R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 (15 May 1980)

HIGH COURT OF AUSTRALIA

THE QUEEN v. AUSTRALIAN BROADCASTING TRIBUNAL; Ex parte HARDIMAN [1980] HCA 13; (1980) 144 CLR 13

Broadcasting and Television - Administrative Bodies

High Court of Australia
Gibbs(1), Stephen(1), Mason(1), Aickin(1) and Wilson(1) JJ.

CATCHWORDS

Broadcasting and Television - Licence for commercial television - Prescribed interest held by company - Acquisition of shares by another company - Inquiry by Australian Broadcasting Tribunal - Duty to investigate matters relevant to inquiry - Contraventions of Act - Acquisition of beneficial entitlement to prescribed interest - Broadcasting and Television Act 1942 (Cth), ss. 25, 91, 91A, 92 (1) (a), (2), (3) (a), 92F.

Administrative Bodies - Broadcasting - Supervisory authority - Inquiry - Procedure - Duty to investigate matters relevant to inquiry - Duty to summon evidence - Cross-examination of witnesses - Broadcasting and Television Act 1942 (Cth), ss. 16 (1) (c), 25, 92F (4), (4A), 106A.

HEARING

Brisbane, 1980, April 22, 23;
Sydney, 1980, May 15. 15:5:1980
MANDAMUS AND PROHIBITION.

DECISION

May 15.
THE COURT delivered the following written judgment: -
This is an application to make absolute an order nisi for mandamus and members, Control Investments Pty. Ltd. ("Control"), certain companies associated with Control, Mr. K. R. Murdoch and the Producers & Directors Guild of Australia, being parties to an inquiry before the Tribunal into an application by Control under s. 92F (2) of the Broadcasting and Television Act 1942, as amended ("the Act"). Control is and was at all material times a wholly-owned subsidiary of The News Corporation Ltd. ("News"). By letter dated 10th March 1980 addressed to the Tribunal, Control made application for approval pursuant to s. 92F (2) of the Act, of its acquisition of an interest of up to 38,560,981 ordinary shares in Ansett Transport Industries Ltd. ("A.T.I."), being one-half of the issued capital of that company. (at p19)

2. The prosecutors represent the Australian Labor Party and comprise the members of the Administrative Committee of the Victorian Branch of the Party and the members of the National Executive of the Party. The prosecutors were considered by the Tribunal to be persons having an interest in the inquiry and were, with the approval of the Tribunal, represented at the inquiry by counsel pursuant to s. 22 of the Act. (at p19)

3. For present purposes the importance of the acquisition of A.T.I. shares by Control is that it gives, or will give, that company "shareholding interests" within the meaning of s. 92F (1) in Austarama Television Pty. Ltd. ("Austarama"), the holder of the commercial television licence for Channel 10 (ATV) Melbourne, amounting to a "prescribed interest" in the licence within the meaning of s. 91 (2). This result comes about because Austarama is a wholly-owned subsidiary of A.T.I. It was and is common ground that the acquisition is a transaction within s. 92F (1) and that it was appropriate for Control to seek the Tribunal's approval of the transaction under s. 92F (2). (at p19)

4. The prosecutors claim mandamus because the Tribunal failed to investigate the matters which it is required to investigate by ss. 25 (1) and 92F (4A) of the Act. They seek prohibition because, amongst other things, the Tribunal failed to allow the prosecutors a reasonable opportunity to present their case and to cross-examine witnesses called by Control, by placing a time limit on cross-examination, and by requiring the prosecutors' counsel to conform to what has been styled the "panel system of cross-examination". (at p19)

5. Some reference to the provisions of the Act is necessary. It is convenient to begin with the statutory provisions relating to "prescribed interests" and "shareholding interests". A person contravenes s. 92 (1) (a) if, and so long as, he has a prescribed interest in each of three or more licences. "Licence" means a licence for a commercial television station (s. 91 (1)). (at p20)

6. A person has a prescribed interest in a licence if (inter alia) he is
"(b) in a position to exercise control, either directly or indirectly, of the licence;
(c) in a position to exercise control of more than five per centum of the maximum number of votes that could be cast on a poll at, or arising out of, a general meeting of the company holding the licence, whether he is in such a position as regards all questions that could be submitted to such a poll or as regards one or more only of such questions;

. . . or
(e) the holder of shareholding interests in the company holding the

licence exceeding in amount five per centum of the total of the amounts paid on all shares in that company."
(s. 91 (2)). (at p20)

7. Section 91 (3) (a) provides that for the purposes of Div. 3 of Pt IV (in which ss. 91, 92 and 92F appear), "a person has a shareholding interest in a company if he is beneficially entitled to, or is beneficially entitled to an interest in, any shares in the company (whether or not the whole or any part of the legal ownership of the shares is vested in the person)". The amount of the shareholding interest is an amount equal to the value of the shares, or of the interest in the shares, on the basis that the value of the shares is equal to the amount paid on the shares (s. 91 (3) (b)). (at p20)

8. At the centre of the statutory concept of shareholding interests are the provisions of s. 91A. They enable shareholding interests to be traced down the line through a series of companies to a company which is the licensee. It is by means of this tracing provision that a company which does not hold shares in a company holding a licence may nevertheless be deemed to have a shareholding interest in such a company. (at p20)

9. By virtue of the application of ss. 91 (3), 91A and 92F (1) the proposed acquisition by Control of up to 50 per cent of the share capital of A.T.I. would, if implemented, give it a like shareholding interest in the wholly-owned subsidiary Austarama, the holder of the Channel 10 licence in Melbourne. This shareholding interest would constitute a prescribed interest in the licence by virtue of s. 91 (2) (e). (at p20)

10. It is necessary now to turn to s. 92F. It "applies to a person in relation to a transaction (whether or not the person is a party to the transaction) where - (a) the transaction is in respect of . . . shares in a company having a shareholding interest" in a company holding a licence for a commercial television station and, "as a result of the transaction - (i) that person becomes the holder of shareholding interests in the company holding a licence . . . amounting to a prescribed interest in the licence . . ." (s. 92F (1)). (at p21)

11. Section 92F (2) then provides:
"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." (at p21)

12. By s. 92F (3) the Tribunal is empowered to direct a person by notice in writing to divest himself of shareholding interests in the company holding the licence where a transaction within s. 92F (1) has taken place and the approval of the Tribunal to the transaction "in so far as it affects that person" has not been given either before or after the transaction. But if the Tribunal is to exercise this power it must do so within three months after the date of the transaction or after the date on which the Tribunal becomes aware of the facts by reason of which s. 92F (3) is applicable. (at p21)

13. Section 92F (4), (4A) and (5) provide:
"(4) The Tribunal shall not refuse to grant approval under this section unless it has held an inquiry into such matters as are determined by the Tribunal to be relevant to the application of this sub-section and sub-section (4A) in relation to the transaction.
(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." (at p21)

14. The Tribunal published an announcement of its inquiry on 24th March 1980. The announcement stated that the Tribunal would hold a public inquiry pursuant to s. 92F into the following matters (inter alia) relating to the transaction:
"1. Whether as a result of the transaction the applicant or any other person has or will have a prescribed interest in:

(a) Each of three or more commercial television station licences, or
(b) Each of two or more licences for commercial television stations

within a radius of 50 kilometres of the General Post Office, Melbourne.
2. The extent, if any, to which the changes in the ownership and control of the licensee, whether direct or indirect, that have occurred or will occur as a result of the transaction accord or will accord with the public interest." (at p22)

15. The terms of reference of the inquiry became an issue for debate in this Court. Control urged that the Tribunal's authority was limited by s. 92F (4A) (a) to an inquiry into the contravention by Control of the statutory provisions and that it did not extend to an inquiry into the possibility of persons other than Control having a prescribed interest in three or more commercial television station licences. At the inquiry applications for approval under s. 92F (2) were made by respondent companies associated with Control, namely, Cruden Investments Pty. Ltd. ("Cruden") which owns 43.4 per cent of the capital of News, and Kayarem Pty. Ltd. ("Kayarem") which is a family company of Mr. K. R. Murdoch and owns approximately 28 per cent of the capital of Cruden. Counsel for Control and its associated companies specifically requested the Tribunal to take these applications into account in connexion with the application by Control. It was obvious that by reason of the chain of shareholding interests each of the respondents referred to would acquire a prescribed interest in the Channel 10 Melbourne licence in consequence of the proposed acquisition by Control. The additional applications were presented to the Tribunal after the prosecutors' counsel had departed from the inquiry in circumstances shortly to be outlined. (at p22)

16. The Tribunal made available to the parties an information paper dated 31st March 1980 which set out the effect of the proposed acquisition on the shareholding interests of Control and of its associated companies in companies holding commercial television licences. The paper set out the shareholding interests of A.T.I. in licences apart from Channel 10 (ATV) Melbourne. These shareholding interests consisted of - (a) 4.98 per cent of the shares in United Telecasters Sydney Ltd., the holder of the commercial television licence for Channel 10 Sydney; (b) 100 per cent of the shares in Universal Telecasters Qld. Ltd., the holder of the licence for Channel 0 (TVQ) Brisbane. The paper stated that Ampol Petroleum Ltd. ("Ampol") had advised that it had bought 66.5 per cent of TVQ and that the remainder of the share capital in TVQ had been purchased by broadcasting station 2SM Pty. Ltd. A.T.I. had a shareholding interest in Ampol amounting to 16.05 per cent of capital and votes. It was stated that, in order to ensure that News did not acquire a prescribed interest in TVQ, A.T.I. would reduce its interest in Ampol to 14.99 per cent. The effect of this reduction would be that A.T.I. would retain a prescribed interest in TVQ (i.e. 14.99 per cent of 66.5 per cent = 9.97 per cent) and the News interest would be 4.85 per cent. (at p23)

17. According to the paper the Tribunal had given approval for the News Group (comprising News, its subsidiary News Ltd., and Kayarem) to acquire 74.6 per cent of Channel 10 Sydney, thereby meaning the licensee of that Channel. However, on 28th December 1979, News sought approval for its subsidiary News Investments Pty. Ltd. to acquire 3,491,729 shares in the licensee of Channel 10 Sydney. The result of this acquisition would be that News through its subsidiaries would hold 77.7 per cent of the share capital of the licensee. The Tribunal advised News on 15th February 1980 that approval to the transaction could not be given at that time because the transactions entered into by News in relation to A.T.I. had resulted in a contravention of the Act in that it had prescribed interests in Channel 10 (ATV) Melbourne, Channel 10 Sydney and Channel O (TVQ) Brisbane. (at p23)

18. The information paper went on to state:
"As mentioned above, the sale of interests in TVQ is proceeding and should correct the contravention; full details of the sale of TVQ are yet to be supplied to Tribunal. The matter will be further considered by the Tribunal when sale of TVQ is completed.
On 19 March 1980, Mr K. S. May, a director of News Investments Pty Ltd sought Tribunal approval for the acquisition of the remaining 2,675,638 shares out of a total of 12,000,000 issued shares it does not already own in TEN.
The matter will be the subject of a separate submission to the Tribunal." (at p23)

19. By way of conclusion it stated:
"Subject to the necessary sale of shares in TVQ by Ansett Transport Industries Ltd., and reduction to less than control by Ansett Transport Industries Ltd. in Ampol Petroleum Ltd., there would not appear to be any contravention of the ownership or control provisions of the Act involved, following the acquisition of 38,560,981 ordinary shares by Control Investments Pty. Ltd. in the capital of Ansett Transport Industries Ltd." (at p24)

20. In its written submission to the Tribunal the Australian Labor Party argued that the Tribunal in the past had misconceived its function in relation to inquiries held under s. 92F (4) by placing the onus of proof on parties who allege that a transaction should not be approved because it results, or might result, in a contravention of s. 92 or because it is against the public interest. The submission went on to say, ". . . the Australian Labor Party would argue that breaches of the Act and the criminal law had occurred in this transaction. Evidence in support of this would be adduced." (at p24)

21. At the inquiry the prosecutors adopted a rather different approach. They disclaimed any intention to call primary evidence and asserted that they had a right to explore by means of cross-examination of Control's witnesses whether the acquisition resulted, or would result, in any contravention of the Act and matters relating to the public interest. They claimed, as they had done in the written submission, that it was the Tribunal's statutory responsibility to investigate these questions. The chairman of the Tribunal had announced before Control led any evidence in support of its application that, in accordance with past practice, the Tribunal proposed to limit cross-examination by parties or their representatives to a total of thirty minutes. In response to an objection by counsel for the prosecutors, the chairman indicated that the Tribunal would consider in appropriate circumstances an application for an extension of time for cross-examination. (at p24)

22. Difficulty first arose during the cross-examination of Mr. Miller, a director of A.T.I., the first witness called by Control who was cross-examined. Mr. Miller indicated that he had become aware that News interests had acquired more than 5 per cent of A.T.I.'s capital and he "guessed" that he had become aware of this development in October 1979. When questioned as to the relevance of this material, counsel said that it was the prosecutors' case (a) that before the making of the application for approval by Control, News, by obtaining a shareholding interest of more than 5 per cent in A.T.I., obtained a prescribed interest in the Channel 10 Melbourne licence and in the Channel O (TVQ) Brisbane licence in addition to the prescribed interest which it held in the Sydney licence and that it thereby contravened s. 92 (1) (a); (b) that an offence was or may have been committed by News and others against s. 92F (5) by reason of the acceptance of benefits under a s. 92F (1) transaction without the approval of the Tribunal having been given to the transaction; (c) that A.T.I. may have committed a breach of s. 89A by permitting another person to participate in the benefits of the licence (Channel 10 Melbourne) without the consent of the Tribunal; and (d) that there may have been a conspiracy in relation to "an enterprise which involves of necessity breaches" of the Act. (at p25)

23. The Tribunal's information paper had suggested that the transaction would result in the acquisition by News of prescribed interests in three licences but it went on to indicate that this would be overcome by the disposition of interests mentioned in the paper. The Tribunal does not seem to have appreciated that a contravention might have already taken place. This may be explained by the chairman's announcement that the Tribunal had been advised by the Attorney-General's Department that there could be no breach of the Act "unless the shares are registered". (at p25)

24. However, cross-examination of Mr. Miller was permitted to proceed. In the course of this cross-examination and in the evidence given by Mr. Cooper, a solicitor employed by News, it emerged that Control's acquisition of shares in A.T.I. involved transfers from thousands of transferors. Of these transferors the Bell Group held about 11 per cent of the capital of A.T.I. and Ampol held about 20 percent. The balance of the shares to be acquired was held by a large number of shareholders in A.T.I. With the exception of the shares acquired from the Bell Group, the purchase price of all the shares was paid in full. The shares acquired from the Bell Group were the subject of a written agreement which was neither identified nor produced. Fifty per cent of the purchase price of these shares had been paid and the balance was payable in December 1980. It seems that the shares acquired from the Bell Group were mainly shares in Bell Air Charter Pty. Ltd. and, as a result, that company became a wholly-owned subsidiary of Control. Bell Air Charter had been legally or beneficially entitled to the Bell Group shareholding in A.T.I. (at p25)

25. The share registers of the companies were not produced. It was not clearly established whether the relevant share transfers or any of them were registered. However, the oral evidence indicated that Mr. K. R. Murdoch became chief executive of A.T.I. in December 1979. From this beginning the prosecutors sought to build a case that News and persons or companies associated with it had been admitted to the benefits of the Channel 10 Melbourne licence in contravention of the Act before any application was made in March 1980 to the Tribunal for approval. (at p26)

26. The Tribunal ruled that, if the prosecutors were unable to produce evidence to support their allegations, they should withdraw that part of their submission in which they alleged contraventions of the Act and of the criminal law and that they should apologise to the applicant. Counsel for the prosecutors declined to make the withdrawal or the apology. He submitted that, although he had secondary evidence consisting of press reports and Stock Exchange statements relating to share transactions, it would be preferable if the Tribunal had the benefit of primary evidence from the witnesses called by Control, from the minute books of the companies and from the documentary records regarding the share transactions and the relevant agreements. The Tribunal then ruled that, in the absence of admissible evidence presented by the prosecutors, the allegations of contravention of the Act and breach of criminal law would not be inquired into. The transcript records the Tribunal's rulings in this way:
"MR. NICHOLSON: Mr. Chairman, it is in no sense in dissent of that ruling, but I simply wanted to clarify, so that I do not contravene your ruling in cross-examination, what it amounts to. I just want to raise this with you at this stage.
As I understand the ruling - and I would ask it to be confirmed - the tribunal will not permit cross-examination intended to show that offences against firstly s. 92 of the Act, secondly any other section of the Act, thirdly any other offence on the part of the News group or any of its constituents, have been committed. Do I understand that correctly, sir?

THE CHAIRMAN: Yes, I believe that is so.
MR. NICHOLSON: It is simply that I do want to clarify the matter.

Secondly, and this is perhaps not quite so clear, but I understood from Mr. Hughes' last submission, that the tribunal will not permit me to introduce by way of secondary evidence material which tends to show such facts - for example, reports by the various companies to the Stock Exchange and so on. I understood that that was the tenor of your ruling, but again I would like to have that clarified.

THE CHAIRMAN: Yes, I believe that is correct. Is it not, Mr. Hughes?
MR. HUGHES: Yes. As I understood it, the effect of the submissions that

the tribunal was prepared to accept yesterday afternoon - that is submissions put by me - was that the tribunal would not permit what would be legally inadmissible evidence - any evidence that would be legally inadmissible - being tendered to support allegations of criminality.
MR. NICHOLSON: Thank you, Mr. Hughes. Now the third matter - and again, Mr. Chairman, I am in no sense trying to do anything other than clarify the position. It will be recalled that I sought to argue initially, and have put that I intended to argue, that a prescribed interest may be acquired at an earlier stage of a transaction than when the relevant shares are registered.
I gather that it was implicit in your ruling yesterday that the tribunal is not proposing to hear further argument on that matter. Am I correct in that, sir?

THE CHAIRMAN: That is correct, yes.
MR. NICHOLSON: Finally - and perhaps this is one matter that remains

unresolved - I did indicate that I was proposing to argue that, and to request the tribunal itself to summon evidence consisting of viva voce evidence from participants in transactions which led to the transfer, and I referred I think specifically to Mr. Murdoch and others, to have before it all relevant documents relating to the circumstances in which the News group acquired its interest in Ansett Transport Industries, and all relevant documents relating to the News group's disposal of its interest in TVQ - that they should be produced in evidence, and viva voce evidence should be given as to the sale of interests in TVQ.
I formally apply to the tribunal to call that evidence. I appreciate that the effect of the ruling would appear to preclude that being done, but again I would seek confirmation of that." (at p27)

27. Mr. Nicholson Q.C. continued with the cross-examination of Mr. Cooper and Mr. Murdoch. It was severely restricted as a result of the rulings given by the Tribunal. The chairman informed Mr. Nicholson that his time limit had expired and invited him to make an application for an extension of time. Mr. Nicholson declined to make an application for an extension of time, asserting that it was his right to continue cross-examination and that he expected his cross-examination "to go quite some time". The chairman reiterated that the Tribunal was entitled to set such limits as it wished on cross-examination. Mr. Nicholson then stated that there was little purpose in his client continuing to be represented before the Tribunal and that he and his junior would withdraw. This they did. (at p27)

28. Almost immediately after Mr. Nicholson and his junior withdrew, the matter of applications by the associated companies and Mr. Murdoch was raised by counsel assisting the Tribunal, Mr. Hughes Q.C., and Mr. Meagher Q.C. for Control. The transcript records what then passed.
"MR. HUGHES: There is just one other matter, Mr. Chairman. As the tribunal will be aware, the application before you at the moment is what I might term the head or principal application. If it were granted the tribunal would have to consider the question of approval to the acquisition by other companies, and indeed by Mr. Murdoch personally, of the prescribed interest which would accrue to those other companies and Mr. Murdoch in the event of the approval of the Control Investments application. Could I ask this - and I do not know whether I should ask Mr. Murdoch or perhaps counsel for Control Investments to make their position clear: Is it desired that in connection with the application for approval of the Control Investments proposed acquisition the tribunal take into account the other acquisitions in a subsidiary way of successive prescribed interests down the family tree?
THE CHAIRMAN: That is News Corporation, Cruden Investments, Kayarem Pty. Ltd. and Mr. Murdoch?

MR. HUGHES: Yes.
MR. MEAGHER: If I may answer my learned friend's query, the answer to

the question is 'Yes, it is', and express my gratitude to Mr. Hughes for bringing this matter to my attention because we had inadvertently overlooked it. I have applications in telex form from The News Corporation Limited, Kayarem Pty. Ltd. and Cruden Investments Pty. Ltd. and I am also making application on behalf of Mr. Murdoch personally. A letter will follow putting those applications in a more formal manner.

THE CHAIRMAN: Do you want those in as exhibits?
MR MEAGHER: Yes.
THE CHAIRMAN: We will take in The News Corporation telex as exhibit 5,

Kayarem Pty. Ltd.'s application as exhibit 6, Cruden Investments Pty. Ltd.'s application as exhibit 7.
MR. MEAGHER: Would the tribunal also be good enough to note that although you do not have a piece of paper there will be an application from Mr. Murdoch?
THE CHAIRMAN: Yes, we will." (at p28)

29. The first and foremost question to be determined is: What was the nature and scope of the inquiry which the Tribunal was undertaking? The answer to this question hinges on the provisions of s. 92F (to which we referred earlier) read in association with s. 16 (1) (c) and (g) and the general provisions of Div. 3 of Pt II relating to "Inquiries by the Tribunal". For the moment, discussion can be confined to s. 92F which sets the scope of the inquiry. Later we shall return to Pt II which deals with the functions and duties of the Tribunal. (at p28)

30. The significance of s. 92F is best understood if we keep in mind its relationship to the provisions relating to "shareholding interests" and "prescribed interests". The effect of these provisions is that when company A enters into a transaction by which it acquires shares in company B so as to give company A a prescribed interest in a commercial television licence, entry into that transaction by company A may have like consequences for companies X, Y and Z which are actual or derivative shareholders in company A. Whether companies X, Y and Z acquire a prescribed interest in the licence as a result of the transaction entered into by company A will depend on the extent of company A's shareholding interest in the licensee and the extent of the shareholding interests of companies X, Y and Z in company A. As we shall see, s. 92F does not in such a case make provision for one application for a general or blanket approval of the transaction, thereby legitimating all the shareholding interests which flow from it. Instead, the section contemplates the making of an application for approval by each person who as a result of the transaction acquires interests of the kind described. (at p29)

31. Section 92F (1) makes it clear that the section applies, not to a transaction as such, but "to a person in relation to a transaction", whether he is a party to it or not. By sub-s. (2) a person may apply to the Tribunal for approval of the transaction "in so far as it affects that person". Sub-section (3) emphasizes the fact that approval of a transaction is effected "in so far as it affects that person". The same expression appears in sub-s. (5). (at p29)

32. The effect of the provisions is that, in considering the application made by Control, the Tribunal's function was to decide whether it would grant or refuse approval of the transaction in so far as it affected Control. It was not appropriate on that application for the Tribunal to grant or refuse approval of the transaction in so far as it affected News and other companies with which it was associated. But it was convenient for the Tribunal to deal contemporaneously, as ultimately it did, with applications by other persons in consequence of the transaction which was the subject of Control's application. (at p29)

33. To say that it was not appropriate for the Tribunal on Control's application to grant or refuse approval of the transaction in so far as it affected News and persons and companies other than Control is not to say that contravention by persons other than Control is outside the inquiry or irrelevant to Control's application. (at p29)

34. In accordance with sub-s. (4), the Tribunal decided to hold an inquiry into certain matters which it determined to be relevant to the application of sub-ss. (4) and (4A) in relation to the transaction. Had it not decided to hold such an inquiry it would have been without power to refuse approval of the application. As the published notice of the inquiry demonstrates, the Tribunal determined that one of the relevant matters was whether "the applicant or any other person" will, as a result of the transaction, have a prescribed interest in each of three or more commercial television station licences (term 1). (at p30)

35. It was argued that in making this determination the Tribunal exceeded its authority because sub-s. (4A), par. (a) makes specific reference to contravention "by the person concerned", i.e. the applicant, and makes no reference to contravention by others. The sub-section prohibits refusal to grant approval unless the Tribunal (a) is of opinion that the transaction has resulted, or would result, in such a contravention; or (b) considers refusal necessary to maintain such ownership and control, direct or indirect, of the company holding the licence as will best accord with the public interest. (at p30)

36. The words of sub-s. (4) indicate that the potential boundaries of an inquiry into an application made under sub-s. (2) are not necessarily to be circumscribed by reference to the limited grounds on which the Tribunal may refuse to approve. But, in any event, we are unable to regard the reference to contravention by the applicant in par. (a) as impliedly excluding from the Tribunal's consideration contravention by others as a factor which is, or may be, relevant to the formation of the conclusion expressed in par. (b). The existence of a contravention of s. 92 (1) (a) on the part of a person other than the applicant has an obvious relevance to the maintenance of such indirect ownership and control of the company holding the licence as will best accord with the public interest. (at p30)

37. It follows that there is nothing in sub-s. (4A) which compels the unlikely conclusion that the Tribunal is prohibited from having regard to the possibility that the transaction would result in a contravention of s. 92 (1) (a) by companies other than Control, such as News. Nor does the time limit on the Tribunal's power to order divesting under sub-s. (3) impliedly support the existence of such a prohibition. The absence of the requisite approval gives rise to a criminal offence under sub-s. (5). The Tribunal was therefore acting within its statutory authority in formulating its terms of reference so as to include term 1. (at p30)

38. Thus far we have dealt only with contravention resulting from the transaction of which approval is sought. The prosecutors sought to go beyond this, requesting the Tribunal to investigate the possibility of contravention otherwise arising (a) from the acquisition of a shareholding interest in A.T.I. by News or companies associated with it before any decision was made to invest Control with ownership of the shares acquired; and (b) from a breach of s. 89A which may have occurred, not perhaps as a result of the transaction, but independently of it. Term 2 of the Tribunal's terms of reference is expressed somewhat differently from par. (b) of s. 92F (4A) on which it is based. But we do not think that the Tribunal intended to give less than full effect to that paragraph. Nor do we consider that it was open to the Tribunal to do so. Though sub-s. (4) enables the Tribunal to determine what matters are relevant to an inquiry, it must in defining the scope of the inquiry give full effect to par. (b) of s. 92F (4A). It could not reasonably be held that contraventions of the Act, whether resulting from the transaction or not, on the part of those having or acquiring substantial shareholding interests in the licensee, had no relevance to the public interest issue which par. (b) presents for the Tribunal's consideration. (at p31)

39. The suggestion that contravention by others was outside the scope of the inquiry or beyond the province of the Tribunal seems to have been made for the first time in this Court. The Tribunal made no such ruling; nor was it a view advanced by counsel at the inquiry. The Tribunal's ruling that it would not inquire into the possibility that the Act had been, or would be, contravened by Control and others was based on two different grounds: (a) that there can be no contravention unless shares are registered; and (b) that there should be no inquiry into the possibility of contravention unless the prosecutors advanced legally admissible evidence to support the suggestion. (at p31)

40. In this Court no attempt was made to sustain the Tribunal's ruling that a contravention of the Act, notably of s. 92 (1) (a), could not be made out unless the shares were registered. Quite plainly the statutory concepts of shareholding interests and prescribed interests embrace beneficial interests (s. 91 (3)). In those cases in which the vendor has been paid the purchase price and has delivered executed and registrable transfers of the shares to the purchaser, clearly the purchaser is the beneficial owner of the shares. Moreover, a purchaser who can by way of specific performance compel a transfer of shares under a contract is a beneficial owner of the shares. A contract for the sale and purchase of shares in a proprietary company such as Bell Air Charter, more particularly a contract for the sale and purchase of the entire share capital of the company, is capable of specific performance. And if Bell Air Charter was registered at the relevant time as the holder of shares in A.T.I., the purchaser of the share capital in Bell Air Charter would be the holder of the shareholding interest in A.T.I. by virtue of his beneficial holding of shares in Bell Air Charter and that company's registered shareholding in A.T.I. In any event, there are situations in which the purchaser of shares in a listed public company may be able to compel specific performance of his contract as, for example, when shares are unobtainable or they have special market value. The circumstances relating to A.T.I. shares at the end of 1979 may have created such a situation. In the absence of knowledge of the relevant agreements and the circumstances in which they were made it is impossible to be more specific. But enough emerges to indicate that counsel's decision not to support the Tribunal's ruling that registration of shares is essential to a contravention of s. 92 (1) was sound. (at p32)

41. The second ground taken by the Tribunal has very little to commend it. As we have seen, it was for the Tribunal under the terms of reference which it formulated for itself in accordance with the statute to inquire into the issue of contravention. Under s. 16 (1), which appears in Div. 2 of Pt II, the functions of the Tribunal include the granting of approvals and the giving of directions under Divs 2 and 3 of Pt IV in relation to the ownership and control of licences (par. (c)) and the holding of inquiries as provided by the Act and the publishing of reports in relation to those inquiries (par. (g)). Section 18 (1), which appears in Div. 3 of Pt II - "Inquiries by the Tribunal" - provides:
"Before taking action under this Act in relation to any matter, the Tribunal may if it thinks fit, and shall if this Act so provides, hold an inquiry in accordance with this Division into that matter." (at p32)

42. Although s. 92F (4) does not expressly refer back to the provisions of Div. 3 of Pt II, it is evident that the inquiry for which s. 92F (4) provides is an inquiry that is governed by the provisions of Div. 3 and that it is an inquiry to be held in accordance with the procedures which the Division prescribes. (at p32)

43. In this respect the provisions of s. 25 are important. Section 25 (1) and (2) provide:
"(1) The Tribunal shall, without regard to legal forms and solemnities, make a thorough investigation into all matters relevant to an inquiry under this Division, and may give all such directions and do all such things as the Tribunal considers are necessary or expedient for the expeditious and just hearing of the inquiry.
(2) The Tribunal is not bound by legal rules of evidence and may inform itself on any matter in such manner as it thinks fit." (at p32)

44. It follows from the provisions of s. 25 (1) that the Tribunal was under a statutory duty to make a thorough investigation into all matters relevant to the inquiry which it was holding pursuant to s. 92F (4). It was therefore under a statutory duty to investigate the possibility that contraventions of the Act had taken place on the part of Control and those associated with it. (at p33)

45. To discharge its duty the Tribunal must in an appropriate case investigate for itself the possibility of contravention, even in circumstances where there is no party before the Tribunal willing, anxious or able to pursue the issue. It will be noted that a party is given no right to compel the attendance of witnesses. It is for the Tribunal to decide who should be summoned before the Tribunal to give evidence and produce documents (s. 21 (2)). The appearance of a party in an inquiry before the Tribunal alleging that there are, or may be, contraventions of the Act cannot qualify or modify the Tribunal's statutory duty to inquire into relevant matters. By ruling that it would not inquire into contravention because the prosecutors were not calling legally admissible evidence, the Tribunal departed from its statutory responsibility. (at p33)

46. The suggestion that it was for the prosecutors to give specific particulars of the contraventions alleged, that they should call evidence and that they could not elicit evidence by cross-examination of Control's witnesses misconceives both the nature of the inquiry and the functions and duty of the Tribunal in relation to the inquiry. The prosecutors made it very clear that they had no knowledge of specific contraventions and that they had no specific case to present. But they made it equally clear that the circumstances detailed in the Tribunal's own information paper and in the oral evidence raised the possibility that contraventions had taken place, that it was the duty of the Tribunal to inquire into them and that the prosecutors wished to assist in that process by cross-examining Control's witnesses. (at p33)

47. The proceedings were not proceedings in a criminal court which might result in conviction and penalty where it would have been appropriate for the party alleging the offence to specify it and give appropriate particulars of it. The inquiry was an administrative inquiry in which the Tribunal had a statutory responsibility to inquire into the issue. It was bound to discharge its responsibility, notwithstanding that the same issue could arise in proceedings for offences against the Act. The possibility that proceedings might subsequently be commenced for offences was not a reason for the Tribunal refusing to allow questions to be put to witnesses in cross-examination which were relevant to the subject matter of the inquiry. There is no rule of law that a witness cannot be asked a question that tends to establish that an offence has been committed by a company with which he is connected, or for that matter by himself. In an appropriate situation the witness should be advised of his privilege against self-incrimination and he may exercise that privilege. But in this case the cross-examination of the witnesses did not travel so far. (at p34)

48. There is nothing in the suggestion that Mr. Nicholson, by refusing to apply for an extension of time for cross-examination and by departing from the inquiry, had waived his clients' right to relief by way of prerogative relief. He had previously put his clients' submissions to the Tribunal and contested its rulings whenever he was given the opportunity to do so. The Tribunal's rulings had been so adverse to the presentation of the case which he wished to present that it would have been pointless for him to remain. (at p34)

49. In the result, we are of the opinion that the Tribunal failed to discharge its statutory responsibility in that, by its rulings, it precluded itself from inquiring into matters which were relevant to the inquiry and which it was bound to investigate. (at p34)

50. Accordingly, mandamus must go to the Tribunal requiring it to conduct the inquiry according to law. (at p34)

51. Although it was not a ground taken in the order nisi the prosecutors also sought a mandamus to compel the Tribunal to assemble information under s. 106A (1) and to make it available to the prosecutors under s. 106A (3). The prosecutors have not shown that there was a failure to assemble information or to supply such information as had been assembled. (at p34)

52. There remains for consideration the prosecutors' case for prohibition. In the circumstances, mandamus is a sufficient remedy. However, some aspects of the case for prohibition call for brief comment. First, as to the Tribunal's power to limit cross-examination. We agree that, to the extent to which specific provision is not made by Div. 3 of Pt II, the Tribunal is the master of its own procedures, though in exercising its functions at an inquiry the Tribunal is subject to the rules of natural justice. Section 22 gives any person the right to examine witnesses, but that right (which must include the right to cross-examine) is expressly made subject to any directions the Tribunal may give under s. 25 (1). It follows that the Tribunal is entitled to place limits on cross-examination. However, generally speaking, it would seem an arbitrary exercise of the Tribunal's power to fix a time limit other than in respect of individual witnesses, or, in any case, without having regard to the nature of the issues and the evidence being given with respect to those issues. In the present case the submission made by the prosecutors made it evident that a time limit of half an hour was quite inadequate for a cross-examination designed to deal with the issues of contravention and public interest. Certainly the Tribunal made it clear that an application for extension of time would be considered and, perhaps, considered favourably. But the initial fixation of time, the comments subsequently made by the chairman and the indication that an extension would be for a limited period all indicate that the Tribunal fixed the time limit arbitrarily. This was partly due to the Tribunal's failure to recognize the scope and extent of its responsibility in relation to the inquiry. But it also reflected a failure to appreciate that counsel needs to know at the very commencement of cross-examination how long he will have so as to structure that cross-examination. (at p35)

53. The second matter calling for comment is the "panel system of cross-examination", an original and distinctive procedure fashioned by the Tribunal itself. In the upshot it ceased to be a live issue at the inquiry because the Tribunal ultimately required Mr. Murdoch to answer the questions put to him and to indicate when he was in need of assistance from Mr. Cooper. However, we should observe that it is a procedure which is calculated to hamper the cross-examiner and make it difficult to evaluate the worth of an individual witness. It certainly inhibits exploration of credit and this seems to be its main purpose. We appreciate that in administrative inquiries of this nature cross-examination as to credit should be kept to a minimum and that frequently it is not of great assistance to the Tribunal. None the less, there are other means by which unnecessary and unhelpful cross-examination as to credit can be eliminated or discouraged. There is much to be said when, as here, the proceedings have become adversarial in nature, for an adherence to the traditional practice of cross-examining witnesses individually and immediately after they have given their evidence-in-chief. If a witness is unable to answer questions, the Tribunal may in appropriate cases permit him to obtain information from others or require that information to be given by other witnesses. (at p35)

54. There is one final matter. Mr. Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors' case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. 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. (at p36)

55. In the result, we would make absolute the order nisi for mandamus. (at p36)

ORDER

Order absolute for a writ of mandamus commanding the Australian Broadcasting Tribunal, Bruce Gyngell (Chairman of the Australian Broadcasting Tribunal) and Keith Moremon (Member of the Australian Broadcasting Tribunal) to conduct in accordance with law the presently adjourned inquiry under s. 92F of the Broadcasting and Television Act 1942 (Cth), as amended, into the matters relating to the transaction involving the acquisition by Control Investments Pty. Ltd. of shareholding interests in Ansett Transport Industries Ltd. specified in the notice of inquiry given on 24th March 1980.