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Political broadcasts and political disclosure bill 1991 opinion given by professor Leslie Zines

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Peter Reith



5 January 1992


Attached is a copy of an opinion given to the Opposition by

Professor Leslie Zines, the Robert Garran Professor of Law at the Australian National University, regarding the Political Broadcasts and Political Disclosure Bill 1991.

Of particular interest is the strong doubts expressed by

Professor Zines regarding the validity of the legislation in relation to State elections.

The Zines' opinion has been provided to the NSW Government to assist in the preparation of their High Court challenge to the ban on radio and television political advertising.


Contact: Peter Reith Peter Durack 059/77 7212 09/386 4437

The Australian National University

KaculiyoCUw ox 5731, cantwm Flu (06) 249 0103

OPO no* 4 Canberra nci a&u Australia Ttiegrom*» eafck» natlmv Canberra Wephone ( 06) 149 3111 We* m61

18 December, 1991

Dr John Heweon Leader of the Opposition Parliament House CANBERRA ACT 2600

Dear Dr Hewson

I have been asked by Senator Peter Duraok to advise you whether the provisions of the above BCl In so far as they limit political advertising are. or are arguably, inconsistent with the Constitution.

For present purposes. It Is necessary to examine separately the effect of the provisions in relation to State elections and Commonwealth elections, My short answers are that, In my view, (a) the provisions cannot validly operate in respect of

Slate elections, (b) there are substantial arguments against those provisions that concern Commonwealth elections and referendum», but the law Is at present uncertain and (c) the provisions for "free time" are not Inconsistent with a SUxxxt) of the Constitution (the acquisition power).

Outline of the Provision.^

In relation to a Com m onwealIh election or referendum there to a total prohibition of the broadcasting of any 'political advertisem ent" for a period of time, that Is "during the election lod in relation to an election or a referendum" (section ©SB). The "election pc "Is defined In the propoeed amendment to section 4 of the Act. The period of prohibition Is extended In certain circumstances by virtue of section 96DA. "Political advertisement* includoe anything intended or Ukely to affect voting tn the election concerned or which refers to a number of matters set out in section 96B{7). .

Similar provisions are made for broadcasting during Stale» Territory and local government elections (sections 95C and 95D).

The prohibitions referred te above are qualified by the provisions of Division 3 which make elaborate provision tor "Dree umc" for political broadcasts, Division 4 provides for policy launches, which also qualifies the general prohibitions. A licensee required to grant free time Is entitled to additional broadcasting time, for

the purpose of broadcasting other material, as determined in accordance with the regulations, (Section 95DL(7].) Policy launches are required to be made free of charge, but there is no requirement on ihe broadcaster that they be provided.

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State Sections

The central provision· relating to State election» are those contained in section 95D a» proposed la the Bill.

There 1» no doubt that the law come» within the provision* o f section 51(v) of th e Constitution conferring power on the Parliament to make law» with respect to "postal, telegraphic, telephonic and other like service·", it ha» been held that broadcasting (s a *like service" (R v Brlslen; p a rts VyilH&rrta (1935) 45 CLR 262). It is also clear that the Commonwealth has plenary power under section 51(v) to control broadcasting to any way and to Impose such conditions as Parliament determines fMerald A Weekly t.M v Commrmwealth (196$) 115 CLR 418). Commonwealth powers, however, arc subject to any express or implied provisions

In the Constitution.

Generally speaking. Commonwealth powers extend to the enactment of laws binding on State governments, institutions or authorities fpngi^^ r a ' Case (taaoi 26 CLR 129; Victoria v Commonwealth IPayroll Tax Casel 118711 138 CLR 358), The C ourt, however, has declared, a n d reiterated to a scries of oases, that the federal nature of the C onstitution Imposes som e lim itations on the exercise of

Commonwealth powers In so tor a* they operate on or affect th e S tates. It is clearly established that the Commonwealth may not discriminate against one or m ore States or Impair their capacity to exist or function a» independent units of the federation, IM elbouma Corporation v Commonwealth (1947) 74 CLR 31; Franklin Cfctm (1963) 5$ CLR ll ftuccnalanri Electricity Com m ission v Commonwealth (1985) 159 CLR 192).

To date, the only ground on which federal laws have been declared invalid under this implied principle has been that they discriminated against the States, generally as compered with other persons iMf.^onfnf finrpftr?ttf>n v Commonwealth! or discriminated against one State and Its authorities gpuccfislarid Elec trial ty Commission v <^»rpqionwealtht.

The BUI does not fall foul of this aspect of the principle. In my view» however, It does impair the capacity of a State to function as an Independent unit of federation, Willie no federal law has. as yet, been Invalidated on this ground, the principle lias been reasserted on a number of occasions in recent times. What it is that may not

be destroyed or Unpaired has been variously described as "the structural integrity of the state components of the federal framework, State legislatures and Stole executives'’ /K oow arta v R jelke.'Peters^n (1982) 153 CLR 168 at 216). "the functioning of a Stale as an essential constituent dement in the federal system'

(F ranklin Dam Case (1983) 158 CLR 1 at 139), or "the processes by Which (the States) powers are exercised" fF ranldln Dam C ase a t 2 14L

What is involved, here, is not the impairment of a State's powers or functions of government, which occurs, of course, every time a federal law controls a state. The implied principle protect· the State a* an organisation of government, that is to say its general structure, machinery and processes by which it exercise» whatever governmental powers and functions it has, A Commonwealth law which purported,

tor example, to control the appointment of State ministers, Judges, the procedure of its Parliament or the relationship between Its Parliament and the executive would, dearly to my view, come within the implied prohibition,

In 1985, a Senate Standing Committee bad cause to consider this implied prohibition to the context whether a Commonwealth law could control freedom of Speech to a s ta le Parliam ent (Ος,τρτπντηττ^,ΐ»^ T-ww-Making Power and the Privilege nf Freedom of Speech m s ta te Parliam ent»; Report by Senate Standing Committee

on Constitutional and Legal Affairs). While I do not agree with all the views of the

majority of that Committee, they rightly, in my respectful opinion, saw spec sta te Parliament as central to the capacity of a State to function within the meaning of the implied constitutional prohibition.

It seems to me that the control of advertising and persuasion for purposes of State elections cornea within toe same category. The process of election la fundamental to the organisation an d structure of State government·. It is the process which determines the composition of both its legislature and Its executive. In m y opinion,

therefore, a federal law which purported to control the advertising of political m atter tn relation to a State election would be contrary to the Implied constitutional prohibition. There is nothing to toe nature of toe broadcasting power which makes necessary the control of State government processes, as might be the case, for example, under the defence power in wartime.

The conclusion 1 have reached might also be derived from section 106 of the Constitution whleh provides, tn part, toot "the Conotitution of such Stats of the Commonwealth Shall, subject to this Constitution, continue as at the establishment of the Commonwealth It was said by some Judges tn Re Tracey; tcv part* (i£89) 166 CLR 518 that section 106 was an express restriction on

federal power. If eo, It would be necessary to inquire whether State provisions fbr election to Parliament constitute part ef the "Constitution" of a state. I find It unnecessary to go Into this issue because, tn roy view, assuming section 106 is relevant, the substance of the matter is the same whether one reties on that section

or on implied constitutional restrictions. At the heart or the matter, tn either case, is the impairment of toe capacity ef a Stale to function as an independent unit of the federation.

if only section 95D Is invalid that will not, to my view, prevent the operation of the remainder of the provision» of toe Bill tic, those relating to Commonwealth and Territory elections), Section 95(2), together with section 15A of the Acta interpretation Apt,, would preserve the other provision», tf they were otherwise valid.

Itnrnm flTW Bfllth BlaotlfiTVi

The provisions of the Bill relating to Commonwealth election» may be susceptible to constitutional attack by virtue of provision· of the Constitution relating to elections or under section 92 of the Constitution. (The totter provision would «Iso apply to the provisions concerning state elections.) Sections 7 and 24 of the Constitution

provide for Senators and Members of the House of Representatives, respectively, to be "directly chosen by the people". The Conotitution in other provisions refers to "electton$" (eg, section» 32.33, 41, 641,

It to dear that toe notion of the people 'choosing" or "electing* senators and members assumes a degree of freedom of speech and assembly. To exercise their choice the people m ust have information, similarly those who seek to have the people exercise their choice tn their favour need to provide reasons why the people should choose them. The Constitution provides for a democratic means for determining the composition of the House· ef Parliament. It is arguable, therefore,

that Parliament cannot use its express power· tor toe purposes or Interfering with the freedom of persons to persuade the public to vote ror them at elections for the Commonwealth Parliament, For example, it seems d ear that under section 5 l(xx), conferring power on the Commonwealth to make laws with respect to foreign corporations and trading financial corporations formed within the limits of toe Commonwealth", provisions similar to those m the political Broadcast and Political

Disclosures Bill could be made to respect of newspapers and journals produced by trading corporations (which, I would guess, would be over 99% of newspapers and Journals tn Australia). Prohibit Inna on both electronic and print media would, of course, very seriously derogate from the right of people to choose their

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representatives. The present provisions do not fo co tar; but the example illustrated the nature of the principle I am suggesting.

1 should emphasise that the power of Parliament to control what might loosely be called "electioneering" in this respect has not been subject to any judicial pronouncements. In recent times, however, a number of Judges have treated civil liberty as being at times, relevant to the determination of the validity of statutory provisions. Freedom of speech was regarded as a factor in the invalidating provisions of the Australian TVrantennt·! Authority Afij 1960 (Davis V Commonwealth (1968) 160 CUt 79), A Similar issue Is at present before the High Court relating to provisions of the Industrial Relation* a<-i concerning "contempt" of

the Industrial Relations Commission,

The Commonwealth might argue that, accepting that there are limits to Its power to interfere with political advertising this law amounts to a reasonable regulation of the subject-matter In the public interest. Obviously no freedom Is absolute. Political persuasion is presently subject to laws relating to defamation, obscenity, public nuisance and so on· The issue comes down to a balancing of conflicting social Interests. Freedom of political speech may clash with other pressing social

problems tual interests. Assuming the legitimacy of the m atter of parliamentary concern, the issue is then whether the means adopted go beyond what is reasonably necessary or appropriate to attain that end.

This method of treating the matter has been adopted by the Court in other areas, such a s the adjustment of the interest in the freedom of interstate trade guaranteed by section 92 and the need to protect the environment (C astlem am c T ooheya.Lid γ S o u th A ustralia (1990) 90 ALR 371). Similarly, the guarantee in section 117 of the

Constitution against imposing discrimination or disability on out-of-State residents has been regarded by the Court as requiring limitation, having regard to a State's responsibility to its people, including Its responsibility to protect the interests Ot the public. (Street v Q ueensland Bar A ssoeiatiffl (1999) 169CLR 461.)

The object of the provisions of the Bin, as stated in the second reading speech, is the prevention Of corruption in public Kfe. It Is said that corruption becomes more likely as political parties compete for funds required to pay for expensive television and radio election advertising. There is little doubt that the social problem,

generally is one that the Commonwealth has power to control in relation to its own elections. If, however, the Constitution does guarantee a degree of freedom of speech In connection with those elections, the issue is whether the legislative means chosen to deal with the problem are appropriate and not out of proportion to the object. This requires an examination of alternative means of achieving the end that may not require such a considerable impairment of the constitutionally protected interests.

It Is, in my view, arguable that the provisions of the Bill go beyond what Is reasonably appropriate or adapted to regulating what might broadly be called electioneering. Corruption, for example, can be directly tackled by other means, Expenditure for election purposes can be directly controlled. It is argued by the

government, however, that these and other methods are not likely, as a practical matter, to be effective.

It can nevertheless be argued that the provisions of the Bill are out of proportion to the legislative objects, having regard to the need to preserve freedom of speech and persuasion during election campaigns. Obviously to prohibit any expenditure on an object means that there is no need for funds for that object, That in turn results in a n absence of corrupt or nefarious m eans that might be u sed to obtain fu n d s, it also docs away with the advantage one party would have if U had greater access to funds (another object claimed for th e provisions). Clearly, however, a


prohibition on all expenditure In putting one's case to the electorate would derogate from the concept of a free election, The Issue is one of degree, and it is arguable that thie BUI oversteps the limit, particularly when other means might be available.

As mentioned above, however, this argument rests on the premise that the Constitution restricts the Commonwealth Parliament from restraining political activity in relation to an election. There are as yet no decisions or even judicial «totemwats to this effect, That is why I have merely said that the position is

arguable and have not expressed a arm opinion.

Section 9 2

Section 62 of the Constitution provides in part that:

•On the imposition of uniform duties of custom*, trade, commerce and intercourse among the States, whether by means erf" internal carriage or ocean navigation, shall be absolutely free."

This provision is binding on both the Commonwealth and the States, to C olev Whitfield (1988) 188 CLR 880 the High Court gave a new interpretation to the section in relation to trade and commerce. It was held that, tn that respect, the provision was aimed at legislation and governmental acta which discriminated against interstate trade and had a protectionist purpose or effect. From the viewpoint of broadcasting ma trade and commerce the provisions of the Bill are not, in thetr operation, discriminatory, nor do they have the effect of protecting the industry or commerce of one state from competition frem that of another.

to cefojy Whitftrid. however, the Court said the different considerations applied to the guarantee of freedom of intercourse among the States. They said it was a guarantee of personal freedom (at 383), it follows that m considering whether legislation purports to interfere with the individual right to freedom of interstate

intercourse, It to not a sufficient Justification that the legislation docs not discriminate against interstate intercourse and to not protectionist tn nature.

While much broadcasting comes within the notion of trade and commerce, communication by means of broadcasting could also be regarded as •intercourse" tor purposes of section 92, The issue then arises whether the greater protection given to intercourse is confined to non-commercial intercourse. I understand that

that issue was the subject of argument in the recent case relating to the validity of provisions governing "contempt" of the Industrial Relations Commission. Judgment has not yet been delivered.

Assuming, however, that communication of messages among the States by means of broadcasting, whether for reward or not, is protected as "intercourse" among the States, it is clear, in ray view, that its control end regulation would require clear social need. The only examples given by the Court tn Cole v whitflsld were rules restricting a pedestrian use of a highway for the purpose of his crossing, and authorising the arrest of a fugitive offender from one State at the moment of his departure into another State. The extent of the freedom can perhaps be gauged

from the fact that their Honours declared that "some forms of Intercourse are so immune from legislative or executive interference that, if a like immunity were accorded to trade and commerce, anarchy would result", (383). It seams to me that whether the provisions of the BUI amount to a reasonable regulation Of Interstate intercourse is substantially the same issue as l have discussed above in connection with Commonwealth election».

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T h » Wrmriw$nr> a t *ΤΓγ«Î½» T im e 11

I understand from the newspapers that Sir Maurice Byers has advised that the provisions of the Bill providing for 'free election broadcasting time* in Division s would, tf enacted, be invalid. It appears that he considers that the provisions are inconsistent with s SKxxxl) of the Constitution. That provision gives the Commonwealth power to make laws with respect to T h e acquisition of propet ty on Ju st term s from any State or person far any purpose in respect of which the

Parliament has power to make laws.*.

The provisions of Division 3 require broadcasters to make free time (which is determined by the Tribunal in accordance with the provisions of the Bill) available without charge (section 95 DL). Sub-section (7k however, entitles the licensee to 'su ch additional broadcasting time, tor the purpose of broadcasting other material,

as to determ ined in accordance with the regulations.*

The issues are whether the provisions would amount to an acquisition of property and, if so, whether they provide for ^ust terms". The validity of these provisions could be of relevance in respect of the validity of section 95B, relating to Commonwealth elections, because the reasonableness or appropriateness of the provisions might be affected by other opportunities given to candidates to state their views and policies.

I am of the view that a provision that broadcasting faculties be made available to another person without charge would, in appropriate circumstances. be an acquisition Of property. In Minister of State for the Army v Dalztel (1944) 68 CLR 3 6 1 , it was held that the taking of possession of a parking station on vacant land leased on a weekly tenancy was an acquisition of property, even though the regulations did not result In the Commonwealth acquiring any legal or equitable

interest tn the property, rt was merely the taking of temporary occupation. The Court bad regard to the fact that section 61(xxxt) was to effect an individual guarantee that had to be construed broadly. This latter view has been reiterated on many occasions. Ill the Bank NationaH*

*1 take the Minister of Slate for the Army ▼ Paizlri to mean that section 5l(xxxti is not to be confined pedantically to the taking of title by the Commonwealth to some spectoc estate or interest in land recognised at law or In equity and to some specific form of property in

a chattel or chose in action similarly recognised, but that it extends to innominate and anomalous interests and includes the assumption and indefinite continuance of exclusive possession and control for the purposes of the Commonwealth of any subject of property.*

He went on to say that "the paragraph should be given as full and flexible an operation as win cover the objects it was designed to effect."

The temporary use of the broadcasting facilities required to be given to another person under compulsion of law is, to my view, similar to the temporary use and possession of the parking station dealt with nsfr-icTa r***. The fact that the ^acquisition* to by persons other than the Commonwealth does not take the matter out of the provisions of section 51(jood): Trade Practices Οοπμηΐ^ρ (9h v Tooth Lid (1979) 142 CLR 397.

It might be argued that what is required to be given in this case is ft service rather than property. Section Slbood) is n o t concerned with the com pulsory perform ance of services. But connected as it is with the use of physical faculties, I am of the opinion that the provision* for "free time" would amount to an acquisition of

JM 0 7

property, Put tor Use feet that those provision# would constitute term· end condition» of the broadcasting licence.

Section 126 of the prfmrirg*tmg· Act 1942 provides as follow»!

"Every licence granted or deemed to have been granted under this Act shell be subject to the provisions of this Act and the regulations eo far »· they are applicable to the licence, and those provisions shall be deemed to be incorporated to the licence as terms and conditions of

the licence.*

The broadcasting rights included tn the licence are therefore conditional on the provision* of tho Act· Itt oiy view* this toesms the provisions of ths Act from titxis to tim e rorvtaw Ittnwd M etal Pty Ltd v P art ft e A cceptance C o rp o ratio n Ltd (1963) 106 CLR 276 a t 880).

Ttie licence was therefore applied for and granted on the basis that it te subject to the provisions of the Act, 'Hie 'compulsion* to provide the service and use of the property arises only because the licensee desires the licence. The conditions bind the licensee only because he or she has applied for and obtained the licence. That is a voluntary act. II now eeems clear that section 5l(wod) is confined to compulsory acquisition f Trade Practices CommlMlon v Tooth A Ca_Ltd (1979) 142 CLR 397 at 416 and cases cited there). It is true that once the licensee has and retains the licence, the licensee is not free to refuse to give the "free time", but I am

of the view that the Court would see this as a consequence of the voluntary act of accepting the licence.

It might be argued that the above is a reasonable description of the position of a licensee where the licence 1» granted or renewed after the provisions become law. but that is not the case tn respect of existing licensees. The existing licensee» would not have known of the "condition* at the time they accepted the licence, I do

not consider any such distinction would be drawn. The licensee accepts the licence subject to section 189 which, as i have said, covers provisions enacted from time to time. It to therefore similar, to that respect, to section 85 providing for a variation of licence conditions.

In the R ank M atlonaiisation c&att (1948) 76 CLR l . Dixon J emphasised that, being a constitutional guarantee, the Court, in applying section 51baud) should not rely mere legal form and should determine whether a provision was tn substance an acquisition, tn that ease the statutory provisions enabled the Commonwealth to substitute Its own nominees for the directors of a banking company. The director· had power to determine the terms on which the, assets of the company could be disposed of. It was argued that the assets remained the property of the company and no compensation was therefore required. Dixon J declared that although the

Commonwealth bad acquired no ownership of property recognised by tew, the provisions amounted to "but a circuitous device to acquire indirectly the substance of a property interest" (348-50).

I do not think that that is the case here. One could uut, in my view, describe the licensing scheme generally as a device to give parties tree broadcasting time. The provisions of the BIB relating to free time, tike the provisions for the Minister taking control in time of emergency (section 13 D or free time for Items of national Interest

(section 104) or divine worship (section 103) are clearly Incidental to the scheme aa a whole. The Act to not a device to achieve the objects of those provisions.

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The only doubt l have had to this regard relates to the toot th a t section 182 of the Act makes a contravention of the provision of the A etna offence and provide# for penalties. The provisions tor free time, therefore, are not merely terms and conditions of the licence, t have come to the conclusion, however, that, whatever may be the constitutional validity of the provisions a# penalties under the Act, that would not affect their operation ns terms and conditions of the Uoenoe (section 16A n f fh a Antw m tg r p ritM Hnn A r t!

Yours sincerely

I Robert Qarren Professor of law