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Television Corporation Ltd v The Commonwealth

Television Corporation Ltd v The Commonwealth

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Case Copied 28 August 1963 36 min read

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HIGH COURT OF AUSTRALIA

Kitto, Taylor, Menzies, Windeyer and Owen JJ.

TELEVISION CORPORATION LTD. v. THE COMMONWEALTH

(1963) 109 CLR 59

28 August 1963

Statutory Powers

Statutory Powers—Television—Licence for commercial television station—Power in Minister to impose conditions—Validity—Certainty—Consistency with statute—"Obstruct, prejudice or interfere with . . . "—Broadcasting and Television Act 1942-1960 (No. 33 of 1942—No. 36 of 1960) (Cth), ss. 81, 86 (1), 105A, 108.

Decisions

August 28.
The following written judgments were delivered:-
KITTO J. In these cases there have been referred to the Full Court under s. 18 of the Judiciary Act 1903-1960 (Cth) certain questions which have arisen as a result of the giving by the Postmaster-General, the Minister administering the Broadcasting and Television Act 1942-1960 (Cth), of notices to two companies which hold commercial television station licences that he intends to impose as further conditions of the licences certain provisions set out in the notices. (at p69)

2. The licences, originally granted under s. 81 of the Act, have been extended under s. 85. The effect of the subsistence of such a licence is, by virtue of s. 81(2), that the establishment, erection, maintenance and use of a station in pursuance of the licence is not to be deemed to be in contravention of the Wireless Telegraphy Act 1905-1950 (Cth) or of the regulations under the Act. The Minister is authorized by s. 81(1) to grant such a licence upon such conditions as he determines, and he is empowered by s. 108(1) during the currency of a licence, by notice in writing to the licensee, to impose further conditions. He is required by s. 108(2) to give not less than fourteen days' notice in writing of his intention to impose a further condition, and to specify in the notice the condition to be imposed. It is in purported compliance with this requirement that the Minister has given the notices the subject of the present proceedings. The questions before us are principally directed to ascertaining whether, if the Minister purports to carry out the intention stated in the notice, the result will be the valid creation of further "conditions" of the licences. (at p69)

3. What, then, is essential for the validity of a condition which the Minister purports to impose upon a licence, either originally or by way of addition? Good faith on the part of the Minister is necessary: it is not here impugned. Consistency with the Act and relevance to its purposes are undoubtedly required, but I have not been able to see that the proposed further conditions are open to attack in either of these respects. There is, however, another requisite of validity, as I read the Act, and that is that the condition shall possess reasonable certainty of meaning and application. The reasons which seem to me to lead to this conclusion may be stated quite briefly. (at p69)

4. The conditions the Minister is authorized to impose are not conditions of forfeiture in the sense that upon breach the licence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1963] HCA 30
Decision Date: 28 August 1963

CaseChat Overview and Summary

Television Corporation Ltd and others (the appellants) brought an action against the Commonwealth of Australia (the respondent) seeking declarations that certain provisions of the Broadcasting and Television Act 1942 (Cth) (the Act) were invalid. The dispute concerned the validity of sections 116 and 117 of the Act, which imposed restrictions on the ownership and control of commercial television stations. The appellants, who held licences for commercial television stations, argued that these provisions were beyond the legislative power of the Commonwealth Parliament. The case was heard by the High Court of Australia.

The High Court was required to determine whether sections 116 and 117 of the Broadcasting and Television Act 1942 (Cth) were a valid exercise of the legislative power of the Commonwealth Parliament, specifically whether they were supported by the external affairs power or the corporations power. The appellants contended that these sections, by limiting the extent to which a person could hold shares in or control commercial television stations, infringed upon their proprietary rights and were not supported by any head of Commonwealth legislative power.

The Court, by majority, held that sections 116 and 117 of the Act were valid. The majority reasoned that the Commonwealth Parliament had the power to legislate with respect to broadcasting and television under the external affairs power, particularly in relation to international conventions and recommendations concerning broadcasting. Furthermore, the Court found that the provisions were also supported by the corporations power, as they regulated the activities of companies engaged in the business of operating commercial television stations. The legislation was seen as a legitimate means of ensuring diversity of ownership and control in the broadcasting industry, which was considered a matter of national importance.

The appeal was dismissed.

Orders