Brebner v Bruce

Brebner, a police constable, laid a complaint against Donald Bruce in a South Australian court of summary jurisdiction for an alleged breach of regulation 63 of the Telephone Regulations. Regulation 63 criminalised the use of offensive or objectionable language over a telephone, or the mischievous use of a telephone to irritate or convey false messages. Bruce was found to have used offensive language, but the special magistrate dismissed the complaint on the grounds that the constable lacked authority from the Postmaster-General to lay it. An appeal to the Supreme Court of South Australia was dismissed on the same basis. The complainant appealed to the High Court.

The High Court was required to determine whether the authority of the Postmaster-General was necessary for a police constable to institute proceedings for an offence against the Telephone Regulations, or if section 13 of the Crimes Act 1914-1946 (Cth) permitted any person to institute such proceedings. Additionally, the Court had to consider whether regulation 63 was invalid as being beyond the regulation-making power conferred by the Post and Telegraph Act 1901-1949 (Cth), and whether the regulations needed to be formally proved in evidence before the magistrate.

A majority of the High Court, comprising Latham C.J., Webb, Fullagar, and Kitto JJ., held that section 13 of the Crimes Act applied, meaning any person could institute proceedings for an offence against the Commonwealth law unless a contrary intention appeared in the relevant Act or regulation. They found that the Post and Telegraph Act did not contain any express or implied provision to exclude the operation of section 13, and therefore the complaint was lawfully made. The Court reasoned that provisions such as those vesting administration in the Postmaster-General, or allowing him to depute officers to appear, or providing for domestic settlements of offences, did not demonstrate an intention to make the Postmaster-General the sole prosecutor. The Court also held that regulation 63 was a valid exercise of the regulation-making power and that, as regulations made under the Act had the force of law, a court would take judicial notice of them without formal proof. McTiernan J. dissented, finding that section 156 of the Post and Telegraph Act implied a contrary intention, suggesting that prosecutions for non-indictable offences were intended to be a departmental affair.

The High Court allowed the appeal, set aside the decisions of the Supreme Court and the special magistrate, and remitted the case to the special magistrate to be dealt with according to law. The Crown was ordered to pay the defendant's costs of the appeal.