Federal Court of Australia Australian National Imams Council Limited v Australian Communications and Media Authority [2021] FCA 210 File number: NSD 170 of 2021 Judgment of: FLICK J Date of judgment: 11 March 2021 Catchwords: BROADCASTING – application for renewal of broadcasting licence – right of another entity to provide submissions as to whether it could provide a better service – interlocutory application seeking relief before final decision made on renewal application – whether media authority has the power to grant a temporary broadcasting licence PRACTICE AND PROCEDURE – application for interlocutory relief – whether a serious question to be tried – whether the balance of convenience favours the granting of relief Legislation: Broadcasting Services Act 1992 (Cth) ss 3, 4, 5, 82, 84, 90, 91; Pts 1, 4, 6, 6A Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 35 Date of hearing: 11 March 2021 Counsel for the Applicant: Mr R Angyal SC Solicitor for the Applicant: Eakin McCaffery Cox, Lawyers Counsel for the Respondent: Ms P Abdiel Solicitor for the Respondent: Australian Government Solicitor ORDERS NSD 170 of 2021 BETWEEN: AUSTRALIAN NATIONAL IMAMS COUNCIL LIMITED (ACN 122 669 318) Applicant AND: AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY Respondent order made by: FLICK J DATE OF ORDER: 11 MARCH 2021 THE COURT ORDERS THAT: 1. The Interlocutory Application dated 8 March 2021 is dismissed. 2. The Respondent's costs are to be its costs in the cause. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT FLICK J: 1 On 3 March 2021, there was filed in this Court an Originating Application for judicial review. That Application was amended at the outset of the interlocutory application heard this morning. The Applicant is the Australian National Imams Council Limited (the "Imams Council"). The Respondent is the Australian Communications and Media Authority (the "Media Authority"). 2 In issue is the renewal of an existing broadcasting licence, the licensee being Muslim Community Radio Incorporated ("Muslim Community Radio"). Sections 90 and 91 of the Broadcasting Services Act 1992 (Cth) (the "Broadcasting Services Act") confer power to renew a community broadcasting licence. A copy of the renewal application made by Muslim Community Radio was available online on 22 February 2021. That existing licence expires on 31 May 2021. Muslim Community Radio, it is contemplated, will be provided with notice as to whether its licence will be renewed by no later than 3 May 2021. 3 The Imams Council wishes to make submissions to the Media Authority in respect to the renewal application. In very summary form, it wishes to make submissions in respect to both: the content of the renewal application made by Muslim Community Radio, that application being some 154 pages in length; and the manner in which it can and would provide "far superior and far more representative community radio broadcasting services" than that presently being broadcast. 4 The Imams Council contends that the Media Authority's consideration of the renewal application made by Muslim Community Radio is seriously flawed, its contention being that the Media Authority has steadfastly refused to entertain submissions which it wishes to make and which are more clearly articulated in the correspondence from the Media Authority. Those submissions, so the argument runs, are matters so fundamental to the exercise of the statutory power to renew that they "must" be taken into account. The steadfast refusal is said to have manifested itself on three occasions, namely on: 23 October 2020; 2 February 2021; and 17 February 2021. 5 Now before the Court is an Interlocutory Application dated 8 March 2021, that application seeking the following orders: 1. An order until further order that the Australian Communications and Media Authority (ACMA) be restrained from determining whether to grant Muslim Community Radio Incorporated's (MCR) application for renewal of the community radio broadcasting licence BSL No. 1150110 to broadcast in licence area Sydney RA1 on FM frequency 92.1 (the Licence). 2. An order that, despite Order 1, the ACMA be at liberty to grant MCR a temporary renewal of the Licence from 1 June 2021 until final determination of these proceedings. (emphasis in original). If such interlocutory relief is granted, the Imams Council via its Counsel proffers the usual undertaking as to damages. 6 It is respectfully concluded that interlocutory relief should be refused. The balance of convenience weighs against the application. The position of the Media Authority 7 The correspondence from the Media Authority should be set forth as it more clearly reveals what submissions to be made by the Imams Council it will entertain and those which it will not entertain. 8 Insofar as the 23 October 2020 correspondence is concerned, the Media Council there responds as follows to the then stated position being advanced on behalf of the Imams Council: ANIC's intention to apply for the licence You have expressed the view that ANIC is entitled to apply for the licence, and that the ACMA is empowered to consider such an application, pursuant to subsections 91(2A) and 84(2) of the BSA. You have provided a memorandum of advice dated 31 May 2020, to support this view. The memorandum of advice states: The effect of s. 91 (2A), in my view, is that ACMA, when considering a renewal application, is compelled to have regard to the applications of companies other than the licence holder. The ACMA respectfully disagrees with this conclusion. While subsection 91(2A) of the BSA gives the ACMA the discretion to refuse to renew an existing community broadcasting licence in certain circumstances, it does not, as a matter of course, give rise to a process for the allocation of new community broadcasting licences. If the ACMA were to decide not to renew or cancel the existing licence then the ACMA may publish a notice under section 80 of the BSA inviting new applications for the allocation of the licence. … 9 In the next correspondence relied upon, namely that dated 2 February 2021, the Media Authority identifies that which it would take into account as follows: Opposition to the application You have asked the ACMA to provide a date by which ANIC should provide information relating to its opposition to the MCR's renewal application. As noted in the ACMA's letter of 23 October 2020, ANIC is entitled, as are any other members of the public, to submit information to the ACMA about any concerns it may have about the service currently being provided by MCR. If ANIC wishes to provide information relevant to its opposition to the application, please provide this information to the ACMA by 5 March 2021. Please note that, when considering the application, the ACMA will only take into account any information ANIC provides so far as it is relevant to the renewal decision. The ACMA cannot take into account any irrelevant matters when considering the application. … (emphasis in original). 10 The final correspondence relied upon, namely that forwarded by the Media Authority on 17 February 2021, is expressed (in part) in the following terms: Whether or not another organisation might be a 'superior licensee' is not something that the ACMA may consider under subsection 91(2A) of the BSA. The ACMA will consider whether the licence should be renewed, but not whether another licensee might be superior. … 11 In oral submissions, Counsel for the Imams Council stressed that the Media Authority may have been proceeding under a misapprehension. The Imams Council, it was stressed, was not presently applying for a licence – rather it was seeking to make submissions directed (at least in part) to its own ability to provide a "superior" broadcasting service. Whatever construction may be given to the 23 October 2020 correspondence or the 2 February 2021 correspondence, the 17 February 2021 correspondence, it was submitted, committed the Media Authority to the position that it would not entertain submissions directed to the ability of the Imams Council to provide a "better service" or a "superior" service. The Broadcasting Services Act 12 The objects of the Broadcasting Services Act are contained within Pt 1 of the Act. Within that Part, s 3(1)(b) provides as follows: 3 Objects of this Act (1) The objects of this Act are: … (b) to provide a regulatory environment that will facilitate the development of a broadcasting industry in Australia that is efficient, competitive and responsive to audience needs; and … Also within Part 1 is s 4 which is directed to "Regulatory policy". Section 4(2)(a) provides as follows: 4 Regulatory policy (1) … (2) The Parliament also intends that broadcasting services and datacasting services in Australia be regulated in a manner that, in the opinion of the ACMA: (a) enables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on providers of broadcasting services and datacasting services; and ... And s 5 is directed to the role of the Media Authority, providing in s 5(1)(b) as follows: 5 Role of the ACMA (1) In order to achieve the objects of this Act in a way that is consistent with the regulatory policy referred to in section 4, the Parliament: (a) … (b) confers on the ACMA a range of functions and powers that are to be used in a manner that, in the opinion of the ACMA, will: (i) produce regulatory arrangements that are stable and predictable; and (ii) deal effectively with breaches of the rules established by this Act. … 13 The terms of the provisions of immediate relevance to the present application within the Broadcasting Services Act are to be found within Pt 6, that Part being headed "Community broadcasting licences". Within Pt 6, s 90(1) provides as follows: The ACMA may renew a community broadcasting licence if the licensee makes an application for renewal of the licence, in accordance with a form approved in writing by the ACMA. 14 Also within Pt 6, s 91 provides: ACMA may renew community broadcasting licences (1) Subject to subsection (2), if the ACMA receives an application under section 90, the ACMA may, by notice in writing given to the licensee, renew the licence for: (a) if: (i) the ACMA renews the licence after the time when the licence was due to expire; and (ii) under subsection 90(1E), the licence remained in force until the ACMA made a decision on the application; the period: (iii) beginning immediately after the time when the ACMA made a decision on the application; and (iv) ending at the end of the period of 5 years that began immediately after the time when the licence was due to expire; or (b) otherwise–the period of 5 years beginning immediately after the time when the licence is due to expire. (2) The ACMA must refuse to renew a community broadcasting licence if the ACMA decides that subsection 83(2) applies to the licensee. (2A) The ACMA may refuse to renew a community broadcasting licence that is a broadcasting services bands licence if, having regard to the matters in paragraphs 84(2)(a) to (f), it considers that it would not allocate such a licence if it were deciding whether to allocate the licence to the licensee. (3) The ACMA is not required to conduct an investigation or a hearing into whether a licence should be renewed. 15 Section 84(2), being the provision referred to in s 91(2A), provides as follows: In deciding whether to allocate a community broadcasting licence that is a broadcasting services bands licence to an applicant or to one of a group of applicants, the ACMA is to have regard to: (a) the extent to which the proposed service or services would meet the existing and perceived future needs of the community within the licence area of the proposed licence; and (b) the nature and diversity of the interests of that community; and (ba) in the case of a community radio broadcasting licence–the extent to which the proposed service or services would provide material of local significance; and (c) the nature and diversity of other broadcasting services (including national broadcasting services) available within that licence area; and (d) the capacity of the applicant to provide the proposed service or services; and (e) the undesirability of one person being in a position to exercise control of more than one community broadcasting licence that is a broadcasting services bands licence in the same licence area; and (f) the undesirability of the Commonwealth, a State or a Territory or a political party being in a position to exercise control of a community broadcasting licence. 16 Pt 6A is directed to "Temporary community broadcasting licences". A serious question to be tried? 17 As framed, the interlocutory application raises at least two separate but inextricably linked questions, namely whether there is a serious question to be tried as to whether: first, the Media Authority when considering a renewal application can exclude from its consideration submissions made by another entity that the existing licence should not be renewed because there was available (or at least the prospect of there being available) a "better" or "superior" service; and second, the Media Authority could grant a "temporary renewal" of a licence, such being the subject of the second of the two orders sought in the interlocutory application. 18 As to the former question, the position of the Media Authority was that the Broadcasting Services Act drew a distinction between the initial grant of a licence, in circumstances where competing applications would necessarily have to be considered, and the renewal of a licence once granted. It was no part of the renewal application process, so the submission ran, to take into account submissions directed to whether a proposed competitor could provide a better or superior service if granted the licence. Without being exhaustive, Counsel for the Media Authority maintained that: the statutory provisions enabling the renewal of licences, namely ss 90 and 91, directed attention to the matters to be taken into account, namely those "matters in paragraphs 82(2)(a) to (f)" and that none of those matters extended to a consideration as to the prospect of a better service being potentially available on a licence renewal application; and sections 3(1)(b), 4(2)(a) and 5(1)(b)(i) referred to the objective of facilitating a broadcasting industry that is "efficient, competitive and responsive to audience needs"; a regime which did not impose "unnecessary financial and administrative burdens"; and regulatory arrangements which "are stable and predictable". Those provisions, it was submitted, supported a construction of the Broadcasting Services Act which promoted (for example) the "stability" required of existing licensees having their licenses renewed and told against a construction which permitted on a renewal application submissions being received which were more appropriate to be advanced when a licence was first granted. What does not sit well with the position of the Media Authority, with respect, is that it comes tantalisingly close to – or is at least, the very start of a progression towards – a proposition that competition between service providers largely comes to an end after a broadcasting licence is first granted. The residual concern is that such provisions do not necessarily exclude a conclusion that a licence should not be renewed because a limited resource such a broadcasting frequencies can be better utilised. So much, it may have been thought, promoted efficiency. Upon greater consideration of the submissions, which time does not presently permit, that may do a considerable disservice to the positon of the Media Authority. Nor does it sit well with a more generally expressed concern that the statutory regime does in fact contemplate a renewal process after a five year licence period expires. 19 It is sufficient for present purposes to conclude, and contrary to the submission of the Media Authority, that there is a serious question to be tried as to whether the position it put forward in its 17 February 2021 correspondence is correct. 20 The latter of the two questions, namely whether there is a power to grant a temporary licence, is to be answered in the negative. Upon the basis of the submissions advanced today, there is, with respect, no serious question to be tried. The only provisions which expressly addresses the power to grant temporary licences are those found in Pt 6A. But it was common ground that no provision within that Part has any present relevance. The fact, however, that the Act expressly addresses the circumstances in which "temporary" licences can be granted and the absence of any express reference in provisions such as ss 84, 90 and 91 to a "temporary" licence, with respect, lends considerable support to a conclusion that those provisions do not contemplate the grant of a temporary licence. Section 91(1), for example, does not readily lend itself to a construction such that it should read: "… ACMA may … renew the licence or renew the licence temporarily …". Also, supporting the same conclusion are provisions such as ss 3(1)(b), 4(2)(a) and 5(1)(b)(i). A power to grant a temporary licence would not, for example, provide "efficiency" (s 3(1)(b)) or provide "stability" (s 5(1)(b)(i)) but could foster "unnecessary financial …. burdens on providers of broadcasting services" (s 4(2)(a)). 21 Left to one side, for present purposes, is the potential relevance of the fact that s 91(1) is expressed to be "subject to subsection (2)" but not subject to "subsection (2A)". Section 91(2A), in turn confers a discretionary power to refuse to renew "a broadcasting services band licence". 22 If the conclusion were to be reached that there is no serious question to be tried as to the existence of a power to grant a temporary licence, Counsel for the Imams Counsel foreshadowed that one option open to the Court would be to grant the first of the orders sought in the Interlocutory Application but to refuse the second. To pursue that course, however, would run the very real risk that the existing broadcasting licence would expire on 31 May 2021 with no ability to renew it, even on a temporary basis. 23 The suggestion that an expedited final hearing could provide an earlier resolution of the concerns of the Imams Council was also no sufficient answer. The prospect of an expedited final hearing remained just that, a prospect without certainty. And, even if an expedited hearing could be accommodated, there would be no certainty that judgment would or could be delivered sufficiently in advance of 31 May 2021 to permit the Media Authority to properly consider such submissions as may be made by the Imams Council if permitted. 24 However these matters could be resolved, and even if it were to be concluded that there is a serious question to be tried as to the existence of a power to grant a temporary licence, the fate of the application for interlocutory relief is to be resolved not by reference to the existence of any serious question to be tried, but rather by reference to the balance of convenience. The grant even on an interlocutory basis of a temporary licence, it may nevertheless be noted, has some of the hallmarks of final relief but would in any event be mandatory interlocutory relief. Irrespective of considerations going to the balance of convenience, a question would otherwise have arisen as to whether Order 2 as sought in the 8 March 2021 Interlocutory Application should – as a matter of discretion – be granted. The balance of convenience 25 The balance of convenience, it has been concluded, weighs against the grant of any interlocutory relief. 26 A number of considerations dictate this to be the preferable conclusion. 27 First, the questions of statutory construction being presently advanced on behalf of the Imams Council can be – and should be – resolved once a final decision has been made by the Media Authority on the renewal application. In the event that it pursues the course set forth in its 17 February 2021 letter, and that course is ultimately found to be misplaced – and there is a serious question to be tried as to whether that course is correct – the decision of the Media Authority could be set aside and appropriate orders then made. Its decision, moreover, would fully expose what consideration has in fact been given to the submissions of the Imams Council. Just as there seems to have been a change in the position of the Media Authority as first expressed on 23 October 2020 to that more recently expressed, it is preferable to await the decision on the renewal application. 28 If the Imams Council's submission ultimately prevails, such prejudice as it may suffer does not detract from the objective of allowing the renewal process to continue. 29 Second, the Imams Council has not to-date made any submission to the Media Authority. A submission that it can provide a better service necessarily involves criticism of or challenges to the adequacy of the existing broadcasting service. There is no reason why those more limited submissions have not to-date been advanced. The submissions proposed to be advanced by the Imams Council are not, of course, so limited. It wishes time to consider the lengthy renewal application of some 154 pages which it first accessed on 25 February 2021. That renewal application, it is submitted, may contain new "proposals" as to the service proposed to be offered if the licence be renewed – s 82(2)(a), (ba) and (d) of the Broadcasting Services Act referring to "the proposed service or services". Whether or not new "proposals" are contained in the renewal application, and there were no submissions advanced as to what was in that renewal application, it would be necessary for the Imams Council to be afforded sufficient time to review, comprehend and respond to the application. But there is a dearth of evidence as to what the Imams Council has been doing since 25 February 2021 in order to progress whatever submission it wishes to make. An assertion that it has been preparing for the present interlocutory hearing is, with respect, less than persuasive. 30 Third, not to be ignored are the interests of the existing licensee and such members of the public who avail themselves of that broadcasting service. The circumstances surrounding the present licence renewal application include the fact that there have not to-date been any complaints received by the Media Authority directed to the existing service. 31 Placed to one side when considering the balance of convenience are the administrative arrangements whereby the Media Authority wishes to have all submissions received by 12 March 2021 and thereafter a period permitting an assessment of the renewal application and any submissions prior to a decision being communicated to the existing licensee no later than 3 May 2021. As Counsel for the Media Authority correctly conceded, if it were to be ordered that a consideration of more extensive submissions that may be advanced by the Imams Council required further time, that consideration would take place. 32 Submissions advanced on behalf of the Imams Council that the grant of interlocutory relief would cause no harm to Muslim Community Radio or harm to the community are rejected. The grant of interlocutory relief runs the very real risk of the existing licence expiring without any ability to renew it on a temporary basis. CONCLUSIONS 33 There is a serious question to be tried as to whether the position advocated by the Media Authority in its 17 February 2021 letter is correct. But, on the basis of today's submissions, there is no serious question to be tried in respect to the asserted power to grant a temporary renewal of a licence. 34 That being so, it would be doubted whether either of the two interlocutory orders sought by the Imams Council should be made. 35 However those questions be resolved, the balance of convenience lies in favour of refusing interlocutory relief. THE ORDERS OF THE COURT ARE: 1. The Interlocutory Application dated 8 March 2021 is dismissed. 2. The Respondent's costs are to be its costs in the cause. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Flick. Associate: Dated: 15 March 2021