Re: TCN Channel Nine Pty Limited, General Television Corporation Proprietary Limited, United Telecasters Sydney Limited and Austarama Television Pty Limited and: Australian Mutual Provident Society

(1982) 62 FLR 366

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(Judgment by: Bowen CJ, Lockhart J, Ellicott J)

Between: TCN Channel Nine Pty Limited, General Television Corporation Proprietary Limited, United Telecasters Sydney Limited and Austarama Television Pty Limited
And: Australian Mutual Provident Society

Court:

Judges:
Bowen CJ
Lockhart J
Ellicott J

Subject References:
Broadcasting and Television
Post and Telegraph
Evidence
Statutes

Hearing date: 15-16 July 1982
Judgment date: 20 August 1982

Sydney

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Judgment by:
Bowen CJ
Lockhart J
Ellicott J

At the request of four applicants, who were licensees of commercial television stations in Melbourne and Sydney, four questions of law were referred by the Australian Broadcasting Tribunal to the Federal Court of Australia pursuant to s. 22B of the Broadcasting and Television Act 1942.

The facts appear in the judgment.

The Australian Broadcasting Tribunal ("the Tribunal") has referred certain questions of law to this Court for decision pursuant to s. 22B of the Broadcasting and Television Act, 1942 ("the Act"). It is convenient to mention the relevant facts before stating the particular questions of law.

By application dated 20 January 1982 the respondent, Australian Mutual Provident Society ("the Society"), applied to the Tribunal for written certificates pursuant to s. 91D of the Act authorising the Society to hold shareholding interests up to 9.9999% in certain companies. The names of those companies together with the 'shareholding interest' held by the Society in each of them at the date of its application are as follows:-

A person has a 'shareholding interest' in a company (see sub-s. 91 (3)):-

'...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); and

(b)

the amount of the shareholding interest is an amount equal to the value of the shares, or of the person's interest in the shares, as the case requires, on the basis that the value of the shares is equal to the amount paid on the shares.'

TCN Channel Nine Pty. Limited, the first applicant, is the licensee of Sydney commercial television station TCN-9. General Television Corporation Proprietary Limited, the second applicant, is the licensee of Melbourne commercial television station GTV-9. United Telecasters Sydney Limited, the third applicant, is the licensee of Sydney commercial television station TEN-10. Austarama Television Pty. Limited, the fourth applicant, is the licensee of Melbourne commercial television station ATV-10. Universal Telecasters Qld. Limited is the licensee of Brisbane commercial television station TVQ-0. Herald-Sun TV Pty. Limited is the licensee of Melbourne commercial television station HSV-7. Amalgamated Television Services Pty. Limited is the licensee of Sydney commercial television station ATN-7. Brisbane TV Limited is the licensee of Brisbane commercial television station BTQ-7. Television Broadcasters Limited is the licensee of Adelaide commercial television station ADS-7.

After the Society applied to the Tribunal for written certificates pursuant to s. 91D the Tribunal decided to hold an Inquiry under Division 3 of Part II of the Act. The Tribunal gave approval to the four applicants, as persons directly concerned in the Inquiry, to be represented before it for the purposes of s. 22 of the Act. The applicants opposed the granting of the certificates.

Evidence was tendered by the Society to the Tribunal:-

'(a)

of the Society's past and present policy with regard to portfolio investments;

(b)

of the Society's practice not to intervene in the management of companies in which it holds shares;

(c)

of the Society's willingness to undertake to the Tribunal not to seek to exert any influence over the operations conducted under or by virtue of any commercial television licence held by a licensee in which the Society has a shareholding interest;

(d)

on the basis of which the Society seeks to establish that it is unlikely as the holder of any shareholding interests in relation to which a certificate under Section 91D of the Act may be granted that it would interfere with the licensee's management of the commercial television station to which any such certificate relates."

At the request of the applicants the Tribunal referred the following questions of law to this Court pursuant to s. 22B:-

'1.

Whether the Tribunal is empowered by s. 91D of the Act, on its true construction, to issue a certificate authorising a person to hold shareholding interests in a company some or all of which interests are not, at the time of the application, held by the person applying for the issue of the said certificate;

2.

Whether the Tribunal is empowered by s. 91D of the Act, on its true construction, to issue a certificate authorising a person to hold shareholding interests in a licensee company such interests being specified in the said certificate as a percentage of all shareholding interests in the said licensee company;

3.

Whether the Tribunal is empowered by s. 91D of the Act, on its true construction, to issue a certificate authorising a person to hold shareholding interests being specified in the said certificate as a percentage of the paid up capital of the said licensee company;

4.

Whether the Tribunal in satisfying itself of the matters raised for its determination by para.91D (3) (b) of the Act can lawfully take into account:-

(a)

the past and present policies and practices of an applicant in respect of its portfolio investment activities;

(b)

the stated intentions of an applicant in respect of its present interests in or its proposed interests in the licensee company;

(c)

the likelihood of an applicant either alone or in association with any other person or persons exercising either directly or indirectly a significant influence on a licensee company in respect of which an application has been made.

Section 91D is a lengthy section, but it must be set out in full. It provides:-

'91D(1)

A person may apply to the Tribunal, in accordance with the form approved by the Tribunal, for a certificate under this section authorizing him to hold interests in a company holding a licence.

(2)

On receipt of an application under this section relating to interests in a company, the Tribunal may, in its discretion, but subject to sub-sections (3) and (4), issue a written certificate to the applicant authorizing him to hold either or both of the following, as specified in the certificate, namely

(a)

shareholding interests in the company amounting to a specified amount;

(b)

loan interests in the company amounting to a specified amount.

(3)

A certificate under this section shall not authorize a person to hold interests in a company holding a licence unless-

(a)

the commercial television station operated by virtue of the licence is one of 2 or more such stations the programs of which are designed to be satisfactorily received in the same area or substantially the same area; and

(b)

the Tribunal is satisfied that the person is not, and is not likely to be, whether alone or in association with any other person or persons, in a position to exercise, either directly or indirectly, a significant influence on that company.

(4)

A certificate under this section shall not authorize a person to hold interests in a company such that, if the person were the holder of those interests, or of those interests together with any interests for the time being authorized by another certificate or other certificates issued under this section to the person, the person would be-

(a)

in a position to exercise control of more than 10% of the maximum number of votes that could be cast on a poll at, or arising out of, a general meeting of the company, whether as regards all questions that could be submitted to such a poll or as regards one or more only of such questions;

(b)

the holder of interests in the company exceeding in amount 10% of the total of the amounts of all the interests in the company that would exist if sections 91A and 91B had not been enacted; or

(c)

the holder of shareholding interests in the company exceeding in amount 10% of the total of the amounts paid on all shares of the company.

(5)

A certificate under this section may be made subject to the condition that it ceases to have effect on a specified date, being not less than 12 months after the date on which the certificate is issued.

(6)

If, at any time after a certificate has been issued authorizing a person to hold interests in a company, the Tribunal becomes aware of circumstances by reason of which it would be prohibited by sub-section (3) from issuing a certificate authorizing the person to hold those interests, the Tribunal shall serve a notice in writing on the person setting out particulars of the circumstances and inviting him to lodge with the Tribunal, within a specified period, being not less than 14 days after the service of the notice, a submission in writing stating why the certificate should not be revoked.

(7)

After the expiration of the period specified in a notice served on a person under sub-section (6) and after considering any submission lodged in response to the notice, the Tribunal shall, by notice in writing, revoke the certificate concerned if it would be prohibited by sub-section (3) from issuing a certificate authorizing the person to hold the interests to which the first-mentioned certificate relates.

(8)

The revocation of a certificate under sub-section (7) takes effect at the expiration of the period of 6 months after the date of service of the notice of revocation or such further period as the Tribunal, on application, allows by notice in writing served on the holder of the certificate within that period of 6 months.

(9)

So long as a person-

(a)

holds interests in the company holding a licence as authorized by a certificate in effect under this section; and

(b)

does not hold any interest in the company otherwise than as so authorized,

then, for the purposes of this Division, the person shall not be taken, by reason only of the application of paragraph 91 (2) (c), (d) or (e), to have a prescribed interest in the licence.

(10)

The Tribunal shall make available for public inspection copies of all certificates issued under this section."

The ownership and control provisions of Division 3 of Part IV of the Act are complex. They were discussed by a Full Court of this Court in Bisley Investment Corporation Limited v. Country Television Services Limited (1982) 40 A.L.R. 233 , and need not be repeated. Substantial amendments were made to those provisions by Act No. 113 of 1981 ("the 1981 Act"). One of the amendments was the introduction of s. 91D. Although in Bisley the Court considered the Act in its form before the amendments were made by the 1981 Act, much of what was said there still applies.

Section 91D in effect exempts from the ownership and control provisions of the Act certain persons holding shareholding interests or loan interests in companies holding television licences. The section speaks of 'interests', and that word is defined in sub-s. 91 (1) as meaning a shareholding interest or a loan interest. We have already referred to sub-s. 91 (3) which defines the circumstances in which a person has a shareholding interest in a company for the purposes of Division 3 of Part IV of the Act. As to loan interests, sub-ss. 91 (4) and (5) provide:-

'(4)

For the purposes of this Division but subject to sub-section (5)-

(a)

a person has a loan interest in a company holding a licence if he is, or would be, beneficially entitled to, or to a part of, moneys of any of the following descriptions payable or becoming payable by the company (whether the moneys are presently payable or not, whether the liability of the company is unconditional or not and whether or not there is security for the payment of the moneys), namely:

(i)

moneys, other than interest, payable under, or secured by, debentures of the company;

(ii)

other moneys payable by the company, being moneys payable by way of repayment of moneys lent to, or deposited with, the company by any person; or

(iii)

moneys payable under a negotiable instrument to the extent that the instrument is in respect of, or the liability to pay those moneys is in substitution for, a liability to pay moneys to which sub-paragraph (i) or (ii) relates; and

(b)

the amount of the loan interest is the amount of those moneys or of that part of those moneys, as the case requires.'

'(5)

The moneys to which sub-section (4) relates do not include-

(a)

moneys payable to a bank in respect of an overdraft; or

(b)

moneys payable to a person as consideration in respect of the supply by that person of equipment for use as part of, or in the operation of, a television station.'

On receipt of an application in the approved form the Tribunal may issue a certificate authorising the investments in question, whether shareholding interests or loan interests or both (sub-ss. 91D (1) and (2)). The Tribunal may hold a public inquiry before doing so (sub-s. 18 (1)). The Tribunal must make available for public inspection copies of all certificates issued under the section (sub-s. 91D (10)).

The exemptions apply only in restricted circumstances and to a limited extent. A certificate issued under the section applies only to commercial television licensees which have at least one competitor in the area of their service (para. 91D (3) (a)). In practice this means the five mainland State capitals. The certificate cannot issue unless the Tribunal is satisfied that the applicant is not, and is not likely to be, in a position to exercise a significant influence on the licensee company whether alone or in association with others and whether directly or indirectly (para. 91D (3) (b)).

An important qualification on the issue of certificates is that they cannot authorise shareholding or loan interests greater than 10% of the total interests in the licensee company (sub-s. 91D (4)). That sub-section expresses that qualification by repeating the three tests of paras. 91 (2) (c) to (e) relating to prescribed interests substituting a limit of 10% for the normal 5%.

The Tribunal may issue a certificate to last indefinitely or for a specified period being not less than 12 months (sub-s. 91D (5)). If the Tribunal later becomes aware of circumstances by reason of which it would be prohibited by sub-s. 91D (3) from issuing a certificate, it must serve a notice in writing on the person to whom the certificate was issued inviting him to lodge within a specified period a submission in writing stating why the certificate should not be revoked (sub-s. 91D (6)). After the expiration of the period specified in the notice and after considering any submission lodged in response to the notice the Tribunal shall revoke the certificate if it would be prohibited by sub-s. 91D (3) from issuing a certificate authorising the person to hold the interest to which the certificate in fact issued relates (sub-s. 91D (7) ). The revocation of the certificate takes effect not earlier than the expiration of six months after the date of service of the notice of revocation (sub-s. 91D (8)).

It is convenient to summarise the principal submissions of the parties as to the proper construction of s. 91D. The first and second applicants made alternative submissions. First they submitted that the section was confined to persons who had acquired interests in the licensee company through transactions to which they were not parties before making application to the Tribunal for approval. They relied on their argument that the mischief, or the primary mischief, to which the section was directed was the inadvertent contravener who found himself in breach of ss. 92 or 92F, not because of any voluntary act on his part, but because of share or loan transactions by companies in which they held shareholding interests. They argued that s. 91D operates in tandem with s. 92FAA, both sections having been introduced by the 1981 Act to provide protection for persons who have involuntarily acquired prescribed interests in television licences in excess of the number permitted by s. 92.

The alternative argument advanced by the first and second applicants was that, whether or not s. 91D is confined in its operation to inadvertent contraveners, it does not in either case empower the Tribunal to grant certificates otherwise than with respect to an interest which is actually held at the time when a certificate is sought.

The third and fourth applicants adopted these submissions but submitted in the alternative that s. 91D, when read together with s. 92F, permits applications for the issue of certificates to be made either by persons who were parties to a transaction that had already taken place (sub-s. 92F (1) ) and who thus held interests in the licensee company at the time of the application or by persons who would be parties to a proposed transaction if it were to take effect (para. 92F (2) (b) and sub-s. 92F (3) ). It was submitted that this construction was consonant with the language of s. 91D and with the scheme of Division 3 of Part IV of the Act, in particular s. 92F.

The Society conceded that inadvertent contraveners of ss. 92 or 92F could apply for certificates under s. 91D, but submitted that the plain words of the section permitted any person to apply for a certificate, whether an inadvertent contravener or not, and whether or not it held a prescribed interest at the time of the application. The Society argued that the language of s. 91D was apposite to include as an applicant for a certificate a person who does not hold a prescribed interest at the time of his application and may never do so; but wishes to have the protection of the certificate in the event that he acquires a prescribed interest some time in the future.

If sub-s. 91D (1) is read alone, its language is sufficiently wide to encompass interests which are held or are proposed to be held at the time the application is made to the Tribunal. The language of that sub-section would also include interests which are not held or even proposed to be held at the time of the application and which may never in fact be held by the applicant. On this approach the Society would qualify as an applicant on the facts of this case because it does not hold the relevant interests at this stage and there is no evidence of any particular proposed transaction to which it would be a party and as a result of which would become the holder of interests. It simply seeks approval to a mere possibility. Hence the form of the application namely, that the Society may hold shareholding interests up to 9.9999% in the various television companies in which it already holds shareholding interests.

However, when sub-s. 91D (1) is read in the light of the remainder of the section it is plain to us that Parliament did not intend so wide a construction to be given to the section. It permits the issue of a certificate authorising the applicant to hold 'either or both of the following' (i.e. shareholding interests amounting to a specified amount or loan interests amounting to a specified amount) 'as specified in the certificate'. It seems to us that these latter words, if they are not to be mere surplusage, are intended to require the particular shareholding interests or loan interests the subject of the certificate to be specified or particularised. If all they were intended to require was an indication of whether shareholding or loan interests, as such, were involved, they would add nothing. In our view, the word 'specified' is used in the sense of stating in detail or with particularity. To specify the shareholding or loan interests in the certificate requires more than a mere statement that the holder of the certificate is authorised to hold shareholding or loan interests in the company concerned. It must give details of the particular interests the holding of which is authorised.

To take a simple example. If A agrees with B to buy from him his holding of 10,000 ordinary shares in a licensee company subject to approval being given under s. 91D, any certificate which the Tribunal issues should state that authority is given to A to hold the specified parcel of 10,000 ordinary shares in the capital of the licensee company which B holds, identified in the certificate in some precise way, e.g. 'the 10,000 ordinary shares in the capital of the company numbered 1 to 10,000' or, as the case may be. This does not mean that, in the case of a proposed transaction, the particular shares which will be held pursuant to the certificate must be identified. For instance, if A had agreed to sell to B 10,000 of A's total holding of 100,000 shares in the capital of a company it would be sufficiently specific to refer to 10,000 of A's shares numbered 1 to 100,000". It could of course encompass other situations. An applicant might be about to acquire shares in different companies which would be, wholly or in part, the subject of the tracing provisions (see s. 91A) or he might be acquiring shares by means of an issue. Whatever the commercial arrangement, the requirement of the section, in our view, is that the certificate must specify the interest in question with sufficient particularity to enable it to be identified as the relevant authorised shareholding interest. This can be done where the interest is already held or where the applicant is a party to a proposed transaction for the acquisition of an interest. It cannot be done where no specific proposal is envisaged.

There is an additional requirement of sub-s. (2) namely, that the specification of the interest in the licensee company must be shown as 'amounting to a specified amount'. In the case of shareholding interests this can be expressed as a percentage of the paid up capital of the licensee company. Under sub-s. 91D (9) a person shall not be taken, by reason only of the application of paras. 91 (2) (c), (d) or (e), to have a prescribed interest in a licence so long as he holds interests in the licensee company as authorised by a section 91D certificate and does not otherwise hold any interest in the company. Paragraph 91 (2) (e) (paras. 91 (2) (c) and (d) not being relevant for this purpose) provides that for the purposes of Division 3 of Part IV a person has a prescribed interest in a licence if he is:-

'(e)

the holder of shareholding interests in the company holding the licence exceeding in amount 5% of the total of the amounts paid on all shares in that company.'

Thus para. 91 (2) (e) itself speaks of an amount in terms of a percentage of the total of the paid up capital of the licensee company whose shareholding interests are concerned. This provides strong support for our view that shareholding interests can be expressed as a percentage of paid up capital. However, even if para. 91 (2) (e) were not so expressed we would have come to the same conclusion because 'amount' is a word of wide import. We see no reason why it cannot be expressed or measured as a percentage.

This is not to say, of course, that the shareholding interest must be expressed in the certificate as a percentage of paid up capital. It might for instance be described as 'amounting to $ ' or 'amounting to $ of the total paid up capital of' the company. It must be borne in mind that, under the Act, shareholding interests can be traced through a series of companies (s. 91A). With these matters in mind the words 'amounting to a specified amount' assume real significance. They are not a mere repetition of the phrase 'as specified in the certificate'. They enable the Tribunal not only to particularise the holding in question but also to specify, for example, the percentage of the paid up capital of the company which that holding represents either directly or as a result of the tracing provisions. This is a material factor because of the 10% limits prescribed by sub-s. 91D (4). If so specified it is at least a warning that, if exceeded, the provisions of the latter sub-section might be infringed.

Paragraph 91D (3) (b) also supports a construction of the section which includes particular interests held or proposed to be held at the time the application is made, but does not include interests which are not even the subject of a proposed transaction. The paragraph provides that a certificate shall not authorise a person to hold interests in a company holding a licence unless:-

'(b)

the Tribunal is satisfied that the person is not, and is not likely to be, whether alone or in association with any other person or persons, in a position to exercise, either directly or indirectly, a significant influence on that company.'

In considering applications under s. 91D the Tribunal must act according to common sense. The section is dealing with practical considerations. The use of the word 'influence' demonstrates this. The paragraph does not speak of 'control' of the licensee company, a narrower and more technical word than 'influence' (see the definition of 'control' in sub-s. 91 (1); see also sub-s. 92B (1)). For the Tribunal to be satisfied of the matters referred to in para. 91D (3) (b) it must be able to inform itself of all matters bearing on the question of the significant influence which the applicant is or is likely to be in a position to exercise on the licensee company. These inquiries cannot be made in the abstract. They must be founded on actual circumstances providing a basis from which the Tribunal may determine, when holding its inquiry, the degree of influence that the applicant is or may be in a position to exercise. There can be no such basis unless a specific interest or proposed interest of the applicant can be compared with other shareholding interests for the purpose of determining the applicants' present capacity or likely future capacity to exercise influence over the licensee company. In this respect it is plain that the spread of shareholding in both the company in which the applicant holds shares and in the licensee company will be relevant.

We see in s. 91D a clear legislative intent that the Tribunal must have before it ascertainable facts, not mere possibilities, when exercising its powers under the section. It may issue a certificate for such period as it thinks fit being not less than twelve months (sub-s. 91D (5) ). It may review its decision from time to time in the light of changed circumstances (sub-ss. 91D (6) and (7)). This runs counter to the notion that the Tribunal's task is one of conjecture based on hypothetical future possibilities - a proposition inherent in the Society's argument. It is present circumstances that concern the Tribunal. From them it may gauge the likely influence of the applicant on the licensee company. To import the consideration of mere hypothetical possibilities into the Tribunal's role is to assign it an impermissible task of speculation rather than informed assessment.

Also if the Society's argument is correct the Tribunal will be obliged to speculate as to the identity of the person from whom the applicant may acquire his interest. The point is well illustrated by an example given by the first and second applicants in their written submissions. If a company is owned as to 19% by A, 9% by B and 72% by some thousands of small shareholders with no association inter se, and if an applicant seeks a 'prospective' certificate to hold 10% of the shares in the company, the answer depends largely on the identity of the seller of the shares to the applicant. If the applicant buys them from the other sundry shareholders there may be little change. If, however he buys them from A then the situation is totally altered and the applicant as the largest single shareholder, may, for all practical purposes, control the company.

If Parliament had intended s. 91D to empower the Tribunal to give blanket prospective authorisation in respect of shareholding interests up to 10% of the total of the amounts of all the interest in the licensee company (para. 91D (4) (d) ) or up to 10% of the total of the amounts paid on all shares of the licensee company (para. 91D (4) (c) ) we would expect to find a requirement that the holder of the certificate notify the Tribunal of any changes in his shareholding interest and power in the Tribunal to revoke the certificate upon less than six months' and two weeks' notice (see sub-ss. 91D (6), (7) and (8)).

In other words it seems to us to introduce an academic flavour to the Tribunal's task under s. 91D unless it has before it a particular set of circumstances involving a clearly identifiable transaction or proposed transaction in respect of specific shareholding or loan interests in the licensee company.

In our view s. 91D is designed to exclude from the ownership and control provisions of the Act persons who hold specific shareholding or loan interests in licensee companies where the holding of those interests is authorised by certificates issued by the Tribunal. Parliament did not intend to enable a person to obtain a blanket authority for the prospective holding of interests which he may never in fact hold and which cannot be precisely identified and particularised at the time of the application. Notwithstanding that the section is an enabling provision and should be construed liberally it must be remembered that a certificate under s. 91D confers a considerable privilege upon its holder in that it exempts him from the ownership and control provisions of the Act in respect of the interest the subject of the certificate. Also, it is interesting to note that all parties agreed that if the relevant application under s. 91D is to hold shares directly in the licensee company itself (and not in a company which itself owns shares in the licensee company) it would be a considerable commercial advantage to the applicant to hold a certificate under the section authorising him to hold shares up to a particular percentage of the paid up capital of the licensee company without being necessarily tied to a specific transaction or proposed transaction.

In the result we reject the view that s.91D can encompass applications for authorisation of prospective acquisitions of shareholding interests in a licensee company which are not the subject of actual or proposed transactions at the time the applications are made to the Tribunal.

However we do not accede to the submission of the applicants that s. 91D is available only to inadvertent contraveners of ss. 92 or 92F or those who hold prescribed interests in the licensee company at the time the application is made. To so construe the section would be contrary to its plain language, tenor and purpose. We agree with counsel for the Society that this construction contended for by the applicants would necessarily involve the introduction of words of restriction which would be contrary to the very language of the section itself. Further, we see no inconsistency between the section construed as we think it should be construed and other relevant provisions of Division 3 of Part IV of the Act.

At the outset of the hearing of the appeal the question arose as to the admissibility of certain documents. Counsel for the first and second applicants tendered extracts from Hansard of the Second Reading Speech on 3 June 1981 of the Minister for Communications when introducing the Broadcasting and Television Amendment Bill 1981 to the House of Representatives, extracts from the Second Reading Speech on 9 June 1981 of the Minister responsible for the passage of the Bill through the Senate and the Explanatory Memorandum circulated with the Bill. These documents were tendered on the ground that they were said to identify the mischief which s. 91D was intended to remedy. Counsel for the Society objected to the tender of the documents. We admitted the documents as Exhibits 'B', 'C' and 'D' subject to relevance and deferred dealing with their final admissibility.

Counsel for the first and second applicants relied in particular upon the following statement of the Minister for Communications reported on page 3001 of Hansard for 3 June 1981 as identifying the mischief:-

'...section 91D...addresses the problem of breaches of section 92 of the Act by third parties acquiring excess prescribed interests as a result of share transactions by other persons. Experience has shown that an investor can be put in breach of the Act through the purchase of shares by another party in which the investor is a shareholder, because of the tracing provisions of the Act. The problem of the third party breaches of the Act has arisen with institutional investors, because of their large and diversified portfolio shareholdings.'

Section 92, referred to in the Minister's speech, provides that it is an offence for a person to have a prescribed interest in more than a specified number of television licences.

Mason J. said in Wacando v. Commonwealth of Australia (1981) 37 A.L.R. 317 (at p. 335) and again in F.C. of T. v. Whitfords Beach Pty. Limited (1982) 39 A.L.R. 521 (at pp. 533 and 534):-

"In construing s. 1 it is permissible to have regard to the mischief to which the Act was directed. Generally speaking, reference cannot be made to what is said in Parliament for the purpose of interpreting a statute. But in my opinion there are grounds for making an exception for the case where a bill is introduced to remedy a mischief. Then, to have regard to the purpose for which the legislation was enacted as stated by the Minister in charge of the bill would conform to the rule that extrinsic material is admissible to show the mischief which the statute is designed to remedy. I acknowledge that the inadmissibility of parliamentary debates, as an aid to the construction of statutes is supported by powerful authority (see generally Bitumen and Oil Refineries (Aust.) Ltd. v. Commissioner for Government Transport (1955) 92 C.L.R. 200 ; Australasian United Steam Navigation Co. Ltd,. v. Hiskens (1914) 18 C.L.R. 646 at 672; South Australia v. Commonwealth (1942) 65 C.L.R. 373 ; South Australian Commissioner for Prices and Consumer Affairs v. Charles Moore (Aust.) Ltd. (1977) 139 C.L.R. 449 ; 14 A.L.R. 485 ; Davis v. Johnson [1979] A.C. 264 ; (1978) 1 All E.R. 1132). But there is a case for treating the Minister's statement, particularly when it is not contested, as cogent evidence of the mischief aimed at, evidence certainly as cogent as the extrinsic materials from which the court would draw an inference in many cases."

No other members of the High Court who sat in either of those appeals dealt with this question. In Whitfords Beach, Gibbs C.J. said at p. 525:-

'I do not consider it admissible to attempt to discover the intention of the Parliament in enacting s. 26 (a) by having regard to statements made by the Minister when the Bill was introduced, but I must add that such material of that kind as I have seen does not reveal any clear reason for the enactment of the second limb of s. 26 (a).'

In that passage the Chief Justice rejected the proposition that reference can be made to what is said in Parliament for the purpose of interpreting a statute; but it does not appear to us that his Honour was considering whether it was permissible to examine the Minister's statement in Hansard as evidence of the mischief to which a statute is directed.

The Explanatory Memorandum on its face is stated to be 'circulated by authority of the Minister for Communications the Rt. Hon. Ian Sinclair M.P.'. Such memoranda are usually circulated in both Houses of Parliament to members with the Bill to which it refers when that Bill is introduced by the relevant Minister.

We therefore propose to admit the Hansard reports of the second reading speeches of the relevant Ministers and the Explanatory Memorandum. They support the view that inadvertent breaches of the Act by shareholders who acquire prescribed interests in television broadcasting licences through share transactions by other persons constituted at least part of the mischief designed to be remedied by s. 91D. Those passages do not, however, support the argument of the first and second applicants that s. 91D is confined solely to inadvertent contraveners of the Act who acquired prescribed interests before they applied to the Tribunal under the section.

In the result we would answer question 1 as follows:-

The Tribunal is empowered by s. 91D of the Act upon its true construction to issue a certificate authorising a person to hold shareholding interests in a company holding a licence if the person applying for the issue of the said certificate at the time of the application either holds the shareholding interest the subject of the application or is a party to a proposed transaction under which, if it comes into effect, he will hold the shareholding interest the subject of the application, but not otherwise.

As to question 2, it was agreed by all parties that it must be answered in the negative for two reasons. First, because a certificate which referred to the authorised shareholding interest as a percentage of all shareholding interests in the licensee company would not conform with the requirements of s. 91D itself that the certificate specify the 'shareholding interests in the company amounting to a specified amount' (para. 91D (2) (a) ). Second, because to express particular shareholding interests in the licensee company as a percentage of all shareholding interests in the company would be impossible in almost every case by reason of the operation of s. 91A which requires shareholding interests to be traced back through companies thereby creating further shareholding interests in the licensee company. In the result there could be shareholding interests of more than 100% of the capital of the licensee company. In answering question 1. we found it necessary to determine matters, to which we have already referred which in substance answer question 3. Accordingly, we answer question 3 as follows:-

The Tribunal is empowered by s. 91D of the Act to issue a certificate authorising a person to hold shareholding interests in a licensee company, such interests being particularised in the certificate and specified therein as a percentage of the paid up capital of the licensee company.

As to question 4, in view of our answer to question 1, this question does not arise.

As to costs, the principal question involved in the reference to this Court was question 1. As the applicants have substantially succeeded on this question the Society should pay their costs of the reference (see G.T.K. Trading Proprietary Limited v. Export Development Grants Board, a judgment of a Full Court of this Court 7 May 1982, unreported).