Australian Capital Television Pty Ltd v The Commonwealth

Australian Capital Television Pty Ltd v The Commonwealth - [1992] HCA 45 - HCA 1992 case summary — Zoe

[54]

But, and this is the critical point, the overseas experience does not refute the proposition that Pt IIID impairs freedom of discussion of public and political affairs and freedom to criticize federal institutions in the respects previously mentioned. Thus, the Commonwealth's claim that Pt IIID introduces and maintains a "level playing field" cannot be supported if that claim is to be understood as offering equality of access to all in relation to television and radio. It is obvious that the provisions of Div. 3 regulating the allocation of free time give preferential treatment to political parties represented in the preceding Parliament or legislature which are contesting the relevant election with at least the prescribed number of candidates. Their entitlement amounts to ninety per cent of the total free time. Others must of necessity rely on the exercise of discretion by the Tribunal. As among the political parties, the principle of allocation to be applied will tend to favour the party or parties in government because it gives weight to the first preference voting in the preceding election. Furthermore, a senator who seeks re-election is given preferential treatment over a candidate, not being a senator, who stands for election to the Senate. The former, but not the latter, is entitled to a grant of free time. The latter must rely on an exercise of discretion by the Tribunal and the Act makes no attempt to enunciate the criteria according to which that discretion is to be exercised. The provisions of Pt IIID manifestly favour the status quo. More than that, the provisions regulating the allocation of free time allow no scope for participation in the election campaign by persons who are not candidates or by groups who are not putting forward candidates for election. Employers' organizations, trade unions, manufacturers' and farmers' organizations, social welfare groups and societies generally are excluded from participation otherwise than through the means protected by s. 95A. The consequence is that freedom of speech or expression on electronic media in relation to public affairs and the political process is severely restricted by a regulatory regime which evidently favours the established political parties and their candidates without securing compensating advantages or benefits for others who wish to participate in the electoral process or in the political debate which is an integral part of that process.

[88]

The Commonwealth v. John Fairfax & Sons Ltd. (1980), 147 C.L.R. 39, at p. 52, per Mason J.; this statement was approved in Attorney-General v. Guardian Newspapers Ltd. [No. 2], [1990] 1 A.C. 109, at pp. 258, 270, 283. 2. Attorney-General v. Guardian Newspapers Ltd [No. 2]; Hector v. Attorney-General (Antigua and Barbuda), [1990] 2 A.C. 312, at p. 318, per Lord Bridge of Harwich; Derbyshire County Council v. Times Newspapers Ltd., [1992] 1 Q.B. 770, at pp. 814-815, per Balcombe L.J.; pp. 823-824, per Ralph Gibson L.J.; pp. 831-832, per Butler-Sloss L.J. 3. New York Times Co. v. Sullivan (1964), 376 U.S. 254; Smith v. Daily Mail Publishing Co. (1979), 443 U.S. 97, at p. 106, per Rehnquist J.: "Historically, we have viewed freedom of the speech as indispensable to a free society and its government." 4. Re Alberta Legislation [1938] 2 DL.R. 81, at pp. 107-108, per Duff C.J. and Davis J.; Re Fraser and Public Service Staff Relations Board (1985), 23 D.L.R. (4th) 122, at p. 128, per curiam; Retail, Wholesale & Department Store Union, Local 580 v. Dolphin Delivery Ltd., (1986) 33 D.L.R. (4th) 174, at p. 183, per McIntyre J. (with whom all members of the Supreme Court of Canada agreed on this point): "Freedom of expression is not a creature of the Charter. It is one of the fundamental concepts that has formed the basis of the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection." 5. Handyside v. United Kingdom (1976), 1 E.H.R.R. 737, at p. 754; The Sunday Times Case (The Sunday Times v. United Kingdom) (1979), 2 E.H.R.R. 245; Lingens v. Austria (1986), 8 E.H.R.R. 407, at p. 418; The Observer and the Guardian v. United Kingdom (1991), 14 E.H.R.R. 153, at pp. 191, 200, 206-207, 216, 217, 218; The Sunday Times v. United Kingdom [No. 2] (1991), 14 E.H.R.R. 229, at p. 247.

[124]

It is convenient in the context of Pt IIID to speak of the implied limitation as a freedom of communication, for the terms are reciprocal: the extent of any relevant limitation of legislative power is the scope of the relevant freedom. But, unlike freedoms conferred by a Bill of Rights in the American model, the freedom cannot be understood as a personal right the scope of which must be ascertained in order to discover what is left for legislative regulation; rather, it is a freedom of the kind for which s. 92 of the Constitution provides: an immunity consequent on a limitation of legislative power. The power cannot be exercised to impair unduly the freedom of informed political discussion which is essential to the maintenance of a system of representative government. Whether that freedom is regarded as an incident of the individual right to vote [31] or as inherent in the system of representative and responsible government prescribed by Ch. I of the Constitution, it limits the legislative powers otherwise conferred on the Parliament. The freedom begins at a boundary varying with the subject matter of each law. In an extreme case - for example, a law imposing wartime censorship - the freedom to discuss matters of defence may be virtually eliminated. The variable boundary of the freedom follows from the consideration that, in order that a law may validly restrict a freedom of communication about political or economic matters, the restriction must serve some other legitimate interest and it must be proportionate to the interest to be served. Thus, a law which (being otherwise within power) forbids the publication of fraudulent or obscene material, or of seditious utterances or of defamatory matter without justification or excuse, or of advertisements for dangerous or prohibited drugs, is a law which trespasses upon absolute freedom to communicate, but it is a valid law provided the restrictions imposed by the law are proportionate to the interest which the law is calculated to serve. The proportionality of the restriction to the interest served is incapable of a priori definition: in the case of each law, it is necessary to ascertain the extent of the restriction, the nature of the interest served and the proportionality of the restriction to the interest served.

[158]

By eliminating the opportunity, s. 95B eliminates the practical need to engage in the most expensive form of media advertising available to influence voter opinion in an election campaign. The restriction on political advertising as a means of reducing the expenditure on election campaigns is not a novel experiment unique to Australia. The Senate examined the position in other liberal democracies and found that the position was "complex", being affected by the regime governing broadcasting in each country. In some countries, no advertising is permitted; in others no political advertising is permitted, or none during specified periods. It appears that, for one reason or another, paid political advertising is not permitted during election times in the United Kingdom, Ireland, France, Norway, Sweden, Denmark, Austria, The Netherlands, Israel or Japan. Paid political advertising is permitted during election periods in Germany, Canada (for twenty-eight days only), the United States and New Zealand. It is also permitted in Switzerland but "there is little advertising by political parties on the electronic media due to the high costs involved" [35] . Many of the countries which ban paid political advertising during election times have constitutions guaranteeing the right to freedom of expression [36] . Although Art. 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms guarantees a freedom to "impart information and ideas", a challenge to the ban on political advertising on British television failed [37] . The European Commission of Human Rights held it to be evident that the freedom guaranteed by Art. 10 "cannot be taken to include a general and unfettered right for any private citizen or organization to have access to broadcasting time on radio and television in order to forward its opinion" [38] . It held that the recognition of a State's power to license broadcasting and television permitted the granting of licences which excluded political advertising.

[169]

[T]o confine the power of the Parliament to a supervision of the mechanism [of voting] is to neglect the vital principle behind it. The vote of every elector is a matter of concern to the whole Commonwealth, and all are interested in endeavouring to secure not merely that the vote shall be formally recorded in accordance with the opinion which the voter actually holds, free from intimidation, coercion and bribery, but that the voter shall not be led by misrepresentation or concealment of any material circumstance into forming and consequently registering a political judgment different from that which he would have formed and registered had he known the real circumstances. In Evans v. Crichton-Browne [46] the Court said that this statement "is no doubt true as a statement of general principle", though the Court construed s. 161(e) of the Commonwealth Electoral Act 1918 to refer merely to the recording of an elector's political judgment [47] . The legislative power of the Parliament over elections thus extends to the making of laws governing the publication of material calculated to affect the voters' electoral judgments, even to the extent of prohibiting the publication of misleading information [48] . It is precisely because the power is so broad that it is necessary to imply some limitations which preclude its exercise to destroy or substantially to impair the system of representative democracy which the power is created to serve. The freedom of communication which is essential to the maintenance of a representative democracy must be respected, especially during an election campaign. Although s. 95B bears the character of a law with respect to broadcasting and Commonwealth elections, it restricts the freedom of communication and such a restriction is valid only if it be proportionate to the legitimate ends which it is appropriate and adapted to serve. 1. (1912) 15 C.L.R. 355, at p. 357. 2. (1912) 15 C.L.R., at p. 362; see also, pp. 358-359, per Griffith C.J. 3. (1981) 147 C.L.R. 169, at p. 206. 4. ibid., at pp. 207-208. 5. Reg. v. Gray; Ex parte Marsh (1985), 157 C.L.R. 351, at p. 370, per Gibbs C.J.

[180]

restriction of television advertising would not adversely affect any elements of the right to freedom of speech On the contrary, they argued that banning televised advertising by political parties and pressure groups "might well safeguard aspects of Australian democracy which televised political advertising itself has put at risk" . [58] Reciting the opinion of persons experienced in political advertising by television, the Committee expressed its view [59] : The weight of this evidence confirmed for the Committee the debased nature of most political advertising, its alienating effects and its universal failure to convey information about policies to the voters. The Committee does not dismiss lightly the opposition to the bill on the grounds that it would restrict freedom of speech, but it sees merit in the arguments put forward by Drs. Ward and Cook, and others, that the advertising industry's loss might be democracy's gain. The Committee's view accords with the view of some observers in the United States who contend that political advertising "at best lacks substance and at worst obscures and distorts crucial issues" [60] . Indeed, the Senate Committee was warned of the dangers of following the American example [61] . The advertising techniques adopted in the United States are familiar to Australian television audiences. They include the promotion of stylized images ("more powerful than words and words cannot rebut images" [62] ), the creation of misleading non-verbal impressions, the association of candidates with something universally approved or, conversely, universally condemned, the reinforcing of viewers' prejudices, fears and uncertainties and the repetition of catchwords until they attain truth by familiarity. 1. Senate Report, p. 28, par. 4.6.5. 2. ibid., p. 34 par. 4.11.7. 3. Moran, Format Restrictions on Televised Political Advertising: Elevating Political Debate Without Suppressing Free Speech Indiana Law Journal, vol. 67 (1992) 663. 4. Senate Report, p. 17, par. 3.6.5. 5. Moran, op. cit., at pp. 668-669.

[188]

the Commonwealth will not in the exercise of its powers discriminate against or "single out" the States so as to impose some special burden or disability upon them, unless the nature of a specific power otherwise indicates, and will not inhibit or impair the continued existence of the States or their capacity to function. [69] Although the laws of the Commonwealth can validly facilitate the functioning of the States - for example, by providing for communication facilities or facilities for the interstate execution of State process - a law which purports to control, for good or ill, political discussion relating to State elections purports to burden the functioning of the States with the constraints it imposes. The functions of a State include both the machinery which leads to the exercise of the State's powers and privileges and the machinery by which those powers and privileges are exercised. Some functions are performed by the electors, some by officials of the State. Among the functions of the State I would include the discussion of political matters by electors, the formation of political judgments and the casting of votes for the election of a parliament or local authority. Laws which affect the freedom of political discussion in matters relating to the government of a State, whether by enhancement or restriction of the freedom, are laws which burden the functioning of the political branches of the government of the State with statutory constraints and restrictions. Section 95D(3) and (4) is such a law. Section 95D is expressed to apply during election periods in relation to elections to State Parliaments and local authorities, and to the broadcasting of advertisements containing "political matter", which is defined in terms that limit, or very nearly limit, the restrictions imposed by that section to the broadcasting of advertisements relating to State political matter. Although s. 95D(3) and (4) is a law with respect to broadcasting, it is offensive to the implication which protects the functioning of the States from the burden of control by Commonwealth law. It is invalid on that account. 1. ibid., at p. 82. 2. Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation (1982), 152 C.L.R. 25, at p. 93, per Mason J.

[193]

The emphasis in s. 51(xxxi) is not on a "taking" of private property but on the acquisition of property for purposes of the Commonwealth. To bring the constitutional provision into play it is not enough that legislation adversely affects or terminates a pre-existing right that an owner enjoys in relation to his property; there must be an acquisition whereby the Commonwealth or another acquires an interest in property, however slight or insubstantial it may be. In Reg. v. Toohey; Ex parte Meneling Station Pty. Ltd. [3] , Mason J. cited with approval the definition of property given by Lord Wilberforce in National Provincial Bank Ltd. v. Ainsworth [4] : Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability. His Honour added [5] : Assignability is not in all circumstances an essential characteristic of a right of property. By statute some forms of property are expressed to be inalienable. Nonetheless, it is generally correct to say, as Lord Wilberforce said, that a proprietary right must be "capable in its nature of assumption by third parties". Although property is generally assignable, that is not universally so for, as Isaacs J. said in Commissioner of Stamp Duties (N.S.W.) v. Yeend, "[a]ssignability is a consequence, not a test" of a proprietary right [6] . Assignability may therefore be denied to what is, by other tests, properly found to be property. Nonetheless, the want of assignability of a right is a factor tending against the characterization of a right as property. Part IIID creates no assignable rights. Under Div. 3 of Pt IIID, broadcasters are statutorily bound to provide free broadcasting time to the political parties and other groups and persons to whom free time units are allocated. It is immaterial to the validity of Pt IIID that broadcasters are denied the right to broadcast what they wish during free time, or that broadcasters must use their property to provide election broadcasts during free time, for neither of these effects creates, extinguishes or transfers property. It is immaterial that Pt IIID reduces the value of a broadcaster's licence [7] for the beneficiaries of the free time provisions acquire none of the rights or privileges conferred by a broadcaster's licence. The beneficiaries acquire a statutory right to have their election broadcasts transmitted free of charge. That is a right to the services of the broadcaster; it is not a proprietary right. As neither the Commonwealth nor the beneficiaries acquire rights that are "property" within the meaning of the term in s. 51(xxxi), the challenge to the free time provisions on the ground that they effect an acquisition of property otherwise than on just terms fails. 1. (1983) 158 C.L.R., at p. 247. 2. ibid., at p. 145. 3. (1982) 158 C.L.R. 327, at p. 342. 4. [1965] A.C. 1175, at pp. 1247-1248. 5. (1982) 158 C.L.R., at pp. 342-343. 6. (1929) 43 C.L.R. 235, at p. 245. 7. which is a form of property: Television Corporation Ltd. v. The Commonwealth (1963), 109 C.L.R. 59, at p. 70; 2 Day FM Australia Pty. Ltd. v. Commissioner of Stamp Duties (N.S.W.) (1989), 89 A.T.C. 4840, at pp. 4, 844-4, 845; 20 A.T.R. 1131, at pp. 1135-1136. See also Banks v. Transport Regulation Board (Vict.) (1968), 119 C.L.R. 222, at pp. 230-232.

[205]

There is nothing in the words or content of any of the provisions conferring legislative power upon which the Commonwealth relies which manifests an intention to derogate from, or to authorize the making of laws derogating from, the Constitution's implication of freedom of political communication. That being so, those provisions must be construed as confined by that implication. It was submitted on behalf of the Commonwealth that no valid objection could be taken to a prohibition of political advertisements on television and radio since a general prohibition of all advertisements on television and radio would be within Commonwealth legislative power. Even if it be assumed that that would be so, however, the assumption says no more to the question of the consistency of the provisions of Pt IIID with the Constitution's implication of freedom of political communication than would an assumption that a State Parliament had legislative power to ban all newspaper advertising within the State say to the question whether a specific and protectionist ban on any newspaper advertising by out-of-State traders was consistent with s. 92's guarantee of freedom of interstate trade and commerce. The ban on political communication through the medium of advertising on television or radio must be assessed in the context in which it operates, namely, a context where advertising in general is permitted on commercial radio and television stations. It is in that context that the ban must be seen as a legislative prohibition not of advertising as such but of political communication to and by the people of the Commonwealth through two of the methods by which such communications could otherwise be lawfully made. It follows from what was said in our judgment in Nationwide News [17] that the legislative provisions imposing the prohibitions infringe the Constitution's implication of freedom of communication and are beyond the scope of the relevant grants of legislative power unless they are justified in the public interest in the limited sense which we have explained above. We turn to a consideration of the question whether they are so justified.

[212]

It is true that the prohibitions of Pt IIID apply only in respect of television and radio and only during an "election period" in relation to an election to which Pt IIID applies. Nonetheless, the interference with the freedom of political communication of the people of the Commonwealth is a very substantial one. The material before the Court indicates that political communication by television advertising is seen by many, and possibly all, persons experienced in political matters as the most effective, if not the most informative or intelligent, means of political communication during an election period [2] . Material placed before the Court by the plaintiff State of New South Wales illustrates that, in a closely settled metropolitan area such as Sydney, the periods in which freedom of political communication would be affected by the provisions of Pt IIID would be likely to be very frequent indeed. In any event, the period preceding an election is obviously the time at which political communications by persons who are not candidates or political parties are likely to be most important and effective. It is also true that the provisions of Pt IIID are only applicable in relation to an election to the Parliament of the Commonwealth or a State or the legislature of a Territory if regulations in respect of the grant of free time have been made with respect to that election (s. 95J). For the purposes of examining the validity of the legislation, however, it must be assumed that the power to make such regulations will be exercised and that the regulations, once made, will not be disallowed. In any event, the fact that the Commonwealth government is effectively empowered, by making or declining to make regulations, to determine on an ad hoc basis whether the prohibitions imposed by Pt IIID are not or (subject to disallowance) are applicable to a particular Commonwealth, State or Territory election scarcely serves to make the relevant legislative provisions more compatible with the standard of a democratic society.

[215]

It was not submitted that the prohibitions imposed by Pt IIID could be justified on the ground that they were conducive to the overall availability of the effective means of political communication in a democratic society. In a context where, subject to the abovementioned limited exceptions and qualifications, Pt IIID effectively excludes everyone during an "election period" from political communication through the medium of commercial radio and everyone except political parties and candidates from political communication through the medium of television, it is not surprising that no such submission was made. As we followed the argument, the main basis on which it was sought to justify the prohibitions and restrictions was that they reduced the pressures for massive spending by political parties and thereby reduced the incentives for corruption among those involved in political processes. The elimination of corruption in the political processes is, of course, of great importance in the public interest. The argument that to achieve the postulated objectives it is necessary effectively to exclude the people of the Commonwealth, including legitimate special interest groups, from political communication on the electronic media during an election period unless they be political parties or candidates seems to us, however, quite unconvincing. Nor, in our view, is it to the point to say that the cost of time, at least on television, is so high that private individuals would not seek to communicate by political advertisement on that medium in any event. For one thing, the cost of radio time, especially country radio, is not nearly so high. For another, individuals may legitimately come together, in employee, industry or other special interest groups, to procure political communication by way of advertisement on television and radio. In any event, the fact that the number of groups or individuals who might wish to express their political views in a particular way is limited, does not suffice to justify a law suppressing the freedom of communication in that particular way. There is, perhaps, greater force in an argument that the high cost of television and radio advertisements is such that the prohibition of political advertisements is necessary to create a "level playing field" or to ensure some balance in the presentation of different points of view. That argument may support some form of control of spending on, or some degree of regulation of the use of, political communication. It may, for example, arguably support a total blackout of political advertisements in or on the media on election day. It does not, however, suffice to establish the justification of what is, from the point of view of those excluded from the free time system, an effective ban on political communication through two of the most effective means of such communication during the times when such communication is likely to be most significant and effective. In that regard, it must be remembered that a prohibition is no less antagonistic to and inconsistent with the freedom of political communication which is implicit in the Constitution's doctrine of representative government simply because the Parliament or those in government genuinely apprehend that some persons or groups may make more, or the more effective, use of the freedom than others involved in political processes.

[232]

It is convenient to turn first to those guarantees which are said to arise by implication. Whenever the question of implication is raised in relation to the Constitution it is as well to bear in mind the nature of the instrument and the source from which it derives its authority. The Constitution is contained in an Act of the Imperial Parliament: the Commonwealth of Australia Constitution Act (63 & 64 Vict. c. 12). Notwithstanding that this Act was preceded by the agreement of the people of New South Wales, Victoria, South Australia, Queensland and Tasmania "to unite in one indissoluble Federal Commonwealth", the legal foundation of the Constitution is the Act itself which was passed and came into force in accordance with antecedent law. And the Constitution is itself a law declared by the Imperial Parliament to be "binding on the courts, judges, and people of every State and of every part of the Commonwealth" [4] . It does not purport to obtain its force from any power residing in the people to constitute a government, nor does it involve any notion of the delegation of power by the people such as forms part of American constitutional doctrine. The words in the United States Constitution "We the People of the United States do ordain and establish this Constitution for the United States of America" find no counterpart in the Australian Constitution; indeed, such words would entirely belie the manner of its foundation. No doubt it may be said as an abstract proposition of political theory that the Constitution ultimately depends for its continuing validity upon the acceptance of the people, but the same may be said of any form of government which is not arbitrary. The legal foundation of the Australian Constitution is an exercise of sovereign power by the Imperial Parliament. The significance of this in the interpretation of the Constitution is that the Constitution is to be construed as a law passed pursuant to the legislative power to do so. If implications are to be drawn, they must appear from the terms of the instrument itself and not from extrinsic circumstances. Thus in Queensland Electricity Commission v. The Commonwealth Brennan J. observed [5] :

[296]

In my view, the sections which are attacked by the plaintiff in the second action do not have this discriminatory effect. The prohibition on broadcasts of political advertisements during an election period applies generally and not only to broadcasts for or on behalf of the government, or a government authority, of a State. Indeed, ss. 95B(4), 95C(5) and 95D(4) expressly prohibit broadcasts of political advertisements for or on behalf of a person other than a government or government authority and broadcasts of political advertisements on the broadcaster's own behalf. The exception to this latter prohibition on broadcasting is where a broadcast is an election broadcast that is made on behalf of an organization or person who is granted a period of free time pursuant to the provisions of Div. 3 or a policy launch that is broadcast pursuant to the provisions of Div. 4. The only organizations or persons who can be granted a period of free time pursuant to the provisions of Div. 3 are political parties and candidates, or groups of candidates, in the relevant election [68] . And the only policy launches that may be broadcast pursuant to the provisions of Div. 4 are the policy launches of political parties that meet certain criteria [69] . The States are not singled out by the prohibition which is imposed on the broadcast of political advertisements because the prohibition extends to organizations or bodies that are not political parties or candidates, or groups of candidates, in an election that meet the conditions specified in Divs 3 and 4. And the definition of "political advertisement" is not such as to confine the prohibition to advertisements that might be expected to be broadcast for or on behalf of a State as opposed to advertisements that might be expected to be broadcast for or on behalf of other persons or bodies that have an interest in influencing voters or in commenting upon issues in an election. Moreover, a prohibition similar to that imposed in relation to the broadcast of political advertisements for or on behalf of a government, or government authority, of a State is also imposed in relation to the broadcast of political advertisements for or on behalf of a government, or government authority, of a Territory or for or on behalf of the government, or a government authority, of the Commonwealth [70] . Of course, the very nature of the States is such that they cannot be political parties or candidates in an election and this explains why ss. 95B(3), 95C(4) and 95D(3) are not expressed to be "[s]ubject to Divisions 3 and 4" whereas ss. 95B(4), 95C(5) and 95D(4) are so expressed.

[354]

People cannot adequately influence the decisions which affect their lives unless they can be adequately informed on facts and arguments relevant to the decisions. Much of such fact-finding and argumentation necessarily has to be conducted vicariously, the public press being a principal instrument. His Lordship was speaking generally, but what he said is especially true in relation to elections held to determine the composition of the parliaments and the legislatures and, ultimately, the government of the political entity concerned. The cruciality of discussion in relation to elections was made plain by Windeyer J. in Australian Consolidated Press Ltd. v. Uren [4] , his Honour stating that "[f]reedom at election time to praise the merits and policies of some candidates and to dispute and decry those of others is an essential of parliamentary democracy." 1. Blackstone, Commentaries, 17th ed (1830), vol. iv., chapter xi: Of Offences against the Public Peace, p. 151. 2. See, e.g., The Commonwealth v. John Fairfax & Sons Ltd. (1980), 147 C.L.R. 39, at p. 52, per Mason J.; John Fairfax & Sons Ltd. v. Cojuangco (1988), 165 C.L.R. 346, at p. 353, per Mason C.J., Wilson, Deane, Toohey and Gaudron JJ.; Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation (1982), 152 C.L.R. 25, at p. 56, per Gibbs C.J.; pp. 74-75, 76-77, per Stephen J.; pp. 95, 98, per Mason J.; pp. 133-134, per Wilson J.; p. 175, per Brennan J.; Hinch v. Attorney-General (Vict.) (1987), 164 C.L.R. 15, at pp. 18-19, per Mason C.J.; p. 41, per Wilson J.; pp. 46, 57, per Deane J.; pp. 82-83, 85, per Gaudron J. 3. See, e.g., Wheeler v. Leicester City Council, [1985] A.C. 1054, at p. 1065, per Browne-Wilkinson L.J.; Derbyshire County Council v. Times Newspapers Ltd., [1992] 1 Q.B. 770, at p. 814-815, per Balcombe L.J.; p. 831-832, per Butler-Sloss L.J.; Retail, Wholesale & Department Store Union Local 580 v. Dolphin Delivery Ltd. (1986), 33 D.L.R. (4th) 174, at p. 183, per McIntyre J.; First National Bank of Boston v. Bellotti (1978), 435 U.S. 765, at pp. 776-777. For decisions of courts exercising international jurisdiction see, e.g., The Sunday Times v. United Kingdom, [1979] 2 E.H.R.R. 245, at p. 280; The Observer and the Guardian v. United Kingdom (1992), 14 E.H.R.R. 153, at p. 178. 4. [1974] A.C. 273, at p. 315. 5. (1966) 117 C.L.R. 185, at p. 210. See also Ansett Transport Industries (Operations) Pty. Ltd. v. The Commonwealth (1977), 139 C.L.R. 54, at p. 88, per Murphy J.; First National Bank of Boston v. Bellotti (1978), 435 U.S., at p. 777; National Citizens' Coalition Inc. v. Attorney-General (Canada) (1984), 11 D.L.R. (4th) 481, at p. 492.

At a glance

Court

Decision date

Before

Source

Judgment (500 paragraphs)

Parties

Legislation Cited (5)