Laws, R.J.S. v Australian Broadcasting Tribunal [1988] FCA 409

JUDGMENT No. 409%.88_

CATCHWORDS

BROADCASTING AND TELEVISION - radio program standards ~ broadcast of programs alleged to be in breach of standards - complaints to Australian Broadcasting Tribunal - investigation of complaints ~ decision to hold inquiry - whether validity of complaints pre-judged -— right of broadcaster to be heard nefore decision made to hold inquiry - whether broadcaster entitled to natural justice before inquiry held - whether Tribunal biased - whether deczsion to hold inquiry should be quashed

Broadcasting Act 1942, ss. 8, 16, 17A, 17C, 119

RICHARD JOHN SINCLAIR LAWS v. AUSTRALIAN BROADCASTING TRIBUNAL

No. G 102 of 1988

Morling J. 5 August 1988

Sydney

RECEIVED

- 5 AUG 1988

FEDERAL COURT OF AUSTRALIA

\ PRINCIPAL SOON AEGISTAY

IN THE FEDERAL COURT OF AUSTRALIA

) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G 102 of 1988 ) )

GENERAL DIVISION

BETWEEN: RICHARD JOHN SINCLAIR LAWS Applicant AND: AUSTRALIAN BROADCASTING TRIBUNAL Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER : Morling J.

DATE OF ORDER : 5 August 1988

WHERE NADE

Sydney

THE COURT ORDERS:

Ll.

tu

us

NOTE:

that the Australian Broadcasting Tribunal not proceed with the inquiry referred to in its letter of 11 December 1987 to the applaicant while the Chairman, or Vice-Chairman of the Tribunal or Mr Bailey are present in their

capacities as members of the Tribunal.

That the application be otherwise dismissed. That there be no order as to costs.

That these orders be not entered betore 15

August 1988.

Settlement and entry of orders 1% dealt vith in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT ROGISTRY No. G 102 of 1988

GENERAL DIVISION

BETWEEN: RICHARD JOHN SINCLAIR LAWS

Applicant

AYD: AUSTRALIAN BROADCASTING TRIBUNAL Respondent MORLING J. 5 August 1988

REASONS FOR JUDGMENT

In these pvroce*dings Mr John Laws socks orders under

the Administrative Decrsions (Judicial Review) Act 1977

quashing decisions of the Australian Broadcasting Tribunal relating to several programs broadcast by him in March 1987 and a declaration that the Tribunal be restrained from Further investigating the matters which are the subject of its decisions.

The applicant is a well known radio personality. In March 1987 his radio programs were broadcast to a very Large audience through Station 2GB Sydney end numerous otne1l radio

stations in New South Wales and in other States Betveen

uy

11 and 23 ifarch 1987 some of che prog_ars contained comments hy the applicant on Federal government expenditures. Some o£ these comments were directed at the level of expenditure on

Aboriginal welfare activities. These comments gave rise to

to

complaints by a number of persons, including the Minister for Aboriginal Affairs. The complainrs were made to the Australian Broadcasting Tribunal which 15 charged with the function, inter alia, of determining the standards to be observed by licensees of commercial radiv stations in respect

of the broadcasting cf programs: seo s.16(1)(d) of the

Broadcasting Act 1942 ("the Act").

Pursuant to $s.16(1\}(d) the Tribunal has laid down a number of radio broadcasting standards. One of these standards, "RPS 3", is that a licensee may not transmit a program which is likely to incite or perpetuate hatred against or gratuitously vilify any person or group on the basis of,

unter alia, ethnicity, nationality or race.

On 8 Aprist 1987 che Tribunal wrote to the Manager of 2GB, requesting tapes of the programs of which complaint had been made, and enclosing the Minister's letter of complaint. In April and May corresponderce passed between the Tribunal and 2GB in which reference t'as made by the radio station to written and on-air apologies which had been given to Aborigines who had claimed to have been offended by the programs. Surprisingly, the Tribunal neither directed any correspondence ta Mr Laws nor sought any explanation from nim.

On " September 1937 che Trrgural victe to 22GB requesting a meeting as 1t had formed the view that breaches of RPS 3 may have occurred. The meeting was held on

30 September. It was attended by the Chaitman = and

uw

Vice-Chairman of the Tribunal and by another of 1ts members, Mr Barley. 2GB vas represented by Mr Duncan, 1ts General Manager, and by Mr Cox, 1¢S Program Director. The Chairman stated that the Tribunal had formed the view that itr Laws' programs may have breached RPS 2 in that "they were likely to incite and perpetuate hatred against a group on the basis of racc". She said that if the Tribunal concluded that the orograms had been

made in breach of RPS 3 1t could exercise 1ts powers under

s.119 of the Act. That section provides as follows: "119. (1) Where a person has - (a) presented in a live broadcast the whole

or a part of a program; or

(b) passed or selected for broadcasting the wnole or a part of a program (being a program that was subsequently

broadcast),

in respect of which, or in respect of the bread- casting of which, the program standards were not complied with or this Act was contravened, the Tribunal may, by direction having effect either indefinitely or for a period determined by the

Tribunal - (c) prohibit the person from presenting programs in live broadcasts or passing . or selecting programs for broadcasting;

or (d) impose restrictions on the presenting

by the person of programs in live broadcasts or on the passing or selecting by the person of programs for

broadcasting. (2) The Tribunal shall net give a direction co a person under suh-sectron (1* anless at nes Fes notice in writing sarvid on tre persir, called upon

eis C the person to show cause, within a period speciried by the Tribunal, why the direction should not be given.

3) A person shall not contravene a direction e

fa ( of the Tribunal under this section."

Mr Duncan pointed out that the relevant programs had extended over a period of some days and had included comments on grants to the Aboriginal community and were part of a lengthier debate about government grants generally. Although Mr Duncan did not say that he was speaking on Mr Laws' behalf, the Tribunal might well have thought that he was. With the benefit of hindsight, 1t would have been much better 1f Mr Laws himself had been asked to attend the meeting. The meeting concluded when the Chairman of the Tribunal again drew Mr Duncan's attention to s.119 and said that the record of the

meeting would be sent to 2GB for its comments.

In due course a copy of the record of the meeting was sent to Mr Duncan. Shortly thereafter 2GB's solicitors vrote to the Tribunal stating, inter alia, that their client had considered very carefully the views expressed by the [fribunal and had discussed those siews with Mr Laws. However, Mr Laws has no recollection of any such discussion. According to him, he was not aware until 30 September 1987 that the Tribunal had taken any action in relation to the complaints about the programs he hed broadcast in March. He said that he was advised by Messrs Duncar and Cox on 30 September that earlier that day they had attended a meeting with the Tribunal. He said that when he was advised that the meeting had been held he

complained that he had rot been told about 1t and said that he

should have been tnere.

Mr Laws denred that on 10 September 1987 Mr Duncan

sent him a written memo drawing his attention to a letter which

Ul

he (Duncan) had received from the Tribunal referring to the complaints and stating that tne Tribunal believed it '7ould be useful to discuss them "with the management of 2GB eat this

Stage of the investigations".

According to Mr Laws, after being advised cf the Meeting with the Tribunal on 30 September he became very angry

and asked Duncan and Cox whether he should make arrangements to

see the Tribunal himself. He was told by them that the matter was "more or less all over", He said he was angry because he had not been given an opportunity to represent himself. Ona

prior occasion when a complaznt had been made about one of his programs he had approached the Tribunal in company sitn the

station management.

Mr Laws said that the understanding he gained from Duncan and Cox on 30 September was "that they had been chastised and that 1t would be pointless for me to pursue it by approaching the Tribunal directly. The feeling was ''leave it to us'." He said that he was not really content to take the course suggested to him but that he had very little choice. He agreed that after his discussion vith Duncan and Cox he was prepared to leave to them "the handling of the situation that concerned not only myself but 2GB". Hovever he qualified this answer by saying that as far @s he "ies tancerned th-re was

nothing to deal with. AS 1€ Sa@lc: ic was done - f:rished.

I am satisfied that Mr Laws gave his evidence to the

best of his recollection. However, I think his memory of some

1"

of the details of what happened and vhat «as said in 1987 1s probably imperfect. This 1s read:ly understandable as his conversations with liessrs Duncan and Cox appear to have been informal and no written record was xept of them. In particular, I tnink that more extensive discussion must nave occurred between Mr Laws and Messrs Duncan and Cov afte: the latter met wrth the Tribunal than Mr Laws recollects. Otherwise, I think 2GB's salicitors would not have written to

the Tribunal in the terms that they did.

On 24 November 1687 the Tribunal constituted by the Chairman, Vice-Chairman and Mr Barley issued a Jengthy document dealing with their investigation of the complaints about Mr Laws' programs. The document dealt with the programs in

considerable detail and included the following statements:

"Tt 2s the decision of the fribunal that an broadcasting the John Laws' program on 11, 12, 13, 15, 18, 19, 20 and 23 March 1987, 2GB breached Radio Program Standard 3 on each of those days."

"Having determined that the John Laws' programs broadcast by 2GB on che ezght days specified breached Padio Program Standard 3, the Triounal Members who made these decisions will recommend to the Tribunal thac 1t hold an inquiry to consider whether its powers under s.119 or $.101, or both, of the Broadcasting and Television Act 1942 should be exercised. The Tribunal cannot exercise its powers under these sections without holding a public inguiry. ...

Section 119 emvowers the Tribunal in srohioit : person from presenting programs in live broadcasts, or passing or selecting programs for broadcast, or to impose restrictions op a person in relation to those activities.

Sectizon 101 empowers the Tribunal to 1ssuc reprimands and admonishments to a licensee and to

~

direct the licensee to publish such reprimands or admonishments.

Summary.

The John Laws' programs broadcast by 2GB on 11, 12, 13, 15, 18, 19, 20 and 23 March 1987 breached Radio Program Standard 3, and it follows that a contravention of ss.99(1A) of the Act occurred. it 18 proposed to recommend to the Tribunal that it hold an inauilty to consider whether it should exercise 1ts power under 5.119 or s.101, or both."

On 27 November 1987 tne Tribunal decided to hold an inquiry into whether it should exercise its powers under all or any of ss. 85, 101 and 119 of the Act. It determined that the

1ssues to be determined in the inguiry were:

"4h. Whetner che Tribunal should exercise its power under section 85 to impose a condizion or conditions on the licence for 2GB requiring the adoption of management procedures with relation to 'talkback' shows and the provision of programs to other licensees ain order to prevent furctner breaches of section 99(1A);

2. Whether the 'Tribunal should exercise its power under section 101 to issue a written reprimand or admonishment to the licensee of 2GB;

3. If a wratten reprimand or admonishment 15 1ssued whether the Tribunal should direct the licensee of 2GB to publish the reprimand or admonishment, and 1f so, in what form and manner;

4. Whether the Tr:bunal should erercise 1ts power under section 119 to zssue directions:

(1) prohibiting John Laws frou presenting programs un live hroacecests ct

(11) imposing restrictions on the

presenting by Jchn Laws of programs in live broadcasts;

5. If the Tribunal issues a direction under section 119 for what perz:od should it be decermined to have effect."

8.

On 10 December an article appeated in ABTEE, the journal published by the fribunal, under the heading "Broadcasting Tribunal finds that broadcast by Jnhr Laws referring to Aborigines breached Program Standard relating to racial hatred". The article 18, in substance, a summary of

the Tribunal's decision of 24 November.

On 1l December the Tribunal wrote to Mr Laws advising him that the Tribunal had commenced the inquiry and furnishing him with a notice of the inquiry in which the issues for determination were set out. This appears to have been the

first and only communication sent by the Tribunal to Mr Laws.

On 2 Feoruary 1988 proceedings were commenced in this Court. Thereafter, on 29 April 1988 an off:cer o% the Tribunal, Miss Jane Paramore, was interviewed on 2GB. ln the

course of discussing the proceedings Miss Paramore said:

"In the case of John Laws he did 10 days of - 10 consecutive days of editorialised matetial about Aboriginals, various schemes to assist Aboriginals and* took calls as a result of that editorialisation where he consistently referred to Aboriginal people in derogatory terms and consistently implied things that suggested that they were getting preferential treatment and that they were no-hopers and that 1 they got up off their backsides they could f1 everything up for themselves anyway.

The language used, his response to different voint of vie explain that what he was savzir 2 some of cacse schemes was not really eccurate vos bullying overbearing and they did not get a fair go, whereas people who rang to reinforce the sorts of things that he was putting in his editorial got open slather and elicited further comments from him which were derogatory.

9.

The applicant seeks an order quasning the Tripunal's decision of 24 November 1987 that breaches of RPS 2 had occurred. The substantial ground upon wh:ch this decision was attacked was that the Tribunal was obliged to observe tne rules of natural justice when making the decision and that it failed to do so. The Tribunal contends that it was not obliged to observe the rules of natural justice in reaching that decision. It contends, in the alternative, that 1f 1t was so obliged, it

observed those rules.

Before considering the contentions of the parties it

1S necessary to examine the provisions of the Broadcasting Act

dealing with the Tribunal's powers to make decisions which may ultimately lead to the giving of a direction under s$.119 Some of the more important provisions of the Act are referred

to in my judgment in Bond & Ors v Australian Broadcasting

Tribunal (9 June 1988 - unreported). For present purpescs, 1t 1S necessary to refer only to those provisions of the Act relevant to the exercise by the Tribunal of 1ts power to give

directions under s.119.

Division 3 of Part It of the Act contains provisions dealing, inter alia, with the exercise py the I'ribunal of what are described as its "substantive powers". The powers of the Tribunal to determine program stendards and to give directions

under s.119 are substartive povers is.17A(2) 4ald and 4

ay)

rd.

For the purpose of exercising its powers and functions

under the Act, the Tribunal has power to make such orders, give

To.

such directions and do all such things as 2t thinks fit

(s.17(1)). The Tribunal nas power to require a licensee to supply it with anformation relating to 3ts 'functions (s.124(2)). If, as a result of inquiries made py it, the

Tribunal proposes cto exercise any of its substantive powers, 1t 1s required to hold an tnquiry into the proposed exercise of the power (17C(1)). Tt has a discretion to hold an inquiry where 1t proposes to exercise one of its powers other than a substantive power (s.17C/2)). It may also, in its discretion, hold an inquiry into any matter relating to the operation of the Act or any matter relating to broadcasting services (s.17C(3)). Such inquiries are normally held in public (s.19(1)) but may, 1n certain specified circumstances, be held 1n private (s.19(2)). The Tribunal may take evidence on oath or affirmation znd may summon a person to appear before it to give evidence and produce documents (s.21(1) and /2)). In proceedings before tne Tribunal at an inquiry, a parity to proceedings may be represented by a barrister, solicitor or agent (s.22(1)).

The Tribunal 1s required to make a thorough investigation into all matters relevant to the inquiry, is not bound by legal rules of evidence and, subject to s.19, as required to ensure that every party to proceedings at an

inquiry 18 g:ven a reasonable opportunity to preserit h*s case

(s.25).

The Australian Broadcasting Tribunal (Inquiries)

Regulations apply to an inquiry under s.17¢C(1). Where the

11.

Tribunal commences an inquiry it 18 reguired to publish a notice specifying the issues to be considered in the :nquiry (Reg. 9(3)(b)). Tf the fribunal is satisfied that the issues to be considered in an inquiry, as stated in the notice Originally published, should be changed, 1t 2s required to determine new issues to be considered in tne inquiry. Where those issues are substantially different from the issues stated in the original notice it 18 required to publish a further

notice setting out the issues (Reg. 12).

The terms of s.119 have already been referred to. It 1s important to note that no direction can be given to a person under s.119(1l) until the Tribunal has given written notice to the person calling on him to show cause why the direction

should not be given.

In summary, the Act lays down the foilowing orocedure for dealing with complaints of the kind made about "1 Laws' programs:

Ifa 'complaint 1s made to the Tribunal 1t may investig- ate it under its general powers. If, having considered the matter, the Tribunal proposes to exercise 1ts powers under s.119 1t aust held a public inguiry under s.17C(1}. At such er angusry the aeison against whom che compvaine hes veen mace ts 3°97 advance notice of the issues to be determined at the anqulry. He may be represented at tne inquiry by

solicitor and counsel and the Tribunal must ensure that

12.

he 1S given a reasonable opportunity to present his case. If tne Tribunal ultimately determines tnat the complaint 1S justified and that a radio program standard nas not been observed ina live hroadcast, 1t cannot give a direction under s.119(1) to tne person who presented the program until it has first called upon h2m in writing to show cause why the dzrection

should not be given.

Mr Hughes Q.C., senior counsel for Mr Laws, submitted that the Tribunal's examination of che complaints 'as made under s.17C(2), hut t do not think this was the case. There is nothing in tne Tribunal's records to indicate that when the meeting of 30 September was held with Messis Duncan and Cox the

Tribunal was intending cto, or did, hold an inquiry wnrder

s.17C(2). At that stage, it had not adopted any proposal to

exercise any of its powers and there was no occasion for tne holding of an inquiry under $.17C(2). At that stage of its consideration of the matter the Tribunal was merely ec¢ercising 1ts general powers under ss. 17(1) and 124(2). That tnis was

so appears from its decision, which was merely to recommend

that an inquiry be held.

In my opznion there 15 10 warrant fer imoartirg into

the Act a requirement that the Triounel should obsers: the

ron

rules of natural justice when 1

ndertavinc ihe prol

"inary

'.

unvestigation which may precede an inquiry under s.17C/l). It 1s well settled tnat a statutory authority naving power to

affect the rights of a person :s bound to act fairly, in the

sense of according procedural fairness and, 1f appropriate, to afford him the opportunity of a hearing before exercising the

power: see Twist v the Council of the Municipality 9f Randwick

(1976) 136 C.u.R. 106 at pp. 109 and 112; Heatley v Tasmanian

Racing and Gaming Commission /1977) 137 C.L.R. 187 at p. 490;

Kioa v West (1985) 159 C.L.R. 550 at p.584. But in making the

decision referred to in its letter of 24 Ncvempner 1987 the Tribunal was not exercising any power which affected lr Laws' rights. That was merely a decision to put in train the steps necessary to be taken for the holding of an inqu2zry under s.17¢c(1). The document issued by the Tribunal on 24 Movember was styled "Investigation of Complaints about the John Laws' Programs of 11~23 March 1987" and, as appears from 1¢s terms the members of the Tribunal who made the investigation decided no more than to recommend to the Tribunal that it hold an inquiry to consider vhether 1t should exercise 1ts powers under s.119, or s.101, or both. The Tribunal was powerless to affect Mr Laws' rights unt1) such an inquiry had heen held and a notice in writing had been served on him pursuant to

s.119(2).

As 1S pointed out in De Smith's Judicial Review of

Administrative Action, 4th ed. at p.234, the aegree of

proximity between an investigation and a decisicn Cirectly

rr

adverse to che interests of @ nartv vro claims a rign be

ip)

ae

heard 18 important. A versoz "mo 1

?

ato ¢

7) iD

m

'J 0D fo)

r

1p

o7eu

a

27a

preliminary inquiry before deciding to recommend whether a formal hearing or inuguiry (which may lead to a decision

affecting rights) should take place 1s not normally obliged to

14.

observe the rules of natural justice: see Nedical Board of

Queensland v Byrne (1958) 100 C.E.R. £82 at 0.591 and Wiseman v

Borneman (1971) A.C. 297 at p.308.

The Tribunal's duty to hold a public inquiry before giving a direction under s.119(1) and its obligation under $.119(2) to give a show cause notice are, in my opinzon, clear indications in the legislation that there 1s no obligation on the Tribunal ts observe the rules of natural justice at the preliminary stage when a complaint 1s considered and a

recommendation made that a full inquiry be held. In Twist

(supra), 1t was held tnat the existence of a complete right of appeal was indicative of a legislative intention that the citizen's only right of redress against the Council's fa:lure to give him an opportunity to be heard before malbing a demolition order was by way of appeal: see 136 C.L.R. at pp.113-117. In my opinzon the present 1s a much strong=r case

than Twist. In that case the order made by the Council had,

of itself, the potential to radically affect the rights of the person to whom it was issued. In the present case the

.

decision made on 24 November had no such potential.

For these reasons I do not think that the members of the Tribunal who decided on 24 November to recommend chat an unquiry be held were under any obl:gatzion to afforded Mi Lows the opportunity of putting his ces? i2 tnem aeicle they dec:ced to

make the recommendation.

L5.

Had I been of the op:nion that the members of the Tribunal were obliged to observe the rules of natural justice when making the recommendation cf 24 November, I would have found that those rules were not observed. Although they may have laboured under the impression that Messrs Duncen and Cox were Speaking for Mr Laws at the meeting held on 39 September, those gentlemen were not in fact his spokesmen. It 1s true that after discussing the matter with them upon their return from the meeting, Mr Laws decided to leave the matter in their hands. But at that stage the Tribunal had given no indication that it was intending to take action against him. It would have been open to the Tribunal to take action under s.101 of the Act only against 2GB. It may be conceded that ths would have been an unusual course for the Tribunal to have adopted but there was no obligation on Mr Laws to enquire of the

Tribunal whether it was intending to take action against him.

As events transpired, 1t was unfortunate that Mr Laws was dissuaded by the executives of 2GB from approaching the Tribunal, since that led to the Tribunal being deprived of Mr Laws' answers to the complaints made about his programs. I must confess to some surprise that in the light of the correspondence directed by the Tribunal to 26GB before 30 September, Messrs Duncan and Cox neither asked Mr Laws to accompany them to the meeting with che Tribunal nor cbtained his authority to spea\. on Ais benall ané svt his sia. 3 the case to the Tribunal. Nevertheless, in the absence of

evidence from them denying Mr Laws' account of what happened, I

see no reason to reject Mr Laws' evidence and If am satisfied

16.

that, probably through inadverterce, the Tribunal did not afford him any opportunity to answer the criticisms of his programs. However, *or tne reasons I have given, I am cf the opinion that there was no abligation on the Tribunal, <t that stage of 1ts consideration of the matter, to afford Nr Lays the

opportunity of putting subm2ssions to it.

The second decis:zon that the applicant seelhs to have quashed 1s the decision taken oy the Tribunal on 27 'lovember 1987 to hoid an inquiry under s.17C(1) of the Act concerning the exercise 92 any of its powers under ss. 85, 101 and 119 of the Act. It was submicted that the decision to nold the inquiry vas so unreasonable that no reasonable person could have made 1t and@ thac 2t was, under the circumstances, ar abuse of the Tribunal's power under s.17C(1l). It was also submitted that the Tribunal had exhibited bias against Mr Laws and that an order shovld be made permanently staying the proposed inquiry. The Tribunal's bias was said to emerge from its decision to hold the inaguiry after having predetermined the question whether RPS 3 had been breached, from the publication of the tribunal's decision in its magazine, and 'from the

remarks made by Miss Paramore when interviewed on 2GB.

Mr Hughes Q.C. did not press an argument thai the decision to hold the inguirv was inval:d because the f:1bunal

did not propose to erere:se énv of its susstentive po-er

we

This was the point upon which the decision in Bond 'supra)

turned. On the contrary, it was asserted that the evidence

established that the Tribunal was not only proposing to

17.

exercise its power under s.119, but also that 1t had firmly decided in advance of holding the irgquiry to ese¢re2se the power

adversely to lir Laws.

In my opinion, the attack on the deczsion to hold the inquiry falters when account 1s taken of the cerms of 5.17C(1) and of the fact that it will not be incumbent on the three members who have already dealt with the matter to sit on the Tribunal when it holds che inguiry. Section 17C(1) places a statutory obligation on the Tribunal to hold an inquiry in any case where 1t provoses to exercise one of its substantive powers. The present is just such a case, since the giving of a direction to Mr Laws under s.119 would be an exercise of the

substantive power referred to in $.17A(2)(j).

An Act that tequires a tribunal to hold an inquiry into, and adjudicate upon a proposal of whicn 1t 1s 2:tseli the author is likely to give rise to cthe sort of problems which have arisen in the present case. Nevertheless, this 1s how the relevant provisions of the Broadcasting Act are framed.

As Murphy J. pointed out in Builders' Registration Board of

Queensland v Rauber (1983) 47 A.L.R. 55 at 9.56, the mixing of

administrative, adjudicative and other functions 1S common in trade and securities commissions ene professional disciplinary

bodies, See also 2. v Federal Court in Ben'ruptcy, << nerte

Lowenstein (19384 39 C.L.F. 373 and

St Leonards Municipality (1969) 121 C.L.R. 309.

rs

18.

There 15 no doubt that the courts will restrain a tribunal which may be reasonably suspected by fair-minded people of having prejudged the case unless by reason of the terms of the relcvant legislation or of necessity or waiver the course propcsead to pe taken 18 authorized: R v Comnonwealth

Conciliation and Arbitration Commission; Ex parte Angliss

Group (1969) 122 C.L.R. 546 at p.553-4; Rv Watson; E,. parte

Armstrong (1976) 136 C.L.R. 248 at p.256-63 and Suilders'

Registration Board of Queensland v Rauber (1983) 47 A.L.R. 55

at pp. 62 and 68. In the present case, the statements made in the document of 24 November by the Chairman, Vice-Chairman and Mr Bailey woula, in my opinion, lead a fair-mirded person reasonably tc suspect that they had predetermined the yuestion whether Mr Laws had Fatled to observe RPS 3 in the programs he broadcast in March 1987. Those statements went much further than suggesting that there may have been a failure t»% observe RPS 3. They were tantamount to a pos2tive finding that such a

failure had been clearly established.

However, there will be no need for the three members of the Tribunal who made the recommendation on 24 November to $1t on the Tribunal when it embarks on the inquiry. The Tribunal consists of a Chairman, a Vice-Chairman and at least one other member but not more than six other memhers /s.8(1)). There 1S no evidence as te t79 umber of menkbers 72f the Trabunal but 1t was scteted fram the bas tecle ky colnsei for the Tribunal that there were sufficient members of 1t to vermit

the proposed inquiry to be conducted by Tribunal members other

than the three members who recommended that it be held. The

19.

fact that those three oersons expressed particular views on 24 November by no means commits the other members of the Tribunal to the same views. Counsel for the 'Tribunal indicated during the course of argument chat none of the members tvho considered the matter on 24 November would sit on the inquiry. Having heard from Mr Laws, the Tribunal may reach a view different from that formed by the three members on 24 November. TE it does not, and if the Tribunal decides to give a direction to Mr Laws under s.119(1), 1t will be open to him to have the Tribural's decision reviewed by the

Administrative Appeals Tribunal: (s.119A(1)(k)).

In these circumstances no ground 1s made out for the making of an order quashing the decision to hold the proposed

unquiry. However, an order should be made under s.16(1)(da) of

Tribunal not proceed with the inquiry while the Chairman, Vice-Chairman or Mr Bailey are present in their capacities as members of the Tribunal. Counsel for the [fribunal proffered an undertaking to the Court that these three persons would not sit as members of the Tribunai wher it held the inquiry, but I think the applicant 1s entitled to have the protection of an

order of the Court.

I do not think that che arecicte in the magazine or what was said by Miss Paramore on 2658 amouvced to mor: than a repetition of the vzrevs expressed in che document of 24 November. Moreover, there 15 no justification for

attributing Miss Paramore's views to those members of the

20.

Trabunal who will constitute it for the purposes of conducting

the inquiry under s.17C(1).

It was also submitted that Mr Laws would be prejudiced at the proposed inquiry because a long time had elapsed since the programs were broadcast and because he was not notified of the proposal to hold the inquiry until December 1987. By this time, so 1t was submitted, evidence which would otherwise have been available to him had been lost. In particular, it was said that tapes of other programs broadcast at about the same time as the impugned programs have been erased. It was said that 1f these tapes were available they would afford support for Mr Laws' contention that, looked at in their true perspective, the impugned programs did not lb1each

RPS 3.

This 18 not a matter that invalidates the proposed inguiry or justifies an order staying it. It 1s not suggested that Mr Laws 1s unable to give an account, in general terms, of the programs which are no longer available on tape. It will be open to him to give his own account of those programs and of the context in which the impugned programs were broadcast. The tapes of the eight programs of which complaint 1s made are,

of course, still available.

I order that the Australian Broadcasting Tribunal not proceed with the inquiry referred to an its letter of 11 December 1987 to the applicant while the Chaitman, or

Vice-Chairman of the Tribunal or Mr Bailey are present in their

21.

capacitics as members of the Tribunal. Otherwise, the application 1s dismissed. In all the circumstances there will be no order as to costs. The orders are not to be entered

before 15 August 1988.

I certify that this and the twenty (20) preceding pages are a true copy of the Reasons for Judgment of his Honour Mr Justice MorJing.

Associate: v/ ) ah

Date: S

Counsel for applicant: E.[f. Hughes Q.C. with L. Davies and

F

Roos ; \ASR T. D. Cc.

T. Weigall instructed by: Hunt & Hunt

Hilton and

Counsel for respondent: 3.8. G.S. Charny

instructed by: Australian Government Solicitor

Date of Hearing: 21 and 22 July 1988

Date of Judgment: 5 August 1988