R v Brislan [1935] HCA 78

R v Brislan [1935] HCA 78 - HCA 1935 case summary — Zoe

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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.

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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-

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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

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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

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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

At a glance

Court

Decision date

Before

Source

Judgment (187 paragraphs)