Australian Broadcasting Tribunal & Actors Equity of Australia Ltd v Saatchi & Saatchi Compton (Vic) Pty Ltd

Re: AUSTRALIAN BROADCASTING TRIBUNAL and ACTORS EQUITY OF AUSTRALIA LIMITED
And: SAATCHI AND SAATCHI COMPTON (VIC.) PROPRIETARY LIMITED
Nos. NSW G426 and G432 of 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.
Fox J.
Wilcox J.

CATCHWORDS

Administrative law - Judicial review - Australian Broadcasting Tribunal's power to determine standards of televising advertisements - Whether requirement of production of advertisements in Australia is within power.

Administrative Decisions (Judicial Review) Act 1977 (Cth.)

Broadcasting and Television Act 1942 (Cth.)

HEARING

SYDNEY
#DATE 13:6:1985

ORDER

That orders 3, 4, 5 and 8 pronounced by Beaumont J. on 30 November 1984 be set aside.
Otherwise the appeals be dismissed.
That the AUSTRALIAN BROADCASTING TRIBUNAL pay to SAATCHI AND SAATCHI COMPTON (VIC.) PROPRIETARY LIMITED its costs of the appeal.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

These are two appeals from a single Judge of this Court against a judgment given on 30 November 1984 under the Administrative Decisions (Judicial Review) Act 1977. The facts and the circumstances of the litigation are set forth in the reasons for judgment of Fox J. and need not be repeated.

The principal questions which arose on the appeals concerned the validity of the Television Programme Standards when issued in 1970 by the Australian Broadcasting Control Board, the effect of para.39 of those Standards at the time the Tribunal made the decision to enter upon the conduct challenged in the application, and the validity and effect of circular letter T.10 issued by the Australian Broadcasting Tribunal on 11 July 1978 and amended on 5 May 1981.

In 1970 the Broadcasting and Television Act 1942 provided in sub-s.100(4) that a licensee shall comply with such standards as the Board determines in relation to the broadcasting or televising of advertisements. This was contained in "Division 5 - Programmes" in "Part IV - The Commercial Broadcasting Service and the Commercial Television Service". It was a provision which was directed to licenses and it placed an obligation upon each licensee to comply with standards determined by the Board. It assumed the Board had power to determine standards but did not itself purport to confer any power upon the Board.

One observation which may be made in passing is that this sub-section did not refer to conditions of the licence. Such conditions were at that time determined by the Minister, not by the Board (s.89).

The main provisions of the Act in force in 1970 which conferred powers upon the Board relevant to this case were to be found in ss.16 and 17. These were as follows:

"16.(1) The functions of the Board are -

(a) to ensure the provision of services by broadcasting stations and television stations in accordance with plans from time to time prepared by the Board and approved by the Minister;

(b) to ensure that the technical equipment and operation of such stations are in accordance with such standards and practices as the Board considers to be appropriate;

(c) to ensure that adequate and comprehensive programmes are provided by commercial broadcasting stations and commercial television stations to serve the best interests of the general public; and

(d) to detect sources of interference, and to furnish advice and assistance in connexion with the prevention of interference, with the transmission or reception of the programmes of broadcasting stations and television stations,

and shall include such other functions in relation to broadcasting stations and television stations as are prescribed.

(2) The Board may make recommendations to the Minister as to the exercise by the Minister of any power under Part IV of this Act.

(3) The Board shall have power -

(a) subject to any direction of the Minister, to determine the situation and operating power of a broadcasting station or television station;

(b) subject to any direction of the Minister, to determine the frequency of a broadcasting station and the frequencies of a television station, within bands of frequencies notified to the Board by the PostmasterGeneral as being available;

(c) to determine the hours during which programmes may be broadcast or televised;

(d) to determine the conditions subject to which advertisements may be broadcast or televised by licensees; and

(f) to conduct examinations as to the competency of persons to operate the technical equipment of broadcasting stations and television stations and to charge fees in respect of those examinations.

(4) In exercising its functions and powers under this section in relation to commercial broadcasting stations and commercial television stations, the Board shall consult representatives of those stations.

(5) The Board shall have power, subject to the approval of the Minister and of the Treasurer, to provide financial assistance and other assistance to commercial broadcasting stations, for the purpose of ensuring that programmes of adequate extent, standard and variety are provided in the areas served by those stations.

17. (1) For the purpose of exercising its powers and functions under this Act, the Board 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 Board -

(a) shall be in writing;

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

(c) shall have the force of law.

(3) Sections forty-eight, forty-nine and forty-nine A of the Acts Interpretation Act 1901-1964 shall apply to orders made by the Board in like manner as they apply to regulations.

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

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

(6) A direction given orally shall be given to the person required to comply with the direction and thereupon that person shall comply with the direction.

(7) Where a direction is given orally, the Board shall, within twenty-four hours thereafter, record the direction in writing.

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

The functions of the Board laid down in sub-s.16(1) were very wide. But they were functions not powers. The powers of the Board were to be found in sub-s.16(3) and s.17. In sub-s.16(3) there was no express power to determine standards. However, there was in para.16(3)(d) power to determine the conditions subject to which advertisements might be broadcast or televised by licensees. The word "conditions" was here used not in the contractual sense, where it is commonly contrasted with warranties, but in the sense of the circumstances or rules subject to which advertisements might be televised. In this sense it would in my opinion be wide enough to include the determination of standards for the televising of advertisements. It lay with the Minister not the Board at that time to determine conditions of the licence, which suggests sub-s.16(3)(d) was dealing with conditions generally in the sense which I have indicated above.

Section 17 was another source of power for the Board, conferred for the purpose of enabling it to exercise its powers and functions under the Act.

Although sub-s.16(1) did not confer powers on the Board but stated only functions, sub-s.17(1) gave the Board certain powers to exercise those functions, so that one may refer to sub-s.16(1) to ascertain the ambit of powers conferred by sub-s.17(1).

Sub-section 17(1) empowered the Board in exercising its powers and functions to do three things: first, to make orders, secondly, to give directions and thirdly, to do all such other things as it thought fit. So far as this case is concerned orders and directions may put to one side. Orders were clearly intended to be rules of general application which would have the force of law (sub-s.17(2)). They were governed by ss.48,49 and 49A of the Acts Interpretation Act 1901, which, inter alia, would require them to be published in the Commonwealth Gazette and to be laid before both Houses of Parliament within fifteen sitting days, otherwise they would be of no effect. There is no suggestion that para.39 followed this course. A direction on the other hand was to be given to the person required to comply with it. A copy of a direction given in writing had to be served personally or by post on the person required to comply. There is no suggestion that para.39 followed this course.

This leaves the third method, namely, that the Board might do all such other things as it thought fit. This would, in my view, enable the Board to make a general determination relating to matters within its powers and functions, which did not have the force of law like an order and was not addressed to any particular person like a direction, but which it might publish and require to be observed.

What would be the consequence of failure to comply with such a general determination is not entirely clear. Of course, if the determination laid down, for example, standards in relation to the televising of advertisements or conditions concerning the televising of advertisements on Sunday, a licensee who failed to comply would commit a breach of sub-s.100(4) or sub-s.100(5) and so become liable for an offence under s.132. If the determination laid down conditions, for example, concerning the televising of advertisements on week-days which were not standards, it is difficult to see what the sanction would be for failure to comply, leaving on one side any consequential effect that such failure might have on the renewal of the licence.

In addition to the obligation imposed by sub-s.100(4) upon a licensee to comply with standards determined by the Board in relation to advertisements, an obligation was imposed upon a licensee by sub-s.99(1) to provide programs and to supervise the televising of programs in such manner as to ensure "as far as practicable" that the programs were in accordance with standards determined by the Board. Like sub-s.100(4), sub-s.99(1) assumed that the Board had power to determine standards in relation to programs, but did not itself purport to confer power on the Board to do so. Insofar as both might cover the televising of advertisements, no clue was given as to the way in which the somewhat different obligations were to be reconciled so far as advertisements were concerned. Presumably the specific words of sub-s.100(4) would prevail.

In the result, I conclude that the Board had power under para.16(3)(d) and s.17 to determine conditions, including standards, for the televising of advertisements. It remains to consider whether para.39 was a determination of standards or, if not, whether it could be supported as a determination of some other kind of condition. It will be convenient to deal with this later, after considering the powers of the Australian Broadcasting Tribunal and the validity of the Tribunal's circular letter T.10.

The Australian Broadcasting Tribunal was established by the Broadcasting and Television Amendment Act (No.2) 1976. It took the place of the Australian Broadcasting Control Board. Sub-section 18(11) of the amending Act provided:

"(11) Any act or thing done by the Board under a provision of the Principal Act before the commencing day has effect on and after that day as if it has been done by the Minister or the Tribunal, as the case requires, under the corresponding provision of the Principal Act as amended by this Act."

Assuming para.39 was then in force, this provision had the effect of keeping it on foot as if it had been determined by the Tribunal under the corresponding provision of the Act as amended.

The question arises whether there was a corresponding provision which applied to the Tribunal. I have referred to the powers conferred on the Board by para.16(3)(d) and s.17 of the previous Act which might be relied upon to support the issue of para.39. The first thing to notice about the amending Act is that it repealed the old s.16 and inserted a new section 16. The new s.16 had in it no powers corresponding with those set forth in old sub-s.16(3). The new s.16 contained the following statement of functions:

"16.(1) The functions of the Tribunal are to perform the duties and to exercise the powers imposed or conferred upon it by other provisions of this Act and, in addition -

(a) to determine the standards to be observed by licensees in respect of the broadcasting or televising of programs;

(b) to determine the conditions subject to which advertisements may be broadcast or televised by licensees; and

(c) to determine the hours during which programs may be broadcast or televised by licensees,

and include such other functions in relation to broadcasting stations and television stations as are prescribed."

Section 17 remained unamended except for the substitution of "Tribunal" for "Board" in the section.

The relevant sections of the Broadcasting and Television Amendment Act (No.2) 1976 came into force on 1 January 1977. It seems that para.39, assuming it to be otherwise a valid exercise of power by the Board under s.17, would have effect on and after 1 January 1977 as if it had been done by the Tribunal under s.17. The failure to continue the powers contained in old para.16(3)(d) would not be fatal.

It is to be noted that by the Broadcasting and Television Amendment Act 1977, which came into force on 1 January 1978, s.16 was again amended. In its amended form which is the form at present in force, it provides:

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

(a) . . . .

(b) . . . .

(c) . . . .

(d) to determine the standards to be observed by licensees in respect of the broadcasting or televising of programs;

(e) to determine the conditions subject to which advertisements may be broadcast or televised by licensees;

(f) to determine the hours during which programs may be broadcast or televised by licensees;

(g) to hold inquiries as provided by this Act or as directed by the Minister under section 18, and to publish reports in relation to those inquiries;

(h) . . . . . .

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

By virtue of s.17 the powers of the Tribunal thereafter have embraced the power to "do all such . . . things as it thinks fit" for the purpose of exercising the specific functions set forth in new sub-s.16(1) including those in paras. (d) and (e). Accordingly para.39, assuming it was otherwise valid, continued in force and effect.

I come now to Circular Letter No. T.10 which was issued by the Tribunal on 11 July 1978 and amended by Tribunal determination on 5 May 1981. In this circular letter the Tribunal referred to the fact that the Television Program Standards administered by the Tribunal required advertisements on Australian television, with limited exceptions, to be produced in Australia. It stated:

"In response to a number of inquiries . . . . . the Tribunal has prepared the following consolidated statement of its rules relating to the imported content of Australian television advertisements."

Then followed a statement of the rules, the prohibition contained in para.39 but qualified it in some respects. Material parts of T.10 have been set forth in the reasons for judgment of Fox J. The phrase "rules relating to the imported content of Australian television advertisements" is a more appropriate reference to the matters laid down by para.39 and T.10 than word "standards".

In my opinion the Tribunal was by the Act at present in force charged with the function of determining standards to be observed by licensees in respect of the televising of programs (which in my view included advertisements), and that of determining the conditions subject to which advertisements might be televised by licensees. It had the power, for the purpose of exercising these functions, to do such things as it thought fit. This would, I consider, include power to issue statements or circular letters laying down rules dealing with relevant matters in this area.

I do not consider that s.114 or para.83(5)(b)(ii), which are concerned with the encouragement of the use of Australians in production and presentation or provision of programs, have any material bearing on the powers of the Tribunal relevant to this case. Section 114 was directed to the Australian Broadcasting Commission and licensees. Paragraph 83(5)(b)(ii) is directed to applicants for licenses. However, it is clear from these provisions that the legislature was concerned with the encouragement of the use of Australians in this field. It would be proper for the Tribunal to have this in mind in carrying out the powers and functions conferred upon it.

In considering the validity of any particular decision or conduct of the Tribunal, it is necessary to identify from the form of the decision or conduct the power which is being exercised. It is here that the principal difficulty in this case arises. Power is conferred upon the Tribunal by s.17 to exercise the function stated in para.16(1)(d) to determine the standards to be observed by licencees in respect of the televising of programs. That power does not extend to the regulation of circumstances connected with the production of a program, where those circumstances are not intrinsically related to the nature of the end product. As was said by the High Court in Herald-Sun T.V. Pty. Limited v Australian Broadcasting Tribunal (21 May 1985 - as yet unreported)

"A standard determined for a television program must fix the quality or nature of the program in such a way that both the licensee required to observe the standard and the court or other body called upon to decide whether it has done so can determine whether the program answers the criteria set by the standard."

Paragraph 39 and T.10 require the production of advertisements in Australia subject to certain qualifications but in no way is this related in terms to the quality or nature of the advertisement produced. It was argued that para.39 and T.10 were directed to the Australian character of advertisements. But the thrust of the documents is towards the use of Australian people and resources and the encouragement of Australian industry and talent in the production of the advertisements and not towards the nature of the end product. In my view para.39 and T.10, however admirable may be their purpose, do not lay down standards in respect of the televising of advertisements.

However, power is also conferred upon the Tribunal by s.17 to exercise the function stated in para.16(1)(e) to determine the conditions subject to which advertisements may be televised by licensees. Much of the material contained in para.39 and T.10 could have been framed so as to fall within an exercise of this power. The question arises whether this power has been exercised.

Paragraph 39 appears in a section of a document issued under the title "Television Programme Standards". The particular section of the document, which includes para.39 commences at para.36 and is separately headed "Advertising Standards". Under a sub-heading "General Advertising Standards" para.36 appears. It starts with a reference to s.100 of the Broadcasting and Television Act 1942 and then sets forth material parts of sub-ss.(1) to (5). Sub-section (4), as has been noted earlier, provides that a licensee shall comply with such standards as the Board determines in relation to the televising of advertisements. Looking at the document as a whole, this appears to be intended to be a reference to the source of power to lay down the directions which follow, as well as a reminder to licensees of their obligation to observe those directions. As I have indicated above my view is that sub-s.100(4), while it assumes there is power to prescribe standards does not itself confer such power. However that may be, much of the material included in the document certainly relates to program standards and, in particular, much of the material included in the section headed "Advertising Standards" is clearly dealing with standards in relation to television advertisements. (See for example paras. 36,38,40). The headings used appear appropriate enough for a substantial part of the document.

So far as circular letter T.10 is concerned, it accepts and refers to the "Television Program Standards" but itself bears the heading "Imported Content of Australian Television Advertisements - Consolidated Statement of Australian Broadcasting Tribunal Rules". In its second paragraph it refers to the Tribunal's having prepared, "the following consolidated statement of its rules relating to the imported content of Australian television advertisements." This language, standing alone, may not be inappropriate to the exercise of the power conferred by s.17 in relation to the function conferred on the Tribunal by para.16(1)(e). However, the documents are presented as a combination and the first document containing para.39 remains the governing document. The "rules" in T.10 are presented as a detailed working out of the general principle laid down in the Standards. In its present form T.10 cannot be supported on the basis of the function conferred by para.16(1)(e).

The decision of the Tribunal which was challenged was a decision to adhere to para.39 and T.10 in initiating an inquiry (the terms of reference of which are set out in Annexure F to the affidavit of John Stewart Wenden sworn on 22 June 1984 and filed in these proceedings) as to whether certain television advertisements were produced in conformity with para.39 of the Television Program Standards and Tribunal Circular Letter T.10 of 11 July 1978 (thereafter referred to as "the relevant Standards") and whether, as a result of findings made in relation to that question, existing mechanisms for monitoring the observance of the relevant Standards should be altered or added to, or the relevant Standards should be redrafted to clarify the obligations of licensees. It was held that para.39 and T.10 were ultra vires the Broadcasting and Television Act 1942 and void ab initio, and that the decision to adhere to para.39 and T.10 was likewise ultra vires and void. The Tribunal was restrained from proceeding with the enquiry.

I have already stated my view that the Tribunal would have had power under s.17 and para.16(1)(e) to lay down general rules relating to the imported content of Australian television advertisements had it chosen simply to exercise this power. In view of its dependence on para.39 it is not possible to uphold T.10 separately as a valid exercise of the Tribunal's powers. But even if T.10 were valid, the reliance on para.39 in the terms of reference entails that the decision to hold the inquiry was ultra vires.

It is argued for the respondent that a licensee should not be required to comply with something issued in a document called "Standards", which is not a standard but something else which one might describe as a rule. It is pointed out that failure by a licensee to comply with a standard constitutes a breach of sub-s.100(4) with the consequences provided for in s.132, whereas failure to comply with a general rule such as we have here is not a breach of any statutory provision though it may involve practical consequences at the time when the licence comes up for renewal. This argument carries weight in my opinion. A licensee is entitled to know what source of power the Tribunal is relying on. Where a statutory authority has purported to exercise one of its powers but has in fact acted outside that power, it would only be in exceptional circumstances that the act could be upheld as a valid exercise of another head of power.

It is true that an appeal court reviewing the decision of a lower court involving the exercise of discretion will decline to upset the decision, if notwithstanding the lower court has relied upon a wrong ground or given a wrong reason, the decision is supportable upon another ground or for other reasons and is considered correct by the appeal court. But in such cases rights inter partes are ordinarily involved and it would be an exercise in futility to send the matter back for the same result to be achieved in a proper manner by the court below. Furthermore, it seems the executive can rely upon a power other than one expressly specified when its decision was made, provided a proper head of power is available to support its action (see Lockwood v Commonwealth (1954) 90 C.L.R. 177 at p.184). Nevertheless, the question here is 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 authorise its action, on the ground that there was another appropriate power upon which it could have relied. I am not aware of local authority on this question. Some aspects of the matter have been considered in the United States of America. In American Jurisprudence 2nd ed. under the title Administrative Law at para.756 it is stated:

"It is a fundamental rule of administrative law that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency as disclosed by the record. The orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be adequately sustained or the action cannot be upheld, even though there are other grounds upon which the agency could have, but did not, base its action. If the grounds invoked by an administrative agency for its determination are inadequate or improper, a reviewing court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis." (Footnotes referring to the cases have been omitted). See also Schwartz, Administrative Law p.586, para.207.

It may be suggested that consideration of some of the cases referred to in that passage indicates that the reference to "grounds" is restricted to factual grounds, though in my view it is not limited in this way. However that may be, it is necessary to decide what rule is to be applied in Australia in the absence of authority which is binding upon us.

The proliferation of statutory bodies authorised to lay down rules affecting citizens in one way or another makes the question an important one. On the one hand it is desirable that the proper activities of such bodies should not be hampered by any unnecessary introduction of technicalities. On the other hand the citizen confronted with rules he is required to observe is entitled to know with some precision what binding authority the rules have and what the consequences of non-observance may be.

In my opinion, 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.

In relation to Australian production of televised advertisements, the Tribunal has consistently purported to be exercising a power to fix standards. The relevant content of para.39 and circular letter T.10 does not fall into this category. In the result, I find myself in agreement with the decision of the learned primary Judge and would dismiss the appeal.

Two final matters should be mentioned. It was submitted that T.10 was uncertain and therefore invalid. I do not consider T.10 to be invalid upon this ground. I agree with the observations of Wilcox J. in his reasons for judgment dealing with this question. The second matter concerns the form of orders and declarations pronounced by the learned primary Judge. It was submitted that if the respondent was entitled to any relief, such relief should not extend beyond an inter partes order as to the respondent's rights. However, in my view the respondent has made out its case that para.39 and T.10 are ultra vires and invalid. It is entitled to judgment accordingly. Strictly the judgment is binding between the parties. But as happens constantly with decisions on statutory powers, at least so far as concerns courts and tribunals which are bound to follow the decisions of this Court, the decision so long as it stands unaffected by appeal or by legislative amendment will have consequences extending beyond the parties. It appears to me that any attempt to limit these consequences by some qualified form of order would only create confusion. It is noted that the primary Judge by his orders 3, 4 and 5 of 18 January 1985 ordered that para.39 and T.10 be quashed, the decision to adhere to para.39 and T.10 in initiating its enquiry be quashed, and the summons issued to Russell Walker be also quashed. Order 8 stayed the operation of orders 3, 4 and 5 for 21 days or until the determination of any appeal filed within that time. I consider the other orders made by his Honour to be appropriate and sufficient. I would set aside his orders 3, 4, 5 and 8.

I would dismiss the appeals with costs.

JUDGE2

By summons dated 16 April, 1984 issued by the appellant, Australian Broadcasting Tribunal, the managing director of the respondent was required to produce documents and give evidence to an inquiry to be conducted by the Tribunal into the filming and production of certain television advertisements. The Tribunal is constituted under the Broadcasting and Television Act 1942 ("the Act"). The second appellant, Actors Equity of Australia Limited was joined, apparently at its own request, during the course of the proceedings at first instance. The respondent carries on business as an advertising agency.

The terms of reference of the inquiry were stated as follows:

"1. Whether the following television advertisements transmitted by licensees of commercial television stations during 1983 were produced in conformity with Paragraph 39 of the Television Program Standards and Tribunal Circular Letter T.10 of 11 July 1978 (hereafter referred to as 'the relevant Standards'):

. . British Airways 'Manhattan', Key No. BA/1/90

. . British Airways 'Casablanca', Key No. BA/2/60B

. . British Airways 'God of Thor', Key No. BA/3/60A

. . British Airways 'American Football', Key No.

BA/4/60C

Whether, as a result of findings made under paragraph 1,

(a) existing mechanisms for monitoring the observance of the relevant Standards should be altered or added to; or

(b) the relevant Standards should be redrafted to clarify the obligations of licensees."

Application was made to the Court on 25 June, 1984 for review under the Administrative Decisions (Judicial Review) Act 1977 of conduct of the first appellant going to the decisions to which the inquiry was directed. The challenge was to the validity of para. 39 of the "Television Programme Standards" and of the supplemental circular letter issued by the Tribunal and designated No. T.10.

The learned judge (Beaumont J.) decided the matter in favour of the applicant (respondent), and, among other declarations and orders, declared that para. 39 and the letter No.T.10 were ultra vires and void. The correctness of his decision on these matters is the principal subject of this appeal.

The Tribunal's predecessor, the Australian Broadcasting Control Board, had in 1970 issued "Television Programme Standards". These are now administered and enforced by the Tribunal, although the legislation under or by reference to which they were issued has been amended considerably since then. Various of the paragraphs in the Standards themselves have been amended since 1970.

Part Two of the Standards bears the heading "Advertising Standards". The first paragraph in that Part (para. 36) sets out part of s.100 of the Act as amended to 1969, but a number of further amendments have been made since then. Paragraph 39, which is in Part Two, is as follows:

"39. All televised advertisements must be produced in Australia. Such advertisements may include a proportion not exceeding 20 per cent of the duration of the advertisement:

(a) of pictorial matter (excluding animation) photographed outside Australia only if it portrays persons, places or events which cannot be photographed in Australia; and

(b) of sound recorded outside Australia only if it consists of the voices of personalities or the sounds associated with places or events which cannot be recorded or otherwise created in Australia;

provided that limitation to this proportion shall not apply to pictures or sounds which have been obtained by Australians who journeyed to the places concerned for the purpose of photographing or recording that matter, or to the use of recorded background music which is not directly associated with the sales message of the advertisement."

The Standards carry an indorsement made by the Tribunal, as follows:

"Note:

These Television Program Standards were issued by the Australian Broadcasting Control Board pursuant to its functions prescribed in the Broadcasting and Television Act 1942.

In December 1976 the Act was amended among other things to substitute the Australian Broadcasting Tribunal for the Board.

In accordance with the transitional provisions of that 1976 amending legislation, the Tribunal has continued to administer the Standards determined by the Board."

By way of explanation and elaboration of the advertising Standards, in particular para. 39, the Tribunal issued the circular letter No. T.10, dated 11 July 1978. The first part of the document tendered, which includes a later amendment, is as follows:

"11 July 1978

Circular Letter No. T.10
(as amended by Tribunal determination dated 5 May 1981)

Dear Sir

Imported Content of Australian Television
Advertisements - Consolidated Statement of
Australian Broadcasting Tribunal Rules

The Television Program Standards administered by the Tribunal require advertisements on Australian television, with limited exceptions, to be produced in Australia.

In response to a number of inquiries from advertising agencies and production houses, the Tribunal has prepared the following consolidated statement of its rules relating to the imported content of Australian television advertisements.

The prohibition of imported advertisements does not preclude the use of up to 20% of imported material not obtainable in Australia; the use of material shot overseas by Australian crews; the use of imported material in test market campaigns; the use of New Zealand produced advertisements; the use of imported archival material in advertisements for certain goods; the use of imported footage in advertisements for cinema films and recordings and personal appearances by overseas artists; or the use of computer animation effects. The rules for these are set out below:-

1. Imported Content of Australian Television
Advertisements

Advertisements may include a proportion not exceeding 20 per cent of the duration of the advertisement of:-

(a) pictorial matter (excluding animation) photographed outside Australia only if it portrays persons, places or events which cannot be photographed in Australia; and

(b) sound recorded outside Australia only if it consists of the voices of personalities or the sounds associated with places or events which cannot be recorded or otherwise created in Australia; provided that limitation to this proportion shall not apply to the use of recorded background music which is not related to the sales message of the advertisement.
2. Film Footage obtained overseas by Australian Crews
The following rules apply in cases where more than 20 per cent of material filmed overseas is to be included in an Australian produced advertisement:-
(i) An Australian production crew must be sent overseas to obtain the footage. This should consist of not less than one professional film director, one professional cameraman and one other professional in a category determined by the type of production involved. All three must be ordinarily resident in Australia and employed by a recognised film production company or unit. Others in the party (for example advertising agency personnel) will not be counted as part of the required complement of three.
(ii) If artists or models are to figure prominently in the advertisements then, provided employment conditions in the overseas country permit, at least one Australian resident professional should accompany the production crew for this purpose.
3. Test Market Campaigns
On the understanding that Australian advertisements will eventually be produced, the Tribunal is prepared to permit the use of overseas produced advertisements in test marketing campaigns for new products, provided that each application for such use is submitted beforehand for consideration by the Tribunal. The following conditions apply:-

(i) The test market campaign must be confined to an area in which a single commercial station operates.

(ii) In general, the use of imported advertisements should be limited to no more than four weeks. In the case of a test market for a product which is subject to irregular consumer demand the Tribunal may extend the period.

(iii) The Tribunal is to be provided with a report on the eventual outcome of each campaign, which should include details of Australian advertisements produced as a result of the campaign.

As noted in the document tendered, Clause 4 of the 1978 document was amended on 5 May 1981. The form and contents of the amendment are significant.

"The Tribunal hereby determines, pursuant to s.16 of the Broadcasting and Television Act 1942 (as amended), the following amendments to the Advertising Standards:

1. Clause 4 of Australian Broadcasting Tribunal circular letter T.10 is repealed and the words "for the products of that country" which appear in line 5 of the third paragraph of the said letter are also repealed.

2. The following standard be included in the Advertising Standards in lieu of clause 4:

"4(a) Pursuant to the provisions of the New Zealand-Australia Free Trade Agreement, a television advertisement produced in New Zealand may be televised.

(b) A television advertisement produced in New Zealand is an advertisement that consists solely of matter photographed and sound recorded in New Zealand by New Zealand residents provided that an advertisement will be deemed to be an advertisement produced in New Zealand if it contains no more than 20 per cent of pictorial or sound matter photographed or recorded outside New Zealand if such matter cannot be photographed or recorded in New Zealand or Australia."

3. These amendments take effect from and including 1 May, 1981.

Dated 5 May 1981

For the Tribunal

B.J. CONNOLLY - Secretary DAVID JONES - Chairman"

Arguments on both sides have proceeded on the basis that the Standards, so called, which are set out in the documents were intended to have legal effect. Although issued under legislation which has been amended, their present validity depends upon them being supportable under current legislation, as if made now (see sub-secn. 18(11) of Act No. 187 of 1976 and s. 32 of Act No. 160 of 1977). Section 16 of the Act was repealed in 1976, and a new sec.16 was substituted, and in 1977 the section was again repealed and a new section substituted.

Section 16 as now in force (being that introduced in 1977) reads in part as follows:

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

(d) to determine the standards to be observed by licensees in respect of the broadcasting or televising of programs;

(e) to determine the conditions subject to which advertisements may be broadcast or televised by licensees;"

Section 17 is 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.

(3) Sections 48, 49 and 49A of the Acts Interpretation Act 1901-1964 shall apply to orders made by the Tribunal in like manner as they apply to regulations.

(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.

(6) A direction given orally shall be given to the person required to comply with the direction and thereupon that person shall comply with the direction.

(7) Where a direction is given orally, the Tribunal shall, within 24 hours thereafter, record the direction 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."

The section was, apart from procedural and formal amendments, in that form in 1970, the main difference being that "Board" appeared where "Tribunal" now does. The Tribunal did not, so far as concerns this case, exercise its powers to make orders or give directions.

The scheme of the Act, so far as it concerns control of advertisements by the Tribunal, is as follows:

(1) The Tribunal is given functions in s.16: those in paras (d) and (e), have already been set out.

(2) Power to carry out its functions under the Act is given by sub-secn.17(1), subject to the sub-sections which follow it.

(3) The Tribunal is given wide powers to grant and renew licences (s.81), although the manner of exercise of the powers is closely regulated. Conditions can be attached to licences, and undertakings are required that conditions be complied with.

(4) Conditions can be varied during the currency of a licence (s.85).

(5) The Tribunal has wide powers of suspension and revocation of licences, although their exercise is again closely regulated (s.88).

(6) In sub-secns. 99(1) and 100(4) duties are cast on licences:

"99, (1) A licensee shall provide programs and shall supervise the broadcasting or televising of programs from his station in such manner as to ensure, as far as practicable, that the programs are in accordance with standards determined by the Tribunal."

"100.(4) A licensee shall comply with such standards as the Tribunal determines in relation to the broadcasting or televising of advertisements."

(7) Section 101 deals with censorship.

Division 3 of Part II of the Act, commencing with s.18, deals with Inquiries which the Tribunal may conduct. Sub-section 18(1) is as follows:

"18.(1) Before taking action under this Act in relation to any matter, the Tribunal may if it thinks fit, and shall if this Act so provides, hold an inquiry in accordance with this Division into that matter."

I have included the references to powers respecting "programs" because it seems to me that "advertisements" are in general comprised in this term. This conclusion, which accords with a submission for the Tribunal, is partly based on practical considerations. There is a high degree of inter-connection between the two. As an illustration, Part One of the Standards, under the heading "Programme Standards and Procedures" contains several references to advertisements (see sub-para. 27(g); paras 30, 31, 33). It also seems to me to be the way the Act is intended to operate. There are many references to "programs" without separate reference to "advertisements" although the intention would seem to be to include the latter (see, for example, sub-para. 83(5) (b) (ii), paras 92A(2) (a) and (b) and 90D(2) (a), secns. 97, 105AB, 105R, 114, 124A and 130A). The conclusion also finds support in the usage of earlier legislation. Regulation No. 101 of 1924, which was expressed to give power to broadcast advertisements, drew a distinction between advertisements and "regular programs". Paragraph 6K(2) (b) of the Australian Broadcasting Act 1948 referred to advertisements being broadcast in a program.

Provisions concerning programs will often apply to the advertisements within them, but the latter have always had a degree of separate treatment, and been the subject of provisions specifically related to them. What is specially provided for in relation to advertisements must of course prevail over inconsistent provisions relating to programs. In substance, advertisements are a sub-head of programs. This is the way they are set out in Division 5 of Part IV of the Act (secns. 99 et seq.).

So far as concerns control over programs, and advertisements, the Tribunal has two principal sources of power, that contained in s.17, and that contained in the licensing provisions. The functions in s.16 which I have set out, and the duties in sections 99 and 100, are indicative of powers that may be exercised, and they might, in the absence of the provisions granting power have themselves given rise to the implication of powers.

At the outset of his case, counsel for the appellant submitted that the learned judge had erred in looking at the power concerning standards, when he should have referred to the "power" concerning conditions, in para. 16(1) (e). If it had been possible to regard the documents as determining "conditions" a question would have arisen whether the appellant's case had thereby been advanced, but in my view the requirements in those documents should be taken to be what they claim to be. It is indeed a problem with the documents, and a possible general criticism of them, that they are, terminologically at least, a hotchpot. The language is sometimes peremptory, sometimes precatory, and often explanatory or historical. They are discursive. They nevertheless quite clearly purport to establish "standards", and not "conditions".

In ordinary usage, a standard can be made a condition, or part of a condition, if it is apparent that that result is intended. A standard remains such, and it is only by some added circumstance that it becomes a condition. It seems reasonably clear that the Act requires, in the end, a separate classification, and for its purposes the two words have distinct meanings and point to distinct functions. This, plainly, has been the approach adopted by the Tribunal, and its predecessor, the Board. In Herald-Sun T.V. Pty. Limited v. Australian Broadcasting Tribunal (21 May, 1985) the High Court applied in relation to the sections presently under consideration the meaning given to "standard" in the Shorter Oxford English Dictionary:

"A definite level of excellence, attainment, wealth, or the like, or a definite degree of any quality, viewed as a prescribed object of endeavour or as the measure of what is adequate for some purpose."

Sub-section 99(1) reflects a not uncommon meaning of "standards", as constituting aims or guidelines, when, in relation to programs, it requires compliance "so far as practicable". In relation to advertisements (sub-secn. 100 (4)) a more strict compliance is required, and this suggests that a greater clarity and precision of expression is necessary than might otherwise have been adequate. The purpose is that the Tribunal be able to establish policies respecting these matters. It is enabled to do so by means which in nature approach the legislative.

The Board in 1970 intended to set out standards (albeit with added references to legislation, and explanatory material), and doubtless believed that it was doing so with reference to sub-secn. 100(4). There was not at the time any function or power in specific terms to determine standards, in relation to programs, or advertisements, such as is now found in para 16(1) (d). Probably, one or other of the functions of the Board, as then set out in sub-secn.16(1), although expressed in wide and general terms, was regarded as supporting what was done. There was in para. 16(3) (d) an express power to determine "conditions" subject to which advertisements could be televised. That paragraph, with the rest of s. 16, was repealed in 1976, and has not been re-enacted. After 1977, the Act had a greater degree of symmetry than previously. I do not find any sure guidance in the interpretation of the present legislation from the presence of para. 16(3) (d) before 1976.

The Acts of 1976 and 1977 emphasised that the powers to determine standards were limited to the purposes stated in the functions of the Tribunal. The relevant function is now to be found in para. 16(1) (d). It is limited by reference to purpose, a purpose which corresponds with that expressed in sub-secn. 100(4).

What is critical, is the way a recipient of the documents (taking them together) would have seen the matter. There can be little doubt that it would have thought they were intended to provide standards, in the ordinary sense of that word, which is the statutory sense, and would have related them, so far as concerned advertisements, to its duty under sub-secn. 100(4).

In these circumstances, it is not open to the Tribunal to seek to justify its "standards" by reference to the function and power respecting "conditions". To do so would not only be unfair and unreasonable, but would tend to undermine the efficacy of the prescription itself. The Chief Judge, in his reasons, has referred to United States authority touching on the matter and I agree with its present relevance. There may of course be cases where a change from reliance on one provision, stated by an administrative body as authority for its act, to reliance on another may patently be quite immaterial but otherwise the change cannot be made.

It is not open to the Tribunal to proceed on the footing that the inquiry to which its notice refers relates to "conditions", and it is also precluded from claiming that what it has asserted as standards are to be regarded as conditions, or supported under its power to determine conditions. In saying this, I do not wish to imply that if the standards were to be regarded, and treated, as conditions, the power would extend to support the validity of what has been done, so far as relevant here.

It is reasonably clear that quite a portion of what is set out in the document T.10 does not constitute "standards", as that term has been construed by the High Court. Applying a similar test, before the High Court decision, this was the view of Beaumont J. at first instance in this case and I respectfully agree with his conclusion. Paragraph 3 of the document under the heading "Test Market Campaign" (which I have set out) would seem to offend the decision in the Herald-Sun T.V. case, in so far as it requires application to the Tribunal for consideration of individual cases.

Apart from the consideration just mentioned, there is the question of relevance to the head of power. The relevant phrase is "standards . . . in relation to the . . . televising of advertisements".

The purpose of this particular power, as I see it, is to enable the Tribunal to establish firm guidelines concerning what is or is not to be shown on television having due regard to the acceptability of the presentation and its impact on viewers. The standard as determined may of course have to touch directly on some matters immediately antecedent to presentation. The power under consideration was not however intended to give a general control over the commercial or industrial activities of licensees. Just how far the Tribunal can go cannot be stated in the abstract. One notes in passing that it was thought desirable, if not necessary, to give it, separately, the function of determining hours of telecasting (para. 16(1) (f); s. 97).

The Standards, including the letter T.10, can be said, in a phrase, to determine minimum Australian (including New Zealand) content, but this exercise intrudes upon matters of employment and industrial relations, and of international politics. To take one example, para. 2 of T.10 is as follows:

"2. Film Footage obtained overseas by Australian Crews

The following rules apply in cases where more than 20 per cent of material filmed overseas is to be included in an Australian produced advertisement:-

(i) An Australian production crew must be sent overseas to obtain the footage. This should consist of not less than one professional film director, one professional cameraman and one other professional in a category determined by the type of production involved. All three must be employed by a recognised film production company or unit. Others in the party (for example advertising agency personnel) will not be counted as part of the required complement of three.

(ii) If artists or models are to figure prominently in the advertisement then, provided employment conditions in the overseas country permit, at least one Australian resident professional should accompany the production crew for this purpose."

The exception in favour of New Zealand (para. 4) implements an overseas trade agreement.

The emphasis is on production, in Australia, or New Zealand, and by Australians, or by New Zealanders.

There is no apparent connection between these matters and "standards in relation to the televising of advertisements", and no attempt has been made by evidence to show any.

Sub-paragraph 83(5) (b) (ii) deals with the grant of licences, and requires an undertaking, among others, "to encourage the provision of programs wholly or substantially produced in Australia and use, and encourage the use of, Australian creative resources in and in connection with the provision of programs." The fact that this provision appears in the legislation (see also s. 114) does not assist an argument that the Tribunal can determine a standard to similar effect; rather the contrary. It is not as if the Tribunal is here exercising a power delegated, under or by reference to the provisions mentioned.

I agree with the learned judge that the matters in question travel outside the scope of the power which was exercised, with the result that the determinations are ultra vires and void. It follows that the sub-stratum for the inquiry is absent, and that the desired decisions cannot properly be made.

The appellant submits that the orders made by his Honour are too wide, in particular that they should not extend to quashing para. 39 and the circular letter No. T.10. The fact is that the directions or requirements contained in those documents are ultra vires. It is a feature of the administration of public law in this and other countries that conclusive challenges to ultra vires acts or legislation are commonly made by individual litigants, whether or not they hold public office. The effect of what I have found is that the requirements relied upon are invalid.

The challenge in this case under the Administrative Decisions (Judicial Review) Act is to the conduct leading up to the proposed inquiry and the decisions sought therein. In strictness, therefore, the relief should relate to the decisions to which the conduct is directed, or the conduct itself. In my view it is sufficient to declare that the alleged standards are void, that the proposed inquiry cannot validly be held, and for an injunction to go prohibiting further actions directed to holding it.

I would dismiss the appeal with costs. I agree with the orders proposed by the Chief Judge.

JUDGE3

The facts relevant to this matter are set out in the reasons for judgment of Fox J and need not be repeated. The critical questions for determination are the validity in law of para 39 of the Television Programme Standards and the validity of the "rules" contained in a circular letter issued by the respondent on 11 July 1978 -- as amended on 5 May 1981 -- which is known as T.10. The appellants assert, and the respondent denies, that each of these provisions constitute "standards" to be observed by television licensees in respect of the televising of programs or, alternatively, "conditions" subject to which advertisements may be televised by licensees.

Paragraph 39 is contained in a document entitled "Television Programme Standards" which was published by the Australian Broadcasting Control Board in 1970. At that time the Broadcasting and Television Act 1942 conferred on that Board wide functions and powers in relation to broadcasting and television. The functions included "to ensure that adequate and comprehensive programmes are provided by commercial broadcasting stations and commercial television stations to serve the best interests of the general public": see s.16(1)(c). The powers conferred on the Board included the power to determine various things, including "the conditions subject to which advertisements may be broadcast or televised by licensees": see s.16(3)(d). In exercising its functions and powers under s.16, in relation to commercial television stations, the Board was required to consult with representatives of those stations: see s.16(4). For the purpose of exercising its powers and functions under the Act, the Board was empowered, inter alia, to "make such orders, give such directions and do all such other things as it thinks fit": see s.17(1). Section 17(2) -- (8) set out procedural requirements in relation to both orders and directions. Those provisions are not presently relevant. For the reasons given by Bowen CJ. neither para 39 nor circular T10 constitutes either an order or a direction.

Section 99(1) of the Act at that time required a licensee to "provide programmes and (to) supervise the broadcasting or televising of programmes from his station in such manner as to ensure, as far as practicable, that the programmes are in accordance with standards determined by the Board". Section 100(4) required licensees to 'comply with such standards as the Board determines in relation to the broadcasting or televising of advertisements'.

By the Broadcasting and Television Amendment Act (No 2) 1976 the Board was abolished. There was created, in its place, the Australian Broadcasting Tribunal, the first appellant before us. The amending Act substituted a new s.16 which conferred upon the Tribunal, inter alia, functions "to determine the standards to be observed by licensees in respect of the broadcasting or televising of programs" -- s.16(1)(a) -- and "to determine the conditions subject to which advertisements may be broadcast or televised by licensees" -- s.16(1)(b). In performing each of these functions, in relation to broadcasting or television stations, the Tribunal was required to consult the Broadcasting Council or, if there was no Broadcasting Council, representatives of those stations: s.16(2). The previous provisions of s.17 were retained, save for the substitution of references to the Tribunal in place of references to the Board. Similar substitutions were effected in ss. 99 and 100, but otherwise they were unchanged. Section 18 of the amending Act, which made transitional provisions, included a savings sub-section:

"18(11) Any act or thing done by the Board under a provision of the Principal Act before the commencing day has effect on and after that day as if it has been done by . . . the Tribunal . . . under the corresponding provision of the Principal Act as amended by this Act."

This is not a validating provision but it maintains in effect an act lawfully done by the Board before its abolition provided that, after the commencement of the amendments, the Tribunal had a corresponding power.

By the Broadcasting and Television Amendment Act 1977 a new section 16 was substituted. It included additional functions in s.16(1). Paragraphs (a) and (b), as they were in the 1976 version, became paras. (d) and (e) respectively of s.16(1) but their wording was unchanged. Section 16(2) was amended to pick up the changed paragraph references.

It is useful to consider the legal effect of para 39 at the time of its promulgation in 1970. Although s.99(1) required a licensee to ensure, as far as practicable, that his programs were "in accordance with standards determined by the Board", the Board did not, at that time, have the express function or power of determining "standards". It did have the function, under s.16(1)(c), of ensuring that "adequate and comprehensive programmes" were provided by commercial television stations. Instructions given in the performance of that function might reasonably be described as "standards". It, therefore, seems reasonable to read the reference in s.99(1) to "standards" as being a reference to such instructions; the more especially because the Act vested in the Board no other function or power the exercise of which could be described as the determination of standards and because both s.16(1)(c) and s.99(1) were concerned with the provision of "programmes".

In framing s.16(1)(c) Parliament might have had in mind the possibility that the Board would think fit to give a highly specific instruction in aid of the objective of ensuring adequate and comprehensive programs, for example that an evening news service be provided or for a particular maximum number of hours per week of imported film material. However, Parliament may also have contemplated the possibility of more general instructions, for example to use more Australian films or to cover a wider range of sporting activities. In relation to the latter type of instructions, particularly, considerations of practicality might arise. This may explain the qualification "as far as practicable" in s.99(1).

When one turns to s.100(4) different considerations arise. It is more difficult to read the word "standards", where there appearing, as being a reference to instructions under s.16(1)(c). This is not only because of the difference in terminology: 'programmes' in s.16(1)(c) as against 'advertisements' in s.100(4). The function referred to in s.16(1)(c) is a positive one: ensuring the provision of adequate and comprehensive programs to serve the best interests of the public. The Board, on the public behalf, had an interest in taking steps -- if necessary -- to ensure that licensees transmitted programs of adequate quantity, quality and diversity. Subject to matters of practicality, it could insist upon those programs being obtained. However, the Board would have no interest, or ability, to generate advertisements. Its interest would merely be to regulate, in such manner as it might consider desirable in the public interest, the showing of advertisements. The function which is correlative to the duty imposed by s.100(4) must be sought elsewhere than in s.16(1)(c).

It seems to me that the correlative of s.100(4), in 1970, was the provision in s.16(3)(d) conferring power upon the Board to determine the conditions subject to which advertisements might be televised by licensees. The word "conditions" is apt to refer to specific rules capable of precise compliance, and intended to be fully and precisely performed. Significantly, s.100(4) -- unlike s.99(1) -- had no qualification of practicality. The subsection was framed in unqualified, mandatory terms: "(a) licensee shall comply with such standards as the Board determines in relation to the . . . televising of advertisements".

The language of s.100(4) indicates an intention to impose a general and continuing obligation to comply with the current rules ("standards") determined by the Board; and there are a number of indications that the power conferred by s.16(3)(d) -- as it stood in 1970 -- was intended to enable the Board to make rules of general application in relation to advertisements. Firstly, in making such a determination, the Board was required to consult representatives of commercial television stations. Had it been intended that a determination under the paragraph would be particular to a single station the more appropriate requirement would have been to consult with the particular licensee. Secondly, the only alternative to reading 'conditions' in s.16(3)(d) as referring to rules of general application enforceable by virtue of s.100(4) is to read 'conditions' as referring to conditions to be imposed upon a particular licence. But, at that time, the scheme of the Act was for the Minister -- and not for the Board -- to determine whether, and if so on what particular conditions, a commercial television licence should be granted (s.81) or renewed (ss.80, 81). It would be contrary to the then division of power -- which was fundamental to the Act -- to read s.16(3)(d) as having permitted the Board to attach particular conditions in relation to advertisements to particular licences. The conclusion is inescapable that this paragraph was intended to achieve a different purpose: to authorise the Board to make rules of general application relative to the conditions under which advertisements might be televised. Further, and in the absence of any other source of the "standards" to which s.100(4) must be taken to refer, it seems to me that s.100(4) was intended to cast upon the licensee the duty to comply with such rules. It is curious that the word "standards" was used in s.100(4) -- "conditions" would have been more appropriate -- but to deny the correlation between the power given to the Board by s.16(3)(d) and the duty cast upon licensees by s.100(4) is to leave the power unenforceable and the stated duty non-existent.

The conclusion I have reached accords with that expressed in Austarama Television Pty Limited v Australian Broadcasting Control Board (1975) 27 FLR 291. In that case Anderson J had to consider the validity of a circular letter expressing "conditions" relating to the advertising on television of cigarettes and cigarette tobacco. At pp 295-296, his Honour said:

"Section 16(3)(d) is in Divn 2 of Pt II, and deals with the powers and functions of the defendant. Section 100 is in Divn 5 of Pt IV and deals with the obligations of the licensees of commercial television stations. Division 2 and Divn 5 and more particularly in the present case, s.16(3)(d) and s.100(4), are complementary to one another, s.16(3)(d) stipulating what the defendant is empowered to do, and s.100(4) imposing an obligation on the commercial television stations to observe the standards contained in the conditions prescribed for advertising by s.16(3)(d). If the restriction is within power, as I consider it to be, the corollary is that the plaintiff is bound by s.100(4) to comply with it."

The question then arises whether, applying my analysis, para 39, when first promulgated, had legal validity. The bulk of the matters dealt with by the "Television Programme Standards" may have been supported by s.16(1)(c). The document itself suggests that the Board saw this paragraph as the basis of that portion of it (Part One) which was entitled "Programme Standards and Procedures". But that paragraph could not have supported the section (Part Two) headed "Advertising Standards". The Board appears to have recognised that fact by its reference in the introductory paragraph of Part Two to s.100. Nonetheless the provisions of Part Two were intended to be of general application to all licensees and to lay down precise rules of behaviour. They might aptly have been called "conditions subject to which advertisements may be . . . televised by licensees".

The statement just made applies to para 39, which was formulated with precision. The paragraph has two aspects. The first sentence constitutes a command, addressed to all commercial television licensees: "All televised advertisements must be produced in Australia". The Board never, of course, had any direct jurisdiction over the production of material which, at some stage, might be proposed for showing on television. A producer could produce advertising film wherever he or she chose. But the Board did have jurisdiction over the transmission of material on Australian television. In the exercise of its power under s.16(3)(d) of the Act to determine the conditions subject to which advertisements might be televised by licensees it had the power to order that only those advertisements which had been produced in Australia should be televised. Such a limitation is, I think, the meaning properly to be attributed to the opening sentence of para 39: all advertisements which are to be televised must have been produced in Australia. The language is clumsy but the meaning is clear. The provision specifies a limitation, which may properly be called a condition, subject to which an advertisement might be televised, namely that it has been produced in Australia.

The second limb of para 39 specifies a further limitation upon acceptability for transmission. Advertisements transmitted on television, though produced in Australia, may contain not more than a maximum of 20% of pictorial matter which has been photographed, and a maximum of not more than 20% of sound which has been recorded, outside Australia provided that such pictorial matter may be included only if it portrays persons, places or events which cannot be photographed in Australia and such sound may be included only if it consists of the voices of persons or the sounds associated with places or events which cannot be recorded or created in Australia. Alternatively, an advertisement may include pictures or sounds which have been obtained by Australians who journeyed overseas for that purpose or, in the case of sounds, which consist merely of recorded background music. Impliedly, though not expressly, an advertisement which fails to meet these criteria is not to be transmitted on Australian television. Once again, properly understood, the language is that of an order specifying conditions.

Does it matter, then, that the Board chose to call para 39 a "standard" rather than a "condition"? I do not think so. I have already referred to the confusion of terminology in the Act itself. The limitation on action which - - seen in terms of the Board's function under s.16(3)(d) - - was a "condition" was - - in terms of the licensee's duty to comply under s.100(4) - - a "standard". It is understandable that, in a document addressed to licensees, the latter term should have been chosen.

It follows from the correlation between the power under s.16(3)(d) - - and at a later stage 16(1)(e) - - and the duty under s.100(4) that there is not here a situation in which the Tribunal seeks to rely upon a power other than the one expressly specified when its decision was made. Under those circumstances, it is not necessary to resort to what Fullagar J., in Lockwood v Commonwealth (1954) 90 C.L.R. 177 at p.184, called the "settled principle that an act purporting to be done under one statutory power may be supported under another statutory power". But, had it been necessary to do so, it seems to me that the principle would have applied to this case. No doubt there exist exceptions to that principle. One exception is the case where the exercise of the alternative power depends upon the fulfillment of some condition precedent, such as the formation by the statutory authority of a particular opinion, and that event has not yet occurred: see, for example, the decision of the United States Supreme Court in Securities and Exchange Commission v Chenery Corporation (1943) 318 U.S. 80, (1947) 332 U.S. 194. There is, in the present case, no question of the non-fulfillment of a condition precedent. Although I am not aware of any case in which it has been applied, I am of the view that another exception ought to be the case where a decision to uphold the validity of the action by reference to the alternative ground may conceivably visit upon persons affected by the action consequences different from those which would have applied had the original power been upheld. People who have conducted their affairs upon the basis that a particular power, with particular consequences, has been invoked by a statutory authority should not be confronted with a finding that the action of the statutory authority was valid for a different reason, involving different consequences. Applied to the facts of this case, if, in 1970, the description by the Board of the requirements of para 39 as a 'standard' could have had the effect of misleading licensees as to their nature or effect, it would be inappropriate to uphold the validity of that paragraph, as at 1970, by reference to the power of the Board to determine "conditions" under s.16(3)(d). However, that is not this case. Section 100(4) required compliance by a licensee with a "standard" relating to advertisements; and para 36 of the document, which commenced Part Two, set out that sub-section. I respectfully agree with Fox J. that licensee recipients of para.39 would have related its requirements to their duty under s.100(4). Such licencees must be taken to have known that any failure to comply with that section would constitute an offence under s.132. The non-compliance would not have been a contravention of a condition of a licence but non-compliance would have been relevant in relation to renewal of the licence - - s.85 - - and might possibly have furnished a ground for its suspension or revocation - - s.86(1)(c). There existed no unexpected or more disadvantageous consequence, from a licensee's point of view, in saying that the command was in law a "condition" rather than, as it was called, a "standard". No injustice would have been done to the licensee by looking at the substance of the matter and enquiring whether the command, under whichever of the two names might have been chosen, was within power. In my view para 39, when first issued, was a valid exercise of power under s.16(3)(d), creating a duty of compliance under s.100(4).

The next matter for consideration is the effect of the 1976 amendments. The substituted s.16 included a new paragraph - - the then s.16(1)(a) - - empowering the Tribunal to determine "standards." This power was additional to the respect of advertisements. I doubt that para (a) relevantly augmented the Tribunal's power in relation to a prescription such as para 39. I think that it was intended to substitute for the old s.16(1)(c), maintaining a correlation with s.99(1) which was, in substance, unchanged. But certainly nothing in the amendments to ss. 16 and 17 diminished the power, in relation to advertisements, which the Board had formerly enjoyed. Nor did the amendments affect the correlation - - if it had previously existed - - between the new s.16(1)(b) and s.100(4). Similarly, nothing in the amendments affected the consequences of non-compliance; licensees remained subject to the sanctions attendant upon treating s.100(4) as applicable.

I have noted that the Act, as framed in 1970, provided for the Minister, not the Board, to determine the conditions to be attached to a licence. That situation was changed in 1976. Section 81 was amended to confer upon the Tribunal the power to grant or renew a licence, and to determine the conditions of that licence; but in the absence of any amendment to the wording of the old s.16(3)(d) - - now s.16(1)(b) - - that amendment could not affect its proper interpretation. The Tribunal, in 1976, merely acquired a new power, to affix conditions - - not limited to advertising - - to a licence, in addition to its previous power to regulate generally the conditions to be observed by all licensees in respect of advertising. The effect of s.18(11) of the amending Act was that what had validly been done by the Board continued to have effect as if done by the Tribunal under the same power as that exercised by the Board. That situation was maintained after the 1977 amendments which, relevantly, merely renumbered the paragraphs.

The Tribunal has not repealed para 39. It has, from time to time, amended the Television Programme Standards but not, in terms, para 39. That paragraph continues in full force and effect subject only to such implied amendments as may validly have been made by the Tribunal. The only document which, arguably, impliedly amends para 39 is the circular letter T10 which was first issued - - by the Tribunal not the Board - - on 11 July 1978.

The respondent contends that circular letter T10 is invalid for either of two reasons: because it is beyond power or because it is uncertain. I confess to some difficulty in understanding how that contention assists the respondent, or anyone in its position. If the circular is legally invalid, para 39 stands unaffected by it; except perhaps in relation to the cases covered by paras 4 and 8 of the circular - - New Zealand advertisements and Community Service Announcements - - in respect of which the Tribunal, whether validly or otherwise, has evinced an intention to abandon the limitations imposed by para 39.

However that may be, the argument of invalidity has been put and should be considered. The first contention, that circular T10 is beyond power, raises the same question in relation to the Tribunal as that already considered by me in relation to the Board. For the reasons I have expressed, I am of the opinion that the circular is within power, under s.16(1)(e) of the Act, provided that its contents may properly be described as specifying conditions, and therefore "standards", within the meaning of s.100(4). I think that they can. The document itself, correctly in my view, describes its contents as "rules"; an apt synonym for conditions of general application. (This is itself of some significance in relation to the validity of para 39. Circular T10 republishes the requirements of para 39 as "rules" rather than "standards" so that the arguments stemming from nomenclature - - if they had previously been valid - - lost their force upon the publication of this document). Clause 1 of the circular simply re-states the effect of the old para 39. Clause 2 specifies the composition of an Australian production crew sent overseas. Clauses 3 and 5 qualify the operation of cl. 1, the qualifications depending upon the exercise of a discretion by the Tribunal in relation to specified facts. Clauses 4 and 8 qualify, in absolute terms, the operation of cl. 1, in relation to the cases referred to in those clauses. It is true that, in terms, cl. 2 of the circular deals with the circumstances of production of advertisements - - cll. 3 to 8 deal with transmission - - but cl. 2, like the second limb of para 39 itself, is a specification of conditions of production which must have been met in order to qualify a particular advertisement for transmission. It may aptly be described as a condition subject to which the advertisements to which it has application may be televised.

The second basis of invalidity argued by the respondent is that some of the provisions of circular T10 are uncertain. There is a question whether any such uncertainty would result in legal invalidity. In Television Corporation Limited v The Commonwealth (1963) 109 CLR 59 AT p 69 Kitto J held that "reasonable certainty of meaning and application" was a requisite of the legal validity of conditions which might be attached to a licence under the Act by the Minister. Menzies J, at p 83, held that, provided that the condition be "so expressed that it can be ascertained whether or not it is bona fide for the purposes of the Act and consistent with law", considerations of uncertainty of operation were "beyond the concern of a court of law in determining the validity of what is, in truth, delegated legislation". The remaining members of the High Court, Taylor, Windeyer and Owen JJ, at p 75, found it unnecessary to deal with the matter, holding the conditions invalid because they were beyond power. Like their Honours, I find it unnecessary to venture into the tangled thicket of case law relating to the effect of uncertainty upon the validity of delegated legislation: see Sykes, Lanham and Tracey "General Principles of Administrative Law" (2nd edition) paras (1203) - (1213), Pearce "Delegated Legislation" Chapter 24. I have reached the conclusion that the contents of circular T10 are not uncertain, within the meaning of that term in this area of the law; that is to say as failing to provide "adequate information as to the duties of those who are to obey" - - per Williams J in Brunswick Corporation v Stewart (1941) 65 CLR 88 at p 99.

In arguing uncertainty, counsel for the respondent referred to the reference in cl. 2(i) of the circular to "one other professional in a category determined by the type of production involved". This passage is not uncertain, in the relevant sense. Its meaning is clear; the third crew member - - after the director and camerman - - must have expertise appropriate to the task in hand. In some cases he or she may be a sound recordist, in others a special effects person or a second or assistant cinematographer. The precise application of the requirement will vary according to the circumstances of the case. Its content is constant and clear. The same comment may be made about the similar provisions in cl. 7.

Counsel referred to words of degree: "recognised" in cl. 2(i) and "prominently" in cl. 2(ii). The intent is clear. The provisions contain adequate information as to meaning notwithstanding that a judgment is left to be made in respect of their application.

Criticism was made of the words in cl. 3 requiring, as a pre-condition to the relaxation of the conditions in respect of test market campaigns, submission of a prior application to the Tribunal. There is nothing uncertain in this requirement or, indeed, in the stated conditions of any relaxation which may be granted. The position is similar in relation to permission to use archival footage (cl. 5).

Clause 6 states that the Tribunal will consider "on their merits" applications to use more than 50% imported footage in advertisements for live appearances in Australia by overseas entertainers. No criteria are stated but this does not make the provision uncertain in the relevant sense. The duty of the licensee remains clear: not to use footage containing more than 50% overseas material unless and until approval is obtained.

I am of the opinion that no part of circular T10 is legally uncertain. Consequently, it is not necessary to consider whether, and to what extent, the impugned provisions should be severed from the remainder of the document.

It follows that both para 39 of the Television Programme Standards and the circular T10 are valid exercises of the power to determine conditions under s.16 creating a duty of compliance under s.100(4). Under those circumstances it is not necessary to determine whether the provisions, or any of them, may also be supported as expressing "standards" determined by the Tribunal under s.16(1)(d), as it now stands. In my opinion the appeals should be allowed, the orders made by the primary judge should be set aside and the Application for review should be dismissed. The respondent should pay the costs of the first appellant both in this Court and at first instance. There should be no order in respect of the costs either in this Court or at first instance of the second appellant, Actors Equity of Australia, which was joined as a party upon its own application during the hearing before the primary judge.

[1985] FCA 301

13 JUNE 1985