Re Media Council of Australia Authorisation: Re Australian Consumers' Association's Application [1987] ATPT 1

Re Media Council of Australia Authorisation: Re Australian Consumers' Association's Application [1987] ATPT 1

The Code system constituted private regulation of the market for advertising messages, collectively implemented through significant market power arising from the media bottleneck, the accreditation system and the coverage of the Media Council system. Rules reflecting Australian law produced clear public benefits through accessible working standards, efficient clearance, enforcement and compliance procedures. However, many rules going beyond the law, particularly soft rules in the Cigarette Advertising Code, Alcoholic Beverages Advertising Code, Advertising Code of Ethics and aspects of the Therapeutic Advertising Code, depended on contested assessments of community values and were...

Jurisdiction
Australia
Judgment Date
31 March 1987
Procedural Posture
Application Under S. 101 of the Trade Practices Act 1974 for Review of the Trade Practices Commission's Authorization of Media Council Advertising Codes / Review of Commission's Determination; Proceeding Adjourned to Allow Revision and Restructuring Before Final Determination on Authorization
Outcome
The Tribunal was not satisfied that the statutory tests in sub-ss. 90(6) and 90(8) were met for the Codes under review, but adjourned the proceeding to allow the Media Council a reasonable time to restructure and revise the Code system before final determination of authorization.
Legal Topics
['authorisation' 'public Benefit and Public Detriment' 'lessening of Competition' 'exclusionary Provisions' 'advertising Codes of Conduct' 'self Regulation' 'private Regulation' 'market Power']
['trade Practices' 'competition Law' 'advertising Regulation' 'administrative Review'] ['authorisation' 'public Benefit and Public Detriment' 'lessening of Competition' 'exclusionary Provisions' 'advertising Codes of Conduct' 'self Regulation' 'private Regulation' 'market Power']

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Procedural Posture

Application Under S. 101 of the Trade Practices Act 1974 for Review of the Trade Practices Commission's Authorization of Media Council Advertising Codes / Review of Commission's Determination; Proceeding Adjourned to Allow Revision and Restructuring Before Final Determination on Authorization

Legal Issues

  1. 1 ["Whether the proposed adoption and implementation of the Media Council's Advertising Code of Ethics and Product Codes would result, or be likely to result, in a benefit to the public." 'Whether any public benefit would outweigh the detriment to the public constituted by any lessening of competition likely to result from implementation of the Codes.' 'Whether the Codes, including rules going beyond existing law, could be justified as private regulation enforced through significant market power.' "Whether the formulation, interpretation, administration and appeal mechanisms of the Media Council's self regulation system adequately reflected community values and protected against anti-competitive detriment."]

Ratio Decidendi

The Code system constituted private regulation of the market for advertising messages, collectively implemented through significant market power arising from the media bottleneck, the accreditation system and the coverage of the Media Council system. Rules reflecting Australian law produced clear public benefits through accessible working standards, efficient clearance, enforcement and compliance procedures. However, many rules going beyond the law, particularly soft rules in the Cigarette Advertising Code, Alcoholic Beverages Advertising Code, Advertising Code of Ethics and aspects of the Therapeutic Advertising Code, depended on contested assessments of community values and were...

Court Disposition

The Tribunal was not satisfied that the statutory tests in sub-ss. 90(6) and 90(8) were met for the Codes under review, but adjourned the proceeding to allow the Media Council a reasonable time to restructure and revise the Code system before final determination of authorization.

Orders

  • ["The proceeding was adjourned to allow the Media Council and its constituent and affiliated organizations a reasonable time to review, restructure and revise the Code system in light of the Tribunal's findings." 'The matter may be restored for further hearing on the question of the imposition of conditions on...