censorship of telegrams POWER OF COMMONWEALTH TO censor and STOP TRANSMISSION OF TELEGRAMS IN TIME OF WaR OR STATE OF EMERGENCY OR TENSION
Telegraph Act 1909 ss 3, 4: Wireless Telegraphy Regulations 1924 regs 4(9), 124: International Telecommunication Convention done at Madrid on 9 December 1932  ATS 10 art 26: Post and Telegraph Act 1901 s 96: Telegraph Regulations 1927 reg 71: Defence Act 1903 s 65: International Telegraphic Convention done at St Petersburg on 22 July 1875  ATS 6 art 8: International Radiotelegraph Convention, Final Protocol and Detailed Service Regulations done at London on 5 July 1912  ATS 7 art 17
The Director-General, Posts and Telegraphs, has forwarded to me for advice the following communication:
- While adequate statutory authority appears to exist already enabling the Commonwealth in time of war or state of tension to censor international telegrams, provision is not included in the Commonwealth Post and Telegraph Acts empowering the Postmaster-General to stop the transmission of any telegram which may be dangerous to the security of the Commonwealth.
- The Telegraph Act No. 9 of 1909 provides that:
- The Governor-General may, whenever any emergency has arisen which, in his opinion, renders it desirable in the public interest so to do, authorise any officer of the Commonwealth to take possession or control of any submarine cable or any wireless telegraph or telephone.
- Any officer so authorised, and any person acting under his authority, may take possession or control of the submarine cable or wireless telegraph or telephone, and may continue in possession or control thereof for such period as the Governor-General thinks fit to direct.
- No person shall obstruct or hinder any officer so authorised, or any person acting under his authority, in the exercise of any power under this Act.
- The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters and things which are necessary or convenient to be prescribed for carrying out or giving effect to this Act, and in particular for regulating and controlling telegraphic or telephonic communication in times of emergency by means of submarine cables or wireless telegraphy or telephony.
- Wireless Telegraphy Regulation 4(9) provides that every wireless installation shall be available to the Minister of State for Defence in case of national emergency and Wireless Telegraphy Regulation 124 stipulates:
- In cases of emergency, of which the Minister shall be the sole judge, the Minister or any authorised officer or the Naval Board or any officer in command of any ship of war of His Majesty’s Navy (whether Imperial or Dominion), or any officer in command of any part of the Defence Force, may–
- take possession of any wireless telegraph appliances installed on any station in pursuance of a licence, and use such appliances for the King’s service; or
- place any person in control of any such appliances; or
- direct the licensee or person in charge of the appliances to submit to him all or any messages tendered for transmission or received by means of the appliances; or
- stop or delay or direct the licensee or person in charge of the appliances to stop or delay the transmission or delivery of any such messages or to deliver them to him; or
- direct the licensee or person in charge of the appliances to comply with all such directions as he thinks fit to give with reference to the transmission or receipt of messages by means of the appliances.
- Every licensee and every person in charge of any wireless telegraphy appliances installed in pursuance of a licence shall comply with this regulation, and all directions issued in pursuance thereof.
- Reasonable compensation shall be payable to the licensee for any damage to the appliances arising in consequence of the exercise of the powers conferred by this regulation.
- It will be observed that Wireless Telegraphy regulation 124 gives the Commonwealth authority to stop the transmission of any message tendered for transmission or received by wireless. In accordance with Article 26 of the International Telecommunication Convention, to which the Commonwealth is a party, the contracting Governments reserve to themselves the right to stop the transmission of any private telegram which may appear to be dangerous to the security of the State or contrary to the laws of the country. Telegraph Regulation 71 under the Post and Telegraph Act 1901–1934 provides that International telegrams are in all cases subject to the provisions of the Convention. It appears, therefore, that the existing statutory provisions give the Commonwealth adequate powers of censorship in time of war or state of tension so far as international telegrams are concerned. The only provision for censorship of domestic telegrams appears to be that prescribed by section 96 of the Post and Telegraph Act 1901–1934, viz:
- Perhaps you will kindly inform me whether there is any other statutory provision which would enable the Commonwealth, in time of war or state of tension, to stop the transmission of any telegram which appears dangerous to the security of the Commonwealth or to public order.
Penalty : Twenty pounds.
Any person employed under the authority of the Postmaster-General may refuse to receive or transmit a telegram containing blasphemous, indecent, obscene, offensive or scandalous matter in its contents address or signature.
The only other statutory provision which might enable the Commonwealth to control the transmission of telegrams within the Commonwealth is found in section 63 of the Defence Act 1903–1934. So far as is material, subsection (1) of this section is as follows:
65(1) … The Governor-General may–
(f) Subject to the provisions of this Act do all matters and things deemed by him to be necessary or desirable for the efficient defence and protection of the Commonwealth or of any State.
On the outbreak of war in 1914, the Governor-General approved of the establishment of censorship of cable and wireless telegraph communications.
In the Commonwealth Gazette No. 50 of 3rd August, 1914, appears the following notification:
Department of Defence,
Melbourne, 3rd August, 1914
ESTABLISHMENT OF CENSORSHIP OF CABLE COMMUNICATIONS
His Excellency the Governor-General, acting with the advice of the Federal Executive Council, has been pleased to approve of the establishment of censorship of all cable and wireless telegraph communications throughout the Commonwealth, being proclaimed as from Five o’clock p.m. of 3rd August, and the following form of notification issued.
E. D. MILLEN,
Minister of State for Defence
FORMS OF NOTIFICATION OF THE SUSPENSION OF TELEGRAPH AND RADIO-TELEGRAPH SERVICE TO, FROM OR IN TRANSIT THROUGH THE COMMONWEALTH OF AUSTRALIA
1. Notification of General Suspension of Telegraph and Radio-Telegraph Services
The Government of the Commonwealth of Australia find themselves under the necessity of availing themselves of the power reserved under Article 8 of the International Telegraph Convention and Article 17 of the International Radio-Telegraph Convention to suspend the transmission of telegrams and radio-telegrams to and from or in transit through the Commonwealth of Australia, and to and from or in transit through any Territories under the authority of the Commonwealth of Australia, save and except such telegrams and radio-telegrams as are on the service of His Britannic Majesty’s Government, or the Government of the Commonwealth of Australia, or of any State of the Commonwealth, or of any Territory under the authority of the Commonwealth, or of any other British Possession or Protectorate.
By Article 8 of the International Telegraph Convention 1875 (Lisbon Revision, 1908), which was in force in August 1914, each Government reserved to itself the right of suspending the international telegraph service for an indefinite period, if it deemed necessary, either generally or only upon certain lines and for certain kinds of correspondence, upon condition that it immediately advised each of the other contracting Governments. The right reserved by Article 26 of the International Telecommunication Convention 1932 is apparently similar to that referred to in the above Article 8.
The establishment of the censorship during the Great War was not challenged. In my opinion, the power with respect to censorship is adequate. If it should be used and challenged, the time would then be opportune to ask for legislative action in the matter.
[Vol. 31, p. 75]