• Samantha

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Statutory interpretation, Text and context, Principles. Facts; The Australian broadcasting authority (ABA) promulgated a standard which required that Australian broadcasting programs make up 50% of all TV broadcast between 6 am and 12 am. The power to make the standard came from section 122 of the broadcasting services act 1992 space (Cth), which provided that such standards were to relate to the Australian content of programs. Section 160 of the acts required that the ABA to perform its functions in a manner consistent with Australia’s international treaty obligations. One such treaty with New Zealand (the protocol) came into conflict with the standard, as it required the two countries to provide access to each other’s is markets on terms no less favourable than those enjoyed by their own citizens. Six New Zealand companies involved in the film and television industry, including project blue sky, brought a suit in the federal court against the ABA alleging that the standard was invalid because of its inconsistency with the protocol, in that it created a legal impediment that would adversely affect the capacity of the New Zealand film and television industry to compete equally with the Australian Industry in the market. The Federal Court declared the standard to be invalid to the extent of its inconsistency with the protocol. The ABA successfully appealed to the full court, which upheld the validity of the standard, and project blue sky appeal to the High Court.


Holding; A majority of the High Court accepted that the relevant clause of the standard was inconsistent with the protocol, finding that the combined operation of subsection 122 and 160 require the ABA to promulgate Australian content standards only to the extent that they were consistent with Australia’s international treaty obligations. However, this did not have the consequence that the standard was invalid, but rather that the ABA had breached the act and that interested persons could seek relief (such as prohibitory injunction) in relation to its unlawful conduct.


The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined by reference to the language of the instrument viewed as a whole… The process of construction must always begin by examining the context of the provision that is being construed.


A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court to determine which is the leading provision and which the subordinate provision, and which must give way to the other… furthermore, a court considering a statutory provision must strive to give meaning to every word of the provision. (McHugh, Gummow, Kirby and Hayne JJ at 381–2).


However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always (at 834).


An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no affect. Whether it depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition… As ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition (at 388-9).