Government publications on referendum were not fair, equal, impartial or neutral

Denham CJ: Referendum - government publication - appeal from refusal of relief in High Court (Kearns P) - Thirty-First Amendment of the Constitution (Children) Bill, 2012 - expenditure of public monies on websites, booklets and otherwise to promote particular result in referendum - whether "McKenna principles" had been observed - relevant test - test adopted in High Court, that breach be something "blatant and egregious" - democracy - sovereign power residing in people as a whole - powers of government deriving from the people - requirement that information be equal, fair, impartial and neutral - right to equality - right to democratic process - fair procedures - freedom of expression - Venice Commission, “Code of Good Practice on Referendums” - law in other jurisdictions - use of phrase "protecting children" - "supporting families" - "why do we need a referendum" - images in booklet and website - error in booklet - television and radio advertisements - breaches of McKenna principles.

"It is clear from the facts set out previously that the material published by the Minister, funded from public monies, breached the McKenna principles. The respondents, in expending public monies in promotion of a particular result in the referendum process were acting in breach of the Constitution. ... On the facts of the case, I am satisfied that the booklet, website and advertisements published by the Minister with the use of public funds were not fair, equal, impartial or neutral."

Murray J: Government by consent of the people - power deriving from the people - right to fair and democratic referendum process being a right vested in the people - public funds promoting one side in referendum being a breach of that right - onus of proof - evidence called by applicant -

"It would seem that information explaining the underlying policy objectives was perceived as necessary if the electorate were to be fairly informed. If that were so, there was a misconception as to what was required by the McKenna case, namely, that fairness required impartiality and equal treatment when public funds are being used for this purpose. Taking the material as a whole one is driven to the ineluctable conclusion that it advocated the case for a yes vote without explicitly calling for a yes vote. This was done, with the aid of public funds, to the disadvantage and detriment of those making the case for a ‘no’ vote."

Fennelly J: Process for amendment of constitution - whether public money could benefit one side of a referendum campaign over another - democracy - equal treatment - web site - booklet - context of McKenna judgment - entitlement of court to intervene - "clear disregard" test adopted in McKenna - "blatant and egregious" test adopted by High Court.

"In my view the campaign for the referendum conducted by the Minister under the guise of an information campaign was not fair neutral and impartial and its conduct amounted to clear disregard of the limits on the acts the State may perform during a campaign concerning a proposal to amend the Constitution. It is not equal or impartial. It is imbued throughout with value judgments, with positive statements about the several aspects of the referendum proposals. I share the reluctance of the learned President to pass judgment on statements made by responsible actors in the political domain; this should not be the business of the courts. I reach this conclusion with reluctance. I would not pass judgment based on an occasional or stray partisan twist or refined analysis of individual statements. The striking feature in the present case is the one-sided tendency of the campaign when viewed as a whole."

O'Donnell J: Compressed timescale for preparation of case - information campaign - website and its content - evidence of witnesses - "blatant and egregious" test - test of reasonableness - obligation of court to intervene when government acted in clear disregard of its powers and duties.

"It is irrelevant that the material can be seen as low key, lacking in stridency, or not direct advocacy of a yes vote. As counsel for the plaintiff observed, subtle advocacy may be much more effective than a blatant or egregious advocacy. Indeed much successful campaigning in a political context may involve avoiding hard edged statements of detail with which people may disagree, and an attempt to associate the candidacy or proposal with ideas which themselves are popular and acceptable and the creation of a mood and impression which is favourable. Thus the material used in the Referendum campaign of those political parties which were unambiguously in support of the proposal, and campaigned directly for it, was often limited to attractive images of children and slogans such as “every child matters” and “children should be seen and heard”. The presentation of such images and slogans are attempts to frame the debate in terms favourable to one side. It is a common observation that a person who is able to frame the debate, particularly if they can put themselves in a trusted position as the purveyor of information, will often succeed. The most valued position in politics, is the appearance of being above politics. The fact that the message here cannot necessarily be described as strident, blatant and egregious, or campaigning advocacy or propaganda, is to miss the point. The only question is whether it was fair, equal, impartial and neutral. Making every allowance for the range of possible views I consider that it has been clearly established that it was not."