Re Gold Coast Christian and Community Broadcasting Association Limited and Public Broadcasting Association of Australia v Australian Broadcasting Tribunal; Gcfm Pty Limited; Tweed Radio and Broadcasting Company Pty Limited and Gold Coast Radio Broadcas [1990] FCA 53 (2 March 1990)

FEDERAL COURT OF AUSTRALIA

Re: GOLD COAST CHRISTIAN AND COMMUNITY BROADCASTING ASSOCIATION LIMITED and
PUBLIC BROADCASTING ASSOCIATION OF AUSTRALIA
And: AUSTRALIAN BROADCASTING TRIBUNAL; GCFM PTY LIMITED; TWEED RADIO AND
BROADCASTING COMPANY PTY LIMITED and GOLD COAST RADIO BROADCASTING COMPANY PTY
LIMITED
No. N G696 of 1989
FED No. 62
Broadcasting
92 ALR 230

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Wilcox(1) and Von Doussa(1) JJ.

CATCHWORDS

Broadcasting - Public broadcaster - Sponsorship announcements - Permissible content - Rulings by Australian Broadcasting Tribunal on permissibility of content - Whether rulings involved any error of law.

Broadcasting Act 1942, s.119AB.

HEARING

SYDNEY
2:3:1990

Counsel for the Appellants: Mr A Whitlam QC with Ms C Weigall

Solicitors for the Appellants: David Carr & Associates

Counsel for the First Respondent: Mr M K Minehan

Solicitors for the First Australian Government Solicitor Respondent:

Counsel for the Second, Mr N C Hutley with

Third and Fourth Respondents: Mr N C Hutley with
Mr G C Halsall

Solicitors for the Second,
Third and Fourth Respondents: Minter Ellison

ORDER

The appeal be dismissed.

The appellants pay to the respondents their costs of the appeal, the costs of the Australian Broadcasting Tribunal being taxed on the basis of a submitting appearance.

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

DECISION

This is an appeal from a decision of a single Judge of the Court resolving a separate question raised during the hearing of an application brought to the Court pursuant to the Administrative Decisions (Judicial Review) Act 1977. The essence of the question is the extent of advertising permissible on services operated by public radio licensees.
The facts

2. The applicants, the appellants before us, are Gold Coast Christian & Community Broadcasting Association Limited and Public Broadcasting Association of Australia. The first appellant holds a public radio licence, issued pursuant to s.81 of the Broadcasting Act 1942, in respect of a service known as Station 4CRB, which broadcasts from Burleigh Heads, Queensland. The second appellant is an association whose membership includes the holders of 72 public radio licences, spread throughout Australia. The respondents are the Australian Broadcasting Tribunal ("the Tribunal") and three commercial radio licencees, GCFM Pty Limited, Tweed Radio & Broadcasting Company Pty Limited and Gold Coast Radio Broadcasting Company Pty Limited. At the hearing before us the Tribunal adopted the position of a submitting party, no argument being put by its counsel. The argument in opposition to the case made by the appellants was put by counsel for the three commercial radio licensees.

3. The proceeding arises out of a series of decisions made by the Tribunal. On 21 June 1989 the Tribunal published two documents setting out those decisions. The longer document, containing 42 pages, was 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 were then set out the scripts of 84 sponsorship announcements, under each of which the Tribunal stated its decision. In each case, the decision was that the announcement was broadcast in breach of s.119AB of the Broadcasting Act. By way of illustration we repeat the example set out in the reasons for judgment of the learned primary Judge:

"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 PROGRAM FOR
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."

4. The second document consisted of three pages. The primary Judge noted that it was accepted before him 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". As his Honour commented, the result of this is that "any error of law expressed in the shorter document vitiated the 84 decisions in the longer document".

5. One of the contentions of the appellants, both at first instance and before us, is that the shorter document does contain errors of law. There was also a question before his Honour, as to whether there had been a failure to accord natural justice to the first appellant. At the primary hearing, it was thought convenient to deal first with the question of error of law. Accordingly, with the consent of all parties, the Judge made an order for a separate trial of that issue. The order was 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."

6. His Honour answered this question unfavourably to the applicants and it is from that answer that the present appeal is brought. As may be apparent from the terms of the order, the present question turns upon the proper construction of s.119AB of the Broadcasting Act. His Honour was taken through the legislative antecedents of s.119AB and to certain extrinsic materials concerning amendments to the Act which were made in 1987 and which resulted in s.119AB taking its present form. His Honour summarised that material and we have given it consideration. But we do not need to set it out. In the end, the question is one of construction of a section whose intendment is, in our opinion, clear. We think that it is sufficient to refer to the section itself, although we add that we agree with the comment of the trial Judge that the conclusions reached by him -- which we have come to share -- are consistent with the extrinsic material.
Analysis of s.119AB

7. Before turning to the Tribunal's reasoning, it is convenient to refer to the terms of s.119AB and to deal with the submissions put by the appellants concerning its proper construction. Relevantly, the section reads 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
annnouncement, 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) ..."

8. It will be noted that subs.(1) requires that the service provided pursuant to a public licence be "in accordance with the purpose for which the licence is granted". Although there is no evidence on the matter, it is agreed between the parties that the licence held by the first appellant was granted for "general community purposes": see s.81A of the Act. It follows that the service provided by the first appellant must answer that description. However, that comment does not assist in resolving the limits of permissible advertising. Advertising within usual limits is not inimical to the satisfaction of general community purposes.

9. However, subs.(2) deals directly with that issue. That subsection sets out a general principle that "the holder of a public radio licence shall not broadcast advertisements". The principle is subject to the other provisions of the section, notably subs.(3). But it is important to emphasise that the effect of subs.(2) is to prohibit all advertisements except those which are made permissible by the section itself.

10. The Act contains no definition of the term "advertisements". However, the parties accept the appropriateness of applying to that question the test postulated in Rothmans of Pall Mall (Australia) Ltd v Australian Broadcasting Tribunal [1985] FCA 91; (1985) 5 FCR 330 at p 339, namely:

" ... 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 the nature of
the material, considered as a whole."

This test was recently endorsed by the High Court in Director of Public Prosecutions v United Telecasters Sydney Ltd (unreported, 15 February 1990).

11. It is common ground between the parties that each of the announcements considered by the Tribunal answered this test, with the substitution of other products or services for cigarettes and smoking.

12. It follows from the above that the question before the Tribunal, in relation to each of the 84 announcements, was whether it was authorised by s.119AB(3). That subsection deals with three types of advertisement, which may be shortly described as community information (para.(a)), promotional material (para.(b)) and sponsorship announcements (para.(c)).

13. The appellants do not contend that any of the subject announcements answered the description of "community information". Presumably the announcements were paid announcements, whereas "community information" usually connotes an unpaid announcement about some matter of general community interest: cf. s.119AB(3A).

14. As we understand the final position taken by counsel for the appellants, they do not contend that the subject announcements fell within para.(b). But they do say that they constituted sponsorship announcements, within para.(c), and that those sponsorship announcements complied with the requirement of s.119AB(3B)(a); that is, that they do not promote activities, events, products, services or programs other than as referred to in subs.(3)(b). So the proper construction of subs.(3)(b) remains a matter of importance.

15. The contention of the appellants, contrary to the view expressed by the primary Judge, is that subs.(3)(b) permits the promotion of activities, events, products and services of a sponsor. The argument is that the promotion by a public radio licensee of a sponsor's activities, etc, is likely to induce members of the public to support or to use the service provided by the licensee. It is said that potential sponsors who listen to the sponsorship announcement may be influenced by its content and presentation to lodge their own sponsorship announcements with the service, thus giving to it financial support. Potential customers may be so pleased with the products and services which they discover by means of sponsorship announcements that they will support the service by listening to future programs. The appellants say that the subject sponsorship announcements fall within subpara.(i) of para.(b) because they are "material ... likely to induce the public to support ... or to make use of, the service provided by the licensee".

16. If the appellants are correct in this reading of para.(b) of s.119AB(3), the effect of the paragraph would be to overwhelm the prohibition contained in subs.(2). Upon the appellants' argument, any commercial advertisement is a "sponsorship announcement". The motivations ascribed by counsel to potential sponsors and to listeners would equally apply to any advertisement, so that even an advertisement for a nationally advertised product or service would fall within the exception.

17. However, we do not think that the paragraph can be read in the manner suggested by counsel. Material falling within para.(b) must answer the description "material which announces or promotes the service provided under the licence". Those words are intended to describe the content of the material. Material in a "sponsorship announcement" extolling the products or services of a sponsor is not material which announces or promotes the licensee's service. It is irrelevant that the broadcasting of that announcement may financially benefit the licensee or that it may encourage people to listen to the service provided under the licence.

18. Subparagraphs (i) and (ii) of subs.(3)(b) are introduced by the word "including". This word indicates that the two subparagraphs are to be read as resolving any ambiguities in what goes before. For example, appeals to the public for financial support of, or the promotion of money-raising activities for, the service are to be treated as material promoting the service. Material announcing or promoting a particular program is to be treated as material announcing or promoting the service provided under the licence. But, although the two subparagraphs provide examples of the wide interpretation to be accorded to the opening words of subs.(3)(b), they do not over-ride the test which it contains. The particular cases with which they deal are not outside the natural meaning of the opening words themselves.

19. By contrast, turning to the present case, the meaning contended for by the appellants falls outside any reasonable interpretation of the opening words of the paragraph. Whether or not an advertisement for a particular product or service stimulates the interest of other advertisers or listeners, such an advertisement cannot properly be described as "material which announces or promotes" the licensed broadcasting service.

20. It seems to us that s.119AB(3)(b) is concerned with what the licensee says about itself, its own services and programs. Section 119AB(3)(c) is concerned with paid announcements, made on behalf of sponsors. Upon our reading of subss.(3B)(a) and (3)(b), any promotion of activities, etc, in a sponsorship announcement must be limited to the activities, etc, of the licensed service itself. The paragraphs do not permit promotion of the sponsors' activities, etc. We see nothing incongruous about that interpretation. It is not uncommon for commercial organisations to associate themselves with events such as entertainments and social and cultural activities without any overt promotion of their products or services; whether through altruism or in the hope of thereby enhancing public recognition of, and regard for, the organisation.

21. However, subs.(3B) does not limit a sponsor to the publication of its name. Paragraph (b) of subs.(3B) permits the announcement to contain an acknowledgement of the extent of the sponsor's support. Paragraph (c) of that subsection permits the licensed service to state the sponsor's name and address and give "a concise description of the general nature of any business, undertaking or activity carried on by" the sponsor. In relation to this later paragraph we respectfully agree with an observation of the primary Judge:

"Paragraph (3B) (b) permits an acknowledgement
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 ...
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 ..."

The Tribunal's reasoning

22. Against the background of this analysis we turn to the comments made by the Tribunal in the shorter of the two documents to which we made earlier reference. Under the heading "Scope of promotion permitted by s.119AB(3B)(a)" the Tribunal quoted the terms of each of s.119AB(3B)(a) and s.119AB(3)(b). It then said:

"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."
(original emphasis)
"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'"

23. As will be apparent from what we have already said, we are of the opinion that the distinction drawn by the Tribunal between the promotion of the licensee's service and programs, on the one hand, and the activities, etc, of the sponsor, on the other, does emerge from subss.(3) and (3B) of s.119AB. We see no error of law in the passage from the Tribunal's decision quoted above.

24. The second section of this document is entitled "Scope of any business, undertaking or activity". After quoting, in para.5, the terms of s.119AB(3B)(c) the Tribunal said this:

"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."

25. Once again it will be apparent that we agree with this analysis. We add two comments. First, as the primary Judge pointed out in the passage from his reasons which we set out above, one function of the word "any" is to recognise that a sponsor may conduct more than one enterprise. We do not read subs.(3B)(c) as requiring that a sponsorship announcement refer to the totality of the sponsor's commercial or other activities. To extend the Tribunal's example, suppose that BHP not only makes iron and steel products and operates mines but also runs the local department store. A sponsorship announcement could refer to BHP simply as "owner of the XY department store'.

26. Our second comment emerges from the first. In many cases there will be only a fine line between a description of the general nature of a business undertaken by a sponsor and a promotion of the sponsor's activities, etc. For example, while we agree with the Tribunal that it is a promotion of the products of Wotan Mowers to refer to their "fine lawnmowers", there would be no such promotion if the sponsorship announcement identified Wotan Mowers merely as "makers of lawnmowers". This would be permissible, as a legitimate description of the general nature of the business of the company. Perhaps the golden rule, for staying on the right side of the line, is to avoid qualitative adjectives, which almost inevitably change a description into promotion.

27. We are of the opinion that the primary Judge was correct in holding that the Tribunal did not err in law. The appeal should be dismissed with costs. In view of the course taken by the Tribunal, very properly in our opinion, the costs of the Tribunal ought to be taxed on the basis of a submitting appearance.