2. As the decision of the Tribunal was in writing and was issued together with the reasons for the decision, any application to the Court in respect thereof was required to be lodged with the Court within 28 days after the decision was furnished to Mr Mark, which was on 2 May 1991. See s.11(3) of the ADJR Act. The application was not filed until 26 June 1991. There is therefore a motion before the Court seeking an extension of time so as to validate the application.

3. On the hearing of this motion, Mr R. Phillips of counsel appeared for Mr Mark while Mr P. Roberts of counsel appeared for the Tribunal. Mr T. Unsworth, solicitor, appeared on behalf of 2KY Broadcasters Ltd.

4. This present proceeding concerns the issue whether time should be extended. I have not heard the parties on the substance of the application should an extension of time be granted. However, the issues raised by counsel for the Tribunal include the issue whether Mr Mark has standing to bring the application and the issue whether any of the grounds of review relied upon have arguable merit.

5. On the question of time, counsel for the Tribunal relied, not only on the lapse of time from the giving of the Tribunal's decision, but also on the fact that the broadcast complained of occurred in June 1990 and was no longer a matter of current interest. Counsel also relied upon the fact that this application was not supported by any ethnic association or person interested in pursuing a claim as to the broadcasts.

6. Section 5 of the ADJR Act empowers the making of an application to the Court in respect of a decision by "A person who is aggrieved" by the decision. Section 6 empowers an application to be made by "a person who is aggrieved by the conduct engaged in for the purpose of making a decision". I need not discuss the meaning of the word "aggrieved" or the general principles upon which a person has standing in legal proceedings. It is sufficient to refer to Tooheys Limited v Minister for Business and Consumer Affairs [1981] FCA 121; (1981) 36 ALR 64, Ricegrowers Co-operative Mills Ltd v Bannerman [1981] FCA 211; (1981) 38 ALR 535, Ogle v Strickland (1987) 13 FCR 306, Broadbridge v Stammers (1987) 16 FCR 296, United States Tobacco Co. v Minister for Consumer Affairs [1988] FCA 213; (1988) 20 FCR 520, Sinclair v Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473, Australian Conservation Foundation Incorporated v The Commonwealth (1978-1980) 146 CLR 493 and Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27. To bring an application under the ADJR Act, a person must have an interest in the subject matter of the proceedings extending beyond that of a member of the general public and other than that of a person merely holding a belief that a particular type of conduct should be prevented or a particular law observed. A person bringing proceedings under the ADJR Act must identify a relevant interest and establish a sufficient relationship between that interest and the decision sought to be reviewed.

7. As a general member of the public, Mr Mark did not have any such interest to bring the present proceedings, notwithstanding that he had an intellectual interest and expertise with respect to matters of discrimination, including racial discrimination. Mr Mark was not personally affected by the broadcasts nor was he a member of any ethnic group the subject of discussion in the broadcasts.

8. To establish an interest, Mr Mark therefore relies upon his position and function as President of the Anti-Discrimination Board of New South Wales, established under the Anti-Discrimination Act 1977 (NSW).

9. However, the Anti-Discrimination Act confers no power upon the President of the Anti-Discrimination Board to involve himself in proceedings before the Australian Broadcasting Tribunal or to bring proceedings in a court seeking to ensure that the Australian Broadcasting Tribunal properly performs its functions.

10. Section 88 of the Anti-Discrimination Act provides for the lodgment of complaints in respect of any contravention of that Act. The complaint is to be lodged with the President. In respect of conduct constituting racial vilification, which is said by Mr Mark to be the conduct constituted by the broadcast, s.88(1A) provides:-

"88.(1A) A racial vilification complaint in

writing may be lodged with the President -

(a) in accordance with subsection (1), but only if the

person or persons on whose behalf the complaint is

lodged is a member, or are members, of the racial

group concerned; or

(b) by a representative body on behalf of a named person

who is a member, or named persons who are members, of

the racial group concerned."

As President of the Anti-Discrimination Board, Mr Mark received two written complaints in respect of the broadcasts. One was a complaint from the Indo-China Chinese Association, the other from Ms Shakuntala Singh. It did not appear that Ms Singh was a member of any of the racial groups mentioned in the broadcasts, as s.88(1A) required; however, Mr Mark appears to have accepted that the NSW Indo-Chinese Association made its complaint on behalf of a person or persons who was a member or were members of the racial groups discussed in the broadcast.

11. The task of the President under s.89 of the Anti-Discrimination Act is to investigate each complaint lodged under s.88. Section 90 empowers him in certain circumstances to decline to entertain a complaint but Mr Mark did not do so. Section 92 provides for resolution of a complaint by conciliation. This matter was not so resolved. Section 94 provides inter alia:-

"94. (1) Where the President -

(a) is of the opinion that a complaint

cannot be resolved by conciliation;

(b) has endeavoured to resolve a

complaint by conciliation but has

not been successful in his

endeavours; or

(c) is of the opinion that the nature of

a complaint is such that it should

be referred to the Tribunal,

he shall refer the complaint to the Tribunal

together with a report relating to any inquiries

made by him into the complaint."

The Tribunal there referred to is the Equal Opportunity Tribunal established under Part 7A of the Anti-Discrimination Act.

12. The history of his dealing with the two complaints and of how the Australian Broadcasting Tribunal came to be involved is set out in the following paragraphs of Mr Mark's affidavit of 9 August 1991:-

"16. First, the broadcasts and the fact that the Australian

Broadcasting Tribunal has not found that they breached the

Standard, increase my workload and that of the Board in that

they increase the amount of educational work necessary to

counter the effects of the broadcasts.

...

19. Fourth, as a result of the decision

(the decision under review), the complainants whose

complaints I had attempted to resolve by referring the

matter to the Australian Broadcasting Tribunal are

distressed and aggrieved. Their complaints have not been

resolved. The complaints cannot be resolved by reference to

the Equal Opportunity Tribunal because of the operation of

s.88(1A)(a) in relation to one complainant, and because of

lack of resources in relation to the other.

20. Fifth, up until this decision, I had taken the view that it

was appropriate to deal with complaints of racial

vilification on radio and television which I could not

satisfactorily conciliate by referring the complainant to

the Australian Broadcasting Tribunal. I took this view

because the Australian Broadcasting Tribunal provides a

simple, low-cost means of dealing with such matters.

Further, the Australian Broadcasting Tribunal as a

specialist media regulator was apparently appropriately

placed to deal with such complaints pursuant to RPS3.

However, given this decision, I will now have to consider

referring such complaints to the Equal Opportunity Tribunal.

Such a reference may also involve the appointing of one of

my staff to act as an officer assisting the Tribunal.

21. Referral of such complaints to the Equal Opportunity

Tribunal may thus increase the workload of the Board. The

complainants would suffer the further disadvantage of having

the matter dealt with by a tribunal whose procedures are

more expensive and more difficult than those of the

Australian Broadcasting Tribunal."

13. As can be seen, Mr Mark adopted a practice of referring complaints in respect of broadcasts, not to the Equal Opportunity Tribunal, as he was required to do by s.94(1) of the Anti-Discrimination Act, but to the Australian Broadcasting Tribunal. He did so because he considered that the Australian Broadcasting Tribunal provided "a simple, low-cost means of dealing with such matters" and that, if he referred such complaints to the Equal Opportunity Tribunal, the reference would increase the work of the Anti-Discrimination Board and additional staff would have to be appointed. For these reasons, Mr Mark did not refer the complaints to the Equal Opportunity Tribunal but, in the name of the Anti-Discrimination Board, lodged a complaint with the Australian Broadcasting Tribunal.

14. It is not contended that, in so acting, Mr Mark did not act with a view to promoting the general objects sought to be achieved by the Anti-Discrimination Act, or that he did not act in the interests of the complainants who had lodged complaints with him. However, by lodging a submission with the Australian Broadcasting Tribunal, Mr Mark not only did not perform any function conferred upon him or the Anti-Discrimination Board by the Anti-Discrimination Act, but acted in breach of the statutory duty imposed upon him by s.94 of the Anti-Discrimination Act.

15. In the circumstances, it seems to me that Mr Mark's office as President of the Anti-Discrimination Board conferred upon him no relevant interest entitling him to challenge in this Court the subsequent decision of the Australian Broadcasting Tribunal.

16. Mr Mark, as President of the Anti-Discrimination Board, has no function in relation to the way in which the Australian Broadcasting Tribunal interprets and enforces its own standards. Section 119 of the Anti-Discrimination Act, which sets out the general functions of the Anti-Discrimination Board, empowers the Board to carry out investigations, to acquire and disseminate knowledge, to arrange and co-ordinate consultations and discussions, to review the laws of the State of New South Wales, to consult with governmental, business and other groups, to hold public inquiries and to develop human rights programs and policies. None of these functions comprehends the action of taking proceedings seeking judicial review of decisions of the Australian Broadcasting Tribunal on the ground that the Australian Broadcasting Tribunal has misinterpreted the standards which it has established.

17. Mr Mark and through him the Anti-Discrimination Board sought to achieve inter alia a direction under s.99(2) of the Broadcasting Act that Mr Casey no longer should participate in broadcasts of Station 2KY. The Anti-Discrimination Act did not authorise the making of such a direction. This emphasises the point that Mr Mark's official position gave him no interest in the proceedings of the Australian Broadcasting Tribunal. Insofar as Mr Mark caused the Anti-Discrimination Board to be a party to an inquiry held by the Australian Broadcasting Tribunal, a step which in accordance with United States Tobacco Co. v Minister for Consumer Affairs, cited above, might be thought to confer standing on the Anti-Discrimination Board, Mr Mark's actions taken as President of the Anti-Discrimination Board were not empowered by, indeed were inconsistent with, the Anti-Discrimination Act.

18. Moreover, although I have not attempted to consider in depth any of the grounds of review upon which Mr Mark proposes to rely should the matter proceed, I think it proper to take into account the fact that no matter pointed to in the course of argument appears to raise a clear point of law upon which the Court could rule. The Australian Broadcasting Tribunal gave reasons for its decision which examined with care the nature of the broadcasts. Mr Mark is merely concerned as to the effect which the Australian Broadcasting Tribunal gave to standard RPS 3, a standard which reflects concepts also appearing in the Anti- Discrimination Act.

19. The present application fails to perceive the distinction in nature between a standard such as RPS 3 and provisions such as ss.20C and 20D of the Anti-Discrimination Act. Mr Mark is seeking a judicial interpretation of standard RPS 3 which includes expressions such as "likely to incite or perpetuate hatred against" and "gratuitously vilifies", expressions which are common to RPS 3 and the Anti- Discrimination Act. But whereas the Anti-Discrimination Act clearly raises points of law, as for example it does in ss.20C and 20D by making certain conduct unlawful, the standards of the Australian Broadcasting Tribunal do not have that effect.

20. The breach of a standard is not an offence but is a matter which may be taken into account by the Australian Broadcasting Tribunal at a relevant time, eg, when an application is made for the renewal of a licence. A breach of a standard can also give rise to the imposition by the Australian Broadcasting Tribunal of a condition upon the licence. Any decision taken by the Australian Broadcasting Tribunal in relation to an alleged breach of a standard is thus not of itself a decision as to a matter of strict right or obligation but is provisional in nature and subject to the exercise of a discretion.

21. In the examination of decisions by the Australian Broadcasting Tribunal as to such a breach, it will often not be possible to isolate errors of law with respect to which a court may make an order in the nature of judicial review. See Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. Particularly is this so in the present case when there could be differing views as to the meaning and effects of the remarks of the broadcaster.

22. Moreover, the criteria prescribed by s.20C of the Anti- Discrimination Act not only set down tests for racial vilification but prescribes its own exclusions such as, per s.20C(2)(c), "a public act, done reasonably and in good faith ... for ... purposes in the public interest, including discussion or debate about and expositions of any act or matter." No doubt the broadcaster, Mr R. Casey, took the view when, on talk-back radio, he discussed the Government's response to the boat people who had arrived illegally in Australia, that he was serving the public interest by promoting public discussion of the issue.

23. The point I therefore emphasise is that, as the broadcasts were made in New South Wales and were subject to the provisions of the Anti-Discrimination Act, Mr Mark's concern should have been to consider whether those broadcasts offended the Anti-Discrimination Act, not whether the Australian Broadcasting Tribunal's interpretation of its standard RPS 3 was correct.

24. In all these circumstances, it seems to me that the application for an extension of time should be refused. It follows that the application itself must be dismissed as being lodged out of time. The applicant should pay the respondent's costs of the application, including the costs of the motion for an extension of time.