Bradley v Commonwealth

Bradley v Commonwealth - [1973] HCA 34 - HCA 1973 case summary — Zoe

[5]

the Postmaster-General may without prejudice to the remedies for such refusal or neglect prescribed in section ninety-three resume possession of the said line and prevent the further use thereof by such person and such person shall not be entitled to any compensation for loss arising through the exercise by the Postmaster-General of the powers conferred by this section. On behalf of the defendants it was submitted that this section applies only to private lines. That submission would be supported by the marginal note ("Postmaster-General may resume possession of private lines for default") if it were permissible to regard it, but it is not: s. 13 (3) of Acts Interpretation Act Cth. The next succeeding section, s. 92, deals with the resumption of private lines and is followed by s. 93, which reads: If any person refuses or neglects to pay on demand the rent or charges due from him under the regulations for the use of any line of telegraphic communication the Postmaster-General may recover the same with costs in any court of competent jurisdiction. The words of ss. 91 and 93 are quite general but the question is, what is the meaning of the expression "any line of telegraphic communication"? The words "line of telegraphic communication" in these sections appear to mean the same as "telegraph line" in s. 97 (n) which enables regulations to be made for the purpose of: Prescribing the terms and conditions on which agreements may be made by the Postmaster-General or a Director with any person for the construction and maintenance of a telegraph line for the exclusive use of such person or for granting the exclusive use of any existing telegraph line to any person and prescribing the scale and times and manner of payment in advance or otherwise of the rent and charges to be paid by such person as the consideration for the agreement. It is true that ss. 91 and 93 do not use the adjective "exclusive" before the word "use". However, to speak of "the use of any line of telegraphic communication" is not a natural way of referring to the use of the telephone service, and the words "resume possession of the said line" are not apt to refer to the termination of a service or the disconnexion of a telephone. It therefore seems that ss. 91 and 93 refer to the private use of a telegraph or telephone line rather than to the use of an ordinary telephone service connected to an exchange. On this construction, s. 91 has nothing to say as to the disconnexion of telephones or the withdrawal or telephone services from an individual subscriber, and no other provision of the Act expressly deals with those matters. It then becomes necessary to turn to the Telephone Regulations, which are made under the authority of s. 97 of the Act. That section commences: The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which are necessary or convenient to be prescribed for carrying out or giving effect to this Act It goes on to provide that the Governor-General may, in particular, make regulations for certain specified purposes, none of which, however, would embrace the regulations about to be considered. The section then concludes: The power to make regulations contained in this section shall extend to the making of regulations binding not only upon officers and persons having business with the Department, but upon all persons whatsoever, and all regulations made in pursuance of this section shall have effect as if they were enacted in this Act.

[9]

It is submitted that this regulation, read in the context of regs. 5 (which provides that all telephone services are subject to the conditions set forth in the regulations) and 6 (by which a subscriber, on being provided with a telephone service, shall be deemed to have agreed to be bound by the several provisions of the regulations in force from time to time) gave the department, and therefore the Postmaster-General, a clear right totally to withdraw the telephone service provided to the Rhodesia Information Centre. The words "withdraw any telephone or other like service" are not defined but the phrase "withdraw the service" appears in reg. 17 (2), which provides that if a person is convicted of an offence against reg. 17 (1) (which prohibits a subscriber from selling or offering for sale his telephone service or from advertising the service as being for sale), the department may "withdraw the service in respect of which the offence was committed, and remove any telephones and other apparatus belonging to the Department". There are a number of other regulations which use different expressions in relation to the determination of a telephone service. Regulations 41 and 44 respectively empower the department to "order that the telephone service be disconnected from the exchange", cancel the agreement, cause the name of the subscriber to be removed from the telephone directory and order the removal of all instruments, etc. belonging to the department, where a subscriber fails to pay rental or other charges due or becomes bankrupt or makes a composition or scheme of arrangement with his creditors. Regulation 46, which relates to a person who, being a defaulter with respect to one telephone service obtains another, is in similar terms, except that it speaks of disconnecting the telephone rather than the telephone service. Regulation 63 also gives power to disconnect a telephone and remove instruments and fittings where any person while using the telephone has used objectionable language and in similar specified cases. Regulation 62 provides that in certain cases where a person has been convicted of carrying on an illegal business the Director may, without awaiting the result of any appeal, determine the agreement with the subscriber, remove the subscriber's name from the telephone directory and remove all instruments, etc. used in connexion with the service. It appears from reg. 62 (4), (5) and (6) that the action taken under reg. 62 (1) is regarded as having the effect that the telephone service is "discontinued". Finally it is necessary to notice reg. 10 (1) and (2) which provide as follows:

[12]

These regulations are by no means easy to construe. They display little consistency in the use of the various expressions which the draftsman has selected to describe the disconnexion of a telephone. The use of the words "withdraw the service" in reg. 17 (2) does provide some support for the view that the words "withdraw any telephone or other like service" in reg. 8 (1) refer to the disconnexion of an individual telephone. On the other hand, if reg. 8 were intended to confer a perfectly general and unrestricted power to deprive an individual subscriber of his telephone service for no reason, the detailed provisions of regs. 17 (2), 41, 44, 46, 62 and 63, which give a power of disconnexion only in the cases expressly specified in those regulations, would be largely unnecessary. The provisions of the latter regulations carry the strong implication that the telephone service of an individual subscriber cannot be disconnected or discontinued unless the conditions laid down in those regulations are satisfied. Moreover, those regulations (again in language which is not altogether consistent) confer an additional power to remove the telephone instrument itself, and the absence of this power from reg. 8 lends some support to the view that the relevant words of that regulation are not dealing with the disconnexion of an individual subscriber, but with the withdrawal of service generally in a particular area or during particular times. Further, whereas the other regulations mentioned expressly give the department a power to withdraw or disconnect or discontinue the service, reg. 8 merely reserves a right to the department to do so, and this suggests that the relevant part of the regulation is intended to afford the department a defence to an action for breach of contract, rather than to operate as the grant of any statutory power. An attempt must be made to place on the words of reg. 8 a meaning that will render them harmonious with the other provisions of the regulations, and for reasons already given if those words are ambiguous a construction should be preferred which would not confer on the Postmaster-General a completely arbitrary and unfettered power to cut off the telephone of any individual in the community. On the whole, therefore, it should be concluded that reg. 8 (1) upon its proper construction did not authorize the Postmaster-General to give a direction which had the effect that the telephone of the Rhodesia Information Centre was disconnected. In this respect, the Postmaster-General in his direction used words that had the colour of statutory authority, but he had no power to direct his officers to do what they in fact did, i.e. cut off the telephone. It is unnecessary to consider the meaning and effect of reg. 10 (2), because no written notice was given determining the service. It is also unnecessary, on the view that has been taken, to discuss the extent of the power given by the Act to make regulations, or the effect of the provision that regulations made in pursuance of the section should have effect as if enacted in the Act.

[18]

Two matters were suggested as justifying an exercise of discretion in the defendants' favour. First, reliance was placed upon the resolutions of the Security Council to which reference has already been made. These resolutions are, in their terms, addressed to member states who, by art. 25 of the Charter, have agreed "to accept and carry out the decisions of the Security Council in accordance with the present Charter". However, resolutions of the Security Council neither form part of the law of the Commonwealth nor by their own force confer any power on the Executive Government of the Commonwealth which it would not otherwise possess. The Parliament has passed the Charter of the United Nations Act 1945 Cth, s. 3 of which provides that "The Charter of the United Nations (a copy of which is set out in the Schedule to this Act) is approved". That provision does not make the Charter itself binding on individuals within Australia as part of the law of the Commonwealth. In Chow Hung Ching v. The King [1] , Dixon J. said: "A treaty, at all events one which does not terminate a state of war, has no legal effect upon the rights and duties of the subjects of the Crown and speaking generally no power resides in the Crown to compel them to obey the provisions of a treaty: Walker v. Baird [2] ", and a similar view was expressed by Latham C.J. in R. v. Burgess; Ex parte Henry [3] . Although, in those passages, mention is made of British subjects, it is clear since Johnstone v. Pedlar [4] that an alien, other than an enemy alien, is, while resident in this country, entitled to the protection which the law affords to British subjects. (See also Nissan v. Attorney-General [5] .) Section 3 of the Charter of the United Nations Act 1945 was no doubt an effective provision for the purposes of international law, but it does not reveal any intention to make the Charter binding upon persons within Australia as part of the municipal law of this country, and it does not have that effect. Since the Charter and the resolutions of the Security Council have not been carried into effect within Australia by appropriate legislation, they cannot be relied upon as a justification for executive acts that would otherwise be unjustified, or as grounds for resisting an injunction to restrain an excess of executive power, even if the acts were done with a view to complying with the resolutions of the Security Council. It is therefore unnecessary to consider whether the resolutions of the Security Council, properly construed, would require the Commonwealth as a member nation to take the action that has been taken against the Rhodesia Information Centre.

[20]

The second matter relied upon by the defendants is that the plaintiff is employed by, and acting in aid of, a regime which has usurped power and which it may be assumed has not become the lawful government of Rhodesia, and is not recognized as such by the Commonwealth of Australia, but must be regarded as being in a state of rebellion against the Queen. However the evidence does not reveal, and the defendants did not submit, that the activities of the plaintiff or any other person in connexion with the Rhodesia Information Centre were in any way illegal. It is true that the plaintiff is employed by a regime in Rhodesia whose activities, on the assumptions made, are illegal in that country, but neither that circumstance, nor the fact that he may be assumed to be endeavouring to influence public opinion in Australia in favour of that regime, means that he himself has committed any breach of the law. So long as he abides by the law of this country he is entitled to its protection, however wrong his opinions may be, and however legally and morally blameworthy may be the regime which he serves and supports. We were referred by counsel for the defendants to Litvinoff v. Kent [1] , but in that case M. Litvinoff was refused relief, not because he was representing an illegal regime, but because he had himself broken the law (having contravened the Defence of the Realm Regulations then in force) and committed breaches of covenant. To refuse a plaintiff relief to which he is otherwise entitled it should be shown that his own conduct has been illegal or improper. It is not enough that he is supporting a regime whose activities in another part of Her Majesty's dominions are illegal, provided that his support involves only the use of lawful and proper means, or that he is employed and paid by such a regime, provided that his employment does not involve him in any wrongdoing. There is very little evidence as to what the plaintiff is employed to do, but if it be accepted that the function of the Rhodesia Information Centre is mainly to disseminate propaganda in favour of the regime in power in Rhodesia, that does not mean that the plaintiff's activities are unlawful unless (and this is not suggested) he is guilty of sedition or is in breach of some relevant statutory prohibition. Moreover, if his activities are not unlawful, they cannot be described as improper in a legal sense, for there is no impropriety necessarily involved in endeavouring to persuade others to form favourable opinions of a cause which is considered officially, and perhaps by many members of the community, and perhaps for good reasons, to warrant condemnation. It follows that no justification has been shown for denying the plaintiff the relief to which he is legally entitled.

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Before

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Judgment (65 paragraphs)

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Cases Cited (1)