TCN Channel Nine Pty Ltd v Australian Broadcasting Tribunal
[1992] FCA 440
•24 JUNE 1992
Re: TCN CHANNEL NINE PTY LIMITED; AMALGAMATED TELEVISION SERVICES PTY LTD; HSV
CHANNEL 7 PTY LTD; BRISBANE TV LTD; SOUTH AUSTRALIAN TELECASTERS LTD and TVW
ENTERPRISES LTD
And: AUSTRALIAN BROADCASTING TRIBUNAL and COMMUNICATIONS LAW CENTRE
Nos. N G145 and 154 of 1992
FED No. 440
Broadcasting
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Gummow J.(1)
CATCHWORDS
Broadcasting - review of Program Standard executed by Division of Australian Broadcasting Tribunal limiting amount of non-program matter that licensee of television station permitted to broadcast - whether Division had jurisdiction to make decision embodied in Standard - whether Division empowered under terms of original appointment or otherwise to make decision - whether Division authorised under s. 15C of Broadcasting Act 1942 to determine standards in accordance with para. 16(1)(d) - whether Tribunal may determine binding standards otherwise than by making orders under s. 17 of Broadcasting Act.
Broadcasting Act 1942
Broadcasting and Television Legislation Amendment Act 1985
Administrative Decisions (Judicial Review) Act 1977
Australian Broadcasting Tribunal (Inquiries) Regulations 1986
Herald-Sun TV Proprietary Limited v Australian Broadcasting Tribunal (1985) 156 CLR 1
Australian Broadcasting Tribunal v Bond (1988) 19 FCR 259
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Commercial Radio Coffs Harbour Limited v Fuller (1986) 161 CLR 47
Director-General of Social Services v Chaney (1980) 47 FLR 80
Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSW LR 491
HEARING
SYDNEY
#DATE 24:6:1992
Counsel and Solicitors for the Applicant
in proceeding NG 145 of 1992: Mr Alan Robertson instructed
by Blake Dawson Waldron
Counsel and Solicitors for the Applicant
in proceeding NG 154 of 1992: Mr J. Spigelman QC and
Mr M.J. Slattery instructed by Mallesons Stephen Jaques
Counsel and Solicitors for the first
Respondent in both proceedings: Mr Paul Roberts and Mr M. Minehan
instructed by the Australian Government Solicitor
Counsel and Solicitors for the Second
Respondent in both proceedings: Mr D.K. Catterns intructed by
Ms M. McAuslan
ORDER
The proceedings be stood over to a date to be fixed for the making of orders, to give effect to the reasons for judgment delivered 24 June 1992.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
Introduction
In sub-s. 4(1) of the Broadcasting Act 1942 ("the Act") the expression "the Tribunal" is defined as meaning the Australian Broadcasting Tribunal ("the ABT") constituted under the Act. The ABT is the first respondent in both applications. Paragraph 16(1)(d) of the Act states that one of the functions of the ABT is:
(d) by instrument in writing, to determine the standards to be observed by licensees in respect of the broadcasting of programs and in respect of programs to be broadcast. (Emphasis supplied).
"Standard" includes "condition": sub-s. 16(7).
The words emphasised did not appear as the Act stood when considered in Herald-Sun TV Proprietary Limited v Australian Broadcasting Tribunal (1985) 156 CLR 1. Nor did sub-s. 16(4). This states that nothing in the Act shall be taken, by implication, to limit the function of the ABT under para. 16(1)(d). These changes were made by the Broadcasting and Television Legislation Amendment Act 1985 ("the 1985 Act"), s.6. Section 8 of the 1985 Act also introduced sub-s. 99(1A). This statute also amended, by s. 15, s. 132. I refer later to these provisions. The immediate point is that they indicate that observations by the High Court in the above case as to the structure of the enforcement provisions of the Act (supra at 5), cannot be applied directly to the present structure.
Another function of the ABT is to hold inquiries as provided by, inter alia, s. 17C, and "to publish reports in relation to those inquiries". Paragraph 16(1)(g) so states. Section 15C provides that the Chairman of the ABT "may constitute a Division of the Tribunal for the purposes of an inquiry ... ". The ABT may, either generally or as otherwise provided by the instrument of delegation, by writing under its common seal, delegate to a member any of its powers under the Act, other than that power of delegation and the ABT's power to hold inquiries: s. 15D. It will be necessary later in these reasons to refer more fully to those and other provisions of the Act.
On 24 February 1992 two members of the ABT executed a document ("the Standard") headed:
"Commonwealth of Australia Broadcasting Act 1942 Australian Broadcasting Tribunal Television Program Standard 25 - Advertising and Promotion Time"
The operative part of the document read as follows:
"We, members of the Australian Broadcasting Tribunal, make the following Program Standard under paragraph 16(1)(d) of the Broadcasting Act 1942."
There is set out thereunder a 4 page document containing in 9 paragraphs the text of the Standard. It is stated to commence on 1 March 1992 and to have the objective of limiting the amount of non-program matter that the licensee of a television station is permitted to broadcast. The document embodying the Standard was accompanied by a lengthy statement by the same two persons headed "Decision and Reasons", in which, inter alia, the background to and conduct of their inquiry into advertising time on television was discussed.
The applicants in each proceeding seek an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") in respect of the decision embodied in the Standard. They also seek an order of review under the ADJR Act of the conduct of the ABT for the purpose of making the decision embodied in the Standard.
Each of the applicants is the holder of a commercial television licence granted under s. 81 of the Act, and asserts that its business will suffer material injury by reason of the implementation of the Standard. The second respondent ("the Centre") is a company limited by guarantee. It was granted "party status" before the inquiry by the ABT which led to the making of the Standard. I granted applications in each matter for the Centre to be joined as second respondent, but on terms that it sought no costs order in its favour and that it accepts such other terms as may be imposed upon it in the course of the proceedings from time to time. Counsel for the Centre assisted the Court with submissions in support of the stance taken by the ABT upon the immediate issues the subject of this judgment.
In each matter, pursuant to O. 29, I ordered three issues to be tried together and on a final basis but separately from the remaining issues. The issues, which to degree overlap, are in the following terms:-
1. Whether the Division of the ABT which made the decision embodied
in the Standard did not have jurisdiction to make it because the Division was not empowered under the terms of its original appointment or otherwise to make the decision.
2. Whether the Division of the ABT which purported to make the
decision embodied in the Standard did not have jurisdiction to make it because a Division of the ABT is not authorised under s. 15C of the Act to determine standards in accordance with para. 16(1)(d) of the Act.
3. Whether the Act authorizes the ABT to determine standards which
are automatically binding upon all licensees, only by the ABT making orders to that effect in accordance with procedures set out in s. 17 of the Act, being procedures not followed in this case.
The Third Issue
I turn first to consider the third issue.
It is now common ground that the Standard is and is expressed to be "binding" on all commercial television licence holders from 1 March 1992 and that the Standard was not intended to be a general policy document. But much turns upon what in this context is meant by "binding". To answer that question it is necessary to refer to a complex of provisions in the Act. I have referred to the significant changes introduced by the 1985 Act.
The applicants submit that an order under sub-s. 17(1) is necessary and has not been made by the ABT. It is true that sub-s. 17(1) is in general terms. It states:
"17(1) For the purpose of exercising its powers and
functions under this Act, the Tribunal shall have power to make such orders, give such directions and do all such other things as it thinks fit."
This provision has a long history. It was introduced (referring then to the Australian Broadcasting Control Board) by the Australian Broadcasting Act 1948, s. 6. But the Act has since been drastically amended from time to time and the general words of s. 17 are to be read with those changes. See Australian Broadcasting Tribunal v Bond (1988) 19 FCR 259 at 283-4.
The Act as it stands after the 1985 Act and subsequent legislation is so drawn as to distinguish between "orders" made by the ABT and requirements which may be imposed upon licensees by other means. The ABT is given as two of its functions the determining "by order" of guidelines for the purposes of the Political Broadcasts provisions of Part IIID: see paras. 16(1)(ca), (cb). Paragraph 16(1)(d), in dealing with program standards is in different terms, speaks of determination of standards "by instrument in writing". Powers to make "orders" are also conferred by s. 92V (remote licences) and s. 92VA (limited licences). All of these provisions as to "orders" were introduced by further legislation after the 1985 Act. Such orders must be in writing, may be disallowed by either House of the Parliament, "have the force of law", and shall not be contravened by any person to whom they are applicable. Section 17 so provides. Further, by virtue of s. 132, a person who contravenes the prescription of s. 17 in relation to an order is guilty of an offence against the Act.
But, in my view, program standards are implemented by a different regime. Subsection 99(1A) states:
"A licensee shall supervise the broadcasting of the licensee's programs in such manner as to ensure that the program standards are complied with."
Contravention of sub-s. 99(1A) is in terms excluded from the operation of s. 132. The effect of that exclusion of sub-s. 99(1A) is to put outside the criminal law the obligation of licensees to ensure compliance with program standards. Control over observance of these standards primarily is exercised by what Counsel for the Centre described as the disciplinary function of the ABT in relation to revocation and refusals to renew licenses. It is now appropriate to turn to further statutory provisions.
A licensee shall provide programs, and may provide programs being advertisements (sub-s. 99(1)). The ABT has power to determine program standards and to conduct inquiries in relation to the determination of program standards: sub-s. 15C(11), para. 16(1)(d), para. 17A(2)(a). In addition to sub-s. 99(1A), sub-s. 99(2) provides:
"The Tribunal may give directions to a licensee for the purpose of ensuring that the program standards are complied with in relation to the broadcasting of programs by the licensee and in relation to the programs to be broadcast by the licensee, and the licensee shall comply with any such directions."
Where a licensee has contravened sub-s. 99(1A) the ABT may issue to the licensee in writing a reprimand or admonishment and may direct the licensee in writing to publish that reprimand or admonishment (s. 101). Section 119 empowers the ABT by direction to prohibit or restrict presentation of live broadcasts by persons whose past broadcasts have not complied with program standards. Subsection 119(3) states that such a person "shall not contravene" a direction by the ABT under s. 119. Such contravention would appear to be an offence under s. 132. See, generally, Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70.
Every licence granted under the Act is subject to the provisions of the Act and the regulations so far as they are applicable to the licence; those provisions are deemed to be incorporated in the licence as terms and conditions of it: ss. 129, 84(3), Commercial Radio Coffs Harbour Limited v Fuller (1986) 161 CLR 47 at 54. During the currency of a licence the ABT may by notice in writing to the licensee vary or revoke any of the conditions of the licence (other than conditions applicable by virtue of s. 129) or impose further conditions (s. 85). The ABT may suspend or revoke a commercial licence if it appears to it that it is advisable in the public interest to do so having regard only to enumerated matters and circumstances, including the ABT being satisfied that a condition of the licence has not been complied with (para. 88(2)(c)). Further the ABT shall refuse to renew a commercial licence if it appears to the Tribunal that it is advisable in the public interest to refuse to renew the licence, having regard only to the matters and circumstances set out in sub-s. 86AA(4). These include, in para. (c), the satisfaction of the ABT that a condition of the licence has not been complied with.
Paragraphs 5, 6 and 9 of the Standard state that a licensee "must not" transmit certain matter. Counsel for the applicants submitted that the Standard was not a statement of general policy and purported to be and was intended to be "immediately binding upon all licensees". So much may be conceded, but allowing for the imprecise meaning of the term "binding". Counsel then submitted that para. 16(1)(d) "is not a legislative power enabling the ABT to promulgate legally binding rules" on "all licensees or any particular licensee." It was then submitted that the power was exercised for an improper purpose because the ABT mistakenly believed that "it could immediately bind all licensees."
I do not accept these submissions. References to "legislative power" and "legally binding rules" serve to obscure the nature of the provisions under which the ABT operated. The licensees were not bound forthwith by the Standard in the direct Austinian sense of subjection to a legal command contravention of which was attended by the immediate sanction of criminal liability imposed by s. 132. Nevertheless, the licensees were subjected to a tie or restraint imposed, not by a consensual covenant arising under the law of contract, but by the requirement of sub-s. 99(1A) that they ensure compliance with program standards, a requirement translated by s. 129 into a condition of their licences. Steps to ensure compliance with program standards might then in given cases be taken by the ABT pursuant to provisions such as sub-s. 99(2), 101 and 119.
And if a licence were suspended, revoked, or not renewed (pursuant to the provisions I have earlier described) the licensee would lose its licence warrant (sub-s. 89D(5)) and commit an offence if it nevertheless continued transmissions (s. 6A); see Commercial Radio Coffs Harbour Limited v Fuller supra at 53. In this sense the Standard is "binding" upon licensees, without any order first having been made under s. 17. There was no exercise of power by the ABT for any improper purpose.
The construction of the Act in its present form which I have endeavoured to set out in the preceding paragraphs involves the proposition that despite its general terms, sub-s. 17(1) does not authorise the giving of effect to determinations of program standards by "orders" to which s. 132 applies. Rather, the relevant legal norm is found in the obligations imposed upon licensees particularly by sub-s. 99(1A). If that construction be incorrect and s. 17(1) still relevantly applies, so that an order may be made by the ABT in respect of a program standard, nevertheless that would still not be an essential step before the standard was rendered "binding". That is the effect of the other provisions I have described.
The third issue should be resolved favourably to the ABT.
In performing its function under para. 16(1)(d) to determine standards, the ABT is obliged to consult representatives of licensees: sub-s. 16(2). It may, in a given case, fall short of adequate consultation. But any such issues in the present proceedings have not yet been heard by me.
The Second IssueI turn to consider the second issue. This concerns the authority of a Division to act, as happened in the present instance, in the place of the full membership of the ABT.
It is necessary first to refer to further provisions of the Act. Division 1 of Part II is headed "Establishment and Constitution of the Tribunal" and includes ss. 7-15F. The ABT is established as a body corporate and judicial notice is to be taken of its common seal with the presumption that it was duly affixed (s. 7). The ABT shall consist of a Chairman or Vice-Chairman and no more than six other members (s. 8). The ABT is to hold such meetings as are necessary for the performance of its functions, the Chairman is to preside, if present, and a quorum is consisted by a majority of the members for the time being in office (s. 15B).
Section 15C deals with Divisions of the ABT. So far as is relevant it provides:
"15C.(1) The Chairman of the Tribunal may constitute a Division of the Tribunal for the purposes of an inquiry ...
(1A) ...
(1B) Subject to the operation of subsection (11), a Division of the Tribunal constituted under subsection (1) shall, for the purposes of holding the inquiry in relation to which it was constituted and for the purposes of making decisions, recommendations and reports on the matter the subject of the inquiry, be deemed to be the Tribunal.
(2) ...
(3) ...
(4) ...
(5) ...
(6) ...
(7) ...
(8) ...
(9) ...
(10) ...
(11) In relation to:
(a) an inquiry held under subsection 18(2) or section 18A; or
(b) an inquiry in relation to the determination of program standards;
the Chairman may, if he is satisfied that it is necessary or desirable so to do, direct that a decision, recommendation or report in relation to the matter the subject of the inquiry be made by the Tribunal and not by the Division that was constituted for the purposes of the inquiry."
Section 15D deals with delegations by the Tribunal. It states:
"15D.(1) The Tribunal may, either generally or as otherwise provided by the instrument of delegation, by writing under its common seal, delegate to a member any of its powers under this Act, other than this power of delegation and its power to hold inquiries.
(2) A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Tribunal.
(3) A delegation under this section does not prevent the exercise of a power by the Tribunal."
Finally, it is appropriate to refer to some provisions in Division 3, which is headed "Inquiries by the Tribunal". This division includes ss. 17A-25B. In s. 17A(1) the term "ordinary inquiry" is defined as meaning an inquiry under s. 17C. Section 17A also provides that a reference in Division 3 to a "substantive power" of the Tribunal is a reference to the powers listed in paras. 17A(2)(a)-(r). These include the power of the Tribunal to determine program standards (para. (a)), the power to grant or renew a licence under sub-s. 81(1) (para. (b)), certain powers of the Tribunal to vary, revoke or impose conditions of a licence under s. 85 (para. (c)) and to suspend or revoke licences (para. (d)), the power to issue a reprimand or admonishment or to give a direction under s. 101 (para. (n)); see generally, the discussion in Australian Broadcasting Tribunal v Bond supra at 272-8 per Lockhart J., 281-2, per Wilcox J..
Section 17C so far as immediately relevant provides:
"17C.(1) Where the Tribunal receives an application under this Act requesting the exercise of any of its substantive powers, or proposes to exercise any of its substantive powers otherwise than on such an application, the Tribunal shall hold an inquiry into the requested or proposed exercise of the power.
(2) Where the Tribunal proposes, either on its own initiative or at the request of any person, to exercise any of its powers, other than a substantive power, under this Act or the regulations, the Tribunal may in its discretion hold an inquiry into the proposed exercise of the power.
(3) ...
(4) ...
(5) Subject to subsection (6), an inquiry under subsection
(1) shall be held in accordance with this Division and the regulations.
(6) ...
(6A) ...
(6B) ...
(7) ...
(8) Subject to this Division and to the regulations, the conduct of an inquiry under subsection (2) or (3) is within the discretion of the Tribunal."
Where the ABT has held an inquiry it shall give a report which, inter alia, sets out the decision or recommendations, if any, made by the ABT in consequence of its findings, and the reason for any decisions or recommendations (para. 25B(1)(e)). Section 22A provides for voting by members of the ABT as to the "decisions or recommendations" to be made upon the matters the subject of an inquiry.
By instrument signed by the Chairman and dated 16 October 1989 there was constituted the Division the members of which on 24 February 1992 determined the Standard. The document was headed "Notice of Division" and read:
"Pursuant to section 15C of the Broadcasting Act 1942, I Deirdre O'Connor designate Kim Wilson and Sue Brooks, Members, to sit on a Division of the Tribunal for the purposes of conducting an inquiry into the review of advertising time on television over the last two years."
The document of 24 February 1992 which introduced the Standard was executed by these two persons who described themselves on its face as "members of the Australian Broadcasting Tribunal". The text is further set out earlier in these reasons. Counsel for the applicants pointed to the absence of any additional recitation in the instrument that the signatories constituted a Division of the ABT. As I have indicated earlier in these reasons, the Standard was accompanied by a 28 page paper headed "Review of Advertising Time on Television" and "Decision and Reasons". This also was signed by the same persons. The portion headed "Summary of Decision" gives an explanation of the operation of the Standard and is introduced by the words:
"The Tribunal has now concluded its Inquiry to Review Advertising Time on Television ... we have decided that a Program Standard limiting the amount of non-program content per clock hour is to be introduced, effective 1 March 1992."
In this context it is plain that the two members were acting as the Division of the ABT, constituted by the Chairman on 16 October 1989, whose decisions, recommendations and reports would be deemed by sub-s. 15C(1B) to be those of the ABT.
Counsel for the applicants submits that the Standard is not a "decision" on the subject matter of inquiry in relation to which the Division is deemed by sub-s. 15C(1B) to be the ABT. They submit that a "decision" within the meaning of sub-s. 15C(1B) is provisional or advisory in character and does not include a final substantive step, whereas that is what is involved in a "determination" for para. 16(1)(d) of the Act. I was referred to various authorities discussing the various senses in which "decision" may be used in legislation. They included Director-General of Social Services v Chaney (1980) 47 FLR 80 at 100, and Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSW LR 491 at 501.
Counsel for the applicants pointed to the width of the power of delegation in s. 15D and the exclusion from it of the power of the ABT to hold inquiries, and submitted that s. 15C should not be construed to cover the same ground. However, that submission somewhat misstates the relationship between these two sections. It will be observed that ss. 15C and 15D are directed to different ends. Section 15D reposes in the ABT a power of delegation. Section 15C reposes a power in the Chairman. A power when exercised by a delegate shall be deemed to have been exercised by the ABT, but the existence of the delegation does not exclude the exercise of power by the ABT (sub-s. 15D(3)). And the power to hold inquiries may not be delegated by the ABT. On the other hand, a Division is constituted by the Chairman for the purposes of an inquiry. The use of the members of the ABT in this way may appear to the Chairman to be the best use of the resources of the ABT. In performing relevant acts the Division is deemed to be the ABT itself. Further, and this will become significant for the first issue, in my view the constitution of a Division for an inquiry carries with it the carriage of that inquiry throughout its course, including the determination of new issues pursuant to the regulations.
The phrase in sub-s. 15C(1B) "making decisions, recommendations and reports ..." (and the corresponding phrase in sub-s. 15C(11)) was said by counsel for the applicants to be limited, with the result that the Division which issued the Standard lacked the power to "determine" program standards within the meaning of para. 16(1)(d).
That submission, which presents the second issue, should not be accepted.
The term "decisions" appears not only in sub-s. 15C(1B), (11). It appears also in s. 22A when dealing with voting as to decisions to be made on matters the subject of an inquiry, and in s. 25B, in dealing with the contents of reports by the ABT on inquiries.
If in the relevant phrase in sub-s. 15C(1B) "decisions" did not embrace determinations of program standards because the term "decisions" was too weak to include a determination, then it would be difficult to see why it appeared in sub-s. 15C(1B) as the first of three terms, in descending order of strength, "decisions, recommendations and reports ...".
Sub-section 16(1) specifies a range of functions which are identified by various verbs of a dispositive character. They include "grant, renew, suspend, revoke and accept the surrender of ...", "authorize" and "determine". As I have indicated, the requirements in ss. 17A and 17C as to the holding of inquiries into the exercise of the substantive powers of the ABT are expressed in similar fashion.
I accept the submission for the respondents that a Division may accurately be described as making a decision within the meaning of sub-s. 15C(1B) when by instrument in writing it determines a program standard and thereby exercises a function of the ABT under para. 16(1)(d). The word "decisions" in the phrase in sub-s. 15C(1B), "decisions, recommendations and reports" is used as a compendious means of identifying within the one word the range of activities covered by the terms to which I have referred as used in sub-s. 16(1) and s. 17A.
The First IssueI turn to the first issue. Again it is necessary to refer to additional provisions of the legislation.
Regulation 6 of the Australian Broadcasting Tribunal (Inquiries) Regulations 1986 ("the Regulations") provides for the creation by the ABT of inquiry files. Where the ABT proposes to exercise any of its substantive powers, otherwise than on an application, the ABT commences the inquiry by creating an inquiry file. This is provided for by sub-reg. 6(2) which also requires the ABT to place on that file a notice of the commencement of the inquiry and copies of all documents that the ABT intends to take into account for the purposes of the inquiry. This obligation is subject to qualifications, not presently material, in sub-regs. (6) and (7).
The Regulations contain notification provisions which are of considerable importance. Regulation 9 requires the ABT, in a case such as the present to publish a notice in accordance with sub-reg. (3) of the commencement of the inquiry. The notice shall be published "as soon as practicable but within 28 days after the commencement of the inquiry." Sub-regulation (3) states, so far as is relevant:
"(3) A notice under sub-regulation (1) of the commencement of an inquiry shall -
(a) ...
(b) specify the issues to be considered in the inquiry;
(c) specify the places where and times when copies of the inquiry file relating to the inquiry may be inspected by members of the public; and
(d) specify the day on or before which interested persons may make submissions to the Tribunal in relation to the inquiry, being a day not earlier than 42 days after the day on which the notice is published in the Gazette."
At a meeting on 11 October 1989, the ABT, in the terms of the relevant minute, "decided to initiate the inquiry into Advertising Time on Television and directed the General Manager to take the appropriate action." In my view these words are not to be construed, by some new branch of the parol evidence rule, without regard to the material before the ABT which led to the decision expressed in this way in the minute. The phrase in the minute "the inquiry" would, in any event, call for consideration of other materials to identify that to which reference was being made.
The Notice of Division to which I have referred, was then issued on 16 October 1989. In the Gazette for 8 November 1989 there appeared under the heading:-
AUSTRALIAN BROADCASTING TRIBUNAL
ADVERTISING TIME ON TELEVISION REVIEW
Notice of Inquiry
the following notice dated 31 October 1989:
"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 any of the specified criteria were manifest over the trial period;
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.
An Information Paper is available which outlines the background to this inquiry, the specific criteria to be assessed over the trial period, and details of the results of research undertaken by the Tribunal during the two year trial.
Submissions are invited from the public, television licensees, advertisers, advertising agencies and other interested parties."
Earlier, on 23 September 1987 the ABT had revoked a number of existing standards dealing with advertising and had published a review of advertising time standards under the heading "Advertising Time on Television". The ABT said in this document that the need to review the current rules which governed the length, number and placement of advertisements, program promotions and other non-program material on commercial television had long been recognised. An inquiry had been undertaken and the majority of the ABT had decided that the best way to deal with the matter was to have a two year trial period during which commercial television would have the opportunity to demonstrate its commitment to a better mix of advertisements and programs and to better research what viewers wanted in this area. The ABT said that "(a)t the end of the trial, the Tribunal will decide whether a new rule limiting the number of interruptions is needed, or whether a more competitive regime with better research into audience tastes requires any rules at all."
After further consideration, the ABT, on 18 March 1989, "endorsed" a written draft strategy for review of advertising time on television which set out a timetable to commence with the taking of steps indicative of an inquiry pursuant to sub-s. 17C(1), and providing as a distinct possibility for the introduction of new rules for program standards. The two year trial period was due to expire on 23 September 1989. At a meeting two days before that date, the ABT (i) decided to continue "with the existing regime of no advertising time rules until the conclusion of the proposed inquiry" and (ii) to initiate "the proposed Advertising Time on Television Inquiry" at its next meeting on 11 October 1989, after which advertisements would appear "in the normal time frame." The requirements of advertising in the regulations are concerned with "inquiries" which are identified in reg. 2 as those under sub-s. 17C(1), that is to say those involving the exercise of substantive powers.
At the meeting of the ABT of 11 October 1989 the decision was taken in the terms I have already set out.
The ABT is obliged by sub-s. 17C(1) to "hold an inquiry" where it "proposes to exercise any of its substantive powers". There must necessarily be a decision of the ABT from which the proposal springs. It would be unreal, as Lockhart J. pointed out in Australian Broadcasting Tribunal v Bond supra at 278, to confine to the terms of the minute of the meeting of 11 October 1989, the analysis of whether the decision from which the proposal stemmed included as a possible outcome the exercise of a "substantive" power. In the above case, his Honour had regard to the terms of the notice published in the Gazette and in a number of newspapers, following the relevant minute.
In my view having regard to the terms of the minute of 11 October 1989, and the decisions of the ABT of 18 March 1989 and 21 September 1989, together with the notice published on 8 November 1989, it is apparent that the inquiry which had been initiated was the product of a decision by the ABT having as a possible outcome the exercise of a substantive power, namely to determine program standards in relation to advertising time on television.
In the notice published 8 November 1989 the issues specified included whether the two year trial period which commenced in September 1987 could be regarded as having failed and if so what measures, if any, should be introduced and in what form and manner.
It may be that to afford the necessary procedural fairness to the licensees with whose representatives the ABT was bound to consult, by sub-s. 16(2) in performing its function under para. 16(1)(d), a more complete statement was required as to the introduction of a program standard which limited the amount of advertisements and program promotions which might be scheduled on television.
In all events, and after some time had elapsed, a "Notice of New Issues" was published on 4 September 1991.
It is necessary first to have regard to reg. 12 of the Regulations. This provides:
"12(1) Where the Tribunal is satisfied that the issues to be considered in an inquiry, as stated in the notice published under sub-regulation 9(1) in relation to the inquiry, should be changed, the Tribunal shall determine new issues to be considered in the inquiry.
(2) Where the Tribunal determines new issues to be considered in an inquiry, being issues that are substantially different to the issues stated in the notice published under sub-regulation 9(1) in relation to the inquiry, the Tribunal shall, subject to any direction by the Tribunal under sub-section 19(2) of the Act, as soon as practicable -
(a) give notice in writing to the parties to the inquiry of the new issues to be considered; and
(b) publish a notice setting out those new issues and specifying the day on or before which interested persons may make submissions to the Tribunal in relation to the inquiry, having regard to those new issues."
The notice published in the Gazette for 4 September 1991 was dated 29 August 1991. It was headed:
"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 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 5.00 p.m. on 23 September 1991.
. . . ."
Counsel referred to the terms of the Notice of Division of 16 October 1989 and to the identification therein of "an inquiry into the review of advertising time on television over the last two years". They submitted that the Standard was not a decision "on the matter the subject of the inquiry" within sub-s. 15C(1B). This was said to be because the subject matter of the inquiry was limited both in character ("the review") and time ("over the last two years"), such that the standard was not "on" this "matter" within the meaning of the sub-section.
I have already expressed my conclusions that a Division may make a "decision" within sub-s. 15C(1B) which includes a determination of a program standard, and that the constitution of a Division carries with it the making of decisions upon subject matter later specified as "new issues" pursuant to reg. 12.
Under the regime established by s. 15C the Chairman does not exercise the power of the ABT to hold an inquiry. What can be done by the Chairman is to constitute a Division "for the purposes of an inquiry" (emphasis supplied). The particular inquiry thus must be identified. Accordingly, it may be that a Division cannot be constituted merely in anticipation of the formulation by the ABT of the proposal to hold a particular inquiry. It is unnecessary to decide that point. Here, a decision had been taken by the ABT on 11 October. I have expressed my conclusion as to the nature of the inquiry so instituted. It would be quite unrealistic, and fail to read the instrument in its context if the Notice of Division of 16 October 1989 were construed as referring to any inquiry other than that initiated by the ABT 5 days earlier or as identifying anything less than the subject matter of that inquiry.
The first issue, in common with the other issues, should be decided favourably to the ABT.
ConclusionsThe question then arises as the appropriate step pursuant to O. 29 r. 4 to deal with each proceeding in the light of the conclusions I have reached.
In proceeding NG. 145 of 1992 grounds 8, 9 and 15 of the amended application filed 14 May 1992 should be struck out. The notices of motion by the applicant filed in Court on 4 and 14 May 1992 otherwise should be dismissed.
In proceeding NG. 154 of 1992 paras. (i), (ii) and (iii) of the particulars to the application filed 23 March 1992 should be struck out. The applicants' notices of motion filed in Court on 9 April 1992 and that filed 16 April 1992 otherwise should be dismissed.
These appear to me to be the appropriate orders, but I will first hear counsel upon them. I will also hear counsel upon costs. Each proceeding should stand over to a date to be fixed for the making of orders.
3
7
0