TCN Channel Nine Pty Ltd v. Australian Broadcasting Authority
This was an application by the television networks for judicial review of a decision of the Australian Broadcasting Authority (the Authority) that each of them had breached a licence condition by broadcasting a tobacco advertisement in contravention of s7(1) of the Broadcasting Services Act 1992 (Cth). (Under s42(1) of the Broadcasting Services Act it is a condition of a broadcasting licence that the licensee will not broadcast an advertisement in contravention of the Tobacco Advertising Prohibition Act 1992 (Cth)).
In a "60 Minutes" program broadcast on 22 October 2000 the networks showed footage of Russell Crowe, in an interview, lighting and smoking a cigarette and holding a Marlboro cigarette packet. The following week, in the "Mailbag" segment of the "60 Minutes" program, the networks showed the same footage in response to two viewer complaints about the segment.
The Authority found that both segments were tobacco advertisements within the meaning of s9(1) of the Tobacco Advertising Prohibition Act. It found that the tobacco advertisement in the first program fell within the exception of being an incidental accompaniment to the broadcast of other matter, for which no direct or indirect benefit was received by the networks. However, the Authority did not consider that the "Mailbag" segment fell within the same exception, and therefore that the networks had breached a condition of their licences in airing it.
The television networks applied for judicial review of the second finding. Emmett J upheld the Authority's decision, finding that the Authority had made no error of law.