TVW Enterprises Ltd v. Duffy, M.J. & Ors [1985] FCA 316

= 20r og . /6 "3 Bt

Broadcasting and television - case stated - extent, if any, of

Minister's obligation to consult representatives of existing television stations concerning publication of a notice calling for

applicants, for new television licence and concerning planning

prior to publication - scheme of the licencing provisions of Broadcasting and Television Act - functions of Minister and Tribunal under Act - meaning of "plan the development of ... television services" - meaning of "consult" - effect of failure to

consult upon efficacy of publication of notice and upon Tribunal inguiry consequent upon publication - whether requirement to consult Mandatory or directory - observations concerning usefulness of Mandatory/directory dichotomy when construing

statutory directions - effect of definition of specification as

used in Act.

Words and Phrases - "plan the development of" "consult"

Administrative Decisions (Judicial Review) Act 1977 Federal Court Rules 0.4 r.1, 0.29 r.2, 0.54 r.2, 0.4 r.l

Broadcasting and Television Act 1942 5.18, sub-s.80(1), 66.82,83,111C and Part V

Broadcasting and Television Amendment Act (No. 2) 1976 Acts Interpretation Act 1901 sub-s.13(1)

TVW ENTERPRISES LIMITED v. MICHAEL JOHN DUFFY and AUSTRALIAN

BROADCASTING TRIBUNAL and PERTH TELEVISION LIMITED, WEST COAST TELECASTERS LIMITED, WESTERN TELEVISION LIMITED

No. WA Gll of 1985

TOOHEY J. PERTH

12 JULY 1985

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

JUDGE MAKING ORDER

DATE OF ORDER 2

WHERE MADE:

THE COURT ORDERS THAT:

No. WA Gill of 1985

we www

BETWEEN:

TVW ENTERPRISES GIMITED Applicant and MICHAEL JOHN DUFFY First Respondent and AUSTRALIAN BROADCASTING TRIBUNAL

Second Respondent

and PERTH TELEVISION LIMITED,

WEST COAST TELECASTERS LIMITED, WESTERN TELEVISTON LIMITED

Third Respondents

MINUTE OF ORDER

Toohey J. 12 July 1985

Perth

1. The questions in the case stated be answered as follows:

Question

1. Was the first respondent under any obligation to consult with the applicant within the meaning of

§.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 planning the development of broadcasting and television services in

Australia;

(ad) 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;

(ad) It is unnecessary to answer this question.

Question

Re Were such other ministers referred to in para.3 of section A under any obligation to consult with the applicant within the meaning of 5.111C(2)(a) of the

Act in relation to any of the matters mentioned in

para.1l hereof in discharging their responsibilities

under 5.111C(1)(a) of the Act?

Answer

Yes; see the answers to Question 1.

Question

3. If the answer to Question lis 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 he answered.

Question

If the answers to Questions 1and 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.l hereof but the other ministers abovementioned did consult the applicant within the Meaning of 5.111C(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

If the answers to Questions land 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 s5.111C(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 parties have liberty to apply as to the costs of the case stated and for directions for the further conduct of the

application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

No. WA Gli of 1985

BETWEEN:

TVW ENTERPRISES LIMITED Applicant

and

MICHAEL JOHN DUFFY First Respondent

and

AUSTRALIAN BROADCASTING TRIBUNAL

Second Respondent

and

PERTH TELEVISION LIMITED, WEST COAST TELECASTERS LIMITED, WESTERN TELEVISION LIMITED

Third Respondents

CORAM: TOOHEY J.

12 July 1985

REASONS FOR JUDGMENT The Australian Broadcasting Tribunal ("the Tribunal") is conducting an inquiry relating to the grant of a further commercial television licence within the Perth Metropolitan Television Area. The inquiry has been on foot since early this year and from time to time there have been' applications to this

Court under the provisions of the Administrative Decisions

(Judicial Review) Act 1977 seeking to challenge decisions made by

the Tribunal in the course of its inquiry.

The matter now before the Court goes more deeply and attacks the validity of the inquiry itself. That challenge is made by TVW Enterprises Limited ("TVW") which is the holder of a commercial television licence in the Perth Metropolitan Television Area and opposes the grant of an additional licence. The respondents to the application are as follows. Michael John Duffy ("the Minister") is the Minister responsible for the administration of the Broadcasting and Television Act 1942 ("the Act"). Mention has already been made of the Tribunal. Perth Television Limited ("Perth Television"), West Coast Telecasters Limited ("West Coast Telecasters") and Western Television Limited ("Western Television") each seeks before the Tribunal the grant of

an additional licence in its favour.

On 28 March 1985, on a motion by the Minister, I made an

order for the statement of a case and questions for decision pursuant to 0.29 £r.2 of the Federal Court Rules. The circumstances giving rise to the application and the reasons for making the order appear in my reasons for judgment delivered 28 March. I there expressed some reservations ahout the utility of a case stated for the resolution of issues between the parties and there was some basis for that concern. Nevertheless the procedure has made it possible to reach some conclusions which determine Matters of substance in this application. In essence TVW claims that a notice issued by the Minister on 7 May 1984 inviting

applications for, or written submissions relating to, the grant of

3.

a licence for a commercial television station in the Perth Metropolitan Television Area was invalid and void and that in consequence the inquiry being conducted by the Tribunal is also invalid and void. While the application seeks declarations that the notice and inquiry were and are each invalid and void, the basis of this Court's jurisdiction lies in the challenge made by TUW to a decision made by the Tribunal on 13 December 1984 that the notice was validly issued and refusing to stay or postpone the conduct of the inquiry. The application is not in the form specified by 0.54 r.2 of the Federal Court Rules where the Judicial Review Act is invoked; it is in the form provided by 0.4 vr. 1 where the Court's original jurisdiction is invoked. No objection was taken by any of the respondents on this ground and, the questions of substance being apparent, I propose to deal with then. Nevertheless the situation is unsatisfactory for the decision sought to be attacked is not hefore the Court nor does the application spell out, in terms of s.5 of the Judicial Review

Act, the grounds upon which the applicant relies.

Sub-section 82(1) of the Act 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 he subject; and

(b) notifying interested persons that they may -

reads:

(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 50

specified, written submissions relating to the grant of the licence."

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

"(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

(a4) 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) aif there is a Broadcasting Council - consult with that Council in relation to

Act,

5.

matters generally affecting broadcasting and television in Australia."

The basic question is whether the requirement that the Minister consult representatives of television stations in relation to matters affecting those stations, in discharging his responsibility to plan the development of television services in Australia, extends to the giving of a notice under sub-s.82(1). For the purposes of the case stated, it is an agreed fact that the

Minister, before issuing the notice, did not consult TVW.

While the basic question may be stated quite shortly (though the case stated calls for an answer to a number of questions, all of which have their foundation in the relationship between para.111C(1)(a), sub-s.111C(2) and sub-s.82(1) of the

Act), an answer requires a consideration of the Act generally and

of a number of its provisions.

Putting to one side s.111C, the scheme of the Act is

tolerably clear. Section 82 finds its place in PART IIIB - LICENCES. Sub-section 80(1) defines "licence" to mean a variety of licences including a licence for a commercial television station. Sub-section 81(1) empowers the Tribunal to grant or renew a licence "upon such conditions, and in accordance with such form, as the Tribunal determines". Although sub-s.82(1) makes the publication of a notice by the Minister a condition precedent only to the grant of a licence, the conclusion is inevitable that the Tribunal may not embark upon an inquiry into the granting of a licence except pursuant to such a notice, for it is the notice

that calls upon interested persons to make application for the

6.

grant of a licence or to Iloadge with the Tribunal written submissions relating to the grant. And it is the notice that sets

out an outline of the specifications to which it is proposed the licence is toa be subject. "Specification" is defined in

sub-s.80(1) to mean 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) ain 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 remaining sub-sections of 5.82 and 55.83 and 84 are concerned with the holding of an inquiry and the grant of a licence. It is true that sub-s.18(1), which is part of Division 3 - Inquiries by the Tribunal within PART II - THE AUSTRALIAN BROADCASTING TRIBUNAL, empowers the Tribunal before taking action under the Act "in relation to any matter", if it thinks fit, to "hold an inquiry in accordance with this Division into that matter". Sub-section 18(2) empowers the Minister to direct the Tribunal to hold an inquiry in accordance with the Division into

any of the matters therein mentioned, none of which involves the

7.

grant of a licence. Section 18 1s concerned with the holding of an inquiry. It does not empower the Tribunal to grant a licence as a result of an inquiry initiated by it. In my view, sub-s.82(1) makes a notice by the Minister a prerequisite of an

inquiry relating to the grant of a licence.

It follows, I think, from this reasoning that not only may a licence not be granted unless the required notice has heen given but no inquiry may be held into the grant of a licence without such a notice. In that regard it should be noted that, hy reason of 5.83, where there is only one applicant for a licence and there have been no submissions "other than submissions that, in the opinion of the Tribunal, are frivolous, vexatious or not made in good faith" objecting to the grant of the licence or to the grant of the licence to the applicant, the Tribunal may, if it

thinks fit, consider the application without holding an inquiry.

Once an inquiry has been held, before there may be a grant of a licence the Minister is required by sub-s.84(1) to determine the specifications applicable to the licence and to notify the Tribunal accordingly. The specifications must be consistent with or substantially consistent with the matters set

out in the notice initiating the inquiry. Sub-section 84(2)

reads:

"(2) Upon the grant of the 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

8.

'specification' in sub-section 80(1), as are imposed by the Tribunal."

Thus the Minister initiates an inguiry by notice; the Tribunal determines whether there should be a licence and, if s0, to whom it shall be granted; and, before grant, the matter returns to the

Minister to determine the specifications relevant to the licence.

The Acts goes to considerable lengths to spell out the

functions of the Minister and of the Tribunal. In this respect it is useful to refer to the second reading speeches of the Minister

responsible for the Act when moving the Broadcasting and

Television Amendment Bill (No. 2) 1976 and later in moving the

Broadcasting and Television Amendment Bill 1977.

In his second reading speech in connection with the 1976

Bill, the Minister said:

"It has been felt by the Government for some

time that there is now a need to separate the quasi judicial functions of licensing, and the conduct of public inquiries, from those responsibilities involved in the planning, regulation and other aspects of broadcasting administration.

To the present time these responsibilities have been vested in one authority - namely the Australian Broadcasting Control SBoard. As a result the Board has on many occasions been placed in the rather invidious position of being both 'judge and jury' in a number of important areas of its administrative responsibility. Under such conditions the separation of conflicts of interest, the preservation of a continuously objective outlook and the avoidance of ad hoc or sporadic development of the system through

diverse and fluctuating demand on staffing and other resources, have become problems of increasing intensity.

Until further legislation is introduced in 1977, the legislation contained in this Bill is transitional in nature and transfers the present responsibilities of the Board to either the Tribunal or the Department. Pending an early public inquiry by the Tribunal into the concept of a greater degree of 'self-regulation' by the industry itself - as proposed in the Report of the Inquiry - the Tribunal will also become responsible for the administration of the present programming and advertising standards as presently laid

down by the Australian Broadcasting Control Board.

It was not possible, in the time available in this session of Parliament, for Parliamentary Counsel to draft all the necessary legislation to implement the decisions of Government in the licensing area.

It is intended however that the Tribunal will ultimately assume the present Ministerial responsibilities to grant, renew, suspend or revoke licences, as well as impose conditions

on licences or impose penalties. It will aiso be granted all the powers presently available to either the Minister or the Australian Broadcasting Control Board for the administration of the ownership and control

provisions applicable to broadcasting licences.

In this way there will be very substantial 'depoliticisation' of the licensing process. Determinations on questions of licence grants and renewals, as well as the administration of licence conditions, will no longer rest with the Minister. These responsibilities will, in the future, be vested in the new

Tribunal." (Parliamentary Debates Senate 9 December 1976 pp.2931-2932).

In moving the 1977 Bill the Minister said:

"The principle of a broadcasting system not subject to political interference is one of the basic aims of the changes proposed in this Bill. The major element of the changes aimed at depoliticising the broadcasting system is the transfer of the licensing power from the Minister to the Australian Broadcasting Tribunal. The broadcasting

10.

industry has sought this change for many years and it is considered to be an important factor in achieving more effective broadcasting administration. In addition we believe it highly desirable, that there should be a significant degree of public and industry involvement in the development of broadcasting.

Under the revised administrative structure provided by this Bill, the Minister administering the Broadcasting and Television Act now will now be responsible for planning

the provision of broadcasting services. We believe that planning the physical development of the broadcasting system is properly a matter for government. It is

closely related to its overall communications policy, and to its responsibility for the management of the frequency spectrum. The Minister will initiate the calling of licence applications as part of the planning process and then refer the applications received to the Tribunal for determination. In inviting applications, the Minister will provide specifications for the particular licence. These will indicate the nature of the service to be provided, the area to be served, the purpose of the licence, and other technical matters. These specifications will become, upon grant of the licence, conditions of the licence an {sic} addition to the conditions set by the Tribunal pursuant to its powers." (Parliamentary Debates Senate 7 November 1977 pp.2181-2182).

Against that background, and in terms of the legislation itself, the meaning and scope of s.111C must be considered. As mentioned earlier, 5.111C is in PART V - GENERAL of the Act. Counsel for TVW submitted that it was a reasonable inference therefrom that, in its reference to planning the development of television services in Australia, the section had application to the action of the Minister in publishing a notice pursuant to sub-s.82(1). I do not accept this submission. Although Part V is

described as "GENERAL", a perusal of the sections therein suggests

11.

that a more appropriate description would be "MISCELLANEOUS". By reason of sub-s.13(1) of the Acts Interpretation Act 1901, the heading of Parts and Divisions into which an Act is divided "shall be deemed to he part of the Act". However it is still necessary to decide what the term "GENERAL" comprehends. Part V contains provisions relating to remuneration (s.111E), the rights of public servants (5.111F), the transmission of certain messages (112), the obligation of the Australian Broadcasting Commission to make certain programmes available to commercial television stations and to make programmes available to certain licensees (55.113, 113A), the encouragement of Australian artists (s.114), the televising of Bporting events and entertainments (s.115), the broadcasting or televising of political or controversial matter {s.116), particular requirements in regard to the broadcasting or televising of political matter (55.117, 117A), a restriction on the broadcasting or televising of objectionable items (5.118), a review of certain decisions of the Tribunal by the Administrative Appeals Tribunal (5.119A), the creation of various offences (55.124A), the prosecution of offences (5.132), the service of

documents (5.133) and the power to make regulations (5.134).

Some of these provisions are clearly of general application in the sense that they relate to matters to be found elsewhere in the Act. But, equally, some have a specific function unrelated to other provisions. The latter find themselves in Part V because there is nowhere else that they may be appropriately housed. It is apparent that 5.111C has some application outside

Part V. But the question still remains - in publishing a notice

12.

under sub-s.82(1), is the Minister engaged in plannning the

development of television services in Australia within s5.111C?

The use of the verb "to plan" is significant. Some submissions made on behaif of the Minister tended to suggest that unless the giving of a notice under sub-s.82(1) was part of some plan conceived by the Minister, s5.111C could in any event have no application. Ido not accept this. As averb, "plan" points rather to the act of bringing some design or scheme into existence, an act which necessarily begins before the final design or scheme is arrived at. "Development" suggests a fuller working out of details. Thus "to plan the development of ... television services in Australia" is to engage in the process of bringing about a detailed scheme to further television services in this country. Inevitably it will be a process spread over a period of time, in the course of which ideas may fluctuate. It is unlikely

that there will ever be a time when the details are complete for

the process is both continuous and mutable.

Section 111C was inserted in the Act by the Broadcasting and Television Amendment Act (No. 2) 1976. In its original form

it declared the responsibility of the Secretary to the Postal and Telecommunications Department to be along the lines of the present

sub-s.111C(1), though in rather different language. Paragraph (a)

of sub-s.111C(1), in its original form, read:

"(a) to ensure the provision of services by broadcasting stations and television stations in accordance with plans for the development of the system of broadcasting and television in

KE lt

Australia, being plans from time to time approved by the Minister;".

The emphasis was on "plans from time to time approved by the Minister", a more tangible notion than planning

development.

Sub-section 111C(2), again in its original form, required the Secretary in discharging his responsibilities under para.(a) to consult the Broadcasting Council or, if there was no Broadcasting Council, representatives of the stations mentioned in the paragraph. The present s.111C was substituted by the

Broadcasting and Television Amendment Act 1977. It is apparent

from the legislative history of s.111C, read in the light of the

second reading speeches to which reference has been made, that the intention of Parliament was to separate the quasi judicial licensing function, which was entrusted to the Tribunal, and the planning and policy making function, which was vested in the Minister. Section 111C is concerned with identifying particular functions of the Minister. In carrying out one of those functions the Minister is required, by sub-s.(2), to consult. In literal terms the publication of a notice under sub-s. 82(1) is, I think, within the expression "to plan the development of ... television services in Australia". Furthermore one of the agreed facts for

the purpose of the case stated is -

"7. The introduction of a further commercial television service for the Perth Metropolitan Area and environs:

seme es

wen yen re aoe

neg on —_

Sali Saad

14.

(a) constitutes development of television services in Australia; and

(Db) aaa

But it is unlikely that Parliament intended that the publication of anotice pursuant to sub-s.82(1) be part of the Minister's responsibility under para.111C(1)(a). There is no apparent connection between the two provisions though one might be expected if sub-s.111C0(2) were to apply to sub-s.82(1). It is of some importance that sub-s.111D(1) provides that, for the purpose of discharging his responsibilities under the preceding section, the Minister may "make such orders, give such directions and do all such other things as he thinks fit". While the words "do all such ather things as he thinks fit" are wide in their import, one would expect a more direct reference toa notice under sub-s.82(1) if sub-s.111D(1) were intended to comprehend such a notice. Cf. 5.17

which gives the Tribunal similar powers for "the purpose of

exercising its powers and functions under this Act", not merely under s. 16 which identifies the functions of the Tribunal. In other words para.111C(1)(a) is concerned with planning in its broadest sense, not with the specific act of giving notice to initiate an inquiry. If the Minister's power to publish a notice was to be constrained by an obligation to consult first, it would have been easy enough for the legislature to say so in clear

language.

Consultation is no empty term. "The requirement of

consultation is never to be treated perfunctorily or as a4 mere

formality" (Port Louis Corporation v. Attorney-General of

15.

Mauritius £19651 A.C. 1111 at 1124. That decision and others e.g.

Rollo v. Minister of Town Planning [19481 1 All E.R. 13 at 17 and

Sinfield v. London Transport Executive £19701 Ch. 550 at 558 make

it clear that a responsibility to consult carries a responsiblity to give those consulted an opportunity to be heard and to express their views 50 that they may be taken into account. It would bea somewhat curious result if, the Act having constituted a Tribunal to consider, within the framework of a public inquiry, whether there shall be an additional commercial television station and if 60 who shall receive the licence, the Minister must before instituting an inquiry consult representatives of television stations that may be affected. If consultation is to have any meaning it follows that the Minister may, having regard to matters put to him by holders of existing licences, decide that there shall be no inquiry, hence no grant. In that event the Minister will have decided one of the very matters for which the Tribunal was established, thereby obliterating the distinction between quasi judicial functions and administrative functions which the Act sought to establish. By way of illustration, the need for the commercial viability of existing stations is a matter to which the Tribunal must direct its attention (para.83(6)(c)(iii)). It remains true of course that, if par.111C(1)(a) has no application to sub-5.82(1), the Minister must still make a decision to publish a notice and must do so on the basis of information available to him. But that is a different matter from saying that the Minister must first consult the holders of existing licences before he may give notice instituting an inquiry. In my view this result was not intended by the legislature and is not a result that follows

from the proper construction of the Act.

16.

Nevertheless, it is not easy to place para.111C(1) (a) within the general framework of the Act. The matters mentioned in paras (b), (c) and (d) of sub-s.(1) are of a technical nature and put the Minister under no obligation to consult. The consultation required by sub-s.(2) is not confined to representatives of television stations in relation to matters affecting them. Paragraph 111C(2)(b) requires the Minister to consult with the Broadcasting Council "in relation to matters generally affecting broadcasting and television in Australia". The Act does not prescribe circumstances in which the Minister may publish a notice

in accordance with sub-s.82(1). Mr. M. Armstrong, the learned

author of Broadcasting Law and Policy in Australia, comments at

Ppara.703:

"There are no strict guidelines for the procedure of inviting the Minister to call applications for licences. On some occasions the Postal and Telecommunications Department itself initiates a proposal for a new station known as a Planning Proposal. It may do so on the initiative of the Minister or on its own initiative where a need is perceived. Sometimes applications are called as part of some general plan such as the Guidelines for the Development of Commercial FM Broadcasting in Phase 1 published by the Department in June 1979. The Minister is now required to obtain the advice of the Broadcasting Council before adopting plans of that kind: 6.111C(2)(b). The Department considers Planning Proposais prepared outside, and issues brief guidelines to assist anybody preparing one: Postal and Telecommunications Department Annual Report (1978-79) 18. A Planning Proposal includes information about matters such as: the proposed service area; its population and industries; mass media already available; evidence of demand fora

17.

new station; and basic technical matters such as proposed radiated power and the nature of any directional aerial. Some of those preparing Proposals employ consulting engineers to incorporate elaborate technical details, but the engineers in the Department themselves add appropriate technical details

to a Proposal which wins favour. Every Proposal received is examined by the engineering and planning staff of the

Department, who then send it to the Minister with comments. If the Minister wishes the

Proposal to be considered further, he circulates it to broadcasting industry bodies for comment. That is regarded as necessary

under s5.111C(2) of the Act which obliges him to consult representatives of stations in relation to matters affecting then. This process means that existing stations in an area have an early opportunity to oppose the licensing of any competitor. After comments on the Proposal are received from existing stations, the Department analyses them and sends the Proposal, comments received and its own comments and recommendation to the

Minister. The Minister then approves or rejects the Proposal or asks for

modifications. Where a proposal is approved, the Minister then calls for applications for the licence under 5.82."

I have no doubt that the learned author accurately describes what happens in practice. But if the inference to be drawn is that no notice may be published under sub-s.82(1) without prior consultation with television stations that may be affected, I must disagree, In this regard there is another difficulty in the way of TVW's submission. At what point is the Minister required to consult? Planning is a continuous process. Is the Minister required to consult at each stage of the process? If he is so

required, the difficulties facing him are great indeed.

If I am wrong in the view I have taken of the relationship, or rather the absence of a relationship, between

s5.111C and 82, it is necessary to consider the nature and extent

ig.

of the obligation cast on the Minister by 5.111C and the consequences of a failure by him to meet that obligation. One way of putting the matter is to ask whether 5.111C is mandatory or

directory though I do not think this is a useful dichotomy in the

present case. In Scurr v. Brisbane City Council (1973) 133 C.L.R.

242 Stephen J. said at 255:

"The applicable principles determining the choice between a mandatory and a directory interpretation are well settled and are succinctly stated ina passage from Maxwell on the Interpretation of Statutes, 12th ed. (1969), pp.314-315, which has been referred

to with approval in a number of authorities;".

The passage in question reads:

"It is impossible to lay down any general rule for determining whether a provision is imperative or directory. 'No universal rule,' said Lord Campbell L.C., 'can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.' {Liverpool Borough Bank v. Turner (1860) 2 De G.F. & J. 502, at pp. 507, S081 And Lord Penzance said: 'I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called

imperative or only directory." CHoward v. BHodington (1877) 2 P.D. 203, at p. 2111.

Fae

In a number of decisions, a duty to consult has been

held to be mandatory. See for instance Agricultural Hoard v.

Aylesbury Mushrooms Ltd. £19723 1 W.L.R. 190; In re The Union of

the Benefices of Whippingham and East Cowes, St. James £19547 A.C.

245 and Grunwick Processing Laboratories Ltd v. Advisory,

Conciliation and Arbitration Service £19781 A.C. 655. But the

distinction is not always important; Stephen J. commented in Scurr

at 256:

"It ais well established that a directory interpretation of a statutory requirement still necessitates, as a condition of validity, that there should be substantial compliance with the requirement; Cullimore v.

Lyme Regis Corporation £19623 1 Q.H. 718 provides a modern instance of this."

But that statement must be read in the light of Stephen J.'s later

comments in Victoria v. The Commonwealth and Connor (1975) 134

C.L.R. 81 at 179:

"A directory construction will not assist in securing validity unless, despite the non-compliance which is the occasion for invoking that construction, there may nevertheless be seen to be substantial compliance with the general object at which the statutory provision aims. Sometimes the stipulation which has not been complied with is, in its context, so relatively unimportant to the attainment of that general object that, although there has been total non-compliance, a directory construction may be appropriate. In such cases it may not matter that the non-compliance is complete, not partial. Indeed the stipulation in question may be of a kind which is incapable of partial compliance; to give to such a stipulation a directory interpretation recognizes that it may be wholly disregarded without prejudice to validity because of its relative unimportance in the attainment of the general statutory object and also, perhaps, because of the far-reaching and

20.

undesirable consequences of treating its non-observance as invalidatory.

Where, on the contrary, a stipulation may be seen to he of importance in attaining the general object of the statute its total non-observance cannot be sought to be excused, and its intended effect circumvented, by the adoption of a directory construction. A directory construction may none the less he given to such a stipulation if it is of a kind capable of degrees of non-compliance and if some degree of non-compliance can be seen as not necessarily prejudicing the substantial carrying into effect of the general object. If in such a case a directory construction be adopted, the extent of non-compliance in the particular case must then be examined to determine whether what has in fact occurred nevertheless gives effect to the general object of the statute."

The current state of the authorities was summed up by the Court of

Appeal (New South Wales) in Tasker v. Fullwood £19781 1 N.S.W.L.R.

20 at 23-24 in the following terms:

"From these sources we take the following

propositions: (1) The problem is to he solved in the process of construing the relevant statute. Little, if any,

assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non~compliance: the Franklins Stores Pty. Ltd. case. £19773 2 N.S.W.L.R. 955 at pp.963 et. seq. (3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: Hatton v. Beaumont. £19771 2 N.S.W.L.R. 211 at p.220 (4) The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to

ai.

observe 1ts requirement: Victoria v. The Commonwealth. (1975) 134 C.L.R. 81 at pp.179, 180 (5) It can mislead if one substitutes for the question thus posed an investigation a5 to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations. (6) In particular, it ais wrong to say that, if a statute is couched in directory terms, the act will be invalid, unless substantial performance is demonstrated: the Franklins Stores Pty. Ltd. case. £19771 2 N.S.W.L.R. 955 at pp.965 et seq. A statute which, on its proper construction, does not nullify the act in question, even for total non-obsevance of the stipulation, is also described as directory in its terms: Victoria v. The Commonwealth."

In the present case it is an agreed fact that, before publication of the notice establishing the inquiry, neither the Minister nor any of his predecessors consulted TVW in relation to any matter relevant to the inquiry. The question then is - what are the consequences of a failure on the part of the Minister to consult? Did the legislature intend that failure to consult would invalidate the notice and in turn the inquiry? In this regard it would, I suggest, be a curious and unexpected consequence of failure to consult that the inquiry itself should be void. The Minister's notice invites applications for, or written submissions relating to, the grant of a licence for a commercial television station in the Perth Metropolitan Television Area. The notice fixes a time for the lodging of applications for the grant of a licence and for the making of written submissions. Section 82 contains machinery provisions for making available for public inspection the names and addresses of persons lodging applications

and for service of submissions. Section 83 obliges the Tribunal

22.

thereafter to hold an inquiry into the grant of the licence and contains provisions relating to the holding of the inguiry and the grant of a licence. Persons appear before the Tribunal and, as the present inquiry demonstrates, the proceedings may be long and costly. To hold the inquiry void because of the failure of the Minister to consult TVW before publishing a notice under sub-s.82(1) would, in the words of Sir Arthur Channell in Montreal

Street Railway Company v. Normandin £1917] A.C. 170 at 175, "work

serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time

would not promote the main object of the Legislature ..."

The sections mentioned in the preceding paragraph must be read together with the provisions in Division 3 of Part II of the Act which deal generally with the form of inquiries by the Tribunal. The holder of an existing television licence, as in the case of TVW, has every opportunity to oppose the grant of any additional licence and to oppose its grant to any particular applicant. In my opinion any obligation to consult by reason of s.111C confers on TVW no greater rights than it has once a notice has been given except that it may be argued that, as a result of consultation, the Minister may be persuaded that there is no need for an inquiry by the Tribunal into a further television licence. But that view of the Act is, in my opinion, at variance with the distinction drawn by the Act itself between the functions of the

Minister and the functions of the Tribunal.

The scheme of the Act for the granting of licences is to

be found in Part IIIB. The scheme is detailed; the details have

2 otra cer:

23.

been mentioned already in these reasons for judgment. I am unable to import into Part IIIB, in particular into the publication of a notice under sub-s.82(1), the obligation to consult of which sub-s.111C(2) speaks. I am also unable to read into the Act an intention that a failure to consult before the publication of a notice, assuming for the moment that such an obligation exists, Carries with it the consequence that the inquiry itself and its conclusions are thereby of no effect. In my view, one would need to find in the Act a more direct relationship between 5.111C and 5.82 and a clearer indication of Parliament's intention that failure to consult avoids an inquiry than presently exist. In the light of these conclusions I turn to the particular questions asked of the Court. Better to understand the questions and answers, it is necessary to bear in mind that they embrace the actions and non-actions of the Minister's predecessors. It must also be appreciated that the answer to the first question is in

part dictated by the agreed fact to which reference has already

been made.

Question

1. Was the first respondent under any obligation to consult with the applicant within the meaning of 5.111C(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

24,

commercial television station licence to serve an area

within the Perth Metropolitan Television Area;

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

(ad) about or concerning any matter affecting the applicant, or a specified class of television station including the applicant, toa 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

under any obligation to consult with the applicant within the

meaning of 5.111C(2)(a) of the Act in relation to any of the

matters mentioned in para.l hereof in discharging their

responsibilities umder 5.111C(1)(a) of the Act?

25.

Answer

Yes; see the answers to Question l.

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 answers to Questions 1 and 2 are in any respect in the

affirmative and the first respondent failed or neglected to

26.

consult the applicant in relation to any of the matters

mentioned in para.l hereof but the other ministers abovementioned did consult the applicant within the meaning of 5.111C(2)(a) of the Act as referred to in Question 2

above, im 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 he answered.

Question

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 s5.111C(2)(a) of the Act as referred to in Questions 1 and 2 respectively, was the notice invalid and

of no effect?

~ , a

~we

27. Answer No. Question B. 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.

I shall hear from counsel as to the appropriate orders to be made in the light of these reasons, including any directions

that may be sought for the further conduct of the application.

I certify that this and the twenty-six preceding pages are a true copy of the Reasons for Judgment herein of his

Honour Mr. Justice Toohey.

Associate

Dated: " uly , VEE