Australian Capital Television Pty Ltd V Commonwealth - Background To The Case

Background To The Case

In 1991, the Government of Australia ("the Commonwealth") under Prime Minister Bob Hawke passed the Political Broadcasts and Political Disclosures Act 1991, which inserted part IIID into the Broadcasting Act 1942. The changes had a number of effects, the most important of which prohibited the broadcasting of politically related material on electronic media such as radio and television during the period leading up to a State or Federal election (except in news, current affairs or talkback programs). The laws also obliged broadcasters to provide "free time" to political parties to air advertisements. Kim Beazley, then the Minister for Transport and Communications, said that the changes were designed to limit corruption, and prevent donors to political parties from exerting undue influence, by restricting the amount of political advertising that could be broadcast. He said that due to the practical cost of advertising, it was only the major parties and very wealthy individuals who could afford to broadcast advertisements. The Government said they had wanted to avoid a situation such as that in the United States, where it is virtually impossible for anyone but the very rich to participate in the political process.

With some exceptions, the laws prohibited broadcasters from broadcasting matter for or on behalf of the government or government agencies, and from broadcasting political advertisements ("matter intended or likely to affect voting in the election", or matter explicitly referring to the election) on behalf of themselves or other individuals during an election period. The "free time" would be divided between the parties based on the amount of representation they had in the Parliament, with only five percent available to other groups, who had to apply for an allocation of free time.

The eight plaintiffs in the case were commercial television broadcasters who held broadcasting licences under the Broadcasting Act. They asked the High Court to declare that Part IIID of the act was invalid. In a related action which was heard at the same time, the Government of New South Wales also challenged the laws, particularly their application to by-elections. The Government of South Australia intervened in the case in support of the Commonwealth.