Amalgamated Television Services Pty Ltd v The Minister of State for Communications
[1982] FCA 276
•16 DECEMBER 1982
LIMITED, UNITED TELECASTERS SYDNEY LIMITED
And: THE MINISTER OF STATE FOR COMMUNICATIONS
No. G. 155 of 1982
Administrative Law
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.
Administrative Law - whether Australian Broadcasting Control Board determined areas appropriate to be served by Sydney metropolitan television stations under sub-s. 105AB (2) - whether Minister's later determination was a variation thereof under sub-s. 105AB (3) - whether determinations valid - construction of Board's Minutes and of GazetteBroadcasting and Television Act 1942 ss. 105AA, 105AB, 105AD, 105B
Administrative Decisions (Judicial Review) Act 1977 SS. 7(1), 16(3)
SYDNEY
#DATE 16:12:1982
THE COURT ORDERS THAT:1. The application be dismissed.
2. There be no order as to costs.
This case raises short questions of construction of two documents. The questions concern Division 5A of the Broadcasting and Television Act 1942 ("the Act") which relates to commercial television and broadcasting translator stations. The first question arises from the form which the Act took on 7 September 1976 and the second question from its form in May-June 1980. It is easier to understand the questions if I defer stating them until I have mentioned the statutory provisions and facts from which they arise.
The provisions of Division 5A of the Act which are relevant for present purposes were in the following form on 7 December 1976:-
'105AA. In this Division -
'metropolitan broadcasting area' means an area determined by the Board under sub-section (1) of section 105AB to be an area appropriate to be served by metropolitan broadcasting stations;
'metropolitan broadcasting station' means a commercial broadcasting station situated within a radius of 50 kilometres from the General Post Office in the capital city of a State;
'metropolitan television area' means an area determined by the Board under sub-section (2) of section 105AB to be an area appropriate to be served by metropolitan television stations;
'metropolitan television station' means a commercial television station the principal studio of which is situated within a radius of 32 kilometres from the General Post Office in the capital city of a State.'
'105AB. (1) For the purposes of this Division, the Board shall determine an area in each State as the area appropriate to be served by the metropolitan broadcasting stations in the State, being an area that includes the capital city of the State.
(2) For the purposes of this Division, where there are 2 or more metropolitan television stations in a State, the Board shall determine an area in the State as the area appropriate to be served by those metropolitan television stations, being an area that includes the capital city of the State.
(3) The Board may vary a determination under sub-section (1) or (2).
(4) The Board shall keep copies of maps showing the boundaries of all areas determined by it under sub-sections (1) and (2) and any person may inspect, and may make a copy of, such a map.'
The only materially relevant change to those provisions effective in May-June 1980 was that the "Minister" was substituted for the "Board" wherever occurring. "The Board" was the Australian Broadcasting Control Board.
The definition of the areas served by commercial television stations and of the areas designed to be served by proposed commercial television translator stations is, and at all relevant times was, vital to the operation of the Act and to the interests of licensees and prospective licensees for various purposes which it is unnecessary to relate in detail. It is sufficient for present purposes to say that the Act adopts a principle that, subject to the necessity of ensuring that the needs of the community in the area to be served by the television translator station are adequately served, it is desirable that a television translator station licence for the purpose of retransmitting programs for reception in an area that is not within a metropolitan television area should be granted for the purpose of retransmitting the programs of a station that is not a metropolitan television station in preference to one that is (sub-ss. 105B (2A) and (2B) ).
Similar provisions apply to the granting or renewal of licences for commercial broadcasting translator stations (sub-ss. 105AD (3) and (4) ).
The Board met on 7 September 1976. There was before it a document titled 'Determination of Areas to be Served by Broadcasting and Television Stations'. The document was in the form of a submission to the Board and stated its purpose as being 'for the Board to determine areas of coverage by broadcasting and television stations.' It set out certain sections of the Act in the form which they then took including ss. 105AA and 105AB. After citing those provisions the document said:-
'In accordance with the above provisions, it will be necessary for the Board to formally determine areas appropriate to be served by metropolitan broadcasting and television stations. It will be noted that it is necessary only for the Board to determine areas for metropolitan stations.'
The document concluded with a recommendation in these terms:-
'Recommendation
It is recommended that the Board adopt the envelope of all individual metropolitan station coverages as set out on the coverage maps of metropolitan broadcasting and television stations recently published and formally determine the areas which may be used in connection with the provisions of the amended Act. It will be noted that under section 105AC. (sic) an appeal may be made to the Administative Appeals Tribunal against the Board's determinations.'
The relevant Minute of the Board's meeting of 7 September 1976 under the heading 'Determination of Areas to be Served by Broadcasting and Television Stations' provides:-
'The Board considered a paper concerning the areas of coverage of broadcasting and television stations in relation to the provisions of the Broadcasting and Television Amendment Act 1976, which were set out in this Agendum.
The Board formally determined to adopt the individual coverage of metropolitan stations as set out in the coverage maps as the areas appropriate to be served by those stations for the purposes of the provisions of s. 105AB (1) of the Act...'
It is common ground that there were four 'coverage maps' referred to in the document submitted to the Board which I have mentioned above and in the Board Minute and which were before the Board at its meeting on 7 September 1976, that those maps covered the areas of southern Queensland, New South Wales, Victoria, Tasmania and South Australia and were current on 7 September 1976 and that two of the maps related to the areas for commercial broadcasting stations and two for commercial television stations including in each case metropolitan stations.
The only other material fact is that the Minister of State for Post and Telecommunications made a determination dated 21 May 1980 published in the Gazette on 10 June 1980 in these terms:-
'Broadcasting and Television Act 1942
DETERMINATION UNDER SECTION 105AB (3)
I, Anthony Allan Staley, Minister of State for Post and Telecommunications, in pursuance of Section 105AB (3) of the Broadcasting and Television Act 1942, determine the area in the State of New South Wales appropriate to be served by metropolitan television stations in the State to be the Sydney Statistical Division as defined by the Australian Bureau of Statistics at the Census of 30 June 1976.
Dated this twenty-first day of May 1980.
A. A. STALEY Minister of State for Post and Telecommuncations'
It is common ground that a map which was tendered in evidence before me titled 'Sydney Statistical Division 1976 Census' defines the area referred to in the Minister's Determination of 21 May 1980.
The applicants, who are respectively the licensees of Sydney metropolitan commercial television stations ATN-7, TCN-9, and TEN-10, submitted that the determination by the Board on 7 September 1976 was made solely under sub-s. 105AB (1) in relation to the area in New South Wales appropriate to be served by the metropolitan broadcasting stations in that State and could not be construed also as a determination in relation to the area appropriate to be served by the metropolitan television stations under sub-s. 105AB (2).
They submitted that the determination of the Minister dated 21 May 1980 was made solely under sub-s. 105AB (3) and therefore could have no force other than as a variation of the earlier determination of the Board, and that, as the determination of the Board was not made under sub-s. 105AB (2), it followed that the Minister's determination was ineffective and inoperative.
In these circumstances it was said that the Minister failed to make a decision pursuant to sub-s. 105AB (2), thus entitling the applicants to seek an order of review pursuant to sub-s. 7 (1) of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). Reference was made to the scope of relief available under sub-s. 16 (3) of the Judicial Review Act.
The respondent submitted first that the determination of the Board in 1976 was made under both sub-ss. 105AB (1) and (2) and applied to the areas appropriate to be served by metropolitan broadcasting stations and metropolitan television stations. The respondent submitted that, on its true construction, the determination of the then Minister for Post and Telecommunications dated 21 May 1980 was therefore valid as it was simply a variation of the Board's earlier determination with respect to television stations. The respondent submitted in the alternative that properly construed the Minister's determination of 21 May 1980 constituted a fresh determination under sub-s. 105AB (2) of the area to be served by metropolitan television stations in New South Wales.
It is common ground that this Court has jurisdiction under the Judicial Review Act to determine these questions and that the applicants are persons aggrieved in the relevant sense for the purposes of that Act. Notwithstanding the filing by the respondent of a notice of objection to competency, it is agreed by all parties that the questions raised by that objection and those involved in the application are in substance the same.
If it were not for the reference to sub-s. 105AB (1) in the Board's determination of 7 September 1976 it would, I think, be plain that it extended to both broadcasting and television stations and thus constituted a determination under each of sub-ss. 105AB (1) and (2). It was not submitted that those sub-sections necessarily required the making of separate determinations for the purposes of each sub-section. Nor do I think that any such submission would be sound.
The difficulty arises from the presence in the determination of the Board of the words '...for the purposes of the provisions of section 105AB (1) of the Act.' This reference is at least curious and, on any view, confusing.
The document which was before the Board on 7 September 1976 and which I cited earlier concluded with a recommendation to the Board manifestly intended to apply to areas to be served by broadcasting stations and by television stations. The Minute of the Board's own deliberations, when viewed as a whole, establishes to my satisfaction that the Board intended to make determinations of areas appropriate to be served by metropolitan broadcasting stations and by metropolitan television stations notwithstanding the reference to sub-s. 105AB (1). It would be extraordinary if the position were otherwise for it would then necessarily follow that the Board, although conscious of the necessity to make a determination of the relevant area to be served by metropolitan television stations in New South Wales, for no apparent reason (nor was any suggested in argument) did not make any such determination.
As to the later determination dated 21 May 1980 of the then Minister for Post and Telecommunications, in my opinion it was a variation by the him of the earlier determination of the Board. This conclusion is subject to considering one further submission made by the applicants namely, that the Minister's power under sub-s. 105AB (3) is limited to varying a determination of the Minister under either of the two immediately preceding sub-sections and not that of his predecessor namely, the Board. The applicants relied upon the fact that the power to make a determination under either of sub-ss. 105AB (1) or (2) and to vary such a determination under sub-s. 105AB (3) is in each case vested in the Minister. There may have been some force in this argument if sub-s. (3) in terms was limited to empowering the Minister to vary his own determination under sub-ss. (1) or (2). But it is not so limited. It provides that the Minister may vary a determination 'under sub-section (1) or (2)'. In my opinion, this power extends to the variation of a determination made by the Board before the Minister was substituted for it as the relevant authority by Act No. 187 of 1976.
Accordingly, I am satisfied:-
(a) that on 7 September 1976 the Board determined the area in New South Wales as the area appropriate to be served by the metropolitan television stations in that State being an area that included Sydney; and
(b) that by the determination dated 21 May 1980 and published in the Gazette on 10 June 1980 the then Minister for Post and Telecommunications varied the Board's determination of 7 September 1976 by determining the area in New South Wales appropriate to be served by the metropolitan television stations in that State as the Sydney Statistical Division as defined by the Australian Bureau of Statistics at the Census of 30 June 1976.
I would dismiss the application.
Normally costs would follow the event. But the terms of the two determinations in question have given rise to doubts as to their true meaning. The concern of the applicants to put this doubt to rest by a binding determination of this Court is understandable. Indeed, counsel for the applicants said that the primary concern of the applicants was to establish with certainty the meaning and effect of the two determinations rather than to contend for a particular construction or result. As the ramifications of the questions raised in this case extend beyond the interests of the applicants into the domain of public interest it was prudent that the questions be submitted for judicial determination. In these circumstances I would make no order as to costs.
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