Herald-Sun TV Pty Ltd v Australian Broadcasting Tribunal

(a) declare that pars. C.T.S. 3(2)(b), C.T.S. 8, C.T.S. 9(2), C.T.S. 9(3), C.T.S. 10, C.T.S. 13(1), C.T.S. 13(4), C.T.S. 13(5) and C.T.S. 33 of Attachment A to Determination of Children's Television Standards are void;

(c) order that the costs of the proceedings before Wilcox J. be paid by the respondent.

May 21 Gibbs C.J., Mason, Wilson, Deane and Dawson JJ.

The question for decision on this appeal is whether certain provisions which form part of a Determination of Children's Television Standards made by the respondent, the Australian Broadcasting Tribunal ("the Tribunal") on 27 March 1984, in intended exercise of the powers conferred on it by the Broadcasting and Television Act 1942 Cth, as amended ("the Act"), were validly made. The appellants, a number of companies all of which hold commercial television station licences under the Act, made an application to the Federal Court for an order to review the determination under the provisions of the Administrative Decisions (Judicial Review) Act 1977 Cth, as amended, on the ground, amongst others, that the determination was not authorized by the power given to the Tribunal under the Act. The application came before Wilcox J., who dismissed it [13a] . An appeal to the Full Court of the Federal Court was dismissed by a majority (McGregor and Davies JJ., Morling J. dissenting) [1] . An appeal is now brought to this Court.

1. (1984) 2 F.C.R. 24. 2. (1984) 57 A.L.R. 309.

The questions in issue may be dealt with shortly. The functions of the Tribunal, which are set out in s. 16(1) of the Act, include:

(d) to determine the standards to be observed by licensees in respect of the broadcasting or televising of programs;

(f) to determine the hours during which programs may be broadcast or televised by licensees.

Section 17(1) of the Act provides: For the purpose of exercising its powers and functions under this Act, the Tribunal shall have power to make such orders, give such directions and do all such other things as it thinks fit. The provisions now in question are to be found in Attachment A to the Determination, which is headed "Children's Television Standards". By par. C.T.S.1(1), the words "C program" are defined to mean: a program which meets the criteria of suitability for children in C.T.S. 2 and has been so classified by the Tribunal under C.T.S. 3. Paragraph C.T.S. 2, which is headed "Criteria for C Programs", is in the following terms: A C program is one which:

(a) is designed specifically for children older than 5 years and younger than 14 years;

(d) can be easily understood and appreciated by children;

(f) contributes to the social, emotional or intellectual development of children;

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

(h) is not outdated in content or in technical or artistic production.

No challenge is made to the validity of that paragraph. Paragraph C.T.S. 3, which is headed, "Programs for C Time", provides, inter alia, as follows:

(1) A licensee may not transmit any programs except C programs during C time (4.00 to 5.00 p.m. Monday to Friday).

(2) During C time a licensee may transmit only programs:

(a) which are C programs as defined in C.T.S. 2; and

(b) representative samples of which have been classified by the Tribunal as complying with the C program criteria in C.T.S. 2.

Paragraph C.T.S. 3(2)(b) of Attachment A is the critical provision which is subject to challenge. The provisions of pars. C.T.S. 8, C.T.S. 9(2), C.T.S. 9(3), C.T.S. 10, C.T.S. 13(1), C.T.S. 13(4), C.T.S. 13(5) and C.T.S. 33 are challenged in so far as they are ancillary to or dependent upon par. C.T.S. 3(2)(b) but raise no separate question for consideration.

The power upon which the Tribunal primarily relies to support the Determination is that given by s. 16(1)(d). It is a power to determine standards. The ordinary dictionary meaning of the word "standard", in the relevant sense, is:

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: Shorter Oxford English Dictionary. A standard determined for a television programme must fix the quality or nature of the programme in such a way that both the licensee required to observe the standard and the court or other body called upon to decide whether it has done so can determine whether the programme answers the criteria set by the standard. That is not to say that the test should be entirely objective, for it may involve questions of taste, but it does mean that the standard is to be found in the determination itself. The power to fix a standard which is to be generally applied is quite different from a power to decide ad hoc, from case to case, whether a particular programme may be televised. A power of the latter kind is not a power to fix standards.

It is no doubt true, as the learned Solicitor-General submitted, that the meaning of the words of s. 16 must be construed in the context provided by the Act as a whole. However, as will be seen, there is nothing in the other provisions of the Act that leads to the conclusion that it is intended that the power to determine standards in s. 16(1)(d) should include a power to approve or disapprove of a particular programme: the indication is to the contrary. It is clear that if the words of s. 16(1)(d) are given their ordinary and natural meaning, that provision does not authorize a determination in the terms of par. C.T.S. 3(2)(b). A power to decide whether a particular programme should be classified as complying with a standard is, of course, not the same as a power to determine a standard. Nor is the making of par. C.T.S. 3(2)(b) authorized by s. 16(1)(f), or by s. 17(1). Section 16(1)(f) may empower the Tribunal to determine, for example, that only programmes which meet the standards determined for children's programmes should be televised within particular hours, but it does not go further and give the Tribunal power to decide that a particular programme should not be shown during those hours. Further, s. 17(1) enables the Tribunal to give such orders or directions as it thinks fit for the purpose of exercising its powers or functions, including the function of determining standards, but does not give the Tribunal power to give directions for the purpose of enforcing standards which have already been laid down, or for the purpose of substituting its judgment in a particular case for the application of a predetermined standard.

Other provisions of the Act support the view that when s. 16(1)(d) speaks of standards, it refers to general criteria fixed in advance by the Tribunal. The combined effect of s. 99(1) and s. 129(1) is that it is a term and condition of a licence that the licensee shall ensure, so far as possible, that the programmes are in accordance with the standards determined by the Tribunal. Failure to comply with a condition of the licence may lead the Tribunal to refuse to renew the licence (see s. 86(11B)(C)(iii)) and is an offence: see s. 132(1). These provisions assume that it is possible to determine whether a pre-existing standard has been observed. Further, the Act does contain in ss. 99(3), 101 and 131 powers of censorship which are in marked contrast to the powers given by ss. 16 and 17.

For these reasons, we have concluded that the provisions of the Determination which the appellants sought to review are invalid. Accordingly, the appeal will be allowed with costs, and the order of the Full Court of the Federal Court will be set aside. In lieu thereof the appeal to that Court will be allowed with costs and the decision of Wilcox J. will be set aside, and in lieu of his decision it will be declared that pars. C.T.S. 3(2)(b), C.T.S. 8, C.T.S. 9(2), C.T.S. 9(3), C.T.S. 10, C.T.S. 13(1), C.T.S. 13(4), C.T.S. 13(5) and C.T.S. 33 of Attachment A to the Determination are void, and it will be ordered that the said paragraphs be quashed and that the respondent pay the costs of the proceedings before Wilcox J.