JUDGMENT No. 2827 BR um CATCHWORDS BROADCASTING - decision of area served by licensee - competing applicants - relevance of public interest. ADMINISTRATIVE LAW - criteria for exercise of discretion - implicit that public interest be considered - abuse of power constituted by inconsistent application of guideline. Administrative Decisions (Judicial Review) Act 1977, 3.5(2)(#) Broadcasting Act 1942, ss.80(1), 85(4) Sunshine Coast Broadcasters Limited v. The Honourable Peter Duncan, Minister for Land Transport and Infrastructure Support & Anor Qld G4 of 1988 PINCUS J. BRISBANE 8 JULY 1988 IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G4 of 1988 GENERAL DIVISION ) BETWEEN: SUNSHINE COAST BROADCASTERS LIMITED Applicant AND: THE HONOURABLE PETER DUNCAN, MINISTER FOR LAND TRANSPORT AND INFRASTRUCTURE SUPPORT First Respondent AND: THE AUSTRALIAN BROADCASTING TRIBUNAL Second Respondent MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS Jd. DATE OF ORDER: 8 JULY 1988 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. paragraph 1 of the application be amended by replacing "Section 985(5) of the Broadcasting Act 1942" by "Section 85(4) of the Broadcasting Act 1942"; the decision of the first respondent made on 15 December 1987, the subject of this application, be set aside; the matter to which the decision relates be referred back to the first respondent for further consideration; the first respondent pay the applicant's costs of and incidental to the application to be taxed. Settlement and entry of orders 1s dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G4 of 1988 GENERAL DIVISION ) BETWEEN: SUNSHINE COAST BROADCASTERS LIMITED Applicant AND: THE HONOURABLE PETER DUNCAN, MINISTER FOR LAND TRANSPORT AND INFRASTRUCTURE SUPPORT First Respondent AND: THE AUSTRALIAN BROADCASTING TRIBUNAL Second Respondent PINCUS J. 8 JULY 1988 REASONS FOR JUDGMENT This is an application under the Administrative Decisions (Judicial Review) Act 1977 to review a decision of the first respondent relating to radio broadcasting. Putting the matter broadly, what the first respondent did was to direct the second respondent to ainclude in the applicant's radio broadcasting licence a definition of a_ service area setting boundaries excluding the Caboolture shire; 1t 1s that exclusion which is the subject of the applicant's complaint. Caboolture is a town to the north of Brisbane and 1s the centre of a shire of a largely rural character, but from which many people commute to work in Brisbane. The applicant's radio station 1s at Nambour, further north again. There were nine stations mentioned in the material which desired to have the shire included in their service areas - eight Brisbane stations and the applicant's provincial station. All of them succeeded in having the shire included except the applicant. It does not complain of the other eight's having succeeded, (a decision made on 4 November 1987) but only of its own exclusion. However, since that was done on the basis that the applicant should not be allowed to have "this area which is served by the metropolitan stations", as the first respondent put it, the case necessarily involves consideration of the position of ali the stations. The way in which the matter was placed before the first respondent, who is, of course, the responsible Minister, concentrated attention upon the strength of the various claims to the area in question. It was decided in effect that there was no room in the shire for the applicant's service, and that the shire should be allocated exclusively to the Brisbane stations. Before coming to the legal considerations which arise, it should be pointed out that the result 1s, from the point of view of the public in the shire, an odd one. On the basis that the primary links of most of the residents (as commuters and consumers) were to Brisbane rather than to the north, they are to be served by eight Brisbane stations only. The information before the Minister and his advisers demonstrated that many people in the shire desired to have the services of the applicant's station, which, of course, was prepared to pay attention to local concerns; their interests appear to have been ignored. Legislative Provisions In the brief account of the nature of the dispute which appears above, I have, for simplicity, written of the first respondent's decision as involving a dispute as to which station or stations should have or serve the area in question; that is the way in which the Departmental documents treated the matter. It is a question, however, whether to discuss the decision attacked in those terms 1s legally accurate. It is unclear what legal effect should be attributed to the decision. All except one of the licences referred to in these proceedings were granted before 1 January 1986. On that date there came into force those provisions of the Broadcasting and Television Amendment Act 1985 (No. 66 of 1985) which are relevant to this case. The 1985 Act changed the title of the principal Act from "Broadcasting and Television Act 1942" to "Broadcasting Act 1942" (s.3). It also introduced what was described by the responsible Minister as a "service-based concept for planning and licensing", the cornerstone of which was said to be the service area for a licence. The applicant argued that the first respondent had not applied this concept in making his decision. The idea of service-based licences is reflected in some of the amendments introduced by the 1985 Act, in particular by s.83(5)(b)(1). The applicant for the grant of such a licence as is here in question must, by that provision, undertake to "provide an adequate and comprehensive service pursuant to the licence". The expression used, "adequate and comprehensive service", is in effect defined by s.4(6), which I do not think it necessary to set out. If the provisions just alluded to were directly relevant, some legal questions of importance would fall to be decided: for example, although no provision expressly says so, it may be implicit in one or other of them that the obligation to provide an adequate and comprehensive service in respect of a licence having a defined service area necessarily carries with it the right to be allowed to use equipment which will fulfil that obligation. In the section appearing below, headed "The Reasons", there 1s included discussion of a submission made on behalf of the first respondent as to the effect which should be given to part of the first respondent's stated reasons for the decision attacked. I there accept the first respondent's contention that reference to the necessity for a "translator" (being an additional installation of broadcasting equipment) should not be treated as being a ground of rejection of the applicant's claim. The importance of that conclusion is that it makes it unnecessary to meet an argument, based by the applicant on the first respondent's reference in the reasons to a translator, that the first respondent had misconceived the nature of his task, in failing to apply the new service-based concept. In consequence, a full analysis of or setting out of the new (1985) provisions is unnecessary. It should be added that the 1985 Act contained transitional provisions which continued the application of the "previous Act", generally speaking, to "old system licences that are in force ... on the commencement date ..." That date was 1 January 1986. The "previous Act" is defined in s.96(1) to mean the "Principal Act as in force immediately before the commencement date". Section 99 empowered the Minister to direct the Australian Broadcasting Tribunal to grant a new system licence in substitution for a corresponding old system licence, whereupon the licence would become subject to the amended Act: see the definition of "new system licence" in s.96(1). As appears from what is written below, prior to the 1985 amendment the Act used the expression "area served" and provided for definition of that area, without saying precisely what the rights or obligations relating to the area served were to be. The 1985 amendment used and attached importance to the expression "service areas". What is 1n issue here is the former concept, not the latter. However, 1t seems to have been contemplated by the first respondent that the process of definition of "area served" would lead to a corresponding definition of "service area", after conversion of old system licences to new. That appears from the facts that, for example, the letter giving reasons for the decision uses the expression "service area determinations" and that it rejects the applicant's claim on the basis of guidelines promulgated for determination of service areas. The licence held by the applicant was issued on 5 August 1983 and related to "a commercial broadcasting station situate at 8 km east of Nambour, Queensland to serve the Nambour area ..." The boundaries of that area were undefined. The decision to which exception is taken was made on 15 December 1987. By it, the first respondent directed the Australian Broadcasting Tribunal - iy ».. to revoke the existing conditions relating to matters referred to in the definition of 'specification' in section 80(1) of the Act ... and substitute the conditions set out in the Schedule, in respect of the licence granted to Sunshine Coast Broadcasters Ltd for commercial broadcasting station 4SS at Nambour, Queensland." The Schedule included a paragraph (b) reading as follows: "the area served in pursuance of the licence, in terms of areas defined by the Australian Bureau of Statistics at the Census of 30 June 1981, shall be the Local Government Areas of Landsborough and Maroochy and Collection District numbers ... within the Local Government Area of Noosa within the state of Queensland." It is unnecessary to set out the numbers mentioned in the schedule. The definition of the areas served excluded the whole of the shire of Caboolture. There 1s no provision which attaches a precise legal significance to the definition of the area served or service area. The statute might have, for example, given the licensee of a defined area served or service area a right, absolute or qualified, to use such equipment as would enable people in the area to listen to the licensee's radio service; it has not done so. Section 85(4) of the old Act read as follows: "Subject to sub-section (5), the Minister may, during the currency of a licence, by notice in writing, direct the Tribunal, as specified in the notice, to vary or revoke a condition of the licence, or impose a further condition, relating to a matter referred to in the definition of 'specification' in sub-section 80(1), and the Tribunal shall comply with the direction." The word "specification" was defined in s.80(1), as far as relevant, as follows: "'specification', in relation to a licence, means a specification of any of the following matters - (b) the area served 1n pursuance of the licence; It was under the old s.85(4) and under the part of the definition which I have just quoted that the first respondent acted. I have been somewhat troubled by the lack of defined significance, ina strict legal sense, of the decision complained of. The first respondent did not urge me to dismiss the application on that ground. The first respondent and his advisers, as the documents laid before him show, treated the decision as a matter of moment, presumably on the basis that it was likely adversely to affect the position of the applicant, as against that of the Brisbane stations, in the future. The Minister introducing the 1985 amending bill described the "service area" as being "the area containing communities which the licensee is authorised to serve". He added: "Prom the licensing viewpoint, whether the broadcasting service is delivered by means of one transmitter, or a combination of transmitters, will be largely irrelevant. Emphasis will be placed upon the nature and purpose of the licenced service and the nature and interests of the communities in the service area." The decisions relating to the nine stations referred to above were made looking forward to the application of these new notions. It appears that those entitled to a particular service area may perhaps be regarded as having, at least as a_ practical matter, corresponding technological entitlements - more specifically, as entitled to the authorised use of such equipment as 1s necessary properly to serve the area. I do not decide the case on the basis that it is certain that any particular administrative result will ensue from _ the decision attacked. The inference which should be drawn 1s that the exclusion from the applicant's service area of territory included in the service area of other licensees 1s likely to diminish the applicant's prospects of having its broadcasts satisfactorily received by citizens of the area in question, as compared with the others' prospects. One must assume that any attempt by the applicant to improve the quality of reception of its broadcasts in the area in dispute by use of additional broadcasting equipment would be resisted, on the ground of the decision which ait attacks in these proceedings. On the other hand, if one of the Brisbane stations having only a weak signal in the shire wished to improve that signal, presumably it would have more chance of being allowed to do so. The Reasons The decision to which I have referred was explained by the first respondent in a letter dated 18 December 1987 and reading as follows. "Thank you for your letter of 9 November 1987. Further to my letter of 4 November 1987, about the Service Area determinations for the Brisbane metropolitan radio stations, I am now writing to advise that I have determined the Service Area for the licence held by your company for commercial Broadcasting station 4SS Nambour. I regret to advise that I have not included the Caboolture Shire within the area to be served by 4SS. The Service Area is, in fact, identical to that shown in the draft Service Area sent on 9 July 1987. I see from your letter of 20 August 1987, that you are familiar with the Guidelines for Negotiating and Defining Service Areas. I did not feel that I could disregard the Guidelines in this case as it would be unfair to other licensees whose determined Service Areas were not in accordance with their claims. You will also know that the Guidelines state 'Service Areas will not be determined to extend 10. significantly beyond the areas currently provided with an adequate service, except where the community or communities included are not already receiving a service and are not within the Service Area of another station'. As I wrote in my previous letter, most of the metropolitan stations were entitled, as stated on their licences, to serve much of the Caboolture Shire, even before my determination of their Service Areas. I believe that it would not be appropriate to extend the area served by 4SS into this area which 1s served by the metropolitan stations. There is, I think, general agreement that the issue at stake was an extension of the area served by 45S. Your company said, in its submission dated May 1987, that residents now listen to Brisbane commercial radio. Additionally, I note that the signal strength of most metropolitan stations is stronger than that of 4SS in much of the Shire (in particular, the town of Caboolture). Unlike most of the metropolitan stations, 45S would need to establish a translator to adequately serve the town and surrounding region. While not denying that links do exist between Caboolture and the Nambour/Sunshine Coast region, there are also strong links between the Shire and Brisbane. You have noted that part of the shire and the town of Caboolture itself are included within the Brisbane Statistical Division. On the other hand, the Shire of Caboolture is completely excluded from the Sunshine Coast Statistical District. I do not make these points simply to criticise your submissions, which are weli presented and researched. Rather, I wish to make clear the reasons for my decision to exclude Caboolture from the area to be served by 4SS. Thank you again for bringing your concerns to my attention." Both counsel argued, in effect, that the letter did not stand alone, but should be read in the light of certain other documents placed before the first respondent. For the purposes of the decision, some reference 1s made to such documents below, but it seems clear that, principally at least, the decision stands or falls on the reasons set out in the letter. ll. Counsel for the first respondent analysed the letter as consisting of an adjudication, a notation in respect of a translator, and finally an acknowledgment; as to the second element, counsel said the paragraph commencing "Additionally" noted the existence of a technological fact. The point of his describing the paragraph about a translator as a "notation" was that he was inclined not to accept the submission by the applicant's counsel that the alleged necessity to establish a translator was a reason for decision. The applicant argued that the material in that paragraph proved that an irrelevant consideration had been taken into account and that the area should have been determined on the basis of the matters mentioned 1n the Ministerial statement quoted above. It 1s true that the letter does not say that the applicant should be refused the area it desired because cf the alleged need to establish a translator, nor does 1t say that the establishment of a translator would cause any difficulty. Nevertheless, one tends to assume, at first reading, that the reference to a translator was intended to imply an added disadvantage of the applicant's proposed service area; why the translator was thought to be disadvantageous does not appear. Nor does it seem that any consideration was given to the means whereby the metropolitan stations with weak signals in the shire would serve the whole area. There was a suggestion in the documents that a Ministerial statement argued against the use of translators in 12. this situation, but no statement of a relevant kind was identified. Not without doubt, I have concluded that I should accept the analysis of the letter put forward on behaif of the first respondent. That is, I accept that the reference to a translator was merely a "notation" and I will not treat it as implying a view on the part of the first respondent that the necessity for a translator justified refusal of the application. The applicant's criticism of the "notation" becomes irrelevant. On that basis, it 1s necessary to consider only the legal validity of the reasons set out in the balance of the letter - specifically, those in the third and fourth paragraphs. It should be added, for the sake of completeness, that the present weakness of the applicant's signal in the Caboolture shire 1s due to a "null" an ae southerly direction, under a condition of its licence, imposed in the interests of preventing interference with the signal of a Victorian station. Public Interest This point is raised in grounds (1)(a)(11) and (1)(c)(21) of the application. The statute gives no express indication of the criteria by which the Minister should make his decision as to the area served. The case is therefore one in which the dictum of Deane J. 13. aun Sean Investments Pty Ltd v. MacKellar (1981) 38 A.L.R. 363 at p.375 is applicable. "In a case 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 1f 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." That was approved in Minister for Aboriginal Affairs v. Peko-Walisend Limited (1985-86) 162 C.L.R. 24 at p.39 per Mason J. His Honour also pointed out (pp.39-40) that if the relevant factors which a decision maker 1s bound to consider - "Je. are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act." As to the necessity of considering the public interest in exercising daiscretions, I refer to Bromley London Borough Council v. Greater London Council £19833 1 A.C. 768, at p.853E. One of the easier implications to make 1s that which was made in Kevin R. Whelpton & Associates (Aust.) Pty Ltd v. Attorney-General (Cth) (1987) 72 A.L.R. 679 at 688: "Furthermore, the section being included in an Act, a major purpose of which is to protect the public interest, it would appear that the Attorney-General is required to consider whether 1t would be 14. reasonable or unreasonable to grant the application from the point of view of the public interest." The same reasoning applies here: it goes without saying that a purpose of the broadcasting legislation is not merely to attend to and reconcile the competing interests of broadcasters, but also, and perhaps primarily, to have regard to the interests of the general public. That section of the public whose interests were in question here was the population of the Caboolture shire, and it seems evident enough that one of the interests to be considered was the interest of those citizens, as the actual and potential audience of the applicant's radio station. The considerations bearing upon that point were simple enough. The shire residents already had, by the first respondent's recent decision, whatever advantage was to be gained by the inclusion of the shire in the service areas of all the metropolitan stations. The question was whether they should also have whatever additional advantage might be derived from their inclusion in the service area of the applicant's station. That they had a real interest to be protected and considered in the respect just mentioned was, on the material before the first respondent, clear. It disclosed that very few business people in Caboolture used Brisbane radio stations for advertising. Presumably businesses in outlying areas could rarely afford the costs of dissemination of their message to the residents of a city, most of whom could have no possible interest in business at Caboolture. The documents before him also 15. disclosed that many business people, as well as community and sporting organisations, wished to have the services of a non-metropolitan station to publicise their activities. More generally, the information before the first respondent disclosed that there was a considerable amount of local support from community leaders and others for the applicant's case; as an example, the present Premier of Queensland, who represents the Landsborough electorate, indicated his support and explained in detail the reasons for it. Further, 1t appeared that the majority of governmental organisations surveyed did not service the shire from Brisbane, but from extra-metropolitan centres such as Nambour. It has to be said that the strength of the material just mentioned did not appear as clearly as 1t might have done from the discussion of it placed before the first respondent by his advisers, but even if the first respondent had no such material, the likelihood that many people in such a shire would be likely to receive and support an audible service from a provincial station concerned with local interests must have been obvious. In contrast, 1t must have been equally obvious that metropolitan stations would be unlikely to broadcast material paying particular attention to the every-day affairs of and events in the Caboolture shire, a matter of no interest to the vast bulk of their audience. The first respondent's letter to the applicant was, with respect, drawn as if the problem was to determine the strength of 16. the competing claims to the shire. There is not a word about the advantages which might accrue to the public in the shire from its inclusion within the service area of the applicant, nor, indeed, any disadvantage to them flowing from that course. If one looks beyond the Minister's letter, and into the material underlying it, the impression created by the letter is not weakened. For example, in a minute of 20 October 1987 sent to the first respondent by a departmental official, the writer remarked that "... the Department believes that the metropolitan licensees have stronger claims to serve the Caboolture area than does 45S ..." It was that minute, signed by the first respondent, which recommended inclusion of the shire in the service areas of all the metropolitan stations. In a minute sent to the first respondent relating to the decision presently before me, 1t was remarked: "In developing this and every other recommended Service Area, the Department has tried to maintain rather than redress the commercial balance between stations." Again, the point was not one of trying to maintain or improve the interests of the members of the public affected by the decision. It 1s impossible to believe that Parliament intended this power to be used in such a fashion. The spirit in which this exercise was approached was foreshadowed at a meeting about service areas held on 21 March 1986 between Departmental officers 17. and representatives of Brisbane commercial stations, at which a process described as "negotiation" went on. After discussion of, inter alia, the area here in issue, someone raised the question, "What if there is a stalemate?" and a Departmental officer said, in effect, that the Minister could then make a decision or refer the matter to the Australian Broadcasting Tribunal, the latter course being unlikely. It is my opinion that in giving power to define areas to be served, Parliament must have intended more than that an attempt would be made to reconcile, by negotiation or asa last resort by decision, the conflicting claims of those deriving income from the services. It was necessarily implicit in the grant of power that the interests of the public affected by sucha decision would be a major, and perhaps the primary, consideration. Those interests were mentioned at that meeting, but in the end overlooked. There was no stalemate; the Brisbane stations agreed they should all have the Caboolture shire. Abuse of Power It was put by Mr Douglas for the applicant that the decision attacked constituted an abuse of power, within the meaning of s.5(2)(j) of the Judicial Review Act, in that there was unfairness in a certain sense. The unfairness complained of was, in essence, that the first respondent had applied against the applicant a guideline which was equally applicable to competing applicants against whom 18. it was not applied, no reason for this discrimination appearing or being given. Before expounding that point further, it is necessary to refer to the authorities which were relied on. Mr Douglas referred to H.T.V. Ltd v. Price Commission £19761 I.C.R. 170, an English case concerning broadcasting, where a complaint of inconsistent conduct was upheld. There the Plaintiff's complaint compared, not the treatment of one citizen as compared with that of another, but current treatment with former treatment. Lord Denning M.R., speaking of the Exchequer levy which was in issue, said at p.185: "I see no warrant whatever for treating 1t differently after July 1974 from before. Yet that 1s what the Price Commission seek to do. Can they be permitted to do it? I do not think so. It is, in my opinion, the duty of the Price Commission to act with fairness and consistency in their dealings with manufacturers and traders. wae 1t is a misuse of power for it to act unfairly or unjustly towards a private citizen when there is no overriding public interest to warrant it." Scarman L.J. (as he then was) referred at pp.189 and 192 to the duty of administrative agencies to act fairly and the Court's power to redress unfairness. The idea that an unfair exercise of power may be an abuse recurred in Req. v. Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd. £1982] A.C. 617 at p.637 (per Lord Diplock) and p.651 (per Lord 19. Scarman). It was also accepted in Reg. v. Inland Revenue Commissioners; Ex parte Preston [£19853 A.C. 835 at pp.864-867, where the H.T.V. case was referred to with approval and explained by Lord Templeman as an instance in which the unfairness was due "... to an error of law whereby the Price Commission misconstrued the code they were intending to enforce". Further, in the Bromley case (above) at pp.815, 829 and 853, reference is made to the necessity, in exercising administrative discretions, of fairly balancing conflicting interests. There 15 a question whether these authorities should be followed, in dealing with allegations of abuse of power under the Judicial Review Act. This Court 1s, of course, not bound by the decisions of the House of Lords but they must have persuasive authority, in the absence of any contrary binding decision. Here, 1t 1S unnecessary to consider the whole scope of abuse of power by unfair or inconsistent action. The question 18S a narrower one: if the first respondent, having competing applications before him in respect of the same area, applied a guideline against one and not against another, without any stated or rational justification for that discrimination, 1s that an abuse of power? In applying the guideline here, the first respondent commenced from the proposition that: 20. " ... most of the metropolitan stations were entitled, as stated on their licences, to serve much of the Caboolture shire, even before my determination of their Service Areas." Strictly speaking, there is an inaccuracy in that statement, since none of the Brisbane licences stated any entitlement. For example, the licence for 4222, issued in 1984, was granted "... for a public broadcasting station situate at Mt Coot-tha, Brisbane to serve the City of Brisbane and adjacent urban areas area ECsicl] and to be known by the call sign 4222". It did not, nor does the statute, define what rights the definition of the area to be served gives. The area just quoted did not extend into the Caboolture shire, nor did the statement of the area to be served in the licence for 4MMM, a much more important station. The 4MMM licence defined the area to be served as "the City of Brisbane, Queensland and adjacent urban portions of the Local Government Areas of Redland, Albert, Beaudesert, Moreton, Ipswich, Pine Rivers and Redcliffe". The first respondent's letter, quoted above, having referred to the statements of the areas to be served, on the licences of the metropolitan stations, went on: "T believe that it would not be appropriate to extend the area served by 4SS into this area which is served by the metropolitan stations." 21. That was, in the context, a reference back to the requirements of the guideline set out at the beginning of the paragraph and particularly to the exception in it: ~.. except where the community or communities included are not already receiving a service and are not within the Service Area of another station." The nub of the reasoning seems to be that the applicant's service area could not, under the guidelines, be extended, because the shire was "already ... within the Service Area of another station". Leaving aside the objection that that was not so, because the majority of the shire was not within the service area of any station, the point of unfairness is that exactly the same objection was available against the two stations whose service areas I have quoted, and most importantly against 4MMM, a very popular Brisbane station. It was just as true of 4MMM as of the applicant's station that to extend its service area into the Caboolture shire would give it an area much of which was already within the service areas of five metropolitan stations. The principal reason given for the decision was erroneous, 1n that it involved rejecting the applicant for a reason equally applicable to other applicants whose claims had just been allowed, and who formed, indeed, part of a group whose entitlements were thought to be destructive of the applicant's claim. 22. It should be added that the applicant's complaint of unfairness may be thought to gain strength from a related point in the minute, referred to above, which the first respondent's counsel described as underlying the Ministerial letter of 18 December. I shall repeat the relevant passage. The first respondent was urged to reject the applicant's case for the reasons that, inter alia: "In developing this and every other recommended Service Area, the Department has tried to maintain rather than redress the commercial balance between stations." Tf one follows the first respondent's approach and considers the Brisbane stations as a group, it appears that they have been allowed to transmit such signals as effectively to compete with the applicant in the heart of its home territory - but not vice versa. The material available showed that 4I0 (which was itself once an extra-metropolitan station) had been allowed to transmit from St Helena, an island in Moreton Bay, a signal which was still reasonably strong along the coast running north past Nambour. Another Brisbane station, 4KQ, transmits a signal of strength of 10mV/m (millivolts per metre) inthe vicinity of Caloundra, an important coastal centre close to Nambour, the applicant''s 10mV/m line being also close to Caloundra. It seems scarcely fair to make a decision based on preserving to the Brisbane stations the area they were "established to serve" (as was said in the minute of 20 October 1987), when the applicant was already competing with Brisbane stations transmitting strongly to the area it was established to serve. Uniform Application of Guidelines The third paragraph of the first respondent's letter quoted above expresses an unwillingness to disregard the guideline in favour of the applicant "as it would be unfair to other licensees whose determined Service Areas were not in accordance with their claims". Not a great deal was said about this point at the hearing, for not much can usefully be said. The mere circumstance that other unidentified licensees had not been given their full claims would obviously not, of itself, create any unfairness in giving the applicant its claims. While this ground of decision appears to have some little importance, its apparent irrationality does not necessarily, in my view, justify setting aside the decision. It is not every mistake in expressed reasoning which 1s sufficient to do so. In view of the conclusions reached on other aspects) of the matter, however, it 18S unnecessary to decide the question whether the mistake just mentioned would, in itself, have entitled the applicant to relief. Summary and Conclusion It was suggested at the hearing that the application requires amendment by replacing "Section 85(5) of the Broadcasting Act 1942" by "Section 85(4) of the Broadcasting Act 1942" in par.1 and that will be ordered. 24. Numerous other objections to the legality of the decision attacked are contained in the application but not dealt with here. My principal conclusions are: 1. The first respondent failed to take into account a relevant consideration, namely the interests of the public affected by the decision, including any disadvantage to them from not being served by a station professing to emphasise local interests, as opposed to metropolitan interests. 2. The decision was vitiated by inconsistency of application of the guideline thought to be relevant: it was true of a number of the competing applicants that their licences did not, and others did, include part of the shire - but that ground was used to defeat this applicant only, and not others similarly placed. Counsel for the first applicant asked for a final decision in the matter in his favour, but did so faintly, having in mind the decision of the Full Court in Minister for Immigration and Ethnic Affairs v. Conyngham (1986) 68 A.L.R. 441. The way in which the matter was approached was 1n my opinion wrong and the disregard of the public interest evinced throughout much of the collection of material before me is both serious and disturbing. It is repetitive to say so, but needs emphasis, that the statute does not contemplate, in making decisions about access to broadcasting audiences, consideration of the interests of the broadcasters only. 25. Nevertheless, it appears clear on the authority of Conyngham's case, that nothing can properly be done with the matter other than to set the decision aside and remit it to the first respondent for further consideration. That will be ordered and the first respondent must pay the costs. i certify that this and the Q4 preceding paces are a true copy of he reasons for judgresnt herein of His Honour Mr. Justic2 Pincus Angelo. Getus Associate Dated & July 199¢ Counsel for the applicant: Mr F.M. Douglas Solicitors for the applicant: Blake Dawson Waldron Counsel for the first respondent: Mr J.A. Logan Solicitors for the first respondent: Australian Government Solicitor Dates of Hearing: 22, 23 June 1988