Constitutional Law (Cth)—Powers of Commonwealth Parliament—Broadcasting—Elections—Implied right of freedom of communication in relation to elections—Prohibition on broadcasting political matters during elections—Validity—Whether burden on functions of States—Validity in relation to Territories—Whether obnoxious to freedom of intercourse between States—Broadcasters required to provide free time to political parties—Whether acquisition of property otherwise than on just terms—The Constitution (63 and 64 Vict. c. 12), ss. 51(v), (xxxi), 92, 122—Broadcasting Act 1942 (Cth), ss. 95A, 95B, 95C, 95D, 95H, 95L, 95M, 95Q, 95S.
Decisions
MASON C.J. In each action the Commonwealth has demurred to the statement of claim of the plaintiff or plaintiffs. In each action declarations are sought that Pt IIID of the Broadcasting Act 1942 (Cth) ("the Act") is invalid. In the first action, the plaintiffs, who are commercial television broadcasters holding commercial television licences and licence warrants under the Act, seek in the alternative a declaration that s.95D and ss.95B, 95C, 95E, 95Q and 95S of the Act in their application to a broadcaster who is a licensee are invalid. In the second action, the State of New South Wales seeks a second declaration, namely, that Pt IIID of the Act does not apply to Parliamentary by-elections.
2. Part IIID of the Act was introduced into the Act by the Political Broadcasts and Political Disclosures Act 1991 (Cth). As its heading "Political Broadcasts" signifies, the Part is designed to establish a regulatory regime governing the broadcasting on television and radio of political advertisements and other matter. There are a number of elements in the regulatory scheme.
3. The principal elements are: (1) the sweeping prohibitions((1) ss.95B, 95C, 95D, 95E), subject to certain exceptions, including the broadcasting of news and current affairs items and talkback radio programmes((2) s.95A), of the broadcasting during an election period((3) See the definition of "election period" in s.4(1). Subject to certain qualifications, the period begins on the day when the proposed polling day is publicly announced or the day on which the writs for the election are issued, whichever is first, and ends at the closing of the poll on the polling day. The period during which the prohibitions operate is extended in the case of elections to the Commonwealth Parliament and the Legislative Assembly of the Australian Capital Territory (s.95E) but nothing presently turns on this extension) of relevant material in relation to a Commonwealth Parliamentary election or referendum or an election to a legislature or local government authority of a Territory or a State; (2) the imposition on broadcasters of an obligation to make available free of charge units of "free time" for election broadcasts to a political party, person or group to whom the Australian Broadcasting Tribunal ("the Tribunal") has granted such free time ((4) Div.3); (3) the prescription…
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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AGLC
Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45
Case
[1992] HCA 45
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered a challenge brought by Australian Capital Television Pty Ltd and others against the Commonwealth of Australia concerning the validity of amendments to the Broadcasting Act 1942 (Cth) and the Political Broadcasts and Political Advertisements Act 1992 (Cth). The legislation imposed restrictions on political advertising during federal election periods, including a ban on paid political advertising on television and radio during the six months preceding an election. The plaintiffs argued that these restrictions infringed upon their implied freedom of political communication protected by the Australian Constitution.
The central legal issue before the Court was whether the impugned legislative provisions, by restricting political advertising, impermissibly infringed the implied freedom of political communication inherent in the system of representative and responsible government established by the Commonwealth Constitution. The Court was required to determine the scope of this implied freedom and whether the restrictions imposed by the legislation were reasonably appropriate and adapted to serve a legitimate purpose in a constitutional democracy.
The majority of the High Court held that the implied freedom of political communication is a fundamental aspect of the Australian constitutional framework, necessary for the effective functioning of representative government. While acknowledging that this freedom is not absolute and can be limited by legislation, the Court found that the restrictions imposed by the Political Broadcasts and Political Advertisements Act 1992 were not reasonably appropriate and adapted to achieve a legitimate objective. The Court reasoned that the blanket ban on paid political advertising during a significant period before an election unduly curtailed the ability of political actors and the public to engage in political discourse, thereby undermining the very democratic processes the Constitution seeks to protect. The provisions were therefore found to be invalid.