IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G989 of 1988 ) GENERAL DIVISION ) BETWEEN: ALAN BOND First Applicant BOND MEDIA LIMITED Second Applicant BOND CORPORATION HOLDINGS LIMITED Third Applicant QUEENSLAND TELEVISION LIMITED Fourth Applicant CONSOLIDATED BROADCASTING SYSTEM (W.A.) PTY. LIMITED Fifth Applicant NORTHWEST RADIO PTY. LIMITED Sixth Applicant DARWIN BROADCASTERS PTY. LIMITED Seventh Applicant AND: AUSTRALIAN BROADCASTING TRIBUNAL Respondent CORRIGENDUM Amendment to the judgment of his Honour Mr Justice Morling of 9 June 1988 - page 18 line 20 - delete "overlooked" Down hh ——-NAMOTDOUGALL 3 August 1988 ASSOCIATE TO MORLING J. JUDGMENT No. 2 TBA RR ee CATCHWORDS BROADCASTING AND TELEVISION - Australian Broadcasting Tribunal - substantive powers - proposal to exercise - inquiry - whether intention to exercise power necessary before holding inquiry - inquiry held before intention formed - whether inquiry invalid. Broadcasting Act 1942, 58.7, 17, 17A, 17C, 124 ALAN BOND; BOND MEDIA LIMITED; BOND CORPORATION HOLDINGS LIMITED; QUEENSLAND TELEVISION LIMITED; CONSOLIDATED BROADCASTING SYSTEM (W.A.) PTY. LIMITED; NORTHWEST RADIO PTY. LIMITED; DARWIN BROADCASTERS PTY. LIMITED v. AUSTRALIAN BROADCASTING TRIBUNAL No. G 989 of 1988 Morling J. 9 June 1988 Sydney IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G989 of 1988 ) GENERAL DIVISION ) BETWEEN: ALAN BOND First Applicant BOND MEDIA LIMITED Second Applicant BOND CORPORATION HOLDINGS LIMITED Third Applicant QUEENSLAND TELEVISION LIMITED Fourth Applicant CONSOLIDATED BROADCASTING SYSTEM (W.A.) PTY. LIMITED Fifth Applicant NORTHWEST RADIO PTY. LIMITED Sixth Applicant DARWIN BROADCASTERS PTY. LIMITED Seventh Applicant AND: AUSTRALIAN BROADCASTING TRIBUNAL Respondent CORAM: MORLING J PLACE: SYDNEY DATE: 9 JUNE 1988 REASONS FOR JUDGMENT In these proceedings under the Administrative Decisions (Judicial Review) Act 1977 the applicants seek orders of review of decisions made by the Australian Broadcasting Tribunal in the course of an inquiry being conducted by it pursuant to s.17C of the Broadcasting Act 1942. In their application as originally framed the applicants sought relief only in respect of the refusal of the Tribunal to furnish further and better particulars of matters into which the Tribunal was inquiring. However, the amended application seeks much wider relief. It is now claimed that there 1s no statutory warrant for the inguiry upon which the Tribunal has embarked. This claim raises for consideration an important question affecting the powers of the Tribunal to hold inquiries under Division 3 of Part II of the Broadcasting Act. The Facts Companies associated with Mr Alan Bond hold a commercial television licence for channel QTQ Brisbane. They also hold several commercial radio licences. Mr Bond and his companies are the applicants in these proceedings. On 5 February 1988 the fribunal wrote to the applicants advising that it had examined and considered an unedited tape of an interview given by Mr Bond on the programme "A Current Affair" on 22 January 1988 and had also examined the transcript of a recent licence renewal inquiry in respect of the licence for channel QTQ. The letter stated that the Tribunal had "decided to hold an inquiry into the issues raised", that the issues for the inquiry were being settled and that they would be forwarded to the applicants when finalized. On 2 March 1988 the Tribunal caused a Notice of Inquiry to be published in the Government Notices Gazette and in a number of metropolitan daily newspapers. read, in part, as follows: "BROADCASTING ACT 1942 RADIO AND TELEVISION STATIONS ASSOCIATED WITH MR ALAN BOND NOTICE OF INQUIRY SUBMISSIONS INVITED The notice The Australian Broadcasting Tribunal has commenced an inquiry into issues relating to the following commercial radio and television licences owned by companies associated with Mr Alan Bond: Tv Radio QTQ BRISBANE 6AM NORTHAM 6KA DAMPIER - KARRATHA - ROEBOURNE 6KG KALGOORLIE 6NW PORT HEDLAND 8DN DARWIN This inquiry follows the viewing by the Tribunal of an unedited tape of an interview given by Mr Alan ' Bond on the program "A Current Affair" on 22 January 1988. The Tribunal also examined the transcript of the last QTQ-9 renewal. The issues which will be addressed during the inquiry are as follows: 1. Whether anything connected with the payment of $400,000 in settlement of a defamation action by Sir Joh Bjelke-Petersen against Queensland Television Limited has any implications as to the suitability of companies associated with Mr Alan Bond to hold the above broadcasting licences. In this context it considered whether Mr. Bond and will be companies associated with him are fit and proper persons to hold the above licences. 2. Whether it would be advisable in the public interest for the Tribunal to do any of the following: (a) suspend any of the said_ licences associated with Mr. Bond; (b) revoke any of the said licences; (c) impose or vary conditions on any of the said licences. 3. Such other matters relevant to the inquiry as the Tribunal sees fit. eee Any person wishing to make a submission on these issues may lodge it with the Tribunal by 13 April 1988. Thereafter correspondence passed between the applicants' solicitors and the Tribunal in which clarification was sought of the matters into which the Tribunal proposed to inquire. On 11 April 1988 the applicants' solicitors lodged written submissions with the Tribunal in response to the notice published in the Gazette. The submissions were plainly made upon the basis that the inquiry would be conducted by the Tribunal under s.17C(1) of the Act and the Australian Broadcasting Tribunal (Inquiries) Regulations which have application only to inquiries conducted under s.17C(1). It will be necessary later in these reasons to refer in detail to the terms of s.17C, but it is sufficient for present purposes to note that when the Tribunal proposes to exercise any of its substantive powers it is required by s.17C(1) to hold an inquiry into the proposed exercise of the power. The power to vary, revoke or impose a condition on a licence is one such substantive power (s.17A(2)(c)). On 14 April 1988 the applicants' solicitors wrote to the Australian Government Solicitor complaining that they had not been given certain particulars which they had sought and drawing attention to the requirements of reg. 9(3)(b) which requires that the Notice of Inquiry must specify the issues to be considered in it. Other correspondence concerning the matter of particulars passed between the solicitors. It seems to have been assumed in the correspondence that the inquiry was to be held under s.17C(1). On 5 May 1988 the Australian Government Solicitor wrote to the applicants' solicitors advising that the Tribunal had not then concluded its investigation preliminary to the public inquiry. The letter further stated, inter alia: "In an effort to assist you, I set out below the issues which counsel assisting the Tribunal currently perceives to arise within the issues nominated by the Notice of Inquiry : 1. Mr. Bond's belief as to the truth or substantial truth of the story broadcast on 2 February 1983 on QTQ 9, Brisbane, and the basis or bases of that belief. 2. Whether there were facts concerning the truth of the story of which Mr. Alan Bond was unaware and whether Mr. Bond took reasonable steps to acquaint himself with those facts, 3. Whether the defamation action instituted by Sir Joh Bjelke-Petersen in consequence of that story was being actively prosecuted by him prior to the acquisition of QTL by a company associated with Mr. Bond. (It appears that QTL is the company which holds the licence for channel QTQ Brisbane). 4. The advice possessed by QTL and its defamation insurers as to prospects of success and/or extent of potential damages in relation to the defamation action. 5. The nature of the conversations between Sir Joh Bjelke-Petersen and Mr. Bond, or persons associated with Mr. Bond, touching upon the defamation writ. 6. Whether those conversations amounted to a demand by Sir Joh for settlement of the defamation writ having regard to factors other than the legal merits of the defamation action. 7. The circumstances of Sir Edward Lyons' and Mr. Peter Gallagher's appointment to the QTL Board. 8. Sir Edward Lyons' disclosure to the QTL Board of his knowledge of, and involvement in, the facts which contributed the basis for the story broadcast on 2 February 1983. 9. Sir Edward Lyons' purpose in raising the subject of the Bijelke-Petersen writ on the QTL Board. lo. The advice taken by Mr. Bond as to the appropriateness of the settlement reached with Sir Joh Bjelke-Petersen. 11. The extent of inquiry made by Mr. Bond into the likely level of damages were QTL to fail in its defence of the defamation action. 12. The sum paid by way of settlement of the defamation action and the person who paid that sum. 13. The extent to which QTL Board members were kept aware of the settlement negotiations and their outcome. 14. The meaning to be ascribed to Mr. Bond's remarks made to Ms. Jana Wendt, particularly in relation to evidence given by Mr. Bond before the Tribunal in 1986. 15. The circumstances in which the programme, which had originally broadcast the story on 2 February 1983, was terminated by QTQ management. You will appreciate the abovementioned issues cannot be regarded as finally delimiting the scope of the inquiry, and that further relevant issues might arise in light of evidence given at the hearing or information provided to the Tribunal." On 6 May the applicants' solicitors sought further particulars and on the same day, the Australian Government 7. Solicitor replied contending that he had already provided "a comprehensive list of issues which Counsel currently perceives to arise within the parameters by the Notice of Inquiry". The letter also stated: "I remind you that the Tribunal's Inquiry is not in the nature of ordinary litigation. There is no question of presenting a 'case' against your client. The essence of the Inquiry is the knowledge that the Bjelke-Petersen defamation action was settled for a substantial sum, that Mr Bond earlier gave evidence thereon to the Tribunal and then subsequently made certain comments in relation to the settlement to Ms Jana Wendt. What the Inquiry will look at 1s whether in all the circumstances surrounding those events, a particular conclusion should be drawn. In this regard, neither I nor Counsel assisting the Tribunal have any views whatever. 'Particulars' of any issues will emerge as the Tribunal's preliminary investigations unfold and in the course of evidence given by witnesses at the Inquiry." On 12 May the Australian Government Solicitor wrote to the applicants' solicitors advising them of a revised list of issues which counsel assisting the Tribunal perceived to arise within the parameters nominated in the Notice of Inquiry. The revised list was in substantially similar terms to the list supplied on 5 May 1988. tThe letter stated that the issues could not be regarded as finally delimiting the scope of the inquiry, and that further relevant issues might arise in the light of evidence given at the hearing. On 24 May the applicants' solicitors wrote to the Australian Government Solicitor seeking particulars of each of the issues the subject of the inquiry. He replied on 25 May stating that the issues remained those set out in the Notice of Inquiry and that the "factual issues" perceived to arise by counsel assisting within those general issues were set out in the letter of 5 May. After referring to some additional issues that had emerged during the hearing (which had already commenced), the letter continued: "The question of whether any (and if so which) substantive powers are to be exercised by the Tribunal must await the factual determinations. I understand that the Tribunal has not formed any intent to exercise any substantive power adversely to the interests of the licensee at this stage. Should that position change appropriate notice will be given to you and opportunity afforded you to be heard." On 26 May, the applicants sought from the Tribunal a direction that counsel assisting the Tribunal provide to the applicants the particulars sought in the letter of 24 May. On 27 May, the Tribunal refused to give the direction and, in the course of giving its reasons for such refusal, said: ".,.. ain so far as the Australian Government Solicitor's letter of 25 May 1988 purports to set out the present thinking of the Tribunal, it does so accurately. We have not formed any intent to exercise any of our substantive powers under the Broadcasting Act 1942 in a manner adverse to the censees. ould that position change we shall inform the licensees before finally deciding whether to exercise any of our powers giving the licensees adequate opportunity to place material before us and to make submissions." The Tribunal indicated that its inquiry would proceed on 31 May. The applicants then sought relief in this Court. After the commencement of the proceedings the applicants' solicitors wrote to the Australian Government solicitor requesting to be informed under which sub-section of the Act the inquiry was being conducted. In response to that letter the Australian Government Solicitor advised that ".... the nature of the inquiry is as previously advised viz the inquiry is investigative and no present intention exists on the part of the Tribunal to exercise substantive powers adversely to your clients' interest, though the possibility that it may do so at a later stage remains open." The Legislation Provision is made in s.7 of the Act for the establish- ment of the Tribunal. Its functions include the grant, renewal, suspension, revocation and acceptance of the surrender of licences (s.16(1)(a)). Licences include commercial radio licences and commercial television licences (s.4(1)}. For the purpose of exercising its powers and functions under the Act the Tribunal has power to make such orders, give such directions and do all such things as it thinks fit (s.17(1)). Such orders have the force of law (5.17(2)(c). A person shall not contravene or fail to comply with any provision of an order made by the Tribunal which is applicable to him (s.17(4)). Division 3 of Part If of the Act makes provision for inquiries. An inquiry may be an "area inquiry" under s.18A, a "directed inquiry" under s.18, or an "ordinary inquiry" under 8.17C (s.17A(1)). 10. Section 17C is of central importance. It provides as follows: "17C. (1) Where the Tribunal receives an application under this Act requesting the exercise of any of its substantive powers, or proposes to exercise any of its substantive powers otherwise than on such an application, the Tribunal shall hold an inquiry into the requested or proposed exercise of the power. (2) Where the Tribunal proposes, either on its own initiative or at the request of any person, to exercise any of its powers, other than a substantive power, under this Act or the regulations, the Tribunal may in its discretion hold an inquiry into the proposed exercise of the power. (3) The Tribunal may, in its discretion, hold an inquiry into - (a) any matter relating to the operation of this Act; (b) any matter relating to broadcasting services; or (c) any other matter, being a matter with respect to which the Parliament has power to make laws by virtue of paragraph 5l(v) of the Constitution, that, in the opinion of the Tribunal, relates directly or indirectly to a matter referred to in paragraph (a) or {b). (4) A reference to sub-section (3) to a matter shall be read as not including a reference to - (a) a matter relating to the Corporation or the Service or to the affairs or operations of the Corporation or the Service; or (b) a matter in respect of which the Tribunal is required or permitted to hold an inquiry by virtue of any provision of this Act (other than sub-section (3) or sub-section 18(2)). (5) Subject to sub-section (6), an inquiry under sub-section (1) shall be held in accordance with this Division and the regulations. 11. (6) Notwithstanding the preceding provisions of this section, regulations under section 134 may make provision for and in relation to - (a) the deferral, suspension or termination of ordinary inquiries; and (b) the holding of - (i) joint ordinary inquiries into the exercise of 2 or more powers by the Tribunal; (ii) separate ordinary inquiries into different aspects of the exercise of the same power by the Tribunal; and (iii) ordinary inquiries into certain aspects only of the exercise of a power by the Tribunal. (7) Where the Tribunal determines that for reasons of urgency it is not practicable for the Tribunal or another person to comply with a particular requirement or particular requirements of the regulations or of this Division in relation to the holding of an inquiry under sub-section (1), the following provisions have effect: (a) the Tribunal, or that other person, as the case may be, is not required to comply with that requirement or those requirements, as the case may be, in relation to the holding of the inquiry; an (b) the Tribunal may in lieu of that requirement or those requirements, as the case may be, adopt any other procedure or procedures that it considers appropriate. (8) Subject to this Division and to the regulations, the conduct of an inquiry under sub-section (2) or (3) is within the discretion of the Tribunal." The reference in s.17C(1) to the Tribunal's substantive powers is a reference to the powers referred to in 8.17A(2). They include the power to vary, revoke or impose conditions on licences. 12. No regulations have been made dealing with the matters referred to in s.17C(6). Inquiries are to be held in public (s.19(1)) but where the Tribunal is satisfied that, by reason of the confidential nature of any evidence or matter or for any other reason, it is desirable that it should give directions that proceedings at an inquiry shall be held in private or that the publication of evidence given before the Tribunal should be prohibited or restricted it is required to give such directions as it thinks necessary (s.19(2)). The Tribunal may take evidence on oath or affirmation (s8.21(1)) and may summon a person to appear before it to give evidence and produce documents (s.21(2)). A person appearing before the Tribunal to give evidence may be required to take an oath or make an affirmation (s.21(3)), and it is an offence for a person served with a summons to appear as a witness to fail, without reasonable excuse, to attend as required by the summons (s.21AA). In proceedings before the Tribunal at an ordinary inquiry under s.17C a party to the proceedings may be represented by a barrister, solicitor or agent (s.22(1)). The Tribunal is required, without regard to legal forms and solemnities, to make a thorough investigation into all matters relevant to an inquiry. It is not bound by legal rules of evidence and may inform itself on any matter in such manner as it thinks fit and, subject to s.19, is required to ensure that every party to proceedings at an ordinary inquiry is given a reasonable opportunity to present his case (s.25). 13. The Tribunal is authorized to require a licensee to supply to it, within a specified period, such information in his possession or control as is specified, being information relating to a function of the Tribunal, and the licensee 1s obliged to comply with the requirement (s.124(2)). The Australian Broadcasting Tribunal (Inquiries) Regulations apply to an inquiry under s.17C(1) of the Act. An application under the Act requesting the Tribunal to exercise any of its substantive powers must indicate the power of the Tribunal in respect of which the application is made and outline the grounds on which the exercise by the Tribunal of the power is sought (reg. 4(1)(b) and (c)). Where the Tribunal commences an inquiry, whether in consequence of the lodgement of an application or otherwise, it is required to publish a notice of the commencement of the inquiry (reg. 9(1)). The notice is required to "specify the issues to be considered in the inquiry" (reg. 9(3)(b)). A submission made by a person in relation to an inquiry shall "indicate the nature of any decision, recommendation or direction that the person requests be made or given by the Tribunal in the inquiry" (reg. 10(1)(b)). Where the Tribunal is satisfied that the issues to be considered in an inquiry, as stated in the notice published under reg. 9(1) should be changed, the Tribunal is required to determine new issues to be considered in the inquiry, and where those issues are substantially different from the issues stated in the notice already published, the Tribunal is required to publish a further notice setting out the new issues (reg. 12). 14. The contentions of the parties The applicants challenge the validity of the inquiry upon which the Tribunal has embarked. They contend the Tribunal has misconceived the nature of an inquiry under s.17C(1). It was submitted that the Tribunal is purporting to hold the inquiry pursuant only to s.17C(1). The obligation and the power to hold an inquiry under that sub-section arises, so it was argued, in only two situations: first, where the Tribunal receives an application requesting it to exercise any of its substantive powers; and secondly, where the Tribunal proposes to exercise any of its substantive powers otherwise than on such an application. The second head of power, so it was submitted, is available to the Tribunal only if it has formed an intention, albeit not final, to exercise one of its substantive powers. It was said that the evidence demonstrates that no such intention has been formed by the Tribunal. Thus, so it was argued, although the Tribunal is purporting to conduct the inquiry under s.17C(1), that provision does not authorize the holding of it. The applicants made the further submission that there is no other provision in the Act which authorizes the present inquiry. In particular, it was submitted that the power to hold an inquiry under s.17C(3) does not extend to authorize the present inquiry. The matters referred to in paras. (a), (b) and (c) of s.17C(3) were said to be matters of general policy and the like and do not include particular matters of the kind 15. referred to in the issues described in the Gazette notific- ation. Alternatively, it was submitted that even 1f s.17C(3) would have been a sufficient source of power for the holding of the inquiry if it had been resorted to, it had not, in fact, been resorted to by the Tribunal. Senior counsel for the Tribunal submitted that the inquiry was authorized by s.17C(1). He contended that the Tribunal is authorized by s.17C(1) to hold an inquiry whenever it raises for consideration the question whether it should exercise one or more of its substantive powers. According to this argument, the expression "proposes to exercise" in the sub-section does not mean "intends to exercise". It was said that if the latter meaning is adopted, great difficulty would be experienced by the Tribunal in discharging some of its important responsibilities under the Act. One such responsibility is the task of deciding whether the conduct of licensees is such that consideration should be given to the revocation or suspension of their licences. According to senior counsel for the Tribunal, it perceives the task upon which it has embarked as one of informing itself initially on a number of matters of fact, the determination of which might raise for consideration the appropriateness of the exercise of its substantive powers. He said that the Tribunal is of the view that a stage may be reached in its investigation of the factual matters when it may form a tentative view that its substantive powers should be exercised adversely to the interests of the applicants. At 16. that stage, the obligations of natural justice might dictate the provision of particulars of the kind sought in the correspondence. It was further submitted on behalf of the Tribunal that s8.17C(1) does not envisage that the Tribunal must forma preliminary view on any factual matter before it proposes to exercise its substantive powers. It was said that the first limb of s.17C(1) contemplates that when an application is made to the Tribunal requesting the exercise of its substantive powers, it will not form any preliminary view on the matters referred to in the application before an inquiry is held. It would be surprising, so it was argued, if it was obliged to form such a preliminary view before the commencement of an inquiry which it initiates of its own motion. It was all but conceded on behalf of the Tribunal that the inquiry was being held pursuant to what the Tribunal conceived its powers to be under s.17C(1). However, it was submitted that if the Tribunal was not authorized by s.17C(1) to hold the inquiry, it was so authorized by s.17C(3). Is the current inquiry authorized? The first question which must be addressed is whether the inquiry currently being undertaken by the Tribunal is authorized by s.17C(1) of the Act. Central to that question 17. is the meaning of "proposes" in the collocation of words "Where the Tribunal ... proposes to exercise any of its substantive powers ...". Dictionary definitions of the word do not of themselves provide a sure answer to this question. To propose something may be to put it forward for consideration or discussion or to proffer it for mental acceptance or assent: Oxford English Dictionary. But according to the same dictionary, when used transitively, it means "to put forward as a scheme or plan to be adopted: to lay before another or others as something which one offers to do, or wishes to be done". Further meanings of the word when thus used are "to put before one's own mind as something that one is going to do; to design, purpose, intend ... Now usually with some notion of having formed a decision or intention." The meaning of "proposes" will depend, of course, upon the context in which it is used. Moreover, its meaning will often be determined by whether it is immediately followed by "to" or "that", In the former case, the word commonly bears a meaning almost indistinguishable from "intend", but, it is less likely to have that meaning in the latter case. There are indications in the context in which s.17¢C(1) is set which lead me to the conclusion that the Tribunal must have formed at least a tentative intention to exercise one of its substantive powers before it can be said that it "proposes to exercise" such a power. Section 17C(1) envisages two situations which may trigger the obligation (and hence the power) to hold an inquiry. First, the Tribunal may receive an 18. application requesting it to exercise one of its substantive powers. In such a case the applicant must surely have the intention that the Tribunal will exercise the power in accordance with his request. Regulation 4(1) requires an applicant to indicate the power in respect of which his applic- ation is made and to outline the grounds on which the exercise of the power is sought. Even if there was no such requirement in the regulations, an application under s.17C(1) could hardly be made without identifying a particular course of action which the Tribunal is requested to adopt. The second situation which triggers the obligation and power to hold an inquiry arises when the Tribunal "proposes to" exercise any of its substantive powers. The sub-section does not refer to the Tribunal's proposal that its power be exercised. I think this tends to indicate that the draftsman had in mind that the obligation to hold an inquiry would not arise unless and until the Tribunal intended to exercise one of its substantive powers. Thus construed, the second part of s.17C(1) sits easily with the first part. It is significant overlooked that, unlike ss.17C(2) and (3), s.17C({1) is mandatory in its terms. It is easy to understand why this is so if the Tribunal has formed the intention (albeit provisional) that it should exercise any of its substantive powers. It is less easy to understand if all that the Tribunal has in mind is to give consideration to the question whether it should exercise such a power. In many cases when a substantive power is exercised the consequences 19. may be serious for a licensee and others. Both the licensee and the general public are likely to have a real interest in the exercise of the power. Hence, a requirement that the Tribunal hold an inquiry when its thinking has reached the stage that it has formed an intention to exercise such a power seems appropriate. But on the construction of s.17C(1) for which the Tribunal contends once it gives preliminary consideration to the question whether it should exercise one of its substantive powers it has no option but to hold an inquiry even if it then has no intention of exercising such a power. The statutory obligation to hold an inquiry would arise as soon as the Tribunal raised for discussion a proposal that it should exercise one of its substantive powers. It seems to me that such a construction would create more difficulty for the Tribunal in the exercise its powers than the construction for which the applicants contend. The argument that there would be great difficulty in the administration of the Act if the applicants' construction of s.17C(1) is adopted does not, to my mind, have as much substance as it was said to have by the Tribunal's counsel. He submitted that in a case such as the present, where the fitness of a licensee to retain his licence is under consideration, the Tribunal would be hamstrung if the applicants' construction of the Act is adopted. But there are means available to the Tribunal, short of a full-scale inquiry of the kind contemplated by s.17C(1) and _ the regulations, of obtaining information which would enable it to form a provisional intention to exercise one of its substantive 20. powers. The Commission has power to do all such things as it thinks fit for the purpose of exercising its powers and functions under the Act (s.17(1)). That power, and the power in 5.124(2) to require a licensee to supply it with information relating to its functions (which include the revocation of licences (8.16(1)), would extend to authorize it to make such inquiries as it might think necessary before reaching a preliminary view that it should exercise one of its powers. There are many places in the Act, especially in Part IIIB which deals with the grant, renewal and revocation of licences, where "proposes" and "proposed" appear: see ss.81A(2), 82(1)(a)(i) amd (ii), 82A(4)(a)(ii), 89A(1A), 89D(8), 903(3), and 92F(3). In every instance the words refer to a definite and specific course of conduct which is proposed to be undertaken. The meaning which the words have in other sections of the Act is not, of course, determinative of the present question but it does afford some confirmation that "proposes" in s.17C(1) is used in the sense contended for by the applicants. Senior counsel for the Tribunal submitted that there is something unusual in the notion that the Tribunal must first form an intention to exercise one of its substantive powers before it holds an inquiry into the proposed exercise of the power. However, what s.17C(1) calls for is no more than the formation by the Tribunal of an intention to exercise its substantive powers. It does not contemplate that the Tribunal will reach a concluded view on any matter, and thereafter hold 21. an inquiry. The exercise which the Tribunal is called upon to perform is not unlike that commonly undertaken by regulatory bodies which issue "show cause" notices before they hold inquiries into the matters that have led to the issue of the notices. I do not find persuasive the Tribunal's argument that, as the first limb of s.17C(1) does not envisage that the Tribunal will form a preliminary view on the matters referred to in an application, it would be surprising 1f it was obliged to form such a view when it initiates an inquiry under the second limb. The maker of an application must obviously form a preliminary, if not firm, view of the matters referred to in his application before he submits it. To construe the second limb as requiring the Tribunal to form a preliminary view before it proposes to exercise its powers seems to me to give coherence to the sub-section as a whole. That is to say, the statutory obligation to hold an inquiry does not arise until, at the least, a preliminary view is formed that circumstances exist justifying the holding of an inquiry. The adoption of the fTribunal's construction of s.17C(1) leads to the result in the present case that two inquiries may have to be held. On its construction, there must be an inquiry (i.e. the present inquiry) at the conclusion of which the relevant facts will be found. Thereafter the Tribunal, having considered those facts, will have to determine whether it proposes to exercise any of its substantive powers. If it does so propose, there must be a second inquiry into the 22. proposed exercise of the power. It 1s clear from the Australian Government Solicitor's letter of 25 May that this is the manner in which the Tribunal proposes to proceed. But there is nothing in s.17C(1) which justifies, or indeed requires, the holding of two inquiries. What is made obligatory is the holding of "an inquiry into the requested or proposed exercise of the power". It might appear at first blush that the construction I place upon s8s.17C(1) is over-technical. But I do not think it is. It is of the essence of the Tribunal's construction that an inquiry under s.17C(1) may be in the nature of a wide ranging fact-finding exercise without there being any firm proposal by the Tribunal to exercise any of its substantive powers. It seems to me that such a construction could hardly have been intended by the Parliament. The exercise of most of the Tribunal's substantive powers is calculated to have serious implications for licensees. It is not an unreasonable or over-technical construction of s.17C(1) to read it as only requiring an inquiry to be held when there is some proposal to exercise a substantive power. This construction does not give a licensee undue immunity from scrutiny of his conduct. Such scrutiny can take place provided the Tribunal has sufficient material justifying it proposing to exercise one of 1ts powers. In any event, a licensee's conduct is reviewable in the inquiry which the Tribunal is obliged to hold whenever the licensee applies for his licence to be renewed. 23. For these reasons I am of the view that the Tribunal has no power to conduct an inquiry under s.17C(1) unless it has first formed an intention to exercise one of its substantive powers, albeit that the intention may be abandoned after the holding of the inquiry. It is apparent from the correspond-— ence to which I have referred and from the remarks made by the Chairman of the Tribunal on 27 May that the Tribunal has not formed any intention of the requisite kind. I am therefore of the opinion that the current inquiry does not find any statutory warrant in s.17C(1) of the Act. I turn now to consider the question whether the current inquiry is authorized by s.17C(3). The short answer to this question is that even if s.17C(3) is an available source of power to hold an inquiry of the kind upon which the Tribunal has embarked, the Tribunal has not invoked that power in the present case. Before an inquiry can be held under s.17C€(3) the Tribunal must first, in the exercise of its discretion, decide to hold it. It was not suggested that the Tribunal has exercised such a discretion in the present case. Senior counsel for the Tribunal all but conceded that it had proceeded only in purported pursuance of s.17C(1). It is unnecessary to decide whether, in any event, the type of matters which may be the subject of inquiry under s.17C(3) are different from, and do not include, the matters which are the subject of the current inquiry. 24, Conclusion I therefore conclude that the current inguiry is authorized neither by s.17C(1) nor by s.17C(3). It was not suggested that there was any other source of power for the holding of the inquiry. Appropriate orders should therefore be made giving effect to these reasons. I will hear counsel on the form of those orders. In so far as the applicants require an extension of time for the purpose of challenging the decision to hold the inquiry, an extension of time is granted. It is unfortunate that the inquiry should have been allowed to proceed so far without the determination of the question whether it was authorized by the Act. But the applicants' acquiescence in the holding of the inquiry cannot validate it. It may well be that the expenditure of time and money on the inquiry will not have been wasted. The information already gathered by the Tribunal may enable it to decide whether it proposes to exercise any of its substantive powers. If it has no such proposal, then there will be no need for a further inquiry. If it does, it would require little ingenuity to conduct a new inquiry without losing the benefit of the evidence already taken. 25. I certify that this and the twenty-four (24) preceding pages are a true copy of the Reasons for Judgment of his Honour Mr Justice Morling. ale Associate: , u/s Date: tne 1988 Counsel for applicant: A.B. Shand Q.C., with D. Catterns instructed by: Blake Dawson Waldron Counsel for respondent: R. Burbidge Q.C., with P. Roberts instructed by: Australian Government Solicitor Date of Hearing: 2 and 3 June 1988 Date of Judgment: 9 June 1988