Nationwide News Pty Ltd v Wills (1992) 177 CLR 1

Facts: The publisher of The Australian was prosecuted under s 299(1)(d)(ii) of the IR Act which provided that “A person shall not…by writing or speech use words calculated…to bring a member of the IRC or the Commission into disrepute.

Held: s 299(1)(d)(ii) was invalid. However only Brennan, Deane, Toohey and Gaudron JJ (4) adopted the view that even if s 299(1)(d)(ii) was within power, it was nevertheless invalid as infringing an implied freedom of political discussion

Deane and Toohey J:

• Noted that three general doctrines of government underlie the Constitution – two of which are the concept of a federal system, and the separation of powers

  • Past cases have been directed to these doctrine – e.g. the implication from the terms of the Constitution (and its implied federal system within) that legislative/executive powers conferred on the CTH are confined to the extent necessary to preclude their use in a manner inconsistent with the continued existence of independent State or their capacity to function as such

• It is from these implications that a third general doctrine, the “doctrine of representative government”, flows. That is, a government by representatives directly or indirectly elected by and ultimate responsible to the people of the CTH

• In doing so the Constitution reserves to the people the ultimate power of government control through two processes – election of Parliament and amendment of the Constitution

  • Under the Constitution these powers are exercisable by direct vote (ss 7, 24, 129)

  • Even though exceptions do exist (e.g. to protect smaller States), the general effect of the Constitution is that all citizens not under a special disability are entitled to share equally in the exercise of these powers

• The people would be unable to exercise this power if they were unable to communicate

  • The discharge of voting involves communication – both in the ability to vote intelligently (which exists only if the identity of candidates and the content of a proposed law submitted for the decision of people at a referendum can be communicated to the voted) and the ability to cast a fully informed vote (which depends on the ability of people requiring information about candidates and other considerations that are relevant to their decision as to what is in the interests of the nation

  • The doctrine of representative government isn’t just concerned with electoral processes – its central thesis is that the powers of the government belong to the people. The repositories of governmental powers under the Constitution hold them as representatives of the people under a relationship between representative and represented to communicate information/views

    • It further presupposes an ability of people of the CHT to communicate amongst themselves, information and opinions about matters necessary to discharging government powers on their behalf

• Hence the doctrine operates at two levels – the level of communication between representatives and represented and the freedom of communication between the people of the CTH

Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106

Facts: This case involved a challenge to the validity of the Political Broadcasts and Political Disclosures Act that added Pt IIID dealing with “Political Broadcasts” to the Broadcasting Act. S 95B imposed a blanket prohibition on political advertisement during the election (and under s 95C for Territories, State and local under s 95D). Exceptions were made for policy launches, news, current affairs, talk back radio etc. that didn’t “explicitly advocate” vote for a candidate/party

Div 3 of Pt IIID established a scheme of “free time” for political advertising, allocated to the parties by the ABT. 90% of this time was reserved for parties represented in the previous parliament. Units of free time could be used for limited purposes (2 minute telecast/1 minute radio with a picture of the speaker’s head/shoulders).

It was accepted that Pt IIID fell within s 51(v) (Postal power) or the CTH’s power with respect to federal elections. The question was hence whether it was invalid due to infringement of a constitutionally guaranteed freedom of political discussion.

Mason CJ, Deane, Toohey and Gaudron JJ held that Pt IIID was wholly invalid on this basis. McHugh held it was invalid on this basis except in relation to s 95C on territories. Dawson J rejected this idea. Brennan J agreed that the implication existed but held the provisions were valid as a reasonable restriction upon it.

Mason CJ:

Constitutional Implications

• His honour disagreed with the notion that the Engineer’s Case supported a proposition that implications from the constitution could not be made – indeed they have been used to justify rules based on federalism (as above)

• But the implication must be securely based

  • However his honour thought that statements to the effect that “ordinary principles of construction” looking only at the “actual meaning” for “necessary...