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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(Judgment by: Gaudron J)

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

Court:

Judges: Mason CJ
Brennan
Deane, Toohey
Dawson

GaudronMcHugh JJ

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

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Judgment by:
Gaudron J

The issue raised by these matters is whether Pt3D of the BroadcastingAct 1942 (Cth) ("the Act") is invalid by reason that it infringes one or more constitutional prohibitions. Pt3D of the Act purports to limit and regulate political advertisements on radio and television. It will later be necessary to refer to its provisions in some detail but, for the moment, it is sufficient to say that Pt3D of the Act operates in relation to Commonwealth elections (s95B), Territory elections (s95C), and State and local government elections (s95D). The constitutional prohibitions which it is said to infringe are implied prohibitions deriving from the democratic and federal nature of the Commonwealth, that contained in s92 and that implicit in s51(xxxi) which authorises laws for the "acquisition of property on just terms".

THE PROCEEDINGS BEFORE THE COURT

The first matter before the Court is an action by Australian Capital Television Pty Ltd and certain other television broadcasters licensed under the Act ("the licensed television broadcasters") against the Commonwealth of Australia seeking a declaration that Pt3D is invalid, alternatively, a declaration that particular provisions of Pt3D are invalid in their application to licensed broadcasters. The second is an action by the State of New South Wales against the Commonwealth and the Australian Broadcasting Tribunal ("the defendants") seeking a declaration that Pt3D is invalid, alternatively, a declaration that it does not apply to parliamentary by-elections. The Commonwealth demurred to the whole of the statement of claim filed on behalf of the licensed television broadcasters. The Commonwealth demurred to the whole of the statement of claim filed on behalf of the State of New South Wales and, additionally, to the claim that Pt3D of the Act does not apply to parliamentary by-elections. The demurrers were heard together.

THE OPERATION OF PT3D OF THE ACT

In general terms, Pt3D of the Act operates to oblige certain broadcasters to provide free election broadcasting time but, otherwise, to ban the broadcasting of political advertisements during elections. It is convenient first to consider the nature and scope of the ban.

The ban is effected by a series of discrete bans with respect to Commonwealth, Territory and State and local government elections imposed by s95B, s95C and s95D of the Act respectively. The bans direct that "[a] broadcaster must not" during the relevant election period broadcast "any matter (other than exempt matter)" for or on behalf of the government or a government authority of the Commonwealth or a Territory (in the case of a ommonwealth election or an election for that Territory) ^[251] , and must not "broadcast a political advertisement" for or on behalf the government of a State holding an election ^[252] , for or on behalf of a government or a government authority of any other Australian political entity ^[253] , for or on behalf of any person other than a government or government authority ^[254] , or on the broadcaster's own behalf ^[255] . By reason of the definition of "broadcaster" ^[256] and "broadcast" ^[257] in s4(1) of the Act, the ban extends to all radio and television broadcasters and broadcasts. And by reason of the definition of "election period" in the same subs ^[258] , the ban applies for the whole of the period of the election concerned, being, in effect, from the calling of the election or, in the case of the Legislative Council of Tasmania or the Legislative Assembly of the Australian Capital Territory, local government elections and some referenda, from thirty-three days prior to polling day until the close of the poll.

The ban is chiefly directed to the broadcasting of political advertisements. Definitions in s95B, s95C and s95D reveal what is meant by a "political advertisement". It is convenient to proceed by reference to the definitions in s95B concerning Commonwealth elections, for they differ from those in s95C and s95D only to the extent that they deal expressly with a referendum and that they proceed by reference to the political organs of the Commonwealth rather than those of a State or Territory.

"Political advertisement" is defined in s95B to mean "an advertisement that contains political matter". "Political matter" is, in turn, defined to mean: "(a) matter intended or likely to affect voting in the election or referendum concerned; or (b) matter containing prescribed material; but does not include exempt matter".

"Prescribed material" is defined to mean: "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" referred to in the definition of "political matter" in s95B ^[259] is defined in s4(1) to include, inter alia, warnings of natural disasters, material relating to procedures and polling times for elections, some advertisements for positions, tenders, goods and services and certain types of announcements. Additionally, s95A relevantly provides that: "(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 ^[260] . (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."Exempt matter" under s4(1) and the broadcasts excepted from the operation of Pt3D under s95A are together referred to as "exempt material".

Special provision is made in the case of by-elections, limiting the ban to an area which covers or overlaps the area in which the by-election is to be held ^[261] . So far as s95B(1) and s95C(1) relate to "any matter (other than exempt matter) [to be broadcast] ... for or on behalf of the government, or a government authority" of the Commonwealth or a Territory in relation to a Commonwealth election or an election for that Territory respectively, those subsections appear to affect a wider range of subject-matter than those dealing with political advertisements. But putting these matters aside, the ban imposed by s95B, s95C and s95D is a blanket ban on the broadcasting of election material, other than exempt material, in relation to all elections for all governments in Australia during the period of the election concerned which, leaving aside those elections for which the election period is specified as thirty-three days, extends from the announcement of the election or, if it be earlier, the issue of the writs until the close of the poll ^[262] .The effect of the ban imposed by s95B, s95C and s95D is, to some extent, mitigated by the provisions of Divs 3 and 4 of Pt3D of the Act. By s95H, s95L and s95M, which are in Div 3, the Australian Broadcasting Tribunal ("the Tribunal") is obliged and empowered, subject to the making of regulations in the case of Commonwealth, State and Territory elections ^[263] , to grant "free time" in relation to an election.

The effect of s95H is that 90% of the total free time in relation to an election is to be divided amongst political parties represented in the parliament or legislature immediately before the election and contesting the lection with at least the prescribed ^[264] number of candidates. The free time is to be divided according to the proportion of first preference votes cast for the candidates of the respective political parties at the last election. It would seem that, in practical terms, 90% of the available time is to be allocated to the major political parties. And subject to special provision in s95L with respect to sitting independent senators ^[265] , the remaining 10% is to be granted to other political parties and independent candidates.

By s95P of the Act the Tribunal must divide the free time granted to political parties and independent candidates into "units of free time" and allocate them to broadcasters in accordance with the regulations. Seemingly, the allocation must also be made on the basis that s95F provides, in subs(1), that nothing in Div 3 is to be treated as requiring or permitting the Special Broadcasting Service or licensees to broadcast an election broadcast by radio and, in subs(2), that the obligation of the Australian Broadcasting Corporation with respect to radio broadcasts is limited to broadcasts on its metropolitan and regional AM networks.

Upon the allocation of "units of free time", s95Q obliges a broadcaster to make election broadcasts free of charge. S95G defines "election broadcast" so as to limit what may be broadcast to advertisements consisting of words spoken by a single speaker who is either a candidate for election or a member of a parliament or of a legislature, accompanied, in the case of television broadcasts, by an image consisting of the speaker's head and shoulders. The definition also limits the duration of advertisements to 2 minutes in the case of television and 1 minute in the case of radio broadcasts. And, as previously noted, the obligation to broadcast an election broadcast by radio is limited by s95F(1) and s95F(2) to broadcasts by the Australian Broadcasting Corporation on its metropolitan and regional AM networks.

The political discussion contemplated by the "free time" provisions of Div 3 is further extended by Div 4 of Pt3D of the Act. By s95S(1) and s95S(2) in Div 4, a broadcaster may, in relation to Commonwealth, State and Territory elections, "broadcast [the] policy launch" of a political party that was represented in the last Parliament or legislature and that has endorsed one or more candidates for the election concerned. The launch may be broadcast once and once only ^[266] during the election period. The broadcast must not last more than thirty minutes and must be free of charge ^[267] . If a broadcaster broadcasts the launch of one political party, a reasonable opportunity must be given to other political parties satisfying the requirements of s95S(3)(a) and s95S(b) ^[268] for the broadcasting of their launches.

The operation of Div 3 with respect to free time must depend, to some extent, on regulations made from time to time under s95J. The only regulations which are presently relevant are those made with respect to elections to State Parliaments and elections to Territory legislatures ^[269] . However, it is clear that no matter how Div 3 operates and with what effect, only political parties and independent candidates will benefit from its provisions. And what may be broadcast on their behalf is circumscribed as to orm and duration. It is also clear that only political parties and candidates endorsed by them can benefit from the broadcasting of a policy launch under Div 4. It is equally clear that, save for exempt material, a broadcaster cannot, during the period of an election, broadcast political matter on behalf of a person or organisation that is not respectively a candidate or a political party with endorsed candidates standing in that election.

POLITICAL DISCOURSE AN IMPLIED FREEDOM

The Constitution cannot be construed in a vacuum ^[270] . As Sir Owen Dixon pointed out in Jesting Pilate, it is the general law which is "the source of the legal conceptions that govern us in determining the effect of the written instrument" ^[271] and, in consequence, "constitutional questions should be considered and resolved in the context of the whole law, of which the common law ... forms not the least essential part." ^[272] And, of course, the common law embraces those constitutional principles which have guided the development of democracy and responsible government in the United Kingdom.

The Constitution provides for an elected Parliament of the Commonwealth, brought together either as the result of a general election ^[273] or as the result of separate Senate and House of Representative elections, with the "senators for each State [being] directly chosen by the people of the State" ^[274] and members of the House of Representatives being "directly chosen by the people of the Commonwealth" ^[275] . Moreover, the Constitution postulates regular elections and provides that "senators shall be chosen for a term of six years" ^[276] and that "[e]very House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be sooner dissolved by the Governor-General." ^[277]

And the franchise for elections for the Senate and the House of Representatives must extend to every "adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State" ^[278] . Fundamental constitutional doctrines are not always the subject of exhaustive constitutional provision, either because they are assumed in the Constitution ^[279] or because what they entail is taken to be so obvious that detailed specification is unnecessary. Thus, for example, the separation of the judicial arm of government from the legislative and executive arms is a matter which is taken for granted by the Constitution, albeit that it is revealed, to some extent, by s71 which provides for the vesting of the judicial power of the Commonwealth in the courts therein named or designated. This fundamental constitutional doctrine informs our understanding of Ch. III and provides, in part, the foundation for implications as to the powers that Parliament may or may not confer on courts ^[280] . So too, not every consequence of the federal compact is spelt out in the Constitution, but it follows from the very notion of federalism that the Commonwealth may not legislate so as to strike at the continued existence of a State or to impair its capacity to function as such ^[281] .

The provisions of the Constitution directing elections for the Houses of Parliament, directing regular elections and requiring that Senators be "directly chosen by the people of the State" and that members of the House of Representatives be "directly chosen by the people of the Commonwealth" in elections in which the franchise extends to adult persons who have the right to vote "for the more numerous House of the Parliament of a State" predicate and, in turn, are predicated upon a free society governed in accordance with the principles of representative parliamentary democracy. The Constitution does not proclaim it in terms but, as was said by Isaacs J in Federal Commissioner of Taxation v Munro ^[282] , the Constitution is one "for the advancement of representative government, and contains no word to alter the fundamental features of that institution".

Representative parliamentary democracy is a fundamental part of the Constitution as fundamental as federalism and as fundamental as the vesting of judicial power in an independent federal judiciary separate from the other arms of government. Its acceptance as such is dictated by the election and franchise provisions to which I have referred. It is reinforced by the opening words of the Constitution, reciting the agreement of the people to unite in an "indissoluble Federal Commonwealth ... under the Constitution", and by its final provision, s128, which acknowledges that the Constitution may and may only be altered by vote of "the electors in each State and Territory qualified to vote for the election of the House of Representatives" who, as already mentioned, must include all those who are eligible to vote for the more numerous House of the Parliament of the State. Indeed, as Barwick CJ said of the federal nature of the Commonwealth, representative parliamentary democracy "is manifest throughout the Constitution" ^[283] . Like the essential federal nature of the Commonwealth and the separation of the judicial power from other arms of government, representative parliamentary democracy informs our understanding of the specific provisions of the Constitution and it entails consequences, some of which may be obvious and some of which may be revealed by the general law, including the common law.

The general law acknowledges that freedom of discussion of matters of public importance is essential to the maintenance of a free and democratic society. Blackstone went so far as to assert that the liberty of the press is essential to a free state ^[284] . The cruciality of the free discussion of matters of public importance has been recognised in recent times, both in this Court ^[285] and in the courts of other great democratic societies ^[286] . It is sufficient to refer to what was said by Lord Simon of Glaisdale in Attorney-General v Times Newspapers Ltd ^[287] : "People cannot adequately influence the decisions which affect their lives unless they can be adequately informed on facts and arguments relevant to the decisions. Much of such fact-finding and argumentation necessarily has to be conducted vicariously, the public press being a principal instrument."

His Lordship was speaking generally, but what he said is especially true in relation to elections held to determine the composition of the parliaments and the legislatures and, ultimately, the government of the political entity concerned. The cruciality of discussion in relation to elections was made lain by Windeyer J in Australian Consolidated Press Ltd v Uren ^[288] , his Honour stating that "[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."

The notion of a free society governed in accordance with the principles of representative parliamentary democracy may entail freedom of movement, freedom of association ^[289] and, perhaps, freedom of speech generally ^[290] . But, so far as free elections are an indispensable feature of a society of that kind, it necessarily entails, at the very least, freedom of political discourse. And that discourse is not limited to communication between candidates and electors, but extends to communication between the members of society generally.

The argument on behalf of the Commonwealth in the first matter and the defendants in the second matter, conceded that some limited freedom of communication is necessarily to be implied in the Constitution, including a reedom to communicate with elected representatives and the central organs of government. And, according to the argument, there is also to be implied a freedom of communication between electors and candidates for election to the Parliament of the Commonwealth, at least in relation to an election that has been announced. However, it was argued that s92, in providing for freedom of interstate intercourse, prevents the implication of any further freedom for the members of society to communicate with each other, whether generally or in relation to Commonwealth elections.

The rule of construction which is expressed in the maxim expressum facit cessare tacitum and which precludes an implication being made on a topic with respect to which provision has been made is closely related to the expressio unius rule. Like that rule, it is one that must be applied with caution ^[291] . And like that rule, it can only be applied if it is clear that the provision in question was intended to make exhaustive provision with respect to the topic concerned ^[292] . Because the concession made on behalf of the Commonwealth in the first action, and the defendants in the second action, allows that s92 is not exhaustive with respect to communication generally, it is destructive of the argument that s92 precludes any implication as to the right of the members of society to communicate with each other.

The fact that s92 does not provide exhaustively with respect to freedom of communication was acknowledged in R v Smithers; Ex parte Benson ^[293] . In that case, Griffith CJ adopted as appropriate to our Commonwealth the remarks of Miller J in Crandall v State of Nevada ^[294] s to the rights of the citizens of the United States of America to communicate with the various organs of government ^[295] and concluded that s92 was not the only constitutional prohibition bearing on the movement of individuals between the States, his Honour holding that "the former power of the States to exclude any persons whom they might think undesirable inhabitants is cut down to some extent by the mere fact of federation, entirely irrespective of the provisions of s92 and s117" ^[296] . And there are indications in s92 itself that it was not intended to be exhaustive as to the rights of Australians to communicate with each other. In the first place and so far as presently relevant, it deals with "intercourse among the States" which is a discrete topic and one which has its own special importance in the federal arrangements effected by the Constitution. Another matter which tells against the exhaustive nature of s92 is that the freedom it confers is expressed to come into existence only with "the imposition of uniform duties of customs". And, of course, s92 appears in Ch. IV of the Constitution, the provisions of which focus on finance and trade. It is hardly to be expected that, in that context, s92 was intended to deal exhaustively with the right of Australians to communicate with each other. Accordingly and notwithstanding some comments to the contrary in Miller v TCN Channel Nine Pty Ltd ^[297] , s92 does not, in my view, preclude the implication of a freedom of political discourse a freedom which is required by the nature of the Constitution as one for a free society governed in accordance with the principles of representative parliamentary democracy.

THE OPERATION OF THE IMPLIED FREEDOM OF POLITICAL DISCOURSE

It is uncontroversial that the federal nature of the Commonwealth and the separation of the federal judiciary from the other arms of government provide he basis for important constitutional implications ^[298] . The nature and scope of those implications have not been fully determined299. However, it is settled that a limitation is not to be implied in the grant of constitutional power if the words of the grant can be construed without it ^[300] . Thus, but as specified in s51, "subject to [the] Constitution", the legislative powers conferred by that section must be given their full meaning and operation.

The federal nature of the Constitution and the separation of the federal judiciary from the other arms of government are part of the Constitution, even though the Constitution does not contain prescriptive provision with respect to either matter. So too, the detailed provisions with respect to elections reveal that the Constitution is for a Commonwealth which is a free society governed in accordance with the principles of representative parliamentary democracy even though that is not stated in terms. Because s51 confers power "subject to [the] Constitution", the legislative power conferred by that section is confined by that consideration as well as by the federal nature of the Constitution and the separation of the federal judiciary from the other arms of government. So far as is presently relevant, s51 does not authorise laws which are inconsistent with the free and democratic nature of the Commonwealth. Thus, but subject to what is said as to regulation, the power conferred by s51 does not extend to the making of laws that impair the free flow of information and ideas on matters falling within the area of political discourse.

THE SUBJECT MATTER OF THE FREEDOM OF POLITICAL DISCOURSE

Obviously, the Constitution does not postulate a society that is free and democratic only at election time. Nor, but perhaps not so obviously, does it postulate a society that is free and democratic only with respect to matters which the Constitution entrusts to the Commonwealth. Of course, that much is necessarily contemplated and, as the matters entrusted to the Commonwealth include the power conferred by s122 to make laws for the government of its Territories, the freedom of political discourse necessarily extends to every aspect of Territory government, including Territory elections. However, there s a discrete question whether the power conferred by s122, which is not expressed to be subject to the Constitution, may be exercised free of the prohibition deriving from the implied freedom of political discourse ^[301] . That is not a question that need be answered in this case.

There are three matters which dictate that freedom of political discourse extends beyond Commonwealth and Territory affairs. The first is that the distribution of powers and functions between the Commonwealth and the States is not immutable. S51(xxxvii) of the Constitution expressly contemplates that matters which the Constitution leaves with the States may be referred to the Parliament of the Commonwealth and may, when referred, be the subject of Commonwealth legislative power. Moreover and more importantly, s128 recognises that the Constitution and, hence, the federal arrangements depend on the will of the people and may be altered by the people in accordance with the procedures there laid down. The power of the States to refer matters to the Commonwealth and the power of the people to change the Constitution require that freedom of political discourse extend to every aspect of the federal arrangements, including the powers of the States and the manner of their exercise.

The second matter requiring that the freedom of political discourse should extend to State matters is the nature of the federal compact. That compact is such that the exercise of power by the Commonwealth will, in very many cases, impact upon the States, either because of the economic relationship between them and the Commonwealth or because of the operation of s109 of the Constitution. Equally, although perhaps not so often, the exercise or non-exercise by a State of its powers may be a factor influencing decisions as to the exercise of Commonwealth power.

The third and final matter which requires that the freedom of political discourse should extend to the affairs of the States is that "the Constitution expressly recognises their Constitutions ^[302] , heir Parliaments ^[303] and their electoral processes ^[304] and, in so doing, necessarily recognises their democratic nature.

Given the inter-relationship of State and Commonwealth powers and the recognition in the Constitution of the States' democratic processes, the freedom of political discourse must be seen as extending to matters within the province of the States. The freedom thus involves, at the very least, the free flow of information and ideas bearing on Commonwealth, State and Territory government, government arrangements and institutions, matters within the province of Commonwealth, State and Territory governments, their agencies and institutions, those persons who are or would be members of their Parliaments and other institutions of government and such political parties or organisations that exist to promote their cause. Certainly the matters defined as "political matter" in s95B, s95C and s95D of the Act and to which the ban effected by those sections is directed lie at the heart of that discourse which the Constitution protects.

REGULATION OF POLITICAL DISCOURSE

Recourse to the general law reveals that freedom of speech (which, of course, is wider than freedom of political discourse) is not absolute, but may be regulated and, in certain circumstances, may be severely restricted. As the implied freedom is one that depends substantially on the general law, its limits are also marked out by the general law. Thus, in general terms, the laws which have developed to regulate speech, including the laws with respect to defamation, sedition, blasphemy, obscenity and offensive language, will indicate the kind of regulation that is consistent with the freedom of political discourse. It is not presently necessary to consider whether the implied freedom of political discourse affects the powers of the States and, if so, to what extent. But, assuming that it does, the laws which indicate the kind of regulation that is consistent with freedom of political discourse will also indicate the area in which, subject to s109 of the Constitution, State laws may nonetheless operate. And, as the freedom of political discourse is concerned with the free flow of information and ideas, it neither involves the right to disseminate false or misleading material nor limits any power that authorises laws with respect to material answering that description.

The Commonwealth has power to regulate political discourse only in accordance with and by reference to the specific powers which the Constitution entrusts to it. Given that the powers conferred by s51 are conferred "subject to the Constitution" and, hence, subject to the implied freedom of political discourse, that means that a power so conferred may only be used to regulate political discourse to the extent that that regulation is, in terms used in Davis v The Commonwealth ^[305] , "reasonably and appropriately adapted" to achieve some end within the limits of that power. And, of course, what is reasonable and appropriate will, to a large extent, depend on whether the regulation is of a kind that has traditionally been permitted by the general law. Thus, so far as the Commonwealth in the first matter and the defendants in the second matter rely on s51, the question is not, as argued on their behalf, whether Pt3D can be characterised as a law with respect to a subject matter therein specified, but whether it is reasonably and appropriately adapted to some end that lies within the scope of the power conferred with respect to that subject matter.

S51(v) OF THE CONSTITUTION AND REASONABLE AND APPROPRIATE REGULATION

It was argued on behalf of the Commonwealth in the first matter and the defendants in the second matter, that Pt3D of the Act was valid in its entirety as a law with respect to "[p]ostal, telegraphic, telephonic and other like services" under s51(v) of the Constitution. That argument was put on the basis, which must be rejected, that the power was not relevantly affected by any of the constitutional prohibitions asserted by the plaintiffs in the two matters before the Court.

It was not argued that the ban effected by s95B, s95C and s95D, when read in conjunction with the provisions of Divs 3 and 4 of Pt3D of the Act, was valid as a measure reasonably and appropriately adapted to the regulation of television and radio broadcasting. Indeed, it could not be so regarded. Pt3D of the Act does not deal with broadcasting generally, nor does it deal with radio and television advertising generally. Instead, it selects from the whole range of broadcasting and from the whole range of radio and television advertising that one aspect that involves election advertising. So far as the ban operates with respect to elections, it strikes at a time when the freedom of political discourse is essential. And the ban seeks to control that discourse, not by reference to any of the criteria to be found in the general law relating to the spoken or written word, but simply because it is election advertising. The ban effected by s95B, s95C and s95D of the Act cannot be regarded as a measure reasonably and appropriately adapted to the regulation of radio and television broadcasting.

It is common ground that there is no head of power, other than that conferred by s51(v), capable of supporting the ban in s95D with respect to State and local government elections. As the ban cannot be regarded as a measure reasonably and appropriately adapted to the regulation of radio and television broadcasting, s95D is invalid. The provisions of Divs 3 and 4 in their operation with respect to State elections cannot be severed so as to have a valid operation independently of s95D. An operation of that kind would be quite different from that intended by the Parliament ^[306] . So far as they bear on State elections, those provisions are also invalid.

REASONABLE AND APPROPRIATE REGULATION OF COMMONWEALTH ELECTIONS

It was argued on behalf of the Commonwealth in the first matter and the defendants in the second matter, that s95B and the other provisions of Pt3D of the Act as they bear on Commonwealth elections are valid because the power with respect to Commonwealth elections is plenary, alternatively, because, in their operation with respect to Commonwealth elections, the provisions are reasonably and appropriately adapted to the regulation of those elections.

Power is conferred on the Parliament of the Commonwealth with respect to specific matters relating to Commonwealth elections by various provisions in Ch. I of the Constitution. For example, s9 confers power to "make laws prescribing the method of choosing senators, but so that the method shall be uniform for all the States" and s27 confers power, subject to the Constitution, to "make laws for increasing or diminishing the number of the members of the House of Representatives" ^[307] . Provision is also made in Ch. I as to what should happen in relation to certain other aspects of elections "until the Parliament of the Commonwealth otherwise provides". Thus, for example, s10 and s31 provide, subject to the Constitution, that the laws of the States with respect to elections for the more numerous House of the Parliament of the State shall apply to elections for senators and members of the House of Representatives respectively "[u]ntil the Parliament otherwise provides" ^[308] . Power to legislate with respect to "[m]atters in respect of which [the] Constitution makes provision until the Parliament otherwise provides" is conferred by s51(xxxvi). And, of course, s51(xxxix) confers power to legislate with respect to "the execution of any power vested by [the] onstitution in the Parliament" and the other organs of government therein specified ^[309] . It is doubtless correct to say that, by virtue of the combined operation of the provisions in Ch. I conferring legislative power and s51(xxxvi) and s51(xxxix), the Commonwealth has plenary power with respect to Commonwealth elections ^[310] . However and leaving aside s14 ^[311] , the powers conferred by Ch. I are either circumscribed by the terms of grant ^[312] or expressly conferred "[s]ubject to [the] Constitution" ^[313] . And, of course, Ch. I confers power only with respect to particular aspects of the election process: it does not confer power with respect to elections generally, or with respect to election advertising or campaigning. Power to regulate election advertising or election campaigning must be found in s51 and that power is "subject to [the] Constitution" and, hence, subject to the implied freedom of political discourse.

Viewing Pt3D of the Act only in its operation with respect to Commonwealth elections, it may be possible and I express no opinion on the matter to view its operation with respect to candidates and political parties as reasonable and appropriate regulation of their use of radio and television for election advertising. But the ban effected by s95B extends beyond candidates and political parties. It prohibits all use of radio and television for the dissemination of information and ideas on the issues involved in an election (unless it is exempt material). Its effect on candidates and political parties is mitigated by the provisions of Divs 3 and 4, but not at all with respect to other individuals and organisations.

Even allowing that the persons who, save for exempt material, are shut out from radio and television broadcasts may avail themselves of the print media for the dissemination of information and ideas to the public or to some section of it, the ban in s95B is a serious curtailment of their freedom of political discourse. That curtailment cannot be viewed as reasonable and appropriate regulation in a context where candidates and political parties are allocated free time for their political advertisements. Moreover, as with s95D, the prohibition operates not on account of any criteria by reference to which the spoken or written word has been traditionally regulated, but because the persons concerned wish to make use of radio and television for the broadcasting of political material during an election period - a period when freedom of political discourse is of the greatest importance.

So far as it operates with respect to persons who are not candidates and organisations that are not political parties with endorsed candidates in an election, the ban in s95B cannot be viewed as reasonably and appropriately adapted to the regulation of Commonwealth elections. It is not possible to treat s95B as having a valid operation with respect only to candidates and political parties for that would involve rewriting s95B(4) ^[314] . As with s95D and for the same reasons, the provisions of Divs 3 and 4 of Pt3D of the Act, as they operate with respect to Commonwealth elections, cannot be given valid operation independently of s95B.

S122 OF THE CONSTITUTION

It was not argued that s95C and the other provisions of Pt3D of the Act in their operation with respect to Territory elections could be supported by s122 if they were not otherwise supported by s51(v) of the Constitution. And, of course, the general rule is that a law which is "intended to be one of general application throughout the whole of the Commonwealth and its territories" but which is "beyond s51" will fail completely "in the absence of a clear indication that it should nevertheless apply in the territories" ^[315] . However, given that s95(2) of the Act expresses the intention of Parliament that "the several provisions of [Pt3D of the Act] should operate to the extent to which they are capable of validly operating", it is appropriate to consider whether s122 supports Pt3D in its operation with respect to Territory elections.

So far as is presently relevant, s122 empowers Parliament to "make laws for the government of [a] Territory surrendered by [a] State and accepted by the Commonwealth". It has been said that s122 gives "a complete and, as opposed to those given by s51, a different power" ^[316] and that it makes provision "which is appropriately free from all concern with problems of federalism" ^[317] . The consequences of the different nature of the power conferred by s122 were considered in relation to s72, s73 and s80 of the Constitution in Spratt v Hermes, in Capital TV and Appliances Pty Ltd v Falconer and in R v Bernasconi respectively. The effect of the decisions in Spratt v Hermes and R v Bernasconi is that the power conferred by s122 is not confined by the terms of s72 and s80 ^[318] . For a discussion of the relationship between s122 and s116, see Attorney-General (Vict.); Ex rel. Black v The Commonwealth (1981) 146 CLR, per Gibbs J at 593-594.)

However, it does not follow from those or any of the other cases decided with respect to s122 that it stands apart from other provisions of the Constitution with its meaning and operation uninfluenced by them.

As was said by Barwick CJ in Spratt v Hermes ^[319] , questions as to its construction must be "resolved upon a consideration of the text and of the purpose of the Constitution as a whole".

The power conferred by s122 was described by Dixon CJ, with the approval of the majority of the Court, in Lamshed v Lake ^[320] as a power "to make laws 'for', that is to say 'with respect to', the government of the Territory". His Honour added that "[t]he words 'the government of any territory' of course describe the subject matter of the power." ^[321] That it is a power with respect to a subject matter, as distinct from a power to make laws for peace, order and good government, is revealed by a comparison of its terms with those found in s51 which confers power "to make laws for the peace, order and good government of the Commonwealth with respect to" the subject matters there specified.

It may be that a slightly different view from that in Lamshed v Lake was expressed by Barwick CJ in Spratt v Hermes. In that case, his Honour said that the power conferred by s122 "is a complete power to make laws for the peace, order and good government of the territory - an expression condensed in s122 to 'for the government of the Territory'" ^[322] . Later, in Capital TV and Appliances Pty Ltd v Falconer ^[323] , his Honour described the power as of a "different order" from those derived from s51 and 52 "because it is not referable to a specified subject matter". And in Teori Tau v The Commonwealth ^[324] the power was said to be "plenary in quality and unlimited and unqualified in point of subject matter", a description which was cited with approval in Northern Land Council v The Commonwealth ^[325] .

There is no doubt either as to the amplitude of the power conferred by s122 or as to its qualitative difference from that conferred by s51. It seems to me that the statements to which reference has been made were directed to emphasising those features and not to asserting that a law which applies in a Territory is, to that extent, a law authorised by s122. Such a view would be inconsistent with what was said in Lamshed v Lake and with the accepted approach to characterisation which treats a law of general application that is not supported by s51 as invalid in its application to the Territories unless there is some indication that it should nevertheless apply in them. The true position, in my opinion, is that a law is authorised by s122 if, in words used in Attorney-General (WA) v Australian National Airlines Commission ^[326] , it has "a sufficient connexion or nexus with the good government of the Territory" or "a rational connexion with the government of the Territories".

Given that the Commonwealth has enacted legislation with respect to the Australian Capital Territory ^[327] and the Northern Territory ^[328] , in each case establishing a separate body politic, conferring a significant measure of self-government and establishing representative and democratically elected legislatures, Pt3D of the Act cannot be viewed as having sufficient connection with their government to make it a law for the government of the Territories. Thus, s95C of the Act is invalid. And as with s95B and s95D and for the same reasons, the other provisions of Pt3D of the Act in their operation with respect to Territory elections are also invalid.

CONCLUSION

The conclusion that s95B, s95C and s95D are invalid and that the provisions of Divs 3 and 4 as they relate to Commonwealth, Territory and State elections cannot validly be severed has the result that the operative provisions of Pt3D of the Act are invalid in their entirety. That conclusion makes it unnecessary to consider whether Pt3D infringes s92 of the Constitution, whether its provisions in relation to State and local government elections and with respect to broadcasts for or on behalf of State governments infringe any prohibition deriving from the federal nature of the Constitution and whether its "free time" provisions involve the acquisition of property other than on just terms. It is also unnecessary to decide the separate question whether s95D applies in relation to State by-elections.

In the first matter the demurrer should be overruled. In the second matter the first paragraph of the Commonwealth's demurrer should be overruled.