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Minister had been entitled to prohibit political broadcast by a party that sought to ‘undermine the authority of the State’

By: Mark Tottenham BL

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Supreme Court: (a) allows appeal from High Court and sets aside a declaration that legislation was unconstitutional which gave the Minister for Communications the power to restrict certain material from being broadcast, on the grounds that the legislation did not give the Minister the 'wide, unfettered and sweeping powers' alleged by the challenger; (b) refuses to quash by way of certiorari an order of the Minister that the state broadcaster (RTE) refrain from broadcasting a party political broadcast on the part of a particular party ('Provisional Sinn Féin'), on the grounds that: (i) the Minister had sufficient material before him to make such a decision, and the material - which suggested that the party in question sought to undermine the authority of the State - had not been controverted in the application for judicial review; and (ii) in the circumstances of urgency where the order was made, it had not been a breach of natural justice to make the order without notice to the persons affected by it.

O'Higgins CJ (judgment of the court): Judicial review - order by Minister - Broadcasting Authority Act, (section 31) (No. 2) Order, 1982, [S.I. 21 of 1982] - section 31(1) of theBroadcasting Authority Act - constitutional validity of Act - candidate for Sinn Fein party - order that Radio Telefis Eireann refrain from broadcasting any party political broadcast by member of party 'styling itself Provisional Sinn Fein' - Article 40.6.1 of the Constitution - freedom of expression - expression of opinion - requirements of justice - whether sufficient notice given of the making of the order.

"The Court is of the opinion that section 31(1) of the Broadcasting Act , as amended, does not confer on the Minister the wide, unfettered andsweeping powers which have been alleged by the respondent. The Court is satisfied that the subsection does not exclude review by the courts and that any opinion formed by the Minister thereunder must be one which is bona fide held and factually sustainable and not unreasonable.For these reasons the Court has come to the conclusion that the invalidity alleged to attach to subsection (1) of section 31 has not been established. The Court will accordingly discharge the declaration of invalidity which the learned trial Judge made."

O'Higgins CJ (majority decision): Locus standi - sufficient interest in proceedings - procedure adopted by respondent - order impugned - whether Minister's order had been within the ambit of the enabling legislation - whether made in a manner unfair or unjust - evidence considered by Minister - extracts from An Phoblacht - evidence not controverted.

"In so doing he has used to the utmost limit the quick and effective remedy of certiorari in the face of an illegality which he alleges surrounds the Minister's action. While it might be preferable to have questions concerning the constitutionality of legislation dealt with by declaratory action in which the High Court, and this Court on appeal, could have the benefit of pleadings and, where necessary, submissions, I can see no real objection to the course adopted by the respondent."

"The word "matter" used in the subsection is wide enough to cover a broadcast on behalf of a named political party irrespective of its contents or any broadcast, however described, by any person or group of persons representing a named political party. It issuch a matter which is prohibited and the order is not directed againsta broadcast by a particular person as an individual or against any groupof individuals as such. It is directed against a broadcast on behalf ofSinn Féin or by any person or persons purporting to represent that organisation. It seems to me that such a prohibition is fully contemplated by the subsection."

"The time was short and a decision was urgent. There was no opportunity for debate or parley, and, indeed, to permit or seek such might, in the circumstances, have defeated the very object and purpose of the section. There may be many cases in which justice requires that those to be affected by action of this kind should receive notice and he heard. I am quite satisfied that this was not one of such cases."

"On the basis of the information which he had, it cannot be doubted that the Minister had cogent grounds for believing that Sinn Féin aimed at undermining the authority of the State. Any broadcast, therefore, which sought support for such an organisation could properly be regarded by him as being likely to promote or incite to crime or to tend to undermine the State's authority."

Walsh J (concurring): Whether RTE obliged to transmit political broadcasts - order prohibiting broadcast by particular party - power of Minister to prohibit broadcast - locus standi of applicant - whether sufficient interest in proceedings - whether order ultra vires the statute - whether sufficient information available to Minister - whether certiorari an appropriate remedy - flexibility of remedy.

"The Minister may well have taken a considerable risk in making such an order without attempting to hear the other side of the case. However, in the present case he had ample factual grounds available and no effort has been made since he made his order to contravert any of these factual grounds. It has been submitted that his order should be quashed simply because he did not go through the procedure of seeking the views of the party affected in advance. In view of the time factor, in my view he was justified in acting as a matter of urgency having regard to the cogency of the evidence already available to him."

Henchy J : Whether certiorari lay to quash the Order of the Minister - whether necessary to rule on constitutionality of legislative provision.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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