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Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 1; (1992) 104 ALR 389; (1992) 66 ALJR 214 (15 January 1992)

CATCHWORDS

HEARING

DECISION

2. In the second action the plaintiff is the State of New South Wales and the defendants are the Commonwealth and the Australian Broadcasting Tribunal. In this action New South Wales seeks an interlocutory injunction restraining the defendants from:
"enforcing or causing to be enforced the provisions of
Part IIID of the Broadcasting Act 1942 both in respect of
the by-election for the New South Wales Electoral District
of The Entrance or any other by-election to the Legislative
Assembly of New South Wales".
Wales case for an interlocutory injunction, as distinct from its case for final relief, is based principally, if not solely, upon an argument resting in statutory construction which I shall explain later. The Commonwealth resists the grant of interlocutory relief in both motions while the Tribunal submits to such orders as the Court may make.

3. Part IIID of the Act, which was introduced by the Political Broadcasts and Political Disclosures Act 1991 (Cth), contains a series of provisions prohibiting the radio and television broadcasting of political material and other provisions compelling broadcasters to provide free election broadcasting time during an election period. These provisions create an obligation to broadcast free of charge what are called "units of free time" allocated by the Tribunal to political parties, persons and groups.

4. I infer that compliance with the prohibitions and the "free time" requirement will have an adverse effect on the revenue of the plaintiff licensees, but how serious that effect will be in relation to the licensees collectively and individually I am unable to determine on the evidence before me. That evidence relates to substantial receipts from the sale of air time to political parties and candidates by licensees in the last election in the Australian Capital Territory and the last House of Assembly election in Tasmania. According to that evidence, the plaintiff licensees' principal source of revenue is the sale of "air time". Air time is sold by each licensee to advertisers at negotiated rates and the remaining air time is available for purchase from each licensee at rates set out in rate cards separately compiled and adopted by it. The broadcasting industry currently operates under a system known as "self-regulation" with the result that each licensee is at liberty to sell for reward all its air time, there being no limitation or restriction on the time which a licensee may allocate to advertisements or programmes sponsored by advertisers.

5. Elections current or in prospect at this time to which Pt IIID applies are the by-election for the New South Wales electoral district of The Entrance in the Legislative Assembly for which the polling day is 18 January 1992, the election for the House of Assembly in Tasmania for which the polling day is 1 February 1992 and an ordinary election for the Legislative Assembly for the Australian Capital Territory which is to be held on 15 February 1992.

6. The scheme of regulation for which Pt IIID provides contains two principal elements together with additional provisions relating to "policy launches". The first principal element consists of a series of provisions prohibiting the broadcasting of political matter during an election period. The prohibitions relate to Commonwealth Parliament elections or referenda, Territory elections (including local government elections) and State Parliament and local government elections. It will be sufficient for me to refer to the provisions which deal with the first of these three categories. Broadly speaking, the provisions governing the other two categories are similar in effect.

7. In relation to Commonwealth Parliament elections and referenda, the broadcasting of "any matter (other than exempt matter)" - an expression which is narrowly defined - "for or on behalf of the government, or a government authority, of the Commonwealth" is prohibited during an election period. (1) s.95B(1). In the same period, the broadcasting of "a political advertisement for or on behalf of a government, or a government authority, of a Territory" or "of a State" is prohibited. (2) s.95B(2) and (3). There is a further prohibition in s.95B(4) which is in these terms:

"Subject to Divisions 3 and 4, a broadcaster must not,
during the election period in relation to an election or a
referendum, broadcast a political advertisement:
(a) for or on behalf of a person other than a
government or government authority; or
(b) on his or her own behalf."

8. Specific provision for a by-election is made by s.95B(5) as follows:

"Where the election concerned is a by-election, this
section is taken to apply only to broadcasting:
(a) in the case of a broadcast made as part of a
broadcasting service without a service area - to
the area in which the relevant electoral district,
or any part of it, overlaps with the area in which
the broadcasting service is normally received; and
(b) in the case of a broadcast made as part of a
broadcasting service with a service area - to the
area in which the relevant electoral district, or
any part of it, overlaps with the service area."

9. The expression "political advertisement" is defined to mean "an advertisement that contains political matter". (3) s.95B(6). The expression "political matter" is defined to mean: (4) ibid.

"(a) matter intended or likely to affect voting in the
election or referendum concerned; or
(b) matter containing prescribed material;
but does not include exempt matter".

10. The word "election" is defined so as to include a by-election; (6) s.4(1). and the expression "election period" is also defined by s.4(1). The meaning of this expression varies in its application. So, in the case of an election to the Legislative Council of Tasmania or an ordinary election to the Legislative Assembly for the Australian Capital Territory, the period is that which starts 33 days before the polling day for the election and ends at the close of the poll on that day. In relation to any other election to a Parliament, the relevant period is that which starts on:

"(i) the day on which the proposed polling day for the
election is publicly announced; or
(ii) the day on which the writs for the election are issued;
whichever happens first, and ends at the close of the poll
on the polling day for the election". (7) ibid.

11. The second principal element in the regulatory scheme is the imposition of an obligation upon broadcasters to broadcast during an election period units of free time allocated by the Tribunal under s.95P(3). The obligation imposed upon the broadcaster by s.95Q(1) is to make units available for use in making one or more election broadcasts on behalf of the political party, person or group to whom the time is granted. The election broadcast is to be made free of charge. (8) s.95Q(5). Section 95H(1) requires the Tribunal to grant a period of free time to each political party that:

"(a) was represented ... in the relevant Parliament or
legislature immediately before the end of the last
sittings ... held before the election; and
(b) is contesting the election with at least the prescribed
number of candidates".

12. The total free time period to be granted under that sub-section is the period equal to 90% of the total time in respect of the election. "Total time" means (9): (9) s.95H(4).

"in relation to an election ... the total free time
available in respect of the election, being a time worked
out in accordance with the regulations".

13. Section 95J, a provision to which I shall return, provides:

"This Part does not apply in relation to an election to
the Parliament of the Commonwealth or of a State, or in
relation to an election to the legislature of a Territory
until regulations are made for the purposes of section 95H
that relate to that election."

14. No regulations have been made with respect to The Entrance by-election. That is because s.95H(1) has no application to a parliamentary by-election. Section 95H(4) defines "election" for the purposes of the section so as to exclude such a by-election.

15. The impact of the regulatory regime is to some extent alleviated by other provisions in Pt IIID. Section 95A(1) provides:

"Nothing in this Part prevents a broadcaster from broadcasting:
(a) an item of news or current affairs, or a comment on
any such item; or
(b) a talkback radio program."

16. In the first action, the plaintiff licensees contend that Pt IIID is invalid on a number of grounds. The obligation to provide free time is said to constitute an acquisition of property otherwise than upon just terms contrary to s.51(xxxi) of the Constitution. More particularly, the prohibitions are said to constitute a contravention of (1) an express guarantee of freedom of communication contained in s.92 of the Constitution, (2) an implied guarantee of a right or freedom of access to, and criticism of, federal institutions amounting to a right or freedom to communicate one's views in relation to the political and electoral processes, and (3) an implied right, arising from the concept of citizenship, to communicate one's views on any matter. In addition, it is argued that federal legislative power does not extend to the regulation of State elections. This argument is based on an absence of legislative power - the power conferred by s.51(v) is said not to travel so far - and the implied prohibition against interference with the capacity of a State to function in its legislative, executive and judicial capacities.

17. In the second action, New South Wales challenges the validity of Pt IIID on similar grounds except that it does not at this stage appear to rely upon an implied general right or freedom of communication based on citizenship. However, the State does specifically argue that Pt IIID cannot be characterized as a law with respect to the subject-matter of s.51(v) and that the provisions of the Part single out the States for discriminatory treatment, for example, vis-a-vis charitable organizations.

18. A number of the arguments which I have mentioned were advanced in the recent case, Nationwide News Pty. Ltd. v. Wills, in which the Court has reserved judgment. It is sufficient for me to say that, as Mr Rose Q.C. for the Commonwealth conceded, these arguments give rise to serious questions, without there being a need for me to form a view as to the strength of the remaining arguments, except to say that, generally speaking, they merit the attention of the Full Court.

19. However, accepting that the validity of Pt IIID is a serious question to be determined and assuming that the plaintiff licensees and the State will suffer irreparable injury which is not compensable if the legislation is complied with or enforced, I do not consider that, as things presently stand, I should grant the interlocutory relief sought in the two actions to the extent that the case for that relief is based on constitutional grounds. In Castlemaine Tooheys Ltd. v. South Australia, (12) [1986] HCA 58; (1986) 161 CLR 148. I discussed the principles governing the grant of interlocutory relief pending the determination in an action of the validity of a statute challenged on constitutional grounds. I pointed out that: (13) ibid., at pp 155-156.

"In the absence of compelling grounds, it is the duty of the
Court to respect, indeed, to defer to, the enactment of the
legislature until that enactment is adjudged ultra vires."

20. In the present actions, the plaintiffs seek injunctions against the defendants enforcing or causing the relevant provisions of the statute to be enforced against them. There is as yet no specific threat by the defendants to take any action against the plaintiffs under the legislation. All that has happened is that the Tribunal has called the attention of licensees to their obligations under the Act and to the consequences of non-compliance. Sir Maurice Byers Q.C. for the plaintiffs in the first action concedes that it would not be proper for me to restrain the Commonwealth or the Director of Public Prosecutions from commencing prosecutions for violations of the Act in the event that the plaintiff licensees do not comply with the statutory provisions. No other specific action or step is threatened by the defendants which could be the subject of a restraining order. What the plaintiffs really seek is an injunction in the terms sought which would give them an immunity against any executive action by way of enforcement of the law pending this Court's decision on the question of validity. To grant relief on this footing would, in my view, fail to recognize sufficiently the fact that the statute is in operation and that, assuming its validity, it is currently a source of legal rights and obligations producing legal consequences.

21. It seems to me that the plaintiff licensees must decide for themselves whether they are justified, on the basis of the legal advice they have received, in refusing to comply with the statutory provisions. If they refuse to comply, then it may be that the Tribunal will seek to exercise its powers under the Act. One such power is to suspend a commercial licence under s.88 for breach of a condition of a licence, the provisions of the Act being conditions of the licence. (14) s.129. Another power is to apply to the Federal Court for an order preventing a contravention or a repetition of a contravention of the relevant provisions. (15) s.95U.

22. In the event that the Tribunal threatens to take specific action following a failure to comply with the statute, it is possible that a different situation might arise in which it is, perhaps, conceivable either that interlocutory relief could be granted or that the Federal Court would refrain from making an order under s.95U. On this aspect of the case I say no more than that, in accordance with the submissions made by the plaintiffs, I shall reserve liberty to apply to all parties.

23. In refusing interlocutory relief on the constitutional grounds, I have taken into account the possibility that, if the statutory provisions are complied with and the plaintiffs' contention as to invalidity be ultimately upheld, the electoral processes in The Entrance by-election, the Tasmanian election and the Australian Capital Territory election might be compromised. However, I have not had the benefit of detailed argument on this aspect of the case and, at this stage of the proceedings, I do not consider that it is a factor of sufficient weight or cogency to warrant the grant of injunctions in the terms now sought by the plaintiffs.

24. There remains for consideration the separate argument of the Solicitor-General for New South Wales that when s.95J is read with s.95H, Pt IIID on its true construction does not apply to by-elections. As I have already pointed out, the Tribunal's obligation to grant a period of free time under s.95H(1) has no application to a by-election.

25. It will be noticed that in s.95J the word "Part" has been used instead of "Division" and that the word "election" is not defined for the purpose of s.95J in the restricted sense in which it is defined for the purposes of s.95H. So the Solicitor-General says that Pt IIID cannot apply to by-elections because regulations cannot be made under s.95H in relation to them. He draws some support for this argument from the legislative history of proceedings in the Parliament with respect to the passage of the Bill which originally took a different form.

26. However, the provisions of ss.95B(5), 95C(6) and 95D(5) make it clear that the prohibitions against the broadcasting of political material apply to by-elections. It would, I think, make a mockery of these provisions if s.95J were to be read as saying that the prohibitions never apply to such by-elections simply because regulations can never be made with respect to them under s.95H. Section 95J should, in my view, be read as saying that the Part does not apply in relation to an election in respect of which regulations can be made under s.95H until such regulations are made.

27. Accordingly, I would refuse the application for an interlocutory injunction on this ground also.

28. In the result I make the following orders:
Motions for interlocutory injunctions dismissed. Liberty reserved to each party to apply on two days' notice. Costs of the motions to be defendants' costs in the action, the costs of the defendant Tribunal to be limited to those of a submitting respondent.

29. On the summons for directions I make orders (1) and (2) as asked. I expedite the hearing of the actions and fix 17 March 1992 as the date of the hearing of the substantive questions of validity before the Full Court. At this stage, I assume that the Commonwealth will demur to the statements of claim. If that assumption proves to be incorrect, I shall re-list the summons for directions with a view to stating a case or reserving questions for the consideration of the Full Court. I adjourn the summons for directions generally with liberty to each party to restore on two days' notice. Costs of the summons will be costs in the action.

ORDER

(1) Liberty be reserved to the parties to apply
on two days' notice; and
(2) The costs of the motions be the defendants'
costs in the action and that the costs of the
Australian Broadcasting Tribunal be limited
to those of a submitting respondent.

On the summons for directions, order that:
(1) Proceedings S5 and S6 of 1992 be heard together; (2) The hearing of

demurrer or otherwise, be expedited and fixed for 17 March 1992;
(3) The defendants in proceedings S5 and S6 file and serve
any defence and demurrer within fourteen days of service
of the statement of claim;
(4) The costs of the summons be costs in the actions; and (5) The summons

party to restore on two days' notice.