Channel Seven Adelaide Pty Limited v. Australian Communications and Media Authority

This was an application by Channel Seven for judicial review of the decision of the Australian Communications and Media Authority (ACMA) that a segment on its evening news program constituted a "tobacco advertisement" in contravention of s13 of the Tobacco Advertising Prohibition Act 1992 (Cth) (the TAP Act).

On 18 July 2010 Channel Seven broadcast a segment entitled "Cheap Cigarette Imports", concerning the importation from Germany and sales by Coles supermarkets of budget brand cigarettes. The segment reported that Coles was selling the imported cigarettes cheaper than the local equivalent products. The segment included visual images of people smoking, audible and visual messages about tobacco products available at Coles, and visual images of brands.

The ACMA decided that the segment was a "tobacco advertisement" and that it gave publicity to and promoted tobacco products in contravention of the TAP Act. It did not accept Channel Seven's submission that "publicity" must mean "positive publicity". It also rejected Channel Seven's argument that the segment fell within the exceptions in the legislation for political discourse or anti-smoking advertisements. The ACMA further rejected the argument that, to the extent that the segment constituted a tobacco advertisement, it was incidental to the remaining parts of the news report. The ACMA found that the fault element of intention was present in the broadcast.

Channel Seven appealed the ACMA's decision to the Federal Court on the grounds that it involved errors of law and a constructive failure to exercise jurisdiction. The Federal Court upheld the ACMA's decision that the segment constituted an unlawful "tobacco advertisement" in contravention of s13 of the TAP Act and dismissed Channel Seven's application.

Channel Seven additionally submitted that s13 of the TAP Act was constitutionally invalid to the extent that it applies to communications that do not comprise positive publicity. It argued that, so applied, the provision would impermissibly burden the constitutionally protected freedom of communication about government or political matters. It was not necessary for the Court to determine this question to decide the case.

Note: this decision was overturned on appeal, see Channel Seven Adelaide v. Australian Communications and Media Authority [2014] FCAFC 32 (21 March 2014).

Channel Seven Adelaide Pty Limited v Australian Communications and Media Authority [2013] FCA 812 (14 August 2013)

  • Australia
  • Aug 14, 2013
  • Federal Court of Australia

Parties

Plaintiff Channel Seven Adelaide Pty Ltd

Defendant Australian Communications and Media Authority

Legislation Cited

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"The applicant contended that, in order to justify a finding of contravention of s 13 of the TAP Act, it is insufficient to merely establish that a person intended to broadcast matter that is found to be a tobacco advertisement within the meaning of s 9(1). The applicant contended that it is also necessary to establish that, in broadcasting that matter, a person intended to promote one or more of the proscribed matters. As I have recorded, the respondent reasoned that, as the applicant had intended to broadcast the material in the segment, it contravened s 13 of the TAP Act, whether or not it intended to promote tobacco or to advertise tobacco, and whether or not it was aware that the material fell within the terms of s 9(1): see [49] above. ...In my view, the applicant’s analysis is flawed. There is only one physical element: broadcasting a tobacco advertisement in Australia or Norfolk Island (otherwise than as permitted by s 14). One would not accurately or sensibly state a physical element of the offence to be, simply, “broadcasting”: see, analogously, Li v Chief of Army (2013) 210 FCR 299 at [56]-[57]; see also the analysis in R v Saengsai-Or (2004) 61 NSWLR 135 at [34]-[72]. In this connection, I accept the respondent’s submission that: If a person means to broadcast material that gives publicity to or otherwise promotes or is intended to promote smoking (for example), then the intention will be established. That will be the case whether or not the person intended to give publicity to smoking or promote smoking, and whether or not he or she was aware that the material fell within the terms of s 9. By contrast, if a person broadcasts material by mistakenly inserting the wrong cassette into the device it would not breach the prohibition: in that circumstance, the person did not mean to broadcast material meeting the description in s 9(1). It follows that the respondent did not err in its analysis of the relevant physical and fault elements of s 13 of the TAP Act."