Herald-Sun Pty Ltd v Australian Broadcasting Tribunal

[1984] FCA 429

Re: HERALD-SUN TV PTY. LIMITED; AMALGATED TELEVISION SERVICES PTY. LIMITED;
TCN CHANNEL 9 PTY. LIMITED; COUNTRY TELEVISION SERVICES LIMITED; NBN LIMITED;
GENERAL TELEVISION CORPORATIONS PTY. LIMITED; BRISBANE TV LIMITED; MACKAY
TELEVISION LIMITED; ROCKHAMPTON TELEVISION LIMITED; WIDE BAY-BURNETT
TELEVISION LIMITED; TELEVISION BROADCASTERS LIMITED; TASMANIAN TELEVISION
LIMITED; NORTHERN TELEVISION (TNT9) PTY. LIMITED; GERALDTON TELECASTERS PTY.
LIMITED and SOUTHERN CROSS COMMUNICATIONS LIMITED
And: AUSTRALIAN BROADCASTING TRIBUNAL
No. NSW G241 of 1984
Administrative Law
57 ALR 309

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
McGregor J.
Davies J.
Morling J.

CATCHWORDS

Administrative Law - judicial review - broadcasting and television - Determination of the Australian Broadcasting Tribunal specifying Children's Television Standards - validity of certain provisions of the Standards - "ultra vires" - the meaning of "standards" in s.16(1)(d) of the Broadcasting and Television Act 1942 - powers and functions of the Tribunal.

Administrative Decisions (Judicial Review) Act 1977 s.5

Broadcasting and Television Act 1942 ss. 16, 17, 99, 101, 132.

HEARING

SYDNEY

#DATE 14:12:1984

ORDER

1. The appeal is dismissed.

2. The appellants are to pay the respondent's costs.

JUDGE1

HERALD-SUN TV PTY. LIMITED, AMALGAMATED TELEVISION SERVICES PTY. LIMITED, TCN CHANNEL 9 PTY. LIMITED, COUNTRY TELEVISION SERVICES LIMITED, NBN LIMITED, GENERAL TELEVISION CORPORATIONS PTY. LIMITED, BRISBANE TV LIMITED, MACKAY TELEVISION LIMITED, ROCKHAMPTON TELEVISION LIMITED, WIDE BAY-BURNETT TELEVISION LIMITED, TELEVISION BROADCASTERS LIMITED, TASMANIAN TELEVISION LIMITED, NORTHERN TELEVISION (TNT9) PTY. LIMITED, GERALDTON TELECASTERS PTY. LIMITED and SOUTHERN CROSS COMMUNICATIONS LIMITED (appellants) appeal against a decision of a learned Judge of this Court given on 19 July 1984 in which the AUSTRALIAN BROADCASTING TRIBUNAL (Tribunal) was the respondent.

It appears that on 27 March 1984 the Tribunal made a Determination specifying new Children's Television Standards, new Pre-School Children's Television Standards and amended Television Program Standards effective, in each case, from 1 July 1984. The Determination was publicly released on 2 April 1984 together with a supporting document setting out the Tribunal's reasons.

By application dated 30 April 1984 pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Judicial Review Act) the 15 appellants being commercial television licensees challenged the validity in law of some of the provisions of the Children's Television Standards contained in the Determination referred to above, viz. the paragraphs identified in certain documents as CTS 3(2)(b), CTS 8, CTS 9(2), CTS 9(3), CTS 10, CTS 13(1), CTS 13(4), CTS 13(5) and CTS 33. The Application read -

"APPLICATION FOR AN ORDER FOR REVIEW

The application is to review the decision of the Respondent dated 27 March. 1984 and conveyed to the Applicants on and after 2 April. 1984, whereby it determined what purports to be Childrens Television Standards as set out in that Decision.

PARTICULARS

The application for review is of part of the decision only, namely the provisions of CTS 3(2)(b), CTS 8, CTS 9(2), CTS 9(3), CTS 10, CTS 13(1), CTS 13(4), CTS 13(5) and CTS 33, insofar as those provisions contain what purports to be a standard which depends upon the opinion or decision of the Tribunal rather than upon an objective criterion.

The said Decision of the Respondent purports to be authorised by the Broadcasting and Television Act, 1942 (the Act).

The Applicants are persons aggrieved by the Decision within the meaning of the Administrative Decisions (Judicial Review) Act because:-

(a) the applicants all hold commercial television station licenses under Part III B of the Act.

(b) their interests as the holders of such licenses are adversely affected by the Decision, in that it purports to lay down standards with which, if valid, the applicants are required to comply.

The grounds of the application are:

1. The Respondent did not have jurisdiction to make the decision.

2. The decision was not authorised by the enactment in pursuance of which it was purported to be made.

3. The making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purportedly made, in that:

(a) the Respondent took irrelevant considerations into account in the exercise of the power:

(b) the Respondent failed to take relevant considerations into account in the exercise of the power;

(c) it was an exercise of a power for a purpose other than that for which it was conferred;

(d) an exercise of a power in such a way that the result of the exercise of the power is uncertain.

4. The decision involved an error of law.

5. The decision was otherwise contrary to law.

The Applicant claims:

1. An order quashing the decision.

2. An order suspending the operation of the Decision pending the final decision of the Court on this Application.

3. Such further or other order as to this Honourable Court appears fit.

4. Costs."

The Tribunal is constituted by Division 1 of Part II of the Broadcasting and Television Act 1942 (the Act). Division 2 of the Act (which includes sections 16 and 17) deals with the powers and functions of the Tribunal. Relevant sections of the Act include -

"16. (1) The functions of the Tribunal are -

(a) to grant, renew, suspend and revoke licences;

(b) to authorize transactions in relation to licences under section 89A:

. . . .

(d) to determine the standards to be observed by licensees in respect of the broadcasting or televising of programs;

. . . .

(f) to determine the hours during which programs may be broadcast or televised by licensees;

. . . .

(i) to perform such duties and exercise such powers as are imposed or conferred upon it by this Act and the regulations.

. . . .

17. (1) For the purpose of exercising its powers and functions under this Act, the Tribunal shall have power to make such orders, give such directions and do all such other things as it thinks fit.

(2) (3) . . . .

(4) A person shall not contravene or fail to comply with any provision of an order made by the Tribunal which is applicable to him.

(5) A direction given by the Tribunal may be given orally or in writing.

. . . . 99.(1) A licensee shall provide programs and shall supervise the broadcasting or televising of programs from his station in such manner as to ensure, as far as practicable, that the programs are in accordance with standards determined by the Tribunal.

(2) If the programs broadcast from a commercial broadcasting station or televised from a commercial television station are not, in whole or in part, in accordance with the standards determined by the Tribunal, the licensee shall, if so directed by the Tribunal, vary the programs so that they shall conform with those standards.

(3) The Minister may, from time to time, by notice given by telegram or otherwise in writing, prohibit a licensee from broadcasting or televising any matter, or matter of any class or character, specified in the notice, or may require the licensee to refrain from broadcasting or televising any such matter.

(4) A licensee shall, upon request by the Tribunal, make available to the Tribunal or an authorized officer any writing, record, film or other material or device used in connexion with or for the purposes of a program.

. . . .

101. Where the Tribunal has reason to believe that any matter (including an advertisement) which it is proposed to broadcast or televise is of an objectionable nature, that matter shall be subject to such censorship as the Tribunal determines.

. . . .

132.(1) Any person who contravenes, or fails to comply with, any provision of this Act or the regulations, or any condition of a licence granted or deemed to have been granted under this Act, or fails to comply with a direction under the regulations, unless otherwise provided by this Act, is guilty of an offence against this Act by virtue of this section.

. . . . "

The Determination by the Tribunal of 27 March 1984 included a section headed "Children's Television Standards" (CTS), the subject of the application for review, which inter alia stated:-

"'Australian Children's Drama' means a program which meets the requirements for Australian-produced children's television drama in CTS 13;

. . . .

'C program' means a program which meets the criteria of suitability for children in CTS 2 and has been so classified by the Tribunal under CTS 3;

'children' are:

(a) in standards 1 to 17: people older than five years and younger than fourteen years; and

. . . .

'C time' means the period from 4.00 pm to 5.00 pm on a weekday;

. . . .

CRITERIA FOR C PROGRAMS

2. A C program is one which:

(a) is designed specifically for children older than 5 years and younger than 14 years;

(b) is designed to entertain children;

(c) is well produced technically and artistically;

(d) can be easily understood and appreciated by children;

(e) fulfils some special need of children;

(f) contributes to the social, emotional or intellectual development of children;

(g) is appropriate for Australian children, not assuming too much of the culture, dialect or environment of some other country; and

(h) is not outdated in content or in technical or artistic production.

PROGRAMS FOR C TIME

3(1) A licensee may not transmit any programs except C programs during C time (4.00 to 5.00 pm Monday to Friday).

(2) During C time a licensee may transmit only programs:

(a) which are C programs as defined in CTS 2; and

(b) representative samples of which have been classified by the Tribunal as complying with the C program criteria in CTS 2.

. . . . DURATION OF C CLASSIFICATION

8(1) The classification of a program under CTS 3 lasts for 5 years from the date on which it was given or last renewed, unless the Tribunal otherwise determines at the time of classification.

(2) On written application, the Tribunal may at any time renew a C classification for up to 5 years from the date on which it is renewed.

. . . .

STATION OF ORIGIN C

9(1) A 'station of origin C' program is a program which meets the C program criteria in CTS2 in relation to children in the area served by the station for which it was produced, but does not meet the criteria in relation to all Australian children, because of the local associations, local content or local character of the program.

(2) When the Tribunal has classified a program as 'station of origin C', that program is deemed to be a C program when transmitted from the station for which it was produced.

(3) A 'station of origin C' program will be deemed to be a C program when transmitted by a station other than the station for which it was produced only if the Tribunal has, on written application, determined that it is applicable to children served by that other station.

PROVISIONAL C

10(1) When a person submits to the Tribunal a written proposal for:

(a) a C program other than an Australian Children's Drama, accompanied by a pilot episode or by a videotape presentation indicating the nature of the program; or

(b) an Australian Children's Drama.

then the Tribunal may classify the proposed program or the pilot episode or both as:

(i) 'provisional C' if the Tribunal is satisfiel that it embodies a reasonable attempt to meet the C program criteria in CTS 2; or

(ii) 'provisional station of origin C' if the Tribunal is satisfied, having regard to the resources of the station for which the program will be produced, that it embodies a reasonable attempt to meet the C program criteria in CTS 2, but that in the completed program the criteria are unlikely to be met in relation to all Australian children because of the local associations, local content or local character of the program.

(2) The classification of a proposed program as 'provisional C' or 'provisional station of origin C' lasts for 3 months from the date on which it was given or last renewed, unless the Tribunal otherwise determines at the time of classification.

(3) . . . .

(4) When the Tribunal has classified a pilot episode of a proposed program as 'provisional C' or 'provisional station of origin C', the pilot episode will be deemed to be a C program until the classification expires.

. . . .

AUSTRALIAN CHILDREN'S DRAMA

13. In these standards an Australian Children's Drama is a television program which meets all the following requirements:

(1) the program must be classified by the Tribunal as a C program;

(2) the program must be either:

(a) a single program not less than 24 minutes long; or

(b) a series in which each episode is not less than 24 minutes long;

(3) the program must have been made after 30 June 1981;

(4) the program must in the opinion of the Tribunal be a dramatic work (a fully scripted play which has been produced for use on television, in which the dramatic elements of character, theme and plot are introduced and developed so as to form a narrative structure); and

(5) the program must in the opinion of the Tribunal have a significant Australian content, having regard to:

(a) its subject matter;

(b) the place where it was made;

(c) the nationalities and places of residence of the people who took part in the making of the program (including authors, composers, scriptwriters, producers, directors, actors, editors and technicians).

. . . .

REVIEWS OF C CLASSIFICATION DECISIONS

33. A person may apply to the Tribunal for review of a decision about the application of these standards to a program by the delegate of the Tribunal. Information about how to apply for review is contained in Tribunal Practice Note PRNOI ('Children's Programs - Classification and Review')."

By PRACTICE NOTE Number: PRN 01, effective 1 August 1983, it was provided -

"2.1 An application for a 'C' classification (or one of the qualified 'C' classifications outlined in paragraph 4.1(a)) in respect of a program may be made by any person on Form ABT 62 available from all Tribunal offices. The completed form should be submitted to the Secretary of the Tribunal, accompanied by the following:

(a) For a completed program: the whole program if a one-off program, or three representative sample episodes of a program comprising a number of episodes, which are true to type of the content of all other episodes of the program;

(b) For a proposed Australian produced children's program other than a drama program: a written proposal containing a full script of one episode and outlines of two other episodes, and a detailed treatment describing the artistic and technical aspects of the program, together with a pilot episode of the program, or a tape presentation indicating the nature of the program, if the application is for a provisional 'C' classification.

(c) For a proposed Australian produced children's drama program: a written proposal containing the full script if a one-off program, or, a full script of one episode and outlines of two other episodes if a program comprises a number of episodes, and a detailed treatment describing the artistic and technical aspects of the whole program.

. . . .

3.1 The Tribunal's power to classify children's programs is delegated, pursuant to section 15D of the Act, to one Member of the Tribunal, hereafter called "the Member".

3.2 Every application for 'C' classification will be considered at a meeting of the Member and the Committee. Meetings are held monthly in various cities and a schedule of such meetings is publicised well in advance.

3.3 The applicant may appear in person, or be represented by an agent, at a meeting of the Member and the Committee. On occasion, the applicant may be requested to attend the meeting. Meetings are conducted informally, and applicants are free to submit any additional information which will assist the Member and the Committee."

Clause 4 deals with decision on the application. Clause 5 provides for an application for review of the decision and a hearing of that application followed by an affirmation or variation of the decision.

The learned primary Judge in his Reasons for Judgment stated that the meaning of the word "standards" in para.(d) of s.16(1) of the Act was the major issue in the application. For reasons he gave he dismissed the application.

In reaching his conclusions his Honour considered there was no reason to confine the word "standards" to negative stipulations or to exclude qualitative requirements involving subjective assessment. He was of the opinion that the legislature appeared to have intended the Tribunal to have a role in raising the standards of programs. He considered there was no warrant for reading the word "standards" as being limited to specifications not involving any element of subjective assessment. He rejected the argument attributed to the applicants (appellants) that it was undesirable to interpret the word "standards" in such a way as to subject them to risk from the application against them of criteria which depended upon subjective assessment and in relation to which minds might differ. He said, in effect, that if the purpose of a statute required or supported the grant of a licence subject to a condition that was dependent upon subjective assessment, such a condition was valid. In his opinion the Tribunal acted upon the view that the public interest required adoption of positive qualitative criteria requiring subjective assessment; to restrict the width of the word "standards" so as to obviate or minimise the risk to licensees would be to reverse the scheme of the Act, to sacrifice the public interest in the adequacy of programs to the property interest of those who provide programs. He said that in determining what the Parliament intended to include in the word "standards", the dominant consideration must be the nature of the activity being subjected to regulation; it was not possible to approach the regulation of the broadcasting and television industries in the same way as the fixing of working hours or prices of goods. He referred to the argument which, so he said, was to the effect that Standards were bad insofar as they required preclassification of C programs and Australian Children's Drama by the Tribunal; such a requirement could not, so the argument ran, be a "standard". He noted evidence to which his attention was drawn that over many years the Tribunal and its predecessor, the Australian Broadcasting Control Board, had purported to require television stations to observe limitations on the times at which certain films might be shown. He concluded that there was no substance in the contention that the requirement of preclassification of C programs and Australian Children's Drama was beyond the power of the Tribunal in determining standards. He dismissed the application.

Senior counsel for the appellants submitted that the impugned document headed "CHILDREN'S TELEVISION STANDARDS", particularly CTS 3(2)(b) under the heading "PROGRAMS FOR C TIME", had not laid down a "standard" within the meaning of s.16(1)(d) of the Act which described a function committed to the Tribunal. He submitted that this primary submission was reinforced by the scheme of the Act and the elaborate series of checks and balances which it contained to determine respective rights of the Tribunal and licensee. In effect, he said, CTS 3(2)(b) was ultra vires. In his submission the requirement of ad hoc certification from time to time was simply not a standard; any superadded requirement about certification could not be part of a standard. He submitted that, on a proper construction of "standard", whether or not the Tribunal was obliged to give a classification if it decided that the CTS 2 criteria had been met, the requirement for classification was bad. He referred to the definition of "standard" in the Shorter Oxford Dictionary. He argued that to say of something that "you must simply meet with our satisfaction from time to time" does not fulfil that definition which read -

"A definite level of excellence, attainment, wealth, or the like, or a definite degree of any quality, viewed as a prescribed object of endeavour or as the measure of what is adequate for some purpose."

(Underlining is mine).

He added that a requirement that a program meet with the Tribunal's satisfaction did not convey any definite level of excellence, degree of any quality, anything by which one could decide what was adequate. He said he did not submit that in order to have a standard there could be no question of subjectivity. Rather, the appellants argued that if the criterion was "something which the Tribunal will give ad hoc approval to from time to time" this was not a standard because it did not set out any criterion capable of prior appreciation, analysis and assessment by a person bound to comply with it. He said what was here required or provided was not a standard: if you said to a person you must produce things which please me from time to time this would not be a measure of quality. What was merely an arbitrary expression of approval from time to time could not by definition be a measure of quality. He submitted that the moment compliance or non-compliance with a measure was made dependent upon the individual opinion of the law giver (as it were) the measure was deprived of the quality of a standard. He referred to King Gee Clothing Co. Pty. Ltd v. The Commonwealth (1945-1946) 71 C.L.R. 184 at pp.194-197 per Dixon J., as he then was: Cann's Pty. Ltd v. The Commonwealth (1945-1946) 71 C.L.R. 210: Television Corporation Ltd. v. The Commonwealth (1963-1964) 109 C.L.R. 59 per Kitto J. at p.69.

Senior counsel for the Tribunal submitted that the word "standard" had a wide meaning, directed to the televising of programs; so it dealt with the standard of programs, the excellence of projection, broadcasting, the whole "gambit" of activities that went towards there being a successful television transmission. He submitted, referring to Austarama Television Pty. Ltd. v. Australian Broadcasting Control Board 27 F.L.R. 291, that the word "standards" had been used in a wide sense in equivalent legislation or had been given a wide operation. He submitted that CTS 3(2)(b) could be justified under s.16(1)(i) of the Act or s.17. He referred to the Tribunal's so-called "Practice Note" effective from 1 August 1983 referring to the application for 'C' classification and the submission of a whole program or representative samples if the program was to provide a number of episodes. There was to be consideration of the application and decision on it, review of the decision and a publication of reasons. He submitted, in effect, that these procedures ensured fairness and certainty to the advantage of the licensee. The system, he said, had been used in the industry for many years. He referred to Ellis v. Dubowski (1921) 3 K.B. 621: Mills v. London County Council (1925) 1 K.B. 213.

I have considered though have not attempted fully to re-state all the arguments of counsel, including written submissions delivered after oral argument concluded.

The Practice Note to which reference has been made above and which was referred to in evidence and argument, sets out the procedures to be adopted by the Tribunal for the classification of children's programs and the review of classification decisions. It is unnecessary to refer to them in any further detail.

The authority of the Tribunal to determine the standards to be observed by licensees in respect of broadcasting or televising of programs has not been, and could not be (having regard to e.g. s.16(1)(d) of the Act), questioned. The sub-paragraphs 2(a) to (h) in the "CRITERIA FOR C PROGRAMS" have not been attacked as unreasonable or not within the powers committed to the Tribunal by the Act s.16(1)(d). They themselves provide indicia of C programs. The word "standards" is correctly applied to them collectively; they provide "a determined means of comparison or evaluation". See Ballentine's Law Dictionary, 3rd ed. (1969), at p.1208. It is noted that expressions in CTS 2 do themselves import a degree of subjectivity; and, as I have already mentioned above, no objection to an element of subjectivity in standards or their application was made in argument. I suggest that the words of Beaumont J. in Saatchi & Saatchi Compton (Vic) Proprietary Limited v. Australian Broadcasting Tribunal, unreported, 23 November 1984 at p.11-

" . . . the ordinary meaning of "standards" and its context suggest that it is the quality of the product, rather than its quantity, that is the subject matter of the Tribunal's power of determination under s.100(4) . . . . "

support this interpretation.

It is well known that radio and television programs are prepared in advance of their being broadcast or exhibited. The Tribunal, by the procedure laid down in the Practice Note, required the submission to it of certain material for the purpose of classification. Whether so intended or not this would assist to discover failure - if there were failure - of the program to reflect the criteria in CTS 2 (and to the degree and quality required). No doubt in that process of classification the Tribunal would have regard to the content of CTS 2. To fail to take advantage of the period which may elapse between the program's completion (or partial completion) and its being put to air would mean that the Tribunal did not have available to it an obvious opportunity to evaluate the response by the producer or the licensee to established criteria before any inadequacy had been communicated to the audience - in this case one for whom there ought to be special safeguards. The provisions of CTS 3 would assist the Tribunal to ensure that, in terms of s.99 of the Act, the licensee was providing and would provide programs in accordance with standards determined by the Tribunal. They would also facilitate a continuing assessment of a program's production through comparison of the samples submitted as representative of the program as a whole and episodes later being put to air. A failure to evaluate programs prior to transmission might well be thought to be inconsistent with the implementation of a policy of fixing standards when it has been said that -

"From the elaborate provisions made by the Act in relation to the grant, renewal, revocation and suspension of licences, the limitation on the ownership of shares, the determination of programme standards and the extensive role which it gives to the Tribunal in connection with these matters, we infer that it is the purpose of the Act to ensure that commercial broadcasting is conducted in the interests of the public."

See The Queen v. Australian Broadcasting Tribunal; Ex parte 2HD Pty. Ltd. (1979) 144 C.L.R. 45 at p.53. The submission of the material described in the Practice Note (supra) was not said to produce any technical or administrative problems. The procedures envisaged by CTS 3 are, I suggest, not such an extreme exercise of the power to control conditions or standards as was upheld in Austarama Television Pty. Ltd. v. Australian Broadcasting Control Board (supra). I observe that classification might also assist the licensee to avoid possible transgressions in its presentation of a program.

It may not be correct to describe, as did senior counsel for the appellants, the provisions of CTS 3 as an erroneous attempt to prescribe a standard. Rather they allow an evaluation or assessment to be made as to whether the program forecasted by the material supplied in accordance with the Practice Note Clause 2 will comply with the standards prescribed in CTS 2, attaining the level of achievement envisaged by its paragraphs. If such an evaluation or assessment is qualitative no objection thereby to it, in my view, could be made.

It seems to me that there is a certain harmony in the relationship of sections 16 and 17 on the one hand and that of CTS 2 and 3 on the other. In my opinion the requirement of submission of an application to the Tribunal for classification and the function of classification by it is justifiable as within the power committed to the Tribunal by s.17 of the Act to make such orders or give such directions and do such other things as it thinks fit. The Tribunal may not, of course, exceed the powers and functions which that section, construed by reference to its place in the Act and the Act generally, entrusts to it. In my view the provisions of CTS3 are not in excess of these powers or, as it was put, ultra vires.

Further, it is at least arguable that CTS 3 is also justifiable as a provision assisting the achievement or maintenance of a standard otherwise than by laying down criteria as in CTS 2. See The King v. Galvin; Ex parte Metal Trades Employers' Association (1948-1949) 77 C.L.R. 432 at p.447 where the Court said -

"The word 'standard' is used in several senses. The meaning of the word may vary in accordance with the context in which it is used. The primary idea which the word expresses is that of a measure of quantity or quality fixed or approved by some authority, e.g. . . . . . . standard of behaviour."

(Underlining is mine).

The provisions of CTS 3 prohibit the transmission of programs other than C programs which have been classified as such by the Tribunal during C time. Thus "non" C programs may not be televised between 4.00 p.m. and 5.00 p.m. Monday to Friday. It could be argued that the Tribunal is indirectly determining the hours during which such programs may be transmitted. A power to determine the hours during which programs may be broadcast or televised by licensees is conferred on the Tribunal by s.16(1)(f) of the Act, which recognizes the varying needs of different audiences during screening hours. Section 16(1)(f) was not referred to in detail by counsel in their principal arguments, though it was taken up in later written submissions. By the use of this power the Tribunal could ensure that only material complying with CTS 2 would be exhibited in a specified time bracket.

The appellants' arguments should be considered in relation also to Australian Children's Drama. CTS 13 (4) and (5) use the phrase "in the opinion of the Tribunal" in relation to the program being a dramatic work (as described there) and having a significant Australian content in terms of subject matter, place where made, and nationalities and places of residence of authors and others. A subjective decision additional to classification is called for from the Tribunal. In my view the Tribunal may, consistent with the exercise of the power conferred on it by s.17, require that to qualify as Australian Children's Drama, a C program must meet the definition or description of "dramatic work" and have the content described; and it is also within the ambit of s.17 that a subjective assessment of compliance is made by the Tribunal.

No doubt any opinion which the Tribunal reached would be open to objection as invalid if it were reached otherwise than bona fide, or by adopting impermissible criteria or extraneous considerations. The purpose and intendment of the Act will operate to restrict the considerations which it is within the competence of the Tribunal to entertain, cf. Television Corporation Ltd. v. The Commonwealth (supra) per Kitto J. at p.70. There is no suggestion in The King v. Connell; Ex parte The Hetton Bellbird Collieries Ltd. (1944-1945) 69 C.L.R. 407 that regulations allowing an Industrial Authority to alter rates of remuneration if it was 'satisfied' they were anomalous were impermissible as a legislative act. However, in the process of achieving the state of being satisfied the Authority had not an "absolutely uncontrolled and unlimited discretion with respect to the extent of its jurisdiction". Latham C.J. said at p.432 -

"If the opinion which was in fact formed was reached by taking into account irrelevant considerations or . . . otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed."

See also per Starke J. at p.440; per McTiernan J. at p.450 and Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 A.C. 147, particularly per Lord Pearce at p.196 et seq.; per Lord Wilberforce at p.208. Further authorities are collected in Halsbury's Laws of England 4th ed. vol. 44, p.558.

I consider the provisions in CTS 13(4) and (5) are within the power conferred by s.17(1) whether or not they are also justifiable as providing for Australian Children's Drama additional or further standards: cf. Sinclair v. Maryborough Mining Warden (1974-1975) 132 C.L.R. 473 per Barwick C.J. at p.478 et seq.

In my opinion the provisions of the Determination of the 27 March 1984 are supportable by reference to s.16, s.17 and the purpose of the Act and the functions it attributes to the Tribunal.

I would propose that the appeal be dismissed with costs.

JUDGE2

The functions of the Australian Broadcasting Tribunal are described in ss.16 and 17 of the Broadcasting and Television Act 1942 (Cth) ("the Act") which provide, inter alia,

"16.(1) The functions of the Tribunal are -

(a) to grant, renew, suspend and revoke licences;

. . . . .

(d) to determine the standards to be observed by licensees in respect of the broadcasting or televising of programs;

(e) to determine the conditions subject to which advertisements may be broadcast or televised by licensees;

(f) to determine the hours during which programs may be broadcast or televised by licensees;

. . . . .

(2) In performing its functions under paragraphs (1)(d), (e) and (f) in relation to broadcasting stations or television stations, the Tribunal shall consult representatives of those stations.

. . . . .

17.(1) For the purpose of exercising its powers and functions under this Act, the Tribunal shall have power to make such orders, give such directions and do all such other things as it thinks fit."

In purported exercise of its functions under s.16, the Tribunal has specified children's television standards ("CTS") which read, inter alia,

"1(1) The following definitions apply in these children's television program and advertising standards unless the contrary intention appears:

. . . . .

'C program' means a program which meets the criteria of suitability for children in CTS 2 and has been so classified by the Tribunal under CTS 3;

. . . . .

'C time' means the period from 4.00 pm to 5.00 pm on a weekday;

. . . . .

(6) The steps followed by the Tribunal in classifying programs as 'C' on the advice of the Children's Program Committee, and in revoking and reviewing classifications, are set out in Tribunal Practice Note PRN 01 ('Children's Programs - Classification and Review'), together with information about how to apply for classification of a program and for review of a C classification decision.

CRITERIA FOR C PROGRAMS

2. A C program is one which:

(a) is designed specifically for children older than 5 years and younger than 14 years;

(b) is designed to entertain children;

(c) is well produced technically and artistically;

(d) can be easily understood and appreciated by children;

(e) fulfils some special need of children;

(f) contributes to the social, emotional or intellectual development of children;

(g) is appropriate for Australian children, not assuming too much of the culture, dialect or environment of some other country; and

(h) is not outdated in content or in technical or artistic production.

PROGRAMS FOR C TIME

3(1) A licensee may not transmit any programs except C programs during C time (4.00 to 5.00 pm Monday to Friday).

(2) During C time a licensee may transmit only programs:

(a) which are C programs as defined in CTS 2; and

(b) representative samples of which have been classified by the Tribunal as complying with the C program criteria in CTS 2.

(For the purposes of this paragraph (CTS 3(2)) 'the Tribunal' means the Tribunal Member to whom the power of the Tribunal to make C classification decisions has been delegated, or a quorum of the Tribunal members reviewing a decision made by that Member.)

. . . . .

REVIEWS OF C CLASSIFICATION DECISIONS

33. A person may apply to the Tribunal for review of a decision about the application of these standards to a program by the delegate of the Tribunal. Information about how to apply for review is contained in Tribunal Practice Note PRN 01 ('Children's Programs - Classification and Review')."

The Practice Note PRN 01 provides, inter alia,

"3. CONSIDERATION OF THE APPLICATION

3.1 The Tribunal's power to classify children's programs is delegated, pursuant ot section 15D of the Act, to one Member of the Tribunal, hereafter called 'the Member'.

3.2 Every application for 'C' classification will be considered at a meeting of the Member and the Committee. Meetings are held monthly in various cities and a schedule of such meetings is publicised well in advance.

. . . . .

4.2 After receiving advice from the Committee, the Member will take a decision on behalf of the Tribunal on the classification of the program and inform the applicant by letter. The classification given will not necessarily be that sought by the applicant. . . .

. . . . .

5. REVIEW OF THE DECISION

5.1 Within 21 days of receipt of a statement of reasons under paragraph 4.2, an applicant may apply for a review of the decision made by the Member. An application for review must be in writing and must specify the reason or reasons why, having regard to the 'C' criteria, the applicant considers that the decision should be reviewed.

. . . . .

5.4 The Tribunal will either affirm or vary the decision of the Member. The applicant will be informed by letter of the Tribunal's decision and the reasons for the decision."

An issue in this appeal is whether the provisions in CTS 3 and CTS 33 for the classification of programs as "C" programs and the requirement that programs other than "C" programs may not be televised during "C" time, 4.00 pm to 5.00 pm Monday to Friday, are authorised by ss.16 and 17 of the Act. It is not in dispute, for the purposes of the appeal, that CTS 2 determines standards for children's programs. What is in issue is whether the Tribunal is empowered by the Act to require classification of programs as "C" programs and to determine that programs which are not so classified may not be transmitted during "C" time.

Section 16(1)(d) empowers the Tribunal to determine the standards to be observed by licensees in respect of the televising of programs. The word "determine" is a word of wide meaning and denotes "to decide" or "to settle" rather than "to specify". But the Tribunal must determine standards to be observed by licensees in the televising of programs. The Tribunal is not conferred unlimited power to regulate the conduct of licensees. Section 16(1)(d) does not in terms repose in the Tribunal a power to regulate the conduct of licensees or a power to specify rules to be obeyed. It confers power upon the Tribunal to determine standards to be observed.

In the context of s.16, the word "standards" denotes a measure by which conduct may be judged rather than a rule of conduct. I do not suggest that the standards determined may not be detailed or particular in operation. However, I am of the view that there is a distinction of substance between a power to regulate conduct and a power to determine standards to be observed. It is the latter power which is granted by s.16(1)(d). As Dean Pound said in "Administrative Law" p.101, " . . . the characteristic of a standard is that it must be applied concretely to the circumstances of the time and place." This meaning is confirmed by s.99(1) which provides:

"99.(1) A licensee shall provide programs and shall supervise the broadcasting or televising of programs from his station in such manner as to ensure, as far as practicable, that the programs are in accordance with standards determined by the Tribunal."

That provision imposes upon a licensee a duty to provide programs and to supervise the televising of programs so as to ensure, as far as practicable, that the programs comply with the measures or tests determined by the Tribunal.

If s.16(1)(d) stood on its own, I may have inclined to the view that the determinations in issue strained the authority of the Tribunal. The provision for the classification of programs as "C" programs operates to determine whether the standard enunciated in CTS 2 has been met. Though I would accept that the requirement as to classification is not a requirement which regulates conduct but rather is one which adds a criterion to the CTS 2 standard, its purpose and effect is to determine whether particular programs intended for transmission in fact meet the criteria specified in CTS 2. Moreover, the prohibition against televising in "C" time a program which has not been so classified tends rather to regulate conduct than to formulate a standard for conduct.

However, s.16(1)(b) does not stand on its own. Section 16 provides, in paragraph (f), that the Tribunal may determine the hours during which programs may be televised by licensees. In my opinion, this provision empowers the Tribunal to determine more than the opening and closing hours for television. In my opinion, paragraph (f) enables the Tribunal to determine the hours during which particular types of programs may or may not be televised.

Paragraphs (d), (e) and (f) of s.16(1) are inter-related and a requirement of the Tribunal which affects both standards and hours may be considered in the light of the totality of the authority which the Act confers upon the Tribunal.

In my opinion, the requirement for classification and the requirement that only programs which have been classified "C" may be televised during "C" time are authorised by paragraphs (d) and (f) of s.16(1). The effect of those requirements is both to determine standards and to require that only programs which in fact meet those standards shall be televised during the children's television hours each Monday to Friday. In my opinion, the requirements of CTS 3 are requirements which the Tribunal was authorised to impose.

The above reasoning resolves all issues in the appeal and it is not necessary for me to discuss in detail all the several standards the validity of which were challenged.

Although there is an aspect of the continued operation of CTS 13(4) and (5) and CTS 14 which raises an issue not covered by the above reasoning, CTS 14 was not challenged in the proceedings and I therefore need not deal with it.

In my opinion, the appeal should be dismissed with costs.

JUDGE3

This appeal raises a short but important point concerning the validity of the Children's Television Standards promulgated by the Australian Broadcasting Tribunal ("the Tribunal") in purported pursuance of the powers vested in it by the Broadcasting and Television Act 1942, as amended, ("the Act") to determine the standards to be observed by licensees in respect of the televising of programs.

On 27 March 1984 the Tribunal determined that a comprehensive set of Children's Television Standards should come into force as from 1 July 1984. In proceedings for review under s.5 of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") a number of commercial television licensees challenged the validity of the provisions of some of the Standards, namely the paragraphs identified in the document as CTS 3(2)(b), CTS 8, CTS 9(2), CTS 9(3), CTS 10, CTS 13(1), CTS 13(4), CTS 13(5) and CTS 33.

The Tribunal is constituted by s.7 of the Act and is given wide powers and functions in relation to the grant, renewal, suspension and revocation of licences for commercial broadcasting and television stations. One of its functions is "to determine the standards to be observed by licensees in respect of the broadcasting or televising of programs;" (vide para. (d) of s.16(1)). It is the meaning of the word under the Judicial Review Act. The applicants claimed that the impugned Standards determined by the Tribunal were not standards of the kind referred to in para. (d) and were therefore ultra vires. That claim was rejected by the learned trial judge and this appeal is brought from his decision.

In the document issued by the Tribunal giving notice of the Children's Television Standards the standards are referred to as "CTS" and it is convenient to so refer to them in these reasons. The Standards adopt the concept of a "C program". Such a program is defined in CTS 1(1) in the following terms:

"C program is a program which meets the criteria of suitability for children in CTS 2 and has been so classified by the Tribunal under CTS 3"

CTS 2 specifies the criteria for a "C program" as follows:

"2. A C program is one which:

(a) is designed specifically for children older than 5 years and younger than 14 years:

(b) is designed to entertain children:

(c) is well produced technically and artistically:

(d) can be easily understood and appreciated by children:

(e) fulfils some special need of children:

(f) contributes to the social, emotional or intellectual development of children;

(g) is appropriate for Australian children, not assuming too much of the culture, dialect or environment of some other country; and

(h) is not outdated in content or in technical or artistic production."

CTS 3 is of central importance to a consideration of the matters argued on appeal. It relevantly provides as follows:

"3(1) A licensee may not transmit any programs except C programs during C time (4.00 to 5.00 pm Monday to Friday).

(2) During C time a licensee may transmit only programs:

(a) which are C programs as defined in CTS 2; and

(b) representative samples of which have been classified by the Tribunal as complying with the C program criteria in CTS 2.

(For the purposes of this paragraph (CTS3(2)) 'the Tribunal' means the Tribunal Member to whom the power of the Tribunal to make C classification decisions has been delegated, or a quorum of the Tribunal members reviewing a decision made by that Member.)"

CTS 8 provides that, unless otherwise determinded at the time of classification, a classification of a program under CTS 3 shall last for five years, but may be renewed. CTS 9 deals with programs called "station of origin C programs" and provides that when the Tribunal has classified a program as "station or origin C", that program is deemed to be a C program when transmitted from the station for which it was produced. CTS 10 deals with provisional classification prior to full production of a program.

In addition to the requirements as to the televising of programs between 4 p.m. and 5 p.m. on weekdays the Children's Television Standards impose requirements for the transmission of Australian Children's Drama. In each year a licensee must transmit eight hours of "first rlease Australian Children's Drama". CTS 13 defines "Australian Children's Drama" as a television program which meets a number of requirements, one of which is that "the program must be classified by the Tribunal as a C program". CTS 13(4) provides that the program must "in the opinion of the Tribunal be a dramatic work . . ." and CTS 13(5) provides "that the program must in the opinion of the Tribunal have a significant Australian content."

It was submitted on behalf of the appellants that such of the provisions of the Children's Television Standards as provide that programs must be classified by the Tribunal before transmission are invalid. It was submitted that such a provision was not authorised by of the Act. It was conceded that the combined effect of s.16(1)(d) and s.17 of the Act was to authorise the Commission to determine standards to be observed by licensees in respect of the televising of children's programs. But it was contended that those provisions, whilst authorising the determination of standards of the most comprehensive kind, did not go so far as to authorise provisions such as are found in CTS 3(2)(b), CTS 13(1) and the other Standards to which I have referred.

It is useful to consider CTS3(2)(b) first because, if it is invalid, the other impugned Standards would fall with it. Although it was faintly argued by counsel for the respondent that power to impose a requirement such as is found in CTS 3(2)(b) could be found in para. (i) of s. 16(1) of the Act, I am satisfied that it is to para. (d) to which one must look to find the necessary power. Accordingly the critical question is whether the imposition of a requirement that a program should not only meet the criteria referred to in CTS 2 but also be classified by the Tribunal as complying with those criteria is within the power given to the Tribunal in para. (d) to determine Standards to be observed by licensees in respect of the televising of programs.

There is no definition in the Act of "standards". As was said in the High Court in The King v Galvin; ex parte Metal Trades Employers Association (1949) 77 CLR 432 at 447:

"The word 'standard' is used in several senses. The meaning of the word may vary in accordance with the context in which it is used. The primary idea which the word expresses is that of a measure of quantity or quality fixed or approved by some authority, e.g., standard foot, standard pound, standard of behavior."

In the Shorter Oxford Dictionary, 3rd ed., the ordinary meaning of "standard" is given as:

"a definite level of excellence, attainment, wealth, or the like, or a definite degree of any quality, viewed as a prescribed object of endeavour or as the measure of what is adequate for some purpose."

It was conceded on behalf of the appellants that standards in respect of television programs must of necessity be determined having regard to subjective considerations. For this reason, the concession was made that the criteria specified in CTS 2 were properly described as standards and that it was within thepower of the Tribunal to require licensees of television stations to observe those standards.

It was submitted that, in the context of the Act, a standard must set out a citerion which is susceptible of informed assessment by a person who is required to observe it. However, counsel for the appellants contended that CTS 3(2)(b) failed to do this in that it put forward, not such a criterion, but rather the mere opinion of the Tribunal as to whether a program complies with the Standard. It was argued that for the Tribunal to direct that a licensee must meet its satisfaction from time to time was not to determine a standard. It was not the determination of any definite level of excellence, nor did it prescribe anything by which a licensee could measure whether what he did met the prescribed standard.

Reliance was placed upon s.99(1) of the Act which provides that a licensee shall provide programs and supervise the televising of programs from his station, "in such manner as to ensure, as far as practicable, that the programs are in accordance with the Standards determined by the Tribunal". It was submitted that CTS 3(2)(b) which purported to authorise a system of censorship based on a preliminary subjective assessment of a program was inconsistent with the discretion given to licensees by s.99(1) as to how to seek to comply with the Standards. Reliance was also placed on s.99(2) of the Act which provides, inter alia, that if programs televised from a commercial television station "are not, in whole or in part, in accordance with the Standards determined by the Tribunal, the licensee shall, if so directed by the Tribunal, vary the programs so that they shall conform with those standards." Counsel for the appellants argued that, likewise, the system of classification of programs in CTS 3(2)(b) was inconsistent with s. 99(2) in that the sub-section does not authorise a direction that a licensee shall show only programs which have been approved in advance by the Tribunal.

CTS 3 must be considered in the context of the whole of the document in which it appears. Viewed in that context, I do not think that CTS 3 was intended to fix standards at all. It is reasonably plain from the document as a whole that it is in CTS 2, not CTS 3, that the Tribunal's determinations of standards are laid down. CTS 3 does not prescribe standards, but imposes restrictions on the transmission of programs. It does not lay down guidelines. It restricts the right of a licensee to transmit a program that meets all the Standards laid down in CTS 2. Even if a program is a C program the licensee may not transmit it unless a sample of it has been classified by the Tribunal.

It was put in argument by counsel for the Tribunal that CTS 3(2)(b) was no more than a part of the process of determining standards under CTS 2. It was contended that provided a program complied with the Standards determined in CTS 2 it would not be open to the Tribunal to refuse classification of it under CTS 3(2)(b). Indeed, it was submitted on behalf of the respondent that CTS 3(2)(b) does no more than lay down a convenient procedure for advising licensees that their programs, in the opinion of the Tribunal, comply with the Standards laid down in CTS 2. If this is correct, there is little content in CTS 3(2)(b) and it is substantially otiose.

I do not think that CTS 3(2)(b) is as innocuous as counsel for the Tribunal contended. It may have been intended to be innocuous, but it seems to me to give to the Tribunal an overriding power to veto the transmission in C time of children's programs even if they meet the Standards referred to in CTS 2. I do not think the language of CTS 3(2)(b) admits of any other interpretation. It specifically limits the right of a licensee to transmit in C time a program that is indubitably a C program unless it has been classified by the Tribunal.

It is true that there are advantages to licensees in knowing prior to transmission of a program that it meets with the Tribunal's approval. Thus, a licensee proposing to transmit a children's program which, in its opinion, meets the Standards laid down in CTS 2, might well desire to know in advance of transmission that the Tribunal agrees that it is truly a C program. But there is no need for a provision such as CTS 3(2)(b) for licensees to be afforded the benefit in advance of the Tribunal's views. In the absence of such a provision it would always be open to a licensee to approach the Tribunal for an informal expression of its opinion whether a program meets the standards in CTS 2.

I do not doubt that the power of the Tribunal under para (d) to determine standards would extend to authorising the Tribunal to require licensees to submit a program, or a representative sample of a series of programs, to the Tribunal prior to transmission. Such a requirement would be justified as part of the mechanism by which the Tribunal would be entitled to monitor the performance of the licensees in observing pre-determined standards. But to say that the Tribunal has power to require a licensee to submit a program to it prior to transmission is not to say the Tribunal has power to prevent transmission of the program if it does not meet with its approval. That is another question altogether.

The above discussion leaves unanswered the question whether it is within the power of the Tribunal to require licensees of television stations to comply with the provisions of CTS 3(2)(b). I do not think the alleged inability of a licensee to know in advance what are the requirements of the Tribunal is a sufficient basis for finding the impugned provision invalid. It is to be remembered that CTS 3(2)(b) is concerned with the transmission of programs, not the production of programs. It is true that, at the time a program is produced, its producer may well not know whether it will be classified by the Tribunal under CTS 3(2)(b) even though it complies in all respects with the standards laid down in CTS 2. But I think this is beside the point. At the time a licensee transmits a program he will know whether or not it has been classified by the Tribunal. He will know whether or not one of the "standards" (if classification be regarded as a "standard") which the program must meet has been met.

However, in my opinion, the effect of CTS 3(2)(b) is to give the Tribunal the power to restrict transmission of C programs between the hours of 4 p.m. and 5 p.m. Mondays to Fridays merely because they do not meet the approval of the Tribunal, and irrespective of whether they comply with the Standards laid down in CTS 2. I do not think that such a power is within the Tribunal's powers under para. (d). What the Act there refers to is the determination of criteria to be observed by all licensees in respect of the broadcasting or televising of programs. Although the instant case is concerned with the transmission of children's programs, the power in para. (d) extends to determining standards to be observed by licensees in respect of the broadcasting or televising of programs designed for adult audiences. Thus if CTS 3(2)(b) is within power, a similar provision concerned with the transmission of adult programs would also be within power. Notwithstanding the width of the power to determine the standards to be observed by licensees in respect of the broadcasting and televising of programs, I do not think it is so wide as to authorise a provision giving the Tribunal an overriding power to restrict transmission of programs to those which have been classified by it.

A practical example of how CTS 3(2)(b) could be applied may be imagined. Suppose a program dealing with party politics and designed to interest children is produced for a television licensee who wishes to transmit it and that the program complies with the Standards laid down in CTS 2. Further suppose that the Tribunal Member to whom the power to make C classification decisions has been delegated holds the erroneous opinion that the program does not comply with the standards in CTS 2 and that he therefore declines to classify the program. In such a case, the program could not be transmitted during C time.

If CTS 3(2)(b) lays down a standard, transmission of a non-classified program would be an infraction of s.99(1) and would expose the licensee to prosecution under s.132(1). I did not understand counsel for the respondent to contend otherwise. In the example that Ihave taken, proof that the program had not been classified would be sufficient to show that the program did not meet the standards to be observed by the licensee. This would be so notwithstanding that the jury empanelled to try the indictable offence under s. 132(1) (or the court of summary jurisdiction determining the offence under s.132(3)) might think that the program complied in all respects with the standards laid down in CTS 2. The position would be different if the only relevant obligation of a licensee was to comply with the standards laid down in CTS 2. In such a case, if a licensee were prosecuted for transmitting a program in C time which was not in accordance with standards determined by the Tribunal the issue for the court would be whether the program complied with the standards laid down in CTS 2. If court thought it did, the licensee would be acquitted.

It is considerations of this kind which have led me to the conclude that it cannot have been intended that the power in para (d) to determine standards was to extend to authorising the imposition of a provision of the kind found in CTS 3(2)(b). In my opinion that provision is not properly described as a standard. If it is proper to so describe it, then it is not a standard of the kind referred to in the Act. Nowhere in the Act is it provided that the Tribunal has a general power to approve or disapprove the transmission of television programs. It is true that powers of censorship are given to the Minister (s.99(3)) and to the Tribunal (s.101). Further, provision is made for the control of broadcasting and television in cases of emergency (s.131). These specific powers of regulating what is transmitted by licensees tell against the implication of a similar power elsewhere. As was said by Dixon J. in The King v. Wallis (1949) 78 CLR 529 at 550:

"This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course."

In substance the effect of CTS 3(2)(b) is that a program is only a C program if the Tribunal says it is. Upon the construction which I place upon CTS 3(2)(b) it purports to give an overriding power of censorship to the Tribunal in respect of programs transmitted between 4 p.m. and 5 p.m. on weekdays. I do not think that the Tribunal is given such a power in the Act.

I can see no reason why, if CTS 3(2)(b) is valid, the Tribunal could not determine what is transmitted to viewers in specified hours other than C time by imposing upon licensees a requirement that only classified programs be transmitted during such hours. This cannot have been the intention of the legislature.

There are, of course, cases in which a body is given power by its constating legislation to make by-laws or give directions requiring things to be done which, in its opinion, ought to be done. See, for example, Foley v Padley (1984) 58 ALJR 454. In such a case, it is the existence of the opinion, and not its correctness, which determines whether the exercise of the power is valid. It might be said that when the Tribunal classifies a program under CTS 3(2)(b) it does no more than express its opinion that the program complies with the C program criteria in CTS 2. But I do not think this answers the attack made on CTS 3(2)(b). What para. (d) authorises is the determination of standards. It does not authorise the Tribunal to require that its opinions on standards be adhered to by licensees. A contrast may be drawn between para. (d) and the legislation in Foley v Padley which authorised the local authority to regulate any activity in the Rundle Street Mall that, in its opinion, was likely to affect the use or enjoyment of the Mall.

The learned trial judge correctly pointed out in his reasons that there is no general rule that conditions imposed pursuant to a power to license or approve subject to conditions must be confined to conditions that are non-qualitative or objective in character. He said that if the purpose for which the relevant statutory function is being exercised reasonably requires or supports a condition dependent upon subjective assessment then such a condition is valid. I agree that this is so. It is for this reason that I think the standards referred to in CTS 2 are plainly within power.

Moreover, I agree with his Honour that it is erroneous to construe at the Broadcasting and Television Act as if it is directed at the creation and maintenance of private property rights in licensees, and to interpret the Act in general and s.16 in particular accordingly. But a power to prohibit licensees from transmitting programs affects not only licensees but also viewers. If CTS 3(2)(b) places an unreviewable restriction on the transmission of programs (as I think it does) the power to impose such a restriction should plainly appear from the words of the Act. I do not think it does. The learned trial Judge recognised the absence of any real guidance in the Act as to the extent of the Tribunal's power to determine standards. He said:

"It is not easy, with such a paucity of guidance in the statute itself, to determine what Parliament meant to include in the word 'standards' in s.16(1)(d) but, in the end, the dominant consideration must be the nature of the activity being subjected to regulation. The regulation of the broadcasting and television industries cannot be approached in the same way as the fixing of working hours or maximum prices of goods. The adoption of the applicants' interpretation would not assist the attainment of any object of the Broadcasting and Television Act but rather would seriously limit any opportunity for the Tribunal to influence in a positive way program quality. People working under the Act are engaged in a creative process necessarily involving subjective judgements. In that context there is no warrant for reading the word 'standards' as being limited to specifications not involving any element of subjective assessment."

Some reliance was placed upon para. (f) of s.16 as a sufficient source of power for the making of CTS 3(2)(b). That paragraph provides that the Tribunal may determine the hours during which programs may be televised by licensees. I do not think that, for present purposes, para. (f) relevantly expands the Tribunal's powers. It is not in question that the Tribunal has power to determine that programs of a certain kind may only be televised during certain restricted hours. In my opinion the existence of such a power is beyond dispute. But the question in the present case is whether the Tribunal can impose a valid program standard which has as one of its requirements that the program must be approved by the Tribunal. I do not think para. (f) touches this question.

I do not think that the striking down of CTS 3(2)(b) limits the opportunity for the Tribunal to influence the quality of programs. Programs must still comply with the comprehensive standards referred to in CTS 2. If those standards are found to be inadequate, they may be raised and expanded. Failure to comply with them would expose a licensee to the most serious consequences, not only under s. 132 but also under the provisions of the Act dealing with the renewal of licences. It was, I think, common ground that transmission by a licensee of programs failing to meet standards determined by the Tribunal would be a ground upon which the Tribunal could refuse to renew a licence for a commercial television station.

I have reached the conclusion that CTS 3(2)(b) is not authorised by the Act only after some hesitation. I recognise fully the force of the observations made by the learned trial judge that a decision of the Tribunal not to classify particular material as suitable for a C program will not prevent the licensee from transmitting that material. As he correctly observed, such a decision merely means that the material may not be transmitted during C time. Similarly, a decision that a particular program fails to meet the requirements of CTS 13 so as to be an "Australian Children's Drama" does not prevent the licensee from transmitting that material. It only means that its transmission will not be taken into account in assessing whether the licensee has performed his obligation of showing not less than 8 hours Australian Children's Drama in each year. Thus it can be said that a failure by the Tribunal to classify a program does not amount to censorship, but merely places a restriction upon the hours during which the program may be transmitted. Cf. Austarama Television Pty. Limited v. Australian Broadcasting Control Board (1975) 27 FLR 291 where it was held that the power of the Australian Broadcasting Control Board to determine the conditions subject to which advertisements may be broadcast authorise a partial prohibition of the advertising of cigarettes by way of the imposition of conditions as to the timing and frequency of such advertisements.

However, I think there is a real distinction between a restriction upon the hours during which programs which do not meet a given standard may be transmitted, and a provision that a program (whatever its content) may not be transmitted during certain hours without the prior approval of the Tribunal. A provision of the former type may properly be said to be part of the mechanics of implementing standards determined by the Tribunal. But I do not think a provision of the latter kind can be so regarded. In my opinion, it is, in substance, a form of censorship for which no authority can be found in the Act.

For these reasons I am of the opinion that the appeal should be allowed.