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[1935] HCA 78
respondent. Appeal dismissed. The appellant was ordered to pay the respondents' costs of the appeal, including the costs of the first High Court hearing but not the subsequent further argument.
The High Court majority held that the Commonwealth could regulate radio broadcasting under its constitutional power over telephonic and like services. It also held that a receiver used to hear broadcast speech was an appliance for receiving messages under the Wireless Telegraphy Act. The Court dismissed Williams's appeal. Dixon J disagreed, reasoning that broadcasting was a public performance rather than individual communication and was outside both the statutory word 'messages' and the relevant constitutional power.
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In R v Brislan; Ex parte Williams, the High Court considered whether Commonwealth law could regulate radio broadcasting and whether a domestic radio receiver came within the Wireless Telegraphy Act 1905-1919. The case arose after Dulcie Williams was convicted in the Court of Petty Sessions at Sydney for maintaining a wireless receiver without a current listener's licence.
No linked legislation citations have been extracted yet.
Departmental officers visited Williams's premises on 26 September 1934. They found a five-valve all-electric wireless receiving set connected to an indoor aerial and heard a B-class broadcasting station transmitting speech. The following day, Williams admitted that she owned the set, that it had been installed for a week, and that she did not have a current wireless listener's licence. The stated evidence was that the set could receive messages or other audible sounds or matter from a wireless transmitting or broadcasting station.
Williams was convicted and fined £1, with eight shillings costs, or alternatively three days' imprisonment. She sought prohibition, challenging both the statutory basis for regulating the receiver and the Commonwealth Parliament's constitutional power to regulate broadcasting. The case was heard by Latham CJ and Rich, Starke, Dixon, Evatt and McTiernan JJ. The Court dismissed the appeal. Dixon J dissented.
The central statutory provisions were s 6, which prohibited maintaining an appliance for receiving messages by wireless telegraphy without authority under the Act, and s 2, which defined wireless telegraphy to include systems for transmitting and receiving telegraphic or telephonic messages by electricity without a continuous metallic connection between transmitter and receiver.
The majority's reasoning connected the nature of the broadcast, the Act's wording and the constitutional power. Each judge in the majority accepted that broadcasting fell within Commonwealth legislative power, although their reasoning was not identical in every respect.
Latham CJ began with the statutory question. In his view, the Act's use of “message” was not confined to private, point-to-point communications. A message was a communication transmitted and received over a distance. The fact that the same communication could be received simultaneously by many people did not change its character. He reasoned that broadcast speech was a communication sent to a distance and therefore could be a message under the Act.
Latham CJ also rejected the suggestion that a telephonic service had to be private or limited to communication between two people. The constitutional category, in his view, concerned the function performed by a service, not whether the communication was confidential, mutually initiated or available to every person without a licence. He considered broadcasting to be a communication service and therefore a service like the listed services in s 51(v). He also treated wireless broadcasting as a form of wireless telephony.
Rich and Evatt JJ focused on the constitutional power's capacity to accommodate technological development. They described the power as directed to distant communication conducted according to a systematic plan. Broadcasting used electrical means to transmit sound over distance and, in their view, possessed prominent features of telephony. Although broadcasting differed from point-to-point telephone communication, they concluded that the difference did not take it outside the power.
Starke J considered likeness by reference to the means by which the service operated. He saw no material distinction between a telegraphic service and a telephonic service for this purpose, and regarded radio as a method of communication without a continuous metallic connection. He also read “messages” broadly in the context of wireless legislation, including the dissemination of speech and musical performances.
McTiernan J agreed that broadcasting was within the constitutional power and that the transmission of programme sounds could be described, in ordinary usage, as transmission of messages. He considered that the Act's definition and the constitutional power were broad enough to encompass broadcasting.
Dixon J dissented on both statutory construction and constitutional characterisation. He read “message” as an individual communication sent by one person to another, while accepting that identical communications could be sent separately to many definite recipients. Broadcasting, he reasoned, was a public performance or utterance addressed indiscriminately to listeners. He also considered that the relevant constitutional services shared the function of enabling individuals to communicate with one another at a distance. Broadcasting supplied no such means of intercommunication, so he concluded that it fell outside s 51(v).
Before the decision, the Commonwealth's regulation of broadcasting had been operating under the Wireless Telegraphy Act and regulations, but the judgment records a constitutional difficulty over whether broadcasting fitted within s 51(v). Dixon J noted that the regulations had previously enjoyed an “immunity from attack” and that the States had apparently acquiesced in the Commonwealth's exercise of the power. That observation was part of his discussion of the constitutional issue, not a finding that the constitutional question had already been settled.
The case also drew on earlier authorities concerning how constitutional powers apply to new technologies. The majority relied on the principle, stated in Pensacola Telegraph Co. v Western Union Telegraph Co., that constitutional powers are not necessarily confined to instruments known or in use when a constitution was adopted. The Court also referred to Attorney-General v Edison Telephone Co. of London for the history of treating telephones as telegraph-related communications, and to the Privy Council's decision in In re Regulation and Control of Radio Communication in Canada. In that Canadian case, broadcasting had been held to fall within the relevant constitutional description of “telegraphs” and undertakings connecting provinces.
After Brislan, the High Court had held that s 51(v) covered broadcasting and that the Act applied to a receiver used to receive broadcast speech. The judgment does not set out a later statutory amendment or a subsequent Australian decision modifying that holding. The conclusion should therefore be stated at the level established by the judgment: this Court upheld the Commonwealth's power and the application of the Act to the facts before it.
The judgment did not depend on the trade and commerce power. The respondent argued that broadcasting could also be supported by s 51(i), but Latham CJ expressly declined to decide that question because he considered s 51(v) sufficient. Dixon J considered the commerce argument but said that the Act was not based on that power and, in his view, could not be supported by it on the case as presented.
The printed judgment provided here has no numbered paragraphs. The following passages are therefore identified by judge rather than paragraph number.
Latham CJ stated: “A message does not cease to be a message merely because it is intended for or may in fact be received by a large number of persons simultaneously.” In plain English, a communication can still be a message even where the broadcaster intends a large audience to hear it.
Rich and Evatt JJ described the constitutional power's object as “to place under Federal authority the control of distant communication carried on according to a systematic plan.” This expresses their view that the constitutional category was about organised communication over distance, not just the specific technologies available at Federation.
Latham CJ said that the character of a service was determined by “the function which it performs.” His point was that the constitutional power did not depend on the service being publicly operated, confidential or limited to two-way communication. For him, broadcasting performed a communication function relevant to s 51(v).
Dixon J's dissent said that the points of resemblance between broadcasting and the listed services “are exhausted” once the use of wireless is considered. He accepted technological similarities but concluded that broadcasting lacked the individual intercommunication that, in his view, characterised the constitutional category.
The case directly concerns a domestic wireless receiver maintained to receive broadcast speech without a current listener's licence. The majority treated that receiver as an appliance for receiving messages under ss 2 and 6 of the Wireless Telegraphy Act.
The constitutional reasoning is relevant to the characterisation of organised services that communicate sounds or other information over distance by means of broadcasting. Its reasoning rejects the idea that simultaneous reception by a large audience necessarily removes a communication from the category of a message or service covered by s 51(v).
The case's boundaries matter. The Court decided the legal treatment of the receiving set and the broadcast material established on the evidence. Latham CJ said it was not strictly necessary to decide whether musical programmes or sounds as such were messages, because receiving broadcast speech was enough to decide the case. Other majority judges expressed broader views about programme sounds. The judgment therefore contains differing formulations on that point, and the safest common ground is the treatment of broadcast speech.
The decision also arose under a particular statutory definition and prohibition. It does not, by itself, answer questions about later legislation, different communications technologies or the construction of different statutory language. Those questions would require examination of the relevant text and later authorities, neither of which is supplied here.
The judgment provided for this analysis contains no later Australian decisions applying, distinguishing, limiting or overruling Brislan. A later-treatment history cannot therefore be established from the supplied text.
The judgment itself considered earlier authorities. It referred to Pensacola Telegraph for the proposition that constitutional powers may extend to later technological developments. It discussed Edison Telephone in relation to the meaning of telegraphy and communication by telephone. It treated the Privy Council's decision in In re Regulation and Control of Radio Communication in Canada as significant support for classifying broadcasting within a telegraph-related constitutional description. The Court also referred to cases concerning radio transmission and reception, including Chappell & Co. Ltd. v Associated Radio Co. of Australia Ltd. and Buck v Jewell-LaSalle Realty Co., in discussing the technological or communicative aspects of radio.
Those are authorities considered by the High Court in deciding Brislan, not later treatment of Brislan itself. The supplied judgment does not establish how subsequent courts interpreted the holding, whether they confined it to broadcasting, or whether they relied on its reasoning in other constitutional contexts.
One issue left unresolved by Latham CJ was whether the reception of music or sounds as such amounted to receiving a “message” under the Act. He considered it unnecessary to decide that question because the receiver was maintained to receive speech. Rich and Evatt JJ said that most broadcast material could come within the ordinary meaning of messages, while Starke J expressed the broader view that dissemination of sounds, including music and speech, was covered. The opinions therefore do not all state the same boundary.
The judgment also left the trade and commerce power's application to broadcasting undecided in the majority reasoning. Latham CJ expressly made no finding on whether s 51(i) independently supported regulation. Dixon J addressed that argument but rejected it as a basis for the Act in the case before the Court.
A further point is how broadly the reasoning about “other like services” extends beyond broadcasting. Latham CJ's functional approach was broad: he focused on the service's communication function rather than its precise technology or mode of control. Dixon J's dissent proposed a narrower common characteristic, individual intercommunication. The judgment resolves the broadcasting issue before it, but the competing approaches show why classification of a different service would require close attention to its function, organisation and the wording of the relevant constitutional power.
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H.C. or A. Constitutional Law (Cth.) - Wireless telegraphy - Radio broadcasting - Validity 9
(HIGH COURT OF AUSTRALIA.] THE KING AGaINsr BRISLAN ; Ex parte WILLIAMS. statute - " Postal, telegraphic, telephonic and other like services "Appliance Jor receiving " messages" by means of wireless telegraphy - Broadcasting receiv
set - The Constitution (63 & 64 Vict. c. 12), sec. 51 (v.) - Wireless Telegra Act 1905-1919 (No. 8 of 1905 - No. 4 of 1919), secs. 2, 6.
Sec. 51 (v.) of the Constitution confers on the Commonwealth Parliament power to legislate with respect to radio broadcasting.
A wireless set kept for the reception of broadcast programmes is an appliat maintained for the purpose of receiving messages by means of wireless telegrap! -within the meaning of sec. 6 of the Wireless Telegraphy Act 1905-1919, and that section, so construed, is validly enacted under the power conferred by sec. 51 (v.) of the Constitution,
So held by Latham C.J., Rich, Starke, Evatt and McTiernan JJ. (Dizon dissenting).
Observations on the meaning of the words " other like services" in see. 5 (v.) of the Constitution and of the word " messages " in sec. 6 of the Wireles Telegraphy Act 1905-1919,
Upon an information laid by Roy Vincent Brislan, a wireless
Wales, without authorization by or under the Wireless Telegraphy H.C. oF 4. Act 1905-1919, maintain an appliance for the purpose of receiving heist messages by means of wireless telegraphy contrary to the Actin such Tae Kix case made and provided. Basta The evidence showed that upon the occasion of a visit paid by Toe departmental officers on 26th September 1934 to the defendant's s - - premises they found there a five valve all-electric wireless receiving set connected to an indoor aerial. They heard a B class broad- casting station broadcasting speech. On the following day the defendant admitted to the officers that she owned the wireless receiving set, that it had been installed for a week, and that she did not have a current wireless listener's licence. The receiving set was capable of receiving messages or any audible sounds or matter from a wireless transmitting or broadcasting station. The defendant was convicted and fined. Upon her application Evatt J. ordered the informant and the magistrate to show cause before the Full Court of the High Court why a writ of prohibition should not be issued to restrain them and each of them from further proceeding on or in respect of the convic- tion. The grounds of the order nisi were (a) that the Wireless Telegraphy Act 1905-1919 is ultra vires the Commonwealth of Australia Constitution ; (b) that the regulations as to broadcasting ~ made under that Act are ultra vires the Act ; (c) that the Constitution gives no authority to the Commonwealth Parliament to make laws or authorize regulations of a general character in relation to radio broadcasting; (d) that there was no evidence (i.) that the appliance (if any) maintained by the applicant was for the purpose of receiving messages by means of wireless telegraphy within the meaning of the Wireless Telegraphy Act 1905-1919, (ii.) that the applicant did maintain an appliance for the purpose of receiving messages by means of wireless telegraphy, or (iii.) to support the conviction. The matter was argued before Rich, Starke, Dizon, Evatt and MeTiernan JJ., on 21st and 22nd March 1935, and judgment was reserved. Pursuant to an announcement by Rich J. on 14th October 1935, the matter now came on to be re-argued.
H.C.or A. - Piddington K.C. (with him Evatt and Farrer), for the applic: 1935.
The reception of speech is not forbidden by or under the Wireles Telegraphy Act. The word " broadcast" does not appear in Bristay; Act. The Parliament has not legislated in respect of broadcasting ; XX Parte there is not any statute which supports broadcasting. The question
the Constitution " service' means department of the Public
mean departments of the Public Service "like," or of the nai of, but not one of, the three named services. Broadcasting is different in character from postal, telegraphic and telephonic se The nature of those services is that they are services to enable members of the community to engage in mutual communication o anything within their desire, and to engage in that communicat without limitation and with right of non-disclosure to other person: The essential features of mutuality of exchange and right of non: disclosure to other persons are not present in broadcasting ; therefor matter which is broadcast is not a "' message" within the meanin; of the Wireless Telegraphy Act. Even if the means are " like," the service is wholly different. To broadcast is to disseminate informa tion, or instruction, or entertainment ; it is not intercourse bet individuals. Sec. 51 (v.) of the Constitution does not empower the Commonwealth Parliament to legislate with respect to broadcas
In any event the Parliament has no power to legislate in the manner
an arrangement, an organization, utilizing actual physical (In re Regulation and Control of Radio Communication in Ca (1) ). The only point of resemblance is in the use of wirel telegraphy. It is not a point of resemblance in the service; i a similarity of the way by which the service is carried on.
EB. M. Mitchell K.C. (with him A. R. Taylor), for the responde: The validity of the Wireless Telegraphy Act and the regulations may (1) (1932) A.C. 304, at p. 315.
be supported on the grounds that (a) the service given is a telephonic H- ©: oF A.
service within the meaning of placitum v. of sec. 51 of the Constitu-
tion, (b) it is a "like service' and (c) if neither (a) nor (6), it is a part of inter-State commerce. Broadcasting is a telephonic service within the meaning of placitum v. (In re Regulation and Control of Radio Communication in Canada (1) ). In that case the Privy Council held that the word " tele- graph " did not there mean the apparatus ; it referred to the service conducted by the apparatus, and that the service there in question was a telegraph service because it came within the definition of service conducted by a telephone for transmitting messages. There is not a telegraphic service in the Canadian system. "' Wireless telegraphy '" means any system for the transmission of messages (Halsbury's Statutes of England, vol. 19, pp. 290, 291). The means whereby transmission and reception are effected were discussed in Chappell & Co. Ltd. v. Associated Radio Co. of Australia Ltd. (2) and Bucky. Jewell-LaSalle Realty Co. (3). Full and adequate control over broadeasting is vital to the security of the Commonwealth (Carbines v. Powell (4) ). The meaning of the Constitution cannot fluctuate ; words of wide meaning were used so as to cover all possible inventions (Toronto Corporation v. Bell Telephone Co. of Canada (5)). A broadcast licence is obtainable by any person. The essence of the telegraph service is that it is a service for transmitting messages from a distance by sounds or signals. The word " services" as used in placitum v. does not refer to or mean " departmental services." The words " other like services" do not cut down the meaning of the words "telephonic" and "telegraphic"; they were inserted for more abundant caution to provide for future developments and inventions (Attorney-General v. Edison Telephone Co. of London (6) ; Attorney-General for New South Wales v. Brewery Employees Union of New South Wales (7); Edwards v. Attorney-General for Canada (8) ). Those words should be given a liberal interpretation. A "like service" in that context means any other service for trans-
(1) (1932) A.C, 304. (5) (1905) A.C. (2) (1925) V.LLR. 350; 47 A.L.T. 12. (6) (1880) 6 Q.B.D. 244, at pp. 248, 249, 254,
(7) (1908) 6 C-L.R. 469. (8) (1930) A.C, 124, at p. 136.
rats; Tue Kine v Brisvan ; Ex Parte Wittiams.
H.C. or A. mitting messages or communications from a distance by si 1935. ' es
'Tue Kixe were meant to include a telegraphic or telephonic service wheth:
which might deal with the conveyance of intelligence by eles At the date the Constitution was assented to wireless was subject of invention, and also was in practical use for several prior to that date. In order to be " like," the service is not requi to be identical in all respects (Attorney-General for New South Wale v. Brewery Employees Union of New South Wales (1); Attorne General v. Edison Telephone Co. of London (2) ). The test of th "likeness " of a service is not the nature of control but the purpe it serves. If it serves by transmitting messages by electricity from a distance it is indistinguishable from telegraphic services. development of wireless represents a progressive improvement the use of the telegraph ; it does not constitute a new subject matte for which provision has not been made in the Constitution (Pensa Telegraph Co. v. Western Union Telegraph Co. (3) ). The point to
properly comprehended to be within the category of telegraph ; it was a limitation of the system then known. Simultaneous reception by subscribers per medium of the telephone was, in 1903, a practi operating application of the telephone service (Poole on Prac Electricity, p. 548). Tt is nothing to the point that all persons
regulation is not an essential characteristic of those servit Broadcasting is a public or national service. One of the reasons the inclusion in placitum v. of the words " other like services" was the necessity for protecting the revenue which the Commonwea obtained from the postal, telephonic and telegraphic services.
(3) (1877) 96 U.S. 1, at p.9; 24 Law. Ed. 708, at p. 710. ;
the affirmative, then, although the details may differ, broadcasting isa " like service " within the meaning of placitum v. In its essential features broadcasting is " like " the postal, telegraphic and telephonic services, more particularly the telephonic service. The service of sending messages by broadcast is within the inter-State commerce power conferred upon the Commonwealth by placitum 1. of sec. 51 of the Constitution. What constitutes inter-State commerce is shown in Willoughby on The Constitutional Law of the United States, 2nd ed. (1929), vol. 2, p. 735. In the nature of the subject matter the inter- State and intra-State commerce in wireless messages is intermingled to such an extent that the secrecy and efficiency of the inter-State and foreign radio involves a right of the Commonwealth to insist upon licences for the operation of all receiving stations and all transmitting stations within its area (Federal Radio Commission v. Nelson Brothers Bond & Mortgage Co. (1) ). The transmitter cannot be separated from the receiver (In re Regulation and Control of Radio Communication in Canada (2) ). Where inter-State and intra-State commerce are intermingled in such a way that the effective regulation of inter-State commerce requires the regulation also of the intra- State commerce, then intra-State commerce may be regulated so far as may be necessary for the effective conduct of inter-State commerce (R. v. Turner; Ex parte Marine Board of Hobart ; Tasmania v. The Commonwealth (3); Minnesota Rate Cases (4) ). It is a matter of common knowledge that all receivers at times receive inter-State messages by way of inter-State broadcasts. What is so transmitted and received is a "message" (In re Regulation and Control of Radio Communication in Canada (5) ; Chappell & Co. Ltd. v. Associated Radio Co. of Australia Ltd. (6); Buck v. Jewell-LaSalle Realty Co. (7) ). " Message" should be given a broad and literal meaning ; not a restricted meaning. It should not be overlooked that the broadcasting service is national in character, affecting nation-wide interests, and should, for that reason, be in the care of the national government. The form of
(1) (1933) 289 U.S. 266, at p. 279; (4) (1913) 230 U.S. 352; 57 Law. Ed. 77 Law. Ed. 1116, at p. 1175. 1511
(2) (1932) A.C,, at p. 315, (5) (1932) A.C., at p. 316.
(3) (1927) 39 C.L.R. 411, (6) (1925) V.L.R. 350; 47 A.L.T. 12.
H.C. or A. Jicence issued in England is set forth in British Broadcasting Co. y
Piddington K.C., in reply. The power of the Commonwealth 1 control and regulate broadcasting depends entirely upon th interpretation of the expression " other like services " in placitum That expression does not mean 'other services carried on by lik apparatus. It is not sufficient to consider only the means by whiel a service can be carried out. In broadcasting there is not an mutuality as between the transmitter and the receiver ; the latte is a "listener" only. This feature and also the absence of sec which is of the essence, distinguishes broadcasting from " telegraphic and telephonic services." " Service " means service it being ; that is, the Government departments expressly referred te in placitum v., as then existing. The Canadian Constitution | different from the Commonwealth Constitution, especially as regand this subject; therefore the decision in In re Regulation and Control Radio Communication in Canada (2) does not apply. The word " service," which is of the utmost importance here, was not construed in that case. The regulation of broadcasting does not come withit the trade and commerce power of the Commonwealth. The word "message " as used in the Wireless Telegraphy Act means telephoni message or telegraphic message.
Latuam C.J. The question raised upon this application for writ of prohibition is whether Dulcie Williams, the defendant in the proceedings before the Court of Petty Sessions at Sydney, rightly convicted for maintaining without authorization by or under the Wireless Telegraphy Act an appliance for the purpose of receivint messages by wireless telegraphy contrary to the Wireless Telegraphy Act 1905-1919.
Sec. 6 (1) of that Act is in the following terms : - " Except as authorized by or under this Act, no person shall - (a) estab
(1) (1926) Ch. 433; 42 T.L.R. 370. (2) (1932) A.C. 304.
erect, maintain, or use any station or appliance for the purpose of transmitting or receiving messages by means of wireless telegraphy ; or (b) transmit or receive messages by wireless telegraphy. Penalty : Five hundred pounds, or imprisonment with or without hard labour for a term not exceeding five years."
It is provided in sec. 2 of the 1905 Act as amended by the Wireless Telegraphy Act 1919 that wireless telegraphy " includes all systems of transmitting and receiving telegraphic or telephonic messages by means of electricity without a continuous metallic connection between the transmitter and the receiver."
The evidence shows that officers of the Postmaster-General's Department visited defendant's premises on 26th September 1934 and found there a five valve all-electric wireless receiving set connected to an indoor aerial. They heard the broadcasting station 2 KY broadcasting speech. On the following day the defendant admitted to the officers that she owned the wireless receiving set, that it had been installed for a week, and that she had no current wireless listener's licence. The defendant was convicted and was fined £1 with eight shillings costs or alternatively three days imprisonment.
The objections taken in the Court of Petty Sessions are repeated in the grounds upon which the order nisi was granted : these grounds are as follows : - " (1) (a) That the Wireless Telegraphy Act 1905- 1919 is ultra vires the Commonwealth of Australia Constitution. (b) That the regulations as to broadcasting made under the Wireless Telegraphy Act axe ultra vires the said Act. (c) That the Constitution gives no authority to the Commonwealth Parliament to make laws or authorize regulations of a general character in relation to radio broadcasting. (2) That there was no evidence that the appliance (if any) maintained by the applicant was for the purpose of receiving messages by means of wireless telegraphy within the meaning of the Wireless Telegraphy Act 1905-1919. (3) That there was no evidence that the applicant did maintain an appliance for the purpose of receiving messages by means of wireless telegraphy as alleged. (4) That there was no evidence to support the conviction."
The first question for consideration is whether, upon the assumption that the relevant provision of the Wireless Telegraphy Act is valid, the defendant committed an offence thereunder.
Sec. 6 of the Act prohibits, inter alia, the maintenance of ; appliance for the purpose of receiving messages by means of y telegraphy (which includes telephony) except as authorized under the Act. There is no doubt that the defendant was authorized by or under the Act to maintain the wireless set y she did in fact maintain.
Provision is made under the regulations for an authority or licen to maintain a wireless receiving set. It has been argued that t regulations, so far as they deal with broadcasting, are ultra vi) Act. But even if this were so, the only result would be th valid provision was made for giving a licence under the regulatio The success of the argument would not give the defendant a lic or other authority. Thus the alleged invalidity of the regul: cannot affect the liability of the defendant in this case. It is fore necessary to consider carefully the section of the Act under which the defendant was charged.
The appliance the maintenance of which without authority prohibited by sec. 6 of the Act is an appliance for the purp transmitting or receiving messages by means of wireless telegraphy which, as defined in the Act, includes all systems of transmittit and receiving wireless telephonic messages. Telephony co : the reproduction of sounds, with or without amplifiers, at a dis
It has been suggested that a telephone is an instrument provides communication from point to point only, and that if is heard at the receiving end is available for all bystanders to he the communication is not telephonic in character. This argun
telephone should be audible simultaneously at many rec which are suitably connected by wires to the system. In s
the purpose of reaching a conclusion that wireless broadcasting is not a system of transmitting and receiving telephonic communica- tions do not appear to me to justify that conclusion.
The appliance in this case was maintained for the purpose of receiving whatever might be broadcasted from wireless broadcasting stations - whether speeches or music or other audible sounds. It is urged that eyen if the operation of broadcasting is telephonic in character, yet the definition of wireless telegraphy (which has already been quoted) limits wireless telegraphy for the purpose of the Act to systems of transmitting and receiving messages, and that what was received by the defendant's wireless set could not properly be described by the term " message."
It is difficult to enumerate all the forms of message which may be used by mankind. A message may be communicated by spoken or written words, by notches cut in a stick, by audible or visible symbols which are not ordinary words or not words at all, but to which a meaning can be attached by those who understand the relevant code. Direct conversation is not usually regarded as a message, though a more or less formal oral deliverance to a number of persons is often, with a well-established extension of the more ordinary meaning of the word, called a message.
An understanding of the nature of a message for the purposes of the Act can be obtained from the Act itself. The words of the Act show that a message is something which is transmitted and which may be received. There is a distance between the transmitter and the receiver, and the function of the appliance referred to in the Act is to assist in bridging that distance. This appears from the words of sec. 6. Thus the essential characteristic of a message appears to be found in communication from a distance, as distinguished from direct communication between persons who are face to face. As a general rule such communications are made for the purpose of conveying "information, news, or intelligence." But the sender may use for this purpose a language that is not generally intelligible. A communication may be a message even if the person actually dispatching it does not understand it. A message sent in code, consisting of permutations of figures, is none the less a message because it means nothing to persons who are not in a position to
apply the key to decipher it. The morse signals which are t out by a key at a transmitting telegraphic instrument, and are recorded by a receiving instrument, constitute a message | before they are interpreted. Where a teleprinter is used, a mes has been sent though no one supposes that the actual letters h been sent along the telegraph wire. Thus, in the case of an e telegraph, a message is received when visible symbols of some k generally, but not necessarily, accompanied by audible sounds, received by a receiving instrument.
It is not out of place to recall that the first telegraphs consisted
manually operated semaphores. Such apparatus is still in
particularly at sea. The working of such a telegraph leaves 1
permanent result anywhere in any record. The message ci
received by any persons who are within the area from which
apparatus is visible. What such a telegraph sends out is
message though it is broadcasted to the world.
A telephone message can be heard only through a suitable receivir instrument. The fact that such an instrument is necessary do not affect the character of a communication as a message.
It would therefore appear that neither the number of possil
a message does not cease to be a message merely because it is intended for or may in fact be received by a large number of pe simultaneously. Thus broadcasting by wireless may be a m transmitting messages which are receivable by large numbe persons who possess suitable receiving apparatus.
If the broadcasting of speech is in this connection the transmi of messages (i.e., of communications which because they are sé to a distance may be properly called messages), then the rece of such speech by means of an appliance maintained for the p of picking wp whatever is broadcasted involves the mainta an appliance for the purpose of receiving messages by means wireless telegraphy as defined in sec. 2 of the Act.
It is true that the defendant's wireless receiving set would up musical programmes as well as spoken communications a
that it was doubtless maintained also, and perhaps mainly, for this H.C. oF A.
purpose. But even if the reception of a musical programme is not the receiving of a message, this fact does not affect the truth of the proposition which has just been stated, namely, that the reception of speech is, in this connection, reception of a message in the sense in which that word has long been used in connection with telegraphy and telephony. For this reason it is not, in my opinion, strictly
necessary to decide in this case whether or not the transmission or
reception of musical programmes or of sounds as such can be described as the transmission or reception of a message. If, however, it were necessary to decide this question, I would agree with the conclusion reached by my brothers Rich, Starke and Evatt. I would so agree upon the ground that the essence of a message is to be found in the fact that it is a communication sent from one person to another person or other persons, and that therefore the broadcasting of music does involve the transmission and reception of messages.
Thus, in my opinion, if sec. 6 of the Wireless Telegraphy Act is valid, the defendant was rightly convicted.
The next question which arises is therefore the question of the validity of the Act.
The contention raised on behalf of the defendant is that, even if the Act (as a matter of construction) authorizes the control of broad- casting, the Constitution does not confer upon the Commonwealth Parliament any power to legislate with respect to broadcasting. The Constitution provides in sec. 51 (v.) that the Commonwealth Parliament may make laws for the peace, order and good government of the Commonwealth with respect to " postal, telegraphic, tele- phonic, and other like services." It is contended for the defendant that broadcasting does not fall within any of the subjects mentioned.
In the earlier part of this judgment I have stated my reasons for the opinion that broadcasting is a form of wireless telephony. It consists in the transmission by wireless of sounds to a distance. The transmission of music by such means is no less telephonic than the transmission of spoken words. It is, in my opinion, unnecessary to investigate the precise means whereby transmission and reception are effected. Some discussion of these matters is to be found in
the cases of Chappell & Co. Ltd. v. Associated Radio Oo. of Ai Ltd. (1) and Buck v. Jewell-LaSalle Realty Co. (2).
The Canadian Constitution does not refer to telephonic services The Dominion Parliament, however, has exclusive power to contr "ines of steam or other ships, railways, canals, telegraphs, other works and undertakings connecting the Province with other or others of the Provinces, or extending beyond the limits the Province" (British North America Act 1867, sec. 92 (10)). 1 has been held that in this section " telegraphs " includes telephon (Loronto Corporation v. Bell Telephone Co. of Canada (3) ). is now the further authority of the Judicial Committee of th Privy Council for the proposition that broadcasting also fa within the description of " telegraphs " (In re Regulation and Co of Radio Communication in Canada (4) ). If broadcasting is ind in " telegraphs " in the Canadian Constitution, then a fortiori broad casting is covered by the words " telegraphic " and " telephonic' in the Australian Constitution.
It is not, however, sufficient that the operation of broadcas and receiving broadcasted material should be telephonic in character
The Commonwealth Parliament, so far as telephony is concerne can legislate only with respect to a telephonic service or sery It is contended that broadcasting is not a service in the sense in which that term is used in sec. 51 (v.) of the Constitution. ,
In the first place it was suggested that " service" in sec. 51 (¥.) should be read in a sense similar to that in which it is used in s 69, which provides for the transfer to the Commonwealth of speci departments of the Public Service in each State, including " posts, telegraphs, and telephones." The services so transferred are, it is suggested, the same services as those with respect to which Parliament can legislate under sec. 51 (v.). 2
In my opinion sec. 69 refers to departments of the State Publi Services in the sense of the servants of the State employed in the departments mentioned. Sec. 69 gives to the Commonwealth th control of those servants from the dates proclaimed or otherwise fixed under the section. The effect of this transfer is stated in
L.R. 350; 47 A.L.T. 12. (3) (1905) A.C., at p. 57. 3 U.S. 191; 75 Law. Ed. 971. (4) (1932) A.C. 304,
detail in sec. 84, and legislative power with respect to the depart- ments is vested exclusively in the Commonwealth Parliament by sec. 52 (u.). The property used in connection with such a department is transferred to the Commonwealth under sec. 85. These sections, however, do not confer upon the Commonwealth Parliament power to legislate with respect to the subject matter with which these transferred departments deal. Parallel instances can be found in naval and military defence and in customs. Power to control the actions of officers constituting the defence services and the customs services is to be found in the sections mentioned. But the power to legislate on matters of defence is dealt with by sec. 51 (vr.) and on matters of customs by sec. 51 (1.) and (11.) and sec. 90.
Similarly, in the case of postal, telegraphic, telephonic, and other like services, sec. 51 (v.), in my opinion, gives a power which is really, and not only nominally, additional to that given by the other sections quoted. It cannot be limited to a power to legislate with respect to public servants.
But it is more strongly urged that the power conferred by sec. 51 (v.) is a power to legislate only in respect of services in the sense of publicly controlled services of the same general character as those which the Colonies controlled before Federation. The argument tends to become elusive, but it was expressed by saying that these services were public utilities, including installation, maintenance, operation, and organization, provided and controlled by Parliaments, for the purpose of spoken or written converse between any person and any other person by means of postal, telegraphic and telephonic apparatus and equipment. It was said that it was a characteristic feature and an essential feature of these services that any member of the public had the right to avail himself of them for both sending and receiving. Attention was called to the fact that broadcasting in Australia was provided in part by a broadcasting commission and in part by what are known as B class stations. The regulations require licences for both transmitting and receiving broadcasts. It is said that, if such a system be a service at all, it is not a service in the sense in which the term is used in the phrase " postal, telegraphic, telephonic, and other like services."
Iam unable to see any satisfactory reason for adopting so nam a construction of sec. 51 (v.) as that which is suggested. character of any service is determined by reference to the fun which it performs. A telephonic service consists of the means organization provided for sending telephonic communica Under a power to legislate with respect to telephonic Parliament may pass laws to provide and instal telephone ap, and to determine rules in accordance with which any such appari may be used. On the other hand, the Parliament need not m: any such provision at all. If it does not make such provisi may give complete control to a Minister in charge of a depa or it may "farm it out." A Parliament which disapp telephones might, so far as legal powers are concerned, repeal statutes dealing with telephones and prohibit the existence of « telephone service, just as it might (in the exercise of powers ui sec. 51) prohibit the existence of any defence force or of any li houses or copyrights or patents. It might also allow any pe to instal and use telephones without any governmental authori of any kind.
It is impossible to express or apply any definite measure of leg lative power upon the principle suggested for the defendant. ' say that postal, telegraphic and telephonic services must ne be " public " services is to introduce what, in this connection, is very vague conception. It is a question of policy whether should be any and what legislation upon such subjects as communit tion services. A telephone service may be provided by a pri person or by an ordinary public company, or by a public com or other corporation operating under a franchise or other s power, or by a Government department. The necessity | acquiring rights to erect poles and to place conduits in highways has in practice made it necessary for the Legislatu
upon a Government department. But, whatever form of manag ment and control may be adopted, it is management and cont the same thing - the provision of facilities for telephonic commu! cation, as generous or as limited as Parliament has thought prop
determine that one statute providing for the control of telephonic communications is valid because the control is " public" and because all the members of the public have "rights" to use the telephone, whereas another statute is not valid because the control thereunder is not " public " enough, or the service is not sufficiently available to members of the public. The validity of the Post and Telegraph Act can hardly depend upon the extent to which facilities are given to the public or upon the extent of the prohibitions applied by Parliament to sending letters and other articles through the post. It appears to me to be impossible to attach any definite meaning to sec. 51 (v.) short of that which gives full and complete power to Parliament to provide or to abstain from providing the services mentioned, to provide them upon such conditions of licences and payment as it thinks proper, or to permit other people to provide them, subject or not subject to conditions, or to prohibit the provision of such facilities altogether.
If, however, the argument presented on this aspect of the case is sound, it should be remembered that the Wireless Telegraphy Act, the regulations thereunder, and the Australian Broadcasting Commis- sion Act 1932, do in fact permit both broadcasting and the reception of broadcasted material by authorized persons, but under a large measure of public control, exercised either by the statutory Broad- casting Commission or by the Postmaster-General.
Under the power to make laws with respect to telephonic services it is, in my opinion, within the power of the Commonwealth Parlia- ment to regulate as it may think proper that form of wireless tele- phony known as broadcasting.
If, however, this opinion should not be well founded, it is necessary to consider the words " or other like services."
In the first place, it is clear that it was intended by these words to extend the legislative power beyond postal, telegraphic, and telephonic services. Otherwise the words would be meaningless. The reasons for the addition of the words " other like services " can be readily understood if reference is made to the history of the subject. In Attorney-General v. Edison Telephone Co. of London (1) it was held, after much argument, that Edison's telephone was a
"telegraph " within the meaning of the Telegraph Acts 1 1869, although the telephone was not invented or contempla 1869, and that a telephone conversation was a "* message," or at events "a communication transmitted by a telegraph," and there fore a "telegram" within the meaning of those Acts. It was that the Legislature deliberately used language " embracing futu discoveries as to the use of electricity for the purpose of conveyin messages." At the time when this decision was given (1880) y was completely unknown. But the Court anticipated the po discovery of wireless when it said that the definitions in the Ae included under " telegraph " - " electric signals made, if such a thing were possible, from place to place through the earth or the air," a well as "a set of common bells, worked by wires pulled by the hand if they were so arranged as to constitute a code of signals" (1). 4 to the application of the Telegraph Act 1869 to " private " telepho systems, see Postmaster-General v. National Telephone Co. Ltd. (2)
The Constitution of the United States of America provides Art. I., sec. VIII., that Congress shall have power to establi "post offices and post roads." It was held in Pensacola Telegi Co. v. Western Union Telegraph Co. (3) that under this power an the power to regulate commerce with foreign nations, and a the several States, Congress could control telephonic messages. was doubtless hoped by the draftsmen of the Commom Constitution to avoid the uncertainty which led to such iti
But, in the next place, only " services " can be comprehended within the words. I have already given reasons for my view tl legislation with respect to the provision and control of broad facilities, for both transmitting and receiving, is legislation respect to a service.
Further, any service covered by the words in question must
service is a "like" service as compared with postal, teleg1 and telephonic services ?
It was suggested for the defendant that these services were when controlled by the States (and are now, when controlled by
(1) (1880) 6 Q.B.D., at p. 249. (3) (1877) 96 U.S. 1; 24 Law. (2) (1909) A.C. 269. 708.
the Commonwealth), in their nature such that all members of the H- ©. or A.
public could use them for purposes of communication and that such communications were secret or private in character. Broadcasting, on the other hand, under the system in operation in Australia, is open for use only to those who have licences for transmitting or receiving, and certainly what is broadcasted cannot be described as secret or private.
It does not appear to me to be a necessary incident of postal, telegraphic or telephonic services as such either that they should be open for use to all members of the public or that they should possess to any particular extent characteristics of secrecy or privacy. A postal service, for example, would be none the less a postal service because it could only be used, in an autocratic State, by the friends of the autocrat, or because licences or the payment of heavy fees were required before persons could use it, or because it was enacted that copies of all letters posted should be shown to a censor or even made public in some manner. Such provisions might be highly objectionable, but they would, in my opinion, be provisions with respect to "a service." Similar observations apply to telegraph and telephone services. In addition to these considerations it may be pointed out that any person who obtains the appropriate licence can transmit or receive broadcasted matter - just as anybody who buys the necessary stamps can use the post offices, and just as anybody who pays the charges imposed by law can send a telegraphic or telephonic message.
Reference has already been made to the contention that these services, in order to be services, must be the subject of public control in some sense. It has similarly been contended that likeness in method of control should be accepted as the test of likeness for the purposes of sec. 51 (v.). Thus if the Commonwealth Parliament made the control of the post office similar to that now in operation with respect to broadcasting, then it might be that the latter subject -could be dealt with by the Commonwealth Parliament as it is actually dealt with in existing legislation, because then the two services would be "like services." Alternatively, it was put that broad- casting could be made a "like service," so-as to fall within Federal legislative power, by assimilating the form of management of broad-
reference to what that Parliament elects to do with respect | . another subject, unless there is some positive direction which requit uniformity of treatment as between the two subject matters. |
am unable to find any such positive direction in the word "like." It may be added that if similarity in method of control were th
could legislate about all kinds of matters provided only that a system of control similar to that which happens to obtain in, e.g., the post office, were adopted. It is not possible to accept such a proposition. :
There are difficulties in the way of accepting the vie suggested on behalf of the defendant that the means used by tl postal, telegraphic and telephonic systems constitute the features of " likeness." It is true that both telegraphs and telephone use electric energy. So does broadcasting. But so also do transmission systems. The post office uses horses, motor ¢é ships and aeroplanes. But the power to legislate with respect t postal services cannot reasonably be said to contain a power
deal with horses &c. as separate subjects in themselves, or any system or service which also uses horses &c.
The common characteristic of postal, telegraphic and te phonic services, which is relevant in this connection is, in my opini 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 sec. 51 (v.) of the Constituti If a new form of communication should be discovered, it too be made the subject of legislation as a "like service."
It was argued for the respondent that the Common Parliament has power to legislate with respect to broadcasting under the power to make laws with respect to trade and 'om- merce with other countries and among the States (the Constitution, sec. 51 (1.)). It was put that any broadcast is necessarily inter-State
in character, or at least that any broadcast may be made inter-State H- ©. or A-
by an increase in the power, and that authority to control inter-State broadcasting must, owing to the very nature of the subject matter, necessarily and inseparably include a power to deal also with broadcasting which did not purport to be inter-State in its operation. It was also said that there was a right in the Commonwealth Parliament to protect inter-State broadcasting against interference, as an element of inter-State trade and commerce. One broad- casting station can readily interfere with another, and a defective or ill-managed receiving set can interfere with reception by other sets. Accordingly, it was said, the subject must be treated as a whole, and, if the Commonwealth Parliament had any power at all in relation to broadcasting under the trade and commerce power, the subject matter was such that that Parliament had all the power. No actual evidence was given in the Court below as a basis for the argument. though possibly what was alleged as to the nature of broadcasting may be regarded as common knowledge. I abstain from expressing any opinion upon the extent of the trade and commerce power in this direction because, in the view that I have taken, it is unnecessary to do so.
In my opinion the order of the Court of Petty Sessions was right and the appeal should be dismissed.
Ricu anv Evarr JJ. This is an appeal from a Court of Petty Sessions exercising Federal jurisdiction. The appellant was convicted under sec. 6 of the Wireless Telegraphy Act 1905-1919. The appliance which she maintained was a broadcasting receiving set. The questions raised by the appeal are whether such an instrument is within the Wireless Telegraphy Act and, if so, whether it is within the power of the Federal Parliament to penalize the possession or maintenance of broadcasting receivers. As the interpretation of the Act must be controlled or affected by the constitutional power, we proceed to express our opinion upon the second question first.
The constitutional power primarily relied upon is sec. 51 (v.) - power to make laws with respect to postal, telegraphic, telephonic, and other like services. The power was expressed in this form, we have little doubt, because of the known difficulties which had arisen in
conferred power to establish " post offices and post roads." the electric telegraph came into use the objection was made th was outside the power. The objection was answered, it is t The answer given provides one of the principles of constitution: interpretation. Waite C.J. said : "" The powers thus granted are not confined to the instrumentalities of commerce, or the postal se known or in use when the Constitution was adopted, but they pace with the progress of the country, and adapt themselves to th new developments of time and circumstances " (Pensacola Telegrapl Co, v. Western Union Telegraph Co. (1) ). But, notwithstandi this principle, the difficulty served as a warning to the framers of the Australian Constitution and accordingly they expressed them selves in terms calculated to cover developments in science an organization enabling the control of analogous and ancillary services. We do not think that it is disputed that wireless telegrap
and telephony are a means, although perhaps unthought of in by the framers of the Constitution, whereby the services des
application of wireless telegraphy or telephony to broadea falls within the power. The object of the power is to place unde Federal authority the control of distant communication carried according to a systematic plan. ;
Broadcasting, both in its means and in the fact that its purpose is the transmission of sound instantaneously. over lon distances, possesses the prominent features of telephony. at from the point of view of the public, however, it differs it
it does give is the advantage of allowing a listener with a suitabl receiving set to entertain himself with such sounds as strike his ear as pleasurable, be they musical, vocal or of any other des tion, which those operating at the transmitting station regard
(1) (1877) 96 U.S., at p. 9; 24 Law. Ed., at p. 710.
satisfying a public want. The distinction is apparent, but the ques- H- ©. oF 4-
tion is whether it takes broadcasting beyond the legislative power. In dealing with such a question it must not be forgotten that it is a constitutional power intended to provide for the future and bearing upon its face an attempt to cover unknown and unforseen develop- ments. A wide operation should be given to such a power. In the next place the description " telegraphic and telephonic " carries with it, not by derivation, but by use, a reference to electrical means of transmission of signals and speech. Broadcasting, whether conducted by private enterprise or by a governmental body, is a public service and it is telephonic in its nature. In the case of In re Regulation and Control of Radio Communication in Canada (1) the Privy Council had to deal with the application of both these words to broadcasting by radio. The question arose under sec. 92 (10) of the British North America Act 1867, which has the effect of placing under the power of the Dominion "lines of steam or other ships, railways, canals, telegraphs, and other works and undertakings connecting the Province with any other or others of the Provinces, or extending beyond the limits of the Province." It happened that ina previous case (City of Montreal v. Montreal Street Railway (2) ) an observation had been made that the ' works" in this provision were physical things, not services. When, in the Radio Case (1), the Privy Council was called on to decide whether broadcasting was within the power of the Dominion, Viscount Dunedin (3), speaking for their Lordships, said that they were of opinion that it was and fell "within both the word ' telegraphs' and the general words ' under- takings connecting'" &e. Viscount Dunedin (4) went on to say, in reference to the word " services," that 'undertaking' is not a physical thing, but is an arrangement under which of course physical things are used," thus showing that he regarded broadcasting as fairly within the expression " services." He returned to the state- ment that their Lordships thought broadcasting fell within the description of telegraphs and said : - *' No doubt in everyday speech telegraph is almost exclusively used to denote the electrical instru- ment which by means of a wire connecting that instrument with
(1) (1932) A.C. 304. (3) (1932) A.C., at p. 314, (2) (1912) A.C, 333, at p. 2
reas Tue Kiva v. Bristan ; Ex Parte Wrttrams.
H.C. or A. another instrument makes it possible to communicate sign words of any kind. But the original meaning of the word ' teleg 'Tue Kise as given in the Oxford Dictionary, is : ' An apparatus for transm
Briscan; Messages to a distance, usually by signs of some kind' " (1).
aad This very strong authority, coupled with the principles of inte aa tion and the other considerations to which we have referred, appear
Evatt J. to us ample justification for holding that wireless broadcasting telephonic service. Anything which comes within those words be within the power conferred by sec. 51 (v.), which cannot | restricted to those arrangements or systems of communics which were employed or used when the Constitution was a
Tt remains to consider whether wireless broadcasting is within: Wireless Telegraphy Act 1905-1919. According to sec. 2. wi telegraphy includes all systems of transmitting and receivin telegraphic or telephonic messages by means of electricity with a continuous metallic connection between transmitter and re The difficulty in applying the Act to broadcasting lies, in our opinio only in the use of the word " messages," which occurs also in see. | All the other expressions are appropriate. During the arg before us we had the advantage of an examination of the Bri statutes and other relevant material relating to telegraphy wireless. It is clear that the word " message' has become a a word of art in relation to telegraph and telephone services. involves no departure from the meaning of which the word naturally capable. But it does show that it is used to denote transmission of any complete communication which, so to speak forms a unit in the traffic going over a line or " the air." The ¥ has no relation to the nature of the communication. Possibly s of the things which are transmitted by broadcast cannot be brou within its fair meaning, but most of them can. In our opinion, 4 wireless receiving set is an appliance for the purpose of receiv messages by means of wireless telephony, which is included wi the statutory definition of wireless telegraphy.
For these reasons we think the appeal should be dismissed.
The prosecutor, Dulcie Williams, was charged before a stipendiary magistrate, sitting in the Court of Petty Sessions at Sydney, for that she did without authorization by or under the Wire- less Telegraphy Act 1905-1919 maintain an appliance for the pur- pose of receiving messages by means of wireless telegraphy, contrary to the Act, and she was convicted of that offence. She had on her premises an electric wireless receiver connected to an indoor aerial. The receiving equipment was capable of receiving messages or any audible sounds or matter from a wireless transmitting or broadcasting station. The rule nisi was granted upon several grounds, but the principal grounds are : - (1) That upon its true construction the Wireless Telegraphy Act 1905-1919 only prohibits the maintenance of appliances for the purpose of receiving messages by means of wireless telegraphy and not for the purpose of receiving radio broadcasts. (2) That if and so far as the Act regulates or authorizes the regulation of radio broadcasting, it transcends the Constitution.
The Act, by sec. 6, provides that no person shall, except as authorized by or under the Act, maintain or use any appliance for the purpose of transmitting or receiving messages by means of wireless telegraphy. The Wireless Telegraphy Regulations, made or purporting to have been made under the Act, regulate generally radio broadcasting and the issue of listeners' licences for stations used solely for the reception of programmes from broadcasting stations. Ordinarily, one would consider whether regulations are authorized by the Act under which they purport to have been made. But in the present case, it is advisable, I think, to determine the extent of the legislative power of the Commonwealth over radio broadcasting.
The Constitution, sec. 51 (v.), confers upon the Parliament power to make laws for the peace, order and good government of the Commonwealth with respect to " postal, telegraphic, telephonic and other like services." 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 communi tions between citizens and be private in its nature. But in m opinion the likeness of the service depends upon no such consi tions, but upon the likeness of the means by which the servi performed. Thus there is no material distinction between telegraphic and a telephonic service (Attorney-General v. Bdiso
service, communication takes place without a continuous meta i connection between transmitter and receiver. It is quite unnec
to discuss the theory of radio transmission and reception. It i sufficiently referred to in Chappell & Co. Ltd. v. Associated Radio (o.! Australia Ltd, (2) and in Buck v. Jewell-LaSalle Realty Co. (3). important matter,'' as Cussen J. said in Chappell & Co.'s Case "is that in all cases of reproduction of . . . similar sounds; a distance the modulations in the original atmospheric disturba are in a sense preserved, though manifesting themselves at variou
stages and in various media in various ways. from a legal point of view, is the decision of the Privy Council in In re Regulation and Control of Radio Communication in Canada (: Under the Canadian Constitution (British North America Act, 30: 31 Vict. c. 3), the Provinces have exclusive powers (sec. 92) to make laws in relation to local works and undertakings other thar
(sub-sec. 10). The matters so excepted become part of the ex legislative authority of the Dominion (sec. 91, sub-sec. 29). "Ne said their Lordships, "' does broadcasting fall within the exee matters? Their Lordships are of opinion that it does,
within both the word 'telegraphs' and the general ¥ "undertakings connecting the Province with any other or others the Provinces or extending beyond the limits of the Province' "(
(2) (1880) 6 @.B.D. 244. (4) (1985) V.LR., at p. 358: R, at pp. 357, 3585 , at p. 1. p. 1b. () (as ) A.C, 304.
(3) (1981) 283 U 'se at pp. 199-202 ; (6) (1932) A.C., at p. 314. 75 Law. Ed., at pp. 976-978.
In my opinion, therefore, the Constitution gives the Commonwealth H. ©. oF A-
full authority to legislate with respect to wireless telegraphy, includ- ing radio broadcasting.
The next question is how far the Commonwealth has exercised this power in the Wireless Telegraphy Act 1905-1919. The Act gives the Minister for the time being administering the Act the exclusive privilege of establishing, erecting, maintaining and using stations and appliances for the purpose (amongst others) of transmitting messages by wireless telegraphy within Australia and receiving messages so transmitted (sec. 4). Wireless telegraphy includes all systems of transmitting and receiving telegraphic or telephonic messages by means of electricity without a continuous metallic connection between the transmitter and the receiver (sec. 2). These sections may be compared with sec. 80 of the Post and Telegraph Act 1901-1923: " The Postmaster-General shall have the exclusive privilege of erecting and maintaining telegraph lines and of transmitting telegrams or other communications by telegraph within the Commonwealth and performing all the incidental services of receiving collecting or delivering such telegrams or communications except as provided by this Act or the regulations." It will be observed that the word " messages " is used in the Wireless Telegraphy Act, whereas in the Post and Telegraph Act the words are "' telegrams or other communications." But a message is a communication, and the use of the one word rather than "messages or other communications" does not suggest any special limitations of the privilege granted by the Wireless Telegraphy Act. Little difficulty seems to have been found in treating telephonic conversations as messages (see Attorney-General v. Edison Telephone Co. of London (1)). Again, in the English Wireless Telegraphy Acts 1904, 1925, and 1926 (4 Edw. VII. c. 24; 15 & 16 Geo. V. c. 67; 16 & 17 Geo. V. c. 54), the word " messages " is used in a sense wide enough to include broadcasting. Thus, in sec. 1 (7) of the 1904 Act, as amended in 1925, " wireless telegraphy " is defined to mean " any system of communication by telegraph as defined in the Telegraph Acts, 1863 to 1904, without the aid of any wire connecting the points from and at which the messages or other communications are sent
and received: Provided that nothing in this Act shall prevent an person from making or using electrical apparatus for actuati machinery or for any other purpose than the transmission reception of messages." The scope and object of the Wi Telegraphy Act, and the broad sense in which the word " me is used in connection with wireless telegraphy, lead me to the sion that the word " messages " in the Act includes the disseminatio of any sounds or audible matter, e.g., musical performances, sp &c., by means of electricity without a continuous metallic connectio between the transmitter and the receiver. The Act might well have followed the English legislation, but it is not so futile that it reg some undefined communications called messages, and leaves
broadcasting entirely unregulated and beyond the monopoly g to the Minister in the interest of the whole Commonwealth.
All that remains for consideration is the validity of the regulation By sec. 10 of the Act, the Governor-General may make regulation not inconsistent with the Act prescribing all matters which by th Act are required or permitted to be prescribed or which are ne or convenient to be prescribed for carrying out or giving effect the Act. If the construction I have given to the Act is right, nan that the Commonwealth has authority under it to control regulate radio broadcasting, then the regulations or at all ev the licensing clauses appear to be within power and perfectly v
Dixon J. The appellant was convicted under sec. 6 of tl Wireless Telegraphy Act 1905-1919 of maintaining, without authorizi tion, an appliance for the purpose of receiving messages by means
include all systems of transmitting or receiving telegraphic 0 telephonic messages by means of electricity without a continuous metallic connection between the transmitter and the receiver. the appellant was in fact maintaining was an ordinary wi broadcasting receiving set.
The contentions advanced in support of her appeal are upon its proper interpretation the section under which she ¥ charged does not extend to broadcasting receiving sets and that,
it does, it is to that extent invalid because the power conferred H.C. oF A.
upon the Parliament by sec. 51 (v.) of the Constitution to make laws with respect to postal, telegraphic, telephonic and other like services, does not cover broadcasting and there is no other power within which the provision can be brought.
In my opinion, the first of these contentions is well founded and to maintain a broadcasting receiving set for use in the ordinary manner is not an offence against sec. 6 of the Wireless Telegraphy Act 1905-1919. The second contention involves the long standing question of the power of the Commonwealth over broadcasting. From the beginning of broadcasting the difficulty which exists in bringing it within the legislative power of the Commonwealth has been well understood, but the Wireless Telegraphy Regulations governing it have hitherto enjoyed an immunity from attack which suggests a general acquiescence almost in the Commonwealth's assumption of the power. The difficulty, of course, lies in regarding broadcasting for general amusement, information, instruction, or edification, as a service which forms part of, or is like, postal, telegraphic and telephonic services. A similarity undoubtedly exists between the appliances used, on the one hand, in telegraphy and telephony and, on the other, in wireless broadcasting. But it is said that the likeness to which the Constitution refers is to be found in the character of the service performed for the public and not in the mechanical or electro-magnetic nature or basis of the instruments employed for the purpose.
The present would appear to me to be anything but a suitable occasion for deciding this important constitutional question, if the opinion of the majority of the Court were adverse to the power. No one has thought fit to raise it in the interests of the States, which, apparently, are well content to suffer the Commonwealth to exercise the power. In the United States of America broadcasting by wireless has been held to fall within the power over inter-State commerce (Federal Radio Commission v. Nelson Brothers Bond & Mortgage Co. (1) ). If, therefore, a Commonwealth statute dealing with broad- casting were enacted on the basis of the power with respect to trade and commerce between the States, some support might be found to
(1) (1933) 289 U.S., at p. 279; 77 Law. Ed., at p. 1175. ,
exist, independently of sec. 51 (v.), for the Federal claim to o the entire subject. But the Wireless Telegraphy Act 1905-1 not based in any way on the commerce power and, in my opinio cannot be considered as a law with respect to the subject matt er that power. The question has long been left in suspense and, if
Ihave already stated, namely, that the ordinary use of a broadea receiving set is not within the prohibition contained in sec. 6 (1) ¢ the Wireless Telegraphy Act. As it is, I shall give my reasons f that conclusion and then state very shortly why, in my opini wireless broadcasting is not within the subject matter of sec. 51 The provision applies only when the purpose exists of transmit or receiving messages by means of wireless telegraphy. It may that the means employed come within the words forming part « the definition of wireless telegraphy - " by means of electricity without a continuous metallic connection between the transmitte and the receiver." Nevertheless I do not think broadea programmes constitute or contain " messages." This word ap to me to mean a communication sent to one definite person by another. It does not mean matter in the form of speech or 0 sounds disseminated indiscriminately among the public who, equipped with the mechanical means, desire to hear it. F listener's point of view, a wireless receiving set may be regarded a mechanical means of extending the range of natural he: restricted to sounds which at the place of emission have | mechanically dealt with so that they may be so heard. The word " broadcast" is used because the sounds are addressed to al who have thus extended their range of hearing by an appropriat appliance. Its meaning involves publicity. The exp "transmit and receive a message" could not, I think, be ap to a speech delivered at a gathering through amplifiers by a spe a great part of whose audience was beyond the natural range ' hearing. But when a speech is broadcast, the operation differs 0 in the fact that the listeners are not congregated together
without television, cannot see the speaker. In the Act the word H.C. or a. 1935. Ww
"message" is, I think, appropriate only to individual communica- tion. In saying it means a communication to one definite person by another, I do not mean to exclude messages which are simul- taneously despatched to many. Each of these is in fact a separate message although identical in expression with the others. Nor do I mean to emphasize the singular in the "' one" and the " other." 'The senders may be a body or collection of people, and the recipients may be a body or collection of people. The difference is between definite individuals and a form of public performance, recital, or utterance.
It may be objected that by the licensing system broadcast listeners are defined and, although a multitude, they are definite individuals. The objection rather misses the substance of the distinction. But, in any case, it is not to the point, because it is not licensed but unlicensed reception that must be considered in determining what is prohibited under the word " message."
It is not surprising if sec. 6 of the Act does not cover broadcast reception. It was passed in 1905 before broadcasting commenced. Of course a communication sent by radio could be picked up then, as now, by anyone with a suitable receiver. But the object of the Act was to regulate uses of wireless for purposes of communication like the telegraph and telephone. It was for that reason that the word "message" was employed as part of the definition of the offence. It was for that reason also that unauthorized appliances were made forfeit to the Crown by sec. 7.
The Wireless Telegraphy Act is a law with respect to postal, telegraphic, telephonic, and other like services, enacted in the exercise of the power conferred upon the Parliament by sec. 51 (v.) of the Constitution. Upon the construction which I have placed upon the statute, there is, I think, no doubt of its validity. But, as I have already said, I am unable to concur in the opinion that the power is wide enough to include wireless broadcasting and to support the statute if, upon its proper interpretation, it authorizes Part IIL. of the Wireless Telegraphy Regulations 1924-1934, which deals with broadcasting.
The grant of power contained in sec. 51 (y.) is expressed in a form plainly adopted in order that it should include every present future mode of performing the services called postal, telegrap and telephonic. The feature which the services, so described possess in common is that they supply an organized means of enablir people at a distance to communicate one with another either writing or by word of mouth.
The object of the postal service is to provide a system by whiel a missive may be dispatched by one person and delivered to anoth The missive is not necessarily a written message. It may journal or a book or any physical thing susceptible of trans1 through an organization ready to undertake the task of receivi articles from individual senders, transmitting them and deliv them to individual addressees. In postal services the phy identity of the missive is preserved.
A telegraphic service resembles the postal service in providing system by which a communication may be sent by one person fo delivery to another separated from him by distance. But rapidity of transmission is obtained by the use of signals, at first mechanical, but, later, electro-magnetic. This means that the contents of the message are repeated. Perhaps the characteristics which differentiate a telegraph from a postal service are the greater expedition of th telegraph, its limitation to messages and the fact that the m is reproduced and not conveyed in its original material form.
A telephone service provides an inter-related system for ot communication at a distance. It depends, so far at any rate, the reproduction of sound by electro-magnetic devices. Its p is to enable a definite person obtaining access to an instrument at @ fixed point to interchange spoken communication at a distance wi another definite person having access to another such instrume
They are all services because they consist in an established organized for the purpose of performing a function to satisfy demands of the members of the community. The demand they g0 to satisfy in common is for means of interchanging intelligence a distance. The primary requirement of the community they fulfil is for a method by which an individual who desires to communicate with another at a distance may dispatch and have delivered to him
his message, or establish direct oral communication with him. No doubt the need of receiving communications, if sent, is an important
want of acommunity. The two things are mutual. But the abi
of the individual to originate the communication received is the first condition. The expression "other like services" covers, I should think, every system or organized process of furnishing means of individual inter-communication, notwithstanding that, at the time when the Constitution was adopted, it was undiscovered and unthought of. The power, of course, extends to everything which is incidental or arises out of the main purpose or its fulfilment. Moreover, although almost from their respective beginnings these services have in Australia been conducted by Government, that is not an essential characteristic.
Electric telegraph and telephone serv: or wireless. Wireless is used in broadcasting, and broadcasting includes the transmission of speech to a distance. It affords an advantage to the public by an organized system and, therefore, may be called " a service." But here, in my opinion, the points of resem-
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. It appears to me to be outside the scope and purpose of the power. It is said that carrying on such an operation performs a service to the public and that, according to high judicial authority, the adjective "telegraphic " may be applied because the means adopted is wireless telephony and "telephony" is included in "telegraphy." This does not meet the difficulty. It takes each of the two words "telephonic" and "service." It applies each of them in a manner differing from that in which they are used in sec. 51 (v.). It then combines them and requires the combination to serve the
purpose of including a quite different thing. The expression VoL. EIv. 20
known category of public services which, in my opinion, definite characteristics. The addition of the expression " ot} like " services emphasizes the fact that the category looked to tho characteristics. In my opinion altogether different character belong to wireless broadcasting.
For these reasons I think the appeal should be allowed.
McTiernan J. I agree that this appeal should be dismi
Since the decision of the Judicial Committee in In re Regulati and Control of Radio Communication in Canada (1) the view mu be accepted that broadcasting as established and regulated by regulations, made pursuant to the Wireless Telegraphy Act 190: 1919, may be classed with telegraphic and telephonic services. follows from this decision that sec. 51 (v.) of the Constitution upo its true interpretation authorizes Parliament to legislate with respec to the service of broadcasting. (See also Attorney-General vy. Edison Telephone Co. of London (2) and Attorney-General for New S¢ Wales v. Brewery Employees Union of New South Wales (3), Griffith C.J., and cf. Halsbury's Laws of England, 1st ed., vol. p- 350.)
But it is said that the provisions of the Wireless Telegraphy de do not authorize the making of regulations with respect to bi casting, as the scope of the Act is limited to systems of transmittin and receiving telegraphic or telephonic messages by means | electricity without a continuous metallic connection between transmitter and the receiver (see sec. 2 of the Wireless Telegrap Act 1905-1919). This contention depends on the view that transmission of such messages does not include broadcasting of programmes such as are provided for by the regulations. In opinion it is quite in accord with common usage to describe the transmission by radio of sounds representing such programmes a the transmission of messages. The word "messages" in Wireless Telegraphy Act 1905-1919 was not intended to have
(1) (1932) A.C. 304. (2) (1880) 6 Q.B.D. 244. (3) (1908) 6 C.L.R., at p. 501.
meaning more limited than it usually bears when applied to the H-C. oF A- 985, subject matter of wireless telegraphy and telephony. re
Appeal dismissed. The appellant to pay costs of Brusia
the High Court but not of the subsequent = - - further argument.
Solicitor for the appellant, 7. F. Williams. Solicitor for the respondents, W. H. Sharwood, Commonwealth
Fy Bete & op he bee ee ela Me" om fer ae mane Sto! dba nome Bur yne
AMALGAMATED ZINC (DE BAVAY'S) LIMITED - Appettant ;
Income Tax (Oth.) - Assessment - Deductions - Compulsory contributions to fund - yy C, or A, Fund for benefit of taxpayer's employees - Tarpayer's business discontinued - yg, Obligation to contribute to fund continuing - Outgoings "actually incurred in a gaining or producing the assessable income" - Loss made 'in carrying on a MetBourNe, business" - Income Tax Assessment Act 1922-1934 (No. 37 of 1922 - No. 51 of Ne 1934), secs. 23 (1) (a), 26. De
Latha A company carried on a business in which it employed workers who came {ich
within the Workmen's Compensation (Broken Hill) Act 1920 (N.S.W.), so that ,DiXGh. Evatt the company was obliged to contribute to the compensation fund established ce under that Act. The company discontinued its business, but remained liable
to make, and made, payments to the fund in subsequent years. The company
claimed to deduct the amount of these payments from its assessable income.
Its income, after it had discontinued the business, was derived solely from
Appeal dismissed. The appellant was ordered to pay the respondents' costs of the appeal, including the costs of the first High Court hearing but not the subsequent further argument.