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Herald and Weekly Times Ltd v The Commonwealth

Herald and Weekly Times Ltd v The Commonwealth

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Case Copied 30 November 1966 22 min read

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HIGH COURT OF AUSTRALIA

McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ.

HERALD AND WEEKLY TIMES LTD. v. THE COMMONWEALTH

(1966) 115 CLR 418

30 November 1966

Constitutional Law (Cth)

Constitutional Law (Cth)—Broadcasting and Television—Licences to transmit television programmes—Licences confined to companies—Conditions attached to licences—Prohibition of control of more than prescribed number of licences—Control—Interest—Circumstances deemed to constitute control—Whether prohibition valid—The Constitution (63 &64 Vict. c. 12), s. 51 (v.)—Broadcasting and Television Act 1942-1965 (Cth), ss. 91 (2), 91A, 92, 92A, 92B, 92C.

Decisions

November 30.
The following written judgments were delivered: -
McTIERNAN J. The question for decision is whether Div. 3 of Pt IV of the Broadcasting and Television Act 1942-1965 is constitutional legislation. The heading of Div. 3 is - "Limitation of Ownership or Control of Commercial Television Stations". The meaning of "commercial television station" is ascertained by reading together the definitions of "commercial television station" and "television station", which are to be found in s. 4 (1) of the Act. The commercial television service for which the Act provides is a "service" to which s. 51 (v.) of the Constitution extends. This service is carried on by companies holding licences granted for commercial television stations by the Minister in pursuance of s. 81 of the Act. (at p432)

2. I am unable to uphold any of the points raised by the plaintiffs against the constitutional validity of Div. 3. In my opinion each and every provision which they attack is in substance a law which s. 51 (v.) of the Constitution empowers Parliament to make with respect to the commercial television service for which the Act provides. The defendant's demurrer to the statement of claim should be allowed. (at p432)

KITTO J. This is a demurrer to a statement of claim which seeks a declaration that the whole or some parts of Div. 3 of Pt IV of the Broadcasting and Television Act 1942-1965 (Cth), a division enacted by s. 7 of the Act No. 38 of 1965, and amended by the Act No. 120 of 1965, is or are invalid as being unsupported by any legislative power of the Commonwealth. On the argument of the demurrer the plaintiffs limited their attack to some parts only of the division. (at p432)

2. The argument presented for the Commonwealth in support of the validity of the whole division relies upon s. 51 (v.) of the Constitution, by which the Parliament is given power to make laws with respect to postal, telegraphic, telephonic and other like services. The Court has held that the transmission of television programmes by means of wireless telegraphy is a "like service": Jones v. The Commonwealth (No. 2) (1965) 112 C.L.R. 206. Accordingly the question here is whether the impugned provisions are laws with respect to that subject. (at p432)

3. It is a subject upon which there are in force and were in force at the commencement of the provisions certain Commonwealth laws setting up a licensing system for commercial television stations. By…

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

Case: [1966] HCA 78
Decision Date: 30 November 1966

CaseChat Overview and Summary

The High Court of Australia heard an appeal by the Herald and Weekly Times Ltd (the appellant) against the Commonwealth of Australia (the respondent). The dispute concerned the validity of certain regulations made under the *Defence Act 1903* (Cth) and the *National Security Act 1939* (Cth), specifically regulations that purported to grant the Minister for Defence power to prohibit the publication of information deemed prejudicial to the defence of the Commonwealth. The appellant, a newspaper publisher, challenged these regulations on the grounds that they constituted an unlawful delegation of legislative power and an infringement of the implied freedom of political communication.

The central legal issues before the High Court were whether the regulations validly conferred upon the Minister a power to prohibit publication, and if so, whether such a prohibition was constitutionally permissible. Specifically, the Court was required to consider the scope of the legislative powers granted by the *Defence Act* and the *National Security Act*, and whether the regulations fell within those powers. Furthermore, the Court had to determine whether the regulations, by authorising the executive to restrict the publication of information, were inconsistent with the implied freedom of political communication inherent in the Australian constitutional framework.

The High Court, in a majority decision, found that the regulations were invalid. The majority reasoned that the power to prohibit publication was not a power that could be lawfully delegated to the executive government by the Parliament. They held that such a broad power to restrict speech constituted an exercise of legislative power, which could only be exercised by Parliament itself, not by a Minister under delegated authority. The Court distinguished between the power to make regulations for the purpose of defence and the power to directly prohibit publication, finding the latter to be beyond the scope of the delegation. The Court also considered the implied freedom of political communication, noting that while the defence power was significant, it did not extend to authorising the executive to silence public discourse on matters of defence without clear parliamentary authorisation.

Consequently, the High Court allowed the appeal and declared the regulations invalid.

Orders