Project Blue Sky v. Australian Broadcasting Authority

The Australian Broadcasting Authority (ABA) (defendant) announced an Australian Content Standard that required Australian programs to constitute 50 percent (rising to 55 percent from the beginning of 1998) of programming broadcasts made between 6:00 a.m. and midnight. The power to create the Australian Content Standard came from Section 122 of the Broadcasting Services Act of 1992, which required the ABA to create standards for the Australian content of programs. Section 160 of the act required the ABA to perform its functions in a manner consistent with Australia’s obligations under international conventions or under its agreements with foreign countries. Following the ABA’s announcement of the Australian Content Standard, New Zealand companies involved in the film and television industry, including Project Blue Sky (Blue Sky) (plaintiff), brought suit against the ABA, arguing the Australian Content Standard was invalid because it gave preference to Australian television programs in contravention of Australia’s obligations under the Protocol on Trade in Services to the Australian New Zealand Closer Economic Relations Trade Agreement (protocol), which required both countries to grant the other equal treatment and access to markets. The trial court declared the Australian Content Standard invalid because it was inconsistent with the protocol. The appellate court reversed, however, and upheld the ABA’s Australian Content Standard. Blue Sky appealed to the High Court of Australia.