Pmmmeeet eines sate ene ante a ee et eee ee TCHWORDS Administrative Jaw - application for writ of mandamus against the Minister for Communications - duty of Minister to consider application for a supplementary television licence - discretionary factors - whether unwarrantable delay by the applicant - whether full disclosure of all relevant matters by the applicant when applying for order nisi - whether proposed legislative changes would render relief futile. Administrative Decisions (Judicial Review) Act 1977 Broadcasting and Television Act 1942, s3.82A, 87(3), 98(c) Televisi endment Act 1985, s.98(c) oadc n Judiciary Act 1903, s.39B PLICATION OF MANDAMUS AGAINST THE MINIS FOR COMMUNICATIONS, EX PARTE NBN LIMITED NO. G 379 OF 1986 BOWEN C.J. 2 December 1986 Sydney. TRALIA ) IN THE FEDERAL COURT OF AUS' NEW SOUTH WALES DISTRICT REGISTRY } No. G379 of 1986 GENERAL DIVISION ) Application for writ of mandamus against the MINISTER FOR COMMUNICATIONS Respondent Ex parte NBN LIMITED Prosecutor JUDGE MAKING ORDER: Bowen C.J. PLACE: Sydney DATE: 2 December 1986 MINUTE OF ORDER COURT_O F 1. The order nisi for a writ of mandamus be made absolute. 2. The Minister for Communications pay to NBN Limited its costs of the application to date. 3. The operation of this order be suspended for a period of 14 days with liberty to either party to apply to this Court in the meantime for further order. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules dele n hinRRA eaeeee= meneame ane teeh: atoms ennen ARERR AnadnEtn ceenenmeemenasnammanmieeneemnnemnieecnmmaTe come tor eR en ee a a a IN OURT OF AUSTRALIA ) NEW SOUTH ISTRI GISTRY ) No. G379 of 1986 ) Application for writ of mandamus against the MINISTER FOR Lexe) ICATIONS Respondent Ex parte NBN LIMITED Prosecutor REASONS FOR JUDGMENT C.J. On the 2nd September 1986 an order was made by a Judge of this Court that the Minister for Communications appear on the 13th September 1986 to show cause why a writ of mandamus should not be issued directing him to deal with the application by NBN Limited, the prosecutor, for a supplementary television licence in accordance with sub-section 82A'(4) of the Broadcastin and Television Act 1942 ("the Act"). The matter is before me on the return of that order and the question is whether it should be made absolute or discharged. NBN Limited is the holder of a licence for a commercial television station within the meaning of Part IIIB of the Act. This licence was for a period of three years ending on the 3lst October 1986. It is common ground between the parties that an application for a renewal of this licence was made and is currently under consideration by the Australian Broadcasting anne acre etateemmeeenatienn eeameneeaeneenemammadinin. ne eemenenennmnmetentemnmemnmetninnmmnenn tet tients demen aaetiehaeanemnaeereee ee Te eS - atin wet ee = ~ wt ee ee Tribunal and that it continues in force while the application for renewal is still pending (see sub-section 87(3)). On the 20th September 1984 NBN Limited lodged with the Minister, in accordance with a form approved by hin, an application for a supplementary television licence under sub-section 82A(2) of the Act. The relevant provision of sub-section 82A(2) is as follows: "862A. (2) The holder of a licence for a commercial television station or a consortium each member of which is the holder of such a licence may lodge with the Minister, in accordance with a form approved by the Minister, an application for the grant of a licence for a television service, for the purpose of serving, by means of one television station and, if necessary, one or more television translator stations, an area the specification of which is to be determined by the Minister in accordance with sub-sections (7) and (8)." Sub-section 82A(4) is as follows: "(4) Where an application (other than an application to which sub-section (5) applies) is lodged under sub-sections (1) or (2), the Minister may - (a) refer the application to the Tribunal, together with a notice in writing setting out - (£1) the specification of the area determined by the Minister to be served in pursuance of the supplementary licence; or (ii) an outline of the other specifications to which it is proposed the supplementary licence, is to be subject; or (b) dismiss the application for a reason relating to technical matters or to the planning or development of broadcasting and television services. re renee ere eet ements ee rig tema ter ATA" * EERE 0 oR CR LY ESET ESET REE RR eran JS TY ey ere emer er a Ns ar et Se AR I RNP i cere ee ee 8 "- os It is claimed by NBN Limited that the Minister has a duty under sub-section 82A(4) to deal with the application in the way set out in paragraph (a) or (b) of that sub-section; that NBN Limited has requested the Minister so to deal with the application but the Minister has refused to make a decision under sub-section 82A(4). It was pointed out by counsel for the prosecutor that, although the Act had been amended from time to time since the application was lodged, the Act continued to apply to NBN Limited's application by virtue of paragraph 98(c) of the Broadcasting and Television Amendment Act 1985. Briefly, the claim put by counsel on behalf of NBN Limited is that there was a duty resting upon the Minister under sub-section 82A(4); that NBN Limited has the right to have that duty performed; that there is no appropriate way of enforcing the performance of that duty other than by mandamus; that a demand has been made to the Minister to perform that duty and he has, in effect, refused to doso; and, finally, that the obligation resting on the Minister is not a matter of discretion on his part but an obligation which he is bound to perform. The evidence is that NBN Limited wrote to the Minister by letter dated 14th August 1986 requesting him to deal with the application in accordance with sub-section 82A(4) and asking him to respond to the request by Thursday 28th August 1986. In reply co ne nn nn i et ee ee -_ = ee re ee a letter signed by the Minister's senior private secretary dated 25th August 1986 expressed thanks for the letter of 14th August 1986 and stated that the Minister had asked the Department "to examine your concerns and he will write in detail in the near future". By communication dated 29th August 1986 from NBN Limited to the Minister the receipt of the letter of 25th August was acknowledged and it was stated NBN Limited "regards your failure to make a decision pursuant to sub-section 82A(4) as unreasonable delay ... and gives notice that it proposes to apply to the Federal Court for an order of review in respect of your failure to make a decision". No appliation under the Administrative Decisions (Judicial Review) Act was made in respect of the decision but the application for an order nisi was made in reliance upon the jurisdiction conferred on the Federal Court by 8.39B of the Judiciary Act 1903. It appears from a Ministerial press release dated 2nd October 1984 that when it became possible to apply for supplementary television and r-dio licences exactly 100 formal applications had been received by the cut off date of the 20th September 1984. So far as applications for supplementary television licences are concerned the evidence indicates that one only of these proceeded to any significant degree. This was an application for a Canberra commercial supplementary television licence. According to a Ministerial press release dated 29th November 1984 this application by Capital 7 was the first for a supplementary licence referred to the Australian Broadcasting ae — renee mee ee ee ek ee ee. Tribunal for decision. He indicated his Department was processing a large number of applications and a steady stream of them would now begin flowing to the Tribunal It was said the Australian Broadcasting Tribunal was expected to begin hearing the Capital 7 application in February. In February 1985 the Australian Broadcasting Tribunal put in train the procedures for dealing with that particular reference. It published notices required under sub-section 82A(9) in respect of the application. It began to hold the inquiry referred to on the 18th July 1985 and the inquiry continued on the 19th July, the 2nd to llth October 1985 and 13th to 20th February 1986. On the 19th June 1986 the Tribunal announced it had adjourned the inquiry. No date was fixed for its resumption. It appears the inquiry was being held jointly with inquiries into two applications for supplementary radio licences for the Canberra region. There were 8 parties to the joint inquiries one of which was the applicant for the supplementary television licence and another of which was a party opposing the grant of that licence and proposing an independent television service. Counsel for the Minister did not put forward a submission that there was no duty upon the Minister to deal with the application of NBN Limited in accordance with sub-section 82A(4) either by referring it or by dismissing it. He argued that it was unnecessary to approach this question since the application of NBN Limited to the Court should be dismissed upon discretionary grounds. He relied upon three separate grounds for Or rn nr arn ane rept one renrnnnn fs we woe eee eR eee ore ee exercising the Court's discretion against NBN Limited. I do not deal with these in the order in which he submitted them but for convenience deal first with his submission that NBN Limited's application to the Court should be dismissed on the ground of unwarrantable delay in applying for the remedy of mandamus (The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Limited (1949) 78 C.L.R. 389 at p.400). Counsel pointed out that as long ago as the 9th July 1985 the Minister by a press release had referred to a report received bearing the title "Future directions for commercial television" which was the work of the Forward Development Unit of his Department. Restricting exposition of this to the relevant portions it included the following statement: The Minister said that pending Government decisions on the report no further applications for commercial television supplementary licences would be referred to the Australian Broadcasting Tribunal for inquiry. "Despite the merits of individual applications it does not seem sensible to refer any more applications to the Tribunal until the Government has given full consideration to the FDU report and reacted decisions," Mr Duffy said. Later in the statement occurs the following: Mr Duffy said he was studying the FDU report with considerable interest and added that although he expected the Government to make decisions at the end of the year, he had no preferred course at this point. oe ene owen ary seen - ae SRE YIN REET See ee ee ee ene ermenpOS a oe ae CST rr 7 2 7 — It was common ground that NBN Limited was aware of the various statements issued by the Minister. Counsel for the Minister argued that because of the terms of the press release of the 9th July 1985 NBN Limited was aware that its application for a supplementary licence would not be referred to the Tribunal for inquiry and should at that point have applied for a mandamus if it wished to do so. He argued there was unwarrantable delay in applying at this late time. In answer to this counsel for NBN Limited pointed out that the press release really went no further than indicating that the Minister was studying the report with considerable interest and that he expected the Government to make decisions by the end of the year and that he had no preferred course at that point. In the circumstances it was reasonable for NEN Limited to hold its hand at that stage and see what occurred by the end of the year. In my opinion the terms of the press release of the 9th July 1985 would be insufficient on its own to lead me to conclude that there was unwarrantable delay in applying for mandamus. However, counsel for the Minister went on to point out that the actual decision by the Government not to proceed with the supplementary licence scheme was announced by press release issued by the Minister on the 29th May 1986. The relevant portion of this press release states: "The supplementary licence scheme for regional commercial television is to be abandoned, but the Government is keeping its options open on the supplementary licence scheme for regional commercial radio." It was suggested that NBN Limited could have moved fora mandamus after this announcement should it have been advised to do so because it was then plainly aware that the Minister would not refer its application for a supplementary licence to the Tribunal because the Government had abandoned that particular scheme. There is a good deal of force in this contention. On the other hand, application for the Canberra supplementary television licence had not been terminated at that time. Indeed it was not until 19th June 1986 that the Tribunal dealt with this matter and it then announced that it had adjourned the inquiry. It did not reject the application. In fact, as has been indicated, NBN Limited applied expressly to the Minister to refer its ¢ application for a supplementary television licence by letter dated the 15th August 1986 and in reply didnot receive a statement that the Minister certainly would not refer it; om the contrary it was informed by letter dated 25th August 1986 that the Minister had asked his Department to examine the Company's concerns and offered to write in detail in the near future. Curtously, in the affidavit of the Director of the Legislation Section in the Minister's Department, Mr John Robert Doherty, sworn on the 25th September 1986 it is stated that:- "On 25th August 1986 I forwarded advance drafting instructions to the said Office (office of Parliamentary Counsel) which included instructions to repeal all provisions in broadcasting legislation applying only to supplementary television licences and to amend those provsiions applying to both supplementary radio and television licences so that they apply only to supplementary radio licences." 2 rire piremieere piece ameemep any ein mene meron mete manne aaa ne mani ne td oe nee ares eet me It will be noted that on the very day that the senior private secretary of the Minister was informing NBN Limited that the Minister had asked the Department to examine their concerns Mr Doherty had forwarded drafting instructions to amend the law to repeal the provisions relating to supplementary television licences. No suggestion was made that the senior private secretary of the Minister was aware that the Department had on that very day forwarded drafting instructions to Parliamentary Counsel to repeal the provisions but the letter of the 25th August 1986 is drafted somewhat in the form of a holding reply. In the event, after the 28th August 1986, NBN Limited treated it as a refusal to refer and on this basis approached the Court for the order nisi which it obtained. The question on this aspect of the matter is whether there was such unwarrantable delay in applying for the remedy of mandamus as would lead the Court to discharge the order nisi. I am not prepared to hold that there was such delay as should lead the Ccust to deny relief to NBN Limited operating from the time of the early press release dated 9th July 1985. However, delay following the public announcement in the Minister's press release of the 20th May 1986 raises a serious question in my mind whether there followed unmwarrantable delay on the part of the NBN Limited in making this application. Other cases have been referred to on the question of delay but they relate to circumstances s0 a@ifferent that they are of little assistance. Here was a situation with discussion of government policy proceeding from 10. time to time, the Australian Broadcasting Tribunal dealing with applications relating to Canberra only during the whole period and it is difficult to arrive at a conclusion as to what times are reasonable or unreasonable in this area of human affairs. On the whole I have come to the conclusion that the delay which occurred after the 20th May 1986 was not so great that it should lead to relief being denied to NBN Limited if it was otherwise found to be entitled to relief. The second ground of discretion on which it was argued for the Minister that relief should be refused was the likelihood of legislative change which would render the question of referring the matter to the Australian Broadcasting Tribunal academic and futile. In evidence I have a copy of the Broadcasting Amendment Bil] 1986 and the Explanatory Memorandum circulated with the Bill. This Bill provides in effect that the supplementary television licence scheme would be abolished assuming the Bill was passed into law. The Bill appears to have been introduced into the House of Representatives on the 12th November 1986. The copy of the Votes and Proceedings of the House of Representatives on the 12th November 1986 is in evidence. I note that the Bill was on that day read a first time, that the Minister moved that the Bill then be read a second time, presented the Explanatory Memorandum, that the debate was adjourned and that the resumption of the debate was to be an order of the day for the next day of sitting. I have a copy of the Votes and Proceedings of the House of Representatives of the ae nineteen baa atharerrtarm ate _- pte oe at ee -- - _ — il. \ 17th November 1986 which shows that this Bill was dealt with. The Minister made a statement adding to his second reading speech and presented a paper by leave dealing with regional commercial television and debate took place. Also in evidence are the Votes and Proceedings of the on House of Representatives of the 18th November 1986 which indicate that the debate continued on that day and the second reading was passed, dealt with in committee and finally, the committee's report having been adopted, the Bill was read a third time. The Journal of the Senate of the 20th November 1986 is in evidence. This shows that the Senate received from the House of Representatives the Bill and that the Bill was read a first and second time but the debate was adjourned to be an order of the day for the next day of sitting. I was informed from the Bar table that it was anticipated the debate on the second reading in the Senate would take place during the week following this hearing before ne. These facts raise a serious question whether the issue of mandamus against the Minister to perform a duty under sub-section 82A(4) either to refer the application to the Australian Broadcasting Tribunal or to dismiss it would be futile. Certainly it would be futile if the Senate passes the Bill and it is assented to and comes into force. However, it was argued on behalf of NBN Limited that it was not for the Court to speculate on the future progress of this legislation. It had to apply the law as it stood at the time the Court was considering the matter. Reference was made to the remarks of Starke J, > OT mrerrrterenss ewer anemia Fa IIS = SNARE Sy eres opm etn grag meme -- te ee en rene per ne ae dissenting, in Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Limited (1935) 54 C.L.R. 236 at pp.253-254. As against this it was argued by counsel for the Minister that Mr Justice Rich, who was one of the majority, in the same case at p.244 was in effect expressing a different view. I do not think it is necessary to come toa conclusion on that particular matter. f would merely state that in general terms I agree with the proposition that the Court applies the law as it is in force when a matter is before the Court and in general does not speculate as to the future course of legislation. On the other hand, when exercising a discretion upon an application for a prerogative writ or any type of discretionary relief where legislation is actually in progress the Court is not obliged to shut its eyes to the realities and to ignore what is taking place. The Court may at least take into consideration the facts as they are proved to exist at the time that it is considering the exercise of such a discretion. But even when I adopt that position it raises a agifficult question. The Court is reluctant to engage in a futility but, on the other hand, it is the only avenue open toa person whose existing rights are being adversely affected to have them protected against action at least not yet authorised by law. Iwill return to this question after dealing with the third matter raised by counsel for the Minister on the question of discretion. It was submitted that when NBN Limited applied for the order nisi, which it did in reliance on an affidavit sworn by er i pera ee — en ee inn rr en ee ee ee ee eee ~ ——— onemnen eet NE RENEE AT 13. Joseph Ronald Sweeney dated lst September 1986, it was under a duty to disclose to the Court all relevant matters and did not do so. The matter omitted was said to be the Minister's press release dated 9th July 1985, the relevant portions of which have already been quoted. It was argued that had that press release been disclosed on that occasion the Judge would have refused to grant the order nisi on the ground of unwarrantable delay. I have already indicated my view that having regard to the qualified terms of the press release I would not regard it as a relevant piece of evidence in the sense of being decisive on the question of unwarrantable delay on the part of NBN Limited. The failure to disclose it is not, in my view, a matter which should lead to a refusal to grant a writ of mandamus on discretionary grounds of non-disclosure. Returning to the main issue, which is whether the making of the order for writ of mandamus would be a futility in the present case, I think this a matter of considerable difficulty. One matter which has been pointed out to me by counsel for NBN Limited is that all the legislative steps which are in evidence and to which I have referred have been taken since NBN Limited's letter of the 14th August 1986. Indeed, all of those steps have been taken since the 2nd September 1986 when the order nisi was granted. In my opinion, NBN Limited is entitled to have its rights considered basically as they stood when it commenced its proceedings on the 2nd September 1986 although no doubt if the law is changed subsequently by the passing and bringing into ne tte ee paren tte rt en ear ermine eer ae me we ee nt gee meee 14. operation of an Act of Parliament this would certainly affect the course which the Court would take. In this unusual situation I have come to the conclusion that NBN Limited has made out a case of breach of duty on the part of the Minister under sub-section 82A(4) of the Act and that it is not at this stage excluded by discretionary grounds from having the order nisi made absolute. I have considered whether I should stand the matter over to see what action is taken by the Senate or whether the Bill goes in its present form to the Governor-General and is brought into law. It appears to me the prosecutor is entitled to have an answer from the Court but I am not prepared to give an answer which may result ina futility. Accordingly, I propose to make an order that the order nisi for a writ of mandamus be made absolute and that NBN Limited be paid its costs of the application to date by the respondent. But I will make a further order that the operation of this order be suspended for a period of 14 days with liberty to either party to apply to this Court in the meantime for further order. " I certify that this andthe thiteen (3) prececing pages are a true copy of the Reasous for Jucgment herein cf his Hows the Chief Judge, Sir Nigel Bowen (ley WL Associate Dated: 2 Decambor \1ASG