Swan Television & Radio Broadcasters Limited v Austalian Broadcasting Tribunal

[1985] FCA 375

Re: SWAN TELEVISION AND RADIO BROADCASTERS LIMITED
And: AUSTRALIAN BROADCASTING TRIBUNAL; WESTCOAST TELECASTERS LIMITED; PERTH
TELEVISION LIMITED; WESTERN TELEVISION LIMITED; PUBLIC TELEVISION (W.A.) INC.;
AUSTRALIAN WRITERS' GUILD LIMITED; AUSTRALIAN JOURNALISTS' ASSOCIATION and
MUSICIANS' UNION OF AUSTRALIA
No. WAG 59 of 1985
Broadcasting and Television - Administrative Law
8 FCR 291

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Sweeney(1), Toohey(1) and Wilcox(1) JJ.

CATCHWORDS

Broadcasting and Television - Applications for grant of a television licence - Inquiry into applications by Australian Broadcasting Tribunal - Objection by existing licensee to grant of any new licence on the ground of likely adverse effect on its commercial viability - Information as to financial affairs and programming submitted in support of objection - Directions given by Tribunal relating to disclosure of that information - Whether disclosure should be confined on "need to know" basis - Significance of statutory requirement of public hearing - Whether onus of proof rests upon person seeking directions for restriction of information - Relevance of restrictions of publication of information assembled by Tribunal under s.106A of Broadcasting and Television Act - Relevance to content of directions that existing licensees have put in issue commercial viability - Relevance of the fact that businesses of existing licensees result from grant by the Australian Government of licences to be conducted in the public interests - Disclosure to persons likely to be involved in operating any new television station.

Scott v Scott (1913) AC 417, Russell v Russell (1976) 134 CLR 495, Attorney General v Leveller Magazine Limited (1979) AC440, Re Pochi and Minister for Immigration and Ethnic Affairs (1976) 26 ALR 247 McDonald v Director General of Social Security (1984) 1 F.C.R. 354, The Queen v The Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd (1979) 144 CLR 45 applied. Actors Equity Association v Australian Broadcasting Tribunal (A.A.T., 29 March 1985, not reported) referred to.

Broadcasting and Television Act 1942 ss.19, 83, 106A

Administrative Law - Broadcasting and television - Inquiry by the Australian Broadcasting Tribunal into the grant of an additional television licence - Directions by Tribunal relating to disclosure of documents - Alleged error of law - Whether irrelevant considerations taken into account - Existing licensee contending against new licence - Opposed to production of certain documents - Special position of television licences - Public interest element - Broadcasting and Television Act 1942 (Cth), ss 19, 83(6), 106, 106A, 106B - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1)(e) and (f), 5(2)(a), (b) and (h) - Administrative Appeals Tribunal Act 1975 (Cth), s 35(3).

HEADNOTE

The appellant, a holder of a licence for an existing commercial television station in Perth, appealed against a decision of the court dismissing an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to quash directions made by the Australian Broadcasting Tribunal (the Tribunal) during an inquiry into the granting of a third commercial television station licence. Those directions related to the publication and restricted publication of certain of the appellant's documents. The respondents comprised applicants for the grant of the new licence and associations representing the interests of the public, writers, journalists and musicians.

Held, per curiam: (1) There was no error of law in the Tribunal's understanding and application of s 19 of the Broadcasting and Television Act 1942 (Cth) (the Act). Section 19(2) of the Act does not cast the onus of proof upon a party seeking directions thereunder. In this case it was a sensible and proper course for the Tribunal to require from the party requesting directions under that subsection a specification of the damage or harm which it contended would be occasioned by exposure and it could not be said that the Tribunal, in so doing, was casting the onus of proof upon the appellant.

Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482; McDonald v. Director-General of Social Security (1984) 1 FCR 354, referred to.

Prasad v. Minister for Immigration and Ethnic Affairs (1985) 6 FCR 135; Scott v. Scott (1913) AC 417; Russell v. Russell (1976) 134 CLR 495; 1 Fam LR 11133; Actors' Equity Association of Australia v. Australian Broadcasting Tribunal (1984) 1 AAR 222, referred to.

Further, the competing principles in relation to the Tribunal's "inquiry function" as contained in s 19 of the Act are not affected in any way by ss 106, 106A, 106B of the Act which provisions are directed to a different function of the Tribunal.

(2) Relevant considerations of the Tribunal in relation to the decision whether or not to restrict disclosure of material pursuant to s 19(2) of the Act, the Tribunal was entitled to take consideration:

(i) that the entity requesting restrictions voluntarily chose to enter the inquiry, being a public inquiry, for the purpose of contending against the grant of a licence to a competitor on a basis provided for in s 83(b) of the Act relating to its own commercial viability and it was accordingly open to the Tribunal to conclude that it was not then reasonable for that entity to insist on not disclosing basic evidence of its commercial viability case, and

(ii) that television licences, unlike trade secrets, which have long been protected by the courts from disclosure, do not exist in a market fully open to competition and are not created by the licensees but by a grant made gratis on behalf of the Commonwealth and that accordingly, a greater degree of disclosure of commercial information in relation to their use may well be required.

The Queen v. The Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45, referred to.

HEARING

Perth, 1985, July 29-30; August 1. #DATE 1:8:1985
APPEAL

Appeal against a decision of Forster J dismissing an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to quash certain directions made by the Australian Broadcasting Tribunal.

R. J Meadows, for the appellant.

He referred to ss 17(1), 19, 25(3), 80A, 81(1) and (2), 106, 106A of the Broadcasting and Television Act 1942 (the Act). In making the directions it did, the Tribunal recognised that the documents in question are of a confidential nature and are entitled to protection from publication. The fact that the appellant chose to enter the inquiry is irrelevant. That was the appellant's right and does not bear on the question of confidentiality. Given the provisions of s 106A of the Act, the Tribunal should have recognised that the appellant was entitled to confidentiality notwithstanding the nature of its position as a licensee. The difficulties identified by the Tribunal in conducting an inquiry where the disclosure of many of the documents should be restricted in relation to various groups of people does not bear on the question of confidentiality of the documents. Some of the documents the subject of the direction are recognised expressly by s 106 of the Act to be confidential. (Actors' Equity Association of Australia v. Australian Broadcasting Tribunal (supra)). There is no difference between requesting information under s 106A of the Act and the powers given to the first respondent under s 19 of the Act.

R. S French, for the first respondent (the Australian Broadcasting Tribunal).

D R. Williams QC (with him B D Luscombe), for the second respondent (West Coast Telecasters Ltd).

Because of the special position occupied by the appellant, when it embarked upon the issue of its own and the second, third and fourth respondents' commercial viability, it had to accept some diminution in its privacy. The financial operations of a television licensee are in a different position from the operations of a business created from private assets. The onus is on the appellant to show that there is some good reason for restricting the publication of the appellant's documents.

P A Rowe, for the third respondent (Perth Television Ltd).

M D F O'Sullivan, for the fourth respondent (Western Television Ltd).

It would greatly prejudice the fourth respondent if access to the documents were to be denied to the fourth respondent's expert on programming. The onus was upon the appellant to satisfy the Tribunal pursuant to s 19(2) of the Act that the circumstances existed to justify a direction prohibiting disclosure of the documents to that expert.

Cur adv vult

Solicitors for the appellant: Freehill, Hollingdale & Page.

Solicitor for the first respondent: Australian Government Solicitor.

Solicitors for the second respondent: Robinson Cox.

Solicitors for the third respondent: Jackson McDonald & Co.

Solicitors for the fourth respondent: Stephen Jacques Stone James.

CMH

ORDER

1. The appeal be dismissed.

2. The appellant pay to each of the respondents its costs of the appeal.

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

Appeal dismissed with costs

JUDGE1

This is an appeal against the decison of a single judge of the Court (Forster J.) dismissing an application under the Administrative Decisions (Judicial Review) Act 1977 to quash certain directions made by the Australian Broadcasting Tribunal ("the Tribunal"). The directions were given during the course of a lengthy inquiry, which is still proceeding, into the grant of a licence for a third commercial television station to serve the Perth metropolitan area. The appellant, Swan Television and Radio Broadcasters Limited ("Swan"), and TVW Enterprises Limited ("TVW") are each holders of existing licences. TVW was one of the applicants in the proceedings before Forster J. but it is not a party to this appeal. The respondents West Coast Telecasters Limited ("West Coast"), Perth Television Limited ("Perth") and Western Television Limited ("Western") are each applicants for the grant of a third licence. The remaining respondents - Public Television (W.A.) Inc., Australian Writers' Guild Limited, Australian Journalists' Association and Musicians' Union of Australia appeared before the Tribunal and Forster J. to represent the interests of the public and of writers, journalists and musicians. It is convenient to refer to those respondents, as they were referred to by Forster J. and by the Tribunal, as the special interest parties.

1. The directions the subject of the appeal required that Swan produce to the Tribunal and to other parties various documents. The Tribunal identified the documents and divided them into two categories. In the first category the Tribunal directed that Swan produce to it and to the other parties listed in Schedule 1 to its directions a number of documents "for unrestricted publication". As to the other category, the Tribunal directed that Swan produce to it and to the other parties listed in Schedule 1 "for restricted publication to the Tribunal, the staff of the Tribunal assisting it, the agents of the parties shown in Schedule 1 to the directions, the representatives shown in Schedule 2 to the directions and the persons shown in Schedule 3 to the directions". Put broadly, the persons identified in Schedule 2 were legal representatives of the party named and those identified in Schedule 3 were persons nominated by the party named as having expertise of a technical or commercial nature.

2. By its Notice of Appeal Swan seeks to have the judgment of Forster J. set aside and the decision of the Tribunal quashed. However, it is apparent from the grounds of appeal that Swan's concern is more limited. It is opposed to the special interest parties having any access to the documents ordered to be produced for unrestricted publication. It is also opposed to producing the restricted documents to some of the persons nominated by some of the parties, even though access to those documents is conditional upon an undertaking of non disclosure. Again put shortly, the basis of Swan's objection is that three of the persons in question are closely associated with West Coast and one of them with Western, as directors or otherwise, and that disclosure to those persons will prejudice Swan if either of those applicants is successful in obtaining the grant of a third commercial television licence.

3. We do not find it necessary to set out in detail the reasons expressed by Forster J. for dismissing the appellant's Application. It is, however, useful to note - in summary form - six general propositions adopted by his Honour and which bear upon some of the matters argued before us.
   
   

1. The inquiry is a public inquiry into matters in which the public has an undoubted interest. Prima facie the information upon which the Tribunal makes a decision whether or not there will be a third commercial television station should be public unless a proper case can be made out to restrict the publication of material.

2. The agents of the special interest parties are entitled to attend public sittings of the Tribunal and, unless good reason is shown for restricting their access to documents, they should have access to those documents.

3. Where the Tribunal directed production of documents subject to undertakings, it should be assumed that the undertakings will be adhered to.

4. In giving directions for the production of documents, the Tribunal was engaged in an exercise of balancing the public nature of its inquiry and the wish of the holders of existing television licences for confidentiality of information.

5. The incumbents i.e. the existing licence holders had chosen to enter the inquiry to protect their own commercial interests and to argue that the effect on their commercial viability of the grant of a third licence should lead the Tribunal to refuse to grant such a licence. Having done so, they placed themselves in the position of possibly having to produce documents which they might prefer not to produce.

6. The financial operations of a commercial television licensee are in a different position, as to protection on a basis of confidentiality, from the financial operations of a business created from private assets and operating in a fully competitive market. The main asset of a commercial television licensee is the licence itself which is granted by the Australian Government. Licencees are accountable for the way in which they conduct their television stations and must therefore accept some diminution in their privacy.

1. The Application for review was based upon s.5(1)(e) and (f) and s.5(2)(a), (b) and (h) of the Administrative Decisions (Judicial Review) Act. Those provisions are as follows:
   
   

"5(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds;

. . . . .

(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;

(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to-

(a) taking an irrelevant consideration into account in the exercise of a power;

(b) failing to take a relevant consideration into account in the exercise of a power;

. . . . .

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

1. It is important to note, particularly in view of some of he matters put to us and to which we will refer, that the appellant did not allege that the directions complained of were an improper exercise of power upon the ground that they constituted an exercise of a power that was so unreasonable that no reasonable person could have so exercised the power: see s.5(2)(g) of the Administrative Decisions (Judicial Review) Act and the cases in relation to that ground referred to in Prasad v Minister for Immigration and Ethnic Affairs (Wilcox J, 26 February 1985, not reported)at pp 23-27. The Court is not, therefore, concerned with the reasonableness - and still less the wisdom - of the directions made by the Tribunal but merely with the question whether those directions or any of them are vitiated by error of law or by any of the manifestations of improper exercise of power which are relied upon.

2. We note also that, notwithstanding the reference in the Application to uncertainty (s.5(2)(h)), the appellant put no argument to us in reliance upon that ground. In the result the submissions put by Swan in support of its appeal fall into three categories: error of law (two matters), taking into account irrelevant considerations (two matters) and failure to take into account a relevant consideration (one matter). We shall deal with each category separately.
   Error of law
   
   

3. The appellant complains that the Tribunal fell into error of law by its application to the making of the subject directions of s.19 of the Broadcasting and Television Act 1942. That section provides:
   
   

"19 (1) Subject to this section, proceedings before the Tribunal at an inquiry shall be held in public.

(2) Where the Tribunal is satisfied that, by reason of the confidential nature of any evidence or matter or for any other reason, it is desirable that the Tribunal should give directions of all or any of the following kinds, namely-

(a) directions that the proceedings, or part of the proceedings, at an inquiry shall be held in private and directions as to the persons who may be present;

(b) directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with, or received in evidence by, the Tribunal; and

(c) directions prohibiting or restricting the disclosure to some or all of the persons having an interest in the proceedings at an inquiry of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with, or received in evidence by, the Tribunal,

the Tribunal shall give such of those directions as it thinks necessary.

(3) In considering whether any directions should be given under sub-section (2), the Tribunal shall take as the basis of its consideration the principle that it is desirable that proceedings before the Tribunal at an inquiry should be held in public and that evidence given before the Tribunal and the contents of documents lodged with, or received in evidence by, the Tribunal should be made available to the public and to all the persons having an interest in the proceedings, but shall pay due regard to any reasons why any such directions should be given."

1. In stating its reasons for the subject directions the Tribunal commented upon the significance of the requirement of subs.(1) that, subject to the section, proceedings at an inquiry shall be held in public and of the principle, enunciated in subs.(3), that in considering whether any directions for confidentiality shall be given under subs.(2), "it is desirable that proceedings ... should be held in public and that evidence given before the Tribunal and the contents of documents lodged with, or received in evidence by, the Tribunal should be made available to the public and to all the persons having an interest in the proceedings". The Tribunal referred to what it called 'the open justice principle.' It described this as being the principle that - except for strictly limited exceptions, such as where there is a fear of justice being unable to be done because of tumult or disorder or where the character of a trade secret will be destroyed by exposure - the proceedings of the courts take place in public. The Tribunal cited Scott v Scott (1913) AC 417 and Russell v Russell (1976) 134 CLR 495 at p 520. The Tribunal commented:
   
   

"The courts do not proceed in public merely for public education, or in the expectation that large numbers of the public will actually abandon their normal committments to sit in the public gallery. Rather, it is the potential and the opportunity for the public to know what is taking place that is seen as the valuable safeguard. The principle was explained as follows by Lord Diplock in Attorney-General v. Leveller Magazine Ltd (1979) AC440 at p450:

'If the way judges behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the principle of public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the Press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.'".

1. The Tribunal went on to say that "a safeguard considered so important for judges and courts is at least as important for an administrative Tribunal such as this". It referred to the decision of Brennan J, sitting in the Administrative Appeals Tribunal, in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 and, in particular, his Honour's comments at p 270 that the principle of public hearings is "of particular importance to a Tribunal which is engaged in reviewing the exercise of administrative power, for administration has hitherto been a cloistered process and its exposure to public scrutiny is calculated to enhance greater public confidence in it." It may be noted that the context of his Honour's remark was s.35(3) of the Administrative Appeals Tribunal Act 1975, a provision framed in terms similar to those of s.19(3) of the Broadcasting and Television Act.

2. The Tribunal went on to refer to the difficulties which it would face in explaining to the public any decision to refuse the grant of a third Perth licence because of the effect of such a grant upon the commercial viability of the two existing television stations, if it made a general direction suppressing the publication of material relating to that issue. It concluded its discussion of the principles embodied in s.19 by saying:
   
   

"Particularly in view of the sections and principles canvassed above, it would not be appropriate to shield documents from public view, or from disclosure to other parties, merely because their holders have a generalised concern or discomfort about the concept of having their documents disclosed, assuming of course that the documents are relevant to the inquiry ...

During the part of this inquiry where production of documents was argued, the Tribunal encouraged parties objecting to disclosure to specify kinds of damage or harm which would be caused by disclosure. The Tribunal recognises that such matters cannot always be indicated with nicety, but did expect some situation or example of possible harm to be indicated. The documents which have received some measure of confidentiality are those in respect of which the Tribunal was able to see a real possibility of appreciable harm at the end of the argument and submissions."

1. The appellant contends - in relation to the category 1, or "unrestricted", documents - that the Tribunal misconceived the principles set out in s.19, that it was not incumbent upon those seeking confidentiality to make out a case for restriction but rather a matter of the Tribunal addressing the question whether the information contained in the documents was relevant to any of the issues raised by the special interest parties. The appellant says that the Tribunal should have held that those parties had no need to obtain that information and should consequently have framed directions restricting the publication of that information to the Tribunal itself and to appropriate representatives of the remaining parties, that is the various applicants and TVW.

2. We agree with the submission that it is not appropriate to approach s.19 on the basis that an onus of proof is cast upon a party seeking directions under subs.(2). As was pointed out by a Full Court of this Court in McDonald v Director General of Social Security (1984) 1 FCR 354 at pp357, 368-369, it will rarely be appropriate to speak in terms of onus of proof in relation to the making by an administrative tribunal of a decision pursuant to a statutory discretion. In the present case s.19(2) provides that the Tribunal shall make directions in relation to confidentiality where it "is satisfied that" it is desirable that it should do so. The Tribunal may reach that state of satisfaction by reason of matters put before it by a person seeking a direction under the subsection. It may reach that state of its own motion and by reason of the content of the relevant material. There is, in the strict sense of the word, no "onus" on any one.

3. However, the Tribunal in the present case did not speak in terms of onus of proof. According to the passage in its reasons which we have set out above, the Tribunal did seek from the parties requesting directions under s.19(2) a specification of the damage or harm which they contended would be occasioned by exposure. That was an obvious and sensible course to take so as to ensure that the Tribunal did not overlook any matter in the mind of the parties. It remained for the Tribunal to evaluate the situation by applying its general knowledge of the industry to the particular circumstances, including any submissions of the parties but including also the nature of, and issues raised by, the inquiry.

4. The submission that the special interest parties had no "need to know" the contents of the category 1 documents comes surprisingly from the appellant. The burden of the case put before the inquiry by Swan was that the effect of the grant of a third commercial licence in Perth would be to reduce the advertising revenues available to each of the existing licencees and to force them to reduce the proportion of their transmission time which is devoted to locally made programmes, news, current affairs and documentaries. They would be forced, according to the Swan case, to rely to a greater extent upon the showing of films, with an increased use of "repeats".

5. Each of the special interest groups was admitted as a party to the inquiry to put a case - although it was described in varying terms in the particular submissions - in favour of the encouragement of the precise types of programmes which, according to Swan, would be placed at risk by a third licence. It might be thought that, upon Swan's own case, the issues of commercial viability and the maintenance or increase of such programmes were directly linked.

6. However this may be, the submission of the appellant suffers from a more fundamental defect: the "need to know" test cannot be reconciled with s.19. That section sets out in subs.(1) a general rule that proceedings at an inquiry shall be held in public. Subsection(3) spells out a "desirable" principle not merely that proceedings shall be "held in public", in the sense that members of the public may enter the hearing room, but that evidence given before the Tribunal - and the contents of documents lodged with, or received in evidence by, the Tribunal - shall be made available to members of the public and to interested persons. Certainly, the rule in subs.(1) and the principle in subs.(3) are each made subject to the duty of the Tribunal to give directions as to confidentiality under subs.(2) where it is satisfied that it is desirable so to do. But the basic principle is that any party, and any member of the public, is entitled to hear the evidence and to read the documents; and whether or not any "need to know" is established.

7. We see no error of law in the Tribunal's understanding, and application, of the terms of s.19.

8. The second matter in relation to which Swan claims that the Tribunal fell into legal error is in respect of ss.106,106A and 106B of the Act. Section 106 requires a licensee, in respect of each commercial broadcasting station or commercial television station of which he is a licensee, to compile and maintain certain financial accounts, to keep certain records and to make available to the Tribunal information in relation to these accounts and records. Section 106A requires the Tribunal to assemble information supplied under s.106, together with information supplied on particular request (s.106A(2)) and information otherwise acquired by the Tribunal in the performance of its functions. Subsections (3), (4) and (5) of the section provide:
   
   

"(3) Subject to sub-sections (4) and (5), or section 106B, information assembled under this section-

(a) shall be made available to the Minister upon request; and

(b) shall be made available (whether gratis or otherwise, as the Tribunal thinks fit) to any other person upon request.

(4) In complying with sub-section (3), the Tribunal shall have regard to any directions given under section 19 in relation to the information concerned.

(5) Information assembled under this section (other than information to which sub-section

(4) applies) shall not be made available under sub-section (3) in such manner, or in such circumstances, as, in the opinion of the Tribunal, would be prejudicial to the interests of any person."

1. Section 106B makes it an offence for any member, or member of the staff, of the Tribunal - except for the purposes of the Act - to make a record of, or to divulge, any information acquired by him by reason of his office or appointment under the Act or in the performance of his duties, or the exercise of his powers or functions, under or in connection with the Act.

2. On behalf of the appellant it is submitted that s.106A(5) recognises the principle that information assembled under that section should not be made available in unrestricted fashion in any case in which disclosure would be prejudicial to the interests of any person. This principle, which is said to be reinforced by s.106B, means that commercially sensitive information, the publication of which may be prejudicial to the interests of the appellant, should not be released except to the extent necessary for the proper functioning of the inquiry. In support of this submission the appellant refers to a recent decision of the Administrative Appeals Tribunal, Actors' Equity Association of Australia v Australian Broadcasting Tribunal (Mr R.K. Todd, Deputy President, Mr G.D. Grant and Dr A.P. Renouf, 29 March 1985, not reported). In that case the Administrative Appeals Tribunal upheld a decision of the Australian Broadcasting Tribunal refusing access under the Freedom of Information Act 1982 to documents furnished by commercial television licensees under s.106 and known as A.B.T. - 12s. Access was refused pursuant to s.43(1)(c) of the Freedom of Information Act, which provision exempts from disclosure a document which would disclose information concerning the business affairs of a person the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in his business affairs.

3. The submission based on ss.106, 106A and 106B is, in essence, a repetition in that context of the "need to know" approach. Section 106B does not bear upon the matter at all; it is directed to an unauthorised communication of information by an individual. Neither do we discern in s.106A any general principle that information assembled under that section shall be kept confidential. On the contrary, it would appear that Parliament intended that the assembled information should be available to members of the public on request (subs.(3)) subject only to any relevant s.19 direction (subs.(4)) or to a decision in the particular case by the Tribunal that the communication of that information would be prejudicial to the interests of any person (subs.(5)). We note that in the Actors' Equity case the Administrative Appeals Tribunal spoke of s.106A(3) creating a "presumption" - by which we understand basic principle - that information assembled under s.106A "shall be made available on request".

4. We do not think that the terms of ss.106, 106B and 106B affect the present question. Those provisions are directed to a different function of the Tribunal. It is not difficult to understand a principle, in relation to the Tribunal's "information gathering" function, that information which is prejudicial to any individual ought not to be released. There is not in that case the same balancing process as needs to be undertaken in relation to s.19, where the public interest in "open justice" has to be weighed against the public interest in maintaining an appropriate level of confidentiality for private commercial information. The competing principles in relation to the Tribunal's "inquiry function" are contained in s.19, and in s.19 alone.
   Irrelevant Considerations
   
   

5. Section 83(6) of the Broadcasting and Television Act provides that the Tribunal shall not refuse to grant a licence to an applicant except for a reason specified in that sub-section. A specified reason is that it appears to the Tribunal that it is advisable in the public interest to refuse a grant because of the need for the commercial viability of the existing station or stations in the area to be served (para (c)(iii)). Swan opposes the grant of a third television licence for the Perth metropolitan area in the interests of its own commercial viability. The material submitted by Swan, which is the subject of the directions challenged in these proceedings was provided in support of that case.

6. In the statement of reasons for its directions in relation to disclosure of this information the Tribunal said:
   
   

"There are two other factors which must be taken into account when the private financial and program documents of the incumbents are considered. The first factor is that the incumbents voluntarily and of their own motion exercised a right to enter this inquiry to contend against the grant of a licence to a competitor, on financial and other grounds. They chose to dispute commercial viability questions, out of an obviously legitimate and lawful concern to preserve their own position. But having come into the inquiry in that manner, they cannot then reasonably insist on protecting basic evidence in their 'commercial viability' case from the other parties in the inquiry or from the public. Any reader of the Act can see that the inquiry is predominantly a public inquiry, and it soon became clear to the incumbents that other parties would not make ... concessions enabling limited disclosure .... The second factor is that in respect of their financial records the incumbents are not comparable to the inventors or purchasers of trade secrets, who have long been protected by the courts from the destruction or diminution in value which will attend public disclosure of the secret through public hearing. The main interests for which protection is sought are the television licences themselves. The almost inevitable fruits of those licences are considerable revenues. The licences were not created by the licensees, but by a grant made gratis on behalf of the Commonwealth. The two incumbents are, until another licence is granted, protected from competition in deriving the fruits of their licences by the legislative scheme of the Broadcasting and Television Act. Whilst arguments against grant of a third licence are likely to be diverse, a major result of the decision following this inquiry will be to expose the two existing licensees to competition, or not. Financial operations under the licence are not entitled to such high protection from scrutiny as financial operations of a business created from private assets and opportunities in a market fully open to competition".

1. The appellant contends that neither of the factors mentioned by the Tribunal in the above passage was a relevant matter for its consideration, so that the taking into account of those matters - or either of them - vitiated the exercise of its discretion under s.19(2). In relation to the first matter, the appellant says that it is irrelevant that it chose voluntarily to enter the inquiry, that it was entitled to take that course and that the exercise by it of that entitlement does not affect the question of confidentiality. In respect of the second matter, the appellant refers to s.106A in support of its submissions that the Act itself recognises that a licensee is entitled to maintain a claim for the confidentiality of information relating to the operation of its licence and says that the distinction made by the Tribunal between the case of financial operations under the licence and the financial operations of a business created from private assests and opportunities in a competitive market is not justified.

2. We reject the view that the matters referred to by the Tribunal were irrelevant to the application of s.19(2). Each of them constituted part of the factual background against which that decision had to be made. It is, of course, correct to say that Swan was entitled to protect its interest by seeking approval of the Tribunal to participate in the inquiry and, if approval were granted, to put such case as it saw fit in opposition to the grant of a licence to any applicant, being a case related to an available ground of refusal. It would have been wholly wrong for the Tribunal to penalise Swan in any way for exercising those rights. But we do not read the passage referred to as indicating that the Tribunal sought to do so. We think the Tribunal was doing no more than saying that Swan and TVW had chosen to participate in the inquiry for the purpose of raising an issue as to their continued commercial viability, if a third licence were granted, and that the question of appropriate directions under s.19(2) had to be considered against the background that this was a major issue which had been raised for determination. Even so, the Tribunal appreciated that the existence of that issue did not relieve it from the obligation of moulding directions which would strike a proper balance between the appellant's claim for confidentiality and the need properly to resolve that issue. It did, in fact, give directions to limit the disclosure of information about the appellant's current financial affairs and programme arrangements. The nature of the issues to be determined is one of the matters relevant to the question of what directions ought to be made under s.19(2) in the particular case. In the passage under challenge the Tribunal was saying no more than this.

3. In dealing with the second factor referred to by the Tribunal, Forster J. commented that licensees under the Act are "in a non technical sense trustees of a licence and are accountable for the way in which they conduct their television stations. Because of this special position occupied by them, licensees, when they embark upon the issue of their own and the applicants' commercial viability, must in my view accept some diminution in their privacy".

4. Although his Honour did not refer to the case in this context, he may have had in mind the well-known reference to public interest by a Full Bench of the High Court of Australia in The Queen v The Australian Broadcasting Tribunal; Ex parte 2HD Pty. Ltd. (1979) 144 CLR 45 at p 53:
   
   

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

1. The fact that commercial broadcasting and television are intended to be conducted in the interests of the public does not mean that there is no room properly to maintain a claim for the confidentiality of commercial information. Unregulated disclosure of such information may result in serious consequences to a licensee and, therefore possibly, to the public interest. But the facts that there is in the control of television a direct public interest element, different in kind from the public interest in the maintenance of other businesses, and that the source of the income of a licensee is a licence granted to it by the Australian Government and in the public interest serve to distinguish the claim for confidentiality by a television licensee from that which might be made by a person engaged in some other type of business. The public interest element in relation to television regulation may require a greater degree of disclosure of commercial information than would otherwise be appropriate. Like Forster J., we do not think that the special position of licensees was a matter irrelevant to the Tribunal's consideration.
   Relevant Considerations
   
   

2. Finally, Swan submits that the Tribunal erred in failing to consider as a relevant matter the fact that each of the three applicants for a licence was a potential competitor of the company and that, in that capacity, it stood to obtain a substantial benefit, to the detriment of Swan, by access to the information in the documents.

3. Little need be said about this submission. The Tribunal was plainly alive to the problem referred to. Although it directed that the representatives of the three applicants give appropriate undertakings as to the use by them of information made available for the purpose of the inquiry, the Tribunal referred in its reasons to the impossibility of people who would be involved in the direction of a new station ridding their minds of that information. The Tribunal referred on three separate occasions, during the course of its reasons, to the difficulty created by that circumstance. It enunciated the principle which it had decided to adopt, namely that directors of present competitor companies "should not be placed in a position of being required to exclude by mental compartmentalisation internal financial information about competitors". It applied that principle so as to exclude Mr Coote, a nominee of Perth who was a director of TEN-10 Sydney, from Schedule 3. It excluded Messrs Stokes and Treasure, who were directors of a Perth radio licensee, from Schedule 3 in respect of information about radio stations 6IX and 6KY, but not in respect of television information. The Tribunal commented:
   
   

"It is not an objection to Messrs Stokes and Treasure that they are directors of an applicant company, since by the time any successful applicant has entered the Perth market, the information obtained under these directions will have become sufficiently 'stale' to mitigate 'compartmentalisation' problems. The Tribunal has included Mr Stokes in Schedule 3 despite his substantial interests in the licensee CTC-7

(Canberra). The Canberra station is not in direct competition with any of the companies whose material is to be disclosed. Nor are the stations with which Mr Moremon, another person listed in Schedule 3, is associated."

1. Swan does not accept the soundness of the Tribunal's judgment in relation to the question whether the information would be sufficiently "stale" to make acceptable the balance struck by the Tribunal. However, in the absence of an attack upon the decision upon the basis that it was so unreasonable that no reasonable person could have so exercised the power, the question of reasonableness is not a matter for this Court. The disadvantage to Swan of the disclosure to potential competitors of information about its financial affairs and programmes was clearly a relevant matter for consideration. The Tribunal recognised that fact and it gave detailed directions accordingly.

2. In our view none of the grounds of attack upon the legal validity of the Tribunal's directions has substance. The appeal should be dismissed with costs.