This paper provides information about the principles used by the Australian
Communications and Media Authority (ACMA) when making administrative
When making decisions of an administrative character, the ACMA must comply
with the requirements imposed upon it by the Administrative Law package. This
includes both common law and statutory requirements. In this document,
decision-makers are either referred to as 'ACMA', encompassing the Chair and
Board Members, or 'ACMA Officers', being officers to whom powers have been
delegated under the various Acts and subordinate legislation administered by
the ACMA, including the
Australian Communications and Media Authority Act 2005, the
Radiocommunications Act 1992 and the
Telecommunications Act 1997 (the Acts).
Under the Administrative Law package, there are a number of general legal
principles that apply to the making of decisions of an administrative character
by ACMA Officers, including:
- The decision must be within a power properly conferred under the Acts
upon the decision-maker.
- A decision-maker must consider all matters which are relevant to the
making of the decision and not take into account matters which are not
relevant to the making of the decision.
- A decision-maker must not make a decision or exercise a power or
discretion in bad faith or for an improper purpose.
- A decision-maker must ensure that findings of fact are based on
- Decisions must be reasonable.
- Those who may be affected by a decision must be accorded procedural
fairness, which includes the principles of natural justice.
- A decision-maker must properly consider the application of government
- A decision-maker must not exercise a discretionary power at the
direction of another person.
More information about each of the above principles is set out below.
Some of the powers in the Acts, while they are discretionary, are subject to
specific legislative restrictions which must be met before the power can
validly be exercised. For example, before the ACMA can issue an apparatus
licence, section 99 and subsection 100(1) of the
Radiocommunications Act 1992 requires the applicant to submit an
application in writing. Other provisions of the Acts may require the ACMA to do
something before the power can be exercised, for example, under subsection
100(4) of the Radiocommunications Act 1992, the ACMA must take into
account the effect of the device operated under an apparatus licence on
radiocommunications. Other provisions may be less complex, such as limitations
on the exercise of the power in certain circumstances. For example section 104
of the Radiocommunications Act 1992 limits the circumstances in which
a licence, inconsistent with the Australian
Radiofrequency Spectrum Plan or a relevant band plan, can be issued.
Similarly, there are various provisions in the
Telecommunication Act 1997, which require the Australian Competition and Consumer
Commission and/or the Telecommunications
Industry Ombudsman to be consulted, and their views to be taken into
account, before the ACMA can make a particular decision. ACMA Officers must
comply with these limitations and restrictions prior to the making of a
An additional requirement in the making of a decision of an administrative
character, is that the ACMA Officer concerned must hold the necessary
delegation from the ACMA to make that particular decision. An instrument of
delegation signed on behalf of the ACMA itself normally refers to a particular
position number in the ACMA and a particular provision contained in the Acts
that the ACMA is delegating to the occupants of those positions. Prior to the
making of a decision, ACMA Officers must check whether they are the occupant
(either permanent or temporary) of an actual position referred to in the
instrument of delegation, and that the position has been given the authority to
make decisions under the relevant section of the Acts.
If decision-makers fail to abide by legislative requirements, such as the
ones referred to above, or to exercise a decision without the proper
delegation, the decision, and any action taken by the ACMA, is unlawful and is
capable of being successfully challenged in the Courts.
When the decision-maker has determined the facts of a particular case, he or
she is required to give all relevant facts or issues full and proper
consideration and to ignore any irrelevant considerations. These relevant
considerations may be expressly stated in a provision of the Acts or are
capable of being deduced in the context of the purposes and objectives of the
a. Matters which the ACMA is expressly required by the Acts to
These are matters that are specified in the Acts. For example,
paragraph 100(4)(b) of the
Radiocommunications Act 1992 specifies that the ACMA must
have regard to any effect that the proposed apparatus licence may have on other
b. Broad unguided discretions
An example of a broad unguided discretion is the ACMA's power to
specify conditions in a licence under paragraph 107(1)(g) of the
Radiocommunications Act 1992. This requires the ACMA to ensure
that a decision takes into account the objects of the Radiocommunications
Act 1992, the overall scheme of the Radiocommunications Act 1992,
and functions and duties of the ACMA. The discretion is required to be
exercised to promote the objects of the Radiocommunications Act 1992,
set out in section 3, and be consistent with the overall scheme of the
Radiocommunications Act 1992 such as matters concerning forward
planning of the spectrum, interference between users and uses of the spectrum,
and efficient and effective use of the spectrum.
Therefore, in relation to unguided discretionary decisions, what constitutes
a 'relevant consideration' from a legal perspective depends on the nature of
the power or the discretion itself in the context of the Acts, and also on the
particular circumstances in which the power or discretion is exercised. A
relevant consideration must be logically capable of influencing the decision to
be made. Relevance is understood by reference to the link between the matter
being decided and the consideration being taken into account. This is assisted
by taking into account the Act as a whole, including the objects of the
However, a failure to take a relevant consideration into account will not
always result in a Court finding that an error of law has occurred which will
result in the administrative decision being overturned. Such an error would
only arise if the consideration is a matter which is so important that the
decision-maker is required to have regard to it. Clearly, there are some
matters set out expressly in the Acts that are important to the decision, but
there are also a number of other matters set out in the Acts, to which the
decision-maker may have regard, but is not necessarily required so to do. An
example of these are frequency assignment certificates, referred to in
subsection 100(4A) of the Radiocommunications Act 1992, to which the
ACMA may have regard. In addition, there may be other matters
not referred to in the Acts which are relevant and may be taken into account,
but are not so important that it would be an error of law to not have regard to
The decision-maker must not be influenced to make a particular decision in a
particular way. As long as all relevant matters are given full and proper
consideration, the weight to be given to the matter which influences the final
decision, is a matter for the decision-maker to decide. (See Steps in Making a
Considerations are assessed to be irrelevant when they fail to satisfy the
criteria of 'relevance', that is, they lack the necessary logical relationship
with the decision being made. Obviously, if a matter is expressly mentioned in
the Acts as a matter to which the ACMA must, or may, have regard, then it is a
relevant consideration. When making a decision (and giving due regard to the
contexts of the Acts) other matters will be regarded as irrelevant
considerations unless they are capable of influencing the mind of a reasonable
decision-maker in the circumstances of the particular case.
Under the Acts, a decision-maker is granted powers to make a decision. Any
such decision is based, in part, on the particular 'mischief' addressed by the
particular section in the Acts under consideration by the decision-maker, on
the objects and purposes of the Acts, as well as the context of the Acts as a
whole. A decision-maker must not seek to achieve a purpose other than the
purpose for which the power to make a decision has been granted by the
Parliament. Also, a decision must not be made in bad faith. For example, a
decision made with the motivation to upset, or cause a loss to, a particular
person for personal reasons, would be motivated by an improper purpose and be
made in bad faith.
When making a decision that involves a finding of fact there must be
sufficient evidence upon which that finding of fact may be reasonably based.
This is a question of whether the finding of fact was reasonable, based on
issues of logic and common sense, to a reasonable decision-maker in the
circumstances. There is extensive case-law as to the standard of proof and the
evidential burden in relation to the making of administrative decisions.
When making a finding of fact, the standard of proof is generally referred
to as the 'balance of probabilities', not the 'beyond reasonable doubt' test
referred to in criminal trials. This means that the decision-maker need only be
satisfied that a particular fact is more likely, on the basis of relevant
evidence, than not. However, this is subject to the important qualification
that the balance of probability test may vary depending on the nature and
circumstances of the decision to be made. Where the decision is likely to
result in hardship, such as a decision to cancel a licence, the standard of
proof may vary in that more evidence is required. In other words, the more
serious the consequences of making a particular finding then the more evidence
is required in order to establish the facts.
A decision made by the ACMA must, in all the circumstances, be reasonable.
This means that the decision must not be arbitrary or capricious. The reasons
for the decision must have some logical basis capable of being identified and
sustained. While the weight to be given to particular matters is a matter for
the decision-maker, there may be some cases where undue weight given to a
particular matter, or matters, to the exclusion of all others, is unreasonable.
The Courts will impose their own standards as to what is reasonable in the
event of a legal challenge being mounted against the making of a particular
Procedural fairness requires that the person affected by the decision is
given an adequate opportunity to make his or her case. While the applicant for
a licence is obviously a person affected by a decision to issue a licence,
third parties may also be affected. Any person whose interests may be adversely
affected by the making of a particular decision should be given an opportunity
to comment on any evidence or issues (including Government or ACMA policies)
which may lead to the making of an adverse decision. It is particularly
important that the ACMA affords a person natural justice in relation to his or
her particular circumstances, as opposed to general considerations. This is
even more important where the source of the information about the person is a
third party and the person may not be aware of this information, and that it
may be considered by the decision maker when reaching a decision.
It should be noted that this right to be heard usually does not require the
person to be notified of all of the proposed findings of fact which the
decision-maker may consider. However, any inconsistencies, particularly if they
relate to credibility, are required to be put to the person who may well be
able to clear them up. Any unusual findings of fact, or issues which are not
readily apparent to the person may also need to be specifically raised. This
does not normally require the giving of a face-to-face hearing to such persons,
but merely giving the opportunity to put written submissions to be taken into
account by the decision-maker prior to the making of the final decision.
Procedural fairness also requires that a decision-maker is neither biased,
nor have they pre-judged the issue before them. ACMA Officers are required to
keep an open mind and not reach a conclusion about a case until all of the
evidence has been gathered and assessed. Decision-makers should not speculate
about the possible outcomes until all of the evidence has been gathered and the
decision has been made. It is permissible for the ACMA to indicate policies or
other matters which may contribute to a particular decision.
It is an object of the Acts that the ACMA supports the communications policy
objectives of the Commonwealth Government. However Government policy is not law
unless it has actually been reflected in an Act of Parliament. Therefore,
policy and other rules cannot overrule laws as set out in the Acts and any
legal instruments made under them.
It is a principle of administrative law that policy matters are relevant to
the making of a decision, and it is recognised that they play an important role
in ensuring consistency of decision-making, provided that they are applied
Obviously, before considering the application of the policy, decision-makers
should ensure that it is, in fact, intended to be applicable to the particular
circumstances of the case. Having decided that it is, a decision
must be made about whether the application of the policy is
appropriate in the particular circumstances before them. This means that
circumstances of each case must be considered on its merits. If policy is
relevant, then a person who may be affected adversely by it should be advised
of the relevant policy requirements. A person's arguments should be given
proper consideration and balanced against the policy. Any specific arguments as
to why the policy should not be applied in the particular circumstances of the
case must also be considered. It is acceptable to apply a policy, as long as
the decision-maker has given real consideration to whether departure from the
policy would be more appropriate in the circumstances of the particular case.
Any harsh or unusual results arising from the application of the policy, which
may indicate that its application would be unjust in the circumstances, should
be weighed against the purpose and reasons for the policy itself. In order to
apply policy fairly, decision-makers need to be aware of the underlying reasons
for, and objectives of, the applicable policy.
It is unlawful for a decision-maker to make a decision based on the
suggestions or directions of another person or persons. This does not mean that
other persons cannot put forward their views about the appropriate decision,
however, there is no obligation for the decision maker to agree with the other
person or persons.
While the above principles apply to discretionary decisions and exercising
discretionary powers under the Acts, the principles are equally applicable to
any non discretionary powers exercised by a decision-maker under the Acts.
A discretionary decision-making power can usually be identified by the use
of the word 'may'. An example under the
Radiocommunications Act 1992 is the power to issue apparatus
licences in section 100(1) which provides that '...ACMA may
issue to the applicant an apparatus licence...'. An example of a
non-discretionary power is section 102 of the Radiocommunications Act
1992 which requires the ACMA to issue a transmitter licence if a
broadcasting services bands licence has been allocated.
The steps the ACMA follows when making decisions are summarised as
Evidence gathered can be in the form of written applications, technical
reports, letters and other information which may be provided by:
- the person who is directly affected by the decision;
- third parties; or
- as a result of the ACMA's own enquiries.
When assessing evidence the ACMA will decide how much weight should be given
to the evidence to assist in the decision-making process. While it is not
possible to provide an exhaustive list of the matters which will influence the
weight given to particular evidence, examples include:
- where there may be conflicting evidence;
- the nature of the evidence (for example, a document versus actual
- the source of the evidence (is it from independent or authoritative
- the age of the evidence.
Once the ACMA has assessed the evidence it identifies the fact(s) that are
relevant to the decision being made. The fact(s) that have been assessed must
be based on the evidence. Any evidence should be able to show that it is
logically capable of leading to the findings of the fact(s).
In relation to a non-discretionary decision, once the particular fact or set
or facts has been identified, the application of the Acts dictates that the
decision will be made in a certain way.
For a discretionary decision, the ACMA makes a judgment about what is the
preferable decision based on:
- the facts of the case;
- the relevant legislative provisions of the Acts; and
- taking into account any applicable policy.
If a person is not happy with certain decisions made by the ACMA, he or she
may apply to have the decision reviewed. Depending on the particular decision,
this review may be either a merits review (by either the ACMA first and then
the Administrative Appeals Tribunal) or a judicial review (by the Federal Court
If you have any queries relating to this document, please contact the Legal
Services Division at the following address:
Legal Services Division
Australian Communications and Media Authority
PO Box 78
Belconnen ACT 2616