Australian Capital Television Pty Ltd v The Commonwealth

[1992] HCA 45

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ

AUSTRALIAN CAPITAL TELEVISION PTY. LIMITED AND OTHERS and THE STATE OF NEW SOUTH WALES v. THE COMMONWEALTH OF AUSTRALIA and ANOTHER

(1992) 177 CLR 106

30 September 1992

Constitutional Law (Cth)

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 of criteria according to which the Tribunal will grant free time for election broadcasts to a political party, person or group ((5) ss.95H, 95K, 95L, 95M); (4) the provision of a right of appeal to the Federal Court of Australia against a decision by the Tribunal refusing an application for the grant of free time ((6) s.95R); (5) the permitting and regulation of the broadcast of a "policy launch" by a political party that meets certain prescribed criteria ((7) Div.4).

4. Part IIID does not apply in relation to an election to the Parliament of the Commonwealth or of a State or in relation to an election to the legislature of a Territory until the making of regulations for the purposes of s.95H, which provides for the automatic grant of free time to certain political parties, that relate to that election ((8) s.95J).
Prohibitions against broadcasters

5. The comprehensive reach of the prohibitions imposed on broadcasters is sufficiently illustrated by the provisions of s.95B of the Act which deal with broadcasting in relation to Commonwealth Parliamentary elections and referenda. First, a broadcaster is prohibited from broadcasting "any matter (other than exempt matter)" during an election period "for or on behalf of the government, oR a government authority, of the Commonwealth" ((9) s.95B(1)). The expression "exempt matter" is defined narrowly ((10) s.4(1)) so as to denote a range of matters, announcements and advertisements appropriate to the business of government, having no connection, or no significant connection, with political advertisements oR political information. Secondly, a broadcaster is prohibited from broadcasting during such an election period "a political advertisement" for or on behalf of a government, or government authority, of a Territory ((11) s.95B(2)), or for or on behalf of a government, or a government authority, of a State ((12) s.95B(3)). Thirdly, subject to Divs 3 and 4 ((13) The provisions in Divs 3 and 4 deal respectively with free election broadcasts and broadcasts of policy launches), a broadcaster is prohibited during such an election period from broadcasting a "political advertisement" for or on behalf of a person other than a government, or a government authority, or on his or her own behalf ((14) s.95B(4)). The geographical area of operation of the prohibitions is limited in the case of a by-election ((15) s.95B(5)).

6. The expression "political advertisement" is defined to mean an advertisement that contains "political matter" ((16) s.95B(6)). That term is in turn defined to mean ((17) ibid.):
"(a) matter intended or likely to affect voting in the

election or referendum concerned; or

(b) matter containing prescribed material; but does not mean exempt matter".

"Prescribed material" is defined to mean ((18) ibid):

"material containing an express or implicit reference to, or comment on, any of the following: (a) the election or referendum concerned; (b) a candidate or group of candidates in that election;

(c) an issue submitted or otherwise before electors in that election;

(d) the government, the opposition, or a previous government or opposition, of the Commonwealth;

(e) a member of the Parliament of the Commonwealth; (f) a political party, or a branch or division of a political party".

"Exempt matter" bears the same narrow meaning described above.

7. Section 95A qualifies the reach of the prohibitions affecting broadcasting in relation to Commonwealth elections, referenda and Territory and State elections. Sub-sections (1) to (4) provide: "(1) Nothing in this Part prevents a broadcaster from broadcasting: (a) an item of news or current affairs, or a comment on any such item; or

(b) a talkback radio program. (2) Nothing in this Part prevents the holder of a public radio licence who provides a service for visually handicapped persons from broadcasting any material that he or she is permitted to broadcast under section 119AB. (3) Nothing in this Part prevents a broadcaster from broadcasting an advertisement for, or on behalf of, a charitable organisation if: (a) the advertisement is aimed at promoting the objects of the organisation; and

(b) the advertisement does not explicitly advocate voting for or against a candidate in an election or a political party.

(4) Nothing in this Part prevents a broadcaster from broadcasting public health matter, whether by way of advertisement or otherwise."

The expression "public health matter" is defined in a way that is designed to prevent sub-s.(4) from becoming a source of authority for the broadcasting of political advocacy or criticism.

8. In the case of an election to the legislature or local government authority of a Territory or a State, prohibitions similar to those applicable in the case of Commonwealth Parliamentary elections apply to a broadcaster ((19) ss.95C, 95D). In the case of a Territory election, there is an additional prohibition against the broadcasting of a political advertisement for or on behalf of the government, or a government authority, of another Territory ((20) s.95C(2)).
Allocation of free election broadcasting time

9. The Tribunal is required to grant a period of free time to each political party that ((21) s.95H(1)):
"(a) was represented by one or more members in the relevant
Parliament or legislature immediately before the end of the last sittings of that Parliament or legislature held before the election; and (b) is contesting the election with at least the prescribed number of candidates". The total free time to be granted to political parties pursuant to that requirement is 90 per cent of the total time in respect of that election and the Tribunal must grant each of those parties such part of the total free time period as it determines in accordance with the regulations ((22) s.95H(2)). So far as is practicable, the regulations should 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 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 by all of the political parties mentioned in s.95H(1) or their candidates at that last election ((23) s.95H(3)). The requirement does not apply to by-elections or local government elections ((24) s.95H(4)).

10. In cases not provided for in s.95H, the Tribunal is required to consider applications for the grant of free time. Subject to being satisfied that an applicant is a candidate for a Senate election and was a member of the Senate immediately before the end of the last sittings of the Senate before the election and is not a member of a party to whom a grant of time has been made under s.95H, the Tribunal must grant the applicant free time ((25) s.95L(1)). Again, the period granted to a person must accord with the regulations and must, in total, be not less than 5 per cent and not more than 10 per cent of the total time in respect of the election ((26) s.95L(2)). If the Tribunal is required to grant free time to two or more applicants under s.95L, the time must be divided equally between or among them ((27) s.95L(3)). Otherwise, the Tribunal has a discretion to grant free time to political parties and independent candidates on an application determined in accordance with the regulations, provided that the Tribunal is satisfied of certain matters ((28) s.95M(1) and (2)).

11. The Tribunal is required to divide each period of free time granted into units of free time in conformity with the regulations ((29) s.95P(1)) and allocate units of free time accordingly to broadcasters ((30) s.95P(3)). A broadcaster to whom units of free time are so allocated must make them available for use in making one or more election broadcasts during the relevant election period on behalf of the political party, person or group to whom the time is granted ((31) s.95Q(1)) and must do so free of charge ((32) s.95Q(5)). The broadcaster must use the units in accordance with the regulations and guidelines determined by the Tribunal ((33) s.95Q(2)). The broadcaster must make, during the election period, in the case of a Commonwealth election, at least three election broadcasts by television on each day on which the broadcaster is required to use units of free time; in the case of a Territory election, the prescribed number of election broadcasts by television on each such day; and, in the case of a State election, at least two election broadcasts by television on each such day ((34) s.95Q(4)). A licensee who is required to make an election broadcast is entitled to such additional broadcasting time for the purpose of broadcasting other material as is determined in accordance with the regulations ((35) s.95Q(7)). The expression "election broadcast" is defined in such a way as to prescribe the format of the broadcast, that is, amongst other things, it must be the broadcast of an advertisement consisting of words spoken by a single speaker (without dramatic enactment oR impersonation) and take the form of a "talking head" presentation lasting two minutes in the case of a television broadcast and one minute in the case of a radio broadcast ((36) s.95G).
Broadcast of policy launches

12. A broadcaster is permitted to broadcast a party's policy launch, provided it meets certain prescribed requirements, once only during the relevant election period ((37) s.95S(1) and (5)) for not more than thirty minutes and free of charge ((38) s.95S(4)). The broadcaster who so broadcasts a party policy launch must give a reasonable opportunity to every other political party that satisfies prescribed requirements for the broadcasting of that party's policy launch ((39) s.95S(3)).
Contraventions of Part IIID

13. The Tribunal is obliged to take all reasonable steps to consider and deal immediately with a complaint or information about a contravention of ss.95B, 95C, 95D, 95E or 95S ((40) s.95T). On application by the Tribunal, the Federal Court may make such orders as it thinks necessary or expedient foR the purpose of preventing, or preventing a repetition of, a contravention of any of those five sections ((41) s.95U).
Effect of Part IIID

14. The effect of Pt IIID, especially ss.95B, 95C and 95D, is, as the plaintiffs submit, to exclude the use of radio and television during election periods as a medium of political campaigning and even as a medium for the dissemination of political information, comment and argument and as a forum of discussion except in so far as (a) s.95A permits the broadcasting of news and current affairs items and talkback radio programmes; (b) Div.3 permits free election broadcasts; and (c) Div.4 permits the broadcasting of policy launches.

15. Not much turns on the extent of the protection given by s.95A(1). It is designed to ensure that the prohibitions which, generally speaking, strike at the broadcasting of matter which is likely to affect voting at an election and matter which includes an implied or explicit reference to an issue in an election do not inhibit the broadcasting of news and current affairs items, talkback radio programmes and announcements affecting matters of specific public interest. But the protection elevates news, current affairs and talkback radio programmes to a position of very considerable importance during an election period. If Pt IIID were valid, talkback and current affairs programmes would unquestionably become, if they are not already, the principal vehicle for political discussion during an election period. And the prohibitions may make it more difficult for a political party, person or group to make an effective response to information oR comment contained in such a programme which is adverse to the interests of that party, person or group.

16. The consequence is that Pt IIID severely impairs the freedoms previously enjoyed by citizens to discuss public and political affairs and to criticize federal institutions. Part IIID impairs those freedoms by restricting the broadcasters' freedom to broadcast and by restricting the access of political parties, groups, candidates and persons generally to express views with respect to public and political affairs on radio and television.

17. The Commonwealth's response is that the evident and principal purpose of Pt IIID is to safeguard the integrity of the political system by reducing, if not eliminating, pressure on political parties and candidates to raise substantial sums of money in order to engage in political campaigning on television and radio, a pressure which renders them vulnerable to corruption and to undue influence by those who donate to political campaign funds. The high costs of broadcast advertising have the effect, so it is said, of exposing political parties and candidates for election to attempts by substantial donors to exert influence. The escalating costs of political campaigning, particularly the costs of advertising on the electronic media, thus increase the risk that corruption and undue influence may affect the integrity of the political process. In his second reading speech when introducing the legislation in the House of Representatives ((42) House of Representatives Parliamentary Debates (Hansard), 9 May 1991, p 3477), the Minister referred to these problems and stated that the Bill sought to address them by the measures now contained in Pt IIID and by requiring and regulating public disclosure of the election funding of political parties. The Minister made the point that the effect of Pt IIID was to cleanse the electoral process by reducing the possibility that it would be corrupted by reason of the financial vulnerability of the political parties and theiR need to defray the very high costs of political campaigning. It is plain that the legislation would achieve this result by prohibiting political advertising in election periods and replacing it with a regulated system of election broadcasts free of charge, including the broadcast of policy launches. The Minister referred to the Report of the Joint Standing Committee on Electoral Matters, Who pays the piper calls the tune ((43) Report No.4 of the Committee, June 1989), in connection with the Bill.

18. The Minister went on to say ((44) House of Representatives Parliamentary Debates (Hansard), 9 May 1991, p 3479): "The proposed ban is aimed directly at the single greatest factor in
campaign costs. The exorbitant cost of broadcast advertising precludes the majority of the community and all but the major political parties and large corporate interests from paid access to the airwaves. The Government carefully considered the implications of the proposals on the right to freedom of speech, both as it is generally accepted and specifically under international law. In respect of the latter, article 19(2) of the International Covenant on Civil and Political Rights, to which Australia is a party, requires parties to guarantee the right of freedom of expression. This right is not absolute. Article 19(3) of the covenant provides that the right may be limited in the interests of public order. The prohibition of the broadcasting of political advertising is directed squarely at preventing potential corruption and undue influence of the political process. The Government is satisfied that the proposals are a necessary and proportionate response to this threat and do not constitute a breach of our international obligations."

19. The Minister referred to two further benefits which Pt IIID would bring about. The prohibitions against broadcasting political advertising would terminate the privileged status of the few in the community who could afford to pay the high costs of such advertising and "place all in the community on an equal footing so far as the use of the public airwaves is concerned" ((45) ibid., p 3480). The Minister also asserted that the prohibitions would put an end to the "trivialising" of political debate which resulted from the transmission of very brief political advertisements ((46) ibid).

20. The Senate referred the Bill to a Select Committee foR inquiry and report. The report of the Select Committee ((47) The Political Broadcasts and Political Disclosures Bill 1991, Report by the Senate Select Committee on Political Broadcasts and Disclosures, November 1991) points out that the high cost of political campaigning on television and radio has been acknowledged in other countries. Indeed, restrictions on political advertising have been introduced in a number of countries in order to deal with these problems ((48) See ibid., Appendix 5). Thus, of nineteen countries examined in the Report of the Joint Standing Committee on Electoral Matters, Who pays the piper calls the tune ((49) op cit), only five - Australia, Canada, New Zealand, Germany and the United States - allow paid advertisements on electronic media ((50) In addition, the report of the Senate Select committee states that paid political advertising is permitted in Ireland and Switzerland: The Political Broadcasts and Political Disclosures Bill, op cit, p 123. In Ireland, the amount of advertising time is restricted during an election period and the available time is allocated in proportion to representation in the parliament.). But paid political advertising on the electronic media is not permitted in the United Kingdom, France, Norway, Sweden, the Netherlands, Denmark (during an election period), Austria (during an election period), Israel (during an election period) and Japan (during an election period). Free time is allocated in an election period for political advertising on the electronic media in Canada, France, New Zealand, Denmark, Austria, Israel, Japan, Germany and the Netherlands.

21. The measures taken overseas evidence the existence of the problems identified in the report of the Senate Select Committee. Those measures also indicate that in some jurisdictions prohibitions on political advertising on electronic media and the provision of free time for election broadcasts have been adopted with a view to solving these problems.

22. But, and this is the critical point, the overseas experience does not refute the proposition that Pt IIID impairs freedom of discussion of public and political affairs and freedom to criticize federal institutions in the respects previously mentioned. Thus, the Commonwealth's claim that Pt IIID introduces and maintains a "level playing field" cannot be supported if that claim is to be understood as offering equality of access to all in relation to television and radio. It is obvious that the provisions of Div.3 regulating the allocation of free time give preferential treatment to political parties represented in the preceding Parliament or legislature which are contesting the relevant election with at least the prescribed number of candidates. Their entitlement amounts to 90 per cent of the total free time. Others must of necessity rely on the exercise of discretion by the Tribunal. As among the political parties, the principle of allocation to be applied will tend to favour the party or parties in government because it gives weight to the first preference voting in the preceding election. Furthermore, a senator who seeks re-election is given preferential treatment over a candidate, not being a senator, who stands for election to the Senate. The former, but not the latter, is entitled to a grant of free time. The latter must rely on an exercise of discretion by the Tribunal and the Act makes no attempt to enunciate the criteria according to which that discretion is to be exercised. The provisions of Pt IIID manifestly favouR the status quo. More than that, the provisions regulating the allocation of free time allow no scope for participation in the election campaign by persons who are not candidates or by groups who are not putting forward candidates for election. Employers' organizations, trade unions, manufacturers' and farmers' organizations, social welfare groups and societies generally are excluded from participation otherwise than through the means protected by s.95A. The consequence is that freedom of speech oR expression on electronic media in relation to public affairs and the political process is severely restricted by a regulatory regime which evidently favours the established political parties and their candidates without securing compensating advantages or benefits for others who wish to participate in the electoral process or in the political debate which is an integral part of that process.
The Issues

23. The plaintiffs in the first action contend that ss.95B, 95C and 95D constitute a contravention of - (1) an implied guarantee of freedom of access to, participation
in and criticism of federal and State institutions amounting to a freedom of communication in relation to the political and electoral processes; (2) the express guarantee of freedom of intercourse in s.92 of the Constitution; and (3) an implied guarantee of freedom of communication arising from the common citizenship of the Australian people. They also contend that the prohibitions in s.95D concerning State elections are beyond legislative power or are contrary to the implied prohibition against Commonwealth interference with the capacity of a State to function in its legislative, executive and judicial capacities. The plaintiffs further argue that the provisions of Pt IIID requiring the broadcasting of election broadcasts free of charge, particularly s.95Q, amount to an acquisition of property otherwise than on just terms and the provisions are invalid on this ground. In the second action, the plaintiff presents similar arguments, its principal argument being that interference with State elections is a substantial interference with the functioning of constituent organs of the State and their structural integrity.

24. The plaintiffs do not suggest that Pt IIID would lie outside the scope of the legislative powers of the Parliament of the Commonwealth were it not for the implied and express prohibitions and guarantees on which they rely. The plaintiffs accept, correctly in my view, that the legislative powers conferred by s.51(v) with respect to "postal, telegraphic, telephonic and other like services" and the various legislative powers conferred on the Parliament by the Constitution with respect to federal elections and the electoral process would support the Act but for the arguments raised in these actions ((51) It is to be noted that the statement of this Court in Fabre v. Ley (1972) 127 CLR 665, at p 669, that the power of the Parliament to enact an electoral law "is not subject to any restriction other than that which flows from s.41 of the Constitution" was not directed to arguments of the kind raised in this case.
It is to be noted also that the statements of members of this Court in Miller v. TCN Channel Nine Pty. Ltd. (1986) 161 CLR 556, per Gibbs C.J. at p 569; Mason J. at p 579; Brennan J. at p 615; Dawson J. at p 636, that, given s.92 of the Constitution, it was not possible to imply a separate guarantee of freedom of communication, were directed to the rejection of an argument for the implication of a guarantee of freedom of interstate communication, that is, a guarantee operating in the very area provided foR 0004 by s.92.).

25. But, on the view which I take of these actions, Pt IIID contravenes an implied guarantee of freedom of communication, at least in relation to public and political discussion. I shall therefore confine my discussion of the issues to that aspect of the actions, without embarking upon the otheR issues which were argued.
Constitutional implications

26. Sir Owen Dixon noted that, following the decision in Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. ("the Engineers' Case") ((52) (1920) 28 CLR 129), the notion seemed to gain currency that no implications could be made in interpreting the Constitution ((53) West v. Commissioner of Taxation (N.S.W.) (1937) 56 CLR 657, at p 681). The Engineers' Case certainly did not support such a Draconian and unthinking approach to constitutional interpretation ((54) ibid., peR Dixon J. at p 682). Sir Owen expressed his own opposition to that approach when he said ((55) ibid., at p 681): "Such a method of construction would defeat the intention of any
instrument, but of all instruments a written constitution seems the last to which it could be applied." Later, he was to say ((56) Australian National Airways Pty. Ltd. v. The Commonwealth (1945) 71 CLR 29, at p 85; see also Lamshed v. Lake (1945) 99 CLR 132, peR Dixon C.J. at p 144):

"We should avoid pedantic and narrow constructions in dealing with an instrument of government and I do not see why we should be fearful about making implications."

Subsequently, Windeyer J., in a passage in which he referred to that statement, remarked ((57) Victoria v. The Commonwealth ("the Payroll Tax Case") 122 CLR 353, at pp 401-402) "implications have a place in the interpretation of the Constitution" and "our avowed task is simply the revealing or uncovering of implications that are already there".

27. In conformity with this approach, the Court has drawn implications from the federal structure prohibiting the Commonwealth from exercising its legislative and executive powers in such a way as to impose upon a State some special disability or burden unless the relevant power authorized that imposition or in such a way as to threaten the continued existence of a State as an independent entity oR its capacity to function as such ((58) Queensland Electricity Commission v. The Commonwealth (1985) 159 CLR 192, at pp 205, 217, 226, 231, 247, 260-262). But there is no reason to limit the process of constitutional implication to that particular source.

28. Of course, any implication must be securely based. Thus, it has been said that "ordinary principles of construction are applied so as to discover in the actual terms of the instrument their expressed or necessarily implied meaning" ((59) The Engineers' Case (1920) 28 CLR, per Knox C.J., Isaacs, Rich and Starke JJ. at p 155) (emphasis added). This statement is too restrictive because, if taken literally, it would deny the very basis - the federal nature of the Constitution - from which the Court has implied restrictions on Commonwealth and State legislative powers ((60) West v. Commissioner of Taxation (N.S.W.); Essendon Corporation v. Criterion Theatres Ltd. (1947) 74 CLR l; Melbourne Corporation v. The Commonwealth (1947) 74 CLR 31; Queensland Electricity Commission v. The Commonwealth; State Chamber of Commerce and Industry v. The Commonwealth (The Second Fringe Benefits Tax Case) (1987) 163 CLR 329). That the statement is too restrictive is evident from the remarks of Dixon J. in Melbourne Corporation v. The Commonwealth ((61) (1947) 74 CLR , at p 83) where his Honour stated that "the efficacy of the system logically demands" the restriction which has been implied and that "an intention of this sort is ... to be plainly seen in the very frame of the Constitution".

29. It may not be right to say that no implication will be made unless it is necessary. In cases where the implication is sought to be derived from the actual terms of the Constitution it may be sufficient that the relevant intention is manifested according to the accepted principles of interpretation. However, where the implication is structural rather than textual it is no doubt correct to say that the term sought to be implied must be logically or practically necessary for the preservation of the integrity of that structure.

30. It is essential to keep steadily in mind the critical difference between an implication and an unexpressed assumption upon which the framers proceeded in drafting the Constitution ((62) Australian National Airways Pty. Ltd. v. The Commonwealth (1945) 71 CLR , per Dixon J. at p 81). The former is a term oR concept which inheres in the instrument and as such operates as part of the instrument, whereas an assumption stands outside the instrument. Thus, the founders assumed that the Senate would protect the States but in the result it did not do so. On the other hand, the principle of responsible government - the system of government by which the executive is responsible to the legislature - is not merely an assumption upon which the actual provisions are based; it is an integral element in the Constitution ((63) The Engineers' Case (1920) 28 CLR, per Knox C.J., Isaacs, Rich and Starke JJ. at p 147). In the words of Isaacs J. in The Commonwealth v. Kreglinger and Fernau Ltd. and Bardsley ((64) (1926) 37 CLR 393, at p 413): "It is part of the fabric on which the written words of the Constitution are superimposed."
The implication of fundamental rights

31. The adoption by the framers of the Constitution of the principle of responsible government was perhaps the majoR reason for their disinclination to incorporate in the Constitution comprehensive guarantees of individual rights ((65) "(T)he Australian Constitution is built upon confidence in a system of parliamentary Government with ministerial responsibility": Attorney-General (Cth); Ex rel. McKinlay v. The Commonwealth (1975) 135 CLR 1, per Barwick C.J. at p 24). They refused to adopt a counterpart to the Fourteenth Amendment to the Constitution of the United States. Sir Owen Dixon said ((66) Sir Owen Dixon, "Two Constitutions Compared", Jesting Pilate, (1965), p 102): "(they) were not prepared to place fetters upon legislative action,
except and in so far as it might be necessary for the purpose of distributing between the States and the central government the full content of legislative power. The history of their country had not taught them the need of provisions directed to control of the legislature itself." The framers of the Constitution accepted, in accordance with prevailing English thinking, that the citizen's rights were best left to the protection of the common law in association with the doctrine of parliamentary supremacy ((67) Sir Anthony Mason, "The Role of a Constitutional Court in a Federation", (1986) 16 Federal Law Review 1, at p 8).

32. So it was that Professor Harrison Moore, writing in 1901, was able to say of the Constitution ((68) The Constitution of the Commonwealth of Australia, 1st ed. (1902), p 329): "The great underlying principle is, that the rights of individuals are
sufficiently secured by ensuring, as far as possible, to each a share, and an equal share, in political power."

33. In the light of this well recognized background, it is difficult, if not impossible, to establish a foundation for the implication of general guarantees of fundamental rights and freedoms. To make such an implication would run counter to the prevailing sentiment of the framers that there was no need to incorporate a comprehensive Bill of Rights in order to protect the rights and freedoms of citizens. That sentiment was one of the unexpressed assumptions on which the Constitution was drafted.

34. However, the existence of that sentiment when the Constitution was adopted and the influence which it had on the shaping of the Constitution are no answer to the case which the plaintiffs now present. Their case is that a guarantee of freedom of expression in relation to public and political affairs must necessarily be implied from the provision which the Constitution makes for a system of representative government. The plaintiffs say that, because such a freedom is an essential concomitant of representative government, it is necessarily implied in the prescription of that system.
Representative government

35. The Constitution provided for representative government by creating the Parliament, consisting of the Queen, a House of Representatives and a Senate, in which legislative poweR is vested ((69) s.1), the members of each House being elected by popular vote, and by vesting the executive poweR in the Queen and making it exercisable by the Governor-General on the advice of the Federal Executive Council ((70) ss.61, 62), consisting of the Queen's Ministers of State drawn, subject to a minor qualification, from the House of Representatives and the Senate ((71) s.64. "AfteR the first general election no Minister shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives."). In the case of the Senate, s.7 provides that it: "shall be composed of senators for each State, directly chosen by the
people of the State, voting, until the Parliament otherwise provides, as one electorate". In the case of the House of Representatives, s.24 provides that it:

"shall be composed of members directly chosen by the people of the Commonwealth".

Although s.24 contains no reference to voting, s.25 makes it clear that "chosen" means "chosen by vote at an election".

36. In Attorney-General (Cth); Ex rel McKinlay v. The Commonwealth ((72) (1975) 135 CLR , at pp 55-56), Stephen J. discerned in these two provisions the principles of representative democracy (by which he meant that the legislators are directly chosen by the people) and direct popular election. The correctness of his Honour's view is incontestable, notwithstanding that the Constitution does not prescribe universal adult suffrage. Such a suffrage did not exist at that time. Although prescription of the qualifications of electors was left for the ultimate determination of the Parliament ((73) ss.8, 30), the Constitution nonetheless brought into existence a system of representative government in which those who exercise legislative and executive power are directly chosen by the people. The Governor-General, though the repository of executive power, does not personally exercise that power, being bound to act with the advice of the Executive Council ((74) It should be noted that the notion of representative government leaves out of account the judicial branch of government.).

37. The very concept of representative government and representative democracy signifies government by the people through their representatives. Translated into constitutional terms, it denotes that the sovereign poweR which resides in the people is exercised on their behalf by their representatives. In the case of the Australian Constitution, one obstacle to the acceptance of that view is that the Constitution owes its legal force to its character as a statute of the Imperial Parliament enacted in the exercise of its legal sovereignty; the Constitution was not a supreme law proceeding from the people's inherent authority to constitute a government ((75) Sir Owen Dixon, "The Law and the Constitution", (1935) 51 Law Quarterly Review 590, at p 597.), notwithstanding that it was adopted, subject to minor amendments, by the representatives of the Australian colonies at a Convention and approved by a majority of the electors in each of the colonies at the several referenda. Despite its initial character as a statute of the Imperial Parliament, the Constitution brought into existence a system of representative government for Australia in which the elected representatives exercise sovereign power on behalf of the Australian people. Hence, the prescribed procedure for amendment of the Constitution hinges upon a referendum at which the proposed amendment is approved by a majority of electors and a majority of electors in a majority of the States ((76) s.128). And, most recently, the Australia Act 1986 (U.K.) marked the end of the legal sovereignty of the Imperial Parliament and recognized that ultimate sovereignty resided in the Australian people ((77) Lindell,"Why is Australia's Constitution Binding? - The Reasons in 1900 and Now, and the Effect of Independence", (1986) 16 Federal Law Review 29, at p 49.). The point is that the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act. Freedom of communication as an indispensable element in representative government

38. Indispensable to that accountability and that responsibility is freedom of communication, at least in relation to public affairs and political discussion. Only by exercising that freedom can the citizen communicate his or her views on the wide range of matters that may call for, or are relevant to, political action or decision. Only by exercising that freedom can the citizen criticize government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives. By these means the elected representatives are equipped to discharge their role so that they may take account of and respond to the will of the people. Communication in the exercise of the freedom is by no means a one-way traffic, for the elected representatives have a responsibility not only to ascertain the views of the electorate but also to explain and account for their decisions and actions in government and to inform the people so that they may make informed judgments on relevant matters. Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives; government would cease to be responsive to the needs and wishes of the people and, in that sense, would cease to be truly representative.

39. Freedom of communication in relation to public affairs and political discussion cannot be confined to communications between elected representatives and candidates for election on the one hand and the electorate on the other. The efficacy of representative government depends also upon free communication on such matters between all persons, groups and other bodies in the community. That is because individual judgment, whether that of the elector, the representative or the candidate, on so many issues turns upon free public discussion in the media of the views of all interested persons, groups and bodies and on public participation in, and access to, that discussion ((78) Lord Simon of Glaisdale made the point in Attorney-General v. Times Newspapers Ltd. (1974) AC 273, at p 315, when he said:

"People cannot adequately influence the decisions which affect their lives unless they can be adequately informed on facts and

arguments relevant to the decisions. Much of such fact-finding and argumentation necessarily has to be conducted vicariously, the public press being a principal instrument."). In truth, in a representative democracy, public participation in political discussion is a central element of the political process.

40. Archibald Cox made a similar point when he said ((79) The Court and the Constitution, (1987), p 212.): "Only by uninhibited publication can the flow of information be secured
and the people informed concerning men, measures, and the conduct of government ... Only by freedom of speech, of the press, and of association can people build and assert political power, including the power to change the men who govern them."

The last sentence in the passage just quoted is a striking comment on Professor Harrison Moore's statement that "(t)he great underlying principle" of the Constitution ((80) The Constitution of the Commonwealth of Australia, op cit, p 329.) was that the rights of individuals were sufficiently secured by ensuring each an equal share in political power. Absent freedom of communication, there would be scant prospect of the exercise of that power.

41. The fundamental importance, indeed the essentiality, of freedom of communication, including freedom to criticize government action, in the system of modern representative government has been recognized by courts in many jurisdictions. They include Australia ((81) Commonwealth of Australia v. John Fairfax and Sons Ltd. (1980) 147 CLR 39, per Mason J. at p 52; this statement was approved in Attorney-General v. Guardian Newspapers Ltd. (No.2) (1990) 1 AC 109, at pp 258, 270, 283.), England ((82) Attorney-General v. Guardian Newspapers Ltd (No. 2); Hector v. Attorney-General of Antigua and Barbuda (1990) 2 AC 312, per Lord Bridge of Harwich at p 318; Derbyshire County Council v. Times Newspapers Ltd. (1992) 3 WLR 28, peR Balcombe L.J. at p 46; Ralph Gibson L.J. at pp 54-55; Butler-Sloss L.J. at p 62.), the United States ((83) New York Times Co. v. Sullivan (1964) 376 US 254; Smith v. Daily Mail Publishing Co. (1979) 443 US 97, per Rehnquist J. at p 106:
"Historically, we have viewed freedom of the speech as indispensable to a free society and its government."), Canada ((84) Re Alberta Legislation (1938) 2 DLR 81, per Duff C.J. and Davis J. at pp 107-108; Re Fraser and Public Service Staff Relations Board (1985) 23 DLR (4th) 122, per curiam, at p 128; Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd. (1986) 33 DLR (4th) 174, per McIntyre J. (with whom all members of the Supreme Court of Canada agreed on this point) at p 183:

"Freedom of expression is not ... a creature of the Charter. It is one of the fundamental concepts that has formed the basis of the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.") and the European Court of Human Rights ((85) Handyside v. United Kingdom (1976) 1 EHRR 737, at p 754; The Sunday Times Case (The Sunday Times v. The United Kingdom) (1979) 2 EHRR 245; Lingens v. Austria (1986) 8 EHRR 407, at p 418; The Observer and the Guardian v. United Kingdom (1991) 14 EHRR 153, at pp 191, 200, 206-207, 216, 217, 218; The Sunday Times v. United Kingdom (No.2) (1991) 14 EHRR 229, at p 247.).

Implication of a guarantee of freedom of communication on matters relevant to public affairs and political discussion

42. Freedom of communication in the sense just discussed is so indispensable to the efficacy of the system of representative government for which the Constitution makes provision that it is necessarily implied in the making of that provision. Much the same view was taken in Canada under the British North America Act 1867 (Imp) (30 and 31 Vict. c.3) which contained no express guarantee of freedom of speech or freedom of communication. The preamble to that Act manifested an intention to bring into existence a Constitution for Canada similar in principle to that of the United Kingdom. From the existence of the preamble, and from the grant of representative government in the form of parliamentary democracy and the dependence of that institution for its efficacy on the exercise of the right of free public discussion, Duff C.J., Cannon and Davis JJ. in Re Alberta Legislation concluded that the Parliament of Canada had by necessary implication legislative power to protect that right and that, correspondingly, provincial legislatures lacked power to curtail the right or at any rate so "as substantially to interfere with the working of the parliamentary institutions of Canada" ((86) (1938) 2 DLR 81, at pp 107-109, 119-120). In Switzman v. Elbling ((87) (1957) 7 DLR (2d) 337, at p 371), Abbott J. expressed the view that neither federal nor provincial legislatures could abrogate the right, a view which was endorsed by Beetz J. (writing foR himself and three other Judges) in Re Ontario Public Service Employees' Union and Attorney-General for Ontario ((88) (1987) 41 DLR (4th) 1, at p 40). In the result, to repeat the words of McIntyre J. in Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd. ((89) (1986) 33 DLR (4th), at p 184), it may now be said that: "(p)rior to the adoption of the Charter, freedom of speech and
expression had been recognized as an essential feature of Canadian parliamentary democracy." His Lordship added the comment: "Indeed, this Court may be said to have given it constitutional status." ((90) ibid. See also the endorsement of these remarks by Dickson C.J. in Re Ontario Public Service Employees' Union (1987) 41 DLR (4th), at p 16, and a similar statement in Re Fraser and Public Service Staff Relations Board (1985) 23 DLR (4th), per curiam, at pp 127-128.)

43. It seems that the Supreme Court of Canada has ascertained from the structure of the Constitution granted by the British North America Act and its preamble an implied freedom of speech and expression which may be more extensive as to subject-matter than the implied freedom I have identified so far from my analysis of the Australian Constitution. Whether freedom of communication in relation to public affairs and political discussion is substantially different from an unlimited freedom of communication and, if so, what is the extent of the difference, are questions which were not debated and do not call for decision. What is presently significant is that the implied freedom of speech and expression in Canada is founded on the view that it is indispensable to the efficacious working of Canadian representative parliamentary democracy.
The indivisibility of freedom of communication in relation to public affairs and political discussion

44. The concept of freedom to communicate with respect to public affairs and political discussion does not lend itself to subdivision. Public affairs and political discussion are indivisible and cannot be subdivided into compartments that correspond with, or relate to, the various tiers of government in Australia. Unlike the legislative powers of the Commonwealth Parliament, there are no limits to the range of matters that may be relevant to debate in the Commonwealth Parliament or to its workings. The consequence is that the implied freedom of communication extends to all matters of public affairs and political discussion, notwithstanding that a particulaR matter at a given time might appear to have a primary or immediate connection with the affairs of a State, a local authority or a Territory and little or no connection with Commonwealth affairs. Furthermore, there is a continuing inter-relationship between the various tiers of government. To take one example, the Parliament provides funding for the State governments, Territory governments and local governing bodies and enterprises. That continuing inter-relationship makes it inevitable that matters of local concern have the potential to become matters of national concern. That potential is in turn enhanced by the predominant financial power which the Commonwealth Parliament and the Commonwealth government enjoy in the Australian federal system ((91) Sir Anthony Mason, op cit, p 14).
Infringement: the test to be applied.

45. In most jurisdictions in which there is a guarantee of freedom of communication, speech or expression, it has been recognized that the freedom is but one element, though an essential element, in the constitution of "an ordered society" ((92) Hughes and Vale Pty. Ltd. v. The State of New South Wales (No.2) (1955) 93 CLR 127, per Kitto J. at p 219) or a "society organized under and controlled by law" ((93) Samuels v. Readers' Digest Association Pty. Ltd. (1969) 120 CLR 1, per Barwick C.J. at p 15). Hence, the concept of freedom of communication is not an absolute. The guarantee does not postulate that the freedom must always and necessarily prevail over competing interests of the public. Thus, to take an example, Parliament may regulate the conduct of persons with regard to elections so as to prevent intimidation and undue influence, even though that regulation may fetter what otherwise would be free communication ((94) Smith v. Oldham (1912) 15 CLR 355, per Griffith C.J. at pp 358-359). And, in the United States, despite the First Amendment, the media is subject to laws of general application ((95) Cohen v. Cowles Media Co. (1991) 59 LW. 4773, at p 4775).

46. A distinction should perhaps be made between restrictions on communication which target ideas or information and those which restrict an activity or mode of communication by which ideas or information are transmitted. In the first class of case, only a compelling justification will warrant the imposition of a burden on free communication by way of restriction and the restriction must be no more than is reasonably necessary to achieve the protection of the competing public interest which is invoked to justify the burden on communication. Generally speaking, it will be extremely difficult to justify restrictions imposed on free communication which operate by reference to the character of the ideas or information. But, even in these cases, it will be necessary to weigh the competing public interests, though ordinarily paramount weight would be given to the public interest in freedom of communication ((96) Cox Broadcasting Corp. v. Cohn (1975) 420 US 469, at p 491 et seq.). So, in the area of public affairs and political discussion, restrictions of the relevant kind will ordinarily amount to an unacceptable form of political censorship.

47. On the other hand, restrictions imposed on an activity oR mode of communication by which ideas or information are transmitted are more susceptible of justification. The regulation of radio and television broadcasting in the public interest generally involves some restrictions on the flow and dissemination of ideas and information. Whether those restrictions are justified calls for a balancing of the public interest in free communication against the competing public interest which the restriction is designed to serve, and for a determination whether the restriction is reasonably necessary to achieve the competing public interest ((97) "(G)eneral regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First ... Amendment forbade ... Whenever, in such a context, these constitutional protections are asserted against the exercise of valid government powers a reconciliation must be effected, and that perforce requires an appropriate weighing of the respective interests involved": Konigsberg v. State Bar of California (1961) 366 US 36, per Harlan J. at pp 50-51; Tribe, American Constitutional Law, 2nd ed. (1988), pp 790-791. (98) See, in a different context, Castlemaine Tooheys Ltd. v. South Australia (1990) 169 CLR 436, at pp 471-472.). If the restriction imposes a burden on free communication that is disproportionate to the attainment of the competing public interest, then the existence of the disproportionate burden indicates that the purpose and effect of the restriction is in fact to impair freedom of communication (98).

48. In weighing the respective interests involved and in assessing the necessity for the restriction imposed, the Court will give weight to the legislative judgment on these issues. But, in the ultimate analysis, it is for the Court to determine whether the constitutional guarantee has been infringed in a given case. And the Court must scrutinize with scrupulous care restrictions affecting free communication in the conduct of elections foR political office for it is in that area that the guarantee fulfils its primary purpose ((99) "(T)he constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office": Monitor Patriot Co. v. Roy (1971) 401 US 265, per curiam, at p 272; Buckley v. Valeo (1976) 424 US 1, at p 15. The Court was there speaking of the First Amendment which is broader in scope than the implied guarantee in the Australian Constitution but the comment applies to our situation.). Is Part IIID valid?

49. The restrictions imposed in the present case are expressed so as to appear to fall into the second, rather than the first, class of case discussed above. The restrictions are imposed upon television and radio broadcasting. But the law which imposes the restrictions is not one of general application; the law is specifically directed at, and prohibits, the broadcasting, in connection with the electoral process, of matters relating to public affairs and political discussion, including political advertisements. So, in conformity with what I have already said, notwithstanding the legislative judgment that the restrictions are necessary for achieving the ends identified earlier in these reasons, the Court must scrutinize the validity of Pt IIID with scrupulous care.

50. In approaching the respective interests in this case, I am prepared to assume that the purpose of Pt IIID is to safeguard the integrity of the political process by reducing pressure on parties and candidates to raise substantial sums of money, thus lessening the risk of corruption and undue influence. I am prepared also to assume that other purposes of Pt IIID are to terminate (a) the advantage enjoyed by wealthy persons and groups in gaining access to use of the airwaves; and (b) the "trivialising" of political debate resulting from very brief political advertisements. Moreover, I am prepared to accept that the need to raise substantial funds in order to conduct a campaign for election to political office does generate a risk of corruption and undue influence, that in such a campaign the rich have an advantage over the poor and that brief political advertisements may "trivialise" political debate.

51. Given the existence of these shortcomings or possible shortcomings in the political process, it may well be that some restrictions on the broadcasting of political advertisements and messages could be justified, notwithstanding that the impact of the restrictions would be to impair freedom of communication to some extent. In other words, a comparison or balancing of the public interest in freedom of communication and the public interest in the integrity of the political process might well justify some burdens on freedom of communication. But it is essential that the competition between the two interests be seen in perspective. The raison d'_tre of freedom of communication in relation to public affairs and political discussion is to enhance the political process (which embraces the electoral process and the workings of Parliament), thus making representative government efficacious.

52. The enhancement of the political process and the integrity of that process are by no means opposing or conflicting interests and that is one reason why the Court should scrutinize very carefully any claim that freedom of communication must be restricted in order to protect the integrity of the political process. Experience has demonstrated on so many occasions in the past that, although freedom of communication may have some detrimental consequences for society, the manifest benefits it brings to an open society generally outweigh the detriments. All too often attempts to restrict the freedom in the name of some imagined necessity have tended to stifle public discussion and criticism of government. The Court should be astute not to accept at face value claims by the legislature and the Executive that freedom of communication will, unless curtailed, bring about corruption and distortion of the political process.

53. As I pointed out earlier, Pt IIID severely restricts freedom of communication in relation to the political process, particularly the electoral process, in such a way as to discriminate against potential participants in that process. The sweeping prohibitions against broadcasting directly exclude potential participants in the electoral process from access to an extremely important mode of communication with the electorate. Actual and potential participants include not only the candidates and established political parties but also the electors, individuals, groups and bodies who wish to present their views to the community. In the case of referenda, oR at least some of them, the States would have important interests at stake and would be participants in the process.

54. It is said that the restrictions leave unimpaired the access of potential participants during an election period to other modes of communication with the electorate. The statement serves only to underscore the magnitude of the deprivation inflicted on those who are excluded from access to the electronic media. They must make do with other modes of communication which do not have the same striking impact in the short span of an election campaign when the electors are consciously making their judgments as to how they will vote.

55. It is also said that the protection given by s.95A to items of news, current affairs and comments on such items, and talkback radio programmes will preserve communication on the electronic media about public and political affairs during election periods. But access on the part of those excluded is not preserved, except possibly at the invitation of the powerful interests which control and conduct the electronic media. Those who are excluded are exposed to the risk that the protection given by s.95A may result in the broadcasting of material damaging to the cause or causes they support without their being afforded an opportunity to reply.

56. The replacement regime, which rests substantially on the provisions relating to the grant of free time, is weighted in favour of the established political parties represented in the legislature immediately before the election and the candidates of those parties; it discriminates against new and independent candidates. By limiting their access to a maximum of 10 peR 0011 cent of the free time available for allocation, Pt IIID denies them meaningful access on a non-discriminatory basis. As for persons, bodies and groups who are not candidates, they are excluded from radio and television broadcasting during election periods. The consequence is that the severe restriction of freedom of communication plainly fails to preserve or enhance fair access to the mode of communication which is the subject of the restriction. The replacement regime, though it reduces the expenses of political campaigning and the risks of trivialisation of political debate, does not introduce a "level playing field". It is discriminatory in the respects already mentioned. In this respect I do not accept that, because absolute equality in the sharing of free time is unattainable, the inequalities inherent in the regime introduced by Pt IIID are justified oR legitimate.

57. On this score alone, Pt IIID is invalid, apart from the prohibitions on broadcasting matter for or on behalf of the government, or a government authority, of the Commonwealth during the various election periods((100) ss.95B(1), 95C(3), 95D(1)). But it can scarcely be thought, s.95(2) notwithstanding, that those prohibitions were intended to operate alone in respect of each election period. Part IIID is therefore invalid in its entirety. Moreover, I regard the presence of s.95J as an obstacle to the validity of the Part. In my view, it is impossible to justify the validity of a regime which restricts freedom of communication in relation to the electoral process when the operation of the regime depends upon the making of regulations at the discretion of the Executive government according to unspecified criteria. The existence of the discretion leaves the Executive government at any given time with the option of invoking the Pt IIID regime or discarding it; in other words, the government of the day can decide which course suits it best. It is difficult to conceive of a compelling, even of a reasonable, justification for a regime restricting feedom of communication which confers such an advantage on the Executive government.

58. There being no reasonable justification for the restrictions on freedom of communication imposed by Pt IIID, the Part is invalid. In the light of my conclusion as to the indivisibility of freedom of communication in relation to public affairs and political discussion, the prohibitions in connection with all forms of election and referenda must fail. Despite the express intention in s.95(2) that the several provisions of the Part should operate to the extent to which they are capable of operating, severance is impossible. The free time provisions in Div.3 and the policy launch provisions in Div.4 cannot operate in isolation from the prohibitions and, in any event, it is the discriminatory effect of the free time provisions that is the principal reason for the invalidity of the regulatory scheme. No attempt was made in argument to sustain the validity of the prohibitions in Div.2 dissociated from the operation of the free time provisions. Nor, foR that matter, was any attempt made to support an independent valid operation for the provisions relating to Territory elections.

59. It is for the foregoing reasons that I participated in the making of the orders announced on 28 August 1992. They were:
Matter No. S5 of 1992

60. Demurrer overruled with costs.
Matter No. S6 of 1992

61. First paragraph of the demurrer of the first defendant overruled with costs.

BRENNAN J. Pt IIID of the Broadcasting Act 1942 (Cth) ("the Act") was introduced into the Act by the Political Broadcasts and Political Disclosures Act 1991 (Cth) ("the amending Act"). In substance, Pt IIID bans political advertising during election periods, whether the election be a Commonwealth, State, Territory or Local Authority election and during prescribed periods prior to voting on Commonwealth referenda.

2. The Bill for the amending Act was passed after reports by two Parliamentary Committees. The first report, entitled "Who pays the piper calls the tune", was prepared by the Parliamentary Joint Standing Committee on Electoral Matters in June 1989; the second report was a report on the Bill then before the Senate and it was prepared by the Senate Select Committee on Political Broadcasts and Political Disclosures in November 1991 ("the Senate Report"). The problem addressed by the first Report was summarized in its preface:
"The rising cost of television advertising time has
coincided with the growing use of that medium for political advertising. This has greatly increased the reliance of parties on corporate sponsorship. The Committee is concerned that heavy reliance by parties on such sponsorship risks the distortion of our open democratic system. The electoral system should ensure that large financial sponsors, having paid the piper, do not also call the tune. The wider membership of political parties should not lose its influence within the respective parties." The Report contained statistics of expenditure on political advertising showing, inter alia:

Expenditure on - Public Funding Broadcasters Publishers

1984 election: $4,437,374 $2,672,707 $7,806,777 1987 election: $9,172,815 $5,726,824 $10,298,657
In 1984, the last year in which printers' returns were available, expenditure on printing was of a much loweR order than expenditure on broadcasters and publishers. The Minister's second reading speech on the Bill for the amending Act in the House showed that expenditure by majoR political parties on broadcasting in the 1990 federal election rose to more than $15 million((101) House of Representatives, Parliamentary Debates (Hansard), 9 May 1991, p 3480.).

3. The amending Act bans not only advertising by political parties but also political advertising by charitable organizations. That ban was supported by the Minister in his second reading speech as a remedy for inequality in the financial strength of proponents and opponents concerned with particulaR issues. The Minister gave an example drawn from the 1990 elections. During that election period, expenditure on political broadcasting advertisements by persons other than political parties was $1.7 million. "Of that figure," said the Minister, "over $1.1m was expended by the logging industry, while the Australian Conservation Foundation spent just over $25,000 on broadcasting activity"((102) ibid). The view taken by the Government was put thus: "The reality is that only the rich can get their message across by ... means (of electronic advertising)"((103) ibid).

4. Of course, the political motivation for legislation is in itself immaterial to its constitutional validity. Nor is it necessary to resort to the legislative history of the amending Act in order to cast light on its interpretation. But the matters to which I have referred identify the perceived mischiefs at which Pt IIID was aimed. If Pt IIID is appropriate and adapted to the remedying of those perceived mischiefs, the legal question is whether the remedying of those mischiefs is a subject within the legislative power of the Parliament. Pt IIID is valid if it be a law for the elimination or reduction of factors that distort the system of representative democracy prescribed by the Constitution and does not stifle political discussion. Its validity is impugned on the ground that it offends a constitutional guarantee of freedom of communication to and among the Australian people.
A guarantee of freedom of communication

5. The first issue is whether there is any guarantee of freedom of communication implied in the Constitution. FoR reasons which I give in Nationwide News Ltd. v. Wills((104) unreported, published concurrently with this judgment on 30 September 1992), I would hold that the legislative powers of the Parliament are so limited by implication as to preclude the making of a law trenching upon that freedom of discussion of political and economic matters which is essential to sustain the system of representative government prescribed by the Constitution. To hold that the Constitution contains such an implication is not to state any very precise criterion for determining the validity of impugned legislation. The law under review in Nationwide News purported to suppress any comment calculated to bring the Australian Industrial Relations Commission into disrepute when the Commission had important governmental functions entrusted to it. The suppression was so broad that the overreaching of the limitation on legislative power was manifest. In this case, however, there is only a partial and temporary restriction on political advertising. The challenge to the validity of Pt IIID therefore calls for a closer analysis of the implied limitation placed on legislative power by the freedom of discussion needed to sustain the system of representative government. That freedom includes, but is not confined to, a freedom to communicate information and ideas.

6. It is convenient in the context of Pt IIID to speak of the implied limitation as a freedom of communication, for the terms are reciprocal: the extent of any relevant limitation of legislative power is the scope of the relevant freedom. But, unlike freedoms conferred by a Bill of Rights in the American model, the freedom cannot be understood as a personal right the scope of which must be ascertained in order to discover what is left foR legislative regulation; rather, it is a freedom of the kind for which s.92 of the Constitution provides: an immunity consequent on a limitation of legislative power. The power cannot be exercised to impair unduly the freedom of informed political discussion which is essential to the maintenance of a system of representative government. Whether that freedom is regarded as an incident of the individual right to vote((105) See Ashby v. White (1703) 2 Ld Raym 938 (92 ER 126); Judd v. McKeon (1926) 38 CLR 380, at p 385) or as inherent in the system of representative and responsible government prescribed by ChI of the Constitution, it limits the legislative powers otherwise conferred on the Parliament. The freedom begins at a boundary varying with the subject matter of each law. In an extreme case - for example, a law imposing wartime censorship - the freedom to discuss matters of defence may be virtually eliminated. The variable boundary of the freedom follows from the consideration that, in order that a law may validly restrict a freedom of communication about political or economic matters, the restriction must serve some other legitimate interest and it must be proportionate to the interest to be served. Thus, a law which (being otherwise within power) forbids the publication of fraudulent or obscene material, or of seditious utterances or of defamatory matter without justification or excuse, or of advertisements for dangerous or prohibited drugs, is a law which trespasses upon absolute freedom to communicate, but it is a valid law provided the restrictions imposed by the law are proportionate to the interest which the law is calculated to serve. The proportionality of the restriction to the interest served is incapable of a priori definition: in the case of each law, it is necessary to ascertain the extent of the restriction, the nature of the interest served and the proportionality of the restriction to the interest served.
The extent of the restriction

7. Restrictions on political advertising are imposed by ss.95B, 95C and 95D of the Act. Each of those provisions is subject to s.95A which provides:
" (1) Nothing in this Part prevents a broadcaster from

broadcasting:

(a) an item of news or current affairs, or a comment on any such item; or

(b) a talkback radio program. (2) Nothing in this Part prevents the holder of a public radio licence who provides a service for visually handicapped persons from broadcasting any material that he or she is permitted to broadcast under section 119AB. (3) Nothing in this Part prevents a broadcaster from broadcasting an advertisement for, or on behalf of, a charitable organisation if:

(a) the advertisement is aimed at promoting the objects of the organisation; and

(b) the advertisement does not explicitly advocate voting for or against a candidate in an election or a political party.

(4) Nothing in this Part prevents a broadcaster from broadcasting public health matter, whether by way of advertisement or otherwise. (5) In this section: 'charitable organisation' means a public organisation whose objects are to benefit the public through the relief of poverty, or the advancement of education, religion, public health or science; 'public health matter' means any matter relating to public health, other than matter that: (a) directly or indirectly promotes or criticises a particular public health system; or (b) explicitly advocates voting for or against a candidate in an election or a political party."

The term "broadcaster" is defined to mean((106) By s.4 of the Act, amended by s.5 of the amending Act.) the Australian Broadcasting Corporation, the Special Broadcasting Service Corporation or a television or radio licensee. The effect of s.95A is to leave the electronic media unaffected during an election period((107) As defined by s.4 of the Act, amended by s.5 of the amending Act.) in the broadcasting of news and current affairs programmes, commentaries on items in those programmes, talk-back programmes, public health broadcasts and broadcasts for charities (provided, in the last two instances, the broadcasts are not political in the sense of being directed to the formation of voters' opinions in an election). Broadcasters are free to broadcast "exempt matter" as defined in s.4. That definition covers the kind of advertising that flows from the performance of the ordinary functions of government having no political reference.

8. Sections 95B, 95C and 95D then impose restrictions on political advertising by means of the electronic media during election periods. These sections call for separate consideration for they purport to suppress political advertising during different election periods: s.95B relates to elections to the Parliament of the Commonwealth and Commonwealth referenda, s.95C relates to elections to the legislature or to a local government authority of a Territory and s.95D relates to elections to the Parliament or to a local government authority of a State. Each of these sections is said to be supported by the Parliament's power over broadcasting (s.51(v) of the Constitution), but other and differing considerations affect the validity of each section. Section 95B is said to be supported by the Parliament's poweR 0013 over Commonwealth elections (ss.10, 29, 31, 51(xxxvi) and (xxxix) of the Constitution). Section 95C also attracts the Territories power: s.122. Section 95D is attacked on the grounds that it interferes with the organs of the States and impairs the capacity of the Executive Governments of the States to function. A further argument on behalf of the States is that the ban on political advertising by States, which is imposed by each of ss.95B(3), 95C(4) and 95D(3), singles out the States and their authorities for discriminatory treatment. It is convenient to consider the validity of ss.95B, 95C and 95D in turn, and then to mention briefly the ban on political advertising by States. The first subject for examination is whether s.95B, which imposes restrictions on political advertising by means of the electronic media during election periods relating to elections to the Commonwealth Parliament and Commonwealth referenda, is a valid law of the Commonwealth. That section provides:
" (1) A broadcaster must not, during the election period
in relation to an election or a referendum, broadcast any matter (other than exempt matter) for or on behalf of the government, or a government authority, of the Commonwealth. (2) A broadcaster must not, during the election period in relation to an election or a referendum, broadcast a political advertisement for or on behalf of a government, or a government authority, of a Territory. (3) A broadcaster must not, during the election period in relation to an election or a referendum, broadcast a political advertisement for or on behalf of a government, or a government authority, of a State. (4) 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. (5) Where the election concerned is a by-election, this section is taken to apply only to broadcasting: (a) in the case of a broadcast made as part of a broadcasting service without a service area - to the area in which the relevant electoral district, or any part of it, overlaps with the area in which the broadcasting service is normally received; and (b) 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. (6) In this section: 'election' means 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 exempt 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 or otherwise before electors in that election; (d) the government, the opposition, or a previous government or opposition, of the Commonwealth;

(e) a member of the Parliament of the Commonwealth; (f) a political party, or a branch or division of a political party."

During an election period, no government or government authority of the Commonwealth, of a State or of a Territory and no other person is permitted to broadcast or to authorize the broadcast of a political advertisement. That is a direct restriction on communications of a political kind at a time when discussion of politics is of great importance to an electorate which is shortly to go to the polls. As Windeyer J. remarked in Australian Consolidated Press Ltd. v. Uren((108) (1966) 117 CLR 185, at p 210):

"Freedom at election time to praise the merits and policies of some candidates and to dispute and decry those of others is an essential of parliamentary democracy."

However, s.95B does not affect the print media nor - by reason of s.95A - does it inhibit the dissemination of news, news commentary or any material other than political advertising by the electronic media. The interest to be served by the restriction

9. By eliminating the opportunity, s.95B eliminates the practical need to engage in the most expensive form of media advertising available to influence voter opinion in an election campaign. The restriction on political advertising as a means of reducing the expenditure on election campaigns is not a novel experiment unique to Australia. The Senate examined the position in otheR liberal democracies and found that the position was "complex", being affected by the regime governing broadcasting in each country. In some countries, no advertising is permitted; in others no political advertising is permitted, or none during specified periods. It appears that, for one reason or another, paid political advertising is not permitted during election times in the United Kingdom, Ireland, France, Norway, Sweden, Denmark, Austria, The Netherlands, Israel oR Japan. Paid political advertising is permitted during election periods in Germany, Canada (for 28 days only), the United States and New Zealand. It is also permitted in Switzerland but "there is little advertising by political parties on the electronic media due to the high costs involved"((109) Senate Report, p 123). Many of the countries which ban paid political advertising during election times have constitutions guaranteeing the right to freedom of expression((110) Denmark, Ireland, Japan, The Netherlands, Norway and Sweden.). Although Art.10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms guarantees a freedom to "impart information and ideas", a challenge to the ban on political advertising on British television failed((111) X and the Association of Z v. United Kingdom (European Commission of Human Rights, 12 July 1971)). The European Commission of Human Rights held it to be evident that the freedom guaranteed by Art.10 "cannot be taken to include a general and unfettered right for any private citizen or organisation to have access to broadcasting time on radio and television in order to forward its opinion"((112) ibid., at p 88). It held that the recognition of a State's power to license broadcasting and television permitted the granting of licences which excluded political advertising.

22. It may be that the rights to convey and receive opinions, arguments and information conferred by ss.7 and 24 are not confined to the period of an election for the Senate and House of Representatives. It may be that the rights inherent in those sections are simply part of a general right of freedom of communication in respect of the business of government of the Commonwealth. In that connection it is significant that it was recognised early on that, by necessary implication, the Constitution gave rights of access to federal officials and records. In The Annotated Constitution of the Australian Commonwealth, published in 1901, Quick and Garran pointed out((352) p 958): "To be allowed to visit the seat of Government, to gain access to
Federal territories, to petition the Federal authorities, to examine the public records of the Federal Courts and institutions, are rights which, if not expressly granted, may be inferred from the Constitution, and which could not be taken away or abridged by the States any more than those directly and clearly conveyed." Similarly, members of this Court have recognised that the people of the Commonwealth have an implied right of access through the States for federal purposes which the States cannot impede except on grounds of necessity((353) R. v. Smithers; Ex parte Benson (1912) 16 CLR 99, at pp 108, 109-110; and see Crandall v. State of Nevada (1868) 73 US 35, at p 44.).

23. Furthermore, one of the conceptions of representative government is that members of Parliament have an obligation to listen to and ascertain the views of their constituents during the life of the Parliament. This conception strengthens the case for concluding that, by implication, the Constitution gives a general right of freedom of communication in respect of the business of government of the Commonwealth. But it is unnecessary for the purposes of this case to decide whether, by implication, the Constitution gives to the people of the Commonwealth such a general right of freedom of communication. For the purpose of the present case, it is enough to hold that legislation such as that embodied in Pt IIID of the Act contravenes the right of the people to participate in the federal election process unless some compelling justification for its enactment can be established.

24. The Commonwealth contended that ss.7 and 24 of the Constitution go no further than requiring that the legislative powers vested in Parliament not be exercised inconsistently with the existence of representative government. It was then contended that representative democracy is descriptive of a wide spectrum of political institutions and processes, each different in countless respects yet answering to that generic description. Accordingly, so the Commonwealth contended, as long as the Parliament kept within the limits of that spectrum, it was for the Parliament and not the Courts to determine the merits of any particular method of regulating the electoral system. Invoking the rhetoric of the Engineers' Case((354) (1920) 28 CLR, at pp 151-152), the Commonwealth contended that the remedy against an erroneous exercise of legislative power lies in the ballot box and not in the Courts.

25. The short answer to the Commonwealth's contentions is that the powers conferred on the Commonwealth by s.51 of the Constitution are conferred "subject to this Constitution" and that the Constitution embodies a system of representative government which involves the conceptions of freedom of participation, association and communication in respect of the election of the representatives of the people. UndeR the Constitution of the Commonwealth of Australia, those freedoms have been elevated to the status of constitutional rights. The powers conferred by s.51 of the Constitution give the Commonwealth no absolute power to exclude electors, candidates, or information from the federal electoral process.
Compelling justification

26. The constitutional rights identifiable in ss.7 and 24 of the Constitution - freedom of participation, association and communication - exist so that the people of the Commonwealth can make reasoned and informed choices in respect of the candidates who offer themselves foR election. Laws which interfere with the flow of political information or a category of political information simply because it is political information are an interference with the constitutional rights conferred by those sections. However, the rights identifiable in ss.7 and 24 are not absolute rights. They are rights conferred for the purpose of enabling the electors to make a true choice in a free and democratic society. They may be regulated by other laws which seek to achieve an honest and fair election process. Thus, the power conferred by ss.10, 29, 31 and 51(xxxvi) and (xxxix) of the Constitution to make laws with respect to the federal electoral process may be used to prevent fraud, intimidation, corruption and misleading information in an election without infringing the rights conferred by ss.7 and 24. In Smith v. Oldham, this Court held that the powers conferred by ss.51(xxxvi) and (xxxix) authorised a law requiring any written matteR commenting upon any candidate or political party or the issues arising in an election to be signed by the author together with his or heR true name and address. All members of the Court accepted that these powers gave the Commonwealth legislative authority to make laws foR the purpose of protecting elections for the Parliament of the Commonwealth against bribery, intimidation and fraud((355) (1912) 15 CLR, at pp 358, 360, 362, 363). However, no reason exists foR confining the Commonwealth's regulatory power over federal elections to the prevention of dishonesty.

27. Nevertheless, I am unable to accept the dictum of this Court in Fabre v. Ley((356) (1972) 127 CLR , at p 669) when it said that "the legislative power of the Parliament (in respect of an election) is not subject to any restriction other than that which flows from s.41 of the Constitution". No reference was made in that case to the provisions of ss.7 and 24. It was not concerned with any question of freedom of communication but with the validity of a law requiring a candidate for the House of Representatives to deposit "One hundred dollars, in legal tender or in a banker's cheque".

28. In considering the scope of the Commonwealth's regulatory power oveR elections, a distinction must be drawn between laws which restrict the freedom of electoral communications by prohibiting or regulating theiR contents and laws which incidentally limit that freedom by regulating the time, place or manner of communication. "(R)easonable time, place, and manner regulations, which do not discriminate among speakers oR ideas"((357) Buckley (1976) 424 US, at p 18) are not inconsistent with the conceptions of representative government if those regulations are designed to protect some competing aspect of the public interest and the restraint on freedom of communication is not disproportionate to the end sought to be achieved. But laws which seek to prohibit oR regulate the content of electoral communications are in a different category. While the rights which ss.7 and 24 confer are not absolute, they are so fundamental to the achievement of a true choice by the electorate that a law enacted pursuant to the powers conferred by s.51 which seeks to prohibit or regulate the content of electoral communications can only be upheld on grounds of compelling justification.
Section 95B

29. Subject to s.95A and the free time provisions of the legislation, s.95B of the Act prevents the broadcasting or televising of any information concerning political matters from those standing foR election at a federal election or from those persons, groups, organisations and corporations who, although not standing foR election, wish to exercise their democratic right to influence the outcome of the election. Political matter is defined to mean "matteR intended or likely to affect voting in the election or referendum concerned" or "matter containing prescribed material" other than exempt matter. "Exempt matter" is defined in s.4 of the Act. Prescribed material is defined to mean:
"material containing an express or implicit reference to, or

comment on, any of the following: (a) the election or referendum concerned; (b) a candidate or group of candidates in that election; (c) an issue submitted or otherwise before electors in that election; (d) the government, the opposition, or a previous government or opposition, of the Commonwealth;

(e) a member of the Parliament of the Commonwealth; (f) a political party, or a branch or division of a political party."

30. Consequently, s.95B prevents the electors from receiving political information, comment and argument which is, or at least could be, vital to the choosing of the members of the House of Representatives and the Senate. It precludes access to two of Australia's most frequently used mediums of communication and thereby significantly hampers the ability of candidates and other interested parties from effectively communicating information, opinions and arguments to the electorate. Indeed, according to the Report by the Senate Select Committee on Political Broadcasts and Political Disclosures((358) Political Broadcasts and Political Disclosures Bill 1991, (NovembeR 1991), p 25), "there was broad agreement" that, although television was the most expensive advertising medium, it was also the most effective.

31. It is not to the point, as the Commonwealth argued, that Pt IIID leaves open numerous campaign techniques and methods to candidates and other participants in the election process to get their ideas, policies, arguments and opinions across to the electorate. The effect of Pt IIID is to prevent the participants in the election from putting the content of electoral communications to the electorate by means of advertisements on radio and television - a means of communication widely used in the Australian community for the dissemination of information, ideas, arguments and opinions. Parliament may regulate the time, place or manner of electoral communications. It may even prohibit the content of an electoral communication if compelling justification exists. Defamatory, seditious and treasonable statements provide examples of communications which may be prohibited. But having regard to the conceptions of representative government, Parliament has no right to prefer one form of lawful electoral communication oveR another. It is for the electors and the candidates to choose which forms of otherwise lawful communication they prefer to use to disseminate political information, ideas and argument. Their choices are a matter of private, not public, interest. Their choices are outside the zone of governmental control.

32. Nor is it to the point that s.95A permits the broadcasting and televising in some circumstances of matter which would otherwise be prohibited by Pt IIID. Section 95A provides that nothing in Pt IIID prevents a broadcaster from broadcasting a talkback radio program oR an item of news or current affairs or a comment on any such item. But this is a matter of no relevance. Leaving aside the difficulty of interpreting the phrase "an item of news or current affairs" in the context of this legislation, s.95A restores only part of the freedom of expression and communication which other sections in Pt IIID take away. Worse still, it permits discrimination among those who are prohibited by Pt IIID from putting their views to the electorate through political advertisements on radio and television. While the effect of the section is that some members of the electorate will be able to get their ideas, policies, arguments and comments before radio and television audiences, it does not follow that those wishing to put the opposite point of view will necessarily be able to do so. WhetheR or not they are able to do so in time provided by the licensees of radio and television stations will depend entirely upon the decisions of the licensees and those who control the content of the relevant programs.
The free time and policy launch provisions

33. The free time provisions of Pt IIID grant political parties with representatives in Parliament and political parties contesting the election with at least a prescribed number of candidates the right to make "an advertisement that consists of words spoken by a single speaker (without dramatic enactment or impersonation) accompanied, where the advertisement is televised, by a transmitted image that consists of the head and shoulders of the speaker"((359) s.95G(a)). The legislation also gives other political parties, groups and candidates the right to apply to the Australian Broadcasting Tribunal for the grant of free time to make such an advertisement. However, the free time rights are restricted: they do not apply to an election until regulations are made working out, among other things, the total free time for that election; they are heavily weighted in favour of the political parties already represented in Parliament - 90 per cent of the time being allocated to these parties; and they are only conferred on candidates and their parties or groups. State and Territory governments, employer and employee associations, business, manufacturing and rural interest groups and public interest organisations as well as the general public are excluded from the use of the free time allocations. When the Bill which became the present Act was introduced into the Parliament, it contained no free time provisions. Significantly, in the course of the Second Reading Speech, the Minister said((360) Commonwealth Parliamentary Debates, House of Representatives, 9 May 1991, p 3478): "The Government has rejected the proposal because it believes that
the allocation of time to parties would be inequitable and administratively impracticable. Free time would unfairly advantage the major political and incumbent parties."

34. The comments which I have made about the free time provisions of Pt IIID are equally applicable to Div.4 of the Act which deals with policy launches.
Validity

35. Consequently, even when s.95A and the free time and policy launch provisions are taken into account, s.95B represents a constitutionally unacceptable interference with the rights of the electors to be informed of the policies and issues involved in a federal election and the merits and demerits of those policies and issues. As Windeyer J. pointed out in Australian Consolidated Press Ltd. v. Uren((361) (1966) 117 CLR 185, at p 210): "Freedom at election time to praise the merits and policies of
some candidates and to dispute and decry those of others is an essential of parliamentary democracy." The contentions of the Commonwealth

36. In supporting the validity of Pt IIID, the Commonwealth contended that the Parliament could reasonably make the political assessment that the legislation is an appropriate and effective means of dealing with the burgeoning cost of using the electronic media for political campaigning at election time. In moving that the Bill be read a second time, the Minister said((362) Commonwealth Parliamentary Debates, House of Representatives, 9 May 1991, p 3479:): "The prohibition of the broadcasting of political advertising is
directed squarely at preventing potential corruption and undue influence of the political process. The Government is satisfied that the proposals are a necessary and proportionate response to this threat and do not constitute a breach of our international obligations." However, the potential for or even the existence of corruption and undue influence in the political process does not amount to compelling justification for the infringements of the constitutional rights of the electors brought about by Pt IIID. If the electoral process has been, or is likely to be, corrupted by the cost of television and radio advertising, means less drastic than the provisions of Pt IIID are available to eradicate the evil. Unconvincing is the claim that, subject to s.95A and the free time and policy launch provisions of Pt IIID, a blanket ban on electronic political advertising is needed, oR for that matter would be effective, to prevent wealthy contributors from corrupting the electoral process.

37. If the Australian political process can be corrupted by the cost of political advertising, those bent on corrupting that process will not lack opportunities to achieve their ends even if electronic political advertising is prohibited during an election period. As the Supreme Court of the United States pointed out in Buckley((363) (1976) 424 U.S., at p 19), "virtually every means of communicating ideas in today's mass society requires the expenditure of money". Moreover, on this aspect of the justification of the legislation, it needs to be kept in mind that it is not the content of the publications which is the perceived evil; the perceived evil is the conduct of contributors and political officials in colluding to give political preference oR favour in return for campaign contributions. The creation of special offences, disclosure of contributions by donors as well as political parties, public funding, and limitations on contributions are but some of the remedies available to overcome the evil which arises not from the giving of information to the electorate or its content but from the conduct of contributors and political officials.

38. In supporting the validity of the legislation, the Commonwealth also relied on the statement of the Minister that the "exorbitant cost of broadcast advertising precludes the majority of the community and all but the major political parties and large corporate interests from paid access to the airwaves"((364) Commonwealth Parliamentary Debates, House of Representatives, 9 May 1991, p 3479). But, accepting that this is so, the need for a "level playing field" cannot justify legislation which bans all political advertising on radio and television whether paid for or not. Still less can it justify legislation which not only bans all political advertisements but through the free time provisions of Pt IIID favours the sitting members and their political parties at the expense of the views of those who do not hold political power.

39. Moreover, before legislation such as Pt IIID could be upheld on the "level playing field" theory, it would need to be demonstrated by acceptable evidence, and not merely asserted, that, by reason of theiR practical control of the electronic media, some individuals and groups so dominate public discussion and debate that it threatens the ability of the electors to make reasoned and informed choices in electing their parliamentary representatives. By itself, domination of the electronic media is not a constitutionally compelling justification for banning the broadcasting of political matter at federal elections any more than a major newspaper accepting advertisements from only one political party would justify banning the publication of political advertisements in that newspaper during the election period.

40. The Commonwealth also contended that because restrictions on political advertising were not seen as inconsistent with parliamentary democracy in many of the recognised democracies, the provisions of s.95B were not inconsistent with the representative democracy which the Constitution embodies. Paid political advertising in the electronic media is prohibited or restricted by various mechanisms in a number of democracies including, for example, Austria, Belgium, Denmark, Finland, France, Ireland, Israel, Italy, Japan, the Netherlands, Norway, Sweden, Switzerland and the United Kingdom. In some democracies including Canada, Ireland, Israel and the United Kingdom, legislation prohibits or restricts paid political advertising. The argument on behalf of the Commonwealth pointed out that all the foregoing countries except Switzerland are parties to the International Covenant on Civil and Political Rights; that the European countries with the exception of Finland are also parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms; and that Canada, Denmark, Ireland, Japan, the Netherlands, Norway and Sweden have express constitutional provisions guaranteeing the right to freedom of expression. Moreover, the Commonwealth stated that it "does not appear that the practice of these States has been criticised before the Human Rights Committee established under the Covenant, nor successfully challenged before the European Court of Human Rights". How then, it was asked, could the provisions of Pt IIID be seen as inconsistent with the concept of a representative democracy?

41. The answer to that rhetorical question lies in the different contexts in which the guarantees of freedom of expression operate in those countries and in Australia. The right to freedom of expression in the instruments to which the Commonwealth drew attention is a general right not limited to any particular subject matter. Moreover, it is a right which is expressed to be subject to the right of the legislature to pass laws for various specified purposes. The right of freedom of communication derived from ss.7 and 24 of the Commonwealth Constitution, on the other hand, is a paramount right given for the limited purpose of enabling the people of the Commonwealth to choose their representatives in the Federal Parliament. Such power as the Commonwealth has is subject to and not superior to the right of freedom of communication which ss.7 and 24 confer. No valid analogy exists between the instruments to which the Commonwealth referred and the Commonwealth Constitution.

42. A more valid analogy would be an instrument on which the Commonwealth placed no reliance - the Constitution of the United States of America. It is a more valid analogy because, like ouR Constitution, the legislative power of the central government to control elections is subject to the First Amendment guarantee of freedom of speech. In Mills v. Alabama((365) (1966) 384 US 214, at p 219), the Supreme Court said of a law that made it an offence foR the editor of a paper to publish an editorial on election day urging people to vote a certain way that it would be "difficult to conceive of a more obvious and flagrant abridgment of the constitutionally guaranteed freedom of the press". In Buckley, the Supreme Court held unconstitutional laws imposing restrictions on campaign expenditures by various people notwithstanding that the object of the laws was to prevent the rich from corrupting the political process.

43. Accordingly, s.95B(4) is invalid. Notwithstanding s.95(2) which states that 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", it must follow that sub-ss.(1), (2) and (3) of s.95B fall with sub-s.(4). If ss.95B(1)-(3) were to stand although ss.95B(4) was invalid, the Commonwealth, the States, the Territories and their authorities would be precluded from publishing the various classes of matter specified in those sub-sections although the rest of the community would be free to publish political matter on radio and television. It cannot be accepted that the Parliament intended the section to have a different practical operation upon those governments and their authorities from that which it would have had if the whole section was valid((366) See Strickland v. Rocla Concrete Pipes Ltd. (1971) 124 CLR 468, at p 493). Nor can it be accepted that it was the purpose of s.95(2) that a provision of Pt IIID should stand although it would have a different practical operation after the invalidation of another provision of that Part.
Does Pt IIID represent a substantial interference with the functioning of the States?

44. In my opinion, the provisions of s.95D(3) and (4) are invalid in so far as they operate to prohibit the advertising of political matter in an election to a State Parliament or to a local government authority of a State. They are invalid because their immediate object is to control the States and their people in the exercise of theiR constitutional functions.

45. At federation, each of the colonies had its own legislature and executive, governed and controlled by a Constitution, based on the institutions of representative government and responsible government. The terms of ss.106 and 107 of the Constitution necessarily give rise to the inference that, subject to the alteration of the Constitution under s.128, the States are to continue as independent bodies politic with their own Constitutions and representative legislatures. Section 106 provides: "The Constitution of each State of the Commonwealth shall, subject
to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State." Section 107 provides:

"Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be."

46. To be consistent with the constitutional premise of the States continuing as independent bodies politic with their own Constitutions and representative legislatures, a power conferred by s.51 of the Constitution should not be construed as authorising the Commonwealth to make a law whose immediate object is to interfere with the electoral processes authorised by those Constitutions unless the contrary intention is plainly evident in the section. The powers conferred by s.51 are conferred "subject to this Constitution". The inference to be drawn from the continuance of the States as independent bodies politic with their own Constitutions and representative legislatures is that, subject to a plain intention to the contrary, the powers of the Commonwealth do not extend to interfering in the constitutional and electoral processes of the States. It is for the people of the State, and not for the people of the Commonwealth, to determine what modifications, if any, should be made to the Constitution of the State and to the electoral processes which determine what government the State is to have. The use of a Commonwealth power to make a law which "discloses an immediate object of controlling" the processes by which the people of the States elect their governments in accordance with their Constitutions should be seen as not "within the true ambit of the Commonwealth legislative power"((367) Melbourne Corporation v. The Commonwealth (1947) 74 CLR 31, at p 79).

47. In Melbourne Corporation v. The Commonwealth, the Court held that the power conferred by s.51(xiii) to make laws with respect to banking did not authorise a law which provided that except with the consent in writing of the Treasurer "a bank shall not conduct any banking business for a State or for any authority of a State, including a local government authority". Dixon J. said((368) ibid., at p 81) that the "federal system itself is the foundation of the restraint upon the use of the power to control the States". His Honour went on to say((369) ibid., at p 83) that: "the considerations upon which the States' title to protection
from Commonwealth control depends arise not from the character of the powers retained by the States but from their position as separate governments in the system exercising independent functions. But, to my mind, the efficacy of the system logically demands that, unless a given legislative power appears from its content, context or subject matter so to intend, it should not be understood as authorizing the Commonwealth to make a law aimed at the restriction or control of a State in the exercise of its executive authority. In whatever way it may be expressed an intention of this sort is, in my opinion, to be plainly seen in the very frame of the Constitution."((370) See also ibid., at pp 55, 70, 99; Victoria v. The Commonwealth (1971) 122 CLR 353, at pp 411, 424; The Commonwealth v. Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1, at pp 139-140, 214, 280-281)

48. Similarly, in Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation((371) (1982) 152 CLR 25, at p 93), Mason J. said that unless the nature of a specific poweR otherwise indicates, a Commonwealth power should be construed so as not to "inhibit or impair the continued existence of the States oR their capacity to function".

49. If the use of a Commonwealth power was valid although its immediate object was to control some aspect of the electoral processes of the State, the functioning of the States as independent bodies politic with their own Constitutions and representative legislatures would be threatened. To use the powers of the Commonwealth to substantially control the electoral processes of the States requires no ingenuity. The postal, telephonic, corporation and interstate commerce powers, as well as the broadcasting and television powers, alone, or in combination, enable the Commonwealth to prevent or regulate the dissemination of political and electoral information to such an extent that the Commonwealth, and not the States, could substantially control the input of information into the State electoral processes. The possibility that a power may be abused is ordinarily no ground foR reading down the subject-matter of a Commonwealth power. But it is not irrelevant when the question is whether a Commonwealth power should be construed in a way which affects or interferes with the States in their "position as separate governments in the system exercising independent functions"((372) Melbourne Corporation (1947) 74 CLR, at p 83).

50. In accordance with these principles, s.51(v) of the Constitution should not be read as authorising a law whose immediate object is to control the electors of the States in performing functions which are assigned to them by the Constitutions of the States. Even though the law may be a law with respect to a subject-matter described in that paragraph, laws made under s.51(v) are made "subject to this Constitution" and cannot operate in respect of areas which the Constitution withdraws from the operation of Commonwealth legislative power.

51. Section 95D(3) and (4) are laws aimed at controlling the States and their people in the performance of their functions under the Constitutions of the States. Those sub-sections prohibit State governments, candidates for office in State elections and other interested parties in State elections from using an otherwise lawful medium to put to the electorate information, ideas, argument and comment "intended or likely to affect voting in the election concerned". For the reasons which I gave in discussing the operation of s.95B, s.95D(3) and s.95D(4) constitute an unacceptable interference with the functions and responsibilities of the people and officials of the States under their Constitutions.

52. Section 95D(4) is invalid, therefore, in so far as it applies to elections for the Parliaments of the State. Section 95D(3) is also invalid. In so far as it applies to the State holding the election in question, it is "a law aimed at the restriction or control of a State in the exercise of its executive authority"((373) ibid). It constitutes an interference with the functions of the State as an independent body politic. Moreover, since local government authorities are authorities of the States to which the States have delegated the authority to govern in respect of particular areas of the States, s.95D cannot validly apply to their elections. It follows that s.95D(3), in so far as it applies to the State holding an election, and s.95D(4) are invalid and not authorised by s.51(v) of the Constitution.

53. However, although there is nothing to stop the Parliament from forbidding a broadcaster from broadcasting matter on behalf of the government, or a government authority, of the Commonwealth during a State or local government election, it is difficult to accept that the Parliament intended to bind the Commonwealth if s.95D(3) and (4) could not validly apply to State elections. Accordingly, s.95D(1) cannot be severed from sub-ss.(3) and (4) and is also invalid. Likewise, it is difficult to accept that the Parliament intended to prevent broadcasters from broadcasting political advertisements during a State election period on behalf of the governments or government authorities of the Territories and other States if s.95D(3) and (4) could not validly apply to State elections. Consequently, ss.95D(2) and 95D(3) are also wholly invalid.
The free time and policy launch provisions

54. It is a necessary consequence of the invalidity of ss.95B and 95D that the free time and policy launch provisions of Pt IIID are also invalid in so far as they apply to referendums and federal, State and local government elections. Notwithstanding s.95(2) of the Act, the provisions of Divs 3 and 4 concerning free time and policy launches cannot be severed from ss.95B and 95D in their application to federal elections and referendums and State and local government elections. It is manifest that the free time and policy launch provisions were intended to ameliorate the general prohibition on political advertising enacted by ss.95B-95D. They were not intended to operate independently of the prohibition on political advertising.

55. Because the free time and policy launch provisions fall with ss.95B and 95D, it is strictly unnecessary on this branch of the case to decide whether the free time and policy launch provisions constitute an acquisition of property otherwise than on just terms contrary to s.51(xxxi) of the Constitution. But since it is necessary for me to do so on the question whether the free time and policy launch provisions are valid in their application to the Territories, I should indicate that those provisions do not contravene s.51(xxxi) of the Constitution. In reaching that conclusion, I have had the advantage of reading the judgment of Brennan J. I agree with his Honour's reasons on the point.
The Territories

56. To support the validity of s.95C, the Commonwealth did not seek to rely on the power conferred by s.122 of the Constitution to "make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth". No doubt, the reason that the Commonwealth did not rely on s.122 was that both internal territories have been granted self-government. In support of the validity of s.95C, the Commonwealth was content to rely on its powers undeR s.51(v) with respect to radio and television. If the Commonwealth had relied on s.122, I could see no ground for supposing that s.95C was invalid. There is nothing in s.122 or anywhere else in the Constitution which suggests that laws made by the Commonwealth for the government of a territory are subject to prohibitions or limitations arising from the concepts of representative government, responsible government or freedom of communication. Moreover, the decision of this Court in Teori Tau v. The Commonwealth((374) (1969) 119 CLR 564) establishes that the provisions of s.51(xxxi) do not control the operation of s.122 when it is used to acquire property in a territory.

57. Nevertheless, the power conferred on the Commonwealth by s.51(v) is sufficient to authorise the provisions of s.95C unless that power in its application to the Territories is the subject of some prohibition or limitation in the Constitution. Certainly, there is no express prohibition or limitation. Nor can I see any implied prohibition oR limitation. Having regard to the existence and terms of s.122 of the Constitution, it is impossible to suggest that the Constitution impliedly forbids the powers conferred on the Commonwealth, including s.51 powers, from being used in a way which would interfere with the functioning of Territorial governments. Furthermore, the prohibitions in ss.7 and 24 are not applicable because they apply only to federal elections. Finally, nothing in the Constitution suggests to my mind that there is any implied right of freedom of expression oR communication within a Territory or any right in a Territory arising from the institutions of representative government and responsible government. Accordingly, s.95C is a valid law of the Commonwealth.

58. I have already expressed the view that the free time and policy launch provisions of Pt IIID do not contravene s.51(xxxi) of the Constitution. It follows that Pt IIID is valid in its application to the Territories. There is no difficulty in severing the invalid provisions of Pt IIID from the provisions of the Part in so far as it applies to the Territories.
Orders

59. In Matter No. S5 of 1992, I would overrule the demurrer except in relation to the application of Pt IIID to the Territories. In MatteR No. S6 of 1992, I would make the same order in respect of the first paragraph of the demurrer.

Orders

Matter No. S5 of 1992
Demurrer overruled with costs. Matter No. S6 of 1992 First paragraph of the demurrer of the first defendant overruled with costs.