Broadcasting Company of Australia Pty Ltd v Commonwealth [1935] HCA 3;

Broadcasting Company of Australia Pty Ltd v Commonwealth [1935] HCA 3; - HCA 1935 case summary — Zoe

[11]

This objection is, of itself, sufficient to invalidate the regulation, but its invalidity can be demonstrated upon broader grounds. For the essence of the regulation is its attempt to alter and set aside the accrued rights of those who had already provided a broadcasting service to the public, and for whose remuneration provision had already been made in the regulations. No one disputes that the mere fact that a statute of the Commonwealth Parliament operates retrospectively is insufficient to invalidate it. But, where the executive Government attempts to give to a regulation a retroactive operation, the validity of the regulation is necessarily dependent upon the precise term of the grant which the Parliament has conferred upon the Executive. In the present case the regulation-making power of the Governor-General is limited to such matters as are necessary or convenient in relation to the purpose of "carrying out or giving effect" to the Act. It is argued that the present regulation merely "adjusts" the amount of remuneration payable to the plaintiffs. But an "adjustment" which involves so substantial an interference with an admittedly accrued right to remuneration for past services, is perhaps better described by another name. However described, its legal effect is clear; and, in our opinion, no purpose of the Act is carried out or given effect to by such a provision. It is said that clause 8 of the Wireless Agreement embodied in the Act No. 37 of 1927, and referred to in clause 1 of the regulation, should have resulted in a revision of the fees payable to the plaintiffs. But although such clause may explain the origin of the present regulation, it has no other relation to the question before us. Indeed, the reference to the Wireless Agreement Act rather emphasizes the fact that the serious alteration of the plaintiffs' accrued rights should have been effected by specific legislation, and not by the regulation-making power conferred by the Wireless Telegraphy Act.

[17]

The plaintiffs seek a declaration that this regulation is void either wholly or in so far as it purports to apply retrospectively between the period 1st November 1927 and the date of the regulation, or to deal with any liability accrued under reg. 62. The demurrer raises the question of the validity of the regulation. In my opinion the regulation is void in so far as it purports to authorize a further deduction from the available revenue accruing prior to the date of its adoption. I place my judgment on a very simple ground. The power to make the regulation is conferred by sec. 10 of the Wireless Telegraphy Act 1905-1919, and enables the Governor-General to make regulations not inconsistent with the Act "prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act." To diminish the remuneration or revenue to which the licensees had become already entitled for services already rendered is, in my opinion, a thing neither required nor permitted to be prescribed by the Act nor which is necessary or convenient to be prescribed for carrying out or giving effect to the Act. It is not directed towards anything which the Act is designed to effect or achieve. It is not concerned with any operation to be performed under the Act. It is concerned only with the past due debt of the Commonwealth. The retrospective operation of the regulation achieves nothing but a reduction of a matured liability of the Commonwealth. The liability may have been payable in futuro but none the less was owing in præsenti. The contention that the agreement referred to in the regulation impugned, which agreement the Commonwealth had made with the holder of wireless patents, was likely to operate in relief of the plaintiffs, and that this called for additional expenditure on the part of the Commonwealth, appears to me to be beside the point. For these reasons I think par. 2 of the regulation 67A is void. I have some doubt whether it is possible to sever this clause from clause 1, but in the circumstances of this case, and having regard to the view of the majority of the Court, it is unnecessary to deal with this matter. The demurrer should be overruled with costs.

[20]

There are two classes of broadcasting station licences, namely, those for Class A and Class B stations respectively. A broadcasting station licence continues in force for a period of five years, and is renewable annually thereafter. The A class stations receive proportions of the available revenue, which means the balance of the fees collected by the Department under the regulations, subject to certain deductions. The available revenue is payable quarterly, on dates to be determined by the Minister and to such extent as the Minister considers justified. In Victoria there were two A class stations - the two plaintiffs the Broadcasting Co. of Australia Pty. Ltd. and the Associated Radio Co. of Australia Ltd. - which were entitled to the available revenue in accordance with the regulations in the proportions of 70 and 30 per cent respectively. These companies, in May of 1928, sold and assigned to the third plaintiff, Dominion Broadcasting Pty. Ltd., as from 1st March 1928 and 1st January 1928 respectively, all licence fees and revenues received from their broadcasting operations. In August of 1928 the Governor-General made certain regulations (1928 No. 79) under the Wireless Telegraphy Act 1905-1919, one of which was as follows: - "3. (1) After regulation 67 of the Wireless Telegraphy Regulations the following regulation is inserted: - 67a. In addition to the amount deductable from the licence-fees specified in the last preceding regulation, the Postmaster-General may deduct from the respective licence-fees an amount not exceeding fivepence for each month of the currency, after 1st November 1927, of any such licence issued before 1st January 1928. Of the amount so deducted the sum of threepence shall be utilized by the Postmaster-General in accordance with clause 8 of the agreement contained in the Schedule to the Wireless Agreement Act of 1927, and the balance shall be utilized as the Postmaster-General thinks fit. (2) This regulation shall be deemed to have commenced on 1st November 1927."

[23]

But it is contended that the power to make regulations cannot affect accrued or vested rights, or apply retrospectively to a period prior to the date of such regulation. By the terms, however, of the regulation of 1924, and of the licences themselves, every licence is subject to the provisions of any regulation from time to time made under the Act, so far as they are applicable, and the provisions are incorporated in the licence. It is difficult to speak of accrued or vested rights when they are so conditioned. Nevertheless, it is said that the regulating power cannot authorize the creation of new obligations or duties in respect of transactions or considerations already past. The question is really one of construction of the power. It is quite true that Acts ought not to be construed so as to have a restrospective operation unless their language is such as plainly to require such a construction. But the grant of the power in the present case is in the widest terms; it includes matters which are necessary or convenient to be prescribed for carrying out or giving effect to the Act. The only restriction upon the power is that regulations made pursuant to it shall not be inconsistent with the Act. The power of Parliament to legislate retrospectively cannot be denied. And there is no rule that denies the right of Parliament to delegate the power of regulating retrospectively matters necessary or convenient to be prescribed for carrying out or giving effect to the Act. The Act under consideration - being, as I have already observed, in skeleton form - confers power to regulate not only the whole detail of administration, but also the creation, definition and regulation of the rights of the subject. The power - within the ambit of the authority given - is as extensive as that of the Parliament. It enables the grant of licences on such terms and conditions and on payment of such fees as are prescribed. It is not inconsistent with any provision, express or implied, in the Act, that the power should be exercised retrospectively; a regulation is not beyond power because it is retrospective or retroactive.

At a glance

Court

Decision date

Before

Source

Judgment (27 paragraphs)

Broadcasting Company of Australia Pty Ltd v Commonwealth [1935] HCA 3; (1935) 52 CLR 52 (21 February 1935)

Parties

Legislation Cited (5)

Cases Cited (1)