Commercial Radio Coffs Harbour Ltd v Fuller

High Court of Australia|1986-07-01|Before: Dawson JJ, Brennan J

The applicant sought to rely on s. 132(1) of the Commonwealth Act, with particular reference to the direction in s. 89C of the same Act that:

The holder of a licence shall commence the service in pursuance of the licence on such date as is determined by the Tribunal. Section 132(1) reads as follows: Any person who contravenes, or fails to comply with, any provision of this Act or the regulations, or any condition of a licence granted or deemed to have been granted under this Act, or fails to comply with a direction under the regulations, unless otherwise provided by this Act, is guilty of an offence against this Act by virtue of this section. The argument is that the Parliament could not have intended to allow the State Act to operate so as to prevent a licensee from complying with s. 89C and so expose it to prosecution under s. 132(1). However, despite the breadth of its language, we do not think that s. 132(1) makes a criminal offence of a mere failure to institute the service on the date determined by the Tribunal. The primary function of s. 89C is to emphasize that it is the role of the Tribunal to determine the date from which the licensee will be freed from the prohibition contained in s. 6A. It would indeed be surprising if an inability, for whatever reason of law or circumstance, to take advantage of the lifting of that prohibition constituted an offence under the Act. It may, of course, constitute a breach of the undertaking to "provide an adequate and comprehensive service in pursuance of the licence": s. 83(5)(b)(i). By virtue of s. 88(1) of the Act, such a breach may result in a suspension or revocation of the licence. But in our opinion, s. 132 is directed to acts or omissions which relate to the actual carrying on of the broadcasting service.

If a local council withholds its consent to a development application made under the State Act, the grantee of a licence under the Commonwealth Act may be unable to exercise the authority conferred by the licence. However, the fact that the combined operation of two laws, each of which deals with a different topic, may create a situation of deadlock does not give rise to inconsistency: see Airlines of N.S.W. Pty. Ltd. v. New South Wales [No. 2] [9] per Kitto J., per Menzies J. [10] and per Owen J. [11] . A resolution of the difficulty may be found in particular instances in the variation of a licence condition pursuant to s. 85 of the Commonwealth Act, but even if this cannot be done, the result is at most one of inconvenience rather than inconsistency.

(1965) 113 C.L.R. 54, at p. 121. 2. (1965) 113 C.L.R., at p. 144. 3. (1965) 113 C.L.R., at p. 168.

In our view there is no inconsistency between the relevant provisions of the Commonwealth Act and the State legislation and the question removed into this Court should be answered in the negative.

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

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