Family Radio Ltd v Australian Broadcasting Tribunal

[1991] FCA 122

Re: FAMILY RADIO LTD.
And: AUSTRALIAN BROADCASTING TRIBUNAL; BRISBANE EDUCATIONAL BROADCASTERS
CONSORTIUM; EDUCATIONAL BROADCASTERS LIMITED and BRISBANE INDIGENOUS MEDIA
ASSOCIATION
No. Q G32 of 1990
FED No. 122
Administrative Law
28 FCR 584

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.(1)

CATCHWORDS

Administrative Law - whether tribunal can have regard to ministerial statement - whether relevant considerations ignored.

Administrative Law - whether requirements of natural justice satisfied - whether reasonable apprehension of bias.

Broadcasting Act 1942 ss.81A, 82, 83C

Administrative Decisions (Judicial Review) Act 1977, ss.5, 6

HEARING

BRISBANE

#DATE 28:3:1991

Counsel for the applicant: Dr. C.G.S.L. Jensen

Solicitors for the applicant: Bennett, Carroll and Gibbons

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

Solicitors for the first Australian Government
respondent: Solicitor

Counsel for the fourth respondent: Mr L. Boccabella

Solicitors for the fourth respondent: Dale and Fallu

ORDER

1. The application be dismissed.

2. There be no order as to costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an application under the Administrative Decisions (Judicial Review) Act 1977 ("Judicial Review Act") with respect to the conduct and proposed conduct of the first respondent ("the Tribunal") in relation to the grant of a public radio licence for Brisbane. The Tribunal has made a decision adverse to the interests of the applicant ("Family Radio"), which seeks to challenge it on three grounds: reasonable apprehension of bias, breaches of the requirements of natural justice, and acting in accordance with a Ministerial policy statement.

1. Family Radio's application was framed as one to review conduct and proposed conduct, it appears, because of concern that the word "decision" in s.5 of the Judicial Review Act might not cover what the Tribunal did. In s.5 the word "decision" -
   

"... connotes a determination for which provision is made by or under a statute, one that generally is substantive, final and operative ..." (Australian Broadcasting Tribunal v. Bond (1990) 64 ALJR 462 at 471L).

1. In the case just cited, it was also held that one may attack the conduct of proceedings under s.6, including procedural decisions, but not "decisions made along the way with a view to the making of a final determination" (ibid.).

2. Sections 5 and 6 of the Judicial Review Act overlap, because applications under both may be based upon procedural errors: for example, breaches of the rules of natural justice. But if it is desired to attack a substantive decision, then the case must be based on s.5. Here, the relief sought is primarily the setting aside of a substantive decision and therefore s.5 rather than s.6 should have been invoked. However, no point was taken by the respondents about that and I propose to deal with the matter as if the application filed had referred to the terms of s.5 as well as those of s.6. In my view, the Tribunal's decision, the nature of which is explained below, is reviewable under s.5 in accordance with the explanation of that section given in Bond's case. That is so because, as will appear, the making of the decision in question is a distinct function of the Tribunal, specifically provided for in the relevant statute.

3. On 14 December 1988, the Minister of State for Transport and Communications ("the Minister") caused a notice to be published under the Broadcasting Act 1942 ("the Act"). It invited applications for a public FM radio licence for Brisbane. The notice read in part:
   

"Interested persons are notified that they may:

(a) lodge applications in accordance with the regulations for the grant of a licence with the General Manager, Australian Broadcasting Tribunal ... not later than 5.00 pm on 24 March 1989".

1. Family Radio, as well as the second, third and fourth respondents, lodged applications in response to the notice. After proceedings which are discussed below, the Tribunal made a certain determination with respect to the licence, in a "Preliminary Report" dated 22 February 1990. As a practical matter, this meant that only the fourth respondent, Brisbane Indigenous Media Association ("BIMA") had any real chance of getting the licence. It was that decision which provoked the present application. Family Radio had proposed a Christian service and other applicants educational services.

2. Under s.81A of the Act, a public licence may be granted for general community purposes or for a special interest purpose. The advertisement I have mentioned said that the "purpose for which the public radio licence is granted shall be to provide a special interest purpose service as outlined in Section 81A of the Act". Under s.81A(3), the Minister had power to specify also the "particular special interest or interests to be served pursuant to the licence". He did not do so and therefore, under s.81A(4)(b) the Tribunal became obliged to "determine the particular special interest or interests to be served pursuant to the licence". The Act does not say whether or not the Minister has the right to provide policy guidance or directions to the Tribunal when performing this function - i.e., when deciding what particular special interest or interests is to be served. One of the complaints made by Family Radio in this Court was that the Tribunal had confined its attention, in performing this function, to a criterion laid down by the Minister and had ignored other considerations - in particular, the characteristics of the various applicants before it.

3. The advertisement was published under s.82 of the Act, which creates an obligation to publish in that fashion before a licence is granted. Section 83C lays down the criteria for grant of a public licence. Its most important provisions for present purposes are sub-ss.4 and 7.

4. Section 83C(4) reads in part as follows:
   

"The Tribunal shall refuse to grant a public licence to a person if it appears to the Tribunal, having regard only to the following matters or circumstances, that it is advisable in the public interest to refuse to grant the licence to the person:

(a) the Tribunal is not satisfied that the person:

(i) is a fit and proper person to hold the licence;

(ii) has the financial, technical and management capabilities necessary to provide an adequate and comprehensive service pursuant to the licence; and

..."

A number of other considerations follow. Section 83C(7) says:

"Where there are 2 or more applicants for a public licence, each of whom is a person to whom, but for this subsection, the Tribunal would be required to grant the licence, the Tribunal shall grant the licence to the most suitable applicant".

1. It is clear that if s.83C had become relevant, the Tribunal would have been obliged to consider whether the various applicants were, for example, fit and proper persons. That would have necessitated examination of the conduct of some persons associated with each applicant. The Tribunal has never got to the stage of considering the qualities of the various applicants, because what it did was to determine the particular special interest to be served to be "Special Interest (Aboriginal)". The only one of the four applicants before the Tribunal which proposed a service of that sort was BIMA. The Tribunal's next step, unless prevented by an order of this Court, would be to consider whether BIMA qualified for a licence under the criteria set out in s.83C. In undertaking that task, the Tribunal would not be concerned to compare the relative merits of any of the applicants, as contemplated by s.83C(7) which I have quoted above.

2. It is necessary to consider in some detail the criticisms made by the applicant. But one thing which must be said is that the Tribunal adopted a rather inconvenient mode of proceeding: it involved the applicants engaging in expensive preparation for a s.83C hearing when, in the events which have happened, only BIMA will be concerned in that hearing. But adoption of an inconvenient or unwise procedure is one thing and illegality is another.
   Criteria and Ministerial Policy

3. Counsel for the applicant contended that the Act required the Tribunal to consider the criteria in s.83C; it is plain that the Tribunal did not do so, in arriving at its decision as to the particular special interest to be served. It is convenient to consider, with this complaint, the submission that the Tribunal went wrong in law in confining itself to consideration of a criterion laid down by the Minister.

4. In August 1985, the Minister issued a document headed "Public Radio: Planning Guidelines" which, in discussing Ministerial power to specify the special interest to be served by a public licence, said:
   

"Where there is identified major social need consistent with public policy, the Minister may specify the Special Interest as one (or a combination of several if appropriate) of the following:

- Educational

- Ethnic

- Aboriginal

- Radio for the Print Handicapped".

The guidelines went on a little later:

"The Minister will not necessarily specify the Special Interest, even where there is apparently a community need in an area for one or more of those services listed in 1(c) above. In most cases, the ABT, through the public inquiry process, would be best able to assess whether there is sufficient community demand to warrant such a service, or to select among competing applicants proposing various Special Interest services".

1. In its reasons for decision, the Tribunal referred to the 1985 guidelines and suggested that they "made it clear that the complementary roles of the Minister and the Tribunal in specifying special interests were a matter of deliberate public policy". I do not understand the intended force of the word "complementary", but it may, perhaps, imply that the guidelines divided the responsibility for specification of a special interest between the Minister and the Tribunal; the guidelines did not and could not do so. The Act makes it clear that the Minister may himself specify the particular special interest to be served, but if he does not, the Tribunal is to do it.

2. The reasons then went on to refer to a confirmation, in 1989, of the 1985 policy. The next paragraph (9) reads:
   

"Apart from these ministerial statements, there is little explicit guidance for the Tribunal in specifying a special interest. The Planning Guidelines refer to 'major social need consistent with public policy' (ibid. 5) but, although the Minister has indicated that there will be a review of 'how ... needs criteria might best be articulated' (ibid, 5), this review is yet to be completed".

1. This paragraph is discussed below. After referring to the evidence, the Tribunal said in paragraph 72:
   

"At this point it will no longer be sufficient to demonstrate that a need exists (target population), that it is not being satisfied (existing services), nor even that the target population wants the service being offered (demand). The crucial issue becomes priorities: which 'major social need consistent with public policy' is the most urgent?"

1. There followed some discussion of relative urgency. A Christian service (that offered by Family Radio) was said to be the least urgent and there followed a comparison of the need for indigenous, as opposed to educational, services, in the course of which the test "major social need consistent with public policy" was repeated. The reasons concluded:
   

"The Tribunal determines that the particular special interest to be served pursuant to the licence under consideration in this inquiry shall be indigenous. The licence will be granted as 'Special Interest (Aboriginal)'".

1. Had it not been provided with the assistance of the Ministerial guidelines, one might have expected the Tribunal to take into account a number of matters other than that just discussed, or at least to consider doing so. The Act lays down no tests by which to choose which particular special interest should be served by a proposed public licence. It would be a rational course, in choosing between two or more suggested interests to be served, to consider what appeared to be available to serve those interests. For example, if, as between two competing interests, it seemed to the Tribunal likely that the service provided to one would be of much better quality, that would be taken into account, along with the need for each service; similarly, if it appeared possible that no-one would be interested in supplying, say, an ethnic service, then that could hardly be ignored, in considering whether to specify an ethnic service. The public interest might be better advanced by an excellent service catering to one interest rather than an inferior service (or none) catering to another, even if the need for a service of the latter kind appeared to be the greater.

2. Doubts as to whether, in determining which particular special interest should be served, the Tribunal could take into account the likely quality of service for various interests, may be lessened by considering the order of events dictated by ss.81A and 82. The Act could have provided that the Tribunal should exercise its interest-selection function before any licence applications were called. However, it does not. That function may be exercised only where the Minister has specified that the licence is to be granted for a special interest purpose in a notice under s.82(1). That is a notice which, amongst other things, invites interested persons to apply for the grant of the licence. The Act does not say whether the determination as to which interest is to be served, and the decision as to who is to get the licence, are to be made on the same occasion or separately, and that appears to me to be within the Tribunal's discretion. But whichever course is taken, at the time the interest determination is made, the applicants will be identified and there will be an amount of information before the Tribunal as to their characteristics, as well as the way in which they intend to provide their proposed services.

3. There are two questions; one is whether the Tribunal acted unlawfully in treating the Ministerial guideline as if adherence to it was compulsory. And the other, related to the first, is whether it ignored relevant considerations.

4. Counsel for BIMA pointed out that under s.125D, the Minister has the responsibility for, amongst other things, planning the development of broadcasting services in Australia: see para. 1(a). This does not, in my view, assist BIMA. Planning the development of broadcasting services could not include limiting the Tribunal as to the way in which it shall exercise its specific statutory functions; reliance on the guidelines must be defended on the basis of broader contentions.

5. One would need to quote the whole of the Preliminary Report in which the decision complained of is contained in order firmly to establish the point, but it appears clear that the Tribunal has treated the governing test as being that which it described as "crucial", namely which "major social need consistent with public policy" is the most urgent. That differs from the relevant part of the guidelines in two ways. First, the guidelines do not say that in performing its function the Tribunal is to consider whether there is an identified "major social need consistent with public policy". They say that where such a need exists the Minister may specify certain special interests. As to specification by the Tribunal, the guidelines' emphasis appears to be on demand rather than need. The second difference is that the guidelines do not contemplate that the Minister will compare one social need with another and determine which is the most urgent. It cannot be said, then, that the Tribunal has slavishly followed the Ministerial statement. It applied part of the statement in a modified form.

6. According to a leading authority in the United Kingdom:
   

"Codes of practice, guidance, and so forth have proliferated in a disorderly way reminiscent of delegated legislation at the time of the Committee on Ministers' Powers. There is now a jungle of quasi-legislation of this kind, some codes having legal effect and others not and some, though only a minority, being subject to parliamentary approval". (Wade, Administrative Law, 6th. edition, p 857).

1. The disadvantage of including legal rules, or rules which have much the same effect as legal ones, in Ministerial speeches and other documents issued by departments is, in part, that just alluded to; the practice makes the law harder to find and to apply. The legal objection to the practice is different; it is that insofar as the community's affairs are governed by laws based on Parliament's authority, they must be contained in statutes or in other instruments having the authority of statute. I can find nothing in the Act entitling the Minister to say how the Tribunal's discretion in determining the interest to be served is to be exercised. The case seems to me distinguishable from Bread Manufacturers of New South Wales v. Evans (1981) 56 ALJR 89, where a statutory tribunal operated subject to the Minister's veto and there was, therefore, a close connection between their respective functions; they were truly complementary. But according to one of the judgments in that case, in determining the extent to which a statutory tribunal may act upon a Minister's views:
   

"One must take into account the particular statutory function, the nature of the question to be decided, the character of the tribunal and the general drift of the statutory provisions in so far as they bear on the relationship between the tribunal and the responsible Minister, as well as the nature of the views expressed on behalf of the Government". (99, 100)

1. In my opinion, one is, as to this statute, entitled to take into account the Tribunal's past course of practice. In its Report, the Tribunal referred to a statement made by a previous Tribunal in a major report delivered in 1978:
   

"As indicated in relation to previous inquiries, the Tribunal regards ministerial statements and planning guidelines as 'an essential part of the framework' within which it conducts its inquiries (ABT. Public Broadcasting Licence Inquiries, 1978, 6)".

1. As the 1978 statement illustrates, the Tribunal has, with some fluctuations of degree over the years, tended to respond to and take notice of policy enunciated as in the guidelines here in question. It is possible to be too much influenced, in determining the propriety of its doing so, by the notion that the Tribunal is to be assimilated to a Court. No-one would ever expect a Court properly so called to apply doctrines contained only in a Ministerial speech, in deciding cases before it; if a Court did so, it would not be worthy of its name. A more modest degree of independence is expected of a Tribunal such as the present. To one accustomed to reading Court judgments, the absence from the Tribunal's Report of any consideration of the possibility of entertaining a criterion other than that mentioned in a document issued by the Minister must seem curious; other factors must, one would think, be relevant to the decision to be made.

2. But the statute has often been amended. For example, s.125D, setting out the Minister's general functions, was amended in 1985, 1987 and 1990; one might have expected, if the Tribunal's past responsiveness to expressions of the Ministerial will did not accord with the legislation's true intention, that an amendment might have been made to clarify the Tribunal's duties. These considerations support the view that the Tribunal's having applied, in rather modified form, what it believed to be Ministerial policy does not in itself give rise to any illegality.

1. The other aspect of the matter, referred to above, is whether the decision is vitiated by the Tribunal's failure to consider the characteristics of the applicants (including the services each offered) from the point of view of the criteria set out in s.83C or otherwise. I have already expressed the view that it would have been reasonable, in the circumstances, to consider those characteristics, the advantage of doing so being that the public interest might be better served by an excellent service meeting a need than by a poor service not meeting a more urgent need. (I do not suggest that this was likely to be the outcome in the present case, but speak generally.)

2. Since the statute does not itself say what are the considerations to be taken into account in exercising the function of determining the interest to be served, the question arises whether the Tribunal had no choice but to take into account matters in addition to urgency of social need: Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 162 CLR 24 at 39. Consideration of this question, with reference to a rather similar problem, is to be found in The Queen v. The Australian Broadcasting Tribunal, Ex Parte 2HD Pty. Ltd. (1979) 144 CLR 45. The section of the Broadcasting and Television Act 1942 there considered empowered the Tribunal to consent to transfer of a certain sort of licence, but like s.81A(4) of the Act, did not say what the relevant considerations were. The Court remarked:
   

"In the absence of some positive indication of the considerations on which a grant or refusal of consent is to depend, the discretion is 'unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view' ...". (49)

The Court went on to hold that the Tribunal was entitled to take into account the public interest.

1. More generally, it is now clear that there is no invalidity on the ground in question unless the Tribunal has ignored a matter the law required it to consider, or considered a matter the law required it to ignore. It is true that the reader of the Preliminary Report may be given the impression that its author was unconscious of the possibility that criteria other than those laid down in Ministerial statements and the like could be considered, in exercising the statutory discretion. (The expression "author" is used because the Report refers to Mr Westerway, who signed it, in the third person.) One would have had more confidence that the discretion was properly exercised if there had been some reason given for excluding from consideration matters at which commonsense, as opposed to the law, might seem to have required the Tribunal to look. In paragraph 77 of the report is to be found this:
   

"The Tribunal found these arguments unconvincing ... largely because the argument was directed towards the alleged characteristics of a particular applicant (BIMA), rather than to the characteristics of an indigenous radio service".

The passage certainly implies that the characteristics of applicants were thought to be irrelevant, but gives no reason for that view. To find a reason, one tends to turn back again to paragraph 9, which I have quoted above. There, after referring to Ministerial statements of no real consequence, the author of the report says:

"Apart from these ministerial statements, there is little explicit guidance for the Tribunal in specifying a special interest. The Planning Guidelines refer to 'major social need consistent with public policy' (ibid. 5) but, although the Minister has indicated that there will be a review of 'how ... needs criteria might best be articulated' (ibid, 5), this review is yet to be completed".

This suggests the possibility that the report's author believed that the Tribunal could not work out for itself criteria to guide its decision. The question which is troubling is whether, as some readers of this material might be tempted to think, the author was unconscious of the obligation (Parliament having left the discretion unfettered) to devote attention to the question of what should be taken into account in reaching a decision, rather than to assume that nothing could be looked at if not mentioned in guidelines or some such documents. Although the point is not easy, I have come to the conclusion that one should not treat the lack of any discussion of the scope of the discretion as evidence that the author of the report did not appreciate its width. I am not prepared to find that he did not appreciate that the legislature had chosen to leave to the Tribunal the selection of the criteria to be applied, having regard to the purpose of the relevant provisions and that of the Act as a whole. Despite feeling some unease on the matter, engendered by the language of the report, I have come to the conclusion that this part of Family Radio's case fails.

Natural Justice

1. My general conclusion is that the Tribunal failed to comply with the rules of natural justice in some respects, but those failures do not, in the circumstances, bring the applicant success.

2. The first complaint is one which seems to me to have little substance. It is said, in effect, that the Tribunal tended to brush aside attempts by the applicant to ventilate the propriety of the Tribunal's actions in allowing applicants other than Family Radio additional time to apply for a licence. The complaint is directed principally against BIMA, which put in an incomplete application within time and supplemented it a little later. It was plainly within the Tribunal's power to permit this. That appears from the Australian Broadcasting Tribunal (Inquiries) Regulations 1986, Regulation 4(3):
   

"A person may, with the consent of the Tribunal and subject to such conditions (if any) as the Tribunal specifies, make an application in a form other than the appropriate approved form".

Family Radio wished to have a hearing on this question to re-open the Tribunal's decision, but that was refused. It is my opinion that the rules of natural justice do not require that the Tribunal permit a hearing on every point of which any party desires to make an issue, however slim the prospects of success. What the Tribunal has done, I infer, is to treat Family Radio's attempt to raise this point as futile and, in my opinion, it was entitled to do so.

1. The second question is whether the rules of natural justice were breached in the Tribunal's treatment of certain legal objections which Family Radio wished to make. The strength of this point depends upon the Tribunal's having said, at a procedural hearing on 3 August 1989, that the objections would be dealt with "at the hearing", referring to an oral hearing intended to be conducted later in that year. There was some inconsistency in what the Tribunal said; towards the end of the hearing, mention was made of the possibility that the points would be dealt with before the oral hearing, on the basis of written outlines to be exchanged.

2. I think a misunderstanding has arisen. The fact is that the Tribunal said (for example) that after documents were exchanged, there might be "another exchange of documents as a second round ...". Then the Tribunal added:
   

"If we cannot resolve it at that stage, we would have to resolve it in the oral proceedings at the hearing".

The requirements of natural justice are flexible and the Tribunal has a discretion as to how it should proceed. Although the lack of clear direction was unfortunate, it does not appear to me that the mode whereby the Tribunal decided the preliminary legal objection caused any substantial unfairness.

1. The next point taken is that an interrogatory (No. 33) directed to the fitness of BIMA as an applicant was not required to be answered, and it is said that the Tribunal's whole treatment of the issue raised by the interrogatory was unfair. In my opinion, the question has become academic, from the point of view of compliance with the requirements of natural justice. Although there is weight in Family Radio's criticisms of the Tribunal's action, the issue under s.83C was not in the end dealt with, for the reasons explained above. That is, the quality of particular applicants was treated as irrelevant in arriving at a determination of the interest to be served. In those circumstances, it is my opinion that any breach of the requirements of natural justice as to interrogatory 33 and the issue raised by it produced no practical consequences and no relief should be based upon it.

2. The last natural justice complaint which I will deal with is the withholding of a "media analysis" by one Gibson. At the oral hearing, on 11 and 12 December 1989, the Tribunal was in possession of a document prepared for the Tribunal by Mr Gibson; it dealt with a matter which was of central importance and it is plain that a mistake was made in not distributing it to the parties before the oral hearing. No explanation of that appears, but it was distributed after the hearing and an opportunity afforded to make submissions about it. Although, in my opinion, the error was a serious one, the harm done was sufficiently remedied. Comprehensive oral hearings are not necessarily required in every matter, to achieve justice: see the discussion in Aronson and Franklin, Review of Administrative Action at pp 159 et seq.

3. Another category of questions was raised as to natural justice, relating to failure to supply copies of some documents, but in my opinion that was of no real consequence and does not require discussion.
   Bias

4. Family Radio says that the Tribunal so acted as to give rise to a reasonable apprehension of bias; actual bias is not alleged. It relies upon a series of incidents rather than any single act or omission. Those which have most weight are as follows.

5. It was submitted that the Tribunal gave the impression that the "oral hearing" would include consideration of all questions, not merely determination of the interest to be served. Having studied the transcript of the directions hearing, I sympathise with Family Radio's position. If the intention was that the oral hearing would deal only with the determination of the interest to be served, that was by no means made clear. Nor did the Tribunal say, at the initial directions hearing, that the parties need not concern themselves with the question of the criteria for grant of a licence. It is true that the Tribunal mentioned that the interest to be served would be decided first; but that was consistent with the possibility that the hearing would deal with all issues between the applicants, following which two decisions would be given, one as to the interest to be served and the other (perhaps after gathering further information) as to which applicant, if any, had succeeded. The Tribunal did not, perhaps, appreciate that it was important, in order to avoid wasted effort, to make and enunciate a clear decision as to the way in which matters should proceed. If the intention was to treat the qualities of the applicants as irrelevant at the first stage of the inquiry, the directions should have been moulded accordingly. Plainly they were not: for example, it was not suggested that the argument concerning BIMA's answer to interrogatory 33 had nothing to do with the matter with which the Tribunal was then concerned. Nor, if the Tribunal had followed a course designed to minimise trouble and expense, would it have been necessary for the parties to discover (as they did) masses of material as to issues other than the interest to be served.

6. But I do not regard this as necessarily indicative of bias. The suspicion entertained by some of those associated with Family Radio is that there was a change of mind: the Tribunal began to realise that if BIMA was to succeed, it was desirable to defer consideration of its fitness to hold a licence and to ensure that (as a practical matter) it alone could succeed, by determining the interest to be served separately. I am not satisfied that the Tribunal did change its mind. It is just as likely that the rather unfortunate procedure followed was a result of lack of foresight and consequently inappropriate procedural directions.

7. Family Radio's counsel argued that the Tribunal's handling of interrogatory No. 33 gave cause for grave concern. It is explained above under the heading "Natural Justice" that an interrogatory (No. 33) as to BIMA's fitness to hold a licence was not required to be answered. It is necessary to explain what happened, in more detail. It has to be conceded that the Tribunal's treatment of the point was less than satisfactory, but the more difficult question is whether the Tribunal's conduct gave rise to a reasonable suspicion of bias: R. v. Commonwealth Conciliation and Arbitration Commission; Ex Parte The Angliss Group (1969) 122 CLR 546 at 553-4; see also Kaycliff Pty. Ltd. v. Australian Broadcasting Tribunal (1989) 90 ALR 310 at 318, 319.

8. The interrogatory inquired as to criminal convictions of persons associated with BIMA. The response was an objection to answer and a statement that "full particulars have been provided to the Tribunal on a restricted access basis". Family Radio complained to the Tribunal, which replied by letter, disclosing that the Tribunal had been provided by BIMA with "additional information in the spirit of candour".

9. At the final oral hearing, according to Family Radio's case, the impression of partiality was enhanced. After BIMA's representative at the hearing referred to the terms of interrogatory 33, there followed this exchange:
   

"Mr Westerway: In that particular case, the short answer is no.

Mr Taylor: Yes, of course. It is a question that in my submission should never have been asked and it does reflect on the applicant".

1. Family Radio complained that the Tribunal "allowed" this suggestion by Mr Taylor. It is true that the suggestion had no substance; BIMA's representative subsequently admitted that the interrogatory was quite proper.

2. It is difficult to understand why the Tribunal treated this subject so tenderly. It appears that there were some offences to be disclosed, but there seems to have been nothing about them justifying special confidentiality. But, in my view, the way in which the interrogatory 33 question was handled by the Tribunal would not give any substantial impression of bias. It is true that Mr Westerway's intervention "the short answer is no" was not only apparently inaccurate, but might have tended to suggest some partisan feeling. It is not every untoward remark, however, which vitiates administrative decisions, nor is there any real weight in the complaint that the Tribunal should not have permitted the criticism of Family Radio for having asked interrogatory No. 33. A groundless accusation of improper conduct may sometimes be ignored by a sensible Tribunal, as not worth consideration.

3. In forwarding its Preliminary Report to the applicants, the Tribunal wrote:
   

"The Tribunal's decision on the nature of the special interest does not indicate that the Tribunal endorses any particular applicant. Neither does this decision automatically exclude any applicant. The Tribunal invites all applicants (if they so wish) to now review their applications in light of the nature of the special interest".

1. It is not easy to see what point there was in writing this, in the circumstances. Nor would one expect it to have had its (presumably) intended effect of softening the blow, so far as the disappointed applicants were concerned. But I am firmly of opinion that it is by no means indicative of bias, nor could it give rise to a reasonable suspicion of bias.

2. The only other matters of any consequence which are relied on have been mentioned under the "Natural Justice" heading of these reasons. The evidence shows that the Tribunal communicated its intention "to determine initially the nature of the particular special interest or interests for which the licence will be granted". The affidavit of Mr F.E. Carroll says that was done -
   

"in the same month that The Honourable Minister for Transport and Communication announced at a public meeting of the Public Broadcasting Association of Australia the Minister's preference for Aboriginal groups".

1. I do not have the text of the Minister's statement; presumably I am to infer that the Tribunal's action followed upon that statement, but that is uncertain. I do not think that in these circumstances I am justified in concluding that a reasonable suspicion would be created that the Tribunal was biased. Nor do all the bias points taken together, including those discussed above with respect to the natural justice complaint, amount to enough to ground a finding of reasonable apprehension of bias. The Tribunal is open to some criticism for not having announced at an earlier stage that it wished to defer all consideration of the qualities of applicants, for having supported BIMA with respect to the question of past convictions in what seems to me an odd way, and in some other respects. With somewhat less than complete confidence, I have come to the conclusion that the applicant's case as to this aspect of the matter must also fail.

2. The application will be dismissed. I have in mind that no costs should be awarded, the principal reasons being, first, that the applicant is privately funded, whereas the respondents rely on public funds and, secondly, that the Tribunal's procedures unnecessarily increased the cost of the applicant's attempt to gain a licence.