Australia: Full Federal Court decision on broadcast of a tobacco advertisement – intention is the key

Last week, on 21 March 2014, the Full Court of the Federal Court of Australia upheld an appeal by Channel Seven Adelaide Pty Ltd (Channel Seven) against a finding by the Australian Communications and Media Authority (ACMA) that Channel Seven had broadcast a news segment in contravention of the Tobacco Advertising Prohibition Act 1992 (Cth) (TAPA) and had therefore breached a condition of its licence.

Channel Seven Adelaide Pty Ltd v Australian Communications and Media Authority [2014] FCAFC 32 is an important decision concerning broadcasting regulation and is the second decision in two weeks where the Full Federal Court has upheld an appeal brought by a broadcaster against the ACMA.

On 14 March 2014, in Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority [2014] FCAFC 22, the Full Federal Court ruled that the ACMA has no power, as an administrative body, to form an opinion (on the balance of probabilities) that a licensee has committed a criminal offence and has therefore breached a condition of its licence.

Background

Channel Seven broadcast an evening news segment entitled "Cheap Cigarette Imports" in July 2010. The segment, spanning one minute and 20 seconds, concerned the availability of cheap tobacco imports in Coles supermarkets. The segment included images of identifiable brands of cigarettes available in Australia, of people smoking cigarettes and of employees re-stocking cigarette packets on a stand at a petrol station. It also contained short interviews with cigarette smokers.

Shortly after the news segment was broadcast, the ACMA investigated a complaint that it received in respect of the broadcast. The ACMA then reached the conclusion that the broadcast of the segment constituted the broadcast of a "tobacco advertisement" in contravention of the TAPA. The ACMA accordingly found that the broadcast constituted a breach of a condition of Channel Seven's commercial broadcasting licence pursuant to clause 7(1)(a) of Part 4 of Schedule 2 of the Broadcasting Services Act 1992 (Cth) (Clause 7(1)(a) licence condition), which provides:

"... the licensee will not, in contravention of the Tobacco Advertising Prohibition Act 1992, broadcast a tobacco advertisement within the meaning of that Act;"

The phrase "tobacco advertisement" is defined in the TAPA as "... any writing, still or moving picture, sign, symbol or other visual image, or any audible message, or any combination of 2 or more of those things, that gives publicity to, or otherwise promotes or is intended to promote" a range of tobacco-related items and messages.

In October 2012, upon receiving notice of the ACMA's decision, Channel Seven sought judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of the ACMA's finding that it had breached the Clause 7(1)(a) licence condition. Channel Seven contended that the ACMA had not properly considered whether Channel Seven had the requisite intention to broadcast a tobacco advertisement. The primary judge ruled in favour of the ACMA, concluding that Channel Seven had contravened the TAPA because it intended to broadcast the material in the news report, which had the characteristic of a tobacco advertisement as defined in the TAPA (Channel Seven Adelaide Pty Ltd v Australian Communications and Media Authority [2013] FCA 812).

The Appeal

The primary submission of Channel Seven on appeal concerned the identification of physical and fault elements of the offence created by section 13 of the TAPA, which provides that a person "must not broadcast a tobacco advertisement" except as permitted under the TAPA. It was submitted that the Criminal Code (Cth) (Criminal Code), which applies to offences under the TAPA, requires that the Court and the ACMA identify each physical element of the offence and for each physical event, the relevant mental element must also be established.

Channel Seven contended that section 13 of the TAPA involved two distinct physical and mental elements, as follows:

• the 'conduct' of broadcasting an advertisement, for which the relevant mental element is intention; and
• the 'result of conduct', being that the broadcast promoted smoking, for which the relevant mental element is recklessness or, alternatively, intention.

In the majority judgment (Tracey and Robertson JJ) it was held that section 13 of the TAPA consisted of a single physical element. Accordingly, pursuant to section 5.6(1) of the Criminal Code, it was necessary for the ACMA to show that the broadcaster intended that its broadcast segment give publicity to, or otherwise promote, smoking or the purchase of tobacco products. Although the majority judgment did not accept Channel Seven's contention that there are two separate physical and mental elements, the ACMA's finding was overturned on the basis that the broadcast lacked the requisite character of a tobacco advertisement.

In a separate judgment, Flick J also found in favour of Channel Seven. His Honour accepted Channel Seven's submission that section 13 of the TAPA extended to two separate fault elements. His Honour stated that the section would be incorrectly disassociated from the definition of "tobacco advertising" in section 9 of the TAPA if the ACMA was not required to prove the consequence or result of the advertisement being broadcast.

As such, if there was no mental element required in respect of the broadcast, section 13 would be in danger of becoming a strict liability offence. His Honour could not find any legislative intention to characterise section 13 as such and, importantly, further observed that such characterisation would restrict freedom of speech or freedom of communication.

Implications – commercial broadcasters and the TAPA moving forward

The decision to set aside the ACMA's findings against Channel Seven is important. In particular, the judgment of the Full Federal Court provides guidance in defining the parameters of the TAPA for commercial broadcasters. It is now clear that for a broadcaster to breach the TAPA, it must have intended to broadcast a tobacco advertisement. The ACMA was ordered to pay Channel Seven's costs of the appeal and the hearing at first instance.

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