Cleary v Australian Broadcasting Corporation

[1988] FCA 853

CATCBWORDS

JUDICIAT, REVIEW - Application to review decision of Australian

Broadcasting Corporation refusing to refer	a complaint to a Community
Affairs Officer - whether complaint alleges error of fact	- duty to

identify error of fact - fact and opinion contrasted - procedure

involved in S 82 regarding referral	of a complaint to Community Affairs
Officer - meaning of S 82 - right of referral without intervention	of

Chairman or other officers of Corporation - whether application for

review is made within time pursuant to S 11(3) - whether S 13 of

Judicial Review Act applies to decision given.

Administrative Decisions (Judicial Review) Act, 1977	- ss 11(3) (a) and
(b); 13111)(b)
Australian Broadcasting Corporation Act, 1983	- S 82

I

Between JOHN CEARLES CLEARY First Applicant

~	Applicant	Second	UNION	STAFF	ABC
!

and TEE AUSTRALIAN BROADCASTING CORPORATION First Respondent

l ROBERT D. SOMERVAILLE Resp ent Second

No. G 480 of 1987

Sydney

EINFELD J.

22 January 1988

IN THE FEDER7G COURT OF AUSTRATJA	1
1

GENER?&	DIVISION	1	No. G 4 8 0 of 1987
)

NEW SOUTH WALES DISTRICT REGISTRY 1

Between:  JOEN CHARLES CLEARY

First Applicant

ABC STAFF UNION

Second Applicant

And :	THE AUSTRALIAN BROADCASTING
-

CORPORATION

First Respondent

ROBERT D. SOMERVAILLE

Second Respondent

CORAM: Einfeld J.

DATE:  22 January 1988

PLACE: Sydney

MINUTE OF ORDERS

1. Quash the decision of the second respondent not to refer to a

Community	Affairs Officer, pursuant to section 82 of the
Australian	Broadcasting Corporation Act 1983, the first

applicant's complaint dated 27 July 1987 addressed to the first

respondent's Principal Community Affairs Officer.

2. Order that the first respondent refer the said complaint to a

Community Affairs Officer as soon as practicable.

3.       Order that the first respondent pay the applicants' costs.

NOTE:	Settlement and entry of these Orders are dealt with in Order 36 of Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA	)
1
GENERAL DIVISION	)  No. G 480 of 1987
1
NEW SOUTE WALES DISTRICT REGISTRY 1

Between:  JOHN CHARLES CLEARY

First Applicant

ABC STAFF UNION

Second Applicant

- And : THE AUSTRALIAN BROADCASTING

CORPORATION

First Respondent

ROBERT D. SOMERVAILLE

Second Respondent

CORAM: Einfeld J.

-	DATE: 22 January 1988
PLACE: Sydney

REASONS FOR JUDGMENT

An application was filed on 2 October 1987 for an order of review of a

decision of the Australian Broadcasting Corporation (the ABC) made,

apparently in its name, by its current Chairman, Robert D. Somervaille
(the second respondent). The decision involved	a letter of complaint
(the complaint) dated 27 July 1987 and addressed to the	ABC's Principal

Community Affairs Officer, which was written by John Cleary (the first

applicant), Federal President of the ABC Staff Union (the second

applicant). The decision was that the complaint did not allege that any

errors of fact had occurred in a program, within the meaning of section

82 of the Australian Broadcasting Corporation Act, 1983 (the Act). The

program referred to was broadcast on the ABC's radio station 6WF and

regional stations in Western Australia on 24 June 1987, where certain

statements were made by its Managing Director, Mr. David Hill. A review

is also sought of the second respondent's	refusal to refer the	complaint
to	a Community Affairs Officer (CAO) pursuant to the same section.	The

applicants seek an order that the matters which were	the subject of the
complaint be referred to the CAO.
At the commencement of the hearing the respondents raised a	preliminary

matter in relation to the court's	jurisdiction to hear the matter.	They
submitted	that as this application was made	out of the time prescribed

by section 11 and that as no application for extension	of time had been
filed, the Court could not deal with this matter.	Section 11 provides:

"(l) An application to the Court for an order of review -

(a) shall be mde in such manner as is

prescribed by Rules of Court;

(b) shall set out the grounds of the

application; and

(C) shall be lodged with a Registry of the Court

and, in the case of an application in

relation to a decision that has been made

and the terms of which were recorded in

writing and set out in a document that was

furnished to the applicant, including such a

decision that a person purported to make after the expiration of the period within which it was required to be made, shall be

so lodged within the prescribed period or

within such further time as the Court

(whether before or after the expiration of

the prescribed period) allows.

(2 )	Any other application to the Court under this Act shall be mde as prescribed by Rules of Court.
( 3 )	The prescribed period for the purposes of paragraph
(l)(c) is the period comencing on the day on which
the decision is mde and ending on the twenty-eighth
day after -

(a)	if the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision - the day on which a
document setting out the terms of the

decision is furnished to the applicant; of

(b) in a case to which paragraph (a)

. . -

not	apply	-
if	a	statement in writing setting

out those findings, referring to

that evidence or other material and

giving those reasons is furnished to

the applicant otherwise than in

pursuance of a request under sub-

section 13(1) not later than the

twenty-eighth day after the day on

which a docment setting out the

terms of the decision is furnished

to the applicant	- the day on which
the statement	is so furnished;

if the applicant, in accordance with

sub-section 13(1), requests the

person who made the decision to
furnish a statement as mentioned in

that sub-section - the day on which

the statement is furnished, the

applicant is notified in accordance

with sub-section 13(3) of the

opinion that the applicant was not

entitled to make the request, the

C o u r t makes an order under sub-

section 13(4A) declaring that the
applicant was not entitled to make
the request or the applicant is
notified in accordance with sub-

section 13A(3) or 14(3) that the

statement will not be furnished; or

in any other case - the day on which

a document setting out the terms of
the decision is furnished to the

applicant. ''

In order to address this question, reference must necessarily	be made to
the facts of this case, in particular to the annexures of the	affidavit
of the first applicant sworn on 1 October 1987. Annexure A	of the
affidavit comprises the letter	of complaint. Annexure D is a reply from
the second respondent to the first applicant dated 12 August	1987 and

stamped as having been received on 17 August 1987. The relevant

contents of this letter are as follows:

"Since your complaint relates to the activities of the

Managing Director, he has requested that, with the

assistance of relevant officers of the Corporation, I

consider and reply to your letter.

You state that your letter is a complaint to the Corporation

under Section 82 of the Act. However, none of the matters

alleged in your letter can properly be described as errors

of fact arising out of the material quoted. Moreover, your

complaint does not fall within the purposes for which

Section 82	was enacted, seeking	as it does to debate matters
of opinion	concerning magement issues within the	E.

Therefore your allegations do not give rise to the need for

a reference by the Corporation to	a Comity Affairs
Officer under Section 82. The purpose of this letter	is to
advise you that no such reference will	b made."

The correspondence between the parties following this letter ultimately

led to a request by the applicants' solicitors (Annexure G dated 26 August 1987 and mnexure E dated 14 September 1987). pursuant to section 13 of the Administrative Decisions (Judicial Review) Act 1977 (the

Judicial Review Act), to furnish a statement in writing setting out the

second respondent's findings and reasons	for the decision
The request was satisfied	by the respondents in a letter	dated 17
September 1987 (Annexure	I), although the respondents did	not admit that
this was a	case to which section 13	of the Judicial Review Act applied.

The relevant parts of Annexure I are as follows:

"My findings, as explained in my letters of 12 August and 26

August 1987, are that none of the matters alleged in	Mr.
Cleary's complaints can properly	be described as errors of

fact arising out of the material quoted. Nor can the

complaints be properly described as 'alleging ... an error

of fact'. Accordingly,	the complaints do not give rise	to
the need for	a reference by	the Corporation to a Comunity

Affairs Officer under Section 82.

These findings are based on:

(a) the nine points grouped under sentence 'The facts

are contrary to Mr. Hill's statements' in Mr.

Cleary's letter of 27 July 1987 concerning

statements made on Station 6WF, together with the

particular aspects of M r . Hill's statements to which

the nine points refer;

(b) the six points grouped under the sentence 'The facts

are contrary to M r . Hill's statements' in Mr.

Cleary's letter of 27 July 1987 concerning

statements made on the regional network in Western

Australia, together with	the particular aspects of
Mr. Kill's	statements to which the six points refer.

The reason for my decision not to refer the matter is that

the above points do not constitute	a 'complaint	. . . alleging
. . . an error fact', as	the complaints really seek	to debate

matters of opinion or policy concerning management issues

within the AEC, while purporting in both cases to be a /complaint . . . alleging . . . an error fact'. That is, the

complaints are attempting to recite into the Section 82

procedure matters which are not encompassed by that

Section. "

The dual mistaken reference to 'error fact' is obviously typographical.

The letter was received on 18 September 1987. The argument of the

respondents was that if section 13 did apply, Annexure D had

sufficiently advised the applicants of the respondent's decision and the

relevant facts. Annexure I, they argued, was explanatory and in

amplification of Annexure D. That being so, the 28-day period fixed by

section 11(3)(a) of the Judicial Review Act commenced as at the date of

the furnishing of Annexure D. There may be some debate as to whether

'furnished' in section 13 means the date of sending or the date of

receiving. Although it is not necessary to decide the matter here,	I am
inclined to believe that	it means the date of receiving the letter. If
so, according to the respondents' argument, the	28 days would begin to

run on 17 August 1987, and would expire on 14 September 1987. If so,

the application was clearly filed out of time. On the other hand, if

the 28 days is counted from the despatch	or receipt of Annexure I, the
application is within	time.

In my opinion section 11(3) is poorly structured. The prima facie

impression given by subparagraph (a) is that it establishes criteria to deal with decisions which set out factual findings, whereas subparagraph (b) seems to provide different criteria, while purporting to deal with the same matters. Nonetheless, I think that Annexure D cannot be said to come within section 11(3)(a) as submitted by the respondents because although it informs the first applicant of the findings, it cannot be said to refer to 'the evidence or other material on which these findings

were based'. Annexure I does so, at least in the sense of providing

more factual information regarding the decision. Consequently, the

operative provision is section 11(3)(b)(ii) or (iii) and the operative

date for the commencement	of the 28-day period is the date	of receipt of
Annexure I.
The requirements and purpose of this section have been	considered	in

cases such as Samuel Bolan Hatfield v Health Insurance Commission

(Davies J, 27 August 1987, unreported) and in Arm Constructions v Deputy Commissioner of Taxation (1986) 65 ALR 343 at 349, where Burchett J stated with significant clarity:

"Section 13 is a crucial provision designed to ensure that

the basis upon which a decision is made is able to be seen,

so that its legality can be determined. It should not be

viewed by any decisionmker as a threat to be evaded by a

camouflage of obscurity. Al it requires to be set out is a

statement of the matters the administrator must have
considered in making the decision in the first place - what
he found the facts to be, what material he considered in

arriving at those findings, and the reasons for his ultimate

decision. I'

In Ansett Transport Industries (Operations) Limited v Rae Martin Taylor

(10 April 1987, unreported) Lockhart J at p 8-9 provided the

philosophical explanation for the section:

"Section 13 seems to strike a balance between the requirement that persons affected by an admlnistrative

decision know the basis upn which it was made and the
necessity that the admlnistration of this country be carried

on effectively without undue intervention by	the courts in
the admlnistrative process. The citizen	must have, when he
receives the statement, sufficient information	to decide
whether to accept the decision or	to pursue the macter
further within the admlnistrative process itself or	to
challenge the decision in	the courts."

The respondents contended that in section 13(11). the words	'a decision
to which this section applies' means	a decision to which the Judicial

Review Act applies but does not include certain decisions. Section

13(11)(b) provides:

(11) In this section, 'decision to which this section

applies' mans a decision that is a decision to

which this Act applies, but does not include -

(b) a decision that includes, or is accompanied

by a statement setting out, findings of

facts, a reference to	the evidence or other
material on	which those findings were based
and the reasons for	the decision."

The respondents stated that reasons did	not have to be given for
decisions when the actual decision itself includes	or is accompanied by
statements setting out the findings	of facts. The respondent maintained

that Annexure D provided such statements and therefore that nothing

further was required calling for	or permitting the facility provided by
section	1 3 .
I do not agree with this submission.	The contents of Annexure D cannot
be said to come within the exception provided in section 13(11)(b),	in

the light of the approach advised by Lockhart and Burchett JJ (above). By contrast, Annexure I is or may be accepted as compliance with the requirements of a section 13(1) statement.

For these reasons I find that the application was made	in time and I
therefore have jurisdiction to hear the matter.
The central issues that	fall for determination in the case are:

1.       Does the letter of complaint allege any error of fact within the

meaning of section 82 so that the section becomes operative?

2.       If so, have any errors of fact been identified as calling for reference to the CAO? Or were the impugned statements merely statements of Mr. Hill's opinions?

3 .	Does the second respondent have standing to decide the question
of whether any errors of fact were identified or whether the

complaint alleges errors of fact? Alternatively, does the

legislation require this question to be referred to the CAO?

If the answers to these questions are yes, section 5 of the Judicial

Review Act would, subject to discretionary matters, entitle the

applicants to a review of the decision and	to one or more of the orders
provided for under section 16(1).

The statements of Mr. Bill on which this case focuses are as follows:

“PRESENTER: Newspapers report that the ABC staff are

presently angry about savage cuts in drama and music and

schools broadcasts. In fact I had a call about that this

morning before the program began, and this is at	a t me when
the organisation is apparently advertising for	a $50,000 a

year specialist in television game shows, in an apparent
quest for ratings. Now anybody who like myself has worked
in comercial radio can understand the importance of
ratings, but are we in taking this course sacrificing

quality, David?

HILL: No, look there’s no change in the direction the E ’ s

heading. We’re not moving from the cultural to the trivial.

That story you referred to, which	I t ink appeared in The
West Australian newspaper yesterday, is re-print of	a SE
that appeared	in The Sydney Morning Herald. There’s no
substance to it. The story	came out of Sydney. The problem
is with Radio National, or here	in Perth 6W, which produces
a lot of very good radio	- it’s the sister station of this
one, 6W.	But it‘s been going through bad times: it’s lost

half its audience, and frankly it’s going out of business,

and we‘ve got to make some changes to it if we don’t close

it down. That‘s how serious it is. Unfortunately, in

Sydney you’ve got a small militant group of staff who

control sections of the Staff Union. They’ve been nicknamed

the bomb throwers, and my observation is they‘re not as much

concerned about the ABC generally and not concerned really

about the whole membership of the staff of the ABC, but more concerned about their jobs in this ailing Radio National.

And no I don’t put much credence to it. They put out

mischievous newsletters.	I think that Staff Union group	-
that small militant group in Sydney	-	with this sort of

campaigning has done more damage to the confidence of the

ABC, both within the	ABC and I think within the comunity,
than any other factor in recent years.	I’m frankly sick of
it. It’s what a lot of people out in the	comunity I think

are sick of - this small, radical wing in Sydney Radio,

which perpetually indulges itself in navel-gazing. It‘s not

helping the W . The truth is the ABC has had continual

funding cuts, and unfortunately right across the board we‘re

all feeling the pinch, but this groups squeals	tlie loudest.
PRESENTER: David let me put to you the views	of Earry Hill,

a radio critic whom I don‘t know incidentally, but I read

him regularly. He attacked you last week, describing you as

a pushy pragmatist, I think was his phrase. He implied that

if Radio National didn’t pull its socks up, and we all agree

that ratings-wise it certainly needs to, it would soon be

wall-to-wall football broadcasts. Is that what Radio

National, that‘s	6W here, can look forward to?
HILL:	No, I think you‘d have to put that journalist in the
same category. There has never been	a proposal to put

football on Radio National, or the station here in Perth, as

I said 6hw.	Radio National costs taxpayers $30 million a
year to run.	We only transmit it in the capital cities,
it's lost half its audience in the last	5 years, it now
attracts less than	2% of radio audiences, and frankly we've

got to stop the rot. Now Radio National has to change, or

collapse. And unfortunately in the	ABC there are lots	of
people who've eked out	a sinecure for themselves in	Radio

National who will bitterly resist change. Well, if we don't

change, Radio National will cease to exist."

These statements formed the basis	of the complaint and were the ones on
which	the second respondent pronounced his judgment and conclusions in

the correspondence to which I have referred.

Submissions of Applicant

The applicant contended that these statements contain nine	errors of
fact. They are:

"1 . In Sydney you've got a small militant group of staff

who control sections of the Staff Union;

2.      They've been nicknamed the bomb throwers;

3 .      My observation is they're not as much concerned

about the ABC generally and not concerned really

about the whole membership of the staff of the ABC,

but more concerned about their jobs in this ailing

Radio National;

4 .	They put out mischievous newsletters;
5.	With this sort of campaigning they have done more
damage to the confidence of the AEC, both within the

ABC and I think within the comunity, than any other

factor in recent years;

6.     What a lot of people out in the comnunity I think are sick of - this small, radical wing in Sydney

Radio, which perpetually indulges itself in navel-

gazing;

l .	The truth is the ABC has had continual funding cuts,
and unfortunately right across the board we're all feeling the pinch, but this group squeals the loudest;
8 .	I think you'd have to put that journalist (i.e.
Barry Hill) in the same category;
9.	Unfortunately in the AEC there are lots of people who've eked out a sinecure for themselves in Radio National who will bitterly resist change. Well if we don't change Radio National will cease to exist."

It is not for me to determine the matter finally but on a fair reading

of points 1 to 9, it seems to	me that the robust language used permits a
basic factual allegation to be distilled from each one. The members	of

the second applicant, and the first applicant as their President, are

entitled,	as would have been the listeners to the program, to believe
that Mr. Hill's	assertions were or purported to be statements of fact,
coloured by his pungent opinions of their severity and	effect on the
Corporation.

The answers given by the first applicant in the complaint went to, the

basic facts alleged	and suggested factual errors. They are contained in
the following:

"1 .	There is no mall militant group of staff in Sydney, who control sections of the Staff Union. Every
official of the Union has been elected in accordance
with the provisions of the Conciliation and
Arbitration Act, in elections conducted by the
Industrial Registrar every two years. Mr. Hill's
words "taken control of certain positions of the
Staff Union" imply either that those officials of
the Union are controlled by other people (navel- gazers or bomb throwers), or that the officials obtained their positons through some questionable or
improper means. The policies pursued by the ABC
Staff Union are not militant, and Mr. Hill gave no
evidence to support such a contention, which is
implicit in his statements. Nor are any of the elected officials of the Union "militant".
2.	No-one to my knowledge has nicknamed any official,
or member, of the AEC Staff Union a bomb thrower,
nor does Mr. Hill present any evidence to support
his contention that they are so nicknamed.
3 .	It is untrue to say that officials of the AEC Staff
Union are more concerned about their jobs in Radio
National than with the ABC generally and the
membership of ABC staff. Mr. Hill presents no
evidence to support this statement. I enclose
material which demonstrates that the Union has been concerned with all sections of its membership, and
with the general welfare of the ABC.
4.	The Union in Sydney does not put out mischievous
newsletters, nor does Mr. Hill present any evidence
to support this statement.
5 .	The Union has done nothing to undermine confidence
in the AEC, either inside or outside the
organisation. Contrary to this untrue assertion, the Union has a long record of defending the E ' s independence and programs, and fighting the E ' s independence and programs, and fighting against
Government budget cutbacks. For example, on 19
December 1985 the Minister for Comunications, Mr.
Duffy, informed the then Board of Directors of the
ABC of how remarkably successful the Union's
campaign had been in obtaining recognition in
Canberra for the plight of the organisation. This would hardly have been the case had we been
undermining confidence in the AEC. During a major
industrial and public campaign that year, the Union had comissioned research from Mervyn Snythe about
the comparative budget situation of the AEC ov r the
previous decade. This research s owed some
deficiencies in AEC management's approach towards
the m ' s budget. I enclose a copy of that
material, and copies of a range of material which
illustrates that the Union's public activity has
been directed to defending and improving the
position of the ABC.

6. There is no evidence to support he alleged

existence of a "small radical wing in Sydney Radio",

nor the contention that a lot of people in the

comnunity are sick of it, nor that it perpetually

engages itself in navel-gazing.

7. While the fact that the AEC has continual funding

cuts is indisputable, as is the fact that all

sections of the AEK have been feeling the pinch, it

is untrue to say that "this group squeals the

loudest". The evidence is that the officials of the

AEC Staff Union have always actively campaigned on behalf of all sections of its membership. The

material referred to in point 5 above supports this.

8 . In making this statement Mr. Hill is putting the

Union into the same category as Barry Hill, when

that journalist allegedly said that Radio National

would broadcast football. The Union has never made

such a claim, and Mr. Hill is falsely associating

the Union with the statements of another.

9.     In making this statement Mr. Hill is indulging in

group slander against a significant section of the

ABC Staff Union' membership, the vast majority of

whom work hard, earn widespread praise in the
comity, win national and international broad-

casting awards, park political debates in

Parliaments across the nation and cause official

Government enquiries to be initiated. This can not

be tenned as eking out a sinecure. Further, Mr.

Hill is wrong when he claims that the staff of Radio

National "bitterly resist change". The fact is that

they have been advocating change to Radio National

for some years, and many of them have already

initiated changes to workstyles and programs. For

example, many of the Sydney staff of Radio National

participated in the National Radio Conference in

1984, which set new directions for Radio National,

and established significant new programs (e.g.

Sydney Breakfast on 2FC)."

This is the very essence of section 82, which provides as follows:

(1) Where a written complaint is made to the

Corporation alleging -

(a) that an error of fact has occurred in a

program, announcement or other matter

broadcast or televised by the Corporation;

or

(b) that an invasion of privacy has occurred in,

or in connection with the preparation of, a

program, announcement or other matter

broadcast or televised by the Corporation,

the complaint shall be referred as soon as

practicable to a Cornunity Affairs Officer appointed

in accordance with this section.

(2) A Comnunity Affairs Officer is not required to

investigate a complaint if, in his opinion -

(a) the complaint is frivolous or vexatious, or

was not made in good faith; or

(b)	the complainant does not have a sufficient
interest in the subject matter of the

complainant.

The applicants submit that by the use of the word 'shall', and by

inserting the provisions of sub-section	(2). the Legislature clearly
intended the imposition of an obligation to refer	a matter to the CA0

where any complaint	is made alleging erroneous statements on	a program.
The applicants say that this would accord with the policy	of	the
section, which	as it was primarily directed towards making	a facility

available to the public at large, was not intended to raw fine legal or

pedantic distinctions between what is 'fact' and what is 'opinion',

permitting some type of 'chopping off at the pass' of complaints about

ABC programs.

The applicants emphasised the independent role of the CA0 in examining

complaints. The Parliamentary Debates (Hansard) show that on 12 May

1983 in the House of Representatives, the then Minister for

Communications, Mr. Duffy, said of this independence at p 521:

"The fact is that the comnunity affairs officers are going

to examlne complaints in an independent way. That is why

complaints will go to them and not to management. That is

the whole principle of the matter."

In the Senate on	25 May 1983, Senator Button, representing the Minister,
said at	p 838:

"In referring to the	complaints procedure, I remind those
honourable senators	who have comnented on it about the

structure of this Bill. The complaints procedure is not an

exclusive procedural mechanism for making complaints. The

complaints procedure is designed for	an aggrieved individual
who has a complaint that his	or her privacy was invaded or
that the	ABC has published material about him or her which

is untrue. The legislation is designed to provide a

mechanism of speedy rectification of that sort of

complaint. "

The applicants stressed that the constuction of the section must be considered against this background to ascertain the purpose of the

mechanism being provided by section 8 2 .

The respondents ubmitted that Mr. Bill's statements hould be

approached globally and in context. They should not be considered in

segments. The respondents submitted that Mr. Hill's statements were his

personal thoughts, opinions and observations, as evidenced by his use	of
words like 'my observation is' and 'I think'.	It is of course possible

to express an opinion in a way which makes it clear that the speaker is

stating a fact, or stating both fact and opinion at the same time.

Bowever, the respondents asserted that the complaint in this case

actually called into question the opinions expressed rather than any

factual component.

I can see nothing in the legislation to support this global approach.

It seems to me that the use	of the words 'error of fact', and the
absence of wording like 'unfair'	or 'inaccurate', suggests that each

statement is intended to be looked at separately, although	f course the
context may be used to determine whether	an ostensible factual error is
in fact not truly erroneous.

The respondents submitted that the CAO's principal role is to deal with

errors by individuals	in the community who have nothing to do with the
ABC.	They said that the very title of this officer suggests that he is

a person to deal with complaints from the community at large as opposed

to dealing with internal matters of dispute within the ABC. They argued

that the purpose of section 82 is to allow people outside the ABC to

have some input on factual matters where	an error of fact has occurred
on a program or a broadcast. It was said that employees of the	ABC were
not intended to be the beneficiaries of this provision.

I do not accept this submission. Parliament has not limited the victims

of errors of fact who may complain. The only limitation is that they

must have occurred on ABC programs and broadcasts. It would be strange

if, say, ex-employees could complain about errors concerning themselves

while they were employees, but not current employees. Yet that is what

would follow if the respondents' submission was correct. Some of Mr.

Hill's assertions may suggest to some that his view is different, but in

my opinion, ABC employees do not cease to be members of the community

because of their service to the Corporation.

It was further submitted that section 28 relates to objective facts,

that is, facts which can be independently verified, and that in this case there are no objective facts. There	is no substance in this
submission. Parliament may have surprised some people by enacting	a
simple innovative process, but it should not be assaulted for having	:
done so, by attempting to translate	or convert the easy expression

'error of fact', in the context of complaints from the general public,

into a lawyer's picnic. Most people have an idea what a 'fact' is. I

suspect not many would know what the 'objective' variety look like.

Some facts can be independently verified; some cannot be, especially f o r

example when the 'fact' is old, does not exist any longer, or is so

obvious that proof is not necessary. Some facts are 'facts',	although
the only available independent verification is dead. This argument
fails.

The respondents further argued that section 82 was designed to provide

what they decribe as a narrow remedy to persons who have complaints

against the ABC. As I understand it, the provision seems to have been

enacted so that if someone has a complaint against the ABC, there is

some type of mechanism within the ABC, as opposed to outside it, to

consider the matter complained of. The parliamentary debates in

evidence, in my opinion, show that this scheme was a deliberate and

fully advised move to show that the Government has confidence in the ABC

to handle fairly all complaints made against it. The substance of the

debate was not about what should be investigated but by whom it should

be investigated. It is the clear meaning of the Act,	as it was patently
the intention of Parliament, that	as long as the complainant is alleging
one or more erroneous factual statements, that	is statements which were

not correct from the complainant's knowledge of the facts, and they

occurred on an ABC program, the CA0 has work to do. Opinions may be

shared or they may differ. Statements asserting facts will normally be

correct or incorrect or some of both. The CAO's	task is to consider
whether a complaint 'alleging' errors of fact is	or is not well based.

The respondents submitted that under section 82(2)(a), this complaint

should be found to be frivolous or vexatious. They said that if I were

to refer the matter to the CAO, it would all be to no avail as the

officer would dismiss the matter on this basis. Because of this

futility, the respondents aid, I should therefore xercise my

discretion under the Judicial Review Act to refuse the orders sought.

I must confess to	a complete inability to see any evidence	o f frivolity
in the statements made,	or in the complaint about them. Like	Mr. Bill's

observations in the broadcast complained of, the complaint may be highly

contentious and argumentative but it is, in my view, certainly not

vexatious. These are, however, matters for the CA0 and not for me, and

there is no basis in the	Judicial Review Act for refusing review on this
ground.

The final issue is whether the second respondent had the power to

refuse, on his own initiative, to refer the complainant to the	CAO.
Section 82 says that complaints 'alleging'	errors of fact 'shall be

referred' to the	CAO. The section does	not state who must do	the
referring, nor	whence	the	second respondent as Chairman of the

Corporation gains any statutory or other power to intercept the

procedure provided by the section, and make a	finding, not only that no
'error of fact was alleged, but that there was no error of fact.	Neither
the legislation nor the parliamentary debates make mention	that there is

to be some form of preliminary inquiry by the Chairman 'with the assistance of relevant officers of the Corporation', to determine whether there is or is not some type of prima facie case to be determined by the CAO.

I have said that in my view, Parliament designed a simple mechanism of

section 82 to deal with complaints about Al3C programs. When a complaint

is expressed in terms of apparent errors of fact, the Act seems to me

to require, except perhaps in the most exceptional circumstances not here present, that the complaint should be sent to the CA0 without prior

consideration by anyone. Neither the Chairman nor the Corporation nor

any unnamed officers have been asked	or authorised by Parliament to play
any role in the prior evaluation of a complaint or to interpose	anyone
between the complainant and the	CAO.

The meaning gained from the phraseology of the section is that complaints will normally be made to the Corporation. The mechanism

provided thereafter is that once received, the Corporation must then

refer the complaint to the CAO. The section does not provide for some

other body or person even to have a view on the question of reference to

the CA0 or the suitability	of the complaint for reference, still less to
determine such matters.

On its face, this is a complaint about a program on the ABC, alleging a

series of errors of fact. The next step provided by section 82 is for

the CA0 to consider the matter. An unauthorised intermediate mechanism

has intercepted the procedure and thereby prevented section 82 from

operating. This an error of law. It is not answered by reference to

the Chairman's power to act in the name of the Corporation on

appropriate occasions, because the Corporation also does not have the

power to intercept complaints.

In my view, the CA0 has the power to decide virtually every aspect of a

complaint, including whether it is a relevant complaint at all, whether it is frivolous or vexatious, whether it has been made in good faith,

whether the complainant has sufficient interest in the subject matter,

and of course whether the complaint s justified.

There are no discretionary matters which I believe should deprive the

applicants of an order of review consequent upon these findings that

errors of law have been demonstrated. There seemed to be no dispute

between the parties that if I found no statutory role for the second

respondent or anyone else in the Corporation in relation to the

complaint - other than the purely administrative function of physically

sending it to the	CA0 -	I should make a declaration under section
16(11(c)	or an order under subparagraph (d) because there	is no legal

decision-maker to whom the matter can be referred for reconsideration

under subparagraph (b). In this event, counsel for the respondents said

that I should make the declaration or order only against or in relation

to the Corporation and not the first respondent.	I agree.
Review of the decision	in this case is available on several of the
grounds provided in section 5.	It will suffice if I uphold the ground
provided by section 5(l)(f) and find that	the decision involved the

errors of law referred to. It is unnecessary to make both a declaration

and an order.	I therefore quash the decision of the second respondent
refusing to refer the complaint of the first respondent dated	27 July

1987 to a Community Affairs Officer and order the first respondent to do

so as soon as practicable.

mxtify that this	and t h m
proceding pages	v a ’ .
Peasons for Judnrno.it hn:c	c: 1: S Honour
Mr. Justice Einfeld

Counsel and Solicitors f o r the Applicants Mr. R.F. Wilkins

instructed by
Turner Freeman

Solicitors

Counsel and solicitors for the Respondents Miss G. Murrell

instructed by Bruce Donald Solicitor

ABC House, Sydney

Date of Hearing	13 November 1987 and
2 December 1987
Date of Judgment	22 January 1988