Australian Capital Television Pty. Limited and Others v. The Commonwealth (1992) 177 CLR 106: implication of freedom of communication contained in the Constitution extends to all political matters

Facts: The plaintiffs sought declarations that Part IIID of the Broadcasting Act 1942 (Cth) was invalid. Part IIID contained a series of provisions prohibiting the radio and television broadcasting of political material (political advertisements broadcasts) and other provisions compelling broadcasters to provide free election broadcasting time during an election period. It was conceded by the plaintiffs that these provisions came within one or more heads of Commonwealth power. Thus, the critical question was whether there was an implied guarantee of freedom of expression in the Constitution, at least in relation to public and political discussion and, if so, whether Part IIID contravened that guarantee.

Held per Mason CJ, Deane, Toohey and Gaudron JJ: that Part IIID was wholly invalid on the ground that it infringed the right to freedom of communication on matters relevant to political discussion that was implied in the system of representative government for which the Constitution provided. Per Mason CJ, the implied freedom of communication extends to all matters of public affairs and political discussion, not withstanding that a particular matter at a given time might appear to have a primary or immediate connection with the affairs of a State, a local authority or a Territory and little or no connection with Commonwealth affairs. Per Deane, Toohey and Gaudron JJ, the implication of freedom of communication contained in the Constitution extends to all political matters, including matters relating to other levels of government, within the national system which exists under the Constitution.

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