Opinion Number. 217

Subject

TELEGRAPHIC AND TELEPHONIC SERVICES WHETHER COMMONWEALTH HAS POWER TO CONTROL SUBMARINE CABLES AND PRIVATE TELEGRAPH LINES

Key Legislation

CONSTITUTION, s. 51 (v), (vi) : DEFENCE ACT 1903, s. 63

Date
Client
The Secretary, Postmaster-General's Department

The Secretary, Postmaster-General's Department asks to be further advised(1) as to-

what powers are possessed by the Commonwealth under the existing laws, and the provisions of the International Telegraph Convention(2) to interfere with or control the working of submarine cables, and private telegraph lines, such as those provided and maintained for the use of the Eastern Extension Company under the agreements between that Company and the several States which are parties thereto, in time of war or other emergency.

So far as I am aware, the only provision in the Federal statutes which covers the matter is section 63 of the Defence Act 1903, which provides that:

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.

This provision is little more than a confirmation, as regards the power of the Executive, of the common law maxim salus populi suprema lex. Even apart from this section there is no doubt that no objection, legal or diplomatic, could be founded on any action of the Executive, in time of war or other emergency, directed towards preventing the use of cables or private telegraph lines in a way dangerous to the public interests.

The International Telegraph Convention does not of course 'empower' the Government of the Commonwealth to interfere with the working of cables; but it expressly declares (article 7) that:

The High Contracting Parties reserve to themselves the right to stop the transmission of any private telegram which may appear dangerous to the security of the State, or which may be contrary to the laws of the country, to public order, or decency.

See also article 8 of the Convention.

There is of course nothing in the Convention which deprives the contracting parties of the right to exercise effective supervision, inspection, and control for this purpose.

[Vol. 5, p. 6]

(1) See Opinion No.214.

(2) Dated 22 July 1875.