Opinion Number. 1453

Subject

Wireless Telegraphy validity of the Wireless Telegraphy Act: whether wireless telegraphy is included within meaning of words ‘postal, telegraphic, telephonic, and other like services’

Key Legislation

Wireless Telegraphy Act 1905: constitution s 51(v)

Date
Client
The Secretary, Postmaster-General

The Secretary, Postmaster-General’s Department, has forwarded to me for advice the following memorandum:

  • During proceedings in the Police Courts recently in Sydney and Melbourne, instituted by this Department against persons operating wireless receivers without a licence, the question of the validity of the Wireless Telegraphy Act was raised.
  1. In Sydney, the Police Magistrate intimated that his decision to dismiss the case was not caused by the point raised by Mr. Clive Evatt, but in Melbourne on 8-7-29, Mr. Freeman P.M., in imposing a fine of £2 said that pending a decision by the High Court as to whether the Wireless Telegraphy Act was ultra vires, he would order a stay of proceedings for one month.
  2. You will appreciate the importance of the matter to this Department, especially in view of the publicity already given to the point raised in the Sydney Courts, vide ‘Daily Guardian’ of 4.7.29.
  3. The question of the validity of the Act has already been represented to you on other occasions but in view of the publicity which has now been given to the matter, and its importance generally, I am directed to ask if you will be good enough to advise the Secretary on the matter.

In my opinion, the Wireless Telegraphy Act 1905–1919 is a valid exercise of the powers of the Commonwealth Parliament which are derived from placitum (5) of section 51 of the Constitution. The question as to whether wireless telegraphy could be included within the meaning of the words ‘postal, telegraphic, telephonic, and other like services’ is dealt with by Griffith, C.J. in Attorney-General for NSW v. Brewery Employees Union, 6 C.L.R. at page 501 in the following words:

The Parliament cannot enlarge its powers by calling a matter with which it is not competent to deal by the name of something else which is within its competence.

On the other hand, it must be remembered that with advancing civilization new developments, now unthought of, may arise with respect to many subject matters. So long as those new developments relate to the same subject matter the powers of the Parliament will continue to extend to them. For instance, I cannot doubt that the powers of the legislature as to posts and telegraphs extend to wireless telegraphy and to any future discoveries of a like kind, although in detail they may be very different from posts and telegraphs and telephones as known in the nineteenth century. An instance of a quite different kind of subject matter is immigration, the meaning of which term cannot alter, however the methods of bringing persons within the geographical limits of the Commonwealth may be extended.

[Vol. 24, p. 401]