The Secretary, Postmaster-General’s Department, has forwarded me the following memorandum asking me to reconsider my opinion No. 103 of 1934.

The opinion conveyed in your memorandum of 20 July, No. 103/1934,⁽¹⁾ indicates that the Commonwealth at the moment possesses no right of control over the establishment and operation of any service associated with television and still-picture transmission activities, conducted by private enterprise within the Commonwealth or between the latter and other countries.

In such circumstances chaotic conditions must inevitably arise since services of this character may be established throughout Australia without any overriding control in the public interest. The Government will thus be placed in an untenable position.

There is not unanimity of opinion that a facsimile cannot be regarded as a message within the meaning of clause 5 of the Wireless Telegraphy Act 1905–1919, and it would be appreciated if you would kindly review the opinion already expressed, on the ground that intelligence conveyed in either verbal or written form may in many instances be conveyed by means of picture equivalents. It must be borne in mind moreover, that television and still-form images are not electrically transmitted as a picture, but by means of a series of independent signal impulses, and to this extent the method is practically similar to the electrical transmission of messages lodged in written or printed form at the originating point.

The Department has already issued experimental licences to certain persons, thus authorising them to conduct experimental television transmissions, on the ground that the Postmaster-General possesses unfettered rights under the Statute to control such activities, and it is suggested that, quite irrespective of the legal aspect, licences for the proposed Beam facsimile service and other similar developments, should be issued or withheld by the Department on the assumption that the right of the Commonwealth so to do is unquestionable, any action to secure amending legislation, and if eventually found necessary, a modification of the Constitution, being deferred for review if and when such a right is challenged.

In the case under notice radiotelegraph stations at Ballan and Rockbank, which will be utilised for the conduct of the service, have already been licensed under the Wireless Telegraphy Act to conduct a radiotelegraph service. A copy of the licence which was granted on 12.4.1927 in accordance with the draft approved by you, is attached. It therefore appears reasonable to make use of that licence for the desired purpose of maintaining the Department’s authority.

It is proposed to attach memorandum to the existing licence in the following terms:

I am directed to inform you that the Postmaster-General has approved that the phototelegram service between Australia and England may be conducted by the wireless stations at Ballan and Rockbank, already licensed to conduct the existing overseas radiotelegraph service by Special Licence No. 18 dated 12.4.1927.

Perhaps you will kindly furnish an early opinion on the proposed procedure, enabling the projected overseas photo telegram service to be brought into operation.

In opinion No. 103 of 1934 I advised that section 6 related only to ‘messages’ transmitted by wireless telegraphy, and that an ‘image’ could not be regarded as a ‘message’. The transmission of images was not, therefore, prohibited. This conclusion was apparently in agreement with the Department’s view (see paragraphs 6, 8 and 9 of memorandum dated 20 July 1934).

I have been unable to find any decided case in which the meaning of the word ‘message’ is referred to. The word is, however, defined by the Oxford English Dictionary as follows:

A communication transmitted through a messenger or other agency; an oral or written communication sent from one person to another; also, intelligence, tidings, news.

It would, I think, be straining the meaning of ‘message’ to advise that it included a picture or series of pictures, and I am unable to alter my previous opinion.

I have not overlooked the fact that pictures are not transmitted as pictures, but as a series of electrical impulses. But what section 5 refers to is the matter which is transmitted and not the manner of its transmission.

Whether the Department will issue licences to conduct television transmissions in the absence of any legal power to do so is a matter of policy for the Department to decide.

It may be useful to point out, however, that unless any station or appliance is used solely for the transmission of images, and not for transmitting messages in addition, a licence for that station or appliance is necessary.

As, in my opinion, the transmission of an ‘image’ is not the transmission of a message within the meaning of the Wireless Telegraphy Act, I advise that the Postmaster-General has no legal authority to licence any Station for the conduct of a phototelegraphic service and that the proposal with regard to the Ballan and Rockbank Station does not rest on any legal foundation.

[Vol. 27, p. 574]

(1) Opinion [Vol. 27, p. 352] not published.