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

[1992] HCATrans 91

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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

TCN CHANNEL NINE PTY LIMITED

Eighth Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Television(2) 1 17/3/92

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 TUESDAY, 17 MARCH 1992, AT 10.16 AM

Copyright in the High Court of Australia

Television(2) 2 17/3/92

SIR M. BYERS, QC:  In the first matter if the Court pleases,

I appear with my learned friend, MR S.J. GAGELER,

for the plaintiffs. (instructed by Allen Allen &

Hemsley)

MR K. MASON, QC, Solicitor-General for New South Wales: I

appear with my learned friend, MR L.S. KATZ, for
the Attorney-General for New South Wales,
intervening in support of the plaintiff. In the
second matter I appear with my learned friend,

MR L.S. KATZ, for the plaintiff. (instructed by the

Crown Solicitor for New South Wales)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:

If the Court pleases, I appear with my learned

friends, MR D.J. ROSE, QC and MR J.S. HILTON, for

the Commonwealth. (instructed by the Australian

Government Solicitor)

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If the Court pleases, I appear with my friend,
MR B.M. SELWAY, for the Attorney-General for the

State of South Australia, to invervene on behalf of the State in both matters. (instructed by the Crown

Solicitor for South Australia) The Court should

have our submissions which indicate that there are

only two aspects of the matter on which we seek to

make submissions. As we are supporting the

Commonwealth on those matters it may be convenient,

subject to anything the Court says, if we put our

submissions after the Commonwealth.

MASON CJ: Yes. Sir Maurice.

SIR MAURICE:  If the Court pleases. Your Honours will be

aware, of course, that there have been written

submissions filed pursuant to an order made by

Your Honour the Chief Justice in these matters.

Your Honours will no doubt be relieved to hear that

I do not propose to read them, but what I would

propose would be to make some submissions about the

legislation and then deal with those aspects

relating to the various heads of argument in

support of invalidity as may not be sufficiently

clear in the written submissions and I would ask

Your Honours' indulgence if I perhaps trespass a

little beyond that field, but I shall endeavour not

to.

Now, may I take Your Honours first to the

legislation. If Your Honours have the pamphlet

copy it is Act No 203 of 1991. Could I take

Your Honours to section 95B which is at page 7 of

the print. Subsections (1), (2), (3) and (4)

really make one prohibition. What they say is, and

I will read them to Your Honours in a moment, that

Television(2) 3 SIR M. BYERS, QC 17/3/92

a broadcaster must not broadcast anything about an

election from the time the election is mooted or

the writs issued until the close of the poll. Now,

what subsections (1), (2), (3) and (4) do is tease

out, presumably for reading down purposes, first of

all the Executive Government of the Commonwealth.

They say:

(1) A broadcaster must not, during the

election period in relation to an election or

a referendum, broadcast any matter (other than

exempt matter) for or on behalf of the

government, or a government authority, of the

Commonwealth.

Now, election periods, and I do not know whether

Your Honours remember that - that is in

section 5(b) at page 3, and if Your Honours go to

paragraph (b) of that definition, Your Honours will

observe that -

(b) in relation to any other election to a

Parliament -

I am omitting the Legislative Council of Tasmania

and the Assembly of the Australian Capital

Territory, it means -

the period that starts on:

(i) the day on which the proposed polling day

for the election is publicly announced -

whenever that is, which could be three months

before the election, of course, and has happened I

think within recent memory; or

(ii) the day on which the writs for the

election are issued;

whichever happens first, and ends at the close

of the poll on the polling day of the

election.

So it is either announcement of the election, the public announcement, of course, or the issue of the

writs.

Now, I will be referring Your Honours and -

perhaps I should do so now - I do not wish to read

these sections, but the Electoral Act in

section 156 says you must have nominations between

10 and 28 days from the date of issue of the

writs - that is section 156. The poll must be

between 22 and 30 days from the nominations - that

is section 157.	So the period could comprise
58 days - that is 30 plus 28, 58 days.	And then,

Television(2) 4 SIR M. BYERS, QC 17/3/92

the return of the writs must be within 100 days

after issue - that is in section 159. So it is

apparent, of course, from the definition of

"election period", that apt of application in 95B,

that what is selected for the prohibition on

broadcasting in radio and television of election

matter is the commencement of the election and its

termination. So that is the whole period.

In other words, the thing that singles the no

discussion over television and radio is the
beginning of the election, and the ban on

discussion continues until the close of the poll.

So they have selected the whole election and said,

"No broadcasting on radio, no television".

I have said no broadcasting on radio and

television because if Your Honour goes back to

section S(b) at page 3, Your Honours will see that

"broadcaster" is defined at the top of the page as
meaning "the Corporation", which is the ABC, "the
Service", which I think is the Special Broadcasting

Service, or "a licensee", and a licencee under the

Act is holding a licence for radio and television.

So the whole field is covered. Then

subsection {ii) does the same thing in relation to

the executive government of a territory or the

government authority of a territory.

Your Honours, "government authority", I do not

will see on page 4. It is defined:

think it is particularly significant but it is

defined and I do not want to read it at the moment.

(a) in relation to the Commonwealth:

{i) a Department of State of the

Commonwealth; or

(ii) any other authority -

so that is a blanket prohibition on a government

authority -

(b) in relation to a State or Territory:

{i) a Department of State .....

(ii) a local government authority of the

State -

because this applies also in relation to local

government elections, and -

(iii) any other authority -

Television(2) SIR M. BYERS, QC 17/3/92

of the State -

that is established for a public purpose -

Your Honours will have observed that there is

an exclusion from the absolute prohibition of

exempt matter. I am thinking of subsection (1),

Your Honour. Subsection (1) says no matter may be

broadcast however urgent it may seem except exempt

matter. Your Honours will see that "exempt matter"

is also defined in section S(b), at page 3. It

means things like:

(a) matter directly relating to warnings of

impending natural disasters .....

(b) matter relating to measures (including

relief measures) taken to deal with such

disasters .....

(c) matter provided by the authorities

responsible for the conduct of an election to

a Parliament or a local government authority,

or of a referendum, including material

relating to the procedures and polling places

for the election or referendum and the

promotion of participation in the election or

referendum;

Then there is advertisements, there being an

exclusion in the concluding words of the definition

of "advertisements" "of goods and services" of

political references which in itself is later

defined as meaning, really, anything about the

election. Your Honours will find that at page 5.

So, if one goes back to subsection (1), one

finds that the broadcaster must not broadcast any

matter emanating from the executive government or a

department of State or an authority of the

Commonwealth during the election period, no word,

except, of course, what I have read out to

Your Honours; just like the polling booth at

such-and-such a place, presumably, and the list of

candidates are so-and-so and so-and-so.

And then, Your Honour, a similar provision,

though the nature of the subject-matter is slightly

different, is in (2) and I say it is slightly
different because (2) relates to political

advertisement. Your Honour sees that

subsection (2) says:

A broadcaster must not, during the

election period in relation to an election or

a referendum, broadcast a political

advertisement for or on behalf of a

Television(2) 6 SIR M. BYERS, QC 17/3/92

government, or a government authority, of a

Territory.

So, if Your Honours go down the page, Your Honours

will see just about line 29:

'political advertisement' -

is defined as meaning

an advertisement that contains political

matter;

'political matter' -

in turn is defined as meaning -

(a) matter is intended or likely to affect

voting in the election or referendum

concerned; or

(b) matter containing prescribed material;

but does not include exempt matter.

Then you go to:

'prescribed material' means 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

no discussion of election issues, no discussion of

candidates -

(d) the government, the opposition, or a

previous government or opposition, of the

Commonwealth -

so you cannot talk about what has been done by

government or opposition or previous government or

opposition -

(c) a member of the Parliament of the

Commonwealth -

or -

(f) a political party, or a branch or division

of a political party.

Television(2) 7 SIR M. BYERS, QC 17/3/92

Now, what that means of course is that you exclude,

apart from the exempt matter to which you have

already referred, all matter bearing upon the

election, its issues, the candidates, and so that

is taken out from the prime media of communication

for information, radio and television.

And then, of course, (3) picks up the same

notion as (2) and applies it to a State: or a government authority, of a State -

in a Commonwealth election.	And then (4) picks up
the same notion which is:

Subject to Divisions 3 and 4 -

that is the free time, which we will come to in a

moment. But they must not broadcast:

during the election period in relation to an

election or a referendum, broadcast a

political advertisement:

(a) for or on behalf of -

anyone, it says:

(a) for or on behalf of a person other than a

government or government authority -

already excluded -

(b) or his or her own behalf.

So, no voice may speak, that is the effect of those four provisions - no voice may speak - except

perhaps the talking head which we will come to

later.

Then, Your Honours, there is a provision

specifically directed to by-elections, and of

course incapable of obedience except by total
closure of information. If Your Honours go to it,

Your Honours will see it says:

Where the election concerned is a

by-election, this section is taken to apply

only to broadcasting:

(a) in the case of a broadcast made as part of

a broadcasting service without a service

area -

such as the ABC -

Television(2) 8 SIR M. BYERS, QC 17/3/92

to the area in which the relevant electoral

district, or any part of it, overlaps with the

area in which the broadcasting service is

normally received -

So they say you must stop the electromagnetic wave

on the boundaries of the electorate. I am not

quite sure how far you send it up, but it is an

absurd notion. What it really means is that you

cannot broadcast. You see the same sort of notion

in all its absurdity also in (b), but that is as

applied to service areas.

So that means, Your Honours, that you cannot

broadcast where there is a by-election and you

cannot broadcast where there is an election, any

matter about it except the exempt matter that I

have mentioned, whoever the person may be who

wishes you to do it. You cannot do it.

Then, Your Honours, they go to the next sort

of election in 95C. They select - again, this is a

sort of mirror image of 95B; this one is on

page 8, and it says:

A broadcaster must not, during the

election period in relation to an election to
the legislature, or to a local government

authority, of a Territory, broadcast any

matter (other than exempt matter) for or on

behalf of the government, or a government

authority -

Presumably, if you have a local government

election in a Territory, you could not broadcast

information, with the exception that I will come to

in a moment, in relation to a State election.	So
that if you had a by-election in a local

government, as it were, the prohibition descends.

And again in (2), - that is an absolute

prohibition, as Your Honours will see; it does not

matter what it is, just any matter, nothing - - -

McHUGH J: Well, does that mean, Sir Maurice, that a radio

station or television station could not broadcast a

police message that somebody was wanted?

SIR MAURICE:  Unless it comes within the definition of

exempt matter, the answer is yes. If it is about

or bears upon a candidate - suppose a candidate has

been kidnapped, you could not broadcast it -

McHUGH J:  No, I was thinking of subsection (1) "any

matter".

SIR MAURICE:  Nothing from the instrumentality of

government, nothing.

Television(2) 9 SIR M. BYERS, QC 17/3/92

McHUGH J: Nothing from the police department?

SIR MAURICE:  No, nothing, absolute silence. Your Honour -

it is not for me to make these comments perhaps -

but - - -

BRENNAN J:  Does this apply for Radio Australia, Sir

Maurice, broadcasting overseas?

SIR MAURICE:  Could I just check that, Your Honour, because

if Radio Australia is a licensee, the answer would

be yes, but I just cannot recollect off hand, but

Mr Gageler will look that up for Your Honour.

Now, Your Honours, I think I have done 95B.

Then 95C(l), the governments are selected out, that

is the legislature or local government, and the

prohibition is to operate in the Territory where
there is a local government election, because the

prohibition extends to any matter from a local

government authority. So 95C(l) says, well you

must not broadcast any matter from a local

government authority in relation to a local

government election. It is:

an election to the legislature, or to a local

government authority of a Territory -

cannot broadcast.

So that would no doubt extend to by-elections,

because although in this section, 95C, election is

not, unlike 95B, defined, it is defined in

section S(b). Your Honours will see at page 3,

"'election'" includes a by-election". In relation

to 95C, I should remind Your Honours that in S(a),

Parliament is defined, at the bottom of page 2, as

meaning, "the Parliament of the Commonwealth".

That does not apply in section 95B, because it

is talking specifically about the Parliament of the

Commonwealth. 95C, there is no reference to, I

Commonwealth. There is no reference to, I think, Parliament 95C itself. There is a reference to a

legislature. Then, again, under subsection (2), a
broadcaster is not to broadcast any political

advertisement:

during the election period in relation to an

election to the legislature ..... of a

Territory -

or in relation to a local authority of a Territory:

broadcast a political advertisement for or on

behalf of the government, or a government

authority -

Television(2) 10 SIR M. BYERS, QC 17/3/92

of another Territory. So I suppose you could have

the Australian Capital Territory, it would be
silenced in the Northern Territory, and vice versa.

I am not quite sure whether there is a Territory of

Heard Island, but I imagine the same would apply.

Your Honours will see that "political matter" has

the same definition and just covers the field.	You
just cannot say anything about the election.

McHUGH J: Sir Maurice, do the words "in relation to an

election" which appear through each of the

subsections qualify only the words "during the

election period", or do they also qualify "any

matter" or a "political advertisement"?

SIR MAURICE:  They qualify the election period.

McHUGH J: Only?

SIR MAURICE:  If Your Honour goes back to 95C(l):

A broadcaster must not, during the

election period in relation to an election to
the legislature, or to a local government -

Now, the prohibition is absolute as to subject-matter.

TOOHEY J: Is that right, Sir Maurice?

SIR MAURICE: That is what it says.

TOOHEY J:	Do not the words "in relation to an election to the legislature" qualify the material, the matter
which may not be broadcast?
SIR MAURICE:	No, Your Honour, because if you look to

95C(l), it says you cannot broadcast any matter.

TOOHEY J: It depends how you read it, does it not? A broadcaster must not, during the

election period in relation to an election to

the legislature ..... broadcast any matter - One reading would be that it is a matter in

relation to an election to the legislature, but you

do not read it that way, do you?

SIR MAURICE:  What I suggest it means, Your Honour, with

respect, although the second reading would not make

any great difference, but when they say:

must not, during the election period in

relation to an election to the legislature, or

to a local government authority, of a

Territory, broadcast any matter -

Television(2) 11 SIR M. BYERS, QC 17/3/92

it means, you cannot say anything - any matter.

Because "any matter" is not susceptible of being read down anywhere and the words "in relation to an

election to the legislature" qualify, as a matter

of normal English usage, the words "election

period". They do not qualify "matter" which pops

up some considerable time later and which is said,

"any matter". So, what we submit, Your Honours, is

it says:

during the election period in relation to an

election to the legislature -

That is its normal reading and that is what we

submit it means. However, if it means, "You shall

not broadcast any matter in relation to an

election", it is still the same sort of thing.

Perhaps, Your Honour Mr Justice Toohey and

Your Honour Mr Justice McHugh, if one goes back to

the definition of "election period", that rather

clarifies what, with great respect, we would

submit. If Your Honour Mr Justice Toohey goes

back - for example, take "election period" which is

defined on page 3. It says:

in relation to an election to the Legislative

Council of the State of Tasmania, or an ordinary election -

et cetera -

the period -

and then:

in relation to any other election to a

Parliament - the period that starts on -

so-and-so.

in relation to an election to a local

government authority - the period that

starts -

and so on.

in relation to a referendum -

which is the most extraordinary thing of all, one

might think but, however -

whose voting day is the same as the polling

day ..... the period that is the same as the

election period in relation to that election.

TOOHEY J: Yes, I see how you are reading it, Sir Maurice.

Television(2) 12 SIR M. BYERS, QC 17/3/92

SIR MAURICE: That is what we respectfully submit, if

Your Honours please.

TOOHEY J: Could I just ask you this: in relation to

section 95C - and it may well be true in relation to other sections - is subsection (2) subsumed in

subsection (1), or does it have something different

to say?

SIR MAURICE:  It is a different prohibition in the

sense -

TOOHEY J:  I appreciate it is a different prohibition but,

in fact, is it covered by the prohibition in

subsection (l)?

SIR MAURICE: If one takes 9SC, Your Honour, (2) is really

talking about "another Territory".	Your Honour
sees the concluding words:

must not, during the election period in

relation to an election to the legislature, or
to a local government authority, of a

Territory, broadcast a political

advertisement -

so that is different -

for or on behalf of the government, or a

government authority, of another Territory.

TOOHEY J: Yes, thank you.

SIR MAURICE:  So, it is the Territory, not being the

Territory in which the election is being held. So,

the first, as we would understand it, Your Honours,

prohibition is directed to a government of the

Territory, government of the locus, as it were; the

second is directed to the government of another

territorial locus, and they are both prohibited.

But the prohibition in relation to the exterior

territory or foreign territory is in relation to

political advertisement which covers the whole

field.

Then, (4), of course, only indicates what it

is all about. (4) says, you cannot:

during an election period in relation to an
election to the legislature, or to a local

government authority, of a Territory,

broadcast a political advertisement for or on

behalf of a government, or a government

authority, of a State.

Another territory, the State and then (5) says

anyone:

Television(2) 13 SIR M. BYERS, QC 17/3/92

Subject to Divisions 3 and 4, a broadcaster must not, during the election period in

relation to an election to the legislature, or
to a local government authority, of a

Territory, broadcast a political

advertisement:

(a) for or on behalf -

of anyone -

other than a government or government

authority;

(b) on his or her own behalf.

And then, again, you have the same illusory

provision about by-election, it is repeated. But

really when one looks to (1), (2), (3), (4) and (5)

of 95C, what they are doing is saying, "You cannot broadcast election material or, indeed, any matter

from a limited class or a political matter from

anyone".

McHUGH J: Except that is got to be subject to 95A(l)(a).

SIR MAURICE:	Yes, that is true.
McHUGH J:	(a) an item of news or current affairs.
SIR MAURICE:	Yes, "an item of news or current affairs", but

you cannot contest the election. Let me put it

this way: you cannot advocate your stand, and the

elector may not advocate his stand or make his

views known, and the candidate may not make his
views known, no one can.

BRENNAN J:  Mr Morris, is there anything in the statute

which would illuminate the denotation of the terms

"item of news" in 95A(l), "matter" in 95B and

95C(l) and "advertisement" in 95B(2) and 95C(2)?

SIR MAURICE:  Your Honour, one would have thought that you

could not under guise of broadcasting an item of

news, broadcast something which was in fact - I do
not know whether Your Honour is thinking of

subsection (1) or - - -

BRENNAN J: Subsection 95A(l).

SIR MAURICE:  Yes, but when Your Honour says "matter",

Your Honour is not referring to political matter?

BRENNAN J:  I am referring to the use of the word "matter"

in, for example, 95B(l).

Television(2) 14 SIR M. BYERS, QC 17/3/92

SIR MAURICE:  Section 95B(l). No, Your Honour, except you

cannot:

broadcast any matter -

it says -

for or on behalf of the government.

So, whether it is an item of news, in our

respectful submission, or not you just cannot do

it.

McHUGH J:	Surely you can, because it would not be on behalf of the government. Supposing the television
station said, "The government of X State today
announced that it was going to spend 400 million on
new jobs", that would be an item of news, would
that not be - - -
SIR MAURICE:	Your Honour, it depends where you pick it up.

It is notorious that prime ministers and ministers

have press conferences, and it is notorious that

they broadcast or give vent to items of news which

are things like relief programmes and so on which

Your Honour is referring to, but this, whether

intended or not - and one can only discern the

intended operation of it from the language - it

seems to say, "No, you can't, the governments are

closed off". Now, whether that is a sort of burnt

offering, a hopeful burnt offering, or not is

another thing. But, Your Honour, we would say - I

know I have digressed from what Your Honour

Mr Justice Brennan, and I frequently do this, so I

must ask Your Honours' indulgence - we would say
any matter means any matter and so you cannot do it

as an item of news is a matter, that is all. If the government wants to do it that is all right.

If someone else wants to say, as Your Honour

Mr Justice McHugh said, that Mr Jones, the Minister

election then from him, then that might be an item	some sort of announcement that did not bear on the for Social Services or something of that sort, made
of news.

But, Your Honour, there is a conflict between

the notion of an item of news and political

advertising, and the idea behind this Act, so we

would respectfully submit, is to cut out political

comment, that is the whole purpose of it and you
cannot, under the guise of broadcasting an item of

news, deliver the entire policy speech of the Prime

Minister and say, "Well, that is all right, he is

entitled to do that because that is an item of

news".

Television(2) 15 SIR M. BYERS, QC 17/3/92

McHUGH J: But why, because it has got to be done for or on

behalf of the government?

SIR MAURICE:  Yes, Your Honour. If the Prime Minister want

to come and say, "I want you to deliver my policy
speech", then it has got to be for and on behalf of
the government, if the prohibition, of course, is

subject to 95A, but, Your Honour, it is only "item

of news". But all I am possibly saying is that

"item of news or current affairs, or a comment on

such item; or a talkback radio program", is looking

to people who are making, on the radio or the

television, items about the news of the day and

only incidentally and touch election matters. Now,

that is all; they cannot propound it, otherwise you

have two contradictory prohibitions. And

Your Honours, if you go to look at what they say:

(2) Nothing in this Part prevents the holder

of a public radio licence -

now I think that is serving a particular purpose

like blind people or Aboriginal stations, I think - who provides a service for visually

handicapped -

well, that does not matter -

from broadcasting any material ..... permitted

to broadcast under section 119AB.

Well, that is a special service. Now:

(3) Nothing in this Part prevents a

broadcaster from broadcasting an advertisement

for, or on behalf of, a charitable

organisation if:

(a) the advertisement is aimed at promoting

the objects of the organisation; and

(b) the advertisement does not explicitly

advocate voting for or against a candidate in

an election or a political party.

(4) Nothing in this Part prevents a

broadcaster from broadcasting public health
matter, whether by way of advertisement or
otherwise.

And then they say, what is a "charitable

organisation". It is:

a public organisation whose objects are to

benefit the public through the relief of

Television(2) 16 SIR M. BYERS, QC 17/3/92

poverty, or the advancement of education,

religion, public health or science;

And "public health matter" does not extend to matter which:

directly or indirectly promotes or criticizes

a particular public health system;

So you cannot say it is bad or whether directly or

indirectly that there was something done, for

example, by the public hospitals or by Medicare or

something of that nature, or:

explicitly advocates voting for or against a

candidate in an election or a political party.

So, they restrict it, and the idea is to remove out

of the item of news; it may not have the clarity

which one would seek for, but that is the object,

to segregate out the item of news, matters which

would normally fall within "political

advertisement", as defined.

MASON CJ: But to come back to Justice Brennan's question,

are you able to offer any distinction between

"matter" and "advertisement", because, after all,

there is no prohibition against, for example, an

opposition party having material broadcast that

does not constitute a political advertisement?

SIR MAURICE: All I can say, Your Honour, is that "matter"

includes any statement, that is what we submit; any
matter, and "political advertisement" has the

defined meaning. The prohibition - let me put it this way, Your Honour - is on the broadcaster, so

that the broadcaster cannot broadcast what the

opposition wants him to broadcast, if it is a

political advertisement, so the opposition is cut

out too. So, none of these prohibitions fall

either on the government or on the opposition, but

they all fall on the broadcaster and they say,

political matter from any source cannot be
broadcast; opposition, government or whatever, and

any matter from a government.

MASON CJ:	But let us assume that a political leader - take the Opposition Leader for example - decided to hold
a press conference during the course of an election and in the course of that press conference he made a series of statements about the opposition
policies. That would not constitute an
advertisement, would it?
SIR MAURICE:	No, Your Honour.

MASON CJ: It would constitute matter.

Television(2) 17 SIR M. BYERS, QC 17/3/92

SIR MAURICE:  Your Honour, might I just withdraw what I just

said?

MASON CJ: Yes.

SIR MAURICE:  It would constitute an advertisement.

MASON CJ: Would it? Why?

SIR MAURICE:  If in relation to the election period it is -

if Your Honour goes to "prescribed material", if it

contains:

an express or implicit reference to, or

comment on, any of the following:

(a) the election concerned;

(b) a candidate .....

(c) an issue submitted or otherwise before

electors in that election -

So if he is making a statement about his policy, he

is talking about an issue in relation to it. Then,

it is also -

(d) the government, the opposition, or a

previous government -

so you cannot - any reference to. So just to say,

"This is the Leader of the Opposition" is a

reference to the opposition.	So you just cannot do
it.

McHUGH J: But it is still an item of news, is it not? Does

not 95A enable the broadcaster to broadcast an item of news or current affairs? Surely what the Leader of the Opposition or the Prime Minister says is an

item of news; or some of the time, anyway.

SIR MAURICE: 

I am not saying that "item of news" cannot

extend to some reference to the fact of the
election. What I am saying is that the news has to
be disssociated from the sorts of subject-matters
that are referred to in prescribed material and

they must emanate from a person who is the
broadcaster himself, not the government or the
opposition, is entitled to broadcast an item of

news, notwithstanding the prohibition.

MASON CJ: But, Sir Maurice, I do not know that what you

have said to me is an answer to the question that I

put to you.	My concern is with the word
"advertisement".	I asked you the question whether

or not a press conference at which various

statements were made by a political leader could

Television(2) 18 SIR M. BYERS, QC 17/3/92

constitute an advertisement. It does not seem to

me that it necessarily follows, because the

statement answers the description of political
matter, that it is thereby an advertisement because

the definition of "political matter" is for the

purposes of political advertisement. So you come

back to a distinction between matter and

advertisement.

SIR MAURICE:  Your Honour, it depends where you begin, I

suppose, but "political advertisement", which I

understand Your Honour to be concerned with,

means - - -

MASON CJ:  So you have got to satisfy yourself that it is an

advertisement, that is the first step?

SIR MAURICE: That is so, Your Honour, that "contains

political matter". I quite agree with all that,

Your Honour, that is what the language uses, it

says that. But, Your Honour, what I am saying, I

suppose, is that the word "advertisement" merely

means it gives or draws attention to the subject-

matters that are mentioned in "prescribed material"

and "advertisement" is used in its normal sense.

It does not mean paid material; it just means you

cannot broadcast any advertisement; anything that
brings to attention the prohibited matter.

Otherwise, Your Honour, all it would do would be operate to prevent the television stations and

radio stations earning income. So that the Prime
Minister could say an entire policy speech; the

Leader of the Opposition could give an entire policy speech; so that one would have total

freedom of communication and one would say, "Well,

what's the point of the legislation?".

I know that is not semantically a great deal of assistance to Your Honour but that is the best I

can do, at any rate, at the moment.	Can I think
about what Your Honour has put to me and, if

necessary, come back to it later?

MASON CJ: Yes.

SIR MAURICE:  Your Honours, 95D then deals with State elections, and it says that -

(1) A broadcaster must not, during the election period in relation to an election,

broadcast a political advertisement for or on
behalf of the government, or a government

authority, of the Commonwealth.

(2) A broadcaster must not, during the

election period in relation to an election or

Television(2) 19 SIR M. BYERS, QC 17/3/92

a referendum, broadcast a political

advertisement for or on behalf of a

government, or a government authority, of a

Territory.

(3), another State; (4) anyone. So (1), (2), (3)

and (4) are really designed to prevent the

broadcaster broadcasting an advertisement or matter

relating to the election from anyone. That is our

submission. Subsection (5) I have already referred

to, and I do not want to go to it again.

BRENNAN J: Sir Maurice, what if, for example, the leader of

an opposition party said today's balance of

payments figures demonstrate the bankruptcy of the

government's economic policies? That could be

published as a comment under 95A(l) upon an item of

news. What, the government could not reply?

SIR MAURICE:	We would say no, Your Honour, it could not. All that 95A is concerned about is - indeed, all
these sections are concerned about - are the broadcasters. They do not operate except to deny the medium to the government and to deny it to the opposition, but they deny it.
BRENNAN J:	But they do not deny it to either government or

opposition in respect of items of news or current

affairs, do they?

SIR MAURICE:  They deny it to the government or opposition

totally.	They allow the broadcaster to broadcast
an item of news.	Your Honour sees nothing in this

Part prevents a broadcaster from broadcasting an

item of news.

BRENNAN J: But who says the comment, for example, must be

made by the broadcaster? The comment can be made

by anybody, can it not?

SIR MAURICE:  It has to be an item of news, yes, or a

comment on any item.

BRENNAN J: Yes. Well, say, for example, they put a

particular commentator on and he	happens to be
either government or opposition.	Is there anything
to prevent that broadcast?

SIR MAURICE:  No, unless you can say it is prohibited by the

other sections. All I am saying, I suppose, is it

would be strange if you could use 95A to deny the

operation to all the explicit prohibitions. It

would be a strange result. So therefore, one has

to do the best one can to combine or elucidate the

ultimate effect of the two provisions. So really,

I would suppose what 95A does is operate as a sort

of exception to not only exempt matter, but 95B,

Television(2) 20 SIR M. BYERS, QC 17/3/92

95C, 95D. But it is only dealing with the

broadcaster. It is not dealing with the

government, and it is not dealing with the

opposition; it is dealing with the broadcaster,

and all this prohibition is about the broadcaster.

In other words, it is an attempt to control the use of a medium, radio and television.

MASON CJ: But you are not suggesting that a politician

could not be invited to comment on an item of news

or current affairs under A?

SIR MAURICE:  I never suggest anything that is outrageous, I

hope, Your Honour, but I do not think I could

prevent that. I do not think one could say that.

MASON CJ: And even more obviously, somebody who runs a

talk-back radio programme could be interviewing

politicians, and there it is a blanket exemption,

in a sense.

SIR MAURICE:	Yes, for radio.	So the people who ask - - -
MASON CJ: Yes.

SIR MAURICE: That is right.

MASON CJ:  So that talk-back radio programmes would

presumably become the real vehicle for political

discussion during the course of an election

campaign.

SIR MAURICE:	Some might say that has occurred in many cases already but, Your Honour, that is a melancholy
consequence, as Your Honour the Chief Justice
points out, but that is perhaps possible but we
would submit unlikely.  Your Honour, I do not think
I can say as a matter of construction that a comment cannot be a comment by someone who is not a
politician, but it must be a comment on an item of
news or on a current affair.

Your Honour, I do not think I can say anything

more at the moment about the relationship between 95A and 95B, except to say that 95A is a proviso. It is a proviso to 95B and 95C and 95D, and you

have got to construe it as a proviso, not to

construe 95B, 95C and 95D as provisos to 95A, which

they are not.

Therefore, you would normally say, "Well, the prohibitions don't exclude what is in truth an item

of news, what is in truth an item of current

affairs or a comment on either", but they cannot

allow the prohibition. So that you cannot, by

resorting to items of news, defeat the prohibition,

because you are talking about a proviso. That is

Television(2) 21 SIR M. BYERS, QC 17/3/92

what we submit is the whole cast of this, that is
what it says.

BRENNAN J: Sir Maurice, who decides whether a particular

item is an item of news or comment or matter or

advertisement?

SIR MAURICE:	Your Honour, the Broadcasting Tribunal could probably say, "Well, we're going to revoke your
licence", or something of that sort, and no doubt
it would be appealed to the Federal Court and other
things, but in the long run, if there were penalties or rights affecting property or
interpretation of the Act, the courts would be, because they would be the only ones who could
determine rights arising from the law. So in the
long run, it would have to be that.

BRENNAN J: It is not an offence anywhere to

SIR MAURICE:	Your Honour, I do not think it is, but can I - Mr Gageler refers me to 95U, if Your Honour
pleases, at page 16:

On application by the Tribunal, the

Federal Court of Australia may make such
orders as it thinks necessary or expedient for
the purpose of preventing, or preventing a

repetition of, a contravention of section 95B,

95C, 95D, 95E or 95S.

It is a sort of injunctive procedure there

presumably, Your Honour. Under section 132 of the

Broadcasting Act, subsection (1) says that:

A person who contravenes a provision of

this Act other than subsection 99(1A) -

which does not matter -

is, unless otherwise provided by this Act,

guilty of an offence against this Act - So what I said to Your Honour was wrong. It is an

offence, and it would be decided on prosecution.

So might I therefore retract what I previously said

and rely on that. It is an offence.

Your Honours, there is 95E which I do not think I need worry Your Honours with. I assume it

is really directed to the fact that - I had better

not say what I assume because I must confess I have

difficulty understanding what it means. So could

we just leave 95E. It has no relevant application.

Would Your Honours go to 95F. Your Honours

will see that 95F says that:

Television(2) 22 SIR M. BYERS, QC 17/3/92

Nothing in this Division -

that is Division 3 - this is the free time -

is to be treated as requiring or permitting -

so, it says "permitting" -

the Service -

that is SBS -

or a licensee to broadcast an election

broadcast by radio.

So, that means at least that the prohibitions contained in 95B, C and D continue to apply to

radio, notwithstanding 95F. Now, what "election

broadcast" is is not altogether clear, I must say.

It may be, if one goes to 95G, that one has in mind

that that is what they are talking about. But 95G

says that:

Subject to 95F -

which we will come to in a moment -

a broadcast made on behalf of a political

party, a candidate or a group in relation to

an election is, for the purposes of this

Division, taken to be an election broadcast

if, and only if -

so that is for the purpose of Division 3. It is:

an advertisement that consists of words spoken by a single speaker ..... accompanied, where the

advertisement is televised, by a transmitted

image that consists of the head and

shoulders -

hence this language, "talking head", which has

certain vividness. It:

does not include any other image, or includes

a single additional static background image

only; and

no other vocal sounds .....

the speaker is a candidate in the election or

a member of the Parliament of the Commonwealth

or a State, or of a legislature -

and then there is prescribed particulars, and then

"2 minutes" says (f) for television, which, of

course, is the more popular medium, as that amply

Television(2) 23 SIR M. BYERS, QC 17/3/92

evidences, and "radio - 1 minute". That is

referring to the ABC, and:

the broadcast is made using a unit of free

time allocated to the broadcaater under

section 95P.

How you fit in the notions of images on to radio is

obscure and it is something that I shall not

propose to endeavour to plumb, it is too obscure.

Then, Your Honour, one goes on to 95H and

Your Honour sees that what that does is to say:

The Tribunal must ..... grant a period of free

time -

so this is mandatory -

to each political party that:

(a) was represented by one or more members in

the relevant Parliament or legislature immediately before the end of the last sittings of that Parliament or legislature

held before the election; and

(b) is contesting the election with at least

the prescribed number -

so that is the Executive Government of the day who

will no doubt say what the prescribed number is.

And then (2) says:

The total free time period to be granted to

political parties under subsection (1) is the
period equal to 90% -

so the political parties take 90 per cent:

of the total time in respect of the election,
and the Tribunal must grant each of those

parties such part of that total free time

period as it determines in accordance with

regulations.

So, the executive government states what is in

the regulations, makes the regulations, the

tribunal then must grant to the political parties

who are represented - in other words the sitting members get 90 per cent of the time, so they are

given a free ride, if Your Honour will pardon that

expression, they are given a privileged position.

They then go on and say:

(3) Regulations made for the purposes of

subsection (2) must, so far as is practicable,

give effect to the principle that the amount

Television(2) 24 SIR M. BYERS, QC 17/3/92

of free time granted to each party should bear
the same proportion to the total free time
period mentioned in that subsection as the
number of formal first preference votes
obtained by that party or its candidates
at ..... bears to the total number of such votes
obtained by all of the parties mentioned in

subsection (1) or their candidates at that

last election.

So, that is the sort of theory. Winner take all.

The more successful party last time, as I would

understand it, gets the biggest share of the

90 per cent.

Then they say what election, that includes a

by-election.	(4) is not particularly - it just
says:

'election' means an election (other than a by-

election) to:

(a) the Parliament ..... or

(b) the legislature ..... or

(c) a State Parliament -

'total time' ..... means the total free

time .... worked out in accordance with the

regulations.

So that is what the executive government of the day

says. So, 95J then says:

This Part does not apply in relation to an

election to the Parliament of the Commonwealth
or of a State, or in relation to an election

to the legislature of a Territory until

regulations are made for the purposes of

section 95H that relate to that election.

Now, what that does, if you think of State

elections, is to give to the Executive Government

of the Commonwealth the choice of applying this Act

because it says "This Part", including the
prohibitions, to any State election, and of course
applying it to any Commonwealth election and to any
territory election or, for that matter I suppose,

local government election. Then they say:

The chief executive officer of a political

party (other than a political party to which

section 95H applies).

Television(2) 25 SIR M. BYERS, QC 17/3/92

So, the parties in power get as of right and

without application 90 per cent, as of right and

without application. So, the other people:

The chief executive officer of a political

party ..... or any other person or group of
persons, may apply to the Tribunal for a grant
of free time in relation to an election (other

than a by-election) -

for the various parliaments -

(a) the Parliament of the Commonwealth; or

(b) the legislature of a Territory; or

(c) a State Parliament.

So, you have got a right, a capacity to make an

application, no more. It:

must be in the approved form.

Then we leave the application for the moment and go

to 95L because this is another encroachment on free

time. Your Honour sees, 95L says:

If, on receipts of an application by a person

for a grant of free time in relation to a

Senate election -

this being, I think, a Senate amendment -

the Tribunal is satisfied that:

(a) the person is a candidate in the election;

and

(b) the person was a member of the Senate

immediately before the end of the last

election; and	sittings of the Senate held before the	(c) the person is not a member of a political
party to whom a grant of free time has been
made under section 95H;
the tribunal must grant the person a period of free time -

again.

So a sitting member, who is a non-party, is entitled to a grant of free time. Now, what is it?

Television(2) 26 SIR M. BYERS, QC 17/3/92

The period to be granted to a person under this section is the period determined by

the Tribunal in accordance with the

regulations -

and then they proceed to say what it is -

being a period equal to not less than 5% of

the total time in respect of the election nor

more than 10% of that total time.

So you have got 90 per cent going to the political

party, 5 per cent going, one assumes, to each

sitting member of the Senate who is not a member of

a political party.	So if you have two, 100 per
cent goes.	In other words, if you have two members

and you have a half-Senate election in which they

are both members and they are represented at an
election, then the 100 per cent is evened up.

Then, Your Honour, there is a section which seems to imagine that somehow or other you can

apply this to more than two. But, you see:

(3) If the tribunal is required under this

section to grant a period of free time to 2 or

more persons, the Tribunal must divide the

period

of time -

determined under subsection (2) between then

in accordance with the regulations.

If it "is required under this section to grant a

period of free time to 2 ..... persons, the Tribunal

must divide the period of time determined under

subsection (2)". If you go back to "determined

under (2)", you find that is 5 per cent, "not less

than 5% ..... nor more than 10%". So it is difficult

to see how (3) could apply in accordance with its

terms to more than two. At any rate, I hear the

Solicitor for the Commonwealth making noises to my right so, at any rate, I will leave it. That seems to be what the subsection means and we say that is

what it means.

Then we come back to the other people who are

making applications. So we have got the mandatory

obligations on the tribunal, the parties and the

non-party members in the Senate. Then the people

who may make application, under 95M.

If ..... the tribunal is satisfied that the

party has endorsed one or more candidates -

it -

Television(2) 27 SIR M. BYERS, QC 17/3/92

may, subject to the regulations -

so that is a capacity, a discretion. So it may

grant and that discretion is controlled by the

regulations. So 95M really picks up 95K and says,

"Well, the tribunal may grant a period of time in

accordance with the regulations."	And then, 95N is
mandatory:

The Tribunal must, in accordance with the

regulations, notify -

that is understandable. Then, 95P:

(1) The Tribunal must divide each period of free time granted under this Division into

units of free time in accordance with the
regulations.

(2) If the division of a period of free time granted to a political party, person or group under this Division results in a number of

whole units and part of a unit, the Tribunal

must, in accordance with the regulations,

distribute that part of a unit to or between

any other political parties, persons or groups

granted a period of free time under this

Division.

(3) The Tribunal must, in accordance with the

regulations, allocate units of free time to

broadcasters.

So this is, perhaps, not a gift eagerly sought by

the broadcaster. But then, it says:

(1) Subject to this section, where one or more units of free time are allocated to a

broadcaster under section 95P, the broadcaster

must make the unit or units available -

he must -

for use in making one or more election

broadcasts during the election period for the

election on behalf of the political party,

person or group .....

(2) Subject to this section, the broadcaster

must use the units -

of time -

in accordance with the regulations .....

Television(2) 28 SIR M. BYERS, QC 17/3/92

(3) A broadcaster must not make an election

broadcast ..... before the close of nominations

for the election.

(4) Subject to this section, a broadcaster

must make, during the election period .....

(a) ..... 3 election broadcasts by television on

each day on which the broadcaster is required

to use units of free time .....

(b) in the case of ..... a Territory - the

prescribed number .... .

(c)	in the case of ..... a State Parliament -
2 -

So, the principle of 95H, 95L, is that those

persons referred to in it get their grants of free

time; that is compulsory, they must get it.	The
persons referred to in 95K, that is:

(other than a political party to which

section 95H applies)

in other words, other than the 90 per center - if

Your Honours will pardon that expression - he may make an application. So there is a right to make

an application and there is a discretion to grant

it under 95M.

So, entitlement to political parties with

representatives in a Parliament; entitlement to

senators who are not members of political parties in senate elections, 5 per cent and not more than

10 per cent. Capacity to make an application in

all others; no obligation to grant it. An

obligation on the broadcaster t_o grant the free

time; to act in accordance with the allocations and
to do it free of charge. That is in 95Q(5), which

is at page 15 and (6), which I do not think matters
particularly.	Then it says:

(7) A licensee who is required to make an

election broadcast is entitled to such

additional broadcasting time, for the purpose

of broadcasting other material, as is

determined in accordance with the regulations.

Now, it is not quite clear what that is at, but no

doubt Your Honour will hear more about it.

DEANE J: Sir Maurice, is there anything that says, in the

case of an ordinary Commonwealth election, what

total time is. I mean, is there one period of

total time for the House of Representatives and

another for the Senate, or is there one - - -

Television(2) 29 SIR M. BYERS, QC 17/3/92

SIR MAURICE:  Your Honour, in a number, if Your Honour goes

to 95Q, which Your Honour has probably read,

95Q(4) (a):

in the case of an election to the

Parliament of the Commonwealth - 3

election broadcasts by television on each

day -

But it does not say how they are allocated. I

suppose, if you had a double dissolution, it would

not matter, but if you had a half Senate election,

without a Representative election, you might have a

problem and if you have a Representatives, I

suppose, a no half election, so it would not matter

there, but - - -

DEANE J: But, what if you had an election where two

senators without political parties were standing,
do you read 95M as allowing additional free time
over the total time, or does 95M then become

inoperative?

SIR MAURICE:  Your Honour, if they were sitting Senate

members - - -

DEANE J: That is what I meant.

SIR MAURICE:	of course, 95L would apply.
DEANE J:	No, what I had in mind is - - -
SIR MAURICE:	I beg Your Honour's pardon.

DEANE J:  95H seems to take 90 per cent. If you have got

two senators who are not political parties, 95L

brings it up to 100 per cent. Well you then come

to 95M. What I was asking you is, do you say, that

in that context, 95M is simply inoperative?

SIR MAURICE:  Yes, Your Honour.

DEANE J: Well, the other view would be that it allows

additional free time over the total time referred

to in 95H or 95L.

SIR MAURICE:  We would respectfully submit, Your Honour,

that it does not, and that you cannot have more

than 100 per cent it would seem, so we would

respectfully submit, Your Honour.

DEANE J: That depends on what "total time" means.

SIR MAURICE:  Yes, Your Honour. Now, there is a definition

of "total time" in 95H(4) on page 12 about line 30:

Television(2) 30 SIR M. BYERS, QC 17/3/92

'total time', in relation to an election,

means the total free time available in respect

of the election, being a time worked out in

accordance with the regulations.

Your Honour, I would imagine they are talking about

quantum there. They are not talking about

percentages as it were. It means -

total free time available in respect of the

election.

I do not think that really bears on Your Honour's

problem, but I do not think I can respectfully

submit other than that we say that when they are

after 100 per cent they say 100 per cent, and you

cannot have more than 100 per cent. And 95M does

not give the tribunal a discretion to grant a

period of free time beyond 100 per cent. It is, in

any event, subject to the regulations. Whatever

they may prescribe in relation to any election, of

course, one does not know. Your Honour sees that

95M confers an authority restricted by what the

regulations may say.

BRENNAN J: Is there anything that indicates whether the

regulations are of general application to all

elections, or whether particular regulations can be

promulgated in respect of particular elections?

SIR MAURICE:  It is rather suggested by 95J, Your Honour,

that it goes election by election, and it says:

This Part does not apply in relation to an election -

that means neither the prohibition in the preceding

division nor the free time -

to the Parliament of the Commonwealth or of a

State, or in relation to an election to the

legislature of a Territory until regulations

are made for the purposes of section 95H that

relate to that election.

So that would suggest, Your Honour, that you have

specific regulations relating to specific elections

and that you do not have a sort of general

statement of principle or regulation of general

application. That is the only indication, to deal

with Your Honour Mr Justice Brennan's difficulty,

that appears in this Act. There is a general

regulation making power in the Broadcasting Act, of
course, and we can give Your Honour the reference

to it, but it throws no light on the particular

subject. The regulation making powers are

Television(2) 31 SIR M. BYERS, QC 17/3/92

section 134 which is "necessary or convenient'',

Your Honour, with a number of specific subjects.

Now, Your Honour, the only other section I

want to mention, having delayed Your Honours with

this Act, is 95S which empowers - it does not

oblige - a broadcaster to broadcast what is

described as a "policy launch":

Where:

(a) a political party has endorsed one or more

candidates for the purposes of an election to

the Parliament of the Commonwealth

or ..... Territory; and

(b) the political party is represented by one

or more members of ..... the legislature -

the chief officer requires it, a broadcaster may
broadcast a policy launch. But that is not

mandatory, and accordingly I do not propose to take

Your Honours' time with it. Whether a broadcaster

may charge for that, Your Honour, is not, I must

confess, clear to me. Perhaps we can just look at

that. It must be free time.

TOOHEY J: Subsection (4), Sir Maurice.

SIR MAURICE:  Yes, Your Honour, subsection (4), it must be

free. So the likelihood of broadcasters embracing

that may be considered perhaps a little remote.

Your Honours, that is all we would wish to say

about the Act.

Your Honours will have seen, from our written

submissions, that we seek to challenge or call in

question the validity of the legislation by

reference to submissions based on the structure of

the government and by the Parliament and what that

implies for the elector.

DEANE J: Sir Maurice, section 95S(7) may bear on the

construction of section 95A, may it not?

SIR MAURICE:  Yes.

DEANE J: It may support a wider view of 95A(l).

SIR MAURICE:  Yes, Your Honour. I think I must say that it

does. So that would mean you must have your policy

launch first, I presume, so we would submit,

Your Honour. You would have your policy launch and

then you can have an item dealing with it, but that

does support the wider view, as Your Honour

Mr Justice Deane refers to.

Television(2) 32 SIR M. BYERS, QC 17/3/92

Your Honours, what we submit is that

sections 95B, 95C and 95D exclude the use of radio

and television as a means for the dissemination of

political information and as a forum of discussion.

They enable you to broadcast items of news, but as

a means of the dissemination of political

information and political discussion, it is closed

off.

They do so for periods beginning with the

first public announcement of an impending election or the day when the writs are issued and terminate

at the close of the poll. That is for the whole

period. Then, Your Honours, 95B, 95C and 95D

eliminate the rights of electors, of candidates and

interested bodies to contribute to the political

discussion of the election or of the candidates or

of the election issues.

We say what 95H and the ancillary provisions

do is to substitute for the rights of freedom of

political discussion which one has, a statutory

regime whereby those parties represented by members

in the Parliament, as of right and without

application, obtain 90 per cent of the total time

allowed for broadcasting election material.

Non-party Senate members obtain at least 5 per cent

of the remaining 10 per cent if there is a Senate

election or half Senate election. No other

candidate has any right except that of making

application for a time and no citizen or interested

body has any right at all. So it has closed off

the citizen's right as a voter.

The central point, I suppose, Your Honours, is that - if I could go now to some of the provisions

of the Constitution. I shall not elaborate them

unduly, but Your Honours will remember that

section 7 says:  The Senate shall be composed of senators

for each State, directly chosen by the people

of the State, voting, until the Parliament

other provides, as one electorate.

So the constitutional mandate is votes.	And then
section 8 says:

The qualification of electors of senators

shall be in each State that which is

Constitution,

prescribed by this or by the of members of the House of Representatives -

and then section 9 says that:

Television(2) 33 SIR M. BYERS, QC 17/3/92

The Parliament of the Commonwealth may make laws prescribing the method of choosing

senators, but so that the method shall be

uniform for all the States. Subject to any

such law, the Parliament of each State -

which recognizes having a right in this respect - may make laws prescribing the method of

choosing the senators for that State.

And then:

Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State, for the time being,

relating to elections for the more numerous

House of the parliament of the State shall, as

nearly as practicable, apply to elections of

senators for the State.

Then Your Honours will remember section 15, in the

case of casual vacancies, the Joint Houses of

Parliament, if there are two, take the place of the

people of the State to fill a vacancy - that is

section 15. Now, Your Honours, I think I do not

need to read this, but section 16 says that:

The qualification of a senator shall be

the same as those of a member of the House of

Representatives.

Section 24, Your Honours:

The House of Representatives shall be composed of members directly chosen by the

people of the Commonwealth, and the number of

such members shall be, as nearly as

practicable, twice the number of the senators.

Again, a method of voting is indicated and then

section 25 is, of course, a provision designed to

widen the franchise by making the proportions of

the States, for the purpose of section 4, reduced

by those who it disqualifies as electors. So the

purpose of the last section: if there are excluded

classes then they are not included in the people of

the State or of the Commonwealth, so far as the

State is concerned.

Then, Your Honours, section 32 - the usual

writs for the election. The other sections relate

to application of state laws, qualification of

electors in section 30, and 29 deals with electoral

divisions and section 41 provides that:

Television(2) 34 SIR M. BYERS, QC 17/3/92

No adult person who has or acquires a

right to vote at elections for the more

numerous House of the Parliament of a State

shall, while the right continues, be prevented

by any law of the Commonwealth from voting at

elections for either House of the Parliament

of the Commonwealth.

Now that may have a limited sort of

application. Your Honours have adverted to that, I

think. But what those provisions make clear is

that there are to be electors who have a vote in

favour of returning members to a representative and

responsible Parliament. And, of course, the right

to vote is a personal right.

Now, can I just remind, Your Honours of Ashby

v White, which states that proposition. It was not

on our list so can I hand to Your Honours

photocopies of the report in the English Reports.

This is, of course, a truism, but it is a very important truism, at any rate, for the purpose of

our argument. Your Honours will see at the bottom

of the page, Ashby v White, and then if

Your Honours turn over the page you will see the

headnote:

A man who has a right to vote at an

election for Members of Parliament may
maintain an action against the returning
officer for refusing to admit his vote. Tho'

his right was never determined in Parliament.

And tho' the persons for whom he offered to

vote were elected.

Now, Your Honours, the judgment that was upheld by

the House of Lords was the judgment of

ehief Justice Holt, which Your Honours will see

begins at page 134. one or two passages in

His Lordships judgment I would take leave to read

to Your Honours. The first is the beginning at

page 134. He says:

The single question in this case is,

whether, if a free burgess of a corporation,
who has an undoubted right to give his vote in

the election of a burgess to serve in

Parliament, be refused and hindered to give it

by the officer, if an action on the case will

lie against such officer.

I am of opinion that judgment ought to be

given in this case for the plaintiff. My

brothers differ from me in opinion, and they

all differ from one another in the reasons of

their opinion -

Television(2) 35 SIR M. BYERS, QC 17/3/92

Your Honours, one perhaps has heard that, from time

to time, since 1702, because the House of Lords

judgment was 1703.

but notwithstanding their opinion -

His Lordship proceeds -

I think the plaintiff ought to recover, and

that this action is well maintainable, and

ought to lie. I will consider their reasons.

My brother Gould thinks no action will lie against the defendant, because, as he says, he

is a judge; my brother Powys indeed says, he
is no judge, but a quasi judge; but my brother

Powell is of opinion, that the defendant

neither is a judge, nor any thing like a

judge, and that is true: for the defendant is

only an officer to execute the precept, i.e.

only to give notice to the electors of the

time and place of election, and to assemble

them together in order to elect, and upon the
conclusion to cast up the poll, and declare

which candidate has the majority.

But to proceed, I will do these two

things: first, I will maintain that the

plaintiff has a right and privilege to give

his vote: secondly, in consequence thereof,

that if he be hindered in the enjoyment or

exercise of that right, the law gives him an

action against the disturber, and that this is

the proper action given by the law.

I did not at first think it would be any

difficulty, to prove that the plaintiff has a

right to vote, nor necessary to maintain it, but from what my brothers have said in their

arguments I find it will be necessary to prove

it. It is not to be doubted, but that the

commons of England have a great and

considerable right in the government, and a
share in the legislative, without whom no law

passes; but because of their vast numbers this

right is not exercisable by them in their

proper persons, and therefore by the

constitution of England, it has been directed,

that it should be exercised by

representatives, chosen by and out of

themselves, who have the whole right of all

the commons of England vested in them: and

this representation is exercised in three

different qualities, either as knights of

shires, citizens of cities, or burgesses of

boroughs; and these are the persons qualified

to represent all the commons of England.

Television(2) 36 SIR M. BYERS, QC 17/3/92

Now, Your Honours, he then goes into the, what is

now, perhaps, archaic considerations. At the

bottom of page 135, dealing with corporations and

so on, about 5 lines from the bottom, Your Honours

will see a sentence beginning:

But from hence it appears that every man, that

is to give his vote on the election of members

to serve in Parliament, has a several and

particular right in his private capacity, as a

citizen or burgess. And surely it cannot be

said, that this is so inconsiderable a right,

as to apply that maxim to it, de minimis no

curat lex. A right that a man has to give his

vote at the election of a person to represent

him in Parliament, there to concur to the

making of laws, which are to bind his liberty

and property, is a most transcendant thing,

and of an high nature, and the law takes

notice of it as such in divers statutes:

And then he refers to them. Perhaps I should read

it:

the County and City of Chester; where in the

as in the statute of 34 & 35 H, intitled An

preamble it is said, that whereas the said

County Palatine of Chester is and hath been always hitherto exempt, excluded, and

separated out, and from the King's Court - I do not think I need worry Your Honours with the

rest of that passage.

So that the opinion of the Parliament is, that

the want of this privilege occasions great
loss and damage. And the same farther appears

from the 25 Car. 2, c. 9, an Act to enable the

County Palatine of Durham to send knights -

and I do not want to read what that says, but then

the next sentence:

The right of voting at the election of

burgesses is a thing of the highest

importance, and so great a privilege, that it

is a great injury to deprive the plaintiff of

it. These reasons have satisfied me as to the

first point.

So he says, it is a private right and the second

point is he can maintain it by action.

If Your Honours go to page 138, about five lines

from the bottom of the page:

Television(2) 37 SIR M. BYERS, QC 17/3/92

Friday the 14th January 1703, this

judgment -

that is the majority -

was reversed in the House of Lords and

judgment given for the plaintiff by fifty

Lords against sixteen -

they go on -

Trevor Chief Justice and Baron Price were of

opinion with the three Judges of the King's

Bench. Ward C. B. and Bury and Smith Barons

were of opinion with the

Lord Chief Justice Holt, Tracy dubitante,

Nevill and Blencowe absent.

So, the Chief Justice carried the day and so it has

stood ever since. And might I just also quote one

this was not on our list, so could I

sentence of these, after all, obvious propositions? apparently

hand up the case of Judd v McKeon, 38 CLR 380.

They were concerned with section 128(12) of the

then Electoral Act which says:

"every elector who (a) fails to vote .....

without a valid and sufficient

reason ..... shall be guilty of an offence -

and they say that:

is a valid exercise of the power conferred by

sec. 9 of the Constitution upon the

Commonwealth Parliament to make laws

"prescribing the method of choosing Senators."

So really they are saying it is in aid of the

franchise. Mr Justice Isaacs says - at the bottom

of page 384, Your Honours will see a paragraph:

(1) Ultra Vires. - The foundation of the first

ground was sec. 9 of the Constitution.	The
words are:	"The Parliament of the

Commonwealth may make laws prescribing the

method of choosing Senators," ..... The argument

was that the word "choosing" imported

voluntary action, and excluded all notion of

compulsion.

Now, this is what we rely on of course:

That the franchise may be properly regarded as

a right, I do not for a moment question. It

is a political right of the highest nature.

Television(2) 38 SIR M. BYERS, QC 17/3/92

The Constitution in sec. 41 speaks of the

"right to vote."

So, one starts off with the fact that the vote is a political right and it is an individual right then,

and it is a right to vote in an election for a

candidate or candidates, who may have perhaps

proportional representation, but it is a right to

vote in an election. And we respectfully submit to

Your Honours that the right to vote, which the

Constitution mandates, is an informed right, an informed vote, so that you must know who it is you

are voting for, not only his name and his identity,

but that for which he stands, and you must know

what the election issues are so that you can cast

your vote so as to obtain an election that is

representative of the people who are the people

whom the parliamentarians represent.	Now, all
these are truisms.

But the Parliament, in our respectful

submission, in any power it has over elections -

the power cannot rise higher than the source.	So
it cannot absolve itself from the right to make
its - the political parties - policies known by

discussion and allow the elector, if he wishes, to

discuss matters relating to the election. All this

springs from his undoubted private right to cast an

informed vote, and it is embodied in that right.

If that were not so, you could have a case

where the Parliament - and this on one view perhaps

comes fairly close to it - could close off all

election discussion and say all votes are to be
cast in favour of the sitting parties. What they
have done here, of course, is to say, "We'll take
the lion's share - indeed more than the lion's

share - of the discussion time that we've decided

on. So we've taken away your right and we've whatever the Executive Government decides is the substituted a right for ourselves to 90 per cent of	time and the subject-matters which the broadcasters
are permitted to vote. The rest is closed off,
subject always of course to news items and comments
on current affairs".

We submit, Your Honours, that that is quite

opposed to a right to cast an election in a

representative parliamentary democracy.

BRENNAN J: Sir Maurice, I can understand the notion of the

right to vote being an enforceable right, because

remedies are available to ensure that the right is

vindicated.	How does one vindicate a right to be
informed?

Television(2) 39 SIR M. BYERS, QC 17/3/92

SIR MAURICE:	Because it is part of the right to vote. sense, what has been done here is to vindicate the	In a
right.

BRENNAN J:  I understand the way in which you seek to put

it, but if it is a right enforceable by the person
who possesses it and the person who possesses it
says, "I am uninformed and I live outside the area

of any broadcasting system", what does one do to

allow him to enforce his right: transport him to

somewhere where he can see the telly?

SIR MAURICE:  No, all that means as to that individual, the

main items of information do not reach him. But let us suppose you have the alternative, someone

who is - I mean, no case is better than the other -

someone who is within reach of the media and is

accustomed to obtaining, as I would imagine 95 per

cent of the population are, their political information from television and from radio.

Your Honour, the right to be informed is part

of the right to vote, because you are voting for

someone in an election. So you have got to know

who it is and what it is that you are voting for.

A vote without that is just not a vote. Let me
take - all these are just illustrations, of

course - suppose the Parliament were to say, both,

let us imagine, under the corporation's power and

under this, "There will be no discussion in newspapers or in radio or television of any political matter during an election, and that will

be selected, the fact of the election will be
selected as the event which brings the prohibition

into being" .

Your Honour, that would mean that one would go

unknowingly to the poll. Neither candidates could

speak, because you could pass a law saying

candidates cannot speak, candidates cannot inform

the electorate or the elector of what they stand

for. But that notion is inconsistent with his

right to vote. Your Honour, one cannot just say it

is a right to mark a ballot paper. It is a right

to vote for a particular person in a particular

election in relation to particular issues.

BRENNAN J:  I just wonder why you need to link it to the

right to vote as distinct from the essentiality of

the freedom of speech?

SIR MAURICE:  I am coming to that.

BRENNAN J: Promise?

SIR MAURICE:  Certainly, Your Honour. We would say, of course, the second proposition, if you look to this

Television(2) 40 SIR M. BYERS, QC 17/3/92

Constitution you would say there is a right to

freedom of speech, freedom of expression, freedom

of communication. Part of it, in one of its

aspects, this freedom of communication, is referred

to in section 92 but that is only part, when it

deals with intercourse. It deals with all

communication but, of course, it is concerned among

the States. I want to say a word about

section 92 - or perhaps more than a word - later.

So that the first thing, perhaps, we want to

say is that the Constitution creates a right to

vote and the right to vote demands that in relation
to its exercise you have this information upon

which you are entitled to cast your vote. We say

that is obvious from a representative government,

supported by, as it were, the notion of voting and

supported by the notion of representative

governments and political issues.

Your Honours, we concede that is an aspect of

a wider right and we say that - and this is, I

think, our second basis of putting this - citizens of the Commonwealth, upon whose original agreement

the whole structure depended, have a right as such

system to freedom of expression. That may be

subject to some restrictions as to subject-matter,
sedition, for example, may be one; there may be

others. But, normally, you would say, a democratic

society - and that is clearly what the Constitution

set out. It is obvious that these mechanisms were

those of a parliamentary democracy. It is obvious

that it said a representative government. It is

obvious that it is said about a responsible

government. And it is obviously that it gave to

the electors, to the citizen, the right to change

the Constitution.

So that, if one thinks of all these rights,

for the moment, you have an agreement of the people

to unite in an indissoluble federal Commonwealth.

So that was the substantial source of the

Constitution. The formal source of the

Constitution, in those days, was the Imperial Act.

But there is now no power.	The Australia Act, that
has gone.

So, if one thinks of both the formal and

substantial source of the Constitution, these days,

it must reside, in our respectful submission, in

the will of the people of the Commonwealth. So, it

is democratic in the fullest sense, as it always

was. And, Your Honours, it is an essential - so we·

submit - of all democratic societies that you do

have freedom of expression. That is the whole

source of it.

Television(2) 41 SIR M. BYERS, QC 17/3/92

Your Honours have said - at least the majority of the judgments, for example, in Davis v The

Commonwealth - Your Honours will remember the

Bicentennial case where the majority speak about supporting the legislation under the incidental

power and deny validity because of the intrusive

nature of the prohibition on freedom of speech. It

is 166 CLR 79, it is the first full paragraph at

page 100, where Your Honours the majority -

Your Honour the Chief Justice, Justice Deane and

Justice Gaudron - say:

Here the framework of regulation created

bys 22(l)(a) withs 22(6)(d)(i) and (ii) reaches far beyond the legitimate objects

sought to be achieved and impinges on freedom

of expression by enabling the Authority to
regulate the use of common expressions and by

making unauthorized use of a criminal offence.

Although the statutory regime may be related

to a constitutionally legitimate end, the

provisions in question reach too far. This
extraordinary intrusion into freedom of

expression is not reasonably and appropriately

adapted to achieve the ends that lie within

the limits of constitutional power. Your Honour Justice Brennan, at page 116, at the

top of the page says:

Freedom of speech may sometimes be a casualty

of a law of the Commonwealth made under a

specific head of legislative power - e.g,

wartime censorship - or of a law designed to

protect the nation - e.g., a law against

seditious utterances - but freedom of speech

can hardly be an incidental casualty of an

activity undertaken by the Executive

Government to advance a nation which boasts of

its freedom.

Then:

If a special provision were necessary to

suppress fraud -

Your Honour goes on to deal with it: then you would have that special provision. And Your Honours goes

down to the bottom of the paragraph - at the

conclusion of the paragraph, you say:

Sections 22 and 23 are not saved from

invalidity by conferring an unconfined

discretion upon the Authority to consent to a

particular use of prescribed symbols and

expressions.	The expression does not change
the character of those sections.	Nor is

Television(2) 42 SIR M. BYERS, QC 17/3/92

freedom of speech restored by creating a

discretionary authority to allow it.

And we would say, it is not restored by having

public affairs comment - current affairs.	Then
Your Honour goes on:

The limits on the legislative power to

enact penal laws under s. Sl(xxxix) is of
especial importance when the relevant activity
undertaken in execution of an executive power

is the commemoration of an historical event.

Such a commemoration may take many forms,

according to the significance placed upon it.

The form of national commemorations of

historical events usually reflects the

significance which the majority of people
place upon the event. But there may well be
minority views which place a different
significance on the same event, as the present
case illustrates. It is of the essence of a
free and mature nation that minorities are

entitled to equality in the enjoyment of human

rights. Minorities are thus entitled to

freedom in the peaceful expression of

dissident views.

But we say the statements of the majority - and

there is nothing, I think, in what Your Honour

Mr Justice Toohey said, although Your Honour dealt

with the specific grants in section 51 and basis, but it is clear from those views from the

majority of the Court that in our society there was

freedom of expression. Your Honour, if one things

for a moment: what the Constitution went about was

to create a parliament in which was invested the

legislative power. So, then that legislative

power, of course, was restricted. Then the

Constitution went on to create the judicial power.

So, if one thinks for a moment, the presence of a

law maker and the presence of a judicial

adjudicator postulate the rule of law in this

society, and it postulates therefore freedom of

speech, because you must be able to get to - just

as you must be able to speak to your

representative, so you must be able to speak to the

court.

The essence of the federal jurisdiction is the

right to claim relief. So, obviously no law,

Commonwealth or State, could take away your right

to claim relief, or communicate to the courts, and

the courts must adjudicate; what on? On the

validity of the law and upon your subjection to

legal constraints. So the whole notion, in our

respectful submission, is a notion of the rule of

Television(2) SIR M. BYERS, QC 17/3/92

law in this society. And Your Honours will

remember that, as Sir Owen Dixon said, that was one

of the assumptions upon which the Constitution

rested, and of course there are many. When I say

"that" I mean the rule of law and I will just give

Your Honours the reference and remind Your Honours

of the passage, but a rule of law itself involves a

notion that you have freedom of expression.

So, Your Honours, one may well think that when

you have a Constitution setting up a legislature, an executive and a judiciary that the rule of law

is not only implied, it is expressed, because the

purpose of the grant of the power is to subject you

to a legal burden. That is the legislative power.

The purpose of the judicial power is to protect you

against non-legal constraints.

Your Honour, the passage is in 83 CLR 1, and

about the middle of page 193 His Honour says in the

sentence beginning, "Moreover" just above the

middle:

Moreover, it is government under the

Constitution and that is an instrument framed

in accordance with many traditional

conceptions, to some of which it gives effect,

as, for example, in separating the judicial

power from other functions of government,

others of which are simply assumed -

they are there, but they do not have to be

expressed.

Among these I think that it may fairly be said

that the rule of law forms an assumption.

And then he says the rule of law would deny validity to the Act because you have persons'

liberty, or certainly property, subject to the

unexamined discretion of the Parliament, an

unexaminable discretion of the Parliament.

Freedom of expression, Your Honours, is, we

would submit, a guarantee, and we would say the

Court has said it is there. We say it is also

essential to the mechanisms of government, so that

it is not only in the background. It is up front,

if Your Honours will pardon me using that

expression, because that is the way the government

works in the sense that electors are returned and

elections are held, and so on.

Sir Owen said in the same case that the rule

of law is important.	He says at the bottom of
page 187:

Television(2) 44 SIR M. BYERS, QC 17/3/92

History and not only ancient history, shows

that in countries where democratic

institutions have been unconstitutionally

superseded, it has been done not seldom by

those holding the executive power. Forms of

government may need protection from dangers

likely to arise from within the institutions to be protected. In point of constitutional
theory, the power to legislate for the

protection of an existing form of government

ought not to be based on a conception, if

otherwise adequate, adequate only to assist
those holding power to resist or suppress
obstruction or opposition, or attempts to

displace them or the form of government they

defend.

Your Honours, when one thinks of the way this

notion is carried through;. for example, if one
takes even section 9 and section 15. Section 9

says:

Subject to any such law -

that is a law of the Parliament of the

Commonwealth -

the Parliament of each State may make laws
prescribing the method of choosing the
senators for that State.

So, they are talking about a Parliament which, at the time of the Constitution, was a representative Parliament whose residents enjoyed freedom of expression and responsible, and when they talk

about "the Parliament of each State", they are

talking about the Parliament as a continuing

institution and as continuing to possess those

characteristics and one finds that in the sort of

correlative to section 7, which is section 15,

when, in the case of a casual vacancy:

the Houses of Parliament of the State for

which he was chosen shall, sitting and voting

together -

well, if there was only one House, the Parliament

of that House, shall -

choose a person to hold the place until the

expiration of the term -

Now, that is the place of the senator chosen by the

people of the State. So clearly, they are talking

about the Parliament of the State, as a

representative of the people of the State, in the

same sense as the Commonwealth Parliament was

Television(2) 45 SIR M. BYERS, QC 17/3/92

representative, responsible and with the same
rights. When one speaks about it in section 106:

The Constitution of each State -

it is talking about Parliaments so constituted.

For example, one could not say, in our respectful

submission, that a State could amend its law to set

up a dictatorship. That is not the sort of notion

that the Constitution would permit. So there are a

number of cases, Your Honour, which we have

referred to in our notes, from overseas, and I do
not want to read something at tiresome length, but

Your Honours, there are some cases in Canada, and may I just read a passage or two from two of those

only and I just want to refer to some cases of the

United States and I shall be brief in what I have

to say there, because what all this is about, in a

sense, is a truism. The first Canadian case -

these are decisions before - you had the Charter of

Rights - Re Alberta Legislation, (1938) 2 DLR 81,

re an Act to ensure the publication of accurate

laws and information. The passage which I would

seek to read to Your Honours, if I might, is at

page 107. It is the Chief Justice Sir Lyman Duff.

At the top of the page it begins:

Under the constitution established by the

B.N.A. Act, legislative power for Canada is

vested in one Parliament consisting of the

Sovereign, an upper house styled the Senate,

and the House of Commons. Without entering in

detail upon an examination of the enactments

of the Act relating to the House of Commons,

it can be said that these provisions

manifestly contemplate a House of Commons

which is to be, as the name itself implies, a

representative body; constituted, that is to

say, by members elected by such of the

population of the united Provinces as may be

qualified to vote. The preamble of the

statute, moreover, shows plainly enough that

the constitution of the Dominion is to be

similar in principle to that of the United

Kingdom. The statute contemplates a

Parliament working under the influence of public opinion and public discussion. There

can be no controversy that such institutions

derive thereof efficacy from the free public

discussion of affairs, from criticism and
answer and counter-criticism, from attack upon
policy and administration and defence and

counter-attack; from the freest and fullest
analysis and examination from every point of

view of political proposals. This is signally

true in respect of the discharge by Ministers
of the Crown of their responsibility to

Television(2) 46 SIR M. BYERS, QC 17/3/92

Parliament, by members of Parliament of their duty to the electors, and by the electors themselves of their responsibilities to the

election of their representatives.

The right of public discussion is, of course, subject to legal restrictions; those

based upon considerations of decency and
public order, and others conceived for the
protection of various private and public

interests ..... In a word, freedom of discussion

means, to quote the words ..... "freedom

governed by law."

Even within its legal limits, it is liable to abuse -

He then goes on at page 108 in the first full

paragraph:

But this by no means exhausts the matter.

Any attempt to abrogate this right of public debate or to suppress the traditional forms of the exercise of the right (in public meeting

and through the press) would, in our opinion,
be incompetent to the Legislatures of the

Provinces, or to the Legislature of any one of the Provinces, as repugnant to the provisions of the BNA Act, by which the Parliament of

Canada is established as the legislative organ

of the people of Canada under the Crown, and

Dominion legislation enacted pursuant to the

legislative authority given by those

provisions.

Then he goes on, I think, to other matters. Then,

Your Honours, the same considerations are referred

to in Switzman and also at pages 119 to 120 of the

same report by Mr Justice Cannon. At page 119,

Your Honours see the second full paragraph: Under the British system, which is ours,

no political party can erect a prohibitory

barrier to prevent the electors from getting

information concerning the policy of the

Government. Freedom of discussion is

essential to enlighten public opinion in a

democratic State; it cannot be curtailed

without affecting the right of the people to

be informed through sources independent of the

Government concerning matters of public

interest. There must be an untrammelled

publication of the news and political opinions

of the political parties contending for

ascendancy. As stated in the preamble of the

British North America Act, our constitution is and will remain, unless radically changed,

Television(2) SIR M. BYERS, QC 17/3/92

"similar in principle to that of the United

Kingdom." At the time of Confederation, the

United Kingdom was a democracy. Democracy

cannot be maintained without its foundation:

free public opinion and free discussion
throughout the nation of all matters affecting

the State within the limits set by the

Criminal Code and the common law. Every

inhabitant in Alberta is also a citizen of the

Dominion. The Province may deal with his

property and civil rights of a local and

private nature within the Province; but the

Province cannot interfere with his status as a

Canadian citizen and his fundamental right to

express freely his untrammelled opinion about

Government policies and discuss matters of

public concern. The mandatory and prohibitory

provisions of the Press Bill are, in my

opinion, ultra vires of the Provincial

Legislature. They interfere with the free

working of the political organization of the

Dominion. They have a tendency to nullify the

political rights of the inhabitants of

Alberta, as citizens of Canada, and cannot be considered as dealing with matters purely

private and local in that Province. The

Federal Parliament is the sole authority to curtail, if deemed expedient and in the public interest, the freedom of the press and the

equal rights in that respect of all citizens

throughout the Dominion. These subjects were matters of criminal law before Confederation,

have been recognized by Parliament as criminal

matters and have been expressly dealt with by

the Criminal Code.

So, those two observations and the

0bservations in Switzman v Ebbling, 7 DLR (2d) 337.

MCHUGH J: Page 357.

SIR MAURICE:  Page 337, Your Honour.

McHUGH J: Yes, but the passage I think you are after

is 357.

SIR MAURICE:  Yes, Your Honour, well, that is at 357.

Your Honour I do not want to read - these reiterate

the same thing, but the uniformity with which they

are adopted supports, in our respectful submission,

the propositions for which we have contended. Now,

I do not want to read the other passages.	I do
want to remind Your Honours - - -

BRENNAN J: Sir Maurice, the problem is this, is it not,

that if one is going to rely upon the Constitution

as transforming the fundamental freedoms of the

Television(2) 48 SIR M. BYERS, QC 17/3/92

common law into constitutional guarantees, one

needs to be able to define the limits of the

guarantee.

SIR MAURICE:	Yes.
BRENNAN J:	How then, if the relevant freedom is the freedom

of speech, do you define the constitutional

guarantee in this case?

SIR MAURICE: Well, this case is concerned with political

discussion so that aspect of freedom of speech as

relates to the discussion of political issues in

elections, relevant to the right to vote, is

guaranteed, we say, in express terms. When I say

it is in express terms, I say the right to vote

postulates freedom of discussion. Now, you can go

backwards and say freedom of discussion is attached

to the right to vote, or you can say, the right to

vote postulates freedom of discussion, but here,

you have a confined area and so the only problem

is, what freedom of discussion is one talking

about, and we submit, Your Honour, it is freedom of

discussion of political questions in elections.

Now, one does not have to go any further - - -

DAWSON J: But one does, does not one? One has to say at

least by the traditional means?

SIR MAURICE:  Yes, Your Honour, at least by the electors, by

the candidates, by the traditional means, as

Your Honour Justice Dawson says. So, we submit

that is all clear in the right to vote because the right to vote is given, and the right to vote is a

right to vote. No doubt there is only one

traditional meaning really, that you cast your

vote, either you do it on a ballot paper or by

reference to an election in relation to election

issues, and that vote is free so the vote is an

informed vote.

requires but, Your Honours, freedom is obviously a Strictly, that is what the present case broader freedom than that, and certainly the

traditional sort of restrictions, no doubt, would

apply. For example, sedition: you could say you

are not free to promote the destruction of the

society. It may be some form of pornography, that

you could not say that that is an expression of

free expression - pornographic matter. In some

societies it may be blasphemy. Whether it is so in

the present society is a question one has not got
to decide. Because that may imply perhaps

something that is not altogether consistent with

section 116. But I suppose the whole point of

section 116 is that you leave the man to behave

according to his conscience in matters of religion,

Television(2) 49 SIR M. BYERS, QC 17/3/92

that is what it is about: whether he has a

religious belief or he has no religious belief.

Your Honours will remember in the case that

Your Honour had to do with the - unfortunately I

cannot remember the name of it - - -

BRENNAN J: Church of Scientology.

SIR MAURICE:  Church of Scientology, yes, Your Honour, which

contains a very illuminating, if I may be permitted

to say so, discussion of section 116 and what

freedom of religion involves.

That is the same sort of idea, freedom of

conscience. Freedom of expression in a society

governed by the rule of law means, in our

respectful submission, that you can express your

opinion - I know this states the problem - subject

to any legitimate restriction. What are the

legitimate restrictions? Well, they cannot be

restrictions on the exercise of political rights

given by the Constitution because you are

contradicting the Constitution, and you cannot do

it, so we submit, because that is part of your

right to vote.

Your Honour, I know I am repeating myself and

I do not want to do it, but, however, I have, so I

ask Your Honour to bear with me. I promise not to

do it again. My friend, the Solicitor for the

Commonwealth, doubts my capacity to restrain

myself.

Now, Your Honours, could I now go to a case in

the·Supreme Court of the United States. The case

is Robertson v Baldwin, (1897) 165 US 275. The

only part we would wish to refer to is very brief,

and it is to this effect, that the various

amendments really gave effect to the rights that
inhered in the people of the United States.	It is
at page 281, and this is the majority. It
concerned the right to arrest seamen who had
deserted ship. At 281 the majority say:

But we are also of opinion that, even if

the contract of a seaman could be considered
within the letter of the Thirteenth Amendment,

it is not, within its spirits, a case of

involuntary servitude. The law is perfectly

well settled that the first ten amendments to
the Constitution, commonly known as the Bill

of Rights, were not intended to lay down any

novel principles of government, but simply to

embody certain guaranties and immunities which
we had inherited from our English ancestors,

and which had from time immemorial been

subject to certain well-recognized exceptions

Television(2) 50 SIR M. BYERS, QC 17/3/92

arising from the necessities of the case. In

incorporating these principles into the

fundamental law there was no intention of

disregarding the exceptions, which continued

to be recognized as if they had been formally

expressed. Thus, the freedom of speech and of

the press does not permit the publication of

libels -

whether that is totally true now may be open to

question -

blasphemous or indecent articles, or other

publications injurious to public morals or

private reputation; the right of the people

to keep and bear arms -

and so on. They go through them and they consider

the various freedoms. The point that we wish to

refer to is to say, "Well, what the guarantees are

doing is just expressing the notions that are

inherent in the political organization."

So, Your Honours, when one comes to cases that

deal with the first amendment such as Buckley v

Valeo, 424 US 1, and the passages I wish to refer

to are pages 14 to 15 and 17 to 20. Also, the

First National Bank of Boston v Bellotti,

435 US 765, at 788 to 792. I shall not read the

second. These cases say the same things and

perhaps if I might be permitted to just refer to

two passages from Buckley v Valeo, which is an

enormously lengthy case, Your Honours, but it was

concerned with the limits to political

contributions to candidates, most of which were

struck down. At page 1. I am reading from the

headnote. What it did was:

limit political contributions -

to candidates for federal elective office -

by individuals or groups ..... to $1,000 ..... by

political committees to $5,000 -

to any single candidate per election contributor -

limit independent expenditures by an

individual -

relative to -

a clearly identified candidate for federal

office to $1,000 per year -

per candidate and so on.

Television(2) 51 SIR M. BYERS, QC 17/3/92

It is the principle with which we are

concerned and, Your Honours, that is at page 14

where the court - or the majority, in any event,

set out the principles. They say, at pages 14 and

15:

The Act's contribution and expenditure

limitations operate in an area of the most

fundamental First Amendment activities.

Discussion of public issues and debate on the

qualifications of candidates are integral to

the operation of the system of government

established by our Constitution. The First

Amendment affords the broadest protection to

such political expression in order "to assure (the) unfettered interchange of ideas for the bringing about of political and social changes

exposition of ideas," ..... "there is

desired by the people." ..... Although First

practically universal agreement that a major

purpose of th(e) Amendment -

that is the First Amendment -

was to protect the free discussion of

governmental affairs ..... of course

includ-(ing) discussions of
candidates ..... "This no more than reflects our
"profound national commitment to the principle
that debate on public issues should be
uninhibited, robust, and wide-open," ..... In a

republic where the people are sovereign, the

ability of the citizenry to make informed

choices among candidates for office is

essential, for the identities of those who are

elected will inevitably shape the course that

we follow as a nation.	As the Court
observed ..... "it can hardly be doubted that

the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office."

Now, Your Honours, we say, of course, what they are

really talking about there is the right to vote,

and they come back to it and mention it again at

pages 17 to 210 - Your Honours, that is a fairly

long passage.

Then, the conclusion they come to is that the

restrictions on contributions were invalid as

interfering with the First Amendment - freedom -

and they discuss that, by reference, at page 17.

They deal with this problem, I think, that perhaps

Your Honours adverted to, in the sort of

proportionality notion:

Television(2) 52 SIR M. BYERS, QC 17/3/92

The interests served by the Act include

restricting the voices of people and interest

groups who r ve money to spend and reducing

the overall	~ope of federal election
campaigns.	though the Act does not focus on
the ideas -	~ssed -

and so on. The,:, they say these restrictive

provisions cut down the right of freedom of

communication and for that, are invalid. At

page 18, they say:

The crit_cal difference between this case and

those time, place and manner cases -

that is where restrictions are upheld -

is that the present Act's contribution and

expenditure limitations impose direct quantity

restrictions on political communication and

association by persons, groups, candidates,

and political parties in addition to any

reasonable time, place, and manner regulations

otherwise imposed.

Your Honours, we say that those authorities from

Canada and the United States support what is

apparent in the Constitution itself, and might I
just say that in relation to the United States
Constitution, Your Honours,

Professor Harrison Moore pointed out, that although

there were differences between the United States

Constitution and the Australian Constitution, he said the democracy of the Australian Constitution

was its own and was more complete than that of the

United States.

Could I just hand Your Honours up copies of

both the first and second edition.	The passages in
the first edition, that is the 1902

the bottom of page 328 - he says:  edition, are at

In one notable matter, the Australian

Constitution -

that is the first full paragraph on the page -

differs markedly from that of the United

States. In America, the checks and balances

devised by the Fathers of the Constitution

were deemed an insufficient restraint of

power, and were immediately supplemented by a

comprehensive Bill of rights, which placed the

liberties of the citizen under the protection

of the Constitution, and secured them against

any attack by the Federal Government. More

remarkable still in a federal constitution,

Television(2) 53 SIR M. BYERS, QC 17/3/92

there were a few provisions protecting the

rights of the citizens of the States against

their own States Government. It need hardly

be said, that this spirit of distrust has so

grown that the States Constitutions put many

and varied rights of the citizen beyond the

reach of the legislature -

Then he goes on:

From the Australian Constitution such

guarantees of individual liberty are

conspicuously absent. When the Constitution

left the Adelaide Convention, it provided, that

no State should make any law prohibiting the

free exercise of any religion ..... and that a

State should not deny to any person within its jurisdiction the equal protection of its laws

(section 40). These provisions, however,
disappeared, and every restraint imposed by the

Constitution upon Commonwealth Parliament or

State (except the provisions of section 116),

may be referred to federal needs. When it was

found, that the section, prescribing uniformity

of Commonwealth taxation, might be read to

protect individuals or classes against

discrimination, care was taken to substitute

words of geographical description. The great

underlying principle is, that the rights of

individuals are sufficiently secured by

ensuring, as far as possible, to each a share,

and an equal share, in political power.

And then, at page 327, just below the middle

of the page, there is a three-line paragraph, it

says:

The predominant feature of the Australian

Constitution is the prevalence of the

democratic principle, in its most modern

guise.

It is true, that, in a federal

government, the simple democratic plan of pure

majority rule must make compromises with the

principle of State right. But that is the

only compromise -

and that he compares, he goes on:

The federalism of Australia is the federalism of the United States; her democracy is her

own. I only mention that to indicate to Your Honours

that the cases that we have referred to are equally

Television(2) 54 SIR M. BYERS, QC 17/3/92

applicable, in our submission, to the Australian

Constitution.

BRENNAN J: That is against you, is it not? Is that not

against you, that passage?

SIR MAURICE:  No. What he is saying is that the democracy

provided by the Constitution enabled the protection of the individual rights, and that you did not need the provisions that were inserted in the United

States Constitution.

BRENNAN J: In other words, you do not need the

constitutional guarantee; you have got political

power.

SIR MAURICE:  Your Honour, you have got political power and

the question is what political power. I mean, on

any view you have the right to vote. I keep on

getting back to the right to vote and I do not want

to repeat what I said. But what I have said is

really not inconsistently, because the wider the

motion of democracy is the more absolute is the

right to have an informed vote, and I submit that

that supports us. However, that is what I say

about it. I am sorry, Your Honour, I see I have been a long time, and I will be much briefer. I

see Your Honour looking at me with sadness.

MASON CJ:  I was just bearing in mind promises that you made

during the course of the morning.

SIR MAURICE:  Your Honour, I am covered with confusion and I

will endeavour to abide in the most strict - - -

MASON CJ: Not confusion; embarrassment.

SIR MAURICE:  Or both, Your Honour, confusion and

embarrassment.	Your Honour, I shall not be long
afterwards.	I just want to say a word about
section 92 and I want to say a word about

acquisition, but the rest - I will leave the States

to my friends and sit down.

MASON CJ:	You will take this up at 2.15, will you?
SIR MAURICE:	Yes, Your Honour.

MASON CJ: Very well, we will adjourn now and resume at

2.15.

AT 12.44 PM LUNCHEON ADJOURNMENT

Television(2)	55	SIR M. BYERS, QC	17/3/92
UPON RESUMING AT 2.17 PM:
MASON CJ: Yes, Sir Maurice.

SIR MAURICE:	Your Honour, two matters before I come to section 92: one, Radio Australia, it is part of the
Australian Broadcasting Commission and so is
subject to the prohibition; advertisement,
Your Honour, it has been adverted to by this Court,
arising out of the question Your Honour the
Chief Justice put to me in relation to this Act.
The Director of Public Prosecutions v United
Telecasters Sydney Ltd, 168 CLR 594, the passage is
at page 598 in the judgment of Mr Justice Brennan
and Mr Justice Dawson and Justice Gaudron. Do
Your Honours see the concluding paragraph?

It was quite permissible for the Crown to have

called evidence of facts tending to establish

that the television segment was an

advertisement. The evidence in question was

of such a kind. Material which is designed or

calculated to draw public attention to a

product or to promote its use may constitute

an advertisement:

Then they refer to a decision of Mr Justice

Gibbs,Deputy Federal Commissioner of Taxation v

Rotary Offset Press Pty Ltd. And that was affirmed

by the Full Court, where such words appear. The

question is whether it bears that meaning in this

context. We submit it does.

Your Honours, having cleared those matters,

may I come to section 92. I want to say two

things, Your Honours, and they can be brief. First

of all, that intercourse in section 92 includes

communication - of course, interstate

communication - and I would not have thought there

was much problem to that.

The second is that section 92 does not imply

that communication otherwise is not within the

constitutional freedom. One thing I want to say

about section 92 is this, Your Honours, that

certainly one of its effects is to gather together

and to state in the form of an aphorism or an

affirmation the effect of sections 86 and 88 and

90, because the freedom which is to be absolute

will only come into being on the imposition of

uniform duties of customs.

That is brought about by 86, 88, as

Your Honours will remember, and 90, which vests in

the exclusive power of the Commonwealth excise,

Television(2) 56 SIR M. BYERS, QC 17/3/92

customs and bounties. So you had the three

mechanisms for protectionism taken away from the

States, vested in the Commonwealth but only on the imposition of uniform duties of customs, as

section 90 says.	Then you have 92 coming and
saying:

On the imposition of uniform duties of

customs, trade, commerce, and intercourse

among the States ..... shall be absolutely free.

What they were doing was stating the fact that

the mechanisms of protection were now in the

Commonwealth, and those mechanisms were in those

hands, in the Commonwealth's hands, control, by

section Sl(i) and section 99 so that you could not

use the trade commerce power to discriminate

between States. Section 99 says "preference", it

is the same sort of idea. Section Sl(ii) says you

cannot "discriminate" by use of your taxation power
so excise customs, and bounties on the production

of goods are to be uniform.

So, once you have the imposition of uniform

duties of customs, you have the States deprived of

the mechanisms of protectionism. Now, certainly

that is in trade and commerce and so you have the

uniform external tariff, and as to trade and

commerce you have these means vested in the

Commonwealth and subject to restrictive exercise.

Then Your Honours have said in Cole

v Whitfield that so far as the trade and commerce

is concerned section 92 is directed to

protectionism, and certainly we would not wish to

say that section 92 has no mandatory operation
because, clearly, Your Honours were saying that it
has in Cole v Whitfield, and the point of us

mentioning, as it were, that it is an affirmation

is to say that part of its function is prophetic,

Your Honours refer to in Cole v Whitfield, and we	same way as Sir Henry Parkes resolution, that in the sense it speaks to the future, just in the
set out in our written submissions, speak of "the
trade and intercourse shall be absolutely free".
So it is a prophetic use of "shall. So it is
susceptible of an operation which is not mandatory but we would not suggest that it has no mandatory
effect.

When one comes to intercourse, you can clearly

have commercial intercourse which one might say

would be caught within the notion of trade and

commerce among the States. So one would say, "In

relation to those words, protectionism is the

answer", and as I would understand what

Your Honours said in Cole v Whitfield, Your Honours

Television(2) 57 SIR M. BYERS, QC 17/3/92

said, "Well, you must have a discriminatory law in

relation to trade and commerce which is

protectionist."

That leaves intercourse unaffected except to

the extent, perhaps, that the word "intercourse"

also may embrace some form of commercial

intercourse. But in so far as it does not embrace

commercial intercourse, that it was talking about

communication, then it is saying that communication

across State boundaries, whether by passage of the
individual citizen or sending his messages, is

absolutely free.

McHUGH J: That is a strange place to find a constitutional

guarantee of just plain ordinary intercourse, is it

not?

SIR MAURICE:	It is a strange place to find section 92.
McHUGH J:	It is headed finance and trade and it begins with the words "On the imposition of uniform duties of
customs", was there no constitutional right to
communicate between the States before the imposition of uniform duties?
SIR MAURICE:	Your Honour, I am not saying there was not.

That is what I am saying. That is why I am saying,

"It is not an exclusive charter of freedom."	Of
course there was - obviously, there was.	The

answer to Your Honour Mr Justice McHugh's question is, "Of course there was, there was a right.", and

it derived from the beginning of the Constitution.

Why does section 92 touch it, why does it mention it? It mentions it because with the abolition of

the State duties of customs, which are referred to

in section 86, control and collection of customs,

and the second arm of section 90, it talks about

the cessation of customs laws of the States, you

had ceased the State power to impose protectionist

duties and as a means of collecting customs to

impede intercourse.

So whether you were engaged in commercial

intercourse or not, you still have to pass the

customs barrier. So that one can understand a

reason for putting intercourse in there, of course.

McHUGH J: Historically, the phrase "trade and intercourse"

was in the Act of Settlement?, was it not, if I

remember rightly. I am not sure.

SIR MAURICE:  Yes, Your Honour, that is possibly a bit

remote.

MCHUGH J: Except, I think, it may have been the source of

the term, when it was first used.

Television(2) 58 SIR M.BYERS, QC 17/2/92

SIR MAURICE: Well, it may be a closer analogy, and I say

this with great respect to what Your Honour said to

me, it may be what Sir Henry Parkes, in his

resolution, was saying. He said, "Well, what will

happen will be customs duties vested solely in the

Commonwealth, and then on the imposition of" - I do

not know whether he used exactly that phrase - but

"trade and intercourse shall be absolutely free."

Your Honour will remember that this picks up almost

those very words, and maybe that is its genesis,

and somewhere or other - I think Your Honours refer

to this in Cole v Whitfield - they talk about, I

think it is "a layman's piece of language".

That is really to the point of saying -

McHUGH J: It is the words "absolutely free" which is the

layman's piece of language, not the words, "trade

and intercourse".

MR MASON:  Yes, that means the whole idea is a piece of

layman's language, Your Honour. So what that

means, Your Honour, is you have section 92 on this

view as having a sort of affirmation, and so you

can understand it putting in intercourse, because

they want to say, "No State barriers; all State

barriers have gone. The boundaries have gone. The State Customs Acts which created the barriers, they

have gone too." That is why it is there, so we

respectfully submit.

The only other thing I want to say about

section 92 is that it obviously was not, so we

would respectfully submit, intended to be an

exhaustive statement of freedoms because it does

not touch the right to approach the federal

institutions. It does not say, "You have a right

to communicate to a federal institution.	You have
a right to approach the court.	You have a right to

challenge the validity of Acts of Parliament." and

so on." And yet clearly, as Crandall and the

earlier case which we have referred to in Smithers;

Ex parte Benson, 16 CLR 99, they have said those

rights are written into the Constitution, and they

are not cut down in any way by section 92.

MASON CJ:  We were taken to these cases, of course, on the

earlier occasion in Nationwide News.

SIR MAURICE:  Your Honour, I have not the faintest intention

of taking Your Honour to them. I know what is in

Your Honour's mind, I think. That is all I wanted

to say.

So therefore, we say for those two reasons you would say intercourse includes communication, and

there is nothing in section 92 which would deny a

Television(2) 59 SIR M.BYERS, QC 17/2/92

right of communication before the imposition of

uniform duties of custom; so I would just dissent

from what Your Honour Mr Justice McHugh - I would

say, "What happened before the imposition of

uniform duties of custom?" surely.

That is all I wanted to say about it, if

Your Honour pleases. So we would say as to the two

plaintiffs who broadcast their electromagnetic

impulses across State boundaries, that is

intercourse; it is not commercial intercourse, as

between the sender and the recipient, it is just

messages. It may be that they are paid to send

some of those messages, but that is not the

interstate passage. The interstate communication
is between sender and the man who switches on his

television set and recipient, Now that is all we

would wish to say.

Can I now say something, Your Honours, about

section Sl(xxxi). I do not want to repeat what we

have said in our written submissions. All I want

to say, Your Honour, is that the right to set up

television stations and broadcasting stations lay

in the public domain. The Commonwealth Act took it

away; that is section 6A(l) of the Broadcasting

Act. Then the licensing provisions released that

prohibition to a specific limited class who are

approved. So, your sole right to transmit and

derive money springs from the licence. So, it is a

Commonwealth grant, just as if the Commonwealth

granted you a licence to sell liquor, it is the

same, or mine for gold on Commonwealth land, or
mine for oil in the seabed, which, as Your Honour

will remember, is subject of the petroleum and

minerals legislation.

All those are rights deriving from

Commonwealth legislation. The licences confer

rights and when the Commonwealth takes away the

licence, it takes away the grant, so it acquires

the right, because the sole source of the right

lies in the grant and when you take away the grant

you acquire the right.

Then we say, of course, in this case there has been an acquisition of the right to broadcast

advertisements for money, which is granted by
sections 99 and 100 of the Broadcasting Act,
because they have said you will broadcast, but not

for money, free. So, they have taken away, they

have diminished the grant and they have diminished

it to a significant degree so that what was in the

bundle of rights has been diminished by a law of

the Parliament. So it is as if one of the rights

has been taken out, namely the right without

restriction to charge for advertisements, because

Television(2) 60 SIR M. BYERS, QC 17/3/92

under the statement of claim, that was an

unrestricted right. And there has been substituted

an obligation to send free advertisements and we

say that is an acquisition of the right to charge,

and therefore it is an acquisition of property.

BRENNAN J:  What would you say about the application of that

law, not to an existing license, but to a future

renewed license?

SIR MAURICE: Well, a future licence, you have got no right.

I am sorry, Your Honour is meaning a renewed

licence.

BRENNAN J: Yes.

SIR MAURICE: Well, I suppose I would say that if the

licence lasts for five years, as I think it does,
then that is the grant and then, under the Act you
get a right to renewal, in a sense that the power
to refuse is restricted by the Broadcasting

Tribunal, but it would be difficult to say that it

would not be on the terms of the Act as amended.

BRENNAN J: In the event of a renewal.

SIR MAURICE:  Yes.

BRENNAN J: If that is so, does that mean that we should

read down the Act, if this is the only ground of

challenge that survives?

SIR MAURICE:  No. What we are talking about are these

licences now with these rights, and they have been

taken away. Of course, we always say that

independently I can establish the same rights

otherwise. In other words, you can say the right

has been taken invalidly away independently of

section Sl(xxxi) because of the other argument.	I
think I have kept to my obligation.

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

South Wales?

MR MASON:  Your Honours, we have handed in an outline of our

submissions. However, having had the benefit of

the Commonwealth's submissions, what we have done

is prepared an amended outline which does not

remove any material that is in our material, but

adds by paragraphs referred to as (a) and (b)

additional material, as it were, joining issue with

the Commonwealth's submissions. If I could hand

that document up, which replaces the outline the

Court already has.

MASON CJ: Thank you.

Television(2) 61 17/3/92

MR MASON:  There are one or two minor corrections and

additions in other paragraphs, but none such as

change the thrust of the material that we had

previously put. There is one additional argument

about acquisition on unjust terms which I will put

when we come to it, if I may. Your Honours, does

the Court wish to read that first, or should I just

start on our outline?

MASON CJ:  We did read the original outline. If you would

like to direct our attention to what	is new in what
you have just handed up, that may be	of some
assistance.

MR MASON:  Yes. They are the paragraphs referred to at the

top of page 1.

MASON CJ: Are you foregoing a reply?

MR MASON:  No, Your Honour, hopefully shortening it

nevertheless.

MASON CJ: Yes.

MR MASON:  Your Honours, this· morning there was reference to

the distinction drawn by the Act between

advertisements which are proscribed in 95B, C and D

and news items which are permitted in 95A.	We
would submit that there are two critical

distinctions and, therefore, two reasons why the

gateway opened up by 95A is not as broad as perhaps

might otherwise be the case.

The first turns upon the provisions of

section 100(3) of the Broadcasting Act, which makes
special provisions relating to advertisements which

requires licensees:

intending to broadcast advertisements -

to -

publish particulars of -

their charges, and provides in subsection (3)

that -

A licensee shall not, without reasonable cause, discriminate against any person

applying for the use of his advertising

service.

In our submission, that regime which, as it were,

immediately predates the legislation which is

challenged in this case, gives a qualified right to

access to all who are willing to pay for

advertisements and, of course, a news item, you are

Television(2) 62 17/3/92

dependent upon the producer of the news program to

publish the message.

The second distinction is that an

advertisement, of course, gives control over the content, really turning the "pay the piper, call

the tune" notion, as it were, to our advantage and

a news item, of course, for the same reason, is

dependent upon the whim of the producer of the news
service and perhaps the decision of the controller
of the network.

Your Honours, my learned friend, Sir Maurice, has referred the Court to a judgment of this Court

in DPP v United Telecasters. There is also a

discussion of the notion of advertisement in a

judgment - and I have got copies of that judgment

to hand up to the Court - of Mr Justice Spender,

Queensland Television Ltd v Australian Broadcasting

Tribunal, (1987) 17 FCR 246. Only portion of the judgment is handed up to the Court; the critical

discussion is at pages 262 and 263. The case

involved what was said to be advertisements, which

portrayed the Queensland Government in a favourable
light and for which the government had prepared for

production on television programmes, and after

reviewing some of the cases about the meaning of

"advertisement" at pages 262 and 263,

Mr Justice Spender, about point 7 on page 263 spoke

of:

In the ordinary meaning of the word, there can

be advertisements of political parties,

advertisements promoting a particular conduct,

a particular viewpoint, or a particular

lifestyle.

Your Honours, also slightly by way of preliminary, may I take the Court to the affidavit

which was filed of Terrence Richard Jessop, which
we submit tenders relevant constitutional facts,

showing the impact of this legislation in the New

South Wales context. If I may, I will not take

Your Honours to the specific sections of the Local

Government Act; they are sections 30(2); 35; 38(4) and 39(l)(d). Very briefly, their combined effect

is that for a large number of reasons, an

extraordinary vacancy can occur in a local

government office. If that vacancy occurs, there

must be an election within three months, the date

to be arranged by discussion with the Electoral

Commissioner of New South Wales. That does not

apply if the extraordinary vacancy occurs in the

year in which there is to be a general local

government election and they are to be held every

four years. The last such general election in New

South Wales was 1991 and it is for that reason that

Television(2) 63 17/3/92

1990 has been chosen as a representative year to

show the impact of this legislation because of the

sometimes or always fortuitous occurrence of local

government elections.

Does Your Honour wish me to formally read the

affidavit or -

MASON CJ:  No, there is no occasion to do that. Draw

attention to anything that you want to, but there

is no need to read it.

MR MASON:  Thank you. The deponent deposes to the

by-elections of a local government nature and of a

State government nature that occurred in 1990. He says that what occurred in 1990 was typical - that is in paragraph 5 - of other years, except of

course those in which there is a general election.

Then, in the two charts which are at the back of the affidavit, and which are not very clear and so

we have had them reproduced in a more readable form

- I am handing up 10 of each chart.

The first chart which is a reproduction of

TRJl shows that in 1990, throughout the State,

there were 32 extraordinary elections in local

government areas and six State by-elections. The

effect of that was that 319 of the 365 days were

taken up in a state of election, as it were.

In the second chart we have confined ourselves

to the areas serviced by the Sydney commercial

licensees. They extend up to the Blue Mountains

area and that shows that even in that area 290 days

are taken up. The impact of that is that because

of the provisions to which my learned friend,

Sir Maurice, took the Court about the requirement

to limit one's signal during a by-election, and the

impossibility, obviously, of doing that, if there

is a by-election even in the Blue Mountains there

is, effectively, a closure of television

advertising anywhere within the metropolitan area

and, therefore, for 290 days of the year there is

such a ban.

Your Honours, our first group of submissions

advances the argument that the legislation or the
provisions which we challenge, in the first
instance, 950(3) and (4), which are the provisions
dealing with State elections and the ban upon State

governments, their authorities and persons

generally, from producing political advertisements

in the electronic media and State elections. For

our part, we do not concern ourselves with the

self-imposed ban upon the Commonwealth, which, of

course, may be justifiable on additional grounds

Television(2) 64 17/3/92

than the grounds in which the law must pass muster

to attack the States' interests.

But 95D in (3), in our submission, interfere

substantially with the functioning of the constituent organs of the State and their

structural integrity. The reason for that is that

they affect the very composition - or they have a
tendency to affect the composition of the

legislature and, necessarily, of the executive,

because of our system of responsible government.

We would respectfully start from a different

position to that which my learned friend
Sir Maurice started, where he took Your Honours to

the individual right to vote and said that flowing

from that, there are rights of information. I know

he did not confine himself to that, but that was

the way he took the argument.

We are not trying to tease out a right to

information from a right to vote. We are, however,

trying to show that democratic responsible

government assumes that those who wish to provide

information that is relevant to the choices that

electors will make will not be prevented from doing

so without proper cause.

Because of the significance to our whole

polity of the election process in forming the

composition of the legislature and thereby of the

executive, and because that applies in certain

times and places with critical importance even to a

by-election - even a by-election can be vital, and

yet this legislation seems to assume that

by-elections do not count, because it only allows

free time and policy launches to be provided in

~elation to general elections. Yet in our current

political climate, and certainly in New South Wales
but elsewhere, a by-election can be significant to

the formation of government and the control of

Parliament.

We would submit that the choking and restraint

of information relevant to voter choice impacts
adversely and in a constitutionally impermissible

way, because not only does it affect the way voters

will respond at the ballot box, it affects the way

governments are kept accountable in between

elections. It is the accountability, the threat

through proper methods of conveying pleasure and

displeasure at government, that is of the essence

of a democratic political system and has impact

upon the way governments act from time to time.

May I just read one passage from the judgment

of Your Honour the Chief Justice in Commonwealth v

Television(2) 65 17/3/92

John Fairfax, 147 CLR 39, at page 52. That was the

case involved with the interlocutory injunction to
protect a right of confidence and the impact of the

doctrines of confidential information in a

governmental context.	Your Honour said at the top
of page 52 that:

It may be a sufficient detriment to the

citizen that disclosure of information

relating to his affairs will expose his

actions to public discussion and criticism.

But it can scarcely be a relevant detriment to

the government that publication of material

concerning its actions will merely expose it

to public discussion and criticism. It is

unacceptable in our democratic society that

there should be a restraint on the publication

of information relating to government when the
only vice of that information is that it

enables the public to discuss, review and

criticize government action.

Your Honours, in this first part of our submission

we are, of course, concentrating upon the impact of
the legislation upon the rights of individuals to

access to the airwaves as a basis for voicing

criticism of government although we also attack

95D(3), which places an embargo upon advertising by

governments as well. Perhaps an analogy, although

one cannot take it too far, is in the emerging

doctrines about informed consent to medical

treatment where an uninformed consent is seen in

law as being no consent at all, and we would submit

that it is vital to those who wish to participate

in the electoral process to be able to convey

information to the electors.

Your Honours, as we submit in paragraph 2A,

the Commonwealth submissions seem to proceed on the

basis that provided the machinery is working

smoothly, it does not matter that nobody knows what

is happening, and on that basis one could envisage

a democracy in which there was a single party State

in which each elector knew nothing about what

choices, if any, were available to them.

May I be permitted to read a short passage

from the judgment of Mr Justice Holmes in Abrams v

United State, 250 US 616, at page 630, a dissenting

judgment of His Honour. It is about point four on

the page. It is not a very long passage:

But when men have realized that time has upset

many fighting faiths, they may come to believe

even more than they believe the very

foundations of their own conduct that the

ultimate good desired is better reached by

Television(2) 66 17/3/92

free trade in ideas - that the best test of

truth is the power of the thought to get

itself accepted in the competition of the

market, and that truth is the only ground upon

which their wishes safely can be carried out.

That at any rate is the theory of our

Constitution.

In a sense, that is a restatement of the classical

argument by John Stuart Mill, and attached to the

amended submissions is the passage from his work on

liberty where those thoughts are stated.

We submit that the Commonwealth's submissions

really involve an internal contradiction in that

they argue on the one hand that this impact is very

minor because you can convey information by other
means. After all, they say, you have got the

access to the press; to which we say, for how long?

You have got access to handbills and other means of

conveying information, yet we would submit that a

right as essential as this cannot be encroached

upon by progressive steps if the first step is of
the significance of this one and we would submit

that the underlying assumption which led to the

passage of this legislation was that the market, if

one can use these terms, is using and will continue

to resort to the media to convey information

relevant to the electoral process and that market

needs to be controlled by the legislation. There

is an internal contradiction, in our submission.

Your Honours, in section (B) of our

submission, we look more to the impact of the

legislation upon the State executives' interests,

and in this regard, the challenge is directed at

95B.(3), 95C(4) and 950(3). May I go to 95B(3)

first. That imposes an unconditional, unqualified

ban -

during the election period in relation to an

election or a referendum -

upon broadcasting -

a political advertisement for or on behalf of
a government, or a government authority, of a

State. "Political advertisement" for present purposes

means -

matter intended or likely to affect voting in

the election or referendum concerned; or

matter containing prescribed material.

Television(2) 17/3/92

The definition of "political matter" itself draws

out the conclusion that this Act goes beyond a ban upon material that is likely to affect voting, and

when one goes to the extended definition of

"prescribed material", one sees a number of types

of advertisement that do not themselves necessarily

have any relevance to any election, and certainly

no relevance to the voting in that election, and

yet they are proscribed.

Vital to our submission on this part of our case is the argument that State government, or

State governments generally, does have an interest

of its own to have resort to the electronic media,

and that interest is not necessarily to be equated

to that of any political party, and may be an

interest that expresses itself through a desire to

intervene in the hustings, as it were, in a federal

or territorial election context.

The Commonwealth has accused us in their

submissions of, in effect, seeking to revive the

doctrine of implied immunity of instrumentalities

by saying the government is seeking to free itself

from a general Commonwealth law. The State must

take the Commonwealth law as it finds it, in

effect, it is said against us. But the thrust of

this argument we are seeking to make is that it is

because the Commonwealth laws, when passed, will

have paramount force either because they change the

Constitution, or because they will have effect via

section 109 of the Constitution, that the State

government may have an interest in seeking to

persuade the electors at the federal sphere to

support or not support a particular proposed

policy.

Your Honours, unlike some groups who are given

rights in this legislation, the State government

has no right of free time. The State government's

rights are not affected by what is put against it	by those who do have rights of free time or rights	of access of charitable organizations, and in that
regard section 95A(3) is really a very broad permission to have what could very often be not
necessarily a "free kick" because they will have to
pay for it, but a kick at a State government policy.
Charitable organization is d~fined, but defined very broadly, and they may publish any advertisement that is aimed at promoting the objects of the organization provided it does not,
explicitly, I emphasize that word:

advocate voting for or against a candidate in

an election or a political party.

Television(2) 68 17/3/92

So, a charitable organization that was promoting

some environmental issue, to take an example, could

advocate with the most explicit detail its policy,

and as long as they did not say, "And what's more

don't vote party X", they would be within the

exemption and the State government, or a State

government agency, would be powerless to respond to

it.

Another example which occurred to me in the course of a question Your Honour Justice Brennan put this morning, of a remark from Your Honour,

there could be a news item or a comment in a news

item which fairly, or unfairly, portrayed a State

government policy, or a policy of a government

agency, there would be no right to respond to that

by any means, the only right would be to ring the

producer of the news programme, or perhaps to try

and get some time through a talk-back programme.

Your Honours, in paragraphs (5) to (8) we have

teased out various submissions in propositional

form because of the extended definition of

"prescribed material", and in paragraph (9) we seek to give some examples of the sort of advertisements that would be banned under this legislation. The

first category would be broadcasts on behalf of a

State government during a federal constitutional

referendum in which there were a proposal to

abolish the States, and to extend Commonwealth

power or to insert some controversial Bill of Right

provision.

The States would also be prohibited, under

this legislation, from broadcasting any

advertisement in the electronic media in which

there were an issue in a federal election affecting

the States vital interests, for example, an

endorsement in principle of a proposed

constitutional amendment.	One can envisage a
federal election in which, as it were, the foot is

in the water to see whether there is a mandate to

be given for a subsequent electoral amendment, or

reduction of the level of State grants, or some

other significant displacement of the status quo in

relation to the respective roles of the States and

the Commonwealth, and we submit it makes it worse,

in a sense, that people advocating the opposite

position have used free time to do so, that the

State might wish to respond to advertisements on behalf of charitable organizations, or a State

government might wish to respond to a news

broadcast or comment flowing from it.

Example No (3) is, in fact, based upon a real situation, and since the Broadcasting Tribunal is a

defendant in these proceedings I would seek to hand

Television(2) 69 17/3/92

to the Court a copy of a directive given by the

Broadcasting Tribunal which, effectively,

prohibited the Wollongong television station
broadcasting a television advertisement which said,

in effect, ttPrivatization is good for youtt, on the

basis that privatization was an issue in the recent

ACT election, albeit privatization of the ACT

Government. The mere fact that the New South Wales

advertisement was directed at privatization in the

New South Wales context was not enough, at least

according to the tribunal, and on one reading of

the legislation, to save the advertisement.

The reason for that is because of the

definition in 95C(7) of prescribed material,

including material which contains an express or

implicit reference to:

(c) an issue submitted or otherwise before

electors in that election;

I have ten copies of the advertisement and of the

record of the Broadcasting Tribunal's decision

prohibiting the ad.

Your Honours, on our reading of the

legislation, it would not have mattered even if the

broadcast were from a Sydney television station

that did not have direct coverage into the

Australian Capital Territory, because if one looks

at section 95C(4), there is no spatial element with

respect to the prohibition. There is the temporal

element:

A broadcaster must not, during the

election period in relation to an election to

the legislature -

and that means the Territory legislature, but the

ban on a State is otherwise universal. That ban

applies according to the fair reading of

section 95C simply because of the concurrence of

the issues, regardless of whether the State

government broadcast intrudes at all into the

electoral area.

The same argument would apply, in our submission, with respect to an election taking

place in Western Australia where there was to be an
advertisement in New South Wales, and an election

in Western Australia could include a by-election.

That is the proposition we make in example No (7)

at the bottom of page 7.

Example No (4) of a proscribed broadcast would

be one issued on behalf of the State police or the

Independent Commission Against Corruption seeking

Television(2) 70 17/3/92

of a Territory or Parliament of a State in or into which the advertisement is broadcast.

information about the whereabouts of, or

information concerning, an identified member of the

BRENNAN J: Mr Solicitor, could I just interrupt you for a

moment. Does section 95T eliminate the requirement

of natural justice in the case of a tribunal's

dealing with a complaint?

MR MASON:	There are provisions which give an obligation to the Broadcasting Tribunal to apply natural justice generally, and of course so would the common law.
Section 25 of the Broadcasting Act - it would
certainly truncate the right of natural justice,
one wonders whether or not to reducing it to a nothing.
MASON CJ:	The tribunal seems to have acted on the footing

that 95T requires them not to have regard to the
right to call upon the other side to put its case

before arriving at a conclusion.

MR MASON:  Yes, and one of the other problems about this

legislation, in the impact in the example that is
given, a party can, in effect, create its own
issues. So a party in one electorate can, by
creating an issue, prohibit any form of

advertisement that touches upon that issue. So, in

a sense, the burden of the legislation can expand
at the will of one of the players who wishes to

prevent certain forms of government or governmental

authorities' advertisements.

Example No (5) fixes upon paragraph (e) of the

definition of "prescribed material" which refers

to:

material containing an express or implicit

reference to -

a member of the legislature of a Territory or of the State. I was looking at the example in 95D.

That would mean, for example, a talking head of the

Premier of New South Wales saying, "The Olympic

Games is a great idea" or "I give my endorsement

for the following appeal for famine victims", would

be prohibited because, presumably, it would contain

an implicit reference to the person who would be

identified whether by the fact that everybody knew

who the person was or simply because his or her

name was shown across the endorsement and that, I

reiterate, will apply whenever there is an election

including a by-election that happens to be within

the broadcast area.	So it can descend entirely
fortuitously.	The very fortuitous nature of that

Television(2) 71 17/3/92

burden affects the difficulty of forward planning which is part of the programming of certain types of advertisements.

Your Honours, turning then to the third basis

upon which we challenge this legislation, it is

because of what we submit are the imposition of

special disabilities upon State governments and

State government agencies, vis-a-vis other players

in the system. Here, the complaint turns upon a

comparison between the rights given by Division 3

to free time, Division 4 to policy launches and 95A

to charitable organizations in contexts where

obviously those persons or bodies may have things

to say which will impact adversely upon the

interests of State governments or State government

agencies.

This particular challenge extends to 95B, C

and D. In each case, the comparison is between the

provision which, in 95B(4), says:

Subject to Divisions 3 and 4, a broadcaster must not ..... broadcast -

for people -

other than a government -

and the blanket prohibition in the preceding
subsection which bans, unconditionally,

broadcasts -

on behalf of a government, or a government

authority, of a State.

We submit that these provisions are invalid

because they single out the States and their

authorities for discriminatory treatment, which

affects their legislative and executive functions

and which impose special disabilities on them which

do not apply to other persons who have an interest

in disseminating "political information", and we

put political information in quotes because of the

broad approach to that notion in this legislation.

In paragraph llA on page 9 we seek to join

issue with some of the Commonwealth submissions,
which are a very curious mixture. Half of the time

the Commonwealth submissions seem to say, "Well the

State government is to be equated with the party

that controls it and therefore, since that party

has obligations put upon it, the government cannot

really complain". The other half of the

Commonwealth submissions takes the opposite

position; they say, "Well a State government is

different from a party; parties need free time, but

Television(2) 72 17/3/92

governments do not". And between this curious

inconsistent tightrope, the Commonwealth

submissions proceed, or we would respectfully

submit, lurch.

We have endeavoured in paragraph llA to

isolate a number of illicit assumptions in the

Commonwealth argument, which propounds the case

that a State government never has an interest of

its own to access to the air waves, to place

advertisements, and that the interests, which it
has, are so similar to those of parties, that it is

appropriate that they be given unconditional

prohibition upon access.

Your Honours, I will not read, unless the

Court wishes, the paragraphs in llA.	I have
available to hand up the material from

Professor Crisp's work, Australian National

Government, and it is the 5th edition, pages 51-57, particularly at page 52. There are some examples

given of instances where, at a referendum under

section 128 of the Constitution, the interests of
the State government diverged from that of the

party of the same complexion in the federal sphere

that was promoting a particular referendum proposal

and, in a sense, that is just a statement of what
happened in history, but it illustrates, in our
respectful submission, a legitimate use of power by

State governments, because, after all, it is not to

be presumed, indeed it is to be presumed otherwise,

that State governments will act in the proper

interests of all members of the State, not just

those who elected them into office.

Your Honours, turning then, if we may, to section 92 of the Constitution and the challenge

based upon that, there is very little we wish to

add to our submissions in Nationwide -

DEANE J:  Mr Solicitor, can I take you back and divert you

for a second?

MR MASON: Please.

DEANE J: Looking at these charts, with their 290 days, am I right that the effect of that on your submission is to ban advertisements of the kind specified

regardless of whether any regulations have been

made? In other words, am I right that 95J misses

out on local government?

MR MASON:  Yes. The 290-day chart includes five

governmental by-elections - State parliamentary

by-elections, but the regulations do not address

them either.

Television(2) 73 17/3/92

DEANE J: That answers my question, that the Act operates

automatically to black out television stations in

Sydney for 290 days in relation to the relevant

things and there is no escape.

MR MASON:  When the Act has been brought into operation, and

that will not occur until there has been a

regulation passed in relation to elections in that

State.

DEANE J: Well, that is what I was asking you about. I

thought that 95J did not provide a let-out in

relation to local government.

MR MASON:  That is right. Your Honour, in the statement of claim - - -

DEANE J: Well, how, for example, if this is right, have the

television stations all been running ads that you

are comfortable travelling on State Rail when that

is always a political issue?

MR MASON:  The definition of prescribed material, if one is

looking at 95D, in a number of respects is confined

to material commenting upon issues in the election

concerned or candidates in that election, but as to

D, E and F, it is not so confined.

DEANE J:  So you would have to find out whether State Rail

was an issue in the.- - -

MR MASON:  - - - particular by-election - yes. But if

privatization of local government services were an

issue in the Blue Mountains, then at least on the

tribunal's approach to the legislation, a

privatization of State government assets

advertisement could not be run concurrently.

DEANE J: Well, if that is so, it is so - not that I am an

expert, but I have not had the impression that this

sort of black-out has been existing for almost the

whole of the year.

MR MASON:  The whole of this year Your Honour is speaking

about?

DEANE J: Yes.

MR MASON:  The legislation has only been in effect since

January of this year, and it has only been brought

into effect State by State upon the making of

regulations that satisfy 95J.

DEANE J: That was what I was directing my question to, and

that is, that it seems 95J has nothing to do with

the blackout resulting from the local government

by-election.

Television(2) 74 17/3/92

MR MASON:  I think the answer is "No" to Your Honour's

statement in that there is no blackout anywhere

applies until it has been triggered off.

DEANE J: But if there is something that covers local

government, I would be grateful to be told at some

stage.

MR MASON:  Yes. Your Honours, when we commenced the

proceedings, as will be found from perusal of the

demurrer book, there was an issue of construction

raised in paragraph 8 of the statement of claim on

page 4 of the demurrer book which raised a question

of construction about section 95J. The argument

was that there was no relevant ban affecting a

State by-election because there was no capacity in

the legislation to introduce regulations for giving
free time over a by-election. That argument was

put before His Honour the Chief Justice in the

interlocutory proceedings in this matter, and in

the judgment at 66 ALJR 214 at 217 and 218,

His Honour rejected that argument and, in effect,

said that -

95J should be read as saying that the Part

does not apply in relation to an election in

respect of which regulations can be made under

section 95H until such regulations are made.

We respectfully accept and adopt that reasoning,

and obviously paragraph 8 goes.

So far as section 92 is concerned, one matter

which was not apparent in our original submissions

we have endeavoured to clarify in 13A, is that we

concede that there is nothing discriminatory in

~his legislation, discriminatory as between

interstate and intrastate intercourse. And if, as

we argued in Nationwide, discrimination is the

essence of section 92 even in its application to

intercourse, then it is conceded that section 92

presents no springboard for any argument on our

part in this case.

Of course, there were alternative arguments

put in Nationwide which we embraced as

alternatives, and it is in that context that we

said, "Well, if the Court adopted those

alternatives, then it would be a question of

determining whether there had been a reasonable and

proportionate regulation of a right of intercourse

in the sense of communication between States."

Paragraph 16 is slightly fuller than the

original version of paragraph 16. We argue and

submit that the public interest, for reasons

already given, requires the dissemination, not the

Television(2) 75 17/3/92

suppression of, information whose broadcasting is

banned. When one gets down to a section 92

"reasonable regulation" analysis, it is relevant,
in our submission, to point to the fact that the

very grant of free shows that the content of the material banned is not in issue. We submit that the Act is unfair in allocating free time in favour

of existing parties which operates to entrench them

and to deter new entrants. It also imposes burdens

on innocent persons because of a perceived need to prevent the corruption of major political parties.

In paragraph 17, we accept of course that the

impact of section 92 is limited to dealing only
with stations who broadcast a signal in the
ordinary course across a State boundary, and we put
that submission in Nationwide. In a sense, it is

because of the limitations of section 92 - and I

say that hopefully not just from a pragmatic point

of view, but because of some of the matters

Your Honour Justice McHugh was putting to my friend

Sir Maurice, that it is appropriate, in our

submission, to look to a broader constitutional
protection.

Broader though it is than section 92, the way we would put our case, I perceive, is narrower than

that put by the television stations.	We are not
expression that is to be found from the	arguing for a general right of freedom of of a freedom of communication with the central
organs of federal government and in relation to
federal electoral and judicial processes.
To develop one of the examples that Sir Maurice gave, it would be inconceivable, one
would think, that a State could prohibit physical
access to a Federal Court. It would be, one can
surmise, perhaps inconceivable that the federal
government could use the postal power to prohibit
postal voting, although that may be a bit closer to
the facts of this present case, but to prohibit, for example, the sending of a petition to
Parliament by exercise of the power to pass laws
with respect to the Australian Capital Territory
would, in our submission, clearly be something that
would be proscribed by an assumption that underlies
the entire notion of a federal government and a
government that has judicial, legislative and
executive organs to which people need have right of access.

What we submit is that this right of access is

clearly designed to allow the proper functioning of

the respective organs; for the courts to do their

work, for Parliament to do their work. For the

Television(2) 76 17/3/92

reasons that we have given in the earlier

submissions, it is part of the proper functioning

of both the executive and the parliamentary organs

of government, these vital organs of government,

that they be open to criticism, to communication,

not just at the time of election but at other times

which this legislation prevents in a very random

but significant way.

Your Honours, in paragraph 18 there is a

reference to a Canadian case. I will not read the passage, but would Your Honours add a reference to page 40 as well in the other judgment of the court.

Chapter 2 of Professor Zines' latest work,

Constitutional Change in the Commonwealth, is a discussion about the entrenchment of individual and

democratic rights. At page 34, he says that:

The very notion of a free election assumes

certain liberties, such as freedom of
expression, of assembly and of association.
Thus provisions concerned with the

establishment and maintenance of democratic

processes appear to some degree to shade into

those which are thought desirable by people

who emphasize not merely democratic

structures, but the liberty of the individual
and the protection of minorities.

Your Honours, turning then to our submissions about acquisition otherwise than on just terms, in

one sense a before and after comparison shows the

impact of the legislation upon the rights of the
licensed broadcaster. Before the Act, the

broadcaster had the right to allocate broadcasting

time as it saw fit and for reward. Perhaps that

should be just qualified by reference to

section 100(3) which I referred to earlier.

What the Act does is not just close down that right, such as would occur with a ban on cigarette

advertising which might perhaps be equated to a

zoning provision which, arguably, would not be an

acquisition of property. It does not close down

the right, it gives something to somebody else, and
that something is certainly conceived of by the

legislation as being a tangible valuable right. It

is given free when previously it had to be bought,

and the Act speaks in terms of an obligation in the

broadcaster to make the unit or units of free time

available for use in making one or more election

broadcasts on behalf of the people to whom it is

granted, and the Act speaks in terms of a

requirement to do so.

Your Honours, the Commonwealth in their

submissions argue that these rights, because they

Television(2) 77 17/3/92

ultimately depend upon discretionary factors for

their enforcement, are not real rights that are

conveyed to the political parties and the other

persons to whom they are given but, in our

submission, that is to confuse the form with the

substance. The rights are enforceable by

prosecution; they are enforceable by application

to take away a licence which can be initiated by

the tribunal or by any member of the public; they
are enforceable, we submit, by reference to the
cases mentioned in paragraph 21 by mandamus or

mandatory injunction at the suit of interested

parties. Clearly one could conceive that damages
would not be an adequate remedy to such persons and

we would submit in point of principle that the mere

fact that rights may depend upon an exercise of

administrative discretion or may, in certain

circumstances, be capable of being withdrawn when

equity decides there have been disqualifying

factors, do not take them outside of the protection

of section Sl(xxxi), and I will not read the

passage from Justice Gummow's judgment in

Smith Kline where there is a discussion in this context.

Your Honours, the principles in paragraph 22,

again I will not burden the Court by reading, but I

would draw attention to paragraph 22(e) which is a

new submission, and to give it some context it is a

submission which goes solely to a ground of attack

on 950(3). Section Sl(xxxi) has been said to be a

code, as it were, in the requirement of just terms

not being capable of evasion by resort to another placitum. In our submission it is also a code in the requirement that any acquisition must be for a

purpose in respect of which the Parliament has

P?wers to make laws.

What then is the purpose of this legislation?

Can it be abstracted, as the Commonwealth may wish

to argue, as saying, "It is for the purpose of

being a supplement to the exercise of a power under

Sl(v), to make laws with respect to broadcasting."

We submit that that cannot be what is envisaged by

section Sl(xxxi).

The reason why we distinguish between 95B

and C, on the one hand, and 95D, on the other, is

that the ban on political advertising in the

elec'tronic media in 95B and C is supportable by

heads other than Sl(v). We would concede that the

Commonwealth Parliament would have power to pass

laws relating to the electoral processes for the

Territory and for the Commonwealth.

But, clearly, there is no such power to pass

laws relating to the electoral processes in State

Television(2) 78 17/3/92

institutions, nor to the participants in those

processes. Here, the avowed object of the

legislation, the purpose of the legislation, is to

stop a form of political corruption through the

high cost of access to the electronic media and the

argument that the political parties will get

themselves into hostage of improper forces by

having to spend so much money upon that access.

That, in its application to State elections,

is not a purpose for which the Parliament has power

to make laws and it is, in our submission, no

answer to say that the head of power under which we

make the law is 5l(v), to which we say that may be

the formal peg upon which you exercise your power

but it does not show the purpose.

Your Honours, may I take you to one authority.

Not the two that are quoted in 22(e). It is

Blakeley v the Commonwealth, (1953) 87 CLR 501, at

518 and 519. In the judgment of the Court, it is

about point 7 on page 518, the words:

The words "any purpose in respect to which the

Parliament has power to make laws" were

equivalent, so it was said, to "any use in

respect to which the Parliament has ;power to

make laws". It may be doubted whether the

substitution of the word "use" for the word

"purpose" makes the meaning any clearer. It

seems to be plain enough that the

Constitution, in using the word "purpose", is speaking of the object for which the land is

needed. The word itself does not refer to any

power or powers defined in the various paragraphs of sections 51 or 52 of the Constitution or elsewhere conferred; it is

referring to the object for which the land is

acquired.

It is that last sentence that is the matter of

principle we would rely upon.

That object, however, must be one falling

within the Commonwealth's power to make laws.

It does not matter, however, from which of the

paragraphs the power to make a law covering

that object is derived.

So, Your Honours, the submission we therefore make

from that springboard is the one in paragraph 29(b)

on page 21 of our outline.

Your Honours, it is possible to look at the

impact of this legislation as an acquisition upon -

Television(2) 79 17/3/92

DEANE J:  Mr Solicitor, I follow the way you put this if you

are saying that what is involved is the political

party being given the free use of the television

stations property, but if you are putting it also

that the restriction is of itself an acquisition of

property; I do not quite follow the argument, I am

sorry.

MR MASON:  No, I perceive what Your Honour is putting to me; I am certainly not saying that. I am saying the

acquisition is the giving of free time, but the

giving of free time is an appurtenant of the whole

legislation and the purpose of the whole

legislation, as distinct from its peg of power, is

the control of political corruption in very broad

terms.

DEANE J: Well, in other words, you would not suggest for

example, that the ban on cigarette advertising,

which does nearly all the things that you spell out

here, apart from giving free use of property to

somebody else, was an acquisition of property.

MR MASON:  Yes. The distinction is that, yes, free time is

not given to somebody else.

Your Honours, if one is trying to focus upon what is acquired, it appears, in our respectful

submission, to be clear on principle, it does not

need to be acquired by the Commonwealth anymore,

but there must be something that is seen to be an

acquisition of property, albeit that property is

given an extended constitutional sense as extending

to possessory rights and other forms of right.
What then is acquired in the grant of free time?

That being, I concede, an essential part of our case. We submit that one can look at it in two

ways: our preferred way is to see it as an

impingement upon the broadcaster's right to use its

plant and equipment as it sees fit; nothing to do

with the licence as such. It is a commandeering of

the property. It is as if the Commonwealth is

saying, "You must let people walk over your land;

you must let people walk over your property and

over the access to the air waves that that property
gives you through the electronic functioning of it
and, of course, the value of that property becomes

all the more because of the exclusivity conferred

by the licensing regime.

Alternatively we submit it curtails the rights

under the licence itself, and the existing rights

are to broadcast subject to all existing valid
conditions. Responding to the comment of

Your Honour Justice Brennan, we would not submit

that the argument we are advancing turns upon

whether or not the Act descends upon an existing

Television(2) 80 17/3/92

licence or a future licence. I certainly concede

that on various alternative arguments, that could

become critical, but the arguments we are

advancing, I believe, apply with equal application

to a licence today and a licence granted tomorrow.

I say today, a licence granted last year, a licence

granted next year.

Your Honours, what the Act does is creates in

favour of a group of persons rights which impinge

upon the licensees right to use and dispose of its

property and its licence as the owner thinks fit, and at the bottom of page 16 reference is made to

two very recent decisions of this Court where that

was referred to as being part of the essence of the

concept of property. We submit that, in effect, a

right of way has been given over the plant and over

the licence, but even if there were no notional

entry, that would not be fatal because there can be

negative easement which is property in the eye of
the law simply because it confers rights on someone
with respect to somebody else's property, even

though those rights do not involve entry upon that

other person's property.

If it be necessary, and this is because of our

alternative way of putting the property, to rely

upon the licence, we submit that a broadcasting

licence is a form of property for the reasons

developed in paragraph 25. It is entirely

distinguishable from the personal right of a right

to trade that is personal and not transmissible

that is dealt with in Smail's case. The fact that

the right conferred is a new species of property

does not mean that there is anything less of an

acquisition, in our submission. Indeed, we would

submit that the fact that property is not involved

at all is not essential, provided there is a

displacement of a possessory right, a right to

exclude and a displacement in favour of somebody

else - an identified group of persons, then there

has been an effective acquisition.

Your Honours, section 129 of the Broadcasting

Act has been relied upon to say - well, it is not

entirely clear to say what. We perceive it is to

say that there is a voluntary giving up and that

there cannot be an acquisition if there is an

agreement to give over something, acquisitions

dealing only with involuntary takings. It may be,

alternatively, the Commonwealth would wish to argue

that 129 somehow or other means that there is no

affecting of property because you never had an

effective right to exclude that which is now taken.

But the argument, as we perceive it, turns

upon 129, that the:

Television(2) 81 17/3/92

licence ..... shall be subject to the provisions

of this Act ..... so far as they are applicable

to the licence -

and the argument that "this Act" means "this Act as

amended from time to time".

Your Honours, we submit that that does not in

any sense turn that which is a taking effected by

the 1991 Act into a voluntary handing over and

therefore outside of Sl(xxxi).

DEANE J:  Does this mean, Mr Solicitor, that, on your

approach, once a television corporation obtains a

licence, it cannot be required to do anything in

the public interest as a quid pro quo after the

licence has been obtained? What if the

Commonwealth passed legislation requiring it to

broadcast information from the bushfire authorities

in times of emergency as a matter of principle.

Would your argument not be the same?

MR MASON:  Yes, and it is 104 of the Act at the moment which

has a provision - of course, the presence of 104 may remove Your Honour's question of any factual

application, because that right is reserved already

to require people to broadcast matters of national

interest. But assuming 104 were not in the

legislation - - -

DEANE J: Let us all get away from something in the national

interest. Say it required it to make time

available one day a month to some local

organization in the public interest.

MR MASON:  And we are assuming no quid pro quo that is

equivalent in value to that which is lost.

DEANE J: That Parliament passed legislation saying there

shall be affixed to the licence of every television

organization a condition requiring it to do the

following things in the public interest as a quid

pro quo for its monopoly.

MR MASON:  The particular things may not amount to an

acquisition of property. They may be of such

generality in their affectation that they are

equivalent to a zoning law which just downgrades

the property generally in favour of the public

generally, and therefore has not been said to be a

taking. This of course is one of the issues that

was debated in the Tasmanian Dam case. If the

issue was a right in favour of a specific group, to

broadcast religious broadcasts or charitable

broadcasts - - -

Television(2) 82 17/3/92

DEANE J: Say it was in favour of the Television Control

Board requiring each television station to

advertise that complaints about its service could

be made to the Television Control Board.

MR MASON:  There would probably be no difficulty about that,

for two reasons. It would not be seen to be taking

anything that is there.

DEANE J: Let me push the example requiring it to make free

time for the chairman of the Television Control

Board to go on as what Sir Maurice calls "a talking

head", and let all viewers know that they were

entitled to complain about television companies to

his board.

MR MASON:  It would be sliding to my second argument which

may be a firmer foundation to answer Your Honour's

second example, or deeper example. The real

difference may be that just terms would not require

payment for that, because there was no pre-existing

regime whereby that sort of thing was done for

charge.

DEANE J: What I was really wondering about is it may be

there are problems the way it is done here, I do

not know, but do you not have to meet the argument

that if a television company is given a monopoly

under a licence, it is simply not accurate to talk

about the affixing of a further condition to that licence as being an acquisition of property, even

though compliance with that condition requires the

television company to make its assets available for

the use of the other or another?

MR MASON:  With respect, no. A Crown grant is a form of

monopoly and yet the retaking of a Crown grant

would, presumably, attract Sl(xxxi). It is a

question of how you define the rights. But,

secondly, it may be not every condition is a bad

condition - - -

DEANE J:  My question was directed to it being a licence

which, if the monopolist wants to give up his

monopoly he can simply terminate at any time, as I

understand.

MR MASON:  With respect, you cannot define away the

constitutional issue by a label upon the right of
property. If one is dealing with a valuable right

of property, albeit that it derives its function

initially front grant and initially from statute,

it is, in our submission, capable of falling within

the protection of Sl(xxxi).

McHUGH J:  How do you distinguish between acquisition and

regulations? Supposing you have a regulation that

Television(2) 83 17/3/92

requires you to have 30 per cent of your time

devoted to Australian products or an hour a day to

programmes prepared by Aboriginals?

MR MASON:  A mere regulation would not involve the element

of vesting in the Commonwealth or the

Commonwealth's nominee of a right in "property".

There has to be a taking of property. In one

sense, is that looking at the right before the

taking or the right after the taking. Perhaps it

does not matter but there has to be vested in

someone something that amounts to an abstraction

from the bundle of rights that the acquiree

previously had, in my submission. Mere regulation,

like a zoning provision or like the matter

discussed in the Tasmanian Dam case, as it were,

descends upon the land, affects its value but does

not vest a right in favour of a defined person or

group of persons.

BRENNAN J: Mr Solicitor, two questions: can one talking

head sell the free time to another talking head?

And the second: what if the licence, when granted,

provided for free time, as a condition of the grant

of the licence?

MR MASON:  Are you talking, Your Honour, of the talking

heads in this particular legislation?

BRENNAN J: Yes.

MR MASON:  The only thought I have is that there are certain

choses in action, like pensions which, because of

public policy, are construed to be non-assignable.

BRENNAN J: Then are they property?

MR MASON:  The talking head is just a control on the content of the right that is conferred. The right is

conferred upon persons, be they political parties

or individuals, who qualify, and then they must do

it in a particular way.

BRENNAN J:	Can the person sell the free time?
MR MASON:	I would submit, no, because the scheme of the

legislation makes it plain that you are given that

free time because of a particular status which

flows from your being part of the big 90 per cent

at the last election, or the special group of

people who are given rights. If you sell it,

certainly to a third party, I would submit that the

reason you were given it has been destroyed and,

therefore, the right has gone with it and its

capacity to be enforced has gone with it.

Television(2) 84 17/3/92

BRENNAN J:  So it is a disposition of property which is no

longer property?

MR MASON:  A chose in action can be property according to

Mr Justice Starke in Dalziel's case, and one can

have a right of property which is recognized in

equity and not in law, so the mere fact that it is

defeasible, in certain circumstances, does not mean

that it is not property for the purpose of

Sl(xxxi). I have forgotten what Your Honour's

second question was now.

BRENNAN J: What if the licence is granted upon condition of

granting free time?

MR MASON:  We would submit, as a general proposition, that

one cannot confer a benefit subject to an

unconstitutional condition. To take the example we

give in the submissions, you cannot say you can

have a pension provided you promise not to go to

church. Now, the question then would come, if the

condition to which the licence and Your Honour's
example were, "Does one see that condition as

really being, I am withholding from the rights

conferred, X. If that is how you characterize it,

no problem". But if you are saying, "I am giving

you a licence but reserving to myself the right by

later legislation to take it away for free", that

is an attempt to deem yourself within power, and we
gave Your Honours the reference to this Court's

recent decision in Mutual Pools, paragraph 27(a) of the submissions, where there is a discussion of the principles about the use of deeming provisions in

an invalid attempt to escape a constitutional

mandate.

So, if the licence said, "You have got this

.licence" - let us assume that 129 were more

explicit and it said, "Every licence is given on

the condition that if the Commonwealth wants to

take it away for nothing without cause, the

Commonwealth may", then that, in our submission,

would be an invalid acquisition. If it was given

as it is, the Commonwealth can take it away for cause, the taking away for cause is just not an acquisition within Sl(xxxi) at all, so you are not

within the problem area.

DEANE J: Well, that would mean, would it not, that the

Commonwealth could not say, "and you will pay such

licence fee·as we may fix from time to time"?

MR MASON:  And then put up the fee?

DEANE J: Yes.

Television(2)	85	17/3/92
MR MASON:	Well, of course, taking of money is property.	I

have to concede that.

DEANE J: Well, that was a recent argument, but assume it is

just for the sake of the question.

MR MASON:  I feel I would have to concede that if that were

in the terms of the Act at the time of the grant,

the licensee would have consented, even in a sort

of contractual sense, to be paying the higher fee

when demanded, and therefore the taking of the

higher fee would be within the realm of a taking

that is not an acquisition.

May I go back to Your Honour Justice Deane's

example to give another response to it - this is of

the situation where there is a legislation that

says, "Once a month you shall make available five

minutes of time as allocated by some control

board". There would not necessarily have been any

market for that sort of right having been conferred

before, and the taking of that right, even if

unheralded by the legislation, may be within that

category of situations where just terms does not

necessarily mean compensation. What makes this Act

different is that there clearly is a market for
advertising services, and the taking that is

effected here clearly impacts directly upon that

market because it says, "It will be business as

before, only you do not have to pay for your ads",

so one is still dealing with that which would be an

advertisement and that which would normally have

been regarded as something one paid for.

Your Honour, in Professor Howard's work on

constitutional law at page 451 I was given a

reference to a passage in Nelungaloo,

(1948) 75 CLR 495 at 569, in the judgment of

Mr Justice Dixon, where Professor Howard states the

proposition that -

A number of pronouncements settling the

general line of approach -

to just terms -

have been made. They centre on the concept of

fair dealing as understood in an Australian

context.

And he quotes from Nelungaloo at 600:

The standard of justice postulated by the expression "just terms" is one of fair dealing

between the Australian nation and an

Australian State or individual in relation to

Television(2) 86 17/3/92

the acquisition of property for a purpose

within the national legislative competence.

And then at page 569:

When the question is one of fairness in any

community the standard must depend upon the

life and experience of that community, rather

than upon the changing fortunes of other

countries and the exigencies which beset them.

Unlike "compensation" which connotes full

money equivalence, "just terms" are concerned

with fairness.

From those statements, I seek to get the following

two relevant propositions. The first is that it is

not a definite answer to say, "But in other

countries free time is given". The fact is that in the Australian experience advertising time has been

paid for, and what is just terms there with their

standards of government advertising, and often

these ads are given on government television

stations, may not be necessarily applicable in

Australia.

And the second support I seek to get from

those passages is to answer Your Honour

Justice Deane in the example you gave me. It may

not be unfair to say, "Well that is one of the

additional burdens that you might take as part of

the rub of the green from the monopoly you have

been given" .

Your Honours, in paragraph 27 we have

endeavoured to meet various arguments based on

section 129, both from a constructional point of

view and from a point of view of principle.	We
submit that it is just reading too much into

section 129 to see it as, in effect, a contractual

promise to submit to whatever the Commonwealth

dishes out by subsequent legislation and it just

our submission, the passing of the 1991 Act cannot	does not bear that construction. In any event, in	be seen as an acceptance of a promissory offer and
if that is so, then the 1991 Act must stand or fall
upon whether or not it is a law that
satisfies Sl(xxxi), if applicable.
We also submit that the expression "the provisions of this Act", which is all that
section 129 subjects the licence to, would be read
down as meaning the Act is validly amended from
time to time, and although one may say we are being
circular, we submit that so is the contrary
argument and the proper way would be to read the Act down so as to not permit an excess of power as
a matter of construction. It is inconceivable, we

Television(2) 87 17/3/92

would submit, that Parliament would have intended

to reserve in section 129 a power later to do that

which was an unlawful acquisition.

The reference to those provisions in section 129 is the provision "so far as applicable"

and we submit that an invalid would, as a matter of

interpretation, be inapplicable. Your Honours, in

paragraph 28 we have endeavoured, although in a

very tentative way because it seemed to us not to

be strictly relevant to this case, to look at the

application of the Act with reference to new

applicants for commercial licences. We say

"irrelevant" because, if the Act falls in its

impact upon the status quo, no amount of invocation

of 15A, in our submission, would save it. It could

not have been intended that this Act, which is said

to come into effect immediately upon the passing of

regulations, was really designed just to hang

around until some licensee got a new right or some

new licence was granted.

In any event, a renewal licence would, in our

submission, be regarded as a continuation of the

rights of the existing licence, because of the

reasonable expectation that a renewal would occur

and therefore, in substance, there would be a

burdening upon the rights of additional licensees.

In paragraph 29A, we have perhaps anticipated

Commonwealth submission - well not "perhaps"; we

have endeavoured to do so. The Commonwealth

argues, "Well, sure it is free time, but we have

given you something in return." One wonders

whether that was intended to be seen as a quid pro

quo with section Sl(xxxi) in mind, but our

submission is that the right, if one can call it

that, conferred by 95Q(7), is no substitute for the

value of the lost revenue, for the reasons that are

there set out.

Your Honours, I perceive that is all that I

would wish to say. Might I, if there is anything

that I would wish to put by additional submission,

be permitted to do so in the morning? I certainly

do not - I perceive I have finished my submissions

and there may be something Mr Katz is anxious for

me to put to the Court but I would rather I did not

hold up the Court by doing it now.

MASON CJ: Very well, Mr Solicitor. Mr Solicitor for the

Commonwealth.

MR GRIFFITH: If the Court pleases. In section 95G, the

definition paragraph, (a) and (b) of a "talking

head" is that it is:

Television(2) 88 17/3/92

(a) the broadcast ..... that consists of words spoken by a single speaker (without dramatic

enactment or impersonation) accompanied ..... by

a transmitted image that consists of the head

and shoulders of the speaker; and

(b) the broadcast does not include any other image, or includes a single additional static background image only -

By that definition, it would seem to me, if the

Court pleases, that I am a talking head, therefore

my submissions are limited to two minutes, if we

equate it to television, which would seem to be the

number of minutes to 4.15.

If I may mention to the Court that we have

delivered to Your Honours' tipstaves four volumes

of materials. I do not wish to set them to the

Court for homework but if I could indicate the

nature of those materials which I will refer to

briefly in the course of my address tomorrow

morning.

The first volume I would refer to is a volume headed Index of Commonwealth's Materials, Part One,

Australian. Does the Court have that volume?

MASON CJ: Yes.

MR GRIFFITH:  We there index the materials which includes

extracts from the 1989 Senate inquiry from the

second reading speech, item 3. Appendix 5 is an

extract from a separate volume which Your Honours

also have, being the publication in full of the

November 1991 Parliamentary Report on Political

Broadcasts and Political Disclosures Bill.

Appendix 5 is attached to this document as well as

being included as volume four.

I refer to that particularly because that

lists in summary form the legislative provisions of

foreign countries, and Your Honours may be assisted

by that. Also there is a table which appears in

the Senate report which appears at page 4 of

volume one which indicates yes or no in respect of

whether or not there is paid political advertising

in other listed countries and whether or not free

time is given to political parties. Then follow

other materials which are self-evident in their

description.

Part two, headed "International", has firstly

extracts of the relevant articles of various

declarations in international covenants and
conventions in the Canadian Charter of Rights, then

extracts in respect of two determinations of the

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European Commission of Human Rights, European Court

of Human Rights and extracts from Blackstone, Hart,

Dicey, Birch, Sieghart and finally communiques from the Canadian Royal Commission on Electoral Reform and they we will refer to briefly tomorrow.

The next volume of materials is a document

headed:

Convention debates: discussion of guarantees

of individual rights and control of electoral
process.

There the relevant document is the summary which comprises of the first five pages of this volume. Attached are the extracts of the various parts of the debates which attach to substantiate the

summary made in those five pages, and the last

volume, headed:

Commonwealth comments on broadcasters'

submissions Part 5 - Freedom of

Communication -

is an attempt to deal compendiously with the

various citations from authors and sometimes from

other authorities and decisions which run as a

thread through various paragraphs of the

broadcasters' written submissions to the Court and

particularly there we refer to the first 11 pages

of that document which is a, in effect, written

rebuttal to the tenor and the conclusions of the
material as it was presented in the plaintiffs

broadcasters' materials.

We would refer, particularly, on pages 5 and 6

to extracts from Harrison Moore as, of course, my

learned friend, Sir Maurice, did take the Court to

one part of Harrison Moore, and we particularly

refer to the part where emphases are added

indicating that that author did accept that the

issue of what are the appropriate repositories of

the individual guarantees of individual rights are in the Commonwealth Parliament and the parliaments of the States.

BRENNAN J: Are there indices for these last two volumes?

MR GRIFFITH:  Your Honour, the last two volumes do not have

indices. As is indicated in the last page in the

Conventions Summary, the pages are set out in order
of conventions and, Your Honour, the Court will
find Melbourne 1898, page 688. If you then turn to
the relevant appendices, the page will be in order

of pagination.

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So far as the last volume referred to is

concerned, Your Honour, there is a list in the

left-hand margin of the summary to the relevant

appendix where there is a full extract of the work

referred to and sometimes, Your Honour, the extract

errs on the side of length because the point is

made there has been selective quotation, and that

is attempted to be covered not by selective

requotation, but by having it in relevant context.

We hope, with that marginal note, that is

sufficient index for the Court to find that

material.

AT 4.20 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 18 MARCH 1992

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