Re Rothmans of Pall Mall (Australia) Limited; the Benson & Hedges

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Re Rothmans of Pall Mall (Australia) Limited; the Benson & Hedges Company Pty Limited; the Benson & Hedges Company Limited and the Australian Ballet Foundation; Rothmans of Pall Mall (Australia) Limited and NSW Rugby League Limited v the Australian [1985] FCA 84 (20 March 1985)

FEDERAL COURT OF AUSTRALIA

Re: ROTHMANS OF PALL MALL (AUSTRALIA) LIMITED; THE BENSON & HEDGES COMPANY PTY LIMITED; THE BENSON & HEDGES COMPANY LIMITED AND THE AUSTRALIAN BALLET FOUNDATION; ROTHMANS OF PALL MALL (AUSTRALIA) LIMITED AND N.S.W. RUGBY LEAGUE LIMITED And: THE AUSTRALIAN BROADCASTING TRIBUNAL Nos. G.377,378,379,380 Broadcasting and Television [1985] FCA 91; 58 ALR 675

COURT

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION Bowen C.J. Toohey J. Wilcox J.

CATCHWORDS

Broadcasting and Television - Prohibition on television transmission of advertisements for cigarettes - Meaning of 'advertisement' - Relevance of subjective intent of producer - Significance of the fact that part of the material has no commercial message - Relevance of absence of express reference to cigarettes - Meaning of advertisement 'for' cigarettes - Necessity for payment to person transmitting material - Necessity for consent of originator of material to the televising of the material - Meaning of 'incidental' transmission - Whether transmission of display dance before match was incidental to televising of football match.

Administrative Law - Judicial Review - Nature of decision attracting review - Comment on procedural matters. Administrative Decisions (Judicial Review) Act 1977 s.5 Broadcasting and Television Act 1942 s.100(5A), (10)

Lamb v Moss [1983] FCA 254; (1983) 49 ALR 533 referred to; Commissioner of Taxation v Rotary Offset Press Pty Limited (1971) 45 ALJR 518; (1972) 46 ALJR 609 applied; Ex parte Tziniolis; re Harvey (1959) 76 WN (NSW) 680 approved and applied.

HEARING

SYDNEY 20:3:1985

ORDER

1. The appeal be dismissed.

2. The appellant pay to the respondent its costs of the appeal

DECISION

There are before the Court four appeals which have, by consent, been heard together. Each appeal calls into question a decision of Fox J, made in relation to an application for review under the Administrative Decisions (Judicial Review) Act 1977, upholding - although in one case in part only - the legal validity of a decision by the respondent Tribunal that particular material, which had in fact been transmitted by one or more commercial television licensees, was material forbidden to be televised by s.100(5A) of the Broadcasting and Television Act 1942.

2. Section 100, in so far as it is relevant to the arguments in these appeals, reads as follows:

"100(1) Subject to this Act, a licensee may broadcast or televise advertisements.

(2) A licensee intending to broadcast or televise advertisements shall publish particulars of his advertising charges.

(3) A licensee shall not, without reasonable cause, discriminate against any person applying for the use of his advertising service.

(4) A licensee shall comply with such standards as the Tribunal determines in relation to the broadcasting or televising of advertisements. (5) A licensee shall not broadcast or televise advertisements on a Sunday except in such manner and in accordance with such conditions as the Tribunal determines.

(5A) A licensee shall not broadcast or televise an advertisement for, or for the smoking of, cigarettes or cigarette tobacco.

(6) A licensee shall not broadcast or televise an advertisement relating to a medicine unless the text of the proposed advertisement has been approved by the Director-General of Health or, on appeal to the Minister under this section, by the Minister.

. . .

(10) A reference in sub-section (5), (5A), or (6) to the broadcasting or televising of advertisements or of an advertisement shall be read as not including a reference to the broadcasting or televising of matter of an advertising character as an accidental or incidental accompaniment of the broadcasting or televising of other matter in circumstances in which the licensee does not receive payment or other valuable consideration for broadcasting or televising the advertising matter."

3. On 29 December 1983 the Tribunal issued a policy statement (POS 07) in which it expressed its views upon the operation of sub-sections (5A) and (10) of s.100. The statement set out the terms of those sub-sections and went on: "2. AN ADVERTISEMENT FOR, OR FOR THE SMOKING OF, CIGARETTES OR CIGARETTE TOBACCO

2.1 In deciding whether an item breaches sub-section 100(5A) of the Act, two questions must be asked:

.. is the item an advertisement? .. if so, is it an advertisement for, or for the smoking of, cigarettes or cigarette tobacco?

2.2 An Advertisement: Sub-section 100(5A) uses the word 'advertisement', but nowhere in the Act is it defined. For the purposes of this sub-section, the Tribunal considers that 'advertisement' means: matter which draws the attention of the public, or a segment thereof, to a product, service, person, organisation or line of conduct in a manner calculated to promote or oppose, directly or indirectly, that product, service, person, organisation or line of conduct.

It should be noted that this definition will not normally catch bona fide discussion or reporting of public affairs because, in general, such matter is not drawn to the attention of the public in a manner calculated to promote or oppose its subject.

2.3 An advertisement may take the form of, among other things, sound effects, music or spoken words and/or the visual display of names, logos or slogans, whether occupying full screen, or in titles of events, in backdrops or billboards, or on items such as clothing, or vehicles.

2.4 For, or for the Smoking of, Cigarettes or Cigarette Tobacco: The Act is concerned only with advertisements which are "for" cigarettes or cigarette smoking. Advertisements opposing cigarettes or cigarette smoking are not prohibited. In deciding whether an advertisement is for, or for the smoking of, cigarettes or cigarette tobacco, the Tribunal will apply the following test: would a reasonable person regard the advertisement, in all the circumstances, as seeking, directly or indirectly, to promote cigarettes or cigarette tobacco or to encourage the smoking of cigarettes or cigarette tobacco.

Whether the advertisement displays or mentions the name of a cigarette brand or manufacturer is not the key question. The proper application of the test may mean that an advertisement which does not display or mention a brand name or manufacturer is nevertheless prohibited; on the other hand, an advertisement which does mention a brand name or manufacturer may not be prohibited.

2.5 The Tribunal will pay particular attention to advertisements which may indirectly promote cigarettes or cigarette smoking in the course of promoting other products, whether marketed by a cigarette manufacturer or not. . . .

3. ACCIDENTAL OR INCIDENTAL ADVERTISING

3.1 Sub-section 100(10) of the Act provides an exception from sub-section 100(5A) in circumstances where 'matter of an advertising character' - (a) is an 'accidental or incidental accompaniment' of other transmitted matter; and (b) 'the licensee does not receive payment or other valuable consideration' for transmitting it.

3.2 Matter of an Advertising Character: The use of this phrase, rather than the word 'advertisement', makes it clear that it is intended to apply to a wide range of matter apart from discrete advertisements placed directly with a licensee by an advertiser. However, the test of what constitutes 'matter of an advertising character' is otherwise no different to the test described in paragraphs 2.2 and 2.3.

3.3 Accidental or Incidental Accompaniment: The transmission of advertising matter, relating to cigarettes or cigarette smoking in the course of transmitting other matter will not be 'accidental' if, in the circumstances of the transmission, it is more likely than not that -

(a) the licensee intended to promote a particular brand of cigarette, or cigarette tobacco, or cigarette smoking in general; or

(b) a reasonable person would have foreseen that advertising matter for cigarettes, cigarette tobacco or cigarette smoking would be transmitted . . .

3.4 Where advertising matter for cigarettes is not an accidental accompaniment of other matter, it may still be an 'incidental accompaniment' and thus permissible to transmit. Advertising matter which forms an integral part of the principal subject of the transmission will not be regarded as an 'incidental accompaniment'. Matter will only be regarded as an 'incidental accompaniment' if it is subordinate to the main matter being transmitted. Thus, if advertising matter for cigarettes dominates or forms a substantial feature of a particular radio or television program, scene or segment it will not be regarded by the Tribunal as an 'incidental accompaniment' of that program, scene or segment. Ultimately, this is a question of judgement which must be made having regard to the facts of a particular case. It is not possible to provide any precise or comprehensive test on the matter. However, emphasis, tone and frequency of repetition of the advertising matter in question are relevant factors . . .

4. ENFORCEMENT

4.1 It is an offence under section 132 of the Act to fail to comply with sub-section 100(5A), rendering a licensee liable to a fine not exceeding $10,000.

4.2 By virtue of section 129 of the Act, sub-section 100(5A) is a condition of a licence, any breaches will be taken into account at the next occasion on which the performance of the licensee is reviewed: see sub-paragraphs 86(11B)(c)(iii) and 88(1)(a)(iii).

4.3 This Policy Statement is intended to avoid the need for more specific action. However, the Tribunal points out that failure to comply with the letter and the spirit of sub-sections 100(5A) and (10) may lead to the determination of Standards relating to incidental cigarette advertising." 4. On 4 March 1984 the Tribunal issued a News Release announcing several decisions made by it in the application of its policy. Four of the cases referred to in the release - Benson & Hedges cricket advertisement, Benson & Hedges ballet advertisement, the advertisements for "Aussie Assault" and the telecast of the programme of the 1982 Rugby League Grand Final - have given rise to the four matters before the Court. Omitting formal parts, the News Release read: "CIGARETTE ADVERTISEMENTS ON TELEVISION

The Australian Broadcasting Tribunal says that a number of television advertisements it has examined do not comply with the law banning cigarette advertising on radio and television.

The Tribunal's decisions on some advertisements, released today, find that television advertisements for Redhead Matches (Strike Up a Friendship), Benson & Hedges Cricket (Field of Battle), the Australian Ballet (sponsored by Benson & Hedges) and for the cinema film 'Aussie Assault' do not comply with sub-section 100(5A) of the Broadcasting and Television Act which prohibits the broadcasting of advertisements for cigarettes or smoking.

The Tribunal applies the prohibition of cigarette advertisements, which was passed by the Parliament in 1976, to particular cases. It has no power to make the prohibition stricter or more lenient. These decisions are an application of the 1976 Act, and do not make any new law.

In the case of Redheads Matches, the Tribunal found:

' .. the advertisement concerns the use of matches to light cigarettes ... and the cigarette smoking, and the lighting of the partner's cigarette is presented as a central feature of the cosy romantic atmosphere.'

Of the Benson & Hedges cricket item, the Tribunal says: 'An advertisement placed by Benson & Hedges (rather than the relevant sporting body) which gives as much prominence to promoting the Benson & Hedges Company as this does can reasonably be assumed to be intended to promote ... the only product universally identifiable with that company, namely cigarettes.'

Similar reasons applied to an advertisement for the Australian Ballet, featuring sponsorship by Benson & Hedges.

The Tribunal found the use of insets featuring the Winfield name in advertisements for the cinema film 'Aussie Assault':

'... is apparently intended to promote, or attract goodwill to, the name Winfield, and, by extension, the only product bearing the Winfield name.'

The Tribunal found the program, televised by ATN-7 Sydney, of the 1982 Rugby League Grand Final, contained matter of an advertising character:

'Directly alongside the field, some distance on from the perimeter, were a large number of A-frames, bearing the slogan 'Anyhow have a Winfield 25s' ... the Winfield A-frames were apparently placed so as to ensure maximum television exposure.

... In the Tribunal's opinion, the dance display (featuring dancers dressed in Winfield colours waving flags featuring the Winfield sign) was, taken as a whole, also advertising matter for Winfield cigarettes ...' A radio advertisement for Benson & Hedges World Series Cricket was also found not to contravene the ban because:

'...The mere mention of the name Benson & Hedges in the absence of additional promotional matter is insufficient to lead to the conclusion that the advertisement seeks to promote cigarettes.' ...

Late last year the Tribunal issued a Policy Statement on Advertising Matter Related to Cigarettes or Cigarette Tobacco. These are the first decisions to follow the determination of policy on the application of the law.

Adherence to the provisions of the Act is a condition of licence for all commercial and public radio and television stations. Failure to observe the provisions of the Act will be considered by the Tribunal as part of the regular review of each licence, when licensees concerned will have an opportunity to present evidence and submissions on the circumstances surrounding the broadcasts before the Tribunal makes any findings with respect to the licences . . .'

5. It is desirable to note the status of the Tribunal's decisions. The powers and functions of the Tribunal are directed towards the regulation, in the public interest, of broadcasting and television services. The Tribunal has no jurisdiction in relation to the making or presentation, otherwise than on radio or television, of cigarette advertisements. Section 100(5A) is directed to licensees of commercial broadcasting stations and commercial television stations. Their licences are deemed to have been granted subject, inter alia, to that provision (s.129). Contravention of the provision is an offence (s.132). Any decision of the Tribunal to the effect that given material constitutes an advertisement for, or for the smoking of, cigarettes or cigarette tobacco may be made directly effective only against a licensee, and then only if the material has been broadcast or televised. The decisions announced on 4 March 1984 were not decisions which visited any immediate disadvantage upon licensees. They could have such an effect only if they were taken into account adversely to a licensee in relation to the renewal - s.86(11B)(c)(iii) - or suspension or revocation - s.88(1)(iii) - of its licence or in proceedings for an offence. But, in the meantime, the Tribunal's decisions are likely to deter licensees from transmitting the subject, or similar, material. In that way the decisions adversely affect the interests of the producers of the material, the two appellant cigarette manufacturers, The Benson & Hedges Company Pty Limited ("Benson & Hedges") and Rothmans of Pall Mall (Australia) Limited ("Rothmans") and of the two appellant organizations, the Australian Ballet Foundation and the New South Wales Rugby League Limited, to whose activities two of the decisions referred. Under those circumstances it is appropriate that the appellants have the opportunity to challenge the correctness in law of those decisions. Fortunately for that view, the word "decision" in s.3 of the Administrative Decisions (Judicial Review) Act, and thus in the Act generally, has been interpreted sufficiently widely for this to be possible. In Lamb v Moss [1983] FCA 254; (1983) 49 ALR 533 at p 556 a Full Court of this Court said: "In our opinion, there is no limitation, implied or otherwise, which restricts the class of decision which may be reviewed to decisions which finally determine rights or obligations or which may be said to have an ultimate or operative effect." 6. It should be observed that no licensee was a party to any of the proceedings before the primary Judge. His Honour raised with the parties the absence of licensees but no objection was taken on that ground nor was his Honour invited to secure their presence, a course which was open to him under s.12 of the Administrative Decisions (Judicial Review) Act. Moreover, no claim was made by any of the appellants, before Fox J or before us, that a breach of the rules of natural justice had occurred in connection with the making of the decision. There are a number of provisions in the Broadcasting and Television Act which relate to the manner of exercise by the Tribunal of its powers: see, for example, s.17 empowering the Tribunal to "make such orders, give such directions and do all such other things as it thinks fit", s.25(2) which provides that the Tribunal is not bound by legal rules of evidence and that it may inform itself on any matter in such manner as it thinks fit and s.80 which requires the Tribunal, in relation to Part III - Licences, to observe the rules of natural justice. However the application of such provisions was not debated; and neither were the questions whether the Tribunal should have given notice to each advertiser and licensee, with an opportunity to be heard, or whether there were other procedures to be followed by the Tribunal before making a decision. Consequently, we say nothing about them.

7. Before turning to the detail of each decision, it is convenient to discuss some matters of principle which arise out of s.100 and which were argued before us. The first question relates to the meaning of the phrase "advertisement for cigarettes" in s.100(5A). Counsel for the appellants presented no argument to deny that, in ordinary parlance, the word "advertisement", standing alone, has the meaning which the Tribunal attributed to it in cl. 2.2 of its Policy Statement. They contended, however, that the question whether particular material constituted an advertisement for cigarettes, or for smoking, must be determined objectively; the question being whether, in its essential character and nature and on its face, the material was an advertisement for cigarettes or for smoking. They criticized the "reasonable person" test referred to in cl 2.4 of the Tribunal's Policy Statement. Counsel referred to Deputy Commissioner of Taxation v Rotary Offset Press Pty Limited (1971) 45 ALJR 518, a case in which Gibbs J had to determine, in the context of a claim for exemption from sales tax, whether a periodical known as "The Realtor" constituted "advertising matter". At p 522 his Honour said:

"The question whether a periodical is 'advertising matter' seems to me to depend on whether the periodical, viewed objectively and without regard to the actual intentions of those publishing it, answers that description. In other words, if the periodical on its face appears to be designed to promote the sale of property by means of public announcement that it is for sale, and by giving a description of its qualities and a statement of its price, it is 'advertising matter' notwithstanding that its publication was, in fact, promoted not only by the desire to sell the property, but for other purposes as well. Of course, the publication has to be viewed in the light of those surrounding circumstances which are rendered admissible by the ordinary rules governing the admissibility of extrinsic evidence for the purposes of construing a document. It, therefore, would not follow, to take an example touched upon in the course of argument, that a reproduction, for historical purposes, of an advertisement originally published in times past would be 'advertising matter'. It was submitted on behalf of the defendant that to say that a publication is 'advertising matter' one must be able to say that it is 'advertising matter as such' or 'simply advertising matter'. If that be so, those descriptions could rightly be applied to the whole of the publication, with the possible exception of the articles and answers to readers, whatever purpose may, in fact, have actuated the minds of those who published the advertisements. In my opinion, therefore, the greater part (about 94% on the average) of the contents of 'The Realtor' consisted of announcements which clearly can be described as 'advertising matter'. Such things as the 'fill ins', indexes and mastheads were obviously merely ancillary to the publication as a whole and did not alter its character. However there was in most issues some material - as I have said, constituting on the average only 1.35% of the total contents - which viewed alone could not be referred to as 'advertising matter', namely, the articles and the answers to reader's questions. However, it seems to me that a publication does not cease to be properly described as 'advertising matter' because it comprises some material that does not directly promote the transactions which the advertisements seek to bring about. With the increasing sophistication of modern advertising methods, much 'advertising matter' contains some material which viewed alone does not appear to be intended to promote the business of the advertiser. When the publication is looked at as a whole, it seems to me that the articles and answers to questions are, like the 'fill ins', indexes and mastheads, merely ancillary to the whole production and do not alter its character. The question is one of fact and degree and, indeed, perhaps almost one of impression." 8. His Honour's reasoning was approved, on appeal, by the Full High Court: see Rotary Offset Press Pty Limited v Deputy Commissioner of Taxation (1972) 46 ALJR 609. The approach taken in that case is equally apposite to a decision by the Tribunal on the question whether particular matter falls within s.100(5A). That issue is to be objectively determined; the question being whether the material, on its face and without reference to the actual intentions of those concerned with its production or transmission, appears to be designed or calculated to draw public attention to, or to promote the sale or use of, cigarettes or to promote the practice of smoking. It does not matter that some part or parts of the total material do not, in itself or in themselves, answer the description of an advertisement for cigarettes or for smoking. The question is to be determined by reference to the nature of the material, considered as a whole. It is, of course, a commonplace of cinematic and television advertising that a significant proportion of the total footage is material free of any discernible commercial message, being designed primarily to attract and develop viewer interest. The expressly commercial content is often a small proportion of the whole.

9. As Gibbs J made clear, material which otherwise answers the description of being "advertising material" - or in the instant cases "an advertisement for, or for the smoking of, cigarettes or cigarette tobacco" - does not lose its character as such merely because it is calculated to serve other purposes as well. Advertisements are often designed to entertain or to amuse, sometimes to instruct. Material does not cease to be an advertisement of a relevant type simply because it is calculated to achieve such ends or because some viewers may value it more for these qualities than for its commercial message. Similarly, many advertisements are calculated - and in a subjective sense intended - to enhance the general reputation or, to use the current jargon, "corporate image" of the advertiser. The fact that a particular advertisement may have that propensity, or that it may be produced with that intention, does not preclude its characterization - if it meets the test set out above - as an advertisement for a particular product or practice. 10. Several subsidiary matters, in relation to the meaning of the phrase used in s.100(5A), were argued on behalf of the appellants. First, it was said to be a requirement of the sub-section that cigarettes, cigarette tobacco or the practice of smoking be expressly referred to in the advertisement. Thus, it was said, material which included a reference to the name of a brand of cigarettes but which made no use of the word "cigarette" and which contained no picture of a cigarette could not, as a matter of law, constitute an advertisement for cigarettes. We are unable to agree. It is, no doubt, true that the more explicit the reference to cigarettes the more readily it may be concluded, by the fact finding body, that the material constitutes an advertisement for cigarettes. But methods of human communication are almost infinitely various, and often extremely subtle. A word, a picture, or a fragment of music may be capable of conveying a message, through association of ideas, to an informed audience. For example, an advertising jingle may have become so well known to the people of a particular place, or perhaps of a particular generation, that its presentation to those people - even without words or pictorial matter - is likely to cause all or many of those people instantly to bring to mind the product with which it has become associated. See, for example, the ice cream van chimes held to be played "for the purpose of advertising" in Reynolds v John (1956) 1 QB 650. Similarly in relation to names; a corporate name may be so closely identified with a product that the mention of the name brings the product to mind. It does not follow, of course, that every presentation of the musical jingle or use of the corporate name will constitute an advertisement for the product; that question must be answered by reference to the circumstances of the particular case. But there is no warrant for asserting, contrary to human experience, that matter in which there is no express reference to a product is incapable of fulfilling the essential function of an advertisement for that product: the drawing of public attention to, or the promoting of the sale or consumption of, that product. We agree with a comment of Moffitt AJ in ex parte Tziniolis; re Harvey (1959) 76 WN (NSW) 680, a case concerning advertising by an unregistered medical practitioner in which, at p 689, his Honour said:

"It is well known that the drafting of an advertisement is a somewhat different process and requires a different skill from drafting, say, a conveyance, because the former is primarily concerned with the impression or inference that will be gained by the average reader or observer who will not be expected to have any special or technical knowledge of the subject matter of the advertisement. An advertisement may therefore advertise a matter which it does not positively state, but which the advertiser intends the reader to understand, and which the reader, by reason of the terms used in the framing of the advertisement, does understand, and in that sense that matter is advertised." 11. Secondly, counsel referred to the use in subs. (5A) of the preposition "for". They argued that its meaning was narrower than "in relation to" and suggested that it may mean "for the promotion of". We agree that it is narrower, and it appears from the Parliamentary history of the legislation which added subss. (5A) and (10) - to which we were referred - that this was deliberate. Parliament apparently was concerned not to prohibit the transmission of material designed to persuade viewers against the use of cigarettes. Particularly under those circumstances, the word "for" should be read as meaning "in favour of" or "on behalf of". The prohibition is against advertisements tending to promote or support cigarettes and their use, and not against those of the contrary tendency.

12. Thirdly, counsel for the appellants argued that it was inherent in the use of the word "advertisement" that the person transmitting the material - in this case the licensee - should have done so for payment or other reward. They called attention to s.100(2) and (3), subsections which clearly have in mind the transmission of advertisements for reward. No doubt it is usual for those publishing advertisements, including advertisements on commercial television stations, to seek reward for their services. But exceptions readily come to mind; for example publicity for products or events associated with a television program and program and community service announcements. In its ordinary meaning the word "advertisement" may, or may not, be used to refer only to material transmitted for reward. As always, the matter must be resolved by reference to the context in which it is used and such indications of the legislative intention as may be available. In the present case, there is little room for doubt. Sub-section (10) was added to s.100 by the same section of the amending Act as was subs. (5A) and for the purpose of providing an exception to subs. (5A), amongst other sub-sections. That sub-section exempts from the operation of subs. (5A) the accidental or incidental televising of advertising matter "in circumstances in which the licensee does not receive payment or other valuable consideration" for televising the advertising matter. The reference to payment is a clear indication that Parliament had in mind that a licensee may televise advertising matter other than for payment or other valuable consideration; to be excluded from the operation of subs. (5A) the "advertisement" must be transmitted both accidentally, or incidentally, and without receipt of payment.

13. Finally, counsel argued that - even if payment is not necessary - material cannot amount to an "advertisement", within the meaning of subs. (5A), unless it is televised pursuant to some consensual arrangement between the television station and the "advertiser", the originator of the images and sounds which are transmitted. There are obvious reasons why, in the overwhelming majority of cases, there will be an agreement or understanding between those parties. The television licensee will usually wish to be paid. Even if it is prepared to transmit without payment it may need to obtain from the producer the necessary film or video material; and it will usually be concerned to obtain permission to televise so as to avoid any infringement of copyright. But cases may be imagined in which, speaking in practical terms, it is possible for a televiser to transmit images and sounds answering the definition of an "advertisement" without the knowledge or consent of the originator of that material. For example, a television crew may film for transmission an advertisement displayed on a billboard or in a magazine, a television recordist may capture on his or her soundtrack an advertisement spoken over a public address system or on radio. Upon transmission of that film or sound, the licensee would properly be said to have televised the advertisement.

14. We should add that there is no reason to doubt that, in relation to any of the four matters to be discussed, the relevant cigarette manufacturer actively promoted the transmission of the relevant material and that the relevant television licensees, directly or indirectly, accepted that material for transmission. In the case of the Benson & Hedges cricket advertisement - according to the respondent's News Release - the advertisement was placed by Benson & Hedges with the television stations. In the case of the Benson& Hedges ballet advertisement the advertisement was placed by the Australian Ballet. However, there is in evidence a letter dated 26 January 1984 from the company to the Australian Ballet evidencing a sponsorship agreement for the 1984 season. This agreement provides for the payment of a sponsorship fee in return for certain benefits. The benefits include that the company:

"Will be accredited as the major sponsor in all promotional literature and media advertising initiated by the Australian Ballet during the 1984 season. Such accreditation will also be included in a major media campaign to be undertaken by the Australian Ballet in order to maximise subscription bookings and attendances . . . The wording and style of accreditation will be mutually agreed upon and the Benson and Hedges Company reserves the right to approve all promotional and media advertising prior to release". 15. The agreement provides for termination, with a proportionate reduction in the sponsorship fee, in the event of legislation "which has the effect of banning or restricting The Australian Ballet from accrediting The Benson and Hedges Company sponsorship in any or all of The Australian Ballet's promotional literature or media advertising". Given the agreed minimum expenditure on advertising - an amount which is equal to three quarters of the sponsorship fee - it is clear that, inter alia, television advertising was contemplated. It may accurately be said, therefore, that in placing the subject advertising with television stations the Australian Ballet was acting on behalf of Benson & Hedges as well as itself.

16. A similar position applies to the advertisements for "Aussie Assault". There is in evidence a letter evidencing an agreement by Rothmans to sponsor this film. In return for a cash payment both the film itself and all advertising for the film is to contain the Winfield identification. The television advertisements were, therefore, intended to promote Winfield cigarettes as well as the film. The position in relation to the Rugby League Grand Final is more complex. We will refer to it later.

17. Against the background of these general observations we turn to the facts relating to each of the four matters before the Court. It is convenient to deal with them in the order in which they were mentioned in the respondent's News Release quoted above.

18. Appeal G.378 is brought by Benson & Hedges. It concerns material in a television film clip identified by the title "Test Cricket - Field of Battle". The film, beyond contest, constitutes an advertisement. The question is whether it was open to the Tribunal to decide - as it did - that the advertisement constitutes an advertisement for cigarettes. The decision of the Tribunal included the following:

"Description: Two medieval knights are shown in a slow motion sword fight. The visual content progresses to show cricketers in the same stylised fashion, with the voice of track echoing the 'field of battle' motif. The final part of the advertisement includes extracts from previous Test matches (including Benson and Hedges hoardings), and concludes with a final shot of the Benson and Hedges coat of arms and distinctly lettered name in gold, on black, together with a voice over stating 'proudly sponsored by the Benson and Hedges Company'.

Decision: The sponsorship announcement is an advertisement for cigarettes within the meaning of sub-section 100(5A) of the Broadcasting and Television Act 1942.

Reasons: The issue in this advertisement is whether the sponsorship announcement including the use of the Benson and Hedges arms and colours breaches sub-section 100(5A). The name and arms of the Benson and Hedges Company are, in the public mind, associated almost exclusively with cigarettes, notwithstanding some other activities undertaken by Benson and Hedges. An advertisement placed by Benson and Hedges (rather than the relevant sporting body) which gives as much prominence to promoting the Benson and Hedges Company as this advertisement does can reasonably be assumed to be intended to promote, or obtain goodwill for, the only product universally identifiable with that company, namely cigarettes. It should be noted that the simple mention of the name Benson and Hedges as part of the title of the event would not itself lead to this conclusion in the absence of the strong visual images at the end of the advertisement which closely parallel (although in 'negative') the design of the Benson and Hedges cigarette packet. .

. .

The Tribunal is of the opinion that a reasonable person would regard the sponsorship announcement, in all the circumstances, as seeking indirectly to promote Benson and Hedges cigarettes."

19. The film clip was admitted into evidence. The Court has viewed the film. The Tribunal's description is accurate. The submissions of the appellant in relation to this advertisement depend for their success upon the Court's acceptance of the proposition that, for a matter to constitute advertisement for cigarettes, it must contain an express reference to cigarettes. We have already indicated our rejection of that view.

20. It was for the Tribunal to determine, as a matter of fact, the relationship between the name and coat of arms of the company, each of which was used in the advertisement, and the cigarettes which it produced. If the Tribunal found that, within the minds of a not insignificant number of those to whom the advertisement was addressed, there was likely to be such an association that the advertisement could be seen to be calculated to serve the purpose of drawing attention to, or promoting the sale or use of, the company's cigarettes, it was open to the Tribunal - as a matter of law - to hold that the material was an advertisement for those cigarettes. Except in the context of the "reasonable person" approach, it was not submitted in these proceedings that it was not open to the Tribunal on the facts to reach its stated conclusions relating to the likely effect of the use of the company's name and coat of arms. It follows that the Tribunal was entitled in law to reach the conclusion that the advertisement constituted an advertisement for cigarettes.

21. The Tribunal, in its reasons as in its policy statement POS 7, referred to the opinion of a reasonable person. The appellant contended that this reference disclosed legal error and that the Tribunal had failed to appreciate that the test was an objective one: whether on its face the material was designed or calculated to draw public attention to, or to promote the sale or use of, the company's cigarettes. As we have already indicated, the test is an objective one but we do not understand the Tribunal to have thought otherwise. There is no suggestion that, in making its judgement, the Tribunal canvassed the opinions of viewers of the televised material - reasonable or otherwise. The term 'reasonable person' was, we think, used to indicate its view that the opinion which it had reached was one which might reasonably be formed upon an objective consideration of the facts; or to apply the words of Gibbs J "viewed objectively and without regard to the actual intentions of those publishing it". A reference to a 'reasonable person' is probably best avoided, it adds nothing and is potentially confusing; but its use in this case does not indicate the adoption by the Tribunal of a legally erroneous approach. It was an approach which, if it excluded consideration of the impact upon people who had special knowledge or were unreasonable, was favourable to the appellants. 22. Appeal G.379 is also brought by Benson & Hedges; this time in conjunction with the Australian Ballet Foundation. It involves an advertisement in which the company referred to its sponsorship of the Australian Ballet. We quote from the Tribunal's decision:

"Description: A ballerina explains the forthcoming program of the Australian Ballet. The Benson and Hedges coat of arms and distinctly lettered name in gold on black, together with a voice over stating "proudly sponsored by the Benson and Hedges Company".

Decision: The sponsorship announcement is an advertisement for cigarettes within the meaning of sub-section 100(5A) of the Broadcasting and Television Act 1942.

Reasons: This advertisement contains a sponsorship announcement which is identical to that attached to the Test Cricket advertisement, 'Field of Battle'. For the reasons expressed in relation to that advertisement, the Tribunal is of the opinion that a reasonable person would regard the sponsorship announcement, in all the circumstances, as seeking indirectly to promote Benson and Hedges cigarettes."

23. Once again, the film clip has been viewed. The description is accurate. The issues arising in respect of this advertisement are the same as those already discussed in relation to the Test cricket advertisement. As in that case, no error of law was involved in the Tribunal's decision adverse to the appellants.

24. Appeal G.377 is brought by Rothmans, manufacturers of "Winfield" brand cigarettes. It involves three separate advertisements relating to a film called "Aussie Assault". The content of the three advertisements differed slightly but they had in common the screen announcement, at the beginning and end of each advertisement, "A Winfield Sponsorship". The Tribunal issued a single decision to cover all three advertisements. It read, in part:

"Description: The advertisements show scenes from the documentary film 'Aussie Assault' which concerns Australia II's successful challenge for the America's Cup. At the beginning and end of the advertisements, an inset in red and white contains the words 'a Winfield Company sponsorship'.

Decision: The insets in the advertisements are advertisements for cigarettes within the meaning of sub-section 100(5A) of the Broadcasting and Television Act 1942.

Reasons: Rothmans of Pall Mall (Aust.) Ltd has registered the 'Winfield 25's Company' as a business name. The 'Winfield Company' appears to be simply a contraction of this business name. There is no corporation called the Winfield Company, nor does 'Winfield' have any associations apart from a popular brand of cigarettes distinguished by its red and white packet. The use of the insets in the 'Aussie Assault' advertisement is apparently intended to promote, or attract goodwill to, the name 'Winfield' and, by extension, the only product bearing the Winfield name.

If there were no insets in the advertisements no issue under sub-section 100(5A) would have arisen. Furthermore, if the material had appeared in the course of a program, rather than a paid advertisement, there would have been a question as to whether it was 'incidental' to the matter in which they appeared. That exception to sub-section 100(5A) is not available in this case."

25. Rothmans does not challenge the Tribunal's findings of fact. In respect of this advertisement it puts the submissions to which we have already referred, with particular emphasis upon the proposition that an advertisement which merely mentions the name of a corporate entity cannot properly be held to be an advertisement for cigarettes. However, as we have indicated, this absolute proposition cannot be sustained. It is not difficult to think of corporations whose interests and products are so diverse that it would not be possible to find as a fact that a mere mention of the corporate name was calculated to draw public attention to, or to promote the sale or use of, any particular products of the corporation. At the other extreme there are corporations who produce only a single product, the brand name of which is also the company name. It seems almost inevitable that, in such a case, an invocation of the corporate name will draw attention to the product with which that name is so closely identified. There may be exceptions to that statement, as for example where the full title of a company is used in an official or legal context, but this is not one of them. Indeed, it was open to the Tribunal to conclude that the present case is a particularly strong one. The manufacturer of Winfield cigarettes was, and is, Rothmans. That company registered the business name "Winfield 25's Company" - the "Winfield Company" of the advertisements - apparently only for the purpose of providing a corporate association for the Winfield brand. Under these circumstances it was clearly open to the Tribunal to conclude, as it did, that the insets in the advertisements were "apparently intended to promote, or attract goodwill to, the name 'Winfield' and, by extension, the only product bearing the Winfield name."

26. The final appeal, No. G.380 of 1984, raises more complex issues. This appeal concerns the material telecast by Channel ATN 7, Sydney, from the Sydney Cricket Ground upon the occasion of the Rugby League Grand Final in 1982. In relation to this appeal two additional questions arise: whether the material constituted an "advertisement" and whether the transmission of the advertising matter was, within the meaning of s.100(10), incidental. The decision of the Tribunal included the following:

"Description: Directly alongside the field, some distance in from the perimeter, were a number of large A-frames bearing the words in red, white and gold: 'Anyhow have a Winfield 25's'. On the half-way line, the A-frame said 'Winfield Cup. Making the big game bigger'. Similar advertising signs were positioned on the stands behind the goalposts, and a large Winfield sign in the shape of the cigarette packet was stained into the grass behind each goalpost. Prior to the commencement of the game, a dance display was televised. The dancers were dressed in red and white and waved flags bearing the red and white 'V' design associated with the Winfield packet. The climax of the display showed an aerial shot of a large flag bearing the words 'Winfield Cup' in red and white, unfurled parallel to the ground, and rotated slowly by the dancers to the accompaniment of that section of Tchaikowsky's Fifth Symphony which is commonly recognised as the Winfield theme.

Decision: The telecast of the 1982 NSW Rugby League Grand Final contained matter of an advertising character for cigarettes within the meaning of sub-section 100(5A) of the Broadcasting and Television Act 1942 which was not accidental or incidental to the telecast of the Grand Final.

Reasons: The A-frames bearing the words "Anyhow have a Winfield 25's "were matter of an advertising character for Winfield cigarettes. In the Tribunal's opinion, the dance display prior to the match was, taken as a whole, also advertising matter for Winfield cigarettes, although the Tribunal would not regard the individual elements of the display (i.e. the red and white dancers and flags, the large 'Winfield Cup' flag, and the musical theme) as sufficient to constitute advertising matter for Winfield cigarettes in the absence of all the other elements. The central issue in respect of this telecast is whether the exemption in sub-section 100(10) applies. It is not proposed to canvass the issue of valuable consideration since the purpose of this decision is not to record a breach by the licensee, but to express a view on the content of the telecast. It is clear that the televising of the advertising matter was not 'accidental': see POS 07, paragraph 3.3

The question comes down to this: was the televising of the advertising matter 'incidental' to the televising of the rugby league match itself? The criteria which the Tribunal considers must be applied are set out in paragraph 3.4 of POS 07. A judgement must be made as to whether the advertising matter dominates or forms a substantial feature of the program, scene or segment, having regard to the emphasis, tone and frequency or repetition of the advertising matter in question.

In the Tribunal's opinion, it is clear that the advertising character of the dance display could not be regarded in any way as 'incidental'. On the contrary it was completely self-contained and separated from the match itself.

The Winfield A-frames surrounding the field were apparently placed so as to ensure maximum television exposure. The Tribunal noted that most of the signs were on the side of the field facing the camera locations. The coverage by ATN showed frequent and lengthy close-ups of the A-frames and other signage around the field, sufficient for the Tribunal to conclude that it could not be regarded as 'incidental', whether or not ATN intended it to be included in the telecast.

This conclusion was reached both in respect of particular segments of play, and the telecast as a whole."

27. The learned primary judge held that the Tribunal had erred in law in its conclusion that the telecast, considered as a whole, that is to say including the football match itself, constituted an advertisement for cigarettes. There is no cross-appeal so that the correctness of that view does not fall for our consideration. However, Fox J came to the opposite conclusion in relation to that part of the telecast which was constituted by the dance sequence, upholding that part of the Tribunal's decision which held that the dance display prior to the match was, taken as a whole, advertising matter for Winfield cigarettes. Rothmans challenges his Honour's conclusion on that matter.

28. A tape of the film telecast by ATN 7 is in evidence. It shows that, immediately prior to the first grade grand final match, there was a dance sequence of some ten minutes duration involving a large team of dancers, male and female. As the Tribunal noted, the dancers were dressed in red and white costumes and waved flags bearing the red and white 'V' design associated with the Winfield cigarette packet. The finale, when they bore a large flag showing the words 'Winfield Cup' in red and white, was accompanied by that part of Tchaikowsky's Fifth Symphony which the appellant has taken to serve as the Winfield theme. There was no issue before Fox J as to the connection between these various symbols and Winfield cigarettes. Indeed, Mr W P Ryan, General Manager-Tobacco Products of Rothmans, gave evidence as to the extent of the use of these symbols by the company in its advertising and agreed that they had been used in a "significant proportion" of the advertising for Winfield cigarettes. He also said that Rothmans had influenced the choice of costumes and flags. He was not asked who paid for the costumes but he said that Rothmans had borne the cost of the flags. Under those circumstances it was clearly open to the Tribunal to hold that the dance constituted an advertisement for Winfield cigarettes. As Fox J commented, the dance "had its own attraction" but this merely means that it was an attractive advertisement; and possibly the more successful for that fact.

29. Rothmans argues that the televising of the advertisement was merely incidental to the televising by ATN 7 of the football match and its associated entertainments and that, as no consideration passed from Rothmans to the television station, subs (10) applies to exempt it from the operation of subs (5A). Counsel argued that an advertisement is "incidental" if it occupies only a small part of the total time involved in a particular telecast. This submission cannot be correct. On that argument any television commercial of, say, one or two minutes duration inserted into a break in a 120 minute feature film would be 'incidental' to the film. Subsection (5A) would be rendered otiose. The Shorter Oxford Dictionary defines 'incidental' as:

"1. Occurring or liable to occur in fortuitous or subordinate conjunction with something else; casual . . . 2. Casually met with . . .". 30. The Macquarie Dictionary definition is almost identical.

31. It is not difficult to think of circumstances under which a licensee might televise matter of an advertising character as an incidental accompaniment of televising other matter; for example a televised news item shows a street scene with advertising billboards in the background. The transmission may be accidental, in the sense that the staff of the licensee do not notice the background billboard. But it may also be deliberate. The action - which represents a genuine news item - happens to take place in front of the billboard so that if the news item is to be used the billboard must also be shown. Under such circumstances the exclusion of "incidental accompaniment" would apply.

32. That example is a far cry from the facts of this case. There was admitted into evidence before Fox J a sponsorship agreement - covering the 1982, 1983 and 1984 football seasons - between Rothmans and the New South Wales Rugby Football League. The agreement recited, inter alia, that "the League has agreed to assist Rothmans in the advertising and promoting of Rothmans' products upon the terms and conditions and for the consideration hereinafter expressed". The term "Rothmans' products" was defined to include cigarettes, cigars and tobacco products. The agreement provided for the payment of a sponsorship fee each season in return for various benefits. They included: "4. Rothmans shall, without any payment in addition to the fee, have the right during the term to:

(a) Where legally permissible use hostesses to provide samples to the public of Rothmans' products during all Competition matches and at all social and other functions organised and controlled by the League.

(b) Advertise Rothmans' products on the outside back cover and exhibit the Winfield logo on the front cover of the weekly official programme of the League.

(d) Identification of Rothmans' sponsorship on the front cover of the League's Annual Reports together with reference to the sponsorship in the editorials of such reports.

(e) . . .

(f) . . .

(g) Play the Winfield theme music at all Competition matches where appropriate.

5. The League will ensure that the Competition will throughout the term be known as the Winfield Premiership and will refer to Rothmans' sponsorship in all promotional and advertising material, official programmes (including editorials in such programmes), League functions, public announcements, interviews, press releases and in all material whatsoever relating to the Competition.

6. The League will give every assistance to Rothmans in obtaining prominent advertising space at all football grounds where Competition matches are played. In particular the League will assist Rothmans in obtaining advertising space at the Sydney Cricket Ground including the painting of the Winfield logo on the grass playing area during the Competition finals series."

7. . . .

8. . . .

9. . . .

10. Rothmans shall present to the winning team of the grand final of the Competition, a trophy known as the Winfield Cup together with momentos to all players and officials participating in the grand final.

11. Rothmans shall during the Grand Final have the right to exhibit various displays and floats advertising Rothmans' products and referring to its sponsorship, as part of the League's publicity and promotions campaign for such Grand Final.

12. . . .

13. . . .

14. . . ."

33. Clause 15 shows that the sponsorship arrangement was intended as an advertising opportunity rather than an act of sporting philanthrophy. That clause makes the agreement subject to termination, with a pro rata abatement of the sponsorship fee, in the event of any requirement by a government or by a local or public authority "to remove and cease exhibition of any advertising and/or to cease conducting the promotional activities contemplated by this agreement."

34. The right to obtain prominent advertising space at all competition games would, if acted upon, result in the publication of advertisements for Rothmans' products, including cigarettes, to the crowds at those games. In the case of televised games, at least part of that advertising would be seen by television viewers. It is difficult to avoid the conclusion that, even in respect of ordinary games, the advertising was designed, inter alia, as television advertising; an inference which is supported by the company's requirements that the competition be known as the Winfield Premiership and that Winfield flags be flown, and the Winfield theme music be played, at all games. In the case of the finals series additional rights were obtained: to stain the cigarette packet logo onto the grass playing area and, in the Grand Final, to exhibit displays and floats advertising Rothmans' products. The practice at the time of the agreement was that the finals matches were all televised, although not necessarily live to all television reception areas. Rothmans might justifiably assume that a large number of people would view the Grand Final on television. To present an advertising display immediately before the main match would be to reach not only the crowd at the game itself but also - if the dance was televised - a considerable television audience. According to evidence before Fox J both ATN 7 and the Rugby League regarded the pre-match spectacles, which included the dance sequence, as an integral part of the Grand Final telecast in respect of which they had come to a transmission agreement. Given the close association between the League and Rothmans, it is reasonable to infer that Rothmans was aware of this. Under those circumstances the sequence must be regarded as an advertisement intended, inter alia, for television viewers; as much as would have been any paid commercial inset into the afternoon's program.

35. The evidence before Fox J was that ATN 7 received no payment from Rothmans for televising the display. That channel apparently had the sole rights to televise the afternoon's proceedings. The evidence does not disclose whether it was legally bound to televise everything that occurred. But, if it was not bound, it chose to do so. This was not a case of the display being incidentally picked up by cameras showing the main business of the day, the match. There was no other entertainment during the display. Without prejudice to its coverage of the match, the television station could have shown other material - such as player interviews or crowd shots - or switched to a different program altogether during the time occupied by the display. Instead, it transmitted the advertisement; its only subject of transmission for the duration of the display. The matter so televised was incidental to nothing; so that sub-section (10) has no relevance to this advertisement. It follows that it was open to the Tribunal to conclude that the transmission of the dance sequence contravened s.100(5A).

36. Each of the four appeals should be dismissed with costs.