Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal

[1984] FCA 143

Re: AMALGAMATED TELEVISION SERVICES PTY. LIMITED
And: AUSTRALIAN BROADCASTING TRIBUNAL
NSW G418 of 1983
Administrative Law - Statutes
54 ALR 57 / 1 FCR 409

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.(1)

CATCHWORDS

Administrative Law - judicial review - decision of respondent requiring applicant to supply certain information - whether respondent authorised to require the provision of said information - whether request bad at law - relationship between Broadcasting and Television Act 1942 and Television Stations Licence Fees Act 1964.

Broadcasting and Television Act 1942, ss. 16, 106, 129, 132

Television Stations Licence Fees Act 1964, ss. 3, 4, 5, 6, 7

Administrative Decisions (Judicial Review) Act 1977, paras. 5(1)(c), (d), (e) and (f), paras. 5(2)(a) and (c).

Administrative Law - Judicial Review - Statutory requirement for information - Whether bad - Whether uncertain - Whether beyond statutory power - Broadcasting and Television Act 1942 (Cth), ss 16, 106, 129, 132 - Television Stations Licence Fees Act 1964 (Cth), ss 3, 4, 5, 6, 7 - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1)(c), (d), (e), (f), (2)(a), (c).

Statutes - Construction - "is incorporated and shall be read as one with this Act" - Requirement for information - Whether bad - Whether uncertain - Whether beyond statutory power - Broadcasting and Television Act 1942 (Cth), ss 16, 106, 129, 132 - Television Stations Licence Fees Act 1964 (Cth), ss 3, 4, 5, 6, 7 - Administrative Decisions (Judicial Review) Act 1977, ss 5(1)(c), (d), (e), (f), (2)(a), (c).

HEADNOTE

A requirement to furnish earnings "of an entity related" to the corporate addressee of the requirement is bad for uncertainty.

It is not permissible to construe, in a requirement for information pursuant to statutory authority, the expression "earnings which ... would have been required to be included" in gross earnings under the terms of the Television Stations Licence Fees Act 1964 (Cth) as meaning earnings that would have been liable to have been required, if the Minister so decided, to be included.

The presence in the Television Station Licence Fees Act 1964 of s. 3 to the effect that the Broadcasting and Television Act 1942 "is incorporated and shall be read as one with this Act", does not enable the provisions of the Broadcasting and Television Act 1942 to be given an extended application so as to authorise the Tribunal to require information relevant to the power of the Minister to give directions under the Television Stations Licence Fees Act 1964.

Canada Southern Railway Co. v. The International Bridge Co. (1883) 8 A.C. 723; Osborne v. The Commonwealth (1911) 12 C.L.R. 321; Perpetual Trustee Co. Ltd v. Wittscheibe (1940) 40 S.R. (N.S.W.) 501; Cadbury-Fry-Pascall Pty Ltd v. Federal Commissioner of Taxation (1944) 70 C.L.R. 362; Tasman Timber Ltd v. Minister for Industry and Commerce (1983) 46 A.L.R. 149; Georgoussis v. The Medical Board of Victoria (1957) V.R. 671, referred to.

HEARING

Sydney, 1984, May 4; June 1. #DATE 1:6:1984

APPLICATION.

Application for orders of review pursuant to the Administrative Decisions (Judicial Review) Act 1977.

T.E.F. Hughes and W.M.C. Gummow, for the applicant.

M.J. Slattery, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: Branicki, Milder & Co.

Solicitors for the respondent: Turner Freeman.

T.J.G.

ORDER

1. The decision of the respondent requiring the applicant to supply to it the information described in paras. 4(b), (c), (e) and (f) of the respondent's letter to the applicant dated 15 September 1983 be quashed.

2. The respondent pay the applicant's costs of the proceeding.

Orders accordingly.

JUDGE1

Amalgamated Television Services Pty. Limited (the applicant) seeks an order of review under the Administrative Decisions (Judicial Review) Act 1977 (the "Judicial Review Act") of a decision of the Australian Broadcasting Tribunal (the respondent) that the applicant supply to the respondent the information described in paras. 4(b), (c), (e) and (f) of a letter from the respondent to the applicant dated 15 September 1983. The letter, so far as presently relevant, reads as follows:

"4. Accordingly, pursuant to s. 106(4)(b) of the Act, you are requested to furnish: ...

(b) a statement of the earnings of any entity related to the licensee with respect to matter televised from the station which, had the earnings been received directly by the licensee, would have been required to be included as gross earnings within the meaning of the TVLF Act;

(c) a statement of the earnings by the licensee, or any in entity related to the licensee (as referred to

(b) above), relating to the production and recording on video-tape, or the recording on video-tape, of matter consisting wholly of an advertisement televised by the licensee and which earnings have not been included in Form ABT 9 as gross earnings of the licensee; ...

(e) the amount of any bad or doubtful debts that have been excluded from the gross earnings declared in Form ABT 9; ...

(f) the amount of any bad debts subsequently recovered after being previously excluded in returns lodged by the licensee; ..."

1. The applicant contended that the respondent was not authorised to require the provision of this information. The applicant relied on paras. 5(1)(c), (d), (e) and (f) of the Judicial Review Act and, so far as para. (e) is concerned, on the provisions of paras. 5(2)(a) and (c).

2. The argument centered on two Acts, the Broadcasting and Television Act 1942 (the "Broadcasting and Television Act") and the Television Stations Licence Fees Act 1964 (the "Licence Fees Act") and the relation of each to the other. It is necessary to refer to the material provisions of those Acts.

3. A licensee of a commercial television station is required to furnish to the Tribunal at certain regular intervals a statutory declaration stating the gross earnings of the station during the relevant year: sub-para. 106(1)(c)(ii).

4. The Tribunal is empowered by the Broadcasting and Television Act (para. 106(4)(b)) to request a licensee to furnish to the Tribunal:
   
   

"such particulars with respect to the broadcasting or television 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".

1. The Tribunal is required by sub-s. 106A(1) to assemble information relating to broadcasting and television in Australia, being information supplied to the Tribunal in accordance with s. 106 or supplied to the Tribunal in accordance with sub-s. 106A(2) (that is, information in the possession or control of the licensee relating to a function of the Tribunal) or otherwise acquired by the Tribunal in the performance of its functions. Section 16 of the Broadcasting and Television Act enumerates the functions of the Tribunal and they include the function of assembling information relating to broadcasting and television in Australia under s. 106A: para. 16(1)(h) of the Broadcasting and Television Act.

2. Sections 4 and 5 of the Licence Fees Act provide:
   
   

"4.(1) In this Act -

'gross earnings', in relation to a commercial television station in respect of a period, means the gross earnings of the licensee of the station during that period in respect of the televising from the station of advertisements or other matter, including the gross earnings of the licensee during that period in respect of the provision by him of, or otherwise in respect of, matter televised from the station, not being earnings from the production and recording on photographic film, or the recording on photographic film of matter consisting wholly of an advertisement;

'licence' means a licence in respect of a commercial television station;

'photographic film' includes a sound recording for use in conjunction with any such film, but does not include magnetic tape except magnetic tape which consists of any such sound recording.

(2) Where, in connexion with any transaction, any consideration is paid or given otherwise than in cash, the money value of that consideration shall, for the purposes of this Act, be deemed to have been paid or given.

5. There is payable to the Commonwealth by the licensee of a commercial television station, in respect of his licence, fees in accordance with the next succeeding section.

1. Section 6 establishes a formula for determining licence fees payable by commercial television stations. Nothing turns on the precise formula. It is based on a graduated scale of percentages of gross earnings which rise as gross earnings increase.

2. Section 7 provides:
   
   

"7. Where the Minister is of the opinion that -

(a) an amount, or part of an amount, earned during any period by a person other than the licensee of a commercial television station would, if the licensee and that person were the same person, form part of the gross earnings of the station in respect of that period for the purposes of this Act; and

(b) a relationship exists between the licensee and the other person (whether by reason of any shareholding of or any agreement or arrangement, or for any other reason) of such a kind that the amount or the part of the amount, as the case may be, should, for the purposes of this Act, be treated as part of the gross earnings of the station in respect of that period,

the Minister may direct that the amount or the part of the amount, as the case may be, shall be so treated."

1. The language of the relevant provisions of para. 4 of the letter under attack is reminiscent of s. 7 of the Licence Fees Act. The attack by the applicant upon the respondent's request for information was based primarily upon the alleged absence of power of the respondent to request the provision of the information and secondly upon the particular form of the request, although the two arguments overlapped.

2. The applicant argued that the requests in paras. 4(b), (c), (e) and (f) of the relevant letter were bad. I turn first to the argument in relation to para. 4(b). It was contended by the applicant that the request under para. 4(b) of the letter that a statement be furnished by the applicant of the earnings "of an entity related to" the applicant with respect to matter televised from the station conducted by the applicant which "had the earnings been received directly by the licensee, would have been required to be included as gross earnings within the meaning of the TVLF Act" was bad for two main reasons. First it was contended that the expression "entity related to the licensee" is uncertain. It is common ground that the expression is not defined in any relevant legislation and that no expression akin to it is defined. It was not suggested that the provisions of Division 3 of Part IV of the Broadcasting and Television Act relating to the control of commercial television stations and to the holding of prescribed interests are applicable. It was contended by the applicant that s. 7 of the Licence Fees Act could not be relied on because it necessarily involves the formation by the Minister of the opinions mentioned in paras. (a) and (b) of that section and the subsequent direction by him that the relevant amounts are to be treated as part of the gross earnings of the station concerned in respect of the relevant period. There is no evidence that the Minister has formed any such opinion; nor was it suggested by the respondent that he has.

3. No argument was offered by the respondent in opposition to the applicant's arguments. The requirement of para. 4(b) is plainly bad as it requires the applicant as licensee to determine for itself what is meant by the expression "any entity related to it". In the absence of any objective criteria to determine the meaning of that expression, the request in para. 4(b) is bad for uncertainty. It must be remembered that serious consequences may flow to a licensee from its failure to furnish the Tribunal with information sought by it. Failure to comply with a provision of the Broadcasting and Television Act or any condition of a licence constitutes an offence against that Act: s. 132. Also, the Tribunal may refuse to renew a licence if it is satisfied that a condition of the licence has not been complied with: sub-para. 86(11B)(c)(iii). Section 129 provides that every licence granted under the Act is subject to the provisions of the Act and the regulations and those provisions are deemed to be incorporated in the licence as terms and conditions of the licence.

4. The second limb of the attack on this request for information was that, even if it were possible to determine the identity of the "entity related to" the applicant, there are no earnings of that entity which could answer the description of earnings which "had the earnings been received directly by the licensee, would have been required to be included in gross earnings within the meaning of the TVLF Act" because the Minister has not formed any opinion or given any direction under s. 7 of the Licence Fees Act and there is no other basis for identifying any of the alleged earnings specified in the request for information.

5. The respondent sought to read the request as if it said "would be liable to have been required to be included in the gross earnings" etc. The emphasis is mine. I do not think that the request bears this construction; but even if it could, it would not answer the objection raised by the applicant. The applicant's objections to the request for information in para. 4(b) therefore succeeds.

6. I turn to the applicant's attack on the request made in para. 4(c) of the letter. Insofar as the request relates to the alleged "entity" then the first argument already mentioned would apply to strike down this request. Para. 4(c) also relates to a statement of earnings by the licensee itself. The applicant argued that the request for the statement of earnings by the licensee was bad because the only information about gross earnings which the Tribunal is empowered to seek is with respect to "gross earnings" as defined by sub-s. 4(1) of the Licence Fees Act (see para. 106(5)(b) of the Broadcasting and Television Act) and those provisions relate to the gross earnings of the licensee only. The next step in the argument involved Form ABT 9 which is the form referred to in para. 4(c) of the request. That form provides for a statutory declaration requiring the statement of gross earnings of the relevant television station in terms which follow in all relevant respects the definition of "gross earnings" in the Licence Fees Act. Hence, so the argument went, the only information about gross earnings of the applicant which the Tribunal is empowered to seek is the information requested in From ABT 9; yet para. 4(c) of the request requires the applicant to furnish information about its earnings "which earnings have not been included in Form ABT 9 as gross earnings of the licensee".

7. The argument advanced by the respondent in opposition to this contention, and put persuasively by its counsel, turned on s. 3 of the Licence Fees Act which provides:
   
   

"3. The Broadcasting and Television Act 1942 (1964) is incorporated and shall be read as one with this Act."

1. It was contended that the Broadcasting and Television Act should be given an extended application so as to cover things done under the Licence Fees Act and in particular so as to authorise the Tribunal to require the provision by the licensees of television stations of information of the kind which would enable the Minister to form the opinions and give the direction contemplated by s. 7 of the Licence Fees Act.

2. It is not uncommon to find in an Act a provision that an earlier Act is incorporated and shall be read as one with the later Act. The effect of such a provision is to transpose the earlier into the later Act or to write every provision of the earlier Act into the later Act as if they had been actually printed into it. It is a rule of construction of statutes; but it cannot be used in effect to amend the provisions of the earlier Act which is to be read as one with the later Act. Sometimes an Act provides that it is incorporated and shall be read as one with an earlier Act. The effect is the same namely, to transpose the later into the earlier Act. See generally the Canada Southern Railway Company v. The International Bridge Company (1883) 8 AC 723 per Lord Selborne at p 727; Osborne v. The Commonweath of Australia (1911) 12 CLR 321 especially per Barton J. at pp 342 and 343; Perpetual Trustee Co. (Limited) v. Wittscheibe (1940) 40 SR (NSW) 501 per Jordan C.J. at p 510; Cadbury-Fry-Pascall Pty. Limited v. Federal Commissioner of Taxation (1944) 70 CLR 362 per Williams J. at p 388 and the cases there cited; Tasman Timber Limited v.Minister for Industry and Commerce (1983) 46 A.L.R. 149.

3. The respondent placed considerable reliance upon the judgment of Smith J. in Georgoussis v. The Medical Board of Victoria (1957) VR 671. That case concerned the Medical Act 1928 (Victoria) - the principal Act. It was amended by a series of Acts, the first amending Act being the Medical Act 1933. Each amending Act contained a provision that it was to be read and construed as one with the principal Act and the Acts amending the same. The latest in the series of amending Acts was the Medical (Registration) Act 1956 which provided:
   
   

"1. This Act may be cited as the Medical (Registration) Act 1956 and shall be read and construed as one with Part I of the Medical Act 1928 (hereinafter called the "Principal Act") and the Acts amending the same all of which Acts and this Act may be cited together as the Medical Acts." p. 673.

1. Smith J. said at p. 675:
   
   

"'It is true that in Kirkness v. John Hudson & Co. (1955) AC 696 it was made clear by the House of Lords that what Lord Selborne said cannot be regarded as authority for holding that a provision for reading two Acts together can cause expressions in the earlier of the two Acts to be construed as meaning and having always meant something which, in their original context, they were not fairly capable of meaning. Any other view would involve, in effect, allowing the later Act to operate to amend the earlier retrospectively by mere implication. But the decision does not appear to me to cast any doubt on the view that when an Act is passed containing a direction that it shall be read and construed as one with an earlier Act expressions such as 'under this Act' appearing in the earlier Act must, in the absence of some indication of an intention to the contrary, be given an extended application as from the date of the later Act so as to cover, as from that date, things done under the later Act. The view that they should be given such an extended application appears to me to be supported by the cases already referred to and also by several other cases relating to the construction of similar expressions appearing in the later of the two Acts: compare Read v. Joannon (1890), 25 QBD 300; Willingale v. Norris (1909) 1 KB 57; Charing Cross West End and City Electricity Supply Co. v. London Hydraulic Power Co., (1913) 3 KB 442 and (1914) 3 KB 772."

1. The Georgoussis Case does not in my view assist the respondent's argument. First, because the provisions there under consideration were Acts which amended the principal Act and second, because it was the later amending Acts which were to be read as one with the principal Act, not vice versa as applies in the present case. These two considerations distinguish the Georgoussis Case from the present case.

2. Reference was also made in argument to R v. Wheeldon (1978) 18 ALR 619, a judgment of a Full Bench of this Court (Bowen C.J., Blackburn and Fisher JJ.), which concerned the question whether in the Australian Capital Territory, since the coming into operation of the Death Penalty Abolition Act 1973 (Cth) and the Crimes Ordinance 1974 (A.C.T.) the penalty of imprisonment for life for the crime of murder was mandatory. Wheeldon's Case was concerned with very different legislative provisions from those under consideration here and I see nothing in the judgments of the members of the Court in that case which assist the respondent's argument here.

3. It is permissible, when applying s. 3 of the Licence Fees Act, to transpose the provisions of the Broadcasting and Television Act into the Licence Fees Act; but not in effect to amend the Broadcasting and Television Act in the process; and this is really what the respondent is seeking to do. The primary argument of the respondent is that the duty of the licensee which is imposed by para. 106(4)(b), when incorporated in the Licence Fees Act, is to furnish to the Tribunal information with respect to the activities or affairs of the licensee, relevant not only to the operation of the Broadcasting and Television Act, but also to the operation of the Licence Fees Act. Hence, so the argument proceeds, it is in aid of the Minister's powers under s. 7 of the Licence Fees Act that the Tribunal seeks to obtain the information the subject of the request. The argument continued that the Tribunal is obliged to assemble that information by virtue either of para. 106A(1)(a) or para. 106(1)(c) (the latter provision relating to the performance of the Tribunal's functions under para. 16(1)(h)). The information thus procured is available to the Minister to enable him to perform his functions under s. 7 of the Licence Fees Act.

4. The fallacy in this argument is that one cannot read the expression "this Act" in para. 106(4)(b) of the Broadcasting and Television Act other than as what it says. It cannot be read as if it meant "this Act and the Television Stations Licence Fees Act 1964". To so construe the provision would be to pass beyond interpretation and enter the impermissible field of amendment.

5. In my opinion the respondent has mistakenly conceived its function as including the power to collect information from licensees relating to the administration of the Licence Fees Act. It has no power to do this.

6. It follows that there is probably a lacuna in the Licence Fees Act. Although the Minister may form the opinions and give the direction referred to in s. 7, there is no power conferred by that Act upon any person to obtain the relevant information to enable those opinions to be formed and the direction given. Nor may any power be found under the Broadcasting and Television Act. It is common ground that no other power exists outside the ambit of those two Acts. If this is so then it is a problem which may attract the attention of Parliament. I therefore reject the argument of the applicant with respect to the request for information contained in para. 4(c) of the letter under challenge.

7. It is common ground that the requests in paras. 4(e) and (f) of the letter are consequential to (c) and that, if (c) fails, (e) and (f) also fail.

8. In my opinion the applicant has made out its case and is entitled to an order quashing the decision under review.