Australian Capital Television Pty Ltd and New South Wales v Commonwealth [1992] HCA 45 - PART 1

The next case to be considered with respect the implied right to political communication within the Australian Constitution is that of Australian Capital Television v Commonwealth. The decision in this case was given immediately following the case of Nationwide News Pty Ltd v Wills – on the same day in fact. This case concerned the regulation of political broadcasting and advertising during election periods. The enactment in question was Part IIID of the Broadcasting Act 1942 (Cth) which specifically contained ss 95B, 95C, 95D, 95E, 95Q and 95S which were designed to remove the ability for political candidates and parties to pay for advertising during election periods and put in place a system allocating free air time to candidates on a proportional basis.

The sections forming this part of the legislation were introduced via the Political Broadcasts and Political Disclosures Act 1991 (Cth), and were said to be supported by a combination of ss10, 29, 31, 51(v) 51(xxxvi) and 51(xxxix) of the Constitution. The challenge to the validity of the law was brought by both television broadcasters and the NSW Government. The grounds on which the law was challenged included: a breach of the implied right to political communication, a broad right of communication vested in the people of the nation, ss92, 106, and 107 of the Constitution as express provisions providing for the independence of the States as well as implied independence through the doctrine of federalism, and s51(xxxi) the acquisition of property on other than just terms. Each judgement focused on different combinations of these claims.

After summarising the judgements in this case, the following post shall again consider the position relating to the expansion of copyright law and whether any further assistance can be gained from the observations in this case regarding the implied right to political communication.

1. Judgements holding the legislation invalid on the basis of the implied right to political communication

Chief Justice Mason’s judgement in this case went into some detail as to the purpose of the legislation:

[17]...The Commonwealth’s response is that the evident and principal purpose of Pt 111D 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.

This was based partly on the Ministers second reading speech when introducing the legislation to the House of Representatives and as referred to in the Report of the Joint Standing Committee on Electoral matters, Who Pays the Piper Calls the Tune, Report No.4 of the Committee, June 1989. Mason further referred to the findings of this report in noting that of 19 countries examined only five – Australia, Canada, New Zealand, Germany and the United States – allowed for paid political advertising. The report of the Senate Select Committee also identified that paid advertising was permitted in Ireland and Switzerland. Paid political advertising was not permitted in the United Kingdom, France, Norway, Sweden, and the Netherlands; with prohibitions during an election period in Denmark, Austria, Israel and Japan. Further to this, free broadcasting time was found to be allocated for political messages in Canada, France, New Zealand, Denmark, Austria, Israel, Japan, Germany and the Netherlands.

Whilst the plaintiffs raised a number of grounds for objection, Mason dealt only with the issue of an implied right to political communication holding that this on its own was sufficient for the law to be declared invalid. In doing so, he made comments which assist in illustrating the origin, nature and application of the implied right.

In particular, he differentiated between assumptions and implications in Constitutional interpretation, stating that assumptions were external factors considered and applied to the text of the instrument whereas implications were a result of the natural reading of the document. He stated that one such assumption was against the provision of a broad and positive right of communication within the Constitution:

[33]...[I]t 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 is 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.

He then went on to state that an implied right to political communication could be easily established from ss7 and 24 of the Constitution as a fundamental basis to the effectiveness of a representative government. However Mason considered that this right was not absolute:

[45]...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 intimidations and undue influence, even though that regulation may fetter what otherwise would be free communication...

[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....

[47]...[R]estrictions imposed on an activity or mode of communication by which ideas or information are transmitted are more susceptible to 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... 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.

Mason held that whilst largely directed to restricting a mode of communication, the law in this case did affect a restriction on ideas and information regarding elections and as such he considered there to be a greater need to ensure freedom of communication. He accepted the basis on which the legislation had been introduced and considered that some restrictions may be justified to prevent corruption of the political process. However he also noted aspects of the operation of the scheme, particularly that the method by which free broadcast time was allocated discriminated against new candidates as opposed to those already within the Parliament and that interest groups were effectively silenced from broadcasting during election campaigns. He was also concerned that the method of allocating free air time was to be established by the Executive through regulations, potentially creating uncertainty and the opportunity for an abuse of power. He concluded ultimately that Part IIID of the legislation should be struck down in its entirety.

The joint judgement of Deane and Toohey JJ also held the law to be invalid on the basis of an unjustifiable interference with the implied right to political communication. In doing so they provided further observations as to the nature and application of this implied right:

[4]...It is an implication of freedom under the law of an ordered and democratic society. In determining whether a purported law conflicts with the implication, regard must be had to the character of the impugned law. In particular, a law whose character is that of a law with respect to the prohibition or restriction of communications about government or governmental instrumentalities or institutions (“political communications“) will be much more difficult to justify as consistent with the implications than will a law whose character is that of a law with respect to some other subject and whose effect on such communications is unrelated to their nature as political communications.

They go on to state some of the grounds on which an interference with the implied right may be justifiable:

[11]...interference with the freedom of political communication can be justified as being in the public interest for the reason that it is either conducive to the overall availability of the effective means of such communications or does not go beyond what is reasonably necessary for the preservation of an ordered and democratic society or for the protection or vindication of the legitimate claims of individuals to live peacefully and with dignity within such a society.

In this instance Deane and Toohey JJ held that the measures taken were not justified noting in particular that effectively silencing interest groups from political broadcasting in this way was not likely to achieve the objective of preventing the corruption of the political process by paid advertising.

Gaudron J made similar observations in striking down the legislation on the basis that it was not reasonably appropriate and adapted. Particular noteworthy comments include those with respect to the subject matter of the freedom of political discourse:

[28]...Obviously, the Constitution does not postulate a society that is free and democratic only at election time. Nor, but perhaps not so obviously, does it postulate a society that is free and democratic only with respect to matters which the Constitution entrusts to the Commonwealth.

With this in mind Gaudron considered that the implied freedom extended to powers held by the States to make laws. Gaudron went on to note that there was an association between freedom of speech at common law and freedom of political communication in Constitutional law:

[33]...Recourse to the general law reveals that freedom of speech (which, of course, is wider than freedom of political discourse) is not absolute, but may be regulated and, in certain circumstances, may be severely restricted. As the implied freedom is one that depends substantially on the general law, its limits are also marked out by the general law. Thus, in general terms, the laws which have developed to regulate speech, including the laws with respect to defamation, sedition, blasphemy, obscenity and offensive language, will indicate the kind of regulation that is consistent with the freedom of political discourse.

Gaudron concluded that Part IIID was invalid in its entirety with it being unnecessary to consider the issues relating to s92 of the Constitution or the acquisition of property on other than just terms.

McHugh J’s judgement also contained noteworthy observations, particularly those relating to what constitutes ‘representative government’, the availability of alternatives and the need to produce evidence to support aspects of these claims.

In considering the notion of ‘representative government’, McHugh concluded that it was best characterised as a process:

[21]...The process includes all those steps which are directed to the people electing their representative – nominating, campaigning, advertising, debating, criticising and voting. In respect of such steps, the people possess the right to participate, the right to associate and the right to communicate. That means that, subject to necessary exemptions, the people have a constitutional right to convey and receive opinions, arguments and information concerning matter intended or likely to affect voting... Moreover, that right must extend to the use of all forms and methods of communication which are lawfully available for general use in the community. To fail to give effect to the rights of participation, association and communication identifiable in ss7 and 24 would be to sap and undermine the foundations of the Constitution.

In discussing the availability of alternatives in achieving the objectives of the legislation, McHugh J stated:

[36]...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 infringement 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 s95A 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.

With respect to the requirement of providing evidence of the need for such a law, McHugh J held:

[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.

McHugh concluded as the majority of judges did in this case, holding the law to be invalid. He differed from the majority however, in accepting that the legislation was valid with respect to the Territories.

2. Judgements holding the implied right to political communication had not been unjustifiably interfered with

Brennan J differed from the findings of the other majority judges, determining that only s95D(3)&(4) were invalid. In particular his decision considered the proportionality of the impact of the law on political communication; from the outset declaring that this was a matter of degree which could not be determined as a general rule but which would be different in every case depending on the relevant legislative grant of power within the Constitution as well as the legislation alleged to be invalid.

In this instance he considered that the objective of the legislation, the prevention of corruption of the political process by paid advertisements, warranted the impact on political communication. He noted in particular that there were other methods of communication available other than television and radio advertising, that there was evidence to suggest that the use of short television commercials had a negative impact on accurately stating political issues, and that whilst there was an associated impact on charitable and other interest groups, that these organisation were not being prevented from holding opinions contrary to the other political parties nor did they have a personal right of access to broadcasting services. He stated that a system of representative government, as evidenced in other jurisdictions, could survive and flourish without paid advertising and for these reasons s95B was valid.

He considered the impact of the legislation on the States as a separate issue and held s95D invalid on the basis that it created an undue burden on the implied right of independence of the States. In contrast, he held s95B and s95C valid as they did not have the same impact of preventing discussion about State political issues but merely prevented their participation in Commonwealth elections.

In examining the legislation with respect to the provision of free air time – ss95H to 95R – he held that this did not amount to an ‘acquisition of property on unjust terms’ as provided for in s51(xxxi) of the Constitution. Here he considered that the nature of the rights being provided to the political participants did not amount to a proprietary right:

[29]...Part IIID creates no assignable rights. Under Div.3 of Pt IIID, broadcasters are statutorily bound to provide free broadcasting time to the political parties and other groups and persons to whom free time units are allocated. It is immaterial to the validity of Pt IIID that broadcasters are denied the right to broadcast what they wish during free time, for neither of these effects creates, extinguishes or transfers property. It is immaterial that Pt IIID reduces the value of a broadcaster’s license for the beneficiaries of the free time provisions acquire none of the rights or privileges conferred by a broadcaster’s license. The beneficiaries acquire a statutory right to have their election broadcasts transmitted free of charge. That is a right to the services of the broadcaster; it is not a proprietary right.

Despite the discriminatory impact of the free time provisions, Brennan considered this aspect of the law to be valid, stating that it was a matter for Parliamentary wisdom as to how the time was allocated.

Dawson J also concluded that the impact of the law on the implied right to political communication was justified. One particularly interesting aspect of this judgement is the observations made contrasting the Constitutional position between Australia and the United States:

[16]...Thus the Australian Constitution, unlike the Constitution of the United States, does little to confer upon individuals by way of positive rights those basic freedoms which exist in a free and democratic society. They exist, not because they are provided for, but in the absence of any curtailment of them. Freedom of speech, for example, which is guaranteed in the United States by the First Amendment to the Constitution, is a concept which finds no expression in our Constitution, not withstanding that it is as much the foundation of a free society here as it is there. The right of freedom of speech exists here because there is nothing to prevent its exercise and because governments recognize that if they attempt to limit it, save in accepted areas such as defamation or sedition, they must do so at their peril. Not only that, but courts recognize the importance of the basic immunities and require the clearest expression of intention before construing legislation in such a way as to interfere with them... The fact, however, remains that in this country the guarantee of fundamental freedoms does not lie in any constitutional mandate but in the capacity of a democratic society to preserve for itself its own shared values.

Dawson also noted that whilst in this case the court was only interested it the operation of the implied freedom within the electoral period, that there may well be scope to suggest that it continues between election periods. He concluded by holding that the prohibition against political advertising in an election period was justified with the availability of alternative means of political communication remaining a viable option.

Likewise, Dawson held the manner by which free broadcasting time was allocated, was valid, noting that other countries also have laws more favourable to existing parties and candidates and that the limitations placed on interest groups were necessary to prevent the redirection of campaign funds from political parties to these organisations who, if permitted, would simply be used as a vehicle to advertise in the place of candidates or political parties, undermining the effectiveness of the legislation.

Dawson did not find favour either in arguments based on s92 of the Constitution, holding that there was nothing in the legislation that used State boundaries as a barrier to political communication. Dawson also considered that there was no discriminatory effect of the law on the States as the law was formulated to have a general application and did not single out a State or the States as an entity specifically prevented from political communication.

Similarly Dawson did not support arguments based on the allocation of free air time or restriction of political advertising as an acquisition of property on other than just terms. In this regard, he considered that there was no proprietary right transferred to the political parties or candidates nor a legal entitlement to revenue from broadcasting.

Dawson therefore held the legislation to be valid in its entirety.