The significance of one High Court case interpreting sections 7 and 24 of the Australian Constitution
Name of case: ACTV case (Australian Capital Television Pty Ltd v The Commonwealth (1992))
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Relevant legislation | Facts of the case | Legal issue | Outcome | Impact |
Political Broadcasts and Political Disclosures Act 1991
| The Commonwealth passed the Political Broadcasts and Political Disclosures Act 1991.The law banned most political advertising on radio and television in the six months before a federal, state or local government election. | ACTV challenged the constitutional validity of the Act on the basis of the system of representative democracy set up by sections 7 and 24. ACTV argued that a system of representative democracy required some level of free speech and communication, at the very least in relation to political and election matters. A ban on political advertisement and the policies each candidate stood for meant that the public would be unable to participate properly in democracy. | The High Court found that a limited protection of communication and democratic participation was indeed implied by the wording of the Constitution. This is called an implied freedom of political communication. | The Political Broadcasts and Political Disclosures Act was held to be invalid, as it went outside the powers of the Parliament provided for in the Constitution. An implied freedom of political communication was found in the Constitution. The ACTV Case developed the idea of ‘proportionality’ in relation to rights protections and competing interests – the High Court held that this implied right was not absolute and that it could be limited for appropriate reasons and in appropriate ways.
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The significance of the case regarding the interpretation of sections 7 and 24 of the Australian Constitution: The ACTV Case established an implied freedom of political communication in the Constitution. The Court held that sections 7 and 24 insisting that the houses be “directly chosen by the people” created a democratic system of representative government and elections. In order to make an informed choice about which candidate they wanted to cast their vote for, the people needed to be able to listen to information about competing policies and participate in discussion about the relative merits of different candidates. To participate in a democracy, the public needed a freedom of political communication.Therefore the Commonwealth was unable to restrict advertising, discussion and public debate on a range of issues that could be considered ‘political’, without also having to consider whether it could argue a convincing reason why the restriction was necessary. The ACTV case demonstrated that the High Court considered itself able to find rights and protections beyond those expressly provided for in the Constitution, and that it was willing to do it. | ||||
Name of case: McCloy case (McCloy v New South Wales [2015])
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Relevant legislation | Facts of the case | Legal issue | Outcome | Impact |
Election Funding, Expenditure and Disclosure Act 1981 (NSW)
| According to the NSW Act, “prohibited donors” (specifically, property developers, and alcohol, gambling and tobacco interests) were banned from making direct and indirect political donations. Jeff McCloy, a property developer and former mayor of Newcastle, admitted to the Independent Commission Against Corruption (‘ICAC’) that he had given money to Liberal MPs.
| McCloy challenged the NSW ban. Hemostly relied on the Unions NSW precedent, but argued that the definition of “corruption” should be narrowed to only direct purchases of government decisions. He also argued that the restrictions would fail the Lange test for proportionality because of their focus on prohibited donors. | The challenge failed. The High Court decided that the new NSW law did not breach sections 7 and 24 and the freedom of political communication, and that the restriction was intra vires. | The Court upheld the validity of the NSW laws, the nature of sections 7 and 24 as conferring only a negative right was upheld (the freedom of political communication was explicitly described as a “qualified limitation on legislative power” by the majority judgment) and the Lange test for proportionality was modified by adding a third question. |
The significance of the case regarding the interpretation of sections 7 and 24 of the Australian Constitution: The Lange test for proportionality was modified by adding a third question. The decision in McCloy effectively confirmed that sections 7 and 24 apply to local government in relation to the freedom of political communication protection.
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Name of case: Roach case (Roach v Electoral Commissioner [2007])
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Relevant legislation | Facts of the case | Legal issue | Outcome | Impact |
Commonwealth Electoral Act, the 2006 amendment
| Prior to 2006, amendments to the Electoral Act prevented any person serving a prison term of three years or over from voting in a federal election. In 2006, the Parliament amended the law so that all people serving a federal, state or territory prison term of any length were disqualified. | Vickie Lee Roach, a Victorian woman serving a 4-6 year term of imprisonment, challenged the validity of both the original law and the 2006 amendment. She did so on the grounds that they were contrary to the implied meaning of sections 7 and 24, that they were inconsistent with the implied freedom of political communication (because connected to the freedom of political communication was an associated right to political participation) and that they were inconsistent with the separation of powers and Chapter III of the Constitution – because they amounted to additional punishment on top of the prison term. | The High Court held that the 2006 amendment was constitutionally invalid, but that the original prohibition on prisoners serving a sentence of three years or more was valid. An individual implied “right to vote” was rejected by a majority of the Court. A structural protection of close-to-universal suffrage (the right to vote in political elections) was found to be implied by ss7 and 24. | The validity of the original prisoner disenfranchisement law was confirmed, but the 2006 amendment was held to be invalid and, therefore, unenforceable; an individual implied “right to vote” was rejected by a majority of the Court; a structural protection of close-to-universal suffrage was found to be implied by sections 7 and 24 – the Parliament could, therefore, only disqualify people from voting for reasons that were substantial, and in ways that were appropriate to achieving a legitimate purpose; the Lange test for proportionality was held to apply to voting ‘rights’. |
The significance of the case regarding the interpretation of sections 7 and 24 of the Australian Constitution: A structural protection of close-to-universal suffrage was found to be implied by sections 7 and 24. The Parliament could, therefore, only disqualify people from voting for reasons that were substantial, and in ways that were appropriate to achieving a legitimate purpose. The Lange test for proportionality was held to apply to voting ‘rights’.
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