Nationwide News Pty Ltd v Wills
Encyclopedia
Nationwide News Pty Ltd v Wills (1992) 177 CLR
1 is a High Court of Australia
case that deals with a number of issues regarding the Australian Constitution
, including freedom of interstate intercourse (section 92), the implied freedom of political communication, and the role of proportionality.
into disrepute. Nationwide News published an article attacking the integrity and independence of the Commission.
Nationwide News argued that the Act infringed the implied freedom of political communications, while the Commonwealth argued that the Act was valid under section 51(xxxv) (conciliation and arbitration power), as well as section 51(xxxix) (express incidental power).
Per Brennan J, the protection in section 92 is given to such things as the movement of people, goods and communications. The essential ingredient is that there is movement across State boundaries, although the movement need not be perceivable. A test can be specified as follows:
Dawson J rejects the proportionality test as suggested by Mason CJ, arguing that it should be a test of sufficient connection, and not proportionality.
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...
1 is a 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...
case that deals with a number of issues regarding the Australian Constitution
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
, including freedom of interstate intercourse (section 92), the implied freedom of political communication, and the role of proportionality.
Background
The Industrial Relations Act 1988 (Cth) made it an offence to bring the Australian Industrial Relations CommissionAustralian Industrial Relations Commission
The Australian Industrial Relations Commission, or AIRC , was a tribunal with powers under the Workplace Relations Act 1996. It was the central institution of Australian labour law...
into disrepute. Nationwide News published an article attacking the integrity and independence of the Commission.
Nationwide News argued that the Act infringed the implied freedom of political communications, while the Commonwealth argued that the Act was valid under section 51(xxxv) (conciliation and arbitration power), as well as section 51(xxxix) (express incidental power).
Interstate intercourse
Although it was not a decisive factor, it was argued that freedom of communication falls under freedom of interstate intercourse.Per Brennan J, the protection in section 92 is given to such things as the movement of people, goods and communications. The essential ingredient is that there is movement across State boundaries, although the movement need not be perceivable. A test can be specified as follows:
- Is there a burden on interstate intercourse?
- What is the purpose of the law? If the purpose of the law is to hinder interstate intercourse, then the law is invalid.
- If not, is there another purpose to the law? If so, is the burden on interstate trade and commerce appropriate and adapted to that purpose?
Implied freedom of political communication
Brennan, Deane, Toohey and Gaudron JJ thought that it was within the conciliation head of power, but that it infringed the implied freedom of political communication. Mason CJ, McHugh and Dawson JJ, however, held that it was outside the head of power.Proportionality
Nationwide News is the key case where the concept of proportionality is discussed. Proportionality is the idea that there should be a reasonable relationship between an end and the means used to achieve that end. It has been used for:- Determining if a law has breached constitutional guarantees.
- Purposive powers, if there is a reasonable relationship between the law and the purpose used to achieve it.
- Non-purposive powers, if there is a sufficient connection to a head of power to fall within its implied incidental power.
Dawson J rejects the proportionality test as suggested by Mason CJ, arguing that it should be a test of sufficient connection, and not proportionality.