Broadcasting Act 1942, ss. 16, 17, 17A, 123 and 124

Administrative Decisions (Judicial Review) Act 1977, s. 13

Statutory Declarations - requirement by Broadcasting Tribunal that annual return required to be completed by television licensees be verified by statutory declaration - no express power conferred - power of Tribunal to require licensees to make statutory declaration.

Statutory Declarations Act 1959, ss. 6 and 11

Oaths Act 1900 (N.S.W.), ss. 21 and 25

Counsel for the Applicants: Mr W.H. Nicholas, QC and Mr T.D. Blackburn

Solicitors for the Applicants: Mallesons Stephen Jaques

Solicitors for the Respondent: Australian Government Solicitor

Declare that the respondent was not empowered to require the applicants to furnish a statutory declaration to verify the truth of the information provided in schedules B to L inclusive of form ABT-12 being exhibit "SPO'H 1" to the affidavit of Sean Patrick O'Halloran sworn 12 May 1988 and filed in the proceedings.

Declare that the decision of the respondent made on 29 January 1988 and the requirements of the respondents made on 25 March 1988 and 15 April 1988 were invalid insofar as they required completion of the statutory declaration in schedule A to the aforesaid form ABT-12 but that otherwise the said decision and requirements were valid.

Order that the applicants pay one third of the respondent's costs of the application.

Order that the respondent be restrained up to and including the hearing of any appeal from the declarations made herein from requiring the applicants or any of them to complete schedules K and L to the said form ABT-12.

Order that the time within which the applicants or any of them may appeal from the declarations herein be abridged to 14 June 1989.

Note the undertaking of the applicants that they will prosecute any appeal with due diligence.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court

This application for judicial review calls into question decisions made by the respondent, the Australian Broadcasting Tribunal ("the Tribunal"), relating to its requirement that a number of licensees of television stations provide it with certain information. The decisions in question are the decisions of the Tribunal of 29 January 1988 to require each of the applicants to furnish to the Tribunal the information sought in schedules K and L of the Tribunal's form of annual return and to complete the statutory declaration in schedule A thereof. A number of grounds of review are relied upon, but in essence the applicants have submitted that the Tribunal had no power to require them to provide the information sought nor to require that it be verified by statutory declaration.

2. It is first necessary to consider the relevant provisions of the form of annual return of which schedules A, K and L form part. The front page of the form shows the name of the Tribunal. There follow the words, "Annual Return 1987 - Commercial Television Licensees - Schedules". There is then a table of contents. Schedule A is referred to as "Statutory Declaration", schedule K as "Cost of Production of Australian Programs" and schedule L as "Staff Profile". The statutory declaration requires the declarant to say that he is authorized to give "this certification" on behalf of the licensee, that the information shown on the return and all the attachments thereto is true and complete in all respects to the best of his knowledge and belief, that any apportionment made is on the basis of information available in the licensee's records, that any estimates that have been made are clearly identified within the schedules, that the basis and details of such estimates are explained in comments attached, and that the information shown on the return and all the attachments complies with the instructions given in the "Notes on completion of annual return", to the best of his knowledge and belief. I shall refer to these notes in due course. The declaration concludes with the usual statement that the declarant has made it by virtue of the Statutory Declarations Act 1959 and subject to the penalties provided by that Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in the declaration to be true in every particular.

3. Schedule K is entitled, "Cost of Producing Australian Programs". Under the heading "Production Costs" the licensee is required to state the costs incurred in producing different categories and subcategories of programs. The licensee is also required to differentiate amongst production costs incurred for local programs, programs produced for a network and programs that have been produced by an outside organization. The various programs are classified as Drama; Children's Programs; News, Current Affairs and Documentaries; Education, Arts, Religion and Information; Sport; Quiz, Panel and Game shows; and Light Entertainment. Each of these categories is broken up into further categories. For example, drama is broken up into episodic/series, serial, mini-series, telemovies, "other", and dramatized documentaries. Light entertainment is broken up into today/shows and tonight/shows, variety/musical specials, variety general, music and video music.

4. Schedule L requires the licensee to indicate the number of staff employed by the licensee company in its television activities as at 30 June in the year in question. The categories of staff designated are executives, sales, production, operational/technical, administration, program type (broken up into news/current affairs, commercials, sport, childrens, drama, light entertainment and "other"), programming, engineering, maintenance, accounting, and other administration. The licensee is required to break up the staff in each category into numbers of males and females employed. It is also required to distinguish between full time staff and contractors and part time staff and contractors, to show the total permanent staff divided into males and females, to show the numbers of casual staff, and to show the grand total in each category.

5. Accompanying the form of return was a document similarly entitled to the return but bearing the title, "Notes". The notes follow the order of the return itself beginning with schedule A which is the statutory declaration and concluding with schedule L which is Staff Profile. The notes to schedule A say that the declaration must be given by the manager or secretary of the licensee. It then contains instructions, to which it is unnecessary to refer, as to how the declaration is to be compiled.

6. The notes to schedule K begin with the following paragraphs:-

"The costs recorded here represent the total

expenditure by the licensee during the

financial year on Australian programs,

whether broadcast or not. Incurred means

taken up in the books of account.

Costs to be shown, by category, are to be the

actual production costs as calculated by the

licensee in accordance with the costing

principles specified in Annexure 1. No

allocated overhead or general administration

costs should be included."

7. Schedule K itself has no annexure 1, but my attention was drawn by counsel for the Tribunal to schedule C which is entitled, "Profit & Loss Account". Annexure 1 to that schedule is entitled, "Principles and Practice of Program Costing". No principles are stated. But counsel submitted that a reading of the notes to schedule C suggested that the intention was that the licensee should set out the principles and practice of program costing which had been used by it. Thus, so counsel said, the principles were not provided for licensees by the Tribunal. Rather, it was for them to indicate to the Tribunal the principles which had been used in the compilation of their accounts.

8. The two introductory paragraphs which I have quoted from the notes concerning schedule K are followed by three pages of closely written explanations and instructions. These begin with an indication of the meanings which certain expressions are intended to have. The meanings of local productions, network productions and outside productions are explained. Under the heading, "Outside Productions", are to be included, inter alia, the full purchase price of programs acquired complete from an outside producer where such programs are "intended for telecast" on the licensee's station only. One of the submissions made by counsel for the applicants is based on the use of the expressions, "whether broadcast or not" (which I have earlier emphasized), and, "intended for telecast".

9. After a reference to "Packager Program Production", there appears an indication of what is on the following pages of the notes. It is said:-

"On the following pages, the categories under

which costs are required are defined. A

general guide to determining the category

under which a program is to appear are the

content points that are allocated under each

heading."

I have emphasized the words "content points" because they form the basis of a further submission relied upon by counsel for the applicants.

10. There follow definitions for each of the subcategories of program referred to in schedule K. Thus, in relation to drama, there are definitions of episodic/series, serial, mini-series, and short drama itself divided into telemovie, other short drama and dramatized documentary. The other major categories are subdivided in this way. Because of some of the submissions which were made, it is necessary to quote some of the paragraphs of this part of the notes to schedule K. The definitions of episodic/series and mini-series are as follows:-

"1.1 Episodic/series

Drama productions where episodes consist of

self contained plots which can be screened in

any order and in which there would be a

number of sustaining characters throughout

the series and theme and settings may be

common to all episodes.

.............................................

1.3 Mini-series

Limited series of drama which would normally

be less than 13 hours in total length which

is either an extended but self-contained

drama made for television, which contains a

major continuous plot enhanced by minor

plots, or an anthology of drama works made

for television with no continuity of

character setting or plot as between

episodes. It is generally made to be

broadcast under one generic title."

11. The submission requires that these subcategories be contrasted with the subcategory, "Arts", which is in the category, "Education, Arts, Information and Religion". The subcategory of arts is as follows:-

"4.2 Arts

Programs of fine music, art, ballet,

literature, classical drama and the like,

including serious reviews and criticisms of

all such art forms."

12. The opening notes to schedule L are as follows:-

"This schedule requires information on the

number of staff employed by the Licensee on

30 June in its television activities as

permanent full time, permanent part time and

casual employees.

Contractors are to be included as permanent

full time or permanent part time employees if

they fall within the definitions given below.

In addition, each category of staff is to be

further subdivided into male or female.

Note

This schedule is intended as a staff profile

only and is not linked to any costs in the

Profit and Loss Account (Schedule C)."

13. There are definitions of full time, part time and casual staff. It is said that these staff levels are further subdivided according to the categories shown in the schedule, that is, schedule L. There follows a note which says:-

"If you feel that the numbers quoted are not

a true representation of the licensee's staff

levels, the schedule should be noted, and

full details attached."

14. There is then some explanation about executive and sales staff followed by a reference to production staff which is as follows:-

"Production

(These staff would only be employed if the

station produced programs or commercials.)

Staff involved with the technical,

operational, administrative and creative

production of all programs and non-program

material by the station, e.g. Technical and

operational - directors, floor managers,

operations (camera, sound, lighting,

staging), post production, art department,

make-up, wardrobe, set construction, film

processing, technical directors, etc.

Administration - secretarial, clerical and

production managers.

Content - producers, directors, journalists,

presenters, interviewers, researchers,

writers, etc."

15. Finally, there are references to programming, maintenance and engineering staff. These paragraphs are as follows:-

"Programming

(These staff would be employed even in those

stations where there was no production.)

Staff involved in purchasing, scheduling,

editing and putting to air complete programs

and program promotions, e.g. Telecine,

transmitters, promotion, publicity,

scheduling, program sales, videotape

operators, etc.

Maintenance

These staff are employed in maintaining

general equipment, vehicles and plant.

Engineering

These staff are employed maintaining and

developing technical equipment and are not

operational."

The Tribunal's Requirements and Subsequent Correspondence

16. The return and the accompanying notes were sent to each of the applicants under cover of letters from the Tribunal dated 20 October 1987. Each letter was in similar form. The letter began with a series of paragraphs referring to provisions of the Broadcasting Act 1942 ("the Act") and to amendments thereto which had been effected earlier in 1987. The letter said that the amending Acts had been introduced to improve arrangements relating to the assessment and collection of licence fees. There was then an indication of the substance of the amendments and some further paragraphs which were concerned with the way in which licence fees would be assessed. Paragraph 10 of the letter then followed. It read:-

"10. You are now required to furnish:

(a) The financial information

sought in the attached form

(ABT-12) which has been

approved by the Tribunal;

(b) a statutory declaration by the

Manager or Secretary of the

licensee company, and a

statement by the auditor(s) of

the licensee company, both

relating to the 'gross

earnings' of the station

(service) for the period on the

attached Form ABT-9; and

(d) if the figure under Schedule C,

Item 8 on Form ABT-12 'Total

profit (loss)' before tax -

does not correspond to the

pretax profit or loss figure on

the audited profit and loss

account of the licensee company

(because of the non-television

business activities of the

licensee company, or for any

other reason), a statement

showing a reconciliation

between the two figures."

Paragraph 10 of the letter did not contain any sub-para. (c). The reference to form ABT-9 in sub-para. (b) is not of relevance to the present proceedings. The form ABT-12 referred to in para. 10 of the letter is the annual return in question in this case. The notes to the return are also marked ABT-12.

17. The letter commenced with the heading, "ANNUAL ACCOUNTS". Paragraph 1 of the letter referred, inter alia, to s. 123 of the Act which was said to provide that a licensee shall, in respect of each commercial television station of which it is licensee, furnish to the Tribunal within six months after 30 June in each year, or such other accounting period adopted with the approval of the Tribunal, an audited balance sheet and profit and loss account and a statutory declaration dealing with the licensee's gross earnings within the meaning of the Television Stations Licence Fees Act 1964. Paragraph 10 apparently concluded that part of the letter dealing with annual accounts because it was followed by a new heading, "Provision of Financial Information". Later there was a further heading, "Payment of Licence Fees". So much of the letter as appears under these last two headings is not relevant for present purposes.

18. On 21 December 1987 the first applicant sent a letter to the Tribunal enclosing what was said to be a completed annual return for the year ended 30 June 1987. Similar letters were sent by each of the other applicants. On 25 March 1988 the Tribunal wrote to another of the applicants, South Australian Telecasters Limited, referring to the Tribunal's letter of 20 October 1987 and saying that the form, ABT-12, "was attached for completion in full". The letter recapitulated what was required and concluded by saying that it had been noted that the licensee had not supplied in full the information requested. The letter continued, "Accordingly you are hereby directed under s. 17 of the Broadcasting Act to supply forthwith any of the abovenamed information which has not as yet been forthcoming."

19. On 15 April 1988 the Tribunal wrote a further letter to South Australian Telecasters drawing the company's attention to the fact that it had not completed schedule A, the statutory declaration, schedule K, the cost of producing Australian programs, and schedule L, the staff profile, or form ABT-12. The letter concluded, "This letter is to advise you that unless the information specified in the direction reaches the Tribunal's office by close of business 20 April 1988, the Tribunal will consider that you have failed to comply with the direction."

20. On 19 April 1988 South Australian Telecasters wrote to say that it had been advised that it was beyond the statutory power of the Tribunal to require completion of schedules A, K and L of the return and to direct or require the provision of the information referred to. It was said that the company was in the process of obtaining advice as to the appropriate steps to be taken to resolve the question concerning the validity of the Tribunal's request. On 20 April 1988 South Australian Telecasters was notified that the Tribunal intended to take submissions at its hearings that week on non-compliance by it with the Tribunal's direction dated 25 March 1988 and, if appropriate, consider any such non-compliance in the context of s. 86 and other provisions of the Act relating to the renewal of the licence.

21. On 29 April 1988 the company wrote to the Tribunal saying that it was considering the advice of senior counsel about the matter. In the meantime it requested the Tribunal, pursuant to s. 13 of the Administrative Decisions (Judicial Review) Act 1977, to furnish it with a statement in writing identifying the powers under the Act pursuant to which the Tribunal had purported to issue the directions relating to completion of schedules A, K and L of the return. It may be observed in passing that s. 13 of the Judicial Review Act does not in terms enable a person to require a statement of the powers pursuant to which a decision has been made. It provides for a request for findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

22. In its letter of 5 May 1988 the Tribunal said that it had noted the company's refusal to comply fully with the Tribunal's direction and said that it intended to pursue the matter at an appropriate time. On 6 May 1988 the Tribunal was advised that each of the licensees comprising the Australian Television Network (that is each of the applicants) proposed to seek relief under the Judicial Review Act. The previous day the Tribunal had written to South Australian Telecasters a letter which, so far as it is material, was as follows:-

"The Tribunal notes that you have not

complied with its direction under section 17

of the Broadcasting Act 1942 to supply in

full the information required in the Annual

Return Form ABT 12. It does not consider

that your request for a statement of reasons

pursuant to section 13 of the Administrative

Decisions (Judicial Review) Act 1977 had the

effect of staying your obligation to comply

with the direction.

Given s. 129 of the Broadcasting Act, this

involves consideration of whether you have

breached a condition of the licence. Under

s. 86(11B)(iii) the answer to that question

could have significant implications for your

current application for renewal of that

licence.

The Tribunal is of the preliminary view that

on the evidence before it, you are in breach

of a condition of your licence in that, in

failing to comply with its direction under s.

17(1) you breached the provisions of s.

17(8), such provision being a condition of

the licence by virtue of s. 129. If you wish

to make any further submissions on this

matter, they should be forwarded to the

Tribunal by COB 6th May 1988.

The statement of reasons requested by you is

attached."

As I have observed, it was not for a statement of reasons that the company had asked.

23. Appended to the letter was the statement of reasons referred to. Under the heading, "Findings on Material Questions of Fact", it was said that on 20 October 1987 a letter was sent to the company as well as all other commercial television licensees requiring them to furnish certain information to the Tribunal and attaching the form ABT-12 to be filled in for this purpose. The nature of ABT-12 was then stated. It was recorded that the company had returned the form with all schedules completed except schedules A, K and L. After referring to the letter of 20 October 1987, the response of 29 December 1987 returning the partially completed form and some further material, the Tribunal stated its reasons for decision as follows:-

"REASONS FOR DECISION

7. The Applicant was requested by the

Tribunal on 20 October 1987 to

provide certain information by

filling out Schedules A to L of

Annual Return Form ABT 12.

8. The Applicant returned the form on

29 December 1987 without providing

the information required by

Schedules A, K and L.

9. In refusing to give this information

the Applicant alleged that some of

the information sought by the

Tribunal could not properly be

required under the provisions of the

Act and that it was beyond the power

of the Tribunal to require that the

information be verified by way of

Statutory Declaration.

10. The Tribunal was satisfied that it

had the power under the Act both to

request the information and to have

it verified by way of Statutory

Declaration.

11. As the Applicant and other

commercial television licensees had

not provided the information

required, the Tribunal decided to

direct the Applicant and other

licensees to provide the information

forthwith."

24. On 12 May 1988 the Tribunal wrote a further letter to the company which was as follows:-

"The Tribunal has noted the matters therein

and has taken them into account in reaching a

conclusion in this matter.

The Tribunal has decided that you are in

breach of a condition of your licence in

that, in failing to comply with its direction

under s. 17(1) of the Broadcasting Act 1942,

you breached the provisions of s. 17(8) of

the Act, such provision being a condition of

the licence by virtue of s. 129 of the Act.

Clearly, under s. 86(11B)(C)(iii), this

decision, taken in the context of your

current application for the renewal of your

licence, has significant implications and

these will be considered in due course.

In answer to your query, the powers under the

Broadcasting Act 1942 pursuant to which the

Tribunal requested the relevant information

are contained in sections 16, 17, 123 and 124."

It may be observed that until that letter there had been no mention of ss. 16, 17 or 124 of the Act in any previous correspondence.

25. The application for review was filed on 23 May 1988 and was fixed for hearing on 19 September 1988. The matter proceeded on that day. For administrative reasons it could not be continued on 20 September, but the hearing was resumed on 21 September. No evidence was read other than the affidavit of a Mr. O'Halloran, which had the relevant correspondence annexed to it. Argument began shortly after the matter commenced on 19 September. It emerged, in the course of that argument, which continued on 21 September, that the Tribunal might wish to contend that some of the expressions used in the return and the notes thereto were understood in the industry to have well known meanings ascribed to them. Discussion ensued on the question whether such evidence ought to be led. On 21 September 1988 counsel for the Tribunal applied for an adjournment to enable this course to be followed. By consent I made directions for affidavits by both parties. These concluded with a provision for the filing of affidavits to be relied upon by the applicants on or before 14 October. The matter was mentioned again on 20 October 1988 when I proposed to fix a date for the resumption of the hearing provided, of course, the evidence was then complete. The earliest date which was suitable to both counsel for a resumption of the hearing was the afternoon of 15 December 1988. The matter resumed on that day and continued on 16 and 19 December 1988 when I reserved my decision.

26. Over the objection of counsel for the applicants, counsel for the Tribunal read affidavits of Ms J.F. Paramore and Mr D.N. Herd. Ms Paramore is the Acting General Manager of the Tribunal. Her substantive position is Director of the Programs Division of the Tribunal. Mr Herd is a Senior Project Officer, Programs Division in the Tribunal. Ms Paramore described how the form ABT-12 had been devised and the consultation with the industry which had taken place before it was required to be completed. Mr Herd referred to a substantial amount of material concerning Australian content in television programs broadcast in Australia. Part of para. 10 and the whole of para. 11 of Mr. Herd's affidavit were rejected. The balance of the affidavit and the exhibits referred to therein were read subject to the applicants' objections as to relevance. Mr Herd's affidavit was not sworn until 16 December 1988. An earlier affidavit sworn by him was not read. Mr Herd was cross-examined, but I do not find it necessary to refer to his oral evidence.

27. Prior to the hearing commencing in September, the applicants were directed to file points of claim so that the Tribunal and the Court might be made aware of the particular matters to be relied upon by the applicants in their challenge to the decisions review of which was sought. Points of claim were filed, but they were expressed in the most general language and were quite inadequate to achieve their intended purpose.

28. It is next appropriate to refer to the provisions of the Broadcasting Act which are in question. So far as it is relevant, subsec. 16(1) of the Act provides as follows:-

"16 (1) The functions of the Tribunal are-

(a) to grant, renew, suspend, revoke and

accept the surrender of licences;

..........................................

(d) by instrument in writing, to determine

the standards to be observed by

licensees in respect of the

broadcasting of programs and in respect

of programs to be broadcast;

..........................................

(h) to assemble information relating to

broadcasting in Australia under section

124; and

(i) to perform such duties and exercise

such powers as are imposed or conferred

upon it by this Act and the

regulations."

29. The relevant subsections of s. 17 are as follows:-

"17 (1) 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.

(2) Orders made by the Tribunal-

(a) shall be in writing;

(b) shall not be deemed to be Statutory

Rules within the meaning of the Rules

Publication Act 1903-1939; and

(c) shall have the force of law.

.............................................

(4) A person shall not contravene or fail to

comply with any provision of an order made by

the Tribunal which is applicable to him.

(5) A direction given by the Tribunal may be

given orally or in writing.

.............................................

(8) A copy of a direction given in writing

shall be served on the person required to

comply with the direction and thereupon that

person shall comply with the direction."

30. Although s. 17A of the Act was not mentioned by the Tribunal in its letter of 12 May 1988, it is necessary to refer to it because it throws some light upon the nature and extent of the powers of the Tribunal and was relied upon by its counsel in his submissions. It should be emphasized that ss. 16 and 17 appear in Division 2 of Part II of the Act and s. 17A in Division 3 thereof. Division 2 is entitled, "Powers and Functions of the Tribunal", and Division 3, "Inquiries by the Tribunal". Section 17A is an interpretation section. Its relevant provisions are to be found in paras. 17A(2)(a), (b), (c) and (d) which provide:-

" (2) A reference in this Division to a

substantive power of the Tribunal is a

reference to a power of the Tribunal-

(a) to determine program standards;

(b) to grant or renew a licence under

sub-section 81(1);

(c) to vary, revoke or impose a

condition of a licence under

section 85, otherwise than in

accordance with sub-section 85(4);

(d) to suspend or revoke a licence

under section 88, 88A, 88B, 88C or

88D;"

31. The purpose of the section is to indicate the meaning of the expression, "a substantive power of the Tribunal", where that expression is used in Division 3. The expression is used throughout the Division. Section 17A is thus of more limited relevance to the ambit of the Tribunal's powers than are ss. 16, 123 and 124 of the Act which are directly in point.

32. Subsections (1), (3) and (4) of s. 123 are as follows:-

"123 (1) The holder of a licence (other

than a re-broadcasting licence or a

re-transmission licence) shall-

(a) compile and maintain, in a recognized

business or commercial form, financial

accounts in respect of the service

provided pursuant to the licence;

(b) make those accounts available for

inspection by the Tribunal or an

authorized officer as required;

(c) furnish to the Tribunal, within the 6

months after 30 June in each year-

(i) an audited balance-sheet and

profit and loss account in

respect of the service provided

pursuant to the licence, in a

form approved by the Tribunal,

for the year ending on that 30

June; and

(ii) a statutory declaration stating

the gross earnings in respect of

the licence during that year;

and

(d) keep such records in respect of the

service provided pursuant to the

licence as the Tribunal from time to

time directs and supply copies of those

records to the Tribunal as required.

.............................................

(3) Where the licensee is a company, the

declaration shall be made by the manager or

secretary of the company.

(4) A licensee shall, upon request by the

Tribunal-

(a) make available for inspection by the

Tribunal or an authorized officer such

books and documents concerning the

broadcasting activities of the licensee

as the Tribunal specifies; and

(b) furnish to the Tribunal such

particulars with respect to the

broadcasting activities of the licensee

as the Tribunal specifies and any other

information specified by the Tribunal,

being information with respect to the

activities or affairs of the licensee

and relevant to the operation of this

Act, the Radio Licence Fees Act 1964 or

the Television Licence Fees Act 1964."

33. Finally, there is s. 124, the relevant subsections of which are subsecs. (1) and (2). They provide:-

"124 (1) The Tribunal shall assemble

information relating to broadcasting services

in Australia, being information-

(a) supplied to the Tribunal in accordance

with section 123;

(b) supplied to the Tribunal in accordance

with sub-section (2); or

(c) otherwise acquired by the Tribunal in

the performance of its functions.

(2) The Tribunal may, by notice in writing,

require a licensee to supply to the Tribunal,

within a specified period (not being less

than 21 days after the receipt of the notice)

such information in his possession or control

as is specified, being information relating

to a function of the Tribunal, and that

person shall comply with the requirement."

34. As mentioned, the sections to which I have referred, with the exception of s. 17A, are those mentioned in the letter from the Tribunal dated 12 May 1988 which I have earlier set out. None of these sections, I should add, appear in the reasons given by the Tribunal for its decision which, in my opinion, are as vague and elliptical, and thus as unsatisfactory, as the applicants' points of claim. I regret to say that both parties commenced the hearing of this case really unaware of the ground that each would adopt. This was despite a directions hearing designed to overcome uncertainties of this kind, a statement of reasons which, albeit that they were not sought in this case, should have told the persons affected by the decision precisely how it was arrived at, and points of claim which should have told the Tribunal precisely what was to be relied upon. It is no wonder that the case had to be adjourned as it was and that when it came back into the list there were still unsatisfactory features about the evidence, so much so that Mr. Herd had to swear a fresh affidavit on the morning of the second day of the resumed hearing.

35. The submissions relied upon by the applicants may be summarized as follows:-

1. The Tribunal had no power to require any of the licensees to

make a statutory declaration. Thus the requirement to

complete schedule A of the return was unlawful.

2. The Tribunal had no power under s. 123 of the Act to require

any of the licensees to complete schedules K and L.

3. The Tribunal's specific reliance on s. 123 of the Act in its

notice given on 20 October 1987 to which I have earlier

referred precluded it from relying on any power conferred by

s. 124 of the Act or by any other provision thereof.

4. In any event no power was conferred on the Tribunal by any

provision of the Act to require the information sought in

schedules K and L.

5. Section 124 was not complied with because no time limit for

compliance with the notice was specified therein; see subsec.

124(2).

6. For a variety of reasons the form of both schedules K and L

was so vague and uncertain as to make a requirement that they

be completed not a proper exercise of power. The particular

matters upon which counsel for the applicants relied will be

mentioned when I come to deal with this submission.

36. For the moment I propose to put aside the question of the lawfulness of the requirement that the applicants complete statutory declarations verifying the accuracy of the material provided in the returns and to deal with the question of the Tribunal's power to require the information to be furnished.

37. I am clearly of the opinion that the information required in schedules K and L was information the Tribunal was entitled to require from licensees pursuant to the provisions of subsec. 124(2) when read in conjunction with s. 16. The most relevant provision of s. 16 is para (1)(h) which makes it a function of the Tribunal to assemble information relating to broadcasting in Australia under s. 124. But, I also think that some of the information sought in the two schedules could be relevant to the grant, renewal, suspension or revocation of licences (para. (1)(a)), the determination of standards (para (1)(d)) so far as concerns the information sought in schedule K, and the performance by the Tribunal of the duties and the exercise by it of the powers conferred upon it by the Act (para (1)(i)). I think the provisions of s. 17A which I have quoted reinforce this conclusion. They deal with some of the matters dealt with in the relevant paragraphs of s. 16. They are, however, related more to the inquiries which the Tribunal may conduct and are not so clearly indicative of the nature of its overall powers and functions as are the provisions of s. 16.

38. It is to be remembered that the Tribunal is the body charged by Parliament with the general supervision and control of commercial broadcasting in Australia. It has an important and responsible role. Its powers ought not to be construed narrowly by reading into them restrictions which the language used by the legislature does not suggest were intended to circumscribe the generality of the Tribunal's powers and functions. The Tribunal should be given, within the bounds of reasonableness, a free hand itself to determine, in relation to information gathering, what kinds of information will, over the years, assist it to discharge its functions. The information it seeks is not necessarily relevant only to the licensees which provide it. The collection of statistics of this kind sought from all licensees in a succession of years enables a body such as the Tribunal to build up a picture of the commercial television industry which will help to keep it well informed and assist it, perhaps, at times, only in indirect and tangential ways, in performing its duties.

39. Counsel for the applicants made a particular attack on the Tribunal's request to complete schedule L relating to the staffing profiles of the licensees. But, within the general framework of the statutory powers to which I have referred, I see nothing unlawful in a statutory body having the responsibilities which the Tribunal has requiring licensees to furnish information about the make-up of their staff. Knowledge of this kind acquired from a range of licensees, some more successful than others, some in large metropolises, some in provincial cities and some in country areas, may prove invaluable to the Tribunal where, in relation to choosing amongst applicants for a new licence, the Tribunal has to be satisfied of a potential licensee's ability to operate a successful enterprise.

40. There are, however, two difficulties about the Tribunal's reliance on s. 124 in the circumstances of this case. These have been expressly mentioned in the summary of the submissions of counsel for the applicants. They form the basis of submissions 3 and 5. I propose to put aside for the moment the matter relied upon in submission 3 and to deal now with the matter relied upon in submission 5. It was that the Tribunal's letter of 20 October 1987 failed to specify any period within which the information was to be supplied as required by subsec. 124(2) of the Act. In a sense that is hardly surprising because there is no mention of s. 124 in the letter and it seems unlikely that the Tribunal had it in mind.

41. The relevant words of subsec. 124(2) are, "The Tribunal may, by notice in writing, require a licensee to supply to the Tribunal, within a specified period (not being less than 21 days after the receipt of the notice) such information ..." It was submitted by counsel for the Tribunal that it was a sufficient compliance with the subsection if the notice gave the licensee at least 21 days to supply the information. That, however, is not what the section says. On the other hand, such a construction would not be of disadvantage to a licensee because it would leave the period open-ended. But, on that basis, one would have to construe the requirement made by the Tribunal as one which required compliance within a reasonable time. To my mind that gets well away from the meaning which the subsection has. In any event, it is not apparent to me that the letter specified any time at all, let alone a time which was at least 21 days. I therefore reject this submission.

42. Then counsel for the Tribunal submitted that paragraph 1 of the letter did in fact specify a period, namely, "within six months after 30 June in each year, or such other accounting period adopted with the approval of the Tribunal ..." but, as I have earlier said, the Tribunal in paragraph 1 of its letter did no more than to recite the provisions of s. 123 of the Act. Paragraph 1 was explanatory and began the series of paragraphs leading to the requirement which is made in paragraph 10. That paragraph opens with the words, "You are now required to furnish ..." That is the peremptory demand which the letter makes. Of course, one would not read it as one which required instant compliance. One would read it, as the Tribunal in its later correspondence appears itself to have done, as requiring the supply of the information within a reasonable time.

43. I am thus satisfied that the letter contains no specification of any time so that, whether or not it was essential for the Tribunal to mention s. 124 as a source of power (a matter to which I have yet to come), the letter failed to comply with its terms because no period was specified. Counsel for the Tribunal put no argument about this matter and, in those circumstances, it would not be inappropriate to conclude that the Tribunal was not entitled to rely on s. 124 even if it might otherwise have done so.

44. Nevertheless, there are other considerations. In its letter of 25 March 1988 the Tribunal referred to the failure of South Australian Telecasters to supply all the information required. Its letter concluded, "Accordingly, you are hereby directed under s. 17 of the Broadcasting Act to supply forthwith any of the abovenamed information which has not as yet been forthcoming". In its letter of 15 April 1988 the Tribunal advised South Australian Telecasters that, unless the information specified in the direction reached the Tribunal's office by close of business on 20 April 1988, the Tribunal would consider that the company had failed to comply with the direction. Section 17 of the Act, which I have earlier quoted, provides that, for the purpose of exercising its powers and functions under the Act, the Tribunal shall have power to make such directions as it thinks fit. I have earlier concluded that the information which the Tribunal was seeking was related to functions of the Tribunal specified in some of the paragraphs of subsec. 16(1) of the Act.

45. I have reached the conclusion that, notwithstanding the failure of the Tribunal to specify a period in its letter of 20 October 1987, it was empowered by s. 17 of the Act to act as it did in its letters of 25 March and 15 April 1988. The effect of what was done was to bypass the procedure for which subsec. 124(2) provided. The effect of these two letters was to require compliance by 20 April 1988. In passing it seems to me that if the letter of 25 March had itself specified a period longer than 21 days, that letter would have overcome the problems which confront the Tribunal by reason of its failure to state a period in its letter of 20 October 1987. But it did not, so that, in that respect, the letter of 25 March took the matter no further. However, as I have said, the problem is, I think, overcome by the action which the Tribunal took pursuant to s. 17.

46. In the course of my consideration of the matter I have given some attention to the question whether the words of subsec. 124(2), in relation to the specification of a time, should be construed as being directory rather than mandatory. This is a vexed question and I do not propose to express any conclusion about it. I refer, however, to the decision of the Court of Appeal in New South Wales in Tasker v. Fullwood (1978) 1 NSWLR 20 where there is a convenient statement of the applicable principles after a consideration of the relevant authorities. The matter is discussed by Professor Pearce in his work, Statutory Interpretation, 2nd edition, particularly at paras 237-248.

47. In the circumstances, I reject the submission made by counsel for the applicants in para 5 of the submissions which I have earlier summarized.

48. Counsel for the applicants relied on a number of matters connected with the form of the language used in schedules K and L. I shall deal with these points later on. But, subject to those matters, I am of opinion that the Tribunal in asking for the information sought in them was acting well within its powers under s. 124 and s. 16 of the Act.

49. To the extent that the Tribunal relies on s. 123 of the Act as a source of power, its position is not so strong. In my opinion the only part of that section upon which the Tribunal can rely is so much of para (4)(b) as provides that a licensee shall, upon request by the Tribunal, "furnish to the Tribunal such particulars with respect to the broadcasting activities of the licensee as the Tribunal specifies and any other information specified by the Tribunal, being information with respect to the activities or affairs of the licensee and relevant to the operation of this Act ..." In the form in which it was at the relevant time the subsection went on to specify the Radio Licence Fees Act 1964 and the Television Licence Fees Act 1964 as well as the Broadcasting Act itself. The legislation was amended last year so that the form of the subsection is somewhat different; see Broadcasting Legislation Amendment Act 1988, subsec. 48(1) and Schedule 3.

50. The language used in para (4)(b) is certainly wide enough to cover the matters dealt with in schedules K and L. But there is a question in my mind whether the language should be given the full effect it would normally have. My reservation arises because of the general context of s. 123 and its juxtaposition to s. 124 which plainly provides a source of power. The question may be asked why s. 124 was thought necessary if s. 123 covered almost identical ground. Section 123 is fundamentally a section dealing with the provision by licensees of information relating to their finances. One of its principal purposes is, as the Tribunal itself noted in its letter of 20 October 1987, to enable a proper assessment of licence fees to be made. There is therefore a case for reading down the expressions "broadcasting activities of the licensee" and "information with respect to the activities or affairs of the licensee" as activities or affairs which are related in a broad sense to the licensee's financial position. There is material in the notes to schedule L which rather suggests that this may have been a matter that the draftsman considered. Under the heading "Note", the schedule says, "This schedule is intended as a staff profile only and is not linked to any costs in the profit and loss account".

51. I do not think the matter is free from difficulty but, notwithstanding my reservations, I do not perceive any reason for restricting the meaning of the relevant expressions particularly when one brings into account the nature, purpose and object of the legislation and the clear indication which the legislature has given that the Tribunal was intended to have extensive powers to control and regulate commercial broadcasting. I therefore conclude that the Tribunal's requirement that schedules K and L be completed was authorized by s. 123 as well as s. 124.

52. A principal matter relied upon by counsel for the applicants was a submission (submission 3) that because the Tribunal, in its letter of 20 October 1987 requiring the various licensees to furnish the information sought in the return, specifically indicated that it relied on the provisions of s. 123 of the Act to justify the requirement which it made, it could not rely upon s. 124 as a source of power. In the light of my conclusion that s. 123 does provide a source of power, the submission must fail at the outset. But because the submission was developed so fully during the argument, I think I should say more about it.

53. As I read the letter of 20 October 1987, it does not appear to me that the Tribunal has necessarily tied its power to require the completion of the returns to s. 123. Section 123 is mentioned only in the opening paragraph of the letter. It is there mentioned in connection with an explanation given for requiring the information which, as I have earlier indicated, is stated to be required in connection with the licensees' annual accounts. When it comes to require the completion of the return, the Tribunal makes the requirement in paragraph 10 of the letter which I have earlier quoted. There is no mention in that paragraph of any section of the Act upon which the Tribunal relies for its power to require the information. Furthermore, when the Tribunal did not receive a return with schedules K and L completed, it wrote to each of the licensees on 25 March 1988 noting that not all the information had been supplied and saying, "Accordingly, you are hereby directed under s. 17 of the Act to supply forthwith any of the abovenamed information which has not as yet been forthcoming." That requirement was broadly based on all powers enabling the Tribunal to seek the required information. The letters of 20 October 1987 and 25 March 1988 ought not therefore be read as containing an indication that the Tribunal relied only on s. 123 of the Act for its power to require the information sought in schedules K and L to be furnished. I reject the submission for that reason also.

54. My conclusions avoid my needing to deal with a consequential submission made by counsel for the applicants. The submission was that, if a statutory body, such as the Tribunal here, states that it is relying upon a particular provision of its legislation to justify a requirement that something be done, it is not entitled, if that provision proves not to be a relevant head of power, to point to other provisions in the legislation which might have authorized it to do what it did. The authority advanced for this proposition was the decision of this Court in Australian Broadcasting Tribunal v. Saatchi & Saatchi Compton (Vic.) Pty. Limited (1985) 60 ALR 756, particularly the judgment of Bowen CJ at p 764 where his Honour, after referring to Lockwood v. Commonwealth [1954] HCA 31; (1954) 90 CLR 177, said that that authority notwithstanding, the question before the Court was whether a statutory body with functions and powers specified in the legislation can purport to act under one head of power in laying down rules of general application, and have the validity of its rules upheld by a court even though the specified power did not authorize its action, on the ground that there was another appropriate power upon which he could have relied. His Honour concluded (p 765) that, where an administrative body which states it is exercising a particular power in laying down a general rule lacks power on the stated ground, but could have laid down the rule validly under another head of power, it would generally be wrong for a court to uphold the rule as if it had been made under the unstated head of power, particularly where the consequences for the citizen of each exercise of power are different.

55. What his Honour said may be contrasted with what was said by Fullagar J. in Lockwood's case, namely, (p 184):-

"It is, I think, a settled principle that an

act purporting to be done under one statutory

power may be supported under another

statutory power, and, for what it is worth,

the letters patent in this case invoke 'all

powers thereunto enabling'. In my opinion,

the special Act (like a number of similar

Acts in the past) was enacted for no other

reason than that it was doubted whether the

general Act would suffice to support the

proposed appointment. This abundans cautela

was doubtless wise, but I am of opinion that

it was unnecessary."

56. It may be that the apparent difference between the views of Fullagar J. in Lockwood's case and Bowen C.J. in the Saatchi case is explained by what Bowen C.J. said concerning the laying down of a general rule and the consequences for the citizen of each exercise of power being different. Nevertheless, I do not think that the question is free from difficulty. I must confess surprise at the paucity of authority which there appears to be on the subject. Counsel were unable to refer to any other authority except Federal Commissioner of Taxation v. Cripps and Jones (1987) 76 ALR 619 at p 627 which does not take the matter further. In the light of the statement by Fullagar J. that what he stated in his judgment in Lockwood's case was "a settled principle", one might have expected to find earlier authorities or statements in texts which would have shed light on the matter. Counsel apparently found no such authorities or statements and I, myself, have been unable to find any. It is apparent from the judgment of Bowen C.J. in the Saatchi case that he laboured under the same difficulty.

57. I have referred to the thrust of the argument on this matter at perhaps too great a length simply because it occupied so much time at the hearing. For the reasons I have earlier given, I am of the opinion that it is unnecessary to decide the matter of principle which is involved or the application of the applicable principle to the circumstances of this case.

58. I turn to the question whether the Tribunal was empowered to require the information furnished to it to be verified by the statutory declaration provided for in schedule A of the return (submission 1). In what I have so far said I have dealt with the Tribunal's power to require the information sought in schedules K and L. I have not been concerned to ascertain its source of power to require the information in schedules B to J inclusive. That information has apparently been provided. I have said that the Tribunal's source of power to require the information sought in schedules K and L is s. 124, read in conjunction with s. 16, and also subsec. 123(4). It may be, however, that its source of power to require the information in all or some of the other schedules stems more clearly from s. 123 either alone or as an alternative source of power to s. 124. That is not a matter which was the subject of argument. But, as I understand the position, no statutory declaration at all has been furnished. The applicants' submission is that they cannot be required to make statutory declarations verifying any of the material which they furnish pursuant to the requirements of any of the schedules of the return. Subsection 123(1) expressly requires a licensee to furnish a statutory declaration stating the gross earnings in respect of the licence during the year which is specified. It may be that some of the information sought by the Tribunal, for instance, that sought in schedule C, is information that it is entitled to seek pursuant to subsec. 123(1) and that in relation to at least some of it, it is information which must be verified by statutory declaration; see para. (1)(c). I mention this matter to make it clear that my treatment of the question whether the Tribunal is entitled to require information to be verified by statutory declaration is concerned only with cases where the Tribunal's power, whether under s. 123 or s. 124, to require that information is not coupled with any express provision of the Act empowering that course to be taken.

59. Counsel for the applicants submitted that, notwithstanding the wide powers of a regulatory body such as the Tribunal here, the provisions of the legislation affecting it ought not to be read so widely as to entitle it to require, as a matter of obligation, a statutory declaration unless the legislation itself expressly provided for that requirement as it does in subsec. 123(1). He pointed to a number of provisions of the Act, including subsec. 123(1) and also subsecs. 123(1A) and (1AA), not earlier referred to, which expressly empower the Tribunal to require the furnishing of a statutory declaration. It is unnecessary to go to the detail of these provisions; I simply mention the relevant sections. They are sections 90J(7B), 90M, 90P (since repealed), 92F(7B), 92H and 92JA and 92W (both since repealed). Counsel also referred to s. 21 which empowers the Tribunal in the cases there mentioned to take evidence on oath or affirmation. Counsel said that, if the Tribunal were intended to have a general power to require licensees or others to furnish statutory declarations verifying material provided to it, the Act would have said so. Certainly it would not have been necessary to spell out a variety of circumstances in which the Tribunal was empowered to require a statutory declaration to be provided.

60. In addition to relying on the general nature and purpose of the Tribunal and its wide powers to regulate the commercial broadcasting industry, counsel for the Tribunal relied upon the provisions of s. 6 of the Statutory Declarations Act 1959. Section 6 is as follows:-

"6. (1) A person may, if he so desires, make

a statutory declaration in relation to any

matter.

(2) Subject to the next succeeding

sub-section, a statutory declaration may be

used-

(a) for the purposes of a law of the

Commonwealth or of a Territory,

unless the contrary intention

appears in that law;

(b) in connexion with any matter arising

under a law of the Commonwealth or

of a Territory, unless the contrary

intention appears in that law; or

(c) in connexion with the administration

of any Department of State of the

Commonwealth.

(3) The last preceding sub-section does

not authorize a statutory declaration to be

used as evidence in a judicial proceeding but

nothing in this section prevents a statutory

declaration from being so used."

61. A person who wilfully makes a false statement in a statutory declaration is guilty of an offence, the punishment for which, if the offence is prosecuted upon indictment, is imprisonment for a term not exceeding four years. If the offence is prosecuted summarily, the punishment is a fine not exceeding $200 or imprisonment for a term not exceeding six months, or both; s.11.

62. The Statutory Declarations Act 1959 replaced an earlier Act, the Statutory Declarations Act 1911. A provision similar to s. 6 was contained in the 1911 Act; see s.3. In introducing the Bill for the 1959 Act into the Senate, Senator Gorton said (Hansard, 14 May 1959 - Proceedings of the Senate, pp 1436-1437):-

"The purpose of this bill is to repeal and

re-enact, with certain amendments, the law

relating to statutory declarations. The

present Statutory Declarations Act was passed

in 1911. Under the Act a person may make a

statutory declaration in relation to any

matter. He may also make a statutory

declaration for any purpose or in connexion

with any matter arising under a law of the

Commonwealth, or in connexion with the

administration of any Commonwealth

department. The act has, therefore, been one

of great practical utility, especially in

facilitating dealings between the public and

Commonwealth departments."

63. In my consideration of the question of construction which is involved, I have derived some assistance from the decision of the High Court in Grech v. Bird [1936] HCA 59; (1936) 56 CLR 228. That case, which was not referred to in argument, was concerned with the Marketing of Primary Products Act 1927 - 1934 (N.S.W.). The Act authorized the constituting of boards to control the marketing of products proclaimed to be commodities under the Act. By s. 34 the Governor was empowered to make regulations for purposes convenient for the administration of the Act, or as might be necessary or expedient to carry out its objects, and, without limiting the generality of the foregoing, for a number of specified matters. In such regulations he might prescribe forms of returns to be made in accordance with the Act and the contents thereof and the persons by whom the same should be made as well as the time and mode of making and furnishing them. Section 34(2) provided that the regulations might fix a penalty of fifty pounds for any breach thereof. Where a penalty was not fixed, every person guilty of an offence against a regulation was liable to a penalty not exceeding fifty pounds.

64. By a regulation purporting to have been made under the Act, returns as to egg production and disposal were required to be furnished by statutory declaration to officials of the Egg Marketing Board constituted under the Act. Refusal or neglect to furnish the declaration, or the furnishing of one false in any particular, was declared to be an offence against the regulation. It was held by a majority of the High Court that the Act did not confer any power to require the making of a statutory declaration and the regulation was invalid. Each of the four judges who decided the case approached the matter in a somewhat different way. Starke J. dissented and I do not find it necessary to refer to his judgment. Dixon J. (as he then was) referred (p 238) to the Oaths Act 1900 (N.S.W.) which was the statute authorizing the making of declarations. By s. 25 of the Oaths Act, any person who wilfully and corruptly made and subscribed any declaration which by or under the Oaths Act was substituted in lieu of an oath authorized to be subscribed knowing the same to be untrue in any particular was guilty of a misdemeanour.

"The ambit of the present power is probably

wider, but it is subject to a necessary

limitation. It does not enable the Governor

in Council to make a regulation which varies

or departs from a positive provision made by

the Act itself. In my opinion the regulation

fails for this reason. It attempts to place

a poultry farmer who furnishes untruthful

information under a liability to a heavier

and different punishment than that which the

Act expressly authorizes. When sub-sec. 2 of

sec. 34 empowers the Governor in Council by

his regulations to fix a penalty not

exceeding ... 50 (pounds) for any breach

thereof, it limits the penal liability which

his subordinate law-making power may impose

upon the subject. This limit is confirmed by

sec. 31(2), which provides the same penalty

where none is otherwise fixed. In the very

regulation the Governor in Council makes it

an offence against the regulations to furnish

a statutory declaration false in any

particular. This includes, if it does not

mean, 'false to the knowledge of the

declarant,' which is almost co-extensive with

'wilfully and corruptly untrue.' Thus the

regulation itself creates an offence covering

all the ground of the misdemeanour provided

for by sec. 25 of the Oaths Act. So much of

the regulation as does so could not stand if

the rest were valid. But, in so providing,

the regulation merely illustrates the attempt

made by it to improve upon the limited penal

liability which the Governor in Council is

empowered to impose. His power extends to

making regulations requiring returns of

information. The regulations may prescribe

the form and insist upon authentication of

the returns. They may make it an offence to

include in such returns any statement which

is false or wilfully and corruptly untrue.

But the penal consequences may not go beyond

the punishment which the Act specifies. In

my opinion that limitation cannot be overcome

by resort to the device of requiring a

statutory declaration under the Oaths Act."

66. Evatt J. referred to the provisions of the Oaths Act and to the fact that there was no reference in the Marketing of Primary Products Act to an oath to be administered to producers or a declaration to be made by such producers. He said (p 241) that there was no express authority to require producers to use such a declaration conferred upon the regulation-making authority. He continued (pp 241-2):-

"It is urged that s. 341 of the Act (the

Marketing of Primary Products Act) contains

an extensive grant of power to make

regulations, convenient, necessary or

expedient for the purpose of giving effect to

the Act. But in Broadcasting Co. of

Australia Pty. Ltd. v. The Commonwealth

[1935] HCA 3; (1935) 52 CLR 52 a somewhat similar power

was considered by this court as insufficient

to warrant a regulation which operated to

deprive a company of remuneration which it

had already earned. Regulation-making bodies

are necessarily limited by the terms of their

charter from Parliament, and it is difficult

to support a grant of power which will enable

them to exercise in all respects the original

authority or capacity of Parliament itself.

No doubt the word 'voluntarily' in sec. 21 of

the Oaths Act emphasizes that the magistrate

who takes and receives the statutory

declaration is acting extra-judicially and

without using the force of law against the

declarant. None the less, it would be a most

extraordinary position if, without clear

legal authority, a person could be compelled

by law to make an extra-judicial declaration,

and for a court to say that it was

'voluntarily' made.

In my opinion, no regulation can, without the

grant of clear authority by Parliament,

compel a citizen to make a 'statutory

declaration' under pain of fine or

imprisonment. Of course, the position is not

necessarily the same where a citizen is (say)

an applicant for some grant or concession and

is required by regulation to verify by

statutory declaration an application he is

entitled to make. In such event he is left

at liberty to refuse to make the statutory

declaration, because no law compels him to

proceed with his application."

"The regulation now attacked exacts as

security for the truth of the particulars to

be furnished the form to which the sanctions

of sec. 25 of the Oaths Act 1900 and sec. 339

of the Crimes Act are attached. It is from

these sanctions that the statutory

declaration derives its efficacy as a

confirmatory instrument. The result is that

where particulars are demanded under the

regulation the penalty provided for failure

to comply with the demand can be avoided only

by the observance of a form which exposes the

producer furnishing the particulars to

punishment which it is not in the power of

the Executive to impose. For any offence

which is created by the regulation the

Executive cannot provide a penalty exceeding

... 50 (pounds). It follows that the

Executive may not lawfully apply the

punishment provided by any Act, where it

exceeds that limitation, to any offence

against the regulation."

68. A point of distinction between Grech v. Bird and this case is that there was no provision similar to s. 6 of the Statutory Declarations Act in the Oaths Act which was in question in the Grech case. Nevertheless, one must approach the problem here with the general principles propounded by the majority of the High Court in mind. In my opinion these establish that a body such as the Tribunal here is not empowered to require, as a matter of obligation, the furnishing of a statutory declaration unless there is clear statutory authority for this course. In relation at least to schedules K and L there is no statutory authority in the Act; there is also the fact that the Act contains a number of provisions expressly authorizing the Tribunal to require a statutory declaration in the particular circumstances therein provided for. The remaining question therefore, is whether, notwithstanding those considerations, the necessary statutory authority is provided by the provisions of s. 6 of the Statutory Declarations Act.

69. In my opinion it is not. Full weight must be given to the provisions of subsec. 6(2) which empower the use of statutory declarations in relation to government activity. But the use of the expression "may be used" and the nature of the coercive power which would result if the position contended for by counsel for the Tribunal prevailed lead me to conclude that the section means no more than that it is appropriate for officials of government to ask people making applications of various kinds or dealing with government in a variety of other ways to make statutory declarations voluntarily. What the section does not do is to compel them to do so. Statutory declarations have a wide use in private affairs. Members of the community dealing with each other, for example, in relation to the transfer of personal property, may find it convenient to make use of a statutory declaration. The purchaser might require the vendor to make a statutory declaration to the effect that he or she has an unencumbered title to the property which is the subject of the transaction. There are countless other ways in which, in private affairs, statutory declarations are used. But, in every case the person asked to make the declaration has an option whether to make it or not. It is true that if the vendor of property refuses to make a declaration of the kind I have mentioned, the transaction may not eventuate. Nevertheless, the vendor has a clear choice whether to make it or not.

70. I do not think that paras. (b) and (c) of subsec. 6(2) were intended to have a wider ambit. All they mean is that, if a person is dealing with government and a government official wishes to be assured of some aspect, for instance, of the affairs of the individual, he or she may ask the person seeking it to make a statutory declaration about the matter. I think that, if the section were intended to have the much wider effect for which counsel for the Tribunal contends, clearer words would have been used. The sanction for which the Statutory Declarations Act provides is punishment by imprisonment for up to four years. I do not believe a provision such as subsec. 6(2) should be so construed as to empower the executive government or any statutory authority to impose on citizens a requirement that they make a statutory declaration. The considerations mentioned by the members of the High Court in the Grech case suggest that clear Parliamentary authority is required before it will be concluded that Parliament meant this consequence to ensue. I think it follows that subsec. 6(2) of the Statutory Declarations Act must be construed so as to authorize the use of statutory declarations in the administration of government only in circumstances where the person asked for the declaration has a clear choice whether to make it or not.

Conclusions on Tribunal's Powers - Submissions 1 - 5

71. My conclusions so far then are that the Tribunal was empowered to require the applicants in this case as licensees of television stations to supply information of the kind sought in schedules K and L, always subject to the particular matters upon which counsel for the applicants relied and with which I have yet to deal, but that it was not authorized to require that information to be verified by statutory declaration. Whether it was authorized to require the applicants to verify the information provided in schedules other than schedules K and L is not a matter which was the subject of any argument and, at least for the moment, not a matter therefore upon which I express any conclusion. If there are issues about that matter, there will be a need for further submissions. These would need to deal not only with the question whether the Tribunal was empowered to require verification by statutory declaration of parts of the return other than schedules K and L, but also whether, if that be the case, its request for a statutory declaration can be read down so as to require a declaration only in cases where that requirement was lawful. But whatever the outcome of any such submissions may be, the applicants are entitled to relief in respect of the requirement of the Tribunal that the information required to be furnished in schedules K and L be verified by statutory declaration.

Particular Matters Relating to Form of Returns - General Considerations

72. It remains to consider the particular matters of criticism made by counsel for the applicants in relation to the form of schedules K and L. Before I come to the detail of the matters relied upon by counsel, I should mention two matters. Firstly, counsel drew my attention to the potentially serious consequences for his clients if any of them failed to comply with a direction given by the Tribunal pursuant to s. 17 of the Act. The Tribunal has purported to exercise those powers and has drawn attention to the consequences of failure to comply with them, particularly in its correspondence with South Australian Telecasters to which I have referred. Counsel submitted that the task of construing the words used in the schedules should be approached against this background. The schedules should not be found to be valid unless their meaning was reasonably clear to licensees. If the expressions used were vague and uncertain, or capable of more than one meaning, then the requests for information should be treated as not having been lawfully made.

73. In support of his submission counsel relied upon the decisions of the High Court in King Gee Clothing Co. Pty. Limited v. The Commonwealth [1945] HCA 23; (1945) 71 CLR 184, Cann's Pty. Limited v. The Commonwealth [1946] HCA 5; (1946) 71 CLR 210 and Television Corporation Limited v. The Commonwealth [1963] HCA 30; (1963) 109 CLR 59, particularly the judgment of Kitto J. The King Gee and Cann's cases were concerned with the validity of prices orders made pursuant to regulations and involved similar questions. In the King Gee case it was held that provisos to paragraphs of a prices regulation order involved some matters which were 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 judgment. The provisos were therefore not a proper exercise of the power conferred by the National Security (Prices) Regulations. A similar conclusion was reached in the Cann's case.

74. In the Television Corporation case the Court was concerned with the question of the validity of certain conditions of licences granted to the holders of commercial broadcasting and television stations. After referring to the relevant legislation, Kitto J. said (pp 70-71):-

"In this context it seems to me a necessary

conclusion that what the Act means by a

'condition' is a specification of acts to be

done or abstained from by the licensee

company - a specification telling the company

what it is to do or refrain from doing, and

thus on the one hand enabling it in

regulating its conduct to know whether it is

imperilling the licence or not, and on the

other hand making clear to the Minister for

the time being what test he is to apply in

order that any judgment he may form as to

compliance or non-compliance may not be

vitiated by error of law. A specification

cannot, I think, fulfil this dual function if

it is so vaguely expressed that either its

meaning or its application is a matter of

real uncertainty; and for that reason it

seems to me that on the proper construction

of the Act the Minister's power to impose

conditions is to be understood as limited to

the imposition of conditions that are

reasonably certain - that is to say (as has

been said in a long line of cases with

respect to conditions of forfeiture created

by the dealings of private persons with other

forms of property) conditions such that from

the moment of their creation the Court can

say with reasonable certainty in what events

forfeiture will be incurred: cf. In re

Sandbrook; Noel v. Sandbrook (1912) 2 Ch

471, at p 477. Such certainty includes both

certainty of expression and certainty in

operation: In re Exmouth; Exmouth v. Praed

(1883) 23 Ch D 158, at p 164; Sifton v.

Sifton (1938) AC 656, at pp 670, 671;

Clayton v. Ramsden (1943) AC 320, at pp

326, 329, 332.

What is the alternative to the view I have

expressed? It is that any stipulation at all

concerning the conduct of the licensee

company is within the Minister's power to

impose, even though it fail to give the

company any sure guidance as to what is

required of it. To take an example, suppose

the Minister were to impose a condition that

the licensee should conduct its business in

all respects with good taste. Surely a

construction of the Act that would make that

condition within power would be so

unreasonable that it ought not to be adopted

if any more sensible construction is fairly

open."

Counsel for the applicants relied strongly on the analogy drawn by Kitto J. with the forfeiture cases. The position here was claimed to be similar. The Tribunal expressly referred to s. 17 of the Act and it spelt out to the applicants what the consequences of failure to comply with its direction might be. These were the possible suspension of their licences or a refusal to grant renewal of them.

75. Kitto J. went on to explain the basis of his view that the Court would interfere if the conditions of the licence were vague and uncertain. He said:-

"Judged by this test, the so-called

conditions set out in the Minister's notices

to the plaintiffs are in my opinion

unsupportable as conditions which the

Minister has power to impose. The point is

not that the proposed conditions offend

against a general principle that uncertainty

in executive instruments spells legal

invalidity, for there is no such general

principle: see King Gee Clothing Co. Pty.

Ltd. v. The Commonwealth; Cann's Pty. Ltd. v.

the Commonwealth. The point is that a

requirement of certainty in the sense I have

described is inherent in the provisions by

which the Minister's power is created: cf.

per Diplock LJ., Mixnam's Properties Ltd. v.

Chertsey Urban District Council (1963) 3

WLR 38, at p 53."

76. Here the questions at issue do not concern the validity of regulations or orders made pursuant to regulations, nor do they concern conditions imposed on the grant of a licence. But, contrary to submissions relied upon by counsel for the Tribunal, they involve more than compliance with a simple request for information. As mentioned, the Tribunal has given a direction pursuant to s. 17 of the Act requiring compliance. The consequence of failure to comply with that direction may be serious as I have pointed out. This is despite the fact that what was given by the Tribunal was a direction. It did not purport to make an order. If it had, the position of the applicants may have been stronger because orders made by the Tribunal have the force of law; para. 17(2)(c). Nevertheless, the consequences are serious enough. Like Kitto J. in the case which he had, I think that the legislation here authorizing the making of directions under the Act ought to be construed so as not to empower the making of any such direction unless it is capable of being complied with with reasonable certainty. Otherwise a licensee providing the information may put its licence in jeopardy or adversely affect its chances of having its licence renewed. I do not believe the legislature intended that to be the consequence of what it provided for.

77. Notwithstanding those considerations, it does remain necessary to bear in mind the exercise which is involved. The Tribunal's actions do not have the force of law in the way that an order would, they do not impose conditions on the applicants' licences and they are not regulations. They are requirements that information be provided and no more. It would be wrong to give to the terms of such a request any strict or technical construction. In other words, the Tribunal should be allowed a sensible degree of flexibility in formulating the terms of its requirements. Only where the language used by it is plainly uncertain so that the licensee is placed in a real quandary about what is required, should the return, or the relevant parts of the return, be found to be invalid.

78. The second general matter upon which counsel relied was a submission that the terms of the schedules and the accompanying notes were themselves comprehensive and did not require the licensees completing the return to have regard to any material outside the schedules and the notes themselves. I think this is largely true, but if terms used in the schedules have a well-recognized meaning in the industry, then I see no reason why that meaning should not be accorded the terms in the schedules and the notes.

79. I now come to the specific matters relied upon.

(a) In counsel's submission schedule K was vitiated by the

words, "whether broadcast or not", in the opening

paragraph of the schedule and the words, "intended for

telecast", which later appear under the heading, "Outside

Broadcasts". I have earlier quoted the two opening

paragraphs which lead in to the body of the notes to

schedule K and referred to the paragraph in which the

words "intended for telecast" are to be found. Counsel

submitted that it was not open to the Tribunal to seek

information about the costs of expenditure incurred in

producing Australian programs unless they were broadcast

nor information about such costs in relation to programs

which it was intended to telecast at some time in the

future. Counsel for the Tribunal said that this was to

enable the Tribunal to have information about programs

ultimately intended to be broadcast but not broadcast in

the year of the return or, perhaps, programs which had

been produced but which had not been proceeded with. I

think the paragraph needs to be read in the light of the

overall context of what is being sought in the return. It

is information about broadcasting. The meaning contended

for by counsel for the Tribunal seems to me to be a

sensible interpretation of what the schedule requires.

Its requirement is thus well within power and I reject the

submission made by counsel for the applicants about this

matter. In doing so I have taken into account the

decision of Devlin J. (as he then was) in Potato Marketing

Board v. Merricks (1958) 2 QB 316 at pp 332-3 relied

upon by counsel for the applicants. Although that case

has some similarity to the present, it is a case upon the

legislation there in question and its own facts. I do not

think that it bears on the determination of the question

here involved.

(b) Counsel for the applicants submitted that, although the

second of the opening paragraphs of the notes to schedule

K referred to "costing principles specified in Annexure

1", there was no Annexure 1 with the consequence that a

licensee filling out schedule K would not be able to do so

because it would not know what costing principles were to

be applied. It is correct to say that schedule K itself

has no Annexure 1. However, as I have earlier mentioned,

counsel for the Tribunal drew my attention to Annexure 1

to schedule C which is headed, "Principles and practice of

program costing". Schedule C is entitled, "Profit & Loss

Account". The notes to schedule C, but not schedule C

itself, make some reference to Annexure 1 which, apart

from its heading, is blank. These references are to be

found in the following paragraphs of the notes.

(i) Paragraph 1 is headed, "Operation Revenue".

Sub-paragraph 1.1.3 is headed, "Contras". It says

that the money value of any goods, services or

benefits received by the licensee as consideration

of the granting of air time are to be shown. It

adds that for the purpose of this section of the

return, the money value will be equal to the income

that would have been derived if the air time had

been charged as per the rate card. The paragraph

continues, "If rate card valuation is not used, the

valuation method is to be shown in Annexure 1

(Profit & Loss Account)..."

(ii) Paragraph 2 of the notes to schedule C is headed,

"Operating Expenses". Paragraph 2.1 is headed,

"Cost of Australian programs broadcast". Amongst

other things it says, "Information on amortisation

procedures should be set out in explicit notes in

annexure 3 to schedule G, while comments on program

costing procedures should be included in the

appendix (sic) to this Schedule ..." Later the

paragraph says that the detailed definitions of

program categories are set out in the notes to

schedule K and that the categories used in the

profit and loss account and schedule of program

inventory movements are the major headings. The

paragraph says that these prime costs should be

divided by program and there follows the list of

categories to be found in schedule K. The

paragraph finishes with an indication of how the

total prime costs of Australian programs broadcast

is to be derived. Schedule G is entitled, "Program

Inventory Movements". The second paragraph of the

notes to schedule G says that the value of

amortisation must be disclosed in schedule G, items

1.1 (Australian) and 1.2 (overseas), "while the

method should be described in Annexure 3." The

heading to Annexure 3 is, "Description of Program

Amortisation Principles & Practice". As might be

expected the annexure is blank.

I think the reference to Annexure 1 in schedule K should

have been more clearly expressed, if not in the schedule

itself, then in the notes. But the return should be read

as a whole and, although I have some reservation about the

matter, I think the better view is, as counsel for the

Tribunal contended, that the reference to Annexure 1 in

the second paragraph of schedule K is intended to be a

reference to Annexure 1 to schedule C. What is being

referred to is so much of the notes to schedule C to which

I have referred, namely, "while comments on program

costing procedures should be included in the appendix to

this Schedule."

I think that this must be so because the annexures to the

return are numbered consecutively. There is no

duplication of numbers. Thus Annexures 1 and 2 follow

schedule C in which they are referred to, whilst Annexure

3 appears at the end of schedule G. There is no other

annexure to that schedule.

Counsel for the applicants relied on the fact that the

document appended to schedule C was described in the notes

as an appendix, but was in fact an annexure. This does

not vitiate the document. Obviously the annexure which

appears at the end of schedule C has been misdescribed in

para. 2 of the notes to schedule C as an appendix.

Once one concludes that the Annexure 1 referred to in

schedule K is the same document as Annexure 1 in schedule

C, it becomes clear, particularly from para. 2.1 of the

notes to schedule C, that it is for the licensee to

complete it. Counsel for the applicants drew my attention

to later paragraphs of the notes to schedule C (paras.

2.5.5, 2.6.3 and 2.7.4) which require an explanation of

the information furnished in relation to them to be

appended in note form at the end of schedule C. I do not

think that those paragraphs have any relevance to the

present problem.

The submissions made by counsel about Annexure 1 are

rejected.

(c) The next submission is based upon an earlier quoted

paragraph of the notes to schedule K which said that on

the following pages, the categories under which costs are

required are defined and that a general guide to

determining the category under which a program is to

appear are the "content points" that are allocated under

each heading. No content points are specified as having

been allocated in schedule K or elsewhere in the notes

thereto. That is enough, in the submission of counsel for

the applicants, to render schedule K uncertain and thus a

requirement that it be completed unlawful.

It seems clear to me that what was being referred to was

the content points which are provided for in Television

Program Standard 14 ("TPS 14"). The Standard is headed,

"Australian content of television programmes". The

relevant paragraphs of the Standard are paras. (a) and

(d). These are as follows:-

"A licensee must:

(a) Transmit Australian

programmes so that, by

applying the schedule of

points per hour per programme

in TPS 14(d), a total number

of points not less than the

number of hours of programme

transmission, is attained

over the full statistical

year of 52 weeks. For the

purposes of this requirement,

the period between 12

midnight and 6 am the

following day will be

disregarded.

...................................

(d) The number of points to be

allocated to a programme

shall be determined by

firstly deciding the

programme category applicable

to the programme by reference

to the definitions contained

in this standard; secondly,

referring to that programme

category in the table, by

reading the applicable number

of points depending on

whether the programme is

transmitted either in peak

time or off-peak time, and is

the first release or first

repeat of the programme. In

the case of programmes in the

categories of Drama

part-indigenous, light

entertainment and Information

programmes where a scale of

points applies to the

programme category, points

will be allocated to a

program (sic) in accordance

with the criteria contained

in the relevant program

category definition."

Following these paragraphs is a schedule of points per

hour for Australian programs. The schedule is divided

into points awarded for programs shown at "Peak time" and

at "Off-peak time". There is a further division into

first release and first repeat. There then are listed

categories of program. In some of these cases, as para.

(d) of the Standard says, a range of points is indicated.

In the category of "Drama part-indigenous (One-Shot

Series, Serials and Post-1966 Cinema Films)", points which

may be earned vary between 3 and 19 per hour with the

possible addition of further points which may be earned in

certain circumstances to which it is unnecessary to refer.

That is the range if the program is shown as a first

release in peak time. If it is shown as a first repeat,

the range is 1 to 5. If shown in off-peak time, the first

release may earn between 2 and 9 points and the first

repeat between 0.5 and 2 points. In the category of

"Light entertainment (including variety, tonight shows,

quiz and panel shows)", the range for first release peak

time is 0.5 to 10, for first repeat shown in peak time

from 0.5 to 3, for first release shown in off-peak time

from 0.5 to 5 and for first repeat shown in off-peak time

0.5 or 1. There are also ranges specified in relation to

information programs.

Counsel for the applicants drew attention to the words at

the end of para. (d) of the Standard which say that, in

the case of programs in the categories of drama

part-indigenous, light entertainment and information

programs, where a scale of points applies to the program

category, points will be allocated to a program in

accordance with the criteria contained in the relevant

program category definition. I was informed by counsel

for the applicants without objection from counsel for the

Tribunal that these allocations are not made known to

licensees at the time they are made, but at later points

of time, perhaps at the time a licence comes up for

renewal.

Counsel for the applicants, when counsel for the Tribunal

relied upon the points table in the program standard,

contended that it itself was so uncertain as not to be a

valid exercise of power. That is not a question which I

find it necessary to come to a conclusion about in this

application. What the Tribunal has done is to refer to it

for the purposes of the return it requires completed. In

that sense the Standard is incorporated by reference into

the documents in question here. The validity of the

Standard is therefore not in question; the lawfulness of

its use by the Tribunal in the documents here does not

depend on whether the Standard itself is a valid exercise

of power.

The question then is whether the sentence containing the

reference to content points which I have earlier quoted

vitiates what follows because of the uncertainty which it

creates. Some of the categories do not provide for a

range of points. This is so in relation to all indigenous

drama. There are three categories - "Drama one-shot

(includes mini-series, anthology series)", "Drama series

and post-1966 cinema films" and "Drama - Serials -

Indigenous". It follows that counsel's criticism does not

apply to indigenous drama because in every case there is

no range of points. There is only a range if the drama is

part-indigenous. Nevertheless, there is no indication in

the notes to schedule K that only wholly indigenous drama

is being referred to. The relevant part of the notes has

the heading, "Australian program categories". The purpose

of the schedule is to tell the Tribunal the cost of

production of Australian programs. I see no reason to

omit from the information which is supplied information

about the cost incurred in producing a drama which is

partly indigenous.

At first sight, it is not easy to perceive how the number

of content points allocated by the Tribunal in relation to

a particular program can have any bearing on the category

or subcategory into which the program should be placed.

The category of "Drama part-indigenous" is divided into

one-shot series, serials and post-1966 cinema films. The

meaning of some of these expressions is affected by the

way in which indigenous drama is described. There are

three separate categories for indigenous drama, namely,

drama one-shot, which includes mini-series and anthology

series, drama series and post-1966 cinema films, and drama

serials. Whether one construes the words used in relation

to drama which is part-indigenous alone or construes them,

as I think one should, with the aid of the expressions

used in relation to indigenous drama, problems arise

because the subcategories are by no means the same as

those provided for in schedule K. For instance, the

schedule contains no reference to cinema films (post-1966

or otherwise). All cinema films appear to be excluded

from schedule K. Mini-series and serials are included in

both, but there are difficulties, for example, about

anthology series (referred to in the Standard but not in

the schedule) and about telemovies (which are not

mentioned as such in the Standard and which exclude

productions which have had previous theatrical or cinema

release, post-1966 or otherwise). All this begins to

indicate that the reference to content points in schedule

K was not very wise. Further problems emerge when one

considers other program categories which provide for a

range of points, namely, light entertainment and

information programs, and then tries to understand how the

content points prescribed for them can provide any

assistance in completing schedule K. The range of points

cannot shed light on which of the various subcategories

properly describe a program. One would not expect it to.

Undoubtedly, the Tribunal must take into account a variety

of matters before determining the particular points to be

awarded. It seems unlikely that the particular category

or subcategory into which the program falls will be to the

forefront of these.

In categories for which no range is provided, it is

impossible to see how "content points" can provide any

guide to the proper categorization of any program. Twenty

points are allocated for indigenous "drama one-shot"

whether it consists of a mini-series, an anthology series,

or some other type of drama which is properly described as

"one-shot". For other categories of indigenous drama,

five points are allocated. It follows that, where there

is no range of points, content points tell one nothing

about the appropriate category into which to place a

particular program.

These considerations have driven me to conclude that it is

impossible to perceive how content points can assist at

all in the proper categorization of programs in schedule

K. The reference to them in the notes to schedule K was

thus not just unfortunate; it was confusing to say the

least. It was in these circumstances that counsel for the

Tribunal submitted that the sentence of the paragraph

which contains the reference to content points was

irrelevant and should be ignored. He said that its

presence did not invalidate the schedule which was

otherwise clear, or at least clear enough, as I think it

is.

I confess to having found the problem which the reference

to content points in the schedule poses a difficult one.

I do not think that it can be lightly put aside. But the

sentence does open with the words, "A principal guide to

determining the category ..." Thus the purpose of the

sentence is to give general guidance rather than to

specify precisely what is required. The sentence, far

from giving guidance, has the opposite effect by replacing

it with confusion. The question is whether a licensee,

acting reasonably in the context of the exercise in which

it is required to participate, should be expected to

perceive this and disregard the sentence, or whether it is

open to the licensee to take the view that the sentence

has brought such confusion and uncertainty into the

exercise as to make the return impossible to complete

because the licensee cannot know into which categories to

place its programs.

The senior executives of television stations are not

ordinary members of the public who are unlikely to have

close knowledge of the television industry. They are

familiar with television programming, program categories

and the Standard. With some hesitation, I think the

better view is that the reasonable licensee, acting

through responsible executives, would ignore the proffered

guidance and complete the return without concerning itself

further about content points. I therefore reject the

submission based on that matter.

(d) The final matter of criticism made by counsel for the

applicants in relation to schedule K was that there was an

overlap in relation to some of the categories. It was

submitted, for instance, that category 1 was drama but the

sub-category, "arts", in sub-para 4.2, provided for

classical drama. It was said that the licensee would be

left in a state of uncertainty whether to categorize some

dramas under category 1 or under category 4. Other

examples were given. I have decided that this submission

should be rejected. As I have said, the return is

required to be completed by persons familiar with the

industry. Minds may differ on the question whether a

particular program properly fits the phrase "classical

drama", but I think it unlikely that this will give rise

to many problems. Furthermore, if a program is on the

borderline, no complaint could possibly be made by the

Tribunal if, in good faith, it were classified within a

category with which it disagreed.

(e) That completes my treatment of the detailed matters of

criticism raised in relation to schedule K. I turn to the

matters relied upon in relation to schedule L. The first

matter of criticism was the distinction drawn in the

schedule in relation to full time staff, part time staff

and casual staff. These are ordinary expressions used in

relation to employment of people in a variety of

undertakings. I cannot think that the need to distinguish

amongst staff in this way could possibly occasion a

reasonable licensee any difficulty. I agree that the

definitions of full time, part time and casual staff which

appear in the notes to schedule L are not particularly

illuminating, but that does not invalidate the Tribunal's

requirement that the schedule be completed. Counsel for

the Tribunal tendered the Television Industry Award 1987

which contains definitions of part time and casual

employees. Counsel for the applicants submitted that it

was irrelevant. I do not take this view. I think the

award was a relevant matter for licensees completing the

return to have regard to in appropriate circumstances and

that the definitions also demonstrate that the expressions

"part time staff" and "casual staff" do have a

well-recognized meaning in the industry. The first of the

submissions made in relation to schedule L is rejected.

(f) The next submission was made in relation to the note which

follows definitions of full time, part time and casual

staff in the notes to schedule L. I have earlier quoted

it. It said that if it was felt that the numbers of staff

quoted were not a true representation of the licensee's

staff levels, the schedule should be noted and full

details attached. In my opinion the meaning of the note

is clear. It relates to the terms of the definitions of

each of the categories of staff which require the number

of staff employed in each of the categories as at 30 June

in a given year to be stated. Quite clearly these figures

may, in some exceptional cases, not give a true indication

of staff levels during the year, perhaps because of some

substantial increase or falling off of numbers towards the

end of the year of the return. Again, I cannot imagine

that the presence of the note would occasion any

reasonable licensee major difficulty.

(g) It was submitted that so much of the notes as appeared

under the heading "Production" (I have earlier quoted this

paragraph) related at least in part to a non-broadcasting

activity because of the reference to production of

non-program material. Counsel submitted that the Tribunal

was not entitled to any information which had no relation

to any broadcasting activity. There may be a degree of

tenuousness about the relationship of non-program material

to broadcasting (using that expression in the wide sense

which I have earlier indicated), but I am not prepared to

invalidate schedule L or any part of it on this ground.

(h) Schedule L requires staff to be broken up into numbers of

male and female staff. This was another matter which was

said to have no possible connection with broadcasting. I

reject this submission. I think, as I have earlier

indicated, that the Tribunal is entitled to gather

information which will guide it in a general way in

relation to its overall task of administering the Act. It

is entitled to inform itself of the profile of the staff

of a variety of television licensees. I agree that it is

not in terms concerned with broad social questions such as

the employment of women in the work force, the seniority

they achieve in it, the provision of equal opportunity,

discrimination against women (or, for that matter, men) or

affirmative action. Nevertheless, in this day and age I

think a regulatory body such as the Tribunal here is well

entitled to have information which will give it a complete

picture of the staff profile of companies to which it

grants licences. If this led it eventually to seek to

give directions or exert pressure to compel some change,

there may be a question of its powers. I express no view

on this matter. All I say is that I am of opinion that it

is entitled to the information which it seeks.

(i) It was then submitted that the frequent use of "etc" in

the notes to schedule L made it uncertain. The use of

this abbreviation is to be perceived in paragraphs from

the notes which I have earlier quoted. For instance,

reference is made to categories of activity or categories

of staff. In each case these are followed by "etc". Thus

there are the expressions "... set construction, film

processing, technical directors, etc." and "...

presenters, interviewers, researchers, writers, etc."

There are other examples but I do not need to refer to any

more. I regard the submission as de minimis and I reject

it.

(j) Finally, there was a submission based on the use of the

word "traffic" in a paragraph of the notes headed,

"Sales". The paragraph says "Staff who are totally

involved with the selling of time and handling of

commercials, for example, sales representatives,

secretarial, clerical, traffic, etc.". I agree that there

may be some uncertainty about the meaning of "traffic",

but I think that, in the context in which it is used it

must refer to persons employed in transportation or

delivery work. Certainly the presence of the word in that

paragraph, which after all, is contained in notes provided

as a guide to the filling in of the return, cannot vitiate

the whole exercise.

80. It follows that I reject the submissions made by counsel for the applicants based open the detailed provisions of the two schedules and the notes thereto.

81. That completes my consideration of the various submissions which were made. In summary, I have decided to uphold the first submission which related to the requirement for a statutory declaration. Each of the other submissions is rejected. For reasons earlier given, it is inappropriate now to make any declarations or orders. I propose to stand the matter over for a short time to enable the parties and their legal representatives to consider what I have said. When the matter is again in the list, counsel should have available short minutes of declarations and orders appropriate to give effect to my decision. As necessary, I shall hear any further submissions that there may be in consequence of my decision concerning the unlawfulness of the requirement for the furnishing of a statutory declaration. I shall also hear argument on costs.

82. I delivered reasons for judgment in this matter on 24 April last. I did not then make any declarations or orders but stood the matter over for short minutes. Counsel brought in short minutes of declarations and orders to give effect to my decision on 22 May last. During the discussion that ensued about these I raised with counsel the question whether, although I had found that the Tribunal was empowered to require the applicants to provide the information sought in schedules K and L to the form ABT12, which was in question, the requirement which it had made up to that time was valid as to those schedules because the requirement might be read as one requiring the furnishing of a statutory declaration and thus as requiring the information only if it were verified.

83. I asked counsel to give me some assistance on this question and to that end each lodged written submissions which I considered before the matter came back into the list today. In the result there was no issue about the matter I had raised. Counsel for the applicants has conceded that the Tribunal, although it was not empowered to require verification by statutory declaration of any of the information in the form ABT12, was nevertheless obliged to provide unverified the information required in schedules K and L, which were the subject of dispute in the proceedings. In those circumstances there is nothing for me to decide about the matter, and it remains to make appropriate declarations and orders. In the event the parties now agree about the form of the two declarations which need to be made; they are in dispute as to the question of costs.

84. I have not found resolution of the appropriate order for costs without difficulty. The matter, as I indicated in the reasons for judgment earlier published, proceeded over a period of some five days, although it is true to say that each of those days was not fully occupied in the hearing of this matter. There have also been, of course, the consequential hearings as a result of the need to consider the point just mentioned which, as matters have turned out, has been resolved unfavourably to the applicants. I think the best way of approaching the matter is to make a fractional order rather than endeavouring to reach a conclusion as to precisely what each party should pay in respect of costs. In a sense the applicants have had substantial success because they have succeeded on the question of the statutory declaration, but the time occupied in relation to that issue was much less than a day and substantial time was occupied in relation to the arguments that ensued in relation to schedules K and L.

85. In the circumstances I do not think it would be right to order, as counsel for the applicants has asked me to do, that the Tribunal pay the whole of the applicants' costs of the proceedings; nor do I think it would be right to go to the other extreme. In the circumstances and after due reflection I think justice will be done if I order the applicants to pay one third of the Tribunal's costs of the application. That is the order which I propose to make.

86. I have been informed that the applicants intend to appeal against my decision. A stay of proceedings will not assist them in the circumstances, but I am prepared to order that the respondent be restrained, pending the hearing of the appeal, from requiring completion of schedules K and L. In return for that restraint I shall require an undertaking from the applicants for the due prosecution of the appeal and I propose to make an order abridging the time within which an appeal may be lodged to 14 June. Liberty to apply will be reserved.