process.85 To interpret election programme as we have done is consistent with that
distinction.
[99]
As noted, the legislative history shows that Parliament did not have parallel
campaigners in mind. We discount Ms Aldred’s submission that the legislation
contemplated them because political parties were not required to register as such at
the time; parties advertise their existence in a democracy, and there is no reason to
think that Parliament anticipated any difficulty in identifying them.86
Prohibition not confined to paid programmes
[100] We turn to the question whether the legislation controls only paid
programmes. As noted at [79] above, the heading to s 70 refers to paid election
programmes but the text does not. After a careful survey of the legislative history,
Clifford J took the heading as some support for his view that the legislature was
concerned to prevent political parties purchasing broadcast time for electioneering.87
[101] We accept the Commission’s submission that the prohibition is not limited to
paid programmes. The word paid appears to be an oversight, perhaps attributable to
the Broadcasting and Radio Communications Bill being passed through its second
and third readings under urgency.88 The Bill originally proposed to maintain the
1989 prohibition on the broadcast of election programmes “for a fee or any other
consideration”, but that provision was removed during the legislative process,
leaving the heading unchanged. Further, the model eventually adopted involved an
allocation of broadcast time that was either free (for opening and closing statements)
or paid from public funds, with other broadcasting being prohibited to support that
allocation regime; that being so, there was no need to focus on prohibiting paid
programmes. We agree with Clifford J that in practice commercial broadcasters are
85
86
87
88
High Court judgment, above n 1, at [222].
They are required to register now, but that is because the electoral system under MMP is based
explicitly on the existence and effective organisation of parties.
High Court judgment at [207].
Urgency was accorded on 21 August 1990 and the second and third readings took place on the
same day, the original Bill having been split into the Broadcasting Amendment Bill (No 2) 1990
and the Radiocommunications Amendment Bill (No 2) 1990.