Bond, A v Australian Broadcasting Tribunal

[1988] FCA 278

IN THE FEDERAL COURT OF AUSTRALIA )

-

)

NEW SOUTH WALES DISTRICT REGISTRY	)	No. G989 of 1988
1
GENERAL DIVISION	1

BETWEEN:  ALAN BOND

First Applicant

BOND MEDIA LIMITED

Second Applicant

BOND CORPORATION HOLDINGS

LIMITED

Third Applicant

QUEENSLAND TELEVISION LIMITED

Fourth Applicant

CONSOLIDATED BROADCASTING

SYSTEM (W.A.) PTY. LIMITED

Fifth Applicant

NORTHWEST RADIO PTY. LIMITED

Sixth Applicant

DARWIN BROADCASTERS PTY.

LIMITED

Seventh Appllcant

AND :  AUSTRALIAN BROADCASTING
TRIBUNAL

Respondent

CORRIGENDUM

r

Amendment to the ~udgment of hls Honour Mr Justlce

Morling of 9 June 1988 -

page 18 line 2 0 - delete "overlooked"

~ D O U G A L L 7>4

3 August 1988 ASSOCIATE TO MORLING J.

..

l .

.

CATCHWORDS

BROADCASTING AND TELEVISION	- Australian Broadcasting
Tribunal - substantive powers - proposal to exercise	-

inquiry - whether intention to exercise power

necessary before holding inquiry - lnqulry held before

intention formed - whether inquiry invalid.

Broadcasting Act 1942, ss.7, 17, 17A, 17C, 124

ALAN BOND; BOND MEDIA LIMITED; BOND CORPORATION

HOLDINGS LIMITED; QUEENSLAND TELEVISION LIMITED;

CONSOLIDATED BROADCASTING SYSTEM (W.A.) PTY. LIMITED;

NORTHWEST RADIO PTY. LIMITED; DARWIN BROADCASTERS

PTY. LIMITED

V. AUSTRALIAN BROADCASTING TRIBUNAL

No. G 909 of 1900

Morling J.

9 June 1980

Sydney

,

. -

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY	) NO. G989 Of 1988
)
GENERAL DIVISION	)

BETWEEN:  ALAN BOND

First Applicant

BOND MEDIA LIMITED

Second Applicant

BOND CORPORATION HOLDINGS

LIMITED

Third Applicant

QUEENSLAND TELEVISION LIMITED

Fourth Applicant

CONSOLIDATED BROADCASTING

SYSTEM (W.A.) PTY. LIMITED

Fifth Applicant

NORTHWEST RADIO PTY. LIMITED

Sixth Applicant

DARWIN BROADCASTERS PTY.

LIMITED

Seventh Applicant

AND :  AUSTRALIAN BROADCASTING
TRIBUNAL

Respondent

c o w :	WORLING J
PLACE:	SYDNEY
DATE :	9 JUNE 1988

REASONS FOR JUDGMENT

In these proceedings under the Administrative

Decisions (Judicial Review)	Act1977 the applicants seek orders
.

_ - 2.

of review of decisrons made by the Australian Broadcastlng

Tribunal in the course of an inqulry belng conducted by It

pursuant to s.17C of the Broadcasting Act 1942. In their
application as originally framed the applicants sought rellef
only in respect of the refusal of the Tribunal to furnish

further and better particulars of matters into which the

Tribunal was inquiring. However, the amended application

eeeks much wider relief. It is now claimed that there IS no

statutory warrant for the inquiry upon which the Tribunal has
embarked. This claim raises for consideration an important
question affecting the powers of the Tribunal to hold inquirles

under Division 3 of Part I1 of the Broadcastlng Act.

The Facts

Companies associated with MC Alan Bond hold a

commercial television licence for channel QTQ Brisbane. They
also hold several commercial radio licences. MC Bond and his

companies are the applicants in these proceedings.

On S February 1988 the Tribunal wrote to the

applicants advising that	it had examined and considered an
unedited tape of an interview given by	M C Bond on the programme
"A Current Affair" on	22 January 1988 and had also examined the
transcript of a	recent licence renewal Inquiry in respect of

the licence for channel QTQ. The letter stated that the

Tribunal had "decided to hold an inquiry into the issues
raised", that the issues for the inquiry were being settled and
that they would be forwarded to the applicants when finalized.

On 2 March 1988 the Tribunal caused a Notice of

Inquiry to be published in the Government Notices Gazette and
in a number of metropolitan daily newspapers. The notice

read, in part, as follows:

"BROADCASTING ACT 1942

RADIO AND TELEVISION STATIONS

ASSOCIATED WITH MR ALAN BOND

NOTICE OF INQUIRY
SUBMISSIONS INVITED

The Australian Broadcasting Tribunal has commenced an inquiry into issues relating to the following commercial radio and television licences owned by companies associated with Mr Alan Bond:

Radio

QTQ BRISBANE 6AM NORTHAM

6KA DAMPIER - KARRATHA -

ROEBOURNE

6KG ALGOORLIE

6NW	PORT	HEDLAND
8DN	ARWIN

This inquiry follows the viewing by the Tribunal of

an unedited tape of an interview given by Mr Alan

' Bond on the program "A Current Affair" on 22 January

1988. The Tribunal also examined the transcript of

the last QTQ-9 renewal.

The issues which will	be addressed during the inquiry
are as followa:

1.     Whether anything connected with the payment of

.$4QO,QOO 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.

2. Whether it would be advlsable 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;

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

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

...

Any person wishing to make a submission on these

issues may lodge	it	with the Tribunal by 13 April
1988.

. ..

Thereafter correspondence passed between the applicants' solicitors and the Tribunal in which clarification was sought of the matters into which the Tribunal proposed to inquire.

On 11 April 1988 the applicants' solicitors lodged

written submissions with the Tribunal in response to the notice

published in the Gazette. The submissions were plainly made

upon the basis that the inquiry would be conducted by the

Tribunal under s.l7C(l) of the Act and the Australian

Broadcasting Tribunal (Inquiries) Regulations which have

application only to inquiries conducted under s.l7C(l). It will
be necessary later in these reasons to refer in detail to the

terms of s.l7C, but it is sufficient for present purposes to note

that when the Tribunal proposes to exercise any of Its

substantive powers it	is required by s.l7C(l) to hold an inquiry
into the proposed exercise	of the power. The power to vary,

revoke or impose a condition on a licence is one such substantive

power (s.l7A(2)(c)).

On 14 April 1988 the applicants' solicitors wrote to the

Australian Government Solicitor complaining that they had not

been given certain particulars which they had sought and drawing

attention to the requirements of reg. 9( 3) (b) which requires that

the Notice of Inquiry must specify the issues to be considered in

it. Other correspondence concerning the matter of partrculars

passed between the solicitors. It seems to have been assumed in

the correspondence that the inquiry was to be held under

s.l7C(l). On 5 Hay 1988 the Australian Government Sollcitor

wrote to the applicants' solicitors advising that the Trrbunal
had not then concluded its investigation preliminary to the

public inquiry. The letter further stated, inter alla:

"In an effort to assist you, I set out below the

issues which counsel assisting the Tribunal currently perceives to arise within the issues nominated by the Notice of Inquiry :

1. Hr. Bond's belief as to the truth or

substantial truth of the story broadcast on

2 February 1983 on QTQ 9, Brisbane, and the basis

or bases of that belief.

2.   whether there were facts concerning the truth

of the story of which	Hr. Alan Bond was unaware
and whether	Hr. Bond took reasonable steps to
acquaint himself with	those facts.

3.    Whether the defamation action instituted by

S i r Joh Bjelke-Petersen in consequence of that

story was being actively prosecuted by him prior

to the acquisition of QTL by	a company assocrated
with Hr. Bond.	(It appears that QTL is the

company which holds the licence for channel QTQ

Brisbane).

4. The advice possessed by QTL and its

defamation insurers as to prospects of success
and/or extent of potential damages in relation to
the defamation action.

5.    The nature of the conversations between Sir

Joh Bjelke-Petersen and Hr. Bond, or persons

associated with Hr. Bond, touching upon the

defamation writ.

6. Whether those conversations amounted to a

demand by Sir Joh for settlement of the

defamation writ havlng regard to factors other

than the legal merits of the defamation action.

l . The circumstances of Sir Edward Lyons' and

Mr. Peter Gallagher's appointment to the	QTL
Board.

8.   Sir Edward Lyons' disclosure to the QTL Board

of his knowledge of, and involvement in, the

facts which contributed the basis for the story

broadcast on 2 February 1983.

9. Sir Edward Lyons' purpose in ralslng 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 action.

12. The sum paid by way of settlement of the defamation action and the person who paid that sum.

13.    The extent to which QTL Board members were

kept aware of the settlement negotlatlons and

their outcome.

14. The meaning to be ascribed 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.

You will appreciate the abovementioned issues cannot
be regarded as finally delimiting the scope of the

inquiry, and that further relevant issues might arise

in light of evidence given at the hearrng or

information provided to the Tribunal."

On 6 May the applicants' solicitors sought further

particulars and on the same day, the Australian Government

I .

Solicitor replied contending that he had already provided "a

comprehensive list of issues which Counsel currently perceives to

arise within the parameters by the Notice	of	Inquiry". The
letter also stated:

"I remind you that the Tribunal's Inquiry is not in

the nature of ordinary litigation. There is no

question of presenting a 'case' against your client.

The essence of the Inquiry is the knowledge that the Bjelke-Petersen defamation action was settled for a substantial sum, that M C Bond earlier gave evidence thereon to the Tribunal and then subsequently made

certain comments in relation to the settlement to	MS
Jana wendt.

what the Inquiry will look at is whether in all the
circumstances surrounding those events, a particular
conclusion should be drawn. In this regard, neither
I nor Counsel assisting the Tribunal have any views

whatever.

'Particulars' of any issues will emerge as the

Tribunal's	preliminary investigations unfold and in
the course	of evidence given by witnesses at the
Inquiry.

On 12 May the Australian Government Solicitor wrote to

the applicants' solicitors advising them of a revised list of

issues which counsel assisting the Tribunal perceived to arise

within the parameters nominated in the Notice of Inquiry. The

revised list was in substantially similar terms to the list

supplied on 5 Hay 1988. The letter stated that the issues

could not be regarded as finally delimiting the scope of the
inquiry, and that further relevant issues might arise in the

light of evidence given at the hearing.

On 24 May the applicants' solicitors wrote to the

Australian Government Solicitor seeking particulars of each of

a .

the issues the subject of the inquiry. He replied on 25 Nay

stating that the issues remained those set out in the Notice of

Inquiry and that the "factual issues" perceived to arise	by
counsel assisting within those general issues were set out	In

the letter of 5 May. After referring to some additlonal issues

that had emerged during the hearing (whlch had already

commenced), the letter continued:

"The question of whether any (and if so which)

substantive powers are to be exercised by the
Tribunal must await the factual determinations. I
understand that the Tribunal has not formed any
intent to exercise any substantive power adversely
to the interests of the licensee at this stage.
Should that position change appropriate notice wlll
be given to you and opportunity afforded you to be

heard. It

On 26 May, the applicants sought from the Tribunal a

direction that counsel assisting the Tribunal provlde to the

applicants the particulars sought in the letter of 24 Nay. On

2 1 May, the Tribunal refused to give the direction and, in the

course of giving its reasons for such refusal, said:

"... in so far as the Australian Government

Solicitor's letter of	2 5 nay 1988 purports to set out
the present thinking of the Tribunal, it does	so

accurately. We have not formed any intent to

exercise any of our substantive powers under the

Broadcasting Act 1942 in	a manner adverse to the
'licensees.	Should that position change we shall

inform the licensees before finally deciding whether
to exercise any of our powers giving the licensees
adequate opportunity to place material before us and

to make submissions."

The Tribunal indicated that its Inquiry would proceed

on 31 Hay. The applicants then sought relief in this Court.

After the commencement of the proceedings the applicants'

solicitors wrote to the Australian Government solicitor

requesting to be informed under which sub-section of the Act

the inquiry was being conducted. In response to that letter

the Australian Government Solicitor advised that I' . . . . the

nature of the inquiry is as previously advised viz 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."
The Legislation

Provision is made in s.7 o f the Act for the establish-

ment of the Tribunal. Its functions include the grant,

renewal, suspension, revocation and acceptance	of the surrender
of licences	(s.l6(l)(a)). Licences include commercial radio

licence6 and commercial television licences (s.4(1)). For the purpose of exercising its powers and functions under the Act

the Tribunal has power to make such orders, give such

directions and do all such things as it thinks fit (s.17(1)).

Such orders have the force of law (s.l7(2)(c). A person shall

not contravene or fail to comply with any provision of an order

made by the Tribunal which is applicable to him (s.17(4)).

Division 3 of Part I1 of the Act makes provision for

inquiries. An inquiry may be an "area inquiry" under s.18A, a

"directed inquiry" under s.18,	or an "ordinary inquiry" under
s.17C (s.l7A(l)).

Section 17C is of central importance. I t provides as

follows:

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

application 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 exercise any of its powers, other than a

substantive power, under this Act or the

regulations, the Tribunal may in its discretion
hold an inquiry into the proposed exercise of the

power .

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

an inquiry into -

(a) any matter relating to the operation of

this Act;

(b) any matter relating to broadcasting

services; or

(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 to 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 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

with this Division and the regulations.

( 6 ) Notwithstanding the preceding provisions

of this section, regulations under section	134 may
make provision for and in relation to -

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

(b) the holding of -

( i ) joint ordinary Inquiries into

the exercise of 2 or more powers

by the Tribunal;

(ii) separate ordinacyinquiries into

different aspects he of

exercise of the same power by

the Tribunal; and

(iii) ordinary inquiries into certain

aspects only of the exercise of
a power by the Tribunal.

Where the Tribunal determines that for reasons of urgency it is not practicable for the Tribunal or another person to comply with a particular requirement or particular requirements

( 7 )

of the regulations or of this Division in relation

to the holding of an inquiry under sub-section (l),

the following provisions have effect:

(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, in

relation to the holding	of the inquiry;
and

(b) the Tribunal may in lieu of that

requirement or those requirements, as

the case may be, adopt any other

procedure p ocedures or that it

considers appropriate.

( 8 ) Subject to this Division and to the

regulations, the conduct of an inquiry under

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

the Tribunal. "

The r ference in s.l7C(l) to Tribunal's he

substantive powers is a reference to the powers referred to in

s.l7A(2). They include the power to vary, revoke or impose

conditions on licences.

NO regulations have been made deallng with the matters

referred to in s.l7C(6).

Inquiries are to be held in public (s.19(1)) but where

the Tribunal is satisfied that, by reason of the confidential

nature of any evidence or matter or for any other reason, it is

desirable that it should give directions that proceedlngs at an

inquiry shall be held in private or that the publication	of
evidence given before the Tribunal should be prohlbited	or
restricted it is required to give such directions	as it thlnks

necessary (s.19(2)). The Tribunal may take evldence on oath

or affirmation (s.21(1)) and may summon a person to appear

before it to give evidence and produce documents (S. 21 ( 2 ) ) . A person 'appearing before the Tribunal to give evidence may be required to take an oath or make an affirmation (s.21(3)), and

it is an offence for a person served with a summons to appear as a witness to fail, without reasonable excuse, to attend as required by the summons (s.21AA). In proceedings before the

Tribunal at an ordinary inquiry under s.17C a party to the

proceedings may be represented by	a barrister, solicitor	or
agent (s.22(1)).

The Tribunal is required, without regard to legal

forms and solemnities, to make a thorough investigation into

all matters relevant to an inquiry. It is not bound by legal

rules of evidence and may inform itself	on any matter in such
manner as it thinks fit and, subject to	s.19, is required to

ensure that every party to proceedings at an ordinary inquiry

is given a reasonable opportunity to present his case (s.25).

. 1 3 .

The Tribunal is authorized to require a licensee to

supply to it, within a specified period, such information In his possession or control as is specified, being information

relating to a function of the Tribunal, and the licensee is

obliged to comply with the requirement (s.124(2)).

The Australian Broadcasting Tribunal (Inquiries)

Regulations apply to an inquiry under s.17C( 1) of the Act.

An application under the Act requesting the Tribunal to

exercise any of its substantive powers must indicate the power

of the Tribunal in respect of which the application is made and

outline the grounds on which the exercise by the Tribunal of

the power is sought (reg. 4(l)(b) and (c)). Where the

Tribunal commences an inquiry, whether in consequence of the lodgement of an application or otherwise, it is required to

publish a notice of the commencement of the inquiry

(reg. 9(1)). The notice is required to "specify the issues to

be considered in the inquiry" (reg. 9(3)(b)). A submission

made by a person in relation to an inquiry shall "indicate the
nature of any decision, recommendation or direction that the

person requests be made or given by the Tribunal in the

inquiry" (reg. 10(l)(b)). where the Tribunal is satisfled that

the issues to be considered in an inquiry, as stated in the

notice published under reg. 9(1) should be changed, the

Tribunal is required to determine new issues to be considered in the inquiry, and where those issues are substantially

different from the issues stated in the notice already

published, the Tribunal is required to publish	a further notice
setting out the new issues (reg. 12).

. 14.

The contentions of the parties

The applicants challenge the validity of the inquiry Tribunal has misconceived the nature of an inquiry under
s.l7C(l). It was submitted that the Trlbunal is purportlng to
hold the inquiry pursuant only to s.l7C(l). The obligation
and the power to hold an inquiry under that sub-section arises, upon which the Tribunal has embarked. They contend the

so	it was argued, in only two situations: first, where the
Tribunal receives an application requesting	it to exerclse any
of	its substantive powers; and secondly, where the Trlbunal
proposes to exercise any of	its substantive powers otherwise
than on such an application. The second head	of power, so it

was submitted, is available to the Tribunal only i f it has

formed an intention, albeit not final, to exercise one of Its

substantive powers. was It said that the evidence

demonstrates that no such intention has been formed by the

Tribunal. Thus, so it was argued, although the Tribunal is

purporting to conduct he inquiry under s.l7C(l), that

provision does not authorize the holding of it.

The applicants made the further submission that there

is no other provision in the Act which authorizes the present

inquiry. In particular, it was submitted that the power to

hold an inquiry under s.l7C(3) does not extend to authorlze the
present inquiry. The matters referred to in paras. (a), (b)
and (c) of s.l7C(3) were said to be matters of general policy
and the like and do not include particular matters of the kind

. 15.

referred to in the issues described in the Gazette notiflc-

ation. Alternatively,	it was submitted that even i f s.l7C(3)
would have been	a sufficient source of power for the holding of
the inquiry if it had been resorted to,	it had not, in fact,
been resorted to by the Tribunal.

Senior counsel for the Tribunal submitted that the

inquiry was authorized by s.l7C(l). He contended that the

Tribunal is authorized by s.l7C(l) to hold an inquiry whenever

it raises for consideration the question whether	it should
exercise one or more of its substantive powers. According	to

this argument, the expression "proposes to exercise" in the
sub-section does not mean "intends to exercise". It was said
that if the latter meaning is adopted, great difficulty would

be experienced by the Tribunal in discharging some of Its

important re6ponsibilities under the Act. One such

responsibility is the task of deciding whether the conduct of

licensees is 6uch that consideration should	be given to the
revocation or suspension of their licences.

According to senior counsel for the Tribunal, it

perceives the task upon which it has embarked as one of

informing itself initially on a number of matters of fact, the

determination of which might raise for consideration the

appropriateness of the exercise of its substantive powers. He

said that the Tribunal is of the view that a stage may be

reached in its investigation of the factual matters when	it may
form a tentative view that its substantive powers should	be
exercised adversely to the interests of the applicants. At that stage, the obligations of natural justice mlght dlctate

the provision of particulars of the klnd sought in the

correspondence.

It was further submitted on behalf of the Tribunal

that s.l7C(l) does not envisage that the Tribunal must form a preliminary view on any factual matter before it proposes to

exercise its substantive powers.	I t was said that the flrst
limb of s.l7C(l) contemplates that when an application	is made

to the Tribunal requesting the exercise of rts substantive
powers, it will not form any preliminary view on the matters

referred to in the application before an inquiry is held. I t

would be surprising, so it was argued, if it was obliged to

form such a preliminary n e w before the commencement of an

inquiry which it initiates of its own motion.

It was all but conceded on behalf of the Tribunal that

the inquiry was being held pursuant to what the Tribunal

conceived its powers to be under s.l7C(l).	However, it was
submitted that if the Tribunal was not authorized	by s.l7C(l)

to hold the inquiry, it was so authorized by s.l7C(3).

Is the current inquiry authorized?
The first question which must be addressed is whether the inquiry currently being undertaken by the Tribunal	is
authorized by s.l7C(l) of the Act. Central to that question

. 17.

is the meaning of "proposes" in the collocation of words	"Where
the Tribunal ... proposes to exercise any	of its substantive

powers ...". Dictionary definitions of the word do not of

themselves provide a sure answer to this question. To propose

something may be to put it forward for consideration or

discussion or to proffer it for mental acceptance or assent:

Oxford English Dictionary. But according to the same

dictionary, when used transitively, it means "to put forward as
a scheme or plan to be adopted: to lay before another or
others as something which one offers to do, or wishes to be

done". Further meanings of the word when thus used are "to

put before one's own mind as something that one is going to do;

to design, purpose, intend . .. Now usually with some notion of

having 'formed a decision or intention."

The meaning of "proposes" will depend, of course, upon

the context in which it	is used. Moreover, its meaning will
often be determined by whether it	is immediately followed by

"to" or "that". In the former case, the word commonly bears a

meaning almost indistinguishable from "intend", but, it is less

likely to have that meaning in the latter case.

There are indications in the context in which s.l7C(l)

is set which lead me to the conclusion that the Tribunal 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. Section 17C(1) envisages two

situations which may trigger the obligation (and hence the
power) to hold an inquiry. First, the Tribunal may recelve an

application requesting it to exercise one of its substantive

powers. In such a case the applicant must surely have the

intention that the Tribunal will exercise the power in

accordance with his request. Regulation 4(1) requires an

applicant to indicate the power in respect of which his applic-
ation is made and to outline the grounds on which the exercise
of the power is sought. Even if there was no such requirement

in the regulations, an application under s.l7C(l) could hardly

be made without identifying a particular course of action which

the Tribunal is requested to adopt.

The second situation which triggers the obligation and

power to hold an inquiry arises when the Tribunal "proposes - to"

exercise any of its substantive powers. The sub-sectlon does

not refer to the Tribunal's proposal that its power be

exercised. I think this tends to indicate that the draftsman had in mind that the obligation to hold an inquiry would not

arise unless and until the Tribunal intended to exercise one	of
its Substantive powers. Thus construed, the second part of
s.l7C(l) sits easily with the first	part.

It is significant overlooked that, unlike ss.l7C(2)

and ( 3 1 , s.l7C(l)	is mandatory in its terms. It is easy to
understand why this	is so if the Tribunal has formed the

intention (albeit provisional) that it should exercise any of

its substantive powers. It is less easy to understand if all

that the Tribunal has in mind is to give consideration to the

question whether it should exercise such a power. In many

cases when a substantive power is exercised the consequences

. 19.

may be serious for a licensee and others. Both the llcensee

and the general public are likely to have a real interest in

the exercise of the power. Hence, a requirement that the

Tribunal hold an inquiry when its thinking has reached the

stage that it has formed an intention to exercise such	a power
seems appropriate. But on the construction of s.l7C(l) for

which the Tribunal contends once it gives preliminary

consideration to the question whether	it should exercise one of
its substantive powers	it has no option but to hold an inquiry

even if it then has no intention of exercising such a power.

The statutory obligation to hold an inquiry would arise as soon

as the Tribunal raised for discussion a proposal that it should

exercise one of its substantive powers. It seems to me that

such a construction would create more difficulty for the

Tribunal in the exercise its powers than the constructlon for which the applicants contend.

The argument that there would be great difficulty in the administration of the Act if the applicants' construction

of s.17C(1)	is adopted does not, to my mind, have as much
subrtance as it was said to have	by the Tribunal's counsel.

tie submitted that in a case such as the present, where the

fitness of a licensee to retain his licence is under

consideration, the Tribunal would be hamstrung i f the

applicants' construction	of the Act	is adopted. But there
are means available to the Tribunal, short of	a	full-scale

inquiry 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. The Commission has power to do all such thlngs as l t

thinks fit for the purpose of exercising its powers and

functions under the Act (s.17(1)). That power, and the power

in s.124(2) to require a licensee to supply it with information

relating to its functions (which include the revocation of
licences (s.16(1)), would extend to authorize it to make such
inquiries as it might think necessary before reaching a

preliminary view that It should exercise one of its powers.

There are many places in the Act, especially In

Part IIIB which deals with the grant, renewal and revocatlon of

licences, where "proposes" and "proposed" appear: see

ss.81A(2), 82(l)(a)(i) and (ii), 82A(Q)(a)(ii), 89A(1A),

89D( a ) , 9OJ( 3 ) , and 92F( 3). In every instance the words refer

to a definite and specific course of conduct which is proposed
to be undertaken. The meaning which the words have in other
sections of the Act is not, of course, determlnative of the

present question but it does afford some confirmation that

"proposes" in s.l7C(l)	is used in the sense contended for by
the applicants.

Senior counsel for the Tribunal submitted that there

is something unusual	in the notion that the Tribunal must flrst
form an	intention to exercise one of its substantive powers

before it holds an inquiry into the proposed exercise of the

power. However, what s.l7C(l) calls for is no more than the

formation by the Tribunal of an intention to exercise its

substantive powers. It does not contemplate that the Tribunal
will reach a concluded view on any matter, and thereafter hold

. 21

an inquiry. The exercise which the Tribunal is called upon to

perform is not unlike that commonly undertaken by regulatory

bodies which issue "show cause" notices before they hold

inquiries into the matters that have led to the issue of	the
notices.

I do not find persuasive the Tribunal's argument that, as the first limb of s.l7C(l) does not envisage that the

Tribunal will form	a preliminary view on the matters referred
to in an application, it would be surprising if	it was obliged

to form such a view when it initiates an inquiry under the

second limb. The maker of an application must obviously form

a preliminary, if not firm, view of the matters referred to in

his application before he submits it. To construe the second

limb as requiring the Tribunal to form a preliminary view

before it proposes to exercise its powers seems to me to give
coherence to the sub-section as a whole. That is to say, the
statutory obligation to hold an inquiry does not arise until,
at the least, a preliminary view is formed that circumstances

exist justifying the holding of an inquiry.

The adoption of the Tribunal's construction of

s.l7C(l)	leads to the result in the present case that two
inquiries may	have to be held. On its construction, there
must be an inquiry	(i.e. the present inquiry) at the conclusion

of which the relevant facts will be found. Thereafter the
Tribunal, having considered those facts, will have to determine

whether it proposes to exercise any of its substantive powers.

If it does so propose, there must be a second inquiry into the

I

.

. 22.

proposed exercise of the power. It 1s clear from the

Australian Government Solicitor's letter of 25 nay that this is

the manner in which the Tribunal proposes to proceed. But

there	is	nothing	in	s.l7C(l)	which	lustifies,	or	indeed
requires,	the	holding	of	two	inquiries.	what	is	made

obligatory is the holding of "an inquiry into the requested	or
proposed exercise of the power".

It might appear at first blush that the construction I

place upon	s.l7C(l) is over-technical. But	I do not think rt
is.	It is of the essence of the Tribunal's	constructlon that
an inquiry under s.l7C(l) may be in the nature of	a	wide

ranging fact-finding exercise without there being any firm

proposal by the Tribunal to exercise any of rts substantive

powers. It seems to me that such a construction could hardly

have been intended by the Parliament. The exercise of most of

the Tribunal's substantive powers is calculated to have serrous

implications for licensees. It is not an unreasonable or

over-technical construction of s.l7C(l) to read it as only

requiring an inquiry to be held when there is some proposal to

exerciae a subrtantive power. This construction does not give

a licensee undue immunity from scrutiny of his conduct. Such	scrutiny can take place provided the Tribunal has sufficient
material justifying it proposing to exercise one of rts powers.
In any event, a licensee's conduct is reviewable in the inquiry
which the Tribunal is obliged to hold whenever the licensee applies for his licence to be renewed.
For these reasons I am of the view that the Tribunal has no power to conduct an inquiry under s.l7C(l) unless it has
first formed an intention to exercise one of its substantive powers, albeit that the intention may be abandoned after the holding of the inquiry. It is apparent from the correspond-
ence to which I have referred and from the remarks made by the Chairman of the Tribunal on 27 nay that the Tribunal has not formed any intention of the requisite kind. I am therefore of
the opinion that the current inquiry does not find any
statutory warrant in s.l7C(l) of the Act.

I turn now to consider the question whether the

current inquiry is authorized by s.l7C(3). The short answer to this question is that even if s.l7C(3) is an available source of power to hold an inquiry of the kind upon which the Tribunal

has embarked, the Tribunal has not invoked that power in the
present case. Before an inquiry can be held under s.l7C(3)

the Tribunal must first, in the exercise of its discretion,

decide to hold it. It was not suggested that the Trlbunal has

exercised such a discretion in the present case. Senior

counsel for the Tribunal all but conceded that it had proceeded

only in purported pursuance of s.17C( 1). It is unnecessary to

decide whether, in any event, the type of matters which may be

the subject of inquiry under s.l7C(3) are different from, and

do not include, the matters which are the subject of the
current inquiry.

, . .

2 4 .

Conclusion

I therefore conclude that the current Inquiry is

authorized neither by s.l7C(l) nor by s.17C(3). It was not
suggested that there was any other source of power for the

holding of the inquiry. Appropriate orders should therefore

be made giving effect to these reasons.	I will hear counsel
on the form of those orders.

In so far as the applicants require an extension of

time for the purpose of challenging the decision to hold the
inquiry, an extension of time is granted.

It is unfortunate that the inquiry should have been

allowed to proceed so far without the determination of the

question whether it was authorized by the Act. But the

applicants' acquiescence in the holding of the inquiry cannot validate it. It may well be that the expenditure of time and

money on the inquiry will not have been wasted. The

information already gathered by the Tribunal may enable it to

decide whether it proposes to exercise any of its substantive

powers. If it has no such proposal, then there will be no

need for a further inquiry. If it does, it would requlre

little ingenuity to conduct a new inquiry without losing the
benefit of the evidence already taken.

I certify that this and the twenty-four ( 2 4 )

preceding pages are a true copy of the Reasons for Judgment of his Honour Mr Justice Morling.

Associate> 7 Date : 1988 une

Counsel for applicant:  A.B. Shand P.C., with

D. Catterns

instructed by:  Blake D wson Waldron

Counsel for respondent:	R. Burbidge Q.C.,	with
P. Roberts

instructed by:  Australian Gover ment

Solicitor

Date of Wearing:	2 and 3 June 1988
Date of Judgment:	9 June 1988