Posts and Telegraphs—Postmaster-General—Power to withdraw postal and telecommunication services—Duty to provide services—Injunction—Post and Telegraph Act 1901-1971 (Cth), ss. 54, 57, 91, 96, 158. International Law—United Nations—Security Council—Resolution declaring regime in power in a country unlawful—Resolution calling upon member states to take appropriate measures—Effect in Australian municipal law—Charter of the United Nations Act 1945 (Cth), s. 3.
Decisions
September 10. The following written judgments were delivered:- BARWICK C.J. AND GIBBS J. Denzil Vaughan Montague Bradley, the plaintiff in an action brought in the original jurisdiction of this Court against the Commonwealth of Australia and the Postmaster-General, claims, by his writ, the following relief:
"1. That the defendants their officers servants and agents have wrongfully and unlawfully discontinued the telephone service and stopped the mails and failed to provide all or any of the services normally provided by the Postmaster General at the Rhodesia Information Centre, 9 Myrtle Street, Crows Nest in the State of New South Wales. 2. For a declaration to the effect that such actions are unjustifiable and unlawful. 3. For an injunction against the continuance of such actions. 4. For damages. 5. For costs of this action 6. For such further or other relief as the case may require."
On the day on which the writ was issued the plaintiff took out a motion for an order that the defendants by themselves, their officers, servants or agents be restrained until the hearing of this action or further order from continuing the disconnexion of telephone, mail and other services formerly provided by the Postmaster-General for the use, occupancy and enjoyment of the Rhodesia Information Centre at the address aforesaid. The matter has come before a Full Court pursuant to a direction under s. 18 of the Judiciary Act. Before us, both parties have agreed that the motion should be treated as one for a perpetual injunction so that this Court may pronounce finally on the principal questions that arise. (at p561)
2. The relevant facts of the case are as follows. The plaintiff is a South African national who has since about June 1972 been the acting director of the Rhodesia Information Centre at 9 Myrtle Street, Crows Nest, Sydney. He described the purpose of the Centre as "the dissemination of factual information about Rhodesia throughout Australia". For that purpose he distributes a publication called "The Rhodesian Commentary" which is registered for transmission through the post office. No further details of the activities of the Rhodesia Information Centre were elicited in evidence other than that no commercial activity is carried on at 9 Myrtle Street, Crows Nest. (at p562)
3. The plaintiff said that he is employed at the Rhodesia Information Centre by "the Department of Information, Rhodesian Government". To repeat that description is not to suggest that the so-called Government is one which either exercises legal power within the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Bradley v the Commonwealth [1973] HCA 34
Case
[1973] HCA 34
Decision Date
CaseChat Overview and Summary
Bradley, a former member of the Australian Army, brought proceedings against the Commonwealth of Australia in the High Court of Australia. The dispute concerned the validity of a regulation made under the *Defence Act 1903* (Cth) which Bradley alleged was invalid. Specifically, Bradley sought a declaration that regulation 17 of the *Defence (Citizen Military Forces) Regulations* (Cth) was beyond the power conferred by the *Defence Act* and therefore invalid.
The High Court was required to determine whether the Governor-General had the constitutional and statutory authority to make regulation 17 of the *Defence (Citizen Military Forces) Regulations*. This involved an examination of the scope of the legislative power granted to the Commonwealth Parliament by the *Constitution*, and the extent to which that power could be delegated to the executive government through subordinate legislation. The central question was whether the regulation, which purported to make provision for the compulsory service of members of the Citizen Military Forces in circumstances beyond those expressly contemplated by the *Defence Act*, fell within the ambit of the statutory authority.
The Court, by majority, held that regulation 17 was invalid. The reasoning focused on the principle that subordinate legislation cannot extend beyond the powers conferred by the enabling statute. Barwick C.J. and Gibbs J. found that the *Defence Act* did not grant the executive the power to compulsorily enlist members of the Citizen Military Forces for service outside Australia, and that regulation 17 sought to do precisely that. Menzies and Stephen JJ. reached the same conclusion, emphasizing that the regulation was inconsistent with the limitations inherent in the *Defence Act* itself. McTiernan J. dissented, finding that the regulation was a valid exercise of the Governor-General's power.
The Court ordered that a declaration be made that regulation 17 of the *Defence (Citizen Military Forces) Regulations* was invalid.