Australian Capital Television Pty Ltd v Commonwealth
Encyclopedia
Australian Capital Television v Commonwealth (1992) 177 CLR
106 was a significant court
case
decided in the High Court of Australia
on 30 September 1992. It concerned the constitutional validity of Part IIID of the Broadcasting Act 1942, which regulated political advertising during election campaigns, and required broadcasters to broadcast political advertisements free of charge at other times. The High Court found the laws to be invalid, since they contravened an implied right to freedom of political communication (note there is no guarantee of freedom of speech) in the Australian Constitution.
("the Commonwealth") under Prime Minister
Bob Hawke
passed the Political Broadcasts and Political Disclosures Act 1991, which inserted part IIID into the Broadcasting Act 1942. The changes had a number of effects, the most important of which prohibited the broadcasting of politically related material on electronic media such as radio
and television
during the period leading up to a State or Federal election
(except in news, current affairs
or talkback programs). The laws also obliged broadcasters to provide "free time" to political parties to air advertisements. Kim Beazley
, then the Minister for Transport and Communications, said that the changes were designed to limit corruption, and prevent donors to political parties from exerting undue influence, by restricting the amount of political advertising that could be broadcast. He said that due to the practical cost of advertising, it was only the major parties and very wealthy individuals who could afford to broadcast advertisements. The Government said they had wanted to avoid a situation such as that in the United States, where it is virtually impossible for anyone but the very rich to participate in the political process.
With some exceptions, the laws prohibited broadcasters from broadcasting matter for or on behalf of the government or government agencies, and from broadcasting political advertisements ("matter intended or likely to affect voting in the election", or matter explicitly referring to the election) on behalf of themselves or other individuals during an election period. The "free time" would be divided between the parties based on the amount of representation they had in the Parliament
, with only five percent available to other groups, who had to apply for an allocation of free time.
The eight plaintiff
s in the case were commercial television broadcasters who held broadcasting licences under the Broadcasting Act. They asked the High Court to declare that Part IIID of the act was invalid. In a related action which was heard at the same time, the Government of New South Wales
also challenged the laws, particularly their application to by-election
s. The Government of South Australia
intervened in the case in support of the Commonwealth.
, who acted for the plaintiffs, paraphrasing former Justice Isaac Isaacs
argued that the principle that governments are responsible to the citizens who elect them "permeates the Constitution, forming part of the fabric on which the written words of the Constitution are superimposed," and as such, all voters should be entitled to make comment on political issues.
The plaintiffs argued that since a right to free political communication was recognised in other parliamentary democracies
, such as in the United States by the First Amendment to the United States Constitution
, and in Canada by the Charter of Rights and Freedoms
, it should be recognised in Australia. They said that because the provisions in Part IIID limited the allocation of "free time" to people or groups already represented in the Parliaments, new parties or people not in the Parliament would not be able to express their views.
The Commonwealth argued that the laws enhanced rather than diminished the electoral process, because they prevented corruption, and allowed parties which did not have large amounts of money to have access to radio and television broadcasting. They said that the Parliament has valid powers to protect the integrity of the electoral process under sections 10, 29, 31, 51(36) and 51(39) of the Constitution. Furthermore, they argued that even if there was some implied right to freedom of political communication, this could not override valid legislation. The Commonwealth also pointed out that similar laws operated in countries such as the United Kingdom, France, Norway and Sweden, and that countries such as Canada, Germany, Japan and New Zealand had a system of allocating free broadcasting time for political purposes during election periods.
The Government of South Australia, who intervened in support of the Commonwealth, said that if the framers of the Constitution had intended to include provisions for a right of free speech as in the United States Constitution, they would have done so. They said that although some freedom of communication could reasonably be implied into the Constitution, the parts of the Act in question did not have the effect of preventing "free and meaningful elections" from taking place, and so the laws were not invalid.
The High Court agreed that the new part IIID of the Broadcasting Act had the effect of limiting the freedoms previously enjoyed by citizens to publicly discuss political matters. However, the question remained as to whether there was some sort of Constitutional basis for these freedoms, or whether the Commonwealth was justified in restricting them. While the court agreed that similar laws had been put in place overseas, that did not change the fact that the laws impaired freedom of communication, and privileged those political parties or interest groups who were already represented in the Parliament. The laws would not only disadvantage candidates challenging sitting members, but would severely hinder groups such as trade union
s, charities
or employers' groups, who may very well have a legitimate desire to make political statements.
, has to be done "on just terms."
The Commonwealth argued that the laws made no unjust acquisition of property, since broadcasting licences were not immune to being modified by the Parliament. They said that it was fair and just to require broadcasters to provide a limited amount of free service in the public interest. In any event, the Commonwealth suggested that "free time" granted by the Act was not a form of property anyway, since it could not be transferred to other people, one of the essential features of any form of property.
Ultimately the court did not decide on this issue, although Justice Brennan
said that he agreed with the Commonwealth's argument that the "free time" was not a form of property.
, and contravened sections 106 and 107 of the Constitution which protects the individual State Constitutions. They said that to interfere with the right of State Governments to make political advertisements went far beyond any legitimate power given to the Parliament of Australia
by the Constitution. They also said that in any event, the changes to the Act should not apply to by-elections.
The Commonwealth argued that Part IIID of the Act did not single out the States, nor interfere with their proper activities, since State elections were treated in exactly the same way as Federal elections were.
The court also decided that the relevant laws, contained in Part IIID of the Broadcasting Act, were invalid because there was no reasonable justification for the way they restricted the freedom of political communication. The court decided that the laws also impaired certain functions of the States in terms of their rights to make political advertisements, and so the laws were also invalid for that reason.
In discussing the nature of representative government, Chief Justice Mason expressed the view that although the Constitution originally drew its authority from the British Imperial Parliament
, it would indeed be appropriate in modern times to recognise that Australian sovereignty derives its force from the Australian people.
Commonwealth Law Reports
The Commonwealth Law Reports are the authorised reports of decisions of the High Court of Australia. The CLR are published by the Lawbook Company, a division of Thomson Reuters...
106 was a significant court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
case
Legal case
A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal...
decided in the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
on 30 September 1992. It concerned the constitutional validity of Part IIID of the Broadcasting Act 1942, which regulated political advertising during election campaigns, and required broadcasters to broadcast political advertisements free of charge at other times. The High Court found the laws to be invalid, since they contravened an implied right to freedom of political communication (note there is no guarantee of freedom of speech) in the Australian Constitution.
Background to the case
In 1991, the Government of AustraliaGovernment of Australia
The Commonwealth of Australia is a federal constitutional monarchy under a parliamentary democracy. The Commonwealth of Australia was formed in 1901 as a result of an agreement among six self-governing British colonies, which became the six states...
("the Commonwealth") under Prime Minister
Prime Minister of Australia
The Prime Minister of the Commonwealth of Australia is the highest minister of the Crown, leader of the Cabinet and Head of Her Majesty's Australian Government, holding office on commission from the Governor-General of Australia. The office of Prime Minister is, in practice, the most powerful...
Bob Hawke
Bob Hawke
Robert James Lee "Bob" Hawke AC GCL was the 23rd Prime Minister of Australia from March 1983 to December 1991 and therefore longest serving Australian Labor Party Prime Minister....
passed the Political Broadcasts and Political Disclosures Act 1991, which inserted part IIID into the Broadcasting Act 1942. The changes had a number of effects, the most important of which prohibited the broadcasting of politically related material on electronic media such as radio
Radio
Radio is the transmission of signals through free space by modulation of electromagnetic waves with frequencies below those of visible light. Electromagnetic radiation travels by means of oscillating electromagnetic fields that pass through the air and the vacuum of space...
and television
Television
Television is a telecommunication medium for transmitting and receiving moving images that can be monochrome or colored, with accompanying sound...
during the period leading up to a State or Federal election
Elections in Australia
Australia elects a legislature the Parliament of the Commonwealth of Australia using various electoral systems: see Australian electoral system. The Parliament consists of two chambers:...
(except in news, current affairs
Current affairs (news format)
Current Affairs is a genre of broadcast journalism where the emphasis is on detailed analysis and discussion of news stories that have recently occurred or are ongoing at the time of broadcast....
or talkback programs). The laws also obliged broadcasters to provide "free time" to political parties to air advertisements. Kim Beazley
Kim Beazley
In the October 1998 election, Labor polled a majority of the two-party vote and received the largest swing to a first-term opposition since 1934. However, due to the uneven nature of the swing, Labor came up eight seats short of making Beazley Prime Minister....
, then the Minister for Transport and Communications, said that the changes were designed to limit corruption, and prevent donors to political parties from exerting undue influence, by restricting the amount of political advertising that could be broadcast. He said that due to the practical cost of advertising, it was only the major parties and very wealthy individuals who could afford to broadcast advertisements. The Government said they had wanted to avoid a situation such as that in the United States, where it is virtually impossible for anyone but the very rich to participate in the political process.
With some exceptions, the laws prohibited broadcasters from broadcasting matter for or on behalf of the government or government agencies, and from broadcasting political advertisements ("matter intended or likely to affect voting in the election", or matter explicitly referring to the election) on behalf of themselves or other individuals during an election period. The "free time" would be divided between the parties based on the amount of representation they had in the Parliament
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
, with only five percent available to other groups, who had to apply for an allocation of free time.
The eight plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
s in the case were commercial television broadcasters who held broadcasting licences under the Broadcasting Act. They asked the High Court to declare that Part IIID of the act was invalid. In a related action which was heard at the same time, the Government of New South Wales
Government of New South Wales
The form of the Government of New South Wales is prescribed in its Constitution, which dates from 1856, although it has been amended many times since then...
also challenged the laws, particularly their application to by-election
By-election
A by-election is an election held to fill a political office that has become vacant between regularly scheduled elections....
s. The Government of South Australia
Government of South Australia
The form of the Government of South Australia is prescribed in its constitution, which dates from 1856, although it has been amended many times since then...
intervened in the case in support of the Commonwealth.
The case
The most important argument made by the plaintiffs was that the new laws interfered with a right to free political speech which was implied in the Constitution. They also argued that the parts of the Act requiring that broadcasters give "free time" to certain people was an unjust acquisition of property. The Government of New South Wales argued that the laws were discriminatory against the states and they interfered with the proper business of State Governments.Freedom of speech
The principal argument from the plaintiffs was that the changes to the Broadcasting Act contravened an implied right to freedom of participation and communication in political processes. They argued that this right to free political speech arose from the system of representative government which is provided by the Constitution, or alternatively, it arose from the "common citizenship of the Australian people." Sir Maurice Byers QCQueen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
, who acted for the plaintiffs, paraphrasing former Justice Isaac Isaacs
Isaac Isaacs
Sir Isaac Alfred Isaacs GCB GCMG KC was an Australian judge and politician, was the third Chief Justice of Australia, ninth Governor-General of Australia and the first born in Australia to occupy that post. He is the only person ever to have held both positions of Chief Justice of Australia and...
argued that the principle that governments are responsible to the citizens who elect them "permeates the Constitution, forming part of the fabric on which the written words of the Constitution are superimposed," and as such, all voters should be entitled to make comment on political issues.
The plaintiffs argued that since a right to free political communication was recognised in other parliamentary democracies
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
, such as in the United States by the First Amendment to the United States Constitution
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
, and in Canada by the Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
, it should be recognised in Australia. They said that because the provisions in Part IIID limited the allocation of "free time" to people or groups already represented in the Parliaments, new parties or people not in the Parliament would not be able to express their views.
The Commonwealth argued that the laws enhanced rather than diminished the electoral process, because they prevented corruption, and allowed parties which did not have large amounts of money to have access to radio and television broadcasting. They said that the Parliament has valid powers to protect the integrity of the electoral process under sections 10, 29, 31, 51(36) and 51(39) of the Constitution. Furthermore, they argued that even if there was some implied right to freedom of political communication, this could not override valid legislation. The Commonwealth also pointed out that similar laws operated in countries such as the United Kingdom, France, Norway and Sweden, and that countries such as Canada, Germany, Japan and New Zealand had a system of allocating free broadcasting time for political purposes during election periods.
The Government of South Australia, who intervened in support of the Commonwealth, said that if the framers of the Constitution had intended to include provisions for a right of free speech as in the United States Constitution, they would have done so. They said that although some freedom of communication could reasonably be implied into the Constitution, the parts of the Act in question did not have the effect of preventing "free and meaningful elections" from taking place, and so the laws were not invalid.
The High Court agreed that the new part IIID of the Broadcasting Act had the effect of limiting the freedoms previously enjoyed by citizens to publicly discuss political matters. However, the question remained as to whether there was some sort of Constitutional basis for these freedoms, or whether the Commonwealth was justified in restricting them. While the court agreed that similar laws had been put in place overseas, that did not change the fact that the laws impaired freedom of communication, and privileged those political parties or interest groups who were already represented in the Parliament. The laws would not only disadvantage candidates challenging sitting members, but would severely hinder groups such as trade union
Trade union
A trade union, trades union or labor union is an organization of workers that have banded together to achieve common goals such as better working conditions. The trade union, through its leadership, bargains with the employer on behalf of union members and negotiates labour contracts with...
s, charities
Charitable organization
A charitable organization is a type of non-profit organization . It differs from other types of NPOs in that it centers on philanthropic goals A charitable organization is a type of non-profit organization (NPO). It differs from other types of NPOs in that it centers on philanthropic goals A...
or employers' groups, who may very well have a legitimate desire to make political statements.
Acquisition of property
The plaintiffs also argued that to force broadcasters to give portions of "free time" to the represented political parties and members of parliament had the effect of taking away their right to charge money for broadcasting advertisements. They suggested that taking away their advertising time and in effect giving it to the legislators constituted an acquisition of property by the Commonwealth, which according to section 51(xxxi) of the ConstitutionSection 51(xxxi) of the Australian Constitution
Section 51 of the Constitution of Australia is a subsection of Section 51 of the Constitution of Australia providing that the Commonwealth has the power to make laws with respect to "the acquisition of property on just terms from any State or person for any purpose in respect of which the...
, has to be done "on just terms."
The Commonwealth argued that the laws made no unjust acquisition of property, since broadcasting licences were not immune to being modified by the Parliament. They said that it was fair and just to require broadcasters to provide a limited amount of free service in the public interest. In any event, the Commonwealth suggested that "free time" granted by the Act was not a form of property anyway, since it could not be transferred to other people, one of the essential features of any form of property.
Ultimately the court did not decide on this issue, although Justice Brennan
Gerard Brennan
Sir Francis Gerard Brennan, AC, KBE, QC , is an Australian lawyer, judge and 10th Chief Justice of Australia. He is father to Jesuit priest and lawyer Frank Brennan....
said that he agreed with the Commonwealth's argument that the "free time" was not a form of property.
Interference with State rights
The Government of New South Wales, in addition to supporting the claims of the other plaintiffs, also argued that Part IIID of the Broadcasting Act was invalid because it interfered with the executive functions of the StatesStates and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
, and contravened sections 106 and 107 of the Constitution which protects the individual State Constitutions. They said that to interfere with the right of State Governments to make political advertisements went far beyond any legitimate power given to the Parliament of Australia
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
by the Constitution. They also said that in any event, the changes to the Act should not apply to by-elections.
The Commonwealth argued that Part IIID of the Act did not single out the States, nor interfere with their proper activities, since State elections were treated in exactly the same way as Federal elections were.
The decision
The court decided that a right to freedom of political communication was essential to the system of representative government provided for in the Constitution. The court expressed the view that the reason why Australia does not have a bill of rights is because the framers of the Constitution believed that since Australia had a system of representative government, which gave all voters an equal share in political power, laws to protect rights were simply not necessary. To undermine the system of representative government was contrary to this trust which the people gave to the Parliaments, and was not permitted by the Constitution. Although this right is not an absolute one, it is still a right which allows for free and public political discussion.The court also decided that the relevant laws, contained in Part IIID of the Broadcasting Act, were invalid because there was no reasonable justification for the way they restricted the freedom of political communication. The court decided that the laws also impaired certain functions of the States in terms of their rights to make political advertisements, and so the laws were also invalid for that reason.
Consequences
The case was one of the earliest in a series of cases in which the High Court found implied rights in the Constitution. This trend reached a high-point in Theophanous, which found that the implied right to freedom of political communication could be used as a defence in a defamation action. Although that is no longer the case, the limited right to freedom of communication remains.In discussing the nature of representative government, Chief Justice Mason expressed the view that although the Constitution originally drew its authority from the British Imperial Parliament
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
, it would indeed be appropriate in modern times to recognise that Australian sovereignty derives its force from the Australian people.