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: Dawson J)
Australian Capital Television Pty Ltd; The State of New South Wales v
The Commonwealth of Australia [No. 2]
Judges:
Mason CJ
Brennan
Deane, Toohey
DawsonGaudron
McHugh JJ
Judgment date: 17-19 March 1992, 30 September 1992
Judgment by:
Dawson J
In these two sets of proceedings, which come before the Court upon demurrer to the plaintiffs' statements of claim, the plaintiffs seek to establish that certain sections of the Broadcasting Act 1942 (Cth) ("the Act"), which were introduced by the Political Broadcasts and Political Disclosures Act 1991 (Cth), are invalid.
The sections are contained in Pt3D of the Act which is headed "Political Broadcasts". Division 2 of Pt3D (s95A to s95E) prohibits the broadcasting by radio or television of certain types of matter during an election period in relation to a referendum or an election period in relation to an election to the Commonwealth Parliament, a State Parliament, the legislature of a Territory or a local government authority. An election period is defined in s4(1) of the Act so as to commence, generally speaking, on the day on which the polling day for an election is announced or the day on which writs for the election are issued, whichever happens first, and to end at the close of the poll. An election period is also fixed in relation to a referendum for the alteration of the Constitution.
S95B prohibits a broadcaster during an election period in relation to an election to the Commonwealth Parliament or a referendum from broadcasting (i) any matter (other than exempt matter) for or on behalf of the government, or a government authority, of the Commonwealth, (ii) a political advertisement for or on behalf of a government, or a government authority, of a State or Territory, or (iii) subject to Divs 3 and 4, a political advertisement for or on behalf of a person other than a government or government authority or on the broadcaster's own behalf. "Political advertisement" is defined as meaning an advertisement that contains political matter. "Political matter" is defined to mean matter intended or likely to affect voting in the election or referendum concerned or matter containing prescribed material. "Prescribed material" is defined to mean material containing an express or implicit reference to, or comment on, any of the following: (i) the election or referendum concerned, (ii) a candidate or group of candidates in that election, (iii) an issue submitted or otherwise before electors in that election, (iv) the government, the opposition, or a previous government or opposition, of the Commonwealth, (v) a member of the Parliament of the Commonwealth, (vi) a political party, or a branch or division of a political party. S95C and s95D make similar provision in relation to State, Territory and local government elections. "Exempt matter" is defined in s4(1) to include such things as matter directly relating to warnings of impending natural disasters, matter relating to the machinery of an election, and advertisements of goods and services offered for sale by or on behalf of a government or a government authority provided that such advertisements do not contain a political reference. "Political reference" is defined in terms which broadly correspond with the definition of prescribed material.
S95A provides that nothing in Pt3D prevents a broadcaster from broadcasting certain matters, including an item of news or current affairs, a comment on any such item and a talkback radio program.
Division 3 of Pt3D (s95F to s95R) provides for the grant of free time in respect of elections other than by-elections and elections to local government authorities on a radio broadcast by the Australian Broadcasting Corporation or on a television broadcast. In particular s95Q obliges a broadcaster to make election broadcasts free of charge during an election period for or on behalf of any political party, person or group to whom free time is granted by the Australian Broadcasting Tribunal in accordance with regulations made in respect of the election.
Under s95G, a broadcast made on behalf of a political party, a candidate or a group in relation to an election is taken to be an election broadcast only if it is by a candidate and conforms to certain conditions which include the absence of dramatic enactment or impersonation and a maximum length of two minutes in the case of a television broadcast and one minute in the case of a radio broadcast.
The total free time available in respect of an election is to be worked out in accordance with regulations made under the Act. Under s95H, the Broadcasting Tribunal must grant ninety per cent of the total free time available in respect of an election to those political parties that were represented by one or more members in the relevant Parliament or legislature before the election and that are contesting the election with at least the prescribed number of candidates. This amount of free time is to be apportioned by the Broadcasting Tribunal among the political parties that meet these criteria in accordance with the regulations. The regulations must, so far as is practicable, give effect to the principle that the amount of free time granted to each party should bear the same proportion to the ninety per cent of the total 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 of the political parties qualified to receive a grant of free time or their candidates at that last election.
A political party, other than a political party to which s95H applies, may apply for a grant of free time in relation to an election and, if the Broadcasting Tribunal is satisfied that the party has endorsed one or more candidates to contest the election, it may, subject to the regulations, grant the party a period of free time determined in accordance with the regulations: s95K, s95M(1). A person or a group of persons may also apply for a grant of free time in relation to an election and, if the Broadcasting Tribunal is satisfied that the person, or each of the persons, is a candidate in the election, it may grant the person or group a period of free time in accordance with the regulations: s95K, s95M(2).
Special provision is made for the grant of free time in relation to Senate elections by s95L. If, on receipt of an application by a person for a grant of free time in relation to a Senate election, the Broadcasting Tribunal is satisfied that the person is a candidate in the election, was a member of the Senate immediately before the end of the last sittings of the Senate held before the election and is not a member of a political party to whom a grant of free time has been made under s95H, then the Broadcasting Tribunal must grant the person a period of free time. The period to be granted under s95L is a period determined by the Broadcasting Tribunal in accordance with the regulations, being a period equal to not less than five per cent of the total free time available in respect of the election nor more than ten per cent of that total free time. If the Broadcasting Tribunal is required under s95L to grant a period of free time to two or more persons, it must divide the period between them in accordance with the regulations.
Under s95P, the Broadcasting Tribunal must, in accordance with the regulations, divide each period of free time granted by it into units of free time and allocate those units of free time to broadcasters. Under s95Q, the broadcaster to whom such units of free time are allocated must make those units available for use in making one or more election broadcasts during the election period for the election on behalf of the political party, person or group to whom the time is granted. These units of time must be used in accordance with the provisions of s95Q, the regulations and any guidelines determined by the Broadcasting Tribunal. There is an appeal to the Federal Court from the refusal of an application for the grant of free time to a political party, person or group of persons: s95R.
The Act contemplates that regulations made for the purposes of Pt3D in relation to the calculation of the total free time available in respect of an election and the allocation of that time will be made from time to time with respect to particular elections: s95J.
Division 4 of Pt3D, which consists of s95S, provides that a broadcaster may broadcast the policy launch of a political party that meets certain criteria once during the election period in relation to an election to the Commonwealth or a State Parliament or the legislature of a Territory. If the policy launch of one political party is broadcast, the broadcaster must give a reasonable opportunity to every other political party that meets those criteria for the broadcast of their policy launches. The broadcast of a policy launch under s95S must be made free of charge and must not last longer than thirty minutes. S95S does not prevent the broadcasting of an excerpt of reasonable length from a political party's policy launch as part of a news report or current affairs program even if the policy launch has been previously broadcast under that section.
In the first of the two actions each of the plaintiffs is the holder of a commercial television licence pursuant to the provisions of the Act and engages in commercial television broadcasting within the service area of its licence. Two of the plaintiffs have licence service areas which extend over State borders and three of the plaintiffs have licence service areas which encompass the Australian Capital Territory and part of southern New South Wales. The plaintiffs contend that certain provisions of Pt3D of the Act are invalid by reason of the contravention of three guarantees to be found in the Constitution. The first is the express guarantee of freedom of intercourse in s92. The second is said to be implied and to guarantee freedom of access to, participation in and criticism of, federal and State institutions amounting to a freedom of communication in relation to the political and electoral processes. The third is also said to be implied and to guarantee freedom of communication arising from the common citizenship of the Australian people.
It is convenient to turn first to those guarantees which are said to arise by implication. Whenever the question of implication is raised in relation to the Constitution it is as well to bear in mind the nature of the instrument and the source from which it derives its authority. The Constitution is contained in an Act of the Imperial Parliament: the Commonwealth of Australia Constitution Act (63 and 64 Vict. c.12). Notwithstanding that this Act was preceded by the agreement of the people of New South Wales, Victoria, South Australia, Queensland and Tasmania "to unite in one indissoluble Federal Commonwealth", the legal foundation of the Constitution is the Act itself which was passed and came into force in accordance with antecedent law. And the Constitution is itself a law declared by the Imperial Parliament to be "binding on the courts, judges, and people of every State and of every part of the Commonwealth" [181] . It does not purport to obtain its force from any power residing in the people to constitute a government, nor does it involve any notion of the delegation of power by the people such as forms part of American constitutional doctrine. The words in the United States Constitution "We the People of the United States ... do ordain and establish this Constitution for the United States of America" find no counterpart in the Australian Constitution; indeed, such words would entirely belie the manner of its foundation. No doubt it may be said as an abstract proposition of political theory that the Constitution ultimately depends for its continuing validity upon the acceptance of the people, but the same may be said of any form of government which is not arbitrary. The legal foundation of the Australian Constitution is an exercise of sovereign power by the Imperial Parliament. The significance of this in the interpretation of the Constitution is that the Constitution is to be construed as a law passed pursuant to the legislative power to do so. If implications are to be drawn, they must appear from the terms of the instrument itself and not from extrinsic circumstances. Thus in Queensland Electricity Commission v The Commonwealth Brennan J observed [182] : "The Constitution summoned the Federation into existence and maintains it in being. Any implication affecting the specific powers granted by the Constitution must be drawn from the Constitution itself. It is impermissible to construe the terms of the Constitution by importing an implication from extrinsic sources when there is no federation save that created by the express terms of the Constitution itself."
That passage reflects what was said earlier by the majority in the Engineers' Case in rejecting a mode of interpretation said to be adopted in previous cases [183] : "It is an interpretation of the Constitution depending on an implication which is formed on a vague, individual conception of the spirit of the compact, which is not the result of interpreting any specific language to be quoted, nor referable to any recognised principle of the common law of the Constitution, and which, when stated, is rebuttable by an intention of exclusion equally not referable to any language of the instrument or acknowledged common law constitutional principle, but arrived at by the Court on the opinions of Judges as to hopes and expectations respecting vague external conditions."
I have previously observed [184] that the Australian Constitution, with few exceptions and in contrast with its American model, does not seek to establish personal liberty by constitutional restrictions upon the exercise of governmental power. The choice was deliberate and based upon a faith in the democratic process to protect Australian citizens against unwarranted incursions upon the freedoms which they enjoy [185] . This was recognised by the majority in the Engineers' Case in the following passage [186] : "[T]he extravagant use of the granted powers in the actual working of the Constitution is a matter to be guarded against by the constituencies and not by the Courts. When the people of Australia, to use the words of the Constitution itself, 'united in a Federal Commonwealth,' they took power to control by ordinary constitutional means any attempt on the part of the national Parliament to misuse its powers. If it be conceivable that the representatives of the people of Australia as a whole would ever proceed to use their national powers to injure the people of Australia considered sectionally, it is certainly within the power of the people themselves to resent and reverse what may be done. No protection of this Court in such a case is necessary or proper."
Thus the Australian Constitution, unlike the Constitution of the United States, does little to confer upon individuals by way of positive rights those basic freedoms which exist in a free and democratic society. They exist, not because they are provided for, but in the absence of any curtailment of them. Freedom of speech, for example, which is guaranteed in the United States by the First Amendment to the Constitution, is a concept which finds no expression in our Constitution, notwithstanding that it is as much the foundation of a free society here as it is there. The right to freedom of speech exists here because there is nothing to prevent its exercise and because governments recognise that if they attempt to limit it, save in accepted areas such as defamation or sedition, they must do so at their peril. Not only that, but courts recognise the importance of the basic immunities and require the clearest expression of intention before construing legislation in such a way as to interfere with them [187] . The fact, however, remains that in this country the guarantee of fundamental freedoms does not lie in any constitutional mandate but in the capacity of a democratic society to preserve for itself its own shared values.
As I have said, the interpretation of the Australian Constitution is the interpretation of a statute of the Imperial Parliament. But, as Windeyer J pointed out in the Payroll Tax Case [188] , that does not mean that it is not a statute of a special kind. Windeyer J quoted the words of Higgins J in the Brewery Labels Case [189] - words whose vitality he regarded as not diminished by their having been said in the course of a dissenting judgment: "although we are to interpret the words of the Constitution on the same principles of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting - to remember that it is a Constitution, a mechanism under which laws are to be made, and not a mere Act which declares what the law is to be".
The Commonwealth, as defendant, seeks to support the impugned legislation by reference both to the power under s51(v) of the Constitution to make laws with respect to postal, telegraphic, telephonic, and other like services and to the power to make laws with respect to Commonwealth elections under s10, s29, s31, s51(xxxvi) and s51(xxxix) of the Constitution. S10, s29 and s31 are sections making provision in relation to elections "until the Parliament otherwise provides". The actual legislative power in relation to the matters referred to in those sections is found in s51(xxxvi) under which the Parliament has power to make laws with respect to matters in respect of which the Constitution makes provision until the Parliament otherwise provides. S51(xxxix) includes, of course, the power to make laws with respect to matters incidental to the execution of any power vested by the Constitution in the Parliament. Thus, whether the subject matter be broadcasting or elections, one is drawn back to s51.
It will be apparent from what I have already said that, in my view, there is no warrant in the Constitution for the implication of any guarantee of freedom of communication which operates to confer rights upon individuals or to limit the legislative power of the Commonwealth. It may be remarked in passing that even if a guarantee limiting Commonwealth legislative power were to exist by implication, it could have only a limited effect upon States in the exercise of their concurrent legislative powers. In expressing the view which I do, I do not mean to suggest that the legislative powers of the Commonwealth under s51 may not be limited by implications drawn from other provisions of the Constitution or from the terms of the Constitution as a whole. The powers conferred by s51 are expressed to be "subject to this Constitution" and that expression encompasses implied limitations as well as those which are express. There is, for example, the implication drawn from the federal structure of the Constitution that prevents the Commonwealth from legislating in a way that discriminates against the States by imposing special burdens or disabilities upon them or in a way which curtails their capacity to exercise for themselves their constitutional functions [190] . S1 of the Constitution provides that the legislative power of the Commonwealth shall be vested in a Federal Parliament consisting of the Queen, a Senate and a House of Representatives.
S7 provides that the Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate. S24 provides that the House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and that the number of such members shall be, as nearly as practicable, twice the number of the senators. There is to be seen in these provisions the principle of representative democracy in a form involving direct popular election [191] . In addition to representative democracy there is also written into the Constitution the principle of responsible government [192] . It is true that no attempt was made to spell out what responsible government entails - that was felt to be an impossible task - but there is sufficient to make it readily apparent that the system adopted was that of responsible government, that is, the system by which the executive is responsible to the legislature and, through it, to the electorate. That has never been doubted. In the Engineers' Case [193] the principle of responsible government was described as pervading the Constitution [194] . And in the Boilermakers' Case [195] it was referred to as "the central feature of the Australian constitutional system".
But much is left to the Parliament concerning the details of the electoral system to be employed in achieving representative democracy. For example, the Constitution does not guarantee universal adult suffrage [196] . And, subject to the Constitution, the method of electing members of Parliament and the determination of electoral divisions also rest with the Parliament [197] .
In Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth [198] Murphy J expressed the view that the provisions in the Constitution for the election of the Parliament require freedom of movement, speech and other communication, not only between the States, but in and between every part of the Commonwealth. He said that the proper operation of the system of representative government required the same freedoms between elections. These freedoms he described as "not absolute, but nearly so", so that they may not be restricted by the Parliament or State Parliaments except for compelling reasons. He repeated these views subsequently [199] . In Miller v TCN Channel Nine Pty Ltd he said [200] : "The Constitution also contains implied guarantees of freedom of speech and other communications and freedom of movement not only between the States and the States and the Territories but in and between every part of the Commonwealth. Such freedoms are fundamental to a democratic society. They are necessary for the proper operation of the system of representative government at the federal level."
The implication of a guarantee of freedom of communication which Murphy J asserted was rejected by other members of this Court in Miller v TCN Channel Nine Pty Ltd. It was, they held, inconsistent with the express guarantee of freedom of intercourse given by s92, upon the view that the express guarantee extends beyond discriminatory fiscal burdens. Gibbs CJ said [201] : "S92 leaves no room for an implication of the kind suggested." Mason J said [202] : "It is sufficient to say that I cannot find any basis for implying a new s92A into the Constitution." Brennan J said [203] : "The freedom of interstate communication rests not upon an implied guarantee but upon the express terms of s92". And I said [204] : "There can, of course, be no room for [such an] implication in the face of express provision [i.e. s92]."
But it is clear that Murphy J based the implication which he asserted, not upon the text of the Constitution, but upon "the nature of our society" [205] . In doing so, he failed, in my view, to recognise the true character of the Australian Constitution which, as I have endeavoured to explain, limits the implications which can be drawn to those which appear from the terms of the instrument itself. Indeed, those responsible for the drafting of the Constitution saw constitutional guarantees of freedoms as exhibiting a distrust of the democratic process. They preferred to place their trust in Parliament to preserve the nature of our society and regarded as undemocratic guarantees which fettered its powers. Their model in this respect was, not the United States Constitution, but the British Parliament, the supremacy of which was by then settled constitutional doctrine. Not only that, but the heresy of importing into the Constitution, by way of implication, preconceptions having their origin outside the Constitution has been exposed and decisively rejected in the Engineers' Case. The nature of the society or, more precisely and accurately, the nature of the federation which the Constitution established, is to be found within its four corners and not elsewhere. To say as much is not for one moment to express disagreement with the view expressed by Murphy J that freedom of movement and freedom of communication are indispensable to any free society. It is merely to differ as to the institutions in which the founding fathers placed their faith for the protection of those freedoms.
Having said that, it must nevertheless be recognised that the Constitution provides for a Parliament the members of which are to be directly chosen by the people - in the case of the Senate by the people of the respective States and in the case of the House of Representatives by the people of the Commonwealth. Thus the Constitution provides for a choice and that must mean a true choice. It may be said - at all events in the context of an election - that a choice is not a true choice when it is made without an appreciation of the available alternatives or, at least, without an opportunity to gain an appreciation of the available alternatives. As Windeyer J observed in Australian Consolidated Press Ltd v Uren [206] : "[f]reedom 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". Perhaps the freedom is one which must extend beyond the election time to the period between elections, but that is something which it is unnecessary to consider in this case. It is enough to recognise, as this Court did in Evans v Crichton-Browne [207] , the importance of ensuring that freedom of speech is not unduly restricted during an election period. Thus an election in which the electors are denied access to the information necessary for the exercise of a true choice is not the kind of election envisaged by the Constitution. Legislation which would have the effect of denying access to that information by the electors would therefore be incompatible with the Constitution.
As I have said, the legislative powers conferred on the Parliament by s51 are conferred "subject to this Constitution". The legislation in question in this case is reliant upon s51, whether it be viewed as legislation with respect to postal, telegraphic, telephonic, and other like services (para(v)) or as legislation with respect to electoral matters in respect of which the Constitution makes provision for the Parliament to provide otherwise (para(xxxvi)).
The question, therefore, is whether the provisions of the Act which were introduced by the Political Broadcasts and Political Disclosures Act are incompatible with those sections of the Constitution which provide for the direct choice of members of the Parliament. The question is not whether the legislation ought be regarded as desirable or undesirable in the interests of free speech or even of representative democracy. As Stephen J pointed out in Attorney-General (Cth); Ex rel. McKinlay v The Commonwealth [208] : "The principle of representative democracy does indeed predicate the enfranchisement of electors, the existence of an electoral system capable of giving effect to their selection of representatives and the bestowal of legislative functions upon the representatives thus selected. However the particular quality and character of the content of each one of these three ingredients of representative democracy, and there may well be others, is not fixed and precise."
And it is for Parliament, within the limits prescribed by the Constitution, to provide the form of representative democracy which we are to have and in so doing it may adopt measures about which there may be a considerable variation of opinion. For example, the qualifications of electors are to be provided for by the Parliament under s8 and s30 and may amount to something less than universal adult suffrage [209] . Today anything less than universal adult suffrage would be politically unacceptable, but at federation it was clearly envisaged. Indeed, until Parliament otherwise provided, the position was to be as it was in the States and, at federation, only South Australia had universal adult suffrage.
Broadly speaking, the legislation in question does two things: first, it prohibits the broadcasting by radio or television during an election period of advertisements containing political matter and, secondly, it requires the provision of free time on radio or television for the use of certain political parties and candidates.
The second reading speech of the Minister introducing the Political Broadcasts and Political Disclosures Bill in the House of Representatives [210] (a bill that did not, at that stage, include the free time provisions that are now part of the Act) indicates that the object of the legislation in prohibiting political advertisements was not to withhold information or to stifle discussion, but to reduce the burden otherwise imposed upon political parties of raising large sums of money in order to wage their election campaigns by use of the electronic media. The Minister pointed out that the prohibition was directed at the single greatest factor in campaign costs which was the cost of buying time on radio and television - particularly television. He expressed the view that the exorbitant cost of broadcast advertising precluded most of the community and all but the major political parties and large corporate interests from paid access to the airwaves. He referred to the fact that the mounting costs of campaign advertising made political parties increasingly vulnerable to attempts by substantial donors to exert influence. He emphasised a duty on the part of the representatives of the people in a democratic society to ensure that they serve all members of that society equally, free of corruption and undue influence.
It is apparent that the matters about which the Minister expressed concern are not confined to this country. A report by the Senate Select Committee on Political Broadcasts and Political Disclosures dated November 1991 reveals that a significant number of democratic countries impose restrictions upon political advertising in the electronic media and provide for the allocation of free time to political parties [211] . The object of the prohibition of political advertising was, therefore, to enhance rather than impair the democratic process. In any event, it must be remembered, as is noted in the second reading speech, that television advertising (which is of far greater significance than radio advertising) leads to the packaging of information into thirty or even fifteen second messages concerned with image rather than content [212] . Of course, upon the assumption that political advertising imparts information which is capable of assisting in the making of an informed choice in an election, the prohibition clearly denies some information to electors. But the provision of information in the press and by other means is unimpeded. Even the electronic media have an undiminished capacity to present news reports, current affairs programs, editorial comment and talkback radio programs all relating to political issues. Moreover, the legislation does not prevent the broadcasting of the policy launch of a political party during an election period. And the prohibition of political advertising is, of course, only during an election period.
In these circumstances, I am unable to conclude that the prohibition of political advertising which the legislation in question effects is incompatible with the constitutional requirement that an elector be able to make an informed choice in an election. That being so, it is not for the Court to express any view whether the legislation goes far enough or further than is necessary to achieve its object. These are matters for Parliament and not the Court [213] . Turning to those sections which govern the grant of free election broadcasting time, it may be observed at once that the provision of free time aids rather than hinders those to whom it is granted in the imparting of information. Any complaint necessarily concerns the manner in which the total free time required to be made available in relation to an election is divided amongst the existing major parties, the smaller parties, groups and individual candidates.
In those countries which provide for compulsory free broadcasting time, it has become apparent that anything more than a relative equality in the allocation of that free time is unattainable. And the relativities to be taken into account in the process are far from fixed or certain. Moreover, the means which may be adopted are various, including legislation, arrangements made through a parliamentary committee and the exercise of authority by a broadcasting tribunal (either with or without the agreement of the political parties). In the end, there will be a necessary compromise of some kind. And most countries which allocate broadcasting time have adopted a system which gives a clear advantage to the parties represented in the outgoing parliament [214] . Obviously it would be possible to contend that those parties or candidates who are new to the political process require more, not less, time in which to put their policies. But the practicalities are such that the real contest in an election organised upon party lines is ordinarily between the major established parties and, given that it is not possible to allocate equal free time to all candidates, the concentration of time must be in favour of those parties. To require some free time to be granted to new parties or to independent candidates, whatever the proportion, represents an advance upon a system in which no free time is allocated at all and in which, practically speaking, only the major parties can afford to purchase broadcasting time. New parties and independent candidates have always had available to them the means, other than broadcasting, of advancing their policies. These are the means which they have hitherto used and they remain available.
Admittedly, with the prohibition of political advertising and the restriction of election broadcasts to those made pursuant to a grant of free time to political parties or candidates, there is no room for other persons to broadcast their views during an election period. But the restriction is limited to an election period and the alternative of allowing other persons or organisations to purchase broadcasting time for political advertisements or election broadcasts may be to divert the expenditure of large sums by political parties or candidates to those persons or organisations and so subvert the object of the legislation. As I have said, there are alternative means available to those who are not political parties or candidates that receive a grant of free time to advance their causes during an election period.
Where legislation can do no more than adopt a relative approach, it is inevitable that it will not be beyond criticism. It is, for example, not immediately apparent why independent sitting candidates for the Senate should be eligible for a grant of up to the whole of the remaining free time after ninety per cent of the total free time has been granted to the political parties that qualify under s95H. But there is a discretion reposed in the Broadcasting Tribunal, an independent body, in this, as in other respects, and the time actually granted might only be five per cent of the remaining free time leaving the balance to be granted under s95M to political parties that do not qualify for a grant of free time under s95H and to other persons or groups of persons who are candidates in the relevant election.
In my view, it cannot be said that those sections of the Act which provide for the grant of free election broadcasting time are inconsistent with the requirement of the Constitution that there be a direct choice of members of Parliament by the people. Serious difficulties have been experienced in the provision of broadcasting time in accordance with capacity to pay. Free access to the airwaves by all who wish to put a point of view during an election period is an impracticality and, if there is to be free time, there must be some method by which it is to be granted. The method adopted by the Act is, I think, supportable as a means of allocating available free time in order to assist in informing electors about election issues. Whether or not it be regarded as ideal, it is within the ambit of parliamentary power to determine the circumstances in which the electoral choice is to be made.
In placing reliance upon s92 the plaintiffs contend that the intercourse, which the section requires to be "absolutely free", embraces all forms of movement and communication and includes radio and television broadcasting. There is no real contest about that. As Dixon J observed in Bank of NSW v The Commonwealth of the composite expression "trade commerce and intercourse" [215] : "It covers intangibles as well as the movement of goods and persons. The supply of gas and the transmission of electric current may be considered only an obvious extension of the movement of physical goods. But it covers communication. The telegraph, the telephone, the wireless may be the means employed. It includes broadcasting and, no doubt, it will take in television. In principle there is no reason to exclude visual signals."
Intercourse may, of course, be at one and the same time trade and commerce. I should have thought it clear that commercial broadcasting constitutes trade or commerce as well as intercourse. But intercourse extends beyond trade and commerce [216] and so requires a separate consideration of the freedom which is accorded to it. Thus it was said in Cole v Whitfield [217] that "there is no reason in logic or commonsense for insisting on a strict correspondence between the freedom guaranteed to interstate trade and commerce and that guaranteed to interstate intercourse".
In Cole v Whitfield the focus of attention was upon the freedom which s92 guarantees interstate trade and commerce. It was recognised in that case that the words "absolutely free" cannot be read literally because, if that were to be done, the section would constitute a guarantee of anarchy. Once any notion of absolute freedom in a literal sense is rejected it is necessary to ask the further question: absolutely free from what? And the answer was given in Cole v Whitfield that, in relation to interstate trade and commerce, "absolutely free" means free from discriminatory burdens of a protectionist kind.
That answer does not greatly assist in identifying the freedom which s92 guarantees to intercourse. Nevertheless the same approach can and should be adopted. The intercourse with which the section is concerned is confined to intercourse among the States. That is to say, it is confined to movement or activity across State borders. As Isaacs J said of s92 in R v Smithers; Ex parte Benson [218] , "it is an absolute prohibition on the Commonwealth and States alike to regard State borders as in themselves possible barriers to intercourse between Australians". In so far as it includes the passage of persons and things, tangible or intangible, to and fro across State borders, intercourse obviously extends beyond the realm of protectionism. Nevertheless, it is still necessary, as with freedom of trade and commerce, to ask in relation to freedom of intercourse: free from what? From the beginning it has been recognised that, as with the freedom of trade and commerce, the freedom of intercourse guaranteed by s92 is not freedom from all restriction; it is not a prescription for anarchy. Thus in Cole v Whitfield this Court denied that "every form of intercourse must be left without any restriction or regulation in order to satisfy the guarantee of freedom" [219] . The Court went on to give the following example [220] : "although personal movement across a border cannot, generally speaking, be impeded, it is legitimate to restrict a pedestrian's use of a highway for the purpose of his crossing or to authorise the arrest of a fugitive offender from one State at the moment of his departure into another State".
In The Commonwealth v Bank of NSW [221] the Privy Council saw no impairment of the freedom of intercourse guaranteed by s92 in "excluding from passage across the frontier of a State creatures or things calculated to injure its citizens". Ex parte Nelson [No. 1] [222] is an example. That case was concerned with a prohibition, contained in s154 of the Stock Act 1901 (NSW), against the importation or introduction of any stock into New South Wales from any other State or place in which there was reason to believe that any infectious or contagious disease in stock existed. It was held by Knox CJ, Gavan Duffy and Starke JJ (Isaacs, Higgins and Powers JJ dissenting) that the prohibition did not violate s92. They said [223] that it would be a strange result if s92 "stripped the States of power to protect their citizens from the dangers of infectious and contagious diseases, however such dangers may arise".
By way of contrast, in Tasmania v Victoria [224] the Court was concerned with the validity of a proclamation which recited the opinion of the Governor in Council that the introduction of potatoes from Tasmania into Victoria was likely to introduce disease into Victoria and thereupon prohibited the importation into Victoria of Tasmanian potatoes. The proclamation was held to offend s92. Gavan Duffy CJ, Evatt and McTiernan JJ said [225] : "The effect of the proclamation is nothing less than to terminate for an indefinite period that species of trade among the States which consists in the marketing by Tasmanians of their potatoes within the State of Victoria. Further, such marketing is absolutely prohibited, however free from disease particular consignments or all consignments of potatoes may be and however the marketing operations are conducted. The sole justification for this absolute prohibition is the opinion of the Executive Council that 'potatoes from Tasmania' are likely to introduce a disease. In the present case it is neither necessary nor desirable to mark out the precise degree to which a State may lawfully protect its citizens against the introduction of disease, but, certainly, the relation between the introduction of potatoes from Tasmania into the State of Victoria and the spread of any disease in the latter is, on the face of the Act and the proclamation, far too remote and attenuated to warrant the absolute prohibition imposed."
See also R v Connare; Ex parte Wawn [226] ; Chapman v Suttie [227] ; Mansell v Beck [228] . The permissible restrictions upon intercourse were, before Cole v Whitfield, regarded as exceptions to the absolute freedom guaranteed by s92. But since that decision it may more accurately be said that the freedom of intercourse guaranteed by s92 does not extend to freedom from those restrictions.
That still leaves the question of the extent of the freedom of intercourse under s92. The answer, I think, is not to be found so much in the history and context of s92, as is the case with freedom of interstate trade and commerce, but in the terms of s92 itself. The freedom of intercourse guaranteed is, as I have said, freedom of intercourse among the States, that is, freedom of movement across the borders. As Isaacs J said in the passage which I have quoted from R v Smithers; Ex parte Benson, under s92 State borders are not of themselves to be barriers to movement within Australia. That does not, of course, mean that movement across State borders is immune from regulation. To adopt the mode of reasoning in Cole v Whitfield, laws which have the object of restricting movement across State borders will offend s92. The laws in question in Gratwick v Johnson [229] and R v Smithers; Ex parte Benson were laws of that kind. Dixon J said of the Order considered in Gratwick v Johnson, which forbade interstate travel by rail or commercial passenger vehicle without a permit, that [230] : "The Order is directed to the intending passenger. It does not profess to be concerned with priorities of travel upon transport facilities under excessive demand and it is certainly not confined to that matter. It does not, at all events so far as appears from its text or by evidence, depend in any degree for its practical operation or administration upon the movement of troops, munitions, war supplies, or any like considerations. It is simply based on the 'inter-Stateness' of the journeys it assumes to control".
And the Influx of Criminals Prevention Act 1903 (NSW) considered in R v Smithers; Ex parte Benson simply prohibited certain persons who could not be categorised in any relevant way from crossing the border into New South Wales.
But if the real object of a law is not the restriction of movement across State borders, the fact that such restriction occurs incidentally will not offend s92, provided that the means adopted to achieve the object are neither inappropriate nor disproportionate. I have elsewhere expressed the view that, where the validity of a law depends upon its connection with a particular subject-matter, the test of reasonable proportionality by itself may be misleading [231] . But that is not so where, as is the case with s92, the purpose or object of the law is not merely a relevant factor but the crucial determinant of validity. Tasmania v Victoria was a case in which the real object of the legislation may have been, not to restrict the movement of potatoes across the State border, but to prevent the introduction of diseased potatoes into Victoria. Even upon that basis the law was invalid as offending s92 because it restricted the movement of all potatoes, both diseased and sound, across the border with the result that the means adopted to stop the spread of disease in potatoes were disproportionate or inappropriate to achieve its real object. Thus it may be seen that there are laws which regulate activities on either side of a State border or even the act of crossing the border (e.g. traffic regulations) which may be said to impede interstate intercourse, but which do not deny the freedom guaranteed by s92. This is because that freedom is freedom from laws the object of which is the restriction of movement across State borders or, in cases where the means adopted are inappropriate or disproportionate to achieve a legitimate object, freedom from laws which have the effect of restricting movement across State borders.
Although Ex parte Nelson [No. 1] was decided long before Cole v Whitfield, the judgment of Knox CJ, Gavan Duffy and Starke JJ displays a degree of prescience, having regard to the approach now warranted by the later authority. Their Honours said, after the passage which I have already quoted [232] : "In a measure it must be conceded that the Stock Act of New South Wales does regulate the free flow of inter-State trade and commerce in stock. If there is reason to believe that any infectious or contagious disease in stock exists, the stock may be stopped at the borders of New South Wales, and if it enters it may in some cases be destroyed. The seeming conflict may be resolved, in our opinion, by considering the true nature and character of the legislation in the particular instance under discussion. The grounds and design of the legislation, and the primary matter dealt with, its object and scope, must always be determined in order to ascertain the class of subject to which it really belongs; and any merely incidental effect it may have over other matters does not alter the character of the law ... In truth, the object and scope of the provisions [of the Stock Act] are to protect the large flocks and herds of New South Wales against contagious and infectious diseases, such as tick and Texas fever: looked at in their true light, they are aids to and not restrictions upon the freedom of inter-State commerce."
In one sense, the legislation in question in this case does not restrict the movement of persons or things, tangible or intangible, across State borders. The sending of the signals which constitute the act of broadcasting - the means of communication - across State borders remains unimpeded. The situation may be contrasted with that which arose in Miller v TCN Channel Nine Pty Ltd [233] where the question was whether the prohibition went to the transmitting or receiving of messages by wireless telegraphy across the State border. But even if the restriction of the subject-matter which may be broadcast is to be seen as constituting a restriction upon the signals which may be transmitted interstate - a prohibition upon the sending of signals conveying the offending subject-matter - then nevertheless I do not think that Pt3D of the Act denies the freedom of intercourse which is guaranteed by s92. The object of the legislation is clearly not to restrict broadcasting across State borders. The legislation does not erect State borders as barriers in themselves to the broadcasting of the material which is forbidden. The object of the legislation is to reduce the expenditure of funds upon the electronic media during election campaigns or campaigns for referendums. It is merely coincidental that, because of the prohibition of the broadcasting of certain material, those licensees who are otherwise able to do so are prohibited from broadcasting the material across State borders. And it was not suggested, nor in my view could it be, that the means adopted to achieve the object of the legislation are disproportionate or inappropriate. They are in fact a conventional means of doing what the legislation sets out to do.
The plaintiffs also submit that the prohibition against broadcasting certain matter during an election period contained in s95B, s95C and s95D and the obligation imposed upon a broadcaster by s95Q to provide free time constitute the acquisition of property otherwise than on just terms contrary to s51(xxxi) of the Constitution. S51(xxxi) provides that the Parliament may make laws with respect to "[t]he acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws". It is established that s51(xxxi) must be treated "as abstracting from other heads of power (including the incidental power) all content which would otherwise have enabled the compulsory acquisition of property, and as subjecting the power with respect to the acquisition to an obligation to provide just terms" [234] . Thus the paragraph ensures that whenever property is compulsorily acquired pursuant to a law of the Commonwealth just terms must be provided [235] .
Further, s51(xxxi) extends to laws for the acquisition of property by persons other than the Commonwealth or an agency of the Commonwealth [236] . The term "property" in s51(xxxi) is not to be narrowly construed [237] . As Dixon J said in Bank of NSW v The Commonwealth [238] : "I take Minister of State for the Army v Dalziel to mean that s51(xxxi) is not to be confined pedantically to the taking of title by the Commonwealth to some specific estate or interest in land recognised at law or in equity and to some specific form of property in a chattel or chose in action similarly recognised, but that it extends to innominate and anomalous interests and includes the assumption and indefinite continuance of exclusive possession and control for the purposes of the Commonwealth of any subject of property. S51(xxxi) serves a double purpose. It provides the Commonwealth Parliament with a legislative power of acquiring property: at the same time as a condition upon the exercise of the power it provides the individual or the State affected with a protection against governmental interferences with his proprietary rights without just recompense. In both aspects consistency with the principles upon which constitutional provisions are interpreted and applied demands that the paragraph should be given as full and flexible an operation as will cover the objects it was designed to effect."
But there must nevertheless be the acquisition of something of a proprietary nature before s51(xxxi) can have any application.
S6A(1) of the Act prohibits, without reasonable excuse, the operation of a radiocommunication transmitter for the purpose of transmission to the general public of radio programs or television programs except as authorised by or under the Act. The relevant licensing provisions are contained in Pt3B of the Act. Under s81 the Broadcasting Tribunal may grant or renew a licence upon such conditions as it determines and, in determining those conditions, the Broadcasting Tribunal is required to have regard to the need for the commercial viability of the broadcasting services provided in the area served or to be served under the licence. Under s83(1)(a) an applicant for the grant of a licence is required to give a written undertaking to the Broadcasting Tribunal that the applicant will, if granted the licence, comply with the conditions of the licence. Under s88 the Broadcasting Tribunal may suspend or revoke a licence where it appears to the Broadcasting Tribunal that it is advisable in the public interest to do so having regard to certain specified matters, one of which is failure to comply with a condition of the licence. Under s89A the holder of a licence may transfer the licence to another person, but only with the consent of the Broadcasting Tribunal. And s129(1) provides that a licence is subject to the provisions of the Act and that those provisions are deemed to be incorporated in the licence as terms and conditions of the licence.
It may, I think, be assumed that a licence such as is held by each of the plaintiffs under the Act confers upon the holder a right in the nature of property [239] . But that does not carry the plaintiffs far enough to sustain them in their argument. While the licence may be in the nature of property, what is done under the licence is not. What the holder of a licence does under his licence is to broadcast and, in my view, it cannot be said that by requiring a licence holder to cease broadcasting certain material or to broadcast certain material free of charge there is an acquisition of property on the part of any person. The licence which may be regarded as property remains. All that occurs is that certain services which the licence holder is able to provide for reward cannot be provided or must be provided without reward. The plaintiffs stress that by being able to broadcast advertisements they are able to earn substantial sums of money. No doubt that is reflected in the value of the licence. But the service which a licence holder provides in the form of the broadcasting of advertisements cannot, in my view, be regarded as property however valuable the reward for that service. Conversely a broadcaster does not surrender anything in the nature of property (although he does lose revenue that would otherwise be earned on the provision of the service) when he is compelled to broadcast material free of charge. Broadcasting is the provision of a service, not property. Even if the purchase of the service can be regarded as the purchase of broadcasting time, that involves no acquisition of property of any kind. Nor does it carry the matter any further to regard s95Q as conferring a right upon those who may take advantage of the free time which the section requires a licence holder to make available in an election period. If it be a right, it is personal rather than proprietary because it is of a temporary nature and may not be assigned [240] . The plaintiff in the second action also submits that s95B(3), s95C(4) and s95D(3) of the Act are invalid because they single out the States and their authorities for discriminatory treatment in that they prohibit a broadcaster from broadcasting a political advertisement for or on behalf of the government, or a government authority, of a State during the election periods specified in those sections. As I have indicated, it is established that a Commonwealth law will be invalid where it singles out or discriminates against the States in the sense that it imposes a special burden or disability upon them [241] . An exception to this principle is where the power pursuant to which the law is passed is one which, having regard to its content, context and subject-matter, can be said to be a power that is intended to be exercised in such a discriminatory way [242] . Neither the power to make laws with respect to broadcasting conferred by s51(v) of the Constitution nor the power to make laws in relation to elections conferred by s10, s29, s31, s51(xxxvi) and s51(xxxix) of the Constitution is a power of this kind. As Gibbs CJ pointed out in Queensland Electricity Commission v The Commonwealth [243] : "The laws forbidden by this principle are those which discriminate against all the States or any one of them by subjecting them or it to a burden or disability which is not imposed on persons generally, a law whose very object is to restrict, burden or control an activity of the States or of one of them."
Thus, for a Commonwealth law to be invalid under this principle, the law must isolate the States from the general law applicable to others [244] . What is prohibited is "an adverse discriminatory operation of a law, not an adverse operation of a general law" [245] . In my view, the sections which are attacked by the plaintiff in the second action do not have this discriminatory effect. The prohibition on broadcasts of political advertisements during an election period applies generally and not only to broadcasts for or on behalf of the government, or a government authority, of a State. Indeed, s95B(4), s95C(5) and s95D(4) expressly prohibit broadcasts of political advertisements for or on behalf of a person other than a government or government authority and broadcasts of political advertisements on the broadcaster's own behalf. The exception to this latter prohibition on broadcasting is where a broadcast is an election broadcast that is made on behalf of an organisation or person who is granted a period of free time pursuant to the provisions of Div 3 or a policy launch that is broadcast pursuant to the provisions of Div 4. The only organisations or persons who can be granted a period of free time pursuant to the provisions of Div 3 are political parties and candidates, or groups of candidates, in the relevant election [246] . And the only policy launches that may be broadcast pursuant to the provisions of Div 4 are the policy launches of political parties that meet certain criteria [247] . The States are not singled out by the prohibition which is imposed on the broadcast of political advertisements because the prohibition extends to organisations or bodies that are not political parties or candidates, or groups of candidates, in an election that meet the conditions specified in Divs 3 and 4. And the definition of "political advertisement" is not such as to confine the prohibition to advertisements that might be expected to be broadcast for or on behalf of a State as opposed to advertisements that might be expected to be broadcast for or on behalf of other persons or bodies that have an interest in influencing voters or in commenting upon issues in an election. Moreover, a prohibition similar to that imposed in relation to the broadcast of political advertisements for or on behalf of a government, or government authority, of a State is also imposed in relation to the broadcast of political advertisements for or on behalf of a government, or government authority, of a Territory or for or on behalf of the government, or a government authority, of the Commonwealth [248] . Of course, the very nature of the States is such that they cannot be political parties or candidates in an election and this explains why s95B(3), s95C(4) and s95D(3) are not expressed to be "[s]ubject to Divisions 3 and 4" whereas s95B(4), s95C(5) and s95D(4) are so expressed.
A further exception to the prohibition on the broadcasting of political advertisements during election periods is contained in s95A(3) of the Act which provides that nothing in Pt3D: "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".
But, again, the fact that political advertisements may be broadcast for or on behalf of charitable organisations does not mean that Pt3D or any of its provisions discriminate against the States in such a way as to render Pt3D or any of those provisions invalid. The exception in relation to charitable organisations is limited and its effect is not to result in the States being singled out as the only entities prohibited from broadcasting political advertisements during an election period.
The plaintiff in the second action also argues that s95D(3) and s95D(4) are invalid because they impede the capacity of the States to function and the processes by which the legislative and executive powers of the States are exercised, thereby threatening the structural integrity of the States. Even conceding the undoubted importance of the electoral process in the government of the States, s95D(3) and s95D(4) cannot be said to interfere with this process in such a way as to "threaten or endanger the continued functioning of the [States] as ... essential constituent [elements] in the federal system" [249] or to "unduly impair the capacity of [the States] to perform [their] constitutional functions" [250] .
As I have said, the general prohibition on broadcasting political advertisements which is imposed by the provisions of Div 2 is limited in duration (namely, to election periods); does not prevent the broadcasting of news reports, current affairs programs, editorial comment and talkback radio programs relating to political issues; and leaves other media available for the dissemination of information that would otherwise be contained in political advertisements. Further, political parties, candidates and groups of candidates are able to have election broadcasts broadcast for them or on their behalf during election periods provided that they are granted periods of free time pursuant to Div 3 and political parties may have their policy launches broadcast during these periods pursuant to Div 4.
For similar reasons the argument of the plaintiff in the second action that s95B(3), s95C(4) and s95D(3) are invalid because they substantially interfere with the capacity of State governments and their authorities to protect themselves and to communicate information vital to their interests and proper functioning must be rejected. It may be that the scope of the definitions of "political advertisement", "political matter" and "prescribed material" results in the prohibition on broadcasting political advertisements having a broad application. It may also be that the effect of the legislation is that the prohibition applies for a considerable part of any given year. But to say as much is not to show that the relevant sections infringe any express or implied limitation contained in the Constitution. Nor, in my view, do s95D(3) and s95D(4) infringe either s106 or s107 of the Constitution. State Constitutions are unimpaired by the legislation and the powers of the State Parliaments continue subject only to the fact that the provisions in question prevail under s109 over any inconsistent State legislation.
For these reasons I would uphold the whole of the demurrer in the first matter and the first paragraph of the demurrer in the second matter.