Crikey reader Harold Thornton sent through this response to my item on political advertising in Tuesday’s edition:

Richard Farmer wrote on Tuesday, “In Australia where legislation governing what can and cannot be shown on television is clearly within the bailiwick of the Federal Government, prohibiting political commercials would quickly achieve what Liberal Senator Gary Humphries is seeking.” Er, no it would not. The Hawke government did precisely this in 1990 by amending the Broadcasting Act to prohibit political advertising. Sadly for us all, the High Court overruled the legislation by finding hitherto unknown “implied” terms in the constitution. I’m surprised Richard has forgotten it.

Alas, I do remember the High Court decision and still despair at the weakness of the Labor Government for not accepting the criticisms which led Mr Justice Mason to strike it down on the basis of an implied constitutional protection for freedom of speech and redrafting its law to comply with it.

His Honour, it seemed to me then and still does, was aware of the dangers of political advertising being dominated by the wealthy. In his judgment he weighed up the dangers of that against the difficulties which the legislation as passed presented to new political parties and organisations trying to influence an election outcome without actually standing candidates. He said in his judgment that:

It is obvious that the provisions of Div.3 regulating the allocation of free time give preferential treatment to political parties represented in the preceding Parliament or legislature which are contesting the relevant election with at least the prescribed number of candidates. Their entitlement amounts to 90 per cent of the total free time. Others must of necessity rely on the exercise of discretion by the Tribunal. As among the political parties, the principle of allocation to be applied will tend to favour the party or parties in government because it gives weight to the first preference voting in the preceding election. Furthermore, a senator who seeks re-election is given preferential treatment over a candidate, not being a senator, who stands for election to the Senate. The former, but not the latter, is entitled to a grant of free time. The latter must rely on an exercise of discretion by the Tribunal and the Act makes no attempt to enunciate the criteria according to which that discretion is to be exercised.

Mr Justice Mason seemed to believe that the Labor Party had slanted the legislation restricting political advertising on television to suit its own purpose and I have no doubt that he was correct. I still think that he was wrong in maintaining that that evil was greater than the evil of the wealthiest groups being able to dominate the debate but he clearly left open the solution of the Parliament coming up with a system that did not discriminate against those with only a small or no representation in a Parliament.

Perhaps we can provoke a renewal of this debate. It is certainly worth having. You will find the High Court decision to which Harold Thornton refers here.

Peter Fray

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