In Australian National Imans Council Limited v Australian Communications and Media Authority  FCA 913 (11 August 2022), the applicant (ANIC) brought an application for judicial review under s5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).
ANIC sought to set aside a decision of the first respondent (ACMA) under the Broadcasting Services Act 1992 (Cth) to renew the community broadcasting licence of the second respondent, Muslim Community Radio Incorporated (MCR).
ACMA filed a notice of objection to the competency on the basis that ANIC lacked standing, as it was not a person aggrieved by a decision.
MCR had held a community radio broadcasting licence for the Sydney area since 2001. MCR’s 2015 licence was due to expire on 31 May 2021 and it applied to renew that licence.
ANIC is Australia’s Muslim peak body representing mainstream Islam and Muslims in Australia. It applied to the court to restrain ACMA from determining the renewal application.
The proceeding was stayed to allow ACMA to make a decision on MCR’s licence renewal application. The judicial review challenge followed ACMA’s decision to renew MCR’s licence.
The court held that ANIC had standing as a person aggrieved by ACMA’s decision (to renew MCR’s licence to bring the application challenging ACMA’s decision under the ADJR Act), but that ANIC’s grounds of review must be rejected.
One of the main issues that arose in the judicial review challenge was whether ACMA had to consider ANIC as a potential competing licensee when deciding to renew MCR’s license under s91 of the Broadcasting Services Act (at -). This was an issue of statutory construction.
Jagot J held that ACMA was not bound to consider whether a third party could provide a superior community broadcasting service (to that provided and proposed to be provided by the licensee) in deciding whether or not to renew a community broadcasting licence. However, if ACMA chooses to consider that issue, then that is a matter for ACMA (at ).
As to whether ANIC was ‘a person who is aggrieved by a decision’ under s5(1) of the ADJR Act, the court noted that the law relating to standing is not confined to a consideration of the subject matter, scope and purpose of the statute under which the decision is made.
Jagot J explained how the concept of a person aggrieved depends on the interest affected by the decision, by reference to various authorities (in particular, Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2014) 254 CLR 394) (at -).
The court held that ANIC had a special interest “in the fact of MCR being able to continue to broadcast services focusing on its community purpose or community interest of ‘religious – Islamic’” (at ).
Jagot J explained (at ): “I consider that there is a material difference between: (a) a body (be it religious or not) seeking to challenge a decision which it considers is an affront to its religious, moral, ethical or other beliefs (as in [the] Right to Life [case]), and (b) a body (be it religious or not) seeking to challenge a decision which directly relates to a public service intended to be for the benefit of at least some of the very persons the body represents (relevantly, Muslims in the Sydney area)”.
Finally, the court considered whether ACMA owed a duty to give procedural fairness to ANIC in making the renewal decision (at -). The court held that in the context of the subject matter, scope and purpose of the Broadcasting Services Act, ANIC’s status as a potential competitor to MCR – as a licensee for the community purpose of interest in the Sydney area – did not find an obligation by ACMA to give ANIC procedural fairness in deciding whether or not to renew MCR’s licence (at ).
However, as ANIC had a real, direct and sufficient interest in the renewal decision, this supported the conclusion that ACMA owed ANIC a duty of procedural fairness in making the renewal decision (at ). Having regard to the content of the duty of procedural fairness in these circumstances, it was not breached by ACMA.
Dan Star QC is a Senior Counsel at the Victorian Bar, ph 03 9225 8757 or email email@example.com. The full version of these judgments can be found at austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.