The Tribunal directs that, subject to any order or direction which may hereafter be given, :

(1) On or before 20 March 1981 each party other than The Australian Broadcasting Tribunal lodge with the Administrative Appeals Tribunal and deliver to each other party including The Australian Broadcasting Tribunal a statement setting out the facts, matters and contentions top p. upon which the party will rely at the hearing of this review. The statement should refer to all relevant matters upon which the party intends to rely including,

(i) matters relating to any alleged breach of s.92 of the Broadcasting and Television Act 1942, and

(ii)any matters which bear upon relevant public interest, whether it relates to a view of public interest derived from the intent or policy of the Broadcasting and Television Act, a view of public interest derived from the nature and functioning of the television industry, a view of public interest derived from the organisation and acts of the applicant companies and their associates or otherwise,

and stating what ownership and control, direct or indirect, of the company holding the licence is alleged best to accord with the public interest and in what manner refusal to grant approval under s.92F(2) is necessary to or will serve to maintain such control;

(2) On or before 20 March 1981 The Australian Broadcasting Tribunal lodge with the Administrative Appeals Tribunal and deliver to each other party a statement setting out the facts, matters and contentions upon which The Australian Broadcasting Tribunal will rely at the hearing of this review, in so far as such facts, matters and contentions are not set out in the reasons for decision of The Australian Broadcasting Tribunal. Such statement should contain a full statement of any relevant policy of the Government or of The Australian Broadcasting Tribunal and any relevant practice of The Australian Broadcasting Tribunal and should identify any document or documents in which such policy or practice may be stated and any decision or decisions of The Australian Broadcasting Tribunal in which such policy or practice has been implemented;

(3) On or before 3 April 1981 each party deliver to each other party proofs of the evidence of the witnesses which the party proposes to call at the hearing of the review;

(4) On or before 3 April 1981 the parties exchange copies of all documents upon which they will rely at the hearing of the review;

(5) On or before 3 April 1981 each party deliver to each other party and lodge with the Administrative Appeals Tribunal a list of the documents and oral evidence adduced before The Australian Broadcasting Tribunal which the party wishes to be taken into account in this review;

(6) On or before 3 April 1981 each party deliver to each other party and lodge with the Administrative Appeals Tribunal a list of the witnesses before The Australian Broadcasting Tribunal whom the party wishes to cross-examine in this review if their evidence is taken into account in this review;

(7) The hearing commence on 13 April 1981 in No. 1 Court Room, 450 Little Bourke Street, Melbourne, at 10.15 a.m.;

(8) Leave be reserved to each party to apply for revocation or variation of any of the above directions or for any further or other direction as may seem meet.

On 27 February 1981, I gave directions as to further proceedings in this review. These are my reasons for those directions.

This is a review by the Administrative Appeals Tribunal of a decision by The Australian Broadcasting Tribunal not to grant approval under s.92F(2) of the Broadcasting and Television Act 1942 to a certain transaction in so far as that transaction affected each of the applicants. Relevant provisions of s.92F are:

"(2) Where, on or after the date of commencement of the Broadcasting and Television Act 1965, a transaction in relation to which this section applies to a person is proposed or has taken place, that person may apply to the Tribunal for approval of the transaction in so far as it affects that person, and the Tribunal may, subject to this section, grant or refuse approval.

(4A) The Tribunal shall not refuse to grant approval under this section, and shall not give a notice under sub-section (3), unless the Tribunal -

(a) is of the opinion that the transaction has resulted or would result in a contravention by the person concerned of section 92; or

(b) considers it necessary to do so in order to maintain such ownership and control, whether direct or indirect, of the company holding the licence as, in the opinion of the Tribunal, best accord with the public interest.

(5) A person who becomes a party to, or accepts benefits under, a transaction, being a transaction in relation to which this section applies to him, without the approval of the Tribunal having been given to the transaction in so far as it affects that person is guilty of an offence against this section."

I have not been addressed fully as to the issues which may arise in this review and I therefore make no determination as to what those issues will be. However, it appears that the Tribunal will be called upon to decide what is the correct and preferable decision to make under s.92F(2) having regard to:

(i) any contravention of s.92 of the Broadcasting and Television Act by all or any and which of the applicants,

(ii) any necessity to refuse approval in order to maintain such ownership and control, whether direct or indirect, of the company holding the licence as best accords with the public interest,

(iii) the public interest as gleaned from the terms of the Broadcasting and Television Act, from the nature and functioning of the television industry and from the circumstances and operation of ATV-10 before and after the change in its control, and

(iv) relevant circumstances of the applicants and of all other persons whose interests may be affected by the grant or refusal of the approval.

It may also be relevant whether the applicants or any of them were guilty of an offence under s.92F(5) by virtue of the part they or it played in relation to the transaction.

The first submission with which I should deal is that of Mr Morris, junior counsel for the Australian Labor Party. Mr Morris submitted that the Tribunal has a discretion conferred by s.43 of the Administrative Appeals Tribunal Act 1975 not to proceed to review the subject decision on its merits but to limit its review to justiciable issues with a view to determining whether the subject decision was wrong in law.

The Administrative Appeals Tribunal was established following upon a number of reports. The first and perhaps the most significant of these was the 1971 report of the Commonwealth Administrative Review Committee, comprised of The Honourable Mr Justice J.R. Kerr, The Honourable Mr Justice A.F. Mason, R.J. Ellicott, Esq, QC, and Professor H. Whitmore. That report discussed both judicial review and review on the merits, and after discussing the then current principles of judicial review, commented:

"58. It is generally accepted that this complex pattern of rules as to appropriate courts, principles and remedies is both unwieldly and unnecessary. The pattern is not fully understood by most lawyers; the layman tends to find the technicalities not merely incomprehensible but quite absurd. A case can be lost or won on the basis of choice of remedy and the non-lawyer can never appreciate why this should be so. The basic fault of the entire structure is, however, that review cannot as a general rule, in the absence of special statutory provisions, be obtained 'on the merits' - and this is usually what the aggrieved citizen is seeking."

Having regard to the provision of the Administrative Appeals Tribunal Act 1975, subsequently enacted, it can hardly be doubted that the Act gave effect to this recommendation. The Act provides for a tribunal some of the members of whom are not lawyers but are selected because of their special knowledge or skill in relation to a class of matters in respect of which decisions may be made. The Act confers upon the Tribunal fact-finding powers and confers the power to set aside a decision and to make a decision in substitution for the decision so set aside. The Act empowers the Tribunal to exercise all the powers and discretions that are conferred by any relevant enactment upon the person who made the subject decision. Clearly the Act established a tribunal whose function and duty it is to review administrative decisions on their merits. In Drake v. Minister for Immigration and Ethnic Affairs, 2 ALD 60 at 68, Bowen CJ and Deane J stated the function of the Tribunal as follows:

"The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal."

In Collector of Customs (New South Wales) v. Brian Lawlor Automotive Pty Ltd, [1979] FCA 21; 2 ALD 1 at 23, Smithers J said:

"It is important to observe that the Tribunal is not constituted as a body to review decisions according to the principles applicable to judicial review. In essence the Tribunal is an instrument of government administration and designed to act where decisions have been made in the course of government administration but which are in the view of the Tribunal not acceptable when tested against the requirements of good government."

Mr Morris submitted that the word "may" in s.43 of the Administrative Appeals Tribunal Act imports an element of discretion so as to authorise the Tribunal to limit its function as it sees fit. But the provision "For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision..." is not concerned to confer upon the Tribunal authority to limit its function but rather to confer upon it an amplitude of powers so that the Tribunal may exercise, if it is convenient and useful to do so, not only the decision-making power upon which the decision-maker relied, but all relevant powers and discretions which were conferred by the enactment upon the decision-maker. The provision extends the authority of the Tribunal so that it may more adequately exercise its function of reviewing on the merits the subject decision.

That is not to say, however, that the decision-maker's reasons for decision are entirely irrelevant in a proceeding before the Tribunal or that the Tribunal must look at the whole matter entirely de novo without reference to what the decision-maker has said about the issue in dispute. Rather, it is a necessary inference from s.37 of the Administrative Appeals Tribunal Act, which requires the decision-maker within twenty-eight days after receiving notice of application for review to lodge with the Tribunal a statement setting out his findings on material facts, referring to the evidence or other material on which those findings were based and giving reasons for the decision, that the statement so provided is a relevant matter which the Tribunal may take into account in the review. Section 38, which empowers the Tribunal to order that an additional statement be provided by the decision-maker in a case where it is of the opinion that the statement provided does not contain adequate particulars of findings on material questions of fact, and adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for decision, affirms the relevance in a review both of the findings of fact which were made by the decision-maker and of the reasons of his decision.

Section 33(1)(c) of the Administrative Appeals Tribunal Act empowers the Tribunal to inform itself on any matter in such a manner as it thinks appropriate. If the Tribunal considers it appropriate in its review to rely upon a finding of fact set out in the reasons of the decision-maker, it may, in my opinion, do so. In a case where the decision-maker is a person or Tribunal having a special expertise or knowledge of facts in a particular area, it may well be appropriate to do so. And, as the Tribunal is required by s.33 to proceed with as much expedition as a proper consideration of the matter before the Tribunal permits, I have in other reviews relied upon reports published by persons or Tribunals other than the decision-maker. See, eg, Barbaro v. Minister for Immigration and Ethnic Affairs, delivered 17 December 1980. If such reliance may be placed upon the reports of other persons, there is no sound reason why reliance should not be placed upon findings of fact expressed by the decision-maker. It will, from time to time, be appropriate to rely upon a finding of fact expressed in the decision-maker's statement where the matter does not depend at all upon expertise but is a finding which the Tribunal considers it should take into account because of the delay and expense which would otherwise be involved in investigating the matter. Moreover, in a case where Government policy is relevant or where practice should be taken into account with a view to obtaining consistency of decision, it will be relevant and appropriate to have regard to the reasons for decision if those reasons express the relevant policy or practice.

For these reasons, I am of the view that when the Tribunal approaches its task of determining what is the correct or preferable decision on the material before it, the Tribunal may have regard to the findings of fact and the reasons for decision of the decision-maker for that is part of the material which the Act contemplates may be used by the Tribunal.

That is not to say, however, that the Tribunal should accept a fact stated in a s.37 statement unless that fact is disproved. Section 33 provides that the Tribunal may inform itself on any matter in such manner as it thinks appropriate. The Tribunal will not rely upon a finding of fact set out in a s.37 statement unless it considers it appropriate to do so. It may, if a matter of practice or policy is stated in the reasons, think it appropriate to rely upon that statement or it may think it appropriate to require other evidence to be given of the practice or policy. The Tribunal has a wide jurisdiction and a course of action which may appear appropriate in one case may not be appropriate in another. The Tribunal is directed to proceed with as little formality and technicality and with as much expedition as a proper consideration of the matter before the Tribunal permits. The manner in which a particular review proceeds must depend upon particular circumstances of that review.

I therefore make no comment at this stage as to the reliance, if any, which may be placed upon any matter contained in the reasons for decision of The Australian Broadcasting Tribunal. That is a matter which will have to be considered as the review develops.

I turn next to the submission by Mr Shand, QC, senior counsel for the applicants, that an order should be made under s.38 of the Administrative Appeals Tribunal Act 1975 requiring The Australian Broadcasting Tribunal to provide an additional statement containing further and better particulars in relation to a number of matters in the reasons of The Australian Broadcasting Tribunal. Mr Shand drew attention to several passages in paragraphs 48 and 49 of the reasons for decision of The Australian Broadcasting Tribunal. Of these, the most significant are:

"The Tribunal, through the ATV-10 licence renewal inquiry in 1979 and this inquiry are well aware of some shortcomings in the performance both as to programming and technical facilities of ATV-10 in Melbourne. However, for the reasons we have stated in the section on networking we do not believe the above benefits outweigh the disadvantages. The opportunity would exist for production decisions to be made by one organisation which could dominate a four city market, including Melbourne, and we agree that the specific needs of the Melbourne public are not identical to those of Sydney."

"It is a matter of concern that a situation has arisen in which one group could dominate the 10 Network."

"The relationship which exists between TVQ-O and the News Group causes the Tribunal concern. ... However, in our opinion there is a real probability of influence resulting from this transaction."

"Some of the effects of the joint control of the Sydney/ Melbourne stations, and the indirect influence on the Brisbane station can already be seen in the distribution of programs. One Sydney produced program 'SIMON TOWNSEND'S WONDER WORLD' which was shown only in Sydney for quite some time now is being shown both in Melbourne and Brisbane. Evidence was given that the 'JOHN SINGLETON SHOW' also produced in Sydney by Channel 10 was initially rejected by ATV-10 Melbourne. It is now being considered for Melbourne, and it was stated that it would probably also be shown in Brisbane and Adelaide."

"The Tribunal is of the view that the concentration of media interests by the News Group resulting from the common ownership of Sydney and Melbourne, will have an adverse effect on the freedom of choice of the other members of the network, and is not in the public interest. We have also noted with concern the other television interests of the News Group (see attachment B) and are of the opinion that further dominance by this group would not be in the public interest."

It is not entirely clear from these and like statements whether The Australian Broadcasting Tribunal was taking an objection to the networking arrangement of the News Group because of the manner in which the News Group had exercised its control or whether it was taking an objection to the networking arrangement and to the concentration of media interests in the News Group because of a view which the Tribunal held on networking and control as a matter of principle. The Australian Broadcasting Tribunal appears to have been more concerned with the principle of networking than with the manner in which the News Group operated ATV-10. Even so, it is not clear whether the point of principle on which the Tribunal relied is one derived from the policy of the Broadcasting and Television Act or one which the Tribunal derived from its own knowledge of the manner in which networking and interlocking control operates. For example, it is not clear to a reader who has not viewed either programme whether it was thought that the showing of "Simon Townsend's Wonder World" or the "John Singleton Show" outside Sydney would not be in the public interest or whether the Tribunal merely had in mind a restriction on freedom of choice which the Tribunal thought was undesirable.

For these reasons, there are, I think, grounds for making an order under s.38 should that appear to be the desirable course. But Mr Shand's main concern was that the applicants should know what case they will have to meet at the hearing of this review. In argument, he said,

"Do we, for instance, as the applicant, set to work to show that, in the way in which the networks have operated over the last ten years and more, even though the opportunity for influence has been there, it has not happened or are we confined to a philosophical discussion about the hypothetical desirability of the opportunity existing? We are left in a state of total doubt."

In my view, this is a matter which can be dealt with more readily by directions as to the future conduct of this review than by the making of an order under s.38. The most important matter is not the obtaining of further particulars of what The Australian Broadcasting Tribunal had in mind when it made its decision but clarification of what will be the issues raised at the hearing of the review. Clarification of the reasons of The Australian Broadcasting Tribunal will not necessarily achieve this. Moreover, The Australian Broadcasting Tribunal has given extensive reasons for its decision, the reasons have been made available to the public and have been extensively read. I think it would be undesirable now to ask the Tribunal to elaborate on what it then said. It has given its decision.

Although this Tribunal will have regard in this review to the reasons of The Australian Broadcasting Tribunal it is not clear to me at the present time that it will be appropriate for this Tribunal to rely upon as statements of fact any of the particular matters in the reasons of the Tribunal to which Mr Shand has drawn attention. I think the appropriate course is to refuse Mr Shand's request and hereafter to determine what matters in the reasons of The Australian Broadcasting Tribunal will be taken into account and what weight will be given to them in the light of the fact that Mr Shand's request for further and better particulars of matters contained in paragraphs 48 and 49 of the reasons has been refused.

Mr Shand and Mr G. Masterman, QC, senior counsel for Justice in Broadcasting, both addressed me on the question of onus of proof, Mr Shand submitting that there was an onus on The Australian Broadcasting Tribunal to show that it was necessary to refuse approval in order to maintain such ownership and control of the company as best accords with the public interest, Mr Masterman submitting that there was an onus on the applicants to show why approval should be granted. However, no question of onus arises at the present time. The Administrative Appeals Tribunal has a function to perform and a duty to perform it. The progress of the review, which is that function, is not dependent upon the presentation of evidence by one or more of the parties. The Administrative Appeals Tribunal has available to it to take into account in the review, should it consider it appropriate to do so, the reasons of The Australian Broadcasting Tribunal, a transcript of the evidence before The Australian Broadcasting Tribunal and copies of all documents which The Australian Broadcasting Tribunal considers relevant. These matters have been supplied to the Administrative Appeals Tribunal pursuant to s.37 of the Administrative Appeals Tribunal Act. Being empowered to inform itself as it thinks appropriate, the Administrative Appeals Tribunal may take all or some of that material as evidence before it. And the Tribunal is authorised and required to hold a hearing at which the parties may appear or be representd and which they may adduce evidence. During or at the end of the hearing a question of onus may arise as, for instance, because there are facts specially within the knowledge of a party which that party has not disclosed and does not wish to disclose. In such event, the Tribunal may see fit to come to its decision on an inadequate knowledge of the facts but in reliance upon a principle of onus or burden of proof. We are not, however, concerned with any such matter in this review at the present time.

The above comments deal with the principal submissions which were made to me on the directions hearing. I have drawn the directions given in the light of the views I have expressed.

It is not practicable now to determine the length of the hearing. I have directed that the hearing commence on Monday, 13 April 1981. I anticipate that it will continue on 14 and 15 April 1981 and that it will resume on Wednesday, 22 April 1981. I propose to reserve the remainder of April and much of May for the hearing of this review lest the hearing prove to be an extended one.

The directions given will not resolve all the matters of a procedural or a preliminary nature which will have to be dealt with. For example, the Tribunal does not proceed by way of pleadings and therefore will not be limited to the facts, matters and contentions raised by the parties in their notices. It may appear to the Tribunal that some other matter should be taken into account. It will also be necessary at some stage to determine what part of the material before The Australian Broadcasting Tribunal should be received in evidence at the hearing and whether any witnesses before The Australian Broadcasting Tribunal should be further cross-examined. The Tribunal will take into account but will not be bound by the notices in this regard which the parties deliver pursuant to my directions. These matters will have to be dealt with at a further directions hearing or during the hearing of the review.

Should it be desired that a further directions hearing be held prior to 13 April next, the parties or any of them may contact my associate.