Re A Reference to the Federal Court of Australia by the Australian Broadcasting Tribunal Pursuant to Section 22b of the Broadcasting and Television Act 1942 in relation to applications to the Australian...

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Re: IN THE MATTER of a reference to the Federal Court of Australia by the
Australian Broadcasting Tribunal pursuant to Section 22B of the Broadcasting
and Television Act 1942 in relation to applications to the Australian
Broadcasting Tribunal for approval of transactions relating to the ownership
and control of radio and television licences by The News Corporation Limited,
Network Ten Holdings Limited and others.
No. G342 of 1986
Broadcasting and Television

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.
Lockhart J.
Beaumont J.

CATCHWORDS

Broadcasting and Television - reference of questions of law by Australian Broadcasting Tribunal under Broadcasting and Television Act 1942 - prohibition in Act on a foreign person being in a position to exercise control of a licensee company - whether premiums paid on issue of shares are amounts "paid on the shares" within the meaning of s.91(3)(b) - whether the "amount paid on shares" is the amount of the nominal value of the shares - whether "being in a position to exercise control" is defined exhaustively by ss. 90E and 92B - effect of deeming provisions - whether de facto control by other means is included - whether test for the existence of control of a company includes not only control of general meeting but also control of the board of directors - whether power of veto constitutes control - what constitutes presently existing right to control.

Broadcasting and Television Act 1942: ss. 90, 91, 92A, 92B, 92D Acts Interpretation Act 1901: ss.15AA, 15AB.

HEARING

SYDNEY

#DATE 20:1:1987

Counsel and Solicitors for Network Ten Holdings Limited, Network Ten Investments Limited and Kenneth Brian Stonier, George Edwin Limb and Sidney Baillieu Myer, the trustees of the Pemberly Trust:- T. Hughes Q.C. and S.D. Robb instructed by Dawson Waldron

Counsel and Solicitors for The News Corporation Limited, Cruden Investments Pty. Limited, Kayarem Pty. Limited, Mr. Keith Rupert Murdoch and Dame Elisabeth Murdoch:- R.P. Meagher Q.C. and W.M.C. Gummow instructed by Dawson Waldron

Counsel and Solicitors for Australian Journalists' Association and Actors Equity of Australia:- D.K. Catterns and S. Epstein instructed by Phillips Fox

Counsel and Solicitors for the Australian Broadcasting Tribunal:- N.R. McPhee Q.C. and D. Shavin instructed by the Australian Government Solicitor.

ORDER

The answers to the following questions of law arising in the proceedings before the Australian Broadcasting Tribunal which were referred pursuant to s.22B of the Broadcasting and Television Act 1942 are as stated below:

QUESTION:

(i) Whether, in considering whether TNCL has a shareholding interest such that it would be deemed to be in a position to exercise control of NTHL and its subsidiaries pursuant to sections 90E and 92B of the Act, the premiums paid on the shares referred to in paragraphs 9(b) and 10(b) above (of the Special Case) are to be included in the calculations of:

(a) "an amount equal to the value of the shares", or

(b) "an amount equal to the value...of the person's interest in the shares",

within the meaning of paragraphs 90(3)(b) and 91(3)(b) of the Act.

ANSWER: Yes.

QUESTION:

(ii) Whether sections 90E and 92B exhaustively define the meaning of "being in a position to exercise control, directly or indirectly, of a company" within the meaning of sub-sections 90G(1) and 92D(1) and with the consequence that the Tribunal is bound to find that the foreign persons are not in a position to exercise control, directly or indirectly, of the licensee companies.

ANSWER: Sections 90E and 92B do not exhaustively define the meaning

of "being in a position to exercise control directly or indirectly of a company" within the meaning of sub-sections 90G(1) and 92D(1).

It is unnecessary to deal with the latter part of
Question (ii).

QUESTION:

(iii) Whether, as at 5 September 1985, by reason only of:

(a) Article 98(2)(b) of the Articles of Association of NTHL; and/or

(b) Clause 4 of the Memorandum of Association of NTHL and Article 8 of the Articles of Association of NTHL;

TNCL was in a position to exercise control of NTHL.

ANSWER: Yes.

The determination of the remaining questions in the Special Case be stood over, liberty to restore reserved.

The parties who made applications to the Australian Broadcasting Tribunal for approval of the transactions referred to in the Special Case and who were represented before this Court pay to Actors Equity of Australia, the Australian Journalists' Association and the Australian Broadcasting Tribunal their costs of the reference to date.

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

JUDGE1

The matter before the Court is a reference pursuant to Section 22B of the Broadcasting and Television Act 1942 ("the Act"). The most convenient method of stating the facts is to state the paragraphs of the Special Case. Paragraphs 1 to 6 inclusive are in the following terms:

1. Several applications have been made to the Australian Broadcasting Tribunal ("the Tribunal") for approval of transactions relating to the ownership and control of certain radio and television licences. The applications are made pursuant to sections 90J and 92F of the Act and the Tribunal must consider approving the transactions pursuant to sections 90JA and 92FAA of the Act.

2. The radio and television licences to which the applications relate are -

TEN - 10 Sydney (commercial television) ATV - 10 Melbourne (commercial television) 4AM - Atherton/Mareeba (commercial radio) 3FOX-FM - Melbourne (commercial radio)

United Telecasters Sydney Ltd is the licensee of TEN-10. Austarama Television Pty Ltd is the licensee of ATV-10. Far Northern Radio Pty Ltd is the licensee of 4AM. Broadcast FM Pty Ltd is the licensee of 3FOX-FM. Austarama Television Pty Ltd owned 20% of the shares of Broadcast FM Pty Ltd and therefore was deemed to be in a position to exercise control of Broadcast FM Pty Ltd within the meaning of the Act until the sale of its shares in the latter company on 30 June 1986.

3. The licensee companies were owned and controlled by The News Corporation Limited ("TNCL") immediately prior to 4 September 1985. Mr K.R. Murdoch, at that time and until February 1986, was a person who held shareholding interests within the meaning of the Act of more than 50% of the capital of TNCL. Since February 1986 Mr Murdoch has held shareholding interests within the meaning of the Act of slightly less than 50% of the capital of TNCL. He was and still is deemed to be in a position to exercise control of TNCL: section 90E and 92B of the Act. On 5 September 1985 (Australian EST) Mr Murdoch became a citizen of the United States of America. He thereby ceased to be an Australian citizen on that date: sub-section 17(1) of the Australian Citizenship Act

1948. Mr Murdoch is therefore a "foreign person" within the meaning of sub-sections 90G(3) and 92D(3) of the Act. As such, his continued control over the relevant radio and television licences, if it exists, would be a contravention of a condition of each of those licences under sub-sections 90G(1) and 92D(1) of the Act.

4. TNCL is a "foreign person" under sub-sections 90G(3) and 92D(3) of the Act. As such, continued control by TNCL over the relevant radio and television licences, if it exists, would be a contravention of a condition of each of those licences under sub-sections 90G(1) and 92D(1) of the Act.

5. The Tribunal decided to conduct a public enquiry into the transactions the subject of the applications. Inquiries into the renewal of the licences for TEN-10 Sydney and ATV-10 Melbourne had been held in 1985. On 20 December 1985 the Tribunal had announced that, apart from the ownership and control questions which would arise in the transactions inquiry, there was nothing arising from the renewal inquiries which would cause the Tribunal not to renew the licences for the maximum period allowed under the Act.

6. At the opening of the hearing on 30 April 1986, the five transactions for consideration were -

Transaction A: The acquisition in June 1985 by News Investment Pty Limited, now Network Ten Investments Limted ("NTIL") of 5,840,633 shares in United Telecasters Sydney Ltd;

Transaction B: The acquisition in August 1985 by NTIL of 100,000 shares in Far Northern Radio Pty Limited;

Transaction C: The acquisition on 2 and 3 September 1985 respectively by Network Ten Holdings Limited ("NTHL") of 10,000 $2 ordinary shares, and 50,000 preference shares in NTIL;

Transaction D: The allotment on 4 September 1985 of 318,853 $1 voting redeemable preference shares in NTHL to the trustees of Pemberly Trust;

Transaction E: The allotment and subsequent redemption on 4 September 1985 of 291,859 $1 voting redeemable preference shares in NTHL to Cruden Investments Pty Limited, and of 24,822 such shares to Corcarr Nominees Pty Limited as nominees for Kayarem Pty Limited.

A further application was lodged with the Tribunal and accepted by the Chairman during the course of the inquiry for approval of the following transaction -

Transaction F: The acquisition by TNCL of approximately 33,207 $1 ordinary shares in NTHL pursuant to the exercise of the option contained in the deed dated 4 September 1985 between TNCL and NTHL.

A list of the applicants in relation to each of these transactions is to be found in Appendix 1.

Paragraphs 7 and 8 attach the Memorandum and Articles of the relevant companies and a list of Directors of each of the relevant Boards but I shall not recite these except so far as may be necessary in dealing with particular questions submitted. Paragraphs 9 and 10 are as follows:

9. The relationship of TNCL to NTHL, NTIL and the licensee companies resulting from the transactions A to E set out in paragraph 6 above is shown in the attached chart (Appendix 6). The total issued capital of NTHL is $631,006, comprised of -

(a) 631,000 $1 voting redeemable preference shares held as to 318,853 by the Pemberly Trust (see Trust Deed at Appendix 7), and 312,147 by public shareholders of TNCL;

(b) one $1 ordinary non-voting redeemable preference share held by TNCL, issued at a premium of $119,999, and

(c) five $1 (voting) ordinary shares held by TNCL (until such time as Transaction F is approved).

The premium paid has been carried to a share premium reserve account in the accounts of NTHL.

10. The total issued capital of NTIL is $120,050, comprised of -

(a) 50,000 $2 non-voting preference shares held by NTHL:

(b) 50 $1 non-voting redeemable preference shares held by TNCL, issued at a premium of $999,999 each;

(c) 10,000 $2 ordinary shares held by NTHL.

The premium paid has been carried to a share premium reserve account in the accounts of NTIL.

It is not necessary at this stage to recite paragraphs 11 to 18 inclusive.
It will be noted that one senior Counsel represented a number of parties who were applicants before the Tribunal for the approval of several transactions those parties being NTHL, NTIL and Messrs Myer, Stonier and Limb as Trustees of a trust known as the Pemberly Trust. Another senior Counsel appeared for another group of parties namely News Corporation Limited, Cruden Investments Pty Limited, RAN Pty Ltd and Mr Rupert Murdoch. Senior Counsel also appeared for the Australian Broadcasting Tribunal but informed the Court that it was not his intention to make any submissions as to how the questions which had been referred should be resolved. He informed the Court that neither the Minister nor the Australian Government wished to take any active part in the proceedings. Junior Counsel appeared for Actors Equity of Australia ("Actors Equity") and the Australian Journalists' Association ("A.J.A."), both of whom had been joined as parties before the Tribunal.
The first question referred for determination by the Court is as follows:-

(i) Whether, in considering whether TNCL has a shareholding interest such that it would be deemed to be in a position to exercise control of NTHL and its subsidiaries pursuant to sections 90E and 92B of the Act, the premiums paid on the shares referred to in paragraphs 9(b) and 10(b) above are to be included in the calculations of:

(a) "an amount equal to the value of the shares", or

(b) "an amount equal to the value ... of the person's interest in the shares", within the meaning of paragraphs 90(3)(b) and 91(3)(b) of the Act;

It will be noted that paragraphs 9(b) and 10(b) refer to these paragraphs in the Special Case. They are quoted above. In order to understand the question of law which is posed, it is necessary to set out the relevant sections of the Act and to describe the legislative scheme. Division 2 of Part IV of the Act deals with the limitation of ownership or control of commercial broadcasting stations. Sections 90E and 90(3)(b) appear in Division 2. Division 3 of Part IV deals with commercial television stations. Sections 92B and 91(3)(b) appear in Division 3. The two divisions are substantially identical and, for the sake of convenience, I will refer to the "television" provisions in Division 3.
Section 92D(1) imposes a general condition upon the holding of a television license. It provides that -

"... a foreign person shall not at any time during the currency of the licence be in a position to exercise control, either directly or indirectly, of the company holding the license"

Section 92B(1) sets out three situations in which a person will be deemed to be "in a position to exercise control" of the licensee company for the purposes of s.92D(1). The relevant provision for the purposes of this question is paragraph 92B(1)(b), which is as follows:

"92B(1) For the purposes of this Division, other than sub-sections 92D(2), (5) and (6) a person who ...

(b) has shareholding interests in a company, being shareholding interests in respect of shares of a kind carrying voting rights on all questions at general meetings of the company, exceeding in amount 15% of the total of the amounts paid on all shares in the company of a kind carrying such voting rights ...

shall be deemed (but not to the exclusion of any other person) to be in a position to exercise control of that company, of any votes, in respect of another company, of which that company is in a position to exercise control and of all acts and operations of that company."

The term "shareholding interest" is defined in s.91(3)(b) of the Act as follows:

"(3) For the purposes of this Division - ...

(b) the amount of the shareholding interest is an amount equal to the value of the shares, or of the person's interest in the shares, as the case requires, on the basis that the value of the shares is equal to the amount paid on the shares."

As appears from the words of paragraph 91(3)(b), the "value" to be given to the shares is not their market value. It is, rather, "the amount paid on the shares". The issue is whether the premium of $119,999 paid by TNCL for the issue to it of one ordinary redeemable preference share of $1 in NTHL, and the premiums of $999,999 paid by TNCL for the issue to it of each of its fifty non-voting redeemable preference shares of $1 each in NTIL are amounts "paid on the shares" within the meaning of paragraph 91(3)(b) of the Act.
Counsel for both groups of applicants submitted that this question should be answered "No". It was argued that as a matter of the natural and ordinary meaning of words premiums are paid for shares not on shares. It was further contended that the settled meaning in company law of the expression "amount paid on shares" is the amount of the nominal value of the shares, and that such a meaning was well-established in 1965 when paragraph 91(3)(b) was incorporated into the Act. Reliance was placed upon the decision of the Victorian Supreme Court in Niemann v. Smedley (1973) V.R. 767, and the authorities there referred to. In that case it was held that the expression "amount unpaid on shares" within the meaning of s.218(1)(d) of the Companies Act 1961 (Vic) referred to the amount unpaid on the nominal value of the shares and did not include the amount unpaid on a share premium. Reference was also made to Drown v. Gaumont-British Picture Corp. Limited (1937) 1 Ch. 402 where Clauson J said, at p.403, that a "premium from its very nature is not part of the capital paid up on the shares".
It was also submitted by counsel for the two groups of applicants that to interpret the expression "amount paid on shares" so as to include a share premium would not accord with the legislative intention behind paragraph 91(3)(b), which was to promote certainty and ease of calculation of the "value" of shares. The expression "value" in paragraph 91(3)(b) was not given the meaning of market value because the market value of a share will vary over time and is in many cases difficult to determine. On the other hand, the nominal value of a share is a fixed and certain amount. It was argued that the object of paragraph 91(3)(b) in promoting certainty of calculation would be frustrated if the amount of a share premium was also to be included in determining the "amount paid on" a share. Counsel laid stress upon the practical difficulties which could arise in the calculation, for the purposes of ss.92B(1)(b) and (c), of the percentage amount of the relevant "shareholding interest". Problems would be caused by the fact that a company may issue shares at differing premiums and that records identifying such differing premiums may not be kept indefinitely. Moreover, shares will inevitably be traded in the market place and in the course of trading parcels of shares may be split up. When a purchaser acquires shares in a company, the parcel may thus include shares which have been issued at varying times with varying premiums. In many cases, it was argued, it would be an extremely difficult task for the purchaser to calculate the amount of the premium on each of the shares acquired, so as to determine whether he had complied with the provisions of s.92B(1) of the Act.

Whatever may be the position in other cases such forensic fears about difficulties in the market would be unlikely to be realised in the case of companies such as NTHL and NTIL. As will appear below, the articles of these two companies make provision for shares in respect of which dividends and the amount returnable on a winding up may depend on the amount of capital paid up and the amount of premium paid when the shares are issued. Presumably such companies would keep appropriate records to enable them to fulfil their duties under the articles and presumably the holders of such shares would be conscious of their rights in determining a sale price.
Counsel for Actors Equity and the A.J.A. submitted that the question should be answered "Yes". It was argued that, contrary to the submission of the applicants, the expression "amount paid on shares" does not have a settled and well-understood meaning in company law. The provisions of the Companies Code themselves recognise, it was said, that the expression "amount unpaid on shares" is capable of two meanings. It may refer to the amount unpaid on the nominal value of the shares, as in s.360(1)(e) of the Code, the equivalent provision to that which was at issue in Neimann v. Smedley. On the other hand, it may also refer to the amount unpaid on the nominal value of the shares together with any unpaid premium. In support of the latter meaning, reference was made to Schedule 3 of the Code which contains the Table A Articles of Association and in particular to Regulation 12(1), which states:

"The directors may make calls upon the members in respect of any money unpaid on the shares of the members (whether on account of the nominal value of the shares or by way of premium) ..."

Counsel argued that Regulation 12 of Table A demonstrates that (at its widest) the phrase "money unpaid on shares" includes unpaid premiums. It was pointed out that the wording of the Regulation is such that premiums are embraced within the concept of "money unpaid on shares".
The decision in Niemann v. Smedley was sought to be distinguished on the ground that the provision of the Victorian Companies Act there under consideration (s.218(1)(d)) concerned the liability in an insolvent winding up of a contributory holding a partly paid share in a company to contribute toward its capital. It was argued that the decision rested merely on the ground that because a premium payable on a share is not capital, a shareholder who has paid only part of the premium due on his shares does not have a statutory liability to the company's liquidator to contribute in that respect. Counsel contended that the shareholders in Niemann v. Smedley would have been liable for the amounts of their unpaid premium if the call on them had been made not by the liquidator but by their company's directors (and the company had used Table A articles). In such a case, it was argued, the shareholders could not have claimed that their unpaid premiums were not "money unpaid on shares" within Regulation 12.
It appears to me that the case of Niemann v. Smedley was decided in the context of the statute there under consideration, in particular s.18 and s.218. Their Honours were at pains to point out that s.18(1)(c) and (3) and s.218(1)(d) were dealing with "share capital" the phrase used in s.18(3). They added (at p.773):

"It appears to us indeed that prior to 1958 it was well recognised that the expression "amount if any unpaid on shares" in what is now s.218(1)(d) meant the amount unpaid on the nominal value of the shares" (emphasis added).

That proposition is no doubt correct. But it does not follow that the words have the same meaning in s.91(3)(b) of the Broadcasting and Television Act. I find Niemann v. Smedley of little assistance in this case.
The Act unlike the Companies Code is not concerned with what is "capital" and it does not refer to the nominal value of the shares. Mention of either in s.91(3)(b) would have been sufficient to show an intention by Parliament to value on the basis of "capital paid on shares" or the "nominal value" of the shares. Parliament chose to use the general expression "the total of the amounts paid on all shares" (s.92B(1)) and "the amount paid on the shares" (s.91(3)). These expressions are certainly capable of applying both to amounts paid by way of capital and by way of premium on the shares.
The scheme of Division 3 of the Act is to regulate "shareholding interests" and "loan interests" which can be held by foreign persons in licensee companies. If the submissions on behalf of the two groups of applicants are correct there exists an unregulated class of "premium interest" (being neither a "shareholding interest" nor a "loan interest") by virtue of which a foreign person is free to take up a preponderant financial stake in any one or more Australian broadcasting or television stations. This would appear to be contrary to the purpose of Division 3 and to render s.92B(1)(b) and (c) largely nugatory. It seems to require one to read the words "amount paid on the shares" as the "amount of capital paid on the shares".
Before the enactment of s.56 of the Companies Act 1948 (U.K.) which now appears in Australia in s.119 of the Companies Code there was no statutory prohibition preventing the distribution of share premiums as dividend (Drown v. Gaumont-British Picture Corp. Limited (1937) 1 Ch. 402). However, after the statutory amendment the sum equal to the total amount of the premium had to be transferred to a "share premium account" which for most purposes had to be treated as though it were share capital. Gower in Modern Company Law, 4th edn. at p.221 stated the matter succinctly when he said:

"This reform is eminently sensible but it makes par value still more of a meaningless symbol for it frankly recognises that what is important is not the arbitrary par value but the value received for the shares when issued."

The position receives emphasis in the case of companies which have Articles of Association such as those of NTHL and NTIL.

In the case of NTHL one redeemable cumulative ordinary preference share of $1 was issued to TNCL at a premium of $119,999. Such shares in the Articles are called "ordinary preference shares" (Article 7). The rights attaching to these shares are set forth in Article 9(1) as follows:

"(1) Each ordinary preference share shall confer the following rights on the holder thereof:

(a) the right to receive out of the profits of the Company available for dividend a fixed cumulative preference dividend at the rate determined by the directors on allotment thereof (which without limitation may be nil) on the capital paid up thereon and premium (if any) paid to the Company in respect thereof which shall accrue from day to day from allotment and be due and payable (whether earned or declared or not) half yearly on such dates as the Directors shall determine, but in any event not later than 30 June and 31 December in each year while unredeemed and on redemption thereof and shall rank for payment (pari passu with the other ordinary preference shares) of dividend in priority to voting preference shares, ordinary and any other shares;

(b) the right in a winding up to payment (pari passu with the other ordinary preference shares) of capital paid up thereon and premium (if any) paid to the Company in respect thereof and any arrears of dividend (whether earned or declared or not) up to the commencement of the winding up in priority to the voting preference shares, ordinary shares and any other shares,

but shall not confer any further or other right to participate in profits or assets or any right to vote."

In the case of NTIL 50 non-voting redeemable preference shares of $1 each were issued to TNCL at a premium of $999,999 each. The rights attaching to these preference shares are set forth in Article 4(2) as follows:

4.(2)(c) Each Redeemable Preference Share shall entitle the holder thereof to the following:

(i) the right to receive out of the profits of the Company available for dividend a fixed cumulative preference dividend at the rate determined by the directors on allotment thereof (which without limitation may be nil) on the capital paid up thereon and premium (if any) paid to the Company in respect thereof which shall accrue from day to day from allotment and be due and payable (whether earned or declared or not) half yearly on such dates as the Directors shall determine, but in any event not later than 30 June and 31 December in each year while unredeemed and on redemption thereof and shall rank for payment (pari passu with the other Preference Shares) of dividend next after the Preference Shares but in priority to Ordinary and any other shares;

(ii) the right in a winding up or return of capital to payment (pari passu with the other Redeemable Preference Shares) of capital paid up thereon and premium (if any) paid to the Company in respect thereof and any arrears of dividend, whether earned or declared or not, up to the commencement of the winding up or return of capital, as the case may be, next after the Preference Shares but in priority to the Ordinary Shares and other shares,

but shall not confer any further or other right to participate in profits or assets of the Company or any right to vote.

To value shares of this type on the basis of the "meaningless symbol" of par value, is not an intention one would readily ascribe to Parliament.
Counsel for both groups of applicants, however, submitted that the Court should apply the rule of statutory construction that where an Act of Parliament imposes criminal liability any ambiguity should be resolved in favour of the liberty of the subject by refusing to extend the category of criminal offences. Reference was made to Scott v. Cawsey (1907) 5 CLR 132, at pp. 154-5; The King v. Adams (1935) 53 CLR 563, at pp. 567-8; and Beckwith v. The Queen (1976) 135 CLR 569, at p.576. It was argued that because the contravention of s.92D(1) is an indictable offence (s.132(1)), any doubt surrounding the meaning of the expression "amount paid on shares" in s.91(3)(b) should be resolved in favour of NTHL and Mr Murdoch.
It is to be noted that under the Act the indictable offence referred to is punishable in the case of a natural person by a fine not exceeding $5,000 and in the case of a body corporate by a fine not exceeding $10,000. One might be pardoned for thinking that the loss or denial of a television or broadcasting licence might constitute a weightier consideration than such a fine or that a company which for 50 $1 shares received $50 million would be unimpressed by the possibility of a fine of $10,000. The liberty of the subject does not seem to be involved. Any attempt to determine the interpretation of the section by such a consideration appears to be misconceived.
A more important rule in this context is that embodied in s.15AA of the Acts Interpretation Act 1901 requiring the Court to lean towards the construction that will promote the purpose of the Act. In the end the task of the Court is to ascertain and to enforce the actual commands of the legislature (Scott v. Cawsey (supra) at p.155). This will best be achieved by studying the words used and the context and the purpose or object underlying the Act.
When this is done it is seen that the general words used are appropriate to cover the total amount paid on the shares in the premium. It is also apparent that this serves the purpose or object underlying the Act.
One of the matters with which the Act is concerned is the possibility that a foreign person may at some time during the currency of the licence be in a position to exercise control of the company holding the licence. The detailed provisions directed to this subject are concerned with voting power and with power exercisable due to the extent of the financial stake in the company which a foreign person may have. The latter concept is dealt with in two ways - "shareholding interests" and "loan interests". The evaluation of the shareholding interest is the particular area with which we are invited to deal. To interpret the relevant sections as referring to the real or actual amount paid on the shares appears to serve the purpose or object of the Act better than reading those words as referring to par value or nominal value, which produces a result divorced from reality. The words par value or nominal value or capital paid up could quite easily have been used, if the intention had been to tie the value to this. The use of the general words appears to be deliberate.
In my opinion Question 1 should be answered "Yes".
The second question posed in the Special Case is as follows:

(ii) Whether sections 90E and 92B exhaustively define the meaning of "being in a position to exercise control, directly or indirectly, of a company" within the meaning of sub-sections 90G(1) and 92D(1) and with the consequence that the Tribunal is bound to find that the foreign persons are not in a position to exercise control, directly or indirectly, of the licensee companies.

The question as framed raises two issues. Again it will be convenient to refer to the television provisions in Division 3. The first issue is whether s.92B(1) is exhaustive. The second is whether, in the event that the sub-section is exhaustive, the Tribunal is bound to find that TNCL is not in breach of s.92D. Counsel for Actors Equity and the AJA submitted that even if s.92B(1) sets out the only three situations in which a breach of s.92D will occur, that does not end the matter. It was contended that on the facts of this case NTHL falls within the terms of paragraph (a) of s.92B(1) with the consequence that the Tribunal is not bound to find that TNCL is not in breach of s.92D.
The first issue is the main one, namely, whether s.92B(1) defines exhaustively the meaning of the expression "being in a position to exercise control of a company" in s.92D. Section 92B(1) is in the following terms:

92B.(1) for the purposes of this Division, other than sub-sections 92D(2), (5) and (6) a person who -

(a) is in a position to exercise control of more than 15% of the maximum number of votes that could be cast on a poll at, or arising out of, a general meeting of a company, whether he is in such a position as regards all questions that could be submitted to such a poll or as regards one or more only of such questions;

(b) has shareholding interests in a company, being shareholding interests in respect of shares of a kind carrying voting rights on all questions at general meetings of the company, exceeding in amount 15% of the total of the amounts paid on all shares in the company of a kind carrying such voting rights; or

(c) has shareholding interests in a company exceeding in amount 15% of the total of the amounts paid on all shares in the company,

shall be deemed (but not to the exclusion of any other person) to be in a position to exercise control of that company, of any votes, in respect of another company, of which that company is in a position to exercise control and of all acts and operations of that company.

The other pertinent section is 91(1), which relevantly provides:

91. (1) In this Division, unless the contrary intention appears -

"control" includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights;

Paragraph (a) of sub-section 92B(1) contains a modified version of what may be called the common law test of "control of a company". In a series of English and Australian decisions it has been established that "control of a company" under the general law means control of a majority of votes at a general meeting on all matters able to be dealt with at such a meeting (See W.P. Keighery Pty Limited v. Federal Commissioner of Taxation (1957) 100 CLR 66, at pp.84-89; and Mendes v. Commissioner of Probate Duties (Vic.) (1967) 122 CLR 152, at pp. 161-164).
Paragraph 92B(1)(a) relaxes this test in two ways. First, it reduces the necessary percentage of votes able to be cast at a poll from 50% to 15%. Secondly, the votes need be exercisable only in relation to one question rather than in relation to all questions. These amendments to the general test of control are evidence of Parliament's intention to widen the notion of "control of a company" for the purposes of the Act. That intention is also demonstrated by paragraphs (b) and (c) of s.92B(1), which introduce a new concept of control - that of a "shareholding interest" - into the Act.
The question is whether the legislature, despite its intention to broaden the meaning of "control of a company", nevertheless meant to confine the concept to the three situations set out in in s.92B(1). In support of that view, counsel for the two groups of applicants made a number of submissions. The principal submission, shortly stated, was that the concept of "control" must be confined to the three criteria in s.92B(1) because no other sensible meaning can be given to the words. It was argued that the Act distinguishes the concept of "control of a company" from the concepts of "control of the acts and operations of a company", "control of a licence" and "influence", all of which are contained in the Act. It was then contended that the expression "control of a company" cannot be given any of those meanings, and that in the absence of any other workable meaning, it must be taken that s.92B(1) contains an exhaustive definition of the expression.
Counsel for the two groups of applicants referred to s.92A(1) of the Act, which was evidently intended to define exhaustively the concept of "being in a position to exercise control of a licence". Reliance was placed on the fact that the marginal note to s.92A ("Meaning of Control of a Licence") is in identical form to the marginal note to s.92B ("Meaning of Control of a Company"). It was submitted, in accordance with s.15AB of the Acts Interpretation Act, 1901 that the marginal notes might be used in interpretation and showed that ss.92A and 92B were both intended to define exhaustively the meaning of the respective expressions.
Counsel also referred to s.92D(2), which imposes three prohibitions in relation to the aggregate control of a licence by two or more foreign persons. Paragraphs (a), (b) and (c) of s.92D(2) are substantially identical to paragraphs (a), (b) and (c) of s.92B(1), except that the relevant percentage is 20% and not 15%. Section 92D(2) is clearly intended to define exhaustively the prohibitions upon aggregate control of a licence by two or more foreign persons. It was argued that s.92B(1), read in conjunction with s.92D(2), must also be taken to define exhaustively the prohibitions upon control by singular foreign persons.

As far as this last argument is concerned, a study of the scheme and history of Division 3 of Part IV suggests that ss.92D(1) and (2) deal with two different concepts. Sub-section 92D(1) imposes the general condition that a foreign person shall not be in a position to "control" a licensee company. Sub-section 92D(2) imposes the more specific condition that two or more foreign persons shall not fall within the terms of paragraphs (a), (b) or (c). Prior to 1981, the Act treated the ownership of shares by singular foreign persons and aggregate ownership by two or more foreign persons in the same way. The prohibition against both types of share ownership was contained in the one sub-section (old s.92D(1))and was worded in the way that s.92D(2) is worded in the present Act - that is, by expressing the licence to be "subject to a condition" and then listing, in numbered paragraphs, the situations in which the condition will be breached. By contrast, the new s.92D(1), introduced into the Act in 1981, uses the general words "a person ... shall not be in a position to exercise control, either directly or indirectly...". It will be noted that the same form of words was used in s.92(1) of the 1960 Act, which dealt with control of television licences. In his second reading speech to the Broadcasting and Television Amendment Bill of 1960 (Hansard, House of Representatives, 12 May 1960, p. 1704), the Postmaster-General, Mr Davidson, said of those words (at p.1705):

"The Government has made it quite clear that ... section 92 refers not merely to legal control or control by voting power, but to practical and commercial control by any means."

In using the same words in the present s.92D(1), the legislature in 1981 seems to have intended to convey a similar idea. If so, the notion of "control" conveyed by s.92D(1) is very wide, and would extend beyond the situations set out in s.92B(1). Indeed, if it were otherwise, there was little purpose to be served in altering the format of the Division. The legislature could simply have expressed s.92D(1) in the same way as s.92D(2), by stating that a licence was "subject to a condition" and then listing, in numbered paragraphs, the three situations in s.92B(1). Thus, the words of s.92D(2) do not, in my opinion, provide a basis for reading down the notion of "control" in s.92D(1).
Counsel for the two groups of applicants also placed reliance upon some remarks of the Minister for Communications, Mr Sinclair, made during his second reading speech to the Broadcasting and Television Amendment Bill 1981 (Hansard, House of Representatives, 3 June 1981, p.2995). Referring to s.92D of the Act, the Minister said (at p.3001):

"The interpretation of the provision has presented difficulties because of the lack of definition of 'resident' and the meaning of 'control' - that is, whether it is commercial control, up to 50 per cent of votes, or control as defined in the Act; that is, 15 per cent of votes and shares."

Further, counsel again made reference to the rule of construction of a penal statute (see answer to Question (i).
Finally, it was argued that s.91(1) cannot be relied upon to broaden the concept of "control" in s.92D. That sub-section, it was said, defines control by reference to "control" itself and says nothing of the content of the concept of control. It deals only with the means by which it is exercised, such as trusts, agreements, arrangements, undertakings and so forth.
I agree with the view that s.91(1) does not, of itself, widen the concept of control. That provision cannot be used as a basis for arguing that s.92B(1) is not exhaustive. However, despite the plausible arguments to the contrary, I am of opinion that there are other sufficiently strong indications in the Act that s.92B(1) was not intended to codify the meaning of the expression "being in a position to exercise control of a company" in s.92D.
First, regard must be paid to the nature and purpose of "deeming" provisions. As Lord Radcliffe said in St. Aubyn v. Attorney-General (1952) AC 15, at p.53:

"The word 'deemed' is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible."

The word "deemed" may be used in any of those senses (see Redland Shire Council v. Stradbroke Rutile Pty Limited (1974) 133 CLR 641 at p.655). It is most often used for the purpose of putting beyond doubt what is uncertain or creating a statutory fiction (Muller v. Dalgety & Co. Ltd. (1909) 9 CLR 693, at p.696; Barclays Bank Limited v. Inland Revenue Commissioners (1961) AC 509 at p.528). It is true that there is no presumption, still less any rule, that wherever the word "deemed" is used in a statute it will serve that purpose (Hunter Douglas Australia Pty Ltd v. Perma Blinds (1970) 122 CLR 49 at p.67). The precise wording of the provision in question and the purpose for which it was included in the Act must always be considered. But it should be borne in mind that exhaustive deeming clauses are the exception rather than the rule.
An example of an exhaustive deeming provision is to be found in the old case of R. v. Norfolk County Council (1891) 60 L.J.Q.B. 379. There a clause beginning, "The following ... shall be deemed to be" was held to be an exhaustive definition, because it purported to cover all of the categories which were logically open. This is not such a case. Section 92B(1) does not even go near to exhausting all of the possible situations in which effective control may be exercised over a company.
In my opinion, there are several indications in the Act that s.92B(1) was not intended to be an exhaustive definition. I do not think that the marginal note is decisive. Although permissible as an aid to interpretation, a marginal note is generally a "most unsure guide" (Dugan v. Mirror Newspapers Limited (1978) 22 ALR 439 at p.447). Similarly, I do not think that much reliance should be placed upon the general words of the Minister in his second reading speech of the 3 June 1981. Nor is it useful to have resort to the rule of construction relating to a penal statute.
One consideration is that words such as "if, and only if" are used elsewhere in the Act when it is intended to lay down an exhaustive definition (e.g. s.92D(4)). No reason was suggested as to why this legislative phrase was not used in s.92B(1) if the intention of Parliament was to make the section exhaustive.
A second consideration is that if s.92B(1) is exhaustive, the words "directly or indirectly" in s.92D(1) would appear to serve no useful purpose. Each of the criteria in s.92B(1) speaks of a type of control which is direct not indirect. Presumably the legislature in using the word "indirectly" in s.92B(1) envisaged less obvious forms of control than those contained in paragraphs (a), (b) and (c) of s.92B(1).
Thirdly, it is to be noted that s.92B(1) deems three consequences for a person who fits any or all of the criteria in paragraphs (a), (b) and (c). That person is deemed to be in a position to exercise three types of control. These are control of:-

(a) that company;

(b) any votes, in respect of another company, of which that company is in a position to exercise control; and,

(c) all acts and operations of that company.

Thus the deeming in s.92B(1), if it constitutes an exhaustive definition of being in a position to exercise control, defines exhaustively not one concept but three. Such a result does not fit well with the applicants' argument that the concept of "control of a company" must be kept distinct from the concept of "control of the acts and operations of a company". Moreover, that result would create problems with the operation of s.92A. Paragraph 92A(1)(c) provides that a person is deemed to be in a position to exercise control of a licence if that person is in a position to control, inter alia, "the operations conducted under the licence". If s.92B(1) is exhaustive, the only way a person can be held to control the "acts and operations" of the licensee company is by one of the means set out in paragraphs (a), (b) and (c). Yet, if that is so, sub-section 92A(2) is meaningless. Neither an advertiser who sponsors programmes, nor a supplier of programmes, could ever "control" the operations conducted under the licence within the meaning of the Act. Hence, there would be no need to exclude them from the operation of s.92A(1)(c).
In my opinion, the object and purpose of Division 3 of Part IV of the Act would be better served by giving a broad meaning to the expression "control of a company" in s.92D(1). The words should not, in my view, be restricted by the deeming provisions in s.92B(1). They should be given their ordinary and natural meaning, recognizing the fact that effective control may be exercised over a company by means other than those contained in s.92B(1). I consider the term "in a position to exercise control of a company" in s.92D(1) should be taken to mean the power to direct or restrain what the company may do on any substantial issue. The situations referred to in s.92B(1) will be included within the expression "control of a company", but do not exclusively define its limits. The application of such a definition may give rise to difficult questions of fact in future cases, but that is to be preferred to an illogical interpretation of s.92B(1) which would stultify the purpose of the Act.
For these reasons, I would answer Question (ii) "Sections 90E and 92B do not exhaustively define the meaning of 'being in a position to exercise control directly or indirectly of a company' within the meaning of sub-sections 90G(1) and 92D(1)."
It becomes unnecessary to deal with the latter part of Question (ii).
The third question for the determination of the Court is as follows:

(iii) Whether, as at 5 September 1985, by reason only of:

(a) Article 98(2)(b) of the Articles of Association of NTHL; and/or

(b) Clause 4 of the Memorandum of Association of NTHL and Article 8 of the Articles of Association of NTHL;

TNCL was in a position to exercise control of NTHL;

This question arises assuming ss. 90E and 92B do not define exhaustively the meaning of the expression "being in a position to exercise control of a company". It then becomes necessary to determine whether TNCL was, at 5 September 1985, in a position to exercise control of NTHL within the meaning of the Act.
It is convenient to set out the provisions in question. Article 98(2)(b) of the Articles of Association of NTHL is as follows:

"98. (2) After the appointment of one or more Elected Directors (as hereinafter referred to) pursuant to Article 114(6) or the commencement of the special meeting of holders for the time being of voting preference shares to be held immediately after the first annual general meeting held after the adoption of this Article, whichever shall first occur, but subject to Article 100 the holders for the time being of the voting preference shares may elect or appoint as hereinafter provided up to one half of the maximum number of Directors as specified by sub-Article (1) above (hereinafter referred to as the "Elected Directors") and the holder or holders for the time being of the ordinary shares may appoint as hereinafter provided up to:

...

(b) during such time as a notice shall have been given by the holder or holders for the time being of a majority of the ordinary shares on issue specifying a lesser number than one half such maximum number and the conditions and requirements for the operation of the notice set out therein have been and remain satisfied, such lesser number."

Clause 4 of the Memorandum of Association of NTHL is as follows:

"4.(1) A special resolution altering or adding to the Articles of Association of the Company (as altered or added to from time to time in accordance with the Companies Act, 1981 and this clause 4) shall not have any effect unless and until the consent in writing of the holder or all the holders for the time being of all of the shares in the Company deemed pursuant to Section 113(6) of the Companies Act, 1981 to have been allotted on the date of the incorporation of the Company to such alteration or addition shall have been given to the Company at its registered office.

(2) Amendment or omission of sub-clause 4(1) or this sub-clause 4(2) shall be prohibited."

Finally, Article 8 is as follows:

"8. Notwithstanding any other Article hereof in addition to the other rights conferred by these Articles, the ordinary shares shall confer the right that no allotment of shares or options will be made and no rights over unissued shares will be granted by the Company without the prior consent in writing of the holder or holders for the time being of a majority of the ordinary shares (which consent may be withheld or given conditionally or unconditionally in the full discretion of the holders of such majority)."

It will be seen that, as at 5 September 1985, Article 98(2)(b) entitled TNCL, as the holder for the time being of all of the ordinary shares in NTHL, to appoint up to half of the Board of NTHL. Thus, TNCL was in a position to assume a power of veto over management decisions to be made by the board of NTHL. However TNCL had in fact, appointed only three out of seven directors. It had not exercised its right to appoint a fourth director. By Clause 4 of the Memorandum of Association, TNCL had at 5 September 1985 a power to veto changes to the Articles of NTHL. Article 8 gave TNCL on the relevant date a right of veto over the allotment by NTHL of shares or options, and the granting by NTHL of any rights over unissued shares. The question at issue is whether, by reason only of its having these rights, TNCL was in a position to exercise control of NTHL.
It is convenient to deal first with the effect of Article 98(2)(b) alone. Counsel for both groups of applicants submitted that the question should be answered "No". It was argued first, that TNCL's rights under Article 98(2)(b) were not relevant because the test for the existence of control of a company does not include control of its board of directors. Sections 90E and 92B show, it was said, that Parliament was concerned with the extent of foreign control only where it amounted to control over the general meeting of the company through voting power and the holding of shareholding interests.
I have already stated my view that ss.90E and 92B do not define exhaustively the meaning of the expression "in a position to exercise control of a company" for the purposes of the Act. That being so, there is no logical reason to read down the meaning of the expression by reference to ss.90E and 92B. Still less should it be read down by reference to the common law test of control laid down in cases such as Mendes (supra). Sections 90E and 92B were themselves enacted to widen the common law test. In my opinion, control of the board of directors of a company falls within the expression "in a position to exercise control of a company". Such a result is consistent with general company law principle. For example, a company is resident at the place where its "central management and control abides", which is the place where the board of directors meet (see Swedish Central Railway Company Limited v. Thompson (1925) AC 495 at p.503; North Australian Pastoral Company Limited v. Federal Commissioner of Taxation (1946) 71 CLR 623 at p.628).
The second argument advanced by counsel for both groups of applicants was that, even if control of the board of directors be relevant, TNCL's power was only to appoint half of the board of NTHL and did not put it in a position to exercise control of that company. It was argued that a power of veto does not constitute control in the relevant sense. Control, it was said, exists only where there is a power to get one's own will.
I do not agree that the concept of control is so limited. The Oxford English Dictionary defines "control" as "to exercise restraint or direction". A power to veto is a power to restrain, and hence to control. This view of control accords, in general, with the view of the concept recently taken by the New South Wales Court of Appeal in North Sydney Brick & Tile Co. Ltd. v. Darvall (1986) 4 ACLC 539 at p 545; See also Re Kornblum's Furnishings Ltd (1982) VR 123 at pp 132-134; and Re Herald and Weekly Times Ltd; T.V.W. Enterprises Pty Limited v. Queensland Press Ltd (1983) 7 ACLR 821 at p 838).
Counsel for both groups of applicants next argued that TNCL did not in any case have control of the board of directors of NTHL because it had, as at 5 September 1985, appointed only three out of seven board members. It was contended that even if a power of veto is sufficient to give control, TNCL did not at the relevant date have a presently exercisable power of veto. It merely had a right, as yet unexercised, to put itself in that position (by appointing a fourth director). Reference was made to the decision of the High Court in W.P. Keighery Pty Ltd v. Federal Commissioner of Taxation (1957) 100 CLR 66. It was there held that a company was "capable of being controlled" by a person or group of persons at a particular date within the meaning of s.105(1)(f) of the Income Tax and Social Services Contribution Act 1936-1952 only where that person or group had at the relevant date a presently exercisable power of control. The essence of the decision was that having a potential to exercise a power in the future is not the same as having a present right to exercise that power. (See also John Shields and Co. (Perth) Ltd. v. Commissioners of Inland Revenue (1950) 29 Tax Cas. 475).
Counsel relied upon the reasoning in Keighery in support of their argument that TNCL was not in a position to exercise control of NTHL at the relevant date. It was not enough, it was argued, that TNCL had appointed three out of seven board members and was entitled at that time to appoint one more. At best, TNCL was merely in a position to put itself in a position to exercise control of NTHL.
It is necessary to examine the decision in Keighery in more detail. The facts were that a company by the terms of the issue of its redeemable preference shares had reserved the power to pay off any part of the capital paid up on those shares. The power was subject to two conditions. First, that not less than seven days' notice of such a payment would be given and, secondly, that no such payment should be made between 24 June and 7 July. The company's two directors, Mr Keighery and his wife, had by virtue of the articles authority to exercise the power of redemption. One of the issues was whether, at 30 June, the company was "capable of being controlled" by Mr Keighery and his wife. The Court held that it was not because, inter alia, the Keigherys did not at 30 June have a presently exercisable right to redeem.

In my opinion, the decision in Keighery is not decisive of the present question. First, it is to be noted that the provision there in question, s.105(1)(f) of the Income Tax and Social Services Contribution Act, was worded differently from the provision now under consideration. The words "in a position" were not present. Those words, which appear in s.92D(1) of the Broadcasting and Television Act, convey a wider concept of control. They are capable of applying to a situation where the control is not being exercised in fact as at the date of the enquiry. The words are, thus, "in addition to, and expansive of, 'control' simpliciter" (see Equiticorp Industries Ltd v. A.C.I. International Ltd (1986) 10 ACLR 568 at p.572).
Secondly, the power in question in Keighery was a power to redeem preference shares. Such a power, by its nature, is contingent upon a number of factors, some of which may be out of the control of the holder of the power. The requirement that there be profits from which to redeem the shares is one example. The fact that the power in Keighery was contingent upon external conditions being fulfilled was an important factor in the Court's decision that the power was not presently execisable (see at pp.88-89). By contrast, in this case, the power to appoint directors was exercisable merely upon the issuing of a notice. It was not contingent upon the fulfilment of conditions outside TNCL's control.
There is a third reason for distinguishing Keighery from the present case. The power to redeem in Keighery was, by the terms of the issue of the shares, incapable of being exercised on the relevant date (30 June). It was, therefore, accurate to speak of the power as not being "presently exercisable". On the other hand, TNCL's power to appoint a fourth director was capable of being exercised on 5 September 1985. TNCL simply did not exercise it. As a matter of the ordinary use of language, the power was, in my view, "presently exercisable" even if it had not, in fact, been exercised. Thus, the requirement laid down in Keighery that the power must be presently exercisable is met in this case. It follows that TNCL was by, virtue of its being capable of appointing a fourth director on 5 September 1985, "in a position to exercise control" of NTHL at that date.
Counsel for both groups of applicants contended, however, that in order to hold that TNCL was in a position to exercise control of NTHL the Court would have to assume that the appointed directors would vote en bloc at the direction of TNCL. This was to assume that the directors would act in breach of their fiduciary obligations to the company. It would also, it was said, involve a possible finding of criminal misconduct under s.229(4) of the Companies Code.
Strictly speaking, the issue of the directors' adherence to their fiduciary duty is irrelevant to this question. It is TNCL's power to appoint directors, not its control of what they do, which is determinitive of whether it is thereby in a position to exercise control of NTHL. But were any assumptions needed to be made as to the conduct of the appointed directors, I would think it realistic to assume that they would act generally in the interests of the company which appointed them. Such behaviour would not, of itself, constitute a breach of duty "unless it can also be inferred that the directors, so nominated, would so act even if they were of the view that their acts were not in the best interests of the company" (Re Broadcasting Station 2GB Pty Limited (1964-1965) N.S.W.R. 1648 at p.1663 per Jacobs J). As was pointed out in the 2GB Case, it would make the position of a nominee or representative director an impossibility to require that he approach each company problem with a completely open mind. It is both realistic and not improper to expect that such directors will follow the interests of the company which appointed them subject to the qualification that they will not so act if of the view that their acts would not be in the interests of the company as a whole. In my opinion, it may be assumed that the nominee directors of NTHL will act in such a way. Such an assumption does not, however, lead to the assumption they will act in breach of their fiduciary duty as directors. The applicants' argument must therefore be rejected.
In my opinion, Question (iii) should be answered "Yes".
In view of the answers I propose should be given to Questions (i), (ii) and (iii), it appears to me it is unnecessary at this stage to give answers to the remaining questions referred by the Tribunal. I propose that determination of the remaining questions be stood over, with liberty to any party including the Tribunal to restore the proceedings for further consideration should they be so advised. The two groups of applicants should pay to Actors Equity and the A.J.A. and to the Tribunal their respective costs to date.

JUDGE2

This is a reference by the Australian Broadcasting Tribunal pursuant to s. 22B of the Broadcasting and Television Act 1942 ("the Act"). The reference relates to applications made to the Tribunal for approval of transactions relating to the ownership and control of radio and television licences by The News Corporation Limited ("TNCL"), Network Ten Holdings Limited ("NTHL"), Network Ten Investments Limited ("NTIL") and others.

I have had the advantage of reading the reasons for judgment of the Chief Judge. His Honour has set out the relevant paragraphs of the Special Case and the statutory provisions so I need not repeat them.
Nine questions have been referred for determination by the Court, the most important of which is the first question which is as follows:

"Whether, in considering whether TNCL has a shareholding interest such that it would be deemed to be in a position to exercise control of TNHL and its subsidiaries pursuant to sections 90E and 92B of the Act, the premiums paid on the shares referred to in paragraphs 9(b) and 10(b) above (of the Special Case) are to be included in the calculations of:

(a) 'an amount equal to the value of the shares', or

(b) 'an amount equal to the value ... of the person's interest in the shares',

within the meaning of paragraphs 90(3)(b) and 91(3)(b) of the Act."

I agree with the conclusion of the Chief Judge that question (i) should be answered "yes" and with his reasons for that conclusion. I shall make some observations of my own.
Division 2 of Part IV of the Act is concerned with the limitation of ownership or control of commercial broadcasting stations. Division 3 of Part IV deals with the limitation of ownership or control of commercial television stations. The two divisions are substantially the same. The most important sections for present purposes are ss. 90E and 90(3)(b) which appear in Division 2 relating to commercial broadcasting stations and ss. 92B and 91(3)(b) in Division 3 relating to commercial television stations. Although the reference concerns both radio and television licences, and therefore Divisions 2 and 3 of Part IV of the Act, I shall for convenience refer to the sections in Division 3 relating to television stations as they were the provisions most frequently referred to in argument.
The Act is concerned to ensure, amongst other things, that foreign persons are not, during the currency of a television licence, in a position to exercise control, directly or indirectly, of the company holding the licence: s. 92D. The Act defines "control" very widely as including "control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights": sub-s. 91(1).
The Act fastens upon voting power and financial interest in the licensee company as the determinants of control: ss. 92B and 91. The expression "financial interest" is defined in sub-s. 91(1) as meaning a "shareholding interest" or a "loan interest". Each of those expressions is further defined. A "shareholding interest" is defined, so far as is presently relevant, in para. 91(3)(b) of the Act as follows:

"(3) For the purposes of this Division -

...

(b) the amount of the shareholding interest is an amount equal to the value of the shares, or of the person's interest in the shares, as the case requires, on the basis that the value of the shares is equal to the amount paid on the shares."

A person holds a "loan interest" in a licensee company if he is beneficially entitled to moneys payable by the company being moneys, other than interest, payable under debentures of the company or otherwise by way of repayment of moneys lent to or deposited with the company or moneys payable under negotiable instruments where the instrument is in respect of or the liability to pay the moneys is in substitution for the liability to pay moneys of the kind to which I have just referred: sub-s. 91(4).
The Act is thus directed to ensuring that foreign persons are not in a position to exercise control of the licensee company through voting power or a power exercisable through their financial stake in the company. It is "shareholding interests" with which this reference is concerned.
It is plain that questions of control, whether through voting power or financial interests, are to be determined by practical and commercial considerations rather than highly refined legalistic tests. The relevant provisions of the Act are not directed to or concerned with subtleties of company law.
Paragraph 91(3)(b) does not measure the "amount equal to the value" of the relevant shares with reference to the nominal value or the par value or the capital paid up on the shares. The paragraph is concerned with the "amount" of the shareholding interest in the sense of the size of the shareholding and defines it as being an amount "equal to the value of the shares". The "value" attributed to the shares is not their market value, but "the amount paid on the shares". That expression (and the similar expression in sub-s. 92B(1) "the total of the amounts paid on all shares") is, I must confess, a curious use of language and the source of the problem in this case. If the legislature had desired to define the value of shares with reference to the capital paid up on the shares it could easily have said so; but it chose instead to use more general, though regrettably more elliptical, words.
It would be strange if Parliament intended that the size or amount of a person's shareholding in a licensee company is to be determined by juggling with the finer intricacies of company law when the critical words of the statutory provision are themselves not the true or accepted language of the company lawyer.
I cannot accept that Parliament intended that foreign persons could escape the legislative net by holding shares in a company, the paid up value of which is a mere scintilla of its total paid up capital, yet in fact have a huge financial stake or interest in the company through the payment of premium for the shares. As I discern the purpose of the legislation, both through the language of the Act, in particular Divisions 2 and 3 themselves, and the purpose underlying the Act, it would make a nonsense of it to hold that large amounts paid by way of premium for shares with a minimum par value fell outside the test of valuing the shares for which para. 91(3)(b) and sub-s. 92B(1) provide. I agree with the reasons given by the Chief Judge for his conclusion that the expressions "the amount paid on the shares" (sub-s. 91(3)) and "the total of the amounts paid on all shares" (sub-s. 92B(1)) are capable of applying both to amounts paid by way of capital and by way of premium on the shares.
The view that share premium is in essence capital or should at least be assimilated with capital has become increasingly and widely held in more recent years: see Courtaulds Investments Ltd. v. Fleming (1969) 1 WLR 1683 per Buckley J. at 1692-4 and the Report of the Cohen Committee on Company Law, Cmd. Paper 6659 para. 108. However, whether strictly part of share capital or not, the relevant words in para. 93(1)(b) and sub-s. 92B(1) encompass amounts paid by way of share capital and by way of premium on the shares.
Question (ii)

"Whether sub-sections 90E and 92B exhaustively define the meaning of 'being in a position to exercise control, directly or indirectly, of a company' within the meaning of sub-sections 90G(1) and 92D(1) and with the consequence that the Tribunal is bound to find that the foreign persons are not in a position to exercise control, directly or indirectly, of the licensee companies."

I agree with the view of the Chief Judge that this question should be answered in the negative and with his reasons for that conclusion.
Question (iii)

"Whether, as at 5 September 1985, by reason only of:

(a) Article 98(2)(b) of the Articles of Association of NTHL; and/or

(b) Clause 4 of the Memorandum of Association of NTHL and Article 8 of the Articles of Association of NTHL;

TNCL was in a position to exercise control of NTHL."

I agree with the opinion of the Chief Judge that this question should be answered "yes" and with the reasons which he has given therefor.
In view of the answers to these three questions it is unnecessary in my view to consider the remaining questions. Indeed, the answers to certain of those questions turn to some extent upon assumptions of hypothetical facts which it is generally undesirable to deal with in considering a Special Case.
I would stand over the remaining questions so that the Tribunal may consider the Court's answers to the first three questions and then deal with the applications before it. If it becomes necessary for the Court to consider the remaining questions, or any of them, the Tribunal or the parties may restore the matter to the list. I agree with the order for costs proposed by the Chief Judge.

JUDGE3

Question (i) I agree with the Chief Judge, whose reasons I have had the benefit of reading, that this question should be answered in the affirmative.

The words "the amount paid on the shares" where used in the Act are not terms of art. As mentioned by the Chief Judge, Regulation 12(1) of Table A Articles of Association is an illustration of the use of the phrase "money unpaid on the shares" as applicable not only in the case of moneys unpaid on account of nominal value but as applicable also in the case of moneys unpaid by way of premium. In my opinion, a reference to the amount paid on shares is, as a matter of ordinary language, capable of picking up both share capital and any premium paid on the issue of the shares. Since 1948, in legislation, and, before that time as a matter of common understanding, there has been a tendency to assimilate a share premium to capital in the strict sense. The Cohen Committee on Company Law said in 1946 (no doubt having in mind Drown's Case) that "share premiums are in essence capital": (para.108) Cmd. 6659; see the discussion in Wallace and Young, Australian Company Law and Practice at p.224; Companies and Securities Law Review Committee, September 1986, Report to the Ministerial Council on the Treatment of Share Premiums - Appendix B pp.1-3 and p.26. In similar vein, the Companies and Securities Review Committee said (at p.3) that "(t)here should be no quarrel with the general philosophy that premiums received upon the issue of shares should be assimilated to paid-up capital"; see also Courtaulds Investments Ltd. v. Fleming (1969) 1 WLR 1683 per Buckley J. at pp 1692-4.
There is nothing in the context of the legislation which would justify placing upon the words now in question any special or limited meaning of the kind suggested by the applicants so as to restrict the operation of the legislation to what is, strictly speaking, capital. On the contrary, as the Chief Judge has said, the objects and purpose of the legislation would be better served if there were taken into account all amounts paid in this connection, whether they be capital in the strict sense or, to use the words of the Court of Appeal in Re Duff's Settlement (1951) Ch 923 at p 929, capital "notionally" paid up in the form of a premium.
Moreover, reference to the history of the legislation, if anything, reinforces this conclusion. The precursors of the provisions with which we are presently concerned used very different language. For instance, s.53B(a) of the Act, inserted by Act No. 33 of 1956, spoke of shares representing a stated percentage of "the issued capital". See also s.92D, inserted by Act No. 38 of 1965. The term "issued capital" is, of course, a term of art with a settled meaning. The present provisions, by contrast, make no reference to capital. Instead, they employ terms "the amount paid..." which, for this purpose, are neutral in their character and are thus capable of picking up both capital and strictly non-capital payments.
It was argued on behalf of the applicants that even if a share premium was an "amount paid", it was paid "for" and not "on" the shares. But, as has been said, we are not here concerned with a term of art and, in my view, it is accurate to describe a payment by way of premium as a payment "on" the shares in the sense that it is a payment made with reference to the shares. This accords with one of the dictionary meanings of "on" (see, e.g. the Macquarie Dictionary, item 10) and is appropriate in the present context.

Question (ii)

I agree with the answer to this question proposed by the Chief Judge for the reasons he has given.
To understand the intended meaning of s.92D(1), it is necessary to refer to the history of the legislation so far as it has dealt with foreign ownership and control of a licence. For reasons which will appear, it will be necessary also to mention the development of the statutory restrictions on the domestic control of a licence. By Act No. 33 of 1956, s.92 was inserted in what became Division 3 of Part IV of the Act. It provided that a licence was subject to a condition that -

(a) shares representing not less than 80 per cent of the issued capital of the licensee will be beneficially owned by persons each of whom is either a resident of Australia (other than a company) or a company controlled by persons (other than companies) who are residents of Australia; and

(b) shares representing more than 15 per cent of the issued capital of the licensee will not be beneficially owned by a person (other than a company) who is not a resident of Australia or by a company controlled, directly or indirectly, by persons who are not residents of Australia.

By s.91, inserted at that time, it was provided that a person was not to own, or be in a position to exercise control, either directly or indirectly, of, more than -

(a) one commercial television station within the Australian Capital Territory or within the radius of 30 miles of the G.P.O. in the capital city of a State; or

(b) two commercial television stations in Australia.

By Act No. 36 of 1960, in substituting a new Division 3, s.92D was inserted in substitution for the former s.92. In his Second Reading Speech, the Postmaster-General explained the mischief sought to be remedied:

"I now come to a group of clauses in the bill which substitute a new Division 3 for the Division 3 of Part IV that is now in the act. Division 3 in the act at present contains two very significant sections. The first is section 91 which provides that a person shall not be in a position to control directly or indirectly more than two television licences. The second is section 92 which provides that 80 per cent. of the share capital of a company holding a licence shall be held by residents of this country and that no non-resident shall hold more than 15 per cent. of that capital. These provisions were enacted to express this Government's policy that this very important channel of communication should not fall into the hands of too few, and that the benefit derived from the exercise of licences which lay in the grant of the Government should be spread widely through the Australian community.

Experience has shown that this division could fail to operate so as to carry out that policy because a legal view could be taken that the control of a company rests with the general meeting of the company and that to control a general meeting, and thus control the company, it is necessary to be able to exercise as of legal right 51 per cent. of the voting power in the general meeting. The Government, however, recognizes that a company may be effectively controlled in a commercial sense by persons who hold less than 51 per cent. of the voting power, and also that in relation to such an activity as the management of a television station, control can be exercised by a variety of means other than the possession of voting power at a general meeting. The Government does not deviate from the policy which it asked this Parliament to express in sections 91 and 92 of the existing act and accordingly I have retained them in substance in the new Division 3. But the Government is desirous that there should be no frustration of that policy by sheltering behind a legal concept whilst in truth and in commercial reality the policy is being defeated." (Emphasis added)

By s.91(2) of the new Division, "control" was defined to include control as a result of, or by means of, trusts, agreements, arrangements, understanding and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights. By s.92(1) of the new Division, a person was not to be in a position to exercise control, either directly or indirectly, of licences in respect of more than one or two licences, as the case may be, in respect of commercial television stations as previously provided. For the purposes of s.92, a person was deemed to be in a position to exercise control of a licence if -

(a) that person was in a position to exercise control of the company that holds the licence; or

(b) that person was in a position to exercise control of the operations conducted under or by virtue of the licence, the management of the station or the selection or provision of its programmes (s.92A).

By s.92B, for the purposes of Division 3, a person who was or who by any application or applications of this section, is deemed to be, in a position to exercise control of more than 15 per cent. of the total votes that could be cast at a general meeting was deemed to be in a position to exercise control of that company and of any voting rights of that company as a shareholder and of all acts and operations of that company.
Section 92D(1) imported a condition into a licence as to non-resident shareholding in the same terms as the earlier s.92.
By Act No. 38 of 1965, the Division of which s.92D formed part was repealed and replaced by a new Division. However, s.92D was re-enacted in the same terms as the previous s.92D(1).
By Act No. 113 of 1981, the present s.92D, described in the marginal note as "Foreign shareholdings &c.", was inserted. By s.92D(1), a licence is subject to a condition that a foreign person shall not be in a position to exercise control, either directly or indirectly, of the company holding the licence. By s.92D(2), a licence is subject to a further condition that two or more foreign persons shall not -

(a) be in a position to exercise control of more than 20 per cent of the maximum number of votes that could be cast on a poll at, or arising out of, a general meeting of the company holding the licence, whether as regards all questions that could be submitted or as regards one or more of such questions;

(b) hold shareholding interests in the company in respect of shares carrying voting rights on all questions at general meetings, exceeding in amount 20 per cent of the total of the amounts paid on all shares of that kind; or

(c) hold shareholding interests in the company exceeding in amount 20 per cent of the total of the amounts paid on all shares in the company.

A foreign person is defined for the purposes of s.92D as (a) a natural person who is not an Australian citizen; or (b) a company, wherever incorporated, that is controlled by a person or persons referred to in (a) (s.92D(3)). For the purposes of s.92D(3)(b), a company shall be deemed to be controlled by a person or persons if, and only if -

(a) the person is, or persons are, in a position to exercise control of more than 50 per cent of the maximum number of votes that could be cast on a poll at, or arising out of, a general meeting, whether as regards all questions that could be submitted or as regards one or more only of those questions;

(b) the person holds, or persons hold, shareholding interests carrying voting rights on all questions at general meetings, exceeding in amount 50 per cent of the total of the amounts paid on all shares carrying such rights; or

(c) the person holds, or persons hold, shareholding interests exceeding in amount 50 per cent of the total of the amounts paid on all shares in the company.

(s.92D(4)).

In his Second Reading speech on the Broadcasting and Television Amendment Bill 1981, the Minister for Communications, Mr. Sinclair, said -

"FOREIGN SHAREHOLDINGS

The existing sections 90G and 92D of the Act restrict ownership of shares, but not voting rights, in licensee companies by any individual non-resident to 15 percent, and by the aggregate of non-resident shareholders to 20 per cent, of issued share capital. The interpretation of the provision has presented difficulties because of the lack of definition of 'resident' and the meaning of 'control' - that is, whether it is commercial control, up to 50 per cent of votes, or control as defined in the Act; that is, 15 per cent of votes and shares. These sections have been redrafted to provide a redefinition of restrictions on foreign shareholdings to provide that only Australian citizens and companies in which Australian citizens hold more than 50 per cent of the votes and/or shares, may be 'in a position to control' a licensee company...."

As a concept, "control" is not defined in the Act. Section 91(1) merely defines it so as to include "control" achieved by various informal means. It becomes necessary then to look at the meaning attributed to the notion of "control" under the general law by way of background to the legislation.
In Bank of New South Wales v. The Commonwealth (1948) 76 CLR 1, Dixon J., in the context of a consideration of s.92 of the Constitution, described "control" as "an unfortunate word of such wide and ambiguous import that it has been taken to mean something weaker than 'restraint', something equivalent to 'regulation'." (At p.385). The notion of "control" of a company has, however, acquired a more settled meaning, at least in revenue matters. In B.W. Noble Ltd. v. Inland Revenue Commissioners (1925) 12 Tax Cas 911 at p 926, Rowlatt J., in a passage which has been cited frequently, said that "controlling interest" had a well known meaning, and referred to the situation of a man "whose shareholding in the company is such that he is the shareholder who is more powerful than all the other shareholders put together in general meeting." (See also per Viscount Simon L.C. in British-American Tobacco Co. Ltd. v. Inland Revenue Commissioners (1943) AC 335 at pp 339, 340; per Lord Cooper in John Shields and Co. (Perth), Ltd. v. Commissioners of Inland Revenue (1950) 29 Tax Cas 475 at pp 481-2; Barclays Bank Ltd. v. Inland Revenue Commissioners (1961) AC 509.) In W.P. Keighery Pty. Ltd. v. Federal Commissioner of Taxation (1957) 100 CLR 66, Dixon C.J., Kitto and Taylor JJ. said (at p 84) that "(t)he controlling authority of a company is its general meeting, and...the only way in which a company can be controlled, in the relevant sense of the word, is by the carrying of a resolution at a general meeting." In Mendes v. Commissioner of Probate Duties (Victoria) (1967) 122 CLR 152, Kitto J. (at p 165) held that if in the general meeting one person has the majority of votes on some subjects and another has the majority of votes on other subjects, "neither can truly be said to control the company. The control is divided between them." Taylor J. agreed (at p.166). Windeyer J. (at p.169) said that for the purposes of the revenue laws a member of a company who holds enough shares to give a majority of votes at a general meeting has "control" of the company. "That is the general rule. Control in that sense means the capacity to carry an ordinary resolution at a general meeting." See also Kolotex Hosiery (Australia) Pty. Ltd. v. The Commissioner of Taxation of the Commonwealth of Australia (1973) 130 CLR 64 per Mason J. at pp 77-8; (1975) 132 CLR 535 per Gibbs J. at pp 572-3. On the other hand, in The Commissioner of Taxation of the Commonwealth of Australia v. Commonwealth Aluminium Corporation Limited (1980) 143 CLR 646, the meaning of "control" of a business by non-residents for the purposes of s.136(a) of the Income Tax Assessment Act 1936 was seen to be different. Stephen, Mason and Wilson JJ. said (at pp.659-660) that shareholders, through their power to control the company in general meeting and perhaps through their power to elect directors, may be said to "control" the company, "but as a general rule they do not exercise de facto control of the company's business." Authorities such as Mendes were distinguished as being concerned with the different question of control of the company rather than its business (at p.660).
With this legislative history and general law background in mind, the question of the work intended to be done by s.92B(1) falls to be determined as a matter of statutory interpretation. It is plain that s.92B(1), in modifying the common law test, provides at least one definition of control of a licensee company for the purposes of s.92D(1). The matter of contention is whether s.92B(1) should be construed as the only way in which control can exist for this purpose or whether it is intended to be merely one of the ways in which control may be regarded as capable of being exercised.
Although s.92B(1) bears the marginal note "Meaning of control of a company", it is not, in form at least, framed as a definition or interpretative provision as is s.91(1). Rather, it provides that, in certain specified circumstances, a particular result will follow - a person shall be "deemed" to be in a position to exercise control of the company. Moreover, the provision is not expressed in exhaustive language: it does not in terms say (to borrow the language of s.92D(4)) that a company shall be deemed to be controlled by a person or persons "if, and only if" certain facts exist.
But, even if s.92B(1) is not in form an exclusive definition for the purposes of s.92D(1), is it in substance such a provision? On behalf of the applicants it is submitted that the deeming effected by s.92B(1) is intended to achieve this result.
In Muller v. Dalgety & Co. Limited (1909) 9 CLR 693, the respondents were charged with the offence created by s.9A(1) of the Immigration Restriction Act 1901 which provided:

"(1) If any vessel, having on board any stowaway, who is a prohibited immigrant, comes into any port in Australia, the master, owners, agents, and charterers of the vessel shall be jointly and severally liable on summary conviction to a penalty of One hundred pounds for each stowaway."

Section 9D was as follows:

"Any person on board a vessel at the time of her arrival from any place outside Australia at any port in Australia who is not -

"(a) a bona fide passenger on the vessel, or

"(b) a member of the crew of the vessel whose name is on the articles,

shall be deemed to be a stowaway, unless the master of the vessel gives notice to an officer that the person is on board the vessel, and does not permit him to land until the officer has had an opportunity of satisfying himself that the person is not a prohibited immigrant."

The marginal note to this section was "Definition of a Stowaway".

It was held that s.9D did not exhaustively define the term stowaway as used in s.9A, but must be construed as an extension of that term, and as indicating that persons belonging to the class mentioned, though not in fact, apart from the section, stowaways, shall be deemed to be stowaways for the purposes of the Act.
Griffith C.J. said (at p.696):

"The first question for determination in this appeal is whether sec.9D is to be read as an interpretation clause in the sense of an exhaustive definition, as suggested by the marginal note, or it is to be read as extending sub modo the sense which would otherwise be given to that word as used in sec.9A.

The word 'deemed' may be used in either sense, but it is more commonly used for the purpose of creating what James L.J. and Lord Cairns L.C. called a 'statutory fiction' (see Hill v. East and West India Dock Co. (9 App Cas, 448 at p 456), that is, for the purpose of extending the meaning of some term to a subject matter which it does not properly designate. When used in that sense it becomes very important to consider the purpose for which the statutory fiction is introduced. An instance of the use of the word in the other sense is to be found in the case R. v. Norfolk County Council (60 LJQB, 379), where it was held that in a clause beginning, 'The following...shall be deemed to be,' the word imported an exclusive definition and not an extension of meaning."

As Windeyer J. observed in Hunter Douglas Australia Pty. Ltd. v. Perma Blinds (1969) 122 CLR 49 at pp 65-7 a "deeming provision" may not create a "statutory fiction"; it need not import artificiality; rather it may simply state the effect of some matter - "the way in which it is to be adjudged". See also University of Wollongong v. Metwally (1984) 56 ALR l per Mason J. at p 12. Where "deemed" is used in a definition to extend its meaning not in a fictional sense but to include matters that might or might not fall within the scope of the word so defined, the position is similar to that where "includes" is used in a definition (see Ex parte Armstrong; Re Hughes (1963) 80 WN 566 per Walsh J. at p 568; D.C. Pearce, Statutory Interpretation in Australia, 2nd ed. at p 50).
In my opinion, this is the present case. The evident object of s.92B(1) is to fix, at 15 per cent, certain percentages of voting power and shareholding interests as a conclusive statement of the existence of control of the company where control is achieved by one of those means. But there is nothing in the language of the Division or in the policy sought to be achieved by its provisions which suggests that it is not possible for a foreign person to be in a position to exercise control by other means for the purposes of the Division, including s.92D(1). On the contrary, when the Division is read as a whole bearing in mind the history of the legislation, it appears that what s.92B(1) is intended to do is to put beyond argument the issue of control where one of the criteria (a), (b) or (c) in that sub-section has been satisfied - it has nothing to say on the different question whether, even if none of those criteria is satisfied, a foreign person is, nonetheless, in a position, by other means, to exercise control of the company within the meaning of s.92D(1). Such a construction is consistent with the policy intended to be achieved by the statute, as explained in the ministerial statements, that de facto control can be exercised in various ways other than owning or voting shares and that the objective of the legislation is to ensure that only Australian citizens and companies in which Australian citizens hold more than 50 per cent of the votes or shares may be in a position to control a licensee company.

Question (iii)

I agree with the answer proposed by Chief Judge and with his reasoning.

Remaining Questions

I agree with the course proposed by the Chief Judge.

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