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

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(Decision by: Mason CJ)

Australian Capital Television Pty Ltd; The State of New South Wales v
The Commonwealth of Australia [No. 2]

Court:

Judges:
Mason CJBrennan
Deane, Toohey
Dawson
Gaudron
McHugh JJ

Judgment date: 17-19 March 1992, 30 September 1992

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Decision by:
Mason CJ

In each action the Commonwealth has demurred to the statement of claimof the plaintiff or plaintiffs. In each action declarations are sought that Pt3D of the Broadcasting Act 1942 (Cth) ("the Act") is invalid. In the first action, the plaintiffs, who are commercial television broadcasters holding commercial television licences and licence warrants under the Act, seek in the alternative a declaration that s95D and s95B, s95C, s95E, s95Q and s95S of the Act in their application to a broadcaster who is a licensee are invalid. In the second action, the State of New South Wales seeks a second declaration, namely, that Pt3D of the Act does not apply to Parliamentary by-elections.

Pt3D of the Act was introduced into the Act by the Political Broadcasts and Political Disclosures Act 1991 (Cth). As its heading "Political Broadcasts" signifies, the Part is designed to establish a regulatory regime governing the broadcasting on television and radio of political advertisements and other matter. There are a number of elements in the regulatory scheme.

The principal elements are: (1) the sweeping prohibitions ^[1] , subject to certain exceptions, including the broadcasting of news and current affairs items and talkback radio programmes ^[2] , of the broadcasting during an election period ^[3] of relevant material in relation to a Commonwealth Parliamentary election or referendum or an election to a legislature or local government authority of a Territory or a State; (2) the imposition on broadcasters of an obligation to make available free of charge units of "free time" for election broadcasts to a political party, person or group to whom the Australian Broadcasting Tribunal ("the Tribunal") has granted such free time ^[4] ; (3) the prescription of criteria according to which the Tribunal will grant free time for election broadcasts to a political party, person or group ^[5] ; (4) the provision of a right of appeal to the Federal Court of Australia against a decision by the Tribunal refusing an application for the grant of free time ^[6] ; (5) the permitting and regulation of the broadcast of a "policy launch" by a political party that meets certain prescribed criteria ^[7] . Pt3D does not apply in relation to an election to the Parliament of the Commonwealth or of a State or in relation to an election to the legislature of a Territory until the making of regulations for the purposes of s95H, which provides for the automatic grant of free time to certain political parties, that relate to that election ^[8] . PROHIBITIONS AGAINST BROADCASTERS The comprehensive reach of the prohibitions imposed on broadcasters is sufficiently illustrated by the provisions of s95B of the Act which deal with broadcasting in relation to Commonwealth Parliamentary elections and referenda. First, a broadcaster is prohibited from broadcasting "any matter (other than exempt matter)" during an election period "for or on behalf of the government, or a government authority, of the Commonwealth" ^[9] . The expression "exempt matter" is defined narrowly ^[10] so as to denote a range of matters, announcements and advertisements appropriate to the business of government, having no connection, or no significant connection, with political advertisements or political information. Secondly, a broadcaster is prohibited from broadcasting during such an election period "a political advertisement" for or on behalf of a government, or government authority, of a Territory ^[11] , or for or on behalf of a government, or a government authority, of a State ^[12] .Thirdly, subject to Divs 3 and 4 ^[13] , a broadcaster is prohibited during such an election period from broadcasting a "political advertisement" for or on behalf of a person other than a government, or a government authority, or on his or her own behalf ^[14] . The geographical area of operation of the prohibitions is limited in the case of a by-election ^[15] . The expression "political advertisement" is defined to mean an advertisement that contains "political matter" ^[16] . That term is in turn defined to mean ^[17] : "(a) matter intended or likely to affect voting in the election or referendum concerned; or (b) matter containing prescribed material; but does not mean exempt matter".

"Prescribed material" is defined to mean ^[18] : "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".

"Exempt matter" bears the same narrow meaning described above.

S95A qualifies the reach of the prohibitions affecting broadcasting in relation to Commonwealth elections, referenda and Territory and State elections. Subs(1) to subs(4) provide: "(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. "

The expression "public health matter" is defined in a way that is designed to prevent subs(4) from becoming a source of authority for the broadcasting of political advocacy or criticism.

In the case of an election to the legislature or local government authority of a Territory or a State, prohibitions similar to those applicable in the case of Commonwealth Parliamentary elections apply to a broadcaster ^[19] .

In the case of a Territory election, there is an additional prohibition against the broadcasting of a political advertisement for or on behalf of the government, or a government authority, of another Territory ^[20] . ALLOCATION OF FREE ELECTION BROADCASTING TIME The Tribunal is required to grant a period of free time to each political party that ^[21] : "(a) was represented by one or more members in the relevant Parliament or legislature immediately before the end of the last sittings of that Parliament or legislature held before the election; and (b) is contesting the election with at least the prescribed number of candidates".

The total free time to be granted to political parties pursuant to that requirement is 90 per cent of the total time in respect of that election and the Tribunal must grant each of those parties such part of the total free time period as it determines in accordance with the regulations ^[22] . So far as is practicable, the regulations should 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 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 mentioned in s95H(1) or their candidates at that last election ^[23] . The requirement does not apply to by-elections or local government elections ^[24] . In cases not provided for in s95H, the Tribunal is required to consider applications for the grant of free time. Subject to being satisfied that an applicant is a candidate for a Senate election and was a member of the Senate immediately before the end of the last sittings of the Senate before the election and is not a member of a party to whom a grant of time has been made under s95H, the Tribunal must grant the applicant free time ^[25] .

Again, the period granted to a person must accord with the regulations and must, in total, be not less than 5 per cent and not more than 10 per cent of the total time in respect of the election ^[26] . If the Tribunal is required to grant free time to two or more applicants under s95L, the time must be divided equally between or among them ^[27] . Otherwise, the Tribunal has a discretion to grant free time to political parties and independent candidates on an application determined in accordance with the regulations, provided that the Tribunal is satisfied of certain matters ^[28] . The Tribunal is required to divide each period of free time granted into units of free time in conformity with the regulations ^[29] and allocate units of free time accordingly to broadcasters ^[30] . A broadcaster to whom units of free time are so allocated must make them available for use in making one or more election broadcasts during the relevant election period on behalf of the political party, person or group to whom the time is granted ^[31] and must do so free of charge ^[32] . The broadcaster must use the units in accordance with the regulations and guidelines determined by the Tribunal ^[33] . The broadcaster must make, during the election period, in the case of a Commonwealth election, at least three election broadcasts by television on each day on which the broadcaster is required to use units of free time; in the case of a Territory election, the prescribed number of election broadcasts by television on each such day; and, in the case of a State election, at least two election broadcasts by television on each such day ^[34] . A licensee who is required to make an election broadcast is entitled to such additional broadcasting time for the purpose of broadcasting other material as is determined in accordance with the regulations ^[35] .

The expression "election broadcast" is defined in such a way as to prescribe the format of the broadcast, that is, amongst other things, it must be the broadcast of an advertisement consisting of words spoken by a single speaker (without dramatic enactment or impersonation) and take the form of a "talking head" presentation lasting two minutes in the case of a television broadcast and one minute in the case of a radio broadcast ^[36] . BROADCAST OF POLICY LAUNCHES A broadcaster is permitted to broadcast a party's policy launch, provided it meets certain prescribed requirements, once only during the relevant election period ^[37] for not more than thirty minutes and free of charge ^[38] . The broadcaster who so broadcasts a party policy launch must give a reasonable opportunity to every other political party that satisfies prescribed requirements for the broadcasting of that party's policy launch ^[39] . CONTRAVENTIONS OF PT3D The Tribunal is obliged to take all reasonable steps to consider and deal immediately with a complaint or information about a contravention of s95B, s95C, s95D, s95E or s95S ^[40] . On application by the Tribunal, the Federal Court may make such orders as it thinks necessary or expedient for the purpose of preventing, or preventing a repetition of, a contravention of any of those five section ^[41] . EFFECT OF PT3D The effect of Pt3D, especially s95B, s95C and s95D, is, as the plaintiffs submit, to exclude the use of radio and television during election periods as a medium of political campaigning and even as a medium for the dissemination of political information, comment and argument and as a forum of discussion except in so far as (a) s95A permits the broadcasting of news and current affairs items and talkback radio programmes; (b) Div 3 permits free election broadcasts; and (c) Div 4 permits the broadcasting of policy launches.

Not much turns on the extent of the protection given by s95A(1). It is designed to ensure that the prohibitions which, generally speaking, strike at the broadcasting of matter which is likely to affect voting at an election and matter which includes an implied or explicit reference to an issue in an election do not inhibit the broadcasting of news and current affairs items, talkback radio programmes and announcements affecting matters of specific public interest. But the protection elevates news, current affairs and talkback radio programmes to a position of very considerable importance during an election period. If Pt3D were valid, talkback and current affairs programmes would unquestionably become, if they are not already, the principal vehicle for political discussion during an election period. And the prohibitions may make it more difficult for a political party, person or group to make an effective response to information or comment contained in such a programme which is adverse to the interests of that party, person or group.

The consequence is that Pt3D severely impairs the freedoms previously enjoyed by citizens to discuss public and political affairs and to criticise federal institutions. Pt3D impairs those freedoms by restricting the broadcasters' freedom to broadcast and by restricting the access of political parties, groups, candidates and persons generally to express views with respect to public and political affairs on radio and television.

The Commonwealth's response is that the evident and principal purpose of Pt3D is to safeguard the integrity of the political system by reducing, if not eliminating, pressure on political parties and candidates to raise substantial sums of money in order to engage in political campaigning on television and radio, a pressure which renders them vulnerable to corruption and to undue influence by those who donate to political campaign funds. The high costs of broadcast advertising have the effect, so it is said, of exposing political parties and candidates for election to attempts by substantial donors to exert influence. The escalating costs of political campaigning, particularly the costs of advertising on the electronic media, thus increase the risk that corruption and undue influence may affect the integrity of the political process. In his second reading speech when introducing the legislation in the House of Representatives ^[42] , the Minister referred to these problems and stated that the Bill sought to address them by the measures now contained in Pt3D and by requiring and regulating public disclosure of the election funding of political parties. The Minister made the point that the effect of Pt3D was to cleanse the electoral process by reducing the possibility that it would be corrupted by reason of the financial vulnerability of the political parties and their need to defray the very high costs of political campaigning. It is plain that the legislation would achieve this result by prohibiting political advertising in election periods and replacing it with a regulated system of election broadcasts free of charge, including the broadcast of policy launches. The Minister referred to the Report of the Joint Standing Committee on Electoral Matters, Who pays the piper calls the tune ^[43] , in connection with the Bill.

The Minister went on to say ^[44] : "The proposed ban is aimed directly at the single greatest factor in campaign costs. The exorbitant cost of broadcast advertising precludes the majority of the community and all but the major political parties and large corporate interests from paid access to the airwaves. The Government carefully considered the implications of the proposals on the right to freedom of speech, both as it is generally accepted and specifically under international law. In respect of the latter, article 19(2) of the International Covenant on Civil and Political Rights, to which Australia is a party, requires parties to guarantee the right of freedom of expression. This right is not absolute. Article 19(3) of the covenant provides that the right may be limited in the interests of public order. The prohibition of the broadcasting of political advertising is directed squarely at preventing potential corruption and undue influence of the political process. The Government is satisfied that the proposals are a necessary and proportionate response to this threat and do not constitute a breach of our international obligations."

The Minister referred to two further benefits which Pt3D would bring about. The prohibitions against broadcasting political advertising would terminate the privileged status of the few in the community who could afford to pay the high costs of such advertising and "place all in the community on an equal footing so far as the use of the public airwaves is concerned" ^[45] . The Minister also asserted that the prohibitions would put an end to the "trivialising" of political debate which resulted from the transmission of very brief political advertisements ^[46] .

The Senate referred the Bill to a Select Committee for inquiry and report. The report of the Select Committee ^[47] points out that the high cost of political campaigning on television and radio has been acknowledged in other countries. Indeed, restrictions on political advertising have been introduced in a number of countries in order to deal with these problems ^[48] . Thus, of nineteen countries examined in the Report of the Joint Standing Committee on Electoral Matters, Who pays the piper calls the tune ^[49] only five - Australia, Canada, New Zealand, Germany and the United States - allow paid advertisements on electronic media ^[50] . But paid political advertising on the electronic media is not permitted in the United Kingdom, France, Norway, Sweden, the Netherlands, Denmark (during an election period), Austria (during an election period), Israel (during an election period) and Japan (during an election period). Free time is allocated in an election period for political advertising on the electronic media in Canada, France, New Zealand, Denmark, Austria, Israel, Japan, Germany and the Netherlands.

The measures taken overseas evidence the existence of the problems identified in the report of the Senate Select Committee. Those measures also indicate that in some jurisdictions prohibitions on political advertising on electronic media and the provision of free time for election broadcasts have been adopted with a view to solving these problems.

But, and this is the critical point, the overseas experience does not refute the proposition that Pt3D impairs freedom of discussion of public and political affairs and freedom to criticise federal institutions in the respects previously mentioned. Thus, the Commonwealth's claim that Pt3D introduces and maintains a "level playing field" cannot be supported if that claim is to be understood as offering equality of access to all in relation to television and radio. It is obvious that the provisions of Div 3 regulating the allocation of free time give preferential treatment to political parties represented in the preceding Parliament or legislature which are contesting the relevant election with at least the prescribed number of candidates. Their entitlement amounts to 90 per cent of the total free time. Others must of necessity rely on the exercise of discretion by the Tribunal. As among the political parties, the principle of allocation to be applied will tend to favour the party or parties in government because it gives weight to the first preference voting in the preceding election. Furthermore, a senator who seeks re-election is given preferential treatment over a candidate, not being a senator, who stands for election to the Senate. The former, but not the latter, is entitled to a grant of free time. The latter must rely on an exercise of discretion by the Tribunal and the Act makes no attempt to enunciate the criteria according to which that discretion is to be exercised. The provisions of Pt3D manifestly favour the status quo. More than that, the provisions regulating the allocation of free time allow no scope for participation in the election campaign by persons who are not candidates or by groups who are not putting forward candidates for election. Employers' organisations, trade unions, manufacturers' and farmers' organisations, social welfare groups and societies generally are excluded from participation otherwise than through the means protected by s95A. The consequence is that freedom of speech or expression on electronic media in relation to public affairs and the political process is severely restricted by a regulatory regime which evidently favours the established political parties and their candidates without securing compensating advantages or benefits for others who wish to participate in the electoral process or in the political debate which is an integral part of that process.

THE ISSUES The plaintiffs in the first action contend that s95B, s95C and s95D constitute a contravention of: (1) an implied guarantee of 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; (2) the express guarantee of freedom of intercourse in s92 of the Constitution; and (3) an implied guarantee of freedom of communication arising from the common citizenship of the Australian people.

They also contend that the prohibitions in s95D concerning State elections are beyond legislative power or are contrary to the implied prohibition against Commonwealth interference with the capacity of a State to function in its legislative, executive and judicial capacities. The plaintiffs further argue that the provisions of Pt3D requiring the broadcasting of election broadcasts free of charge, particularly s95Q, amount to an acquisition of property otherwise than on just terms and the provisions are invalid on this ground. In the second action, the plaintiff presents similar arguments, its principal argument being that interference with State elections is a substantial interference with the functioning of constituent organs of the State and their structural integrity.

The plaintiffs do not suggest that Pt3D would lie outside the scope of the legislative powers of the Parliament of the Commonwealth were it not for the implied and express prohibitions and guarantees on which they rely. The plaintiffs accept, correctly in my view, that the legislative powers conferred by s51(v) with respect to "postal, telegraphic, telephonic and other like services" and the various legislative powers conferred on the Parliament by the Constitution with respect to federal elections and the electoral process would support the Act but for the arguments raised in these actions ^[51] . But, on the view which I take of these actions, Pt3D contravenes an implied guarantee of freedom of communication, at least in relation to public and political discussion. I shall therefore confine my discussion of the issues to that aspect of the actions, without embarking upon the other issues which were argued.

CONSTITUTIONAL IMPLICATIONS

Sir Owen Dixon noted that, following the decision in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd ("the Engineers' Case") ^[52] , the notion seemed to gain currency that no implications could be made in interpreting the Constitution ^[53] . The Engineers' Case certainly did not support such a Draconian and unthinking approach to constitutional interpretation ^[54] . Sir Owen expressed his own opposition to that approach when he said ^[55] : "Such a method of construction would defeat the intention of any instrument, but of all instruments a written constitution seems the last to which it could be applied."

Later, he was to say ^[56] : "We should avoid pedantic and narrow constructions in dealing with an instrument of government and I do not see why we should be fearful about making implications."

Subsequently, Windeyer J, in a passage in which he referred to that statement, remarked ^[57] "implications have a place in the interpretation of the Constitution" and "our avowed task is simply the revealing or uncovering of implications that are already there".

In conformity with this approach, the Court has drawn implications from the federal structure prohibiting the Commonwealth from exercising its legislative and executive powers in such a way as to impose upon a State some special disability or burden unless the relevant power authorised that imposition or in such a way as to threaten the continued existence of a State as an independent entity or its capacity to function as such ^[58] . But there is no reason to limit the process of constitutional implication to that particular source.

Of course, any implication must be securely based. Thus, it has been said that "ordinary principles of construction are applied so as to discover IN THE ACTUAL TERMS of the instrument their expressed or necessarily implied meaning" (emphasis added). ^[59]

This statement is too restrictive because, if taken literally, it would deny the very basis - the federal nature of the Constitution - from which the Court has implied restrictions on Commonwealth and State legislative powers ^[60] . That the statement is too restrictive is evident from the remarks of Dixon J in Melbourne Corporation v The Commonwealth ^[61] where his Honour stated that "the efficacy of the system logically demands" the restriction which has been implied and that "an intention of this sort is ... to be plainly seen in the very frame of the Constitution".

It may not be right to say that no implication will be made unless it is necessary. In cases where the implication is sought to be derived from the actual terms of the Constitution it may be sufficient that the relevant intention is manifested according to the accepted principles of interpretation. However, where the implication is structural rather than textual it is no doubt correct to say that the term sought to be implied must be logically or practically necessary for the preservation of the integrity of that structure.

It is essential to keep steadily in mind the critical difference between an implication and an unexpressed assumption upon which the framers proceeded in drafting the Constitution ^[62] . The former is a term or concept which inheres in the instrument and as such operates as part of the instrument, whereas an assumption stands outside the instrument. Thus, the founders assumed that the Senate would protect the States but in the result it did not do so. On the other hand, the principle of responsible government - the system of government by which the executive is responsible to the legislature - is not merely an assumption upon which the actual provisions are based; it is an integral element in the Constitution ^[63] . In the words of Isaacs J in The Commonwealth v Kreglinger and Fernau Ltd and Bardsley ^[64] : "It is part of the fabric on which the written words of the Constitution are superimposed."

THE IMPLICATION OF FUNDAMENTAL RIGHTS

The adoption by the framers of the Constitution of the principle of responsible government was perhaps the major reason for their disinclination to incorporate in the Constitution comprehensive guarantees of individual rights ^[65] . They refused to adopt a counterpart to the Fourteenth Amendment to the Constitution of the United States. Sir Owen Dixon said ^[66] : "[they] were not prepared to place fetters upon legislative action, except and in so far as it might be necessary for the purpose of distributing between the States and the central government the full content of legislative power. The history of their country had not taught them the need of provisions directed to control of the legislature itself."

The framers of the Constitution accepted, in accordance with prevailing English thinking, that the citizen's rights were best left to the protection of the common law in association with the doctrine of parliamentary supremacy ^[67] . So it was that Professor Harrison Moore, writing in 1901, was able to say of the Constitution ^[68] : "The great underlying principle is, that the rights of individuals are sufficiently secured by ensuring, as far as possible, to each a share, and an equal share, in political power. "

In the light of this well recognised background, it is difficult, if not impossible, to establish a foundation for the implication of general guarantees of fundamental rights and freedoms. To make such an implication would run counter to the prevailing sentiment of the framers that there was no need to incorporate a comprehensive Bill of Rights in order to protect the rights and freedoms of citizens. That sentiment was one of the unexpressed assumptions on which the Constitution was drafted.

However, the existence of that sentiment when the Constitution was adopted and the influence which it had on the shaping of the Constitution are no answer to the case which the plaintiffs now present. Their case is that a guarantee of freedom of expression in relation to public and political affairs must necessarily be implied from the provision which the Constitution makes for a system of representative government. The plaintiffs say that, because such a freedom is an essential concomitant of representative government, it is necessarily implied in the prescription of that system.

REPRESENTATIVE GOVERNMENT

The Constitution provided for representative government by creating the Parliament, consisting of the Queen, a House of Representatives and a Senate, in which legislative power is vested ^[69] , the members of each House being elected by popular vote, and by vesting the executive power in the Queen and making it exercisable by the Governor-General on the advice of the Federal Executive Council ^[70] , consisting of the Queen's Ministers of State drawn, subject to a minor qualification, from the House of Representatives and the Senate ^[71] . In the case of the Senate, s7 provides that it: "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".

In the case of the House of Representatives, s24 provides that it: "shall be composed of members directly chosen by the people of the Commonwealth". Although s24 contains no reference to voting, s25 makes it clear that "chosen" means "chosen by vote at an election".

In Attorney-General (Cth); Ex rel. McKinlay v The Commonwealth ^[72] , Stephen J discerned in these two provisions the principles of representative democracy (by which he meant that the legislators are directly chosen by the people) and direct popular election. The correctness of his Honour's view is incontestable, notwithstanding that the Constitution does not prescribe universal adult suffrage. Such a suffrage did not exist at that time. Although prescription of the qualifications of electors was left for the ultimate determination of the Parliament ^[73] , the Constitution nonetheless brought into existence a system of representative government in which those who exercise legislative and executive power are directly chosen by the people. The Governor-General, though the repository of executive power, does not personally exercise that power, being bound to act with the advice of the Executive Council ^[74] . The very concept of representative government and representative democracy signifies government by the people through their representatives. Translated into constitutional terms, it denotes that the sovereign power which resides in the people is exercised on their behalf by their representatives. In the case of the Australian Constitution, one obstacle to the acceptance of that view is that the Constitution owes its legal force to its character as a statute of the Imperial Parliament enacted in the exercise of its legal sovereignty; the Constitution was not a supreme law proceeding from the people's inherent authority to constitute a government ^[75] , notwithstanding that it was adopted, subject to minor amendments, by the representatives of the Australian colonies at a Convention and approved by a majority of the electors in each of the colonies at the several referenda. Despite its initial character as a statute of the Imperial Parliament, the Constitution brought into existence a system of representative government for Australia in which the elected representatives exercise sovereign power on behalf of the Australian people. Hence, the prescribed procedure for amendment of the Constitution hinges upon a referendum at which the proposed amendment is approved by a majority of electors and a majority of electors in a majority of the States ^[76] . And, most recently, the Australia Act 1986 (UK) marked the end of the legal sovereignty of the Imperial Parliament and recognised that ultimate sovereignty resided in the Australian people ^[77] . The point is that the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act.

FREEDOM OF COMMUNICATION AS AN INDISPENSABLE ELEMENT IN REPRESENTATIVE GOVERNMENT

Indispensable to that accountability and that responsibility is freedom of communication, at least in relation to public affairs and political discussion. Only by exercising that freedom can the citizen communicate his or her views on the wide range of matters that may call for, or are relevant to, political action or decision. Only by exercising that freedom can the citizen criticise government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives. By these means the elected representatives are equipped to discharge their role so that they may take account of and respond to the will of the people. Communication in the exercise of the freedom is by no means a one-way traffic, for the elected representatives have a responsibility not only to ascertain the views of the electorate but also to explain and account for their decisions and actions in government and to inform the people so that they may make informed judgments on relevant matters. Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives; government would cease to be responsive to the needs and wishes of the people and, in that sense, would cease to be truly representative.

Freedom of communication in relation to public affairs and political discussion cannot be confined to communications between elected representatives and candidates for election on the one hand and the electorate on the other. The efficacy of representative government depends also upon free communication on such matters between all persons, groups and other bodies in the community. That is because individual judgment, whether that of the elector, the representative or the candidate, on so many issues turns upon free public discussion in the media of the views of all interested persons, groups and bodies and on public participation in, and access to, that discussion ^[78] . In truth, in a representative democracy, public participation in political discussion is a central element of the political process.

Archibald Cox made a similar point when he said ^[79] : "Only by uninhibited publication can the flow of information be secured and the people informed concerning men, measures, and the conduct of government ... Only by freedom of speech, of the press, and of association can people build and assert political power, including the power to change the men who govern them. "

The last sentence in the passage just quoted is a striking comment on Professor Harrison Moore's statement that "[t]he great underlying principle" of the Constitution ^[80] was that the rights of individuals were sufficiently secured by ensuring each an equal share in political power. Absent freedom of communication, there would be scant prospect of the exercise of that power.

The fundamental importance, indeed the essentiality, of freedom of communication, including freedom to criticise government action, in the system of modern representative government has been recognised by courts in many jurisdictions. They include Australia ^[81] ,

England ^[82] , the United States ^[83] , Canada ^[84] and the European Court of Human Rights ^[85] . IMPLICATION OF A GUARANTEE OF FREEDOM OF COMMUNICATION ON MATTERS RELEVANT TO PUBLIC AFFAIRS AND POLITICAL DISCUSSION Freedom of communication in the sense just discussed is so indispensable to the efficacy of the system of representative government for which the Constitution makes provision that it is necessarily implied in the making of that provision. Much the same view was taken in Canada under the British North America Act 1867 (Imp.) (30 and 31 Vict. c. 3) which contained no express guarantee of freedom of speech or freedom of communication. The preamble to that Act manifested an intention to bring into existence a Constitution for Canada similar in principle to that of the United Kingdom. From the existence of the preamble, and from the grant of representative government in the form of parliamentary democracy and the dependence of that institution for its efficacy on the exercise of the right of free public discussion, Duff CJ, Cannon and Davis JJ in Re Alberta Legislation concluded that the Parliament of Canada had by necessary implication legislative power to protect that right and that, correspondingly, provincial legislatures lacked power to curtail the right or at any rate so "as substantially to interfere with the working of the parliamentary institutions of Canada" ^[86] . In Switzman v Elbling ^[87] , Abbott J expressed the view that neither federal nor provincial legislatures could abrogate the right, a view which was endorsed by Beetz J (writing for himself and three other Judges) in Re Ontario Public Service Employees' Union and Attorney-General for Ontario ^[88] . In the result, to repeat the words of McIntyre J in Retail, Wholesale and Department Store Union, Local 580 v Dolphin Delivery Ltd ^[89] , it may now be said that: "[p]rior to the adoption of the Charter, freedom of speech and expression had been recognised as an essential feature of Canadian parliamentary democracy."

His Lordship added the comment: "Indeed, this Court may be said to have given it constitutional status." ^[90] It seems that the Supreme Court of Canada has ascertained from the structure of the Constitution granted by the British North America Act and its preamble an implied freedom of speech and expression which may be more extensive as to subject-matter than the implied freedom I have identified so far from my analysis of the Australian Constitution. Whether freedom of communication in relation to public affairs and political discussion is substantially different from an unlimited freedom of communication and, if so, what is the extent of the difference, are questions which were not debated and do not call for decision. What is presently significant is that the implied freedom of speech and expression in Canada is founded on the view that it is indispensable to the efficacious working of Canadian representative parliamentary democracy.

THE INDIVISIBILITY OF FREEDOM OF COMMUNICATION IN RELATION TO PUBLIC AFFAIRS AND POLITICAL DISCUSSION

The concept of freedom to communicate with respect to public affairs and political discussion does not lend itself to subdivision. Public affairs and political discussion are indivisible and cannot be subdivided into compartments that correspond with, or relate to, the various tiers of government in Australia. Unlike the legislative powers of the Commonwealth Parliament, there are no limits to the range of matters that may be relevant to debate in the Commonwealth Parliament or to its workings. The consequence is that the implied freedom of communication extends to all matters of public affairs and political discussion, notwithstanding that a particular matter at a given time might appear to have a primary or immediate connection with the affairs of a State, a local authority or a Territory and little or no connection with Commonwealth affairs. Furthermore, there is a continuing interrelationship between the various tiers of government. To take one example, the Parliament provides funding for the State governments, Territory governments and local governing bodies and enterprises. That continuing inter-relationship makes it inevitable that matters of local concern have the potential to become matters of national concern. That potential is in turn enhanced by the predominant financial power which the Commonwealth Parliament and the Commonwealth government enjoy in the Australian federal system ^[91] . INFRINGEMENT: THE TEST TO BE APPLIED In most jurisdictions in which there is a guarantee of freedom of communication, speech or expression, it has been recognised that the freedom is but one element, though an essential element, in the constitution of "an ordered society" ^[92] or a "society organised under and controlled by law" ^[93] . Hence, the concept of freedom of communication is not an absolute. The guarantee does not postulate that the freedom must always and necessarily prevail over competing interests of the public. Thus, to take an example, Parliament may regulate the conduct of persons with regard to elections so as to prevent intimidation and undue influence, even though that regulation may fetter what otherwise would be free communication ^[94] . And, in the United States, despite the First Amendment, the media is subject to laws of general application ^[95] . A distinction should perhaps be made between restrictions on communication which target ideas or information and those which restrict an activity or mode of communication by which ideas or information are transmitted. In the first class of case, only a compelling justification will warrant the imposition of a burden on free communication by way of restriction and the restriction must be no more than is reasonably necessary to achieve the protection of the competing public interest which is invoked to justify the burden on communication. Generally speaking, it will be extremely difficult to justify restrictions imposed on free communication which operate by reference to the character of the ideas or information. But, even in these cases, it will be necessary to weigh the competing public interests, though ordinarily paramount weight would be given to the public interest in freedom of communication ^[96] . So, in the area of public affairs and political discussion, restrictions of the relevant kind will ordinarily amount to an unacceptable form of political censorship.

On the other hand, restrictions imposed on an activity or mode of communication by which ideas or information are transmitted are more susceptible of justification. The regulation of radio and television broadcasting in the public interest generally involves some restrictions on the flow and dissemination of ideas and information. Whether those restrictions are justified calls for a balancing of the public interest in free communication against the competing public interest which the restriction is designed to serve, and for a determination whether the restriction is reasonably necessary to achieve the competing public interest ^[97] .

If the restriction imposes a burden on free communication that is disproportionate to the attainment of the competing public interest, then the existence of the disproportionate burden indicates that the purpose and effect of the restriction is in fact to impair freedom of communication ^[98] . In weighing the respective interests involved and in assessing the necessity for the restriction imposed, the Court will give weight to the legislative judgment on these issues. But, in the ultimate analysis, it is for the Court to determine whether the constitutional guarantee has been infringed in a given case. And the Court must scrutinise with scrupulous care restrictions affecting free communication in the conduct of elections for political office for it is in that area that the guarantee fulfils its primary purpose ^[99] . IS PT3D VALID? The restrictions imposed in the present case are expressed so as to appear to fall into the second, rather than the first, class of case discussed above. The restrictions are imposed upon television and radio broadcasting. But the law which imposes the restrictions is not one of general application; the law is specifically directed at, and prohibits, the broadcasting, in connection with the electoral process, of matters relating to public affairs and political discussion, including political advertisements. So, in conformity with what I have already said, notwithstanding the legislative judgment that the restrictions are necessary for achieving the ends identified earlier in these reasons, the Court must scrutinise the validity of Pt3D with scrupulous care.

In approaching the respective interests in this case, I am prepared to assume that the purpose of Pt3D is to safeguard the integrity of the political process by reducing pressure on parties and candidates to raise substantial sums of money, thus lessening the risk of corruption and undue influence. I am prepared also to assume that other purposes of Pt3D are to terminate (a) the advantage enjoyed by wealthy persons and groups in gaining access to use of the airwaves; and (b) the "trivialising" of political debate resulting from very brief political advertisements. Moreover, I am prepared to accept that the need to raise substantial funds in order to conduct a campaign for election to political office does generate a risk of corruption and undue influence, that in such a campaign the rich have an advantage over the poor and that brief political advertisements may "trivialise" political debate.

Given the existence of these shortcomings or possible shortcomings in the political process, it may well be that some restrictions on the broadcasting of political advertisements and messages could be justified, notwithstanding that the impact of the restrictions would be to impair freedom of communication to some extent. In other words, a comparison or balancing of the public interest in freedom of communication and the public interest in the integrity of the political process might well justify some burdens on freedom of communication. But it is essential that the competition between the two interests be seen in perspective. The raison d'etre of freedom of communication in relation to public affairs and political discussion is to enhance the political process (which embraces the electoral process and the workings of Parliament), thus making representative government efficacious.

The enhancement of the political process and the integrity of that process are by no means opposing or conflicting interests and that is one reason why the Court should scrutinise very carefully any claim that freedom of communication must be restricted in order to protect the integrity of the political process. Experience has demonstrated on so many occasions in the past that, although freedom of communication may have some detrimental consequences for society, the manifest benefits it brings to an open society generally outweigh the detriments. All too often attempts to restrict the freedom in the name of some imagined necessity have tended to stifle public discussion and criticism of government. The Court should be astute not to accept at face value claims by the legislature and the Executive that freedom of communication will, unless curtailed, bring about corruption and distortion of the political process.

As I pointed out earlier, Pt3D severely restricts freedom of communication in relation to the political process, particularly the electoral process, in such a way as to discriminate against potential participants in that process. The sweeping prohibitions against broadcasting directly exclude potential participants in the electoral process from access to an extremely important mode of communication with the electorate. Actual and potential participants include not only the candidates and established political parties but also the electors, individuals, groups and bodies who wish to present their views to the community. In the case of referenda, or at least some of them, the States would have important interests at stake and would be participants in the process.

It is said that the restrictions leave unimpaired the access of potential participants during an election period to other modes of communication with the electorate. The statement serves only to underscore the magnitude of the deprivation inflicted on those who are excluded from access to the electronic media. They must make do with other modes of communication which do not have the same striking impact in the short span of an election campaign when the electors are consciously making their judgments as to how they will vote.

It is also said that the protection given by s95A to items of news, current affairs and comments on such items, and talkback radio programmes will preserve communication on the electronic media about public and political affairs during election periods. But access on the part of those excluded is not preserved, except possibly at the invitation of the powerful interests which control and conduct the electronic media. Those who are excluded are exposed to the risk that the protection given by s95A may result in the broadcasting of material damaging to the cause or causes they support without their being afforded an opportunity to reply.

The replacement regime, which rests substantially on the provisions relating to the grant of free time, is weighted in favour of the established political parties represented in the legislature immediately before the election and the candidates of those parties; it discriminates against new and independent candidates. By limiting their access to a maximum of 10 per cent of the free time available for allocation, Pt3D denies them meaningful access on a non-discriminatory basis. As for persons, bodies and groups who are not candidates, they are excluded from radio and television broadcasting during election periods. The consequence is that the severe restriction of freedom of communication plainly fails to preserve or enhance fair access to the mode of communication which is the subject of the restriction. The replacement regime, though it reduces the expenses of political campaigning and the risks of trivialisation of political debate, does not introduce a "level playing field". It is discriminatory in the respects already mentioned. In this respect I do not accept that, because absolute equality in the sharing of free time is unattainable, the inequalities inherent in the regime introduced by Pt3D are justified or legitimate.

On this score alone, Pt3D is invalid, apart from the prohibitions on broadcasting matter for or on behalf of the government, or a government authority, of the Commonwealth during the various election periods ^[100] . But it can scarcely be thought, s95(2) notwithstanding, that those prohibitions were intended to operate alone in respect of each election period. Pt3D is therefore invalid in its entirety. Moreover, I regard the presence of s95J as an obstacle to the validity of the Part. In my view, it is impossible to justify the validity of a regime which restricts freedom of communication in relation to the electoral process when the operation of the regime depends upon the making of regulations at the discretion of the Executive government according to unspecified criteria. The existence of the discretion leaves the Executive government at any given time with the option of invoking the Pt3D regime or discarding it; in other words, the government of the day can decide which course suits it best. It is difficult to conceive of a compelling, even of a reasonable, justification for a regime restricting freedom of communication which confers such an advantage on the Executive government.

There being no reasonable justification for the restrictions on freedom of communication imposed by Pt3D, the Part is invalid. In the light of my conclusion as to the indivisibility of freedom of communication in relation to public affairs and political discussion, the prohibitions in connection with all forms of election and referenda must fail. Despite the express intention in s95(2) that the several provisions of the Part should operate to the extent to which they are capable of operating, severance is impossible. The free time provisions in Div 3 and the policy launch provisions in Div 4 cannot operate in isolation from the prohibitions and, in any event, it is the discriminatory effect of the free time provisions that is the principal reason for the invalidity of the regulatory scheme. No attempt was made in argument to sustain the validity of the prohibitions in Div 2 dissociated from the operation of the free time provisions. Nor, for that matter, was any attempt made to support an independent valid operation for the provisions relating to Territory elections.

It is for the foregoing reasons that I participated in the making of the orders announced on 28 August 1992. They were: Matter No. S5 of 1992 Demurrer overruled with costs. Matter No. S6 of 1992 First paragraph of the demurrer of the first defendant overruled with costs.