Administrative Appeals Tribunal Act 1975 (Cth) s.30

Broadcasting and Television Act 1942 (Cth) ss.81, 86, 90M, 92H, 106

R. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Limited [1953] HCA 22; (1953) 88 CLR 100

Hughes and Vale Proprietary Limited v. The State of New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127

Ziems v. The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279

R. v. Australian Broadcasting Tribunal & Others; Ex parte Hardiman & Others [1980] HCA 13; (1980) 29 ALR 289

Re Control Investment Pty Ltd & Others and Australian Broadcasting Tribunal (No.2) (1981) 3 ALD 88

The decision under review is varied by deleting the condition that:

"Mr B S Treasure shall cease to be a member of

the board of directors of the licensee

company on or before 30 April 1987".

This is a review of a decision of the Australian Broadcasting Tribunal ("the ABT"), made on 4 February 1987, that the commercial radio station licence for station 6NOW-FM (herein called "96FM") be renewed for a period of three years to expire on 3 February 1990 subject to the condition that Mr B.S. Treasure, the party joined, should cease to be a member of the board of directors of the licensee company, New Broadcasting Limited, on or before 30 April 1987.

2. The original licence for station 96FM was granted on 7 December 1979, the licence being issued on 7 August 1980. It was renewed on 5 December 1983 for a term of three years. In 1986, application for renewal of the licence was lodged with the ABT in accordance with s.86(1) of the Broadcasting and Television Act 1942 (Cth) ("the Act"). Section 81(1) of the Act provides:

"81.(1) Subject to this Act, the Tribunal may grant

or renew a licence upon such conditions, and in

accordance with such form, as the Tribunal

determines."

"86.(12) On the renewal of the licence, the

Tribunal may vary or revoke any of the conditions

of the licence or impose further conditions, but

it shall not, without the approval of the

Minister, vary, revoke or impose a condition

relating to a matter referred to in the definition

of 'specification' in sub-section 80(1)."

3. Although the matter which is in dispute, namely, the requirement that Mr Treasure should cease to be a member of the board of directors of the applicant on or before 30 April 1987, was framed as a condition upon the licence, I am of the opinion for the reasons I shall later state that the issue falls to be considered under the provisions which authorise the ABT to refuse to renew a licence and which limit its discretion to do so rather than under the general discretion provided by s.81(1). The relevant provisions, in addition to s.86(12), are ss.86(11A) and 86(11B) which provide, inter alia:

"86.(11A) Except as provided in sub-sections (11B)

and (11D) and sections 86A and 86B the Tribunal

shall not refuse to renew the licence.

(11B) Subject to sub-section (11), the Tribunal

shall refuse to renew the licence if -

.....

(c) it appears to the Tribunal, having regard

only to the following matters or

circumstances, that it is advisable in the

public interest to refuse to renew the

licence :

.....

(ii) the Tribunal is satisfied that the

licensee -

(A) is no longer a fit and proper

person to hold the licence; or

(B) no longer has the financial,

technical and management

capabilities necessary

effectively to operate the

broadcasting station or

television station, as the case

may be, to which the licence

relates;

.....".

4. But for problems which had arisen with respect to Mr Treasure's personal taxation affairs, there was no issue with respect to the renewal of the licence for 96FM. In its reasons for decision, the ABT records that it told the applicant that, but for the matter of Mr Treasure's taxation affairs, there might not have been any need for a licence renewal hearing. There was a hearing but the hearing concentrated upon Mr Treasure's personal affairs. The reason for decision of the ABT records that:

"... Apart from that issue there is nothing in the

record of this inquiry which would suggest that

the licence should not be renewed for the full

term. ...".

Paragraph 3.1 of the ABT's reasons for decision records:

"3.1 The Tribunal noted at the hearing that it is

on record that 96FM is a very successful and

popular station. Attachment A shows that it has

consistently been the top rating station in the

market. 96FM appears to have complied with its

undertaking to provide an adequate and

comprehensive service, and use and encourage

Australian creative resources."

Not only was 96FM a successful station, being "the top-rating station in the market", but the information before the ABT disclosed that its Australian content was high. Thus, in the sample period for 1985/86, the percentage of music time with Australian compositions was 23.5% and, 29.3% of music transmitted was performed by Australians. The information prepared by the ABT for the assistance of the renewal hearing included the information that:

"The applicant maintains a long term commitment to

Australian performers and music and considers this

factor is a key element of its high popularity

with Western Australian listeners. The Station

has used a wide range of activities to promote

Australian talent."

The information also recorded that, during the last few years of operation, the station had had no contravention of the Act, no contravention of programme standards and no contravention of advertising standards. There had been no significant deficiencies in the lodgement of its renewal application, in the lodgement of statutory declarations under ss.90M and 92H of the Act, in the lodgement of financial accounts under s.106(1), or in its licence fee payments. The information recorded that problems which had been referred to at the time of the 1983 renewal of the 96FM licence had been overcome. No issue was raised as to lack of financial success or viability.

5. Thus, I conclude that, but for Mr Treasure's taxation affairs, there was no issue which would have justified a hearing of the renewal application. Indeed, the information indicated that during the preceding three years, 96FM had been a very successful station, had complied with the Act and the standards laid down by the ABT and had dealt with the few problems that had been raised at the time of the 1983 renewal.

6. Mr Treasure had had experience in advertising for newspapers. In late 1956 or early 1957, he was appointed advertising manager of a newspaper entitled "The Weekend Mail". In that position he came to know Mr J. Cruthers, who was joint editor of the newspaper. In late 1957 or early 1958, Mr Cruthers became responsible for making an application for the first commercial television licence in the Perth area. TVW Limited was granted that licence on 13 October 1958, Mr Cruthers was appointed general manager and Mr Treasure was appointed advertising manager. Subsequently, Mr Treasure took an increasing role in the affairs of the station TVW7, including programming. He became assistant general manager, general manager and a director and, in 1973, he was appointed joint managing director with Mr Cruthers. He resigned from TVW7 in December 1975 after 17 years with the station.

7. Subsequently, Mr Treasure acted as a media consultant for and assisted Mr K. Stokes and Mr J.M. Bendat. Over a number of years he acted as consultant to the Golden West network of television stations controlled by Mr J.M. Bendat and his son, Mr P.N. Bendat. Mr Treasure gave advice to Mr Stokes when Mr Stokes' interests acquired CTC7 Canberra in 1979.

8. In August 1979, when applications for the grant of a commercial FM broadcasting station licence to serve the Perth metropolitan area were called, Mr Stokes, Mr J.M. Bendat, Mr M. Edgley and Mr Treasure sponsored New Broadcasting Limited to acquire and operate the licence. After a hearing at which four applicants for the licence each put their case, the ABT granted the licence to New Broadcasting Limited in December 1979. Station 96FM commenced transmission in August 1980.

9. At the renewal hearing in February 1987, evidence was given to the ABT by Mr Bendat that:

"8) Brian Treasure has acted as Chairman of 96FM

since day one. He conducted our licence

application and has taken a very active role in

guiding the affairs of the station. 96FM is his

life and its success is due to him as Chairman.

.....

10. In the years I have been associated with

Brian, to the best of my knowledge, he has always

satisfactorily fulfilled his obligations as

director and chairman of 96FM under the

Broadcasting Act. I maintain my confidence in him

as a fit and proper person to manage the affairs

of 96FM and to remain as Chairman of Directors of

the company."

"... We had then and still have the greatest

confidence in Brian's abilities as a broadcaster

and his capacity to manage the affairs of 6NOW.

.....

... I have every confidence that he is a fit and

proper person to be associated with the Licencee."

"3.3 Mr Treasure has played a prominent and

distinguished role in Perth television, radio and

entertainment over about 30 years. He is also the

chairman of directors of the licensee, and the

holder of 12 per cent of its shares. From the

foundation of the licensee, he has contributed to

its success. It is not disputed that Mr Treasure

is one of the main personalities who direct the

affairs of 96FM, ...".

In their reasons for decision, the majority of the ABT, Mr M. Armstrong and Mr R. Watterson, said:

"3.16 It is true that 96FM under Mr Treasure as

chairman has a good record of filing the routine

returns required under the Act, and that in his

career Mr Treasure has not been associated with

any known lack of honesty or proper disclosure by

other licensees. Apart from the circumstances

outlined above, Mr Treasure has a good record in

broadcasting, ...".

"3.26 ... The evidence shows that he has performed

his role as Chairman to the satisfaction of fellow

board members, shareholders, the Tribunal and

indeed the public. Under his stewardship 96FM has

performed outstandingly with respect to both

audience figures and financial returns. ...".

11. It can be seen from the above that Mr Treasure has been the chairman of the applicant company and the person who has principally directed the affairs of 96FM. Under his control, the station has performed exceedingly well.

12. The other directors of the applicant company have an even more impressive record in the radio and television industry. Mr Stokes is chairman of and one of the promoters of West Coast Telecasters Pty Limited, the company that was recently successful in obtaining the third commercial television licence in Perth. He has, since 1980, through Australian Capital Television Pty Limited, controlled CTC7 Canberra. Mr Bendat and his son Mr P.N. Bendat have been the principal directors and promoters of Golden West Network Limited, a company which holds television licences in south west Western Australia. Mr Stokes, Mr J.M. Bendat and Mr P.N. Bendat are all well-known and successful businessmen.

13. I turn now to Mr Treasure's peccadilloes. Mr Treasure did not lodge personal taxation returns for the 1979, 1980, 1982, 1983, 1984 and 1985 years of income. In respect of the 1979 and 1980 years of income, default assessments were issued on 21 January 1982. With respect to all these years, Mr Treasure was prosecuted by informations laid on 17 October 1985 with respect to failure to lodge his taxation returns. On 28 November 1985, in the Court of Petty Sessions, Perth, he was convicted and fined a total of $11,000 for these offences. Information which has been given to this Tribunal, but was not given to the ABT, shows that the income which was not returned for those years and the tax ultimately assessed thereon was relatively small. Such information also discloses, however, that a taxation return lodged for the 1981 year failed to disclose income of that year, income which in comparison with other years was very substantial indeed.

"8. In the period after I left the employ of TVW7,

Perth, I had a number of personal problems which

impinged on my reputation, my lifestyle and

financial affairs. I did my best to shield my

family from these problems. However, they were

still in existence in 1979 when the first of the

returns under consideration fell due.

9. As I have said, I was under both personal and

financial pressure and the lodgement of the 1979

return was overlooked. In the years that

followed, I received payments from a variety of

sources, some of which were of a capital nature,

and others of an income nature, and the proper

treatment, both in terms of categorisation and

timing, was uncertain.

10. I did not have any professional assistance in

relation to my taxation or general financial

affairs. This is something I now regret. As it

happened the problem simply 'snowballed' and I

found it difficult to extricate myself from the

position I was in.

11. With the assistance of professional advice my

position has now been clarified and all returns

are up to date. I have also arranged for payments

from regular sources to be treated such that

income tax instalments are deducted at source.

12. I very much regret the situation which has

arisen. I and my family have suffered a great

deal through the publicity which followed the

convictions. Friends and associates who have

stood by me have also been affected and that I

also regret."

"In one instance, I was associated with a venture

which returned a dividend to me on 3 July. It was

incorporated in my estimation in the earnings for

the year that started on that 1 July. One of the

other participants in that venture had a loss in

that previous year and put the money in in that

year. As a consequence, we were all required to

do so and in that event I did not. I put it in

the following year and I suppose it could be said

that there was a delay, but in fact I did not get

the money until 3 July."

15. The majority of the ABT were kind enough to say of Mr Treasure's behaviour:

"3.13 It is true that failure by a prominent person

to lodge an income tax return is not likely to be

the behaviour of a person who has a conscious plan

to deceive the public authorities, because the

prospects of success are so manifestly small.

...".

However, I would not myself be prepared to draw any inference favourable to Mr Treasure on this aspect of the matter. He did not give evidence to this Tribunal, notwithstanding that its function is review on the merits, that is to say, to come to its own view of the facts and to apply the law to those facts. The explanation that he gave to the ABT may possibly explain the failure to lodge the 1979 and 1980 returns, though why Mr Treasure should have had any difficulty with his taxation returns in view of the small sums of taxable income in most years is not apparent. Even if his explanation is right for 1979 and 1980, Mr Treasure lodged a return for 1981 which failed to disclose a large amount of income. And even if Mr Treasure genuinely considered that the income should have been returned in the 1982 year and not the 1981 year, nevertheless he did not lodge any return for the 1982 year. It is inconceivable that, whatever personal problems Mr Treasure may have had after leaving the employ of TVW7 in 1975, those problems played any significant part on his failure to lodge returns for 1982, 1983, 1984 and 1985.

16. In the absence of evidence from Mr Treasure to this Tribunal, I am not prepared to look upon these events with any compassion or sympathy or to draw the conclusion that the failure to lodge the taxation returns was not intentional. Indeed, I draw the opposite conclusion.

17. The last of the facts that I should mention is that, for a year and a half, Mr Treasure was chairman of West Coast Telecasters Pty Limited, one of the applicants for the third television licence in Perth, and ultimately the successful applicant therefor. The licence application was fiercely contested and the decision granting the licence to West Coast Telecasters Pty Limited was a majority decision. Accordingly, Mr Treasure's standing in the community and his suitability to be chairman of West Coast Telecasters Pty Limited was a matter of concern not only to West Coast Telecasters Pty Limited but also to the other applicants and to the ABT. On the weekend before his prosecution came on for hearing, Mr Treasure, who was about to travel interstate, left a note for Mr Stokes advising of his taxation problems. Early in the following week, Mr Treasure decided, without being requested by the other directors to do so, that he should resign as chairman of and as a director of West Coast Telecasters Pty Limited. Accordingly, he resigned and has since been engaged by West Coast Telecasters Pty Limited as a consultant. Understandably, Mr Treasure's failure to disclose his taxation position to his co-directors at an earlier stage prejudiced the application by West Coast Telecasters Pty Limited. Indeed, the ABT's approach to Mr Treasure's resignation subsequently became a ground of appeal from the ABT's decision granting the licence to West Coast Telecasters Pty Limited.

18. Before a decision may be taken that the licence should not be renewed, it is necessary that the ABT, and now this Tribunal, should be satisfied that the licensee "is no longer a fit and proper person to hold the licence" or "no longer has the financial, technical and management capabilities necessary effectively to operate the broadcasting station ..." and that "it is advisable in the public interest to refuse to renew the licence". The reasons of the majority members do not in fact contain unequivocal findings on these matters. Indeed, the majority said at paragraph 3.19:

"3.19 The service provided by 96FM, and the

continuity of its management, should not be

disrupted lightly. The licence will therefore be

renewed for the full term, ...".

Likewise, paragraph (a) of the summary of reasons which accompanied the ABT's decision stated:

"(a) Given the overall performance of the station

the Tribunal does not consider that renewal of the

licence for less than the maximum period would be

justified."

These paragraphs suggest that the majority felt it would not be in the public interest not to renew the licence.

19. The approach of the majority of the ABT appears to be that stated in paragraph 3.17 that,

"... the Tribunal must make a decision which will

ensure that 96FM and other licensees observe the

standards of conduct required by the Act. ...".

And paragraph (b) of the summary of reasons stated:

"(b) Mr Treasure's judgements about the sequence of

tax circumstances over a number of years and his

subsequent conviction raise doubts about the

fitness and propriety and management capability of

the licensee."

I believe that this was not a correct approach to the matter. The ABT was considering whether or not to renew the licence. As the condition which is imposed went only to the fitness and propriety of the licensee to hold the licence, I believe that that was a matter to be considered solely within the confines prescribed by s.86(11B) of the Act. I am not here concerned and the ABT was not concerned with some aspect of the operation of the licence, with a condition relating to the manner in which the licence would be operated. The condition imposed related solely to the composition of the board of directors of the licensee company. Such a condition ought not to be imposed unless there is satisfaction as to the three tests I have mentioned above.

20. It follows that the condition imposed by the ABT may have been imposed under an error of law, namely, a view that such a condition could be imposed pursuant to the general power of the ABT to impose conditions and not as the means of giving effect to the provisions of s.86(11B) of the Act.

21. I turn now to examine for myself whether the tests prescribed by s.86(11B) are satisfied on the facts of this case.

22. The requirement that the licensee be "a fit and proper person to hold the licence" looks not to every aspect of fitness and propriety attaching to a licensee but only to such aspects thereof as relate to fitness and propriety to hold and operate the broadcasting licence. In R. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Limited [1953] HCA 22; (1953) 88 CLR 100 at 120, Dixon C.J., Williams, Webb and Fullagar JJ., considered the meaning of the expression "unfit to continue to be registered as an employer" in s.23(1)(a) of the Stevedoring Industry Act 1949 (Cth). Their Honours said,

"... 'Unfit' is no doubt a somewhat indefinite

expression but it is necessarily relative to the

purpose for which fitness or unfitness is

postulated. ... The prosecutor company falls

under the part quoted of the definition of the

word 'employer' and it is for that reason that the

company is on the register. Fitness connotes

suitability, appropriateness, qualification to

fill that character."

"... Clearly par.(a) of s.23(1) is not directed at

punishment for defaults or derelictions, however

seriously the board may regard them. ...".

23. Within this ambit, the test permits the exercise of a wide discretionary judgment. As Dixon, C.J., McTiernan and Webb JJ. said in Hughes and Vale Proprietary Limited v. The State of New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 at 156,

"... The expression 'fit and proper person' is of

course familiar enough as traditional words when

used with reference to offices and perhaps

vocations. But their very purpose is to give the

widest scope for judgment and indeed for

rejection. ...".

"... When the question was whether a man was a fit

and proper person to hold a licence for the sale

of liquor it was considered that it ought not to

be confined to an inquiry into his character and

that it would be unwise to attempt any definition

of the matters which may legitimately be inquired

into; each case must depend upon its own

circumstances : R. v. Hyde Justices (1912) 1 KB 645

at p 664. ...".

Nevertheless, at p.157, their Honours reiterated the point that,

"... What under par.(c) the commissioner is

required to have regard to is 'the character,

suitability and fitness of the applicant to hold

the licence applied for'."

24. It is to be kept in mind that a conviction for an offence not related to the broadcasting industry is not to be looked at in the same way as an offence related to the industry in which the licence is held. In Ziems v. The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279, the Court allowed an appeal against the disbarment from practice of a barrister who had been convicted of manslaughter and had been sentenced to two years' imprisonment. At p.290, Fullagar J. said,

"... Personal misconduct, as distinct from

professional misconduct, may no doubt be a ground

for disbarring, because it may show that the

person guilty of it is not a fit and proper person

to practise as a barrister : see, eg. In re Davis

[1947] HCA 53; (1947) 75 CLR 409. But the whole approach of a

court to a case of personal misconduct must surely

be very different from its approach to a case of

professional misconduct. Generally speaking, the

latter must have a much more direct bearing on the

question of a man's fitness to practise than the

former."

25. For my own part, I do not think it can be said that a conviction for failure to lodge income tax returns is a conviction of so heinous a character that any company who has, as its chairman of directors, a person so convicted is not a fit and proper company to hold a broadcasting licence. As Kitto J. said in the Ziems case, cited above, at p.298,

"... A conviction may of its own force carry such a

stigma that judges and members of the profession

may be expected to find it too much for their

self-respect to share with the person convicted

the kind and degree of association which

membership of the Bar entails. But it will be

generally agreed that there are many kinds of

conduct deserving of disapproval, and many kinds

of convictions of breaches of the law, which do

not spell unfitness for the Bar; and to draw the

dividing line is by no means always an easy task."

"... It is, of course, obvious that many offences

are of such a character that proof of the

commission of any one of them by a member of the

Bar could produce only one result. And, for the

simple reason that proof of such an offence would,

itself, establish conduct on the part of the

person concerned constituting a disqualification

for his profession, this would be so whether a

conviction resulted in imprisonment or not. But,

on the other hand, it cannot be suggested that a

barrister should be disbarred upon proof that he

has committed any offence whatever its nature or

consequences."

26. Just as in Ziem's case a conviction for manslaughter which carried with it imprisonment for two years was not so heinous a matter that the barrister should necessarily be disbarred from practice, so, in the present case, the convictions which were recorded at the one time and which are the only stains upon Mr Treasure's character seem to me to be not of such a nature or so serious as to lead to the conclusion that a company having had as its chairman Mr Treasure is not a fit and proper person to hold a broadcasting licence.

27. It must also be remembered that Mr Treasure has had a long and good record in the broadcasting and television industry, that he is only one of four directors, the other three directors being all persons of good reputation in the broadcasting and television industry and persons who play an active role in directing the affairs of New Broadcasting Limited. Moreover, New Broadcasting Limited has no conviction whatever for any offence and its record in performing its function since its licence was issued in 1980 has been good, indeed, during the last three years exemplary.

28. The majority of the ABT took the view that Mr Treasure's actions in relation to his taxation affairs and his failure to disclose the situation to his co-directors and to West Coast Telecasters Pty Limited were matters which raised a doubt as to whether any company of which he was a director could be relied upon to observe the standards of conduct required of a licensee. For my own part, I do not draw that conclusion. I think the conclusion ought not to be drawn that New Broadcasting Limited cannot be relied upon to comply with its obligations under the Act. In fact, it has complied with them and it has as directors four persons, all of whom are well aware of the importance of doing so.

29. Nor do I think it can be said that New Broadcasting Limited "no longer has the financial, technical and management capabilities necessary effectively to operate the broadcasting station". In fact, it has performed very well and Mr Treasure has been the driving force. To my mind, to remove Mr Treasure from the board of directors would be likely to reduce its management capabilities. There is no reason to doubt the effectiveness of the management of New Broadcasting Limited under Mr Treasure's chairmanship. It is financially successful and the top rating station in the market. As the reasons for the decision of the Tribunal show, 96FM is a very successful and popular station.

30. Finally, I should say that I see nothing in the facts before me which would justify the conclusion that it is advisable in the public interest to refuse to renew the licence of station 96FM. For my own part, I draw the conclusion that the station is providing a very useful public service, as its popularity and ratings amply demonstrate.

31. It follows that the provisions of s.86(11B) are not satisfied and the condition as to Mr Treasure's directorship should not be imposed.

32. For these reasons, I am of the opinion that the decision under review should be varied by deleting the condition that "Mr B S Treasure shall cease to be a member of the board of directors of the licensee company on or before 30 April 1987".

33. The last matter on which I need comment is the limited role performed by counsel for the ABT in the hearing of this review. The role performed was that encouraged by the remarks of Gibbs C.J., Stephen, Mason, Aickin and Wilson JJ. in R. v. Australian Broadcasting Tribunal & Others; Ex parte Hardiman & Others [1980] HCA 13; (1980) 29 ALR 289 at 306. Their Honours mentioned that in that case counsel for the ABT had taken the course of presenting a substantive argument and went on to say:

"... The course which was adopted by the Tribunal

in this court is not one which we would wish to

encourage. If a tribunal becomes a protagonist in

this court there is the risk that by so doing it

endangers the impartiality which it is expected to

maintain in subsequent proceedings which take

place if and when relief is granted. The

presentation of a case in this court by a tribunal

should be regarded as exceptional and, where it

occurs should, in general, be limited to

submissions going to the powers and procedures of

the Tribunal."

34. However, in a proceeding before the Administrative Appeals Tribunal ("the A.A.T."), it is not unusual for the representative of the decision-maker to play an active role in examining and cross-examining witnesses and to put substantive arguments. That is indeed the normal and desirable course. It is also the course which is intended by the provisions of the Administrative Appeals Tribunal Act 1975 (Cth). Section 30(1) of that Act provides that the person who made the decision will be a party to the proceedings before the A.A.T.. The A.A.T. proceeds by way of a hearing or re-hearing at which the parties attend. The function of the A.A.T. is review on the merits of a matter. It considers for itself both the facts and the law. Seldom does the A.A.T. refer a matter back to the decision-maker to be fully re-considered. In the overwhelming proportion of cases, the A.A.T. considers for itself what decision, in the exercise of the primary decision-making power, is the correct or preferable decision. That is the function which the A.A.T. exercised in Re Control Investment Pty Ltd & Ors and Australian Broadcasting Tribunal (No.2) (1981) 3 ALD 88 and in this present case.

35. In the exercise of this function, the A.A.T. is assisted if the representative for the decision-maker fulfils the role of adducing evidence, of questioning evidence and of presenting substantive submissions. If the representative for the decision-maker does not do this and there is no other party present to undertake that role, it could become necessary for the A.A.T. itself to take an active role in questioning witnesses and even in adducing evidence. Such a role does not stand well with the A.A.T.'s function of providing a hearing to parties, including the decision-maker, and of coming to an impartial and informed decision after hearing what the parties before it put forward at the hearing by way of evidence and submissions.

36. In the present hearing, I missed the assistance which I would have obtained had Mr A. Robertson, counsel for the ABT, taken a more active role, though that is not to say that I am not grateful to him for such assistance as he gave and, in particular, for his explanation of the reasons for decision of the ABT.

37. In some cases, it could well be appropriate for counsel for the ABT to exercise a limited role. Such a case probably was Re Control Investment, cited above, in which several parties were represented before the A.A.T. and all relevant points of view were put. In that case, the ABT limited its role to assisting clarification of the practices and policy of the ABT and to assisting the A.A.T. as requested. But that was a very different case from the present for all the evidence was properly tested.

38. I would therefore encourage representatives of the ABT in future cases to play a more active role than was played in the present case and I would emphasise that, in a review of a decision of the ABT, the A.A.T. is required to be constituted by a presidential member of the A.A.T. who is a Judge of the Federal Court of Australia. In a case in which the parties are only the applicant for review and the ABT, it is preferable that the ABT should undertake by its representative the task of testing evidence, than that the A.A.T. as so constituted should engage extensively in the examination and cross-examination of witnesses. And because the A.A.T. as so constituted does not have specialist knowledge of the broadcasting and television industry and of the persons involved in it, the A.A.T. would obviously be assisted with substantive submissions from the representative of the ABT, a body which does have that expertise.

39. However, these observations are limited to future cases.

40. For the reasons I have stated, the decision under review will be varied by deleting the condition attached thereto.