Opinion Number. 1606

Subject

Posts and telegraphs application to Postmaster-General’s Department of state legislation prohibiting communication of information related to gambling: application of state legislation to commonwealth: inconsistency

Key Legislation

Suppression of Gambling Act 1895 (Qld) ss 19, 20, 20A, 21c, 20: Post and Telegraph Act 1901 ss 96, 97(a): Telephone Regulations 1927 reg 63: Constitution s 109

Date
Client
The Director-General of Posts and Telegraphs

The Director-General, Posts and Telegraphs, has forwarded the following memorandum to me for advice:

  • Attention is invited to Act No. 24 of 1936(1) of Queensland, assented to on 3.12.1936, in regard to the suppression of certain betting activities.
  1. Section 19 prescribes that any person who sends any sign relating to any place being open for the purpose of making bets or with the intention of inducing persons to resort to such places shall be guilty of an offence, while in accordance with section 20 any person who sends any telegram relating to betting advertising is also liable to a penalty.
  2. Section 21 stipulates that no place shall be used for the purpose of conveying therefrom during any time a race meeting is being held on a racecourse to a person not on such racecourse certain information regarding activities on the racecourse. Section 21 also provides that no person shall convey or attempt to convey from any racecourse to any person not on a racecourse certain information concerning the conduct of horse races.
  3. The communication activities of the Postmaster-General’s Department include the acceptance, transmission and delivery of telegrams and the provision of telephone channels for conversations relating to horse-racing throughout the Commonwealth. For this purpose telegraph offices and telephone booths are established at the larger racecourses and, in the former case, skilled manipulative staffs are made available on race days.
  4. Officers of the Postmaster-General’s Department also enter upon racecourses for the purpose of providing and maintaining facilities enabling the Australian Broadcasting Commission to broadcast by radio. Facilities are also provided for licensed broadcasting stations.
  5. In view of the comprehensive character of the Queensland legislation, the question is raised as to the precise effect of the new Act upon the communication activities of this Department in that State and, as the matter appears to be one largely of construction of law, perhaps you will kindly furnish advice, particularly on the following points:
    1. Does the Queensland Act over-ride the powers conferred upon the Postmaster-General under the Post and Telegraph Act 1901–1934 in so far as these relate specifically to the classes of communication covered by the former;
    2. To what extent, if any, would the continued provision of public telegraph, public telephone and broadcasting facilities, both within and beyond the precincts of racecourses in Queensland, be in violation of the State Act;
    3. Are Post Office employees of different designations engaged on race duties, both within and beyond the precincts of racecourses in Queensland, liable under the punitive clauses of the State Act;
    4. What Commonwealth measures, legislative or otherwise, are practicable or advisable in order to protect the operatives of this Department engaged on duties associated with racecourse communication and to permit a continuance of the services referred to;
    5. Pending mature consideration of all the implications involved in the new enactment, what steps, if any, should be taken by the Department in the interim.
  6. The only Federal authority under which a telegram may be refused by the Department’s officers at the present time is that contained in section 96 of the Post and Telegraph Act 1901–1904. Attention is also invited to Telephone Regulation 63 which defines any action taken in connection with the illegal or improper use of telephone services.
  7. Heavy losses in telephone traffic in Queensland since the new Act was assented to have been brought under notice and the favour of advice at the earliest practicable moment will be greatly appreciated.
  8. In view of its urgency, this matter formed the basis of a brief discussion, by telephone, between the Chief Inspector (Telegraphs) and Mr. Boniwell, Assistant Secretary, on 24th December. It is understood that Mr. Boniwell would have no difficulty in securing a copy of the Queensland Act. If difficulty is experienced in this connection, however, a copy can be loaned from this office.

The questions upon which advice is asked raise points of law somewhat similar to those upon which I advised in Opinions Nos. 154(2) and 156(3) of 1932.

The provisions of the Suppression of Gambling Acts, 1895 to 1936 of Queensland, so far as they affect the Postmaster-General’s Department, may be summarised as follows:

  1. Section 20 makes it an offence to send any letter or telegram relating to betting.
  2. Section 20A makes it an offence to open, keep or use a place for the purpose of conveying therefrom information relating to a horse-race.
  3. Section 20C makes it an offence to communicate from a racecourse information as to a horse-race on that racecourse.

It will be noticed that I have not referred to section 19, the provisions of which do not appear to me to affect in any substantial degree the activities of the Post Office. The provisions of sections 20, 20A and 20C are, prima facie, a valid exercise of the legislative power of the State and bind every person in Queensland including postal officials and persons having business with the Post Office. It is, however, necessary to inquire whether, and to what extent, the provisions of the State law are invalidated by the provisions of the Commonwealth Constitution.

The contention that the States have no power to affect Commonwealth instrumentalities or Commonwealth officers based on some prohibition, expressed or implied, in the Constitution cannot, since the Engineers’ case (28 C.L.R. 129), be supported. Any immunity from the Queensland law must arise from the inconsistency of the law with some law of the Commonwealth, coupled with section 109 of the Constitution, which provides that ‘when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid’. If there is no Commonwealth law inconsistent with the State law, the operation of the State law is not affected.

It is necessary, therefore, to examine, each relevant provision of the Queensland law in order to ascertain whether there is any Commonwealth law with which it is inconsistent.

Section 20 of the State Act, which makes it an offence to send any letter or telegram relating to betting, is, in my opinion, so far as it applies to telegrams, capable of application both to the person lodging the telegram for transmission and to the officer transmitting it. I have been unable to find any express provision in the Post and Telegraph Act or the Regulations that a person may lodge for transmission a telegram relating to any matter whatsoever, nor can any such provision, in my view, be implied. The result, therefore, is that the section operates to prevent persons from lodging for transmission telegrams relating to betting.

I have not been able to find any express provision requiring officers to transmit telegrams handed in for transmission, but I think it may reasonably be implied that an officer whose official duty consists of transmitting telegrams is bound, subject only to section 96 of the Act, to transmit all telegrams without regard to their contents. Section 20 does not, therefore, apply to officers transmitting telegrams.

With respect to letters, the position is I think, somewhat similar, and the right of the public to send letters is qualified by section 20. I do not think, however, that a postal official who handles a letter in the course of its transmission by post can be said to send the letter, and the section would not, therefore, apply to such an official.

With respect to section 20A of the State Act, which makes it an offence to open, keep or use a place for the purpose of conveying therefrom information relating to a horse-race, I have been unable to find any regulation made in exercise of the power conferred by paragraph (a) of section 97 of the Post and Telegraph Act to provide for the establishment and management of post offices and telegraph offices. There does not, therefore, appear to be in existence any law empowering the establishment of such offices. It may be argued that such a power is implicit in the Act, but, in view of the paragraph referred to, it is doubtful whether any such implied power exists–expressum facit tacitum cessare.

If, therefore, a post office or telegraph office on a racecourse is opened, kept or used for the purpose of conveying therefrom information relating to horse-races the State Act appears to apply, because there is no Commonwealth law authorising the opening or keeping of post offices or telegraph offices with which the State law could be inconsistent.

This position could be remedied by making Regulations in exercise of the power conferred by paragraph (a) of section 97.

Turning finally to section 20C of the State Act, under which it is an offence to communicate from a racecourse information as to a horse-race on that racecourse, it will be seen that, so far as letters and telegrams are concerned, the position is similar to that under section 20. This section also applies to communications by telephone and, in the absence of any provision authorising conversations generally, my view is that the limitation imposed by the State Act must be observed.

It will be noted that the State Act is not expressed to bind the Crown. ‘The King’–to quote the words of Higgins J. in Pirrie v. McFarlane (36 C.L.R. 170, at p. 218) –‘in his State capacity is presumed not to mean to bind himself but in a State Act no such presumption arises as to Federal servants–servants of the King in his Federal capacity’. Federal servants, therefore, do not share the immunity of State servants from the operation of the Act.

It will also be noted that sections 20, 20A and 20C, in so far as they relate to letters and telegrams to be sent from Queensland to another State, are a limitation on the freedom of commerce and intercourse among the States and to that extent they may be inconsistent with section 92 of the Constitution and invalid accordingly. Any such invalidity, however, would be limited to the operation of the sections with respect to interstate commerce and intercourse and would not affect their operation with respect to intrastate commerce and intercourse.

The precise scope and effect of the Queensland Act having been examined, it is now possible to answer the specific questions submitted for advice.

Question (a)

No State Act can take away powers conferred by a Commonwealth Act. The difficulty in the present case is to ascertain exactly what powers have been conferred on the Postmaster-General by an Act which appears not to provide adequately for all the activities of the Department.

Question (b)

It is an offence against section 20A of the State Act to open, keep or use a post office or telegraph office for the purpose of conveying therefrom information relating to a horse-race. This position can, as pointed out above, be remedied by making suitable regulations under the Post and Telegraph Act.

Question (c)

Their duties do not appear to be such as to constitute any offence against the State Act.

Question (d)

The Commonwealth has power to over-ride any provisions of the State Act which interfere with the activities of the Department by enacting legislation inconsistent with those provisions.

It is, however, as I pointed out in my Opinion No. 156 of 1932, a question of policy whether any such legislation should be passed. My view is that the power to over-ride State laws should be exercised sparingly and only in cases where the necessity to do so is great. The matter is one which is suitable for discussion at a Conference of Commonwealth and State Ministers before any action is taken.

Question (e)

It is, in my opinion, very desirable that Regulations under paragraph (a) of section 97 of the Post and Telegraph Act should be made providing for the establishment and management of post offices and telegraph offices, apart altogether from the questions that have arisen out of the operation of the Queensland Act.

[Vol. 30, p. 1]

(1) The Racecourses Acts and Other Acts Amendment Act 1936 (Qld).

(2) Opinion No. 1522.

(3) Opinion No. 1523.