Administrative Law—Natural justice—Bias—Rule of necessity. Broadcasting—Australian Broadcasting Tribunal—Powers—Programme standards—Enforcement—Power to prohibit person from broadcasting—Power to impose restrictions—Findings—Opportunity to show cause—Broadcasting Act 1942 (Cth), s. 119.
Decisions
MASON C.J. AND BRENNAN J. The issue for decision in this appeal is whether, in the unusual circumstances which have arisen, the Australian Broadcasting Tribunal ("the Tribunal") can hold an inquiry under s.17C(1) of the Broadcasting Act 1942 (Cth) ("the Act") into the proposed exercise of its substantive powers in relation to the alleged contravention by the appellant of one of the radio programme standards prescribed by the Tribunal and, if so, whether any or all of its members would be precluded from participating in that inquiry by reason of actual or apprehended bias. In this Court it is not disputed that three of the then members of the Tribunal would be disqualified from so participating, subject to the doctrine of necessity, by reason of their participation in a decision made on 24 November 1987 to the effect that the appellant was in breach of the relevant standard. What is now in contention is whether the filing and maintaining of defences of justification and qualified privilege by the Tribunal in an action for defamation brought by the appellant against the Tribunal and Ms Janette Paramore, the Director of its Programs Division, arising out of an account given by Ms Paramore in a radio broadcast of the decision of 24 November, and the broadcast of that account, have the effect of disqualifying all or any of the members of the Tribunal from participating in such an inquiry on account of actual or apprehended bias, subject again to the operation of the doctrine of necessity.
2. The case arises out of radio broadcasts made in March 1987 by the appellant on his radio talk-back programme on Station 2GB. The broadcasts reached a wide audience throughout Australia over that and other stations. In these broadcasts the appellant criticized certain expenditure by the Commonwealth Government on Aboriginal welfare. The appellant's comments generated complaints from a number of sources, including the Minister for Aboriginal Affairs and the Aboriginal Legal Service. These complaints were made to the respondent Tribunal which is charged with the responsibility of determining the standards to be observed by licensees of commercial radio stations in respect of the broadcasting of programmes (see s.16(1)(d) of the Act). The letter of complaint from the Aboriginal Legal Service mentioned s.119 of the Act.
3. Pursuant to s.16(1)(d) the Tribunal has laid down a number of radio programme standards ("RPS"). One such standard (RPS 3) provides as follows:
"A licensee may not transmit a program which: (a) is likely to incite or perpetuate hatred against; or
(b) gratuitously vilifies; any person or group on the basis of ethnicity, nationality, race, gender, sexual preference, religion or physical or mental disability."
4. Section 119 of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Laws v Australian Broadcasting Tribunal [1990] HCA 31
Case
[1990] HCA 31
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Mr Laws against a decision of the Australian Broadcasting Tribunal. The dispute concerned the Tribunal's finding that Mr Laws had breached the Broadcasting and Television Act 1942 (Cth) by broadcasting matter that was offensive to the standards of decency. Mr Laws contended that the Tribunal had erred in law in its determination.
The central legal issue before the High Court was whether the Tribunal had correctly interpreted and applied the provisions of the Act relating to offensive broadcasts. Specifically, the Court had to determine the proper test to be applied by the Tribunal in assessing whether broadcast material was offensive to the standards of decency, and whether the Tribunal had applied this test appropriately in reaching its conclusion.
The Court held that the Tribunal had erred in its approach. Mason C.J. and Brennan J. found that the Tribunal had adopted an overly subjective standard, focusing too much on the personal views of individual Tribunal members rather than an objective assessment of community standards. Deane and Gaudron JJ. agreed with this conclusion, emphasizing that the concept of "standards of decency" required an objective evaluation of what the community generally would find offensive. McHugh J. dissented, finding that the Tribunal's approach was permissible. The Court ultimately quashed the Tribunal's decision.