Casey, R.A. v Australian Broadcasting Tribunal

[1988] FCA 522

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY )	NO. G1240 Of 1988

1

GENERAL DIVISION )

BETWEEN: RONALD ARTHUR CASEY

Applicant

AND: AUSTRALIAN BROADCASTING

TRIBUNAL

First Respondent

AND: CARMEL NILAND

Second Respondent

CORAM :	BEAUMONT J.
PLACE:	SYDNEY

DATE : 19 SEPTEMBER 1988

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.    Upon the applicant giving the usual undertaking as to damages, order, until further order, that the flrst

respondent not proceed with the inquiry the subject

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

of the Notice of Inquiry grven on 22 Aprll 1988.

2.    Make no order as to the costs of this application for interim relief.

3 .    Order that the final hearing of these proceedings be expedited.

4 .     Stand the matter over to Thursday 22 September at 9.30 a.m. for directions.

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY	NO. G1240 Of 1988

)

GENERAL DIVISION 1

BETWEEN: RONALD ARTHUR CASEY

Appllcant

AND: AUSTRALIAN BROADCASTING

TRIBUNAL

First Respondent

AND: CARMEL NILAND

Second Respondent

c o w : BEAUMONT J.

PLACE :	SYDNEY
DATE :	19 SEPTEMBER 1988

REASONS FOR JUDGMENT

The applicant, Mr. R.A. Casey, 1s a radio broadcaster

who ha5 been engaged by 2KY Marketing Pty. Llmited ("2RY"), a Sydney radio station, to conduct a "talk back" radlo program.

In these proceedings, the applicant has sought judlcial revlew

of a number of declslons made by, and conduct of, the flrst

respondent, the Australlan Broadcastlng Tribunal ("the

Tribunal"). He now seeks lnterim relief, pending the flnal

hearing of these proceedings. He seeks to restraln the
Tribunal, in the rneantlme, from embarklng upon an lnqulry
which 16 presently scheduled to commence later thls week, on
21 September.

The background to the present application 1s as

follows. By letter dated 31 March 1988, the Trlbunal wrote to

2 K Y encloslng:

"copies of ... decislons by the Trlbunal relatlng to

broadcasts by [the applicant] on statlon 2 K Y , which have been Investigated by the Tribunal following the recelpt of comp1alnts:-

Date of Broadcast Decrsion

...	1. ...
2. 23 April 1987 Breach of RPS 3
3 . 24 April 1987 Breach of RPS 3
4. ... 5. 19 October 1987 i;;ach of RPS 3(a)
6. ... ...
7. 18 February 1988 [10.50 a.m.1 Breach of RPS 3.. . I '

(RPS 3 is a reference to Radio Program standard 3 determined by

the Trlbunal pursuant to s.l6(l)(d) of the Broadcasting Act	1942
("the Act")	as follows:

" 3 . A lrcensee may not transmlt a program which:

( a )	1s likely to inclte or perpetuate hatred agalnst; or
(b)	gratultously vilifles:

any person or group on the	basis of ethnlclty,
nationality,	race, gender, sexual preference,

religion or physical or mental dlsabillty."]

The letter dated 31 March continued:

"In vlew of your request dated 8 March 1988 for the Tribunal to expedite Its consideration of these matters, a decision was taken in the case of the broadcast at 10.50 a.m. on 18 February 1988 In the absence of the station's specific comments on the

broadcast (whlch were requested in the Tribunal's

telex of 3 March 19881.
The Trlbunal has also recelved complalnts concerning
broadcasts by Mr Casey on 24 and 25 Fe-bruary 1988.

These matters are stlll under znvestlqatlon by the

Tribunal and no decisions have been reached.

The Trlbunal has declded to hold a further conference with 2KY management and Mr Casey In order to discuss matters arlslnq out of the breaches referred to

above. . . "

Several "declslons", each dated 25 March, and reasons

for these "decisions" were enclosed with the letter. The

constitution of the Tribunal in maklng the "decisions" varied. In respect of the broadcasts on 23 and 24 April 1987, the Tribunal was constituted by Deidre O'Connor (Chairman), Bill Armstrong (Vice-chairman) and Julie James-Bailey (Member); In respect of the broadcasts on 19 October 1987 and 18 February 1988

l10.50 a.m.1, the Tribunal was constltuted by Deidre O'Connor

(Chairman), Julie James-Bailey and Kim Wllson (Members).

Shortly before this, on 23 March 1988, Carmel Nlland, the second respondent, and four other persons, had written to the Tribunal contending that certain remarks made by the applicant on radio 2 R Y were In breach of RPS 3 . They urged the Tribunal to

exercise several of the substantive powers vested in it by the

Act. Directions to 2KY were sought under s.99(2) of the Act for
the purpose of ensuring that the program standards were	complied

wrth. (By s.99(2) it is provlded that the Trlbunal may glve

directions to a licensee for the purpose of	ensurlng that the
program standards are complled wlth.)

A direction was also sought by the second respondent and
the other persons under s.119(1) of the Act so as to restrict the

applicant from presenting programs "until such time as the

Tribunal is satlsfled that he 1s wllllng and able to comply wlth

RPS 3 . " (By s.119(1) It 1s provlded that where a person has

presented in a live broadcast the whole or part of a program in respect of whlch the program standards were not complled with, the Trlbunal may prohlblt the person from presentlng programs ln

live broadcasts or impose restrlctlons on the presentlng by the

person of programs in llve broadcasts. It 1s further provided, by s.119(2), that the Trlbunal shall not glve a direction to a person under s.119(1) unless lt has, by notlce in writing served on the person, called upon the person to show cause why the dlrection should not be glven.) Other dlrections were also

sought by the second respondent and the other persons.

By letter to the appllcant's sollcitors dated 2 2 April

1988, the Tribunal purported to glve notlce of an inquiry "into exercise of Trlbunal powers under any or all of sections 85, 99,

101 and 119 of [the Act] as a result of the	breaches of the
standards and	the Act arising from broadcasts by [the

applicant] ... on 2KY." The notlce stated that the inquiry and "also follows Tribunal declslons that the Ron	"follows" the appllcation of the second respondent and others;
Casey ...p rograms broadcast on 2KY on 19	...	October 1987 and ... on

18 February 1988 were In breach of Radlo Program Standard 3 , and therefore that 2KY was 1n contraventlon of sectlon 99(1A) of the Act." (By 5.99 (1A) it 1s provlded that a licensee shall

supervise the broadcastlng of the licensee's programs in such

manner as to ensure that the proper standards are complied wlth.)

So far as presently relevant, the nptrce of Inquiry

continued:

"The issues to be considered ln the Inquiry are:

1. Whether the Tribunal should exerclse ~ t s
power under section 85 [s.85(1) empowers
the Trlbunal to vary or revoke the
condltlons of a llcence or to impose further
conditions] ... in order to prevent further breaches of section 9 9 ( 1 A ) ;

2 .     Whether the Tribunal should exercise its

powers under section 9 9 ( 2 ) ...

3 .      ...

4 .      ...

5.    Whether the Tribunal should exercise its power under sectron 119 to issue directlons:

( 1 ) prohibiting Ron Casey from presenting
programs ln live broadcasts, or

(ii)    lmposlng restrictions on the presenting by Ron Casey of programs in live broadcasts;

6 .      ...

l. ...

By letter dated 5 May 1988, the Tribunal provided the applicant's solicitors with an "Informatlon paper" in respect of

the "decisions" that the applicant had breached the program

standards. The paper discussed the relevant standards and

explained the provisions of s s . 85, 99, l01 (empowering the

Tribunal to reprimand or admonlsh a llcensee which has

contravened s . 9 9 ( 1 A ) ) and 119. The issues were restated in the

paper in the terms stated in the notice of lnqulry.

By letter dated 24 June 1988, the applicant's solicitors

lodged written submissions with the Tribunal on behalf of the

applicant.	In his submissions, the applicant asked the Tribunal
to "review and	reverse" its findings of breach. The applicant
further submitted that	the powers conferred by s.119(1) should
not be exercised.

By letter dated 11 July 1988, the applicant's

solicitors asked the Tribunal to expedite the inquiry. On 28

July 1988, the Tribunal confirmed that the hearing would take place on 11 and 12 August 1988. On 2 August, the solicitors for the second respondent asked the Tribunal to vacate the August hearing dates. This was opposed by the applicant but acceded to by the Tribunal.

The Tribunal has informed the parties that Mr. Wllson

will constitute a Division of the Tribunal for the purpose of

holding this inquiry. It will be recalled that Mr. Wilson was a party to two of the "decisions" made on 25 March. However, by letter dated 23 August the appllcant's solicltors informed the

Tribunal that the applicant had no objection to

sitting.	Mr. Wilson
AS has been said, the Tribunal has fixed next Wednesday, 21 September, for the hearing of the inquiry. The	applicant	now

seeks, by way of urgent interim relref, a temporary stay of this
hearing pending the final determlnatlon of these proceedings.

/ .

According to the application for an order of review

filed on his behalf, the applicant's claim for-relief under the

Administrative Decisions (Judlclal Review) Act 1977 in the flnal proceedings will be that the "decisions" made on 25 March 1988

were bad because they were made unfarrly and in breach of the

rules of natural ~ustlce	because he was not given any adequate
opportunity to be heard.	He will also claim that the proposed
conduct of the Tribunal in	holding the inqulry "1s based on and
assumed the validity or	correctness of the decisions. ..made on 25

March, 1988 which are void" and, it is said, the proposed conduct is therefore also void (ground 6). It will also be contended that the Tribunal's conduct "in reaching and announcing the decisions of 25 March, 1988 and in publicising them thereafter will vitiate the proposed inquiry by reason of bias" (ground 7).

In additlon, the applicant has developed a further argument in

the present application to the effect that the procedures proposed to be followed by the inquiry contravene the Act and the regulations made under it.

It is first necessary to consider whether the applicant

has demonstrated that there is a serious question to be tried on

at least one of hls arguments.

In order to understand the respective contentions of the parties, reference should be made to some of the detail of the

Statutory scheme (Division 3 of Part I1 of the Act) as follows.

Where the Tribunal receives an application requesting the

exercise of any of Its substantive powers (which include the
giving of directions under ss.99(2) and 119(1) - see

s.l7A.(2)(j)) or proposes to exerclse any of these powers

otherwlse than on such an appllcatlon, the Tribunal shall hold	an
inqulry into the requested or proposed exerclse	of the power

(s.l7C(l)). The lnquiry shall be held In accordance wlth

Division 3 and the regulatrons (s.l7C(5)).

Where the Trlbunal commences an inquiry, lt shall publlsh a notice, in accordance wrth reg. 9(3) of the Australian Broadcasting Tribunal (Inquiries) Regulations, of the commencement of the inqulry (reg.9(1)). The notlce shall (a) set out relevant particulars of the appllcation; (b) speclfy the issues to be considered In the Inquiry; (c) specify where copies of the inquiry file may be Inspected by members of the publlc; and (d) specify when Interested persons may make submissions to the Tribunal in relation to the inqulry (reg. 9(3)). Where the Tribunal is satisfled that the issues to be considered in an inquiry, as stated in the notlce under reg. 9(1), should be changed, the Tribunal shall determine new issues to be consldered in the inquiry (reg. 12(1)). Where the Trrbunal determines new

issues to be consldered in an Inquiry, belng issues that are

substantially dlfferent to the issues stated in the notice

published under reg. 9(1), the Trlbunal shall, subject to any

dlrectlon under s.19(2) of the Act (dealing with, inter alia,

confidential material), as soon as practicable (a) glve notlce in

writing to the parties to the lnquiry of the new issues to be

considered; and ( b ) publish a notice settlng out those new

issues and specifylng the time for the maklng of submissions, havlng regard to those new Issues (reg. 12(2)). If the Tribunal

considers it necessary or deslrable to conduct any part of the

proceedings in an inquiry orally, lt may hold a hearing in

relation to that part of the proceedlngs (reg. 14(1)).

On behalf of the appllcant, lt is submitted that, on the proper construction of the Act and the regulations, the Trlbunal cannot make a declslon that a person has contravened the Act or has not complled with the program standards unless the Tribunal has first held an rnquiry pursuant to Dlvislon 3 of Part I1 of the Act; since no such inquiry was held before the making of the several decisions given on 25 March 1988, it follows, the argument runs, that those decislons were invalid.

In Laws v. Australlan Broadcasting Trlbunal (unreported,

S August 1988), Morling J. appears to have rejected such an argument. However, the position here is complicated by a number of considerations. Flrst, Morling J. seems to approach the case

from the standpoint of the posslble application of the rules of natural justice whereas the present argument, whlch does not appear to have been considered by his Honour, is now put as a matter of pure statutory construction. Secondly, Mr. Laws has appealed from Morling J.'s decrsion. Thrrdly, In the later

decision of the Full Court ln Australian Broadcasting Tribunal v.

(unreported, 10 August 19881, a ma~ority reversed the

declsion of Morling J. in that case; and in Laws, Morling J. -

adopted the approach he had taken In Bond as to the intended
operatlon of Division 3 of Part I1 of the Act. Fourthly, an
application for leave to appeal wlll be heard by the High Court

In Bond on 6 October. In all these clrcumstances, it is

submitted on behalf of the applicant that the decision of

Morllng J. in Laws should not govern the result of these

proceedings, or, at least, that declslon should not be treated as determlnative of the present appllcatlon in the sense of decldlng

conclusively that no serious questlon arises as to the

correctness of any of the applicant's arguments. On the

contrary, it 1 s said, there is at least a doubt as to the proper

lnterpretatlon of the Act and	the regulations for	present
purposes.

On behalf of the Trlbunal, it is submitted that we should proceed upon the footing that the Trlbunal has not yet decided whether or not the applicant was in breach of the program standards. In the course of the present application, an undertaking was proffered on behalf of the Tribunal that at the inquiry proposed to be held on 21 September, the applicant "wlll have every opportunlty to relitigate the question whether there was a breach of the program standards."

There are dlfflculties in acceptlng this submission,
although it 1s neither necessary nor appropriate finally to

determine the polnt now. In the flrst place, to suggest that

what had previously been decided was not, in truth, a decision

appears to contradlct the language of the notlce of the inquiry. The notlce stated that breaches had already been found and that the issue for the inquiry was what actlon, ~f any, should be

taken as a consequence of those declsions. The notlce of the Inquiry and the Tribunal's subsequent correspondence make It clear that the Tribunal regarded Itself as havlng decided on 25

March that the appllcant had breached the standards.	Secondly,
if, as now appears to be	the case, the Trlbunal proposes to
permlt the applicant and the	other partles to argue at the

lnquiry the question whether or not he dld breach the standards, the provislons of reg. 1 2 would have to be complied with. In

other words, if, as now appears to be the case, the Tribunal

wishes to withdraw its earller finding and introduce as a fresh question for determlnation the issue whether the standards were

breached, the approprlate statutory procedures would have to be

followed. This would mean that a new 1ssue (viz. whether there

were breaches) would have to be	formulated and.notice given to
the parties and	published in accordance with reg. 1 2 ( 2 ) .

Given the legal complexlty and importance of these

issues, it 1s sufficient for present purposes to say that a serious question arises whether the lnquiry 1s now proceedlng in accordance with the Act and the regulatlons.

But, in order to obtain a temporary stay of the inqulry,
the applicant must also show, on the balance of convenience, that

there are reasons why the discretion to grant interlm relief

should be exercised in hls favour.

On behalf of the Tribunal, it is argued that the

lateness of the present application is a powerful dlscretlonary reason for the refusal of Interim relief. There 1s some force m thls contention.

It 1s true that the appllcant has delayed in brlnglng
these proceedings. On the other hand, the legal questions which

arise are complex and novel.	It 1 s possible and understandable
that all the legal lmplicatlons were not -fully	appreciated
earller by the appllcant and his advlsers. More important on	the
question of discretlon 1s the consideration of the	publlc

interest in the proper working of the statutory scheme contalned

in Division 3 of Part I1 of the Act and in the regulatlons.

Central to the effective operatlon of that scheme is the

requirement that all the issues to be considered in the inquiry

-

be stated	for the partles and for interested	members	of the
public.

Where, as here, a serlous question arises as to the

legality of the procedures adopted by the	Tribunal in terms of
its definition of all the issues to be raised, there are strong	-
reasons for staylng the hand	of the Tribunal untll a court has an

opportunlty finally to consider and decide the point. Otherwlse there is a real risk that the hearlng now proposed by the Tribunal will later be found to have miscarried by reason of the

Tribunal's failure to formulate all the relevant questions it

must determine. It 1s in the interests of all those involved In

the inquiry to ensure that any doubts as to the approprlate

procedures to be adopted by the	Tribunal be resolved sooner
rather than later. If the	inqurry were to proceed without any
such resolution, there 1s	the rlsk that the expense involved in

the conduct of the inquiry would be thrown away should it later
be held that the present procedures were defective.

For these reasons, it 1s appropriate to grant an interim stay of the inquiry until the final hearlng of these proceedlngs. In all the clrcumstances, no order for the costs of this appllcation should be made.

The final hearlng of these proceedings should be

expedited. There appears to be no real dispute about the facts

and the legal questions whlch arise should be able to be argued within the next four or five weeks. In the meantlme, the parties should endeavour to submit to the Court an agreed statement of facts together with a statement of the legal issues which arise.

Conslderation will also need to be glven to the ~oinder

in these proceedings of all the parties to the inqulry.	It would
seem that 2RY should be jolned and that	a representative order be
made that the second	respondent represent the other persons who

applied for the exercise of the Trlbunal's powers. These questions should be dealt with In a dlrectlons hearing whlch I will fix for next Thursday, 2 2 September.

I certify that this and the

precedlng pages are a true copy of the T ~ J E W E ( ' a )

Reasons for Judgment herein of

Mr. Justice Beaumont.

-

- ( 'AJ .

Associate v L- ~E

Dated: 19 September 1988

Counsel and Solicitors	R.V. Gyles Q.C., J. Sexton
for AppllCant:	lnstructed by Bell- Cadogan Couston and Gengos.
Counsel and Solicltor	J.S. Hllton lnstructed by
for Flrst Respondent:	the Australian Government SOllCltOC
Counsel and SOliCltOK	D.K.  Catterns instructed by
for Second Respondent:	H.K.  Roberts, Crown Solicltor for
the State of New South Wales
Date of Hearlng:	16 September 1988
Date Judgment Dellvered:	19 September 1988

.. ..