Herald & Weekly Times Ltd v Commonwealth

Herald & Weekly Times Ltd v Commonwealth - [1966] HCA 78 - HCA 1966 case summary — Zoe

[9]

The provisions now in question are superimposed upon this licensing system. At one stage of the plaintiffs' argument it was contended, in regard to such of the provisions now under attack as subject a licence to conditions, or as prescribe criteria for the eligibility of a company to receive a licence, that the question whether they are valid as having the character of laws with respect to television services depends wholly upon the nature of the conditions or criteria. To uphold this contention would be to overlook the fact that any provision which operates to create or delimit a power in given circumstances to relax in favour of a television station the general prohibition upon television transmission has, of necessity, by reason of the very fact that it has that operation, the character of a law with respect to television services. It is not necessary, in order that a provision so operating shall be within the constitutional power, that the persons, things, situations or events referred to in it shall themselves possess characteristics which supply a further link with the subject of television services. This was pointed out by Taylor J. during the argument in Television Corporation Ltd. v. The Commonwealth [1] by reference to the cases of Huddart Parker Ltd. v. The Commonwealth [2] and Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan [3] . The question is quite different from that which arises where a purported exercise of a statutory power to grant licences upon conditions is attacked as having been actuated by a purpose extraneous to the power. A law which qualifies an existing statutory power to relax a prohibition is necessarily a law with respect to the subject of the prohibition. Even if the qualification gives it the additional character of a law upon some other topic - even, indeed, if that other topic be not a subject of federal legislative power - it is still a law with respect to the subject of the prohibition, and is valid if that subject be within federal power: cf. Fairfax v. Federal Commissioner of Taxation [4] .

[13]

The division goes thus far by providing that for the purposes of the division a person has "a prescribed interest" in a licence (a) if he is the holder of the licence; or (b) if he is in a position to exercise control, either directly or indirectly, of the licence, that is to say if he is in a position to exercise control of the company that holds the licence, of the operations conducted under or by virtue of the licence, of the management of the licensed station, or of the selection or provision of the programmes to be televised by the station: see s. 91 (2) (a) and (b) and s. 92A(1). But this is only the beginning. By a series of far-reaching provisions, particularly those made by s. 91 (2), the concept of "a prescribed interest" in a licence is extended for the purposes of the division, so that for those purposes a person is to be taken to have such an interest in a wide variety of situations including some where he has no legal or beneficial interest either in the licence itself or in any share in the licensee company, and may not have - indeed in many cases is unlikely to have - any degree of control whatever of the company, of the operations under the licence, of the management of the station, or of the selection or provision of the programmes to be televised by the station. By other provisions (see ss. 92A and 92B), a person is to be deemed to be in a position to exercise control of a licence if he stands in any of a variety of situations not all of which are such as necessarily or ordinarily to give him any voice in the control of the licence. We have been given in the course of the argument a number of striking illustrations of the possible working of these provisions, and with their aid the contention has been strongly pressed upon us that a law which would be on the subject of television services if its operation were limited by reference to proprietary interests or to real control, but is expressed to operate by reference to situations where there is or probably is neither proprietary interest nor actual control, should be held not to be a law with respect to television services at all.

[15]

It is unnecessary here to describe the challenged provisions in greater detail. One need only read them to agree with the plaintiffs that they cast a net so wide as to cover many a concrete case that may be imagined, where it is most unlikely that the person concerned would find himself in a position to exercise any form or degree of control, or even of influence, in relation to any television licence or television station. But it does not follow that for this reason they are beyond power, unless the assumption be accepted which the plaintiffs' argument in truth made, that a law cannot be with respect to television services unless there can be seen, in every kind of case that it covers, some likelihood of there being an opportunity of influence or control in respect of a television service. The assumption, in my opinion, unduly limits the notion of substantial connexion upon which the Constitution insists when it uses the expression "with respect to". Undoubtedly it is right to scrutinize minutely the effect of a challenged law in all the variety of cases to which it applies according to its terms; but when that has been done the broader inquiry remains: what, then, is the law really doing by the operation which the scrutiny reveals that it has? For it is the answer to that question that shows whether the law is really one "with respect to" the relevant subject matter of power. The answer to it here surely is that the offence provisions are setting up a barrier against, not indeed the probability, but the possibility that a person who may be able, by reason of any of a number of legal or business relationships, to influence the exercise of the rights conferred by one television licence may be able, by reason of such a relationship, to influence the exercise of the rights conferred by another television licence. If it were correct to say of any of the relationships that in no case could it carry with it a special opportunity to exert such an influence, the relevant provision would no doubt lack the necessary connexion with the subject matter of power. But this cannot be said of any of the relationships which the division describes. Each gives rise to a situation which according to ordinary experience may, in some cases at least, support an endeavour to affect the control or management of a television station or its operation under its licence. And, as everyone knows, even the faintest of voices may sometimes carry the day.

[27]

The rejection of what I regard as the plaintiffs' most fundamental and far-reaching proposition, although important not merely in relation to the proposition to which it was directly addressed, would not of itself, however, involve the failure of their action for, upon their behalf, it was further contended that among the provisions of Div. 3 of Pt IV of the Broadcasting and Television Act 1942-1965 Cth there are prohibitions upon persons not holding television licences which concern matters foreign to television services. Although it seems doubtful whether the plaintiffs have locus standi to attack all the prohibitions which counsel has sought to impugn, no objection was raised to the Court dealing with all the questions of validity which were raised. These prohibitions relate in the main to holding shares in, and lending money to (1) companies holding television licences; and (2) companies holding shares in such companies. Any person holding shares or debentures constituting what is described as a "prescribed interest" in a specified number of television licences commits an offence for which a penalty is provided. Restrictions are also imposed upon persons being directors of companies in a position to exercise control over television licences. These prohibitions are given far-reaching operation by legislative extensions of what could be regarded as constituting a legal interest in a television licence or a legal power to control a television licence. In the result, the operation of the laws under consideration extends to remote interests in, and modest influences upon, companies holding television licences. The laws are concerned with matters of business influence rather than of legal power. A law governing a particular relationship may, however, be supported by a legislative power with respect to a subject matter notwithstanding that the connexion between the legal relationship and the subject matter of legislative power is of practical rather than of legal significance. Thus, a law prohibiting a member of the Federal Executive Council from holding shares in a company holding a television licence or a company holding shares in such a company would, I think, be valid as a law with respect to television services.

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