Commonwealth v Progress Advertising and Press Agency Company Pty Ltd [1910] HCA 28

Commonwealth v Progress Advertising and Press Agency Company Pty Ltd [1910] HCA 28 - HCA 1910 case summary — Zoe

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O'Connor J. It is quite clear that the plaintiffs must fail in this action, unless they succeed in establishing the ground of relief founded on the by-law of August 1908. On that ground also they must fail if the by-law is invalid. The only authority for the by-law is sec. 97, sub-see. (7); under no other provision of the Post and Telegraph Act 1901 can it be justified. Before adverting to the words of the sub-section it will be well to look at the class of facts against which the by-law is directed. An advertising company in the course of its business prints, and pro- poses to publish and circulate, a list of telephone subseribers with their numbers. It will probably be extensively used by sub- scribers, and it may be conceded that it will be necessarily inaccurate to an extent that may render its use by subscribers a substantial cause of confusion and delay in the working of the telephone system. The by-law takes authority to prevent the possibility of such a state of things occurring by prohibiting under penalty any person from printing, publishing, or circulat- ing without consent of the Postal Department any list of all or any telephone subscribers connected with any telephone exchange. It is obvious that the real ground on which the by-law was framed is that the Department has the exclusive right to publish the list, as it has the exclusive right to construct and operate public telephone services. On that ground the position of the plaintiffs is obviously untenable. But in the argument they have relied on the sub-section of sec. 97 that I have mentioned. The applicability of the sub-section involves the assumption that the Government are empowered to limit and control the businesses of persons unconnected with the Postal Department officially, contractually, or otherwise, in so far as they are likely to interfere with the effective working of the Post and Telegraph Department. The words which it is alleged give authority for this interference are as follow: - "The Governor- General may make regulations for . . . . all other matters and things which may be necessary for carrying out this Act or for the efficient administration thereof." The other sub-sections of sec. 97, leaving sub-see. (7) out of consideration, deal with persons outside the Department in one aspect only, that is to say, lay, down the terms on which contractual relations between the

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Department and persons not officers may be established. In none of the provisions as to specific matters is there any indica- tion of an intention to control in any other respect the actions of persons who are not officers of the Department. In Part VI. there are a series of provisions beginning with sec. 98, dealing with Post Office offences. Amongst other things made punish- able is fraudulent conduct on the part of any person with regard to the property and the operations of the Department. Several of the sections, however, do not deal with criminal acts in the ordinary sense. . They are apparently intended to secure the efficient working of the'Department, and they render punishable as-offences many things done or omitted to be done by persons not under departmental control which would not otherwise be punishable. For instance, under sec. 117 a person who without authority allows to remain on the walls of his house the words " Post Office," or to remain on any vehicle or vessel under his control the words "Royal Mail," becomes liable to a penalty. Some of the provisions of sec. 121, intended for the protection of postal pillars, are of the same kind. Sec. 128 makes it an offence to set up or use private telegraph posts on Crown lands or public roads without authority. By sec. 129 a person using a telegraph line under agreement with the Department may not under penalty make a charge to any other person for use of the line. I need not multiply instances, but it may be taken gener- ally that all through Part VI. the intention of the legislature is obviously to protect the property of the Department, and to secure the efficiency of its operations by making punishable as offences certain specific acts of commission or omission on the part of individuals who are not under departmental control. The fact that certain acts of omission or commission on the part of persons outside the Department likely to prejudice its working are thus specifically dealt with makes it unlikely that the legislature should have left open for control under by-laws the wide field which sub-see. (r), as the plaintiffs seek' to interpret it, would cover. If the defendants' contention is right every operation of private business which might pre- indicially affect the working of the Department may be con- trolled by by-laws of the Postal Department. I can see no differ-

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assumes to occupy. It is true the sub-section refers to the whole Act, and therefore the rest of the Statute must be looked at to ascertain whether elsewhere than in sec. 97 a wider outlook is properly attributable than would appear from the section itself, But I can find no indication of the kind. The only ground on which the regulation was sought to be defended was that the acts prohibited would or might constitute an actual impediment to or interference with the telephone operations of the service, and that the prevention of any possibility of this happening, however conjectural, was permissible. The legislature, however, has manifestly considered this branch of the subject for itself and made its own dispositions so far as it deemed necessary. Part VI. of the Act is concerned with penalties and prohibitions. The prohibitions extend to the general public as well as to the official staff, and to persons in contractual relations with the Department. Without attempting a classification either precise or exhaustive, we find prohibitions directed against infringement of the monopoly created by sec. 80, against fraud and conduct likely to lead to the consummation of fraudulent acts, the sending of objectionable articles, official breaches of duty, injury to departmental property, misleading the public, and obstruction direct and indirect to departmental action. See. 130 includes provisions penalizing injury to property, and also by sub-secs. (b) and (c) the obstruction, interruption, and impediment to com- munication and the transmission of messages. The offences are indictable, but a Justice of the Peace on the preliminary examination, if he thinks right under the cireumstances of a particular case, may deal summarily with it, and either inflict a tine not exceeding £25 or imprison for a term not beyond three months. The offence punishable under such a regulation as the present may be visited summarily with a fine of £50 if the framers choose to go to that limit. It seems very unlikely the legislature after dealing fully with offences, some of which concern those members of the public not in any privity with the Department, should have left this indirect and comparatively remote link in the chain of causation to be made the subject of penal consequences by the Executive.

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Judgment (89 paragraphs)

H.C. or A. Sprcrar case stated for the opinion of the Full Court. $910. An action was brought in the High Court by the Common-