Australian Broadcasting Tribunal v Bond

[1988] FCA 431

CATCHWORDS

BROADCASTING AND

TELEVISION Tribunal - scheme of-the legislation - scope of “substantive	-	Australlan	Broadcasting
Tribunal	-	statutory provisions establishins functions of	.:’
I.

powers” of the Tribunal listed in S. 17A of the Broadcastin . .

i Act 1942 - power of Tribunal to vary or revoke con ltlons 4 F

E e n c e and to suspend or revoke a licence on specified grounds - whether inquiry was authorised by sub-s. 17C(1) of fhe Broadcasting Act-- whether the word “pkoposes“ in sub-s.

17C(I) required the Tribunal to form initial intention to

exercise substantive powers in order to have power to hold

inquiry - construction of sub-s. 17C(1) - scope of Tribunal’s powers to hold an inquiry under sub-s. 17C(3) of the

Broadcasting Act - other means of obtaining information

available to the Tribunal - legislative history of Tribunal‘s

inquiry power - whether Tribunal had properly formulated a

proposal	within	the	meaning	of	sub-s. 17C(1) of	the	I	.
I	’

Broadcasting Act.

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Administrative Decisions (Judicial Review) Act	1977
Broadcasting and Television Act	1942

Broadcasting Act 1942: ss. 17A, 17C(1), 17C(3), 85, 88

Australian Broadcasting Tribunal (Inquiries) Regulatlons

AUSTRALIAN BROADCASTING TRIBUNAL V ALAN BOND, BOND MEDIA

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LIMITED, BOND CORPORATION HOLDINGS LIMIl’ED, QUEENSLAND .. .

TELEVISION LIMITED, CONSOLIDATED BROADCASTING SYSTEM (W.A.)

PTY. LIMITED, NORTHWEST RADIO PTY. LIMITED and DARWIN

BROADCASTERS PTY. LIMITED

G1030 of 1988

COURT: LOCKHART, WILCOX and PINCUS JJ.

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10 AUGUST 1988

SYDNEY

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IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY	)	No. G1031 of 1988
)

DIVISION GENERAL )

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ON APPEAL FROM A SINGLE JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

BETWEEN :  AUSTRALIAN BROADCASTING TRIBUNAL

Appellant

- AND : ALAN BOND ..

first Respondent

BOND MEDIA LIMITED !

Second Respondent

BOND CORPORATION HOLDINGS LIMITED

Third,,Respondent

QUEENSLAND TELEVISION LIMITED

fourth Respondent

CONSOLIDATED BROADCASTING SYSTEM

7W.A.) PTY. LIMITED

Fifth Respondent

NORTHWEST MD10 PTY. LIMITED

Sixth Respondent

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DARWIN BROADCASTERS PTY. LIMITED

Seventh Respondent

JUDGES MAKING ORDER:	LOCKHART, WILCOX AND PINCUS	JJ.
DATE ORDER MADE:	10 AUGUST 1988
WHERE ORDER MADE:	SYDNEY

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MINUTE OF ORDER

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THE COURT ORDERS THAT:

1.    The appeal be allowed.

2 . The declaration and the order no. 3 made by the trial

Judge on 10 June 1988 be set aside.

3 .    The matter be remitted to the trial Judge or other Judge

of this Court to determine the questions that remain in

the proceedlngs including the question of costs of the

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hearing before the trial Judge. * ” .’

4 . The respondents pay the costs of the appellant of the

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appeal.

- NOTE: Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules.

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IN THE FEDERAL COURT OF AUSTRALIA	)
1 .*
NEW SOUTH WALES DISTRICT REGISTRY	) NO. G1031 Of 1988
)

DIVISION GENERAL ) , r

ON APPEAL FROM A SINGLE JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

BETWEEN: AUSTRALIAN BROADCASTING TRIBUNAL

Appellant

- AND : ALAN BOND

First Respondent

BOND MEDIA LIMITED

Secold Respondent

BOND CORPORATION HOLDINGS LIMITED

i.

Third Respondent

QUEENSLAND TELEVISION LII4ITED

. .

Fourth Respondent I .

CONSOLIDATED BROADCASTING SYSTEM

(W.A.) PTY. LIMITED

Fifth Respondent

NORTHWEST RADIO PTY. LIMITED

Slxth Respondent

DARWIN BROADCASTERS PTY. LIMITED

Seventh Respondent

COURT :	LOCKHART, WILCOX AND PINCUS	JJ.
DATE :	10 AUGUST	1988

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PLACE : SYDNEY L '

REASONS FOR JUDGMENT

LOCKHART J.

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This appeal raises an lmportant question concerning the

powers of the Australian Broadcasting Tribunal ("the Tribunal") to hold inquiries under Dlvision 3 of Part 11	of
the Broadcasting Act	1942 ("the Act").
-	Facts

Companies with whlch Mr. Alan Bond is associated hold l.

a commercial television licence for Channel QTQ Brisbane.

They also hold several commercial radio licences. Mr. Bond i '

and his before this Court at companies were the appllcants in the proceedings

first instance and are'the respondents i

to this appeal.

l At a meeting of the Tribunal held on 5 February 1988 the

Tribunal decided to hold an Inquiry into the issues raised by

certain material that had come before it relating to the

payment of $400,000 in settlement of a defamation action by

Sir Joh Bjelke-Petersen against Queensland Television Limited

(one of the respondent companies). The terms of the relevant
item in the minutes of the Tribunal of its meeting on	5
February 1988 are as follows:

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"The Tribunal consldered correspondence from	the
Hon. N G Warburton, MLA, Leader of the Opposltion,	!
Queensland, dated 29 January 1988; Mr. Christopher Warren, Federal Secretary, Australian Journalists Association dated 29 January 1988; and MS Julia Hall, solicitor for the Public Interest Advocacy
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Centre dated 4	February 1988 concerning recent

! comments made by Mr Alan Bond in an interview with

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MS Jana Wendt from the program 'A Current Affair'

in relation to a defamation settlement to the

Premier of Queensland by Bond Corporation Ltd. It

had been alleged that Mr Bond's comments were

inconsistent with the evidence he gave at the QTQ

licence renewal Inquiry in 1986.

Prior to this meeting, the Trlbunal had sought,
and received, from the licensee of TCN, copies of
an unedited tape of the interview and a tape of a
promotion relating to the program. The Tribunal
examined the tapes and also the transcript of the

QTQ licence renewal hearing.

The Tribunal noted that decisions were outstanding

in two inquiries involving licences controlled by

Mr Bond's companies: Bond Media share

transactions involving the acquisition of

commercial television services TCN and GTV	and
commercial radio services 2UE, 3AK, 6PM, 6AM,	6GE

and 6KG from interests associated with Hr Kerry Packer, and the rearrangement of interests within

the Bond Media group of companies involving

commercial television services QTQ and STW and

commercial radio services 6KA. 6NW and 8DN: and

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renewal of the licence for	STW.
Tribunal decided that:

based on the material before it, an inquiry

should be held to investigate the matter;

the matter should be considered by the I .

Tribunal and	not	by	a Division	of	the	' _
Tribunal;	!
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counsel assisting should be engaged who

should be involved in the formulation of the

issues to be considered in the inquiry noting

that a notice under Regulation 9(2)(b) needs

to be published within 28 days from the

decision to initiate the inquiry;

Bond Media should be informed Immediately of

the decision to conduct an inquiry; and

a news release should be issued indicating

that the Tribunal will be conducting an

inquiry (copy to be provided to Bond Media).

The Tribunal directed the Legislation Section to

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urgently seek, through the office of the

Australian Government Solicitor, the services of counsel to assist in the inquiry, to inform Bond Media of the inquiry and to supervise the Issuance of an appropriate news release.

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The Tribunal further directed the Acting Director,

Llcenslng	DlvlS1on,	to
take the necessary

administrative action to commence the Inquiry, to

consider the resources implications, and to

develop a strategy for the conduct of the

inquiry."

On Holdings Ltd., one 5 February 1988 the Tribunal wrote to Bond Media

of the Bond companies, stating that it had

examined and considered an unedited tape of the interview

given by Mr. Bond on the programme "A Current Affair" on 22

January 1988; transcript of the QTQ-9 licence renewal (held that the Tribunal had also examined the

in Brisbane in

1987); and that the Tribunal had decided to hold an inquiry into the issues ralsed. The letter indicated that the issues for the lnquiry were being settled and would be forwarded to

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the company when finalised. The letter enclosed a copy	of a
news release of the Tribunal	in relatlon to the matter, which

contained in essence the same statements as did the letter.

On 2 March 1988 the Trlbunal issued a notice of inquiry

pursuant to regulation 9 of the Australian Broadcasting

Tribunal (Inquiries) Regulatlons ("the regulations"). The

notice stated that the Tribunal had commenced	an inquiry into
lssues relating to various radio and television licences
owned by companles associated with	Mr. Bond; that the Inquiry

followed the Tribunal's vlewing of the unedited tape of the

interview glven by Mr. Bond on "A Current Affair" on 22

January 1988; and that the Tribunal had also examlned the transcript of the last QTQ-9 renewal. The notice continued:

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“The issues which will be addressed during the

inquiry are as follows:

1.    Whether anything connected with the payment

of $400,000 in settlement of a defamation

action by Slr Joh Bjelke-Petersen agarnst

Queensland Television Limrted has any

rmpllcations as to the suitability of

companies assoclated with MC Alan Bond to

hold the above broadcasting licences. In

this context it will be consldered whether Mr

Bond and companies assocrated with him are

flt and proper persons to hold the above

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licences.

2.	Whether it would be advisable	in the public
interest for the Tribunal to	do any of the
following:

(a) suspend any of the said licences I

assoclated wrth Mr. Bond;

(b)	revoke any of the said licences;
(c) impose or vary conditions on any of	the

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licences. sald b b

3 .	Such other matters relevant to the inquiry	as
the Tribunal sees fit.

The Notice then listed the other televlsion and radio

licences owned by companies associated wrth Mr. Bond,

indicated that persons wishing to make a submission in

relation to the issues to be considered	in the inquiry might
do so by 13 April 1988 and might inspect the relevant inquiry
file at offices of the Tribunal In various capital clties.	.I
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Between 5 February 1988 and about 2 5 May 1988 a battery

of correspondence passed between the solicitors for the

I respondents on the one hand and the Tribunal and its

solicitors on the other. It is necessary to refer to only a

small amount of that correspondence.

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On 11 Aprll 1988 wrltten submissions as to the scope of

the inquiry, the Issues to be consldered in the inqulry, and

the nature of the decislon requested by the respondents as to

the outcome of the inqulry were delivered to the Tribunal by

the solicitors for the respondents. Those submissions

Indicated that the respondents were aware that the inquiry

was an "ordinary" inquiry under S. 17C of the Act. The

submissions referred to the Issues as set out in the notice

and said:

"The present inquiry can only relate to the

exercise of the Tribunal's substantlve	powers
under	section 85 (conditions) or section 88

(suspension or revocation). It is respectfully

submitted that the Tribunal does not have the

power to consider 'the suitabllity of. companies

associated with MC Alan Bond' to hold t'he various

licences other than	in the	context of those two
provisions.''
The submlssions went	on to	set out the text of para.

88(l)(a) of revocation of licenses where the Tribunal is satisfied the Act, relating to the suspension and

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that

the licensee has failed to comply with an undertaking given

in relation to the llcence; or that the licensee is no longer

a fit and proper person to hold the licence or no longer has

the financial, technnlcal necessary to provide an adequate service; and management capabllltles

or that a condltlon

of the llcence has not been complied wlth.

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A little later in the submissions the following appears:

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"The present inquiry thus relates to whether, in

the 'context' set out in the notlce	of inquiry,
the respective llcensees are no longer fit and	'.

proper persons to hold the licences or no longer r n

have the management capabillties necessary to

provide an adequate and comprehensive service

pursuant to the respective licences." [emphasis in

original]

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The transcript of the interview relating to the settlement	submission	then	argued	that	nothing	in	the	:. ,
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of the

defamation proceedings or in the transcript of the QTQ-9

renewal cast any doubt on the continued fitness and propriety

of the licensees or on their abilities to provide an adequate

and comprehensive service pursuant to the licences. . The i ,

submission concluded with a request by the respondents that

the Tribunal decide not to vary the conditions of the

licences, not to Impose any	new conditions aqd not to suspend	. .
or revoke any of	the llcences.	i '
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By letter of 14 April 1988 from the respondents'

solicitors to the Australian Government Solicitor, acting for the Tribunal, it was said that the respondents were placed in

a very	difficult	position	as they	had	been	glven	no
particulars of	the	matters	to	be raised	other	than	the

references in the notice of the inqulry. The solicitors

sought to be given certaln further and better partlculars	of
matters to be raised in the inquiry.

By letter of 5 May 1988 the sollcitors for the

respondents again sought to be provided with full particulars

of the issues sought to be raised in the inquiry. The

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Australian Government Solicitor wrote on 5	May 1988 to the
solicitors for the	respondents indicating that the Tribunal
had not yet concluded its investlgations preliminary to	the

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public inquiry,	but setting out	the issues which counsel	L :
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assisting the Tribunal "currently perceives to arise within	I
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the issues nominated by the Notice of Inquiry". There are

then set out fifteen lssues in these terms:

" 1 - Mr. Bond's be1 ief as to the truth or

substantial truth of	the story broadcast on 2
bases of that belief.
February 1983 on QTQ 9	, Brisbane, and the basis or

2 . Whether there were facts concerning the truth

of the story of which Mr. Alan Bond was unaware and whether Mr. Bond took reasonable steps to

acqualnt himself with those	facts.
3. Whether the defamation actlon instituted	by

Sir Joh Bjelke-Petersen in c0nsequenc.e of that

story was being actively prosecuted by him prior

to the acquisitlon of QTL by a company associated

with Mr. Bond.

4 . The advice possessed by QTL and its defamation insurers as to prospects of success and/or extent

of potentlal damages in relation to the defamation

action.

5. The nature of the conversations between Sir

Joh Bjelke-Petersen and Mr. Bond, or persons associated with Mr. Bond, touching upon the defamation writ.

6. Whether those conversations amounted to a

demand by Sir Joh for settlement of the defamation
writ having regard to factors other than the legal
merits of the defamation action.

7 .   The circumstances of Sir Edward Lyons' and Mr.

Peter Gallagher's appointment to the QTL Board.

8. Slr Edward Lyons' disclosure to the ATL Board

of hrs knowledge of, and involvement in, the facts

which contrlbuted broadcast on 2 February 1983. the basis for the story

9. Sir Edward Lyons' purpose in raising the

subject of	the Bjelke-Petersen writ	on	the QTL
Board.

10. The advice taken by Mr. Bond as to the

appropriateness of the settlement reached with Sir

Joh Bjelke-Petersen.

11. The extent	of inquiry made	by Mr. Bond into
the likely level	of damages were	QTL to fail in

its defence of the defamation actron.

12. The sum paid by way of settlement of the

l	defamation action and the person who paid that
sum. , . '

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13. The extent to which QTL Board members were

kept aware of the settlement negotiations and

!	their outcome.
14. The meaning to be ascrlbed to Mr. Bond's
remarks made to Ms. Jana Wendt, particularly in
relation to evidence given by Mr. Bond before the
Tribunal in 1986.
15. The circumstances in which the programme,
which had originally broadcast the story on 2 February 1983, was terminated by QTQ management."

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The letter stated:

"You will appreciate the abovementioned issues

cannot be regarded as finally delimitlng the scope

of the inquiry and that further relevant issues

might arise in light of evidence given at the

hearing or information provided by the Tribunal."

The solicitors for the respondents wrote on 6 May 1988

to the Australian Government Solicitor complaining that the

letter of 5 May did not give particulars of the case to be

met by the respondents, but merely listed fifteen topics about whlch evidence would presumably be given. Lists of

questions sent to	potential witnesses together with certaln
other information were	requested. The Australian Government

Solicitor replied by letter of 6 May 1988 noting that the

inquiry did not involve the presentation of a "case" against

the respondents, and saying, inter alia:

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"What the Inquiry will look at is whether in the

circumstances surrounding those events [the

settlement of the defamation action, earller evidence given to the Tribunal by Mr. Bond as to the settlement and comments to Ms. Jana Wendt in

relation the to settlement] particular a

conclusion should be drawn. In this regard

neither I nor counsel assisting the Tribunal have

any views whatever. "

By letter of 12 May 1988 the Australian Government Solicltor set out a revised list of issues, being sixteen In	!
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number, which are in substance the same a s those mentioned in	'

the earlier letter of 5 May. The additional issue to those

listed in the letter of 5 May related to the circumstances in

which a segment of an interview between Mr. Bond and Ms.

Wendt which had been	broadcast	as	a	promotion	for	the	I '
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programme "A Current- Affair" to be broadcas't on 22	January
1988 was not broadcast on that programme.

The inquiry commenced on 16 Hay and continued to 20 May.

On opening the inquiry, the Chairman of the Tribunal

announced that the Tribunal was conducting an inquiry

pursuant to S. 17C	of the Act and referred to the terms	of
the Notice of	Inquiry. Certain litigation took place with
reference to a	clam	for legal professlonal prlvilege for

documents before	the inquiry which delayed its proceeding
further; but, after that litigation	was determined on 23 May

the inqulry resumed on	2 4 May. By letter of	2 4 May 1988 from
the	respondents' solicitors to the Australian	Government

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Solicitor the request was repeated that the respondents be

provided wlth full particulars of each of the issues the

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i sublect of the inquiry and with particulars as to certain

specified matters. The letter sought that the particulars be

provided before Mr. Bond and witnesses associated with the

licensee companies gave evidence before the inquiry.

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By letter of 25 May 1988 from the Australian Government Solicitor to the respondents' solicitors i '

It was stated that

the issues remalned those set out in the Notice of Inqulry
and in the letter of 5 May subject to certain addltlonal
issues which it was said were perceived by counsel to have

emerged during the hearing before the Tribunal. All those

issues revolved round the payment of $400,000 to Slr Joh

Bjelke-Peterson and the evldence subsequently given to the

Tribunal in 1986 as to the circumstances of the settlement.

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It is unnecessary to enumerate those addlt!onal issues for

! present purposes.

May 1988 counsel for the respondents asked the Tribunal to direct counsel assisting the Tribunal to provide

On 26

the respondents with the particulars sought	in the letter of	.	.I
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24 May 1988 from the respondents' solicitors to the ..

Australian Government Sollcltor and to make certain other	dlrections. On 21 may 1988 the Tribunal ruled that it was
not appropriate to give the direction sought in relatlon to the provision of particulars. In the course of its reasons the Tribunal said:

"We have not formed any intent to exercise any	of
our substantial powers-under	the Broadcasting- Act
1942 in a manner adverse to	the licensee. Should

that position change we shall inform the licensees

I	12.
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r before finally deciding whether to exercrse any of I

I our powers giving the licensees adequate I '

opportunity to place material before us and to , 1

make submissions.	"
On 27 May the respondents commenced	the proceedings in

this Court by filing an applicatron under the Administrative Decisions (Judicial Revlew) Act 1977 ("the Judlcial Review - Act") for an order of review of the Tribunal's decision

refusing to provide to the respondents the partrculars sought in direct that counsel assisting the Tribunal

the

letter of 24 May 1988 and a second decision of the Tribunal

to refuse to give certain other directions or make certain

other orders to which I shall refer later.

On 27 May the respondent sought inteQocutory relief

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from the Court. This motion was heard by Eeaumont J. on 30 May. On 31 May Beaumont J. granted an injunction restraining the Tribunal until further order from holding the inquiry and

ordered that the final hearlng of the application for an

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order of review be expedited. The matter came on for final

hearing before Morling J.	on 2 June. The	hearing continued
on 3 June.	His Honour gave his reasons for judgment on	9
June and made	orders on 10 June.	His Honour declared that
the inquiry by the	Tribunal was	not authorised by the Act.

He ordered that the injunctlon granted by Beaumont J. on 31
May be dissolved and then restrained until further order the
Tribunal from holding the inquiry. His Honour stood the
questlon of costs over until a date to be fixed.
Statutory Provisions

It is necessary to refer to the relevant statutory

provisions which Tribunal exercises its powers of Inquiry and to determine the establish the structure in which the

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scope of those powers. Moreover, the reasonlng of the trial

Judge has to	be understood in the context of those statutory
provlslons.

The Tribunal is constituted as a body corporate by S. 7

of the Act. Its functions are enumerated

they include the functions of granting, renewing, suspending,
revoking and accepting the surrender of licences (para. (a));

in sub-s. 16(1) and

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of holding inqulries as provlded by the Act or as directed by

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the Mlnister under S. 18, and of publishfng reports in

relation to information relating to broadcastlng in Australla under those Inquires (para. (g)); of assembling

S.

124 (para. (h)); and of performlng such duties and exercising

such powers as are imposed or conferred upon it by the	Act
and the regulations (para. (i)).

“Licence“ is deflned by sub-s. 4(1) as meaning any one i .

of nine types of licence includlng a commercial radlo licence	l
and a commercial television llcence.

The Tribunal is empowered, for the purpose of exerclslng

its powers and functions under the Act, to make such orders,

give such dlrections and do all such other things as It

thlnks fit (sub-s. 17(1)). Orders made by the Tribunal shall

be in within the meaning of the Rules Publication writlng, shall not be deemed to be Statutory Rules

Act 1903-1939 and

shall have the force of law (sub-s. 17(2)). Persons are

prohibited from contravening or failing to comply with any

provision of an order made by the Tribunal whlch is

applicable to those persons (sub-s. 17(4)).

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Division 3 of Part I1 of the Act provldes for the

holding by the Tribunal of various forms of lnquiry including

inquiries as to the adequacy and comprehensiveness of

broadcasting services provided by licensees in partlcular

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areas (S. 18A), inquirles undertaken	at the directlon of	the
Minister (S. 18) and "ordinary" inquiries pursuant to	S. 17C.	I
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Section 17C is the critical section in Phis appeal, so I

shall set it out in full:

"17C. (1) where the Tribunal receives an

application under this	Act requesting the exercise	..
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of any of its substantive powers, or proposes to exercise any of its substantive powers otherwise

than on	such an application, the Tribunal shall
hold an exerclse of the power.	Inquiry into the requested or proposed

( 2 ) Where the Tribunal proposes, either on its

own lnitlative or at the request of any person, to

exercise any of Its powers, other than a , I

substantive power, under this Act or the - _ ,

regulations, the Tribunal may in its discretlon

hold an inquiry into the proposed exercise of the

powe c.	: ,
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( 3 ) The Trlbunal may, In ~ t s discretlon, hold

an inquiry lnto -

(a)	any matter relatlng to the operation	of
thls Act;
(b) any matter	relatlng	to broadcasting

services; or

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. (c) any other matter, being a matter with

1. respect to which the Parliament has power to make laws by vlrtue of paragraph 51(v)

   of the Constitution, that, in the opinion

of the Tribunal, relates directly or

indlrectly to a matter referred to in
paragraph (a) or (b).

( 4 ) A reference in sub-section ( 3 ) to a matter

shall be read as not including a reference to -

(a)	a matter relating to the Corporation or
the Service or to the affairs or
operations of the Corporation or the

Service; or

(b)	a matter In respect of which the Tribunal
is required or permitted to hold an
inquiry by vlrtue of any provision of
this Act (other than sub-section ( 3 ) or

sub-section 18(2)).

(5) SUbJeCt to sub-section (6) , any inquiry

under sub-section (1) shall be held in accordance

with this Division and the regulations.

(6) Notwithstanding the preceding bbpcovislons

of this section, regulations under section	1 3 4 may
make provision for and in relation to	-

(a) the deferral, suspension or termination of ordinary inqulries; and

(b) the holdlng of -

(1) joint ordinary inquiries into the

exercise of 2 or more powers by the

Tribunal;

( i i ) separate ordinary Inquiries into

different aspects of the exercise of

the same power by the Tribunal;

(iii) ordinary lnquiries Into certain

aspects only of the exercise of a

power by the Tribunal.

( 7 ) Where the Tribunal determines that for

reasons of urgency it is not practicable for the

Trlbunal or another person to comply wlth a

particular requirement OK particular requirements

of the regulations or of this Dlvlsion in relation

to the holding of an inquiry under sub-section

(l), the following provisions have effect:

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. (a) the Tribunal, or that other person, as

the case may be, is not required to comply with that requirement or those

requirements, as the case may be, ln

relation to the holding of the inquiry;

and

(b) the Tribunal may in lieu of that

requlrement or those requrrements,	as the
case may be, adopt any other procedure	or

procedures that it considers appropriate.

(8) Subject to this Division and to the

regulations, the conduct of an inqulry under

sub-section (2) or ( 3 ) is within the discretion of

the Trlbunal.	'I
The expression "substantlve power" appearing	in sub-ss.

17C(1) and	17C(2) is explained by	sub-s. 17A(2) in these
terms:

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"(2) reference A in this Diviston to a

substantlve power of	the Tribunal is a reference
to a power	of the Tribunal -

to determine program standards;

to grant or renew a licence under

sub-section 81(1);

to vary, revoke or impose a condition of

a	llcence	under	section	85, otherwise
than	in	accordance	wlth	sub-section

85(4);

to suspend or revoke a llcence under

sub-section 88(1), (19) or (1C);

to consent to a transfer or to the

admisslon of a person under	sub-sectlon
89A(	1) ;	l .;

to approve a transaction or a part of a	, i .
transaction under sub-sectlon gOJA(1) or (2) or 92FAA(1) or (2); to register a person under sub-section 91C(2) or to cancel a registration under sub-section 91C(10);
to	issue or revoke a certificate under

sub-section 91D(2) or (6) respectively;

to give dlrections under sub-sectlon b . .

92~(1), 99(2) or 119(1); to make orders for the purposes of sectlon 92v:

(ka) to sub-section 94W(4);	recommendatlon	make	a	under
(kb) to	make	recommendation	a	under

sub-section 94Y(2);

(kc) to give approval to the holders of permits under sub-sectlon MCS

94ZA(3)

(m) to grant permisslon under sub-section

99A(1) or (2);

(n) to issue a reprimand or admonishment

under sub-section lOl(1) or give a

direction under sub-section lOl(2);

(0) to determine perlods under sub-section

103; or

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(p)-(q) *	*	*	*	*	*	*
(K) to	give	approval	to	the	holders	of

supplementary radio licences under

sub-sectlon 119A(2)."

Section 17B provides:

"17B.(1) A person may at any time make an

application under this section requesting the I.

Tribunal to exercise any of its substantive

powers, other than a substantive power in respect

of the	exercise	of	which	an	application	is
expressly	permitted	to	be	made	un:or	another

provision of this Act.

(2) An application under this section shall be

made In accordance with the regulations."

Inquiries held by the Tribunal are to except where the Tribunal is satisfied that, by reason of be in public

the

confidential nature of evldence or of any matter or for any other reason, it is desirable that it should give directions

of certain specified kinds, which may include directions with

respect to the inquiry or part of it being held in private

(S. 19). The Tribunal 1s empowered to take evldence on oath

or affirmation (S. 21(1) and to summon persons to appear

before it to give evidence and to produce documents (sub-s.

21(2)). The presiding member of the Trlbunal at the Inquiry

may requlre persons appearing before It to glve evidence and

^ .

either to take an oath or to make an affirmation (sub-s.

21(3)). It is an offence for a person served with a summons to appear as a witness before the Tribunal to fail to attend

or fall to appear without reasonable excuse (S. 2 1 ~ ~ ) . It is

an offence for a person appearing as a witness before the

Tribunal to refuse to take an oath or make an affirmation or

refuse to answer questions or to produce documents without

reasonable excuse (S. 2lAB). The Tribunal may be assisted by

a barrister or solicitor at the inquiry (S. 21A). A party to

I . .

the proceedings at an ordinary inquiry may be represented

before the Tribunal by a barrister, solicitor or agent	(S.
22).

Parties ordinary inquiry are:  to proceedings before the Tribunal at an

(a) where the inquiry 'is to be held on

the application or at the request of a person - that person;

(b) any other person who has, in accordance with the Act or

the regulations, lodged a document in relation to the inquiry

which the Tribunal considers relevant to the inquiry or (c)

where the circumstances it is in Tribunal directs that the public interest to allow another by reason of special

person or persons to be party to that proceeding - that

person or each of those persons as the case may be ( S . 22AA).

Members or associate members of the Tribunal have the same

i

protection and immunity as a Justice of the High Court In

exercising their functions at	an inquiry (sub-s. 23(1)). The
Tribunal is required,	wlthout regard to legal forms and

solemnities, to make a thorough lnvestlgation into all

matters relevant to the inquiry and may give all such

I '

19

:

directions and do all such things as it considers necessary	, '
or expedient for the expeditious and just hearing of the	..
I .

inquiry (sub-s. 25(1)). The Tribunal 1s not bound by the

rules of evidence and may inform itself on any matter in such

manner as it thinks flt (sub-s. 2 5 ( 2 ) ) . Sub-~ect to S. 19,

the Tribunal is required to ensure that every party to

proceedings before it at an ordinary inquiry is glven a

reasonable opportunity to present his or her case (sub-s.

25(3)). It is a contempt of the Tribunal, punishable by a

I

monetary penalty or by imprisonment, for a person to insult

members of the Tribunal at the Inquiry; to interrupt the

Tribunal's proceedings; to create disturbances In or near a

place where the Tribunal is holding an inquiry; to contravene or fall to comply with directions given by the Trlbunal under

Division 3 of the Act; or to do anythlng th&	would, if	the
Tribunal were a court	of	record, constitute a contempt of
that court (S. 25AB).

Where the Tribunal has held

the Minister and to all parties to the proceedings and cause
to be made public a report setting out certain matters,

an inquiry it shall glve to

including the findings of the Trlbunal and the reasons for

those findings, the decision

or recommendations, if any, made

by the Tribunal In consequence of those findings, and the

! .

reason for any such decislon or recommendations (S. 258).

The Tribunal licence, by notlce in writlng to the licensee, to vary is empowered, durlng the currency of a

or

revoke any of the conditions of the licence other than

certain conditions which are immaterial	for present purposes,
or to impose further conditions (sub-s. 85(1)). The Tribunal	I ..

is required by S. 86 to renew licences except where the

refusal to renew the licence occurs as provlded by sub-ss.

86(11B), (llD), (11DA), (11E) and (11F) and sectlons 86A and

86B. The Tribunal may, by notice in writing to the llcensee,

suspend or revoke a llcence on specified grounds (S. 88).

The Tribunal is required to assemble information relating to broadcasting services in Australia which is supplied to the

Tribunal under ss. 123 and 124(2) or acquired by the Tribunal

in the performance of its functlons (sub-s. 124(1)). The

Tribunal is empowered, by notice in writing, to require a

licensee to supply	to the Trlbunal such information In his
possession or control as specified, being	informatlon
S

relating to a functlon of the Tribunal, and 'the licensee is

required to comply with the requirement (sub-s. 124(2)). The

Governor-General is empowered to make regulations not

inconsistent with the Act prescribing all matters required	or
permitted by the	Act to be prescribed or necessary or

'	convenient to be prescribed for carrylng	out or giving effect
to the Act (sub-s. 134(1)).

Reference should also be made to certain of the

regulations. An "inquiry" is defined by regulation 2 as

meaning an application under the Act requestlng the Trlbunal to exercise inquiry under sub-s. 17C(1) of the Act. An

i

any of

its sub-reg. 4(3), to	substantive	powers	1s requlred,	subject to	...,
I .

be in accordance wlth the approprlate 1-

approved form although It appears that there 1s in fact no

.

’ ,

such form prescribed; to	Indicate the power of the Tribunal
in respect of which	the application 1s made; to outline the
grounds on which the exercise by the	Tribunal of that power

. ,

is sought; and to be lodged wlth the Tribunal together with	. .	..
copies of documents relied upon to support the application
(sub-reg. 4(1)).	Under sub-reg. 4 ( 3 ) , an application may	be

made in other than the approved form wlth the consent of the

i

Tribunal and subject to such conditions as the Tribunal

specifies. Sub-regulation 4 ( 4 ) provides that substantial

compliance with reg. 4 is sufficient, and strict compliance

, ’

1s not required. The Tribunal may refuse to recelve	an
applicatlon that does not comply substantially with	the

requirements of the regulations in relatlon to applicatlons;

that does not contain sufficient information to enable the

.

Tribunal to commence an inquiry; or that ‘ 1 s scandalous,

vexatious, frivolous or an abuse of the procedures of the

Tribunal (sub-reg. 5(1)). Where matter that affects a licensee, the Trlbunal is required to an inquiry relates to a

notify the licensee in writing of the inquiry if the licensee

is not a Tribunal is also requlred to notify the licensee in party to the inquiry (sub-reg. 7(l)(a)). The

writing

of each relevant submission lodged with the Tribunal by
another person in relation to the inquiry whether	or not the

I .

licensee is a party to the inquiry (sub-reg. 7(l)(b)). The

Tribunal is required, so far as is practicable, to ensure

that each llcensee notified under sub-reg. 7(1) in relation

to an inquiry receives a copy of each relevant submlsslon

lodged with the Trlbunal by another person in relation to the
inquiry (sub-reg. 7(2)).

The commences an inquiry regulations provide that, where the Tribunal

it shall, subject to certain exceptions

not material in the present case, publish a notice of the

commencement of the inquiry in accordance with sub-reg.	9(3).
The notice shall	be published within a specified period after
the	commencement

of inquiry is held in consequence of an application the notice the inquiry (sub-reg. 9(2)). If the

L /

is	required	to	set	out	relevant	particulars	of	the	!
I .

application, specify the issues to be considered in an

inquiry and specify certain other matters (sub-reg. 9(3)).

Regulation	l0	makes provision for the form and scope of
submissions	to

the Regulation 12 provides that, where the Tribunal is satisfied	Tribunal	in relation	to	an	inquiry.	: ,
!
6

that the issues to be consldered in an	in'quiry	should	be
changed from those stated	in	the	notice publlshed under

-:

sub-reg. 9(1), it shall determine new issues to be consldered

in the inquiry. where the Tribunal determines new issues and

those issues are substantlally dlfferent from those stated in

the notice published under sub-reg. 9(1), the Tribunal is

required, as soon as practicable, to give notice in writing to the parties to the inqulry of the new issues to be considered and to publish a notice settlng out those new	' .
i
issues and specifying the day on or before whlch interested persons may make submissions to the Tribunal In relation to the Inquiry, having regard to those issues (sub-reg. 12(2)).
,'.
! ..
I
Reasoning of the trlal Judge

Morling J. considered first the question whether the

Inquiry was authorlsed by sub-s. 17C(1) of the Act. He said:

..:

,I

"Central to that question was the meaning of

'proposes' in the collocation of words 'where the

Tribunal ... proposes to exercise any of its

substantive powers ..."

He considered the variety of dictionary meanings	of the word
"propose" and said that	the meaning would depend upon the

context in indications in the context in which which it is used. His Honour referred to

sub-s. 17C(1) was set

which led him to conclude that sub-s. 17C(1) required that

I '

the Tribunal form at least a tentative intention to exercise	b
one of lts substantive powers before it could	be said that

the Trlbunal "proposes to exercise" such a power. H1s Honour
reasoned that the sub-section envlsages two situatlons which
may trigger the obllgation of the Tribunal, and hence its

power, to hold an inquiry. First, the Tribunal may receive

an application

requesting substantive powers. He said that in such a case the person it to exercise one of its

seeking an Inquiry must have the intention that the Tribunal

will exercise its substantlve powers In accordance with his request. The second sltuation whlch triggers the obligation

and power to hold an inquiry arises when the Tribunal

"proposes - to" exercise any of Its substantive powers. His

Honour noted that the sub-section dld not refer to the

Tribunal's proposal that its power be exercised. His Honour

. :

said this tended to lndicate that the draftsman had in mind _.

that the obligation to hold an Inquiry would not arise unless ,

and untll the Trlbunal intended to exerclse one of its

. ,.

substantive powers. that it was easy to understand why this is so if the Tribunal He noted that sub-s. 17C(1), unlike

sub-s. 17C(2) and ( 3 ) , is mandatory in its terms and sald

!	has formed the Intention, albelt provisional, that it should
exercise any of Its substantlve powers. He observed that in .
many cases consequences may be serious for a licensee and others; that both the llcensee and the general public are likely to have a where a substantive power is exerclsed the
real interest In the exercise of the power; and that the

:. '

requirement that the Tribunal hold an inqulry when its

thinking has reached the stage that it has formed an

b

intention to exercise such power a therefore seems

appropriate.

His conclusion that the Tribunal had no power to conduct Honour gave various other reasons to support his

the

inquiry unless it has first formed an intention to exercise

one of its substantive powers albeit that the intentlon may

be abandoned after the holding of the inquiry.

His Honour inquiry in issue considered the question whether the

was authorised by sub-s. 17C(3) and sald

I	that, even if that sub-section was an avallable source of
power to hold the inqulry of the klnd upon which the Tribunal
has embarked, the Trlbunal had not rnvoked that power in the
present case. His Honour noted that It was not suggested

.. !

! that the Tribunal had in the exercise of its discretlon

decided to hold an inqulry under S. 17C(3), and noted further

that counsel for the Tribunal had "all but conceded" that the

Tribunal had proceeded only in purported pursuance of sub-s.

!

17C(1). Hls Honour observed that It was therefore

unnecessary for him to decide "whether, in any event, the

type of matters which may be the subject of inquiry under S.

17C(3) are different from, and do not include, the matters

which are the subject of the current inqulry."

Before this Court on appeal counsel for the Tribunal

conceded that pursuance of sub-s. 17C(1) and conceded that the Tribunal did the Tribunal proceeded only in purported

not proceed or purport to proceed pursuant to sub-s. 17C(3).

8

The evidence clearly establishes that the concession was correctly made.

..

In the concluding portion of his reasons for judgment the trial Judge , ' :-.

sald:

"In so far as the appllcants require an extenslon

for decision to hold the inquiry, the purpose of challenging the

of time

an extenslon of time

is granted."

I .

The explanatlon of this passage	1 s that, in the application	!
2 I

as originally framed, the respondents sought rellef only in
respect of (a) the refusal of the Trlbunal to furnish further

and better particulars of matters into whlch the Trlbunal was

inquiring (described in the appllcation as the flrst

decision), ( b ) the Tribunal's decision refuslng to direct

that counsel for the respondents may take in chief the

I

evidence of all witnesses whom they propose	to call, and,
that subject to questions	of convenience, counsel for the

respondents may determlne the order of wltnesses whom they

propose to call (the second decision) and	(c) the decision of
the	Tribunal to refuse to stay the inquiry pending the
determinatlon of an	application to review the first two
decisions	(the third decision). Later the authority of the

I

Tribunal to application for an order of revlew under hold the inquiry was challenged. Since the

the Judicial Review

Act - required amendment to enable the authorlty of the

: ,

Tribunal to hold the inquiry to be challenged and, since any

such amendment was outslde "the prescrlbed period" as defined

*

in S. 11 of the Judicial Review Act, the respondents sought

an	extension of time accordingly. His Honour	had earlier
granted leave to amend the application.	In his reasons for	i

judgment his Honour extended the requisite time accordingly.

The Extension of Time

The decision to hold the lnqulry was made on 5 February

and communicated that day to the respondents. The original

application in this Court	was filed on 21 May and it sought a
review of the three decisions	of the Tribunal to which I have

referred. It also sought review of certaln conduct of the

Tribunal relating to those deciszons.

i

. . . -.

r

.~

The respondent sought interlocutory injunctive relief

from the Court on 2 7 May which, as I said earlier, was heard by Beaumont J. on 30 May. On 31 May Beaumont J. granted the

interlocutory in~unction mentioned earlier. On 30 May,

during the hearing before Beaumont J., the respondents raised

. .

for the first time the issue as to the validity of the

inquiry based on the construction of sub-s. 17C(1) and, in

particular, the meanlng of the word "propose". The flnal

hearing came before Morling J. on 2 June when the respondent

sought to amend the application by seeking a review of

declsions numbered application. The fourth decision 4 and 5 in what became the amended

as to which review was

sought was the decision by the Tribunal to commence the

inquiry when it did not propose to exercise any of its

substantive powers. The	fifth decision was 'the decision by
the Tribunal to inqulre	into, or alternatively, to permit

counsel assisting the Tribunal to raise, certain matters

described as "issues" in the letter of 12 May 1988 from the

Australian Government solicitors, certain matters described as "additional lssues" Solicitor to the respondents'

in the letter of	25 May 1988 from the Australian Government
Solicitor to the respondents' sollcitors and the two matters
set out in the letter of	25 May as being matters whlch the
Tribunal might need to	consider, wlthout complying In each

I case with the provisions of regulation 1 2 of the Broadcasting
Regulations.

!

t '

Morling application to raise these matters.	J.	granted the respondents leave to amend the	, .
I .
i

20.   : :

n

In interfering with hls Honour's exercise of dlscretion allowing
the amendment. Proceedings before the Tribunal had earlier my oplnion no ground has been established for

proceeded on the assumption that the Inquiry was authorised

! ,;

by the Act and the dispute before the Trlbunal centred upon	.. ' < I
questions concerning the provision	of particulars and related

matters. Counsel for the Tribunal informed Morlrng J. that

I '

the Tribunal did not consent to the proposed amendment but

did not wish to be heard in opposition to it. It was not

suggested to Morllng	J.	that the amendment would occaslon
preludice to the Tribunal	or to any other persons and	no

evidence was led on that matter before his Honour. The

following day, 3 June, the	respondents	sought	a	further
8

amendment challenging decision, namely, the declsion by the Tribunal to commence
the lnquiry without determining and informing the respondents what was described' as the sixth

of the provisions of the Act pursuant to which the inquiry

was to be conducted. Morllng J. also granted that amendment.

No challenge is made to that particular ruling.

The determination heart of the Tribunal's of a questlon of law going to the

authority to conduct the inquiry was

obviously a matter that should have been clarified as soon as possible. This was precisely the view which Morling J. took

and, in my oplnlon, he did so correctly.

! - .I I

c

I

I

Construction of sub-section 17C(1)

The arguments supporting the construction of the word

!

"proposes" where appearing in	sub-s. 17C(1) as requiring some
initial decislon of	the Trlbunal to exercise a substantial

power are aptly summarised by Norling J. in his reasons for

judgment. I have previously referred to his Honour's

L i

reasoning as to that question.

Whilst inltially I found his Honour's interpretation of

convinclng, respect to hls Honour, found that Interpretation impossible to accept.	I have on reflection,	with	;-	:
.	.	I	.

the sub-section

*

The purpose of the sub-section is to ensbre that, before the Tribunal exercrses any	of its substantive powers, it must
hold an Inquiry Into matters pertalnlng to the exercise	of

that power. The necessity for the Inquiry is plaln enough.

I

The substantive powers of the Tribunal are enumerated In

sub-s. 17A(2) and they cover a wide range	of matters having
significance both for	the particular licensee and for the

.

public interest, reference to a few of which is sufficlent to

demonstrate that determine program standards (para. (a)); to issue reprimands width. The Tribunal is empowered to

_ .

..

or admonlshments to llcensees who have contravened certain

provisions of the Act programs complying with program standards (para. in relatlon to the broadcast of

(n)); to

determine periods during which a licensee shall broadcast

I

Divine Worship or other matter of a religlous nature (para.

!

(0));	and to grant	or	renew	llcences	(para.	(b)).	More
pertinent to Tribunal specified in sub-s. 17A(2) include the power to	this	case,	the	substantive	powers	of	the

vary, revoke or impose a condltion of a llcence under S. 85

I
, :

(para. (c)) under sub-ss. 88(1)(1B) or and the power to suspend or revoke a llcence .

(1C) (para. (d)). ! !

The substantive powers of the Tribunal are directed to

matters which the legislature has perceived as important,

havlng obvious example, the power to determlne program standards) or upon impact on the community generally (for

indivldual licensees (paras. (c) and (d)) or upon applicants

I for licences (para. (b)). In each case the effect of sub-s.

17C(1) is that an inquiry is essential before the substantive

.

powers of the Trlbunal can be exercised.	.
The facts and circumstances which come to the attentlon of the Tribunal before any Inquiry is held may	be diverse and

of varying degrees of authenticity and reliability. Rumour,
opinion and assertions of fact are the raw material which the

Tribunal must cull before it decrdes whether or not an

inquiry	is	called for. Sometimes the Trlbunal may decide
that the facts are	so strong and self-evidently true that,	I	.

unless explained satisfactorily by a licensee, his licence

must be in jeopardy. At other tunes the Tribunal may decide

that the material before it is so inherently improbable that it deserves no credence or further consideratlon. In between these two extremes the Trlbunal may be troubled and decide

!

that the material before it calls for a public inquiry before

is made circumstances, may not be able to or may by it. But the Tribunal, In the

any decision

not thlnk it right

to reach any view prlor to the commencement of the inquiry on
the question whether, for example, a licence should be

suspended or revoked or a condition of a licence should be

varied, revoked or imposed. A situation of this kind is 1-

probably a not infrequent occurence. I cannot perceive any

sound reason why the legislature should those in

Circumstances require the Tribunal to first form a view to

exercise the notwithstanding that It particular substantive power In questlon

may change or abandon that intention

after an inquiry has been held.

For the Tribunal to be required to form an intention of

L

this kind would place it in an adversarisl role in the

..

conduct of the inqulry. This would be an lnvidious position

in which	to place a public body such as the Tribunal.	The
Tribunal would then be perceived	by the public and by	the
persons whose interests are directly	affected by	its

decisions, including licensees, as having prejudged the very

matter the and jury. The fact that the Trlbunal might change its mind, truth

of Investigate. The Trlbunal would be seen as prosecutor, judge which the Tribunal is required to

and ultimately determine not to exercise the substantlve

power to which its preliminary intentlon was directed, does
not detract from the force of these consideratlons. It would

require compelling language before I would be prepared to

interpret sub-s. 17C(1) in this fashion. Indeed, as I read

the sub-section,	its	language	suggests	the	contrary
conclusion.

Before turning to that matter that the scope of the powers defined as "substantlve" powers It is necessary to say

i

of the Tribunal in sub-s. 17A(2) supports the view which I

have formed. refers to the Tribunal's power to determine program standards Take, for example, para. 17A(2)(a), which

pursuant to S. 16 of functions is to determine the standards to the Act. One of the Tribunal's

be observed by

! licensees in respect of the broadcasting of programs and In
respect of programs to be broadcast (para. 16(l)(d)).
Program standard is an expression defined as "a standard or

, -

condition deter mined by the Tribunal in the performance of

its function under paragraph 16(l)(d)": sub-s. 4(1). I -

Sub-section 99 1) requires a licensee to provide programs.

b

Sub-section 99 2) empowers the Tribunal to give dlrections to

licensees for the standards are complied with in relation to the broadcastlng
of programs by the licensee. Licensees are obliged to comply
both with program standards and with licence conditions.
Program standards are the means of prescribing requirements purpose of ensuring that the program

common to conditions are the means appropriate for prescribing program all licensees of a class, whereas licence

requirements to meet the clrcumstances of a particular

licensee. The Tribunal may wish to consider whether certain program standards should be varied at all, but may not have

decided that they should be varied, or it may not have

decided whlch partlcular changes should be made to program

standards. The purpose Tribunal to inform itself before making any such decision. of the inquiry is to enable the

I

I . '

I	'
c	,

" . .

can see no warrant for construing sub-s. 17C(1) so as to

depend for its operatlon upon a declslon being made by	the
Tribunal	before

a standards should be determlned or that a partlcular standard public inquiry is held that program

' !

!

should be varied.	, .
I .
1 ,

Similarly with respect to that one of the substantive powers of the Tribunal is a
power "to determine periods under sub-section 103". Section
103 provides: para. 1 7 A ( o ) which provides

"A licensee shall broadcast Divine worshlp or other

matter of a religious nature during such periods

as the Tribunal determlnes and, if the Tribunal so

directs, shall do so without charge."

b . ,,

The Tribunal

may broadcasting of Divine Worship or other matter of a religious conclude that there is insufficient

I -

. ,'

nature and that a dlrection under S. 103 is desirable,

and that an inquiry should be held under sub-s. 17C(1) prior	.
to making such direction, or it may simply think that there

!	is sufficient public interest to justify the holding of an
Inquiry into the question, the results of which may then lead

It to decide to exerclse Its powers under	S. 103. Various
shades of opinion of the Tribunal lle	in between these two

extremes. I cannot discern any valid reason why the Tribunal tentatively, that a licensee shall broadcast Dlvine Worshlp or other matter of a rellgious nature during certain periods	should	be	required to have already formed a view, even
in	order to have the power to hold	an	inquiry into that

issue. These are but two examples of the point.

I

The language of S. 17C itself must be examined to f !

determine the proper constructlon of sub-s. 17C(1). In . :

undertaking that examinatron one bears In mind the need for the sensible operation of the Act to which I have referred above.

The requirement of sub-s. 17C(1) that the Trlbunal hold

an inquiry is occasioned either by the Tribunal's receipt

from a person of an application under the Act requesting the

exercise of any of its substantive powers or by its own

, .

proposal to exercise any of its substantive powers. Section	!
17B provides for an applicatlon to the Tribunal in relation
to the exerclse of the Tribunal's powers: .	b

f.

I

"178. (1) A person may at any time make an

appllcatlon	under	thls	sectlon	requesting	the
Tribunal	to	exerclse	any	of	Its substantlve

powers, other than a substantive power in respect

of the exercise of which an application is

expressly permitted to be made under another

provision of this Act.

An application under this section shall be made in accordance with the regulations."

( 2 )

The effect of sub-s. 17C(1) 1s that the mere receipt of

! !

the request from any person is sufficient to require the

Tribunal to hold the Inquiry sublect to the applicatlon being

made in accordance with the regulations. I note that reg. 5 , I '

to which I referred above, provides that the Trlbunal may

..

refuse to recelve an	application that:-	(a) does not comply
substantially with the requlrements	of	the regulations in

I ,

35.

relation to appllcations; (b) does not contaln sufficlent

information to enable the Tribunal to commence an inquiry; or

(c) is scandalous, vexatlous, frivolous or an abuse of the

procedures of the Tribunal. But the terms of the regulations

I '

cannot be called in ald of the interpretation of the section.	. I
I ,
The wording of sub-S. 17C(1) "otherwise that on such an application" appearlng	.-

in juxtaposition to the words "or

proposes to exercise any	of its substantlve powers" suggests
that the "proposal" of	the Trlbunal to which the sub-section

is applicatlon from any person requesting governed either by the receipt of an

is directed

the exerclse of the

relevant substantive power or by the Tribunal's own proposal

Independently of the receipt of an application from any

.

!	person. The meaning of the word "proposes" In the context of
sub-s. 17C(1) must equally describe the Tribunal's proposal
to exercise a substantial power whichever of the two sources
enlivens its proposal, i.e. whether a request from a person
which in itself imposes a mandatory duty upon the Tribunal to
hold an inquiry or the Tribunal's own decision. The word
"proposes" is therefore used in two pituatlons, in one of
which an Tribunal a discretion as to whether an inquiry should appropriately formulated application denies the

be

held, while in the other the declslon to hold the lnqulry

_ .

derives from a discretlonary judgment	of the Tribunal itself.
The language of receipt by the Tribunal	the sub-section assumes that the mere

of an application from a person

requesting the exercise of any of Its substantive powers

requires some further act of the Trrbunal which may be

characterised as a proposal by the Tribunal to exercise a _.

substantive power:  if this were not the case the words

"otherwise than on such an applicatlon" would be unnecessary,
since the recelpt of a request from another person is not a

proposal of the Tribunal. Those words contrast the proposal

of the Tribunal deriving from some further act after the

receipt of a request from a person that it exercise its

I	substantive powers with a proposed exercise of substantive
powers originating "otherwlse than on such an appllcation", _ I

I .

that is on the Tribunal could not the Tribunal's own motion. The further act of

be some decislon by it that the power

should be exerclsed, since a request to the Tribunal from any

!

person IS itself a sufficient trigger to require the Tribunal

0

to hold the inquiry subject to the application having been

!

made in accordance with the regulations. One must therefore

look	elsewhere to identify a further act of the Tribunal
arising in further act, in my view, consists not	both sltuations constituting a proposal. That

of the declsion to hold

an inquiry, nor of	the formation of an intention to exercise	.,
_ i

substantive powers, but of the Tribunal's bringlng under

consideration the exercise of a substantlve power.

The requirement that the Tribunal form an initial vlew that a substantive power should be exercised, albeit an

lnitial view susceptible of change, does not slt easlly wlth

the language

of "proposes" slts more easily with the notion that the Tribunal the sub-section. The use of the word

advances or puts forward as a possible view that it may

I

- . I

3 1 .

exercise a substantive power after the holding of an Inquiry.

This is the meaning of the word "propose" to whlch the

sub-section is directed. It is also consonant with one of

the meanings of the term attributed by the dictlonaries,

i namely, "to put forward or present for consideratlon ... to

put before the mind, bring to one's notice, call attention

to; to set forth, state, propound" (The Compact Edition Of

The Oxford English Dictionary, Re-issued 1987). One must be

careful, however, not to place undue reliance upon

dictionaries in the interpretation of statutes of the kind

with which this appeal is concerned. They are a gulde, not a

L

determinant. .

The use of the word "proposes" therefore directs

attention to the Tribunal's contemplation of the possibillty,

at the time an inquiry	is Initiated, that the outcome of the
inquiry may involve the exercise of	a substantive power by

the Tribunal. That the obligation to hold an inquiry should arise in such a situation - that is, where the exercise of a substantive power is a possibillty which 1s present for

consideration before the Tribunal - is consistent with the slgnificant consequences for the publlc and for the llcensee

I

of the exercise of such powers, to which I have referred

above. The word "proposes" locates the central issue In

determining whether the Tribunal is to be requlred to hold an

inquiry, namely, whether the exercise of a substantive	power
may be in prospect. This issue does not depend upon	the mere

state of mind of the Tribunal, but upon a decision of the

Tribunal contemplating the exercise of substantive powers.

I

In this context, the should be viewed broadly rather than narrowly, and Tribunal's decision-maklng process

It may be

that the decision to initiate an inquiry under sub-s.	17C(1)
and the decision contemplating the exercise of substantive powers will on occasion be coincident.	It remains, however,

that a decision whlch puts forward for consideration	or	i ;
I ,

advances as a possible outcome the exercise of substantive

powers	is	a necessary basis of the	sub-s. 17C(1) inquiry
power.

Sub-section interpretation of "proposes" in 17C(2) provides a useful clue to the

sub-S. 17C(1). It provides:

"17C (2) where the Trlbunal proposes, either on

its own initiative or at the request of any

person, to exercise any of its powers, ether than

a substantive power, under this Act or the

regulations, the Trlbunal may In Its discretion hold an inquiry into the proposed exerclse of the

power . "

The word "proposes" in either on the Tribunal's own initiative or at the request of	sub-s.	17C(2) governs a proposal
any person to exercise any	of	its powers other than a

substantive power. defrnltion of "proposes" must Thls supports the n e w that the

be as apposite to a proposal of

the Tribunal's own lnltlatlve as it is to a proposal made at

the request of any person. It suggests that "proposes" is

used in each case in the sense of puttlng forward for

consideration the exercise of powers other than substantive powers, elther on the Tribunal's own initlatlve or following the receipt of a request from a person.

Sub-section 17C(3) requires consideratlon. It empowers, but does not require, the Tribunal to hold an inqulry into

any of the three classes of matter described in sub-s. (3). . I

I	I agree with
the submlssion of counsel for the respondents that the matters referred to in paras. (a), (b) and (c) of
sub-s. 17C(3) include particular matters of the kind referred to in sub-s. are matters of general policy and do not

I . .

17C(1) and 17C(2), belng the exercise of substantive powers

.:

and powers other than substantive powers respectlvely. This

result is consistent with the generality of the categories of

I . matters listed in S. 17C(3); with the absence of speciflc

statutory reference to regulations governing the conduct of a

S. 17C(3) inquiry, and wrth the lack of any reference in S.

L

17C(3) to the actrons whlch the Tribunal might take followlng

a S. 17C(3) inquiry.	It 1s also consistent wlth the scheme	I .
I .

of S. 17C as a whole, which indicates that the exercise of

substantive powers directly affecting a licensee or the public interesst be preceded by a mandatory inquiry. I do not accept that the Trrbunal may lnqulre as to the affairs of

a particular licensee under S. 17C(3) merely f o r the purpose

. .,

of informing itself, if it does not have in contemplatlon the
exercise of a	power, whether substantlve or other than

substantive, within the scope of sub-s. 17C(1) or sub-s.

. -,

17C(2).

The vlews which I have expressed about sub-s. 17C(3)

certalnly support the construction of sub-s. 17C(1) which I

have placed upon it. I should say, however, that I would : ,

. . . 40 .

have reached the same conclusion wlthout the aid	of	che
reasonlng based	on sub-s. 17C(3 1 .	I say this because the

construction of sub-s. 17C(3), though argued before us, was not fully explored by counsel, so I prefer my views on thac

sub-section to be regarded	a s	tentative.
If sub-s. 17C(3) bears the conscrucrion which I favour and If the Tribunal cannot hold an inqulry pursuant to sub-s.	L	,

I	..
i
I_ I

17C(l) unless it first forms an intention to exercise a

substantlve power, it follows that there is no provision in

'

the Act empowering the Tribunal to hold an lnqulry when l e slmply seeks information relevanc to the exercise of a substantive power, but has not decided to exerclse the power.

S

There is no lacuna in the Act. The construktion	of sub-S.
l7C(l) which commends itself to	me accommodates the situacion

where the Tribunal seeks to inform irself short of its

reaching a decision that the substantive power be exerclsed.

It is perhaps unforcunate that the draftsman of che

sectlon chose the word "propose". It is not an easy word

and, as this case

to Its interpretatlon. shows, 1 s susceptible of different views as

It Inserted rn Dlvlsion 3 of Part I I of che Act by should be noted that s s . 17A, 178 and 17C were

S. l7 of the

. ,

. _ ,

Broadcastlng and Television Amendmen: ACE 1985 (No. 66 of	i
i '.
1985). Prlor to chat Act the relevanc	provision was S. 89 of

the Broadcasting and Television Act	1942, as the Act	was then	i
m,,,

titled. Section 89 was ?tself inserted by S. l8 of the

Broadcasting and Televislon Amendment Act 1977 (Act No.	160
of 1977).	Sectlon 89 then provided:

I

"89. The Trlbunal shall not suspend or revoke a

I licence on any ground except after holding an

inquiry into the question whether facts exist by

reason of which the licence 1 s liable to

suspension or revocation on that ground."

That section must be read In conjunction with S. 88, also

introduced into the Broadcasting and Television Act by Act

No. 160 of 1977.	Sectlon 88, so far as presently relevant,
then provided:

i i
! '

"88.(1) Subject to section 89, the Trlbunal may,

by notice in wrltlng to the licensee, suspend or

revoke a licence where -

(a) the Tribunal is satisfled that ab' condition

of the licence has not been complied with;

(b) it advisable in the public interest, for a appears to the Trlbunal that it is

speclfied reason, to do so; or

(c) ..."

In my n e w , S. 89 and the present sectlon, S. 17C, were t

intended to achieve substantially the same purpose	so far as
presently relevant. Section	89 did not require the Tribunal
to form some initlal or prima facie view that a licence be
suspended or revoked before the Tribunal held	an inqulry. It
simply prohibited the Tribunal from suspendlng	or revoking a

licence except after holding an inquiry Into the question

whether facts existed by reason of which the licence was

liable to convincing reason why S. suspension or revocation. I can discern no

17C would be intended to produce a

substantially different result.

1

l .

t:

I

I therefore respectfully differ from the interpretation of sub-s. 17C(1) adopted by the trial Judge.

Identification of the proposal

A proposal power, founding the obligation to hold an inquiry pursuant to of the Tribunal to exercise a substantlve

sub-s. 17C(1),	necessarily lnvolves a decision	being made by	!
i

the Tribunal from which the proposal springs.	..,
The Tribunal conslsts of a at least one but not	Chairman, a Vice-chairman and

more than six other members:  sub-s.

8(1). There may be may delegate to a member of the associate members: S. 11. The Tribunal

Tribunal arty of its powers

i

under the Act other power to hold inquirles: sub-s. lSD(1). than the power of delegation and its

The Chairman of the

Tribunal may constitute a Division of the Trlbunal for the

purposes of an Inquiry: sub-s. 15C(1). Whether it be the - .

Tribunal or a Division of the Tribunal that holds the inquiry a decision would have to be made relating to or embodying the proposal to exercise a substantive power.

l

The Tribunal passed a resolution on 5 February 1988 in

the	terms which are set out	earlier,	concluding wlth a
decision to issue the notlce to notice was Issued and communicated to the respondents on	hold	an inquiry.	Thls

.

5

February.

I

' 4 3 .

It Tribunal never properly was argued on behalf of the respondents that the

or clearly formulated a proposal

: , I .

withln the meaning of sub-s. 17C(1) in that all it did was to

identify certain matters that concerned	it and decide to hold
an inquiry without deflning its subject matter	or ambit, and

that it did not relate its decision	t o any proposal	to
exercise a substantial power.

the Tribunal to exercise that power. It is important to

emphasise that, whatever may be the meaning of the word

"proposes", the event which triggers the obligation to hold an

inquiry 1 s a decision made by the Tribunal itself, as distinct

from a decision or suggestion made by some Individual

! associated with the Tribunal.

.

8.

Secondly, Morling J thought that the argument of

admlnistrative inconvenience was exaggerated by counsel for

the Tribunal. He referred to the existence of "means

available to the Tribunal, short of a full scale mquiry of

the kind contemplated by s.l7C(l) and the regulations, of

obtaining information which would enable it to form a

provisional intention to exercise one of Its substantive

powers".	His Honour mentioned s.17(1) and s.124(2).
Section 17(1) empowers the Tribunal "to make such orders, give such dlrections and	do all such other things as
It thinks fit".	These are apparently wide powers but, upon

analysis, they would appear not to enable the Trlbunal to

a '

compel the attendance of persons for oral examination; this
being, in many cases, the only feasible way of resolvlng
issues of fact. As Bowen CJ pointed out in Australian

Broadcasting Tribunal v Saatchi & Saatchi Compton (Vic) PtY

Ltd (1985) 10 FCR 1 at p.4, the "orders" referred to	in
-
s.17(1) "were clearly intended to be rules of general

' _

applicatlon which would have the force of law". They must be

laid before both Houses of Parliament and are sublect to

disallowance.	A direction, on the other hand, may be
addressed to a particular person, who	is bound to comply wlth

its terms. There appears to be no reason to doubt that the Tribunal might direct a person to deliver to it documents

relevant to Its functions.	However, ln the face of the
detailed provisions of the Act for the taklng of	oral

testimony -- see ss.21, 21AA, 21AB and 25 -- it is difflcult

!

. 1.	9
c

to see that the power granted under	s.17 to issue dlrections
was intended to set	up a separate, and unregulated, regime

regarding oral evidence. And, In the face of the provisions regulating inquiries -- ss.21A, 22, 22A, 22B, 22C, 25AB and 25A -- it would be strange if the Tribunal could, in effect, conduct under s.17 a completely unregulated inquiry involvlng

oral testimony.	AS to the power to do "other things", it is
enough to refer further to Bowen	CJ in Saatchl:

"This leaves the third method, namely, that the

Board might do all such other things as It

thought fit. Thia 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

partlcular person like a directlon, but which

it might publlsh and require to be observed."

Section 124(2) empowers the Tribunal, by notice in .'

writing, to require a licensee to supply to It, within a specified period, "such information in hls possession or control as is specified". Once again, this would enable the

Trlbunal to obtain documents; it would not enable it to

obtain oral testimony.

It seems to me, with respect to Norllng 3 , that

neither s.17(1) nor s.124(2) would overcome the problem llkely

to be experienced in many cases if the Tribunal were forced to

make a judgment, even upon a preliminary basis, as to whether

it ought to exercise a partlcular substantive power wlthout

having the opportunity of an lnquiry upon that question.

I

I	-
!.

Thirdly, Morling J was influenced by what he saw as

the symmetry between the notlon that an applicatlon by an

!

outsider might trigger the obligation to hold an Inquiry and

the idea that "proposes" involved the formatlon by the

Tribunal of a preliminary view that a substantlve power should

be exercised. His Honour commented that the "maker	of an
applicatlon must obviously form a preliminary,	if not firm,

L
'

view of the matters referred to In his application before he

submits it".

I have no doubt that persons who apply under s.17B of

the Act to the Tribunal requesting it to exercise a

substantive power will sometimes	have both a firm
understanding of the relevant facts and a deflnrte	view as to

.

the course which the Tribunal ought to take. 'But s.178 is not

limited to applications by such people. The section

authorizes any person to make an application "requesting the I '

Tribunal to exercise any of its substantive powers". It seems

to me that it would not be Improper for a person, havrng

:

information which -- if true -- would seem to justify the

:. '

exercise of a substantive power by the Tribunal, but having no r : 1 '

personal knowledge of the truth of that Information, to make a	l
i

request under s.17B in order to enable the Tribunal to

Investigate the matter. In such a case the appllcant would be

putting forward for consideration	the question whether the
particular power should	be exercised.

i	* ,
..
._

11.

. .

W

In summary, I do not think that any of the matters mentioned by Morling J should be regarded as decisive. The better view, as ~t seems to me, is that Parliament would not

have intended the dilemma to which I have earlier referred and

that it intended to permit the Tribunal to put forward for	I
I
discussion a proposed exercise	of its powers, without the
Tribunal having first formed	any view, however tentative, that

it would In fact be appropriate to exercise that power.

This conclusion leads me to the second question

relevant to the validity of the subject Inquiry: did the

Tribunal, in this case, propose the exercise of a substantive

power? I think that thls question should be answered in the

affirmative. As I have said, s.l7C(l) requires a proposal by

b

the Tribunal. It follows that the decision	td put forward for
consideration the exercise of a substantive power must	be made
by the Tribunal	itself, at a properly constltuted meeting of

the Tribunal, or by a delegate of the Tribunal duly appointed

L -

under s.15D of the Act. In the present case the decision was _.

taken by the Tribunal itself. There is no question about

authority. The only question can be whether the resolution 5 February 1988 amounted to a decislon of

to put forward for

consideration the question whether action ought	to be taken in	I '
relation to the licences of	the respondents.	I '

There is no doubt that the relevant portlon of the Tribunal's resolution was cryptic; but I agree wlth Lockhart

J that, reading the minute as a whole, it amounts to a

I. .

. L

decrsion to put out for consideration the questlon whether

actlon ought to be taken in relation to the licences held by

companies associated with Mr Bond.

In the mlnute, the genesis of the Tribunal's concern was identrfied, the Tribunal recording the receipt of	I i
-. .
correspondence alleging that	Mr Bond had made comments, in his

interview with MS Jana Wendt, which conflicted wlth his

evidence before the Tribunal in 1986. The reference, in the

minute, to the fact that the Tribunal noted that decisrons were outstanding in two inquiries involving licences

controlled by Mr Bond's companles shows that	the Tribunal
regarded that allegatlon as raising the question of	Mr Bond's

fitness to be associated with a licence held under the Act.

In the light of those matters, and "based on d e materlal

before it", the Tribunal decided to hold an inquiry to

investigate the matter referred to In the correspondence	it
had received. Read	in its full context, that decision could

only be to hold an inquiry to consider, as the ultimate
questions, whether Mr Bond was a fit and proper person to be

associated with a licence held under the Act and, if not, what

action should be taken in relation to the licences held by the

companies with whlch he	was Involved. The Tribunal's
recognition that the interests	of the holders of those

licences, identified generically as "Bond Media", were

potentially at risk is made apparent by the decislon of the

Tribunal to take special steps to notify those holders	of its
decision to conduct the inquiry.

It appears to me accurate to say that, on 5 February

1988, the Tribunal did propose -- in the sense explained above

-- the exercise of one or more of its substantrve powers and

that, consequently, one of the two possrble condrtrons

precedent to the establishment of a valid inquiry	was in this
case satisfied. I agree with the	orders proposed by
Lockhart J.
I certify this	and the twelve (12)
preceding pages to	be a true copy of

the Reasons for Judgment of

his Honour Justice Wilcox.

I '

-

-

/

:

e

t

a

i

c

o

s

s

A

I ."

Date :

10 August 1988

.

4

IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY	) N.S.W. G1031 Of 1988

GENERAL DIVISION 1

ON APPEAL FROM A SINGLE
JUDGE OF THE FEDERAL

COURT OF AUSTRALIA

BETWEEN:  AUSTRALIAN BROADCASTING TRIBUNAL

Appellant

AND :  ALAN BOND

First Respondent

AND :  BOND MEDIA LIMITED

Second Respondent

AND :  BOND CORPORATION HOLDINGS LIMITED

Third Respondent

AND :  QUEENSLAND TELEVISION LIMITED

Fourth Respondent

AND :  CONSOLIDATED BROADCASTING SYSTEM (W.A.) PTY
LIMITED

Fifth Respondent

AND :  NORTHWEST RADIO PTY LIMITED

Sixth Respondent

AND :  DARWIN BROADCASTERS PTY LIMITED

Seventh Respondent

CORAM:	LOCKHART, WILCOX & PINCUS JJ.
DATE :	10 WLUOST \ v a

REASONS FOR JUDGMENT

PINCUS 3. :

This is an appeal from orders made by a judge of this court in an application under the Administrative Decisions

i

I '

..

l (Judicial Review) Act 1977. That application, as finally amended,

I , .

i	challenged a number of declsions made by	the Australian
!

Broadcasting Tribunal (the appellant) principally being decisions made in the course of conducting an inquiry under the Broadcasting

Act 1942 ("the Act").	In the result, the learned primary judge
-

I	found it necessary to deal with only one of the matters raised
1
before him, namely whether the inquiry was authorised by the Act.
He did not deal with the attacks upon decisions made in the course
I	I ,
I -

of conducting the inquiry and the latter were not discussed in	..
this Court.	!
The appellant seeks to have set aside a declaration, made by the primary judge, that the inquiry mentioned is not authorised by the Act; his Honour also granted aqbinjunction. His reasons dealt principally with the question whether the inquiry was authorised by s.l7C(l) of the Act, although some reference was made to the possibility of its being authorised by s.l7C(3). In this Court, the appellant relied only on the contention that the
I .
inquiry was authorised	by the former provision and disclaimed any
reliance on sub-s.(3).

Section 17C of the Act was inserted by Act NO. 66 of i

1985 and, so far as relevant, reads as follows: ' _ I

"(1) Where the Tribunal receives an applicatlon

under this Act requesting the exercise of any of its substantive powers, or proposes to exercise any of its substantive powers otherwise than on such an application, the Tribunal shall hold an inquiry into the requested or proposed exercise of the power.

(2) where the Tribunal proposes, either on its own

initiative or at the request of any person,	to	5 '
I.

exercise any of its powers, other than a

substantive power, under this Act or the

regulations, the Tribunal may its in

discretion hold an Inquiry Into the proposed

exercise of the power.

( 3 ) The Tribunal may, in its discretion, hold an

inquiry into -

L .

(a) any matter relating to the operation of !

this Act;	, .
I

(b) any matter relating to broadcasting

services; or	I ,
!
, - ;

(c)	any other matter, being a matter with respect to which the Parliament has power to make laws by virtue of paragraph 51(v) of the Constitution, that, in the opinion
of the Tribunal, relates directly or
indirectly to a matter referred to in

paragraph (a) or (b).

( 4 ) A reference in sub-section ( 3 ) to a matter shall be read as not including a reference to

-

b

(a)	a matter relating to the Co'rporation or
the Servlce or to the affairs or
operations of the Corporation or the

Service; or

(b) a matter in respect of which the Tribunal

is required or permitted to hold an inquiry by virtue of any provision of this Act (other than sub-section ( 3 ) or sub-section 18(2)).

(5) Subject to sub-section ( 6 1 , an inquiry under sub-section (1) shall be held in accordance 1 .I

with this Division and the regulations."	!
i

The reference to exercise of substantive powers is

explained by s.l7A(2), which reads in part as follows:

"A reference in this Division to a substantive power

of the Tribunal is a reference to a power of the

Tribunal -

(a) to determine program standards;

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

l

4 .

(c)	to vary, revoke or impose a condition of a
licence under section 85, otherwise than in

accordance with sub-section 85(4);

(d) to sub-section 88(1), (le) or (1C);	suspend	or revoke a licence under
...

I,

Section 85, referred to in s.l7A(2)(c), gives the

Tribunal power to vary or revoke certain licence conditions or to

impose further conditions, and s.08 empowers the Tribunal to

suspend or revoke a licence where, as to licences of the relevant

sort -

' l . . .	it appears to the Tribunal that	it is advisable
in the public interest	to do so, having regard	only

to the following matters or circumstawes:

I

...

(ii) the Tribunal is satisfied that the licensee -

(A) is no longer a fit and proper person to
hold the licence; or

(B)  no longer has the financial, technical I:

and management capabilities necessary i

provide to an adequate and . I

comprehensive service pursuant to the licence or, in the case of a

re-broadcasting licence or a

re-transmission licence, to provide the

service to which the licence relates;

or i

11   I _

...

The respondents other than Mr Alan Bond are companies associated with him, and they hold	various licences under the Act
which are subject to the provisions just referred	to.

I

I

5.

The circumstances in which the Inquiry the subject of this litigation came to be held are recounted below, and it is enough to say at the outset that the event whlch prompted the inquiry was an interview the respondent Mr Bond is said to have given on the programme "A Current Affair" on 2 2 January 1988, it being suggested that remarks he then made were inconsistent with evidence given at a previous Tribunal inquiry. The respondents initially approached this Court to complain of procedural errors alleged against the appellant, but, as has been mentioned,

succeeded in having the whole inquiry held to have been

unauthorised, a point which first emerged during the course of

interlocutory proceedings in this Court.	!
Since no application had been made,bto the Tribunal requesting the exercise of any of its substantive powers, the issue before the Court was and is whether the inquiry is authorised by the second branch of s.l7C(l). The respondents succeeded before the primary judge on the basis that it was shown that the Tribunal did not propose to exercise any of its

substantive powers.	It was held that the	appellant "must have
formed at least a	tentative intention to exercise one of	its

substantive powers before it can be said that it 'proposes to
exercise' such a power".	The primary judge pointed out that
s.l7C(1) is mandatory in its terms and that it would	be an

inconvenient result that the Tribunal should be obliged to hold an
inquiry "once it gives preliminary consideration to the question

whether it should exercise one of its substantive powers ..."

\ '

His Honour referred to certain correspondence and	, I
, '

. *.

h	.	6.	' .
i
I..

statements made by the Chairman of the Tribunal as showing that

"the Tribunal has not formed any intention of the requisite klnd".

Because of the view I have formed as to the proper

construction of these provisions, it is necessary to make only

brief reference to the	material relied on in support of the
conclusion just mentioned.	By a letter from the appellant's

solicitor to the solicitors for the respondents of 25 May 1998, the latter were told that the appellant's solicitor understood "that the Tribunal has not formed any intent to exercise any substantive power adversely to the interests of the licensee at this stage." Then on 27 May the Tribunal, which was constituted

for the purposes of the inquiry by a "Division" (a term explained

. .

below) consisting of three designated membets, made slmilar	I
, .

remarks, by its Chairman. Lastly, after proceedings in this Court . I

had begun, the appellant's	solicitor advised the respondents'
solicitor by letter that ".	. . the inquiry is investigative and no

present intention exists on the part of the Tribunal to exercise substantive powers adversely to your clients' interest, though the possibility that it may do so at a later stage remains open". In the view which I take, the statements made after the purported

institution of the inquiry, describing its character, are of

subsidiary importance; the central point is whether the statutory condition precedent to the holding of a s.l7C(l) inquiry was fulfilled.

Regulations as contemplated by s.l7C(5) have been made:

See the Australian Broadcasting Tribunal (Inquiries) Regulations,

which were notified in the Gazette of 23 May 1986; s.17C

I

commenced operation on 1 January 1986.

The regulations just mentioned deal only with s.l7C(l) inquiries and set out a detailed procedure for holding such inquiries, commencing by creating an "inquiry file" (regulation

6(2)) giving notice to any affected licensee (regulation 7 ) and

I

I ,

giving public notice (regulation 9). Notice of the "issues to be	l '
considered in the inquiry" must be specified in the public notice, and that was done here, as is further mentioned below.

, i '

The suggestion was made during the hearing that help might be derived, in construing s.17C, from the regulatlons referred to in sub-s.(5). That does not appear to be so; those regulations were made after s.17C became law gnd cannot throw light on the intention the legislature had in enacting it. It was also said, with more cogency, that the legislative history of	!
s.17C might assist.

The predecessor of the appellant was called the

Broadcasting Control Board.	In 1956 there was inserted in the
then Broadcasting and Television Act	1942 a new s.51 which read in
part:

"(l)	The Minister shall not revoke a licence upon
any ground ... unless he has first received a relation to that ground." report from the Board, upon an inquiry ... in

Section 51(2) then provided for the holding of an-inquiry by the Board. It will be noted that that form of provision attacked the

. . 8.

problem from the other end:	it restricted the right to revoke a	<.
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licence, without creatlng a positive	obligation to hold	an
inquiry.

A similar drafting strategy was followed when Act No.

160 of 1977 inserted a 5.89, reading as follows:

"The Tribunal shall not suspend or revoke a licence
on any ground except after holding an inquiry into
the question whether facts exist by reason of which
the licence is liable to suspension or revocation

on that ground."

Section 17C(1) might have been thought to work better in

practice if it had, following the mode of drafting formerly

adopted, forbidden the exercise of a substantive,power, whether on application made or otherwise, without the holding of a public inquiry. But it is not possible to read sub-s.(l) as if it were

so expressed. The task of the Court is to try to give some

sensible meaning to it, if possible, starting from the intractable
fact that it creates an obligation to hold an inquiry where an
application of the kind mentioned is received, or the Tribunal

proposes to exercise a substantive power. Three problems relevant

to the present case arise.

Firstly, there is the question whether, as to the second

llmb of sub-s.(l), the obligation to hold an inquiry arises on the

Tribunal's merely attaining a state of mind.	If "proposes" is
read as equivalent to "intends", one possible meaning	is that once

the intention exists in members' minds, the obligation follows.

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Under s.8(1), the Tribunal conslsts of not less than three, nor more than eight, members; but there may be associate members, under s.11. Further, the Tribunal need not act as a whole, but may be constituted for particular purposes to act in Divisions: s.15C. At a meeting of the Tribunal a quorum is constituted by a majority of the members for the time being	I .
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holding office: s.15B(3). Questions arising are determined by a I - I

majority of the votes of those present and voting, the person

presiding having a casting vote:  s.l5B(7), ( 8 ) . If a Division is

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formed under s.lSC, the quorum is a ma~ority	of the members and
associate members constituting	the Division.

If s.17C, in its second branch, creates an obligation to hold an inquiry when the Tribunal merely attaine a certain state

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of mind, it would not seem to have a very practical operation, nor one consistent with the workrngs of the Tribunal contemplated by the provisions just referred to. It must have been intended that the proposal to exercise a substantive power be overtly manifested

- most simply, by being embodied In a resolution passed by the

requisite majority. Reading all these provisions together, the

intention must have been that the Tribunal would decide to	institute such an inquiry by formulatlng a proposal, not that it	should be obliged to inquire when a majority of members had a	I_/
certain state of mind.	. ,
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Putting that in another way, the Tribunal has no single

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mind and what it proposes consists in what it, by a decision made

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by it, announces that it has in mind to do or to consider doing.

It follows that statements made by members of the

Tribunal, even the Chairman, at the hearing of an inquiry

purporting to have been instituted under s.l7C(l), are not direct

evidence of the initial existence of the necessary proposal. Such	i
statements merely evidence	the then states of mind of the members

composing the Division conducting the inquiry. It follows further that, unless there has been an appropriate resolution of the Tribunal, one cannot postulate of it that it proposes to exercise

any of its substantive powers, within the meaning of sub-s.(l).

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The second problem, being that principally agitated

before the learned primary judge, is how firm the proposal must t ' .-

be. It was argued below, and before US, by counsel for the respondents, that	I :
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there could be no proposal unless there were at

least a provisional intention to exercise a substantive power, as

was held by the primary judge. Counsel for the appellant, on the other hand, contended that it was enough that the Tribunal "put forward for consideration the exercise of" a substantive power.

The strength of the respondents' contention is simply

that "proposes to exercise" has as its usual meaning "intends to

exercise". The contrary contention has in its favour a matter

dealt with in discussing the first problem, i.e. the

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impracticabillty of treating the obligation to hold	an Inquiry as	..
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being created by the mere attainment of a state of mind by some

members (presumably, a majority) of the Tribunal.

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%ut there IS another disadvantage of the respondents' reading, that, particularly where the proposed exercise is of a I .

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k i d a dverse to a licensee, it wou Id seem to be unfair that the case should be half-decided against it before the inquiry starts.

The attitude exemplified by remarks of the Chairman of the

Tribunal in the course of the hearing being considered appears to be a more appropriate one, from the point of view of conformity to the principles of natural justice, namely that the Tribunal

!	embarks on the inquiry for the purpose of considering the exercise of a substantive power such as revocation of a licence, but
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without having formed any intention to do so. If a construction avoiding the unfairness I have mentioned is reasonably open, one should on that account incline to favour it.

It is convenient to defer a statement of my conclusion on this second aspect until the third is discussed.

The - last of the three problems debated before us was the

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relationship between sub-s.(l) and sub-s.(3). It was contended on

behalf of the respondents that the Tribunal could not, under sub-s.(3), Inquire into matters relevant to the conduct of an individual licensee with a view to determining whether anything

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should be done about its conduct, but could only examine general
matters such as the question whether the Act's	provisions appeared

to be operating properly, or broadcasting services generally.

If the respondents are right about both sub-sections (1) and (3) then there is a gap: the Tribunal cannot hold a merely preliminary inquiry into the conduct of a particular licensee under sub-s.(3) because that relates to broader questions and it cannot hold such an inquiry under sub-s.(l) because its right to

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do that depends upon its having	an Intention to exercise a
substantive power.
It follows from sub-s.(l)(b) that the Tribunal cannot, under sub-s. ( 3 1 , hold an inquiry into a matter covered by sub-s.(l). I do not agree, however, that the Tribunal cannot	I '
engage in any inquiry under sub-s.(3)	which includes within its
scope the conduct of a particular licensee; its doing	so may have

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nothing to do with any proposal to exercise a substantive power	. .I ..
but be engaged in merely to inform itself.

It is implicit in these provisions, in my opinion, that

once any question arises of	the exercise of a substantive power,
the Tribunal should not proceed under sub-e.(3) but under	L -
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sub-s.(l), formulating a proposal to exercise a substantive power or powers and then proceeding as required by the regulations. Despite the primary meaning of the words "proposes to exercise" (namely, "intends to exercise"), it is my view that such a proposal may be formulated when the Tribunal has not even a provisional view as to whether any substantive power will, In the
end, be exercised, as long as the proposal is put forward in good

faith. That construction harmonizes with the way the word

"proposes" is used in sub-s.(2) of s.17C.

It follows that, in my respectful opinion, the learned primary judge was in error in accepting the submission of counsel	, .
for the respondents (the applicants below) that the Tribunal had no power to hold a sub-s.(l) inquiry unless it had first formed a provisional intention to exercise a substantlve power, e.g. revocation of a licence.

Counsel for the respondents initially focussed his

argument on the same point as had been made below, that the

documents indicated that the Tribunal did not have the requlsite intention to exercise a substantive power. He added, however, that if the appellant was right in saying that sub-s. (1) contemplates that the exercise of the substantive power be "put forward for consideration", that has to be done by the Tribunal and the documents showed it had not been done. He said no such proposal as the appellant's argument required had been made.

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Consideration of this point requires some analysis of

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the documents which set the inquiry in train. On.5 February 1988,

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the Tribunal met in Sydney and considered material relating to comments made by Mr Alan Bond in an interview with MS Jana Wendt

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in relation to a defamation settlement. The Tribunal decided that !

"an inquiry should be held to investigate the matter", belng,	' .
presumably, Mr Bond's comments, and that -

"counsel assisting should be engaged who should be	involved in the formulation of the issues to be	considered in the inquiry noting that a notice
under Regulation 9(2)(b) needs to be published within 20 days from the decision to initiate the inquiry."
It was also decided to inform "Bond Media" of the

decision to conduct an inquiry and to issue a news -release.

A letter was written to Bond Media Holdings Ltd. It

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referred to the lnterview wlth Mr Bond and said: “The	Tribunal
has decided to hold an inquiry into the issues raised”.	It also
enclosed a copy of the	news release which began:

“The Australian Broadcasting Tribunal has decided to

hold an inquiry into matters relating to the

Bond-owned radio and television stations.

The decision to hold the inquiry follows the

Tribunal‘s viewing of the unedited tape of an interview given by Mr Alan Bond on the program ‘A Current Affair’ on the Nine Network on 22 January

1988. “

In none of these three documents is any reference made to a proposal to exercise a substantive power. One would have .-

, expected that if the Tribunal had intended to proceed under “ I

sub-s.(l), it might have followed the wording 05 that provision, or at least used equivalent language. I cannot, with respect,

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agree with the view that the minute of the meeting of 5 February evidences a proposal to exercise any of the Tribunal’s substantive powers.

No mention was made of exercise of any power (other than

Tribunal wrote to the solicitors for the respondents enclosing a	the holding of an inquiry) untll 25 February 1988, when the
copy of a notice detailing “the issues to be addressed in the I

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inquiry”. Those issues were:

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“1. Whether anything connected with the payment of !

$400,000 in settlement of a defamation action by

Sir Joh Bjelke-Petersen against Queensland Television Limited has any implications as to the suitability of companies associated with Mr Alan Bond to hold the above broadcasting licences. In this context it will be considered whether Mr Bond and companies associated with him are fit and proper persons to hold the above licences.

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2 . Whether it would be advisable in the public

interest for	the Tribunal to do any of the
following:
(a) suspend any of the said	licences associated

with Mr Bond:

(b) revoke any of the said licences: I ,

(c) impose or vary conditions on any of the said licences.

3 .    Such other matters relevant to the inquiry as the

Tribunal sees fit." !

The notice was published later - more precisely, on 2

March 1988.

The contrast between the nature of the decision made by

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the Tribunal, namely to hold an inquiry to investigate a matter,
and the terms of the second issue, is striking. One cannot, in my

opinion, describe the former as containing any proposal to

exercise substantive power: the second issue stated may	constitute
such a proposal.
It is not of central importance, but should also be noted, that the press release, in speaking of "an inquiry into

matters relating to the Bond-owned radio and television stations", appeared to contemplate a sub-s.(3) inquiry: see the wording of that provision.

There appears to be no need to refer to any of the other

documents, except in a general way; none of them gives any support

to the notion that the Tribunal had proposed to exerclse

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16.

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substantive power, in accord	,ance with the meaning of that notion
as explained above.

Counsel for the appellant argued that it was

inappropriate to decide the case here in accordance with the

respondents' second submission, referred	to above, that	no
proposal putting forward for consideration the exercise of a	' ,	..

substantive power had been made to found the inquiry. It appears

to be true that that precise contention was not put to the learned

primary judge; counsel for the respondents seems there to have

merely argued against the appellant's view and not sought to adopt

it, even as an alternative. In my opinion, however, it would be

wrong to send the matter back for a rehearing, as suggested, on

the ground that the appellant might be able to find some

additional material. After all, the contention that it was	. .
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necessary that there be a proposal put forward for consideration came from the appellant. All counsel for the respondents has done is to insist, correctly in my view, that such a proposal must have

been made by the Tribunal itself, and that (what one could hardly

doubt) it could only be made as a decision or resolution. The notion of putting a matter forward for consideration by merely

taking thought makes little sense.

It was incumbent upon the appellant, if it contended that the collection of documents placed before the primary judge as relevant to the question in issue was incomplete, to remedy the deficiency at that stage. I do not think this Court should decide the case on the basis that there might be some material, in

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support of the proposition that the exercise of substantive power

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was put forward for consideration in a relevant way at a meeting,

which the appellant did not trouble to prove below.

In the end, then, the question becomes whether the

notice as to "issues to be addressed", partially quoted above, shows that the inquiry was lawfully instituted. In my respectful

opinion it does not. The evidence shows that the Tribunal did not

treat the making of such a proposal as sub-s. (1) contemplates as a

function for it to fulfil; all the Tribunal authorised was the holding of an inquiry to investigate a matter. The preparation of

the requisite documents to achieve that purpose was treated as an

administrative problem of a subsidiary kind. If, in the course of that process, a document emerged which implied that there was a

s.l7C(l) proposal, then that did not fill the gap. The proposal

had to be put forward by the Tribunal, which had not purported to

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delegate to any other person power to do so .	l :
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The point is by no means merely a technical one. For

the Tribunal to avail itself of the compulsory powers of inquiry permitted by sub-s.(l) and summarized in the reasons of Lockhart

J., the exercise of which powers may produce penalties for those

unwilling to co-operate, it is necessary that the	statutory
condition be fulfilled. The	Tribunal has to commit itself to a
proposal.	What was done here was to start an inquiry without

(either in the strong or weak sense of the word "propose")

fulfilling the statutory condition. The statement of issues does not provide any evidence that the condition was fulfilled, but merely suggests that officers of the appellant, rather too late, perhaps appreciated that a sub-s.(l) inquiry had to be based upon

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a proposal to exerclse a substantlve power.

It should be added that the error made by the appellant

was, in my view, contributed to by the content of the regulations.

They set out in detail the procedure to be followed in a sub-s. (1) inquiry instituted on the basis of a proposal to exercise a substantive power, but omit any reference to the central point of such an inquiry. The regulations cannot, of course, have the effect of deleting a condition mentioned in sub-s.(l).

The only other point argued was that the appellant complalned that its jurisdiction was challenged very late and

that the learned primary judge should not have (as he did)

extended the time for commencement of bhe respondents’

proceedings. The record discloses that there may have been some misunderstanding, arising from incomplete expression of the

parties’ respective positions concerning the question of extension of time, but the primary judge regarded the point as not being in issue. I am of opinion that he was plainly entitled to do so and that the question whether the discretion was properly exercised, no positive opposition having been put forward below,

expressed in the reasons of Lockhart J. as to that aspect of the	requires no extensive discussion. I agree with the views
case.

For reasons other than those given by the learned

primary judge, I would hold the inquiry to have been unauthorized by the only provision relied on, viz., s.l7C(l) of the Act, and

would therefore dismiss the appeal. certlfy that this and the I7 preceding

panes ar2 a true copy of the reasons for

judgment hcrein of His Honour

Mr. Justlce Pincus ,v r,!. , f, ,- . .

Associate

Dated

Counsel for the Appellant: Mr. R. Burbidge P.C. with
Mr. L. Katz

:

Solicitor for the Appellant:	Australian Government Solicitor	' ..
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Counsel for the Respondents:	Mr. A.B. Shand Q.C. with	!
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Mr. D.K. Catterns
Solicitors for the Respondents:	Blake Dawson Waldron	:
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Date of Hearing:	4, 5 July 1988
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Date of Judgment:	10 August 1988
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