Bond Media Ltd v Australian Broadcasting Tribunal
[1989] FCA 251
•31 MAY 1989
Re: 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 and ALAN BOND
And: AUSTRALIAN BROADCASTING TRIBUNAL
No. NSW G263 of 1989
FED No. 251
Broadcasting Law - Quasi-Judicial Tribunals
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.(1)
CATCHWORDS
Broadcasting Law - Australian Broadcasting Tribunal - inquiry into fitness and propriety of licensee - undertakings offered to Tribunal to end inquiry - undertakings as to composition of Board of controller of licensees and internal procedures of licensees - interlocutory decision of Tribunal that it has no power to accept undertakings - whether Tribunal has power to take into account or consider undertakings offered - effect of enforceability of undertakings - relevance of continuing power of Tribunal to revoke licence - whether finding of fitness and propriety precondition to accepting undertaking - whether undertakings can be accepted from non-licensees.
Quasi-Judicial Tribunals - Administrative Law - Tribunal of Inquiry - undertakings offered to Tribunal to end inquiry - power of Tribunal to accept undertakings - no power in Tribunal to grant final injunction - question of enforceability of undertaking - question of interlocutory undertakings - whether undertaking can be accepted if cannot be enforced directly - continuing power of Tribunal - whether undertakings in substitution for a final order - whether Tribunal can consider undertakings offered.
Injunction - whether power to accept undertaking depends on power to grant final injunction.
Broadcasting Act 1942, ss.17(1), 17A(2), 17C, 25AB, 85, 88
Australian Broadcasting Tribunal (Inquiries) Regulations, regs. 3(1), 8, 12(1), 16
Administrative Decisions (Judicial Review) Act 1977
HEARING
BRISBANE
#DATE 31:5:1989
Counsel for the applicants: R. Gyles Q.C. and J. Timbs
Solicitors for the applicants: Blake Dawson Waldron
Counsel for the respondent: R.J. Burbidge Q.C., P. Roberts
and L. Katz
Solicitors for the respondent: Australian Government Solicitor
ORDER
Decisions (i), (ii) and (iii) mentioned in para. A of the application be set aside.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The Australian Broadcasting Tribunal has, for some time, been conducting an inquiry under the Broadcasting Act 1942 ("the Act") involving consideration of the fitness of companies associated with Mr Alan Bond to hold licences under that Act. It has made findings adverse to Mr Bond's interests and undertakings have been proffered, which, the applicants say, should be considered by the Tribunal; they are designed to overcome the problems raised in the evidence and dealt with by the Tribunal's findings.
The Tribunal has refused to consider the undertakings, not because of considerations relating to their adequacy, but because it has decided that it has no power to accept them, nor to include them, at this stage, as conditions of the relevant licences. In reaching these views, the Tribunal applied decisions of the High Court of Australia and of Davies J., but it is my opinion that the cases it relied on are not authority for its conclusions, and that those conclusions are wrong at law.
It is necessary to explain the points in issue in some detail, but the pith of the matter may be illustrated fairly simply. Suppose a company holding a licence under the Act is in the control of people who are said, for one reason or another, to be quite unsuitable, and that an inquiry is begun by the Tribunal of its own motion with a view to suspending or revoking the licence. Suppose that after the inquiry has proceeded some distance, the controllers decide to give up the battle and sell their interest. As I understand the Tribunal's conclusions, if they undertook to do so within a specified time, the Tribunal could not take such an undertaking into account in the exercise of its discretions under the Act and Regulations by, for example, terminating the inquiry, but must proceed relentlessly on towards a conclusion as to whether the relevant licence should be suspended or revoked. In my opinion, that is not so.
The application seeks to review under the Administrative Decisions (Judicial Review) Act 1977:
"A. The following decisions ('the decisions') of the Respondent made on 16 May 1989 during its Inquiry into Certain Radio and Television Licensees ('the Inquiry'):
(i) That the Respondent does not have power at this stage of the Inquiry to impose conditions on licences the subject of the Inquiry pursuant to section 85 of the Broadcasting Act 1942 ('the Act') or otherwise;
(ii) That the power granted by section 85 of the Act may not be exercised without a finding as to fitness and propriety under sub-section 88(2) of the Act;
(iii) That the Respondent does not have the power to consider at this stage of the Inquiry undertakings proffered by Mr Bond and Bond Media Limited to the Tribunal whether or not those undertakings are enforceable; and
(iv) That even if there were power to consider such undertakings at this stage of the Inquiry, section 25AB of the Act does not provide the necessary enforceability for such undertakings. B. The Respondent's conduct in handing down certain interlocutory decisions as set out in paragraph A(i)-(iv) above for the purpose of making a decision whether or not to exercise any of its substantive powers under sections 85 and 88 of the Act."
The origins of this inquiry are explained in the decision of the Full Court in Australian Broadcasting Tribunal v. Bond (1988) 81 ALR 508. As appears from the reasons of Lockhart J. at pp 527 et seq., a question arose whether the Tribunal, within the meaning of s.17C of the Act, proposed to exercise any of its substantive powers. Section 17C(1) reads as follows:
"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."
The reference to the exercise of substantive powers gets its meaning from s.17A(2), which refers in paras.(c) and (d) to the power to vary, revoke or impose a condition of the licence under s.85 and the power to suspend or revoke a licence under (inter alia) s.88(1). The Full Court, in the case just mentioned, decided that if one looked at the minute which was the origin of the present inquiry, with other documents, it could be discerned that there was sufficient certainty in the Tribunal's proposal and that it was one to exercise powers under s.85 or s.88.
The subject matter of the inquiry received further definition and it was common ground before me that the issues currently being dealt with were defined, under reg.12(1) of the Australian Broadcasting Tribunal (Inquiries) Regulations, by a notice which has been published. The effect of the notice is as follows.
New issues to be addressed relate to: a payment of $400,000 to Sir Joh Bjelke-Petersen in connection with a suit by him against the third applicant, to certain tapes (said to be misleading) supplied to the Tribunal during an inquiry into the renewal of licences held by the fifth applicant, to certain statements made by Mr Bond to an executive of the AMP Society on or about 11 May 1988 and to the implications of those matters as to the suitability of companies associated with Mr Bond to hold broadcasting licences. As to each of them, the notice says that "it will be considered whether Mr Bond and companies associated with him are fit and proper persons to hold the above licences". The licences identified are held by certain of the applicants, namely the third, fourth, fifth and sixth applicants. The fourth paragraph of the notice sets out as a new issue:
"Whether it would be advisable in the public interest for the Tribunal to 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."
After a lengthy hearing, the Tribunal made findings which may be thought to raise questions as to fitness and propriety within the contemplation of s.88(2)(b)(i) of the Act:
"The Tribunal may suspend or revoke a commercial licence if it appears to the Tribunal that it is advisable in the public interest to do so, having regard only to the following matters or circumstances:
...
(b) the Tribunal is satisfied that the licensee
(i) is no longer a fit and proper person to hold the licence ..."
Presumably because it was thought that their making might discourage the Tribunal from suspending or revoking any of the licences, undertakings were proffered on behalf of certain of the present applicants. They relate firstly to the composition of the board of the first applicant, Bond Media Limited, which controls, directly or otherwise, the holders of the relevant licences; secondly, they are concerned to limit the activities of Mr Bond in respect of the licensee companies; thirdly, they relate to the question of settlement of defamation actions brought against the licensees and establishment of an internal "compliance division", apparently designed to secure attention to the requirements of the broadcasting legislation.
The Tribunal did not express a view on the "substance and suitability of the content of the undertakings ...", but delivered what was called an "interlocutory decision concerning the legal issue", which rejected the undertakings, for legal reasons.
The Tribunal mentioned some of the submissions made on behalf of the applicants, one of which included the assertion that the undertakings would fetter Mr Bond's opportunity to control the composition of the board of the first applicant, Bond Media Limited, for the period offered and on the terms offered. The submission went on:
"That is, there would be a majority of non-Bond associated directors, and one of those will be the chairman.
That, we would submit, certainly removes any unfitness of the licensee corporations in relation to these stations ..."
It should be added that the submission from which I have quoted was made on the assumption, adopted for the purpose of the argument, that unfitness would be found, but without any concession in that regard.
The Tribunal took the course of expressing its views, in large part, by way of acceptance of submissions made by counsel assisting. Those views were, in essence, as follows:
1. The Tribunal cannot, in lieu of either revocation or
suspension of a licence or imposition of a condition on a licence, accept an undertaking by way of final disposition of a matter, where the Tribunal has no power to give a direction in terms of the undertaking. Those offering the undertakings were not licensees.
2. The undertakings would not be enforceable under s.25AB of the
Broadcasting Act; if they were, it would not be the Tribunal which would be enforcing them but a court of summary jurisdiction.
3. Conditions could not be imposed under s.85 of the Act, unless
there were a "relevant finding".
4. The power to impose conditions could not be exercised "at
this stage of the inquiry".
The question is one as to the scope of the Tribunal's powers in the conduct of such an inquiry. These are to be found in detail in the Regulations I have mentioned, which permit the Tribunal to suspend or defer the inquiry (reg.3(1)) or to terminate it, a course it may take whether or not its investigation is complete: see regs.8 and 16. To revert to the example given in the third paragraph of these reasons, it would seem to me, with respect, plainly within the Tribunal's power to act under one of these Regulations when given such an undertaking as there postulated - i.e. an undertaking designed to put an end to or prevent a recurrence of the problems investigated. More generally, the Tribunal is given power under s.17(1) of the Act, for the purposes of exercising its powers and functions under the Act, to "make such orders, give such directions and do all such other things as it thinks fit". Doing other things must, in my opinion, include noting and acting upon (or declining to act upon) promises or undertakings given by interested parties appearing before it; that is a function which, as Mr Gyles Q.C., senior counsel for the applicants, contended, administrative tribunals of various kinds undoubtedly perform often enough; see the decision of the New Zealand Court of Appeal in Goodman Fielder Ltd v. Commerce Commission (1987) 2 NZLR 10.
It appears that the main reason why the Tribunal took the view that it could not consider or act upon the undertakings proffered was that it thought that the doctrine laid down by the High Court in Thomson Australian Holdings Proprietary Limited v. The Trade Practices Commission (1981) 148 CLR 150 precluded it from doing so. That case concerned s.80 of the Trade Practices Act 1974 in its then form; it gave this Court power to grant an injunction in certain circumstances. The Court had accepted undertakings which, if valid, obliged the party who proffered it to act in a way which the Trade Practices Act did not necessarily require. It was held that the undertakings should not have been accepted.
The explanation for this is to be gathered from passages in the reasons which are rather lengthy, but the essence of it appears to be in the following sentences:
"Limitations which affect the court's jurisdiction or power to grant a final injunction must be observed in the acceptance of an undertaking when it is offered as a substitute for a final injunction. The court cannot escape such limitations by the expedient of accepting an undertaking in lieu of an injunction. The court cannot put itself in the position of enforcing conduct which it has no capacity to command or compel" (at p 165).
It is of importance to observe that the High Court accepted that there is power in a Court to accept interlocutory undertakings "reasonably related to the orderly procedure of the Court or to the subject matter of the litigation" and final undertakings "relevant to the Court's function in assessing damages". The case lays down no absolute rule that Courts may not accept undertakings creating obligations not within the Courts' power to impose directly, e.g., undertakings by a parent on an application for bail by his or her child.
In applying Thomson's case, it has to be kept in mind that the reference in their Honours' reasons to a lack of power is to be read as including instances in which there is such a lack because the conduct restrained is not necessarily illegal. The doctrine of Thomson's case would seem to apply, for example, to acceptance of an undertaking by a defendant in an action for nuisance to take steps going beyond those necessary to bring the illegality to an end, e.g. an undertaking to cease the activities complained of altogether, or move them to another site within a specified time. It may suit both parties to have such a matter finally resolved in that fashion. Thomson's case appears to reach the result that the Court could not properly accept such an undertaking, even by consent, unless it kept the action alive.
But it is unnecessary for present purposes to resolve the problem of the precise scope of the doctrine in Thomson's case, for it does not apply to the Tribunal's functions presently in question. The undertakings proposed are not, as in Thomson's case, necessarily in substitution for a final order. There will not necessarily be any final order, even if undertakings are not accepted, as the inquiry may merely be terminated without any revocation, suspension or imposition of condition.
If the Tribunal accepts the undertakings proffered or accepts any other undertakings which may emerge from discussion in the course of submissions, it may or may not keep the inquiry alive. If, having taken note of undertakings, the Tribunal decides to terminate the inquiry rather than to suspend or defer it, still taking note of the undertakings is not to be equated to finally disposing of a dispute by an injunction granted by a Court. The licences in question are, like all other similar licences, subject to the continuing power of the Tribunal to revoke or to suspend or to add conditions. Further, the Tribunal may subsequently exercise these powers on grounds which take into account the circumstances already investigated, findings made in the present inquiry and (if it occurs) any breach of undertaking. By this and other means, there are practical sanctions against broken undertakings.
It is true that the undertakings proffered were put forward on the basis that that would be the end of the inquiry; it was the aspect of final resolution of the matter which, reasonably enough, troubled the Tribunal, on the analogy of Thomson's case. But even if the Tribunal terminated the inquiry, there would, in my opinion, be no legal result comparable with judgment finally putting an end to a cause of action, which was the situation in Thomson's case.
The second decision which influenced the Tribunal's view of its powers was that of the Administrative Appeals Tribunal, constituted by the then President, in New Broadcasting Ltd v. Australian Broadcasting Tribunal (1987) 73 ALR 420. It should be said, in fairness to counsel assisting, that they neither put forward before the Tribunal, nor supported before this Court, the notion that the New Broadcasting case would prevent the Tribunal from imposing a condition in an inquiry such as this, without making a finding under s.88(2)(b)(i) of the Act. In the New Broadcasting case, Davies J. was concerned with the construction of the power to impose conditions on renewal of a licence, given under the then s.86(12) of the Act. His Honour thought that a condition going to fitness and propriety could not be imposed under the statute, as it then stood, unless there was "satisfaction as to the three tests I have mentioned above" (p 428), which was a reference to certain tests (including being a fit and proper person to hold the licence) governing renewal. The relevant provisions are in a significantly different form now, and the Tribunal has to consider in this inquiry matters other than imposition of conditions on renewal. Davies J. appeared perhaps to be speaking, in the passage in question, not of lack of power, but to what ought to be done as a matter of proper exercise of discretion. If he had power in mind, he must have read the power to impose conditions on renewal as implicitly subject to restraints derived from other parts of the renewal provisions - an implication I would, for myself, find it difficult to make. On either view, the New Broadcasting case cannot restrict the Tribunal's powers here. To return to the example given in the third paragraph, I can see no reason why the Tribunal could not, in an appropriate case, insert a condition in a licence, by the consent of those affected, requiring that they cease by a specified date to have any interest in the company holding the licence, to avoid what might be considerable trouble and expense in reaching a conclusion on complex matters the subject of inquiry.
Two other matters require discussion. The less important is that the Tribunal was troubled by the circumstance that undertakings were offered from persons who were not licensees. That does not appear to be a separate point; the Tribunal's reservations on that score flowed from its view that it could not take into consideration undertakings to perform acts which the Tribunal could not, under a specific power in the Act, order to be done. Since I am of the view that it may, acting properly and reasonably, take any relevant undertakings into account to such an extent as it thinks fit, in exercising the powers given by the Act, I cannot see that the fact that those proffering undertakings are controllers of licensees, rather than the licensees themselves, is an obstacle.
A more important matter to which some, but not extensive, argument was directed is the construction of s.25AB of the Act. Counsel for the applicants contended that this provision provides a means of enforcement of undertakings; it reads as follows:
"A person shall not -
(a) insult a member, acting member, associate member or acting associate member in or in relation to the exercise of his powers or functions at or in relation to proceedings before the Tribunal at an inquiry;
(b) interrupt proceedings of the Tribunal at an inquiry;
(c) create a disturbance, or take part in creating or continuing a disturbance, in or near a place where the Tribunal is holding an inquiry;
(d) contravene or fail to comply with a direction given by the Tribunal under this Division; or
(e) do any other act or thing that would, if the Tribunal were a court of record, constitute a contempt of that court.
Penalty: $1,000 or imprisonment for 3 months."
Section 25AB(d) certainly suggests that the provision covers what is sometimes called civil contempt, as well as criminal contempt. But the matter was not fully argued and there is a disinclination (exemplified in Sankey v. Whitlam (1978) 142 CLR 1) to decide questions on which criminal liability depends, other than in proceedings by way of prosecution. I have determined not to resolve here the difference of view just mentioned. Whether or not s.25AB creates an offence of failing to carry out an undertaking, it is my opinion that the Tribunal may consider appropriate undertakings made by those interested in the exercise of its functions, and may, where appropriate, change accordingly what would otherwise have been the mode of exercise of those functions. It can, of course, also take into account in an appropriate case any past breach of undertakings; for example, if an inquiry were temporarily suspended or deferred on the faith of undertakings, it could be resumed if the undertakings were not adhered to, and sterner action taken.
For the reasons given, decisions (i), (ii) and (iii) set out above will be set aside. The application seeks no declarations, but it may be convenient to summarise these reasons, so far as they are inconsistent with the views the Tribunal took.
1. The Tribunal has legal power, at the present stage of the inquiry, to impose conditions on licences, the subject of the inquiry, under s.85 of the Broadcasting Act 1942, and it may do so even without finding that it is satisfied that a particular licensee is no longer a fit and proper person to hold its licence.
2. The respondent has legal power to consider, at this stage of the inquiry, undertakings of the kind proffered to the Tribunal and may take the making of those undertakings into account in the exercise of its powers under the Act and Regulations.
I should add that these reasons do not, of course, express or imply any view as to whether, as a matter of discretion, the Tribunal should be influenced by any undertakings given.
There was no discussion at the hearing before me as to the form of relief. There is room for argument as to whether the matter is more appropriately dealt with under para. A or para. B of the application set out above, but it is my opinion that in substance decisions have been made substantially as set out in sub-paras.(i), (ii), (iii) and (iv) of the application. I have not decided the question of construction of s.25AB, involved in (iv). There will therefore be an order that decisions (i), (ii) and (iii) of para. A of the application be set aside.
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