Terry Cameron v Andrew Kingsley Becker No. SCGRG 95/42 Judgment No. 5149 Number of Pages 23 Constitutional Law (1995) 64 Sasr 238
[1995] SASC 5149
•5 July 1995
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA BOLLEN(1), OLSSON(2) AND LANDER(3) JJ
CWDS
Constitutional law - operation and effect of the Commonwealth constitution - general matters - Appeal against conviction for offence under s 113Electoral Act 1985 - electoral advertisement - inaccurate and misleading.
Proudman v Dayman type defence - existence of an honest and reasonable belief in a state of facts - nothing in s 113 precludes Proudman v Dayman defence, not withstanding subsection (2) - evidence did not support such a defence - belief not reasonable.
Freedom of public discussion as to matters of political significance - not an absolute freedom - does not involve right to disseminate false or misleading material.
Electoral Act 1985ss 113, 124. Evans v Crichton-Browne (1981) 147 CLR 169; Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745; Australian Capital Television Pty Limited and Others v Commonwealth of Australia (1992-93) 177 CLR 106; Theophanous v Herald and Weekly Times Ltd (1994) 68 ALJR 713; Stephens v Western Australian Newspapers Ltd (1994) 68 ALJR 765; Cunliffe v The Commonwealth (1994) 68 ALJR 791 and Smith and Others v Oldham (1912-13) 15 CLR 355, applied. Davis v Bates (1986) 43 SASR 149 and Proudman v Dayman
(1941) 67 CLR 536, discussed.
HRNG ADELAIDE, 5-6 May 1995 #DATE 5:7:1995 #ADD 8:9:1995
Counsel for appellant: Mr T Stanley with
Ms C Sullivan
Solicitors for appellant: Johnston Withers
Counsel for respondent Becker: Mr B Selway QC
with Mr A Shackley
Solicitors for respondent Becker: Crown Solicitor
Counsel for intervener Attorney-General: Ms G E Ebbeck
Solicitors for intervener Attorney-General: Crown Solicitor
ORDER
Appeal dismissed.
JUDGE1 BOLLEN J I agree with the reasoning of Olsson J. I would dismiss the appeal. I specifically record that I, too, think that the "Proudman v Dayman defence" may be available in answer to a charge under s113 of the ElectoralAct 1985. Here the mistake was not reasonable.
JUDGE2 OLSSON J This is an appeal against the conviction of the appellant, by a stipendiary magistrate, of an offence under section 113 of the Electoral Act, 1985 ("the Act"), which has been reserved for the consideration of the Full Court. The primary relevant factual background is not in dispute, although certain issues arising from a proper interpretation of the factual material arise for consideration. The appellant also seeks to debate various questions of law in relation to his prosecution for an offence under the section.
2. The charge against the appellant averred that, on 8 November 1993, he authorised the publication of an electoral advertisement which contained a statement of fact when that statement was inaccurate or misleading to a material extent, contrary to the section above referred to.
3. It was proved by the respondent, who is the Electoral Commissioner for the State of South Australia, that Writs were duly issued to him, on 4 November 1993, to conduct a general election of the South Australian House of Assembly and an election in respect of vacancies in the Legislative Council on 11 December 1993.
4. At that time the appellant was the State Secretary of the South Australian Branch of the Australian Labour Party ("the ALP"). He was responsible for the day to day administration of that Party and, inter alia, was its election campaign director. The learned magistrate pointed out that he was quite experienced in that role, having co-ordinated at least two federal election campaigns, one State campaign and several by-elections.
5. It was his task to co-ordinate and oversee the various activities of the election campaign, including election advertisements. Whilst specialist assistance was procured in relation to advertising, the appellant was responsible for and approved the text of all material used, including that in the advertisement the subject of the charge against him.
6. It was not disputed that, on 8 November 1993, an electoral advertisement was, with the authority of the appellant, published on ADS Channel 10, on behalf of the ALP. It contained the statement:-
"The fact is the Brown Liberals have stated that any school
with less than three hundred students will be subject to
closure. We have 363 schools with less than 300 students
..."
7. The prosecutor alleged that the first sentence of such statement was misleading and inaccurate to a material extent, because the Brown Liberals had not made such a statement.
8. It was made to appear to the learned magistrate that the content of the advertisement could only be justified, if at all, on the basis of a prior radio interview statement made by Mr Lucas, as a spokesman for the Liberal Party, to the following effect:-
"... we've indicated here in South Australia that we're
certainly not going to be closing two hundred schools in
South Australia. If there are a small number of schools
that have got very small numbers of students, well then
under both Governments I guess there will continue to be a
small program of school closures, but we're not going to be
looking at schools with three hundred students in them."
9. Certainly, it was that statement which was specifically relied upon by the appellant in justification of the advertisement.
10. In contrasting the electoral advertisement with the Lucas statement, the learned magistrate commented:-
"... For the prosecution to prove the complaint it must
prove that the alleged statement is:
(1) inaccurate; and
(2) misleading and
(3) to a material extent.
'Inaccurate' is defined as 'incorrect' in words and phrases
legally defined - 3rd ed. at p406. In Holt v Cameron (1979)
22 SASR 321 King, CJ at 324 equates inaccurate with
incorrect.
The meaning of 'misleading' in the Shorter Oxford English
Dictionary is: 'that leads someone astray, that causes
error; imprecise, confusing, deceptive.'
The meaning of 'to a material extent' - to a substantial or
significant extent. Littlewood v Rolfe (1981) 2 AER 51 at
58. Minister for Immigration, Local Government and Ethnic
Affairs v Dela Cruz (1992) 110 ALR 367 at 371.
Thus the statement must be inaccurate and misleading to a
substantial or significant extent for a conviction.
Mr Stanley for the defence submitted that the intention of
Parliament was to prevent the publication of false
statements of fact of a substantial or significant nature in
electoral advertisements. It never intended to inhibit
vigorous political debate and discussion or fair comment on
relevant matters of political controversy in the context of
an election campaign. I am in total agreement with the
above assertions.
But then he submits that the advertisement is merely a
paraphrasing of the Lucas statement and that it conveys the
substance and effect of the Lucas statement, however it
merely places a negative emphasis upon it to achieve a
political effect in the context of a vigorous election
campaign. He says that the operative words in the
advertisement are 'will be subject to closure', which means
no more than that the Brown Liberals have stated that
schools with less than 300 students 'will be at risk' of
being closed. Thus, understood in this sense, the statement
is neither inaccurate nor misleading and it follows that the
complaint should be dismissed.
However, if one considers the Lucas statement as a whole and
compares that with the statement in the advertisement, it is
clear that the above submission is totally unfounded. The
advertisement is patently inconsistent with Lucas's
statement that the Liberals would be closing less than 200
schools. If the advertisement merely conveyed a message
that the ALP suspected or believed that any school with less
than 300 students would be subject to closure by the Brown
Liberals then I would regard that as fair comment in the
context of political debate during an election campaign.
However, the advertisement goes beyond a mere assertion of
suspicion about the true intent of the Lucas statement, it
goes further and published that as fact. What I consider
the operative words of the advertisement are 'the fact is
the Brown Liberals have stated that any school ...'.
Lucas's statement (even from the most general reading of it)
does not provide a proper basis for that assertion. The
Liberals never made such a statement. For these reasons I
am of the opinion that the statement of fact contained in
the advertisement is inaccurate and misleading to a
substantial or significant extent."
11. Those comments followed a prior conclusion by the learned magistrate that section 113 of the Act created a strict liability offence, in relation to which it was unnecessary to prove the existence of mens rea.
12. I pause at this point to note that the section is couched in the following terms:-
"113. (1) Where -
(a) an electoral advertisement contains a statement
purporting to be a statement of fact;
and
(b) the statement is inaccurate and misleading to a material
extent,
a person who authorized, caused or permitted the publication
of the advertisement shall be guilty of an offence.
Penalty:
(a) where the offender is a natural person - $1,000;
(b) where the offender is a body corporate - $10,000.
(2) It is a defence to a charge of an offence against
subsection (1) for the defendant to prove -
(a) that he took no part in determining the contents of the
advertisement;
and
(b) that he could not reasonably be expected to have known
that the statement to which the charge relates was
inaccurate and misleading.
(3) This section applies to advertisements published by any
means (including radio or television)."
13. That section is to be construed in light of an earlier statutory definition of the expression "electoral advertisement" as meaning an advertisement containing electoral matter. The phrase "electoral matter" is, in turn, defined as "matter calculated to affect the result of an election".
14. It is at once to be observed that section 113 confines its attention to electoral material containing a statement which purports to be one of fact. It does not focus, at all, on statements which are no more than statements of opinion.
15. In addressing the statutory defence created by subsection (2), the learned magistrate said:-
"Section 113(2) creates a defence to the charge under
sub-section (1). The onus of proving the defence lies upon
the defendant. The defendant must prove the two limbs of
the defence, i.e.:
(a) that he took no part in determining the contents of the
advertisement; and
(b) that he could not reasonably be expected to have known
that the statement to which the charge relates was
inaccurate and misleading.
The defendant cannot avail himself of this defence because
he admitted that he took part in determining the contents of
the advertisement. He approved the text of the
advertisement.
The defendant also raised the Common Law defence of honest
and reasonable mistake Proudman v Dayman (1941) 67 CLR 536.
Mr Stanley submitted that the defendant had a genuine and
honest belief that the advertisement was an accurate
statement of what Lucas had said. So that even if I found
as a matter of fact that the statement was inaccurate and
misleading to a material extent it was nevertheless open for
me to find that the defendant made a genuine and honest
mistake.
However, for the defence to succeed it is necessary that the
mistake should be reasonable as well as honest. Brambles
Holdings Ltd v Corey (1976) 15 SASR 270.
Having said that, I also hasten to point out that there is
no ultimate onus upon the defendant. The onus is on the
prosecution to exclude such belief.
In Mayer v Marchant (1973) 5 SASR 567 at 570 Bray, CJ
said: 'I think that before this defence falls to be
considered by a court in any particular case, the defendant
has to discharge an evidential onus by pointing to some
evidence, either in his case or that of the prosecution,
sufficient to raise it. Once that is done I think that the
ultimate onus of negativing it passes to the Crown. To put
it another way, it is sufficient for the defence to raise a
reasonable doubt about the proposition.'
Whether the defendant had any belief, reasonable or
otherwise, can be determined by an examination of both
the Lucas statement and the statement contained in the
advertisement."
16. Having contrasted the critical content of the impugned advertisement with the actual Lucas radio statement, the learned magistrate commented:-
"The contents of the advertisement are patently inconsistent
with Lucas's statement that the Liberals are 'not going to
be closing 200 schools in S.A.' The defendant admitted in
cross-examination that according to research undertaken in
the electorate on behalf of the ALP it was quite obvious
that the ALP was not popular with the electorate as a result
of the State Bank debacle and that all indications were that
the ALP would be trounced at the next election. The ALP
thus faced a most difficult election campaign, made even
more so by the fact that the Liberals had released very few
clear policy statements. So, as the defendant pointed out,
the election was held in 'a policy vacuum'. The defendant
and ALP were desperate to explore and get mileage out of
every Liberal statement made prior to or during the election
campaign. To this end, they were monitoring everything that
the Liberals said. They seized upon Lucas's statement as
being the first clear statement about the Liberal's
Education policy and about school closures. Thus, in the
context of the impending sense of urgency and desperation
among ALP ranks at the time of the making of the
advertisement, and on an examination of the defendant's
evidence and demeanour in his attempt to explain his belief
at the time, I have concluded that the defendant's belief,
if any, that the advertisement was an accurate statement of
what Lucas had said, could not possibly be genuine, and in
any case in the circumstances such mistaken belief could not
possibly be regarded as reasonable."
17. He then proceeded to consider a defence raised by the appellant, based on the implied constitutional implication of freedom of communication.
18. Having adverted to the relevant authorities the learned magistrate concluded that there was no substance in the contentions advanced on behalf of the appellant in that regard. Indeed, he pointed out that:-
"... The purpose of the Electoral Act is to regulate
elections and ensure that the democratic process proceeds in
an orderly and regulated manner so that the voting public
have sufficient material before them to make an informed and
reasoned decision.
Section 113 assumes the existence of freedom of speech. The
only limitation that it places on that is that it should be
accurate and not misleading."
19. By his appeal the appellant, in effect challenges all principal aspects of the reasoning of the learned magistrate. He asserts that:-
- the electoral advertisement did not contain any statement
of fact which was, in the circumstances, inaccurate or
misleading;
- the evidence led from the appellant indicated the
existence of a Proudman v Dayman type defence, which had not
been negatived by the prosecution;
- section 113 of the Act is, in any event, invalid, in that
it contravenes the relevant implied constitutional freedom.
20. As to the first aspect it was argued on behalf of the appellant that the content of the advertisement was not inaccurate or misleading because, it was said, that, properly construed, the words "will be subject to closure" employed in it meant no more than that the relevant schools would be at risk of closure.
21. Like the magistrate, I am unable to accept that somewhat ingenious interpretation. The meaning to be attached to the language used must derive both from the text and also the setting in which it was to be found.
22. I also reject the suggestion that the learned magistrate fell into error in bearing in mind the sentence "We have 363 schools with less than 300 students", which immediately followed the content the subject of the charge. Whilst it was not the subject of the charge, it was certainly part of the context in which the impugned language was to be found and necessarily lends colour to what was obviously intended by it. Moreover, the advertisement also derives its colour from the very Lucas statement itself and falls to be contrasted with the points being expressed in that statement.
23. For present purposes the critical feature of the Lucas statement was that it specifically emphasized that "we're certainly not going to be closing two hundred schools in South Australia." He went on to emphasize that "If there are a small number of schools that have got very small numbers of students" then there would, under both Governments, continue to be a small programme of school closures. He then made it clear that schools with 300 students would certainly not be considered in any review of that type. He also stressed that, as an approach, the existing ALP policy in that regard, as already developed, would merely be continued.
24. In the first place it was perfectly clear to any viewer of the advertisement that the statement made in the ALP advertisement was intended to be a statement of fact and not a mere statement of opinion, as suggested by Mr Stanley, of counsel for the appellant. Secondly, it was, on any fair and objective interpretation, substantially at odds with the Lucas statement and simply could not have been accepted, by any reasonable person, as a fair and accurate projection of the impact of that statement.
25. The plain inference of the advertisement was that the Liberal Party was, by virtue of the Lucas statement, to be taken as having indicated an intention of implementing what was described in the advertisement as "a big change", by closing any schools with less than 300 students and, thus, by implication, 363 schools would be subject to closure if the Liberals won the election. I consider it to be beyond doubt that the advertisement unequivocally conveyed, and was intended to convey, the specific statement of fact that this was so; and that the phrase "subject to closure" was employed in that sense and positively structured to convey such a meaning. As Mr Selway, the Crown Solicitor put it, the advertisement impermissibly converted a negative statement into a positive proposition. This was so, notwithstanding that Mr Lucas had gone to some pains to stress that only a small number of schools with very small numbers of students were in issue.
26. Whilst Mr Stanley has laboured hard to avoid such a conclusion, it is, in my opinion, impossible to perceive how it can properly be said that the learned magistrate fell into error. The construction adopted by him was plainly correct and he properly found that the relevant advertisement was both inaccurate and misleading to a material extent. It was, on any view, a gross distortion of the content of the Lucas statement from which it derived.
27. On the appeal it was not seriously contended that the television announcement in question was not an electoral advertisement which had duly been published within the meaning of the Act. Patently it was.
28. It follows that the publication of the advertisement, in the form in question, prima facie, constituted a breach of section 113, for which the appellant was liable to conviction unless he could avail himself of some proper defence.
29. Such a conclusion immediately begs the question as to whether subsection
(2) of section 113 is intended to oust any resort to a Proudman v Dayman type defence, or whether resort may be had to either basis of defence, if available in the relevant circumstances.
30. In this regard Mr Stanley adopted a somewhat schizophrenic approach. On the one hand I understood him to argue that a Proudman v Dayman defence of the existence of an honest and reasonable belief in a state of facts which, if true, would make the appellant's action innocent was available to the appellant on a section 113 prosecution and had been made out in the instant case. In the next breath he went on to submit that section 113 creates an exhaustive code, in which, inter alia, the defence in subsection (2) is to be determined objectively, in the sense that a defendant must prove that he took no part in determining the contents of the advertisement and could not reasonably be expected to have known that the statement to which the charge relates was inaccurate and misleading.
31. In the course of his judgment in Davis v Bates (1986) 43 SASR 149 at 150 King CJ said:-
"The law relating to the ascertainment of the mental element
of offences created by statute, has recently been the
subject of authoritative exposition in the High Court (He
Kaw Teh v The Queen (1985) 59 ALJR 620), and elaboration of
the principles developed in that case is unnecessary for the
purpose of the present appeal. Offences created by statute
fall, for the present purpose, into three classes. The
first class is that of offences an element of which is the
relevant guilty knowledge or intention, which element the
prosecution must prove in order to prove a charge of the
commission of the offence. The second consists of offences
of which guilty knowledge or intention is not an element to
be proved by the prosecution but which are nevertheless not
committed if the person doing the prohibited act believes on
reasonable grounds in a state of facts which, if true, would
render the doing of the act innocent. The third class
consists of offences which are committed by the mere
infringement of the statutory prohibition irrespective of
knowledge or intention. The criteria emerging from the
authorities, for distinguishing these classes one from the
others, are far from clear or easy of application."
32. He went on to comment that the trend of the authorities is towards recognizing reasonable mistake of fact as a defence in the case of all statutory offences except what he described as "that limited class of regulatory offences", namely relating to public health or safety, in respect of which, from the subject matter of the offence or the context in which the provision creating it is found, it is clear that the legislature intends to penalise the offending conduct, irrespective of the subjective guilt of the offender.
33. In some instances the expression of particular defence sections in the relevant statute will preclude a Proudman v Dayman defence by necessary implication. As Mr Selway pointed out a classic example of such a situation is to be found in subsection (2) of section 124 of the Act.
34. By way of contrast there is nothing in the subject matter of section 113 which would indicate a preclusion of the common law defence. In this respect some assistance is to be gleaned from the reasoning of the High Court in Evans v Crichton-Browne (1981) 147 CLR 169 in which at p206:-
"... much stress was laid on the importance, in the public
interest, of ensuring 'the purity of elections' to which
s.154 refers. In support of this argument reference was
made to Smith v Oldham where Isaacs J said: 'The vote of
every elector is a matter of concern to the whole
Commonwealth, and all are interested in endeavouring to
secure not merely that the vote shall be formally recorded
in accordance with the opinion which the voter actually
holds, free from intimidation, coercion and bribery, but
that the voter shall not be led by misrepresentation or
concealment of any material circumstance into forming and
consequently registering a political judgment different from
that which he would have formed and registered had he known
the real circumstances.'
That is no doubt true as a statement of general principle.
On the other hand, the framers of a law designed to prevent
misrepresentation or concealment which may affect the
political judgment of electors must consider also the
importance of ensuring that freedom of speech is not unduly
restricted, especially during an election campaign, and the
practical difficulties that might result if an election were
liable to invalidation on the ground that statements made in
the interests of candidates were found in subsequent
litigation to be untrue or incorrect."
35. In the case at bar and considering such concepts, there is no reason why section 113 should be regarded as creating an absolute offence, subject to subsection (2), because it focuses on an aspect regarding which a Court of Disputed Returns could, for example, well set aside an election because of a significant breach. There is thus no compelling need for any offence to be absolute to achieve a desired end result.
36. Equally, subsection (2) deals only with a very special and quite restricted potential factual scenario, one aspect of which was that an accused took no part in determining the content of an impugned advertisement. It erects a defence in relation to which the onus of proof lies on the accused. In my view there is an obvious parity of concept here with what fell from Gleeson CJ, albeit in a different context, in Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745 at 750, where he said:-
"It was urged upon us on behalf of the prosecution that the
subject matter is such that, save for the specific defence
made available by s46G(2), the matter ought to be treated as
one of absolute liability. It was pointed out that the
subject of preventing corruption by prohibiting members of
councils from voting on matters in which they are interested
is of great public importance. So much may be accepted, but
it is not obvious to me that the public has an interest in
punishing people for honest and reasonable mistakes of fact.
For example, a member of a council may be a shareholder in a
company which owns land that will be affected by a
particular council resolution. Suppose that the member is
unaware of the fact that the company owns the land in
question. Suppose, for example, that he has a positive and
reasonable, but mistaken, belief, that the company does not
own the land. I am unable to see that the public interest
requires that a person in that position should be exposed to
the consequences provided by s46G. It is true that an
offence against s46C carries a penalty of a fine, and not
imprisonment, but the fine is not insignificant and the
civil consequences provided by s46G(2) could be
far-reaching."
37. At the end of the day it must be concluded that there is simply nothing in the expression or concept of the subsection which must be taken to exclude the common law defence. The subsection (2) defence and the Proudman v Dayman concept sit comfortably together and complement one another. They postulate two quite different situations. In my view the subsection accepts the existence of the common law defence and the subsection merely adds to it and gives rise to a quite different onus in so doing.
38. I entertain no doubt that the Proudman v Dayman defence was open to the appellant. However, the situation was that, although the appellant sought to avail himself of it at trial, the evidence did not support its existence. Mr Stanley pointed to the appellant's evidence that he genuinely believed that what Mr Lucas had said was that any school with less than 300 students in them might close; and that was what the advertisement was intended to and did convey - in other words, he considered that the advertisement was an accurate reflection of the Lucas statement.
39. In this regard it seems to me that the obvious riposte to such a situation was that which the learned magistrate actually gave. Any relevant mistake must be both honest and reasonable. Even if one accepts that the appellant bona fide thought that the advertisement accurately portrayed the Lucas statement, his belief was not reasonable, as required by the Proudman v Dayman test. For the reasons already expressed, the Lucas statement did not, on any reasonable view, convey that for which the appellant contends. His reliance on Proudman v Dayman was illfounded and foredoomed to failure. Further, his evidence fell far short of invoking the statutory defence under section 113.
40. Thus the second ground relied upon by Mr Stanley must also be rejected.
41. The so-called constitutional defence advanced sought to derive its existence and validity from the reasoning of the High Court in Australian Capital Television Pty Limited and Others v Commonwealth of Australia (1992-93) 177 CLR 106 ("Australian Capital"), Theophanous v Herald and Weekly Times Ltd (1994) 68 ALJR 713 ("Theophanous") and Stephens v Western Australian Newspapers Ltd (1994) 68 ALJR 765 ("Stephens").
42. Those authorities render it clear that the principle of representative democracy inherent within the Commonwealth Constitution and that of a State such as South Australia implies a freedom of public discussion as to matters of political significance. In that regard I see no conceptual difference between the constitution of Western Australia discussed in Stephens and that of this State.
43. However, it is clear from dicta in those authorities that the identified freedom of communication is not an absolute freedom. To employ the language of Deane and Toohey JJ in Australian Capital at 169, the implication of freedom of communication is not an implication of an absolute and uncontrolled licence. So it was that, in the same case at 217, Gaudron J made the point that, as the freedom of political discourse is concerned with the free flow of information and ideas, it neither involves the right to disseminate false or misleading material nor limits any power that authorises laws with respect to material answering that description.
44. The lastmentioned concept was echoed by McHugh J at 234-5, when he said:-
"... 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.
... 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' 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."
(See also Nationwide News Pty Limited v Wills (1992-3) 177
CLR 1.)
45. I read nothing in the later decisions in Theophanous or Stephens which qualifies those concepts. There does appear to be some difference between the members of the court in Cunliffe v The Commonwealth (1994) 68 ALJR 791 ("Cunliffe") as to the precise formulation of the test to be applied in examining an impugned statutory provision. However, it is clear that the majority view was that expressed by Mason CJ in Cunliffe at 799 where he held:-
"That burden or restriction is justifiable if it is
reasonable in the sense that it is reasonably appropriate
and adapted to the preservation or maintenance of an ordered
society under a system of representative democracy and
government, the efficacy of which depends upon the exercise
of that very freedom. The conception of such an ordered
society embraces a framework of laws which protect the
rights and interests of the members of the society. In
determining whether a particular burden or restriction is
reasonably appropriate and adopted, it is relevant to
ascertain whether the burden or restriction is
disproportionate to the attainment of that objective. That
determination calls for a weighing of the public interest in
free communication as to political matters and the competing
public interest sought to be protected and enhanced."
46. When such an approach is adopted in the instant case I am of opinion that the ultimate conclusion of the learned magistrate on this issue is unassailable. The limitation imposed by section 113 is manifestly proportionate to the legitimate object of ensuring that what is represented as factual material published in electoral advertisements is accurate and not misleading. That such an aim is a legitimate object to be achieved is amply illustrated by the dicta in a series of decisions of the High Court ranging from as early as Smith and Others v Oldham (1912-13) 15 CLR 355 to as recently as Australian Capital.
47. The challenge based on implied constitutional freedom therefore plainly fails.
48. I would dismiss this appeal.
JUDGE3 LANDER J The facts are contained in the reasons for judgment of Olsson J and need not be repeated.
2. The appellant raised three matters which are necessary to be decided. Firstly, whether the electoral advertisement contained a statement of fact which was inaccurate and misleading to a material extent. Secondly, if that was so, whether on the true construction of the Electoral Act 1985, and in particular s113 of that Act, there was available to the appellant a defence of honest and reasonable mistake of fact (Proudman v Dayman (1941) 67 CLR 536) and if so, whether on the facts that defence had been made out. Thirdly, whether s113 of the Electoral Act 1985 was valid, or whether "it contravenes the implied protection of free speech on political matters found in the Commonwealth Constitution and the Constitution Act 1934". Logically, the third argument ought to be disposed of first, but the parties addressed the matter in the order set out above and so shall I. Section 113 provides:
"113. (1) Where -
(a) an electoral advertisement contains a statement
purporting to be a statement of fact;
and
(b) the statement is inaccurate and misleading to a material
extent,
a person who authorized, caused or permitted the publication
of the advertisement shall be guilty of an offence.
Penalty:
(a) where the offender is a natural person - $1,000;
(b) where the offender is a body corporate - $10,000.
(2) It is a defence to a charge of an offence against
subsection (1) for the defendant to prove -
(a) that he took no part in determining the contents of the
advertisement;
and
(b) that he could not reasonably be expected to have known
that the statement to which the charge relates was
inaccurate and misleading.
(3) This section applies to advertisements published by any
means (including radio or television)."
"'Electoral advertisement' means an advertisement containing
electoral matter."
"'Electoral matter' means matter calculated to affect the
result of an election."
3. Section 113 is directed only to statements purporting to be statements of fact. It has no application to expressions of opinion. It applies only to electoral advertisements, which restricts its application to advertisements calculated to affect the result of an election. Therefore, an infringement of s113 only occurs in circumstances where a person publishes a statement of fact in an advertisement calculated to affect the result of an election, and then only when that statement of fact is inaccurate and misleading to a material extent. It then applies to a person who authorized, caused or permitted the publication.
4. There was no dispute about the appellant's authorizing the advertisement, nor that it was a statement of fact and nor that it was calculated to affect the result of an election. The argument was directed to whether the statement of fact was inaccurate and misleading to a material extent.
5. Mr Robert Lucas, MLC, who was then the opposition Eduction spokesperson, said on Radio 5AD on Friday, 15 October 1993:
"Well. I mean ... we've indicated here in South Australia
that we're certainly not going to be closing two hundred
schools in South Australia.
If there are a small number of schools that have got very
small numbers of students, well then under both governments
I guess there will continue to be a small program of school
closures, but we're not going to be looking at schools with
three hundred students in them."
6. The advertisement which was authorized by the appellant was in the following form:
"Could this be South Australia? If the Brown Liberals win
the election South Australia will change in ways you and
your kids never imagined.
The fact is the Brown Liberals have stated that any school
with less than three hundred students will be subject to
closure. We have three hundred and sixty three schools with
less than three hundred students. That's a big change.
Don't let it happen. Don't let Mr Brown bring South
Australia down."
7. The advertisement does contain a statement purporting to be a statement of fact. The words "The fact is the Brown Liberals have stated that any school with less than three hundred students will be subject to closure," assert two statements of fact. The first is that the Brown Liberals have made a statement. The second fact asserted is that the Brown Liberals have stated what is alleged. It is not as was argued, an expression of opinion. In my opinion, the statement of fact is inaccurate and misleading. Mr Lucas did not state that any school with less than three hundred students will be subject to closure. He said something quite different. He said, firstly, that both governments (sic) will continue a programme of school closures, in respect of a small number of schools that have got very small numbers of students. He then said (his party) is not going to be looking at schools with three hundred students in them. It is not permissible, if one wishes to report Mr Lucas' statement accurately, to report it in the way that this advertisement was couched. To say something is not going to happen is not the same as saying that something else will happen. When both statements are read, it seems to me that a finding that the statement of fact was inaccurate and misleading to a material extent was inevitable. I therefore agree with the learned Magistrate's decision in that regard.
8. The defence offered in s113(2) was not, on the facts available to the appellant. Indeed, that defence would ordinarily be available to only a small class of persons, such as printers and publishers of newspapers and the proprietors of radio or television stations. That class of persons could bring themselves within s113(2)(a) and may be able to satisfy s113(2)(b). Whilst that defence was not open to the appellant, the learned Magistrate was asked to find that a Proudman v Dayman defence was available to the appellant and that it had been made out.
9. Counsel for the appellant, Mr Stanley, found himself in something of a dilemma in relation to the Proudman v Dayman argument. He asked this Court to find that on the facts, the defence had been made out. In the alternative he argued that if the facts did not support the existence of the defence, then the Proudman v Dayman defence was not available upon a true construction of the section. He took that most unusual position because his client was apparently not prepared to abandon an argument based upon the facts. It would have suited the appellant for the purpose of the third argument to have this court declare that on the true construction of s113, a Proudman v Dayman defence was not available. The respondent took a more orthodox position and argued that a defence of honest and reasonable mistake did arise on the statute, but had not been made out on the evidence.
10. In Davis v Bates (1986) 43 SASR 149 at 150, King CJ said:
"The law relating to the ascertainment of the mental element
of offences created by statute, has recently been the
subject of authoritative exposition in the High Court (He
Kaw Teh v The Queen (1985) 59 ALJR 620), and elaboration of
the principles developed in that case is unnecessary for the
purpose of the present appeal. Offences created by statute
fall, for the present purpose, into three classes. The
first class is that of offences an element of which is the
relevant guilty knowledge or intention, which element the
prosecution must prove in order to prove a charge of the
commission of the offence. The second consists of offences
of which guilty knowledge or intention is not an element to
be proved by the prosecution but which are nevertheless not
committed if the person doing the prohibited act believes on
reasonable grounds in a state of facts which, if true, would
render the doing of the act innocent. The third class
consists of offences which are committed by the mere
infringement of the statutory prohibition irrespective of
knowledge or intention." His Honour went on to say at page 151:
"The next question for consideration is whether the offence
is an absolute offence involving no mental element, or
whether the common law defence of reasonable mistake of fact
is available. The trend of the authorities is towards
recognizing reasonable mistake of fact as a defence in the
case of all statutory offences except that limited class of
regulatory offences, usually relating to public health or
safety, in respect of which, from the subject matter of the
offence or the context in which the provision creating it is
found, it is clear that the legislature intends to penalize
the offending conduct irrespective of the subjective guilty
of the offender."
11. The defence, of course, can be excluded by clear words. He Kaw Teh v R
(1985) 157 CLR 523. It can also be excluded by implication where the statute, read as a whole, provides defences which are impliedly inconsistent with such a defence. Franklin v Stacey (1981) 27 SASR 490. The history of the legislation can suggest an intention to exclude the defence. Davis v Bates
(1986) 43 SASR 149 per von Doussa J at 159 and Kain and Shelton Pty Ltd v McDonald (1971) 1 SASR 39.
12. I have consistently referred to the concept as a defence, whereas in truth it is not a defence in the sense that it requires the defendant to prove anything. If there is evidence which suggests that the defendant did mistakenly believe on reasonable grounds facts, which if those facts existed, would have made the conduct innocent, then the burden falls upon the complainant to exclude the belief. Davis v Bates (1986) 43 SASR 149 per King CJ at 152 and von Doussa J at 160.
13. The purpose of the Electoral Act is to regulate the conduct of parliamentary elections. It has been passed by a democratically elected Parliament to ensure that future Parliaments are also democratic. It provides for the appointment of an Electoral Commissioner who is independent of the Public Service and therefore of the Executive, and whose principal function is to ensure that elections are conducted publicly, openly and fairly. It provides for the eligibility of electors and the procedure for their being able to vote. It also provides for the registration of political parties. The legislation governs the issue of Writs for the election, the preparation for an election and the electoral process itself, and the return of the Writs. It constitutes this court as a Court of Disputed Returns, where a dispute arises as to the regularity of an election.
14. Part XIII of the Electoral Act is headed "Offences". It provides for penalties for those who would bribe or solicit a bribe for the purpose of influencing the vote or candidature of an elector or for influencing the cause or result of an election. It also prohibits, by penalty, any person from influencing or attempting to influence by violence or intimidation the vote of an elector or the candidature of any person or the course or result of an election. It precludes anyone from interfering with the free exercise or performance by any person of a right or duty under the Act itself.
15. Division II of Part XIII is headed "Electoral Advertisements, Commentaries and Other Material," and incudes s113. The division regulates electoral advertisements. It does so by requiring the author to acknowledge himself or herself on the advertisement, and for the printer to be identified by name and business. It also provides for the printing of such advertisements. The Act attempts to ensure that a reader would be able to recognize from the format of the article that it is an electoral advertisement and who authorized the publication of it. It does so for the purpose of ensuring that the reader knows whose view it is that the reader is considering. Smith v Oldham (1912) 15 CLR 355 per Griffiths CJ at 358. It also provides similar sanctions in respect of comment.
16. The Electoral Act has as its principal purpose the regulation of elections to ensure that the election is conducted freely and democratically. It acknowledges by implication that a free and democratic election requires freedom of speech so that all candidates, all electors and the publishing media can freely and frankly exchange views about candidates and issues. A democratic election requires that the electorate be informed so that the electorate can exercise an informed vote. In Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 210 Windeyer J said:
"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."
17. It also requires that the elector be not interfered with or intimidated such that the vote that is exercised is not truly the vote that the elector would otherwise have made. It requires that a candidate be free of the offers or the soliciting of bribes.
18. Section 113 requires that a political party or a candidate or any electors not publish statements of fact, relating to an election, which are inaccurate and misleading to a material extent. That section recognizes that a truly informed elector is one who has not been subjected to deceit or misrepresentations such that the elector might vote contrary to the manner in which that elector would have voted but for the deceit or misrepresentations. Whilst s113 does interfere with the right of the freedom of speech, it does so for the purpose of protecting the electors from being mislead and deceived. The Act, I think, attempts to balance the concept of freedom of speech and the right to be properly informed.
19. There is nothing in the Act when read as a whole or in s113 itself, taking into account the defence that is offered in s113(2), which in my opinion, would lead to the conclusion that a defence of honest and reasonable mistake is not available to a person charged with a breach of s113 of the Act.
20. Indeed, on the contrary, the purpose of the Act is to facilitate a free and informed election. Consistent with that is the recognition of the principle of freedom of speech, at least in relation to political matters. In recognizing freedom of speech the legislature would have understood that people when asserting facts make mistakes which are honest mistakes and made upon reasonable grounds. It would not be intended that they would be convicted. If it was so intended, it seems to me, there would be a subtle interference with the underlying principle of freedom of speech in relation to political matters in that the absence of such a defence might cause a person not to assert facts for fear of prosecution, even though that person honestly believed on reasonable grounds that those facts were true. I think, therefore, that upon a true construction of the Act, the defence is available.
21. I agree, however, that in the circumstances of this case the respondent has consistent with its obligations excluded the defence. If the appellant held the belief that the words published were an accurate reflection of what Mr Lucas had said, then it seems to me that belief was not based upon reasonable grounds. In my opinion, the words are so obviously different that no person could reasonably reach that mistaken belief. The learned Magistrate was right as to the construction of the Act and the application of that construction to the facts.
22. I turn to the third argument. The matters to which I referred in a consideration of the second argument are, of course, as relevant to this argument. So also is it relevant that the Proudman v Dayman defence is available to a person charged under s113, although the availability of that defence is by no means decisive of the third argument. Hector v Attorney-General of Antigua and Barbida (1990) 2 AC 312 at 318.
23. There is implied in the Commonwealth Constitution a freedom relating to political discourse or a freedom of communication extending to all political matters. It is not a freedom of expression generally. It has been in the cases variously described (see Cunliffe v The Commonwealth (1994) 68 ALJR 791 per Mason CJ at page 798 and Brennan J at page 814). However it has been described, there is no doubt that it would include a freedom of communication in relation to elections. The freedom extends to all political matters at all levels of government and so it follows that it extends to any political discussion, notwithstanding that that political discussion relates or is connected only to the affairs of a State, and even if it has no connection with the affairs of the Commonwealth. That is so because of the inter-relationship between Commonwealth and State and Territory Governments, and local governing bodies and enterprises, and because of particular provisions in the Commonwealth Constitution itself. Australian Capital Television Pty Ltd v The Commonwealth 177 CLR 106 per Mason JC at 142, per Deane and Toohey JJ at 169 and per Gaudron J at 216. It may be that an examination of the Constitution Act of this State would also allow an implication to be drawn from the State Constitution (Stephens v W.A. Newspapers (1994) 68 ALJR 765), but that is not necessary to be decided. It is enough that such an implication is drawn from the Commonwealth Constitution and it is enough that the freedom extends to political discussions which relate solely to the affairs of this State.
24. The freedom to engage in political discourse is not absolute. It sometimes must give way to other legitimate interests such as the interests of justice, the protection of an individual's reputation, or the upholding of the community's sense of decency.
25. In Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at page 76. Deane and Toohey JJ said:
"The Constitution's implication of freedom of communication
with and about the government of the Commonwealth is not an
implication of an absolute and uncontrolled licence to say
or write anything at all about matters relating to the
government of the Commonwealth. It is an implication under
the law of an ordered society."
26. Whilst their Honours were there referring to communication relating to the government of the Commonwealth, their comments would apply with equal force to communications relating to the government of a state. Their Honours re-stated those principles in Australian Capital Television Pty Ltd v The Commonwealth (supra) at page 169.
27. In Australian Capital Television Pty Ltd v The Commonwealth (supra) Mason CJ said at page 142:
"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' (Hughes and Vale Pty Ltd v New South Wales (No. 2)
(1955) 93 CLR 127 at page 219, per Kitto J) or a 'society
organized under and controlled by law' (Samuels v Readers'
Digest Association Pty Ltd (1969) 120 CLR 1 at page 15, per
Barwick CJ). 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 through that regulation may fetter what
otherwise would be free communication (Smith v Oldham (1912)
15 CLR 355 at pages 358-359, per Griffith CJ)." Similar observations were made by Gaudron J at page 217 and McHugh J at page 235.
28. Section 113 is a law that does interfere with the freedom of discourse in political matters. It precludes a party making a statement which is inaccurate and misleading. It does not, however, preclude the publication of opinion or comment. It operates only in relation to elections, that is to say, it does not prevent the making of inaccurate and misleading statements unless they are published in electoral advertisements at elections and are calculated to affect the result of an election. Again, the prohibition is restricted to advertisements so that a person may make speeches that include statements of fact which are inaccurate and misleading. It does not penalize those who publish inaccurate and misleading statements of fact under an honest and reasonable mistake of fact. The section, in all those circumstances, is directed to a very small class of persons in very narrow circumstances. The legislation regulates the conduct of those who would seek election pursuant to the democratic process.
29. Laws of this kind are not uncommon in democratic societies. In Australia the Commonwealth Parliament has enacted the Commonwealth Electoral Act 1918, which contains a similar provision (s329 Commonwealth Electoral Act). The State legislatures and the Northern Territory Assembly have all passed similar provisions (s151A Parliamentary Electorates and Elections Act 1912 (New South Wales); s267B The Constitution Act Amendment Act 1958 (Victoria); s154 Electoral Act 1907 (Tasmania); s191AElectoral Act 1907 (Western Australia); s163Electoral Act (Queensland); s106Electoral Act (Northern Territory). In Smith v Oldham (supra) Griffiths CJ said at page 358.
"What is really meant is regulation of the conduct of
persons with regard to elections. The main object of laws
for that purpose is, I suppose, to secure freedom of choice
to the electors. Incidental to the freedom of choice is the
prevention of, amongst other things, intimidation and undue
influence. It has been not uncommon, for the last half
century at least, to make provision in electoral laws
requiring advertisements, pamphlets and other election
literature to bear the name of the printer and of the person
by whose authority it is issued. Such a provision is to be
found in sec.180 of this Act, which is not in an unusual
form."
30. Whilst this legislation does interfere with the freedom to engage in political discourse, it does so for the protection of the fundamental right, which is that an elector is not only to be as widely informed as the elector and any candidate would wish, but also that the elector is not lead by deceit or misrepresentation into voting differently from that which the elector would have done if the elector had not been misinformed.
31. That it seems to me is as important as any other legitimate interest such as the interests of justice, the protection of an individual's reputation or the upholding of the community's sense of decency.
32. In Smith v Oldham (supra) Isaacs J said at page 362.
"The vote of every elector is a matter of concern to the
whole Commonwealth, and all are interested in endeavouring
to secure not merely that the vote shall be formally
recorded in accordance with the opinion which the voter
actually holds, free from intimidation, coercion and
bribery, but that the voter shall not be led by
misrepresentation or concealment of any material
circumstance into forming and consequently registering a
political judgment different from that which he would have
formed and registered had he known the real circumstances.
So far from the latter consideration being foreign to the
subject of election, it is of the first importance. For an
opinion into which a man has been tricked or misled, even
innocently, is a double wrong. It means not merely a loss
to the side on which he would otherwise have cast the vote,
but it also strengthens their opponents." His Honour went on to say:
"But the public injury, so far as political results are
concerned, is as great when the opinion of the electorate is
warped by reckless, or even careless, misstatements, as when
they are knowingly untrue; in each case the result is
falsified, and therefore the mischief may be equally
provided against if Parliament thinks fit."
33. Issacs J's statement was considered in Evans v Crichton-Browne (1981) 147 CLR 169 and the court. (Gibbs CJ, Stephen, Mason, Murphy, Aickin, Wilson and Brennan JJ) said at page 206 in respect of that statement:
"That is no doubt true as a statement of general principle.
On the other hand, the framers of a law designed to prevent
misrepresentation or concealment which may affect the
political judgment of electors must consider also the
importance of ensuring that freedom of speech is not unduly
restricted, especially during an election campaign, and the
practical difficulties that might result if an election were
liable to invalidation on the ground that statements made in
the interest of candidates were found in subsequent
litigation to be untrue or incorrect."
34. It is a matter of balance. On the one hand the principle of freedom of political discourse ought not be interfered with. On the other hand, an elector ought not to be mislead into the exercise of the elector's vote and the purity of the electoral process ought to be preserved so as to avoid not only the wrongful election of a candidate, i.e. wrongful in the sense that that candidate would not have but for the misleading information have been elected, but also the possibility that the misleading information may lead to the setting aside of the election. I think that is consistent with what McHugh J said in Australian Capital Television Pty Ltd v The Commonwealth (supra) at page 234:
"The constitutional rights identifiable in ss7 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 covered by those sections. However,
the rights identifiable in ss7 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 ss10, 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 ss7 and
24. In Smith v Oldham, this Court held that the powers
conferred by ss51(xxxvi) and (xxxix) authorized 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 ((1912) 15 CLR at pages 358, 360, 362, 363).
However, no reason exists for confining the Commonwealth's
regulatory power over federal elections to the prevention of
dishonesty."
35. It is also consistent with what Mason J said at page 42 of Australian Capital Television Pty Ltd v The Commonwealth.
36. As this is a law which does interfere with the freedom of political discussion, regard must be had firstly as to whether the law under consideration "targets information or ideas or prohibits or regulates the content of communication" or whether it is a law that regulates the making of a communication. That is so because members of the High Court have discriminated between the two propositions. Their Honours have determined that a law of the first type would require compelling justification to sustain that law's validity. This is not a law of that kind. This is a law that regulates the conduct of persons in making a communication. It is the type of law that was contemplated in Smith v Oldham and also in Australian Capital Television Pty Ltd v The Commonwealth.
37. Different members of the High Court have suggested different tests to determine the validity of a provision that does interfere, by regulation, with the freedom of political discourse. In Australian Capital Television v The Commonwealth (supra) Mason CJ suggested a weighing or balancing of the competing public interest and a determination as to whether the interference is disproportionate to the attainment of the public interest (pages 143-144). Brennan J said it was necessary to consider the proportionality between the restriction which the law imposes on the freedom and the legitimate interest which the law is intended to serve (page 157). Deane and Toohey JJ determined that a law which interfered with the freedom would be valid if "it did not go beyond what is reasonably necessary for the presentation of an evolved and democratic society ...." (page 169). Gaudron J suggested that a regulation of political discourse must not go beyond what is reasonably and appropriately adapted to achieve the appropriate regulation (page 218). McHugh J said that laws which regulate discourse will not be invalid if they "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" (page 230).
38. I think on any of the tests proposed, that this legislation would be valid. The legislation, it seems to me, goes no further than is necessary to protect the legitimate interest for which it is designed.
39. I do not understand Theophanous v Herald and Weekly Times (1994) 68 ALJR
713 to be inconsistent with the opinion that I have expressed. That case was, of course, an action in defamation and required consideration of the common law defence and the development of common law, having regard to the implied freedom in the Commonwealth Constitution (page 719). It did not consider the validity of any Act of Parliament.
40. On the same day that the High Court delivered its decision in Theophanous v Herald and Weekly Times (supra) it also delivered its decision in Cunliffe v The Commonwealth (supra). In that case Mason CJ, when considering a law which regulated the making of a class of communications including the requiring of persons to comply with a code of conduct reiterated that it is relevant to ascertain whether the restriction is disproportionate to the attainment of the objective. To that extent there is a need to weigh the competing public interests. Deane J also reiterated what he had said in his joint judgment with Toohey J in Nationwide News Pty Ltd v Wills (supra). Whilst Toohey J reached a conclusion different to Deane J, it seems to me that he also did not resile from the test that he and Deane J had proposed in Nationwide News Pty Ltd v Wills. Gaudron J re-stated her opinion that the test was whether the law was reasonably appropriate and adapted to the relevant purpose. There is nothing in Theophaneous v Herald and Weekly Times which would suggest that members of the High Court have directly, or anything in Cunliffe v The Commonwealth which would suggest that the members have indirectly altered the position that they took in Australia Capital Television Pty Ltd v The Commonwealth or Nationwide News Pty Ltd v Wills.
41. For all of these reasons this appeal should be dismissed.
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