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Australian Capital Television Pty Ltd v Commonwealth

Australian Capital Television Pty Ltd v Commonwealth

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Case Copied 15 January 1992 14 min read

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HIGH COURT OF AUSTRALIA

Mason C.J.

AUSTRALIAN CAPITAL TELEVISION PTY. LIMITED AND ORS v. THE COMMONWEALTH OF AUSTRALIA; Matter No. S5 of 1992

15 January 1992

Decision

MASON C.J. The plaintiffs in these two actions seek interlocutory relief pending the determination of their claims for declarations that Pt IIID of the Broadcasting Act 1942 (Cth) ("the Act") is invalid. In the first action the plaintiffs are the holders of current commercial television licences under the Act. The plaintiff licensees, pursuant to their licences and licence warrants, engage and have engaged in the conduct of commercial television broadcasting within the service areas of their respective licences. The defendant in the first action is the Commonwealth. The plaintiff licensees seek an interlocutory injunction restraining the Commonwealth from enforcing or causing to be enforced the provisions of Pt IIID of the Act and, in the alternative, an expedited hearing of the action.

2. In the second action the plaintiff is the State of New South Wales and the defendants are the Commonwealth and the Australian Broadcasting Tribunal. In this action New South Wales seeks an interlocutory injunction restraining the defendants from:

"enforcing or causing to be enforced the provisions of Part IIID of the Broadcasting Act 1942 both in respect of the by-election for the New South Wales Electoral District of The Entrance or any other by-election to the Legislative Assembly of New South Wales".

New South Wales also seeks an order for an expedited hearing. The New South Wales case for an interlocutory injunction, as distinct from its case for final relief, is based principally, if not solely, upon an argument resting in statutory construction which I shall explain later. The Commonwealth resists the grant of interlocutory relief in both motions while the Tribunal submits to such orders as the Court may make.

3. Part IIID of the Act, which was introduced by the Political Broadcasts and Political Disclosures Act 1991 (Cth), contains a series of provisions prohibiting the radio and television broadcasting of political material and other provisions compelling broadcasters to provide free election broadcasting time during an election period. These provisions create an obligation to broadcast free of charge what are called "units of free time" allocated by the Tribunal to political parties, persons and groups.

4. I infer that compliance with the prohibitions and the "free time" requirement will have an adverse effect on the revenue of the plaintiff licensees, but how serious that effect will be in relation to the licensees collectively and individually I am unable to determine on the evidence before me. That evidence relates to substantial receipts from the sale of air time to political parties and candidates by licensees in the last election in the Australian Capital Territory and the last House of Assembly election in Tasmania. According to that evidence, the plaintiff licensees' principal source of revenue is the sale of "air time". Air time is sold by each licensee to advertisers at negotiated rates and the remaining air time is available for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1992] HCA 1
Decision Date: 15 January 1992

CaseChat Overview and Summary

Australian Capital Television Pty Ltd and others (the applicants) challenged the constitutional validity of certain provisions of the Broadcasting Legislation Amendment Act 1992 (Cth) and the Political Broadcasts and Political উদারताe Legislation Amendment Act 1992 (Cth). The applicants argued that these provisions, which imposed restrictions on political advertising during federal election periods, infringed upon implied rights of freedom of political communication protected by the Australian Constitution. The High Court of Australia was tasked with determining whether these legislative restrictions were constitutionally permissible.

The central legal issue before the High Court was whether the impugned provisions of the Broadcasting Legislation Amendment Act 1992 and the Political Broadcasts and Political Liberalisation Legislation Amendment Act 1992 impermissibly infringed upon an implied freedom of political communication derived from the structure of the Constitution, particularly Chapter I concerning the Parliament. The Court had to consider the scope and nature of this implied freedom and whether the restrictions imposed by the legislation were reasonably appropriate and adapted to serve a legitimate purpose in a manner compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.

Mason C.J. found that the Constitution, by establishing a system of representative and responsible government, impliedly protects freedom of communication to the extent necessary to ensure the efficacy of that system. His Honour concluded that the restrictions imposed by the legislation, which prohibited paid political advertising during election periods, were not reasonably appropriate and adapted to the purpose of ensuring a more equitable distribution of political influence or preventing undue influence. The prohibition was considered too broad and unduly restrictive of political discourse, thereby infringing the implied freedom.

Orders