TVW Enterprises Ltd v Australian Broadcasting Tribunal & Ors TVW Enterprises Ltd v Australian Broadcasting Tribunal & Anor Swan Television and Radio Broadcasters Ltd v Australian Broadcasting Tribunal & Ors

BROADCASTING ANI? TELEVISION ACT - Declaratlcns - whether Australian Eroadcasting Tribunal fa;le< to perform its obligatlons under Act - whether TrlbuEal should have mace certaln material avallable for public Inspection - what constltutes "avallable for Fublic inspection" - whether Incpiry commenced wlthout jurisdlction - in~unctions.

Adminlztrative

- ludlclal review - decisions llmltinq scope

of inquiry and estent of

participation by incumbent l i censees

breach cf nztural justice - c t a t u t n r y ohligations - '-.- a lipe of inquiry - whether choice of vlzlon carrier and zznmerclal

vlabillty are outside the scope of lnquiry - questions of

p~bllc

xntcrest - ~1qht.s of ,ncdm5ent Ilcensees to particlpat~ in directing Incumbent ILcensees tc pr3duee doc,mentz - w?:et?rer

ir.qL,:ry.

meaning of d:rection was clear - whether the i'lrectlnn was

oppressive - quantity of documents to be produce6 - length of directing Incumbent licensees to produce documents - whether

time for which records requlred.

publicatlon should be restrlcted to a "need to know" basis - onus on incumbent llcensees to show some good reason for restricting publlcation - production of documents to "special interest"

2 .

parties - whether detriment outweighs the

publlc right and

interest in documents belng publlc. Broadcasting Tribunal to grant extension of time to lodge appllcatlon under Sroadcastlng and Televislon Act - unlimited power under s.3I! Z ) .

Broadcastina & Televlslon Act 1942 s.19,

2 2 , 25, R O ,

SOA, 3 2 , 83,

84, 86. 106A

Administrati-Je Declslons (Judicial Revlew! Act 1977 s.5

TVW ENTERPRISES LIkIl & AUSTPALIAN BROADCASTING TRIBUNAL .9ND

OTHEFC & T V 3 1 ENTERPRISES LIMITD & AUSTRALIAN EROACCASTING TPIBUNAL & PERTH TELEVISIqN LIMITED & SWAN TELEVISION AND RADIO BROADCASTEES LIMITED & AUSTRALIAN BROADCASTING TRIBUNAL & OTHERS

FORSTER J.

PEP.TI.I

26 JUNE 1985

THE COL~?TJD.I~ER._C THET:

Matter WAG 33 c t l 5 E h

The

appllcation

be dlsmlssed.

The time for

l d a i n g an

appeal

extended

and

2 .

M a t t e r WAG

36 of

1985

The

a p p l l c a t l o n 5e

d lzrn lszed .

2 .

The

a p p l l c a n t Fay

t h e

c o s t s

the

a p p l l c a t l o n t o

West

6 .

S .

Matter hlAG 4 2 of 1985

The d e c i s l o n

t he Australlan

Broadcastlng

Tribunal

f r equency

f o r

t h e

'3;

t h a t

gpon

the

14.

15.

J	Nos. W.A.G.33 to 59 of

GENERAL DIT7iE	1'125 and
Nos. W.A.G.41 to 43 of
1985

B E T W E E N:

TVW ENTERPRISES LIMITED

- and -

AUSTRALIAN BROADCASTING

TRIBUNAL AND OTHERS

Tvw ENTERPRISES LIMITED

- and -

N BROADCASTING

Aa.Ayv..-y AND PERTH TELEVISION

LIMITED

BROADCASTERS LIMITED

- and -

AUSTRALIAN BROADCASTING

TRIBUNAL AND OTHERS

par^

JUDGCVENT. 19 Jur7c.

1 9 s .

3 ~ s

,CP

~ I ? E - K ~ c?b:J-ne

198.5

REASONS FOR JUDGMENT

CGRAM: Forster, J.

There are and have been for some time two commercial

televrlalon stations broadcastlng to what may be described as the Perth metropolltan area. They are Operated by TVW Enterprises

Llmlted

( " T v w " )

and

Swan

Televislon

and

Radio

Broadcasters

On 15 Map 19.24 there aFpeared In ths Commonwealth of

Australia Gazerte ~l notlce iaL?d 7 Mdy 1984 publlshe6 by the

F1ni;ter rommunl:atluns ofpursuant to E . 9 3 of the - Broadcastinq and Televlslon Act ! "the A c t " ) lnlrltlnq appllcations for, or wrltterl submlsslons rel3tlnq to, tne grant of a llcence

for a commercial televlslon statlon to serve the

Perth

metropolltan televl5ion area.

The notlce contalned (inter alia)

an outline of

the speclflcatlons to w h c h it was proposed

that

the licence was to be sublect. Included in the speciflcatlons under the headlna "technical characterlstlcs" was "v1s1qn carrler

(VHF Channel 10

)

(UHF Channel 3 1 ) " .

Applications for the llcence were lodged wlth the Australlan Broadcastlng Trlbunal ("the Trlbunal") by a number of applicants and submlsslons were lndged wlth the Trlbunal by a number of interested bodies and persons. The remaining appllcants are West Coast Telecasters Llmlted ("Westcoast"), Perth Televislon Llmlted ("Perth"), sub~ect to objectlons whlch I deal wlth later and Western Televislon Limited ("Western"). Pursuant to s.33 of the Act the Tribunal on 12 December 1984 commenced to hold an inqulry into the granting of the llcence. Appearances were taken and applicatlons to appear were made. The Trlbunal lssued directlons as to the hearlng on 18 December

1934 and on 24 DecemLer 1984 tq whlch it wlll be necessary to

refer later. The hearlna commenced on 5 February 1985 and has

4s a result of thlnqs which happened or which dld not

happen and 3 s a rezult of directions given In the course of the lnqulry ten separate proceedlngs were commenced in this Court and pursuant to an order of Toohey J. made 15 April 1595 all ten matters were heard together. Three were ordered to be heard

concurrently and wlth priority to the other

matters which

were

ordered to be heard

consecutively except f o r one which was

ordered to be heard last. During the hearlng I announced declsions with respect to two of the matters and said that I

would qlve wrltten

reasons later and those reasons will be

included in this judgment.

It 15, I think, important that I do not intrude into matters which are properly the concern of the Trlbunal or of the Minlster and confine myself strictly to deciding the matters properly before me.

The hearing of matters number W.A.G.36 and W.A.G.35

and

W.A.G.38 commenced first In accordance with the order of Toohey

J . However when It had proceeded for a short tlme, for reasons

wlth whlch I will deal later, this hearing was postponed and the

hearing of W.A.G.33 was embarked upon. Thereafter the matters

Wl.35 - TVW ENTmFRISES LIMITED V. ATJFTUAN EiROAIjL'AZTIN(3

TRiBUNAL, WEST COAZT TELECASTERS LIMITED, PERTH TELEVISION

LIMITEEI

AND WESTEP~ELEVISION

LIMITS

thls

matter

TVW clalms a declaratlon that

the

Trlhunal falled to perform

Its obligatl.>ns under s . 8 2 ( 2 ) nf

the

Act; a declaratlon that the Tribunal has not made available for publlc lnspectlon, the names and addresses of all the persons who lodged applications for the grant of a further commercial

televlslon llcence; a declaration that

the

inqulry

the

Trlbunal commenced in and during December 1984 into the grant of a further commercial televlsjlon licence la) was commenced wlthout ~urisdlctlon and (h) is invalld, vold, and of no effect; and flnally, an 1n;unctlon (interlocutory and permanent) restraining the Trlbunal from proceeding further wlth the lnqulry. At the

end of the argument I dismissed all applications and said that	I
would glve reasons later which I now do.

Section 82 of the Act is as follows:-

"82.(1) Before a llcence 1s granted (otherwise than by way of renewal) the

Mlnister

shall

publlzh, m the Gazette and in a newspaper

or newspapers, lf

any, clrculatlng in the

area concerned, a notice -

!a) sett1r.u cut an outllne of the

speciflcatlons to whlch It 1 s proposed

the llcence 1 s to be sublect;

and

. .

A r-.dmker of appllcatlons f o r the propozed further commercial televlclon llcence 111 Perth were lodged lncludlng one by "Ferth Televlslon Llmlted [a company belng formed)". The address of thls applicant was stated as being c/- Peat, Marwick, Hitchell F4 Co. In Perth, a flrm of chartered accountants. The appllcatlon includes the names and addresses of all proposed directors and alternate directors of the proposed company and also of Its secretary. It 1s common ground that thls appllcatlon, together wlth the others to which no oblectlon 1s taken were made avallable for publlc Inspection at the Perth

offlce of the Tribunal.

The application In questlon contained a

great deal of other informatlon about the proposed company includlng a llst of the names and addresses of its proposed shareholders.

A company not yet incorporated has of course no

corporate or any other

existence and can do

nothing itself and In

partlcular cannot apply for a licence. Proceedings were taken before Toohey J. effectlvely to remove Perth Televlsion Llmlted from the llst of applicants for the llcence. HIS Honour

decllned to do thls and declded and in my respectful

oplnlon,

The Tribunal by press releases and otherwise notlfied

the

public of the

names cf the applicants Including Perth

Television Llmlted.

Thls was of course a mistake as at the tlme

the company had not yet been formed. The Tribunal was not obllged however to issue any press releases or other public announcements. Its obllgation pursuant to s . 8 2 ( 2 ) is to "make available for publlc lnspectlon the names and addresses of

persons lodging applicatlons".

It has been found that

the

appllcation in question was made by Pye on behalf of the sponsors of the company. A minute of a meetlng of sponsors of a proposed company attached to the appllcation records (Inter alia) that it

was resolved that the company apply to the Trlbunal for the third commercial television licence and that "each sponsor being a proposed member or shareholder" conflrmed the truth of the statements In the draft appllcatlon. Thls last phrase may mean elther that all sponsors were to be shareholders or that such of the sponsors as were Intended to become shareholders confirmed the truth of the statements. As a matter of Interpretation I conslder that it more probably means the former. It should be

r - .

It 1 s aruued by TTJGJ that

the

requlrement

to make

available th-2 names and addresses 1 s mandatcry and n o t dlrectory and that wlth respect to what I may for ease call Perth's

application it did not do this.

The argument goes on that the

requirement 1 s a mandatory precedent step to holdmg the inqulry and the requlrement not having been met wlth respect to Perth the lnqulry was commenced without ~urlsdlctlon and is lnvalld, void and of no effect.

The short answer to this argument 1s that In fact the Tribunal dld make avallable the name and address of Pye and the

fact that the

appllcatlon was on behalf of a company Perth

Television Llmlted f a company being formed). If, as 15 argued, the names and addresses of the sponsors should also have been made available for lnspectlon well they were so made available and a good deal more. I take the purpose of s . € l Z ( Z ) to be to enable persons interested to flnd out details of applicants for llcences s o that If they are so mlnded they may lodge written

submissions pursuant

to s.S2(1I(b)t11!, If they consider that

there is something about an applicant whlch ~ustlfles an

objection to the grant of a

llcence to a particular applicant.

not flnd I ~ I n=,zesz;it-y to declde whether the

requirement In z . 2 1 ! 2 ) 12

mandattnk-y or directory and I have

not

feund much asrlstance from vhat may be called the town

plannlng

rases.

I shouid however mFntion Zcurr v. Brlsbane City Council

(1977) 1 2 3 C.L.H. 242 whet-e the adequacy of an advertisement of a

notlce of applicatlon for town plannlng consent was in question.

Glbbs J. (as he then was1 at p.747 says -

"The submlsslon apparently was that s . 2 2 of the Act

would be satlsfled If an intendlng oblector could

eke out whatever meagre Information as to the

appllcation that the

advertisement mlght provlde

by makinq an Inspection of the appllcation in that way or by obtalnlng dlscovery after he had instituted an appeal ... the question whether particulars of the appllcatlon might be obtained in that way, or by means of discovery and

infipectlon after proceedlngs had

been

commenced,

1s qulte Irrelevant.

Section 22 of the Act

requlres that

the advertlsement itself

should

contain the necessary partlculars, and it is not

enough for the advertlsement merely

Inform

those Interested of the exlstence of an

appllcatlon the

partlculars of whlch might

obtalned from some other source."

An argument was mounted by the applicant based on this case that in the present case It was not good enough to say that the names and addresses of Pye and the shareholders can be ascertained by going through the appllcatlon and that even though no strlct form is requlred for the "maklng avallable", members of the publlc who are Interested to dc so should not have to search for the names and addresses. I re3ect thls argument. Scurr ' S

W.A.G.35 - TVW ENTERPRISES LIMITED V . AUSTRALIAN BROADCASTING

TRIBUNAL,

WEST

COAST

TELECASTERS LIMITED. PERTH

TELEVISION

LIMITED AND WESTERN TELEVISION LIMITED

W.A.G.37 - TVW ENTERPRISES LIMITEIj v. AUSTRALIAN BROADCASTING TRIBUNAL, WEST COAST TELECASTERS LIMITED, PERTH TELEVISION LIMITED AND WESTERN TELEVISION LIMITED

These two matters cover the same fleld, the first

seeks

declarations and

the

second

seeks a review pursuant to the

Admlnlstrative Ijeclsions (Judlclal Review) Act, both wlth respect qenerally to a rullng given by the Tribunal on 7 March 1785 and In partlcular the refusal of the Tribunal to permit TVW to cross-examine Ian Leslle H111, a technlcal wltness called by West Coast on a particular technical sub~ect. The ruling was ac follows -

'1 tL.S 'c!-:LlAL 3: L,: .-

~ : c l - ' - t - - :

:?.e !.li.r.I?:l.-.l;

x x t ~

~~,..

- - _... .

.. .

.. .-:t-t:.L'.-

- m "

' - . - c l - . -

185

Ir.11r

lE:!lLllt-:-

tT; TlhOZE F;t--lt?z

wh.1, ha:e

k e r n

71VEP

r -

le2r.e t , ~

Lme ~~presen:ed under sc.c+:orl

- a5

p e r z o n s caving

interest ~n

the

proceedings.

i n Lhe CrlLunai's view, wh:rh wa5 pk-eviousl;r

expressed In A rullng given on Mond2y li February, +hose FartleE whose Fartlclpatlcn was nor s ~ e c l f l c a l l y 11mlte.l In the wrltten rulln.3 which

we issued on l? De*cemhFr 1984. namely Swan, TVW

3nd TEN, should be conrlned to the relevant Issues addressed In thelt- written suhmlsslons lodged in response to the mlnlstrr's n'_ltlce.

Those submlsslons are certamly not plradlngs but

the tribunal conslders that I would be lmpractlcable and inconsistent with the orderly and exFedltlous conduct of the proceedings to allow partles to range beyond the issues which they have ralsed In a speclflc manner In thelr submlsslons without obtaining leave of the trlbunal. The tribunal does not regard paragraph 1013) of the TVW submisslon as ralslng any 15sues

In a speclflc way for the purpose of this rullng.

It 1s open to those parties to apply

the

tribunal for leave to pursue a particular point of speclal slgnlflcance to them should any such issue arise durlng the inquiry. The trlbunal reiterates that no such party 15 entitled to pursue all the Issues whlch may arise in this

lnqulry and the

trlbunal will not permit parties

contendlnq that no llcence should be granted to pursue the 155ue of whlch applicant for the licence 1 s most sultable, sublect to matters In

thelr submlsslons	deemed to be relevant to the
lnqulry.

The trlhunal will determine the relevance of the issues ralsed in submlsslons durlng the course of the proceedings and will, as stated agaln yesterday, exerclse its dlscretlon as to whether

it wlll be assisted In making a

thorough

investigatlon by

further evldence

cross-examlnatlon on a partlcular issue."

It w ~ l l , 1

r L l n x , Le

conv2nlent

to deal

wlth

t h e z e

matters at tt:e

_cage tlme 3:: kJ.-A.Z.35

and W.A.G.37.

All five

m,ittere concern the s c ~ ~ p e nf the 1nqulr:r and the r1,Thts of the Incumbent 1iccnsGes TVW and Swan to croc5-examlne wltnessez, call evldence and make cuhmlssions. These three matters concern directly dlr2ctlons glven by the Trlbunal on 3 Aprll 1485 In a lenqthy document contalnlng one hundred paragraphs. These directions fo l low rn and to zome extent amplify the directions given on 7 March 1585 whlch are complained of m W.A.G.35 and

W.A.Z.37.

There 1 s an issue which must he dealt wlth at the outset although In vlew of the orders whlch I propose to make its immediate relevance 1s conslderably dlmlnlshed.

Arqument t2ck plsice before the Trlbunal on i'i March 1985 as to the extent of the rlqhts generally of the Incumbents to

Farticlnate 1 r i the 1nqulr;r.

'In 2 5 Plarch 1585 the TulLunal

ser~t

a te lex tu the agentc of L&

appllc3nts, the Incumbents an<

some

of the spec131 interezt partles call1r.q f o r further

cubmir;slons

. i l

. c - ' . - . . ,A

- d

, ' ._

_ , P ,

I 1.- .

I - "

.L:z

::.,::-c,<

L,, . i , . ,L+

?'.,e

l'r ;l~~~nal

c y , e r l I L ~ A :

l r l t ?

i C %.rc!-..

'TL-.

a c p r : ' .

F C ~ L T1.W

_c,nt

telex on 23 Mdwh

192.5 to the T r l i j u n a l seeklnq clzrlflcatlcmn

~ t z

tEler OL 15 P!arch.

The Trlbundl repllerl to thlz telex h-- a

telex of the same date ,ciarlfying ;ts earller telex and

gl-,Ting

T1JL-J an extension 82f time dntll 1 hprll 1985 wlthln whlch tJ put

l r l lts submlsslon. TVW duly pu: In its submlsslon and ln the

same ,document submltted that the

wrlttcn submlsslons of

partles

should be exchanged and the

submissions

should be argued In

open hearlng. Thls request of TVW was either refused or Ignored because the submlssions were not exchanged through the Tribunal and the dlrectlon of 3 April 1985 was handed down wlthout any further hearlng on the matter elther publlc or prlvate. The submisslons of other partles were not made avallable to TVW until

TVW obtalned them for the purposes of these proceedings.

1 s

argued

that

for the Trlbunal

recelve

submlsslons In thls way wlthout ensurlng that they were seen by Tvw Involved breaches of ss.19 and 25 of the Act and also of the requlrements of s.BOA that the Trlbunal act fairly and impartlally and observe the rules of natural ~ustlce. Section 1?(1) requlres that the proceedlngs before the Trlbunal at an lnqulry be publlc and s.19(3) (inter alia) requires that the contents of documents lodged with the Tribunal should be made avallable to the publlc and to all persons havlng an rnterest in

the proceedlngs.

Sectlon 25(3) requires (inter alia) that the

Trlbunal shall ensut-e that an interested person has a reasonable

S l n c c

! : r ' ~ ~ c , " e

L C revitex tl;e declslons

of the Trlhunal

made I n the rlolrrs? uf the directlnn of 3 4prll : '3?5 s o far a5 I

have been a s k d tg do scs by TVW and Swan the polnt is perhaps of

acndelric interezt w ~ l y but I th ink it is nrcrzsary that I should polnt out to the Trlbunal the lmproprlety of Its actlons In the matter of the calllng for further submlsslons. There 1 s of course nothing the matter wlth calllng for further submisslons itself but the Tribunal should have dlrected the partles to serve coples of thelr submlssions on the other partles and should have made an opportunlty f o r oral submissions to be made In answer to

the written submissions.

This aspect of the proceedings before

the commsslon was the reverse of public and to receive submissions which m'ight be contrary to the submlssions of another party wlthout glvlng that other party an opportunity to know the contents and make counter submisslons seems to me a clear breach

of the duty to act fairly and to observe the rules of natural

JUCtlCP.

I do not need to declde whether or not what I have found

to be lmproprlety would wlthout more and justify the quashing of those parts of the dlrectlon of 3 Aprll whlch are complained of because they fall on the merlts. I think however that In its natural and proper anxlety to get on wlth the Inquiry and avold

W.A.G.41 1s an appllcatlon by Swan ,Ander the Ldxlnlstratlve Declslons iJudirial Review; Act to revlew a number of the declslons made In the dlrectlons of 3 Aprll 1985 on the Trounds -

!l)

that the Tribunal falleqd to take relevant consideratlons

into account

( 2 )

that the Tribunal Improperly exercised its pclwers under the Act In refuslng to allow Swan to lead evidence, cross-examlne wltnesses and make submissions on certaln matters

! 3 )

that each of

the

declslons In (1) involve an error of

( 4 )

that in exerclsing its power to make the declslons

that

the commerclal viabillty of proposed stations 1 s not a relevant Issue the Tribunal falled to take Into account certaln t-elevant conslderatlons

( 5 )

that In refuslng to aliow Swan to lead evidence, cross-examine wltnesses and make suhmissions wlth respect to the cornmerclal vlabillty of the proposed

station, the Trlbunal improperly exercised ~ t s

power

+ - -

t !

.:at *-=,C.?, - c ...c

,-=,:':l

- :

: . .

.L*81:Y-: -.l- ::ue

1,: -:L=

,:c~~.me+-:la:

- r l qkillt:;

7i +hp pro[:o;-.rl

z t L * t l , ~ n

~nc;l;-e.d an

'SE r c r C I ~ lxw

3rd

1 7 )

khat the

'Tt-Lounal 'F

r E f . & A l

t r

allrmw

Swan

t o

li.ad

evldsni 'c ant1

~ ~ - o s s - e x a n l n e ather

t t a n

llmlted

extent cn thc I S ~ U E C of the conslderatlon by

applicant of

the

tlnanclal, t e c h n l c a l

and

management

lmpllcatlcns whlch flow fcom the rcholce of frequency

v l 5 l o n carrler and

whether an applicant ha5

flnanclal,

technlcal and manaaement capabllltles effectlvely to operate the station and that the Trlbunal's declsion

that Swan as an incumbent 15 not entltled to test or

contravert evidence qlven by applicants In support of

their claims to comply with ~.83(6)(c)(ili) of the Act

were an lmproper exercise of the Trlbunal's power under

the Act because it failed to observe the rules of

natural justice. and the provls1ons of s.25(3) and s.80A

of the Act.

W.A.G.42 is an

pplication

by TVW under

the

Admlnistratlve Dec~sions (Judlclal Review) Act seeklng review of a number of decisions made In the course of the directions of 3 Aprll 1985 on the grounds -

(1)	that each of the declslons involved a breach of the
rules of natural Justice
( 2 )	that the procedures that were requlred by law to be observed In connection with the maklng of the declsions

? + < l - r ' .

.:-.I)

.I-

;I -- '- "; .-

, I

t.t,At s3ch ,c<

.:-,e i E . : 1 Z 1 7 n s

'.;A:

11,;t

d~L,thorlSed

by !!:e Act

that 'Lk-2 m a k l r l t ? 8-81

\?.e ieclzlonz 17, Eacn of them was

Inproper %:<e~-r~:e

-.f rhe

p@-,;e:- - .oi~ferred

by t h ~

Art

that ~n e r c r c i s l n g ,ts

power ro make the said

declslonz

and each cf them the Tribunal -

'a)

t r o v .

Lrreltvank corl-cilerations Into account

(b) falled to take relevant consideratlons into acc2unt. That the declslonr and each of them Involved and

constituted an exerclse of power s o unreasonable that no

reasonable person could have so exerclsed the power

that each of the decisions lnvolved an error of law

that there was no evidence or other materlal to ~ustify

the maklng of the declslons and

that each of the decisions was contrary to law.

W.A.G.43

1 s an

appllcation to

the

Court

seeklng

declaratlons cover~ng	substantlally the same matters as are dealt
wlth in W.A.G.42.

Two fundamental quest~ons form the basis of the

questions to be declded In these flve matters, namely the scope of the Inquiry Into the proposed grant of a commercial televlsion llcence and the llmlts, If any, of the rlghts of the Incumbent

licensees TVW and Cxan to partlcipate in the

lnqulry

cross-examlnlng wltnerses, caillng

evldense

and

maklng

submls;lons.

Ilnce these questions are anzwered the salution

Sestlon 25 of the Act 1 s 3 s follows -

I ,

L A (11 The Trlbunal shall,

without reqard to legal

forms and solemnities, make a thorouqh lnvestigatlon Into all matters relevant to

an rnqulry under this

Dlvlsion,

and may

qlve all such dlrections and do all such things as the Trlbunal considers are necessary or expedlent for the expeditious and lust hearlng of the Inqulry.

' 2 ) The Trlbunal 1s not bound by legal rules of

evidence

and

may

inform

Itself

on any

matter In such

manner as It thlnks fit.

( 3 ) Sub~ect	to section 19, the Tribunal shall ensure that every person having an interest 1n proceedings before the Tribunal at an lnqulry is given a reasonable opportunity to present his case and, In particular, to Inspect any documents to whlch the Tribunal proposes to have regard In reaching a declsion In the proceedings and to make
submissions in relatlon to those
documents.

Thls does not asslst much in the resolution of the flrst questlon when ~t speaks of "all matters" relevant to an Inquiry under thls dlvlslon, but It is of asslstance in resolvlng the second questlon when It requlres a "thorough Investlqation". It 1s necessary to l-rok elsewhere to determine what matters are

The portlons of s.83 relevant to the argument concerning these two issues are as follows -

" 8 3 (l! As soon as practicable after the expiration

of the period

referred to In sub-section

8 2 t 4 j or 8 2 A ( 1 3 ! , as the case requlres the

Tribunal shall, sublect to sub-sectlon ( 2 ) , hold an Inquiry Into the grant of the licence.

( 3 ) The Trlbunal shall,

at the Inquiry or In

Its conslderatlon of the application, as the case may be, have regard to any submissions, and to any replles or reply,

lodged in accordance with section 82 or

BZA, a6 the case requlres.

( 4 ) ...

( 5 ) An appllcant for a licence shall, at the lnqulry into the urant of the licence, or, if the Trlbunal, In accordance with sub-sectlon t Z ) , conslders the appllcation wlthout holding an lnqulry, before the conslderatlon by the Trlbunal, give an undertaking m wrltlng to the Tribunal that

'ne wlll, If the llcence is granted to hlm -

(a)	comply with the condltlons of the llcence; and

' J

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I -

( 1 1 ;r.rovldc

ari

3de,qba:?

m d

comprehonslve F C I - V I ~ ~

In Eursuance

m	the l l c e n c e , having recard to -

( A )

the nature

of the community

to be servcd i n pursuance	r,f
the l l r ? r ~ e ;

(B) the diversity of the

Interests cmf that community;

and

\ ):8 the nature of the other

broadcastlng and television seL-vlces ! ~ f any) of whlch

satlsfactory

reception

belng obtalned

that

communlty; and

(11) encourage the

provlslon

programs wholly or substantlally produced in Australla and use, and encourage the use of, Australlan creative resources In and in connectlon wlth the provlsion of programs.

( 6 )

The Trlbunal shall not refuse to grant a

llcence to a person unless It has held an inquiry lnto the grant of the licence and -

(a)	the person has falled to glve an undertaklng In accordance WI th sub-sectlon ( 5 ) ;

(b) the Tribunal 1s

satisfied

that

the

grant of the llcence would	be contrary
to a provislon of thls Act;

I;.,?C!:L!T

;

I~IG

Tr L L ~ ~ n a : , ~ L S T : I ~ L ;

rqa:-d ?.?iy -.#L ':.? ::ml:,-mi?~ rsttek-5 ,L- mr:!-:-d~?t~nrs?s, !.h;rt :t 1; advlzsble

L,: L h c

pujilc Inter-est to rc fuse

c.:rlnr

thi. I l c e n r z t o th? perscr.:

' 1;

Lt i~ no.-, satlsizrd that the

Fet-SUrl -

( A I 15 I f l t

and pt-oi;ec

person

to hold t h e llccnce;

I E) has the flnanclal, technlcai and management sapabllitlez necessary effectlvely to operate the relevant broadcastlng statlon or television station, as the case may be; and

CC) 1s otherwlse capable of

ccjmplylng

with

the

condltlons of the licence;

!ii) where -

( A ! the licence is a

commercial

licence (other than a licence for a metropolltan

commerclal

broadcastlng

statlon as def

lned

sub-section 9 0 ( 1 ) or a llcence referred to In paragraph 92(l)(c)) or a supplementary licence; and

(B) in the opinlon of the

Tribunal, m the area to be

served in pursuance of the

licence,

satisfactory

reception is being obtained of programs from one or more broadcasting or televislon stations operated by virtue of a llcence or llcences of a klnd to which

sub-sub-paragraph	( A )
applles,

I. -	X.-,:>-~ i

4 kL,:

:.e,:=

indue

,~2nce:-,tr~t;?n

in1

l!wr..-s,

. ,.LEL~L~~-

ilr,I-rr

=L-

;nd;r

~ c r , ,IF

Lhie perzor. and : m n

tne isxnpany

com[.,slnlcr-

h 1lin.T

thc

Jtker

ll,_ence

SI- ilcencpz;

I 1 1 1

1 iJhErr;, In the opinion of the

Tribunal, in the area to

?eraer: ln purzllsnce of the licence, saCisfact?l:l rocepLlnn

is being obtalned of proqrams

frcm cne or more broadcaatlng or televlslon statlons - the need for the conmerclal vlablllty of

that statlon or those ztations;

(d) It appears to the

Tribunal that a

licence of the klnd contemplated by the matters set out ;n a notice under paragraph B2(l)'a) or 92A(3)!a) or in a statement referred to in sub-section

B2A!63 should not be granted; ...

(7) ...

( B ) . . .

(9) Where there are 2 or more applicants for a llcence, each of whom is a person to whom, but for this sub-sectlon, the Tribunal would be required t o grant the licence, the Tribunal shall grant the licence to the most sultable applicant."

CHOICE OF FREQUENCY FOR VISION CARRIER

Sectlon B 4 ( 1 ) of the Act is as follows -

"84(1) After the provlslons of sertlon B3 have been complied with Ln relation to a licence, and before the grant of the llcence, the Minlster shall dete!rmlne the specificatlons appllcahle to the licence whlch, I n the case of a matter referred to in paragraph (a), f b ) , ! c ) or (d! of the definition of

'spec;€ication'

in sub-section 5 0 ( 1 ) ,

shall

he consistent wlth, o r substantially cons;strnt wlth the matters set out in a

It 15 p l n t e d

XI^ by t h ~

Trlbunal and cmlceded 5y

a11

partlez that Fursuanr: to thlz

z ~ l c t l o n lt 1s fer the Mlnlzter

, d ~ t ~ r m ~ n e the speclflsatlonz applicable and that, wlth respect to the frequency, EI matter refert-4 to I n para. 'e1 nf rhe deflnltlon of "speclflcatlon" in sub-sectlon 80(1), the determlnatlcn is not required to be consistent wlth or subetantlally consrstent wlth the matters set out I n the orlglnal notlce published I n the Gazette. It 1 s sald therefore that the frequency to be used by the proposed licensee 1 s not a matter relevant to the inquiry as It 1s a matter solely for the Mlnlster to determlne.

The contrary argument is based upon the provlslons of ~.83!6)(c)(lr(B) when It speaks of the technical capablllty of the proposed licensee and upon z.S316)(d) which It 1 s sald requires the Tribunal to consider all matters concernlnq the publlc Interest not personal to the appllcants, as are the matters referred to In s.83(6)(a)(b) and ( c ) , with respect to the thlrd commerclal televlslon statlon.

The relevant portions of the Minister's nntlce are as

follows -

"IN pursuance of sectlnn 82 of the Eroadcastlnq and

Televlslon Act 1942, I, Mlchael John

Duffy,

Mlnlster of State for Communications, hereby

L! -.

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I-

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1 7 2 .'C

t 1,

ttL.?

t -,l :

, - W L I q

:PEclilc3rlrc:.

' 3 t_he Ilcensee =kill provldc- a televirlon SEIV~CP

rean= cf a romrnrrcl&l

t e l e v l - l o n stst~on;

' l ? ~ tile

=rea z e t r V v i zhall

be an

area wlt-hiln

the

Perth Metropolltan Tel?vi5iqn Area 11, the ;tata

cmf ;f !EIC.

I Weztern Australia:

c i the purpose of the 5 e ~ v l c c

shall be to provlde

a ~:ornmerclal Celevlslon servlce to communltles

wlthin the area

referred to An

t b ) above;

id) the llcensee shall operate withln the following

nnmlnal technical parameterz:

Transrnlttec Szte:

Location

: In the general viclnlty

of the

exlstlng televlslon transmlttlng

statlons at Bickley.

Technical

Characteristlcs:

Vision Carrier

: (VHF channel 10) or (UHF channel

31 I

Polarlsatlon	: Horizontal
Helght of
Antenna above
ground level	: Adequate to provlde appropriate

coverage of the area ldentlfied in

(b) above.

Effectlve

Radiated Power

: lOOkW (VHF) or 300kW (UHF)

Radiation Pattern : Ornnldirectlonal.

Detailed technlcal parameters will be determined following consultation between the successful applicant and my Department.

Where the successful applicant chooses to use VHF channel 10 It wlll be requlred to:

Negotiate wlth affected licensees and my Department suitable alternatlve technical conditlons for those televlsion stations and televlsion ttanslator statlons whlch are thereby required to rhange frequency;

statlons and televlz;lon

translator

stations to

alternatcve

technlcal

c x d : t l o n s . "

Bear the full cost of conversion of these television

Section 83(6)(d) refers to "a llcence of the klnd

contemplated by the matters set out" In the Mlnister's notice and

the meanlng of this phrase has been the subject of much debate

before me.

The applicants in the matter before me contend that

It necessarlly Includes all the matters set out in the notice ineludlng the shnlce of frequency and that the Tribunal 1s under

a duty In the publlc lnterest under s.83(d) to investlgate the

questlon and report thereon to the Mlnlster In Its report to hlm under s.25E of the Act. The contrary argument is that the

F T L I - , . - .

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.YlTpL>-

I:,

l:.;e

,:.Inmrner,:;il

te le -~-~s:~- ,r~

~ : - ,EI :L~? .

I ,to nct ~ ~ : ~ e p k

thls -arqumrnt.

If +.hl: were the lr.tr.:lkion nf the 1eglslaCure It would have been sl.nFie enough to Z ~ I J c lear l l r . I say further that a licence

of the k l n d conterplated by Lhe matters must In my

vlew mean

licence of the kind

contemplated by all

the matters set out In

the notlee, not j u s t some of them.

Among the matters set out in

the notlce are thr. alternative vlsion carrier frequencles.

the Trlbunal should after

a thorough

Investigation come to the

concluslon for technlcal reasons and In the public interest that

a licence for a station uslng one of the offered frequencles

should not be granted then It may refuse to grant a licence to an applicant who has chosen that frequency. Should the Tribunal

come to the

concluslon that for technlcal reasons and in the

publlc interest a

licence lnvolvlng the use

neither of the

nominated frequencles should he granted then it may refuse to grant a llcence at all and report the result and its reasons to the Mlnlster. I have said for technlcal reasons and In the public interest because of course the choice of frequency 1 s to a large extent a technlcal matter. It 1 s also a matter involving the public interest because of the fact that the use of a partlcular frequency may cause or involve Interference wlth the receptlon of other televlslon, radar and radio signals. It may also, as in the case of the UHF frequency, involve the public In a great deal of expense In the adaptatlon of Its television sets and antennae in order to enable recelpt of the programmes

broa&s:ast by the new stdtlon. The Lnqulry 1s the only public

Sectlr,n 5 3 ! E I . d )

layr

do-m no

crlterla tu

guide

the

Trlbunal 3s to the grounds u p m whlch the qrant of a llcence

contemplated by the mattzrs set cut In the notice may be refused. If, as I have sald, ~t 1 s correct to say that the choice of frequency 1 s one of the matters which are comprehended In the phrase "llcence of the klnd contemplated" then in my view the Tribunal is obliged to consider this matter In order that it may declde whether or not it should refuse to grant a licence of the klnd contemplated by the notlce.

Although as I have sald s.83(6!(d) lays down no criteria

as to the reasons which may lead the Trlbunal to refuse to grant

a licence and although the matters set @ut in s.83(6)(c) are

quallfied by the phrase "in the publlc Interest" the Tribunal is obliged to act In the public lnterest (re: Australian Broadcastinq Tribunal; ex parte 2HD Ptv Llmlted (1979) 27 A.L.R.

321). This being so the crlterla impllclt In the sectlon must

include, lf not be governed by,

the

public

Interest.

Conslderatlon of the public lnterest may persuade the Tribunal to grant no licence at all or may persuade It not to grant a licence

to an appllcant who chooses a particular frequency even though

ultlmately thc Mlnlster may specify another frequency. The

In the result It IS my oplnlon that the choice of

frequencles and the surtablllty of each on technical and publlc

Interest qrounds must be considered by the Tribunal. Put

another way, the choice of frequency and the technlcal

details

and ramifications and

public

interest

effects

of each

are

relevant matters for the Trlbunal to conslder.

THE COMMEXCIAL VIABILITY OF THE TELEVISION STATION PROPOSED BY

THE APPLICANTS

The lncumbents sought and

were refused by the

Trlbunal

leave to cross-examine and call evidence a6 to the

commercial

vlabillty of the televislon

station proposed by the appllcants.

I put on one slde the issue of the breadth of the rlghts of the lncumbents to partlclpate in the inquiry. The Trlbunal declded however that the commerclal viability of the proposed station is not a relevant lssue In the lnqulry and it is the correctness of thls declslon amongst others which 1s challenged and with which I

now deal.

It 1 s polnted out that

~.83(6)(c)(i)(E)

the Act

requlres the Tribunal to conslder the financial capabillty nf the

In my oplnion the commercial viablllty of the televislon station proposed by the applicants 1s a relevant issue for the Tribunal to conslder on three maln grounds. First the

"flnanclal capabillty effectively to

perate

the

relevant

television statlon" must Include as a factor to

be consldered the

commercial vlablllty of the station.

Flnanclal capability In my

vlew contemplates both skllls In flnanclal management and the

availability of flnanclal resources. Flnanclal management

skills may no doubt be assessed on the basis of the

qualiflcatlons of and

past and present

performance of

the

appllcants In this and other areas and qulte wlthout reference to the commercial vlablllty of the proposed station. The adequacy or otherwise of flnanclsl resources can only be assessed against

Second, It is not In the publlc interest that

a new

television station should fall flnanclally.

If it 1s thought

necessary In the publlc interest that there should be

thlrd

commerclal televlslon station servlnq the

Perth metropolltan area

then It must be contrary to the publlc Interest for that station

to f a l l , thus frustrating the declslon to establlsh It and

dlsappolntlng the needs and expectatlons of the publlc which led to tr:e statlon being establlshed In the first place. I do not

suggest of course that the Tribunal can guarantee the

commerclal

Tlllrd, 1 pclnt cxt that the

Trlhunal 1 s requlred

when

ccnsldering the grant of 3. thlrd tele;.lslon licence to conslder the commerclal vlablllty of the Incumbents. The possible effect of the third statlon on the commercial vlabillty of the Incumbents can only he properly assessed when the commerclal viabllity of the proposed new statlon 1s also assessed. If It

2s l l k e l p to be extremely

successful then Its effect may

profound. If

on the other hand It IS likely slmply to keep Its

head above water and not much

more then Its effect will be

considerably less.

In any event the future commercial vlabllity

of the new station will have a deep and dlrect effect on the

commerclal vlabillty of the Incumbents the degree of which will

to some extent depend on lts own commerclal viabillty.

For these reasons I conslder that the Tribunal should

conslder and lnvestigate the commerclal

viabllity

the

televlslon statlon proposed by the applicants.

THE RIGHTS OF THE INCUMBENTS TO FARTICIPATE IN THE I N Q U I R Y

SectIon 2 2 of the Act 1 s a5 follcws -

" 2 2 . In proceedlngs before the Trlbunal at an

lnqulry under t h s Dlvlsion, a person who

5irectly

concened In the proceedmgs, and,

with the appt ov31 cf the Trlbunal, ar:y

other

'Jn i2

Decrmber 1 3 E 4 Che TL Ihktnal ru1c.d that "Swan

Televlslon ar.6 hadlo Eroa,lcasterz Llmited axrl T W ? Enterprises Llmlted were entltled to be partiez to the proceedlngs and gave leave for them to be represented". The Trlhunal then set out the names of counsel a?d sollcltors who were authorlsed r o represent them. In the same rullng the Trlbunal ruled that certain other parties were persons Interested ln the proceedings and gave leave f o r them to be represented by speclfled counsel and sollcltor. The Trlbunal went on to speclfy and llmlt the rlghts of these partles to partlclpate In the inquiry with reference t o thelr speclal Interests but speclfled no llmltatlon with respect to TVW and Swan. It 1 s argued by TVW and Swan that in thls dlrectlon of 18 December the Tribunai understood the matter of interest and partlclpatlon and correctly limited the "special interest partles" to partlclpatlon with respect to their special Interests and correctly dld not llmlt TVW and Swan but slmply admitted them as partles effectlvely treatlng them as "persons dlrectly concerned" and equatlng thelr positlon wlth that of the appllcants for the llcence.

There 15 no doubt prlma facle power In the Tribunal

under s . 2 5 ( 1 ! to alve

such dl:-ectlons as It zonslders

necessary

5ectlon Z E ! Z i

requir?s the I't-lbunal to q1-x to every

person ha71ng an Interest In the proceedlngs a reasonable opportunity to present hls cas2 and s . a i ' A requlres it to "act falt-ly and observe the rules of naturai ~usclce". 1 mention also the requlrement in s . Z E ( 1 ) that: the Trlbunal make a thorough

lnvestlgation ~ l t o

all matters relevant to the mqulry.

The Incumbents have an undoubted commercial interest

the outcome of the inqulry generally and In particular in

opposing the grant of a llcence to anyone.

Section S3(6)(d)

requires the Tribunal to conslder whether or not a llcence should

be granted.

The incumbents are the only persons

represented

before the lnqulry wlth an lnterest to oppose the grant of any llcence on technical or public interest grounds or both. ThlS, it IS said, they may do elther by showing that in general terms no licence should be granted or else f o r reasons applicable to each of the three applicants that the Trlbunal should not grant d llcence to any of them. AE well 3 s the power to refuse to grant

the license given by s.S3!6)(di

the Trlbunal may If it decldes

t h t 111 shouli' grant the licence decllne to grant it to any of the three applicants on the grounds set out In s.S3(6)(a), (b)

KInl-ter for Post and Telecommunlcatlons 5 Anor. (supr-a) are of

assistance.

Alckln J. says at p.44E -

"It 1 s .

I think, clear

that

the Board 1 s not

authorized to qive directlons under S 25 whlch would result In the hearing belng otherwlse than lust to those represented before It. No doubt the requirements of thoroughness, expedition and justlce do not always proceed in unison, but the

sectlon does not warrant the sacrlflce of

justlce

to expedition. The Board may have power to place some limits on cross-examlnatlon but that would not warrant the denlal of cross-examlnation to one party, whlle permitting it to another. Moreover,

It would

be an unauthorized exerclse of the

discretlon to deny	to all partles a right of
cross-examlnatlon."

and at p.446 -

"It was suggested that

in an inqulry before the

Board, although natural justice would requlre a fair opportunity to the applicant to present his case, lt would not require that each party should be allowed an opportunlty to destroy or crltlclze another party's case. This is a submission which I am unable to accept and indeed one which seems to me to be in fundamental conflict wlth the

prov151ons cf the Act Itself."

It seems clear that li the incumbents have a leqltimate

case to oppose the grant of any licence In general and also in

particular to oppose the qrant JI d llcence to each of the

I a m not of course

say lnu

tha t

the

lncunbents

should

not

r e s t r l c t e d by

the

ordinary

rules

re levance

and

p ro l lx l ty .

C lea r ly

t he

T r lbuna l

shou ld

l l b e r t y t o

s t o p

cross-examlnat lon

seen

t o

I r r e l e v a n t

l n s u f f l c l e n t l y

r e l evan t to any 1s;ue

proper ly

before

I t , or t o be

unnecessar

pro l ix

and

should

l l b e r t y

t o

decllne t c hear evlsicnce

I r r e l e v a n t

o r

I n s u f f l c l e n t l y

r e l e v a n t

a n y

t o

issue

proper ly

before I t

and to

cu t

I t s h o r t

should I t

t ransgress

o rd lnar -y

llmlts

p r o l l x l t y .

In t h c e x e r c l s e

-.tz

POWEL

t o

c o n t r o l

I t s own

proceedings

< 5 . 2 5

t ? z A c t

1 the TL

lbunal xc;jt frLm tlme

t o

t l m e

make cleclslons a:

re lP-zanss a1-d 7 5 to ~ r o l : : ~ ~ t y

b u t lt

must bear 13 mind d k all tlrnec t h e words o f AlckLn J. m

thc

The above reasons deal adequately wlth the matters in

issue In W.A.G.35, W.A.G.37, W.A.G.41,

W.A.G.42

and W.A.G.43.

As I sald I would do In the course of the hearing I wlll hear counsel a5 to the form of the orders to be made.

W.A.G.36 - SWAN TELEVIZiON ANI? RADIO BROADCASTERS LIMITED v. WEST C Z X T TELECASTERS LIYITED, PERTH TELEVISION LIMITED, WESTERN TELOIIEION LIMITED, AUSTRALIAN JOURNALISTS ' ASSOCIATION,

MUSICIANS' UNION AUSTRALIA AND PTTBLIC TELEVISION (L4.A.

) INC.

As I have z a l d earlrer these thcee matters were

ordered

tbo he heard touether wlth priorlty uvet- the other

matters.

Accordingly thls hearlnq was embarked upon first.

The applicant

in two of

the matters

(W.A.G.26 and W.A.G.39)

was TJW and the

applicant In W.A.G.36 was Swan.

The respondents in each case

were the Trlbunal and the

three appllcants for the llcence.

Each matter 1 s an appllcatlon under the Administratlve Declsions (Judicial Review; Act tn revlew certaln decisions of the Trlbunal made on 14th March 1985 whereby Swan and TVW were dlrected to

produce to the Trlbunal and serve on the agent of each of the partles llsted In schedule 1. to the dlrectlons certaln

documents.

Ir, some cases the publlcatlon of the documents was

unrestricted and in

others the FubliCatlOn was restrlcted to

certain classes of persons.

The parties llsted In schedule 1.

are

the

three

appllcants, the twc Incumbents and

Publlc

Televlzlon (W.A.) Inc.. rJnlted Telecasters Sydney Ltd and Austarama Ltd. Australlan Nrlters' Gulld, Australlan Journallsts'

:c?.cn

a t t e c

1 . 1 ~ h?arlng

b q a n i t

became apFdrent

that

Swan and T-01

had ~ r d u c e d the documentr; rEqul red of them to the

three 3ppllcar.t~

and that 50 far as they wefc conrerned the only

arguments wt.lch remalrred were with respect t o publicatran to

the

persons rlomlnated by each of

the

appllcants and those

representing them. On tk.c face of It a considerable proportlon

of the dlfflculty created by the dlrectlons and the opposltlon of

the incumbents to them had been resolved. The partles In schedule 1. apart from the appllcants for the llcence were not however partles to the proceedings and it seemed to me that slnce the orders sought by Tvw and Swan would, If granted, wholly o r In part affect the Interest of the "speclal interest parties" In the production of documents which the Trlbunal had recognised In Its directlons, efforts should be made to secure thelr attendance before the Court so that they mlght argue agalnst the contentlons of Tvw and Swan as to limltatlons of prnductlon. I therefore

adlourned the hearing

of the three

matters and with the prompt

ant effective asslstance of t,he Australian G0vernmer.t Sollcrtor rcntact was made wlth the "spcclal Interest partie=" and when the matters -.+=re f Inally argued I gave leave for the Australian

,?ournal~sts' Arsoc~atlon

!"the AJA"!, t h e

Muslclans' rUnion an?

A11 thlz was the resznn f,or the ialiure to comply wlth

'I'qmIhey J.

' s order anrl the delay In hearlng these three matters.

W.A.G.36 can convenlently be dealt xith flrst.

In the

course nf the directlons g-lven 011 l$ March 1985 the Tribunal

dlrccted that 1VW produce to the Trlbunal and serve on the agents

of every other

party

llsted

In schedule 1. coples of the

follrjwlng documents:

"All wrltten records of rontracts. arrangements or understandlngs

made or arrlved at by TVW wlth any llcensee of a commercial

television station or a commerclal television network entity

wlthln Australla from 1 July 1979 tn date under whlch programmes

transmltted from TVW 7 were supplied".

TVW seeks a revlew and a quashing of thls declsion on

qrounds stated In Its appilcatlon belng those contalned In

zs.5(l)(c), 5\l)!d), 5(l)(fl, 5il)lg), 5(l)(h), 5(2)(a), 5(2)(b),

5 ! 2 ) ( g )

and 5(2)!h) ~t the Admlnlstratlve Declslons (Judlclal

Review) Act 147:.

Tn state the grounds In thls way 15 almost

totally unlnfnrmatlve xnd had there been tlme and

had this matter

The

: c . a = - : ~

l-mr

t r re I~F;~C~:IC*I

-Jere sal6 to be -

That the I l r e c t 1mn z r .7n lvc . l

tk le

:reakLr,n or

document

or documentz and wa5

c h ? r e f o r ? be:-or.d

power.

Tha t the ncaning ,Jf the dirsstlon 2 s not clear and It 15

not clear what documents are t o be produced.

3 .

That the

direction 1s oppresslve In ~ t s

cope.

(1) I do not need to declde whether the Trlbunal has pwer

to direct the creatlon of a document containlng speclfled relevant lnformatlon. i lncline to the vlew that it has such power but I do not need to declde thls because in my opinlon the direction nelther expressly nor by lmpllcation requires the creatlon of a document or documents. It requires slmply prcductlon of "all wrrtten records" and not a reductlon to wrltlng of any oral contracts, arrangements or understandlngs and clearly In my vlew requlres productlon only of exlsting documents.

! 2 ) It 1~ arqued Chat the word5 "written records of contracts" 15 probably eiear enough, but that written records of "understandlngs" and of "arrangements" are too vague and lmFrrrise In thclr meanln7 and seopt! to be allowed to stand. It

1 s also p l n t e d

cut that vursuant t5

?,.25ABidl of the Act, TVW

mi,Jht be punlshed for illlture :q cemply w l t h a dlrection.

This

I take programmes

t=l be all

materlal broadcast by

lXW

whlrh 15 not an advertisement (see ss.43 and l00 of the Act).

Eecause It does not have a flrm relationshlp wlth any other Fartlcular televlslon organisatlnn interstate the programmes whlch TrJw broadcasts are elther produced by itself or supplled to It by other people or organliatloni. Such programmes supplied

from elsewhere are presumably

supplled

under a contract,

arrangement or understandlng. What	is sought by the dlrectlon
is	written

records of such contracts, arrangements or understandlngs wlth cespect to programmes tcansmitted from TVW 7.

The last phrase

of the dlrectlcrn 1 s "under whlch programmes

transmitted were supplled" . This means, in my vlew, that the records of contracts, arrangements or understandlngs are sought

wlth respect to programmes already transmltted.

The dlrectlon

does not say transmltted or to be transmltted and I thlnk

therefore that It does n o t contemplate contracts, arrangemenCS or understandlngs wlth r-espect to Programmes to be transmltted In

The wor5 "contract" rmz a

clear m e x n n ~ .

The

VC t-ss

arrangements and undrrstandlngj are cons;derably less preclse. W L I ~ tiietr ?.re 'quallflel 5; rhe flnal words "under whlch

pr,%:r3mmez trancmlttcd f r ~ m T:w7d 7 xet-e supplied" the words acquire 3 greater certainty ot meaning sufflclent :ndeed to Ldentlfy them. A s I have sald programmes supplled from

elsewhere a l e presumably transmltted under a contract,

agreement

or understanding.

If there is a wrltten record

that

contract, agreement clr understandlng then It must be produced.

The phrase "llccnsee of a commercial televlslon statlon

zmr a commerclal television network entlty wlthln Australia" has

caused me some dlffzculty. "Licensee of a commerclal televislon

statlon" 1 s of course clear enough.

The question which has

troubled me 1 s whether the

word "or" 1 s dlslunctlve so that the

Fhrase means llcensee of a commerclal television statlon or a

commerclal televlslon network entity or on the other hand means Ilcensee of a cornmet-clal tele7lslon station or llcensee of a cdmmercial tclevlsion entlty. I have come to the conclusion

L h - t

means the forrr-er. It is true that thls would have beer1

clearer if the ,d;rect~on read "or any" rommerclal televlslon

It 1s argued that the phra=e "commercial t?levlsicln network er.tlty" 1 s nevertheless zmprecise and uncertaln. I do not accept thls argument. It 1 s known that commerclal televlslon networks exlst ds groups of televlslon stations elther

under the same control or whlch cohere for the purpose

producing or purchasing programmes.

A commerclal televlslon

network cannot hold a llcence undeu the Act and yet such

network5

are the source of many programmes. The word "entlty" 1 s relevantly defined In the Shorter Oxford Erlgllsh Dictlonary as "being". If "L-1 has transmitted any programmes wlth which it was supplled by a commerclal televlslon netwcmrk "belng" then such

written records of the contracts, arrangements and understandlngs under whlch such programmes were suppl~ed as exist must be produced.

When the dlrectlon 1s

,nterpretcd and explalned in

the

way I have Interpreted and explalned

It It seems to m e to bc

perfectly clear and

ground of oblection, however lt is based

In suppork 2f the flrst gc,zund It waz proved that "VN ma1nta:ns 3 card m 2 p x 2f fllms wlth whlch It has been supplied whleh czntains lnformatlon about the number of times -1 fllm ha: 5een tsroadcast, the dates 3f c-ui-h broadcasts 2nd 8zihe1- matters.

It	was proved that L>.?r+ are iour thousand of s u c k zards and that

tn make enough rcple; ,of these cards to comply wlth the direction would take an oppressively lons time and lnvolve oppreEslve expense. The answer to this arqument lies In what I said earlier, that what 1 s called f o r 1 s wrltten records of contracts, agreements and understandlngs, not records kept relatlng to, or In the 1mplementatlon of iurh contracts, aqreements and understandlngs. No other evidence was tendered on what I may

call the opptesslnn by quantlty lssue, ana tke	oblection on this
qround falls.

As to the length

of time f o r whlch the written

records

are requlred I accept that to go back 5'1 far may be necessary and

expedlent to enable the

parties t.2 prepare and present their

cases to the Trlfiucai

and.

fn t -

t h e

Tribunal to

consider

the

In the result the appllcatlon of TVW m W.A.G.36 :5

dlsmlssed.

Mr A Shsnd	Mr K Moremon
Mr S Wh;te	Mr R Rowe
Mr P Marx	Mr J Styles
Mr A Binks Mr D Farrell

(Western)

Swan	Mr D Malcolm	Mr K Colllns
Telcv l s lon	Mr R Meadows	Prof. R
and Radlo	Mr M Lewis	Off lcer
Broadcasteus

( Swan

Mr M Bennett	Mr A C Good
Mr R H111	Mr N Dick
MS K Rooney	Mr C Rnberts-
Mr R Le Mlere	Floyd

M r A F Woodward M r 4 F

Woodward

Counzel

MS P Chonu

Mr R French

Assistlnq

Offlce of the Australlan Ms F Chonu

-	the Tribunal 'Government Sollcltor

9th Floor

- F

L J ~

Adelalde Trrrace

PERTH

€ 0 0 0

NOTE: Golden West Network Ltd has Indicated that It does not wlsh to receive coples of confldentlal documents other than matters of an

englneerlng r.atut-e.

In W.A.G.78 Swan zuhmlts that the dlrectlons be zct aside to the extent that fa) rt reqult-es Swan to produce f o r unrestrlcted Fubllcatlcn the documents set c u t In para. 1. of the directions to Swan 1 3 ) It requires Swan to produce to Messrs Treasure, Stckes, Stone and Farrrll the documents set out in

para. 2 . of the dlrectlons to Swan (c) It requires

Swan trj

produce to the speclal interest partles the documents set out

paras. 1. and 2 . of the dlreetlons to Swan. The grounes upon whlch there orders are sought are those set out in s.5(liff), 5fl)fg). !(2)(a), 5(2)!b) and 5!2)!h) of the Admlnlstrative Decisions (Judlclal Review: A d .

Eefore undertakmg any detailed xamlnation of the

d~rections

to whlch nb~ection 1 s taken It 1s necessary to

state

some

general

p t - o p o s l t l r n s .

Second, the agents of the s o called "speclal interest

partles" are entitled to attend all publlc s~ttinqs of the

commlsslon should they wlsh to do so and to hear the oral

evidence glven. Unless some good reason 1s shown f o r

restrlctlnq theLr

a c c e ~ s

to 3.ocumrnts whi-h the Trlbunal will

conslder they should	also havc s c c e z z	,m	these i see S . 2 5 ! 2 j	cf
the Act'.

Fourth, on the Issues ralsed by

the

dlrectlons the

Trlbunal hac engaqed In a balancln9 exerclse - balancing on the one hand the p b l l c narure of the rnqulry agalnst on the other

hand the w l s h ef some partles, In

this case the incumbents, to

protect the confldentlallty of	lnformatlon whlch may be seen to
be private.

Flfth, the Incumbents have

chnsen to enter the lnqulry

in order no doubt prlmarlly to protect Lhclr own commerclal interests and :c show 3mongt-t other thlngs that the effect on their eommcrclal vlab.-llty of the grant of a thlrd commerclal ~elevision licence ~ h d u l d lead the Trlbunal to refuse to grant

s ~ l c h a	l:.:?rice.	T.iey	mlqht	have	3vc,lded disclosing any
:

Sixth, the flnancial operatlons of a commer-clal

televlclon llcensee are In a dlfierent posltlon as to protection on a basls of confidentlallty to the financial operatlons of a buslness created from prlvate asset.; and operatlnc; In a market f u l l y open to compet:tlon. The maln aszet of a commerclal

televlslcn llcensee 1s the llcence ltself whlch 1 s granted to

hy or on behalf of the Australian government. No l l c e n c e 20 far

granted In Australia has ever been lost and ~t IS apparent that posseaslon cf 3 llcense enab1c:s the holdet- to Tenerate a qreat deal of prof 1t. The licence lr- not a thin? created by the

Havlng made these general observatlons I deal wlth each

of the appllcatlons	W.A.G.39 and W.A.G.38.
W.A.G.39

TVW argued that publlcation of documents should be restricted on a "need to know" basls whlch argument I have already re~ected. The onus 1s rather cmrl TVW to show that there

is some good reason for restrlctlng publlcation.

TVW also complains of the Trlbhnal's statement on p.l@ ijf the reasons for dlrectlons "that it would be almost lmposslble to condart an orderly or manageable hearlng If there was In effect a dlfferent set ;.f partiez Fermltted in the room for each one of a succession of documents the sublect of llmlted d l s c i o s u r e " . It 1s said that this 1 s both wrong and irrelevant.

I thlnk that the Trlbunal puts the dlfflculty a little hlgh by

say l r ig that an orderly or manageable hearlng would be "almost lmposslble" but It would be true '_n say that It would create dlfflculLlrs. The dlfilcGties 5c i.rea:ed are d relevant

conslderatlon for the Tr:hf.lnal

to take Into arcaunt in decldlng

hrw

'cm

rFzti-;:L

2uki ;rxtlcn

m ~ f dcruments and

n,~twlthstanding

thln the Tirbur~ll

tL.>: tr xr: e:rtent

r-.rtrlcted publlcatlon.

I do

51 far as dlre-tlcn 4. to TVW 1s conrerned the v ~ r ~ o u s

i'bj?rtlons made ire n o t i n my v l e w mide out. 1 am unable to dlscern any error c'f l3w 13 whdL the Trlbunal directed nur in particular do I thlnk that It took Irrelevant conslderatlonr Into account azr falled to take Into account any relevant

conslderatlnns.	The appllcatlon :n N.A.G.39 1 s lismlssed.
W.A.G.38

Swan's appllcatlon In thls matter In part raises the

same lssue of productlon of documents to the speclal interest

parties. For the reasons glven wlth respect to TVW's

appllcatlon In W.A.G.39

Swan's applicatlon must be re~ected sa

far a5 It deals wlth

this issue.

-3.5 I ?A.~~:o

.lZ~-?.~l.;

mad: rrle3.r thlr 1 5 a p-l~ml~

1ncpxr;- LL:

-i

I ,-

_ _ _

:h :'.I>::

: :-,A> c c n s l i c r a b l e lntcr+st ar.d

all

?ocumcnts

re:evdnC

to C h i e

: r q 2 L k - 7

ani'

dpon ;;h:ch

che

Tribunal may

p lzce

some weiqhh In 3rrlvlng at

&?ecl;ions shculd prima fac;e be

Fusllc

7Jn1ess there

y . 3 ~ d

I-easOn to restrlct theic

publicatlon

under s.l?!2).

I have relectec the appilcatlon to an lnqulry of

tins sort of ttre "need to know" approach.

What the Tribunal

should do and what It says It has &one 1 s balance the competing Interests of the Fubllz and of Swan ln marntalnlng the confldentlallty of informatlon revealed In the documents ordered to be produced. Before the productlon of documents relevant to

. -

the inquiry is restricted there must be a real llkellhotjd of

' L?&

detrlment to the producer arislng out of unrestricted publlcatlon. Then, that detrlment must be balanced against the reqhlrement for an open publlc hearlng. Since Swan entered the inqulry to oppose the grant of a further licence in order to protect I t s commercial lnterests and I n doing s o to demonstrate that Its commercial vlablllty wlll be adversely affected by such a grant It cannot expect restrlctlon on the publlcatlon of documents produced to the Trlbunal In Its suhmisslon to It unless the r-ea1 llkellhood of detrlment can De shown and thls detrlment outbalances t h r publlc rlght and Interest I n the dotcuments belrq pub1 15.

. -

1 s Eald that much 3f the lnfcrmation to be

publlshed

in the tables to he produced pursuant to dlrections l(a) and l(b) is the same information as is contalned In ABT form 12's supplled to the Trlbunal by Swan under s.106. The argument goes on that as a consequence of the confldentlality prov1s:ons of s.l06A(5) the publicatlon of thls lnformatlon should be restricted by an

order made under s.l9!2).

Reference 1 s made to the .3eclslon of

the Admlnlstratl-rc Appeals Tribunal handed down on 19 March 1985

in the Actors' E q ~ ~ t j r

Assoclatlon app1lcat;on rmdet- the Freedom

pf Informatzop Act

have accesz to financial lnformatinn

assembled hy the Tribunal under s.lC6A.

1 do not flnd it

It 1s necessary next

to look at t h e documents of

whlch

unrestrlcted publication 1s ormlered.

Table 5 contains lnformatlon about commerclal televlslon revenues f o r a period of ten years m Adelaide and Brisbane two markets near enGL.gh m size to Perth to make comparlsons useful.

The table sets out the total televlslon advertlsing revenues for

each market and an analysls of t h e revenue In each market

ex~rersed

as the relationshlp wlth the number of

homes contalnln7

televlslon set^

and wlth

the total of people

l l v l n g In those

homes. Table G. b.? agreement between TVM and Swar! 1s LL) contain simllar lnformatloq wlth :-ezpect to the Ferth market.

It seems

tc me

rhat this :F't'er!ue information IS vltal to and indeed

=ent ia1 to the ;z.sues

t h e v < ~ h l : - - k y r f

Che

iScJmbentz xxl

Table 7

. will contaln detalls

of what are sald t-. be

extra cost factors In the operation of Swan caused by Its geographical remoteness from those parts of Australia to the east. These costs wlll of course be most relevant when the commerclal viability of the proposed new licensee is belng consldered and are generally relevant to the inqulry. In common with ':hi. Tribunal I am unable to see "any appreclable harm" to fwan arising from the unrestrlcted publicatlon of the table. I can see no revlpwable error 111 dlcecting the unrestrlcted

u u b l l c a t l o n

table

7 A .

Table 9 A will

be a €lnanclal

prolectlon of the profit

and loss of Swan for the financla: years 1381-5 to 1933-1 lf no thlrd television channel is operating and Table 1OA wlll zontain

Ilnancial prolectlons af

the expected market share, sales, net

proflt and profit after tax of Swan f o r the same flnanclal years given the lntroductlon of a thlrd statlon and Its Impact upon a number of dlfferent bases.

It will be seen that

the Trlbunal has restr-lcted

publlcatlon of the figures wlth respect to the current financlal year and the next two succeedlnq f : n a n c l ~ l years. In lis reasons

s a y s that

It did khi:

because

,<;sclosut-e of the fiyr;t-es for

these three yea r s

cou ld er.z.ble 11;

outs;der- to have a current or

useable 1n;lgLt I n t o ttx Internal flnances ?f the Incumbents".

it se?mS ?g v: that :.aoler, 5A ancl 10A wlil co:-.ta::;

Important relpvanc Informatron f o r the 'Tribunal and that the srotectlon 31ven coupled w;t:-, the TJffrrr to conslder a further submlzslnn w ~ l l afford adequate protection for the confldentlallty of Swar. S Internal f1nancla.l affalrs. The

future pro~ectlonz

are once more lust that and even If they are

based on a sophlSt,rated computer programme there 1 s no

adequate

reason

further tu Frctect their publlcatlon.

I can flnd no

reviewable errok- in dlrectlon 1B.

Dlrectyons ltc), !d) and (e) call for the creatlon of

documents.

Swan doec not cb~ect

to the creatlon itself but says

that the Fubllcatlon of the documents so created should be restricted In the same way as publicatlon is restricted wlth respect to the doruments dealt wlth In dlrectlon 2 . The lnformatlon called for 11 relev&nt to the inqulry, Indeed it 1s not contended that lt 15 not s o relevant. The confidentiallty

of the a c k u s l

flgur~s

upon whlch the documents wlll have to be

baEem2

2i-otecczd >y r e q u l r ~ r q chat

the lnformatlon

In the

c r e a t e d document;: ? e

?::~re~s~d

ar per centaqes only.

I cannot

z z e khat t h e -,:irez:z1:!e2

:.juSl-ca';;cn

of these percentages

wlll

r~.-~.:t

13 s.ny a:yn~fic~~t Ictriincnt Indeer? an:r detriment at

all

T?::ez? fLm’1r Jerltlemcn ~ t - e

3: I his,? zald nomlliated In

schedule 3

the

annexK1-e t >

the dlrrction

3 5 expert5

whose

funrt1c.n 1 s to 1nstr;Act

t k representarlves 13 schedule 2 to

enable the c a 5 e o f the relevant p a r t y to be adequately put.

The

Trlbunal polntc . Iut and I agree wlth thls that

to enable the

reprssentatlves W ~ L are

c o u n s e l

and solicltors

put

their

~ c l ~ ~ n t s ’ ca es p r o p e r l y to the Trlbunal It is necessary that they recelve expert Lnstructlons on tcchnlcal matters such

programmlny, tclevIslon financing In partlcular, flnance and accountins generally and d s o on other matters. In crder

properly t o Interpret the evldence generally and documents In

particular, counsel and solicitors need the assistance of lnstructlons from experts in the particular fleld. Sectlon

25!3) requlres the Trlbunal to grve to every pet-son havlng an

Interest In proceedlngs before It a reasonable opportunity to present hls case and In partlcular to Inspect documents to wtrlch che ‘ l r lbunal proposes to have regar-d. The rlght to lnspect documents 1s not very useful unless accezs can also be had to expert advice ln order pr-operly to lntelpret chem. Therefore In

.cr,Lli.r f o r

t.Le T r l b u i a l

ta perform the

duty phced

upon it

’I

It 1 s argued that

all four m?n can hardly be

descrlbed

as independent experts as they arc dlrectxrs of potentlal competltors. Treasure and Stokes are directors of the company whlch operates a commerclal radlo statlcn I n Perth whlch 1s the reason why the Tribunal has sald they are not entltled to documents wlth respect to radio rtatlons EKY and 6IX.

W.A.G.34 - TVW ENTERPRISES LIMITED V. AUSTRALIAN BROADCASTING

IkISUNAL and PERTH TELEVIZION LIMITEP

E.: x11: ha-e :#eel-. Apparent f t om the tict thac I stzmpped Mr Hasluck, In m;- ~J~E'W Lhis IppliTatlon m'dzt be d1smlssi.d. it seem: +c me that the power

crlven In

seetlon

t32 ' ' ; j is

,..nlimited.

it 15

certainly unllmlted by any spe,:lflc expllclc Ilmikatlons In the act Lnd I do not accept Mr Bennett s assertion that t h e r ~ 1s an lmpliclt

llmltatlcn on the power

arising, s s I understood

h x m to say, becaurc It mlght be very dlfflcult

let a FSrty *come :n after the lnqulry had gone far qulte a long tlme because chere would have beer. an exchanqe of clalms and counter-clalms and

docunents and things of that sort.

I thlnk that

overlooks t h e fact that the section gives the tribunal power to do zomethlng. It does nut say that it must. It has a dlscretlon to exerc l se .

may

grant

an extension of tune for an

appllcatlon to be lodged.

If serious dlfflcultles were apparent to the tribunal when It was asked to exerclse that

dlscretlon gf

r h e s o r t whlch Mr Eennett mentlnned

I would suppose that thls would be a weighty

matter whlch lt shGul.3 conslder when

decldlng

whether or not to arant leave.

The posltlon that

~ c c u ~ r e d

here, of c2clrse, was that, in a rather

ronfuslr,~

way, an appILratlon was made m the

C l r t ~nztance purported1:r

by Perth Television

Llmlted, a

~ o m p a n y

yet t o be f ~ r m e u .

Justlce

'i'c,:Sthe:;

1eclded

some

tlme

later

that

dppl1ca t ;cn WLLC xade, in :act, >my

a :.I.- ?>-e on

behalf

8 ~ 1 2 that

company

and

thls

l a t e r

appllca?l?n

t h t xas mace, t he teC?lft of srhlcir 1 s

~ompialced

nf LI:r TJd, xas

r , ~ ,

i h h t made a:

a eonzEqllencz of

that	f -inl1nq.

1 certify that tlils 3nd

the 7 1 presedlng pages are 3. Ct-ue copy rJf the Reasons for Judgment ?f Mr JuLt- lce

Forr-ter.

[1985] FCA 336

26 Jun 1985