CATCHRMORDS ADMINISTRATIVE LAW - iudicial review - decision of respondent requiring applicant to supplv certain information - whether respondent authorisea tc require the provision of said information - whether reauest bad at law - relationship hetween Broadcasting and Televisia Act 1942 and Television Stations Licence Fees Act 1964. Breadcastina and Televiszron Act 1942. ss. 16, 196, 129, 132 Television Stations Licence Fees Act 1964, ss. 3, 4. 5, 4, 7 Administrative Decisions (dudicial Review) Act 1977, waras. S¢1)tey, (di), (8) and (f), paras. 5(2)¢(a) and (c). AMALGAMATED TEGCPYVTSTON SFDVICKS PTY. LIMITED vw. AlSTRATTAN RENATCASTING TRIBTINAL NSW G4ie aF 19823 NEW SOUTH WALES DISTPICT REGISTPY » No, G4i8 of 19 \ GENERAL DIVISION \ RETWEEN - AMALGAMATED TELEVISION SERVICES PTV. LIMITED Applicant AND: AUSTRALTAN BRGADCASTING TRIRUNAL Respondent ITDGE MAKING ORDERS: LOCKHART J. DATE: 1 JUNE 1984 WHERE MADE: SYDNEY OPDER THE COURT ORDERS THAT: i, The decision of the respondent to supply to ut che information described in 4(pl, (ec), (8) and (f) of the respondent's letter apniicant dated 15 Seprember 1983 he cuashed. apolicant's w he yespondent yay tne oroceeding. requiring the applicant Paras. to the fa) Fh ie hem Ot) TY THE TSDERAL CoupT OF AUSTPALTA | NEW SOUTH WALES DISTRICT REGISTRY » No. G418 of 1983 t GENERAL DIVISToN } RETWEEN : AMALGAMATED TELEVISION SERVICES PTY. LIMITED AND: BROADCASTING Pespondent CORAM: LOCKHAPT J. 1 dune 1984 EASONS FOP JUDGMENT LOCKHART J. Amalgamated Television Services Pty. Limited (the applicant! seeks an order of review under the Administrative or a decision of the Austyalian Broadcasting Tribunal (the reepondent that the applicant supply ta the respondent the letter from the respondent to the applicant dated 15 Sentemher 1983. The Jetrer., ¢ao far as presentiv relevant, reads as "a, Accordingly, pursuant to ¢$ 106(4)(b) of the Acr, you are requested ta furnish: 'br oa.starement of She earnings of anv anti to the licensee wath respect fa matter 1se fram the station which. had the =arninas een receivea directly by rhe Llitensee, would have heen required to he included as aross earnings within rhe meaning of tne TVLF Act: fe. em starement of the earnings by rne licensee, or anv entity related to the licensee (age referred ta in 'hy above). lating ta the production ana recording an deo-tape, or the recerdind on wideo-tane, of matter consisting wholly of an advertisement televised bv the licensee and which earnings have nat been included ain Form ABT 9 as qrocs earnings of the licensee; oe 2: the amounr of anv bad or doubtful debts that nave heen excluded from the gross earniras declared in Form ABT & - (fy) rhe amounr of anv bad debts subsequently recovered afrer being previously excluded in returns lodged by the licensee: ... The anplicant ccnterded that the respondent was not authorised to recuirs the provision of this information. Tre applicant retied on paras. Sii)lc), (dd), (fe) and (Tf) of the Judicial Review Act and, so far as para. (4) 15 concerned, on the Television Act 1942 (the "Broadcasting and Television Act") and the Television Starions cence Fees Act 1964 (the "Licence Fees Act") and the relation of each ta the other. it is necessary co qa A licenses of a commercral televisitan statior H Lt] ta the Tribunal at certain reqular intervals a statutory declaration stating the arase earnings of the stati BY P) n tat Tre Tribunal ie empowered bv the RBroadcastinog and 2 to furnish iD Television Act (nara. 106(43(b1) to request a licens "sneh particulars with resnect to the broadcasting or television activities of the licensee as the Tribunal svecifies and anv other information specified bv the Tribunal, beina iunformatian with respect ro the Activities or affairs of the licensee and relevant +2 the operation of this Act". The Tribunal is required by sub-s. 106A(1) tao assemble ub-s. wa s. 105 or supplied te the Tribunal in accordance with 1LO06A(2) (that 1s. information in the possession or control of the licensee relating to a function of the Tribunal' or otherwise acquired by the Tribunal in the performance of its functions. Section 16 -f the Broadcasting and Television Act enumerates rhe eh functions of the Tribunal and they include the function o assembling information relating to broaacasting and television in Australia under s. AGA: para. 16/1)(h) of the Broadcasting and Sectiangs 4 and S of the Licence Pees Act provide: "a ¢2) Tn this Act - 'avass earnings , in relation o-- a comnercial television station in reepect OF A period, means "ne aross earnines of the licensee of the e«rarainan Qnving 'har veriad in respect of "he tel awisine Fram the starice af advertisements or arher matrer, iunelugine the aross earnings of the licensee durine that verirod in resoect of the provision by him of. avr otherwise in respect of, matter fRelevised from the station, not beine earnings from the production and recoraina on Photographic film, Or the recording on chotooranohic film of matter consisting tholivy of an advertisement: 'licence' means a licence in respect of a commercial television station araphic film' includes a sound recording for use coniunction with anv such film. but 'does not clude magnetic tape except macnetic tape which sists of any such sound recording. (2) Where, in connexion with any transaction. any 1gideration 1s paid or given otherwise than in cash, monev value of that 'vonsideration shall, for the poses of this Act, be deemed ta have been paid ar =] G30 3 ew iD + Qo cts nes 3 is pavable ta the Commonwealth by the QR commercial felevision station, in respe ect cence. fees in accordance with the ext sectian. ts QerO nM o7WM a » 1D Bh - £ nosy DrRuUuW tA Dis ph ni a re ig] Q Section 6 establishes a formula for determining licence fees payable by commercial television stations. Nothing turns on the precise formule. Tt as based on a graduated scale of percentages of aross earnings which rise as gross earnings increase. Section 7 oravides: nae Where the Minister 1s of the opinion that - fal an amount, or part of an amount, earned during anv period by a person other than the licensee of a commercial television station would. if the licenses and that verson were the sa form part of the gross earnings of rhe st pect or thar neriad for the purpnees of t . n (hi 3 relatioarshie =rists perweern the licensee and the anther person (whetner bv reagan of anv charehalding of or any agreement or arrangement, or for anv ather reason) of such a kind that the amount or the part or the amount, as the case mav be, should, for the Purposes of this Act, be treated as part of the gross earnings of the station in respect of that periad, Fhe Minister may direct that the amount or the part of the amount, as the case mav he, shail be s9 treated." Tne language of the relevant ovrovisions of para. 4 of the letter under attack is reminiscent of s. 7 of the Licence Fees Act. The attack by the applicant upon the respondent's request for information was based vrimarilv upon the alleged 'andent ta request the provision of nm 1D al 1D mn absence of pawer of t e r m condly upon the particular form of t no the anformation an da request, although the two arquments overlapped. spitcant araued that the reauests in paras. 4(b), 4} F iT AQ "i (el, t#) and (f) of the relevant letter were bad. I turn first to the arqument in relation to para. 4(b). It was contendea hy fhe applicant that the request under para. 4(b) of the letter furnished by the applicant of the earninas =a a + w in) + wu ct i]oD pon] a yy D of an entity related fo" the applicant with respect to matter feleviced from the statien cerducted by the apnolicant which "haa the earnings been received directly by the licenses, wnuld nave been recuired ta be included as gross earnings within the meaning of the "IF Act" was bad for two main reasons. First ir was centend=d that the expressi2on 'entity relared to the liceneee' is 'uncertain Tr is common ground that the expression 1¢ nat aefined in any pelevant legislation ana thet ne expressicn auvir nN and 'b) at That section and the subsequent direction by him that the relevant amounts are to be treated as part of the gross earnings of the station concerned in respect of the relevant period. There is no evidence that the Minister has formed anv such apinion;: nor was 1t suqgested by the respondent that he has. No arqvument was offered by the respondent in opposition to the applicant's araguments. The requirement of para. 4(b) 1s plainly bad as it requires the aovlicant as licensee to determine for itself what is meant by the expression "anv entity related to wr". In the aheence of anv ahiecrive criteria to determine the A rh "3 % meanina of that expression. the request in para. 4fb) is ba uncertainty. It must be remembered that serious consequences mav flow te a licensse from its failure to furnish the Tribunal with aunformat2zon sought by it. Fazlurs to comoly witn a prowisian of the Broadcasting and Television Act or any condition of a licence constitutes an offence aqainst that Act: s. 152. Alse, the Tribunal mav refuse to renew a licence if it 1s satisfied that a ng rhe he Act a bt x + ~ iz 'h Po) + wD wn pe be T nr ct nt a a 'S ada a . a) a 2) ro] in rymu reanlations and those prowi¢c1lons are aeemed to be incorporated in The second limn of the attack on this reauest far unformation was that, even if 1f were possible to determine the identity of the "entity related to" the applicant, there are no earnings of that entity whicn could answer the description of earnings which "had the earninas been received directly by the licensee. would have been required ta be included in gross earninas wirhin the meaning of the TWLF Act" because the Minister has not formed anv opinion or given any direction under s. 7 of '< the Licence Fees Act and there is no other basis for identifying any of the alleged earnings specified in the request for t a3 informa The respondent sought to read the request as if it saic "would be liable to have been reauired to ne ancluded un rhe anv tha is] at ct =a arnss earninas" erc, The emphasis is mine. I dan the request bears this construction; but ewen if it cauld, ait would not answer the obiectior raised oy the avoplicant. The apolicant's objections ro the request for information 1n vara. para. dic) of the letter. Insofar as the request relares ta rhe alleyed ""entirv" then the first argument already mentioned ~youla wo a] anoly ~> eryike down this request Para. 4(c! also relates ro statement of earninas by the licensee itseli. The applicant arqued that the reauest for the statement of earnings by the licenses was bad because the only information about aross earnings which the Tribunal is empowered to seek 1s with respect to "oraes sarnings" as defined by sup-s, 4(1) of the Licence Fees Act (see para. 196(5'tb) of the Broadcasting ana Television Aer) and those provisions relate to the aqross earnings of the licenses only. The next step in the argument involved Form ABT 9 whith is the form referred to in para. 4c) of the request. That form provides for a statutorv declaration requiring the statement of u aross earnings of the relevant television station in terms which foliow in all relevant respects the definition of arass earnings" in the Licence Fees Act. Hence, so the argument went, the only information abaut cross earnings of the applicant which the Tribunal is empowered to seek is the information requested in From ABT °: y ara. 4(c) of the request requires the applicant oO + 'D to furnish ainformation about aifs earninas "which ¢arninas have not been aiuncluded in Form ABT 9 as aross earnings of the licensee" The argument advanced bv the respvandent in apposition -s "3 The Broadcasting ana Television fer 1942 619841 is incorvorated and shall be read as one with this Act "" Act snould be given an extended application so as to cover things one under the Licence Fees Act and in particular soaas to authorise the Tribunal ta require the orovision by the licensees ot televieinr stations of information of the kind which woulda anable the Minister to farm the opinions and give the direction contemplated by s. 7 of the Licence Fees Act. Tt is not uncommon to find in an Act a provision that an earlier Act is incorvorated and shall be read as one with the Act The effect of such a provision is to transpose the earlier into the later Act or to write every provision of the earlier Act into the later Act as if thev had been actually printed anto it. It 1s a rule of construction of statutes: but it cannot be used in effect to amend the ovorovwisions of the ith the later Act, a earlier Act which is to be read as one + read as ore with an earlier Act, The effect is the same namely, Canada Southern Failwaw Company v. The International Bridoe Company £18833 8 A.C. 723 per Lord Seiborne at v0. 727; Qsborne v. The Commonweath of Australia (1911) 12 C.L.R. 321 especially per Barton J. at pp. 342 and 343: Perpetual Trustee Co. (Limited) v Wattscheibe (1940) 40 S.R. (N.S.W.) 501 per Jordan C.d. at op. S10; Cadbury-Frv-Pascall Pty. Limited v. Federal Commissioner of Tavation (1944) 70 C.L PB. 362 per Mitliams Jo an rm, 3RR and the cases rhere cited: Tasman Timber timires The vespondent slaced considerable reliance upon the qudament oof Smith J. in Georaaussis v. The Medical Board of a C19957] V.P, 671. That case concerned the Medical Act 1928 (Victoria) - the principal Act. It was amended by a series i) . the first amending Act heing the Medical Act 1923. Each "s a Act contained a provision that 16 was te be ead and ead as one with the orincipal &cer and the Acts amending the is p The latest in the series of amending Acts was the Medical ration) Act 1956 which provided: "1. This Act may be cited as the Medical (Registration Act 1956 and shall be read and construed as one with Part IT of the Medical Act 1928 (hereinafter called the "Principal Act") and the Acts amending the same all of which Acts and this Act may be cited together as the Medical Acts." p. 673. "Tt is true that in Kirkness v. John Hudson & Co £1955] A.C. 696 ait was made clear by the House of Lords that Se Ww lborne said cannot be reaarded as authority for holding that a provision for reading two Acts tegether can cause expressions in the earlier of the two Acts toa be construed as meaning and having alwavs meant something which. in their original eonterr, thev were not fairly capable of meaning Any other view would involve, in effect, allowing the 'later Act to operate to amend the earlier retrospectively by mere implication. But the decision does not anpear to me to cast anv doubt on the view that wren an Act is passed containing 2 direction that it shall be read and construed as one with an earlier Act expressions such as 'under this Act c3A appearing in the earlier Act must. in the absence of some indication of an auntention to rhe contrary, be given an extended application as from the dare of the later Act so as to cover, as From that date, thinas aone under the later Act The view that thev should be viven such an extended application appears to me 'to he euppnrted by the cases alreaay referred to and ziso hr several other cases relarinc ro the construction of in the later of the twa (1890), 25 QO.8.D. 300; K.B. S97; Chering Crass r Electricity Supply Co. v. Landon Uvdesulic Power Co., €19131 3 K.B. 442 and £1914] 3 K.B. 7720" The Georgoussis Case does not in my view assist the respondent's argument. First. because the provisions there under w coneiderafion were Acts which amended the principal Act ana second, becfuse it was the later amending Acts which were to be read a2 one with the principal Act, not vice versa as applies in the present case. These two considerations distinguish the Georgouss1s Case from the present case. Reference was also made in arqument to R. v. Wheeldon i) Court (1979) 18 A L.R. 819, a qudament of a Full Bench of thi (Bowen C.d.. Blackpurn and Fisher dJd.), which concerned the question whether in the Australian Capital Territory, since the coins inro anevation of the Death Penaltv Abolition Act 1973 Crh) and the Crimes Ordinance 1974 (fA.C.T.i the penalty o imprisonment for lize for the crime of murder was mandatory. Wheeldon's Case was concerned with very different legislative provisions Tram those uncer consideration here and I see nothince an the tudements of the members of the Court in that case which assist rhe respondert's arqument here. Tr o3s 94rm2esible, wnen anpiving ¢. FP of the Licence Fees Act, Tro +transoose the oroewisions of rhe Ercadcastina snd Televicran Arr into the Licence Fees Agr: bur not in efferr to w ra in the process: an pAb aPa] ian ot i) D xt ny 1D pet) an ry HY a ed he fed Q BY ba] far eed fyOi) < fn rR fm [s) Ba) ed O ct this is veallv what the respondent is seeking to aa The vrimaryv argument of the vespondent 17 that the dutv of the licensee which -s amprseqd by para. 194/41(b). when incorporated in the Licence 1¢ to furnish to the Tribunal information with respect e activities or affairs of the licensee, relevant not only ra the operation of the Broadcasting and Television Act, but also <0 the operation ot the Licence Fees Act. Hence, so the argument proceeds. it is in aid of the Minister's powers under s. 7 of the Licence Fees Act that the Tribunal seeks to obtain the information the subject of the reauest. The argument continued that the Tribunal is obliged to assemble that information bv virtue either of vara. LOGAI1'!a)d or para. 106(1)(c) (the latter provision relating to the performance of the Tribunal's functions m under para. 1WA(LIIA)). The information thus orocured 2 available to the Minister ta enable him to perform has functions The fallacy 1n this argument is that one cannot read the expression "this Act" an para. 106(4)'b) of the Broadcasting and Telewision Act other than as what it savs. It cannot be read as if it meant "this Act and the Television Stations Lrcence Fees Act 1964". To ¢o construe the vrovision would be to pass bevora terpretation and enter the impermissible field of amendment. uw i ari co in di Br Tre follows that there is probably a lacuna in the n cence Fees Act. Although the Minister mav form the opinion d qive che direction referred toins. 7, there is no power 'S nferred by that Act upon any person to obtain the relevant Fh ormation to enable thoss opinions to be formed and the rection «given. Nor may any power be found under the oadcasting and Television Act. It is common ground that no other power exists outside the ambit of those two Acts. If this WL 4¢ so then it 1s a vroblem which may attract the attention of therefore reject the rqument of the applicant "% fay Iss pay Ey 'D a or ted th reenect fo the request for information contained in pare c) of the lerter under challenge. Tt 7s common ground that the requests in cares, 48) and ) of rhe letter are cansequential to (cl and that, uf Tn mv opinion the applicant has made our its case and i¢ entitled to an arder quashing the decision under review. I certify that this and the twelve preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr, Justice 2 ckhart, lofen.s Lan Associate Dated: 1 June 1984