Opinion Number. 155

Subject

TELEGRAPHIC AND TELEPHONIC SERVICES WHETHER RECEIPT BY PRIVATE COMPANY OF MESSAGES FOR TRANSMISSION BY TELEGRAPH INFRINGES EXCLUSIVE PRIVILEGE OF POSTMASTER-GENERAL

Author
Key Legislation

POST AND TELEGRAPH ACT 1901, ss. 3,80

Date
Client
The Postmaster-General

The Postmaster-General:

The Postmaster-General asks to be advised on the questions raised in the following memo by the Secretary, Postmaster-General's Department:

The accompanying papers contain a report by the Deputy Postmaster-General, Sydney, to the effect that many New South Wales business firms and others send and receive telegrams through the Sydney agency of Reuter's Telegram Company Ltd, and that it is said the Company allows its patrons to use code addresses without extra charge, besides allowing them a small rebate in the case of messages for the United Kingdom.

An advertisement from the Melbourne Age of 21-8-1903 is also attached, which shows that the Company offers to register telegraphic addresses without charge.

The Deputy Postmaster-General, Sydney, points out that the Company has for a number of years carried on the business of receiving telegrams for transmission and delivery, and raises the question whether, as section 80 of the Post and Telegraph Act 1901 secures to the Postmaster-General the exclusive right (with certain exceptions which would not affect or include Reuter's Telegram Company) of transmitting telegrams within the Commonwealth and performing all the incidental services of receiving, collecting and delivering such telegrams, the business conducted by that Company is not one which illegally competes with that of the Postmaster-General's Department.

The matter is therefore submitted for the favour of the advice of the Attorney on both points referred to herein, namely-(1) the legality or otherwise of Reuter's Telegram Company Ltd carrying on the business mentioned, and (2) whether that Company is not infringing the regulations made under the Post and Telegraph Act 1901 (No. 1 on page 257 and No. 13 on page 261 of the Gazette copy of such regulations) by registering telegraphic addresses free of charge.

As regards No. 1 the question for decision appears to be principally one of definition, that is: Are the papers handed in to Reuter's Company telegrams? Are the messages that Company delivers telegrams? Does the receiving by the Company of business for transmission by telegraph, and the forwarding of such business in collective telegrams, amount to 'collecting' within the meaning of section 80 referred to?

My opinion upon these questions is as follows:

  1. I understand that the business of the Company is to receive messages for transmission as telegrams, and to code them, and transmit them as telegrams to its agents in different parts of the world for delivery to the addressees; charging for the services rendered, and of course transmitting the telegrams through the Postmaster-General's Department at the prescribed rates.

    This is not an infringement of the Postmaster-General's exclusive privilege, under section 80 of the Post and Telegraph Act 1901, of transmitting telegrams or other communications by telegraph, and performing all the incidental services of receiving, collecting, or delivering such telegrams or communications.

    The message delivered to the Company at (say) Sydney, for transmission by the Company as a telegram, is not a 'telegram' as defined by section 3 of that Act, and is not a telegram or communication by telegraph within the meaning of section 80. And conversely, the messages delivered by the Company in Sydney are not such telegrams or communications. Nor are the services so rendered by the Company 'the incidental services of receiving collecting or delivering such telegrams or communications'.

    The Company, for reward, receives messages for transmission by telegraph, sends and receives telegrams, and communicates the messages which it receives to the persons for whom they are intended. It delivers the telegrams to, and receives them from, the Postmaster-General's Department, which performs all the incidental services of receiving, collecting, and delivering the telegrams, and which is paid the prescribed rates for those services.

    It could not for a moment be contended that a newspaper proprietor, who receives news by telegraph and publishes it to his subscribers-or any inquiry agent, who at the request of his clients employs the telegraph in obtaining information, for which he is paid-infringes the Postmaster-General's exclusive privilege. The business of the Company is exactly analogous.

  2. The registration by the Company, at its different agencies, of telegraphic addresses-whether free of charge or not-is not an infringement of the Postmaster-General's exclusive privileges, and is not a breach of the Act or Regulations. It merely means that the Company, which sends and delivers telegrams, compiles a private code of its own, indicating the persons to whom the news which it transmits by telegraph, is to be communicated. This is merely an exercise of the right of sending code telegrams-a right which the Act and Regulations give to the Company in common with every other sender of telegrams. It may be that the effect is to diminish the revenue of the telegraph office, which charges a fee for the registration of addresses with the office; but it involves no breach of the law as at present in force.

[Vol. 4, p. 32]