Opinion Number. 1523


posts and telegraphs interference by state police with persons lodging telegrams apparently related to gambling and illegal under state law: whether offence of wilfully obstructing course of business of post office or telegraph offiCe

Key Legislation

post and telegraph act 1901 s 119: LOTTERY AND GAMING AMENDMENT ACT 1928 (SA): CONSTITUTION s 52

The Secretary, Postmaster-General

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

Your attention is invited to the attached papers relative to the South Australian police interfering with persons intending to lodge telegrams.

As will be seen from the papers, the action of the police has been taken under the provisions of the Lottery and Gaming Amendment Act 1928. It does not appear that any action can be taken to prevent police authorities from interfering with any persons suspected of carrying on any illegal business even if the person be accosted in the public space of a telegraph office.

Perhaps you will favour me with your opinion on the matter after a perusal of the papers?

A memorandum of the Deputy Director, Posts and Telegraphs, Adelaide to the Secretary, Postmaster-General’s Department reads as follows:

I have to advise that on 5/5/32 ‘The Advertiser’ newspaper published a report of police proceedings following the arrest of a man in the telegraph office at the Murray Bridge racecourse on the previous day. Departmental investigation showed that on 4/5/32 during a race meeting being held at Murray Bridge a member of the public, A.B.C., was arrested in the public space of the racecourse telegraph office on the ground that he was on the racecourse for the purpose of betting except by means of a totalisator. When arrested C. had in front of him on a counter a telegram form on which numbers and words were written. But for the Police intervention the form would probably have been tendered by C. as a telegram for transmission. The form was not handed however to any officer of this Department.

As the Police action appeared to constitute unwarranted intervention between the Department and a person engaged in a transaction with the Department, the Commissioner of Police was communicated with on 6/5/32 requesting advice as to the facts of the case. The Commissioner replied on 12/5/32 practically substantiating the newspaper report and amplifying certain particulars.

On 20/5/32 I informed the Commissioner that the Postmaster-General’s Department is obliged in the performance of its functions to provide telegraphic facilities where necessary and to accept telegrams conforming to the Commonwealth Telegraph Regulations; also that a person who in the telegraph office is in the act of writing a telegram for despatch is engaged in a transaction with the Department. The Commissioner was asked to give an assurance that his officers would not again intervene. On 26/5/32 the Commissioner replied informing me that persons having legitimate business with the Postmaster-General’s Department have no reason to fear Police action.

On 10/6/32 the Commissioner of Police was again communicated with and notified that on 4/6/32 a reputable citizen of Adelaide was accosted by Police Officers when writing a telegram at the G.P.O. Adelaide, and that the Police Officers departed after satisfying themselves that it was not a betting telegram. The Commissioner was also informed that two Plain Clothes Police Officers had loitered in the vicinity of public telephone cabinets at the G.P.O. evidently for the purpose of overhearing telephone conversations. I complained that persons engaged in perfectly legitimate transactions with the Department were being hampered, and I asked for an assurance that no further intervention would occur. To this letter no reply has yet been received.

For your further information copies of communications are attached as follows:

Report from District Inspector, Murray Bridge dated 6/5/32.

Letter to Commissioner of Police, Adelaide dated 6/5/32.

Reply from Commissioner of Police, Adelaide dated 12/5/32.

Letter to Commissioner of Police, Adelaide dated 20/5/32.

Reply from Commissioner of Police, Adelaide dated 26/5/32.

Letter to Commissioner of Police, Adelaide dated 10/6/32.

As it is very desirable that the Department’s legal position in cases such as those mentioned in this correspondence should be clearly defined, the matter is forwarded for your information and advice.

I do not think that the Post and Telegraph Act or the regulations made thereunder would authorize the Postmaster-General to take any steps to prevent the police authorities from acting in the manner as stated in the file. I can find nothing that indicates that the police acted in any way contrary to law.

The only section of the Post and Telegraph Act under which the action of the police might be an offence is section 119. That section provides that any person who whilst in a post office or telegraph office wilfully obstructs the course of business of the post office or telegraph office or of the Department shall be liable to a penalty not exceeding ten pounds.

I do not think, however, that the conduct of the police in any of the cases referred to would constitute an offence under the section. The reports relating to the arrest of A.B.C. do not reveal any evidence that the police officers who arrested him obstructed the course of business of the post office in any way. It would appear, moreover, that C. stated in the Court proceedings that the police officers asked him in the telegraph office what he was doing there. He replied that he was sending a telegram for a friend and at the same time handed the message to them. In this connection I would refer to the letter of 10/6/1932 from the Deputy Director, Posts and Telegraphs to the Commissioner of Police, Adelaide, in which it is stated that the police officers in the General Post Office, Adelaide asked the person writing the telegram to show them the message. The person concerned could, of course, have refused to comply with such a request.

If actual obstruction by the police is proved proceedings against the police officer concerned could be instituted. But it is doubtful if more than a nominal penalty would be inflicted in view of the fact that it would seem that the persons sending the telegrams are engaged in betting transactions which might be offences under State law. In C.’s case, the defendant was fined £2 for unlawful betting.

If thought fit, it would be possible, under the authority of section 52 of the Constitution, to pass legislation preventing interference with any person who is on Post Office premises for the purpose of doing business with the Post Office.

It is a matter of policy, however, whether or not any Commonwealth legislation should be enacted which might interfere with State Police carrying out their functions under State legislation. It would appear that the only ground upon which this would be justified would be the protection of the business of the Post Office from obstruction.

[Vol. 25, p. 949]