R v Australian Broadcasting Tribunal; Ex parte 2 HD Pty Ltd [1979] HCA 62

R v Australian Broadcasting Tribunal; Ex parte 2 HD Pty Ltd [1979] HCA 62

The Tribunal's discretion under s. 89A was not confined to refusing consent only where a proposed licence transfer would contravene the Act. Having regard to the general language of s. 89A and the scope and purpose of the Broadcasting and Television Act 1942 Cth, public interest was a relevant consideration. Section 90C set maximum limits on prescribed interests but did not prevent the Tribunal from refusing consent where concentration of ownership below those limits created a real possibility of influence contrary to the interests of the Newcastle public. The Tribunal was therefore entitled to refuse consent, and mandamus did not lie.

Jurisdiction
Australia
Procedural Posture
Application for Writ of Mandamus / Full Court Notice of Motion Under O. 55, R. 2 After the Tribunal Refused Consent to Transfer a Commercial Broadcasting Licence
Outcome
Application for writ of mandamus refused.
Legal Topics
['mandamus' 'administrative Discretion' 'public Interest' 'transfer of Broadcasting Licence' 'concentration of Media Ownership' 'broadcasting and Television Act 1942 Cth']
['administrative Law' 'broadcasting and Telecommunications Law'] ['mandamus' 'administrative Discretion' 'public Interest' 'transfer of Broadcasting Licence' 'concentration of Media Ownership' 'broadcasting and Television Act 1942 Cth']

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Procedural Posture

Application for Writ of Mandamus / Full Court Notice of Motion Under O. 55, R. 2 After the Tribunal Refused Consent to Transfer a Commercial Broadcasting Licence

Legal Issues

  1. 1 ['Whether the Australian Broadcasting Tribunal exceeded the limits of its discretion under s. 89A of the Broadcasting and Television Act 1942 Cth by refusing consent to the licence transfer on public interest grounds.' 'Whether the Tribunal failed to exercise its discretion pursuant to s. 89A properly or at all.' 'Whether s. 90C fixed only maximum limits on prescribed interests or also prevented the Tribunal from refusing consent on public interest grounds where those limits were not exceeded.' 'Whether the Tribunal needed to find a probability, rather than a possibility, that concentration of ownership would lead to influence contrary to the public interest.']

Ratio Decidendi

The Tribunal's discretion under s. 89A was not confined to refusing consent only where a proposed licence transfer would contravene the Act. Having regard to the general language of s. 89A and the scope and purpose of the Broadcasting and Television Act 1942 Cth, public interest was a relevant consideration. Section 90C set maximum limits on prescribed interests but did not prevent the Tribunal from refusing consent where concentration of ownership below those limits created a real possibility of influence contrary to the interests of the Newcastle public. The Tribunal was therefore entitled to refuse consent, and mandamus did not lie.

Court Disposition

Application for writ of mandamus refused.

Orders

  • ['Application for writ of mandamus refused.' "Applicant to pay respondents' costs."]