Herald & Weekly Times Ltd v Commonwealth [1966] HCA 78

High Court of Australia McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ. Herald & Weekly Times Ltd v Commonwealth [1966] HCA 78

ORDER Demurrer allowed. Order that judgment in the action be entered for the defendant with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 30 McTiernan J.

The question for decision is whether Div. 3 of Pt IV of the Broadcasting and Television Act 1942-1965 is constitutional legislation. The heading of Div. 3 is—"Limitation of Ownership or Control of Commercial Television Stations". The meaning of "commercial television station" is ascertained by reading together the definitions of "commercial television station" and "television station", which are to be found in s. 4 (1) of the Act. The commercial television service for which the Act provides is a "service" to which s. 51 (v.) of the Constitution extends. This service is carried on by companies holding licences granted for commercial television stations by the Minister in pursuance of s. 81 of the Act.

I am unable to uphold any of the points raised by the plaintiffs against the constitutional validity of Div. 3. In my opinion each and every provision which they attack is in substance a law which s. 51 (v.) of the Constitution empowers Parliament to make with respect to the commercial television service for which the Act provides. The defendant's demurrer to the statement of claim should be allowed.

Kitto J.

This is a demurrer to a statement of claim which seeks a declaration that the whole or some part or parts of Div. 3 of Pt IV of the Broadcasting and Television Act 1942-1965 Cth, a division enacted by s. 7 of the Act No. 38 of 1965, and amended by the Act No. 120 of 1965, is or are invalid as being unsupported by any legislative power of the Commonwealth. On the argument of the demurrer the plaintiffs limited their attack to some parts only of the division.