FEDERAL COURT OF AUSTRALIA

Channel Seven Adelaide Pty Limited v Australian Communications and Media Authority [2013] FCA 812

FEDERAL COURT OF AUSTRALIA

Channel Seven Adelaide Pty Limited v Australian Communications and Media Authority [2013] FCA 812

CORRIGENDUM

1.    In the last sentence of paragraph 83, the words “all these” should be inserted before the words “images and messages to be a tobacco advertisement.”

Associate:

Dated:    19 August 2013

THE COURT ORDERS THAT:

1.    The applicant’s amended originating application for judicial review filed on 16 October 2012 be dismissed.

2.    The applicant pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The applicant holds a commercial television broadcasting licence under Pt 4 of the Broadcasting Services Act 1992 (Cth) (the Broadcasting Services Act). It is the licensee of SAS Adelaide, a station within the Channel Seven network.

2    During the course of the Channel Seven news program on the evening of 18 July 2010, the applicant broadcast a segment entitled “Cheap Cigarette Imports”. The segment concerned the importation from Germany, and sale by Coles supermarkets, of budget brand cigarettes, including those known as “Bayside”, “Harvest”, “Tradition”, and “Deal”. The segment reported that Coles was selling the imported cigarettes at discount prices – some at up to $5.00 cheaper per packet than the local equivalent product. The segment included interviews with the owner of a local “Liberty” petrol station, a spokesman from the Smokefree Australia Coalition, and two unidentified male smokers who participated in “vox pop” spots.

3    A complaint was made to the respondent. The substance of the complaint was that the news segment constituted “indirect advertising on behalf of both Coles and the cigarette companies involved”.

4    The respondent investigated the complaint (as it was required to do under s 149 of the Broadcasting Services Act) and found that the segment was a “tobacco advertisement” which had been broadcast by the applicant in contravention of s 13 of the Tobacco Advertising Prohibition Act 1992 (Cth) (the TAP Act).

5    On 23 March 2012, the respondent made a decision that this contravention constituted a breach by the applicant of one of its licence conditions, namely, the condition in cl 7(1)(a) of Sch 2 to the Broadcasting Services Act.

6    The applicant applies to the Court for judicial review of that decision. It brings its application pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth), alternatively.

Legislative background

The Broadcasting Services Act

7    Each commercial television broadcasting licensee is subject to the conditions set out in Div 1 of Pt 3 of Sch 2 to the Broadcasting Services Act: s 42(1)(a). Clause 7(1)(a) of Sch 2 (within Div 1 of Pt 3) provides that each such licence is subject to the condition that the licensee will not, in contravention of the TAP Act, broadcast a tobacco advertisement within the meaning of that Act. A breach of this condition is an offence under the Broadcasting Services Act: s 139(1). It also exposes the licensee to the sanction of a civil penalty, and remedial directions by the respondent: see s 140A(1) and (7), and s 141(1) of the Broadcasting Services Act.

The TAP Act

8    The object of the TAP Act is stated in s 3:

(1)    This Act is intended to limit the exposure of the public to messages and images that may persuade them:

    (a)    to start smoking, or to continue smoking; or

    (b)    to use, or to continue using, tobacco products.

(2)    The object is to improve public health.

9    Section 13 provides:

(1)    A person must not broadcast a tobacco advertisement in Australia or Norfolk Island on or after 1 July 1993 otherwise than as permitted by section 14.

Penalty:     120 penalty units.

Note:    A defendant bears an evidential burden in relation to the matters in section 14: see subsection 13.3(3) of the Criminal Code.

(2)    This section has effect subject to section 26A.

10    Section 14 provides:

A person may broadcast a tobacco advertisement if:

(a)    the person broadcasts the advertisement as an accidental or incidental accompaniment to the broadcasting of other matter; and

(b)    the person does not receive any direct or indirect benefit (whether financial or not) for broadcasting the advertisement (in addition to any direct or indirect benefit that the person receives for broadcasting the other matter).

11    The expression “tobacco advertisement” is defined in s 9 of the TAP Act. The section proceeds on a “basic meaning” which is subject to a large number of exceptions. Section 9 provides:

Basic meaning

(1)    Subject to this section, for the purposes of this Act, a tobacco advertisement is any writing, still or moving picture, sign, symbol or other visual image, or any audible message, or any combination of 2 or more of those things, that gives publicity to, or otherwise promotes or is intended to promote:

(a)    smoking; or

(b)    the purchase or use of a tobacco product or a range of tobacco products; or

(c)    the whole or a part of a trade mark that is registered under the Trade Marks Act 1955 in respect of goods that are or include tobacco products; or

(d)    the whole or a part of a design that is registered under the Designs Act 2003 in relation to products that are or include tobacco products; or

(e)    the whole or a part of the name of a person:

(i)    who is a manufacturer of tobacco products; and

(ii)    whose name appears on, or on the packaging of, some or all of those products; or

(f)    any other words (for example the whole or a part of a brand name) or designs, or combination of words and designs, that are closely associated with a tobacco product or a range of tobacco products (whether also closely associated with other kinds of products).

Exception—political discourse

(1A)    To remove any doubt, it is declared that if:

(a)    something (the advertisement) does not promote, and is not intended to promote, any particular tobacco product or particular range of tobacco products; and

(b)    the advertisement does not promote, and is not intended to promote, smoking; and

(c)    the advertisement relates solely to government or political matters;

the advertisement is not a tobacco advertisement for the purposes of this Act.

Use of name of manufacturer etc.

(1B)    Without limiting the scope of paragraphs (1A)(a) and (b), the use in an advertisement of the whole name of a manufacturer, distributor or retailer of tobacco products does not, of itself, constitute:

(a)    promotion of a tobacco product or range of tobacco products for the purposes of paragraph (1A)(a); or

(b)    promotion of smoking for the purposes of paragraph (1A)(b).

Prohibited uses of names

(1C)    Subsection (1B) does not apply in relation to use of such a name in a way prohibited by regulations made for the purposes of this subsection.

Exception—words etc. on products, packaging and business documents

(2)    Words, signs or symbols that appear:

(a)    on a tobacco product; or

(b)    on the packaging of a tobacco product; or

(c)    as part of the standard wording of an invoice, statement, order form, letterhead, business card, cheque, manual, or other document, ordinarily used in the normal course of the business of a manufacturer, distributor or retailer of tobacco products;

do not, when so appearing, constitute a tobacco advertisement (but this does not prevent a still or moving picture, or other visual image, of a tobacco product, of the packaging of a tobacco product, or of a document referred to in paragraph (c), from being a tobacco advertisement).

Exception—words etc. on premises of manufacturers

(3)    Words, signs or symbols that appear in or on land or buildings occupied by a manufacturer of tobacco products do not, when so appearing, constitute a tobacco advertisement (but this does not prevent a still or moving picture, or other visual image, of words, signs or symbols that so appear from being a tobacco advertisement).

Exceptions—management advertisements and certain advertisements as to availability of products

(3A)    To remove any doubt, it is declared that the following do not constitute tobacco advertisements:

(a)    the doing of anything that is, or apart from this Act would be, required to be done by any other law of the Commonwealth or by any law of a State or Territory;

(b)    an advertisement (for example, an advertisement for staff or calling for tenders), relating to the internal management of the business of a manufacturer, distributor or retailer of tobacco products, that does not promote a tobacco product or smoking;

(c)    an advertisement by a manufacturer, distributor or retailer of tobacco products indicating that tobacco products, or tobacco products of a particular kind, are available from the manufacturer, distributor or retailer, as the case may be, provided that the advertisement does not:

        (i)    state the brand name of any individual product; or

(ii)    contain any other matter that would enable any individual product to be identified; or

        (iii)    promote, or give publicity to, any individual product;

(d)    the taking of any action to prevent a product from causing injury to anyone, including action:

        (i)    to recall a product; or

(ii)    to disclose a defect in, or a dangerous characteristic of, a product; or

(iii)    to disclose circumstances in which the use of a product is or may be dangerous; or

        (iv)    to disclose procedures for disposing of a product; or

(v)    to tell people who have bought a product that the product will be repaired or replaced, or that the price of the product will be refunded.

Exception—non-tobacco product having the same name as a tobacco product

(3B)    If:

(a)    apart from this subsection, something (the advertisement) that relates to a non-tobacco product would, technically, be a tobacco advertisement because the name, or part of the name, of the non-tobacco product is the same as, or substantially similar to, the name, or part of the name, of:

        (i)    a tobacco product; or

(ii)    the manufacturer, distributor or retailer of a tobacco product; and

(b)    the manufacturer of the non-tobacco product is not associated in any way with the manufacturer of the tobacco product;

then, despite subsection (1), the advertisement is not a tobacco advertisement for the purposes of this Act.

Related bodies corporate taken to be associated with each other

(3C)    Without limiting the circumstances in which 2 persons would, apart from this subsection, be taken to be associated with each other for the purposes of subsection (3B), 2 bodies corporate that are related to each other are taken to be associated with each other for the purposes of that subsection.

Exception—certain advertisements for non-tobacco products

(4)    If:

(a)    apart from this subsection, something (the advertisement) would, technically, be a tobacco advertisement because it gives publicity to, or otherwise promotes:

(i)    the purchase or use of a tobacco product or a range of tobacco products referred to in paragraph (1)(b); or

(ii)    the whole or a part of a trade mark registered as mentioned in paragraph (1)(c) in respect of goods that are or include tobacco products; or

(iii)    the whole or a part of a design registered as mentioned in paragraph (1)(d) in respect of articles that are or include tobacco products; or

(iv)    the whole or a part of the name of a person referred to in paragraph (1)(e); or

(v)    any words or designs, or combination of words and designs, associated as mentioned in paragraph (1)(f) with a tobacco product or a range of tobacco products; and

(b)    either:

(i)    if subparagraph (a)(i), (ii), (iii) or (v) applies, a tobacco product or tobacco products of a kind referred to in the subparagraph were sold in Australia on or before 1 January 1995; or

(ii)    if subparagraph (a)(iv) applies, the person referred to in that subparagraph was in existence under that name on 1 January 1995 or at a time before that date; and

(c)    the advertisement does not explicitly promote, or give publicity to, any particular tobacco product or particular range of tobacco products; and

(d)    the advertisement is not an advertisement in respect of whose publication section 21 would have applied if paragraphs (1)(c) and (d) of that section had not been enacted; and

    (e)    the advertisement:

        (i)    explicitly promotes, or gives publicity to; or

        (ii)    appears on, or on the packaging of;

        a product that is covered by a notice in force under subsection (5);

then, despite subsection (1), the advertisement is not a tobacco advertisement for the purposes of this Act.

Specification of classes of products for the purposes of subsection (4)

(5)    For the purposes of subsection (4), the Minister may, by notice published in the Gazette, specify a class of products if, and only if:

(a)    the Minister is satisfied that:

(i)    the products are not tobacco products; and

(ii)    the products, or similar or substantially similar products, were available for purchase from a place in Australia before 1 April 1992; and

(b)    the Minister is satisfied that not specifying the class of products would cause significant financial detriment to the manufacturer of products in the class or to some other person involved in the distribution or sale of products in the class.

Note:    Section 29 provides for the making of applications to have classes of products specified in notices under this subsection.

When a notice under subsection (5) comes into force

(6)    A notice under subsection (5) comes into force:

(a)    on the day when it is published in the Gazette; or

(b)    if a later day is specified in the notice as the day when it is to come into force—on that later day.

Exception—anti-smoking advertisements

(7)    If:

(a)    apart from this subsection, something (the advertisement) would, technically, be a tobacco advertisement; and

(b)    it is clear from the advertisement that its sole or principal purpose is to discourage smoking or the use of tobacco products;

then, despite subsection (1), the advertisement is not a tobacco advertisement for the purposes of this Act.

Meaning of words

(8)    In this section:

words includes abbreviations, initials and numbers.

The Criminal Code

12    Chapter 2 (other than Pt 2.5) of the Criminal Code applies to all offences against the TAP Act: s 5A of the TAP Act.

13    The Criminal Code, which is given effect as a law of the Commonwealth by s 3(1) of the Criminal Code Act 1995 (Cth), provides that an offence consists of physical elements and fault elements: s 3.1(1). A physical element of an offence may be conduct; a result of conduct; or a circumstance in which conduct, or a result of conduct, occurs: s 4.1(1). Guilt in respect of an offence can only be established upon proof of the existence of all requisite physical elements and, in respect of each physical element for which a fault element is required, one of the fault elements for the physical element: s 3.2. If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element: s 5.6(1). If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element: s 5.6(2) of the Criminal Code. Section 13 of the TAP Act does not specify a fault element.

The Decision

The course of the respondent’s investigation

14    The respondent’s investigation of the complaint led initially to a decision on 6 May 2011. However, on 3 November 2011, consent orders were made in this Court that there be an order in the nature of certiorari quashing that decision, and that the matter be remitted to the respondent for further consideration.

15    In the course of that reconsideration, the applicant submitted that:

    the segment did not constitute a tobacco advertisement within the meaning of s 9(1) of the TAP Act;

    alternatively, the segment fell within the exception for political discourse (s 9(1A) of the TAP Act) or the exception for anti-smoking advertisements (s 9(7) of the TAP Act);

    alternatively, any tobacco advertisement in the segment was permitted by s 14 of the TAP Act, as an incidental accompaniment to other matter; and

    in any event, the applicant did not contravene s 13(1) of the TAP Act because it had no intention to broadcast a tobacco advertisement in the segment.

16     None of these submissions was accepted by the respondent.

The respondent’s reasons for the decision

The segment

17    The respondent attached a transcript of the segment to its reasons. The transcript is also attached to these reasons.

18    The respondent noted that the segment included:

    visual images of people smoking and a hand removing a cigarette from a packet in order to smoke;

    audible messages about, and visual images of, tobacco products available for purchase and being sold at Coles, including the caption “CHEAP IMPORTS”, restocking of cigarette packs on a stand for sale at a petrol station, and people using tobacco products and being interviewed about their use or purchase of tobacco products;

    visual images of identified brands available in Australia and their prices, including the brand “Benson & Hedges”; and

    audible messages about, and visual images of, German brands of cigarettes being imported by Coles from Germany for sale in Australia, including images of and verbal references to names of manufacturers of tobacco products appearing on the packaging of tobacco products.

19    The respondent considered that this material was within the scope of the description “any writing, still or moving picture, sign, symbol or other visual image, or any audible message, or any combination of 2 or more of those things” used in the definition of “tobacco advertisement” in s 9(1) of the TAP Act.

“Tobacco advertisement”: the meanings of “publicity” and “promote”

20    The respondent then turned to consider whether the segment gave publicity to, or otherwise promoted, any of the matters proscribed in paragraphs (a) to (f) of s 9(1) (the proscribed matters). For this purpose, it had regard to the definitions of “publicity” and “promote” in the Macquarie Dictionary (5th ed). It considered the following meanings of “publicity” to be the most relevant for the purpose of s 9(1):

1.    …

2.    public notice as the result of advertising or other special measures.

3.    the state of being brought to public notice by mention in the mass media, or by any other means serving to effect the purpose.

4.    …

5.    …

21    It considered the following meaning of “promote” to be the most relevant for that purpose:

1.    …

2.     to further the growth, development, progress, etc., of; encourage.

3.    …

22    The respondent considered whether the segment “gives publicity to” any of the proscribed matters. It made the following finding in that regard:

The ACMA considers that the visual images of people smoking cigarettes, of cigarettes being sold at Coles and at a petrol station, of local brands and imported brands, and names of manufacturers appearing on cigarette packages, were likely to increase consumer awareness of smoking, the availability for purchase of a range of tobacco products, a trade mark (or design) registered in Australia, and the names of manufacturers of tobacco products being imported from Germany. The visual images therefore gave publicity to these things.

The ACMA considers that the audible messages identifying brands of cigarettes and their availability for discount prices at Coles, the difficulties of competition at the petrol station, references to the price of such cigarettes, and the two interviews with smokers, were also likely to increase consumer awareness of smoking, the availability for purchase of a range of tobacco products, a trade mark (or design) registered in Australia, and the names of manufacturers of tobacco products being imported from Germany. The audible messages therefore gave publicity to these things.

The ACMA also considers that the combination in the segment of the above visual images and audible messages would have brought the availability at Coles of cheap tobacco products to public notice, thereby giving publicity to the range of tobacco products referred to in the segment. The material dealing with the impact on the petrol station owner’s cigarette sales further reinforced and highlighted the segment’s messages about, and gave publicity to, the availability of cheap cigarettes at Coles.

23    The respondent separately considered whether the segment “promotes” any of the proscribed matters. It made the following finding:

As well as giving publicity to the products, the ACMA considers that smoking and the availability of cheap tobacco brands were advanced or encouraged through the above visual images and audible messages, or their combination, in the segment. In this sense the material also promoted smoking, the purchase or use of tobacco products, and the whole or parts of the name of a person who is a manufacturer of tobacco products.

24    It is clear that the respondent considered that “gives publicity to” and “promotes”, as used in s 9(1), have separate and different meanings. When it applied those meanings, it found that the segment promotes (in the sense of advancing or encouraging) smoking and the purchase or use of tobacco products, as well as giving publicity to those matters. This was an important finding. It was developed, and in substance repeated, in the course of the respondent considering three submissions that had been made by the applicant as to how s 9(1) should be construed.

25    The first submission was that “publicity”, in the context of s 9(1), must mean “positive publicity”. The applicant argued that the segment did not contain any element of promotion or encouragement of smoking.

26    The second submission was that the segment ran for 80 seconds and that the references to cigarette names or images were very brief. The applicant submitted that the transcript placed “disproportionate and unfair emphasis” on the visual images in the segment, “which would not have been absorbed by the ordinary reasonable viewer of the evening news on a single viewing”.

27    The third submission was that the segment had a particular, clear message: cheap imports are flooding the market and threaten to undermine recent progress in reducing tobacco sales. In this connection, the applicant submitted that, in order to report this message effectively within the news, it made references to cigarette brands and smoking, but that these were not sufficient to provide the requisite promotion or encouragement to qualify as a “tobacco advertisement” within the meaning of s 9(1).

28    The respondent was not persuaded by these submissions. First, it reasoned that s 9(1) refers to any visual image or audible message. The respondent said:

Consistent with the object of the TAP Act at subsection 3(1), ‘to limit the exposure of the public to messages and images that may persuade them to (a) start smoking, or to continue smoking; or (b) to use, or to continue using, tobacco products,’ the ACMA considers that subsection 9(1) covers one or more visual images or audible messages, and does not set threshold measures or relative durations for such material.

29    Secondly, the respondent noted that there was no explicit requirement in the TAP Act that the meaning conveyed by broadcast material be assessed by reference to the understanding of the ordinary reasonable viewer. It stated that “the ‘ordinary reasonable viewer’ test used under broadcasting codes of practice … may not be applicable in this case”. Nevertheless, the respondent dealt with the substance of these submissions, and made the following findings of fact:

In any event, the ACMA considers that the visual images and audible messages were not brief, fleeting or insignificant. Together they comprised a significant proportion of the segment. The images and messages were also quite clear and explicit and were not background material. The ACMA considers they were likely to promote awareness in ordinary reasonable viewers of the availability of less expensive brands of cigarettes at Coles. The explicit price comparisons with other brands had the tendency, and potential, to persuade some viewers to continue smoking, or to take up smoking, and the interviews with smokers gave positive messages about their enjoyment of smoking.

30    Thirdly, in response to the submission that the “message” of the segment was that cheap imported cigarettes were flooding the market and undermining recent progress in reducing tobacco sales, the respondent made the following finding:

The ACMA accepts that this was one message conveyed in the segment but considers that there were also audible messages and visual images in the segment which gave publicity to the importation of cheap cigarettes by Coles and promotional elements including the availability of cigarettes at Coles for lower prices than at other outlets, and the enjoyment of smoking by at least two smokers.

31    The respondent expressed its overall conclusion as follows:

The ACMA considers that the segment broadcast by the licensee brought to public notice the availability of cheap brands of cigarettes at Coles, and this would have advanced or encouraged the purchase of tobacco products. The ACMA finds that the visual images and verbal messages from the segment that are referred to above gave publicity to, or otherwise promoted, smoking and the purchase or use of tobacco products, within the meaning of subsection 9(1) of the TAP Act.

The exceptions for political discourse and anti-smoking advertisements

32    The respondent was not persuaded that the segment fell within the exceptions for political discourse or for anti-smoking advertisements.

33    With respect to the exception for political discourse under s 9(1A), the applicant had submitted that the segment did not promote and was not intended to promote smoking or any particular tobacco product or range of tobacco products, and that the segment related solely to government or political matters, which the applicant identified as:

    the Federal Government’s cigarette tax rise which promoted a rise in the availability of cheap imported products;

    the recent decision by Coles to sell cheap imports which had the effect of undermining the effectiveness of the tax rise which applies only to Australian-produced products;

    the likely effects of cheap imports on youth smoking levels; and

     the likely effects of cheap imports on price competition.

34    The respondent noted that its finding that the segment promoted smoking and particular tobacco products meant that the requirements of s 9(1A) could not be satisfied, with the result that the political discourse exception could not apply. Nevertheless, the respondent went further: it could not accept, in any event, that the segment related solely to government or political matters. It made the following finding:

The segment included explicit, audible messages and visual images concerning the availability for sale of cheap tobacco products at Coles, and the enjoyment by smokers of their cigarettes. While the segment may have made viewers aware of the impact of inexpensive imports on levels of smoking in the community, this message was less direct than those about the availability of cheap cigarettes for sale, and the economic impact on other retailers (which also served to highlight the bargains available at Coles). It did not directly state that the tax had prompted the rise in the importation of cheap products, nor did it expressly refer to increasing smoking levels. The messages outlined in the licensee’s submission are less explicit than the direct audible messages and visual images, or their combination, giving publicity to smoking and tobacco products in the segment.

35    On this question, the respondent concluded:

The ACMA is not satisfied that the material in the segment does not promote tobacco products, or smoking, but even if this were so, the visual images and audible messages do not relate solely to government or political matters. For this reason also, the ACMA is not satisfied that the exception at subsection 9(1A) of the TAP Act applies.

36    With respect to the exception for anti-smoking advertisements under s 9(7), the applicant had submitted that the sole or principal purpose of those parts of the segment that might be considered to be a tobacco advertisement were to discourage smoking or the use of tobacco products. The respondent did not accept this. It stated that the sole or principal purpose of the segment did not appear to be to discourage smoking or the use of tobacco products. It made the following findings:

Although the segment contains two audible references to ‘the fight against tobacco’ and to Coles being ‘accused of targeting vulnerable and low income earners and teenagers,’ these messages are accompanied by visual images of cigarettes on display for sale, the words ‘CHEAP IMPORTS,’ a person inhaling a cigarette, the Coles retail area, a person’s hands holding a cigarette and a young person lighting a cigarette. The sequence featuring the ASH telephone interview referred to efforts to reduce smoking rates, including among teenagers and said that Coles’ actions were not helpful, but it closed with a visual image of a hand removing a cigarette from a packet.

The ACMA considers that most of the segment was not anti-smoking in character. The segment contained no consumer health warnings and there were no words or images discouraging smoking. The segment did not contain any anti-smoking messages such as those included in the articles cited by the licensee in its submission, referring to the dangers of smoking, to death rates (‘cigarettes kill one in two regular users’), the health impact of Coles’ actions, or the diseases associated with smoking, such as cancer.

37    On this question, the respondent concluded:

The ACMA finds that it was not clear from either the segment as a whole, or the material in the segment which constituted a tobacco advertisement within the terms of subsection 9(1) of the TAP Act, that the sole or principal purpose was to discourage smoking or the use of tobacco products. Therefore, the exception provided for in subsection 9(7) of the TAP Act does not apply.

The broadcast of accidental or incidental matter

38    The respondent then considered whether s 14 of the TAP Act permitted the broadcasting of the segment. In this connection, the applicant had submitted that, if parts of the segment were considered to be a tobacco advertisement, those parts were an accidental or incidental accompaniment to the broadcasting of the remainder of the news report, and that the applicant had not received any direct or indirect benefit for broadcasting it.

39    The respondent accepted that the applicant had not received any direct or indirect benefit for broadcasting the segment. It did find, however, that the broadcast was deliberate and not accidental. Therefore, the remaining question was whether the tobacco advertisement, as the respondent had found it to be, was “an incidental accompaniment to the broadcasting of other matter”.

40    The respondent captured the applicant’s submission in this regard as follows:

The licensee has submitted that, to the extent that any material within the segment is considered to be a tobacco advertisement, that material is clearly incidental to the remaining parts of the news report relating to:

a)    the stance taken by anti-smoking campaigners;

b)    the explanation of the Federal Government’s cigarette taxes and their effect on cigarette sales;

c)    the price elasticity of cigarette demand;

d)    the particular effect of cheap imports on the vulnerable and young;

e)    Coles response to recent criticisms of its decisions to stock such products.    

41    The respondent found:

In this case, the bulk of the segment included images of people smoking, of tobacco products available for purchase and being sold, of identified brands including local brands and German brands, and of names of manufacturers appearing on packaging. It included audible messages about the availability of the German cigarettes for sale at Coles supermarkets at discount prices, and about consumer preferences in relation to taste and price which included details of brands and price, visual images of people smoking, and interviews with consumers about their cigarette preferences.

The ACMA considers that the visual images and audible messages were of an advertising character and this constituted a substantial component of, and dominated, the segment. These images and messages did not happen in fortuitous or subordinate conjunction with other matter, and were part of the main thrust of the segment.

42    The respondent analysed the whole of the segment by reference to the specific items to which the applicant had drawn attention: see [40] above. I will not set out the entirety of that analysis. It is sufficient to quote the following findings made by the respondent in that regard:

There were some spoken elements of the news story that did not give publicity to or promote smoking or tobacco products, but they were generally accompanied by visual images that did fall within subsection 9(1) of the TAP Act. The brief interview with the ASH spokesman did not constitute tobacco advertising. The images of, and words spoken by, the service station owner (with a tobacco stand in the background, but from which brands could not be identified) might not of themselves, considered separately, fall within the definition of tobacco advertisement in subsection 9(1) of the TAP Act. However, in the context of the segment as a whole, the service station owner talking about the difficulties in competing served to reinforce and highlight the segment’s dominant message about the availability of cheap cigarettes from Coles.

The ACMA does not consider that the spoken elements of the news story that did not give publicity to or promote smoking or tobacco products, the brief interview with the ASH spokesman, and the material featuring the service station owner, either separately or together formed the main thrust of the segment. While this material may have included some references to the items set out at (a) to (e) above, it did not dominate the segment. The segment, as a whole, gave publicity to or promoted the availability for purchase at Coles of cheap tobacco products, regardless of the fact that it may have contained criticisms of Coles for making those products available. When viewed in the context of the segment as a whole, the ACMA considers that items (a) to (e) were not sufficient to constitute ‘other matter’ to the broadcasting of which the rest of the material in the segment was an ‘incidental accompaniment’.

43     In answer to the submission that the ordinary reasonable viewer would perceive references to cigarette brands and smoking as serving an illustrative purpose only for the important public health and public interest issues in the segment, the respondent found:

As noted above, consideration of the segment against the terms of the TAP Act requires assessment of any visual image or audible message or their combination that was broadcast. In any event, the ACMA considers that the segment did not focus on the public health issues surrounding the availability of cheap tobacco products at Coles, and the ordinary reasonable viewer would not have understood the segment to be conveying a public health message. While the segment did cover public interest issues, the material which constituted a cigarette advertisement dominated the segment and was not an incidental accompaniment to the material which covered public interest issues.

44    It is clear in these passages, as it is in other passages of the reasons, that the respondent gave consideration to the entirety of the segment when forming its views and coming to its decision.

45    The respondent concluded that s 14 of the TAP Act did not apply to the broadcasting of the segment.

Contravention of the TAP Act

46    Finally, the respondent considered whether the fault element of intention was present, in order to establish that, by broadcasting the segment, the applicant had contravened s 13 of the TAP Act.

47    In that connection, the applicant had submitted that, in broadcasting the segment, it had no intention to broadcast a tobacco advertisement; its sole intention was to report on a matter of public importance which had important political consequences for government policy and the efforts of third parties to reduce smoking, particularly youth smoking.

48    The respondent accepted that the relevant fault element was intention. It noted that s 5.2(1) of the Criminal Code provides that a person has intention with respect to conduct if he or she means to engage in that conduct.

49    The respondent made the following findings:

The ACMA considers that the spoken words and visual images in the segment were scripted, filmed or collected, and edited and assembled, by employees or contractors of the licensee, and intentionally broadcast in the news segment on 18 July 2010.

The licensee intended to broadcast the material in the segment, and that included material which falls within the definition of a tobacco advertisement in section 9 of the TAP Act. The licensee has therefore contravened section 13 of the TAP Act, whether or not it intended to promote tobacco, or advertise tobacco, and whether or not it was aware that the material fell within the terms of section 9 of the TAP Act.

The ACMA finds, for the purposes of its investigation of the complaint dated 27 July 2010, that the licensee contravened section 13 of the TAP Act by broadcasting a tobacco advertisement in Australia.

the grounds of review

50    The grounds of review on which the applicant relies are set out in an amended originating application for judicial review which was filed, with leave, at the commencement of the hearing. There was no objection to that course. Notices under s 78B of the Judiciary Act 1903 (Cth) had been given.

51    The grounds of review are as follows:

1.    The decision involved an error of law because, in finding that the applicant had contravened s.13 of the TAP Act, the respondent considered that it was sufficient for it to find that the applicant intended to broadcast the material which the respondent determined to be a tobacco advertisement within the meaning of sub-section 9(1) of the TAP Act, whereas on the proper construction of s.13 of the TAPA and ss.3.1, 3.2, 4.1, 5.2, 5.4 and 5.6 of the Criminal Code (Cth), the respondent also had to be satisfied that the applicant either:

(a)    intended to promote one of the matters identified in paragraphs (a)-(f) of s.9(1); or

(b)    was reckless as to the circumstances or result that the material broadcast would give publicity to or otherwise promote one of those matters.

2.    The decision involved an error of law, as the respondent misconstrued the meaning of “tobacco advertisement” in s.9(1) of the TAP Act in considering that it was sufficient that any visual image or audible message that was broadcast could be regarded as a tobacco advertisement within the meaning of s.9(1) of the TAP Act, without having regard to the context in which the image or message was broadcast so as to assess whether the image or message had the requisite character of giving publicity to or otherwise promoting (or being intended to promote) one of the relevant matters.

3.    The decision involved an error of law, in that the respondent misconstrued the meaning of “tobacco advertisement” in s.9(1) of the TAP Act in considering that it is sufficient if an advertisement gives publicity to one of the relevant matters without necessarily promoting or giving positive publicity to such matters.

3A.    Further and in the alternative, in so far as s. 9(1) of the TAP Act is construed so as to characterise a communication as a tobacco advertisement regardless of whether it promotes or gives positive publicity to the relevant matters:

a.    then s.13 of the TAP Act is invalid to the extent that it applies to communications that do not give positive publicity to the requisite matters and that are about government and political affairs, because such an application of s. 13 impermissibly burdens the constitutionally protected freedom of communication about such affairs;

b.    where here the material broadcast did not promote or give positive publicity to the requisite matters, and was about government and political affairs.

4.    The decision involved an error of law and a constructive failure to exercise jurisdiction, in that the respondent found that the news segment included a tobacco advertisement within the meaning of s.9(1) of the TAP Act without clearly identifying which part or parts (either in isolation or in combination) of the segment constituted a tobacco advertisement and with regard to which of the matters set out in s.9(1)(a)-(f).

5.    Further and in the alternative, the decision involved an error of law and a constructive failure to exercise jurisdiction because, in considering and determining whether ss.9(1A), 9(7) and 14(a) of the TAP Act applied, the respondent failed to address the application of those provisions by reference to an identified part or parts of the segment which the respondent found to constitute a tobacco advertisement within the meaning of sub-section 9(1) of the TAP Act.

6.    The decision involved an error of law and a constructive failure to exercise jurisdiction, in that the respondent misconstrued the notion of “government or political matters” within s.9(1A) of the TAP Act, including by considering that discussion of the availability of cheap cigarettes for sale at one of the two major supermarket chains and the economic impact of this on other small retailers was not such a matter.

7.    The decision involved an error of law and a constructive failure to exercise jurisdiction with respect to consideration of s.14 of the TAP Act, in that the respondent failed clearly to identify what material constituted a tobacco advertisement within the meaning of s.9(1) of the TAP Act, for the purposes of determining whether the broadcast of such a tobacco advertisement was an incidental accompaniment to the broadcasting of “other matter” within the meaning of s.14(a).

7A.    The decision involved an error of law and a constructive failure to exercise jurisdiction, in that the respondent misconstrued the notion of “incidental accompaniment” within s. 14 of the TAP Act as meaning material that occurs “in fortuitous or subordinate conjunction with other matter”, when on its proper construction an advertisement is also an “incidental accompaniment” if it is reasonably necessary to effectuate the broadcasting of the other matter.    

52    Pursuant to directions made by the Court, the parties filed written submissions. The parties also made oral submissions. My consideration of the grounds of review in these reasons proceeds substantially in the order and groupings in which the applicant addressed them in oral submissions.

consideration

The meaning of “tobacco advertisement” in s 9(1) of the TAP Act: ground 3

53    The applicant’s contention that the respondent had misconstrued the meaning of “tobacco advertisement” in s 9(1) of the TAP Act was at the forefront of its submissions. It contended that the respondent erred in its construction of the words “gives publicity to” by finding that that requirement will be satisfied – as it found it to be in the present case – if appropriate material is likely to increase consumer awareness of any of the proscribed matters.

54    The applicant submitted that this approach did not differentiate between negative and positive publicity. It submitted that, on its proper construction, matter of the kind referred to in s 9(1) constitutes a “tobacco advertisement” only if it promotes (or is intended to promote) or gives positive publicity to one or more of the proscribed matters. Plainly, this submission repeats the substance of one of the submissions that had been made to, and rejected by, the respondent in the course of the inquiry.

55    The applicant supported this construction by a number of arguments which can be summarised as follows:

    The word “publicity” must be read in the context of, and derives meaning from, the words “or otherwise promotes or is intended to promote”. The noscitur a sociis principle – as explained by Spigelman CJ in Lend Lease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207 at [30] and [32] – applies.

    A legislative proscription of positive publicity is consistent with the ordinary meaning of “advertisement” – the concept chosen by the legislature to identify the proscribed content. The definition of “tobacco advertisement” in s 9(1) does not eradicate the meaning which the word “advertisement” would otherwise convey: cf Smoker v Pharmacy Restructuring Authority and Others (1994) 53 FCR 287 at 289.

    Construing “publicity” as positive publicity would best achieve the object stated in s 3 of the TAP Act: see s 15AA of the Acts Interpretation Act 1901 (Cth).

    This construction is consistent with the legislative history leading to the enactment of the TAP Act. There is nothing to suggest that, by including a definition of “tobacco advertisement” in the TAP Act, the legislature was intending to depart from what had been understood to be an “advertisement” for the purposes of s 100(5A) of the Broadcasting and Television Act 1942 (Cth) (the Broadcasting and Television Act) (“an advertisement for, or for the smoking of, cigarettes or cigarette tobacco”); see Rothmans of Pall Mall (Australia) Limited v The Australian Broadcasting Tribunal (1985) 5 FCR 330 at 338-340.

    Constitutional considerations favour this construction: see [74]-[77] below.

    Construing “publicity” as anything that increases public awareness would catch a very wide range of communications in a way that would impose a significant burden on the freedom of communication. It is an important principle that Acts be construed, where constructional choices are open, so as not to encroach upon common law rights and freedoms. Freedom of expression in Australia is a powerful consideration favouring restraint in the construction of broad statutory power when the terms in which that power is conferred so allow: Evans and Another v New South Wales (2008) 168 FCR 576 at [68]-[78].

    Construing “publicity” widely in this way would also lead to a logical flaw. It would mean that the words “or otherwise promotes or is intended to promote” are superfluous.

    Further, a number of exceptions focus on acts which are not to be taken as acts of promotion. Those exceptions do not refer to “publicity”: see, for example, s 9(1A) and (1B). This suggests that the “key notion” is promotion.

56    The substance of the respondent’s submission was that the applicant’s contention failed to engage the fact that the respondent had made a separate and independent finding that the segment promoted smoking and the availability of cheap tobacco products, as well as similar findings about the promotional elements of the segment that had the tendency to persuade some viewers to continue smoking or to take up smoking. Thus, the respondent submitted, even if it had misconstrued “gives publicity to” in s 9(1), “its characterisation of the [segment] as constituting a tobacco advertisement would remain justified on the alternative basis of promotion”.

57    The respondent submitted that the question of construction on which ground 3 of the grounds of review proceeds does not arise for determination. Nevertheless, in its written submissions, it sought to support the construction of “gives publicity to” on which it relied in making its decision. Its arguments in that regard can be summarised as follows:

    If, as a matter of construction, “publicity” is confined to positive publicity, it is difficult to see how “gives publicity to” in s 9(1) conveys a meaning that would not also be conveyed by the notion of promotion. In short, the applicant’s construction admits of no meaningful distinction between “gives publicity to” and “or otherwise promotes”: see Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 at [71]. The same observation applies with respect to the exceptions in s 9(4)(a) and s 9(3A)(c)(iii).

    The absence of a reference to “publicity” in other exceptions – notably, the exception for political discourse under s 9(1A) – is significant and supports the view that its meaning is different to “promotes”. The benefit of the exception in s 9(1A) will only be lost where the advertisement promotes or is intended to promote a particular tobacco product or particular range of tobacco products or smoking. A similar observation applies with respect to s 9(3A)(b).

    If “publicity” in s 9(1) only means positive publicity, it is difficult to see a need for the exception in s 9(7) in respect of advertisements whose sole or principal purpose is to discourage smoking or the use of tobacco products.

    The word “advertisement” in s 9(1) cannot be used to construe the word “publicity”. To do so would be to use, impermissibly, the word defined to colour the meaning of the definition: The Owners of The Ship “Shin Kobe Maru” v Empire Shipping Company Inc. (1994) 181 CLR 404 at 419.

    The respondent’s construction of “publicity” advances the object of the TAP Act expressed in s 3 thereof, as not only “positive” publicity may persuade people to smoke.

    Although the construction of “publicity” adopted by the respondent is apt to catch a very wide range of communications, the prohibition in s 13 of the TAP Act is subject to the permission in s 14 to broadcast a tobacco advertisement if it is an accidental or incidental accompaniment to the broadcasting of other matter.

58    I accept that the question of the correctness of the respondent’s construction of “gives publicity to” does not arise for determination in the present case. The answer to that question cannot make any difference to the outcome of the present case given the respondent’s construction of “or otherwise promotes” and the findings of fact it made in that connection in reaching its decision. There is, therefore, no utility in determining that question.

59    In its detailed written submissions, the applicant did not specifically advance a submission that the respondent erred in its construction of “or otherwise promotes” for the purposes of s 9(1). More importantly, that question was not raised as a ground of review. However, it did contend in oral submissions that a fair reading of the respondent’s reasons showed that, in its fact-finding, the respondent had used “promote” in the same sense as it had used “publicity”. As the applicant put it:

In effect, they are reading down “promote” to be much the same as “publicise”, and in para 41 of their submissions, they drive the logic home … That, in our respectful submission, indicates their erroneous construction as a matter of fact, that that’s the construction they applied.

60    Earlier in oral submissions, the applicant submitted that:

… even though this decision speaks about “in any event” and uses the word “promote” in substance a fair reading of these [reasons] … suggests that the sin is bringing to public notice. Not only is that a fair reading of these reasons it’s effectively embraced by ACMA in its written submissions at paragraph 41 …

61    It should be noted that paragraph 41 of the respondent’s submissions (to which the above quotations refer) addresses the question of whether the respondent’s construction of “gives publicity to” would serve the stated object of the TAP Act. The respondent was not there addressing the meaning of “or otherwise promotes”. Thus, it does not seem to me that reference to paragraph 41 of the respondent’s submissions really advances the applicant’s contention in this regard. Whether the respondent effectively read down “or otherwise promotes” to mean the same thing as “gives publicity to” for the purposes of s 9(1) of the TAP Act can only be ascertained by considering the substance of the respondent’s expressed reasons for its decision.

62    In my view, a fair reading of those reasons does not support the applicant’s contention. The context for the respondent’s consideration of the construction of s 9(1) was the applicant’s submission that mere publicity, without promoting or giving positive publicity to the proscribed matters, was insufficient to satisfy the definition of “tobacco advertisement”. This is clear from the applicant’s submissions of 5 December 2011, which were attached to, and specifically discussed in, the respondent’s reasons. In those submissions, the applicant had drawn the respondent’s attention to a number of features of the segment – including references to cigarette brands and smoking – and submitted that these references, in context, were not sufficient to provide the requisite promotion or encouragement to qualify as a “tobacco advertisement” under the TAP Act.

63    In its reasons, the respondent specifically addressed that submission and proceeded on a definition of “promote” which was consistent with the way in which the applicant had said that that word, in its particular statutory context, should be construed. Although, ultimately, the respondent disagreed with the scope of the definition of “tobacco advertisement” that had been argued by the applicant – specifically, on whether so-called mere publicity would also be covered – it nevertheless engaged with the applicant’s submission concerning the need for so-called positive publicity and considered whether the segment advanced or encouraged smoking or the purchase or use of tobacco products. It concluded, contrary to the applicant’s submission, that, as a matter of fact, the segment did do those things. I do not accept that, in coming to that conclusion, the respondent effectively treated the meaning of “or otherwise promotes” to be the same as “gives publicity to”. It plainly treated those phrases as having different meanings.

64    Two further observations should be made. First, just as it is not necessary to determine whether the respondent’s construction of “gives publicity to” is correct, it is not necessary for me to determine the related question of whether that phrase has the same meaning as “or otherwise promotes”. Secondly, if it be assumed that the two phrases have different meanings, the facts of a given case may lead or contribute to the conclusion that each meaning is satisfied. The respondent concluded that that was the position in the present case. The facts that established publicity were equally relevant to, and contributed to, the respondent’s consideration and ultimate finding of promotion. It is clear that the respondent was satisfied that images and messages in the segment would not only be likely to increase consumer awareness of, amongst other things, smoking and the availability for purchase of a range of tobacco products (see [22] above). It found that these images and messages had an additional quality. The respondent found that the segment gave positive messages about the enjoyment of smoking. It found that the segment advanced or encouraged smoking and the availability of cheap tobacco brands. It found that the segment had the tendency, and potential, to persuade some viewers to continue or to take up smoking: see, for example, the findings recorded in [23] and [29] above.

The question of context: ground 2

65    Material will only be a tobacco advertisement for the purposes of s 13 of the TAP Act if it has the qualities set out in s 9(1), namely, that it gives publicity to, or otherwise promotes or is intended to promote, one or more of the proscribed matters. The applicant contended that, in respect of broadcast material, it is an error to assess the effect of a single visual image or audible message within that material without taking into account the balance of that material. To do so would be to ask the wrong question for the purposes of s 9(1) of the TAP Act.

66    The applicant submitted that, in the present case:

… ACMA fell into such an error by artificially dissecting the broadcast news report into a series of visual images and audible messages and then asking whether, assessing those images and messages in isolation and without reference to the balance of the broadcast, such images could be said to give publicity to, or otherwise promoted, one or more of the proscribed matters.

67    It also submitted:

In legal terms, ACMA’s reasoning involves a misconstruction of s. 9(1) of the TAP Act … [W]hen dealing with broadcast material the effect of the material cannot be assessed for the purposes of s. 9(1) unless the images and messages comprising the broadcast are understood in context, and not as separate, isolated communications.

68    The applicant sought to illustrate the presence of error of this kind in the respondent’s decision in the following way. First, it pointed to various passages in the decision which described specific visual images and audible messages on which the respondent had placed reliance: see [18] above. Secondly, it submitted that the respondent had rejected the applicant’s submission that these images and messages needed to be understood in context. Thirdly, the applicant submitted that, in carrying out its assessment, the respondent had concluded that the TAP Act did not require consideration of the meaning that might be conveyed by a broadcast to the ordinary reasonable viewer. The applicant submitted in this connection that it is impossible to assess whether broadcast material falls within the definition provided by s 9(1) without understanding the effect of the material on those who view it.

69    I do not accept that the respondent erred as alleged. The applicant’s submissions in this regard are based upon a tendentious reading, and in certain respects a misreading, of the respondent’s reasons. They also proceed, in part, by attributing to the respondent a specific finding that it did not make.

70    Section 9(1) of the TAP Act makes clear that, for the purposes of that Act, a tobacco advertisement is any writing, still or moving picture, sign, symbol or other visual image, or any audible message, or any combination of these things, that gives publicity to or otherwise promotes or is intended to promote one or more of the proscribed matters. When considering whether the segment was or contained a tobacco advertisement for the purposes of the TAP Act, it was necessary for the respondent to identify whether the segment contained such images and messages. It concluded, as a matter of fact, that the segment did contain such images and messages. In order for the respondent to explain sensibly its reasoning process, it was necessary for it to identify those images and messages in its reasons. It does not follow from the fact that it did so that it considered those images and messages in some abstract way, divorced from other broadcast material in the segment. Plainly it did not do so. As I have noted above, the respondent accepted that one message conveyed by the segment was that cheap imported cigarettes were flooding the market and undermining recent progress in reducing tobacco sales. However, the respondent also found, separately, that the segment contained images and messages that gave publicity to the importation of cheap cigarettes and contained promotional elements. The promotional elements included the availability of cigarettes at Coles at lower prices than at other outlets, and the enjoyment of smoking by at least two smokers: see [30] above.

71    The applicant relied on this finding as signifying what it said was the “artificiality” of the respondent’s approach. It sought to argue that the respondent had found that “the message conveyed by the segment” was the message for which the applicant had contended. It followed, according to its argument, that by seeking to assess the effect of individual images and messages in isolation from this message, the respondent had assessed “something other than the effect of the broadcasted material”.

72     I reject that submission. It is based on an obvious misreading of what the respondent had found. The respondent did not find that “the message” of the segment was the one for which the applicant had contended. Rather, it accepted that that was “one” message. Separately, the respondent found that the segment gave publicity to and promoted smoking and the purchase or use of tobacco products. Moreover, contrary to the applicant’s submissions, nowhere in its reasons did the respondent reject, either expressly or as a matter of substance, any submission that, for the purposes of s 9(1) of the TAP Act, images and messages had to be considered in the context of the broadcast. The respondent clearly had regard to context and gave consideration to the whole of the segment when assessing the effect of the particular images and messages it had identified.

73    Further, it is apparent that the respondent gave a qualitative and not merely a quantitative assessment of the effect of the images and messages contained in the segment. In the course of the investigation, the applicant had submitted that the segment ran for 80 seconds and that the references to cigarette names or images were very brief: see [26] above. In response, the respondent observed that s 9(1) “does not set threshold measures or relative durations for such material”. Nevertheless, it found that the images and messages on which it based its findings on publicity and promotion “were not brief, fleeting or insignificant” but “comprised a significant proportion of the segment”. It identified the explicit price comparisons as having the tendency and potential to persuade some viewers to continue or to take up smoking. It also found that the segment gave positive messages about the enjoyment of smoking: see [29] above. Although the respondent queried whether “the ‘ordinary reasonable viewer’ test used under broadcasting codes of practice” was the relevant standard for s 9(1) of the TAP Act, it went on to assess the effect of the images and messages, in the context of the segment as a whole, on “ordinary reasonable viewers”: see [29] above.

Constitutional invalidity: ground 3A

74    The applicant contended that s 13 of the TAP Act was invalid to the extent that it applies to communications that do not give positive publicity to the proscribed matters. It submitted that, so applied, the provision would impermissibly burden the constitutionally protected freedom of communication about government or political matters.

75    The Commonwealth lacks legislative power to make a law that impermissibly burdens the implied freedom of communication about government or political matters: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. Two questions are involved in determining whether a law offends this freedom:

1.    Does the law effectively burden freedom of communication about government or political matters in its terms, operation or effect?

2.    If so, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

If the answer to the second question is “no”, then invalidity arises: see, generally, Coleman v Power and Others (2004) 220 CLR 1 at [93]-[96], [196] and [211]; Hogan v Hinch (2011) 243 CLR 506 at [47] and [94]-[97]; Wotton v State of Queensland and Another (2012) 246 CLR 1 at [25].

76    In the present case, the respondent accepted that, to the extent that the prohibition does not fall within an exception in s 9 or is otherwise permitted pursuant to s 14 of the TAP Act, s 13 does burden the implied freedom. The issue that divided the parties was the application of the second Lange question to the circumstances of the instant case: see Coleman at [98]-[100]; Wotton at [89]. However, as this issue came to be argued, its determination was fixed by the question of construction of s 9(1) identified and discussed in [53]-[64] above. The applicant accepted that, insofar as s 9(1) treats material as a tobacco advertisement because it promotes or gives positive publicity to one or more of the proscribed matters, the answer to the second Lange question would be “yes”. In its written submissions, the applicant put its case in the following way:

… Prohibiting positive publicity about such matters may be seen to burden the freedom of communication in a permissible way, in the sense of being appropriate and adapted to serving a legitimate end in a legitimate manner. That is because of the postulated link (made clear in s. 3 of the TAP Act) between persuasive, positive publicity and adverse public health outcomes. However, the same could not be said of a law which prohibited communications about such matters irrespective of their negativity or positivity about smoking. A Commonwealth law which indiscriminately prohibited communications about smoking and tobacco products, including communications that are anti-smoking or neutral in their effect, or which expose matters that are undermining public health policy or other public policy objectives, could not be said to impose a permissible burden.

77    It can be seen that, in light of the construction that the respondent gave “or otherwise promotes” in s 9(1), and in light of the findings of fact it made in respect of the segment based on that construction, the question of the validity of s 13 does not arise for determination in this case. The applicant accepted that if, based on the construction of “or otherwise promotes” for which it contended, the respondent had properly found that it had broadcast a tobacco advertisement for the purposes of s 13 of the TAP Act, there was no scope for the constitutional argument raised by ground 3A of the application for review: see T36(40)-T37(2); T50-T58, especially at T54(23-26), T57(33-34) and T58(24-30). In these circumstances, the constitutional question posed by ground 3A should not be decided. It is not necessary to do so to determine the applicant’s rights: ICM Agriculture Pty Ltd and Others v The Commonwealth of Australia (2009) 240 CLR 140 at [141].

The exception for political discourse: ground 6

78    As I have noted (see [33]-[35] above), the respondent was not satisfied that, in the present case, the exception for political discourse under s 9(1A) was engaged. This was because, first, the respondent was not satisfied that the segment did not promote any particular tobacco product or particular range of tobacco products or smoking and, secondly, the respondent was not satisfied that the segment related solely to government or political matters. The respondent’s lack of satisfaction on any of these matters was a sufficient reason to find that s 9(1A) was not engaged. Paragraphs (a), (b) and (c) of s 9(1A) posit cumulative requirements which must be satisfied for the exception to apply: see [11] above.

79    Ground 6 of the application for review engages only one of these matters. It concerns the question of whether the respondent misconstrued the notion of “government or political matters” within s 9(1A)(c) of the TAP Act. However, even if the respondent had misconstrued that notion, the respondent’s finding that the segment promoted smoking means that the exception provided by s 9(1A) cannot apply.

80    In its written submissions, the applicant fastened onto the respondent’s finding (quoted in [34] above) that the segment may have made viewers aware of the impact of inexpensive imports on levels of smoking in the community, but that this message was less direct than those about the availability of cheap cigarettes for sale. The applicant submitted that this reasoning involved “a false dichotomy” because the availability of cheap cigarettes was at the heart of the political and government-related content of the story which aimed to raise health and competition concerns. The applicant submitted that the respondent’s reasoning reflected “an unduly narrow approach to the recognition of communications about government and political affairs”.

81    In my view, that submission is directed more to challenging the correctness of the respondent’s findings of fact on the question of promotion than it is to challenging the respondent’s reasoning on what constitutes government or political matters. The respondent’s conclusion that the segment did not relate solely to government or political matters was one that was open to it on the findings of fact it had made. The applicant has not established error in terms of ground 6 of its application. In any event, for the reasons I have given, the respondent’s findings on promotion precluded the availability of the exception under s 9(1A) in the present case, regardless of whether ground 6 of its application could be made out.

Failure to identify the tobacco advertisement and error in the application of the exceptions in s 9(7) and s 14 of the TAP Act: grounds 4, 5 and 7

82    The applicant submitted that, although the respondent had identified visual images and audible messages that gave publicity to or promoted one or more of the proscribed matters, it did not identify what images or messages constituted the “advertisement”. It submitted that this was “legally erroneous in its own right” because a finding of contravention of s 13 of the TAP Act “necessarily requires a finding as to the thing said to constitute the advertisement”: see ground 4. It also submitted that this failure had significance in relation to the respondent’s consideration and rejection of the political discourse exception (s 9(1A)), of the anti-smoking exception (s 9(7)), and of the permission relating to the broadcast of accidental or incidental matter (s 14) because, in order to properly consider those exceptions, it is necessary to distinguish the tobacco advertisement from other matter: see grounds 5 and 7. The applicant submitted that the alleged failure to identify the advertisement was an error of law and involved a constructive failure to exercise jurisdiction.

83    In my view, these submissions proceed by seeking to impose on the respondent a somewhat unrealistic standard. The segment involved an aggregation of visual images and audible messages. It was necessary for the respondent to engage in a qualitative evaluation and assessment of the various images and messages to see whether they, or any combination of them, had the characteristics set out in s 9(1) of the TAP Act. The respondent identified, by general description, the images and messages on which it based its findings: see [18] above. It also provided a transcript identifying not only the audio presentation but a description of the visual images that accompanied that presentation. In its own submissions to the respondent, the applicant referred to this transcript as being lengthy and detailed. The transcript provided the background against which the detail of the visual images and audible messages could be ascertained from the respondent’s more general description. Moreover, throughout its reasons, the respondent provided further descriptions and analysis of the images and messages on which it based its findings. In my respectful view, the respondent could not reasonably be expected to have done more to separate and identify the visual images and audible messages that it considered to possess the characteristics of a tobacco advertisement within the meaning of s 9(1), nor was it required to do more. The respondent considered that the various images and messages it had identified, or combinations of them, constituted a tobacco advertisement. It can be taken that, as a minimum, the respondent considered the combination of images and messages to be a tobacco advertisement.

84    In the course of making submissions to the respondent in relation to the possible application of s 14 of the TAP Act, the applicant identified five matters to which it said all other material in the segment was incidental: see [40] above. The respondent accepted that those matters were present in the segment (although, in the case of (c), only as a possible background theme). However, contrary to the applicant’s submission at the time, the respondent found that the images and messages which it had identified in the passage quoted at [41] above were not an incidental accompaniment to the five matters identified by the applicant, but a substantial component that dominated the segment. It found that those images and messages “did not happen in fortuitous or subordinate conjunction with other matter”. Rather, they “were part of the main thrust of the segment”. The applicant submitted that, without identifying any particular image or combination of images that were said to constitute the advertisement in question, the respondent’s reasoning, in this regard, was flawed. I do not accept that submission. The reasons quoted in [41] above make clear the combination of images and messages which the respondent considered to be of an advertising character that constituted a substantial part of, and dominated, the segment.

85    I am not persuaded, therefore, that the respondent did not identify with sufficient precision what part or parts of the segment it considered to be a tobacco advertisement within the meaning of s 9(1) of the TAP Act.

86    The applicant advanced an additional submission concerning the application of s 14. It pointed to the respondent’s statement that, although there were some spoken elements of the segment that did not give publicity to or promote smoking or tobacco products, these elements were generally accompanied by visual images that did fall within s 9(1): see [42] above. It submitted that, even if these images had that character, they simultaneously had a different character of conveying information reported in the segment about “the availability of imported cheap cigarettes and the significance of that development for public health initiatives and public policy generally”. The applicant submitted that the respondent erred in reasoning that images and messages cannot have a dual character “in the context of a broadcast such as the news report”. The applicant developed this submission:

To say that anti-smoking comments were “accompanied by” images of an advertising character is not to detract from the incidental character of those images … Rather, it is to recognise the very reason why they ought to be characterised as incidental accompaniment. An image of a cigarette packet, or even a clip from an explicit advertisement (such as the infamous Marlboro Man television commercials), may feature as part of a broadcast about tobacco which is not of an advertising character. The image or advertisement may be used as a means to communicate information, analysis and commentary. As in the case of the news report, the comments, tone, images, subject matter and context of the broadcast combine to form something which is plainly not of an advertising character.

87    This submission is, once again, directed more to challenging the correctness, as a matter of fact, of the respondent’s evaluation of the segment, than it is to identifying reviewable error in the respondent’s reasoning. The respondent submitted:

Ultimately, evaluation of s 14 of the TAP Act involves questions of degree. In the present case the ACMA found that the applicant’s use of visual images and audible messages which gave publicity to or promoted smoking and the other matters it identified dominated the [segment], at the expense of the message that the applicant claimed it had sought to convey. The fact that others may have reached a different conclusion does not demonstrate error.

88    I accept that submission.

89    When dealing with these grounds of review, the applicant did not seek to advance separate submissions concerning the respondent’s rejection of the political discourse exception and the anti-smoking exception. I have already dealt with the respondent’s rejection of the political discourse exception: see [78]-[81] above. As to the respondent’s rejection of the anti-smoking exception under s 9(7), it is to be recalled that the exception provides that, despite material being a tobacco advertisement, it is not to be taken as such for the purposes of the TAP Act if it is clear from the advertisement that its sole or principal purpose is to discourage smoking or the use of tobacco products. As I have noted, the respondent was not satisfied from the segment as a whole, or the material in the segment which constituted a tobacco advertisement, that the sole or principal purpose was to discourage smoking or the use of tobacco products: see [36]-[37] above. Once again, this was a matter of evaluation for the respondent. On the facts as found, that conclusion was open to it.

The meaning of “incidental accompaniment” in s 14(a): ground 7A

90    When considering the possible application of s 14 to the broadcast of the segment, the respondent adopted a dictionary meaning of the word “incidental”. Based on entries in the Shorter Oxford Dictionary and the Macquarie Dictionary (2nd ed), it took “incidental”, in the context of s 14, to mean “in fortuitous or subordinate conjunction”.

91    In Director of Public Prosecutions v United Telecasters Sydney Limited (1990) 168 CLR 594, Toohey and McHugh JJ (at 612) adopted the same meaning when considering s 100(10) of the Broadcasting and Television Act. The case concerned the alleged contravention of s 100(5A) of the Broadcasting and Television Act which provided that a licensee shall not broadcast or televise an advertisement for, or for the smoking of, cigarettes or cigarette tobacco. Subsection 100(10) was definitional in character and relevantly provided:

A reference in sub-section … (5A) … to the broadcasting or televising … 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 …”

92    In considering s 100(10), Toohey and McHugh JJ said (at 612):

In the context of s. 100(10) of the Act, the word “accompaniment” seems to refer to matter of an advertising character which occurs “in company with” the broadcasting or televising of “other matter”. Hence “matter of an advertising character” will not be an “accidental or incidental accompaniment” unless it is broadcast or televised contemporaneously with the “other matter”. In that setting, the adjective “incidental” must mean “happening … in fortuitous or subordinate conjunction” with the “other matter”: Macquarie Dictionary, 2nd ed. (1987), p. 881.

93    Although not defining the word “incidental” in this context, the other members of the High Court in United Telecasters (Brennan, Dawson and Gaudron JJ at 601-602) appear to have given it a similar meaning.

94    Earlier, in Rothmans, a Full Court of this Court (at 347) adopted the same dictionary meaning of “incidental” when considering the same provision. In doing so, the Full Court rejected a submission that an advertisement is “incidental” if it occupies only a small part of the total time involved in a particular telecast.

95    Given the employment of the same expression (“accidental or incidental accompaniment”) in substantially the same context, it can be taken that the Parliament intended the word “incidental” as used in s 14(a) of the TAP Act to have the same judicially determined meaning that had been expressed with respect to s 100(10) of the Broadcasting and Television Act: Re Alcan Australia Limited and Others; Ex Parte Federation of Industrial, Manufacturing and Engineering Employees. (1994) 181 CLR 96 at 106-107.

96    In the present case, the applicant contended that “incidental” as used in s 14(a) of the TAP Act had the meaning of “something that is reasonably necessary to effectuate another purpose”. It relied on observations in Metro Transport Sydney Pty Ltd v City of Sydney Council [2009] NSWLEC 37 at [21]-[36] about the meaning of the word “incidental” used in a different statutory context. It submitted that this meaning was not incompatible with the notion of something being “in subordinate conjunction with” another thing. It submitted that this meaning added “an element which is missing” from the respondent’s interpretation and application of s 14. It developed its submission in the following way:

… An assessment of whether some aspects of a communication are an “incidental accompaniment” to other matter also requires asking whether certain material has been included because it is reasonably necessary to effectuating some other purpose. The legislature must be taken to have intended, in enacting s. 14, to permit publishers and broadcasters to be able to communicate effectively about matters that do not constitute advertisements, even if they need to refer to material having an advertising character, if it is reasonably necessary to effectuate the communication. ACMA erred in its interpretation of s. 14(a) by failing to consider these aspects of “incidental accompaniment”.

97    In my view, the respondent did not err in its interpretation of s 14(a) of the TAP Act. It applied the correct meaning of “incidental” in considering the application of that provision. In Metro Transport Sydney, the Land and Environment Court of New South Wales was dealing with the use of the word “incidental” in s 104P(4) of the Transport Administration Act 1988 (NSW) which provided that:

Development for the purposes of a light rail system includes anything that is incidental to the carrying out of any such development.

98     This is a use of the word “incidental” that is quite different from its use in s 14(a) of the TAP Act. I accept the respondent’s submission that the construction for which the applicant contends would broaden the scope of the exception in s 14 in a manner that is not justified by the surrounding text of the provision. The provision refers to the broadcast of an advertisement that is “an accidental or incidental accompaniment” to the broadcasting of other matter. The work that this expression performs, in the present context, was explained in Rothmans (at 347):

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.

99    This passage was quoted in the respondent’s reasons and informed its construction of s 14(a) in the present case. It followed its quotation of this passage with the findings quoted at [41] above. If the word “incidental” were to be construed and applied as the applicant would have it in the present case, it would effectively deprive that word of the meaning given to it in United Telecasters and Rothmans. It would mean that visual images and audible messages which the respondent found to have been of an advertising character that dominated the segment to be, at the same time, an “incidental accompaniment”. This cannot be the intended operation of s 14.

The requisite mental state: ground 1

100    The applicant contended that, in order to justify a finding of contravention of s 13 of the TAP Act, it is insufficient to merely establish that a person intended to broadcast matter that is found to be a tobacco advertisement within the meaning of s 9(1). The applicant contended that it is also necessary to establish that, in broadcasting that matter, a person intended to promote one or more of the proscribed matters.

101    As I have recorded, the respondent reasoned that, as the applicant had intended to broadcast the material in the segment, it contravened s 13 of the TAP Act, whether or not it intended to promote tobacco or to advertise tobacco, and whether or not it was aware that the material fell within the terms of s 9(1): see [49] above.

102    In its written submissions, the applicant submitted that the offence created by s 13 of the TAP Act involves two distinct physical elements in terms of s 4.1 of the Criminal Code. The first is the act of broadcasting. The second is the circumstance or the result that the broadcast material gives publicity to or otherwise promotes or is intended to promote one of the proscribed matters. As an intention to promote is specified as a fault element for one manifestation of the offence, intention is the fault element for that manifestation. Otherwise, according to the applicant, the fault element for the second physical element is recklessness: see s 5.6(2) of the Criminal Code. In oral submissions, the applicant appeared to resile from its contention that recklessness was an appropriate fault element – preferring the view that, in relation to its posited second physical element, intention was the only fault element. It is not necessary to dwell on that matter because, on any view, the respondent did not approach the question of contravention by considering a second physical element with its own fault element. The immediate question is whether, by failing to recognise a second physical element, the respondent fell into error. Only if it fell into error in that way does it then become necessary to identify a relevant, separate fault element involved in the contravention.

103    In my view, the applicant’s analysis is flawed. There is only one physical element: broadcasting a tobacco advertisement in Australia or Norfolk Island (otherwise than as permitted by s 14). One would not accurately or sensibly state a physical element of the offence to be, simply, “broadcasting”: see, analogously, Li v Chief of Army (2013) 210 FCR 299 at [56]-[57]; see also the analysis in R v Saengsai-Or (2004) 61 NSWLR 135 at [34]-[72].

104    In this connection, I accept the respondent’s submission that:

If a person means to broadcast material that gives publicity to or otherwise promotes or is intended to promote smoking (for example), then the intention will be established. That will be the case whether or not the person intended to give publicity to smoking or promote smoking, and whether or not he or she was aware that the material fell within the terms of s 9. By contrast, if a person broadcasts material by mistakenly inserting the wrong cassette into the device it would not breach the prohibition: in that circumstance, the person did not mean to broadcast material meeting the description in s 9(1).

105    It follows that the respondent did not err in its analysis of the relevant physical and fault elements of s 13 of the TAP Act.

disposition

106    The applicant has failed to establish error in respect of the respondent’s decision. Its application for judicial review of the decision should be dismissed, with costs.

Associate:

Dated:    14 August 2013

Transcript of ‘Cheap Cigarette Imports’, Channel Seven News segment broadcast on SAS on 18 July 2010.