Gold Coast Christian & Community Broadcasting Association Ltd v Australian Broadcasting Tribunal

Re: GOLD COAST CHRISTIAN & COMMUNITY BROADCASTING ASSOCIATION
LIMITED and PUBLIC BROADCASTING ASSOCIATION OF AUSTRALIA
And: AUSTRALIAN BROADCASTING TRIBUNAL, GCFM PTY. LIMITED,
TWEED RADIO & BROADVASTING COMPANY PTY. LIMITED and
GOLD COAST RADIO BROADCASTING COMPANY PTY. LIMITED
No. G500 of 1989
FED No. 590
Broadcasting - Words and Phrases
89 ALR 612

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Gummow J.(1)

CATCHWORDS

Broadcasting - public radio licence - whether certain radio announcements were "advertisements" within the meaning of s. 119AB (2) of the Broadcasting Act 1942 - whether the announcements were "sponsorship announcements" within the meaning of s. 119AB (3B) of the Act.

Words and Phrases - "sponsor" - "any business, undertaking or activity".

Broadcasting Act 1942

Broadcasting Stations Licence Fees Act 1964

Administrative Decisions (Judicial Review) Act 1977

Broadcasting and Television Amendment Act 1980

Broadcasting Stations Licence Fees Amendment Act 1985

Broadcasting and Television Amendment Act 1985

Broadcasting Amendment Act (No. 3) 1987

Rothmans of Pall Mall (Australia) Ltd. v The Australian

Broadcasting Tribunal (1985) 5 FCR 330

Canberra and District Racing and Sporting Broadcasters Ltd. v Canberra Stereo Public Radio Inc. (1985) 63 ALR 502

Dallow Industrial Properties Ltd. v Else (1967) 2 QB 449

HEARING

SYDNEY

#DATE 28:9:1989

Counsel and Solicitors for Miss C.F. Weigall instructed
the Applicants: by Messrs Phillips Fox.

Counsel and Solicitors for J.S. Hilton Esq. and M. Minehan Esq.
the First Respondent: instructed by the Australian

Government Solicitor.

Counsel and Solicitors for N.C. Hutley Esq. instructed by
Second, Third and Fourth Messrs Minter Ellison.
Respondents:

ORDER

No error of law as alleged by the applicants is involved in the construction of the Broadcasting Act 1942 in the decisions of the first respondent published 21 June 1989 which found certain announcements broadcast by the first applicant during the period 10 October 1988 to 16 October 1988 were in breach of s.119AB of Broadcasting Act 1942.

Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

JUDGE1

Introduction

The applicant is the holder of a public radio licence within the meaning of the Broadcasting Act 1942 ("the Act"). It broadcasts from Burleigh Heads in the State of Queensland under the call sign 4CRB. The second applicant is an association whose membership includes the holders of 72 public radio station licences throughout Australia. The members of the second applicant have an interest co-incident with that of the first applicant in the correction of what they say has been an erroneous interpretation of a provision of s. 119AB of the Act by the first respondent ("the Tribunal").

The second, third and fourth respondents are the holders of commercial radio licences, each with a service area (within the meaning of the Act) which overlaps with the service area of the first applicant. They support the interpretation of the Act by the Tribunal; their interest in the matter is that adoption of the interpretation of s. 119AB contended for by the applicants would be likely to have a direct and adverse effect upon their advertising revenues.
By Application filed 14 July 1989, the applicants seek relief under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). They seek review of decisions of the Tribunal published on 21 June 1989 which found that certain announcements broadcast by the first applicant in the period 10 October - 16 October 1988 were in breach of s. 119AB.
The Legislation - Public Licences
Both the applicant and the second, third and fourth respondents are "licensees" within the meaning of the Act. Sub-section 99 (1) of the Act provides:

"99. (1) A licensee -

(a) shall provide programs (other than programs to which paragraph

(b) applies); and

(b) may provide programs being advertisements."

The term "program" is defined in sub-s. 4 (1) of the Act as including, unless the contrary intention appears, "advertisement and any other matter". Sub-section 99 (1) has to be read with s. 119AB. This is the central provision with which the present litigation is concerned. It provides as follows:

"119AB (1) It is a condition of a public licence that the service provided pursuant to the licence is in accordance with the purpose for which the licence is granted.

(2) Subject to this section, the holder of a public radio licence shall not broadcast advertisements.

(3) Nothing in subsection (2) shall be taken to prevent the holder of a public radio licence from broadcasting, in accordance with any applicable program standards:

(a) community information (whether by way of announcement, interview or otherwise);

(b) material which announces or promotes the service provided under the licence, including, without limiting the generality of this:-

(i) material (whether by way of the announcement or promotion of activities, events, products or services or otherwise) likely to induce the public to support, whether financially or otherwise, or to make use of, the service provided under the licence; and

(ii) material which announces or promotes a particular program or programs provided under the licence; or

(c) a sponsorship announcement.

(3A) For the purpose of determining whether information is community information for the purposes of paragraph (3) (a), regard shall be had to whether the holder of the licence received, or is to receive, payment or other consideration for broadcasting the information.

(3B) For the purposes of paragraph (3)

(c), a sponsorship announcement:

(a) shall not promote activities, events, products, services or programs other than activities, events, products, services or programs referred to in paragraph (3) (b);

(b) may acknowledge the support, whether financial or otherwise, of a person or persons:

(i) in respect of a particular program or programs provided under the licence; or

(ii) generally in respect of the service provided under the licence; and

(c) may specify the name and address of, and a concise description of the general nature of any business, undertaking or activity carried on by, that person or those persons.

(4) It is a condition of a public licence that any money derived by the licensee from the operation of the service provided pursuant to the licence shall not be expended otherwise than:

(a) for or in connection with the provision, maintenance or improvement of that service; or

(b) for the benefit of public broadcasting generally."

It appeared to be common ground before me that guidance as to the meaning of the term "advertisements" in sub-s. 119AB (2) was to be derived from what was said in the Full Court, when dealing with other provisions of the Act, in Rothmans of Pall Mall (Australia) Ltd. v The Australian Broadcasting Tribunal (1985) 5 FCR 330 at 339. The Full Court described the question be determined as:

". . . whether the material, on its face and without reference to the actual intentions of those concerned with its production or transmission, appears to be designed or calculated to draw public attention to, or to promote the sale or use of, cigarettes or to promote the practice of smoking. It does not matter that some part or parts of the total material do not, in itself or in themselves answer the description of an advertisement for cigarettes or for smoking. The question is to be determined by reference to thenature of the material, considered as a whole . . ."

The expression "the purpose for which the licence is granted" in sub-s. 119AB (1) is a reference to s. 81A. This provides that a public licence shall be granted for what is described as "general community purposes" or "a special interest purpose". Section 83 of the Act requires of an applicant for the grant of a licence that it shall give a written undertaking to the Tribunal that if granted the licence it will comply with the conditions of the licence and provide "an adequate and comprehensive service pursuant to the licence".
Sub-section 119AB (3) refers to broadcasting "in accordance with any applicable program standards". The reference to "program standards" is to a standard or condition determined by the Tribunal in the performance of its function under para. 16 (1) (d) of the Act. There has been no determination by the Tribunal of applicable program standards for the particular purpose of s. 119AB. However, in pursuance of its authority under s. 16 (1) (d), the Tribunal has determined various program standards (dealing with such matters as incitement of violence or brutality, and presentation of misuse of alcoholic liquor as desirable) which apply generally, and thus would extend, though not specifically, to the announcements by holders of public radio licences which comply with s. 119AB.
Sub-section 81AA (3) provides:

"81AA (3) A public licence shall not be granted to:

(a) a corporation whose objects include the acquisition of profit or gain for the benefit of its individual members;

(b) a government corporation; or

(c) a political party."

The "objects" of a corporation are not confined to those set out in any memorandum of association of the corporation: Canberra and District Racing and Sporting Broadcasters Ltd. v Canberra Sterio Public Radio Inc. (1985) 63 ALR 502.

Public licences are not licences which attract the operation of the Broadcasting Stations Licence Fees Act 1964; see the limited definition of "licence" for the purposes of that legislation inserted by s. 6 of the Broadcasting Stations Licence Fees Amendment Act 1985.
Section 129 of the Act provides that every licence granted under the Act shall be subject to the provisions of the Act and those provisions shall be deemed to be incorporated in the licence as terms and conditions of the licence. Further, s. 132 of Act relevantly renders contravention of a provision of the Act an offence under the Act. Hence, the importance for public licensees of compliance with the requirements of s. 119AB.
The Tribunal's Decision
As I have indicated, the proceedings are brought seeking review of decisions of the Tribunal published 21 June 1989. The Tribunal issued a 42 page document headed:
"Tribunal Decisions - Sponsorship
Announcements Broadcast by Public Radio
Station 4CRB Burleigh Heads During First
Reporting Week - Monday 10 October to
Sunday 16 October 1988."
There are then set out the scripts of 84 sponsorship announcements and there appears under the text of each announcement the decision of the Tribunal concerning it. In each instance, the decision was that the announcement was broadcast in breach of s. 119AB of the Act. By way only of example, I set out the passage in the document dealing with the ninth announcement:

"SOUTHPORT RETIREMENT VILLAGE SOUTHPORT RETIREMENT VILLAGE SPONSORS THIS PROGRAM.

SOUTHPORT RETIREMENT VILLAGE - BED SITTER APARTMENTS READY FOR OCCUPANCY. SOUTHPORT RETIREMENT VILLAGE PROVIDES FULL-TIME MANAGEMENT AND ALL AMENITIES ARE AVAILABLE FOR RETIREMENT LIVING INSPECTION IS INVITED DAILY FROM 10 AM TO 4 PM 7 DAYS A WEEK

PHONE 328 495 . . . 328 495 SOUTHPORT RETIREMENT VILLAGE, EILEEN AVENUE, SOUTHPORT IS SPONSORING THIS PROGRAMFOR 4CRB'S DISCERNING LISTENERS Decision

Breaches ss. 119AB (3B) in that the words 'bed-sitter apartments ready for occupancy', '. . . are available for retirement living. Inspection is invited daily from 10:00 am to 4:00 pm, seven days a week' are promotional and are not 'a concise description of the general nature' of the business of the sponsor. The repetition of the sponsor's telephone number is also promotional. The Tribunal also finds that the unnecessary reiteration of the sponsor's name throughout the announcement serves as a promotional device, contrary to the requirements of s.119AB (3B)(a). However, as this level of reiteration was passed without comment in the recent 2CHY decision, the Tribunal is of the view that there were extenuating circumstances in regard to this aspect of the breach."

The 42 page document was accompanied by a 3 page document comprising 8 paragraphs, and headed with the words "GENERAL COMMENTS". The document falls into two parts. Paragraphs 1 - 4 deal with "Scope of Promotion permitted by s. 119AB (3B) (a)" and paras. 5 - 8 with "Scope of 'any business, undertaking or activity'".

It is apparent, and it was not in dispute before me, that in reaching its decisions upon the 84 specific matters dealt with in the longer document, the Tribunal was applying the views expressed in the shorter document as to the correct construction of s. 119AB. The result was that any error of law expressed in the shorter document vitiated the 84 decisions in the longer document.
The Present Proceedings
The applicants allege that the decisions in question are subject to review, not only for error of law but for other grounds, specified in s. 5 of the ADJR Act, in particular breaches of the rules of natural justice. Upon the commencement of the hearing before me, it became apparent that it was the complaint as to error of law which raised issues of particular and general public importance, affecting not only the first applicant but also the members of the second applicant association. It also became apparent that to pursue the other alleged grounds for review could involve consideration of a not inconsiderable body of evidence. On the other hand, if the first applicant succeeded upon its complaint based on alleged error of law, that would effectively dispose of the proceedings, not only as regards its interest, but the interests of the members of the second applicant.
Accordingly, with the consent of all parties, I made an order pursuant to Order 29 of the Rules of Court for the separate decision of the question relating to alleged error of law in the interpretation of s. 119AB of the Act. That order is in the following terms:

"Order pursuant to Order 29 of the Rules of Court that there be decided separately from any other question in the proceedings the question raised by paragraph 2 of the Grounds of the Application in the Application filed 14 July 1989, namely whether there is involved any error of law in the construction of the Broadcasting Act 1942 ('the Act') in the decisions of the first respondent published on 21 June 1989, which found that certain announcements broadcast by the first applicant during the period 10 October 1988 to 16 October 1988 were in breach of s.119AB of the Act."

What follows are my reasons for judgment upon that question.
Upon this question counsel for the Tribunal did not play an active part, the Tribunal's reasoning as to the construction of s. 119AB of the Act being supported by counsel for the remaining respondents.
The Legislative History
I turn now to consider the somewhat complicated legislative history of s. 119AB.
Section 119AB applies to what the parties described as "new system licences". The distinction between new system licences and old system licences was introduced by s. 96 of the Broadcasting and Television Amendment Act 1985, to distinguish between licences granted under the Act before and after the amendments effected by the 1985 legislation, with effect from 1 January 1986. Section 119AB was introduced in its original form by s. 84 of the Broadcasting and Television Amendment Act 1985. The section then read:

"119AB (1) It is a condition of a public licence that the service provided pursuant to the licence is in accordance with the special purpose specified in the licence.

(2) Subject to this section, the holder of a public radio licence shall not broadcast advertisements.

(3) Subject to sub-section (4), the holder of a public radio licence may, in respect of the broadcasting of a program sponsored by another person, broadcast announcements specifying only -

(a) the name and address of the sponsor; and

(b) a description, made in accordance with directions given by the Tribunal, of the business, undertaking or activity (if any) carried on by the sponsor.

(4) The holder of a public radio licence shall comply with such directions as are given by the Tribunal in relation to the broadcasting of sponsorship announcements."

Section 119AB assumed its present form (which I have already set out) after the amendments effected by s. 33 of the Broadcasting Amendment Act (No. 3) 1987.

Comparable provisions still operate with respect to what are described as "old system licences". Section 27 of the Broadcasting and Television Amendment Act 1980 introduced s. 111BA. It was as follows:

"111BA (1) In this section, 'licensee' means the holder of a public broadcasting licence.

(2) Subject to this section, a licensee shall not broadcast advertisements.

(3) Subject to this section, a licensee may, in respect of the broadcasting of a program sponsored by another person, broadcast announcements specifying only -

(a) the name and address of the sponsor; and

(b) a description made in accordance with directions given by the Tribunal, of the business, undertaking or activity (if any) carried on by the sponsor.

(4) A licensee shall comply with such directions as are given by the Tribunal in relation to the broadcasting of sponsorship announcements."

In 1981, having regard to the provisions of s. 111BA as it then stood, the Tribunal gave a number of directions relating to sponsorship announcements and applicable to all public radio licensees. These were:

"1. These directions shall apply to all sponsorship announcements broadcast by the station after 30 April 1981.

2. No sponsorship announcement broadcast shall attempt to persuade or induce the listener to purchase particular goods or services.

3. No more than eight sponsorship announcements shall be broadcast in any period of an hour and no one sponsor shall be mentioned more than four times in an hour.

4. No sponsorship announcement broadcast shall be in excess of 40 words.

5. The telephone number(s) of a sponsor may be included in the sponsorship announcement broadcast for that sponsor.

6. The nature of the business of a sponsor may only be described concisely and in general terms in any sponsorship announcement broadcast for that sponsor."

The provisions of the Act as in force immediately before 1 January 1986 have been continued in their application to old system licences. Furthermore, the Act in its special operation for this limited purpose itself has been further amended. Sub-section 36 (2) of the Broadcasting Amendment Act (No. 3) 1987 provides that for the purposes of the continued application, by virtue of s. 98 of the Broadcasting and Television Amendment Act 1985, of the Act as in force immediately before 1 January 1986, the Act is amended as set out in Schedule 2. The effect of Schedule 2 is to amend the old s. 111BA so as to bring it into line with the current provision dealing with new system licences, that is to say s. 119AB.

The result, as the parties before me were agreed, is that there is no relevant difference at present between s. 111BA in its continued existence in respect of old system licences, and s.119AB dealing with new system licences.
Extrinsic Materials Concerning the 1987 Amendments to s. 119AB
In the Explanatory Memorandum for the Bill for the Broadcasting Amendment Act (No. 3) 1987, it is stated that the provisions:

"amend the provisions governing the ways in which public broadcasters may raise and spend funds -

- clarifying their ability to make sponsorship, community information and self-promotional announcements; and - preventing the expenditure of a station's own funds other than on the service itself or for the benefit of public broadcasting generally;"

In the second reading speech on the Bill in the Senate, the Minister said:

"The Bill changes the provisions which govern the ways in which public broadcasters may raise and spend funds. Public broadcasters currently are prevented from broadcasting advertisements other than sponsorship announcements. In November 1985, the Tribunal released a draft policy statement, which set out its preliminary interpretation of what the Act allowed in sponsorship announcements. The draft was criticised by public broadcasters for its broad interpretation of the meaning of 'advertisements' which, reflecting the Federal Court's decision in the

(Rothmans) case, substantially expanded the category of announcements which they are prevented from broadcasting under s 119AB of the Broadcasting Act. The draft was also criticised for limiting the forms of sponsorship announcements which public broadcasters could broadcast. Public broadcasters were particularly concerned about prohibitions or limitations on their ability to provide community information and to promote themselves and their programs. They claimed its adoption would narrow current practices to the extent that some would not be able to raise sufficient funds to continue operating.

These amendments retain the advertising prohibition while clarifying the scope of the exceptions to it. The exceptions will continue to include sponsorship announcements, but the definition of these is slightly altered to make clear that the announcement may acknowledge financial or other support for the service generally or for a particular program, and to impose a general non-promotional provision. The exceptions to the advertising prohibitions will also include community information announcements and material which promotes the service itself or particular programs. The receipt of payment for broadcasting information will be a relevant but not conclusive factor in determining whether information is not community information. These new exceptions are intended to retain the non-commercial character of public broadcasting services, while permitting legitimate revenue-raising and self-promotional activities consistent with that character.

A separate provision will prevent the expenditure of a station's own funds other than on the service itself or for the benefit of public broadcasting generally. This will not prevent the conducting of appeals for particular causes where the funds raised are not derived by the licensee himself. However, the conduct of such appeals will be a relevant factor for the Tribunal at licence renewals, in assessing whether a station has been conducted wholly or substantially for the purpose of conferring profits on a third party, so as to justify non-renewal." (Emphasis supplied.)

The Tribunal's Construction of s. 119AB

In order to appreciate what is said to be the erroneous construction by the Tribunal, it is necessary first to set out the crucial paragraphs of the document headed "GENERAL COMMENTS", namely paras. 3, 4, 5, 6, 7 and 8. These are in the following terms:

"Scope of promotion permitted by s.119AB(3B)(a) . . .

3. The effect of s.119AB(3B)(a) is to exempt material which promotes the service from the prohibition on the promotion of activities, events, products or services in sponsorship announcements. This involves a common-sense distinction. On the one hand, sponsorship announcements allow only the most limited kind of advertising for the sponsor. The Act permits a concise description of the general nature of a sponsor's business but does not allow the promotion of specific activities, events products or services offered by the sponsor. On the other hand, licensees are entitled to publicise activities, events, etc. which support the service, and may do so using promotional language. Consistent with this distinction, sponsorship announcements may promote the licensee's service, including promotion of activities, events, products or services in support of the station, but may not promote other products or services.

4. For example, the following fictitious announcement promotes the service and is therefore permitted: 'Wotan Mowers is proud to sponsor fine music station 4ZZZ, your kind of music' The following promotes the products of the sponsor and is therefore prohibited: '4ZZZ is sponsored by Wotan Mowers, makers of fine lawnmowers' Scope of 'any business, undertaking or activity'

5. S.119AB(3B)(c) provides that sponsorship announcements:

'May specify the name and address of, and a concise description of the general nature of any business, undertaking or activity carried on by, that person or those persons.'

6. The Tribunal does not accept that the words 'any business, undertaking or activity' are intended to be read cumulatively to mean that a sponsor can describe its business and any undertakings or activities carried on pursuant to its business. Such a reading is hardly consistent with the idea of a 'concise description of the general nature' of a business. On the Tribunal's interpretation, the phrase is governed by the word 'or' to mean that where a sponsor engages in conduct which has the characteristics of a business or an undertaking, or an activity which is akin to a business or undertaking (eg. a profession, public office or candidacy), that person is entitled to include in sponsorship announcements 'a concise description of the general nature' of that conduct. The word 'or' indicates that the words are expressed in the alternative and are not cumulative.

7. The use of the word 'any' merely acknowledges that sponsors may not have a business, undertaking or activity, or they may in unusual circumstances have more than one. For example, a large and diversified company like BHP will have more than one business. When a sponsor has more than one business, a concise description of its general nature may take this into account - as nowhere in the Act is a person restricted to describing their 'predominant' business or activity. For example, BHP could be described as 'a manufacturer of iron and steel products and a mine operator', and perhaps more, although very few businesses are so multifaceted. However the Tribunal does not accept that a concise description of the general nature of a shopping arcade can include specifics such as 'home of Wotan Mowers' - that is not the general nature of the business. There is a distinction between a diversified business (eg. miner and steel miller) and an undiversified business which is engaging in several ventures (eg. shopping arcade, home of Brand X Supermarket and Wotan Mowers). Only the first is a description in general terms, the second is a particularisation of the services offered by a single business.

8. As a general comment, a number of the announcements considered by the Tribunal fail because they contain, not a 'concise description in general terms' but a sample of specific products, services or activities offered by a sponsor's business, which the sponsor wishes to publicise."

Conclusions

Sub-section 119AB (2) imposes a prohibition upon the broadcast of advertisements. This prohibition is consistent with the non-commercial character of public broadcasting services, indicated by the exclusion by sub-s. 81AA (3) from the class of potential licensees of public licences of corporations whose objects include the acquisition of profit or gain for the benefit of individual members, and by the non-applicability of the licence fees legislation. But that prohibition has been qualified by sub-s. 119AB (3), which is couched as a statement that the prohibition in sub-s. (2) shall not be taken as preventing the broadcasting, in accordance with any applicable program standards, of (i) certain community information, (ii) certain promotional material and (iii) sponsorship announcements. The first and third of these three integers in the qualification to the central prohibition upon broadcasting of advertisements then is further explained in sub-ss. (3A) and (3B) respectively.
Plainly, money may be derived by the licensee from, inter alia, the broadcasting of that which is excluded by sub-s. (3) from the prohibition in sub-s. (2) and such receipt would thus be permitted, if otherwise in accordance with the Act. But sub-s. (4) makes it a condition of a public licence that any money derived by the licensee from the operation of its service shall not be expended otherwise than for or in connection with the provision, maintenance or improvement of that service, or for the benefit of public broadcasting generally.
The third of the integers to which I have referred comprises sponsorship announcements. One of the definitions given in the The Macquarie Dictionary of "sponsor" is "a person, firm or other organisation that finances a radio or television program in return for advertisement of a commercial product, a service, etc.". If s. 119AB did no more than in terms state that the general prohibition of the broadcasting of advertisements did not prevent the broadcasting, in accordance with any applicable program standards, of sponsorship announcements, there would have been opened up an exception to the prohibition perhaps so large as virtually to overwhelm the prohibition itself. Hence, the importance of sub-s. (3B).
Sub-section (3B) states certain characteristics of a sponsorship announcement for the purposes of its exception by sub-s. (3) (c) from the general prohibition in sub-s. (2). Such an announcement "shall not" have certain characteristics and "may" have others. I accept the submission for the second, third and fourth respondents ("the respondents") that sub-s. (3B) sets out that which may comprise a sponsorship annoucement for the purposes of sub-s. (3) (c). In a given case, an announcement may acknowledge the financial support of a person in respect of a particular program provided under the licence and may specify the name and address of any business carried on by that person. But the announcement in this example may not have any of the further characteristics in paras. (b) and (c), though it might permissibly have had such characteristics. What cannot be done is that forbidden by para. (a), the promotion of activities, events, products, services or programs other than as there identified.
The result, in my view (which accords with that of the Tribunal) is that sponsorship announcements may allow only for the most limited kind of advertising by the sponsor. This qualifies what otherwise (given the ordinary usage of "sponsorship") would be a wide exception to the advertising prohibition.
Paragraph (3B) (c) is concerned with rendering specific the subject matter there referred to, attributes or characteristics pertaining to persons whose support may be acknowledged in the sense of para. (3B) (b). What is not allowed is promotion of activities, events, products, services or programs other than promotion thereof which is likely to induce the public to support, whether financially or otherwise, or to make use of, the service provided under the licence. This follows from a reference in para. (3B) (a) to para. (3) (b). The phrase "activities, events, products, services or programs" is referred to in para. (3) (b) as material likely to induce the public to act in relation to the service provided under the licence, and that service must be in accordance with the purpose for which the licence is granted: sub-s. (1).
Accordingly, in my view, the example given in para. 4 of the Tribunal's "GENERAL COMMENTS" proceeds from a proper construction of the Act.
What of para. (3B) (c)? Both the applicants and the respondents accepted that a concise description, whilst brief, may be comprehensive. But they then parted company. The applicants submitted that one may specify a concise description of the general nature of any business, undertaking or activity carried on by the person in question, by describing separately the component parts or elements thereof and that there were no express or implied limitations as to how this might be achieved.
Plainly enough, there is involved some process of abstraction from the specific acts performed by the sponsor which might be said together to constitute a business, undertaking or activity carried on by the sponsor. Terms such as "trader" or "merchant" may involve abstraction at such a level as not to provide a concise description of the general nature of the business, undertaking or activity. On the other hand, to list comprehensively the activities of a business undertaking would not be to give a concise description of its general nature. I agree with the Tribunal (in para. 7 of its "GENERAL COMMENTS") that one may properly distinguish here between the particularisation of the services offered by a business and the concise description of the general nature of a business, comprising diversified activities. Still less does para. (3B) (c) embrace the description by way of example of particular products, services or activities offered by a sponsor, being products, servicies or activities the sponsor wishes to publicise by medium of a "purported sponsorship announcement". To read para. (3B) (c) as encompassing such announcements would be to clash with the imperative terms of para. (3B) (a).
Paragraph (3B) (b) permits an acknowledgment of the support, whether financial or otherwise, of the persons there mentioned. They may, in a given case, carry on no business undertaking or activity; for them, para. (3B) (c) has no work to do. Thus, I read "any" in para. (3B) (c) as recognising that some sponsors may have nothing to be specified in the sense of that paragraph. The word "any" also recognises, at the other end of the scale, that a sponsor may conduct more than one enterprise, as the Tribunal stated in para. 7 of its "GENERAL COMMENTS".
I also accept that the phrase "any business, undertaking or activity" is to be read as one and as bringing in by the use of the word "activity" something which is akin to a business or undertaking but which without more might not be so regarded; cf. Dallow Industrial Properties Ltd. v Else (1967) 2 QB 449 at 458. In para. 6 of the "GENERAL COMMENTS", the Tribunal gave as examples a profession, public office or candidacy.
The applicants urged that the words "any . . . activity" should be given full effect as if unconfined by the intermediate words. The respondents submitted, in my view correctly, that to dissect the phrase "any business undertaking or activity" in this way would be (i) to overwhelm the words "business" and "undertaking" because any business or undertaking is the sum in a general sense of acts in time and space and (ii) to effect a substantial change to the previously non-commercial character of public broadcasting services, rather than a clarification of the prior scope of the exceptions to the advertising prohibition, as they stood before the 1987 legislation. Therefore, the respondents submitted the words "any business undertaking or activity" were to be read as a whole and (as the Tribunal pointed out in para. 6 of its "GENERAL COMMENTS") not cumulatively and not after a dissection so that in a sponsorship announcement a sponsor might describe concisely the general nature of any activities carried on in the conduct of its business. I accept those submissions.
I should also add that whilst I have reached my conclusions upon a consideration of the legislation itself, those conclusions are consistent with the extrinsic material to which I have referred.
It follows that the question to be decided separately should be answered adversely to the applicants by declaring (pursuant to para. 16 (1) (c) of the ADJR Act) that no error of law as alleged by the applicants is involved in the construction of the Act in the decisions of the Tribunal published 21 June 1989 which found certain announcements broadcast by the first applicant during the period 10 October 1988 to 16 October 1988 were in breach of s. 119AB of the Act.
I will hear the parties as to the costs of the proceedings to to date and as to what should be done with the balance of the proceedings.

[1989] FCA 590

28 SEPTEMBER 1989