Commercial Radio Coffs Harbour Ltd v Fuller [1986] HCA 42

High Court of Australia Gibbs C.J. Wilson, Brennan, Deane and Dawson JJ. Commercial Radio Coffs Harbour Ltd v Fuller [1986] HCA 42

ORDER Answer the question in the cause removed under s. 40(1) of the Judiciary Act as follows: Whether there is an inconsistency between the Broadcasting and Television Act 1942 Cth, as amended, and such of the provisions of the Environmental Planning and Assessment Act 1979 NSW, as amended, the Height of Buildings Act 1912 NSW, as amended, and the Land and Environment Court Act 1979 NSW, as amended, as are relevant to the proceedings. Answer: No. Order that so much of the cause as was removed into this Court be remitted to the Land and Environment Court of New South Wales. Order that the applicant pay the cost of proceedings in this Court.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 1 Gibbs C.J. and Brennan J.

Except for the opinion which we hereafter express as to the construction and operation of s. 132(1) of the Broadcasting and Television Act 1942 Cth, we agree with the reasons for judgment of the majority.

Among the many and diverse provisions to which s. 132(1) applies is s. 89C:

The holder of a licence shall commence the service in pursuance of the licence on such date as is determined by the Tribunal. Unless s. 132(1) is to be read down, the holder of a licence is bound under penalty to comply with every condition of the licence and to commence the licensed service on the date determined by the Tribunal. On behalf of the applicant it is argued that, if the planning laws of New South Wales make it unlawful for the holder of a licence to do what has to be done in order to comply with the conditions of the licence and to commence the licensed service on the specified date, then simultaneous obedience to both the Commonwealth Act and the State planning laws is impossible and there is inconsistency between them.