Amalgamated Television Services Pty Ltd & Ors v The Minister of State for Communications [1982] FCA 276

Administrative Decisions (Judicial Review) Act 1977 SS, 7 (1), 16 (3)

AMALGAMATED TELCVISION "SERVICES PTY, LIMITED & ORS. v. THE MINISTER OF STATE FOR_COMNMUNICATIONS

) NEW SOUTH WALES DISTRICT 'REGISTRY ) NO. G. 155 OF 1982

BUTWEEN : AMALGAMATED TELEVISION SCRVICES PTY, LIMITED

AND: THE MINISTER OF "STATE FOR COMMUNICATIONS Respondent ORDERS JUDGE MAKING ORDERS: LOCKHART J. WHERE MADE: AT SYDNEY DATE OF ORDERS: THURSDAY 16 DECEMBER 1982

) ) NEW SOUTH WALES DISTRICT REGISTRY ) NO. G. 155 OF 1982 ) )

LOCKHART J. This case raises short questions of construction of

two documents. The questions concern Division 5A of the Broadcasting and Television Act 1942 ("the Act") which relates to commercial television and broadcasting translator stations. The first question arises from the form which the Act took on 7 September 1976 and the second question from its form in May-June

1980. 1t 1s easier to understand the questions if I defer stating them until I have mentioned the statutory provisions and

DAA NEEM TEE" REE ET EE OL TNE CTT LETITIA IE eT PE INE OY RE AFB ET

relevant for present purposes were in the following form on 7

"lLOSAA. In this Division - - 'metropolitan broadcasting area' means an area determined by the Board under sub-section (1) of section 105AB to be an area appropriate to

'metropolitan broadcasting station' means a commercial broadcasting station situated within a radius of 50 kilometres from the

General Post Cffice in the capital city of a State;

'metropolitan television area' means an area Getermined by the Eoard under sub-section (2)

of section 105AB to be an area appropriate to be served by metropolitan television stations;

'metropolitan television station' means a commercial television station the principal studio of which is situated within a radius of 32 kilometres from the General Post Cffice in the capital city of a State."

"1O5AB. (1) For the purposes of this Division, the board shall determine an area in each State as the area appropriate to be served by the metropolitan broadcasting stations in the State, bezung an area that includes the capital city of the State.

(2) For the purposes of this Division, where there are Z or more metropolitan television stations in a State, the Board shall determine an area in the State as the area appropriate to be served by those metropolitan television stations, being an area that includes the

(3) The Board may vary a determination under sub-section (1) or (2).

(4) The Board shall keep copies of maps showing the boundaries of all areas determined by it under sub-sections (1) end (2) and any

person may inspect, and may make a copy of, such a map."

• _ serneo sctp " magne "Sere nee APY cmd ahr sts wlan OEE TG RE TE NH NT SBE A ELI ES TL LTT SP A, IR OEE TM EELS BEET EI

The only materially relevant change to those provisions

effective in May-June 1980 was that the "Minister" was

substituted for the "Board" wherever occurring. "The Board" was

The definition of the areas served by commercial television stations and of the areas designed to be served by proposed commercial television translator stations is, and at all relevant times was, vital to the operation of the Act and to the interests of licensees and prospective licensees for various purposes which it is unnecessary to relate in detail. It as sufficient for present purposes to say that the Act adopts a principle that, subject to the necessity of ensuring that the needs of the community in the area to be served by the television translator station are adequately served, 1t 1s desirable that a television translator station licence for the purpose of retransmitting programs for reception in an area that 1s not

within a metropolitan television area should be granted for the

purpose of retransmitting the programs of a station that is not a

metropolitan television station in preference to one that 1s

Similar provisions apply to the granting or renewal of

licences for commercial broadcasting translator stations (sub-ss.

The Poard met on 7 September 1976. There was before it

a document titled "Determination of Areas to be Served by

form of a submission to the Board and stated its purpose as being

"for the Board to determine areas of coverage by broadcasting and

will be necessary for the Board to formally determine areas appropriate to be served by

metropolitan broadcasting and television stations. It will be noted that it is

necessary only for the Board to determine areas for metropolitan stations."

It is recommended that the Board adopt the envelope of all andividual metropolitan

station coverages as set out on the coverage maps of metropolitan broadcasting and television stations recently published and formally determine the areas which may be used in connection with the provisions of the amended Act. It will be noted that under section 105AC. (sac) an appeal may be made to the Administative Appeals Tribunal against the Board's determinations."

• s ' - u _ Served by Broadcasting and Television Stations" provides:

areas of coverage of broadcasting and television stations in relation to the

provisions of the Broadcasting and Television Arendment Act 1976, which were set out in this Agenaum.

The Board formally determined to adopt the individual coverage of metropolitan stations

as set out in the coverage maps as the areas appropriate to be served by those stations for

the purpfoses of the provisions of s. 105AB (1) of the Act..."

It 1s common ground that there were four "coverage maps" referred to in the document submitted to the Board which 1 heave mentioned above and in the Board Minute and which were before the Board at its meeting on 7 September 1976, that those maps covered the areas of southern Queensland, New South Wales, Victoria, Tasmania and South Australia and were current on 7 September 1976 and that two of the maps related to the areas for commercial

broadcasting stations and two for commercial television stations

The only other material fact is that the Minister of '

State for Post and Telecommunications made a Getermination dated

21 May 1980 published in the Gazette on 10 June 1980 in these

"Broadcasting end Television Act 1942 DETERMINATION UNDER SECTION 105AB (3)

I, Anthony Allan Staley, Manister of State for Post and Telecommunications, in pursuance of

Section 105AB (3) of the Broadcasting and Television Act 1942, determine the aréa in the

State of New South hales appropriate to be served by metropolitan television stations in the State to be the Sydney Statistical Division as defined by the Australian Bureau of Statistics at the Census of 30 June 1976.

Dated this twenty-first day of May 1580. A. A. STALLY Minister of State for Post and Telecommuncations" It 1S commcn ground that a map which was tendered in evidence before me titied "Sydney Statistical Division 1976

Census" defines the area referred to in the Minister's

The applicants, who are respectively the licensees of

Sydney metropolitan commercial television stations ATN-7, TCN-9, and TEN-10, submitted that the determination by the Board on 7 September 1976 was made solely under sub-s. 105AB (1) in relation to the area in New South Wales appropriate to be served by the metropolitan broadcasting stations in that State and could not be construed also as a determination in relation to the area

appropriate to be served by the metropolitan television stations

They submitted that the determination of the Minister dated 21 May 1980 was made solely under sub-s. 105AB (3) and therefore could have no force other than as a variation of the earlier determination of the Board, and that, as the

determination of the Eoard was not made under sub-s. 105AB (2), it followed that the Minister's determination was ineffective and

In these circumstances 1t was said that the Minister

failed to make a decision pursuant to sub-s. 105AB (2), thus

entitling the applicants to seek an order of review pursuant to

sub-s. 7 (1) of the Administrative Decisions (Judicial Review)

Act 1977 ("the Judicial Review Act"). Reference was made to the scope of relief available under sub-s. 16 (3) of the Judicial

The respondent submitted first that the determination of

the Board in 1976 was made under both sub-ss-. 105AB (1) and (2) and applied to the areas appropriate to be served by metropolitan broadcasting stations and metropolitan television stations. The

respondent submitted that, on its true construction, the determination of the then Minister for Post and Telecommunications dated 21 May 1980 was therefore valid as it was simply a variation of the Board's earlier determination with respect to television stations. The respondent submitted in the alternative that properly construed the Minister's determination of 21 May 1986 constituted a fresh determination under sub-s.

105AB (2) of the area to be served by metropolitan television

lt 1S common ground that this Court has jurisdiction

under the Judicial Review Act to determine these questions and

that the applicants are persons aggrieved in the relevant sense

for the purposes of that Act. hotwithstanding the filing by the respondent of a notice of objection to competency, it 1s agreed

by all parties that the questions raised by that objection and

PER RE ELLIO HE IEE LE TELE POT AE TEN PIE TIE A AE OEE TEE oy EIEIO ENA ELL STE OE, EP TAGE A et '

those involved in the application are in substance the same.

If it were not for the reference to sub-s. 105AB (1) in

the Board's determination of 7 Scptember 1976 it would, I think,

be plain that it extended to both broadcasting and television stations and thus constituted a determination under each of ~ sub-ss. 105AB (1) and (2). It was not submitted that those sub-sections necessarily reguired the making of separate determinations for the purposes of each sub-section. Nor do l

determinetion of the Board of the words "...for the purposes of

the provisions of section 105AB (1) of the Act." This reference

The document which was before the Board on 7 September 1976 and which I cited earlier concluded with a recommendation to the Board manifestly intended to apply to areas to be served by broadcasting stations and by television stations. The Minute of the Board's own deliberations, when viewed as a whole, establishes to my satisfaction that the Board intended to make determinations of areas appropriate to be served by metropolitan broadcasting stations and by metropolitan television stations notwithstanding the reference to sub-s. 105AB (1). It would be

extraordinary if the position were otherwise for it would then

necessarily follow that the Board, although conscious of the

necessity to make a determination of the relevant area to be

served by metropolitan television stations in New South hales,

for no apparent reason (nor was any suggested in argument) did

As to the later determination dated 21 May 1980 of the then Minister for Post and Telecommunications, 1n my opinion it waS a variation by the him of the earlier determination of the Board. This conclusion 1s subject to considering one further submission made by the applicants namely, that the Minister's power under sub-s. 1054B (3) as limited to varying a determination of the Minister under either of the two immediately preceding sub-sections and not that of his predecessor namely, the Board. The applicants relied upon the fact that the power to make a determination under either of sub-ss. 105AB (1) or (2) and to vary such a determination under sub-s. 105AB (3) is in each case vested in the Minister. There may have been some force in this argument if sub-s. (3) in terms was lamited to empowering the Minister to vary his own determination under sub-ss. (1) or (2). But it 1s not so limited. lt provides that the Minister may vary a determination "under sub-section (1) or (2)". In my

Opinion, this power extends to the variation of a determination

made by the Board before the Minister was substituted for it as

CEN MELE PARAS 8 AION TTS A BN ENE EN TEN ERAS RD, Herre USF aa Seat yk kenan

(a) that on 7 September 1976 the Board determined the

be served by the metropolitan television stations in that State being an area that included Sydney;

(b) that by the determination dated 21 May 1980 and published in the Gazette on 10 June 1960 the then Minister for Post and 'ZIclecommunications varied the Board's determination of 7 September 1976 by determining the area in New South wales appropriate to be served by the metropolitan

Normally costs would follow the event. But the terms of

the two determinations in question have given rise to doubts as to their true meaning. The concern of the applicants to put this doubt to rest by a binding Getermination of this Court 1s

understandable. Indeed, counsel for the applicants said that the

primary concern of the applicants was to establish with certainty

the meaning and effect of the two determinations rather than to

contend for a particular construction or result. As the

TSA SIP PS TERT TEL SER TST ERI TYNE IMS BPE TEE EEE, ELIOT POLES IEE Ae GY TEP TEN PNAS ES STEHT FE elon c ee

ramifications of the questrons raised in this case extend beyond

the interests of the applicants into the domain of public

interest 1t was prudent that the questions be submitted for

judicial determination. In these circumstances I would make no

1 certify that this and the "TEAS (10) Preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Lockhart. ne