14 April 1993
The decisions of the High Court in Australian
Capital Television Pty Ltd v Commonwealth (1) (the Political
Broadcasts case) andNationwide News Pty
Ltd v Wills (2) (the Nationwide News case) mark a significant
new development in Australian constitutional law, in particular because of the
High Court's recognition of the freedom of communication in relation to political
The Political Broadcasts Case
Part IIID of the Broadcasting Act 1942, inserted by the Political Broadcasts
and Political Disclosures Act 1991, banned the broadcasting on electronic
media of political advertisements, on behalf of interest groups and members of
the public as well as political parties and candidates for election, during election
campaigns for all levels of government. It also introduced a regime whereby broadcasters
were required to put to air broadcasts on behalf of parties and candidates free
of charge: a quota of this 'free time' was to be apportioned between parties
and candidates according to criteria set out in the Act, which allocated 90 per
cent of the quota to
Four Justices (Mason CJ, Deane, Toohey and GaudronJJ) held the whole of PartIIID
to be invalid; one (McHugh J) held it to be invalid except in its application
to the Territories; one (BrennanJ) held the provisions relating to State elections
invalid; and one (DawsonJ) held the whole of PartIIID
Six Justices held that there was a freedom of communication in relation to political
matters inherent in the Constitution. The Constitution is predicated
on representative government and freedom of communication is essential to that
All of the Justices who recognised an implied freedom also recognised that the
freedom was not absolute and could be restricted to the extent that other legitimate
public interests required. They did not hold that no control of the use of the
media for political advertising could be valid. However, five found that PartIIID
went beyond a justifiable restriction of the freedom. Some of the factors considered
significant were as follows:
- PartIIID denied access to the most important media for election campaigning;
- it allocated 'free time' in a manner that was weighted heavily in favour
- the operation of the regime depended on the making of regulations at the
discretion of the Executive;
- persons other than candidates and political parties were completely excluded
from use of the electronic media;
- the periods during which the ban could operate ('election periods' for
Commonwealth, State and local government elections) were very frequent; and
- the exception of news and current affairs programs added to the power of
those programs and did not provide any right of reply to what was said on
Brennan J held that it was open to the Parliament to make a low assessment
of the contribution of electronic advertising to the formation of political
judgements and to conclude that representative government could survive and
flourish without it. The restrictions of Part IIID in relation to Commonwealth
elections were therefore proportionate to the objects it sought to obtain.
The Nationwide News Case
Section 299(1)(d)(ii) of the Industrial Relations Act 1988 made it an
offence, by writing or speech, to use words 'calculated to bring a member of
the Commission or the Commission into disrepute'. The High Court held unanimously
that this section was wholly invalid, finding that it effectively prohibited
reasonable, justifiable criticism of the Commission and therefore went further
than was warranted by the public interest.
However, the Court accepted that there was a public interest in protecting
bodies such as the Commission from 'unfounded and illegitimate attack' and
that therefore some form of protection could be validly enacted.
Brennan, Deane, Toohey and Gaudron JJ based their decision on the same implied
freedom invoked in the Political Broadcasts case. They decided that it was
an essential attribute of representative government that representatives be
accountable to the people and people be in a position to make informed choices
about their representation, communicate their concerns to their representatives
and openly discuss matters relating to the government of the Commonwealth and
public institutions. Freedom of communication in relation to these matters
was therefore seen as essential to the principles on which the Constitution was
Mason CJ, Dawson and McHugh JJ based their decision on traditional characterisation
of the law. They held that, not being a law directly concerned with conciliation
and arbitration, section 299 did not fall within the 'central area' of the
industrial relations power (section 51(xxxv)) and it was therefore necessary
to consider whether it fell within the 'incidental area' of the power. MasonCJ
considered the central question to be whether section299(1)(d)(ii) was 'proportionate'
to the achievement of an end within the power, and the law's transgression
of freedom of speech was an important factor in his assessment. McHughJ's approach
was similar. DawsonJ preferred to regard the question as one of nexus with
the subject-matter of the power rather than proportionality or appropriateness.
The Implied Freedom of Communication
The majority in the Political Broadcasts case has taken an important step in
basing the implied freedom on the structure of the Constitution as a
whole rather than any specific provisions. This method of reasoning may have
implications for the scope of the freedom and the Court's preparedness to find
other implied rights and freedoms in the Constitution.
Source of the Freedom
The implication is drawn from the Constitution itself and the structure
of the institutions it establishes rather than from the nature of the society
in which it operates (BrennanJ expressly disapproved of the latter method).
This means that the capacity to imply freedoms is not unrestricted.
Deane, Toohey and GaudronJJ identified three sources of implications in the
structure of the Constitution: the federal system, the separation of
powers, particularly judicial power, and representative government.
BrennanJ expressly denied that the Court could invalidate a law simply because
it infringes human rights; some basis needs to be found in the words or the
structure of the Constitution.
MasonCJ said that an implication could be drawn from the overall structure
of the Constitution, rather than the terms of a particular provision,
only if it was necessary to preserve the integrity of that structure.
Nevertheless, the decision clearly opens up substantial possibilities for the
implication of other rights. 'Representative government' may well require freedom
of movement and association as well as of communication, as GaudronJ acknowledges;
and it is not inconceivable that that term could come to stand for a free and
democratic society in general, leading to the implication of further rights.
Scope of the Freedom
The scope of the freedom is determined by what is necessary for 'representative
government'. The decisions establish that the right extends to 'political matters',
'public affairs' or 'political and economic matters'. The test seems to be
whether matters are relevant to the government of the Commonwealth. The freedom
applies at all times, not only during election campaigns. It is also established
that the right is not confined to matters of political debate at the Federal
level. The democratic character of the States is also important to the constitutional
structure; and the interaction of the various levels of government makes the
identification of purely Federal matters impossible.
The definition of 'political matters' leaves much to be determined. Although
the test of relevance to representative government provides some guidance,
there is clearly potential for a great deal of argument about the matters to
which the freedom extends. For example, if sexual mores or multiculturalism
are debated in the political arena, does the implied freedom apply to defamatory
statements about a person's private affairs or racially based aspersions on
ethnic groups? While these examples may be able to be dealt with through the
'balancing of interests' discussed below, they illustrate the potential for
further issues to arise.
Effect on the States
If the freedom of communication inherent in the Constitution can be
infringed by control of the electronic media, it can presumably also be infringed
by State legislation controlling the print media. Although it was not necessary
to decide the issue, Brennan, Deane and TooheyJJ indicated that they thought
there were strong arguments for the view that the freedom also limited the
law-making powers of the States.
Balancing of Interests
A further area of uncertainty in the majority's definition of the implied freedom
stems from the concession that the freedom is not absolute and that some laws
which restrict it will nevertheless be valid if they are necessary or 'proportional'
to the achievement of legitimate public interests. Such a concession is necessary
for practical reasons and is consistent with most human rights thinking. However,
the Court has allocated to itself the difficult task of balancing the guarantee
of free communication against other public interests which may lie behind laws
restricting that freedom. In many cases the balancing of interests will not
be difficult (for example, where a law protects public figures or institutions
against scurrilous and unfounded attacks on their reputations). However, it
is likely that cases will arise in which the Court's task will be both delicate
and politically controversial.
Both cases involved communication across State boundaries and therefore afforded
opportunities for the High Court to clarify the freedom of interstate 'intercourse'
in section 92 of the Constitution. Only Brennan, Deane and TooheyJJ
in Nationwide News and DawsonJ in Political Broadcasts took this opportunity;
other Justices did not need to address the issue because of the views they
had taken on other issues. Broadly, their Honours decided that the freedom
of interstate 'intercourse' in section 92 does not invalidate a law merely
because it burdens that intercourse; it is directed at laws that impose a burden
on that intercourse either because of its interstate character or in a manner
that exceeds what is reasonable to achieve some other purpose.
It is implicit in the reasoning of the majority in Political Broadcasts that
the presence of the express freedom in section 92 does not preclude the implication
of a potentially overlapping freedom.
Acquisition of Property
Although only three Justices in the Political Broadcasts case considered the
issue of acquisition of property under section 51(xxxi) of the Constitution,
it may be significant that those Justices decided not to extend the concept
of an 'acquisition of property' into the area of interference with the exercise
of rights connected with property. (The remarks of DeaneJ in the Tasmanian
Dam case gave some encouragement for such an extension.) Had the Court decided
that the terms of a statutory licence could not be altered without effecting
an 'acquisition of property', the consequences for Commonwealth legislative
action would have been far-reaching.
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