Nationwide News Pty. Limited v. Wills (1992) 177 CLR 1: attack on the integrity and independence of the Australian Industrial Relations Commission

Facts: The plaintiff (Nationwide News) was the holding company of the proprietor of The Australian (a nationwide Australian newspaper). In 1989 an article was published in that paper which contained an attack on the integrity and independence of the Australian Industrial Relations Commission and its members. The plaintiff was prosecuted under s299(1)(d)(ii) of the Industrial Relations Act 1988 (Cth) which reads ‘A person shall not ... by wiring or speech use words calculated ... to bring a member of the Commission or the Commission into disrepute.’ The defendant challenged the constitutional validity of s299(1)(d)(ii).

Held: The court held unanimously that the challenged provision was invalid, however, the way in which that conclusion was reached in the different judgments differs widely. Mason CJ, Dawson and McHugh JJ held that the provision was invalid on the ground that the protection it afforded the Commission was so disproportionate that it stood outside the incidental scope of the power in s51(xxxv) of the Constitution (the constitutional power to make laws with respect to conciliation and arbitration for the prevention of industrial disputes). Brennan, Deane, Toohey and Gaudron JJ held that the law may have been within the scope of s51(xxxv) but, in any event, the law infringed the Constitution’s implied right to freedom of communication about matters relating to the government of the Commonwealth.

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