Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal

Re: AMALGAMATED TELEVISION SERVICES PTY LIMITED and ORS
And: AUSTRALIAN BROADCASTING TRIBUNAL
No. NG971 of 1988
FED No. 276
88 ALR 287
Broadcasting - Statutory Declarations

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.(1)

CATCHWORDS

Broadcasting - request by Broadcasting Tribunal that television licensees complete form of annual return powers of Tribunal to require (or direct) completion of parts of return concerning costs of producing Australian programs and licensees' staffing profiles whether any such power validly exercised - whether form of return and accompanying notice instructing licensees as to manner of completing return so vague and uncertain that requirement that it be completed an improper exercise of power.

Broadcasting Act 1942, ss. 16, 17, 17A, 123 and 124

Television Program Standard 14

Administrative Decisions (Judicial Review) Act 1977, s. 13

Statutory Declarations - requirement by Broadcasting Tribunal that annual return required to be completed by television licensees be verified by statutory declaration - no express power conferred - power of Tribunal to require licensees to make statutory declaration.

Statutory Declarations Act 1959, ss. 6 and 11

Statutory Declarations Act 1911, s. 3

Oaths Act 1900 (N.S.W.), ss. 21 and 25

HEARING

SYDNEY

#DATE 31:5:1989

Counsel for the Applicants: Mr W.H. Nicholas, QC and Mr T.D. Blackburn

Solicitors for the Applicants: Mallesons Stephen Jaques

Counsel for the Respondent: Mr P. Roberts

Solicitors for the Respondent: Australian Government Solicitor

ORDER

Declare that the respondent was not empowered to require the applicants to furnish a statutory declaration to verify the truth of the information provided in schedules B to L inclusive of form ABT-12 being exhibit "SPO'H 1" to the affidavit of Sean Patrick O'Halloran sworn 12 May 1988 and filed in the proceedings.

Declare that the decision of the respondent made on 29 January 1988 and the requirements of the respondents made on 25 March 1988 and 15 April 1988 were invalid insofar as they required completion of the statutory declaration in schedule A to the aforesaid form ABT-12 but that otherwise the said decision and requirements were valid.

Order that the applicants pay one third of the respondent's costs of the application.

Order that the respondent be restrained up to and including the hearing of any appeal from the declarations made herein from requiring the applicants or any of them to complete schedules K and L to the said form ABT-12.

Order that the time within which the applicants or any of them may appeal from the declarations herein be abridged to 14 June 1989.

Note the undertaking of the applicants that they will prosecute any appeal with due diligence.

There be liberty to apply on 2 days' notice.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court

JUDGE1

This application for judicial review calls into question decisions made by the respondent, the Australian Broadcasting Tribunal ("the Tribunal"), relating to its requirement that a number of licensees of television stations provide it with certain information. The decisions in question are the decisions of the Tribunal of 29 January 1988 to require each of the applicants to furnish to the Tribunal the information sought in schedules K and L of the Tribunal's form of annual return and to complete the statutory declaration in schedule A thereof. A number of grounds of review are relied upon, but in essence the applicants have submitted that the Tribunal had no power to require them to provide the information sought nor to require that it be verified by statutory declaration.

The Return and the Notes Thereto

It is first necessary to consider the relevant provisions of the form of annual return of which schedules A, K and L form part. The front page of the form shows the name of the Tribunal. There follow the words, "Annual Return 1987 - Commercial Television Licensees - Schedules". There is then a table of contents. Schedule A is referred to as "Statutory Declaration", schedule K as "Cost of Production of Australian Programs" and schedule L as "Staff Profile". The statutory declaration requires the declarant to say that he is authorized to give "this certification" on behalf of the licensee, that the information shown on the return and all the attachments thereto is true and complete in all respects to the best of his knowledge and belief, that any apportionment made is on the basis of information available in the licensee's records, that any estimates that have been made are clearly identified within the schedules, that the basis and details of such estimates are explained in comments attached, and that the information shown on the return and all the attachments complies with the instructions given in the "Notes on completion of annual return", to the best of his knowledge and belief. I shall refer to these notes in due course. The declaration concludes with the usual statement that the declarant has made it by virtue of the Statutory Declarations Act 1959 and subject to the penalties provided by that Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in the declaration to be true in every particular.
Schedule K is entitled, "Cost of Producing Australian Programs". Under the heading "Production Costs" the licensee is required to state the costs incurred in producing different categories and subcategories of programs. The licensee is also required to differentiate amongst production costs incurred for local programs, programs produced for a network and programs that have been produced by an outside organization. The various programs are classified as Drama; Children's Programs; News, Current Affairs and Documentaries; Education, Arts, Religion and Information; Sport; Quiz, Panel and Game shows; and Light Entertainment. Each of these categories is broken up into further categories. For example, drama is broken up into episodic/series, serial, mini-series, telemovies, "other", and dramatized documentaries. Light entertainment is broken up into today/shows and tonight/shows, variety/musical specials, variety general, music and video music.
Schedule L requires the licensee to indicate the number of staff employed by the licensee company in its television activities as at 30 June in the year in question. The categories of staff designated are executives, sales, production, operational/technical, administration, program type (broken up into news/current affairs, commercials, sport, childrens, drama, light entertainment and "other"), programming, engineering, maintenance, accounting, and other administration. The licensee is required to break up the staff in each category into numbers of males and females employed. It is also required to distinguish between full time staff and contractors and part time staff and contractors, to show the total permanent staff divided into males and females, to show the numbers of casual staff, and to show the grand total in each category.
Accompanying the form of return was a document similarly entitled to the return but bearing the title, "Notes". The notes follow the order of the return itself beginning with schedule A which is the statutory declaration and concluding with schedule L which is Staff Profile. The notes to schedule A say that the declaration must be given by the manager or secretary of the licensee. It then contains instructions, to which it is unnecessary to refer, as to how the declaration is to be compiled.
The notes to schedule K begin with the following paragraphs:-

"The costs recorded here represent the total expenditure by the licensee during the financial year on Australian programs, whether broadcast or not. Incurred means taken up in the books of account. Costs to be shown, by category, are to be the actual production costs as calculated by the licensee in accordance with the costing principles specified in Annexure 1. No allocated overhead or general administration costs should be included."

The emphasis is mine.

Schedule K itself has no annexure 1, but my attention was drawn by counsel for the Tribunal to schedule C which is entitled, "Profit & Loss Account". Annexure 1 to that schedule is entitled, "Principles and Practice of Program Costing". No principles are stated. But counsel submitted that a reading of the notes to schedule C suggested that the intention was that the licensee should set out the principles and practice of program costing which had been used by it. Thus, so counsel said, the principles were not provided for licensees by the Tribunal. Rather, it was for them to indicate to the Tribunal the principles which had been used in the compilation of their accounts.
The two introductory paragraphs which I have quoted from the notes concerning schedule K are followed by three pages of closely written explanations and instructions. These begin with an indication of the meanings which certain expressions are intended to have. The meanings of local productions, network productions and outside productions are explained. Under the heading, "Outside Productions", are to be included, inter alia, the full purchase price of programs acquired complete from an outside producer where such programs are "intended for telecast" on the licensee's station only. One of the submissions made by counsel for the applicants is based on the use of the expressions, "whether broadcast or not" (which I have earlier emphasized), and, "intended for telecast".
After a reference to "Packager Program Production", there appears an indication of what is on the following pages of the notes. It is said:-

"On the following pages, the categories under which costs are required are defined. A general guide to determining the category under which a program is to appear are the content points that are allocated under each heading."

I have emphasized the words "content points" because they form the basis of a further submission relied upon by counsel for the applicants.

There follow definitions for each of the subcategories of program referred to in schedule K. Thus, in relation to drama, there are definitions of episodic/series, serial, mini-series, and short drama itself divided into telemovie, other short drama and dramatized documentary. The other major categories are subdivided in this way. Because of some of the submissions which were made, it is necessary to quote some of the paragraphs of this part of the notes to schedule K. The definitions of episodic/series and mini-series are as follows:-

"1.1 Episodic/series

Drama productions where episodes consist of self contained plots which can be screened in any order and in which there would be a number of sustaining characters throughout the series and theme and settings may be common to all episodes. ........ ........ ........ ........ ........ ..... 1.3 Mini-series

Limited series of drama which would normally be less than 13 hours in total length which is either an extended but self-contained drama made for television, which contains a major continuous plot enhanced by minor plots, or an anthology of drama works made for television with no continuity of character setting or plot as between episodes. It is generally made to be broadcast under one generic title."

The submission requires that these subcategories be contrasted with the subcategory, "Arts", which is in the category, "Education, Arts, Information and Religion". The subcategory of arts is as follows:-

"4.2 Arts

Programs of fine music, art, ballet, literature, classical drama and the like, including serious reviews and criticisms of all such art forms."

Again the emphasis is mine.

The opening notes to schedule L are as follows:-

"This schedule requires information on the number of staff employed by the Licensee on 30 June in its television activities as permanent full time, permanent part time and casual employees.

Contractors are to be included as permanent full time or permanent part time employees if they fall within the definitions given below. In addition, each category of staff is to be further subdivided into male or female. Note

This schedule is intended as a staff profile only and is not linked to any costs in the Profit and Loss Account (Schedule C)."

There are definitions of full time, part time and casual staff. It is said that these staff levels are further subdivided according to the categories shown in the schedule, that is, schedule L. There follows a note which says:-

"If you feel that the numbers quoted are not a true representation of the licensee's staff levels, the schedule should be noted, and full details attached."

There is then some explanation about executive and sales staff followed by a reference to production staff which is as follows:-

"Production

(These staff would only be employed if the station produced programs or commercials.) Staff involved with the technical, operational, administrative and creative production of all programs and non-program material by the station, e.g. Technical and operational - directors, floor managers, operations (camera, sound, lighting, staging), post production, art department, make-up, wardrobe, set construction, film processing, technical directors, etc. Administration - secretarial, clerical and production managers.

Content - producers, directors, journalists, presenters, interviewers, researchers, writers, etc."

Finally, there are references to programming, maintenance and engineering staff. These paragraphs are as follows:-

"Programming

(These staff would be employed even in those stations where there was no production.) Staff involved in purchasing, scheduling, editing and putting to air complete programs and program promotions, e.g. Telecine, transmitters, promotion, publicity, scheduling, program sales, videotape operators, etc.

Maintenance

These staff are employed in maintaining general equipment, vehicles and plant. Engineering

These staff are employed maintaining and developing technical equipment and are not operational."

The Tribunal's Requirements and Subsequent Correspondence

The return and the accompanying notes were sent to each of the applicants under cover of letters from the Tribunal dated 20 October 1987. Each letter was in similar form. The letter began with a series of paragraphs referring to provisions of the Broadcasting Act 1942 ("the Act") and to amendments thereto which had been effected earlier in 1987. The letter said that the amending Acts had been introduced to improve arrangements relating to the assessment and collection of licence fees. There was then an indication of the substance of the amendments and some further paragraphs which were concerned with the way in which licence fees would be assessed. Paragraph 10 of the letter then followed. It read:-

"10. You are now required to furnish:

(a) The financial information sought in the attached form

(ABT-12) which has been approved by the Tribunal;

(b) a statutory declaration by the Manager or Secretary of the licensee company, and a statement by the auditor(s) of the licensee company, both relating to the 'gross earnings' of the station

(service) for the period on the attached Form ABT-9; and

(d) if the figure under Schedule C, Item 8 on Form ABT-12 'Total profit (loss)' before tax - does not correspond to the pretax profit or loss figure on the audited profit and loss account of the licensee company (because of the non-television business activities of the licensee company, or for any other reason), a statement showing a reconciliation between the two figures."

Paragraph 10 of the letter did not contain any sub-para. (c). The reference to form ABT-9 in sub-para. (b) is not of relevance to the present proceedings. The form ABT-12 referred to in para. 10 of the letter is the annual return in question in this case. The notes to the return are also marked ABT-12.

The letter commenced with the heading, "ANNUAL ACCOUNTS". Paragraph 1 of the letter referred, inter alia, to s. 123 of the Act which was said to provide that a licensee shall, in respect of each commercial television station of which it is licensee, furnish to the Tribunal within six months after 30 June in each year, or such other accounting period adopted with the approval of the Tribunal, an audited balance sheet and profit and loss account and a statutory declaration dealing with the licensee's gross earnings within the meaning of the Television Stations Licence Fees Act 1964. Paragraph 10 apparently concluded that part of the letter dealing with annual accounts because it was followed by a new heading, "Provision of Financial Information". Later there was a further heading, "Payment of Licence Fees". So much of the letter as appears under these last two headings is not relevant for present purposes.
On 21 December 1987 the first applicant sent a letter to the Tribunal enclosing what was said to be a completed annual return for the year ended 30 June 1987. Similar letters were sent by each of the other applicants. On 25 March 1988 the Tribunal wrote to another of the applicants, South Australian Telecasters Limited, referring to the Tribunal's letter of 20 October 1987 and saying that the form, ABT-12, "was attached for completion in full". The letter recapitulated what was required and concluded by saying that it had been noted that the licensee had not supplied in full the information requested. The letter continued, "Accordingly you are hereby directed under s. 17 of the Broadcasting Act to supply forthwith any of the abovenamed information which has not as yet been forthcoming."
On 15 April 1988 the Tribunal wrote a further letter to South Australian Telecasters drawing the company's attention to the fact that it had not completed schedule A, the statutory declaration, schedule K, the cost of producing Australian programs, and schedule L, the staff profile, or form ABT-12. The letter concluded, "This letter is to advise you that unless the information specified in the direction reaches the Tribunal's office by close of business 20 April 1988, the Tribunal will consider that you have failed to comply with the direction."
On 19 April 1988 South Australian Telecasters wrote to say that it had been advised that it was beyond the statutory power of the Tribunal to require completion of schedules A, K and L of the return and to direct or require the provision of the information referred to. It was said that the company was in the process of obtaining advice as to the appropriate steps to be taken to resolve the question concerning the validity of the Tribunal's request. On 20 April 1988 South Australian Telecasters was notified that the Tribunal intended to take submissions at its hearings that week on non-compliance by it with the Tribunal's direction dated 25 March 1988 and, if appropriate, consider any such non-compliance in the context of s. 86 and other provisions of the Act relating to the renewal of the licence.

On 29 April 1988 the company wrote to the Tribunal saying that it was considering the advice of senior counsel about the matter. In the meantime it requested the Tribunal, pursuant to s. 13 of the Administrative Decisions (Judicial Review) Act 1977, to furnish it with a statement in writing identifying the powers under the Act pursuant to which the Tribunal had purported to issue the directions relating to completion of schedules A, K and L of the return. It may be observed in passing that s. 13 of the Judicial Review Act does not in terms enable a person to require a statement of the powers pursuant to which a decision has been made. It provides for a request for findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.
In its letter of 5 May 1988 the Tribunal said that it had noted the company's refusal to comply fully with the Tribunal's direction and said that it intended to pursue the matter at an appropriate time. On 6 May 1988 the Tribunal was advised that each of the licensees comprising the Australian Television Network (that is each of the applicants) proposed to seek relief under the Judicial Review Act. The previous day the Tribunal had written to South Australian Telecasters a letter which, so far as it is material, was as follows:-

"The Tribunal notes that you have not complied with its direction under section 17 of the Broadcasting Act 1942 to supply in full the information required in the Annual Return Form ABT 12. It does not consider that your request for a statement of reasons pursuant to section 13 of the Administrative Decisions (Judicial Review) Act 1977 had the effect of staying your obligation to comply with the direction.

Given s. 129 of the Broadcasting Act, this involves consideration of whether you have breached a condition of the licence. Under s. 86(11B)(iii) the answer to that question could have significant implications for your current application for renewal of that licence.

The Tribunal is of the preliminary view that on the evidence before it, you are in breach of a condition of your licence in that, in failing to comply with its direction under s. 17(1) you breached the provisions of s. 17(8), such provision being a condition of the licence by virtue of s. 129. If you wish to make any further submissions on this matter, they should be forwarded to the Tribunal by COB 6th May 1988. The statement of reasons requested by you is attached."

As I have observed, it was not for a statement of reasons that the company had asked.

Appended to the letter was the statement of reasons referred to. Under the heading, "Findings on Material Questions of Fact", it was said that on 20 October 1987 a letter was sent to the company as well as all other commercial television licensees requiring them to furnish certain information to the Tribunal and attaching the form ABT-12 to be filled in for this purpose. The nature of ABT-12 was then stated. It was recorded that the company had returned the form with all schedules completed except schedules A, K and L. After referring to the letter of 20 October 1987, the response of 29 December 1987 returning the partially completed form and some further material, the Tribunal stated its reasons for decision as follows:-

"REASONS FOR DECISION

7. The Applicant was requested by the Tribunal on 20 October 1987 to provide certain information by filling out Schedules A to L of Annual Return Form ABT 12.

8. The Applicant returned the form on 29 December 1987 without providing the information required by Schedules A, K and L.

9. In refusing to give this information the Applicant alleged that some of the information sought by the Tribunal could not properly be required under the provisions of the Act and that it was beyond the power of the Tribunal to require that the information be verified by way of Statutory Declaration.

10. The Tribunal was satisfied that it had the power under the Act both to request the information and to have it verified by way of Statutory Declaration.

11. As the Applicant and other commercial television licensees had not provided the information required, the Tribunal decided to direct the Applicant and other licensees to provide the information forthwith."

On 12 May 1988 the Tribunal wrote a further letter to the company which was as follows:-

"The Tribunal has noted the matters therein and has taken them into account in reaching a conclusion in this matter. The Tribunal has decided that you are in breach of a condition of your licence in that, in failing to comply with its direction under s. 17(1) of the Broadcasting Act 1942, you breached the provisions of s. 17(8) of the Act, such provision being a condition of the licence by virtue of s. 129 of the Act. Clearly, under s. 86(11B)(C)(iii), this decision, taken in the context of your current application for the renewal of your licence, has significant implications and these will be considered in due course. In answer to your query, the powers under the Broadcasting Act 1942 pursuant to which the Tribunal requested the relevant information are contained in sections 16, 17, 123 and 124."

It may be observed that until that letter there had been no mention of ss. 16, 17 or 124 of the Act in any previous correspondence.

The course of the proceedings

The application for review was filed on 23 May 1988 and was fixed for hearing on 19 September 1988. The matter proceeded on that day. For administrative reasons it could not be continued on 20 September, but the hearing was resumed on 21 September. No evidence was read other than the affidavit of a Mr. O'Halloran, which had the relevant correspondence annexed to it. Argument began shortly after the matter commenced on 19 September. It emerged, in the course of that argument, which continued on 21 September, that the Tribunal might wish to contend that some of the expressions used in the return and the notes thereto were understood in the industry to have well known meanings ascribed to them. Discussion ensued on the question whether such evidence ought to be led. On 21 September 1988 counsel for the Tribunal applied for an adjournment to enable this course to be followed. By consent I made directions for affidavits by both parties. These concluded with a provision for the filing of affidavits to be relied upon by the applicants on or before 14 October. The matter was mentioned again on 20 October 1988 when I proposed to fix a date for the resumption of the hearing provided, of course, the evidence was then complete. The earliest date which was suitable to both counsel for a resumption of the hearing was the afternoon of 15 December 1988. The matter resumed on that day and continued on 16 and 19 December 1988 when I reserved my decision.
Over the objection of counsel for the applicants, counsel for the Tribunal read affidavits of Ms J.F. Paramore and Mr D.N. Herd. Ms Paramore is the Acting General Manager of the Tribunal. Her substantive position is Director of the Programs Division of the Tribunal. Mr Herd is a Senior Project Officer, Programs Division in the Tribunal. Ms Paramore described how the form ABT-12 had been devised and the consultation with the industry which had taken place before it was required to be completed. Mr Herd referred to a substantial amount of material concerning Australian content in television programs broadcast in Australia. Part of para. 10 and the whole of para. 11 of Mr. Herd's affidavit were rejected. The balance of the affidavit and the exhibits referred to therein were read subject to the applicants' objections as to relevance. Mr Herd's affidavit was not sworn until 16 December 1988. An earlier affidavit sworn by him was not read. Mr Herd was cross-examined, but I do not find it necessary to refer to his oral evidence.
Prior to the hearing commencing in September, the applicants were directed to file points of claim so that the Tribunal and the Court might be made aware of the particular matters to be relied upon by the applicants in their challenge to the decisions review of which was sought. Points of claim were filed, but they were expressed in the most general language and were quite inadequate to achieve their intended purpose.
The Legislation
It is next appropriate to refer to the provisions of the Broadcasting Act which are in question. So far as it is relevant, subsec. 16(1) of the Act provides as follows:-

"16 (1) The functions of the Tribunal are-

(a) to grant, renew, suspend, revoke and accept the surrender of licences; ........ ........ ........ ........ ........ ..

(d) by instrument in writing, to determine the standards to be observed by licensees in respect of the broadcasting of programs and in respect of programs to be broadcast; ........ ........ ........ ........ ........ ..

(h) to assemble information relating to broadcasting in Australia under section 124; and

(i) to perform such duties and exercise such powers as are imposed or conferred upon it by this Act and the regulations."

The relevant subsections of s. 17 are as follows:-

"17 (1) For the purpose of exercising its powers and functions under this Act, the Tribunal shall have power to make such orders, give such directions and do all such other things as it thinks fit.

(2) Orders made by the Tribunal-

(a) shall be in writing;

(b) shall not be deemed to be Statutory Rules within the meaning of the Rules Publication Act 1903-1939; and

(c) shall have the force of law. ........ ........ ........ ........ ........ .....

(4) A person shall not contravene or fail to comply with any provision of an order made by the Tribunal which is applicable to him.

(5) A direction given by the Tribunal may be given orally or in writing. ........ ........ ........ ........ ........ .....

(8) A copy of a direction given in writing shall be served on the person required to comply with the direction and thereupon that person shall comply with the direction."

Although s. 17A of the Act was not mentioned by the Tribunal in its letter of 12 May 1988, it is necessary to refer to it because it throws some light upon the nature and extent of the powers of the Tribunal and was relied upon by its counsel in his submissions. It should be emphasized that ss. 16 and 17 appear in Division 2 of Part II of the Act and s. 17A in Division 3 thereof. Division 2 is entitled, "Powers and Functions of the Tribunal", and Division 3, "Inquiries by the Tribunal". Section 17A is an interpretation section. Its relevant provisions are to be found in paras. 17A(2)(a), (b), (c) and (d) which provide:-

" (2) A reference in this Division to a substantive power of the Tribunal is a reference to a power of the Tribunal-

(a) to determine program standards;

(b) to grant or renew a licence under sub-section 81(1);

(c) to vary, revoke or impose a condition of a licence under section 85, otherwise than in accordance with sub-section 85(4);

(d) to suspend or revoke a licence under section 88, 88A, 88B, 88C or 88D;"

The purpose of the section is to indicate the meaning of the expression, "a substantive power of the Tribunal", where that expression is used in Division 3. The expression is used throughout the Division. Section 17A is thus of more limited relevance to the ambit of the Tribunal's powers than are ss. 16, 123 and 124 of the Act which are directly in point.
Subsections (1), (3) and (4) of s. 123 are as follows:-

"123 (1) The holder of a licence (other than a re-broadcasting licence or a re-transmission licence) shall-

(a) compile and maintain, in a recognized business or commercial form, financial accounts in respect of the service provided pursuant to the licence;

(b) make those accounts available for inspection by the Tribunal or an authorized officer as required;

(c) furnish to the Tribunal, within the 6 months after 30 June in each year-

(i) an audited balance-sheet and profit and loss account in respect of the service provided pursuant to the licence, in a form approved by the Tribunal, for the year ending on that 30 June; and

(ii) a statutory declaration stating the gross earnings in respect of the licence during that year; and

(d) keep such records in respect of the service provided pursuant to the licence as the Tribunal from time to time directs and supply copies of those records to the Tribunal as required. ........ ........ ........ ........ ........ .....

(3) Where the licensee is a company, the declaration shall be made by the manager or secretary of the company.

(4) A licensee shall, upon request by the Tribunal-

(a) make available for inspection by the Tribunal or an authorized officer such books and documents concerning the broadcasting activities of the licensee as the Tribunal specifies; and

(b) furnish to the Tribunal such particulars with respect to the broadcasting activities of the licensee as the Tribunal specifies and any other information specified by the Tribunal, being information with respect to the activities or affairs of the licensee and relevant to the operation of this Act, the Radio Licence Fees Act 1964 or the Television Licence Fees Act 1964."

Finally, there is s. 124, the relevant subsections of which are subsecs. (1) and (2). They provide:-

"124 (1) The Tribunal shall assemble information relating to broadcasting services in Australia, being information-

(a) supplied to the Tribunal in accordance with section 123;

(b) supplied to the Tribunal in accordance with sub-section (2); or

(c) otherwise acquired by the Tribunal in the performance of its functions.

(2) The Tribunal may, by notice in writing, require a licensee to supply to the Tribunal, within a specified period (not being less than 21 days after the receipt of the notice) such information in his possession or control as is specified, being information relating to a function of the Tribunal, and that person shall comply with the requirement."

As mentioned, the sections to which I have referred, with the exception of s. 17A, are those mentioned in the letter from the Tribunal dated 12 May 1988 which I have earlier set out. None of these sections, I should add, appear in the reasons given by the Tribunal for its decision which, in my opinion, are as vague and elliptical, and thus as unsatisfactory, as the applicants' points of claim. I regret to say that both parties commenced the hearing of this case really unaware of the ground that each would adopt. This was despite a directions hearing designed to overcome uncertainties of this kind, a statement of reasons which, albeit that they were not sought in this case, should have told the persons affected by the decision precisely how it was arrived at, and points of claim which should have told the Tribunal precisely what was to be relied upon. It is no wonder that the case had to be adjourned as it was and that when it came back into the list there were still unsatisfactory features about the evidence, so much so that Mr. Herd had to swear a fresh affidavit on the morning of the second day of the resumed hearing.
The Applicants' Submissions
The submissions relied upon by the applicants may be summarized as follows:-
1. The Tribunal had no power to require any of the licensees to

make a statutory declaration. Thus the requirement to complete schedule A of the return was unlawful.

The Tribunal had no power under s. 123 of the Act to require

any of the licensees to complete schedules K and L.

The Tribunal's specific reliance on s. 123 of the Act in its

notice given on 20 October 1987 to which I have earlier referred precluded it from relying on any power conferred by s. 124 of the Act or by any other provision thereof.

In any event no power was conferred on the Tribunal by any

provision of the Act to require the information sought in schedules K and L.

Section 124 was not complied with because no time limit for

compliance with the notice was specified therein; see subsec. 124(2).

For a variety of reasons the form of both schedules K and L

was so vague and uncertain as to make a requirement that they be completed not a proper exercise of power. The particular matters upon which counsel for the applicants relied will be mentioned when I come to deal with this submission.

The Tribunal's Powers - s. 124

For the moment I propose to put aside the question of the lawfulness of the requirement that the applicants complete statutory declarations verifying the accuracy of the material provided in the returns and to deal with the question of the Tribunal's power to require the information to be furnished.
I am clearly of the opinion that the information required in schedules K and L was information the Tribunal was entitled to require from licensees pursuant to the provisions of subsec. 124(2) when read in conjunction with s. 16. The most relevant provision of s. 16 is para (1)(h) which makes it a function of the Tribunal to assemble information relating to broadcasting in Australia under s. 124. But, I also think that some of the information sought in the two schedules could be relevant to the grant, renewal, suspension or revocation of licences (para. (1)(a)), the determination of standards (para (1)(d)) so far as concerns the information sought in schedule K, and the performance by the Tribunal of the duties and the exercise by it of the powers conferred upon it by the Act (para (1)(i)). I think the provisions of s. 17A which I have quoted reinforce this conclusion. They deal with some of the matters dealt with in the relevant paragraphs of s. 16. They are, however, related more to the inquiries which the Tribunal may conduct and are not so clearly indicative of the nature of its overall powers and functions as are the provisions of s. 16.

It is to be remembered that the Tribunal is the body charged by Parliament with the general supervision and control of commercial broadcasting in Australia. It has an important and responsible role. Its powers ought not to be construed narrowly by reading into them restrictions which the language used by the legislature does not suggest were intended to circumscribe the generality of the Tribunal's powers and functions. The Tribunal should be given, within the bounds of reasonableness, a free hand itself to determine, in relation to information gathering, what kinds of information will, over the years, assist it to discharge its functions. The information it seeks is not necessarily relevant only to the licensees which provide it. The collection of statistics of this kind sought from all licensees in a succession of years enables a body such as the Tribunal to build up a picture of the commercial television industry which will help to keep it well informed and assist it, perhaps, at times, only in indirect and tangential ways, in performing its duties.
Counsel for the applicants made a particular attack on the Tribunal's request to complete schedule L relating to the staffing profiles of the licensees. But, within the general framework of the statutory powers to which I have referred, I see nothing unlawful in a statutory body having the responsibilities which the Tribunal has requiring licensees to furnish information about the make-up of their staff. Knowledge of this kind acquired from a range of licensees, some more successful than others, some in large metropolises, some in provincial cities and some in country areas, may prove invaluable to the Tribunal where, in relation to choosing amongst applicants for a new licence, the Tribunal has to be satisfied of a potential licensee's ability to operate a successful enterprise.
There are, however, two difficulties about the Tribunal's reliance on s. 124 in the circumstances of this case. These have been expressly mentioned in the summary of the submissions of counsel for the applicants. They form the basis of submissions 3 and 5. I propose to put aside for the moment the matter relied upon in submission 3 and to deal now with the matter relied upon in submission 5. It was that the Tribunal's letter of 20 October 1987 failed to specify any period within which the information was to be supplied as required by subsec. 124(2) of the Act. In a sense that is hardly surprising because there is no mention of s. 124 in the letter and it seems unlikely that the Tribunal had it in mind.
The relevant words of subsec. 124(2) are, "The Tribunal may, by notice in writing, require a licensee to supply to the Tribunal, within a specified period (not being less than 21 days after the receipt of the notice) such information ..." It was submitted by counsel for the Tribunal that it was a sufficient compliance with the subsection if the notice gave the licensee at least 21 days to supply the information. That, however, is not what the section says. On the other hand, such a construction would not be of disadvantage to a licensee because it would leave the period open-ended. But, on that basis, one would have to construe the requirement made by the Tribunal as one which required compliance within a reasonable time. To my mind that gets well away from the meaning which the subsection has. In any event, it is not apparent to me that the letter specified any time at all, let alone a time which was at least 21 days. I therefore reject this submission.
Then counsel for the Tribunal submitted that paragraph 1 of the letter did in fact specify a period, namely, "within six months after 30 June in each year, or such other accounting period adopted with the approval of the Tribunal ..." but, as I have earlier said, the Tribunal in paragraph 1 of its letter did no more than to recite the provisions of s. 123 of the Act. Paragraph 1 was explanatory and began the series of paragraphs leading to the requirement which is made in paragraph 10. That paragraph opens with the words, "You are now required to furnish ..." That is the peremptory demand which the letter makes. Of course, one would not read it as one which required instant compliance. One would read it, as the Tribunal in its later correspondence appears itself to have done, as requiring the supply of the information within a reasonable time.
I am thus satisfied that the letter contains no specification of any time so that, whether or not it was essential for the Tribunal to mention s. 124 as a source of power (a matter to which I have yet to come), the letter failed to comply with its terms because no period was specified. Counsel for the Tribunal put no argument about this matter and, in those circumstances, it would not be inappropriate to conclude that the Tribunal was not entitled to rely on s. 124 even if it might otherwise have done so.
Nevertheless, there are other considerations. In its letter of 25 March 1988 the Tribunal referred to the failure of South Australian Telecasters to supply all the information required. Its letter concluded, "Accordingly, you are hereby directed under s. 17 of the Broadcasting Act to supply forthwith any of the abovenamed information which has not as yet been forthcoming". In its letter of 15 April 1988 the Tribunal advised South Australian Telecasters that, unless the information specified in the direction reached the Tribunal's office by close of business on 20 April 1988, the Tribunal would consider that the company had failed to comply with the direction. Section 17 of the Act, which I have earlier quoted, provides that, for the purpose of exercising its powers and functions under the Act, the Tribunal shall have power to make such directions as it thinks fit. I have earlier concluded that the information which the Tribunal was seeking was related to functions of the Tribunal specified in some of the paragraphs of subsec. 16(1) of the Act.
I have reached the conclusion that, notwithstanding the failure of the Tribunal to specify a period in its letter of 20 October 1987, it was empowered by s. 17 of the Act to act as it did in its letters of 25 March and 15 April 1988. The effect of what was done was to bypass the procedure for which subsec. 124(2) provided. The effect of these two letters was to require compliance by 20 April 1988. In passing it seems to me that if the letter of 25 March had itself specified a period longer than 21 days, that letter would have overcome the problems which confront the Tribunal by reason of its failure to state a period in its letter of 20 October 1987. But it did not, so that, in that respect, the letter of 25 March took the matter no further. However, as I have said, the problem is, I think, overcome by the action which the Tribunal took pursuant to s. 17.
In the course of my consideration of the matter I have given some attention to the question whether the words of subsec. 124(2), in relation to the specification of a time, should be construed as being directory rather than mandatory. This is a vexed question and I do not propose to express any conclusion about it. I refer, however, to the decision of the Court of Appeal in New South Wales in Tasker v. Fullwood (1978) 1 NSWLR 20 where there is a convenient statement of the applicable principles after a consideration of the relevant authorities. The matter is discussed by Professor Pearce in his work, Statutory Interpretation, 2nd edition, particularly at paras 237-248.
In the circumstances, I reject the submission made by counsel for the applicants in para 5 of the submissions which I have earlier summarized.
Counsel for the applicants relied on a number of matters connected with the form of the language used in schedules K and L. I shall deal with these points later on. But, subject to those matters, I am of opinion that the Tribunal in asking for the information sought in them was acting well within its powers under s. 124 and s. 16 of the Act.
The Tribunal's Powers - s. 123
To the extent that the Tribunal relies on s. 123 of the Act as a source of power, its position is not so strong. In my opinion the only part of that section upon which the Tribunal can rely is so much of para (4)(b) as provides that a licensee shall, upon request by the Tribunal, "furnish to the Tribunal such particulars with respect to the broadcasting activities of the licensee as the Tribunal specifies and any other information specified by the Tribunal, being information with respect to the activities or affairs of the licensee and relevant to the operation of this Act ..." In the form in which it was at the relevant time the subsection went on to specify the Radio Licence Fees Act 1964 and the Television Licence Fees Act 1964 as well as the Broadcasting Act itself. The legislation was amended last year so that the form of the subsection is somewhat different; see Broadcasting Legislation Amendment Act 1988, subsec. 48(1) and Schedule 3.
The language used in para (4)(b) is certainly wide enough to cover the matters dealt with in schedules K and L. But there is a question in my mind whether the language should be given the full effect it would normally have. My reservation arises because of the general context of s. 123 and its juxtaposition to s. 124 which plainly provides a source of power. The question may be asked why s. 124 was thought necessary if s. 123 covered almost identical ground. Section 123 is fundamentally a section dealing with the provision by licensees of information relating to their finances. One of its principal purposes is, as the Tribunal itself noted in its letter of 20 October 1987, to enable a proper assessment of licence fees to be made. There is therefore a case for reading down the expressions "broadcasting activities of the licensee" and "information with respect to the activities or affairs of the licensee" as activities or affairs which are related in a broad sense to the licensee's financial position. There is material in the notes to schedule L which rather suggests that this may have been a matter that the draftsman considered. Under the heading "Note", the schedule says, "This schedule is intended as a staff profile only and is not linked to any costs in the profit and loss account".
I do not think the matter is free from difficulty but, notwithstanding my reservations, I do not perceive any reason for restricting the meaning of the relevant expressions particularly when one brings into account the nature, purpose and object of the legislation and the clear indication which the legislature has given that the Tribunal was intended to have extensive powers to control and regulate commercial broadcasting. I therefore conclude that the Tribunal's requirement that schedules K and L be completed was authorized by s. 123 as well as s. 124.
The Tribunal's Powers - Further Questions
A principal matter relied upon by counsel for the applicants was a submission (submission 3) that because the Tribunal, in its letter of 20 October 1987 requiring the various licensees to furnish the information sought in the return, specifically indicated that it relied on the provisions of s. 123 of the Act to justify the requirement which it made, it could not rely upon s. 124 as a source of power. In the light of my conclusion that s. 123 does provide a source of power, the submission must fail at the outset. But because the submission was developed so fully during the argument, I think I should say more about it.
As I read the letter of 20 October 1987, it does not appear to me that the Tribunal has necessarily tied its power to require the completion of the returns to s. 123. Section 123 is mentioned only in the opening paragraph of the letter. It is there mentioned in connection with an explanation given for requiring the information which, as I have earlier indicated, is stated to be required in connection with the licensees' annual accounts. When it comes to require the completion of the return, the Tribunal makes the requirement in paragraph 10 of the letter which I have earlier quoted. There is no mention in that paragraph of any section of the Act upon which the Tribunal relies for its power to require the information. Furthermore, when the Tribunal did not receive a return with schedules K and L completed, it wrote to each of the licensees on 25 March 1988 noting that not all the information had been supplied and saying, "Accordingly, you are hereby directed under s. 17 of the Act to supply forthwith any of the abovenamed information which has not as yet been forthcoming." That requirement was broadly based on all powers enabling the Tribunal to seek the required information. The letters of 20 October 1987 and 25 March 1988 ought not therefore be read as containing an indication that the Tribunal relied only on s. 123 of the Act for its power to require the information sought in schedules K and L to be furnished. I reject the submission for that reason also.
My conclusions avoid my needing to deal with a consequential submission made by counsel for the applicants. The submission was that, if a statutory body, such as the Tribunal here, states that it is relying upon a particular provision of its legislation to justify a requirement that something be done, it is not entitled, if that provision proves not to be a relevant head of power, to point to other provisions in the legislation which might have authorized it to do what it did. The authority advanced for this proposition was the decision of this Court in Australian Broadcasting Tribunal v. Saatchi & Saatchi Compton (Vic.) Pty. Limited (1985) 60 ALR 756, particularly the judgment of Bowen CJ at p 764 where his Honour, after referring to Lockwood v. Commonwealth (1954) 90 CLR 177, said that that authority notwithstanding, the question before the Court was whether a statutory body with functions and powers specified in the legislation can purport to act under one head of power in laying down rules of general application, and have the validity of its rules upheld by a court even though the specified power did not authorize its action, on the ground that there was another appropriate power upon which he could have relied. His Honour concluded (p 765) that, where an administrative body which states it is exercising a particular power in laying down a general rule lacks power on the stated ground, but could have laid down the rule validly under another head of power, it would generally be wrong for a court to uphold the rule as if it had been made under the unstated head of power, particularly where the consequences for the citizen of each exercise of power are different.
What his Honour said may be contrasted with what was said by Fullagar J. in Lockwood's case, namely, (p 184):-

"It is, I think, a settled principle that an act purporting to be done under one statutory power may be supported under another statutory power, and, for what it is worth, the letters patent in this case invoke 'all powers thereunto enabling'. In my opinion, the special Act (like a number of similar Acts in the past) was enacted for no other reason than that it was doubted whether the general Act would suffice to support the proposed appointment. This abundans cautela was doubtless wise, but I am of opinion that it was unnecessary."

It may be that the apparent difference between the views of Fullagar J. in Lockwood's case and Bowen C.J. in the Saatchi case is explained by what Bowen C.J. said concerning the laying down of a general rule and the consequences for the citizen of each exercise of power being different. Nevertheless, I do not think that the question is free from difficulty. I must confess surprise at the paucity of authority which there appears to be on the subject. Counsel were unable to refer to any other authority except Federal Commissioner of Taxation v. Cripps and Jones (1987) 76 ALR 619 at p 627 which does not take the matter further. In the light of the statement by Fullagar J. that what he stated in his judgment in Lockwood's case was "a settled principle", one might have expected to find earlier authorities or statements in texts which would have shed light on the matter. Counsel apparently found no such authorities or statements and I, myself, have been unable to find any. It is apparent from the judgment of Bowen C.J. in the Saatchi case that he laboured under the same difficulty.
I have referred to the thrust of the argument on this matter at perhaps too great a length simply because it occupied so much time at the hearing. For the reasons I have earlier given, I am of the opinion that it is unnecessary to decide the matter of principle which is involved or the application of the applicable principle to the circumstances of this case.
Statutory Declaration
I turn to the question whether the Tribunal was empowered to require the information furnished to it to be verified by the statutory declaration provided for in schedule A of the return (submission 1). In what I have so far said I have dealt with the Tribunal's power to require the information sought in schedules K and L. I have not been concerned to ascertain its source of power to require the information in schedules B to J inclusive. That information has apparently been provided. I have said that the Tribunal's source of power to require the information sought in schedules K and L is s. 124, read in conjunction with s. 16, and also subsec. 123(4). It may be, however, that its source of power to require the information in all or some of the other schedules stems more clearly from s. 123 either alone or as an alternative source of power to s. 124. That is not a matter which was the subject of argument. But, as I understand the position, no statutory declaration at all has been furnished. The applicants' submission is that they cannot be required to make statutory declarations verifying any of the material which they furnish pursuant to the requirements of any of the schedules of the return. Subsection 123(1) expressly requires a licensee to furnish a statutory declaration stating the gross earnings in respect of the licence during the year which is specified. It may be that some of the information sought by the Tribunal, for instance, that sought in schedule C, is information that it is entitled to seek pursuant to subsec. 123(1) and that in relation to at least some of it, it is information which must be verified by statutory declaration; see para. (1)(c). I mention this matter to make it clear that my treatment of the question whether the Tribunal is entitled to require information to be verified by statutory declaration is concerned only with cases where the Tribunal's power, whether under s. 123 or s. 124, to require that information is not coupled with any express provision of the Act empowering that course to be taken.
Counsel for the applicants submitted that, notwithstanding the wide powers of a regulatory body such as the Tribunal here, the provisions of the legislation affecting it ought not to be read so widely as to entitle it to require, as a matter of obligation, a statutory declaration unless the legislation itself expressly provided for that requirement as it does in subsec. 123(1). He pointed to a number of provisions of the Act, including subsec. 123(1) and also subsecs. 123(1A) and (1AA), not earlier referred to, which expressly empower the Tribunal to require the furnishing of a statutory declaration. It is unnecessary to go to the detail of these provisions; I simply mention the relevant sections. They are sections 90J(7B), 90M, 90P (since repealed), 92F(7B), 92H and 92JA and 92W (both since repealed). Counsel also referred to s. 21 which empowers the Tribunal in the cases there mentioned to take evidence on oath or affirmation. Counsel said that, if the Tribunal were intended to have a general power to require licensees or others to furnish statutory declarations verifying material provided to it, the Act would have said so. Certainly it would not have been necessary to spell out a variety of circumstances in which the Tribunal was empowered to require a statutory declaration to be provided.

In addition to relying on the general nature and purpose of the Tribunal and its wide powers to regulate the commercial broadcasting industry, counsel for the Tribunal relied upon the provisions of s. 6 of the Statutory Declarations Act 1959. Section 6 is as follows:-

"6. (1) A person may, if he so desires, make a statutory declaration in relation to any matter.

(2) Subject to the next succeeding sub-section, a statutory declaration may be used-

(a) for the purposes of a law of the Commonwealth or of a Territory, unless the contrary intention appears in that law;

(b) in connexion with any matter arising under a law of the Commonwealth or of a Territory, unless the contrary intention appears in that law; or

(c) in connexion with the administration of any Department of State of the Commonwealth.

(3) The last preceding sub-section does not authorize a statutory declaration to be used as evidence in a judicial proceeding but nothing in this section prevents a statutory declaration from being so used."

A person who wilfully makes a false statement in a statutory declaration is guilty of an offence, the punishment for which, if the offence is prosecuted upon indictment, is imprisonment for a term not exceeding four years. If the offence is prosecuted summarily, the punishment is a fine not exceeding $200 or imprisonment for a term not exceeding six months, or both; s.11.
The Statutory Declarations Act 1959 replaced an earlier Act, the Statutory Declarations Act 1911. A provision similar to s. 6 was contained in the 1911 Act; see s.3. In introducing the Bill for the 1959 Act into the Senate, Senator Gorton said (Hansard, 14 May 1959 - Proceedings of the Senate, pp 1436-1437):-

"The purpose of this bill is to repeal and re-enact, with certain amendments, the law relating to statutory declarations. The present Statutory Declarations Act was passed in 1911. Under the Act a person may make a statutory declaration in relation to any matter. He may also make a statutory declaration for any purpose or in connexion with any matter arising under a law of the Commonwealth, or in connexion with the administration of any Commonwealth department. The act has, therefore, been one of great practical utility, especially in facilitating dealings between the public and Commonwealth departments."

The emphasis is mine.

In my consideration of the question of construction which is involved, I have derived some assistance from the decision of the High Court in Grech v. Bird (1936) 56 CLR 228. That case, which was not referred to in argument, was concerned with the Marketing of Primary Products Act 1927 - 1934 (N.S.W.). The Act authorized the constituting of boards to control the marketing of products proclaimed to be commodities under the Act. By s. 34 the Governor was empowered to make regulations for purposes convenient for the administration of the Act, or as might be necessary or expedient to carry out its objects, and, without limiting the generality of the foregoing, for a number of specified matters. In such regulations he might prescribe forms of returns to be made in accordance with the Act and the contents thereof and the persons by whom the same should be made as well as the time and mode of making and furnishing them. Section 34(2) provided that the regulations might fix a penalty of fifty pounds for any breach thereof. Where a penalty was not fixed, every person guilty of an offence against a regulation was liable to a penalty not exceeding fifty pounds.
By a regulation purporting to have been made under the Act, returns as to egg production and disposal were required to be furnished by statutory declaration to officials of the Egg Marketing Board constituted under the Act. Refusal or neglect to furnish the declaration, or the furnishing of one false in any particular, was declared to be an offence against the regulation. It was held by a majority of the High Court that the Act did not confer any power to require the making of a statutory declaration and the regulation was invalid. Each of the four judges who decided the case approached the matter in a somewhat different way. Starke J. dissented and I do not find it necessary to refer to his judgment. Dixon J. (as he then was) referred (p 238) to the Oaths Act 1900 (N.S.W.) which was the statute authorizing the making of declarations. By s. 25 of the Oaths Act, any person who wilfully and corruptly made and subscribed any declaration which by or under the Oaths Act was substituted in lieu of an oath authorized to be subscribed knowing the same to be untrue in any particular was guilty of a misdemeanour.
Later Dixon J. said (pp 239-240):-

"The ambit of the present power is probably wider, but it is subject to a necessary limitation. It does not enable the Governor in Council to make a regulation which varies or departs from a positive provision made by the Act itself. In my opinion the regulation fails for this reason. It attempts to place a poultry farmer who furnishes untruthful information under a liability to a heavier and different punishment than that which the Act expressly authorizes. When sub-sec. 2 of sec. 34 empowers the Governor in Council by his regulations to fix a penalty not exceeding ... 50 (pounds) for any breach thereof, it limits the penal liability which his subordinate law-making power may impose upon the subject. This limit is confirmed by sec. 31(2), which provides the same penalty where none is otherwise fixed. In the very regulation the Governor in Council makes it an offence against the regulations to furnish a statutory declaration false in any particular. This includes, if it does not mean, 'false to the knowledge of the declarant,' which is almost co-extensive with 'wilfully and corruptly untrue.' Thus the regulation itself creates an offence covering all the ground of the misdemeanour provided for by sec. 25 of the Oaths Act. So much of the regulation as does so could not stand if the rest were valid. But, in so providing, the regulation merely illustrates the attempt made by it to improve upon the limited penal liability which the Governor in Council is empowered to impose. His power extends to making regulations requiring returns of information. The regulations may prescribe the form and insist upon authentication of the returns. They may make it an offence to include in such returns any statement which is false or wilfully and corruptly untrue. But the penal consequences may not go beyond the punishment which the Act specifies. In my opinion that limitation cannot be overcome by resort to the device of requiring a statutory declaration under the Oaths Act."

Evatt J. referred to the provisions of the Oaths Act and to the fact that there was no reference in the Marketing of Primary Products Act to an oath to be administered to producers or a declaration to be made by such producers. He said (p 241) that there was no express authority to require producers to use such a declaration conferred upon the regulation-making authority. He continued (pp 241-2):-

"It is urged that s. 341 of the Act (the Marketing of Primary Products Act) contains an extensive grant of power to make regulations, convenient, necessary or expedient for the purpose of giving effect to the Act. But in Broadcasting Co. of Australia Pty. Ltd. v. The Commonwealth

(1935) 52 CLR 52 a somewhat similar power was considered by this court as insufficient to warrant a regulation which operated to deprive a company of remuneration which it had already earned. Regulation-making bodies are necessarily limited by the terms of their charter from Parliament, and it is difficult to support a grant of power which will enable them to exercise in all respects the original authority or capacity of Parliament itself. No doubt the word 'voluntarily' in sec. 21 of the Oaths Act emphasizes that the magistrate who takes and receives the statutory declaration is acting extra-judicially and without using the force of law against the declarant. None the less, it would be a most extraordinary position if, without clear legal authority, a person could be compelled by law to make an extra-judicial declaration, and for a court to say that it was 'voluntarily' made.

In my opinion, no regulation can, without the grant of clear authority by Parliament, compel a citizen to make a 'statutory declaration' under pain of fine or imprisonment. Of course, the position is not necessarily the same where a citizen is (say) an applicant for some grant or concession and is required by regulation to verify by statutory declaration an application he is entitled to make. In such event he is left at liberty to refuse to make the statutory declaration, because no law compels him to proceed with his application."

McTiernan J. said (p 244):-

"The regulation now attacked exacts as security for the truth of the particulars to be furnished the form to which the sanctions of sec. 25 of the Oaths Act 1900 and sec. 339 of the Crimes Act are attached. It is from these sanctions that the statutory declaration derives its efficacy as a confirmatory instrument. The result is that where particulars are demanded under the regulation the penalty provided for failure to comply with the demand can be avoided only by the observance of a form which exposes the producer furnishing the particulars to punishment which it is not in the power of the Executive to impose. For any offence which is created by the regulation the Executive cannot provide a penalty exceeding ... 50 (pounds). It follows that the Executive may not lawfully apply the punishment provided by any Act, where it exceeds that limitation, to any offence against the regulation."

A point of distinction between Grech v. Bird and this case is that there was no provision similar to s. 6 of the Statutory Declarations Act in the Oaths Act which was in question in the Grech case. Nevertheless, one must approach the problem here with the general principles propounded by the majority of the High Court in mind. In my opinion these establish that a body such as the Tribunal here is not empowered to require, as a matter of obligation, the furnishing of a statutory declaration unless there is clear statutory authority for this course. In relation at least to schedules K and L there is no statutory authority in the Act; there is also the fact that the Act contains a number of provisions expressly authorizing the Tribunal to require a statutory declaration in the particular circumstances therein provided for. The remaining question therefore, is whether, notwithstanding those considerations, the necessary statutory authority is provided by the provisions of s. 6 of the Statutory Declarations Act.
In my opinion it is not. Full weight must be given to the provisions of subsec. 6(2) which empower the use of statutory declarations in relation to government activity. But the use of the expression "may be used" and the nature of the coercive power which would result if the position contended for by counsel for the Tribunal prevailed lead me to conclude that the section means no more than that it is appropriate for officials of government to ask people making applications of various kinds or dealing with government in a variety of other ways to make statutory declarations voluntarily. What the section does not do is to compel them to do so. Statutory declarations have a wide use in private affairs. Members of the community dealing with each other, for example, in relation to the transfer of personal property, may find it convenient to make use of a statutory declaration. The purchaser might require the vendor to make a statutory declaration to the effect that he or she has an unencumbered title to the property which is the subject of the transaction. There are countless other ways in which, in private affairs, statutory declarations are used. But, in every case the person asked to make the declaration has an option whether to make it or not. It is true that if the vendor of property refuses to make a declaration of the kind I have mentioned, the transaction may not eventuate. Nevertheless, the vendor has a clear choice whether to make it or not.
I do not think that paras. (b) and (c) of subsec. 6(2) were intended to have a wider ambit. All they mean is that, if a person is dealing with government and a government official wishes to be assured of some aspect, for instance, of the affairs of the individual, he or she may ask the person seeking it to make a statutory declaration about the matter. I think that, if the section were intended to have the much wider effect for which counsel for the Tribunal contends, clearer words would have been used. The sanction for which the Statutory Declarations Act provides is punishment by imprisonment for up to four years. I do not believe a provision such as subsec. 6(2) should be so construed as to empower the executive government or any statutory authority to impose on citizens a requirement that they make a statutory declaration. The considerations mentioned by the members of the High Court in the Grech case suggest that clear Parliamentary authority is required before it will be concluded that Parliament meant this consequence to ensue. I think it follows that subsec. 6(2) of the Statutory Declarations Act must be construed so as to authorize the use of statutory declarations in the administration of government only in circumstances where the person asked for the declaration has a clear choice whether to make it or not.
Conclusions on Tribunal's Powers - Submissions 1 - 5
My conclusions so far then are that the Tribunal was empowered to require the applicants in this case as licensees of television stations to supply information of the kind sought in schedules K and L, always subject to the particular matters upon which counsel for the applicants relied and with which I have yet to deal, but that it was not authorized to require that information to be verified by statutory declaration. Whether it was authorized to require the applicants to verify the information provided in schedules other than schedules K and L is not a matter which was the subject of any argument and, at least for the moment, not a matter therefore upon which I express any conclusion. If there are issues about that matter, there will be a need for further submissions. These would need to deal not only with the question whether the Tribunal was empowered to require verification by statutory declaration of parts of the return other than schedules K and L, but also whether, if that be the case, its request for a statutory declaration can be read down so as to require a declaration only in cases where that requirement was lawful. But whatever the outcome of any such submissions may be, the applicants are entitled to relief in respect of the requirement of the Tribunal that the information required to be furnished in schedules K and L be verified by statutory declaration.
Particular Matters Relating to Form of Returns - General Considerations
It remains to consider the particular matters of criticism made by counsel for the applicants in relation to the form of schedules K and L. Before I come to the detail of the matters relied upon by counsel, I should mention two matters. Firstly, counsel drew my attention to the potentially serious consequences for his clients if any of them failed to comply with a direction given by the Tribunal pursuant to s. 17 of the Act. The Tribunal has purported to exercise those powers and has drawn attention to the consequences of failure to comply with them, particularly in its correspondence with South Australian Telecasters to which I have referred. Counsel submitted that the task of construing the words used in the schedules should be approached against this background. The schedules should not be found to be valid unless their meaning was reasonably clear to licensees. If the expressions used were vague and uncertain, or capable of more than one meaning, then the requests for information should be treated as not having been lawfully made.
In support of his submission counsel relied upon the decisions of the High Court in King Gee Clothing Co. Pty. Limited v. The Commonwealth (1945) 71 CLR 184, Cann's Pty. Limited v. The Commonwealth (1946) 71 CLR 210 and Television Corporation Limited v. The Commonwealth (1963) 109 CLR 59, particularly the judgment of Kitto J. The King Gee and Cann's cases were concerned with the validity of prices orders made pursuant to regulations and involved similar questions. In the King Gee case it was held that provisos to paragraphs of a prices regulation order involved some matters which were not an ascertainable fact or figure, but a matter of estimate, assessment, discretionary allocation or apportionment resulting in the attribution of an amount or figure as a matter of judgment. The provisos were therefore not a proper exercise of the power conferred by the National Security (Prices) Regulations. A similar conclusion was reached in the Cann's case.
In the Television Corporation case the Court was concerned with the question of the validity of certain conditions of licences granted to the holders of commercial broadcasting and television stations. After referring to the relevant legislation, Kitto J. said (pp 70-71):-

"In this context it seems to me a necessary conclusion that what the Act means by a 'condition' is a specification of acts to be done or abstained from by the licensee company - a specification telling the company what it is to do or refrain from doing, and thus on the one hand enabling it in regulating its conduct to know whether it is imperilling the licence or not, and on the other hand making clear to the Minister for the time being what test he is to apply in order that any judgment he may form as to compliance or non-compliance may not be vitiated by error of law. A specification cannot, I think, fulfil this dual function if it is so vaguely expressed that either its meaning or its application is a matter of real uncertainty; and for that reason it seems to me that on the proper construction of the Act the Minister's power to impose conditions is to be understood as limited to the imposition of conditions that are reasonably certain - that is to say (as has been said in a long line of cases with respect to conditions of forfeiture created by the dealings of private persons with other forms of property) conditions such that from the moment of their creation the Court can say with reasonable certainty in what events forfeiture will be incurred: cf. In re Sandbrook; Noel v. Sandbrook (1912) 2 Ch 471, at p 477. Such certainty includes both certainty of expression and certainty in operation: In re Exmouth; Exmouth v. Praed

(1883) 23 Ch D 158, at p 164; Sifton v. Sifton (1938) AC 656, at pp 670, 671; Clayton v. Ramsden (1943) AC 320, at pp 326, 329, 332.

What is the alternative to the view I have expressed? It is that any stipulation at all concerning the conduct of the licensee company is within the Minister's power to impose, even though it fail to give the company any sure guidance as to what is required of it. To take an example, suppose the Minister were to impose a condition that the licensee should conduct its business in all respects with good taste. Surely a construction of the Act that would make that condition within power would be so unreasonable that it ought not to be adopted if any more sensible construction is fairly open."

Counsel for the applicants relied strongly on the analogy drawn by Kitto J. with the forfeiture cases. The position here was claimed to be similar. The Tribunal expressly referred to s. 17 of the Act and it spelt out to the applicants what the consequences of failure to comply with its direction might be. These were the possible suspension of their licences or a refusal to grant renewal of them.

Kitto J. went on to explain the basis of his view that the Court would interfere if the conditions of the licence were vague and uncertain. He said:-

"Judged by this test, the so-called conditions set out in the Minister's notices to the plaintiffs are in my opinion unsupportable as conditions which the Minister has power to impose. The point is not that the proposed conditions offend against a general principle that uncertainty in executive instruments spells legal invalidity, for there is no such general principle: see King Gee Clothing Co. Pty. Ltd. v. The Commonwealth; Cann's Pty. Ltd. v. the Commonwealth. The point is that a requirement of certainty in the sense I have described is inherent in the provisions by which the Minister's power is created: cf. per Diplock LJ., Mixnam's Properties Ltd. v. Chertsey Urban District Council (1963) 3 WLR 38, at p 53."

Here the questions at issue do not concern the validity of regulations or orders made pursuant to regulations, nor do they concern conditions imposed on the grant of a licence. But, contrary to submissions relied upon by counsel for the Tribunal, they involve more than compliance with a simple request for information. As mentioned, the Tribunal has given a direction pursuant to s. 17 of the Act requiring compliance. The consequence of failure to comply with that direction may be serious as I have pointed out. This is despite the fact that what was given by the Tribunal was a direction. It did not purport to make an order. If it had, the position of the applicants may have been stronger because orders made by the Tribunal have the force of law; para. 17(2)(c). Nevertheless, the consequences are serious enough. Like Kitto J. in the case which he had, I think that the legislation here authorizing the making of directions under the Act ought to be construed so as not to empower the making of any such direction unless it is capable of being complied with with reasonable certainty. Otherwise a licensee providing the information may put its licence in jeopardy or adversely affect its chances of having its licence renewed. I do not believe the legislature intended that to be the consequence of what it provided for.
Notwithstanding those considerations, it does remain necessary to bear in mind the exercise which is involved. The Tribunal's actions do not have the force of law in the way that an order would, they do not impose conditions on the applicants' licences and they are not regulations. They are requirements that information be provided and no more. It would be wrong to give to the terms of such a request any strict or technical construction. In other words, the Tribunal should be allowed a sensible degree of flexibility in formulating the terms of its requirements. Only where the language used by it is plainly uncertain so that the licensee is placed in a real quandary about what is required, should the return, or the relevant parts of the return, be found to be invalid.
The second general matter upon which counsel relied was a submission that the terms of the schedules and the accompanying notes were themselves comprehensive and did not require the licensees completing the return to have regard to any material outside the schedules and the notes themselves. I think this is largely true, but if terms used in the schedules have a well-recognized meaning in the industry, then I see no reason why that meaning should not be accorded the terms in the schedules and the notes.
Schedule K - Specific Matters
I now come to the specific matters relied upon.
(a) In counsel's submission schedule K was vitiated by the

words, "whether broadcast or not", in the opening paragraph of the schedule and the words, "intended for telecast", which later appear under the heading, "Outside Broadcasts". I have earlier quoted the two opening paragraphs which lead in to the body of the notes to schedule K and referred to the paragraph in which the words "intended for telecast" are to be found. Counsel submitted that it was not open to the Tribunal to seek information about the costs of expenditure incurred in producing Australian programs unless they were broadcast nor information about such costs in relation to programs which it was intended to telecast at some time in the future. Counsel for the Tribunal said that this was to enable the Tribunal to have information about programs ultimately intended to be broadcast but not broadcast in the year of the return or, perhaps, programs which had been produced but which had not been proceeded with. I think the paragraph needs to be read in the light of the overall context of what is being sought in the return. It is information about broadcasting. The meaning contended for by counsel for the Tribunal seems to me to be a sensible interpretation of what the schedule requires. Its requirement is thus well within power and I reject the submission made by counsel for the applicants about this matter. In doing so I have taken into account the decision of Devlin J. (as he then was) in Potato Marketing Board v. Merricks (1958) 2 QB 316 at pp 332-3 relied upon by counsel for the applicants. Although that case has some similarity to the present, it is a case upon the legislation there in question and its own facts. I do not think that it bears on the determination of the question here involved.

(b) Counsel for the applicants submitted that, although the

second of the opening paragraphs of the notes to schedule K referred to "costing principles specified in Annexure 1", there was no Annexure 1 with the consequence that a licensee filling out schedule K would not be able to do so because it would not know what costing principles were to be applied. It is correct to say that schedule K itself has no Annexure 1. However, as I have earlier mentioned, counsel for the Tribunal drew my attention to Annexure 1 to schedule C which is headed, "Principles and practice of program costing". Schedule C is entitled, "Profit & Loss Account". The notes to schedule C, but not schedule C itself, make some reference to Annexure 1 which, apart from its heading, is blank. These references are to be found in the following paragraphs of the notes.

(i) Paragraph 1 is headed, "Operation Revenue". Sub-paragraph 1.1.3 is headed, "Contras". It says that the money value of any goods, services or benefits received by the licensee as consideration of the granting of air time are to be shown. It adds that for the purpose of this section of the return, the money value will be equal to the income that would have been derived if the air time had been charged as per the rate card. The paragraph continues, "If rate card valuation is not used, the valuation method is to be shown in Annexure 1 (Profit & Loss Account)..."

(ii) Paragraph 2 of the notes to schedule C is headed, "Operating Expenses". Paragraph 2.1 is headed, "Cost of Australian programs broadcast". Amongst other things it says, "Information on amortisation procedures should be set out in explicit notes in annexure 3 to schedule G, while comments on program costing procedures should be included in the appendix (sic) to this Schedule ..." Later the paragraph says that the detailed definitions of program categories are set out in the notes to schedule K and that the categories used in the profit and loss account and schedule of program inventory movements are the major headings. The paragraph says that these prime costs should be divided by program and there follows the list of categories to be found in schedule K. The paragraph finishes with an indication of how the total prime costs of Australian programs broadcast is to be derived. Schedule G is entitled, "Program Inventory Movements". The second paragraph of the notes to schedule G says that the value of amortisation must be disclosed in schedule G, items 1.1 (Australian) and 1.2 (overseas), "while the method should be described in Annexure 3." The heading to Annexure 3 is, "Description of Program Amortisation Principles & Practice". As might be expected the annexure is blank. I think the reference to Annexure 1 in schedule K should have been more clearly expressed, if not in the schedule itself, then in the notes. But the return should be read as a whole and, although I have some reservation about the matter, I think the better view is, as counsel for the Tribunal contended, that the reference to Annexure 1 in the second paragraph of schedule K is intended to be a reference to Annexure 1 to schedule C. What is being referred to is so much of the notes to schedule C to which I have referred, namely, "while comments on program costing procedures should be included in the appendix to this Schedule."

I think that this must be so because the annexures to the return are numbered consecutively. There is no duplication of numbers. Thus Annexures 1 and 2 follow schedule C in which they are referred to, whilst Annexure 3 appears at the end of schedule G. There is no other annexure to that schedule. Counsel for the applicants relied on the fact that the document appended to schedule C was described in the notes as an appendix, but was in fact an annexure. This does not vitiate the document. Obviously the annexure which appears at the end of schedule C has been misdescribed in para. 2 of the notes to schedule C as an appendix. Once one concludes that the Annexure 1 referred to in schedule K is the same document as Annexure 1 in schedule C, it becomes clear, particularly from para. 2.1 of the notes to schedule C, that it is for the licensee to complete it. Counsel for the applicants drew my attention to later paragraphs of the notes to schedule C (paras. 2.5.5, 2.6.3 and 2.7.4) which require an explanation of the information furnished in relation to them to be appended in note form at the end of schedule C. I do not think that those paragraphs have any relevance to the present problem.

The submissions made by counsel about Annexure 1 are rejected.

(c) The next submission is based upon an earlier quoted

paragraph of the notes to schedule K which said that on the following pages, the categories under which costs are required are defined and that a general guide to determining the category under which a program is to appear are the "content points" that are allocated under each heading. No content points are specified as having been allocated in schedule K or elsewhere in the notes thereto. That is enough, in the submission of counsel for the applicants, to render schedule K uncertain and thus a requirement that it be completed unlawful. It seems clear to me that what was being referred to was the content points which are provided for in Television Program Standard 14 ("TPS 14"). The Standard is headed, "Australian content of television programmes". The relevant paragraphs of the Standard are paras. (a) and

(d). These are as follows:- "A licensee must:

(a) Transmit Australian programmes so that, by applying the schedule of points per hour per programme in TPS 14(d), a total number of points not less than the number of hours of programme transmission, is attained over the full statistical year of 52 weeks. For the purposes of this requirement, the period between 12 midnight and 6 am the following day will be disregarded. ........ ........ ........ ........ ...

(d) The number of points to be allocated to a programme shall be determined by firstly deciding the programme category applicable to the programme by reference to the definitions contained in this standard; secondly, referring to that programme category in the table, by reading the applicable number of points depending on whether the programme is transmitted either in peak time or off-peak time, and is the first release or first repeat of the programme. In the case of programmes in the categories of Drama part-indigenous, light entertainment and Information programmes where a scale of points applies to the programme category, points will be allocated to a program (sic) in accordance with the criteria contained in the relevant program category definition." Following these paragraphs is a schedule of points per hour for Australian programs. The schedule is divided into points awarded for programs shown at "Peak time" and at "Off-peak time". There is a further division into first release and first repeat. There then are listed categories of program. In some of these cases, as para.

(d) of the Standard says, a range of points is indicated. In the category of "Drama part-indigenous (One-Shot Series, Serials and Post-1966 Cinema Films)", points which may be earned vary between 3 and 19 per hour with the possible addition of further points which may be earned in certain circumstances to which it is unnecessary to refer. That is the range if the program is shown as a first release in peak time. If it is shown as a first repeat, the range is 1 to 5. If shown in off-peak time, the first release may earn between 2 and 9 points and the first repeat between 0.5 and 2 points. In the category of "Light entertainment (including variety, tonight shows, quiz and panel shows)", the range for first release peak time is 0.5 to 10, for first repeat shown in peak time from 0.5 to 3, for first release shown in off-peak time from 0.5 to 5 and for first repeat shown in off-peak time 0.5 or 1. There are also ranges specified in relation to information programs.

Counsel for the applicants drew attention to the words at the end of para. (d) of the Standard which say that, in the case of programs in the categories of drama part-indigenous, light entertainment and information programs, where a scale of points applies to the program category, points will be allocated to a program in accordance with the criteria contained in the relevant program category definition. I was informed by counsel for the applicants without objection from counsel for the Tribunal that these allocations are not made known to licensees at the time they are made, but at later points of time, perhaps at the time a licence comes up for renewal.

Counsel for the applicants, when counsel for the Tribunal relied upon the points table in the program standard, contended that it itself was so uncertain as not to be a valid exercise of power. That is not a question which I find it necessary to come to a conclusion about in this application. What the Tribunal has done is to refer to it for the purposes of the return it requires completed. In that sense the Standard is incorporated by reference into the documents in question here. The validity of the Standard is therefore not in question; the lawfulness of its use by the Tribunal in the documents here does not depend on whether the Standard itself is a valid exercise of power.

The question then is whether the sentence containing the reference to content points which I have earlier quoted vitiates what follows because of the uncertainty which it creates. Some of the categories do not provide for a range of points. This is so in relation to all indigenous drama. There are three categories - "Drama one-shot (includes mini-series, anthology series)", "Drama series and post-1966 cinema films" and "Drama - Serials - Indigenous". It follows that counsel's criticism does not apply to indigenous drama because in every case there is no range of points. There is only a range if the drama is part-indigenous. Nevertheless, there is no indication in the notes to schedule K that only wholly indigenous drama is being referred to. The relevant part of the notes has the heading, "Australian program categories". The purpose of the schedule is to tell the Tribunal the cost of production of Australian programs. I see no reason to omit from the information which is supplied information about the cost incurred in producing a drama which is partly indigenous.

At first sight, it is not easy to perceive how the number of content points allocated by the Tribunal in relation to a particular program can have any bearing on the category or subcategory into which the program should be placed. The category of "Drama part-indigenous" is divided into one-shot series, serials and post-1966 cinema films. The meaning of some of these expressions is affected by the way in which indigenous drama is described. There are three separate categories for indigenous drama, namely, drama one-shot, which includes mini-series and anthology series, drama series and post-1966 cinema films, and drama serials. Whether one construes the words used in relation to drama which is part-indigenous alone or construes them, as I think one should, with the aid of the expressions used in relation to indigenous drama, problems arise because the subcategories are by no means the same as those provided for in schedule K. For instance, the schedule contains no reference to cinema films (post-1966 or otherwise). All cinema films appear to be excluded from schedule K. Mini-series and serials are included in both, but there are difficulties, for example, about anthology series (referred to in the Standard but not in the schedule) and about telemovies (which are not mentioned as such in the Standard and which exclude productions which have had previous theatrical or cinema release, post-1966 or otherwise). All this begins to indicate that the reference to content points in schedule K was not very wise. Further problems emerge when one considers other program categories which provide for a range of points, namely, light entertainment and information programs, and then tries to understand how the content points prescribed for them can provide any assistance in completing schedule K. The range of points cannot shed light on which of the various subcategories properly describe a program. One would not expect it to. Undoubtedly, the Tribunal must take into account a variety of matters before determining the particular points to be awarded. It seems unlikely that the particular category or subcategory into which the program falls will be to the forefront of these.

In categories for which no range is provided, it is impossible to see how "content points" can provide any guide to the proper categorization of any program. Twenty points are allocated for indigenous "drama one-shot" whether it consists of a mini-series, an anthology series, or some other type of drama which is properly described as "one-shot". For other categories of indigenous drama, five points are allocated. It follows that, where there is no range of points, content points tell one nothing about the appropriate category into which to place a particular program.

These considerations have driven me to conclude that it is impossible to perceive how content points can assist at all in the proper categorization of programs in schedule K. The reference to them in the notes to schedule K was thus not just unfortunate; it was confusing to say the least. It was in these circumstances that counsel for the Tribunal submitted that the sentence of the paragraph which contains the reference to content points was irrelevant and should be ignored. He said that its presence did not invalidate the schedule which was otherwise clear, or at least clear enough, as I think it is.

I confess to having found the problem which the reference to content points in the schedule poses a difficult one. I do not think that it can be lightly put aside. But the sentence does open with the words, "A principal guide to determining the category ..." Thus the purpose of the sentence is to give general guidance rather than to specify precisely what is required. The sentence, far from giving guidance, has the opposite effect by replacing it with confusion. The question is whether a licensee, acting reasonably in the context of the exercise in which it is required to participate, should be expected to perceive this and disregard the sentence, or whether it is open to the licensee to take the view that the sentence has brought such confusion and uncertainty into the exercise as to make the return impossible to complete because the licensee cannot know into which categories to place its programs.

The senior executives of television stations are not ordinary members of the public who are unlikely to have close knowledge of the television industry. They are familiar with television programming, program categories and the Standard. With some hesitation, I think the better view is that the reasonable licensee, acting through responsible executives, would ignore the proffered guidance and complete the return without concerning itself further about content points. I therefore reject the submission based on that matter.

(d) The final matter of criticism made by counsel for the

applicants in relation to schedule K was that there was an overlap in relation to some of the categories. It was submitted, for instance, that category 1 was drama but the sub-category, "arts", in sub-para 4.2, provided for classical drama. It was said that the licensee would be left in a state of uncertainty whether to categorize some dramas under category 1 or under category 4. Other examples were given. I have decided that this submission should be rejected. As I have said, the return is required to be completed by persons familiar with the industry. Minds may differ on the question whether a particular program properly fits the phrase "classical drama", but I think it unlikely that this will give rise to many problems. Furthermore, if a program is on the borderline, no complaint could possibly be made by the Tribunal if, in good faith, it were classified within a category with which it disagreed.

Schedule L - Specific Matters

(e) That completes my treatment of the detailed matters of

criticism raised in relation to schedule K. I turn to the matters relied upon in relation to schedule L. The first matter of criticism was the distinction drawn in the schedule in relation to full time staff, part time staff and casual staff. These are ordinary expressions used in relation to employment of people in a variety of undertakings. I cannot think that the need to distinguish amongst staff in this way could possibly occasion a reasonable licensee any difficulty. I agree that the definitions of full time, part time and casual staff which appear in the notes to schedule L are not particularly illuminating, but that does not invalidate the Tribunal's requirement that the schedule be completed. Counsel for the Tribunal tendered the Television Industry Award 1987 which contains definitions of part time and casual employees. Counsel for the applicants submitted that it was irrelevant. I do not take this view. I think the award was a relevant matter for licensees completing the return to have regard to in appropriate circumstances and that the definitions also demonstrate that the expressions "part time staff" and "casual staff" do have a well-recognized meaning in the industry. The first of the submissions made in relation to schedule L is rejected.

(f) The next submission was made in relation to the note which

follows definitions of full time, part time and casual staff in the notes to schedule L. I have earlier quoted it. It said that if it was felt that the numbers of staff quoted were not a true representation of the licensee's staff levels, the schedule should be noted and full details attached. In my opinion the meaning of the note is clear. It relates to the terms of the definitions of each of the categories of staff which require the number of staff employed in each of the categories as at 30 June in a given year to be stated. Quite clearly these figures may, in some exceptional cases, not give a true indication of staff levels during the year, perhaps because of some substantial increase or falling off of numbers towards the end of the year of the return. Again, I cannot imagine that the presence of the note would occasion any reasonable licensee major difficulty.

(g) It was submitted that so much of the notes as appeared

under the heading "Production" (I have earlier quoted this paragraph) related at least in part to a non-broadcasting activity because of the reference to production of non-program material. Counsel submitted that the Tribunal was not entitled to any information which had no relation to any broadcasting activity. There may be a degree of tenuousness about the relationship of non-program material to broadcasting (using that expression in the wide sense which I have earlier indicated), but I am not prepared to invalidate schedule L or any part of it on this ground.

(h) Schedule L requires staff to be broken up into numbers of

male and female staff. This was another matter which was said to have no possible connection with broadcasting. I reject this submission. I think, as I have earlier indicated, that the Tribunal is entitled to gather information which will guide it in a general way in relation to its overall task of administering the Act. It is entitled to inform itself of the profile of the staff of a variety of television licensees. I agree that it is not in terms concerned with broad social questions such as the employment of women in the work force, the seniority they achieve in it, the provision of equal opportunity, discrimination against women (or, for that matter, men) or affirmative action. Nevertheless, in this day and age I think a regulatory body such as the Tribunal here is well entitled to have information which will give it a complete picture of the staff profile of companies to which it grants licences. If this led it eventually to seek to give directions or exert pressure to compel some change, there may be a question of its powers. I express no view on this matter. All I say is that I am of opinion that it is entitled to the information which it seeks.

(i) It was then submitted that the frequent use of "etc" in

the notes to schedule L made it uncertain. The use of this abbreviation is to be perceived in paragraphs from the notes which I have earlier quoted. For instance, reference is made to categories of activity or categories of staff. In each case these are followed by "etc". Thus there are the expressions "... set construction, film processing, technical directors, etc." and "... presenters, interviewers, researchers, writers, etc." There are other examples but I do not need to refer to any more. I regard the submission as de minimis and I reject it.

(j) Finally, there was a submission based on the use of the

word "traffic" in a paragraph of the notes headed, "Sales". The paragraph says "Staff who are totally involved with the selling of time and handling of commercials, for example, sales representatives, secretarial, clerical, traffic, etc.". I agree that there may be some uncertainty about the meaning of "traffic", but I think that, in the context in which it is used it must refer to persons employed in transportation or delivery work. Certainly the presence of the word in that paragraph, which after all, is contained in notes provided as a guide to the filling in of the return, cannot vitiate the whole exercise.

It follows that I reject the submissions made by counsel for the applicants based open the detailed provisions of the two schedules and the notes thereto.
Conclusions
That completes my consideration of the various submissions which were made. In summary, I have decided to uphold the first submission which related to the requirement for a statutory declaration. Each of the other submissions is rejected. For reasons earlier given, it is inappropriate now to make any declarations or orders. I propose to stand the matter over for a short time to enable the parties and their legal representatives to consider what I have said. When the matter is again in the list, counsel should have available short minutes of declarations and orders appropriate to give effect to my decision. As necessary, I shall hear any further submissions that there may be in consequence of my decision concerning the unlawfulness of the requirement for the furnishing of a statutory declaration. I shall also hear argument on costs.
Supplementary Reasons for Judgment
I delivered reasons for judgment in this matter on 24 April last. I did not then make any declarations or orders but stood the matter over for short minutes. Counsel brought in short minutes of declarations and orders to give effect to my decision on 22 May last. During the discussion that ensued about these I raised with counsel the question whether, although I had found that the Tribunal was empowered to require the applicants to provide the information sought in schedules K and L to the form ABT12, which was in question, the requirement which it had made up to that time was valid as to those schedules because the requirement might be read as one requiring the furnishing of a statutory declaration and thus as requiring the information only if it were verified.
I asked counsel to give me some assistance on this question and to that end each lodged written submissions which I considered before the matter came back into the list today. In the result there was no issue about the matter I had raised. Counsel for the applicants has conceded that the Tribunal, although it was not empowered to require verification by statutory declaration of any of the information in the form ABT12, was nevertheless obliged to provide unverified the information required in schedules K and L, which were the subject of dispute in the proceedings. In those circumstances there is nothing for me to decide about the matter, and it remains to make appropriate declarations and orders. In the event the parties now agree about the form of the two declarations which need to be made; they are in dispute as to the question of costs.
I have not found resolution of the appropriate order for costs without difficulty. The matter, as I indicated in the reasons for judgment earlier published, proceeded over a period of some five days, although it is true to say that each of those days was not fully occupied in the hearing of this matter. There have also been, of course, the consequential hearings as a result of the need to consider the point just mentioned which, as matters have turned out, has been resolved unfavourably to the applicants. I think the best way of approaching the matter is to make a fractional order rather than endeavouring to reach a conclusion as to precisely what each party should pay in respect of costs. In a sense the applicants have had substantial success because they have succeeded on the question of the statutory declaration, but the time occupied in relation to that issue was much less than a day and substantial time was occupied in relation to the arguments that ensued in relation to schedules K and L.
In the circumstances I do not think it would be right to order, as counsel for the applicants has asked me to do, that the Tribunal pay the whole of the applicants' costs of the proceedings; nor do I think it would be right to go to the other extreme. In the circumstances and after due reflection I think justice will be done if I order the applicants to pay one third of the Tribunal's costs of the application. That is the order which I propose to make.
I have been informed that the applicants intend to appeal against my decision. A stay of proceedings will not assist them in the circumstances, but I am prepared to order that the respondent be restrained, pending the hearing of the appeal, from requiring completion of schedules K and L. In return for that restraint I shall require an undertaking from the applicants for the due prosecution of the appeal and I propose to make an order abridging the time within which an appeal may be lodged to 14 June. Liberty to apply will be reserved.

[1989] FCA 276

31 MAY 1989