Do not go gently into that good right: The first amendment in the high court of Australia

Supreme Court Review

Volumn 1997, Issue 1, 1997, Pages 439-495

  Rosenberg, Gerald N ^a   Williams, John M ^a  

^a NONE

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EID: 0041543521     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/scr.1997.3109748     Document Type: Article

References (258)

1. Eric Barendt, Free Speech in Australia: A Comparative Perspective, in Symposium: Constitutional Rights for Australia? 16 Sydney L R 149 (1994).
2. See, generally, Linda Lee Kaid and Christinia Holtz-Bacha, eds, Political Advertising in Western Democracies: Parties & Candidates on Television (Sage, 1995); Herbert E. Alexander and Rei Shiratori, eds, Comparative Political Finance Among the Democracies (Westview, 1994).
3. See, generally, Linda Lee Kaid and Christinia Holtz-Bacha, eds, Political Advertising in Western Democracies: Parties & Candidates on Television (Sage, 1995); Herbert E. Alexander and Rei Shiratori, eds, Comparative Political Finance Among the Democracies (Westview, 1994).
4. See pages 465-71.
5. Remarks by the President in Address to the Conference on Free TV and Political Reform, The National Press Club, Washington, DC (March 11, 1997), p 6. See also James Bennet, Clinton Suggests Licensing Deal for Free TV Time in Campaigns, New York Times, national ed (March 12, 1997), p 1.
6. 177 C.L.R. 106 (1992). A companion case was Nationwide News Pty. Ltd. v Wills (1992) 177 C.L.R. 1.
7. The implied right to political communications was further developed in Theophanous v Herald & Weekly Times (1994) 182 C.L.R. 104, finding a qualified immunity against prosecution under defamation laws; and in Stephens v Western Australian Newspapers Ltd. (1994) 182 C.L.R. 221, extending the implied right to public discussion of the performance and conduct of members of State legislatures. The scope of the protection has been further considered in Lange v Australian Broadcasting Corporation (1997) 145 A.L.R. 96, which reaffirmed the implied right but emphasized the relationship between the Constitution and the common law in determining the validity of a defense to a defamation action; and Levy v Victoria (1997) 146 A.L.R. 248, upholding hunting season regulations as appropriate and adapted to the protection of the implied political free speech guarantee. The impled right was limited in McGinty v Western Australia (1996) 186 C.L.R. 140, holding that democracy and the right of free speech implied by it does not require one person, one vote, and Langer v The Commonwealth (1996) 186 C.L.R. 302, upholding a Commonwealth law prohibiting the encouraging of voters to fill in a ballot paper otherwise than in the legally prescribed manner and imposing a penalty of imprisonment for six months for violations.
8. The High Court's decisions in ACTV, Theophanous, and Stephens created a good deal of controversy. For some, these decisions represent a newfound activism by the High Court that is an unwarranted and illegitimate incursion into the democratic realm of the Parliament. See T. D. Campbell, Democracy, Human Rights, and Positive Law, in (1994) Sydney L R 16 (2) 195. Others have praised the Court's decisions and welcomed them as the first steps in "righting" the Australian Constitution. P. Bailey, "Righting" the Constitution without a Bill of Rights, in (1995) 23 (1) FL Rev 1 at 2. From a U.S. perspective, Anthony Lewis has argued that the decisions indicate the Warren Court's "radiating influence in the world," and concluded that decisions like Theophanous are "an important further step in the internationalizing of the law of freedom." Anthony Lewis, Abroad at Home: A Widening Freedom, New York Times (Oct 21, 1994), p 31.
9. The High Court's decisions in ACTV, Theophanous, and Stephens created a good deal of controversy. For some, these decisions represent a newfound activism by the High Court that is an unwarranted and illegitimate incursion into the democratic realm of the Parliament. See T. D. Campbell, Democracy, Human Rights, and Positive Law, in (1994) Sydney L R 16 (2) 195. Others have praised the Court's decisions and welcomed them as the first steps in "righting" the Australian Constitution. P. Bailey, "Righting" the Constitution without a Bill of Rights, in (1995) 23 (1) FL Rev 1 at 2. From a U.S. perspective, Anthony Lewis has argued that the decisions indicate the Warren Court's "radiating influence in the world," and concluded that decisions like Theophanous are "an important further step in the internationalizing of the law of freedom." Anthony Lewis, Abroad at Home: A Widening Freedom, New York Times (Oct 21, 1994), p 31.
10. The High Court's decisions in ACTV, Theophanous, and Stephens created a good deal of controversy. For some, these decisions represent a newfound activism by the High Court that is an unwarranted and illegitimate incursion into the democratic realm of the Parliament. See T. D. Campbell, Democracy, Human Rights, and Positive Law, in (1994) Sydney L R 16 (2) 195. Others have praised the Court's decisions and welcomed them as the first steps in "righting" the Australian Constitution. P. Bailey, "Righting" the Constitution without a Bill of Rights, in (1995) 23 (1) FL Rev 1 at 2. From a U.S. perspective, Anthony Lewis has argued that the decisions indicate the Warren Court's "radiating influence in the world," and concluded that decisions like Theophanous are "an important further step in the internationalizing of the law of freedom." Anthony Lewis, Abroad at Home: A Widening Freedom, New York Times (Oct 21, 1994), p 31.
11. In particular, Buckley v Valeo, 424 US 1 (1976) (invalidating that part of the Federal Election Campaign Act of 1971 that limited campaign expenditures); National Bank of Boston v Bellotti, 435 US 765 (1978) (invalidating state law prohibiting corporations from spending money to influence the vote on any issue not materially affecting the corporation).
12. Interestingly, in neither Chapter III of the Australian Constitution (on the judiciary) nor in Article III of the U.S. Constitution is the power of judicial review expressly granted. However, the Australian High Court has taken the view that "in our system the principle of Marbury v. Madison is accepted as axiomatic." Australian Communist Party v The Commonwealth (1951) 83 C.L.R. 1 at 262 per Fullagar J. For a discussion of the origins and the politics of judicial review in Australia, see B. Galligan, Politics of the High Court (1987).
13. A number of guarantees based on the U.S. Bill of Rights did find their way into the Australian Constitution, although the High Court has generally read them narrowly. They are §§ 41 (right to vote), 51(xxxi) (acquisition of property by the Commonwealth shall be on "just terms"), 80 (trial by jury), 116 (freedom of religion), and 117 (prohibition against discrimination of residents of another state).
14. See Sir Anthony Mason, The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience (1986) 16 FL Rev 1 at 6-8; L. F. Crisp, Australian National Government 75-78 (Longman Cheshire, 5th ed 1983).
15. See Sir Anthony Mason, The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience (1986) 16 FL Rev 1 at 6-8; L. F. Crisp, Australian National Government 75-78 (Longman Cheshire, 5th ed 1983).
16. Acts of the Federal Parliament are formally referred to as Commonwealth Acts and are abbreviated "Cth."
17. The Act introduced a new Part IIID into the Broadcasting Act 1942 (Cth). The Act also amended certain other Acts, including the Broadcasting Act 1942, the Commonwealth Electoral Act 1918, the Radiocommunications Act 1983, the Referendum (Machinery Provisions) Act 1984, and the Income Tax Assessment Act 1936.
18. The ban covered what was described as "political matter" (§ 95B(6)) or "prescribed material" (§ 95B(6)). However, the Act made clear that the prohibition did not apply to the broadcasting of news, current affairs, or comment (§ 95A(1)(a)) talkback radio (§ 95A(1)(b)), and some material for the visually handicapped (§ 95A(2)), charities (§ 95A(3)), and public health (§ 95A(4)).
19. Section 95S. A policy launch was defined by § 5 of the Act as "a single spoken or written statement of all or any of the party's policies. . . ."
20. Section 95S(5).
21. Section 95S(4).
22. Section 95H(2).
23. Section 95H(1)(a)-(b).
24. Section 95H(3). Australian voters list candidates in order of preference, ranking them from 1 to N (where N is the number of candidates).
25. Section 95L.
26. Section 95M(1)-(2).
27. Section 95G(a) described the image to consist of "the head and shoulders of the speaker."
28. Section 95G(b).
29. Section 95G(a).
30. Section 95G(f)(i).
31. Section 95G(f)(ii).
32. Some critics of the Act charged that the "real" aim of the bill was "to reduce the cost of the next federal election campaign to a Labor Party which is financially embarrassed." (Dissenting Report - Senators John Olsen & Rod Kemp, in The Political Broadcasts and Political Disclosures Bill 1991, Report by the Senate Select Committee on Political Broadcasts and Political Disclosures (Canberra: Australia Government Publishing Service, 1993) at 78 (hereafter "Senate Report")). Without taking a position on the truth of this claim, we do show that the effect of the Act would have been to lessen the overall percentage of television campaign advertising on behalf of the Labor Party.
33. In addition to the Senate Report, see, for example, Who Pays the Piper Calls the Tune - Minimising the Risks of Funding Political Campaigns: Inquiry into the Conduct of the 1987 Federal Election and 1988 Referendums, Rep No 4, Joint Standing Committee on Electoral Matters, Parliament of the Commonwealth of Australia, June 1989; Commission of Inquiry Into Possible Illegal Activities and Associated Police Misconduct (Brisbane: Hampson, Government Printer, 1989) (The "Fitzgerald Report" - Queensland); Independent Commission Against Corruption, Report on Investigation into North Coast Land Development (Sydney: The Commission, 1990) (New South Wales); Report of the Royal Commission Into an Attempt to Bribe a Member of the House of Assembly, and other Matters (Hobart: Government Printer, 1991) (finding an attempted bribery of a member of the Tasmanian Parliament).
34. Senate Report at 5.
35. Mr. K. Beazley, Second Reading Speech, H Rep 3478 (May 9, 1991).
36. Senator N. Bolkus, Second Reading Speech, Senate 61 (August 13, 1991).
37. Senate Report at 34.
38. Id at 34.
39. Dissenting Report - Senator Cheryl Kernot, in Senate Report at 87.
40. Other grounds for the challenge were that the Act prevented trade between the states in contravention of § 92 of the Constitution, and that the Act was a compulsory acquisition of property without just term within the meaning of § 51(xxxi). The Act was also challenged by the State of New South Wales on the basis that it impeded the State's capacity to function by interfering with its legislative and executive powers. New South Wales argued that §§ 95D (3) and (4) were invalid as they impeded the capacity of the State to function as a State.
41. McHugh J at 241. However, he found the law valid in application to the Australian Territories (McHugh J at 246).
42. Brennan J at 164.
43. The Justices also took note of judicial approaches to freedom of communication in other countries, particularly Canada and Great Britain, although considerably less frequently. It is important to note, too, that "paid political advertising is not permitted during election times in the United Kingdom. . . ." Brennan J at 154.
44. Brennan J in Nationwide News Pty. Ltd. v Wills (1992) 177 C.L.R. 1 at 46-47, quoting Stephen J in Attorney-General (Cth)(Ex rel McKinlay) v Commonwealth (1975) 135 C.L.R. at 55-56.
45. Gaudron J at 210.
46. McHugh J at 227.
47. Mason CJ at 137, citing Attorney-General (Cth)(Ex rel McKinlay) v Commenwealth (1975) 135 C.L.R. at 55-56 per Stephen J. Mason, argued that "chosen by the people" signifies "government by the people through their representative." Mason CJ at 137.
48. Toohey and Deane in Nationwide at 70.
49. Justice Dawson, too, held that the Constitution provides for the election of members of Parliament "directly chosen by the people" (Dawson J at 186-87), but declined to draw an implication of freedom of political communication from it.
50. Mason CJ at 139 n 7, citing The Court and the Constitution (1987), p 212.
51. Mason CJ at 139.
52. Smith v Daily Mail Publishing Co., 443 US 97, 106 (1979), cited in 177 C.L.R. 140, n 11.
53. 376 US 254 (1964), cited in 177 C.L.R. 140, n 11.
54. Mason Cj at 138; see also 140. Mason cited Monitor Patriot Co. v Roy, 401 US 265, 272 (1971), and Buckley v Valeo, 424 US 1, 15, (1976), for the proposition that the constitutional guarantee to political communication is at its strongest in application to political campaigns. Mason CJ at 144, n 27.
55. Mason CJ at 139.
56. Deane and Toohey JJ in Nationwide at 72.
57. Gaudron J at 210-11.
58. McHugh J at 231.
59. Brennan J in Nationwide at 48.
60. Brennan J in Nationwide News Pty. Ltd. v Wills (1992) 177 C.L.R. 1 at 47, footnotes omitted.
61. Deane and Toohey JJ in Nationwide at 72.
62. McHugh J at 226.
63. McHugh J at 231.
64. McHugh J at 321.
65. McHugh J at 232.
66. Dawson J at 186-87.
67. Dawson J at 184.
68. Dawson J at 189.
69. 177 C.L.R. 211, 212.
70. 177 C.L.R. 231, 235, 239.
71. 177 C.L.R. 159.
72. 177 C.L.R. 241.
73. These include Red Lion Broadcasting Co. v F.C.C., 395 US 367 (1969), cited by Toohey and Deane at 169, numerous citations of Crandall v Nevada, 73 US 35 (1867), and cases cited in the next section of the text.
74. While U.S. cases have traditionally been cited by the High Court, especially in its formative period (see, e.g., the citation of Marbury v Madison (note 9 above)), the apparent adoption of First Amendment jurisprudence in ACTV is both new and striking given the absence of an explicit guarantee of free speech in the Australian Constitution.
75. 177 C.L.R. 108-23.
76. 435 US 765 (1978), cited at 177 C.L.R. 111, 114, 123.
77. 424 US 1 (1976), cited at 177 C.L.R. 111.
78. 384 US 214 (1966), cited at C.L.R. 111.
79. 283 US 359 (1930), cited at C.L.R. 114.
80. 274 US 357 (1927), cited at C.L.R. 114.
81. 250 US 616 (1919), cited at C.L.R. 114.
82. For example, Crandall v Nevada, 73 US 35 (1867), cited at C.L.R. 111, 112.
83. It is possible, for example, that the Justices adopted their analysis and reasoning independently of First Amendment jurisprudence. On this reasoning, the heavy citation of U.S. cases was offered for support of a method of analysis and an outcome that were reached independently of U.S. case law.
84. See Geoffrey R. Stone, Content Regulation and the First Amendment, 25 Wm & Mary L Rev 189 (1983); Content-Neutral Restrictions, 54 U Chi L Rev 46 (1987).
85. See Geoffrey R. Stone, Content Regulation and the First Amendment, 25 Wm & Mary L Rev 189 (1983); Content-Neutral Restrictions, 54 U Chi L Rev 46 (1987).
86. Mason CJ at 143.
87. Cox Broadcasting Corp. v Cohen, 420 US 469, 491 et seq (1975), cited at 177 C.L.R. 143 n 24; Konigsberg v State Bar of California, 366 US 36, 50-51 (1961), cited at 177 C.L.R. 143 n 25; L. Tribe, American Constitutional Law (2d ed 1988) at 790-91, cited at 177 C.L.R. 143 n 25.
88. Mason CJ at 143.
89. Mason CJ at 143.
90. Monitor Patriot Co. v Roy, 401 US 265, 272; Buckley v Valeo, 424 US 1, 15 (1976), cited at 177 C.L.R. 144 n 27.
91. Mason CJ at 144.
92. Mason CJ at 145.
93. Mason CJ at 143. The Chief Justice was more open to format restrictions. Mason CJ at 143-44.
94. Mason CJ at 144.
95. Mason CJ at 129.
96. Mason CJ at 145.
97. Mason CJ at 132.
98. Under the Act, 90% of the free time automatically went to political parties with members sitting in the Parliament. See provisions at page 444.
99. Mason CJ at 132.
100. Mason CJ at 146.
101. Mason CJ at 146.
102. Mason CJ at 146.
103. Mason CJ at 146.
104. Deane and Toohey JJ at 171-72; Gaudron J at 220-21.
105. McHugh J at 240-41. McHugh never explains why this should be the case.
106. McHugh J at 236.
107. Brennan J at 164 found the law invalid as applied to State elections.
108. Dawson J at 182.
109. Dawson J at 184. Dawson's position was that the protection of free speech belonged to the people: "The right to freedom of speech exists here because there is nothing to prevent its exercise and because governments recognize that if they attempt to limit it, save in accepted areas such as defamation or sedition, they must do so at their peril." Dawson J at 182-83.
110. Dawson J at 187.
111. Dawson J at 189.
112. Brennan J at 149, citing his opinion in Nationwide News Ltd. v Wills.
113. Brennan J at 150.
114. Brennan J at 154 notes that "paid political advertising is not permitted during election times in the United Kingdom, Ireland, France, Norway, Sweden, Denmark, Austria, the Netherlands, Israel or Japan."
115. Brennan J at 154.
116. Brennan J at 154.
117. Brennan J at 159.
118. Brennan J at 159.
119. Dawson J.
120. The phrase is used by Cass Sunstein in Beyond the Republican Revival, 97 Yale L J (1988) 1539 at 1548, and Democracy and the Problem of Free Speech (1993), chap 3.
121. Mason CJ at 139.
122. Mason CJ at 138-39.
123. For discussion of this point, see text at pages 453-54. Likewise, Sunstein notes that one of the key requirements of a deliberative democracy is that it bring "alternative perspectives and additional information" to public debate. Beyond the Republican Revival, 97 Yale L J 1539, 1549 (1988).
124. Mason CJ at 139. This view of democracy has a U.S. pedigree as well. Meiklejohn, for example, offers a "town meeting" theory of free speech and democracy which stresses the importance of an informed citizenry. Democracy requires, Meiklejohn suggests, that "all facts and interests relevant to the problem shall be fully and fairly presented [so] that all the alternative lines of action can be wisely measured in relation to one another." The importance to democracy of a full range of ideas being expressed is also highlighted by Meiklejohn: "What is essential is not that everyone shall speak, but that everything worth saying shall be said. To this end . . . it may be arranged that each of the known conflicting points of view shall have, and shall be limited to, an assigned share of the time available." A. Meiklejohn, Free Speech and Its Relation to Self Government (Harper & Brothers, 1948) at 22, 25-26; reprinted in A. Meiklejohn, Political Freedom (Harper & Brothers, 1960) at 24-28.
125. Mason CJ at 139. This view of democracy has a U.S. pedigree as well. Meiklejohn, for example, offers a "town meeting" theory of free speech and democracy which stresses the importance of an informed citizenry. Democracy requires, Meiklejohn suggests, that "all facts and interests relevant to the problem shall be fully and fairly presented [so] that all the alternative lines of action can be wisely measured in relation to one another." The importance to democracy of a full range of ideas being expressed is also highlighted by Meiklejohn: "What is essential is not that everyone shall speak, but that everything worth saying shall be said. To this end . . . it may be arranged that each of the known conflicting points of view shall have, and shall be limited to, an assigned share of the time available." A. Meiklejohn, Free Speech and Its Relation to Self Government (Harper & Brothers, 1948) at 22, 25-26; reprinted in A. Meiklejohn, Political Freedom (Harper & Brothers, 1960) at 24-28.
126. We do not address the question of whether the High Court was justified in finding an implied right of political communication in the Constitution. For discussion of this point, see the sources listed in note 7.
127. The phrase the "marketplace of ideas" is not used in the decision, though the argument was put to the High Court by counsel acting for the State of New South Wales (at 114) when they cited Abrams v United States, 250 US 616 (1919).
128. See discussion in text at pages 453-54.
129. A particularly poignant example of the content-restrictive effect of this form of regulation occurred in the United States the week before Thanksgiving, 1997. An attempt was made by a group to purchase time for television advertisements on the three major U.S. networks urging Americans not to shop on the Friday following Thanksgiving, traditionally the busiest shopping day of the year. The advertisements did not appear because all three of the networks refused to sell the time.
130. For further elaboration of this argument, see C. Sunstein, Democracy and the Problem of Free Speech (1993).
131. Interestingly, six of the Justices of the High Court acknowledged in the abstract that the right to political free speech in Australia is not absolute (Mason CJ at 142, Brennan J at 150, Deane and Toohey JJ at 169, Gaudron J at 217, McHugh J at 234). And, indeed, in subsequent cases like McGinty and Langer (cited and summarized in note 6), the High Court did limit the right. But there is nothing in the decision that suggests the Court would uphold legislation regulating access to the media, and the thrust of the free-market conception that permeates the opinions argues against such a reading.
132. Mason CJ at 146; emphasis added.
133. McHugh J at 236.
134. Deane and Toohey JJ at 175.
135. It is possible that the Justices were skeptical that the legislation would enlarge the range of opinion presented on the electronic media. As a logical matter, there is no guarantee that those who received access to the media under the Act wouldn't simply present ideas similar to those ideas currently being presented. Although we consider this highly unlikely, our empirical investigation (see text at pages 475-91) will show that even if this were the case, deliberative democracy would be no worse off than under the current regulations. Further, we will show that there is good reason to believe that the range of opinion presented would be extented under the Act. Rather than stressing a logical possibility, however remote, we concentrate on the demonstrated potential of the Act and its likely consequences.
136. Also, under such a system, one might expect a market to develop for the sale of the vouchers, raising the same wealth problems as before. However, a tax credit rather than a voucher might alleviate the problem.
137. We do not mean to imply that pre-television campaign advertising was always ideally supportive of deliberative democracy. Slogan like "Tippicanoe and Tyler too," and "I like Ike," contain little of the kind of information necessary for deliberative democracy. And the Republican campaign slogan inthe 1884 presidential campaign against Grover Cleveland, alleging that he fathered an illegitimate child, was hardly a model of positive campaigning: "Ma, ma, where's your pa? Gone to the White House, ha, ha, ha!" The point of the discussion that fallows is that campaign advertising on television as practiced today is much more pervasive and harmful to deliberative democracy than other forms of campaigning.
138. There is a growing literature on televised campaign advertising. In addition to the source cited in the text, see K. Jamieson, Packaging the Presidency: A History and Criticism of Presidential Campaign Advertising (2d ed 1992); K. Jamieson, Dirty Politics: Deception, Distraction, and Democracy (1992);
139. There is a growing literature on televised campaign advertising. In addition to the source cited in the text, see K. Jamieson, Packaging the Presidency: A History and Criticism of Presidential Campaign Advertising (2d ed 1992); K. Jamieson, Dirty Politics: Deception, Distraction, and Democracy (1992);
140. M. Kern, 30-Second Politics: Political Advertising in the Eighties (1989);
141. New Perspective on Political Advertising (L. Kaid, D. Nimmo, and K. Sanders, eds, 1986);
142. D. West, Air Wars: Television Advertising in Election Campaigns, 1952-1992 (1993).
143. Quoted in Martin Mayer, Madison Avenue U.S.A.: The Inside Story of American Advertising (Bodley Head, 1958) at 287.
144. See sources cited in note 132.
145. Stephen Ansolabehere, Roy Behr, and Shanto Iyengar, The Media Game: American Politics in the Television Age (Macmillan, 1993) at 43. Media executives are well aware of this. See, for example, R. Murdoch, News Corporation: Agent of Choice & Change, Address to the National Press Club, Washington, DC (Feb 26, 1996) at 5.
146. Stephen Ansolabehere, Roy Behr, and Shanto Iyengar, The Media Game: American Politics in the Television Age (Macmillan, 1993) at 43. Media executives are well aware of this. See, for example, R. Murdoch, News Corporation: Agent of Choice & Change, Address to the National Press Club, Washington, DC (Feb 26, 1996) at 5.
147. Timothy J. Moran, Format Restrictions on Televised Political Advertising: Elevating Political Debate Without Suppressing Free Speech, 67 Ind L J 663, 668 (1992).
148. Id at 669.
149. Id at 669, 670.
150. Id at 667.
151. Id.
152. Id 664.
153. John Boiney and David L. Paletz, In Search of the Model Model: Political Science versus Political Advertising Perspectives on Voter Decision Making, in Frank Biocca, ed, Television and Political Advertising 1 (Lawrence Erlbaum, 1991) at 17, 18. Boiney and Paletz found that only 8% of issue stances were "specific."
154. John Boiney and David L. Paletz, In Search of the Model Model: Political Science versus Political Advertising Perspectives on Voter Decision Making, in Frank Biocca, ed, Television and Political Advertising 1 (Lawrence Erlbaum, 1991) at 17, 18. Boiney and Paletz found that only 8% of issue stances were "specific."
155. Richard Joslyn, Mass Media and Elections (Addison-Wesley, 1984) at 43; emphasis in original.
156. Id at 43.
157. Id at 45.
158. Quoted in Nancy Gibbs, Is Forbes for Real? Time (Feb 12, 1996), p 28.
159. Id.
160. Elizabeth Kolbert, In Campaign Ads, Forbes Is Taking on All Comers, New York Times (Feb 3, 1996), p 1.
161. The study was carried out on behalf of the Markle Presidential Election Watch, a project of the nonpartisan John and Mary Markle Foundation. It can be found on the World Wide Web at http://www.markle.org/markwatc1.html. A critical response to our argument about the Forbes candidacy might argue that he contributed to deliberative democracy by running an issue-oriented campaign, albeit on a single issue, the flat tax. The problem, however, is that Forbes was able to distort the agenda not on the strength of his ideas about the flat tax but on the size of his pocketbook. How can a debate be had when access to the media is dependent on private financial resources that are not equally distributed? Steve Forbes did not enter the deliberative democratic debate; rather, he shouted over the top of it!
162. Quoted in Edwin Diamond and Stephen Bates, The Spot: The Rise of Political Advertising on Television (MIT Press, 1984) at 373.
163. Quoted in id at 343.
164. Id at 297.
165. Stephen Ansolabehere and Shanto Iyengar, Going Negative: How Attack Ads Shrink and Polarize the Electorate (Free Press, 1995).
166. Id at 39. The effects on voters of the information, however, are not straightforward. Interestingly, Ansolabehere and Iyengar find that information provided by political advertisements serves to "influence voters in concert with long-standing partisan predispositions." That is, "[a]dvertisements induce few Republicans to vote Democratic and few Democrats to vote Republican." Further, when television stations adopted a policy of evaluating ads and criticizing them when they were misleading, "[t]he candidates whose advertisements were criticized gained support. . . ." Id at 13, 64, 139.
167. Id at 15.
168. Id at 16.
169. By their very nature, controlled experiments cannot duplicate uncontrolled life.
170. Keith Windschuttle, The Media: An Analysis of the Press, Television, Radio and Advertising in Australia (Penguin, 3d ed 1988) at 312.
171. Philip Bell, Kathe Boehringer, and Stephen Crofts, Programmed Politics: A Study of Australian Television (Sale Publishing, 1982) at 2. The focus of the study was television news, not advertising.
172. Id at 13.
173. Special Section, Politics and the Media: Election '93, 20 Australian J Comm (vol 2) 1 (1993).
174. Julie M. Duck, Michael A. Hogg, and Deborah J. Terry, Perceptions of Media Influence in the 1993 Australian Federal Election: "Others" as Vulnerable Voters, in Special Section, Politics and the Media: Election '93, 20 Australian J Comm (vol 2) 1 (1993) at 45.
175. Julie M. Duck, Michael A. Hogg, and Deborah J. Terry, Perceptions of Media Influence in the 1993 Australian Federal Election: "Others" as Vulnerable Voters, in Special Section, Politics and the Media: Election '93, 20 Australian J Comm (vol 2) 1 (1993) at 45.
176. David Sless, Politics and the Bored Spectator - A Provocation, in Special Section, Politics and the Media: Election '93, 20 Australian J Comm (vol 2) 1 (1993) at 62.
177. David Sless, Politics and the Bored Spectator - A Provocation, in Special Section, Politics and the Media: Election '93, 20 Australian J Comm (vol 2) 1 (1993) at 62.
178. Ian Ward and Ian Cook, Televised Political Advertising, Media Freedom, and Democracy, Social Alternatives (vol 11) 1 (April 1992) at 22.
179. David Rogers and Robyn Penman, Communication in the Political Arena: Whither Citizenship? Occasional Paper No 12 (Canberra: Communication Research Institute of Australia, December 1989) at 12; emphasis in original.
180. Id at 13.
181. Id at 16.
182. Ward and Cook (cited in note 164) at 23.
183. Testimony of Mr. Phillip Adams, Senate Select Committee on Political Broadcasts and Political Disclosures (Oct 23, 1991) at 333.
184. Adams' Testimony at 334.
185. Adams' Testimony at 336.
186. Adams' Testimony at 338.
187. Adams' Testimony at 338.
188. Adams' Testimony at 342.
189. Testimony of Mr. Rodney Cameron, Senate Select Committee on Political Broadcasts and Political Disclosures (Nov 10, 1991) at 281.
190. Cameron Testimony at 281, 282.
191. Cameron Testimony at 282.
192. Cameron Testimony at 283.
193. Cameron Testimony at 284.
194. Ian Ward and Ian Cook, Why Banning Televised Political Advertising Will Strengthen Australian Democracy: A Submission to the Senate Select Committee on Political Broadcasts and Political Disclosures, Senate Select Committee on Political Broadcasts and Political Disclosures, Submission No 10 (Sept 20, 1991) at 10, quoting P. Corcoran, Political Language and Rhetoric (Univ of Queensland Press, 1979), xv.
195. Ian Ward and Ian Cook, Why Banning Televised Political Advertising Will Strengthen Australian Democracy: A Submission to the Senate Select Committee on Political Broadcasts and Political Disclosures, Senate Select Committee on Political Broadcasts and Political Disclosures, Submission No 10 (Sept 20, 1991) at 10, quoting P. Corcoran, Political Language and Rhetoric (Univ of Queensland Press, 1979), xv.
196. Brennan J at 160-61.
197. Gaudron J at 208.
198. Brennan J at 158.
199. Justice Brennan did look at some data, although not in any thorough way. Not surprisingly, he upheld the constitutionality of the Act, as applied to the federal government.
200. Political Advertisements: An International Comparison, Senate Report, App 5, pp 111-23.
201. Brennan J at 154. In addition to the nine democracies listed in the Senate Report, Brennan added Ireland, which allows paid political advertising during election campaigns but restricts the amount of advertising and allocates it in proportion to representation in Parliament.
202. Brennan J at 154. The countries Brennan lists are Denmark, Ireland, Japan, The Netherlands, Norway, and Sweden.
203. Brennan J at 154-55, citing X and the Association of Z v United Kingdom, European Commission of Human Rights (July 12, 1971), p 88.
204. Brennan J at 154.
205. Donald L. Horowitz, The Courts and Social Policy (Brookings, 1977) (arguing that judges lack the expertise and training to understand such studies, and that the norms of the adversarial process do not permit judges to undertake social science research independent of the material brought to the case by the parties).
206. It may be the case that the son of empirical analysis called for above is not part of the Australian legal culture, or the legal culture of many democracies. This is not, however, a persuasive argument for eschewing it. Without such evidence, courts risk undermining rather than furthering the constitutional principles they enunciate. If courts wish to play an active policy role, they must take empirical evidence into account.
207. At the time the case was decided, § 116 (4) of the Broadcasting Act (Cth) 1942 prohibited broadcasters from broadcasting "political matter" during "the period that commences at the expiration of the Wednesday next preceding the polling day for the election and ends at the close of the poll on that polling day." This section has been replicated in the new Broadcasting Services Act (Cth) 1992.
208. Who the Piper Calls the Tune - Minimising the Risks of Funding Political Campaigns, Inquiry into the Conduct of the 1987 Federal Election and 1988 Referendums, Rep No 4, Joint Standing Committee on Electoral Matters, Parliament of the Commonwealth of Australia (Canberra: Australian Government Publishing Service, 1989) 109 This is a particularly weak argument. The only effect of the blackout is to change the timing. That is, what is there to stop a party from running negative advertisements in the days before the Wednesday after which political advertisements are banned? That would still leave insufficient time for opponents to respond.
209. Mason CJ at 129.
210. Brennan J at 159.
211. Follett Sidesteps Political Ad Ban, Canberra Times (Feb 11, 1992) at 4.
212. Wayne Crawford, Now for the Totally Novel Election, Hobart Mercury (Jan 3, 1992) at 1.
213. Id.
214. Authors' conversation with Tasmanian political activist.
215. Michael Smith, Ban on the One-Eyed Monster Pushes Pollies on to the Podium, Hobart Mercury (Jan 19, 1992) at 4.
216. Id.
217. Rod McGuirk, Jamieson's Campaign Aloft with Free Air Time, Hobart Mercury (Jan 18, 1992) at 1. Ten independent candidates applied for the ten minutes of free air time made available to candidates not affilated with registered political parties. The Tribunal decided that giving each candidate one minute of free time didn't make sense and instead held a lottery among the ten for the free time.
218. State TV Big Loser in Ads Ban Case, Hobart Mercury (Jan 16, 1992) at 3.
219. In its most recent Report, for the 1993 federal election, the AEC used the term "third party" to "denote persons, groups or organisations, other than registered political parties, candidates or Senate groups, taking part in an election campaign" (1993 Report, p 17). Its 1990 Report used a similar formulation (p 20) as did the reports on the 1987 (1987 Report, p 24) and 1984 (1984 Report, p 4) federal elections.
220. 5 Data are not presently available for the 1996 federal election.
221. It is important to note, however, that broadcasters appear to underreport the amount of money spent. In 1990, the AEC compared broadcasters' reports with those of the political parties, finding that "broadcasters' and publishers' returns disclosed about 70% of the amount disclosed by political parties, candidates and 'third parties' on broadcasting and publishing" (1990 Report, p 29). The important, point, however, is that both sets of data reveal the domination over broadcasting of the four major political parties.
222. Surveys and experiments on media effects make it clear that it takes repeated exposure for viewers to be aware of, and remember, broadcast messages. See Shanto Iyengar and Donald R. Kinder, News That Matters (Univ of Chicago Press, 1987).
223. The ACTU ($171,961.63), the ACTU Future Strategies ($164,095.00), the Fair Go Aust Alliance/Labor Council ($120,873.00), and the Hospital Benefit Fund of Western Australia Inc ($211,895.00). Together these four groups spent $668,824.63, or 57% of total spent by third parties on electronic media.
224. The NSW Teachers Federation ($83,250.00), the Public Sector Union ($58,308.00), the Trades and Labor Council of Queensland ($99,109.00), and the United Trades & Labor Council, South Australia ($89,696.00). Together these four groups spent $330,363.00, or 28.1% of the total spent by third parties on electronic media.
225. Unfortunately, similar data for the 1990, 1987, and 1984 federal elections do not exist.
226. H Rep (May 9, 1991), p 3479. The passage was also cited in the Report of the Senate Select Committee, p 5.
227. H Rep (May 9, 1991), p 3480.
228. Noise at Sydney airport was a major political issue in the several years before the 1996 federal election, with the incumbent Keating (ALP) government building a new runway and closing an old runway, allegedly for safety concerns. The Opposition charged, however, that the old runway was closed because its flight path was over seats held by Ministers in the Labor government. The flight path for the new runway was, of course, over seats held by Members of the Opposition.
229. Phone Interview with Campaign Organizer of the No Aircraft Noise Party (Feb 29, 1996). The party relied on print advertisement, handbills, public rallies, and the news coverage they generated to disseminate its policy positions.
230. Senate Report, p 24. AEC Report for 1990 elections, p 60. Other forestry industry groups reporting campaign advertising include the New South Wales Forest Products Association ($109,820) and the Tasmanian Logging Association ($15,685). AEC Report for 1990 elections, pp 61, 62.
231. AEC Report for 1990 election, p 59. Other conservation groups reporting campaign advertising include Mountain Residents for Animal Rights ($385), the Wilderness Society ($4,741), and the World League for Protection of Animals ($2,451.20). AEC Report for 1990 election, pp 61, 63.
232. Senate Report at 24. The Report does note that the ACF was running one television ad "as a community service announcement . . . shown free at the discretion of television stations [with] an estimated 300 other community organisations competing for this discretionary free time." Senate Report at 24.
233. H Rep (May 9, 1991) at 3480.
234. Brennan J at 149.
235. Deane and Toohey JJ at 175. The rest of this paragraph is critically discussed in text at pages 461-62.
236. Social Indicators, Australian Bureau of Statistics (1992) Catalogue No 4101.0 at 17.
237. Id.
238. Id.
239. It again appears that publishers underreport the amount of money spent. However, the main point is that even though the numbers differ, both sets of figures show that third parties spend a much larger percentage of campaign expenditures on publishing than on broadcasting.
240. The Australian Medical Association ($102,995.45), Australia Media Pty. Ltd. ($135,866.20), the Department of Health, Housing & Community Services ($103,836.00), the Medical Benefits Fund of Australia ($231,669.17), and the National Farmers Federation ($120,895.00).
241. The Australasian Rail Link ($84,827.47), the Australian Asia/Pacific Wholesalers P/L ($76,603.00), the Australian Chamber of Commerce and Industry ($56,987.00), the Australian Economic Analysis Pty. Limited ($51,097.00), the Australian Federal Police ($51,719.00), the Australian Institute of Marine & Power Engineers ($96,588.00), Idameneo (123) Pty. Ltd. ($80,226.00), and Sterling Winthrop Pty. Ltd ($62,716.00).
242. The free-time provisions are set out in text at page 444.
243. Mason J at 132.
244. Mason J at 145.
245. Mason J at 146.
246. Deane and Toohey JJ at 172.
247. Gaudron J at 221.
248. McHugh J at 237, 239.
249. There was no such funding available in 1968 when Senator McCarthy ran.
250. The same could be said about government financing of political campaigns. However, objective standards have been developed in many democracies, including even the United States.
251. Le Lys Rouge.
252. We thank Desmond Manderson for forcefully presenting this point. The point is also mentioned in passing in ACTV by Mason CJ at 145 and Deane & Toohey JJ at 174.
253. As occurred in the 1992 Tasmanian State Election.
254. We thanks Fiona Wheeler for eloquently presenting this point. In the wake of the only State election held under the Act, in Tasmania, a cartoon in a Tasmanian newspaper showed a television screen talking to a mailbox. When the smiling screen commented, "I had a quiet election, what about you?" the mailbox, buried in a mountain of letters, replied, "I'm stuffed!!" Hobart Mercury (Feb 1, 1992).
255. Ansolabehere and Iyenger (cited in note 153) at 15. Their findings are based on a study of the effect of negative advertising. See text at pages 470-71.
256. For a colorful rendition of it, see Joseph A. Schumpeter, Capitalism, Socialism and Democracy (Harper, [1942] 1975), especially chap 21, where he argues that "the typical citizen drops down to a lower level of mental performance as soon as he enters the political field. He argues and analyzes in a way which he would readily recognize as infantile within the sphere of his real interests. He becomes a primitive again [and tends] to yield to extra-rational or irrational prejudice and impulse." Id at 262.
257. Ansolabehere and Iyengar (cited in note 153) at 15, discussed in text at pages 470-71.
258. Compare Australian Communist Party v Commonwealth (1950) 83 C.L.R. 1, in which the Australian High Court invalidated the Communist Party Dissolution Act (1950) (Cth), with Dennis v U.S., 341 US 494 (1951), in which the U.S. Supreme Court upheld the imprisonment of the national leadership of the U.S. Communist Party for its speeches and writings. For an account of the Australian Act and its U.S. counterparts, see Mr. Justice Kirby, The Anti-Communist Referendum and Liberty in Australia (1990) 7 Australian Bar Rev 93.