On a cold winter evening in July 1987, Bob Hawke claimed victory in the federal election. It was a historic win, returning the Australian Labor Party to power for an unprecedented third term.
It had been a close race and Hawke was worried Australian political discourse was heading down the path of the United States where, on one view, political influence and electoral outcomes were heavily dependent on the fundraising capabilities of the parties and candidates. The issue was discussed by the Joint Standing Committee on Electoral Matters in its report, Who pays the piper calls the tune, which reviewed the conduct of the 1987 federal election. The report found that corruption had the potential to enter federal politics as a result of the high cost of political campaigns, especially the costs associated with television advertising. The amount spent on television advertisements in the 1987 election campaign was approximately 100% more than the amount spent in the 1983 election. The report concluded that the democratic process had become increasingly dependent on raising the substantial funds needed to buy advertising on electronic media.
To address these concerns, the Government introduced a new Part IIID into the Broadcasting Act 1942 (Cth) to prohibit political advertisements on radio and television during election campaigns while also requiring broadcasters to make 'free time' available for election programs.
In addition to restricting political advertising during election campaigns, the Government's intention was to increase transparency around political donations. The television networks, keen to protect their advertising revenue and to resist what they saw as an undue restriction on the political process, appointed Allen Allen & Hemsley to assist them in opposing the legislation.
Australian Capital Television Pty Ltd and seven other commercial television licensees challenged the validity of Part IIID of Broadcasting Act 1942 in the High Court of Australia. They argued that the Constitution contained implied rights (freedom of participation, association and communication) that were necessary to enable voters to make informed choices about candidates offering themselves for election, and that the changes to the Broadcasting Act would reduce the effectiveness of Australia’s democratic political system.
On 30 September 1992 the Court handed down its landmark decision, finding that the legislation was invalid on the basis that it contravened the implied constitutional guarantee of freedom of communication about political matters. This was one of the first in a series of cases in which the High Court recognised this implied guarantee in the Australian Constitution.
Partner Ian McGill, who led the challenge for Allens, said that from the start the legal team (including Sir Maurice Byers QC and Stephen Gageler (as he then was, and now a justice of the High Court of Australia)) knew this would be a groundbreaking matter: 'Our constitution was not framed to include comprehensive guarantees of individual rights, unlike the Constitution of the United States where individual rights are explicitly outlined. However, the High Court accepted in Australian Capital Television Pty Ltd v Commonwealth, and it is now well established, that implied rights of political communication arise from the structure and terms of our Constitution and go to the heart of our democracy – the right for Australians to exercise their free vote and listen to what people have to say, unimpeded by the Government'.
'...the right for Australians to exercise their free vote and listen to what people have to say, unimpeded by the Government'
- Partner Ian McGill