Wesgo Communications Pty Limited v Australian Broadcasting Tribunal

[1989] HCATrans 234

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sll0 of 1989

B e t w e e n -

WESGO COMMUNICATIONS PTY LIMITED

Applicant

and

AUSTRALIAN BROADCASTING TRIBUNAL

First Respondent

GOSFORD COMMUNICATIONS LIMITED

Second Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

Wesgo

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 OCTOBER 1989, AT 11.31 AM

Copyright in the High Court of Australia

Sl T6/1 /RB 1 13/10/89

MR K.R. HANDLEY, ~C:  In this matter, if the Court pleases, I

appear or the applicant with my learned friend,

MR J.T. GLEESON. (instructed by Minter Ellison)

MR D.M.J. BENNETT, QC:  May it please the Court, I appear

for the first respondent with my learned friend

MR M.K. MINEHAN. (instructed by the Australian

Government Solicitor.

MR A. ROBERTSON: May it please the Court, I appear for the

second respondent. (instructed by Blake Dawson

Waldron)

MR HANDLEY Your Honours, we have completed an outline of submissions. I can be brief in addition to what

is in our outline, and I would seek to take

Your Honours to about two pages of the Full Court decision at page 50 and following which as it were pose the issue and will focus it for the benefit

of the Court.	At page 50, line 10, the Full Court
say that:

the submissions of counsel for the ABT should

be accepted. The expression "the need for

the commerical viability" of a service appears

in several provisions of Part IIIB of the

BROADCASTING ACT ...... In s.81, the ABT is

concerned with the determination of conditions

upon which a licence is to be granted or renewed;

in s.83, the ABT is concerned with the antecedent
question of whether a licence should be granted

at all. Thus, the ABT may decide that it

is not advisable in the public interest to

refuse to grant a licence, having regard to

the need for the commercial viability of existing

services, but, nevertheless, in determining
the conditions upon which the new licence
is to be granted, the ABT shall have regard
to the need for commercial viability of the

services in the area to be served by the new

licence.

Over the page, line 22:  In our view, when in sub-s. 83(6) the

legislature directed the attention of the

ABT to the need for the commercial viability

of the service or services provided pursuant
to other licences, it was dealing with a practical
question which turned upon the financial feasibility

of the operations conducted by the relevant

licensee with respect to the relevant service.

In one sence, it is true, as Wesgo emphasised,

that the service comprises the programmes that are broadcast. But the provision of

the service is both the object of the activities

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of the licensee, and at the same time an integral

part of them, such that the programmes do

not stand apart from the general conduct of
the operations ..... It is too limited a reading

of the expression in sub-s. 83(6) "the commercial

viability of the service .	. provided pursuant
to the other licence .	. ", to treat it as

referring merely to the programme material

provided to the listening public in the service

area.

Of course, in our submission, there is a tension

there between the words they quote and their conclusion
which throws up the short point of statutory construction

which we seek to reargue in this Court.

The final passage on page 53, line 5:

It does not follow that the concepts attending the use of the expression "an adequate and

comprehensive service pursuant to the licence"

in sub-s. 83(5), also provide a guide to the

meaning of the expression "the need for the

commercial via.bility of the service or services

provided pursuant to the other licence or

other licences" in sub-s. 83(6). In this latter sub-section, attention is directed

to the need for commercial viability. The

programme material does not stand apart from

the general conduct of the operations of the

licensee. What is involved is a practical

test designed to enable the ABT to look at the provision of the relevant service by a

particular licensee, and to consider if it

is commercially viable or not in the sense of financially sustainable. Merely to look at the programmes without regard to the person

who broadcasts them, in our view, says nothing

of any assistance as to the financial sustainability.

In our submission, Your Honours, there is posed

there a neat question, a short question, but an important one. We have given evidence as to the number

of other inquiries pending before the Tribunal

which raise the same question and, in our submission,

the Full Federal Court have adopted a construction

which forecloses investigation into the quality

of the service and focuses attention merely on

the dollars and cents, and that is surprising,

in our submission, prima facie a surprising construction

of an Act such as this and we would submit that

it has important aspects of public interest relating
to the quality of broadcasting services. It is

clearly a very short point and, in our submission,

because of the fact that a general federal statute

and many inquiries are pending raise the same question,

it is one for special leave. If the Court pleases.

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MASON CJ:  Yes, Mr Bennett.

MR BENNETT:  May it please the Court. We have prepared a

one-page outline, Your Honours, and attached to

it some statutory and parliamentary material and

I hand that to the Court.

Your Honours, we do not dispute the importance

of the issue but we submit that there is insufficient
doubt, and indeed it is quite clear, that the change
my learned friend suggests to have been made was

not made and was not intended to be made.

The parliamentary material which I will take

Your Honours to in a moment makes it crystal clear

that what happened was that under the former

legislation it was necessary for each transmitter

to be licensed as an independent item and one had

to go through an elaborate procedure in relation

to that. To avoid that administrative problem,

these amendments were passed which said, in effect,
that we look at a service area rather than at

transmission facilities and we licence the broadcasting

to	that area rather than the broadcasting through
particular facilities.	What was meant by a "service-

based" licence was simply that it was based on

the service area rather than the individual transmitter.

That change was just never intended to have

the dramatic effect which my learned friend suggests

which is that when one looks to the commercial

viability of what exists, one looks to its programming

rather than to the commercial viability of the

business concerned. What one is concerned with,

both before and after, we would submit, is the

commercial viability of the business of operating

the broadcasting to that area.

DEANE J:	You mean "business" in the abstract?
MR BENNETT:	The business, Your Honour. There is a business

which was the business of running the transmitter,

is now the business of broadcasting to that area.

But that business is what one has to look at the

viability of.

DEANE J: But, I mean does one say, "Will the abstract business

of supplying services in that area remain commercially

viable?" or does one go to the particular company

providing the services and look at its commercial

viability?

MR BENNETT:	No, Your Honour, one does not look at its other assets and liabilities outside the particular station.
One isolates that, if it has other interests.
DEANE J:	In other words, a licence to provide that service
will still remain something worthwhile?

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MR BENNETT:	Yes, Your Honour.	May I just show Your Honours

the - we have annexed all the statutes which I

need not take Your Honours to because the changes

are simple, as has been indicated, except to show

Your Honours from the second group of documents,
which is the amending Act, that it is section 32(j)

which achieves the amendment. That becomes important

because of the way that amendment is trivialized

in the parliamentary debates. May I now take

Your Honors to the explanatory memorandum which

is half-way through that material.	Do Your Honours
have that?

MASON CJ:	Yes.
MR BENNETT:	On page 2 of that material Your Honours see,

at the top of the page, "Service-based Amendments". The Bill provides for extensive amendments

of the Principal Act to incorporate the "service-

based" concept and associated terminology.

The Act is presently based upon the licensing

of different classes of "stations" defined

by their technical characteristics; eg main

transmitting stations and translator (re-broadcasting

stations. As a consequence, separate licences

are required for a licensee to establish translator
stations within the service area of the main
transmitting station licence.

4.       Under the "service-based" licensing arrangements

proposed by this Bill licensees would be authorised

to provide a radio or television service within

defined service areas.

Just stopping there, it is almost a pun to say,

as my learned friend submitted, that the service-

based amendments in some way suggests that the

quality of the service is what is now being concentrated

on. That is really a pun on the word "service"

in the phrase "service area". It is simply changing

from looking at the technology of how you do it

to looking at the area you are servicing.	The transmitting facilities needed to provide
adequate reception within the service area
of the licence would be largely irrelevant
from the licensing viewpoint. Broadcasting
transmitters would be authorised by the Minister
under a related licence warrant.
5. In summary, application of the "service-

based" concept involves the following key

amendments:

Then there is a list of various matters. Then

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it sets out notes on clauses, and if Your Honours

go to page 13, Your Honours see -

DEANE J:  Can I distract you for a moment? I am having a

little bit of trouble understanding the

significance of this. Say the existing service

consists predominantly of Australian drama which

is very expensive. Now, on your argument or on

your construction, can the requirements or the

costs of the existing programmes, that is Australian

drama, be taken into account in assessing the commercial

viability of the existing service or must one say,

No, they can provide Mickey Mouse cartoons, which

are very popular there from 8 am until midnight

and they will make an even greater profit than

• they are making on their Australian drama, because they have a great bank of them in their library.

MR BENNETT:  Your Honour, the answer to that is that one

looks only at the commercial viability of the business

under this requirement.

DEANE J:	Then what is the answer to the question?
MR BENNETT:	The answer is that one would - there might be

a question as to whether the station intended to

make that change and whether it was going to be

viable - there might be,questions of that sort -

but basically one would look only at the commercial

viability of the business and if it could be viable

in some outher way, one would no doubt take that

into account. What the section refers to is the

commercial viability of providing an adequate and

comprehensive service when one incorporates it but

that is not really the inquiry which is being made

here.

What my friend seeks to have the Tribunal the existing service.

look at is the commercial viability of continuing

MASON CJ:	The very same programmes?
MR BENNETT:	That is what my friend says, yes.
MASON CJ:	So that was the dispute really, as it arose in

the Tribunal in the first instance?

MR BENNETT:  Yes, Your Honour. I should say this: there

is some confusion which Your Honours may detect

in the judgment which arises this way - and it

is one of the problems with four levels of appeal

that it appears to have been submitted to

Mr Justice Sheppard at first instance that the

error the Tribunal fell into was looking at the

commercial viability of the company running the

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station. Now, we successfully demonstrated to

the Full Court that the Tribunal had not done that.

We conceded that would have been quite wrong and

the Full Court accepted that the Tribunal had not

done that and that point seems to have gone now and we are now looking at the real issue, which

is does it mean the commercial viability of the

existing programming or does it mean the commercial

viability of the station?

GAUDRON J: Conducting an adequate and comprehensive- - -

MR BENNETT:	Yes.
GAUDRON J:	And complying with the requirements of its

licence under the Act?

DEANE J:	So it does not mean what I asked you, the commercial
viability of providing Australian dramai if that
is what they are doing?
MR BENNET~	If that is wbat they are doing, no, Your Honour.

DEANE J: It does mean Mickey Mouse cartoons, if that is

more commercially viable?

MR BENNETT: If it is an adequate and comprehensive programme,

Your Honour. It wau::.d still have to pass certain

other tests. One would not be able to go to that

extreme because of other provisions of the Act.

That is simply not what this section of the Act

is dealing with. That is dealt with in other places.

DEANE J: It seems to make very black and white what one would have thought would better be a matter of

judgment.

MR BENNETT:  Your Hflnour, it is a question of what this

provision is designed to do and what is achieved

in other ways by the Act. If the station broadcast

Mickey Mouse 24 hours a day it might have some

problems with its licence from other points of view.

DEANE J:	You would say that cannot be what you look at because if they did that they would lose their television
licence.

MR BENNETT:  Yes, Your Honour. But certainly if a station

were broadcasting particularly unprofitable

programmes because it had a monopoly, and those

programmes were seen in some way as desirable in

the public interest, then I would have to concede

that in looking at this section one would look

only at the commercial viability of the business

of running the company.

DEANE J:  But at a level acceptable to set standards?

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MR BENNETT:	Yes, Your Honour.	Now, on page 13, paragraph 50,

there are a list of clauses and included, as

Your Honours see, is 32(j). Those clauses:

substitute the "service area overlap" concept
for reference in corresponding provisions
in the exist Act which require the Tribunal

..... to form an opinion as to whether the

programs of a licensed station ..... are

satisfactorily received.

And examples are given. So it is an across-the-

board consequential amendment.

MASON CJ:  Mr Bennett, it does not appear clearly to me that

the Full Court actually accepted the interpretation

for which you are contending. If you look at

page 53, there are a number of passages that seem

to me perhaps to be slightly ambiguous. If you

look at page 53, particularly the two sentences

commencing at line 15, and you will notice the

last sentence in the paragraph is:

Merely to look at the programmes without regard

to the person who broadcasts them, in our

view, says nothing of any assistance as to

the financial sustainability.

Now, that appears to me to involve a rejection

of the notion that you just look at the existing

programmes and that would entirely accord with

the submission that you are making to the Court.

But does it not also contain the element that you

must look at the person.

MR BENNETT:  Only, Your Honour, for the purpose of seeing

what the person is doing in relation to the business.

There is a passage where they make it clear that

it is common ground that one does not look at the

company itself.

MASON CJ: If you can identify that passage, that may allay

my concern.

MR BENNETT:  Page 49, Your Honour, line 15. Indeed it was

the slightly loose use of language of the type

which the Full Court itself may have fallen into

at page 53 which had led to that confusion in

the lower court. Your Honour sees there:

Before us, neither the ABT nor Wesgo contended for a construction which would involve a

consideration of the commercial viability

of the licensee company, seen as an entity

conducting operations which might go beyond

the provision of services pursuant to the

licence in question.

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MASON CJ:	Yes.
MR BENNETT:	Now, if I may take Your Honours to the second

reading speech in the House of Representatives. Your Honours see it begins at page 2423 and the

relevant part commences on page 2425.	At the bottom
of the first column Mr Duffy says this:

The supplementary licence provisions

of the Act are already based on the concept

of licensing services to a specified service

area. Every effort has been made in the drafting

of the service-based licensing provisions
of the Bill to make as little change as possible
to the policy effect of the current Act.

As far as these provisions are concerned the objective of the Government is to change from

a technologically-based licensing system

to a service-based licensing system and not

to intrtoduce changes which are not consequential

to the adoption of the service-based licensing

system.

And he explains what he means by that:

The main features of the service-based

amendments are as follows: Broadcasting -

radio and television - is to be regulated
by reference to broadcasting services provided

to communities within service areas rather than by reference to broadcasting stations

defined by their technological characteristics.

The Minister will be empowered to deisgnate

(a) classes of licencses by reference to the

nature of the service ..... a service area .....

all broadcasting transmission

and so on.

MASON CJ:	Mr Bennett, we need not trouble you further.
MR BENNETT: If Your Honours please.
MASON CJ:	Yes, Mr Handley.

MR HANDLEY:  Two matters, Your Honours. I would wish to

rely myself on some of the passages on page 2425,

the left-hand column, second paragraph, in the

House of Representatives debate:

The cornerstone of the service-based

concept for planning and licensing is the

service area for a licence; that is, the area
containing communities which the licensee

is authorised to serve. From the licensing

viewpoint, whether the broadcasting service

is delivered by means of one transmitter,

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or a combination of transmitters, will be

largely irrelevant. Emphasis will be placed

upon the nature and purpose of the licenced

service and the nature and interests of the

communities in the service area. These concepts

are already present in the licensing requirements

of the Australian Broadcasting Tribunal.

Broadcasting transmission facilities needed

to provide adequate reception within the service

area will be authorised merely as technical

condictions

the last sentence is not relevant. But, Your Honours,

it is, in my submission, in that earlier parts

of that paragraph implicit that there is a change

from mere dollars and cents involved in these

amendments and a recognition by the Government

that that was the case. A couple of lines on the

right-hand page - right-hand column:

The main features of the service-based

amendments are as follows: Broadcasting -

radio and television - is to be regulated
by reference to broadcasting services provided

to communities -

and "broadcasting services provided to communities",

in our submission, Your Honours, refer to programmes.

Our submission is that there is the question of

construction which arises on the language of the

statute as a result of the amendment; that in the

end the search for meaning in the second reading

speeches involves the pursuit of a will-o'-the-wisp

and just as this Court in the BOLTON and BEANE

case ultimately acted upon the language of the

statute dealing with visiting forces and not on

Sir Garfield Barwick's speech in the House of

Representatives, in this case, if one focuses on

the language of the statute the point of construction

is fairly posed and, in my submission, the case

is one for special leave.

MASON CJ:  Thank you, Mr Handley.

Notwithstanding the general application of the prov is ions of section·t;~6) of t.he BROADCASTING

ACT 1942 we are not persuaded that the application

raises any question of general principle. The

case is therefore not appropriate for the grant

of special leave. The application is refused.

MR BENNETT:	I ask for costs.
MASON CJ:	You do not resist that, Mr Handley?
MR HANDLEY:	No, Your Honour.

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MR ROBERTSON:  My client also seeks costs. I had assumed

that the Court was proceeding on the basis that
the second respondent would adopt the submissions

of the first respondent which it does, and did.

MR HANDLEY:  The second respondent did not appear in the Federal Court, Your Honour, by counsel. I do not

know whether ..... case for making an order in

favour of the Tribunal but not in favour of the second respondent. I do not want to develop it

at any length.

MASON CJ:  The application will be dismissed with costs as

against both respondents.

AT 11.57 AM THE MATTER WAS ADJOURNED SINE DIE

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