HIGH COURT OF AUSTRALIA

                                                          King

                                                           Vs.

                                                        Brislan;

                        (Latham C.J., Rich, Starke, Dixon, Evatt and McTiernan JJ.)

                                                 17 December 1935

Latham C.J.

The question raised upon this application for a writ of prohibition is whether Dulcie Williams, the
defendant in the proceedings before the Court of Petty Sessions at Sydney, was rightly convicted for
maintaining without authorization by or under the Wireless Telegraphy Act an appliance for the
purpose of receiving messages by wireless telegraphy contrary to the Wireless Telegraphy Act 1905-
1919.

Sec. 6 (1) of that Act is in the following terms:--"Except as authorized by or under this Act, no
person shall--(a) establish, erect, maintain, or use any station or appliance for the purpose of
transmitting or receiving messages by means of wireless telegraphy; or (b) transmit or receive
messages by wireless telegraphy. Penalty: Five hundred pounds, or imprisonment with or without
hard labour for a term not exceeding five years."

It is provided in sec. 2 of the 1905 Act as amended by the Wireless Telegraphy Act 1919 that
wireless telegraphy "includes all systems of transmitting and receiving telegraphic or telephonic
messages by means of electricity without a continuous metallic connection between the transmitter
and the receiver."

The evidence shows that officers of the Postmaster-General's Department visited defendant's
premises on 26th September 1934 and found there a five valve all-electric wireless receiving set
connected to an indoor aerial. They heard the broadcasting station 2 KY 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 had no current wireless listener's licence. The
defendant was convicted and was fined £1 with eight shillings costs or alternatively three days
imprisonment.

The objections taken in the Court of Petty Sessions are repeated in the grounds upon which the
order nisi was granted: these grounds are as follows:--"(1) (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 the Wireless Telegraphy Act are ultra vires the said 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. (2) That there was no evidence
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. (3)
That there was no evidence that the applicant did maintain an appliance for the purpose of receiving
messages by means of wireless telegraphy as alleged. (4) That there was no evidence to support the
conviction."

1.

The first question for consideration is whether, upon the assumption that the relevant provision of
the Wireless Telegraphy Act is valid, the defendant committed an offence thereunder.

Sec. 6 of the Act prohibits, inter alia, the maintenance of any appliance for the purpose of receiving
messages by means of wireless telegraphy (which includes telephony) except as authorized by or
under the Act. There is no doubt that the defendant was not authorized by or under the Act to
maintain the wireless set which she did in fact maintain.

Provision is made under the regulations for an authority or licence to maintain a wireless receiving
set. It has been argued that the regulations, so far as they deal with broadcasting, are ultra vires the
Act. But even if this were so, the only result would be that no valid provision was made for giving a
licence under the regulations. The success of the argument would not give the defendant a licence or
other authority. Thus the alleged invalidity of the regulations cannot affect the liability of the
defendant in this case. It is therefore necessary to consider carefully the section of the Act itself
under which the defendant was charged.

2.

The appliance the maintenance of which without authority is prohibited by sec. 6 of the Act is an
appliance for the purpose of transmitting or receiving messages by means of wireless telegraphy,
which, as defined in the Act, includes all systems of transmitting and receiving wireless telephonic
messages. Telephony consists in the reproduction of sounds, with or without amplifiers, at a
distance.

It has been suggested that a telephone is an instrument which provides communication from point to
point only, and that if what is heard at the receiving end is available for all bystanders to hear, the
communication is not telephonic in character. This argument does not appear to be sound. If an
amplifier is attached to an ordinary telephone receiver the essential character of the operation, which
consists in what is ordinarily described as the reproduction of sounds at a distance, is not changed.
Similarly the fact that a large number of receiving instruments can pick up the same message does
not alter the telephonic nature of the operation. It can readily be arranged that an ordinary
conversation conducted over an ordinary telephone should be audible simultaneously at many
receivers which are suitably connected by wires to the system. In such a case there is no doubt that
the communication is still of a telephonic nature. Accordingly the grounds which have been
suggested for the purpose of reaching a conclusion that wireless broadcasting is not a system of
transmitting and receiving telephonic communications do not appear to me to justify that
conclusion.

3.

The appliance in this case was maintained for the purpose of receiving whatever might be
broadcasted from wireless broadcasting stations--whether speeches or music or other audible
sounds. It is urged that even if the operation of broadcasting is telephonie in character, yet the
definition of wireless telegraphy (which has already been quoted) limits wireless telegraphy for the
purpose of the Act to systems of transmitting and receiving messages, and that what was received by
the defendant's wireless set could not properly be described by the term "message."

It is difficult to enumerate all the forms of message which may be used by mankind. A message may
be communicated by spoken or written words, by notches cut in a stick, by audible or visible
symbols which are not ordinary words or not words at all, but to which a meaning can be attached
by those who understand the relevant code. Direct conversation is not usually regarded as a
message, though a more or less formal oral deliverance to a number of persons is often, with a well-
established extension of the more ordinary meaning of the word, called a message.

An understanding of the nature of a message for the purposes of the Act can be obtained from the
Act itself. The words of the Act show that a message is something which is transmitted and which
may be received. There is a distance between the transmitter and the receiver, and the function of
the appliance referred to in the Act is to assist in bridging that distance. This appears from the words
of sec. 6. Thus the essential characteristic of a message appears to be found in communication from
a distance, as distinguished from direct communication between persons who are face to face. As a
general rule such communications are made for the purpose of conveying "information, news, or
intelligence." But the sender may use for this purpose a language that is not generally intelligible. A
communication may be a message even if the person actually dispatching it does not understand it.
A message sent in code, consisting of permutations of figures, is none the less a message because it
means nothing to persons who are not in a position to apply the key to decipher it. The morse
signals which are tapped out by a key at a transmitting telegraphic instrument, and which are
recorded by a receiving instrument, constitute a message even before they are interpreted. Where a
teleprinter is used, a message has been sent though no one supposes that the actual letters have been
sent along the telegraph wire. Thus, in the case of an electric telegraph, a message is received when
visible symbols of some kind, generally, but not necessarily, accompanied by audible sounds, are
received by a receiving instrument.

It is not out of place to recall that the first telegraphs consisted of manually operated semaphores.
Such apparatus is still in use, particularly at sea. The working of such a telegraph leaves no
permanent result anywhere in any record. The message can be received by any persons who are
within the area from which the apparatus is visible. What such a telegraph sends out is called a
message though it is broadcasted to the world.

A telephone message can be heard only through a suitable receiving instrument. The fact that such
an instrument is necessary does not affect the character of a communication as a message.

It would therefore appear that neither the number of possible recipients of a communication nor the
necessity for a special receiving apparatus is material in determining whether a particular
communication is a message. In other words, it has long been recognized that a message does not
cease to be a message merely because it is either intended for or may in fact be received by a large
number of persons simultaneously. Thus broadcasting by wireless may be a means of transmitting
messages which are receivable by large numbers of persons who possess suitable receiving
apparatus.

If the broadcasting of speech is in this connection the transmission of messages (i.e., of
communications which because they are sent to a distance may be properly called messages), then
the reception of such speech by means of an appliance maintained for the purpose of picking up
whatever is broadcasted involves the maintaining of an appliance for the purpose of receiving
messages by means of wireless telegraphy as defined in sec. 2 of the Act.

4.

It is true that the defendant's wireless receiving set would pick up musical programmes as well as
spoken communications and that it was doubtless maintained also, and perhaps mainly, for this
purpose. But even if the reception of a musical programme is not the receiving of a message, this
fact does not affect the truth of the proposition which has just been stated, namely, that the reception
of speech is, in this connection, reception of a message in the sense in which that word has long
been used in connection with telegraphy and telephony. For this reason it is not, in my opinion,
strictly necessary to decide in this case whether or not the transmission or reception of musical
programmes or of sounds as such can be described as the transmission or reception of a message. If,
however, it were necessary to decide this question, I would agree with the conclusion reached by my
brothers Rich, Starke and Evatt. I would so agree upon the ground that the essence of a message is to
be found in the fact that it is a communication sent from one person to another person or other
persons, and that therefore the broadcasting of music does involve the transmission and reception of
messages.

Thus, in my opinion, if sec. 6 of the Wireless Telegraphy Act is valid, the defendant was rightly
convicted.

5.

The next question which arises is therefore the question of the validity of the Act.

The contention raised on behalf of the defendant is that, even if the Act (as a matter of construction)
authorizes the control of broadcasting, the Constitution does not confer upon the Commonwealth
Parliament any power to legislate with respect to broadcasting. The Constitution provides in sec. 51
(V.) that the Commonwealth Parliament may make laws for the peace, order and good government
of the Commonwealth with respect to "postal, telegraphic, telephonic, and other like services." It is
contended for the defendant that broadcasting does not fall within any of the subjects mentioned.

In the earlier part of this judgment I have stated my reasons for the opinion that broadcasting is a
form of wireless telephony. It consists in the transmission by wireless of sounds to a distance. The
transmission of music by such means is no less telephonic than the transmission of spoken words. It
is, in my opinion, unnecessary to investigate the precise means whereby transmission and reception
are effected. Some discussion of these matters is to be found in the cases of Chappell & Co. Ltd. v.
Associated Radio Co. of Australia Ltd.[1] and Buck v. Jewell-LaSalle Realty Co.[2].

The Canadian Constitution does not refer to telephonic services. The Dominion Parliament,
however, has exclusive power to control "lines of steam or other ships, railways, canals, telegraphs,
and other works and undertakings connecting the Province with any other or others of the
Provinces, or extending beyond the limits of the Province" (British North America Act 1867, sec. 92
(10)). It has been held that in this section "telegraphs" includes telephones (Toronto Corporation v.
Bell Telephone Co. of Canada[3]). There is now the further authority of the Judicial Committee of
the Privy Council for the proposition that broadcasting also falls within the description of
"telegraphs" (In re Regulation and Control of Radio Communication in Canada[4]). If broadcasting
is included in in the Canadian Constitution, then a fortiori broadcasting is covered by the words
"telegraphic" and "telephonic" in the Australian Constitution.
6.

It is not, however, sufficient that the operation of broadcasting and receiving broadcasted material
should be telephonic in character. The Commonwealth Parliament, so far as telephony is concerned,
can legislate only with respect to a telephonic service or services. It is contended that broadcasting is
not a service in the sense in which that term is used in sec. 51 (V.) of the Constitution.

In the first place it was suggested that "service" in sec. 51 (V.) should be read in a sense similar to
that in which it is used in sec. 69, which provides for the transfer to the Commonwealth of specified
departments of the Public Service in each State, including "posts, telegraphs, and telephones." The
services so transferred are, it is suggested, the same services as those with respect to which the
Parliament can legislate under sec. 51 (V.).

In my opinion sec. 69 refers to departments of the State Public Services in the sense of the servants
of the State employed in the departments mentioned. Sec. 69 gives to the Commonwealth the
control of those servants from the dates proclaimed or otherwise fixed under the section. The effect
of this transfer is stated in detail in sec. 84, and legislative power with respect to the departments is
vested exclusively in the Commonwealth Parliament by sec. 52 (II.). The property used in
connection with such a department is transferred to the Commonwealth under sec. 85. These
sections, however, do not confer upon the Commonwealth Parliament power to legislate with
respect to the subject matter with which these transferred departments deal. Parallel instances can be
found in naval and military defence and in customs. Power to control the actions of officers
constituting the defence services and the customs services is to be found in the sections mentioned.
But the power to legislate on matters of defence is dealt with by sec. 51 (VI.) and on matters of
customs by sec. 51 (I.) and (II.) and sec. 90.

Similarly, in the case of postal, telegraphic, telephonic, and other like services, sec. 51 (V.), in my
opinion, gives a power which is really, and not only nominally, additional to that given by the other
sections quoted. It cannot be limited to a power to legislate with respect to public servants.

7.

But it is more strongly urged that the power conferred by sec. 51 (V.) is a power to legislate only in
respect of services in the sense of publicly controlled services of the same general character as those
which the Colonies controlled before Federation. The argument tends to become elusive, but it was
expressed by saying that these services were public utilities, including installation, maintenance,
operation, and organization, provided and controlled by Parliaments, for the purpose of spoken or
written converse between any person and any other person by means of postal, telegraphic and
telephonic apparatus and equipment. It was said that it was a characteristic feature and an essential
feature of these services that any member of the public had the right to avail himself of them for
both sending and receiving. Attention was called to the fact that broadcasting in Australia was
provided in part by a broadcasting commission and in part by what are known as B class stations.
The regulations require licences for both transmitting and receiving broadcasts. It is said that, if
such a system be a service at all, it is not a service in the sense in which the term is used in the
phrase "postal, telegraphic, telephonic, and other like services."

I am unable to see any satisfactory reason for adopting so narrow a construction of sec. 51 (V.) as
that which is suggested. The character of any service is determined by reference to the function
which it performs. A telephonic service consists of the means and organization provided for sending
telephonic communications. Under a power to legislate with respect to telephonic services a
Parliament may pass laws to provide and instal telephone apparatus, and to determine rules in
accordance with which any such apparatus may be used. On the other hand, the Parliament need not
make any such provision at all. If it does not make such provision, it may give complete control to a
Minister in charge of a department, or it may "farm it out." A Parliament which disapproved of
telephones might, so far as legal powers are concerned, repeal all statutes dealing with telephones
and prohibit the existence of any telephone service, just as it might (in the exercise of powers under
sec. 51) prohibit the existence of any defence force or of any light-houses or copyrights or patents. It
might also allow any persons to instal and use telephones without any governmental authority of
any kind.

It is impossible to express or apply any definite measure of legislative power upon the principle
suggested for the defendant. To say that postal, telegraphic and telephonic services must necessarily
be "public" services is to introduce what, in this connection, is a very vague conception. It is a
question of policy whether there should be any and what legislation upon such subjects as
communication services. A telephone service may be provided by a private person or by an ordinary
public company, or by a public company or other corporation operating under a franchise or other
special power, or by a Government department. The necessity for acquiring rights to erect poles and
to place conduits in public highways has in practice made it necessary for the Legislature to confer
special powers upon a company or specially created body or upon a Government department. But,
whatever form of management and control may be adopted, it is management and control of the
same thing--the provision of facilities for telephonic communication, as generous or as limited as
Parliament has thought proper. No standard can be suggested according to which it is possible to
determine that one statute providing for the control of telephonic communications is valid because
the control is "public" and because all the members of the public have "rights" to use the telephone,
whereas another statute is not valid because the control thereunder is not "public" enough, or the
service is not sufficiently available to members of the public. The validity of the Post and Telegraph
Act can hardly depend upon the extent to which facilities are given to the public or upon the extent
of the prohibitions applied by Parliament to sending letters and other articles through the post. It
appears to me to be impossible to attach any definite meaning to sec. 51 (V.) short of that which
gives full and complete power to Parliament to provide or to abstain from providing the services
mentioned, to provide them upon such conditions of licences and payment as it thinks proper, or to
permit other people to provide them, subject or not subject to conditions, or to prohibit the provision
of such facilities altogether.

If, however, the argument presented on this aspect of the case is sound, it should be remembered
that the Wireless Telegraphy Act, the regulations thereunder, and the Australian Broadcasting
Commission Act 1932, do in fact permit both broadcasting and the reception of broadcasted material
by authorized persons, but under a large measure of public control, exercised either by the statutory
Broadcasting Commission or by the Postmaster-General.

Under the power to make laws with respect to telephonic services it is, in my opinion, within the
power of the Commonwealth Parliament to regulate as it may think proper that form of wireless
telephony known as broadcasting.

8.

If, however, this opinion should not be well founded, it is necessary to consider the words "or other
like services."
In the first place, it is clear that it was intended by these words to extend the legislative power
beyond postal, telegraphic, and telephonic services. Otherwise the words would be meaningless.
The reasons for the addition of the words "other like services" can be readily understood if reference
is made to the history of the subject. In Attorney-General v. Edison Telephone Co. of London[5] it
was held, after much argument, that Edison's telephone was a "telegraph" within the meaning of the
Telegraph Acts 1863 and 1869, although the telephone was not invented or contemplated in 1869,
and that a telephone conversation was a "message," or at all events "a communication transmitted by
a telegraph," and therefore a "telegram" within the meaning of those Acts. It was held that the
Legislature deliberately used language "embracing future discoveries as to the use of electricity for
the purpose of conveying messages." At the time when this decision was given (1880) wireless was
completely unknown. But the Court anticipated the possible discovery of wireless when it said that
the definitions in the Acts included under "telegraph"--"electric signals made, if such a thing were
possible, from place to place through the earth or the air," as well as "a set of common bells, worked
by wires pulled by the hand, if they were so arranged as to constitute a code of signals"[6]. As to the
application of the Telegraph Act 1869 to "private" telephone systems, see Postmaster-General v.
National Telephone Co. Ltd.[7].

The Constitution of the United States of America provides in Art. I., sec. VIII., that Congress shall
have power to establish "post offices and post roads." It was held in Pensacola Telegraph Co. v.
Western Union Telegraph Co.[8] that under this power and the power to regulate commerce with
foreign nations, and among the several States, Congress could control telephonic messages. It was
doubtless hoped by the draftsmen of the Commonwealth Constitution to avoid the uncertainty which
led to such litigation.

9.

But, in the next place, only "services" can be comprehended within the words. I have already given
reasons for my view that legislation with respect to the provision and control of broadcasting
facilities, for both transmitting and receiving, is legislation with respect to a service.

10.

Further, any service covered by the words in question must be a "like" service. By what test can it
be determined whether a service is a "like" service as compared with postal, telegraphic and
telephonic services?

It was suggested for the defendant that these services were, when controlled by the States (and are
now, when controlled by the Commonwealth), in their nature such that all members of the public
could use them for purposes of communication and that such communications were secret or private
in character. Broadcasting, on the other hand, under the system in operation in Australia, is open for
use only to those who have licences for transmitting or receiving, and certainly what is broadcasted
cannot be described as secret or private.

It does not appear to me to be a necessary incident of postal, telegraphic or telephonic services as
such either that they should be open for use to all members of the public or that they should possess
to any particular extent characteristics of secrecy or privacy. A postal service, for example, would be
none the less a postal service because it could only be used, in an autocratic State, by the friends of
the autocrat, or because licences or the payment of heavy fees were required before persons could
use it, or because it was enacted that copies of all letters posted should be shown to a censor or even
made public in some manner. Such provisions might be highly objectionable, but they would, in my
opinion, be provisions with respect to "a service." Similar observations apply to telegraph and
telephone services. In addition to these considerations it may be pointed out that any person who
obtains the appropriate licence can transmit or receive broadcasted matter--just as anybody who
buys the necessary stamps can use the post offices, and just as anybody who pays the charges
imposed by law can send a telegraphic or telephonic message.

11.

Reference has already been made to the contention that these services, in order to be services, must
be the subject of public control in some sense. It has similarly been contended that likeness in
method of control should be accepted as the test of likeness for the purposes of sec. 51 (V.). Thus if
the Commonwealth Parliament made the control of the post office similar to that now in operation
with respect to broadcasting, then it might be that the latter subject could be dealt with by the
Commonwealth Parliament as it is actually dealt with in existing legislation, because then the two
services would be "like services." Alternatively, it was put that broadcasting could be made a "like
service," so as to fall within Federal legislative power, by assimilating the form of management of
broadcasting to the present form of management of postal, telegraphic and telephonic services in
Australia.

I can see no reason for interpreting the legislative powers conferred upon a Parliament by a
Constitution in relation to one subject by reference to what that Parliament elects to do with respect
to another subject, unless there is some positive direction which requires uniformity of treatment as
between the two subject matters. I am unable to find any such positive direction in the word "like."
It may be added that if similarity in method of control were the test of "likeness" of services, then
the Commonwealth Parliament could legislate about all kinds of matters provided only that a system
of control similar to that which happens to obtain in, e.g., the post office, were adopted. It is not
possible to accept such a proposition.

12.

There are difficulties in the way of accepting the view suggested on behalf of the defendant that the
means used by the postal, telegraphic and telephonic systems constitute the essential features of
"likeness." It is true that both telegraphs and telephones use electric energy. So does broadcasting.
But so also do power-transmission systems. The post office uses horses, motor cars, ships and
aeroplanes. But the power to legislate with respect to postal services cannot reasonably be said to
contain a power to deal with horses &c. as separate subjects in themselves, or with any system or
service which also uses horses &c.

13.

The common characteristic of postal, telegraphic and telephonic services, which is relevant in this
connection is, in my opinion, to be found in the function which they perform. They are, each of
them, communication services. This is also the characteristic of a broadcasting service in all its
forms, which is therefore, in my opinion, a "like service" within the meaning of sec. 51 (V.) of the
Constitution. If a new form of communication should be discovered, it too might be made the
subject of legislation as a "like service."

14.
It was argued for the respondent that the Commonwealth Parliament has power to legislate with
respect to broadcasting under the power to make laws with respect to trade and ommerce with other
countries and among the States (the Constitution, sec. 51 (I.)). It was put that any broadcast is
necessarily inter-State in character, or at least that any broadcast may be made inter-State by an
increase in the power, and that authority to control inter-State broadcasting must, owing to the very
nature of the subject matter, necessarily and inseparably include a power to deal also with
broadcasting which did not purport to be inter-State in its operation. It was also said that there was a
right in the Commonwealth Parliament to protect inter-State broadcasting against interference, as an
element of inter-State trade and commerce. One broadcasting station can readily interfere with
another, and a defective or ill-managed receiving set can interfere with reception by other sets.
Accordingly, it was said, the subject must be treated as a whole, and, if the Commonwealth
Parliament had any power at all in relation to broadcasting under the trade and commerce power, the
subject matter was such that that Parliament had all the power. No actual evidence was given in the
Court below as a basis for the argument, though possibly what was alleged as to the nature of
broadcasting may be regarded as common knowledge. I abstain from expressing any opinion upon
the extent of the trade and commerce power in this direction because, in the view that I have taken,
it is unnecessary to do so.

In my opinion the order of the Court of Petty Sessions was right and the appeal should be dismissed.

Rich and Evatt JJ.

This is an appeal from a Court of Petty Sessions exercising Federal jurisdiction. The appellant was
convicted under sec. 6 of the Wireless Telegraphy Act 1905-1919. The appliance which she
maintained was a broadcasting receiving set. The questions raised by the appeal are whether such an
instrument is within the Wireless Telegraphy Act and, if so, whether it is within the power of the
Federal Parliament to penalize the possession or maintenance of broadcasting receivers. As the
interpretation of the Act must be controlled or affected by the constitutional power, we proceed to
express our opinion upon the second question first.

The constitutional power primarily relied upon is sec. 51 (V.)--power to make laws with respect to
postal, telegraphic, telephonic, and other like services. The power was expressed in this form, we
have little doubt, because of the known difficulties which had arisen in the United States. The
constitution of the United States had conferred power to establish "post offices and post roads."
When the electric telegraph came into use the objection was made that it was outside the power. The
objection was answered, it is true. The answer given provides one of the principles of constitutional
interpretation. Waite C.J. said: "The powers thus granted are not confined to the instrumentalities of
commerce, or the postal service known or in use when the Constitution was adopted, but they keep
pace with the progress of the country, and adapt themselves to the new developments of time and
circumstances" (Pensacola Telegraph Co. v. Western Union Telegraph Co.[9]). But, notwithstanding
this principle, the difficulty served as a warning to the framers of the Australian Constitution and
accordingly they expressed themselves in terms calculated to cover developments in science and
organization enabling the control of analogous and ancillary services. We do not think that it is
disputed that wireless telegraphy and telephony are a means, although perhaps unthought of in 1897
by the framers of the Constitution, whereby the services described in sec. 51 (V.) may be conducted.
What is disputed is that the application of wireless telegraphy or telephony to broadcasting falls
within the power. The object of the power is to place under Federal authority the control of distant
communication carried on according to a systematic plan.

Broadcasting, both in its means and in the fact that its main purpose is the transmission of sound
instantaneously over long distances, possesses the prominent features of telephony. Looked at from
the point of view of the public, however, it differs in the fact that it is the receipt and not the sending
of the sound that provides the service of which the members of the public are at liberty to avail
themselves. It does not give the advantage of one man communicating with another when he wishes.
What it does give is the advantage of allowing a listener with a suitable receiving set to entertain
himself with such sounds as strike his ear as pleasurable, be they musical, vocal or of any other
description, which those operating at the transmitting station regard as satisfying a public want. The
distinction is apparent, but the question is whether it takes broadcasting beyond the legislative
power.

In dealing with such a question it must not be forgotten that it is a constitutional power intended to
provide for the future and bearing upon its face an attempt to cover unknown and unforseen
developments. A wide operation should be given to such a power. In the next place the description
"telegraphic and telephonic" carries with it, not by derivation, but by use, a reference to electrical
means of transmission of signals and speech. Broadcasting, whether conducted by private enterprise
or by a governmental body, is a public service and it is telephonic in its nature. In the case of In re
Regulation and Control of Radio Communication in Canada[10] the Privy Council had to deal with
the application of both these words to broadcasting by radio. The question arose under sec. 92 (10)
of the British North America Act 1867, which has the effect of placing under the power of the
Dominion "lines of steam or other ships, railways, canals, telegraphs, and other works and
undertakings connecting the Province with any other or others of the Provinces, or extending
beyond the limits of the Province." It happened that in a previous case (City of Montreal v. Montreal
Street Railway[11]) an observation had been made that the "works" in this provision were physical
things, not services. When, in the Radio Case[12], the Privy Council was called on to decide
whether broadcasting was within the power of the Dominion. Viscount Dunedin[13], speaking for
their Lordships, said that they were of opinion that it was and fell "within both the word telegraphs
and the general words undertakings connecting" &c. Viscount Dunedin[14] went on to say, in
reference to the word "services," that "undertaking is not a physical thing, but is an arrangement
under which of course physical things are used," thus showing that he regarded broadcasting as
fairly within the expression "services." He returned to the statement that their Lordships thought
broadcasting fell within the description of telegraphs and said:--"No doubt in everyday speech
telegraph is almost exclusively used to denote the electrical instrument which by means of a wire
connecting that instrument with another instrument makes it possible to communicate signals or
words of any kind. But the original meaning of the word telegraph as given in the Oxford
Dictionary, is: An apparatus for transmitting messages to a distance, usually by signs of some
kind"[15].

This very strong authority, coupled with the principles of interpretation and the other considerations
to which we have referred, appears to us ample justification for holding that wireless broadcasting is
a telephonic service. Anything which comes within those words must be within the power conferred
by sec. 51 (V.), which cannot be restricted to those arrangements or systems of communication
which were employed or used when the Constitution was adopted.

It remains to consider whether wireless broadcasting is within the Wireless Telegraphy Act 1905-
1919. According to sec. 2, wireless telegraphy includes all systems of transmitting and receiving
telegraphic or telephonic messages by means of electricity without a continuous metallic connection
between transmitter and receiver. The difficulty in applying the Act to broadcasting lies, in our
opinion, only in the use of the word "messages," which occurs also in sec. 6. All the other
expressions are appropriate. During the argument before us we had the advantage of an examination
of the British statutes and other relevant material relating to telegraphy and wireless. It is clear that
the word "message" has become almost a word of art in relation to telegraph and telephone services.
This involves no departure from the meaning of which the word is naturally capable. But it does
show that it is used to denote the transmission of any complete communication which, so to speak,
forms a unit in the traffic going over a line or "the air." The word has no relation to the nature of the
communication. Possibly some of the things which are transmitted by broadcast cannot be brought
within its fair meaning, but most of them can. In our opinion, a wireless receiving set is an
appliance for the purpose of receiving messages by means of wireless telephony, which is included
within the statutory definition of wireless telegraphy.

For these reasons we think the appeal should be dismissed.

Starke J.

Appeal by way of prohibition.

The prosecutor, Dulcie Williams, was charged before a stipendiary magistrate, sitting in the Court of
Petty Sessions at Sydney, for that she did without authorization by or under the Wireless Telegraphy
Act 1905-1919 maintain an appliance for the purpose of receiving messages by means of wireless
telegraphy, contrary to the Act, and she was convicted of that offence. She had on her premises an
electric wireless receiver connected to an indoor aerial. The receiving equipment was capable of
receiving messages or any audible sounds or matter from a wireless transmitting or broadcasting
station. The rule nisi was granted upon several grounds, but the principal grounds are:--(1) That
upon its true construction the Wireless Telegraphy Act 1905-1919 only prohibits the maintenance of
appliances for the purpose of receiving messages by means of wireless telegraphy and not for the
purpose of receiving radio broadcasts. (2) That if and so far as the Act regulates or authorizes the
regulation of radio broadcasting, it transcends the Constitution.

The Act, by sec. 6, provides that no person shall, except as authorized by or under the Act, maintain
or use any appliance for the purpose of transmitting or receiving messages by means of wireless
telegraphy. The Wireless Telegraphy Regulations, made or purporting to have been made under the
Act, regulate generally radio broadcasting and the issue of listeners' licences for stations used solely
for the reception of programmes from broadcasting stations. Ordinarily, one would consider whether
regulations are authorized by the Act under which they purport to have been made. But in the
present case, it is advisable, I think, to determine the extent of the legislative power of the
Commonwealth over radio broadcasting.

The Constitution, sec. 51 (V.), confers upon the Parliament power to make laws for the peace, order
and good government of the Commonwealth with respect to "postal, telegraphic, telephonic and
other like services." It was argued that the likeness of a service to those enumerated depends upon
the character of the service; it must be a service, it was said, under the control of the Government,
and it must provide for the transmission and reception of communications between citizens and be
private in its nature. But in my opinion the likeness of the service depends upon no such
considerations, but upon the likeness of the means by which the service is performed. Thus there is
no material distinction between a telegraphic and a telephonic service (Attorney-General v. Edison
Telephone Co. of London[16]); in both cases communication takes place by means of a wire acted
upon by electricity. In a wireless service, communication takes place without a continuous metallic
connection between transmitter and receiver. It is quite unnecessary to discuss the theory of radio
transmission and reception. It is sufficiently referred to in Chappell & Co. Ltd. v. Associated Radio
Co. of Australia Ltd.[17] and in Buck v. Jewell-LaSalle Realty Co.[18]. "The important matter," as
Cussen J. said in Chappell & Co.'s Case[19], "is that in all cases of reproduction of ... similar
sounds at a distance the modulations in the original atmospheric disturbances are in a sense
preserved, though manifesting themselves at various stages and in various media in various ways."
But more important, from a legal point of view, is the decision of the Privy Council in In re
Regulation and Control of Radio Communication in Canada[20]. Under the Canadian Constitution
(British North America Act, 30 & 31 Vict. c. 3), the Provinces have exclusive powers (sec. 92) to
make laws in relation to local works and undertakings other than such as are of the following
classes, telegraphs and other works and undertakings connecting the Province with any other or
others of the Provinces or extending beyond the limits of the Province (sub-sec. 10). The matters so
excepted become part of the exclusive legislative authority of the Dominion (sec. 91, sub-sec. 29).
"Now," said their Lordships, "does broadcasting fall within the excepted matters? Their Lordships
are of opinion that it does, falling ... within both the word telegraphs and the general words
undertakings connecting the Province with any other or others of the Provinces or extending beyond
the limits of the Province"[21]. In my opinion, therefore, the Constitution gives the Commonwealth
full authority to legislate with respect to wireless telegraphy, including radio broadcasting.

The next question is how far the Commonwealth has exercised this power in the Wireless
Telegraphy Act 1905-1919. The Act gives the Minister for the time being administering the Act the
exclusive privilege of establishing, erecting, maintaining and using stations and appliances for the
purpose (amongst others) of transmitting messages by wireless telegraphy within Australia and
receiving messages so transmitted (sec. 4). Wireless telegraphy includes all systems of transmitting
and receiving telegraphic or telephonic messages by means of electricity without a continuous
metallic connection between the transmitter and the receiver (sec. 2). These sections may be
compared with sec. 80 of the Post and Telegraph Act 1901-1923: "The Postmaster-General shall
have the exclusive privilege of erecting and maintaining telegraph lines and of transmitting
telegrams or other communications by telegraph within the Commonwealth and performing all the
incidental services of receiving collecting or delivering such telegrams or communications except as
provided by this Act or the regulations." It will be observed that the word "messages" is used in the
Wireless Telegraphy Act, whereas in the Post and Telegraph Act the words are "telegrams or other
communications." But a message is a communication, and the use of the one word rather than
"messages or other communications" does not suggest any special limitations of the privilege
granted by the Wireless Telegraphy Act. Little difficulty seems to have been found in treating
telephonic conversations as messages (see Attorney-General v. Edison Telephone Co. of
London[22]). Again, in the English Wireless Telegraphy Acts 1904, 1925, and 1926 (4 Edw. VII. c.
24; 15 & 16 Geo. V. c. 67; 16 & 17 Geo. V. c. 54), the word "messages" is used in a sense wide
enough to include broadcasting. Thus, in sec. 1 (7) of the 1904 Act, as amended in 1925, "wireless
telegraphy" is defined to mean "any system of communication by telegraph as defined in the
Telegraph Acts, 1863 to 1904, without the aid of any wire connecting the points from and at which
the messages or other communications are sent and received: Provided that nothing in this Act shall
prevent any person from making or using electrical apparatus for actuating machinery or for any
other purpose than the transmission and reception of messages." The scope and object of the
Wireless Telegraphy Act, and the broad sense in which the word "message" is used in connection
with wireless telegraphy, lead me to the conclusion that the word "messages" in the Act includes the
dissemination of any sounds or audible matter, e.g., musical performances, speeches, &c., by means
of electricity without a continuous metallic connection between the transmitter and the receiver. The
Act might well have followed the English legislation, but it is not so futile that it regulates some
undefined communications called messages, and leaves radio broadcasting entirely unregulated and
beyond the monopoly granted to the Minister in the interest of the whole Commonwealth.

All that remains for consideration is the validity of the regulations. By sec. 10 of the Act, the
Governor-General may make regulations not inconsistent with the Act prescribing all matters which
by the Act are required or permitted to be prescribed or which are necessary or convenient to be
prescribed for carrying out or giving effect to the Act. If the construction I have given to the Act is
right, namely, that the Commonwealth has authority under it to control and regulate radio
broadcasting, then the regulations or at all events the licensing clauses appear to be within power
and perfectly valid.

The rule nisi should be discharged.

Dixon J.

The appellant was convicted under sec. 6 of the Wireless Telegraphy Act 1905-1919 of maintaining,
without authorization, an appliance for the purpose of receiving messages by means of wireless
telegraphy. "Wireless telegraphy" is defined by sec. 2 to include all systems of transmitting or
receiving telegraphic or telephonic messages by means of electricity without a continuous metallic
connection between the transmitter and the receiver. What the appellant was in fact maintaining was
an ordinary wireless broadcasting receiving set.

The contentions advanced in support of her appeal are that upon its proper interpretation the section
under which she was charged does not extend to broadcasting receiving sets and that, if it does, it is
to that extent invalid because the power conferred upon the Parliament by sec. 51 (V.) of the
Constitution to make laws with respect to postal, telegraphic, telephonic and other like services,
does not cover broadcasting and there is no other power within which the provision can be brought.

In my opinion, the first of these contentions is well founded and to maintain a broadcasting
receiving set for use in the ordinary manner is not an offence against sec. 6 of the Wireless
Telegraphy Act 1905-1919. The second contention involves the long standing question of the power
of the Commonwealth over broadcasting. From the beginning of broadcasting the difficulty which
exists in bringing it within the legislative power of the Commonwealth has been well understood,
but the Wireless Telegraphy Regulations governing it have hitherto enjoyed an immunity from attack
which suggests a general acquiescence almost in the Commonwealth's assumption of the power. The
difficulty, of course, lies in regarding broadcasting for general amusement, information, instruction,
or edification, as a service which forms part of, or is like, postal, telegraphic and telephonic
services. A similarity undoubtedly exists between the appliances used, on the one hand, in
telegraphy and telephony and, on the other, in wireless broadcasting. But it is said that the likeness
to which the Constitution refers is to be found in the character of the service performed for the
public and not in the mechanical or electro-magnetic nature or basis of the instruments employed for
the purpose.

The present would appear to me to be anything but a suitable occasion for deciding this important
constitutional question, if the opinion of the majority of the Court were adverse to the power. No
one has thought fit to raise it in the interests of the States, which, apparently, are well content to
suffer the Commonwealth to exercise the power. In the United States of America broadcasting by
wireless has been held to fall within the power over inter-State commerce (Federal Radio
Commission v. Nelson Brothers Bond & Mortgage Co.[23]). If, therefore, a Commonwealth statute
dealing with broadcasting were enacted on the basis of the power with respect to trade and
commerce between the States, some support might be found to exist, independently of sec. 51 (V.),
for the Federal claim to control the entire subject. But the Wireless Telegraphy Act 1905-1919 is not
based in any way on the commerce power and, in my opinion, cannot be considered as a law with
respect to the subject matter of that power. The question has long been left in suspense and, if a
majority of the Court had been, as I am, unable to arrive at the conclusion that broadcasting is
within the power with respect to postal, telegraphic, telephonic and other like services, I should
have been disposed to limit the expression of my opinion to the ground I have already stated,
namely, that the ordinary use of a broadcasting receiving set is not within the prohibition contained
in sec. 6 (1) of the Wireless Telegraphy Act. As it is, I shall give my reasons for that conclusion and
then state very shortly why, in my opinion, wireless broadcasting is not within the subject matter of
sec. 51 (V.).

The provision applies only when the purpose exists of transmitting or receiving messages by means
of wireless telegraphy. It may be that the means employed come within the words forming part of
the definition of wireless telegraphy--"by means of electricity without a continuous metallic
connection between the transmitter and the receiver." Nevertheless I do not think broadcasting
programmes constitute or contain "messages." This word appears to me to mean a communication
sent to one definite person by another. It does not mean matter in the form of speech or other sounds
disseminated indiscriminately among the public who, being equipped with the mechanical means,
desire to hear it. From a listener's point of view, a wireless receiving set may be regarded as a
mechanical means of extending the range of natural hearing restricted to sounds which at the place
of emission have been mechanically dealt with so that they may be so heard. The very word
"broadcast" is used because the sounds are addressed to all who have thus extended their range of
hearing by an appropriate appliance. Its meaning involves publicity. The expression "transmit and
receive a message" could not, I think, be applied to a speech delivered at a gathering through
amplifiers by a speaker a great part of whose audience was beyond the natural range of hearing. But
when a speech is broadcast, the operation differs only in the fact that the listeners are not
congregated together and, without television, cannot see the speaker. In the Act the word "message"
is, I think, appropriate only to individual communication. In saying it means a communication to
one definite person by another, I do not mean to exclude messages which are simultaneously
despatched to many. Each of these is in fact a separate message although identical in expression
with the others. Nor do I mean to emphasize the singular in the "one" and the "other." The senders
may be a body or collection of people, and the recipients may be a body or collection of people. The
difference is between definite individuals and a form of public performance, recital, or utterance.

It may be objected that by the licensing system broadcast listeners are defined and, although a
multitude, they are definite individuals. The objection rather misses the substance of the distinction.
But, in any case, it is not to the point, because it is not licensed but unlicensed reception that must
be considered in determining what is prohibited under the word "message."

It is not surprising if sec. 6 of the Act does not cover broadcast reception. It was passed in 1905
before broadcasting commenced. Of course a communication sent by radio could be picked up then,
as now, by anyone with a suitable receiver. But the object of the Act was to regulate uses of wireless
for purposes of communication like the telegraph and telephone. It was for that reason that the word
"message" was employed as part of the definition of the offence. It was for that reason also that
unauthorized appliances were made forfeit to the Crown by sec. 7.
The Wireless Telegraphy Act is a law with respect to postal, telegraphic, telephonic, and other like
services, enacted in the exercise of the power conferred upon the Parliament by sec. 51 (V.) of the
Constitution. Upon the construction which I have placed upon the statute, there is, I think, no doubt
of its validity. But, as I have already said, I am unable to concur in the opinion that the power is
wide enough to include wireless broadcasting and to support the statute if, upon its proper
interpretation, it authorizes Part III. of the Wireless Telegraphy Regulations 1924-1934, which deals
with broadcasting.

The grant of power contained in sec. 51 (V.) is expressed in a form plainly adopted in order that it
should include every present and future mode of performing the services called postal, telegraphic
and telephonic. The feature which the services, so described, possess in common is that they supply
an organized means of enabling people at a distance to communicate one with another either by
writing or by word of mouth.

The object of the postal service is to provide a system by which a missive may be dispatched by one
person and delivered to another. The missive is not necessarily a written message. It may be a
journal or a book or any physical thing susceptible of transmission through an organization ready to
undertake the task of receiving articles from individual senders, transmitting them and delivering
them to individual addressees. In postal services the physical identity of the missive is preserved.

A telegraphic service resembles the postal service in providing a system by which a communication
may be sent by one person for delivery to another separated from him by distance. But rapidity of
transmission is obtained by the use of signals, at first mechanical, but, later, electro-magnetic. This
means that the contents of the message are repeated. Perhaps the characteristics which differentiate a
telegraph from a postal service are the greater expedition of the telegraph, its limitation to messages
and the fact that the message is reproduced and not conveyed in its original material form.

A telephone service provides an inter-related system for oral communication at a distance. It
depends, so far at any rate, on the reproduction of sound by electro-magnetic devices. Its purpose is
to enable a definite person obtaining access to an instrument at a fixed point to interchange spoken
communication at a distance with another definite person having access to another such instrument.

They are all services because they consist in an established system organized for the purpose of
performing a function to satisfy the demands of the members of the community. The demand they
go to satisfy in common is for means of interchanging intelligence at a distance. The primary
requirement of the community they fulfil is for a method by which an individual who desires to
communicate with another at a distance may dispatch and have delivered to him his message, or
establish direct oral communication with him. No doubt the need of receiving communications, if
sent, is an important want of a community. The two things are mutual. But the ability of the
individual to originate the communication received is the first condition. The expression "other like
services" covers, I should think, every system or organized process of furnishing means of
individual inter-communication, notwithstanding that, at the time when the Constitution was
adopted, it was undiscovered and unthought of. The power, of course, extends to everything which
is incidental or arises out of the main purpose or its fulfilment. Moreover, although almost from
their respective beginnings these services have in Australia been conducted by Government, that is
not an essential characteristic.

Electric telegraph and telephone services may use metallic circuits or wireless. Wireless is used in
broadcasting, and broadcasting includes the transmission of speech to a distance. It affords an
advantage to the public by an organized system and, therefore, may be called "a service." But here,
in my opinion, the points of resemblance are exhausted.

Broadcasting provides a means by which those who secure for themselves an appropriate receiving
set may hear speeches, music, entertainments, announcements and the like, addressed to the public
at large from some central point. There is no inter-communication; no means is provided by which
one individual can originate a message or establish communication with another; there is nothing to
satisfy the purpose for which any of the enumerated services exist. It appears to me to be outside the
scope and purpose of the power. It is said that carrying on such an operation performs a service to
the public and that, according to high judicial authority, the adjective "telegraphic" may be applied
because the means adopted is wireless telephony and "telephony" is included in "telegraphy." This
does not meet the difficulty. It takes each of the two words "telephonic" and "service." It applies
each of them in a manner differing from that in which they are used in sec. 51 (V.). It then combines
them and requires the combination to serve the purpose of including a quite different thing. The
expression "postal, telegraphic and telephonic services" describes a well known category of public
services which, in my opinion, possessed definite characteristics. The addition of the expression
"other like" services emphasizes the fact that the category looked to those characteristics. In my
opinion altogether different characteristics belong to wireless broadcasting.

For these reasons I think the appeal should be allowed.

McTiernan J.

I agree that this appeal should be dismissed.

Since the decision of the Judicial Committee in In re Regulation and Control of Radio
Communication in Canada[24] the view must be accepted that broadcasting as established and
regulated by the regulations, made pursuant to the Wireless Telegraphy Act 1905-1919, may be
classed with telegraphic and telephonic services. It follows from this decision that sec. 51 (V.) of the
Constitution upon its true interpretation authorizes Parliament to legislate with respect to the service
of broadcasting. (See also Attorney-General v. Edison Telephone Co. of London[25] and Attorney-
General for New South Wales v. Brewery Employees Union of New South Wales[26], per Griffith
C.J., and cf. Halsbury's Laws of England, 1st ed., vol. 27, p. 350.)

But it is said that the provisions of the Wireless Telegraphy Act do not authorize the making of
regulations with respect to broadcasting, as the scope of the Act is limited to systems of transmitting
and receiving telegraphic or telephonic messages by means of electricity without a continuous
metallic connection between the transmitter and the receiver (see sec. 2 of the Wireless Telegraphy
Act 1905-1919). This contention depends on the view that the transmission of such messages does
not include broadcasting of programmes such as are provided for by the regulations. In my opinion
it is quite in accord with common usage to describe the transmission by radio of sounds representing
such programmes as the transmission of messages. The word "messages" in the Wireless Telegraphy
Act 1905-1919 was not intended to have a meaning more limited than it usually bears when applied
to the subject matter of wireless telegraphy and telephony.

Appeal dismissed. The appellant to pay costs of appeal including costs of first hearing before the
High Court but not of the subsequent further argument.

Solicitor for the appellant, T. F. Williams.
Solicitor for the respondents, W. H. Sharwood, Commonwealth Crown Solicitor.
[1] (1925) V.L.R. 350; 47 A.L.T. 12.
[2] [1931] USSC 76; (1931) 283 U.S. 191; 75 Law. Ed. 971.
[3] (1905) A.C., at p. 57.
[4] (1932) A.C. 304.
[5] (1880) 6 Q.B.D. 244.
[6] (1880) 6 Q.B.D., at p. 249.
[7] (1909) A.C. 269.
[8] [1877] USSC 167; (1877) 96 U.S. 1; 24 Law. Ed. 708.
[9] (1877) 96 U.S., at p. 9; 24 Law. Ed., at p. 710.
[10] (1932) A.C. 304.
[11] (1912) A.C. 333, at p. 342.
[12] (1932) A.C. 304.
[13] (1932) A.C., at p. 314.
[14] (1932) A.C., at p. 315.
[15] (1932) A.C., at pp. 315, 316.
[16] (1880) 6 Q.B.D. 244.
[17] (1925) V.L.R., at pp. 357, 358; 47 A.L.T., at p. 15.
[18] (1931) 283 U.S., at pp. 199-202; 75 Law. Ed., at pp. 976-978.
[19] (1925) V.L.R., at p. 358; 47 A.L.T., at p. 15.
[20] (1932) A.C. 304.
[21] (1932) A.C., at p. 314.
[22] (1880) 6 Q.B.D., at p. 258.
[23] (1933) 289 U.S., at p. 279; 77 Law. Ed., at p. 1175.
[24] (1932) A.C. 304.
[25] (1880) 6 Q.B.D. 244.
[26] (1908) 6 C.L.R., at p. 501.

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