Case: Weininger v The Queen (2003) [2003] HCA 14 ; 212 CLR 629
Outcome: cited
do not consider that in these proceedings it is appropriate to punish Radio 2UE by imposing a heavier penalty for the 13 contraventions because of its further breaches of the enforceable undertaking. The circumstances in which those further breaches occurred are nonetheless relevant, in accordance with s 205F(3) of the Act, for the purpose of assessing the conduct of Radio 2UE, because of their contemporaneity and interrelation with the 13 contraventions and the extent to which they went unremedied: cf Weininger v The Queen [2003] HCA 14 ; (2003) 212 CLR 629 at 640 [32] per Gleeson CJ, McHugh, Gummow and Hayne JJ. 11. Alternative enforcement options The Centre identified other enforcement powers that were available to the Authority, which it had not sought to use in this matter. It relied on the context of the Parliament's decision to expand the potential remedies available to the Authority. Under s 143(1) the Authority was given power, by notice in writing, to suspend a licence for such period, not exceeding three months as was specified in the licence or to cancel the licence where a commercial radio broadcasting licensee breached a condition of the licence. In addition, s 205X provided the Authority with power to apply to the Court, where a person had given an enforceable undertaking under s 205W that the Authority considered had been breached, for orders that included any order that the Court thought appropriate (s 205X(2)(d)). The Centre argued, that accordingly, the Authority had formed the view that it would proceed with the less drastic remedy of seeking pecuniary penalties under s 205F and declaratory relief. The Authority and Radio 2UE both argued that the availability of other sanctions was not relevant to the quantum of a civil penalty to be imposed and that Radio 2UE should not be penalised more severely because of the existence of other enforcement remedies which the Authority chose not to employ. I accept that submission. 12. Deterrence A licensee cannot assume that nothing will go wrong. Far less could Radio 2UE have assumed this with Mr Laws who, after all, had been the cause of giving the enforceable undertaking. Radio 2UE had a duty to be vigilant to ensure compliance with its licence, the disclosure standard and the Act. Instead, Radio 2UE committed the contraventions when it permitted Mr Laws to use its licence knowing that, first, Mr Laws had a history of previous contraventions of the disclosure standard (cp Weininger 212 CLR at 640 [32] per Gleeson CJ, McHugh, Gummow and Hayne JJ), secondly, he had an antipathy to the disclosure standard, thirdly, he had six very substantial commercial agreements and, fourthly, he made frequent references during his program to his sponsors, their products and services. But for Radio 2UE's mitigating conduct, I would have imposed higher penalties for these serious breaches. Rather than making declarations, I consider that it is appropriate to state each contravention and the pecuniary penalty I have imposed for it in the formal orders. The Authority, licensees and the public will be able to relate the two together in that way. In my opinion, these contraventions should be marked with severe and substantial pecuniary penalties. The agreed penalties are, overall, but with the three exceptions I have noted, manifestly inadequate, indeed, negligible. To be sure, the Parliament intended that ss 140A and 205F would be a means of dealing with contraventions not calling for more severe sanctions such as suspension of a licence or its cancellation. The Chairman of the Authority aptly described the obligation to comply with the disclosure standard as going to the heart of a licensee's obligations.