Macquarie Media Holdings Limited (ACN 116 024 536) v Australian Communications and Media Authority [2009] FCAFC 1

FEDERAL COURT OF AUSTRALIA

Macquarie Media Holdings Limited (ACN 116 024 536) v Australian Communications and Media Authority [2009] FCAFC 1 BROADCASTING – Broadcasting Services Act 1992 – prohibition on controlling more than one commercial television broadcasting licence in the same licence area – exemption for licensees in underserved areas – additional licence allocated jointly to two existing licensees – statutory exemption from the more than one licence prohibition – whether exemption lost when existing licensee taken over by a third party – Broadcasting Services Act s 38B, s 53(2), s 73A(1) and Schedule 1. STATUTORY INTERPRETATION – legislative scheme to provide additional television services to underserved licence areas – legislative amendment in 2001 to overcome unanticipated consequence of 2000 Act – scope of 2001 provision repealing and re-enacting an exemption from a statutory prohibition on controlling more than one commercial television broadcasting licence in the same licence area – significance of legislative history of the exemption and of extrinsic materials explaining its context and purpose – purposive and contextual construction – conflicting possible constructions – construction adopted which was reasonably open and more closely conformed to the legislative intent. Broadcasting Services Act 1992 (Cth) ss 6, 7, 38A, 38B, 53(2), 55(3), 55(4), 67, 73, 73A, Divs 2 & 3 of Pt 5 Broadcasting Services Amendment (Digital Television and Datacasting) Act 2000 (Cth) Broadcasting Legislation Amendment Act (No 2) 2001 (Cth) Broadcasting Act 1942 (Cth) s 89A Judiciary Act 1903 (Cth) s 39B

Re Ku-ring-gai Co-operative Building Society (No 12) Ltd (1978) 22 ALR 621 cited Saraswati v The Queen (1991) 172 CLR 1 cited CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 applied R v L (1994) 49 FCR 534 cited Comcare v Thompson (2000) 100 FCR 375 cited Pearce and Geddes, Statutory Interpretation in Australia (6th ed, 2006) Butler and Rodrick, Australian Media Law (3rd ed, 2007) MACQUARIE MEDIA HOLDINGS LIMITED (ACN 116 024 536), MACQUARIE MEDIA GROUP PTY LIMITED (ACN 110 357 036), MACQUARIE MEDIA MANAGEMENT LIMITED (ACN 115 524 019), MACQUARIE MEDIA INTERNATIONAL LIMITED (ARBN 118 577 423), REGIONAL MEDIA NO 1 PTY LIMITED (ACN 124 719 400) and REGIONAL MEDIA NO 2 PTY LIMITED (ACN 124 720 289) v AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY