The Gazette 1983

GAZETTE

JULY/AUGUST

1983

no element of any possible prejudice to any party. The prosecutor was entitled to relief. The State (at the prosecution of Michael Murphy) v. The Governor of Saint Patrick's Institution — High Court (per Barron J.) 11982| ILRM 475. E. G. Hall BROADCASTING — Section 31 (1) of the Broadcasting Authority Act 1960 (as inserted by Section 16 of the Broadcasting Authority (Amend- ment) Act 1976) does not contravene the Constitution — Locus Standi of applicant The Respondent was one of seven candidates standing on behalf of the Sinn Fein Party in the General Election of February 1982. In its coverage of that election Radio Telefis Eireann agreed to allow Sinn Fein a two minute broadcast. The Respondent was selected to make the broadcast on behalf of his party. When RTE's decision to allow the broadcast was announced, the Minister made an Order entitled the "Broadcasting Authority Act (Section 31 (No. 2) Order 1982" (Statutory Instrument 21 of 1982) which specifically prohibited the proposed broadcast. The Order was made under Section 31 (1) of the Broadcasting Authority Act 1960 as inserted by Section 16 of the Broadcasting Authority (Amendment) Act 1976, which gives to the Minister the power to order RTE to refrain from broadcasting certain matters where he is of the opinion that they would undermine the authority of the State, or promote or incite crime. The Respondent challenged the Order, and the Section pursuant to which it was made, on several grounds, including the claim that it constituted an infringement of the Citizen's Right to express convictions and opinions as provided for in Article 40.6.1 of the Constitution. The Respondent succeeded in the High Court before O'Hanlon J. who accepted that the Section gave the Minister a far reaching power of veto over material for broadcasting which he found was not ^úsceptible of control by the Courts, as the Minister's opinion did not admit of judicial review and accordingly the Section enabled the Minister to act in an unfettered and unreviewable manner and contravened the Constitution. On appeal to the Supreme Court and in considering the constitutionality of the

Order and The Locus Standi of the respondent the Court held: (1) The decision of the High Court Judge followed opinions expressed by the Supreme Court in 1940 and again in 195 7 to the effect that the expression "is of opinion" did not admit of judicial review. However, judicial thinking has since undergone a change and recent decisions show that the power of the courts to subject the exercise of administrative powers tojudicial review has a wider reach than that shown by the older decisions. Article 40.6.1 of the Constitution enables the State, in certain instances, to control the freedom ofexpression and free speech granted by the Constitution. It places an obligation on the State to ensure that the organs of public opinion (for example, television) shall not be used to undermine public order or morality or the authority of the State. It is the State's duty to intervene to prevent broadcasts which are aimed at, or which in anyway would be likely, to have that result. These however are objective determinations and the fundamentalrights ofcitizens to express their opinion cannot be restricted on any irrational or capricious ground. It must be presumed that when the Oireachtas conferred these powers on the Minister it intended that they be exercised only in conformity with the Constitution. The Section does not exclude review by the Courts and any opinion formed by the Minister must be one which is bona fide held and factually sustainable and not unreasonable. The invalidity alleged against the Section has not been established. (2) The Respondent had a sufficient locus standi to bring the action. Although a citizen does not have access as of right to television, radio etc. RTE had agreed to afford him the opportunity of making the political broadcast, and the Minister's action deprived him of that benefit. As a result, the Respondent was entitled to complain that this deprivation was unlawful. (3) Although it might be preferable in other circumstances to have questions concerning the constitution- ality of legislation dealt with by declaratory action, with the benefit of pleadings, the securing of the relief sought in this particular case was of the utmost urgency, and the Respondent was quite entitled to use the quick and effective method of certiorari. (4) The Order made by the Minister was not invalid, as alleged, on any ofthe other grounds claimed by the Respondent. Firstly , the prohibition

was within the type of Order authorised by the Section. Secondly, the Order was not made without regard to the requirements of Justice. Even though the Respondent was not notified of the Minister's intention to make the Order, the Minister was bound to act immediately as he did, both by the Statute and the Constitution, as time was short and delay and debate would have defeated the very object of the Section. This was not a case where justice required that the person affected be heard. Thirdly, on the basis that the Order is reviewable by the Court, there are no grounds where the Court should set aside the Order. The Minister has disclosed fully ón affidavit the factual evidence on which he made his decision, none of which the Respondent has controverted, and which evidence clearly shows that Sinn Fein aimed at undermining the authority of the State. The fact that the contents of the proposed broadcast did not merit any condemnation is an irrelevant con- sideration, as the purpose of the broad- cast was to support an organisation which the Minister had reasonable grounds for believing was intent on undermining the State. The State (At the Prosecution of Sean Lynch) v. Patrick Cooney, Minister for Posts & Telegraphs, and the Attorney General — Supreme Court (per O'Higgins C J nem. diss.) (unreported) 28 July 1982. Karl Hayes

Edited by Gary Byrne

Copies ofjudgments in the above cases are available to members on request from the Society's Library.

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