Opinion Number. 202



Key Legislation

CONSTITUTION, s. 51 (v) : POST AND TELEGRAPH ACT 1901, ss. 3, 80, 97


Submitted as to whether the proposed Regulations, purporting to empower the Postmaster-General to supply lines and apparatus for burglar alarms, are intra vires the Constitution and the Post and Telegraph Act 1901.

I understand that the burglar alarms proposed are in the nature of an electrical attachment to doors, windows, safes, etc., which by means of a conducting wire will give some indication at a distance-say at a police station-if the door, window, safe, etc. is being opened or tampered with.

Under section 51 (v) of the Constitution, the Federal Parliament has power to make laws with respect to 'Postal, telegraphic, telephonic, and other like services'. No other legislative power of the Parliament appears to have any bearing on the matter.

It appears to me that the words 'telegraphic, telephonic, and other like services' would probably include methods of transmitting verbal (and perhaps some other) messages of any kind from one person to another (though query, whether it would include e.g. electric bells) but that it is very doubtful whether they would include an automatic electric indicator, such as a burglar alarm, which does not convey a message in the ordinary sense, but merely indicates something that is happening at a distance. If the words would include such a service, it would be possible for the Parliament, by appropriate legislation, to give the Postmaster-General a monopoly of all such services- and to prevent any person from establishing any such indicator-even on his own premises-except in accordance with Federal law.

If the words do not include such a service, it would appear that the Postmaster-General has no right to carry lines for the purpose through the streets-even on the departmental telegraph posts-and certainly not to claim a monopoly. Even assuming that the Commonwealth Parliament has power to legislate on the subject, the further question arises whether the Regulations are within the powers conferred by the Post and Telegraph Act 1901. It is submitted that they are not within those powers; see especially sections 3,80, and 97 of the Act.

In connection with this file is forwarded another file relating to the Rabbidge Fire Alarm and Burglar System. This system differs from that above described in that it is to be affixed to a telephone circuit, and operated in connection with the telephone. The constitutional objection mentioned above would probably not apply to this system; and although there appears to be no provision in the Post and Telegraph Act authorising the establishment of any such service, it is submitted that there is no legal objection to the Department arranging with telephone subscribers for such an attachment in connection with their telephones.

[Vol. 4, p. 488]

(1)To this opinion Sir Josiah Symon, Attorney-General, made the following addendum, dated 18 January 1905:

'Two important questions arise here:

  1. Whether what is proposed is within the power of the Commonwealth Parliament.
  2. And if it is whether the provisions of the Post and Telegraph Act I901 are adequate to give it effect.

Neither point is clear or free from difficulty but on the whole I am of opinion af?rmatively on both.What is contemplated seems to me a "like service" with "telegraphic or telephonic" in sub-clause 5 of clause 51 of the Constitution-if indeed it I; not strictly within the very expression "telegraphic or tele- ' phonic"; and equally it appears to me to come within the de?nition of "Telegraph" or "Telegraph line" in clause 3 of the Post and Telegraph Act. I agree with Mr Garran that probably there is less doubt with respect to the Rabbidge System which it is proposed shall be a?ixed to a telephone circuit and operated in part or in connection with the telephone service'.