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

Judges: Mason CJ
Brennan
Deane, Toohey
Dawson
Gaudron

McHugh JJ

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

Judgment by:
McHugh J

These demurrers to statements of claim which challenge the constitutionality of Pt3D of the Broadcasting Act 1942 (Cth) ("the Act") raise four issues: Is Pt3D invalid because it, or some of its provisions: 1. contravene an implied constitutional guarantee of freedom of discussion concerning matters arising out of or in the course of elections for the Parliaments of the Commonwealth, the States and the Territories and for local government authorities? 2. constitute an interference with the functioning and integrity of the States? 3. contravene the guarantee of freedom of intercourse given by s92 of the Constitution? 4. constitute a taking of property otherwise than on just terms?

The object of Pt3D of the Act is to prohibit political advertising by means of radio and television. The scheme of the legislation is to prohibit the publishing of advertisements of political matter (which is defined widely) and the publishing of matter on behalf of a government or government authority during an election period in relation to a federal election or referendum (s95B), a Territory election (s95C) or a State or local government election (s95D). The effect of these prohibitions is partially relaxed by s95A which permits the broadcast of items of news or current affairs, comment on any such items, talkback radio programs, public health advertisements, some advertisements on behalf of charitable organisations and some material which is broadcast for the benefit of the visually handicapped, notwithstanding that these broadcasts contain matter which would otherwise be prohibited by s95B-s95D ^[329] . The effect of the prohibitions is also partially ameliorated by the provisions of Div 3 which contains complex provisions relating to the allocation of free time for election broadcasts and by the provisions of Div 4 which permits political parties represented in Parliament who have endorsed candidates for an election to broadcast a "policy launch once during the election period". Except to the extent necessary to explain my reasons, it is unnecessary to refer to the detail of the legislation.

THE CONTENTIONS OF THE PARTIES

The Commonwealth contends that the provisions of Pt3D were validly made pursuant to the power conferred by s51(v) of the Constitution and the combination of powers conferred by s10, s29, s31, s51(xxxvi) and s51(xxxix) of the Constitution. The latter group of powers enables the Commonwealth, ubject to the Constitution, to make laws with respect to elections for the Senate and the House of Representatives. Subject to any express or implied prohibitions in the Constitution, the powers conferred by s10, s29, s31, s51(xxxvi) and s51(xxxix) of the Constitution are wide enough to authorise the provisions of Pt3D so far as they apply to elections held by the Commonwealth ^[330] . However, the provisions of Pt3D apply to State, Territory and local government elections as well as Commonwealth elections. Because the provisions of s10, s29, s31, s51(xxxvi) and s51(xxxix) of the Constitution do not authorise the provisions of Pt3D in so far as those provisions apply to State, Territory and local government elections, the Commonwealth found it necessary to rely on the power conferred by s51(v) to make laws with respect to "Postal, telegraphic, telephonic, and other like services" to support the validity of Pt3D so far as it applied to such elections.

It is established that the power to make laws with respect to "other like services" extends to making laws with respect to broadcasting and television ^[331] . It is also established that this power extends to making laws for prohibiting or regulating the broadcasting or televising of programs ^[332] . Consequently, the Commonwealth submitted that, in so far as Pt3D prohibited and regulated the broadcasting and televising of political matter, it was validly enacted pursuant to the power conferred by s51(v) of the Constitution.

The arguments for the plaintiffs did not dispute that the terms of the various powers to which I have referred were sufficiently broad to authorise legislation such as Pt3D. But they pointed out that the powers conferred by s51(v), s51(xxxvi) and s51(xxxix) are conferred "subject to this Constitution". The plaintiffs in the first action argued that the power to regulate or prohibit political advertising by means of broadcasting or televising is subject to: (1) an implied constitutional guarantee of freedom of communication in relation to the political and electoral processes; (2) an implied guarantee of freedom of communication arising from the common citizenship of the Australian people; and (3) the express guarantee of freedom of intercourse in s92 of the Constitution.

The State of New South Wales, the plaintiff in the second action, argued that s95D(3) and s95D(4) are invalid because they interfere with State elections and that s95B(3), s95C(4) and s95D(3) are invalid because they impose a special disability on the States. The State of New South Wales also argued that s95B(3) and s95B(4) and s95C(4) and s95C(5) are invalid because they contravene an implied constitutional right of freedom of communication with the central organs of federal government and with respect to federal electoral and judicial processes.

The plaintiffs in both actions also argued that the "free time" provisions of Pt3D are invalid because, contrary to s51(xxxi) of the Constitution, they constitute an acquisition of property otherwise than on just terms.

DOES THE CONSTITUTION GUARANTEE FREEDOM OF COMMUNICATION FOR THE PURPOSE OF ELECTIONS?

When the Constitution is read as a whole and in the light of the history of constitutional government in Great Britain and the Australian colonies before federation, the proper conclusion to be drawn from the terms of s7 and s24 of the Constitution is that the people of Australia have constitutional rights of freedom of participation, association and communication in relation to federal elections.

S7 of the Constitution provides that "The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate." S24 provides that "The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth". Although s24 does not mention voting, it is plain from the terms of s25 and s30 that the members of the House of Representatives are to be chosen by votes taken at an election. Other provisions of the Constitution require periodic elections for the Senate and House of Representatives ^[333] . S7 and s24, therefore, confer rights on the people of Australia to choose "directly" the members of both Houses of Parliament by means of votes taken at periodic elections.

Parliament cannot legislate under s51 so as to derogate from these rights because the powers conferred by s51 are conferred "subject to this Constitution". Thus, Parliament could not legislate for election to the Senate or the House of Representatives by means of an electoral college. Legislation of that character would contravene the constitutional requirement that the Senate and the House of Representatives should be "directly" chosen.

Nor could the Parliament legislate so as to prevent members of lawful political parties from being elected to Parliament. Legislation of that character would contravene the right of the people to choose the members of the Senate and the House of Representatives from those candidates not disqualified by s44 of the Constitution from "being chosen or ... sitting as a senator or a member of the House of Representatives".

However, the present case is removed from the blatant infringements of s7 and s24 of the Constitution involved in those two examples. It raises the different questions of whether the right of the people of the Commonwealth to choose the members of the Senate and the House of Representatives carries with it the right to convey and receive information, opinions and arguments concerning such elections and the candidates who are involved in them and whether the right is contravened by a law which, subject to exceptions, prevents candidates and electors from communicating political matter to each other through an otherwise lawful medium. The first question turns on the meaning of the expression "directly chosen by the people of the State" in s7 of the Constitution and the expression "directly chosen by the people of the Commonwealth" in s24 of the Constitution. The second question turns on the extent to which the Parliament of the Commonwealth can regulate the rights which s7 and s24 confer on the people of the Commonwealth.

REPRESENTATIVE GOVERNMENT AND RESPONSIBLE GOVERNMENT

The purpose of the Constitution was to further the institutions of representative and responsible government. That was made explicit at the second National Australasian Convention held in Adelaide in 1897. On the motion of Sir Edmund Barton, the Convention resolved that the purpose of the Constitution was "to enlarge the powers of self-government of the people of Australia" ^[334] . The object of this resolution was: "to direct the attention of opponents and lukewarm supporters to the fact that, though federation involved the surrender by the Governments of the several colonies of certain rights and powers, yet as regards each individual citizen there was no surrender, but only a transfer of those rights and powers to a plane on which they could be more effectively exercised" ^[335] .

Although the makers of the Constitution were much influenced by the terms and structure of the Constitution of the United States and "felt the full fascination of its plan" ^[336] , they rejected the United States example of a Bill of Rights to protect the people of the Commonwealth against the abuse of governmental power. They did so because they believed in the efficacy of the two institutions which formed the basis of the Constitutions of Great Britain and the Australian colonies - representative government and responsible government - and because they believed that the interests of people of the States would be protected by the Senate as the States' House. The result, as Professor Harrison Moore pointed out in The Constitution of The Commonwealth of Australia ^[337] was that: "Fervid declarations of individual right, and the protection of liberty and property against the government, are conspicuously absent from the Constitution; the individual is deemed sufficiently protected by that share in the government which the constitution ensures him. "

The share in the government which the Constitution ensured was the right to determine who should be the representatives of the people in the Houses of Parliament.

By vesting the legislative power of the Commonwealth in a Parliament "which shall consist of the Queen, a Senate, and a House of Representatives" ^[338] and by giving the people of the Commonwealth, through s7, s24, s30, and s41, control over the composition of Parliament, the Constitution gives effect to a system of Representative democracy. That has long been recognised ^[339] . In Federal Commissioner of Taxation v Munro ^[340] , Isaacs J said that "the Constitution is for the advancement of representative government, and contains no word to alter the fundamental features of that institution".

By vesting the executive power of the Commonwealth in the Queen to be exercisable by the Governor-General ^[341] and by providing for advice to the Governor-General by a Federal Executive Council ^[342] , whose members are Ministers of State unable to hold office for a longer period than three months unless they are or become senators or members of the House of Representatives ^[343] , the Constitution also gives effect to a system of responsible government ^[344] .

The words "directly chosen by the people" in s7 and s24 of the Constitution have to be interpreted against the background of the institutions of representative government and responsible government to which the Constitution gives effect but does not specifically mention. The words of s7 and s24 must be construed by reference to the conceptions of representative government and responsible government as understood by informed people in Australia at the time of federation. In The Commonwealth v Kreglinger and Fernau Ltd and Bardsley ^[345] , Isaacs J said: "it is the duty of this Court, as the chief judicial organ of the Commonwealth, to take judicial notice, in interpreting the Australian Constitution, of every fundamental constitutional doctrine existing and fully recognised at the time the Constitution was passed, and therefore to be taken as influencing the meaning in which its words were used by the Imperial Legislature".

His Honour went on to say ^[346] in that case that the principle of responsible government is "part of the fabric on which the written words of the Constitution are superimposed".

Representative government involves the conception of a legislative chamber whose members are elected by the people. But, as Birch points out ^[347] , o have a full understanding of the concept of representative government, "we need to add that the chamber must occupy a powerful position in the political system and that the elections to it must be free, with all that this implies in the way of freedom of speech and political organisation". Furthermore, responsible government involves the conception of a legislative chamber where the Ministers of State are answerable ultimately to the electorate for their policies. As Sir Samuel Griffith pointed out in his Notes on Australian Federation ^[348] , the effect of responsible government "is that the actual government of the State is conducted by officers who enjoy the confidence of the people".

It is not to be supposed, therefore, that, in conferring the right to choose their representatives by voting at periodic elections, the Constitution intended to confer on the people of Australia no more than the right to mark a ballot paper with a number, a cross or a tick, as the case may be. The "share in the government which the Constitution ensures" would be but a pious aspiration unless s7 and s24 carried with them more than the right to cast a vote. The guarantees embodied in s7 and s24 could not be satisfied by the Parliament requiring the people to select their representatives from a list of names drawn up by government officers.

If the institutions of representative and responsible government are to operate effectively and as the Constitution intended, the business of government must be examinable and the subject of scrutiny, debate and ultimate accountability at the ballot box. The electors must be able to ascertain and examine the performances of their elected representatives and the capabilities and policies of all candidates for election. Before they can cast an effective vote at election time, they must have access to the information, ideas and arguments which are necessary to make an informed judgment as to how they have been governed and as to what policies are in the interests of themselves, their communities and the nation. As the Supreme Court of the United States pointed out in Buckley v Valeo ^[349] , the ability of the people to make informed choices among candidates for political office is fundamental because the identity of those who are elected will shape the nation's destiny.

It follows that the electors must be able to communicate with the candidates for election concerning election issues and must be able to communicate their own arguments and opinions to other members of the community concerning those issues. Only by the spread of information, opinions and arguments can electors make an effective and responsible choice in determining whether or not they should vote for a particular candidate or the party which that person represents. Few voters have the time or the capacity to make their own xamination of the raw material concerning the business of government, the policies of candidates or the issues in elections even if they have access to that material. As Lord Simon of Glaisdale pointed out in Attorney-General v Times Newspapers ^[350] : "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."

The words "directly chosen by the people" in s7 and s24, interpreted against the background of the institutions of representative government and responsible government, are to be read, therefore, as referring to a process - the process which commences when an election is called and ends with the declaration of the poll. The process includes all those steps which are directed to the people electing their representatives - nominating, campaigning, advertising, debating, criticising and voting. In respect of such steps, the people possess the right to participate, the right to associate and the right to communicate. That means that, subject to necessary exceptions, the people have a constitutional right to convey and receive opinions, arguments and information concerning matter intended or likely to affect voting ^[351] in an election for the Senate or the House of Representatives. Moreover, that right must extend to the use of all forms and methods of communication which are lawfully available for general use in the community. To fail to give effect to the rights of participation, association and communication identifiable in s7 and s24 would be to sap and undermine the foundations of the Constitution.

It may be that the rights to convey and receive opinions, arguments and information conferred by s7 and s24 are not confined to the period of an election for the Senate and House of Representatives. It may be that the rights inherent in those sections are simply part of a general right of freedom of communication in respect of the business of government of the Commonwealth. In that connection it is significant that it was recognised early on that, by necessary implication, the Constitution gave rights of access to federal officials and records. In The Annotated Constitution of the Australian Commonwealth, published in 1901, Quick and Garran pointed out ^[352] : "To be allowed to visit the seat of Government, to gain access to Federal territories, to petition the Federal authorities, to examine the public records of the Federal Courts and institutions, are rights which, if not expressly granted, may be inferred from the Constitution, and which could not be taken away or abridged by the States any more than those directly and clearly conveyed."

Similarly, members of this Court have recognised that the people of the Commonwealth have an implied right of access through the States for federal purposes which the States cannot impede except on grounds of necessity. ^[353] Furthermore, one of the conceptions of representative government is that members of Parliament have an obligation to listen to and ascertain the views of their constituents during the life of the Parliament. This conception strengthens the case for concluding that, by implication, the Constitution gives a general right of freedom of communication in respect of the business of government of the Commonwealth. But it is unnecessary for the purposes of this case to decide whether, by implication, the Constitution gives to the people of the Commonwealth such a general right of freedom of communication. For the purpose of the present case, it is enough to hold that legislation such as that embodied in Pt3D of the Act contravenes the right of the people to participate in the federal election process unless some compelling justification for its enactment can be established.

The Commonwealth contended that s7 and s24 of the Constitution go no further than requiring that the legislative powers vested in Parliament not be exercised inconsistently with the existence of representative government. It was then contended that representative democracy is descriptive of a wide spectrum of political institutions and processes, each different in countless respects yet answering to that generic description. Accordingly, so the Commonwealth contended, as long as the Parliament kept within the limits of that spectrum, it was for the Parliament and not the Courts to determine the merits of any particular method of regulating the electoral system. Invoking the rhetoric of the Engineers' Case ^[354] , the Commonwealth contended that the remedy against an erroneous exercise of legislative power lies in the ballot box and not in the Courts.

The short answer to the Commonwealth's contentions is that the powers conferred on the Commonwealth by s51 of the Constitution are conferred "subject to this Constitution" and that the Constitution embodies a system of representative government which involves the conceptions of freedom of participation, association and communication in respect of the election of the representatives of the people. Under the Constitution of the Commonwealth of Australia, those freedoms have been elevated to the status of constitutional rights. The powers conferred by s51 of the Constitution give the Commonwealth no absolute power to exclude electors, candidates, or information from the federal electoral process.

COMPELLING JUSTIFICATION

The constitutional rights identifiable in s7 and s24 of the Constitution - freedom of participation, association and communication - exist so that the people of the Commonwealth can make reasoned and informed choices in respect of the candidates who offer themselves for election. Laws which interfere with the flow of political information or a category of political information simply because it is political information are an interference with the constitutional rights conferred by those sections. However, the rights identifiable in s7 and s24 are not absolute rights. They are rights conferred for the purpose of enabling the electors to make a true choice in a free and democratic society. They may be regulated by other laws which seek to achieve an honest and fair election process. Thus, the power conferred by s10, s29, s31 and s51(xxxvi) and s51(xxxix) of the Constitution to make laws with respect to the federal electoral process may be used to prevent fraud, intimidation, corruption and misleading information in an election without infringing the rights conferred by s7 and s24. In Smith v Oldham, this Court held that the powers conferred by s51(xxxvi) and s51(xxxix) authorised a law requiring any written matter commenting upon any candidate or political party or the issues arising in an election to be signed by the author together with his or her true name and address. All members of the Court accepted that these powers gave the Commonwealth legislative authority to make laws for the purpose of protecting elections for the Parliament of the Commonwealth against bribery, intimidation and fraud ^[355] . However, no reason exists for confining the Commonwealth's regulatory power over federal elections to the prevention of dishonesty.

Nevertheless, I am unable to accept the dictum of this Court in Fabre v Ley ^[356] when it said that "the legislative power of the Parliament [in respect of an election] is not subject to any restriction other than that which flows from s41 of the Constitution". No reference was made in that case to the provisions of s7 and s24. It was not concerned with any question of freedom of communication but with the validity of a law requiring a candidate for the House of Representatives to deposit "One hundred dollars, in legal tender or in a banker's cheque".

In considering the scope of the Commonwealth's regulatory power over elections, a distinction must be drawn between laws which restrict the freedom of electoral communications by prohibiting or regulating their contents and laws which incidentally limit that freedom by regulating the time, place or manner of communication. "[R]easonable time, place, and manner regulations, which do not discriminate among speakers or ideas" ^[357] are not inconsistent with the conceptions of representative government if those regulations are designed to protect some competing aspect of the public interest and the restraint on freedom of communication is not disproportionate to the end sought to be achieved. But laws which seek to prohibit or regulate the content of electoral communications are in a different category. While the rights which s7 and s24 confer are not absolute, they are so fundamental to the achievement of a true choice by the electorate that a law enacted pursuant to the powers conferred by s51 which seeks to prohibit or regulate the content of electoral communications can only be upheld on grounds of compelling justification.

S95B

Subject to s95A and the free time provisions of the legislation, s95B of the Act prevents the broadcasting or televising of any information concerning political matters from those standing for election at a federal election or from those persons, groups, organisations and corporations who, although not standing for election, wish to exercise their democratic right to influence the outcome of the election. Political matter is defined to mean "matter intended or likely to affect voting in the election or referendum concerned" or "matter containing prescribed material" other than exempt matter. "Exempt matter" is defined in s4 of the Act. 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."

Consequently, s95B prevents the electors from receiving political information, comment and argument which is, or at least could be, vital to the choosing of the members of the House of Representatives and the Senate. It precludes access to two of Australia's most frequently used mediums of communication and thereby significantly hampers the ability of candidates and other interested parties from effectively communicating information, opinions and arguments to the electorate. Indeed, according to the Report by the Senate Select Committee on Political Broadcasts and Political Disclosures ^[358] , "there was broad agreement" that, although television was the most expensive advertising medium, it was also the most effective.

It is not to the point, as the Commonwealth argued, that Pt3D leaves open numerous campaign techniques and methods to candidates and other participants in the election process to get their ideas, policies, arguments and opinions across to the electorate. The effect of Pt3D is to prevent the participants in the election from putting the content of electoral communications to the electorate by means of advertisements on radio and television - a means of communication widely used in the Australian community for the dissemination of information, ideas, arguments and opinions. Parliament may regulate the time, place or manner of electoral communications. It may even prohibit the content of an electoral communication if compelling justification exists. Defamatory, seditious and treasonable statements provide examples of communications which may be prohibited. But having regard to the conceptions of representative government, Parliament has no right to prefer one form of lawful electoral communication over another. It is for the electors and the candidates to choose which forms of otherwise lawful communication they prefer to use to disseminate political information, ideas and argument. Their choices are a matter of private, not public, interest. Their choices are outside the zone of governmental control.

Nor is it to the point that s95A permits the broadcasting and televising in some circumstances of matter which would otherwise be prohibited by Pt3D. S95A provides that nothing in Pt3D prevents a broadcaster from broadcasting a talkback radio program or an item of news or current affairs or a comment on any such item. But this is a matter of no relevance. Leaving aside the difficulty of interpreting the phrase "an item of news or current affairs" in he context of this legislation, s95A restores only part of the freedom of expression and communication which other sections in Pt3D take away. Worse still, it permits discrimination among those who are prohibited by Pt3D from putting their views to the electorate through political advertisements on radio and television. While the effect of the section is that some members of the electorate will be able to get their ideas, policies, arguments and comments before radio and television audiences, it does not follow that those wishing to put the opposite point of view will necessarily be able to do so. Whether or not they are able to do so in time provided by the licensees of radio and television stations will depend entirely upon the decisions of the licensees and those who control the content of the relevant programs.

THE FREE TIME AND POLICY LAUNCH PROVISIONS

The free time provisions of Pt3D grant political parties with representatives in Parliament and political parties contesting the election with at least a prescribed number of candidates the right to make "an advertisement that consists of words spoken by a single speaker (without dramatic enactment or impersonation) accompanied, where the advertisement is televised, by a transmitted image that consists of the head and shoulders of the speaker" ^[359] . The legislation also gives other political parties, groups and candidates the right to apply to the Australian Broadcasting Tribunal for the grant of free time to make such an advertisement. However, the free time rights are restricted: they do not apply to an election until regulations are made working out, among other things, the total free time for that election; they are heavily weighted in favour of the political parties already represented in Parliament - 90 per cent of the time being allocated to these parties; and they are only conferred on candidates and their parties or groups. State and Territory governments, employer and employee associations, business, manufacturing and rural interest groups and public interest organisations as well as the general public are excluded from the use of the free time allocations. When the Bill which became the present Act was introduced into the Parliament, it contained no free time provisions. Significantly, in the course of the Second Reading Speech, the Minister said ^[360] : "The Government has rejected the proposal because it believes that the allocation of time to parties would be inequitable and administratively impracticable. Free time would unfairly advantage the major political and incumbent parties."

The comments which I have made about the free time provisions of Pt3D are equally applicable to Div 4 of the Act which deals with policy launches.

VALIDITY

Consequently, even when s95A and the free time and policy launch provisions are taken into account, s95B represents a constitutionally unacceptable interference with the rights of the electors to be informed of the policies and issues involved in a federal election and the merits and demerits of those policies and issues. As Windeyer J pointed out in Australian Consolidated Press Ltd v Uren ^[361] : "Freedom at election time to praise the merits and policies of some candidates and to dispute and decry those of others is an essential of parliamentary democracy. "

THE CONTENTIONS OF THE COMMONWEALTH

In supporting the validity of Pt3D, the Commonwealth contended that the Parliament could reasonably make the political assessment that the legislation is an appropriate and effective means of dealing with the burgeoning cost of using the electronic media for political campaigning at election time. In moving that the Bill be read a second time, the Minister said ^[362] : "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."

However, the potential for or even the existence of corruption and undue influence in the political process does not amount to compelling justification for the infringements of the constitutional rights of the electors brought about by Pt3D. If the electoral process has been, or is likely to be, corrupted by the cost of television and radio advertising, means less drastic than the provisions of Pt3D are available to eradicate the evil. Unconvincing is the claim that, subject to s95A and the free time and policy launch provisions of Pt3D, a blanket ban on electronic political advertising is needed, or for that matter would be effective, to prevent wealthy contributors from corrupting the electoral process.

If the Australian political process can be corrupted by the cost of political advertising, those bent on corrupting that process will not lack opportunities to achieve their ends even if electronic political advertising is prohibited during an election period. As the Supreme Court of the United States pointed out in Buckley ^[363] , "virtually every means of communicating ideas in today's mass society requires the expenditure of money". Moreover, on this aspect of the justification of the legislation, it needs to be kept in mind that it is not the content of the publications which is the perceived evil; the perceived evil is the conduct of contributors and political officials in colluding to give political preference or favour in return for campaign contributions. The creation of special offences, disclosure of contributions by donors as well as political parties, public funding, and limitations on contributions are but some of the remedies available to overcome the evil which arises not from the giving of information to the electorate or its content but from the conduct of contributors and political officials.

In supporting the validity of the legislation, the Commonwealth also relied on the statement of the Minister that 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" ^[364] . But, accepting that this is so, the need for a "level playing field" cannot justify legislation which bans all political advertising on radio and television whether paid for or not. Still less can it justify legislation which not only bans all political advertisements but through the free time provisions of Pt3D favours the sitting members and their political parties at the expense of the views of those who do not hold political power.

Moreover, before legislation such as Pt3D could be upheld on the "level playing field" theory, it would need to be demonstrated by acceptable evidence, and not merely asserted, that, by reason of their practical control of the electronic media, some individuals and groups so dominate public discussion and debate that it threatens the ability of the electors to make reasoned and informed choices in electing their parliamentary representatives. By itself, domination of the electronic media is not a constitutionally compelling justification for banning the broadcasting of political matter at federal elections any more than a major newspaper accepting advertisements from only one political party would justify banning the publication of political advertisements in that newspaper during the election period.

The Commonwealth also contended that because restrictions on political advertising were not seen as inconsistent with parliamentary democracy in many of the recognised democracies, the provisions of s95B were not inconsistent with the representative democracy which the Constitution embodies. Paid political advertising in the electronic media is prohibited or restricted by various mechanisms in a number of democracies including, for example, Austria, Belgium, Denmark, Finland, France, Ireland, Israel, Italy, Japan, the Netherlands, Norway, Sweden, Switzerland and the United Kingdom. In some democracies including Canada, Ireland, Israel and the United Kingdom, legislation prohibits or restricts paid political advertising. The argument on behalf of the Commonwealth pointed out that all the foregoing countries except Switzerland are parties to the International Covenant on Civil and Political Rights; that the European countries with the exception of Finland are also parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms; and that Canada, Denmark, Ireland, Japan, the Netherlands, Norway and Sweden have express constitutional provisions guaranteeing the right to freedom of expression. Moreover, the Commonwealth stated that it "does not appear that the practice of these States has been criticised before the Human Rights Committee established under the Covenant, nor successfully challenged before the European Court of Human Rights". How then, it was asked, could the provisions of Pt3D be seen as inconsistent with the concept of a representative democracy?

The answer to that rhetorical question lies in the different contexts in which the guarantees of freedom of expression operate in those countries and in Australia. The right to freedom of expression in the instruments to which the Commonwealth drew attention is a general right not limited to any particular subject matter. Moreover, it is a right which is expressed to be subject to the right of the legislature to pass laws for various specified purposes. The right of freedom of communication derived from s7 and s24 of the Commonwealth Constitution, on the other hand, is a paramount right given for the limited purpose of enabling the people of the Commonwealth to choose their representatives in the Federal Parliament. Such power as the Commonwealth has is subject to and not superior to the right of freedom of communication which s7 and s24 confer. No valid analogy exists between the instruments to which the Commonwealth referred and the Commonwealth Constitution.

A more valid analogy would be an instrument on which the Commonwealth placed no reliance - the Constitution of the United States of America. It is a more valid analogy because, like our Constitution, the legislative power of the central government to control elections is subject to the First Amendment guarantee of freedom of speech.

In Mills v Alabama ^[365] , the Supreme Court said of a law that made it an offence for the editor of a paper to publish an editorial on election day urging people to vote a certain way that it would be "difficult to conceive of a more obvious and flagrant abridgment of the constitutionally guaranteed freedom of the press". In Buckley, the Supreme Court held unconstitutional laws imposing restrictions on campaign expenditures by various people notwithstanding that the object of the laws was to prevent the rich from corrupting the political process.

Accordingly, s95B(4) is invalid. Notwithstanding s95(2) which states that it is "the intention of the Parliament that the several provisions of this Part should operate to the extent to which they are capable of validly operating", it must follow that subs(1), subs(2) and subs(3) of s95B fall with subs(4). If s95B(1)-s95B(3) were to stand although s95B(4) was invalid, the Commonwealth, the States, the Territories and their authorities would be precluded from publishing the various classes of matter specified in those subsections although the rest of the community would be free to publish political matter on radio and television. It cannot be accepted that the Parliament intended the section to have a different practical operation upon those governments and their authorities from that which it would have had if the whole section was valid ^[366] . Nor can it be accepted that it was the purpose of s95(2) that a provision of Pt3D should stand although it would have a different practical operation after the invalidation of another provision of that Part.

DOES PT3D REPRESENT A SUBSTANTIAL INTERFERENCE WITH THE FUNCTIONING OF THE STATES?

In my opinion, the provisions of s95D(3) and s95D(4) are invalid in so far as they operate to prohibit the advertising of political matter in an election to a State Parliament or to a local government authority of a State. They are invalid because their immediate object is to control the States and their people in the exercise of their constitutional functions.

At federation, each of the colonies had its own legislature and executive, governed and controlled by a Constitution, based on the institutions of representative government and responsible government. The terms of s106 and s107 of the Constitution necessarily give rise to the inference that, subject to the alteration of the Constitution under s128, the States are to continue as independent bodies politic with their own Constitutions and representative legislatures. S106 provides: "The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State."

S107 provides: "Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be."

To be consistent with the constitutional premise of the States continuing as independent bodies politic with their own Constitutions and representative legislatures, a power conferred by s51 of the Constitution should not be construed as authorising the Commonwealth to make a law whose immediate object is to interfere with the electoral processes authorised by those Constitutions unless the contrary intention is plainly evident in the section. The powers conferred by s51 are conferred "subject to this Constitution". The inference to be drawn from the continuance of the States as independent bodies politic with their own Constitutions and representative legislatures is that, subject to a plain intention to the contrary, the powers of the Commonwealth do not extend to interfering in the constitutional and electoral processes of the States. It is for the people of the State, and not for the people of the Commonwealth, to determine what modifications, if any, should be made to the Constitution of the State and to the electoral processes which determine what government the State is to have. The use of a Commonwealth power to make a law which "discloses an immediate object of controlling" the processes by which the people of the States elect their governments in accordance with their Constitutions should be seen as not "within the true ambit of the Commonwealth legislative power" ^[367] . In Melbourne Corporation v The Commonwealth, the Court held that the power conferred by s51(xiii) to make laws with respect to banking did not authorise a law which provided that except with the consent in writing of the Treasurer "a bank shall not conduct any banking business for a State or for any authority of a State, including a local government authority". Dixon J said ^[368] that the "federal system itself is the foundation of the restraint upon the use of the power to control the States".

His Honour went on to say ^[369] that: "the considerations upon which the States' title to protection from Commonwealth control depends arise not from the character of the powers retained by the States but from their position as separate governments in the system exercising independent functions. But, to my mind, the efficacy of the system logically demands that, unless a given legislative power appears from its content, context or subject matter so to intend, it should not be understood as authorising the Commonwealth to make a law aimed at the restriction or control of a State in the exercise of its executive authority. In whatever way it may be expressed an intention of this sort is, in my opinion, to be plainly seen win the very frame of the Constitution." ^[370] Similarly, in Victoria v Australian Building Construction Employees' and Builders Labourers' Federation ^[371] , Mason J said that unless the nature of a specific power otherwise indicates, a Commonwealth power should be construed so as not to "inhibit or impair the continued existence of the States or their capacity to function".

If the use of a Commonwealth power was valid although its immediate object was to control some aspect of the electoral processes of the State, the functioning of the States as independent bodies politic with their own Constitutions and representative legislatures would be threatened. To use the powers of the Commonwealth to substantially control the electoral processes of the States requires no ingenuity. The postal, telephonic, corporation and interstate commerce powers, as well as the broadcasting and television powers, alone, or in combination, enable the Commonwealth to prevent or regulate the dissemination of political and electoral information to such an extent that the Commonwealth, and not the States, could substantially control the input of information into the State electoral processes. The possibility that a power may be abused is ordinarily no ground for reading down the subject-matter of a Commonwealth power. But it is not irrelevant when the question is whether a Commonwealth power should be construed in a way which affects or interferes with the States in their "position as separate governments in the system exercising independent functions" ^[372] .

In accordance with these principles, s51(v) of the Constitution should not be read as authorising a law whose immediate object is to control the electors of the States in performing functions which are assigned to them by the Constitutions of the States. Even though the law may be a law with respect to a subject-matter described in that paragraph, laws made under s51(v) are made "subject to this Constitution" and cannot operate in respect of areas which the Constitution withdraws from the operation of Commonwealth legislative power.

S95D(3) and s95D(4) are laws aimed at controlling the States and their people in the performance of their functions under the Constitutions of the States. Those subsections prohibit State governments, candidates for office in State elections and other interested parties in State elections from using an otherwise lawful medium to put to the electorate information, ideas, argument and comment "intended or likely to affect voting in the election concerned". For the reasons which I gave in discussing the operation of s95B, s95D(3) and s95D(4) constitute an unacceptable interference with the functions and responsibilities of the people and officials of the States under their Constitutions.

S95D(4) is invalid, therefore, in so far as it applies to elections for the Parliaments of the State. S95D(3) is also invalid. In so far as it applies to the State holding the election in question, it is "a law aimed at the restriction or control of a State in the exercise of its executive authority" ^[373] . It constitutes an interference with the functions of the State as an independent body politic. Moreover, since local government authorities are authorities of the States to which the States have delegated the authority to govern in respect of particular areas of the States, s95D cannot validly apply to their elections. It follows that s95D(3), in so far as it applies to the State holding an election, and s95D(4) are invalid and not authorised by s51(v) of the Constitution.

However, although there is nothing to stop the Parliament from forbidding a broadcaster from broadcasting matter on behalf of the government, or a government authority, of the Commonwealth during a State or local government election, it is difficult to accept that the Parliament intended to bind the Commonwealth if s95D(3) and s95D(4) could not validly apply to State elections. Accordingly, s95D(1) cannot be severed from subs(3) and subs(4) and is also invalid. Likewise, it is difficult to accept that the Parliament intended to prevent broadcasters from broadcasting political advertisements during a State election period on behalf of the governments or government authorities of the Territories and other States if s95D(3) and s95D(4) could not validly apply to State elections. Consequently, s95D(2) and s95D(3) are also wholly invalid.

THE FREE TIME AND POLICY LAUNCH PROVISIONS

It is a necessary consequence of the invalidity of s95B and s95D that the free time and policy launch provisions of Pt3D are also invalid in so far as they apply to referendums and federal, State and local government elections. Notwithstanding s95(2) of the Act, the provisions of Divs 3 and 4 concerning free time and policy launches cannot be severed from s95B and s95D in their application to federal elections and referendums and State and local government elections. It is manifest that the free time and policy launch provisions were intended to ameliorate the general prohibition on political advertising enacted by s95B-s95D. They were not intended to operate independently of the prohibition on political advertising.

Because the free time and policy launch provisions fall with s95B and s95D, it is strictly unnecessary on this branch of the case to decide whether the free time and policy launch provisions constitute an acquisition of property otherwise than on just terms contrary to s51(xxxi) of the Constitution. But since it is necessary for me to do so on the question whether the free time and policy launch provisions are valid in their application to the Territories, I should indicate that those provisions do not contravene s51(xxxi) of the Constitution. In reaching that conclusion, I have had the advantage of reading the judgment of Brennan J I agree with his Honour's reasons on the point.

THE TERRITORIES

To support the validity of s95C, the Commonwealth did not seek to rely on the power conferred by s122 of the Constitution to "make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth". No doubt, the reason that the Commonwealth did not rely on s122 was that both internal territories have been granted self-government. In support of the validity of s95C, the Commonwealth was content to rely on its powers under s51(v) with respect to radio and television. If the Commonwealth had relied on s122, I could see no ground for supposing that s95C was invalid. There is nothing in s122 or anywhere else in the Constitution which suggests that laws made by the Commonwealth for the government of a territory are subject to prohibitions or limitations arising from the concepts of representative government, responsible government or freedom of communication.

Moreover, the decision of this Court in Teori Tau v The Commonwealth ^[374] establishes that the provisions of s51(xxxi) do not control the operation of s122 when it is used to acquire property in a territory.

Nevertheless, the power conferred on the Commonwealth by s51(v) is sufficient to authorise the provisions of s95C unless that power in its application to the Territories is the subject of some prohibition or limitation in the Constitution. Certainly, there is no express prohibition or limitation. Nor can I see any implied prohibition or limitation. Having regard to the existence and terms of s122 of the Constitution, it is impossible to suggest that the Constitution impliedly forbids the powers conferred on the Commonwealth, including s51 powers, from being used in a way which would interfere with the functioning of Territorial governments. Furthermore, the prohibitions in s7 and s24 are not applicable because they apply only to federal elections. Finally, nothing in the Constitution suggests to my mind that there is any implied right of freedom of expression or communication within a Territory or any right in a Territory arising from the institutions of representative government and responsible government. Accordingly, s95C is a valid law of the Commonwealth.

I have already expressed the view that the free time and policy launch provisions of Pt3D do not contravene s51(xxxi) of the Constitution. It follows that Pt3D is valid in its application to the Territories. There is no difficulty in severing the invalid provisions of Pt3D from the provisions of the Part in so far as it applies to the Territories.

ORDERS

In Matter No. S5 of 1992, I would overrule the demurrer except in relation to the application of Pt3D to the Territories. In Matter No. S6 of 1992, I would make the same order in respect of the first paragraph of the demurrer.