48
S.C. 128\02
contention is that the Broadcasting Authority, as constituted in terms of section 4,
does not provide sufficient independence for that body and consequently is
unconstitutional.
Athukorale supra.
In support of this proposition Mr de Bourbon cited the case of
I accept that Athukorale’s case, supra is authority for the
proposition that a regulating authority that is unduly dependent on the government is
unconstitutional.
In determining whether a provision creates a dependent or
independent regulating authority the standard three tier test enunciated in
Nyambirayi’s case, supra, provides no guidance as that test does not deal with
independence or lack of it of a regulating authority.
A comparison of this section
with provisions found in other jurisdictions is therefore instructive.
This section, as already pointed out, is very similar to section 1(2) of
the British Broadcasting Act [Chapter 42] of 1990 which provides that the
Independent Television Commission shall consist of a Chairman and a deputy
Chairman appointed by the Secretary of State and such other members appointed by
the Secretary of State, not being less than eight nor more than ten as he may, from
time to time, determine.
Similarly the Australian Broadcasting Services Act 1992
creates the Australian Broadcasting Authority as the licensing and regulating
authority.
The Australian Broadcasting Authority consists of seven members all
appointed by the Governor-General without any reference to any other body or
persons outside governmental structures. In Australia the Governor-General and the
Minister for Communications, Information, Technology and Arts have other
controlling powers that I have already adverted to in the analysis of the Australian Act
above.
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