Legal database - View: Cases: Australian Broadcasting Tribunal v Bond

AUSTRALIAN BROADCASTING TRIBUNAL v. BOND & ORS
(1990) 170 CLR 321
(1990) F.C. 900/32

(Decision by: MASON CJ)

Between: AUSTRALIAN BROADCASTING TRIBUNAL
And: BOND & ORS

Court:

High Court of Australia

Judges:
Mason CJ Brennan J
Deane J
Toohey J
Gaudron J

Subject References:
Administrative Law (Cth)
Broadcasting and Television

Judgment date: 26 July 1990

Decision by:
MASON CJ

This appeal is brought from orders made by the Full Court of the Federal Court by way of judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") of various decisions, findings and rulings made by the appellant, the Australian Broadcasting Tribunal ("the Tribunal"), in an inquiry which it held under s.17C(1) of the Broadcasting Act 1942 (Cth) ("the Act").

2. The respondents are Mr Alan Bond (the first respondent), Mr David Aspinall (the fifth respondent), Bond Corporation Holdings Limited (the third respondent) ("BCH"), of whose Bond Media Division Mr Aspinall is the Chief Executive, Queensland Television Limited (the sixth respondent) ("QTL"), of which Mr Aspinall was at all material times Executive Director, and five other companies associated with Mr Bond. The relationship which exists between Mr Bond and the companies, including QTL, and between the companies themselves is set out in the reasons for judgment prepared by Toohey and Gaudron JJ. For present purposes it is sufficient to say that, by reason of his shareholding in Dallhold Investments Pty. Ltd. (the second respondent) ("Dallhold"), Mr Bond is able to determine the composition of the boards of directors of Bond Media Limited (the fourth respondent) ("Bond Media") and the sixth to ninth respondents. They are subsidiaries, at one or more removes, of Bond Media and are the holders of commercial licences under the Act. QTL holds a commercial television licence for station QTQ-9, Brisbane. Consolidated Broadcasting System (W.A.) Pty. Limited (the seventh respondent) is the licensee of radio stations 6AM and 6KG. North West Radio Pty. Ltd. (the eighth respondent) holds the commercial licences for radio stations 6KA and 6NW and Darwin Broadcasters Pty. Limited (the ninth respondent) holds the commercial licence for radio station 8DN.

3. Mr Bond played a prominent, even a dominating, role in the activities of the respondent companies. The inquiry related to his participation in certain transactions involving the companies, in particular QTL. It was alleged that the circumstances of Mr Bond's participation in these transactions reflected adversely on his fitness and consequently upon the fitness of the licensee companies to hold commercial licences under the Act. The Tribunal, having found after a lengthy inquiry that Mr Bond was guilty of improper conduct in various respects, concluded that he would not be found to be a fit and proper person to hold a commercial broadcasting licence under the Act, notwithstanding that he did not hold and, being a natural person, was not eligible to hold such a licence: see s.81AA(1). The Tribunal then went on to find that, by reason of Mr Bond's control of the licensee companies, the sixth to ninth respondents were "no longer fit and proper persons to hold the licences".

4. The respondents commenced two proceedings under the ADJR Act. In the first proceeding, the first to fifth respondents were applicants; in the second, the sixth to ninth respondents were applicants. The respondents sought relief in respect of eighteen decisions, findings or rulings made by the Tribunal, of which eleven were described as "decisions" and seven were described as "conduct". The applications were heard by a Full Court of the Federal Court (Lockhart, Pincus and Gummow JJ.) exercising original jurisdiction. The Federal Court allowed the applications in part and set aside the decisions that Mr Bond would not be found to be a fit and proper person to hold a broadcasting licence and that the licensee companies were no longer fit and proper persons to hold their broadcasting licences. The Court concluded that the factual findings underlying the two decisions which it set aside were erroneous in law or fact but declined to set those findings aside.

5. The lengthy arguments presented in this Court primarily concern the final decisions of the Tribunal, but also raise questions concerning the way in which the decisions, findings and rulings made by the Tribunal were treated by the Federal Court. Moreover, the respondents rely upon additional arguments presented to the Federal Court but which that Court found it unnecessary to consider, and they also seek special leave to cross-appeal on further grounds.

6. Underlying the arguments presented to this Court is a fundamental question as to the limits of the jurisdiction of the Federal Court under the ADJR Act to review conclusions, including findings of fact, which constitute elements in the chain of reasoning leading to the ultimate administrative decision or order which is the subject of the application for review. If the Federal Court lacked the necessary jurisdiction to review a particular matter before it, then the applications for review should have failed to that extent and the appeal should succeed to the extent of any excess of jurisdiction. Accordingly, it will be necessary to consider the ambit of the Federal Court's jurisdiction to entertain applications for judicial review under the ADJR Act. However, it is convenient to sketch in outline the proceedings before the Tribunal, the decisions which it made, the applications to the Federal Court for review of those decisions and the judgment of the Federal Court. Then the alleged errors of the Tribunal can be identified with a view to determining whether the Federal Court had jurisdiction to review them and, to the extent that the Federal Court had such jurisdiction, whether it erred in the exercise of its jurisdiction.

7. The proceedings before the Tribunal had their genesis in a broadcast on 2 February 1983 on television station QTQ-9, as part of the "Today Tonight" programme, of material alleging abuse of office by Sir Johannes Bjelke-Petersen, then Premier of the State of Queensland. The Premier commenced proceedings for defamation in the Supreme Court of Queensland against QTL as licensee of the station. In January 1985, BCH, of which company Mr Bond was the Executive Chairman, acquired through its subsidiary Bond Media and other subsidiaries the share capital of QTL. Mr Bond became Chairman of the Board of QTL and remained so until 31 March 1987, when he ceased to be a director. On 1 April 1986 the defamation proceedings were settled by the payment of $400,000 to the Premier. The payment was made not by QTL but by its parent, BCH.

8. On 31 July and 1 August 1986, the Tribunal conducted a hearing as part of its inquiry into the renewal of the licence for QTQ-9 pursuant to s.86 of the Act, as it then stood. The Australian Labor Party was granted leave to appear as a party at the hearing. On 5 August 1986 the then Leader of the Opposition in the Queensland Parliament made allegations in the Parliament concerning the propriety of the defamation settlement. The Tribunal subsequently heard further evidence, including evidence from Mr Bond and Mr Aspinall. On 29 May 1987 the Tribunal announced its decision to renew the commercial television licence for QTQ-9, holding that QTL was a fit and proper person to hold the licence, that being the substantial issue which had arisen for decision at the inquiry.

9. There the matter would have rested but for an interview of Mr Bond by Ms Jana Wendt on 21 January 1988 on the television programme "A Current Affair".

In that interview Mr Bond said:

"(C)ertainly the Premier made it under no doubt that if we were going to continue to do business successfully in Queensland, then he expected that matter to be resolved."

After it became aware of this statement, the Tribunal instituted the inquiry under s.17C(1) to which this appeal relates.

10. During the course of the inquiry, other matters came to the attention of the Tribunal, which caused it to give notice from time to time of new issues to be considered. Only two of the issues which fell for consideration before the Tribunal are relevant to this appeal. The first relates to the settlement of the defamation action. The second relates to a telephone conversation between Mr Bond and Mr Leigh Hall, an executive of the AMP Society, on or about 11 May 1988, in which, it was alleged, Mr Bond threatened to use his television staff to gather information about the AMP Society, which was a business competitor of Mr Bond, and to expose the AMP Society by showing the results on television.

11. The notice of the s.17C(1) inquiry was issued pursuant to reg.9 of the Australian Broadcasting Tribunal (Inquiries) Regulations (Cth). The notice stated that the Tribunal had commenced an inquiry into issues relating to certain commercial radio and television licences "owned by companies associated with Mr Alan Bond". The licences were for those stations already mentioned and operated by the sixth to ninth respondents respectively. The notice went on to set out the original issues to be addressed at the inquiry.

They included the following questions:

"1. Whether anything connected with the payment of $400,000 in settlement of a defamation action by Sir Joh Bjelke-Petersen against Queensland Television Limited has any implications as to the suitability of companies associated with Mr Alan Bond to hold the above broadcasting licences. In this context it will be considered whether Mr Bond and companies associated with him are fit and proper persons to hold the above licences.

2. Whether it would be advisable in the public interest for the Tribunal to do any of the following:

(a)
suspend any of the said licences associated with Mr Bond;

(b)
revoke any of the said licences;

(c)
impose or vary conditions on any of the said licences."

Of the issues subsequently notified by the Tribunal, pursuant to reg.12, only two are presently relevant. They are:

"3A. Whether Mr Bond expressly or impliedly asserted to an executive of the AMP Society on or about 11 May 1988 that:-

(a)
staff of a television station or stations with which Mr Bond was associated were at his direction gathering material on certain share transactions entered into by the AMP Society;

(b)
the broadcasting of that material would be contrary to the interests of the AMP Society;

(c)
he would cause that material to be broadcast by a television station or stations with which he was associated unless the AMP Society ceased to act contrary to the interests of Mr Bond and of companies with which he was associated in relation to a proposed election for the board of directors of Bell Resources Ltd.

3B. Whether if made, anything connected with the making of these assertions has any implications as to the suitability of companies associated with Mr Alan Bond to hold the above broadcasting licences. In this context it will be considered whether Mr Bond and companies associated with him are fit and proper persons to hold the above licences."

Issues 1 and 3B raised the hypothetical question whether Mr Bond was a fit and proper person to hold a commercial broadcasting licence.

12. Issue 2 reflected the possible exercise by the Tribunal of its powers under ss.85 and 88(2) of the Act. By s.85(1) the Tribunal "may, during the currency of a licence ... vary or revoke any of the conditions of the licence (subject to an immaterial exception) or impose further conditions". Section 88(2) enables the Tribunal to suspend or revoke a commercial licence if it appears advisable in the public interest on any of three specified grounds. One such ground is that the licensee "is no longer a fit and proper person to hold the licence": s.88(2)(b)(i).

13. On 7 April 1989 the Tribunal published what it described as a "Decision on Facts". It contained five findings of fact which were largely subsumed in a summary of findings of fact made by the Tribunal on 26 June 1989. The Tribunal considered these findings to be relevant to the further findings, which it then made, that Mr Bond would not be found to be a fit and proper person to hold a broadcasting licence and that the respondent licensees were no longer fit and proper persons to hold their broadcasting licences.

Although the respondents sought review of the findings contained in the "Decision on Facts" published on 7 April, the relevant findings of fact were those repeated in the summary published on 26 June. For present purposes it will be sufficient if I set out the findings of fact as published on the later date. They were:

"1. Mr Bond agreed to pay the Premier of Queensland, Sir Joh Bjelke-Petersen, $400,000 to settle his defamation claim not believing that that sum was justified by that claim alone, but believing that if he did not settle at that figure the Premier might harm his interests in the State of Queensland.

2. Mr Bond sought to disguise the true amount agreed to be paid in the belief that a sum in excess of $50,000 could not survive public scrutiny.

3. Mr Bond deliberately gave misleading evidence to the Australian Broadcasting Tribunal in 1986 in relation to the events of January and February, 1986, and in relation to the nature of the meeting with Sir Joh Bjelke-Petersen on 17 February, 1986.

4. Mr Bond deliberately gave false evidence to the Australian Broadcasting Tribunal in this Inquiry in relation to his motivation for making the offer to Sir Joh Bjelke-Petersen at the meeting of 17 February, 1986 and in relation to the telex of 2 January, 1986 which was relevant to a determination of the date by which agreement had been reached between Mr Bond and Sir Joh Bjelke-Petersen.

5. Mr Bond threatened to use his TV staff to gather information on a business competitor (the AMP Society) and to expose the competitor by showing the results on television."

14. It is necessary to refer to a ruling apparently made by the Tribunal in the course of argument on 8 and 10 February 1989. Counsel assisting the inquiry submitted that the Tribunal should not consider whether the Premier of the State of Queensland had solicited a bribe from Mr Bond, or otherwise acted improperly, and that it would be inappropriate to make any finding at all as to the motives of the Premier or as to the proper inferences to be drawn from the evidence as to what the Premier did. The Tribunal appears to have accepted this submission and the ruling is another decision which the respondents sought to review.

15. Notwithstanding that ruling, the Tribunal found that Mr Bond's conduct in connection with the settlement was improper in that, having the belief mentioned in finding No. 1, his participation "does not exhibit an appreciation of the proper relationship between those with control of media interests and governments".

16. In relation to finding No. 3, the Tribunal said:

"We are clearly of the view that Mr Bond and Mr Aspinall misled the Tribunal in Brisbane as to the events of January/February (1986), and this deception was calculated to create an impression that the agreement (as to the settlement of the defamation proceedings) was finalised in a manner contrary to the reality as it was known to them both."

In the earlier inquiry Mr Bond and Mr Aspinall had given evidence that the agreement for settlement was reached in late March or early April 1986. In 1989 the Tribunal, after hearing evidence from a number of witnesses, including Mr Bond, Mr Aspinall and the Premier, found that the agreement was reached in December 1985 and that, on 2 January 1986, instructions were given by telex to the solicitors for QTL to complete the settlement. The Tribunal also found that, at a meeting on 17 February 1986, Mr Bond attempted to persuade the Premier to agree to a method of payment which would disguise the true amount of the settlement. Mr Bond proposed that $50,000 be paid to the Premier, the balance of $350,000 to be paid as a payment overseas related to assets, a loan without obligation to repay or an excessive payment for the sale of property. Neither the giving of the instructions on 2 January 1986 nor the attempt to disguise the amount of the payment was disclosed at the 1986 inquiry.

17. On 1 May 1989, counsel offered to the Tribunal certain undertakings on behalf of Mr Bond, Dallhold, BCH and Bond Media. The undertakings were offered on the footing that they would insulate the licensee companies from interference by, and association with, Mr Bond. The undertakings were offered without prejudice and without admissions, with a view to bringing the inquiry to an end without any adverse findings, orders or conditions. Counsel submitted to the Tribunal that, in the event that it should hold that it lacked power to accept the undertakings, then the Tribunal would have power under s.85 of the Act to impose corresponding conditions upon the relevant licences.

18. On 16 May 1989 the Tribunal decided that it did not have power to consider the proposed undertakings at that stage of the proceedings. The Tribunal also expressed the view that the imposition of conditions was the exercise of a power which was related to the making of a relevant finding under the Act so that the power could not be exercised in prospect. In the result the Tribunal concluded that it lacked power to impose conditions at that stage of the inquiry.

19. On an application under the ADJR Act the Federal Court then held that the Tribunal had power at that stage of the inquiry to impose conditions on the licences, even without finding that a licensee was no longer a fit and proper person to hold its licence, and also that the Tribunal had power at that stage of the inquiry to consider the undertakings and could take the undertakings into account in the exercise of its powers under the Act: Bond Media Limited v. Australian Broadcasting Tribunal (1989) 4 BR 35. On 26 June 1989, in the light of the Federal Court decision, the Tribunal gave consideration to the undertakings but did not accept them. Likewise, it refused to impose conditions. The Tribunal concluded that the Bond Media undertakings did not "address the concerns we have about Mr Bond's behaviour". Although it is by no means clear, it must be inferred that the Tribunal had the same reservations about the undertakings offered by Dallhold and BCH.

20. Of the first undertaking proffered by Mr Bond, the Tribunal said that it had "little confidence ... in the notion that Mr Bond would not ultimately prevail in any significant area where his overall interests were involved". The Tribunal said that the second and third undertakings offered by Mr Bond were not relevant. The Tribunal went on to say:

"Apart from the reasons so far set out, we consider that the scheme proposed does not address the fundamental issues in the findings we made. To highlight this by one example, we have found that Mr Bond deliberately misled this Inquiry. There is nothing in these proposals which addresses the fundamental nature of such a finding in relation to the fitness and propriety of the individual involved. In rejecting this proposal, we do not express any view about the appropriateness or otherwise of the imposition of conditions or acceptance of undertakings at some subsequent stage in the Inquiry."

The respondents sought review of both the decision to refuse to accept the undertakings and the decision not to impose conditions.

21. The eleven decisions of which the respondents sought review may be summarized as follows:

(1): The decision made on 26 June 1989 that Mr Bond would not be found to be a fit and proper person to hold a licence.
(2): The decision made on 26 June 1989 that the licensee companies were no longer fit and proper persons to hold their licences.
(3): The decision made on 26 June 1989 to refuse to consider at that stage of the inquiry the imposition of conditions on the licences.
(4): The decision made on 26 June 1989 to refuse to accept the undertakings.
(5): The decision made on 26 June 1989 that Mr Bond's agreement to pay the Premier $400,000 was improper.
(6): The decision made on 8 or 10 February 1989 that the Tribunal was unable to, and did not, make a finding about whether the Premier threatened to harm Mr Bond's interests in the State of Queensland.
(7) to (11): inclusive The respective decisions on 7 April 1989 to make the five findings of fact contained in the summary published on 26 June.

The seven acts of the Tribunal described as "conduct", of which the respondents sought review, are in essence the same matters of which the respondents sought review as "decisions", the seventh "conduct" comprising the making of the five findings of fact in the summary of 26 June.

AMBIT OF JUDICIAL REVIEW UNDER THE ADJR ACT

22. The ADJR Act provides, inter alia, for judicial review of "a decision to which this Act applies" (s.5) and "conduct (engaged in) for the purpose of making a decision to which this Act applies" (s.6).

23. The expression "decision to which this Act applies" is defined in s.3(1) to mean "a decision of an administrative character made ... (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1". There is no definition of the central term "decision".

24. Section 3(5) of the ADJR Act provides that "conduct engaged in for the purpose of making a decision" includes "the doing of any act or thing preparatory to the making of the decision, including the taking of evidence or the holding of an inquiry or investigation". Further, s.3(2) states that a reference to the making of a decision includes a reference to -

"(a): making, suspending, revoking or refusing to make an order, award or determination;
(b): giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c): issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d): imposing a condition or restriction;
(e): making a declaration, demand or requirement;
(f): retaining, or refusing to deliver up, an article; or
(g): doing or refusing to do any other act or thing".

25. It is not disputed in the present case that the Tribunal's decision that the respective licensees were no longer fit and proper persons to hold their licences was a "decision of an administrative character made ... under an enactment", namely, s.88(2)(b)(i) of the Act. However, the remaining "decisions" of the Tribunal are the subject of contention. These include the "decision" that Mr Bond would not be found to be a fit and proper person to hold a licence.

(1) Meaning of "Decision"

26. The definition in s.3(1) does not elucidate significantly the meaning of the word "decision" as it is used in the ADJR Act. It is clear that a "decision to which this Act applies" must be a decision of an administrative character, that it may be made in the exercise of a discretion, and that it must be made under an enactment. But these characteristics provide little guidance as to the meaning of the word "decision" upon which the definition in s.3(1) is based.

27. The word has a variety of potential meanings. As Deane J. noted in Director-General of Social Services v. Chaney (1980) 47 FLR 80 , at p 100; 31 ALR 571, at p 590, in the context of judicial or administrative proceedings it ordinarily refers to an announced or published ruling or adjudication. In such a context, the word may signify a determination of any question of substance or procedure or, more narrowly, a determination effectively resolving an actual substantive issue. Even if it has that more limited meaning, the word can refer to a determination whether final or intermediate or, more narrowly again, a determination which effectively disposes of the matter in hand: see Chaney, at p 100; p 590 of ALR.

28. In the context of judicial proceedings, the Privy Council has accepted that "the natural, obvious and prima-facie meaning of the word 'decision' is decision of the suit by the Court": see Rajah Tasadduq Rasul Khan v. Manik Chand (1902) LR 30 Ind App 35, at p 39; The Commonwealth v. Bank of N.S.W. (1949) 79 CLR 497 , at p 625; [1950] AC 235 , at p 294. But here the relevant context is not that of a decision reached in curial or judicial proceedings, so that the meaning must be determined by reference to the text, scope and purpose of the statute itself.

29. The fact that the ADJR Act is a remedial statute providing for a review of administrative action rather than some form of appeal from final decisions disposing of issues between parties indicates that no narrow view should be taken of the word "decision". In this respect it is significant that s.5 does not speak of "final decision". It is also significant that the jurisdiction of the Federal Court to grant declaratory relief is not confined to granting relief in respect of ultimate decisions. The jurisdiction extends to questions in issue in pending proceedings: cf. Forster v. Jododex Aust. Pty. Ltd. (1972) 127 CLR 421 , per Gibbs J. at p 438. The existence of this jurisdiction, which antedated the ADJR Act, suggests that the concept of a reviewable decision is not limited to a final decision disposing of the controversy between the parties.

30. Nonetheless other considerations point to the word having a relatively limited field of operation. First, the reference in the definition in s.3(1) to "a decision of an administrative character made ... under an enactment" indicates that a reviewable decision is a decision which a statute requires or authorizes rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision. Secondly, the examples of decision listed in the extended definition contained in s.3(2) are also indicative of a decision having the character or quality of finality, an outcome reflecting something in the nature of a determination of an application, inquiry or dispute or, in the words of Deane J., "a determination effectively resolving an actual substantive issue". Thirdly, s.3(3), in extending the concept of "decision" to include "the making of a report or recommendation before a decision is made in the exercise of a power", to that extent qualifies the characteristic of finality. Such a provision would have been unnecessary had the Parliament intended that "decision" comprehend every decision, or every substantive decision, made in the course of reaching a conclusive determination. Finally, s.3(5) suggests that acts done preparatory to the making of a "decision" are not to be regarded as constituting "decisions" for, if they were, there would be little, if any, point in providing for judicial review of "conduct" as well as of a "decision".

31. The relevant policy considerations are competing. On the one hand, the purposes of the ADJR Act are to allow persons aggrieved by the administrative decision-making processes of government a convenient and effective means of redress and to enhance those processes. On the other hand, in so far as the ambit of the concept of "decision" is extended, there is a greater risk that the efficient administration of government will be impaired. Although Bowen C.J. and Lockhart J. appeared to emphasize the first of these considerations in Australian National University v. Burns (1982) 64 FLR 166 , at p 172; 43 ALR 25, at p 30, there comes a point when the second must prevail, as their Honours implicitly acknowledged. To interpret "decision" in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process.

32. The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewable "decision" is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.

33. Another essential quality of a reviewable decision is that it be a substantive determination. With the exception of s.3(2)(g), the instances of decision mentioned in s.3(2) are all substantive in character. Moreover, the provisions in sub-ss.(1), (2), (3) and (5) of s.3 point to a substantive determination. In this context the reference in s.3(2)(g) to "doing or refusing to do any other act or thing" (emphasis added) should be read as referring to the exercise or refusal to exercise a substantive power. I do not perceive in s.16(1)(b) or in par.(e) of Sched.1 or par.(a) of Sched.2 to the ADJR Act any contrary implication. These exclusions from the ADJR Act or from s.13 appear to have been introduced for more abundant caution and it would be unwise to take too much from them.

34. If "decision" were to embrace procedural determinations, then there would be little scope for review of "conduct", a concept which appears to be essentially procedural in character. To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality. Then it is the "conduct" of the hearing in refusing an adjournment that is the subject of review. To treat the refusal of the adjournment in this way is more consistent with the concept of "conduct" than with the notion of "decision under an enactment".

35. The interpretation of "decision" which I favour is not as broad as that preferred by the Federal Court in Lamb v. Moss (1983) 76 FLR 296 ; 49 ALR 533 . There the Full Court of the Federal Court (Bowen C.J., Sheppard and Fitzgerald JJ.), after reviewing the authorities, which the Court said revealed "some inconsistency", stated (at p 318; p 556 of ALR):

"In our opinion, there is no limitation, implied or otherwise, which restricts the class of decision which may be reviewed to decisions which finally determine rights or obligations or which may be said to have an ultimate and operative effect."

My view is more in accord with the tentative opinion expressed earlier by Ellicott J. in Ross v. Costigan (1982) 59 FLR 184 ; 41 ALR 319 when he said (at p 197; p 331 of ALR) that "it may well be that the word 'decision' means an ultimate or operative determination not a mere expression of opinion or a statement which can of itself have no effect on a person". However, I would not wish for myself to place emphasis on the words "of itself" in this statement. To say that a reviewable decision is an ultimate or operative determination does not mean that antecedent conclusions or findings which contribute to the ultimate or operative decision are beyond reach. Review of an ultimate or operative decision on permissible grounds will expose for consideration the reasons which are given for the making of the decision and the processes by which it is made.

36. Lest it should be thought otherwise, I should say that, to the extent in Lamb v. Moss that the magistrate decided that a prima facie case had been established and that he would proceed with the committal proceedings, a reviewable decision had been made. That decision was one for which s.41(2) of the Justices Act 1902 (N.S.W.) specifically provided. The decision resolved an important substantive issue to be determined before the ultimate decision could be made under s.41(6) of that Act whether to commit the defendant for trial or discharge him from custody.

37. I agree with the Full Court in Lamb v. Moss (at p 312; p 550 of ALR) in thinking that the court has a discretion whether to grant or refuse relief by way of judicial review under the ADJR Act. The references in s.16 of the ADJR Act to "in its discretion" are eloquent on that score. Further, I agree that only in most exceptional circumstances would it be appropriate to grant relief in respect of a decision given by a magistrate in committal proceedings: see at p 326; p 564 of ALR. The delays consequent upon fragmentation of the criminal process are so disadvantageous that they should be avoided unless the grant of relief by way of judicial review can clearly be seen to produce a discernible benefit: Yates v. Wilson (1989) 64 ALJR 140.

(2) Was There a Reviewable Decision?

(a) The Findings that Mr Bond would not be Found to be a Fit and Proper Person and that the Licensees were no longer Fit and Proper Persons

38. It follows from my interpretation of the word "decision" that the Federal Court had jurisdiction under s.3(1) of the ADJR Act to review the Tribunal's finding that the licensees were no longer fit and proper persons to hold their broadcasting licences under the Act. Although that decision was an intermediate determination made on the way to deciding whether to revoke or suspend the licences or to impose conditions on them, it was a decision on a matter of substance for which the statute provided as an essential preliminary to the making of the ultimate decision.

39. On the other hand, the Tribunal's conclusion that Mr Bond would not be found to be a fit and proper person to hold a licence was not a determination for which the Act provided and was no more than a step in the Tribunal's reasoning on the way to the finding that the licensees were no longer fit and proper persons to hold their licences. True it was an essential step in the reasoning by which the Tribunal chose to support its determination concerning the licensees, but this circumstance is not enough to invest the conclusion with the characteristics which would qualify it as a reviewable decision. I would reject the notion accepted in the Federal Court that the finding adverse to Mr Bond was a "decision ... not authorized by" the Act within the meaning of s.5(1)(d). For the reasons already given, the finding was not relevantly a "decision".

(b) The Consequences of Concluding that the Finding Adverse to the Licensees was a Reviewable Decision

40. My conclusion that the decision that the licensees were no longer fit and proper persons is a reviewable decision makes it unnecessary to decide whether all the other decisions and the conduct challenged by the respondents are reviewable. This is because the respondents are entitled to challenge that decision for error of law: see s.5(1)(f). On this footing, the respondents were entitled to seek review of that decision on the grounds that the Tribunal erred in law: (a) in construing and applying s.88(2)(b)(i) of the Act; and (b) in deciding that it was unable to, and did not, make a finding about whether the Premier threatened to harm Mr Bond's interests in the State of Queensland. However, it will be necessary to decide whether the findings of fact are reviewable decisions if the respondents are unable to reach them by impugning the reviewable decision for error of law. I shall return shortly to this question.

41. In passing, before considering the status of the findings of fact, I should state that the Tribunal's rejection of the undertakings and its refusal to impose conditions on the licences may well have constituted independently reviewable decisions falling within s.3(2)(g) of the ADJR Act on the footing that they were "decisions" not to exercise a substantive power, as the Tribunal had power to accept undertakings (Bond Media Limited v. Australian Broadcasting Tribunal) and to impose conditions : s.88(2). On the other hand, it should be noted that the refusal to impose conditions did not relate to specific conditions. However, I propose to review the Tribunal's rejection of the undertakings and its refusal to impose conditions as part of the review of the Tribunal's treatment of s.88(2)(b)(i), itself an element in the review of the adverse finding with respect to the fitness of the licensees, although, strictly speaking, the rejection of the undertakings and the refusal to impose conditions are open to review on the ground contained in s.5(2)(g) of the ADJR Act (upon which the respondents rely) only if they are reviewable decisions.

For the sake of argument, I shall assume that they are reviewable decisions.

(c) The Findings of Fact

42. The next important question of principle is whether a finding of fact can amount to a reviewable decision and, if so, in what circumstances. The answer to the first part of this question does not present much difficulty. If the statute requires or authorizes the decision-maker to determine an issue of fact as an essential preliminary to the taking of ultimate action or the making of an ultimate order, then it would follow from what has already been said that the determination of the issue of fact would be a reviewable decision. The decision that the licensees were no longer fit and proper persons to hold their licences was just such a determination.

43. However, in ordinary circumstances, a finding of fact, including an inference drawn from primary facts, will not constitute a reviewable decision because it will be no more than a step along the way to an ultimate determination. Of course an ultimate determination which depends upon a finding of fact vitiated by error of law or made without evidence is reviewable: see s.5(1)(f) and (h). In such a case the finding of fact may be challenged as an element in the review of the ultimate determination. But the point remains that ordinarily a finding of fact will not be susceptible to review independently of the ultimate decision.

44. Powerful considerations support the correctness of this view. The Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") provides specifically for review on the merits by the Administrative Appeals Tribunal. It is scarcely to be supposed that the Parliament, in so providing, nevertheless intended to invest the Federal Court with a similar jurisdiction under the ADJR Act, for that would be the effect of that Act if it were to confer jurisdiction to review findings of fact generally. Indeed, the concept of judicial review which finds literal expression in the title of the ADJR Act and in its operative provisions tells against the existence of such a wide jurisdiction. The expression "judicial review", when applied to the traditional review functions of the superior courts in our system of justice, exercisable by means of the prerogative writs and the grant of declaratory relief and injunction, ordinarily does not extend to findings of fact as such.

To expose all findings of fact, or the generality of them, to judicial review would expose the steps in administrative decision-making to comprehensive review by the courts and thus bring about a radical change in the relationship between the executive and judicial branches of government. Amongst other things, such a change would bring in its train difficult questions concerning the extent to which the courts should take account of policy considerations when reviewing the making of findings of fact and the drawing of inferences of fact.

45. It follows that in my opinion the Federal Court did not have jurisdiction to review the six findings of fact (Nos 5 and 7-11 inclusive in my earlier summary) of which the respondents sought review on the footing that they were reviewable decisions.

(3) Meaning of "Conduct"

46. The distinction between reviewable decisions and conduct engaged in for the purpose of making such a decision is somewhat elusive. However, once it is accepted that "decision" connotes a determination for which provision is made by or under a statute, one that generally is substantive, final and operative, the place of "conduct" in the statutory scheme of things becomes reasonably clear. In its setting in s.6 the word "conduct" points to action taken, rather than a decision made, for the purpose of making a reviewable decision. In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character.

Accordingly, s.3(5) refers to two examples of conduct which are clearly of that class, namely, "the taking of evidence or the holding of an inquiry or investigation". It would be strange indeed if "conduct" were to extend generally to unreviewable decisions which are in themselves no more than steps in the deliberative or reasoning process.

47. Accordingly, there is a clear distinction between a "decision" and "conduct" engaged in for the purpose of making a decision. A challenge to conduct is an attack upon the proceedings engaged in before the making of the decision. It is not a challenge to decisions made as part of the decision-making process except in the sense that if the decisions are procedural in character they will precede the conduct which is under challenge. In relation to conduct, the complaint is that the process of decision-making was flawed; in relation to a decision, the complaint is that the actual decision was erroneous. To give an example, the continuation of proceedings in such a way as to involve a denial of natural justice would amount to "conduct". That is not to deny that the final determination of the proceedings would constitute a decision reviewable for denial of natural justice.

48. So, in Chan v. Minister for Immigration and Ethnic Affairs (1989) 63 ALJR 561; 87 ALR 412 , it was possible to review the decision of the delegate for error of law on the basis either that it was a reviewable decision or that the inquiry preceding the making of the decision was reviewable conduct. But it was not precise in that case to describe the decision of the delegate as reviewable conduct, because the decision was not a matter of procedure.

Further, in truth it was the decision, not the conduct engaged in for the purpose of making the decision, which was the subject of challenge, and the decision of the delegate can have been reviewable as an improper exercise of power only because the decision itself was reviewable; s.6(1)(e) would not permit the review of conduct as an improper exercise of power.

49. This view of the relationship between a "decision" and "conduct" is supported by an examination of the provisions of the ADJR Act. Section 6(1) provides for a direct challenge to conduct on procedural grounds only. The other grounds of challenge set out in the sub-section go to the invalidity of the proposed decision to which the conduct relates. Then, it is the proposed decision rather than the conduct which is challenged; s.6 merely allows the challenge to take place before the making of the proposed decision. In other instances, conduct may only be impugned upon procedural grounds: see, for example, s.6(1)(a) and (b).

50. Some reference must be made to s.6(1)(f) which speaks of an error of law being "committed in the course of the conduct". On its face, this provision permits of review of any error of law made, for example, in an inquiry held for the purpose of making a "decision". Such a review of conduct might entail a challenge to a substantive, as well as a procedural, error of law. However, this ground of review of "conduct" does little to expand the "error of law" ground contained in s.5(1)(f) relating to errors of law "involved" in the decision. Ordinarily, if not always, an error of law made in the course of conduct engaged in for the purpose of making a decision would be an error of law involved in the decision itself: see, for example, Chan v. Minister for Immigration. This ground of review does not detract, therefore, from the argument that the ADJR Act maintains a dichotomy between reviewable decisions and reviewable conduct.

51. It follows, therefore, that substantive decisions, findings of fact and inferences from findings of fact generally are not capable of review as "conduct" unless what is alleged is some breach of procedural requirements in the course of the conduct involved in reaching the relevant conclusion, although it is possible that they may give rise to subsequent conduct which is reviewable.

(4) Was there Reviewable Conduct?

52. The finding that Mr Bond would not be found to be a fit and proper person to hold a broadcasting licence was not procedural and was no more than a step in the Tribunal's process of reasoning, and so the finding did not amount to "conduct". For similar reasons the making of the findings of fact did not amount to reviewable conduct.

53. Of all the matters relied upon by the respondents as reviewable conduct, leaving aside any of those matters reviewable as a decision or attacked as elements in a reviewable decision, only the ruling that the Tribunal was unable to, and did not, make a finding about whether the Premier threatened to harm Mr Bond's interests in Queensland could conceivably give rise to reviewable conduct. It is, however, unnecessary to examine this question independently, as the correctness of the ruling as a matter of law can be considered as an element in the challenge to the decision that the licensees were no longer fit and proper persons to hold their licences.

REVIEW OF THE DECISION THAT THE LICENSEE COMPANIES WERE NO LONGER FIT AND PROPER PERSONS TO HOLD THEIR LICENCES

54. It is convenient, before commencing an examination of the reviewable decision that the licensees were no longer fit and proper persons to hold their licences, to summarize those grounds of challenge raised by the respondents which fall within the scope of the jurisdictional limits of the ADJR Act. First, the respondents contend that the Tribunal misconstrued s.88(2)(b)(i) of the Act. Part of that contention relates to the Tribunal's refusal to accept the undertakings or to impose conditions. Another part concerns the taking into account of alleged irrelevant considerations and the alleged failure to take into account relevant considerations. Secondly, the Tribunal's ruling that it could not make findings as to the Premier's conduct is challenged as an error of law involved in the making of the reviewable decision. Thirdly, the respondents contend that the circumstances surrounding the defamation settlement were irrelevant to the making of the reviewable decision. Fourthly, the findings of fact are challenged as, it is said, errors of law involved in the reviewable decision. The crucial findings in this context are the finding as to Mr Bond's motivation in making the defamation settlement (finding No. 1, attacked through the second challenge mentioned above), the finding that Mr Bond deliberately misled the 1986 inquiry (finding No. 3), and the finding that Mr Bond threatened to use his television staff to gather information and to expose a competitor (finding No. 5). Those are the crucial findings because, unless the challenge to finding No. 1 is sustained, then the challenges to the subsidiary findings relating to the defamation settlement (findings Nos 2 and 4, along with the finding regarding improper conduct described as the fifth "decision") must fail. Unless the challenge to finding No. 3 is sustained, the challenge to finding No. 5 must fail, since finding No. 5 was based largely upon issues of credit relating to finding No. 3.

(1) Construction of s.88(2)(b)(i)

(a) The Decision of the Federal Court so far as it Related to s.88(2)(b)(i)

55. The Federal Court held that the Tribunal's decision "involved" two errors of law and so was subject to review under s.5(1)(f). The Federal Court concluded, first, that "the Tribunal fell into a serious error of law in construing and applying sub-s.88(2) of the Act". As their Honours put it, the Tribunal "went astray by equating the fitness and propriety of Mr Bond (or lack of it) with that of the licensees" and then failing "to look at other material before it which required consideration if its decision as to the supervening lack of fitness and propriety of the licensees was not to be regarded as perverse". The "other material" was in the form of evidence (a) that the boards of the licensee companies operated in an entirely proper manner and discharged their duties in accordance with their obligations, and (b) that Mr Bond did not interfere with the performance by directors and executives of the licensee companies of their duties and responsibilities. The Tribunal did not refer to this evidence in its reasons.

56. Further, the Court considered that the Tribunal's decision that the undertakings did not address the fundamental issues in the finding as to the fitness and propriety of Mr Bond was misconceived. Their Honours considered that the undertakings went to the fitness of the licensees in that, had the undertakings come into effect, Mr Bond would have distanced himself from the licensees and he would have been distanced from them by the interposition of Dallhold, BCH and Bond Media. The Court also pointed to the Tribunal's failure to consider the past and continuing compliance by the licensee companies with their obligations under the Act.

57. Thus, the Court concluded that the Tribunal took too narrow a view of the relevant considerations to be taken into account in addressing the question for determination under s.88(2). The error of law thus lay "in construing what was involved if, within the meaning of sub-s.88(2) of the Act, (the Tribunal) was to be satisfied that each of the licensees was no longer a fit and proper person to hold its licence or licences".

(b) The Decision of the Tribunal so far as it Related to s.88(2)(b)(i)

58. Having read and re-read the Tribunal's statement of its reasons for making its findings adverse to Mr Bond and the licensee companies, I have come to the conclusion that the Full Court has misread or misunderstood some critical comments made by the Tribunal. The Tribunal said:

"Mr Bond remains, by virtue of his association with the licensee companies, the only relevant individual in the sense that consideration of his fitness and propriety is relevant to the question of fitness and propriety of the licensees."

This statement follows immediately after a paragraph in which the Tribunal refers specifically to findings made in its Decision on Facts of 7 April 1989 in relation to particular individuals. Such findings were most adverse to Mr Bond and Mr Aspinall. There were also findings in relation to other senior executives of the Bond companies. The paragraph to which I have referred goes on to say in effect that, notwithstanding the findings made against Mr Aspinall, his conduct was not relevant to the Tribunal's consideration of the fitness of the licensee companies.

59. Read in this context, the following statement that Mr Bond was "the only relevant individual in the sense that consideration of his fitness and propriety is relevant to the question of fitness and propriety of the licensees" amounts to no more than a conclusion that, if the licensees were to be found unfit by reference to the unfitness of persons associated with the licensees, Mr Bond's unfitness alone was relevant. Unfortunately the Federal Court read the statement as if it were an assertion that the meritorious qualities of persons associated with the licensee companies other than Mr Bond were not relevant to the issue of fitness of those companies. Plainly it was not such an assertion.

60. True it is that the Tribunal did not refer to or expressly take into account the character, reputation and performance of other directors of the respondent companies, especially the licensee companies. Nor did the Tribunal refer to, or expressly take into account, the history of compliance by the licensee companies and their directors with their obligations under the Act. However, it is perfectly clear that the Tribunal was not proceeding on the footing that these matters were irrelevant as a matter of law to the issue of the licensees' fitness. What the Tribunal found was that, by reason of his capacity to control the composition of the boards of directors of the licensee companies and his position as a key executive within the corporate structure, enabling him "to initiate and involve himself in management decisions which affect(ed) the broadcasting activities within the group", Mr Bond's unfitness compelled the conclusion as a matter of fact that each of the licensees was unfit.

61. That this is so emerges from the Tribunal's reasons for refusing to accept the undertakings at that stage of the proceedings. The Tribunal summarized the undertakings offered by Mr Bond in this way:

"Mr Bond undertakes to ensure within a specified time frame that a majority of the directors of Bond Media Ltd, as well as its Chairman, are persons who are not otherwise associated with him, Dallhold Investments Pty Ltd or Bond Corporation Holdings Ltd. He also undertakes not to use for his purposes or for any commercial purpose the staff or any other resources of Bond Media licensees, other than on usual commercial terms. Finally, he undertakes not to interfere or seek to interfere with the selection and/or presentation of any news and current affairs programs of any of the Bond Media licensees or cause Bond Media to breach the Tribunal's Program Standards."

The Tribunal dealt with Mr Bond's undertakings in the following paragraphs:

"The first undertaking does not significantly effect (sic) the control Mr Bond has by virtue of his shareholding. The lack of association with Mr Bond and the two corporations he controls with the proposed restructured board does not avoid the fact that Mr Bond by virtue of his shareholding remains in control of the company. Apart from this we have little confidence in view of the evidence we have heard in this Inquiry in the notion that Mr Bond would not ultimately prevail in any significant area where his overall interests were involved.

In relation to the second undertaking, our findings went only to Mr Bond's threat to take such action ... This undertaking, in terms of addressing that issue, is not relevant.

There being no finding against Mr Bond of interfering in the manner envisaged in the final undertaking, it is likewise not relevant."

62. In the face of these expressed reasons for rejecting the undertakings, it is not to the point to suggest, as the Federal Court did, that the Tribunal was mistaken in treating the undertakings as going only to the fitness of Mr Bond and as having no relevance as a matter of law to the fitness of the licensees. Their Honours seized upon the Tribunal's statement, "These undertakings do not address the concerns we have about Mr Bond's behaviour", as if it evidenced the acceptance and application of an immutable proposition of law that once the key executive was shown to be unfit then the licensee itself must necessarily be unfit. That was not so. I deal with the undertakings and the refusal to impose conditions at greater length below.

(c) The Proper Construction and Application of s.88(2)(b)(i)

63. The Federal Court appears to have interpreted s.88(2)(b)(i) in such a way that the Tribunal can never be justified in finding that a licensee is no longer a fit and proper person to hold its licence by reference alone to a finding that the person who is in a position to control the composition of its board of directors would be unfit to hold the licence. However, for the reasons already given, it is not a proposition on which the Tribunal's finding with respect to the licensees depends.

64. In the light of the contest which has taken place in this case, it is appropriate that I should say something about the width of the discretion given to the Tribunal by s.88(2)(b)(i). First, the Tribunal must approach an inquiry, which has in contemplation the possible exercise of the power of suspension or revocation of a commercial licence on the ground that the licensee is no longer a fit and proper person to hold the licence, on the footing that the licensee was found to be fit and proper when the licence was granted. Thus, the reference to "no longer" looks generally to some alteration in the perception of the fitness and propriety of the licensee occurring since the licence was granted or to some supervening event or circumstance relating to such fitness and propriety. The interpretation of the expression "no longer" can conveniently be considered in more detail in connection with the relevance of the defamation settlement. Secondly, the statutory concept of "fit and proper person to hold the licence", which is undefined, takes account of qualities and characteristics of the licensee apart from the matters mentioned in s.88(2)(a), (b)(ii) and (c). Thus, the concept comprehends matters other than the financial, technical and management capabilities necessary to provide an adequate and comprehensive service, lack of which is a ground for suspension or revocation under s.88(2)(b)(ii). Thirdly, though fitness and propriety are necessarily related to the holding of the licensee's commercial licence and to the provision of a broadcasting service pursuant to that licence (see Re New Broadcasting Ltd. (1987) 12 ALD 1 , at pp 8-9), the concept should not be narrowly construed or confined. It must extend to any aspect of fitness and propriety that is relevant to the public interest, because the Tribunal's power to suspend or revoke commercial licences is only exercisable "if it appears to the Tribunal that it is advisable in the public interest to do so, having regard only to the ... matters or circumstances" set out in pars (a), (b) and (c) of s.88(2).

65. Some indication of the breadth of the content of the concept may also be gathered from the fact that it is a purpose of the Act to ensure that commercial broadcasting is conducted in the interests of the public: Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty. Ltd. (1979) 144 CLR 45 , at p 53. The provisions of the Act dealing with the grant, renewal, suspension and revocation of licences, the limitations on the ownership of shares, the determination of programme standards and the extensive role given to the Tribunal in connection with these matters are all designed to secure the attainment of that purpose. Commercial broadcasting is a very important medium in the communication of information and ideas. Moreover, a commercial broadcasting licence is a valuable privilege which confers on the licensee the capacity to influence public opinion and public values. For this reason, if for no other, a licensee has a responsibility to exercise the power conferred by the licence with a due regard to proper standards of conduct and a responsibility not to abuse the privilege which it enjoys. Possession of a licence or the exercise of the privilege which it confers has been described "as in the nature of a public trust for the benefit of all members of our society": see the Australian Report of the Royal Commission on Television, (1954), at p 144; Second Reading Speech on the Broadcasting and Television Bill 1956 (Cth) by the Honourable C.W. Davidson, Postmaster-General, House of Representatives Parliamentary Debates (Hansard), 19 April 1956, p 1536.

66. A licensee which is a fit and proper person in the context of s.88(2)(b)(i) must have an appreciation of those responsibilities and must discharge them. Conversely, a licensee which lacks a proper appreciation of those responsibilities or does not discharge them is not, or may be adjudged not to be, a fit and proper person.

67. In this case, the Tribunal was bound to satisfy itself that QTL or one of the other three licensees was no longer a fit and proper person before it could exercise the statutory powers under s.88. The Tribunal arrived at that state of satisfaction by a process of reasoning based on Mr Bond's serious misconduct in various respects which involved one licensee, QTL, in serious misconduct. Mr Bond's relationship with the licensee companies was such that, in the judgment of the Tribunal, they were not insulated from his participation in decision-making and thus from the possible impact of his malign influence.

68. The Federal Court seems to have thought that, no matter how great the capacity for control of a licensee exercisable by a person with relevantly undesirable propensities, s.88(2)(b)(i) does not authorize the making, without regard to the character and performance of the board of directors of the licensee and of those persons who comprise its management, of a finding that the licensee is no longer a fit and proper person to hold its licence. This proposition cannot be sustained either as a matter of law or by way of interpretation of s.88(2). Obviously there is an array of potential fact situations. The degree of an individual's capacity for control may not be so great as to warrant an inference that his character should be identified automatically with that of the licensee; in that event it would be necessary to look to the character and performance of the directors and the management. In another case, where the capacity of the individual for control of the licensee is great, the inference may be justified without examining the character and performance of the directors and the management of the licensee.

Especially is this so when it is established that the person having the capacity to control participates in the decision-making processes of a licensee and procures the making of reprehensible decisions which are designed to enhance and protect his own interests. The present case is just such a case and it has the added and important element that the licensees are part of an important group of companies owning television and radio licences, with a large stake in the Australian communications industry, Mr Bond having the capacity to control them through his capacity to control the composition of the board of directors of each company in the group.

69. The respondents suggested further grounds upon which it was said that the Tribunal had erred. First, it was contended that the Tribunal had applied a wrong test by considering the worthiness of the licensees to hold the privileges and benefits of a licence, rather than their fitness and propriety as licensees. That submission must fail, since, as I have explained, the worthiness of a person to receive the benefits of a particular licence is directly relevant to the concept of fitness and propriety as it relates to the licence in question. The respondents also contended that the presence of provisions elsewhere in the Act expressly requiring consideration of the fitness and propriety of persons other than a licensee is an indication that such a consideration was regarded by the legislature as irrelevant in the context of s.88(2): see ss.92F and 92FAA. But if those sections do provide such an indication, it is not sufficient to displace the general approach to the construction of s.88(2) which I have explained.

70. It follows that the Federal Court was itself in error in two respects. First, it erred in placing an incorrect interpretation on the reasons given by the Tribunal for making its finding that the licensee companies were no longer fit and proper persons to hold their commercial licences. Accordingly, there was no basis for the first error of law which the Federal Court thought that it had detected - the misconstruction and misapplication of s.88(2)(b)(i). Secondly, the Federal Court was in error in construing s.88(2)(b)(i) as it did.

(d) The Rejection of the Undertakings

71. Once it is accepted that the Tribunal held that the undertakings did not address its concerns about Mr Bond's behaviour for the reasons which I explained earlier and, further, that the Tribunal had little confidence that Mr Bond would not prevail "in any significant area where his overall interests were involved", there is no ground for concluding that the rejection of the undertakings involved any error of law or that the Tribunal, in rejecting the undertakings, failed to take a relevant consideration into account (s.5(1)(e) and (2)(b) of the ADJR Act), or that the rejection was "so unreasonable that no reasonable person could have so exercised the (relevant) power": s.5(1)(e) and (2)(g).

(e) Refusal to Impose Conditions

72. The Tribunal declined to impose conditions before making its determination under s.88(2)(b)(i); in declining so to do the Tribunal did not have specific conditions under consideration. It was not suggested that the Tribunal was bound to impose conditions before proceeding to a determination under s.88(2)(b)(i), only that the Tribunal had a discretion and that the exercise of this discretion was "so unreasonable that no reasonable person could have so exercised the (relevant) power": see s.5(2)(g).

73. It is important to note that the Tribunal may exercise its power to suspend or revoke a licence, if it considers it advisable to do so in the public interest, once it is satisfied of one of the matters mentioned in s.88(2)(a), (b) and (c). Paragraph (c) refers to non-compliance with a condition. It follows that the Tribunal may exercise its powers under the section if it is satisfied that a condition of the licence has been broken, without considering first whether it should impose a further condition on the licence. Correspondingly, the Tribunal may exercise its powers if it is satisfied of any of the matters mentioned in pars (a), (b)(i) and (b)(ii) without considering first whether it will impose conditions.

74. It was for the Tribunal to decide whether it would consider the imposition of conditions before proceeding to a determination of the fitness and propriety issue. As a matter of logic and common sense there is much to be said in favour of the course taken by the Tribunal, that is, deciding, first, the fitness and propriety issue and then, in the light of that decision, deciding whether the public interest called for the imposition of conditions, suspension, revocation or some other action. A determination of what would be appropriate and sufficient conditions could not sensibly be made in the circumstances of this case until a finding was made as to the fitness and propriety of the licensees.

75. In the result the Tribunal's refusal to impose conditions on the licences at the stage of the proceedings when it was asked to consider doing so was not unreasonable within the meaning of s.5(2)(g) of the ADJR Act.

(2) The Decision of the Federal Court so far as it Related to the Tribunal's Alleged Failure to Make Findings as to the Premier's Conduct

76. The Federal Court held that the Tribunal sought to determine the nature of the transaction involving the settlement of the defamation action without inquiring into the purpose or motives of the Premier in reaching the settlement and that this was an impermissible approach to the question. Their Honours said:

"It was impossible both in logic and common sense for the Tribunal to determine the nature of the transaction involved in the settlement of the defamation claim without making findings as to what was said and done by each person involved in the settlement negotiations on both sides of the record. By taking the course which it did, the Tribunal necessarily prevented itself from making any finding to the effect that the sum of $400,000 was extorted or solicited by the Premier."

77. As the decision of the Tribunal does not state the Tribunal's ruling on this matter, let alone give reasons for that ruling, it is necessary to refer to the course of proceedings before the Tribunal. In the course of argument, after evidence had been given by the witnesses including the Premier, Mr Burbidge Q.C., counsel assisting the inquiry, submitted that, as the Premier was not amenable to the jurisdiction of the Tribunal in the sense that it could not pronounce formal findings against him, the Tribunal should not make any finding as to the motives of the Premier or as to the proper inferences to be drawn from what he did. Mr Shand Q.C. responded to this submission by contending that, if the Tribunal were to accept the submission, then it would disable itself from determining the nature of the transaction and make it impossible to establish any foundation for forming a judgment about Mr Bond's conduct. Ultimately the Tribunal, seemingly accepting Mr Burbidge's submission, ruled that while it could "accept the facts of what went on", it could not move "to an adverse finding against" the Premier. The Chairman made various statements about the effect of the ruling which were by no means uniformly consistent. At one stage the Tribunal confirmed that it could make findings only by reference to what Mr Bond thought the transaction was.

78. If the Tribunal approached the matter on the footing that, because the Premier was not amenable to its jurisdiction, it could not make findings as to the nature of the transaction - and it is by no means clear that the Tribunal accepted that limitation upon its function - then the Tribunal was in error and that error was an error of law in that the Tribunal took too narrow a view of its own jurisdiction or powers. On the assumption that there was such an error of law, the question is whether that error vitiated the decision that the licensees were no longer fit and proper persons; did that decision involve an error of law within the meaning of s.5(1)(f) of the ADJR Act?

79. The argument for the respondents, reflecting the view of the Federal Court, is that the error vitiated the findings of fact made in relation to the settlement of the defamation action and, because the findings with respect to Mr Bond's fitness and that of the licensees stemmed in large measure from the findings made in relation to the defamation settlement, the ultimate decision itself involved an error of law. More particularly, the respondents contend that, unless findings were made as to the nature of the transaction and what was said and done, it was impossible to make a judgment about the propriety of Mr Bond's conduct. This, it is urged, resulted in the Tribunal's failure to take into account a relevant consideration (s.5(2)(b)) - the nature of the transaction - and a denial of natural justice (s.5(1)(a)).

80. A decision does not "involve" an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different. The critical question on this aspect of the case is whether, but for the alleged error of law on which the respondents rely, the decision might have been different by reason of the possibility that the Tribunal would not have made the findings of fact relating to the settlement in the terms in which they were made.

81. The respondents submitted by way of illustration that, had the Tribunal found that the true nature of the transaction was that the Premier threatened Mr Bond's interests in Queensland and solicited or extorted a bribe, that finding would have put a different complexion on the matter in that a less serious view might have been taken of Mr Bond's conduct. The submission is misconceived. Neither Mr Burbidge nor counsel for the respondents contended that the Tribunal should make a finding that the Premier sought a bribe from Mr Bond. It was not in the interests of the respondents to seek such a finding because the testimony of the Premier and Mr Bond, who were the only persons present at their conversations, was to the effect that their discussions were limited to the negotiation of what each person considered to be a proper settlement of the action. They each denied that there had been any importuning by the Premier. In the absence of any submission that the Tribunal should reject that evidence and find on other evidence that the Premier solicited a bribe or made a threat, it would not have been proper for the Tribunal to have made a finding of the kind suggested. In these circumstances, there is no foundation for the contention that, but for the alleged error of law, there was a possibility that the Tribunal might not have made the critical findings of fact.

82. It follows that the Tribunal did not fail to take into account a relevant consideration. Nor did it deny natural justice to the respondents by depriving them of the opportunity of calling evidence or making submissions. There was an element of obscurity arising from a want of uniformity in the Tribunal's statements as to the effect of its ruling but I am left with the strong impression that counsel for the respondents understood what was decided, namely, that Mr Bond's conduct would be assessed by reference to what he thought the transaction was and that is how the Tribunal dealt with the matter. Accordingly, the Federal Court was wrong in concluding that the Tribunal's finding that the payment of $400,000 was improper was vitiated by error.

(3) The Relevance of the Defamation Settlement

83. The respondents contend that the settlement was an irrelevant consideration (s.5(2)(a) of the ADJR Act) to the Tribunal's determination of the fitness and propriety issue and that, accordingly, the decision on that issue was vitiated. The argument is that, because the Tribunal had inquired into the defamation settlement in 1986 and had declined to draw any inference adverse to Mr Bond or the licensee QTL, the Tribunal was not entitled to reopen that decision. The argument rests substantially on the proposition that in the context of suspension or revocation of a current licence the concept "is no longer a fit and proper person" signifies a licensee which, though fit and proper at the time of grant or renewal, as the case may be, of the licence, has ceased to be fit and proper by reason of supervening circumstances or events. The argument finds textual support in the relationship of the words "no longer" with the expression "fit and proper person"; "no longer" does not govern the word "satisfied". Even so, the consequences which would follow from the adoption of this interpretation are so startling that it should not be accepted. It would mean that the Tribunal could not exercise its powers under the section in the case of a licensee which is not fit and proper or lacks the capabilities mentioned in s.88(2)(b)(ii) where that lack of fitness or capability existed at the beginning of the licence period and was not known at that time because the licensee had taken steps to conceal or disguise it. It cannot be supposed that Parliament intended that the Tribunal's powers should be restricted in this way. The preferable interpretation is that par.(b)(i) and (ii) may be satisfied even if the Tribunal finds that the licensee lacks the relevant fitness or capabilities during the currency of the licence by reason only of conduct or circumstances existing before the commencement of the licence period.

84. Of course, the Tribunal should not reopen a previous decision unless there is justification for reopening in the form of new and material information coming to the attention of the Tribunal. Stability in the industry and the standing of the Tribunal itself require that it should respect its own decisions. On the other hand, the interests of the public require that the Tribunal should be at liberty to consider the reopening of an issue examined and determined in an earlier decision when new and material information comes to light which suggests that the decision was erroneous or made in ignorance of relevant facts. The comments made by Mr Bond on the television programme "A Current Affair" certainly provided a justification for such a reopening.

85. Accordingly, the settlement of the defamation action was not an irrelevant consideration.

(4) Review of the Findings of Fact

(a) Grounds of Review

86. As I have explained, findings of fact and inferences of fact are not reviewable under the ADJR Act unless jurisdiction is enlivened by the review of a "decision" or "conduct". Findings of fact, including inferences, may be reviewed under the ADJR Act for error of law (s.5(1)(f)) and on the ground "that there was no evidence or other material to justify the making of the decision" (s.5(1)(h)). It is not necessary to consider the content of the ground in s.5(1)(j), "that the decision was otherwise contrary to law".

87. The question whether there is any evidence of a particular fact is a question of law: McPhee v. S. Bennett Ltd. (1934) 52 WN(N.S.W.) 8, at p 9; The Australian Gas Light Co. v. The Valuer-General (1940) 40 SR(NSW) 126, at pp 137-138. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light, at pp 137-138; Hope v. Bathurst City Council (1980) 144 CLR 1 , at pp 8-9. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v. Broken Hill South Ltd. (1941) 65 CLR 150 , at pp 155, 157, 160. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v. Maryborough Mining Warden (1975) 132 CLR 473 , at pp 481, 483.

88. But it is said that "(t)here is no error of law simply in making a wrong finding of fact": Waterford v. The Commonwealth (1987) 163 CLR 54 , per Brennan J. at p 77. Similarly, Menzies J. observed in Reg. v. The District Court; Ex parte White (1966) 116 CLR 644 , at p 654:

"Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law."

89. Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

90. On the other hand, there are statements in the English cases which support a "no sufficient evidence" test in the context of judicial review of findings of fact: see, for example, Reg. v. Governor of Brixton Prison; Ex parte Armah [1968] AC 192 , at pp 235, 257; but cf. pp 241, 263. It remains to be seen whether these statements convey any more than a "no probative evidence" test. So far no occasion has arisen to determine whether this is the case and, if so, whether the statements are to be seen as expressing what is or should be the law of Australia on the topic. There are also statements in the English cases which suggest that findings and inferences are reviewable for error of law on the ground that they could not be reasonably made on the evidence or reasonably drawn from the primary facts: Edwards (Inspector of Taxes) v. Bairstow [1956] AC 14 , at p 36; Cooper v. Stubbs [1925] 2 KB 753 , at p 772; British Launderers' Research Association v. Borough of Hendon Rating Authority [1949] 1 KB 462 , at pp 471-472; Ashbridge Investments Ltd. v. Minister of Housing and Local Government (1965) 1 WLR 1320 , at p 1326; (1965) 3 All ER 371, at p 374. Further, in Mahon v. Air New Zealand [1984] AC 808 , the Judicial Committee stated (at p 821) that natural justice requires that "the decision to make (a) finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory". These statements may be traced back to the observations of Diplock L.J. in Reg. v. Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 , at p 488; see also Minister for Immigration and Ethnic Affairs v. Pochi (1980) 44 FLR 41 , per Deane J. at pp 67-68; 31 ALR 666 , at pp 689-690 (an appeal from a decision of the Administrative Appeals Tribunal under the AAT Act). The approach adopted in these cases has not so far been accepted by this Court.

91. The foregoing brief summary of the authorities relating to review for error of law is by no means decisive of the interpretation of the grounds of review in the ADJR Act. It does, however, provide part of the context by reference to which one must determine the scope of the relevant grounds of review contained in that Act. Moreover, the content of the "error of law" ground of review in s.5(1)(f) is necessarily influenced by the scope and purpose of the ADJR Act as an element in the statutory scheme of review constituted by that Act and the AAT Act. Two elements of that scheme are significant for present purposes. The first is that the AAT Act alone provides for review on the merits; the second is that the two Acts draw a sharp distinction between errors of fact and errors of law. These two elements provide strong support for the view that, in general, the concept of "error of law" in s.5(1)(f) is intended to reflect the content of that expression as it was understood at common law in this country before 1977. Of course, unlike the antecedent common law, s.5(1)(f) does not require that the error of law appear on the face of the record.

92. The ground of review in s.5(1)(h),

"that there was no evidence or other material to justify the making of the decision",

must be read with s.5(3). That sub-section provides:

"The ground specified in paragraph (1)(h) shall not be taken to be made out unless:

(a)
the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he was entitled to take notice) from which he could reasonably be satisfied that the matter was established; or

(b)
the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

93. The effect of s.5(3) is to limit severely the area of operation of the ground of review in s.5(1)(h). If we put to one side the situation to which par.(b) is directed (proof of the non-existence of a fact critical to the making of the decision), the opening part of par.(a) restricts the "no evidence" ground to decisions in respect of which the decision-maker was required by law to reach that decision only if a particular matter was established. In such a case the ground of review is that there was "no evidence or other material ... from which he could reasonably be satisfied that the matter was established".

94. As the respondents do not seek to bring this case within s.5(3)(a) or (b), the ground of review in s.5(1)(h) has no direct application here. But the presence of s.5(3) tells against an expansive interpretation of s.5(1)(f). Indeed, it might be argued from the presence of s.5(1)(h) and (3) that they constitute a definitive and exhaustive statement of the "no evidence" ground of review for the purpose of s.5, thereby excluding such a ground from the concept of "error of law" in s.5(1)(f). However, such a result would verge upon the extreme and would pay scant attention to the traditional common law principle that an absence of evidence to sustain a finding or inference of fact gives rise to an error of law. The better view, one which seeks to harmonize the two grounds of review, is to treat "error of law" in s.5(1)(f) as embracing the "no evidence" ground as it was accepted and applied in Australia before the enactment of the ADJR Act and to treat the "no evidence" ground in s.5(1)(h), as elucidated in s.5(3), as expanding that ground of review in the applications for which pars (a) and (b) of s.5(3) make provision. Within the area of operation of par.(a) it is enough to show an absence of evidence or material from which the decision-maker could reasonably be satisfied that the particular matter was established, that being a lesser burden than that of showing an absence of evidence (or material) to support the decision. This interpretation of the two grounds of review enables one to say that s.5(1)(h) and (3)(a) have the effect of overcoming to a limited extent and in a limited area the restrictions on the traditional "no evidence" ground considered by Barwick C.J. and Gibbs J. in Sinclair v. Maryborough Mining Warden, at pp 481, 483.

95. The Federal Court has expressed its agreement with statements made by the House of Lords to the effect that courts exercising judicial review should leave the finding of facts to the public body appointed for that purpose by the legislature except where the public body acts "perversely": see Reg. v. Hillingdon London Borough Council; Ex parte Puhlhofer [1986] AC 484 , at pp 510, 518; see, for example, Broadbridge v. Stammers (1987) 16 FCR 296 , at pp 300-301; Apthorpe v. Repatriation Commission (1987) 77 ALR 42 , at pp 53-54. In this context, "perversely" signifies acting without any probative evidence: see Television Capricornia Pty. Ltd. v. Australian Broadcasting Tribunal (1986) 13 FCR 511 ; Smith v. General Motor Cab Company Limited [1911] AC 188 , at p 190. Thus, it has been held that the ADJR Act does not permit general review of findings of fact, in the absence of error of law: Borkovic v. Minister for Immigration (1981) 39 ALR 186 , at p 189. In particular, in Western Television Ltd. v. Australian Broadcasting Tribunal (1986) 12 FCR 414 , Pincus J. held (at p 429) that the presence of s.5(1)(h) and (3) meant that an error of law within the meaning of s.5(1)(f) could not include a mere lack of evidence, as distinct from a complete absence of evidence.

96. However, in several decisions it has been suggested that findings of fact which are unreasonable or arbitrary may be reviewed under s.5(1)(e) and (2)(a) and (b): see Singh v. Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4, at p 10; Independent F.M. Radio Pty. Limited v. Australian Broadcasting Tribunal (unreported, Federal Court, 21 April 1989); Minister for Immigration, Local Government and Ethnic Affairs v. Pashmforoosh (unreported, Federal Court, 28 June 1989). In the last-mentioned case, Davies, Burchett and Lee JJ. said (at p 11):

"Thus, decisions may be set aside because, being insufficiently supported by reason, they appear to be an improper exercise of the power conferred or arbitrary or because there was no evidence or other material sufficient to justify the making of the decision or the decision was so unreasonable that no reasonable person could have so exercised the power. The making of, or failure to make, a particular finding of fact in the course of the reasoning process may equally be attacked on any such ground. The taking into account of a fact found unreasonably or the failure to take into account a fact that a reasonable decision-maker would have found and taken into account provides a ground of review under ss.5(1)(e) and 5(2)(a) and (b) of the ADJR Act." (emphasis added)

97. This statement is unobjectionable to the extent that a finding of fact constitutes a "decision" such that it can be reviewed for unreasonableness and on other appropriate grounds. But if the finding does not constitute a "decision", it is beyond review independently of such a "decision". In accordance with what I have already said, a finding of fact will then be reviewable on the ground that there is no probative evidence to support it and an inference will be reviewable on the ground that it was not reasonably open on the facts, which amounts to the same thing.

(b) The Findings of Fact

98. My conclusion that the defamation settlement was not an irrelevant consideration and that there was no basis for setting aside the finding of fact that Mr Bond agreed to pay $400,000 to the Premier in settlement of his claim, not believing that the sum was justified by that claim alone but believing that, if he did not settle, the Premier might harm his interests in Queensland, means that the Federal Court was not justified in setting aside the further findings of fact which depended on that finding. The challenge to the findings about improper conduct (the finding described as the fifth "decision"), attempting to disguise the amount of the settlement (finding No. 2), and giving misleading evidence and deliberately giving false evidence (findings Nos 3 and 4) were all related to the primary finding of fact (finding No. 1) concerning Mr Bond's motivation in agreeing to settle the claim. And the Federal Court interfered with the consequential findings because it set aside the primary finding. Once the attack upon finding No. 1 fails, so too do the attacks upon findings Nos 2 and 4 and the fifth "decision"; Mr Bond's evidence (which was rejected) was clearly inconsistent with finding No. 1.

(i) The Finding that Mr Bond Deliberately Gave Misleading Evidence to the 1986 Inquiry

99. However, the respondents also challenged the finding that Mr Bond deliberately gave misleading evidence to the 1986 inquiry (finding No. 3) on the ground that the information then supplied was limited to a response to matters then raised by the Tribunal.

100. The finding made on 7 April 1989 that Mr Bond deliberately gave misleading evidence to the 1986 inquiry in relation to the events of January and February 1986 and in relation to the nature of the meeting with the Premier on 17 February 1986 related to an issue which was formulated by the Tribunal in these terms:

"ISSUE 2

The level of candour by the licensee at this Inquiry and during the QTQ Inquiry."

The history of the events leading to the formulation of this issue in the 1989 inquiry began on 5 August 1986 when Mr Warburton, the then Leader of the Opposition in Queensland, made allegations concerning the propriety of the defamation settlement and suggested that it involved the payment of a bribe to the Premier. The Tribunal, by letter dated 29 August 1986, wrote to the solicitors for Mr Bond and QTL in these terms:

"The Tribunal therefore asks that your client provide a comprehensive response dealing with all matters relevant to the settlement, in April 1986, of the defamation action brought by the Premier of Queensland against QTQ."

On 9 October 1986 the Tribunal, in the course of holding an inquiry into the renewal of the QTQ licence, stated:

"The purpose of the hearing will be to deal with matters left outstanding between the Australian Labor Party and the licensee."

101. In his statement to the 1986 inquiry Mr Bond said that he saw the Premier on 17 February 1986 and endeavoured to negotiate a reduction of the figure of $400,000 without success and told the Premier that that settlement was subject to ratification by the board of BCH. The evidence given at that inquiry was that the agreement to pay $400,000 to the Premier was only finally determined in late March or early April 1986. Mr Aspinall gave evidence to the 1986 inquiry that the deed of settlement was prepared in March. Moreover, Mr Lodge, the solicitor for the Bond interests, in evidence at that inquiry stated that in his opinion the damages for the defamation action would be between $100,000 and $300,000.

102. The effect of this evidence led the Tribunal in 1986 to find the settlement to be commercially justifiable in point of amount, that it was made in March or April 1986 and that it did not involve any improper payment to the Premier.

103. At the 1989 inquiry it emerged that on 17 October 1985 a discussion took place between the Premier and Mr Bond in which the sum of $400,000 was mentioned as a settlement figure. At a further meeting on 18 December 1985, according to the Premier, the two of them "shook hands" on the figure of $400,000. On 2 January 1986 Mr Aspinall sent a telex to the solicitors for QTL's insurers instructing them to prepare, in conjunction with the Premier's solicitors, an agreement for the settlement of the action for that amount, on terms that there should be no disclosure. The instruction stated:

"(T)he non-disclosure of settlement, is most vital".

The Tribunal refused to accept evidence given by Mr Bond, acquiesced in by Mr Aspinall, that Mr Aspinall had misconceived his instruction from Mr Bond. The Tribunal held that the telex reflected a concluded agreement which had been made on 18 December 1985.

104. At the 1989 inquiry further evidence was given of a third and final meeting on 17 February between the Premier and Mr Bond in which Mr Bond proposed to pay $50,000 in cash and $350,000 by way of non-repayable loan or by a payment overseas or a property transaction involving an excessive price payment of $350,000. The Premier rejected this proposal in a letter dated 19 February 1986 in which he referred to the settlement as having been negotiated in November and confirmed in mid-December, followed by the delivery on 10 January of a draft release and letter of apology. In this letter the Premier called for finalization of the settlement without delay. On 26 February a Mr Pearce replied on behalf of Mr Bond, stating:

"Please be assured that Mr Bond is as anxious as you to resolve the position however is not prepared to put both parties in a position where they will be exposed to allegations of improper conduct. He assumed that it would be understood that any agreed settlement would be subject to a satisfactory legal position. The advice we have received expresses grave concern and indicates that the proposed method of payment is fraught with danger."

There was also evidence before the 1989 inquiry that Mr Lodge considered that $50,000 was the maximum sum that could be attributed to the defamation settlement. In this respect, the Tribunal said:

"In finding that the Tribunal was misled by the earlier figure, while we think this may have been on the balance of probabilities, intentional, we consider that a higher degree of proof would be required for such a finding to be made in this case."

105. By way of answer to the suggestion that Mr Bond deliberately misled the 1986 inquiry in two respects, the respondents submit that all Mr Bond and Mr Aspinall did was to respond to the Tribunal's request for relevant information relating to the allegation made by Mr Warburton, namely, that the settlement involved a bribe. The respondents further submit that neither Mr Bond nor QTL had a duty to make full disclosure in 1986 of other information. The two respects in which it was claimed that the 1986 inquiry was misled were:

(1): the giving of misleading evidence concerning the date of the agreement for settlement; and
(2): the non-disclosure of the attempts by Mr Bond to disguise the amount of the settlement.

106. The Tribunal found that Mr Aspinall's evidence in 1986 about the drafting of the deed in March was misleading and also found that his assertions in 1989 that he did not mention the January deed because it did not proceed were untrue. In the result the Tribunal found that Mr Bond and Mr Aspinall misled the Tribunal with a view to creating the impression that the agreement was finalized in a manner contrary to the true facts.

107. In this respect, the Tribunal said:

"Bond's counsel submitted that the licensee had approached the Brisbane Inquiry on the strict basis that information which it supplied was limited to a response to only those matters raised by the Queensland ALP. If this submission were accepted, then the licensee would be justified in claiming that it had no duty to make a full disclosure of other relevant information. It is our view, after examining transcript of the QTQ hearing on this matter and the Report that followed the hearing, that none of the parties (was) acting under this assumption. In the rather lengthy discussion which took place at the beginning of the hearing on 17 November 1986, several submissions were made dealing with the relevance of particular material. None of these referred to that particular construction of the letter of 29 August 1986.

If, in fact, particular witnesses had been giving evidence in Brisbane under such a limitation, it would be expected that in evidence before us they would have adverted to such a restriction, and none did in those particular terms. We also note that no witness from the Bond group at this Inquiry made mention of any such conception regarding their evidence, nor was such a proposition led from any witness.

While such a construction could be argued in a strict legal sense, we find the submission not sustainable and do not accept it."

108. The Tribunal did not refer to evidence given by Mr Aspinall to the 1989 inquiry in which he stated that he was in charge of collating the material to be produced to the Tribunal in 1986 in response to the letter of 29 August. The following exchange took place between Mr Aspinall and counsel assisting the inquiry:

"And you accept, do you, that the material which was produced to the inquiry was produced consequent upon the request and in accordance with the terms of this letter of 29 August 1986?---Yes, and I believe that it complied with that request.

I think the key question is to be found in the second paragraph in these terms:

The tribunal therefore asks you that your client provide a comprehensive response dealing with all matters relevant to a settlement - et cetera?---That is correct, yes.

Yes?---As per Mr Warburton's accusation in Parliament, yes.

Yes. And it was in endeavouring to satisfy that request in those terms that the material was created and presented?---

That is correct."

The effect of Mr Aspinall's evidence is not altogether clear, but it is certainly capable of being understood as a statement that he read the letter of 29 August as a request only for material relevant to the bribery allegation. It is surprising that the Tribunal failed to advert to this evidence and to correspondence passing between QTL's solicitors and the Tribunal in October and November 1986 which provides some support for the view that QTL was proceeding on the footing that the subject-matter of the inquiry was the bribery allegation. Perhaps the Tribunal overlooked Mr Aspinall's evidence. The other possibility is that the Tribunal rejected his evidence on this point, a possibility that is reinforced by the Tribunal's adverse comments on other aspects of his testimony. Even so, one would have expected some reference to that part of Mr Aspinall's evidence which I have set out, more particularly as the Tribunal was embarking upon a finding that Mr Bond "deliberately gave misleading evidence" to the 1986 inquiry. The Tribunal should have taken more care in expressing its reasons for making such an adverse finding.

109. However, the short answer to the respondents' case on this point is that, even if Mr Aspinall read the letter as calling for a comprehensive response dealing with all matters relevant to the allegation made by Mr Warburton, the letter nonetheless called for the production of all material relating to the proposals put on 17 February 1986 by Mr Bond to the Premier and material concerning the maximum amount that could be attributed to the settlement of the defamation action. Whether the evidence called for a finding that Mr Bond deliberately misled the 1986 inquiry was for the Tribunal to decide provided that there was evidence to support the finding and that it involved no error of law. Despite the failure of the Tribunal to refer to that part of Mr Aspinall's evidence mentioned earlier and the sketchy and disjointed discussion of the issue by the Tribunal, there is not enough to demonstrate an error of law on the part of the Tribunal. It does not emerge that the Tribunal misapprehended the scope of the 1986 inquiry or what was involved in the particular issue it was purporting to decide in 1986. Nor does it appear that there was no probative evidence to support the finding, or that an inference that Mr Bond deliberately misled the 1986 inquiry was not open on the evidence.

(ii) The Finding that Mr Bond Threatened to Use his Television Staff to Gather Information and to Expose a Competitor

110. There was a challenge to this finding (finding No. 5), but only by reference to an adverse assessment made by the Tribunal of Mr Bond's credibility on the basis of other findings. As the challenge to the other findings fails, so does this one.

CONCLUSION

111. In the result I conclude that the Federal Court erred in setting aside the Tribunal's decision that the licensee companies were no longer fit and proper persons to hold their licences. Moreover, the respondents' further grounds in support of the result reached by the Federal Court have not been made out. There remains the question what orders should be made.

112. When this Court granted special leave to appeal, it specifically referred to the possibility that, on the appeal, closer examination of the facts and issues might result in the rescission of the order granting special leave. The hearing of the appeal has confirmed in my mind the Court's earlier decision to grant leave. The case involves important questions affecting the Federal Court's jurisdiction to review "decisions" and "conduct" under the ADJR Act, as well as important questions concerning the limits and grounds of review under ss.5 and 6 of that Act and the interpretation of s.88(2) of the Act. Accordingly, I would refuse to rescind the grant of special leave.

113. The other question relates to the respondents' applications for special leave to cross-appeal. The questions which the respondents seek to argue in their cross-appeals relate primarily to the relief which the Federal Court granted. At all events, the grounds argued depend upon the respondents first succeeding in resisting the appeal. I would therefore refuse special leave to cross-appeal.

114. I agree with the orders proposed by Toohey and Gaudron JJ.

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