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Published online by Cambridge University Press: 24 January 2025
I was asked to address the impact of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) in the field of broadcasting. That is not the title of this paper, as I frankly doubt that the availability of review under the ADJR Act has made that much difference in this area.
This is not to say, of course, that there have not been important challenges to administrative decisions in this field, with significant consequences, both for those of us working in the area and for administrative law in general. I remain to be convinced, however, that similar challenges would not have occurred, or that there would have been that many less applications for review, if parties to proceedings before the Australian Broadcasting Tribunal (“ABT”) had been left to their remedies under the general law.
Revised version of a paper presented at the Conference: “Ten Years of the Federal Administrative Decisions (Judicial Review) Act” in September 1990.
1 Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act 1977 - Stage One, Report No 26, para 14 (1986).
2 Id.
3 Supra n 1, para 7.
4 Penh Licence Grant Inquiry (No 310/84) G(f), 1986 I BR 403.
5 The Tribunal itself cited use of ADJR Act review as a “significant cause of delay and expense” in its inquiry into the grant of a third commercial television licence for Penh (ABT, Annual Reporz 1986-87, x-xi). See also comments by Mr Macphee, MP, “...the two existing licence holders are setting out to take every point of objection they can, to go on every appeal that they possibly can go on and deliberately to delay the granting of a licence by the Broadcasting Tribunal until at least after the America's Cup has been telecast...”: H Reps Deb 198S, Vol Hl4S, 311S (19 Nov 198S), quoted in ARC Discussion Paper, Some Aspects of the Operation of the Administrative Decisions (Judicial Review) Act 1977, (1986) 5-6.
6 ABT,Annual Report 1986-87, x-xi.
7 Staff Addendum (5 September 85) to ABT Submission to ARC, Attachment B to ARC Discussion Paper, Some Aspects of the Operation of the Administrative Decisions (Judicial Review) Act 1977 (1986) para 2.2.
8 ABT,Annual Report 1985-86, paras 109-111.
9 Supra n 7, para 2-3.
10 A list of the matters, detailing the grounds of challenge, the decision and a summary of the reasons for the decision in each application, is given as Appendix H to the ABT's decision in the Perth Licence Grant Inquiry (No 310/84) G(T), (1986) l BR 403, 451 ff.
11 J Griffiths, “The Price of Administrative Justice” (1989) 58 Canberra Bulletin of Public Administration 34, 35.
12 ABT, Annual Report 1984-85, para 103.
13 Eg the Attorney-General's Second Reading Speech of the Administrative Decisions (Judicial Review) Amendment Bill 1986, H Reps Deb 1986, Vol Hl51, 2560-2561 (22 October 1986). See also J Griffiths, supra n 11, 35 .
14 Griffiths,id.
15 Australian Broadcasting TribunalvBond (1990) 170 CLR 321.
16 (1989) 3 BR 351.
17 M Taggan, “Osmond in the High Coun” in M Taggan (ed), Judicial Review of Administrative Action in tlu 1980s: Problems and Prospects (1986) 68, quoting from S Tiu Works of Jeremy Bentham (1923 reprint) 235.
18 Second Reading Speech on the Administrative Decisions (Judicial Review) Bill 1977 by the Hon R J Ellicott QC, Attorney-General, H Reps Deb 1977, Vol H!OS, 1394- 1396 (28 April 1977).
19 Broadcasting Act 1942 (Cth), s 25B.
20 ARC AMual Repons for the relevant years.
21 ARC,supra n 1, para 7.
22 Report of the Commonwealth Administrative Review Commillee PP No 144 of 1971, para 363.
23 Administrative Appeals Tribunal Act 1975 (Cth), s 27(1).
24 Applications for review have been rejected by the AAT on the basis of this provision, eg in Re P G Laird and Australian Broadcasting Tribunal (AAT, 10 May 1979, unreported decision of Davies J), the AAT refused to hear an application for review of a decision of the ABT which approved the transfer of shares in a company holding a television licence granted under the Broadcasting and Television Act as it was then called, because the appellant was not the person seeking control, as required under s 119A(2) of that Act. While the Broadcasting Act narrowly limits the right of appeal, it does not so limit the right to contest the appeal once it is on foot, for there is no exclusion of s 30(1A) of the AAT Act which provides that once one of those persons entitled to has appealed, “any other person... whose interests are affected” may become a party to the appeal. This occurred in Re Control Investments (No 1) (1981) 3 ALD 74.
25 Administrative Review Council, Review of Decisions under the Broadcasting and Television Act 1942 Report No 16, (1982).
26 Western Television Ltd v Australian Broadcasting Tribunal (1987) 69 ALR 465.
27 Ibid 480.
28 The case, Independent FM Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 17 ALD 529, concerned the ABT's decision in June 1988 to grant to Goulbum Valley Broadcasters Pty Limited (“GVB”) the new commercial radio licence serving the Sheppanon area of Victoria. IFM was one of the unsuccessful applicants for the grant. The ABT had found that both IFM and GVB were suitable, the question was which was the “"most suitable applicant'” (Broadcasting Act 1942 (Cth), s 83(9)). The ABT found that this assessment in this instance turned on financial considerations, panicularly revenue projections.
29 Ibid 533-534.
30 Ibid 530.
31 Singh vMinisler for Immigration and Ethnic Affairs (1987) 15 FCR 4, 13 per Forster J, as quoted in lndependenl FM Radio supra n 28, 531.
32 p Marx, “Judicial Review of licence grant decisions by the Australian Broadcasting Tribunal” (1989) Vol 9 No 2 Communicazions law Bulletin 12, 13. As Marx goes on lo note, the plighl of lhese aggrieved persons is exacerbated by lhe facl lhal lhey do nol have a right lo apply lo the AAT for review.
33 (1987) 69 ALR 465, 475.
34 Ibid 474. Refusal of relief by the Court on such grounds is not, of course, as Pincus J noled in this case (at ALR 474-475), confined to the exercise of its discretion under the ADJR Act; and has been exercised on similar grounds, eg, in cases of refusal of certiorari.