RG Capital Radio v Australian Broadcasting Authority

[2001] HCATrans 458

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S166 of 2001

B e t w e e n -

RG CAPITAL RADIO LIMITED

Applicant

and

AUSTRALIAN BROADCASTING AUTHORITY

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 20 NOVEMBER 2001, AT 12.13 PM

Copyright in the High Court of Australia

MR S.J. GAGELER, SC:   If the Court pleases, I appear with MR S.B. LLOYD for the applicant.  (instructed by Gilbert & Tobin)

MR P.J. HANKS, QC:   If the Court pleases, I appear with MS K.A. REES for the respondent.  (instructed by the Australian Government Solicitor)

McHUGH J:   Yes, Mr Gageler.

MR GAGELER:   Your Honours, the very short special leave question is whether the preparation of a licence area plan under section 26 of the Broadcasting Services Act is properly characterised as a decision of an administrative character so as to fall within the scope of the Administrative Decisions (Judicial Review) Act or as a decision of a legislative character so as to fall outside the scope of that Act.

McHUGH J:   Why is that a special leave point?

MR GAGELER:   For two reasons, your Honour.  One is that the test for determining administrative character as opposed to legislative character is one that has not been looked at in this Court for a very long time, since the days of Chief Justice Latham.  The second is the application of the test to this particular statutory provision is of immense commercial and practical significance, given two things:  one is that the method of allocation of broadcasting licences under section 36 of the Act is now to be a price-based system; and secondly, because in accordance with the ordinary operation of sections 45 and 47, licences, once issued, will continue, as it were, in perpetuity and ‑ ‑ ‑

McHUGH J: Now, it has been said that there is no simple rule for determining a question of whether a determination pursuant to section 26 of the Act was administrative or legislative in character. What is the rule that you would seek us to declare which would resolve these questions? The rule, your Honour, is one that is a rule of discrimen rather than balancing and by discrimen I mean discrimen is that which one sees in the appeal book at page 15, paragraph 44 in the extract from the decision of the Full Court of the Federal Court in the Tooheys Case.  Your Honours will see that invokes the earlier formulation of Chief Justice Latham in the Grunseit Case which, really, your Honour, was the last time that this Court seriously looked at this question.

McHUGH J:   Yes, but do you attack that rule?

MR GAGELER:   No, no, your Honour, what I say is that that is the rule and your Honours will see it also at page 16, paragraph 46, in De Smith which is another formulation of the rule.  What I say is that although having stated the rule or at least set it out, what the Full Court failed to do was apply the rule, but, rather ‑ ‑ ‑

McHUGH J:   That is hardly a special leave point, that they failed to apply it.

MR GAGELER:   No, well, your Honour, the reasoning of the Court, although it sets out what can be interpreted as a rule, does not go on to apply the rule as a rule and that is the fundamental error.  What it goes on to do is to misapply the discrimen - and I will come back to that in a moment, your Honour, how it misapplied the discrimen – but to go on ‑ ‑ ‑

McHUGH J:   Yes, but what Chief Justice Latham spoke about was the general distinction.  The borderland between administrative law and legislative law is blurred.  Depending upon the Tribunal, one might say an activity or an action is legislative and in another context, it might be administrative.

MR GAGELER:   What he said, your Honour, is that there is a well‑accepted formulation of the distinction between a legislative act and an administrative act drawn from American cases to which he referred to.  He said that the legislative act is one that formulates a rule and he said that an administrative act is one that applies a rule or rules to particular circumstances.  That is what he said.  That is the discrimen or rule which I seek to invoke in this case and, your Honours, on analysis ‑ ‑ ‑

CALLINAN J:   But once you invoke it, you still have to do the exercise that the court did to look at the various characteristics of the functions that were being performed to weight them up and to form a view perhaps on balance as to which side of the line the activity falls on.

MR GAGELER:   Yes, but, your Honour, the line that one is looking at is whether one is concerned with the formulation of the rule, so as to be legislative, or the application of a rule for particular circumstances, so as to be executive or administrative.  The balancing exercise, or the weighing‑up exercise that the court engaged in here was not aimed at coming up with a resolution of that question.  What the court did here was simply to attempt to answer that question at page 17 - and I must come back to that - but then to go on and weigh up a number of other circumstances which, in our submission, are either largely or wholly irrelevant.

McHUGH J:   But look what the court did in this case.  It referred to Commonwealth v Grunseit.

MR GAGELER:   Yes.

McHUGH J:   It referred to the fact that presence or absence of parliamentary control has often been seen as decisive.  It noted the publication of the licence area plan.  It noted the wide public consultation, the wide policies considerations, the power to vary a licence plan, the absence of executive variation or control and it pointed to the important fact that although section 204 of the Act lists decisions reviewable under the AAT legislation, a decision under 26(1) is not one of them.

MR GAGELER:   Yes, but that last point, your Honour, to pick it up is just totally irrelevant.  What on earth has that to do with the question of whether it is legislative or administrative in character.  It is entirely up to Parliament, usually on the recommendation of the Administrative Review Council, whether a particular decision of an administrative character is made one that is ‑ ‑ ‑

McHUGH J:   But why is it not a factor indicating that in the view of Parliament this is not a matter to come before the AAT?

MR GAGELER:   Your Honour, because it says nothing at all about whether it is a decision of an administrative character or a decision of legislative character.  I accept that decisions that come before the AAT are decisions of administrative character but there is a whole host of decisions of administrative character in the Commonwealth sphere that do not come before the AAT.

McHUGH J:   I would have thought it was some evidence that Parliament thought that these decisions are not administrative decisions and that they are not matters that ought to come before the AAT.

CALLINAN J:   Because some decisions under the Act do come.  They are specifically provided for, are they not, under section 204?

MR GAGELER:   Yes, and, your Honours, there are different sorts of administrative decisions that are more appropriate for merits review before the AAT than others.

CALLINAN J:   All that is being suggested to you is that it is an indication and I do not see, myself, at the moment, why that is wrong.  It is an indication, is it not?

MR GAGELER:   Your Honour, it would be the slightest of indications.  Can I illustrate the main point in the case, your Honours, by handing up copies of the precise plan in question and the problem with the way in which the Full Court dealt with the case was not to focus on the decision in question.  It is said to be administrative rather than legislative.  If your Honours look at what is described as a plan, what your Honours will see on the second page is a determination.  Your Honours will see:

LICENCE AREA PLAN – GOSFORD RADIO – AUGUST 2000

DETERMINATION

The Australian Broadcasting Authority hereby makes this plan for broadcasting services in the Gosford area –

Then relevantly the next paragraph:

three commercial radio broadcasting services . . . are to be available in the area described at Attachment 1.1 –

and then, the next sentence says:

The characteristics, including technical specifications, of the services that are to be available in the area described at Attachment 1.1 are set out in Schedule and Attachments 1.2 –

and following.  One goes to the schedule, your Honours.  The schedule begins at the next page with the heading and it says:

The Schedule sets out:

.          the category of each of the services . . . 
.          the status of the service . . . 
.          the frequency for each transmitter . . . 
.          the service licence number . . . 
.          the number of transmitters . . . 
.          the transmitter specification –

and so on.  Then the table, your Honours, which is the next page, has in the left‑hand column “Service Category”.  Your Honours will see the first after the two “Nationals” is a “Commercial” “Licensed” service with a specific service number which is then referred to in Attachment 1.4.  That is one of my client’s licences.  Then, two further down there is another “Commercial” licence with another serviced licence number referred to in Attachment 1.6.

One goes to Attachment 1.4 numbered in the top right‑hand corner.  What your Honours will see is some very specific provisions governing the terms of my client’s licences.  Your Honours will see “TECHNICAL SPECIFICATION – FM RADIO”.  There is a specification of the “Transmitter Site”.  There is a specification of the “Emission”.  There is a specification of the “Output Radiation Pattern”.

Now, why all of that matters - and your Honours will see the same thing if you turn to 1.6, very specific, dealing specifically with my client’s licence, not some general map of the area and why it matters, why it has a direct and immediate effect is under section 109(1) of the Radio Communications Act, which your Honours will have separately, I hope.  Under section 109(1)(d) it becomes “a condition” of the transmitter licence which is necessary to operate the broadcasting service that the transmission occur in accordance with the:

technical specifications determined by the ABA under subsection 26(1)  ‑ ‑ ‑

McHUGH J:   Yes, but you are zeroing in on the plan in so far as it affects your client, but it is part of three stages of decision‑making, is it not?

MR GAGELER:   Yes, and at each stage, your Honour, the process becomes more specific and certainly at the second and third stages – this is the third stage, perhaps – it is clearly enough, in our submission, of an administrative character in the sense that it has a direct and immediate effect on licensees and, your Honours, it involves the application to particular licences of the general rules set out in section 23 of the Act. 

Section 23 your Honours will see at page 8 of the application book and section 23 is certainly in general terms and invokes wide considerations but the application to a specific instance of rules set out in that nature is, in our submission, the hallmark of the exercise of administrative power.    So, your Honours, where the Full Court went wrong, indeed, to identify the central error in the Full Court’s reasoning, it is at page 17 in paragraph 48.

CALLINAN J:   But the emphasis under section 26 is upon broadcasting services rather than upon an individual. Is not the emphasis upon who are going to receive the benefit or be within the signal area of a new station, a service to the community? Is not that the real emphasis? That is the real emphasis.

MR GAGELER:   That is one aspect of it, though, your Honour, yes.

CALLINAN J:   And that does not look to me like an administrative matter.

MR GAGELER:   What I have sought to show, your Honour ‑ ‑ ‑

CALLINAN J:   Meeting the demand or the need for services to a section of the community.

MR GAGELER:   That is definitely one aspect of it, your Honour.

CALLINAN J:   Well, it looks very legislative, does it not, rather than administrative?

MR GAGELER:   Your Honour, I am not saying that it is a question that can only be answered one way, but it is a question that is to be answered by the application of the principle that I sought to identify earlier.

CALLINAN J:   Once you say that it could be capable of being answered in more than one way and the Full Federal Court ‑ ‑ ‑

MR GAGELER:   That is what makes it interesting.

McHUGH J:   It might make it interesting.  It does not make it a special leave case.

CALLINAN J:   Exactly.

MR GAGELER:   Your Honours have granted special leave in other cases where there has been an issue.  Indeed, it is one of the tests sometimes applied in the granting of special leave.

CALLINAN J:   You are not suggesting we are not always consistent, are you, Mr Gageler, in these matters?

MR GAGELER:   I would be the last to suggest that, your Honours.  Page 17 paragraph 48, to identify the error, and it is in the first of the quotations from Justice Sundberg that:

a licence area plan under subs 26(1) of the BS Act “creates new rules of general application to those wishing to provide broadcasting services in the licence area, rather than applying such rules in a particular case to a particular broadcaster”.

Your Honours only need to look at the actual decision to realise that that is, at the very least, a totally inadequate identification of what is done under section 26. There is a very particular application of general principles to particular licences. To follow through, that was then used as a reason for dismissing the discrimen which, in our submission, is the only applicable discrimen in the Tooheys Case going back to the Grunseit Case and then applying a sort of balancing approach that one sees summarised in page 25 under the heading “Summary”, paragraph 55 with a number of dot points.

The first three of the dot points, which your Honours see at page 26, all fail to come to grips with the relevant discrimen and the last dot point, your Honours have said that it may be relevant.  I will have to accept for the purposes of argument that the availability of merits review may be some faint indication but it is hardly something that weighs in the scales.  If your Honours please.

McHUGH J:   Thank you.  The Court need not hear you, Mr Hanks.

The Court is of the opinion that there is no reasonable doubt of the correctness of the decision of the Full Court.  The application is dismissed with costs.

AT 12.31 PM THE MATTER WAS CONCLUDED