Communications, Application for writ against Minister. Ex Parte NBN Ltd

CATCHWORDS

Administrative la W - application for writ of mandamus against the

application for a supplementary television licence -

Minister for Communications - duty of Minister to consider

applicant - whether full disclosure of all relevant matters by	discretionary factors - whether unwarrantable delay by the
the applicant when applying for order nisi - whether proposed	legislative changes would render relief futile.
Administrative De	cisions (Judicial Review) Act 1977
Broadcastina and	Television Act 1942, ss.82A, 87(3), 98(c)
Broadcastina and	Television Amendment Act 1985, s.98(c)
Judiciarv A	ct 1903, s.39B

APPLICATION FOR A WRIT OF HANDAMUS AGAINST THE MINISTER FOR

COWNICATIONS. Ex PARTE NBN LI-

NO. G 379 OF 1986

BOWON C.J.

2 December 1986

Sydney.

IN THE FEDERAt COURT OF AUSTRALIA 1

SOUTH WALES DISTRICT REGISTRY )

No. G379 of 1986

SiJERAL DIVISION

Application

for

writ

of mandamus

MINISTER

against

the

FOR

~OMMUNICATIONS

Respondent

Ex parte NBN LIMITED

Prosecutor

JUDGE MAKING ORDER:	B m n C.J.
PLACE:	Sydney
!XE:	2 December 1986
MINUTE OF ORDER
'$HE COURT ORDERS THAT:

The order nisi for

a writ of mandamus be made absolute.

The Minister

for

Communications

pay

to NEN

Limited

its

costs of the application to date.

3. The operation of this order be suspended for a period of 14 days with liberty to either party to apply to this

Court in the meantime

for further order.

Note:

Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules

IN THE FEDERAC C

OURT OF AUSTRALIA 1

NEW SOUTH U S

ISTRICT REGISTRY )

No. G379 of 1986

GENERAL DIVISION

ADDliCatiOn for

writ

mandamus

~~~

against the MINISTER FOR

COMMUNICATIONS

Respondent

Q parte NBN LIMITED

Prosecutor

RERSONS FOR JUWMENT

B O W C.J.

On the 2nd September 1986

an order was made by a Judge

of this Court that the Minister for Communications appear on the 13th September 1986 to show came why a writ of mandamus should not be issued directifjg him to deal with *the application by NBN Limited, the prosecutor, for a supplementary television licence in accordance with sub-section 82A(4) of the Broadcastins and Television Act 1942 ("the Act"). The matter is before me on the

return of that order and the question is whether it should be

made absolute or discharged.

NBN Limited is the holder of a licence for a

commercial

televieion station within the meaning of Part IIIB of the Act. This licence was for a period of three years ending on the 31st

October 1986. It

is common ground between the parties that

application for

renewal

this

licence was made and is

currently under consideration by the Australian Broadcasting

Tribunal and that it continues in force while the application for

renewal is still pending

(see sub-section 87(3)).

On the 20th September 1984 NBN Limited lodged with the Minister, in accordance with

a form

approved

him,

application for a supplementary television licence

under

sub-section 82A(2) of the Act. The relevant	provision	of
sub-section 82A(2) is as follows:

"82A. ( 2 ) The holder of a licence for a commercial

television station or a consortium each member of which is the holder of such a licence may lodge with the Minister, in accordance with a form approved by the Minister, an application for the grant of a

licence for a television service, for the purpose

serving, by means of one television station and, if necessary, one or more television translator stations, an area the specification of which is to be

determined by the Minister in accordance with

sub-sections ( 7 ) and (8).

Sub-section 82A(4 ) is as follows:

" ( 4 ) Where an

application (other than an

application

to which

sub-section ( 5 )

applies) is lodged under

sub-sections (1) or

( 2 1 , the Minister may -

(a)

refer the application to the Tribunal, together

with a notice in writing setting out -

(1) the specification of the area determined by

the Minister to be served in pursuance of

the supplementary licence;

(ii) an outline of the other specifications to

which it

is proposed the supplementary

licence, is to be subject; or

(b)

dismiss the application for a reason relating to technical matters or to the planning or development of broadcasting and television services.

It is claimed by NBN Limited that the Minister

has a

duty under sub-section 82A(4) to deal with the application in the way set out in paragraph (a) or (b) of that sub-section; that NBN Limited has requested the Minister so to deal with the application but the Minister has refused to make a decision under sub-section 82A(4).

It was pointed out

by counsel for the prosecutor that,

although the Act had been amended from time to time since the application was lodged, the Act continued to apply to NBN

Limited’s application by

virtue of paragraph 98(c) of the

Broadcastinq and Television Amendment Act 1985.

Briefly, the claim put by

counsel on behalf of NBN

Limited is that there

was a duty resting upon the Minister under

sub-section 82At4); that

NEN Limited has the right to have that

duty performed; that

there is no appropriate way of enforcing the

performance of that duty other than by mandamus; that a demand has been made to t e.:Minister to perform that duty and he has, in effect, refused to do so; and, finally, that the obligation resting on the Minister is not a matter of discretion on his part

but an obligation which he

is bound to perform.

The evidence is that NBN Limited wrote to the Minister by letter dated 14th August 1986 requesting him to deal with the application in accordance with sub-section 82A(4) and asking him to respond to the request by Thursday 28th August 1986. In reply

a letter signed by the Minister's senior private secretary dated

25th August 1986 expressed thanks for the letter of 14th August

1986 and stated that the Minister had asked the Department "to

examine your concerns and he

will write in detail in

the

near

future". By communication dated 29th August 1986 from NBN Limited to the Minister the receipt of the letter of 25th August was acknowledged and it was stated NBN Limited "regards your failure to make a decision pursuant to sub-section 82A(4) as unreasonable

delay ... and gives notice that

it proposes to apply to the

Federal Court for an order of review in respect of your

failure

to make

decision".

No appliation under the Administrative

&cisions (Judicial Review) Act wae made in respect

of the

decision but

the

application

for an

order nisi was made in

reliance upon the jurisdiction conferred on the Federal Court by

s.39B of the &+&Lciarv

Act 1903.

It appears from

a Ministerial press release dated 2nd

October 1984 that

when

it became

possible to apply

for

supplementary television and r A i o licences exactly 100 formal applications had been received by the cut off date of the 20th

September 1984. So far as applications

for

supplementary

television licences are concerned the evidence indicates that one

only of these proceeded to any significant degree. This was

application for a Canberra commercial supplementary

television

licence. According to a Ministerial press release dated 29th November 1984 this application by Capital 7 was the first for a

supplementary licence referred

to the

Australian Broadcasting

Tribunal for decision. He indicated his Department was processing a large number of applications and a steady stream of them would now begin flowing to the Tribunal It was said the Australian Broadcasting Tribunal was expected to begin hearing the Capital 7 application in February. In February 1985 the Australian Broadcasting Tribunal put in train the procedures for dealing with that particular reference. It published notices required under sub-section 82A(9) in respect of the application. It began to hold the inquiry referred to on the 18th July 1985 and the

inquiry continued on the

19th July, the 2nd to 11th October 1985

and 13th to 20th February 1986. On the 19th June 1986 the

Tribunal announced it had adjourned the inquiry.

No date was

fixed for its resumption. It appears the inquiry was befng held jointly with Inquiries into two applications for supplementary radio licences for the Canberra region. There were 8 parties to the joint inquiries one of which was the applicant for the supplementary television licence and another of which was a party

opposing the grant of	that licence and proposing an independent
television service.

Counsel for the Minister

did

not

put forward a

submission that there was no duty upon the Minister to deal with the application of NBN Limited in accordance with sub-section 82A(4) either by referring it or by dismissing it. He argued that it was unnecessary to approach this question since the application of NBN Limited to the Court should be dismissed upon

discretionary grounds. He relied upon three separate grounds

for

6 .

exercising the Court's discretion against NBN Limited. I do not deal with these in the order in which he submitted them but for convenience deal first vith his submission that NBN Limited's application to the Court should be dismissed on the ground of unwarrantable delay in applying for the remedy of mandamus (m

V Commonwealth Court of Conciliation and Arbitration; Q

t o n

(1949) 70 C.L.R. 309 at

p.400). Counsel pointed out that

as long ago as the 9th July 1985

the Minister by a press release had referred to a report received bearing the title "Future directions for commercial television" which was the work of the Forward Development Unit of his Department. Restricting exposition of this to the relevant portions it included the following statement:

The Minister said that pending Government decisio,ns

on the report no further applications for commercial television supplementary licences would be referred to the Australian Broadcasting Tribunal for inquiry.

"Despite the merits of individual applikations it does not seem sensible to refer any more applications to the Tribunal until the Government has given full

consideration to the FDU report	and	*reac-d**
decisions," Mr Duffy said.

Later in the statement occurs the following:

Mr Duffy said he was studying the FDU report with considerable interest and added that although he

expected the Government to make decisions at the

end

of the	year, he had no preferred	course	at	this
point.

7 .

It was common ground that NBN Limited was aware of

the

various statements issued by the Minister. Counsel for the Minister argued that because of the terms of the press release of the 9th July 1985 NBN Limited was a m r e that its application for

a supplementary licence would not be referred to the Tribunal for

inquiry and should at that point have applied €or a mandamus if It wished to do so. He argued there was unwarrantable delay in applying at this late time. In answer to this counsel for NBN Limited pointed out that the press release really went no further

than indicating that the Minister was studying the report

with

considerable interest and that

he expected the Government to make

decisions by the end of the year and that he had no preferred

courae at that point. In the circumstances it was reasonable

for

NBN Limited to hold its hand at that stage and see what occurred

by the end of the year. In my opinion the terms of the press

release of the 9th July 1985 would be insufficient on its own to lead me to conclude that there was unwarrantable delay in applying for mandamus. However, counsel for the Minister went on to point out that the actual decision by the Government not to proceed with the supplementary licence scheme was announced by press release issued by the Minister on the 29th May 1986. The

relevant portion of this press release states:

"The supplementary licence scheme for regional

commercial television is to be abandoned, but the Government is keeping its options open on the supplementary licence scheme for regional commercial

radio.

It was suggested that

NBN Limited could have moved for a

mandamus after this announcement should

it have been advised to

do so because it was

then plainly aware that the Minister would

not refer its application for

supplementary licence to

the

Tribunal because

the Government had abandoned that particular

scheme. There is a good deal of force in this contention. On the

other hand, application

for the Canberra supplementary television

licence had not been terminated at that time. Indeed

it was not

until 19th June 1986 that the

Tribunal dealt with this matter and

it then announced that it

had adjourned the inquiry. It did not

reject the application. In fact,

has

been indicated, NBN

Limited

applied

expressly

to the Minister

refer

its

application for

supplementary television licence by letter

dated

the

15th

August 1986 and in reply did not receive

statement that the Minister certainly would not refer

it; on the

contrary it was

informed by letter dated 25th August 1986 that

the Minister had asked his Department

to examine the Company's

concerns and offered

to write in detail in the near future.

Curiously, in the affidavit of the Director of the Legislation Section in the Minister's Department, Mr

John Robert

Doherty, sworn on the 25th September 1986

it is stated that:-

"On 25th

August 1986

I forwarded advance drafting

instructions to the said Office (office of Parliamentary Counsel) which included instructions to repeal all provisions in broadcasting legislation

applying only

to supplementary television licences

and to mend those

provsiions

applying

to both

supplementary radio and television licences

that

they apply only to supplementary radio

licences."

It will be noted that on the

very day that the

senior

private secretary of the Minister was informing NBN Limited that the Minister had asked the Department to examine their concerns

Mr Doherty had forwarded drafting instructions to amend the law

to repeal the provisions relating to supplementary television

licences. No suggestion was made that

the

senior

private

secretary of the Minister was aware that the Department had on that very day forwarded drafting instructions to Parliamentary Counsel to repeal the provisions but the letter of the 25th August 1986 is drafted somewhat in the form of a holding reply. In the event, after the 28th August 1986, NBN Limited treated it aa a refusal to refer and on this basis approached the Court for the order nisi which it obtained.

The question on this aspect of the matter is whether there was such unwarrantable delay in applying for the remedy of mandamus as would lead the Court to discharge the order nisi. I am not prepared to hold that there was such delay as should lead the Ccu-t to deny relief to NBN Limited operating from the time

of the early press release

dated

9th July 1985. However, delay

following the public announcement in the Minister's press release of the 20th Flay 1986 raises a serious question in my mind whether there followed unwarrantable delay on the part of the NBN Limited in making this application. Other cases have been referred to on

the question of delay but they

relate to circumstances so

different

that

they

are of

little

assistance.

Here was a

situation with discussion of government policy proceeding

from

10.

time to time, the Australian Broadcasting Tribunal dealing with

applications relating to

Canberra only

during the whole period

and it is difficult to arrive at a conclusion as to what times are reasonable or unreasonable in this area of human affairs. On the whole I have come to the conclusion that the delay which occurred after the 20th Hap 1986 was not so great that it should lead to relief being denied to NBN Limited if it was otherwise

found to be

entitled to relief.

The second ground of discretion on which it was argued

for the Minister that relief should be refused was the likelihood

of legislative change which would render the question of

referring the matter to the Australian Broadcasting Tribunal

academic and futile. In evidence I have a copy of the

Broadcastins hcndment SilL

1986 and the Explanatory Memorandum

circulated with the Bill.

This Bill provides in effect that the

supplementary television licence scheme would be abolished assuming the Bill way passed into law. The Bill appears to have been introduced into the House of Representatives on the 12th Novenber 1986. The copy of the Votes and Proceedings of the House of Representatives on the 12th November 1986 is in evidence. I note that the Bill was on that day read a first time, that the

Minister

moved

that the Bill then be

read a second

time,

presented the Ehplanatory

Memorandum,

that

the debate was

adjourned and that the

resumption of the debate was to be an

order of the day for the next day of sitting. I have a copy

the Votes and Proceedings of the House of Representatives of

the

11. l

17th November 1986 which shows that this Bill was dealt with. The Minister made a statement adding to his second reading speech and presented a paper by leave dealing with regional commercial television and debate took place. Also in evidence are the Votes and Proceedings of the on House of Representatives of the 18th November 1986 which indicate that the debate continued on that day and the second reading was passed, dealt with in committee

and finally, the committee's report having been adopted, the Bill was read a third time. The Journal of the Senate of the 20th November 1986 is in evidence. This shows that the Senate received from the House of Representatives the Bill and that the Bill was read a first and second time but the debate was adjourned to be an order of the day for the next day of sitting. I was informed from the Bar table that it was anticipated the debate on the second reading in the Senate would take place during the week following this hearing before me.

These facts raise a serious question whether the issue of mandamus against the Minister to perform a duty under sub-section 82A(4) either to refer the application to the Australian Broadcasting Tribunal or to dismiss it would be futile. Certainly it would be futile if the Senate passes the Bill and it is assented to and comes into force. However, it was argued on behalf of NBN Limited that it was not for the Court to speculate on the future progress of this legislation. It had to apply the law as it stood at the time the Court was considering the matter. Reference was made to the remarks of Starke J,

12. 1

dissenting, in Pamsay v JLberfovle Manufacturinu CO (Australia) Ptv Limited (1935) 54 C.L.R. 236 at pp.253-254. As against this It was argued by counsel for the Minister that Mr Justice Rich, who was one of the majority, in the same case at p.244 was in effect expressing a different view. I do not think it is necessary to come to a conclusion on that particular matter. I

would merely

state that in general terms I agree with the

proposition that the Court applies the law as it is in force when a matter is before the Court and in general does not speculate as

to the future course of legislation. On

the other hand, when

exercising a discretion upon an application €or a prerogative writ or any type of discretionary relief where legislation is

actually in progress the Court is not obliged to shut its eyes

the realities and to ignore what is taking place. The Court may

at least take into consideration the facts as

they are proved to

exist at the time that it is

considering the exercise of such a

discretion. But even

when

I adopt that position

raises a

difficult

question. The Court

reluctant

to engage in a

futility but, on the other hand, it is the only

avenue open to a

person whose existing rights are being adversely affected

to have

them protected against

action at least not yet

authorised by law.

I will return to this question after dealing with the third matter raised by counsel for the Minister on the question of discretion.

It was submitted that when NBN Limited applied €or

the

order nisi, which it did in reliance on an affidavit sworn by

13.

Joseph Ronald Sweeney dated 1st September 1986, it was under

duty to disclose to the Court all relevant matters and did

not do

so. The matter omitted was said to be the Minister's press

release dated 9th July 1985, the relevant portions

of which have

already been quoted. It was argued that had that press release been disclosed on that occasion the Judge would have refused to grant the order nisi on the ground of unwarrantable delay. I have already indicated my view that having regard to the qualified terms of the press release I would not regard it as a relevant piece of evidence in the sense of being decisive on the question of unwarrantable delay on the part of NBN Limited. The failure to disclose it is not, in my view, a matter which should lead to a refusal to grant a writ of mandamus on discretionary grounds of non-disclosure.

Returning to the main issue,

which is whether the making

of the order for writ of mandamus would be a futility in the present case, I think this a matter of considerable difficulty.

One matter which has been pointed out to me by counsel f o r NBN

Limited is that all

the legislative steps which are in

evidence

and to which I have referred have been taken since NBN Limited's letter of the 14th August 1986. Indeed, all of those steps have been taken since the 2nd September 1986 when the order nisi was

granted. In

my opinion, NBN Limited is entitled to

have its

rights considered basically as they stood when it commenced its

proceedings on the 2nd September 1986 although no doubt if the

law is changed subsequently by the passing and bringing into

14.

operation of an Act of Parliament this would certainly affect the

course which the Court would take.

In this unusual situation

I have come to the conclusion

that NBN Limited has made

out

a case of

breach of duty on the

part of the Minister under sub-section 82A(4)

of the Act and that

it is not

at this stage excluded by discretionary grounds from

having the order nisi made

absolute. I have considered whether I

should stand the matter over to see what action is taken by the Senate or whether the Bill goes in its present form to the

Governor-General and is brought Into

law. It

appears to me the

prosecutor is entitled to have an answer from the Court but

I am

not prepared to give an answer which

may result in a

futility.

Accordingly, I propose to make an order that the

order nisi for a

writ of mandamus be made absolute and that NBN Limited be

paid

its costs of

the application to date by

the respondent. But

will make a

further order that the operation

of this order be

suspended for a period of 14 days with

liberty to either party to

apply to this Court

in the meantime for further

order.

I cert i fy that th i s and tho

htr teen 0%)

precedlnr: p x e s are a true copy o f the

R ~ L I S V I ~ S

fer Juccn..:rlt hcre ln cf hls H u w ~ r

theChiefJud~:a,SlrNlgelBonen

[1986] FCA 560

12 Feb 1986