ADMINISTRATIVEREVIEW COUNCIL

REPORT TO THEATTORNEY-GENERAL

REVIEW OF DECISIONS UNDER THE

BROADCASTING & TELEVISIONACT 1942

Report No. 16

Australian Government Publishing ServiceCanberra 1982

Commonwealth of Australia 1982

ISBN 0 644 02037 7

Printed by Canberra Publishing and Printing Co.

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ADMINISTRATIVE REVIEW COUNCIL

11 June 1982

My dear Attorney,

I have the honour to send you a report by the Administrative Review Council on Review of Decisions under the Broadcasting and Television Act 1942.

Yours sincerely,

E.J.L. TuckerChairman

Senator the Hon. P.D. Durack, Q.C.Attorney-GeneralParliament HouseCanberra, A.C.T. 2600

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CONTENTSPARAGRAPH PAGE

LIST OF RECOMMENDATIONS 6INTRODUCTION 7The Council's Study 4 7Format of Report 8 8

PART 1: EXISTING MEANS OF REVIEW 9 9Judicial Review 13 9Review of Matters of Administration: the Ombudsman 18 11Review on the Merits: the Administrative Appeals Tribunal 23 12

PART 2: REVIEW OF SUBSTANTIVE DECISIONS OF THE AUSTRALIAN BROADCASTING TRIBUNAL 30 14REVIEW ON THE MERIT'S 32 14Arguments Against Review 36 15Arguments in Favour of Review 56 19The Council's Conclusions 59 20REVIEWABILITY OF DECISIONS OF THE AUSTRALIANBROADCASTING TRIBUNAL 63 21Decisions Not Presently Subject to Review 65 22LIMITS TO RIGHTS OF APPEAL ON THE MERITS 68 23APPEALS ON QUESTIONS OF LAW 75 25

PART 3: REVIEW OF PROCEDURES OF THE AUSTRALIANBROADCASTING TRIBUNAL 79 25The Traditional Role of the Courts 81 26Questions Involving a Discretion 82 26The Holding of an Inquiry 86 27

PART 4: REVIEW OF DECISIONS OF THE MINISTER 97 30THE GREEN REPORT 99 31PROPOSALS FOR REVIEW ON THE MERITS 100 31Reviewable Decisions-Final Determination 104 32Reviewable Decisions-Recommendatory 116 33Non-reviewable Decisions 131 37Section 18(2) 133 38Section 28A 134 38Section 29 135 38Sections 36 and 79L 136 38Sections 77 and 99(3) 137 38Sections 64 and 10 139 39Section 82 141 39Section 82A 143 39Sections 111C(1)(a), (b) and (d) 144 40Section 113(1) 146 40Section 117A(7) 147 40

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PART 5: THE ADMINISTRATIVE APPEALS TRIBUNAL 148 40THE APPROPRIATE TRIBUNAL 149 41A Specialist Tribunal? 150 41CONSTITUTION OF THE ADMINISTRATIVE APPEALSTRIBUNAL 152 41STANDING REQUIREMENTS 155 42Statutory Modifications 157 42

THE ROLE OF THE AUSTRALIAN BROADCASTINGTRIBUNAL ON REVIEW 168 44

APPENDIX I 46Persons and Organisations which made SubmissionsAPPENDIX II 46Persons met by Council Committee

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LIST OF RECOMMENDATIONSRECOMMENDATION 1The Broadcasting and Television Act 1942 should be amended to provide that all substantive decisions of the Australian Broadcasting Tribunal (other than decisions under section 29) shall be subject to review by the Administrative Appeals Tribunal with the leave of the President of the latter Tribunal.

RECOMMENDATION 2The Broadcasting and Television Act 1942 should be amended to provide that a decision by the Australian Broadcasting Tribunal whether or not to hold a public inquiry, or to reach a final decision without holding a public hearing, shall be subject to review by the Administrative Appeals Tribunal with the leave of the President of the latter Tribunal. An application for leave should be made within fourteen days of the advertisement that a public hearing is not to be held.

RECOMMENDATION 3The Broadcasting and Television Act 1942 should be amended to provide that decisions as to compensation under s.117A(7) and decisions under sections 93, 110 and 111C(1)(c) should be reviewable on their merits by the Administrative Appeals Tribunal.

RECOMMENDATION 4Subject to Recommendation 5, the Broadcasting and Television Act 1942 should be amended to confer jurisdiction on the Administrative Appeals Tribunal to review decisions of the Minister taken under sections 84(1), 85(4), 86(12), 94, 95 and 96.

RECOMMENDATION 5In respect of those decisions identified in Recommendation 4, the Administrative Appeals Tribunal should not possess all those powers set out in section 43 of the Administrative Appeals Tribunal Act 1975 but should be restricted to either affirming the decision under review or remitting it for further consideration in the light of any recommendations the Tribunal may make.

RECOMMENDATION 6Where the Administrative Appeals Tribunal makes a recommendation to the Minister and that recommendation is not accepted in its entirety, the Minister should be obliged to report to Parliament the reasons for his decision. The Broadcasting and Television Act 1942 should be amended to impose such an obligation upon the Minister and should provide that the statement should be made within fourteen sitting days of such a decision being reached.

RECOMMENDATION 7Section 119A(3) of the Broadcasting and Television Act 1942 should be repealed.

RECOMMENDATION 8Section 119A(2) of the Broadcasting and Television Act 1942 should be repealed.

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INTRODUCTION1. This Report is the second part of a Report by the Council to the Attorney-General on the Broadcasting and Television Act 1942 (Cwlth.). The terms of reference of the Council's study are: the procedures of the Australian Broadcasting Tribunal; the standing of persons seeking to be heard before the Australian

Broadcasting Tribunal; the decisions of the Australian Broadcasting Tribunal and the Minister under

the Broadcasting and Television Act 1942 which should be subject to review; and

the appropriate mode of review and the standing of persons to seek such review.

A Report on the first two of these matters was forwarded to the Attorney-General on 25 February 1981 (AGPS 1981). That Report was tabled in the House of Representatives on 9 April 1981. At that time the then Minister for Communications (the Rt Hon. I. Sinclair) announced that the Government endorsed the general principles contained in the Report but stated that it would not make any decisions as to the specific recommendations until the public and the broadcasting industry had had the opportunity to comment. At the time of writing this Report, no decision had been announced as to Council's earlier recommendations.

2. Paragraph 5 of Council's earlier Report expressly reserved for future consideration questions relating to review of decisions of the Australian Broadcasting Tribunal and the Minister for Communications under the Broadcasting and Television Act 1942. As stated in that paragraph, this course was taken both to enable the Council to respond quickly to an invitation from the Attorney-General on 12 February 1980 to comment on the procedures to be followed by the Tribunal at public inquiries, and also to enable the Council first to receive the Government's response to its recommendations on procedures for primary decision making.

3. This present Report deals with questions of rights of review and the appropriate tribunal to review decisions of the Minister and the Australian Broadcasting Tribunal. Excluded from consideration is the desirability or appropriateness of reviewing decisions made under the Broadcasting and Television Act 1942 by the Governor-General, the Australian Broadcasting Commission, the Special Broadcasting Service, and the Auditor-General.

The Council's Study4. To assist the Council in the second stage of its examination of the Broadcasting and Television Act 1942, and to help it to formulate its conclusions as to review on the merits of decisions made under that Act, a Discussion Paper was prepared by the Council's Secretariat and distributed to over 100 persons and organisations. Written submissions were received from those persons and organisations listed in Appendix 1 of this Report. A number of other persons and organisations acknowledged receipt of the Discussion paper but did not wish to make any substantive observations on it. The submissions which had been made to Council in relation to its earlier Report also proved to be of assistance.

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5. The Discussion paper contained tentative views as to the desirability of review by the Administrative Appeals Tribunal of decisions of the Minister, substantive decisions of the Australian Broadcasting Tribunal and procedural decisions of that Tribunal. That Paper stated that the views expressed were not necessarily those of the Council or its members. After submissions were received the Council was placed in a position of having available to it a wide variety of opinion and experience.

6. As well as considering all the written submissions, the Committee also had the assistance of short meetings with those persons listed in Appendix 2.

7. All members of the Committee appointed to supervise this project and the Council's Director of Research have attended various hearings of the Australian Broadcasting Tribunal. These hearings, which concerned both licence renewal applications and applications for approval of share transaction, were attended in Sydney, Melbourne and Adelaide.

Format of Report8. This Report is divided into the following parts:

Part 1: Existing Means of Review

Part 2: Review of Substantive Decisions of the Australian Broadcasting Tribunal

Part 3: Review of Procedural Decisions of the Australian Broadcasting Tribunal

Part 4: Review of Decisions of the Minister

Part 5: The Administrative Appeals Tribunal

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PART 1: EXISTING MEANS OF REVIEW9. Some decisions arising under the Broadcasting and Television Act 1942 are already subject to review by the courts, the Commonwealth Ombudsman, and the Administrative Appeals Tribunal. Applications for judicial review have related both to substantive and procedural decisions of the Australian Broadcasting Tribunal and to decisions of the Minister.

10. This Part of the Report examines the adequacy of the existing means of review. As will be seen: Judicial review of administrative decisions is a valuable means of reviewing

the legality of a decision reached, but is not an adequate means of examining the merits of a decision reached.

The Ombudsman is a valuable check on matters of administration but is not empowered to make a determinative decision on the merits of a case or to investigate Ministerial decisions.

The Administrative Appeals Tribunal is the most appropriate forum in which to conduct a review on the merits of a decision, but its jurisdiction at present is limited in respect of both the decisions which are subject to review and the persons who may seek review.

As will be seen, Council is of the opinion that there is a need to review certain decisions on their merits. Whilst a decision may be legally correct, it may not be the correct or preferable decision on the merits of the case. Whereas a reviewing court may not substitute its own decision on the merits for that of the original decision maker, a body such as the Administrative Appeals Tribunal may do so.

11. The general philosophy underlying the development of means of review on the merits is that the exercise of a discretionary power which may significantly affect the interests of a person should be reviewable on its merits by an authority which has adequate powers to inform itself and make an independent and determinative judgment. In particular cases there may be special circumstances in which such review is not feasible, or is impracticable, unnecessary or inappropriate. Special circumstances may also exist which justify a conclusion that the reviewing authority should not finally dispose of an application but merely make a recommendation back to the primary decision maker. The existence of such special circumstances should be shown clearly to exist before a departure from the general philosophy is warranted.

12. These and other considerations have led Council to conclude that there is a need to recommend a process of review on the merits which is accessible to interested persons and which encompasses those decisions made under the Broadcasting and Television Act 1942 which are capable of and appropriate for review. The proposals in this report are thus intended to be complementary to, and not substitutes for, the existing means of review.

Judicial Review13. Both the High Court of Australia and the State Supreme Courts have been involved in litigation arising under the Broadcasting and Television Act 1942. By way of summary, these decisions concern the following issues:(a) whether the conditions attached to a licence were intra vires Television

Corporation Ltd v. The Commonwealth (1963) 109 CLR 59; Austarama

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Television Pty Ltd v. Australian Broadcasting Control Board (1976) VR 793);

(b) whether the Australian Broadcasting Tribunal had adequately investigated the matters raised for its attention (Re: Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13);

(c) whether the procedures of the Australian Broadcasting Tribunal in relation to the presentation of evidence and cross-examination were a denial of natural justice (Re: Australian Broadcasting Tribunal; Ex parte Hardiman, supra; Barrier Reef Broadcasting Pty Ltd v. Staley (1978) 52 ALJR 493);

(d) whether a State Attorney-General had locus standi to seek an injunction restraining the transmission of a television program allegedly in breach of s.116(2) of the Act (Attorney-General (N.S.W.), Ex rel. Clarke v. Publishing and Broadcasting Ltd [1977] 2 NSWLR 813);

(e) whether allocation of a radio frequency by the Minister was based upon relevant considerations and not based upon irrelevant considerations (Broadcasting Station 2SM Pty Ltd v. The Commonwealth of Australia, Unreported,22 November 1978);

(f) whether the Australian Broadcasting Tribunal had correctly exercised its discretion in considering the transfer of a licence (In the Matter of an Application for a Writ of Mandamus against the A.B T.; Ex parte 2HD Pty Ltd (1979) 54 ALJR 94).

14. In some of these decisions the applicant was successful. Thus, for example, in the Television Corporation case conditions imposed by the Minister on licensees were struck down as ultra vires; similarly, in Ex parte Hardiman the procedures adopted by the Australian Broadcasting Tribunal were successfully impugned. By way of contrast, in other decisions the applicant was unsuccessful. Thus, for example, in the Austarama Television case the validity of conditions prohibiting the telecasting of advertisements for cigarettes and cigarette tobacco except during specified hours was upheld; and in the Radio Station 2SM case the Supreme Court of New refused to interfere with the allocation of a frequency by the Minister.

15. It is thus the situation that an applicant may invoke the jurisdiction of the courts to challenge some decisions made under the Broadcasting and Television Act 1942. However, judicial intervention is restricted by the following factors: judicial review is restricted to a review of whether a decision is legally

correct and not whether or not a reviewing authority would have reached the same decision on the facts;

judicial review cannot result in a court substituting its own decision on the merits for that of the impugned decision of either the Minister or the Australian Broadcasting Tribunal;

judicial review can involve considerable costs, together with the possibility that costs may be awarded against an unsuccessful applicant for review;

considerable periods of time may elapse before a judicial decision is obtained;

an application for judicial review can only be made by a person who has sufficient locus standi in the eyes of the court.

16. The question of costs involved in an application for judicial review was specifically referred to in a number of the submissions received by Council. Thus, a submission from the South Australian Council for Children's Films and Television stated that judicial review is a remedy which is unavailable to bodies

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like itself due to the high costs involved. By way of contrast, the Department of Communications maintained that 'it is doubtful that the cost of mounting an appeal to the Federal Court is in any real sense greater that the cost of an application to the AAT on a significant matter'.

17. While the utility of judicial review must be recognised, especially the availability since 1980 of a simplified procedure and remedy under the Administrative Decisions (Judicial Review) Act 1977, it is clear that judicial review is not an adequate substitute for review on the merits such as is available already in respect of certain decisions through the Administrative Appeals Tribunal (see para. 63).

Review of Matters of Administration: the Ombudsman18. Section 5(1) of the Ombudsman Act 1976 specifies that the Ombudsman shall investigate action that relates to a matter of administration and may do so either once a complaint has been received or on his own initiative. Reliance by legislatures throughout the world on the institution of the Ombudsman or a Parliamentary Commissioner is well documented and the Australian legislation of 1976 provides a valuable and meaningful process by which a citizen may challenge action taken by the bureaucracy.

19. Some indication of the involvement of the Commonwealth Ombudsman with the subject matter of the present Report is provided by the following table which discloses the number of written complaints finalised during the year and the number of such complaints which were resolved either substantially or partially in favour of the complainant, the number which were resolved in favour of the department or authority, and the number in which he exercised his discretion not to investigate. The table does not reveal the number of complaints which were held to be outside the jurisdiction of the ombudsman and the number which lapsed or were withdrawn.

TABLE 1: WRITTEN COMPLAINTS TO THE OMBUDSMAN

Year ended 30 June1978 1979 1980 1981

Department 14 23 25 15Resolved substantially or partially in complainant's favour 4 10 10 3Resolved in Department's favour 5 8 8 6Discretion exercised 1 4 3 4

Australian Broadcasting Commission 12 9 12 6Resolved substantially or partially in complainant's favour 1 1 - 1Resolved in Commission's favour 4 3 7 2Discretion exercised 3 2 4 1

Australian Broadcasting/Tribunal - 3 4 2Resolved substantially or partially in complainant's favour - - 1 2Resolved in Tribunal's favour - - 2 -

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Discretion exercised - - 1 -

These figures have been compiled from each of the Annual Reports of the Ombudsman. The numbers of complaints received in respect of the Department, the Commission and the Tribunal for 1979-80 are outlined in the Third Annual Report (pages 100,124 and 125 respectively).

20. The Third and Fourth Annual Reports of the Ombudsman also revealed a substantial number of oral complaints finalised; no statistics were included in the first two Annual Reports and the last two Annual Reports of the Ombudsman do not reveal separate statistics in respect of the Department, the Australian Broadcasting Commission, or the Australian Broadcasting Tribunal.

21. The following table thus only reveals the total number of oral complaints finalised in respect of all three institutions (together with the Special Broadcasting Service) and the number of such complaints which were resolved either substantially or partially in favour of the complainant and the number which were resolved in favour of the Department.

22. These statistics reveal that the Commonwealth Ombudsman is a means whereby a significant number of complainants seek the review of action which has been taken. Restrictions do exist, however, on the extent of the assistance available from the Ombudsman in reviewing the merits of issues arising under the Broadcasting and Television Act 1942 and these include: Section 5(2)(a) of the Ombudsman Act 1976 precludes the investigation of

'action taken by a Minister'. The Ombudsman cannot substitute his conclusion for that of the primary

decision maker; the details of his recommendations are not necessarily published and their implementation can involve delay.

Section 6 of the Ombudsman Act 1976 confers on the Ombudsman a discretion in some circumstances not to investigate a complaint.

The merits of a case are not argued before the Ombudsman at public hearings.

TABLE 2: ORAL COMPLAINTS TO THE OMBUDSMAN

1979-80 1980-81Total 54 17Resolved substantially or partiallyin favour of applicant 9 4Resolved in Department's favour 9 4Discretion exercised 17 6

REVIEW ON THE MERITS: THE ADMINISTRATIVE APPEALS TRIBUNAL23. The function entrusted to the Administrative Appeals Tribunal is to decide whether or not a decision which has been reached is the correct or preferable one on the merits. Whereas an application for judicial review may lead to the conclusion that a decision has been reached according to law, the Tribunal can go on and determine whether the decision in fact reached was the correct or preferable decision on the facts before the Tribunal.

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24. Section 119A(1) of the Broadcasting and Television Act 1942 specifies those decisions of the Australian Broadcasting Tribunal and the one decision of the Minister which may be reviewed by the Administrative Appeals Tribunal (para. 63); s.119A(2) specifies those persons who can seek review of such decisions.

25. There have been only a limited number of decisions of the Administrative Appeals Tribunal pursuant to s.119A(1). One decision has affirmed the majority decision of the Australian Broadcasting Tribunal refusing approval pursuant to s.92F of a proposed acquisition of shares in Country Television Services Limited: Re Bisley Investment Corporation Ltd and Lytona Pty Ltd (1981) 3 ALN No. 83. This decision, however, has been set aside by the Federal Court of Australia and remitted to the Tribunal for consideration.

26. The other decisions of the Administrative Appeals Tribunal relate to the refusal by the Australian Broadcasting Tribunal to approve an acquisition by Control Investments Pty Ltd of shares in a company, which would have resulted in Control Investments having a prescribed interest in Channel 10 (ATV) Melbourne. Two of the decisions of the Tribunal relate to the joinder of parties and other preliminary matters: Control Investments Pty Ltd and the Australian Broadcasting Tribunal (No. 1) (1980) 3 ALD 74; Control Investments Pty Ltd and the Australian Broadcasting Tribunal (No. 1) (1981) 3 ALD 88. The decision on the merits of this application was given by Mr Justice Morling on 17 December 1981: Re Control Investments Pty Ltd and the Australian Broadcasting Tribunal (No. 3) (1981) 4 ALD 1. That decision set aside the decision of the Australian Broadcasting Tribunal and approved the acquisition of shares.

27. On one occasion where an application was made to the Administrative Appeals Tribunal the requirements of s.119A(2) were not satisfied: Re Laird and Australian Broadcasting Tribunal, Unreported, 10 May 1979. That sub-section provides that, notwithstanding s.27 of the Administrative Appeals Tribunal Act 1975, applications to seek review of certain decisions specified in s.119A(1) may be made only by or on behalf of either the licensee or a person seeking the approval of the Australian Broadcasting Tribunal to a share transaction (see para. 158). (Section 27 provides that applications to the Administrative Appeals Tribunal can normally be made by persons 'whose interests are affected' by a decision.). Whilst applications to seek review are, thus, limited by s.119A(2), no modification is made to s.30(1)(c) of the Administrative Appeals Tribunal Act 1975 whereby persons may apply to be joined as parties to an application for review (see: Control Investment Pty Ltd and Australian Broadcasting Tribunal (No. 1) (1980) 3 ALD 74).

28. Unlike the jurisdiction vested in the courts, the responsibility of the Administrative Appeals Tribunal is to ensure that the correct or preferable decision has been reached on the merits. Thus, even though a decision may not be legally defective the Tribunal can substitute its decision for that under review if it considers it correct to do so.

29. Although the Administrative Appeals Tribunal has, therefore, a wider function than that of the courts, present restrictions upon the availability of review by the Administrative Appeals Tribunal include the following:

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not all decisions of the Minister of the Australian Broadcasting Tribunal are subject to review;

of those decisions of the Minister and the Australian Broadcasting Tribunal that can be reviewed by the Administrative Appeals Tribunal, s.119A(2) restricts the right to seek review in some situations to the licensee or an applicant seeking approval, or a person acting on his behalf.

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PART 2: REVIEW OF SUBSTANTIVE DECISIONS OF THE AUSTRALIAN BROADCASTING TRIBUNAL

30. This part of the Council's Report discusses the question of whether there should be provision for review on the merits of substantive decisions of the Australian Broadcasting Tribunal. This raises a second question as to whether any such review should be provided by the Administrative Appeals Tribunal or through some other body. The Administrative Appeals Tribunal has an existing jurisdiction conferred upon it by section 119A(1) or the Broadcasting and Television Act 1942 (see para. 63). There is no reason, in the Council's view, to consider the creation of a new tribunal for this particular purpose (see paras 150-151). Reasons for regarding the Administrative Appeals Tribunal as the appropriate body for review on the merits within the area of this report are discussed in Part 4 (paras 126-129) and Part 5 (para.149). The remainder of this Report is based on the Council's conclusion that where review on the merits is desirable the Administrative Appeals Tribunal is the appropriate body to provide that review.

31. The Council has thus considered the existing jurisdiction of the Administrative Appeals Tribunal and whether that jurisdiction should be expanded to encompass other classes of decisions. As will be seen, it has been concluded that: decisions of the Australian Broadcasting Tribunal should be reviewable by

the Administrative Appeals Tribunal.

but that:

leave to appeal should first be obtained from the President of the Administrative Appeals Tribunal.

Those arguments which have been advanced both for and against review on the merits are discussed below, together with the considerations which have been taken into account by the Council in reaching its conclusions.

REVIEW ON MERITS32. The Administrative Appeals Tribunal provides a forum in which a decision which has already been made may be reviewed on the merits.

33. The requirement of an existing primary decision is inherent in the nature of the Tribunal as a forum of review and is reinforced by section 25 of the Administrative Appeals Tribunal Act 1975 which restricts the Tribunal to review of decisions made in the exercise of powers conferred by an enactment.

34. One of the most widely accepted arguments for review on the merits by a body such as the Administrative Appeals Tribunal is based upon the powers and procedures it is able to employ. Thus it provides a publicly visible forum in which the reasons for a decision may be explained and challenged; and its fact finding powers (e.g. to compel the attendance of witnesses and the production of documents, and to take evidence on oath) are superior to those of most primary decision-makers. A question therefore arises in this Report as to the appropriateness of review when the body which has been entrusted with primary decision-making responsibilities also has similar powers and

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procedures. Thus, the Australian Broadcasting Tribunal has power to conduct public inquiries, to take evidence on oath or affirmation, to hear oral submissions and generally has fact finding powers similar to those of the Administrative Appeals Tribunal.

35. There is, however, another argument to be considered, namely whether a person whose interests are adversely affected by a decision should as a matter of justice be entitled to have that decision reconsidered, and by a process which permits attention to be concentrated particularly upon those aspects which are in dispute.

Arguments Against Review36. The principle arguments which have been advanced against the appropriateness of Administrative Appeals Tribunal review of decisions of the Australian Broadcasting Tribunal are: The procedural powers of the two Tribunals are similar. Review by the Administrative Appeals Tribunal entails unnecessary costs and

delays. The Australian Broadcasting Tribunal is an expert body. The possibility of appeals in most cases where the interests involved are

substantial could result in the effective authority for decision making and policy development being transferred from the Australian Broadcasting Tribunal to the Administrative Appeals Tribunal.

37. The facts on which the first of these points is based are evidenced by Division 3 of Part II of the Broadcasting and Television Act 1942 which sets forth the procedural powers of the Australian Broadcasting Tribunal. That Division prescribes that the Australian Broadcasting Tribunal: shall conduct its proceedings in public, except where it is satisfied as to the

confidential nature of the evidence to be presented (s.19); may take evidence on oath or affirmation (s.21); may summon a person to appear before it and give evidence and to produce

such documents as are referred to in the summons (s.21(2)); may arrange with the Crown Solicitor of the Commonwealth for a barrister

or solicitor to assist the Tribunal at an inquiry (s.21A); may allow a person who is interested in proceedings to be presented by a

barrister, solicitor or agent (s.22); may inform itself in such manner as it thinks fit and is not bound by the rules

of evidence (s. 25(2)).

In addition, a member and an associate member of the Tribunal have in the exercise of their functions the same protection and immunity as a justice of the High Court of Australia (s.23).

38. Moreover, if the recommendations of the Administrative Review Council contained in its Report to the Attorney-General on Australian Broadcasting Tribunal Procedures (AGPS, 1981) are accepted, many of the criticisms which have been directed at the Australian Broadcasting Tribunal will be rectified and a hearing process adopted which will allow for fair and meaningful rights of participation by all parties. A number of steps in this direction have already been taken. As a consequence, it is suggested in the argument on this point that it is an unnecessary duplication to invoke similar powers and procedures a second time.

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39. The second argument which has been advanced against the appropriateness of Administrative Appeals Tribunal review is a product of the first and is to the effect that the costs and delays associated with a review of Australian Broadcasting Tribunal decisions are not justified where a public inquiry has been held by the Australian Broadcasting Tribunal and where the procedural powers of the Administrative Appeals Tribunal are substantially similar.

40. A body such as the Administrative Appeals Tribunal, it is argued, is a valuable means of reviewing those decisions which are made without the benefit of a prior oral hearing; without the benefit of being able to compel the production of evidence and an opportunity to obtain comment on the evidence so produced; and without the benefit of legal representation. But these benefits are available at the primary decision-making stage where those decisions are made by the Australian Broadcasting Tribunal after holding public inquiries.

41. Should the Administrative Appeals Tribunal conduct an oral hearing on an application for a review on the merits, it is argued that it could follow that the sometimes lengthy hearings conducted by the Australian Broadcasting Tribunal would be repeated before the Administrative Appeals Tribunal. Indeed, it has been suggested that the subsequent hearings before the Administrative Appeals Tribunal may even consume more time than the original hearing before the Australian Broadcasting Tribunal because of the need to explain technical issues to the former Tribunal. The hearing before Justice Morling, sitting as a Deputy President of the Administrative Appeals Tribunal, into acquisition of shares by Control Investments Pty Ltd is an indication that on some occasions hearings can be lengthy (para. 26).

42. The third argument against the appropriateness of reviewing decisions of the Australian Broadcasting Tribunal on the merits is that that Tribunal is an expert body and the Administrative Appeals Tribunal is not. In support of such an argument, the Department maintains that:

The ABT is charged with the responsibility of regulating the whole licensed broadcasting area. Appointments to the ABT are being made with a view to ensuring a high level of expertise, and continuing familiarity with the issues arising across the whole field. Over a period of years, the intention is that the ABT will develop a detailed and consistent policy approach towards the regulations of the industry ... Review on the merits by a judge (or several judges in different cases), with no continuing broadcasting involvement, will not necessarily produce more equitable decisions, and will undoubtedly lead to greater uncertainty in the industry. We consider that great weight should be given to the need for a consistent policy approach in broadcasting matters in view of the high capital investments and the need to plan years ahead.

While the Broadcasting and Television Act 1942 does not lay down any specific qualifications for membership of the Tribunal, some members have had previous broadcasting or television experience. Members may be expected to accumulate knowledge as a result of their day to day experience and the holding of inquiries and also by virtue of such provisions of the Act as section 106A which provides for the accumulation of information by the Tribunal. Where an appeal lies from an expert body, it is argued that considerable time is expended in explaining issues of detail to the review tribunal and possibly the legal representatives of the parties involved; such issues are well known to the experts and need no explanation. Furthermore, it may be thought that a non-expert review tribunal

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is in no better position than an expert primary decision making body to determine the correct or preferable decision, provided that the latter has available to it, and has used, the same powers and procedures as the former.

43. The final argument against providing for review by the Administrative Appeals Tribunal is that, at least in important cases, the Australian Broadcasting Tribunal would become merely an intermediate level of adjudication which has to be traversed before a final decision on the merits can be obtained. It has been suggested that the fact that the Australian Broadcasting Tribunal would be subordinate to the Administrative Appeals Tribunal would detract from the status of the Australian Broadcasting Tribunal and reduce public confidence in that Tribunal. Applicants who are aware that they could afford to seek review by the Administrative Appeals Tribunal might, it has been suggested, take less trouble with cases before the Australian Broadcasting Tribunal. Moreover, members of the public who are contemplating spending considerable time and money in making written and oral submissions to the Australian Broadcasting Tribunal might be discouraged by the fact that any decision by the Australian Broadcasting Tribunal based on their submissions could be taken to the Administrative Appeals Tribunal by way of review. Even the Australian Broadcasting Tribunal itself, it has been suggested, might be deterred from making difficult decisions adverse to an applicant because of the risk of an application for review being made.

44. If accepted, these arguments would suggest that Administrative Appeals Tribunal review of Australian Broadcasting Tribunal decisions is: both costly and productive of delay in the obtaining of a final decision on the

merits; unnecessary as the Australian Broadcasting Tribunal is the most appropriate

Tribunal to reach final conclusions since it has the procedural powers and expertise among its membership necessary for the tasks to be performed.

Council does, however, consider that reservations may be expressed as to the persuasiveness of each of the above four arguments.

45. First, the mere fact that the procedures of the Australian Broadcasting Tribunal are comparable to those of the Administrative Appeals Tribunal does not detract from the value of reviewing findings of fact and conclusions drawn by a primary decision maker. Although not conclusive, it is noted by Council that the possibility of a formal hearing at the primary decision-making stage and before review by the Administrative Appeals Tribunal was envisaged by the Kerr Committee and not considered a sufficient reason to exclude review (Commonwealth Administrative Review Committee, Parlt Paper No. 144, 1971). That Committee reported at para.304:

Our proposals in respect of review on the merits in appropriate cases are meant to extend to all decisions whether taken without a hearing or after a hearing formal or informal.

The opportunity of review not only provides a discipline upon a primary decision maker to think out its conclusions carefully; it also provides a forum in which those conclusions themselves may be exposed to scrutiny and examination. A public process and strong fact finding powers do not of themselves ensure that the facts are correctly found or, in particular, that the conclusions drawn from the facts are the correct or preferable ones.

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46. It is noted that the opportunity for an oral hearing by the Australian Broadcasting Tribunal in respect of at least one class of decision has not been regarded as precluding review by the Administrative Appeals Tribunal. Thus, when the Broadcasting and Television Act Amendment Bill 1977 was being debated an amendment was accepted to the draft section 119A(1)(d). The Bill proposed that the Administrative Appeals Tribunal should not have jurisdiction to review a decision to renew a licence for less than three years 'where an inquiry was held in relation to the renewal of the licence'. This limitation was deleted as it was considered that a right of appeal should exist whether or not there has been a public inquiry: Parlt Debates 30th Parliament,2nd Sess. at 2839 (HR,3 November 1977).

47. The Council is of the opinion that a right of review should not depend upon whether or not a public inquiry has been conducted by the Australian Broadcasting Tribunal. The significance of an oral hearing by a primary decision maker is not that it excludes the desirability of review, but rather that it potentially makes the primary decision making process more satisfactory. This may reduce the number of cases in which review is sought, but it does not eliminate the need for review, especially where valuable commercial interests and important social issues are at stake.

48. Secondly, considerations of cost are not conclusive of the desirability of review. The decisions in issue are of concern both to the community and to persons immediately affected. Moreover, delays in the actual hearing of a case or the re-hearing of that case on an application for review are to some extent within the control of the parties.

49. Any costs and delays experienced in producing new evidence before the Administrative Appeals Tribunal could largely be avoided by ensuring the maintenance of a thorough primary decision-making process. If additional material is relevant and was not available for consideration by the Australian Broadcasting Tribunal, review is justified; if it is not relevant, reliance may be placed upon the Administrative Appeals Tribunal to quickly so decide. If evidence is available at the time of the hearing before the Australian Broadcasting Tribunal and is not presented to that Tribunal, council has considered whether it would be appropriate to confer upon the Administrative Appeals Tribunal a power to award costs against the party who has withheld relevant evidence without good cause. Such costs could, for example, reflect the extent to which proceedings before the Administrative Appeals Tribunal have been either extended or rendered necessary because of the late presentation of such evidence. It has been decided, however, to defer consideration of this question pending a more thorough examination which Council is presently considering concerning the general power of Federal administrative tribunals to award costs; that matter may be the subject of a separate Council Report. Council has, of course, previously recommended that as a general rule there should be no change to the present position in the Administrative Appeals Tribunal Act 1975 concerning costs, but the Council does not reject the possibility of the introduction of costs provisions in particular jurisdictions: Third Annual Report at para. 97 (1979); Fourth Annual Report at paras 79-8 (1980); Report to the Attorney-General on Commonwealth Employees' Compensation Tribunal at paras 66-73 (1981).

50. Council has also rejected the third of the reasons advanced above against the desirability of review on the merits, i.e. that it is unnecessary because of the

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expertise of the Australian Broadcasting Tribunal. In the opinion of Council, the expertise of a primary decision maker does not preclude the need for review.

51. A number of people and organisations who made submissions to Council argued that expertise was not a sufficient reason in itself to exclude the need for review. By way of example, the Public Broadcasting Association of Australia states:

There is great merit in having decisions by experts reviewed by the non-expert. It happens all the time with Boards of Directors and in the bureaucracy, where a permanent head must often question decisions taken with expertise which he does not personally possess ... Experts are not, by virtue of being expert, objective, nor free from biases acquired largely in the exercise of their expertise. It is these influences on decision-making which may count for as much as the content of a submission and oral evidence from which a non-expert reviewing body is likely to be free.

In the opinion of Council, such views are well founded. It has long been argued that one of the weaknesses of a general administrative appeals tribunal is that an appeal would lie from an expert tribunal to a comparatively inexpert body (e.g. Report of the Committee on Administrative Tribunals and Inquiries at para. 121, Cmnd 218, 1957 (U.K.)). Such an argument does not place sufficient weight upon the need to review or check even the findings of experts or upon the ability to appoint experts to the Administrative Appeals Tribunal. Section 7(2)(d) of the Administrative Appeals Tribunal Act 1975 thus expressly states that a person may be appointed to that Tribunal by virtue of his 'skill in relation to any class of matters'.

52. The final argument against the appropriateness of review is that the opportunity of review would make the Australian Broadcasting Tribunal merely an intermediate level of adjudication and could result in the effective authority for decision making being transferred to the Administrative Appeals Tribunal.

53. It may no doubt be expected that an application for review will be taken to the Administrative Appeals Tribunal in many cases where the Australian Broadcasting Tribunal has decided an issue contrary to a substantial commercial interest. But where such commercial interests are at stake, important social questions are often also involved. In either case a right of review may well be appropriate. Furthermore, the extent to which these rights are availed of may be expected to depend on the extent to which decisions of the Australian Broadcasting Tribunal are perceived as well founded and soundly reasoned, and hence, upon a judgment as to the prospects of success upon review.

54. Council has considered whether the likelihood of such appeals being taken could justify a reference of such cases directly to the Administrative Appeals Tribunal for decision Provision could be made, for example, for the Chairman of the Australian Broadcasting Tribunal to refer cases involving important principles of general application to the Administrative Appeals Tribunal for decision. This proposal, however, has not been accepted by Council as the Administrative Appeals Tribunal is a forum for review and should not be cast into the role of a primary decision maker. Moreover, such a proposal would detract from the role in the regulation of the broadcasting industry which should legitimately be performed by the Australian Broadcasting Tribunal.

55. Council is thus of the opinion that arguments founded on the procedures and expertise of the Australian Broadcasting Tribunal do not lead to the

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conclusion that review by the Administrative Appeals Tribunal is inappropriate. Such factors, however, may well affect the way in which a case is conducted before the Administrative Appeals Tribunal and the weight which that Tribunal will place upon the findings and conclusion involved in the decision under review: Cf. Re Control Investments Pty Ltd, and Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88, at 92-93 per Davies J.

Arguments In Favour Of Review56. The principle arguments which may be advanced in favour of review on the merits of decisions of the Australian Broadcasting Tribunal are: the importance of the social and commercial issues involved; the importance of maintaining confidence in the independence of the

Australian Broadcasting Tribunal.

57. As stated above (at para. 11), underlying the development of systems of administrative review has been a general philosophy that there should be a right of review on the merits of any decision or class of decisions which could adversely affect the interests of a person, unless there is some particular reason why those decisions cannot or should not be reviewed. The larger the interests which could be affected, it may be thought, the stronger the case for independent review. The regulation of broadcasting and television raises issues about which strong opinions are held and in respect of which many people would hold that their own interests and those of the community are affected. Substantial private interests are also affected. In these circumstances there is a strong presumption that a means of independent review should be provided. As indicated below (see paras 59-62) the Council is not persuaded that there exist contrary arguments of a general character sufficiently powerful to displace this presumption. Any such contrary arguments would need to be related to particular decision-making powers.

58. As to the second argument for review which is mentioned above, whilst it is appreciated that the Australian Broadcasting Tribunal is a statutory authority established under the Broadcasting and Television Act 1942 and is not subject to the directions or control of the Minister, it has been suggested that the Tribunal might at times be influenced by both the industry and the wishes of Departmental officials with whom it has constant contact. In a submission to Council, Dr C.V. Latz maintained:

... that there is a common tendency of regulatory bodies to form symbiotic relationships with those they are supposed to be regulating, i.e., the Tribunal comes to understand so well the Tribunal comes to understand so well the difficulties of managing a television station that it tends to become an apologist for the licence instead of remaining a staunch advocate administering regulations for the benefit of the public.

Similarly, the Federation of Australian Radio Broadcasters maintained there was a real need for the industry and the public to be protected from the consequences direct or indirect - of undue political influence. The opportunity of review by the Administrative Appeals Tribunal, so it is argued, provides a valuable check against even the appearance of influence.

The Council's Conclusions59. It will be apparent from the foregoing discussion that in the opinion of the Council the general arguments in favour of a system of review on the merits outweigh those against. This conclusion of the Council is a recognition of the fact that where substantial commercial interests are at stake and where a

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decision has important social ramifications such costs and delays as may be associated with review on the merits are an unavoidable consequence of the need to ensure that the correct or preferable decision is in fact reached. Such procedural reforms as Council has recommended in its earlier Report are of themselves no guarantee that the correct or preferable decision will be reached in all cases, although of course the more satisfactory the primary decision making processes the more likely it will be that such a decision will be reached.

60. In reaching its conclusion the Council has recognised that in many cases applications will be made to review decisions of the Australian Broadcasting Tribunal which are adverse to the commercial interests of licensees, at lease until the authority of that Tribunal and the soundness of its judgments have been firmly established. Where substantial commercial property interests are at stake and where decisions have important social and community consequences, an opportunity for review may well be appropriate. But at the same time, it is necessary to preserve the role of the Australian Broadcasting Tribunal as the administrative tribunal having the predominant say in the regulation of those broadcasting functions entrusted to its jurisdiction. If the right to seek review of all decisions of the Australian Broadcasting Tribunal by the Administrative Appeals Tribunal were unrestricted, there would be a risk that the latter Tribunal could become the ultimate decision maker in major cases and thus find itself exercising those responsibilities which rightly lie with the Australian Broadcasting Tribunal, while the Broadcasting Tribunal would be relegated to the role of dealing only with uncontested applications and the less important contested cases, and its capacity to develop clear and consistent policies would be seriously weakened.

61. Council is also of the opinion that the costs involved in an oral hearing before the Australian Broadcasting Tribunal should not be unnecessarily duplicated. Where a public inquiry has been held, and where the Australian Broadcasting Tribunal has permitted those participating in its proceedings an opportunity to present and controvert evidence, adequate reasons should be shown to exist before the Administrative Appeals Tribunal engages upon a similar proceeding.

62. These considerations have led the Council to conclude that only in appropriate circumstances should a right exist to seek a review of a decision of the Australian Broadcasting Tribunal. This does, of course, raise the question of what constitutes 'appropriate circumstances'. The balance of this Part of the Report, therefore, outlines the Council's views as to: those decisions of the Australian Broadcasting Tribunal which should be

reviewable; those circumstances in which a right of appeal should exist.

REVIEWABILITY OF DECISIONS OF THE AUSTRALIAN BROADCASTING TRIBUNAL

63. The existing jurisdiction of the Administrative Appeals Tribunal to review decisions of the Australian Broadcasting Tribunal is set forth in section 119A(1) of the Broadcasting and Television Act 1942. That sub-section provides:119A.(1) Subject to this section, an application may be made to the Administrative Appeals Tribunal for a review of-

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(a) a variation, revocation or imposition of a condition of a licence by the Tribunal under section 85, other than a variation, revocation or imposition of a condition in accordance with sub-section 85(4);

(b) a refusal by the Tribunal to renew a licence under section 86, other than a refusal in accordance with section 86A;

(ba) a refusal by the Tribunal to grant, under sub-section 86(6A), an extension of the time for the lodgment of an application by virtue of sub-section 86(1) or a reply by virtue of sub-section 86(6);

(c) a variation, revocation or imposition of a condition of a licence by the Tribunal under sub-section 86(12), other than a variation, revocation or imposition of a condition requiring the approval of the Minister;

(d) a decision by the Tribunal for the purposes of sub-section 87(2) specifying a period of renewal of a licence of less than 3 years;

(e) a suspension or revocation of a licence by the Tribunal under section 88;(f) a refusal by the Tribunal to give consent under section 89A;(g) a refusal by the Tribunal to grant approval under section 90JA or 92FAA;(h) a determination by the Minister under section 105AB;(i) a decision by the Tribunal to grant or renew a licence for a broadcasting

translator station for the purpose of the re-transmission of the programs of a metropolitan broadcasting station for reception in an area that is not within a metropolitan broadcasting area;

(j) a decision by the Tribunal to grant or renew a licence for a television translator station for the purpose of the re-transmission of the programs of a metropolitan television station for reception in an area that is not within a metropolitan television area; or

(k) a decision by the Tribunal under sub-section 119(2).

64. It was the jurisdiction conferred by section 119A(1)(g) to review a refusal by the Australian Broadcasting Tribunal to grant approval to a change in the ownership of shares which was involved in both Re: Bisley Investment Corporation Ltd and Lytona Pty Ltd (1981) 3 ALN No. 83, and Control Investments Pty Ltd and the Australian Broadcasting Tribunal (1981) 4 ALD 1.

Decisions Not Presently Subject To Review65. The substantive decisions of the Australian Broadcasting Tribunal which at present are not subject to review by the Administrative Appeals Tribunal are the decisions: to appoint such advisory committees as it thinks fit (s.29); to grant or refuse to grant licences under s.81(1) (except for some country

translator stations); to renew licences under s.86(10) (except for some country translator

stations); to refuse to vary, revoke or impose conditions on a licence or to impose new

conditions under s.85(1) or s.86(12); to determine at the expiration of a supplementary licence whether or not an

additional broadcasting station is commercially viable and in the public interest (s.86A(2));

to refuse to determine a lesser period of renewal than three years under s.87(2);

to refuse to suspend or revoke a licence under s.88(1); to consent to the transfer of a licence or to admit persons to participate in

the exercise of its powers under s.89A(1); to approve transactions whereby persons obtain or increase prescribed

interests in licensee companies under ss.90JA and 92FA;

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to approve or not to approve changes in the corporate structure of licensees under ss.90K and 92FA;

to approve or not to approve the director making a statutory declaration under ss.90M and 92H;

to determine the hours during which programs may be broadcast or televised (s.97);

to make or not to make standards under ss.99 and 100; to make or not to make censorship decisions under s.101; to require the broadcasting and televising of programs of a religious nature

(s.103); to exercise the powers in ss.113(2) and (3), 116(4A), 120, 121(1) and 123(1); to grant a permit upon conditions, or to cancel a permit, for test

transmissions (s.126).

All these decisions may be reached by the Australian Broadcasting Tribunal without the necessity in all circumstances of holding a public inquiry.

66. In the opinion of Council all of the above decisions except the first, which is essentially a matter of internal administration and does not, of itself, affect the interests of any person, should be open to review on the merits by the Administrative Appeals Tribunal. None of these decisions raises issues which are inherently unreviewable or presents difficulties which would make review inappropriate. The rights of review available at present frequently protect the rights of licensees but insufficient weight is placed upon the interests of third parties and the public. Thus, by way of example, pursuant to section 119A(1)(b), the Administrative Appeals Tribunal may review a refusal by the Australian Broadcasting Tribunal to renew a licence, but may not review a decision to renew a licence. Similarly, pursuant to section 119A(1)(g) the Administrative Appeals Tribunal may review a refusal by the Australian Broadcasting Tribunal to grant approval to a change in the ownership of shares, but may not review a decision to grant approval.

67. Whilst the commercial interests of a licensee should undoubtedly be protected by the existence of a right to seek review on the merits, so too should a right to seek review exist to protect the public interest in the regulation of the broadcasting industry. It is thus the opinion of Council that the jurisdiction to be conferred upon the Administrative Appeals Tribunal should not be limited to those decisions which are of immediate interest to a licensee, but should also include what in many circumstances is the reverse of that decision.

LIMITS TO RIGHTS OF APPEAL ON THE MERITS68. Even though Council has concluded that substantive decisions reached by the Australian Broadcasting Tribunal should be subject to review on the merits by the Administrative Appeals Tribunal, it has further concluded that the opportunity for such review should be limited. Its reasons for so concluding have already been recorded (paras 59-62).

69. In the opinion of Council a person who wishes to seek review on the merits should first have to obtain the leave of the President of the Administrative Appeals Tribunal. It is envisaged that leave would be granted only if the President is satisfied that sufficient reason exists for review. In exercising this discretion to grant or refuse leave the President should consider

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the nature of the legislative provision sought to be reviewed and all the circumstances of the case in issue. Whilst Council has concluded that the exercise of all except the first of those legislative provisions it has identified in paragraph 65 of this Report should be subject to review by the Administrative Appeals Tribunal, it is aware that a broad distinction may be drawn between decisions made pursuant to sections 81(1), 86(10), 86A(2), 87(2), 88(1), 89A(1), 90JA, 90K, 90M, 92FA, 113(2) and (3), 116(4A), 120, 121(1), 123(1) and 126, and decisions made pursuant to sections 97, 99, 100, 101 and 103. Many decisions in the latter class will be of a general or quasi-legislative character, having application to all licensees or to all members of a defined sub-group of licensees, whereas those in the former class will usually be decisions relating to specific licensees. However it is not always clear from the statutory provision itself whether the power it confers will be exercised generally or specifically. For example, section 99 provides: 'A licensee shall not broadcast or televise programs except during such hours as the Tribunal determines'. The power conferred by this section may be used to regulate, on a uniform basis, the hours of all licensees or of all members of a class of licensees; or it may be used specifically to regulate the hours of broadcasting or televising by a particular station. The Council envisages that the President would not normally grant leave to review an exercise of power which has general application to all licensees; but that, subject to consideration of other relevant circumstances as discussed in the following paragraph, leave might be granted when the decision relates specifically to an individual licensee. When a decision relates to a sub-group of licensees it would be expected that the President would consider whether its effect on the broadcasting or television station concerned, as compared with its effect on other stations, is such as, in all the circumstances, to justify granting leave.

70. The circumstances of a particular case would also include such matters as whether or not the applicant for review had participated in proceedings before the Australian Broadcasting Tribunal; whether or not all the relevant evidence and materials were presented for the consideration of the Australian Broadcasting Tribunal; and the manner in which the hearing (if any) was conducted before the Australian Broadcasting Tribunal. Should an important principle of general application be involved, or should a substantial injustice appear to have occurred, review by the Administrative Appeals Tribunal may well be appropriate. Cane factor which should undoubtedly be considered is whether a public hearing was in fact conducted by the Australian Broadcasting Tribunal or whether a final decision was reached without such a hearing.

71. A question as to whether injustice has occurred may arise, for example, where it is sought to produce before the Administrative Appeals Tribunal evidence which was not presented to the Australian Broadcasting Tribunal. Such a situation may result from a number of factors. It may be that the Australian Broadcasting Tribunal has wrongfully excluded evidence which it should have considered. Such an error may amount to a denial of natural justice (General Medical Council v. Spackman [1943] AC 627), or a denial of jurisdiction (R. v. Murshum [1892] 1 QB 371), or an error of law (R. v. Industrial Injuries Commissioner, Ex parte Ward [1965] 2 QB 112; cf. Sullivan v. Department of Transport (1981) 1 ALD 383). In such cases it would be possible to claim an order of review under the Administrative Decisions Judicial review Act 1977. Alternatively, evidence may not have been presented to the Australian Broadcasting Tribunal because it was not available at the time of those proceedings. If evidence was available but not presented to the Australian

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Broadcasting Tribunal, it may be that in all the circumstances leave should be refused. Such a result would reinforce the predominant role envisaged for the Australian Broadcasting Tribunal and deter parties from not presenting all available evidence at the earliest opportunity.

72. The predominant role of the Australian Broadcasting Tribunal would also be reinforced by encouraging those persons interested in a decision to be made under the Broadcasting and Television Act 1942 to participate in the proceedings of that Tribunal. In its earlier Report, Council commented in detail on rights of participation in the proceedings of that Tribunal, e.g. paras 77-6, and is confident that the acceptance of its Recommendations in that respect would assist the achievement of meaningful rights of participation. It is likely that only parties to proceedings before the Australian Broadcasting Tribunal would wish to seek review, but Council considers it unwise to restrict this right to such parties. Participation in the earlier proceedings, or the opportunity of participation, would however undoubtedly be relevant when exercising a discretion as to whether or not to allow a request for review by the Administrative Appeals Tribunal.

73. While, as noted above (at para.70) it is clearly a relevant consideration, whether or not a public hearing has been conducted should not, in the opinion of Council, be conclusive of the desirability of review on the merits. In principle there may be little difference between a hearing such as the Australian Broadcasting Tribunal conducts pursuant to a statutory scheme and the hearings conducted by a Minister or a government official pursuant to Regulations, Departmental Manuals, or the application of the common law rules of natural justice. Moreover, some administrative tribunals are specifically given procedural powers by statute and yet seldom exercise those powers (e.g. Repatriation Boards under the Repatriation Act 1920, s.26).

74. Council has considered whether or not the considerations which it has identified should be included in a legislative provision so as to provide guidance to the President when he exercised his discretion to grant or refuse leave. It is envisaged that such a provision could not purport to exhaustively set forth all of these factors to be taken into account, but that it could at least provide a check list of some of the relevant considerations. Such an approach, however, may inadvertently have the effect of circumscribing the discretion intended to be conferred and on balance Council has concluded that it is neither necessary nor appropriate for such a list of factors to be included in the legislation itself. As a matter of practice, no Commonwealth legislative provision to the knowledge of Council purports to set forth in statutory form those factors which should be considered when granting leave to appeal. Section 41 of the Coal Industry Act 1946 does, however, specify that the Coal Industry Tribunal is to have power to grant leave if it is of the opinion that reasons exist whereby 'in the public interest the decision should be reviewed'; section 35 of the Conciliation and Arbitration Act 1904 provides that an appeal does not 'lie to the Full Bench of the Australian Conciliation and Arbitration Commission unless 'in the opinion of the Commission, the matter is of such importance that, in the public interest, an appeal should lie'.

RECOMMENDATION 1The Broadcasting and Television Act 1942 should be amended to provide that all substantive decisions of the Australian Broadcasting Tribunal (other than

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decisions under section 29) shall be subject to review by the Administrative Appeals Tribunal with the leave of the President of the latter Tribunal.

APPEALS ON QUESTIONS OF LAW75. One consequence of the Administrative Appeals Tribunal exercising the jurisdiction recommended by this Report is that, in respect of that jurisdiction, a right of appeal will thenceforth lie to the Federal Court of Australia on a question of law: Administrative Appeals Tribunal Act 1975, section 44. Such proceedings are not appeals in the strict sense in that they lie within the original jurisdiction of the Federal Court (Drake v. Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, at 61-2. It has been stated that when considering such appeals the Federal Court 'should adopt a restrained approach' as Parliament has contemplated that only in exceptional circumstances should the decision of the Tribunal not be the final decision: Blackwood Hodge (Australia) Pty Ltd v. Collector of Customs (1980) 3 ALD 38, at 49.

76. The existence of such a right of appeal has led Council to consider the appropriateness of a similar right of appeal on a question of law lying from a decision of the Australian Broadcasting Tribunal. No such right of appeal exists at present, though the Australian Broadcasting Tribunal either of its own motion or at the request of a person having an interest in proceedings (s.22B).

77. In the opinion of Council, a specific right of appeal on questions of law is unnecessary. Whereas at one point of time it may have been correct to conclude that 'review by the courts of decisions of tribunals should in general be provided by making the decisions subject to appeal on points of law' (Report of the Committee on Administrative Tribunals and Inquiries at para. 107 (Cmmd. 218, 1957)), such is no longer the necessary conclusion in Australia. A party to proceedings before the Australian Broadcasting Tribunal who wishes to challenge a question of law arising in those proceedings has a variety of means of review open to him. Thus a request may be made to the Tribunal to refer a question of law to the Federal Court for decision to an application may be made for an order of review under the Administrative Decisions (Judicial Review)Act 1977. Accessibility to the Federal Court by means of a simplified procedure and an expansion of the grounds upon which relief may be obtained was, of course, one of the objectives sought to be achieved by the 1977 legislation. In addition to these means of review, a party may still have recourse to the prerogative writs (e.g. The Australian Broadcasting Tribunal; Ex parte Hardimun (1980)144 CLR 13).

78. It is thus the conclusion of Council that the Broadcasting and Television Act 1942 need not be amended by supplementing the existing means of reviewing questions of law by further providing for a right of appeal on such questions.

PART 3: REVIEW OF PROCEDURES OF THE AUSTRALIAN BROADCASTING TRIBUNAL

79. This Part of the Report discusses the most appropriate means of ensuring that the Australian Broadcasting Tribunal: acts with procedural fairness;

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complies with whatever procedural requirements may be specified by the legislature.

As will be seen, the conclusion reached by Council is that such procedural issues should normally be reviewed by the Federal Court of Australia on an application for an order of review under the Administrative Decisions Judicial Review Act 1977. The Administrative Appeals Tribunal, however, should review on the merits a decision of the Australian Broadcasting Tribunal whether or not to hold a public inquiry or to reach a final decision without first holding a public inquiry. Before conducting a review of such a decision the leave of the President of the Administrative Appeals Tribunal should first be obtained.

80. In reaching these conclusions the Council was of the opinion that procedural questions arising in the course of a proceeding before an administrative tribunal should normally be reviewed by a court. Traditionally the courts have been the forum in which such questions are raised. Special considerations which are identified below have given rise to the different approach being taken to the review of decisions whether or not to hold a public inquiry (paras 8-96).

The Traditional Role of the Courts81. It has long been accepted that superior courts may review the procedures adopted by administrative tribunals and thus ensure that such tribunals act with a degree of procedural regularity. Whilst it is acknowledged that administrative tribunals are the masters of their own procedure (General Medical Council v. Spackman [1943] AC 627; T.A. Miller Ltd. v. Minister for Housing and Local Government [1968] 1 WLR 992; Douglas v. Provident Clothing and Supply Company Limited (1969) 4 ITR 15; R. v. National Insurance Commission, Ex pane Viscusi [1974] 1 WLR 646), a court may review such aspects of a tribunal's procedures as: the wrongful exclusion or admission of evidence; the denial of or a limitation placed upon the availability of cross-examination; the provision of an explanation for a decision reached; alleged bias or prejudice of the members of the tribunal; the denial of representation.

A court may also consider whether an administrative tribunal has: complied with such procedural requirements as may have been specified by

the legislature (Scum v. Brisbane City Council (1973) 47 ALJR 532).

This list is not intended as an exhaustive list of the issues which may be raised; it is only intended as an indication of the issues which have been raised in the past.

Questions Involving a Discretion82. A number of procedural decisions which may be made by the Australian Broadcasting Tribunal involve the exercise of discretions expressly conferred upon it by the legislation. Thus, by way of example, the Australian Broadcasting Tribunal has a discretion in some circumstances as to whether or not it will hold a public inquiry (s.18). In addition, in the earlier Report of Council to the Attorney-General on Australian Broadcasting Tribunal Procedures, a number of recommendations were made for the conferral on that Tribunal of discretionary powers. Amongst others, Recommendation 6 of that Report recommended that the Tribunal should have a power to extend time for the lodgment of

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submissions where appropriate; Recommendation 8 recommended that the Tribunal should be empowered to refuse to consider scandalous, vexatious, or frivolous submissions or submissions which were an abuse of its proceedings; and Recommendation 14 recommended that the Tribunal be empowered in its discretion to determine that it will proceed to a final decision without a hearing or other proceedings. Other Recommendation involving like discretions are Recommendations 3, 4, 7, 12, 13, 15, 16 and 19.

83. Justice in Broadcasting, in a submission to Council, strongly argued that procedural decisions of the Australian Broadcasting Tribunal should be reviewable on the merits by the Administrative Appeals Tribunal. That organisation said:

... we point out that the parties to Australian Broadcasting Tribunal proceedings are commonly unequally matched in terms of resources with licensees able to engage the most senior counsel instructed by teams of lawyers and backed by extensive research facilities, none of which is available to public interest groups. To place on public interest groups the further burden that relief from adverse rulings of the Australian Broadcasting Tribunal must be obtained by way of judicial review puts these groups at what most see as an overwhelming disadvantage. Our wide contact with public interest groups indicates that this sense of overwhelming disadvantage is deterring most from attempting participation in Australian Broadcasting Tribunal procedures.

'We strongly urge, therefore, that any reform of Review Rights should provide that any person aggrieved by a procedural decision of the Australian Broadcasting Tribunal (e.g. a decision on standing or one in which it is alleged that natural justice has been denied) in relation to its public hearings shall have the right to seek a review of that decision by the Administrative Appeals Tribunal, the review to be limited to the specific issue of the procedural decision in question.

84. The Council has given careful consideration to this argument. It has concluded, however, that it is generally more appropriate for procedural decisions to be reviewed by the courts than for review to be conducted by a body such as the Administrative Appeals Tribunal. Whilst it is recognised that difficulties can arise when parties are unequally matched in terms of resources such difficulties are not confined to issues arising under the Broadcasting and Television Act 1942. In the Council's view it would not be appropriate to seek to resolve these difficulties by transferring to the Administrative Appeals Tribunal jurisdiction on matters which properly lie within the province of the courts. The jurisdiction of the Tribunal should be confined to issues which are best resolved by a determinative decision on the merits. Most procedural issues do not fall within this category.

85. The Council has also indicated elsewhere (paras 68-74) its desire to limit appeals from the Australian Broadcasting Tribunal to the Administrative Appeals Tribunal so as to avoid the risk that the latter body, through being involved in a large number of appeals from the former Tribunal, might come to assume (albeit involuntarily) the predominant role in the regulation of broadcasting and television which ought properly belong to the Australian Broadcasting Tribunal.

The Holding of an Inquiry86. The Broadcasting and Television Act 1942 confers a discretion upon the Australian Broadcasting Tribunal in some circumstances whether or not to hold an inquiry. Section 18(1) and (2) of that Act, for example, provide:

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(1) Before taking action under this Act in relation to any matter, the Tribunal may if it thinks fit, and shall if this Act so provides, hold an inquiry in accordance with this Division into that matter.

(2) The Minister may direct the Tribunal to hold an inquiry in accordance with this Division into;(a) any matter relating to the operation of this Act;(b) any matter relating to broadcasting services or television or both; or(c) any other matter, being a matter with respect to which the Parliament

has power to make laws by virtue of paragraph 51(v) of the Constitution, that, in the opinion of the Minister relates directly or indirectly to a matter referred to in paragraph (a) or (b), and may direct the Tribunal to make recommendations in relation to that matter following the inquiry.

87. In addition to the discretion conferred by s.18, Council has also recommended in its earlier Report on the Procedures of the Australian Broadcasting Tribunal that that Tribunal should have a discretion to determine that it will proceed to a final decision in an inquiry without a hearing or other proceeding (Recommendation 14(a), paras. 60-63). It was noted in that Report that one of the conditions proposed for exercise of that discretion would reflect the discretions conferred by s.83(2) and s.86(8).

88. Of present concern is whether the exercise of a discretion by the Australian Broadcasting Tribunal to reach a final decision without first holding a public inquiry should be reviewable by the Administrative Appeals Tribunal or restricted, as are other discretionary powers of a procedural nature, to review by the courts. The Council has concluded that such a decision should be subject to review on the merits.

89. It is not intended to exclude judicial review. On an application for judicial review a court would apply the well-established principles of natural justice and ultra vires and would examine whether the Australian Broadcasting Tribunal had in fact exercised its discretion and had or had not exceeded or abused the scope of the discretion intended to be conferred by Parliament: Whitmore and Aronson, Review of Administrative Action at 175-244 (1978); de Smith Judicial Review of Administrative Action at 285-356 (4th ed., 1980). A court could, for example, consider whether the Tribunal had failed to exercise a discretion by the giving of some undertaking that it would not hold an inquiry or by the existence of some rule of policy that had been developed; it could also consider whether the Tribunal had exceeded or abused its discretion by seeking to achieve some improper purpose or by failing to take into account some relevant consideration.

90. Nevertheless, Council has concluded that a decision by the Australian Broadcasting Tribunal to reach a final determination without first holding a public hearing should also be subject to review by the Administrative Appeals Tribunal. In reaching this conclusion the Council is conscious of the important role of public hearings in many inquiries and of the opportunity that such hearings afford for public participation. Council in that earlier Report (paras 60-63) identified some of those situations which may justify a decision to dispense with a public inquiry, but remains of the opinion that an inquiry should be held where makers of controversy or public concern are involved.

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91. A reviewing court can only consider whether the Australian Broadcasting Tribunal, in exercising this particular discretion, has acted according to law and should not consider how it would have exercised the discretion upon the facts presented. It has thus been recently stated that, whilst it may be necessary on occasions for a reviewing court to examine quite clearly the facts of a particular case, such an examination would not be conducted with a view to the court reaching its own conclusion, but rather to see whether the facts fall within some specific provision of the relevant legislation: Borkovic v. Minister for Immigration and Ethnic Affairs (1981) 4 ALN No. 14. Furthermore the court would be unable to deal with the matter determinatively except where it decides to affirm the Tribunal's decision. Unlike the Administrative Appeals Tribunal it would not have the power to substitute its own decision for that of the Tribunal but would be restricted to referring the matter back to the Tribunal for further consideration in accordance with any direction it may give. Thus, the Federal Court has stated upon an application for an order of review:

judicial review by this court under the Act does not enable the court to substitute its own discretion for that of the person or body whose action is challenged. The question for the court generally is whether the action is lawful in the sense that it is within the power conferred on the relevant minister, official or statutory body; or that the prescribed procedures have been followed; or that the general rules of law, including adherence to the principles of natural justice, have been observed. The court is empowered to enjoin action or to quash a decision it finds unlawful and to direct action to be taken in accordance with law. It may also compel action by a person or body who has not acted, but who ought to have done so, (Riordan v. Parole Board of the A.C.T. (1981) 3 ALD 144 at 149 per Lockhart; See also: Padfield v. Minister for Agriculture, Fisheries and Food [1968] AC 997).

92. Council is of the opinion that what is desirable is a means of supplementing the availability of judicial review of the exercise of this particular discretion by the Australian Broadcasting Tribunal by a means of a review on the merits. This would enable the relevant facts to be examined and a definitive decision to be made as to whether or not a public inquiry should be conducted. Such a review should be conducted at the earliest opportunity after the Australian Broadcasting Tribunal has indicated its intention to dispense with the requirement of an inquiry. If it is decided that a public inquiry should be conducted it is highly desirable that that inquiry be conducted by that Tribunal and before a decision has been reached on the matter of substance.

93. Judicial review alone is, therefore, in the opinion of Council, not a sufficient means of reviewing a decision by the Australian Broadcasting Tribunal whether or not to hold a public inquiry or to reach a final decision without holding a public hearing. It would, of course, always remain open for an applicant to seek an order of review under s.5 of the Administrative Decisions (Judicial Review) Act 1977 in respect of such a decision by that Tribunal.

94. This conclusion, if implemented would, of course, go some way towards ensuring that public hearings are held in those cases where public participation is desirable, and that such hearings are conducted by the Australian Broadcasting Tribunal. In the opinion of Council it is more appropriate that the Australian Broadcasting Tribunal conduct necessary public hearings at the first instance than it is for the public hearing to be held for the first time before the Administrative Appeals Tribunal upon an application for review.

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95. It is considered that review by the Administrative Appeals Tribunal of this procedural decision would not seriously inhibit the workings of the Australian Broadcasting Tribunal. Those decisions which that Tribunal may make without first holding a public hearing have been noted above (para. 65) and it is understood that a public hearing is held as a matter of practice in all cases where it is thought that differences of view as to the public interest may be involved. Furthermore, to ensure as far as may be possible that review is restricted to appropriate cases, the Council is of the opinion that leave of the President of the Administrative Appeals Tribunal should first be obtained. Like considerations should apply (in so far as they are applicable) to the granting of leave to obtain review of decisions of this kind as have been proposed above in relation to review of the decisions of the Australian Broadcasting Tribunal.

96. It should also be noted that Recommendation 14(c) of Council's earlier Report recommend that an advertisement be published within 14 days should it be decided that a public hearing is not to be held. Appeals against such a decision should also be limited to fourteen days from the date of the advertisement.

RECOMMENDATION 2The Broadcasting and Television Act 1942 should be amended to provide that a decision by the Australian Broadcasting Tribunal whether or not to hold a public inquiry, or to reach a final decision without holding a public hearing, shall be subject to review by the Administrative Appeals Tribunal with the leave of the President of the latter Tribunal. An application for leave should be made within fourteen days of the advertisement that a public hearing is not to be held.

PART 4: REVIEW OF DECISIONS OF THE MINISTER97. Various decision-making powers are entrusted to the Minister by the Broadcasting and Television Act 1942. Review by the Administrative Appeals Tribunal, however, is only possible in respect of determinations made by the Minister under s.105AB. That provision relates to a determination by the Minister as to the area appropriate to be served by the metropolitan broadcasting stations in a State, being an area that includes the capital city of that State.

98. The powers of the Minister which at present are not subject to review on the merits by the Administrative Appeals Tribunal are the powers to: direct the Tribunal to hold general inquiries (s.18(2)); arrange for the provision of facilities and services required by the Australian

Broadcasting Tribunal (s.28A); approve the Australian Broadcasting Tribunal appointing advisory

committees (s.29); grant leave of absence to a Commissioner of the Australian Broadcasting

Commission (s.36) or to a member of the special Broadcasting Service (s.79L);

direct the Australian Broadcasting Commission to broadcast items in the national interest (s. 64);

prohibit the Australian Broadcasting Commission from broadcasting any matter (s.77);

initiate an inquiry into the grant of a new licence (s.82(1); initiate an inquiry into the grant of a supplementary licence (s.82A);

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determine the specifications controlling the nature of service and technical requirements attaching to licences (s.84(1));

approve or direct the alteration of such specifications (s.85(4), 82(12)); approve technical equipment and operators for stations (s.93); determine the situation of stations (s.94); determine the operating power and frequency of stations (ss.95, 96); prohibit licensees from broadcasting any matter (s.99(3)); require licensees to broadcast items in the national interest (s.104); direct licensees to install and maintain beacon lights (s.110); make orders and directions in relation to his duties to plan the development

of services in Australia, to determine technical standards, to investigate and correct interference, and to conduct examinations and issue certificates for technicians (s.111C);

direct the ABC to make programs available to commercial television stations (s.113(1));

direct the keeping of records of matters of historical interest (s.117A).

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THE GREEN REPORT(Australian Broadcasting AGPS September 1976)

99. At paragraph 133 of its Report, the Green Committee in 1976 outlined the following four functions as indicating the Commonwealth Government's role in broadcasting- to establish overall philosophies, objectives and policies for the development

of an Australian broadcasting system comprising commercial, national and public sectors, which will offer a diverse range of entertainment, information and educational programs catering to mass, minority and special interest audiences. The plans which stem from these policies should have the ability to adapt to new forms, of broadcasting, as well as allowing for the integration of broadcasting and other telecommunications services;

to provide a firm base in legislation which will define the manner in which radio and television stations in all three sectors will be licences or established, and clearly enunciate the powers of the Minister and statutory or other bodies or authorities charged with the administration and regulation of each sector;

to protect the frequency spectrum as a national resource by accepting full responsibility for its management and allocation, as well as for representation and participation in international planning; and

to grant funds for the operation and extension of the national broadcasting service as well as for development of assistance in both the commercial and public sectors as may be required.

PROPOSALS FOR REVIEW ON THE MERITS100. As indicated above (para. 11), Council considers that review on the merits should generally be available where the exercise of an administrative discretion may significantly affect the interests of a person. In some circumstances, however, review by an independent and determinative authority may not be feasible, or may be impracticable, unnecessary or inappropriate.

101. Whilst it is not possible to identify in advance all of those circumstances which would justify a departure from the general availability of review, some indication may be provided. Thus, for example, the costs involved in providing for review on the merits may far outweigh the value of interests in issue and review may not provide any other significant benefit to either the administration of the individual. A further example of circumstances which may lead Council to depart from the general philosophy referred to above (at para. 11) is set forth below (paras 117-118).

102. It is these considerations which have been applied by the Council in its examination of the powers conferred on the Minister by the Broadcasting and Television Act 1942. As will be seen, Council has concluded that the exercise of some Ministerial powers under that Act should be reviewable on the merits, but that in identified cases the Administrative Appeals Tribunal should not be empowered to reach a final determination. Discussed below, therefore, are those decisions which it is recommended should be: reviewable and subject to a final determination; reviewable but subject only to a recommendation being made to the Minister; non-reviewable.

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The special circumstances which led Council to reach its conclusions in the last two of these categories are set forth below.

103. When considering the desirability of reviewing Ministerial decisions, Council has been particularly conscious of the fact that it is no part of the function of the Ombudsman to investigate action taken by a Minister and that what is needed is a means of review additional to the valuable roles undertaken by the courts and the Ombudsman.

Reviewable Decisions Final Determination104. Those decisions which Council has concluded should be reviewable on their merits and subject to the Administrative Appeals Tribunal making a final determination are decisions to: approve technical equipment and operators for stations (s.93); require licensees to install and maintain beacon lights (s.11 ); correct interference with the transmission and reception of broadcasting and

television programs (s.111C(1)(c)); assess compensation for the delivery of records of matters of historical

interest (s.117A(7)).

105. These decisions may affect existing rights or interests and should therefore be subject to review unless special circumstances indicate otherwise. The Council is not aware of any such circumstances. Furthermore it understands that these decisions may be made in isolation from others, i.e. that a decision under any of these provisions does not affect the exercise of other powers or of the same power on other occasions. Hence each decision is capable of being reviewed on the basis of evidence relevant to the particular case. This being so the Council considers that review should be determinative rather than recommendatory.

106. Each class of decision identified above requires a brief explanation.

SECTION 93107. Section 93 requires commercial broadcasting stations and commercial television stations to design, install and maintain technical equipment to the satisfaction of the Minister and not to alter such equipment without his consent. The same provision also requires the equipment to be operated in such a manner as the Minister approves and by such persons as in the opinion of the Minister are competent to operate the equipment.

108. Council recognises that the technical equipment used by a licensee and the manner of operation of that equipment may not only affect other licensees if proper standards are not maintained but may also affect the public in the quality of reception. The fact that equipment and its operation may have these consequences is the reason why the power conferred by section 93 should exist, but it is no reason why review on the merits should not be considered desirable. Both a licensee and the public should be able to seek the review of an exercise of power by the Minister pursuant to that section. This may involve such considerations as whether or not particular equipment and its operation do interfere in fact with the transmission of other broadcasts or result in the reception of a program at a particular standard of quality. Assertions of this kind would be capable of proof by expert testimony and would not involve any interference with the overall planning responsibilities of the Minister.

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109. Should this particular recommendation be accepted, it would be necessary for section 93 to be amended to provide specifically for a decision of the Minister and for that decision to be subject to review.

SECTION 110110. Imposing upon a licensee a requirement to install and maintain beacon lights would seldom give rise to disputes as such a requirement would in most cases be necessary in the interests of air safety. Council understands that the Department has on a number of occasions written to licensees requiring beacon lights to be fitted. It is considered that an opportunity for review is desirable.

SECTION 111C(1)(C)111. This provision empowers the Minister to investigate and correct interference with the transmission and reception of broadcasting and television programs.

112. Section 111C(1)(c) may affect both licensees and private individuals as it empowers the Minister to correct interference caused by both the transmission and reception of programs. It is understood that equipment, and even such domestic appliances as a television receiver, may cause interference. By reason of the fact that correction of alleged interference may in some circumstances cause disruption of transmission or an interference with property rights, review would seem appropriate. If this recommendation is accepted, the section should be redrafted to provide specifically for a decision to be made by the Minister.

SECTION 117A(7)113. Section 117A applies to both the Australian Broadcasting Commission and licensees and provides that where a matter broadcast or televised relates to a political subject or current affairs a record is to be made. That record is to be kept for six weeks, or for a longer period as the Minister directs (s.117A(2)), and may be the subject of a notice requiring its production in court proceedings (s.117A(3)-(6)). Where the Minister is of the opinion that the matter is of sufficient historic interest to justify its being permanently preserved, he may direct that the record be delivered for safe keeping to such person or authority as the Minister directs (s.117A(7)). The person to whom a direction is given under section 117A(7) is entitled to fair compensation.

114. In the opinion of Council, the provision which requires the granting of a right of review on the merits is the assessment of compensation in respect of records delivered up for safe keeping in the national interest.

115. To the knowledge of the Council, the powers conferred upon the Minister by section 117A (a provision inserted in 1960) have never been exercised. If the Council's recommendation on this matter is accepted, sub-section 117A(7) should be redrafted to provide specifically for a decision of the Minister as to compensation.

RECOMMENDATION 3The Broadcasting and Television Act 1942 should be amended to provide that decisions as to compensation under s.117A(7) and decisions under sections 93, 110 and 111C(1)(c), should be reviewable on their merits by the Administrative Appeals Tribunal.

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Reviewable Decisions Recommendatory116. Those Ministerial decisions which Council has concluded should be reviewable on their merits but subject only to the Administrative Appeals Tribunal making a recommendation to the Minister are the powers to: determine the specifications controlling the nature of service and technical

requirements attaching to licences (s.84(1)); approve or direct the alteration of such specifications (ss.85(4)), 86(12)); determine the situation of stations (s.94); determine the operating power and frequency of stations (ss.95, 96);

117. These powers all involve technical and planning matters in which one particular decision often cannot be considered in isolation from others. The fact that such powers may affect both the rights of licensees and the interests of the public is a substantial reason dictating the desirability of review, in fact, however, that the exercise of such powers involves considerations beyond the immediate merits of a given decision is a reason against conferring upon the reviewing authority a power to finally determine an application. thus, by way of example, an allocation of a particular frequency has to be made against the background of available frequencies and the effect which that allocation may have upon the other frequencies already allocated in the area concerned as well as upon the range of choice which remains in relation to future allocations. The power of a station may well affect such factors by affecting the area of coverage. Thus, it may be possible in a given area to establish a low-powered translator station without affecting any other stations in the area, but not to establish a high-powered commercial station.

118. The characteristic, therefore, which has led Council to conclude that the powers in issue should only be subject to a recommendatory jurisdiction is the interdependence between the decision under review and other decisions, including those which have not yet been made. This interdependence means, in the Council's view, that these decisions must ultimately be the responsibility of the authority responsible for planning the use of the frequency spectrum. This needs to consider issues beyond the immediate merits of an individual exercise of a power distinguishes, in the opinion of Council, the present powers from those discussed above (paras 104-115).

119. In its submission to Council, the Department of Communications urged that powers of the Minister of a technical nature ought not to be reviewable on the merits. The Department referred to the Green Report and to the role of the Government in protecting the frequency spectrum as a national resource. It was stated that a decision had been taken to remove 'technical planning decisions from the control of an adjudicative body ... and to place it exclusively in the hands of the Minister'.

120. When making decisions the Minister has available to him the expert technical advice of this Department. The Minister is also under a statutory obligation(s.111C(2))to consult with representatives of radio and television stations in relation to matters affecting their interests and to consult with the Broadcasting Council, it if exists, in relation to matters generally affecting broadcasting and television. It is understood that in practice there are regular formal meetings as well as a continuous flow of information between officials and the representatives of the licensed stations.

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121. Reference was also made by the Department to the Minister's general planning powers. Such matters as determining the operating frequency and power of a station, it was argued by the Department, could not be considered as isolated decisions and had to be considered in the wider context of a need to plan the future use of the frequency spectrum; the existing demands on that spectrum by commercial interests; and such non-commercial interests as defence, and international obligations.

122. In the Council's view the considerations put forward by the Department justify the conclusion that the ultimate power of decision should remain with the planning authority which is, under present circumstances, the Minister. It does not follow that there should be no means of review; rather this is an argument that such review should be recommendatory rather that determinative.

123. Hence whilst the Council has concluded that technical and planning decisions of the Minister are capable of and appropriate for review on the merits, it has also concluded that when exercising this jurisdiction the reviewing authority should make a recommendation to the Minister rather than a final determination in substitution for a decision of the Minister.

124. This conclusion has an important bearing on the selection of the authority which should be given the function of review. The Council has previously recorded its views as to the conferral upon the Administrative Appeals Tribunal of a jurisdiction in which the power of the Tribunal is limited to making a recommendation as opposed to a determination which finally settles the issue in question. These views were originally expressed in relation to Part XXII, clause 22(3) of the Schedule to the Administrative Appeals Tribunal Act 1975 which concerned the jurisdiction of the Tribunal to review decisions to deport immigrants or aliens consequent upon criminal convictions: Migration Act 1958, sections 12 and 13. This jurisdiction is now conferred upon the Tribunal by section 66E of the Migration Act 1958. When reviewing such decisions the Tribunal's powers are limited to powers to affirm the decision or to remit the matter for reconsideration in accordance with any recommendations of the Tribunal. Council has recommended that this limitation should be amended so that the Tribunal can exercise all its normal powers under section 43 of the Administrative Appeals Tribunal Act 1975: Third Annual Report at para. 87 (1979). The reasons advanced for so concluding were stated in that Annual Report to be: The recommendatory jurisdiction is inconsistent with the Tribunal's

character, since its function is to determine the correct or preferable decision in the case, and not to act as a Ministerial adviser.

To encourage an applicant to incur considerable hardship and expense in applying to the Tribunal with no guarantee that he will not be deported even if successful before the Tribunal is to impose too great a burden on him.

A recommendatory jurisdiction is not inherent in the nature of the subject matter; tribunals with power to revoke deportation orders, made on the ground of criminal conviction, on their merits exist in the United States of America and Canada.

125. The Council remains of the view that in circumstances where these reasons apply, the general principle that decisions of the Administrative Appeals Tribunal should be determinative rather than recommendatory should be adhered to. However, the third of these reasons is not applicable to the class of decisions at present under discussion. For reasons already stated the Council

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has concluded that in relation to those decisions a recommendatory jurisdiction is inherent in the subject matter and a determinative jurisdiction is inappropriate. That being so, the question that arises is whether the general principle stated above is of such importance that the function of recommendatory review should be given to a body other than the Administrative Appeals Tribunal. The conclusion that in relation to particular administrative discretions the powers of the review tribunal should be limited to the making of recommendations contributed to a recommendation of the Council in another report that the review function should be conferred upon another body and not upon the Administrative Appeals Tribunal: Report on the Australian Federal Police Act - sections 38 and 39 (para. 57). It is relevant to note that in that case the other body was already in existence and already had the function of reviewing certain administrative decisions.

126. Part of the policy underlying the establishment of the Administrative Appeals Tribunal as a general tribunal of review was a desire to avoid proliferation of tribunals. In the Council's view this is still a valid objective. It would be willing to propose that the jurisdiction at present under discussion be given to the Administrative Appeals Tribunal despite its recommendatory character, if the only alternative was the creation of a new tribunal. However that is not the present case. It would be possible for the jurisdiction to be given to the Australian Broadcasting Tribunal. There is no other appropriate body in the Council's view; hence the choice lies between that tribunal and the Administrative Appeals Tribunal.

127. That choice depends upon the balancing of a number of factors. Selection of the Australian Broadcasting Tribunal is supported by the following considerations: Its constitution and powers (particularly if those powers are augmented as

proposed in the Council's earlier Report on its procedures) provide it with the capacity to undertake a review function in these cases and the type of administrative inquiry involved is consistent with its other functions.

Decisions affecting it, and is therefore well suited to advise the Minister in relation to consideration of decisions of the kind at present under discussion.

The choice of the Administrative Appeals Tribunal may be inappropriate as it confers upon it a function which is not consistent with its essential character as so far envisaged, namely the resolution of disputes between citizen and State, and thus detracts from the public perception of and confidence in the Administrative Appeals Tribunal.

128. Considerations supporting the choice of the Administrative Appeals Tribunal are; It is a review tribunal which commands general confidence, has a wide

jurisdiction and considerable experience, and may be constituted as necessary to include people with appropriate expertise.

Its essential character as a determinative body is not likely to be significantly weakened by the inclusion of some recommendatory functions within its jurisdiction provided that these are rare exceptions to the general pattern and are included only for clear and cogent reasons arising from the specific circumstances of the particular areas of jurisdiction concerned.

It is undesirable to confer a review function upon a body (the Australian Broadcasting Tribunal) whose essential function is to make primary decisions.

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It is desirable to maintain a clear separation between the functions of the Australian Broadcasting Tribunal and those of the Minister.

129. While the Council considers that either tribunal would be capable of carrying out the proposed review function, it finds the arguments in favour of the Administrative Appeals Tribunal more persuasive.

RECOMMENDATION 4Subject to Recommendation 5, the Broadcasting and Television Act 1942 should be amended to confer jurisdiction on the Administrative Appeals Tribunal to review decisions of the Minister taken under sections 84(1), 85(4), 86(12), 94, 95 and 96.

RECOMMENDATION 5In respect of those decisions identified in Recommendation 4, the Administrative Appeals Tribunal should not possess all those powers set out in section 43 of the Administrative Appeals Tribunal Act 1975 but should be restricted to either affirming the decision under review or remitting it for further consideration in the light of any recommendations the Tribunal may make.

130. Having made such a Recommendation, Council considers it desirable for some requirement to be imposed upon the Minister to explain those decisions which are ultimately taken and which are inconsistent in whole or in part with a recommendation of the Tribunal. The Tribunal's recommendations to the Minister will be made publicly after public proceedings. General understanding of, and confidence in, the decision making process requires that any decision not to adopt the recommendations, wholly or in part, should also be given publicly and be subject to Parliamentary scrutiny. Hence the Council is of the opinion that the Minister should be obliged to explain such decisions in parliament within fourteen sitting days of such a decision being taken. Furthermore, such a requirement would ensure a measure of accountability and provide an opportunity for public debate.

RECOMMENDATION 6Where the Administrative Appeals Tribunal makes a recommendation to the Minister and that recommendation is not accepted in its entirety, the Minister should be obliged to report to Parliament the reasons for his decision. The Broadcasting and Television Act 1942 should be amended to impose such an obligation upon the Minister and should provide that the statement should be made within fourteen sitting days of such a decision being reached.

Non-reviewable Decisions131. Of those decisions identified above (para. 98), Council is of the opinion that the following should not be reviewable on the merits by the Administrative Appeals Tribunal. These decisions are the power of the Minister to: direct the Tribunal to hold general inquiries (s.18(2)); arrange for the provision of facilities and services of the Australian

Broadcasting Tribunal (s.28A); approve the Australian Broadcasting Tribunal appointing advisory

committees (s.29); grant leave of absence to a Commissioner of the Australian Broadcasting

Commission (s.36) or to a member of the Special Broadcasting Service (s.79L);

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require the Australian Broadcasting Commission to broadcast items in the national interest (s.64);

prohibit the Australian Broadcasting Commission from broadcasting any matter (s.77);

initiate an inquiry into the grant of a new licence (s.82(1); initiate an inquiry into the grant of a supplementary licence (s.82A); prohibit licensees from broadcasting any matter (s.99(3)); require licensees to broadcast items in the national interest (s.104); plan the development of broadcasting and television services in Australia,

determine standards and practices in relation to technical equipment, and conduct examinations and issue certificates for technicians (s.111C(1)(a), (b) and (d));

direct the Australian Broadcasting Commission to make programs available to commercial television stations (s.113(1));

give directions as to the custody of a record of a matter of historic interest (s.117A(7)).

132. The principal reason for reaching these conclusions is that the above provisions do not in an immediate sense affect or interfere with any existing right or expectation of either the broadcasting industry or the general public. It is considered that a valid distinction may be made between the exercise of a power which interferes with an existing right or expectation and the exercise or non-exercise of a power which may result in a failure to create new rights and expectations but which itself interferes with no such existing interests. Whilst this is a consideration of general application, additional reasons have influenced Council in respect of each of the provisions identified as not appropriate for review on the merits.

Section 18(2)133. Section 18(2) was amended in 1980 and it is now provided that the Minister may direct the Australian Broadcasting Tribunal to hold an inquiry into any matter relating to the operation of the Act, any matter relating to broadcasting services or television services or both; and any other matter with respect to which Parliament has power to make laws by virtue of paragraph 51(v) of the Constitution. Examples of such inquiries by the Tribunal include its present inquiry into the reception of cable and subscription television in Australia and an inquiry into translator services in and around Foster, Victoria. The Minister may not direct an inquiry to be held in relation to matters affecting the Australian Broadcasting Commission or the Special Broadcasting Service. This provision is thus concerned with the general and overall administration of the Broadcasting and Television Act 1942 and is, in the opinion of Council, a provision which is more appropriately responsive to a political and governmental means of accountability than to a means of review which is adversarial in nature and employs a process analogous to the resolution of an inter-party dispute.

Section 28A134. This section provides that the Minister may, at the request and expense of the Australian Broadcasting Tribunal, arrange for the provision of facilities and services required by the Tribunal for the performance of its functions. It is understood that this section has not been the source of concern. Such internal matters are not appropriate for review.

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Section 29135. This section provides that the Australian Broadcasting Tribunal may, with the approval of the Minister, appoint such advisory committees as it thinks fit. Again, it is not considered that matters relating to the internal functioning of the Australian Broadcasting Tribunal are appropriate for review on the merits (see also para.66 above).

Section 36 and 79L136. These sections authorise the Minister to grant leave of absence to a Commissioner of the Australian Broadcasting Commission or to a member of the Special Broadcasting Service. These, also are entirely matters of internal administration.

Sections 77 and 99(3)137. These provisions empower the Minister to prohibit the Australian Broadcasting Commission and a licensee from broadcasting or televising any matter. It is understood by Council that these provisions have seldom been exercised: in 1943 the Australian Broadcasting Commission reported that the Minister had prohibited broadcasts of barrier positions of horse races; in 1946 the Minister prohibited the broadcasting of radio talks relating to venereal disease; and in 1963 the Minister prohibited the Australian Broadcasting Commission from broadcasting an interview with a former French Premier and opponent of General de Gaulle.

138. Council is of the opinion that these decisions need not be subject to review on the merits. Sections 78A and 105A now require the Minister to report to Parliament within seven sitting days and to provide a statement as to his reasons for the making of such decisions. The legislature has thus indicated the manner in which it considers the Minister should be held to account and, in the opinion of Council, there is little reason in the present context to supplement this means of review by the availability of review by the Administrative Appeals Tribunal.

Sections 64 and 104139. These provisions empower the Minister to require the Australian Broadcasting Commission and a licensee to broadcast or televise, without charge, such items of national interest as are specified. In recent decades neither power appears to have been exercised. The exercise of these powers, like the exercise of the powers conferred by sections 77 and 99(3) (paras 137-138), is subject to sections 78A and 105A. Those sections require written explanation for the exercise of the power to be tabled in parliament within seven days.

140. Just as it has been concluded that sections 78A and 105A provide an adequate safeguard against an arbitrary exercise of the decisions authorised by sections 77 and 99(3), a similar conclusion has been reached in respect of decisions made pursuant to sections 64 and 104. There are, however, additional reasons in support of Council's conclusions that there need not be review on the merits of these provisions. First, the exercise of the power is subject to a limitation that the matter required to be broadcast is not to exceed thirty minutes in any period of twenty four consecutive hours. Second, it may be expected that the Minister could not conclusively determine that a matter is in

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the national interest. Should this issue arise, a court could readily intervene and quash any conduct of the Minister beyond the powers actually conferred. Finally, unlike the exercise of section 77 and 99(3), sections 64 and 104 result not in the censorship of material available to the community but rather the making available of material.

Section 82141. The exercise of the discretion under s.82(1) is a decision inextricably bound up with the overall planning philosophy of the Department. It is essentially a political decision, for which the Minister should be responsible to the Parliament, whether the resources of his Department at any given time should be allocated to one priority or another. Council does not consider that review on the merits should exist, for example, of a decision by the Minister to give priority to the grant of supplementary licences rather than to some other form of broadcasting.

142. Moreover, Council understands that at any point of time the Department has on hand several hundred proposals received from the community for such matters as the grant of commercial or public television licences or commercial or public radio licences, FM licences and so on. These proposals may be of varying standards of detail. It is considered that it is not possible to review by means of a forum such as the Administrative Appeals Tribunal which of these proposals, or indeed proposals initiated from within the Department, should be referred to the Australian Broadcasting Tribunal. To grant a right of review of such decisions could result in giving priority to one proposal without the other proposals having been considered. In addition, it would not be possible for a review authority to consider a proposal without also considering such factors as available frequencies and power allocation.

Section 82A143. Initiating an inquiry into the grant of a supplementary licence pursuant to s.82A is distinguishable from other licence grants in that that provision contemplates an existing holder of a licence for a commercial broadcasting station or a consortium of such licensees approaching the Minister with a request for the grant of a supplementary licence. Such a distinction is not sufficient, in the opinion of the Council, for a different approach to apply to s.82A than is applied to s.82. According a right of review to potential applicants for supplementary licenses would in effect grant such persons priority over other possible licensees of independent radio stations; it would also be difficult on an application for review to consider an application for a supplementary licence without also considering other supplementary licences and an overall effect which the grant of a supplementary licence would have on the frequencies available.

Sections 111C(1)(a), (b) and (d)144. The first two powers relate to the planning of the development of broadcasting in Australia (s.111C(1)(a))and the determination of standards and practices in relation to technical equipment(s.111C(1)(b)). Both decisions relate to the overall administration of the Broadcasting and Television Act 1942 and could not, in the opinion of Council, be considered in isolation from all other factors. These are very much part of the responsibilities which the Green Committee identified as within the role of Government in broadcasting.

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145. Section 111C(1)(d) empowers the Minister to conduct examinations and issue certificates as to the competence of persons to operate technical equipment. It is not considered appropriate to review what is essentially an examination system as opposed to the revocation or suspension of a person's qualifications once attained.

Section 113(1)146. Section 113(1) specifies that the Australian Broadcasting Commission is to make available to a commercial television station at a locality at which there is not a national television station such programs of the Commission as are specified by the Minister. Council is of the opinion that decisions made under this sub-section need not be subject to review by the Administrative Appeals Tribunal. There would appear to be no person or body, other than the Australian Broadcasting Commission, who would wish to challenge such a decision of the Minister and any !review would need to be conducted quickly if it was to be of any value.

Section 117A(7)147. This section empowers the Minister to give directions requiring a person to deliver up a record of a matter of historical interest. The person to whom the direction is given is entitled to fair compensation and it has been recommended above (para.130) that decisions as to compensation should be reviewable. If this recommendation is accepted it is unnecessary, in the Council's view, for the other decisions of the Minister under this section to be reviewable.

PART 5: THE ADMINISTRATIVE APPEALS TRIBUNAL148. The Council has discussed in part 4 above the considerations affecting its choice of the Administrative Appeals Tribunal as the appropriate body to exercise a recommendatory function in reviewing certain decisions of the Minister. It has not considered it necessary to discuss in detail the appropriateness of the Administrative Appeals Tribunal to review on the merits those other decisions of the Minister and the Australian Broadcasting Tribunal in relation to which rights of review have been recommended. Outlined in this Part of the Report, however, is a brief indication of the reasons why Council regards that tribunal as the appropriate body for those purposes, together with recommendations on: the constitution of the Administrative Appeals Tribunal; the standing requirements to be satisfied by a person seeking review; the role of the Australian Broadcasting Tribunal when an application for

review on the merits is heard.

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THE APPROPRIATE TRIBUNAL149. Assuming that review on the merits of decisions made under the Broadcasting and Television Act 1942 is desirable, there appear to be substantial reasons why such review should be conducted by the Administrative Appeals Tribunal. That Tribunal was established subsequent to the recommendations of both the Kerr and Bland Committees(Parlt Paper No. 144, 1971 : Parlt Paper No. 316, 1973)and is part of a total scheme of administrative review. It was envisaged that the Tribunal should hear appeals from as many types of decisions as possible and thus avoid the haphazard growth of administrative tribunals which occurred prior to 1975. The Bland Committee was of the opinion that the fewer tribunals there are the more likely would be the most economic use of resources and the better and more even the resolution of individual issues because the members of the tribunals would not be narrowly circumscribed in their jurisdictional range (Bland Report at para. 125). Members of the Administrative Appeals Tribunal have been appointed by reason of their expertise and at present the Tribunal has members qualified in such diverse fields as law, medicine, land valuation, air navigation, insurance, customs and science. Others can be appointed where necessary to provide expertise appropriate to a new area of jurisdiction. Moreover, the Administrative Appeals Tribunal is an independent statutory authority and has considerable expertise in review of a wide variety of administrative decisions. It has already been involved in hearing a number of appeals from decisions of the Australian Broadcasting Tribunal.

A Specialist Tribunal?150. While review on the merits of decisions of the Australian Broadcasting Tribunal is considered desirable, it is suggested that it would not be appropriate to establish a specialist tribunal to conduct such a review. Any need for specialist knowledge can be satisfied by the appointment of experts to the Administrative Appeals Tribunal. As recommended below, s.119A(3) of the Broadcasting and Television Act 1942 should be amended to provide for more flexibility in the constitution of a bench of the Administrative Appeals Tribunal in place of the present restriction to a presidential member sitting alone.

151. It has therefore been concluded that there is no substantial reason why a specialist tribunal should be established in preference to providing for review by the Administrative Appeals Tribunal.

CONSTITUTION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

152. Section 19A(3) of the Broadcasting and Television Act 1942 at present provides that when reviewing decisions arising under that Act the Administrative Appeals Tribunal is to be 'constituted by a presidential member alone'. Such a provision is not unique as some other statutory provisions also expressly stipulate how the Tribunal is to be constituted in given jurisdictions, e.g. Repatriation Act 1920, s.107VZZC.

153. In the absence of such provisions, section 20(1) of the Administrative Appeals Tribunal Act 1975 empower the President of that Tribunal to give directions as to the arrangement of the business of the Tribunal and as to the

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persons who are to constitute the Tribunal for the purposes of particular proceedings.

154. Council is of the opinion that the present restriction on the constitution of the Administrative Appeals Tribunal should be removed and that s.20(1) should operate in its place. In appropriate circumstances it may be desirable for the Tribunal to have available to it the expertise of people with knowledge relevant to the broadcasting industry. In many cases it would probably be appropriate for the Tribunal to have as one of its members a presidential member who is a Judge of the Federal Court of Australia, but there is no reason in principle for its composition to be limited to such persons.

RECOMMENDATION 7Section 119A(3) of the Broadcasting and Television Act 1942 should be repealed.

STANDING REQUIREMENTS155. In the absence of any statutory provision to the contrary, an application to the Administrative Appeals Tribunal to review on the merits a primary decision is normally regulated by section 27 of the Administrative Appeals Tribunal Act 1975. That section in its entirety provides:27.(1) Where this Act or any other enactment provides that an application may

be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth) whose interests are affected by the decision.

(2) An organisation or association of persons, whether incorporated or not, shall be taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organisation or association.

(3) Sub-section (2) does not apply in relation to a decision given before the organisation or association was formed or before the objects or purposes of the organisation or association included the matter concerned.

Section 30 similarly provides that a person 'whose interests are affected' by a decision may apply to the Tribunal to be made a party to proceedings for review.

156. The 'interests' referred to need not be pecuniary interests or even specific legal rights: McHattan and Collector of Customs (NSW) (1971) 1 ALD 67, at 69-70 per Justice Brennan. Restrictions of that kind, it has been said, are incompatible with the variety of decisions which are subject to review. Even though the objects contained in the Memorandum of Association of an organisation may indicate that it is interested in proceedings before the Administrative Appeals Tribunal, an application by that organisation to be joined as a party pursuant to section 30 will be refused if the organisation's interests are not affected: Re Maunsell and Partners Pty Ltd and Export Developments Grants Board (1980) 2 ALD 813, at 817-18.

Statutory Modifications157. Notwithstanding section 27, a number of statutory provisions expressly modify the general rule as to who may apply to the Tribunal, for example,

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section 63(1) of the Compensation (Commonwealth Government Employees)Act 1971 and By-laws 126(3), 222(8) and 296(2) made pursuant to section 115 of the Postal Services Act 1975.

158. Comparable to these provisions is section 119A(2) of the Broadcasting and Television Act 1942. That sub-section provides:

119A. (2) Notwithstanding section 27 of the Administrative Appeals Tribunal Act 1975 -(a) an application in pursuance of paragraph (1)(a), (b), (ba), (c), (d), (e) or (f)

may be made only by or on behalf of the licensee; and(b) an application in pursuance of paragraph (1)(g) may be made only by or

on behalf of the person applying for the approval.

As has already been noted, section 119A(2) has been one of the bases upon which an application to the Administrative Appeals Tribunal has been dismissed: Re Laird and Australian Broadcasting Tribunal (Unreported, 10 May 1979)(para.26).

159. This provision does not apply to determinations of the Minister under section 105AB (section 119A(1)(h)); nor does it apply to those decisions of the Australian Broadcasting Tribunal identified in section 119A(1)(i) to (k).

160. Section 119A(2) has been the subject of a great deal of criticism. In his recently published book, Broadcasting Law and Policy in Australia, Armstrong maintains of section 119A(2):

This is one of the most severe, and arguably the most severe, of all the restrictions imposed on the right to appeal within any area of the A.A.T. jurisdiction (at 220).

A number of submissions received by Council also drew attention to the deficiencies of section 119A(2). By way of example, the Queensland Law Society thus stated that it was 'self evident' that section 119A(2) should be amended to permit the decisions of the Australian Broadcasting Tribunal to be subject to review on the merits by the Administrative Appeals Tribunal. In the opinion of that Society, section 27 of the Administrative Appeals Tribunal Act 1975 should apply to applications for review under the Broadcasting and Television Act 1942.

161. A submission received by Council from the Department of Communications following the Council's earlier Report on the procedures of the Australian Broadcasting Tribunal stated:

In general terms, an ABT determination that a party has standing at a particular ABT inquiry places that party on an equal footing with all other parties participating in the inquiry. It then appears inequitable that only one of those parties, i.e. the licensee, is entitled to seek AAT review of the relevant decision, since the interest of the other parties in the proceedings and outcome has al ready been recognised. Further, given the desirability of public participation, the willingness or motivation of the public to continue to participate may be jeopardised if participating members of the public who feel genuinely aggrieved by the decision are precluded from seeking AAT review of the decision, particularly when a licensee is entitled to seek such a review.

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162. Professor J. Goldring considered the standing, requirements conferred by section 27 of the Administrative Appeals Tribunal Act 1975 to be the absolute minimum and that it might be worth extending them in view of the fact that every resident of Australia has a vital interest in control of the electronic media.

163. In the opinion of Council, section 119A(2) imposes an undue restriction on the rights of interested persons to obtain review of decisions affecting their interests. To restrict to licensees the eligibility to seek review of some decisions implies that the interests of other persons do not require or deserve the same consideration. The present restriction, of course, is analogous to the fact that section 119A(1) confers jurisdiction on the Administrative Appeals Tribunal in some cases to review a decision when it is adverse to the interests of the licensee but not when it is adverse to the interests of another party, e.g. a decision to refuse renewal of a licence is reviewable, but not a decision to grant a licence. If Council's earlier Recommendation that all substantive decisions of the Australian Broadcasting Tribunal should be open to review, is accepted, it may be expected that persons other than the licensee would be interested in seeking the review of, for example, a decision to renew a licence.

164. In the opinion of Council, therefore, section 119A(2) should be repealed. Public participation in the regulation of the broadcasting industry is not encouraged by allowing members of the public to participate in the proceedings of the Australian Broadcasting Tribunal and yet precluding them from seeking the review of an adverse decision. To restrict the right to seek review of an adverse decision. To restrict the right to seek review to one only of the participants in proceedings before the Australian Broadcasting Tribunal unfairly gives an to that party over other participants.

165. In view of its opinion that section 119A(2) is unnecessarily restrictive as to who may apply for a review of a decision of either the Australian Broadcasting Tribunal or the Minister, Council has considered whether that provision should be replaced by the normal operation of section 27 of the Administrative Appeals Tribunal Act 1975.

166. An alternative to section 27 would be to restrict applications for review on the merits to those people who had participated in the earlier proceedings before the Australian Broadcasting Tribunal. It may be expected that an applicant for review of a decision of the Australian Broadcasting Tribunal will normally be a person who did in fact participate in the earlier proceedings. But to so restrict applications for review may preclude, inter alia, a person or group which was not aware of the possibility that its interests might be affected until the Tribunal had reached its decision and provided its findings and reasons. Furthermore, a person or group which was incorrectly denied standing in proceedings before the Australian Broadcasting Tribunal but did not appeal on that issue at that time, should not thereby be denied standing to contest the ultimate substantive decision.

167. Section 119A(2) does not apply to decisions of the Minister or to certain decisions of the Tribunal. Its repeal would result in all questions of standing to seek review of s.27 of the Administrative Appeals Tribunal Act 1975. In the Council's opinion this is the desirable position to achieve, as it is not aware of any reason why the principle expressed by section 27 should not apply to all applications for review, whether under the existing legislation or under the amendments recommended in this Report.

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RECOMMENDATION 8Section 119A(2) of the Broadcasting and Television Act 1942 should be repealed.

THE ROLE OF THE AUSTRALIAN BROADCASTING TRIBUNAL IN REVIEW

168. Comment on the role which the Australian Broadcasting Tribunal should adopt when an application is made to the Administrative Appeals Tribunal for a review of a decision is necessary for a number of reasons. First, section 30 of the Administrative Appeals Tribunal Act 1975 provides that the parties to a proceeding before that Tribunal shall include 'the person who made the decision'. Second, not only is the Administrative Appeals Tribunal on an application for review empowered by section 43 of the 1975 legislation to affirm or set aside the decision under review and substitute its own decision on the merits; it may also remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal' (section 43(1)(c)(ii)). Third, the High Court of Australia in R. v. The Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 specifically commented on the role adopted by the Australian Broadcasting Tribunal in the proceedings before that Court (144 CLR 13 at 35-36).

169. The issue involved is the extent to which an administrative tribunal should participate in proceedings on review when it is possible that a matter may be remitted back to it for further consideration and when participation on review may be seen to endanger the primary decision maker's impartiality. The observations of the High Court to this effect have been cited in contexts other than that of broadcasting: Kelly v. Coates (1981) 3 ALD 264.

170.`Council accepts that a difficulty may arise in some circumstances but is of the opinion that the correct role for the Australian Broadcasting Tribunal has been foreshadowed by both the comments of both the Federal Court in Kelly v Coates, and Justice Morling sitting as the Administrative Appeals Tribunal in the Control Investments case. In Kelly v. Coates Justice Toohey observed that ordinarily the situation will be that there will be parties concerned with the outcome of a dispute, some prepared to challenge and others to support the decision under review. But where only one party has an interest in proceedings before a Tribunal, it must be taken that Parliament has foreseen that the Tribunal may both participate in an application for review and also have the matter remitted to it for reconsideration.

171. Unlike the situation that arose in Kelly v. Coates, it is unlikely that no party other than the applicant and the primary decision maker will have an interest in an application for review in appeals arising under the Broadcasting and Television Act 1942. In that context Justice Morling has stated in the Control investments case:

The legislation leaves the Tribunal in an unusual position on an application for review of one of its own decisions. It is, at the one time, a party to the proceedings and the decision-maker whose decision is the subject of the proceedings. In these circumstances I think the Tribunal took a responsible and helpful stance in the proceedings before me. It did not pursue issues which it regarded as being of minor or no significance, but concentrated on the relatively few matters which it deemed to be of significance in

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determining whether approval of the applications would be in the public interest. Further, it offered to assist the Tribunal on any matter if called upon to do so. The course adopted by the Tribunal was both proper and helpful and materially assisted in the resolution of the difficult matters which arose for consideration on the applications for review.

172. Whilst Council is aware that too great an involvement by a decision maker in an application for review may be seen as prejudicing the impartiality of that decision maker or as expressing a preconceived attitude, it is of the opinion that review by a body such as the Administrative Appeals Tribunal is essentially different from judicial review. Where the substantive merits of a decision are in issue, it is beneficial to the Tribunal to have as much information before it as is relevant to an understanding of why a decision has been made. Where there are interested parties. appearing before the Administrative Appeals Tribunal and where it may be expected that those parties will adequately present the issues to that Tribunal, it may be that the need for involvement of a decision maker such as the Australian Broadcasting Tribunal will be less than may otherwise be the case. In other situations, however, it may be that the need for involvement of a decision maker such as the Australian Broadcasting Tribunal will be less than may otherwise be the case. In other situations, however, it may be that the responsibility for placing information before the Administrative Appeals Tribunal will fall to the decision maker. Review by the Administrative Appeals Tribunal should not necessarily be seen as involving the Australian Broadcasting Tribunal in adversarial presentation of evidence such as might arise in the case of parties with conflicting interests.

APPENDIX IPersons and Organisations which made SubmissionsMr C. Enright, Macquarie UniversityProfessor J. Goldring, Macquarie UniversityDr G.D.S. Taylor, Solicitor Bar Association of QueenslandMr RL.E. Muir, Executive Director, 2 Triple M-FMMr M.B. Smith, Barrister-at-LawJustice in BroadcastingDr. C.V. LatzMr P.G. LairdAustralian Broadcasting TribunalFederation of Australian Radio BroadcastersAustralian Council for Children's Films and Television (South Australia)Public Broadcasting Association of AustraliaMr M. Keogh3CR Community Radio Federation LtdMr M.F.E. Wright Department of CommunicationsDr C. Hazlehurst

APPENDIX IIPersons Met by Council CommitteeMr D. Jones, Australian Broadcasting TribunalMr D. Foster, Federation of Australian Radio BroadcastersMr D. Morgan, Federation of Australian Commercial Television Stations

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Mr M.B. Smith, Barrister-at-LawMr M. Armstrong, University of New South Wales

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