## Facts

- The Australian Broadcasting Authority (ABA) made an “Australian Content Standard” for commercial television under s 122 of the *Broadcasting Services Act 1992* (Cth) (BSA).
- The Standard required Australian programs to make up 50% of programming broadcast between 6:00 a.m. and midnight, increasing to 55% from the start of 1998.
- Section 160 of the BSA required the ABA, in performing its functions, to act consistently with Australia’s obligations under international conventions and agreements.
- Project Blue Sky Inc and other New Zealand film and television interests challenged the Standard, arguing it gave preferential treatment to Australian programs contrary to Australia’s obligations under the Protocol on Trade in Services to the Australia–New Zealand Closer Economic Relations Trade Agreement (CER Protocol), which required equal treatment and market access for the other country’s services and suppliers.
- At first instance, the Federal Court held the Standard invalid for inconsistency with the CER Protocol.
- The Full Court of the Federal Court reversed and upheld the Standard.
- The challengers appealed to the High Court of Australia.

## Issues

1. How should s 122 (power to make Australian content standards) be construed alongside s 160 (duty to act consistently with Australia’s international obligations)?
2. Was the Australian Content Standard inconsistent with Australia’s obligations under the CER Protocol?
3. If the ABA breached s 160 in making the Standard, did that noncompliance render the Standard invalid (or could it remain legally effective despite the breach)?
4. What is the correct approach to deciding when breach of a statutory requirement governing the exercise of power results in invalidity?

## Decision

- The High Court held that the Standard was inconsistent with the CER Protocol and that, in making it, the ABA failed to perform its functions in the manner required by s 160.
- The Court nevertheless held that this breach did not automatically make the Standard invalid; whether noncompliance results in invalidity depends on legislative purpose, assessed from the statute’s text, context, objects, and the consequences of invalidity.
- The Court rejected a mechanical “mandatory/directory” label as decisive, treating it instead as part of the broader inquiry into statutory purpose and intended consequences.
- The Court treated the appropriate response to the breach as turning on available remedies (including injunctive relief to restrain unlawful conduct), rather than treating the Standard as void in every case of noncompliance.

## Legal Principles

- Statutory meaning is determined from text, read in its context and in light of the statute as a whole; apparent conflicts between provisions should, so far as possible, be reconciled so the statute operates coherently.
- A statute is read on the basis that its provisions are intended to work together; courts should, where possible, construe provisions to avoid conflict while still giving effect to their language and purpose.
- Treaty obligations do not operate as domestic law merely because Australia has assumed them internationally; they matter domestically where Parliament has directed that decision-makers act consistently with them.
- Breach of a statutory requirement governing the exercise of power does not necessarily invalidate the resulting act or instrument; invalidity depends on whether the statute, properly construed, shows that Parliament intended invalidity to follow from noncompliance.
- In deciding whether noncompliance leads to invalidity, courts consider statutory language, subject matter, objects, and the practical consequences of treating the act as void, including the availability of other remedies.

## Conclusion

*Project Blue Sky* held that the ABA’s Australian content quota conflicted with Australia’s CER Protocol commitments and therefore involved a failure to perform statutory functions consistently with international obligations, but that breach did not, of itself, make the Standard invalid; the case is a leading authority on harmonious statutory construction and the purpose-based test for when statutory noncompliance results in invalidity.


Project Blue Sky v. Australian Broadcasting Authority, [1998] HCA 28 (1998)