Bond v Australian Broadcasting Tribunal

Re: ALAN BOND; DALLHOLD INVESTMENTS PTY LIMITED; BOND CORPORATION
HOLDINGS LIMITED; BOND MEDIA LIMITED and DAVID ROY ASPINALL
And: AUSTRALIAN BROADCASTING TRIBUNAL
Re: QUEENSLAND TELEVISION LIMITED; CONSOLIDATED BROADCASTING SYSTEM
(W.A.) PTY LIMITED; NORTHWEST RADIO PTY LIMITED and DARWIN
BROADCASTERS PTY LIMITED
And: AUSTRALIAN BROADCASTING TRIBUNAL
Nos. G349 and G513 of 1989
FED No. 533
Broadcasting - Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart(1), Pincus(1) and Gummow(1) JJ.

CATCHWORDS

Broadcasting - commercial radio and television licensees - what constitutes such a licensee as "no longer a fit and proper person to hold the licence" within the meaning of para. 88 (2) (b) (i) of the Broadcasting Act 1942.

Administrative Law - judicial review - deficiencies in findings of primary fact upon which ultimate finding based - whether reviewable error - whether each finding of primary fact separately reviewable as a "decision" - Administrative Decisions (Judicial Review) Act 1977, s. 5.

Judiciary Act 1903

Administrative Decisions (Judicial Review) Act 1977

Broadcasting & Television Act 1942

Broadcasting Legislation Amendment Act 1988

Federal Court of Australia Act 1976

Mickelberg v R. (1989) 86 ALR 321

Australian Broadcasting Tribunal v Bond (1988) 19 FCR 259

Briginshaw v Briginshaw (1938) 60 CLR 336

Edelstein v Deputy Commissioner of Taxation (NSW) (1989) 86 ALR 257

Lamb v Moss (1983) 76 FLR 296

Bond Media Ltd. v Australian Broadcasting Tribunal (Pincus J., 31 May 1989, unrep.)

The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. (1953) 88 CLR 100

Lombardo v Federal Commissioner of Taxation (1979) 40 FLR 208

Television Capricornia Pty. Ltd. v Australian Broadcasting Tribunal (1986) 13 FCR 511

Ashbridge Investments Ltd. v Minister for Housing and Local Government (1956) 1 WLR 1320

Secretary of State for Education and Science v Tameside Metropolitan Borough Council (1977) AC 1014

Sutherland Shire Council v Finch (1970) 123 CLR 657

NZI Financial Corporation Ltd. v New Zealand Kiwifruit Authority (1986) 1 NZLR 159

The Minister of State for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (Full Court, 28 June 1989, unrep.)

Associated Provincial Picture Houses Ltd. v Wednesbury Corporation (1948) 1 KB 223

Puhlhofer v Hillingdon London Borough Council (1986) 1 AC 484

Broadbridge v Stammers (1987) 76 ALR 339

Apthorpe v Repatriation Commission (1987) 77 ALR 42

Australian Broadcasting Tribunal v Bond Corporation Holdings Ltd. (1989) 84 ALR 669; 86 ALR 424

D v National Society for the Prevention of Cruelty to Children (1978) AC 171

Western Television Ltd. v Australian Broadcasting Tribunal (1986) 12 FCR 414

New Broadcasting Ltd. v Australian Broadcasting Tribunal (1987) 73 ALR 420

Mahon v Air New Zealand (1984) 1 AC 808

HEARING

SYDNEY

#DATE: 12:9:1989

No. G349 of 1989
Counsel and Solicitors Mr. R.V. Gyles Q.C.,
for the Applicants: Mr. D.K. Catterns instructed by

Messrs. Blake Dawson Waldron.

Counsel and Solicitors Mr. R.J. Burbidge Q.C.,
for the Respondent: Mr. P. Roberts, Mr. L. Katz

instructed by the Australian Government Solicitor

No. G513 of 1989
Counsel and Solicitors Mr. F.M. Douglas Q.C.,
for the Applicants: Mr. R.S. Angyal

instructed by Messrs. Allen Allen & Hemsley.

Counsel and Solicitors Mr. R.J. Burbidge Q.C.,
for the Respondent: Mr. P. Roberts,

Mr. L. Katz instructed by the Australian Government Solicitor.

ORDER

No. G349 of 1989

The decision of the Australian Broadcasting Tribunal made on 26 June 1989 that Queensland Television Limited, Consolidated Broadcasting System (W.A.) Pty. Limited, Northwest Radio Pty. Limited and Darwin Broadcasters Pty. Limited are no longer fit and proper persons within the terms of sub-paragraph 88 (2) (b) (i) of the Broadcasting Act 1942 be set aside.

The decision of the Australian Broadcasting Tribunal made on 26 June 1989 that Mr. Alan Bond would not be found to be a fit and proper person to hold a broadcasting licence be set aside.

The Australian Broadcasting Tribunal pay the costs of the applicants of this proceeding (including any reserved costs of motions in this proceeding heard on 1 August 1989).
No. G513 of 1989

The decision of the Australian Broadcasting Tribunal made on 26 June 1989 that Queensland Television Limited, Consolidated Broadcasting System (W.A.) Pty. Limited, Northwest Radio Pty. Limited and Darwin Broadcasters Pty. Limited are no longer fit and proper persons within the terms of sub-paragraph 88 (2) (b) (i) of the Broadcasting Act 1942 be set aside.

The decision of the Australian Broadcasting Tribunal made on 26 June 1989 that Mr. Alan Bond would not be found to be a fit and proper person to hold a broadcasting licence be set aside.

The Australian Broadcasting Tribunal pay the costs of the applicants of this proceeding (including any reserved costs of motions in this proceeding heard on 1 August 1989).

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

JUDGE1

Introduction

These proceedings were heard together, pursuant to an order made by us on 1 August 1989. The applicants in matter No. G513 of 1989 previously had been additional applicants in matter No. G349 of 1989; they ceased to be parties to those proceedings by another order we made on 1 August 1989. In the result, whilst the proceedings were heard together, there was separate representation for each set of applicants. Counsel for the Tribunal opposed the proceedings taking the form we have described, but the course taken in our view was clearly correct both as a matter of procedure and practical sense, as will become apparent as we proceed with these reasons.

The applicants seek relief against the respondent ("the Tribunal") under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") in respect of eleven "decisions" made by the Tribunal or alleged to have been made by the Tribunal, under the Broadcasting & Television Act 1942 ("the Act" or "the Broadcasting Act"). The relevant provisions of the Broadcasting Act are in the form in which they stood after the commencement of the Broadcasting Legislation Amendment Act 1988. Pursuant to a direction under sub-s. 20 (1A) of the Federal Court of Australia Act 1976, the original jurisdiction of this Court has been exercised by a Full Court.
The proceedings are thus applications in the original jurisdiction of this Court for administrative review of decisions made or allegedly made by the Tribunal under the Broadcasting Act. The proceedings should not be regarded as by way of appeal, in any sense of that term, from the Tribunal; cf. Mickelberg v R. (1989) 86 ALR 321 at 332-333.
The first applicant in matter No. G513 of 1989, Queensland Television Limited ("QTL"), is the licensee of the Brisbane television service with the call sign QTQ-9. The second applicant, Consolidated Broadcasting System (W.A.) Pty. Limited ("CBS"), is the licensee of two radio stations in Western Australia, 6AM in Northam and 6KG in Kalgoorlie. The third applicant, Northwest Radio Pty. Limited ("Northwest"), is the licensee of two further Western Australian radio stations, 6KA in Dampier-Karratha-Roeburne and 6NW in Port Headland. The fourth applicant, Darwin Broadcasters Limited ("DBL"), is the licensee of radio station 8DN in Darwin.
None of the applicants in matter No. G349 of 1989 holds any relevant licence issued under the Act. Hence, the difference in quality of their interest in this litigation. However, they submit that the Tribunal has made decisions concerning them in respect of which there is a right to review in this Court under the provisions of the ADJR Act. The applicants submit (and we accept) that even if they are not directly the subject of reviewable decisions, their interests are adversely affected by such decisions, so that they are "persons aggrieved" within the meaning of sub-s. 3 (4) of the ADJR Act.
The third and fourth applicants in matter No. G349 of 1989, Bond Corporation Holdings Limited ("Bond Holdings") and Bond Media Limited ("Bond Media"), are listed public companies. The first applicant (Mr. Bond) owns 99.9% of the issued share capital of the second applicant, Dallhold Investments Pty. Limited ("Dallhold"). He is a director of Dallhold and Executive Chairman of Bond Holdings. Some 42% of the share capital of Bond Holdings is publicly held; 36.2% of the share capital of Bond Media is publicly held. Dallhold Investments holds 58% of the share capital of Bond Holdings, and 12.2% of the shareholding in Bond Media. Bond Holdings controls, by virtue of its ownership of various subsidiaries, 53% of the share capital of Bond Media. The fifth applicant (Mr. Aspinall) was, at all material times, the Chief Executive of the Bond Media Division of Bond Holdings and, inter alia, Executive Director of QTL. (Mr. Aspinall was added as an applicant by order made by the Court on 3 August 1989.) The applicant licensees in matter No. G513 of 1989, QTL, CBS, Northwest and DBL, are all subsidiaries, at one or more removes, of Bond Media.
Although complaint is made in a number of respects of what has been done by the Tribunal, it is sufficient at this stage to refer to what the applicants have called the first decision and the second decision. These are contained in a 14 page document issued by the Tribunal on 26 June 1989 and headed: "BOND INQUIRY Fit and Proper Issue". The crucial paragraph is on pages 13 and 14, as follows:

"In relation to Mr Bond, we consider that he would not be found to be a fit and proper person to hold a broadcasting licence ('the first decision'). The relationship between Mr Bond and the licensee companies is relevant to a consideration as to whether we can be satisfied that the licensee companies are no longer fit and proper persons to hold the licences. For the reasons set out, we find that the licensee companies are no longer fit and proper persons within the terms of s. 88 (2) (b) (i) of the Broadcasting Act ('the second decision')."

Salient Facts

The events which gave rise to the present proceedings commenced as long ago as 2 February 1983. On that day, there was broadcast over QTQ-9, as part of the "Today Tonight" programme, material alleging gross abuse of office by Sir Johannes Bjelke-Petersen, then Premier of the State of Queensland. On 4 February 1983, the Premier commenced proceedings for defamation against QTL, the licensee, in the Supreme Court of Queensland. In January 1985, Bond Holdings, of the board of which Mr. Bond was Executive Chairman, acquired the shares in QTL. Mr. Bond became Chairman of the board of QTL and remained so until 31 March 1987. He then ceased to be a director of QTL.
On 17 October 1985, Mr. Bond met the Premier at his office. The Premier raised the question of his defamation action and Mr. Bond said he would look into the matter. Negotiations involving the solicitors for the parties and others then ensued. On 2 January 1986, Mr. Aspinall sent a letter to QTL's solicitors instructing them to draw up, in consultation with the solicitors for the Premier, an agreement whereby QTL would pay $400,000 to settle the matter. On 17 February 1986, Mr. Bond met the Premier in Brisbane and proposed he accept $50,000 in cash and $350,000 in alternative forms of payment such as land or a non-repayable loan. Further negotiations followed, in which the solicitors of the parties participated.
On 1 April 1986, the defamation proceedings by the Premier were settled by payment of $400,000. On 31 July and 1 August 1986, the Tribunal conducted a hearing as part of its inquiry into the renewal of the licence for QTQ-9, pursuant to s. 86 of the Act, as it then stood.
The Australian Labor Party was granted leave to appear as a party at that hearing. On 5 August 1986, the then Leader of the Opposition in the Queensland Parliament made allegations in that Parliament relating to the propriety of the settlement. Between 17 and 21 November 1986, the Tribunal heard further evidence (including that of Mr. Bond and Mr. Aspinall) relating to the circumstances surrounding the settlement. On 29 May 1987, the Tribunal announced its decision to renew the licence of QTL for QTQ-9.
On 21 January 1988, Mr. Bond was interviewed by Miss Jana Wendt on the television programme "A Current Affair". He stated:

"(C)ertainly the Premier made it under no doubt that if we were going to continue to do business successfully in Queensland, then he expected that matter to be resolved."

As a result of that statement, the Tribunal commenced the inquiry which has given rise to the present proceedings.

Sub-section 17C (1) of the Act provides:

"17C (1) Where the Tribunal receives an application under this Act requesting the exercise of any of its substantive powers, or proposes to exercise any of its substantive powers otherwise than on such an application, the Tribunal shall hold an inquiry into the requested or proposed exercise of the power."

Sub-section 81AA (1) provides that a commercial licence (a description answered by the licences involved in these proceedings) shall only be granted to a company formed within the limits of the Commonwealth or a Territory and having a share capital. Section 85 of the Act provides that, subject to limitations not here relevant, the Tribunal may, during the currency of a licence, by notice in writing to the licensee, vary or revoke any of the conditions of the licence or impose further conditions. Sub-section 88 (2), so far as is relevant at this stage, provides that the Tribunal may suspend or revoke a commercial licence where it appears that it is advisable in the public interest to do so having regard only, inter alia, to the matter or circumstance that the Tribunal is satisfied that the licensee "is no longer a fit and proper person to hold the licence". The suspension of a commercial licence shall be by notice in writing to the licensee and shall be for a specified period not exceeding 7 days; during the period of suspension of a licence, a licence has no force or effect, but the period of currency of the licence continues to run: s. 88E.

On 2 March 1988, the Tribunal issued a Notice of Inquiry pursuant to Regulation 9 of the Australian Broadcasting Tribunal (Inquiries) Regulations 1986. Litigation in this Court ensued. The Full Court held that the Tribunal had acted in accordance with sub-s. 17C (1) of the Act: Australian Broadcasting Tribunal v Bond (1988) 19 FCR 259.
The Notice of Inquiry stated that the Tribunal had commenced an inquiry into issues relating to certain commercial radio and television licences "owned by companies associated with Mr. Alan Bond". The television licence was QTQ-9 Brisbane, and the radio licences were 6AM, 6KA, 6KG, 6NW and 8DN. The Notice continued as follows:

"This Inquiry follows the viewing by the Tribunal of an unedited tape of an interview given by Mr Alan Bond on the program 'A Current Affair' on 22 January

1988. The Tribunal also examined the transcript of the last QTQ-9 renewal. The issues which will be addressed during the inquiry are as follows -

1. Whether anything connected with the payment of $400,000 in settlement of a defamation action by Sir Joh Bjelke-Petersen against Queensland Television Limited has any implications as to the suitability of companies associated with Mr Alan Bond to hold the above broadcasting licences. In this context it will be considered whether Mr Bond and companies associated with him are fit and proper persons to hold the above licences.

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

(a) suspend any of the said licences associated with Mr Bond;

(b) revoke any of the said licences;

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

3. Such other matters relevant to the inquiry as the Tribunal sees fit. Other television and radio licences owned by companies associated with Mr Alan Bond are as follows:

TV Radio TCN SYDNEY 2UE SYDNEY GTV MELBOURNE 3AK MELBOURNE FNQ CAIRNS AREA 6PM PERTH TNQ TOWNSVILLE AREA 6GE GERALDTON STW PERTH

These licences are currently the subject of other inquiries to which the issues canvassed in this inquiry will be relevant."

It is apparent from the terms of para. 2 set out above, that the Tribunal was inquiring as to the exercise of powers both under ss. 85 and 88 of the Act, that is to say with the imposition and variation of conditions and also with suspension and revocation of licences. We also observe in para. 1 the statement that in the context there stated "it will be considered whether Mr. Bond and companies associated with him are fit and proper persons to hold the above licences" (emphasis supplied). Mr. Bond held no licences. Nor could he become a licensee. Sub-section 81AA (1) of the Act, to which we have referred, made this plain. Further, insofar as the Tribunal was inquiring as to the exercise of powers under s. 88, it was asking of the licensee companies not whether they were fit and proper persons to hold the relevant licences, but whether each of them was "no longer" a fit and proper person to hold the relevant licences.
Thus, one observes in the very Notice of Inquiry which set in train the series of events which produced the decisions the subject of the present applications for judicial review, some distortion in the focus of the Inquiry.
On 21 October 1988, the Tribunal issued a Notice of New Issues which added issues numbered 2A, 2B, 3A and 3B to those in the earlier Notice. In the events that have happened, new issues 2A and 2B are no longer relevant. However, issues 3A and 3B remained live issues throughout the conduct of the Inquiry. They are as follows:

"3A. Whether Mr Bond expressly or impliedly asserted to an executive of the AMP Society on or about 11 May 1988 that:-

(a) staff of a television station or stations with which Mr Bond was associated were at his direction gathering material on certain share transactions entered into by the AMP Society;

(b) the broadcasting of that material would be contrary to the interests of the AMP Society;

(c) he would cause that material to be broadcast by a television station or stations with which he was associated unless the AMP Society ceased to act contrary to the interests of Mr Bond and of companies with which he was associated in relation to a proposed election for the board of directors of Bell Resources Ltd. 3B. Whether if made, anything connected with the making of these assertions has any implications as to the suitability of companies associated with Mr Alan Bond to hold the above broadcasting licences. In this context it will be considered whether Mr Bond and companies associated with him are fit and proper persons to hold the above licences." (Emphasis supplied.)

We draw attention to the further statement in issue 3B that the Tribunal would be considering whether, in the context there stated, Mr. Bond was a fit and proper person to hold the licences in question.

The new issues in 3A and 3B are related to a telephone conversation between Mr. Bond and Mr. Leigh Hall, an executive of the Australian Mutual Provident Society on 11 May 1988. Mr. Hall later gave evidence before the Tribunal and was cross-examined. The Tribunal stated that it was impressed by him as a witness.
On 8 and 10 February 1989, the Tribunal was in the course of receiving submissions from counsel. It appears from the transcript of proceedings for those days that counsel assisting succeeded (over opposition) in having the Tribunal accept that it should not consider whether the Premier of the State of Queensland had solicited a bribe from Mr. Bond, or otherwise acted improperly. The successful submission was that it would be inappropriate to make any finding at all as to the motives of the Premier, or as to the proper inferences to be drawn from the evidence as to what the Premier did. Before us, the applicants challenge acceptance of this submission as "the sixth decision".
The "Decision on Facts" issued 7 April 1989
On 7 April 1989, the Tribunal issued a 35 page document which it headed "Decision on Facts". The Tribunal stated that it had sat for 42 days and heard some 31 witnesses (including Mr. Bond, Mr. Aspinall and Mr. Hall) received some 476 documents, and that some 4,500 pages of transcript had been recorded. The Tribunal went on to state:

"In regard to the findings which follow, we indicate that none have been made on the balance of probabilities. We have adopted an extremely high test that has demanded a level of certainty required in our view by the importance of the issues and the seriousness of the consequences of adverse findings."

The Tribunal applied that standard of proof explained in Briginshaw v Briginshaw (1938) 60 CLR 336 and Edelstein v Deputy Commissioner of Taxation (NSW) (1989) 86 ALR 257 at 264, or some higher standard; before us there was no criticism of the Tribunal on this score.

The Tribunal then turned to identify five issues on which findings of fact were made. The first four of these remain relevant to the present proceedings. They were, in the words of the Tribunal, as follows:

"1. The nature of the transaction between Mr Bond and Sir Joh Bjelke-Petersen relating to the defamation settlement

2. The level of candour by the licensee at this Inquiry and during the QTQ Inquiry.

3. The meaning to be attributed to Mr Bond's statement to Ms Jana Wendt on 21 January 1988.

4. Whether Mr Bond in a telephone conversation with Mr Leigh Hall of the AMP threatened to use his television interests in a manner inimical to the obligations of a licensee."

In the course of dealing with issue 2, the Tribunal said:

"We are clearly of the view that Mr Bond and Mr Aspinall misled the Tribunal in Brisbane as to the events of January/ February (1988), and this deception was calculated to create an impression that the agreement (as to the settlement of the defamation proceedings) was finalised in a manner contrary to the reality as it was known to them both."

In the document issued on 7 April 1989, the Tribunal made a number of other statements in the course of dealing with the four issues which we have described. In these proceedings, the applicants have extracted from that document what they say are five further "decisions" made under the Act in respect of which they seek judicial review under s. 5 of the ADJR Act. We return later in these reasons to this concept of "decision" and to what follows from Lamb v Moss (1983) 76 FLR 296 for the present case as to the meaning of "decision". These five "decisions" were said to have been made on 7 April 1989; the "sixth decision", to which we have referred, was said to have been made on 8 or 10 February 1989. The applications for judicial review in respect of these "decisions" were brought outside the time limit fixed by s. 11 of the ADJR Act. On the footing that a grant of an extension of time under s.11 would not foreclose the question of whether review should be granted, we gave the necessary leave in respect of these "decisions".
Whilst what is complained of by the applicants may amount to a series of decisions in the statutory sense, it also may be described as the making of findings of primary facts. From these findings, the Tribunal proceeded to make a finding as to Mr. Bond's unfitness and thence came to the ultimate decision, to which the ADJR Act applies, namely what the applicants designate the "second decision". This deals with lack of fitness and propriety, in the statutory sense, of the licensees.
The five "decisions" to which the applicants point are findings:

(i) that Mr. Bond agreed to pay the Premier $400,000 to settle the Premier's defamation claim, not believing that that sum was justified by the claim alone, but believing that if he did not settle at that figure, the Premier might harm his interests in the State of Queensland ("the seventh decision"),

(ii) that Mr. Bond sought to disguise the true amount agreed to be paid to the Premier in the belief that a sum in excess of $50,000 could not survive public scrutiny ("the eighth decision"),

(iii) that Mr. Bond deliberately gave misleading evidence to the Tribunal in 1986 in relation to the events of January and February 1986, and in relation to the nature of his meeting with the Premier on 17 February 1986 ("the ninth decision"),

(iv) that Mr. Bond deliberately gave false evidence to the Tribunal in relation to his motivation for making an offer to the Premier at the meeting of 17 February 1986, and in relation to the telex of 2 January 1986, which was relevant to the determination of the date by which agreement had been reached between Mr. Bond and the Premier ("the tenth decision"),

(v) that Mr. Bond threatened to use his TV staff to gather information on a business competitor (the AMP Society) and to expose the competitor by showing the results on television ("the eleventh decision").

The "Fit and Proper Issue" Document Issued 26 June 1989

The Tribunal concluded the "Decision on Facts" of 7 April 1989 by stating that the Inquiry would resume on 1 May 1989. Counsel assisting the Tribunal and the parties were directed to lodge before that date any statements and submissions relating to the relationship "between our findings and fitness and propriety under the Broadcasting Act and as to the possible implications . . .". It was stated that an adequate opportunity would be given to address any relevant issues that might arise from the findings. When the Inquiry resumed on 1 May 1989, counsel assisting addressed the Tribunal. His submissions included the following:

"And if I may briefly foreshadow our position, it is that if as we anticipate the evidence will support the factual proposition that Mr. Bond is the controller of the various licensee companies then we would argue and submit that the - any - the finding as to Mr. Bond personally would translate necessarily to the licensee companies themselves. So, in short, we would see it as a matter of looking at the persons affected by the adverse findings and to consider the relevance of your finding in relating to their fitness and propriety as it relates to the fitness and propriety of the licensee company itself."

On 2 May 1989, the Tribunal received written submissions by counsel assisting. Under the heading "Fit and Proper Person" the following appears:

"It is submitted that the Tribunal should proceed by -

A. Determining which individuals affected by adverse findings are by reason of their association with the licensee companies such that findings as to their individual fitness and propriety are relevant to the question of fitness and propriety of the licensees; B. Determining whether those individuals would or would not be fit and proper persons to hold a broadcasting licence; C. If they or any of them are not fit and proper individuals, whether the licensees are thereby not fit and proper persons."

Under the heading "Fitness and Propriety of Licensee Companies", the following appears:

"If it be accepted that Mr. Bond as an individual would not be a fit and proper person to hold the licence, the licensee companies, the subject of the Inquiry, are no longer fit and proper persons within the meaning of the Act."

The Tribunal was attracted by these submissions, which were hotly disputed by opposing counsel. On 26 June 1989, the Tribunal published the further 14 page document to which we have already referred. The Tribunal stated that the issue to be determined was "the application of our Decision on Facts as to the statutory requirement that a licensee be a fit and proper person to hold the licence". We pause to observe that this would appear to be a reference to s. 88, not s. 85 of the Act. The Tribunal continued:

"The Tribunal licences (sic) corporations, not individuals. At the outset there is therefore a question to be resolved concerning the relationship between certain individuals connected with the licensee company."

The Tribunal went on to state that each of the licensees in question was a wholly owned subsidiary of Bond Media, analysed the corporate structure involved, and continued:

"Counsel for Mr Bond submitted that we should look at the licensee as a corporate structure and exclude from our consideration the role Mr Bond plays as the major shareholder. The submission is that although Mr Bond has the major shareholding, he does not control the licensee company, the directors do. The contrary proposition to this submission is that the person who has the power to appoint the directors has the overriding control of the company and that this approach is the one that should be followed in relation to the Broadcasting Act. . . We accept the submission of Mr Gyles that any finding as to fitness and propriety must be related to the licensee. In assessing that quality, however, we consider that due to the nature of his shareholding and applying the principles set out in (Western Television Ltd. v Australian Broadcasting Tribunal (19896) 12 FCR 414), an assessment of Mr Bond's personal fitness and propriety is relevant in determining the issue as it affects each of the licensee companies. In addition to the above concept we are also of the view that Mr Bond's position within the corporate structure does enable him to initiate and involve himself in management decisions which affect the broadcasting activities within the group. . . Our view is that Mr Bond, through his shareholding, does have a continuing and substantial interest in the directions and decisions of the various licensee companies. It is also clear that Bond Media Ltd occupies an important position in the Bond Group of companies. These are additional reasons to consider Mr Bond in relation to the licensee companies.

It follows that in determining this issue we consider it appropriate to look at the activities of Mr Bond in terms of the overall test of fitness and propriety to enable us to come to a decision in respect of the licensee companies. . . We have considered Mr Aspinall's present position in relation to the licensee companies and we are of the view that he, in terms of the findings which relate to him from the Decision on Facts, is not relevant to our present consideration . . . Mr. Bond remains, by virtue of his association with the licensee companies, the only relevant individual in the sense that consideration of his fitness and propriety is relevant to the question of fitness and propriety of the licensees." (Emphasis supplied.)

Before us, counsel for each set of applicants submitted that the singling out of Mr. Bond as the only relevant individual whose fitness and propriety were relevant to the question of the fitness and propriety of the licensees, reflecting as it did the submissions by senior counsel assisting the Tribunal, disclosed a profound error of law in the construction of sub-s. 88 (2) of the Act. This provides:

"88. (2) 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:

(a) . . .

(b) the Tribunal is satisfied that the licensee:

(i) is no longer a fit and proper person to hold the licence. . ."

We return later to counsel's submissions on this point. It is sufficient at this stage to note that counsel for the applicants submitted, inter alia, that it was necessary for the Tribunal to have regard to each corporate licensee and that it was insufficient to have regard to the activities of one person only. Before the Tribunal the licensees led evidence, in the main unchallenged, as to the background and functions of relevant persons in addition to Mr. Bond; they also led some evidence as to the conduct of the management of the broadcasting stations in question. Before this Court, counsel for the applicants pointed to the failure of the Tribunal to consider evidence as to the character and qualities of the directors and key executives of Bond Media and the licensees, and the performance of the licensees in the discharge of their obligations under the Act; rather, counsel submitted, the Tribunal concentrated on Mr. Bond who is neither de jure nor de facto in control of any licensee.
What follows is a summary of some of the evidence to which we referred above, this being evidence that was unchallenged. In his statement, Mr. Nigel Milan said that since November 1987 he had been Chief Executive of the Bond Radio Division of Bond Media. Previously he was Deputy Chief Executive of the Macquarie Radio Network and had been employed in the commercial radio industry for 9 years. He said that during the time he had been Chief Executive, he did not believe that Mr. Bond had visited any of the stations involved. He said that also, to his knowledge, Mr. Bond had never sought to become involved in the operation of any of the stations in any way. In his statement, Mr. Ian Muller said that he was appointed Chief Executive and director of QTL in May 1987. He said that at no time had Mr. Bond or any other Bond Holdings executive to his knowledge sought to become involved in the operation of the Board or the selection and presentation of news and current affairs programmes on QTQ-9. He had met Mr. Bond on four occasions only. In one of his statements, Mr. Rice, a director of Bond Media since November 1988, said:

"I am not aware of any attempt since the acquisition by the Bond interests on 31 March 1987 to influence the selection or presentation of news or current affairs by any member of the National Nine network, nor do I believe that any such attempt is likely to be made because I consider that there is a clear under- standing that these services must be independent and impartial. Any attempt to influence the selection or presentation of news would be firmly resisted by me. That is not to say that any part of the Bond Group of companies should not make suggestions as to possible news items. Indeed, GTV-9 (another licensee in the Group) occasionally receives news releases for various parts of the Bond Group. Such suggestions would be considered by the News Department on their merits to determine their newsworthiness. The fact that the suggestion is derived from a Bond affiliate is irrelevant in determining the newsworthiness of the story."

Mr. Rice had been the Managing Director of the licensee of GTV-9 until December 1988. Mr. Rice said in a supplementary statement that to his knowledge neither Mr. Bond nor anyone acting for him had ever attempted to interfere with or influence the selection or presentation of news or any programme telecast on GTV-9.

Lady Schubert is a director of Bond Media and QTL. She said in her statement that the only contact with which she was aware between the Bond Media board and the board of Bond Holdings was a monthly report which the chairman of Bond Media sent to the other board. Since her appointment to the Bond Media board, she had no contact with any board member of Bond Holdings. She said she had no direct knowledge of any special favours which any company or person associated with the Bond Group received or had requested with respect to advertising on QTQ-9. She said she had only met Mr. Bond on three occasions, each of them a social occasion. She believed that the assets of QTL were best preserved and enhanced by an approach which focused on the best interests of that company, and not one which required her as a director to assume that what is in the best interests of Mr. Bond or any company associated with him is in the interests of QTL.
In the document issued on 26 June 1989, the Tribunal went on to set out a summary of the findings of fact which it considered relevant to the licensees' fitness and propriety:

"1. Mr. Bond agreed to pay the Premier of Queensland, Sir Joh Bjelke-Petersen, $400,000 to settle his defamation claim not believing that that sum was justified by that claim alone, but believing that if he did not settle at that figure the Premier might harm his interests in the State of Queensland.

2. Mr Bond sought to disguise the true amount agreed to be paid in the belief that a sum in excess of $50,000 could not survive public scrutiny.

3. Mr. Bond deliberately gave misleading evidence to the Australian Broadcasting Tribunal in 1986 in relation to the events of January and February, 1986, and in relation to the nature of the meeting with Sir Joh Bjelke-Petersen on 17 February, 1986.

4. Mr Bond deliberately gave false evidence to the Australian Broadcasting Tribunal in this Inquiry in relation to his motivation for making the offer to Sir Joh Bjelke-Petersen at the meeting of 17 February, 1986 and in relation to the telex of 2 January, 1986 which was relevant to a determination of the date by which agreement had been reached between Mr Bond and Sir Joh Bjelke-Petersen.

5. Mr. Bond threatened to use his TV staff to gather information on a business competitor (the AMP Society) and to expose the competitor by showing the results on television."

To a large extent this passage reiterates the findings in the 7 April 1989 document. In addition to the five "decisions" of which the applicants complain as then having been made (the seventh to eleventh "decisions"), they add a "decision" drawn from this later document of 26 June 1989, which they describe as a decision that Mr. Bond's agreement to pay the Premier $400,000 was improper. In the amended applications, this is the "fifth decision"; these decisions, like others which we have earlier identified in these reasons, are findings of primary fact upon which the Tribunal based the first decision, the unfitness of Mr. Bond, and thus the second decision, that of unfitness of the licensees in the statutory sense.

As we indicated earlier in these reasons, in the Applications for orders for review, the first decision is described as "the decision made on 26 June 1989 that (Mr. Bond) would not be found to be a fit and proper person to hold a broadcasting licence". The second decision is described as one made on the same date that each of the four licensees is no longer a fit and proper person to hold its respective licence or licences.
The Tribunal, after addressing itself to other matters which it will be necessary for us to consider later in these reasons, concluded with what we have described earlier in these reasons as the crucial paragraph.
The Undertakings
What the applicants describe as the third and fourth decisions are concerned with the attitude of the Tribunal evinced in the document issued on 26 June 1989 to the questions respectively of the imposition of conditions on the licences and the acceptance of undertakings proffered to the Tribunal by Mr. Bond, Dallhold, Bond Holdings and Bond Media.
On 1 May 1989, counsel formally proffered to the Tribunal certain undertakings from these parties on the footing that acceptance of the undertakings would bring the Inquiry to an end and remove the need to make any finding on fitness and propriety. The undertaking proffered for Mr. Bond was in the following terms:

"(a) Whereas by virtue of his control of

(Dallhold) and (Bond Holdings), Mr. Bond is the deemed majority shareholder in (Bond Media), he will take all necessary steps within his power to ensure that, as soon as is practicable and in any event no later than three months following the Tribunal's Final Decision in its current Inquiry and until the last day of the next licence renewal period for commercial television station QTQ9 Brisbane, a majority of the directors of (Bond Media), as well as its Chairman, are persons who are not otherwise associated with Alan Bond, (Dallhold) and (Bond Holdings);

(b) That he will continue not to use or seek to use the staff or any other resources of any of the Bond Media licensees in which he holds a prescribed interest for any commercial or other purpose of himself, (Dallhold) or (Bond Holdings), other than on usual commercial terms; and

(c) That he will continue not to interfere or seek to interfere with the selection and/or presentation of any news and current affairs programs of any of the Bond Media licensees or otherwise act so as to cause (Bond Media) to breach the Tribunal's Program Standards."

The undertaking proffered for Dallhold was pursuant to a Board resolution dated 26 April 1989, in the following terms:

"Whereas Dallhold has a prescribed interest in the commercial television and radio licences controlled by (Bond Media), it will take all necessary steps within its power to ensure that, as soon as is practicable and in any event no later than three months following the Tribunal's Final Decision in its current Inquiry and until the last day of the next licence renewal period for commercial television station QTQ9 Brisbane, a majority of the directors of (Bond Media), as well as its Chairman, are persons who are not otherwise associated with Alan Bond, Dallhold and (Bond Holdings)."

The undertaking proffered for Bond Holdings was in similar terms, mutatis mutandis, to that proffered for Dallhold. The undertaking proffered for Bond Media was more complex. It was in the following terms:

"(Bond Media) undertakes to the Tribunal:

(a) that it will report to the Tribunal the details of the settlement of all defamation actions brought against any of the licensees controlled by it, including provision of a copy of any legal opinion obtained in relation to such settlements,

(b) that it will establish a Compliance Division, reporting to the Managing Director, to deal with relations with the Tribunal and with compliance with statutory requirements under the Act, and

(c) that it will as soon as is practicable appoint to the Board of (Bond Media) a Chairman of stature in the community who is not otherwise associated with Mr. Bond, (Dallhold) or (Bond Holdings)."

The undertakings had been put forward without prejudice and without admissions and on the basis that their acceptance would bring the Inquiry to an end with no unfavourable findings, orders or conditions. It had also been submitted to the Tribunal that should it be persuaded that it did not have power to accept the undertakings (as counsel assisting contended) then the Tribunal would be able to impose conditions under s. 85 of the Act upon the relevant licences.
On 16 May 1989, the Tribunal issued what it described as its interlocutory decision concerning the legal issues involved in the proposal that the Tribunal consider accepting these undertakings. The gist of the Tribunal's decision was that it did not have the power to consider at that stage the proposed undertakings. The Tribunal also expressed the view that the imposition of conditions was a power related to a relevant finding under the Act, and that the power was not to be exercised in prospect; the result was that the Tribunal did not have that power at the present stage of the Inquiry.
After the issue of the decision of 16 May 1989, proceedings were instituted in this Court for judicial review, pursuant to the ADJR Act. The matter was given an expedited hearing and reasons for judgment were delivered by Pincus J. on 31 May 1989 (Bond Media Ltd. v Australian Broadcasting Tribunal (unrep.)) His Honour decided:

(i) that the Tribunal had power, at the present stage of the Inquiry, to impose conditions on licences the subject of the Inquiry, under s.85 of the Act and that the Tribunal might do so even without finding that it was satisfied that a particular licensee was no longer a fit and proper person to hold its licence,

(ii) the Tribunal had power to consider, at the present stage of the Inquiry, undertakings of the kind proffered to the Tribunal and might take the offering of those undertakings into account in the exercise of its powers under the Act.

In the document issued 26 June 1989, the Tribunal adverted to these matters. It stated that this Court had "expressed the view" that it was within the Tribunal's power to consider the undertakings and conditions at the present stage of the Inquiry. This rather understates the effect of the decision of 31 May 1989. Later in its reasons, the Tribunal averred that it had given very serious consideration to the proposed undertakings. As to the undertakings proffered for Bond Media, the Tribunal concluded that they did not "address the concerns we have about Mr. Bond's behaviour". Of the undertakings proffered by Mr. Bond, the Tribunal said:

"The first undertaking does not significantly effect (sic) the control Mr Bond has by virtue of his shareholding. The lack of association with Mr Bond and the two corporations he controls with the proposed restructured board does not avoid the fact that Mr Bond by virtue of his shareholding remains in control of the company. Apart from this we have little confidence in view of the evidence we have heard in this Inquiry in the notion that Mr Bond would not ultimately prevail in any significant area where his overall interests were involved."

The Tribunal said that the second and third undertakings offered by Mr. Bond were not relevant. The Tribunal went on to say:

"Apart from the reasons so far set out, we consider that the scheme proposed does not address the fundamental issues in the findings we made. To highlight this by one example, we have found that Mr Bond deliberately misled this Inquiry. There is nothing in these proposals which addresses the fundamental nature of such a finding in relation to the fitness and propriety of the individual involved. In rejecting this proposal, we do not express any view about the appropriateness or otherwise of the imposition of conditions or acceptance of undertakings at some subsequent stage in the Inquiry."

The Role of Judicial Review

As we have explained, the applicants complain of what they describe as eleven "decisions" within the meaning of the ADJR Act. Of these, the first two, the fitness and propriety of Mr. Bond and of the licensees respectively, are closely connected. But, as we have indicated, it is the "decision" concerning the fitness and propriety of the licensees which is expressed in the terms of s. 88 of the Act.
The Inquiry is not complete. On the first day of the hearing, we were urged by counsel for the Tribunal to dismiss the present proceedings as premature. In support of that application, counsel submitted that as yet there was no decision to suspend or revoke any licence; nor had the Tribunal expressed any considered view as to the imposition of conditions (under s. 85) or the acceptance of undertakings at some subsequent stage of the Inquiry. The issue thus presented by counsel requires the exercise of discretion by the Court. The gravity of the first and second decisions is considerable for those directly involved. Of the other applicants, two are listed public companies with numerous shareholders, no doubt large and small, and with very extensive capital. In circumstances such as these, if there is to be judicial review, then it had best be prompt. Accordingly, we declined to accede to the application by counsel for the Tribunal and embarked upon the substantive hearing.
Much of the debate before us involved a close regard to factual material before the Tribunal. As we have indicated, other "decisions" of which the applicants complain are in a sense findings of primary fact from which the Tribunal proceeded to its decision upon the ultimate fact presently in issue, the lack of fitness and propriety of the licensees within the meaning of s. 88 of the Act. The arguments addressed to us on behalf of the applicants by invocation of the concept of unreasonableness, as understood in administrative law in relation to the exercise of discretionary powers, sought to entice the Court into something approaching a review on the merits with a view to overthrowing findings of primary fact by the Tribunal. The position of the Court in a case such as this thus calls for some consideration.
The immediate question before the Tribunal was whether, as to each of the four licensees, the Tribunal was satisfied that it was a fit and proper person to hold its licence or licences (as the case may be). If the Tribunal was satisfied that a licensee was no longer a fit and proper person to hold its licence, the Tribunal would have to decide whether it was advisable in the public interest to suspend or revoke the licence, having regard to its satisfaction as to want of fitness and propriety. If it did appear to the Tribunal to be advisable in the public interest to act in this way, then the Tribunal might, by notice in writing to the licensee, suspend or revoke the licence. Plainly, at this latter stage, there would be involved an exercise of discretion attendant upon the power to suspend or revoke. In a given case, an exercise of that power might, in proceedings for judicial review, be classified as improper, within the sense of para. 5 (1) (e) of the ADJR Act, as read with the heads set out in sub-s. 5(2).
But that is not this case. The Tribunal has not progressed to the end of the path laid out in sub-s. 88 (2) of the Act. What it has done is to take the step of satisfying itself that each of the licensees is no longer a fit and proper person to hold its licence or licences (as the case may be). That step does not involve the exercise of a discretionary power. What the Tribunal has done is to determine what is required in order for it to take the initial step under sub-s. 88 (2) of the Act (particularly as indicated by the phrase "is satisfied that the licensee . . . is no longer a fit and proper person to hold the licence . . .") and to apply the Act, as so construed, to the primary facts. That is a function of the type often performed by courts in the exercise of judicial power, though, as the present example illustrates, it is a function which (with qualifications not here relevant) the Parliament may entrust to administrative bodies.
If the Tribunal has misconstrued the Act, there will have been an error of law, which attracts judicial review under the ADJR Act. That proposition was not disputed before us. But what of the findings of fact by the Tribunal?
If the Tribunal decided it was satisfied that the licensees were no longer fit and proper persons to hold their licences, but reached that decision without being satisfied of the existence of primary facts which did amount in point of law to what was meant by the statutory phrase "is no longer a fit and proper person to hold the licence", then it fell into an error of law. That this would be so follows from what was said by Dixon C.J., Williams, Webb and Fullagar JJ in The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. (1953) 88 CLR 100 at 117, a decision which, of course, pre-dates the ADJR Act. Further, if the Tribunal made a finding of primary fact unsupported by any material or drew an inference unsupported by any of the primary facts found by it, it will be held to have erred in law (see Lombardo v Federal Commissioner of Taxation (1979) 40 FLR 208 at 209-210, per Bowen C.J. and the authorities collected in de Smith's "Judicial Review of Administrative Action", 4th Ed., p 133). The necessity for adequate evidence has been said to be a component of natural justice; see the review of the authorities by Wilcox J. in Television Capricornia Pty. Ltd. v Australian Broadcasting Tribunal (1986) 13 FCR 511 at 514. Further, Sir William Wade has pointed out ("Administrative Law", 6th Ed., p 320) that this "no evidence" concept also has something in common with the principle that perverse action is unauthorised and ultra vires. In this context, a decision will be "perverse" if it could not have been properly arrived at on the material before the decision maker: Ashbridge Investments Ltd. v Minister for Housing and Local Government (1965) 1 WLR 1320 at 1328-1329.
The decisions dealing with complaints of "no evidence" have taken the matter somewhat further. In Secretary of State for Education and Science v Tameside Metropolitan Borough Council (1977) AC 1014 at 1030, Scarman L.J. spoke of the scope of judicial review as including "misunderstanding or ignorance of an established and relevant fact". When that case reached the House of Lords, Lord Wilberforce said, (1977) AC at 1047:

"If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for (the decision maker) alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge . . ."

See also Sutherland Shire Council v Finch (1970) 123 CLR 657 at 665-667; NZI Financial Corporation Ltd. v New Zealand Kiwifruit Authority (1986) 1 NZLR 159 at 174-175; Galligan, "Discretionary Powers", pp 314-320. Thus, a reviewable error may be present where a decision maker wrongly excluded material or, in making findings of primary facts did not take into account material which was before the decision maker and which had a proper bearing upon the existence or non-existence of those primary facts. See de Smith supra pp 136-137 and cf. The Minister of State for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (Full Court, 28 June 1989, unrep.).

How is this trend of authority to be accommodated within the scope of the ADJR Act? Section 5 is concerned with review of decisions of an administrative character, to put it shortly, made under an enactment, whether or not in the exercise of a discretion. One ground of review is that there was "no evidence or other material to justify the making of the decision" (para. 5 (1) (h)). This has to be read with the terms of sub-s. 5 (3):

"5. (3) The grounds specified in paragraph

(1) (h) shall not be taken to be made out unless -

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he was entitled to take notice) from which he could reasonably be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

This ground of review thus is limited to two situations, non-existence of an essential fact and reliance on a non-existent fact. It has a fairly precise if narrow scope; it merits Professor Pearce's description as not being based on the notion of "no evidence" (Pearce, "Commonwealth Administrative Law", para. 344). But it should not be assumed that in a significant piece of remedial legislation, such as the ADJR Act, the heads of review do not overlap or that they are mutually exclusive categories.
Breach of the rules of natural justice in connection with the making of the decision in question is the first of the grounds set out in sub-s. 5 (1). Section 5 also provides for error of law as a ground of review; it is sufficient that the decision "involved an error of law, whether or not the error appears on the record of the decision" (para. 5 (1) (f)). Paragraph 5 (1) (d) provides a ground of review "that the decision was not authorised by the enactment in pursuance of which it was purported to be made". Provision also is made for review of a decision "otherwise contrary to law" (para. 5 (1) (j)); this residual category could provide for cases in which review was available at common law (and pursuant to s. 75 (v) of the Constitution and s. 39B of the Judiciary Act 1903) on grounds not fully appreciated when the ADJR Act was introduced, and would avoid a rigidified operation of that statute. One or more of these grounds could, in a particular case, be sufficient to encompass the trend of common law authority to which we have referred.
On the other hand, it is necessary to keep the operation of judicial review within its proper limits, which mark it out as quite different in character from any review on the merits of findings of fact. As we have indicated, despite counsel's averments to the contrary, there was an element in the submissions by the applicants that we should treat certain findings of primary fact by the Tribunal as unsafe, because there was a body of evidence before the Tribunal which suggested a contrary conclusion. That, it was urged, made the findings "unreasonable" in the Wednesbury sense.
In Associated Provincial Picture Houses Ltd. v Wednesbury Corporation (1948) 1 KB 223, Lord Greene M.R. was dealing not with disputed findings of fact, but with the exercise of a statutory power to impose conditions on a licence. It is not readily apparent how the Wednesbury principle applies to the findings of primary fact where there was evidence or other material to justify the making of those findings and the decision maker was not acting perversely: Puhlhofer v Hillingdon London Borough Council (1986) 1 AC 484 at 518; Broadbridge v Stammers (1987) 76 ALR 339 at 343; Apthorpe v Repatriation Commission (1987) 77 ALR 42 at 53-54. The decision in Australian Broadcasting Tribunal v Bond Corporation Holdings Ltd. (1989) 84 ALR 669; 86 ALR 424, stands in a different light. What was there involved was a mandatory order in respect of a manifestly unreasonable exercise of a discretionary power given by statute, where the primary facts were not in dispute.
The Proper Construction of sub-para. 88 (2) (b) (i) of the Broadcasting Act

Counsel for the Tribunal submitted to us that the conduct of natural persons associated as "controllers" or managers with companies holding licences goes to the question of the continued fitness and propriety of those companies to hold licences. The term "controller" does not appear in s. 88 of the Act. We do not find helpful or appropriate in dealing with the construction of that section references made (it should be said, by counsel on both sides of the bar table) to passages in well known decisions in other areas such as death and estate duty and income tax legislation where this term and cognate terms were used.
It was further submitted by counsel for the Tribunal that Mr. Bond was a "controller" of each of the licensees because the chain of his shareholding (albeit passing through listed public companies) gave him the ultimate power of dismissal of the boards of the licensees. This was described as de jure control. It was also said that the findings of fact by the Tribunal amounted to a finding of de facto control of each licensee. The submission then was that, this being so, the Tribunal was correct in not considering the conduct of anyone associated with the licensees, other than Mr. Bond. His lack of fitness and propriety was sufficient. Thus, the first "decision" was used to reach the second and ultimate decision concerning the licensees themselves.
Even if the propriety of the first "decision" be conceded for present purposes, in our view the Tribunal fell into a serious error of law in construing and applying sub-s. 88 (2) of the Act.
In construing the expression "is no longer a fit and proper person to hold the licence" as it appears in the setting of sub-s. 88 (2) of the Act, we believe the following is material:

(a) Before the Tribunal may suspend or revoke a commercial licence, it must appear to the Tribunal that it is advisable to do so "in the public interest"; this presents the question of identifying what in this particular context are the integers which go to constitute the public interest; as Lord Simon of Glaisdale explained in D v National Society for the Prevention of Cruelty to Children (1978) AC 171 at 231-234, at any particular time the common law may recognise various public interests, not all of them complementary and some of them even antithetic.

(b) In considering whether it appears to be advisable in the public interest to suspend or revoke a commercial licence under sub-s. 88 (2) of the Act, the Tribunal is directed to have regard only to the matters or circumstances that: "(a) the Tribunal is satisfied that the licensee has failed to comply with the undertaking given under subsection 83 (1) (at the time of the grant of the licence) . . . in relation to the licence;

(b) the Tribunal is satisfied that the licensee:

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

(ii) no longer has the financial, technical and management capabilities necessary to provide an adequate and compre- hensive service pursuant to the licence; or

(c) the Tribunal is satisfied that a condition of the licence has not been complied with."

(c) The grant of a licence may be refused if the Tribunal, to put it shortly, is not satisfied that the applicant is a fit and proper person to hold the licence (sub-s. 83A (4)).

(d) Renewal of a commercial licence may be refused if the Tribunal, again to put it shortly, is satisfied that the licensee is no longer a fit and proper person to hold the licence (sub-s. 86AA (4)); this proceeds on the footing that the licensee satisfied a criterion of fitness when the licence was granted and at any earlier renewal; in our view, sub-s. 88 (2) is to be read in the same way, as looking to supervening circumstances which change the status quo affecting the licensee.

(e) Despite the use of the term "person" in these provisions, a commercial licence shall not be granted except to a company formed within the limits of the Commonwealth or a Territory and having a share capital (sub-s. 81AA (1)).

(f) These provisions are concerned with licensees as such, and do not, on their face, direct attention to the persons or corporations associated with the licensee, in contradistinction to the provisions elsewhere in the Act dealing with limitation on ownership and control of commercial television licences.

(g) Western Television Ltd. v Australian Broadcasting Tribunal (1986) 12 FCR 414 was decided when the Act was in an earlier form, but the differences are not presently material. The case relevantly (and in our view correctly) decides that (i) in determining whether a company which applies for a licence is "fit and proper", the Act contemplates examination, inter alia, of the persons associated with the applicant, and

(ii) the Tribunal in that case erred in law in not treating as a relevant consideration the fact that a person with a significant association with the applicant had been convicted of numerous recent offences.

(h) New Broadcasting Ltd. v Australian Broadcasting Tribunal (1987) 73 ALR 420, a companion piece to the above decision, relevantly (and in our view correctly) decides that, on a renewal application, (i) the question of fitness is not at large, but is directed to the purposes of the regulatory regime, the holding of the licence under the Act, and not every aspect of a person's fitness or propriety is relevant in some general sense, (ii) there are many breaches of the law which do not jeopardise fitness to hold a licence or capacity to meet the conditions and obligations of a licensee under the Act,

(iii) in deciding whether the licensee is no longer a fit and proper person to hold the licence, it is relevant to have regard to compliance by the licensee with its obligations under the Act, (iv) where the conduct of one member of the board of directors of the licensee (in this case the chairman) has been called into question, it is relevant to consider whether the other directors are familiar with the obligations of licensees under the Act, such that the company itself has not become an unfit and improper person to hold the licence, and (v) the circumstance that a company has as its chairman a person convicted for failure to lodge income tax returns, does not, per se, render the company no longer a fit and proper person to hold a licence.

(i) In the Western Television Case (supra) at 421, Pincus J., when dealing with an application for grant, said: "Fitness and propriety are concepts which, as applied to people, may have widely varying scope. Here, as financial, technical and management capabilities are separately mentioned, it appears probable that the legislature had in mind, at least principally, qualities of a potential licensee other than those capabilities. That is, a person perfectly capable of providing a proper service may yet not be a fit and proper person to hold a licence for reasons of, for example, public morality; it would be inconsistent with the intention of the statute to grant such a valuable right to a person appearing to the Tribunal to be unfit in a broad sense, however confident the Tribunal might be that the person in question would perform the licensee's statutory obligations properly."

(j) We would add that, non constat what is there said as to grant, past and current performance by an existing licensee may go to the question of whether the licensee is no longer a fit and proper person to hold the licence.

(k) Although there may be some difference in emphasis, we do not read what was said by Pincus J. as to the position upon application for a licence as inconsistent with what was said by Davies J. in the News Broadcasting Case (supra) at 428, that upon renewal the requirement that the licensee be "a fit and proper person to hold the licence" does not look to every aspect of fitness and propriety attaching to a licensee. But we should add, with reference to what was said in the earlier case, that "public morality" may be a difficult term, and it would require a strong case to deprive a licensee or an applicant for a licence of fitness and propriety on that ground alone.

We should comment at this stage that in the present proceedings there was no submission to the Tribunal (or to the Court) that any of the licensees had failed to comply with any of the myriad obligations imposed by the Act upon them, and that of the two decisions referred to above, in the Tribunal's reasons dated 26 June 1989 the News Broadcasting Case was not mentioned and the Western Television Case was discussed, but in a manner which indicates some overstatement of the propositions for which it stands.
The Tribunal relied upon the Western Television Case as authority for the proposition that "an assessment of Mr. Bond's personal fitness and propriety is relevant in determining the issue as it affects each of the licensee companies". We agree with this proposition, subject to the qualification that it would be necessary first to find the facts indicative of a sufficiently close connection between Mr. Bond and the licensees. Having dealt with various factual matters (to which we later return in these reasons) the Tribunal spoke of Mr. Bond as being "by virtue of his association with the licensee companies, the only relevant individual in the sense that consideration of his fitness and propriety is relevant to the question of fitness and propriety of the licensees". The proposition which we have underlined cannot be cavilled at, but this is not the same as saying that Mr. Bond was the only relevant individual. The language used, coupled with the fact that the Tribunal did not consider, in arriving at its conclusion, the qualities of persons other than Mr. Bond, indicate that the Tribunal has fallen into error, partly pursuant to the encouragement given by the submissions of counsel assisting and also in mistaken reliance upon what had been said in the Western Television Case.
That case is authority for the proposition that a relevant matter to be taken into account in determining the fitness and propriety of a corporation may be fitness and propriety of persons associated with the applicant, and that it would be an error in not treating as a relevant consideration the fact that a person with a significant association with the corporation in question had been convicted of numerous recent offences. However, upon that hypothesis, it would still be for the Tribunal to take into account other relevant matters. In other words, in the Western Television Case, the Court was not saying that if the Tribunal had done what it had failed to do, namely to take into account the recent convictions of a person with a significant association with the applicant, it would reach the conclusion that the corporation lacked fitness and propriety. The finding as to one individual would not necessarily translate into a finding as to the company concerned.
The Tribunal's Decision that the Licensee Companies are no Longer Fit and Proper Persons within the Terms of Sub-paragraph 88 (2) (b) (i) of the Act
The Tribunal went astray by equating the fitness and propriety of Mr. Bond (or lack of it) with that of the licensees; having found certain facts from which it concluded Mr. Bond was lacking in this respect, the Tribunal then failed to look at other material before it which required consideration if its decision as to the supervening lack of fitness and propriety of the licensees was not to be regarded as perverse in the sense of the authorities we mentioned earlier in these reasons.
As we have indicated, there was a body of material before the Tribunal which suggested that the boards of the licensee companies operated in an entirely proper manner and discharged their duties in accordance with the obligations placed upon them by company law. We have referred to evidence given by various directors and executives of the absence of what might be described as interference by Mr. Bond; this evidence was not challenged. But it was disregarded by the Tribunal, the reason for this apparently lying in the misconception under which the Tribunal laboured as to the narrow range of the relevant considerations to be taken into account by it.
Further, the Tribunal decided that the undertakings that had been proffered did not address the fundamental issues in the findings it made, inter alia, as to the fitness and propriety of Mr. Bond. But, granting the conditional way in which they were offered, the undertakings went to the continuing fitness and propriety of the licensee companies, in the sense that even if Mr. Bond was in a position to exercise some real and malign influence, he would have distanced himself, and been distanced by the interposition of Dallhold, Bond Holdings and Bond Media, if the undertakings were to come into effect. The Tribunal also failed to consider the past and continuing compliance of licensees with their obligations under the Act.
In our view, the matters to which we have referred above are sufficient without more to show that the Tribunal fell into an error of law in construing what was involved if, within the meaning of sub-s. 88 (2) of the Act, it was to be satisfied that each of the licensees was no longer a fit and proper person to hold its licence or licences. What the applicants have described as the second decision must be set aside.
The Tribunal's Findings and Conduct as to the Fitness and Propriety of Mr. Bond Himself
Whether a licensee is a fit and proper person to hold a licence for the purposes of the relevant sections of the Act requires examination of the persons associated with the applicant, in particular those who control it. Whether Mr. Bond is a relevant person is a question which we have examined earlier in this judgment; and on the footing that he is, we turn to consider whether the Tribunal erred in law in its finding that Mr. Bond would not be found to be a fit and proper person to hold a broadcasting licence.
That finding on its face postulates an impossibility, namely that in some other circumstances Mr. Bond could be found to be a fit and proper person to hold a broadcasting licence under the Act. Therefore, in a sense, this finding was not one the Act authorised the Tribunal to make. Paragraph 5 (1) (d) of the ADJR Act provides for review of a decision not authorised by the enactment in pursuance of which it was purported to be made. But this finding also is flawed in other respects. To these we now turn.
As mentioned elsewhere in these reasons, Mr. Bond's conduct cannot be considered in the abstract; it is his conduct with reference to the continuing fitness and propriety of the licensee companies to hold and operate broadcasting licences that is the relevant touchstone.
The findings of the Tribunal which it considered relevant to Mr. Bond's conduct have been set out earlier (in the section of these reasons headed "The 'Fit and Proper Issue' Document Issued 26 June 1989"), and we shall deal with each of them in turn.

"1. Mr Bond agreed to pay the Premier of Queensland, Sir Joh Bjelke-Petersen, $400,000 to settle his defamation claim not believing that that sum was justified by that claim alone, but believing that if he did not settle at that figure the Premier might harm his interests in the State of Queensland."

There is a fundamental difficulty in this conclusion of the Tribunal. The Tribunal sought to determine the nature of the transaction involved in the settlement of the defamation claim of the Premier without inquiring into the purpose or motives of the Premier in reaching the settlement. The Tribunal held that the Premier was not "amenable" to its jurisdiction and therefore precluded itself from making findings as to what the Premier did or said. There is an error of law involved in this dichotomy which in our opinion necessarily vitiates the seventh "decision" of the Tribunal. It was impossible both in logic and common sense for the Tribunal to determine the nature of the transaction involved in the settlement of the defamation claim without making findings as to what was said and done by each person involved in the settlement negotiations on both sides of the record. By taking the course which it did, the Tribunal necessarily prevented itself from making any finding to the effect that the sum of $400,000 was extorted or solicited by the Premier.
The Tribunal found that the improper conduct of Mr. Bond lay in his not believing that the $400,000 payment was justified by the defamation claim alone and that if he did not settle at that figure the Premier might harm his interests in Queensland. Once the role of the Premier is removed from the consideration of the defamation settlement, there is left an analysis unilaterally of the motivation of Mr. Bond for the settlement, which was an impermissible course for the Tribunal to have taken.
We have noted that the Tribunal did not, in its reasons, expressly state that it proposed to approach the problem in the way just mentioned. One may safely deduce that it did so from, first, the content of the discussions about the point recorded in the transcript, secondly, the odd lack of specificity in the findings on the nature of the contacts between Mr. Bond and the Premier concerning the payment, thirdly, the absence of any finding on the important question whether in fact, as some of the evidence suggested, the payment constituted a reasonable sum to buy off the suit, and, finally, the complete absence of any reference to the very suggestion which revived the Tribunal's interest in the matter, namely that the Premier was alleged to have himself linked the settlement to the prospect of Mr. Bond doing business successfully in Queensland.
It appears from the transcript that the Tribunal took the course it did partly because the Premier was not a party to the Inquiry, nor represented before it. One may sympathise with the Tribunal's lack of desire to make findings adverse to the character of a person so placed, but the result was that the Inquiry into the matter was fettered by preordained constraints as to the nature of the ultimate conclusion. If the payment was improper, then the scope and the nature of the impropriety could not be determined properly without considering the Premier's part in it, which was plainly correlated with Mr. Bond's part in it. If, for example, the Tribunal gained the impression from the evidence that there was any degree of extortion or coercion involved, then that might well have gone to lessen the culpability attributed to Mr. Bond. His counsel strongly resisted the placing of this limitation on the scope of the Inquiry and Mr. Bond was, in our view, entitled as a matter of natural justice to have both sides of the transaction looked at, if it was to be looked at at all.

We would add that another unfortunate consequence of the way in which the Tribunal approached the matter was that it made no finding on the important question whether the payment of $400,000 was justified by the defamation claim alone. Had the Tribunal decided that point favourably to Mr. Bond, it would have been more difficult to conclude that the payment was improper.
In these circumstances it seems to us that the Tribunal's conclusion that the payment of the $400,000 was an improper payment which in some way rendered Mr. Bond unfit to be associated with the licensee companies cannot stand.
We emphasise that we do not find as a fact that the payment of $400,000 was proper or that it was improper. We confine ourselves to holding that the Tribunal's finding that the payment was improper was vitiated by error.
The second relevant finding of the Tribunal was:

"2. Mr. Bond sought to disguise the true amount agreed to be paid in the belief that a sum in excess of $50,000 could not survive public scrutiny."

This finding is necessarily dependent upon the first finding with which we have just dealt. The impropriety of any attempt to disguise the true amount agreed to be paid by Mr. Bond must depend on the impropriety of the transaction which underlies it. In other words any impropriety in relation to the disguising of the true amount agreed to be paid can only be improper if in fact the agreement to make the payment of $400,000 was itself improper.
The third matter relied on by the Tribunal to found its finding of Mr. Bond's unfitness and absence of propriety is:

"3. Mr. Bond deliberately gave misleading evidence to the Australian Broadcasting Tribunal in 1986 in relation to the events of January and February, 1986, and in relation to the nature of the meeting with Sir Joh Bjelke-Petersen on 17 February, 1986."

It is difficult to discern from the reasons of the Tribunal the basis for having reached this conclusion.
The Tribunal's finding that Mr. Bond deliberately gave misleading evidence about the events of January and February 1986 again brings us back to the primary point that the Tribunal approached its analysis of those events in an impermissible way saying that it was not entitled to examine those events from the viewpoint of the Premier. Once the examination of the matrix of facts is confined in this narrow and impermissible way, all the conclusions of the Tribunal that are made from it must be suspect and tainted by the same fundamental misconception.
Counsel for Mr. Bond strongly challenged the findings of the Tribunal under this head based on the evidence before the Tribunal in the course of its inquiry into these matters. We need say nothing further about them in view of the conclusion which we have just expressed.

"4. Mr Bond deliberately gave false evidence to the Australian Broadcasting Tribunal in this Inquiry in relation to his motivation for making the offer to Sir Joh Bjelke-Petersen at the meeting of 17 February, 1986 and in relation to the telex of 2 January, 1986 which was relevant to a determination of the date by which agreement had been reached between Mr. Bond and Sir Joh Bjelke-Petersen."

We make the same comments as we did with respect to finding 3.

"5. Mr Bond threatened to use his TV staff to gather information on a business competitor (the AMP Society) and to expose the competitor by showing the results on television."

There was some criticism of this finding at the hearing, based in part on the circumstance that the oral evidence on which the finding was based was, in an important respect, inconsistent with a contemporary memorandum prepared by the relevant executive of the Australian Mutual Provident Society. But this Court has no power to hear an appeal against the finding and the Tribunal's conclusion seems to have been based largely upon its impression of the witnesses. We do not hold that finding 5 is vitiated by any error reviewable in these proceedings. It is a finding in a different category from the others made against Mr. Bond, because it is not connected with the defamation settlement.
The result, as to Mr. Bond personally, is that we are of the view that those of the Tribunal's findings which were directly or indirectly related to the defamation settlement were arrived at by an invalid process of inquiry, but the attack on finding 5 (designated by the applicants as the eleventh "decision") fails.
Conclusions
For the reasons which we have discussed above, the decision that the licensee companies are no longer fit and proper persons to hold their licences must be set aside under para. 16 (1) (a) of the ADJR Act, and that will be ordered.
A more difficult question concerns the first decision complained of, that Mr. Bond "would not be found to be a fit and proper person to hold a broadcasting licence". As we have said, that decision postulates an impossibility. Further, we have held that all but one of the findings underlying this conclusion are vitiated by the Tribunal's incorrect approach to the question of the defamation settlement. In Mahon v Air New Zealand (1984) 1 AC 808 at 840, the Privy Council declined to decide whether, under the relevant law of New Zealand, findings of a statutory inquiry could be set aside and their Lordships thought it sufficient that the substantive order resulting from those findings had been set aside. The position here is somewhat different.
The finding against Mr. Bond, that he "would not be found to be a fit and proper person to hold a broadcasting licence" is apt to mislead those unfamiliar with the relevant legislation; it may be thought to be a finding having a defined legal consequence, namely that Mr. Bond is disqualified from holding a licence.
Of course, he could not hold one, because only companies may do so. To prevent any misunderstanding, we think it desirable, if there is power, to set aside the conclusion regarding Mr. Bond just quoted, since all but one of the primary findings underlying it are vitiated. The question is whether the Court may make the result at which it has arrived clear, by setting aside that conclusion.
In Lamb v Moss (1983) 76 FLR 296, this Court accepted that certain sorts of interim opinions are reviewable under s. 5 of the ADJR Act as "decisions", but did not find it necessary to determine the limits of that doctrine. Reasons given by an administrative tribunal might include quite a number of expressions of view about facts, and it seems unlikely that Parliament intended that every such expression should be susceptible to treatment as a separate decision, for the purposes of s. 5 of the ADJR Act. If every factual finding on which an ultimate decision is based is to be classified as a separate decision and attacked on, for example the "no evidence" ground, the scope of judicial review under the ADJR Act would become wider than, hitherto, it generally has been thought to be.
Lamb v Moss stands, so far as relevant to the present case, for the proposition that a finding by a stipendiary magistrate that a prima facie case has been made out in respect of a charge of an indictable offence is a "decision" under s. 5. There is a difference between such a finding and the quoted conclusion with respect to Mr. Bond, in that the law positively requires the magistrate to reach a conclusion as to whether or not there is a prima facie case, before the defendant may be committed for trial; there is no similar requirement supporting the quoted conclusion as to Mr. Bond. But the Tribunal treated the issue as to whether Mr. Bond "would be" a fit and proper licensee as being one the resolution of which directly produced its ultimate conclusion, as to the fitness and propriety of the licensees. Where the interim finding has such a status, it appears to us that Lamb v Moss requires us to treat it as a "decision" within the meaning of s. 5 of the ADJR Act, whatever may be the position as to "findings" or expressions of view on lesser points. We therefore have come to the view that we have power to, and should, set aside the Tribunal's decision concerning Mr. Bond namely that he "would not be found to be a fit and proper person to hold a broadcasting licence".
However, we would not go on to set aside any of the other "decisions" complained of even if they were decisions separately reviewable under the ADJR Act. Our conclusions as to the unsatisfactory nature of certain findings upon primary facts are sufficiently apparent in what we have said earlier in these reasons and in the setting aside of the ultimate and penultimate decisions based upon those primary facts.
Counsel for the applicants strongly submitted that the Court should grant the fullest measure of relief and bring the Inquiry to an end, by exercise of its powers under para. 16 (1) (d) of the ADJR Act. By way of analogy from the general law, prohibition against the exercise of a power may issue if on the facts no basis could exist for exercising the power: The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. (1953) 88 CLR 100 at 118. It was submitted that on the material before it, the Tribunal could not properly be satisfied that each licensee was no longer a fit and proper person to hold a commercial licence.
We have decided not to take the further step of bringing the Inquiry to an end. It is possible that, by resuming the Inquiry and hearing further evidence and submissions, the Tribunal could correct the errors of law to which we have referred. Further, the Tribunal might come to the view that whilst it should not intervene by suspension or revocation of licences pursuant to s. 88, it would be proper to impose conditions under s. 85 or accept undertakings. We express no view upon this, beyond saying that this is a conclusion to which the Tribunal might come.
Whilst the matter is one for decision by the Tribunal, we must say that there is room for doubt whether it would be in the public interest for the Tribunal to make yet a further attempt to inquire into the defamation settlement and the questions associated with it. The Tribunal's investigations into the propriety of the settlement began in 1986. It is a question of a kind which normally would be a matter for the criminal law rather than such a Tribunal as this. After the expenditure of a great deal of time and money (including public money), there has been the unsatisfactory outcome referred to in these reasons. Undertakings designed to deal with the difficulties perceived by the Tribunal have been proffered and renewed in this Court. Some consideration should be given to the possibility that the time has arrived at which the Inquiry should finally be wound up, to enable the resources which otherwise would be absorbed by it to be devoted to more useful ends. The Tribunal retains, of course, the power to conduct further inquiries into the fitness of the licensees, if facts emerge making it necessary to do so.
Summary
We have held that the Tribunal made reviewable errors in the conduct of the Inquiry.
In determining whether the licensees were no longer "fit and proper persons" to hold their licences under the Broadcasting Act, the Tribunal considered only Mr. Bond. The licensees led evidence, in the main unchallenged, as to the background and function of other relevant persons, in particular directors and executives of relevant companies. The licensees also led some evidence as to the mode of management of the broadcasting stations in question. This body of evidence was not taken into account by the Tribunal in reaching its conclusion, although the legal relevance of such evidence was manifest.
In inquiring into the central allegation against Mr. Bond, namely one of an improper dealing with the then Premier of Queensland, the Tribunal proceeded on the basis that it would make no finding with respect to the actions of the Premier. In the opinion of this Court, it was impossible to conduct a rational and fair inquiry into the transaction in question, in which two people participated, without considering and making findings as to the conduct of both.
The Court has declined to accede to an application for an order that the Inquiry be terminated, but sets aside the decisions of the Tribunal as to the lack of fitness and propriety of the licensees and of Mr. Bond.
In each of the matters G349 of 1989 and G513 of 1989, there should be an order setting aside the decision of the Tribunal made 26 June 1989 that QTL, CBS, Northwest and DBL are no longer fit and proper persons within the terms of sub-para. 88 (2) (b) (i) of the Broadcasting Act, and the decision of the Tribunal made on the same date that Mr. Bond would not be found to be a fit and proper person to hold a broadcasting licence.
The Tribunal must pay the costs of the applicants in each matter, including any reserved costs of motions heard on 1 August 1989.

[1989] FCA 533

12 SEPTEMBER 1989