Bond & Ors v Australian Broadcasting Tribunal

[1988] HCATrans 225

IN THE HIGH COURT OF AUSTRALIA

Office or--the Registry

Sydney No Sl02 of 1988

B e t w e e n -

ALAN BOND

First Applicant

BOND MEDIA LIMITED

Second Applicant

BOND CORPORATION HOLDINGS LIMITED

Third Applicant

QUEENSLAND TELEVISION LIMITED

Fourth Applicant

CONSOLIDATED BROADCASTING SYSTEM

(WA) PTY LIMITED

Fifth Applicant

NORTHWEST RADIO PTY LIMITED

Sixth Applicant

DARWIN BROADCASTERS PTY LIMITED

Seventh Applicant

Bond(2)

and

AUSTRALIAN BROADCASTING TRIBUNAL

Respondent

WILSON J

BRENNAN J

DAWSON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 OCTOBER 1988, AT 2.02 PM

Copyright in the High Court of Australia

ClT29/1/VH 1 6/10/88

MR A.B. SHAND, QC:  May it please the Court, I appear with my

learned friend, MR D.K. CATTERNS, for the applicants.

(instructed by Blake Dawson Waldron)

MR P. ROBERTS:  If Your Honours please, I appear with my learned

friend, MR L.S. KATZ, for the respondent. (instructed

by Australian Government Solicitor)

WILSON J:	Mr Shand?
MR SHAND:	Your Honours the application is brought supported by

the affidavit of Mr C.J. Conolly, which appears at

page 137 of the appeal papers.

WILSON J: Yes, we have had an opportunity of reading the

papers, I think, Mr Shand.

MR SHAND:  If Your Honour pleases. May I inquire, Your Honour,

whether, in fact, the Court has received and has had

the opportunity of addressing attention to the

supplementary affidavit of Mr Conolly also?

WILSON J: Yes, we have had.

MR SHAND:  There is only one additional matter of material that

I should draw attention to, Your Honours, and that is

this: reference is made in the papers to the

applications made by these applicants to obtain

particulars of matters involved in the inquiry which

gives rise to the proceedings before the - that is,
the inquiry by the Broadcasting Tribunal. In due
course, after the judgments were delivered by the

Full Court of the Federal Court, from which this

application emanates, Mr Justice Wilcox of the

Federal Court heard argument upon the subject of particulars and delivered judgment in respect of

that matter as recently as this morning.

For completeness, at least, Your Honours, we

would seek to hand up facsimile copies of the judgment

delivered only this morning.

BRENNAN J:  Does it say anything of relevance to the present

application, Mr Shand?

MR SHAND:  At least this, Your Honour, that His Honour's views

as to the entitlement to particulars, or perhaps I
should say, the disentitlement to particulars -

that was the thrust of the judgment - were expressed

as potentially variable according to whatever view

might be expressed by this Court.

ClT29/2/VH	2	6/10/88
Bond(2)

MR SHAND (continuing):  So that it was with full awareness,

of course, of the decision of the Full Court but
with an eye to the possibility that his reasoning
may be inappropriate should this Court grant leave
to appeal and express different views of the matters

involved to the Full Federal Court.

WILSON J:  So as one might expect, His Honour has proceeded

on the basis of the judgment of the Full Court

of the Federal Court.

MR SHAND:	That is so, Your Honour. Yes.
WILSON J:	I do not know that it would assist us but if

you want to hand it up we will not

MR SHAND:  I will not be dwelling upon it at length,

Your Honour, but I will hand it up for whatever

use it may be. If it were of any help I could direct

Your Honours' attention to the particular pages where Mr Justice Wilcox made the remarks to which

I have referred.

As Your Honours will be aware the application

for leave to appeal relates specifically to section 17C

of the BROADCASTING ACT which is a section providing

generally for, under the heading "Ordinary Inquiries",

the situation in which the exercise of the substantive

powers of the Tribunal may be in contemplation - I

use that word as a neutral one at the moment.

Your Honours will be aware that in this particular

case the applicants became involved in the inquiry

giving rise to this application in circumstances

where the television licences which belong to

various of the applicants are involved and are

at stake and in those circumstances there can

be no doubt that the substantive powers of the

Tribunal were in contemplation in relation to

the inquiry which was commenced.

It is merely a matter of history now that

1n the course of attempting to obtain particulars

of the allegations which were in contemplation
by the Tribunal or which these applicants considered
must be in contemplation by the Tribunal in holding
the inquiry - the attempts to obtain particulars
from the Tribunal met with what the applicants

argued was a lack of success which led to the

applications to the Federal Court in order, principally,

to obtain those particulars. Your Honours, of

course, need not be troubled with the detail of

the applications before the Federal Court but

that was the main purpose and thrust of the application

to the Federal Court in the first instance.

ClTJ0/1/AC	3	6/10/88
Bond(2)

MR SHAND (continuing):  In the course of the hearing before

Mr Justice Morling in the Federal Court, and in the course of argument, it was revealed by those appearing for the Tribunal that the Tribunal took

a view of the meaning of section 17C(l) which, as

___ it appeared to these applicants, did not represent

--the proper construction and revealed that the conduct of the Tribunal, in deciding to hold the

inquiry, may well have been such as to indicate that

there was no jurisdiction to hold the inquiry; in

short, that the Tribunal had not, within the meaning

of section 17C(l) proposed to exercise any of its

substantive powers, and that gave rise to the

question which was agitated before Mr Justice Morling,

and later before the Full Court, and which, in

particular, these applicants wish to agitate before

this Court.

The judgments which Your Honours have had the

opportunity of reading in the Full Federal Court

point up the area of debate between the parties as

to the matter of construction, they, in short,

being whether "proposes" in section 17C(l) has what

we would contend to be its ordinary or primary

meaning, namely "intend", or whether, as the tr i bun a 1

contended for before the Full Federal Court, it

meant something a good deal more restricted, namely

"bring forward for consideration"; the essential

distinction between the two approaches being that,
according to the construction for which these
applicants contended, a tentative view needed to be formed by the tribunal in proposing to exercise its

powers, namely a tentative intention to exercise

them which, in the course of the inquiry, would

either develop into a final intention or dissipate,

according to whether or not the evidence appeared to

the Tribunal to justify either the formation of a

final intention, or a situation in which the

evidence was found not to justify the pursuit of

the intention to exercise substantive powers.

We suggest that the battle lines in this

particular case have clearly been drawn between

those two competing constructions. If Your Honours

wished me to indulge in some degree of submission

as to the bones of the process of interpretation

upon which we rely I would certainly be happy to do

so, but may I indicate in regard to the question of
the public importance and general importance of this

question of law the way in which the applicants

submit it should be viewed.

C 1 T31 /1 /HS 4 6/10/88

Bond(2)

MR SHAND (continuing): This is a section, section 17C(l),

of very wide application. As can be seen from

its terms and by reference to section 17A, the

number and variety of substantive powers which,

through section 17C, are available to become

the subject-matter of the inquir½ which is made

__ available by section 17C, is very great and covers

--- a variety of subjects but for present purposes,

in particular, a variety of situations in which

television and radio licences, being of course

commodities of very great commercial value, can

become the subject of investigation so as to

be in jeopardy and so as to face the possibility

of, for instance, revocation or of the imposition

of conditions or of suspension. Those are the

particular subject-matters which these applicants

face in the current inquiry.

It is our submission that if the view taken

by the Tribunal and contended for to dat~ and
no doubt still contended for,is erroneous in
law, then a very large number of inquiries already

heard since the time that this particular section

was introduced by amendment must be regarded

as potentially void or invalid, held without
jurisdiction, and by the same token, if our contention
as to the appropriate construction is upheld,

the future conduct of inquiries of limitless

numbers would likewise be in doubt or in danger

of ultimately being declared nullities, as being

held without jurisdiction because the funamental

act which the Tribunal must indulge in, where

it decides itself to hold an,inquiry, has not

not been satisfied or fulfilled.

I say no more than Mr Justice Marling, at

first instance, found to be the correct approach

in finding in favour of these applicants.

(Continued on page 6)

ClT32/l/ND	5	6/10/88
Bond(2)

MR SHAND (continuing):  We would, therefore,, submit that

the question of law involved here is one of

public importance and is one of very general

application and calls for the consideration of

this Court in the public interest.

In the case of the applicants themselves,

Your Honours, I need not further emphasize the

gravity of the issues that face them in the light

of the prospect that their many television and

radio licences may be revoked or suspended or

the subject of the imposition of conditions.

Your Honour, it is a matter as is obvious

from the record where, and I speak, of course, now

as to the application of section 35A of the

JUDICIARY ACT, where a difference of opinion

exists within the Federal Court as to this matter

of construction and, therefore, another of the

subparagraphs of section 35A can be seen to have

application and we would submit that the further

paragraph, that is paragraph (b) of section 35A

itself, has application in this particular case,

that is, the interests of the administration of

justice in this instance, we would submit, call

for - - -

DAWSON J: That is, the difference of opinion as between

Mr Justice Merling and the Full Court, you say.

MR SHAND:	Yes, Your ~onour.
WILSON J:	But that  j been resolved, surely?

MR SHAND: It has been resolved. Certainly Mr Justice Merling

must be regarded as having been supplanted by the

Full Court decision, Your Honour.

WILSON J: Yes.

MR SHAND:  But I draw attention to it merely as indicating

that there has been a difference of opinion

although, of course, it has been adjusted by
the appellate process. The questions involved
here, Your Honour, we would submit are matters

of, not only importance, but some urgency and

we have drawn attention to the two proceedings

which are presently on foot in the supplementary

affidavit to indicate how the sort of problem

involved here is one which can be regarded as

likely to arise by no means infrequently and I

refer to the case of LAWS V AUSTRALIAN BROADCASTING

TRIBUNAL where, in fact, centrally involved at

least is the proposition that by its conduct within
the BROADCASTING ACT, the Tribunal has prejudged the

issues before it or otherwise become the subject of

ClT33/l/SH 6 6/10/88

Bond(2) (Continued on page 6A)

bias, the argument being, or the matter for

determination apparently being, we would submit,
as to whether or not the conduct of the Tribunal

within the confines of the Act is conduct which

recognizes that the Tribunal must, in the course

__ of its proper duties, form some views, tentative

--- perhaps, which nevertheless do not disqualify it

from the further consideration of matters raised

by way of inquiry.

(Continued on page 7)

ClT33/2/SH	6A	6/10/88
Bond(2)

MR SHAND (continuing): That particular matter involves

some of the considerations that we have here.

WILSON J: Mr Shand, I think we might concede for the purposes

of argument that the matter raises a question

of law of general importance. The Court would

-~-ue assisted if you were to address submissions

to the correctness or otherwise of the decision
of the Federal Court.

MR SHAND: Certainly, Your Honour. In so doing, Your Honour,

it can be seen from the three judgments in the

Full Court that Their Honours came to conclusions

in somewhat differing ways and it will be necessary

for me to refer to them, therefore, in individual

fashion.

BRENNAN J:  But this will be related, I take it, to the

question of the construction of 17C(l)?

MR SHAND:  Very largely, Your Honour. Yes, it would.

Mr Justice Lockhart, Your Honours, upon the matter of construction - and if I can come to it first

even though it does not appear first in His Honour's

judgment - and I refer now to pages 84 to 85 of

the appeal papers. His Honour at page 84 proceeded

to examine the legislative provision itself and

indicated, as section 17C(l) undoubedtly says,

that:

The requirement of sub-s. 17C(l) that the

Tribunal hold an inquiry is occasioned either

by the Tribunal's receipt from a person

of an application under the Act requesting

the exercise of any of its substantive powers

or by its own proposal to exercise any of

its substantive powers.

Section 17B is then set out and may I pass over

it for the moment to line 22:

The effect of sub-s 17C(l) is that the mere

receipt of the request from any person is

sufficient to require the Tribunal to hold

the inquiry subject to the application being

made in accordance with the regulations.

I note that reg. 5, to which I referred

above, provides that the Tribunal may refuse

to receive an application -

which does not comply in certain ways. I pass over

the detail of that. And then at line 5 on page 85

His Honour puts aside the regulations as not being

available to aid the interpretation. Line 6:

ClT34/l/AC	7	6/10/88
Bond(2)

The wording of sub-s 17C(l) "otherwise than

on such an application" appearing in

juxtaposition to the words "or proposes

to exercise any of its substantive powers"

suggests that the "proposal" of the Tribunal

to which the sub-section is directed is
governed either by the receipt of an application
from any person requesting the exercise
of the relevant substantive power or by
the Tribunal's own proposal independently

of the receipt of an application from any

person. The meaning of the word "proposes"

in the context of sub-s. 17C(l) must equally describe the Tribunal's proposal to exercise

a substantial -

maybe that should read "substantive" -

power whichever of the two sources enlivens

its proposal, i.e. whether a request from

a person which in itself imposes a mandatory

duty upon the Tribunal to hold an inquiry

or the Tribunal's own decision. The word

"proposes" is therefore used in two situations,

in one of which an appropriately formulated

application denies the Tribunal a discretion

as to whether an inquiry should be held,
while in the other the decision to hold

the inquiry derives from a discretionary

judgment of the Tribunal itself.

May I pause to say, Your Honours, that we, with

great respect, take issue with His Honour's

interpretation of that particular portion of

section 17C(l) and with the proposition that the

word "proposes" as a matter of construction can

relate to those two situations.

(Continued on page 9)

ClT34/2/AC	8	6/10/88
Bond(2)

MR SHAND (continuing): And if I may come back in a moment to

the precise terminology of the section, we submit

that the word "proposes" can only be read as

relating to the Tribunal's own iniative in deciding

to hold an inquiry and not to a situation where there

has been a request from an outside person for the

exercise of those powers. May I just read the

-=----following paragraph of this judgment:

The language of the sub-section assumes that the mere receipt by the Tribunal of an

application from a person requesting the

exercise of any of its substantive powers

requires some further act of the Tribunal

which may be characterised as a proposal by the Tribunal to exercise a substantive power: if this were not the case the

words "otherwise than on such an application"

would be unnecessary, since the receipt of a request

request from another person is not a proposal

of the Tribunal.

And I pause again to say that this points up the

submission we would wish to make as to where

His Honour fell into error in this regard.	To
proceed:

Those words contrast the proposal of the

Tribunal deriving from some further act after the receipt of a request from a person that it exercise its substantive

powers with a proposed exercise of

substantive powers originating"otherwise

than qn such an application," that is on

the Tribunal's own motion. The further act

of the Tribunal could not be some decision

by it that the power should be exercised,

since a request to the Tribunal from any

person is itself a sufficient trigger to

require the Tribunal to hold the inquiry

subject to the application having been

made in accordance with the regulations.

One must therefore look elsewhere to

identify a further act of the Tribunal

arising in both situations constituting a

proposal. That further act, in my view,

consists not of the decision to hold an

exercise of a substantive power.

inquiry, nor of the formation of an intention

to exercise substantive powers, but of the

Now, Your Honours, may I pause there for the purpose

of coming to what we submit is the significant

question of interpretation. 17C(l), we would submit,

is structured so as to keep separate and distinct

the two situations which give rise to a mandatory

requirement to hold an inquiry. The first situation

is where the Tribunal receives an application

ClT35/l/VH	9	6/10/88
Bond(2)

requesting the exercise of any of its substantive

powers, as the first two lines indicate. May I

leave out the following line and a bit to complete

the proposition which applies to that situation.

When that happens:

The Tribunal shall hold an inquiry into the requested ..... exercise of the power.

That, we submit, is the first and distinct

situation that arises under the subsection and it

contains no element of proposal whatsoever on the

part of the Tribunal. It is triggered conclusively

by the mere receipt of the application. The

second situation is where the Tribunal proposes to

exercise any of its substantive powers otherwise

than on such an application:

The Tribunal shall hold an inquiry into the .....

proposed exercise of the power.

Again, dissecting the terminology, as we submit, is

proper. The phrase:

Otherwise than on such an application -

in our submission, is not to be interpreted as

indicating that upon the receipt of an application

requesting the exercise of a substantive power,
the Tribunal still has to carry out an act of

proposal. It is intended, we would submit, to do

no more than to distinguish the situation where it

is the Tribunal which proposes, from the situation

where there has been an application requesting the
exercise of the powers. In other words, it could

well have been worded,perhaps less graciously, but,

we submit, as a matter of practical meaning, by

saying instead of:

Otherwise than on such an application -

'where no such application has been made:' (Continued on page 11)

ClT35/2/VH	10	6/10/88
Bond(2)

MR SHAND (continuing):  If that is, as we submit it is,

a correct approach to the matter of construction, then

the particular platform from which His Honour
proceeded to reach his conclusions as to the proper

interpretation of the word "propose", as appears in

subsection (1), is removed.

DAWSON J:  Subsection (2) assists your argument somewhat, does not it?

MR SHAND:  Yes, it does, thank you, Your Honour. We submit

it is in support of the proposition we put, yes,
it being a situation where there is no mandatory

requirement at all, and therefore there is no trigger

which brings about the holding of an inquiry, and

it is necessary, under subsection (2), for the

Tribunal to provide the initiative, or the emotive

power, whether in fact the request comes from

outside, or whether in fact it is the Tribunal's

own formulated intention to exercise the powers

there referred to, that is the powers other than

substantive powers.

His Honour did not, we would suggest, appear

to concentrate upon the sort of assistance for the

argument we put which can be gleaned from

subsection (2). If anything, His Honour found

subsection (2) to have the opposite effect.	Now,
on the mere point of construction, Your Honours, the approach taken by Mr Justice Wilcox - - -

BRENNAN J:  Before you leave Mr Justice Lockhart, you

referred to the passage that you have cited as

a platform.

MR SHAND:	Yes.
BRENNAN J:	But if one destroys the platform, it may

be that the argument in favour of the actual

construction that His Honour put upon the section is

the stronger, in this sense, that if there is an

application that .is made, clearly the Tribunal

at themoment of receipt of the application does not

have any inclination of mind. Why should it have

an inclination of mind if it is acting not on the

receipt of an application but on the alternative

self-motivating basis?

MR SHAND:	Your Honour, our submission in relation to that is this: section 17C, in its reference to the
exercise of substantive powers, strongly implies
that an inquiry for that purpose is not to be held
unless there are very serious reasons for so doing.
In a situation where the request comes from outside,
the opportunity for examination of the justification
for that request is not readily available, so that
the legislature has determined that in that

ClT36/l/HS	1 1	6/10/88
Bond(2)

situation the Tribunal must merely accept the

seriousness of the matter, as indicated by an

application from outside. However, bearing in mind

that the inquiry is not to be held without serious

justification for it, where the Tribunal itself

decides to hold such an inquiry, our submission is

-~-- that the section means the Tribunal should not hold

such an inquiry unless there are serious reasons

for doing so. It should not decide to do so for

any frivolous reason, or merely out of curiosity,

or to satisfy its own desire to occupy its time.

WILSON J:  But you read into a request then the - you give

it credit for necessarily raising a serious matter?

MR SHAND:  Yes, Your Honour.

WILSON J:  Why? Why does not the section apply to any

request that is not allowing some room for the

regulation not on its face frivolous or vexatious?

MR SHAND:	Indeed, it does, Your Honour, we submit, but what we put is that the two situations should be viewed
as both addressing situations of considerable
importance or gravity, or at least - - -
DAWSON J.	What you are really saying is that something is

required to focus the inquiry, either the application,

and that is something on which you can focus, or a

proposal and that is something on which you can

focus.

MR SHAND:  Yes, that is so, Your Honour, but where in fact -

there needs to be a situation, we would submit,

where the end point of such an inquiry can be the

exercise of substantive powers more than just a

passing thought, more than merely an impression

formed in the mind of the Tribunal that some topic

involved in substantive powers is worthy of

investigation.

(Continued on page 13)

c1T36/2/HS	12	6/10/88
Bond(2)

MR SHAND (continuing): There must be, we would subrrrl.t, and we

submit the section points to it. The Tribunal must feel

there was a basis upon which the exercise of those

powers is a possibility; there is some prospect

that such powers would be exercised.

BRENNAN 3-:- That is not good enough. That is what, in

substance, the Full Court has held. In other

words, it is not a quest ion simply of saying,

"This is such a serious matter that the exercise

of the powers must be regarded as a possibility".

Your proposition has to go to the extent of saying

that there is a sufficient inclination of mind

derived from the facts as to lead the Tribunal

to an intention properly formed.

MR SHAND:  To a tentative intention, Your Honour.

BRENNAN J:  To a tenative intention properly formed.

WILSON J:  As at present advised we intend to exercise

the substantive powers.

DAWSON J: It is really equivalent to a show-cause. You

either show cause why the application should not
be acceded to or why this particular proposal

should not be acceded to.

MR SHAND:  With respect, Your Honour, I am not sure that one

approach or another quite fits this situation.

The Tribunal, we would submit, at least have in

mind an intention subject to whatever the inquiry

may reveal. That we call a tentative intention

but it is one which is provisional only at that
point and clearly subject to what material revealed

at the inquiry may indicate as the justified course.

DAWSON J:  Why do you say that? You can propose something

without having an intention of carrying it through.

MR SHAND:  We would submit that that is the primary meaning II h • •

o propose, Your Honour; to ave some 1ntent1on f fl

of taking a certain course. It need not be a

final intention.

BRENNAN J: That does carry it to the point of saying that

the Tribunal before it enters upon the inquiry

must have an inclination of mind that subject

to anything to the contrary it will exercise the

power.

MR SHAND:  Yes, Your Honour.

BRENNAN J: That is requiring the party affected by the

inquiry to start off behind scratch, is it not?

ClT37/l/AC	13	6/10/88
Bond(2)

MR SHAND:  Your Honour, it is a situation where, we would

submit, one commonly finds this sort of situation

arising. In disciplinary proceedings, for instance,
where in fact it is the disciplinary body that

calls upon the officer or employee, whoever it

may be, to show cause,	the very same situation,
-~-~e submit, arises.	A tentative view calls for,

as Your Honour Mr Justice Dawson indicates may

be the appropriate term, the person addressed

to show cause but at the same time conducts an

inquiry which will put before that person the

material which may give rise to the need to show

cause.

DAWSON J:  We do it with prerogative writs.

MR SHAND: Yes, Your Honour. That is so.

WILSON J:  But what about allegations of bias then, that

the mind has been tilted against the respondent?

MR SHAND:  Your Honour, we would submit there are many cases,

in fact Mr Justice Morling listed some of them

in the LAWS cas~ where by virtue of the way in

which the authority is set up, the authority is

called upon, in effect, to lay the charge or make

the allegations and then to adjudicate upon them.

We submit there is nothing new about the mixed

function that is involved in that sort of situation

and that this is merely yet another of them.

WILSON J: If it were given the meaning for which you

contend would natural justice require an opportunity

to be heard before the mind of the Tribunal was

tilted against the respondent?

MR SHAND:  We would submit not, Your Honour, in the case

of this particular step that has to be taken because

it is a step which must be followed, in our submission,

by the person addressed by the proposal to hear

all the evidence, to compete in the inquiry, in

effect,and to answer any allegation.

BRENNAN J:  What are the means by which the Tribunal gets

itself to the state of mind for which you contend

for 17C(l) purposes?

(Continued on page 15)

ClT37/2/AC	14	6/10/88
Bond(2)

MR SHAND: It has certain statutory sources of information,

Your Honour, which have been in regular use for

a long time and I can direct Your Honours to them

fairly simply.

BRENNAN J:	You do not suggest that 17(3) provides the power?
MR SHAND:	No, Your Honour.

BRENNAN J: In other words there is no power of the Tribunal

to make an inquiry to see whether it should call

on somebody, and I put it in inverted commas,

"to show cause".

MR SHAND:  There is not a power, Your Honour, we would submit,

under the heading "Ordinary Inquiries" for that

to be achieved - in other words under section 17C.

BRENNAN J:  Yes.

DAWSON J:	What form do you suggest the proposal would take
to satisfy your requirements?
MR SHAND:	A form of resolution, Your Honour - a recorded

decision.

DAWSON J: Resolving to - just take an example out of the

list of things in 17A - suspend a particular licence

or - unless. How would it be worde~ the proposal?

MR SHAND:  No, Your Honour. It would be a decision under

which that the Tribunal stated that it proposed

to exercise substantive powers whether it

enumerated them - it probably would - to exercise

certain substantive powers and for that purpose

to hold an inquiry into that matter.

DAWSON J:  And you would require the substantive powers

to be specified, otherwise it would not be much

of a proposal, would it?

MR SHAND:  It would not, no. They would need to be described -

picked out one from the other from all the

substantive powers which could be involved.

WILSON J:  So really the mind has to be fairly well formed,

albeit tentatively.

MR SHAND:  Your Honour, if it is a disciplinary matter or

a "fitness and propriety" matter it is by no means

difficult for the Tribunal, for instance, to pick

out the various measures which might be imposed

as the exercise of substantive powers as, for

instance, by cancellation, revocation, imposition

of conditions. They could all be specified so

as to be comprehensive and we submit that would be a

perfectly adequate and proper way of doing it.

ClT38/l/AC	15	6/10/88
Bond(2)

DAWSON J:	And at least you would know what you had to meet
then.
MR SHAND:	Yes.  And there follows thereafter, in our

submission, if that is the sort of inquiry which

is involved, as a requirement of the natural

-~_-justice provisions of the Act a requirement that

even if progressively - but a requirement none

the less - that notification be given to the object

of the proposal as to what was an issue or

tentatively alleged or some such expression.
As in disciplinary proceedings where the object

of such proceedings is, we submit, always entitled to know what are the allegations. We would submit

this inquiry where it relates to such a situation

as this, and we would not pretend that the inquiry

cannot vary widely according to whichever

substantive powers were invovled, but this inquiry
involving these licences must be regarded as having
a close analogy to the disciplinary-type situation

where a person's interests are in jeopardy as

a result of the possibility of a finding of

misconduct, lack of fitness and propriety.

DAWSON J:  Where does the resolution fall short in this

particular case?

MR SHAND:  In this case, Your Honour, the evidence was widespread

and unequivocal to the effect that the Tribunal

had formed no intention of any kind to exercise

substantive powers in that particular sense that

I mentioned.

DAWSON J: In any sense really.

MR SHAND: It had formed no view at all; it had formed no

intention in respect of the exercise of substantive

powers.

DAWSON J:	Was it putting forward a proposal of any kind?
MR SHAND:	That is all it did, Your Honour.
DAWSON J:	What was the proposal it was putting forward?
MR SHAND:	The proposal was to bring forward for examination -

the expression used - - -

WILSON J: "The issues which will be addressed during the

inquiry" - I notice was set out on page 3.

ClT38/2/AC	16	6/10/88
Bond (2)

WILSON J:  It is in connection with the payment of

$400,000? That is what you - - -

MR SHAND:	Yes.
WILSON _J :_	And whether it would be advisable in the public

- - interest.

MR SHAND:	Yes.
WILSON J:	There is a reference to the substantive powers

that are under question, but as is common ground,

I think, there is nothing in the proposal that goes

to the extent that you submit is necessary to

found the jurisdiction of the Tribunal?

MR SHAND:  No, that is certainly so, Your Honour, although

if I can use the word "contemplation" again,

contemplation as to the exercise of those powers

appear in the middle of page 3.

WILSON J:	Yes.
MR SHAND:	That is the public notice that had to be issued

following the decision of the Tribunal under

section 17C(l).

BRENNAN J:  Mr Shand, take those issues that are set out

there. The payment may have been innocent, or it

may have had an untoward explanation and it would be

obviously not appropriate to exercise any of the

powers of the Tribunal if the explanation is

innocent, and the Tribunal, I should not have

thought, could possibly form a view, even tentative,

as to whether the payment was innocent or in some

way culpable without an inquiry.

MR SHAND:  In our submission, the procedure which was adopted,

Your Honour, is that which has always been open and in this case was this:. this inquiry grew

out of a television current affairs programme	in January of this year during the course of
which Mr Bond was heard to say something that may
have indicated that the $400,000 had been provided
by way of settlement for an unjustifiable reason,
to use a general term; so that having received
information of such a statement by Mr Bond in the course of the programme, the Tribunal was in a
position to form a view, albeit tentative, that this
sum of money was paid for unacceptable reasons, and was therefore, we would submit, in a position
proper to have proposed the course which section 17C(l)
contemplates, again, tentative only. And it is as a

C1T39/1/HS	17	6/10/88
Bond(2)

result of the information-gathering resources which

the Tribunal has - and I indicate to Your Honours
that they appear in section 17 of the BROADCASTING ACT,

in particular, in subsection (1) where it says:

For the purpose of exercising its powers

and functions under this Act, the Tribunal

shall have power -

I pass over the word "orders", to -

give such directions and do all such other

things as it thinks fit.

The word "directions" enable it, and certain of the

judgments - Mr Justice Pincus in particular -
considered that that particular expression ''give such

directions" is wide enough to enable information to be

gathered from people generally, coupled with

section 124 which provides very wide powers whereby

the Tribunal can obtaine information from licensees
and those connnected with the licensees; in either
case, those powers being capable of real enforcement.

So that there is no situation under which the Tribunal, if section 17C(l) is interpreted as we

submit it should be, is left powerless to inquire

prior to making the decision by way of proposal that
we submit has to be made. The Tribunal has the power
and has, in fact, in this case, exercised it.

Your Honours, that is the matter of construction which I will not belabour any further unless I can be

of any assistance but - - -

BRENNAN J:  I think I had distracted you earlier by drawing your

attention to some problems that I saw in the judgment

of Mr Justice Lockhart. Do you wish to say anything

about Justice Wilcox and Justice Pincus? (Continued on page 19)

ClT39/2/PLC	18	6/10/88
Bond(2)
MR SHAND:	Yes.	Can I just direct Your Honours, in very sum rnary

form, to the way in which the matter was approached

by Mr Justice Lockhart other than on the strict

matter of construction. At pages 80 and 81,

His Honour addressed various situations in which

_Ihe Tribunal may have more or less knowledge or

-information concering a matter which it might

investigate. Dealing with two cases: one, it may

have ample information which could bring it to
a decision to form a proposal, the other extreme

where the material it had was so inherently

improbable that it would not trouble itself

further with regard to an inquiry, and the

intermediate situation where some further

inquiry, it might think, be called for.

His Honour then, at page 81, dealt with

what His Honour considered would be a disadvantage

of the interpretation for which we contend, namely,

that to reach a proposal of the kind we submit

the section requires it would place the Tribunal

in an adversarial role and involve a degree of

prejudgment in relation '.to the:

matter ..... the Tribunal is required to

investigate -

where it might -

be seen as prosecutor, judge and jury.

I merely direct Your Honours' attention to the

remainder of what appears on page 81. That was

a situation which was also addressed by

Mr Justice Wilcox and, in our submission, is properly

and amply covered by certain statements made by -

if I can just take Your Honours to one made by

Mr Justice Morling in the LAWS case. It is an

annexure to the supplementary affidavit of

Mr Conolly. It is the first of the two judgments

His Honour said:	that are annexed, and at page 17 of that judgment	An Act that requires a tribunal to hold an
inquiry into, and adjudicate upon a proposal of which it is itself the author is likely to give rise to the sort of problems which
have arisen in the present case. Nevertheless,
this is how the relevant provisions of the
BRAODCASTING ACT are framed ..  As Murphy J
pointed out in BUILDERS REGISTRATION BOARD OF
QUEENSLAND V RAUBER ..... the mixing of administrative,
adjudicative and other functions is common in
trade and securities commissions and professional
disciplinary bodies.

His Honour referred to certain examples of that.

At page 18:

ClT40/l/MB	19	6/10/88
Bond( 2)

There is no doubt that the courts will restrain

a tribunal which may be reasonably suspected

by fair minded people of have prejudged the

case unless by reason of the terms of the
relevant legislation or of necessity or waiver

the course proposed to be taken is authorized.

WILSON J:  But you cannot get much help from that. The

question is whether it is authorized.

MR SHAND:	In this case?
WILSON J:	Yes.
MR SHAND:	Yes, I merely put that, Your Honour, as being

a proper approach. Instead of the degree of initial

reluctance which at least two of Their Honours

displayed - and perhaps all three did in the

Full Court - to accepting a situation where a

somewhat adversarial role , as it has been described,

came into existence, it is proper and, we submit,

in this case, appropriate, to regard that role

as being what the legislature has intended and

provided for.

BRENNAN J:  Is the function of reaching the state of mind

which is necessary to make a proposal on your

submission a function which is attended by the

obligation to do natural justice?

MR SHAND:  May I supply two answers to that, Your Honour.

Firstly, we would submit in the framework in which

that function would operate, and bearing in mind

that the forming of that state of mind must be

followed by the holding of an inquiry, which must

be conducted according to the rules of natural justice,

we would submit that any suggestion of absence of
natural justice during that first step if obviated

because the structure of the Act and the way in

which it operates remove from the mantel of a

denial of natural justice - if that fits the

situation - that very conduct.

(Continued on page 21)

ClT40/2/MB	20	6/10/88
Bond(2)

MR SHAND (continuing): The second - if I just remember the way I

was going to answer Your Honour in the second

instance.	I think probably I have come to it,
Your Honour.	The provision that is made for the

inquiry, we would submit, takes away anything

--:.....::of the constraints and the requirements which	suggestive of a denial of natural justice because
are placed upon the holding of the inquiry by the particular natural justice provsions of the
Act.

WILSON J: One of these decisions, I cannot just recollect which

one it is, Mr Shand, but one proceeds on the

basis that the membership of the 'r.ribunal would

change - - -

MR SHAND: It does, Your Honour, that is LAWS.

WILSON J:  - - - and those that achieved the initial

inclination of mind would be disqualified from

then presiding at the inquiry?

MR SHAND:  I am grateful to Your Honour because that was the

second proposition I was going to raise, yes. That

is the case of LAWS, Your Honour - - -

WILSON J: That was LAWS, was it?

MR SHAND:  - - - where Mr Justice Merling suggested that

whilst the initial decisions that may have been

made by the Tribunal were made by three members

of it, that any inquiry which followed could and

should be conducted by different members of the

Tribunal and that that in itself would obviate any suggestions of denial of natural justice.

WILSON J:  When mention is made of three members of the

Tribunal. The decision to put forward a proposal

is simply made by the Tribunal at a meeting of

the Tribunal which may be attended by all the

members of the Tribunal?

MR SHAND:	Yes, it is quite possible, Your Honour.
WILSON J:	You do get into a natural justice problem - I am

not thinking of having a right to be heard, but

I am thinking of the appearance of bias. It poses

some difficulty?

MR SHAND:  I do appreciate that that is a consideration which

one must bear in mind, Your Honour, but if in

fact the Act provides for it, as we submit it does,

appropriate safeguards, namely the holding of an

inquiry, in the case of the LAWS situation it was

found, at least at first instance by

Mr Justice Merling, that the remarks made by those

ClT41/1/SR	21	6/10/88
Bond(2)

three members of the Tribunal went much further

than they need to have gone and in fact did, on a

reasonable understanding of them, betray a certain

prejudgment or perhaps bias.

DAWSON J:  No one has ever suggested that a tentative view

_is bias, have they,and I think there are many

--cases to the contrary?

MR SHAND: That is certainly the view we would take,

Your Honour.

DAWSON J: It is the view the authorities take, is it not?

MR SHAND:  Yes. Your Honour, that is the submission we make

and -

BRENNAN J:  Your basic proposition is this, is it not, that

"proposes" in its primary meaning means intends

and there is no reason to be derived from the

context of the Act why that primary meaning should

be displaced. The argument against you is, having

regarding to the nature of the power and the

absence of any supplementary inquisatorial power
conferred by 17C, that the primary meaning, if that
is the primary meaning, should not be adopted but

the secondary meaning is the one to be preferred?

MR SHAND:  Yes, with respect, that is so, Your Honour and

we seek to call in aid the fact that wherever the
word "propose", "proposes" or "proposed" is used

elsewhere in the Act, it clearly carries the

primary meaning and that there is no good reason
for departing from it. Could I just make a few

more remarks as to the bases upon which Their Honours

reached their conclusions. Mr Justice Lockhart

took such matters as programre standards, which fall

within substantive powers, and said, "How could it be that the word, proposes, means what you contend

it means in that sort of instance?" Now, it is

·our submission that it can quite properly mean what

we submit it means in relation to the many and

varied matters that come within section 17A and

that all that is required, in that instance, is for

the Tribunal to form a tentative view as to the

possible advisability of altering program standards,

imposing different periods for divine worship upon

the prograillD.ling time and matters of that nature.

(Continued on page 23)

ClT41/2/SR	22	6/10/88
Bond(2)

WILSON J: BuJ:. possible - you mentioned the word "possibility"

before .and ·Justice Brennan: picked you,up· on it.

Possible desirability does not go tar enough on

your submission.

MR SHAND:::--_ No, perhaps I should delete that from what I put Your Honour

tentative intention to alter programme standards

or impose - - -

WILSON J:  Because clearly in this case there is the

possibility of the exercise of substantive powers?

MR SHAND:  Yes, although the Tri b:una 1 has been at great pains,

Your Honour, to negative even the thought of the possibility. In other words, they say we do no more than bring forward for consideration an exercise of substantive powers of this kind.

I hope I have put clearly enough to Your Honours

that we submit that the two sections that I have

mentioned provide ample facilities for the
gathering of information so as not to leave a gap

within the Act.

WILSON J:  124 was the second of those, what was the first

one again, Mr Shand?

MR SHAND:	Section 17, Your Honour.
WILSON J:	17?
MR SHAND:	Section 17, yes, and section 124.
WILSON J:	Yes.
MR SHAND:	I have perhaps misinformed Your Honour. In

respect of the broad view taken of section 17

it was Mr Justice Merling who took such a view

not Mr Justice Pincus. Could I conclude what

we wish to say in regard to the second and third

Mr Justice Wilcox regarded the problems that would	judgments, Your Honours, by merely putting this.
arise in relation to the construction for which
we contended as being serious ones. They included
the ·adversarial situation, to which I have already
referred. That is at page 103. He regarded this
construction as giving rise to a situation where the tribunal would only have two options, either
to propose in the sense for which we contend or
to ignore the information entirely.and, therefore,
consider that there should be an intermediate power. of inquiry under 17C(l).
We would submit that the preceding rights to inquire and to inform itself really take the force away from those cons·iderations and enable
17C(l) to function according to the primary meaning
of "propose". The means,His Honour Mr Justice Wilcox

ClT42/l/MB	23	6/10/88
Bond( 2)

examined those two sections, section 17(1) and

section 124(2), and the powers that were available

under those sections, at pages 106 to 108.

His Honour's comment in due course was to the

effect that notwithstanding that they provided

_considerable powers, they were not quite as

---wide as being able to hold an inquiry and to have

oral evidence taken. We would submit that that

is by no means a conclusive consideration.

May I say that neither Mr Justice Wilcox nor

Mr Justice Pincus in any way expressly adopted

the strict process of construction to which I took Your Honours in the first instance as to

that phrase within section 17C(l). I think it

is correct to say that His Honour Mr Justice Lockhart

alone regarded that as the basis for an approach.

At page 122 Mr Justice Pincus relied upon

reasoning concerning the issue of prejudgment

resulting from the meaning of "propose", to which we draw attention and thought it undesirable that

that situation should result from a construction

of the Act and did consider that there was the

gap in relation to the inquiry powers of the

Tribunal which would result from our preferred

construction.

(Continued on page 24)

ClT42/2/MB	24	6/10/88
Bond(2)

MR SHAND (continuing):  I hope and think, Your Honours, I

have covered in very summary form the considerations

which led Their Honours to their conclusions.	We
would submit the construction for which we

contend is, to say the very least, a very arguable

one and we would submit in due course, one to be

-~-~referred.

WILSON J: Thank you, Mr Shand. Yes, Mr Roberts?

MR ROBERTS:  Your Honours, on behalf of the respondent it

is submitted that this is not an appropriate

case to grant special leave to appeal. It is

submitted that the decision of the Full Federal

Court on the construction point was unanimous and

is not attended by sufficient doubt to warrant

the granting of special leave. Your Honours, the

interpretation that the applicants seek to put

on section 17C would involve the Australian

Broadcasting Tribunal in having formed an adverse

view, albeit tentatively, against the applicants

or persons in the position of the applicants before

the inquiry commenced. Now, Your Honours.-

DAWSON J: But that does not amount to bias, does it?

MR ROBERTS:  Your Honours, whether a submission along those

lines would be made in due course - - -

DAWSON J: Well do you have any authority that to form a

tentative view constitutes bias?

MR ROBERTS:  I know of none, Your Honour. I would not - - -

DAWSON J:  I cannot give it to you at the moment, but there

is a wealth of authority to the contrary.

MR ROBERTS:  To the contrary, of course. But, Your Honours,

whether or not if that interpretation were the

correct interpretation persons would be making

submissions along those lines, one does not know.

However, Your Honours, the position that the

Tribunal is in before having an inquiry in relation

to evidence gathering is this:  Qur friend points

to section 17 and 124 as being possible sections

which could be utilized to gather information.

Section 124 only relates to information from

licencees and it is submitted that clearly

section 17 is of the same effect.

In relation to the present inquiry, for example,

each of the witnesses that has so far been called has not been an employee of a licencee and,indeed,

it is difficult to see how any informations from
those persons could have been compulsor·ily acquired

other than in an inquiry under section 17C where

ClT43/l/SR	25	6/10/88
Bond(2)

the Tribunal has powers to enable oral evidence

to be obtained and to summon witnesses to give

evidence before it.

DAWSON J: Mr Roberts, just before you proceed with that

line of argument. Do I understand you to be

- conceding that the primary meaning of "propose" in

---the subsection is other than the meaning for

which you contend, but you are saying that a

secondary meaning should be adopted because of

the various considerations to which you are now

referring?

(Continued on page 27)

ClT43/2/SR	26	6/10/88
Bond(2)

MR ROBERTS:  Your Honours, let me make the position perfectly

clear.	I submit that the word "propose" in
section l 7C	means "bring forth for consideration"

precisely as the Full Federal Court interpreted it

in the judgment which is presently under consideration.

-~-- What I am saying now is that if the applicant's 0

th t II II

contention were correct a propose means

"intend" albeit tentatively, then the following

consequences would inevitably emerge and I am

just exploring that in the context of the

submissions that my friend has made.

DAWSON J: Well, then, you say that the primary meaning is

as you first put it.

MR ROBERTS:  Yes.

DAWSON J: Yes.

MR ROBERTS:  Your Honours, the Tribunal obviously is

reluctant to adopt the approach - or they say it

is incorrect-but that approach, of course, would

be,_ to some extent, seen as being unfair to an

applicant for the Tribunal to have adopted a view,

albeit tentatively, that it should exercise its

substantive powers in a way adverse to the applicants.

Presumably and, indeed, it seems to be the fact that the applicants perceive that their approach to

section 17G would enable the applicants to have

some procedural benefits which they say would flow

from such an interpretation. The procedural

benefits which they apparently perceive as flowing

from such an interpretation include the provision

of particulars of allegations and, presumably
together with that, it would enable the applicants

to somehow limit the scope of the inquiry to the

parameters of the particulars. This apparently

seems to be the concomttant of the argument that

section 17C	requires the Tribunal to form this
provisional intent.
Now, if that be correct, if that approach be

correct, one should contrast the type of procedure

that would be adopted in a self-starting approach

where the Tribunal proposes in the sense contended

for, that is, intends, with an application by a

third party because if these procedural limitations

apply, is it said, I ask rhetorically, they also

apply in relation to the situation where an applicant
asks the Tribunal to exercise its substantive powers.

There is nothing in section 17C(l) to indicate

that the Tribunal would need to form any intention in that situation. Now, is it then suggested that

the procedure to be adopted in the two sorts of

:inquiries would be diametrically opposed. In the

one we would need particulars of allegations; we

ClT44/l/SH	27	6/10/88
Bond(2)

would need a tentative view to be formed by the

Tribunal. In the other, the Tribunal need form

no view, tentative or otherwise. There will be

no need for particulars, no need for any of these

other procedural matters which, presumably, the

applicant contends for. It would be an extraordinary

_::-_- position, we would submit, if there would be two

sorts of procedures depending on which way

section 17C(l) was triggered.

Clearly, this would be contrary to the way the section is formulated and, as Their Honours

have pointed out in the Full Federal Court, it

would be an invidious position that the Tribunal

would be placed in. It would be a matter of

chance, perhaps, whether a person would be first

on the scene to ask the Tribunal to exercise its

substantive powers in a case such as the one

under consideration or whether the Tribunal of

its own motion would consider it. It would be a

pure matter of chance, then, of how or what
procedure would be adopted in the inquiry,

depending on who got in first, the third party

or the Tribunal. This would be a preposterous

situation, we would submit, and one that was

never intended by the legislature and this is

indicative, we would submit, that the word

"propose" must mean "bring forth for consideration"

and that the state of mind of the Tribunal from

the outset would be the same in both instances

and there is no necessity for it to form any

views adverse to the licensees before holding such

an inquiry.

(Continued on page 29)

ClT44/2/SH	28	6/10/88
Bond(2)

MR ROBERTS (continuing): One may also auestion, if mv friend's suanission is correct, that the trigger mechanism that he would

contend would be for a recorded decision that the --Tribunal propose to exercise substantive powers.

Well, presumably, when one looks at the notice of

inquiry here, all that does is reproduce the words

in the section which would tell you absolutely nothing

about the state of mind of one or more of the

Tribunal members.	It just reproduces the word of the
section.	My friend said, "Well, that's sufficient,

that's enough to trigger the operation of a 17C

inquiry". Well, Your rlonours, how would one ever

know, in those circum~tances, what the state of mind

of the Tribunal is other than the fact they announce

it in some other way or perhaps in an AD(JR)
application for a statement of reasons: the Tribunal

of the inquiry was bec:ause all you would have

said, "We commence this inquiry because of X, Y and Z".

publicly would be a notice of inquiry stating that

the Tribunal proposes to exercise its substantive

powers in a particular way which is exactly the type

of notice that we have here. And one wonders what

possible difference it could make to the conduct of

an inquiry other than the procedural ramifications

which are obviously contended for by the applicant here.

DAWSON J:  I mean, you could put the proposal

in the form of, "The Tribunal proposes, subject to

the facts being established and argument convincing

it that it should do so, to do so-and-so." It really

is tweedledum and tweedle-dee in many respects, is it

not? That would satisfy the section.

MR ROBERTS: Well, that probably is so, if that is correct.

It is just a mere formulation of words. It really

would not make a shred of difference, one would have

thought, one way or another. The only difference

that could be essential here is the procedural

ramifications for which the applicant contends. already looked at that matter in relation to the

old BROADCASTING AND TELEVISION ACT in HARDIMAN's

case. If I could just draw Your Honours attention,

please, to HARDIMAN, 144 CLR 13. This was a case
involving an inquiry under the BROADCASTING AND

TELEVISION ACT. It does not have the word "proposal" may I say from the outset. That word is not included

in this particular Act.

The case concerned the transfer or acquisition

of shares by another company and there was an inquiry

and there was some limitations placed on cross-examination

by the Tribunal. At page 33, in the joint judgment,

ClT45/l/PLC	29	6/10/88
Bond(2)

there is a reference to the prosecutors who were a

party to the proceedings to supply particulars

and in the middle of the page Their Honours said

this:

The suggestion that it was for the

prosecutors to give specific particulars of the contraventions alleged, that they

should call evidence and that they could

not elicit evidence by cross-examination of Control's witnesses misconceives both the nature of the inquiry and the functions

and duty of the Tribunal in relation to
the inquiry. The prosecutors made it very

clear that they had no knowledge of

specific contraventions and that they had

no specific case to present. But they made

it equally clear that the circumstances

detailed in the Tribunal's own information

paper and in the oral evidence raised the

possibility that contraventions had taken
place, that it was the duty of the Tribunal
to inquire into them and that the prosecutors

wished to assist in that process by cross-examining Control's witnesses.

(Continued on page 3lt

ClT45/2/PLC	30	6/10/88
Bond(2)

MR ROBERTS (continuing):

The proceedings were not proceedings in a criminal court which might result in

conviction and penalty where it would have

been appropriate for the party alleging

the offence to specify it and give

appropriate particulars of it. The inquiry

was an administrative inquiry in which the

Tribunal had a statutory responsibility to inquire into the issue. It was bound to discharge its responsibility,

notwithstanding that the same issue could

arise in proceedings for offences against

the Act.

Your Honours, we would submit that equally so

under this regime of an inquiry under section 17C

there can be no question of particulars being

supplied or of a case to meet of a person in

the position of the applicant, no matter what	interpretation is given to the word "propose 11
in section 17C. We would say it just could not
arise in relation to this sort of an inquiry,
which means in effect, "What are we really arguing
about?". It is a matter of little importance other than as a procedural matter and we would
say whatever interpretation is given to the word "propose," the procedure that would be adopted
would not be one that would involve the Tribunal
in giving particulars of a case to meet and other
concomitants that are appropriate to criminal
and civil litigation.

It is just inapposite for the type of inquiry

that is postulated under section 17C. So,

Your Honour, we would submit that the question

of statutory construction was correctly decided

by Their Honours in the Full Federal Court.

would seek to draw Your Honours attention in	And there are a couple of passa7es to which I
the various judgments. Could I draw Your Honours'
attention firstly to page 90 of the application
book, in the judgment of Justice Lockhart.

His Honour considered the two sections,

section 17C(l) and section 17C(3) and it was

contended on behalf of the present applicant on the appeal to the Full Federal Court that the Tribunal could not utilize section 17C(3)

for the type of inquiry that it was engaged on

so if it was an inquiry into a substantive power

there was only one provision that it could utilize

and that was section 17C(l). His Honour said,

at page 90 of the application book:

ClT46/l/ND	31	6/10/88
Bond(2)

If sub-s 17C(3) bears the construction

which I favour and if the Tribunal cannot

hold an inquiry pursuant to sub-s 17C(l)

unless it first forms an intention to
exercise a substantive power, it follows

that there is no provision in the Act

empowering the Tribunal to hold an inquiry

when it simply seeks information relevant

to the exercise of a substantive power,

but has not decided to exercise the power.

There is no lacuna in the Act.

In other words, if the contention of the present

applicants was correct there would be a lacuna

in the Act. So to interpret the statute in that

way would be to create a lacuna which, clearly,

we would say, is unnecessary.

In the same vein, His Honour Justice Pincus,

at page 122 of the appeal book, at the bottom

of the page, said:

If the respondents are right about

both sub-sections (1) and (3) then there

is a gap: the Tribunal cannot hold a merely

preliminary inquiry into the conduct of

a particular licensee under sub-s. (3) because

that relates to broader questions and it

cannot hold such an inquiry under sub-s. (1)

because its right to do that depends upon

its having an intention to exercise the

substantive power.

(Continued on page 33)

ClT46/2/ND	32	6/10/88
Bond(2)

MR ROBERTS (continuing):  So, both of Their Honours there

are pointing out that to adopt the interpretation

that was contended for by the applicant in this

Court would be to create a gap or a lacuna in

the legislation for no apparent reason. Your Honour

Justice Dawson in a reference to section 17C(2)

--~mentioned that it may support the argument of

my learned friend in relation to section 17C(l.).

Could I just draw Your Honour's attention to

page 88 of the application book where Justice Lockhart

dealt with the word "proposes" in section 17C(2)

and came to the opposite conclusion to that

postulated. So it can be used, apparently, to either

support or not to support, depending on which way

one looks at that particular subsection.

Your Honours, looking at the draft notice

of appeal, if I may, which is at page 149 of the

application book, it appears that grounds 4, 5, 6

and 9 relate to the statutory construction question.

Ground 7 states that:

The Full Court of the Federal Court of Australia erred in taking into

account the supposed need for the

sensitive operation of the BROADCASTING

ACT.

Your Honours, our researcheE have not shown that
that word was utilized by any of Their Honours,

we may be in error, although - - -

BRENNAN J: Sensible,,is not it?

MR ROBERTS:  The word "sensible" was used by both

Justice Lockhart and Justice Pincus.	Now I do
not know whether that is supposed to read:	"The

Full Court of the Federal Court erred in taking

into account the supposed need for the sensible

operation of the BROADCASTING ACT." I will say no

more in relation to that. Your Honours, the ground

for the first time in the Full Federal Court. It	enumerated 8 raises this point that was mentioned
was not a matter ventilated before Justice Morling, at first instance and it was a matter that
Justice Pincus alone found against the Tribunal
and it, of course, is a factual matter and if
special leave were granted it - - -

BRENNAN J: That is not put forward as a ground of special

leave at the moment, is it?

MR ROBERTS:  Not at the moment, but it is in the draft

grounds of appeal.	I am just drawing Your Honour's
attention to that matter.	Your Honours, could I

remind Your Honours that section 17C · inquiries are

ClT47/l/SR	33	6/10/88
Bond(2)

concerned with a large variety of inquiries, only

one of which is a disciplinary, to use my friend's
word, type of inquiry. The matters are enumerated,

as Your Honours have pointed out, in section 17A

and they include such matters as determining

prograrrrne standards, for example the Tribunal may

_ _::-_bring forth for consideration whether or not it is

would involve all of those sorts

appropriate that children's prograrrrnes should include here obviously

particular matters or something along these lines.

of inquiries being conducted in a similar fashion

and with the same consequences. It is not just

in this one case, it is in every sort of 17C(l)

inquiry where the Tribunal, of its own motion,

proposes the exercise of a substantive power.

(Continued on page 35)

ClT47/2/SR	34	6/10/88
Bond( 2)

MR ROBERTS (continuing): And there are a large variety of

matters there and one can see that there could be

problems if such an interpretation were correct

and Justice Lockhart, in his judgment, has specified

some of the problems which he envisaged could arise.

That is at page 82 and 83 - that is referred to by

____ Justice Lockhart. Your Honours, in conclusion the

Tribunal submits that the decision of the Full

Federal Court was clearly correct and that special

leave should not be granted in this matter.	If Your
Honours please.

WILSON J: Thank you, Mr Roberts. Yes, Mr Shand?

MR SHAND:  If Your Honours please, one of my friend's submissions

is said to assert that the point being taken here,
or sought to be taken in the appeal for which

special leave is sought, related only to matters of

procedure. They do go to the question of jurisdiction

and I hope we have made that clear to the very Act

which. in section l 7C (1)_ the Tribunal is required to carry out

in order to permit an inquiry to take place, and

to speak of this application as being concerned only

with matters of procedure is, we submit, to misconceive

the point.

None the less, in our submission, the appeal is

designed, if leave is granted, to enable the character

and nature of this inquiry to be determined and,

according to the character and nature of the inquiry
as determined, the rights, such as they may be, which

these applicants have to natural justice, will vary

as, we submit, the well-established authorities do

indicate. May we refer Your Honours to KIOA V WEST

159 CLR 550 at - - -

BRENNAN J: Is this for the purpose of saying that the content

of natural justice varies according to the circumstances?

MR SHAND: That is so, Your Honour, yes.

BRENNAN J: That is a proposition that does not need elaboration

by authority, I should not have thought.

MR SHAND·: It needs no emphasis, Your Honour, that is so.

Well, to the same effect, Your Honour, NATIONAL COMPANIES AND SECURITIES COMMISSION V NEWS CORPORATION, 156 CLR 296.

So that we do submit it is a matter of very considerable

substance in relation to such matters as the right to

particulars which the applicants may have.

Your Honours, my friend's submissions included a

question rhetorically as to how a party appearing

before the Tribunal could ever know the state of mind

of the Tribunal. The simple answer to that is, it

learns it from the recorded resolution which the

Tribunal arrives and which it exposes for publication.

It is put that conjoining within section 17C(l)

of the two types of situation can give rise to procedures

which are entirely different in terms of the way in

ClT48/l/VH	35	6/10/88
Bond (2)

which inquiries are conducted under that subsection.

In our submission, not so.	The Tribunal is required,
of course, to apply natural justice.	The regulations

which are provided for under this Act indicate the

requirements that an application must conform to and I merely refer to them - regulation 4 requires that:

An application -

must -

be in accordance with the appropriate approved

form -

must -

indicate the power ..... in respect of which the

application is made -

that is the power of the Tribunal, must -

outline the grounds on which the exercise by

the Tribunal of that is sought and such other

information ..... as is required by the form -

must -

be signed -

et cetera, and I think that is all I need read of that.

And the Tribunal, under regulation 5 is entitled to refuse an application which:

does not comply substantially with the requirements

requirements .....

.(b) does not c.cmta.in sufficient information to

enable the Tribunal to commence an inquiry; or -

is otherwise -

scandalous, vexatious, frivolous or an abuse.

(Continued on page 37)

ClT48/2/VH	36	6/10/88
Bond(2)

MR SHAND (continuing): In our submission, one finishes

up with the same situation,ultimately, of the

inquiry,whichever course is followed.

In regard to HARDIMA.N's case, Your Honour,

-::__- _ we would merely say this:  an entirely different

application before the Tribunal at that time under

legislation which has since, of course, been

repealed; an entirely different point was involved,

namely, that the part that might be played in the

inquiry then being held by an outside party,

namely, the Australian Labor Party, and the

contention being dealt with quite separate and

distinct from this matter, namely, whether an

outside party could be put in a situation which

a prosecutor would be forced to adopt in

criminal proceedings. In our submission, the

two situations are in no way comparable. Those

are out submissions in reply.

WILSON J:  Thank you, Mr Shand. The Court will retire for

a moment to consider the course it should take.

AT 3.34 PM SHORT ADJOURNMENT

ClT49/l/SH	37	6/10/88
Bond(2)

UPON RESUMING AT 3.42 PM:

WILSON J: Although the proper construction of section 17C(l)

of the BROADCASTING ACT 1942 is a matter of general

-=-----_importance, each of the members of the Full Court

of the Federal Court construed the word "proposes"
in that subsection as meaning to, and I quote, "bring
or put forward for consideration"._ In
the opinion of the Court, that construction is not

attended with sufficient doubt to warrant the grant

of special leave. The application for special leave

must therefore be refused.

MR ROBERTS:	Could I ask for costs of the application?
WILSON J:	I do not suppose you can oppose that, Mr Shand,

can you?

MR SHAND:	I have no argument to put, Your Honour.
WILSON J:	The application will be refused with costs. Is it

necessary to advert to the motion, that which must

necessarily fail?

MR SHAND:  No, it is not, Your Honour.

WILSON J: Very well. That concludes the matter.

AT 3.44 PM THE MATTER WAS ADJOURNED SINE DIE

ClTS0/1/VH	38	6/10/88
Bond(2)