## Facts

- Commercial television broadcasters licensed under federal broadcasting legislation challenged amendments creating a federal regime for political broadcasting during election periods.
- The challenged provisions broadly prohibited the broadcast of “political advertisements” during election periods, subject to limited exceptions (including news, current affairs, and talkback).
- The scheme required broadcasters to provide “free time” for election broadcasts, allocated by the Australian Broadcasting Tribunal under statutory criteria and a review mechanism.
- Allocation of free time largely depended on prior electoral performance, with the bulk reserved for established political parties and limited time for other groups.
- Proceedings were brought in the High Court’s original jurisdiction; the Commonwealth demurred, requiring determination of constitutional validity on the pleadings.

## Issues

1. Whether the Constitution implies a freedom of communication on political and governmental matters as an incident of representative and responsible government.
2. Whether prohibiting paid political advertising on radio and television during election periods, while substituting a tribunal-allocated free-time scheme, impermissibly burdens that implied freedom and is therefore invalid.

## Decision

- A majority held that the Constitution implies a freedom of political communication derived from the system of representative and responsible government.
- A majority held the challenged provisions invalid because they burdened political communication in a manner incompatible with that constitutional system.
- The Court characterized the regime as a near-blanket prohibition on paid political advertising during the period when electoral communication is most important.
- The Court held that the free-time allocation scheme entrenched advantages for established parties and materially restricted access by minor parties, independents, and new entrants.
- Dissents varied: one justice rejected any implied freedom, while others accepted constitutional implications but would have upheld the legislative scheme as a permissible regulation.

## Legal Principles

- The constitutional system of representative and responsible government implies a freedom to communicate on political and governmental matters necessary for informed electoral choice.
- The implied freedom is not a personal right; it operates as a limitation on legislative and executive power.
- A law is invalid if it burdens political communication in a way that is incompatible with maintenance of the constitutionally prescribed system of government.
- Broad prohibitions on core election-period political communication, combined with state-controlled allocation of access to major broadcast media, can be incompatible with the implied freedom, particularly where the scheme discriminates in practical effect between political actors.

## Conclusion

The High Court recognized an implied constitutional freedom of political communication and invalidated federal provisions that largely banned paid election-period political advertising and replaced it with a tribunal-allocated free-time scheme that substantially restricted and skewed access to broadcast political communication.


Australian Cap. Television Pty Ltd v. Commonwealth, 177 C.L.R. 106 (High Ct. Austl. 1992)