Deveson, I. v Australian Broadcasting Tribunal
[1991] FCA 633
•25 OCTOBER 1991
Re: IVAN DEVESON; PETER RITCHIE; MICHAEL ROBINSON; PETER DAY; ROBERT CAMPBELL;
PHILIP SAGGERS; BERNICE ROGERS; CHRISTOPHER CHAPMAN; MICHAEL HARRISON; SEAN
O'HALLORAN and KEVIN CAMPBELL
And: AUSTRALIAN BROADCASTING TRIBUNAL
No. G632 of 1991
FED No. 633
Administrative Law
104 ALR 331
(1991) 32 FCR 124
(1991) 25 ALD 695 (extracts)
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)
CATCHWORDS
Administrative Law - Inquiry by Australian Broadcasting Tribunal - summonses to produce documents - whether authorised by section under which they purported to be issued - whether summonses so wide as to be beyond power - whether documents summonsed must be relevant to issues the subject of the Inquiry.
Broadcasting Act 1942 (Cth) - ss.21, 89X
HEARING
MELBOURNE (heard in Sydney)
#DATE 25:10:1991
Counsel for the applicants: Mr W.H. Nicholas QC and Miss P. Bergin
Solicitors for the applicants: Mallesons Stephen Jaques
Counsel for the respondent: Mr P. Roberts and Mr M. Minehan
Solicitor for the respondent: Australian Government Solicitor
ORDER
The summonses of 24 September 1991 issued by the Respondent and addressed to the Applicants be set aside.
The Respondent pay the Applicants' costs of the application.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This application is brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) seeking orders of review with respect to summonses issued under s.21(2) of the Broadcasting Act 1942 (Cth) ("the Act").
The Australian Broadcasting Tribunal ("the Tribunal") is conducting an inquiry into what has been described as The Seven Network Reconstruction. The Channel 7 Network has come under the control of receivers, Messrs Crawford and Allpass, following the failure of the Qintex Group of companies. A number of banks are owed a great deal of money. Three companies, Television Holdings Ltd, The Seven Network Ltd and West Central Seven Ltd are seeking, with the support of the banks and of the receivers, to take over several broadcasting licences.
The Tribunal, having received applications from the three companies I have mentioned and from certain individuals for the approval of the acquisition of prescribed interests in the relevant commercial television licences, initiated an Inquiry under the Act. In giving notice of the Inquiry, the Tribunal stated the issue to be inquired into in these terms:-
"The issue at the inquiry will be whether or not the Tribunal should approve the transactions by which the applicants have acquired their prescribed interests having regard to the criteria specified in the Act."
This statement was in such general terms that it scarcely satisfied the requirements of Regulation 9(3)(b) of the Australian Broadcasting Tribunal (Inquiries) Regulations which requires that the notice of the commencement of an Inquiry "specify the issues to be considered in the Inquiry". In any event, no more detailed issues have been specified.
I need not set out the criteria to which the Tribunal will have regard in the Inquiry save to say that it appears from a letter dated 24 September 1991, which accompanied each of the summonses which are under consideration, that the Tribunal will be paying particular attention to the question of control of the licensee companies and that an issue will be whether the involvement of a number of foreign companies from the restructured group of companies is such as to place any of those foreign companies in a position to exercise control of the relevant licenses and whether the restructuring involves any person in a contravention of s.92 of the Act. The letter of 24 September 1991 also directs attention to ss.89KA and 89KB of the Act.
Summonses in the following form were served on each of the applicants, each of whom was to be a director or to hold a shareholding in one of the applicant companies:-
"YOU ARE HEREBY SUMMONED to appear before the Australian Broadcasting Tribunal at Tandem House, 76 Berry Street, North Sydney, New South Wales on 9 October, 1991 at 10.00 am to produce the following documents:
(1) Documents, correspondence, memoranda, agreements, file notes, working papers and facsimile transmissions however maintained for the period 1 April 1991 to date relating to or between yourself and:
(a) Russell Reynolds Associates Inc.;
(b) (i) Barclays Bank Australia Limited;
(ii) Chase AMP Bank Limited;
(iii) Commonwealth Bank of Australia;
(iv) State Bank of New South Wales Limited;
(v) Hong Kong Bank of Australia Limited
(vi) Australia and New Zealand Banking Group Limited;
(vii) LTCB Australia Limited;
(viii) Bank of America Australia Limited;
(ix) Societe Generale Australia Limited;
(x) Sumitomo Trust Finance (Australia) Limited;
(c) David Alexander Crawford and/or John Geoffrey Allpass and/or KPMG Peat Marwick;
(d) Allen Allen and Hemsley;
(e) Blake Dawson Waldron;
(f) Mallesons Stephen Jaques;
(2) Documents, correspondence, memoranda, agreements, file notes, working papers and facsimile transmissions however maintained in relation to your appointment or possible appointment as a director of Television Holdings Limited, The Seven Network Limited or West Central Seven Limited.
(3) Documents, correspondence, memoranda, agreements, file notes, working papers and facsimile transmissions however maintained in relation to the performance of your duties as a director of Television Holdings Limited.
(4) Documents, correspondence, memoranda, agreements, file notes, working papers and facsimile transmissions however maintained in relation to the offer of, obtaining, receiving or holding shares in Television Holdings Limited, The Seven Network Limited or West Central Seven Limited.
(5) Documents, correspondence, memoranda, agreements, file notes, working papers and facsimile transmissions however maintained in relation to voting at meeting of directors and/or general meetings of Television Holdings Limited, The Seven Network Limited or West Central Seven Limited."
An issue as to whether or not the officer who signed each summons was duly authorised to do so has been reserved for consideration if the summonses be not otherwise held to be invalid. Accordingly, I do not deal with that point.
The first ground taken is that this was a summons to appear before the Tribunal to produce documents. That each summons was intended to be so limited was made clear by the accompanying letter which said:-
"The summons may be satisfied by the lodgment of the required documents with the Tribunal at any time before the return date."
Yet s.21 provides inter alia:-
"(1) For the purposes of proceedings before the Tribunal at an inquiry, the Tribunal may take evidence on oath or affirmation.
(2) For the purposes of proceedings before the Tribunal at an inquiry, an officer of the staff of the Tribunal shall, if directed to do so by the Chairman of the Tribunal, or by another member of the Tribunal who is to preside, or presides, at the proceedings, summon a person to appear before the Tribunal at the proceedings to give evidence and to produce such documents (if any) as are referred to in the summons.".
(the emphasis is mine).
This section refers to a summons "to appear before the Tribunal at the proceedings to give evidence and to produce such documents ... ." Although it may seem strange that the section authorises only the summonsing of a person to give evidence and to produce any documents specified, there appears to be no ambiguity. Thus s.21AA, which imposes a penalty, provides the words:-
"A person served in accordance with section 21 with a summons to appear as a witness before the Tribunal shall not, without reasonable excuse -
(a) fail to attend as required by the summons; or
(b) fail to appear and report himself from day to day unless excused, or released from further attendance, by a member. Penalty: $1,000 or imprisonment for 3 months."
Similarly, s.21AB, which also imposes a penalty, also commences with a reference to "a person appearing as a witness". The penalty is imposed for refusal or failure to take an oath or make an affirmation or to answer a question or "to produce a document that the person is required to produce by a summons served on the person in accordance with s.21".
It therefore seems clear that s.21 deals solely with the situation where a person is summonsed to appear before the Tribunal at the Inquiry to give evidence. Section 21 does not authorise the giving of a summons to a person required merely to produce documents.
A summons of that latter type is authorised by s.89X which provides inter alia:-
"(1) Where the Tribunal has reason to believe that a person is capable of supplying information, or producing documents, considered by the Tribunal to be necessary to enable it to exercise any of its powers, or perform any of its functions or duties, under this Part, the Tribunal may, by notice in writing served on the person, require the person to supply any such information, or produce any such documents within a specified period (not being less than 21 days after the day of service of the notice) or within such further period as the Tribunal, on application, allows by notice in writing served on the person within that specified period."
It is agreed by counsel, however, that the summonses in question were not issued under s.89X and, moreover, that a period of not less than 21 days was not specified therein.
Accordingly, the summonses, which purportedly were issued under s.21 of the Act were not authorised by that section as they were not directed to persons who were required to attend to give evidence.
There is a second major issue in the proceedings. The applicants did attend as summonsed and produced documents in accordance with paragraphs 2, 3, 4 and 5 of the summonses, each of which used the words "in relation to" and therefore related the documents required to be produced in a relevant way to the subject matter of the Inquiry. The applicants, however, refused to produce documents under paragraph (1), the objection being taken that that paragraph was too wide, for it did not contain any words of limitation such as "and related to the restructuring of The Seven Network".
In the absence of any words of limitation, it is clear that paragraph (1) of the summonses would be likely to include documents which had no relevance whatever to the matters the subject of the Inquiry. For example, on the return of the summonses, the example was put to the Tribunal by the representative of the applicants that, if any of the applicants held the recent prospectus issued in relation to the Commonwealth Bank of Australia, that prospectus would have to be produced. Similarly, if any of the applicants kept his or her ordinary bank account with the Commonwealth Bank of Australia, with the State Bank of New South Wales Ltd or with the Australia and New Zealand Banking Group Ltd or had had any unrelated dealings with Messrs Allen Allen and Hemsley, Blake Dawson Waldron or Mallesons Stephen Jaques, Solicitors, those documents would have to be produced. The problem may even go further. For example, it has been conceded that one of the applicants is a director of the Commonwealth Bank of Australia, though recently appointed. If he, or any other applicant who may be a director of one of the named banks, holds documents relating to that bank though totally unrelated to The Seven Network, such a document would have to be produced.
This result was in fact intentional. When objection was taken before the Tribunal to the form of paragraph 1 of the summonses, the Chairman, Mr K. Wilson, said:-
"But I don't intend to engage in a justification or otherwise, other than to indicate to you that following the receipt of the letter from Mallesons, we did give it full consideration in terms of the relevance that is reflecting on what your lawyers were saying. Now it seemed to us that the matter got down to a - perhaps if I can put it - try to put it in a simple term. What you and your - corporate you - you and your lawyers considered what was relevant as opposed to what we considered what was relevant. Now we agree that the summons may well involve issues relating to personal arrangements, for example, banking facilities.
However, the summons was drawn particularly for that purpose. And it could only be when we looked at the material that we could determine whether or not it was relevant to the purpose we had in mind. In respect of that, where that material would fall into a basket, let's say where we took the view that it was not relevant, it would be granted complete confidentiality and returned. But we don't want you to think that almost accidentally, by drafting the summonses we encompassed those areas by accident. We didn't. And we also don't want you to read into that any presumption on our part, but it was a conscious decision."
Further discussion between the representative for the applicants, Ms L.C. Norman, and the Chairman included the following passage:-
"MS NORMAN: For example, if someone had received a prospectus from the Commonwealth Bank, for example, as many people do, that would be covered.
...
MR WILSON: That indicates what, in fact, the document was supposed to bring out. I mean, clearly, if it brought up the prospectus with the Commonwealth Bank, you'd get the prospectus back fairly quickly. But, using it as an example of the difficulty of describing what `relating to' as opposed to `between' means, it was exactly for that purpose. I mean, again, it fits into that category for me of, well, people might think that this is comprehensive and they cannot understand why we think the thing is relevant. But it's part of the inquiry that we want to see all of that and the seeing of it will determine the relevance of it. But I mean, I don't want you to think that I'm totally negative to what you're saying.".
As can be seen, the Tribunal had in mind that the summonses were so wide that they would cover some documents which were not relevant to the Inquiry and it intended, once all the documents had been produced, to go through them and to return those documents which did not assist the Inquiry.
In these present proceedings, counsel for the Tribunal submitted that the test to be applied was whether or not the Tribunal was acting bona fide for the purpose of conducting its Inquiry. Counsel referred to Ross v Costigan (1982) 41 ALR 319 where at 335 Ellicott J. said:-
"The Commission was appointed to conduct an investigation for the purpose of discovering whether there was any evidence of the suggested bribery. Such an investigation may be, and ought to be, a searching investigation - an inquisition as distinct from the determination of an issue. ... This does not mean, of course, that a Commission can go off on a frolic of its own."
On appeal, 41 ALR 337 at 351, Fox, Toohey and Morling JJ. rejected the contention that inquiry could not be made because "there was no evidence linking them with members of the union or any relevant illegality". Their Honours went on to say:-
"This provides no reason why the Commissioner should not inquire further, and require further information from them, if he considers these courses desirable in the performance of his function. We should add that `relevance' may not strictly be the appropriate term; what the Commissioner can look to is what he bona fide believes will assist him in his inquiry."
Counsel also referred to Mannah v State Drug Crime Commission (1987) 13 NSWLR 28.
However, the Tribunal, which exercises a statutory power, must act within the limits of that power and, if the Tribunal acts beyond power, it is no answer for the Tribunal to say that it was acting bona fide for the purpose of conducting an investigation. Of course, a statutory power will not be exercised validly if it was not exercised bona fide for the purpose for which it was granted. But it does not follow that an administrator who acts beyond power acts lawfully merely because his bona fides are not in question.
I take it to be a necessary implication from s.21, which uses the expression "for the purposes of proceedings before the Tribunal", that any document required to be produced be a document which may assist the Tribunal in its inquiry. Such a requirement is expressly stated in s.89X which requires that the documents sought be "considered by the Tribunal to be necessary to enable it to exercise any of its powers". The Tribunal does not have power to compel the production of other documents, that is to say documents other than those which may assist the Tribunal in its Inquiry, simply because the production of documents of a certain type may be a convenient way of getting to documents relevant to the Tribunal's task. The Tribunal has no power to compel the production of documents which have no relevance whatever to its Inquiry. I shall return to this point.
The necessity that there be an apparent relevance between the documents sought and the administrative task being performed has been clearly stated.
In Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1977-1979) 143 CLR 499 the ambit of the power conferred by s.264(1)(b) the Income Tax Assessment Act 1936 (Cth) was in question. At p 508 Stephen J. said:-
"The legislation having conferred a limited power upon the Commissioner, he must so act as to observe that limitation; such requirements as he makes for the production of documents should accordingly reflect that limitation. To serve a notice in the short form, at least in cases where he is admittedly unaware of whether or not all the documents which he describes are within the ambit of his power (that is whether they do relate to the income or assessment of a relevant person), is necessarily to hazard or, indeed render probable, an excessive exercise by the Commissioner of his power. It goes without saying that this is a consequence which the Commissioner should be astute to avoid and the courts vigilant to prevent."
On appeal, Gibbs A.C.J. said at 525:-
"The next question that arises is whether the notices given to the Bank were sufficient in form. To be valid a notice to produce documents under s.264(1)(b) must of necessity identify with sufficient clarity the documents which are required to be produced. However the notice must in my opinion go further: it must show the person to whom it is addressed that any document which he is required to produce is one whose production the Commissioner is entitled to require."
At 537-8, Mason J. said:-
"As the Commissioner's coercive power to require production is
limited, any notice given in exercise of the power must in terms
conform to the statutory limitations if it is to be valid. It will
in my view conform to those limitations only if it clearly confines
the documents to be produced to the class of which the Commissioner
is authorized to require production, though it may go on to include
particular documents on the footing that they fall within that class.
If not so limited, the notice fails on its face to express the
limitation which the section places on the Commissioner's authority.
Because the exercise of the power casts onerous obligations on the
recipient of a notice, and because the recipient (not being the
taxpayer) is only justified, vis-a-vis the taxpayer, in producing the
taxpayer's documents without his consent in response to a valid
demand, it is for the Commissioner so to formulate his notice that
this limitation on his authority is drawn to the attention of the recipient." Jacobs J. agreed in general with the principle stated by Mason J.
These principles have been applied in a number of decisions of the Court, dealing particularly with notices given under s.155 of the Trade Practices Act 1974 (Cth). It is sufficient for me to refer to Bannerman v Mildura Fruit Juices Pty Limited (1984) ATPR 40-467, where Bowen C.J. and Neaves J. said at 45,376:-
"The requirement that a notice under subsec. 155(1) identify the matter that constitutes, or may constitute, a contravention of the Act has a twofold purpose. In the first place it is necessary that the notice disclose on its face that it is an exercise of the power which the subsection confers. That power depends upon the existence, objectively determined, of a `matter', in the sense in which that expression has been explained in earlier decisions of the Court, that constitutes, or may constitute, a contravention of the Act and a belief in the person issuing the notice that the recipient is capable of furnishing information or producing documents relating to the matter so identified. Secondly, the identification of the matter that constitutes, or may constitute, a contravention of the Act provides for the recipient the point of reference by which to judge whether the notice validly requires the specified information to be furnished or the specified documents to be produced. It will only validly do so if the information and the documents specified in the notice can be seen, from the face of the notice itself, to be information or documents that relate to a matter of the kind described in the subsection and identified in the notice."
Remarks of my own were to like effect.
It is true that s.21 of the Act does not express limitations on power such as are expressed in s.264(1)(b) of the Income Tax Assessment Act or in s.155 of the Trade Practices Act. However, I do not read s.21 as conferring an unlimited power upon the Tribunal to require the production of any documents whatever. Section 21 is a facultative provision given to the Tribunal to assist it in the holding of an Inquiry. An Inquiry will be initiated, as it was in this case, because the Tribunal has received an application under the Act requesting the exercise of a substantive power, that is to say its authority for the transfer of licences. Such an Inquiry has a limited ambit and, as I have already mentioned, the Regulations require the Tribunal to give notice of the Inquiry and to specify in that notice the issues to be considered.
In this light, and as s.21 specifically limits its power as one to be exercised "for the purposes of proceedings before the Tribunal as an inquiry", I take the power granted by s.21 to be relevantly limited to requiring the production of such documents as may assist the Tribunal in the resolution of the issue or issues the subject of the Inquiry. This interpretation is confirmed by the fact that the summons to a person to appear before the Tribunal is to give evidence and to produce such documents as are referred to in the summons.
The section confers a facultative power enabling the Tribunal to summons a person to attend before the Tribunal at the hearing of its Inquiry to answer such questions and to produce such specified documents as have a bearing upon the issue or issues into which the Tribunal is inquiring.
This is not such an unlimited power as the powers expressed in ss.263 and 264(1)(a) of the Income Tax Assessment Act, powers in respect of which the limitations appear to be that the power be exercised bona fide and in a manner which is not excessive, as to which see O'Reilly v Commissioner of the State Bank of Victoria (1982-1983) 153 CLR 1 at 48 and that the effect of the exercise of the power upon persons affected be taken into account in the decision to exercise the power, as to which see Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368 at 374.
This interpretation accords, moreover, with the limitation expressed in s.89X where the documents sought must be considered by the Tribunal to be necessary to enable it to exercise any of its powers or perform any of its functions or duties. The context in which s.21 appears is quite different from that of the Royal Commission considered in Ross v Costigan.
As paragraph (1) of each of the summonses is so wide as to include documents some of which will have no bearing whatever upon the issues the subject of the inquiry and will be documents the production of which the Tribunal is not empowered to compel, paragraph (1) is invalid. It is not for the Court to express a limitation which the summonses do not express and which the Tribunal intentionally did not intend to express.
If that were the only problem with the summonses, I would merely declare paragraph (1) of each of the summonses to be invalid. However, for the reasons I have given, I am of the view that the summonses did not comply with s.21 for they were not addressed to a person requiring that person to attend before the Tribunal to give evidence and to produce documents. Each summons was intended to achieve the result that could have been achieved under s.89X of the Act, but did so without complying with that section.
Accordingly, I shall order that the summonses be set aside. The respondent should pay the costs of the application.
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