Australian Capital Television Pty Ltd v. The Commonwealth of Australia [No. 2] (Matter No. S5 of 1992); The State of New South Wales v The Commonwealth of Australia [No. 2] (Matter No. S6 of 1992)
177 CLR 106(Judgment by: Brennan J)
Australian Capital Television Pty Ltd; The State of New South Wales v
The Commonwealth of Australia [No. 2]
Judges:
Mason CJ
BrennanDeane, Toohey
Dawson
Gaudron
McHugh JJ
Judgment date: 17-19 March 1992, 30 September 1992
Judgment by:
Brennan J
Pt3D of the Broadcasting Act 1942 (Cth) ("the Act") was introduced into the Act by the Political Broadcasts and Political Disclosures Act 1991 (Cth) ("the amending Act"). In substance, Pt3D bans political advertising during election periods, whether the election be a Commonwealth, State, Territory or Local Authority election and during prescribed periods prior to voting on Commonwealth referenda.
The Bill for the amending Act was passed after reports by two Parliamentary Committees. The first report, entitled "Who pays the piper calls the tune", was prepared by the Parliamentary Joint Standing Committee on Electoral Matters in June 1989; the second report was a report on the Bill then before the Senate and it was prepared by the Senate Select Committee on Political Broadcasts and Political Disclosures in November 1991 ("the Senate Report"). The problem addressed by the first Report was summarised in its preface: "The rising cost of television advertising time has coincided with the growing use of that medium for political advertising. This has greatly increased the reliance of parties on corporate sponsorship. The Committee is concerned that heavy reliance by parties on such sponsorship risks the distortion of our open democratic system. The electoral system should ensure that large financial sponsors, having paid the piper, do not also call the tune. The wider membership of political parties should not lose its influence within the respective parties."
The Report contained statistics of expenditure on political advertising showing, inter alia: Expenditure on -
| Broadcasters | Publishers | Public Funding | |
| 1984 election: | $4,437,374 | $2,672,707 | $7,806,777 |
| 1987 election: | $9,172,815 | $5,726,824 | $10,298,657 |
In 1984, the last year in which printers' returns were available, expenditure on printing was of a much lower order than expenditure on broadcasters and publishers. The Minister's second reading speech on the Bill for the amending Act in the House showed that expenditure by major political parties on broadcasting in the 1990 federal election rose to more than $15 million [101] .
The amending Act bans not only advertising by political parties but also political advertising by charitable organisations. That ban was supported by the Minister in his second reading speech as a remedy for inequality in the financial strength of proponents and opponents concerned with particular issues. The Minister gave an example drawn from the 1990 elections. During that election period, expenditure on political broadcasting advertisements by persons other than political parties was $1.7 million. "Of that figure," said the Minister, "over $1.1m was expended by the logging industry, while the Australian Conservation Foundation spent just over $25,000 on broadcasting activity" [102] . The view taken by the Government was put thus: "The reality is that only the rich can get their message across by ... means [of electronic advertising]" [103] . Of course, the political motivation for legislation is in itself immaterial to its constitutional validity. Nor is it necessary to resort to the legislative history of the amending Act in order to cast light on its interpretation. But the matters to which I have referred identify the perceived mischiefs at which Pt3D was aimed. If Pt3D is appropriate and adapted to the remedying of those perceived mischiefs, the legal question is whether the remedying of those mischiefs is a subject within the legislative power of the Parliament. Pt3D is valid if it be a law for the elimination or reduction of factors that distort the system of representative democracy prescribed by the Constitution and does not stifle political discussion. Its validity is impugned on the ground that it offends a constitutional guarantee of freedom of communication to and among the Australian people.
A GUARANTEE OF FREEDOM OF COMMUNICATION
The first issue is whether there is any guarantee of freedom of communication implied in the Constitution. For reasons which I give in Nationwide News Ltd v Wills [104] , I would hold that the legislative powers of the Parliament are so limited by implication as to preclude the making of a law trenching upon that freedom of discussion of political and economic matters which is essential to sustain the system of representative government prescribed by the Constitution. To hold that the Constitution contains such an implication is not to state any very precise criterion for determining the validity of impugned legislation. The law under review in Nationwide News purported to suppress any comment calculated to bring the Australian Industrial Relations Commission into disrepute when the Commission had important governmental functions entrusted to it. The suppression was so broad that the overreaching of the limitation on legislative power was manifest. In this case, however, there is only a partial and temporary restriction on political advertising. The challenge to the validity of Pt3D therefore calls for a closer analysis of the implied limitation placed on legislative power by the freedom of discussion needed to sustain the system of representative government. That freedom includes, but is not confined to, a freedom to communicate information and ideas.
It is convenient in the context of Pt3D to speak of the implied limitation as a freedom of communication, for the terms are reciprocal: the extent of any relevant limitation of legislative power is the scope of the relevant freedom. But, unlike freedoms conferred by a Bill of Rights in the American model, the freedom cannot be understood as a personal right the scope of which must be ascertained in order to discover what is left for legislative regulation; rather, it is a freedom of the kind for which s92 of the Constitution provides: an immunity consequent on a limitation of legislative power. The power cannot be exercised to impair unduly the freedom of informed political discussion which is essential to the maintenance of a system of representative government. Whether that freedom is regarded as an incident of the individual right to vote [105] or as inherent in the system of representative and responsible government prescribed by Ch. I of the Constitution, it limits the legislative powers otherwise conferred on the Parliament. The freedom begins at a boundary varying with the subject matter of each law. In an extreme case - for example, a law imposing wartime censorship - the freedom to discuss matters of defence may be virtually eliminated. The variable boundary of the freedom follows from the consideration that, in order that a law may validly restrict a freedom of communication about political or economic matters, the restriction must serve some other legitimate interest and it must be proportionate to the interest to be served. Thus, a law which (being otherwise within power) forbids the publication of fraudulent or obscene material, or of seditious utterances or of defamatory matter without justification or excuse, or of advertisements for dangerous or prohibited drugs, is a law which trespasses upon absolute freedom to communicate, but it is a valid law provided the restrictions imposed by the law are proportionate to the interest which the law is calculated to serve. The proportionality of the restriction to the interest served is incapable of a priori definition: in the case of each law, it is necessary to ascertain the extent of the restriction, the nature of the interest served and the proportionality of the restriction to the interest served.
THE EXTENT OF THE RESTRICTION
Restrictions on political advertising are imposed by s95B, s95C and s95D of the Act. Each of those provisions is subject to s95A which provides: "(1) Nothing in this Part prevents a broadcaster from broadcasting: (a) an item of news or current affairs, or a comment on any such item; or (b) a talkback radio program. (2) Nothing in this Part prevents the holder of a public radio licence who provides a service for visually handicapped persons from broadcasting any material that he or she is permitted to broadcast under s119AB. (3) Nothing in this Part prevents a broadcaster from broadcasting an advertisement for, or on behalf of, a charitable organisation if: (a) the advertisement is aimed at promoting the objects of the organisation; and (b) the advertisement does not explicitly advocate voting for or against a candidate in an election or a political party. (4) Nothing in this Part prevents a broadcaster from broadcasting public health matter, whether by way of advertisement or otherwise. (5) In this section: 'charitable organisation' means a public organisation whose objects are to benefit the public through the relief of poverty, or the advancement of education, religion, public health or science; 'public health matter' means any matter relating to public health, other than matter that: (a) directly or indirectly promotes or criticises a particular public health system; or (b) explicitly advocates voting for or against a candidate in an election or a political party."
The term "broadcaster" is defined to mean [106] the Australian Broadcasting Corporation, the Special Broadcasting Service Corporation or a television or radio licensee. The effect of s95A is to leave the electronic media unaffected during an election period [107] in the broadcasting of news and current affairs programmes, commentaries on items in those programmes, talk-back programmes, public health broadcasts and broadcasts for charities (provided, in the last two instances, the broadcasts are not political in the sense of being directed to the formation of voters' opinions in an election). Broadcasters are free to broadcast "exempt matter" as defined in s4. That definition covers the kind of advertising that flows from the performance of the ordinary functions of government having no political reference.
S95B, s95C and s95D then impose restrictions on political advertising by means of the electronic media during election periods. These sections call for separate consideration for they purport to suppress political advertising during different election periods: s95B relates to elections to the Parliament of the Commonwealth and Commonwealth referenda, s95C relates to elections to the legislature or to a local government authority of a Territory and s95D relates to elections to the Parliament or to a local government authority of a State. Each of these sections is said to be supported by the Parliament's power over broadcasting (s51(v) of the Constitution), but other and differing considerations affect the validity of each section. S95B is said to be supported by the Parliament's power over Commonwealth elections (s10, s29, s31, s51(xxxvi) and s51(xxxix) of the Constitution). S95C also attracts the Territories power: s122. S95D is attacked on the grounds that it interferes with the organs of the States and impairs the capacity of the Executive Governments of the States to function. A further argument on behalf of the States is that the ban on political advertising by States, which is imposed by each of s95B(3), s95C(4) and s95D(3), singles out the States and their authorities for discriminatory treatment. It is convenient to consider the validity of s95B, s95C and s95D in turn, and then to mention briefly the ban on political advertising by States. The first subject for examination is whether s95B, which imposes restrictions on political advertising by means of the electronic media during election periods relating to elections to the Commonwealth Parliament and Commonwealth referenda, is a valid law of the Commonwealth. That section provides: "(1) A broadcaster must not, during the election period in relation to an election or a referendum, broadcast any matter (other than exempt matter) for or on behalf of the government, or a government authority, of the Commonwealth.
(2) A broadcaster must not, during the election period in relation to an election or a referendum, broadcast a political advertisement for or on behalf of a government, or a government authority, of a Territory. (3) A broadcaster must not, during the election period in relation to an election or a referendum, broadcast a political advertisement for or on behalf of a government, or a government authority, of a State. (4) Subject to Divisions 3 and 4, a broadcaster must not, during the election period in relation to an election or a referendum, broadcast a political advertisement: (a) for or on behalf of a person other than a government or government authority; or (b) on his or her own behalf. (5) Where the election concerned is a by-election, this section is taken to apply only to broadcasting: (a) in the case of a broadcast made as part of a broadcasting service without a service area - to the area in which the relevant electoral district, or any part of it, overlaps with the area in which the broadcasting service is normally received; and (b) in the case of a broadcast made as part of a broadcasting service with a service area - to the area in which the relevant electoral district, or any part of it, overlaps with the service area. (6) In this section: 'election' means an election to the Parliament of the Commonwealth; 'political advertisement' means an advertisement that contains political matter; 'political matter' means: (a) matter intended or likely to affect voting in the election or referendum concerned; or (b) matter containing prescribed material; but does not include exempt matter;
'prescribed material' means material containing an express or implicit reference to, or comment on, any of the following: (a) the election or referendum concerned; (b) a candidate or group of candidates in that election; (c) an issue submitted or otherwise before electors in that election; (d) the government, the opposition, or a previous government or opposition, of the Commonwealth; (e) a member of the Parliament of the Commonwealth; (f) a political party, or a branch or division of a political party."
During an election period, no government or government authority of the Commonwealth, of a State or of a Territory and no other person is permitted to broadcast or to authorise the broadcast of a political advertisement. That is a direct restriction on communications of a political kind at a time when discussion of politics is of great importance to an electorate which is shortly to go to the polls. As Windeyer J remarked in Australian Consolidated Press Ltd v Uren [108] : "Freedom at election time to praise the merits and policies of some candidates and to dispute and decry those of others is an essential of parliamentary democracy."
However, s95B does not affect the print media nor - by reason of s95A - does it inhibit the dissemination of news, news commentary or any material other than political advertising by the electronic media.
THE INTEREST TO BE SERVED BY THE RESTRICTION
By eliminating the opportunity, s95B eliminates the practical need to engage in the most expensive form of media advertising available to influence voter opinion in an election campaign. The restriction on political advertising as a means of reducing the expenditure on election campaigns is not a novel experiment unique to Australia. The Senate examined the position in other liberal democracies and found that the position was "complex", being affected by the regime governing broadcasting in each country. In some countries, no advertising is permitted; in others no political advertising is permitted, or none during specified periods. It appears that, for one reason or another, paid political advertising is not permitted during election times in the United Kingdom, Ireland, France, Norway, Sweden, Denmark, Austria, The Netherlands, Israel or Japan. Paid political advertising is permitted during election periods in Germany, Canada (for 28 days only), the United States and New Zealand. It is also permitted in Switzerland but "there is little advertising by political parties on the electronic media due to the high costs involved" [109] . Many of the countries which ban paid political advertising during election times have constitutions guaranteeing the right to freedom of expression [110] . Although Art. 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms guarantees a freedom to "impart information and ideas", a challenge to the ban on political advertising on British television failed [111] . The European Commission of Human Rights held it to be evident that the freedom guaranteed by Art. 10 "cannot be taken to include a general and unfettered right for any private citizen or organisation to have access to broadcasting time on radio and television in order to forward its opinion" [112] . It held that the recognition of a State's power to license broadcasting and television permitted the granting of licences which excluded political advertising.
It can hardly be doubted that reduction in the cost of effective participation in an election campaign reduces one of the chief impediments to political democracy. In the United Kingdom, the need to control electoral expenses of candidates has long been recognised. The objects of control, says Professor Birch [113] , were "preventing corruption and keeping wealthy candidates or parties from having an untoward advantage over others". He notes that central expenses of political parties are not controlled: "but they are minimal compared with the equivalent expenditures in the United States and Canada. One reason for this is the shortness of the campaign period - normally between three and four weeks. The other main reason is that the parties cannot buy advertising time on television or radio. They get a certain number of free broadcasts each and a great deal of free news coverage, which has to be balanced and impartial between the main parties." [114]
In the United Kingdom's response to the challenge to the ban on political advertising on television, the Minister advised the European Commission of Human Rights that the ban: "served 'to prevent the exponents of political views with the longest purse - whoever these may be - from having an advantage in terms of buying time on television to promote their cause'. If the clause did not exist, less well endowed parties or movements would have great difficulty in maintaining their point of view in the face of massive purchase of advertising time by their opponents." [115] Of course, a prohibition on political advertising by means of the electronic media is not the only way of minimising the risk of corruption or of reducing the untoward advantage of wealth on the formation of political opinion. A more direct way of achieving that result is to limit the expenditure which an individual or an organisation is permitted to make on political advertising. Until 1980, PtXVI of the Commonwealth Electoral Act 1918 had limited the electoral expenditure of candidates, but the provisions of PtXVI "proved to be unworkable" [116] . If the limiting of expenditure incurred by or on behalf of candidates has proved to be unworkable in this country, the elimination of an opportunity for political parties, interest groups or individuals to engage in costly advertising on the electronic media is easily seen as an alternative means of minimising the risk of corruption or of reducing the untoward advantage of wealth on the formation of political opinion. S95B is appropriate and adapted to that end. The Parliament chosen by the people - not the Courts, not the Executive Government - bears the chief responsibility for maintaining representative democracy in the Australian Commonwealth. Representative democracy, as a principle or institution of our Constitution, can be protected to some extent by decree of the Courts and can be fostered by Executive action but, if performance of the duties of members of the Parliament were to be subverted by obligations to large benefactors or if the parties to which they belong were to trade their commitment to published policies in exchange for funds to conduct expensive campaigns, no curial decree could, and no executive action would, restore representative democracy to the Australian people.
The minimising of the risk of corruption of the Parliament and the reduction of an untoward advantage of wealth in the formation of political opinion are important objects to be advanced, if there be power to do so, by the laws of the Commonwealth. The powers available for the support of s95B are the Parliament's powers over broadcasting and Commonwealth elections. The power conferred by s51(v) of the Constitution extends to the control of radio and television services [117] and of the conditions on which a licence to broadcast radio or television programmes may be granted or exercised [118] . A law prohibiting the broadcasting of some political advertisements is clearly a law falling within the power.
S95B is also a law with respect to Commonwealth elections. In Smith v Oldham [119] it was argued that "[l]egislation which goes beyond securing the complete free collection of the opinions of the people and which seeks to limit the materials from which those opinions are derived is not legislation as to elections". Isaacs J rejected the argument, saying [120] : "[T]o confine the power of the Parliament to a supervision of the mechanism [of voting] is to neglect the vital principle behind it. The vote of every elector is a matter of concern to the whole Commonwealth, and all are interested in endeavouring to secure not merely that the vote shall be formally recorded in accordance with the opinion which the voter actually holds, free from intimidation, coercion and bribery, but that the voter shall not be led by misrepresentation or concealment of any material circumstance into forming and consequently registering a political judgment different from that which he would have formed and registered had he known the real circumstances."
In Evans v Crichton-Browne [121] the Court said that this statement "is no doubt true as a statement of general principle", though the Court construed s161(e) of the Commonwealth Electoral Act 1918 to refer merely to the recording of an elector's political judgment [122] .
The legislative power of the Parliament over elections thus extends to the making of laws governing the publication of material calculated to affect the voters' electoral judgments, even to the extent of prohibiting the publication of misleading information [123] . It is precisely because the power is so broad that it is necessary to imply some limitations which preclude its exercise to destroy or substantially to impair the system of representative democracy which the power is created to serve. The freedom of communication which is essential to the maintenance of a representative democracy must be respected, especially during an election campaign. Although s95B bears the character of a law with respect to broadcasting and Commonwealth elections, it restricts the freedom of communication and such a restriction is valid only if it be proportionate to the legitimate ends which it is appropriate and adapted to serve.
PROPORTIONALITY
To determine the validity of a law which purports to limit political advertising, it is necessary to consider the proportionality between the restriction which a law imposes on the freedom of communication and the legitimate interest which the law is intended to serve. If the prohibition on political advertising by means of the electronic media during election periods imposed by s95B is not disproportionate to the objects of minimising the risk of political corruption and reducing the untoward advantage of wealth in the formation of political opinion, s95B is a valid law even though it restricts to some extent the freedom of political discussion [124] . Proportionality is, of course, a matter of degree. When the boundary of permissible restriction on freedom of speech is passed, the law imposing the restriction loses the constitutional support of the power which would otherwise be available to support it [125] . Thus, in Davis v The Commonwealth [126] Mason CJ, Deane and Gaudron JJ said that the statute there under consideration: "reaches far beyond the legitimate objects sought to be achieved and impinges on freedom of expression by enabling the Authority to regulate the use of common expression ... and by making unauthorised use a criminal offence. Although the statutory regime may be related to a constitutionally legitimate end, the provisions in question reach too far. This extraordinary intrusion into freedom of expression is not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power."
In the same case, I placed some emphasis on the nature of the law to indicate the variable range of permissible restriction, saying [127] : "Freedom of speech may sometimes be a casualty of a law of the Commonwealth made under a specific head of legislative power - e.g., wartime censorship - or of a law designed to protect the nation - e.g., a law against seditious utterances - but freedom of speech can hardly be an incidental casualty of an activity undertaken by the Executive Government to advance a nation which boasts of its freedom."
The Constitution does not operate in a political vacuum. It operates in and upon contemporary conditions. Some parts of the Constitution, notably Pt2, Pt3 and Pt4 of Ch. I, govern the political branches of government. It follows that when an implication, drawn from these provisions, of a freedom of political communication is relied on to invalidate a law, the implied freedom must be considered in the context of the contemporary and relevant political conditions in which the impugned law operates. If the content of the implied freedom of political discussion were ascertainable by reference solely to the constitutional text, and without reference to the political conditions in which the impugned law operates, the scope of the freedom would have to be expressed as a mere matter of form, not as a matter of substance. If it were to be expressed as a mere matter of form, the Court would be the only forum competent to express it definitively but the Court could hardly evaluate with any pretence to accuracy the substantive effect of a freedom thus expressed on the political milieu in which the law is to operate. It follows that the Court must allow the Parliament what the European Court of Human Rights calls a "margin of appreciation" [128] . It is both simplistic and erroneous to regard any limitation on political advertising as offensive to the Constitution. If that were not so, there could be no blackout on advertising on polling day [129] ;
indeed, even advertising in the polling booth would have to be allowed unless the demands of peace, order and decorum in the polling booth qualify the limitation [130] . Though freedom of political communication is essential to the maintenance of a representative democracy, it is not so transcendent a value as to override all interests which the law would otherwise protect. For example, it is a substantial restriction on freedom of political communication to make the publication of matter defamatory of a public figure unlawful unless the defamer can plead and prove justification or a defence of qualified privilege. Yet our law has not exposed public figures to the risk of defamation to the same extent as the Bill of Rights has been thought to expose them in the United States [131] . Freedom of political discussion is essential to the democratic process, chiefly for two reasons: it is a stimulus to performance in public office and it is conducive to the flow of information needed or desired for the formation of political opinions. But the salutary effect of freedom of political discussion on performance in public office can be neutralised by covert influences, particularly by the obligations which flow from financial dependence. The financial dependence of a political party on those whose interests can be served by the favours of government could cynically turn public debate into a cloak for bartering away the public interest. If Pt3D tangibly minimises the risk of political corruption, the restrictions it imposes on political advertising are clearly proportionate to that object of the law. Whether Pt3D would tangibly minimise the risk of corruption was a political assessment. It was for the Parliament to make that assessment; it is for the Court to say whether the assessment could be reasonably made [132] . In reviewing the assessment made by the Parliament, it is necessary to form some estimate of the effect of the restrictions imposed by Pt3D on the flow of information needed or desired by electors to form their political judgments. If those restrictions effectively deny electors the opportunity to form political judgments or substantially impair their ability to do so, the restrictions are invalid. There would be no proportionality between restrictions having so stifling an effect on political discussion on the one hand and the apprehended risk of corruption or the untoward advantages flowing from wealth on the other. But the restrictions do not block the flow of information. All news, current affairs and talk-back programmes are unaffected by the restrictions. The print media are unaffected. The other methods of disseminating political views such as public meetings, door knocks and the distribution of handbills are unaffected.
The principal advertisements affected by Pt3D are television advertisements. It is not necessary to determine finally the contribution made by television advertising to the mass of information needed or desired by electors to form their political judgments, but it is impossible to conclude that the Parliament could not reasonably make an adverse assessment of the information value of television advertising. Television advertising is brief; its brevity tends to trivialise the subject; it cannot deal in any depth with the complex issues of government. Its appeal is therefore directed more to the emotions than to the intellect. The Senate Report cited the conclusion of two political scientists, Dr Ward and Dr Cook, that: "restriction of television advertising would not adversely affect any elements of the right to freedom of speech ... On the contrary, they argued that banning televised advertising by political parties and pressure groups 'might well safeguard aspects of Australian democracy which televised political advertising itself has put at risk'" [133] Reciting the opinion of persons experienced in political advertising by television, the Committee expressed its view [134] : "The weight of this evidence confirmed for the Committee the debased nature of most political advertising, its alienating effects and its universal failure to convey information about policies to the voters. The Committee does not dismiss lightly the opposition to the bill on the grounds that it would restrict freedom of speech, but it sees merit in the arguments put forward by Drs Ward and Cook, and others, that the advertising industry's loss might be democracy's gain. "
The Committee's view accords with the view of some observers in the United States who contend that political advertising "at best lacks substance and at worst obscures and distorts crucial issues" [135] .
Indeed, the Senate Committee was warned of the dangers of following the American example [136] . The advertising techniques adopted in the United States are familiar to Australian television audiences. They include the promotion of stylised images "more powerful than words and words cannot rebut images" [137] the creation of misleading non-verbal impressions, the association of candidates with something universally approved or, conversely, universally condemned, the reinforcing of viewers' prejudices, fears and uncertainties and the repetition of catchwords until they attain truth by familiarity.
No doubt it is true to say that the formation of political judgment is not solely an intellectual exercise. Aspirations and ideals are the stuff of statesmanship. But the articulation of aspirations and ideals and the conveying of information can be distinguished from many forms of political advertising. It was open to the Parliament to make a low assessment of the contribution made by electronic advertising to the formation of political judgments. It was open to the Parliament to conclude, as the experience of the majority of liberal democracies has demonstrated, that representative government can survive and flourish without paid political advertising on the electronic media during election periods. The restrictions imposed by s95B are comfortably proportionate to the important objects which it seeks to obtain. The obtaining of those objects would go far to ensuring an open and equal democracy. The openness of political discussion and the equality of the participants in the democratic process makes governments responsive to the popular will. The restrictions on advertising do little to inhibit the democratic process. In my view, the implied limitation on the legislative powers supporting s95B is not trespassed upon by the restrictions which it imposes.
Although the restrictions imposed by s95B preclude electronic advertising by individuals or interest groups who are unrepresented in the Parliament, individuals or interest groups are otherwise free to propose or oppose any lawful political policy. They have no personal right to advertise by the electronic media and, if the restriction on such advertising is justifiable in order to achieve the objects of Pt3D, the incidental consequence that that avenue of advertising is closed to individuals or interest groups does not entail invalidation. Putting to one side for the moment the effect of s95B on the States, I would hold the section to be valid.
S95C
S95C is supported not only by s51(v) but also by s122 of the Constitution as a law "for the government" of a territory. Putting to one side for the moment its effect on the States, I would hold s95C to be valid. Even if the implied constitutional freedom of political communication places a limitation on the legislative power conferred by s122 (a question which I do not and need not decide), the limitation is infringed neither by s95B nor by s95C. However, the effect of Pt3D on the States requires separate consideration.
S95D AND THE PROHIBITIONS IN S95B AND S95C ON STATE ADVERTISING
S95D prohibits the broadcasting of political advertisements during election periods in relation to elections to the Parliament or local authorities of a State. Subs(1) and subs(2), which prohibit political advertising [138] by or on behalf of the governments or government authorities of the Commonwealth and the Territories, regulate, or are a means of regulating, the conduct of the Executive Governments of the Commonwealth and the Territories and are a constitutionally valid exercise of the Parliament's power over those Executive Governments. The only legislative power available to support subs(3) and subs(4) of s95D is s51(v) of the Constitution. The limitation on that power which guarantees a freedom of political communication in relation to the government of the Commonwealth and its territories certainly precludes an exercise of the broadcasting power that would substantially impair the freedom of political discussion essential to maintain the representative governments of the several States. The Constitution is constructed on the footing that each State has a Parliament [139] and an Executive Council to advise the Governor [140] . The Constitutions of the respective States are continued as they were "as at the establishment of the Commonwealth" [141] . Representative government in the States is a characteristic of their respective Constitutions, and the legislative power of the Commonwealth cannot be exercised substantially to impair the freedom of discussion needed to maintain representative government. However, for reasons stated above in relation to s95B, I would not regard s95D as trespassing on the freedom of political discussion essential to the preservation of the representative governments of the States. However, another implication drawn from what Dixon J in Melbourne Corporation v The Commonwealth [142] called "the very frame of the Constitution" bears upon the validity of s95D.
As the Constitution predicates the continuing existence of the States as independent entities [143] , the Constitution implies that: "the Commonwealth will not in the exercise of its powers discriminate against or 'single out' the States so as to impose some special burden or disability upon them, unless the nature of a specific power otherwise indicates, and will not inhibit or impair the continued existence of the States or their capacity to function." [144] Although the laws of the Commonwealth can validly facilitate the functioning of the States - for example, by providing for communication facilities or facilities for the interstate execution of State process - a law which purports to control, for good or ill, political discussion relating to State elections purports to burden the functioning of the States with the constraints it imposes. The functions of a State include both the machinery which leads to the exercise of the State's powers and privileges and the machinery by which those powers and privileges are exercised. Some functions are performed by the electors, some by officials of the State. Among the functions of the State I would include the discussion of political matters by electors, the formation of political judgments and the casting of votes for the election of a parliament or local authority. Laws which affect the freedom of political discussion in matters relating to the government of a State, whether by enhancement or restriction of the freedom, are laws which burden the functioning of the political branches of the government of the State with statutory constraints and restrictions. S95D(3) and s95D(4) is such a law. S95D is expressed to apply during election periods in relation to elections to State Parliaments and local authorities, and to the broadcasting of advertisements containing "political matter", which is defined in terms that limit, or very nearly limit, the restrictions imposed by that section to the broadcasting of advertisements relating to State political matter. Although s95D(3) and s95D(4) is a law with respect to broadcasting, it is offensive to the implication which protects the functioning of the States from the burden of control by Commonwealth law. It is invalid on that account.
The Solicitor-General for New South Wales also submitted that the prohibitions against political advertising by or on behalf of States contained in s95B(3), s95C(4) and s95D(3) invalidly interfere with the capacity of the Executive government of the State to govern and to protect the efficacy of State laws and policies from affectation by Commonwealth laws and policies. It is unnecessary to deal with s95D(3) which I have already held to be invalid. If the general prohibitions on political advertising contained in s95B and s95C are laws with respect to heads of Commonwealth legislative power, their effect on the freedom of the Executive Government of a State to engage in electronic political advertising during Commonwealth or Territory election periods does not deprive those sections of constitutional support. I refer to, without repeating, what I said in The Tasmanian Dam Case [145] about the liability of State executive power to be affected by a law of the Commonwealth.
The only ground on which the States might claim exemption from the operation of s95B(3) and s95C(4) is that those provisions single out the States or affect their functioning. Clearly those provisions do not single out the States: rather they ensure that the position of the States is the same as the position of all other governments and persons. Nor do those provisions affect the functioning of the States: they leave the States free to exercise such powers and privileges as are lawfully vested in and available for exercise by the States. This challenge to the validity of s95B(3) and s95C(4) fails.
FREE TIME
S95H to s95R provide for the allocation of "free time" for the broadcasting of "election broadcasts" as defined by s95G. S95G seeks to ensure that election broadcasts avoid some of the undesirable features of political advertising: election broadcasts by television must last for 2 minutes and show the head and shoulders of a person speaking, unaccompanied by moving images or other vocal sounds; election broadcasts by radio must last for 1 minute without vocal sounds other than the speaker's voice. Where units of free time are "allocated" by the Australian Broadcasting Tribunal ("the Tribunal") to a broadcaster under s95P, the broadcaster is required to "make the unit or units available for use in making ... election broadcasts ... on behalf of the political party, person or group to whom the time is granted" and the broadcaster "must do so free of charge": s95Q(1) and s95Q(5). The free time requirement was said to amount to an acquisition of property otherwise than on just terms and to be invalid for breach of the requirements of s51(xxxi) of the Constitution.
In The Tasmanian Dam Case [146] I pointed out that there is no acquisition on which s51(xxxi) may fasten unless the Commonwealth or some other person acquires a proprietary right under the impugned law. In the same case, Mason J said [147] : "The emphasis in s51(xxxi) is not on a 'taking' of private property but on the acquisition of property for purposes of the Commonwealth. To bring the constitutional provision into play it is not enough that legislation adversely affects or terminates a pre-existing right that an owner enjoys in relation to his property; there must be an acquisition whereby the Commonwealth or another acquires an interest in property, however slight or insubstantial it may be."
In Reg v Toohey; Ex parte Meneling Station Pty Ltd [148] , Mason J cited with approval the definition of property given by Lord Wilberforce in National Provincial Bank Ltd v Ainsworth [149] : "Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability."
His Honour added [150] : "Assignability is not in all circumstances an essential characteristic of a right of property. By statute some forms of property are expressed to be inalienable. Nonetheless, it is generally correct to say, as Lord Wilberforce said, that a proprietary right must be 'capable in its nature of assumption by third parties'".
Although property is generally assignable, that is not universally so for, as Isaacs J said in Commissioner of Stamp Duties (NSW) v Yeend, "[a]ssignability is a consequence, not a test" of a proprietary right [151] .
Assignability may therefore be denied to what is, by other tests, properly found to be property. Nonetheless, the want of assignability of a right is a factor tending against the characterisation of a right as property. Pt3D creates no assignable rights. Under Div 3 of Pt3D, broadcasters are statutorily bound to provide free broadcasting time to the political parties and other groups and persons to whom free time units are allocated. It is immaterial to the validity of Pt3D that broadcasters are denied the right to broadcast what they wish during free time, or that broadcasters must use their property to provide election broadcasts during free time, for neither of these effects creates, extinguishes or transfers property. It is immaterial that Pt3D reduces the value of a broadcaster's licence [152] for the beneficiaries of the free time provisions acquire none of the rights or privileges conferred by a broadcaster's licence. The beneficiaries acquire a statutory right to have their election broadcasts transmitted free of charge. That is a right to the services of the broadcaster; it is not a proprietary right. As neither the Commonwealth nor the beneficiaries acquire rights that are "property" within the meaning of the term in s51(xxxi), the challenge to the free time provisions on the ground that they effect an acquisition of property otherwise than on just terms fails.
The validity of the provisions which deal with the allocation of free time is more open to question. Political parties represented in the previous Parliament or a retiring Senator seeking re-election are entitled to the allocation of free time, but other political parties, candidates, groups or individuals seeking to participate in the election or the election debate will be allocated free time only in the discretion of the Broadcasting Tribunal [153] . These provisions and the provisions of s95A place in the hands of the Tribunal and of the broadcasters discretionary powers which could be exercised to unbalance political discussion and to deny publicity to candidates or causes of whom or of which the electorate ought to be informed. By minimising the risk of corruption and eliminating the untoward political advantages of wealth, the Parliament has enhanced the influence of broadcasters and has created a discretionary power that could operate to impair balanced political discussion. That is a political consideration relevant to the wisdom of Pt3D, but it does not deny the law such constitutional support as it otherwise commands. The law does not, on that account, trespass upon that freedom of political communication which is beyond the reach of Commonwealth law.
The States are given no right to free time nor any right to apply for free time. They are thus denied an opportunity to make an "election broadcast". In this respect, however, the States and State Government authorities are in no different position from all other Governments and Government authorities. They are not "singled out" for adverse treatment. A State is not impermissibly "singled out" by being denied a statutory right or benefit that is given to individuals or groups but denied to all governments and government authorities.
In my opinion, the several provisions of Pt3D are laws with respect to one or more of the heads of Commonwealth legislative power. However, s95D(3) and s95D(4) is a law infringing that implied limitation on Commonwealth legislative power which precludes the making of laws which burden the functioning of the States. The free time provisions do not provide for the acquisition of property so as to attract the operation of s51(xxxi) of the Constitution. I would therefore hold Pt3D of the Broadcasting Act 1942 (Cth) other than s95D(3) and s95D(4) to be valid. In the action Australian Capital Television Pty Ltd and Ors v The Commonwealth of Australia [No. 2], I would allow the demurrer except in relation to s95D(3) and s95D(4). I would make a similar order as to the first paragraph in the demurrer in The State of New South Wales v The Commonwealth of Australia and Anor [No. 2].