In the matter of a reference under section 154 of the Australian Performing Rights Association Ltd v. Australian Broadcasting Commission [1982] FCA 272

Broadcasting and Television Act 1942 ss.32, 43, 64, 70, 7OB, 77, TGA.

IN THE MATTER of the Copyright Act 1968, (as amended) and IN THE MATTER of a reference under Section 154 of the

Australasian Performing Right Association Ltd. re Australian Broadcasting Commission.

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) ) NCW SOUTH WALES DISTRICT REGISTRY ) No. G171 of 1982 ) )

IN THE MATTER of the Copyright Act, 1968, (as amended) and

IN THE MATTER of a reference under Section 154 of the

Australasian Performing Right Association Ltd. re Australian Broadcasting Commission.

ORDER JUDGES MAKING ORDER: Bowen C.J., Franki and Sheppard JJ. WHERE MADE: Sydney DATE: 15 December, 1982. THE COURT ORDERS THAT:~ l. The questions referred to this Court by the Copyright

Tribunal pursuant to s.161 of the Copyright Act 1968 be answered as follows:- Question 1: is the Commission an agent or

Answer: No. Question 2: Are acts, being broadcasts by radio or

television which are done for the National Broadcasting and Television Service conducted by the Commission, done for the services of the Commonwealth within the meaning of sub-section 183(1)

SO NOR Renee gay TE UNI Me SIRE ee NER oe hy ODE, SRT TT CHIE IEE a" eT one Seay, "Ge a ms ererer tor aie es =

Ansver: ko. Quvesticn 3: Dces the Tribunal have jurisdiction to

make orders confirming or varying the licence scheme pursuant to s.154 of the Act?

Copyright Act, 1968. 2. The Australian Broadcasting Commission pay to Australasian Performing Right Association Lamited its

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NEW SOUTH WALES DISTRICT REGISTRY) No. G171 of 1982

IN THE MATTER of the Copyright Act, 1968, (as amended) and

Australasian Performing Right Association Ltd. re Australian

This is a case stated by the Copyright Tribunal ("the Tribunal") for the opinion of the Court pursuant to s.161 of the Copyright Act 1968 ("the Act") by which questions of law arising in proceedings before the Tribunal may be referred for

The Australasian Performing Right Association Limited (APRA) being or claiming to be a licensor within the meaning of s.136({1) of the Act formulated a licence scheme ("the licence scheme") setting out the classes of cases in which it, as licensor, was willing to grant a licence to the Australian

Broadcasting Commission ("the Commission") subject to certain

conditions including the payment of a licence fee calculated with

reference to the Commission's gross operational expenditure

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incurred in the provision of radio and television broadcasting services. APRA xeferred the licence scheme to the Tribunal pursuant to s.154(1) of the Act and purported to bring the scheme

into operation on 20 February 1981 pursuant to s-154(6)(a)-

Before the Tribunal the Commission took a preliminary objection to the Tribunal's jurisdiction to consider the scheme and to make orders confirming or varying it under s.154(4) on the ground that the Commission was an agent or instrumentality of the Commonwealth and as such was protected by s.183 of the Act from infringing copyright when broadcasting or televising items in which copyright subsists. The Commission further contended that, in the circumstances of the present case, s.183 provided an

exclusive code for the fixing by the Tribunal of the terms on

which the Commission may do acts comprised in a copyright.

The Tribunal heard argument on the preliminary objection and, on 11 June 1982, held that the Commission was not an instrumentality or agency of the Commonwealth and published reasons for that decision. The Tribunal refrained at that stage

from making any orders or answering any specific questions

The Tribunal has referred the following questions of law

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(1) Is the Commission an agent or instrumentality of the

{2) Are acts, being broadcasts by radio or television which

are done for the National Broadcasting and Television

(3) Does the Tribunal have jurisdiction to make orders

confirming or varying Fhe licence scheme pursuant to

Section 183 of the Act provides so far as is relevant:

"(1) The copyright in a literary, drematic, musical or artistic work or a published edation of such a work, or in a_ sound recording, cinematograph film, television broacast or sound broadcast, 218 not infringed by the Commonwealth or a State, or by a person authorized in writing by the Commonwealth or a State, doing any acts comprised in the copyright if the acts are done for the services of the Commonwealth or State.

(3) Authority may be given under sub-section (1) before or after the acts in

respect of which the authority 1s given have been done, and may be given to a person notwithstan@ing that he has a licence granted by, or banding on, the owner of the copyright to do the acts.

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c > 4. (4) Where an act comprised in a copyright has been done under sub-section (1), the Commonwealth or State shall, as soon as possible, unless 1t appears to the

Commonwealth or State that it would be contrary to the public interest to do so,

inform the owner of the copyright, as prescribed, of the doing of the act and shall --

furnish him with such information as to the doing of the act as he from time to time

(5) Where an act comprised in a copyright has been done under sub-section (1), the terms

for the doing of the act are such terms as are, whether before or after the act is done,

agreed between the Commonwealth or the State and the owner of the copyright or, in default

of agreement, as are fixed by the Copyright Tribunal.

Section 154 of the Act provides so far as is relevant:

licence scheme into operation, he may refer the scheme to the Tribunal.

(4) The Tribunal shall consider a scheme referred under this section and, after giving

to the parties to the reference an opportunit of presenting their cases, shall make suc

order, either confirming or varying the scheme, as the Tribunal considers reasonable in the circumstances.

(6) Where a licence scheme has been referred to the Tribunal under this section, the

licensor may do either or both of the following things:

(a) bring the scheme into operation before the Tribunal makes an order in pursuance

(b) withdraw the reference at any time before the Tribunal makes an order in pursuance

of the reference, whether the scheme has been brought into operation or not.

The effect of a licence scheme under s.154 is that a

person to whom the scheme applies has the benefit of it.

The extent of the words "a licence scheme", referred to

in s.154, 1s dealt with in s.136 and extends to the copyright in

a literary, dramatic or musical work or a sound recording. It

does not appear to extend to ali the categories referred to in

s.183(1), for example to an artistic work or to the making by the Commonwealth of a cinamatograph film for the service of the Crown

in, for example, the Attorney-General's Department.

The case for the Commission was put upon the basis that

the Commission was equated with the Commonwealth in s.183 and

that broadcasting by the Commission was broadcasting "for the

services of the Commonwealth". It was submitted that any

television or sound broadcasting by the Commission was protected

by s.183(1). It was not suggested that the Commission was a person authorised 1n writing by the Commonwealth or that it was

necessary to examine each item broadcast individually.

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ty > 6. | A. Is the Commission included in the word "Commonwealth" in ' s.183; and B. Does a television or sound broadcast by the Commission, without more, fall within the words "acts ... done for

We return now to the specific questions we have been asked.

We were asked to consider whether the Commission is "an agent or instrumentality of the Commonwealth" for the purposes of s.183. It is not clear to us that this is the question which has to be answered. The question arising on the words of that

section we have formulated as question A. Some legislation, when

dealing with the Commonwealth, makes it clear that word "Commonwealth" includes references to an authority of the

Commonwealth. For example, s.125 of the Patents Act 1952 uses

words in relation to patents equivalent to those appearing in

s.183(1) of the Act, but s.132 of the Patents Act provides that

+». the references to the Commonwealth include references to an

authority of the Commonwealth ...". However we will approach the

question in the broad way in which it has been presented.

There is a number of cases dealing with the question

whether a corporation is what may be called an instrumentality or

as it 1s sometimes called an emanation by which the Commonwealth

operates. In Inglis v. Commonwealth Trading Bank of Australia

(1969) 119 C.L.R. 334, the High Court considered whether that bank fell within the description in s.75(3) of the constitution

as being "sued on behalf of the Commonwealth". A majority of the

Court held that it was. Kitto J., with whose judgment Windeyer J

and Barwick C.J. , in substance, agreed, said (at pp.337-338):

"The decisive question is not whether the activities and functions with which the respondent is endowed are traditionally governmental in character, though their possession of a traditional or generally

accepted governmental character may well help un the ascertainment of the legislative

antention. The question is rather what intention appears from the provisions relating

to the respondent in the relevant statute: 1s it, on the one hand, an intention that the Commonwealth shall operate in a particular field through a corporation created for the purpose; or is it, on the other hand, an intention to put into the field a corporation to perform its functions independently of the Commonwealth, that is to say otherwise than as a Commonwealth instrument, so that the concept of a Commonwealth activity cannot

realistically be applied to that which the corporation does?"

Corporation (1946) 73 C.L.R. 70 the High Court dealt with the

question whether land which was vested in a statutory corporation

came within the words "land the property of His Majesty" and thus

was exempt from rates. Five of the six members of the Court took

the view that the land did not come within the words "the

property of His Majesty". Latham C.J., (at pp.75-76), 1n dealing

1 OVE EAT RAST EST rR edna TT I FATES RRS IAS REPUTE" MINT BN RNG NEES SINTER Eee re

with functions which were governmental in character pointed out that some functions were inalienable functions of government but that other governmental functions were made such by statute. In a number of cases the High Court has had to consider somewhat similar questions but no useful purpose would be served by dealing with them 1n any detail. At p.76 the Chief Justice posed the relevant question in various ways including "Were they

Government servants doing the work of the Government?"

In Superannuation Fund Investment Trust v. Commissioner

of Stamps (S-A.) (1979) 53 A.L.J.R. 614, the High Court

considered whether the Superannuation Fund Investment Trust was the Crown in the sense that it was to be regarded as equated with

the Crown in right of the Commonwealth or as an instrumentality

or agent of the Crown in right of the Commonwealth in certain

activities. Stephen and Aickin JJ. held it was not. Barwick

C.J. took a different view. Stephen J. (at p.619) said that he

+++ placed most weight upon the entire independence of the

members of the Trust in relation to their investment function".

"Whether the appellant is, or represents, the Crown an right of the Commonwealth depends upon the

"Of all the kinds of provisions that may be relevant to the determination of whether a

statutory body (whether corporate or not) is the Crown, the capacity of the executive

directly by instruction or direction or indirectly by power to remove otherwise than

for misconduct or incapacity those in control of its operations), and the nature of its

At p.622 Mason J. held that the Trust was the Crown in

right of the Commonwealth and he said that "although the Trust is

a separate corporate entity the control which the Crown has over its membership and its activities shows that it is the alter ego of the Crown". He noted, inter alia, that 1ts members were appointed and liable to removal by the Executave Government. Barwick C.J. reached the same conclusion that the Trust was "a manifestation of the Crown in right of the Commonwealth". It is clear from the judgment in this case, as in others, that the question 1s to be determined by an analysis of the relevant legislation.

In Townsville Hospitals Board Vv. Council of the City

of Townsville (1982) 56 A.L.J.R. 789 it was held the Townsville

Hospitals Board was not entitled to the immunity of the Crown.

ee eee eee many functions formerly regarded as matters of private concern are now carried out by

instrumentalities of government and the question whether the functions in question are traditionally

or peculiarly governmental is likely to be increasingly unhelpful in deciding whether the body

formed to carry out those functions enjoys the privileges and immunities of the Crown".

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"It has more than once been said in this Court that 'there is evidence of a strong tendency to regard a

statutory corporation formed to carry on public functions as distinct from the Crown unless

parliament has by express provision given it the character of a servant of the Crown': Launceston Corporation Vv. The Hydro-Electric Commission

Electricity Commission of Victoria v. City of South Melbourne (1968) I18 C.L-.R. 504, at sine:

All persons should prima facie be regarded as equal before the law, and no statutory body should be

accorded special privileges and immunities unless it clearly appears that it was the intention of the

legislature to confer them. It 1s not difficult for the legislature to provide in express terms

that a corporation shall have the privileges and immunities of the Crown, and where it does not do

so it should not readily be concluded that it had the intention".

We have to determine the question by examining the Act

constituting the Commission. This 1s the Broadcasting and

Television Act 1942. The learned President of the Tribunal

analysed the Act in detail and we see no useful purpose in

repeating his analysis in detail. He pointed out (at pp.12-13):

whether the corporation fulfills a governmental or non-governmental function; the capacity of

the Government to control its activities; financial autonomy; the right of appointment

and dismissal of the members of the body of its staff by the Government; whether it has

duties to furnish information or accounts to the Government; and its power over assets in

It is clear that the Broadcasting and Television Act

gives the Commission a great deal of autonomy and it cannot be

Mae SMI OE ee SRS A TTY ULE AT IT Sir CARS PRT ICI, PP SERIO OL LOT

said that broadcasting and television are inalienable government functions. The Broadcasting and Television Act has a number of provisions which are not unusual in statutory corporations, for example, funds provided by the government, audit by the Auditor General, and the obligation to report to Parliament. The Commission is constituted by eleven members appointed by the Governor-General who hold office subject to good behaviour for a fixed period. There 1s no power to terminate the appointment of a member of the Commission other than for misbehaviour (s.32). The Commission appoints the General Manager who is the Chief Executive Officer and holds the office on such terms and conditions as the Commission determines (s.43(1)). It may also appoint other officers (s.43(2)) who are not except, in special circumstances, officers of the Australian Public Service

Ministerial control which is not also applicable to commercial

stations. Section 116 provides that the Commission may determine

to what extent and in what manner political matter or

controversial matter will be broadcast or telecast by the

Commission. Sections 64, 77 and 78A of the Broadcasting and

Television Act deal with the only other relevant aspects of

matter broadcast or televised by the Commission which are subject

to Ministerial control. Under s.64 the Commission 1s required to

broadcast or televise from such stations "".. as the Minister

specifies, any matter the broadcasting or televising of which is

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directed by the Minister in writing as being in the national

interest." Under s.77 the Minister may "... by telegram or in writing prohibit the Commission from broadcasting or televising any matter, or matter of any class or character, specrfied in the

notice, or may require the Commission to refrain from

broadcasting or televising any such matter". Section 78A requires the Minister, if he acts under s.64 or 77, shall within 7 sitting days "... report the same in writing to both Houses of the Parliament and shall give the reasons for such direction, prohibition or requirement, as the case may be."

It is clear that, so far as concerns programmes, the Commission is subject to very little governmental control.

Similarly in relation to its administrative activities, it is

also subject to minimal control. It depends, of course, for the provision of funds substantially upon, ".. such monies as are appropriated by the Parliament for the purposes of the Commission" (s.68(1)). Section 70 provides that the monies of the Commission shall be applied only in payment of amounts properly payable in the performance of its functions and in payment of remuneration and allowances payable to Commissioners. Otherwise

the Commission may administer its affairs substant1rally as it

sees fit. There 1s a limitation on the Commission entering into

In our opinion the Commission does not fall within the

word "Commonwealth"; nor is 1t an agent or instrumentality of the

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If it did fall within s.183 the question, which we have

called question B, would then arise whether television broadcasts

or sound broadcasts were acts done "for the services of the

Commonwealth" within s.183(1). This question is substantially

Corporation v. Ministry of Health (1965) A.C. 512 where the

question arose whether the supply of medicine to the National

Health Service Hospitals for use in the treatment of patients,

fell within the expression "for the services of the Crown" and so

fell within a provision in s.46(1) of the Patents Act, 1949

(U.K.) permitting the use of patented inventions by any

Government department for the services of the Crown.

Government department within the meaning of that section. It

thus became only necessary to examine the words "the services of

the Crown". It was held by a majority that the use under

consideration was for the services of the Crown but Lord Reid (at

p-534) pointed out that "... nationalised industries, for example, are not services of the Crown". His Lordship (at p.535) expressed the view that "... the natural meaning of use for

the services of the Crown 1s use by members of such services in

TOPS ES ARTES SEM TIE OEE ANGE TOL LESS RP ANT EEE PY MS NEE ES TRRSLD OY TSP BAT I MOLE TEMS I

programmes by the Commission constitutes a "service" in the sense that it falls within the words "Postal, telegraphic, telephonic and other like services" used in s.51l(v) of the Constitution (Jones v Commonwealth (No.2) (1965) 112 C.L.R. 206).

It does not follow that because broadcasting by the

Commisszo0n is a "service" within s.51(v), any broadcasting

undertaken by the Commission is for the services of the Crown. Indeed, 1£ the Commission is not the Crown, 1t would seem that it could not properly be said that its broadcasting was "for the

services of the Crown". If the Commission is the Crown, then it

could be said its broadcasting was "for the services of the

Crown" if the view of the majority of the House of Lords in

Pfizer Corporation Vv Ministry of Health (1965) A.C. 512 be

accepted for Australian conditions. This was that the phrase

"for the services of the Crown" is not restricted to the

traditional notion that it relates to services used by the Crown

or its servants but in modern tiumes extends also to services

provided by the Crown or its servants to members of the public.

In view of our conclusion that the Commission 1s not the Crown it

1s unnecessary to express a concluded view on this point.

As we have said the case was put for the Commission upon

the basis that each individual act of the Commission did not have

to be examined under s.183 to ascertain whether a particular act,

for example, the broadcasting of a sound recording, constituted

an act done for the services of the Commonwealth but that any act

done by the Commission, which fell within s.183, was always an

We are by no means satisfied that each act should not be examined separately. If reliance 1s placed on s.183 the Commonwealth is required as soon as possible after doing an act within that section, unless it appears to the Commonwealth that it would be contrary to the public interest to do so, to inform the owner of the copyright of the doing of the act and furnish him with such information as to the doing of the act as he from time to time reasonably requires. Section 183(5) provides for the terms for the doing of the act to be such as are agreed

between the Commonwealth and the owner of the copyright or, in

default of agreement, as is fixed by the Copyright Tribunal. One can visualise that, in many instances, even in a very short period, a television or sound broadcast by the Commission may

involve acts which, in the absence of some authorisation, would

infringe a great many copyrights owned by a number of owners. It seems unlikely that Parliament intended to place such broad obligations on the Commonwealth. In addition one part of a

broadcast may not be of a kind which could be said to be done for

the services of the Commonwealth, if for no other reason, because

We answer the questions referred by the Tribunal as

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Question 3. Yes, assuming the licence scheme falls within the

We would order the Commission to pay to the respondent

I certify that this and vhe preceding pages avo a t.ue Copy of the ! Reasons for Judgment here. ¢ fhis Honour: the Chief Judge, Sir N:gel Bowen ano hs Venovr Me Jushee Frank'

NEW SOUTH WALES DISTRICT REGISTRY No. G 171 of 1982

IN THE MATTER of the Copyright Act, 1968 (as amended) - and

IN THE MATTER of a reference under Section 154 of the Australasian Performing Right Association Ltd. re Australian Boradcasting Commission

This is a case stated by the Copyright Tribunal pursuant

to s.161 of the Copyright Act 1968 ("the Act"). The questions

raised by the case for the decision of the Court are:

"1, Is the Commission an agent or instrumentality of the Commonwealth for the purposes of Sec.183 of the Act?

2. Are acts, being broadcasts by radio or television which are done for the National Broadcasting and Television Service conducted by the Commission, done for the services of the Commonwealth within the meaning of sub-section 183(1) of the Act?

3. Does the Tribunal have jurisdiction to make orders

confirming or varying the licence scheme pursuant to Sec. 154 of the Act?"

The Act referred to is the Copyright Act. The Commission is the Australian Broadcasting Commission.

The facts of the matter may be shortly stated. The above named Australasian Performing Right Association Limited ("APRA") is or claims to be, a licensor within the meaning of s.136(1) of the Act. "Licensor" is there defined to include, in relation to licences in respect of a literary, dramatic or musical work, the owner or pros- pective owner of the copyright in the work or any body of persons acting as agent for the owner or prospective owner in relation to the negotiation or granting of such licences. "Licence" is also defined in s.136(1). It means a licence granted by or on behalf of the owner or prospective owner of the copyright in a literary, dramatic or musical work, or of the copyright in a sound recording, being in the case of a literary, dramatic or musical work, a licence to per- form the work or an adaptation thereof in public, to broadcast it, to make a sound recording or film of it or to cause the work to be transmitted to subscribers to "a diffusion service",

APRA formulated a licence scheme, which expression is

defined in s.136(1) of the Act to mean a scheme formulated by a licensor or licensors and setting out the classes of cases in which the licensor is willing to grant licences and the charges (if any) subject to payment of which, and the con- ditions subject to which, licences would be granted in those classes of cases. The scheme formulated by APRA set out the classes of cases in which it, as licensor, was willing to grant a licence to the Commission together with the conditions including the payment of a licence fee cal- culated with reference to the Commission's gross operational expenditure upon which it wovld grant the licence. APRA referred the scheme to the Tribunal pursuant to s.154(1) of the Act. Sub-sections (1) and (2) of s.154 are as follows:

(b) such organizations or persons (if any) as apply to the Tribunal to be made parties to the reference and, in accordance with the next succeeding sub-section, are made parties to the reference."

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The remaining sub-sections of s.154 are not of direct relevance to the determination of the questions here to be decided. For completeness, however, I mention sub-sections (4), (5), (6) and (7). Sub-section (4) provides that the Tribunal shall consider a scheme referred under the section and shall make such order, either confirming or varying the scheme, as the Tribunal considers reasonable in the circumstances. Sub-section (5) provides that an order of the Tribunal under the section may be made so as to remain in force either indefinitely or for such period as the Tribunal thinks fit. Sub- section (6) provides, inter alia, that, where a licence scheme has been referred to the Tribunal under the section, the licensor may bring the scheme into operation before the Tribunal makes an order in pursuance of the reference. APRA purported to bring the scheme into operation on 20 February, 1981, pursuant to this provision. Sub- section (7) provides that if the scheme is not brought into operation before an order is made, the scheme as confirmed or varied by the order comes into operation forthwith upon the making

Until 1 July, 1979, APRA licensed the Commission to broadcast by television or radio the works owned by or controlled by APRA in return for a remuneration fixed by reference to Australia's population. Since that date under interim arrangements entered into between APRA and the Commission without prejudice, the permission to use APRA's works has been extended. The rate of remuneration formerly payable has continued to apply.

Before the Tribunal the Commission took a preliminary objection to jurisdiction on the ground that the Commission was an agent or instrumentality of the Commonwealth and as such was protected by s.183 of the Act from infringing copyright when broadcasting or televising works in which copyright subsists. The Commission further contended that in the circumstances of the present case s.183 provided an exclusive code for the fixing by the Tribunal of the terms on which the Commission may use and broadcast works the subject of a copyright.

Section 183 of the Act, so far as it is relevant, is as follows:

"(1) The copyright in a literary, dramatic, musical or artistic work or a published edition of such a work,

or in a sound recording, cinematograph film, television broadcast or sound broadcast, is not infringed by the

"Commonwealth or a State, or by a person authorized in writing by the Commonwealth or a State, doing any acts comprised in the copy- right if the acts are done for the services of the Commonwealth or State.

(3) Authority may be given under sub-section (1) before or after the acts in respect of which the authority is given have been done, and may be given to a person notwithstanding that he has a licence granted by, or binding on, the owner of the copy- right to do the acts.

been done under sub-section (1), the terms for the doing of the act are such terms as are, whether before or after the act is done, agreed between the Commonwealth or the State and the owner of the copy- right or, in default of agreement, as are fixed by the Copyright Tribunal."

Reference should also be made to s.7 of the Act which provides that, subject to Part VII, the Act "binds the Crown but nothing in the Act renders the Crown liable to be prosec- uted for an offence", Section 183 of the Act is in Part VII. Sections 136 and 154 are in Part VI.

The Tribunal heard argument on the preliminary objection. On 11 Jume, 1982, it decided that the Commission was not an instrumentality or agency of the Commonwealth and published reasons for that decision. The Tribunal refrained at that stage from making any orders or answering the questions

relating to the preliminary objection. The reasons of the

Tribunal are annexed to the case which it has stated.

A number of matters, some in my view involving difficult questions, were canvassed in argument. But, by reason of the clear view I have as to the correct answer to question 1, none of these arises for decision. I propose to proceed by determining what I think the answer to that question should be. When that has been done I shall mention some other matters unrelated to its determination.

Question 1 raises for decision the question of whether the Commission is an agent or instrumentality of the Commonwealth for the purposes of s.183 of the Act. It is the Commission's contention that it is. The contrary is put by APRA. In the light of the provisions of s.183 I would not have thought, with respect, that this question was necessarily apt. The essential words in s.183(1) are, "if the acts are done for the services of the Commonwealth". It seems to me that there is ground for the view that the expression "services of the Commonwealth" does

not include the "services" of a body corporate which

is an agent or instrumentality of the Commonwealth. It is to be observed that, although s.125 of the Patents Act 1952 makes a similar provision to s.183(1) in relation to patents, references to

the Commonwealth include references to an authority of the Commonwealth; see s.132.

This matter was not pursued in argument and I express no opinion on it. The fact that it was not argued was apparently because of dicta in the majority speeches of the House of Lords in Pfizer

I would not, however, have thought them relevant to the question of whether "services of the Commonwealth" extended to services of a body corporate which was an instrumentality or agency of the Commonwealth. In my opinion they have a different relevance which I shall later mention. I should add that we were informed that the

Commonwealth had not purported, pursuant to s.183(1)

the position would be if such an authorisation were

made or purported to be made I do not pause to consider. I return to the question of whether the Commission

is an agent or instrumentality of the Commonwealth.

A first step in reaching a conclusion is to consider a

number of the provisions of the Broadcasting and Tele-

vision Act 1942("the Broadcasting Act") pursuant to Part III of which the Commission is established. Before mentioning sections in that Part it is relevant to note that the Broadcasting Act deals with a number of important Matters wnconnected with the establishment and functions of the Commission. These are the establishment of the Australian Broadcasting Tribunal (Part II), the establish- ment of the Special Broadcasting Service (Part IIIA), the grant of broadcasting and television licences (Part IIIB) and the licensing and regulation of the Commercial Broadcasting Service (Part IV).

Section 30 provides that there shall be a Commission to be known as the Australian Broadcasting Commission. It is established as a boty corporate with perpetual succession and a common seal, and may acquire, hold and dispose of real and personal property. It is capable of suing and being sued in its corporate name. By s.31 the Commission is to consist of not more than eleven and not less than nine Commissioners, two at least of whom are to be women. The Commissioners are appointed by the Governor- General as part-time Commissioners. One is to be appointed Chairman and another Vice-Chairman. By s.32 a Commissioner holds office for such period, not exceeding five years, as is specified in his instrument of appointment. Commissioners are eligible for re-appointment and hold office subject to good behaviour. Section 37 provides for a number of specified events the happening of any one of which obliges the Governor-General to declare that the office of a Commissioner is vacant. Examples of events specified in

the section are a Commissioner becoming permanently incapable

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of performing his duties and being absent, except on leave of absence granted by the Minister, from all

meetings of the Commission held during two consecutive

By s.43 the Commission is to appoint a general manager who shall be the chief executive officer of the Commission and shall hold office on such terms and conditions as the Commission determines. The Commission is to appoint such other officers and engage such temporary employees as it thinks necessary. The officers of the Commission are to constitute "the service of the Commission". By s.43(6) the terms and conditions of employment of officers and

temporary employees appointed in pursuance of the section are such as are determined by the Commission with the approval of the Public Service Board. Sections 48, 48A, 49 and 50 provide for promotion of officers. An appeal lies against a promotion to a promotions appeal board known

as the Australian Broadcasting Commission Promotions Appe 1

Board, The Chairman of the Board is to be appointed

by the Governor-General. The Board otherwise consists

of an officer appointed by the Commission and an officer nominated by the organisation (i.e. industrial organisation) of which it is appropriate for a person occupying the vacant position concerned to be a member. Sections 56,

57 and 58 provide for disciplinary action in the event of misconduct. Section 56 specifies a number of categories of misconduct and enables the Commission to take various courses of action in respect of the commission of such con- duct. An appeal lies to a disciplinary appeal board known as the Australian Broadcasting Commission Disciplinary Appeal Board. It is constituted pursuant to s.58. Its constitution is broadly similar to that of the Promotions Appeal Board except that the chairman must be a person who is or has been a magistrate of a State or Territory. The third member of the Board is to be an officer elected by

By s.59 the Commission is to provide, and shall broadcast or televise from stations provided in accord- - ance with s.76, adequate and comprehensive programmes "and shall take in the interests of the community all such measures as, in the opinion of the Commission, are conducive to the full development of suitable broadcast~ ing and television programmes", Where the Commission considers it necessary for the proper carrying out of its objects or for any purpose incidental thereto, the Commission may make arrangements for the holding of, or may organise or subsidise any public concert or other public entertainment. By s.60 the Commission is empowered to compile, prepare, issue, circulate and distribute such papers, magazines, periodicals, books, pamphlets, circulars and other literary matter as it thinks fit. It may also make, promote, circulate and distribute films and sound recordings of or relating to its programmes and also public concerts and other public entertainment which it has organised

or subsidised. It may determine charges payable for its

publications, films and recordings "with a view to raising as much net revenue as is practicable, having regard to the proper performance of its functions and to the matter or activity concerned".

By s.61 the Commission may acquire by lease or purchase any land, buildings or other property which it thinks necessary for its purposes, and may also sell, lease or otherwise deal with any property, rights or privileges of the Commission,

It is to provide such studios, offices and other accommodation as are necessary for the performance of its powers and functions under the Act.

"Subject to this Act, the Commission shall broadcast or televise free of charge from all the national broadcasting stations or national television stations, or from such of them as

the Minister specifies, any matter the broad- casting or televising of which is directed by the Minister in writing as being in the national interest"

By s.65 the Commission is not to televise or broad-

cast advertisements. By s.66 it is to broadcast daily

from all national broadcasting stations regular sessions of news and information. It is to employ an adequate staff both in Australia and overseas for the purpose of collecting the news and information to be broadcast.

By s.6/7 the Commission is to endeavour to establish and utilise groups of musicians for the readition or

Section 68 provides that there are payable to the Commission such moneys as are appropriated by Parliament for its purposes. By s.70 the moneys are to be applied only in payment of amounts properly payable in the perform- ance of its functions and in payment of remuneration or allowances payable to the Commissioners. By s.70B the Commission is not, without the approval of the Minister, to enter into a contract involving the payment or receipt of an amount exceeding $250,000 or such higher amount as may be prescribed.

Section 71 provides for the keeping of proper accounts

and s.71B for the auditing of those accounts by the Auditor-General.

By s.72 the Commission is not subject to taxation under any law of the Commonwealth or of a State or

By s.73 the Commission is to provide and operate all the technical equipment required for the purposes of per- forming its functions. The Minister is to arrange for

the provision and operation, for the purposes of the per-

formance by the Commission of its functions, of transmitting

stations and certain other categories of station specified

(£) Miscellaneous Section 77 and s.78A provide as follows:

"77, Subject to this Act, the Minister may, from time to time, by telegram or in writing, prohibit the Commission from broadcasting or televising any matter, or matter of any class or character, speci- fied in the notice, or may require the Commission to refrain from broadcasting or televising any such matter."

"78A. Where the Minister has given a direction under section 64 or has prohibited the broad- casting or televising of any matter or made any requirement under section 77, he shall, within

7 sitting days of giving such direction or notify~ ing such prohibition or requirement, report the same in writing to both Houses of Parliament and shall give the reasons for such direction, prohib- ition or requirement, as the case may be."

Finally, s.78 provides that the Commission shall, as soon as possible, but not later than six months after the expiration of each financial year prepare a financial state- ment and forward it, together with a report on the operations of the Commission during that year, to the Minister for pres- entation to both Houses of Parliament. The report is to include, inter alia, particulars of each transmission arranged at the written direction of the Minister in pursuance of s.64 and each case in which the minister has exercised the powers conferred on him by s./77. The report is also to include

whether the receipt and expenditure of moneys, and the acquisition and disposal of assets, by the Commission during the year have been in accordance with this Act",

That completes my account of the relevant statutory provisions. The question of whether the Commission is an

instrumentality or agency of the Crown is to be determined

by a consideration of those provisions with a view to

determining Parliament's intention as to what the position was to be. Assistance is to be found in a multiplicity of cases decided here and in England many of which were referred to in argument. But in the end it is a matter of looking to the words which

of consideration which will point, or not point, to a particular body being the Crown or one of its agencies.

But because each case depends upon its own circumstances,

Superannuation Fund Investment Trust v. Commissioner of

Stamps (S.A.) (1979) 53 A.L.J.R. 614 Stephen J. said (p.619):

"I have not expressed these various considerations (the considerations to be taken into account in determining whether a body is the Crown) in terms of specific 'tests' although the precedent authorities provide fertile ground for the development of the concept of such 'tests'. I have, of course, had regard to those authorities, while recognizing that the primary task is that of statutory interpretation rather than any mechanical application of supposed tests."

In the reasons of the Tribunal in the instant case pre~

I would respectfully agree with that list as being, subject to one matter, an exhaustive list of the matters it is relevant to take into account in the present case. I would add a further matter relied upon by senior counsel for APRA before us, namely, the question of whether the prop- erty of the Commission is held for the Commonwealth. Although it is not always decisive, the question of

control is usually of importance. It was important to Stephen J. in the Superannuation Fund Investment Trust case earlier cited. After the passage quoted from his judgment he said that he had placed most weight upon the entire independence of the members of the Trust in relation to

their investment function. His Honour added, "This appears

to me of considerable importance and to have been so treated

in many of the precedent cases" (p.619). Amongst the cases his

Honour cited were Grain Elevators Board (Vict.) v, Dunmunkle

Corporation (1946) 73 C.L.R. 70, and Inglis v. Commonwealth

Trading Bank of Australia (1969) 119 C.L.R. 384. In the former case Latham C.J. said (p.76):

"Where persons or an incorporated authority are subject to direct ministerial control so that they act under the direction of a Minister, such persons or authorities act on behalf of the Crown and any provision, whether express or implied, for Crown exemption is applicable to them: eee woe tee

But if a board is a body independent of the Government with discretionary powers of its own, so that it is not a mere agent of the Government, then such a body does not represent the Crown."

In the Superannuation Fund Investment Trust case four

judges were equally divided on the question of whether the Trust was an agency of the Crown. Barwick C.J. (supra at p-615) and Mason J. (supra at p.622) thought that it was the Crown. Stephen J. (supra at p.619) and Aickin J. (supra

at p.627) thought that it was not. But the judgment of Mason J. (in whose judgment on the point Barwick C.J. agreed) does not suggest that he did not regard control as an

important factor. Amongst other things he said (p.622):

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"Although the Trust is a separate corporate entity the control which the Crown has over its membership and its activities shows that it is

an alter ego of the Crown. Thus its members are appointed and liable to removal by the Executive Government, it is bound to furnish information to the Treasurer at his request and it must submit its annual report and financial statements to the Treasurer after they have been audited by the Auditor-General. The Trust, in determining the investment policy which it will pursue within

the prescribed investments which it is authorized to make (see s.42(2) and (4)), is free of directions by the Treasurer and the Government, but this in itself does not show that it has been established as a body independent of the Crown."

Counsel for the Commission concentrated upon a passage in the

judgment of Kitto J. in Inglis v. Commonwealth Trading Bank

of Australia (supra at pp.337-338) where his Honour, who wrote the leading judgment, said:

"The decisive question is not whether the activities and functions with which the respondent is endowed are traditionally governmental in character, though their possession of a traditional or generally accepted governmental character may well help in the ascertainment of the legislative intention. The question is rather what intention appears from the provisions relating to the respondent in the relevant statute; is it, on the one hand, an intention that the Commonwealth shall operate in a particular field through a corporation created for the purpose; or is it, on the other hand, an intention to put into the

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"field a corporation to perform its functions independently of the Commonwealth, that is to

say otherwise than as a Commonwealth instrument, so that the concept of a Commonwealth activity cannot realistically be applied to that which the

He submitted that the Act here disclosed an intention that the Commonwealth should operate in the broadcasting and television field through a corporation, that is the Commission, created for the purpose. Thus it was the Commonwealth through the agency of the Commission which was engaging in the various functions of broadcasting and television which are provided for in the Broadcasting Act.

Counsel seemed to say that the way the matter was put by Kitto J. was a way somewhat different from the way the question has been posed in other cases. I do not agree

that that is so and it is to be observed that Stephen J. in

the Superannuation Fund Investment Trust case did not regard

the case as at all in any different category from many others. The other type of corporation posed in the test propounded

by Kitto J. is a corporation intended to perform its

functions independently of the Commonwealth, "that is to say

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It is to be observed that in his analysis of the problem Kitto J. goes on to take into account the same sort of considerations, particularly con- trol, as are taken into account in many other authorities. It will be remembered that Stephen J. referred to his Honour's judgment in support of his view that control was a matter of "considerable importance", The passage from the judgment of Kitto J. to which his Honour refers is one where he demonstrates that in the event of a disagreement concerning policy the Commonwealth Trading Bank might eventually have to surrender to the wishes of the Governor-General acting with the advice of the Executive Council (p.340).

There is not here, as there is in some statutes providing for the incorporation of a statutory authority, any power vested in the Minister to control the activities of the Commission. I say that not unmindful of the provisions of ss.64 and 77 of the Act of which I shall say more a little later. The

Commissioners are appointed for a term and may not be

removed from office except on grounds of bad behaviour or the specific grounds mentioned in

s.37 earlier referred to. The Commission is empowered to appoint the general manager of the Commission. He is to be the chief executive officer of it. The Commission has wide powers

and discretions to discharge the duties cast upon it by the Act. The staff it employs are employees of the Commission and not of the Commonwealth.

That remains the position notwithstanding that they cannot be appointed without the approval of the Public Service Board (s.43(6)).

Subject to what needs to be said about ss.64 and 77 of the Broadcasting Act, none of the functions and powers of the Commission is subject to control by the Minister or the Executive Council, nor is any of its staff subject to that control in any of the tasks they undertake. In my opinion ss.64 and 77 have a wery limited operation and their presence

statement just made. The first concerns matters which are directed by the Minister in writing "as being in the national interest". I would not wish to provide any exhaustive definition of what may be included as being in the national interest, but, in general terms, I would think that the matters would be limited to news or information concerning threats to the security of the country, whether from an internal or an external source, and natural disasters or threats to the general health of the community due to some catastrophe. Section 77 confers a wider power. Nevertheless it subjects the Commission, not to instruction as to what it shall broadcast or televise, but what it may not broadcast or televise.

It seems to me, when considering the Commission's argument based on these sections, that one should not overlook that the Act in Part III is concerned to set up a Commission which is designed, generally speaking,

to provide broadcasting and television services throughout

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is democratic and in which the media, not only the press, enjoy a freedom to disseminate news and make comment on news without the restriction which exists in countries which are not so fortunate. The Broadcasting Act should be construed with it in mind that that is the kind of society which we have. Section 77 does confer upon the Minister a substantial power, but in the circumstances it is one which he might not be expected to exercise very often and then only in very serious circumstances, It is to be remembered that s.78A of the Broadcasting Act requires the Minister to notify action taken under either section to each House of Parliament within seven sitting days after action has been taken. Section 78(3) requires the Minister to include in his report to

Parliament particulars of each transmission arranged

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at the written direction of the Minister in pursuance of s.64 and of each case in which the Minister has exercised the powers conferred on him by s.77.

For the above reasons I do not consider that ss.64 and 77 require the view to be taken that the Commission is under the control of the Minister,

The authorities show that a body, subject to bother considerations, will be more likely to be regarded

as the Crown or an instrument thereof if it is perform- ing an ordinary function of government. That was a matter referred to in the judgment of the Acting Chief Justice in Bradken Consolidated Limited v. Broken

Hill Proprietary Co. Limited (1979) 145 C.L.R. 107.

His Honour referred to the fact that it had always been recognised in Australia that the conduct of railways was a function of the Governments of the

"That fact is by no means conclusive, for a body which discharges public functions is not necessarily an agent of the Crown, but 1t does provide some assistance to the view that the Commissioner is acting on behalf of the Crown,"

The matter was referred to also by Kitto J. in his Judgment in the Inglis case. He did not count it as at all decisive. I refer to the opening words of that portion of his gudgment which I have earlier cited. It was for that reason that I did not put it te the forefront of the considerations which I took anto account in F. Sharkey & Co. Pty, Limited v. Fisher (1980) 33 4.L.R. 173. I refer also to the gudgment of Gibbs C.J. in Townsville Hospitals Board v. Council of the City of Townsville 56 A.L.J.R. 789 at

p.79l. Nevertheless, if one finds that the functions and

powers of a statutory authority are not traditionally or historically those of government, that provides a further reason why one would not find 1t to be the Crown or one of its ianstrumentalities.

The Commission was first eStablished in 1932. By then, broadcasting, although still in its infancy, was in existence being conducted by persons in their private capacities. Thus broadcasting has always

television which was introduced in 1956. There is no warrant for taking the view, at least in Australia, that the provisions of broadcasting and television services is an ordinary function of govern- ment,

In the laght of the submission made on behalf of the Commission based on the dictum of Kitto J. in the passage earlier cited from his judgment, that conclusion has further significance. He there posed the question whether there was, on the one hand, an intention that the Commonwealtn snould operate in a particular field through a corporation created for the purpose; or whether, on the other hand, there was an intention to put into the field a corporation to perform its functions independently of the Commonvealth. In the laght of the various provisions of the Broad- casting Act I have reached the clear conclusion that the Commission falls into the Jatter category and not the former.

Commission nor surplus revenue it may have is held hy it

for the Commonwealth or the Crown. The fact that the proverty of a statutory body is to be held on trust for

the Crown has always been one of the indicators pointing

to the fact that the body is the Crown. Here the indicator points the other way.

For the reasons given I would answer the first question in the negative. It follows that guestion 2 should also be answered in the negative and that the Tribunal does have jurisdiction to deal with the reference before it. That is, of course, upon the assumption that the licence scneme falls within the definition of that expression in s.136(1) of the : Act. That was not a matter which was before us.

As mentioned earlier there were some further matters raised 1n argument which, in the light of my conclusion, do not require decision, I mention some of them. Firstly, it may be possible for an act to be done for the services of the Common- wealth within the meaning of s.183 of the Act, notwithstanding that the Commission 1s not the Commonwealth nor an agent or instrumentality thereof. Sucn a situation might arise if there were broadcast or televised something which was plainly broadcast or televised for the services of the

Common ealth, e.g. a radio or television programme \

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put on for the purposes of the Commonwealth Government. The essential question, however, is whether the Commission is an organisation or person for the purposes of s.154 of the Act.

everything it did by way of infringement of copyright fell within s.183. If it 1s not the Commonwealth, or

An alternative submission relied upon by counsel for APRA was that, even if the Commission were the Commonwealth, there was nevertheless mani- fested an intention that Part VI of the Act including s.154 applied to it, notwithstanding the fact that s.183 would also apply. Reference was made to s.7 of the Act earlier set out and also to the fact that the Commission itself, Commonwealth or not, could be a licensor for the purposes of s.154. If

it could be a licensor, why should it not also be an

organisation for the purposes of the section? That is not a matter which, in my opinion, in the light of the answer I would give to question 1, need be decided and I express no view upon it. Finally, I should say more about Pfizer's case (supra). It may have been open to APRA to argue that in no sense could the broadcasting and television services provided by the Commission be provided by it for the "services of the Commonwealth". Rather, so it could be said, they are provided for the services of members of the public receiving the Commission's transmissions. Senior counsel for APRA felt that argument concluded against him by the majority opinions of the House of Lords in Pfizer's case, Lord Reid said that he thought it a false dichotomy to treat some patented articles as made or used for the benefit of the department or service which uses them, and others as made or used for the

benefit of those persons outside the service who may

derive benefit from their use ((1965) A.C. at p.534). Later he said that sometimes, as in the case of the armed services, the use of a patent will benefit the whole community, sometimes such use will benefit a particular section of it and sometimes it will benefit particular individuals. His Lordship said that he could not see any good reason for making a distinction between one such case and another (p.535). Like opinions were expressed by Lord Evershed (pp.543-544) and Lord Upjohn (pp.551-552); contrary opinions were expressed by Lord Pearce (p.550) and Lord Wilberforce (pp.570-571).

In the result I would, for the reasons earlier given, answer the questions in the stated case as follows:

3. Yes, assuming the licence scheme falls within the definition in s,136(1) of the Act.

The Commission should pay the costs of the reference.

| certify that this andthe 32 preceding pages are a true copy of the reasons for judgment herein of The Honourable _ Mr Justice Sheppard, aS Male

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