Little Case Note - Project Blue Sky v ABA 1998 HCA 28 - YouTube

The Australian Broadcasting Authority  regulates commercial television broadcasts  

in Australia.

In December 1995, it published the  Australian Content Standard, clause 9 of which,  

from 1998 onwards, sets a requirement that  Australian programs make up at least 55%  

of all television broadcasts between 6.00am and  midnight. A broadcaster in Australia must comply  

with this requirement if it wants to maintain  its commercial television broadcasting licence.

The power of the ABA to make the Australian  Content Standard came from section 122 of the  

Broadcasting Services Act 1992 (Cth),  which reads that such standards were  

“to relate to the Australian content of  programs”. Elsewhere in the legislation,  

section 160 required the ABA to perform its  functions in a manner consistent with Australia’s  

international treaty obligations. One of these  treaties was the Australia New Zealand Closer  

Economic Relations Trade Agreement and the Trade  in Services Protocol to that agreement. Article  

4 of the Protocol required Australia and New  Zealand to grant access rights to each other’s  

market no less favourable than those allowed to  their own people and services provided by them.

Consequently, the Trade in Services Protocol came  into conflict with clause 9 of the Australian  

Content Standard, since Australian programs took  up more airtime than non-Australian programs,  

including those from New Zealand. This created  a legal impediment that would disadvantage the  

New Zealand film and television industry  in competing equally with the Australian  

industry in the Australian market. Six  New Zealand film and television companies,  

including Project Blue Sky Inc., brought an  action in the Federal Court against the ABA,  

arguing that the Australian Content Standard  was invalid because of its inconsistency with  

the Trade in Services Protocol. Davies J of the  Federal Court declared the Australian Content  

Standard to be invalid to the extent that it was  inconsistent with the Protocol. The ABA appealed  

to the Full Court of the Federal Court, which set  aside Davies J’ ruling and upheld the validity of  

the Australian Content Standard. Project  Blue Sky Inc. appealed to the High Court.

In a majority decision, the High Court reasoned  that statutory construction is to construe the  

relevant provision so that it is consistent with  the language and purpose of all the provisions of  

the legislation. The meaning of the provision must  be determined “by reference to the language of the  

instrument viewed as a whole”. Where conflict  appears to arise from the language of different  

provisions, the conflict must be alleviated, as  much as possible, by adjusting the meaning of the  

competing provisions which will best give effect  to the purpose and words of those provisions  

whilst maintaining the unity of all the statutory  provisions. Reconciling conflicting provisions  

will often require the court “to determine which  one is the leading provision and the subordinate  

provision, and which must give way to the other. However, the High Court also acknowledged  

that it is the duty of a court to give the  words of a statutory provision the meaning  

that Parliament is taken to have intended  them to have. In most cases, that meaning,  

that is the meaning in law, will be the  ordinary grammatical meaning of the provision.

In the present case, the requirement  under section 160 to act consistently  

with Australia’s international treaty obligations  was a condition regulating the ABA’s ability to  

exercise its statutory power under section  122 of the Broadcasting Services Act. The  

High Court ruled that an act done in breach  of a condition regulating the exercise of a  

statutory power is not necessarily invalid and  of no effect. The question is whether there was  

a legislative purpose to invalidate any act that  fails to comply with the condition, which can be  

ascertained by reference to the language of the  legislation, its subject matter and objects, and  

the consequences for the parties if every act done  in breach of the condition is held to be invalid.

Section 160 concerned the policy of pursuing the  goals of Australia’s international obligations,  

which are often expressed in broad language  - the language described goals to be achieved  

rather than rules to be obeyed. Reading the  two provisions together, the ABA is required  

to promote ‘Australian content’ in its standards  only to the extent that they were consistent with  

Australia’s international treaty obligations.  However, this did not mean that the Australian  

Content Standard was invalid, instead the ABA  breached section 160. People affected by this  

breach will have cause to seek relief, such  as injunction to prevent the unlawful conduct.

The appeal was allowed and the High  Court declared that clause 9 of the  

Australian Content Standard was unlawfully made.