TCN Channel Nine P/L v Australian Broadcasting Tribunal Amalgamated Television Services P/L v Australian Broadcasting Tribunal

No judgment structure available for this case.

Re: TCN CHANNEL NINE PTY LIMITED, AMALGAMATED TELEVISION SERVICES PTY LIMITED,
HSV CHANNEL 7 PTY LIMITED, BRISBANE TV LIMITED, SOUTH AUSTRALIAN TELECASTERS
LIMITED, and TVW ENTERPRISES LIMITED
And: AUSTRALIAN BROADCASTING TRIBUNAL and COMMUNICATIONS LAW CENTRE
Nos. N G145 and 154 of 1992
FED No. 730
Administrative Law - Broadcasting
(1992) 28 ALD 829 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Administrative Law - judicial review - relevant factors - rationality - relevant and irrelevant factors - reasonableness - adequacy of reasons - uncertainty - compliance with statutory duty - broadcasting and television - program standards inquiry.

Broadcasting - Australian Broadcasting Tribunal - review of program standard - limiting amount of non-program matter permitted to be broadcast - inquiry into exercise of power - whether natural justice observed - reasons for decision - whether sufficient - lack of rationality - relevant and irrelevant factors - reasonableness - uncertainty - compliance with statutory duties - financial impact on licensees of proposed Standard.

Broadcasting Act 1942 s.16, 17C, 25

Acts Interpretation Act 1901

Australian Broadcasting Tribunal (Inquiries) Regulations reg.6

Reg v. Baldwin (1963) 1 QB 539

Furnell v. Whangarei High Schools Board (1973) AC 600

Russell v. Duke of Norfolk (1949) 1 All ER 109

University of Ceylon v. Fernando (1960) 1 WLR 223

Mobil Oil Australia Pty Ltd v. The Commissioner of Taxation (1963) 113 CLR 475

R v. The Commonwealth Conciliation and Arbitration Commission; Ex parte

The Anglis Group (1969) 122 CLR 546

National Companies and Securities Commission v. News Corporation Ltd (1984) 156 CLR 296

Salemi v. MacKellar (No. 2) (1977) 137 CLR 396

R. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 ClR 45

Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321

Minister for Aboriginal Affairs v. Peko Wallsend Ltd (1986) 162 CLR 24

Othman v. Minister for Immigration and Ethnic Affairs (1991) 24 ALD 707

HEARING

PERTH

#DATE 30:9:1992

Counsel and Solicitors for the Applicant in NG 145 of 1992:
Mr J. Campbell QC and Mr A. Robertson instructed by Blake Dawson Waldron

Counsel and Solicitors for the Applicants in NG 154 of 1992:
Mr M. Slattery and Mr Colman instructed by Freehill Hollingdale and Page

Counsel and Solicitors for the First Respondent in both proceedings:
Mr P. Roberts and Mr M. Mineham instructed by the Australian Government Solicitor

Counsel and Solicitors for the Second Respondent in both proceedings:
Mr D. Catterns instructed by Ms M. McAuslan

ORDER

The Court orders that:

1. The applications are dismissed.

2. The applicants pay the first respondent's costs of the applications unless within seven days submissions are filed in support of a different order.
Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

Introduction

On 25 February 1992, the Australian Broadcasting Tribunal, in the exercise of its powers under s.16 of the Broadcasting Act 1942, published Television Program Standard 25 - Advertising and Promotion Time. The promulgation of the Standard ended a period of deregulation of advertising and promotional scheduling in commercial television in Australia which had been in effect since 23 September 1987. Under the Standard, television licensees are limited in the amount of broadcast time per hour that can be used for the transmission of non-program material by way of advertising and station or program promotions. The limits imposed by the Standard have been phased in with a six month transition period from 1 March 1992 to 1 September 1992 when more stringent restrictions commenced to operate.

The Seven and Nine television networks have brought these proceedings seeking judicial review of the Tribunal's decision. They allege that the Tribunal's published reasons are inadequate and incomplete and that these deficiencies constituted a breach of its statutory duty to give reasons for its decision. This ground relates particularly to the Tribunal's consideration of the financial impact of the Standard on commercial television licensees. They also contend that there are elements of irrationality and unreasonableness in the decision. They say that the Tribunal has failed to observe procedural fairness as required by the rules of natural justice. In this regard the Nine Network says that the Tribunal promulgated its decision before the Network had answered certain queries put to it by the Tribunal. The introduction of the transitional period is said to have been without prior discussion with affected parties. The Tribunal is also said to have relied upon documents which the licensees did not see.
It is further contended that the promulgation of the Standard constitutes an exercise of a power in such a way that the result of the exercise of the power is uncertain. This is said to follow from alleged anomalies in the application of the Standard in particular cases. Various factual findings of the Tribunal are attacked upon the basis that they reflect or constitute a failure to take into account relevant considerations or the taking into account of irrelevant considerations. Before turning to the various grounds of review, it is desirable to review the considerable history leading up to the promulgation of the Standard.
The De-regulation of Advertising - September 1987
Prior to 1987, statutory standards promulgated by the Autralian Broadcasting Tribunal and its predecessor, the Australian Broadcasting Control Board, limited the amount of time for which commercial television licensees could broadcast advertisements. An examination of those standards was begun by the Tribunal in 1981, but not completed. On 2 January 1986, the Tribunal announced that it proposed to review the then existing rules with respect to the length, number and placement of advertisements and other non-program material shown on commercial television. Following an application by the Federation of Australian Commercial Television Stations (FACTS) in August 1986 for the repeal of two of the standards the Tribunal decided to proceed with an inquiry into all of the rules relating to placement of advertisements. The result of that inquiry was published on 23 September 1987 in a report entitled "Advertising Time on Television". With effect from that date, the Tribunal repealed, inter alia, Television Advertising Conditions 10, 11, 13 and 14 relating to advertising time, standards and limits, placement of advertisements and non-program matter and Television Advertising Condition 16 relating to programs in the form of shopping guides, market information and like material.
The system of "deregulation" ushered in by the repeal of these standards was intended by the Tribunal to continue for a trial period of two years. Its report set out, at para.2.102, criteria by which the success or failure of the trial could be assessed. These were expressed as indicia of failure:

1. An overall increase in the number or rate of interruption of programs.

2. An increase in the amount of interruption to drama and similar programs beyond three in the half hour and five in the hour.

3. A lack of experiment with fewer breaks in programs.

4. Interruption of feature films more than the current rules allow (one every 15 minutes).

5. A lack of increased surveys to cover "non-rating" periods and to cover audience satisfaction with programs and advertisements.

6. Persistence with different advertising practices despite audience objection.

7. Application of a set of standard rules to replace those of the Tribunal.

8. A decrease in the number of community service announcements broadcast free of charge.

Arrangements for measuring the incidence of the indicia of failure in the trial period were also set out. They included a system of random monitoring of program logs compiled by licensees, off-air spot checks to verify printed logs and six monthly publication of "a representative picture of current advertising practices" leading up to a review at the end of the trial period. The Tribunal stated in the report that it intended to allocate resources to conduct a major research exercise for the end of the two year trial period. The objectives of the projected research were described at para.2.107:

"1. To make comparisons of the advertisement/program mix offered to audiences in 1987 and 1989;

2. To conclude whether changes have occurred which are in the public interest and to evaluate whether the advertisement/program mix offered by licensees is based on a broader and more detailed understanding of the audience needs;

3. To again survey viewer attitudes to the advertisement/program mix in the light of modified advertising products."

The normal licensing processes of the Tribunal and handling of viewer complaints during the trial period would be taken into account.

The report foreshadowed the nature of the review of the trial. It was to involve the publication of a Notice of Inquiry in September 1989 to allow time for any revised advertising practices to be introduced to take effect in 1990. As the Tribunal described it the proposed review could be limited to the question whether rules should be introduced to govern interruption of programs and could concentrate on deciding:

1. Whether the criteria of success or failure had become manifest.

2. Whether the proposed interruptions rule or some variant of it should be introduced.

At para.2.112 of the report the Tribunal said:

"Whilst the Tribunal is limited by regulations which govern the way it conducts inquiries, the proposed inquiry in two years time need not be long or complex. Basic viewer preferences and the basic issues summarised here would be unlikely to change radically within two years. Preparation for that inquiry by licensees and others will be aided by the two years notice of the likely issues, the criteria of success or failure set out here and the draft of the interruptions rule. For example, if there are to be arguments about the exact wording of the proposed interruptions rule, then they can be presented in succinct written form to the next inquiry. Two years is enough drafting time for even the most contemplative lawyer."

A draft interruptions rule relating to the number of permitted non-program interruptions according to the duration of each program was set out at para.2.117 of the Report. Its precise text is not material for present purposes.

It is to be noted that in discussing the question of viewer tolerance of advertising time on television, the Tribunal commented at para.4.18 of the 1987 Report that:

"There seemed to be general agreement that the limit of approximately thirteen minutes per hour was about the level of viewers' tolerance; and that this would not significantly change if the rules were removed."

Findings from a survey conducted by Reark Research Pty Ltd were referred to as indicating that the current amount of advertising was at the upper level of viewer tolerance. The concept of "level of viewer tolerance" was not elaborated. A summary of the results of the survey said to support the view that the then current amount of advertising was at the "upper level" comprised Appendix D to the report. It indicated that 32% of respondents to a survey of 1,182 people were "bothered...a lot" by the amount of advertising on television. Thirty seven per cent were only bothered by it in some programs, 13% were bothered by things about advertising other than the amount of it and 18% were not bothered at all. Viewer tolerance as that term was used by the Tribunal seemed to reflect a somewhat subjective concept of levels of irritation expressed by viewers. During the ensuing trial period the Tribunal commissioned Reark Research Pty Ltd to conduct a study with the specific objectives of determining current community attitudes to television advertising and in relation to the perceived amount of it, audience preferences in relation to advertisement/program mix and related perceptions and behaviour in relation to advertising content including the extent of video recording. The primary objective of the study was to provide the Tribunal with data to aid in the evaluation of the success or otherwise of the deregulation of advertising time.

Research was also conducted on behalf of the three major networks by Kenning Australia Pty Ltd during this period. A "benchmark survey" to measure viewer perceptions of and attitudes to commercial content on Sydney stations was carried out between 15 and 21 November 1987. A similar survey was conducted in Adelaide between 11 and 17 April 1988. A further survey was undertaken in Sydney between 11 and 13 October 1988 in relation to Channel TCN9, in relation to all three networks between 13 and 19 November 1988. Attitudes to format changes in the scheduling of commercial content on the Seven Network were surveyed in Sydney for the week 5 to 11 March 1989 with a followup in the period 2 to 8 April 1989.
Notification of Inquiry - October 1989
On 7 June 1989, the Tribunal sent a letter to the FACTS advising of its intention to hold a preliminary conference to allow interested parties to discuss its approach to a proposed inquiry in which it would review the two year trial deregulation. A draft background paper was attached outlining factors that would be taken into consideration together with draft issues for the review. The background paper described the nature of research work being commissioned or carried out by the Tribunal. Similar letters were sent to other interested parties. The draft issues for the review were described as:

1. Whether the trial could be regarded as having failed.

2. If so, what measures, if any, should be introduced and in what form and manner.

3. Such other matters as might be relevant in the inquiry to those issues.

The Tribunal noted that viewer perception of the advertisement/program mix was to be surveyed by Reark Research Pty Ltd and the results compared to the 1987 survey to determine whether changes in attitude had occurred. Data had also been purchased from an organisation called Tart Research which the Tribunal was analysing to ascertain the rate and amounts of commercial interruption within particular types of programs and across broad time bands. Licence renewal processes and the handling of viewer complaints were to be taken into account in the monitoring of licensee's performances. A proposed timetable was included with the draft background paper which contemplated the inquiry opening on 25 September 1989, the release of first and second information papers in October and November 1989, the closing of submissions in early February 1990, a conference in Sydney in early April 1990 and a preliminary decision in early May 1990.

In or about July 1989 the Tribunal released a working paper entitled "Advertising Time on Television Sydney/Melbourne Renewals". In August 1989, Reark Research Pty Ltd published its research report prepared for the Tribunal in relation to the proposed review in which it concluded, inter alia, that viewing patterns were generally in line with those noted in 1987 with the exception that there was heavier weekend than weekday viewing. According to the report there appeared to be an increase in the level of rejection of television advertising with nearly half of the sample saying that "it bothered them a bit/a lot".
On 11 October 1989 the Tribunal formally resolved to initiate its inquiry into advertising time on television. On 16 October 1989, its then Chairman constituted a division comprising two of its members, Mr Wilson and Ms Brooks "for the purposes of conducting an inquiry into the review of advertising time on television over the last two years". Interested parties were notified by letter dated 3 November 1989. A notice of the inquiry was published in the Commonwealth Gazette on 8 November 1989 and was in the following terms:

"Notice of Inquiry

The Australian Broadcasting Tribunal has commenced an inquiry into the review of advertising time on television.

The inquiry will assess the success or failure of the two-year trial period which commenced in September 1987.

In the decision to deregulate advertising time, specific criteria were formulated against which the assessment would be made. The issues in the inquiry will be:

1. Whether the trial can be regarded as having failed because of any of the specified criteria were manifest over the trial period; (sic)

2. If so, what measures, if any, should be introduced and in what form and manner;

3. Such other matters as may be relevant in the inquiry to these issues."

Submissions were invited from the public, television licensees, advertisers, advertising agencies and other interested parties.

The First Information Paper - November 1989

On 20 November 1989 the Tribunal released the first of two information papers entitled "Review of Advertising Time on Television First Information Paper". The paper outlined the results of research conducted by Reark Research Pty Ltd and the processing of data purchased from Tart Research. The Tart Research data , it was said, suggested that overall there had been no increase in the rate of interruption to programs and at certain times of the day the rate had decreased on some networks. However it appeared that one of the consequences of the trial had been an increase in the volume of advertising broadcast both in terms of duration of program interruptions and in the numbers of commercials and other non-program events. This had been most evident in feature films and childrens programs. The increase in the number of advertisements broadcast was partly related to an increase in the number of shorter length commercials being scheduled. There had been a shift away from advertising between programs and a trend towards increased advertising within programs. Time limits set by the previous Television Advertising Conditions did not seem to have been exceeded over the course of the trial period. The main findings of Reark Research Pty Ltd, summarised in the paper, included the conclusion that "viewer tolerance" of advertising appeared to have decreased in the two years since the trial began and that viewers considered repetition of commercials, frequency of interruption to programs and a perceived high number of items within interruptions as annoying aspects of advertising on television. These results implied, it was said, an increased perception of "clutter" in program interruptions. The majority of those surveyed believed there had been an increase in the number of advertisements and the number of program interruptions. The information paper also summarised the benchmark and followup surveys conducted by Kenning Australia Pty Ltd for the combined national networks. It was said to be a finding of the various surveys that viewers were less tolerant of commercial content in the programs they watched but did not especially enjoy.
The Tribunal also referred in the First Information Paper to guidelines developed by individual licensees and networks for commercial content placement during the trial period. Licensees were asked to include these details in their licence renewal submissions. Responses to a series of questions on licensee practices were received from some twenty stations and a summary of these responses set out in the paper. It emerged from the renewal submissions that changes in station practices had been "relatively minor" (First Information Paper para.4.7). The general limits set by previous Television Advertising Conditions had been maintained without the restrictions imposed by a rigid clock hour concept. It was also noted that:

1. Commercial duration was still measured on an hourly basis.

2. The division of the viewing day maintained the distinction between "Prime Time" (7-10 pm) and "Other Times".

3. Although not stated, the previously existing definition of "non-program matter" seemed to be still followed.

4. The recommended durations of (i) advertising and (ii) non-program content generally, were virtually identical to those previously allowed.

The Second Information Paper - December 1989

A paper entitled "Review of Advertising Time on Television Second Information Paper" was circulated by the Tribunal in December 1989. Its stated purpose was to update the analyses of data relating to station practices from Sydney and Melbourne stations which had been discussed in the First Information Paper and to complement them with analyses of data for the Adelaide, Brisbane and Newcastle markets. The paper also contained a statistical analysis of viewer complaints and comments received by the Tribunal from October 1987 to September 1989. It foreshadowed an examination of their substance and the licensees' responses to them. The analysis of the Tart Research data was represented in graph form relating to transmissions in Sydney, Melbourne, Adelaide, Brisbane and Newcastle for selected weeks from December 1986 to September 1989. It was noted that the average length of program content in one hour broadcasts had decreased by 54 seconds over the trial period. An increased amount of non-program content was said to have been scheduled within programs rather than in station breaks between programs. During the trial period 382 complaints were received by the Tribunal about perceived excessive amounts of advertising on television and the placement of that advertising. Overall it appeared that the rate of complaint had decreased over the trial period. 237 of the complaints were received in the first year and 145 in the second. The Tribunal commented that over the five financial years ending 30 June 1989 "the level of complaint about television advertising has followed a downward trend". The proportion of complaints received about the amount of advertising was low in 1988/89 in relation to television advertising than was the case in 1984/85. The most common sources of irritation to viewers over the trial period were said to be interruption of sports telecasts by advertisements and the amount of advertising contained in drama programs such as films and mini-series.
Early Submissions to the Tribunal
In answer to the invitation contained in its notice of inquiry published on 8 November 1989, the Tribunal received a number of submissions from organisations and members of the public. A variety of views was represented in those submissions. The Presbyterian Womens' Association in New South Wales considered self-regulation to be ineffective. Advertising was excessive and tended to be more emotive and suggestive than informative. A survey of media education students at the Catholic College of Education indicated a perception of overall increase in the number and rate of interruptions to programs. Some regulation with regard to advertising time on television was recommended. The Advertising Federation of Australia considered it "evident that the removal of restrictions on non-program material has lessened neither the appeal of commercial television for viewers nor its value to the advertisers who support it". The Tribunal was "entitled to declare the trial a success and to confirm deregulation as a permanent condition". Independent communication consultant, Richard J. Rowe and Associates Pty Ltd, told the Tribunal that "little purpose would be served in returning to the more regulatory environment which applied prior to the trial". In a submission forwarded in March 1990, FACTS contended that the evidence of the trial period demonstrated the success of minimal regulation. It commented on and criticised the Tribunal's conclusions in the First Information Paper based upon Reark Research Pty Ltd's survey. A lengthy submission was also received from the Australian Consumers Association which concluded that:

"The commercial networks have not achieved a satisfactory mix of advertisements and programs during the deregulation trial. There is a wide gulf between what is deemed satisfactory to industry and what is satisfactory to the viewer."

A large number of written comments received from readers of the Australian Consumers Association magazine "Choice" was sent to the Tribunal. Opposition to the imposition of a regulated regime was expressed by the Office of Regulation Review of the Industry Commission.

Letter to FACTS - 14 May 1990

On 14 May 1990, the Tribunal wrote to FACTS and other organisations seeking information. FACTS was asked to advise:

1. Whether there were any specific instances of experimentation particularly from the end of the trial up to that date that FACTS would wish to draw to the attention of the Tribunal.

2. Whether the information provided throughout the inquiry from the Tribunal's surveys and from FACTS own research into audience attitudes had any impact on its guidelines for commercial content placement.

3. With reference to the term "comfort levels" used in the FACTS' submission to describe station guidelines outlined in licence renewal submissions, whether this term described viewer tolerance of the amount and placement of commercial content and, if so, how such levels were developed and established.

4. Whether station guidelines had been reviewed and updated at all since the licence renewal documents were submitted to the Tribunal.

Third Information Paper - May 1990

A document entitled "Review of Advertising Time on Television Third Information Paper" was circulated by the Tribunal on 18 May 1990. It was intended to provide further analyses based on data purchased from Tart Research Pty Ltd. This was undertaken as the result of comments made by submitters and "matters developed by the Tribunal in the course of the Inquiry". Persons making submissions were given the opportunity to comment on the paper by 7 June 1990. The paper indicated an increase in the mean rate of interruptions for prime time dramas, mini series and films over a period of 68 weeks from December 1986 to September 1989. However, the mean length of program segments for some program types had increased. The overall amount of interruption was shown graphically by the average number of minutes of interruptions for each hour of the day. One graph (Graph N) showed an increase since deregulation in the amount of interruption during parts of the day from 6 am to 3 pm and the former C time period (a reference to childrens program time between 4 pm and 5 pm Monday to Friday). A slight increase appeared in late prime time. A summary of submissions received by the Tribunal was also enclosed.
Network Responses to the letter to FACTS - June 1990
On 20 June 1990, TCN Channel Nine Pty Ltd responded to the questions put to FACTS in the Tribunal's letter of 14 May 1990 advising that an extra zone on air time allocation totalling 21 minutes per week commenced in September 1988 and that an experiment had been conducted in 1989 when only four commercial breaks were placed within the program China Beach. In the current season Nine had returned to the five break system. The surveys had impacted upon its guidelines in that they had confirmed "Nine's sagacity and perspicacity". The meaning of "comfort levels" was a matter to be addressed to FACTS which had devised the phrase. Station guidelines had been reviewed and updated "only at the margin" as they had been working satisfactorily. Network Ten Australia Ltd responded on 29 June and the Seven Network on 27 July 1990. Network Ten cited instances of what it described as "reduced commercial content" and "innovative commercial placement" since September 1989. Experience, audience reaction, research and the competitive environment had not led to any conclusion that its guidelines on advertising placement needed any substantial amendment. The Seven Network claimed that since early 1989 it had reduced the number of breaks in some one hour programs, particularly dramas, from five to four and in certain half hour programs from three to two. Breaks had been increased from five to six in the evening program "Tonight Live with Steve Vizard". The network claimed that in the absence of direct regulation it had been able to reduce significantly the number of breaks during certain drama programs and the total number of breaks in the four hour period from 7.30 pm to 11.30pm. The Tribunal surveys and the network's own research had had some impact on its guidelines for commercial content placement. These guidelines had been reviewed and refined eight times since August 1988.
The Preliminary View - August 1990
In August 1990, the Tribunal released a document entitled "Review of Advertising Time on Television Preliminary View". The document expressed what the Tribunal described as a preliminary view on the three issues before the inquiry. The first of these was that the trial period had not failed in terms of the criteria of failure defined in 1987. Nevertheless, it was said to be arguable that the "intention of the criteria as expressed in the 1987 Report had not been fulfilled". There had been a demonstrated increase in the average length of interruptions and the number of interruptions in feature films. It could be inferred that the length of interruptions in other program categories had also increased. The Tribunal noted that at the beginning of the trial period station guidelines allowed for 11 minutes advertising plus 2 minutes promotion per hour in prime time which was defined as 7 pm to 10pm. For other times a maximum of 13 minutes per hour was allowed with an average limit on promotion of 2 minutes per hour. By year two of the trial, the average amount per hour of non-program content had increased over the majority of time bands. Of particular interest to the Tribunal was the concentration of non-program material in the 5 pm to 6 pm band which appeared to have exceeded 15 minutes per hour before deregulation. The submissions of the Australian Consumers Association and others that increases in the amount of advertising were not acceptable were noted in this paper. So too, were those of FACTS that viewers accept the trade-off of longer breaks containing more advertisements if that means fewer interruptions. The Tribunal expressed the opinion that the trend towards an increased placement of non-program material within programs warranted closer examination and sought assurances that the level of advertisements in the feature would not exceed that currently being experienced. It then invited responses to the following queries:

1. What factors influenced the decision to adopt the limit of 13 minutes per hour advertising content.

2. Was this considered to be the actual saturation point for viewers.

3. Was it considered inevitable that, gradually over time, an increased amount of advertising content would be scheduled to raise the level of viewer tolerance or was it intended to maintain the current level.

4. If 13 minutes advertising per hour had in fact been established as the maximum amount tolerable to viewers, what impact could be experienced from the imposition of a "safety net" on the amount of non-program material permissible on television.

Responses to the Preliminary View

Various replies were received. These included submissions from the Communications Law Centre on 25 September 1990 and from FACTS on 2 October 1990. The Communications Law Centre concluded that "specifically targeted advertising time standards" were necessary to ensure that licensees had a clear understanding of the boundaries between acceptable and unacceptable practices in the placement of advertising and non-program material in programs. Clearly, it was said, licensees had generally not succeeded in identifying this boundary for themselves in certain program types despite the flexibility which the trial period gave them to experiment with the mix of programs and advertisements. FACTS acknowledged that there had been an increase in the amount of non-program content during some programs and some time bands. That increase represented a necessary trade-off for:

1. A reduction in non-program content during other programs.

2. A reduction in the number of breaks during some programs.

3. The sustained funding of high levels of Australian production over a period of declining revenue growth.

FACTS submitted that the declining level of viewer complaints about advertising on commercial television suggested that any increase in non-program content had been achieved in a way acceptable to most viewers and without sacrificing high standards of presentation. It argued that any arbitrary cap on the amount of non-program material on television would inhibit the capacity of the market place to ensure that an appropriate balance was achieved. It would also severely inhibit the capacity of licensees to continue to experiment with different commercial content guides and break structures.

The Guided Self-Regulation Proposal - December 1990

On 17 December 1990, the Tribunal circulated a document entitled "Review of Advertising Time on Television Proposal". The Proposal as summarised in the document was as follows:

1. That licensees continue to follow their individual guidelines as regards rate of interruption to programs and the placement of those interruptions within programs.

2. In respect of the amount of non-program content per hour and the number of items per program interruption and station break, licensees adopt certain maximum levels.

3. Licensees adopt guidelines which would strongly reflect current station policy. These would set industry wide maximum levels of:

(i) The amount of advertisement and program promotion per hour. The recommended maxima were 13 minutes per hour during prime time (7 pm-10 pm) and 15 minutes per hour at other times.

(ii) The number of advertisements and program promotions per program interruption and station breaks. The recommended maximum was 8 items per program interruption and station break.

The Tribunal would continue to monitor the licensees performance against these guidelines with discussion of relevant trends to be undertaken at periodic public conferences.

The Conference - 20 February 1991

A conference was scheduled for 20 February 1991 to allow discussion of the station's response to the Tribunal's proposal. The body of the proposal paper referred to various submissions which had been received by the Tribunal in answer to its preliminary view paper. At p 5 the Tribunal said:

"The Tribunal has no intention, at this stage, of introducing Program Standards limiting the placement of advertising and other non-program content on commercial television and the frequency of those breaks. However the Tribunal is of the view that some limit or "holding pattern" on the amount of non-program content on television is necessary. The Tribunal considers that the levels set in the networks own commercial placement guidelines and demonstrated as current station practice are acceptable and should be maintained".

At p 6 it was said:

"The Tribunal wishes to emphasise that, should agreement on these recommended maximum levels not be reached between the licensees within the agreed timetable, consideration would be given to the drafting of Television Program Standards to meet this objective. "

Details of the conference were sent to FACTS and other interested parties by a letter from the Tribunal dated 5 February 1991. Points for discussion were identified in a paper enclosed with the letter:

1. Definition of the hour.

2. The "clock hour" versus the "program hour".

3. Feasibility of the maximum levels nominated by the Tribunal.

4. Monitoring strategies (by the television station licensee).

5. Other matters arising from the December 1990 Proposal.

FACTS lodged a submission with the Tribunal on or about 18 February in which it characterised the proposed maximum levels of hourly non-program content as "disguised regulation not self-regulation". Licensees and the public might, it said, be better served by "open, honest and direct regulation". It went on to make some fifteen separate points against the proposal.

The proposed self-regulatory code attracted the attention of the Trade Practices Commission which sought to participate at the conference. It pointed out that absent authorisation of such a code it could constitute a contravention of the Trade Practices Act by parties to any underlying agreement unless authorisation were first obtained from the Commission.
At the conference held on 20 February 1991, the Tribunal distributed a paper entitled "Review of Advertising Time on Television Options". On the basis of a recommended maximum of 13 minutes non-program content per hour in prime time (7 pm-10 pm) and 15 minutes per hour at other times, the following options were raised:

1. That the guidelines apply to programs, and that program length be measured from the scheduled (or advertised) commencement time of one program to the scheduled commencement time of the following program.

2. That the guidelines apply to programs, and the program length is measured from the actual commencement time of one program to the actual commencement time of the following program.

3. That that framework of these guidelines be worded in terms of "hours", and that the hour is measured from the clock hour and the half hour having regard to the commencing time of the program.

The definition of "prime time" was also discussed in the Options paper. It was considered appropriate for the current inquiry to maintain that prime time commenced at 7 pm. For options 1 and 2 there was no need to retain the cut off time as 10 pm as in many cases programs which commenced during prime time would not conclude by 10 pm.

In the course of the conference detailed oral submissions were made on behalf of FACTS and the Communications Law Centre, the Australian Consumers Association and other interested parties.
On 22 February, the Tribunal wrote to participants at the conference asking for their comments on whether there had been any changes to their stated positions in light of the matters raised at the conference. Comment was also sought on the guideline options contained in the options paper and on the comparative benefits of regulation, guided self-regulation and self-regulation simpliciter. These comments were invited by 6 March. Answers were received from various of the participants in the conference including FACTS. FACTS said its views had not changed. It did not regard any of the options as appropriate or workable. It saw no justification for regulation or guided self- regulation. Self-regulation of the kind exercised by stations in recent years would ensure the best outcome in the public interest.
The First Draft Standard - July 1991
On 18 July 1991, the Tribunal released a draft Program Standard and explained in a letter to FACTS which enclosed the draft, that it had decided that a system which relied upon uniform guidelines would not achieve the degree of certainty required by the viewing public. A standard setting the limits of non-program content permissible on commercial television to be measured by the "clock" hour was preferred. The Tribunal invited comment on the administrative implications of the Standard and on its structure. It also requested nomination of a suitable implementation date for the Standard with an outline of reasons for selecting that date. This comment was invited by 15 August 1991.

By cl.4 of the draft Standard a licensee could not transmit non-program matter for more than 39 minutes during prime time on any date nor transmit non-program matter for more than 14 minutes during any hour of prime time. If the period of prime time on any date were less than three hours the licensee could not transmit non-program matter during that period for more than the number of minutes calculated by a formula set out in the standard. For non-prime time, the limit per hour was 16 minutes. The overall limit was the number of minutes calculated by multiplying 15 minutes by the number of hours of non-prime time during which the licensee transmitted programs on the day in question. Prime time was defined as the period between 7 pm and 10 pm on any day. If there were a C period (children's television) or P period (pre-school television) within the prime time period, then prime time was that period minus the C period or the P period.
A Call for an Inquiry - August 1991
On 14 August 1991, Messrs. Allen Allen and Hemsley wrote to the Tribunal on behalf of the Nine network. In their letter they disputed the Tribunal's assumption that the limit of 13 minutes non-program time per hour during prime time represented current station policy and practice. They indicated that they were instructed that commercial stations currently broadcast between 13.5 and 13.75 minutes of non-program material per hour in prime time, not 13 minutes as suggested by the Tribunal. Introduction of the proposed standard would, it was submitted, lead to an unacceptable reduction in advertising revenues and/or an increase in advertising rates which would not be in the best interests of the Australian economy as a whole. It was contended that current non-program material levels were acceptable to viewers. The letter concluded:

"In our respectful submission, the Tribunal is obliged to hold an inquiry into this matter. The Nine Network wishes to be represented before such an inquiry and to call evidence in support of the submissions made in 1-5 above."

Various other submissions were received from interested parties. On 15 August 1991, the Seven Network wrote to the Tribunal advising that Network licensees had sought advice from senior counsel concerning the proposed standard and the conduct of the inquiry to that date. Senior counsel had advised the licensees that adoption of the proposed Standard by the Tribunal would be void. The letter requested a meeting between the Tribunal, representatives of the Network and of FACTS. A similar letter was sent by FACTS on 15 August. On 16 August the Tribunal replied indicating that a meeting would only be considered if there were an indication of the basis of the assertion that the adoption of the proposed Standard would be void.

On 20 August 1991, the Seven Network wrote to the Tribunal advising that counsel had given advice that adoption of the proposed Standard would be void because:

1. Contrary to its mandatory obligation under s.17C(1) of the Broadcasting Act the Tribunal had not held an inquiry into the proposed exercise of its substantive power.

2. The proposed exercise of power was outside the scope of the inquiry issues as formulated in November 1989.

FACTS also wrote to the Tribunal endorsing the comments in that letter.

On 19 August 1991, the Tribunal responded to Allen Allen and Hemsley's letter of 14 August. It noted that the potential financial impact of limiting the amount of non-program matter on commercial television was an issue that had been generally referred to on a number of occasions during the course of the inquiry but that no detailed submissions had been made on that point. The Tribunal wished to emphasise that there had been a lack of specific information received about alterations to station practices. On several occasions it had sought further information on revisions to the guidelines supplied with the licensee's renewal documentation. It requested further detail on the method of calculation for figures cited for prime time in the letter from Allen Allen and Hemsley and an estimate of the amount of non-program matters scheduled in non-prime time. The Tribunal also referred to its recent decision made in TCN Nine and GTV Nine licence renewal hearings and in relation to its inquiry into a series of share transactions concerning Nine Network Australia Ltd. The Tribunal observed that at these inquiries no submission was made relating to the impact on the financial capabilities of the licensees of any restriction on non-program matter. It invited any submission on that point and said it should reach the Tribunal by close of business on 22 August.
In a reply dated 21 August 1991, Allen Allen and Hemsley reasserted their belief that the Tribunal was obligated to hold an inquiry and their desire to call evidence and make submissions to that inquiry. They disputed that submissions about restrictions on the proposed limits on non-program matter were relevant to the license renewal hearings or the share transaction inquiry. They considered that the time limited for submission was unreasonably short. They did say, however, that the Nine Network currently broadcast about 41 minutes of non-program matter between 7 pm and 10 pm. The Tribunal's proposed limit was 39 minutes.
The Notice of New Issues - 30 August 1991
On 30 August 1991, the Tribunal issued a "Notice of New Issues" in the following terms:
"AUSTRALIAN BROADCASTING TRIBUNAL

REVIEW OF ADVERTISING TIME ON TELEVISION NOTICE OF NEW ISSUES

The Australian Broadcasting Tribunal is currently conducting an Inquiry to review advertising time on television.

Pursuant to Regulation 12 of the Australian Broadcasting Tribunal (Inquiries) Regulations the Tribunal has determined that new issues have arisen in this Inquiry which are substantially different from the previous issues. These new issues are:

1. Whether a Program Standard should be introduced which limits the amount of advertisements and program promotions that may be scheduled on television. If so,

2. The form that such a Standard should take

3. Such other matters as may be relevant to the Inquiry. Submissions are invited from the public and industry addressing these new issues. Submissions should reach the Tribunal's Sydney office before 5 pm on 23 September 1991. Copies of the Inquiry file IP/89/182 may be examined at all Tribunal offices, the State Reference Libraries in Darwin and Hobart, and at the Australian National Library in Canberra between 9 am and 5 pm weekdays. AT this 29th day of August 1991."

It was apparent from subsequent correspondence issued by the Tribunal that the Notice of New Issues was published in light of the opinion of counsel supplied to it by the Seven Network. Copies of the notice were sent to a variety of interested parties and it was advertised in the Commonwealth of Australia Gazette on 4 September 1991 with copies in The Australian, The Sydney Morning Herald and The Age. The Tribunal also indicated in letters to various interested parties that it had decided to seek further submissions.

More Calls for Further Inquiry - September 1991

On 2 September 1991, Allen Allen and Hemsley wrote to the Tribunal acknowledging the new issues to be considered in the inquiry and asserting that natural justice required the Tribunal to hold a hearing. At that time, they said, they wished to call evidence on the economic repercussions of the proposed Standard and to make submissions following that evidence. They sought the Tribunal's response to their request as a matter of urgency. In reply, on 3 September 1991, the Tribunal advised that options for the future conduct of the inquiry would be considered following receipt and analysis of submissions on the new issues notified on 30 August. The closing date for submissions was 23 September 1991.
On 9 September 1991, FACTS wrote to the Tribunal asking it to identify documents (whether on the inquiry file or otherwise) analysing the likely financial impact on stations of the hourly limits on non-program matter proposed in the draft Standard issued on 18 July. In reply on 12 September 1991, the Tribunal advised that:

"...this issue has only been generally referred to on a number of occasions during the course of this inquiry. However, to date, no detailed submissions have been made to the Tribunal on this matter."

On 20 September 1991, the Seven Network wrote to the Tribunal complaining about the short time for submissions. It was contended that one of the main areas of difference between the original inquiry and the expanded inquiry was the impact that the proposed draft standard would have on the financial position and operation of individual stations in the Seven Network. The Network was not aware of any documents to that point prepared by the Tribunal analysing the impact on licensees of a standard of the sort proposed. The Tribunal was asked again to identify all documents prepared by it or on its behalf which attempted an analysis of the potential impact of a draft Standard on licensee revenues, profitability, staff numbers, program preparation and program producers or advertisers. The Tribunal responded by sending to the Seven Network a copy of its letter of 12 September 1991 to FACTS. It extended the time for submissions to Tuesday, 24 September 1991.
On 23 September, Allen Allen and Hemsley on behalf of the Nine Network wrote to the Tribunal submitting that:

1. The Tribunal did not have adequate data upon which to make a decision;

2. The Tribunal had failed to examine the key economic issues.

3. The Tribunal should consider averaging on an annual basis.

4. An inquiry should be held.

5. The industry should remain unregulated.

These submissions were elaborated in the letter. Some criticism of the Tart Research was offered. It was said to be wholly inadequate for the purpose of determining whether a 13 minute limit was exceeded in the deregulation period.

The Seven Network also wrote again to the Tribunal on 23 September asserting that the matters raised by the amended terms of inquiry were not susceptible to being dealt with by submissions within the limited time permitted by the Tribunal. The letter requested a further 2 months to prepare submissions in relation to the new issues. The Tribunal rejected the request by a letter dated 26 September 1991 but indicated it would accept a submission from Seven Network until 27 September.
Current Non-Program Scheduling - Seven and Ten - September 1991
The Tribunal was advised by the Ten Network on 26 September 1991 that the Network was in the process of reducing its overall level of non-program matter in prime time to an average of 14 minutes. Its definition of prime time was the period 6 pm to 10pm. At the date of the letter the average was 15 minutes. The actual times ranged from between thirteen and one quarter minutes and sixteen and a half minutes. The Network remained of the view that deregulation should continue. The Seven Network advised on 26 September 1991 that its licensees currently broadcast 14 minutes per hour of non-program content in and out of prime time. This comprised 12 minutes per hour commercial content and 2 minutes per hour promotional content. Some exceptions to that general practice were listed. The figures given were not based on clock hours, nor on averaging across fixed clock hour boundaries. The Network said:

"High standards of presentation and imperatives associated with flexible management of inventory often dictate that a given break falls on one side of the clock rather than another, with the consequence that the above figure could be increased or decreased by as much as 3 to 3.30 minutes in respect of any given hour."

A Threat of Litigation on Extension of Time - September/October 1991

On 27 September, Mallesons Stephen Jaques wrote to the Tribunal on behalf of the Seven Network asking that it reconsider its refusal to grant the extension of time previously sought for making of submissions. In the event that the firm was not advised by 5 pm on 30 September that any submissions made on or before 30 November would be accepted and considered by the Tribunal, there would be no alternative for the Network than to apply urgently to the Federal Court for a review of the Tribunal's decision. The Tribunal nevertheless refused the extension by letter dated 2 October 1991. On 3 October 1991 an application for an order of review was filed in the Federal Court by members of the Seven Network. It sought review of the Tribunal's decision of 30 August 1991 to allow the applicants until 5 pm on 23 September 1991 for the lodgment of submissions relevant to the new issues raised by the Tribunal. In a supporting affidavit sworn on 8 October 1991, Sean O'Halloran, the Director of Broadcast Policy for the Network, asserted that the new inquiry issues were important to the viability of the applicant and that the impact of the proposed new Standard on the applicant's operations and financial position required an informed assessment and analysis in order to prepare full and proper submissions in relation to the new issues in the inquiry. He also argued that there was a need for the applicants to be represented separately from FACTS as a standard with universal application would affect competing stations in different ways. Examples of this were set out in the affidavit. Reference was made to preparatory work which had been carried out in preparing submissions for the respondents. Specifically Mr O'Halloran said that he had retained KPMG Peat Marwick as financial consultants to the Network to undertake a detailed financial analysis of the impact upon each of the applicants of the various forms of standards which could be imposed pursuant to the new issues in the inquiry. He was informed and believed that KPMG would require about 6 weeks to complete such an analysis which would involve both qualitative and quantitative assessments.
Subsequently the Tribunal decided to allow until 2 December 1991 for further submissions to be lodged by all interested persons and the Federal Court proceedings were dismissed on 17 October 1991. In a letter sent to interested persons the Tribunal said:

"The Tribunal has decided to allow a further period of time in which submissions on the new issues for this Inquiry may be lodged.

These issues, which were advertised in early September this year are as follows:

1. Whether a program standard should be introduced which limits the amount of advertisements and program promotion that may be scheduled on television. If so,

2. The form such a standard should take.

3. Such other matters as may be relevant to the Inquiry. Any further comment you may wish to make on these issues should be lodged with the Tribunal's Sydney office before close of business Monday 2 December 1991."

On 8 November 1991 the Tribunal wrote to the Nine Network seeking confirmation that the levels of non-program matter quoted in letters from Allen Allen and Hemsley on 14 and 21 August 1991 represented current practice for stations in the Nine Network. On 22 November 1991 the Tribunal circulated a staff analysis and commentary on data obtained from Australian Independent Media Data which was said to provide updated information on station practices in regard to the scheduling of non-program matter on television.
Financial Impact on Seven - Request for Extension
On 26 November 1991, the Seven Network advised that it had received a draft report from KPMG Peat Marwick concerning the financial impact on the Seven Network of the Tribunal's proposal to reimpose hourly limits on non-program content. It was expected that the report could be lodged with the Tribunal no later than Monday, 2 December. The purpose of the letter was to request that the Tribunal allow the Network a further 10 days to prepare its own submissions in connection with the KPMG report. Initially the Tribunal refused this request by a letter dated 28 November 1991, but on 3 December 1991 it extended the period for written submissions to close of business on Wednesday 11 December 1991. In its letter of advice to that effect to Mallesons Stephen Jaques the Tribunal stated that all matters that the Seven Network wished to raise in respect of the inquiry should be addressed and that the network should not limit itself therefore in terms of the extension only to the KPMG Peat Marwick report.
Current Non-Program Scheduling Practice - Nine Network - December 1991
Allen Allen and Hemsley wrote to the Tribunal on 3 December 1991 in response to its inquiry of 8 November 1991 and said, inter alia:

"1. Prime time

Currently the television stations in the Nine Network broadcast between 14 and 15.08 minutes of non-program matter per hour in prime time, that is to say, between 42 and 45.25 minutes of non-program matter.

2. Non Prime Time

Currently the television stations in the Nine Network broadcast about 15 minutes of non-program matter per hour in non-prime time, broken into about 13 minutes of commercials and 2 minutes of promotional material."

Variations to that rule which occurred during sports telecasts between midnight and 6 am were also mentioned.

The KPMG Report Submitted - 11 December 1991

The KPMG report was evidently provided on 11 December 1991 with a letter from the Seven Network. In its letter the Network asked the Tribunal to reconsider its expressed preference for hourly limits on non-program content. Such limits were said to be counterproductive, rigid and to divert revenue from program production. The AIM data circulated by the Tribunal was said to be fundamentally unreliable. It was said that it should not form the basis of or influence any decision to be made by the Tribunal. Some specific criticisms of that data were then made. Reference was made to the KPMG report and to the gross annualised financial impact of the proposed limits on the network. That figure was subject to reduction by about 47% per annum if the network were to exploit certain eccentricities in the proposed Standard, in particular by increasing commercial content between 6 pm and 7 pm by 1 minute. A financial impact of that magnitude was said to be unfair and unnecessary.
The Second Draft Standard - December 1991
On 18 December 1991 the Tribunal circulated a proposed draft standard under which:

1. Nominated levels per hour were to remain at 13 minutes in prime viewing time and 15 minutes at other times with provision for averaging up to a maximum 14 minutes in any one hour in prime viewing time and 16 minutes at other times.

2. Prime viewing time would be extended from the period between 7 pm and 10 pm to the period between 6 pm and 10.30pm.

3. Shopping guides and similar programs would be exempted from the calculations of non-program matter broadcast per hour.

The Tribunal invited comments on the administrative implications of the draft Standard as well as on its structure. A news release on the draft standard was issued by the Tribunal on 19 December 1991. It was proposed that the standard would commence on 1 March 1992. The parties to the inquiry were invited to comment on the draft by 15 January 1992. The final decision and report would be released in late January.

AIM Data responded to the Seven Network's criticisms of its report by a letter to the Tribunal dated 19 December 1991. On 8 January 1992, the Seven Network advised the Tribunal that it would not be in a position to provide detailed comments on the proposed draft by 15 January 1992. In particular, it would not be able to complete a detailed financial analysis prior to the end of January. An extension of the closing date to 31 January was sought. In the meantime it was submitted that the draft standard had "horrific implications for revenue and for program expenditure". It would, according to Seven, effectively reduce the number of minutes of advertising permissible under the previous draft during prime time (6 pm to 10.30 pm) by 21 minutes per week. Preliminary estimates suggested an annualised financial impact on the network of about $25 million.

The Tribunal responded on 10 January extending the closing date for submissions to 31 January. It required, however, that all relevant information should be provided by that date as no further extension would be given.
A Call for Further Inquiry - January 1992
On 14 January, Allen Allen and Hemsley on behalf of the Nine Network reiterated its previously stated position that the Tribunal did not have adequate data upon which to make a decision. It maintained that the Tribunal had failed to examine key economic issues, that it should consider averaging on an annual basis and that an inquiry should be held at which the Nine Network could give evidence. It also maintained that the industry should remain unregulated. Ten's position, expressed in a short letter of 14 January, was that it remained of the view that advertising deregulation had been a success and should continue.
On 22 January 1992, Allen Allen and Hemsley again wrote to the Tribunal seeking an undertaking that it hold a hearing at which the Network could present evidence establishing the factual basis of its substantive submission and challenging the apparent factual basis of the Tribunal's "apparent approach". Federal Court action was threatened in the event that the undertaking was not given by 5 pm on that evening. On 23 January 1992, TCN 9 and others commenced proceedings in the Federal Court in relation to the proposed determination of a Standard.
On 23 January, the Tribunal wrote to interested parties, including Allen Allen and Hemsley and the Seven Network, advising that it had decided to allow both the Nine and Seven Networks to make oral submissions on matters related to the December 1991 Draft Standard. These oral submissions were to be heard on 11 February. The letter said:

"The Inquiry to Review Advertising Time on Television which commenced in October 1989, has involved a comprehensive and detailed examination of the relevant issues. It would therefore be obvious that the Tribunal's consideration of these issues has by this stage moved close to a final determination."

A further report from KPMG was provided to the Tribunal by the Seven Network on 29 January. It offered a re-evaluation of the possible financial impact on the Seven Network of the amendment to the proposed Standard, particularly the changed definition of "prime time" as running from 6 pm to 10.30 pm. The Seven and Nine Networks provided outlines of their proposed evidence and submissions to the Inquiry by letters dated 4 and 7 February 1992.

Nine Network's Oral Hearing - 11 February 1992

On 11 February 1992, the Tribunal held a hearing at which the Nine Network presented evidence and made submissions. The hearing was conducted before Mr Wilson, one of the two members of the Tribunal who had been designated by the Chairperson to conduct the inquiry. The other member, Ms Brookes, was unavailable. Evidence was taken from Mr Paul Baxter, the partner in charge of the Economic Studies and Strategies Group of Price Waterhouse, Professor Ronald Bewley, an Associate Professor in Econometrics at the University of New South Wales and Professor Thomas Parry, an Economics Advisor with the Price Waterhouse Economic Studies and Strategies Group and also an Associate Professor of Economics at the University of New South Wales. The principal evidence was led from Mr Baxter. He described market-like and classic market mechanisms which operate in relation to advertising on commercial television and which affect both consumer viewing choices and the price paid by advertisers for air time. He saw the impact of a cap on advertising as generating inefficiencies and inequities by imposing artificial rationing of commercial time on television. Prospective advertisers would be compelled to use less desirable time slots and perhaps even to place advertisements with networks they might not otherwise have chosen. He criticised the Tart data for its heavy reliance upon mean data gathered under both regulated and deregulated regimes. He did not believe that the research offered statistically sound conclusions. He also criticised the use to which the Tribunal's complaints data had been put. To simply plot the incidence of complaints received over time made no allowance for the changing levels of viewing audience. Such data could not be taken as representative of the reaction of an audience as a whole to the level of program interruption over a particular period. Australian Consumer Association surveys had been based upon invitations to readers of the Association's magazine to forward their view. The information thus gathered did not appear to have been subjected to any test of its statistical significance. Research conducted by Reark and Kenning was based on a spot check approach and did not necessarily reflect the true picture of what had happened over a period of time.
Mr Baxter went on to say that to assess the impact of advertising limits on the networks some sort of economic model of the situation in which those limits were imposed should be developed.
Evidence was also called from Mr David Leckie, the Managing Director of Nine National Australia Ltd, Nicholas Falloon, the Network's Financial Controller and Lance Lothringer, the Director of Sales. Their evidence, largely presented by Mr Leckie, was taken in part in confidential session. I will refer to that evidence without referring to specific figures that were cited. Mr Leckie produced a document entitled "Calculation of Revenue Loss if Proposed Standard Introduced". It indicated a substantial revenue loss if the proposed Standard were introduced.
The Tribunal questioned Mr Leckie on aspects of his evidence thus far. He then produced a further document entitled "Summary of Revenue and Operating Costs". This applied to TCN 9, GTV 9 and QVQ 9. It showed revenue and operating costs for the years 1988 to 1991 inclusive. Mr Leckie explained that the document was produced "to hopefully highlight to the Tribunal that if this proposed Standard was inflicted upon us from 1 March, or wherever, it would have a dramatic effect on our ability to make a profit". As a public company, the Network had to maintain profit levels. He did not believe that advertising rate increases would offset the effect of the new Standard. It would be necessary to cut costs and this would mean for the most part, reducing the number of Australian programs shown.
Mr Leckie criticised the conclusions drawn from the Reark Research that there had been a significant increase in viewer dissatisfaction with television advertising since deregulation was introduced. Research carried out by FACTS and Nine Network seemed to support the proposition "that there hasn't been a real change in viewer's perception and acceptance of advertising content following the deregulation". On the contrary, their research had shown that "the perception of content on television since deregulation is still that people are happy and that they think it is the same as they've always encountered". Eight five per cent of people did not believe there had been a change from what they had always watched. The impact of the proposed Standard limiting advertising on an hourly basis could lead to insertion of unnatural advertising breaks in feature films in order to achieve desired hourly content levels.
The Tribunal asked Mr Leckie to give some thought to advertising limits calculated by an averaging process. After some consideration he told the Tribunal that this would help in terms of presentation, but so far as revenue loss was concerned it would be of only marginal assistance.
As Mr Leckie's evidence came to its conclusion, the Tribunal indicated that it might require some further figures and information arising out of the documents he had presented. The Tribunal indicated that it would like to set up an arrangement perhaps between one of its officers, Mr Myers, and Mr Falloon where information could be requested either over the telephone or by letter. Mr Leckie was asked whether he could see any difficulty in dealing with such request rapidly. He responded that it would help for clearer communication if the questions were in writing but that there would be no problems with the Tribunal communicating either with Mr Falloon or the Network's general counsel, Mr McLachlan.
There followed submissions by Mr Jones on behalf of the Network. At the end of those submissions, Mr Wilson, sitting as the Tribunal, said:

"As I indicated at the commencement of proceedings we are hearing from the Seven Network on Monday. We would be hoping to make a decision on this matter quite soon thereafter and we have been working on it and the material you have given us today gives us more things to work on, more things to think about. But in terms of framework we are still contemplating that framework."

He went on to say that it was the general intention of the Tribunal to try to have the matter resolved one way or another within the framework they had indicated in December:

"So, to the extent that there may be information of survey material or any further financial information, the sooner we get that the better. So, just so long as everybody understands that. I don't want to get into the process can we have it by close of business this day, I think everyone appreciates that as far as we are concerned any information we are seeking is urgent now, the sooner we get it the better."

On 12 February, general counsel for the Nine Network, Mr James McLachlan sent to the Tribunal copies of two research reports, one dated September 1989, the other dated August 1991 prepared by the Kenning Research organisation and entitled respectively "Nine Network Survey of Viewer Attitudes Towards Commercial Content" and "Sydney TV Commercial Content Audience Attitudes Monitor". The letter indicated that both documents had previously been lodged in the course of the inquiry. A note from a Tribunal officer indicated that there was no record of either of the research reports having been previously submitted. The September 1989 report offered the conclusion that the weight and scheduling of advertising on Nine had not given rise to any significant perception by viewers as a whole of there being increased content. It remained the case, so it was contended, that the content in the average program covered by the research (i.e. early evening programming) was acceptable to the majority and unacceptable to only a small percentage of viewers. The August 1991 report concluded that there was evidence of there having been some reaction to the current levels of commercial content compared with those at the times of previous surveys. These minor shifts on measures of program enjoyment and content acceptability did not change the basic finding that, for the majority of viewers, the current level in the average program remained acceptable. It was suggested in the report that general attitudes towards commercial television had hardened somewhat, the reasons for which might be understandable in the light of the financial events of the last couple of years, and that this was being reflected in general attitudes towards commercial content, notwithstanding the continued acceptability of what people actually experienced in the average program.
Further Information Sought from Nine - 13/14 February 1992
In the early afternoon of 13 February 1992, Mr Myers telephone d Mr Falloon seeking clarification of some detail in the two documents tendered through Mr Leckie in his evidence before the Tribunal in confidential session. He asked whether the figures for times (presumably a reference to loss of advertising and promotional and non-program times) in the documents were fixed or average times. Falloon replied that they were averaged times. He was asked whether the document assumed that advertising rates would remain fixed if the draft Standard were introduced and said that it was assumed that they would remain fixed. As to advertising displaced by the Standard, when asked whether it was assumed it would go to another time slot, Falloon said the paper assumed that advertising would be lost. According to Mr Myers he told Mr Falloon that he would write to him through Mr McLachlan, to get his written responses "as a formality". In the course of the conversation, Mr Falloon told him that the draft Standard would have "an adverse and severe effect on Nine Network's revenue position". Falloon himself swore an affidavit in which he said he recollected that the person who had phoned him asked questions and that he gave "general responses to the effect of the account given by Mr Myers in his affidavit". He did not agree that Mr Myers had indicated that he would write through Mr McLachlan to get the responses in writing as a formality. According to Mr Falloon he told Mr Myers that there was no point in trying to answer the questions over the phone. They should be set out in writing and Mr Myers should direct the correspondence through the Nine Network's general counsel, James McLachlan, as was agreed at the end of the inquiry. He said Myers told him he would do that but that the Tribunal wanted the answers promptly.
On 14 February 1992, Mr Myers wrote on the letterhead of the Tribunal to Mr McLachlan in the following terms:

"I am writing to request additional information in relation documents tabled at the Review of Advertising Time on Television. My questions relate to inquiry documents: . RA212 'Calculation of Revenue Loss for : TCN9 GTV9 QTQ9 if Proposed Standard introduced.' and

. 207, The letter from Allen, Allen and Hemsley to the ABT dated 7 February 1992.

1. Regarding RA212, please provide average non-program (advertising and promotional) times for each time zone of each day of the week. Please specify, over what dates are they calculated.

2. Regarding RA212 and in light of Mr Leckie's statements at 1 and 2 in Doc. 207, will you confirm if advertising rates in document RA212 are assumed to remain constant.

3. Provide details of average advertising rates for the same times and over the same period as is applied to item 1. above. In addition provide a definition of advertising time including treatment of bonus spots and realisation rate.

4. Regarding RA212, what assumptions are made about advertising displaced from peak time hour slots by the proposed standard.

5. Given the results detailed in RA213 which assumes that the advertising rate per time slot does not vary if the quantum of available quantum of advertising time varies. Please provide details of the worksheets which demonstrate the impact of 1991 revenue and operating surplus for a full year of a 5% increase in advertising rates. Please consider this matter urgent. Should you require clarification on any of these items please contact me."

Seven Network's Oral Hearing - 17 February 1992

On 17 February, the Tribunal heard evidence from the Seven Network. The witnesses called at this hearing in a kind of panel format were sworn in together. They were Robert Campbell, the Chief Executive for the Network, Peter Day, its Finance Director, Dominic Stone, the Presentation Manager, Len Jensen, the Traffic Director, Michael Harrison, the Sales Director, and two representatives of KPMG Peat Marwick being Bruce Green, designated Partner, Business Analysis and Colin Flynn designated Director, Business Performance Reviews. Evidence was given initially by Mr Campbell who emphasised the revenue penalties resulting from the process of re-regulation which, he said, were "enormous" and which would lead to a reduction in Australian production. Mr Campbell expressed his view that the Network had a well argued case for the continuance of what had been a successful experiment in self regulation. What they wanted to do at the hearing was to explore in some meaningful way a form of regulation under which the Tribunal could feel confident that the viewer's interests were protected and under which the Network could feel confident of going forward with the integrity of its program schedule and earnings base substantially preserved.
Messrs. Flynn and Green from KPMG Peat Marwick then referred to the two reports of November 1991 and January 1992 analysing the financial impact of the draft standards on the Seven Network. Mr Green began by outlining the principal assumptions made in undertaking the analysis and Mr Flynn went on to describe its methodology. A number of questions were put to Mr Flynn in particular by the Tribunal relating to the incidence of bonus spots during the broadcasting week selected for consideration in the KPMG Peat Marwick report. A bonus spot is time made available to an advertiser for advertising without additional charge. Mr Harrison gave general evidence about the state of the market. He also gave evidence in confidential session relating to advertising sales and rates. He indicated that there was a fixed price commitment under existing contracts which was linked to audience delivery for the coming year. He was asked about bonus spots and the extent to which the Network could use them to generate additional advertising revenue. Mr Campbell gave additional evidence that marketing budgets of major advertisers were subject to detailed scrutiny affecting adversely the ability of the networks to increase their advertising rates. There was considerable pressure on large advertisers to at least hold to existing levels of expenditure, if not effect real reductions in it.
Further evidence was then given by Messrs. Green and Flynn. It was put to them by Ms Brookes of the Tribunal, that a restriction on the total amount of advertising time would reduce advertising clutter which would be more advantageous to a media buyer. He appeared to take the view that there was little price elasticity available as a result of imposing limits on advertising. He accepted that this was his view in respect of the next 12 month period, but in the longer term there might be some elasticity.
Mr Campbell expressed the view that for most of the 25 years of the existence of three networks in Australia, there had only been really enough advertising air time demand for two and a half networks. The fact that the three networks had survived and that all supported a three network system belied the fact that in advertising demand terms there was only enough for two and a half. As long as there was advertising time available from whoever happened to be the third rating network, the medium would in some measure remain inelastic because people would use that fact in negotiation as a means of suppressing what would normally be, in the most very buoyant of years, a simple supply and demand equation. He also made the point that good programs are used as a lever to get revenue into less attractive programs. Flexibility was required in better rating programs to ensure a revenue base across the whole of prime time.
Mr Jensen gave evidence in relation to average rates and bonus spots. Some discussion ensued on the financial impact of the proposed limits as propounded in the second KPMG Peat Marwick report. The question of clock hour limits, vis a vis, averaging and a "floating clock hour" was also discussed with the aid of a demonstration video which the Tribunal watched.
At the close of the hearing Mr Wilson, after referring to some additional information required from the Seven Network, said:

"We still hope to have a decision finalised by the end of the month and we indicated that to Channel Nine last week - you would have read it in the transcript - so we are at a stage of our thinking about this matter where we haven't set the thing in concrete but we've clearly passed the stage of going back to the beginning of the inquiry file and reading page 1 and working our way through so we're really at that peak time of determination and a lot of preliminary work has been done but there are a number of issues which we will now go and thrash out between ourselves in terms of the matters that have been dealt with today and last week ..."

In my opinion, the Tribunal did not act unfairly in proceeding to promulgate the Standard without waiting further for the response to its letter of 14 February. The Nine Network had had an opportunity to put its concerns about financial impact to the Tribunal at the hearing conducted on 11 February 1992. It had also presented documentary material at that time. By February 1992, the general process of review of the operation of deregulation in relation to advertising and promotional time on television had been going on for over two years, since the expiry of the trial period originally designated by the Tribunal in 1987. The requirement of expedition imposed by s.25, considered against the historical background which has been outlined, in my opinion, required the Tribunal to move without further delay to a resolution of the question whether any and if so what Standard should be promulgated in relation to non-program material. On any view of the history there had been extensive and substantial consultation with the industry. There was no procedural unfairness in the Tribunal's decision to promulgate the Standard notwithstanding that it had not received a response to its letter of 14 February 1992 directed to the Nine Network. Nor did it, in my opinion, have any obligation in fairness to pursue the Nine Network with a view to extracting a written answer from it before it proceeded to decision. Ground 2 of the Nine Network's grounds of application therefore fails.
The second complaint of breach of the rules of natural justice arises under Ground 2A of the Nine Network application and is also raised by Seven. It has two limbs. The first of these is that the Tribunal failed to notify the applicants that it was considering the inclusion of a transitional period in the Standard. The submissions put in support of this ground were not particularly easy to follow. Their central rationale seems to have been that, to the extent that the Tribunal may have regarded the transitional period as mitigating the financial impact of the more stringent limits to be imposed from 1 September 1992, it was obliged to seek the responses of the Networks to that view. It is sufficient to say that the introduction of the transitional period was by way of concession to mitigate any immediate impact and, in the words of the Tribunal, "to allow for market adjustments and to minimise financial disruption". That is not to say that there would not be some dislocative effect upon the introduction of the Standard. Although the financial impact of the Standard was a factor which the Tribunal was entitled and obliged to have regard to, it was not constrained to either avoid or minimise any such impact. In the circumstances, the transitional period was introduced by way of concession. There is no procedural unfairness arising from the fact that the Tribunal did not invite submissions on that option. Having regard to the history of its inquiry and the background to the inquiry, the transitional period may be seen as a response to expressed concerns about the financial impact of the reintroduction of a limiting standard. The first limb of Ground 2A therefore fails.
The second limb involves a submission by both applicants that there was material added by the Tribunal to the inquiry file after the last day on which the applicants were permitted to make submissions. The material was said to bear upon the Tribunal's decision. The applicants say they had no reason to know or expect that such material would be added to the file after the closing of the time for submissions. The argument in this respect focussed particularly on a document numbered 218 on the inquiry file. It was an extract from a publication called "Media Week" in which the following statement appeared which was attributed to Michael Harrison, Seven's Sales Director:

"The state of the television ad market just now is conservative optimism. There is no doubt still uncertainty, but I have seen no sign of major advertisers being more hesitant to sign contracts than last year. This year the television market will be status quo in real terms and Seven's bookings will be up about 5%."

There was then interpolated what appears to be an italicised editorial comment:

"As Seven raised its rate by between 8% and 11% for 1992, this means a decline in real terms."

This, it was submitted by counsel for the Seven Network, was completely contrary to what had been said by the Seven Network representatives at the oral hearing.

There is no evidence that the contents of this document were taken into account by the Tribunal. There was no explicit reference to it in the Tribunal's reasons or to the figures attributed to Mr Harrison in the article. And as counsel for the Tribunal pointed out, Mr Harrison had told it in confidential session that he would report higher levels in the trade press than was actually the case for the reason that "... those who have those figures need to see a commensurately higher figure so they can go back to their client and say, see what a good deal we did for our client through Seven". He observed in that connection "so there's a bit of skulduggery goes on in the reporting process."
The complaints otherwise made in support of this limb of Ground 2A had a somewhat speculative ring about them. Counsel for the Tribunal pointed out correctly in my opinion, that reg. 6 of the Inquiries Regulations does not require the Tribunal to take account of any document that it puts on the inquiry file. I am not satisfied on the evidence that there has been any breach of natural justice in relation to the Media Week extract or any other document placed on the file. The second limb of Ground 2A therefore fails.
The Rational Basis for the Decision
Ground 3 alleges that the Tribunal's decision to impose the Standard is so insupportable by reference to the surrounding facts that it amounts to an error of law. The ground refers in part to the particulars of Grounds 1, 2 and 2A, none of which would seem to have any application to it bearing as they do upon the question of alleged breaches of the rules of natural justice. It also relies, however, upon various factual errors invoked in support of ground 4 relating to the failure to take into account relevant considerations, Ground 5 relating to absence of evidence to support various findings and Ground 6 relating to irrelevant considerations said to have been taken into account. The particulars to Grounds 10, 11 and 13 are also invoked relating to alleged failure to observe procedures required by s.16(2) and failure to observe procedures otherwise required by law. The applicability of these latter particulars is difficult to see. In essence, this Ground reflects a broad attack mounted by both applicants upon the essential rationality of the Tribunal's decision. It overlaps with Grounds 4, 5 and 6 which it specifically invokes and with the unreasonableness point raised in Ground 7.
In these proceedings, it is essential to maintain the distinction between judicial review and review on the merits which invites the court to undertake the role of a primary decision-maker. In Minister for Aboriginal Affairs v. Peko Wallsend Ltd (1986) 162 CLR 24 at 39, Mason J. (Gibbs C.J. and Dawson J. agreeing) emphasised the need to constantly bear in mind the limited role of a court reviewing the exercise of an administrative discretion. It is not the function of the Court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in that person. Thus the weight to be given to various considerations which are required to be taken into account in exercising a statutory power is generally for the decision-maker to determine. On the other hand there is a pervasive requirement for rationality in the exercise of statutory powers based upon findings of fact and the application of legal principle to those facts - Othman v. Minister for Immigration and Ethnic Affairs (1991) 24 ALD 707 at 711. A serious failure of rationality in the decision making process may stigmatise the resultant decision as so unreasonable that it is beyond power. Alternatively, lack of rationality may be reflected in a failure to take into account relevant factors or the taking into account of irrelevant factors. Each of these heads of review seems to collapse into the one requirement namely that administrative decisions in the exercise of statutory powers should be rationally based.
The general attack raised in Ground 3 as I interpret it, encompasses the objections to the Tribunal's decision in Grounds 4, 5, 6 and 7. So far as it relates to failure to take into account relevant considerations the ground attracts the application of the strictures attaching to that head of review which were enunciated by Mason J. in Minister for Aboriginal Affairs v. Peko Wallsend (supra):

1. The ground of failure to take into account a relevant consideration can only be made out if a decision maker fails to take into account a consideration which he is bound to take into account in making the decision.

2. The factors a decision maker is bound to consider in making a decision are determined by the construction of the statute conferring the discretion.

3. Not every consideration that a decision maker is bound to take into account but fails to take into account will justify the court setting aside the impugned discretion and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account would not have materially affected the outcome.

4. The limited role of a court reviewing the exercise of an administrative discretion must be borne in mind (see above).

5. Absent any statutory indication the weight to be given to various factors is generally for the decision maker to decide.

In dealing with judicial review of the decisions of a specialist tribunal, the tribunal is generally in a better position than the Court to assess the weight to be given to evidence offered to it and the way in which facts proved by such evidence should be taken into account.

I do not propose to canvass in detail each of the many matters relied upon under these grounds to impugn the Tribunal's decision. To do so in my opinion, would be to embark upon the kind of consideration of the merits of the decision which is to be eschewed in judicial review. I accept that the financial impact of the Standard upon existing licensees was a matter which was relevant to the Tribunal's decision and which it was required to take into account. The nature of the Standard under consideration necessarily meant that it would impinge upon the revenues which could be earned from advertising by licensees. Provisions of the Act relating to the need for commercial viability of television services, the requirement that a licence be granted only to an applicant with the financial capability to provide an adequate and comprehensive service and the requirement for continued financial capability in that regard point to a need for the Tribunal to take financial consequences into account when determining program standards.
The specialist nature of the Tribunal, however, requires that particular weight be given to its assessment of the evidence in relation to the financial impact of the Standard and its balancing of that financial impact on licensees against the wider public interest. In the ultimate analysis the Tribunal is not bound to decline to impose a program standard which might have serious financial impact on the operation of a particular licensee or licensees. The final decision, involving as it does a consideration of the public interest, does not lend itself to mere quantitative justification. It is evaluative and normative in character.
In this case it is said that the Tribunal failed to take into account the economic ramifications for licensees of the imposition of a limitation on non-program material. Underlying this submission there seems to be a concern that the Tribunal did not accept the "horrific" consequences predicted by the applicants and their witnesses in the event that a limitation were imposed. There was considerable reference in the reasons for decision to the economic contentions advanced for the applicants. The Tribunal accepted that the imposition of a Standard might "require some adjustments". But it was not prepared to accept that the financial impact would be "substantial". The word "substantial" so used in the reasons is to be read in the context of the preceding statement that the Tribunal was not of the view that the financial impact of the Standard would outweigh or negate its benefits to television viewers. It involved a value judgment. Nevertheless the Tribunal was plainly sceptical of some of the more apocalyptic elements of the financial evidence presented to it. It was entitled to say so and in effect did say so. And it was entitled to give great weight, as it did, to considerations of the wider public interest.
The Tribunal's treatment of the KPMG reports was particularly criticised. It was submitted for the Seven Network that this material represented "the only thoroughgoing material which calculates the financial impact of a Standard on the applicants". It was submitted that any rejection of this material must be by rational argument derived from probative evidence. The criticism was made that the applicants were confronted in the Tribunal's reasons for decisions with "generalised conclusions unsourced to any probative material". Specific findings attacked on this basis and the associated criticisms were as follows:

1. The Tribunal stated that it is reasonable to assume that advertising value would increase to some extent given the reduced clutter in program interruptions following adoption of the Standard. The criticism was advanced that the Tribunal should at least have made an express finding that the value would increase to an extent likely to overcome the potential for severe financial impact on the applicants. But the Tribunal was entitled to discount the weight to be given to the financial evidence from the applicants by pointing to factors which were not addressed. This did not require quantitative conclusions to be expressed. Rather it identified a deficiency in the evidence.

2. The Tribunal stated that the KPMG assessment concentrated on 1992 projections without addressing the potential impact of an economic recovery in subsequent years. This was criticised as an indication by the Tribunal "that a post 1992 recovery should be taken into account". The finding, it was said, was made without referring to any probative material as to whether or when such a recovery is likely to occur or its effects on the applicants. As to that it is sufficient to say that the statement criticised does not involve a finding about economic recovery, merely a criticism that the KPMG report did not consider that possibility.

3. After referring to "parameters and assumptions" underlying the KPMG findings, the Tribunal said that, taken together, these factors must imply that the revenue loss projections are a worst case scenario and do not reasonably reflect a realistic outcome. Implicit in this, it was submitted, is a finding of what a realistic outcome is and this finding is nowhere exposed for scrutiny. But the Tribunal's view was a criticism of the report which did not require a positive finding of some alternative. It constituted a statement by the Tribunal that it did not accept the gloomy prognosis offered by the Seven Network through the KPMG reports. The Tribunal was entitled so to conclude.

Other criticisms of the Tribunal's approach to the KPMG report were in similar vein and are similarly answered. The Tribunal has, in my opinion, adequately exposed its reasoning for the purpose of explaining the ultimately normative conclusions at which it arrived about where the public interest lay.

The fact that the Tribunal had formed the view that the trial period of deregulation had not failed was said to be a relevant matter which it did not take into account. The Tribunal did refer to that conclusion in its reasons for decision. The success of the trial period was determined by reference to criteria which emphasised frequency of interruptions rather than the hourly amount of non-program material. The Tribunal was not bound to limit its consideration of the proposed Standard by reference to the "success" or "failure" of the trial period.
The lack of statistically valid data to support a finding that television viewers thought existing levels of non-program material had increased beyond acceptable levels was also said to be a relevant factor not taken into account by the Tribunal. This criticism was an invitation to the Court to enter into merits review. So too was the complaint that the Tribunal did not take account of its own research demonstrating that previous complaints to it were unrepresentative of the views of the community as a whole.
Ground 5 alleges an absence of evidence to justify various findings by the Tribunal. What it criticises are largely conclusions or inferences drawn by the Tribunal which involved matters of opinion, prediction or normative assessment. One example is that the amount of non-program material shown had increased beyond levels acceptable to viewers. These conclusions were peculiarly within the province of the Tribunal as a specialist body with a considerable accumulation of experience in the area of its inquiry. Given the range of material that was before the Tribunal, I am not persuaded that they were not open to the Tribunal to make. As already noted, Ground 6 relating to irrelevant considerations essentially traversed the same findings.
In the event, I am satisfied that on the face of its reasons and having regard to the evidence before it, the Tribunal demonstrated a rational basis for its conclusions albeit they involved elements of evaluative and normative judgment. Grounds 3, 4, 5 and 6 fail. For the same reason, Ground 7 which alleges that the decision was so unreasonable that no reasonable person could have made it, must also fail.
Having regard to the general history of the review process that followed the deregulation trial up to and including the oral hearings in February 1992, the Tribunal, in my opinion, also discharged its duty of carrying out a thorough investigation of all matters relevant to the inquiry. I am satisfied also that it has discharged its duty to consult with representatives of licensees. In my opinion, Grounds 10 and 11 fail.
Sufficiency of the Reasons
It follows from the preceding conclusions that I regard the reasons for decision published by the Tribunal as a sufficient discharge of its obligations to report under s.25B of the Act.
The criticism was made of the Tribunal's reasons that they were ex facie incomplete because of a statement on the opening page that a more comprehensive report would be published setting out the background to the inquiry, summaries of information and details of the research considered. The statement and other like references do not, in my opinion, imply that the published reasons are incomplete. They must be judged on their own merits and I am satisfied that they are sufficient.
Uncertainty

By Ground 7A it was said that the making of the decision determining the Standard was an improper exercise of the power conferred by the Broadcasting Act 1942 in that the power was exercised in such a way that the result of the exercise of the power was uncertain. This was said to be demonstrated by anomalies arising from the way in which the Standard could be applied in particular cases. As I observed in the course of argument, the fact that the exercise of a power might, in particular circumstances, give rise to an odd result does not make it uncertain. This ground was not made out.
CONCLUSION
The applicants have sought to attack on essentially factual bases what was ultimately a normative and evaluative judgment about the public interest. They could not in my opinion succeed without involving the Court in a process of review on the merits of the findings of a specialist Tribunal in areas in which it has relevant expertise. The Court does not accept that invitation and the applications must be dismissed with costs.

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Citations

TCN Channel Nine P/L v Australian Broadcasting Tribunal Amalgamated Television Services P/L v Australian Broadcasting Tribunal [1992] FCA 730 ((1992) 28 ALD 829)

Cases Citing This Decision

0

Cases Cited

7

Statutory Material Cited

0

Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29

R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10

National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29

[1992] FCA 730

30 SEPTEMBER 1992