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

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