whe CATCHWORODS ADMINISTRATIVE LAW - judicial review - decisions of Australian Broadcasting Tribunal - whether broadcasts contravene 3.117 of Broadcasting Act 1942 - construction of ss.117 and 117A of the Act - meaning of "an address or statement" relating to a political subject or current affairs - whether programs constitute "advertisements" within relevant advertising standards - whether advertising standards ultra vires Tribunal - definition of "advertisement". Administrative Decisions (Judicial Review) Act 1977 Broadcasting Act 1942 ss.16, 100(4), 117 and 117A. é / QUEENSLAND TELEVISION LIMITED V. AUSTRALIAN BROADCASTING TRIBUNAL NEVILLE JOHN HARPER V. AUSTRALIAN BROADCASTING TRIBUNAL UNIVERSAL TELECASTERS OLD. LTD. V. AUSTRALIAN BROADCASTING TRIBUNAL QLD. G118 of 1986: QLD. G120 of 1986: QLD. G121 of 1986. oN ee SPENDER J. BRISBANE 6 AUGUST, 1987. IN THE FEDERAL COURT OF AUSTRALIA ) ) QLD. G118 of 1986 QUEENSLAND DISTRICT REGISTRY ) QLD. G120 of 1986 ) ) QLD. G121 of 1986 GENERAL DIVISION BETWEEN : QUEENSLAND TELEVISION LIMITED Applicant AND: AUSTRALIAN BROADCASTING TRIBUNAL Respondent BETWEEN : NEVILLE JOHN HARPER Applicant AND: AUSTRALIAN BROADCASTING TRIBUNAL Respondent BETWEEN : UNIVERSAL TELECASTERS OLD. LTD. Applicant AND: AUSTRALIAN BROADCASTING TRIBUNAL Respondent MINUTE OF ORDER JUDGE MAKING ORDER: SPENDER J. DATE OF ORDER: 6 AUGUST 1987. WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The decision of the respondent dated 25 duly 1986 that the episode of the programme "Queensland Unlimited" which was televised by the applicant on 27 October 1985 (being the episode entitled "City Train Links Extending") was in breach of 3.117 of the Broadcasting Act 1942 be set aside. Settlement and Entry of Orders is dealt with in Order The decision of the respondent dated 25 July 1986 that the episode of the programme "Queensland Unlimited" which was televised by the applicant on 9 March 1986 (being the episode entitled "Cabinet Helps with Crisis") was in breach of g.117 of the Broadcasting Act 1942 be set aside. The decision of the respondent dated 25 July 1986 that the episode of the programme "Queensland Unlimited" which was televised by the applicant on 24 November 1985 (being the episode entitled "Our Casino World Class") was an "advertisement" within the meaning of Television Programme Standard (TPS) 37 be set aside. The decision of the respondent dated 25 July 1986 that the episode of the programme "Queensland Unlimited" which was televised by the applicant on 6 June 1986 (being the episode entitled "Trade and Prosper") was an "advertisement" within the meaning of Television Advertising Condition (TAC) 1 be set aside. It is declared that the making of Television Programme Standard (TPS) 37 was beyond the powers of the respondent, and that the said Television Programme Standard (TPS) 37 is void. The respondent shall pay two-thirds of the applicant's costs of and incidental to these proceedings, including reserved costs, to be taxed. The applications otherwise be dismissed. 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QLD. G118 of 1986 QLD. G120 of 1986 QLD. Gi21 of 1986 wee ven BETWEEN : QUEENSLAND TELEVISION LIMITED Applicant AND: AUSTRALIAN BROADCASTING TRIBUNAL Respondent BETWEEN : NEVILLE JOHN HARPER Applicant AND: AUSTRALIAN BROADCASTING TRIBUNAL Respondent BETWEEN : UNIVERSAL TELECASTERS OLD. LTD. Applicant AND: AUSTRALIAN BROADCASTING TRIBUNAL Respondent DATE JUDGMENT DELIVERED: 6 AUGUST 1987 COUNSEL: for Queensland Television Limited: Mr. D.K. Malcolm Q.C. and Mr. B. O'Donnell instructed by Dawson Waldron . for Neville John Harper: Mr. I.D.F. Callinan Q.C. and Mr. R. Bourke instructed by Solicitor-General (Qld.) for Universal Telecasters Qld. Ltd.: Mr. H. Nicholas Q.C. and Mr. J. Sacker instructed by Henderson Trout . for the Australian Broadcasting Tribunal: Mr. L. Katz instructed by the Australian Government Solicitor. T. MACDERMOTT ASSOCIATE TO SPENDER J. IN THE FEDERAL COURT OF AUSTRALIA ) ) QLD. G118 of 1986 QUEENSLAND DISTRICT REGISTRY ) QLD. G120 of 1986 ) ) QLD. G121 of 1986 GENERAL DIVISION BETWEEN: QUEENSLAND TELEVISION LIMITED Applicant AND: AUSTRALIAN BROADCASTING TRIBUNAL Respondent BETWEEN: NEVILLE JOHN HARPER Applicant AND; AUSTRALIAN BROADCASTING TRIBUNAL Respondent BETWEEN: UNIVERSAL TELECASTERS QLD. LTD. Applicant AND: AUSTRALIAN BROADCASTING TRIBUNAL Respondent SPENDER J. BRISBANE 6 AUGUST, 1987. REASONS FOR JUDGMENT These applications made pursuant to the Administrative Decisions (Judicial Review) Act 1977 seek to review six decisions made by the Australian Broadcasting Tribunal ("the Tribunal") on 25 July 1986 with reference to five episodes of a programme called "Queensland Unlimited". Queensland Television Limited is the holder of a licence pursuant to the Broadcasting Act 1942 2. ("the Act"), and at all material times operated QTQ Channel 9 in Brisbane; Universal Telecasters Qld. Ltd. holds a similar licence and operated Channel O in Brisbane. Mr. Kenneth Crooke, as Director, Government News and Information Services, deposes that, pursuant to an agreement made with Telemission Pty.Ltd., the State of Queensland is the owner of the copyright in the five episodes of "Queensland Unlimited", the subject of the decisions sought to be reviewed. The Attorney-General in his application says that he is authorised to bring these proceedings on behalf of the State of Queensland; that the State of Queensland is the owner of the copyright in the various editions of "Queensland Unlimited" in respect of which the decisions were made, and as such has a proprietary interest therein. The Attorney-General says that the decisions by the Tribunal are likely to deter the holders of commercial television licenses under the Act from transmitting the particular programs or similar material. It appears that the Queensland Government paid the channels to broadcast the relevant programs, though the relevance of this was the subject of submissions. The Tribunal decided that the episode entitled "City Train Links Extending" (broadcast by both channels on 27 October 1985) and the episode entitled "Cabinet Helps with Crisis" (broadcast by both channels on 9 March 1986) were in breach of s.117 of the Act. 3. It decided that the episode entitled "Our Casino World Class" (broadcast by both channels on 24 November 1985) was an "advertisement" within the meaning of Television Program Standard (TPS) 37. It further decided that the program "Cabinet Helps with Crisis", the episode entitled "Trade and Prosper" (which was broadcast by Channel 9 on 6 June 1986 and by Channel O on 8 June 1986), and the episode entitled "Northern Development - A Reality", (which was televised by Channel 9 on 20 June 1986 and by Channel 0 on 22 June 1986) were "advertisements" within the meaning of Television Advertising Condition (TAC) 1. The applicants seek orders setting aside each of the Tribunal's decisions, and orders declaring the rights of the parties in respect of the matters to which each of the decisions relate. There is no dispute as to the standing of each of the applicants to bring these proceedings. The Broadcasting and Television Act 1942 was extensively amended by the SBroadcasting and Television Amendment Act 1985 (No.66 of 1985) which, subject to qualifications not presently in the material, came into operation on 1 January 1986, and by the Brodcasting and Television Legislation Amendment Act 1985 (No.191 of 1985) which, subject to immaterial qualifications, came into operation immediately before 1 January 1986. Before the amendments introduced by Acts Nos. 66 and 191 of 1985, s.16(1)(d) and (e) provided:- 4. "The functions of the Tribunal are - {d) to determine the standards to be observed by licensees in respect of the broadcasting or televising of programs; {e) to determine the conditions subject to which advertisements may be broadcast or televised by licensees;" Section 100(4), at that time, provided:- "A licensee shall comply with such standards as the Tribunal determines in relation to the broadcasting or televising of advertisements." Section 3 of No.66 of 1985 omitted "and Television" from the title of the principal Act, and amended the definition section of the Principal Act by omitting some definitions and inserting others, including "broadcast" means "broadcast by radio or televise"; it also added the definitions:- 'program' includes advertisement and any other matter; 'program standard' means a standard or condition determined by the Tribunal in the performance of its function under paragraph 16(1)(d);" Section 94 and the Schedule to that Act amended s.117(1) by deleting the words "or televising" therefrom. Section 6 of Act No.191 of 1985 omitted s.16(1)(d) and (e) as set out above and substituted 16(1)(d) as:- "The functions of the Tribunal are - (a) by instrument in writing, to determine the standards to be observed by licensees in respect of the broadcasting of programs and in respect of programs to be broadcast;" The relevant program standards were changed as from 1 February 1986. In the case of items transmitted before that date the relevant program standards are the former television standard (TPS) 37 (definition of "advertisement") and the former TPS 46 (advertising time limits). In the case of items televised after 1 February 1986 the relevant program standards are Television Advertising Condition (TAC) 1 (definition of "advertisement") and TAC 11 (advertising time limits). The significance of all this is that there were differences in some respects in the applicable statutory provisions at the times of the various telecasts. Nonetheless, at all relevant times, the holders of a licence pursuant to the Broadcasting Act 1942 were required by the Act to provide programs and supervise the broadcasting of programs for that station in such a manner as to ensure, as far as_ practicable, that the programs were in accordance with standards determined by the Tribunal and to comply with such standards as the Tribunal determined in relation to the broadcasting of advertisements and also to comply with the requirements of s.117 of the Act. The decisions made by the Tribunal involved a determination that the licencees had failed to comply with the obligations imposed on them and each of them was thereby exposed to the risk that its licence might be suspended or revoked and that it might suffer prejudice on any hearing for the renewal of its licence. In considering the decisions of the Tribunal, the relevant law for consideration is that as at the date of telecast of each of the five episodes in question. Contrary to some 6. suggestions in argument, the law as at the date of the decisions of the Tribunal is irrelevant. It is convenient to deal first with the two decisions by which the Tribunal concluded that contraventions of s.117 of the Act were made out. These were the episodes "City Train Links Extending", telecast on 27 October 1985, and "Cabinet Helps with Crisis" telecast on 9 March 1986. Section 117 of the Act provides:- "(1) The Corporation or the licensee concerned, as the case may be, shall cause to be announced the name of every speaker who, either in person or by means of a sound recording device, delivers an address or makes a statement relating to a political subject or current affairs for broadcasting. (2) If the speaker is not the author of the address or statement, the name of the author shall be included in the announcement. (3) If the address is delivered or the statement is made on behalf of a political party, the name of the party shall be included in the announcement. (4) The announcement shall be made after the address or statement if it contains 100 words or less or before and after the address or statement if it contains more than 100 words. (5) The Corportion or the licensee, as the case may be, shall keep a record of the name, address and occupation of the author of each such address or statement and shall furnish to the Tribunal any particulars of the record which the Tribunal by notice in writing requires." In the introduction to its decisions, the Tribunal said:- 7. "These decisions may provide a guide to the principles to be applied by licensees and others when considering whether an item contains a statement or an address relating toa political subject or current affairs. They may also assist in the definition of 'advertisement' under the Tribunal's Program Standards." The episode "City Train Links Extending" was broadcast six days before a by-election for the seat of Redlands in Queensland Parliament. terms:- "The item deals with upgrading of the Brisbane Rail System, the success of the Queensland Rail system generally, and the construction of new hotel complexes in the city. Most of the sound track is provided by an unidentified announcer. However, two smaller segments are provided by the Queensland Minister for Transport, Mr. Lane, who is visually identified. The visual part of the item features images of trains, building sites and construction complexes. It also features a_ group shot including the Minister for Transport, the Premier and the candidate for the forthcoming Redlands by-election, who is not identified by Mame or status. The unidentified announcer's commentary includes the following passage: 'The State Government has already provided more than 6,000 off-street car parking bays at rail stations. But so popular is the service that parking demand has already outstripped supply. Commuters in the south-eastern suburbs will be able to ride to the city ain comfort aboard city trains from the end of next July. These are fast growing outlying areas and recognising this fact, the State Government has decided to proceed with taking the electric rail to Cleveland once the Wellington Point link is completed. The Premier and Transport Minister Mr. Lane have inspected the new link which has been the subject of extensive civil engineering design work which is now mostly completed. Construction time for the new single track is expected to be about 15 months.' " the It was described by the Tribunal in these 8. The decision of the Tribunal was:- "The sound track of this item in the context in which it occurs constitutes a statement or an address relating to a political subject. Because the item does not contain identification of the speaker and the author of the statement or address as required by s.117, the item is a breach of s.117(1) and s.117(2)." (my underlining) The Tribunal through the various decisions and reasons, consistently, if not invariably, used the collocation of words "a statement or an address" without seeking to make any distinction between those descriptions. One may infer that it regarded those descriptions as interchangeable, or perhaps that nothing turned on any distinction there may be between them. In the course of its reasons, the Tribunal said:- "In considering whether an item contains a statement or an address relating to a_ political subject 1t is necessary to consider the statement as a whole in the context in which it was transmitted." (my underlining) It also said that a relevant factor was the manner in which the statement or address is presented. It continued:- "This includes not only aspects such as style or Manner of presentation but also aspects such as the visual image accompanying a statement transmitted on television which explain or add or give meaning to that statement or address." The Tribunal said:- 9. "This item was transmitted six days before a State Government by-election in the Redlands electorate. In such a context subject matter relating to the beneficial performance of government in the electorate will normally be matter relating to a political subject. ... The manner of presentation of the sound track included statements by the Minister for Transport. The sound track was accompanied by visual images of the Premier of Queensland, the Minister for Transport and_ the National Party candidate for the Redlands by-election. These enhance and add meaning and effect to the sound track. The combination of all these elements raised as an issue the performance of the government in relation to a matter of some concern to voters at a time when the performance of that government was shortly to be an issue in a by-election, and indicated that a benefit would accrue to voters from the actions of that government. The result of this combination of elements 1s that the item contains a statement or address relating to a political subject." (my underlining) The episode "Cabinet Helps with Crisis", broadcast on 9 March 1986, was described by the Tribunal in part in this way:- "The item deals with the response of the Queensland Government to financial problems of the North Queensland sugar industry and the problems caused to North Queensland by Cyclone Winifred. It features country Cabinet meetings of the Queensland Government and the performance of the Queensland Government in regard to assistance given to sugar farmers. The visual part of the item features footage of workers repairing cyclone damage to buildings, scenes of the Queensland Cabinet meeting and footage of the Queensland Cabinet including the Premier. The film also features footage of Cabinet members meeting deputations and the Premier addressing a meeting of the local people in the local Town Hall." The Tribunal identifies various comments made by the Premier of Queensland, who said amongst other things:- "they (the people) know that we are concerned about their welfare." 10. It notes "He then comments that banks should give those affected by the problems of the sugar industry 'a break'". He says' that the banks must get their interest rates down, they must not sell up the people 'in their hour of need.'" "The announcer's voice then comments that the State Government agrees that the sugar industry needs urgent financial assistance. The announcer notes that at the end of the Cabinet meeting the Premier has announced an assistance package which exposes. the State Government to spending one hundred and seventy million dollars over three years to assist millers and growers. The announcer says this is conditional upon the Federal Government providing price support. The scene then changes to the meeting in the Town Hall, addressed by the Queensland Premier. The Premier says:- 'In the last three years this state government in Queensland under me has advanced seventy two million dollars into the assistance and support of the sugar industry. Against our seventy-two they put in ten millions. These are cold hard facts that nobody can get around them. We put seventy-two as I said all the time if anybody is helping the sugar industry it is the Queensland Government. We are closer to you, sure, but they collect your taxes - about seven or eight hundred million through the sugar industry and associated industries but from our part we are conscious, we are part of you, you are part of us, part of our Government'." "The Premier then indicates that he has made offers of support to the ''Babinda mill people' and promises his Government's support whether by way of 'grant, guarantee, or subsidy'. The Premier then goes on to say:- il. 'You start, and we'll look after you - that's' the attitude we've adopted - even though Canberra's far away and we're forgotten and not remembered obviously and that's the sad part.'" After some further features, the item closes with further scenes of damage done by the cyclone and the Premier's voice clearly identified as such on the screen saying:- "Traditionally, historically, down the years, for support for the car industry, by the million, the steel industry Canberra pays it. For the beef industry, for the wool industry, Canberra always pays it, never we've been asked - the states, or any of the states, other than this time they asked me, and Queensland to share part of alleviating the debt structure that people have. We are being singled out, and the people are suffering. That's the terrible part." The decision of the Tribunal was:- "The soundtrack of this item in the context in which it occurs constitutes a statement or address relating to a political subject. Because the item does not contain the identification of speakers and authors as required by s.117, the item is a breach of s.117(1) and s.117(2). This item constitutes an advertisement as defined in TAC 1. It is therefore subject to the time limits set out in TAC 11. So far as breaches of s.117 are concerned, the reasons of the Tribunal were:- "The statements made by both the unidentified announcer and the Premier of Queensland compare the performances of the Federal Government and the Queensland Government with respect to the sugar industry and the cyclone victims. This implies that there is much greater concern for the' sugar industry by the Queensland Government than by the Federal Government. This again is emphasised in comparison with the Federal Government by use of words like: 'even though Canberra's far away and we're forgotten'. The impression is enhanced by the referral to the closeness of the Queensland 12. Government to the people of Queensland and country Cabinet meetings. The degree of support to be given to primary industry by Governments is potentially a political issue depending on _ the manner of presentation, and the overall context. Here the subject matter is presented in such a way as to contrast the State and Federal Governments. The matter is not only presented in an informational way but in such a way as to maximize the political advantage to be gained by the providing of the information." It seems that this is the first occasion on which the Tribunal has been called upon specifically to decide whether or not a particular program could be characterised as "an address delivered or a statement made by a speaker relating to a political subject or current affairs." Section 117 of the Act appears in Part V, which is headed "General". It appears among provisions dealing with a number of different things, including functions of the Minister, the requirement that the A.B.C. make certain programs available to commercial television stations, the encouragement of Australian artists, and the televising of sporting events and entertainments. The Part includes s.116, which relates to the broadcasting of political matter or controversial matter. Apart from matter to be broadcast by the Australian Broadcasting Corporation, the section is specifically concerned with what is to take place during an election period, being the period from the day on which the writ for an election is issued and ending on the closing of the poll on polling day. "Election" includes an election for the Senate, the House of Representatives or a House ta hate 13. of a State Parliament. "Election matter" embraces matter commenting on or soliciting votes for a candidate, or commenting on or advocating support of a political party or commenting on or stating or indicating matters being submitted to the electors or any part of the policy of a candidate or matter referring to a meeting held or to be held in connection with an election. "Election advertisement" is defined as meaning:-— "(a) an advertisement —- (i) that contains election matter that relates to that election; and (ii) in respect of the broadcasting or televising of which the licensee that operates the relevant broadcasting or television station has received or is to receive, directly or indirectly, any money or other consideration; (b) an announcement containing a statement to the effect that a program that is to be or has been broadcast or televised 1S OF was sponsored by a particular person or persons and indicating that the person is a candidate, Or one or more of the persons 1S or are candidates, at the election; or (c) an announcement containing a statement to the effect that a program that 1s to be or has been broadcast or televised is or was sponsored by a particular political party, where a candidate at the election belongs to that political party;" Section 117A contains detailed provisions, the effect of which is that the Corporation or a licensee is required to keep records of broadcasts relating to a political subject or current affairs. Its terms have a present relevance. Sub-section 117A (1) provides:-— 14. "Where the Corporation or a licensee broadcasts or televises matter relating to a political subject or current affairs, being matter that is in the form of news, an address, a statement, a commentary or a discussion, the Corporation or the licensee, as the case may be, shall cause a record to be made, in writing or by means of a device for recording sound, of the matter or, if the matter is televised, of the matter inso far as it consists of sound." The primary contention for the applicants concerning the decisions involving s.117 was that an address or statement as referred to in ss.117(1), properly construed, is a formal address or statement. It would encompass a speech of the kind made by a political leader when opening an election campaign, or when making a statement of a formal character to the nation about a particular matter. It was submitted the rationale of the section was the undesirability of anonymous political propaganda or the avoidance of possible confusion that the views being expressed were the editorial views of the licensee or proprietor of the broadcasting station. The section, it was said, does not comprehend words spoken in the nature of a commentary or discussion. The submission was that the Tribunal's decisions erred in this respect and so misconstrued s.117(1), and further erred in that it decided that if any part of a program included an address or statement relating to a particular political subject or current affairs, the whole of the program should be so characterised, with the result that the name of every speaker and every author, as the case may be, should be announced in accordance with the requirements of s.117 of the Act. It was said that none of the matter contained in the relevant programs constituted an address 15. or statement relating to a political subject or current affairs for the purpose of ss.117(1) or, alternatively, to the extent that any such matter was contained in the said programs it was incidental only and insufficient to attract the operation of the section. The word "address" in ss.117(1) is a noun. In the Shorter Oxford Dictionary the meaning relevantly given to "address" is "a formal speech of congratulation, thanks etc; especially in reply to the Royal Speech at the opening of Parliament; a set discourse (less oratorical than a speech, less systematic than a sermon);" "discourse" includes as a definition "a spoken or written treatment of a subject at length; a dissertation, treatise, sermon, or the like (the prevailing sense.)" The meaning of the word "address" ain the section, for which the applicants contend, i.e. a formal speech ona given subject, accords with the primary definition of "address" given in the Macquarie Dictionary, viz. "A formal speech or writing directed to a person or a group of persons: an address on current problems." It was submitted that the use of "address" in the section colours the meaning of the word "statement" in the same context. In its widest sense, the word "statement" means any collocation of written or spoken words about any subject. The Shorter Oxford Dictionary includes as one of the meanings of "statement", "a written or oral communication setting forth 16. facts, arguments, demands or the like", and, it was said, it was in this sense that the word is used in s.117. Section 117, it was said, was confined to audible communications, of a formal kind, concerning a political matter or current affairs. The Tribunal was in further error therefore in having regard to non-audible matter, including the visual image of the candidate for Redlands in the episode "City Train Links Extending" in determining whether the episode constituted an address or statement covering a political matter. In addition, it was said, that this approach by the Tribunal further illustrated its misconstruction of ss.117(1). The submission that, on its proper interpretation, s.117 is concerned solely with a formal speech ona _ political subject or current affairs, is to be contrasted with the submission by counsel for the Tribunal, who submitted that "statement" in s.117(1) meant "the action or an act of stating, alleging or enunciating the manner in which something is' stated; that which is stated; an allegation or declaration." In short, that "statement" in that section was equivalent to "utterance". In my opinion, the obligations imposed by s.117 apply, on the proper construction of that section, only to audible communications that are of a formal, structured kind. There are a number of considerations which lead me to this view. Sub-section (1) of the section refers to "speaker", and "announcement". Indeed, the whole sub-section is concerned 17. with audible communication and not visual communication. The sub-section uses the words "delivers an address" and the words "makes a statement", both expressions apt to indicate a formality concerning the communication, and also the audible nature of the communication. The requirement in sub-section (2) that, if the speaker is not the author of the address or statement, the name of the author is to be included in the announcement, inclines to the same conclusion. So viewed, there is room for the use of both "statement" and "address". If, on the other hand, "statement" meant simply an utterance, the use of the word "address" is otiose. Moreover, if communications of that kind called for the requirements of the section, compliance would be impossible in the context of a talk—-back show or a panel program. In my view, it could not have been intended that anything said by anyone on television about a political subject or current affairs would constitute a statement about a political subject or current affairs for the purposes of s.117. I reach this conclusion on the basis of the words in the section themselves, but there are two considerations which fortify me in that conclusion. The first is the history of the section. The Australian Broadcasting Commission was created in 1932. The Australian Broadcasting Commission Act 1932 dealt in ss.52 with the question of political speeches. Section 52 provided:- 18. "The Commission shall have the power to determine to what extent and in what manner political speeches may be broadcast." At the time that that provision was enacted, commercial broadcasting was not regulated by means of statute, but by means of regulations made under the Wireless Telegraphy Act 1905. In 1932, there was no reference in those Regulations to any political matter or the broadcasting of political matter in any way. In 1940, by Statutory Rule No.94 of 1940, Regulation 63A was inserted into the Wireless Telegraphy Regulations. It provided:- "(1) The Licensee of a broadcasting station shall announce or cause to be announced the true name and title of every speaker, other than those of a member of the staff of the station, who is, either in person or through the agency of a_ sound recording device, to deliver an address or make a statement relative to politics or current affairs for transmission from the broadcasting station. (2) The announcement shall be made at such a time and in such a manner, before and after the address or statement, as will fully disclose the identity of the speaker to any person listening to the address or statement. (3) The Licensee of the broadcasting station shall keep a record of the name, title, postal address and credentials or occupation of each such speaker and shall produce any particulars of the' record which the Postmaster-—General by notice in writing requires." This provision seems to be the direct ancestor of s.117, dealing as it does with addresses and statements relating to politics. uae 19. In 1942 there was the report of the Joint Committee on Wireless Broadcasting, known as the Gibson Committee Report. It touched on what it described as "political programs" so far as it concerns the A.B.C. at paragraphs 256-269, and so far as it concerns commercial broadcasters at paragraphs 405-412. In paragraph 260 of its report, the Gibson Committee referred to s.22 of the Canadian Broadcasting Act 1936, which provided, inter alia:- "The names of the sponsor or sponsors and _ the political party, if any, upon whose behalf any political speech or address is broadcast, shall be announced immediately preceding and immediately after such broadcasts." The Gibson Committee recommended adoption of provisions in Australia equivalent to the Canadian provision. It is to be noted that the Canadian provision deals with "speech or address". When s.117 was enacted in 1942, it adopted the language of "an address or statement", which words had previously been used in Regulation 63A of the Wireless Telegraphy Regulations. The choice of the words used in the first enactment of s.117 does not, in my view, lend any support to the suggestion, made on behalf of the Tribunal, that the use of the word "statement" extends the ambit of s.117 to any utterance. The second consideration which, in my view, supports the conclusion to which I come concerning the proper interpretation of s.117 is the terms of s.117A. 20. I accept the correctness of the submission on behalf of the applicants that the presence of the words "news commentary and discussion" as categories of matters relating to a_ political subject or current affairs that is broadcast, as well as the use of the words "address and statement", highlight that the words "address" and "statement", in s.117 are used to indicate a formal, structured communication. The Act draws a_ distinction between what might properly be characterised as an address or statement, and what might be categorised as "news", or as "a commentary" or as "a discussion". In my view, the Act, in s.117A(1), draws a distinction, being one of form, in _ the broadcasting or televising of news, an address, a statement, a commentary or a discussion. For the Tribunal it was submitted that it would be improper to have regard to the terms of s.117A, inserted considerably after s.117 was introduced in 1942, for the purpose of ascertaining the meaning of s.117. I accept that the meaning of s.117 cannot be dictated by the terms of the succeeding section but, in my view, it is possible to read the' sections harmoniously. In my opinion, the Tribunal fell aunto error in considering that s.117 applied to broadcast material of the kind in the two episodes in question. It seems to me also that there is error implicit in the reasoning of the Tribunal in that, while it acknowledged the necessity to consider the statement as a whole in the context in which it is transmitted, it erroneously concluded that, if an item contains a statement or address 21. relating to a political subject, then the item as a_ whole constitutes a statement or address on a political subject. For these reasons, I propose to order that those decisions of the Tribunal be set aside. There was a further point taken by counsel for the Attorney-General concerning these decisions. It was submitted that the Tribunal had fallen into error in classifying those episodes as relating to a political subject, in that it failed properly to distinguish proper governmental activity from party politics. It was submitted that the two programs were informational, and that they did not relate to a political subject. The adjective "political", according to the longer Oxford Dictionary, can mean "belonging to or taking a side in politics or in connection with the party system of government". In my opinion, the word "political" in s.117 1s used in this sense. The question of whether material relates to a_ political subject is a matter of fact, to be judged by viewing the material objectively, as a whole, and in the context in which the communication is made. I do not accept that because the communication is made by a government, that consideration prevents that communication from being a communication relating to a political subject. That government might with complete propriety engage in the promulgation of information need not be questioned. It is conceivable, however, that under the guise of informing, a government is really and truly broadcasting matter relating to a political subject. 18a 22. I should note that it was not suggested that the Queensland Government is not subject to the Broadcasting Act 1942. Finally, before leaving this aspect of the matter, I should make it plain that I am here concerned solely with questions of law: in particular, I am not concerned with any question of the propriety, or otherwise, of government funds being expended in the way involved in these programs, or of the utility or value of them. Those are considerations which are outside the domain of judicial review, and properly so. I now turn to the four decisions of the Tribunal by which the Tribunal concluded that episodes constituted "advertisements" according to the relevant standard. As earlier indicated, 1n the case of items transmitted before 1 February 1986, the relevant program standards are the former Television Program Standard (TPS) 37 (definition of "advertisement") and the former TPS 46 (advertising time limits). In the case of items televised after 1 February 1986 the relevant program standards are Television Advertising Condition (TAC) 1 (definition of "advertisement") and TAC 11 (advertising time limits). The Television Program Standards 37 provided:-— "For the purpose of these Standards, the term 'advertisement' includes all advertising matter relating to goods or services whether by means of the visual or sound components of television, or both, and whether in the form of direct or superimposed announcements, slogans, descriptions 23. or otherwise and music, as well as any identifiable reference in the course of a program to any goods or services, whether of the advertiser or not. The term 'advertisement' does not include the brief announcement of a sponsor's name and business (billboard) at the beginning and end of a program which is scheduled for a duration of not less than 15 minutes, announcements which constitute a public or charitable service; or, except under the conditions stated in paragraph 49, announcements which refer to forthcoming television programs (program or station promotion) provided that they do not contain direct advertising matter." This is relevant only to the episode "Our Casino World Class", which was broadcast on 24 November 1985. That episode concerned the new casino on the Gold Coast. The Tribunal describes it, in part, in this way: "The item opens with aerial views of the Gold Coast coastline and an exterior view of the casino. The unidentified announcer indicates that the Gold Coast acts as 'a Mecca' for tourists and that the State Government's decision to approve the construction of the casino has paid off. The scene then shifts indoors to the Premier of Queensland making an opening speech at the casino, with shots of gambling tables, gamblers at a roulette wheel anda 'keno' player. The sound track notes that the maximum pay-out ona jackpot can be a quarter of a million dollars. There is then a segment involving an interview with the Premier discussing the various benefits that will accrue to Queensland from the casino, including the increase in jobs, the wages bill and the increase in tourist potential." There are further views of the inside of the casino and an interview with the Director of Casino Operations and, later, 24. the interior of one of the bedrooms of the casino is shown, with the announcer saying the accommodation is "plush" and generally speaking in an adulatory way concerning the accommodation at the hotel and the facilities there. There is then an interview with the Chairman of the Queensland Tourist Commission and the episode concludes with an interview with the Premier, who says that the casino is "all first class, no question". He goes on to. say how well it is controlled and says "the Government has insisted on the finest hotel standards and the most rigid control". The decision by the Tribunal was that the item constituted "an advertisement, for the services provided by the Casino, under the former TPS 37. It would therefore be subject to the relevant advertising time limits under the former TPS 46." The Tribunal in its reasons said in part:- "The fact that an item may perform other functions as well, for example informing the public of the activity of the government or of the increase in hotel building activity in the area, does not means that it is not also an advertisement. The casino complex provides services, including the provision of facilities for gambling and accommodation. The item, when taken as a whole, promotes the use by the public of both the gambling and accommodation facilities provided as services by the casino. The repeated depiction of the facilities for gambling in this item goes beyond the limit of neutral provision of information. This is coupled with the use of terms such as 'plush' 'pampered', references to 'special toiletries and tropical fruits and tight security', and to the high payout levels. A price range for accommodation is given. The authoritative figure of the Premier says the casino is 'first class', that it has the 'finest hotel standards' and is rigidly controlled. Taken together, all the elements add up to a clear case of promotion of the gambling and accommodation facilities provided by the Casino." 25. The Tribunal did not find that the episode constituted an advertisement of the Government. The Tribunal found that the episode "Cabinet Helps with Crisis" to which I have earlier referred in connection with its finding concerning s.117, constituted an advertisement as defined in TAC 1 and was therefore subject to the time limit set out in TAC 11. TAC 1, which applied from 1 February 1986, was in these terms:— "Advertisement means matter which draws the attention of the public, or a segment thereof, to a product, service, person, organisation or line of conduct in a manner calculated to promote, or oppose, directly or indirectly that product service, person, organisation or line of conduct. For the purposes of these conditions the term advertisement does not include the transmission of matter of an advertising character as an accidental or incidental accompaniment of the transmission of other matter in circumstances in which the licensee does not receive payment or other valuable consideration for transmitting the advertising matter. It also does not include an announcement of 10 seconds duration or less of the name and business of a sponsor of a program at the beginning and end of that program provided the program is not less than 15 minutes long, community service announcements for which the licensee does not recelve payment or other valuable consideration for their transmission, or station identifications and program promotions." In its reasons for concluding that the "item" was an advertisement as defined by TAC 1, the Tribunal said:- "In considering whether an item 1s an advertisement, the question is frequently one of style and presentation. In this case the factual information conveyed relating to the damage done to the sugar industry and the need for the assistance and to the Queensland Government's » E-a 26. assistance could have been conveyed in such a manner as not to amount to advertising. In this case, however, when considered as a whole it is clear that the effect of the item is to promote the services supplied by the Queensland Government. The definition of advertising is not intended to, and will not, catch the presentation of information in a neutral and factual manner. However, in this case the information has been assembled in such a way as to promote the services of the Queensland Government" The episode "Trade and Prosper" was described by the Tribunal in these terms:- "This item deals with the subject of overseas trade, and the efforts of the Queensland Government to promote overseas trade for Queensland industries. It features trade missions to overseas countries, Queensland overseas trade offices and trade delegations from other countries to Australia. The sound track deals with the positive benefits of overseas trade and the efforts of the Queensland Government to promote overseas trade and the beneficial results of these efforts for Queensland manufacturers and with the need for Australian manufacturers to involve themselves in overseas trade. The unidentified announcer's commentary includes' the following passage:- 'Potential contracts and new business totalling over one hundred million dollars resulted from last year's major mission to Japan." Both the Minister for Industry, Mr. Ahern, and the Premier appear in the item and are visually identified. Among other things, Mr. Ahern says:- "Queensland must get in on the _ ground floor now. Of the eight Queensland companies who took part in the Enterprise Queensland Trade Mission to the Republic all of them have done new business with the Chinese. This mission is just part of our push to make Queensland industry more aware of its international potential and to encourage our manufacturers to participate more in international business.'" The Tribunal decided:- 27. "This item does constitute an advertisement as defined in TAC 1 for active involvement in exporting." Its reasons for this conclusion were shortly stated. They were:- ",..the item promotes active behaviour - involvement in overseas trade. This active behaviour amounts to a line of conduct, and its promotion is therefore an advertisement." The Tribunal reached a similar conclusion in relation to the episode "Northern Development - a Reality". It is unfortunately necessary to give an extensive description of this episode because of the conclusions to which the Tribunal came. The Tribunal describes it in these terms:- "The item opens with an announcement of the Premier and Cabinet holding a country cabinet meeting at Atherton in far north Queensland and thus getting a 'first-hand look' at the concerns of country people. The Cabinet 1s shown meeting deputations and mention is made of the vast tourist potential of Northern Queensland. The unidentified announcer then says that the Queensland Tourist Development Corporation 1s constantly providing development such as a vast tourist promotion at Port Douglas. There 1s then a segment in which the announcer indicates the advantages of this development, with aerial and exterior shots of the development. The announcer claims this will result in an increase of population of Port Douglas from 600 to 3000. The announcer' then discusses the huge potential market that can be tapped from increases in international flights coming into Cairns. The scene then cuts to footage of Mr. Katter the Queensland Minister for Northern Development who is visually identified on the screen. Mr. Katter extols the advantages of North Queensland as a tourist resort and says that Northern Queensland is on the verge of a tourist explosion. In the context of these laudatory references to the area and its tourist potential he specifically mentions the Sheraton and _ the Hilton. The scene then moves to a_ recently constructed road through the Daintree forest and the announcer mentions the number of tourists now using that road. The scene then shifts to footage of hotels under construction and the discussion of increase in hotel building. The announcer 28. mentions that the 'giant Ramada chain' has opened a resort at Palm Beach. He mentions another, Melanesian style resort that has also been opened. These resorts are shown on the screen, and the scene then shifts to Cairns, North Queensland. There is a mention of the fact that construction projects currently being carried out will result in a thousand extra beds for tourists in Cairns. The scene then shifts to a Cabinet meeting and discussion of State Government approval of grants to tourist projects. Health Minister Brian Austin is shown on the screen and the announcer mentions a new development being approved for the Atherton district hospital and other development projects concerning Queensland hospitals. The scene' then shifts to show the Minister for Main Roads, Mr. Hinze, and announcement of upgrading of the roads system in Northern Queensland. The scene then shifts to show the Premier admiring a model patrol boat which may be built. After some further discussion of the prospect of building the patrol boat, and the construction of roads etc., Mr. Katter again appears discussing the infrastructure provided in far Northern Queensland by the Government and the magnificence of Far North Queensland. He specifically refers to the Qintex Development at Cairns and the Breakwater Casino at Townsville. He mentions the job prospects from the increased industry in far northern Queensland and the item closes." The decision of the Tribunal was:~ " .,.-It is...an advertisement for the Queensland Government, the far north Queensland area as a provider of tourist services, and several commercial entities including Sheraton, Hilton, the Ramada chain, Qintex and the Breakwater casino at Townsville. It is therefore subject to the time limits set out in TAC 11." In its reasons, the Tribunal said:- "The item performs a number of functions. It provides information about Far North Queensland and about the Queensland Government's activities there and about commercial entities active in the region. ... In addition to its informational characteristics, this item promotes as a tourist attraction the far north of Queensland. Part of that promotion is promotion of the specific resorts and commercial entities mentioned above. It is important to emphasise that the finding that the commercial 29. organisations are promoted is a result of the effect of the item as a whole. In another context, given a different method of presentation, the naming of a commercial entity might not amount to promotion. In addition to promoting the actual resorts, the style of the advertisement is such as to promote the services of the Queensland Government in developing the Far North Queensland area." Concerning the decisions relating to "advertisements", it was submitted by the applicants, as a threshold question, that both Television Program Standard 37. and Television Advertising Condition 1 were ultra vires the Tribunal. A subordinate legislating authority must, of course, keep within the mandate given to it by parliament. The Privy Council in Utah Construction & Engineering Pty.Ltd. v. Pataky (1966] A.C. 629 at p. 640 said with a nice diplomacy:- "Their Lordships adopt with approval the statement in the judgment of the High Court of Australia in Shanahan v. Scott (1956) 96 C.L.R. 245, 250 Yelating to the construction of a _ provision similar to s.22(1) of the Scaffolding and Lifts Act 1912-1960, to the following effect: 'The result is to show that such a power does not enable the authority by regulations to extend the _ scope or general operation of the enactment but is strictly ancillary. Tt will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its end.'" 30. See also Hoffmann-La Roche & Co. v. Secretary of State for Trade and Industry [1975] A.C. 295 at p. 349. It was submitted that s.16(1)(d) did not authorise the Tribunal to formulate any definition of "advertisement", the Act itself leaving the term "advertisement" undefined. The submission was that the power to formulate conditions or standards is mot the same and can never be the same as_ the formulation of what the thing is to which the standards or conditions have to be applied. This, it was said, 1s what the Tribunal purported to do. Further, just as the Tribunal was not empowered to define what an advertisement is, it was not empowered to define what an advertisement was not. TPS 37 is expressed in inclusionary terms, and refers to all advertising matter 'relating to goods or services." In my opinion, the purported definition clearly comprehends conduct that would not be advertising in its ordinarily understood sense. It includes, for instance, "any identifiable reference in the course of a program to any goods or services, whether of the advertiser or not." It also purports to exclude matter which might constitute an advertisement within the ordinary meaning of that term. It follows, in my view, that in defining "advertisement" as it did in TPS37, the Tribunal purported to exercise a power it did not have. Its power to make standards did not permit it to define what an advertisement was, at least if its "definition" differed from the ordinary meaning of advertisement. 31. In its decision concerning the episode, "Our Casino World Class", the Tribunal concluded that it constituted an advertisement for the services provided by the casino "under the former TPS 37." It is clear that in so concluding, the Tribunal applied the provisions of TPS 37, and did not assay the task of whether the episode was an "advertisement", as ordinarily understood. It follows that it applied the wrong test. Further in relation to this episode, I am of the view that the characterisation made by the Tribunal, namely that the episode was an advertisement for the services provided by the casino, was not reasonably open to it. That conclusion is probably sufficient for present purposes, but my view is that the episode is a simple case of self promotion: the episode had the effect of promoting and enhancing the reputation of the Queensland Government as an efficient, hardworking and successful organisation in this area, the reference to the services provided by the casino being quite ancillary or incidental to the primary effect of the episode. While it may be quite irrelevant for the purpose of characterisation, I feel sure that the effect of the episode to which I have arrived was the one intended by the Government in securing its broadcast. The three remaining episodes held to constitute advertisements were so held by the Tribunal by reference to TAC 1. 32. It was submitted that, for similar reasons to that advanced in respect of TPS 37, TAC 1 was ultra vires the Tribunal. While not without some hesitation, I am of the view that TAC 1 is not outside the power conferred on the Tribunal by s.16(1)(d). In my view, while that provision does not empower the Tribunal to define what an advertisement is or is not, the purported definition in the first sentence of TAC 1 corresponds closely with the ordinary meaning of that word, and the' further provisions of the purported definition do not amount to a usurpation of a power by that Tribunal of a function foreign to it but, fairly read, relate to the specifying of advertising conditions within the power of the Tribunal. I therefore turn to the consideration of the Tribunal's decisions that these three episodes were advertisements. It was submitted by the applicants that, to constitute an advertisement, there needed to be a business or commercial element in the promotion. Reliance was placed on the observations of Gibbs J., as he then was, in Deputy Commissioner of Taxation (Cwealth) v. Rotary Offset Press Pty.Ltd. (1971) 45 ALJR 514. His Honour was there concerned with whether a publication, which consisted mainly of properties listed for sale with photographs and advertisements inserted by members of the Real Estate Institute of New South Wales and other Ard 33. advertisements, was exempt from sales tax. His Honour conc that it was not exempt from sales tax, all material in it than a small proportion being "advertising matter". His Honour said at p. 521:- "The question remains whether the Realtor 1s 'advertising matter' and within par.(e). The word 'advertise' means to make generally or known, or to give public notice of, but the 'advertising matter' in the context of publicly phrase atem 51 Must have a somewhat more limited meaning, and must be restricted to published announcements of a business kind, for example, calling attention to the fact that property 1s for sale and setting out its qualities, especially the desirable ones. In my opinion, it is clear that the greater part of the material contained in The Realtor 1s 'advertising matter'. It seems to me that all the parts of the publication other than the articles and questions and answers andthe 'fill ins', indexes, mastheads etc. are advertisements —- there 1s no other word by which they may properly be described." It was said that the evidence showed that the advertisement of the properties referred to in the announcements was not the sole or even dominant purpose which actuated publication." His Honour continued:- the their "The question whether a periodical is 'advertising matter' seems to me to depend on whether the periodical viewed objectively and without regard to the actual intentions of those publishing it, answers that description. In other words, if the periodical on its face appears to be designed to promote the sale of property by means of a public announcement that it is for sale, and by giving a description of its qualities and a statement of its price, it is 'advertising matter' notwithstanding that its publication was, in fact, promoted not only by the desire to sell the property, but for other purposes as well." luded other And later, concerning the non-advertising material contained in the publication, his Honour said:- 34, "When the publication is looked at as a whole, it seems to me that the articles and answers to questions are, like the 'fill ins', indexes and mastheads, merely ancillary to the whole production and do not alter its character. The question is one of fact and degree and, indeed, perhaps almost one of impression." On appeal, his Honour's judgment received the approbation of the High Court: (1972) 46 ALJR 609. It was therefore submitted that these episodes ought properly to be regarded as news reports or commentary on various aspects of life in Queensland and, not having any commercial or business aspect, did not constitute an advertisement in _ the ordinary way. Gibbs J. in the Rotary Offset Case was not concerned with this question. As is implicit in my finding that the first sentence of TAC 1 comprehends the ordinary meaning of an advertisement, I am of the view that it 1s not necessary that there be a business or commercial element to advertising, in the sense of necessarily being associated with the derivation of profit, or the promotion of goods and services as an incident of commerce. In the ordinary meaning of the word, there can be advertisements of political parties, advertisements promoting a particular conduct, a particular viewpoint, or a particular lifestyle. 35. In Rothmans v. Australian Broadcasting Tribunal (1985) 5 F.C.R. 330; 58 A.L.R. 675, the Full Court (constituted by Bowen C.J., Toohey and Wilcox JJ.) noted at p.338, p.682:- "Counsel for the appellants presented no argument to deny that, in ordinary parlance, the word 'advertisement', standing alone, has the meaning which the Tribunal attributed to it in cl. 2.2 of its policy statement." (That meaning is in all material respects that which appears in the first sentence of TAC 1). The fact that that concession was made, of course, by no means determines the matter. However, I share the opinion expressed by Fox J. at first instance in that matter (The Benson and Hedges Company Pty.Ltd. v. The Australian Broadcasting Tribunal, unreported 10 October 1984), where his Honour said:- "The Tribunal did not attempt to make its decision dependent on its own subjective view as to whether there was an advertisement but expressly referred the matter to the opinion of the reasonable person, which, of course, it had to assess. In doing so it can be taken to have applied the meaning given to 'advertisement' in its policy statement. I do not think a precise or comprehensive definition of that term can be arrived at. The one expressed is a little elliptical in its closing lines, but can, I think, be taken as a fair working definition. It was proferred in order to offer guidance, and in relation to a particular case may, inevitably, be found imperfect." The Full Court in Rothmans at p. 339, p. 683, dealing with the question of whether a broadcast was an advertisement for, or for the smoking of, cigarettes or cigarette tobacco, said:- 36. "That issue is to be objectively determined; the question being 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. It is, of course, a commonplace of cinematic and television advertising that a significant proportion of the total footage is material free of any discernible commercial message, being designed primarily to attract and develop viewer interest. The expressly commercial content is often a small proportion of the whole. As Gibbs J. made clear, material which otherwise answers the description of peing 'advertising material' — or in the instant cases 'an advertisement for, or for the smoking of, cigarettes or cigarette tobacco' - does not lose its character as such merely because it 1s calculated to serve other purposes as well. Advertisements are often designed to entertain or to amuse, sometimes to instruct. Material does not cease to be an advertisement of a_ relevant type simply because it is calculated to achieve such ends or because some viewers may value it more for these qualities than for its commercial message. Similarly, many advertisements are calculated - and in a subjective sense intended - to enhance the general reputation or, to use the current jargon, 'corporate image' of the advertiser. The fact that a particular advertisement may have that propensity, or that 1t may be produced with that intention, does not preclude its characterization -1f it meets the test set out above ~ as an advertisement for a particular product or practice." Dealing with the program "Cabinet Helps with Crisis", and applying these principles, I am of the view that it was open to the Tribunal to conclude that the episode as a whole constituted an advertisement for the services supplied by the Queensland Government, being services associated with the assistance provided by the Queensland Government to the sugar 37. industry. It may be that the episode properly is to be characterized as a simple promotion of the Queensland Government itself, as reflected by its conduct in these particular areas, but the view to which the Tribunal came is one which was open to it. Of the episode "Trade and Prosper", the conclusion of the Tribunal was that:- "The item promotes active behaviour - involvement in overseas trade. This active behaviour amounts to a line of conduct, and its promotion 15 therefore an advertisement." In my opinion, this characterisation of the episode was not open to it and should be set aside. The episode, while urging Queensland industry to engage in international business, does so as ancillary or incidental to its promotion of the activity of the Queensland Government. I shall hear the parties in respect of what I should do in respect of the disposition of the review of this decision. Concerning the _ episode "Northern Development - a Reality", the Tribunal concluded that it was "an advertisement for the Queensland Government, the far north Queensland area as a provider of tourist services, and several commercial entities including Sheraton, Hilton, the Ramada chain, Qintex, and the Breakwater Casino at Townsville." I am of the view that it was not open to the Tribunal to conclude that the episode, considered as a whole, was calculated to draw public attention towards and promote the use of services 38. provided by or in connection with the commercial entities including Sheraton, Hilton, the Ramada chain, Qintex, and the Breakwater Casino at Townsville, nor was the episode calculated to draw public attention to and promote the use of the far north Queensland area as a_ provider of tourist services or to promote such services in such a manner as to constitute such a program an advertisement within the meaning of TAC 1. I think, however, it was open to the Tribunal to conclude that the episode constituted an advertisement for, or of, the Queensland Government. In respect of this decision also, I shall hear the parties as to disposition of the review of it. I propose to hear the parties as to what orders I should make in the light of these reasons, and on costs. ! certify that this and the 37 preceding pages are a true copy of the reasons for judgment herein of His our Mr Justice Spender irAS by q 6/ef27 *" — Associate Dated