//
[1993] FCA 301
General information, not legal advice.
Federal Court of Australia
1993-06-25
Original judgment source is linked above.
Broadcasting - Broadcasting Services Act 1992 - commercial radio broadcasting licence - control and ownership provisions - whether statutory code - whether inconsistent with merger provisions of Trade Practices Act 1974 - whether exclude application of ss.45 and 50 of Trade Practices Act - policy and purpose of Broadcasting Services Act and Trade Practices Act - extrinsic materials - statutory implication.
Statutory Interpretation - inconsistency - between earlier and later statutes of same legislature - implication - tests for - citation of statute - implied reference to later amendments.
R v. Brislan; Ex parte Williams [1935] HCA 78; (1935) 54 CLR 262
Butler v Attorney General (Victoria) [1961] HCA 32; (1961) 106 CLR 268
Jones v. The Commonwealth (No. 2) [1965] HCA 6; (1965) 112 CLR 206
Johnston v Egg Marketing Board of New South Wales [1965] HCA 40; (1965) 112 CLR 343
Herald and Weekly Times Ltd v. The Commonwealth [1966] HCA 78; (1966) 115 CLR 418
R v. Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45
Commercial Radio Coffs Harbour Ltd v Fuller [1986] HCA 42; (1986) 161 CLR 47
State of South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161
Associated Press v. United States [1945] USSC 133; (1945) 326 US 1
United States v. Radio Corporation of America [1959] USSC 36; (1959) 358 US 334
National Broadcasting Co. v. United States [1943] USSC 100; 319 US 190
Advanced Hair Studio Pty Ltd v. TVW Enterprises Limited (1987) 18 FCR 1
Radio 2UE Sydney Pty Ltd v. Stereo FM Pty Ltd [1983] FCA 140; (1983) 68 FLR 70
Re Queensland Co-Operative Milling Association Ltd (1976) 25 FLR 169
Salomon v. Salomon (1897) AC 22
Thompson v. Goold (1910) AC 409
Willows v Lewis (Inspector of Taxes) (1981) 125 Sol Jo 792
BP Refinery (Westernport) Pty Ltd v. Shire of Hastings [1977] HCA 40; (1977) 16 ALR 363
Dallikavak v. Minister for Immigration and Ethnic Affairs (1985) 61 ALR 471
Chorlton v. Lings (1868) LR 4 CP 374
Cooper Brookes (Wollongong) Pty Ltd v. Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297
Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd [1920] HCA 54; (1920) 28 CLR 129
Sloane v. Minister for Immigration and Ethnic Affairs [1992] FCA 414; (1992) 37 FCR 429
Mr. Paul Anastassiou
Solicitors for the Appellant: Mallesons Stephen Jaques
Counsel for the Respondent: Mr. Charles Sweeney QC
with Mr. Charles Scerri
Solicitors for the Repsondent: Australian Government
Solicitor
I. The appeal be dismissed.
II. the appellant pay the respondent's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
GUMMOW J With exceptions not here material, the Broadcasting Act 1942 ("the 1942 Act") was repealed by s. 28 of the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992 ("the Consequential Amendments Act"). On 5 October 1992, the Consequential Amendments Act came into force, pursuant to s. 2 thereof, concurrently with the Broadcasting Services Act 1992 ("the Services Act").
2. Section 30 of the Consequential Amendments Act provides that the statutes specified in Schedule 2 are amended as therein set out. One such statute is the Trade Practices Act 1974 ("the TP Act"). Section 65A of the TP Act places important limitations upon the application of s. 52 and certain other provisions of Part V to the prescribed publication of matter by a "prescribed information provider". Sub-section 65A (3) provided definitions of terms used in the section, and in turn referred to expressions used in the 1942 Act. Schedule 2 of the Consequential Amendments Act amended sub-s. 65A (3) of the TP Act so as to adjust the operation of s. 65A to the new system created by the Services Act. The amending statute is to be construed with the TP Act and as part thereof: Acts Interpretation Act 1901 ("the Interpretation Act") s. 15. The operation of the TP Act was amended in no other respect by the Consequential Amendments Act.
3. Nevertheless, the appellant contends that the Services Act itself operates so as to modify in important respects what otherwise would be the operation of Part IV of the TP Act. It sought unsuccessfully before a Judge of this Court (Northrop J) a declaration, pursuant to the jurisdiction conferred on this Court by s. 163A of the TP Act, to give effect to its view of this limited operation of the TP Act. The declaration was one that:
"An acquisition of control of a commercial radio
broadcasting licence where such acquisition is
not prohibited by Section 54 of the Broadcasting
Services Act 1992 does not contravene Section 45
(2) (a) (ii), 45 (2) (b) (ii) or 50 of the Trade
Practices Act 1974."
4. Section 50 of the TP Act was itself amended by s. 6 of the Trade Practices Legislation Amendment Act 1992 ("the TP Amendment Act") with effect 21 January 1993. Section 6 of the latter statute is one of the provisions described in sub-s. 21 (4) thereof as the "merger amendments". In its present form, sub-s. 50 (1) of the TP Act forbids a corporation from directly or indirectly acquiring shares in the capital of a body corporate, or acquiring any assets of a person, if the acquisition would have the effect or be likely to have the effect of substantially lessening competition in a market. The term "market" means a substantial market for goods or services in Australia, in a State or in a Territory: sub-s. 50 (6). Sections 14, 15 and 16 of the TP Amendment Act amend the provisions which deal with authorisations by the Trade Practices Commission (the present respondent) and are found in ss. 88, 89 and 90 of the TP Act.
5. The other provision of the TP Act in respect of the operation of which the appellant seeks declaratory relief, is sub-s. 45 (2). In particular, sub-paras. (a) (ii) and (b) (ii) forbid a corporation to make a contract or arrangement or to arrive at an understanding or to give effect thereto if a provision thereof has the purpose or is likely to have the effect of substantially lessening competition.
6. The declaration sought by the appellant refers to s. 54 of the Services Act. This states:
"54. A person must not be in a position to exercise control
of more than 2 commercial radio broadcasting licences
in the same licence area."
The fundamental proposition advanced by the appellant is that if the acquisition of control of a commercial radio broadcasting licence is not prohibited by s. 54, that acquisition does not contravene s. 50 or paras. 45 (2) (a) (ii) and (b) (ii) of the TP Act. Section 54 appears in Part 5 of the Services Act. The appellant submits that Parliament intended that this Part should constitute a "comprehensive and exclusive code governing the ownership and control of commercial licences, including commercial radio broadcasting licences". It is further submitted that whilst the means of regulation and the objectives and policy considerations that determine the permissible limits of control under Part 5 of the Services Act differ fundamentally from those in Part IV of the TP Act, Part 5 of the Services Act, being an exclusive code, covers the relevant "field" to the exclusion of what otherwise would be the operation of Part IV.
7. The appellant further, and in the alternative, relies upon what it submits is the operation of s. 77 of the Services Act. This is also contained in Part V. It states:
"77. The provisions of this Part have effect
notwithstanding the Trade Practices Act 1974."
It will be noted that s. 77 is directed only to Part 5 of the Services Act. The submission is that only 2 constructions can possibly be given to s. 77. The first is said to be that s. 77 "ousts" the TP Act from any application to the subject matter of Part 5, being the arrangement, achievement and exercise of ownership and control within the limits prescribed by Part 5. The second is that s. 77 manifests an intention that the TP Act should not apply "to the extent that its provisions are inconsistent with those of Part 5 or would produce a result different from or inconsistent with that produced by the provisions of Part 5"; the result is said to be that to the extent that Part 5 permits a level of ownership and control of commercial broadcasting licences that would be "inconsistent" with the TP Act, that statute is not to apply.
8. The appellant contends that (i) one or other of these constructions must be adopted because "otherwise no sensible meaning can be given to s. 77 and the intention of the legislature would be defeated", and (ii) on either construction, s. 77 marks out and removes an obstacle to what is said to be the untrammelled operation of Part 5 as "an exclusive code governing the ownership and control of commercial licences".
9. As will become apparent, I do not accept that no other construction may be, and should be, given to ss. 77.
10. The appellant is the licensee of 6 commercial radio broadcasting licences issued under the 1942 Act. By reason of the operation of transitional provisions in Part 2 of the Consequential Amendments Act these are to be treated as licences under the Services Act. The 6 licences are within 5 licence areas, in Sydney, Melbourne, Brisbane, Adelaide and Canberra. FM Australia Limited ("FM Australia"), to which receivers and managers have been appointed, is the licensee of 4 commercial radio broadcasting licences in licence areas in Sydney, Melbourne, Brisbane and Perth. Three of these licences are within licence areas, in Sydney, Melbourne and Brisbane, within the which the appellant is an existing licensee.
11. There were discussions between FM Australia and the appellant concerning the acquisition by the appellant of the 4 licences held by FM Australia. The proposed method of acquisition was not disclosed in the evidence. It may have been by way of transfer of the licence. Transactions of that description are provided for by s. 48 in Part 4 of the Services Act. The proposed acquisition may have been by way of the acquisition of shares or by some other method. In March 1993, the appellant informed the respondent of its proposal to acquire the licences from FM Australia. The respondent took the position that the TP Act did apply to the proposed acquisition and notified the appellant that it intended to commence investigations for the purpose, in particular, of deciding whether the proposed acquisition would contravene s. 50 of the TP Act. When notified of this decision of the respondent, FM Australia declined to continue negotiations with the appellant. The appellant then commenced the present proceeding under s. 163A of the TP Act. As I have indicated, the primary Judge refused the relief sought.
12. Before further considering the submissions for the appellant, it is necessary to consider the structure and certain provisions of the Services Act.
13. There is a penalty of $200,000 for the provision of a commercial radio broadcasting licence by a person who does not have a licence to provide that service (s. 133). That person will be guilty of a separate offence in respect of each day during which the breach continues (s. 136). Upon this and other prohibitions in relation to commercial television broadcasting services, subscription television broadcasting services and community radio and television broadcasting services, there is erected the licensing system set out in the Services Act. In this respect, with the erection of a licensing system which lifts what otherwise is a prohibition, the present legislation broadly resembles the 1942 Act. The licensing system contained in the 1942 Act was analysed by Wilson, Deane and Dawson JJ in Commercial Radio Coffs Harbour Ltd v Fuller [1986] HCA 42; (1986) 161 CLR 47 at 53-4. Their Honours continued (at 56):
"In the present case, our construction of the
Commonwealth Act leads us to conclude that it
does not purport to state exclusively or
exhaustively the law with which the operation of
a commercial broadcasting station must comply.
The Act prohibits broadcasting without a
licence. The prohibition is removed upon the
grant of a licence, subject to certain
conditions. Failure to comply with the
conditions may result in a revocation or
suspension of the licence thereby reinstating
the prohibition. The licence confers on the
grantee a permission to broadcast. There is
nothing in the Act which suggests that it
confers an absolute right or positive authority
to broadcast so that the grantee, because he has
a licence, is immune or exempt from compliance
with State laws. On the contrary, in
concentrating on the technical efficiency and
quality of broadcasting services, the Act leaves
room for the operation of laws, both State and
Commonwealth, dealing with other matters
relevant to the operation of such services."
14. As counsel for the respondent pointed out, the Commonwealth laws which operated concurrently with the 1942 Act included the TP Act, in particular Part IV thereof; see, for example, Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd [1983] FCA 140; (1983) 68 F.LR 70, which concerned the application of ss. 45 and 45A to the combined Sydney FM rate card.
15. Part 2 (ss. 11-22) of the Services Act specifies the various categories of broadcasting services, one of which is commercial broadcasting services. Part 12 (ss. 154-167) provides for the incorporation of the Australian Broadcasting Authority ("the ABA"). Its primary functions include the provision of advice to the Minister in relation to the spectrum plan and frequency band plans under the Radiocommunications Act 1983, and the designation under that statute of bands for broadcasting services use; the allocation, renewal, suspension and cancellation of licences; the development of programme standards; the conduct of research into community attitudes on issues relating to programmes; and the collection of fees payable in respect of licences. One of the objects of the Act spelled out in s. 3 (in Part 1) is the provision of a regulatory environment which will facilitate the development of a broadcasting industry in Australia that is "efficient, competitive and responsive to audience needs" (para. 3 (b)). Another is the encouragement of diversity and control of "the more influential broadcasting services" (para. 3 (c)). The Parliament intends that different levels of regulatory control be applied across the range of broadcasting services according to the degree of influence that different types of broadcasting services are able to exert in shaping community views in Australia: sub-s. 4 (1). The Parliament also intends that broadcasting services be regulated in a manner that in the opinion of the ABA will readily accommodate technological change and enable "public interest considerations to be addressed in a way that does not impose unnecessary financial or administrative burdens on providers of broadcasting services" (para. 4 (2) (a)).
16. Part 9 (ss. 122-130) deals with the development and observance of codes of practice for programme standards. Section 130 makes clear the relationship between the existence and observance of these standards and sub-s. 51 (1) of the TP Act. Paragraph 51 (1) (a) provides that in determining whether contravention of a provision of Part IV has been committed, regard shall not be had to any act or thing that is or is of a kind "specifically authorised or approved by" an Act. Section 130 of the Services Act does not in any way modify the operation of Part IV of the TP Act. It states:
"130. Nothing in this Part is to be taken as specifically
authorising any act or thing for the purposes of
subsection 51 (1) of the Trade Practices Act 1974."
17. Part 13 (ss. 168-203) deals with information gathering by the ABA and Part 11 with complaints to the ABA under the codes of practice and complaints relating to offences or breaches of licence conditions. Part 3 (ss. 23-35) deals with such matters as the preparation of frequency allotment and licence area plans and the designation of licence areas.
18. Part 4 (ss. 36-49) provides for the determination by the ABA of a system for the allocation of licences, the classification of certain companies as unsuitable as licensees, the imposition of conditions on commercial broadcasting licences, the duration of licences and the renewal, transfer and surrender thereof.
19. The Broadcasting Services (Subscription Television Broadcasting) Amendment Act 1992 ("the Subscription Television Act") commenced on 11 December 1992. It introduced into the Services Act Part 7 (ss. 93-116C). This deals with what is popularly described as pay television. Division 1 deals with the allocation of subscription television broadcasting licences, Division 2 with the conditions of such licences, Division 3 with ownership and cross-media rules, Division 4 with offences for breaches, and Division 5 contains notification provisions. Section 116B is in similar terms to s. 130 of the Services Act. It states that nothing in Part 7 is to be taken as specifically authorising any act or thing for the purposes of sub-s. 51 (1) of the TP Act.
20. Sub-section 93 (7) prescribes that a subscription television broadcasting licence, being a satellite licence, must not be allocated under that section if the Trade Practices Commission has reported that the allocation of the licence to the applicant would, if Part IV of the TP Act applied to the allocation of the licence, constitute a contravention of that Part of that Act. In relation to other subscription television broadcasting licences, sub-s. 96 (5) provides that the ABA must not allocate such a licence if the Commission has reported that in its opinion the allocation of the licence to the applicant:
"(a) would constitute a contravention of section 50 of the
Trade Practices Act 1974 if the allocation of the
licence were the acquisition by the applicant of an
asset of a body corporate; and
(b) would not be authorised under section 88 of that Act
if the applicant had applied for such an authorisation."
21. It will be recalled that s. 50 of the TP Act in its present form, after the commencement of the TP Amendment Act on 21 January 1993, is directed to the acquisition of shares and the acquisition of the assets of persons and corporations. In its previous form, it was directed more simply to the acquisition by a corporation of any shares in the capital or any assets of a body corporate. The allocation of a licence is not an acquisition of this character. Hence, the treatment of the allocation in the manner set out above in sub-s. 96 (5) (a) of the subscription television amendment.
22. That legislation also contains s. 97. This proceeds on a similar footing. It states:
"97. (1) Before a subscription television broadcasting
licence is allocated to a person under section
93 or 96, the ABA must request the Trade
Practices Commission to provide a report under this section.
(2) The report is to advise whether, in the opinion
of the Trade Practices Commission, the
allocation of the licence to the applicant:
(a) would constitute a contravention of
section 50 of the Trade Practices Act 1974
if the allocation of the licence were the
acquisition by the applicant of an asset
of a body corporate; and
(b) would not be authorised under section 88
of that Act if the applicant had applied
for such an authorisation.
(3) For the purposes of the consideration of a
request by the Trade Practices Commission,
section 155 of the Trade Practices Act 1974
applies as if the allocation of a licence under
this Part were a matter referred to in
subsection (1) of that section."
I accept the submissions for the respondent that (i) s. 97 and its cognate provisions reflect the circumstance that the allocation of a pay television licence would not constitute the acquisition of an asset of a body corporate and therefore not enliven s. 50 of the TP Act, and (ii) nevertheless, these provisions are consistent with the view that the TP Act otherwise applies to the licensing system erected by the Services Act.
23. I turn now to consider Part 5 of the Services Act.
24. Part 5 (ss. 50-78) contains provisions which apply to the control of licensees of commercial broadcasting licences and the control of the licences themselves. As the primary Judge pointed out in his reasons for judgment, the Services Act contains no definitive meaning of the term "control", but an inclusive meaning given in sub-s. 6 (1). Unless the contrary intention appears, "control" includes:
". . . control as a result of, or by means of,
trusts, agreements, arrangements, understandings
and practices, whether or not having legal or
equitable force and whether or not based on
legal or equitable rights."
Further, Schedule 1 sets out criteria which are to be applied in deciding whether a person is in a position to exercise control of a licence, a company or a newspaper for the purposes of the statute, and also criteria to be applied in tracing the company interests of persons. The criteria contained in Schedule 1 are complex.
25. Division 2 of Part 5 is headed "Limitation on control". It comprises 2 sections, s. 53 and 54. I have set out the text of s. 54, dealing with the limitation on control of commercial radio broadcasting licences. Section 53 deals with limitation on control of commercial television broadcasting licences. It states:
"53. (1) A person must not be in a position to exercise
control of commercial television broadcasting
licences whose combined licence area populations
exceed 75% of the population of Australia.
(2) A person must not be in a position to exercise
control of more than one commercial television
broadcasting licence in the same licence area."
Division 3 is concerned with limitation on numbers of directorships, Division 4 with limitation on foreign control of television, Division 5 with what are styled "cross-media rules" and Division 6 (ss. 62-65) with notification provisions.
26. Pursuant to s. 62, a commercial broadcasting licensee must, within 3 years after the end of each financial year, give details in writing to the ABA of the persons who, to the knowledge of the licensee, were in a position to exercise control of the licence at the end of that year. Failure to comply constitutes a criminal offence incurring a pecuniary penalty. Section 63 operates when a licensee becomes aware that a person who was not in a position to exercise control of the licence is not in a position to do so, and where a person who was in a position to control the licence has ceased to be in that position. Within 7 days, the licensee must notify the ABA of that event. Again, failure constitutes a criminal offence. Section 64 also has criminal sanction attached. It operates when a person who was not in a position to exercise control of a licence becomes aware that that person is in a position to exercise such control. Within 7 days, that person must notify the ABA in writing of that position. Division 7 (ss. 66-69) is headed "Approval of temporary breaches". Division 8 ss. 70-72) is headed "Action by the ABA". I adopt the following description of Division 8 by the primary Judge.
"In essence, Division 8 provides that if the
ABA is satisfied that a person is in breach
of, among other provisions, s. 54 of the Act,
the ABA may by notice given to the person, or
if the person is not the licensee and the breach
is one that can be remedied by the licensee, the
licensee, direct the person or the licensee to
take action so that the person is no longer in
breach of that provision. The time to be
allowed for this to be done varies according to
the provisions contained in the Division. A
person who fails to comply with such a notice is
guilty of a criminal offence. It follows that a
contravention of s. 54 can form the basis for
the committing of a criminal offence."
Division 9 provides for the approval by the ABA of breach of television ownership limits in what the side-note, but not the text of s. 73 calls "small markets". (That term also appears in the side note to s. 39, which is in Part 4.)
27. I can find in these provisions of Part 5 no support for the proposition that this Part constitutes a "code" which is "comprehensive and exclusive" as to the governing of the ownership and control of commercial licences. It is true that Part 5 is concerned with a system of regulation which hinges upon the notion of "control" and this is a term of wide import. But, of course, in that respect, the Services Act does not differ in character from the 1942 Act, as exemplified by the complex provisions of Part IIIBA thereof, and the litigation engendered by those sections. No doubt the functions and powers of the ABA do not correspond precisely with those of the Australian Broadcasting Tribunal under the 1942 Act. Nevertheless, there is a broad measure of similarity. It is true also that the Services Act contains the statement of objects in s. 3 which do include the facilitation of the development of a broadcasting industry in this country which is "efficient, competitive and responsive to audience needs".
28. Nevertheless, I accept the submission for the respondent that Part 5, when read in association with the other provisions of the legislation, does not "cover the field" in the sense contended for by the appellant, in particular, to the exclusion of what otherwise would be the operation of the TP Act. In the absence of a specific provision in the legislation, in my view the holding of a licence under the Services Act does not confer immunity from other Commonwealth laws, and Part 5 does not purport to lay down the whole legislative framework within which control over the activity of broadcasting may be acquired or exercised; rather, like the statute as a whole, Part 5 operates within the setting of other laws with which the grantee of a licence will be required to comply; cf Commercial Radio Coffs Harbour Ltd v Fuller, supra at 57-8.
29. In the course of his address, counsel for the appellant accepted that exercise of control, or "conduct", is dealt with elsewhere in the broadcasting legislation and s. 77 has no application to those provisions. The distinction between ownership and power in relation to a market is elusive in competition law. What could be the rationale for construing s. 77 so as to permit an acquisition of control (with the result or likely result of market domination) by means of performance of a contract made with the purpose of substantially lessening competition (by excluding ss. 50 and 45, as the appellant submits is the case here), when to do so leaves, for example, s. 46 in operation as a provision dealing with the exercise of such control? The acquisition of control itself may have an immediate effect upon market power.
30. However, as I have indicated, the appellant also relies upon the specific terms of s. 77. To that branch of the appellant's argument I now turn. I should begin by reiterating that the text of s. 77 is:
"77. The provisions of this Part have effect
notwithstanding the Trade Practices Act 1974."
As will become apparent, much depends, in my view, upon this form of citation of the TP Act.
31. I have pointed to the absence in the Consequential Amendments Act (an appropriate place for any such provision) of any amendment to the TP Act which would directly bring about the result of limiting the operation of ss. 45 and 50 in a manner for which the appellant contends. Section 130 of the Services Act, which I have set out earlier, does have significance for the operation of sub-s. 51 (1) of the TP Act, but not in such fashion as to limit or qualify that operation. The same is true of ss. 93, 96, 97 and 116B.
32. The appellant properly conceded (as Northrop J has emphasised) that Part 5 primarily is concerned with the imposition, e.g. by s. 54, of prohibitions upon the acquisition of control of licences. It would be an odd use of language to give enhanced "effect" to a prohibition by removing other restraints imposed, inter alia, upon licences by the TP Act. Each provision of Part IV of that statute is expressed as a directive to a corporation not to engage in conduct of a particular description.
33. Section 54 of the Services Act does not confer any absolute right on a person to exercise control of either one or two commercial broadcasting licences in a licence area. I accept the submission for the respondent that s. 54 prohibits a person from exercising control of more than 2 such licences in the same licence area, with the result that if the conduct by means of which the person seeks to acquire control over a licence contravenes the TP Act, it is no answer to that contravention that the acquisition would not contravene s. 54 of the Services Act.
34. Section 1 of the Trade Practices Act is as follows:
"1. This Act may be cited as the Trade Practices Act 1974."
This method of citation is in accordance with sub-s. 6 (1) of the Acts Citation Act 1976 ("the Citation Act"). At common law the position was that where a statute (the first statute) was referred to in a later statute (the second statute) the reference to the first statute in the second statute was treated as taking the first statute in the form is stood at the date of the commencement of the second statute; subsequent amendments to the first statute were not taken into account when later construing the second statute: Pearce and Geddes "Statutory Interpretation in Australia", 3rd Ed., para. 6.19.
35. However, the situation has now radically been changed by the Interpretation Act. Section 10 thereof was inserted by s. 4 of the Citation Act. Section 10 provides:
"10. Where an Act contains a reference to a short title
that is or was provided by law for the citation of
another Act as originally enacted, or of another Act
as amended, then, except so far as the contrary
intention appears:
(a) the reference shall be construed as a reference
to that other Act as originally enacted and as
amended from time to time; and
(b) where that other Act has been repealed and
re-enacted, with or without modifications, the
reference shall be construed as including a
reference to the re-enacted Act as originally
enacted and as amended from time to time and,
where, in connexion with that reference,
particular provisions of the repealed Act are
referred to, being provisions to which
provisions of the re-enacted Act correspond, the
reference to those particular provisions shall
be construed as including a reference to those
corresponding provisions."
(Emphasis supplied)
36. Section 4 of the 1976 Act repealed the previous s. 10A. This had been added to the Interpretation Act by the Acts Interpretation Act 1916. Section 10A had stated:
"10A Where in any Act reference is made to any other Act,
and that other Act is subsequently amended, then
unless the contrary intention appears the reference
shall, from the date of the amendment, be deemed to be
to that Act as so amended."
37. In the second reading speech in the Senate upon the Bill for the 1916 statute, the Minister (Hansard, Senate, 12 May 1916, p 7878) that:
"The new section 10A proposed to be inserted in
the 1901 Act provides that references in any Act
to another Act shall, if that other Act is
afterwards amended, be deemed to be a reference
to that Act as so amended."
38. In Johnston v Egg Marketing Board of New South Wales [1965] HCA 40; (1965) 112 CLR 343 at 347, Taylor J said that it was plain that s. 10A applied only in cases where an amendment to the first Act, being that referred to in the second Act, is made subsequently in point of time to the "coming into force" of the second Act; the section did not apply where the first Act had been amended in the interval between the Royal Assent to, and the later coming into force of, the second Act. The point is now covered by the broader terms of the present s. 10.
39. The position in the United Kingdom may briefly be noted. Sub-section 20 (2) of the Interpretation Act 1978 (UK) provides:
"20 (2) Where an Act refers to an enactment, the
reference, unless the contrary intention
appears, is a reference to that enactment as
amended, and includes a reference thereto as
extended or applied, by or under any other
enactment, including any other provision of that Act."
The provision is discussed in Bennion "Statutory Interpretation" 1984, pp 426-8. The learned author points out that sub-s. 20 (2) is ambiguous on the status of subsequent amendments. The point is illustrated in the text by the following example:
"1984 Act A is passed.
1985 Act B amends Act A.
1986 Act C, which contains a
reference to Act A, is passed.
1988 Act D further amends Act A.
By virtue of s 20 (2) . . . the reference in Act
C to Act A is in say 1987 to be read as a
reference to Act A as amended by Act B. But how
is that reference to be read in say 1989? Is it
to be read as referring to Act A as amended by
Act B alone, or to Act A as amended by Acts B and D?"
Reference is then made to Willows v Lewis (Inspector of Taxes) (1981) 125 Sol Jo 792. There, Nourse J construed a provision in tax legislation, which was in similar terms to sub-s. 20 (2), as not including amendments made under any further enactment. The position in Australia is, as indicated above, clearly different, because s. 10 has the ambulatory effect discussed above.
40. Accordingly, s. 77 of the Broadcasting Services Act is to be read as if the text were:
"77 The provisions of this Part have effect
notwithstanding the Trade Practices Act 1974 as
originally enacted and as amended from time to time."
41. There is apparent no contrary intention within the meaning of s. 10. An example of such a contrary intention is to be found in the recent amendment of s. 28 of the Telecommunications Act 1991 ("the Telecommunications Act"). As originally enacted, this stated:
"28. A carrier is taken to be in a position to dominate a
market if, and only if, the carrier is taken, for the
purposes of section 50 of the Trade Practices Act 1974
to be in a position to dominate that market, or would
be so taken if the market were a market within the
meaning of that section."
As a result of Schedule 2 to the TP Amendment Act, which commenced 21 January 1993, s. 28 of the Telecommunications Act is amended so that it now reads:
"28. A carrier is taken to be in a position to dominate a
market if, and only if, the carrier is taken, for the
purposes of section 50 of the Trade Practices Act 1974
(as in force immediately before the commencement of
the Trade Practices Legislation Amendment Act 1992) to
be in a position to dominate that market, or would be
so taken if the market were a market within the
meaning of that section."
42. In construing s. 77 of the Services Act, it is helpful to dwell upon the word "notwithstanding". This is a compound of "not" and the present participle "withstanding". It is in agreement with the phrase "Trade Practices Act 1974" not with the phrase "the provisions of this Part". That is to say, s. 77 is concerned with protecting or ensconcing the operation or effect of s. 77 from what otherwise might be a subtraction from that operation or effect by reason of the operation of the TP Act, as it stood when s. 77 was enacted and as the TP Act may be amended from time to time. "Notwithstanding" means "without prevention or obstruction from or by the Trade Practices Act as originally enacted and as amended from time to time". The sense of s. 77 may be clarified by the reordering and restatement:
"The provisions of this Part have effect, the
Trade Practices Act 1974, as originally enacted
and as amended from time to time, notwithstanding."
43. This reading is consistent with the statement on p 52 of the Explanatory Memorandum of the Bill for the Services Act:
"(Clause 77 makes) it clear that this Part
overrides the Trade Practices Act 1974 wherever
it is inconsistent with that Act for the
purposes of the (ownership and control) limits
set out in this Part. The (Trade Practices Act)
continues to apply to the conduct of broadcasters."
44. One then asks what in the TP Act, as it stood when s. 77 was enacted, cut down, prevented or obstructed the operation of Part 5 of the Services Act. This, as the Explanatory Memorandum suggests, involves notions of "inconsistency". That concept is significant in the Australian legal system, at various levels and in various senses: Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532 at 544-548, Nominal Defendant v Morrison [1992] FCA 402; (1992) 37 FCR 479 at 483-4.
45. The most recent High Court authority dealing with conflict between successive laws of the one legislature is The State of South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 at 168-172. Wilson, Dawson, Toohey and Gaudron JJ there approached the question by asking whether the earlier legislation was "repugnant to" or "had been impliedly repealed by" other legislation; their Honours accepted the submission that there was "no inconsistency" because both pieces of legislation "can stand together and operate cumulatively", because "each Act has a distinct purpose, different from the other". They referred (at 171) to the statement by Fullagar J in Butler v Attorney General (Victoria) [1961] HCA 32; (1961) 106 CLR 268 at 275-6 that there was a very strong presumption that the legislature did not intend to contradict itself, but intended both Acts should operate, and that "implied repeal", total or partial, was a "comparatively rare phenomenon".
46. Nevertheless, there are passages in the High Court judgments in Butler in which the doctrine of "implied repeal" is considered in terms reminiscent of a broader "covering the field" concept, rather than by reference to repugnancy and the tighter notions implied in Tanner; see the references in Suatu supra at 547 lines 13-20. See also Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 98-99, 146-7, Mabo v The State of Queensland (1988) 166 CLR 186 at 218-9, 232-3.
47. The legislature may seek to remove doubt as to the application of the implied repeal doctrine by, in the later statute, specifically referring to its impact upon the earlier statute. An example is s. 238 of the Telecommunications Act 1991. This states:
"Sections 236 and 237 have effect for the
purposes of subsection 51 (1) of the Trade
Practices Act 1974, but do not affect by
implication the application of section 51 of
that Act otherwise than because of those sections."
See also ss. 29-32 of the Australian and Overseas Telecommunications Corporation 1991, dealing with the limited application of various laws of the Commonwealth to that corporation. Notwithstanding the reference in para. 3 (b) of the Services Act to competition and in ss. 39 and 73 to "markets", this statute (particularly Part 5) and the TP Act have distinct purposes and they should be able to stand together and operate cumulatively; cf. Commercial Radio Coffs Harbour Ltd v Fuller supra at 56-8. For example, the TP Act creates in Part VI a system of remedies which give effect to the legal norms found in Part IV and Part V, and creates private rights to damages, rescission of transactions, and the like. No specific provision was made for transitional provisions to deal with the effect upon such accrued rights of the construction of s. 77 of the Services Act for which the appellant contends.
48. In the matter of etymology, grammar and ordinary meaning, s. 77 does not purport to repeal the operation of any provision of the TP Act. Rather, it is concerned with preserving the full operation of Part 5 of the Services Act. It does so by fending off any implication which might otherwise arise that the TP Act, as amended from time to time, impliedly repeals the provisions of Part 5. For example, the later law might introduce prohibitions upon ownership which only operated at a higher threshold than that found in ss. 53 and 54. Of course, the Parliament cannot bind its successors and Part 5 must yield to later legislation. However, provisions such as s. 77, when understood in this way, give effect to and strengthen the presumption that the two legislative schemes, as in force from time to time, should continue to operate concurrently or cumulatively. Another law of the same character as s. 77 may be s. 10 of the Racial Discrimination Act 1975, in its operation upon the laws of the Commonwealth as they stand from time to time: cf Gerhardy v Brown supra, Mabo v The State of Queensland supra.
49. A plainer example is provided by s. 2 of the Canadian Statute, the Canadian Bill of Rights 1960, (Can.). Section 2 thereof stated:
"2. Every law of Canada shall, unless it is expressly
declared by an Act of the Parliament of Canada that it
shall operate notwithstanding the Canadian Bill of
Rights, shall be so construed and applied as not to
abrogate, abridge or infringe or to authorize the
abrogation, abridgment or infringement of any of the
rights or freedoms herein recognised and declared . . ."
The term "notwithstanding" here has a like meaning to that I would give it in s. 77 of the Services Act. See, as to s. 2, Regina v Drybones (1969) 9 DLR (3d) 473, Hogg "Constitutional Law of Canada", 1st Ed., 1977, pp 435-8. It operated, at least, as a rule of construction: Hogg supra at 438, 443.
50. A distinct, though related issue of interpretation, is concerned with the extent to which amendments to a statute may be used to throw light upon the meaning of legislation in its unamended form: see Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234 at 254-5, Downey v Trans Waste Pty Ltd [1991] HCA 11; (1991) 172 CLR 167 at 177-8, Interlego AG v Croner Trading Pty Ltd [1992] FCA 624; (1992) 111 ALR 577 at 611-2. The authorities suggest that in construing the earlier legislation, a later amendment may be taken into account to avoid a result which would otherwise render the amend unnecessary, futile or deficient.
51. If it matters, after the passage of the Services Act (Royal Assent 14 July 1992), the TP Amendment Act (Royal Assent 24 December 1992, commencement 21 January 1993) significantly amended, inter alia, ss. 45, 46 and 50 of the TP Act. It is apparent from the second reading speech of the Attorney-General on the Trade Practices Legislation Amendment Bill 1992 on 3 November 1992 (Hansard, House of Representatives, 3 November 1992, p 2405) that in framing the Bill many of the recommendations of the Senate Standing Committee on Legal and Constitutional Affairs ("The Cooney Committee") were embodied in the Bill. The Cooney Committee had reported in December 1991, that is to say, well before the Second Reading Speech in the Senate on 4 July 1992 upon the Bill for the Services Act. The Cooney Report is, in my view, a relevant report of a committee of a House of the Parliament which was made to that House before the time when s. 77 was enacted, and regard may be had to it pursuant to para. 15AB (2) (c) of the Interpretation Act.
FRENCH and BEAZLEY JJ The Broadcasting Services Act 1992 came into effect on 5 October 1992. By force of the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992, commercial television and radio licences issued under the former Broadcasting Act 1942 were continued as corresponding licences under the new Act. In January 1993, Austereo Ltd (Austereo) submitted an offer to the receiver and manager of FM Australia Ltd (Receiver and Manager Appointed) (FMA) to acquire four commercial radio broadcasting licences held by it in Sydney, Melbourne, Brisbane and Perth. Austereo already held six commercial radio broadcasting licences in Sydney, Melbourne, Brisbane, Adelaide and Canberra. The Trade Practices Commission, having been notified of the proposed offer, indicated that it intended to investigate the transaction to determine whether it would contravene the merger and other provisions of the Trade Practices Act 1974 relating to anti-competitive agreements. Austereo contended that the ownership and control provisions of the Broadcasting Services Act 1992 exclude the operation of the relevant sections of the Trade Practices Act. It sought a declaration to that effect. The application for the declaration was dismissed by Northrop J on 14 May 1993. Austereo has now appealed against that dismissal.
2. Austereo is the holder of six commercial radio broadcasting licences which were issued under the now repealed Broadcasting Act 1942. The licences subsist as commercial radio licences under the Broadcasting Services Act 1992 by reason of transitional legislation enacted at about the same time as that Act. The radio stations in respect of which Austereo holds its licences are:
2 DAY FM Sydney
FOX FM Melbourne
B105 FM Brisbane
SA FM Adelaide
FM 104 Canberra
2CA Canberra
3. FMA is the holder of four commercial radio licences also issued under the Broadcasting Act 1942. They are:
2MMM Sydney
3MMM Melbourne
4MMM Brisbane
96 FM Perth
The receiver and manager of FMA, Mr A.J. Love of Messrs. Ferrier Hodgson, was not appointed until March 1993. In September 1992, Austereo executives had become aware that FMA was considering options in relation to its licences and other assets. On 27 October 1992, Mr Paul Thompson, the Managing Director of Austereo, sent a letter to Mr Mark Burrows of Baring Bros. Burrows and Co. Limited (BBB) advising that Austereo was interested in the acquisition of assets of or shares in FMA and that a proposal was under preparation. On 21 December 1992 a meeting of the Board of Directors of Austereo resolved to make a bid to purchase the assets of FMA. BBB informed Austereo on 24 December 1992 that indicative bids with proposals for the reconstruction of FMA were to be submitted to it by 22 January 1993. After due diligence inquiries by preferred bidders, final offers were to be submitted by 26 February. Austereo submitted an indicative bid for the acquisition of certain assets and the assumption of liabilities of FMA on 22 January 1993. It was subsequently invited by BBB to undertake due diligence investigation of FMA between 18 and 24 February 1993. Some such inquiry was undertaken. The date for final offers was extended to 12 March 1993 and on that date Austereo's proposal was submitted to BBB. Mr Love was appointed as receiver and manager of FMA on or about 31 March 1993. On 14 April 1993 Austereo wrote to him setting out its proposal. The letter was expressed not to constitute an offer capable of acceptance. It set out certain alternatives for consideration by the receiver. The proposal was said to represent a cash settlement of $80 million to FMA's creditor banks and involved acquisition of its assets including its commercial radio licences, collection of debts for on-payment to the banks and assumption of liabilities to trade creditors, other creditors not associated with staff and the Australian Broadcasting Authority. It involved also a $70.8 million cash payment. Another option would have excluded the Perth licence for 96 FM. A third option involved a merger of FMA and Austereo with the public listing of the merged entity.
4. In the meantime Austereo's solicitors had had discussions with the Chairman of the Trade Practices Commission and one of his officers, Mr Richard Fitzpatrick. Among the issues discussed was the question whether the Commission had power to act under the merger provisions of the Trade Practices Act 1974 in relation to the acquisition of controlling interests in commercial radio licences where such acquisition complied with the requirements of Part V of the Broadcasting Services Act 1992. Austereo's solicitors submitted to the Commission that the effect of s.77 of the Broadcasting Services Act 1992 was that the Trade Practices Act 1974, and in particular s.50, had no application to an acquisition of control over commercial radio licences where such control conformed with s.54 of the Broadcasting Services Act 1992. The Commission took advice on these submissions and on 16 April the Chairman informed Austereo's solicitors that their submissions were not accepted. On 20 April the General Manager of the Commission wrote to Austereo's solicitors in the following terms:
"I refer to discussions and correspondence in relation
to the proposed bid by Austereo Limited for FM
Australia Limited and in particular the application of
the merger provisions of the Trade Practices Act to
such an acquisition. I also thank you for your letter
of 19 April 1993 forwarding the opinion by Dyson
Heydon QC. As you are aware there are already a
number of opinions by Senior Counsel in relation to this issue.
The Commission has considered the various opinions and
is of the view that Section 50 of the Trade Practices
Act applies to the proposed acquisition and that
jurisdiction of the Trade Practices Act is not
excluded by the provisions of the Broadcasting
Services Act 1992. That being the case the Commission
will now be commencing market place inquiries to
ascertain whether or not the proposed acquisition has
the effect to or is likely to have the effect of
substantially lessening competition in a relevant market.
A copy of this letter has been sent to Mr Love of Ferrier Hodgson."
5. In a press release issued on the same day, the Commission indicated that it had not formed a view on whether any particular bid would be likely to breach the Trade Practices Act. It went on:
""The commission's view that it does have jurisdiction
to intervene in the radio industry is based on a
careful reading of the Broadcasting Services Act.
This Act allows a broadcaster to hold no more than 2
radio licences in a particular area. Despite some
disclaimers about the application of the Trade
Practices Act, the Broadcasting Services Act does not
appear to authorise the holding of licences in a
number of areas simultaneously where the aggregrate
(sic) effect of those licences would be to
substantially lessen competition in a market",
Professor Fels said.
"In addition, the commission is inclined to the view
that s.54 of the Broadcasting Services Act means that
a person may not hold more than two broadcasting
licences in the same license area even if the
possession of more licences would still not contravene
the merger provisions of the Trade Practices Act.""
6. Also on 20 April, Mr Love wrote to Austereo advising that he had been made aware of the Commission's intention to commence market inquiries concerning proposed transactions in relation to the FMA assets. His letter continued:
"As discussed with you previously, there are a number
of issues relevant to Austereo's ability to complete a
transaction with FMAL. The Trade Practices matter is
one of these. I reiterate my comments to Mr Paul
Thompson on 15 April 1993 in that I do not believe
that further discussions on these other matters can
proceed at this stage until the Trade Practices
Commission matter is resolved.
Further, I intend to continue with the sale process
expeditiously. Together with Barings, my advisers, I
have already had further discussions with certain of
the parties in order to seek the most advantageous
offer for the banking syndicate."
7. On 22 April 1993, Austereo commenced proceedings in this Court seeking declarations under s.163A of the Trade Practices Act 1974 to the effect that Part IV of the Trade Practices Act does not apply to the acquisition by Austereo of the FMA licences. Alternatively, a declaration was sought that s.54 of the Broadcasting Services Act 1992 prevailed over any inconsistent provisions of the Trade Practices Act relevant to such an acquisition. The matter came on for hearing before Northrop J on 29 April and on 14 May his Honour dismissed the application with costs. Austereo appeals from his Honour's decision. The declaration now sought by Austereo reflects the amended form of declaration sought before his Honour, namely:
"A declaration pursuant to Sub-section 163A 1(a) of the
Trade Practices Act 1974 that an acquisition of
control of a commercial radio broadcasting licence
where such acquisition is not prohibited by Section 54
of the Broadcasting Services Act 1992 does not
contravene Sections 45(2)(a)(ii), 45(2)(b)(ii) or 50
of the Trade Practices Act 1974."
8. The Broadcasting Services Act 1992 sets out in s.3 a statement of its objects. These include:
"(a) to promote the availability to audiences throughout
Australia of a diverse range of radio and television
services offering entertainment, education and
information; and
(b) to provide a regulatory environment that will facilitate
the development of a broadcasting industry in Australia
that is efficient, competitive and responsive to audience
needs; and
(c) to encourage diversity in control of the more influential
broadcasting services."
Other objects relate to control by Australians of the more influential broadcasting services, the development of a sense of Australian identity, character and cultural diversity, high quality and innovative programming, fair and accurate coverage of matters of public interest and appropriate coverage of significant local matters, respect for community standards, provision for dealing with complaints and the protection of children from harmful program material. A "regulatory policy", to be applied by the Australian Broadcasting Authority (ABA) established under the Act, is declared in s.4. It is in the following terms:
"4(1) The Parliament intends that different levels of
regulatory control be applied across the range of
broadcasting services according to the degree of
influence that different types of broadcasting
services are able to exert in shaping community views
in Australia.
(2) The Parliament also intends that broadcasting
services in Australia be regulated in a manner that,
in the opinion of the ABA:
(a) enables public interest considerations to
be addressed in a way that does not impose
unnecessary financial and administrative
burdens on providers of broadcasting services; and
(b) will readily accommodate technological change; and
(c) encourages:
(i) the development of broadcasting technologies
and their application; and
(ii) the provision of services made practicable by those
technologies to the Australian community."
It is clear that the objects and the policy are intended to be taken into account in the construction of the Act. The opening words of s.5, which defines the role of the Australian Broadcasting Authority, link that role to the purpose of achieving "the objects of this Act in a way that is consistent with the regulatory policy referred to in section 4...". The regulatory policy encompasses therefore all of the objects including "the development of a broadcasting industry in Australia that is efficient, competitive and responsive to audience needs". (s.3(b))
9. The Australian Broadcasting Authority is established as a body corporate by s.154 of the Act. By s.5 of the Act and in order to achieve the objects of the Act in accordance with the regulatory policy, the Parliament:
"(a) charges the ABA with responsibility for
monitoring the broadcasting industry; and
(b) confers on the ABA a range of functions
and powers that are to be used in a manner
that, in the opinion of the ABA, will:
(i) produce regulatory arrangements that are
stable and predictable; and
(ii) deal effectively with breaches of the rules
established by this Act."
10. Part 12 of the Act (ss.154-167) provides for the establishment and constitution of the ABA. Its "primary functions" are defined in s.158 and include the provision of advice to the Minister in relation to the spectrum plan and frequency band plans under the Radiocommunications Act 1983 and the designation under that Act of bands for broadcasting services use. They extend to the planning of availability of segments of the broadcasting services band on an area basis, the allocation, renewal, suspension and cancellation of licences and the design and administration of price-based systems for the allocation of commercial television broadcasting licences and radio broadcasting licences. The ABA has such additional functions as are conferred on it by the Broadcasting Services Act 1992 or any other Act (s.159). It is required to perform its functions in a manner consistent with the objects and the regulatory policy of the Act, any general policies of the Government notified by the Minister under s.161, directions given by the Minister in accordance with the Act and Australia's obligations under relevant conventions and agreements (s.160). There is provision for the Minister to notify the ABA of general policies of the government and to give directions of a general nature to the ABA as to the performance of its functions (ss. 161 and 162). Except as otherwise provided, the ABA is not subject to direction by or on behalf of the Commonwealth. The Act, by s.9, binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory. The Act also extends to the external Territories. (s.10)
11. Part 2 of the Act creates various categories of "broadcasting services". That term is defined in s.6 as "a service that delivers television programs or radio programs to persons having equipment appropriate for receiving that service, whether the delivery uses the radiofrequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means...". There follow exclusions which are not relevant for present purposes. One of the categories of broadcasting services created by Part 2 of the Act is the commercial broadcasting services. This category is defined in s.14:
"14. Commercial broadcasting services are broadcasting services:
(a) That provide programs that, when
considered in the context of the service
being provided, appear to be intended to
appeal to the general public; and
(b) that provide programs that:
(i) are able to be received by commonly available
equipment; and
(ii) are made available free to the general public; and
(c) that are usually funded by advertising revenue; and
(d) that are operated for profit or as part of
a profit-making enterprise; and
(e) that comply with any determinations or
clarifications under s.19 in relation to
commercial broadcasting services."
Commercial broadcasting services require individual licences (s.12(1)). The ABA may determine criteria for the definition of commercial broadcasting services in addition to those specified in s.14 and may clarify the criteria specified in that section for the purpose of distinguishing between categories of broadcasting services (s.19(1)). Different criteria or clarifications may be made for radio services and television services (s.19(2)). In this respect the ABA may be given ministerial directions which it must observe (s.19(3)). Determinations and clarifications under s.19 are subject to parliamentary disallowance as disallowable instruments for the purposes of s.46A of the Acts Interpretation Act 1901 (s.20).
12. Part 3 of the Act relates to the planning of broadcasting services bands. In discharging its planning function the ABA is bound by the requirements of s.23 which provides:
"23. In performing functions under this Part, the ABA
is to promote the objects of this Act including the
economic and efficient use of the radiofrequency
spectrum, and is to have regard to:
(a) demographics; and
(b) social and economic characteristics within
the licence area, within neighbouring
licence areas and within Australia generally; and
(c) the number of existing broadcasting
services and the demand for new
broadcasting services within the licence
area, within neighbouring licence areas
and within Australia generally; and
(d) developments in technology; and
(e) technical restraints relating to the
delivery or reception of broadcasting services; and
(f) the demand for radiofrequency spectrum for
services other than broadcasting services; and
(g) such other matters as the ABA considers relevant."
Priorities as between particular areas of Australia and different parts of the broadcasting services bands are to be determined by the ABA by notice in writing before preparation of frequency allotment plans (s.24). Where the Minister has assigned a part of the radiofrequency spectrum to the ABA for planning under the Radiocommunications Act 1983, the ABA is required to prepare a frequency allotment plan (s.25). The frequency allotment plan must "determine the number of channels that are to be available in particular areas of Australia to provide broadcasting services using that part of the radiofrequency spectrum" (s.25(1)).
13. Section 26 provides for the preparation of "licence area plans", consistent with the relevant frequency allotment plans. Licence area plans determine the number and characteristics, including technical specifications, of broadcasting services that are to be available in particular areas of Australia with the use of the broadcasting services bands. Frequency allotment plans and licence area plans may be varied in writing. The designation of licence areas is covered by s.29, which provides:
"29(1) Before allocating a new commercial television
broadcasting licence, commercial radio broadcasting
licence or community broadcasting licence that is a
broadcasting services bands licence, the ABA is to
designate one of the areas referred to in section 26
as the licence area of the licence.
(2) If the ABA varies a licence area plan, the ABA
may vary the designation of the relevant licence areas."
The population of a licence area is determined by the ABA which is required to express that population as a percentage of the population of Australia (s.30). The Minister is empowered by s.31 to notify the ABA that capacity in the broadcasting services bands is to be reserved for a specified number of national broadcasting services and community broadcasting services. Such notice must not affect the provision of services in accordance with a licence already allocated by the ABA under the Act or in accordance with a class licence. The ABA is prohibited from allocating a licence or determining a class licence that would allow the provision of broadcasting services other than national or community broadcasting services which would make use of reserved capacity in the broadcasting service bands (s.31). An exception, allowing for temporary use of parts of the radiofrequency spectrum, is provided by s.34.
14. Part 4 of the Act is entitled "Commercial Television Broadcasting Licences and Commercial Radio Broadcasting Licences". It deals primarily with the allocation of licences in licence areas by the ABA. It is not otherwise concerned with the acquisition of licence rights except to the extent that a licensee is permitted to transfer a licence to another (s.48). Section 36 requires the ABA to determine a price-based system for the allocation of commercial television and radio broadcasting licences that are broadcasting services bands licences. A broadcasting services band licence is defined in s.6(1) as a commercial television or radio licence or a community broadcasting licence that uses the broadcasting services bands. These bands are defined as that part of the radiofrequency spectrum designated under the Radiocommunications Act 1983 as being primarily for broadcasting purposes and that is assigned by the Minister under that Act to the ABA for planning. The ABA is subject to specific directions from the Minister for the purpose of the determination of a price-based system for allocation (s.36(2)).
15. A licence is not to be allocated to an applicant which is not a company formed in Australia or an external Territory and which has a share capital (s.37(1)). Nor is a licence to be allotted to a company if this would lead to a significant risk of an offence against the Act or the regulations or a breach of the conditions of the licence (s.37(1)(b) and s.41(2)). Before allocating commercial television or radio broadcasting licences that are broadcasting services bands licences, the ABA is required to advertise for applications for licences of that kind (s.38(1)).
16. Section 39 is entitled "Additional commercial radio licences in single markets". Sub-section 39(1) provides:
"39(1) If:
(a) there is only one commercial radio
broadcasting licensee providing services
in a licence area; and
(b) at least 2 other commercial radio
broadcasting licences that are
broadcasting services bands licences are
available for allocation in the licence area; and
(c) the licensee requests the ABA, in writing,
to allocate another commercial radio
broadcasting licence that is a broadcasting
services bands licence to the licensee;
the ABA must, subject to section 37, allocate an
additional licence to the applicant."
The section also contains provisions for the payment of a fee to cover the costs of the ABA in allocating the additional licence (s.39(2)). Licences allocated under that section carry a condition that the licensee will continue to provide services under both the primary and secondary licences for a period of two years after allocation. Where more than thirty per cent of the licence area population is attributable to an area of overlap with another licence area, then both can be treated as one for the purposes of the section (s.39(4)). A company is a suitable licensee if the ABA has not decided that s.41(2) applies to the company (s.41(1)). In assessing the risk of an offence against the Act or a breach of licence conditions the ABA is required to take into account various factors which may be classed generally as relating to the corporate good character of the company (s.41(3)).
17. Commercial radio broadcasting licences are subject to conditions which are set out in Part 4 of Schedule 2 to the Act and such other conditions as are imposed by the ABA under s.43 (s.42). Conditions to be imposed may require the licensee to comply with a code of practice that is applicable to that licensee (s.44(2)(a)). Subject to Part 10 of the Act which relates to remedies for breaches of licensing conditions, commercial television and radio licences remain in force for five years. The ABA may renew licences upon application (s.46) and, unless it decides that s.41(2) applies to the licensee, it must renew the licence for a period of five years (s.47). Transfer and surrender of licences is dealt with in ss.48 and 49. Section 48 provides:
"48. A commercial television broadcasting licensee or
a commercial radio broadcasting licensee may transfer
the licence to another person."
According to its terms the section authorises a licensee to transfer a licence. It does not explicitly authorise acquisition by any person or class of persons.
18. Part 5 of the Act, which is critical to these proceedings, is entitled "Control of Commercial Broadcasting Licences". It comprises ss.50 to 78 inclusive. Division 1, entitled "Preliminary", commences at s.50 which, for the purposes of Part 5, attributes to a company the knowledge of each of its directors, its chief executive and its secretary. Section 51 applies the rules in Part 5 to two licence areas with a population overlap in excess of thirty per cent of the population of one of them as if the two licence areas were one. The limiting case in which one licence area is entirely subsumed within another is treated in the same way. Where there is a change of a licence area population or the population of Australia as determined by the ABA, a person is not in breach of provisions relating to licence area population limits merely by virtue of the change (s.52).
19. Division 2 concerns limitations on control of commercial television and radio broadcasting licences. It comprises ss.53 and 54. The latter section relates to commercial radio broadcasting licences:
"54. A person must not be in a position to exercise
control of more than 2 commercial radio broadcasting
licences in the same licence area."
Division 3 limits the number of directorships that may be held by one person in companies in a position to control commercial television and radio licences. Section 56 in substance prohibits a person from holding directorships in one or more companies which are in a position to exercise control of more than two commercial radio licences in the same area. Foreign control and directorships of commercial television broadcasting licences are limited in Division 4 by ss. 57 and 58. Division 5 deals with the cross-media rules to prevent common ownership or control of newspapers, television and radio licences in the same area. Division 6 (ss. 62-65) provides for notification by licensees of the persons in a position to exercise control of the licence and who are directors of the licensees from time to time. There is also an obligation on a person who is in a position to exercise control of a licence to notify the ABA within seven days after becoming aware of that position. Persons in control of commercial television licences must, within three months after the end of each financial year, give to the ABA details of any company interests in newspapers associated with the licence area of the licence.
20. Division 7 (ss. 66 to 69) establishes a mechanism for approval by the ABA of transactions that would otherwise constitute breaches of provisions of Divisions 2, 3 or 5. Section 66 imposes penalties for transactions entered into which are in breach of provisions of those Divisions. A person may, however, apply to the ABA before such a transaction takes place for a temporary approval of the breach. Sub-section 67(4) authorises the ABA by notice to grant the relevant approval. The period specified in the notice must be one of six months, one year, or two years (s.67(5)). The ABA may specify in the notice the action that it considers the person is to take so as to be no longer in breach of the relevant provision (s.67(6)). Section 67(7) provides for a deemed approval for a period of two years in the event that the ABA, having received an application, has not approved or refused to approve the breach within forty five days. Section 68 provides for the grant of extensions of time for compliance with a notice issued under s.67(6). A failure to comply with a s.67 notice is an offence (s.69).
21. Section 70, which is within Division 8 of Part 5, authorises the ABA to issue a notice to a person in breach of a provision of Division 2, 3, 4 or 5 directing that action be taken so that the person is no longer in breach of that provision. The period within which such action is to be taken must be one month, six months, one year or two years. (s.70(4)). If the ABA is satisfied that the breach was deliberate and flagrant the period specified must be one month (s.70(5)). The one year or two year periods are reserved for cases where the breach has occurred as a result of the actions of third parties, none of whom is an associate of the recipient of the notice (s.70(7)). There is provision for a notice given under s.70 to be extended (s.71) and for non-compliance with a s.70 notice to constitute an offence (s.72).
22. Division 9 is entitled "Special provision for small markets". It relates only to commercial television broadcasting licences and applies where there is one licensee in a licence area and where additional licences can be allocated in that area. Sub-section 73(2) provides:
"(2) If the ABA is satisfied that it is unlikely that
another person would be interested in, and likely to
be in a position to, operate another commercial
television broadcasting service in the licence area,
the ABA may, by notice in writing given to the
licensee, give the licensee permission to operate a
second service in the licence area for a period of not
more than 5 years specified in the notice."
The period allowed under sub-s.73(2) may be extended to a further five year period if there are no other prospective licensees at the end of the first period (s.73(3)). While a permission under s.73 is in force, the service to which it relates and the other like service are, for the purposes of Part 5, to be taken to be one service provided under the one licence (s.73(5)).
23. Division 10 is entitled "Prior opinions by the ABA". It establishes, by s.74, a mechanism for an opinion to be given by the ABA on the question whether or not a person is or would be, in the event of a given transaction, in a position to exercise control of a commercial television broadcasting licence, a commercial radio broadcasting licence, a satellite subscription television broadcasting licence, a newspaper or a company. Section 74(5) provides:
"(5) If the ABA has given an opinion under this
section to a person that the person is not in a
position to exercise control of a licence or
newspaper, neither the ABA nor any other Government
agency may, while the circumstances relating to the
applicant and the licence, a newspaper or a company
remain substantially the same as those advised to the
ABA in relation to the application for the opinion,
take any action against the person under this Act on
the basis that the person is in a position to exercise
control of the licence, newspaper or company."
24. Division 11 headed "Miscellaneous" provides for a Register of Division 6 notifications, s.67 approvals, s.68 extensions, s.70 notices, s.71 extensions and s.73 approvals (s.75). Sections 76, 77, and 78 relate generally to the operation of Part 5. Section 77 is central to the present litigation. It provides:
"77. The provisions of this Part have effect
notwithstanding the Trade Practices Act 1974."
25. Parts 6 and 8 deal with Community Broadcasting Licences and Subscription Broadcasting and Narrowcasting Class Licences. Part 9 relates to Program Standards and provides for the ABA to determine standards to be observed by commercial and community television broadcasting licensees (s.122). There is provision also for the development of codes of practice by radio and television industry groups in consultation with the ABA (s.123) and for the maintenance of a Register of such codes by the ABA (s.124). Section 130 relates specifically to the application of the Trade Practices Act 1974:
"130. Nothing in this Part is to be taken as
specifically authorising any act or thing for the
purposes of subsection 51(1) of the Trade Practices Act 1974."
Part 10 provides for "Remedies for Breaches of Licensing Provisions" and Part 11 for "Complaints to the ABA". Part 12 has been outlined earlier. Part 13 confers various investigative, information gathering and reporting powers on the ABA. In Part 14 provision is made for appeals to the Administrative Appeals Tribunal from various classes of ABA decision. Part 15 contains miscellaneous provisions not relevant for present purposes.
26. Part 7 of the Act, relating to subscription television broadcasting services was included in the Broadcasting Services Bill 1992 but not in the Act as passed. It was eventually introduced into the Act by the Broadcasting Services (Subscription Television Broadcasting) Amendment Act 1992. It contains special provisions relating to the application of the Trade Practices Act 1974 to that Part. A subscription television broadcasting licence must not be allocated under s.93 if the Trade Practices Commission has reported, within 45 days of being requested to provide such a report, that in its opinion the allocation of the licence would, if Part IV of the Trade Practices Act 1974 applied to the allocation, constitute a contravention of Part IV (s.93(7)). Under s.96 the ABA may allocate subscription television broadcasting licences other than licences under s.93. Sub-section 96(5) provides:
"(5) The ABA must not allocate a subscription
television broadcasting licence under this section if
the Trade Practices Commission has reported, within 30
days after being requested for a report under section
97, that, in the opinion of the Trade Practices
Commission, the allocation of the licence to the applicant:
(a) would constitute a contravention of
section 50 of the Trade Practices Act 1974
if the allocation of the licence were the
acquisition by the applicant of an asset
of a body corporate; and
(b) would not be authorised under section 88
of that Act if the applicant had applied
for such an authorisation."
There is provision in s.97 for a report to be provided by the Trade Practices Commission on the question whether allocation would constitute a notional contravention of s.50 and would not be authorised under s.88. And in s.116B it is provided that nothing in Part 7 is to be taken as specifically authorising any act or thing for the purposes of s.51(1) of the Trade Practices Act 1974. It is to be noted that in the Broadcasting Services Bill 1992, the provisions relating to obtaining an opinion from the Trade Practices Commission were not included in that part. However, clause 11 of the Bill had provided that the provisions of Part 6 would have effect notwithstanding the Trade Practices Act 1974.
27. The licences the subject of the present proceedings are all held under the provisions of the now repealed Broadcasting Act 1942. By s.5(1)(a) of the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992:
"(a) each former commercial radio licence continues in
force as a commercial radio broadcasting licence as if
such a licence had been allocated to the holder under
Part 4 of the new Act."
The licence area of the continued licences are the same as their former service areas under the Broadcasting Act 1942. Conditions appertaining to the continued licences are the conditions imposed by the new Act and/or the ABA pursuant to its powers under that Act.
28. Also relevant for the present proceedings are the provisions of s.50 of the Trade Practices Act 1974 which, following the amendments effected by the Trade Practices Legislation Amendment Act 1992, provides, in the relevant parts:
"50(1) A corporation must not directly or indirectly:
(a) acquire shares in the capital of a body
corporate; or
(b) acquire any assets of a person;
if the acquisition would have the effect, or be likely
to have the effect, of substantially lessening
competition in a market."
Sub-section (2) applies the like prohibition to the acquisition of the shares or assets of a corporation by a person. Sub-section (3) provides:
"(3) Without limiting the matters that may be taken
into account for the purposes of subsections (1) and
(2) in determining whether the acquisition would have
the effect, or be likely to have the effect, of
substantially lessening competition in a market, the
following matters must be taken into account:
(a) the actual and potential level of import
competition in the market;
(b) the height of barriers to entry to the market;
(c) the level of concentration in the market;
(d) the degree of countervailing power in the market;
(e) the likelihood that the acquisition would
result in the acquirer being able to
significantly and sustainably increase
prices or profit margins;
(f) the extent to which substitutes are
available in the market or are likely to
be available in the market;
(g) the dynamic characteristics of the market,
including growth, innovation and product differentiation;
(h) the likelihood that the acquisition would
result in the removal from the market of a
vigorous and effective competitor;
(i) the nature and extent of vertical
integration in the market."
Sub-sections (4) and (5) relate to entry into a contract to acquire shares or assets of a body corporate or person subject to the grant of an authorisation to do so. Sub-section (6) defines "market" as:
"(A) substantial market for goods or services in
Australia, in a State or in a Territory."
Sections 45(2)(a)(ii) and 45(2)(b)(ii) of the Trade Practices Act 1974 were also referred to in the declaration sought by Austereo. Section 45(2)(a)(ii) prohibits a corporation from making a contract or arrangement or arriving at an understanding if a provision thereof has the purpose or would have or be likely to have the effect of substantially lessening competition. Section 45(2)(b)(ii) prohibits a corporation from giving effect to such a provision of a contract, arrangement or understanding. We agree, for the reasons set out in the judgment of Gummow J, that the reference to the Trade Practices Act 1974 which appears in s.77 of the Broadcasting Services Act 1992 is a reference to that Act as amended from time to time.
29. The learned trial judge began with an outline of the essential features of the Broadcasting Services Act which he described as designed to control and regulate the broadcasting industry. He observed that a person to whom a licence is allocated must be a corporation and probably a corporation for the purposes of the Trade Practices Act 1974. It seemed, he said, reasonably clear that a licence, when granted, is property. It becomes an asset of the corporation to which it is allocated. Further the allocation of a licence would not seem to contravene the Trade Practices Act 1974. Nor, it seemed, would the allocation of a second licence under s.39 of the Broadcasting Services Act constitute such a contravention. His Honour observed that it seemed "reasonably clear" that the transfer of a licence to a corporation could be capable of constituting a contravention of s.50 of the Trade Practices Act 1974. This comment seems to have been a reference to the position of the transferor rather than that of the acquirer.
30. After setting out the facts of the case, his Honour referred to Austereo's contention that the proposed acquisition fell within "the permissive framework of s.54 of the Broadcasting Services Act and that even if the acquisition could substantially lessen competition in a market within the meaning of s.50 of the Trade Practices Act, s.77 of the Broadcasting Services Act operates to oust what otherwise would have been the operation of s.50 of the Trade Practices Act in respect of that acquisition". His Honour identified as an essential step in Austereo's submissions that s.54 confers a right as well as imposing a prohibition, that is, that it gives rise to an implied permission to enable one person lawfully to be in a position to exercise control of one or two commercial radio broadcasting licences in the same area. Under s.77, it was contended, the implied permission allowed that to be done notwithstanding the Trade Practices Act 1974.
31. His Honour rejected the contention that s.54 gave rise to any implied permission. Apart from the prohibition in that section, the Act was not concerned with regulating the method by which a licensee exercises its powers to control its licence. That is left to the discretion of the licensee. Section 54 imposed a prohibition only and it followed that there was nothing in that section upon which s.77 could operate. His Honour said that his conclusion was supported by the fact that s.77 is limited to the provisions of Part 5 of the Broadcasting Services Act and cannot apply with respect to the other Parts of the Act, particularly those which provide for the allocation and transfer of licences. And if the provisions of the Trade Practices Act do not apply to the allocation of licenses but applied to the transfer of licences, it would be difficult to see the logic of excluding its application with respect to control of licences. Control, his Honour said, comes from the actions of the licensee. Whether the provisions of Part 4 of the Trade Practices Act apply to those actions could raise difficult and complex issues of fact and of law.
32. His Honour also referred to Part 7 of the Broadcasting Services Act which, although only inserted into that Act with effect from 11 December 1992, was relevant in considering the construction of s.77. He noted the requirement under s.97 for the ABA to obtain a report from the Trade Practices Commission before allocating a subscription television broadcasting service licence. That section, he said, appeared to be based upon the view that under the Broadcasting Services Act the allocation of a licence would not constitute a contravention of the Trade Practices Act. He expressed that view earlier in his reasons without any reliance upon the provisions of Part 7 of the Broadcasting Services Act. He also noted s.116B, which is within Part 7, and concluded:
"For the purposes of this application it is not
necessary to give any definitive meaning to s.77 of
the Broadcasting Services Act. It is sufficient to
say that, in my opinion and for the reasons given, the
section cannot operate to protect the licensee or any
other person exercising control of a licence, who, by
conduct, engages in contravention of s.50 of the Trade
Practices Act. Such conduct is so engaged in purely
at the discretion of the person concerned. The power
or authority so to do does not depend upon the
provision of Part 5 of the Broadcasting Services Act."
"2.1 The learned trial judge erred in holding
that on its proper construction Section 54
of the Broadcasting Services Act 1992 did
no more than impose a prohibition that one
person may not exercise power or control
of two commercial radio broadcasting
licences in the same licence area.
2.2 His Honour ought to have held that Section
54 impliedly permits a person to be in a
position to exercise control of two
commercial radio broadcasting licences in
the same licence area.
2.3 The learned trial judge erred in failing
to hold that on its proper construction
Section 77 of the Broadcasting Services
Act 1992 had the effect of excluding the
operation of the Trade Practices Act 1974
to the acquisition of a commercial radio
broadcasting licence not prohibited by
Section 54 of the Broadcasting Services Act 1992.
2.4 His Honour ought to have held that Section
77 operates upon Section 54 to exclude the
Trade Practices Act 1974 from applying to
the acquisition of a commercial radio
broadcasting licence where such
acquisition is not prohibited by Section 54."
34. The principal submissions for Austereo on the appeal were as follows:
1. The Broadcasting Services Act 1992 establishes a
comprehensive scheme for regulating the broadcasting
industry. It reflects a balance of policy considerations
which are specific and exclusive to that industry.
2. The provisions of Part 5 of the Act impose outer limits
on the extent of ownership and control in relation to
commercial radio broadcasting licences. In the context
of the licensing scheme established by the Act however
the provisions impliedly authorise that which they do not
prohibit, namely the arrangement, achievement and
exercise of levels of ownership and control of licences
which do not exceed the prescribed limits.
3. The possible application of the Trade Practices Act 1974
to the ownership and control of licences is addressed
differently in the Broadcasting Services Act according to
the category of licence or other issue in question.
4. Part 5 constitutes a comprehensive and exclusive code.
5. Section 77 must be construed to mean either that the
Trade Practices Act has no application to the subject
matter of Part 5, namely the arrangement, achievement and
exercise of ownership and control of commercial radio
licences within the limits prescribed by that Part or
that the Trade Practices Act should not apply to the
extent that its provisions are inconsistent with those of
Part 5 or would produce a different or inconsistent
result from that produced by the provisions of Part 5.
6. Reference to extrinsic parliamentary materials confirms
that section 77 ought to be given one of those two
constructions.
7. Absent section 77, the more specific and detailed
provisions of Part 5 are intended to operate as an
exclusive code and its provisions therefore oust the
general provisions of the Trade Practices Act to the
extent that the latter Act would produce a different
result from that produced by Part 5.
35. In response the Trade Practices Commission contends that the primary meaning of s.77 is not to abrogate the operation of the Trade Practices Act nor to render its provisions inapplicable to conduct to which Part 5 of the Broadcasting Services Act applies but to ensure that the provisions of Part 5 are not rendered ineffective by the Trade Practices Act. It is therefore only where one or more provisions of Part 5 would not have effect if the Trade Practices Act were to apply that s.77 would have the effect of rendering the Trade Practices Act provisions inapplicable and only to that extent.
36. The Commission contends that s.54 does not confer any absolute right to exercise control of either one or two commercial radio broadcasting licences in a licence area but merely prohibits a person from exercising control of more than two such licences in the same licence area. If conduct leading to the acquisition of control contravenes the Trade Practices Act the acquirer is prohibited by the Act from engaging in that conduct even if it would not contravene s.54. At its widest it is said the Broadcasting Services Act relates only to the broadcasting industry. The acquisition and control of licences might, however, have effects in other markets such as a market for music or a market for advertising services. Section 77 would need to be stretched very wide to exempt such conduct from the operation of the Trade Practices Act.
37. Section 97 of the Act is said to reflect the fact that the allocation of a pay television licence would not constitute the acquisition of an asset of a body corporate. That supports the view, it was submitted, that the allocation of a commercial radio broadcasting licence does not involve the acquisition of any assets of a person or of a corporation and therefore cannot contravene either ss.50(1) or 50(2) of the Trade Practices Act 1974. However s.97, it was said, assumes that the Trade Practices Act otherwise applies to the Broadcasting Services Act and s.116B makes clear that the Trade Practices Act applies to conduct covered by the Broadcasting Services Act. Section 77, it was submitted, provides for more abundant caution that compliance with the Trade Practices Act is not to be treated as an answer to the requirements of the Broadcasting Services Act. There was no ambiguity nor was the natural and grammatical meaning unreasonable or absurd.
38. Before turning to the specific issues of construction which are raised on this appeal, it is appropriate, in our opinion, to have regard to the legislative background to regulation of the broadcasting industry and some aspects of the public debate and governmental considerations that have led to the enactment of the Broadcasting Services Act 1992.
Media Regulation and the Trade Practices Act
39. The making of laws with respect to postal, telegraphic, telephonic and other like services is an important national responsibility conferred upon the Commonwealth by s.51(v) of the Constitution. A suggestion in the course of debate on the draft Constitution that Commonwealth legislative power be limited to postal and telegraphic services "without the boundaries of the Commonwealth" was rejected by the Adelaide Convention of 1897. The provision of such services was seen to be a matter of national rather than State interest - National Australasian Conv. Deb. Adel. 1897 pp 767-775. The insertion of the words "telephonic and other like services" was explained as conveying the possibility of "a long distance telephone or phonograph" - National Australasian Conv. Deb. Adel. 1897 p 773. There is some evidence that the mover, Mr Bernhard Wise, was aware of the imminent development of radio transmission - La Nauze, Other Like Services: Physics and the Australian Constitution (1968) 1 Records of the Australian Academy of Science 36 at 44. But the hypothesis is speculative and there is no evidence from the debate that his inferred prescience was shared by other delegates. Professor Sawer said of the judgment of the High Court in R. v. Brislan; Ex parte Williams [1935] HCA 78; (1935) 54 CLR 262, which held by majority that the Commonwealth could legislate with respect to radio broadcasting under this head of power:
"The dissenting view of Dixon J that "posts,
telegraphs, telephones and other like services" was
intended to deal with interpersonal communications is
an overwhelmingly more probable construction of what
the Founders intended." - Sawer, Australian Federalism
in the Courts (Melbourne 1967) p 87.
Nevertheless, in accordance with Brislan, the constitutional power has been held to embrace "the organised communication of messages from a distance, as well as the communication of messages by an organised means from a distance" - Jones v. The Commonwealth (No. 2) [1965] HCA 6; (1965) 112 CLR 206 at 219 (Barwick CJ), 226 (Kitto J, Taylor J agreeing) and 237 (Windeyer J). Its uncontroversial rationale was expressed in the course of the Convention Debates by reference to a national interest in the unified regulation of such services. That rationale can be taken to extend to the imputed authority to make laws in respect of radio and television broadcasting. To say that, of course, is not to exclude from application to the broadcasting industry general laws made under other heads of power such as s.51(i) (trade and commerce) or s.51(xx) (corporations). The constitutional background however indicates the special position that the industry occupies in trade and commerce within Australia albeit partly by virtue of creative judicial interpretation.
40. Constitutional support, derived from s.51(v), for provisions regulating the ownership and control of television broadcasting licences was found by the High Court in Herald and Weekly Times Ltd v. The Commonwealth [1966] HCA 78; (1966) 115 CLR 418. The provisions of the Broadcasting and Television Act 1942 there considered were held to form part of a valid legislative plan "to insulate the control and management of activities connected with the exercise of a television licence against the possibility of influence by a person who may occupy any of the specified positions of potential influence over like activities in relation to another licence" - p 437 (Kitto J, Taylor, Windeyer and Owen JJ agreeing). The control provisions were held to have been enacted as a means "for effectuating a desired end which is within power, namely that of ensuring freedom of competition between television services". That freedom of competition between services was later linked by the High Court to the provision of a wide range and variety of programs to the viewing and listening public - R. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45 at 53. And beyond that purpose the provisions of the former Act governing allocation and transfer of licences were seen to advance wider public interest considerations:
"From the elaborate provisions made by the Act in
relation to the grant, renewal, relocation and
suspension of licences, the limitation on the
ownership of shares, the determination of programme
standards and the extensive role which it gives to the
Tribunal in connection with these matters, we infer
that it is the purpose of the Act to ensure that
commercial broadcasting is conducted in the interests
of the public. The consequence is that resort to the
scope and purpose of the Act reinforces the conclusion
to be derived from the generality of the language of
s.89A that the Tribunal's discretion extends to
matters of public interest."
The public interest thus identified runs wider than the interests protected by maintaining freedom of competition in the economic sense. The ultimate purposes served by the control and ownership provisions of the former Act extended beyond purely economic benefits.
41. Despite the elaborate control and ownership provisions of the Broadcasting and Television Act 1942 there was nothing in that Act, nor is there any case law, which suggests that it displaced the generally applicable competition law found in Part IV of the Trade Practices Act. When the Swanson Committee reviewed the operation of the Trade Practices Act in 1976 it referred to numerous proposals to exclude from the application of all or some of its provisions matters relating to particular industries or affecting different functional levels within those industries. The Committee did not list the industries in respect of which such submissions were made but concluded that:
"...in general the Act should apply across-the-board
and be admissible of exceptions only where a case for
public benefit can be made out, or where Parliament
has specifically legislated to regulate the area" -
Report of Trade Practices Act Review Committee, August
1976 para.10.58
In relation to industries in respect of which regulatory legislation was or might be enacted, the Committee considered that the provisions of the Act should, subject to specific legislative approval of particular matters, "have primacy over restrictive trade practices adopted by or within any such industry" - para.10.61. In his comprehensive textbook Broadcasting Law and Policy in Australia, Butterworths (1982) at p 220, Professor Armstrong observed in relation to the former merger and takeover provisions of the Trade Practices Act:
"It might be thought that s 50 of the Trade Practices
Act 1974 (Cth) would be a major limit on changes in
control of broadcasting. In summary, s 50 prohibits a
corporation directly or indirectly acquiring shares or
assets of another corporation where as a result it
would be likely to be in a position to control or
dominate a market; or where its existing control or
dominance of the market would be substantially
strengthened. There is nothing in the B and T Act or
elsewhere to exclude the operation of the Trade
Practices Act. However, most markets in Australia are
served by a number of broadcasting stations, or at
least a number of media. It would be quite difficult
to establish control or dominance in contravention of
s 50, given the width of definition which has been
given to the term "market" in trade practices decisions:...."
42. There is a considerable literature on the relationship between anti-trust law and regulation of the media in the United States. The anti-trust law of that country generally applies to the electronic and print media. It is not displaced by constitutional constraints on interference with freedom of speech. In Associated Press v. United States [1945] USSC 133; (1945) 326 US 1 at 20, Black J said:
"The First Amendment, far from providing an argument
against application of the Sherman Act, here provides
powerful reasons to the contrary. That Amendment
rests on the assumption that the widest dissemination
of information from diverse and antagonistic sources
is essential to the welfare of the public ... Freedom
to publish is guaranteed under the Constitution, but
freedom to combine to keep others from publishing is
not. Freedom of the press from government
interference under the First Amendment does not
sanction repression of that freedom by private interests."
In United States v. Radio Corporation of America [1959] USSC 36; (1959) 358 US 334, the Supreme Court held that the regulatory scheme of the Federal Communications Act had not displaced that of the Sherman Act. There being "no pervasive regulatory scheme, and no rate structure to throw out of balance, sporadic action by federal courts (to enforce anti-trust law) can work no mischief" (at 365). That was not to say that the Federal Communications Commission was precluded from taking anti-trust provisions into account in decisions relating to the grant of licences - United States v. Radio Corp of America (supra) at 366; National Broadcasting Co. v. United States [1943] USSC 100; 319 US 190. Express exemption from the anti-trust law was however extended to joint operating agreements to support failing newspapers - Newspaper Preservation Act 15 USC. 1801-1804 (1982); see generally Moses, Antitrust and the Media 1984 Annual Survey of American Law 723 at 725-733; Steel, Joint Operating Agreements in the Newspaper Industry: A Threat to First Amendment Freedoms (1989) 138 Univ. of Penn. Law Rev. 275. As a general proposition the media in the United States is not protected from the application of anti-trust law. The position is similar in New Zealand. The Commerce Act 1986 is of general application and there is no exemption from its operation under the Radio Communications Act 1989 or the Broadcasting Act 1989. The Commerce Act 1986 specifies the "publishing of daily newspapers or Sunday newspapers or both" as one of the industries in respect of which merger or takeover proposals require prior notification (s.50 and First Schedule). See generally Ahdar, Freedom of the Press and Newspaper Mergers under the Commerce Act 1986 (1986) 3 Cant. Law Rev. 42. The position in Australia has been the same since the inception of the Trade Practices Act 1974 although the print and electronic media in this country enjoy a specific qualified protection from the application of various sections of Part V of the Trade Practices Act by virtue of s.65A. The origin and purpose of that section are discussed in Advanced Hair Studio Pty Ltd v. TVW Enterprises Limited (1987) 18 FCR 1 at 6-10. That section was amended by the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992 to conform to the provisions of the Broadcasting Services Act 1992. It was the only provision of the Trade Practices Act to be the subject of express consequential amendment.
43. Academic commentators in Australia have debated the desirability of the application of the anti-trust provisions of the Trade Practices Commission to the media industry, but the application of the Act does not seem to have been questioned - Baxt, Competitive Regulation of the Media (1991) 11 Communications Law Bulletin No. 3 pp.10-11; Pengilley, Restrictive Trade Practices Regulation of Media (1990) 10 Communications Law Bulletin No.4 pp 5-10. See also Walker, The Trade Practices Act 1974 and the Freedom of the Press (1980) 54 ALJ 57 in relation to the attempted takeover of Herald and Weekly Times Limited by News Limited in November 1979. In Radio 2UE Sydney Pty Ltd v. Stereo FM Pty Ltd [1983] FCA 140; (1983) 68 FLR 70 the application of the provisions of s.45 of the Act to alleged advertising price fixing by the operators of commercial radio licences was assumed and not debated.
44. Part IV of the Trade Practices Act 1974, as it now stands, is directed generally to maintaining workable competition in the relatively concentrated markets for goods and services within Australia. Unlike the New Zealand Commerce Act 1986 (s.3(1)), the Trade Practices Act does not expressly adopt that concept in a definition of competition. It has however been applied in practice in Australia. The concept of workable or effective competition was described in the Report of the Attorney-General's National Committee to study the Antitrust Laws, US Government Printing Office 1955. Its basic characteristic is that:
"...no one seller, and no group of sellers acting in
concert, has the power to choose its level of profits
by giving less and charging more."
That definition was accepted by the Trade Practices Tribunal in Re Queensland Co-operative Milling Ltd (1976) 25 FLR 169 and by the Swanson Committee (supra para.4.0). In the Trade Practices Act certain classes of prohibited arrangements or transactions may be authorised where the public benefit to be derived is likely to result in a benefit to the public which outweighs the detriment constituted by any lessening of competition (ss.88-90). Subject to review by the Trade Practices Tribunal, the authorisation process is entrusted to the Trade Practices Commission. The public benefits which are considered often have an economic flavour relating to the achievement of business efficiency, rationalisation and associated economies of scale but will include "anything of value to the community" - Re Queensland Co-Operative Milling Association Ltd (1976) 25 FLR 169 at 182.
45. Until 21 January 1993, s.50 of the Trade Practices Act prohibited mergers or acquisitions which would result or be likely to result in a corporation being in a position to dominate a market for goods or services or which would substantially strengthen the power of a corporation already in that position. The section was amended by the Trade Practices Legislation Amendment Act 1992 to its present form which substitutes the lower threshold test of "substantially lessening competition" for the former market dominance test. It applies to acquisitions which occurred after 21 January 1993. The amendments effected by the Act were introduced pursuant to recommendations on mergers and takeover law made by standing committees of the House of Representatives and the Senate. The earlier report published by the House of Representatives Standing Committee on Legal and Constitutional Affairs in May 1989 (The Griffiths Report) was entitled Mergers, Takeovers and Monopolies: Profiting from Competition? It canvassed the question of the respective roles of the Australian Broadcasting Tribunal and the Trade Practices Commission in relation to mergers or acquisitions within the broadcasting industry. It viewed with concern claims that requirements imposed by other legislation might overlap with s.50 of the Trade Practices Act 1974. However the evidence was insufficient to enable a final recommendation to be made with respect to any alternative regulatory regime (para.6.6.13). The Committee did recommend that the Attorney-General develop appropriate procedures to improve co-ordination between the Trade Practices Commission and other regulatory agencies which deal with various aspects of mergers (Recommendation 11). The Senate Standing Committee on Legal and Constitutional Affairs Report (The Cooney Report) was entitled Mergers, Monopolies and Acquisitions - Adequacy of Existing Legislative Controls. It was published in December 1991. The Committee recommended that s.50 should remain legislation aimed at protecting competition generally:
"Where there are other than economic issues involved in
industry structure or ownership, they may well be
dealt with in specific legislation. For example, at
the moment, there are issues arising in the banking
and media industries which could be dealt with in
terms of discrete legislation." - Recommendation 7 Report p xiv
In its conclusions leading up to this recommendation, the Committee accepted that certain industries may at various times attract the measure of community sensitivity. These included, in the Committee's opinion, the media. Such industries were said to be sensitive because of their bearing on the social and cultural life of the community:
"Social and cultural issues are outside the ambit of
the Trade Practices Act and should be dealt with
separately. The Trade Practices Act should continue
to be concerned with fair competition in the market
place and the protection of consumers." (para.4.61)
46. The Second Reading Speech to the Trade Practices Legislation Amendment Bill 1992 made no reference to this aspect of the Committee report although it did note that many of the recommendations made by the Griffiths and Cooney Committees were embodied in the Bill - Parl. Deb. H. of R. 3/11/92 p 2405. It is not apparent from the Cooney Report that the Senate Committee recommended that the media industry should be excluded from the purview of the Trade Practices Act. In terms, recommendation 7 suggests discrete legislation for "other than economics issues involved in industry structure or ownership". However there is nothing in the amending Act itself nor in the Second Reading Speech to suggest that it was not to apply to the media industry.
47. The introduction into the Parliament of the Broadcasting Services Bill 1992 was preceded by the tabling, in November 1991, of an Exposure Draft of a bill under that title for public discussion. The provisions of Parts 4 and 5 of that Exposure Draft are largely reflected in Parts 4 and 5 of the Broadcasting Services Act 1992. There was, however, no equivalent of s.77 in the Exposure Draft. In Part 9 of the Exposure Draft relating to program standards, the provisions of s.119 were in the same terms as those of s.130 as subsequently enacted. A Statement by the Minister for Transport and Communications tabled at the same time as the Exposure Draft made no express reference to interaction between the proposed Act and the Trade Practices Act. The Statement did however refer to the importance of the principle that regulation of broadcasting services should, to the greatest extent possible, be consistent with wider commercial law.
48. There was no explicit reference to interaction of the control provisions of the Broadcasting Services Act 1992 with s.50 of the Trade Practices Act 1974 in the Second Reading Speech in the Senate (4 June 1992) for the Broadcasting Services Bill. The description of the Australian Broadcasting Authority as "a single body responsible for the regulation of all aspects of broadcasting" (p 3604) and the objective of "an integrated and resource efficient approach to regulation" (p 3604) might suggest an intention to establish a regulatory regime under the Authority which would be exhaustive in its areas of responsibility. It might also, however, be understood as no more than a reference to the unifying of the responsibilities that were formerly divided between the Department of Transport and Communication and the Australian Broadcasting Tribunal.
49. The Bill was described in the Second Reading Speech as "the culmination of a long effort to bring the 50 year old Broadcasting Act of 1942 up to date". According to the Minister:
"The final form of the Bill balances the diverse, and
often conflicting, aspirations of those interested in
the broadcasting industry to develop a regulatory
framework that serves public interest in all its
dimensions - social, cultural and economic - while
also meeting the needs of a changing and growing
industry." (p 3599, Senate 4 June 1992)
The need for change was related to the complexity of the former Act and the desirability of legislation which would allow the broadcasting industry to respond to "the complexities of the modern market-place and the opportunities created by technological developments" (p 3599). Outdated and cumbersome regulation would, it was said, disadvantage consumers and be detrimental to the longer term prospects for Australia. The limitations of the current Act were said to have constrained development and structural adjustment of the broadcasting industry and thus diversity of choice for consumers. With the new Bill, it was said, every effort had been made to avoid unnecessary regulation. The policy and purposes of the Bill were described in the following terms:
"The Bill incorporates objectives and policy
guidelines. It sets out the categories of service,
describing them by their nature rather than by their
technical means of delivery - it should thus not need
constant amendment as technical conditions change. It
provides for: new types and greater numbers of
services to emerge; greater public access to the
regulatory processes; a continuation of obligations on
broadcasters in relation to program standards; and
ensures that Parliament's objectives about diversity
of ownership are effectively delivered. It provides
for far more accountability, while retaining a
suitable measure of statutory independence for the
regulatory agency.
At a more general level, the Bill seeks to set rules
and requirements that are consistent with wider
commercial regulation such as the Trade Practices Act
and Corporations Law, except where industry-specific
regulatory requirements have been pre-determined by
Government policy. The processes proposed for program
standards and industry codes of practice for
programming, particularly the commissioning of robust
research, seek to ensure that these standards reflect
widespread community views. The rules, processes and
enforcement provisions have less potential for abuse
and delay and should ensure that both the letter and
the intent of Government policies in these areas are
delivered." (p 3600)
There followed reference to particular provisions of the Bill. The control provisions of Part 5 were described as a key reform focussing on the important concept of control of a licence in which the level of equity holding was only one factor. On the question of control of holdings of radio stations, the Minister said:
"The limitation on the number of radio stations
controlled by a person in a licence area has been
increased from one to two. In metropolitan areas this
will allow licensees to experiment with different
formats within a single market. In regional areas,
this two-to-a-market rule enables an operator in a
single station market to take up a second licence,
thus increasing the range of services on offer. A
second licence in single service markets will only be
issued where there is another unused frequency
available for any future entrant." (p 3601)
There was no reference in the Second Reading Speech to s.77.
50. In relation to the role of the Australian Broadcasting Authority, it was noted that the new body would be formed by merging broadcasting planning elements of the Department of Transport and Communications with the licensing and program monitoring resources of the former Australian Broadcasting Tribunal. The Minister observed that:
"This will create a single body responsible for the
regulation of all aspects of broadcasting, and should
lead to an integrated and resource efficient approach
to regulation." (p 3604)
The role of the Australian Broadcasting Authority was elaborated in the Explanatory Memorandum accompanying the Bill which described it as:
"...an oversighting body akin to the TPC rather than
... an interventionist agency hampered by rigid,
detailed statutory procedures, and formalities and
legalism as has been the experience with the ABT. It
is intended that the ABA monitor the broadcasting
industry's performance against clear, established
rules, intervene only when it has real cause for
concern, and has effective redressive (sic) powers to
act to correct breaches." (p 13)
Section 54 was explained as providing a "two-to-a-market" rule which is more liberal than that provided under the 1942 Act. This change, it was said, allows for some small degree of economies of scale to be reached in markets where competition is not a concern but, in combination with s.39, protects smaller markets from undue concentration of ownership. Section 77, the Explanatory Memorandum said:
"Makes it clear that this Part overrides the Trade
Practices Act 1974 wherever it is inconsistent with
that Act for the purposes of the (ownership and
control) limits set in this Part. The TPA continues
to apply to the conduct of broadcasters."
51. The inclusion of s.77 in the Broadcasting Services Act 1992 is not otherwise explained by reference to the Second Reading Speech or the Explanatory Memorandum. It was not foreshadowed in the Exposure Draft nor in the Ministerial Statement that accompanied it. And beyond the rather elusive references to the operation of the Trade Practices Act in its interaction with the legislative arrangements for regulation of the media, there was nothing in the Griffiths or Cooney Reports which would cast light upon its intended operation. The Explanatory Memorandum does not identify the inconsistencies to which s. 77 is directed. A legislative intention to generally displace the operation of the provisions of Part IV of the Trade Practices Act 1974 or even of ss.45 and 50 from the field of control and ownership of broadcasting media would represent a significant departure from the previous regulatory scheme. It would be unsupported by any developed discussion or recommendations in the Reports and Ministerial Statement leading up to the enactment of the Broadcasting Services Act 1992. And as will be seen, there is nothing explicit in that Act to support such a contention. Certainly there is nothing in the legislative history or extrinsic materials to which we have referred to suggest such an intention on the part of the draftsman or the legislature.
The Operation of Part 5 of the Broadcasting Services Act 1992
52. The allocation, renewal, suspension or cancellation of licences is a function conferred on the Australian Broadcasting Authority by s.158 of the Act. Part 4 sets out a mechanism for the allocation of licences to the extent that it requires the ABA to advertise for applications and to provide for a written form of application and for the payment of a fee. It also authorises their transfer. The powers and mechanisms which relate to the acquisition of commercial television and radio broadcasting licences are not to be found in Part 5. That Part in its terms imposes limits on the allocation and transfer of licences authorised by Part 4. One of the ways it does this in relation to commercial radio broadcasting licences is by prohibiting persons from being in a position to exercise control of more than two such licences in the same licence area. The prohibition is imposed by s.54 but it is submitted for Austereo that the section, by implication, authorises the acquisition of up to two commercial radio broadcasting licences in any licence area. Indeed, it is contended that the provisions of Part 5 of the Act, taken as a whole, impliedly authorise that which they do not prohibit, being the arrangement, achievement and exercise of levels of ownership and control which do not exceed the proscribed limits.
53. Statutory implications are not to be made lightly. Courts in the past have erected the high threshold of "clear necessity" in their way - Salomon v. Salomon (1897) AC 22 at 28; Thompson v. Goold (1910) AC 409 at 420; BP Refinery (Westernport) Pty Ltd v. Shire of Hastings [1977] HCA 40; (1977) 16 ALR 363 at 374; Dallikavak v. Minister for Immigration and Ethnic Affairs (1985) 61 ALR 471 at 475-476. That criterion has been criticised as too narrowly limiting implication to cases of logical necessity. Logic, it is said, is not the only criterion in determining the legal meaning of a legislative text. Implication often involves psychological rather than logical inference - Bennion, Statutory Interpretation 2nd Edition Butterworths (1992) at p 366. Reference is made in that text to the dictum of Willes J in Chorlton v. Lings (1868) LR 4 CP 374 at 387 that the legal meaning of an enactment includes "what is necessarily or properly implied by the language" used (emphasis added). In one sense it may be said that any departure from the literal meaning of the words of a statute involves a process of, or akin to, implication and that such departures are not limited by a requirement that the proposed reading answer some logical necessity. The rigidity of a rule of logical necessity for implication seems inconsistent with the observations of Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v. Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 320, where having discussed the so-called "literal" and "golden" rules of construction, their Honours said:
"In some cases in the past these rules of construction
have been applied too rigidly. The fundamental object
of statutory construction in every case is to
ascertain the legislative intention by reference to
the language of the instrument viewed as a whole. But
in performing that task the courts look to the
operation of the statute according to its terms and to
legitimate aids to construction."
As Professor Pearce writes in the third edition of his text, Statutory Interpretation in Australia, Butterworths (1988) at para.2.21, the comments of their Honours represent a substantial departure from the statement of the literal rule in Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd [1920] HCA 54; (1920) 28 CLR 129 at 161-2. The process of statutory implication is not to be quarantined from this more flexible approach to construction by the barrier of logical necessity. Consistent with this approach, in our respectful opinion, is the observation in Bennion (supra) at p 367 where it is said:
"The question of whether an implication should be found
within the express words of an enactment depends on
whether it is proper or legitimate to find the
implication in arriving at the legal meaning of the
enactment, having regard to the accepted guides to
legislative intention. It is for the court to decide
whether a suggested implication is "proper". This may
involve a consideration of the rules of language or
the principles of law, or both together. Where the
point is doubtful it will, as always in
interpretation, call for a weighing and balancing of
the relevant factors."
See also Sloane v. Minister for Immigration and Ethnic Affairs [1992] FCA 414; (1992) 37 FCR 429 at 443-4.
54. There is nevertheless, in our opinion, nothing disclosed in the text of Part 5, nor in the arrangement of provisions in the Act, nor in the stated objects of the Act which would support the implication that s.54, in terms a limiting provision, authorises that which it does not prohibit. If a necessity test is to be applied there is plainly no need for such an implication. The allocation and transfer of licences is provided for in Part 4. It might be said that the presence of s.77 in Part 5 evidences an understanding on the part of the legislature that there is something in the other provisions which conflicts with the Trade Practices Act 1974. This, it might be said, would support the implication contended for. Such an approach would, however, be a case of the tail wagging the dog. The proper construction of the relevant provisions of Part 5 must be determined before the operation of s.77 is considered. It may be that the section was simply inserted for more abundant caution against the possibility of some misunderstanding that the process of authorisation of a merger or takeover by the Trade Practices Commission would extend to sanction the acquisition of a controlling position with respect to a licence notwithstanding the prohibitions contained in Part 5. That would be a misunderstanding of the authorisation process which merely immunises the conduct or transaction authorised against characterisation as a contravention of the relevant provisions of the Trade Practices Act. But such misunderstanding is not uncommon and the insertion of the provision to meet that possibility is at least understandable. The question then arises whether Part 5 taken as a whole indicates a legislative intention to exclude the operation of parts of the Trade Practices Act which might otherwise apply to affect concentrations of ownership or control of licences which are not prohibited by Part V. It is not necessary for present purposes to look beyond the question whether the Broadcasting Services Act 1992 excludes the operation of ss. 45 and 50 of the Trade Practices Act in this respect.
55. It is true that there are stated statutory objects set out in s.3 of the Act which overlap with the unstated purposes of Part IV of the Trade Practices Act 1974. Those objects which relate to the "development of a broadcasting industry in Australia that is efficient, competitive and responsive to audience needs" and "encouraging diversity in control of the more influential broadcasting services" are, to some degree, subsumed in the statutory policy of Part IV and particularly s.50 of the Trade Practices Act 1974. Certainly the Australian Broadcasting Authority, as industry regulator, is given the power to undertake inquiries and make investigations in relation to the allocation of licences and for other purposes. In the conduct of such inquiries and investigations it would be obliged to have regard to the relevant statutory objects. It also monitors transfers and changes in control through the notification process and gives authorisation to "temporary breaches" of the control provisions. Such authorisations only have effect for the purpose of protecting a person from being characterised as an offender against the provisions of the Act - see s.66(1)(d). As the Explanatory Memorandum to the Broadcasting Services Act 1992 indicated, the Australian Broadcasting Authority has a role "akin to the TPC". That is not to say that it was intended to be equipped to fulfil all the functions of the Trade Practices Commission as they would otherwise apply to the broadcasting industry. The extrinsic materials lend no support to such a conclusion. More importantly, the purpose of Part IV of the Trade Practices Act 1974 and the role of the Trade Practices Commission in its enforcement are related to the maintenance of workable competition in markets in Australia. Subject to the overlap provisions to which reference has been made the control and ownership limits imposed by the Broadcasting Services Act are defined by distinct licence areas. In the case of commercial television broadcasting licences there is an additional limitation that a person must not be in a position to exercise control of such licences whose combined licence area populations exceed 75% of the population of Australia. A licence area may define geographic markets for the sale of commercial radio or television advertising time (although we express no concluded view on that question) but there are other markets in which licence holders may operate which go well beyond those limits. A market for the sale or acquisition of television or radio programs might be one example. It is true that access to the broadcasting industry is rationed and regulated by the Act. But the commercial interactions of those who operate in the industry are, on the face of it, potentially so various and complex that the impact of their concentration on the competitive process cannot be defined solely by reference to their impact within licence areas or in relation to the sale of advertising services in markets linked to those areas. In our opinion the language of Part 5 is such, and its operation is so confined, that it does not warrant characterisation as an exhaustive scheme for the regulation of the concentration of control and ownership within the broadcasting industry which excludes s.50 of the Trade Practices Act 1974. A fortiori it does not exclude the operation of s.45 which relates to anti-competitive agreements. The same is true of any lesser proposition that Part 5 excludes the operation of ss.45 or 50 so far as they relate to concentration of ownership or conduct in geographical markets defined by licence areas.
56. This leaves the question - what operation does s.77 have under Part 5? Having determined that neither s.54 nor Part 5 taken as a whole operates to exclude ss.45 or 50 of the Trade Practices Act 1974, it is not necessary to answer that question. It may arise in some other context against some other alleged statutory conflict which has not yet been explored before us. It may be that the section was inserted out of an abundance of caution to avoid any possibility that the authorisation process which the Trade Practices Act provides in relation to s.50 might be seen to conflict with the limits on ownership and control for which Part 5 provides. It would, we think, at this stage be unsafe to take the question of the construction of s.77 any further. What is clear is that Part 5 of the Act is not intended to exclude from its area of application the operation of ss. 45 or 50 of the Trade Practices Act 1974. That conclusion is derived from the language of Part 5 and the relevant provisions of the Trade Practices Act 1974. It is reinforced by the background and extrinsic materials to which reference has been made. In our opinion the appeal should be dismissed.
Austereo Limited
Trade Practices Commission [1993] FCA 301;
(1976) 25 FLR 169
(1977) 16 ALR 363
(1981) 147 CLR 297
(1920) 28 CLR 129
(1992) 37 FCR 429
(1991) 172 CLR 167
(1992) 111 ALR 577
(1935) 54 CLR 262
(1985) 61 ALR 471
(1993) 115 ALR 14
(1993) 41 FCR 1
(1961) 106 CLR 268
(1965) 112 CLR 206
(1965) 112 CLR 343
(1966) 115 CLR 418
(1979) 144 CLR 45
(1986) 161 CLR 47
(1989) 166 CLR 161
(1987) 18 FCR 1
(1983) 68 FLR 70
(1989) 86 ALR 532
(1992) 37 FCR 479
(1985) 159 CLR 70
(1988) 166 CLR 186
(1988) 164 CLR 234