ft g ' L 1X teeny" q 2 ) Administrative Law - Judicial Review - Australian Broadcasting Tribunal - inquiry under s.83 - grant of licence for commercial television station - refusal to admit substantial body of evidence on an alternative television proposal - observations on duties of thoroughness, expedition and justice - balance required - tribunal to determine relevance - policy reasons to limit scope of inquiry. Administrative Decisions (Judicial Review) Act 1977 Broadcasting and Television Act 1942 $.25(1), 3.83(6)(d) TVW ENTERPRISES LIMITED v. AUSTRALIAN BROADCASTING TRIBUNAL, KENNETH ARCHER and SWAN TELEVISION, RADIO BROADCASTERS LIMITED and WESTERN TELEVISION LIMITED, WEST. _—- COAST' TELECASTERS LIMITED and PUBLIC TELEVISION OF WESTERN AUSTRALTA (INC. ) No. WA G5 of 1986 MUIRHEAD J. PERTH 7 FEBRUARY 1986 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION NO. WA G5 of 1986 wee ewe BETWEEN: TVW ENTERPRISES LIMITED Applicant and AUSTRALIAN BROADCASTING TRIBUNAL AND KENNETH ARCHER First respondents and SWAN TELEVISION & RADIO BROADCASTERS LIMITED Second respondents and WESTERN TELEVISION LIMITED WEST COAST TELECASTERS LIMITED Third respondents and PUBLIC TELEVISION WESTERN AUSTRALIA (INC. ) Fourth respondent MINUTE OF ORDER JUDGE MAKING ORDER: MUIRHEAD J. DATE OF ORDER: 7th February 1986 WHERE MADE: Perth THE COURT ORDERS THAT: The application is dismissed. The respondents be at liberty to apply for costs. 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. WAGS of 1986 ~~ eee BETWEEN: TVW ENTERPRISES LIMITED Applicant and AUSTRALIAN BROADCASTING TRIBUNAL AND KENNETH ARCHER First respondents and SWAN TELEVISION & RADIO BROADCASTERS LIMITED Second respondents and WESTERN TELEVISION LIMITED WEST COAST TELECASTERS LIMITED Third respondents and PUBLIC TELEVISION WESTERN AUSTRALIA (INC. ) Fourth respondent CORAM: MUIRHEAD J. 7th FEBRUARY 1986 REASONS FOR JUDGMENT This is an application for an order of review in respect of a decision of the Australian Broadcasting Tribunal (the Tribunal). The decision. in fact an interlocutory ruling, was prounounced on 22 January last. The application is brought pursuant to the Administrative Decisions (Judicial Review) Act 1977. A brief summary of the background will suffice. By notice dated 7th May 1984 and gazetted shortly thereafter the Minister of State for Communications invited applications for written submissions relating to the "grant of a licence for a commercial television station" subject to certain specifications which included the provision of a television service by means of a commercial television station to service an area within the Perth metropolitan television area in the State of Western Australia. The notice was published pursuant to Section 82 of the Broadcasting and Television Act (the Act). At all relevant times the Applicant TVW Enterprises Limited (TVW) and the Second Respondent Swan Television and Radio Broadcasters Limited (Swan) were operating commercial television stations broadcasting in the area. The Third Respondents, West Coast Telecasters Ltd (West, and Western Television Ltd (Western) lodged applications with the Tribunal pursuant to Section 82, and on 12 December 1984 the Tribunal commenced the hearing of an inquiry as contemplated by Section 83 of the Act. For present purposes it suffices to say that TVW and Swan as current incumbents (i.e. licence holders) oppose the grant of a commercial television licence. The Fourth respondent was not represented upon the application before the Court, being content to abide the outcome. The inquiry has continued with stops and starts since the 12th December 1984 and at the present date the inquiry has occupied about 100 sitting days. It is clear that the path has not been an easy one. Previous applications under the Administrative Decisions (Judicial Review) Act 1977 have been before the Court. See. for example. TVW Enterprises Ltd v. Australian Broadcasting Tribunal and others (1985) 61 ALR 79, decisions of Forster Jd. upon which TVW now places some reliance in the present application. I turn to events more closely preceding the lodging of the present application for review on 23rd January last. Most of the background material is contained in the exhibits to the affidavit of Anthony Carrivick, TVW's corporate solicitor, sworn on 24 January last. These include: (A) A summary of the evidence which TVW intended and sought to adduce at the Inquiry including its proposals for an "alternative television service" not being a commercial television service. This was placed before the Tribunal in late 1985. It is a comprehensive document which proposes the establishment in Perth of a "localised non-profit community television station owned through a government commission or statutory body and drawing upon members of the community to direct and establish operating policy". (Ex A) This is hereafter referred to as the "alternative television proposal." (B) (1) TVW's submission to the Tribunal in reply to its request for submissions relating to the alternative television proposal. (ii) West and Western's submission to Tribunal opposing (C) (D) (B) (F) further inquiry into the alternative television proposal (Ex B). Transcript of certain evidence taken in December 1985 including argument as to whether there should be further inquiry concerning the alternative television proposal. (Ex Cc). Tribunal Ruling on proposed evidence concerning alternative television. These constitute the 'decision' in respect of which review is sought (Ex. D). It is a comprehensive and considered document and I attach it asa schedule to these reasons. (1) TVW's initial written submissions to the Tribunal dated October 1984. This contained ten primary headings including the submission that "If another TV service is required at this time, then a non-commercial alternative is appropriate" (11) Original submissions of Public Television (W.A.) Inc. to Tribunal. (iii) Original submissions of Swan and an associated company Radio Broadcasters Ltd. (Ex.E). Research Report of Elliott and Shanahan Research prepared for TVW dated December 1985, entitled "Community Beliefs and Preferences for next TV Licence for Perth". The surveys upon which the report 1s based appear far reaching and deal with not only a third commercial channel but a second ABC channel and a public channel. (Ex.F) In its opposition to the grant of a third commercial licence TVW's case has included the submission that the public interest in this area will be best served, not by the granting of an additional commercial licence, which TVW predictably enough opposes in its own interests, but by the granting of a licence to set up an alternative television station, unique in Australia, funded from various sources and managed by a structure which to say the least is novel. The submission envisages that, existing commercial jlicencees, government and sponsorship arrangements would combine to finance the alternative station. The material before the Tribunal includes offers by the existing incumbents (or, in the case of Swan, an associated company) to assist in the establishment which, in essence, it 1s claimed will more truly serve the needs or interests of the public than the granting of a third commercial licence. And so it is that TVW in its submission to the Tribunal contended, by what it termed its positive submission that it should be permitted at this stage of the inquiry to introduce a substantial body of evidence as to matters relevant to this proposal, its feasibility and viability in various 'areas' set out in its written submissions of 15th January 1986 (part of Exhibit B) as follows: "(1) The demand for alternative television, (2) Programme philosophy. (3) Programme format. (4) Structure. ownership and control. (5) Funding overview. (6) Establishment costs. (7) Operating revenue. (8) Operating costs. TVW's Summary of Evidence (Ex. ""A") indicates the wide scope embraced by these matters, should the Tribunal embark upon it at this stage of the inquiry, which it has declined to do. Should it be required to do go the costs and time already expended upon this marathon inquiry will be increased, matters clearly and quite properly of considerable concern to the Tribunal in the exercise of its statutory function. The question nevertheless remains whether upon established principles of review this Court is required to direct that the Tribunal proceed as submitted by TVW despite these very real considerations. The specific "decisions" of the Tribunal at which review is sought as set out in the Application for review are its rulings that:- "(a) the Tribunal would not investigate a specific proposal by the Applicant for an alternative television service for the Perth metropolitan area ("the Alternative Television Proposal"); (b) that the Applicant would not be permitted to adduce evidence as to its Alternative Television Proposal: (c) the decision of the Tribunal as_ to whether or not to investigate the Applicant's Alternative Television Proposal was relative to an assessment of justice and expedition; (dad) that the likelihood of feasibility would not in itself be a reason for refusing to grant a further commercial television licence; (e) that the Tribunal is not required by Section 83(6)(d) to be persuaded that as new commercial television licence is required in preference to all other forms of television service but rather that the grant of such licence would not be in the public interest." I have heard no argument as to whether the Tribunal's rulings in fact constitute a decision or decisions to which the Administrative Decision (Judicial Review) Act 1977 applies. The Tribunal filed a Notice of Objection to competency on the ground that its 'ruling' did not constitute a decision within the meaning of Section 6 of that Act. That objection was not pursued in argument and there appears to be an assumption that the rulings in question are reviewable on the principles enumerated by the Full Court in Lamb v. Moss (1983) 49, ALR 533. I have thus proceeded, with the consent of all parties on the basis that I have jurisdiction to review and I now say no more about that aspect. The functions, power and responsibilties of the Tribunal are governed by the Act, comprehensive legislation which by definition distinguishes, inter alia, commercial, national and public television stations. Clearly the alternative proposal mooted by TVW contemplates the need for and establishment of a station other than a commercial station. namely a public television station. By the Act (Sect. 16) the Tribunal 1s empowered to grant licences and a scheme 1s provided by the Act, to enable the Tribunal to hold inquiries "before taking action" under the Act (Sec. 18(1)), or as directed by the Minister, into any matter relating to the operation of the Act (Sec. 18(2)(a). This would include, I assume, an inquiry at the direction of the Minister as to public need for a licence in an area and as to the type of licence. The Tribunal may take evidence on oath or affirmation. Section 25(1) requires the Tribunal to make a "thorough investigation into all matters relevant to an inquiry" and empowers rather than directs that it may give "all such directions and do all such things as the Tribunal considers are necessary or expedient for the expeditious and just hearing of the inquiry". Section 25(2) frees the Tribunal from compliance with legal rules of evidence and enables it to inform itself on any matter, in such manner as it sees fit. By reason of Section 25(3) the Tribunal is required to give persons interested reasonable opportunities to present their cases, to inspect documents and the like. Section 980A further requires the Tribunal in the exercise of its function under Part IIIB ( pursuant to which licences may be granted) to act "fairly and impartially" and to "observe the rules of natural justice". These statutory exhortations may be summed up as requiring thoroughness, re fairness and expedition but the key and common feature must be relevance to the task in hand. Such legislative directions are no doubt intended to protect the interests of those involved but of course it 1s inevitable that such interests will be diverse, and at times in conflict, especially when the issues are of tremendous importance, not only to commercial interests but to the public at large. It is inevitable, if the investigation is to be, for example, thorough, and the hearing expeditous that the Tribunal in the exercise of its discretion will be required to make considered but hard headed choices between the submissions of one party and the contrary submissions of another. And when the Tribunal is urged, as it was here, when considering the grant of a commercial licence to further its inquiry into the establishment and feasibility of a television station of a completely different nature it is perhaps understandable that it should examine the proposition with care. It is trite to say that such an examination has or may have relevance and thus thoroughness dictates it shall be pursued. But the interests of the public, the function of the Tribunal and the very administration of the Act may be jeopardised if every issue or submission raised must as a matter of law be pursued to the end merely because it may, in the view of the party, raising it have relevance or importance. The primary task of the Tribunal in such a case must be to give fair consideration to submissions and counter submissions, weigh them, and decide. 10. Contemporary legislation relating to review of such decisions was desiqned to ensure as far as practicable that fairness predominates. Upon review. and particularly in my view when interlocutory decisions are challenged. a Court should not lightly interfere. 'Decisions' made in the course of an inquiry of this nature will only be reviewed when an error of law is demonstrated. it is not for this Court to substitute its own views and judgment. (Bastiani v. Repatriation Commission 60 ALR 557 at 561). Indeed, the court in attempting to do s0, especially where relevance is an important issue, is likely to be at a disadvantage to a Tribunal nearing (as I am told was hoped to be) the end of a lengthy inquiry. When the error alleged arises out of the exercise of a discretion necessarily vested by the Act in the Tribunal as master of its own proceedings, particular caution is required. The words of Deand J. in Sean Investments and Mackellar (1981) 38 ALR 363 at p.375 are often cited. "In acase such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide," ll. See also the observations of Lockhart J. in Hamblin v. Duffy (1981) 34 ALR 333 at 335 and Fox J. in Borkovic v. Minister for Immigration and Ethnic Affairs (1981) 39 ALR 186 at 188. These observations are not at odds with the reasoning of the Full Court in Lamb v. Moss (1983) 49 ALR 533 at 557. In that case the Court referred to the words of Bowen C.J. and Lockhart J. in Australian National University v. Burns (1982) 43 ALR 25 at 30: "Commonwealth legislation in the field of administrative law is intended to seek a balance between justice to the individual and efficiency of administration, between private rights and public advantage. The administrative process must be efficient in the sense that government policy must be implemented effectively. Nevertheless the achievement of that objective must be consistent with fair play to the individual. The community must be satisfied that the administrative process is conducted with due regard to maintaining a balance between the public interest which it advances and the private interest which it disturbs." It seems to me that the Tribunal is required in the course of conducting this inquiry to seek to maintain the game type of balance consistent with the performance of its statutory function. Unless it is demonstrated that it has failed to do so, the Application cannot succeed. This is not to ignore the words of Aickin J. in Barrier Reef Broadcasting Ltd v. Minister for Post and Telecommunications and Another (1978) 19 ALR 425 at 445 cited by Forster J. in TVW Enterprises (Supra) at 96: "No doubt 12. the requirements of thoroughness, expedition and justice do not always proceed in unison, but the sectlon does not warrant the sacrifice of Justice to expedition". The issue there related to limits placed upon cross-examination and Forster J. in referring to that passage was considering the right of the incumbents in this inquiry to "attack and attempt to demolish the individual cases of the applicants as well as to deal with the matters of general public interest" (page 97). He went on to refer to the Tribunal's undoubted right to exercise restrictions "by the ordinary rules as to relevance and prolixity". He concluded that passage - "In the exercise of its power to control its own proceedings the Tribunal must from time to time make decisions as to relevance and as to prolixity, but it must bear in mind at all times the words of Aickin, J. in the Barrier Reef case, (supra), and not sacrifice justice to expedition". So the Tribunal in chartering its course and controlling its proceedings must heed the growing body of judicial pronouncements as to principles governing the conduct of inquiries which, as is here the case, are by their very nature not only important, but complicated and difficult. But the public interest requires a firm hold on the helm and it would be unfortunate if its statutory obligation to be thorough became confused by notions that undue prolixity can not in fact be controlled. In TVW Enterprises Ltd (supra) Forster J. held that the same Tribunal was obliged, in deciding whether or not it should refuse to grant the licence "of the kind contemplated by the notice" to consider the choice of 13. frequencies set out in the Minister''s original notice (set out at page 92 of his judgment) which in his view was a matter which was relevant to the public interest. His Honour stated (page 93): "Section 83(6)(d) lays down no criteria to guide the Tribunal as to the grounds upon which the grant of a licence contemplated by the matters set out in the notice may be refused. If, as I have said, it is correct to say the choice of frequency 13 one of the matters which are comprehended in the phrase 'licence of the kind contemplated' then, in my view, the Tribunal is obliged to consider this matter in order that it may decide whether or not it should refuse to grant a licence of the kind contemplated by the notice." It was submitted on behalf of TVW that by virtue of the same reasoning the Tribunal must receive and consider evidence relating to the desirability, public need for and feasibility of establishment of a television service of a nature quite different to that provided by a commercial station, the subject of the Minister's notice. Assuming I understand this submission that the Tribunal was here faced with similar considerations I cannot agree. The criteria set out in the Minister's notice which go to locality and technical requirements, ag I have said, were held to fall for consideration for the reasons mentioned by Forster J., as matters included in the notice and relevant to the public interest consideration. But I do not agree that the public interest consideration requires, rather than permits the Tribunal to admit the material in dispute as a matter of law on the basis that public interest in an alternative service and the feasibility of establishing it are or may be relevant . 14. to the present inquiry. $0 to nold could enlarge the scope of such inquiries to an impractical level and there may be sound policy reasons why the Tribunal in the exercise of its discretion would not wish to steer such a course. It is not necessary to deal in detail with the scheme of the Act relating to the grant of a new television licence. Clearly the Tribunal when and if called upon to consider questions of relevance in the course of inquiry held subsequent to the Minister's notice published under Section 82(1) must heed the form of that notice, the type of licence referred to and its specifications. Section 83 requires the Tribunal to hold the inquiry and grant the licence unless it considers by reason of Section 83(6) and the matters referred to in subsection (a)(b)(c) and (d) that it is advisable in the public interest to refuse to grant the licence to the applicants or one or more of them. It is as I have said for the Tribunal to determine questions of relevance during the course of the inquiry but I am not persuaded that by its rulings in the present case it has failed to discharge its statutory responsibility in that by its rulings, it "precluded itself from inquiring into matters which were relevant to the inquiry and which it was bound to investigate": (The Queen v.ithe Australian Broadcasting Tribunal and Others; Ex Parte Hardiman and Others (1980) 144 CLR 13 at 34.). 15. It is not I think necessary for me to refer in detail to the Tribunal rulings following TVW's proposal to call detailed evidence concerning alternative television. The rulings and the reasons supporting it were considered and made after the parties had the opportunity of making submissions. The Tribunal has not rejected the concept that public needs or preferences may he relevant. It is investigation of the specific proposals (which are certainly akin to, or contain material akin to an application fora public television licence) upon which the Tribunal refuses to embark. In so doing it expressed concern about the uncertainties of the proposal, and upon the material before me,it might fairly be said that the structure and financing of the mooted station, however thoroughly the submission was prepared, are not only novel but to use the Tribunal's words "must retain a speculative character for legal and practical reasons". Should the Tribunal have decided to admit the evidence at this stage of the inquiry there could be little doubt as to the rights of other parties to investigate and if warranted to call their own evidence on the many issues raised. This would tend to add anew dimension to the inquiry and at alate stage. In my opinion the Tribunal's view as to the relevance of this exercise must at this stage be a matter for the Tribunal, not for the court.By that I mean the Tribunal, at least on this issue, 1s ina far more advantageous position to decide what 1s or is not relevant or pertinent. 16. The fact that the Tribunal must heed public interest factors in examining the application for a new commercial licence. does not, in my view, require as a matter of law an omnibus type inquiry into the feasibility of other types of licence, should a party so submit. If this was so the Tribunal is likely to be deflected in the exercise of its specific statutory function. It is as the Tribunal stated, "a question of degree" and the requirement of a thorough investigation, does not embrace the notion that the boundaries of inquiry are without limit merely because some relevance, or possible relevance, may be demonstrated. Inevitably very wide considerations are raised when one talks in terms of public interest, public need or public preferences. It is reasonable to observe that the Tribunal when confronted with applications of this nature must keep a steady eye on the terms of the inquiry. I turn but briefly to the specific grounds of the application before me, amplified in the further and better particulars filed. I deal with them against the background that the Tribunal has indicated it "will hear evidence about public attitudes to additional television services and the effects which the grant of a commercial licence may have on alternative television generally" and its apparent acceptance of the broad notion that various models of alternative 17. television would be feasible. They are the Tribunal's expressions; I do not say that they were required as a matter of law. Grounds 1 and 2 assert the Tribunal by its rulings failed to observe the statutory obligation imposed by Section 25(1) to make "thorough investigations into all matters relevant to the inquiry" and that it erred in its construction of the section which imposed this "paramount obligation". Section 25(1) provides:- "The Tribunal shall without regard to legal forms and solemnities, make a thorough investigation into all matters relevant to an inquiry under this Division" (which deais with inquiries generally) "and may give all such directions and do all such things as the Tribunal considers are necessary or expedient for the expeditious and just hearing of the inquiry". The word "thorough" may by definition cover a range of application from "complete" to "not superficial" (The Concise Oxford Dictionary). In that section it is governed by relevance of the matters under investigation. I agree that thoroughness of the investigation 1s an important (as opposed to a paramount) obligation, but the demands or standards it imposes must be measured or tempered by the terms of the inquiry and other statutory guidelines as to the Tribunal's approach. There is as Aickin, J. observed in the Barrier Reef Case (supra) no "rigid" rule. "No doubt the requirements of thoroughness, expedition and justice do not always proceed in unison, but the section does not warrant the sacrifice of justice to expedition. The Board may have power to place some limits on 18. cross-examination but that would not warrant the denial of cross-examination to one party, while permitting it to another. Moreover, it would be an unauthorized exercise of the discretion to deny to all parties a right of cross-examination. It 18 not necessary in the present case to attempt to define the permissible limits of the directions as to cross-examination, or as to the conduct of a hearing, which the section authorizes. Indeed, it would be dangerous to attempt to formulate rigid rules on such a matter. In each case it must depend onthe detailed circumstances." I am not satisfied that the Tribunal's ruling offends this statutory direction. Paragraph 3 of the further and better particulars asserts that factors mentioned by the Tribunal in its ruling, (set out in sub paragraphs (a) to (f) of the particulars) indicate it took into account irrelevant considerations. In the exercise of its discretion these and other matters no doubt fell for consideration in this advanced inquiry and assuming as I must do that they had factual background I am not persuaded that as a matter of law they were irrelevant. Para 4 claims, in effect, that in assessing the public interest factor under Section 83(6)(d) the Tribunal must admit evidence to enable a comparision to be made between the nature of the television service specified in the Minister's notice of the 7th May 1984 and realistic alternative forms of television that may be prejudiced by the grant of a third commercial television licence. That in my view is not correct. Apart from the vexed questions of 19. prolixity such a broad proposition would tend to turn the inquiry unto a Section 18 exercise without a wide range of other parties who may be interested being on notice or given the opportunity of making submissions. Such an examination is not required by the Statute and does not of necessity arise in assessing the public interest factor in Section 83(6)(d). It is a very different matter to that dealt with by Forster J. in TVW Enterprises (supra), when, as I have said he held (at page 95) that the commercial viability of the proposed commercial station wag an issue in this inquiry necessarily examinable by the Tribunal as being a public interest consideration. Paragraph 5 alleges that the Tribunal was wrong in determining that Section 963(6)(d) required only, before a licence was refused, that the Tribunal be persuaded that a licence for that type of station would not be in the public interest . This it was contended was erroneous, the correct situation being that the Tribunal before grant of a commercial licence must be persuaded that this type of licence was required in preference to other forms of television service. Otherwise it was argued how can the overall public interest be evaluated.? I do not agree that Section 83(6)(d) must be so read, and as I have prefaced such a construction would involve consideration of the need for and perhaps feasibility of stations of a type neither contemplated nor referred to in the Minister's notice under paragraph 82(1)(a}. True it is that Forster, J. held in TVW Enterprises (above) that the Tribunal had the duty to , 20. investigate questions of commercial viability and the technical parameters referred to in the notice, but that wags essentially because such matters went very much to the public interest qua the granting of the commercial television licence in question. His Honour's views should not in my view be interpreted to apply further so as to compel, if sought, investigation into other types of services and their feasibility. To hold otherwise would not further the scheme laid down by the Act - In fact it could make it well nigh unworkable. Nor of course does the Act itself require such an all embracing investigation ina Section 83 inquiry. The Tribunal has not held that evidence of public attitudes (which igs not the sole measure of public interest) will be necessarily exciuded nor does it in this ruling appear to exclude consideration of possible prejudice to potential, alternative services. It is investigation of TVW'S specific proposals which it shuns. If the legislative requirement was that the Tribunal should if required, rather than upon its own motion, investigate alternative services upon a Ministerial notice relating to a commercial station, one would expect the legislation to have so provided. For this Court to hold that such an obligation exists - upon demand as it were - (and many parallel similar circumstances or applications can be envisaged), would tend to deprive the Tribunal of the ability to control its ow inguiries and assessments of relevance, a situation which may s00n prove unworkable. 21. Paragraph 6 contends that the Tribunal was entitled to hold asa basis for rejecting the application for a commercial licence that an alternative form of television service better answered or satisfied the public interest or that the grant of a commercial licence would prejudice the setting up of alternative forms of television. I do not read the Tribunal's rulings as seeking to negative its entitlement to roam further. but these are discretionary matters, very different to the proposition that as a matter of law the Tribunal must so act. In conclusion I say only this. The task of the Tribunal is formidable and its functions are of importance, not only to those who apply for or oppose the grant of licences, but to the community at large. The statutory requirement that it should act with thoroughness, justice and expedition, which the Tribunal referred to in its rulings, do not always rest easily together when the Tribunal's responsibilities are so wide. It is important that public confidence in the Tribunal be maintained and thus it is that in the conduct of its inquiries and in the face of competing submissions the Tribunal must seek to maintain a balance - not an easy exercise. The Courts in applications such as this have tended, by reason of the issues raised before them,to emphasise those aspects which go to thoroughness and natural justice. The history of this inquiry which appears in the material before me illustrates that the statutory reference to expedition also has, or should have, an important part to play in the scheme of things. ta ios) For these reasons I am not satisfied that the Tribunal misdirected itself as a matter of law in the exercise of its discretion, nor 15 1t proved that in so doing it took ainto account either irrelevant matter or failed to take into account considerations which properly called for consideration. I am not satisfied that any of the statutory grounds for Judicial Review have been made out and the application is dismissed. I will hear counsel as to costs. I certify that this and the twenty one preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Muirhead. be 4 yo Associate Dated: 7th February 1986 el Py — see : Feet oe ene roe INDUURY 2 .v0 Tue GsanT CS 4 TAP DOMMEAC IAG TELEVISION LICENCE a AOR THE PERTH HREA ' RUC CN ON PARI EVIDENCE ABGUT ALTERNATIVE TELEVIT iis fhis ruling arises from the wish of TVW to adduce evideata about 17S proposal for an alternative television channel and matiers relating to mublitc televisron. The arguments avout mhether TVW shoula be allowed to do so took nlace on € December, in later weitten submissions, ang on 23 and Zi January. The alternative television proposal i5 detailed ttm @ document entitled Alternative Television: summary of evidence ta the Australian Broadcasting Tribunals and as outlined in the hearing on 28 January 1986, TVW proposes to cali at least ten witnesses Im Support of the proposal. The proposal is for a specific staticn to provide alternative television. it has some similarities to a licence apnlicatran. It 18 rot a document tebe tne supmisston of Public Televiston to this taguiry- which Is concerned mainly to advance the case for puolic television it ceneral. TVW seeks to tender in support of tha proposal a researcn report prepared in Uecember 1995 by Elliott and Shananan Research and given to the other parties tm January. he report was made avatlable weil after the time required by directions of the Tribunal. The late stage at which TVW seebs to introduce the proposal and the reoort reises problems. First, the Act envisages an inquiry commencing with the loaging of licence aoplications, followed by Submissions sbo_t the grant af tha iicence. Although TVH aid mabe a submission, there 16 no mention in the submission oF such @ propesal. and anly a brief reference to alternative televiston. despite some references to alternative television im documents of Public TeLeviston and Swan. tt cannot be said tnat there has oeen reasonmacle notice of the TVW proposai. Seconds. tna Gc- requires the Tribunal to proceed witn thyrqguahwass- yustice ana exped. tion. There ts some injustice oc haraship +o parties such es the applicants ia requiring frem at this late stage to meet what 15 im essence 4 substantia: sdd.tron to the case against tne grant of a Licence. 1ce@ or hardshio can ce ected fa reagpen tnerr anuary the acolicanis SUTIN 6 Sar ther here are many Sttuations mhern Such imyy Brevented cr cured by AaLLowing parir1es a casesi obit an the hearing om 29 and Z1 vene@mentivy eraresseg the gatriment wbheoch Lengthening Je tHiG meaning would cause them. Tt 15 "lear that rn ere z Pt re sO wee de eel bret fist Lat OTN thec2® wtat DO & cunsigearsthie decrimeat to the agwlicants raia Situation wheee thay wast cha.loage tre ie proposal and research report and prepare tneir sn rsse5 1m vebittal. Thoroughness may ve served by this course, tut ustice and expediton may not be. The decision for the Trrsunal is a@ relative ave, attemotiag to serve all the rommerint Stat iaey cAquirements so far ab oscsstbica Turning to the nature of the proposal ana report, there is no doubt that the Tribunal shoula hear evidence about the . preferences nf the oublic and about how potential alternative services whicn could be presyudiced by the grant of the Licence the subject of this inqgutry. On the other hand. the Tribunal cannot investigate im this inquiry an application for a public television licence, The questton of deqree to be decided is how far the Tribunal should investigate particular proposals in the alternative or public televistron area. TVW'S argument, supported by Swan and Public Television, ts that tn order to fulfil its duty under s. 33(4) (4d) the Tribunal should tnvestigate the feasibility of a real alternative televiston proposal which has some actual support. It is certainly desirable that the investigation under S. S3(4)(d) should be as realistic as possible. Hovever, ¢t 1s not necessarily totally realistic to examine one of the many alternatives whtch miqht said to be presudiced by the grant of this Licence. Although tne proposal «ts realistic in the sense of having been really formulated and developed by TVW, it must also retain a speculative character for legal and practical reasons. Even if thts one proposal were exhaustively examined, tt would remain epen for the Minister- whose role it 1S under the Act to initrate an inquiry tnta tne grant of a particular kind of licence, to refuse to call applications for such a licence, or to call applicattons insteas for one a variety af different kinds of alternative licence. There «tS no necessary connection between the making of proposals for new kinds of licence and the calling of applications tor them. Even apart from that general consideration which would apply to any specific proposal for an alternative television service, there are a number of uncertainties about the TVW proposal . For example, the proposal (s bases on the expe_tation that the State and Federal Governments would contribute around $15m to the station. There ts no tndicatton that any government (or subsecr'ber) support would 1¢ fact be avatlable. Swan has indicated in principle that «ts parent company would contribute up ta $ 2.5 m. for a pertod of five years. There are uncertainties about that and ather financial aspects of the proposal. as well as about the Legislative and administrative steps which might first have to be taken before the station contemplated could come tnto existence. The uncertainties were canvassed by the applicants on 28 Januarv- This ts not to suggest that the proposal may not be destrable or possitle. But it its more the kind of proposal the feasibility _ - Lio Meter base et UESNALINE iV INGLY INT THO OF ANT of A THIRD COMMESACTIAL TELEVIZTON LICENCE POR THE PERTH AGEA _ RULING ON PROPOSED EVIDENCE ABOUT ALTERNATIVE TELEVISTIUN This vuling arises from the wish of TVW to adduce evidence about tts proposal for an alternative television channel and matiers relating to public televistan. The arguments about mhether TVW shoulda be allowed to do so took place on 4& December, in later written submissions, ang on 28 and 21 January. The alternative television proposal is detatled im a document antitled Alternetive Television: summary of evidence to the Australian Broadcasting Tribunal, and as outlined in the hearing on 28 January 1986, TVW proposes to cali at least ten witnesses tm Support of the proposal. The proposal is for a specific station to provide alternative television. it has some Simtlarities tao a iicence application. It 1s not a document Like the submission of Public Television to this inquiry. mhich Is concerned mainly to advance the case for public televiston in general. TVW seeks to tender in support of the proposal a research report prepared in December 197985 by Elliott end Shanahan Research and given to the other parties tn January. The report was made available well after the time required ty directions of the Tribunal . The late stage at which TVW seeks to introduce the proposal and the revort raises problems. First, the Act envisages an tnquiry commencing with the lodging of licence applications, follawed by submisstans about the grant of the Licence. Altaough TVW aid make a submisston, there +S no mention re the subm.sston of such & proposal. and anly a brief reference ta alternative television. Qespite some references to alternative television im aocuments of Fublic Televiston and Swan- tt cannot be said that there has been Teasonable notice of the TVW proposal. Second, the @t- requires the Tribunal to procced with throuahuess, »ustice and expedition. There 16 some tnyustice or haraship To parties sucn as the applicants im requiring them at this late stage to meat what 1s tm essence a substantial addition to the case against the grant of a licence. There are many sttuations when such injgwstice or hardship can be prevented or cured by allowing parties affected to reopen therr cases; tution the bearing om 28 and Zi January the apolicants venemently espressea the detriment which such a further Leugthenrnag of tris inquiry mould cause them. Tt a5 clear that » Ane Molt, 1 _. OU Ut LT an ee ot TERRATIVE Ty df uuicn COa.d ve Tousia2zred by the Minister tu 4 plarning DropysalL. JP im 2 Se. LE thaeiry Ft tre Tauiscer nad chasen to Barer 844 mold): OF Such AN INnGgar.ry. Altnovgh the reasons tor net qran-ing a licence contemplaten Cloyd t umdger S. 33 may inchade effects on potential public televisio'y Services, 17 +5 a tact that so far the Minister has called na applications for public television Licences tn Austealia. Evidence gtven on cenal? of the Department of Tommunicattans mm this imguirv was rhat "there are no pians at touts stage to proceed ta invite applications for publis telev.s1ion services." \Exhibst 7) Whilst tne policy of tha Government coulda devaiop ar change. *he current situation suggests thar there cauld te an.zy is:mited value in going so far into tre public television issue 385 to examine a specific and relatively detarlea model» as 3spposed ta more general tissues atfectinag pubsic television. Evidence 15 scarcely requtred ta show that various models of alternative television would be feasible. Tne Likelihood of feastoility would nat en itselt se a raason for refusing to grant a commereial tceieviston Licence. Tn2 irtocunal is not required by Ss. 3304) 0d) tro te persvaded *nat a naw commerctal television Licence «tS required in oreference ta aii otner forms of television service: Gut rather tnat tne grant of such a Licence woulda nat be ov the sublic interest. Having regaera ra ait the argumen's advanced, the Tribunal has decided that rt mill nat mmvest.aate *he specific proposal advanced ty TVG. The Yreounal mili hear evidence about public attitudes to addittonal television services anddine ettects wmicn the grant of a commercial Licence may nave on aliarnative television generaily, omtch it considers to be a more realistic and practical course than exr,amination of the soecifrc TVW propasal . It T¥w propeses evidence in *hes category- tr should nom tdentifv to the Teityunal the nature of that avidence. Tne Elliott and Shanahan report does deal with public attitudes, and the briownas mil) aamit relavant paris of 1t and the related aeviengance of Mr E.ztrott inmta eviuence. If practicable, the Tribunal will axcluge parts of the report which relate only to the specific TVW proposal. Lt will hear submissions from the parties ang comngel assisting about what parts of the report should oe anmitreg cons. .stently with this ruling. Gr lio tarnwacy the applicants matcated the hardship which reception af tne cardia y-presented Elliott ana Snaneshan ceport wonuLd cause ham. Recognising that tardsnip- tne Tribunal consigers mst it shawid wevertheless tere an oppartunity ta oe Further terormes avoal whe attitudes af "ha community. any app.ttatrons wv ue SlitaatS ror cansequeatral seopening at thie do acted en settee te Oe Meee th thet beccnce on Brouwess OF Outds. Peefer aura onl. of .oneSlaered sympathetically. 13! iW. Armstron Be Be. back Qtiune bvrgall We. AF, 1a