Miller v TCN Channel Nine Pty Ltd

Miller v TCN Channel Nine Pty Ltd - [1986] HCA 60 - HCA 1986 case summary — Zoe

[12]

The prohibition of the establishment and erection of a station stands in a different situation. It has been held that a restriction on the manufacture of a commodity intended for use exclusively in interstate trade does not infringe s. 92: Beal v. Marrickville Margarine Pty. Ltd. [9] , followingGrannall v. Marrickville Margarine Pty. Ltd. [10] . The reason for those decisions was that manufacture, although an essential preliminary condition to interstate trade in the commodity manufactured, forms no part of that trade; it precedes it and is outside the freedom conferred by s. 92, see Grannall [11] ; Beal [12] . On the same principle, prohibition of the importation from abroad of an aircraft intended for use in interstate trade does not infringe s. 92: Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd. [13] ; Ansett Transport Industries (Operations) Pty. Ltd. v. The Commonwealth [14] . Similarly, quotas, or a tax, on hens kept for the production of eggs intended to be sold in the course of interstate trade do not infringe s. 92: Bartter's Farms Pty. Ltd. v. Todd [15] ; Damjanovic & Sons Pty. Ltd. v. The Commonwealth [16] . No doubt the prohibition or restriction of the manufacture, production or importation of something to be used in the course of interstate trade would have a practical effect, and a seriously adverse one, on the proposed trade but those authorities establish that that is not enough to attract the protection of s. 92 to activities which are anterior to the interstate trade and which do not form an inseparable concomitant of it. It is true that the distinction between something which is an inseparable concomitant of interstate trade and something which precedes it may in some cases be difficult to draw. However the distinction is a real one and it is well recognized in the authorities. I find it impossible to distinguish the manufacture, production and importation of goods intended for use in interstate trade, commerce or intercourse on the one hand from the erection of a wireless telegraphy station also intended for such use on the other. The erection of the station, like the manufacture, production or importation of the goods, precedes the interstate trade, commerce or intercourse and is not a concomitant of it. The line to be drawn may be a fine one but the distinction is soundly drawn. It is well accepted that words of the Constitution which confer power should not be narrowly construed, but that does not mean that the words of s. 92, which restrict power, should be given an expanded meaning with the consequence that activities which themselves do not answer the description of trade, commerce or intercourse among the States and are not inseparable concomitants thereof should be placed outside the capacity of any legislature to prohibit or restrict except in a manner that could be justified as regulatory. I conclude that a prohibition of the unauthorized establishment or erection of a station, if it stood alone in the Act, would not be rendered invalid by reason of s. 92.

[18]

The final question that remains is whether it is possible to sever the provisions which prohibit the unauthorized establishment and erection of stations (which by themselves would be valid) from the remaining provisions of the Act, some of which are invalid. This is a question on which I have experienced considerable difficulty. It will be observed that the prohibitions effected by s. 6 all form part of one connected provision. The breach of any one of those prohibitions results in the forfeiture of any appliance erected, maintained or used in contravention of the Act: s. 7(1). Section 6 may be regarded as simply giving effect to the provisions of s. 4 which gives the Minister the exclusive privilege of establishing, erecting, maintaining and using stations for the purpose (inter alia) of transmitting messages by wireless telegraphy within Australia and receiving messages so transmitted. Nevertheless if the reference to maintenance and use is removed from s. 6 the effect of the remaining provisions is exactly the same. Section 15A of the Acts Interpretation Act 1901 Cth, as amended, establishes "a presumption in favour of the independence, one from another, of the various provisions of an enactment, to which effect should be given unless some positive indication of interdependence appears from the text, context, content or subject-matter of the provisions": Fraser Henleins Pty. Ltd. v. Cody [21] ; Australian National Airways Pty. Ltd. v. The Commonwealth [22] . Section 6 prohibits a number of activities which are separately described, and its operation and effect upon the activities to which it can validly apply (establishment and erection) would be unchanged if the reference to the other activities (maintenance and use) were excised; in these circumstances there is no difficulty in separating the good from the bad: see R. v. Poole; Ex parte Henry [No. 2] [23] ; Pidoto v. Victoria [24] . Moreover, there is nothing in the Act that indicates an intention that the whole of its provisions should fail if any part of them should fail. There would be nothing surprising in an intention to prohibit the unauthorized establishment and erection of a station, even if the prohibition of its use and maintenance should prove ineffective. In my opinion effect should be given to the presumption that the legislature intended to prohibit the unauthorized establishment or erection of stations even if it could not prohibit their maintenance or use in the manner in which it has attempted to do. Indeed the substantial purpose of the Act will be achieved, in most cases at least, if the prohibition of establishment and erection is valid.

[131]

The first limb of the argument is capable of raising substantial questions touching the operation of s. 92. However, I do not find it necessary to enter upon a consideration of those questions because, in my view, the proper construction of s. 6(1)(a) of the Act serves to distinguish the cases relied upon by the informant and the interveners and to determine the matter in favour of the defendant. I say that because of the emphasis that s. 6(1) expressly places upon the stated purpose. This is a feature which distinguishes the law under consideration in this case from the legislation which formed the subject of Grannall's Case and the cases which followed in its train. Paragraph (b) of the sub-section forbids the transmission or reception, without authority, of messages by wireless telegraphy while par. (a) provides that without authority no person shall establish, erect, maintain, or use any station or appliance for that purpose. The sub-section is concerned solely with the stated purpose, namely, the actual trade, commerce or intercourse encompassed in the transmission and reception of messages. While par. (b) is addressed expressly to that subject, par. (a) deals comprehensively with the means by which the activity is carried on. Those means range from the establishment and erection of the facility to its maintenance and use for the central purpose. The emphasis upon that central purpose has the effect of binding into a unity the activities that are described by the verbs contained in par. (a). They are the means by which the trade, commerce or intercourse is actually carried on, that is to say by which the purpose is achieved. It follows, in my opinion, that they are inseverable from each other. The result is that if any one of those activities attracts the freedom of which s. 92 speaks, then that freedom extends to each of the other activities. To ban, save under licence, the use of a station for the purpose of engaging in interstate trade, commerce or intercourse would clearly offend s. 92 unless the impediment was no more than regulatory in nature and compatible with the freedom envisaged by the Constitution. It would attribute a capricious intention to the Parliament to construe the paragraph as inoperative in its purported application to the use of a station for the purpose of engaging in interstate trade, commerce or intercourse but fully operative in its application to the establishment, erection or maintenance of the facility for that same purpose. In such a case, s. 15A of the Acts Interpretation Act 1901 Cth, as amended, could not avail the informant. The manner in which that section operates is fully discussed in Strickland v. Rocla Concrete Pipes Ltd. [6] . The intention of the legislature, determined in the light of its provisions read as including s. 15A, is to prevail.

[162]

is to reverse the presumption that a statute is to operate as a whole, so that the intention of the legislature is to be taken prima facie to be that the enactment should be divisible and that any parts found constitutionally unobjectionable should be carried into effect independently of those which fail. To displace the application of this new presumption to any given situation arising under the statute by reason of the invalidation of part, it must sufficiently appear that the invalid provision forms part of an inseparable context. To give effect to s. 15A, it is not sufficient merely to identify particular words or phrases which import invalidity and to construe the statute as though those words or phrases were struck out. The critical consideration is not the grammatical structure of an impugned law but the legislature's intention to maintain the valid operation expressed in some of the law's words or phrases despite the invalidity of its operation in respects which flow from other words or phrases. In Cam & Sons Pty. Ltd. v. Chief Secretary of N.S.W. [24] , the majority of this Court said: It has of course been held repeatedly that an enactment which would be invalid if given a full operation according to its terms cannot be saved by the application of a general reading-down provision such as is found in s. 15A of the Acts Interpretation Act 1901-1950 Cth if a positive indication appears in the enactment that the legislature intended it to have either a full and complete operation or none at all. The legislature's intention must be ascertained by reference to the terms of the law and its subject-matter. There are two steps in the construction of s. 6(1) of the Act to which s. 15A might apply. The first step relates to the prohibition on use of a station for the prescribed purpose. If the prohibition could have no valid operation upon the use of a station in interstate trade, commerce or intercourse, would it nevertheless operate upon its use in intrastate trade, commerce or intercourse? The second step relates to the prohibitions on establishing, erecting and maintaining a station for the prescribed purpose. If the prohibition relating to use is wholly invalid, do the other prohibitions operate validly and independently? As to the first step, the relevant provisions of the Act prohibit the unauthorized use of any station for the purpose of transmitting or receiving messages by means of wireless telegraphy and the unauthorized transmission or reception of messages by wireless telegraphy. If these prohibitions could not be maintained in their entirety, there would be little point in maintaining a prohibition limited to the unauthorized transmission and reception of intrastate wireless messages and the unauthorized use of a station for that purpose. A complete prohibition on such transmission, reception and use of stations without authority is essential if there is to be effective control of the radio frequency spectrum. It would be futile to attempt to control the spectrum if there were no inhibition on the use of radio frequencies for the transmission and receipt of interstate messages. To read down the general prohibitions on unauthorized use of a station and on unauthorized transmission and reception of wireless messages so that they applied only to activities in intrastate trade, commerce and intercourse would entirely subvert the purpose and effect of those prohibitions. The intention to be attributed to the Parliament is that there should be "a full and complete operation or none at all". That takes us to the second step. 1. (1948) 76 C.L.R. 1, at p. 371. 2. (1951) 84 C.L.R. 442, at p. 454.

[163]

Does it matter that the provisions of s. 6(1)(a) in relation to use and of s. 6(1)(b) might be invalid if the provisions in relation to erection and maintenance can be given an independent operation? There is no difficulty in grammatically severing the words "establish, erect, maintain" from the word "use" in s. 6(1)(a) of the Act. If s. 6(1)(a) prohibited the mere establishment, erection and maintenance of a station, those prohibitions could be severed from the other prohibitions contained in s. 6(1) so that, irrespective of any invalidity affecting the latter prohibitions, the former prohibitions might be held to have an independent and valid operation. But s. 6(1)(a) prohibits establishment, erection and maintenance of a station only if those respective acts are done "for the purpose of transmitting or receiving messages by means of wireless telegraphy". The relevant prohibitions are not intended to operate independently of the prohibition against unauthorized transmission and reception of wireless messages. If unauthorized transmission or reception of wireless messages could not validly be prohibited, it seems unlikely that the Parliament would intend to prohibit the erection and maintenance of a station to be used for that purpose. Rather, the terms of s. 6(1)(a) show that the policy of that provision is to prohibit the taking of steps towards the unauthorized transmission or reception of wireless messages. That policy would be frustrated if the unauthorized transmission and reception of messages are lawful. If the unauthorized transmission and reception of wireless messages were lawful, the relevant prohibitions would lose their raison d'être. To construe s. 6(1) as prohibiting the doing of acts for a lawful purpose when those acts are not harmful in themselves would be to attribute an absurd intention to the Parliament. It follows that, in my opinion, the validity of the operation of the provisions of s. 6(1)(a) relating to establishment, erection and maintenance are not saved by s. 15A if the provision relating to use and the provisions of s. 6(1)(b) are invalid. I therefore turn to examine the validity of the latter provisions.

[165]

[Section 92] creates freedom for participation in activities of the specified descriptions within a community organized by law; and it therefore presupposes laws of the kind which may be described as circumscribing an individual's latitude of conduct in the interests of fitting him into a neighbourhood - a society, membership of which entails, because of its nature, acts and forbearances on the part of each by which room is allowed for the reasonable enjoyment by each other of his own position in the same society. The great purpose of s. 92, as Windeyer J. said in Damjanovic & Sons Pty. Ltd. v. The Commonwealth [27] , is "to ensure the unity of Australia in an economic sense and to prevent that unity being broken by and at State boundaries". A provision which is intended to ensure the bonding of a nation ought not be construed as excluding laws essential alike to its peace, order and good government in general and to the orderly conduct of trade, commerce and intercourse among the States in particular. I respectfully adopt without repeating what Stephen J. said in Permewan Wright Consolidated Pty. Ltd. v. Trewhitt [28] , as to the qualification in the interests of the community at large of the freedom guaranteed to interstate traders by s. 92, acknowledging, as his Honour said [29] , that "there exists a tension between the constitutionally declared freedom of interstate trade and the need of governments to legislate in aid of what they perceive to be the public interest ". The laws which are consistent with s. 92 as circumscribing an individual's latitude of conduct in order to fit him into a neighbourhood are described as regulatory in order to distinguish them from laws which impermissibly burden or obstruct interstate trade, commerce and intercourse. "Regulation" is not a criterion of validity but a term used to describe laws which do not infringe the freedom guaranteed by s. 92. The character of a regulatory law is described - I do not say defined - by Dixon C.J., McTiernan and Webb JJ. in Hughes and Vale Pty. Ltd. v. New South Wales [No. 2] [30] : no real detraction from the freedom of inter-State trade can be suffered by submitting to directions for the orderly and proper conduct of commercial dealings or other transactions or activities, at all events if the directions are both relevant and reasonable and place inter-State transactions under no greater disadvantage than that borne by transactions confined to the State. 1. (1961) 106 C.L.R. 406, at p. 415. 2. (1967) 116 C.L.R. 1, at p. 20. 3. (1968) 117 C.L.R. 390, at p. 406. 4. (1979) 145 C.L.R. 1, at p. 26. 5. (1979) 145 C.L.R., at p. 21. 6. (1955) 93 C.L.R. 127, at p. 160.

[189]

Since the decisions in Hughes and Vale Pty. Ltd. v. New South Wales [42] and Hughes & Vale Pty. Ltd. v. New South Wales [No. 2] [43] it has been settled law that a statutory provision which forbids a person to carry on an ordinary trade without a licence, and gives the licensing authority an uncontrolled discretion to refuse to grant a licence, cannot validly apply to interstate trade, by reason of s. 92 of the Constitution. In Boyd v. Carah Coaches, a State law providing for the licensing of travel agents was held to be inconsistent with s. 92 on the ground that the discretion to refuse a licence was too wide. To identify that as the ground of invalidity in that case subsumes two distinct lines of reasoning which appear in the judgments. Both lines led to the conclusion of invalidity in that case, but they require separate consideration in this case. The first line of reasoning was that the width of the discretion precluded the view that the law was regulatory - "nothing but a reasonable regulation of interstate trade". That was the line of reasoning of Gibbs J. [44] . The second line of reasoning was that the law was of a regulatory character but the width of the discretion enabled the licensing authority "to refuse a licence on arbitrary and unspecified grounds which are quite obnoxious to the concept of freedom of interstate trade embodied in s. 92". That was the line of reasoning of Mason J. [45] . The distinction between the two lines of reasoning is of importance in this case because if the width of the discretion conferred by s. 5 of the Act denies a regulatory character to the rationing scheme created by ss. 4, 5 and 6 of the Act, the prohibitions against the unauthorized use of a station for that purpose fall squarely within the principle stated by Gibbs J. and must be held invalid. On the other hand, if the scheme is regulatory, the width of the discretion will invalidate the scheme only if the Minister is purportedly empowered to refuse a licence on grounds obnoxious to the freedom guaranteed by s. 92. 1. (1979) 145 C.L.R. 78, at p. 84. 2. (1954) 93 C.L.R. 1. 3. (1955) 93 C.L.R. 127. 4. (1979) 145 C.L.R., at p. 85. 5. (1979) 145 C.L.R., at pp. 93, 97.

[191]

The fact that a statute in terms prohibits a person from entering without a licence into transactions which constitute the carrying on of interstate trade and commerce is not in itself enough to establish a contravention of s. 92. If the prohibition is an element in a regulatory licensing scheme which leaves the trader free to carry on his interstate trade so long as he conforms to requirements prescribed so as to ensure a reasonable regulation of the trade for the protection of the public, there is no contravention of s. 92: S.O.S. (Mowbray) Pty. Ltd. v. Mead [50] ; North Eastern Dairy Co. Ltd. v. Dairy Industry Authority of N.S.W. [51] . The freedom to carry on interstate trade guaranteed by s. 92 is the freedom enjoyed when any applicable regulatory law has been complied with. The passages in the cases to which his Honour refers dealt with the reasonable regulation of trade to protect the community "from many hazards such as health, nutrition, inimical and fraudulent practices in trade and the like": per Barwick C.J. in S.O.S. (Mowbray) [50] . However, as Mason J. pointed out in North Eastern Dairy [53] : There is, of course, no reason why the class of regulation consistent with the section should be limited to laws the effect of which is to protect public health. There are many other fields in which interstate trade may be regulated in the interests of the public in conformity with s. 92. The regulatory character of an impugned law is to be judged by reference chiefly to the interests of the community at large, though the operation of the law upon the activities and transactions into which an individual may enter is a relevant factor. The greater significance of community interests flows from the predominantly public character of s. 92, as Mason J. pointed out in Permewan Wright [54] : It is because the section has this predominant public character that it is to be readily understood as presupposing a society in which conduct is regulated in the interests of the community, rather than a society in which conduct is merely regulated in the interests of those engaged in trade (the North Eastern Dairy Case [51] . 1. (1986) 161 C.L.R. 60, at p. 68. 2. (1976) 135 C.L.R., at pp. 153-154. 3. (1955) 93 C.L.R., at p. 166. 4. (1979) 145 C.L.R., at p. 92. 5. (1972) 124 C.L.R., at p. 544. 6. (1975) 134 C.L.R. 559, at pp. 600-601, 607-608, 615-616, 634. 7. (1972) 124 C.L.R., at p. 544. 8. (1975) 134 C.L.R., at p. 615. 9. (1979) 145 C.L.R., at p. 36. 10. (1975) 134 C.L.R. 559, at pp. 600-601, 607-608, 615-616, 634.

[200]

Sec. 98 of the Act calls for special notice: it forbids and makes it an offence subject to specified exceptions to send or carry a letter for reward otherwise than by post. As this provision applies to inter-State as well as intra-State correspondence, it is in one sense a limitation on freedom of intercourse, assuming that term to include correspondence and it may thus be regarded as an interference with trade. Whether that is so or not, it is however a limitation notoriously existing in ordinary usage in all modern civilized communities; it does not impede freedom of correspondence, but merely as it were, canalizes its course just as "free speech" is limited by well known rules of law. Very much the same is true of the Wireless Telegraph Act 1905. Although s. 4 of the Act suggests that there should be a State monopoly of wireless telegraphy services, s. 5 contains a general power to authorize other persons to provide such services. That power has been exercised so that approximately 481,700 radio-communication licences had been issued under the Act at 31 December 1983, 137,000 in New South Wales alone. If the Act had in truth created a Commonwealth monopoly of wireless telegraphy services, it may have been necessary to consider the present authority of the views expressed by the Privy Council in the passages to which I have referred and perhaps the authority of cases which, following the Privy Council's judgments in James v. The Commonwealth and the Banking Case, have found in s. 92 an obstacle to the validity of Commonwealth monopolies or at least to Commonwealth monopolies which are an integral feature of national schemes for organized marketing. Construing ss. 4, 5 and 6 of the Act together, however, the Act does not create a monopoly; it creates a licensing scheme which empowers the Minister to apportion among Commonwealth instrumentalities on the one hand and individual users on the other rights to use particular radio frequencies. The Act reposes in the Minister a discretionary power to control the use of the radio frequency spectrum, not a simple prohibition against use. 1. (1949) 79 C.L.R. 497, at pp. 640-641; [1950] A.C. 235, at p. 311. 2. (1936) 55 C.L.R. 1; [1936] A.C. 578. 3. (1936) 55 C.L.R., at p. 54; [1936] A.C., at pp. 625-626.

[203]

What manner of exercise of the discretion would be obnoxious to the freedom guaranteed by s. 92? The answer must conform to the criteria by reference to which the consistency of a statute with s. 92 is to be determined. As I agree, for reasons earlier stated, that the permissible scope of regulatory laws should be stated in terms of the interests of the community, I would adapt the language of Mason J. in Perre v. Pollitt [63] , to describe one of the criteria governing the validity of a licensing discretion. In that case, his Honour held the provision conferring the discretion to be invalid because the discretion was "so wide and general as to enable [the licensing authority] to refuse an application for reasons divorced from the protection of the public and the advancement of the public interest". His Honour was not there purporting to define a criterion but those words accord with one of the indicia of invalidity expressed in Permewan Wright [64] . The other criterion is whether the discretion is so wide as to enable the Minister to refuse a licence by reference to the essential qualities connoted by the phrase "trade, commerce, and intercourse among the States". This criterion does not look to the consequential effect of a refusal on trade, commerce and intercourse among the States: it is concerned with the ground by reference to which a decision to refuse a licence is made. If an element which would bring an activity or transaction within the connotation of the phrase can be a ground of refusal, the discretion is too wide. A licence to transmit or receive wireless messages between points on different sides of a State border may be refused, but not because those points are on different sides of a State border. The discretion cannot be used to discriminate against interstate trade, commerce and intercourse. If the Minister were enabled to refuse a licence either for reasons divorced from protection of the public or advancement of the public interest or to discriminate against interstate trade, commerce and intercourse, the discretion conferred on the Minister by s. 5 would be too wide.

[206]

The reason for leaving the ambit of the discretion undefined may be that legislative foresight cannot trust itself to formulate in advance standards that will prove apt and sufficient in all the infinite variety of facts which may present themselves. On the other hand, it may be because no general principles or policy for governing the particular matter it is desired to control are discoverable, or, if discovered, command general agreement. The facts fit the theory. Paragraph 11 of the stated case reveals the policy affecting the issue of licences: An applicant for a radiocommunications service under the Wireless Telegraphy Act 1905 will be licensed, subject to appropriate technical and operating conditions, except where - frequencies are not available, or there is a potential detriment to the radio frequency spectrum, or there is a potential detriment to the public interest in the sense that public safety is prejudiced or manifestly unlawful activities are facilitated. The reference to "potential detriment to the radio frequency spectrum" shows that there is difficulty in formulating precise criteria governing the issue of licences. And as the rationing of a resource that is insufficient to satisfy all those who wish to use it must result in allocating something to some and nothing to others, an equitable scheme must leave to the administrator an opportunity to consider the relevant claims of all who apply and of all who might be expected to apply in the future. Although guidelines may be prescribed, in the result the discretion must remain at large. So it is under s. 5. Yet the s. 5 discretion must be exercised bona fide in furtherance of the purpose for which it was given. Of necessity, the area of the discretion must be large: the nature of the subject to be regulated requires that the discretion be wide. But it is not so wide that considerations foreign to the purpose for which the discretion is conferred can be taken into account. Nor can the discretion be exercised to discriminate against interstate trade, commerce and intercourse. That is because a discretion must be exercised by the repository of a power in accordance with any applicable law, including s. 92, and, in the absence of a contrary indication, "wide general words conferring executive and administrative powers should be read as subject to s. 92": per Dixon, McTiernan and Fullagar JJ. in Wilcox Mofflin Ltd. v. New South Wales [2] . In Inglis v. Moore [No. 2] [3] St. John J. and I stated the relevant rule of construction: where a discretion, though granted in general terms, can lawfully be exercised only if certain limits are observed, the grant of the discretionary power is construed as confining the exercise of the discretion within those limits. If the exercise of the discretion so qualified lies within the constitutional power and is judicially examinable, the provision conferring the discretion is valid. There is nothing in the context of s. 5 which would exclude this rule of construction. Being bound to exercise the discretion reposed in him consistently with s. 92, the Minister cannot lawfully refuse a licence on the ground that an applicant wishes to engage in interstate trade, commerce or intercourse. 1. (1937) 56 C.L.R. 746, at p. 757. 2. (1952) 85 C.L.R. 488, at p. 522. 3. (1979) 46 F.L.R. 470, at p. 476.

[214]

If it be necessary to illustrate the difficulty in comprehending precisely what the cases stretching over more than three-quarters of a century have established about the true nature and scope of s. 92, it should suffice to refer to the two comparatively recent cases in the Court concerning the validity of the Wheat Stabilization Scheme ("the Scheme") which had been established by complementary Commonwealth (the Wheat Industry Stabilization Act 1974 Cth) and State legislation. Those two cases are Clark King & Co. Pty. Ltd. v. Australian Wheat Board [7] and Uebergang v. Australian Wheat Board [8] . In the Clark King Case, the divergence of views among the five justices who comprised the Court was such that no line of reasoning enjoyed majority support. As between the particular parties, there was a decision by three justices that the scheme did not infringe the prescription of s. 92 in its application to wheat the subject of interstate trade. Beyond that, the case lacked authority for the reason that, as Aickin J. pointed out in Uebergang , the decision of the majority lacked any ratio enjoying majority support: cf. Amalgamated Clothing and Allied Trades Union of Australia v. D. E. Arnall & Sons; In re American Dry Cleaning Co. [9] . In Uebergang , when the guidance of the Court was sought about what (if any) evidence of factual material might be decisive on the hearing of a renewed challenge, based on s. 92, to the validity of some of the legislation establishing the scheme, the Court was again unable to speak with true authority. Two Justices held that no such evidence could be in point since the validity of the scheme in its application to interstate trade and commerce could be determined in the abstract. Of those two Justices, one (Barwick C.J.) thought that the scheme was plainly invalid by reason of the provisions of s. 92; the other (Murphy J.) thought that it was plainly valid. The remaining five Justices held that factual material would or could be decisive of validity. There was, however, deep division between them about what such evidence might be relevant to prove. Two (Stephen and Mason JJ.) were of the view that it would suffice to establish that the impugned legislation was consistent with s. 92 if the factual material persuaded the Court that the restrictions which the legislation imposed upon interstate trade were no greater than was reasonably necessary in all the circumstances, due regard being had to the public interest. The other three Justices (Gibbs, Aickin and Wilson JJ.) expressly rejected that view. They concluded that factual material would be unavailing to bring the scheme within the area of possible validity unless it positively established that a monopoly covering both interstate and intrastate trade in wheat was the only practical and reasonable course open in the then circumstances. Even between those three Justices, there were significant differences in approach; in particular, Aickin J. [10] came very close to sharing, while Gibbs and Wilson JJ. (in a joint judgment) expressly disavowed [11] , the incredulity expressed by Barwick C.J. in Clark King [12] about the possibility that the creation of a monopoly (extending to interstate trade and commerce) in a State or Commonwealth agency might, in some circumstances, be justified as consistent with s. 92: cf. The Commonwealth v. Bank of N.S.W. [13] . To resolve the judicial impasse about the practical relevance of factual material, each of the two members of the Court who were of the view that evidence of factual material would be unavailing on the question of validity indicated which of the competing conclusions of the other justices was the less unattractive to him. Barwick C.J., who had denounced [14] the proposition that evidence might possibly establish the validity of the scheme as involving "inherent falsity", lent his support to the conclusion of Gibbs, Aickin and Wilson JJ. Murphy J., who held that the scheme did not even come within the area of operation of s. 92, lent his support to the conclusion of Stephen and Mason JJ. The result was that there was a decision between the parties on the question asked. As in Clark King, however, there was no line of reasoning which enjoyed majority support. There was no authoritative ratio of the decision in the case.

[217]

In these circumstances, few would deny that, somewhere along the line, things have gone wrong. The simple words of s. 92 have, in an unsuccessful search for certainty in the law, been overlaid by formulae which have given rise to many problems while solving almost none. The section was, plainly enough, intended to serve the essential function of reinforcing the economic and social unity of an emerging nation by removing the barriers to commerce, trade and intercourse which the frontiers between the federating colonies had previously represented. It has been converted into a form of constitutional guarantee of the economics of laissez-faire and the politics of "small government". The importance of the notion of "freedom as at the frontier" which was recognized even in James v. The Commonwealth [16] as lying at the heart of s. 92 has been progressively discounted and disregarded. In the result, interstate trade, commerce and intercourse has been placed in a position of significant and preferential immunity from non-discriminatory laws which the courts have, for reasons which still await currently authoritative identification, judged to be inconsistent with s. 92. Where s. 92 has been held to preclude the application of such non-discriminatory laws to interstate trade and commerce leaving them to apply to intrastate trade and commerce, the section, which was intended to preclude inequality between the treatment of the trade and commerce of the interstate trader and the treatment of the trade and commerce of the local trader, has become an actual source of such inequality of treatment to the detriment of the local trader. Indeed, the importance of the discrimination of which the section has been made the cause is underlined by the accounts, in the Commonwealth Law Reports, of the expenditure of time and money in attempts - sometimes successful and sometimes unsuccessful - to attract to what would otherwise be local trade and commerce the competitive advantages which would flow from a conversion into interstate trade and commerce. In cases where laws which were non-discriminatory as enacted have been made discriminatory by reason of the fact that s. 92 has had the effect that intrastate trade and commerce alone remain subjected to them, a section which was adopted as a guarantee of unity and equality under the federation has been converted into a source of unfair and potentially divisive preference.

[218]

A broad submission was advanced in the course of argument to the effect that the impugned provisions of the (now repealed) Wireless Telegraphy Act 1905 Cth ("the Act") were not within the area of operation of the prohibition of s. 92 for the reason that that prohibition applies only in relation to fiscal burdens. That submission was not developed by argument. It was plainly directed to Murphy J. who has made clear, in Uebergang and other cases, his acceptance of that view of the purpose and operation of s. 92. Otherwise, it has not been sought by either side to make the present case an occasion for challenging existing authority. Indeed, the Solicitor-General for the Commonwealth, who presented the main argument on behalf of the informant, expressly indicated that he was not concerned to launch a general attack on the "formula" enunciated by Dixon C.J. in Hospital Provident Fund Pty. Ltd. v. Victoria [17] upon which the defendant primarily relied. That being so, the present case does not seem to me to provide the occasion for considering whether the difficulties in the current state of authority about the nature and scope of s. 92 are such as to make it incumbent upon the Court yet again to embark upon a consideration of fundamental questions which so many past cases have failed satisfactorily to resolve. It follows that I shall seek to consider the present case on the basis of my understanding of current authority and leave for another day the question of the extent (if at all) to which that authority should be reopened and reviewed. When that question does arise for consideration by the Court as a whole, it will be relevant to bear in mind that the difficulties of ascertaining the purposes of executive action and government policy, which were no doubt seen as supporting a need for precise tests formulated in terms of the objective operation of laws, have been substantially alleviated in many areas by the availability of procedures for the examination and review of the reasons of administrative decision-makers.

[221]

If the Hospital Provident Fund Case test could be viewed in isolation, I should have thought that it would have plainly encompassed the relevant operation of s. 6(1)(a) (and the associated provisions of ss. 4, 5 and 7(1)) of the Act the validity of which is challenged in the present case. Section 6(1)(a) did not prohibit the erection or maintenance of a "station" simpliciter. It applied, according to its terms, to prohibit and penalize the erection or maintenance of a station only by reference to or in consequence of the existence of "the purpose of transmitting or receiving messages by means of wireless telegraphy". It is common ground that the purpose for which the defendant's station at Somersby was erected and maintained (and actually used) was the transmission of messages as a link in a chain of communication stretching from Sydney to Brisbane and that such transmission of messages constituted an integral part of interstate trade, commerce and intercourse. The purpose of transmitting messages by means of wireless telegraphy would, as a matter of plain common sense, seem to be a fact or thing which is an essential attribute or concomitant of the trade, commerce or intercourse of so transmitting messages in the sense that without it you cannot bring into being that particular example of trade, commerce or intercourse among the States. Put in the precise words of the Hospital Provident Fund formula, the relevant operation of s. 6(1)(a) was to take "a fact or a thing itself forming an essential attribute" of trade, commerce or intercourse and to proceed "by reference thereto or in consequence thereof, to impose" the restriction constituted by the prohibition of erection or maintenance and the liability or burden of the statutory consequences of its breach. That being so, the effect of the application of that formula, viewed in isolation, would be that the restriction and the liability or burden which the relevant operation of s. 6(1)(a) (and the consequential provisions of s. 7(1)) imposed by reference to the purpose of transmitting messages was "direct or immediate in its operation or application" to the defendant's interstate trade, commerce or intercourse of which that purpose was an essential attribute.

[222]

In truth, of course, the Hospital Provident Fund Case test cannot be viewed in isolation. The notion that such a formularized and formalized criterion of operation can be substituted for the substance of the words of s. 92 has not been accepted by a majority of the Court at least since North Eastern Dairy Co. Ltd. v. Dairy Industry Authority of N.S.W. [20] . In some respects, as Mr. Hughes Q.C. (who appeared for the defendant) pointed out, the Hospital Provident Fund test reflects a narrower view of the scope of s. 92 than would appear to have been accepted in some more recent cases: see, e.g., North Eastern Dairy; Permewan Wright Consolidated Pty. Ltd. v. Trewhitt [21] ; Australian Coarse Grains Pool Pty. Ltd. v. Barley Marketing Board [No. 2] [22] . What is more in point here, however, is that it would seem plain that, in other respects, the test projects an unduly wide view of the reach of s. 92. Thus, to take an obvious example, it is difficult in the light of cases such as Permewan Wright to see how a non-discriminatory Commonwealth sales tax could, in its application to interstate sales, survive the application of the Hospital Provident Fund Case formula. Yet such a Commonwealth tax on the sale of goods has been accepted as a basic - and for many economists the preferred - means of raising national revenue since the earliest days of the Commonwealth. The burden upon interstate trade and commerce of such a sales tax, aimed purely at raising revenue, could not, at least on any current theory about s. 92, be justified as merely "regulatory". Nor could it be justified by reference to the fact that s. 90 of the Constitution is not expressed to be subject to s. 92 since the terms of the former section make plain that its operation is not to confer legislative power but to make exclusive a particular aspect of the general legislative power with respect to taxation conferred on the Parliament of the Commonwealth by s. 51(ii). It may well be that the exemption of interstate sales from a general sales tax which continued to apply to intrastate sales would involve no more than carrying the conversion of s. 92 into an actual source of discrimination against local trade and commerce to its logical conclusion notwithstanding that the result might be effectively to eliminate intrastate sales at least in more highly taxed commodities. For me, the logical validity of that conclusion reached by an application of the Hospital Provident Fund formula could serve only to demonstrate the need to qualify the premise of the formula since such a conclusion would, if accepted, turn the combined effect of the two economic provisions (ss. 90 and 92) which were central to the federation: see Hematite Petroleum Pty. Ltd. v. Victoria [23] into a travesty of their intended operation.

[225]

The Margarine Cases were cases of manufacture, but the principle for which they are authorities is missed if they are thought of as having been decided as they were because of some consideration applying exclusively to manufacture. The ratio decidendi had to do, not with anything peculiar to manufacture, but with the distinction between laws which impose by their own force restrictions or burdens upon the very things which s. 92 protects, namely inter-State trade, commerce and intercourse themselves, and laws which impose restrictions or burdens upon things antecedent or preparatory or collateral to inter-State trade, commerce or intercourse and affect such trade, commerce and intercourse as a matter only of economic or practical consequence. When one applies that "principle" to the facts of the present case, it is plain that the erection of a "station" for the purpose of transmitting signals by means of wireless telegraphy was, in the relevant sense, antecedent to and not a part or an attribute of the trade, commerce or intercourse involved in the transmission of such signals. Nor, in my view, can it properly be said that the maintenance of a station for the purpose of transmitting such signals was, in the sense explained by Kitto J. in the above passage, either a part or an essential attribute of the trade, commerce or intercourse involved in the actual transmission of the signals. A law which prohibits or burdens the maintenance (i.e. the keeping "in efficient working order": Galashiels Gas Co. Ltd. v. Millar [27] of a station does not "by its own force" impose "restrictions or burdens upon the very things which s. 92 protects", namely, the interstate trade, commerce and intercourse involved in the actual transmission of signals. Such a law restricts or burdens only what is "antecedent or preparatory or collateral to" the actual transmission of signals. It affects the trade, commerce or intercourse which that transmission involves "as a matter only of practical consequence". Indeed, s. 6(1)(a) of the Act itself distinguishes between the "antecedent", "preparatory" and "collateral" activities of the erection, establishment and maintenance of the station and the activity of using the station in the actual process of transmission. It is the last-mentioned activity (i.e. the actual use) which alone constitutes a part or an essential attribute of trade, commerce or intercourse (i.e. the transmission of signals interstate) which s. 92 protects. 1. (1955) 93 C.L.R. 55, at pp. 71-72, 79-80. 2. (1978) 139 C.L.R. 499, at pp. 510-511, 516, 523-524. 3. (1969) 120 C.L.R. 1, at p. 30. 4. [1949] A.C. 275, at p. 286.

[226]

The second strand of authority is that which establishes that a non-discriminatory law will not infringe s. 92 of the Constitution - either as a matter of direct operation or by reason of identification as a circuitous device (cf. Mansell v. Beck [28] ) - if it operates to preclude or burden something which is antecedent to interstate trade, commerce or intercourse notwithstanding that it does so by reference to the existence of trade, commerce or intercourse or a purpose of engaging in trade, commerce or intercourse. The relevant cases must, in my view, be seen as qualifying the Hospital Provident Fund formula upon grounds that are largely pragmatic. Thus, the purpose of dealing commercially with the produce of hens would seem to be an essential attribute of commerce in eggs. The fact that a tax on the keeping of hens was imposed by reference to that essential attribute of trade and commerce was not, however, seen as attracting the protection of s. 92 for an interstate trader in eggs: see Damjanovic & Sons Pty. Ltd. v. The Commonwealth [29] . It should be mentioned that in Damjanovic [30] Kitto J. seems to draw a distinction between a prohibition or burden imposed by reference to the existence of a general purpose of selling eggs when produced and a prohibition or burden imposed by reference to selling particular eggs after they have been produced. That distinction was, however, essentially an arbitrary one and was not adverted to by the majority of the Court. Again, a law which imposes a financial burden on a carrier by reference to the fact that his vehicle was used or intended to be used in trade and commerce would seem, in the words of the formula, to take "an essential attribute" of the trade and commerce of carrying goods by that vehicle and to proceed "by reference thereto or in consequence thereof" to impose the relevant financial burden. Yet the fact that the burden of paying road tax was imposed by reference to the fact that a vehicle was used or intended to be used in trade or commerce was held not to bring the law imposing the burden within the prohibition of s. 92 in a case where the relevant use or intended use constituted interstate trade or commerce: see, e.g., the Road Maintenance (Contribution) Act 1958 NSW and Freightlines & Construction Holding Ltd. v. New South Wales [31] . Finally, in Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd. [32] , the Court upheld, as consistent with s. 92, an executive refusal to permit the importation of some aeroplanes in circumstances where it was plain (see Kitto J. [33] ) that the refusal of permission to import was based upon a government policy against allowing anyone to participate in the trade or commerce of conducting interstate air services other than those already engaged in it. Ipec-Air and the subsequent case of Ansett Transport Industries (Operations) Pty. Ltd. v. The Commonwealth [34] are authority for the proposition that the imposition or maintenance of a ban or burden on something antecedent to interstate trade, commerce or intercourse by reference to a purpose of engaging in such trade, commerce or intercourse (or for the purpose of preventing it) does not infringe s. 92 of the Constitution even where interstate trade, commerce or intercourse is or would be involved. Indeed, Kitto J. (in Ipec-Air [35] ) described the contrary view as "misconceived". Similarly, once the conclusion is reached that the defendant's erection and maintenance of the Somersby station was not, on the current state of the authorities, part of or a necessary attribute of the trade, commerce or intercourse involved in the use of the station to transmit signals, the fact that the prohibition and penalization of such erection and maintenance was by reference to the purpose of using the station (in its erected and maintained state) for the purpose of such trade, commerce or intercourse does not, on the present state of the authorities, bring the case within the scope of s. 92 of the Constitution.

[246]

The Commonwealth, which intervened to support the legislation, sought to justify the mode of regulation by a submission that s. 92 does not operate to disturb governmental monopolization of a system of communication. It pointed to the recognition given by the Privy Council in James v. The Commonwealth [8] , to the State monopoly over postal services and the observation that the limitation upon private activities in that area is " a limitation notoriously existing in ordinary usage in all modern civilized communities; it does not impede freedom of correspondence, but merely as it were, canalizes its course just as "free speech" is limited by well known rules of law. Very much the same is true of the Wireless Telegraph Act 1905." Their Lordships in making these comments were, of course, dealing with the argument that certain federal statutes had been enacted on the assumption that s. 92 did not bind the Commonwealth, but it is difficult to read the reference to the Wireless Telegraphy Act as a reference to a State monopoly because the Act upon its face, notwithstanding the declaration of exclusive ministerial privilege contained in s. 4, plainly did not provide for a monopoly: it provided for the establishment, erection, maintenance and use under licence of stations and appliances for the purpose of transmitting or receiving messages by means of wireless telegraphy. And the case stated reveals that thousands of licences were issued authorizing the use of the radio frequency spectrum by means of wireless telegraphy. This case does not, therefore, raise the question which has been agitated in recent cases whether a State monopoly of some aspect of trade or commerce might be compatible with the absolute freedom guaranteed by s. 92 if it is " the only practical and reasonable manner of regulation ": see The Commonwealth v. Bank of N.S.W. [9] . See also Clark King & Co. Pty. Ltd. v. Australian Wheat Board [10] ; Uebergang v. Australian Wheat Board [11] . The regulation for which the Wireless Telegraphy Act provided was not regulation by means of monopoly; it was regulation by means of a licensing system. To avoid infringement of s. 92 such a system must be reasonable in the relevant sense. This involves recognition of the need for an ordered society so that the freedom guaranteed by s. 92 might be enjoyed by those to whom its protection extends. A system which confers an arbitrary discretion upon the Minister to grant or refuse a licence without regard to any consideration which might be measured against this requirement does not, as I have already pointed out, comply with s. 92.

[248]

A cognate submission made by the Commonwealth was that the airwaves constitute a limited resource such that not all who wish to use them can do so without preventing or hindering use by others. It was said that it was compatible with s. 92 to preserve the freedom of some users by rationing airwave frequencies and excluding others entirely. The answer to this submission must be the same as that just given. The argument might have force if it could be shown that the system of licensing established by the Wireless Telegraphy Act required the Minister to consider restricting the availability of a scarce resource to certain persons for the greater good of the whole community. But the absolute discretion given to the Minister shows that he was not required to be motivated by any such consideration. Some distinction may have to be drawn between cases involving the rationing of a scarce resource by means of a system of licences and cases involving regulation by means of a licensing system for some other purpose, such as the orderly conduct of business. It may be true to say that in cases where rationing is a reasonable mode of regulation, there will be no necessary infringement of s. 92 if an application for a licence may be refused upon grounds having nothing to do with the character of the applicant or his activities. By way of contrast, in other cases, such as the transport cases, regulation by means of a licensing system will only be reasonable if the conditions laid down for the issue of licences are reasonable and an applicant for a licence is entitled to it if he meets those conditions. Where rationing is reasonable because of the limited availability of a resource, it may necessarily involve the licensing of some and the prohibition of others. That, however, is not the same thing as complete prohibition. "If I cannot lawfully prohibit altogether, I cannot lawfully prohibit subject to an absolute discretion on my part to exempt from the prohibition": McCarter v. Brodie [12] , per Fullagar J. A system of licensing which allows a licence to be refused upon arbitrary grounds unrelated to the scarcity or availability of the resource in which participation is sought cannot fairly be described as a system of rationing and cannot be described as reasonable in reliance upon the need for such a system. The relatively large number of licences that were granted under the Wireless Telegraphy Act indicates quite clearly the scope which the Act gave to the Minister to grant or refuse a licence for reasons unrelated to the limited spectrum of radio frequencies.

[249]

The next question is whether the prohibition against unauthorized use may be severed from s. 6(1)(a), leaving the sub-section to operate in other respects. I think that this question admits of only one answer having regard to the quite separate and distinct expressions used in the sub-section. There can hardly be any doubt that the establishment, erection, maintenance and use of a station, however much they may be related, are concepts each of which, as a matter of construction, is capable of standing on its own. The severance of the word "use" does not alter the operation of the words which precede it upon the persons to whom the sub-section applies. Were it not for s. 15A of the Acts Interpretation Act 1901 Cth, it might be possible that from some of the other sections in the Wireless Telegraphy Act a legislative intent could be discerned to the effect that the Act, and s. 6(1)(a) in particular, should have operated only as a whole. Such an intent might, perhaps, be seen in s. 4 which gave the Minister the exclusive privilege of establishing, erecting, maintaining and using wireless telegraphy stations. And it might be thought that the prohibition against the unauthorized establishment, erection and maintenance of a station was ancillary to the prohibition against the unauthorized use of a station and not intended to have an independent operation. I very much doubt whether such would be the case: it seems more likely that, if it could not prohibit unauthorized use, the legislature intended to prohibit such unauthorized activities in relation to wireless telegraphy stations as it could. However, the matter cannot be approached upon that basis, for s. 15A makes it plain, in my view, that the prohibition against the unauthorized establishment, erection and maintenance of a wireless telegraphy station is, in each instance, to be construed as having an operation independent of the prohibition against unauthorized use. It has been observed that a provision such as s. 15A raises "a presumption in favour of the independence, one from another, of the various provisions of an enactment, to which effect should be given unless some positive indication of interdependence appears from the text, context, content or subject matter of the provisions": see Fraser Henleins Pty. Ltd. v. Cody [13] , per Dixon J. I can find no such indication of interdependence in the Wireless Telegraphy Act. There is no difficulty in treating the activities prohibited by s. 6(1)(a) as distributive or divisible and no different meaning is required to be given to them when they are so treated.

[251]

If a law takes a fact or an event or a thing itself forming part of trade commerce or intercourse, or forming an essential attribute of that conception, essential in the sense that without it you cannot bring into being that particular example of trade commerce or intercourse among the States, and the law proceeds, by reference thereto or in consequence thereof, to impose a restriction, a burden or a liability, then that appears to me to be direct or immediate in its operation or application to inter-State trade commerce and intercourse, and, if it creates a real prejudice or impediment to inter-State transactions, it will accordingly be a law impairing the freedom which s. 92 says shall exist. But if the fact or event or thing with reference to which or in consequence of which the law imposes its restriction or burden or liability is in itself no part of inter-State trade and commerce and supplies no element or attribute essential to the conception, then the fact that some secondary effect or consequence upon trade or commerce is produced is not enough for the purposes of s. 92. Counsel for the defendant recognized the possibility that a broader conception of interstate trade, commerce or intercourse might be extracted from later cases: see North Eastern Dairy Co. Ltd. v. Dairy Industry Authority of N.S.W. [15] ; Permewan Wright Consolidated Pty. Ltd. v. Trewhitt [16] ; Smith v. Capewell [17] ; Australian Coarse Grains Pool Pty. Ltd. v. Barley Marketing Board [No. 2] [18] . He was, however, content to rest his argument upon the passage which I have set out, submitting that the erection and maintenance of a wireless telegraphy station were both essential to the transmission of television messages interstate, that being the form of trade, commerce and intercourse in which his client was admittedly engaged, and were therefore inseparable concomitants of it. 1. (1953) 87 C.L.R. 1, at pp. 17-18. 2. (1975) 134 C.L.R. 559. 3. (1979) 145 C.L.R. 1. 4. (1979) 142 C.L.R. 509. 5. (1985) 157 C.L.R. 605.

[252]

The contrary argument, which was put on behalf of the Commonwealth, placed reliance upon cases which draw a line between acts or transactions which are preliminary to interstate trade, commerce or intercourse and the trade, commerce or intercourse itself. These cases fall into two categories. There are those dealing with the manufacture or production of goods for interstate trade or commerce in which it was held that there can be no trade in the goods until they come into existence: Grannall v. Marrickville Margarine Pty. Ltd. [19] ; Beal v. Marrickville Margarine Pty. Ltd. [20] ; Damjanovic & Sons Pty. Ltd. v. The Commonwealth [21] ; Bartter's Farms Pty. Ltd. v. Todd [22] . And there are the cases in which it was held that a prohibition against the importation of goods for use in interstate trade or commerce does not operate upon, and so does not interfere with the freedom of, interstate trade or commerce: Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd. [23] ; Ansett Transport Industries (Operations) Pty. Ltd. v. The Commonwealth [24] . Whilst in Ansett Transport Industries (Operations) Pty. Ltd. v. The Commonwealth Aickin J. pointed out [25] that the importation cases might also be explained upon the basis that s. 92, being dependent for its operation upon the introduction of uniform customs duties, necessarily contemplates prohibitive measures against imports. Nevertheless those cases, as well as the cases dealing with manufacture or production, also rest upon the proposition that the relevant activity is anterior to interstate trade and does not form part of it: cf. Australian Coarse Grains Pool Pty. Ltd. v. Barley Marketing Board [No. 2] [26] . It is not enough to attract the protection of s. 92 that the activity " affects something which, because it is a sine qua non to the existence of some subject of the freedom which s. 92 guarantees, has a consequential effect on what might otherwise have been done in inter-State trade": Grannall v. Marrickville Margarine Pty. Ltd. [27] .

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