Australian Capital Television Pty Limited & Ors v The Commonwealth of Australia; The State of New South Wales v The Commonwealth of Australia

[1992] HCATrans 93

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No SS of 1992

B e t w e e n -

AUSTRALIAN CAPITAL TELEVISION

PTY LIMITED

First Plaintiff

PRIME TELEVISION (SOUTHERN)

PTY LIMITED

Second Plaintiff

TWT LIMITED

Third Plaintiff

TASMANIAN TELEVISION LIMITED

Fourth Plaintiff

SOUTHERN CROSS TELEVISION

(TNT 9) PTY LIMITED

Fifth Plaintiff

PRIME TELEVISION (VICTORIA)

PTY LIMITED

Sixth Plaintiff

QUEENSLAND TELEVISION LIMITED

Seventh Plaintiff

Television(2) 207 19/3/92

TCN CHANNEL NINE PTY LIMITED

Eighth Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry

Sydney No S6 of 1992

B e t w e e n -

THE STATE OF NEW SOUTH WALES

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

and

THE AUSTRALIAN BROADCASTING

TRIBUNAL

Second Defendant

Demurrers

MASON CJ

BRENNAN J

DEANE J

DAWSON J

TOOHEY J

GAUDRON J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 19 MARCH 1992, AT 9.46 AM

(Continued from 18/3/92)

Copyright in the High Court of Australia

Television(2) 208 19/3/92

MASON CJ: Yes, Sir Maurice?

SIR MAURICE:  Your Honours, might I just begin by drawing to

Your Honours attention the decision of the English

Court of Appeal in a case of Derbyshire County

Council v Times Newspapers Limited, which so far as

we can gather is, at the moment, not reported. The

report, at first instance however, is in (1991)

4 All ER 795. We have handed to Your Honours

photocopies of the judgment that we have obtained.

Now, at pages 8 to 11 and 23 to 27 - - -

DEANE J:  What is the date that is written at the top,

Sir Maurice, is it Wednesday the 19th February?

SIR MAURICE:  Or is it the 10th, Your Honour, it is

Wednesday, yes, Your Honour.

DEANE J: That will give the clue.

SIR MAURICE:  Your Honour, I think it is either the 19th or

the 10th.

TOOHEY J: Wednesday the 19th.

SIR MAURICE:  The 19th, I am indebted to Your Honour. So

that is the date of delivery.

We do not want to read it to Your Honours. It

was a decision concerned with the application of

the European Convention relating to rights and free

speech and it arose in the context of the question

whether a municipal or county council, I would

think, could sue for libel.

In that context, the questions of the nature of the right of free expression in a democratic

society were referred to and it includes a

reference also, in the judgment of

Justice Butler-Sloss to a decision of this Court in

Lord Justice Balcombe, and there is reference to a	Fairfax. I beg Your Honours' pardon, it is The relevant passage begins at page 23 -
number of cases including the American cases,
Canadian cases:  New York Times v Sullivan.
Your Honours, there is a reference to Fairfax but
at the moment I cannot put my finger on it.

BRENNAN J: There is one on page 9 of

Lord Justice Butler-Sloss.

SIR MAURICE:  I thought so, Your Honour. I was persuaded

that was not the case.

MASON CJ: It was a speech.

BRENNAN J: It was a speech made by Lord Mason, I think.

Television(2) 209 SIR M. BYERS, QC 19/3/92

SIR MAURICE:  At the bottom of page 9, is it, Your Honour?

DEANE J: It is the bottom of page 24, the first judgment.

SIR MAURICE:  I am indebted to Your Honour. At least,

Your Honour they kept in touch because it says "Now

Chief Justice".

MASON CJ: Yes, they kept in touch there. Perhaps later on

it may be more prophetic.

SIR MAURICE:	Your Honour, and then they say cited with approval, and that does not lend it any greater
authenticity, of course.  So we would remind
Your Honours of that case and - - -

BRENNAN J: For what purpose, Sir Maurice?

SIR MAURICE:  To support the notion that in a democracy the

right to freedom of speech is part of the fabric of
society. In other words, it is unlike other

specific freedoms, like jury trial, religion and so

on. But free speech in a democratic society is of

the essence of the society. It is woven into the

fabric. And so when one thinks of the way the

Constitution was built, it was built to give effect

by people living in societies which were democratic

in which freedom of speech existed, and who were

creating the new society which was to be

democratic, representative and responsible, and

thus in which the freedom of speech was an

essential. It did not need to be spelt out. It

was there, as it were, in the notion of the

creation of the democratic society.

Your Honour, any other view is, with great respect to my learned friends, just nonsense.	You
cannot have a democracy where the voter may be
gagged and blindfolded. That is just nonsense.	So
clearly, in our respectful submission, when one

understands that, one understands more readily why

it was that such as Professor Harrison Moore says,

and it is in the first edition at page 327 to 329.

I do not want to read it to Your Honours again

because I think I have read it.

MASON CJ:	I was going to say, Sir Maurice, despite the disclaimers, one cannot help but feel that
Article 10 of the European Convention on Human
Rights hung rather heavily over this decision. In other words, would it have been the same?

SIR MAURICE: Well, with the English Parliament, one has a

different series of propositions and the

difference, Your Honour, in our respectful

submission, derives from the difference in the two

societies. Here, we have a rigid Constitution and

Television(2) 210 SIR M. BYERS, QC 19/3/92

one has a Parliament therefore with limited powers
and to speak, as my learned friend the Solicitor

has done, and there are volumes handed up to

Your Honours about sovereignty of Parliament - to

speak of sovereignty of Parliament in that context

is just to misunderstand the Constitution.

Parliament is not sovereign. The Constitution is

sovereign and the government which it creates is

government under the Constitution.

So when one finds, written into the new

Commonwealth, the democratic system of government

as an absolute, which Parliament cannot alter,

unlike the United Kingdom where Parliament can

alter it, the theory of sovereignty of Parliament -

I will give Your Honour a reference to a very

interesting passage in Bryce's Constitution of the

United States referred to by Mr Justice Harlan in

Robertson v Baldwin. He says the mark of the

sovereignty of the British Parliament was that it

was irresponsible and omnipotent and that is what

made it sovereign because it, in a sense, had

received from the Commons, or the people, their

legislative power in the totality. And so, as he

goes on - and this is set out at pages 296 and 297

- the Parliament could abolish itself and it could

create a dictatorship or some new structures of

society.	None of those choices are available to
our Parliament.	You cannot have a septennial act,

that is nonsense, so how can you have a - that is

at vol 165 of the United States Reports at pages

296 and 296.

I am conscious of my time, Your Honour. All I

would wish to point out is that Bryce says on
page 296:

In point of legal theory it is the nation, being the historical successor of the Folk

Moot of our Teutonic forefathers. Both

practically and legally, it is to-day the only

of the nation; and is, therefore, within the and the sufficient depository of the authority sphere of law, irresponsible and omnipotent."

Justice Harlan says on the opposite page, about one

third of the way down, having quoted references

from Bryce to Magna Carta, Bill of Rights and so

on, as being merely Acts of the Parliament and

hence can be repealed and changed at any moment.

He goes on and says:

Parliament, he further says, "can abolish when it pleases any institution of the country, the Crown, the House of Lords, the Established

Church, the House of Commons, Parliament

itself."

Television(2) 211 SIR M. BYERS, QC 19/3/92

When one is talking about the parliamentary

sovereignty, that is the notion. You cannot talk about parliamentary sovereignty in the Australian Constitution. It is just a contradiction of the

language of the Constitution.

Your Honours, may I now just refer to two

cases. I do not wish to read them; I will give

references to Your Honours. They are occasioned by

questions that Your Honour Justice Gaudron directed

to ascertaining the position of the exclusion of

interested parties.	One of those is First National
Bank of Boston v Bellotti, 435 US.	The relevant

passage is at pages 790 to 791, and also

footnote 31.

What Their Honours say is that where the

Massachusetts law, I think, excluded a banking

corporation from making any submissions upon a

local referendum as to banking - they said that is

struck down by the First Amendment, the right of

free speech, which the majority of course in

Robertson v Baldwin say just gives effect to the

previous notions inherited from, if they use their

quotation, our English forefathers, their

guarantees and so on. I do not think I should take

Your Honours' time reading that, but Your Honours

will find that passage.

The other decision is a decision of the

Alberta Court of Queens Bench Mr Justice Medhurst.

It is National Citizens' Coalition Inc. v

Attorney-General for Canada, 11 DLR (4th) 481.	The
relevant part of the headnote says that:

Canada
Sections 70.1(1) and 72 of the than registered parties or candidates, from incurring election expenses and promoting or

opposing parties or candidates in, inter alia,

printed advertisements, during an election

campaign, are inconsistent with the guarantee

of freedom of expression in section 2(b) of the Canadian Charter of Rights and Freedoms and are of no force or effect to the extent of

the inconsistency.

And Your Honours, the learned judge discusses the

authorities to which we have referred Your Honours

in-chief, which were authorities discussing the

nature of the government that Canada possessed
under the British North America Act - that is the

Alberta case and a number of other cases, as I am

told - I am just trying to find the page reference,

Your Honours, and also Buckley v Valeo.

Television(2) 212 SIR M. BYERS, QC 19/3/92

Now, what we say is, of course, that is the

same as what our Constitution provides for. When I

say, that is the same, I mean freedom of speech.

Yes, Your Honour, the passage begins at 492, where the learned judge Mr Justice Cannon refers to

references in re Alberta at the bottom of page 492.

At page 493 to Sir Lyman Duff, and he refers to a

number of other cases.

Now, Your Honours will not be surprised to

observe that, contrary to the piece of paper that

the Commonwealth handed up about the Canadian
cases, His Honour treats that language in the same

way as the plaintiffs treated it and as, with

respect, is its obvious meaning. Now, all we want

to say about the piece of paper that my friend, the

learned Solicitor for the Commonwealth, handed up

is that all one has to do about the Canadian cases
is to compare the text with a gloss, and it is

apparent the gloss is wrong, and might I just say

one other thing, Your Honour, in another document

there is a gloss on Burns v Ransley, and I will

give Your Honour a reference to the gloss. The

document is Commonwealth Comments on Broadcasters'

Submissions, Part 5 - Freedom of Communication, and

it is at page 8, paragraph 10. Then, at 10.2 they

proceed by quoting part of a passage of

Chief Justice Latham in Burns v Ransley:

"I agree that the Commonwealth Parliament has

no power to pass a law to suppress or punish

political criti9ism" -

which is completely clear and unqualified. Now,

what they say, "Well, he did not really mean that,

he meant something different". Now, all we would

say, Your Honour, about that is that one need only
compare the paragraph in the judgment with the

gloss in this document, to see that the gloss is in

error.

Now, Your Honours, perhaps there is one other

thing I should say here, that in the gloss the

Commonwealth has submitted about the United States

cases, and this is only one illustration, at the

bottom of page 3, the statement is made: "That a

broadcaster is not required, by the first
amendment, to accept paid editorial advertisements,
notwithstanding its acceptance of paid commercial

advertisements". I am not quite sure what that

means but, however, that is what it says and it

goes on, "individual political parties and

candidates have no first amendment right of access

to broadcasting for political advertising

purposes". Now, Your Honour, that is quite wrong.

What the cases say is that one individual in the

Television(2) 213 SIR M. BYERS, QC 19/3/92

United States may not assert against another

individual in the United States constitutional

rights, that is all it says, which is quite reverse

of the proposition contended for.

Your Honours, I should hand up - because I

think we promised to do so, even if only by way of

an interjection - copies of the document "Who pays

the piper calls the tune" which my learned friend the Solicitor for the Commonwealth was rather coy

about but we can hand that up to Your Honours'

tipstaves. I do not want to go through it in

detail or, indeed, at all but I am told it is a

joint parliamentary report. Again, like every one

of these, it has dissentients. Every report has

dissentients.

Indeed, Your Honours, the executive - when my

learned friend speaks so eloquently, as he does -

my learned friend the Solicitor for the

Commonwealth - about corruption, that is spoken

with a forked tongue on that very issue. Even in

the documents my learned friend handed up, the

document in question is Index of Commonwealth

Materials, Part One, if Your Honours return to

page 30 which is a ministerial statement, second

reading speech, about the Political Broadcasts and

Political Disclosures Bill, then in a different

form, because the free time provisions went in in

the Senate.

When addressing the representatives, the

minister said, if Your Honours take page 30, at the

bottom right-hand corner, under a quotation, they

say:

The Committee considered a number of options

for dealing with the problem of potential

corruption stemming from campaign costs.	The
Committee recommended that a system of free
time for party political broadcasts be offered

to registered parties and candidates by

broadcasters who would provide air time free

of charge.	The proposal was strongly
criticised at the time it was released.	Many
of the criticisms had more to do with the
protection of self-interest than a fair
assessment of the proposal.	The Government

has rejected the proposal because ..... it would

be inequitable and administratively

impracticable. Free time would unfairly

advantage the major political and incumbent

parties.

When it came back from the Senate with a free time

provision in, the government spoke with another

Television(2) 214 SIR M. BYERS, QC 19/3/92

voice. So really, one must ask oneself, "What is

the validity of this - not what is in the Act, but

asserted justification for the Act?" Now,

Your Honour, that is all I want to say about

the - - -

BRENNAN J:  What do you say to the argument, Sir Maurice,

that the minimizing or prohibition of corruption

deriving from the necessity to raise and expend on

media advertising large sums of money can be dealt

with by the Parliament in whatever way seems best

suited to it, provided there is left to the

community a sufficient means of communication to

allow the casting of informed votes?

SIR MAURICE: Well, I say it is nonsense. If Your Honour

wants to know what I say, that is what I say.

BRENNAN J: At least it is not monosyllabic.

SIR MAURICE:  Your Honour, there is written into the

Constitution a right, so we submit, which is

insusceptible of diminution to freedom of

expression.	Now, it has a number of specific
applications.	One is clearly the right of the

elector in casting his vote to participate in and

be aware of political discussion about the
election, because otherwise you cannot have an
informed vote, obviously. That is one of them.

The other one is the right to call in aid the judicial power. Another one is the right to be in

touch with one's representatives, and particularly

in a time when there is a dispute between the

Executive Government and the legislature, the Lower

House, there is a right to say to your representative, "Either cast them out or maintain

them", so that this is an essential and continuing

right.

And really, when my learned friend talks about

put a referendum to the people without telling the	referendum, how is it possible to say that one can
people what it is about. And how is it possible to
say that the States which have a right to intervene
in this Court on constitutional questions have no
constitutional right to speak on referendum which could affect their very existence. That is just nonsense.

Your Honours, in the Australian Assistance

Plan case, Your Honour the Chief Justice derived

the right of the States to intervene in

constitutional questions from the Constitution.	I
mean, it is not a right deriving only from a
judicial power; it is a right deriving from their
position in the Constitution. So, having that
right, how is it consistent then to say, well on a

Television(2) 215 SIR M. BYERS, QC 19/3/92

referendum - which after all we are talking about

section 128, which gives no power to close off

discussion, no power, but the States have no right

of intervention.

The report, Your Honour, is in State of

Victoria v The Commonwealth, 134 CLR.

Their Honours the Chief Justices - would

Your Honour just pardon me a moment; I thought I

had - - -

MASON CJ:  It is at the end of the judgment, the passage you

are looking for.	I think it is the last page of
the judgment.

SIR MAURICE:  Your Honour, I cannot put my hand - I am

terribly sorry.	I will get Mr Gageler to find it;
I want to give Your Honour the page reference.	But

that is universally accepted as being the correct

proposition.	I think perhaps it is at page 402,
Your Honour:

The final comment which should be made is that if the traditional procedure -

no, I do not think that is it. I really do not

think that my learned friend, for a change, has

given me the right passage, but Your Honour, I do

not want to delay Your Honours. It is at the end

of the judgment and Your Honour does found it on

the Constitution and Your Honour says, well that
enables them to challenge and exercise the

appropriation powers.

MASON CJ:	You better keep your junior under control.
SIR MAURICE:	My learned friend, the special descendent of

Dr Cockburn, as he claimed somewhat proudly,

referred to my arguments as, I think, metaphorical

or amorphous, I am not sure quite which, or perhaps
both; "floating", I think he said.	Now,

Your Honour, I do not think Mr Gageler is

"floating" yet, but he is edging off I can see.

Now Your Honour, that is all I think I want to

say about the series of documents that Your Honours

have received from the hands of the Commonwealth

Crown. They do not advance the propositions; they

do not even really consider Ashby v White:

silence, not a word. The observations following or

consistent with Ashby v White of Mr Justice Isaacs

and Judge McEwen - not a word.

The decision of the supreme court in Robertson

v Baldwin, not a word. And the same, if I might

say so, with great respect, is apparent in the

submissions from the Solicitor for South Australia.

Television(2) 216 SIR M. BYERS, QC 19/3/92

He has never faced Ashby v White, which always is

talking about individual personal rights; that is

of the essence of it.

Now, can I then, Your Honours - and I want to

be as quick as I can - now turn to what I would

wish to say in answer to the learned Solicitor for

South Australia. Now, what we say is this,

Your Honour: we say, first of all, it is apparent from almost 300 years of history, the words of the Constitution, that the right of the voter is a

personal right. It is apparent that the

Constitution is talking about an informed vote and

it is apparent the Constitution is talking about a

democratic society, where there is freedom of

speech, and it speaks of that as a right. If it is

not a right it is not there and it is just nonsense

to say you can have a democratic society with no

freedom of speech. That is a contradiction in

terms. Now, Your Honour, what my friend suggests

in lieu of the floating and amorphous argument for

the plaintiffs is this, and this is the precise

statement, Your Honours, that is in paragraph 5.

He says:

The proper approach is not to ask what are the

assumptions which were made by the framers of

the Constitution, and then to express them as

affirmative rights -

something we never did, we just looked at the

language of the text, however -

but to consider whether the particular law in

its operation prevents what seems to be a

Constitutional predicate - an elected

Parliament which requires that electors and candidates be able to participate in the

conduct of the election -

how? -

in a meaningful way.

Well, Your Honour - now obviously what my learned

friend the Solicitor has done is taken the process

and said, "We just looked at the process, you do

not worry what the process is about", and yet

really the process is the fructification of the

individual right to vote. And when one talks about

participation in a "meaningful" way, that cannot be
participation by a voter in ignorance of the issue.

And if that is right, how can it be said that the

Parliament can legislate to throw the voter into a corner and close the information which it is necessary for a valid vote.

Television(2) 217 SIR M. BYERS, QC 19/3/92

Not only what he wishes to say, not only what

the candidates wish to say, because this provision

does not allow the candidates a word except as a

talking head. But, apart from that, the candidates

are shut off from this medium and it does not allow

interested parties to have a say. So what it does

is just closes off discussion and it closes off
discussion at the very time of the election and for
its duration. That is all I want to say about my

learned friend the Solicitor from South Australia.

Your Honours, can I now go crab-wise, perhaps,

to what my learned friend Mr Dennis Rose QC said.

First of all, about section 92 - I beg Your

Honours' pardon, I promise to stay clear of

section 92. About section 129, my learned friend

says, referring to that moneylenders case in Ocean

Road, 109 CLR, that section 129 is talking about

the Act as amended. We say that is quite wrong,

that section 129 operates in a continuous present.

So if you look to what it says, it says:

(1) Every licence granted or deemed to have

been granted under this Act shall be subject

to the provisions of this Act and the
regulations so far as they are applicable to

the licence, and those provisions shall be

deemed to be incorporated in the licence as

terms and conditions of the licence.

(2) A reference in this section to a licence

includes a reference to a permit -

so that does not matter; subsection (1) does.

So it is talking in a continuous present. So

that when you get your licence you have the Act as

it then stands. It is not talking about a future

amendment. It is not saying that your statutory

title, which is what your licence is, is subject to

whatever change the legislature thinks fit to grant	independently of the Constitution. It is talking
from instant to instant.

We would respectfully submit, Your Honours,

that there is nothing in the passage in 109 CLR

at 280, to which my learned friend Mr Rose

referred, to support the notion that one reads

"Act" in this statute in this context as meaning

the Act, whatever form it may in the future take.

So that is the first thing we would say.

Then, Your Honours, can I just say a word

about title. It is true this is called a licence

but, in fact, it is a title, of course, and it, no

doubt, uses the language of licence because the

Television(2) 218 SIR M. BYERS, QC 19/3/92

transaction is otherwise prohibited. But what it

does give you is a statutory title and that

embraces a series of rights including the right to
charge for advertisements. It also gives you a

right to broadcast.

We are only concerned at the moment with the

right to charge for advertisements - that is the

only thing. If you take away the right to charge,

you take away one essential characteristic, or

right, that the licence gives you, and Dalziel -

whether one treats it as looking to the right given

by the licence, or the right given by the licence

in respect of premises, both way, Dalziel says you
have taken away property, and the licence is

obviously property. It is impossible to say that a

legal right is not property. It is just

ridiculous, particularly, I mean, when my friend

says, "Well you can tax it to the limit", but you

cannot tax it so as to take back compensation that

the Constitution requires you to make. That is not

a legitimate exercise of the power to tax. You

cannot do it because the Constitution requires that

the person deprived of the right obtain his just
terms, not that the Commonwealth takes it away in

full flight and says, "Well, yes, I'm going to give

you just terms but give it to me back under a

taxing Act". That is nonsense.

Your Honours, the next thing we would want to

is Dams case. operative under the law of Tasmania. So that when

say this: my friend referred to the

one is talking about restriction, one was talking

about restriction of rights deriving from a

different legal system. So that has got nothing to

do - it says nothing, the observations there say

nothing to whether there has been an acquisition

here.

Might I just say a word about section 95Q(7).

Your Honours, we say there is absolutely no clue in section 95Q(7) that is directed to just terms. All

it says is that you:

are entitled to such additional broadcasting
time, for the purpose of broadcasting other

material -

it does not say "advertisements" -

as is determined in accordance with the

regulations.

That is all. It could be nothing, it could be a minute, it could be an hour, it could be additional

broadcasting for children's programmes, it could be

Television(2) 219 SIR M. BYERS, QC 19/3/92

anything.	You cannot read down subsection (7) to
make it apply to just terms.	It is nothing to do
with just terms.	So we would say that

section 95Q(7) just does not address the facts.

We would say in any event, Your Honours, that

it is quite erroneous in fact to say that if you

just take out a slab of broadcasting time and you

give that to the politician, you give that to the

legislators, they award that to themselves, and

then say, "What I will do to give you just terms is
that first of all" - and the demurrer here is

against the statement of claim which says there was no limit on broadcasting advertisements - "First of

all I'll take away part of that by this Act". That

is what they have done, then they have said, "Then

we'll limit the unlimited time by an exercise under

the Act so that you've got less time than you had

before, and then we'll extend it so you've got more

time."

That is ridiculous. It is a ridiculous

suggestion to say that that constitutes just terms,

because that is what they have done. They have

taken it away under the Political Broadcasting Act.

The Tribunal then says, "We'll limit your

broadcasting time, your advertising time", and then

they have said, "We'll give you some more". That

is just absurd, in our respectful submission.

Now, we would not wish to be taken to agreeing

to the suggestion in point of fact, that whenever

you choose, as it were, to receive whatever the

additional time, but that means that just terms are

provided because advertising is a very delicate

matter, and one has to have an audience, and one

has to be able to sell the right. And we would say

that, in fact, and there are issues of fact that

would arise here, that networking problems, the

diminution and the taking away of the prime time,

and matters of that sort, would deny the justice of	terms which would merely say, "Well, we will give
you some other time". Now, that is all I want to
say in relation to my learned friend, Mr Rose.
Now, Your Honours, in relation to my learned friend the Solicitor, I have already perhaps said a
lot, I have said too much, I mean in point of time.
The only thing I will, in view of that, say is
this: when one is talking about proportionality it
is correct no doubt to say that a regulation of the
right, if it is a constitutional right, in aid of
the right is valid, and that is what Smith
v Oldham, Judd v McKeon and all those cases are
talking about, what they do is broaden the franchise. They say, "You have a vote, you must exercise it". So, if you are going to advertise

Television(2) 220 SIR M. BYERS, QC 19/3/92

electoral matter you must put your name on it, so

it is all in favour of the right. And Your Honours

did say in Fabre V Ley, 127 CLR 665, at 669, a case

dealing with the Electoral Act, and dealing with

the candidate's deposit, at the bottom of page 669,

Your Honours say:

It is, in our opinion, beyond doubt that a law

providing for the nomination of candidates for

elections is a law falling within the subject

matter of ss. Sl(xxxvi.) and 31. The

requirement of the deposit of a sum of money

of the order of the sum stipulated in the Act

as a condition of the validity of a nomination

is, in our opinion, clearly within the

competence of the Parliament as within that

subject matter. The prescription of a sum

which is seen to be disproportionate to the

evidence purpose of the requirement of a

deposit by an intending candidate might well

be beyond power, not because the requirement

of a deposit is outside the power but because
the amount required indicated that the

Parliament was not confining itself to the

legislative subject matter.

In other words, it was destroying the franchise,

and destroying the candidate's right to vote, right

to stand, which he has if ..... qualified, and those

rights cannot be taken away, and they cannot be
hampered by legislation which is against the right

which abrogates the right. Thank you,

Your Honours.

MASON CJ: Thank you, Sir Maurice. Mr Solicitor for New

South Wales.

MR MASON:	Your Honours, section 95H of the Act was the subject of some discussion yesterday in the context
of whether there were one or six or seven Senate
elections and how the allocation of free time was
divided in that context.  It occurs to us that when
one applies 95H to a State situation there are
difficulties as well. Within New South Wales the
Constitution requires a concurrence between
elections to the Legislative Assembly and to the Legislative Council; half of which retires each
general election for the Assembly, the relevant
section being section 22A and the sixth schedule;
that is of the Constitution Act 1902. It is very
difficult to see how section 95H will apply in that
context except perhaps as leading to a double allocation of free time, 90 per cent going to the
parties according to the proportions they bore in
the last Legislative Assembly election and 90 per cent going to the parties according to the

Television(2) 221 19/3/92

proportions they bore in the last Legislative

Council election.

Secondly, my learned friend Dr Griffith said

at page 173 that the legislation was not

discriminatory because the Commonwealth received as

much, if not more, of a ban than was imposed upon

the State. In our submission that is not what the

principles discussed in the Queensland Electricity

case were all about. The real comparison is, as we

submit, between the position of the State and the position of others who are granted access to free

time or who are free of any restraints from

advertising under this legislation.

As to the proposition that the State executive

has no interest in making submissions as to

constitutional amendments, the only thing we would

wish to say in addition to what Sir Maurice has put

is that my learned friend's, the Solicitor General

for the Commonwealth, submission appears to confuse

two things. We are not asserting a constitutional

right to participate in the election process or the

process of voting concerning a referendum, we are

simply asserting a legitimate interest which

existed before this Act, reinforced by

section 100(3) of the Act, simply to participate

and it is that interest that is taken away from the

State Government.

Your Honours, at page 112 my learned friend

tendered some press statement from Senator Bolkus

which we submit is entirely irrelevant to the

issues in these proceedings. We note that the

proposed amendments will not touch territorial

elections in Territories, they seem to be confined

to local government elections in States.

Mr Rose, at pages 178 and 180, said that

Sl(xxxi) only protects rights which are of a kind

that are capable, by their nature, to be

transferred. And he cited a passage in R v Toohey
ex parte Meneling, 158 CLR at 342.	We had cited

that passage in support of the argument that a

licencee's rights in the licence were property.	But
the case cannot be transferred over to a

constitutional context. Section Sl(xxxi) does not

have any such requirement in it and, in our

submission Dalziel's case made that plain.

In any event, in our submission, the grant of

advertising time - leave aside the free-ness at the

moment - is a grant of something which is, in

Mr Rose's words, of a kind capable by nature to be

transferred. The fact that the particular grant in

the present context is not transferable does not

seem to take it outside of the proposition that he

Television(2) 222 19/3/92

was putting forward. And again, in this context we

refer to section 100(2) and (3) which treat the

right to advertise as a fairly tangible chose in

action.

In paragraph 60A on page 33 of the

Commonwealth's outline of submissions, there is a response to our argument that 95D is invalid with

respect to the free time grant that is appended to

it, our argument being that the grant of free time

is an acquisition which is not for a purpose in

respect of which the Parliament has power to make

laws.

The Commonwealth response to that involves the very approach to characterization that the passage

in Blakely's case that I read denies, in our

submission. It claims that the purpose of the

legislation is to prevent the broadcasting media from being used in ways that have harmful social

consequences, and that that is a valid purpose

because of Sl(v). But that is to confuse the legal

peg with the characterization of the true object of

the legislation. In any event, even looking at

that first purpose that is said to be the purpose

of the legislation, why is it not to prevent the

media from being used in ways that have harmful

social consequences with respect to State

elections? Once you characterize it that way, it

is not within the scope of the federal power, in
our submission.

The second purpose that is identified is said to be to protect federal and Territory electoral

processes against those harmful consequences.	Why
stop at federal and Territory? Obviously the

presence of 95D makes it plain that an object is to

protect electoral processes across the country.

Once you perceive that there is this additional,

and we submit illicit, purpose in the legislation,

then that is enough to take free time grants in

their application to 95D outside of Sl(xxxi).

There is a parenthetical comment in 60A that

with regard to section 95(4) that major parties

involved in State elections are also involved in

federal and Territory elections. This betokens a

false assumption that we will always have the same

political system in Australia. This legislation will, subject to what this Court does, stand and

possibly for a long time, and yet history has shown

that we have a range of political groupings and
that not all parties are as closely linked between

States even though they bear the same name, and

that time changes with new entrants coming into the

situation.

Television(2) 223 19/3/92

In 61.1.2, it is said that you cannot really

complain because: "Trust us, we'll adjust the

licence fee to compensate for the deprivation

through the grant of free time". If the adjustment

of a licence fee is to be regarded as an

appropriate way to compensate, it is surprising

that there was not a corresponding amendment to the

Television Licence Fees Act and the Radio Licence

Fees Act when this particular Act was passed. A

promise of this vague nature is no substitute for a

grant of just terms in the legislation which is

challenged. If the Court pleases.

MASON CJ: Thank you, Mr Solicitor. Mr Solicitor for the

Commonwealth, do you wish to say anything about the

Derbyshire case to which Sir Maurice referred?

MR GRIFFITH:	So far as Bellotti is concerned?
MASON CJ:	No, Derbyshire v Times Newspapers.

MR GRIFFITH: Perhaps if I could mention Bellotti's case,

Your Honour, that concerned a referendum and not an

election. It is clear from the judgment that it

was directed at the different circumstances and it

is implied in what is there said at the passages

referred to that the situation could be different

in an election.

Your Honour, so far as the Derbyshire case is

concerned, it would seem to have relevance in the

next case, Dietrich, which appears in the Court's

list this morning, and it may be sufficient if I

referred to it then. It is clear from the

judgments - I will not call them speeches - of
Lord Justice Balcombe and also

Lord Justice Butler-Sloss, Your Honour, that they

had regard to the provisions of Article 10 of the

European Covenant and basically seemed to take the

approach that if there was any uncertainty in the

common law, it was accepted that regard could be

had to the terms of that international covenant.

It does not have the force of law in the

United Kingdom, Your Honour. That is a matter of

continuing debate here. It was, for example,

discussed in the judgments of two members of the

Court of Appeal in the Jago case before it came to

this Court. It would seem, Your Honour, to us to

be an issue directly related to the arguments that

will be addressed to the Court in the next case.

As to whether the Court wants me to anticipate that

now or - - -

MASON CJ: There is no occasion to do that.

Television(2) 224 19/3/92

MR GRIFFITH:  If the Court pleases. Your Honour, could I

mention one other matter. My learned friend

Mr Mason referred to the operation of 95H in a

State election context, and he referred to the

different elections of the upper and lower houses.

Could I indicate, Your Honour, that there are

regulations promulgated for New South Wales and

that they do, by their terms, Your Honour, allocate

the 90 per cent in proportion to the total first
preference votes received in the last election for

the lower and upper houses, divided by two.

Your Honour, I do not make the point that the

Act is to be construed with the regulations, but

there is a provision in the regulations that

provides for the operation under 95H. If the Court

pleases.

MASON CJ:  Thank you. The Court will consider its decision

in this matter.

AT 10.41 AM THE MATTER WAS ADJOURNED SINE DIE

Television(2) 225 19/3/92