Saatchi & Saatchi Compton (Vic) Pty Ltd v Australian Broadcasting Tribunal [1984] FCA 389

CATCHWORDS

Administrative Law - judicial review ~ broadcasting and television ~- Australian Broadcasting Tribunal's power and function to determine "standards"in connection with advertisements - meaning of "standards" - whether para.39 of Television Program Standards and Tribunal Circular

Letter 7.10 void for uncertainty.

Herald-Sun TV Pty. Limited v. Australian Broadcasting Tribunal, unreported, Wilcox, J., 10 July 1984 - con.

The King v. Galvin (1949) 77 C.L.R. 432 - con.

Broadcasting and Television Act, 1942, ss.16, 17, 100.

Saatchi & Saatchi Compton (Vic.) Proprietary Limited v. Australian Broadcasting Tibunal and Actors Equity of

Australia

No. G 199 of 1984

Beaumont, J. 23 November 1984. Sydney.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY

we eww

GENERAL DIVISION No. G 199 of 1984

BETWEEN : SAATCHI & SAATCHI COMPTON (VIC. } PROPRIETARY LIMITED

Applicant

AND: AUSTRALIAN BROADCASTING TRIBUNAL

First Respondent

AND: ACTORS EQUITY OF AUSTRALIA

Second Responzent

ORBER

Judae makina order: Beaumont, J.

Date order made: 23 November 1984.

Where made: Svdnev.

THE COURT ORDERS THAT: 1. I direct the applicant to bring in short minutes of

orders to aive effect to these reasons.

2. I adtourn the further hearing of the rroceedinas

until Friday. 30 November 1984 at 9.15 a.m.

IN THE FEDERAL COURT OF AUSTRALIA

) ) NEW SOUTH WALES DISTFICT PEGISTRY ) ) )

GENERAL DIVISION No. G 199 of 1984

BETWEEN : SAATCHT & SAATCHI COMPTON (VIC.) PROPRIETARY LIMITED

Applicant AND: AUSTRALIAN BROADCASTING TRIBUNAL

First Respondent

fecond Resvoncent

CORAM: Beaumont, J.

DATED: 23 Novemper 9384.

REASONS FOR JUDGMENT

In this arplication for review made under th

ao

Administrative Decisions iJudicial neview' Act, 1977, :"

ct

i)

h Judicial Review Act") the arplicant, an advertising agent, or

E22kh5 Tucirtial reviaw cf ltéertain ccnauct and cecision

a im

the Australian Ercadcaztina Tribunal made unisr the

Uyrcadcasting and Television Ast. 1974 ("the Acc').

The history of the matter commences in 1970 with the issue by the Trikunal's precurscr, the Australian Broadcasting Control Board, of 'Television Proaramme Standards" said to be determined by the Board 1n pursuance of the Act. (In accordance with the transiticnal provisisns of the amending legislation, the Tribunal has continued to administer these Standards.) Part Two of the Standards is

entitled "Advertising Standards". Paraqraph 35 of the

Standards is in these terms:

"26. Section 100 of the Broadcasting and Televisicn Act 1942-1963 ersviaes., inter alza, tnat:

(Ll., Subtect to this Art, a licen televise advertisements.

(2.) A licensee intending v2 ... televise advertisements shail cablish rcarticulars; of nis advertising charzes.

(3.) A licenses zhail not, Wilinsut reasgonadDle cause, discriminate? against anv person acplying tor che use of his

advertising service.

(4. A_jic snall somely with surn

a card dete-mines in relation IL

(emphasis added)

(5.) A licensee shall not... celevise advertisements ona Sundav excert in such

manner and in accordance witn such ccnditzions as tre Board determines.

As was pointed out in paragdrarcn 2 cf tnese Programme Standarcs. television will réach a areat variety of persons in the wvrivacy sr their homes. It is ctharefore important that,

3.

in addition to being honest and truthful. all televised advertisements should comply with . the standards set out in preceding para- graphs. and should be generalliv acceptable for viewing in the home. Methods suitable for other media mav be inappropriate for television. consequentiv it is necessarv to examine all advertising techniques to ensure that the spirit and purpose of these

Standards are fulfilled. The attainment of quality in presentation applies no less to

advertising than to all other parts of the television proaramme. "

Paragraph 37 defines the term "advertisement". By para.38, licensees are responsible for ensuring that certain

requirements are observed. For instance, suo-para.(q) is as

follows:

"Sdvertisenents shoula c2 ccesented with courtesy and aocd taste. Disturbing cr annoving material Sucn as clatant sound erfects, rersistent repetition, and words an phrases implyina urqgency or emeraancy shoul be avoided.

Paragraph 39, the validity or wnicn is challended

in these proceedings, runs:

"29. All televised advertiserents must be produced in Australia. Such advertisements may include a presorcticn not exceeding 20 rer rant of the duraticn of cth2 aavertisement:

a? cr rictcrial watrver .@xcluainag animaticn) oenctoszracned cutsigze Australia cniy if it portrays persons, plazas cr avents which cannot be cnotcraraphed in Autctraiia:

and

Pn

4.

(b) of sound recorded outside Australia onlv if it consists of the voices of personalities or the sounds associated with places or events which cannot be recorded or otherwise created in Australia:

provided that limitation to this proportion shall not apply to pictures or sounds which have been obtained by Austraiians who journeved to the places concerned for the purpose of photographing or recording that matter. or to the use of recorded backcround music which is not directlv associated with the sales messaqe ot the advertisement."

The other rwrovisions of Part Two of the Standards deal with the acceptability of advertising matter (para.40); the aavertisinag of medicines (para.42); and advertising time

Standards (rpara.42. et seq.).

ot fo] wo a H o io fo] fe ianfp (2 w ct Bm a al a Pea be Qo aQ (2) ct i) ct oO f=} i) a ra)

'The Televisicn Program Standaras administered by the Tribunal require advertisements cn Australian television. with limited exceptions. to ke produced in Austrailia.

In response to a number sf ainsuiries from advertising agencies and oreduction nouses, the Tribunal has prepared the followina consolidated statement of 1t3 rules relating to the imported content sof Australian television advertisements.

The prohibiticn cn ireerced

advertisements dces not erecluce the use of un to 20% of 1mecrted material not obtainarie in Australia: the use of material snot overseas by Australian crews: tne uz2 cr importad material in test market camcaiagne: the ase cr New Dealand creodures advertisarerts rine uze zt imrorter archival MATS ILL in

advertisements for certain aoods: the use of imported footage in advertisements for cinema

films and recordinas and personal appearances

by overseas artists: or the use of computer animation effects. ..."

The detail of the rules was then explained.

on 5 May 1981, the Tribunal, purporting to act pursuant to 3.16 of the Act (to which reference is made below), determined certain amendments to its advertising standards. Clause 4 of the circular letter T.10 was repealed. In lieu. a new cl.4 rermitted the televising of an advertisament produced in New Zealanc.

in apncut August 13862, cné Tribunal bewan <9 LnvVa3tigzat2 alleqations of "anczt crewing" an reseect ot advertisements prcduceld Tor an arvernaticnal airline. Discussions tock placa oetween ofricers sf cone Tribunal and

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wo 'o

resentacives of the applicant. In about April 1984, the Tribunal beaan an inquiry into the r2iming and ercduction of certain television advertisements. The cerms of yererence

were as follows:

"l. Whether tna followin aavertisements transmitted bv commercial televisicn staticn were eroduced in conformity wit of che Televisicn Prozram Tribsanal Circular Latter T.1C of thereatter referraa 42 53 Standarazs 3:

6.

(the advertisements are specitied) 2. Whether. asa result of findinas made under paraaraph l.

(a) existing mechanisms for monitoring the observance of the relevant Standards should he altered or added to; or

. (b) the relevant Standards should be

redrafted to clarifv the obligations of licensees."

On 16 April 1984. an officer of the staff of the Tribunal issued a summons to Mr. Russell Walker, the

manaqing director of the applicant. requiring the production

to the Tribunal, for the purposes cf the inquiry. of

Act empcwers tne issue of such a summons fcr the rurrcses cr mrocesdings before "he Tribunal at an inagutry held under

Davisicon 32 of Part II. tc be mencticned later.:

the applicant se#ks to review f1rst:

"the conduct of che Tribunal whererv 'it) has engaged, 13 enawaging ani proposes to enaade an otonduct \ tne Cenaucst ; for tne currcsase or:

(a? making a decision '' the First ,\Peiny a 2err3s1icn 9 Twiittial Pavnew A324) yatooit 135 A 22218109n

7.

of an administrative character proposed to be made under (the Judicial Review Act) sections 18 and 25B) as to whether certain television advertisements were produced in conformity with Paragraph 39 of the Television Proqram Standards and Tribunal Circular Letter No. T.10 of llth July. 1978 ('the Relevant Standards'). ard

{b) makina a decision ('the Second Decision') as to whether, as a

result of the First Decision,

existing mechanisms for monitoring the observance of the Relevant

Standards should be altered or

added to. or whether the Reievant Standards should be redrafted."

Secondlv, the apelicant s€2k3 790 review the Tribunal's decision ("the Third Decision") t3 stirulate ana to06C6©UaGhere)6to:)6the©)6o rules to be found in che 'Relevant

Standards".

The qarounds of the applicacvion. as stated in che amended applicaticn. are. in essence. that tne "Reievant Standards" are beyond oower and vcid either because there 15

a om

no power to determine that requirements of the kind to whl

the "Relevant Standards" belong should be observed, or. even

r (01) be if ot i sucn vower., the "Relevant Standards" are

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ry

FH,

insurficien

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iv erecize and certain. Actoraingiv, 1t 723 claimed that the First. Seccnd and Tnird vecisions are

bevoni power. Cons

o .Q Cc m ro] ct fm fu ray "§ o be be wo Hy, uo aw re) r Q SD a

8.

Before stating the respective arguments of the parties. reference should be made to the relevant provisions of the Act. By s.16(1). the functions of the Tribunal are

defined. Thev include:

™Cd) to determine the standards to be observed by licensees in respect of the ... televisina of programs;

(e) to determine the conditions subvlect to

which advertisements may be ... televised by licensees;".-

By 3.17(1), fcr the purpose cf exercising its powers and functicns under the Act. the Trzbunal shall have power to maxe such orders. aive such directions and 2c ali such other thingzs as it thinks frit. Bv 3.18/1), batfcre taking action under the Act in relation tc anv matter. the Tribunal may if ait thinks fit, amd shall aif the Act sc provides, hold an inquirv in accordance Division 3 of Fart

II into that matter.

The commercial television service is dealt with in Part IV of the Act. Division 5 of that Part deals with programs. Sy 3.29'1). a litensee shall crsvide orcarams and shall supervise the televising cf prcarams in sucn manner as

<[O ensucé. a3 Tar as practicabie, that the croarams are in

9.

definition provision, 3.4(1) detines "television station" bv reference to. inter alia. the transmission of "televisicn programs. that is to say, images and associated scund

intended for reception by the general public ...".

As has been said. advertisements are dealt with by 3.100. Specifically, by 3.100(4), a licensee shall comply with such 3tandards as the Tribunal determines in relation to the televising of advertisements. By 3.101, where the Tribunal has reason to believe that anv matter (including an

advertisement) wnich it is proposed to broadcast or televise is of an obiectionable nature. that matter shall be subject

to such censorship as the Tribunal determines. Sv 3.129(1),

every licence granted uncer the Act snail be sus1acst to the provisions of the Act 39 far as thev ar2 aprlicable to tne licence. and tnose provisions snall be daersi <5 be

ie) rh a ' te w

incorecrated in the licence as terms anc censitcns

licence.

The applicant's primary argument is based upon its construction of 5.100(4). It submits that tne manner of production of an advertisement. specifically, the location

of that wsyroduction. is not a subiect matter which fail

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i

wWichin the scor2 cr the scwer cconferren pv s.luuid:, Thre

argument 15 that such a provisicn 1s concerned criv witn

standards" and ts attempt. as the Tricunal has dene, tr

reTulat3a che mannar cf ecrcdurtiscn of ans

eS

10.

prohibiting production overseas, should not be characterised as the determination of "standards" for the purposes of s.100(4). The contention is that no imposition of "standards", in anv ordinary sense of the word. is involved in the operation of para.39. Moreover, 1t is said. the requirements of para.39 do not impose any "standard" in relation to the televisinag of advertisements as contemplated by s.100(4): the effect of para.39 is to do mo more than place an embargo upon the overseas production of

advertisements.

The meaning of the word 'standard" was discussed in

(ey Iba) fs) is) <3

The Kina v Galvin; Ex carte Metal Trade m ers'

Asgsociaticn (1949) 77 C.L.R. 432 at e.de7 (per Latham, C.J.,

Dixon, McTiernan, Williams and Webb, JJ.):

"The word 3tandard' its used in several senses. The meaning of the word may varv i accoraance with the context ainwnich it 2 used. The orimary idea which the wor expresses is that of a measure of auantlty 9 quality fixed cy apprcved by some authcrity, e.a., standard foot. standard round, stanaard of behaviour."

Accerdinag to the Oxtfora Enaiish Dicticnary, 'the

definitions cr staniar2 unciude thea frilicwina: an

authoritative or recoanized examrlar cf correctness, or ecre

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finice deare

o

of anv yualityv: & rule, printiple cr reans

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at ie)

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TiMacLin:

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definite level of excellence. attainment or the like ora definite dearee of any quality viewed as a prescribed object of endeavour or as the measure of what is adequate. The Macquarie Dictionary defines "standard" as. inter alia. a level of quality which 1s reqarded as normal. adequate or acceptable; (usually in the plural) behaviour. beliefs etc. reqarded as socially desirable or acceptable. According to Ballentine's Law Dictionarv. 3rd Ed. (1969) "standard"

means: "(a) determined means of comparison or 4@valuation,

e.g, a buiiding standard" (at p.1208).

Rithcugh, as was said in Galvir's Case, "standard"

lural

=] fw Bot Lay wo My, w nS 1) H ct iw wo Ley ct a Q c pp ra ray at < u ns ct G Q Cc pyet v at '< ir 1Dny tT on 1D U

aesirable or acceptable. In mv opinicn, the ordinary meaning of "standards" and its context suagest that it 15 the quality of the product. rather 'than its quantity. that is the s3ubtect matter of the Tribunal's power of

determination under s.100(4) (cf. Herald-Sun TV Pty. Simite

vy. Australian Broadcasting Tribunal, unreported. Wilcox. J. 19 July 1984). That 1s to sav, in mv view. in the exercise cf its wower under 5.109(4), the Tribunal mav regulate tne content or the advertised material in terms sf its quality

in the sense of what 1s reaqarded as ezctiallv desirabie cr

ware

12.

of such requliation. In so acting, the Tribunal's powers are unconfined except so far ag limitations are to be derived from the context and scope and purpose of the statute (see The Queen v. The Australian Broadcastina Tribunal; Ex carte

oHD Ptv. Limited (1980) 144 C.L.R. 45 at 5.50).

Paragraph 39 of the "Television Programme Standards" requires, interms, that. gubiect to limited exceptions. all televised advertisements must be preduced in Australia. Generally speaking, overseas production 1s permissible cnly if Australians are emploved. In my

Cpinion, sucn a direction does not provide "standards" in

relaticn to the televising of acvertisaments. The provision aoes no more tnan restrict the istations at wnich telev1z2zitn

aavertisements mav be produced cto sites wrtnin Austraila. It dees not purport to deal in anv way with the aualicr of wnat mav be televised. Rather. suplect '*c the limited qualifications menticned., vara.39 purporcs ce orerata 3 ensure that production takes plac? on Australian 3011 and. no dcubt. with Australians emploved in that production. effect of such a provision cannot, in my opinion, touch upon

the quality of the finished product.

r

ed oon benalt of the Tribunal inat tne

It 13 susmit

ct

power to aive a direction in terrs of para.39 ray 32 Focuné

in. inter alia, 3.16(1)(4). Althcuch that erovisicn aces not. in terms yertar cto adverctizan

aw D

LT

cs bots fuyrasrad - ' ATE, «2 LS SITS STSy

13.

definition of "program" earlier mentioned. i3 wide enough to pick up advertisements as well. It is further suagested that s.17 confers powers upon the Tribunal wide enough to justify a direction such as 13 found in para.39. Other parts of 3.16(1) are aiso relied on - e.a. (e) and (i).

In the present case. it is common ground that no specific condition in the terms of para.39 has been placed upon any relevant licence. It may well be open to the

Tribunal to do so (see Austarama Ptv. Limited v. Australian

Broadcasting Control Board (1977) 27 F.L.R. 291). But, in

my opinion, at this point of time, subject to the pessibpility that. subsequentiv, tne Tr:ipunal may irrcose a condition upon licences in terms cf para.29, che relevant source of power, 1f any. for the ercclamation of para. 2S is to be found in $.100(4) and not elsewhere. It 13 true trat. in form. s.100(4) is fyamed as a disection to a licenses.

But it is implicit. if not explicit in its provisions that

fa

the Tribunal i3 empowered tc formulate standards fcr the

ct

celevising of advertisemants. Since the relevant source of the Tribunal's powers for present purposes 25 3.100(4), those powers can onlv be exercised s0 a3 to restrict the

television of aivertisements in vurzuance cf the Tribunal s

aetermination of 'stancaras' ror that wbusrcse.

14.

It is also submitted on behalf of the Tribunal that even if it is confined to s.100(4). then para.39 should be perceived as laving down "standards" in the sense used in s.100(4). It is sucagested that a "standard" is not necessarilv something that 13 fixed or certain. This was the question for determination in the Herald-Sun TV Case, supra, but. in my view, it does not arise nere. Nor does 1t assist the Tribunal to say that. in some contexts. a standard may indicate no more than the fixing of a minimum goal. It is one thing to prescribe a minimum quality for 3a product. It is a different thing to restrict the location

of its preduction.

It follcws., ain ny view, chat vara.22 and, conzeauentlv, the determinations in the cirtuiar letter are cevond the powers conferred by s.100(4). In my Spinicr, ro otner provision in tne Act can provice an alternative scurce of rower for this purpose. 'I should add that otner provisions of the Act such as) s.83/5){b)'i1i) and s.1l4, dealing, in other contexts, witn Australian content. cannot.

in my view, assist either party in thertr respective

constructions of 3.100/(4).)

In th2t4 circumstances, it i383 unnertessar

'< a oO (2 m wp Hn

witn the applicant's alternative uncertainty arcumer

te] wt

15.

Finally, it is contended on behalf of the Tribunal that. even if para.39 and the determinations in the circular letter were beyond power and thus void. the Court nonethe- less does not possess jurisdiction under the Judicial Review Act to grant the relief soudht. It 13 suqgested. inter alia, that these proceedings are. in substance. an attack upon the "standards" determined as longa ago as 1970 and that the applicant i3 accordingly cut of time under the Judiczal Review Act. It is also arqued on behalf of the Tribunal that the proceedings constitute an impermissible attempt directly to challence what is. in truth, legislation, even

if in deleaated 'form, whereas the scope of relief availanle

under the Judicial Review Act 1s confined to cenéuct of an

administrative character under an enactment.

In mv opinion, Doth submissions snsuid re rejected. The conduct or the Trinzunal 1s <ccntinuing conauct in the sense that it now asserts thea rower to enforce its rurporteld determination of standards pursuant to s.100(4). Further. an inquiry under 5.19 is current. The summons tc Mr, Kalker in this connection 15 outstanding. In mv view, all this is conduct of an administrative character unaer the Act. It 25

thus within the purview cf the Judicial Review Act.

Io propese to grant the applicant relief cf tne Kini 1t now seeks and to crder that the Tribunal wav the

su "Sy .

ry th

16.

Tribunal but. as an intervener, 1t should neither receive

nor be liable for costs. I propose to make no order for its costs. Iwill hear arqument, 1f necessary, as to the

precise form of relief to be agranted. The orders I now make are as follows:

1. I direct the applicant to bring in short minutes of

orders to aive effect to these reasons.

2. I adiourn the further hearing of the proceedinas

until Fridav, 30 November 1984 at 9.15 a.n.

O ~~

le eu

rly hel iis ardihe 'S preceding PAGES Grd a true Copy of the reasons for judgment herein of The Honourable Mr Justice Beaumont.

Anatrecd <7 Associate