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Political advertising Email received 4 June 2008, in response to this post. Hi
Peter I
may be able to provide part of the answer to the question you raise on the
Mumble website regarding limiting TV advertising. Although I am a lawyer, I am
by no means an expert on constitutional or media law. In
any event, the later High Court case of Lange v ABC somewhat curtailed the
result in ACT-TV. In particular the combined court (engaging in a rare joint
decision) said that (cut and paste from Austlii): the
freedom of communication which the Constitution protects is not absolute. It
is limited to what is necessary for the effective operation of that system of
representative and responsible government provided for by the Constitution.
The freedom of communication required by ss 7 and 24 [of the Constitution] and
reinforced by the sections concerning responsible government and the amendment
of the Constitution operates as a restriction on legislative power. However,
the freedom will not invalidate a law enacted to satisfy some other legitimate
end if the law satisfies two conditions. The first condition is that the
object of the law is compatible with the maintenance of the constitutionally
prescribed system of representative and responsible government or the
procedure for submitting a proposed amendment to the Constitution to the
informed decision of the people which the Constitution prescribes. The second
is that the law is reasonably appropriate and adapted to achieving that
legitimate object or end. In
short, if the Commonwealth feels the need to legislate for some legitimate end
(such as limiting the need for political parties to obtain huge donations to
fund expensive electronic advertising campaigns), then provided the
legislation is “appropriate and adapted” to that end, then it is not
unconstitutional. Obviously,
they could amend the Electoral Act, to limit advertising by political parties.
Another
manner of doing this may be under the “postal, telegraphic... and like
services ” power, under which the Commonwealth has been held to have power
to legislate for TV and radio. Licence conditions could be imposed limiting
the amount of political advertising that could be broadcast by any licensee. In
short, I think an outright ban would be clearly unconstitutional. However,
given the free advertising that networks must already make available during
election campaigns, there may well be a reasonable argument that such
advertising time and space is sufficient. Two
issues with this approach are how you address the legitimate needs of minor
parties, and how you deal with interested parties who may not be registered
political parties. A
further issue is that the Commonwealth has much more limited power to regulate
newspapers and the internet (to the extent that websites can easily be set up
outside See
also: http://en.wikipedia.org/wiki/Lange_v_Australian_Broadcasting_Corporation http://www.austlii.edu.au/au/cases/cth/HCA/1997/25.html Kind
regards Joshua
Saunders |
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