ACTV v CTH Case Summary PDF

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Helped in the final exam to form a structure for the case analysis question...

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Australian Capital Television Pty Ltd & New South Wales v Commonwealth (1992) Facts: -

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The plaintiffs both sought that part IIID of the Broadcasting Act 1942 (Cth) was invalid Part IIID had been inserted into the Act by the Political Broadcasts and Political Disclosures Act 1991 (Cth) This section established a regime regulating the broadcast on electronic media of political advertisements during the election period This regime is applicable to all Commonwealth, state and local Government elections and referenda The Act had prohibited broadcast during an election period, meaning political matter While the Political Broadcasts and Political Disclosure Bill was before the Parliament, the Government introduced amendments imposing an obligation on broadcasters to provide free tine Section 95H of the act required the Tribunal to grant 90% free time to any political part already presented In cases not covered by this section, the Tribunal was to consider applications for the grant of free time Bound to grant free time to sitting independent senators seeking re-election amounting in the amount of 5% or 10% of the total free time Free time granted was to be used for only ‘talking head’ advertisements

The Issues: - There had been more than one issue stated by the plaintiffs in this case - The issues included where in regards to the Act, stating that it prohibited  A freedom of communication in regards to the political and electrical processes implied by the Constitution  Contravened the express guarantee of freedom of intercourse in S90 of the Constitution  Interrupted the capacity of the state to exercise its legislative, executive and judicial functions in accordance with the regime - The main question to be answered by the judges was whether  There had been an implied freedom of political communication entrenched in the Constitution  If yes, does Part II of the Broadcasting Act unfairly burden that freedom, and thus make it invalid as being inconsistent with the constitution

An Implied Freedom of Political Communication within the Constitution

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An implied freedom of political communication within Australia always relates back to the topic of having a representative government, which is able to represent the peoples by giving them a voice in the first place This is stated in section 7 and 24 of the Constitution  Which enshrines the principle of representative government, and is essential to the efficacy of Parliament when casting a responsible vote.

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With these sections of the Constitution, Dawson J came to the conclusion that there is no implied right of freedom of political communication. This was different in comparison to the other 5 judgments which agree to having an implied right of freedom of political communication.

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Dawson J stated that there is no implied right of freedom  As the end result of such sections is quite inconsistent with the intention portrayed by the Constitution, he found this as the basis for the refusal of having an implied freedom of political communication  He also stated that:  The Australian constitution in contrast to the American Model does not seek to establish personal liberty through the enforcement of constitutional restrictions exercised by the government power  He believed that the framers put their trust in the democratic process to protect the freedoms that they enjoy  His view on not having an implied freedom of political communication, rests on the fact that the court is not able to prevent the misuse of legislative powers, especially in this sense  He also supported that the practical effect of this impugned law to not hinder substantially the efficiency of the democratic process, as the existence of this freedom and rights is contrary to representative government

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Five members of the court had concluded that there had been an implied right of freedom of political communication within the Constitution (Mason CJ, Brennan, Dean, Toohey, and Guadron JJ) 

Mason CJ was the only one to make an argument in relation to Dawson J’s reasoning.  He concluded that there is no need for a Bill of Rights to be implemented to protect the freedoms and rights of citizens  As the Constitution had been drafted as an unexpressed assumption of this bill.  He also stated that the implication of representative government is an integral part of the Constitution, and is a fundamental right.  The adoption by the framers of the constitution of the principle of representative government is what guarantees individual rights.  As the people are allowed to vote, even though there is no reference to ‘voting’ in section 24 it makes it clear that ‘chosen’ means ‘chosen by a

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vote at election’, and S7 which states that it is chosen by the people of the State. His whole argument was in relation to Dawson J’s reasoning and the incorporation of representative Government in our Constitution

Gaudron J  She argued in the same manner as Mason CJ in relation to representative government  That representative government is an assumption, therefore an implication of those words includes the freedom of political communication.  She stated that we’ve already implied so many Constitutional aspects, such as the separation of powers, why wouldn’t this be implied?  This argument is a great one as she is referring to other cases in which this constitutional power has emerged

Overall the implied right of freedom of political communication within the Constitution was agreed upon, thereby going to the second half of the question in relation to the burden of freedom.

The Scope of Freedom -

When it comes to the scope of freedom two questions had been raised in relation to this matter, this included:  1. What kinds of restrictions, if any, are justifiable?  2. Does the freedom extend to matters relating to state and local government?  These questions had been answered in great detail by many judges, with a majority decision of 5-1, with Dawson J dissenting, and a joint judgment by Deane and Toohey JJ.  And whether Part 2 of the Broadcasting Act unfairly burdened the freedom

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Dawson J  He held that it had been valid for the following reasons.  He stated that it would only be invalid where it denies electors access to the information necessary for the exercise of a true choice of elected parliament  He went to state that no it had not burdened the freedom, as it had not existed  The non-existence was due to the legislation being construed in a literal approach, giving little confer rights to individuals  He went further to state that the rights which have been given are not in the Constitution, as someone is likely to breach those rights, which in the end demonstrates a distrust in the Constitution  He supports the widest scope, in restrictions upon political communication  He went on to state that if implications are to be drawn, they must appear from the terms of the instrument itself and not from extrinsic circumstances. He demonstrated this use by comparison Australian Constitution to United States

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constitution, in saying that the US Constitution would entirely belie the manner of its foundation The whole argument was the constitution is an exercise of sovereign power by imperial parliament, and that the power comes from this source and not finding the power in the people He has more of modern/ contemporary understanding of the constitution in comparison to the other justices

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Brennan J  He stated that the right is still evident, however it is not an absolute right  In saying so, he held that the law or executive action can only infringe the freedom to a certain limit which is reasonably and appropriately adapted to the stated legitimate purpose  However, this cannot substantially impair the Australian people to form their political judgments  In relation to restrictions he stated that:  ‘The restrictions were comfortable proportionate to the important object which the legislation sought to obtain, namely, tangibly minimising the risk of political corruption. Representative government can survive and flourish without paid political advertising on the electronic media during election periods. The discrimination was an incidental consequence, which did not entail invalidation, since such persons and groups had no personal right to advertise by the electronic media’  His judgment referred to the court having a balance between these competing interests of the freedom of political disclosure and the public or private interest protected by the freedom  It is a necessity to examine the nature of the interests being served to the individuals, as these interests are what helps citizens with their ability to exercise their democratic rights and privileges given by representative government.

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Guadron J  Her judgement accords with the approach taken by Brennan J and his reasoning to this matter  Held that the implied freedom could not be limited to discussion of political matters at the Cth level  But did acknowledge that it must be subject to reasonable limits , the nature of which might be indicated by ‘the general law’  She concluded that the law was invalid, since it was not ‘reasonably and appropriately adapted’ to the regulation of broadcasting under s51(v)  Also had relied on the fact that the ban operated at a time period during the freedom of political disclosure, this being a very important fact given its occurrence  Her judgment also stated a limited as Brennan J’s did, and held it invalid

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Mason CJ and McHugh J  not a JOINT judgment!!!!

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Took on a very strict view in comparison to the other judgments in relation to the restrictions imposed to the freedom of political communication They distinguished between restrictions which target ideas and information in relation to electoral communications, and those that target time, place or mode of communication of ideas or information

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McHugh  His judgment focussed on other forms of discrimination, with restriction applying to radio and television and not print media  He stated that these restrictions will need a compelling justification and will need just enough of what is necessary to protect the competing public interest  In saying that, it was established that The Senate Select Committee on Political Broadcasts and Disclosures conceded that television was the most effective medium of communication and that Parliament could not lawfully prefer one form of lawful communication over another  Therefore, protecting the public interest at that time, and holding it invalid

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Mason CJ  He held a that such restrictions would be unacceptable to the form of political censorship  As the restrictions placed on the elections would be vulnerable as it is within the areas that the freedom fulfils its primary purpose  This is due to his view being the same as McHugh J in consideration to the electronic media  He stated: ‘those excluded would be at the mercy of the powerful interests controlling the electronic media. The severe restrictions on freedom of communication failed to introduce a ‘level-playing field’, in which the majority of the community has access to the electronic media and failed to preserve or enhance fair access to the electronic media. They were, therefore, invalid’  Taking this into account he stated a test of whether the restriction is reasonably necessary or proportionate to achieve the competing interest  In his judgment he held it to be invalid, as the restrictions imposed upon the freedom of political information by Part 3 were impermissible.

Deane and Toohey JJ  Had a joint judgment  Very similar view with Mason CJ and agreed with his judgment  Had a differing test, however it is doubtful as to whether this differs in other respects  They stated very similar restrictions in regards to the test as Mason CJ, the only difference was that it allows for private interests to be considered in weighing up competing interests  This judgment held that it was invalid too.

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Overall  The majority of the court held that the freedom extends to communications in relation to state and local government affairs, and that Part II of the Broadcasting Act did not unfairly burden the freedom when considering the public’s interest  The majority refused to sever the free time provisions from the impressionable restrictions on political communication, even with the intention stated in S95 (2) of the Act. Stating that it should operate to the full extent of its operation  They argued that the legislature was intended to clearly operate the free time provision in the context of the prohibits and therefore held that the whole Part IIID was invalid

Conclusion -

The HC held by a majority that the legislation had been unconstitutional as it had limited the freedom of political speech, which is the key to responsible and representative government provided in the Constitution...