Herald-Sun TV Pty Ltd & Ors v Australian Broadcasting Tribunal [1984] FCA 204

The Australian Broadcasting Tribunal 1s constituted by Division 1 of Part II of the Broadcasting and Television Act, 1942. Division 2 deals with the powers and functions of the Tribunal. Section 16(1). which is within that Division,

specifies certain functions. They include, by para (d)}:

"To determine the standards to be ohserved by licensees in respect of the broadcasting or televising of programs".

The meaning of the word "standards" in para (d) is the

Section 16(2) requires the Tribunal, in performing its functions under, inter alia, para (d) in relation to television stations, to consult representatives of the stations. Section 17 provides that, for the purpose of exercising its powers and functions under the Act, the Tribunal shall have power to make such orders, give such directions and do ail such things as it

thinks fit. Orders are to be made in writing and to have the

force of law. Division 3 deals with inquiries and empowers the Tribunal, before taking action under the Act in relation to any matter, to hold an inquiry into that matter.

The determination of standards under s.16(1)(d) isa function committed to the Tribunal in the public interest. No criteria are specified and the comments made by the High Court (Stephen, Mason, Murphy, Aickin and Wilson JJ) in The Queen v

Australian Broadcasting Tribunal; Ex Parte 2HD Pty Limited (1979)

144 CLR 45 at p 49, in relation to s.16(1)(b) dealing with the authorization of transactions in relation to licences, are

applicable to the Tribunal's function under s.16(1)(d):

"Here the problem lies in ascertaining what are the proper limits of the discretion. In the absence of some positive indication of the considerations on which a grant or refusal of consent 18 to depend, the discretion is 'unconfined except insofar as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view', to use the words of Dixon J in Water Conservation

and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at p 505".

Applied to this case, that passage poses the question for the Court whether having regard to the subject matter, scope

and purpose of s.16(1)(d) the relevant provisions of the

Children's Television Standards are "definitely extraneous to any

objects the legislature could have had in view". The adoption of a Determination which contains matter extraneous to the notion of 'standards', as that word is used in s.16(1)(d), would be outside

In relation to the scope and purpose of standards determined under 3.16(1)(d) counsel for the applicants points to the consequences to licensees of a Determination. Part IV of the Act deals with the commercial broadcasting service and the commercial television service. It provides for the licensing of commercial broadcasters and telecasters. Section 99 requires each licensee to provide programs and to supervise the broadcasting or televising of programs from his station "in such Manner as to ansure,. as far ab practicable. that the programs aré in accordance with standards determined by the Tribunal". If the programs fail to conform with standards determined by the Tribunal, the licensee is bound, if so directed by the Tribunal, to vary the programs so as to conform. Section 129 makes every licence subject to the provisions of the Act and deems those provisions to be incorporated in the licence as terms and conditions of the licence. Section 86(11B)(c)(iii) entitles the Tribunal to refuse the renewal of a licence, inter alia, 1f 1t is satisfied that a condition of the licence has not been complied with. It appears to follow that a failure by a licensee to comply with a determined standard puts at risk the renewal of his

The applicants challenge the validity of some only of

the provisions in the Children's Television Standards. Those

provisions fall into two categories. The first category relates to the classification of material as suitable for showing within the period described as "C time", usually between 4.00 pm and 5.00 pm on a week day. The second category relates to the

classification of material as "Australian Children's Drama".

The Standards use the concept of a "C program", being a program "which meets the criteria of suitability for children

in CTS 2 and has been so classified by the Tribunal under CTS 3":

see CTS 1. Only a "C program" may be shown during "C time": see CTS 3(1). CTS 2 specifies the criteria for a "C program". "2. A C program 1s one which: (a) is designed specifically for children older than 5 years and younger that 14 years; (b) is designed to entertain children; (c) is well produced technically and artistically; (d) can be easily understood and appreciated by children; (e) fulfils some special need of children; (f) contributes to the social, emotional or

(g) is appropriate for Australian children, not assuming too much of the culture, dialect or environment of some other

(h) 1s not outdated in content or in technical or artistic production".

CTS 3(2) provides for the classification by the Tribunal

of representative samples of programs "as complying with the 'C program' criteria in CTS 2". The clause envisages

classification, in the first instance, by a single member of the Tribunal with review, if requested, by a quorum of Tribunal members: see CTS 33 and the Tribunal Practice Note PRN 01

CTS 8 provides that, unless otherwise determined at the time of classification, a classification of a program under CTS 3 shall last for 5 years but may be renewed. A classification may be revoked where a program 1s not consistent with the representative sample upon which the classification was granted or renewed. CTS 9 deals with a special case: a "station of origin C" program, being a program deemed to be a C program when transmitted from the station for which it was produced but not

otherwise. In such a case it may be transmitted as a C program

CTS 10 deals with provisional classification prior to

Children's Television Standards impose requirements for the

transmission of first release Australian Children's Drama. In

each year a licensee must transmit 8 hours of "first release

Australian Children's Drama" prior to 8.30 pm on any day of the

week: see CTS 14. CTS 13 defines "Australian Children's Drama"

"A television program which meets all the following requirements:

the program must be classified by the Tribunal as a C program;

(a) a single program not less than 24 minutes long; or

(b) a ser1es in which each episode 15 not less than 24 minutes long;

the program must have been made after 30 June 1981;

the program must in the opinion of the Tribunal be a dramatic work (a fully scripted play which has been produced for use on television, in which the dramatic elements of character, theme and plot are introduced and developed so as to form a narrative structure); and

the program must 1n the opinion of the Tribunal have a significant Australian content, having regard to:

(a) its subject matter; (b) the place where it was made;

(c) the nationalities and places of residence of the people who took part in the making of the program (including authors, composers, scriptwriters, producers, directors, actors, editors and technicians)".

Counsel for the applicants contended that the clauses in the Children's Television Standards the subject of the Application are invalid because they do not constitute a determination by the Tribunal of "standards to be observed by licensees". He claimed that the provisions are inconsistent with the notion of "standards" for two reasons: they adopt subjective, rather than objective, criteria and they depend for

their operation upon a system of preclassification of programs.

The word "standards" is not defined in the Broadcasting and Television Act. However, counsel for the applicants referred

to one of the definitions of the word given in the Shorter Oxford

"II4 a definite level of excellence, attainment, wealth, or the like, or a definite degree of any quality, viewed as a prescribed object of endeavour or as the measure of what is adequate for some purpose".

Counsel emphasised the word "definite" and argued that 1t 1s therefore a necessary ingredient of a "standard" that it have fixed limits, be determinate, precise, and free of any element of subjective - 1n which he included qualitative - judgement. Criteria which depend upon subjective assessments, as for example whether a program is a "dramatic work" (CTS 13(4)) or

whether it has "significant Australian content" (CTS 13(5)) lack

the required degree of precision and therefore fall outside the

concept of a "standard". He cited The Queen v Galvin; Ex Parte

Metal Trades Employers Association (1979) 77 CLR 432, a case involving the question whether the insertion in an industrial

award of a provision for a tea break involved an alteration of "the standard hours of work in an industry". At p 447 of their joint judgement, Latham CJ, Dixon, McTiernan,

"The word 'standard' is used in several senses. The meaning of the word may vary in accordance with the context in which it is used. The primary idea which the word expresses is that of a measure of quantity or quality fixed or approved by some authority, eg standard foot, standard pound, standard of behaviour. In this case the word is applied to working hours in industry. When those hours are fixed by an award, reference must be made to the terms of the award for the purpose of identifying the 'standard hours'. The legislature must be assumed to have been aware of the longa established practice in industrial tribunals of prescribing 1n awards what were to be the normal working hours in an industry subject to special provisions where such circumstances were deemed to warrant some remission in such working hours. The general provisions for work for normal hours must be regarded as fixing the standard hours of work".

Counsel points to this example of a "standard" being specified in delegated legislation by the statement of a precise

The applicants also relied upon two price fixing cases, pursuant to the war time National Security (Prices) Regulations:

King Gee Clothing Co Pty Limited v The Commonwealth (1945) 71 CLR

184 and Cann's Pty Limited v The Commonwealth (1946) 71 CLR 210.

In each of those cases price fixing orders were held to be invalid because the methods prescribed for computation of the maximum price involved elements of estimation and apportionment.

The rationale of the decision was expressed by Dixon J in the

"It needs no imagination to see that in drafting an order for the fixing of prices for an important trade many difficulties must be encountered and it would be impossible to avoid ambiguities and uncertainties which are bound to arise both from forms of expression and from the intricacies of the subject. But it is not to matters of that sort that I refer. They depend upon the meaning of the instrument and they must be resolved by construction and interpretation as in the case of other documents. They do not go to power. But it is another matter when the basis of the price, however clearly described, involves some matter which 1s not an ascertainable fact or figure but a matter of estimate, assessment, discretionary allocation, or apportionment, resulting in the attribution of an amount or figure as a matter of judgement. When that 1s done no certain objective standard 1s prescribed; it 1s not a calculation and the result 1s nota price fixed or a fixed price. That, I think, means that the power has not been pursued and is not well exercised".

Counsel draws attention to the collocation of words:

Counsel for the respondent Tribunal concede that there

are to be found contexts in which the word "standard" or

"standards" means a precisely ascertainable measure, free of any

element of subjective or qualitative assessment. They say, however, that the words do not necessarily exclude qualitative

assessment and they point to the Macquarie Dictionary definition

"1. Anything taken by general consent as a basis of comparison; an approved model ....

6. A grade or level of excellence, achievement, or advancement ....

7. A level of quality which 1s regarded as normal, adequate, or acceptable". Counsel argue that these definitions do not restrict the use of the word to objective determinations. I think that this 1s in accordance with modern Australian usage; we speak of

"standards of dress", "standards of behaviour" and "standards of discipline" even though such assessments are qualitative and

substantially subjective. And 1t 1s noteworthy that, in Galvin, the High Court included within the "primary idea" of the word "a

The relevant question of course, is the meaning to be attributed to the word 'standards' in its present statutory context. In the words adopted in the 2HD case, what is the subject matter, scope and purpose of the grant of power? The Tribunal is established under the Act as the general regulatory authority of broadcasting and television in Australia. The

function of prescribing "standards" has to apply to a myriad of

circumstances, including the content of programs. It 18 possibile

to regulate content, to some extent, by objective negative commands. The Tribunal could prohibit the transmission of material in which particular events are portrayed or in which particular words are used. But this would provide a very limited degree of control. There would remain many matters of content, which many people would regard as proper for control, incapable of regulation in such a manner. The variety of material available for transmission is so great that it is impossible adequately to foresee or to specify the precise content of that which the Tribunal might reasonably regard as proper, in the public interest, to be made subject to some measure of control. Under those circumstances resort must be had to general formulae. Instances are to be found in the Children's Television Standards themselves of such formulae, being provisions in relation to which no complaint is made in this Application. For example, CTS

"12. No program, advertisement or other transmission during C Time may:

{a) demean any group or class of people on the basis of their sex, age, race, ethnicity, disability, religious beliefs or political convictions; or

(bd) present images or events in a way which 1s unduly frightening or unduly disturbing to children".

Counsel for the applicants conceded that the criteria

specified in CTS 12 are heavily subjective, in the application of

which minds may reasonably differ, but he did not contest the legal validity of that paragraph apparently because it is framed

I see no reason to confine the word 'standards' to negative stipulations, or to exclude qualitative requirements involving subjective assessment. The legislature appears to have intended the Tribunal to have a role in lifting the standards of programs. The requirement of consultation (s.16(2))

and the mechanism for inquiry (Div.3) are consistent with a

In relation to content it would appear possible for the Tribunal to undertake the positive role of effecting an improvement in standards only by a system of approval of particular programs or by the use of formulae which adopt subjective criteria or both. For the Tribunal to depend entirely upon objective criteria would be for it to dictate the precise form of programs, to negative creativity by licensees and to take upon itself the role of producer of all programs. The Tribunal has itself put the argument relating to creativity in its Reasons for adopting the qualitative criteria in CTS 2 - which although

involving subjective assessment are not challenged by the

"(86) Children's program production is a highly creative activity. The C classification criteria have been deliberately framed in broad terms to recognise both this fact and to take advantage of it in stimulating the diversity of program format types and creative approaches. Rigid, minutely defined criteria are anathema to creative activity. Naturally, rules about the character of creative products like programs cannot and should not be as specific and detailed as engineering or architectural specifications. Therefore, the criteria have been designed so as not to intrude on or inhibit the creative integrity of producers, but to indicate the direction that program producers and stations should take in producing and selecting programs which will achieve the C classification objectives".

An aspect of the subject matter. scope and purpose of the grant of statutory discretion in s.16(1)(d) 1s that the property interests of licensees are involved. Licensees who breach the standards put their licences at risk. It is undesirable, say the applicants, to interpret the word "standards" in such a way as to subject them to risk from the

application against them of criteria which depend upon subjective

assessment and in relation to which minds may differ.

Several matters may be said in relation to that submission. First, it is not unusual for a statute to create a power to license or approve subject to conditions. There is no general rule that conditions lawfully imposed pursuant to such a

power are to be confined to those which are non-qualitative or

objective in character. The test always is whether the

conditions as framed may fairly be regarded as related to the

purpose for which the relevant statutory function is being

exercised: see Allen Commercial Constructions Pty Limited v

Sydney Municipal Council (1970) 123 CLR 490 at p 499. If that

purpose may reasonably require or support a condition dependent upon subjective assessment then such a condition is valid. Under this very statute the specifications in relation to a s.82A license may include matters relevant to s.93, which section requires technical equipment and the manner of operation of that equipment to meet the satisfaction of the Minister. A qualitative condition requiring subjective assessment of those matters would clearly be within power and perhaps the only way of meeting the case. See also the general terms of s.81(1) permitting the grant or renewal of a licence "upon such

Secondly, 1t 1s erroneous to look at the Broadcasting and Television Act as being directed at the creation and maintenance of private property rights in licensees. On the contrary, the Act sets out to establish a comprehensive system of broadcasting and television in Australia; to be achieved through a combination of the activities of a national broadcasting and television service (Part III), (and see now the Australian Broadcasting Corporation Act, 1983), the Special Broadcasting

Service (Part IIIA), and commercial licensees (Part IV). The

whole scheme is directed to the public interest in receiving a service adequate in both quantity and quality. Licensees' property interests, although important, are subordinate to that

"From the elaborate provisions made by the Act in relation to the grant, renewal, revocation and suspension of licences, the limitation on the ownership of shares, the determination or programme standards and the extensive role which it gives to the Tribunal in connection with these matters, we infer that it 1s the purpose of the Act to ensure that commercial broadcasting 1s conducted in the interests of the public".

See also Herald and Weekiy Times Ltd v The Commonwealth

(1966) 115 CLR 418 especially per Katto J at p 437.

In this case the Tribunal has articulated (see Reasons paras 67-71) and acted upon the view that the public interest in receipt of children's programs of adequate quality requires the adoption by 1t of positive, qualitative criteria requiring subjective assessment. To restrict the width of the word 'standards', if otherwise applicable to the Tribunal decision, so as to obviate or minimise risk to licenses is to reverse the scheme of the Act, to sacrifice the public interest in the adequacy of programs to the property interests of some of those

recruited to serve that public interest by providing programs.

standard does not automatically or necessarily lead to

non-renewal of a licence. Breach is a matter which may lead to non-renewal but the Tribunal would be unlikely to decide not to renew on this ground except upon evidence of blatant, and possibly repeated, breach. Any decision of the Tribunal not to renew - I was told that there has never yet been such a decision

• is appealable to the Administrative Appeals Tribunal (ss.86, 119A); thus enabling fresh minds to consider the proper interpretation of, and the extent and genuineness of any

licensee's attempt to comply with, any criteria requiring

It is not easy, with such a paucity of guidance in the statute itself, to determine what Parliament meant to include in the word 'standards' in s.16(1)(d) but, in the end, the dominant consideration must be the nature of the activity being subjected to regulation. The regulation of the broadcasting and television industries cannot be approached in the same way as the fixing of working hours or maximum prices of goods. The adoption of the applicants'interpretation would not assist the attainment of any object of the Broadcasting and Television Act but rather would seriously limit any opportunity for the Tribunal to influence in

a positive way program quality. People working under the Act are

engaged in a creative process necessarily involving subjective judgements. In that context there is no warrant for reading the

word "standards" as being limited to specifications not involving

The second argument put on behalf of the applicants is that the Standards are bad insofar as they require preclassification of C programs and Australian Children's Drama by the Tribunal. Such a requirement cannot, they say, be a 'standard'. Counsel concedes that subordinate legislation may

properly require prior approval, even by the subordinate

legislator itself, of the doing of a particular act; Brunswick

Corporation v Stewart (1941) 65 CLR 88, Country Roads Board v

Neale Ads Pty Limited (1930) 43 CLR 126. He further concedes that there is in this requirement no element of uncertainty or subjectivity in application - whether or not the Tribunal has approved a particular program will be an objective fact capable of precise determination. However, he says that any system of prior classification amounts to the censorship of program material, a power not given in general terms to the Tribunal and impliedly excluded by the expressio unius principle. Counsel points to the particular provisions in the Act which prohibit or require (3s.100(5A)(6), 115, 116, 117, 118, 121) or which empower the Tribunal (ss.100(5), 101, 103, 119) or the Minister (s.104) or the Governor-General (s.131) to prohibit, or to require, the showing of particular material. These provisions are to be

read, he says, as an exhaustive statement of the powers of

Government to 'censor' programs. Whatever may otherwise be comprehended in the word "standards", the power thereby granted excludes any order requiring the pre-approval of program material

Counsel for the Tribunal drew attention to the fact that, over many years, the Tribunal and its predecessor the Australian Broadcasting Control Board had, by the determination of "standards" from time to time, purported to require television stations to observe limitations on the times at which films of particular classifications, as determined by the Commonwealth Film Censorship Board, might be shown. They tendered for information the 1970 Television Programme Standards which, in amended form, are still in force and, by para 17, so require.

The respondent submitted that the impugned provisions of the Children's Television Standards did no more than had been done for many years by the Film Classification Standards; they restricted the times at which particular programs failing to achieve particular classifications might properly be transmitted. In each case, it was said, the propriety of the transmission depended upon an assessment by an expert statutory body of the suitability of the particular program for transmission at that

The appellant in reply conceded that the position in relation to the Film Classification Standards was

indistinguishable from that relating to the Children's Television

Standards; and that it made no difference in law that in the one case the body responsible for the classification of programs was different from, and in the other case was the same as, the body issuing the "standards". Whenever there was a requirement of classification of a program as a condition precedent to its being lawfully shown then there was a requirement amounting to censorship which was, upon the expressio unius principle, umplicity prohibited by the Act. Moreover, he said, the matter was of some substance. The effect of striking down the preclassification requirements would be to leave licensees free to form their own judgements upon whether particular programs met the required standards. For example, a licensee could determine for itself whether a program complied with CTS 2. If the Tribunal disputed his judgement then the matter could be raised for determination at the next licence renewal application. Alternatively, the licensee could, prior to transmission, obtain from a Court a declaration that the program did meet the CTS 2

'Censorship' is a strong term; it seems inappropriate to these provisions. A decision of the Tribunal not to classify particular material as suitable for a 'C program' wilil not prevent the licensee from transmitting that material. The decision merely means that the material may not be transmitted during any one of five particular hours, the five 'C time' hours,

of the week. Nor does a decision that a particular program fails

to meet the requirements of CTS 13 so as to be an "Australian

Children's Drama" prevent the licensee from transmitting that

material. It means only that its transmission will not count towards the performance of the licensee's obligation to show not

less than eight hours Australian Children's Drama each year.

The more important question, putting aside terminology, is whether it is correct to say that the provision by the Act itself of particular controls of content impliedly excludes a

preclassification requirement. The expressio unius principle is

"that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some

other course": see per Dixon J in The King v Wallis (1949) 78

CLR 529 at 550. In relation to a grant of power the principle depends for its application upon the expression of a legislative intent to confer a particular power in such terms as to indicate that, having addressed its mind to the subject matter, 1t had decided to go so far and no further; thereby implicity indicating an intention not to confer other powers, which might be thought

to fall within the subject matter but which were not specified.

The provisions of the legislation relied upon by the applicants as exhaustive specifications of the legislative will are all provisions which themselves require or prohibit or which empower some authority to require or prohibit the transmission of particular material. Whatever the relevance of

the principle to a case where the Tribunal purported to require

or to prohibit the transmission of particular material the existence of those statutory provisions cannot logically affect the exercise of a different power: the selection of material suitable for particular programs. And whatever be the extent of the power, the Tribunal was clearly empowered, by s.16(1)(d) itself, to have a role in program selection additional to its roles to prohibit, and to enforce the statutory prohibition of, material covered by the specific "censorship" sections of the Act. The problem cannot be resolved by the use of the expressio unius principle. Rather, the question is whether the limitations on the word "standards" contended for by the applicants may be geen as tending to serve the legislative purpose as ascertained

tT have difficulty in seeing what object of the Act would

be achieved by reading the word "standards" so restrictively as to prohibit the Tribunal, as subordinate legislator, regulating the times of transmission of particular programs by reference to the classifications adopted by an expert, statutory body; whether itself or some other. For the very reasons advanced in support of the applicants' first submission, certainty in operation is important, to licensees. It 1s better for a licensee to know in advance that his judgement as to the compliance of a particular program with the CTS 2 criteria is not shared by the Tribunal than to be faced with this grievance upon a renewal application months or years later. Moreover, 1f the purpose is to reserve

the "C time" for programs particularly appropriate for children,

this is best done by a mechanism judging suitability in advance

rather than by dealing with a transgressing licensee after the

The suggestion of a deciaration from a Court recognises

these considerations but it also raises the question whether any

legislative purpose would be served by a restriction forcing or encouraging the resolution of such an issue in such a manner. It 1s not immediately obvious that a Court is better equipped than is the Tribunal to determine whether a particular program is "well produced technically and artistically", "can be easily understood and appreciated by children" or "contributes to the social, emotional or intellectual development of children". Assessments such as those may more appropriately be made by a tribunal comprising a number of people with a variety of relevant expertise. I see nothing inconsistent with the purpose of the Broadcasting and Television Act and with its creation of the Tribunal as the major supervisory authority for broadcasting and television for notified standards to establish a system whereby that authority will determine such matters. In so doing, of course, the Tribunal is subject to the supervision of this Court in relation to any error of law, including the making of a decision not reasonably open to it: see Administrative Decisions

In my view there is no substance in the contention that the requirement of preclassification of C programs and Australian Children's Drama is beyond the power of the Tribunal in determining standards. [ft follows that both arguments relied

upon by the applicants fail and the application will be dismissed

Before parting with the matter I should make reference to the circumstances under which this application was argued. As mentioned, the decision of the Tribunal the subject of the application was published on 2 April 1984. The application for review was filed on 30 April, the last day of the period of 28

days available in the absence of an extension of time under s.11

of the Administrative Decisions (Judicial Review) Act.

For a reason which has not been explained, the application was not made returnable until 15 June. It could have been made returnable on any Friday subject only to five days notice to the respondent: see Federal Court Rules 0.5 r.12. On 15 June the Court was informed that the applicants desired to obtain an order for the suspension of the commencement of the operation of the new standards on 1 July. Directions were made for the filing of affidavits in relation to that application and the matter came again into the Directions List on 22 June. Only one ground was advanced for the stay: that the standards were

invalid. The proper consideration of the application for

suspension therefore involved the Court in forming some opinion on the merits of the Application itself. With some difficulty, it was possible to arrange a hearing on Friday 29 June, the last sitting day before the standards were due to commence. At the conclusion of that hearing, at which the matter was fully argued, I indicated my tentative view that the Standards were valid and I therefore refused the stay. It would have been more satisfactory, both to the Court and the parties, to have had the matter determined and a reasoned judgement given well before the critical date. It was unfortunate that 11 of the 13 weeks allowed by the Tribunal between the date of its decision and the commencement of the operation of the Standards were allowed to

pass before any steps were taken to bring on the matter for

The onus rests upon an applicant for relief, who seeks

the stay of the operation of an administrative decision until determination of the matter, to bring the matter before the Court at the earliest possible date. There is no presumption that statutory decisions are invalid; indeed, the presumption is the

reverse. Delay by an applicant, making impossible the proper

consideration of an argument of invalidity prior to the date when a decision is to become effective, is a factor which may

generally be expected to count heavily against the exercise of the discretion of the Court to grant a stay of the operation of

preceding pages are a true copy of the Reasons for Judgement