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

[1992] HCATrans 29

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S5 of 1992

B e t w e e n -

AUSTRALIAN CAPITAL TELEVISION

PTY LIMITED

(A.C.N. 008 408 706)

First Plaintiff

PRIME TELEVISION (SOUTHERN)

PTY LIMITED

(A.C.N. 003 368 938)

Second Plaintiff

TWT LIMITED

(A.C.N. 000 162 854)

Third Plaintiff

TASMANIAN TELEVISION LIMITED

(A.C.N. 009 480 835)

Fourth Plaintiff

SOUTHERN CROSS TELEVISION

(TNT 9) PTY LIMITED

(A.C.N. 009 483 587)

Fifth Plaintiff

PRIME TELEVISION (VICTORIA)

PTY LIMITED

(A.C.N. 000 390 232)

Sixth Plaintiff

QUEENSLAND TELEVISION LIMITED

(A.C.N. 009 674 373)

Seventh Plaintiff

TCN CHANNEL NINE PTY LIMITED

(A.C.N. 001 549 560)

Eighth Plaintiff

and

Television 1 14/1/92

THE COMMONWEALTH OF AUSTRALIA

Defendant

Application for injunction

"

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

Application for injunction and

summons for directions

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 14 JANUARY 1992, AT 10.06 AM

Copyright in the High Court of Australia

Television 14/1/92

SIR M. BYERS, OC: If Your Honour pleases, in the first

matter I appear with my learned friend,

MRS. GAGELER, for the plaintiffs. (instructed by

Allen Allen & Hemsley)

MR D.J. ROSE, OC, Acting Solicitor-General for the

Commonwealth of Australia: If Your Honour pleases,

I appear with my learned friend, MR J. HILTON, for

the defendant in the first matter. (instructed by

the Australian Government Solicitor)

MR K. MASON, OC, Solicitor-General for New South Wales: In

the second matter, I appear with my learned friend,

MR T. ANDERSON, for the plaintiff. (instructed by

the Crown Solicitor for New South Wales)

We will, in addition to seeking directions, be

seeking leave to file a notice of motion for

injunctive relief.

HIS HONOUR: Against whom?

MR MASON:  The defendants. It would be a matter which we

would seek to have dealt with at the same time as

the application in the other proceedings. So far

as the other proceedings are concerned, we support

the application of the plaintiff and we would have

nothing to add. The separate point which the

plaintiff, in our proceedings, will seek to make is

the invalidity of the Act with respect to

by-elections.

HIS HONOUR: Invalidity of the Act?

MR MASON:	As a matter of statutory construction. Inapplicability of the Act to by-elections as a
matter of statutory construction.

HIS HONOUR:  I see. action? Have they had notice of your - - - Now, what about the defendants in the

MR MASON:  They were given notice yesterday of the intention to move for that relief.

HIS HONOUR:  Yes, I see. And, Mr Rose, you again appear for

the defendant Commonwealth?

MR D.J. ROSE: For the first defendant, if Your Honour

pleases.	(instructed by the Australian Government
Solicitor)

MRS. DALEY:  May it please the Court, I appear for the

second defendant, the Broadcasting Tribunal. (of

the Australian Government Solicitor)

If I might indicate, Your Honour, the Tribunal

would propose to submit to any orders of the Court

Television 3 14/1/91

save as to costs in those proceedings and would ask

to be further excused from any need to attend here.

HIS HONOUR:	Yes, your further attendance may be dispensed with but I should ask you before you leave, do you
have any objection to an application on short
notice for interlocutory relief?
MR DALEY:	I have no instructions to make that objection,

Your Honour.

HIS HONOUR:  No instructions to make any objection?

MR DALEY: That is so, Your Honour.

HIS HONOUR:  Can I ask you, Mr Rose, what your attitude is

to that application?

MR ROSE:	We have no objection, if Your Honour pleases.
HIS HONOUR:	Thank you. Yes, Sir Maurice.

SIR MAURICE: If Your Honour pleases. Each of the

plaintiffs holds a licence which is subject to a

service area under the Broadcasting Act and which

enables it under that Act to broadcast and to

charge for advertisements. That right is sought to

be taken away, at least in a particular respect, by

the Act in question, that is the Political

Broadcasts and Political Disclosures Act.

I do not know whether Your Honour has had the

opportunity to read the Act, but I have here an
outline of what I have called "the Act", it is the

Political Broadcasts and Political Disclosures Act.

HIS HONOUR:  Yes, I have glanced at the Act, Sir Maurice,

that is all I have done. It is not the kind of

statute that one can take in at first glance.

SIR MAURICE:  No, Your Honour. It seems to be drawn upon

the basis that it will yield step by step, if

necessary. I imagine for reading down

considerations it might - - -

HIS HONOUR: Yield to what?

SIR MAURICE: Well, an order of the Court, I suppose,

Your Honour. But could I start off, Your Honour - if Your Honour were to go to our paragraph 1, which

endeavours to summarize the effect of section 95B

which if Your Honour has the pamphlet copy of the

Act is at page 7.

HIS HONOUR:  I have a photostat copy that presumably was

taken from something that was in an early stage of

Television 4 SIR M. BYERS, QC 14/1/91

printing because it has "No 203" written in in

handwriting before "of 1991".

SIR MAURICE:  Yes, Your Honour. And does Your Honour have

on the top "LM" left-hand side, "the Clerk of the

House of Representatives"?

HIS HONOUR:  No.

SIR MAURICE:  Every copy we have has that. Possibly, I

could just indicate. Perhaps if I can hand to

Your Honour - my learned friend has handed me a

copy of an unmarked one, but perhaps we need

something to keep it together.

I think I had mentioned to Your Honour that

each of the plaintiffs holds a licence under the

Act.

HIS HONOUR:	Yes, you have.
SIR MAURICE:	Could I hand up to Your Honour, only for the

purpose of illustration - this matter appears

elsewhere - maps of those service areas. When I

say the matter appears elsewhere, the service area

of each of the plaintiffs is exhibited to the

affidavit and annexed to the statement of claim.

HIS HONOUR:	You mean, the verbal description.
SIR MAURICE:	The verbal description, Your Honour.
HIS HONOUR:	Yes.

SIR MAURICE:  Perhaps I can hand it up, Your Honour. The

only point of it, I suppose, Your Honour, is to

indicate that if Your Honour looks to the service

area of TCN Channel Nine, Your Honour will see that

it embraces The Entrance, and there are two areas

which embrace two States - more than one State -

they come next, Your Honour, and the remaining area

is the Australian Capital Territory. But if I

could just hand those up. All they do is

illustrate cartographically the service area of the

various - - -

HIS HONOUR:	Do you want these made an exhibit?
SIR MAURICE:	Yes, may I, Your Honour?

HIS HONOUR:  Yes. They shall be exhibit A, and I shall

describe them as maps of the service areas of the

plaintiffs.

SIR MAURICE: If Your Honour pleases.

Television 5 SIR M. BYERS, QC 14/1/91

EXHIBIT:  Exhibit A ..... Maps of service areas of

plaintiffs.

SIR MAURICE:  Your Honour, can I now go back to the outline

of the Act, if that would be suitable?

HIS HONOUR:  Yes.

SIR MAURICE: Section 95B, Your Honour, prevents a radio

broadcaster and television broadcaster - that is so

because broadcaster is defined in section S(b) of

the Act at page 3, Your Honour, as including "a

licensee", so, therefore, it:

means the Corporation, the Service or a

licensee -

so that means everyone holding a licence under the

Broadcasting and Television Act. So that is radio broadcasters and television broadcasters.

We have mentioned that in the first paragraph.

It says the effect of sections 95B, 95C and 95D

upon broadcasting by radio and television is as

follows. Your Honours, then we go to 95B, and we

say that its operation is that the broadcaster may not broadcast it during an election period, again, a period that is defined, anything except exempt

matter for the Commonwealth Government or for an

authority of the Commonwealth Government. So that

is a total ban, as it were, except for exempt

matters and I will take Your Honour to that in a
moment.

Then, for the Territory governments or authorities, no political advertisement for any

territory government or authority - and that is in

95B(6), which defines "political advertisements".

HIS HONOUR: Well, (2), (3) and (4) are the same, are they

not?

SIR MAURICE: Throughout.

HIS HONOUR: Subject to, in the case of (4), free time. In

other words, there must be an exception from the

total prohib~tion in order to enable the

television/radio broadcasters fulfilling the

obligation which the Act seeks to impose upon them

in terms of providing free time for political

broadcasts.

SIR MAURICE: Yes, Your Honour, and presumably, of course,

when they use the words "subject to" they mean

those persons who are entitled to free time, of

course. I say that because obviously it could not

Television 6 SIR M. BYERS, QC 14/1/91

refer to the television station itself to which

section 95B(4)(b) refers.

Your Honour sees 95B(4) refers to - if

Your Honour goes to the text:

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

relation to an election or a referendum,

broadcast a political advertisement:

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

government or government authority; or

(b) on his or her own behalf.

So that would seem to mean that it extends,

naturally enough, to unpaid advertisement.

HIS HONOUR:	Yes.
SIR MAURICE:	Now, then, Your Honour, "political

advertisement" - if Your Honour has the text of the

Act and Your Honour goes down to the bottom of

page 7, Your Honour will see that it starts off by

saying that:

an election to the Parliament of the

Commonwealth.

'political advertisement' means an

advertisement that contains political matter;

'political matter' means:

(a) matter intended or likely to affect voting

in the election or referendum concerned; or

(b) matter containing prescribed material;

but does not include except matter;

'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 .....

(d) the government, the opposition, or a

previous government or opposition, of the

Commonwealth;

Television 7 SIR M. BYERS, QC 14/1/91

(e) a member of the Parliament of the

Commonwealth;

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

of a political party.

So that really covers the field, the sort of matters that an election is likely to raise.

If Your Honour goes back to section 5 to

look at - - -

HIS HONOUR:  (a) of 'political matter' might extend to

anything at all.

SIR MAURICE:  Yes. It could be anything. When it says

"likely" or "intended", one is not quite - possibly

you would look in some sort of objective way to

what is intended. I do not know, Your Honour.

But, however, whether it is likely to would pose

some interesting problems. But if Your Honour then

goes to "except matter" to see what may be uttered

by the Commonwealth. Your Honour will find it at

page 3 of the pamphlet copy. It says:

matter directly relating to warnings of

impending natural disasters or military or

civil disorders -

so it has got to be directly relating to that -

matter relating to measures ..... taken to deal
with such disasters or disorders ..... 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 -

concerned. Then, Your Honour, advertisements are

allowed but they must not - advertisements by

governments authorities are allowed in a limited

class but they must not contain political
reference, and "political reference" is in turn

defined as meaning, if Your Honour turns over to

page 5:

an express or implicit reference to, or

comment on, any of the following:

(a) an election to the Parliament -

of any of the bodies concerned:	Commonwealth,
State, Territory.

Television SIR M. BYERS, QC 14/1/92

(b)	the government or the opposition .....
(c)	a member of the Parliament .....
(d)	a political party .....
(e)	a candidate or group of candidates .....
(f)	an issue submitted -

so that again also covers - so you cannot, as it

were, under cover of an advertisement, mention the

election.

So, if one is thinking about the Commonwealth

election, Your Honour, what that section does is to

prevent the Commonwealth from making any comment on

either the referendum or the election during the

election period, or a State authority or

government, or any other person, including other

radio stations, of course, throughout Australia.

One would naturally anticipate that that is what is

in mind, but paragraph (4) would relate to all

radio and television stations broadcasting

throughout Australia.

Now, the election period is defined,

Your Honour, in section 5, page 3, as meaning:

(a) in relation to an election to the

Legislative Council of the State of Tasmania, or an ordinary election to the Legislative

Assembly for the Australian Capital

Territory ..... 33 days -

prior to the day for the election and ending at the

close of the poll.

(b) in relation to any other election to a

Parliament - the period -

between:	(i) the day on which the proposed polling
day for the election is publicly
announced; or

writs issued, and the close of the poll. Then local

government has a similar sort of notion -

referendum, a similar sort of notion - that is for

the referendum held without an election, and other

referendum, 33 days.	So that is the blanket, if
Your Honour pleases.

So we would submit that if you look to that,

then subject to 95A and the free time provisions,

there is a total ban on communication by

candidates, or any commentator.

Television 9 SIR M. BYERS, QC 14/1/92

Could I take Your Honour now to 95A, because

it really is the only exception or qualification of

that. At the moment it is unnecessary to do more

than refer to 95A(l), Your Honour, and it says

that:

Nothing in this Part prevents a broadcaster -

so that means a radio or television -

an item of news or current affairs, or a

comment on any such item.

Now, presumably they mean by that, Your Honour, a

comment on any such item of news or, presumably, a
comment on any item of current affairs, although it

is not very clear. That would be on the basis that

"item" refers both to news and current affairs, but

that is perhaps dubious on a talkback radio

programme. Then, visually handicapped people are

provided for in (2); a charitable organization in

(3), which can promote its object; and a public

health broadcast, which must not refer, if Your

Honour looks to the definition of "public health

matter":

directly or indirectly -

to the promotion or criticism of a particular

health system or support or oppose a candidate.	So
I am not quite sure what that would involve, but
one would imagine that it would involve statements

like "there is an outbreak of cholera" or whatever,

but apart from that it would not involve any

intrusion into electoral matter. Nor could it

involve comments either in support of or in

opposition to things like Medicare or the public

hospital system or anything of that sort.	So that
is all covered out.	So all that one has is
something with is, in truth, an item of news.	I

mean, in reality it is an item of news - or current

affairs, and that item of news may, of course,

refer to the election and, no doubt, to the

candidates and to speeches, but that is the extent

of it.

Then, Your Honour, paragraph 2 attempts to

summarize 95C, which is directed to Territories,
and it repeats this scheme, Your Honour; so far as

the Commonwealth Government is concerned you cannot

broadcast anything except exempt matter:

for or on behalf of the government, or a

government authority, of that Territory.

I am sorry, I misled Your Honour when I said

"Commonwealth Government"; it is:

Television 10 SIR M. BYERS, QC 14/1/92

for or on behalf of the government, or a

government authority, of that Territory.

There is no -

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

another Territory.

No political advertisement for the Commonwealth

Government or any Commonwealth authority; no political advertisements for any State government

or State authority; and no political advertisement

from anyone else; again, subject to the free time

provision.

And, Your Honour, as to State parliamentary

and local government elections, you have a similar

scheme:  no political advertisement for the

Commonwealth, no political advertisement for any

Territory, no political advertisements for the

State government or authority, no political

advertisements for any other person and, in the

case of a State by-election - well, I put that in

because something may turn on it, Your Honour.	It
does not bulk large in the submissions we would
wish to make but I think my learned friend, the
Solicitor, may wish to - that is in 95D(S), and
(S)(b) would be the appropriate provision.	What it

says is that if your area includes the electorate,

somehow or other you have got to block out that

area. Your Honour sees (S)(b):

Where the election concerned is a by-election, this section is taken to apply only to

broadcasting -

so far as the plaintiffs were concerned -

in the case of a broadcast made as part of a

broadcasting service with a service area - to

the area in which the relevant electoral

district, or any part of it overlaps with the

service area.

What I take the word "overlap" to mean,

Your Honour, is "part of it". So it seems that if

it is in the middle, as it is, I think, in

Channel Nine, you would somehow or other have to

block it out. Your Honour sees The Entrance,

Gosford, Woy Woy; you would have to block it out,

somehow. It is quite impossible.

HIS HONOUR: Well, I suppose it means you do not broadcast

it at all.

Television 11 SIR M. BYERS, QC 14/1/92

SIR MAURICE:  That is right, Your Honour. So it is a total

ban. It is just theoretical. Your Honour, we have

then made a comment about the definition to

paragraph 4 on page 2, which we say embraces

matters intended or likely to affect voting and it involves reference to elections, persons involved, or issues; and then we say a wide operation of the

word "advertisements" was intended and that is

supported by the explanatory memorandum which says
so - not that that really helps one a great deal,

Your Honour, but the explanatory memorandum in the

House of Representatives on page 5, paragraph 6,

says - I think my learned friend the Acting

Solicitor for the Commonwealth has given notice of

an intention to resort to this. I do not know

whether it is necessary for Your Honour to read it,

but it says, page 5:

The expression "political advertisement"

occurs throughout the remaining ban provisions

in the new sections 95B, 95C and 95D. While

the Bill defines "political advertisement", it

does not define the concept of "advertisement"

itself. "Advertisement" is intended to be

given the widest possible interpretation,

consistent with what is ordinarily understood

to be an advertisement.

It is intended that "advertisement" will not

include for example bona fide reports - I have said "in truth" -

bona fide reports

HIS HONOUR:	You said?
SIR MAURICE:	I said, when I was referring to section 95A,

that an item of news had to be in truth an item of

news. In other words, one could not, by reference

to 95A, broadcast a political advertisement

disguised as an item of news, because that would

then infringe the other section. So that the ban

is intended, in our respectful submission, only to

enable an item of news to be broadcast, which of

course could include matter which is not intended

to affect the vote or any of the - presumably it

must be able to refer to the election, otherwise

95A is meaningless.	It may be that 95A is
meaningless, but - - -

HIS HONOUR:  But why is 95A meaningless? I do not

understand that. Admittedly there may be a

complication arising from the inter-relationship
between the ban on political advertisements and the
saving provision in 95A(l), but why does not the

saving provision in 95A(l) have paramountcy?

Television 12 SIR M. BYERS, QC 14/1/92

SIR MAURICE:  I think I overstated it. I am not suggesting

it does not. 95A(l) either operates as a sort of

proviso, or you read it in conjunction with the

other provisions.

HIS HONOUR: This is a favourite Commonwealth drafting

technique, is it not? You have provisions that are expressed in opposition, but one of them is given a

paramountcy.

SIR MAURICE:  Yes. It is a comment really about the

interpretation to be given to the other sections,

because they are saying nothing in those sections

prevents it. Really one is saying it is not an

entitlement, it is a statement about what was

intended by the positive provisions, by 95B, C, D and E. In that sense, it is a sort of proviso or

qualification to it.	I am not demurring to what
Your Honour says.	To give it any operation, one

would have to say you are entitled to refer to

election as an item of news.

HIS HONOUR:  Yes. I do not see what the ministerial

statement conveying that advertisement is intended

to have its widest significance consistent with the

meaning of advertisement does to, in any way, limit

the saving provision in 95A(l).

SIR MAURICE:  I am not suggesting it does. I only mentioned

that, Your Honour, because of the meaning to be

given to the word "advertisement". In other words,

it is not limited to paid matter.

HIS HONOUR:	No.
SIR MAURICE:	I suppose really I need say no more than that.

That is all I intended to convey. I have said what

95A does, and then 95E, Your Honour, is a provision

which operates to prohibit a broadcaster, we say,

calculated to begin three months from the expiry	governments and authorities matter, for a period from broadcasting Commonwealth and Territory
date of the parliament or territorial legislature and ceasing at the beginning of the election period.
Now that, we would understand, is its meaning, because it says:

If, when a prescribed day in relation to the

Parliament of the Commonwealth occurs, it does not do so during the election period in

relation to an election to the Parliament, a

broadcaster -

Now, I presume the "it" refers to a prescribed day,

Your Honour, but however, that is obviously what it

Television 13 SIR M. BYERS, QC 14/1/92

is intended to do. So it carries it back to say

that operates for a further period of three months

to the commencement of the operation of 95B, 95C

and 95D, so far as the Commonwealth and State are

concerned and so far as Territories are concerned,

in particular in relation to (2). Now, they define

"day" as meaning a date three months before the

expiry date of the House of Representatives, but I

do not think I need worry Your Honour with that

unduly.

If Your Honour goes to the free time - perhaps

I should take Your Honour to 95Q first, which is at

page 14. We have endeavoured to summarize that in

our paragraph 9. It says:

where one or more units of free time are

allocated to a broadcaster under section 95P -

this involves the Tribunal; the detail perhaps does

not matter -

the broadcaster must make the unit or units

available 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 to whom the time is

granted.

(2) Subject to this section, the broadcaster

must use the units in accordance with the

regulations and any guidelines determined by

the Tribunal.

(3) The broadcaster must not make an election

broadcast in relation to an election before

the close of nominations -

and then:

Subject to this section, a broadcaster must

make, during the election period in relation

to an election -

in relation to the Commonwealth Parliament -

3 election broadcasts by television on each day on which the broadcaster is required to use units of free time allocated to it to make

an election broadcast; and in the case of an election ..... of a Territory - the prescribed number ..... in the case of an election to a

State Parliament - - -

HIS HONOUR: Sir Maurice, what is the purpose of

subsection (3)? How does that fit in to the

Television 14 SIR M. BYERS, QC 14/1/92

overall scheme of regulation which Part IIID

introduces?

SIR MAURICE: Well, Your Honour, it is difficult to see how

it fits in, but I imagine it is to prevent people -

if Your Honour will pardon the colloquialism - from
beating the gun, so getting in an election

broadcast, although it would seem it would have

been prohibited - - -

HIS HONOUR:  That is what I had in mind. One would have

thought that such an election broadcast would have

been prohibited under the earlier provisions.

SIR MAURICE:  Yes, Your Honour, one would have thought so

because it would answer political advertisement,

but Your Honour there is a statement - - -

HIS HONOUR:  But one could not see readily how such a

broadcast would involve the use of units of free

time allocated by the Tribunal.

SIR MAURICE:  No.

HIS HONOUR: Well, Your Honour, I must confess it is

difficult to see what it is at, unless they are

using "election broadcast" in a broader sense in

subsection (3). If Your Honour goes to 95G, at

page 11, it says:

Subject to section 95F, 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 -

so they have used that language -

if, and only if:

(a) the broadcast is of an advertisement that

consists of words spoken by a single speaker

(without dramatic enhancement or

impersonation) accompanied, where the

advertisement is televised, by a transmitted

image that consists of the head and

shoulders - J

this is what they refer to as the "talking head",

somewhere during the debates, I think -

of the speaker; and

(b) the broadcast does not include any other

image, or includes a single additional static

background image only; and - - -

Television 15 SIR M. BYERS, QC 14/1/92

HIS HONOUR:  Is this provision important, because if it is

not I am not going to make an effort to understand

it. It would be a waste of time, Sir Maurice.

SIR MAURICE: Well, Your Honour, I think it is. It is only

so far as it is necessary to try and understand or

answer Your Honour's question, but that is all I

have taken Your Honour to it for.

HIS HONOUR: Well, I am prepared to overlook what appears to

me to be the mystery of section 95Q(3) if it does

not bear on the issues in this case.

SIR MAURICE:  Would Your Honour pardon me a moment? Well,

Mr Gageler suggests that perhaps (3) is really a

qualification on (2), Your Honour.	Your Honour
sees that (2):

Subject to this section, the broadcaster must

use the units in accordance with the

regulations -

and then they have said, "but you cannot make it" -

well, maybe it is, Your Honour. It is still, I

must say, to me, an impenetrable mystery. There is

one other provision, perhaps, Your Honour. There

has got to be application for free time and the

free time, Your Honour -

HIS HONOUR: Well, I might ask Mr Rose. Mr Rose, have you

been, as it were, let in to the mysteries of this

provision?

MR ROSE:  I must confess I have not yet, Your Honour. I may

be able to enlighten Your Honour and the rest of us

before the morning is out.

HIS HONOUR:  Thank you, Mr Rose. We will continue on in

ignorance, Sir Maurice.

SIR MAURICE:

As Your Honour pleases. Section 95H,

Your Honour:

The Tribunal must, within the prescribed period in relation to an election, grant a

period of free time 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 ..... is contesting the election with

at least the prescribed number of candidates.

Then:

Television 16 SIR M. BYERS, QC 14/1/92

The total free time period to be granted to

political parties under subsection (1) is the

period equal to 90% 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 the regulations.

(3) Regulations made for the purposes of

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

give effect to the principle that the amount
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
the last election to the relevant Parliament

or legislature bears to the total number of

such votes obtained.

So, I suppose, that just spells out the notion that

the sitting members get the lion's share of the free time. So what that does is, of course, to disadvantage those who are seeking to stand who are

not members of a party which is already represented

and, in a sense, you could say - and I say this

without intending any disrespect - it entrenches

the existing members.

HIS HONOUR:  What would be the philosophy underlying that?

I mean, apart from the fact that you might want to

favour sitting members, but presumably that is not

the philosophy.

SIR MAURICE:	Your Honour, the philosophy underlying it must be that those parties that are represented are
entitled to a share of the free time, at least
because they have hitherto for obtained the
majority of the voting.  So they get the majority
of the free time.  Now, that is the philosophy, so
far as one can elucidate it from the text, because
subsection (3) says so.

You start off on 90 per cent and then you

distribute that between the existing political

parties with representatives in accordance with the

proportion of valid first preference. Now,

Your Honour, that is the principle and, presumably,

that is the philosophy.

Your Honour, there are provisions dealing with

free launches, but they are facultative only in the
sense that they do not compel the broadcaster to
grant - that is 95S - to grant free time for a

political party.	Your Honour sees 95S, which is at
page 15, says:

Television 17 SIR M. BYERS, QC 14/1/92

Where:

(a) a political party has endorsed one or

more candidates for the purposes of an

election ..... the political party is

represented by one or more members of that

Parliament or legislature, or was so

represented during the last sittings -

they ask for it -

the broadcaster may broadcast that policy
launch once during the election period.

And then, where he has done it for one - that is subsection (2) - he must do it for the others, and

it must be - - -

HIS HONOUR:  Then presumably that stands outside the

prohibitions against political advertising?

SIR MAURICE: Presumably, Your Honour, because it is subject

to, I suppose - that is Division 4, and Your Honour

will remember that the various 95B(4) provisions -

HIS HONOUR: Subject to Divisions 3 and 4.

SIR MAURICE:  Yes, but not to State - if Your Honour, for

example, takes 95D and - - -

HIS HONOUR: Well, presumably a government or a government

authority would not be seeking to have a political

launch broadcast.

SIR MAURICE:	One would not have thought so, Your Honour.
HIS HONOUR:	It would be the political party, even if the

political party happens to be in government, that

is seeking the - - -

SIR MAURICE:  That is so. And so what it is directed to is

Division 3 and Division 4, which would keep it outside subsection (4).

HIS HONOUR:	Yes.
SIR MAURICE:	So you have the compulsory free time, and then

you have this limited - the capacity to grant a

policy launch. Now, Your Honour, those are the

relevant provisions. What we want to say about

that is this, Your Honour: we wish to say first of

all that so far as the licensees are concerned, the

licences they have entitle them to broadcast

advertisements and to charge for advertisements,

and we say that arrives in two ways.

Television 18 SIR M. BYERS, QC 14/1/92

It arises because sections 99 and 100 of the

Act in terms so refer, and they are the provisions,

Your Honour, in the Broadcasting Act. I do not

know whether Your Honour has a copy of that

available. If Your Honour has this cumbersome

publication - my learned friend the Acting

Solicitor has one, Your Honour, and he has - - -

HIS HONOUR:	Thank you.
SIR MAURICE:	Your Honour will see, section 99(1) - - -
HIS HONOUR:	The Act is beginning to look like the Income Tax Assessment Act.

SIR MAURICE:  Yes, Your Honour, that is so. It is as

difficult to understand, Your Honour. Indeed -

well, perhaps I should not say that. I was about

to say that without guidance, but one could - - -

HIS HONOUR:  You used not to say that, Sir Maurice. It is

only in more recent years you have come around to

suggesting that you cannot understand.

SIR MAURICE: If Your Honour pleases.

A licensee ..... shall provide programs ..... and

may provide programs being advertisements.

And then, section 100(2) says:

A licensee intending to broadcast

advertisements shall public particulars of his

advertising charges.

So, clearly, what he gets by his licence, on any

view, is a right. Now, perhaps if Your Honour has

that copy, would Your Honour go to - the way it

fits in, as we would understand it is this, that

section 6A(l) of the Act says that:

A person shall not, without reasonable excuse,

operate a radiocommunications transmitter to
transmit radio programs or television programs

to the general public except as authorised by:

amongst other things -

a licence warrant.

So that is the prohibition. And then, if

Your Honour goes to, so far as television stations are concerned, 89D. There is a whole bundle of

sections in section 89, Your Honour.

HIS HONOUR:  It is that section that provoked my earlier

remark.

Television 19 SIR M. BYERS, QC 14/1/92

SIR MAURICE:  And (3) says:

Where the Tribunal has determined that a

in respect of the licence -

licence should be granted to a person, the warrant

and then - I do not think I need worry Your Honour

with the rest of it. So, once you have the

licence, you get the licence warrant, and so the

prohibition in 6A(l)(a) is lifted.	So it is no
doubt in accordance:

authorizes the operation, in accordance with

the warrant and by a person or persons

specified in the warrant, of a particular

radiocommunications transmitter or

transmitters -

and so on, to send out programs.

So what you get is either a lifting of the

prohibition so your common law right to do it, your

right to do it, is there unaffected by the

statutory prohibition; or, you can say your right

to broadcast derives from the licence and it is a

right deriving from a licence which is an item of

property in any event.	It enables you to broadcast
and it enables you to charge.	The statute says you
can do it.	So therefore you may broadcast
advertisements.	So in elections - that is so far
as one has a commercial television station.	The

essence of it is the right to charge for the
advertisements in association with the transmitting

of a programme.

Now, what this Political Broadcast Act does is

to take that away. It says you cannot broadcast

advertisements but, it says, people may get you to

broadcast their advertisements free. So what they

have done is taken away the right to charge vested

in the licensee and in substance given it to the
person who wants the political advertisement.	So

therefore they have acquired - an item of property

has been, by a law of the Parliament, taken from

the person in whom it is vested and given to

someone else. Now that is the substance of it.

We would submit there are two ways. Whichever

way you look at the effect of the grant of a

licence, whether as restoring a right to charge at
the common law to which the statute is additional

or certainly not contradictory, or whether you

regard it as a right deriving from the licence

itself, in each case you have something which is

valuable or something that is the property, the

right to conduct broadcast and charge. You can

Television 20 SIR M. BYERS, QC 14/1/92

broadcast your advertisements and charge for them.

Therefore, you have a right to sue and you cannot

have that chose in action taken away.	We submit
that is what this legislation does.

We submit, Your Honour, with respect, that that is an acquisition of property, that there are

no terms provided. At present, the affidavit of

Mr McGill shows that there are no restrictions for

commercial television stations as to the amount of

time they may use in any one 24 hours to broadcast

advertisements. Certainly there has been no

attempt to change that.

Your Honour will find the - if Your Honour

goes to exhibit 10 to Mr Ian McGill's affidavit of

7 January, Your Honour will find - the only

relevant part of this is attachment A, which is on

page 2. It says -

HIS HONOUR: Attachment A?

SIR MAURICE:  Yes, on page 2 of the exhibit. Your Honour

sees the exhibit is called Hours of Service,

POS 04.

HIS HONOUR:	Which exhibit are you referring to?
SIR MAURICE:	The exhibit to Mr McGill's affidavit, No 10.

HIS HONOUR: Exhibit No 10?

SIR MAURICE: Exhibit No 10. That is the affidavit of

7 January.

HIS HONOUR:  Yes, and paragraph 14 refers to exhibit No 10,

a copy of a policy statement issued by the

Australian Broadcasting Tribunal, is it?

SIR MAURICE:  Yes, that seems to be what POS refers to. It

starts off by saying: 

The Tribunal has made a determination in

attachment A. The effect of the determination

is that the basic hours of service of the

licensees -

they mean the hours of service of all licensees

are extended to 168 hours a week -

which is every hour in a week, I think, Your Honour-

in other words, licensees will be able, if

they choose, to provide a 24 hour-a-day

service.

Television 21 SIR M. BYERS, QC 14/1/92

Then if Your Honour goes to attachment A, over the

page:

This determination applies to each licensee.

That is l(a). It defines weekly hours of service.

(2) says:

A licensee may adopt such weekly hours of

service as it thinks fit and may vary those

hours either permanently or temporarily.

It then talks about a reduction:

Where a licensee makes a reduction -

there are several steps.	He has got to give
reasons for it.

From 1 September until the first occasion on which a licensee reports to the Tribunal any

variation in its weekly hours of service, the

average weekly hours of service referred to in

l(a) shall be the number of hours per week

which he has been authorized by the Tribunal

to transmit.

One may then go for advertisements without limit.

HIS HONOUR: 

But is there no regulation of the amount of

broadcasting time that a television licensee can
devote to the broadcasting of advertisements?

SIR MAURICE: 

No, Your Honour.

HIS HONOUR: There is not?

SIR MAURICE: There is not.

HIS HONOUR:  It may be changes have been made, but I had understood that in the past there had been some

restriction.

SIR MAURICE:  This is what is called self-regulatory code,

which means there is no regulation.

HIS HONOUR:	So how long has - - -
SIR MAURICE:	My learned friend tells me it is 1987.

HIS HONOUR: In a sense this is by the way. Historically

the important thing was that restrictions which

were in place until 1987, otherwise presumably than

in these documents, .....

Television 22 SIR M. BYERS, QC 14/1/92

SIR MAURICE:  Yes, that could be, Your Honour, but all I am

saying, with respect, Your Honour, is that the

right to charge - - -

HIS HONOUR:	Yes, I see.	I take your point.
SIR MAURICE:	And that has been taken away.	We say that is

an acquisition of property. There are no just

terms. There cannot be any just terms. If you can

broadcast 168 hours a week or 24 hours a day, then

you can broadcast advertisements without limit.

HIS HONOUR:  But I suppose likewise, if restrictions were

reintroduced by way of qualification of the present

self-regulatory regime, you would be saying to the

extent that any restriction was introduced, that

amounted to an acquisition of property.

SIR MAURICE:  Yes, Your Honour, it must be so, so we would

say. Whether that confident-sounding assertion -
but Your Honour has, with respect, as I am

accustomed, said accurately what we would be saying. So we say therefore there can be no

dispute, that if you say the right derives from the licence, that the licence gives a right to property

within the constitutional sense, and the rights

deriving from it, its essence had been taken away.

HIS HONOUR: That submission is not altogether consistent

with Tasmanian Dams, is it?

SIR MAURICE: We submit it is, Your Honour. Perhaps I could

refer Your Honour to - Your Honour did in Tasmanian

Dams refer to the statement of Sir Owen Dixon in

the Commonwealth Bank case, 158 CLR 145.

Your Honour says:

The effect of s. 51(xxxi) was correctly stated

by Dixon Jin Bank of NSW v The Commonwealth

("the Banks Case"):  "I take Minister of State for the Army v

Dalziel to mean thats. 51(xxxi) is not to be confined pedantically to the taking of title

by the Commonwealth to some specific estate or

interest in land recognized at law or in

equity and to some specific form of property

in a chattel or chose in action similarly

recognized, but that it extends to innominate

and anomalous interests and includes the

assumption and indefinite continuance of

exclusive possession and control for the
purposes of the Commonwealth of any subject of

property. Section 51(xxxi) serves a double

purpose. It provides the Commonwealth

Parliament with a legislative power of acquiring property: at the same time as a

Television 23 SIR M. BYERS, QC 14/1/92

condition upon the exercise of the power it
provides the individual or the State, affected

with a protection against governmental

interferences with his proprietary rights

without just recompense. In both aspects

consistency with the principles upon which

constitutional provisions are interpreted and

applied demands that the paragraph should be

given as full and flexible an operation as

will cover the objects it was designed to

effect."

Then, Your Honour, Mr Justice Deane, who adopted -

Your Honour said with the majority that Sl(xxxi)

was concerned with an acquisition, and that what
would happen to the land was short of an

acquisition. Then Mr Justice Deane took a

different view, but he at 281 also referred to the

statement of both Mr Justice Dixon and I think some

observations of Mr Justice Stephen in Toohey v

Commissioner for Trade Practices. He talks about general limitations at page 280 and he goes on to

talk about Dalziel and he says at page 282:

constitutional guarantee ..... not of just terms but against acquisition without just terms.	It has, however, assumed the status of a of par. (xxxi), with its requirement of "just terms", ins. 51 is that other heads of power,
including the incidental power (s. Sl(xxxi)),
do not authorize legislation for the
acquisition of property ..... It is also
settled that a law can be a law with respect
to the acquisition of property for any purpose in respect -

and so on. He then talks about McClintock.

There are two obvious limitations -

then he refers to Schmidt. At the bottom of the

page, he refers to what Sir Owen Dixon said in Bank

of NSW, which Your Honour had quoted earlier. His

Honour then sets it out and then His Honour takes

the view on page 284 that Mr Justice Stephen had

suggested in Trade Practices Commission v Tooth

that you could get so substantial a diminution of a
right without an actual taking of the estate, for
lack of a better word, but that is the sort of
notion, that you would have an acquisition of

property. His Honour says, "I am prepared to say

that". The passage that he quotes from

Mr Justice Stephen is:

"On the one hand, many measures which in one

way or another impair an owner's exercise of

Television 24 SIR M. BYERS, QC 14/1/92

his proprietary rights will involve no

'acquisition' such as pl. (xxxi) speaks of.

On the other hand, far-reaching restrictions upon the use of property may in appropriate

circumstances be seen to involve such an

acquisition. That the American experience

should provide guidance in this area is
testimony to the universality of the problem

sooner or later encountered wherever

constitutional regulation of compulsory
acquisition is sought to be applied to

restraints, short of actual acquisition,

imposed upon the free enjoyment of proprietary

rights. In each case the particular

circumstances must be ascertained and weighed

and, as in all questions of degree, it will be

idle to seek to draw precise lines in

advance."

And then he goes. The quotation ends:

I agree with Stephen J's approach and propose

to adopt a similar approach in the present

case -

and he then goes to apply that and says that there

was an acquisition because of the restrictions

placed by the Federal Act upon the Commonwealth

use. Your Honour will remember this.

HIS HONOUR:  No action has yet been taken by the Tribunal in

relation to imposition of free time, has it?

SIR MAURICE:	No.
HIS HONOUR:	So that we need not be concerned about it so

far as the current by-election is concerned.

SIR MAURICE:  No, Your Honour, nor perhaps - well there are

looming, if Your Honour will allow me to say so,

three elections; the current by-election which is

on 18 January - - -

HIS HONOUR:  And the Tasmanian election.

SIR MAURICE:  And the Tasmanian on 1 February. These are

referred to in the statement of claim. Then the

Australian Capital Territory date is 15 February.

Your Honour, that is in paragraphs 8, 9 and 10 of

the statement of claim that - sets out those

matters.	I would imagine there is no dispute about
that.	So that, Your Honour, we would say

that - - -

HIS HONOUR:  I take it that is accepted, is it, Mr Rose?

One would have expected that material to be on

Television 25 SIR M. BYERS, QC 14/1/92

affidavit, but is it accepted that those elections

are on those dates?

MR ROSE:  Yes, Your Honour.

HIS HONOUR: It is in the affidavit.

SIR MAURICE: It is.

HIS HONOUR:  Yes, but we need not worry about the affidavit

as Mr Rose accepts it.

SIR MAURICE:  No, Your Honour, that is so but, Your Honour,

I am sure it is there, just as the provision about

total advertising time is there, the provision I

have just read to Your Honour. That is one basis

on which we would say that Division 3 is invalid

and since the various sections that contain a
general prohibition are subject to Division 3, then

they too would be invalid because the general

prohibition in any event is in each case said to be

subject to Divisions 3 and 4. That is in

sections 95B, 95C(5), 95D(4). So we would say that

the hope in section 95(2), I think, as to

severability which would not carry it much	further,
Your Honour, would be defeated, but in any	event,
Your Honour, those subsections would fall.	I think
it is 95(2), Your Honour:

It is the intention of the Parliament that the several provisions of this Part should operate

to the extent to which they are capable of

validly operating.

HIS HONOUR:  Could I just ask you this question? Your

submission in relation to free time is that the

entirety of Division 3 is invalid - - -

SIR MAURICE:  Yes, Your Honour.

HIS HONOUR:  - - - and that on the ground that it infringes section 5l(xxxi).

SIR MAURICE: Yes, Your Honour.

HIS HONOUR:	Now, is there any other ground of invalidity relied upon to support your challenge to
Division 3?

SIR MAURICE:  Yes, Your Honour. We say, also, that the

transmitting of programs by a television station is

intercourse within the meaning of section 92.	Two
of the plaintiffs have areas crossing State

boundaries and so they would be caught by or within

the embrace of that provision, or that guarantee,

however one cares to call it. And, Your Honour,

the authorities that we would wish to rely on there

Television 26 SIR M. BYERS, QC 14/1/92

would be McGraw-Hinds v Smith, 144 CLR 633. The

passage of Your Honour's is at 647. This was a

case where there was sent by post a document which,

upon acceptance, would give rise to a contract, and

Your Honour said, about the middle of the page:

No doubt the motive of the legislature in

enacting s.8 was the proscription of
undesirable and objectionable practices, but

the second limb of s.8(3) gives the

legislation an operation which no one could

fairly say was limited to that subject matter.

On no possible view can it be said to be

undesirable in all circumstances to send a

document informing the recipient of the

price ..... for a service if it were performed.

Yet that is what the legislation prevents.

Then Your Honour quotes something from - - -

HIS HONOUR:  Mikasa.

SIR MAURICE:  Mikasa. I am sorry, that is Mr Justice Gibbs.

Page 659 was Your Honour. Well, His Honour goes on

to refer to "intercourse". His Honour goes on, at

the bottom of that page, after Mikasa - - -

HIS HONOUR:  Yes, then over to the top of 640.

SIR MAURICE:  Over the top of the next page. Your Honour,

at page 659 - it is about 10 or 12 lines from the

bottom - says:

Just as the movement of goods and persons across a State border is protected by s.92, so also is the sending of communications, whether the movement across the border takes place pursuant to the requirements of a contract or

not.	We are not here concerned with the
question -

and Your Honour goes on to another question which

was then much agitated.

HIS HONOUR:	Yes, but that case related to prohibitions.
SIR MAURICE:	Yes, Your Honour.
HIS HONOUR:	Now, your attack on Division 3 is not an attack

on prohibitions.

SIR MAURICE:  No, but I use this also to attack 95B, C

and D.

HIS HONOUR:  I follow that, but I was concerned to isolate

for the moment your attack on Division 3.

Television 27 SIR M. BYERS, QC 14/1/92

SIR MAURICE: That is the basis of it, just terms.

HIS HONOUR: Well, Sl(xxxi) is your principal ground

SIR MAURICE: For Division 3.

HIS HONOUR:  Yes, but I do not see at the moment that what

was said in McGraw-Hines bears on the invalidity of

Division 3.

SIR MAURICE:  No, I would not suggest that it does. I only

say that that bears upon the invalidity

of 95B(4), 95C and 95D. I am not concerned with

the provisions that relate to the Commonwealth, the

State or the Territory.

HIS HONOUR: It may be )SSible, Sir Maurice - I have not

applied my mi:. ... to this - for you to present an

argument based on section 92 of the kind that was

presented in the Nationwide News case. Now,

whether you could do that, I do not know, because I have not applied my mind to it, but essentially the

argument in the Nationwide News case, to the extent

that it was based on section 92, was that there

there was a contraction, in effect, of the right to

communicate across State boundaries. Now, whether

it is possible to say that the imposition of an

obligation constitutes a relevant infraction with a

freedom guaranteed by section 92 to communicate

across State boundaries may be a question. Now, I

am not inviting you to put that submission, but I

am at pains to avoid a situation in which at some

later stage of this case an argument is put that is

not foreshadowed at the present time.

SIR MAURICE:  We would submit that that is open, certainly

when one bears in mind, firstly, upon the basis

that one bears in mind section 95B and the context

of Division 3, that is the free time provisions,

because they are allied provision, they say you

cannot broadcast but you must broadcast free, then

we would say that in any event the obligation to

broadcast free is itself a restriction certainly on

the capacity to broadcast interstate commercially

because it says you cannot do it commercially and,

therefore, it is a restriction both on Division 3

and on 95B.

Your Honour, we would also refer to Cole v

Whitfield - I do not know whether Your Honour wants

me to read the passage out.

HIS HONOUR:	No.
SIR MAURICE:	The passage are at 165 CLR at 387 to 388, and

393 to 394. Your Honour will be familiar with

those. Your Honour, the observations of

Television 28 SIR M. BYERS, QC 14/1/92

Mr Justice Isaacs in R v Smithers, Ex Parte Benson,

16 CLR 99 at 113, His Honour says, just above the

middle of the page, having referred to

Lord Selborne:

We then have to inquire what is meant by

"intercourse" in sec 92. We have not to

consider, and I offer no opinion, whether or
not that word in its fullest acceptation is

included in the first subsection of sec 51.

It is found in sec 92 expressly enacted, and

according to all accepted rules of

interpretation - particularly strong in the

case of a self-governing constitution - the

word must have some meaning additional to the

other words in the same section. What is the

extent of that additional meaning?	Does it
include the present case?

Its natural meaning is explicit and

carries it as far as the applicant contends.

To limit it to commercial intercourse would

make the right of personal freedom to pass a

State line depend on the fact of whether the

individual was engaged in trade or commerce,

and if that were to be given a restricted

signification, the people of the Commonwealth

would have to rest their right to cross a

State line, not on their personality or their

common citizenship, but on the sordid fact of

some inter-State business transaction. In

that case, however, "intercourse" would carry

no signification and might as well be omitted. But, if once it be conceded that it does carry

some additional meaning, where is the line to

be drawn? Is it possible to draw any line?

Once admit that the word includes a personal

right in an Australian as such, and

independent of any commercial attributes he

may possess to pass over this continent

irrespective of any State border as a reason

in itself for interference, then I turn in

vain to the Constitution to find any

limitation -

and he says there are none. So, we would say that

that supports the argument on section 92.

Your Honour, we would then want to say that,

additionally, both Division 3 and Division 2 are

invalid on another basis. Your Honour, what they

do is to restrict people who may wish to be

candidates advertising upon an accepted medium of

information. If so, if it may be important, it

does so to the advantage of those already occupying

the legislative seats.

Television 29 SIR M. BYERS, QC 14/1/92

Now, we say that there is in the electoral

provisions of the Constitution, both State and

federal, an implied right of freedom of

communication in a course of the electorate, so

that a person wishing to propound his case is

entitled to make known that he is standing for

election and what his points of view are, and, we

submit, that is the basis on which talks about

parliamentary government as the Constitution does,

that the notion of parliamentary government is

picked up, not only in the provisions relating to

the States, but in the provisions such as

section 24 and so on, and in association with the
State provisions.

We would say, Your Honour, that if one looks

through and bears in mind the history of the grant
of responsible government, if one looks, for

example, to sections such as section 7 in the

second paragraph, it says:

But until the Parliament of the Commonwealth

otherwise provides, the parliament of the

State of Queensland ..... may make laws dividing

the State into divisions -

and section 9, the second paragraph, again:

The Parliament of a State may make laws for

determining the times and places of election

of senators for the State.

Section 10:

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.

Section 15, the first paragraph, Your Honour - it

now has many, but:

If the place of a senator becomes vacant before the expiration of his term of service,

the Houses of Parliament of the State - may appoint a successor. Section 25:

For the purposes of the last section, if by

the law of any State all persons of any race

are disqualified from voting at elections for

the more numerous House of the Parliament of

the State, then, in reckoning the number of

the people of the State or of the

Television 30 SIR M. BYERS, QC 14/1/92

Commonwealth, persons of that race resident in

that State shall not be counted.

Section 29:

Until the Parliament of the Commonwealth otherwise provides, the Parliament of any

State may make laws for determining the divisions in each State for which members of

the House of Representatives may be chosen -

but, again, you have the State parliaments as

representative bodies. The constitutional

background is that one had responsible government

in every State. Section 31 is another section.

Then Your Honour will remember that section 61

says:

The executive power of the

Commonwealth ..... extends to the execution and

maintenance of this Constitution -

and that would extend to provisions such as

section 106 which says, really by implication, "You

may only change your State constitutions in

accordance with the law of the constitution of a

State."

So, again, Your Honour, one has this, we would

respectfully submit, notion built into federal

power that you do have representative elections and

therefore you have a right of people to stand and

you cannot just restrict that either for the

federal Parliament - Commonwealth Parliament - or for the States. In point of subject-matter - and

this is another argument, perhaps - one would

wonder how it is that the electoral processes of a

State are subject to federal laws because in so far

as the Constitution gives one any clue, the

provisions to which I have referred do indicate

that the laws of the State parliaments in relation

to their electoral affairs may be changed but only

for the electoral affairs of the Commonwealth

Parliament, not for the electoral affairs of the

State and, Your Honour, section Sl(xxxvi) picks up

those provisions.

So, we would say, Your Honour, essential to

the State's constitutional working is its conduct

of its electoral processes and we would say that is

one of those areas, whether one is thinking in

point of power or in point of implication -

restriction on power - where the federal Parliament

is denied the right to legislate upon the elections

of the State except so far as that may impede a

Television 31 SIR M. BYERS, QC 14/1/92

Commonwealth election. So, that is a different

ground.

We would refer Your Honour - it is not a very helpful comment, perhaps, in many ways but in Union

Steamship Company v King, 166 CLR 1, there is a

reference to these crucial notions that are

imbedded in the Constitution although the Court

does not stay to decide upon it. The Court says,

constituted by every member, at page 10:

Whether the exercise of that legislative power

is subject to some restraints by reference to

rights deeply rooted in our democratic system

of government and the common law, a view which question which we need not explore.

HIS HONOUR: Well, that is directed, is it not, to the view

expressed by Sir Robin Cooke in New Zealand?

SIR MAURICE:  Yes. Well, I think that is probably right.

Your Honour, when one is talking about the

processes of election and how candidates may make

known their positions and how parties may make
known their position, one is talking about

something that is essential to representative

government and we would submit, with respect, that

one cannot - if Your Honour will pardon the

expression - "load the dice". One cannot say,

"Well, we'll take away the right to do that but

we'll impose upon some particular persons in the

community the obligation to give it free but load

it in favour of those who are present sitting in

the Parliament and parties of which they are

members."

HIS HONOUR:  Well now, can we get a little more specific

about the submissions that you are making on this

point.	I am not being critical of what you have
said but for the purpose of my own comprehension,	it does seem that you are saying that quite apart
from any matter based on section 92, there is an
implied right, an implied constitutional right to,
as it were, express one's point of view about
political matters. Whether one wants to call that
an implied right of freedom of speech or not, you
are putting it on a more restricted basis so that
the implied right to express one's point of view to press one's claim as a candidate is associated with the democratic political process.

SIR MAURICE:	Yes, Your Honour.
HIS HONOUR:	Now, that may turn out to be an implied right that the candidate has, it may turn out to be an
implied right that commentators or citizens have to

Television 32 SIR M. BYERS, QC 14/1/92

express their views with respect to political

matters. But in addition to that you appear to be

saying that there is an implied if not an

acknowledged right on the part of State parliaments
to regulate their own electoral processes and, for
that matter, the political campaign processes or

procedures that accompany the electoral process to

the exclusion of Commonwealth control.

SIR MAURICE:	Yes, Your Honour.
HIS HONOUR:	Now, that seems to be a quite separate matter.

SIR MAURICE: It is.

HIS HONOUR:  Now, apart from those two ways of putting the

proposition that you have been currently

expounding, is there any other basis on which you

put it?

SIR MAURICE:  The only other way is perhaps derivative from

some of these. We would say there is an implied

right of communication - freedom of communication

in Australian citizens.

HIS HONOUR: Well, that is a broader right, is it not, than

the way you have currently been putting it?

SIR MAURICE:  Indeed, Your Honour. That is a right, we say,

that arises from the creation of the Commonwealth.

It is derived from the agreement of the people of

the various States, which Your Honour will remember
in the preamble, so it is a Commonwealth

constituted - it is constituted by the people of

the States.

So, what was created was the new body, the new

entity of which all those would be citizens. You

never had any State citizens, so everyone was to be

Commonwealth citizens and he and she have a right

to communicate and express their views deriving

from their common citizenship.

We would respectfully submit, Your Honour,

that that would go wider than a right to

communicate their views to the federal authority

but would go as a sort of a right to communicate

their views on any legitimate subject-matter of

discussion, which would be State elections, federal

elections and general matters of significance. It

could be warfare, it could be freedom of speech,

for example, Your Honour. How far can the

Parliament use its powers to restrict the right to

express opinions?

We wish to submit to Your Honour that implied

in the creation of the new institution and in the

Television 33 SIR M. BYERS, QC 14/1/91

common citizenship is that right of communication.

It was a citizenship of equals.

HIS HONOUR:	Then, to be clear, that is without limit as to subject-matter, making due allowance for whatever
legislative power there may be to inhibit freedom
of communication?
SIR MAURICE: That is so, Your Honour.	Certainly, we would

say that would be the general

HIS HONOUR:	On the score of say contempt, sedition?
SIR MAURICE:	Yes, sedition, contempt, things of that sort,

Your Honour. And you might get, in places, of

obscenity and so on but they are rights, in our

respectful submission, which derive from the

creation of the Commonwealth and the common

citizenship. Just as a right of passage, the

powers derived.

HIS HONOUR:  Because if it were to transpire that section 92

contains some limited express right of

communication across State boundaries, this

argument would encounter more difficulties, would

it not?

SIR MAURICE:  It would encounter that difficulty, yes,

Your Honour. But we would respectfully submit that one cannot read section 92, which is a grant of a

right, as restrictive of rights otherwise granted,

any more than, for example, the majority in that

case in 16 CLR, that is Mr Justice Barton and Sir

Samuel Griffith, did.	Your Honour will remember 16
CLR.	It is where they applied this Crandall v
Nevada.

HIS HONOUR:	Yes.
SIR MAURICE:	Your Honour, the Chief Justice says, at

page 108:  The so-called "police power" of the

Colonies before the establishment of the

Commonwealth extended to the exclusion of any

person whom the Colonial Parliament might

think an undesirable immigrant. It is clear

that the continuance of such a power to its

full extent after the federation is

inconsistent with the elementary notion of a

Commonwealth.

And then he goes on and he adopts what was said by

Mr Justice Miller in Crandall, that there is a

right to seek protection and so on. He said:

Television SIR M. BYERS, QC 14/1/91

But if the government has these rights on her

own account, the citizen also has correlative

rights. He has the right to come to the seat

of government -

I do not know whether Your Honour remembers that

passage or Your Honour wishes me to read it again.

HIS HONOUR:	No, there is no occasion to do that.
SIR MAURICE:	He concludes at the top of the page and

Mr Justice Barton is of like opinion. Nothing,

really, in the judgment of Mr Justice Isaacs denies

that right. And Mr Justice Higgins says that

section 92 affords sufficient ground for the

release of the prisoner.	I think he dissented, at
any rate.	So that was the basis.

You have a decision of the Court to which

there might be added, Your Honour, the statement of

Sir Owen Dixon in Pioneer Express v Hotchkiss,

101 CLR. The passage is at the bottom of page 549,

and this is talking about the Territory:

A claim resting on a much more solid

foundation was made for a constitutional

implication protecting the citizens of

Australia, or if one prefers to put it from

the corresponding opposite point of view,

protecting the Capital Territory, from
attempts on the part of State legislatures to

prevent or control access to the Capital

Territory and communications and intercourse

with it on the part of persons within the

States, and to hamper or restrain the full use

of the federal capital for the purposes for

which it was called into existence. No one

would wish to deny that the constitutional

place -

and he goes on to talk of -

the Capital Territory in the federal system of

government and the provision in the

Constitution relating to it necessarily imply the most complete immunity from State interference with all that is involved in its

existence as the centre of national

government, and certainly that means an

absence of State legislative power to forbid

restrain or impede access to it.

And then he says that the State law is in question.

But Your Honour sees that what he puts it on is

citizens. So he is saying, "Citizens of

Australia", and the particular right of citizenship

that he was concerned with was their right of

Television 35 SIR M. BYERS, QC 14/1/91

access to the Capital Territory. So, we would

submit, Your Honour, that the proposition for which

we contend as to freedom of communication is

analogous to what Sir Owen Dixon said.

Your Honour, those would be the bases - can I

just say something about injunction. Your Honour

in Castlemaine Tooheys, and again in Richardson -

Castlemaine Tooheys, 161 CLR - considered the

question of whether interlocutory relief would be

granted. There is nothing that we would wish to

say that would in any way seek to call that in

question. Your Honour, the passages are at

pages 153 and Your Honour considers the balance of

convenience at page 154.

What we would wish to say here is this: what

has happened is that the federal Parliament has, as

it were, trespassed upon rights. It is, by this

legislation, adopting matters, for the first time, which intrude into not only the rights that it has granted to the proprietors, economic rights, but

general rights of people to participate in the

electoral process. It is doing it, it is doing it

for the first time, it is doing it not for the

advantage of the community as a whole - no one is

advantaged in the community as a whole - but it is

doing it for the advantage of those political

parties that are represented in the Parliament and

at the expense of both the community as a whole and

those who have to bear the burden, namely the

television stations.

So that, one has, for the first time, a novel

intrusion into accepted situations; in other

words, the accepted right to conduct elections, the

accepted right to participate in elections. They
are all restricted and for the first time. If

those restrictions are held to be invalid the

electoral processes will be defeated according to

their proper constitutional operation and

that - - -

HIS HONOUR:  I wanted to ask you this question: let us

assume that the current by-election for The

Entrance proceeds with the prohibitions in

operation but without any imposition of an

obligation to afford free time. In the event that

you succeed and you succeed not on your acquisition

of property argument but on one of the other

grounds upon which you base your case for

invalidity, does the way in which the election has

been conducted with the current ban on political

advertising affect the outcome of the election?

SIR MAURICE: Well, it means it has not been properly

conducted. It means that the right of those

Television 36 SIR M. BYERS, QC 14/1/91

involved in the election to be informed has been

restricted by the operation upon - I think it is

probably only one present plaintiff but, in any

event, in relation to radio. True it is subject to

section 95A but I have already put submissions to

Your Honour on that. So that, really, the

electoral process will have been irreparably

injured. When I say it is irreparably injured,

because once the election is finished, one cannot

undo it. But one will have an election that was,

as it were, flawed throughout its process.

HIS HONOUR:  Is it necessarily a flaw which would affect the

validity of the election?

SIR MAURICE:  I cannot say that it would affect the validity

of the election, Your Honour, because once the

election is over the election would not, one would

think, be undone on the basis that the law was

invalid just as - if Your Honour will remember the

provisions in - - -

HIS HONOUR:  The election might not be undone on the basis

that the law was invalid and I have not looked into

this so I am not really aware of it and I do not

know what the Electoral Acts provide and I do not

know what American experience would offer but if it

transpired that a fundamental right was denied and

that fundamental right was a platform for elections

generally held in this country, might there not

then be a question as to the validity of the

election?

SIR MAURICE:  Yes, indeed. Perhaps I was thinking only of

one election, the by-election.

HIS HONOUR:	But I do not see what the distinction would be between the by-election and a general election.
SIR MAURICE:	What Your Honour says is correct, with

respect.

HIS HONOUR: That is why I have taken the by-election as an

example because we do know that the by-election is

going to proceed on this footing.

SIR MAURICE: Yes, and so far as it is likely that the

others - well, subject to any intervention, the

others will proceed but - - -

HIS HONOUR:  When I say "on this footing", without the

imposition of any free time.

SIR MAURICE: Yes, and subject to the prohibitions.

HIS HONOUR:  And subject to the prohibitions. So it would

seem, Your Honour, that the prohibitions, in our

Television 37 SIR M. BYERS, QC 14/1/91

respectful submission, would operate to defeat the
rights - which, in our submission, are fundamental

rights - of citizens, including in particular those

citizens there. I must confess, Your Honour, I do

not know whether the State Electoral Act would

enable one to say - that is, to set it aside, in

terms, but it may be that that is - one would think

if an election has been held and what is said to be

a fundamental right has been denied, the election

could not stand because it could not stand

consistently with the right the citizen has to cast

his vote, properly informed, and we would submit

that then, by one process or another, it could be

set aside.	Your Honour, I do not know what the
process was.	Maybe it would have to come to this
Court.	But one would think that where one has

fundamental rights they cannot be flouted. It is

just impossible to flout them.

HIS HONOUR:  In a sense, what I have in mind is this that in

the old days, of course, political campaigns were

conducted by individuals holding meetings,

communicating their point of view at meetings, even

to the few electors at Old Sarurn but, of course,

that is done to a minor extent these days.

Essentially, the point of view of candidates and

parties is transmitted in the media.

SIR MAURICE: That is so, Your Honour. Undoubtedly radio

and television, particularly the latter are the -

Your Honour knows how these launches and so on - he

comes along and gives his speech. They are the

essentials of communicating the parties' platform,

the parties' wishes and the capacities of the

particular candidates. We would submit,

Your Honour, with respect, what this Act has chosen

are the crucial means of information, what have

become the crucial means, and therefore that the

damage is an irreparable damage.

HIS HONOUR:  But you do have this problem in an - well, when

I say "this problem", there are really two problems

you have got: one is that you are not representing

somebody who is seeking to get his political view

across, you are representing television licensees

whose interest in this venture is that of making a

commercial profit. You, in a sense, are, as it

were, accidental voyagers on this coach that is

filled with constitutional rights, express and

implied.

SIR _ ,RICE: Hardly accidental, Your Honour.

HIS HONOUR: Incidental.

SIR MAURICE: Incidental. But they are the people that, as

it were, convey the message arid I think that is

Television 38 SIR M. BYERS, QC 14/1/91

only basis I can say it.	I have to accept what
Your Honour has said.

HIS HONOUR:  But the second thing is, in Castlemaine Tooheys

I did say, of course, that it is for the Court to accept the validity of enactments until they have

been shown to be ultra vires.	Now, of course, that
is subject to some qualification.	I was going to

say here the problem it seems to me is that your

clients are in the situation where they have to

make up their own mind whether or not the

legislation is invalid. They have to act on your

them in the event that they did not

advice rather than any advice I propose to give. prosecute

comply with these prohibitions, there is no way in which I should grant an injunction restraining the

Commonwealth from launching prosecutions.

SIR MAURICE:  No. I would not suggest Your Honour should.

HIS HONOUR:	And you are not going to ask me to, are you?
SIR MAURICE:	No.

HIS HONOUR: Although the general form of the interlocutory

relief you seek is certainly wide enough to cover

that.

SIR MAURICE:  Yes, Your Honour. Your Honour, what we would

seek is whether the enforcement of the Act should

be stayed.

HIS HONOUR:	What do you mean by "enforcement of the Act"?
SIR MAURICE:	I mean putting it into effect, Your Honour, so

that what Your Honour says is that the provisions

in relation to 95 - - -

HIS HONOUR:  But what form of injunction would I grant?

SIR MAURICE:	Your Honour would grant an injunction restraining the operation of sections 95B,
95C - - -
HIS HONOUR:	But how can I restrain the operation of an Act?

It operates as a matter of law.

SIR MAURICE:  Your Honour can restrain its enforcement.

HIS HONOUR: If it is valid. If it is invalid it does not

operate.

SIR MAURICE:	Yes.
HIS HONOUR:	I can only grant an injunction restraining the

Commonwealth from doing something, from taking some

Television 39 SIR M. BYERS, QC 14/1/91

particular step or act.	Now, what are you asking
me to do?

SIR MAURICE:  The only thing I can say, I am asking

Your Honour to restrain the enforcement of the law.

That is what we have asked for.

HIS HONOUR:	Can you refer me to authority where this Court has granted an injunction restraining the
government from enforcing the law? It certainly would be novel in terms.
SIR MAURICE:	Your Honour, some of those injunctions that

were granted under section 92 were

injunctions - - -

HIS HONOUR:  They were injunctions, were they not,

restraining the Commonwealth or a statutory
authority from taking some particular step, like

seizing the plaintiff's wheat.

SIR MAURICE:  Yes, Your Honour, but that is just a piece of

terminology. The right to seize the wheat - - -

HIS HONOUR:  Certainly it is a bit of terminology but it is

a bit of terminology that is very different from

restraining the Commonwealth from enforcing the

law.

SIR MAURICE: Enforcing the statute. Your Honour, that is

all I can say. In fact, that is what was sought in

Castlemaine Tooheys. I know Your Honour - - -

HIS HONOUR:  What I had in mind was this, Sir Maurice: as I

say, it seems to me that your clients have got to

make up their minds whether they are going to live

by the view which they have formed as to the

validity of this legislation or not. But it might

be a different story if, for example, your clients

proceeded according to the view that the

legislation is invalid and, therefore, did not

conform to the prohibition and did not make

available free time and, at that stage, the

Australian Broadcasting Tribunal sought to take

some kind of action by way of enforcement against

them.

Now that, it seems to me, would give rise to a

very different situation and then you would be

asking me to grant an injunction restraining the

tribunal from taking certain steps. As I say, I

could not see, on any view, that I would be

granting an injunction to restrain the institution

of a criminal prosecution. After all, if the

legislation is invalid you have got a good defence

to that. Admittedly, you would still sustain the

disadvantage of incurring legal costs in defending

Television 40 SIR M. BYERS, QC 14/1/91

a prosecution which you would not be able to recoup

from the government. But you see the difference?

SIR MAURICE:  Yes, I see the difference, Your Honour. These

cases, of course, always have their problems but,

Your Honour, one thing we would see that if

Your Honour is not minded to grant an injunction

then either we will come back again when the step

is taken, if that is the event, or that Your Honour

would see fit to expedite the hearing of the

substantive appeal.

HIS HONOUR:  Yes. I must say, Sir Maurice, it is a problem

and it is an added complication over and above the

Castlemaine Tooheys situation of what was in

contemplation in the judgment there that you may

have a situation in which an election or elections

will proceed in circumstances where, if your

arguments be right and subject to what Mr Rose says

it seems to me they are powerful arguments, there

is a risk that the electoral process might be

prejudiced. That is on the assumption your

arguments are well founded.

SIR MAURICE:	As Your Honour pleases, I do not think I can say anything further.
HIS HONOUR:	Yes, Mr Solicitor.
MR MASON:	Your Honour, I should have indicated at the

outset that on behalf of the Attorney-General for

New South Wales, I also appear as intervenor in the

first proceedings.

HIS HONOUR:  Yes, I had assumed that that was the position.

I did not ask Sir Maurice this question, and I

assume an affirmative answer will be given to it

because I notice that in your proceedings you have given some attention to it: have 78B notices been

served in relation to both proceedings?

SIR MAURICE: Yes, Your Honour.
MR MASON:	Yes, Your Honour.
HIS HONOUR:	Thank you.
MR MASON:	Your Honour, we adopt what Sir Maurice said as to

the grounds of challenge to the legislation. There

are perhaps three additional grounds that are

raised in our proceedings, one of which has been

covered in part.	I just wish to say one or two
additional matters.	The first is that we, in our

proceedings, make what perhaps is a more

fundamental attack on the legislation based upon

characterization.

Television 41 14/1/91

There is, in our submission, perhaps a

constitutional distinction with reference to this

legislation and its impact on federal elections and

territorial elections and its impact upon State

elections and State governments. And at least in

the latter situation it is our submission that the

Postal and Telegraphic power cannot sustain this

legislation which has no purpose connected with the

use of what is a finite resource, namely the air

waves, but can only be characterized, in our

submission, as an attempt to use the postal power

for the purpose of preventing certain forms of

political debate.

We will submit and we appreciate that this may

involve asking the Court to take what, in our

respectful submission, is a less formalistic

approach to the Postal and Telegraphic power than

perhaps has hitherto prevailed but one which is

quite in keeping with the Court's current approach,

at least as to constitutional guarantees.

We would be relying upon the statements by

three members of the Court, including Your Honour,

in Davis v the Commonwealth, 166 CLR 79, at

page 100 where what was, in that case, an

extraordinary intrusion into freedom of expression,

the right to use words such as "Sydney" and

"Melbourne" in 1988 led the Court to characterize

the legislation in such a way that it did not fall
within the head of federal power that it ostensibly

bore.

Your Honour, the second additional ground,

although my learned friend did certainly touch upon

this - should I say the first ground is referred to

in paragraph S(a) of our statement of claim.	The
argumentative parts are 5, 6 and.7 as regards

constitutional validity. S(b), nothing to add to

my learned friend.	S(c), nothing to add to what my
learned friend said. S(d), my learned friend

certainly touched upon that.

Could I simply draw attention to a couple of

additional matters. Section 95B of this Act, which

on its face deals with Commonwealth elections, but

in that little word "etc" there is a reference to

the fact that 95B closes down all debate in

connection with federal referenda. "Referendum" is

defined as including a referendum affecting the

Commonwealth Constitution and effectively a

referendum proposal to abolish the States could not

be the subject of any political comment by a State

government, as 95B stands.

Another aspect of the legislation is the

overlapping capacity of 95B, C and D because it is

Television 42 14/1/91

conceivable that an election period could be

occurring in the Commonwealth sphere and in the

State sphere concurrently. "Election" extends to

include local government elections also, according

to 95D(6) and we would be submitting that it just

is not really possible to say that during the

temporal period of a federal election neither a

State government nor an agency of the State

government, nor an individual - I am looking at

95D(2), (3) and (4) - can broadcast political

advertisements when a political advertisement

includes any material containing an implicit

reference to a political party.

Your Honour, 95A(l) has been referred to and

rather than mitigating the operation of the Act, in

one sense, it exacerbates it because 95A(l) allows
a broadcaster a totally unrestricted free kick

against government but the remaining provisions of

the Act prevent any response. And while my learned

friend, Sir Maurice, referred to genuine items of

news and current affairs the reality of the

situation would be that any matter involving

government would be a matter of current affairs and

the broadcaster or whoever was behind the

broadcaster would be quite free to say what it

thought in the course of its liberty under 95A(l)

but there would be no capacity to respond by the

State or its organs.

HIS HONOUR:  Yes, it certainly seems to give the broadcaster

the position of power and influence - more
importantly, influence, pre-eminent influence in

the course of elections.

MR MASON:  And 95A(3), in one sense, does - and I will be

coming to this in a slightly different context but

95A(3) gives charitable organizations, again,

pretty unlimited capacity to criticize or to
broadcast matters promoting the objects of their

organization. When one thinks that a charitable

organization could include one concerned with the

environment or any number of issues which are

highly political, those organizations are given

rights which are denied to government or government

agencies or to non-charitable groups.

Your Honour, the third additional ground of

constitutional attack is that referred to in

paragraph 7 of our statement of claim and it has a

couple of different aspects but, broadly speaking,

it is based on the Queensland Electricity case and
it is a claim that State government has been

singled out for adverse treatment, vis-a-vis

individuals because individuals have access to this

free time regime, in Division 3, and vis-a-vis

charitable organization because of the provisions

Television 43 14/1/91

of 95A(3), and, as I said earlier, there is a lot

within charity that can be political.

Your Honour, we have an additional ground for seeking an appropriate form of injunction and I

will return to the form shortly and it is based

upon the proposition that the Act does not, as a

matter of interpretation, apply to a by-election.

I should perhaps, at this stage, tender the formal

material which I seek to rely upon in support of

our application for an injunction. What I have is

a notice of motion and a very short affidavit,

copies of which have been given to my friend.

The notice of motion, because of the fact that

I am seeking leave to file it now, requires the leave of the Court under Order 51 rule 6 to shorten the time. The fact that we have not sought an

injunction in relation to the Act generally is

simply because that has been sought in the other proceedings and paragraphs 1 of the notice - - -

HIS HONOUR:  There is no objection to the grant of leave so

leave is granted.

MR MASON: If Your Honour pleases. Paragraph 1 is really

designed to latch upon the constructional argument

which I am about to come to. Your Honour, the

affidavit of Peter Lionel Anet, sworn 14 January,

which I have handed up has two documents exhibited;

one is the writ for The Entrance by-election which,

as Your Honour would know, closes with polling day

this coming Saturday. The second is a direction

from the Australian Broadcasting Tribunal who is

added as a second defendant in the State's

proceedings, with considerable promptitude - to put

it neutrally. A letter was written on 3 January

1992 in effect directing the radio licensees that

could otherwise broadcast electoral material for

the by-election not to do so. That is the letter

which is exhibited. It is confined explicitly to	the by-election and it purports to set out the
operation of the Act and the claim that it applies.

There is a reference to section 116 of the Act

to which I will come later which is an existing

provision which, in certain circumstances,

prohibits election advertising during the last
three days of a polling period but, for reasons I

will come to, does not have any application to this

present by-election.

Your Honour, just before I seek to develop

shortly the constructional argument, may I direct

you to a couple of sections of the Broadcasting Act

just to show the role of the Broadcasting Tribunal

and how this letter operates as a significant

Television 44 14/1/91

intrusion into the political process and a real

threat to licensees.

Under the Broadcasting Act, section 16{l){a)

and 88{2){c), the Tribunal can suspend licences for

breach of conditions. The 1991 Act, if I may take

you to page 27 of the print, contains in section 33

of that Act - I am referring to the Political

Broadcasts and Political Disclosures Act 1991, an amendment to the Radio Communications Act 1983, and

it provides that:

Sections 95B, 95C, 95D, 95E and 95Q of the

Broadcasting Act 1942 are to be treated as

conditions of a transmitter licence -

In the rush in which this matter has been prepared

because of the vacation, I have not yet checked and

I assume I will be corrected if I am wrong but my

understanding is that a transmitter licence

includes a radio and a television licence. So, by

this means, compliance with the Act is made a

licence condition.

In any event, the Broadcasting Tribunal may

suspend a licence or cancel a licence because the

person is not a fit and proper person. That is

section 88(2){c). Sorry, I think it is (2)(b).

Anyway, 88(2). One would assume that breach of the

Act itself - yes, 88(2)(b), if:

the Tribunal is satisfied that the licensee:

(i) is no longer a fit and proper person -

one could assume that a breach of the Act might be

a basis for such satisfaction.

The 1991 Act also inserts a new section 95U

into the Broadcasting Act and that is referred to

on page 16 of the print. That empowers the

Tribunal to seek order from the Federal Court

preventing contravention of the key sections.

It may be of some importance when one comes to

the form or the power of the Court to grant

injunctive relief to note that that would be a
civil application and not a criminal prosecution in

reference to the Castlemaine Tooheys principle.

Your Honour, I have been reminded that

section 129 of the Broadcasting Act in its original

form - - -

HIS HONOUR:  But that is not really a problem, is it,

Mr Solicitor, because presumably in entertaining an

application under section 95U, the Federal Court

Television 45 14/1/92

would have regard to the considerations that have

arisen in the course of argument here.

MR MASON:	Yes.
HIS HONOUR:	So that, one might well contemplate that the Federal Court would refuse relief if the Tribunal
sought it because contravention had taken place pending a determination by this Court of the
substantial questions involved.

MR MASON:  Yes. The real question, and in one sense this

cuts a little bit both ways, is the very impact of

the Tribunal issuing the directive that it did in

the circumstances that it has, and whether this

Court can frame relief so as to nullify the impact
of that directive so as to allow, as it were, the

market to form its own decision as to whether or

not to accept political advertising, and I will

come back to that, if I may.

HIS HONOUR:  Yes. I would have thought, myself, that the

market is bound to form its own decision and that
it would not be unduly influenced by what the

Tribunal has communicated to licensees in the light of these pending proceedings.

MR MASON:  Given the Tribunal's extensive powers, obviously

it has a chilling effect, one could say.

HIS HONOUR:  Yes, but the exercise of its powers is always

subject to supervision by the courts.

MR MASON:  Yes. I was going to give Your Honour a reference

to 129 which, in fact, is the source of the - this

is in the Broadcasting Act in its original form

which provides that:

Every licence granted ..... shall be subject to

the provisions of this Act •.... and those

provisions shall be deemed to be incorporated in the licence as terms and conditions of the

licence.

So that would be the means whereby breach of 950

could ultimately be the basis for cancellation

proceedings.

Turning then to the constructional argument,

may I take you to 950 first of all because that is

the provision that deals with advertisements in

State elections. Section 950(5) makes fairly plain

that, at least when drafted, the intention was that

the prohibition of 950 would extend to by-elections

because it provides that:

Television 46 14/1/92

Where the election concerned is a by-election,

this section is -

read down, in effect, so that the prohibition is

confined to the relevant service area.

"Election", Your Honour,_is defined on page 3

of the print for, the purposes of the Broadcasting

Act generally, to include "a by-election". Your

Honour, it would appear that 95D(S) was drafted in

that form at a time when the Political Broadcasts

and Political Disclosures legislation had no

Division 3 at all - and I will shortly tender a

document to make good that proposition. But,

basically, what happened was this, Your Honour, the

legislation, in its original form, had no

Divisions 3 or 4. The matter was referred to a

committee of the Senate whose report is one of the

supplementary materials upon which the Commonwealth

will rely. It was on 14 August 1991 that the

Senate appointed a select committee, and on

28 November 1991 that the committee's report was

presented to the Senate, according to Hansard of

that date, page 3539. There is only one paragraph

of that report I wish to refer Your Honour to.

It was obviously thought that by-elections

were a matter of little interest in the general

political process, and perhaps that is true as a

general proposition, but in the Senate's report,

paragraph 4.12.6, it is stated that:

The Committee notes that the ABC has not in

the past provided free time for by-elections

and that by-election campaigns do not normally

involve television and radio advertising.

It is presumably upon that supposition that when

the provision was made dealing with the granting of

free time, no provision was made for the grant of

free time with respect to by-elections. That

appears from section 95H which is the power of the

Tribunal to grant free time:

The Tribunal must, within the prescribed period in relation to an election, grant a

period of free time to each political party.

But, 95H(4) defines election as meaning:

an election (other than a by-election) -

page 12 of the print, line 25. In this part of the

Act that was later enacted, later in terms of

legislative history, free time but not for

by-elections. And 95J provides that:

Television 47 14/1/92

This Part does not apply in relation to an

election to the Parliament of the Commonwealth

or of a State ..... until regulations are made

for the purposes of section 95H that relate to

that election.

So, 95J is saying, in our submission, that this

Part does not apply at all to by-elections. In one

sense, you get that already from 95H. It is not

just saying this Division does not apply, it is
this Part, and that is referring to Part IIID,

Political Broadcasts.

So, one has the situation that it is another

one of these Commonwealth drafting provisions

where, in one sense, there are contradicting

provisions. Here, the contradiction is understood because of its drafting history, but in any event,

in our submission, 95J is quite clear and given the

impact upon freedom of speech, one would construe

it narrowly. The result is that the directed

prevention of political advertising in relation to

The Entrance by-election was an invalid invocation

of Part IIID.

Your Honour, if that argument is accepted, the

Court is not involved with, as it were, the

constitutional overtones that are involved in the

Castlemaine Toohey decision and the principles

there discussed about irreparable injury and

balance of convenience. One has a simple false

invocation of a power that does not exist.

Your Honour, to show that section 95J was

enacted late in the piece, I would seek to tender a

portion of the House of Representatives Hansard

which shows the amendments corning back from the

Senate which inserted Division III.

HIS HONOUR:  That will be exhibit A to your proceeding,

Mr Solicitor.

MR MASON: If Your Honour pleases.

EXHIBIT Exhibit A ..... Hansard

MR MASON:  The Act had numbering which differs from its

present numbering and it was really only when

finally adopted that it found its present form of

numbering, but the relevant section that is 95J

is 95DE - that is on page 3812 of the print. One

finds the motion by the government representative,

Mr Beazley, that the amendments be adopted in block

at 3818 and 3819, and that motion was carried

at 3821.

Television 48 14/1/92

Your Honour, at this stage one can only partly

speculate and partly leave for another day the question of the impact of the intrusion by the Broadcasting Tribunal into the by-election process.

I can tell Your Honour that there is, on my

reading, nothing in the State legislation that

addresses what is to happen to a State election

that is impeded by Commonwealth intrusion which

turns out to be invalid.

Your Honour, I did refer to section 116 of the

Broadcasting Act, lest it be put against us that at

this late stage in the election process it would be inappropriate to grant whatever relief is otherwise suitable. Section 116 of the Broadcasting Act

provides in subsection (4) - I do not know what
page it is in Your Honour's compilation - it is

page 273 of the publicly available print.

HIS HONOUR:	It is a much later page in - -
MR MASON:	Page 303.

( 4 )	Where:
(a)	the writ for an election has been issued;
and

(b) the service area of a licence overlaps

the area of Australia to which the election

relates;

the Tribunal shall, by notice in writing
served on the licensee not later than 14 days

before the commencement of the period that is

the relevant period •.•.. require the licensee

to refrain from broadcasting election

advertisements.

And the prohibition is in 116(4A):

A licensee upon which a notice has been

served •••.. shall not broadcast.

The relevant period is defined at the end of that

section to include the period commencing:

at the expiration of the Wednesday next
preceding the polling day.

So on the present by-election, polling day being the 18th, tomorrow, Wednesday, is the 15th.

The letter that is exhibited to Mr Anet's

affidavit was sent on 3 January, less than the 14-

day period, so there has been no direction

triggering off section 116, therefore, unless the

general provisions of 95D apply - for reasons

already given they do not, in our submission - the

Television 49 14/1/92

question before the Court is, therefore, whether

appropriate relief should not be granted at this

stage allowing the freedom of the electoral process

to operate for the critical last few days.

Your Honour, in Castlemaine Tooheys, spoke

about irreparable injury as being a circumstance in
which, in an appropriate case, the Court would

grant an injunction to, in effect, restrain the

giving effect of legislation that was under

challenge. We would submit that when one is

dealing with an interference with freedom of speech

in an election where it will be impossible at the

end of the day to know what the impact of the

burking of that freedom of speech will be upon the

electoral process and its validity, then there is a

risk of irreparable injury if appropriate relief is

not granted. Often, of course, in a challenge to

constitutional validity the Court's response can be

that if the law turns out to be invalid, well you

are, in effect, relieved by the Court's declaration

when granted and there could be no further
proceedings. In the present context, in our

submission, if some appropriate form of injunctive

relief can be moulded so as to make it plain that

in the view of the Court there is a real issue to

be tried on constitutional validity, or a strong,

we would say, impregnable position with respect to

the constructional argument, then some formal

injunction should be granted so as to, as it were,

indicate that that is the position which has been

reached as a result of today's hearing.

HIS HONOUR:  Yes, well you are really looking for an

injunction as a signal that will, in a sense,

counterbalance the communication that has been sent

by the Tribunal.

MR MASON:	Yes.
HIS HONOUR: That is, essentially, what you want an

injunction for.

MR MASON:  And if that can be done in such a way as not to

fall foul of the Court's concern about, "We don't

want to grant an injunction to stop obeying the

law", well that is what I am seeking to achieve,

and the form which occurs to me in the light of

what passed between Your Honour and Sir Maurice

might be an injunction restraining the second

defendant from directing any licensee not to

broadcast during a by-election.

Your Honour, the only other thing I would wish

to remind Your Honour about is the fact that there

is a summons for directions that has also been

filed. We would seek expedition - - -

Television 50 14/1/92

HIS HONOUR:	Yes, I have not forgotten that.
MR MASON:	- - - and we would seek to have these proceedings heard concurrently with those commenced by my
learned friend Sir Maurice's clients. The form of
directions, obviously, would perhaps depend upon
whether Your Honour was going to grant expedition
and how soon, but on the assumption that there were
some early dates, some timetable that would, as it
were, one assumes the Commonwealth will be
demurring and, subject to that, directing the
Commonwealth to set down the demurrer quickly. I
understand it has been the practice in recent times for directions as to written submissions, and if
Your Honour thought that was an appropriate course,
we certainly - - -
HIS HONOUR:	Yes, well certainly I would be directing

comprehensive written submissions in both cases,

Mr Solicitor. One question I might ask you, and I

shall also ask Sir Maurice, and in due course,

Mr Rose, is how long do you estimate the argument

on the substantial questions would take?

MR MASON:  Some of the ground has been covered in

Nationwide, but in one sense this is a better

vehicle for looking at the question of access to

political institutions.

HIS HONOUR: This is, yes, certainly.

MR MASON: This one would appear to be.

HIS HONOUR:  Yes.

MR MASON:  I would estimate, perhaps, two days. I would

anticipate - I am not sure about intervention from

other States. One would expect, normally, there

would be intervention. Whether the nature of the

issue might restrict the amount of intervention, I

do not know.

HIS HONOUR: There is no intervention from Tasmania, for

example, even in these proceedings.

MR MASON:	Yes.
HIS HONOUR:	Perhaps the bar is in favour of sitting

members, such as •.... Sir Maurice, do you agree with

the estimate of two days?

SIR MAURICE:  Yes, Your Honour, and, of course, there are

some American authorities to remind Your Honours

of, in any event, and I have an idea there are some

Indian which might be fairly remote.

HIS HONOUR:  You have an idea?

Television 51 SIR M. BYERS, QC 14/1/92

SIR MAURICE:  There is some Indian case law dealing with

this. I notice Your Honour have taken to referring

to remote legal systems, so - but, two days,

Your Honour.

HIS HONOUR:	What do you mean by remote Indian cases?
SIR MAURICE:	I did not say - I said "remote legal systems",

Your Honour. But two days, I should think, would

be sufficient, Your Honour.

HIS HONOUR:  Yes, thank you, Sir Maurice. Thank you,

Mr Solicitor. Yes, Mr Rose.

MR ROSE:  If Your Honour pleases, we are here to respond to

applications for injunctions in the terms of
injunctions restraining the Commonwealth from
enforcing, or causing the Act to be enforced, and

we take "enforcement" to refer not to general

implementation measures but to enforcement measures

in the sense of whatever can be done to apply

sanctions, or the like, for breach of the

legislation. The only actions available to the

Commonwealth there would seem to be the

Commonwealth Attorney-General's power to direct the

Director of Public Prosecutions to institute

proceedings. The other enforcement actions under

in terms of section 95U, and the action that the Broadcasting Tribunal may seek to take in due course on the basis of alleged breaches of licence conditions.

the legislation are matters for the Broadcasting orders

HIS HONOUR: Is the Tribunal the Commonwealth?

MR ROSE:  We would submit not, Your Honour. It is not

subject to any direction by the Executive

Government or any agent of the Executive

Government.

any form of direction to the Tribunal is, as I The only power of the minister to give

understand, the power to direct the Tribunal to

hold inquiries into particular matters under

section 18(2) of the Broadcasting Act. Apart from

that, there is no power to direct the Tribunal as

to what it should or should not do by way of any

kind of enforcement action. As Your Honour has

commented to my learned friends, the notion of an

injunction to restrain the institution of

prosecutions is not an appropriate notion.

The form of relief, as I have said, is sought only against the Commonwealth so far as the

broadcasters in the first matter are concerned. My

learned friend the Solicitor-General for New South

Wales suggested in closing that he would envisage

an injunction in the terms of restraining the

Television 52 14/1/92

Broadcasting Tribunal from directing licensees not to broadcast. In that regard, I would submit that

any direction from the Broadcasting Tribunal not to

broadcast is completely futile. The prohibitions

on broadcasting would stem from the Act itself if

the Act is valid.

HIS HONOURt Yes, all the Tribunal is doing is, in a sense,

calling attention to what the requirements of the

statute are.

MR ROSE:  As conceived by the Broadcasting Tribunal which

may or may not be correct in terms of what this

Court ultimately decides.

HIS HONOUR:  Yes.

MR ROSE: So, in my submission, the form of injunction

sought in these proceedings is simply not one that

the Court should grant. I think it is probably

unnecessary to refer Your Honour to the remarks

about prosecutions that Your Honour made in

Castlemaine Toohey - - -

HIS HONOUR:	No, there is no occasion to do that, Mr Rose.
MR ROSE: Thank you.	If I might, Your Honour, go to

Castlemaine Tooheys as a starting point for the three elements which need to be satisfied before an

interlocutory injunction can be granted. First,

that there is a serious question to be tried, and I

take it that much of my learned friend

Sir Maurice Byers canvassing of the constitutional

issues was directed to that purpose. On that first

limb, Your Honour, I would submit that none of

those who sat through the two and a half days

hearing in Nationwide News v Wills would, I think,

be able to stand here and submit that there is no

serious issue in relation to section 92 and the

others.

HIS HONOUR:  No. Well, when you say "the others", what, the other issues that were raised in Nationwide?

MR ROSE: In Nationwide, yes, Your Honour.

HIS HONOUR:  Yes, because I think there has been some

elaboration of arguments today that go beyond what

was put to the Court in Nationwide.

MR ROSE: With respect, I agree, Your Honour. To the extent

that this case raises the same issues that were

canvassed in Nationwide, we would - - -

HIS HONOUR: Well, there can be no doubt, but that there are

serious questions to be tried.

Television 53 14/1/92

MR ROSE:	We would not, for a moment, seek to dispute that.
It, therefore, becomes unnecessary, in my

submission, for us to indicate what attitude we

would have as to the seriousness of the other

constitutional issues.

HIS HONOUR:  I do not agree with you there, Mr Rose. The

reason for that is that, after all, I am concerned

with the future disposition of this case and I have

in mind the New South Wales application for
directions, apart from anything else and,

therefore, I want to, as best I can, be in a

position to define what the issues are for a

substantial hearing before the Full Court.

MR ROSE:  I am happy to proceed and indicate briefly

what - - -

HIS HONOUR:  So, on that footing, can you assist me in relation to the other issues?

MR ROSE: Indeed, I hope I can, Your Honour. I might take

first the issue of acquisition of property.

HIS HONOUR:	Yes.
MR ROSE:	On that, Your Honour, I would wish to refer

Your Honour to section 129 of the Broadcasting Act.

I do not think it was referred to by my learned

friends.

HIS HONOUR:  It was referred to by the Solicitor for New

'outh Wales during the course of his submissions.

MR ROSE:  The significance of section 129 is:

Every licence granted -

under this Act is -

deemed to have been granted ..... subject to the

provisions of this Act and the regulations so

far as they are applicable to the licence, and

those provisions shall be deemed to be

incorporated in the licence as terms and

conditions of the licence.

And our submission will be that that means that

every licence is subject to the provisions of the

Act as enforced from time to time, the Acts

Interpretation Act - - -

HIS HONOUR:  And is, therefore, subject to such potential

detriment as may be flow from regulations

promulgated from time to time.

Television 54 14/1/92

MR ROSE:  Indeed, Your Honour, so that any amendments to the

requirements that may be made of licensees, for

example, if one looks at the existing provisions,

the Act as it stood before this 1991 Act - we see in section 100, for example, that - it deludes me for the moment, I am sorry, Your Honour, but there

is a section which confers a limited power to

require licensees to broadcast matters that are in

the public interest - in the national interest.
Section 104.

So, every licence being subject to the provisions of the Act as it stands from time to

time means that, assuming, and we do no concede it,

the rights to broadcast are rights of property,

what the licensee gets is a right of property

qualified from its inception so as to make it

subject to whatever requirements are imposed by

amendments from time to time. Again, on the

assumption that there is a right of property

involved, if we take, for example, a lease by the

Commonwealth that from its inception is made

subject to an obligation by the lessee to make part

of the property available for use by somebody upon

the direction of a minister, what the lessee has

got from the outset is a property right qualified

in that way, and the exercise of the power of the

minister there to require the lessee to make the

land, for example, available to someone else cannot

be called an acquisition of property.

HIS HONOUR:	Mr Rose, I will adjourn now until 2.15, but before adjourning can I ask you whether you see any
difficulty in the Commonwealth demurring to the
statements of claim in this case or whether,
alternatively, you think it may be necessary to
agree upon some statement of facts.
MR ROSE:	Our latest assessment, Your Honour, is that we

would probably demur but I am not in a position to

we have explored the issues a little further to say categorically that we will not see a need when introduce - - -

HIS HONOUR:  How long do you think it will take you to

define your attitude?

MR ROSE:  A matter of a couple of days, I would have

thought, Your Honour.

HIS HONOUR:	I see.
MR ROSE:	We might be a little troubled by the suggestion of

defence or demurrer or whatever in 14 days. It may

be a little longer than that that we would - - -

Television 55 14/1/92

HIS HONOUR:  Would it really present such a difficulty in

the light of what - - -?

MR ROSE:  No, I think if pressed, Your Honour, I would say

that we would not - - -

HIS HONOUR:  Yes, I would have thought so. After all, as I

have said to your predecessor - not so much your

predecessor - Dr Griffiths, you have the massive,

unlimited resources of the Commonwealth behind you.

MR ROSE:  A common misconception, if I may comment.

AT 12.49 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.11 PM:

HIS HONOUR:  Yes, Mr Rose.

MR ROSE: If Your Honour pleases, before the adjournment I

was sketching the argument that we would propose to

put in relation to section Sl(xxxi). I had

explained why we would argue that there is no

acquisition. That argument was based on

section 129 of the Broadcasting Act. I also

indicated, I think, that we would be arguing that

there is no right of property here.

We would also be arguing that even if there is

an acquisition of property in some ordinary sense

of that expression, it would not be a form of

acquisition of property to which section Sl(xxxi)

of the Constitution is directed.	We would be
invoking arguments based on such cases as

Attorney-General v Schmidt.

Turning now to the other arguments put against

us, I will not be dealing of course with the

arguments so far as they were put in Nationwide

News v Wills, but moving on from the implied
freedom argued for in that case to the more general
implied freedom that my learned friend,

Sir Maurice Byers argued for, an implied freedom of communication based simply on citizenship, to communicate on any topic, our argument would be

there, first, that there is no such implied general

freedom.

Secondly, if there is any such implied

freedom, it is by no means absolute, subject to

exceptions. Some were mentioned this morning in

Television 56 14/1/92

relation to such things as sedition, and I think

blasphemy was mentioned. The room for permissible

regulation in that area would be very much broader.

For example, we would be arguing that the power

under section Sl(v) in relation to broadcasting

would enable the Commonwealth to prevent remarks,

for example, by way of racist propaganda in the

course of an election campaign, sexist propaganda.

We would say that the category of permissible

regulation also extends to laws of the kind in

question here. Plainly there is much room for

debate as to whether any law of this kind should

have been passed at all to address the problems

that the Parliament saw as involved in political

advertising. The legislation was designed to

address certain social problems that the Parliament

perceived, and the mischiefs at which the

legislation was directed are canvassed in the

second reading speech. I think Your Honour has

copies of the extrinsic materials to which we

propose to refer. There is the second reading

speech in which reference was made to the evils of

the risks of corruption and undue influence. As it was put in one statement, "the corruptive influence of the corporate dollar on the electoral process".

There is also the conceptually separate factor of the unfairness that results when access - - -

HIS HONOUR:  What is that? I do not quite understand what

that is, Mr Rose, "the corruptive influence of the

corporate dollar on the electoral process".

MR ROSE:  The concept is that since political parties and

candidates require such enormous amounts of money

to run TV campaigns, that in order to attract the

donations required to meet those - - -

HIS HONOUR:  They have got to succumb to temptation.

MR ROSE:  Succumb to temptation. But it is often put not in

the sense of outright corruption, but rather of the

insidious and pervasive influence that can come

from - - -

HIS HONOUR:  One needs protection against one's own

susceptibility.

MR ROSE: Often that is so, Your Honour. Regardless of the

way one might view these things, the fact remains

that these were the evils that the Parliament was

addressing. I have indicated the second reading

speech. There are other materials in which those

factors were discussed. The first is the Senate

Committee report referred to in the second reading

speech. It is entitled "Who pays the piper calls

the tune". That is Report No 4 of the Senate

Television 57 14/1/92

Standing Committee on electoral matters which

examined the 1987 federal election and the 1988

referendum campaigns.

In that report, these problems that were

perceived with the problem of financing enormously

expensive TV advertising and political campaigns

were discussed at some length. Reference has

already been made this morning to a further Senate

Committee report. That is the report of the Senate

Select Committee on political broadcasts and

political disclosures. There is a Select Committee

set up to examine this very Bill. The report was

dated November 1991. In that report, too, these

perceived social evils of the kind I have been

mentioning are dealt with there. I can give

Your Honour the reference to the particular pages

of that report, especially page 5, chapter 3, and

pages 33 to 37.

There is also, if Your Honour pleases, a

dissenting report by a Democrat senator, and the

Bill was passed in the Senate with the combination

of the government senators and the Democrats, so the dissenting report is of some significance in explaining the Parliamentary purposes in passing

this legislation. The concern expressed in that

dissenting report was that whatever might be the

theoretical desirability of TV political

advertising, the fact remains, so it was thought,

that such advertising does not seek to inform but

simply aims at the lowest common denominator:

It does little to address the issues, and in

fact debases the political process.

Your Honour will find that comment at page 87. We

would be relying upon those - I have picked out the

main ones, but there is other material to similar

effect - that this legislation is in fact within	the permissible area of reasonable regulation of
the forms of communication that can take place in
an election campaign.

HIS HONOUR:	Just interrupting you there, in so far as you would be relying on materials of that kind, does
your reliance on such documentary material extend
beyond the reports that you have just mentioned? I
was just thinking in terms of the hearing before
the Full Court.

MR ROSE: Yes, I think at this stage we only have the three,

and there is the explanatory memorandum.

HIS HONOUR:  All those materials can be conveniently handed up to the Full Court.

Television	58	14/1/92
MR ROSE:	Yes.	I do not at this stage envisage much, if

anything, beyond that, but we would make sure of

course that the Court was supplied with copies of

anything on which we did have to rely.

Turning now to the arguments that are put

against the legislation in relation to the aspect

of the legislation in discriminating against the

States, affecting the State in its processes, basically this appears to be a line of argument

supported by such cases as the Queensland

Electricity Commission case.

In relation to assertions that the legislation

is discriminatory, we will be arguing that bans on
broadcasting are not discriminatory at all.
Section 75D prohibits broadcasters from

broadcasting political advertisements, whoever is

the advertiser, whether the advertiser is the

Commonwealth or a Territory or a State or anyone

else, including the broadcaster itself.

It is true that there is an exception made for

political parties and candidates in that they get

free time, whereas governments - and here we are

talking about State governments - do not get free
time. But, as Your Honour yourself commented this

morning, it would be odd to provide free time to

both governments and government parties. So

although there is a difference in the sense that

the government does not get free time whereas

parties and individual candidates do, it is a

difference that does not constitute discrimination

because it is based on a relevant and sufficient

difference in the circumstances.

So far as the argument that is put to the

effect that even if it is a non-discriminatory law,

even if it is a general law, nevertheless it is

invalid on the basis that it impairs the State's

capacity to function, our argument there would be

along the lines that I indicated before in relation

to the general implied freedom of communication.

It would be to the effect that it must be noticed

first that the legislation does not affect any of

the State's legal machinery for conducting

elections.

There would be a problem if it prevented the

use of postal services or telephones, for example,

by State returning officers, or if it prevented

State notification through the post of polling

arrangements.	The legislation does not do anything
of that kind at all.	The definition of exempt

matter, for example, expressly excepts action taken

by States to notify people of the State electoral

administration and requirements.

Television 14/1/92

Even if Commonwealth legislation did intrude

into the State legislative machinery concerning elections, we will be putting the argument that

even so, it would still not necessarily be invalid.

R v Brisbane upheld Commonwealth legislation regulating State

There is a case in this Court in 1920,

elections on the ground that it was necessary to

avoid State and Commonwealth elections being held

on the same day.

So although it is in a very limited area, it

does show that there is no absolute rule, no

absolute principle, that even the State legislative

machinery on elections is immune from some forms of

Commonwealth legislation. We will be commencing

from that point and developing the argument that

the forms of Commonwealth legislation that could be
enacted do not stop with that kind of prohibition,

but would extend, for example, in extreme

circumstances, to Commonwealth laws on defence or

quarantine that impose curfews and might prevent

people attending State polling booths.

We would also be contending that, for example,

the broadcasting power in section Sl(v) and the

external affairs power, too, in relation to our
international obligations would enable the

Commonwealth to enact legislation preventing racist advertisements, racist propaganda, by - I hasten to

add that I do not conceive that these are anything

but hypothetical examples, but simply used to test

the principle - racist advertisements by State

governments directed at candidates of

non-government parties, attacks against candidates

on religious grounds, for example, not to mention
Commonwealth laws directed at preventing bribery of

candidates by trading and financial corporations.

That does not appear in all jurisdictions to be an

we will be arguing that the legislation here is	entirely hypothetical example. The question ultimately is one of degree, and
within those limits. After all, it allows
communication by way of news and current affairs and comment. There must be enormous scope there
for parties and candidates and State governments to
arrange press conferences and other such things which can be reported in the ordinary way without
any inhibition under this legislation whatsoever. It does not prevent advertising in newspapers, it
does not prevent the very widespread practices of
direct canvassing through letter-box drops, either
through the postal service or otherwise.

So that will be the general line of defence

against the suggestion that the legislation is

Television 60 14/1/92

invalid, because it intrudes into the State's

capacity to conduct electoral processes.	I am
saying there is that room.	It will not be

necessary to consider whether beyond that limited

scope there is a Constitutional problem. We simply

say that legislation which goes no further than

this legislation goes is within the permissible

limits.

I think, Your Honour, I have sketched there

the general outline of the arguments that we would

be putting. They are the Constitutional arguments.

It remains to deal with the New South Wales

argument that there is an interpretation problem,

the argument being that because of section 95J,
none of the prohibitions in this Part IIID applies

to a by-election, and so the current by-election

for The Entrance is not subject to any controls

under this Act.

The argument, as I understand it, is that

since regulations cannot be made under 95H in

relation to a by-election, therefore it follows from the wording of 95J that the part therefore

does not apply in relation to any election, and

election includes by-election. Reliance is placed,

too, on the legislative history, as I recall it,

but with respect, Your Honour, it seems that the

legislation is in fact clear in its terms. I will

come to that in a moment, but I submit that being

clear in its terms as I will show, it is not
permissible to refer to the extrinsic materials by

way of the legislative history, and so on.

I just refer Your Honour in that connection to

the case of re Bolton, ex parte Beane, (1987) 162

CLR 514. Coming back now to the language of the

legislation, it is clear, in my submission,

starting with 95B, subsection (5) says:

Where the election concerned is a by-election.

95C(6):

Where the election concerned is a by-election.

950(5):

Where the election concerned is a by-election.

Of course, it is 95D that relates specifically to

the New South Wales situation. Although of course

it hardly adds to those express references to

by-elections, the basic definition of election on

page 3 of the Bill:

Election includes a by-election.

Television 61 14/1/92

So, in my submission, it could not seriously be

contended that the prohibitions in Division 2 do not include by-elections. That really brings us then to the problem of the wording of 95J:

This part does not apply in relation to an

election -

read that as including by-election -

to the Parliament of the Commonwealth or a

State ..... until regulations are made for the

purposes of 95H that relate to that election.

If regs can only be made under 95H or cannot be

made in relation to a by-election, does it follow

that none of the Part IIID can apply to a
by-election? It flies in the face of the express
provisions of sections 950 et cetera that I have

mentioned. In my submission, the clear meaning of

95J is this. What it means is that this part does

not apply in relation to an election et cetera in

relation to which regulations can be made under 95H

unless those regulations have been made in relation

to the election.

Any other interpretation would, in our

submission, be totally at odds with the clear

language of Division 2 of the part. I think with

that submission, if Your Honour pleases, I have
completed the sketch of the arguments that we would
be putting. As I submitted this morning, we do see

a serious issue to be tried in so far as those

issues were the same as those in Nationwide News.

That would take me to the second element in

relation to the granting of an injunction. That

takes me back to Castlemaine Tooheys. The second

element is that the applicant will suffer

irreparable injury for which damages will not be an

adequate compensation unless an injunction is
granted.	So we are really looking to see if there

is any conduct or, to put it this way, that if

there is anything that the plaintiffs would lose

that could be averted by the grant of an

injunction.

Here, if Your Honour pleases, there is no

evidence before Your Honour in the first matter as

to whether any of the plaintiffs would suffer any

financial losses at all. My learned friend,

Sir Maurice Byers, referred in one respect to the

affidavit that has been filed but did not read the

other paragraphs.	As I understand it, there is
therefore no evidence on the matter.	Even if one
might infer on some general - - -

Television 62 14/1/92

HIS HONOUR:	But it does stand to reason that they would have derived revenue or would derive revenue if
they were not forced to comply with the
prohibitions.
MR ROSE:	It is an inference which would be made without any

evidence on the matter. It does not necessarily

follow - - -

HIS HONOUR: It is an inescapable inference, is it not?

After all, when you look at the very evil that you

say that the legislature was concerned to stop,

presumably it is because there are very

considerable funds available for procuring paid

advertisements on the electronic media.

MR ROSE:  If Your Honour pleases, it does not follow that

any one of these particular plaintiffs would

necessarily lose any income as a result of the ban

in these corning elections. They may have earned

income last time, but it does not follow that the

political parties will see fit to place their

advertisements with any of those particular

plaintiffs in these elections or that if they -

HIS HONOUR:  Take the plaintiff, TCN; its service area

covers the area of the by-election.

MR ROSE:	If one is prepared, with respect, Your Honour, to infer that the political advertisements would have
been placed with them, there is a further hurdle
that needs to be surmounted, it seems to me. That
is, that although, as we discussed this morning,
the legal limits on the proportion of advertising
time spent by broadcasters, although the legal
limits were removed in 1987, one would be entitled, indeed I think reasonably have to infer, that there are practical and commercial limits to the
proportion of time that licensees can devote to
advertisements of any kind.

If those limits have been reached, and for all

we know they have been reached, then any political

advertisements may well have been lodged at the

expense of alternative non-political advertising.

In other words, even if does make the inference on the general grounds that Your Honour indicated,

that some of these plaintiffs would get some

political advertising if it were permitted, it is

still another step to say that none of that, or

that all of it, would have been in substitution for

commercial advertising that they would have already
run if they were - up to the practical and

commercial limits.

HIS HONOUR:  You may be entitled to put the argument on the

evidence as it stands. I must say it does not

Television 63 14/1/92

strike me as a very realistic proposition, Mr Rose.

For example, I would not have thought that

profitability is such these days that television

and radio broadcasters are forced to freeze out

those who seek to have paid advertisements

transmitted over radio and television.

MR ROSE:  I am resting on the evidence that is before

Your Honour in the affidavits. The affidavits seem

rather more eloquent for what they do not say than

for what they do say.

HIS HONOUR:	The affidavits certainly are rather sparse.
MR ROSE:	One would have expected, if Your Honour pleases,

that if there were a real expectation of loss as a

result of this prohibition, there would have been

nothing easier than to have deposed to that fact.

But since all that is said is that certain amounts were earned in elections two years ago with nothing

whatsoever to bridge the gap between that and the

conclusion that this prohibition would result in

financial loss to them, I would submit that that

inference should not be drawn from the material

that is before the Court.

Even if there is an inference properly made

that any of these plaintiffs would suffer financial

loss as a result of the ban, we move to the third

element relevant to the grant of an injunction, and

that is the balance of convenience. If I could go

back again to Castlemaine Tooheys and also

Your Honour's judgment in Richardson v the Forestry

Commission, where Your Honour has pointed out that

where there is an application to restrain the

enforcement of a legislative scheme designed to

protect the public interest and there are no

compelling grounds to restrain enforcement of the

scheme, that an injunction should be refused.

I have already outlined the grounds on which

the Parliament perceived this legislation to be in
the public interest. In terms of an injunction to

restrain anything by way of enforcement of that

scheme, it would require an extremely compelling

case to justify an injunction. In my submission,
that case has not been made. The Court should, in

my submission, defer to the legislation unless and

until it is held invalid.

Your Honour also, in Castlemaine Tooheys, said

that in the case where an application is made to

restrain the enforcement of a legislative scheme,

it may be necessary for the plaintiffs to show not

just that there is a serious issue to be tried, but

must show the probability and perhaps a distinct

probability of success. My submission here would

Television 64 14/1/92

be that although the plaintiffs have outlined their

arguments and although, on at least some of them,

we would agree that there is a serious issue to be

tried, what has been put before Your Honour falls

far short of showing the probability of success.

I referred this morning to the problems

arising from the form of the relief sought, an

injunction to restrain enforcement. In Castlemaine

Tooheys, Your Honour did mention one factor: the

possible misleading effect on other people of

granting an injunction to restrain enforcement,

because it might give the false impression that

people would be immune from prosecution if and when

the legislation was upheld.

The same could be said about an injunction in relation to the Broadcasting Tribunal in the terms

sought by my friend, the Solicitor for New South

Wales. If Your Honour pleases, that concludes my

submissions.

HIS HONOUR: 

Mr Rose, are there any cases in which the Court has granted injunctions to restrain the government

or a statutory authority from enforcing a statute?

MR ROSE: 

Not that I am aware of, Your Honour.

HIS HONOUR: 

I am putting to one side cases in which a Court

has restrained a step taken by a statutory
authority or the repository of a power to take some
specific action.

MR ROSE: 

Such as seizing grain?

HIS HONOUR: 

Yes.

MR ROSE: 

Yes. As Your Honour noted in Castlemaine Tooheys

and in other cases, yes, certainly, there are cases

where injunctions have been granted to that effect,

but not injunctions to restrain what here are

simply prohibitions, apart from the obligation to

provide free time, but to restrain the enforcement

of the Act where it is simply a matter of a

prohibition that is either invalid or valid.

HIS HONOUR:  Yes, the statutory provision operates if it is

valid. If it is invalid, it does not operate. But
there is nothing the Court can do, as it seems to

me, in relation to the operation of the statute,

assuming it to have an operation.

MR ROSE: With respect, that was how we saw it.

HIS HONOUR:  Thank you, Mr Rose. Sir Maurice?

Television 65 SIR M. BYERS, QC 14/1/92

SIR MAURICE:  Could I just say first of all a word or two

about the last submissions my friend has made.

Your Honour, I must confess I had taken the

affidavits as read.

HIS HONOUR: That is true, and I have treated the affidavits

as having been read. I do not think any point has

been taken by Mr Rose in relation to that.

SIR MAURICE:	If that is so, Your Honour, then one finds in the affidavits specific reference to amounts earned
in previous elections.
HIS HONOUR:	Mr Rose conceded that.

SIR MAURICE: So, Your Honour, the only proposition to the

extent that this is a relevant consideration to the

grant of an injunction is that my friend said it

has not been shown that the same thing will happen.

Your Honour, with great respect, it is only to be

stated to be rejected, in our submission. The very

passing of the Act denies the validity of that

proposition, because it is quite a meaningless

exercise.

HIS HONOUR:  I take it that the passing of the Act would

inhibit those who were minded to place
advertisements with the relevant television

licensees and radio licensees.

SIR MAURICE:  Yes, Your Honour, that is the whole point of

it. They say the broadcaster - however eager the

customer may be, the broadcaster cannot broadcast.

So he cannot sue for his fee because he has not

discharged his part of the contract.

HIS HONOUR:  True it is that the plaintiff licensees could

have said on affidavit that had those who place

political broadcasts or advertisements wished to do

so, there was available air time in order to

satisfy their requirements.

SIR MAURICE: Well, I do not know whether that is - that is

the point my friend takes, and we - - -

HIS HONOUR: Well, that is one of the points, because one of

his points was, "Well, maybe you're so overwhelmed

with applicants for paid advertisements that you'd

have to freeze out the political advertisers".

SIR MAURICE:  Your Honour, one of the problems is that one

has these - - -

HIS HONOUR:  It is proceeding from the view that a

television licence is a licence - - -

Television 66 SIR M. BYERS, QC 14/1/92

SIR MAURICE:  One has, Your Honour, the problem that the

amount of free time that is to be allocated, and

hence the amount, on one view, that the plaintiffs

will be forced to give to the political

parties - deriving from their licence, by the way,
but, however, that may be - is dependent upon an

assessment by the Tribunal of the number of

eligible broadcasters, and that has not been made.

So, one does not know, in terms of the regulations,

what is the exact amount of free time, so one

cannot say with exact force, "What I am going to

lose this year, it amounts to so much." But, in

any event, Your Honour, really, I do not think

one - once one has the fact that in the course of

history, so far as one knows it to date, and so far

as the evidence is concerned, people who are

seeking office do pay for advertisements, then it

is almost an irresistible conclusion that that

course of events is likely to recur and that is

reinforced by the passing of a statute.

HIS HONOUR:  But perhaps the political parties suffer from

the same shortage of liquid funds that other

elements in the community suffer from, Sir Maurice.

SIR MAURICE:  That could be, Your Honour, and perhaps one or

more of them might be responsible for it. That is

possibly going into a different matter.

Your Honour, on the question of injunction,

could I just say this, Your Honour. Your Honour,

in Castlemaine, was considering the various matters

like balance of convenience and so on, and

Your Honour did advert to the significance of the public interest, that the public interest is, in

effect, the overriding factor, or conditioning
factor.

Your Honour, the public interest must depend upon the quality of the statute. For example,

suppose one has a statute which offends all

existing notions of freedom, including

constitutional grounds of freedom, then what is

being asserted by the plaintiff is a constitutional

right, and as Your Honour pointed out in

Castlemaine, at page 154:

In other cases the Court has indicated its

willingness to protect a plaintiff's alleged

constitutional right by restraining the

enforcement of a statute where the plaintiff

would suffer irreparable injury without any

countervailing detriment to the public

interest.

HIS HONOUR:  But I am still at a loss to understand what you want me to restrain.

Television 67 SIR M. BYERS, QC 14/1/92

SIR MAURICE:  Yes, Your Honour. What we are asking

Your Honour to restrain is the enforcement of the

statute.

HIS HONOUR:	But, in what respects? You told me you are not seeking an injunction to restrain the Commonwealth
from prosecuting anyone for an offence. Now, we
start from that.  What are the particular steps
which would be involved in the event that I granted
an injunction in general terms against enforcement
of the Act?
SIR MAURICE:	That the public interest would be protected by

the observance of the intercourse rights, for

example, in section 92 which would be set aside in

relation to two of the broadcasters were the

statutes to operate. So, Your Honour, it is a

question where one begins to encounter the question
of validity. If one says, "Well, one will always
say the statute's valid", yes, but if that is the

case, then the public interest cannot intervene.

It can never be a factor.

HIS HONOUR:	No, but my problem is not so much that, Sir Maurice, as endeavouring to envisage what it is
that I am stopping if I grant an injunction in the
general terms which you advocate.

SIR MAURICE: Well, actions, for example, Your Honour, by

the people and my learned friend created by his

statutes, but it is said he has no responsibility

for, by the Australian Broadcasting Tribunal and

the Director of Public Prosecutions.

HIS HONOUR:  The Director of Public Prosecutions? I thought

you had conceded we are not concerned with that.

SIR MAURICE:  No, we are not concerned with prosecution, no,

I concede that. Action by the Australian

Broadcasting Commission - true it is a body

corporate, I agree with that, under the - - -

HIS HONOUR:	And you have not joined it as a defendant.
SIR MAURICE:	I have not joined it as a defendant.
HIS HONOUR:	So you are not asserting that is the

Commonwealth, are you?

SIR MAURICE:  No, I suppose - it may be that I might have to

at some stage ask to join it, if that ever arises.

Let me put it this way, Your Honour. In the

absence of any steps by the Broadcasting Tribunal,

it may be that the actions sought to be restrained

cease to have any significance.	I have got to face
that, and I do so.

Television 68 SIR M. BYERS, QC 14/1/92

HIS HONOUR:  Yes. I can understand that the case has a

different complexion if your clients do not comply

with the statutory requirements, the prohibition one suspects, of course, that the threat of major
and the obligation to give free time, and then the

action under the Broadcasting Act is to some extent

an empty threat, but as I understand it, the

history of the Tribunal in the Bond case rather

suggested that the sanctions are so great that

there is a natural reluctance to embrace them.	So
now we find, for example, a provision that the Tribunal can apply to the Federal Court for a
direction that a party comply with the statutory obligations.

Now, I suppose, if you do not obtain relief at this stage and if, one assumes, the licensees do

several courses: one would be to apply to the Federal Court for a direction, in which event the	not comply, then the Tribunal might take one of the same situation that a Justice of this Court
would if an application were made for interlocutory
relief by the licensees against a threat by the
Tribunal to exercise its powers. The other
alternative would be, of course, that you would
then apply for an injunction to restrain the Tribunal from exercising the powers that it threatened to exercise leaving aside the application to the Federal Court which would stand
on its own two feet.

SIR MAURICE:  I think, Your Honour, with respect, that must

be correct and I do not want to say anything

further on that aspect, if Your Honour pleases.

Perhaps I was talking about balance of

convenience and matters of that sort, but if there

is no specific activity to restrain, then one can

were possible, an early date for hearing. put those aside until later and perhaps we would then be content if Your Honour were to set, if it

HIS HONOUR:	I should say in relation to that, as at present advised, and unless the parties can see any
difficulty, I propose to set the demurrer, or questions to be stated by me in the event that a
demurrer proves not practical, down for hearing before the Full Court in the week that we normally
allocate for the sittings in Hobart - that would be
17 March.
SIR MAURICE:	Then, I suppose, Your Honour, that is all I

can say in relation to that.

HIS HONOUR:  Yes.

Television 69 SIR M. BYERS, QC 14/1/92

SIR MAURICE: There is nothing I can say about it,

Your Honour, in view of the earlier discussion that

passed between us.

Your Honour, if what my learned friend,

Mr Rose, has said about the general questions - I

really do not see there is much point in going into

it because he has only indicated what his argument,

as I understand it, would be.

HIS HONOUR:  Yes, and that was partly at my invitation

because I wanted to get in outline what the

arguments would be so I could get a picture of the

issues that would be presented for the Full Court.

SIR MAURICE: Yes, Your Honour. Well, I can indicate some

sort of considerations in reply.

HIS HONOUR:  Yes, that would be helpful if you did that,

Sir Maurice.

SIR MAURICE:  Yes, Your Honour. Could I take the

acquisition of property. My friend says there has

been no acquisition of property and he bases his
argument on the presence of section 129 in the

provisions of the Act which makes the licence

subject to the provisions of the Act, and then we

have an amending Act, so that inserts provisions in

the Act, and he says, "Well, these are all subject
to the provision of the Act". But, Your Honour,

suppose there was no section 129, to test it.

Would the insertion of a provision such as 129 in

the amending Act deny that there had been an

acquisition of property and, we would say, no,

because in the long run the notion about the

acquisition of property that my friend is advancing

depends upon the proposition that no grant by the

Commonwealth under a statute can· ever be property

to which section Sl(xxxix) can apply because, for

example, the statute can always be repealed. If

you imagine a right granted by a statute, and you

appeal the statute, he would say, "No acquisition

of property".

If you have a licence which you say is subject to conditions which I will insert in another Act,

you say, "No acquisition of property". But the

presence of section 129 is not the crucial factor
because if there was no section 129, the argument

would have to be the same. If there was an

absolute grant of a right deriving its efficacy

from the law of the Commonwealth, still the

argument would have to be the same because the

Parliament could always repeal the law and,

therefore, the right would disappear and my friend

would be forced to say, "That's not an acquisition

of property".

Television 70 SIR M. BYERS, QC 14/1/92

So, really, what he is saying in the long run

is, in our respectful submission, that rights

deriving from federal statutes can never give rise

to property. For example, if one imagined that

there was some power granted by the States under
the Constitution for the Commonwealth to pass laws

about mining and they passed a law to enable gold

mining in an area so that you had section Sl(xxxi)

applying, and then suddenly they said to the man

who had mined for gold, and who had his pile of

gold there, "That's not your gold. You give it to

Mr Smith.", by way of an amendment to the statute

or by way of a condition of a licence, and although

he had to give it to Mr Smith, they would say, "No

acquisition of property".

So the basic notion, Your Honour, is a very

wide notion about what is property and what is, for

the purpose of section Sl(xxxi), and my friend has

really highlighted that, when he said other of the

considerations that they would rely on would be

considerations such as were referred to in Smit,

which, from my recollection, is the case about the

enemy property, where they said, "Well, as that

part of the executive" - I think, Sir Owen Dixon

had the notion that it did not extend to the

executive rights, for lack of a better word, and

therefore that where the right of the property of

the enemy was taken away, that as well was inherent

in the power so that it is almost like Burton v

Honan and those cases where you say the right in

the customs power for taxing - I suppose it is the

import side of the power - enables you to seize the

property, but that is not an acquisition of

property, that sort of notion.

Your Honour, we would submit, with respect,

that this really has nothing to do with that.

Might I just say this, Your Honour, that there is,

as a matter of fact, pending in the Federal Court

in Melbourne, a case arising from the Petroleum and

Minerals Act in the Timor agreement between

Indonesia and Australia, and the question there

arising is whether the change to the mineral leases

Petroleum and change following on the agreement.

granted under a licence under the

HIS HONOUR:	What sort of change was it?
SIR MAURICE:	It was a change that diminished the rights of

the licensee, so that one had exactly the same

question arising, and the argument there has to be,

"Well, it's a right you got by virtue of the

Petroleum and Minerals Act, and we could take it

away", or we could diminish it.

Television 71 SIR M. BYERS, QC 14/1/92

HIS HONOUR:  How far has that case progressed in the Federal

Court?

SIR MAURICE: All I know is that it has gone before the

Federal Court and the pleadings have been

completed. I do not know how far it has gone.

Mr Gaegler tells me the discovery is on foot at the

moment which, of course, the Victorian motions

might take some time.

Your Honour, what I suppose I am saying, and I

do not wish to repeat myself unduly - I know I have

a habit of doing it, Your Honour - but there are

serious questions involved in the very proposition

my learned friend asserts. As to the arguments he

has had deriving from the general power of freedom

of speech, and so on, well then, it is unnecessary

to go into that.

HIS HONOUR:  Yes, there is no occasion to do that.

SIR MAURICE: That is all I wish to say in reply, if

Your Honour pleases.

HIS HONOUR:  Thank you, Sir Maurice. Mr Solicitor.

MR MASON:	Your Honour, my learned friend Mr Rose sought to repel the attack based on section 95J by saying
that it should be read as if the suspension which
it brings about only applies in relation to which regulations can be made and the inference, as I
understood his argument, was, "Well there may yet
be a regulation with respect to by-elections in New
South Wales and, therefore, 95J is satisfied".

In our submission, 95H does not permit

regulations other than those controlling full

elections. One gets that by looking first at the

definition of "total time" in 95H(4) itself, which

is defined: 

in relation to an election -

and we know already that means other than a

by-election -

means the total free time available in respect

of the election, being a time worked out in

accordance with the regulations.

Then, with that definition in one's grasp, one then

goes back to 95H(2) which allocates:

90% of the total time in respect of the

election -

Television 72 14/1/92

to the political parties, and it is quite clear, in

our submission, that the only regulations which 95H

are capable of supporting, if one accepts my

friend's argument, are regulations affecting a

final election and not a by-election.

Your Honour, on the issues of balance of

convenience which have been debated, there is a

reference in a case of Queensland v Commonwealth,

64 ALJR - I am sorry, I did not bring it.	The
point only occurred in the course of this
afternoon's discussion.

HIS HONOUR:  Yes. I can pick it up, though.

MR MASON:  It is a single judge injunction case where the

point was made that a critical factor in not

restraining laws corning into force is the ability

ex post facto, in effect, to run the constitutional

argument at the time when the law is sought to be

enforced as against the plaintiff seeking the
injunction, or the accused person when prosecuted.

That very factor is absent in the present case.

We have a situation, Your Honour, where there

has been no undertaking offered by the Broadcasting

Tribunal. There has been no explanation for its extraordinary rush to direct the broadcasting

outlet's effect in The Entrance to keep silent, and

the beneficiary in the present case is not the

plaintiff but the public who exercise their right

to cast a vote, and there just is no way that the

wrong being done can be unscrambled. The balance

of convenience itself cries out for relief rather

than the other way. The choice, in our submission,

is really between the status quo anti which

involves freedom of information, or the silencing
of what has become the traditional medium of

communicating ideas in an election context without

which the democratic right to vote risks being

reduced to a charade.

Your Honour, if Your Honour refused the application for an injunction, I would ask

Your Honour to reserve a liberty to renew that

application. It is possible that certainly, one

hopes in New South Wales, but it is possible that

there may be further circumstances emerging either
before or at the time of the Full Court sitting
which may make it appropriate for any application

to be renewed.

HIS HONOUR:  But, Mr Solicitor, you are thinking of an

application by New South Wales?

MR MASON:  Your Honour, I am certainly not thinking of any

further by-election occurring.

Television 73 14/1/92

HIS HONOUR: Needless to say, that had not occurred to me

either, but I was just endeavouring to envisage

what scenario you were looking to so far as New

South Wales was concerned. I can understand such

an application being made on behalf of the

plaintiffs in the other action.

MR MASON:	I think I was moving into the more general context of the plaintiffs in the other action, yes.
HIS HONOUR:	Yes, I would think so, but mind you, if I were

going to reserve liberty to apply in the other

action, I might be minded to do so in your action

as well. In other words, I do not whether it would

be altogether appropriate to draw a distinction

between them, and in terms of interlocutory relief,

although it might seem unlikely, at least it would

save you commencing another proceeding should such

an eventuality arise.

MR MASON:  As Your Honour is aware, the present New South

Wales law is that there is a fixed term of

Parliament but, on the other hand, by-elections

seem to be seen as rather critical issues.

HIS HONOUR:  Yes, but one can understand it in New South

Wales, cannot one?

MR MASON:	Yes.
HIS HONOUR:	Yes, Sir Maurice.
SIR MAURICE:	I would ask Your Honour belatedly that

Your Honour should reserve liberty to apply for the

plaintiff.

HIS HONOUR:	Yes, well I had really understood from the tenor of your submissions that although you had not
explicitly asked for that, you had that in mind.
SIR MAURICE: Yes, Your Honour. If Your Honour pleases.
HIS HONOUR:	Do you want to say anything about that,

Mr Rose?

MR ROSE:	No, if it pleases the Court.
HIS HONOUR:	Very well, I shall give my decision in this

matter at 2.15 pm tomorrow.

AT 3.07 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 15 JANUARY 1992

Television 74 14/1/92