Since my Public exam is on monday(!), this is good practice looking this stuff up.. most of this is courtesty of the textbook
Feel lucky minai because I would never bother going through this endless jibberish otherwise!
Australian Capital Television
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, involved a challenge to the validity of the
Political Broadcasts and Political Disclosures Act 1991 (Cth), which added a new Pt IIID dealing with "Political Broadcasts" to the
Broadcasting Act 1942 (Cth). Section 95B imposed a blanket prohibition on political advertisements on radio or television during federal election periods. Division 3 of Pt IIID established a scheme that provided "free time" for political advertising.
There was no suggestion Pt IIID was not within power under s51(v) of the Constitution or under the Commonwealth's various powers with respect to federal elections. The question before the court was whether Pt IIID was invalid because it infringed a constitutionally guaranteed freedom of political discussion.
Mason CJ, Deane, Toohey and Gaudron JJ held that Pt IIID was wholly invalid on that basis. McHugh found that Pt IIID was invalid except in relation to 95C, which concerned Territory elections. All five majority judges committed themselves to an implied constitutional protection for freedom of political discussion. Only Dawson J rejected that conception. Brennan J agreed that there
was such an implication, but held that the provisions were
valid as a reasonable restriction on the protected freedom.
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The Responsible Government Argument: Mason CJ states that the freedom is
"indispensable to [governmental] accountability" and thereby to representative democracy. [paras 138-139].
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Mason CJ's criterion of legislative validity - can be found in paras 142-144. Mason CJ states that whatever the scope of the freedom, it is not absolute, and must be counterbalanced by public interests.
"If the restriction imposes a burden on free communication that is disproportionate to the attainment of the competing public interest, then the existence of [144] the disproportionate burden indicates that the purpose and effect of the restriction is in fact to impair freedom of communication."
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Gaudron J's criterion of legislative validity - Gaudron J introduced "proportionality" as the test of validity [clearly written at paras 217-218]. Her Honour says that the implied freedom is one depending substantially on "the general law", where its limits are marked out. Gaudron J says that the laws on defamation, sedition, blasphemy, obscenity and offensive language, will therefore be an indication of the kind of regulations that should be used for freedom of political discourse. Gaudron J says that the government can regulate political discourse to the extent that "reasonably and appropriately adapted" to achieve some end within the limits of that power -- referring to
Davis v The Commonwealth. This sounds very vague, but her honour then says
"...what is reasonable and appropriate will, to a large extent, depend on whether the regulation is of a kind that has traditionally been permitted by the general law."
Gaudron J then questioned whether Pt IIID could be justified as being "[218] reasonably and appropriately adpated" to the regulation fo broadcasting under s51(v). She found that NO, it was disproportionate and invalid. (Note Brennan J held that the test of proportionality was satisfied: paras 159-160).
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Note: Mason CJ acknowledged that the framers of the Australian Constitution had deliberately rejected the United States model of constitutional enshrinement of judicially enforceable rights, preferring to leave the protection of personal liberty to the processes of responsible government and the common law.
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Note: Mason CJ left open the question as to whether freedom of political discussion was substantially different from an unlimited freedom of expression generally [and therefore whether it could be expanded], but he made some remarks [at para 142] that the freedom to communicate with respect to public affairs and political discussion "does not lend itself to subdivision".
Nationwide News
In
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, the publisher of the Australian had been prosecuted under s299(1)(d)(ii) of the
Industrial Relations Act 1988 (Cth), which provided that: "A person shall not...by writing or speech use words calculated...to bring a member of the [Industrial Relations] Commission into disrepute".
The High Court unanimously held that s299(1)(d)(ii) was invalid. Mason CJ, Dawson and McHugh JJ did so on the ground that it was not within the scope of the implied incidental power attaching to s51(xxxv). Brennan, Dean, Toohey and Gaudron JJ adopted a different course. They held that even if the said section was within power (as both Brennan and Gaudron JJ thought it was), it was nevertheless invalid as infringing an implied freedom of political discussion.
- Note that Dean and Toohey JJ went on, without finally deciding, to suggest that the freedom must extend to
State political matters as well as
Commonwealth political matters.
- Note Deane and Toohey expressed the criterion of legislative validity at para [76].
Those are bits and pieces for each case I thought might be useful. As for the others, they are in relation to defamation --
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Overview of Lange v ABC, may be useful
