Australian Capital Equity Pty Ltd v Beale

Re: AUSTRALIAN CAPITAL EQUITY PTY. LTD.
And: ROGER DAVID BARNARD BEALE, SECRETARY TO THE DEPARTMENT OF TRANSPORT AND
COMMUNICATIONS; ROBERT LINDSAY COLLINS, MINISTER OF STATE FOR TRANSPORT AND
COMMUNICATIONS and THE COMMONWEALTH OF AUSTRALIA
No. WA G14 of 1993
FED No. 141
Number of pages - 39
Legislation
(1993) 114 ALR 50
(1993) 41 FCR 242
(1993) 30 ALD 849 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Lee J.(1)

CATCHWORDS

Legislation - delegated legislation - "instrument" - power to revoke - Acts Interpretation Act 1901 s.46(a); sub-s.33(3).

Acts Interpretation Act 1901 ss.32, 42A, 46A, 48-50, 46(a); sub-s.33(3)

Acts Interpretation Act 1904 s.9A

Administrative Decisions (Judicial Review) Act 1977 sub-s.3(1)

Broadcasting Services Act 1992 sub-s.34(1)

Customs Act 1901

Interpretation Act 1889 (UK) s.31; sub-s.32(3)

Judiciary Act 1903 s.39B

Radiocommunications Act 1983 ss.18, 19, 24, 24A, 25, 66, 86, 92A; sub-ss.9(2), 9(10), 9(12), 16(4), 18(1), 18(3), 19(1), 20(1), 20(2), 20(4), 20(5), 20(6), 24(1A), 24A(1), 24A(3), 25(3), 25(7), 26(6), 28(3), 34(2), 34(4), 38(9), 40(4), 41(8), 41(9), 41(10), 42(6), 66A(2), 66A(5), 66A(6), 86(1), 86(5), 86(7), 92A(1); Pt.IV (ss.17-20); paras.24(2)(c), 25(1)(c), 42(1)(c), 66(1)(b)

Statutory Rules Publication Act 1903 s.2

Radiocommunications (Licensing and General) Regulations Reg. 2, 12A; Items 66, 67 (Schedule 1);

Bennion, Statutory Interpretation

Craies on Statute Law (7th Ed.)

Pearce, Statutory Interpretation in Australia (3rd Ed.)

Commonwealth of Australia Gazette

Azevedo v. Secretary, Department of Primary Industries and Energy (1992) 35 FCR 284

Chittick v. Ackland (1984) 1 FCR 254

Collector of Customs (NSW) v. Brian Lawlor Automotive Pty. Ltd. (1979) 24 ALR 307

Edenmead Pty. Ltd. v. Commonwealth of Australia (1984) 4 FCR 348

Nashua Australia Pty. Ltd. v. Channon (1981) 36 ALR 215

YZ Finance Co. Pty. Ltd. v. Cummings (1964) 109 CLR 395

HEARING

PERTH, 2 March 1993

#DATE 18:3:1993

Counsel for the Applicant: D.R. Williams, QC

D.H. Bloom QC, W.S. Martin

Solicitors for the Applicant: Clayton Utz

Counsel for the Respondents: J.D. Heydon, QC

R.L. Miere

Solicitor for the Respondents: Australian Government

Solicitor

Counsel for Applicant for Leave to Appear as Amicus Curiae: N.P. Hasluck, QC

G.R. Donaldson

Solicitors for Applicant for Leave: Mallesons Stephen Jaques

ORDER

The Court orders that:

The Matter to be stood over to date to be fixed for submission of minute of appropriate orders or directions.

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

JUDGE1

LEE J. Part IV (ss.17-20) of the Radiocommunications Act 1983 ("the Act") empowered the Minister to prepare a spectrum plan and frequency band plans in respect of the range of frequencies on which radiocommunications are capable of being made. A spectrum plan prepared by the Minister pursuant to s.18 of the Act was required to divide the range of frequencies into a number of frequency bands and assign a designation to each band and specify the general purpose or purposes for which each band may be used. Section 19 of the Act enabled the Minister to prepare for each frequency band a plan, not inconsistent with the spectrum plan, which made provision for the purpose, or purposes, for which the band may be used, including provisions specifying the purpose for which any part of the band "including any particular frequency or frequency channel" may be used. Pursuant to sub-ss.18(1) and 19(1) spectrum and frequency band plans were to be prepared by instruments in writing.

By sub-ss.20(5) of the Act, ss.48-50 of the Acts Interpretation Act 1901 ("Interpretation Act") applied in relation to spectrum and frequency band plans as if in those sections of the Interpretation Act references to regulations were references to plans and references to a regulation were references to a provision of a plan. By sub-s.20(6) of the Act plans were deemed to be statutory rules within the meaning of the Statutory Rules Publication Act 1903 ("Statutory Rules Act").
By an instrument dated 7 December 1990 under the hand of the Parliamentary Secretary to the Minister for Transport and Communications and entitled "Radiocommunications - Australian Spectrum Plan", a spectrum plan was notified in the Commonwealth of Australia Gazette ("the Gazette") on 17 December 1990 and published as Statutory Rule No. 413 of 1990. Section 66 of the Act did not permit the Minister to delegate any of the Minister's powers under Pt.IV of the Act. (See para.66(1)(b).)
By an instrument dated 9 June 1988 under the hand of the Minister entitled "Frequency Band Plan under the Radiocommunications Act 1983" notified in the Gazette on 8 July 1988 and published as Statutory Rule No. 181 of 1988, the Minister prepared a frequency band plan entitled the Multipoint Distribution System Band Plan ("the Plan") for the 2076 to 2111 Megahertz ("MHz") and 2300 to 2400 MHz bands ("the band"). In cl.4(1) of the Plan it was stated that the primary use of the band would be for Multipoint Distribution Systems for the transmission of services falling into the following categories:

"1. Text and graphics.

2. Text, graphics and still pictures.

3. Text, graphics, still pictures and sound.

4. Non-entertainment video, which may include (1) (2) and (3).

5. Entertainment video, including pay TV."

In cl.3(1) of the Plan it was provided that channels in the band could be allocated for the purposes set out in Tables 1 and 2 of the Plan. Clause 3(2) of the Plan stated that the services listed in Tables 1 and 2 of the Plan were primary and secondary services respectively. Primary services were described as "Fixed Services (Multipoint Distribution Systems only)" and secondary services as, inter alia, "Fixed Services (non-Multipoint Distribution Systems)".
A Multipoint Distribution System, or MDS, was defined in cl.2(1) of the Plan as "a Fixed Service comprising a Multipoint Distribution Station, at least four Multipoint Distribution Station Receivers and any number of Multipoint Distribution Repeater Stations, as required". By cl.2(2) of the Plan any expression used in the Plan and defined in the Radiocommunications (Licensing and General) Regulations ("the Regulations") was to have the same meaning in the Plan as in the Regulations unless a contrary intention appeared in the Plan. The terms "multipoint distribution station" and "multipoint distribution repeater station" were described in items 66 and 67 of Schedule 1 of the Regulations and "multipoint distribution station receiver" defined in reg.2. A "Fixed Service" was not defined in the Act, Regulations or Plan but the definitions of "mobile service", "ambulatory service", "land station" and "fixed station" contained in reg.2 suggested that a Fixed Service would be a service consisting of stations established at fixed points on land.
The manner of establishing frequency channels and the division of channels into Groups A and B was set out in cl.5 of the Plan.
In sub-cll.4(2) and (3) of the Plan it was provided as follows:

"4. (2) During Stage I (1988 to 1990) frequencies may be assigned for services in categories 1 to 4, up to a total of 13 frequencies at each location, with 6 frequencies at each location reserved for Stage II.

(3) During Stage II (1990 plus) up to 19 frequencies may be allocated at each location for services in categories 1 to 5."

The Plan was amended by instruments dated 13 December 1990, 3 June 1992 and 23 September 1992 under the hand of the Minister. The amendments were published as Statutory Rules No. 449 of 1990 and 156 and 305 of 1992 on 21 December 1990, 3 June 1992 and 30 September 1992 respectively. In each instrument the Minister stated that he was "satisfied that making...amendments (to the Plan) (was) a matter of urgency". Sub-sections 20(1) and (2) of the Act required the details of a plan proposed to be prepared to be published, representations in connection therewith to be invited from interested persons, and due consideration of those representations to be carried out by the Minister, but sub-s.20(4) stated that those sub-sections did not apply if the Minister was satisfied that preparation of a plan was a matter of urgency. In making the instruments referred to above in the manner described, the Minister apparently considered that sub-s.33(3) of the Interpretation Act provided an implied power to amend the plan and that amendment of the plan was equivalent to preparation of a plan for the purpose of sub-s.20(4).
Sub-clauses 4(2) and 4(3) were amended and cl.4A inserted by the amendments to the Plan. The effect of the amendments to sub-cll.4(2) and 4(3) was that a frequency could not be "assigned" to transmit the service of "entertainment video, including pay TV" until the day specified in a Proclamation made under sub-s.24A(3) of the Act. As will be referred to later, the day specified in that Proclamation was 1 October 1992. Clause 4A provided that no channel in the band could be "allocated" for the transmission of a service permitted by the Plan unless the application under s.24 of the Act for a licence to operate the transmitter had been lodged after 2 June 1992 and the licence granted after 4 October 1992. The Act contained no express provision for the assignment of frequencies or allocation of channels but para.25(1)(c) of the Act provided that a licence to operate a transmitter was subject to a condition that the holder of the licence not operate the licence except on a frequency, or on a frequency channel, specified in the licence.
Section 24 of the Act enabled the Minister, in the Minister's discretion, to grant to an applicant a licence to operate a radiocommunications transmitter. Paragraph 24(2)(c) required the Minister, in exercising that power, to have regard to whether or not the Minister was satisfied that the proposed operation of the transmitter was in accordance with the appropriate frequency band plan.
Section 24A of the Act qualified the Minister's power to grant a licence under s.24 by providing that until s.24A ceased to have effect according to a Proclamation made under sub-s.24A(3), the Minister was prohibited from granting a licence that would permit the holder of the licence to operate a radiocommunications transmitter for the purpose of transmitting television programmes pursuant to a "domestic pay-television agreement" as defined in sub-s.24A(1). Sub-section 24A(3) provided that the day to be proclaimed for the purpose of that sub-section could not be a day before 1 September 1990. A Proclamation was published in the Gazette on 25 October 1991 determining that s.24A of the Act would cease to have effect from 1 October 1992. The effect of the restriction of the Minister's powers imposed by s.24A was a restraint upon the delivery of "pay TV" services to domestic premises but no restraint upon the delivery of such services to receivers situated in other premises.
In addition to the restriction imposed by s.24A of the Act, sub-s.24(1A), introduced on 5 October 1992, further limited the Minister's power if the application related to a part of the spectrum assigned to the Australian Broadcasting Authority under sub-s.18(3) of the Act and the Authority had not made a decision under sub-s.34(1) of the Broadcasting Services Act 1992. It was not suggested that this sub-section imposed any limitation on the Minister's power to grant the licences to which this application relates.
No issue arose in these proceedings as to whether the power given to the Minister by s.19 of the Act enabled the Minister to restrict the discretion granted to him under s.24 of the Act.
Section 92A of the Act, introduced on 5 October 1992, provided the Minister with a discretion to establish a "price-based allocation system" for granting specified licences under the Act. Section 92A read as follows:

"92A.(1) The Minister may determine in writing a price-based allocation system for granting licences of a kind identified in the regulations.

(2) The system so determined:

(a) subject to paragraph (b), may apply generally or in respect of a particular area or frequency; and

(b) does not apply to a frequency within a part of the spectrum assigned to the ABA under subsection 18(3) except in accordance with a decision of the ABA under subsection 34(1) of the Broadcasting Services Act 1992; and

(c) may require an application fee.

(3) If a licence is granted in accordance with a system so determined, the Minister must publish in the Gazette the name of the successful applicant and the amount that the applicant agreed to pay to the Commonwealth for the grant of the licence."

Regulation 12A, which also came into force on 5 October 1992, provided as follows:

"12A. For the purposes of subsection 92A(1) of the Act, a licence granted under the Act for a multipoint distribution station referred to in column 2 and described in column 3 of item 66 in Schedule 1, is a licence of a kind for which the Minister may determine a price-based allocation system."

In item 66 of Schedule 1 of the Regulations a multipoint distribution station is described, inter alia, as a station that transmits to at least four multipoint distribution station receivers. The item further describes such stations as class A and class B stations. A class B station is one which, inter alia, transmits services in the category of "entertainment video, including pay TV".
On 1 October 1992 and, therefore, in advance of the power conferred by s.92A of the Act on 5 October 1992, the Minister, in a document entitled "Radiocommunications (Allocation of Multipoint Distribution System Licences) Determination (No. 1)", determined that a tender-based allocation system would be applied to the granting of licences for multipoint distribution stations ("Determination No. 1"). Determination No. 1 stated that it applied generally for the granting of "MDS licences". An "MDS licence" was defined as a multipoint distribution station class A or B licence in respect of a frequency in the 2076 to 2111 MHz or 2300 to 2400 MHz band. Sub-clause 8(1) of Determination No. 1 stated that "an MDS licence will be granted to the applicant who tenders the highest amount for the licence by sealed tender on payment of that amount". Determination No. 1 was not published in the Gazette.
On about 9 December 1992 "press notices" invited tenders to be submitted for MDS licences. On 23 December 1992 the following notice was published in the Gazette under the heading "Invitations to tender, etc.":

"The Department of Transport and 29.1.93 Communications is requesting tenders for the price based allocation of Multipoint Distribution Services (MDS) Licences. (sic) The MDS licences will be able to be used for any purposes specified in the MDS Band Plan, including for the terrestrial provision of narrowcast pay television. Tender. DC: TR11. Inquiries, Mr S. Mavros, tel. (06) 274 7959 N.N.-9221583".

On 7 January 1993 the Minister, in writing, revoked Determination No. 1 and at the same time under the heading Radiocommunications (Allocation of Multipoint Distribution System Licences) Determination (No. 2) ("Determination No. 2") determined another tender-based allocation system for granting multipoint distribution station licences. Determination No. 2 read as follows:

"...

Definitions

2. (1) In this Determination, unless the contrary intention appears: "the Act" means the Radiocommunications Act 1983; "MDS licence" means a multipoint distribution station, Class A or B licence in respect of a frequency in the 2,076 to 2,111 MHz or 2,300 to 2,400 MHz band; "the Secretary" means the Secretary to the Department, and includes any person authorised in writing by the Secretary to carry out any of the Secretary's functions in this Determination.

(2) Unless the contrary intention appears, expressions used in this Determination have the same meaning as in the Radiocommunications (Licensing and General) Regulations. Application

3. (1) Subject to subclause (2), this Determination applies generally for the granting of MDS licences.

(2) This Determination does not apply to:(a) an MDS licence granted to a person on or after the commencement of this Determination in relation to a station that the person was authorised to operate under an MDS licence held by the person, being a licence that was in force before the commencement of this Determination; or

(b) an MDS licence granted after the commencement of this Determination in relation to an application for that licence lodged on or before 3 June 1992; or

(c) an MDS licence granted to a person after the commencement of this Determination in relation to a station that the person was authorised to operate under an MDS licence held by the person, being a licence that was granted in accordance with this Determination.

Invitation to tender

4. (1) The Secretary may, by notice in the Gazette, invite tenders for an MDS licence.

(2) The notice must specify:

(a) the area to which the licence will relate; and

(b) the frequency to which the licence will relate; and

(c) the date and time by which, and the place at which, tenders must be lodged; and

(d) the manner in which tenders may be lodged.

(3) The Secretary may, by notice in the Gazette, extend or further extend the period specified under paragraph 4(2)(c).

(4) An extension of the period specified under paragraph 4(2)(c) must be made at least 14 days before the end of that period.

(5) There may be more than one further extension of the period specified under paragraph 4(2)(c). Tenders

5. (1) Any tender made to the Secretary must:

(a) be in writing; and

(b) be in a sealed envelope with the name of the applicant, a description of the licence tendered for and the words 'Tender for MDS licence' appearing on the front of the envelope; and

(c) contain a deposit of 5 per cent of the amount bid.

(2) No reference to the amount of tender must appear on the outside of the envelope in which tenders are contained.

6. (1) Tenders must not be opened:

(a) until after the date and time referred to in paragraph 4(2)(c); and

(b) except in the presence of at least two departmental officers.

7. (1) Before the opening of a tender a bid registration number must be allocated to it.

(2) A list of allocated bid registration numbers must be maintained. Allocation of licences

8. (1) Subject to this paragraph, an MDS licence must be granted to the applicant who tenders the highest amount for the licence by sealed tender on payment of that amount.

(2) An applicant who:

(a) tenders the highest amount for the licence and fails to pay that amount within the period specified in subclause 9(2); or

(b) fails to comply with clause 5; will be deemed not to have tendered for the licence.

(4) A reserve amount for tenders may be determined by the Secretary in writing before the tenders for the licence are called.

(5) An MDS licence must not be granted if the highest tender is less than any reserve amount.

(6) If two or more applicants tender the highest amount for the licence, the bid first occurring in the list of bid registration numbers must be selected.

(7) If

(a) no tender is received in response to a notice under subclause 4(1); or

(b) no tender that is received is at less equal to the reserve amount;

a licence may be granted upon application under section 24 of the Act as if this determination had not been made. Notice to successful applicant

9. (1) The Secretary shall, by notice, inform the applicant who tenders the highest amount for an MDS licence, that he or she is the successful applicant and that the licence will be granted to the applicant upon compliance with clauses 5 and 9(2).

(2) An applicant who receives a notice from the Secretary under subclause (1) shall pay the amount bid by that applicant within 28 days of the date of the notice.

(3) In addition to other methods of giving a notice to a person, a notice under subclause (1) may be given to an applicant by facsimile transmission.

10. Upon receipt of the successful applicant's amount bid under clause 9, the Minister, or an officer authorised in writing by the Minister for the purposes of this clause, must grant an MDS licence to that applicant."

Determination No. 2 was published in the Gazette on 20 January 1993.
On 18 January 1993 a Special Gazette was printed to publish the following notice:

"TRANSPORT AND COMMUNICATIONS AN OPPORTUNITY TO PROVIDE MULTIPOINT DISTRIBUTION SERVICES (MDS) (sic) INVITATION TO TENDER FOR MDS LICENCES This Gazette Notice meets the formal requirements under Radiocommunications (Allocation of Multipoint Distribution Service (sic) Licences) Determinations No. 1 of 1992 and No. 1 of 1993 and supplements information in the Gazette Notice of 23 December 1992 and the press notices of 9 December 1992. MDS licences are now available under a price-based system. The Department of Transport and Communications is requesting tenders for the price-based allocation of MDS licences. The MDS licences will be able to be used for any purposes specified in the MDS Band Plan, including for the terrestrial provision of narrowcast pay television.

Interested parties are advised to obtain the MDS Information Paper from the address below. In addition to outlining the requirements for tenders, the paper gives background information to Multipoint Distribution Services. (sic) Tenders that are not in accord with the required procedures will not be considered.

The specified locations and the number of MDS licences available are:

Sydney ( 6) Canberra (16) Melbourne ( 6) Alice Springs (19) Brisbane (15) Gold Coast (19)* Perth (14) Cairns (18) Adelaide (17) Newcastle (19) Darwin (18) Wollongong (19)* Hobart (18)

* Special siting requirements may be necessary due to proximity to a high density MDS service area. The frequencies to which this tender relates lie within the bands 2076 - 2111 MHz or 2300 - 2400 MHz as specified in the MDS Band Plan. On application to the Department, other locations will be considered for a future price-based allocation process.

Enquiries and requests for the MDS Information Paper should be directed in writing to: Dr Neil Primrose

A/g First Assistant Secretary Radiocommunications Division Department of Transport and Communications GPO Box 594

CANBERRA ACT 2601

Telephone: (06) 274 6622

Facsimile: (06) 274 6524

Written bids, marked Commercial-in-Confidence, must be received in the Department by no later than c.o.b. 29 January 1993 at:

Department of Transport and Communications Tender Box

Benjamin Offices

Level 2 (Ground Floor)

Blue Building (No. 5)

Cnr College St and Benjamin Way BELCONNEN ACT 2617

Any queries you may have concerning the tender process should be directed to Mr Mavros on (06) 274 7959."

("the Invitation to Tender".)

The applicant lodged a tender for the issue of twenty-two MDS licences in response to the Invitation to Tender.
On 29 January 1993 a special Gazette was printed to publish the following notice:

"Commonwealth of Australia

Radiocommunications Act 1983 Radiocommunications (Allocation of Multipoint Distribution System Licences) Determination (No. 2) Revocation of Invitation to Tender I, Roger David Barnard Beale, the person for the time being holding the office of Secretary to the Department of Transport and Communications, acting under subclause 4(1) of the Radiocommunications (Allocation of Multipoint Distribution System Licences) Determination (No. 2) and subsection 33(3) of the Acts Interpretation Act 1901, hereby revoke:

(a) the request for tenders for the price based allocation of Multipoint Distribution Services (MDS) licences on page 3888 of the Commonwealth of Australia Gazette No. PD51 of 23 December 1992; and

(b) the Invitation to Tender for MDS Licences contained in Commonwealth of Australia Gazette No. S 18 of Monday, 18 January 1993. (Signed)

Roger Beale

Acting Secretary to the

Department of Transport and Communications 28 January 1993"

The notice treated the request for tenders published in the Gazette on 23 December 1992 in respect of Determination No. 1 as having continuing effect in respect of cl.4(1) of Determination No. 2 notwithstanding that the allocation system to which the request for tenders related, contained in Determination No. 1, had been revoked by the Minister on 7 January 1993.
The applicant was advised by letter that the Minister had announced "the Government's intention to defer the allocation of broadcast pay TV licences using Multipoint Distribution Services (sic) (MDS). Accordingly, the Invitation to Tender for MDS licences previously published in the Commonwealth of Australia Gazette and the press has been revoked." The letter went on to suggest that the applicant should contact the Department to arrange for the return of its tender documents. Pursuant to the Administrative Decisions (Judicial Review) Act 1977 ("Judicial Review Act") the applicant now seeks an order to review the Minister's decision not to consider and determine tenders lodged pursuant to that Invitation to Tender and under s.39B of the Judiciary Act 1903 the applicant seeks orders directing the Minister to determine the tenders in accordance with the procedures set out in Determination No. 2.
By consent an interim order was made that no step be taken by the Minister, or the Commonwealth, to give effect to the purported termination of the tender process until further order of the Court and that a preliminary question as to the statutory power of the Minister, or his delegate, to revoke the Invitation to Tender be determined at an expedited hearing before other questions raised in the application were dealt with.
When that issue came on for hearing on the 2nd instant application was made by Time Warner Australia Pay T.V. Pty. Ltd. ("Time Warner") for leave to be given to enable counsel to appear as amicus curiae and make submissions to the Court on the limited question of the form of appropriate orders if the applicant succeeded in its application. A director of Time Warner, Hollis, deposed that Time Warner had prepared and intended to lodge on 29 January 1993 a tender for MDS licences and refrained from doing so when the Minister published the announcement that the Invitation to Tender for such licences had been revoked. Although it was argued by the applicant that a grant of leave to counsel for Time Warner to appear as amicus would be premature, I considered that to do so without further delay may reduce the prospect of Court resources being applied to other litigation and could provide other parties having an interest similar to that of Time Warner with the opportunity to place before the Court any submissions they may wish to make relevant to the question of relief if the applicant succeeded in its application.
On the hearing of the preliminary issue the applicant submitted that the purported revocation of the Invitation to Tender by the Secretary was beyond any power conferred by the Act. The respondents submitted that the Invitation to Tender was an instrument within the meaning of sub-s.33(3) of the Interpretation Act and that either by the operation of that sub-section or, alternatively, by the operation of that sub-section in combination with s.46(a) of that Act an implied power to revoke the Invitation to Tender was conferred by the Interpretation Act.
The respondents did not submit that the terms of the Act and/or of Determination No. 2 provided an implied power to revoke the Invitation to Tender.
It is appropriate to consider first the case of the respondents.
The respondents submitted that the issue of the Invitation to Tender was part of the exercise of the power conferred by s.92A of the Act to determine a price-based allocation system and that the document so issued was an "instrument" within the meaning of sub-s.33(3) of the Interpretation Act and that sub-section conferred the power to revoke it. Alternatively, it was submitted that if the exercise of the power conferred by s.92A was completed by the issue of Determination No. 2, the Invitation to Tender was an instrument issued pursuant to a power conferred by Determination No. 2 and, therefore, by operation of s.46(a) and sub-s.33(3) of the Interpretation Act, power to revoke the subordinate instrument was conferred by those provisions.
Each submission depended upon a conclusion that the Invitation to Tender was an "instrument" within the meaning of that word in sub-s.33(3) of the Interpretation Act.
Sub-section 33(3) and s.46(a) read as follows:

"33...

(3) Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument. ...

46. Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then:

(a) unless the contrary intention appears, expressions used in any instrument so made, granted or issued shall have the same meanings as in the Act conferring the power, and this Act shall apply to any instrument so made, granted or issued as if it were an Act and as if each such rule, regulation or by-law were a section of an Act; ..."

It is instructive to look at the history of the Interpretation Act.
Since commencement of the Interpretation Act in 1901 the preamble has read "An Act for the Interpretation of Acts of Parliament and for Shortening their Language." Sub-section 33(3) which followed the terms of sub-s.32(3) of the Interpretation Act 1889 (UK) read as follows at the commencement of the Act:

"33.(3) Where an Act confers a power to make any rules, regulations or by-laws the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to rescind, revoke, amend, or vary such rules, regulations or by-laws."

In 1941 the sub-section was amended by omitting the words "any rules, regulations or by-laws" and replacing them with the words "grant or issue any instrument (including rules, regulations or by-laws)".
The words inserted in sub-s.33(3) in 1941 had been part of s.32 of the Interpretation Act since the commencement of the Act at which time it read as follows:

"32. Where an Act confers power to make, grant, or issue any instrument (including rules, regulations, or by-laws) expressions used in any such instrument shall, unless the contrary intention appears, have the same meanings as in the Act conferring the power." That section followed s.31 of the Interpretation Act 1889 (UK) save for the insertion of the words in parentheses in place of a list of nouns which exhaustively defined the meaning of the word "instrument" in the Imperial Act. Section 31 of the Interpretation Act 1889

(UK) read as follows:

"31. Where any Act, whether passed before or after

the commencement of this Act, confers power to make, grant, or issue any instrument, that is to say, any Order in Council, order, warrant, scheme, letters patent, rules, regulations, or by-laws, expressions used in the instrument, if it is made after the commencement of this Act, shall, unless the contrary intention appears, have the same respective meanings as in the Act conferring the power."

Until 1937 the Interpretation Act was to be construed with the Acts Interpretation Act 1904. The preamble to the Acts Interpretation Act 1904 read "An Act for the Interpretation of Acts of Parliament and for further Shortening their Language." In 1932 s.9A was inserted in that Act and in its relevant parts it read:

"9A. Where an Act confers upon any authority power to make, grant or issue any instrument (including any rules, regulations or by-laws), then,(a) unless the contrary intention appears this Act shall apply to any instrument so made, granted or issued as if it were an Act and as if each such rule, regulation or by-law were a section of an Act; ..."

In 1937 the Acts Interpretation Act 1904 was repealed and the Interpretation Act amended to insert s.46(a).
The purpose of the Interpretation Act was to introduce standard principles for the interpretation of legislation including delegated legislation. Delegated legislation of whatever description would, of course, involve the use of a form of instrument. (See Pearce, Statutory Interpretation in Australia (3rd Ed.) para.1.2; Bennion, Statutory Interpretation p 131, para.50.)
The usual forms of statutory instruments are rules, regulations or by-laws. The Statutory Rules Act applies to that form of delegated legislation. Statutory Rules are defined in s.2 of the Statutory Rules Act as follows:

"'Statutory rules' means rules, regulations, or by-laws, made under any Act, which -

(a) relate to any Court within the Commonwealth, or to the procedure, practice, or costs therein, or to any fees or matters applying generally throughout the Commonwealth or any part of the Commonwealth; or

(b) are made by the Governor-General, or any Minister, or the Inter-State Commissioner, or any Government department."

Section 48 of the Interpretation Act applies to all regulations and, inter alia, requires them to be notified in the Gazette and laid before Parliament and to be subject to disallowance. If the principal Act delegating the power to create a legislative instrument provides that such an instrument is to be disallowable the provisions of s.46A of the Interpretation Act apply to that instrument as if the provisions contained therein were regulations.
All delegated legislation results from the delegation of a legislative power to the executive by the legislature. The exercise of that power will also be part of the exercise of executive power. It does not follow, however, that instruments created by executive orders are necessarily legislative instruments made pursuant to statutory powers even where the instrument has regard to statutory provisions. (See Craies on Statute Law (7th Ed.) p 301 (Footnote 68). The aids to interpretation found in the Interpretation Act are limited in their application to legislative instruments, that being the sole and obvious purpose of the Act. Notwithstanding that a Court may adopt similar principles in interpreting an executive instrument that will not determine the proper characterization of the instrument. (See Pearce (supra).
In Chittick v. Ackland (1984) 1 FCR 254, the Full Court of this Court considered whether the definition of "enactment" in sub-s.3(1) of the Judicial Review Act - which extended to "an instrument (including rules, regulations or by-laws) made under an Act or an Ordinance" - was confined to instruments of a legislative character. In their joint judgment Lockhart and Morling JJ. expressed the opinion that a document would answer the description of an instrument for the purpose of the definition of "enactment" contained in the Judicial Review Act if it were a document under which decisions of an administrative character may be made and if it were of such a kind as to have the capacity to affect legal rights and obligations. It appeared to be the view of their Honours that if a document met those criteria it was unnecessary to determine whether the instrument was either legislative or administrative in character. However, their Honours acknowledged that the question of what was meant for the meaning of the word "instrument" as used in sub-s.33(3) of the Interpretation Act and as considered in Collector of Customs (NSW) v. Brian Lawlor Automotive Pty. Ltd. (1979) 24 ALR 307 was a different issue altogether.
In Collector of Customs v. Lawlor a Full Court of this Court considered whether the power to grant a licence under the Customs Act 1901 attracted the power of revocation conferred by sub-s.33(3) of the Interpretation Act. The Court held that according to its proper meaning, sub-s.33(3) of the Interpretation Act was directed at the power to make, grant or issue an instrument and not the manner of the exercise of the power. That is, there was a distinction to be made between the conferral of a power to make, grant or issue an instrument, the exercise of which would create particular legal rights or liabilities, and the conferral of a power to create legal rights and liabilities which may or may not be exercised by the making or issue of an instrument. Sub-section 33(3) of the Interpretation Act applied only to the former (Bowen C.J. p 313, Smithers J. p 323 and Deane J. p 344).
In Nashua Australia Pty. Ltd. v. Channon (1981) 36 ALR 215 the Court was satisfied that the power expressed in the words "the Minister may determine, by instrument in writing, that an item of Customs Tariff applied to goods specified in the Determination" was a power to which sub-s.33(3) of the Interpretation Act applied.
In Edenmead Pty. Ltd. v. Commonwealth of Australia (1984) 4 FCR 348 the question in issue was whether a power conferred by the words "the Minister may, by notice published in the Gazette..." was a power to which sub-s.33(3) applied. Spender J. (pp 351-352) referred to Collector of Customs v. Lawlor and Nashua v. Channon. His Honour stated that the question was not answered by the form of grammatical expression used to confer the power and that the true characterization of the power had to be determined from the context of the instrument. His Honour concluded that in the case before him the publication of the instrument was essential to the valid exercise of the power and that no distinction could be drawn between the publication of the notice and the exercise of the power. His Honour held, therefore, that the case was distinguishable from Collector of Customs v. Lawlor.
In Edenmead v. The Commonwealth it was not in issue that the relevant instrument prohibiting fishing in an area of proclaimed waters was an instrument of legislative character. The sole question was whether there had been a conferral of power to make, grant or issue an instrument or merely a power to create a legal liability or obligation.

In Azevedo v. Secretary, Department of Primary Industries and Energy (1992) 35 FCR 284 the Court considered the application of s.46(a) of the Interpretation Act to a power conferred by the words "the Minister may, by instrument in writing, determine a plan of management for a fishery in proclaimed waters". It is clear from the Court's reasons that the Court was satisfied that the power conferred by the principal Act was one to make, grant or issue an instrument of legislative character.
Having regard to the content of s.46(a) and the history of sub-s.33(3) of the Interpretation Act, there may be cause to conclude that the parenthetic expression "(including rules, regulations or by-laws)" was intended to be an exhaustive provision which could have been alternatively expressed by the words "which includes rules, regulations or by-laws". (See YZ Finance Co. Pty. Ltd. v. Cummings (1964) 109 CLR 395). In other words, it may be argued that s.46(a) and sub-s.33(3) of the Interpretation Act were intended to refer to instruments which contain subordinate legislation of the standing of rules, regulations or by-laws and to provide ordinary legislative powers of repeal and amendment without the need for the power to be expressly stated in the instrument, but that in respect of other legislative instruments of lesser import where the power of revocation or amendment may be unnecessary or inappropriate, it would be for the Act conferring the power to include an express power to revoke or amend the instrument. This would be particularly apt in cases where the exercise of the power was intended to exhaust the power.
However, if it is assumed that the word "instrument" has a wider meaning than "a document which includes rules, regulations or by-laws", it is necessary to determine whether the notice of Invitation to Tender published in the Gazette on 18 January 1993 was the publication of an instrument within the ordinary meaning of that term and whether it was a legislative instrument within the meaning of the term as used in sub-s.33(3) of the Interpretation Act.
It is necessary to consider the provisions of the Act before turning to the character of a notice issued by the Secretary under cl.4(1) of Determination No. 2.
Section 92A of the Act does not, in its terms, restrict the grant of licences under s.24 of the Act. If the Minister made no determination in writing in the terms of sub-s.92A(1), the provisions of s.24 would operate without qualification. Section 92A permits the Minister to select a class of licences and apply to it a price-based allocation system for the purpose of granting licences under s.24 of the Act. It does not purport to impose a bar upon the grant of licences under s.24 until an allocation system has been determined. The use of the words "price-based", "allocation" and "system" in conjunction suggests that the Minister is to set a price for a licence in the class selected by him and make the grant of the licence dependent upon the completion of a sale of the licence for the price fixed by that system. Whether a tender-based system, only activated by a request for tenders, meets the terms of s.92A of the Act may be debatable. It may be argued that it could not have been intended by s.92A that the power conferred on the Minister to determine a system to aid the exercise of the power conferred by s.24 may be used to fetter the latter discretion indefinitely and further argued that in the absence of any restriction on that discretion imposed by the Act tenders submitted in support of an application for a licence would have to be dealt with as and when received and decisions made upon them accordingly.
If, however, it is assumed that Determination No. 2 is consistent with the terms of the Act, there being no submission to the contrary, what is the character of a notice prepared by the Secretary inviting tenders for an MDS licence?
If regard is given to the ordinary meaning of instrument (see Azevedo v. Secretary, Department of Primary Industries and Energy pp 299-300), it is difficult to regard a request for the submission of tenders as being within that meaning. Mere advice that tenders are sought from interested parties lacks the degree of formality and of confirmation, creation or limitation of a right that is part of the ordinary connotation of the word instrument. The formality of publication of the contents of the request in the Gazette will not stamp the request with the character of an instrument. That must be found in the contents of the document.
In any event, as used in sub-s.33(3) of the Interpretation Act, an instrument must be a document of legislative character. The dissemination of information by way of a notice in the Gazette to the effect that tenders for MDS licences are invited suggests the exercise of an administrative or executive power. It lacks the capacity to affect rights and obligations such as that contained in the notice of prohibition considered in Edenmead v. The Commonwealth. It has no character equivalent to a promulgation binding in nature such as the notification of standards or guidelines, directions or orders. Furthermore, it has no continuing effect such as would render it appropriate for revocation. Notice of the contents of the instrument is not removed or expunged by purported revocation of the instrument. There is some analogy with the executive act of Proclamation under sub-s.24A(3) of the Act. Although the executive act is carried out pursuant to a power conferred by the legislature, the selection and announcement of the relevant date is an executive act which exhausts the power. It is the statute and not the executive act that is of continuing effect thereafter. For that reason sub-s.33(3) of the Interpretation Act has no application. Similarly, publication by notice of the willingness or readiness to receive tenders for licences under Determination No. 2 is an administrative step which makes applicable the provisions of the Determination. It does not assume a legislative character by reason of it being a document that assists the functioning of statutory provisions. In the absence of that legislative character sub-s.33(3) will not apply.
An indication of the administrative nature of a notice under cl.4(1) of Determination No. 2 may be found within the terms of Determination No. 2 itself. Pursuant to cl.2(1) the term "the Secretary" includes any person authorized in writing by the Secretary to carry out any of the Secretary's functions in Determination No. 2. If the Secretary's function pursuant to cl.4(1) of Determination No. 2 was able to be delegated by the Secretary, it could not have been contemplated that the act of the Secretary under cl.4(1) was part of a delegated legislative power conferred on the Minister. Pursuant to s.66 of the Act the power of the Minister to delegate all or any of his powers under the Act does not include the power of delegation.
Furthermore, if the character of the Invitation to Tender is other than I have found and it is an instrument to which sub-s.33(3) of the Interpretation Act applies, the provisions of the Act suggest a contrary intention to the conferral of a power to revoke the instrument by the application of sub-s.33(3).
Although, in sub-ss.26(6), 34(4), 41(9) and (10), and 86(7) of the Act it is acknowledged that sub-s.33(3) of the Interpretation Act may have application to the powers conferred by those and other sections of the Act, those references occur in a context which contains detailed provisions in respect of the application of the delegated legislation provided for by the Act.
For example, in sub-ss.9(10) and (12), 20(5) and (6), 25(7), 42(6), and 66A(5) and (6) of the Act in respect of powers conferred on the Minister to determine guidelines and standards, to prepare plans and to prohibit devices by instruments in writing, it is stated that the instruments are to be laid before Parliament and treated as Statutory Rules.
Under sub-s.41(8) of the Act the power conferred on the Minister to prohibit or regulate the operation of transmitters during a period of emergency is made subject to s.48 of the Interpretation Act requiring the provisions be laid before Parliament.
Furthermore, in the promulgation or amendment of standards (sub-s.9(2)), guidelines (sub-s.16(4)), plans (sub-s.20(1)), prohibition of devices (sub-s.66A(2)), the Act provides for representations to be invited, received and considered before these powers are exercised.
In sub-s.86(1) of the Act various decisions of the Minister and the powers conferred by the Act are made reviewable by the Minister and pursuant to sub-s.86(5) subject to revocation by him. The decisions referred to in sub-s.86(1) are all constituted by notices issued by the Minister and relate to directions and declarations, cancellations of permits, suspensions of certificates, and refusals to issue permissions or certificates. In particular, s.86 provides a right to seek the revocation of a decision not to grant a licence under s.24 and revocation of conditions imposed upon a licence pursuant to s.25 of the Act. Sub-section 25(3) provides an express power to revoke without an application for review under s.86. Similarly, sub-ss.28(3), 34(2), 38(9), 40(4) and para.42(1)(c) each provide an express power of revocation in relation to an instrument issued under those sections. Having regard to those provisions it may be concluded that the Parliament did not intend the power conferred on the Minister under s.92A to be used in a manner inconsistent with the comprehensive provisions contained throughout the Act in respect of rights affected by the exercise of powers delegated by the Act. That is, if it is contended that the Invitation to Tender created rights and was, therefore, in the nature of a legislative instrument, it was not contemplated by the Act that such rights would be subject to revocation and treatment in a manner inconsistent with other provisions of the Act.
For the reasons expressed I am of the view that the purported revocation of the Invitation to Tender was not a step taken pursuant to statutory authority and that a declaration may be made accordingly. (See Collector of Customs v. Lawlor pp 316, 336-340.)

[1993] FCA 141

18 MARCH 1993