Broadcasting Co of Australia Pty Ltd v The Commonwealth

The High Court of Australia considered a demurrer filed by the Commonwealth of Australia against broadcasting companies, Broadcasting Co. of Australia Pty. Ltd. and Associated Radio Co. of Australia Ltd. The dispute arose from a regulation enacted on 7 August 1928, which purported to reduce the remuneration payable to these companies for broadcasting services. This reduction was made to operate retrospectively from 1 November 1927, impacting fees that had already accrued to the companies.

The central legal issue before the Court was the validity of the regulation, specifically clause (2) which stipulated its retrospective commencement date. The plaintiffs argued that this retrospective operation was beyond the scope of the regulatory power granted by section 10 of the Wireless Telegraphy Act 1905-1919, as it interfered with their accrued rights to remuneration for services already rendered. The defendants contended that the regulation was valid, arguing that the licensing terms incorporated all future regulations and that the retrospective aspect was merely a method of calculation rather than an invalid interference with vested rights.

A majority of the High Court, comprising Gavan Duffy C.J., Rich, Evatt, and McTiernan JJ., held that clause (2) of the regulation was void. Their reasoning was twofold: firstly, the retrospective operation was inconsistent with section 10 of the Acts Interpretation Act 1904-1930, which governs the commencement of regulations. Secondly, and more broadly, the regulation was deemed void because it attempted to alter and set aside the accrued rights to remuneration for services already provided. The majority found that such a retroactive alteration was not within the power granted to the Governor-General by section 10 of the Wireless Telegraphy Act, as it did not serve the purpose of carrying out or giving effect to the Act. Rich J. specifically noted that diminishing remuneration for services already rendered was neither required nor permitted by the Act, nor necessary or convenient for its implementation. Starke J. dissented, finding the regulation valid, arguing that the licensing terms were subject to future regulations and that the retrospective operation was permissible within the broad regulatory power granted.

The demurrer was overruled with costs, meaning the plaintiffs' action could proceed on the basis that the retrospective operation of the regulation was invalid.