Application by the Australian Consumers Association to the Trade Practices Tribunal

IN THE TRADE

PRACTICES TRIBUNAL

No. NSW 1 of 1986

IN THE MATTER OF AN APPLICATION

' _

BY THE AUSTRALIAN CONSUMERS	'
ASSOCIATION TO THE TRADE

PRACTICES TRIBUNAL

FOR THE

REVIEW OF THE TRADE PRACTICES

COMMISSION AUTHORIZATION

CERTAIN CODES

OF THE MEDIA

-	COUNCIL OF AUSTRALIA.

INDEX

1. INTRODUCTION	1	I
2. PARTICIPANTS AND WITNESSES	4

3 .	PREVIOUS AUTHORIZATIONS	6
4.	THE APPLICATIONS OF THE MCA FOR AUTHORIZATION

OF THE PRESENT CODES

5. RELEVANT LAW

- SCOPE OF THE APPLICATION AND

~~~~~

~~~~~~

~~~~

STATUTORY TEST

1 5

THE CASES OF THE MEDIA COUNCIL AND

THE ACA

2 1

6 . 1	Case	Council's	The Media	2 1
6.2	The ACA's Case	23

6.3 7. THE CODES

The Clash of Values

AND

THE SELF

REGULATION

SYSTEM

7 . 1

General

7.2

The wider

regulatory

context

7.3 The

System

of Codes

7 .4	System governance	29
7.5	Code review and revlsion	30

7 .6

Clearance

procedures

Tribunals

7.7

Advertising

appeals

8 Penalties

and

7.9

Table of representation on the Media

Council's system bodies

8 .

THE CODES

8 . 1

Codes

Broad

structure

the

8.2

Relationship to the law

8.3

Precision and generality in

draftlng

8.4 Procedural

provisions

8 . 5

The

international

context

8 .5 .1

Self requlatlon in other countries

8.5.2 Remarks

THE ADVERTISING INDUSTRY AND

THE MARKET

FOR ADVERTISING MESSAGES

9 . 1

Advertising

and

its

rolc in soclety

9.2

The advertismg industry and the

identification

relevant

markets

5 1

9 . 3

Features of the market for advertising

messages

10. MARKET POWER, PRIVATE REGULATION AND

ANTI-COMPETITIVE EFFECT.

10.1

The media "bottleneck"

10.2

Accreditation

10.3 Coverage and organization of the system

10.4

Private regulation and anti-competitive

effect

11. THE TRIBUNAL'S APPROACH

TO THE ASSESSMENT OF

BENEFIT AND DETRIMENT

11.1	Classlflcation of the Codes	68
11.3	The approach to assessing benefits	72

11.3 Sources of potential detriment 12. BENEFIT/DETRIMENT FOR CODE-RULES REFLECTING LAWS

13. BENEFIT/DETRIMENT

FOR OTHER CODE RULES

13.1	The issue of private regulation	88
13.2	The lssue of "grave offence"	89
13.3	The issue of the advertising industry's
"collective wisdom"	9 1

.13.4

The issue of generally expressed rules

and their interpretation

13.5	The issue of "directed" advertising	98
13.6	The issue of outside participation in
Code revision and Code interpretation	102
13.7	The issue of the Therapeutic Advertising
Code	104

13.8 The issue

of impacts on the markets

for advertised products

107

13.8.1

Comparative advertising and

disparagement

110

13.8.2 Therapeutic claims

111

13.8.3

The committee structure and

barriers to new competition

112

14. THE FUTURE OF THE MEDIA COUNCIL'S SELF

REGULATION SYSTEM

114

IN THE TRADE PRACTICES TRIBUNAL

No. NSW 1 of 1986

IN THE MATTER OF AN APPLICATION

BY THE AUSTRALIAN CONSUMERS'

ASSOCIATION TO THE TRADE

PRACTICES TRIBUNAL

FOR THE REVIEW

OF THE TRADE PRACTICES COMMISSION

AUTHORIZATION OF CERTAIN CODES

THE MEDIA COUNCIL

OF AUSTRALIA.

LOCKHART J. - President, Professor	M. Brunt, Dr. B.I. Aldrich
31 MARCH 1987

REVIEW OF COMMISSION'S DETERMINATION

1. INTRODUCTION

This is an

application

by The Australian

Consumers'

Association ("the ACA") for review Practices Commission ("the Commission") dated 10 January 1986. By its

of a determination of the Trade

I .

determination

the

Commission

granted

authorization

to the

Media

Council of Australia

("the

Media

Council")

and

members

of its

constituent and affiliated organizations to adopt certain Codes as

standards to which the rules of the Media Council governing the

accreditation-of advertising agencies would apply. Pursuant to sub-s.

88(10) of the Trade Practices Act	1974 ("the Act") the Commission	!
extended the authorization to apply	to persons who and corporations

which thereafter became members

of the Media Council

or members of its

constituent or affiliated organisations and t'o advertising agents who

were therea€ter granted

accreditation

under

the

rules

the

Australian Media Accreditation Authority ("the AMAA"). The Commission

considered whether the authorization should be limited in time. The Commission decided, especially in view of its powers under S. 91 to

review the authorization in the context

of changed circumstances, that

an authorization limited in

time was not appropriate.

The Commission

noted that it expected

to have discussions regarding the Codes with

the Media Council from time to

time.

The Codes, which

were

the

subject

of the

Commission's

authorization, are

six of the Media Council's seven proposed voluntary

codes of advertising, namely:

the Advertising Code of Ethics; the Cigarette Advertising Code; the Alcoholic Beverages Advertising Code:

the Therapeutic Advertising

Code:

the Slimming Advertising Code; and

the Domestic Insecticide Advertising Code.

A seventh Code relating to mail order advertising was in the process

of being reviewed by the Media Council and was not the subject of the

Commission's determination.

The Australian system of self regulation in advertising

has

evolved through advertising agencies. Advertising codes have emerged which are

the

co-operation

of the media, advertisers

and

I : I '

essential to the self regulation system.

The advertising industry is

1 .!

divided into four groups: the media, the advertisers, the advertising

agencies and miscellaneous service groups.

The

media (newspapers,

magazines, television,

radio, posters and

cinema) convey the paid

3 .

messages

the

public.

Advertisers

are companies,

government

authorities and public through the media. Agencies are engaged by advertisers to

persons seeking to communicate paid messages to the

create advertisements

and

place them with the media. Miscellaneous

groups

supply

services

the

industry;

for

example,

market

researchers help to companies translate the concepts of advertisements into reality.

identify

and

define

markets and

production

In advertising matters the governing media body

is the Nedia

Council. The Media Council is an unincorporated voluntary association comprising seven other associations. It was established on

December 1967 by resolution of its original constituent associations. types of media; namely, metropolitan newspapers, country newspapers,

magazines,

commercial

radio stations

and

commercial

television

stations. Nearly all proprietors of commercial media in Australia are members of the Media Council and are bound by its objects and rules.

All the self regulatory Codes emanate from the Media Council. It

the Nedia Council which had the carriage

the application to the

Commission for authorization

of the Codes.

The constituent member associations which currently comprise

the Media Council are:

.	Australian Newspapers Council;

. News

Limited;

.	Australian Accreditations Bureau;

. Australian

Magazine

Publishers

Association;

.	Australian Provincial Press Association;

i .

4 .

.	Regional Dailies of Australia Limited;
.	Federation of Australian Radio Broadcasters ("FARB"); and
.	Federation of Australian Commercial Television Stations ("FACTS").

All these associations except FARB and FACTS

are represented on the

Australian Publishers' virtually all newspapers and magazines.

Bureau

("the

APB").

The APB

represents

Four other associations are aEfiliated with the Media Council and are bound by its rules. These are:

.	Australian Suburban Newspapers Association Pty. Limited;
.	Associated Rural Press of Australia;

The Outdoor Advertising Association of Australia ("the

OAAA"); and

.	The Australian Cinema Advertising Council ("the ACAC").

The Media accreditation of advertising

Council

is the

body

responsible

for the

agents.

Every

accredited

advertising

agent regards itself

as bound to comply with and observe the Codes and

maintain a standard

of ethics and conduct determined

by the Media

Council.

2. PARTICIPANTS AND WITNESSES

We shall refer to participants except the Media Council, to whom we have already referred.

The applicant for review before us, the ACA, is a company limited by guarantee. It was formed in

1959 with the object of

advancing

the

interests

of Australian

consumers.

has long

demonstrated an interest

in matters pertaining to

the regulation of

advertising. The ACA was dissatisfied with the grant of authorization

and

applied

to this

Tribunal for review of the

Commission's

determination.

The ACA was not the applicant for authorization,

but

the Tribunal determined that it had

sufficient interest for the

purposes of sub-s. lOl(1) of the Act and proceeded to review the

Commission's determination.

The proceeding before it, namely:

Tribunal permitted various bodies to intervene

the

the Advertising Standards Council

("the

ASC") ;

FACTS ;

FARB ;

the APB;

the AMAA;

the ACAC;

the OAAA;

Advertising Federation of Australia Limited ("AFA");

The Tobacco Institute	of Australia Limited;
Rothmans of Pall Mall	(Aust.) Limited; and

Phillip Morris of Australia Limited.

The Media Council, FACTS, FARB, the APB, the AMAA, the ACAC and the OAAA were represented

by the

same solicitors and counsel.

Each

the remaining interveners was separately represented. Early in the proceedings leave to intervene was sought

by and granted to the

Secretary of the Commonwealth Department of Health, but the Secretary

later sought and was granted leave

to withdraw.

i	The Australian Association of National Advertisers ("the
i	I

AANA") sought early in later withdrew its appllcation. Counsel for the AANA informed

the proceeding before us to intervene, but

us that

the AANA nevertheless supported the

self

regulatory system in the

advertising industry and the present voluntary Codes.

The Tribunal heard evidence from twenty-eight witnesses and received many documents into evidence.

!	The hearing before us occupied
i

eighteen days and we had the benefit of full submissions from counsel and solicitors for the parties and for the interveners and counsel for

!	the Commission. Schedule	A	to these reasons	is a	list of the
i
witnesses.

Schedule B to these reasons is a list of the names and

convenient abbreviations of the organizations mentioned in the evidence.

parties,

interveners

and

other

3 .

AUTHORIZATIONS

This been sought for the voluntary Codes of advertising

not the first occasion on which authorization has

of the Media

Council. In

1976

the Commisslon granted authorizatlon to certain

corporations to continue to be parties to the agreement contained in

the Nedia Council's Rules Governing Accreditation of Advertising

Agencies and authorization was granted subject

certain

associated

Codes

and

Standards.

That to the condition that one rule (Rule

2 3 ) be amended and that

another rule (Rule

19) be abandoned. The

applicants in that matter then applied to the Tribunal (constituted

Deane J., President; Mr. J.A.F. Shipton and Mr. J.N. Walker) for a review of the Commission's determination. The decision of the Tribunal is reported as Herald & Weekly Times Ltd. and others on behalf of the members of the constituent and affiliated aSSOCiatiOnS

of the Media Council of Australia

("The Media Council Case") in L19781

A.T.P.R.

40-058.

The Tribunal said in its reasons for decision that,

I	provided the lredia Council was prepared	to make certain amendments to
!

its Accreditation Rules, it would allow the application

for review and

grant authorization of the Accreditation Rules and the associated

Codes and Standards.

The

Tribunal found that

real and substantial

beneEit to the public had resulted and results from the Media Council's Accreditation System including the benefits of efficiency

and

cost

savings; responsibility in advertising; and the encouragement and preservation

the

promotion

of honesty,

fairness

and

of small advertising

agencies.

The Media

Council

subsequently

indicated its willingness

to make the amendments.

The authorization ultimately granted by the Tribunal on 31

March 1978 was thus

for

the

Rules

Governing

Accreditation

Advertising Agents as amended and the associated Codes and Standards.

It is authorization

important to note that the Codes and Standards then granted

were

viewed

as an aspect of the

Media

Council's

l	I	Accreditation	System.	The	Accreditacion	Rules	establish	a	system
I
under which:
i
!

1. all accreditation rules are binding on all participating media proprietors and all accredited advertislng agencies;

2. eligibility for accreditation

by is dependent

the

Nedia

Council's

accreditatlon

authority

upon

an agency's

8 .

maintaining its

independence

and

satisfying

prescribed

service and financial requirements;

3 .

an accredited agency

is granted unlimited credit and

responsible for payment for advertising	and for making
payment within the prescribed time;

only

accredited agents are eligible to receive commission

from a member media proprietor and that commission

is subject

to a maximum prescribed from time

to time; and

advertising agents, in submitting advertisements

to a media

proprietor, are bound to conform

to the standards of that

media proprietor and to the Codes and Standards published	by
the Media Council and its associated bodies.

In relation to 5 . , Rule 31 of the Accreditation Rules stated:

"All advertising submitted to a Media Proprietor shall

conform to the standards of the Media Proprietor concerned,

and in addition

(a) shall be clean, honest and truthful advertising, and

(b) shall not be liable

to misinterpretation either directly

or by implication or by omission, and

or visual presentations

offensive to public decency and good taste, and

(d) shall comply

with

all

Commonwealth

and

State

and

Territory laws, ordinances, rules and regulations, and

(e) shall conform strictly with any advertising standards

Code of Ethics which may be published	by MCA from time
to time."

The detailed Codes and Standards submitted to the Commission for authorization on that occasion

were as follows:

the Advertising Code of Ethics

of the Media Council;

the Slimming Advertising Code;

the advertising guidelines for hair and

scalp treatment;

9 .

the Domestic Insecticide Advertising

Code;

the Therapeutic Advertising

Code;

the standards of broadcasting practices of the predecessor

body to FARE; and

the Television Advertising

Board's Regulations and Approval

the Commercials and Timing System

the predecessor

body to FACTS.

i	However, the standards respectively) were not included in the Commission's authorization and	and regulations (in	(6) and	( 7 )
i

hence were

not before the Tribunal

or included in its authorization

as the Commission decided

give

them fuller consideration: see

Commission determination

( 1 9 7 6 ) TTCD [A30051 at para, 4.6..

Nor was

item ( 5 ) above included in the Tribunal's authorization. In any event, a Therapeutic

Advertising

Code

was

granted

separate

authorization by the Commission in 1977 (see the list below).

The authorization granted by the Tribunal in 1978 was for the Accreditation Rules and the following Codes:

the Advertising Code of Ethics of the Media Council;

the Slimming Advertising Code:

the advertising guidelines for hair and scalp treatment;

I	the Domestic Insecticide Advertising	Code,
i
1
I

!	Paragraph	3	of the Tribunal's authorization contalns this important
statement:

10.

"This authorization neither operates as or involves a grant of authorization in respect of any of the

provisions of constituent or affiliated

the

rules

and

regulations

organizations

the

Media Council of Australia which are not now or hereafter the subject of a grant of authorization

under the Trade Practices

Act."

The Tribunal noted the following:

"The Trade Practices

Commission is requested to

examine from time

to time the

working of the

accreditation

system

the

Media

Council

Australia €or the purpose of considering whether by reason of altered circumstances it is desirable that this authorization should be varied or

revoked.

We have dealt with the decision of

Council case in 1978 in some detail because that decision provides a

useful starting point for the present application. Although that

decision is relevant for present purposes, its relevance must be

qualified by certain considerations. It was the Accreditation System

the Tribunal in the Media

and Rules with which the Tribunal was primarily concerned

in the 1978

case: and most of its reasons are directed

to those matters.

The application to this Tribunal is for authorization of

certain Codes accreditation of advertising agents would apply. The Accreditation

standards

to which

the

rules

governing

the

System and the Accreditation Rules are not themselves directly in issue in the proceedings before us. As the Commission noted in para.

110 of its determination in the present case:

".	. . the MCA Accreditation Rules are not the

sub~ect

this application, although in its

consideration of the Codes the Commission has

taken into account the context	in which they
would be administered".

11.

The relevance of the Accreditation System- and Accreditation Rules to the review conducted by us was treated by the parties and interveners

in evidence and final submissions as having broadly	the same relevance
as it had before the Commission.

Although the Accreditation Rules are not themselves directly

in issue before us, the result of our review of the six Codes in issue

will directly affect the operation of the Accreditation System.

Advertising submitted to a media proprietor shall conform strictly

with the advertising standards

or Advertising Code of Ethics

of the

Media Council (see Accreditation Rule 31(e), the terms of which are

set out earlier).

Hence, in practice there is a close nexus between

the Accreditation Rules and System and the Codes which are the subject

of this present review.

Although certain of the Codes and Standards of the iqedia Council were regarded by the earlier Tribunal in 1978 as part of the subject matter of review and of subsequent authorization, their public

benefit was not subject

to any real contest

by the parties or any

detailed scrutiny by the Tribunal. Indeed, the Tribunal said that it

would "pay regard" to the Commission's findings as to public benefit

.where there were no special reasons

to do otherwise.

Further, when

the Tribunal was conducting

its review in 1978 it was essentially

examining the Accreditation System and Rules with

view

their

prospective operation. It did not have the benefit, which we

have, of

years of previous experience of the Codes and Standards as authorized

from time to time.

We shall refer to this point in more detail later

when considering the tests which must be applied

by us in the present

matter.

12.

Thus, the Codes which were before the Tribunal

in 1978 and

the subject

of its authorization, although having many elements

similarity to the

Codes the subject of

the present review, had many

and distinct differences: not the least of which is that the Cigarette

Advertising Code and the Alcoholic Beverages Advertising Code were not

before the Tribunal at that

time.

The following

additional

authorizations

been

also

have

granted by

the Commission, both before

and after the review

of the

Tribunal in 1978, but were not within the scope of that Tribunal's review:

~ 2 1 2 6 4

of 23 June 1977 - standards of broadcasting practice

of FARB;	:
i- .

A17156 of 6 December 1977 - advertising	standards	for
advertising of alcoholic beverages;

I r~

A17155 of 6 December 1977 - voluntary	code	for	the
advertising of goods for therapeutic use: codes for cigarettes;

A30045 of 23 July 1979 - amendments to voluntary code for the

advertising of goods €or therapeutic use;

A90324 of 16 may 1980 - amendments to voluntary code for the

advertising of goods for therapeutic

use:

I	A30022 of 3 June 1980 - standards for mail order advertising; A90298 of 9 October 1980 - voluntary code of advertising alcoholic beverages: and
A30077 of 22 June 1982 - amendments to the rules governing accreditation of advertising agencies.

13.

Also, applications

(numbers

A11709

and

A212651

for

authorization of Commercials Acceptance Procedures were granted

the

FACTS

Television

Advertising

Practices

and

the

Commission,

i	although subject to conditions,	in a determination dated	12 September
!

1984. FACTS decided not to accept the conditions and the Commission

subsequently revoked the authorization.

4. THE APPLICATIONS OF THE MEDIA COUNCIL FOR AUTHORIZATION OF THE PRESENT CODES

There were four applications for authorization which, following authorization by the

to the Commission

Commission, are therefore the

subject of this review. They are as follows:

A30106 dated 9 August

1984

the Advertising Code of Ethics,

the Cigarette Advertising Code,

'the Slimming Advertising

Code,

the

Domestic

Insecticide

Advertising Code;

A30110

dated

November

1984

- the

Alcoholic

Beverages

Advertising Code;

A30111

dated

November

1984

- the

Therapeutic

Advertising

Code; and

A90429 dated 6 May 1985

the six Codes in

far as

they

contain provisions that may be

exclusionary.

In May 1985 application A30111 was amended before the Commission to incorporate a proposal of the Commonwealth Department

of Health.

The first three applications were made under sub-s. 88(1)

the Act for an authorization under that sub-section to make a contract

or arrangement, or arrive at an understanding, a provision of which

would have the

purpose, or would have or might have the effect

14.

substantially lessening competition within the meaning

of S. 4 5 of the

Act.

The fourth application was made under sub-s.

88(1) in relation

to the whole of the Codes for an authorization under that sub-section

to make a contract

or arrangement, or arrive at

an understanding,

where provision a of the proposed contract, arrangement or understanding would be, or might be, an exclusionary provision within

the meaning of S.

4 5 of the Act.

In each

case

the

application

states that,

subject to

authorization, "the Media Council

of Australia intends to adopt the

Codes as standards to which the Rules Governing the Accreditation of

Advertising Agencies will apply".

All six Codes arose out of a major review by

the Media

Council of its earlier Codes which had been

in force for at least five

or six years. Ne noted earlier that a seventh Code, relating to mail order, is in the process of being reviewed by the Nedla Council and is

not,

therefore,

part

the conduct being

reviewed

this

determination.

In February 1986 the Tribunal was informed that the

Media

Council proposed to amend certain of the Codes, the subject of the applications, to reflect legislative requirements and to incorporate changes requested by the Office of Road Safety, Canberra, the

Commonwealth Department of Health

and the ASC.

The Tribunal has noted

the amendments and is of the view that,

if it is disposed to grant

authorization to the Codes, the subject

the formal applications,

the amendments would raise no additional questions.

i '

15.

The process by which the "old" Media Council Codes have come

to be authorized has been one of marginal accretion and substitution.

The present set of applications represents an important new phase

this process.

The Tribunal is called upon to examine not only some

new Codes but virtually a complete set of new Codes arising	out of the
Media Council's own major review.

5. RELEVANT LAW - SCOPE OF THE APPLICATION AND STATUTORY TEST

The content of this Section has been determined by the

President

the

Tribunal as the Act entrusts to him decisions on

questions of law arising in a review.

This is the first occasion

on which the Tribunal has examined

extensively and comprehensively the proposed new Codes and the working

of the Codes as already authorized. This review is concerned not with

an examination of each of the five Product Codes and the Advertising

Code of Ethics merely as documents.

The Codes must be considered by

us in the

context of the self regulatory system

advertising in

Australia as a whole, in the light of past experience, with a view to

determining how the new Codes are likely

to work

in practice in the

future. The operation of the old Codes which are to some extent the subject of prior authorizations is a permissible and useful guide to

the likely operation

of the revised Codes.

The applicant for review, the ACA, has no onus cast upon it to show that the Commission was wrong in granting the authorization. The Tribunal must itself be satisfied of all matters, after examining

the relevant material,

applying the tests propounded in sub-s.

16.

90(6): see Re Queensland Co-operative Milling Association

Ltd.,

Defiance Holdings Ltd.

("the Q.C.M.A.

Case") (1976) 25 F.L.R.

169;

[l9761 A.T.P.R.

40-012 at p. 17,226 and Re Tooheys Ltd., Tooth & CO.

Ltd (1979) 39 F.L.R. 1; (1979) A.T.P.R.

40-113 at p. 18,186.

The Tribunal shall not

setting aside or varying the Commission's determination unless it is

satisfied in all the circumstances that the provision of the proposed

make

determination

affirming,

conduct would result,

or be likely to

result, in a benefit to the

public and that, that benefit would outweigh the detriment to the

public constituted by any lessening of competition that would result,

or be likely to result,

if the proposed conduct were engaged

in.

One of the applications for authorization was treated

by the

parties and by us as being in respect of an arrangement that falls in or may fall in an exclusionary provision within the meaning of that expression in S . 4D of the Act. The test is the same whether or not

the provisions

of the arrangements are governed by sub-s.

90(6) or

constitute "exclusionary provisions" because the language of the relevant sub-section in that event, namely, sub-s. 90(8), is in all

material respects the same.

Hence,

for

all

practical purposes one

applies the public benefit

and

detriment test already outlined. We

note that this was also the Tribunal's view in the

1978 determination:

see The Media Council Case (supra) at pp. 17605-6.

In support of the

proposition that detriments is appropriate under both sub-ss.

similar

process

balancing

benefits

and

90(6) and 90(8): see -

The

Locksmith's Case (1980) A.T.P.R.

40-176 at p. 42,431; also In re Rural

Traders Co-operative (W.A.)	Ltd. ("The Rural Traders Case") (1979) 37
F.L.R. 244; (1979) A.T.P.R.	40-110 at p. 18,123.

17.

When applying the statutory test of balancing public benefit against public detriment we must determine, so far as is reasonably

practicable, what would

be likely to happen in practice in the absence

of this Tribunal's authorization of the 1986 Codes such that the 1986

Codes would not be operative. Market forces would

at work,

involving questions such as the likelihood of advertisers, advertising

agents and the media imposing their own codes, controls or standards

of conduct without the restraints imposed

by the 1986 Codes.

Although the Codes and conduct previously authorized by the Tribunal and the Commission (excluding the 1986

Codes) would probably

technically remain authorized and the conduct countenanced

by them

would also probably retain the protection of the authorization, we do

not accept that the previously authorized Codes and Standards would continue to remain under the protective umbrella of the previous

authorizations other than for a short period

of time.

If this Tribunal were

to conclude that the application

of the

statutory test formulated

in sub-ss. 90(6) and

( 8 ) led us

to. refuse

authorization of the 1986 Codes then the very

fact that certain of

their content has already been the subject of authorization which

would remain technically

in force must then, in our view, lead

the

Commission to exercise its powers pursuant

to sub-s. 91(4) and make a

determination revoking the relevant authorizations at least to the

extent that their continuance would be inconsistent with

the findlngs

of this Tribunal

in relation to the 1986

Codes.

Also, it is

difficult to see what, if any, authorizations of the old Codes and Standards would be to the

practical

value

the

existing

Eledia

18.

Council and its constituent and affiliated bodies in the event that this Tribunal decl'ined authorization in view of the dependence of the operation of the Accreditation System (approved in 1978) upon the

legal status of the Advertising Standards and Code of Ethics of the

Media Council from time	to time (see Accreditation Rule 31 as
mentioned earlier).

The subsistence of the present authorizations, both

of the

"old Codes" and of

the Code content

of the Accreditation Agreement

(Rule 31), would in

our opinion be merely

a temporary technicality

which the Commission would be bound to

set to rest as soon as possible

after this conclusion would result

Tribunal

were

refuse

authorization.

Any

other

in a nonsense, set at nought the powers of

this Tribunal as the stakutory body charged with the duty

of reviewing

authorizations granted

by the Commission and

be disruptive of the

efficient working of the Act.

In description of anti-competitive lessening

our

opinion, conduct

that

answers

the statutory

of	competition does not

necessarily constitute anti-competitive detriment for the purposes of

S. 90.

It is erroneous to equate anti-competitiveness with detriment.

Anti-competitive behaviour may in certain circumstances be a positive benefit.

It is important to note that the Commission, the subject o f this review, is not directly concerned with

authorization granted by the

the rules, codes or procedures

of the constituent or affiliated

organizations of the Media Council; including bodies such

FACTS,

FARB and the APB.

Nor are the arrangements between the Media Council

19.

and the other foundation bodies, the AFA and the

AANA, in relation to

the ASC the subject of this review.

Nor is this review directly

concerned with the charter

or the procedures of the ASC itself.

Hence, the grant of any authorization in this matter would not operate as a grant of authorizazion in respect of any of the rules, codes or procedures under which the constituent or affiliated organizations of the Media Council operate. However, in applying the statutory tests

to the six Codes with which this application

is concerned, bearing in

mind

that

they Accreditation Rules apply,

are involved

here as standards to

which

the

we must have regard to the practical

operation of those Codes as we perceive it is likely

to be. This must

be viewed in the context of the operation of the self regulatory

system as a

whole.

The authorization mentioned earlier

Commission had before it the various applications

for

respect of

the

1986 Codes. It

seems that the Commission exercised the power conferred

by sub-s.

90(13) of the Act, namely, that as the applications were made by the

same body and involved

the same or substantially similar issues, the

Commission could treat the applications as if they constituted a single application and, therefore, prepare one draft determination in relation to the applications. It is the determination of the Commission in relation to the applications for authorization that is the subject of the review before us pursuant to sub-s. 101(1) and that

determination adopted a composite	or global view in respect	of the
applications.

The Codes do not exist independently of their respective

rules; each Code

is but the

sum of the rules of which

it consists.

20.

There is also a real degree of overlap between certain

of the rules in

!	one Code with rules	in another Code. Each	Code must be examined, both
~

in content and prospective operation, in its own right and as part of

the set of related Codes; related because they overlap

or interact

with each other and are administered by various bodies which are

common to more than one.

It is important to note that the task of

examining each of the six Codes requires an examination

of each of its

components, namely, its rules.

Also, it is necessary to keep in mind

that the Codes are part of a larger scheme and, therefore, to consider the operation of the Codes and the scheme as a whole as well as independently of each constituent element.

The Tribunal must engage in a rehearing in the fullest sense

and it must reach its own conclusions on the evidence. The reasoning process of the Commission is not itself the subject of this inquiry:

The Q.C.M.A.

Case (supra)

at pp.

17,226-7; The Media Council Case

(supra) at p. 17,601; Re Tooheys Ltd., Tooth & Co. Limited (supra) at p. 18,183; The Rural Traders Case (supra) at pp. 18,122-3 and -

The

Locksmith's Case (supra) at

p. 42,430.

The comparison conduct and the future without the relevant conduct: Re Tooheys Ltd.,

is between the future with the relevant

Tooth & Co. Ltd.

(supra) at pp. 18,186-7.

It is doubtful if past

benefits may be relied on in support of the present applications for authorization (see A.C. Hatrick Chemicals Pty. Ltd. (No. 2), (1978)

A.T.P.R. 40-057 at p. 17,590 and Re Tooheys Ltd., Tooth & Co. Ltd. (supra) at p . 18,186) except to the extent that the past may	be
indicative of the future.

21.

The application of sub-ss. 90(6) and 90(8) must involve a

number of comparisons. In identifying the relevant public benefit the

Tribunal must compare the position which would apply

in the future

were the proposed arrangement not entered into, or given effect to, with the position in the future which would arise if the arrangement

were entered into or glven effect to.

The Tribunal must consider all

the circumstances that

relate

public benefit including how the

proposed arrangement is likely to operate in practice

so as to give

rise to public benefit.

The Tribunal is not confined to some narrow

! '

or rigid examination

the documents constituting the

Codes. Our

function is to examine the practical operation or working out of the

subject matter of the application for authorization.

( i

6.	THE CASES OF THE MEDIA COUNCIL AND	THE ACA
6.1	The Media Council's case

The i4edia Council's case before the Tribunal rested on five

main propositions:

1. The Codes

"encourage

honesty,

fairness,

responsibility,

decency and

accuracy

in advertising". While the Codes

overlap the general

law, they "embody higher standards and

cover

different

fields"

. The Codes seek

reflect

"responsible community standards". In effect

it was claimed

that the beneficial character

of the standards embodied in

the Codes

is patently obvious;

it is the control of

"misleading and	deceptive,	harmful	offensive"	and
advertising.

22.

2. There are pronounced operational and enforcement efficiencies by comparison with the legal system or vetting by individual

media operators.

First, the Codes are generally accepted and

applied

individual advertisers and advertising agencies. The Codes have the consent of the governed

and, in any event,

there is the force of peer group pressure.

Second, the

system

has

vetting

procedures

collectively

and

expertly

administered by bodies within the industry which are

speedy,

economical,

preventative,

flexible

and

conducive

uniformity.

Third, in so far as doubtful advertisements may

be	published, the system responds to complaints through the

ASC and offers the prospect of speedy withdrawal

of offending

advertising

and the imposition of penalties additional to

those that would

be enforced by the Courts.

I :

3 .

Greater reliance upon government controls would not only be

I .

characterized by operating

inefficiencies

but

would

politically and constitutionally difficult to achieve.

4 .

Self

regulation,

with

only

limited

participation

"outsiders", is appropriate not only

for efficiency but also

because the Code system furthers the legitimate interests

and

aspirations

of the advertising industry; the Codes seek to

I ' I .

substitute the "collective

industry

wisdom"

for the

short-sighted and foolish decisions -'the lapses

of judgement

and experience - of a minority of the industry.

5 .

"There are no anti-competitive detriments."

As a matter of

principle, an anti-competitive effect may be a public benefit

2 3 .

rather than a detriment. In this

case, the Codes incorporate

I .

standards	and	procedures	which	are entirely	beneficial.	,
,l

Moreover, competition, when properly understood, does

not

include all the behaviour by which one competitor may seek	to
advance himself over his rivals. A competitor who murders,

maims or imprisons his rival is not engaging in competition.

I	Nor is one who lies or uses harmful advertising.

6.2

The ACA's case

I ?

In its submissions and in examination of witnesses, the ACA

explored numerous strands

of complaint about the Media

Council's Codes

and the workings of

the associated structure. Certain assertions and

arguments were not proceeded with to the conclusion of the hearings.

I . '

In the end, the substance of the argument put to the Tribunal by the

ACA can be summarized in the following general propositions:

1 :

1. The Codes and the procedures for their implementation have a clear anti-competitive effect. That this constitutes a detriment is demonstrated by numerous examples in which the outcomes of the operation of the self regulation system are plainly contrary to the public good.

2. The benefits resulting from application of the Codes, as

accepted by

the Tribunal

in 1978, were

benefits

potential nature only which remain substantially unrealized

in practice.

24.

3 . Procedures for the review and revision of the Codes, so as to reflect changing attitudes in significant sections of the

community, have not

kept pace with needs arising from the

emergence of new issues, such as sex stereotyping and other	I.
! -

forms of

discrimination

advertising,

the appeal of

cigarette advertising to adolescents and the control of

advocacy advertising.

Interpretation of the Codes in practice

by the ASC

has been

neither consistent nor responsive	to emerging public concerns
and does not invite confidence.

5. A self regulation system potentially can exhibit benefit

exceeding anti-competitive detriment; but changes to the

Media Council's system are needed

to make the system less

inward looking, less self serving and sufficiently responsive

to public interest concerns

about the secondary impacts

advert is ing .

6 .

In particular, the balance of ASC membership and the absence

: -:

of adequate participation from consumer interest groups

the workings of the

Nedia

Council's

system

reduces

effectiveness and equity.	These deficiencies should be
remedied.

6.3

The clash of values

There were fundamental differences between by the Media Council and the advertising industry on the one hand and

the case presented

___ - _.

- ..-. ..--

i	25.
I

I	the case presented by the	ACA	on the other. There was a pervading
I

disagreement as to

the benefits and risks to the community resulting

from advertising.

The Media Council stressed the role of advertising

as an essential and commercially proper device for informing consumers

about available products.

The ACA stressed adverse secondary impacts

that were seen to warrant greater control at the expense

of market

freedom.

The participants found little common ground as

to what

represents suitable standards for advertising

in practice and

as to

the purposes and underlying values appropriate for a system for the

self

regulation of advertising. The Tribunal

considers

these

questions in some depth in later sections of this determination (in

particular Section 13.3).

7 .

THE CODES AND THE SELF-REGULATION SYSTEM

7.1 General

The advertising industry's self regulation system

of Codes

and procedures to apply them object of prescribing and monitoring standards

a self-imposed discipline with the

of advertising which

are said to be in the public interest.

The

stated objective

the

self regulation system is that

it is a series of advertising Codes

developed by common consent within the advertising industry to accord

with community expectations and standards which are administered

through a complex network

of institutions and procedures. Each

element in the system is designed

to perform a distinctive function

that due standards are maintained consistently with the efficient day

to day operation of advertising work. Breaches	of the Codes expose
the of€ender to penalty.

26.

The inception and co-operated in the establishment and implementation of

parties which have adhered to the system since its

its

procedures are, the

Media

Council

and

its

constituent

and

affiliated organizations from the media sector, the AFA on behalf of

the advertising agents, and the AANA which represents major companies

advertising their products through the media.

The the present system of administering authorized Codes.

proposed conduct, with the revised Codes, would employ

It is not

possible to assess the effect of the proposed new Codes without examining also the likely force

the procedures and practices by

which they practice. Much evidence

would

administered,

enforced

and

interpreted

was	presented in this regard and will be

discussed in Section 11.

7.2	The wider regulatory context

All

comply with the requirements of Federal and State legislation, and

(for the electronic media) with the standards and conditions imposed

advertisements

displayed

conventional

media

are

expected

comply with the Media Council's Codes. They

must

also

by the Australian Broadcasting Tribunal ("the

ABT").

Federal and

State Parliaments have enacted legislation

to protect consumers from

abuses perceived

to arise from the

power of advertising.

The Act, pursuant to engaging in misleading or deceptive conduct or conduct that is likely

52, prohibits corporations from

to mislead or deceive. It also prohibits false representations about

27.

goods and services offered

by suppliers (e.g.

s . 5 3 ) .

The Act covers

many

areas

where

consumers

are

vulnerable

and

where

selling

malpractices are

representation in relation to advertising of employment and the sale

of land).

common

(e.g.

bait

advertising

and

false

;	The Broadcasting & Television Act 1942 empowers the ABT to

I	determine standards for programs broadcast	and	to grant, renew,
!

I	suspend, revoke and accept the surrender	of licences to broadcast.
I

That Act prohibits the broadcasting of advertisements

O E

certain

products, notably medicines (unless approved by the Secretary of the

Department of Health) and cigarettes. It also imposes ultimate

liability for offensive advertising on the licensees television stations. The ABT publishes program

radio and

and	advertising

standards , both of which are reviewed from time to time

by it in

consultation with the public and the industry. The

ABT's Advertising

Standards charge licensees

with responsibility for the form and

content of advertisements they broadcast, and cover:

.	compliance with other laws;
.	the scheduling of advertising;
.	the identification of advertisements;
.	the identification of advertisers: and
.	local content requirements.

Advertising a variety of medicines and therapeutic products is restricted by statute in the States: for example, in N.S.M. by the

Poisons Act 1966 and the

Therapeutic Goods and Cosmetics Act 1972.

I	Numerous other Acts also include provisions that limit advertising	in
I	I
specific ways.

28.

The capacity of advertisers

inform

freely

potential

customers about available

goods and services through the media

can

also be limited by the policies of particular media.

The proprietor

or management of any advertising medium has the right to refuse

placement or request amendment of	any advertisement that is considered
unacceptable by that medium.

The Media Council states that its self regulation system complements these other forms

of control on advertising. This view is

supported by evidence

that

statutory

control

is, on

occasions,

designed and conducted with regard	to the parallel operation of the
self regulation system.
7.3 The system of Codes

The system of Tribunal's decision in 1978.

codes has changed significantly since the

As then authorized it comprised an

Advertising Code specifically with advertising of slimming preparations and the like,

of Ethics

and

three

Product

Codes

dealing

hair

pieces

and authorizations by the Commission allowed the evolution of the Codes

treatments,

and domestic

insecticides.

Later

the addition of Product Codes for therapeutic products, cigarettes and

alcoholic beverages. Comprehensive review of

the Codes by the Media

Council since

1983 has led

to significant redrafting to achieve the

system of Codes that	is the	subject of the present proceedings, and
which comprises:

29.

.	the Advertising Code of Ethics;
.	the Therapeutic Advertising Code;
.	the Cigarette Advertising Code;
.	the Alcoholic Beverage Advertising Code;
.	the Slimming Advertising Code; and
.	the Domestic Insecticide Advertising Code.

The Advertising Code of Ethics is a general code stipulating required standards for all media advertising. The other five Product Codes add requirements for the advertising of certain classes of product where the advertising industry has concluded that undesirable

advertising might contentious practices are ruled out.

appear

unless

specific

potential

abuses

and

As we said earlier, a seventh

code, setting standards

for

mail order advertising, is in the process of review by the Media Council and is not the subject of an application for authorization at this stage.

7 . 4

System

governance

Policy decisions on the

Codes, on system structure

and on the

composition of component bodies of the system, are made by the Media Council or are delegated to other bodies under its authority. The Media Council's activities are deeply concerned with advertising

matters and its operating expenses

are met by

levies from members

broadly in includes numerous constituent

accordance with their advertising revenues.

Clembership

and associated media organizations, with

the result that proprietors

of Australian print, radio, television and

other media are well represented.

30.

The AFA represents the vast majority of advertising agents in

Australia.

The advertise their products. Neither the AFA nor the AANA, representing

AANA represents a large number

companies which

other arms of

the advertising industry, participate formally in the

overall governance of

the self regulation system.

However, the AFA

and the AANA, Australian Advertising Industry Council ("the AAIC") which provides a

together with the Media Council, are members

the

forum for consultation

and

a common platform. They

also

nominate

members of certain

bodies

that

perform

roles

within

the

self regulation system, notably the ASC.

The	pattern of representation on the several bodies within

the self regulation

system, is perceived by the ACA and

some others to

bring into question the credibility

of the system and its capacity to

exercise sound judgement. This issue is discussed separately later.

7.5

Code review and revision

The Codes and Standards Authority ("CASA") is a committee of the Media Council established

in December 1982 to advise the Media

Council in all matters relating to the Codes and Standards. Set up in

the first instance to oversee a comprehensive review

the Media

Council's Advertising

Codes, it was retained as a standing body and

meets monthly. organizations, with two observers nominated

has

seven

members,

all

representing

media

by	the AFA. Advertisers

are not represented directly

on CASA.

I I

31.

CASA is in turn advised in three sensitive product areas by

sector advertising councils which have a wider representation of

advertisers. These councils are the Therapeutic Advertising Council

("the TAC"), the Tobacco Products Advertising Council ("the

TPAC") and

the Alcoholic Beverages Advertising Council

("the ABAC").

The TAC

the oldest established council. It has nine

members. Three of its members represent media interests, at least of which must be a member of CASA. Of

one

the others, one represents the

! '

AFA,

one

the AANA and four represent manufacturers' interests.

The

TAC is membership a representative from the Federal Department

supported by a

Working Party which also includes in its

Health.

The TPAC has seven members. Four members represent

the print media.

There is one member from each of the

AFB, the AANA and the Tobacco

Institute of Australia.

The ABAC has eight members, four of whom

represent media interests (one of whom must be a member

CASA),

three represent advertisers of beer, wine and spirits and one member

is from the AFA.

Evidence indicated

that the Nedia Council

contemplating correspondlng public health representation	on Working
Parties in support of the TPAC and the ABAC.

The revised Codes which are the subject of this proceeding are derived from a systematic review of Codes conducted in 1983 under

CASA.

Submissions were

invited

from the public. Many submissions

were

received,

processed procedures, which are now adopted by the Media

and

considered

according

defined

Council as procedures

i -

for regular review.	l
!

3 2 .

The Media Council states that Codes are not drafted, or

intended to be

read, as statutes. Rather

, they are drafted in lay

language to assist practical advertising industry people

in their duty

to prepare and publish advertisements that conform with advertising

ethics and with current legislation.

7.6 Clearance

procedures

Each scrutinizes and approves certain advertisements prior to publication,

arm of the

media

maintains

an organization

which

display or broadcasting.

The following organizations presently exist:

1. The Commercials

Approvals

Office

FARB checks

radio

advertisements for products covered

by the

Media Council's

Advertising

Codes

(whether

they

are

recorded

broadcast live);

I !

2. Through its Commercials Acceptance Division, FACTS checks and

approves all advertisements

covered by all

the

Media

Council's Codes.

This procedure is, in practice, conducted

within the voluntary commercial clearance system operated

, .

FACTS on behalf of all its member statlons.

One result is

that	all television commercials are checked for compliance

with the ABT's standards;

3 . Print media advertisements for products covered by the Nedia

Council's Product Codes are checked and approved

by the APB;

3 3 .

4 .

All outdoor advertising for products subject

the Media

Council's Product Codes is examined for approval prior to display by the OAAA; and

5. Cinema advertising, whether as slides or film, is subject to

prior clearance

by the ACAC.

Each media organization that operates the dilemma of avoiding procedural delay

a clearance body faces

to the publication

broadcasting of advertisements (the overwhelming proportion

of which

satisfy the Codes) while efficiently checking for compliance. Except

for television, where

all commercials are checked voluntarily

for

reasons related to the

ABT's

licensing obligations, the clearance

bodies confine obligatory clearance to advertisements for products

subject to the tighter

constraints of the Media

Council's Product

Codes.

Clearance is determined by experienced permanent staff at

stage in inexpensive modification if a breach of a Code is found.

the development of the final advertisement that allows

In the

normal course clearance processes are

rapid,

taking only hours

,	complete. Each formally cleared advertisement is given an identifying
i	number so that the relevant medium can readily determine whether the
!
advertisement has been cleared.

l	The high volume and rapid throughput	of the clearance bodies
i	I

requires a somewhat mechanical approach to the interpretation of the

Codes

in assessing each advertisement. Heavy reliance,

this

regard, is place on precedent. The clearance bodies (except in respect of television advertisements) also provide advice on request

3 4 .

as to the implications of the Advertising Code of Ethics with respect

to specifically planned advertisements.

Failure to obtain clearance for appropriate clearance body constitutes

an advertisement from the

a breach of the Code

and

of the relevant media operators to publish or broadcast the advertisement. The requirement for prior clearance of advertisements for television or for certain product classes, therefore also, has force against unaccredited agencies and direct advertisers.

exposes the advertising agency concerned to penalty under the system. refusal

7.7 Advertising

tribunals

There are two bodies within the Media Council's system advertising self regulation which are constituted

to	adjudicate on

complaints against specific advertisements.

The Joint Committee on Disparaging Copy ("the JCDC") handles complaints within the advertising industry relating to Rule

2.16

the Advertising Code of Ethics which prohibits unfair

or misleading

disparagement of identifiable products, services

or competitors.

The

JCDC determines whether an advertisement has wrongly disparaged the

relevant goods, services

or competitors and, as a result, is in breach

of the

Code.

The JCDC has six members, four representing media

interests] one member from the AFA and one from the AANA. The Chairman] who is one of the four representatives of Media Interests, is appointed by CASA.

35.

The Advertising Standards Council ("the the Media Council, the AFA and the

ASC") is funded by

AANA.

It has the central function

of receiving public complaints about specific advertisements and then

determining

whether

such

advertisements

are

in breach of the

Advertising Codes.

The ASC, by its rulings, interprets the Codes in

practice

that its rulings serve as references and precedent for

clearance

bodies

and

for members

the

advertising

industry

generally.

The ASC consists of an independent Chairman

(who is, as

was his precedessor, a retired

Judge) with twelve other members; seven

of whom are public members unconnected with the advertising industry

and five of whom are representatives

of the advertising industry.

Members of the public may complain about an advertisement any one or more of three ways: by writing to the medium in whlch the advertisement appeared; by writing to the clearance body for the

relevant arm of the Procedures for lodging

media; or by writing

direct to the

ASC.

complaints

have

from

time

been

advertised to the public by the Media Council.

The ASC is the

final

appellate body for public complaints. When the ASC receives

complaint, directly or referred from the media, its Secretariat seeks

comment, where applicable, from the appropriate clearance body,

the

advertiser, the advertising

agency

and

the

medium

concerned.

Proceedings

the ASC in dealing with

complaints are not public,

although its rulings are published.

The ASC gives advice to the Media Council and its committees

tribunal under the provision of the Rules Governing the Accreditation

of Advertising Agencies.

relation to the Codes. Its Chairman also acts as an appeals

3 6 .

7.8 Penalties and appeals

the administration of the Advertising Codes is conducted under the Media Council's rules, which also provide for the accreditation of advertising agencies (such conduct was authorized by the Tribunal in 1978), the Media Council self regulation system is

able directly

to exercise sanctions

on advertising agencies where

breaches of the Codes

or of required Media Council procedures occur.

The AMAA is a committee of the Media Council empowered

accredit advertising agencies. It has 13(12) members, l l ( 1 0 ) of which represent media interests and two represent accredited agencies. The AMAA performs other functions, one of which deals with breaches of the Codes. Breaches of the Codes are reported to it €or determination of penalties against the advertising agency concerned. idinor or

technical breaches will

be noted in

the agency's file:

significant

breaches can lead to

a reprimand and warning: serious breaches, and

especially repeated breaches, incur monetary penalty.

The

ultimate

sanction may be the loss of accreditation.

The monetary penalties of

which evidence commission on the relevant advertising.

was

given

were

pitched

to exceed

the

agency's

The Media Council's system is less able to impose formal sanctions on an advertiser responsible

for a breach

of the Codes.

Once a breach is determined

the prior clearance process,

determination of the ASC, the media will not publish or broadcast it. Where an advertisement is subject to clearance the sanction is

complete and modified advertising must be prepared. In other cases,

37.

the sanction is confined to advertisements that are intended for

repeated publication

or broadcast. As a result additional costs are

incurred and a planned marketing campaign

can be disrupted.

Where an advertisement advertiser has access to appeal procedures. For the print

has

been

refused

clearance

media, an

appeal is heard by the

Review Panel of the APE with a further right

appeal to the Chairman of the constituted by three senior executives .of member organizations of the

ASC.

The APB Review Panel

Bureau.

An appeal lodged against

a decision of the Commercials

Acceptance Division ("the CAD") of FACTS is heard by the Commercials Clearance Appeals Committee("the CCAC") of that body which consists of

the Chairman

FACTS,

the Chairman of the FACTS Television Codes

Board (which oversees the CAD), and a nominee

the AFA. An appeal

against refusal of clearance by FARB is heard by the Codes Committee of FARB, which consists of four radio station executives. There is no

further right of appeal against decisions	by the FACTS and FARB appeal
bodies.

7.9

Table of representation on the Media Council's system bodies

As noted earlier, the credibility

judgment of the Media Council's self regulation system was questioned

in evidence and argument, inter alia, on grounds that the membership

and capacity for sound

of	the various bodies within the system is not appropriate. The

following tabulation interested parties on the relevant bodies:

exhibits

the

pattern

of representation of

38.

POLICY AND ENFORCEMENT

Media Council Executive 7

AMAA	10	12	2
CODES

CASA

* 2

TAC

Party

Working

ABAC

TPAC

TRIBUNALS

JCDC

ASC

" 1

APPEALS

Review

APB

Panel

CCAC

FACTS

FARB

Codes

C'tee

........ ........ ........ ........ ........ ........ ........ ........ ........	I	,
I .;
L ,
Notes :	>
!

Present at meetings

observers;

media

observer

ASC

CASA.	represents	meetings	.	I	i
! I -
L.

Media representatives

TAC, ABAC, TPAC, JCDC include one person

representing	CASA.	, r.
:. ,

Other representation:

L '

Manufacturers:

TAC(4) , TAC Working Party (11, ABAC(3) ,

- . .

TPAC(2), Department	of Health.	p
e :

39.

THE CODES

8.1

Broad structure of the Codes

The variety in their form and content.

Codes proposed for authorization exhibit considerable

Particular Codes and elements of

, .

them differ in their scope, purpose,

generality

expression,

standing in relation to current law and regulation and precision of application. The six Codes fall into two classes. The Advertising Code of Ethics is a general statement setting out requirements to be satisfied by all advertisements. The Tribunal is also asked to

authorize five amplifies the general requirements of

Product

Codes; each of which

particularizes

and

the Advertising Code of Ethics

when applied to a class of products: cigarettes; alcoholic beverages;

therapeutic products; treatments; and domestic insecticides.

slimming

preparations;

appliances

and

The Media Council perceives that separate Codes are necessary for particular classes of products because of peculiarities of the

products themselves

or the requirements

the law with respect to

them, all of which bear upon the advertising of those products. For example, cigarettes may not be legally sold to minors (variously

defined in different States) and are subject to public health concerns

about promotional methods which encourage consumption.

The

sale

alcoholic beverages to the young

is also restricted.

40.

Each Code consists

of:

1. A Preamble which states the object or intent of the Code and

statements of principle bearing

on its application;

2. Code Rules which stipulate requirements of form, content and presentation to be satisfied by all relevant advertisements; and

3 . Supplementary information helpful to the application and

enforcement of the Code which includes procedures

for the

handling of complaints against specific advertisements.

8.2	Relationship to the law

Many rules of the Codes proposed for authorization directly reflect existing requirements

of the law.

For example:

"Advertisements must be truthful and shall not be misleading

or deceptive" - Advertising Code of Ethics, Rule 2.5;

and

"A11 television commercials shall comply

with:

(a)

Australian Broadcasting Tribunal Television Program

and Advertising Standards"

- Advertising Code of

Ethics, Rule 2.18.a.

The wording of such rules is not a precise statement of the relevant law and no provision is made for differences in the law between States.

Other

Code rules that do

not reflect laws are claimed to

reflect profess

,ional ethics and community requirements. For example:

41.

avoiding grave offence:

"An advertisement

shall not contain anything which

in the

light of generally prevailing community standards

is likely

to cause grave offence to the community or a significant section of the community" - Advertising Code of Ethics, Rule 2 . 4 ;

avoiding undesirable	advertising	impacts	on vulnerable
groups:

"No advertising for cigarettes may include persons who have major appeal for children or adolescents under 18 years of

age"	- Cigarette Advertising Code, Rule 2 . 4 ; and

. .

preventing advertising abuses which encourage consumption of certain products in ways or in quantities beyond those thought to be accepted by the general public:

"The content of cigarette advertisements shall be directed only to adult smokers and only intended to effect or deter a

change oE brand"

- Cigarette Advertising Code, Rule 2.1

"Advertisements for alcoholic beverages

shall not show people

consuming alcoholic beverages shortly before or whilst driving motor vehicles, swimming, operating boats or shortly

before or whilst engaging

in any activities or work where

such drinking

potentially

dangerous"

- Alcoholic

Beverages Advertising Code, Rule 2.7.

Some broad patterns are apparent from

enable the Code rules to be classified according to the existence of

corresponding laws:

the evidence which

1. the Advertising Code of Ethics reflects laws, regulations and rules that are justified on other grounds:

2 . the Cigarette Advertising Code is predominantly a set of rules not founded upon applicable laws. As advertising of cigarettes is prohibited in the electronic media, this Code

1 :

42. I -

applies

only to print media, and cinema and outdoor

I I -

advertising:

3 .

the

Alcoholic

Beverages

Advertising

Code is also

predominantly a set of rules that

is not founded upon

I	applicable laws: and

4 . the Therapeutic Advertising Code closely reflects laws which

restrict

the

advertising

of medicines

and

therapeutic

treatments: but its rules

go further and restrict, in like

manner,

advertising

of all

therapeutlc

claims

whether

requirements of the law

to that effect are present

or not.

8.3

Precision and generality in drafting

The rules in the Codes vary considerably in their precision

expression. These variations mean that

particular instances,

where it is claimed that an advertisement breaches a provision of the Codes, there may be some difficulty in interpreting the relevant rules, adjudging breach and determining a sanction. Plainly, rules expressed in precise language may be more easily interpreted than

those expressed in more general terms. On the other

hand,

was

argued before us that a rule in

general-terms lends itself

to more

flexible interpretation in the light of experience and changing	L
community attitudes.	i

Some Code rules are

so broadly expressed as

to be little more

than a statement objectives. For example:

the draftsman's perception of desirable social

43.

"Advertisements for any product which is primarily meant to be used by and/or purchased by children shall not contain anything which would result in their physical, mental or

moral harm..."

- Advertising Code of Ethics, Rule 2.13 (in

part

1 ;

"In essence,

advertisements

for

cigarettes

shall not

encourage people, particularly the

young, to start smoking or

encourage existing smokers to increase their consumption."

Cigarette Advertising Code, Rule	1.1;
"Advertisements should not use	copy or illustrations which

indicate that Advertisements may depict success

sexual

success is due

smoking.

or distinction but shall

not claim that cigarette smoking contributes significantly

the attainment of social or business success or distinction."

- Cigarette Advertising Code, Rule 2.7; and

"Advertisements for alcoholic beverages shall be directed only at increasing brand or beverage share of existing markets, rather than promoting any increased consumption of

alcoholic beverages."	- Alcoholic Beverages Advertising
Code, Rule 2.3.

Other rules, while still expressed

in general terms, are more

specific in identifying

consequences to be achieved or avoided. For

example:	i .'
c -

"All advertisements for cigarettes must carry the health

warning in printing or writing of such a size and prominence

that it may be read

or understood with ease."

- Cigarette

Advertising Code, Rule 2 . 5 ; and

"Advertisements for alcoholic beverages shall not depict or

encourage consumption at a frequency

or in a quantity likely

lead

to over indulgence." - Alcoholic

Beverages

Advertising Code, Rule

2 ~ 1 0 .

Many rules are expressed with

such precision that compliance

or breach in specific cases must be self-evident. Advertising Code has

The

Therapeutic

numerous

rules

precluding

unverifiable

advertising claims

or claims of efficacy for particular medical

i -

s .

conditions. Other Codes

also

include

rules

expressly

prohibiting

defined advertising claims. For example:

4 4 .

"No advertisement

may

claim

health

properties

from

any

cigarettes

..." - Cigarette Advertising Code, Rule 2.11

(in

part

1 ;

"Advertisements shall

not claim that vitamin, mineral

herbal therapy in themselves contribute to weight loss."

Slimming Advertising Code, Rule 2.6;

and

"An advertisement relating to vitamin therapy

... shall ... :

.. . contain no claims or dramatisation of benefits for

irritability, sexual activity, nervousness or that vitamins will stimulate appetite or growth or provide nutritional insurance;" - Therapeutic Advertising Code, Rule 2.6.1.3

Some rules conduct or which include defined classes of people. For example:

prohibit

advertisements

which

show

defined

"NO

advertisement shall show a child using any insecticide

product. "

- Domestic Insecticide Advertising

Code, Rule

2 . 3 ; and

"Except in crowd or other scenes, where background is not

under the control of the advertiser, no persons shall be

employed in cigarette advertisements who are under 25 years

of age and will not be represented to appear to be below this

age.

- Cigarette Advertising Code, Rule 2.2

These the Codes before the Tribunal

examples illustrate the diversity of form evident in

and the range of differences

precision of expression. In considering the workings of the Codes in

practice and the resulting benefits and anti-competitive detriments

the Tribunal is obliged to consider the implications for effective

interpretation and enforcement of the	Codes	arising	from	this
diversity.

4 5 .

8 . 4

Procedural provisions

Certain administrative procedures of the self regulation

system are enforcement that compliance with these procedures

seen

to be so central

to its orderly

working

and

is enforced as Code

rules are enforced;	by treating non-compliance	as a breach	of the
Codes.

For products subject to one of the Product Codes, and for which clearance by the appropriate clearance body

is required prior to

publication or broadcasting, failure to gain approval

in due form, and

for print advertlsements to incorporate the Code approval number

the advertisement, exposes the offender

to sanction.

The statements

of administrative and complaint procedure which form part of each Code

include provisions to this effect.

8.5

The international context

Material

before the Tribunal included published reports and

commentaries on procedures adopted for the regulation of advertising in other countries. It is apparent that there is some form of self regulation by the advertising industry in many market economies: including the major countries of Europe and North America. It is

apparent also that these countries have from time

time modified

arrangements, sophistication, in the light of

times

with

increasing

these

regulatory

experience and changing perceptions of

the needs to be served.

46.

I	8.5.1.	Self regulation in other countries
I
~
i	I

l	United Kingdom procedures were stated in evidence to be the

model for the Australian system. Codes of advertising practice are

I I

developed, publicized and from time to time reviewed and revised.

The

Codes are administered

by an industry body called the Codes

I I

Advertising Practice Committee ("the CAPC"). Unlike Australia, where

the governing industry committee, the Media Council, is entirely

controlled by the media, the CAPC is a mixed lndustry body which

includes advertisers and advertising agencies.

This

Committee also

handles complaints about advertisements from competitors.

The Advertising Standards Authority ("the ASA") funded by a

levy on advertising revenues, has a role closely analogous to that of

the ASC in Australia as it is primarily concerned with the assessment

of complaints

from

consumers.

It consists of a

minority

"advertising" members and a majority

"public interest" members

appointed by the independent Chairman with regard to due "balance"

the Authority and to their capacity to contribute credibly

and to work

compatibly with other members. Xembers are appointed for overlapping

three year

terms. Neither government nor consumer organizations are

formally represented in the CAPC

or the ASA.

the Broadcasting regulations, directives and

and

Television Act, as well as

in the rules,

standards of the Australian Broadcasting

Tribunal. Literature has been less prone to government intervention.

Why should committees the ASC or the other bodies of the i4edia Council system tell us what

or bodies of men and women constituting

it is right for us to read, hear and see?

These considerations are at

the heart of the subject matters of this proceeding.

113.

There is, we think, a powerful argument to support the view

that there 1 s no room for intervention of a voluntary system in the

control of advertising matter beyond that which the law prohibits. If

this view were accepted it would follow that

a considerable content of

the Codes before us for review would

fail to meet the statutory tests

prescribed by the Act.

However, this very observation is itself

controversial in our society. There are those who believe in no censorship, those who believe in strict control and those, probably most people, who believe in some balance between the two extremes. It

was said by counsel for the Media Council that,

to the extent that the

Codes prohibit or restrict conduct beyond that which is proscribed

law, all they do is prevent the advertising of material which all Australians or the great majority of us would regard as offensive or

harmful. Some of the rules or parts of rules advertising of matter which we think all

prohibit the

or most people would regard

as legitimately the

sub-ject

of restraint. For example, advertising

matter

which

stresses

extreme

violence

or unduly

plays

upon

superstition or fear (Advertising Code of Ethics, Rule 2 . 8 ) . But the interpretation and enforcement of rules, even of this kind, rests to a degree upon the judgement of various bodies within the Media Council

system; especially the ASC

and CASA.

To the community attitudes to which

extent that Code rules truly reflect prevailing

few, if

any, would take exception we

think they are capable of being for the public good provided the

machinery adopted by the Media Council's

system properly creates them,

alters them from time to time as the need arises and effectively

interprets, administers and enforces

them.

114.

There is another class of rules which in our view cannot be

supported. They

are rules which suffer from uncertainty, ambiguity,

internal inconsistency or are on their face unable to work properly in

I	the public interest.
I
I	I

There are rules which are capable of ready interpretation

and

which probably reflect the views of most members of Australian society. Some of these rules may also reflect in part laws of the

community. An example is in the general Advertising Code of Ethics,

Rule 2.9 which states:

"Scientific, statistical or other research data

quoted in advertisements shall be

neither

!	misleading nor irrelevant."
I

There are some rules which, although views which most Australians would probably

on their face reflecting

endorse, depend €or their

interpretation and application upon judgemental considerations. They

ultimately rest on formation of judgement or opinion of the relevant

committees within the Nedia Council's system. Rules of this kind are,

our view, essentially

in the public interest provided the Media

Council's system of formulation, interpretation and enforcement of the rules works proporly and eEfectively. Examples of rules of this kind are Rules 2.4, 2.7, 2.13 and 2.15 of the Advertising Code of Ethics,

Rules 2.4, 2.7, 2.9 and 2.10

of the Cigarette Advertising Code, Rules

2.2, 2.4, 2.5, 2.8

2.10

the Alcoholic Beverages Advertising

Code, Rules 2.10 and 2.13

of the Slimming Advertising Code, and Rules

2.1.1.3, 2.1.1.4 and 2.6.1.3 of

the Therapeutic Advertislng Code.

We dealt in earlier sections with the Therapeutic Advertlsinq

115.

Code.

To the extent that it reflects the law it is in principle

desirable.

Some of its rules suffer from the defects

of rules in

other Codes to which we have referred.

The

Therapeutic Advertising

Code, by the very nature of the products with which it is concerned,

requires representation

relevant Code formulation, interpretation

and enforcement bodies knowledge and experience. We deal with this question a little later.

of persons

with

particular

specialized

The Tribunal is conscious of the need for close control of

the advertising

of goods for therapeutic

use.

The Therapeutic

Advertising Code prohibits absolutely certain statements

or references

to large numbers of specifled diseases, ailments, defects

or injuries

in persons: see Rule 2.2.2

and Rule 2.5.13. It

prohibits, with some

exceptions, certain diseases, ailments, defects or injuries in persons:

statements

or references

other

specified

see Rule 2.3 and

Rule 2.4.

This Code contains other rules, for example, Rul to Claims (2.9), Treatment (2.101, Professional Recommendation (2.111,

es r e1

ating

Testimonials

(2.121, Advertising Phrases (2.131, Disparagement (2.14)

and Samples (2.15). are based on assumptions that advertisements

Many of these are prohibitory in character and

of certain kinds are

undesirable. Some

of the rules prohibiting, absolutely or partially,

advertising of goods for therapeutic use

or claims with respect

them are plainly desirable

in the public interest: the benefit is

self-evident. Others are not

so evident or not evident at all.

Some

of the rules are plainly contentious

in our community.

We are not satisEied in all the circumstances that the

I I

116.

requisite

degree of public

benefit

exists

wit

:h respect

the

Therapeutic Code except in so far as its rules reflect the law. As we

propose to adjourn this proceeding our lack oE satisfaction may (or may not) be removed by further evidence. It is possible that many of

;

our reservations would disappear

if the

relevant bodies within the

Media Council's

system relating to this Code are restructured to

include wider representation than they presently

do.

Thus, some Code rules should be require reformulation. Some Codes as

abandoned, while others

I i	a	whole require critical
I

re-examination;

namely,

the

Cigarette

and

Therapeutic

Advertising

Codes.

In earlier

components of the Media Council's system including its committees and

councils. This is a critical aspect of our review. There is a need

for wider public input (both as to participation and consultation)

into the work of the Codes' formulation and complaint and appeal

sections

we expressed misgivings about various

bodies within the system: the

ASC, CASA, TAC, ABAC, TPAC, AMAA,

appeal bodies and the lredia Council itself.

The representation of the

media on the various bodies is disproportionate to other vital interests including advertisers, advertising agents and the public.

There is system of advertisers and advertising agencies. There

a need

for greater involvement within the Media Council's

is a real need

€or input from bodies concerned with consumer affairs and the welfare

oE children and adolescents and a need for an input from health

authorities over the whole range

of Codes.

Advertising vitally

I I

concerns and affects all people in the community, yet public representation is plainly Inadequate. Public confidence must exist in

117.

a system of regulation that

so vitally appeals to the public.

There is a

constituent and affiliated organizations to look closely at the Code

system and restructure its various committees and councils.

clear need for

the

Media

Council

and

its

The

membership

these bodies within the Media Council's

system should reflect the diversity of Australian society in matters such as age, sex, background, ethnic origins, colour and regionalism.

We refer to regionalism because Sydney appears to be the

predominant

influence on the Media Council's bodies. Doubtless this reflects the

fact that until recently Sydney was the headquarters

the

major

media interests.	This is no	longer the case.	Ne refer to two	of
these bodies only.

The industry and public members of the ASC.

Advertising Standards Council. There

are, at

present,

The public members are in the

majority, Although we have

not heard from the AANA in this matter

serious consideration should

be given to whether the interests of

I .

advertisers are sufficiently represented on the ASC.

Without, in any

way, seeking to detract from the quality, ability

or integrity of the

l .

members of the ASC, the manner in which public members are selected (that is by the Chairman), without the necessity for any conditions

eligibility

membership,

will

not

productive

of public

confidence. In the regulation of an industry that so vitally affects consumers, where the regulation is done largely by the industry itself and purports to serve the community as a whole, public confidence in

the system must exist.

i	118.
]
i

I	The vigorous complaints that have been launched against the

system by the ACA and supported by

others suggests to us that the

Media Council should itself, together with its affiliated bodies, look

closely at the constitution

of the ASC and reshape it and its rules

I	that,	so	far as public members are concerned, they include some
I
i

I	persons knowledgeable	of	the interests of the public; including the
I
l	young.
i
!

I	One point we see as important in any restructuring	of the
i
I
I

ASC's membership

that properly to reflect changing community

attitudes temporal limits should be placed upon membership

of the ASC

thus ensuring limited duration of office. Whether this is done by amendment to the ASC's Constitution to provide for rotation of

membership or by some other amendment

is not a matter which we propose

to consider. The ASC and other relevant bodies should attend to

that.

Whether appointment of the ASC's members should be

by its

Chairman, the ASC itself

or others is not a subject on which we

propose to express any views. The appointing person

or body should at

least consult, and be required by its rules

to consult, appropriate

public interest bodies including those concerned with public health,

consumer affairs

and the welfare of young children and adolescents.

We would add that we

see considerable benefit in the Chairman

o€ the ASC being a person with legal training and experience such as

the present Chairman

and his predecessor.

The same comments with respect

Codes and Standards Authority. We generally make

the

to	CASA and its Advisory Councils as we

I	I
I
I
I

119.

have with the ASC.

In addition, serious attention shou

be given to

increasing the degree of consultatlon

on questions of revising and

implementing the MCA's

Codes between CASA and representatives of'

appropriate health and consumer organizations and bodies concerned

with the welfare of children and adolescents.

see

considerable

force in the Commission a report to

suggestion of the ACA that CASA should furnish to the

be placed on its public register which

describes the consultations to which we have just referred and their

results.

We mentioned in earlier sections that existing rights of appeal within the Media Council system are inadequate. The Media

I '

Council should provide a clearly

expressed, well defined and fair

appellate structure, to include membership of outsiders, within its	.	.	.
, .

Code system.

It falls short at present.

Outdoor and cinema

advertising

have

characteristics

and

effects different from other advertising. Outdoor advertising may be visible from some directions or places and not others. The impact may be momentary (e.g. visible for seconds to drivers of cars). Cinema advertising has a highly captive audience unlike some forms of

advertising. Little advertising. When considering any revision

evidence

was

given

about

these

forms

its

Codes, the Nedia

Council should have regard to any special

peculiar problems

needs of these two forms of advertising. For example, should

special rule exist for outdoor

or cinema advertisements for cigarettes

as to Advertising Code)? There is a strong case

the

health warning (presently Rule

2 . 5

the Clgarette

for saying that the health

warning generally, but especially for outdoor and cinema advertising,

120.

should be in print or writing relative, in some specified proportion,

to the size of the print or writing of the advertisement itself.

Although we are satisfied that

some elements of the Codes

(e.g. rules which only reflect the law), other elements, would satisfy the statutory tests of public benefit it

if viewed in isolation from

is ultimately impossible to sever the elements.

We are

not

satisfied that the Codes under review would be

likely to result

overall benefit to the public. Nor are we

I .

'. '

satisfied that such benefit

as does exist would outweigh the detriment

to the

public constituted by any lessening of competition that would

be likely to result from the implementation of the Codes. propounded

The tests

,:.

sub-ss.

90(6) and

( 8 )

of the Act have not been

satisfied.

Aowever, the Nedia Council's Code system is capable satisfying these tests if its house is put in order,

This task should

be undertaken by the iqedia Council and its constituent and affiliated organizations in the light of our findings. It is best done, at least

initially, in-house.

Ne propose to allow a reasonable time

for this

to be done and to adjourn the proceeding

€or this purpose.

There is a final observation which we propose

to make.

This

is the first occasion

on which the

Hedia Council's self regulation

system has been comprehensively reviewed

a public body which has

taken evidence and had the benefit of argument from interested persons. The Media Council's system has now been in operation for

many	years and perhaps it is not surprising that as tlme passed the

I	121.
I
!

system

has

shown

evidence

of some degree of parochia

,lism and

unresponsiveness to changes in community attitudes and values. Yet

the	system of self regulation has intrinsic worth; but it should be

less wide and indiscriminate in its coverage. Ne

see

the role

for

self regulation

as being

smaller, although sharper. It should give

particular attention

misleading and deceptive advertising, the

spillover effects of advertising said to be directed to certain

sections of

the community

and to the impact upon children

and

adolescents.

The central issue posed by this proceeding is whether it is possible for a private regulatory

process, whose enforcement

is an

exercise of market power, to

be sensitive to and reflective of

community standards and values

so that its decisions contribute to the

welfare of

characterized. Whether it is possible to amend the Code rules and the

system of their implementation so as to satisfy this criterion remains

our society. The present Code system cannot

to be seen. We think there is sufficient present benefit

and prospect

of future benefit

to make the attempt very worthwhile.

When our findings have been considered by the Media Council the matter may be restored for any further hearing on the question of

the imposition of conditions

on authorization.

It may be that the

changes required to give effect to our findings are so extensive that conditional authorization would be inappropriate. In that event it may be necessary for the Nedia Council to seek fresh authorization to

its amended Code system.	However, it is to be hoped that, so far as
possible, these questions	may be satisfactorily resolved on a resumed

hearing and, to the extent that the Tribunal

is able to offer guidance

122.

;

to the Media Council with respect

to any proposed changes, we shall do

f .

. .

a .

i r

SCHEDULE A

WITNESSES - OCCUPATIONS

Allan James Asher:

Former Public Affairs Manager,

Australian Consumers' Association.

George Patrick Auld:

Executive Director, Media Council of

Australla.

Belinda Jan Boden:

Administrative Secretary,

Advertislng Standards Council.

Simon Fenton Chapman:

Director of Health Promotions

Services, South Australian Health

Commission.

William George Childs:

Director of Broadcast Practices,

FACTS.

, .J

Bruce Donald Cormack:

Federal Director

and Chief Executive

Officer, Advertising Federation of

Australia Ltd.

Peter Cullen:

Consultant in Government - retained

by Bionic Products Pty. Ltd.

Michael Matthew Daube:

Executive Director of Health

Promotion and Education Services,

Health Department

W.A..

John Anthony Dollison:

Chief Executive Officer and Company

Secretary, Tobacco Institute

Australia Ltd.

Roland George Muir

Deputy Assistant Director,

Everingham:

Australian Federation of Consumer

Organizations.

Desmond Lionel Foster:

Federal Director, Federation of

Australian Media B+oadcasters.

John Michael Furlong:

Secretary, Australian Publishers'

Bureau.

Brian George Gapes:

Advertising Administrator,

r '

Australian Clnema Advertising

Council - Outdoor Advertising

Association of Australia.

John Alfred Gilder:	Chairman, Joint Committee	on
Disparaging Copy.

L .

MdrLin Joseph Hartcher:

Executive offlcer, Federation of

Australian Radio Broadcasters.

Richard Clarance Kirby:

Former president of Commonwealth

Conciliation and Arbitration

Commission.

Former Chairman

of Advertlsing

Standards Committee.

Paul Christopher Magnus: Medical Associate

the Director,

National Heart Foundation.

Brian

Antony

Monahan:

Chairman,

Monahan

Daymen

Adams

Ltd.;

Chairman, Advertising Federation	of
Australia.

Carmel Josephine Niland: President, Anti-Discrimination Board

(NSW).

Maynard Rye

Deputy Manager, Australian

Consumers' Association.

Garwin William Rutherford: Chief Executive, Broadcasting

Station 2SM.

Brian

Leonard

Sallis:

Group

Managing

Director,

Advertising

Newspapers Ltd.

Ruth

Elizabeth

Shean:

Director,

Australian

Council

Smoking and Health.

Andrea

Joy

Shoebridge:

Education

and

Research

Officer,

Alcohol Advisory Council	W.A.
Incorporated.

Paul Burcher	Toose:	Former Justice	of the N.S.W. Supreme
Court;

Chairman, Advertising Standards

Council.	b
I
i

Peter Samuel	Vogel:	Director of research and development	,
of an electronics company.
I

Richard

Ewan

McDonald:

Assistant

Secretary,

Wilson

p ,

Therapeutic Goods Compliance Branch	i
of Dept. of Health, Canberra.

Diana Hardwick Wyndham: Member of the Women's Electoral

Lobby, NSW; Head of Research and

Information, Australian Film	and
Televlsion School.

SCHEDULE B

Abbreviations

AAIC	- Australian Advertising Industry Council.

AANA

- Australian Association

of National Advertisers.

ABAC

- Alcoholic Beverages Advisory Council.

ABT

- Australian Broadcasting Tribunal.

ACAC

- Australian Cinema Advertising Council.

AFA

- Advertising Federation of Australia Limited.

AFCO

- Australian Federation

of Consumer Organizations

AMAA

- Australian Media Accreditation Authorlty.

AMPA

- Australian Magazine Publishers Association.

APB

- Australian Publishers' Bureau.

ASC

- Advertising Standards Council.

CAD

- Commercials Acceptance Division

(FACTS).

CASA

- Codes and Standards Authority.

CCAC

- Commercials

Clearance

Appeals

Committee

(FACTS).

FACTS

- Federation of Australian

Commercial

Television

Stations.

FARB

- Federation of Australian

Radio

Broadcasters.

JCDC

- Joint

Committee

Disparaging

Copy.

Media Council - Media Council

of Australia.

i .

:..

OAAA

- Outdoor

Advertising

Association of Australia (Inc.).

l .

TAC

- Therapeutic

Advertising

Council.

TPAC

- Tobacco

Products

Advertising

Council.

! 1

COUNSEL AND SOLICITORS

Counsel and Solicitors for	M. Blakeney instructed by
Australian Consumers' Association	Messrs. Yandells Dennis & Co.
Counsel and Solicitors for the	R.P. Meagher Q.C. with
Media Council of Australia, the	J.D. Heydon instructed by
Federation of Australian Commercial	Messrs. Dawson Waldron
Television Stations, the
Federation of Australian Media

Broadcasters, the Australian

. /

Publishers Bureau, the Australian Media Accredition Authority, the Australian Cinema Advertising

Council and the Outdoor

Advertising Association of

Australia.

Counsel and Solicitors for	P. Comans instructed by
The Trade Practices Commission	Australian Government Solicitor.
Counsel and Solicitors for the	M.J. Slattery instructed
Advertising Standards Council	Messrs. Barwick & Co.
Solicitor for the Advertising	G.Q. Taperell of
Federation of Australia	Messrs. Baker & McKenzie.

Solicitor for Rothmans

J.W. Lees of

Pall Mall Australia Limited	Messrs. Clayton Utz.
Solicitors for Phillip Morris	J.P. Vohralik &
of Australia Limited	J.B. Pender of Messrs. Sly & Russell.
Solicitor €or the Tobacco	A.R. Anisimoff of

Institute of Australia Limited	1.lessrs. Anisimoff Davenport
& Co.

Dates

Hearing:

19, 20, 21, 22, 25, 27, 28,

29 August 1986

2, 3, 4 , 5, 9, 10, 11, 12,

16 and 17 September 1986.

Date of Decision:

31 i4arch 1987.

1.'

i	I certlfy that this and the

preceding pages are a true copy

I ,

of the Reasons for Decision of

'	',	his Honour Mr. Justice Lockhart,
l

'( President,

\\ Dr. B.I. Aldrich.

[1987] FCA 788

31 Mar 1987