Deputy Commissioner of Taxation v Boxshall

[1988] FCA 355

C A T C H W O R D S

BROADCASTING - declsion of area served by licensee - competing

applicants - relevance of public interest.

ADMINISTRATIVE LAW - criterla for exerclse of discretion -

implicit that publlc Interest be consldered	- abuse of power
constltuted by inconsistent appllcatlon	of guideline.

Administrative Declslons (Judlcial Review)	Act 1977, s.5(2)(j)
Broadcastlnq Act 1942, ss.80(1), 85(4)
Sunshlne Coast Broadcasters Limited

v.   The Honourable Peter Duncan, Mlnlster for Land

Transport and Infrastructure SupDort & Anor

Qld G4 of	1 9 8 8
PINCUS J. BRISBANE

8 JULY 1 5 8 8

IN THE FEDERAL COURT OF AUSTRALIA )

PUEENSLAND DISTRICT REGISTRY ) QLD G4 of 1988

GENERAL DIVISION )

: - B SUNSHINE COAST BROADCASTERS LIMITED

Applicant

AND: THE HONOURABLE PETER DUNCAN, MINISTER FOR LAND

TRANSPORT AND INFRASTRUCTURE SUPPORT

First Respondent

AND:  THE AUSTRALIAN BROADCASTING TRIBUNAL

Second Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	8 JULY 1988
WHERE MADE:	BR I  S BANE
THE COURT ORDERS THAT:

1.	paragraph 1 of the	appllcatlon	be	amended	by
replacing "Sectlon	9 5 ( 5 ) of the	Broadcastlnq Act

1942" by "Sectlon 85(4) of the Broadcastlnq	Act
1942";

2 . the decislon of the flrst respondent made on 15

December 1987, the sub~ect	of thls appllcatlon, be
set aslde;

3 . the matter to which the declslon relates be

referred back to the	flrst respondent for further
conslderatlon;

4.    the first respondent pay the applicant's costs of and Incidental to the appllcation to be taxed.

NOTE:	Settlement and entry of orders 1s dealt wlth In Order 36 of the Federal Court Rules.
IN THE FEDEAAL COURT OF AUSTRALIA	)
OUEENSLAND DISTRICT REGISTRY	)  QLD G4 of 1988
GENERAL DIVISION	)

BETWEEN: SUNSHINE COAST BROADCASTERS LIMITED

Applicant

AND:  THE HONOURABLE PETER DUNCAN, MINISTER FOR LAND
TRANSPORT AND INFRASTRUCTURE SUPPORT

Flrst Respondent

AND: THE AUSTRALIAN BROADCASTING TRIBUNAL

Second Respondent

PINCUS J. 8 JULY 1988

REASONS FOR JUDGMENT

This is an applicatlon under the Admlnlstratlve

Declsions (Judicial Review) Act 1977 to review	a declsion of the
first respondent relatlng	to radlo broadcastlng.

Putting the matter broadly, what the flrst respondent

did was to dlrect appllcant's radio broadcasting llcence a definltlon of a	the	second	respondent	to	include	in the
service

area setting boundaries excluding the Caboolture shire;	It 1s that
exclusion whlch is the sub~ect	of the applicant's complalnt.

Caboolture is a town to the north of Brisbane and is the

centre of a shire of a largely rural character, but from which

many people commute to work in Brlsbane. The applicant's radio

statlon 1 s at Nambour, further north again.

There were nine stations mentioned In the material which

desired to have the shire included in their service	areas - eight
Brisbane stations and the applicant's provinclal station. All	of

them succeeded in havlng the shire lncluded except the appllcant.

It does not complaln	of	the other eight's having succeeded,	(a
decision made on	4 November	1987) but only of its	own excluslon.

However, since	that was done	on the basls that the applicant
should not be allowed to	have "this area	which is served by the

metropolltan statlons", as the first respondent put it, the case

necessarlly involves conslderation	of the posltlon of	all the
statlons.

The way In which the matter was placed before the first

respondent, who i s , of course, the responslble Munster,

concentrated attentlon upon the strength of the var1ous clalms to the area In questlon. It was declded In effect that there was no room in the shlre for the appllcant's servlce, and that the shlre

should be allocated exclusively to the Brlsbane stations.

Before comlng to the legal conslderatlons whlch arlse,

it should be polnted out that the result	ls,	from the point	of
view of the public	in the shire, an	odd one.	On the basls that
the primary llnks	of	most of the	residents (as commuters and

consumers) were to Brisbane rather than to	the north, they are to
be served by eight Brlsbane stations only.	The lnformation before

the Minister and	hls advisers demonstrated that many people	in the
shire desired to	have the services	of the applicant's station,

which, of course, was prepared to pay attention to local concerns;

thelr interests appear	to have been ignored.
Leqlslatlve Provislons

In the brief account of the nature of the dispute which

appears above, I have, for simplicity, written of the first

respondent's decision as involving a dispute as to whlch station

or stations should have or serve the area in question; that is the

way In which the Departmental documents treated the matter. It is

a questlon, however, whether	to discuss the declslon attacked in
those terms 1s legally accurate.	It is unclear what legal effect

should be attributed to the decislon.

All except one of the llcences referred to In these

proceedlnqs were granted before	1 January 1986.	On that date
there came into force those provlsions	of the	Broadcastinq and

Television Amendment Act 1985 (No. 66 of 1985) whlch are	relevant
to this case. The 1985 Act changed the tltle	of the prlnclpal Act
from "Broadcastinq and Televlslon Act 1942" to "Broadcastinq Act

1942" ( S . 3 ) . It also Introduced what was descrlbed by the

responsible Minister as a "servlce-based concept for planning and

licensing", the cornerstone	of which was said to be the service
area for a llcence.

The appllcant argued that the first respondent had not

applied this concept in maklng his decision. The idea of

service-based licences is reflected in some	of the	amendments
introduced by the 1985	Act, in particular by ~.83(5)(b)(l).	The
appllcant for the grant	of such	a llcence as is here in questlon
must, by that provision, undertake to "provide	an adequate	and

comprehensive service pursuant to the licence". The expression used, "adequate and comprehensive service", is in effect deflned by s . 4 ( 6 ) , whlch I do not think it necessary to set out.

If the provisions just alluded to were directly

relevant, some legal	questions	of lmportance would fall to	be
declded:	for example, although no provision expressly says	so,	it
may be implicit in one	or	other of them that	the obllgation to
provide an	adequate and comprehenslve service in respect	of	a

llcence havlng a defined service area necessarlly carrles with it
the rlght to be allowed to use equlpment whlch will fulfil that

obllgation.

In the sectlon appearlng below, headed "The Reasons",

there 1 s lncluded discusslon of a submlsslon made on behalf of the

first respondent as to the effect whlch should be glven to part of

the first respondent's stated reasons for the declslon attacked.

I there accept the first respondent's contentlon that reference to
the necessity for a	"translator" (belng an additional installation
of broadcasting equlpment) should not be treated	as being a ground

of re~ection of the appllcant's claim. The Importance of that

conclusion is that it makes It unnecessary to meet an argument,

based by the applicant on the first respondent's reference in the

reasons to a translator, that the flrst respondent had

a

misconceived the nature of hls	task, in failing to apply the	new
service-based concept.	In consequence, a full analysis	of or

setting out of the new (1985) provisions is unnecessary.

It should be added that the 1985 Act contained

transitional provisions which continued the application of the

"previous Act", generally speaklng, to "old system licences that

are in force ... on the commencement date . . . ' I That date was 1

January 1986.	The "previous Act" is defined in s.96(1) to mean
the "Princlpal Act	as in force immediately before the commencement

date". Section 99 empowered the Mlnlster to direct the Australlan

Broadcasting Tribunal substitution for a corresponding old system licence, whereupon the to grant a new system llcence in

become definition of "new system llcence" in s.96(1). subject to the amended Act: see the

licence would

As appears from what is wrltten below, prlor to the 1985

amendment the Act used the expresslon "area served" and provlded for deflnition of that area, wlthout saylng precisely what the

rlghts or obllgatlons relatlng to the area served were C O be. The

1985 amendment used and attached importance to the expression

"servlce areas". What is In Issue here is the former concept, not
the latter. However, ~t seems to	have been contemplated by the

first respondent that the process of deflnltion of "area served" would lead to a corresponding definition of "servlce area", after

conversion of old system llcences to new. That appears from the

facts that, for decision uses the expression "service area determlnations" and example, the letter giving reasons for the

that it rejects the applicant's claim on the basls of	guidelines
promulgated for determination of service areas.

The licence held by the applicant was issued on 5 August

1983 and related to	"a commercial broadcasting station situate	at
8 km east of Nambour, Queensland to	serve the Nambour area	...I'

The boundaries of that area were undefined. The declslon to which exceptlon is taken was made on 15 December 1987. By it, the first

respondent directed the Australlan Broadcasting Trlbunal -

' I . . . to revoke the existlng conditions relatmg to

matters referred to In the deflnitlon of

substitute the conditlons set out In the Schedule,	'specification' in sectlon 80(1) of the Act . . . and
in respect of the licence granted to Sunshlne Coast
Broadcasters Ltd for commercial broadcastlng
statlon 4SS at Nambour, Queensland."

The Schedule Included a paragraph (b) readlng as follows:

"the area served in pursuance of the llcence, in

terms of areas deflned by the Australian Bureau of

Statistics at the Census of 30 June 1981, shall be

the Local Government Areas of Landsborough and

Maroochy and Collectlon Distrlct numbers	... wlthln
the Local Government	Area of Noosa wlthln the state
of Queensland.

It is unnecessary to set out the numbers mentloned In the

schedule. The deflnltion of the areas served excluded the whole

of the shire of Caboolture.

There 1 s no provision whlch attaches a preclse legal

slgnlficance to the definition of the area served or service area.

The statute might have, for example, given the llcensee of a

I

defined area served or service area a right, absolute or

qualified, to use such	equipment	as would enable people in the
area to listen	to the licensee's radio service; it has not	done
so.

Section 85(4) of the old Act read as follows:

"Subject to sub-section (51 , the Minister may,

during the currency of a licence, by notlce in

writing, direct the Tribunal, as specifled in the

notice, to vary or revoke a condltlon of the

licence, or Impose a further condition, relatlng to

a matter	referred to in	the	definition	of
'speciflcatlon'	in	sub-section	80(1), and	the

Tribunal shall comply	with the directlon."
The word "speclflcatlon" was defined in	s.80(1), as far

as relevant, as follows:

"'speclflcation', In relation to a llcence, means a

speclflcation of any of the following matters -

...

(h) the area served In pursuance of the llcence;

. . .

It was under the old s . 8 5 ( 4 ) and under the part of the

definltion whlch	I have	just quoted that the flrst respondent
acted.

I have been somewhat troubled by the lack of

defined slgnificance, in a strlct legal sense, of the declslon

complained of. The first respondent did not urge me to dismiss

the application on that ground. The first respondent and his

advisers,	as	the documents lald before him show, treated the
decision as a	matter of moment, presumably	on the basis that It

was likely adversely to affect the position of the appllcant,	as
against that of the Brisbane stations, in the future.

The Minister Introducing the 1985 amending bill

descrlbed the

"service communltles which the licensee is authorlsed to serve". area" as being "the area contalnlng

He added:

"From the llcensing viewpoint, whether the

broadcasting service is delivered by means of one transmitter, or a combination of transmitters, wlll

be largely irrelevant. Emphasis will be placed

upon the nature and purpose of the llcenced service

and the nature and interests of the communlties in

the servlce area."

The decisions relatlng to the nlne statlons referred to

above were made looklng forward to	the appllcation of these	new
notlons.

It appears that those entltled to a partlcular servlce

area may perhaps be regarded as havlng, at least as a practlcal

matter, corresponding technologlcal entitlements - more

speclfically, as entitled to the authorised use	of such equipment
as 1 s necessary properly to serve the area.

I do not declde the case on the basls that it is certain

that any particular admlnlstrative result will ensue from the

decision attacked.	The inference which	should be drawn 1 s that
the exclusion from the applicant's service area	of	terrltory

included in the service	area	of other licensees	1s	llkely	to
diminish the satisfactorily recelved by cltizens of the	applicant's	prospects	of having	its	broadcasts

area in questlon, as

compared	with	the others' prospects. One must assume that any
attempt by the applicant to improve the quality	of reception	of

its broadcasts In the area in dlspute by use of addltlonal

broadcastlnq equipment would be reslsted, on the ground of the

decision which It attacks in these proceedlngs. On the other

hand, if one of the Brlsbane statlons having only a weak signal in

the shlre wished to lmprove that slgnal, presumably	it would have
more chance of belng allowed to	do so.
The Reasons

The declsion to which I have referred was explalned by

the first respondent	I n	a letter dated	18 December 1987 and
reading as follows.

"Thank you for your letter of 9 November 1987.

Further to my letter of 4 November 1987, about the

Servlce Area determlnatlons for the Srlsbane

metropolltan radlo statlons, I am now wrltlng to

advlse that I have determlned the Servlce Area for

the licence held by your company for commerclal

broadcastlnq statlon	4SS Nambour.
I regret to	advise that	I have not included the
Caboolture Shlre wlthln the	area	to be served by

4SS. The Service Area 15, In fact, Identical to

that shown ln the draft Servlce Area sent on 9 July

1987.

I see from your letter of 20 August 1987, that you are famlllar wlth the Guidellnes for Negotlating and Deflnlng Service Areas. I dld not feel that I could disregard the Guldellnes In this case as it would be unfalr to other licensees whose determlned

Servlce Areas were not In accordance	with	their
clams.

You will also know that the Guidelines state

'Service Areas will not be determlned to extend

significantly beyond the areas currently provided

with an adequate service, except where the

community or communitles included are not already

receivlng a service and are not withln the Servlce Area of another station'. A s I wrote in my previous letter, most of the metropolltan stations

were entltled, as stated on their licences, to

serve much of the Caboolture Shire, even before my

determination of thelr Service Areas. I believe

that it would not be approprlate to extend the area

served by 4SS into this area which 1 s served by the

metropolltan stations.	There is, I thlnk, general
agreement that the issue at stake was	an extenslon

of the area served by	4%.	Your company said, in
Its submission dated May	1987, that residents	now

llsten to Brlsbane commercial radio.

Addltlonally,	I note that the slgnal strength of
most metropolitan statlons	1s stronger than that of
4SS in much of the	Shlre (In partlcular, the town

of Caboolture). Unllke most of the metropolltan

stations, 4SS would need to establish a translator

to adequately serve the town and surroundlng

region.

While not denylnq that links do exist between Caboolture and the NambourISunshine Coast reglon,

there are also strong lmks between the Shlre and

Brisbane. You have noted that part of the shire

and the town of Caboolture ltself are Included

wlthin the Brlsbane Statistlcal Dlvlslon. On the

other hand, the Shlre of Caboolture 1s completely

excluded from the Sunshlne Coast Statistlcal

District.

I do not make these polnts slmply to crltlclse your

submlsslons, which are well presented and

researched. Rather, I wish to make clear the

reasons for my declslon to exclude Caboolcure from

the area to be served by 4.55.

Thank you again for brlnglng your concerns	to my
attentlon.

Both counsel argued, In effect, that the letter dld not

stand alone, but should be read In the llqht of certain other

documents placed before the flrst respondent. For the purposes of

the declslon, some reference 1s made to such documents below, but

it seems clear that, princlpally	at least, the declslon stands or
falls on the reasons set out	In the letter

Counsel for the first respondent analysed the letter as

consisting of an adjudlcation, a notation In respect of a

translator, and finally an acknowledgment; as to the second

element, counsel said the paragraph commenclng "Addltlonally"

noted the existence of a technologlcal fact. The point of his

describlng the paragraph about a translator as a "notation" was

that he was lncllned not to accept the submlsslon by the

applicant's counsel that the alleged necessity to establish a

translator was a reason for declsion.	The applicant argued that
the	material

in consideration had been taken into account and that the that paragraph proved that an irrelevant

area should

have been determmed on the basls of the matters mentloned in the

Ministerial statement quoted above.

It 1 s true that the letter does not say that the

appllcant should be refused the area ~t deslred because of the

alleged need to establlsh a translator, nor does I t say that the

establishment of a translator would cause any dlfflculty.

Nevertheless, one tends to assume, at flrst readlng, that the

reference to a translator was lntended to Imply an added

dlsadvantage of the appllcant's proposed service area; why the

translator was thought to be disadvantageous does not appear. Nor

does it seem that any Consideration was glven to the means whereby

the metropolitan statlons	wlth weak slgnals In the shlre would
serve the whole area.

There was a suggestlon in the documents that a

Ministerial statement argued against the use of translators in

I

this situation, ldentif ied. but no statement of a relevant klnd was

Not wlthout doubt, I have concluded that I should accept

the analysls of the letter put forward on behalf of the flrst

respondent.	That 15, I accept that the reference to	a translator
was merely a "notation" and	I will not treat It as implying a	view

on the part of the first respondent that the necessity for a

translator justified refusal of the appllcatlon.	The	applicant's
criticism of the "notation" becomes irrelevant.
On that legal valldlty of the reasons set out in the balance	basis, it	1s necessary to conslder only the

of the letter

- specifically, those In the third and fourth paragraphs.

It should be added, for the sake of completeness, that

the present weakness of the appllcant's signal In the Caboolture

shire is due to a "null" In a southerly direction, under a

condltlon of Its llcence, imposed In the interests of	preventlnq
interference wlth the slgnal of a Vlctorlan statlon.
Public Interest

This point is ralsed In grounds (l)(a)(ll) and

(l)(c)(ll) of the application.

The statute gives no express lndlcation of the crlterla

by whlch the Minister should make his decislon as to the area

served. The case is therefore one in whlch the dictum of Deane J.

.. 13.

t

In Sean Investments Ptv Ltd v. MacKellar (1981) 38 A.L.R. 363 at p.375 is appllcable.

“In a case such as the present, where relevant

conslderations are not speclfied, It is largely for

the decision-maker, in the light of matters placed

before him by the parties, to determlne which
matters he regards as relevant and the comparative

lmportance to be accorded to matters whlch he so

regards. The ground of failure to take into

account a relevant consideratlon wlll only be made

good If it is shown that the decision-maker has

failed to take m t o account a consideratlon which

he was, m the circumstances, bound to take into

account for there to be a valid exercise of the

power to decide. ‘I

That was approved in Mlnlster for Aboriqinal Affalrs Peko-Wallsend Llmlted (1985-86) 162 C.L.R. 24 at p.39 per Mason J. His Honour also polnted out (pp.39-40) that lf the relevant	v.
factors whlch	a decislon maker 1 s bound to conslder -

‘ I . . . are not expressly stated, they must be

determlned by lmpllcatlon from the sub~ect-matter,

scope and purpose of the Act.”

As to the necesslty of conslderlng the publlc Interest

in exerclslng dlscretlons, I refer to Bromlev London Boroush

Council v. Greater London Council C19833 1 A.C. 768, at p.853E.

One of the easler impllcatlons to make 1 s that whlch was

made in

Kevin Attorney-General (Cth) (1987) 72 A.L.R. 679 at 688: R. Whelpton & Associates (Aut.) Pty Ltd v.

“Furthermore, the section being lncluded In an Act,

a major purpose of which is to protect the publlc

Interest, it would appear that the Attorney-General

is required to consider whether It would be

I

reasonable or unreasonable to grant the application

from the point of view of the public interest."

The same reasoning applies here: it goes wlthout saying that a

purpose of the broadcasting legislatlon is not merely to attend to

and reconcile the competing interests of broadcasters, but also,

and perhaps primarily, to have regard to the interests of the

general publlc. That section of the public whose interests were In question here was the population of the Caboolture shire, and

it seems evident enough that one of the interests to be consldered

was the interest of those cltlzens, as the actual and potential

audlence of the applicant's radlo statlon.

The consideratlons bearlng upon that polnt were simple

enough. The shlre residents already had, by the flrst

respondent's recent decision, whatever advantage was to be gained

by the incluslon of the shlre in the servlce areas of all the

metropolltan stations. The question was whether they should also

have whatever addltlonal advantage might be derlved from thelr

incluslon In the servlce area of the appllcant's station.

That they had a real interest to be protected and

consldered in the respect just mentioned	was,	on the materlal
before the flrst respondent, clear.	It disclosed that very	few

business people in Caboolture used Brisbane radlo stations for

advertislng. Presumably busmesses in outlylng areas could rarely

afford the residents of a clty, most of whom could costs of dissemlnatlon of their message to the

have no posslble interest

in business at Caboolture. The documents before him also

disclosed that many business people, as well as community and

sporting organisations, wlshed to have the services of a

non-metropolitan station to publicise thelr activltles.

More respondent disclosed that there generally, the informatlon before the first

was a considerable amount of local

support from community leaders and others for the applicant's

case; as an example, the present Premler of Queensland, who

represents the Landsborough electorate, indicated	hls support and
explained in detail the reasons for it.	Further, ~t appeared that

the ma~orlty of governmental organlsations surveyed did not

service the shlre from Brisbane, but from extra-metropolitan

centres such as Nambour.

It has to be said that the strength of the material lust

mentioned did not appear as clearly as It mlght have done from the

discussion of it placed before the first respondent by hls

advisers, but even If the first respondent had no such material,

the likelihood that many people In such a shire would be llkely to

recelve and support an audlble servlce from a provlnclal station

concerned wlth local interests must have been obvious. In

contrast, It must have been equally obvlous that metropolltan

unllkely particular attention to the every-day affalrs to broadcast materla1 paying

stations would be

of and events in the

Caboolture shire,	a matter	of no Interest to the vast bulk of
their audlence.

The flrst respondent's letter to the appllcant was, with

respect, drawn as if the problem was to determme the strength of

the competing claims to the shlre. There is not a word about the advantages which mlght accrue to the public in the shire from its lnclusion within the service area of the applicant, nor, indeed,

any disadvantage to them flowing from that course.

If one looks beyond the Minister's letter, and into the

material underlying It, the impression created by the letter is

not weakened. For example, In a minute of 20 October 1987 sent to

the first respondent by a departmental officlal, the wrlter

remarked that ' I . . . the Department believes that the metropolitan licensees have stronger clalms to serve the Caboolture area than

does 4SS ...'I It was that mlnute, slgned by the first respondent,

whlch recommended lnclusion of the	shire in the servlce areas of
all the metropolitan statlons.

In a minute sent to the flrst respondent relatlnq to the

declslon presently before me, lt was remarked:

"In developlng this and every other recommended

Servlce Area, the Department has trled to malntain rather than redress the commerclal balance between

statlons. "

Agaln, the polnt was not one of trylng to malntain or lmprove the

interests of the members of the publlc affected by the declslon.

It 1 s impossible to belleve that Parllament intended

this power to be used in such a fashion. The splrit in whlch this

exerclse was approached was foreshadowed at a meeting about

service areas held on 21 March 1986 between Departmental offlcers

and representatives of	Brisbane commercial statlons, at which a
process described as "negotiation" went on. After dlscusslon	of,
inter alia, the area	here in Issue, someone raised the questlon,
"What if there is	a stalemate?" and a Departmental officer sald,
in effect, that the Mlnister could then make	a declslon or refer

the matter to the Australian Broadcasting Tribunal, the latter

course being unlikely. It is my opinion that in giving power to

define areas to be served, Parliament must have intended more than

that an attempt would be made to reconclle, by negotlatlon or as a last resort by declslon, the confllcting clams of those derlving Income from the services. It was necessarlly Implicit In the

grant of power that the Interests of the public affected by such a

decision would be a major, and perhaps the prlmary, conslderatlon.

Those Interests were mentloned at that meeting, but	In	the end
overlooked.

There was no stalemate; the Brlsbane stations agreed

they should all have the Caboolture shlre.

Abuse of Power

It was put by Mr Douglas for the appllcant that the

declslon attacked meaning of s.5(2)(j) of the Judiclal Renew Act, in that tnere was
unfairness in a certaln sense. constltuted an abuse of power, wlthln the

The unfalrness complained of was, in essence, that the

first	respondent had applied against the appllcant a guldeline
which was equally applicable to	competmg appllcants agalnst whom
it was not applied,	no reason for thls discrimination appearing or
being given.

Before expounding that point further, it is necessary to

refer to the authorlties which were relied on.

Mr Douglas referred to H.T.V. Ltd v. Prlce Commisslon

C19761 I.C.R. 170, an English case concernlng broadcasting, where

a complalnt of lnconsistent conduct was upheld. There the

plaintiff's complaint compared, not the treatment of one citizen

as compared with that of another, but current treatment with

former treatment. Lord Dennlng M.R., speaklng of the Exchequer

levy which was In Issue, said at p.185:

"I see no warrant whatever for treatlng It

differently after July 1974 from before. Yet that

1 s what the Prlce Commlssion seek to do.

Can they be permltted to do It? I do not thlnk s o .

It is, m my oplnlon, the duty of the Prlce

Commlssion to act	wlth fairness and conslstency In
their deallngs with manufacturers and traders.	...
It is a misuse of	power for It to act unfalrly or
unjustly towards a prlvate cltlzen when there	1 s no
overridlng public Interest to warrant it."

Scarman L.J. (as he then was) referred at pp.189 and 192

to the duty of admlnistratlve agencles to act fairly and the

Court's power to redress unfairness.

The idea that an unfalr exerclse of power may be an

abuse recurred in m.	v. Inland Revenue Commissioners; Ex	parte
National Federation	of	Self-Employed and Small Businesses Ltd.

C19827 A.C. 617 at p.637 (per Lord Diplock) and p.651 (per Lord

Scarman). It was also accepted in m. v. Inland Revenue

Commissioners; Ex parte Preston C1985J A.C. 835 at pp.864-867,

where the H.T.V. case was referred to with approval and explamed by Lord Templeman as an Instance In which the unfalrness was due

'I... to an error of law whereby the Price Cornmlssion misconstrued

the code they were intendmq to enforce".

Further, in the Bromley case (above) at pp.815, 829 and

853, reference is made to the necessity, I n exerclsing

administrative	discretions, of fairly	balancing	confllctinq
interests.

There 1 s a questlon whether these authoritles should be

followed, in deallnq with alleqatlons of abuse of power under the

Judlclal Review Act.

This Court 15, of course, not bound by the decisions of

the House of Lords but they must have persuasive authority, in the

absence of any contrary blndinq declslon. Here, it 1 s unnecessary

to conslder the whole scope of abuse of power by unfalr or

lnconslstent action. The questlon 1 s a narrower one: If the

flrst respondent, having competing appllcatlons before hlm In

respect of the same area, applied a quldellne aqalnst one and not

aqalnst another, wlthout any stated or ratlonal	~ustlficatlon for
that dlscrlmination,	1 s that an abuse of power?

In applylnq the quidellne here, the first respondent

commenced from the proposition	that:
,

2 0 .

I

' I . . . most of the metropolltan stations were

entitled, as stated on their licences, to serve

much of the Caboolture shlre, even before my

determinatlon of their Service Areas."

Strictly speaklng, there is an inaccuracy in that

statement, since none of the Brisbane licences stated any

entitlement.	For example, the licence for	4222, issued in	1984,
was granted	".	.. for	a public broadcasting station situate at

Mt Coot-tha, Brisbane to serve the City of Brisbane and	adjacent
urban areas area [sic7 and to be known by the call slgn	4222". It
did not, nor does	the statute, defme what rights the definltion

of the area to be served glves.

The area just quoted dld not extend into the Caboolture

shire, nor did the statement of the area to be served In the

llcence for 4 M " ,	a much more Important statlon. The 4 M " llcence
deflned the area to be served as	"the Clty of Brisbane, Queensland

and ad~acent urban portlons of the Local Government Areas of

Redland, Albert, Beaudesert, Moreton,	Ipswlch, Plne Rlvers and
Redcliffe".

The first respondent's letter, quoted above, having

referred to the statements of the areas to be served, on the

licences of the metropolitan statlons, went on:

"I believe that it would not be appropriate to

extend the area served by 4SS into thls area which
is served by the metropolitan stations."

. 21.

l

That was, in the context, a reference back to the

requirements of the guideline set out at the beginning of the

paragraph and particularly to the exception In It:

' I . . . except where the community or communitles

Included are not already receiving a service and

are not within the Servlce Area of another

statlon. "

The nub of the reasoning seems to be that the

applicant's service area could not, under the guidelines, be

extended, because the shire was "already	... within the Servlce
Area of another station". Leavlng aslde	the oblection that that

was not so, because the malority of the shlre was not wlthin the

servlce area of exactly the same oblectlon was available against the two statlons any statlon, the point of unfairness is that

whose servlce areas I have quoted, and most lmportantly agalnst

4M". a very popular Brlsbane statlon. It was lust as true of

4M" as of the appllcant's station that to extend Its servlce area

lnto the Caboolture shlre would glve it an area much of whlch was

already wlthm the service areas of five metropolltan statlons.

The prlnclpal reason given for the declslon was

erroneous, In that it involved relecting the applicant for a

reason equally appllcable to other applicants whose claims	had
lust been allowed, and who formed, Indeed, part of a group	whose

entitlements were thought	to be destructive	of the applicant's
claim.

. 2 2 .

l

It should be added that the applicant's complalnt of

unfairness may be thought to gain strength from a related point in

the minute, referred to above, whlch the first respondent's

counsel descrlbed as underlying the Ministerial letter of 18

December. I shall repeat the relevant passage. The flrst

respondent was urged to re~ect the applicant's case for the

reasons that, inter alia:

"In developing this and every other recommended

Servlce Area, the Department has tried to maintaln rather than redress the commercial balance between stations.

If one follows the first respondent's approach and

considers the Brisbane stations as a group, It appears that they

have been allowed to transmit such slgnals as effectlvely to

compete wlth the applicant In the heart	of Its home territory	-
but not vlce versa.	The material avallable showed that	410 (whlch

was itself once	an extra-metropolltan statlon) had been allowed to
transmit from St	Helena, an lsland in Moreton Bay, a slgnal whlch

was still reasonably strong along the coast runnlnq north past

Nambour. Another Brlsbane statlon, 4KQ, transmlts a slgnal of

strength of 10mV/m (millivolts per metre) In the vlclnlty of

Caloundra, an Important coastal centre close to Nambour, the

applicant's 10mV/m line being also close to Caloundra. It seems

scarcely fair to make a decision based on preservlng to the

Brisbane stations the area they were "established to serve" (as

was said in the minute of 20 October 19871, when the appllcant was already competing with Brisbane stations transmlttlng strongly to

the area	was establlshed to serve.
c	23

>

Uniform Appllcatlon of Guldelines

The third paragraph of the first respondent's letter

quoted above expresses an unwillingness to disregard the guldeline

in favour of the applicant "as it would be unfair to other

llcensees whose determined Servlce Areas were not In accordance

with thelr claims".

Not a great deal was said about this polnt at the

hearlng, for not much can usefully be sald.	The mere circumstance
that other unidentified llcensees had not been given their	full

claims would obviously	not, of itself, create any unfairness	In
glvlng the appllcant its clalms.	While this ground of	declslon

appears to have some llttle Importance, its apparent lrratlonality

does not necessarlly, in my view, lustlfy settlng aslde the

decision. It is not every mlstake in expressed reasoning which 1 s

sufflclent to do so.

In vlew of the concluslons reached on other aspects of

the matter, however, it 1s unnecessary to dt?cl.de	the question
whether the mlstake lust mentloned would, In	Itself, have entltled
the appllcant to rellef.

Summary and Conclusion

It was suggested at the hearlng that the applicatlon

requires amendment by replacing "Sectlon	8 5 ( 5 ) of the Broadcastinq
Act 1942" by "Sectlon 8 5 ( 4 ) of the Broadcastlnq Act	1942" in par.1
and that will be ordered.

Numerous other ob~ections to the legallty of the

decislon attacked are contained in the appllcatlon but not dealt

with here. My principal concluslons are:

1. "he first respondent failed to take Into account a relevant

consideration, namely the interests	of the publlc affected by
the decislon, including any disadvantage	to them from not

being served by a station professing to emphasise local

interests, as opposed to metropolitan Interests.

2. The declsion was vitiated by inconsistency of application of

the guidelme thought to be relevant: It was true of a

number of the	competing applicants	that their llcences	dld
not, and others	did, include part	of the	shlre - but that

ground was used to defeat thls appllcant only, and not others

slmilarly placed.

Counsel f o r the flrst applicant asked for a flnal

decislon In the matter In	h1s favour, but did so falntly, havlng
in mlnd the decislon	of the Full Court in Minlster for Immlqratlon
and Ethnlc Affalrs v. Conynqham (1986) 68 A.L.R. 441. The way	In

whlch the matter was approached was In	my oplnlon wrong and the
dlsreqard of the public Interest evinced throughout much	of the

collection of materlal before me is both serious and dlsturblng. It is repetltive to say so, but needs emphasis, that the statute

does not contemplate, In making declslons about access to

broadcasting audlences, conslderatlon	of the lnterests of	the
broadcasters only.

. 25.

Nevertheless, it appears clear on the authorlty o f

Conynqham's case, that nothlng can properly be done with the matter other than to set the decislon aside and remit it to the flrst respondent f o r further consideration. That wlll be ordered and the first respondent must pay the costs.

i cer t~fy that thlc 2nd t h e 674 preceding

Fages are a trnIz =cp., cf #!h r z = x ' x for

juclgvm! i k w n ol( i+:s Hcmu:

ivir. JLIS~KS Plncus	&L&%"
Associate
Data E: JJ/Y 199%

Counsel for Solicitors for the the appllcant: Mr F.M. Douglas

applicant:  Blake Dawson Waldron

Counsel for the flrst respondent: Mr J.A. Logan

Solicitors f o r the first respondent:	Australian	Government
Sollcitor
Dates o f Hearlng:	2 2 , 23 June 1988