Project Blue Sky Inc v Australian Broadcasting Authority

Case [1998] HCA 28


HIGH COURT OF AUSTRALIA

BRENNAN CJ,
McHUGH, GUMMOW, KIRBY AND HAYNE JJ

PROJECT BLUE SKY INC & ORS  APPELLANTS

AND

AUSTRALIAN BROADCASTING
AUTHORITY  RESPONDENT

Project Blue Sky v Australian Broadcasting Authority (S41-1997)
[1998] HCA 28
28 April 1998

ORDER

  1. Appeal allowed.

  1. The respondent pay the appellants' costs of this appeal.

  1. In lieu of the orders of the Full Court of the Federal Court of 12 December 1996, substitute the following orders:

    1.The appeal be allowed and the orders made by Davies J set aside.

2.    THE COURT DECLARES THAT cl 9 of the Australian Content Standard (the Standard) determined by the Appellant on 15 December 1995 was unlawfully made.

3.    THE APPELLANT pay the costs of the appeal and of the proceedings before Davies J.

4             Each party has liberty to apply further, as it may be advised.

5.    Without limiting the generality of Order 4, the Respondents have liberty to apply for such further or other orders as they may be entitled to arising from the alleged failure of a clause of the Standard to comply with Australia's obligations under the Australia New Zealand Closer Economic Relations Trade Agreement and the Trade in Services Protocol to that agreement.

2.

6.     There be no order in relation to the costs of the interveners.

On appeal from the Federal Court of Australia

Representation:

R J Ellicott QC with D M Yates and A J Silink for the appellants (instructed by Minter Ellison)

R V Gyles QC with N E Abadee for the respondent (instructed by Australian Government Solicitor)

Amici Curiae:

S J Gageler amici curiae on behalf of the Australian Film Commission, Australian Film Finance Corporation Limited, Australian Children's Television Foundation, Screen Producers' Association of Australia, Australian Writers' Guild Limited, Media, Entertainment and Arts Alliance, Australian Screen Directors' Association, Susan Lyons, Graham Thorburn, Denise Morgan and Jonathan M Shiff Productions Pty Limited (instructed by Fisher Grogan)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Project Blue Sky Inc & Ors v Australian Broadcasting Authority

Statutes - Construction - Reconciliation of conflicting provisions - Intention of legislature - Presumption that provisions intended to achieve consistent goals - Leading and subordinate provisions - Grammatical meaning and legal meaning.

Statutes - Construction - Acts done in breach of a condition regulating a statutory power - Whether invalid - Mandatory and directory provisions - Purpose-based test.

Media law - Television - Regulation of programming - Australian Broadcasting Authority - Standard prescribing Australian content requirements - Whether inconsistent with legislative requirement that functions be performed consistently with Australia's international obligations.

Media law - Television - Regulation of programming - Australian Broadcasting Authority - Power to make standards that "relate to ... the Australian content of programs" - Whether restricted to standards conferring preferential treatment.

Trade law - Australia New Zealand Closer Economic Relations Trade Agreement.

Broadcasting Services Act 1992 (Cth), ss 3, 122, 158, 160.

Broadcasting Services (Transitional Provisions and Consequential…

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Details
AGLC
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
Case
[1998] HCA 28
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal concerning a dispute between Project Blue Sky Inc. and the Australian Broadcasting Authority (ABA) regarding the validity of a standard made by the ABA concerning Australian television content. Project Blue Sky Inc. challenged the validity of clause 9 of the Australian Content Standard, arguing it was inconsistent with Australia's international obligations under the Australia New Zealand Closer Economic Relations Trade Agreement.

The central legal issues before the Court were whether the ABA had acted unlawfully in making the standard, specifically clause 9, and whether the standard was invalid due to its inconsistency with Australia's international treaty obligations. The Court was required to consider the principles of statutory construction, particularly how to reconcile potentially conflicting provisions within legislation and the test for determining whether a breach of a statutory condition renders an act invalid, distinguishing between mandatory and directory provisions.

The Court reasoned that the ABA's legislative mandate required it to perform its functions consistently with Australia's international obligations. It applied a purpose-based test to determine the invalidity of the standard, finding that where a statutory provision confers a power to do something, and that power is exercised in a way that is inconsistent with a condition that is essential to the achievement of the purpose of the Act, then the exercise of that power is invalid. The Court concluded that clause 9 of the Standard was inconsistent with Australia's obligations under the Closer Economic Relations Trade Agreement and its Trade in Services Protocol, rendering it unlawfully made.

Consequently, the High Court allowed the appeal, setting aside the orders of the Full Court of the Federal Court. The Court declared that clause 9 of the Australian Content Standard was unlawfully made and ordered the ABA to pay Project Blue Sky Inc.'s costs. The parties were granted liberty to apply for further orders, particularly concerning the consequences of the non-compliant clause.

Orders

Orders of the court

1. Appeal allowed.

2. The respondent pay the appellants' costs of this appeal.

3. In lieu of the orders of the Full Court of the Federal Court of 12 December 1996, substitute the following orders:

1. The appeal be allowed and the orders made by Davies J set aside.

2. THE COURT DECLARES THAT cl 9 of the Australian Content Standard (the Standard) determined by the Appellant on 15 December 1995 was unlawfully made.

3. THE APPELLANT pay the costs of the appeal and of the proceedings before Davies J.

4 Each party has liberty to apply further, as it may be advised.

5. Without limiting the generality of Order 4, the Respondents have liberty to apply for such further or other orders as they may be entitled to arising from the alleged failure of a clause of the Standard to comply with Australia's obligations under the Australia New Zealand Closer Economic Relations Trade Agreement and the Trade in Services Protocol to that agreement.

6. There be no order in relation to the costs of the interveners.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BRENNAN CJ (dissent) HUGH, GUMMOW, KIRBY AND HAYNE JJ (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

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