- Under clause 9 of the Australian content standard made by the Australian Broadcasting Authority (ABA), Australian programs had to comprise 55% of all broadcasts between 6am and midnight.
- Section 160(d) of the Broadcasting Services Act 1992 (Cth) (the Act) required the ABA to perform its functions in a manner consistent with Australia’s international obligations.
- There was a trade agreement between Australia and New Zealand, which provided that Australia and New Zealand would offer equal access and treatment to persons and services of the other country. This was considered as an obligation under the Act.
- The Australian content standard (or at least cl 9) did not provide equal treatment for Australian and New Zealand programs.
What was the effect of non-compliance with s 160(d) of the Broadcasting Services Act on the Australian content standard
- The High Court held that clause 9 of the Australian content standard was contrary to section 160(d) of the Act.
- Section 160 of the Act regulated an existing function, which “strongly indicate[d]” that a breach of section 160 should not invalidate a decision.
- Section 160 of the Act did not impose “a rule-like quality” that could easily be identified and applied.
- The majority of the considerations listed in section 160 concerned matters of policy.
- Australia’s international obligations are often expressed in indeterminate language; this language describes goals to be achieved rather than rules to be obeyed.
- However, the standard was unlawful but not invalid.
- Accordingly, a person with an interest could apply for a declaration that the relevant clause of the standard was unlawful, and could (if appropriate) apply for an injunction to prevent the ABA from taking any further action in reliance on that clause.
“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.”
(McHugh, Gummow, Kirby and Hayne JJ at )
The full text is available here:
Save this case