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    Project Blue Sky Case Brief

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    hismajestyluke
    A casenote on the important Australian High Court decision on whether an unlawful breach produces invalidity

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    Project Blue Sky Case Brief

    Uploaded by

    hismajestyluke
    2K views2 pages
    A casenote on the important Australian High Court decision on whether an unlawful breach produces invalidity

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    © © All Rights Reserved

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    A casenote on the important Australian High Court decision on whether an unlawful breach produces invalidity

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    2K views2 pages

    Project Blue Sky Case Brief

    Uploaded by

    hismajestyluke
    A casenote on the important Australian High Court decision on whether an unlawful breach produces invalidity

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    of 2

    Project Blue Sky Case Brief

    Project Blue Sky Inc v Australian Broadcasting Authority


    (1998) 194 CLR 335
    High Court of Australia
    Material Facts:
    Under the Broadcasting Services Act 1992 (Cth) s 160 the Australian
    Broadcasting Authority (ABA) was given authority to develop codes and practice
    and program standards. The ABA implemented a local content standard,
    ensuring that television would have a minimum percentage of shows produced in
    Australia. Project Blue Sky, a New Zealand company, challenged the validity of
    the standard on the basis that the ABA had not performed its obligations under a
    trade protocol which provided that New Zealand producers would not be treated
    in a manner less favourable than Australian producers. The High Court held that
    the standard was in breach the protocol, but that it was not invalid.
    Procedural History:
    The case was first heard in 1996 in the Federal court by a single judge who
    adjourned the case to be heard by the full court. In 1996 the Full Court of the
    Federal Court heard the case and decided in favour of the ABA. Project Blue Sky
    then applied for special leave to appeal to the High Court which was granted.
    Issues to be determined:
    1. Is a transmission quota for programs of a particular description a standard?
    2. What is the meaning of the Australian content of programs?
    3. Is the Australian Content Standard consistent with s 160(d)?
    4. If not, is the Australian Content Standard valid?
    Holding on each issue:
    1. That a transmission quota for programs of a particular description are and can
    be defined as a standard.
    Ratio: As the standard must relate to the Australian content of programs, a
    standard to be observed by broadcasting licensees is a standard which is
    calculated to ensure that they broadcast programs of Australian content. A
    transmission quota for programs is a standard of that kind.
    2. The meaning of the Australian content of programs was defined with a
    legalist approach giving the phrase a much wider scope than its literal meaning.
    It was based on the program having an Australian basis and provenance to be
    classified as Australian as well as having the majority of its cast and production
    crew of Australian extraction
    Ratio: at 26 The provisions of the Act uniformly point to one meaning of "the
    Australian content of programs", namely, the Australian matter contained in a
    program. There is neither historical nor textual foundation for the proposition
    that the term can be used to classify programs by reference to their provenance.

    3. The Australian Content Standard was held by the Court to be invalid as it could
    not be reconciled with s 160.
    Ratio: at 31 Given the hypothesis, I would respectfully agree. And, as Australian
    program makers are given an advantage over the New Zealand program makers
    by cll 7 and 9 of the Australian Content Standard, I would hold those clauses to
    be inconsistent with s 160(d).
    4. The Court held that the Australian Content Standard was still valid but only up
    to the point where it did not conflict with the provisions in s 160.
    Ratio: at 42 If the ABA purports to exercise its powers in breach of the injunction
    contained in s 122(4) and s 160(d), to that extent the purported exercise of the
    power is invalid and the purported standard (or the non-conforming provisions
    thereof) is invalid and of no effect. The standard cannot be saved by some notion
    that s 160(d) is "directory".
    Orders:
    1. The appeal be allowed and the orders made by Davies J set aside.
    2. The Court declares that cl 9 of the Australian Content Standard (the
    Standard) determined by the Appellant on 15 December 1995 was
    unlawfully made.
    3. THE Appellant pay the costs of the appeal and of the proceedings before
    Davies J.

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