On 30 September 1992, the High Court, with Sir Anthony Mason as Chief Justice, handed down the reasons for its decisions in two cases: Nationwide News Pty Ltd v Wills and Australian Capital Television Pty Ltd v Commonwealth. What emerged from these decisions was a judicial recognition of an implied constitutional freedom of political communication or discussion. This recognition was hailed by the Canberra Times as ‘a landmark in Australian constitutional history’. Clearly, the judicial imprimatur to such an implied freedom represented a seismic shift in the constitutional jurisprudence of the High Court. This development has been both lauded and attacked. It has been described as an ‘unprecedented step’, and ‘the most remarkable feature of Australian constitutional development in the past decade’. In 1994 Professor M. J. Detmold went to the extent of claiming, ‘We have the good fortune now to have the most creative High Court in our history’. Other commentators have vigorously criticised this development as an unjustified intrusion into the legislative domain. Sir Garfield Barwick, a former Chief Justice of the High Court, claimed that the sovereignty of Parliament had been impaired and denounced the implication as being inconsistent with parliamentary democracy.

Nationwide and ACTV

Nationwide arose from a prosecution against the owner of a newspaper, the Australian, which had published an article headed ‘Advance Australian Fascists’. The article claimed that the work of Australian workers was regulated ‘by a mass of official controls, imposed by a vast bureaucracy in the ministry of labour and enforced by a corrupt and compliant “judiciary” in the official Soviet-style Arbitration Commission [now replaced by the Australian Industrial Relations Commission]’.