AUSTRALIAN BROADCASTING TRIBUNAL v. BOND & ORS

(1990) 170 CLR 321
(1990) F.C. 900/32

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(Judgment by: TOOHEY J, GAUDRON J)

Between: AUSTRALIAN BROADCASTING TRIBUNAL
And: BOND & ORS

Court:

Judges: Mason CJ
Brennan J
Deane J

Toohey J
Gaudron J

Subject References:
Administrative Law (Cth)
Broadcasting and Television

Judgment date: 26 July 1990

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Judgment by:
TOOHEY J
GAUDRON J

This is an appeal from the Full Court of the Federal Court of Australia exercising original jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). The Full Court had before it applications for orders of review by Alan Bond, Dallhold Investments Pty. Ltd., Bond Corporation Holdings Limited, Bond Media Limited and David Roy Aspinall (the first to fifth respondents to the present appeal) and by Queensland Television Limited, Consolidated Broadcasting System (W.A.) Pty. Limited, North West Radio Pty. Ltd. and Darwin Broadcasters Pty. Limited (the sixth to ninth respondents to the present appeal) in respect of an inquiry conducted by the Australian Broadcasting Tribunal ("the Tribunal").

The Tribunal now appeals from the decision and orders of the Full Court.

Background to the Appeal

2. The sixth to ninth respondents each hold at least one commercial licence under the Broadcasting Act 1942 (Cth) ("the Broadcasting Act"). Queensland Television Limited (the sixth respondent) holds a commercial television licence. The seventh and eighth respondents each hold two commercial radio licences. The ninth respondent holds one commercial radio licence. Each of the sixth to ninth respondents is a subsidiary company, at one or more removes, of Bond Media Limited (the fourth respondent). The shareholding in Bond Media Limited is held or controlled as to 53% (mostly through subsidiaries) by Bond Corporation Holdings Limited (the third respondent) and as to 12% by Dallhold Investments Pty. Ltd. (the second respondent). Dallhold Investments Pty. Ltd. also holds 58% of the shares in Bond Corporation Holdings Limited. Mr Bond (the first respondent), by virtue of his shareholding in Dallhold Investments Pty. Ltd., is able to determine the composition of the Boards of Directors of Bond Media Limited and the sixth to ninth respondents.

3. In 1986 the Tribunal held an inquiry as to the renewal of the commercial television licence of the sixth respondent. One of the issues at that inquiry was whether, by reason of the settlement of a defamation action between the sixth respondent and Sir Joh Bjelke-Petersen, the then Premier of Queensland, it was no longer a fit and proper person to hold its commercial television licence. That issue was determined in favour of the sixth respondent.

4. In 1988 the Tribunal was conducting an inquiry concerning the licences held by the sixth to ninth respondents. It was an "ordinary inquiry" pursuant to s.17C(1) of the Broadcasting Act, initiated by the Tribunal after it was made aware of a statement made by Mr Bond relating to the settlement of the defamation action between the sixth respondent and Sir Joh Bjelke-Petersen. Other matters came to the attention of the Tribunal during the course of its inquiry, as a result of which it gave notice, from time to time, of new issues to be considered in that inquiry. The last of those notices, which was given on 21 October 1988, contains the issues with which the Tribunal and in turn the Full Court were concerned. Only two of those issues are relevant to the present appeal. The first (and the one to which most of the argument in this Court was directed) relates to the settlement of the defamation action. The second concerns a telephone conversation between Mr Bond and an executive of the AMP Society on or about 11 May 1988. The notice raised the question

"(w)hether it would be advisable in the public interest for the Tribunal to do any of the following:

(a)

Suspend any of the said licences ...

(b)

Revoke any of the said licences.

(c)

Impose or vary conditions on any of the said licences."

In formulating this question the Tribunal plainly had in mind its powers under ss.85 and 88(2) of the Broadcasting Act.

5. By s.85(1) of the Broadcasting Act the Tribunal "may, during the currency of a licence ... vary or revoke any of the conditions of the licence (other than conditions applicable by virtue of section 129) or impose further conditions". Section 88(2) of the Broadcasting Act enables the Tribunal to suspend or revoke a commercial licence, if it appears advisable in the public interest, on a number of specified grounds, including that the licensee "is no longer a fit and proper person to hold the licence".

6. After an extensive and hard-fought hearing, the Tribunal made factual findings in respect of the issues identified in its notice of new issues. A further hearing was held to determine whether the sixth to ninth respondents were no longer fit and proper persons to hold their licences. In answering that question, the Tribunal set out a summary of relevant factual findings as follows:

"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."

7. It is necessary to provide some background to findings numbered 1, 2, 3 and 4. Much of the contest at the hearing before the Tribunal was directed to whether the defamation settlement was a vehicle for the improper payment of moneys to Sir Joh Bjelke-Petersen. On this issue the Tribunal took the view, either as a matter of law or as a matter of fairness, that it should make no finding adverse to Sir Joh. However, the Tribunal characterized the actions of Mr Bond in relation to that settlement as improper on the basis that his involvement, attended with the belief set out in the Tribunal's findings, "does not exhibit an appreciation of the proper relationship between those with control of media interests and governments".

8. Findings 2, 3 and 4 derived from factual findings made by the Tribunal as to when agreement was reached concerning the settlement. In the 1986 inquiry the evidence given was that agreement was reached in late March or early April 1986. After hearing evidence at the 1988 inquiry, the Tribunal found that agreement was reached in December 1985 and that, on 2 January 1986, instructions were given by telex to the solicitors for the sixth respondent to take the necessary steps to have the agreed settlement finalized. The Tribunal further found that thereafter, at a meeting on 17 February 1986 between Mr Bond and Sir Joh Bjelke-Petersen, Mr Bond attempted to secure Sir Joh's agreement to a method of payment by which the true amount of the settlement would be disguised. In particular, Mr Bond wanted to pay Sir Joh $50,000 in cash, with a further $350,000 being paid as a loan without obligation to repay, or as consideration for the sale of an asset "off-shore", or as an excessive payment for the sale of property. These matters were not disclosed in the 1986 inquiry.

9. One other matter relating to the Tribunal's inquiry should be mentioned. The Tribunal was invited by those representing Mr Bond and his associated companies, including those companies whose licences were the subject of inquiry, to refrain from making any finding whether the licensee companies were no longer fit and proper persons within the terms of s.88(2)(b)(i) of the Broadcasting Act. It was argued that any problem disclosed by the evidence could, without any finding being made under s.88(2)(b)(i) of the Act, be resolved by the imposition or variation of conditions attaching to the licences or by the acceptance of undertakings which had been proffered. Initially, the Tribunal doubted that it had the power either to accept undertakings or to impose conditions on a licence at that stage of the inquiry. However, on review by the Federal Court it was held that the Tribunal had legal power, at that stage of the inquiry, to impose conditions on licences the subject of the inquiry, even without finding that a particular licensee is no longer a fit and proper person to hold its licence. It was also held that the Tribunal had legal power to consider undertakings of the kind proffered to it and could take the making of those undertakings into account in the exercise of its powers under the Broadcasting Act and regulations thereto: Bond Media Limited v. Australian Broadcasting Tribunal (1989) 4 BR 35. The Tribunal then gave consideration to the undertakings, but at that stage declined to accept them or to attach conditions to a licence or licences. Instead, by reference to the factual findings earlier set out, the Tribunal expressed the view that Mr Bond "would not be found to be a fit and proper person to hold a broadcasting licence" and held that, by reason of his control over the sixth to ninth respondents, those respondents were "no longer fit and proper persons within the terms of s.88(2)(b)(i) of the Broadcasting Act".

10. The respondents filed applications in the Federal Court for orders of review under the ADJR Act. There were two sets of proceedings, No.G349 of 1989, in which the first to fifth respondents were applicants, and No.G513 of 1989, in which the sixth to ninth respondents were applicants. The proceedings were heard together but with separate representation for each set of applicants. Each of the applications sought review of eleven matters characterized as "decisions" and a further seven matters characterized as "conduct". The applications were allowed in part. It was ordered that the decision of the Tribunal that the sixth to ninth respondents were no longer fit and proper persons within the terms of s.88(2)(b)(i) of the Broadcasting Act be set aside. Additionally, the Full Court characterized the Tribunal's conclusion that Mr Bond "would not be found to be a fit and proper person to hold a broadcasting licence" as a decision and ordered that it also be set aside. In the course of its judgment the Full Court stated that the factual findings underlying the Tribunal's decision (other than the finding as to the conversation between Mr Bond and the AMP executive) were vitiated by error. However, the Full Court declined to make orders, as sought by the respondents, setting those findings aside. The Full Court had no need to consider specifically the refusal of the Tribunal to impose conditions or to accept the offered undertakings. The applications for orders of review characterized those refusals as decisions and sought orders setting them aside. Those orders were not made.

11. In this Court it was argued on behalf of the Tribunal that no reviewable error attends its decision that the sixth to ninth respondents are no longer fit and proper persons within the terms of s.88(2)(b)(i) of the Broadcasting Act or any other decision, if there be any, relating to that issue. This argument largely involved a consideration of the factual matters underlying the Tribunal's decision. On behalf of the respondents it was submitted that the argument thus made involved no consideration of any matter of general importance and that the grant of special leave to appeal should be revoked. Alternatively, it was submitted that the decision of the Full Court was correct, that it was, in any event, sustainable on grounds other than those upon which the Full Court relied and that the respondents should be granted special leave to cross-appeal from the decision of the Full Court in so far as the relief granted fell short of the relief sought. The ADJR Act: Decisions under s.5 and Conduct Engaged in for the Purpose of Making a Decision under s.6

12. The ADJR Act permits of judicial review of a decision to which the Act applies (s.5), conduct engaged in for the purpose of making such a decision (s.6) and the failure to make a decision where there is a duty to make a decision (s.7). An act or omission which is neither a decision, nor conduct engaged in for the purpose of making a decision, nor a failure to make a decision within the terms of the ADJR Act is not susceptible of review under that Act. Subject to certain exceptions not presently relevant, the ADJR Act is expressed in s.3(1) to apply to a "decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment". An enactment is defined in s.3(1) in such a way as to include the Broadcasting Act.

13. The available grounds of review under the ADJR Act vary depending upon whether the subject matter of review is a decision, conduct engaged in for the purpose of making a decision, or a failure to make a decision. See ss.5, 6 and 7. In particular, although there is a certain correspondence in terminology, the grounds applicable to a decision focus on the decision itself (s.5), whereas the grounds applicable to conduct look either to the conduct (s.6(1)(a), (b), (f) and (g)) or to the proposed decision (s.6(1)(c), (d), (e), (f), (h) and (j)).

14. It was conceded on behalf of the Tribunal that the finding that the sixth to ninth respondents are no longer fit and proper persons within the terms of s.88(2)(b)(i) of the Broadcasting Act is a decision to which s.5 of the ADJR Act applies. No such concession was made as to the Tribunal's conclusions that Mr Bond's involvement in the defamation settlement was improper and that he would not be found to be a fit and proper person to hold a commercial broadcasting licence. Nor was any such concession made as to the factual findings upon which those conclusions were based. The argument made on behalf of the Tribunal did not specifically address the question whether the refusal to impose conditions or to accept undertakings constitutes a decision which is reviewable under s.5 of the ADJR Act. In the Federal Court the respondents sought the separate review of each of those conclusions, findings and failures on the basis that they constitute decisions to which s.5 of the ADJR Act applies. In this Court it was submitted on behalf of the respondents that, if they do not constitute decisions, they are nonetheless separately reviewable as conduct under s.6 of that Act.

15. In Director-General of Social Services v. Chaney (1980) 47 FLR 80 , at p 100; 31 ALR 571 , at p 590, Deane J. noted that "(t)he word 'decision' is a word of indeterminate meaning" which might refer to "the mental process of making up one's mind", or "the determination of any question of substance or procedure" or "a determination ... resolving an actual substantive issue". His Honour further noted that the third meaning might refer to "any such determination whether final or intermediate" or might be limited to "a determination which effectively disposes of the matter in hand". His Honour then observed (at p 101; p 591 of ALR) that the activities defined as constituting "a decision" in s.3(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (which provision corresponds to, and is virtually identical with, s.3(2) of the ADJR Act) "provide some indication that a reference to 'decision' in the Act is, prima facie, a reference to the ultimate or operative determination rather than a reference to an adjudication or determination of issues arising in the course of making such an ultimate or operative determination". His Honour added that that indication was, however, slight.

16. Later, in Lamb v. Moss (1983) 76 FLR 296 ; 49 ALR 533 , it was held by the Full Court of the Federal Court (at p 318; p 556 of ALR), speaking in the context of the ADJR Act, that "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".

17. Section 3(2) of the ADJR Act provides as follows:

"In this Act, 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;

and a reference to a failure to make a decision shall be construed accordingly."

18. Apart from par.(g), s.3(2) of the ADJR Act speaks exclusively to the exercise of or refusal to exercise a substantive power. The words of par.(g), "doing or refusing to do any other act or thing", also encompass the exercise of or refusal to exercise a substantive power. The Tribunal clearly had power to impose conditions (s.85(1) of the Broadcasting Act) and it is not in issue that it had power to accept undertakings. See Bond Media Limited v. Australian Broadcasting Tribunal. Thus, in so far as there was a refusal to exercise either of these powers, there is a decision to which s.5 of the ADJR Act applies.

19. Generally, the exercise of or the refusal to exercise a substantive power will constitute a decision which, in the terms used in Lamb v. Moss, has "an ultimate and operative effect". However, this will not always be so. It is not difficult to envisage situations in which the exercise of, for example, a power to make an order (as referred to in s.3(2)(a)) is conditioned upon an earlier declaration (as referred to in s.3(2)(e)). In that situation there would be no decision with "ultimate and operative effect" until a decision had been made with respect to the exercise of both powers. Yet, clearly enough, the making of the declaration would, by force of s.3(2)(e), constitute the making of a decision.

20. The question raised by s.3(2) of the ADJR Act is not whether an act (whether positive or negative) should have "ultimate and operative effect" to be characterized as a decision but, rather, whether the terms of par.(g) extend to encompass acts which do not involve the exercise of or refusal to exercise a substantive power.

21. The principles of construction embodied in the Latin expressions ejusdem generis and noscitur a sociis favour the construction of general words by reference to more particular matters dealt with in the same provision. On this approach, s.3(2)(g) of the ADJR Act might well be construed as confined to the exercise of or refusal to exercise a substantive power. On the other hand, if it had been the intention of the legislature to so limit the decisions which are reviewable under s.5 of the Act, that could have been simply stated.

22. In so far as s.16(1)(b) of the ADJR Act enables the Federal Court, without quashing or setting aside a decision, to make an order "referring the matter to which the decision relates to the person who made the decision for further consideration", that paragraph suggests that the words "doing or refusing to do any other act or thing", as used in s.3(2)(g), are not confined to acts involving the exercise of or refusal to exercise a substantive power.

23. Another indication that s.3(2)(g) of the ADJR Act is not confined to the exercise of or refusal to exercise a substantive power is to be found in Scheds 1 and 2 to that Act which respectively exclude certain classes of decisions from the operation of the Act and the operation of s.13 of the Act. By par.(e) of Sched.1 there are excluded from the Act "decisions ... forming part of the process of making, or leading up to the making of, assessments or calculations of tax or duty" under specified tax Acts. Again, by par.(a) of Sched.2 there are excluded from s.13 of the Act "decisions in connection with, or made in the course of, redress of grievances, or redress of wrongs, with respect to members of the Defence Force".

24. The terms of s.16(1)(b) of the ADJR Act and the implied acknowledgment in Scheds 1 and 2 that the Act applies to decisions forming part of the process or made in the course of other decisions involving the exercise of a substantive power indicate that s.3(2)(g) is not, and, consequently, the acts reviewable as decisions under s.5 of the ADJR Act are not confined to acts involving the exercise of or refusal to exercise a substantive power.

25. It does not follow that, because s.5 is not confined to acts involving the exercise of or a refusal to exercise a substantive power, the acts which constitute a decision reviewable under s.5 of the ADJR Act are at large. They are confined by the requirement in s.3(1) that they be made "under an enactment". A decision under an enactment is one required by, or authorized by, an enactment. Cf. Australian National University v. Burns (1982) 64 FLR 166; 43 ALR 25 . The decision may be expressly or impliedly required or authorized. See Minister for Immigration and Ethnic Affairs v. Mayer (1985) 157 CLR 290 , at pp 302-303; Chan v. Minister for Immigration and Ethnic Affairs (1989) 63 ALJR 561, at p 571; 87 ALR 412 , at p 429. If an enactment requires that a particular finding be made as a condition precedent to the exercise of or refusal to exercise a substantive power, a finding to that effect is readily characterized as a decision "under an enactment". However, it is otherwise with respect to findings which are not themselves required by an enactment but merely bear upon some issue for determination or some issue relevant to the exercise of a discretion. Findings of that nature are not themselves "decisions under an enactment"; they are merely findings on the way to a decision under an enactment.

26. The finding by the Tribunal that the sixth to ninth respondents were no longer fit and proper persons within the terms of s.88(2)(b)(i) of the Broadcasting Act is, as conceded on behalf of the Tribunal, a decision under an enactment. It was, in the circumstance with which the Tribunal was concerned, a finding which was required before the Tribunal could exercise its power under that section to suspend or revoke the licences.

27. The conclusion that Mr Bond would not be found to be a fit and proper person to hold a commercial licence is in a different category. It is not a conclusion which itself is required to be made before the Tribunal may exercise or refuse to exercise the powers conferred by s.85(1) or s.88(2) of the Broadcasting Act. Nor in truth is it a conclusion authorized by that Act. Rather, it is merely a step in the process by which the Tribunal reached its decision concerning the sixth to ninth respondents. It is not itself a decision under the Broadcasting Act. The same is true of the conclusion concerning Mr Bond's involvement in the defamation settlement and the factual findings upon which the Tribunal's decision concerning the sixth to ninth respondents was based.

28. In the Full Court the conclusion that Mr Bond would not be found to be a fit and proper person to hold a commercial licence was seemingly characterized, in passing and in terms of s.5(1)(d) of the ADJR Act, as a "decision ... not authorized by (the Broadcasting Act)". Certainly it was so characterized in the applications for orders of review and in submissions made on behalf of the respondents to this Court.

29. The expression "not authorized" in s.5(1)(d) of the ADJR Act, when considered in the context of the exercise of administrative powers conferred by an enactment, signifies a decision that is expressly or impliedly forbidden. The expression does not refer to findings or conclusions which, although not required, bear upon or may bear upon some issue for determination under an enactment. Nor is the expression concerned with the more fundamental question whether a decision has been made under an enactment. It assumes that a decision has been made under the relevant enactment.

30. The decision made by the Tribunal concerning the sixth to ninth respondents was founded on its factual findings and its conclusions concerning Mr Bond. That being so, any error attending those conclusions or findings is necessarily involved in the Tribunal's decision. Accordingly, the conclusions and the factual findings must be analyzed to see whether they or any of them were attended by some error which renders the decision reviewable under s.5 of the ADJR Act.

31. Because any error attending the conclusions concerning Mr Bond and the Tribunal's factual findings is necessarily involved in the Tribunal's decision concerning the sixth to ninth respondents, it is unnecessary to consider whether, a decision having been made, those conclusions and findings are separately reviewable as conduct under s.6 of the ADJR Act. However, it may be observed that, once a decision has been made, no useful purpose is served by dissecting the steps which have led to that decision and subjecting them to review as conduct unless that review is directed to the identification of some reviewable error attending the decision itself. If the decision is to stand because it is not attended by a reviewable error, review of the conclusions and findings leading to that decision to see if they were attended by some error which, ex hypothesi, was not carried into the decision so as to render it reviewable is a futile exercise. That such is not permitted by the ADJR Act is clear from the grounds upon which conduct may be reviewed, those grounds being limited to a defect in procedure or in the conduct engaged in for the purpose of making a decision (s.6(1)(a), (b), (f) and (g)) and to error infecting or likely to infect "the proposed decision" (s.6(1)(c), (d), (e), (f), (h) and (j)). Clearly it is not the intention of the ADJR Act that conduct is subsumed in decision. The legislation makes independent provision for a review of each. The distinction cannot be explained simply by reference to procedure on the one hand and substance on the other. The language of the ADJR Act, including the grounds upon which each may be reviewed, does not permit such a distinction to be readily drawn.

The Decision of the Full Court

32. The Full Court held that the Tribunal erred in two respects. First, it held that the Tribunal erred "in construing what was involved if, within the meaning of sub-s.88(2) of (the Broadcasting Act), it was to be satisfied that each of the licensees was no longer a fit and proper person to hold its licence or licences". It held that that error was manifest from the failure of the Tribunal to have regard to evidence which suggested that "the boards of the licensee companies operated in an entirely proper manner and discharged their duties in accordance with ... company law", that the directors and executives had not been subject to "interference by Mr Bond", and that, by undertakings offered, Mr Bond "would have distanced himself" from the licensee companies and that the licensees had complied and continued to comply "with their obligations under (the Broadcasting Act)".

33. The second error discerned by the Full Court was an error of law in the Tribunal's holding that "the Premier was not 'amenable' to its jurisdiction and therefore (precluding) itself from making findings as to what the Premier did or said (in relation to the defamation settlement)". The Full Court held that that error tainted all factual findings (other than that relating to the telephone conversation between Mr Bond and an executive of the AMP Society) and the Tribunal's conclusions concerning Mr Bond.

Review of the Decision that the Licensees are no longer Fit and Proper - Section 88(2) of the Broadcasting Act

34. The Full Court construed s.88(2)(b)(i) of the Broadcasting Act so that something more than an adverse finding as to the conduct or character of a person in a position to control the composition of the Board of Directors of a licensee is necessary to ground a finding that the licensee is no longer fit and proper to hold a commercial licence. The matters which the Full Court considered should have been taken into account would seem to indicate that the view was taken that s.88(2)(b)(i) required that regard be had to whether that control had been exercised in some way bearing upon the discharge of the licensee's obligations or was likely to be so exercised.

35. The question raised by s.88(2)(b)(i) of the Broadcasting Act is whether the Tribunal is satisfied that "the licensee is no longer a fit and proper person to hold (a commercial) licence". Two matters may be noted by reference to that question. First, the licensee is, by s.81AA(1) of the Broadcasting Act, necessarily a company that is formed within the limits of the Commonwealth or a Territory and has a share capital. Secondly, the words "no longer" reflect the fact that the licensee will already have been found to be fit and proper when the licence was granted. Moreover, the question of its fitness and propriety will have been a matter open to consideration on each occasion that the licence was renewed. The words "no longer" thus import a requirement that there should have been some change in the circumstances of the licensee or revelation of some event bearing upon its fitness and propriety since that issue was last considered. However, the nature of the required change or supervening event can only be determined by reference to the content of the expression "fit and proper".

36. The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

37. Whether the fitness and propriety of a licensee to hold a commercial licence are sufficiently ascertained by reference to its character or reputation, or must be ascertained by reference to the conduct of its affairs and activities, is a question the answer to which must be found by implication from the provisions of the Broadcasting Act dealing with the grant, renewal and revocation or suspension of a commercial licence and from the activities to be undertaken pursuant to the licence.

38. Section 88(2) of the Broadcasting Act, although directed to revocation or suspension of a commercial licence, repeats the substance of the considerations relevant under ss.83A(4) and 86AA(4) to the refusal to grant or the refusal to renew a commercial licence. Section 88(2) provides:

"The Tribunal may suspend or revoke a commercial licence if it appears to the Tribunal that it is advisable in the public interest to do so, having regard only to the following matters or circumstances:

(a)

the Tribunal is satisfied that the licensee has failed to comply with the undertaking given under subsection 83(1) or 86(4), as the case may be, in relation to the licence;

(b)

the Tribunal is satisfied that the licensee

(i)

is no longer a fit and proper person to hold the licence; or

(ii)

no longer has the financial, technical and management capabilities necessary to provide an adequate and comprehensive service pursuant to the licence; or

(c)

the Tribunal is satisfied that a condition of the licence has not been complied with."

39. Section 83(1) of the Broadcasting Act requires an applicant for the grant of a licence, not being a limited licence, to give an undertaking that it will, if granted the licence:

"(a)

comply with the conditions of the licence;

(b)

provide an adequate and comprehensive service pursuant to the licence;

(c)

encourage the provision of programs wholly or substantially produced in Australia; and

(d)

use, and encourage the use of, Australian creative resources in connection with the provision of programs."

Section 86(4) requires that a fresh undertaking in the terms required by s.83(1) be given before a licence is renewed.

40. It is clear from s.88(2), and from ss.83A(4) and 86AA(4), that the question whether a company is fit and proper to hold a commercial licence extends beyond that which is involved in the provision of broadcasting services and compliance with the conditions and the undertakings under s.83(1) or s.86(4) which attach to the licence. See Western Television Ltd. v. Australian Broadcasting Tribunal (1986) 12 FCR 414 , at p 421. Nevertheless, the question is directed to the fitness and propriety of the licensee to hold a commercial licence and to undertake broadcasting activities pursuant to that licence. See Re New Broadcasting Ltd (1987) 12 ALD 1 , at p 8. Even so, the nature of commercial broadcasting and the grant of power in ss.83A(4), 86AA(4) and 88(2) of the Broadcasting Act on the basis that "it appears ... that it is advisable in the public interest" indicate that the considerations which may be taken into account in determining whether a licensee is not or is no longer fit and proper are not closely confined.

41. Commercial broadcasting plays a significant role in the dissemination of information and ideas. That dissemination is vital to the maintenance of a free and democratic society. See Attorney- General for New South Wales v. John Fairfax and Sons Ltd. and Bacon (1985) 6 NSWLR 695, per McHugh J.A. at p 714. See also Hinch v. Attorney-General (Vict.) (1987) 164 CLR 15 , at p 83; Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 , at p 98; Attorney-General v. Times Newspapers Ltd. [1974] AC 273 , at p 315. A commercial broadcasting licence thus carries with it an obligation to the community. It also carries with it the potential for powerful influence. The community is entitled to confidently expect that a licensee will discharge its obligation and, in particular, that the potential for influence will not be abused. Within this context it is necessarily sufficient to ground a finding that a licensee is not a fit and proper person to hold a commercial licence that the community could not or would not have confidence that the licensee would discharge that obligation. Equally it is sufficient to ground a finding that the licensee is no longer fit and proper that the community could or would no longer have that confidence. Those questions are apt to be answered by reference to the character and reputation of the licensee.

42. When the question is whether, having regard to its character or reputation, a company is fit and proper, the answer may be given by reference to the conduct, character or reputation of the persons by and through whom it acts or who are otherwise relevantly associated with it. The identity of the persons relevant to the character and reputation of a company will necessarily vary according to the circumstances of the company under consideration. At one extreme, if a person regularly exercises control in all important matters affecting the company's activities, then, ordinarily, the question will be sufficiently answered by reference to that person. At the other extreme, if no person is in a position of control or if one person, although in a position to exercise control, regularly delegates that control to others, then it will ordinarily be necessary to have regard to the persons who manage the company's affairs and activities. The question whether it is sufficient to have regard to one person or necessary to have regard to others when determining whether a company is fit and proper is one that depends on the circumstances of the company and not on any legal requirement imported by the expression "fit and proper". It follows that, in appropriate circumstances, the question of the fitness and propriety of a company to hold a commercial licence under the Broadcasting Act may be determined by reference to the conduct, character or reputation of a single person associated with it.

43. Because the question of a licensee's fitness and propriety may be determined by reference to its character or reputation, which in turn may be assessed by reference to the conduct, character or reputation of some person or persons associated with it, it follows that the change or supervening event postulated by the words "no longer" may consist of revelations touching the conduct, character or reputation of the person or persons concerned.

44. Section 88(2) of the Broadcasting Act does not, as a matter of construction, preclude the possibility that a finding that the Tribunal is satisfied that a licensee is no longer a fit and proper person may be grounded on the conduct, character or reputation of some person or persons associated with the licensee, which conduct, character or reputation has been revealed since that issue was last considered. The Full Court erred in construing it otherwise. That is not to exclude the possibility that the circumstances of the licensee may be such that failure to have regard to other persons associated with the licensee or to the manner in which the affairs of the licensee have been conducted will constitute a failure to take a relevant consideration into account and, hence, an improper exercise of power under s.5(1)(e) of the ADJR Act. But that is an entirely different issue from that which the Full Court considered was directed by s.88(2) of the Broadcasting Act.

The Tribunal's Approach to the Defamation Settlement

45. As earlier indicated, the Full Court held that the Tribunal erred in law in holding that "the Premier was not 'amenable' to its jurisdiction and (thus precluding) itself from making findings as to what the Premier did or said (in relation to the defamation settlement)". The relevant ruling made by the Tribunal was that it could "accept the facts of what went on", but that it could not move from there "to an adverse finding against Sir Joh Bjelke-Petersen". Precisely what, if any, limits on the Tribunal's findings flowed from that ruling are not clear. However, it is convenient to approach the matter on the hypothesis that, by reason of an error of law, the Tribunal precluded itself from making findings as to what Sir Joh said and did and from characterizing the transaction, if the findings so permitted, as involving extortion, solicitation of a bribe or other impropriety.

46. For an error of law to constitute a ground of review under s.5(1) of the ADJR Act it is necessary that "the decision (involve) an error of law": s.5(1)(f). For an error of law to be involved in a decision something more than the mere occurrence of error is necessary. The error must have contributed to the decision in some way or, at the very least, it must be impossible to say that it did not so contribute. Conversely, an error is not involved in a decision if it did not contribute to the decision or if the decision must have been the same regardless of the error. Thus, to show that an error of law is involved in a decision it is necessary, at the very least, to show that the decision may have been different if the error had not occurred. This approach may be compared with the operation of the rules of natural justice where an allegation is made to which a person has no opportunity to respond. See Kioa v. West (1985) 159 CLR 550 , at p 603.

47. The decision that the sixth to ninth respondents were no longer fit and proper persons to hold their commercial licences was substantially founded on the finding that "Mr Bond agreed to pay the Premier of Queensland ... $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." A different finding on that matter may well have resulted in different findings on other factual issues arising out of the settlement, the conclusions concerning Mr Bond and the decision concerning the sixth to ninth respondents.

48. It is not suggested that there was no evidence to support the Tribunal's finding as to Mr Bond's state of mind when he agreed to the defamation settlement. See, in this respect, s.5(1)(h) and (3) of the ADJR Act. Nor is it suggested that the Tribunal's approach involved any widening or narrowing of the evidence to which it might properly have regard on that issue. Rather, the Full Court held that an error of law was involved because "(it) was impossible both in logic and common sense for the Tribunal to determine the nature of the transaction involved in the settlement ... without making findings as to what was said and done by each person involved in the settlement negotiations". The same idea was expressed in the argument made on behalf of the respondents that the Tribunal precluded itself from taking into account a relevant consideration, namely, the nature of the settlement transaction. The Full Court held that the failure to make findings as to what was said and done had two consequences. The first consequence was that "the Tribunal ... prevented itself from making any finding to the effect that the sum of $400,000 was extorted or solicited by the Premier", which finding "might well have gone to lessen the culpability attributed to Mr Bond". The second consequence was that Mr Bond was denied his entitlement "as a matter of natural justice to have both sides of the transaction looked at, if it was to be looked at at all".

49. It is convenient to consider first whether there was a denial of natural justice. There can be no doubt that, as a matter of procedural fairness, the respondents were entitled to call evidence as to what Sir Joh Bjelke-Petersen said and did in relation to the defamation settlement. However, that evidence was called and it is not suggested that any evidence relevant to that issue was shut out by the Tribunal. Thus, the only question of natural justice or procedural fairness is whether the respondents were given a reasonable opportunity to meet the case which would arise if the Tribunal were to proceed solely by reference to a finding as to Mr Bond's belief concerning the settlement. The Tribunal announced its intention to proceed in that manner and allowed an adjournment so that submissions could be made accordingly. There can be no suggestion that there was a denial of natural justice or procedural fairness in the course adopted.

50. It is necessary to give some account of the evidence as to the settlement negotiations to ascertain whether the decision of the Tribunal may have been different if it had not, as hypothesized, precluded itself from making findings as to what Sir Joh Bjelke-Petersen said and did, and, if the findings so permitted, from characterizing the settlement transaction.

51. The defamation settlement was negotiated between Mr Bond and Sir Joh. No other person was present during the negotiations. They and only they could give evidence as to what was said and done. Each gave evidence. Each asserted his belief that the sum involved was an appropriate settlement sum, having regard to the content of the matter upon which the defamation action was brought. Each denied that anything was said or done which was other than by way of a genuine attempt to negotiate an appropriate settlement of the action.

52. The Tribunal could make findings as to what was said and done by Sir Joh Bjelke-Petersen only by reference to his and Mr Bond's evidence. It could proceed to characterize the settlement transaction only by reference to the findings thus made. If his and Mr Bond's evidence was rejected as untruthful (as it might have been), although that would permit the drawing of adverse inferences, it would also destroy the sole evidentiary basis for the making of findings as to what was said and done. If, or to the extent that, that evidence was accepted, it could not support a finding that Sir Joh said or did anything which amounted to impropriety on his part, for the evidence was all to the contrary. If, or to the extent that, that evidence was accepted, it could only support findings which either tended towards a lack of impropriety in relation to the settlement transaction or threw no light on that issue.

53. Even if the Tribunal erred in law and thereby precluded itself from making findings as to what was said and done by Sir Joh Bjelke-Petersen, the available evidence would only have permitted limited findings amounting in practical terms to no more than a statement of what, if any, evidence was accepted. Although such a statement could have been made, it is clear that the evidence, to the extent, if any, that it was accepted, did not persuade the Tribunal either that Mr Bond believed that $400,000 was an appropriate settlement sum for the defamation action or that he did not believe that his interests would be harmed if he did not settle in that amount. That being so and given the limited nature of the only findings open, it is impossible to say that a statement indicating what, if any, evidence was accepted, and articulating findings or characterizing the settlement transaction by reference to the accepted evidence, may have resulted in a different finding as to Mr Bond's state of mind when he agreed to the settlement.

54. On the hypothesis that the Tribunal erred in law in the manner indicated by the Full Court, it cannot be said that any of the findings or conclusions, or the decision relating to the sixth to ninth respondents might have been different if the error had not occurred. The Grant of Special Leave to Appeal

55. Although the correctness of the decision of the Full Court turns, to some considerable extent, on an analysis of the evidence before the Tribunal, it also raises questions as to the construction of s.88(2) of the Broadcasting Act, the meaning of "a decision ... under an enactment" as that expression is used in the ADJR Act, the scope of review under the ADJR Act once a decision has been made, and whether, in terms of s.5(1)(f) of the ADJR Act, "the decision involved an error of law". In these circumstances special leave to appeal should not be revoked. Unless the decision and orders of the Full Court are sustainable on other grounds the appeal must be allowed.

The Respondents' Submissions on other Grounds Raised in the Applications for Orders of Review, in their Submissions to this Court and in the Applications for Special Leave to Cross-Appeal

56. There is some difficulty in proceeding to a consideration of these matters by reference to the grounds assigned in the applications for orders of review or the applications for special leave to cross-appeal. The applications characterized a number of findings and conclusions as decisions, which findings and conclusions, for the reasons earlier given, are not themselves decisions under an enactment but merely steps on the way to the decision reached by the Tribunal. Moreover, as earlier indicated, in so far as it was submitted that those matters were reviewable as conduct, along with other matters characterized as conduct in the applications, review of those matters can result in the grant of useful relief only if they disclose a reviewable error attending the decision concerning the sixth to ninth respondents. It is thus convenient to consider those matters by reference to the particular issues raised in the course of argument in this Court.

The Factual Findings

57. Although, for the reasons already given, the factual findings are not reviewable either as decisions or as conduct, it is appropriate that we state our general agreement with the observations of Mason C.J. as to the grounds upon which factual findings may be reviewed.

58. The attack on the finding as to Mr Bond's state of mind in relation to the defamation settlement was made by reference to the failure of the Tribunal to make findings concerning Sir Joh Bjelke- Petersen and to characterize the defamation settlement. That attack has failed. To the extent that the attack on the finding as to Mr Bond's state of mind was the basis of attack on other factual findings, that attack also fails. In particular, the findings as to the attempt to disguise the settlement amount and the giving of false evidence in the 1988 inquiry must stand. Those findings were attacked only on the basis that they were dependent on the finding as to Mr Bond's state of mind when he agreed to the settlement.

59. The finding that Mr Bond gave misleading evidence to the 1986 inquiry was attacked on the basis that in that inquiry the "information supplied was limited to a response to the matters raised". That attack must fail. As earlier indicated, the evidence in the 1986 inquiry was that settlement was reached in late March or early April 1986. In the 1988 inquiry the Tribunal found that agreement had been reached in December 1985.

60. An attack was also made on the finding relating to the conversation between Mr Bond and an executive of the A.M.P. Society on the basis that it depended on adverse findings as to Mr Bond's credibility involved in the other factual findings. The failure of the attack on those other factual findings necessarily entails the failure of this attack. The Conduct of and the Conclusions Concerning Mr Bond and the Question of the Fitness and Propriety of the Sixth to Ninth Respondents

61. As has been said already in these reasons, the character and reputation of a licensee company may be assessed by reference to the conduct, character or reputation of some person or persons associated with it. The identity of the person or persons by reference to whom it may be assessed depends upon the circumstances of the company under consideration.

62. It was argued on behalf of the respondents that, by equating Mr Bond's fitness and propriety with that of the sixth to ninth respondents, the Tribunal took an irrelevant consideration into account and that, in consequence, its decision concerning the sixth to ninth respondents is reviewable as "an improper exercise of ... power". See s.5(1)(e) and (2)(a) of the ADJR Act. Alternatively, it was argued that, by failing to have regard to evidence as to the way in which the affairs of the licensee companies had been conducted and to offered undertakings as to the future conduct of those affairs, the Tribunal failed to take relevant considerations into account. See s.5(1)(e) and (2)(b) of the ADJR Act.

63. The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.

64. The Tribunal regarded the circumstances attending the defamation settlement as involving serious impropriety, holding that Mr Bond's actions in negotiating the settlement did "not exhibit an appreciation of the proper relationship between those with control of media interests and governments". The Tribunal further held that the attempt to disguise the settlement involved "improper behaviour of a more fundamental and damaging nature". It was clearly open to the Tribunal to so evaluate the actions of Mr Bond. It was also open to the Tribunal to assess the character of Mr Bond in the terms that it did, namely, that "he would not be found to be a fit and proper person to hold a broadcasting licence" and by reference to its having "little confidence in view of the evidence ... heard in this Inquiry in the notion that Mr Bond would not ultimately prevail in any significant area where his overall interests were involved".

65. A fair reading of the Tribunal's reasons for decision shows that it equated the fitness and propriety of Mr Bond with that of the sixth to ninth respondents only in the sense that, by reason of his power to control the composition of the Boards of Directors of the licensee companies and in light of his past conduct and his character as assessed by the Tribunal, it had little confidence that Mr Bond would not again engage in conduct having the effect of compromising the integrity, as broadcasters, of licensee companies under his control. That evaluation was one which was well within the scope of the decision-making powers conferred by s.88(2)(b)(i) of the Broadcasting Act. It was an evaluation made by reference to the conduct and character of Mr Bond. But it was also an evaluation of the character of the sixth to ninth respondents.

66. The weight, if any, to be given to evidence as to the manner in which the affairs of the licensee companies had been conducted was a matter for evaluation by the Tribunal. The Tribunal came to the conclusion that the evidence gave it little confidence that Mr Bond would not "prevail ... where his overall interests were involved". That was a view open to the Tribunal and, once it had come to that view, evidence as to the past conduct of the affairs of the sixth to ninth respondents could not bear any further relevance on the question whether they were no longer fit and proper persons to hold their licences.

67. Again, the significance, if any, to be attached to the undertakings offered as to the future conduct of the affairs of the licensee companies was a matter for evaluation by the Tribunal. The undertakings were so evaluated, the Tribunal holding that they did "not address the concerns (it held) about Mr Bond's behaviour". In the light of that conclusion and the Tribunal's conclusion that it had little confidence that Mr Bond would not prevail "in any significant area where his overall interests were involved", the offered undertakings became irrelevant.

68. The decision of the Tribunal is not susceptible of review on the ground that it was an improper exercise of power by reason either that it had regard to an irrelevant consideration or that it failed to have regard to relevant considerations when it determined that the sixth to ninth respondents were no longer fit and proper to hold their licences by reference to its findings as to the conduct and character of Mr Bond.

Undertakings and Conditions

69. In their applications for orders of review the respondents sought orders setting aside decisions by which, it was said, the Tribunal refused to consider the imposition of conditions and refused to accept the undertakings offered by the respondents. In this Court it was submitted that the decision and orders of the Full Court are sustainable by reference to those refusals, and that special leave to cross-appeal should be granted to enable those decisions to be set aside.

70. Once it is accepted that the offered undertakings became irrelevant in the process involved in the evaluation of the fitness and propriety of the sixth to ninth respondents, it is impossible to say that any error was involved in the Tribunal's refusal to accept them.

71. There are considerable difficulties in the notion that the Tribunal made a decision if it refused to consider the imposition of conditions. Specific conditions dealing with the matters raised by the evidence were not proposed. A refusal to impose specific conditions is readily characterized as a decision. However, once it is said, as was said in the submissions made on behalf of the respondents in this Court, that the Tribunal refused or failed to consider the imposition of conditions or to consult as to suitable undertakings "before or contemporaneously with making a finding under s.88(2)(b)(i) (of the Broadcasting Act)", it is apparent that what is complained of is a refusal or failure to make a decision, rather than the making of a decision susceptible of review under s.5 of the ADJR Act. That refusal or failure, it was argued, amounted to an error of law or, alternatively, constituted unreasonableness.

72. The first question raised by the argument is whether there was any requirement on the part of the Tribunal to consider the imposition of conditions or the acceptance of suitable undertakings. On the basis that there was such a requirement, the respondents argued that the decision concerning the sixth to ninth respondents must be set aside as one involving an error of law (s.5(1)(f) of the ADJR Act) or as one in connection with which procedures that were required by law were not observed (s.5(1)(b) of the ADJR Act). It may be doubted whether, assuming such a requirement, a failure to consider the imposition of conditions or the acceptance of suitable undertakings is properly described as a failure to observe procedures required by law within the terms of s.5(1)(b), although, clearly, it would constitute an error of law. If there was no such requirement, the decision must stand unless it can be said that the refusal or failure to consider conditions or to consult as to undertakings rendered the decision unreasonable, that being the only other challenge made by reference to that refusal or failure. See, in this regard, s.5(2)(g) of the ADJR Act which renders a decision reviewable as an improper exercise of power if the exercise of power "is so unreasonable that no reasonable person could have so exercised the power".

73. It was not suggested that there was any express requirement that the Tribunal consider conditions or consult as to suitable undertakings before proceeding to a finding under s.88(2)(b)(i) of the Broadcasting Act. Rather, it was argued that the requirement flowed from the fact that the inquiry was one into "the proposed exercise of two substantive powers". That is so, but the power under s.88(2) of the Broadcasting Act arises only when the Tribunal is satisfied that one or other of the grounds specified in that sub-section has been made out. Thus, in the present matter, the power under s.88(2) arose only when a finding was made that the sixth to ninth respondents were no longer fit and proper to hold their licences. However, the power may also be activated by a finding that the licensee no longer has one or other of the required capabilities to provide an adequate and comprehensive service or that a condition of the licence has not been complied with. There is no basis for distinguishing these findings from a finding, under s.88(2)(b)(i), that the licensee is no longer fit and proper to hold its licence. Section 88(2) contemplates that any one of these matters may warrant the suspension or revocation of a licence.

74. There is a certain want of logic in the notion that, if the Tribunal is conducting an inquiry to ascertain whether it should exercise its power to impose conditions under s.85(1) or its powers of revocation or suspension under s.88(2), it is required to consider, before or contemporaneously with making a finding under s.88(2)(c), that a condition has not been complied with, whether that non- compliance can be remedied by the imposition of a further condition or the acceptance of an undertaking. Indeed, it might be expected that in that situation and in a number of other situations the Tribunal would not be able to give adequate consideration to the content of appropriate undertakings or conditions until it had made precise findings. There is thus no basis for the implication of a requirement that the Tribunal consider the imposition of conditions or consult as to suitable undertakings before proceeding to a finding under s.88(2) of the Broadcasting Act.

75. Given the nature of the Tribunal's factual findings and its evaluation of the conduct the subject of those findings, it is impossible to say that it was unreasonable for the Tribunal not to do that which it was not required to do, namely, consider the imposition of conditions or consult as to suitable undertakings before or contemporaneously with making a finding under s.88(2)(b)(i) of the Broadcasting Act.

The Relevance of the Defamation Settlement

76. The final argument raised in support of the decision of the Full Court was that the decision concerning the sixth to ninth respondents was an improper exercise of power by reason that the Tribunal had regard to an irrelevant matter, namely, the defamation settlement. The settlement was irrelevant, it was argued, because it had been the subject of the 1986 inquiry, and, having been then investigated, the Tribunal was thereafter precluded from a re-investigation of that matter.

77. The subject matter of the 1986 inquiry was not the defamation settlement. It was whether the licence of the sixth respondent should or should not be renewed having regard, inter alia, to whether it was then a fit and proper person to hold its licence. See s.86AA(4)(b)(i) of the Broadcasting Act. Clearly, once the licence was renewed, it was no longer open to the Tribunal to inquire whether the sixth respondent was not, at the time when its licence was renewed in 1986, a fit and proper person to hold its licence. The 1988 inquiry was directed not to that question, but to the question whether the sixth to ninth respondents were then fit and proper persons to hold their licences.

78. Had there been nothing to raise an issue as to the character or reputation of the sixth to ninth respondents by reference to the defamation settlement, a decision to re-inquire into that matter might have been susceptible of challenge under s.5 of the ADJR Act on a number of grounds, including, under s.5(l)(h), that "there was no evidence or other material to justify the making of the decision". But that issue was raised again in 1988 when Mr Bond, during a television broadcast, stated, in relation to the settlement, that "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". That statement was apt to bring into issue the conduct of the sixth respondent, both as to the defamation settlement and as to the frankness exhibited in the 1986 inquiry. It was also apt to bring into issue the character and reputation of the seventh, eighth and ninth respondents as licensee companies associated with Mr Bond. Those matters having been brought into issue by a statement concerning the defamation settlement, it could not be said that the defamation settlement was irrelevant to the question of whether the sixth to ninth respondents were no longer fit and proper persons to hold their licences. Thus, it cannot be said that a finding as to the fitness and propriety of the sixth to ninth respondents made by reference to the conduct of Mr Bond in relation to the defamation settlement was an improper exercise of power.

Conclusion

79. The orders of the Full Court cannot be sustained on the grounds advanced in this Court on behalf of the respondents. Those grounds encompassed the grounds on which the respondents sought special leave to cross-appeal. The applications for special leave to cross-appeal must be refused with costs and the appeal must be allowed. The orders of the Full Court should be set aside and in lieu thereof it should be ordered that the applications for orders of review be dismissed with costs.