R v Brislan [1935] HCA 78

Peay us Pool Sons, uerwoLa ER q FP as ROS Se ha, fee. 1

H.C. or A. Constitutional Law (Cth.)—Wireless telegraphy—Radio broadcasting—Validity 9

1935. <a SypNey,

Oct. 25, 2 29; Dec. 1

Latham C.J.,

Rich, Starke,

Dixon, Evatt and: MeTiernan

Orper Nist for writ of prohibition.

Ev NG, y

HIGH COURT [193

(HIGH COURT OF AUSTRALIA.] THE KING AGaINsr BRISLAN ; Ex parte WILLIAMS. statute—" Postal, telegraphic, telephonic and other like services "Appliance Jor receiving " messages" by means of wireless telegraphy—Broadcasting receiv

set—The Constitution (63 & 64 Vict. c. 12), sec. 51 (v.)—Wireless Telegra Act 1905-1919 (No. 8 of 1905—No. 4 of 1919), secs. 2, 6.

Sec. 51 (v.) of the Constitution confers on the Commonwealth Parliament power to legislate with respect to radio broadcasting.

A wireless set kept for the reception of broadcast programmes is an appliat maintained for the purpose of receiving messages by means of wireless telegrap! -within the meaning of sec. 6 of the Wireless Telegraphy Act 1905-1919, and that section, so construed, is validly enacted under the power conferred by sec. 51 (v.) of the Constitution,

So held by Latham C.J., Rich, Starke, Evatt and McTiernan JJ. (Dizon dissenting).

Observations on the meaning of the words " other like services" in see. 5 (v.) of the Constitution and of the word " messages " in sec. 6 of the Wireles Telegraphy Act 1905-1919,

Upon an information laid by Roy Vincent Brislan, a wireless

54 C.L.R.] OF AUSTRALIA. 263

Wales, without authorization by or under the Wireless Telegraphy H.C. oF 4. Act 1905-1919, maintain an appliance for the purpose of receiving heist messages by means of wireless telegraphy contrary to the Actin such Tae Kix case made and provided. Basta The evidence showed that upon the occasion of a visit paid by Toe departmental officers on 26th September 1934 to the defendant's § —— premises they found there a five valve all-electric wireless receiving set connected to an indoor aerial. They heard a B class broad- casting station broadcasting speech. On the following day the defendant admitted to the officers that she owned the wireless receiving set, that it had been installed for a week, and that she did not have a current wireless listener's licence. The receiving set was capable of receiving messages or any audible sounds or matter from a wireless transmitting or broadcasting station. The defendant was convicted and fined. Upon her application Evatt J. ordered the informant and the magistrate to show cause before the Full Court of the High Court why a writ of prohibition should not be issued to restrain them and each of them from further proceeding on or in respect of the convic- tion. The grounds of the order nisi were (a) that the Wireless Telegraphy Act 1905-1919 is ultra vires the Commonwealth of Australia Constitution ; (b) that the regulations as to broadcasting ~ made under that Act are ultra vires the Act ; (c) that the Constitution gives no authority to the Commonwealth Parliament to make laws or authorize regulations of a general character in relation to radio broadcasting; (d) that there was no evidence (i.) that the appliance (if any) maintained by the applicant was for the purpose of receiving messages by means of wireless telegraphy within the meaning of the Wireless Telegraphy Act 1905-1919, (ii.) that the applicant did maintain an appliance for the purpose of receiving messages by means of wireless telegraphy, or (iii.) to support the conviction. The matter was argued before Rich, Starke, Dizon, Evatt and MeTiernan JJ., on 21st and 22nd March 1935, and judgment was reserved. Pursuant to an announcement by Rich J. on 14th October 1935, the matter now came on to be re-argued.