Jones v The Commonwealth

Jones v The Commonwealth - [1965] HCA 6 - HCA 1965 case summary — Zoe

[8]

The plaintiff attacks the validity of the notice of acquisition published in the Government Gazette dated 15th October 1963 on the ground that the purpose which it specifies as the purpose for which the land is acquired is not a "public purpose" within the meaning of the Lands Acquisition Act 1955-1957 Cth. The purpose stated in the notice is "the provision of broadcasting and television studios and offices for the Australian Broadcasting Commission in accordance with the Broadcasting and Television Act 1942-1962 ". The Lands Acquisition Act in s. 5 (1) defines "public purpose" as "a purpose in respect of which the Parliament has power to make laws, and in relation to land in a Territory of the Commonwealth includes any purpose in relation to that Territory". It is my view that the words in the notice purporting to express the public purpose required by s. 10 (3) of the Lands Acquisition Act do in fact express a purpose. The test is laid down by the Chief Justice in Jones v. The Commonwealth [1] : "I do not regard a corporation as a purpose within the meaning of this statute. What it does may afford purposes, what it desires to do may afford purposes, what it is authorized to do may afford purposes, but that is not the same thing as the corporation itself" [2] . The statement in the notice here under consideration clearly indicates that the Commonwealth of Australia desires to acquire the land so that it may erect broadcasting and television studios and offices pursuant to the Broadcasting and Television Act. But does the purpose constitute a "public purpose" within the meaning of s. 6 (1) of the Lands Acquisition Act? The purpose is limited in its terms to the performance of certain functions which are authorized by the Broadcasting and Television Act, so the issue is whether those provisions of that Act relating to the provision of broadcasting and television studios and offices are within the constitutional power of the Federal Parliament. However, it is clear that if those provisions are in fact intra vires, the purpose expressed in the notice of acquisition published in the said Government Gazette is a "public purpose" within the meaning of the Lands Acquisition Act.

[12]

However, it is argued that for two reasons the effect of the Order is not to make a reservation within the meaning of the Lands Acquisition Act. The first is that in the scheme of the Town and Country Planning Act, interim development orders are merely a kind of temporary injunction designed to regulate the use of land pending the making of a final planning order and will be superseded by the making of the final planning order in which the reservation may not be preserved. In my view, this feature of the Order does not make its effect any the less a reservation. Even though the Order may not be final nevertheless it effectually reserves while it is in force, and there is nothing in s. 6 (2) of the Lands Acquisition Act to indicate that the reservation contemplated must be permanent and irrevocable. Indeed, as was pointed out by Mr. Aickin many other forms of reservation are subject to alteration and revocation. The second objection is that s. 6 (2) contemplates that if the land reserved is to be protected from acquisition by the Commonwealth it must at the time of acquisition be used as a public park. The land the subject-matter of this action was not at the time of the service of the notice being used as a public park but as a private garden which was its use at the time of the commencement of the operation of the Order. According to the language of s. 6 (2) land is protected from acquisition if it is "reserved as a public park". It is said that the word "as" means in this context that the land has already passed into use as a public park, not merely set aside for use as such in the future; and, that if the provision was intended to protect the land in the latter situation the words "reserved for a public park" would have been used. I think that this is too restrictive a construction to do justice to the provision. The words "reserved as" mean that the purpose of the reservation is that the land is a park or to be used as such because of an effective reservation. The expression "reserved as a public park" has not a technical meaning. It should be construed according to the ordinary meaning of the words. The word "reserved" is concerned both with preserving the current use of the land as a park and to save the land for use as a park if reserved for such a use. I think that the expression upon its proper construction covers the situation not only where land is at present being used for a park being the subject of a reservation for that purpose but also where land is the subject of a reservation protecting it for use as a park in the future. I reach the conclusion that the land is "reserved as a public park" within the meaning of s. 6 (2) of the Lands Acquisition Act and is thus protected from acquisition by the Commonwealth because of the operation of the Order.

[13]

The view which I take of the objection raised under s. 6 (2) of the Lands Acquisition Act renders it unnecessary for me to add anything further to show that the plaintiff is entitled to a declaration that the acquisition is invalid. However, I would like to express briefly my opinion that the transmission of messages, that is, sound and pictures, to listeners and viewers by television is a "like" service within the meaning of s. 51 (v.) of the Constitution. I think that the reasoning of the majority in R. v. Brislan; Ex parte Williams [1] is adequate to support this conclusion. As to ss. 59 and 60 of the Broadcasting and Television Act, I think that it is an erroneously narrow view of what is incidental to the conduct of a television service to hold that these sections travel beyond its well recognized functions. Like every other power conferred upon the Parliament by s. 51 of the Constitution, par. (v.) of that section must be given an ample construction consistent with the subject-matter in respect of every service within its scope. So far as broadcasting and television are concerned, it is not an exhaustive description of either service to say that it consists only of the transmission of messages handed to it. The very description "broadcasting and television service" implies something more than the mere provision of a method of communication. Proper incidents of such services are the preparation of programmes for broadcasting to inform and entertain the public. It is incidental, therefore, to the conduct of the service not only to provide and compile adequate and comprehensive programmes for transmission but also to take appropriate measures to maintain a supply of programmes for transmission, and to inform and interest the public in such activities. As I understand the language of the sections in question, they are laws directed to purposes covered by par. (v.) so far as it relates to broadcasting and television services. For these reasons I hold that ss. 59 and 60 fall within s. 51 (v.) of the Constitution.

[22]

I have come to the conclusion that this argument should not prevail. Brislan's Case [1] shows that a radio broadcasting system (and it follows that a television broadcasting system) is a telegraphic, telephonic or other like service, being an organized method provided as a means by which a person may transmit communications, receivable through the ear (and, in the case of television, the eye), for reception by such other persons as put themselves in a position to receive it. Since the decision in that case it cannot be denied, I think, that the power under s. 51 (v.) is not confined to providing for the establishment, maintenance and operation of telegraphic, telephonic or other like services, but extends to the choice of the persons who may make use of such a service either to send or to receive communications, to the conditions upon which persons may so use it, and to every aspect of the use and advantage they may have from it. No narrower view would be consistent with the broad understanding, upon which Brislan's Case [1] insists, of the grant of power in s. 51 (v.). It is settled that a law creating a corporation to engage in a specified form of activity is a law with respect to that form of activity: Australian National Airways Pty. Ltd. v. The Commonwealth [2] . Accordingly a law creating a corporation to engage in the sending of communications by means of a telegraphic, telephonic or other like service is a law with respect to the activity of sending such communications; and since, as is clear from the reasoning of Brislan's Case [1] , a law with respect to the sending of communications by means of such a service is a law with respect to such a service, the law creating the corporation must, I think, be held to be within power. If, for example, a person possessing a receiving instrument connected to a land line telephone service wishes to receive by means of the service a ball-to-ball description of a cricket match, it seems to me to follow from the cases cited that a law which (e.g. by setting up an appropriate corporation) enables him to be supplied by that means with the desired description is a law with respect to the telephone service. Indeed it is so not only because it provides for particular transmissions over the telephone but, regarded from the other end, because it provides for particular receptions and so for an increase of the benefits the recipient may derive from the service.

[33]

Section 51 (v.) of the Constitution gives the Parliament power to make laws with respect to "postal, telegraphic, telephonic and other like services". In Brislan's Case [1] it was decided that this paragraph confers on the Parliament power to legislate with respect to radio broadcasting, and an appeal against a conviction upon an information for having an unlicensed wireless receiving set in contravention of the Wireless Telegraphy Act was dismissed. Latham C.J. said: "The common characteristic of postal, telegraphic and telephonic services, which is relevant in this connexion is, in my opinion, to be found in the function which they perform. They are, each of them, communication services. This is also the characteristic of a broadcasting service in all its forms, which is therefore, in my opinion, a "like service" within the meaning of s. 51 (v.) of the Constitution. If a new form of communication should be discovered, it too might be made the subject of legislation as a "like service" " [2] . Rich J. and Evatt J. considered that wireless broadcasting is a telephonic service. Starke J. said: "It was argued that the likeness of a service to those enumerated depends upon the character of the service; it must be a service, it was said, under the control of the Government, and it must provide for the transmission and reception of communications between citizens and be private in its nature. But in my opinion the likeness of the service depends upon no such considerations, but upon the likeness of the means by which the service is performed. Thus there is no material distinction between a telegraphic and a telephonic service (Attorney-General v. Edison Telephone Co. of London [3] ); in both cases communication takes place by means of a wire acted upon by electricity": [4] . McTiernan J. said: "Since the decision of the Judicial Committee in In re Regulation and Control of Radio Communication in Canada [5] the view must be accepted that broadcasting as established and regulated by the regulations, made pursuant to the Wireless Telegraphy Act 1905-1919, may be classed with telegraphic and telephonic services. It follows from this decision that s. 51 (v.) of the Constitution upon its true interpretation authorizes Parliament to legislate with respect to the service of broadcasting": [1] . In dissenting, Dixon J. took a narrower view of the power conferred by s. 51 (v.), confining it to services providing inter-communication.

[38]

The scheme of the Act is not that the Commission is licensed to transmit programmes, but that the Postmaster-General is required to provide and operate transmission stations and equipment for the purposes of the broadcasting and televising of programmes of the Commission, ss. 73-76. The principal function of the Commission is that described in s. 59 (1) of the Act as follows: "Subject to this Act, the Commission shall provide, and shall broadcast or televise from transmitting stations made available by the Postmaster-General, adequate and comprehensive programmes and shall take in the interests of the community all such measures as, in the opinion of the Commission, are conducive to the full development of suitable broadcasting and television programmes." Other sections, such as ss. 66, 114, 115, 116 and 118, show how the programmes of the Commission are the concern of the Act. Section 63 of the Act is as follows: " - (1) The Commission shall provide such studios, offices and other accommodation as are necessary for the proper performance of its powers and functions under this Act, and such accommodation in relation to the studios as the Postmaster-General requires for the proper carrying out of the technical services to be provided by the Postmaster-General. (2) The location of any studios to be provided by the Commission in pursuance of this section shall be subject to the approval of the Postmaster-General." These legislative provisions leave me in no doubt that the primary function of the Commission is to provide and present broadcasting and television programmes for transmission by the Postmaster-General. It is true that, according to s. 59, the broadcasting and televising, and not merely the provision of programmes, is to be done by the Commission but, in the context, this means no more than that the presentation of programmes is the responsibility of the Commission, leaving the transmission of the programmes as the responsibility of the Postmaster-General under ss. 73 and 74.

[45]

The plaintiff was at the date of the notice of acquisition the proprietor of the land for an estate in fee simple. It is not suggested in the statement of claim that she had dedicated it by way of charitable trust as a public park or for public recreation or that the public had any rights of entry or of user. Therefore the land, which we were told is in fact the private garden of the plaintiff, was neither dedicated nor vested in trustees as a park or otherwise for the purposes of public recreation. But it is said that, as a result of the operation of the Melbourne and Metropolitan Board of Works Interim Development Order 1961, it was "reserved as park". This order was made pursuant to the Town and Country Planning Act 1961 Vict.. That Act repeals and consolidates earlier legislation on the same subject. For present purposes its importance is that, in accordance with procedures that are now fairly common in this branch of the law, it authorizes the preparation of planning schemes which may make provision for various matters stated: see s. 9 and the Third Schedule. One of these matters is "Land to be reserved for public purposes". And, again in accordance with procedures that are now familiar, the Act authorizes the making of an interim development order which may regulate, restrict, restrain or prohibit the use or development of any land to which a planning scheme relates. Any provision in an interim development order whereby any land is expressed to be reserved or to be deemed to be reserved for any public purpose is a valid exercise of the power to regulate, restrict, restrain or prohibit the use or development of such land: s. 17. There are in the Act other references to land which is "reserved or proposed to be reserved for public purposes under a planning scheme": see e.g. ss. 40 (2), 42 (1) (c), 42 (3), 42 (5). Interim Development Order 1961 has, under a heading "Reserved Land", a clause providing that reserved land as shown in the planning map is "deemed to be reserved for the purpose stated" in the order. The purpose for which the subject land is thus "reserved" is expressed as "Open Space - public proposed". This designation - and I use that word as a neutral term and because it is often used in writings on town and country planning law - indicates that it is intended that the land shall, if the scheme as proposed be approved and carried into effect, become an open space to which the public will have rights of access. It is to be contrasted with the designation "Open Space - public existing", which refers to presently existing parks and reserves to which the public have access. I am prepared to assume that, in this context, a public open space is, according to the common terminology of town planning, a place to which the public have access as of right for purposes of recreation. But is land that in the Interim Order is thus "reserved" land that is "dedicated or reserved" as a public park within the meaning of the Lands Acquisition Act s. 6 (2)? I think not.

[49]

The power of the Commonwealth Parliament to make laws with respect to "postal, telegraphic, telephonic and other like services" means, I take it, postal, telegraphic, telephonic and other services of a like kind. The logical process that it postulates is that of generalization, of aggregation on the basis of likeness. To come within the genus a thing that is not itself a postal, telegraphic or telephonic service must be a service that has the common characteristic on which the genus is based. It seemed to me, therefore, in listening to the argument that little is to be gained by the enumeration of similarities between wireless telegraphy and television. A candidate for inclusion in the genus must be as like, in the relevant sense, unto a postal service as it is unto a telegraphic or telephonic service. I must say that, if it were not for the decision in R. v. Brislan; Ex parte Williams [1] I would have thought that the feature which would make a "like service" was an organized system enabling individuals to communicate at a distance one with another and having that as its primary purpose. I would have taken the same view as Dixon J. did in his dissenting judgment in that case. I would not have thought that the provision of a means having as its primary purpose the mass dissemination, either vocally or visually, of material that anyone having the necessary instrument might hear or see was a like service. But the Court decided otherwise in relation to radio broadcasting. That decision I, of course, accept. I do so the more readily because the very nature of the subject-matter makes it appropriate for Commonwealth control regardless of State boundaries. And the decision itself was not questioned before us in this case. It follows I think that the Commonwealth Parliament may provide and control, or authorize a corporation of its creation to provide and control, television stations: it may authorize or forbid others to do so. And it seems to me that it may control or authorize its corporate agency to control the programmes to be shown and, if it desires, to provide them. Once it be conceded that Commonwealth power extends to radio and television broadcasting as like services within s. 51 (v.) the laws that may be made with respect to them are a matter for the Parliament.

[52]

Section 30 of the Broadcasting and Television Act 1942-1962 sets up the Australian Broadcasting Commission as a body corporate. Its functions are to provide and to broadcast or televise from transmitting stations made available by the Postmaster-General, adequate and comprehensive programmes and to take, in the interests of the community, all such measures as, in its opinion, are conducive to the full development of suitable broadcasting and television programmes (s. 59 (1)). Where it considers it necessary for the proper carrying out of its objects or for any purpose incidental thereto, the Commission may make arrangements for the holding of, or may organize or subsidize, any public concert or other public entertainment provided the whole or part of that concert or entertainment is broadcast or televised or the concert or entertainment is held in co-operation with an educational, religious, or other non-commercial institution and no charge for admission is made by the Commission (s. 59 (2)). For the purpose of the exercise of its powers and functions under the Act, the Commission is empowered to compile, prepare, issue, circulate and distribute, whether gratis or otherwise, in such manner as it thinks fit, such papers, magazines, periodicals, books, pamphlets, circulars and other literary matter as it thinks fit (s. 60). Section 63 (1) requires it to provide such studios, offices and other accommodation as are necessary for the proper performance of its powers and functions and such accommodation in relation to the studios as the Postmaster-General requires for the proper carrying out by him of the technical services which he is to provide. Section 66 directs the Commission to broadcast daily regular news sessions and to employ an adequate staff to collect the material for those broadcasts. And, by s. 67, it is to "endeavour to establish and utilize, in such manner as it thinks desirable in order to confer the greatest benefit on broadcasting or television, groups of musicians for the rendition of orchestral, choral and band music of high quality". Under Div. 5 of the Act the Postmaster-General is required to provide and operate transmitting stations and the necessary equipment for the purposes of transmitting the Commission's broadcasting and television programmes.

[59]

The land with which this case is concerned was situated in an area in respect of which a planning scheme was in course of preparation and an Interim Development Order in relation to that area had been made before the notice of acquisition was published. The effect of cl. 32 (1) of the Order when read with a "Planning Map" to which the clause refers and with the Table appended to that clause was that the plaintiff's land was deemed to be reserved for the purpose of "Open Space - public proposed", a description which may be compared with "Open Space - public existing" which the Table designated as the purpose for which another parcel of land was deemed to be reserved. Clause 33 of the Order provides that reserved land may be used for the purpose for which it was lawfully used immediately before the commencing date of the Order or for any purpose for which it is deemed to be reserved under cl. 32. The Order contains no definition of "Open Space". By reason then of the planning legislation and the Interim Order made under it, the plaintiff's land was, when the notice of acquisition was published, deemed to be reserved for the purpose of an "Open Space - public proposed" and this meant that if and when a planning scheme was finally adopted and put into operation the land might be made available as a public "Open Space" which, I will assume for the purposes of the argument, means a public park or public recreational area. But s. 6 (2) of the Lands Acquisition Act speaks of land "which is dedicated or reserved, or is vested in trustees, as a public park or otherwise for the purposes of public recreation" and these are words which, in my opinion, refer to land which at the date of the proposed acquisition is reserved or dedicated or vested in trustees and is then being used as a park or for public recreational purposes. They are not apt to include land which at the date of notice of acquisition is not being so used but which may in certain events be put to such a use in the future. Counsel sought to support his submission by referring to the definition of land in the Lands Acquisition Act 1906. That definition had the effect of preventing the acquisition by the Commonwealth of "public parks vested in or under the control of municipal or local authorities and dedicated to or reserved for the recreation of the public or such other lands dedicated to or reserved for the use and enjoyment of the people as have been specified by Proclamation". He submitted that the draftsman of s. 6 (2) departed from the language of the earlier provision for the purpose of imposing a further limitation upon the power of the Commonwealth to acquire land. Since 1906 town planning had, as he pointed out, become a recognized feature of State legislation and s. 6 (2) was, he contended, drawn in light of that fact with the intention of preventing the acquisition not only of public parks and other public recreational areas dedicated or reserved or vested in trustees for those purposes and used as such but also to prevent the acquisition of land which under Town Planning legislation in the various States was reserved under interim planning schemes for possible future use for those purposes. I can find nothing in the legislative history of the provision to support counsel's submission.

[62]

The final matter to be determined is whether the constitutional power in s. 51 (v.) of the Constitution to make laws with respect to "Postal, telegraphic, telephonic, and other like services" enables the Parliament to set up the Australian Broadcasting Commission with the functions of preparing broadcasting and television programmes and transmitting them to listeners and viewers. Counsel for the plaintiff did not suggest that the provision of broadcasting facilities, that is to say the provision of the technical apparatus whereby "messages" in the form of words or sounds may be transmitted to listeners is not another "like" service within the meaning of s. 51 (v.) of the Constitution. In the light of the decision of this Court in R. v. Brislan; Ex parte Williams [1] , an argument to the contrary could not be sustained. And counsel agreed, and properly so, that television - the transmission of "messages" in pictorial form - stood in no different position to the broadcasting of words or sounds. He contended, however, that while the Constitution enabled the Parliament to make laws for the provision of the necessary mechanical and technical apparatus by which broadcast and television "messages" may be transmitted, it could not enact a law creating a body such as the Australian Broadcasting Commission with the function of preparing such "messages" and transmitting them to recipients. Postal, telegraphic and telephonic services are services by means of which individuals may communicate with one another. The Parliament could not, he argued, lawfully provide that all postal matter, telegrams or telephone messages should be composed and despatched only by a person or corporation set up by it for that purpose and could not deny to members of the public the right to avail themselves of the facilities provided for the despatch of postal, telegraphic and telephonic matter. It is only "services" that can be provided and, while the Commonwealth may use those services to despatch its own messages and receive those sent to it, the only services which s. 51 (v.) permits to be established are those which are available for use by members of the public for the sending of communications and for their receipt. It may be that this is so in the case of a "service" such as the postal service. I express no opinion on the point. But if it is, it is because such a service is one which, according to the common understanding of mankind, has always been regarded as providing a means by which individual communications may be made between one person and another. But in this respect a broadcasting or television service differs from a postal, telegraphic or telephonic service and it was for this reason that Dixon J. (as he then was) dissented in Brislan's Case [1] . As his Honour pointed out: "Broadcasting provides a means by which those who secure for themselves an appropriate receiving set may hear speeches, music, entertainments, announcements and the like, addressed to the public at large from some central point. There is no inter-communication; no means is provided by which one individual can originate a message or establish communication with another; there is nothing to satisfy the purpose for which any of the enumerated services exist" [2] . The question that arose for decision in that case was not identical with that which arises in the present case. But it is, I think, significant that at the time when Brislan's Case [1] was decided the Australian Broadcasting Commission had been established for the purpose of providing programmes and broadcasting them from national broadcasting stations made available to it by the Commonwealth and that, in all relevant respects, the Commission's functions with regard to broadcasting were the same then as those which it is required to perform under the present Act. The "service" that was there under consideration was one which operated in the same fashion as it does now. It included the preparation and transmission of programmes by persons or bodies authorized to perform those functions. And this is a recognized feature of broadcasting and television services throughout the world. Sometimes the preparation and transmission of the material is done by the Government of the country concerned, sometimes it is entrusted to a body set up by law for that purpose, sometimes to a commercial enterprise licensed to perform that function. With this in mind I can see no reason why the constitutional power to make laws with respect to broadcasting and television services in Australia should be limited in the way suggested. To hold that the only power exercisable by the Commonwealth is to provide the technical apparatus for transmission would be to take an unduly narrow view of the powers conferred by s. 51 (v.). In my opinion a law establishing an authority with the functions of producing broadcasting and television programmes and transmitting them is a law with respect to broadcasting and television services.

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Judgment (63 paragraphs)

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