Commercial Radio Coffs Harbour v Fuller

[1986] HCA 42

HIGH COURT OF AUSTRALIA

Gibbs C.J., Wilson, Brennan, Deane and Dawson JJ.

COMMERCIAL RADIO COFFS HARBOUR v. FULLER

(1986) 161 CLR 47

1 August 1986

Constitutional Law (Cth)

Constitutional Law (Cth)—Inconsistency between Commonwealth and State laws—Commonwealth law prohibiting operation of broadcasting transmitted without licence—Power to grant licence subject to conditions—Minister to determine specifications for licence—Licensee required to commence service on stipulated date—Failure to comply with Act an offence—State environment protection law prohibiting building without consent—Whether applicable to building required to house licensed broadcasting transmitter—Whether laws inconsistent—The Constitution (63 &64 Vict. c. 12), s. 109—Broadcasting and Television Act 1942 (Cth), ss. 6A(1), 81, 88, 89c, 132(1)—Environmental Planning and Assessment Act 1979 (N.S.W.), ss. 76(2), 78, 90, 125, 126.

Decisions

GIBBS C.J. and BRENNAN J.: Except for the opinion which we hereafter express as to the construction and operation of s.132(1) of the Broadcasting and Television Act 1942 (Cth), we agree with the reasons for judgment of the majority.

2. Among the many and diverse provisions to which s.132(1) applies is s.89C:
" The holder of a licence shall commence the
service in pursuance of the licence on such date as is determined by the Tribunal." Unless s.132(1) is to be read down, the holder of a licence is bound under penalty to comply with every condition of the licence and to commence the licensed service on the date determined by the Tribunal. On behalf of the applicant it is argued that, if the planning laws of New South Wales make it unlawful for the holder of a licence to do what has to be done in order to comply with the conditions of the licence and to commence the licensed service on the specified date, then simultaneous obedience to both the Commonwealth Act and the State planning laws is impossible and there is inconsistency between them.

3. The answer to this argument is to be found in the nature and purpose of the relevant provisions of the Commonwealth Act. Part IIIB of the Act provides for exemptions from the general prohibition of operation of transmitters for broadcasting and television enacted by Part IA. The purpose of Part IIIB is simply to provide the machinery for the granting of licences and to prescribe what the holders of licences must do to comply with the licensing regime. Part IIIB does not purport to confer powers or authorities on the holders of licences. If a duty imposed on the holder of a licence cannot be performed without contravening another law, Part IIIB gives no authority to contravene the other law.

4. Nor, in our opinion, does s.132(1). Ordinarily, a provision which imposes a duty under penalty to do a thing specified in the provision would be construed as conferring on the person on whom the duty is imposed a power or authority to do that thing: Fenton v. Hampton (1858) 11 MooPC 347, at pp 360-361 (14 ER 727, at p 732). But an alternative construction may be warranted. If it is impossible to do the thing specified in the provision without contravening another law, the provision may be construed either as authorizing the doing of that thing (so that it is inconsistent with the other law) or as imposing a qualified duty which stops short of requiring contravention of the other law. It would be erroneous to construe s.132(1) - a general offence-creating provision - as conferring authority to do the many and diverse things which fall within its scope if the doing of those things is prohibited by other laws. The better construction is to read s.132(1) as not applying to a failure to comply with a condition or with the requirements of s.89C where compliance is impossible without contravening another law (provided, of course, that the other law is not inconsistent with the more specific provisions of the Act). In our opinion, s.132(1) stops short of authorizing a contravention of a State planning law.

5. If, on its true construction, s.132(1) required the holder of a licence to comply with a condition of a licence or with s.89C even though that necessarily involved the contravention of another law, s.132(1) might prevail over the other law (if it be a law of a State) or it might impliedly repeal the other law pro tanto (if it be a law of the Commonwealth). But as we do not think that that is the true construction of s.132(1), we are unable to find any inconsistency between that provision and the State planning laws. It follows that if a local council withholds its consent to a development application made under the State planning laws, the grantee of a licence under the Commonwealth Act may be unable to exercise the authority to broadcast conferred by the licence. That may expose the licence to the risk of suspension or revocation, but it does not expose the licence holder to criminal liability under s.132(1).

6. We therefore agree that the question removed into this Court should be answered in the negative.

WILSON, DEANE and DAWSON JJ.: In this matter the Court ordered the removal into the Court, pursuant to s.40(1) of the Judiciary Act 1903 (Cth), as amended, of so much of the cause pending in the Land and Environment Court of New South Wales as raises the question whether there is an inconsistency within the meaning of s.109 of the Constitution between the Broadcasting and Television Act 1942 (Cth), as amended, ("the Commonwealth Act" or "the Act") and certain provisions of the Environmental Planning and Assessment Act 1979 (N.S.W.), as amended, ("the State Act"), the Height of Buildings Act 1912 (N.S.W.), as amended, and the Land and Environment Court Act 1979 (N.S.W.), as amended. The order was made on the application of Commercial Radio Coffs Harbour Limited, to which we shall refer as "the applicant". The Attorneys-General for the States of New South Wales and South Australia each intervened in support of the first respondent, who seeks to uphold the validity of the State legislation.

2. On 22 March 1982, the applicant, in response to a notice published in the Commonwealth of Australia Gazette No. G8 on 23 February 1982 by the Minister for Communications pursuant to s.82 of the Commonwealth Act, applied for a licence for a commercial broadcasting station to serve the Shire of Coffs Harbour and a portion of the adjacent Shire of Bellingen in New South Wales. Between June and December 1983, the Australian Broadcasting Tribunal ("the Tribunal") held an inquiry at Coffs Harbour regarding the grant of the licence. On 11 September 1984 the Tribunal announced that it would grant to the applicant a licence for a commercial broadcasting station for a period expiring on 31 August 1989, subject to the condition that the licensee take all reasonable steps to obtain by 1 October 1985 the approval of the Department of Communications for the commencement of regular transmission. The Tribunal refused to grant a licence for a commercial broadcasting translator station to two other applicants.

3. On 13 February 1985, the applicant sought from the Department of Communications a determination of the service area and the specifications applicable to the licence. It proposed to locate the transmitter on land situated at Raleigh about 1.3 kilometres south-west of the village of Mylestom. The Minister for Communications made a determination on 25 June 1985 specifying the area to be served under the licence, the purpose of the service and the technical parameters within which the licensee should operate. The Minister's determination confirmed the location of the radio transmitter in accordance with the application, the height of each antenna mast and the configuration of the installation. On 23 July 1985, the Tribunal issued a licence for a commercial broadcasting station to the applicant subject to certain conditions which included the specifications determined by the Minister on 25 June 1985.

4. In the meantime, several other steps had been taken. By letter dated 19 January 1985, the applicant's consultant engineers ("the consultants") forwarded to the Bellingen Shire Council a development application under the State Act to construct two radio transmitter towers and associated guy wires and anchor blocks and a transmitter shed on the proposed site. On 4 February 1985, the Department of Aviation consented to the erection on the proposed site of two radio antennas to a height of 170 metres subject to certain conditions relating to marking and lighting. On 3 May 1985, the Minister administering the Height of Buildings Act approved of the erection of the towers.

5. A notice of the proposed development was inserted by the Bellingen Shire Council in a local newspaper on 13 and 20 March 1985 advising any person who might be affected to lodge an objection in writing to the Council. The Council received many objections including a petition containing some 572 signatures. The consultants wrote to the Bellingen Shire Council on 16 May 1985 and again on 20 May 1985 in an attempt to answer some of the assertions which had been made about the environmental effect of the proposed development and requested the Council to proceed to deal with the development application in accordance with the State Act. On 23 May 1985, the Bellingen Shire Council gave its consent to the development application subject to a number of conditions which it is unnecessary to set out.

6. In the ensuing months the applicant proceeded with its preparations for taking up the licence.

7. The group of people calling themselves "The Save Our Scenery Committee", whom the first respondent represents, first became aware of the applicant's development application on or before 20 March 1985. A number of articles appeared in the local newspaper on that date protesting against the erection of the radio transmitter towers. On 3 October 1985, the first respondent commenced proceedings in the Land and Environment Court of New South Wales. In substance, the first respondent challenged the determination of the Bellingen Shire Council with respect to the erection of the radio transmitter towers and associated structures on the ground that inadequate consideration had been given to the effect which the towers and structures would have on the environment and further, that the Council had failed to consider objectively the matters in s.90(1) of the State Act before granting its consent. The applicant filed a notice of motion on 11 October 1985 in which it sought a declaration that the Land and Environment Court had no jurisdiction to hear and determine the proceedings by reason of inconsistency between the State Act and the Commonwealth Act.

8. We turn now to the relevant legislation. The Commonwealth Act was substantially amended by Act No.66 of 1985 which came into operation on 1 January 1986. This case, however, falls to be decided under the former legislation and it is convenient to speak of the Act as it was in the present tense.

9. Section 6A(1) of the Commonwealth Act in effect prohibits, without reasonable excuse, the operation of a radiocommunications transmitter for the purpose of the transmission to the general public of broadcasting programs or television programs except as authorized by or under the Act. The relevant licensing provisions are contained in Part IIIB of the Act. Under s.81 the Tribunal may grant a licence in the form and upon such conditions as it determines having regard to the need for the commercial viability of the broadcasting and television stations in the area served or to be served under the licence. Before a licence is granted, the Minister, by a notice published in the Commonwealth of Australia Gazette and a newspaper, is required to set out the proposed specifications which are to attach to the licence and interested persons are invited to submit applications. Upon making an application, the applicant may present written submissions to the Tribunal and may reply to the submissions of other applicants within the time limits laid down by the Act: s.82. Section 83 deals with the holding of an inquiry by the Tribunal or, in the absence of such inquiry, the preparation of a report regarding the grant of the licence. By s.83(5), an applicant is required to give a written undertaking that, if the licence is granted to him, he will:
"(a) comply with the conditions of the licence; and
(b) ... (i) provide an adequate and comprehensive

service in pursuance of the licence, having regard to - (A) the nature of the community to be served in pursuance of the licence;

(B) the diversity of the interests of that community; and

(C) the nature of the other broadcasting and television services (if any) of which satisfactory reception is being obtained by that community; and

(ii) encourage the provision of programs

wholly or substantially produced in Australia and use, and encourage the use of, Australian creative resources in and in connection with the provision of programs".

Section 83(6) provides that the Tribunal shall not refuse to grant a licence unless certain matters enumerated therein are satisfied. It is to be observed, however, that no reference is made to any environmental considerations.

10. Before the licence is granted, the Minister is obliged to determine the specifications applicable to the licence: s.84(1). "Specification" is defined in s.80(1) to mean a specification of the nature and purpose of the service to be provided under the licence, the area in which the service is to be provided, the design, installation and maintenance of the technical equipment to be used in the commercial broadcasting station, and the manner of operation of and persons competent to operate such equipment. The siting, operating power and frequency of the commercial broadcasting station may also be specified. See ss.93, 94, 95 and 96. Finally, the Minister may specify any of the matters which fall within his responsibility under s.111C of the Act, being matters directly concerned with the provision of high standard and quality broadcasting and television services throughout Australia. Section 111D confers wide discretion on the Minister in discharging his responsibilities under s.111C.

11. Upon the grant of a licence, the specifications become conditions of the licence together with such other conditions as the Tribunal may impose: s.84(2). The conditions may be varied or revoked during the currency of a licence or further conditions may be imposed: s.85(1).

12. Under s.88, the Tribunal may suspend or revoke a licence where it is advisable in the public interest to do so having regard only to such matters as the failure to comply with the undertaking given under s.83(5), that the applicant is not a fit and proper person to hold the licence or lacks the necessary financial, technical and management capabilities to operate the broadcasting station, that a condition of the licence has not been complied with or the failure to pay certain prescribed fees. Contravention of or failure to comply with a provision of the Act or regulations or a licence condition is also an offence under the Act and the licensee is liable to a pecuniary penalty: s.132. The provisions of the Act and regulations, so far as they are applicable to the licence, are deemed to be incorporated as terms and conditions of the licence: s.129.

13. The State Act is concerned with the encouragement of conservation, land development and environmental protection. See s.5. It provides for the preparation of a draft State environmental planning policy and two types of environmental plans, regional and local. An environmental planning instrument which embodies either type of plan may provide that any development within its specified parameters shall not be carried out without the consent of the relevant consent authority: s.76(2). The consent authority includes the local council: s.4(1). The word "development" is defined to mean, inter alia, the erection of a building on land and the use of the building or land. "Building" is in turn defined to include a structure or a part of a structure: s.4(1). A development application may be made to the consent authority by the owner, or a person with the written consent of the owner, of the land to which the application relates: s.77(1).

14. The environmental planning instrument may also provide that a development application shall not be determined without the concurrence of a Minister to the development specified in the application: s.78. In this regard, it is to be noted that s.4(1)(a) of the Height of Buildings Act, which is deemed under s.4(2) to be a provision of an environmental planning instrument, requires the concurrence of the Minister to the erection of a building of a height greater than 25 metres. The transmitter towers are buildings within the meaning of this Act. The Minister may impose such conditions as he thinks fit in granting his concurrence: s.4(5).

15. Under s.90(1) of the State Act, the consent authority is obliged to take into account any of the factors set out in pars (a) to (s) of that sub-section that are relevant to the development application before it. Paragraph (e) speaks of "the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of that development". The consent to an application may be granted unconditionally or subject to conditions: s.91(1). An applicant who is dissatisfied with the determination of a consent authority, and a person who objects to the granting of consent may appeal, subject to compliance with certain time limits, to the Land and Environment Court: ss.97 and 98. A contravention of or failure to comply with an environmental planning instrument, a consent, or a condition subject to which the consent was granted, is an offence against the State Act and incurs a penalty: ss.125 and 126. It may also give rise to proceedings in the Land and Environment Court for an order to remedy or restrain the contravention: s.123. That Court is established by the Land and Environment Court Act.

16. The primary submission advanced for the applicant was that the scheme established by the Commonwealth Act reflects a legislative intention completely, exhaustively and conclusively to state the law with respect to the provision of radio broadcasting services throughout Australia. The alleged inconsistency arises by reason of the controls placed on development by the State legislation. A broadcasting service might be authorized by a licence granted under the Commonwealth Act and yet that authority might be frustrated or denied by the State Act which, if valid, could prevent the erection of the transmission towers and necessary supporting facilities.

17. Counsel for the applicant attempted to develop an alternative submission to the effect that, even if the Commonwealth Act fell short of evincing an intention to cover the field, there was direct inconsistency in the present case in that the licence granted to the applicant identified the particular location and height of the transmission towers thereby giving those features the authority of paramount Commonwealth legislative power. It was said that neither the State Act nor the Height of Buildings Act could furnish any basis for challenging that positive authority.

18. Despite the attempt to rely on both limbs of the inconsistency principle, we think that in the circumstances of this case there is only one question to be determined. That question is directed to the nature of the rights conferred and obligations imposed upon the grantee of a licence under the Commonwealth Act.

19. In Ansett Transport Industries (Operations) Pty. Ltd. v. Wardley (1980) 142 CLR 237, Mason J. discussed the relevant principle at p 260:
"If, according to the true construction of the
Commonwealth law, the right is absolute, then it inevitably follows that the right is intended to prevail to the exclusion of any other law. A State law which takes away the right is inconsistent because it is in conflict with the absolute right and because the Commonwealth law relevantly occupies the field. So also with a Commonwealth law that grants a permission by way of positive authority. The Commonwealth legislative intention which sustains the conclusion that the permission is granted by way of positive authority also sustains the conclusion that the positive authority was to take effect to the exclusion of any other law. Again it produces inconsistency on both grounds: cf. Airlines of New South Wales Pty. Ltd. v. New South Wales (No. 2) (1965) 113 CLR 54, where the permission for which Commonwealth law provided was neither absolute nor comprehensive". In the present case, our construction of the Commonwealth Act leads us to conclude that it does not purport to state exclusively or exhaustively the law with which the operation of a commercial broadcasting station must comply. The Act prohibits broadcasting without a licence. The prohibition is removed upon the grant of a licence, subject to certain conditions. Failure to comply with the conditions may result in a revocation or suspension of the licence thereby reinstating the prohibition. The licence confers on the grantee a permission to broadcast. There is nothing in the Act which suggests that it confers an absolute right or positive authority to broadcast so that the grantee, because he has a licence, is immune or exempt from compliance with State laws. On the contrary, in concentrating on the technical efficiency and quality of broadcasting services, the Act leaves room for the operation of laws, both State and Commonwealth, dealing with other matters relevant to the operation of such services. For example, the applicant was required to obtain, as it in fact did before the issue of the licence, the consent of the Department of Aviation to the erection of two radio antennas, subject to conditions relating to marking and lighting under reg.92 of the Air Navigation Regulations. Another example is the purchase or lease of the land, upon which the broadcasting station is to be built, in accordance with State property laws. So also is the obtaining of development consent pursuant to the State Act for the building and use of the broadcasting station.

20. In Airlines of N.S.W. Pty. Ltd. v. New South Wales (1964) 113 CLR 1, the issue before the Court was whether the provisions of the State Transport (Co-ordination) Act 1931 (N.S.W.), as amended, relating to the licensing of aircraft operating solely within New South Wales, were inconsistent with provisions of the Air Navigation Act 1920 (Cth), as amended. The combined effect of both statutes was to require an operator of an intrastate airline service which operated partly within "controlled airspace", as defined in the latter Act, to obtain licences under both Acts. The Court unanimously held that there was no inconsistency between the two statutes since each employed a licensing system to serve a different end. The Air Navigation Act was concerned with the safety, regularity and efficiency of the flight of aircraft in air transport operations, while the State Transport (Co-ordination) Act focussed on the economic control of the transport for reward of passengers and cargo within the State. Windeyer J. at p.52 concluded:
"The combined results constitute a generally
uniform law governing air navigation throughout Australia, based upon a system of complementary and reciprocal enactments". See also at p.42 per Taylor J. and at p.48 per Menzies J.

21. The intention of the Commonwealth Act is to maintain the provision of high quality and technically efficient broadcasting services which are commercially viable and receptive to the needs of the community. It does so by the prohibition of broadcasting except under licence granted subject to certain conditions. But the relaxation of the prohibition by the granting of a licence does not confer an immunity from other laws, Commonwealth or State. The Act does not purport to lay down the whole legislative framework within which the activity of broadcasting is to be carried on. It is intended to operate within the setting of other laws with which the grantee of a licence will be required to comply. A useful example, which is specifically recognized by the Act in s.124, is the law of defamation, but, as we have recognized earlier, many other examples spring readily to mind. In the words of Dixon J. in Ex parte McLean (1930) 43 CLR 472, at p 483, the Act was intended to be "supplementary to or cumulative upon State law".

22. The applicant sought to rely on s.132(1) of the Commonwealth Act, with particular reference to the direction in s.89C of the same Act that:
"The holder of a licence shall commence the service
in pursuance of the licence on such date as is determined by the Tribunal". Section 132(1) reads as follows:

"Any person who contravenes, or fails to

comply with, any provision of this Act or the regulations, or any condition of a licence granted or deemed to have been granted under this Act, or fails to comply with a direction under the regulations, unless otherwise provided by this Act, is guilty of an offence against this Act by virtue of this section".

The argument is that the Parliament could not have intended to allow the State Act to operate so as to prevent a licensee from complying with s.89C and so expose it to prosecution under s.132(1). However, despite the breadth of its language, we do not think that s.132(1) makes a criminal offence of a mere failure to institute the service on the date determined by the Tribunal. The primary function of s.89C is to emphasize that it is the role of the Tribunal to determine the date from which the licensee will be freed from the prohibition contained in s.6A. It would indeed be surprising if an inability, for whatever reason of law or circumstance, to take advantage of the lifting of that prohibition constituted an offence under the Act. It may, of course, constitute a breach of the undertaking to "provide an adequate and comprehensive service in pursuance of the licence": s.83(5)(b)(i). By virtue of s.88(1) of the Act, such a breach may result in a suspension or revocation of the licence. But in our opinion, s.132 is directed to acts or omissions which relate to the actual carrying on of the broadcasting service.

23. If a local council withholds its consent to a development application made under the State Act, the grantee of a licence under the Commonwealth Act may be unable to exercise the authority conferred by the licence. However, the fact that the combined operation of two laws, each of which deals with a different topic, may create a situation of deadlock does not give rise to inconsistency. See Airlines of N.S.W. Pty. Ltd. v. New South Wales (No. 2) (1965) 113 CLR 54, at p 121 per Kitto J., p 144 per Menzies J. and p 168 per Owen J. A resolution of the difficulty may be found in particular instances in the variation of a licence condition pursuant to s.85 of the Commonwealth Act, but even if this cannot be done, the result is at most one of inconvenience rather than inconsistency.

24. In our view there is no inconsistency between the relevant provisions of the Commonwealth Act and the State legislation and the question removed into this Court should be answered in the negative.

Orders

Answer the question in the cause removed under s.40(1) of the Judiciary Act as follows:
Whether there is an inconsistency between the Broadcasting and Television Act 1942 (Cth), as amended, and such of the provisions of the Environmental Planning and Assessment Act 1979 (N.S.W.), as amended, the Height of Buildings Act 1912 (N.S.W.), as amended, and the Land and Environment Court Act 1979 (N.S.W.), as amended, as are relevant to the proceedings.
Answer: No.

Order that so much of the cause as was removed into this Court be remitted to the Land and Environment Court of New South Wales.

Order that the applicant pay the cost of proceedings in this Court.