Saatchi & Saatchi Compton (Vic) Pty Ltd v Australian Broadcasting Tribunal
[1984] FCA 389
•23 NOVEMBER 1984
Re: SAATCHI & SAATCHI COMPTON (VIC.) PROPRIETARY LIMITED
And: AUSTRALIAN BROADCASTING TRIBUNAL and ACTORS EQUITY OF AUSTRALIA
No. G 199 of 1984
Administrative Law
56 ALR 640 / 5 FCR 431
COURT
THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.(1)
CATCHWORDS
Administrative Law - judicial review - broadcasting and television - Australian Broadcasting Tribunal's power and function to determine "standards" in connection with advertisements - meaning of "standards" - whether para.39 of Television Program Standards and Tribunal Circular Letter T.10 void for uncertainty.
Quasi-judicial Tribunals - Australian Broadcasting Tribunal - Judicial Review - "Standards" determined by the Tribunal in relation to the televising of advertisements - Challenge to the validity of "standards" curtailing production overseas - Whether such determinations were "standards" within s 100(4) of the Broadcasting and Television Act 1942 (Cth) or otherwise within the powers of the Tribunal - Administrative Decisions (Judicial Review) Act 1977 (Cth) - Broadcasting and Television Act 1942 (Cth), ss 16, 17(1), 18(1), 21(2), 83(5)(b)(ii), 99(1), 100(4), 101, 114, 129(1).
HEADNOTE
On a review under the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) of certain conduct and decisions of the Australian Broadcasting Tribunal (the Tribunal) made under the Broadcasting and Television Act 1942 (the Act), the applicant challenged the validity of par 39 of the Tribunal's "Television Programme Standards" and the Tribunal's circular letter No T10 dated 11 July 1978 as amended on 5 May 1981 as being directions which the Tribunal did not have power to make pursuant to the Act and, in particular, being directions outside the scope of s 100(4) of the Act which requires a licensee to comply with such "standards" as the Tribunal determines in relation to the televising of advertisements.
Held: (1) That "standards" as used in the context of s 100(4) of the Act means behaviour that is regarded as socially desirable or acceptable and refers to the level of quality in the content of the advertised material which is required to be socially desirable or acceptable rather than the quantity of the product. Accordingly, directions of the Tribunal, such as those contained in par 39 of its "Television Programme Standards" and circular letter No T10 dated 11 July 1978 as amended which require that, subject to certain limited exceptions (relating, inter alia, to employing Australians in overseas productions), all television advertisements be produced in Australia and not overseas, are not directions which provide "standards" in relation to the televising of advertisements. They in no way purport to deal with the quality of what may be televised and are accordingly not authorised by s 100(4) of the Act.
(2) That, although s 100(4) is framed as a direction to a licensee, it is the relevant source of power for a proclamation such as par 39. Further, neither s 16(1)(d) nor s 17 provides the necessary power for such a proclamation.
(3) That the continuing conduct of the Tribunal involving the making of determinations as to standards pursuant to s 100(4), asserting the power to enforce conformity with those standards, the commencing of an inquiry into the filming and production of certain television advertisements under s 18 of the Act and the issue of a summons to the managing director of the applicant under s 21 of the Act was all conduct of an administrative character under the Act and thus within the purview of the Judicial Review Act.
R. v. Galvin; Ex parte Metal Trade Employers' Association (1949) 77 CLR 432; Herald-Sun TV Pty Ltd v. Australian Broadcasting Tribunal (1984) 2 FCR 24; R. v. The Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45; Austrama Pty Ltd v. Australian Broadcasting Control Board (1977) 27 FLR 291, referred to.
HEARING
1984, September 24; November 23. #DATE 23:11:1984
APPLICATION
Application for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of certain conduct and decisions of the Australian Broadcasting Tribunal made under the Broadcasting and Television Act 1942 (Cth).
W. H. Nicholas QC and J. D. Heydon, for the applicant.
P. W. Young QC and J. J. Steele, for the first respondent.
D. K. Catterns, for the second respondent.
Cur adv vult
Solicitors for the applicant: Clayton Utz.
Solicitors for the first respondent: Australian Government Solicitor.
Solicitors for the second respondent: Sly and Russell.
GFV
ORDER
I direct the applicant to bring in short minutes of orders to give effect to these reasons.
I adjourn the further hearing of the proceedings until Friday, 30 November l984 at 9.l5 a.m.
Orders accordingly
JUDGE1
In this application for review made under the Administrative Decisions (Judicial Review) Act, l977, ("the Judicial Review Act") the applicant, an advertising agent, seeks judicial review of certain conduct and decisions of the Australian Broadcasting Tribunal made under the Broadcasting and Television Act, l974 ("the Act").
The history of the matter commences in l970 with the issue by the Tribunal's precursor, the Australian Broadcasting Control Board, of "Television Programme Standards" said to be determined by the Board in pursuance of the Act. (In accordance with the transitional provisions of the amending legislation, the Tribunal has continued to administer these Standards.) Part Two of the Standards is entitled "Advertising Standards". Paragraph 36 of the Standards is in these terms:
"36. Section l00 of the Broadcasting and Television Act l942-l969 provides, inter alia, that:
(l.) Subject to this Act, a licensee may ... televise advertisements.
(2.) A licensee intending to ... televise advertisements shall publish particulars of his advertising charges.
(3.) A licensee shall not, without reasonable cause, discriminate against any person applying for the use of his advertising service.
(4.) A licensee shall comply with such standards as the Board determines in relation to the ... televising of advertisements. (emphasis added)
(5.) A licensee shall not ... televise advertisements on a Sunday except in such manner and in accordance with such conditions as the Board determines.
As was pointed out in paragraph 2 of these Programme Standards, television will reach a great variety of persons in the privacy of their homes. It is therefore important that, in addition to being honest and truthful, all televised advertisements should comply with the standards set out in preceding para graphs, and should be generally acceptable for viewing in the home. Methods suitable for other media may be inappropriate for television, consequently it is necessary to examine all advertising techniques to ensure that the spirit and purpose of these Standards are fulfilled. The attainment of quality in presentation applies no less to advertising than to all other parts of the television programme."
Paragraph 37 defines the term "advertisement". By para.38, licensees are responsible for ensuring that certain requirements are observed. For instance, sub-para.(g) is as follows:
"Advertisements should be presented with courtesy and good taste. Disturbing or annoying material such as blatant sound effects, persistent repetition, and words and phrases implying urgency or emergency should be avoided."
Paragraph 39, the validity of which is challenged in these proceedings, runs:
"39. All televised advertisements must be produced in Australia. Such advertisements may include a proportion not exceeding 20 per cent of the duration of the advertisement:
(a) of pictorial matter (excluding animation) photographed outside Australia only if it portrays persons, places or events which cannot be photographed in Australia; and
(b) of sound recorded outside Australia only if it consists of the voices of personalities or the sounds associated with places or events which cannot be recorded or otherwise created in Australia;
provided that limitation to this proportion shall not apply to pictures or sounds which have been obtained by Australians who journeyed to the places concerned for the purpose of photographing or recording that matter, or to the use of recorded background music which is not directly associated with the sales message of the advertisement."
The other provisions of Part Two of the Standards deal with the acceptability of advertising matter (para.40); the advertising of medicines (para.42); and advertising time standards (para.43. et seq.).
By a circular letter No.T.l0 dated ll July l978, the Tribunal made the following statement:
"The Television Program Standards administered by the Tribunal require advertisements on Australian television, with limited exceptions, to be produced in Australia.
In response to a number of inquiries from advertising agencies and production houses, the Tribunal has prepared the following consolidated statement of its rules relating to the imported content of Australian television advertisements.
The prohibition on imported advertisements does not preclude the use of up to 20% of imported material not obtainable in Australia; the use of material shot overseas by Australian crews; the use of imported material in test market campaigns; the use of New Zealand produced advertisements the use of imported archival material in advertisements for certain goods; the use of imported footage in advertisements for cinema films and recordings and personal appearances by overseas artists; or the use of computer animation effects. ..."
The detail of the rules was then explained.
On 5 May l98l, the Tribunal, purporting to act pursuant to s.l6 of the Act (to which reference is made below), determined certain amendments to its advertising standards. Clause 4 of the circular letter T.l0 was repealed. In lieu, a new cl.4 permitted the televising of an advertisement produced in New Zealand.
In about August l983, the Tribunal began to investigate allegations of "ghost crewing" in respect of advertisements produced for an international airline. Discussions took place between officers of the Tribunal and representatives of the applicant. In about April l984, the Tribunal began an inquiry into the filming and production of certain television advertisements. The terms of reference were as follows:
"1. Whether the following television advertisements transmitted by licensees of commercial television stations during l983 were produced in conformity with Paragraph 39 of the Television Program Standards and Tribunal Circular Letter T.l0 of ll July l978 (hereafter referred to as 'the relevant Standards'):
(the advertisements are specified)
2. Whether, as a result of findings made under paragraph l,
(a) existing mechanisms for monitoring the observance of the relevant Standards should be altered or added to; or
(b) the relevant Standards should be redrafted to clarify the obligations of licensees."
On l6 April l984, an officer of the staff of the Tribunal issued a summons to Mr. Russell Walker, the managing director of the applicant, requiring the production to the Tribunal, for the purposes of the inquiry, of documents of the applicant then specified which relate to the subject matter of the inquiry. (Section 2l(2) of the Act empowers the issue of such a summons for the purposes of proceedings before the Tribunal at an inquiry held under Division 3 of Part II, to be mentioned later.)
By its amended application for an order of review, the applicant seeks to review first:
"the conduct of the Tribunal whereby (it) has engaged, is engaging and proposes to engage in conduct ('the Conduct') for the purpose of:
(a) making a decision ('the First Decision') (being a decision to which the (Judicial Review Act) applies, in that it is a decision of an administrative character proposed to be made under (the Judicial Review Act) sections l8 and 25B) as to whether certain television advertisements were produced in conformity with Paragraph 39 of the Television Program Standards and Tribunal Circular Letter No. T.l0 of llth July, l978 ('the Relevant Standards'), and
(b) making a decision ('the Second Decision') as to whether, as a result of the First Decision, existing mechanisms for monitoring the observance of the Relevant Standards should be altered or added to, or whether the Relevant Standards should be redrafted."
Secondly, the applicant seeks to review the Tribunal's decision ("the Third Decision") to stipulate and to adhere to the rules to be found in the "Relevant Standards".
The grounds of the application, as stated in the amended application, are, in essence, that the "Relevant Standards" are beyond power and void either because there is no power to determine that requirements of the kind to which the "Relevant Standards" belong should be observed, or, even if there is such power, the "Relevant Standards" are insufficiently precise and certain. Accordingly, it is claimed that the First, Second and Third Decisions are beyond power. Consequential relief is sought.
Before stating the respective arguments of the parties, reference should be made to the relevant provisions of the Act. By s.l6(l), the functions of the Tribunal are defined. They include:
"(d) to determine the standards to be observed by licensees in respect of the ... televising of programs;
(e) to determine the conditions subject to which advertisements may be ... televised by licensees;".
By s.l7(l), for the purpose of exercising its powers and functions under the Act, the Tribunal shall have power to make such orders, give such directions and do all such other things as it thinks fit. By s.l8(l), before taking action under the Act in relation to any matter, the Tribunal may if it thinks fit, and shall if the Act so provides, hold an inquiry in accordance Division 3 of Part II into that matter.
The commercial television service is dealt with in Part IV of the Act. Division 5 of that Part deals with programs. By s.99(l), a licensee shall provide programs and shall supervise the televising of programs in such manner as to ensure, as far as practicable, that the programs are in accordance with standards determined by the Tribunal. Although there is no separate definition of "program" in the definition provision, s.4(l) defines "television station" by reference to, inter alia, the transmission of "television programs, that is to say, images and associated sound intended for reception by the general public ...".
As has been said, advertisements are dealt with by s.l00. Specifically, by s.l00(4), a licensee shall comply with such standards as the Tribunal determines in relation to the televising of advertisements. By s.l0l, where the Tribunal has reason to believe that any matter (including an advertisement) which it is proposed to broadcast or televise is of an objectionable nature, that matter shall be subject to such censorship as the Tribunal determines. By s.l29(l), every licence granted under the Act shall be subject to the provisions of the Act so far as they are applicable to the licence, and those provisions shall be deemed to be incorporated in the licence as terms and conditons of the licence.
The applicant's primary argument is based upon its construction of s.l00(4). It submits that the manner of production of an advertisement, specifically, the location of that production, is not a subject matter which falls within the scope of the power conferred by s.l00(4). The argument is that such a provision is concerned only with "standards" and to attempt, as the Tribunal has done, to regulate the manner of production of advertisements by prohibiting production overseas, should not be characterised as the determination of "standards" for the purposes of s.l00(4). The contention is that no imposition of "standards", in any ordinary sense of the word, is involved in the operation of para.39. Moreover, it is said, the requirements of para.39 do not impose any "standard" in relation to the televising of advertisements as contemplated by s.l00(4): the effect of para.39 is to do no more than place an embargo upon the overseas production of advertisements.
The meaning of the word "standard" was discussed in The King v Galvin; Ex parte Metal Trade Employers' Association (l949) 77 CLR 432 at p 447 (per Latham, C.J., Dixon, McTiernan, Williams and Webb, JJ.):
"The word 'standard' is used in several senses. The meaning of the word may vary in accordance with the context in which it is used. The primary idea which the word expresses is that of a measure of quantity or quality fixed or approved by some authority, e.g., standard foot, standard pound, standard of behaviour."
According to the Oxford English Dictionary, the definitions of "standard" include the following: an authoritative or recognized examplar of correctness, or some definite degree of any quality; a rule, principle or means of judgment or estimation; a criterion or measure; a definite level of excellence, attainment or the like or a definite degree of any quality viewed as a prescribed object of endeavour or as the measure of what is adequate. The Macquarie Dictionary defines "standard" as, inter alia, a level of quality which is regarded as normal, adequate or acceptable; (usually in the plural) behaviour, beliefs etc. regarded as socially desirable or acceptable. According to Ballentine's Law Dictionary, 3rd Ed. (l969) "standard" means: "(a) determined means of comparison or evaluation, e.g. a building standard" (at p.l208).
Although, as was said in Galvin's Case, "standard" may refer either to quality or to quantity, here the plural is used and its meaning in its context is, I think, to be found in the plural definition suggested by the Macquarie Dictionary, that is, behaviour that is regarded as socially desirable or acceptable. In my opinion, the ordinary meaning of "standards" and its context suggest that it is the quality of the product, rather than its quantity, that is the subject matter of the Tribunal's power of determination under s.l00(4) (cf. Herald-Sun TV Pty. Limited v. Australian Broadcasting Tribunal, unreported, Wilcox, J. l9 July l984). That is to say, in my view, in the exercise of its power under s.l00(4), the Tribunal may regulate the content of the advertised material in terms of its quality in the sense of what is regarded as socially desirable or acceptable. Paragraph 38(g), supra, is a good illustration of such regulation. In so acting, the Tribunal's powers are unconfined except so far as limitations are to be derived from the context and scope and purpose of the statute (see The Queen v. The Australian Broadcasting Tribunal; Ex parte 2HD Pty. Limited (l980) l44 CLR 45 at p 50).
Paragraph 39 of the "Television Programme Standards" requires, in terms, that, subject to limited exceptions, all televised advertisements must be produced in Australia. Generally speaking, overseas production is permissible only if Australians are employed. In my opinion, such a direction does not provide "standards" in relation to the televising of advertisements. The provision does no more than restrict the locations at which television advertisements may be produced to sites within Australia. It does not purport to deal in any way with the quality of what may be televised. Rather, subject to the limited qualifications mentioned, para.39 purports to operate to ensure that production takes place on Australian soil and, no doubt, with Australians employed in that production. The effect of such a provision cannot, in my opinion, touch upon the quality of the finished product.
It is submitted on behalf of the Tribunal that the power to give a direction in terms of para.39 may be found in, inter alia, s.l6(l)(d). Although that provision does not, in terms, refer to advertisements, it is suggested the definition of "program" earlier mentioned, is wide enough to pick up advertisements as well. It is further suggested that s.l7 confers powers upon the Tribunal wide enough to justify a direction such as is found in para.39. Other parts of s.l6(l) are also relied on - e.g. (e) and (i).
In the present case, it is common ground that no specific condition in the terms of para.39 has been placed upon any relevant licence. It may well be open to the Tribunal to do so (see Austarama Pty. Limited v. Australian Broadcasting Control Board (l977) 27 FLR 29l). But, in my opinion, at this point of time, subject to the possibility that, subsequently, the Tribunal may impose a condition upon licences in terms of para.39, the relevant source of power, if any, for the proclamation of para.39 is to be found in s.l00(4) and not elsewhere. It is true that, in form, s.l00(4) is framed as a direction to a licensee. But it is implicit, if not explicit in its provisions that the Tribunal is empowered to formulate standards for the televising of advertisements. Since the relevant source of the Tribunal's powers for present purposes is s.l00(4), those powers can only be exercised so as to restrict the television of advertisements in pursuance of the Tribunal's determination of "standards" for that purpose.
It is also submitted on behalf of the Tribunal that even if it is confined to s.l00(4), then para.39 should be perceived as laying down "standards" in the sense used in s.l00(4). It is suggested that a "standard" is not necessarily something that is fixed or certain. This was the question for determination in the Herald-Sun TV Case, supra, but, in my view, it does not arise here. Nor does it assist the Tribunal to say that, in some contexts, a standard may indicate no more than the fixing of a minimum goal. It is one thing to prescribe a minimum quality for a product. It is a different thing to restrict the location of its production.
It follows, in my view, that para.39 and, consequently, the determinations in the circular letter are beyond the powers conferred by s.l00(4). In my opinion, no other provision in the Act can provide an alternative source of power for this purpose. (I should add that other provisions of the Act such as s.83(5)(b)(ii) and s.ll4, dealing, in other contexts, with Australian content, cannot, in my view, assist either party in their respective constructions of s.l00(4).)
In these circumstances, it is unnecessary to deal with the applicant's alternative uncertainty argument.
Finally, it is contended on behalf of the Tribunal that, even if para.39 and the determinations in the circular letter were beyond power and thus void, the Court nonethe less does not possess jurisdiction under the Judicial Review Act to grant the relief sought. It is suggested, inter alia, that these proceedings are, in substance, an attack upon the "standards" determined as long ago as l970 and that the applicant is accordingly out of time under the Judicial Review Act. It is also argued on behalf of the Tribunal that the proceedings constitute an impermissible attempt directly to challenge what is, in truth, legislation, even if in delegated form, whereas the scope of relief available under the Judicial Review Act is confined to conduct of an administrative character under an enactment.
In my opinion, both submissions should be rejected. The conduct of the Tribunal is continuing conduct in the sense that it now asserts the power to enforce its purported determination of standards pursuant to s.l00(4). Further, an inquiry under s.l8 is current. The summons to Mr. Walker in this connection is outstanding. In my view, all this is conduct of an administrative character under the Act. It is thus within the purview of the Judicial Review Act.
I propose to grant the applicant relief of the kind it now seeks and to order that the Tribunal pay the applicant's costs. The second respondent supports the Tribunal but, as an intervener, it should neither receive nor be liable for costs. I propose to make no order for its costs. I will hear argument, if necessary, as to the precise form of relief to be granted.
The orders I now make are as follows:
I direct the applicant to bring in short minutes of orders to give effect to these reasons.
I adjourn the further hearing of the proceedings until Friday, 30 November 1984 at 9.15 a.m.
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