TVW Enterprises Ltd v Duffy (No 3)

[1985] FCA 525

Re: TVW ENTERPRISES LIMITED
And: MICHAEL JOHN DUFFY; AUSTRALIAN BROADCASTING TRIBUNAL; PERTH TELEVISION
LIMITED; WEST COAST TELECASTERS LIMITED and WESTERN TELEVISION LIMITED
No. WAG 69 of 1985
Broadcasting and Television
8 FCR 93

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Sweeney(1), Sheppard(2) and Beaumont(3) JJ.

CATCHWORDS

Broadcasting & Television - Tribunal inquiry into grant of additional commercial television licence for Perth metropolitan area - case stated - questions of law concerning relationship between ss.82 and 111C(1) Broadcasting & Television Act, 1942.

(1) whether issue by Minister of notice pursuant to s.82(1) constitutes planning of the development of broadcasting and television in Australia within s.111C(1).

(2) whether assumed failure to comply with s.111C(1) invalidates issue of notice - requirement of consultation by Minister with existing licence holders - whether consultation condition precedent to issue of notice - whether public inconvenience would result - factors taken into account by Court.

Attorney-General (N.S.W.) Ex Rel Franklins Stores Pty. Ltd. v. Lizelle Pty. Ltd. 2 N.S.W.L.R. 955 - con.

Scurr v. Brisbane City Council (1973) 133 C.L.R. 242 - con.

Tasker v. Fullwood (1978) 1 N.S.W.L.R. 20 - con.

Broadcasting and Television - Tribunal inquiry into grant of additional commercial television licence - Issue of notice by Minister pursuant to s 82 of Broadcasting and Television Act 1942 (Cth) inviting applications for grant of further licence - Questions of law concerning duties of Minister under s 111C in discharging his responsibility to "plan development of television and broadcasting services" - Duty to consult with representatives of television and broadcasting stations - Whether issue of notice constitutes "planning" development of television service - Whether Minister obliged to consult about issue of notice and/or introduction of new licence - Whether failure to consult invalidates notice and/or subsequent inquiry - Factors to be considered - Broadcasting and Television Act 1942 (Cth), ss 82, 111C.

HEADNOTE

Pursuant to s 82(1) of the Broadcasting and Television Act 1942, the first respondent (the Minister) issued a notice which, inter alia, invited interested parties to lodge applications with the Australian Broadcasting Tribunal for the grant of a further commercial television licence in the Perth area. The applicant sought a declaration that the notice and subsequent Tribunal inquiry were void and invalid on the ground that, by reason of s 111C of the Act, the Minister was obliged to consult with the applicant and others prior to the issue of the notice and had failed to do so. Pursuant to O 29, r 2 of the Federal Court of Australia Rules 1979 (Cth), the trial judge, in answering certain preliminary questions of law, held, inter alia, that whilst there was an obligation to consult in respect of the development of television services by the introduction of a further such licence prior to the issue of the notice, there was no obligation to consult about the publication of the notice itself. On appeal,

Held: (1) Per curiam: The Act does not make consultation under s 111C condition precedent to the validity of a notice given under s 82(1) or of the subsequent Tribunal inquiry.

(ii) Per Sweeney J and per Sheppard J: the Minister was obliged to consult representatives of existing television stations before deciding to call applications for a further commercial television licence, but once he had decided to do so, he was not obliged to consult them in relation to the publication of a notice under s 82(1), that being merely a ministerial act, not a part of the planning process.

(iii) Per Beaumont J: There is no necessary connection or nexus between the planning contemplated by s 111C(1)(a) and the giving of a notice pursuant to s 82(1)(A). There was no finding of fact or relevant concession that the Minister's decision to give the statutory notice was something done by him in the course of his planning the development of broadcasting and television services in Australia. As a matter of fact, it may have had that character, but it may equally as well have had a different character.

Attorney-General (NSW) (Ex rel Franklins Stores Pty Ltd) v. Lizelle Pty Ltd (1977) 2 NSWLR 955; Scurr v. Brisbane City Council (1973) 133 CLR 242; Tasker v. Fullwood (1978) 1 NSWLR 20; Montreal Street Railway Co v. Normandin (1917) AC 170; Victoria v. Commonwealth (1975) 134 CLR 81, referred to.

HEARING

Perth, 1985, September 19-20; October 11. #DATE 11:10:1985
APPEAL

Appeal from judgment and orders of Toohey J in respect of preliminary questions of law decided pursuant to O 29, r 2 of the Federal Court of Australia Rules.

A H Goldberg QC and P R. McCann, for the appellant.

Prior to the publication of the notice, the Minister was obliged to consult with the other licensees, not only about the grant of a new licence but also about the publication of the notice. If he failed to do so, he failed to comply with s 111C(2)(a), a condition precedent to the validity of the notice and the Tribunal's inquiry pursuant thereto.

A J Templeman, for the first respondent.

The Minister does not discharge a "planning" function in publishing a notice. There is no connection between the provisions of s 82(1) and s 111(1) of the Act. If the Minister were obliged to consult with the existing licensees prior to issuing the notice, he would be usurping the role of the Tribunal. Since the Act contains no provision to enable persons to verify if there has been consultation, it cannot be said that consultation is a pre-condition to the validity of the notice. No prejudice will be suffered by a person who responds to a notice issued without consultation. Neither the notice nor the subsequent inquiry are invalidated by lack of consultation.

P S Chong, for the first and second respondents (the Minister and the Tribunal).

G M Kelderman, for the first-named third respondent (Perth Television Ltd).

R. J M Anderson QC and M D F O'Sullivan, for the second and thirdnamed third respondents (West Coast Television Ltd and Western Television Ltd).

In respect of the grant of a new television licence, no activity of the Minister antecedent to the completion of the Tribunal inquiry can be described as "planning" activity. Consultation would serve no useful purpose as it is for the Tribunal to decide whether or not to grant a new licence, not the Minister. There was no duty to consult about the introduction of a further licence.

Cur adv vult

Solicitors for appellant: Keall Brinsden.

Solicitors for first and second respondents: Australian Government Solicitor.

Solicitors for first-named third respondent: Robinson Cox.

Solicitors for second and third-named third respondents: Stephen Jaques Stone James.

SMW

ORDER

1. The appeal brought by leave from the orders made by Toohey, J. on 12 July 1985 be dismissed.

2. The appellant pay-the respondents costs of the appeal, including any reserved costs.

3. The appeal from the orders made by Toohey, J. on 20 September 1985 be dismissed.

4. The appellant pay the respondents' costs of the lastmentioned appeal, including any reserved costs.

5. The cross-appeal from the orders made by Toohey,J. on 12 July 1985 be dismissed.

6. The cross-appellant pay the costs of the cross-respondents of the cross-appeal, including any reserved costs.
   
   Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Appeal and cross appeal dismissed with costs

JUDGE1

The Australian Broadcasting Tribunal ("the Tribunal") has since late 1984 been conducting an inquiry relating to the question of the grant of a third commercial television licence within the Perth Metropolitan Television Area.

From time to time there have been applications to this Court seeking to challenge decisions made by the Tribunal in the course of its inquiry and at least one previous appeal to a Full Court.

TVW Enterprises Limited ("TVW") is the holder of a commercial television licence in respect of that area and is appearing before the Tribunal to oppose the grant of an additional licence. By an application dated 22 February 1985 it claimed a declaration that the notice published by the first respondent ("the Minister") on 7 May 1984 purportedly pursuant to sub-section 82(1) of the Broadcasting and Television Act 1942 ("the Act") notifying interested persons that they might lodge with the Tribunal, inter alia, applications for the grant of an additional licence, was and is invalid and void and that the inquiry commenced by the Tribunal was and is invalid and void.

The respondents to the application were the Minister, the Tribunal and the then applicants for the additional licence, Perth Television Limited, West Coast Telecasters Limited and Western Television Limited.

TVW relied upon s.111C of the Act which provides that it shall be the responsibility of the Minister, amongst other things, to plan the development of television services in Australia and that in discharging that responsibility he shall consult with the representatives of television stations in relation to matters affecting those stations. It contended that in considering whether to publish the notice and in publishing it the Minister was engaged in planning the development of television services in Australia and accordingly was obliged to consult with its representatives. It alleged that the Minister failed so to consult its representatives, by reason of which failure the notice and the inquiry were said to be invalid and void.

In his defence the Minister contended that s.111C did not give rise to any obligation to consult TVW before the giving of the notice, but that if, contrary to that contention, there were such an obligation, it had been met.

On 28 March 1985, upon a motion by the Minister, the learned trial judge, pursuant to 0.29 R.2 of the Federal Court Rules, made an order for the decision, before the trial of the application, of the questions whether such an obligation to consult rested on the Minister, and, assuming that there had been a failure so to consult, whether it rendered the notice and the inquiry invalid and void.

Where the decision of a particular question may determine the outcome of an application and save the parties the expense of a trial upon all the issues, the advantages of the use of the power under 0.29 R.2 are plain. In a case such as the present, where there are alternative defences, it is convenient to decide the preliminary question upon an assumption made for the purposes of that decision (see Yango Pastoral Company Pty. Limited and Others v First Chicago Australia Limited and Others. (1978) 139 C.L.R. 410 at pp.419-420).

The first question which his Honour posed and his answers to its parts were as follows:

Was the Minister under any obligation to consult with TVW within the meaning of sub-section IIIC(2)(a) of the Act prior to publication of the notice:

(a) about or concerning the publication of the notice - Answer: No

(b) about or concerning the development of television services in Australia by the introduction of a further Perth commercial television licence - Answer: Yes

(c) about or concerning planning the development of broadcasting and television services in Australia - Answer: Yes

(d) about or concerning any matter affecting TVW, or a specified class of television station including that conducted by it, to a greater extent or more particularly than television stations in Australia generally - Answer: It is unnecessary to answer this question.

TVW submitted that the answer to Question 1(a) should have been "Yes". In their cross-appeal, the other applicants for the licence contended that the answer to Question 1(b) should have been "No".

The answer to the first question turns upon a consideration of the relationship between s.111C(1)(a) and (2) and s.82(1) of the Act.

The latter section, which is in Part 111B, dealing with licences, provides that before a licence (which includes a licence for a commercial television station) is granted, otherwise than by way of renewal, the Minister shall publish in the Government Gazette and in a newspaper or newspapers circulating in the area concerned, a notice:

(a) setting out an outline of the specifications to which it is proposed the licence is to be subject; and

(b) notifying interested persons that they may -

(i) lodge with the Tribunal, not later than a specified date (not being earlier than 21 days after the date of publication of the notice in the Gazette) applications, in accordance with a form approved by the Minister, for the grant of the licence; or

(ii) lodge with the Tribunal, not later than 14 days after the date so specified, written submissions relating to the grant of the licence.

Section 111C, which is in PART V - GENERAL of the Act, reads:

"(1) It shall be the responsibility of the Minister -

(a) to plan the development of broadcasting and television services in Australia;

(b) to determine standards and practices in relation to the technical equipment used for broadcasting and television services and the operation of such equipment;

(c) to investigate and correct interference with the transmission and reception of broadcasting and television programs; and

(d) to conduct examinations, or make or approve arrangements for the conduct of examinations, and to issue certificates, as to the competence of persons to operate technical equipment used for broadcasting and television services.

(2) In discharging his responsibilities under paragraph (1)(a), the Minister shall -

(a) consult representatives of broadcasting stations and television stations in relation to matters affecting those stations; and

(b) if there is a Broadcasting Council - consult with that Council in relation to matters generally affecting broadcasting and television in Australia.

His Honour stated that:

"But the question still remains - in publishing a notice under s.82(1) is the Minister engaged in planning the development of television services within s.111C?"

The submission by the appellant that this was too narrow a view of its case was not, in my opinion, made out, as may be seen from the fact that the questions, which his Honour settled, referred to consultation prior to publication of the notice:

(a) about or concerning the publication of the notice (to which his Honour answered "No")

(b) about or concerning the development of television services in Australia and

(c) about or concerning planning the development of broadcasting and television services in Australia (to both of which his Honour answered "Yes".)

His Honour evidently drew a distinction between the consideration which led up to the decision to publish the notice and the mere implementation of that decision.

The Act clearly distinguishes between the roles to be played by the Minister and the Tribunal in relation to the grant of a new television licence. Unless the Minister publishes a notice under s.82(1) the Tribunal may not conduct an inquiry into the granting of a licence. However, when the Tribunal conducts an inquiry it becomes its responsibility to decide whether to grant a licence and, if so, to whom.

Even a cursory acquaintance with the public record of the history of the development of television in Australia makes it plain that the decisions made from time to time in relation to the holding of inquiries to consider the grant of new television licences have been amongst the decisive events in the development of television in this country. It is "in discharging his responsibilities" to plan the development of television services in Australia that the Minister shall consult representatives of television stations. It is not after he has discharged his responsibility to plan, when he has presumably arrived at a planning decision, that the Minister is to consult. A decision not to publish a notice which may result from the Minister's consideration will preclude the possibility, for the time being, of the grant of a licence and clearly affect the development of television. In my opinion, the Minister in considering whether to publish a notice is discharging his responsibilities to plan the development of television services in Australia.

In answering "No" to Question 1(a), the question "about or concerning the publication of the notice" and "Yes" to Question 1(b) and (c), his Honour was clearly distinguishing between the ministerial steps flowing from his decision to publish it and the process of arriving at the decision. I agree with the answers which his Honour gave to the various parts of Question 1.

The remaining answers challenged by the appellant were those given to Questions 3, 4, 7 and 8, which read as follows:

"Question 3. If the answer to Question 1 is in any respect in the affirmative, in each case was the notice thereby invalid and of no effect? - Answer: No.

Question 4. If the answer to Question 3 is in any respect in the affirmative, is the inquiry invalid and void? - Answer: This question does not fall to be answered.

Question 7. If the answers to Questions 1 and 2 are in any respect in the affirmative and the first respondent and the other ministers above mentioned failed or neglected to consult the applicant within the meaning of sub-section 111C(2)(a) of the Act as referred to in Questions 1 and 2 respectively, was the notice invalid and of no effect? - Answer: No.

Question 8. If the answer to Question 7 is in the affirmative, is the inquiry invalid and void? - Answer: This question does not fall to be answered."

In its notice of appeal TVW seeks orders that affirmative answers be given to each of these questions and that the respondents should pay TVW's costs, including all reserved costs, of the Case Stated and of this appeal.

The answers to Questions 3, 4, 7 and 8 turn upon the construction of the statute. The case was considered by his Honour on the assumption that there had been no consultation prior to the publication of the notice. The question therefore is whether absence of consultation leads to the result for which the appellant contends, that the applications for the grant of an additional licence and the inquiry commenced by the Tribunal were and are invalid and void.

The obligation upon the Minister to consult is in the present case in respect of the publication of a notice which is certain to come to the attention of existing licensees under circumstances where a substantial time will elapse before the commencement of an inquiry, at which they will have a right to be heard.

Had the legislature intended to produce the result that in the absence of consultation, the notice and the inquiry were to be invalid, with all the consequences which would follow, it is reasonable to expect that it would have done so in plain terms. As Sheppard J. has pointed out, it is useful to compare the sections with which we are concerned with ss.81(3), 82(1) and 83(6) of the Act.

If the construction for which the appellant contends were adopted, the validity of the notice and the inquiry would turn upon the question whether the Minister had consulted with representatives of television stations. There is a danger, in a hearing such as the present which has proceeded upon an assumption that there was no consultation, that the nature of the event said to be the test of validity may be overlooked. One would more readily conclude that the legislature intended a particular event to be a condition of validity, where that event was likely to be within the knowledge of those concerned with validity. One licensee who had been consulted, on any test of the meaning of that word, would not necessarily know whether other licensees had not been consulted. Other persons would be unlikely to have any knowledge on the point.

It may not be easy in a particular case to decide whether what passed between the Minister and the representatives of a licensee amounted to consultation. The validity of a notice and an inquiry could thus be uncertain. This consideration gains weight when one considers the length and cost of such inquiries and the inconvenience to the public, the parties and interested groups which such uncertainty would produce.

In my opinion, the Act on its proper construction does not make consultation under s.111C a condition precedent to the validity of the notice and the inquiry.

Beaumont J. has set out the procedural steps whereby the learned trial judge granted leave for an amendment of the original application and then made a final order dismissing that application. An appeal from that order was brought before us immediately, and leave was granted for the bringing of the original appeal.

I agree with the answers given by the learned trial Judge to Questions 3, 4, 7 and 8.

I would dismiss both appeals with costs, including all reserved costs. I would dismiss the cross-appeal, with costs.

JUDGE2

In this matter I have had the advantage of reading the judgment to be delivered by Beaumont J. I am thus saved the necessity of setting out the facts of the matter, the detail of the relevant legislation and the course of the proceedings leading to these appeals and to the cross appeal. One matter, in relation to the course of proceedings, which I wish to emphasize, however, is that the argument before his Honour and before us proceeded on certain agreed hypothetical facts. One of these was that there had been no prior consultation by the Minister with existing licence holders (including the appellant). That is not in fact the Minister's case. If the matter were to be fully heard, he would contend that there had in fact been consultation. But the assumption that there had been no consultation was made in order to enable the point of law over which the parties are in difference to be determined. Pursuant to Order 29, rule 2 of the rules his Honour ordered that the point be determined as a separate question on certain assumptions of fact (no consultation being one of them) as to which the parties were agreed for the purposes of the argument but not otherwise; of. Yango Pastoral Company Pty Limited v. First Chicago Australia Limited (1978) 139 C.L.R. 410 at pp. 419-420.

The question at issue concerns the meaning and effect of paras. 111C(1)(a) and 111C(2)(a) of the Act in relation to sub-sec. 82(1) thereof. Initially one needs to consider the meaning of the expression, "to plan the development of . . . television services in Australia". Does this include decisions made, and steps leading to those decisions, that there be a third commercial television station in a particular centre, in this case Perth? In the submission of the third respondents, who are the competing applicants for the new licence, it does not. In their submission what is being referred to is planning in a wider and less well defined sense relating to general matters, many of them technical, concerning the way in which television services in Australia are made available. Examples would, in their submission, be provided by the consideration which needs to be given and the decisions which need to be made as a result of the launching of the new satellite, Aussat, the question of whether very high or ultra high frequencies should be used for transmission, the separation of frequencies in use by different channels, the desirable access that Australian citizens should have to commercial television, whether in country or metropolitan areas, and general programming matters, including standards and content of programmes. Much was made of the separation effected by the 1976 and 1977 amending Acts of the functions of the former Australian Broadcasting Control Board so that strictly administrative and political functions were vested in the Minister and the quasi-judicial functions of granting or renewing licences were vested in the present Tribunal.

In the submission of the third respondents, the decision to trigger the process which would probably lead to a third television licence in a particular centre was not planning the development of television services in Australia. Rather it was a decision within very defined limits that, all things being equal, there should be a third licence. But that was very much a matter for the Tribunal especially bearing in mind its power not to grant a licence because of the need for the commercial viability of existing television stations which are providing satisfactory television reception; see sub-para. 83(6)(c)(iii). Thus, what the Minister was really doing was invoking the Tribunal's jurisdiction to determine whether there should be a third licence and, if so, to whom the licence should be granted.

In my opinion the third respondents have approached the problem too narrowly. An examination of the history of the development of commercial television in Australia shows this to be so. Initially, decisions had to be made as to where commercial stations were to be established. As might have been expected, decisions were made to establish them first of all in each of the capital cities. Originally there were to be two licences in Sydney and Melbourne and one each in the other capitals, omitting Canberra and Darwin. Then there had to be planning of country television services. Decisions had to be made as to the country centres in which stations were to be established and the numbers of those stations. Those decisions no doubt involved many technical considerations as well as considerations both of what was desirable and what was achievable from a practical point of view. Eventually decisions were made to increase the number of licences in the major centres. Each time one of these decisions was made, so it seems to me, the decision must have resulted from a planning of television services in Australia overall. If one considers this case in isolation, it can perhaps be regarded as concerned only with what should be done in Perth. But that is part only of the overall spectrum. Thus a decision to establish a third television station in a particular centre and the steps leading to that decision are part of the planning of television services in Australia.

I do not think that the fact that the Tribunal may, on grounds of the need for the commercial viability of existing stations, refuse to grant a licence at all, affects this view. The provision in that behalf is found in a sub-section which commences with the words, "The Tribunal shall not refuse to grant a licence to a person unless it has held an inquiry into the grant of the licence and . . . it appears to the Tribunal, having regard only to the following matters or circumstances, that it is advisable in the public interest to refuse to grant the licence . . . ". One of the matters or circumstances is the need for the commercial viability of the existing stations.

But the provision needs to be read in context. In order to understand its place in the section, the whole section needs to be considered. Subsection 82(1) provides that, before a licence is granted, the Minister shall publish, in the Gazette and in a newspaper circulating in the area concerned, a notice setting out an outline of the specifications to which it is proposed the licence is to be subject. The Tribunal has no power to embark on an inquiry nor to grant a licence until such a notice is published. From the publication of it, it may be inferred that it is prima facie the view of the Minister that a licence should be granted. Neither the legislation nor the notice which he publishes should be read as if the principal question which will concern the Tribunal is whether or not any licence should be granted.

It was submitted by counsel for the appellant that the Minister's obligation to consult with existing licensees extended to consulting them about or concerning the publication of a notice pursuant to s. 82 of the Act. In my opinion that submission is unsound. Once a decision is made that, all things being equal, there should be an additional licence in a particular area, the planning process is at an end. The acts which invoke the Tribunal's jurisdiction are ministerial acts. No longer is any part of the planning process involved.

In fairness to counsel for the appellant, he did not put this submission to the forefront of his argument, but he did submit that there were indications in the judgment under appeal that the learned primary Judge had tended to restrict himself to this question. That was because of a sentence in the judgment which says, "But the question still remains - in publishing a notice under sub-sec. 82(1), is the Minister engaged in planning the development of television services within s. 111C?" That sentence precedes much of his Honour's discussion of the problem. But it is clear from that discussion and from the answers given to the questions formulated in paragraph 1 of the questions posed for his Honour's decision that his Honour did not restrict himself to that matter. I would therefore reject the submission made by counsel for the appellant that his Honour's judgment in some way disclosed error on this ground.

It follows that the Minister was obliged, pursuant to para. 111C(2)(a), to consult representatives of existing television stations, including the appellant, about the proposal to call for applications for a third commercial television licence in the Perth area. But the paragraph must be given a practical and sensible construction. It ought not to be read as requiring consultation at every step of the planning stage. The obligation will be discharged if the Minister, in a case such as this, whether personally or through departmental officers, informs existing licence holders of his proposal, seeks their views about them and takes into account any views or suggestions they may put forward. In some cases his obligation to consult will extend to further consultation concerning these views and suggestions. It is not possible to indicate more precise guidelines. Each case will depend on its own facts. What must be understood is that the consultation needs to be real; it must not be a merely formal or perfunctory exercise.

The next question is when, in the circumstances of a case such as this, must the consultation occur? There is nothing in either s. 82 or s. 111C which expressly requires it to take place before the publication of a notice pursuant to s. 82. In the submission of counsel for the appellant, however, the consultation must take place before the notice is published because the publication of it triggers a process over which the Minister has no control and which will in all probability lead to the grant of an additional licence. In those circumstances, so the submission runs, it follows that consultation must occur prior to the publication of the notice; otherwise it would not serve any useful purpose.

I have reached the conclusion that that submission is correct. Indeed, it was not the subject of any real challenge by counsel for any of the respondents. Their principal contention was that, assuming the Minister to have had an obligation to consult the existing licensees before publication of the notice and assuming no such consultation, that being the hypothesis upon which the matter was argued, there was not to be found in the Act any provision which made it unlawful to publish a notice under s. 82 of the Act. Such breach of obligation as there may have been on the part of the Minister had no legal consequence so far as concerned the validity of the notice and of the inquiry held consequent upon its publication. I regard that as the central question arising for decision in the appeal. It is the question to which I now come.

During the argument there was much discussion about whether the provisions of s. 111C were mandatory or directory, and, if directory, whether they needed to be substantially complied with before one could say that no invalidity would result in the absence of consultation. A number of authorities were referred to. These included Montreal Street Railway Company v. Normandin (1917) A.C. 170, Scurr v. Brisbane City Council (1973) 133 C.L.R. 242, Victoria v. The Commonwealth (1975) 134 C.L.R. 81, particularly per Stephen J. at p. 179, Attorney-General (N.S.W.) ex rel. Franklins Stores Pty Limited v. Lizelle Pty Limited (1977) 2 N.S.W.L.R. 955, particularly per Reynolds J.A. at p. 969, and Tasker v. Fullwood (1978) 1 N.S.W.L.R. 20, especially at pp. 23 - 24. In passing it may be noted that the decision of the Court of Appeal in Lizelle was reversed by the High Court, but not in a way which affected what had been said on the question at issue here; see Editor's note (1977) 2 N.S.W.L.R. at p. 955. These and other authorities are reviewed in Pearce on Statutory Interpretation, 2nd Ed., pp. 169 - 176. After discussing the decision of the New South Wales Court of Appeal in Tasker v. Fullwood (supra), the author concluded his treatment of the subject matter as follows (p. 176):-

"The foregoing (particularly the judgment in Tasker v. Fullwood) seems to have taken the question full circle. The only guiding principle will be the statute and from it the court will have to glean one of three intentions in regard to the designated procedure: (a) that strict compliance is necessary; (b) that substantial compliance is necessary together with the degree of 'substantiality'; or (c) that compliance is not a precondition to the action taken. Breach of (a) or (b) will result in invalidity but no adverse consequences will flow if (c) is found to apply (unless some separately designated penalty is included in the legislation)."

So the matter is one of statutory interpretation. The appellant will be entitled to succeed if it is decided that compliance with s. 111C as a precondition to the notice provided for in s. 82 needs to be strict or substantial. If no compliance at all is required, then the appeal should be dismissed. Since the matter is one of statutory interpretation, it is important to have regard to the terms of the various sections which are in question.

The first matter to be observed is that there is nothing in either s. 82 or s. 111C which expressly requires consultation to take place before a notice is published. That is not conclusive of the outcome, but in my opinion it provides a strong pointer to the statute not disclosing an intention to invalidate a notice published pursuant to s. 82 in a case where consultation has not taken place.

There are a number of additional considerations. Section 82 is found in Part IIIB of the Act dealing with licences. The Part consists of ss. 80 - 89C inclusive and contains comprehensive provisions dealing with the grant and renewal of both broadcasting and television licences. Such licences are granted and renewed by the Tribunal, not by the Minister. Section 111C is not found in Part IIIB but in Part V which is headed "General". It is necessary to make some reference to the detail of the provisions of Part IIIB and also to some of the provisions of both Part IV and Part V.

Part IIIB opens with s. 80 which contains a number of definitions. Section 81 provides for the grant and renewal of licences by the Tribunal. Sub-section 81(1) provides that, subject to the Act, the Tribunal may grant or renew a licence upon such conditions, and in accordance with such form, as the Tribunal determines. Sub-section 81(3) commences with the words, "A licence for a commercial broadcasting station or for a commercial television station shall not be granted except . . . ". The substance of the section is not important; rather it is the language which is used in the opening words of the provision. In passing, however, it may be noted that the provision is one which forbids the granting of a licence except to a company formed within the limits of the Commonwealth or a Territory and having a share capital. Similar language is used in the opening words of sub-sec. 81(4) dealing with public broadcasting licences and public television licences. These "shall not be granted except to a corporation . . . ".

As earlier mentioned, similar language is used in the opening words of sub-sec. 82(1). They are, "Before a licence is granted . . . the Minister shall publish . . . ". A further example of language of this kind is to be found in the already quoted opening words of sub-sec. 83(6) which are, "The Tribunal shall not refuse to grant a licence to a person unless . . .". The latter provision serves a different purpose from the earlier ones but each of the provisions to which I have referred is expressed in emphatic language either forbidding something to be done unless certain conditions are fulfilled or compelling it to be done unless certain findings are made. The language is that of mandatory provisions which, prima facie, at least, would suggest that strict compliance with them was required.

There is no express reference to s. 111C in sub-sec. 82(1). But there is an inferential reference to it. The sub-section in para. (a) requires the notice to set out an outline of "the specifications to which it is proposed the licence is to be subject". The expression "specification" is defined in sec. 80 as follows:-

"'specification', in relation to a licence, means a specification of any of the following matters:

(a) the nature of the service provided in pursuance of the licence;

(b) the area served in pursuance of the licence;

(c) the purpose of the service provided in pursuance of the licence;

(d) in the case of a public broadcasting licence or public television licence - the special purpose for which the licence is granted;

(e) a matter referred to in section 93, 94, 95 or 96;

(f) a matter that, by virtue of section 111C, falls within the responsibility of the Minister."

The provisions of ss. 93, 94,95 and 96 are to be found in Part IV of the Act which is entitled, "The Commercial Broadcasting Service and the Commercial Television Service". The sections are in Division 4 of the Part which is entitled "Technical Conditions". They deal respectively with the design, installation, maintenance and operation of technical equipment, the situation of commercial television stations, the operating power of commercial broadcasting stations and commercial television stations and the frequencies of commercial broadcasting stations and television stations. All these matters are made subject to the consent, opinion, determination or satisfaction of the Minister. Thus it is provided that a commercial broadcasting station or a commercial television station shall be situated at such place and that the operating power of such a station shall be such as the Minister determines (ss. 94 and 95).

Particularly because of the reference to ss. 93, 94, 95 and 96 in para. (e) of the definition of "specification" in sub-sec. 80(1), I find it difficult to understand the significance of the reference to s. 111C of the Act in para. (f) of the definition. This difficulty extends to understanding what the draftsman of the legislation had in mind when he required a notice published pursuant to sub-sec. 82(1) to set out an outline of the specifications to which it was proposed the licence should be subject. The matter was discussed with counsel during the argument, but no satisfactory answer was suggested.

It was said that the matters to which reference was being made were not matters falling within para. (a), but rather within paras. (b) and (c) of the sub-section. These provide that it is to be the responsibility of the Minister to determine standards and practices in relation to the technical equipment used for broadcasting and television services and the operation of such equipment and to investigate and correct interference with the transmission and reception of broadcasting and television programmes. Both these matters, however, are encompassed by ss. 93 and 96 which are made subject to the consent or approval of the Minister in the case of equipment and his satisfaction in relation to frequencies. It seems hardly necessary on account of technical considerations to have included a reference to s. 111C in the definition of "specification" in the light of the fact that technical matters were already provided for in para. (e) thereof. My puzzlement about the significance of para. (f) of the definition of "specification" in sub-sec. 80(1) therefore remains. But the matter is not of importance in the resolution of the present problem unless the reference to s. 111C in Part 111B is capable itself of suggesting dependence of the steps to be taken pursuant to s. 82 on prior compliance with the provisions of s. 111C. In my view, whatever the significance of the reference to s. 111C in s. 80, and thus s. 82, may be, it does not suggest any such dependence. It thus has no bearing on the outcome of the case. Counsel for the appellant did not suggest that it had.

The analysis that I have undertaken of the provisions of Part 111B of the Act indicates that where the legislature wishes to be specific about compliance with conditions it uses clear language to indicate its intention. That being the case, it must be said that it would be rather strange, if the legislature had intended that other conditions needed to be complied with before a valid notice could be published under sub-sec. 82(1), that it did not make its meaning plain.

Moreover, the public inconvenience of such a conclusion is manifest. Only the Minister and the existing licensees would know whether consultation pursuant to sub-sec. 111C(1) had been undertaken. Potential applicants for a licence would not have direct knowledge and, if they were to endeavour to find out whether there had been consultation, might receive conflicting replies as to whether there had been consultation within the meaning of the section. They might therefore need to undertake the preparation of an application, including the taking of advice on various matters, some technical, some financial and some legal, all involving substantial time and expenditure, without being able to be assured that the notice and the inquiry to which it would give rise would be valid. It seems hardly likely that the legislature, particularly bearing in mind the language which it has used, would have intended such a consequence.

The inconvenience does not stop at the door of potential applicants. The Minister, having decided to invoke the procedure that is likely to lead to the grant of a licence, would usually have given the matter some detailed consideration and would probably, although not necessarily, have a prima facie view that a licence should be granted provided a suitable applicant was forthcoming. These decisions I have already concluded are part of the planning of television services or broadcasting services in Australia. They are decisions made in the public interest, that is to say in the interests of the community that the licence is intended to serve. The decisions would be likely to be publicly announced and would create expectations in the minds of substantial numbers of the local community.

The object of the Act is to make available broadcasting and television services of an appropriate standard and quality to as many people in Australia as is consistent with the operation of the various stations being viable. The principal object of the Act is thus to benefit members of the listening or viewing public. It is not to benefit potential applicants for commercial or other licences, although, because of the financial rewards that are available, this may be one of its consequences. But this is only because, in the view of Parliament, it is desirable that there be a commercial television service and a commercial broadcasting service, and that companies providing those services must operate profitably to remain viable undertakings. To invoke the inquiry process and thus bring about a situation in which it is likely that a licence will be granted is thus to do an act which in line with the Minister's policy, is designed to benefit large sections of the various communities in which licence applications are called for. To hold that a notice, and thus an inquiry, were invalidated by a failure to consult as to which no member of the public, let alone any potential applicant, could have any direct knowledge, would work the manifest public inconvenience which is referred to in the Normandin case (supra).

This is not a case where there can be any question of substantial compliance as opposed to strict compliance. What s. 111C requires is consultation. No doubt there are degrees of consultation. Sometimes consultation may be detailed and ongoing. At others, perhaps because of the attitude of parties, it may be less extensive because, although the consultation is no less real than it is in cases falling within the first category, it becomes apparent at an early stage that the consultation is serving no purpose. So this is a case, like the Normandin case, where there must either be strict compliance or no compliance at all. There is no room for the middle ground of substantial compliance.

The factors I have mentioned are, I think, those which should guide one in determining what the legislature intended. In my opinion they point clearly to the conclusion that failure to consult pursuant to s. 111C before a notice is published does not invalidate the notice and consequently does not invalidate an inquiry triggered as a result of its publication.

It follows that I am in agreement with Toohey J. in the answers to be given to the questions which were posed. The judgment for the respondents which had the effect of dismissing the proceedings was correctly entered. I would dismiss the appeal from that judgment with costs. I would also dismiss with costs the appeal brought, by leave, and the cross appeal, from the interlocutory orders answering the questions which were formulated.

JUDGE3

The appellant, TVW Enterprises Limited, is the licensee pursuant to the Broadcasting and Television Act, 1942 ("the Act") of a commercial television station in the Perth metropolitan area, TVW 7. The first respondent, Michael John Duffy, is the Minister of State responsible for the administration of the Act. The second respondent, the Australian Broadcasting Tribunal, is a body corporate the functions of which include the grant of licences under the Act (see s.16(1). The third respondents are companies in whose names applications were lodged with the Tribunal in about August 1984 seeking the grant of a further commercial television licence for the Perth Metropolitan Television Area.

On 7 May 1984, the Minister published a notice pursuant to s.82 of the Act inviting applications for, or written submissions relating to, the grant of a licence for a commercial television station within the Perth Metropolitan Television Area. The validity of this notice is attacked by the appellant in these proceedings.

Section 82 is located in Part IIIB of the Act which deals with licences. By s.81(1), subject to the Act, the Tribunal may grant a licence upon such conditions, and in accordance with such form, as the Tribunal determines. By s.81(2), in determining the conditions upon which or the form in accordance with which a licence is to be granted, the Tribunal is to have due regard to the need for the commercial viability of the television stations in the area to be served in pursuance of the licence. By s.82(1), before a licence is granted, the Minister shall publish a notice (a) setting out an outline of the "specifications" to which it is proposed the licence is to be subject and (b) notifying interested persons that, within nominated times, they may lodge with the Tribunal applications for the grant of a licence or lodge written submissions relating to the grant of the licence. Provision is made for the Tribunal to make available for public inspection particulars of the applicants for the licence (s.82(2)) and for the Tribunal to serve on the applicants copies of all submissions lodged (s.82(3)). These steps are to be taken within specified times and within a further period of 21 days an applicant may lodge with the Tribunal his reply to any submission (s.82(4)).

As has already been noted, a notice under s.82(1) must, inter alia, set out an outline of the "specifications" to which it is proposed the licence be subject (s.82(1)(a)). "Specification" in relation to a licence is defined in s.80(1) to mean a specification of any of the following matters: (a) the nature of the service; (b) the area served; (c) the purpose of the service; (d) in the case of a public television licence, the special purpose for which the licence is granted; (e) a matter referred to in ss.93, 94, 95 or 96 (which are provisions dealing with technical conditions such as the design of technical equipment and the operating power of a television station); (f) a matter, that "by virtue of s.111C, falls within the responsibility of the Minister." (emphasis added)

Section 111C, which is central to the appellant's argument in support of its challenge to the validity of the notice given under s.82(1), is found in Part V of the Act. That Part is headed "General". The provision, which has the marginal note "Additional Functions of Minister", is in these terms -

"111C.(1) It shall be the responsibility of the Minister -

(a) to plan the development of broadcasting and television services in Australia;

(b) to determine standards and practices in relation to the technical equipment used for broadcasting and television services and the operation of such equipment;

(c) to investigate and correct interference with the transmission and reception of broadcasting and television programs; and

(d) to conduct examinations, or make or approve arrangements for the conduct of examinations, and to issue certificates, as to the competence of persons to operate technical equipment used for broadcasting and television services.

(2) In discharging his responsibilities under paragraph (1)(a), the Minister shall -

(a) consult representatives of broadcasting stations and television stations in relation to matters affecting those stations; and

(b) if there is a Broadcasting Council - consult with that Council in relation to matters generally affecting broadcasting and television in Australia." (emphasis added)

Shortly stated, the appellant's case is that the Minister's decision to publish the notice under s.82(1) inviting applications for a licence involved planning the development of television services in Australia for the purposes of s.111C(1)(a); that, in contravention of the provisions of s.111C(2), the Minister failed to consult with representatives of television stations on the matter; and that as a result the Minister's notice under s.82(1) and all subsequent proceedings were invalid. The respondents deny any failure by the Minister to consult; they argue further that if, contrary to their assertions, there was such a failure, no invalidity of any of the proceedings occurred. The respondents also raise a number of discretionary defences, including a defence of delay.

Before going to the substantial questions which arise on the appeal, it is necessary to describe further the scheme of the legislation and to outline the history of the litigation.

Consideration by the Tribunal of applications for licences is dealt with by s.83 which is in Part IIIB of the Act. By s.83(1) the Tribunal shall, subject to exceptions not presently material, hold an inquiry into the grant of the licence. The inquiry is to be held as soon as practicable after the expiration of the period referred to in s.82(4). An applicant for a licence must undertake that he will, if the licence is granted to him, (a) comply with the conditions of the licence; (b) in the case, inter alia, of a commercial television station, provide an adequate and comprehensive service in pursuance of the licence; and (c) encourage, inter alia, the provision of programs wholly or substantially produced in Australia (s.83(5)). By s.83(6), the Tribunal shall not refuse to grant a licence to a person unless it has held an inquiry into the grant of a licence and (a) the person has failed to give an undertaking in accordance with s.83(5); (b) the Tribunal is satisfied that the grant of the licence would be contrary to a provision of the Act; (c) it appears to the Tribunal, having regard only to certain matters (outlined below), that it is advisable in the public interest to refuse to grant the licence to the person; (d) it appears to the Tribunal that a licence of the kind contemplated by the matters set out, inter alia, in a notice under s.82(1)(a) should not be granted; and (e) the circumstances are such that, if it granted the licence to the person, the Tribunal would have reasonable grounds for believing that a person would be contravening, inter alia, s.92, a provision imposing a limitation upon interests in commercial television stations.

The matters of public interest to which the Tribunal is to have regard for the purposes of s.83(6)(c) are as follows -

"(i) . . . . that the person -
(A) is a fit and proper person to hold the licence;

(B) has the financial, technical and management capabilities necessary effectively to operate the relevant broadcasting station or television station, as the case may be; and

(C) is otherwise capable of complying with the conditions of the licence;

(ii) where -

(A) the licence is a commercial licence (other than a licence for a metropolitan commercial broadcasting station as defined by sub-section 90(1) or a licence referred to in paragraph 92(1)(c) or a supplementary licence; and

(B) in the opinion of the Tribunal, in the area to be served in pursuance of the licence, satisfactory reception is being obtained of programs from one or more broadcasting or television stations operated by virtue of a licence of licences of a kind to which sub-sub-paragraph (A) applies,

the need to avoid undue concentration of influence, whether direct or indirect, on the person and on the company or companies holding the other licence of licences;

(iii) where, in the opinion of the Tribunal, in the area to be served in pursuance of the licence, satisfactory reception is being obtained of programs from one or more broadcasting or television stations - the need for the commercial viability of that station or those stations;"

Where there are two or more applicants for a licence, each of whom is a person to whom, but for this provision, the Tribunal would be required to grant the licence, the Tribunal is to grant the licence to the most suitable applicant (s.83(9)).

After the provisions of s.83 have been complied with in relation to a licence, and before the grant of a licence, the Minister is to determine the specifications applicable to the licence which, in the case of a matter referred to in para.(a), (b), (c) or (d) of the definition of "specification" in s.80(1), are to be consistent with or substantially consistent with the matters set out in, inter alia, a notice under s.82(1)(a) and is to notify the Tribunal accordingly (s.84(1)). Upon the grant of a licence, the conditions of the licence are (a) the specifications so determined by the Minister; and (b) such conditions, not relating to matters referred to in the definition of "specification" in s.80(1), as are imposed by the Tribunal (s.84(2)).

In December 1984, the Tribunal commenced to hold an inquiry pursuant to s.83(1). Shortly thereafter, by its application and statement of claim in these proceedings, the appellant, as applicant, applied for declarations that the notice given under s.82(1) was invalid and that the inquiry held pursuant to the notice was also invalid. Further or other relief, not then specified, was also sought. In its statement of claim, the appellant recited the history of the matter and alleged a contravention of s.111C(2) in the manner already indicated. It asserted that s.111C(2) was a mandatory provision and that the consequence of failure to comply with its requirements was the invalidation of the notice under s.82(1) and the subsequent proceedings. (Although it was by no means obvious, we were informed during argument that the proceedings were purportedly brought under s.39B of the Judiciary Act, 1903, a matter which raises its own problems to which reference will later be made. It will suffice for present purposes to note that no specific relief of the kind described in s.39B of the Judiciary Act was then sought; in particular, no claim was made for any injunctive relief. No attempt has been made by the appellant to seek any interim injunction restraining the Tribunal from continuing to proceed with its inquiry. The Tribunal commenced its formal hearing in February 1985 and that hearing is still proceeding). The respondents filed defences resisting the claims for relief on the grounds, factual and legal, already indicated.

On 28 March 1985, on a motion by the Minister, Toohey, J. made an order for the statement of a case and questions for decision pursuant to o.29 r.2. It was ordered that "The facts as agreed between the (parties) for the purposes only of and as the basis for the questions referred are": there follows a statement of the history of the matter substantially in the terms already recited. However, specific reference should be made to para. (vii) which deals with the effect of the introduction of a further commercial television licence for the Perth Metropolitan Television Area in these terms :-

"(vii)The introduction of a further commercial television licence for the Perth metropolitan area and environs: (a) constitutes development of television services in Australia;. . . . " (emphasis added)

By orders made on 12 July 1985, the questions reserved and the answers given by Toohey, J. were as follows:-

Question

1. Was the first respondent under any obligation to consult with the applicant within the meaning of s.111C(2)(a) of the Act prior to publication of the notice:

(a) about or concerning the publication of the notice;

(b) about or concerning the development of television services in Australia by the introduction of a further commercial television station licence to serve an area within the Perth Metropolitan Television Area;

(c) about or concerning planningthe development of broadcasting and television services in Australia;

(d) about or concerning any matter affecting the applicant, or a specified class of television station including the applicant, to a greater extent or more particularly than television stations in Australia generally.

Answer

(a) No;

(b) Yes;

(c) Yes;

(d) It is unnecessary to answer this question.

Question

2. Were such other ministers referred to in para.3 of section A (a reference to the Minister's predecessors in office) under any obligation to consult with the applicant within the meaning of s.111C(2)(a) of the Act in relation to any of the matters mentioned in para.1 hereof in discharging their responsibilities under s.111C(1)(a) of the Act?

Answer

Yes; see the answers to Question 1.

Question

3. If the answer to Question 1 is in any respect in the affirmative, in each case was the notice thereby invalid and of no effect?

Answer

No.

Question

4. If the answer to Question 3 is in any respect in the affirmative, is the inquiry referred to in para.8 above invalid and void?

Answer

This question does not fall to be answered.

Question

5. If the answer to Questions 1 and 2 are in any respect in the affirmative and the first respondent failed or neglected to consult the applicant in relation to any of the matters mentioned in para.1 hereof but the other ministers abovementioned did consult the applicant within the meaning of s.111C(2) (a) of the Act as referred to in Question 2 above, in each case was the notice invalid and of no effect?

Answer

No.

Question

6. If the answer to Question 5 is in the affirmative, is the inquiry invalid and void?

Answer

This question does not fall to be answered.

Question

7. If the answers to Questions 1 and 2 are in any respect in the affirmative and the first respondent and the other ministers abovementioned failed or neglected to consult the applicant within the meaning of s.111C(2) (a) of the Act as referred to in Questions 1 and 2 respectively, was the notice invalid and of no effect?

Answer

No.

Question

8. If the answer to Question 7 is in the affirmative, is the inquiry invalid and void?
Answer

This question does not fall to be answered.

The appellant appeals from the answers given by. Toohey, J. to stated questions 1(a), 3, 4, 7 and 8, contending that the answers to each of those questions should have been in the affirmative. The second and third respondents cross-appeal from the answer given by Toohey, J. to question 1(b), contending that the answer should have been in the negative.

In the course of argument on the appeal, the question was raised whether the orders made by Toohey, J. by way of answer to the questions reserved were not final but interlocutory only, thus requiring leave to appeal pursuant to s.24(1A) of the Federal Court of Australia Act, 1976; and whether this Court has jurisdiction to deal with the matter. It was conceded that no injunction was claimed and that merely declaratory relief was sought (see Lane, The Australian Federal System, 2nd Ed. at p.1020; cf. Judiciary Act, s.39B). No claim was made for relief under the Administrative Decisions (Judicial Review) Act, 1977. Further, the second and third named third respondents contended that because certain fundamental facts assumed by his Honour were merely hypothetical at that stage, given their alternative contention, yet to be determined, that the consultation required by s.111C(2) in this case had in fact and in law taken place, the decision of Toohey, J. was no more than an advisory opinion. They submitted that the questions answered by the learned Judge were beyond federal judicial power and were not a "judgment, decree or order" of the Court constituted by a single Judge for the purposes of s.24(1) of the Federal Court of Australia Act (cf. The Minister for Works for the Government of Western Australia v. Civil and Civic Pty. Limited (1967) 116 C.L.R. 273).

The appellant having sought an adjournment of the hearing of the appeal so that certain further applications could be made to Toohey, J., the learned Judge then made a number of orders. In the first place, on 20 September 1985, his Honour granted the appellant leave to amend its application and statement of claim so as to seek additional relief in the form of permanent injunctions against the Tribunal from proceeding further with its inquiry and against the Minister from taking steps consequent upon any decision of the Tribunal. Thus, any doubts as to the jurisdiction of the Court under s.39B of the Judiciary Act were removed.

Next, the learned Judge ordered that the proceedings instituted by the appellant be dismissed pursuant to 0.29 r.4 for the reasons he gave in answering the questions reserved. The appellant then immediately appealed from this order as a final order disposing of the proceedings. In support of this appeal, the appellant adopted the contentions advanced by it in the appeal against the learned Judge's earlier order answering the questions reserved. In the second appeal, no doubt exists as to the jurisdiction of this Court to entertain the matter since it is an an appeal from a judgment dismissing a claim, even if it be assumed, for the purpose of argument, that the consultation required by s.111C(2) did not occur (cf. Yango Pastoral Company Pty. Limited v. First Chicago Australia Limited (1978) 139 C.L.R. 410 at pp.412, 419-20).

Finally, assuming that only an interlocutory order was involved, we granted the appellant leave to appeal from the orders of the learned Judge made on 12 July 1985 answering the questions reserved. There were thus two appeals before the Court, each appeal raising the same point of substance, namely, the construction and application in the circumstances of the case of s.111C(1)(a) and (2) of the Act.

The points of law for determination in the proceedings wer formulated by the appellant in its statement of claim as follows:-

"10. TVW will contend as a matter of law that

(a) the issue of a notice pursuant to section 82(1) of the Act necessarily requires the Minister to discharge his responsibility pursuant to section 111C(1) (a) of the Act;

(b) The validity of any such notice is dependent upon the Minister validly discharging his responsibility pursuant to sections 111C(1) (a) and 111(2) (a)."

In my opinion, neither proposition can be sustained.

In support of the first of these propositions, the appellant argues that the Minister's decision to publish the statutory notice and thus to initiate the statutory inquiry for the third Perth commercial television licence should be characterised as something done to "plan the development of broadcasting and television services in Australia" within the meaning of s.111C(1) (a).

In my opinion, the verb "to plan" where used in s.111C(1) (a) was intended to have its ordinary meaning, that is to say, "to arrange a scheme for" and the term "development" where used in s.111C(1) (a) was intended to have its dictionary meaning of "evolution, growth or expansion" (see the Macquarie Dictionary). It follows, I think, that the action taken by the Minister in issuing the notice and the reasoning process which led to the decision to initiate the inquiry are not necessarily of the character sought to be attributed to it by the appellant for, in truth, in terms of its character, the conduct of the Minister in this regard must be viewed as equivocal. In the ultimate analysis, the question is one of fact and, subject to one matter to which reference will be made later, there is no finding of fact made by the learned Judge, or relevant concession made by the respondents, that the Minister's decision to give the statutory notice was actually something done by him in the course of his planning the development of broadcasting and television services in Australia. As a matter of fact, that conduct may well have had that character but it may equally as well have had a different character. In short, the Minister's action in deciding to give the statutory notice may have been something done otherwise than by way of the preparation of a scheme for the evolution, growth or expansion of television services in Australia.

There is a statement, it is true, in para.1.A(vii) of the agreed facts that "the introduction of a further commercial television licence. . . constitutes development of television services in Australia." But this cannot be determinative of the question. For one thing, any such agreement between the parties could not be conclusive so far as any question of law is involved in the construction of s.111C(1) (a). Moreover, the agreement in sub-para.(vii) does not involve any concession that what was done by the Minister constituted the planning of the development of television services in Australia. Rather, the agreement of the parties reflected in sub-para.(vii) seems to have been arrived at upon the assumed basis that the grant of an additional licence in Perth amounts to a development of television services in the sense that the provision of a further facility is growth in the number of services available. On that assumption, the agreement, so far as it goes, correctly states the position. But the question of construction of s.111C(1) (a) remains unresolved.

In my view, s.111C(1) (a) imposes upon the Minister the specific responsibility of formulating policy in the area of the evolution, growth or expansion of television services in Australia. In this role, which is accurately described in the marginal note as an "additional" function of his, the Minister is concerned with the matters of principle which arise for consideration in that field. The implementation of the policy, whether by resort to the machinery of a notice under s.82(1) or otherwise, is a different matter. No doubt the Act imposes obligations and confers functions upon the Minister in the latter respect either generally or incidentally or, as in the case of s.82(1) itself, in a specific instance. But the source of the statutory function or duty to implement policy formulated pursuant to s.111C(1) (a). As has been said, that provision is concerned with matters of policy only. The duty or power to implement that policy is to be found elsewhere and, for present purposes, the source of that duty or power is to be found in s.82(1). The relevant distinction is indicated in the structure of the legislation itself. Section 111C(1) (a) is located in the "General" part of the Act, whereas s.82(1) is in the part dealing with licences.

In short, in my opinion, s.111C(1) (a) is a free-standing provision which imposes a statutory obligation upon the Minister which is collateral to, yet independent of, other specific statutory functions such as his power to issue a notice pursuant to s.82(1). The latter power may, in particular instance, be exercised in the implementation of a policy formulated pursuant to the functions conferred by s.111C(1) (a). Equally, the decision to issue such a notice may not be so based. A notice may be given under s.82(1) in circumstances which have no connection with the formulation of policy in the areas specified by s.111C(1) (a) or with the implementation of that policy. That is to say, in my view, there is no necessary connection or nexus between the planning contemplated by s.111C(1) (a) and the giving of a notice pursuant to s.82(1) (a).

The appellant sought to establish the existence of a relevant nexus between s.111C(1) (a) and s.82(1) by pointing to the definition of "specification" in s.80(1) as picked up by s.82(1), to the extent that by s.82(1) (a) the notice published by the Minister is to set out "an outline of the specifications to which it is proposed the licence is to be subject". As has been said, the definition of "specification" in s.80(1) includes "(f) a matter that, by virtue of section 111C, falls within the responsibility of the Minister." Although s.111C(1) confers a number of responsibilities upon the Minister, it would seem that only the matters dealt with in sub-paras.(b),(c) and (d) of that provision would be appropriate to be specified in an outline of "specifications" for the purposes of the statutory notice. That is to say, the questions of principle contemplated to be dealt with pursuant to s.111C(1) (a) are inapposite for expression as conditions of the grant of licence. I would construe s.82(1) (a) as picking up only limbs (b),(c) and (d) of s.111(c)(1) for this purpose.

In the absence of any demonstrated nexus between the planning provided for by s.111C(1) (a) and the publication of the notice under s.82(1), the appellant must fail in its first contention.

But, in any event, even if the appellant could make good its first proposition, its second proposition of law cannot, in my opinion, be maintained for the reasons given earlier by Toohey, J. and for the reasons now given by Sheppard, J.

Accepting fully the importance of consultation for present purposes pursuant to s.111C(2) (a) (see Sinfield v. London Transport Executive (1970) 1 Ch. 550 at p.558), the question of invalidation of the action challenged is one of construction of the statute. For present purposes, the decision and reasoning of the Court of Appeal of the Supreme Court of New South Wales in Attorney-General (N.S.W.) Ex Rel. Franklins Stores Pty. Ltd. v. Lizelle Pty. Ltd. (1977) 2 N.S.W.L.R. 955 is, I think, squarely in point. There, by a direction purportedly given under an ordinance made under the Local Government Act, 1919 (N.S.W.), a council in control of certain land was directed to consult with another authority in respect of certain applications for permission to carry out development on the land. The council purported to give consent to an application for development on the land but did not consult with the authority. It was held, for reasons not presently material, that the direction was invalid. It was further held that, even if the direction were valid, the failure to consult did not invalidate the consent. Reynolds, J.A. said (at p.964):-

"For over one hundred years since such cases as Liverpool Borough Bank v. Turner, Caldow v. Pixell and Howard v. Bodington the basic rule has been as stated by Denman J. in Caldow v. Pixell, namely, that the scope and object of the statute are the only guides.

The provision with which we are here concerned is one whereunder a council is, for planning purposes, required to seek the views of some other person or authority before dealing with a development application and, by implication, to pay heed to those views. It is a process to be carried out in private between the council and the referee, and it will be evidenced in their respective files and nowhere be of public record. The consent which may issue following such consultation will not, in the ordinary course, recite the fact of consultation, much less its absence.

Upon the basis of the consent so issued, companies may be formed, capital subscribed, buildings erected and commitments of all kinds made. Is the legislature to be presumed to intend that, at any time after the issue of the consent, its validity is to be open to impeachment to the detriment of all who acted on the faith of it? Did the legislature intend that those who wished to rely upon a development consent should seek to ascertain whether in the particular case consultation was required and, if so, whether the private files of the council and the referee evidenced it? Did it intend that, if the answers to inquiry were favourable, but incorrect, the person acting should remain unprotected? To my mind these questions suggest an answer. The presumption is that Parliament intends no injustice: F v. F; Maxwell, op.cit., 208)."

His Honour concluded (at p.969) -

"This is a case in which, in accordance with Normandin's case, the unexpressed intention of the legislature must be discerned by a consideration of the scope and object of the legislature. Myers J. in Attorney-General v. J.N. Perry Constructions Pty. Ltd. adverted to many of the considerations. The injustice or inconvenience to others who have no actual control over the council in exercising its duty is manifest. There would, as this case demonstrates, be a serious encroachment upon the fields of certainty and, in my opinion, the more objectionable course is to construe the statute as mandatory or imperative in respect of a requirement of consultation or of substantial consultation.

I am, therefore, of the view that, even if consultation was required, the consent issued was not, by reason of its absence, invalid."

In my opinion, similar considerations apply in the present case. The consequences of a failure to consult pursuant to s.111C(2) (a) may usefully be contrasted with the position which would arise if a licence were to be purportedly granted by the Tribunal in the absence of the publication of the notice required by s.82(1). In that event, the reasoning in Scurr v. Brisbane City Council (1973) 133 C.L.R. 242 would be applicable so that, to borrow the language of Stephen, J. in that case (at p.255), the giving of such notice would be construed as a "condition precedent to any consideration of (an) application by the (Tribunal)." However, for the reasons already given, I do not think it is possible to construe s.111C so as to make the consultative process called for by s.111C(2) a condition precedent to the publication of a notice pursuant to s.82(1).

I would answer the questions reserved in the terms of Toohey, J., with one exception. The learned Judge answered question 1(b) in the affirmative. Because the answer to that question may depend upon questions of fact yet to be resolved, I would answer that question: "It is unnecessary to answer this question." Subject to that, I would dismiss the first appeal with costs. It must also follow that, in my view, the cross-appeal should be dismissed with costs. I would also dismiss the second appeal with costs.