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(Decision by: Deane and Toohey JJ)
Australian Capital Television Pty Ltd; The State of New South Wales v
The Commonwealth of Australia [No. 2]
Judges:
Mason CJ
Brennan
Deane, TooheyDawson
Gaudron
McHugh JJ
Judgment date: 17-19 March 1992, 30 September 1992
Decision by:
Deane and Toohey JJ
The background of these demurrers and the relevant statutory provisions are set out in the other judgments. We refrain from unnecessary restatement of them. In issue is the validity of the provisions of Pt2 of the Political Broadcasts and Political Disclosures Act 1991 (Cth) ("the Amending Act"), which purported to insert Pt3D into the Broadcasting Act 1942 (Cth) ("the Act"). It is convenient, for the purposes of discussion, to treat that issue as if it related directly to the validity of the provisions of Pt3D of the Act rather than to the validity of the relevant provisions of the Amending Act.
In Nationwide News Pty Ltd v Wills [154] , we explained in some detail our reasons for concluding that it is an implication of the doctrine of representative government embodied in the Commonwealth Constitution that there shall be freedom within the Commonwealth of communication about matters relating to the government of the Commonwealth. The grants of legislative power contained in s51 of the Constitution, which are all expressly made "subject to" the Constitution, must be construed in the context of that implication and as prima facie confined by its content. The fact that the implication is drawn from an underlying doctrine of the Constitution rather than from any express term means, however, that the implication will itself be overridden to the extent that either the nature of a particular legislative power contained in s51 or the words in which it is conferred manifest an intention to that effect.
The impugned law in Nationwide News was a law prohibiting oral or written communications which were calculated to bring a particular Commonwealth governmental institution into disrepute. Accordingly, it was unnecessary for the purposes of that case to determine whether the Constitution's implication of freedom of communication was confined to communications in relation to the Commonwealth government and governmental instrumentalities and institutions, as distinct from State or other regional governments and governmental instrumentalities and institutions. While not expressing a firm view in relation to that question, we identified the considerations favouring the view that the implication extended to all levels of public government within the Commonwealth [155] : "Under the Australian federal system, however, it is unrealistic to see the three levels of government - Commonwealth, State and Local - as isolated from one another or as operating otherwise than in an overall national context. Indeed, the Constitution's doctrine of representative government is structured upon an assumption of representative government within the States [156] and, to a limited extent, an assumption of the co-operation of the governments and Parliaments of the States in the electoral process itself [157] . As a practical matter, taxes levied by the Executive of the Commonwealth under laws made by the Parliament are applied for public purposes through and at all levels of government. Political parties or associations are likely to exist in relation to more than one level of government and political ideas are unlikely to be confined within the sphere of one level of government only. Clearly enough, the relationship and interaction between the different levels of government are such that an implication of freedom of communication about matters relating to the government of the Commonwealth would be unrealistically confined if it applied only to communications in relation to Commonwealth governmental institutions. "
It is necessary, for the purposes of the present case, to reach a firm view on the question whether the Constitution's implication of freedom of communication extends to all political matters, including matters relating to other levels of government, within the national system which exists under the Constitution. In our view, for the reasons given in the above passage and by Gaudron J in her judgment in the present case, it does.
The implication of freedom of communication about the government of the Commonwealth is not an implication of an absolute and uncontrolled licence [158] . It is an implication of freedom under the law of an ordered and democratic society. In determining whether a purported law conflicts with the implication, regard must be had to the character of the impugned law. In particular, a law whose character is that of a law with respect to the prohibition or restriction of communications about government or governmental instrumentalities or institutions ("political communications") will be much more difficult to justify as consistent with the implication than will a law whose character is that of a law with respect to some other subject and whose effect on such communications is unrelated to their nature as political communications. A law prohibiting or restricting political communications by reference to their character as such will be consistent with the prima facie scope of the implication only if, viewed in the context of the standards of our society, it is justified as being in the public interest for the reason that the prohibitions and restrictions on political communications which it imposes are either conducive to the overall availability of the effective means of such communications [159] or do not go beyond what is reasonably necessary for the preservation of an ordered and democratic society or for the protection or vindication of the legitimate claims of individuals to live peacefully and with dignity within such a society.
It was submitted on behalf of the Commonwealth that the provisions of Pt3D are within the scope of the legislative powers conferred by s51(v) of the Constitution with respect to the electronic media ("other like services") [160] and, in so far as the provisions of Pt3D relate to the prohibition or restriction of political communications during the "election period" preceding an election to the Commonwealth Parliament, within the legislative powers conferred by s10, s29, s31 and s51(xxxvi) and s51(xxxix) of the Constitution with respect to such an election [161] . Clearly, if all of those provisions of the Constitution were to be construed without regard to the context of the Constitution as a whole or the express or implied guarantees and implications which it contains, that submission advanced on behalf of the Commonwealth would be irresistible. Equally clearly, however, none of the provisions can be so construed.
There is nothing in the words or content of any of the provisions conferring legislative power upon which the Commonwealth relies which manifests an intention to derogate from, or to authorise the making of laws derogating from, the Constitution's implication of freedom of political communication. That being so, those provisions must be construed as confined by that implication. It was submitted on behalf of the Commonwealth that no valid objection could be taken to a prohibition of political advertisements on television and radio since a general prohibition of all advertisements on television and radio would be within Commonwealth legislative power. Even if it be assumed that that would be so, however, the assumption says no more to the question of the consistency of the provisions of Pt3D with the Constitution's implication of freedom of political communication than would an assumption that a State Parliament had legislative power to ban all newspaper advertising within the State say to the question whether a specific and protectionist ban on any newspaper advertising by out-of-State traders was consistent with s92's guarantee of freedom of inter-State trade and commerce. The ban on political communication through the medium of advertising on television or radio must be assessed in the context in which it operates, namely, a context where advertising in general is permitted on commercial radio and television stations. It is in that context that the ban must be seen as a legislative prohibition not of advertising as such but of political communication to and by the people of the Commonwealth through two of the methods by which such communications could otherwise be lawfully made. It follows from what was said in our judgment in Nationwide News [162] that the legislative provisions imposing the prohibitions infringe the Constitution's implication of freedom of communication and are beyond the scope of the relevant grants of legislative power unless they are justified in the public interest in the limited sense which we have explained above. We turn to a consideration of the question whether they are so justified.
There are three aspects of the regime which Pt3D imposes which are of particular importance for present purposes. The first has been partly identified in what has been said above. It is that the basis of the regime is a series of prohibitions of any "political advertisement" on television and radio [163] during the "election period" relating to a constitutional referendum or a Commonwealth, State, Territory or Local Government election or by-election. The word "advertisement" in Pt3D was deliberately left undefined [164] . It would seem to be used in a broad general sense which would encompass any broadcast or telecast of material "designed or calculated to draw public attention" to something [165] regardless of whether the broadcast or telecast "serves a purpose other than that of advertising" [166] . The definitions of "political advertisement", "political matter" and "prescribed material" for the purposes of the prohibition are very wide.
Subject to the exemption in respect of items of news or current affairs and talk-back radio [167] and certain special qualifications or exemptions [168] , the overall effect of the prohibitions is to preclude a person not entitled to "free time" from any participation in the electoral process by political communication on television or radio during an "election period".
The second aspect is the extent to which the system of entitlement to free political advertising which Pt3D introduces in relation to an election to the Parliament of the Commonwealth or a State or the legislature of a Territory favours those already represented in the relevant Parliament or legislature and the political parties to which they belong. The grant of entitlement to free time is placed in the hands of the Australian Broadcasting Tribunal which is required to grant ninety per cent of the total free time in respect of a particular election to political parties which were represented in the relevant Parliament or legislature at the end of the last pre-election sittings and which are "contesting the election with at least the prescribed number of candidates" [169] . The ninety per cent free time to be so allocated to political parties must, so far as practicable, be distributed so as to "give effect to the principle that the amount of free time granted to each party should bear the same proportion to the total free time period [i.e. the ninety per cent of all free time] ... as the number of formal first preference votes obtained by that party or its candidates at the last election to the relevant Parliament or legislature bears to the total number of such votes" obtained by all the relevant political parties or their candidates [170] . When one turns to examine the difficult provisions of the Act dealing with the allocation of the remaining ten per cent of free time, it is apparent they are heavily weighted in favour of any other political parties [171] or existing independent senators [172] . It is at least possible that an independent candidate who was not a member of the previous Parliament or legislature would be unsuccessful in any application for free time [173] .
The third aspect is the most important for present purposes. It is that the overall effect of the provisions of Pt3D is that all individual members of the community who are not "a candidate ... in the election" [174] and all groups and organisations which are not "a political party [which] ... has endorsed one or more candidates" [175] are excluded altogether from the allocation of free time. For practical purposes, that means that, putting to one side news and current affairs items and "talkback radio" programs and subject to some qualifications and exemptions which it is unnecessary to detail [176] , the only persons or organisations permitted to engage in political communication by advertising on the electronic media during an election period are candidates for election and the political parties to which they belong or by which they have been endorsed. Otherwise, the people of the Commonwealth are effectively excluded from participation in the electoral process by political communication through the electronic media. That exclusion from access to the electronic media extends, during an "election period", to the communication of any "material containing an express or implicit reference to, or comment on": the election (or referendum) concerned; a candidate or group of candidates in that election; any issue before electors in that election; the government, the opposition, or a previous government or opposition of the relevant polity; any member of the relevant Parliament or legislature; any political party or branch or division of a political party [177] . It is true that the prohibitions of Pt3D apply only in respect of television and radio and only during an "election period" in relation to an election to which Pt3D applies. Nonetheless, the interference with the freedom of political communication of the people of the Commonwealth is a very substantial one. The material before the Court indicates that political communication by television advertising is seen by many, and possibly all, persons experienced in political matters as the most effective, if not the most informative or intelligent, means of political communication during an election period [178] . Material placed before the Court by the plaintiff State of New South Wales illustrates that, in a closely settled metropolitan area such as Sydney, the periods in which freedom of political communication would be affected by the provisions of Pt3D would be likely to be very frequent indeed. In any event, the period preceding an election is obviously the time at which political communications by persons who are not candidates or political parties are likely to be most important and effective. It is also true that the provisions of Pt3D are only applicable in relation to an election to the Parliament of the Commonwealth or a State or the legislature of a Territory if regulations in respect of the grant of free time have been made with respect to that election [179] . For the purposes of examining the validity of the legislation, however, it must be assumed that the power to make such regulations will be exercised and that the regulations, once made, will not be disallowed. In any event, the fact that the Commonwealth government is effectively empowered, by making or declining to make regulations, to determine on an ad hoc basis whether the prohibitions imposed by Pt3D are not or (subject to disallowance) are applicable to a particular Commonwealth, State or Territory election scarcely serves to make the relevant legislative provisions more compatible with the standard of a democratic society.
It is in the context provided by the abovementioned aspects of Pt3D that one must answer the question whether the purported interference with the freedom of political communication can be justified as being in the public interest for the reason that it is either conducive to the overall availability of the effective means of such communications or does not go beyond what is reasonably necessary for the preservation of an ordered and democratic society or for the protection or vindication of the legitimate claims of individuals to live peacefully and with dignity within such a society. When considered in that context, that question must be answered in the negative. Freedom of political communication is implicit in, and of fundamental importance to, the effective working of the doctrine of representative government which is embodied in our Constitution. That freedom of communication extends not only to communications by representatives and potential representatives to the people whom they represent. It extends also to communications from the represented to the representatives and between the represented. In effectively prohibiting all political communications by advertisement on the electronic media other than those by actual or potential representatives and their political parties, Pt3D of the Act distorts the freedom of political communication which underlies representative government and denies to the represented the opportunity of participating in the political debate by way of what is commonly seen as the most effective means of political communication.
It was not submitted that the prohibitions imposed by Pt3D could be justified on the ground that they were conducive to the overall availability of the effective means of political communication in a democratic society. In a context where, subject to the abovementioned limited exceptions and qualifications, Pt3D effectively excludes everyone during an "election period" from political communication through the medium of commercial radio and everyone except political parties and candidates from political communication through the medium of television, it is not surprising that no such submission was made.
As we followed the argument, the main basis on which it was sought to justify the prohibitions and restrictions was that they reduced the pressures for massive spending by political parties and thereby reduced the incentives for corruption among those involved in political processes. The elimination of corruption in the political processes is, of course, of great importance in the public interest. The argument that to achieve the postulated objectives it is necessary effectively to exclude the people of the Commonwealth, including legitimate special interest groups, from political communication on the electronic media during an election period unless they be political parties or candidates seems to us, however, quite unconvincing. Nor, in our view, is it to the point to say that the cost of time, at least on television, is so high that private individuals would not seek to communicate by political advertisement on that medium in any event. For one thing, the cost of radio time, especially country radio, is not nearly so high. For another, individuals may legitimately come together, in employee, industry or other special interest groups, to procure political communication by way of advertisement on television and radio. In any event, the fact that the number of groups or individuals who might wish to express their political views in a particular way is limited, does not suffice to justify a law suppressing the freedom of communication in that particular way. There is, perhaps, greater force in an argument that the high cost of television and radio advertisements is such that the prohibition of political advertisements is necessary to create a "level playing field" or to ensure some balance in the presentation of different points of view. That argument may support some form of control of spending on, or some degree of regulation of the use of, political communication. It may, for example, arguably support a total blackout of political advertisements in or on the media on election day. It does not, however, suffice to establish the justification of what is, from the point of view of those excluded from the free time system, an effective ban on political communication through two of the most effective means of such communication during the times when such communication is likely to be most significant and effective. In that regard, it must be remembered that a prohibition is no less antagonistic to and inconsistent with the freedom of political communication which is implicit in the Constitution's doctrine of representative government simply because the Parliament or those in government genuinely apprehend that some persons or groups may make more, or the more effective, use of the freedom than others involved in political processes.
It follows that the regime of prohibitions contained in Pt3D of the Act is one which it is beyond the legislative powers of the Commonwealth Parliament to impose. Notwithstanding the express provision of s95(2) of the Act that "the several provisions of [Pt3D] should operate to the extent to which they are capable of validly operating", it is impossible to sever the provisions of Pt3D providing for the availability of free time (including free time for policy launches) from those imposing the prohibitions upon political advertising in relation to those elections since it is clear that it was the legislative intent that the scheme for free time would operate only in the context of the prohibitions. Nor is it possible to save the validity of the provisions of Pt3D dealing with political advertisements on behalf of a government or governmental authority by any process of severance or reading down since it is plain that those provisions constitute part of, and were intended only to operate in, the wider regime of a general ban on political advertisements. Accordingly, the whole of Pt3D of the Act is invalid. It is unnecessary to consider the plaintiffs' submissions based on s92 of the Constitution and the requirement, in s51(xxxi) of the Constitution, of "just terms". Nor is it necessary to consider the submission that, in their purported application to State and Local Government elections and authorities, the provisions of Pt3D are inconsistent with the federal system of the Constitution in that they single out the States, their instrumentalities and agencies for discriminatory burdens and impermissibly interfere with their functioning.
It should be mentioned that it was not submitted, on behalf of the Commonwealth, that the provisions of Pt3D, to the extent that they related to a Territory election, were within the legislative power conferred by s122 of the Constitution. Presumably, the reason for that was that, in a context where both of the internal Territories have been granted self-government, it is unlikely that the provisions of Pt3D of the Act were, in so far as they purportedly apply to a Territory election, enacted as a law for the government of a Territory pursuant to s122. In any event, we are not presently persuaded that s122's power to make laws "for the government of any territory surrendered by any State" is immune from the implications to be discerned in the Constitution as a whole, including the implication of freedom of political communication. Certainly, the reasoning which led the Court in Teori Tau v The Commonwealth [180] to hold that s122 was not confined by the implication that the "federal" legislative powers conferred by s51 do not include a power to make laws for the acquisition of property without just terms, is inapplicable in relation to an implication drawn from the Constitution as a whole. That question was not, however, explored in the course of the argument in the present case and it is unnecessary to reach any firm conclusion in relation to it.
In the first matter, the demurrer should be overruled. In the second matter, the first paragraph of the demurrer of the Commonwealth should be overruled.