Miller v TCN Channel Nine Pty Ltd

[1986] HCA 60

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ.

MILLER v. TCN CHANNEL NINE PTY LTD

(1986) 161 CLR 556

21 October 1986

Constitutional Law (Cth)

Constitutional Law (Cth)—Freedom of interstate trade and commerce—Prohibition of establishment, erection, maintenance and use of station for transmission or receipt of wireless telegraphy messages without permit—Uncontrolled discretion to grant or refuse permit—Whether regulatory law—Validity—Severance—Whether guarantee of freedom of communication implied by Constitution—The Constitution (63 &64 Vict. c. 12), s. 92—Acts Interpretation Act 1901 (Cth), s. 15A—Wireless Telegraphy Act 1905 (Cth), ss. 4, 5, 6, 7.

Decisions

GIBBS C.J.: The facts of this case and the relevant provisions of the Wireless Telegraphy Act 1905 (Cth) as amended ("the Act") are set out in the judgment of Wilson J., which I have had the advantage of reading and I need not repeat them. It is enough to say that the defendant's station at Somersby was erected, maintained and used for the purpose of receiving and transmitting television signals between Sydney and Brisbane; it was erected, maintained and used only for the purpose of serving as a link in a chain of stations for the transmission of messages between a television station in Sydney and another television station in Brisbane. Other links were provided by the Australian Telecommunications Commission for that purpose, but there were occasions when they were not available to carry the defendant's messages. The erection and maintenance by the defendant of the station is said to constitute an offence against s.6(1)(a) of the Act. That provision prohibits the establishment, erection, maintenance or use of any station or appliance for the purpose of transmitting or receiving messages by means of wireless telegraphy except as authorized by or under the Act. It was conceded that the transmission of the messages between Sydney and Brisbane constituted activities of interstate trade, commerce or intercourse.

2. Although it was originally thought that the argument would challenge accepted assumptions as to the effect of s.92 of the Constitution, in the event the submissions fell within quite a narrow compass. There were three broad issues - first, whether either the erection or the maintenance of the station by the defendant is within the protection of s.92, second, if so, whether the provisions of the Act can nevertheless be justified as regulatory, and third, whether, if some of the prohibitions imposed by the Act are invalid and others are valid, it is possible to sever the good from the bad.

3. In Uebergang v. Australian Wheat Board (1980) 145 CLR 266, at p 298, I joined with Wilson J. in thinking that it remains apt to say, as Dixon J. said in Gatwick v. Johnson (1945) 70 CLR 1, at p 19, that "in questions concerning the application of s.92 of the Constitution ... it has become desirable for the Court to avoid as far as possible the statement of general propositions and in each case to decide the matter, so far as may be, on the specific considerations or features which it presents". In the present case, little discussion of principle is required to establish that the prohibition effected by s.6 of the unauthorized use of a station for the purpose of transmitting or receiving messages by means of wireless telegraphy must be invalid in its operation on transmissions and receipts made in the course of interstate trade, commerce or intercourse, unless the prohibition can be upheld as regulatory. The transmission and receipt of the messages between Sydney and Brisbane formed part of the defendant's trade, commerce or intercourse and the prohibition on unauthorized use restricted that trade, commerce or intercourse "directly and immediately" within the principle laid down in The Commonwealth v. Bank of N.S.W. (1949) 79 CLR 497, at p 639; (1950) AC 235, at p 310. That would be so even if one were to have regard to the practical effect of the Act rather than to its legal effect. It is immaterial that the Act forbids the use of a station for intrastate as well as interstate transmission; see The Commonwealth v. Bank of N.S.W., at p 636; p 306 of AC It is equally immaterial that another means of transmitting messages was usually available; a legislature cannot justify a restriction of one form of interstate communication by saying that it has provided another, just as the Commonwealth could not justify the exclusion from interstate trade of airline carriers other than its own instrumentality by saying that that instrumentality was bound to provide adequate services: see Australian National Airways Pty. Ltd. v. The Commonwealth (1945) 71 CLR 29.

4. The same conclusion must, I consider, be reached in relation to the prohibition of the unauthorized maintenance of a station. "Maintain", in the section, clearly enough means "keep in working order". The maintenance of a station is an inseparable concomitant of its use, for mechanical installations must be kept in working order if they are to be used, and the maintenance of a station used in interstate trade, commerce or intercourse is an inseparable concomitant of that trade, commerce or intercourse. It therefore enjoys the same protection as that afforded by s.92 to the interstate trade, commerce or intercourse itself: see North Eastern Dairy Co. Ltd. v. Dairy Industry Authority of N.S.W. (1975) 134 CLR 559, at p 599; Perre v. Pollitt (1976) 135 CLR 139, at p 151; Australian Coarse Grains Pool Pty. Ltd. v. Barley Marketing Board (No.2) (1985) 59 ALJR 516, at p 520; 59 ALR 641, at p 647, and cases there cited.

5. The prohibition of the establishment and erection of a station stands in a different situation. It has been held that a restriction on the manufacture of a commodity intended for use exclusively in interstate trade does not infringe s.92: Beal v. Marrickville Margarine Pty. Ltd. (1966) 114 CLR 283, following Grannall v. Marrickville Margarine Pty. Ltd. (1955) 93 CLR 55. The reason for those decisions was that manufacture, although an essential preliminary condition to interstate trade in the commodity manufactured, forms no part of that trade; it precedes it and is outside the freedom conferred by s.92, see Grannall, at pp.71-72; Beal, at p.300. On the same principle, prohibition of the importation from abroad of an aircraft intended for use in interstate trade does not infringe s.92: Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd. (1965) 113 CLR 177; Ansett Transport Industries (Operations) Pty. Ltd. v. The Commonwealth (1977) 139 CLR 54. Similarly, quotas, or a tax, on hens kept for the production of eggs intended to be sold in the course of interstate trade do not infringe s.92: Bartter's Farms Pty. Ltd. v. Todd (1978) 139 CLR 499; Damjanovic &Sons Pty. Ltd. v. The Commonwealth (1968) 117 CLR 390. No doubt the prohibition or restriction of the manufacture, production or importation of something to be used in the course of interstate trade would have a practical effect, and a seriously adverse one, on the proposed trade but those authorities establish that that is not enough to attract the protection of s.92 to activities which are anterior to the interstate trade and which do not form an inseparable concomitant of it. It is true that the distinction between something which is an inseparable concomitant of interstate trade and something which precedes it may in some cases be difficult to draw. However the distinction is a real one and it is well recognized in the authorities. I find it impossible to distinguish the manufacture, production and importation of goods intended for use in interstate trade, commerce or intercourse on the one hand from the erection of a wireless telegraphy station also intended for such use on the other. The erection of the station, like the manufacture, production or importation of the goods, precedes the interstate trade, commerce or intercourse and is not a concomitant of it. The line to be drawn may be a fine one but the distinction is soundly drawn. It is well accepted that words of the Constitution which confer power should not be narrowly construed, but that does not mean that the words of s.92, which restrict power, should be given an expanded meaning with the consequence that activities which themselves do not answer the description of trade, commerce or intercourse among the States and are not inseparable concomitants thereof should be placed outside the capacity of any legislature to prohibit or restrict except in a manner that could be justified as regulatory. I conclude that a prohibition of the unauthorized establishment or erection of a station, if it stood alone in the Act, would not be rendered invalid by reason of s.92.

6. The Act, in so far as it prohibits the unauthorized maintenance or use of stations, cannot in my opinion be justified as merely regulatory. It is true that the transmission and receipt of messages by wireless telegraphy is an activity which requires regulation in the public interest. The radio frequency spectrum is a limited resource and a failure to regulate its use would render radio communications ineffective and would be likely to cause very serious loss and inconvenience, and possible danger to the lives of those who travel by air. However the Act gives the Minister an uncontrolled discretion to grant or refuse a licence to use or maintain a station. Such a statute cannot validly apply to interstate trade: see Ackroyd v. McKechnie (1986) 60 ALJR 551; 66 ALR 287 and cases there cited. We were referred to the regulations made under the Act; they impose obligations on the licensee but do not fetter the discretion of the Minister to grant or refuse a licence. The administrative procedures followed under the Act may well be entirely reasonable, but as was recently reaffirmed in Ackroyd v. McKechnie, "in considering the validity of a statute which is said to infringe s.92, the Court must consider the law according to its own terms, and the fact that the actual administration of the law may not be inconsistent with s.92 is immaterial". The fact that the decision of the Minister may be subject to judicial review does not alter the position; the discretion remains one that is not controlled by any certain and definite criteria.

7. The learned Solicitor-General relied on a dictum of their Lordships in James v. The Commonwealth (1936) 55 CLR 1, at pp 54-55; (1936) AC 578, at pp 625-626, where, speaking of a provision in the Post and Telegraph Act 1901-1923 (Cth) which forbade and made it an offence subject to specified exceptions to send or carry a letter for reward otherwise than by post, their Lordships said that "it is ... a limitation notoriously existing in ordinary usage in all modern civilized communities; it does not impede freedom of correspondence, but merely as it were, canalizes its course just as 'free speech' is limited by well known rules of law", and went on to say, "very much the same is true of the Wireless Telegraphy Act 1905". Two comments may be made on this dictum. In the first place, there has been much refining of thought regarding the effect of s.92 since James v. The Commonwealth was decided. Secondly, whatever may be said of the Post and Telegraph Act, the Wireless Telegraphy Act did not merely canalize the course of communications made by wireless telegraphy. The Act contemplated that licences might be granted and the stated case shows that as at 31 December 1983 some 481,700 radio communication licences under the Act had been issued. The scheme of the Act is to give the Minister a very tight control of, inter alia, the maintenance and use of stations but it does not merely canalize messages sent by wireless telegraphy into a system which the Commonwealth has provided. In any case the dictum would not lead me to depart from the conclusion which both principle and authority requires.

8. The final question that remains is whether it is possible to sever the provisions which prohibit the unauthorized establishment and erection of stations (which by themselves would be valid) from the remaining provisions of the Act, some of which are invalid. This is a question on which I have experienced considerable difficulty. It will be observed that the prohibitions effected by s.6 all form part of one connected provision. The breach of any one of those prohibitions results in the forfeiture of any appliance erected, maintained or used in contravention of the Act: s.7(1). Section 6 may be regarded as simply giving effect to the provisions of s.4 which gives the Minister the exclusive privilege of establishing, erecting, maintaining and using stations for the purpose (inter alia) of transmitting messages by wireless telegraphy within Australia and receiving messages so transmitted. Nevertheless if the reference to maintenance and use is removed from s.6 the effect of the remaining provisions is exactly the same. Section 15A of the Acts Interpretation Act 1901 (Cth), as amended, establishes "a presumption in favour of the independence, one from another, of the various provisions of an enactment, to which effect should be given unless some positive indication of interdependence appears from the text, context, content or subject matter of the provisions": Fraser Henleins Pty. Ltd. v. Cody (1945) 70 CLR 100, at p 127; Australian National Airways Pty. Ltd. v. The Commonwealth (1945) 71 CLR 29, at p 92. Section 6 prohibits a number of activities which are separately described, and its operation and effect upon the activities to which it can validly apply (establishment and erection) would be unchanged if the reference to the other activities (maintenance and use) were excised; in these circumstances there is no difficulty in separating the good from the bad: see R. v. Poole; Ex parte Henry (No. 2) (1934) 61 CLR 634, at p 652; Pidoto v. Victoria (1943) 68 CLR 87, at pp 110-111. Moreover, there is nothing in the Act that indicates an intention that the whole of its provisions should fail if any part of them should fail. There would be nothing surprising in an intention to prohibit the unauthorized establishment and erection of a station, even if the prohibition of its use and maintenance should prove ineffective. In my opinion effect should be given to the presumption that the legislature intended to prohibit the unauthorized establishment or erection of stations even if it could not prohibit their maintenance or use in the manner in which it has attempted to do. Indeed the substantial purpose of the Act will be achieved, in most cases at least, if the prohibition of establishment and erection is valid.

9. For these reasons I have reached the conclusion that although the provisions of the Act which deal with maintenance and use are invalid those which deal with the establishment and erection of stations are valid. The conclusion that the Act is in part invalid is, of course, cold comfort to the defendant in the present case.

10. In the alternative, it was submitted by the defendant, in reliance on views expressed by Murphy J. in Buck v. Bavone (1976) 135 CLR 110, at p 137, and later cases, that it is possible to imply into the Constitution a guarantee of freedom of communication. This suggestion was a corollary of the theory that s.92 forbids only discriminatory fiscal burdens - a theory which the authorities have consistently rejected and which finds no support in the words of the section itself. Section 92 leaves no room for an implication of the kind suggested.

11. I would answer the questions asked in the stated case as follows:

1. Does section 92 of the Constitution prevent the application of sections 4, 5, 6(1) and 7(1) of the Wireless Telegraphy Act 1905 or any of those sections to the actions of the defendant described in paragraphs 2 to 5 hereof?

Answer: Yes, but only in so far as those sections deal with the maintenance or use of the station or appliance.

2. Does any implied constitutional guarantee prevent the application of sections 4, 5, 6(1) and 7(1) of the Wireless Telegraphy Act 1905 to the actions of the defendant described in paragraphs 2 to 5 hereof?

Answer: No.

MASON J.: Although it seemed that the stage had been set for the presentation of an argument which would invite a fundamental reconsideration of the interpretation of s.92 of the Constitution, the arguments actually presented in this case followed orthodox lines, except in so far as an endeavour was made to support Murphy J.'s fiscal burden theory. It was not submitted that the section should be read as a prohibition against the imposition on inter-state trade of burdens of a discriminatory kind, a view that in my opinion has much to commend it (see Finemores Transport Pty. Ltd. v. New South Wales (1978) 139 CLR 338, at p 352). Nor was it submitted that the section might be read as a guarantee of the freedom of inter-state trade as at the frontier, to mention another interpretation that gives effect to the view that s.92 is the expression of a free trade concept.

2. The history of border tariffs and protectionism in the Australian colonies before Federation, the position of the section in Ch. IV of the Constitution headed "Finance and Trade" and the fact that the section provided that the freedom was not to come into operation until the imposition of uniform duties of customs, all combine to suggest that the freedom is either limited to fiscal charges or that it embodies a wider notion of free trade (Zines, The High Court and the Constitution (1981) p.80). And the development in recent times of the law relating to the review of the exercise of administrative discretions diminishes, if it does not eliminate, what was thought to be a weakness in the free trade interpretation of the section expounded by Evatt J. in such cases as Peanut Board v. Rockhampton Harbour Board (1933) 48 CLR 266, and R. v. Vizzard; Ex parte Hill (1933) 50 CLR 30.

3. I have previously expressed the view that, notwithstanding the Privy Council's approval in James v. Cowan (1932) 47 CLR 386, at p 398, of Isaacs J.'s dissenting judgment in this Court ((1930) 43 CLR 386, at p.418), where his Honour said that s.92 conferred "a personal right attaching to the individual and not attaching to the goods", the section does not speak of the private right of the individual to engage in inter-state trade and commerce; instead it refers to that trade and commerce as an entire and total concept (Pilkington v. Frank Hammond Pty. Ltd. (1974) 131 CLR 124, at p 185). In that case and later in North Eastern Dairy Co. Ltd. v. Dairy Industry Authority of N.S.W. (1975) 134 CLR 559, at pp 614-615, I mentioned the predominant public character of the provision and that the protection which it gives to the rights of the individual is "incidental to and consequential upon the protection which is given to the entire concept of interstate trade".

4. True it is that this approach has been criticized by some members of the Court - see Uebergang v. Australian Wheat Board (1980) 145 CLR 266. However, this criticism depends very largely on acceptance of the proposition that the constitutional provision is a guarantee of individual rights in the light of the weight of authority which supports that view. To say that this interpretation seems to draw too heavily on the laissez-faire notions of political economy prevailing in 1900 is merely to express in different language what I have said elsewhere (North Eastern Dairy, at p.615).

5. But this in one sense is by the way. For present purposes what is important is the divergence of views expressed by the members of the Court in Uebergang. The judgments in that case demonstrate in convincing fashion that there is now no interpretation of s.92 that commands the acceptance of a majority of the Court. There is much to be said for the view that in this situation the Court has a responsibility to undertake a fundamental re-examination of the section. Nonetheless, if such a re-examination is to take place, it should be undertaken after we have had the benefit of comprehensive argument, an advantage which we have not enjoyed in this case.

6. If I were at liberty to adopt the interpretation of s.92 for which I have previously expressed a preference, or some similar interpretation, it is unlikely that I would conclude that the relevant sections of the Wireless Telegraphy Act 1905 (Cth) ("the Act") are invalid. The Act does not appear to impose discriminatory burdens on inter-state trade or to authorize the imposition of burdens of that kind. But this is to make no more than a passing comment because the conclusion which I have reached on the arguments actually presented is that the Act does not impose a burden on inter-state trade.

7. The defendant's case was that s.6(1)(a) of the Act imposes a direct burden on inter-state trade and commerce by prohibiting, except as authorized by or under the Act, the establishment, erection, maintenance or use of a station or appliance for the purpose of transmitting or receiving messages by means of wireless telegraphy. The prohibition contained in s.6(1)(b) falls into a similar category, according to the defendant, though it lacks some of the complications associated with s.6(1)(a). However, it has no direct application to the offences of erection and maintenance of a station with which the defendant has been charged.

8. Inter-state communication by means of wireless telegraphy is an example of inter-state trade, commerce or intercourse within the meaning of s.92 (Hospital Provident Fund Pty. Ltd. v. State of Victoria (1953) 87 CLR 1, at pp 14-15; H.C. Sleigh Ltd. v. South Australia (1977) 136 CLR 475, at p 507). The use of a station for the purpose of transmitting or receiving such communications is just such an example of inter-state trade, commerce or intercourse. But what of the erection or maintenance of a station for such a purpose? Can it be said that erection or maintenance in this context is an element of that trade, commerce or intercourse, so that a prohibition on the activity contravenes s.92? Or, alternatively, can it be said that even if erection or maintenance is not such an element, the prohibition is nonetheless a burden on that trade, commerce or intercourse?

9. The defendant relied on the so-called "criterion of operation", the principle enunciated by Dixon C.J. in Hospital Provident Fund, at pp.17-18, though in the light of the recent decisions and their reasoning, it can no longer be accepted as the principle which necessarily governs the interpretation of s.92. The criterion of operation was reiterated and applied in later cases and coupled with the doctrine of "circuitous device" - see for example, Wragg v. State of New South Wales (1953) 88 CLR 353; Grannall v. Marrickville Margarine Pty. Ltd. (1955) 93 CLR 55; Mansell v. Beck (1956) 95 CLR 550, at pp 564-565. Rather than set out the statement in Hospital Provident Fund, for convenience I quote the statement in the joint judgment of Dixon C.J. and Webb J. in Mansell v. Beck (at pp 564-565) because it incorporates a reference to the "circuitous device" doctrine on which the defendant also relies. With reference to a law impairing the freedom assured by s.92, their Honours said:

"To give a law that character it is not enough that there are or may be transactions of inter-State trade, commerce or intercourse that are adversely affected by the operation of the law. That may be a consequence of a law which is not concerned with any fact, matter or thing forming part of inter-State trade, commerce or intercourse but takes for its operation events or circumstances or conduct which of their own nature do not fall within that conception and do not constitute or necessarily include any essential element or attribute of trade, commerce and intercourse among the States. A law which imposes restrictions or burdens upon some description of act matter or thing not of its own nature forming part of inter-State trade, commerce or intercourse and does so because of some characteristic which is independent of any element entering into that conception is very unlikely to be found to destroy impair or detract from the freedom secured by s.92. It may conceivably do so if upon examination of the facts and scrutiny of its intended operation it appears that in spite of the prima-facie absence of any but an accidental interference with inter-State trade, commerce and intercourse the law is but a circuitous means of burdening, restricting or impeding operations of a kind which s.92 protects."

10. In the more recent cases beginning with North Eastern Dairy, the criterion of operation has steadily ceased to play a prominent part in the reasoning of the Court in decisions on s.92, partly because it attaches too much weight to the legal operation of a law and too little to its practical operation, thereby opening the way to circumvention, and partly because it leads to unsatisfactory results, notably by conferring an undue advantage on the inter-state trader as compared with the intra-state trader. In North Eastern Dairy the Court had regard to the practical operation of the law in concluding that it was discriminatory and in considering whether it could be sustained as a reasonable regulation of inter-state trade (pp.588-589, 606-607, 622).

11. What is meant by an "essential element or attribute" of trade, commerce and intercourse among the States in the passage just quoted is not altogether clear. What is clear is that, in conformity with the formalistic legal reasoning that has hitherto dominated the interpretation of the section, a distinction has to be drawn between essential and incidental attributes of that trade, commerce and intercourse, just as a distinction has to be drawn between the proscribed burdens which are direct and immediate, and those which are indirect, consequential and remote and are therefore not proscribed. When the section is so understood, the area of protection given by s.92 to inter-state trade, commerce and intercourse is significantly less than the area within which the legislative power under s.51(i) may be exercised. This difference in content has been ascribed to the presence of the words "with respect to" in the constitutional expression of the legislative power.

12. The importance of the difference is illustrated by the circumstance that, although this Court has held that the legislative power with respect to overseas trade and commerce (s.51(i)) extends to "slaughter for export" (O'Sullivan v. Noarlunga Meat Ltd. (1954) 92 CLR 565, at pp 596-597), the Court has consistently refused to regard production for inter-state trade as falling within the protection of s.92 (Grannall; Beal v. Marrickville Margarine Pty. Ltd. (1966) 114 CLR 283; Bartter's Farms Pty. Ltd. v. Todd (1978) 139 CLR 499). In Grannall the Court pointed out (at pp 71-72) that, though production within, or importation into, the Commonwealth is an essential preliminary condition to inter-state trade in goods, this was not a reason for extending the protection given by s.92 to activities antecedent to the commencement of that trade. These decisions proceed on the footing that there can be no trade in goods until they come into existence. See Australian Coarse Grains Pool Pty. Ltd. v. Barley Marketing Board (No. 2) (1985) 59 ALJR 516, at p 527; 59 ALR 641, at p 659. Consistently with these decisions the imposition of a duty on the keeping of hens used in the production of eggs for inter-state trade was held not to be a burden on that trade (Damjanovic &Sons Pty. Ltd. v. The Commonwealth (1968) 117 CLR 390). The point is that neither production, nor an activity essential to production, is an essential attribute of inter-state trade.

13. Subsequently, in accordance with what had been said in Grannall, the Court held that prohibition of the importation into Australia of aircraft to be used for the purpose of inter-state air transportation did not contravene s.92 because importation is antecedent to the commencement of the relevant inter-state trade (Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd. (1965) 113 CLR 177; Ansett Transport Industries (Operations) Pty. Ltd. v. The Commonwealth (1977) 139 CLR 54). For my part I consider that importation stands outside the protection given by s.92 on the independent ground that the Constitution confers upon the Commonwealth Parliament an unqualified power and control over exports and imports as well as customs duties (Coarse Grains, at p.527; p.660 of ALR). But this was not an element in the reasoning in Ipec-Air.

14. Importation, like production, is not an essential attribute of inter-state trade, commerce or intercourse. This is because, in the context of the criterion of operation, an essential attribute is one which gives the relevant transaction its character as inter-state trade, commerce or intercourse (Hughes and Vale Pty. Ltd. v. The State of New South Wales (No. 2) (1955) 93 CLR 127, at p 162). The distinction is between something which is of the essence of that trade, commerce or intercourse, e.g., a sale of goods, a communication, and something which is not of the essence, e.g., an antecedent or preparatory act or activity.

15. This brief survey of the decisions and the reasoning on which they are based provides no support at all for an argument that an act or activity antecedent to the commencement of inter-state trade, even if it be a sine qua non of that trade, is entitled to the constitutional protection. Nor does the survey sustain the view that the erection of a station for the purpose of transmitting and receiving inter-state communications by wireless telegraphy is anything but an antecedent activity preparatory to the commencement of that trade. If, as has been held, the production of goods with which a person intends to engage in inter-state trade stands outside the constitutional protection, so must the erection of the station in the present case. It is one step more remote from that trade, for the simple reason that it involves the installation of the structure and the equipment that enables the inter-state signal to be transmitted and received. In the language of the cases the erection of the station is not an attribute of inter-state trade, let alone an "essential attribute" of it. A similar comment may be made about maintaining the station, though it is not quite so remote. In the context of s.6(1)(a) the word "maintain" means "keep in good order ready for use".

16. The defendant seeks to overcome this problem by relying on the circuitous device element in the statement of principles quoted from Mansell v. Beck, in order to attack the prohibitions against erection and maintenance, asserting that they constitute a circuitous or devious means of barring or burdening the sending and receipt of inter-state communications. The strength of this aspect of the defendant's case is that the prohibition against erection and maintenance of a station in s.6(1)(a) is not expressed as an unqualified prohibition. It is a prohibition against erecting or maintaining a station or appliance for the purpose of transmitting and receiving messages by wireless telegraphy, that is for a purpose which includes essential attributes of inter-state trade, commerce and intercourse. The very form of the prohibition suggests that its only purpose is to forbid inter-state communication by means of wireless telegraphy except in accordance with the statutory scheme. Support for the view that this is the real and substantial purpose of s.6(1) is provided by s.6(1)(b) which prohibits the transmission or receipt of messages by wireless telegraphy.

17. On the other hand the reference to purpose loses much of the significance which it might otherwise have once it is seen that the reference to purpose is largely descriptive or adjectival. It describes and identifies the stations and the appliances that are the subject of the prohibition in s.6(1)(a) in much the same way as if they had been loosely described as "any wireless telegraphy station, or appliance". So understood sub-s.(1)(a) does no more than describe and identify the stations and the appliances which are the subject of the prohibition.

18. But even if this were not so, the "circuitous device" doctrine does not come to the defendant's aid here. The concept put forward was an addendum to the criterion of operation because that doctrine, with its focus on the legal, rather than on the practical, operation of a law, was vulnerable to circumvention. But the concept was not developed in such a way that it became a doctrine in its own right, grounded in the practical operation of a law, identifying practical or economic consequences as impediments to inter-state trade. As I shall show by reference to the decided cases, the concept seems to have been virtually devoid of content. No law has ever been struck down on the expressed ground that it burdened inter-state trade by means of a circuitous device, though it has been suggested that Vacuum Oil Co. Pty. Ltd. v. Queensland (1934) 51 CLR 108; Fish Board v. Paradiso (1956) 95 CLR 443, and Wilcox Mofflin Ltd. v. State of N.S.W. (1952) 85 CLR 488, may be capable of explanation on this footing.

19. The concept added little, if anything, to the criterion of operation because the decisions in the cases seem to proceed on the footing that if, applying the criterion of operation, no contravention of the Constitution by the statute was shown, that was the end of the matter. If all the statute did was to impose a prohibition, restriction or burden on a step antecedent or preparatory to the commencement of inter-state trade there was no contravention of s.92, even if there was a statutory or executive purpose of interfering with trade. It seems that, in conformity with its general philosophy or policy, the Court was not prepared to take the circuitous device concept to the point of examining and pronouncing upon the practical and economic consequences of a statute. Be this as it may, the combination of prohibition against an antecedent or preparatory act with a purpose of interfering with inter-state trade does not amount to a circuitous device. The difficulty, indeed the impossibility, of bringing the present case within the concept is illustrated by the comments of Dixon C.J., McTiernan, Webb and Kitto JJ. in Grannall (at p.78). In discussing the concept their Honours were at pains to point out that they were referring to a possible situation in which an essential attribute of inter-state trade "is made the subject of the operation of a law which by reference to it or in consequence of it imposes" circuitously, deviously or covertly some restriction or burden or liability. They went on to say:

"But generally speaking, it will be quite otherwise if the thing with reference to or in consequence of which the law operates or which it restricts or burdens is no part of inter-State trade and commerce and in itself supplies no element or attribute essential to the conception. It will not be enough that it affects something which, because it is a sine qua non to the existence of some subject of the freedom which s.92 guarantees, has a consequential effect on what might otherwise have been done in inter-State trade."

20. Their Honours then went on to consider an argument that the motive, purpose or object of the legislative restriction on the production of margarine was to inhibit or interfere with the inter-state trade in margarine. After indicating that it was immaterial that the legislators advert to a particular consequence or desire it to occur, they remarked (at p.79):

"Nor can it matter whether the purpose or motive is inferred from circumstance or from the statute or, indeed, is stated therein in terms."

21. Their Honours then gave a number of examples of the defendant's argument, each example leading to consequences which were unacceptable. In dealing with each example their Honours made it clear that a legislative prohibition, restriction or burden on an activity preparatory to the commencement of inter-state trade, or on something to be used in that trade, with the purpose of interfering with that trade or preventing the thing from being used in that trade, would not contravene s.92. Their Honours said (at p.79):

"The defendant company's argument in the present case would, for example, appear to mean that there could be no effective prohibition of the importation of goods into Australia if they were merchandise intended to be bought and sold in inter-State trade. A customs tariff could not effectively be used to restrict importation if its purpose and operation were to prevent the dutiable goods going into inter-State trade. Indeed consistently with the argument, if it possessed any foundation, it is not easy to see how the Bank Notes Tax Act 1910, which taxed the bank notes issued by trading banks out of existence, could be justified. For it accomplished the purpose of forcing them out of circulation whether in inter-State or intra-State commerce."

22. In Bartter's Farms the validity of a statute which limited the number of hens which might be kept for the production of eggs was upheld, notwithstanding that the Court was prepared to assume its purpose may have been to reduce the inter-state trade in eggs - see pp.505, 509, 516. And in Ipec-Air the Court unanimously held that the Director-General's discretionary refusal to grant permission to import aircraft was not obnoxious to s.92, even though the refusal seems to have been actuated by the motive and purpose of excluding the applicant from engaging in inter-state air transportation with those aircraft. The reasoning to this conclusion was based on an acceptance of the principles in Grannall; the reasoning did not depend in any way on the special character of the Commonwealth's powers with respect to importation and customs duties.

23. These decisions from Grannall onwards are inconsistent with the defendant's contention that the prohibitions in s.6(1)(a) amount to a prohibition against inter-state communications by means of a circuitous device. So much was made clear by Kitto J. in Samuels v. Readers' Digest Association Pty. Ltd. (1969) 120 CLR 1, at p 30, where he pointed out that the Margarine Cases, though instances of manufacture, were not decided by reference to a consideration applying exclusively to manufacture. Those cases and the subsequent decisions which followed from them in a direct line of descent rested on the formal distinction between inter-state trade, commerce and intercourse and its essential attributes on the one hand, and on the other hand acts, transactions and activities which are antecedent, preparatory or collateral and affect that trade, commerce and intercourse as a matter only of economic or practical consequence.

24. The defendant sought to derive support from an observation in Antill Ranger &Co. Pty. Ltd. v. Commissioner for Motor Transport (1955) 93 CLR 83, another case which, it has been suggested, might be regarded as an instance of a circuitous device, though the judgments give no explicit support to the suggestion. There the plaintiff succeeded in his action to recover illegal road charges paid under protest, though the State statute barred the right to recover, the charges having been levied in contravention of s.92. Dixon C.J., McTiernan, Williams, Webb, Kitto and Taylor JJ. said with reference to s.92 (at p.101):

"In protecting the freedom of individuals to trade across State lines it invalidates any law purporting to confer any anterior authority to s him doing so."

25. Plainly enough their Honours were speaking of a pre-existing authority to stop a person from engaging in an act or transaction of inter-state trade, i.e., transporting goods inter-state by road. They were not speaking of an authority to stop a person from engaging in an activity that was anterior or preparatory to engaging in inter-state trade.

26. The question then is whether, assuming that the prohibition against use of a station or appliance in s.6(1)(a) is invalid because it contravenes s.92, can the remainder of the provision be severed? For substantially the same reasons as those advanced by the Chief Justice to support his conclusion that the provisions dealing with establishment and erection may be severed from those dealing with maintenance and use, I conclude that the remainder of s.6(1)(a) can be severed from the prohibition against use. Severance does not give the remaining provisions a different operation. And I am unable to detect any indication that the operation of each of the individual prohibitions in s.6(1)(a) was intended to be conditional on the operation of all the others. Indeed, it is not unlikely that Parliament intended to control each of the activities mentioned in the subsection to the extent that it had power to do so.

27. There was an alternative argument put by the defendant, based on the judgment of Murphy J. in Buck v. Bavone (1976) 135 CLR 110, at p 137, that there is to be implied in the Constitution a new set of freedoms which include a guarantee of freedom of communication. It is sufficient to say that I cannot find any basis for implying a new s.92A into the Constitution.

28. In the result I would answer the questions asked as follows:

(1) Yes, but only in so far as those sections relate to the use of the station or appliance.

(2) No.

MURPHY J.: The defendant was charged with two offences under s.6(1)(a) of the Wireless Telegraphy Act 1905 (Cth) ("the Act") which states that no unauthorized person shall "establish, erect, maintain, or use any station or appliance for the purpose of transmitting or receiving messages by means of wireless telegraphy ...". The two charges were concerned with the erection of a station and the maintenance of a station.

2. By s.4 of the Act the Minister has the exclusive privilege of establishing, erecting, maintaining and using stations for the purpose of transmitting and receiving messages. Section 5 gives the Minister an unfettered discretion in the granting of licences to operate transmitting stations. Section 7 states that appliances erected, maintained or used without authorization shall be forfeited to the Commonwealth.

3. The defendant, without obtaining a licence, erected, maintained and used a station at Somersby in New South Wales for the purpose of receiving and transmitting messages interstate by means of wireless telegraphy. This station was a link in a chain of the defendant's stations which transmitted messages between the defendant's stations in Sydney and Brisbane.

4. The case stated raises two questions:

(1) Does section 92 of the Constitution prevent the application of sections 4, 5, 6(1) and

7(1) of the Wireless Telegraphy Act 1905 or any of those sections to the actions of the defendant described in paragraphs 2 to 5 hereof?

(2) Does any implied constitutional guarantee prevent the application of sections 4, 5, 6(1) and 7(1) of the Wireless Telegraphy Act 1905 to the actions of the defendant described in paragraphs 2 to 5 hereof?

Seeking the opinion of the Court by a stated case presenting separate questions causes a difficulty. For example, a majority of justices may answer No to each question, yet a majority may be of opinion either s.92 or an implied guarantee prevents the application of the sections to the defendant. The problem of framing the questions so that there is no possibility of a distorted result was agitated in the preliminary proceedings in Uebergang v. Australian Wheat Board (1980) 145 CLR 266 (see Transcript of Proceedings 20 August 1979, pp 15, 21-23; 6 February 1980, pp.23-26).

5. An example of where the adoption of separate questions would have distorted the ultimate result is Queensland v. The Commonwealth (1977) 139 CLR 585 (The Second Territory Senators Case). There, a majority was in favour of the view that if a previous decision was wrong it should not be followed and a different majority was in favour of the view that the previous decision was wrong. Had these questions been asked separately, and the logical result of those answers been treated as decisive, the previous decision would have been overturned even though a majority of the Court was in favour of adhering to the previous decision.

6. A civil or criminal appeal also provides a useful illustration of this point. If an appeal is made on two or more grounds, ordinarily the reasons of each justice are for or against allowance or dismissal of the appeal. If each ground of appeal was decided as a separate question, the appellant may not have a majority on either ground but a majority of the Court, for disparate reasons, may consider that the appeal should be allowed. As I understand it, the practice has been to refuse to poll the Court on separate issues. The Court bases its order on the whole of the issues. Here the real question is whether the defendant is entitled to protection either under s.92 or under an implied guarantee.

(1) S.92 of the Constitution

7. The interstate transmission of television messages between the defendant's stations comes within the phrase "trade, commerce, and intercourse among the States" contained in s.92. Equally clearly, the Act imposes no tax or other fiscal burden discriminating between the States. Section 92 is, therefore, not applicable for the reasons I gave in Buck v. Bavone (1976) 135 CLR 110 and a number of later cases. (See H.C. Sleigh Ltd v. South Australia (1977) 136 CLR 475; Finemores Transport Pty Ltd v. New South Wales (1978) 139 CLR 338; Boyd v. Carah Coaches Pty Ltd (1979) 145 CLR 78 and Uebergang's Case).

(2) Implied Constitutional Guarantee

8. The Australian Constitution must be interpreted against a background of responsible government and democratic principles generally. Implications should be made which would promote such principles rather than those of arbitrary government and tyranny. In The Commonwealth v. Kreglinger &Fernau Ltd (1926) 37 CLR 393, this point is made by Justice Isaacs:

"Constitutions made, not for a single occasion, but for the continued life and progress of the community may and, indeed, must be affected in their general meaning and effect by what Lord Watson in Cooper v. Stuart calls 'the silent operation of constitutional principles.' 'Responsible government,' ... is part of the fabric on which the written words of the Constitution are superimposed." (p.413)

9. In Australian Communist Party v. The Commonwealth (1951) 83 CLR 1, Justice Dixon said:

"...it is government under the Constitution and that is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption." (p.193)

10. Other "traditional conceptions ... simply assumed" include, in my view, a prohibition on slavery or serfdom (Reg. v. Director-General of Social Welfare (Vict.); Ex parte Henry (1975) 133 CLR 369, 388), a prohibition on the infliction of cruel and unusual punishments (Sillery v. The Queen (1981) 55 ALJR 509, 513; 35 ALR 227, 233-234) and a prohibition upon persons being tried and declared guilty of criminal offences by non-judicial bodies (Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25, 109).

11. The Constitution also contains implied guarantees of freedom of speech and other communications and freedom of movement not only between the States and the States and the territories but in and between every part of the Commonwealth. Such freedoms are fundamental to a democratic society. They are necessary for the proper operation of the system of representative government at the federal level. They are also necessary for the proper operation of the Constitutions of the States (which derive their authority from Chapter V of the Constitution). They are a necessary corollary of the concept of the Commonwealth of Australia. The implication is not merely for the protection of individual freedom; it also serves a fundamental societal or public interest. I have referred to this implied guarantee in a number of cases (Buck v. Bavone; Ansett Transport Industries (Operations) Pty Ltd v. The Commonwealth (1977) 139 CLR 54 and McGraw-Hinds (Aust.) Pty Ltd v. Smith (1979) 144 CLR 633).

12. Many countries have explicitly stated these freedoms in their constitutional Bills of Rights (see Antieau, Adjudicating Constitutional Issues (1985), p.167). In others this constitutional value has been recognized by many courts and judges (see Antieau, pp.174-177).

13. In the United States its Supreme Court has often recognized implications regarding freedom of movement or communication (see Crandall v. State of Nevada (1867) 6 Wall 35, 44; Slaughter-House Cases (1872) 16 Wall 36, 79; Twining v. New Jersey (1908) 211 US 78, 97; Edwards v. California (1941) 314 US 160, 178; Shapiro, Commissioner of Welfare of Connecticut v. Thompson (1969) 394 US 618, 629-631 and Zobel v. Williams, Commissioner of Revenue of Alaska (1982) 457 US 55, 66-67). In United States v. Guest (1966) 383 US 745, 757-758, the Supreme Court said: "The constitutional right to travel from one State to another ... occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized. ...that right finds no explicit mention in the Constitution. The reason, it has been suggested, is that a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created." (My emphasis.)

14. In Australia, references to such implied freedoms are to be found in R. v. Smithers; Ex parte Benson (1912) 16 CLR 99. The Court held invalid s.3 of the Influx of Criminals Prevention Act 1903 (NSW) which prevented convicted criminals from entering New South Wales within three years following the termination of a period of imprisonment of a year or longer for a crime committed in another State. Chief Justice Griffith and Justice Barton based their decisions on implications drawn from the creation of the Commonwealth. Justice Barton stated "... the creation of a federal union with one government and one legislature in respect of national affairs assures to every free citizen the right of access to the institutions, and of due participation in the activities of the nation" (pp.109-110). Justices Isaacs and Higgins based their decision on an infringement of s.92 of the Constitution but both Chief Justice Griffith and Justice Barton expressly disclaimed any reliance on that section.

15. In the context of freedom of movement into and out of the A.C.T., Chief Justice Dixon asserted in Pioneer Express Pty Ltd v. Hotchkiss (1958) 101 CLR 536 that:

"No one would wish to deny that the constitutional place of the Capital Territory in the federal system of government and the provision in the Constitution relating to it necessarily imply the most complete immunity from State interference with all that is involved in its existence as the centre of national government, and certainly that means an absence of State legislative power to forbid restrain or impede access to it." (p.550)

In that case, references were made to the wide implications drawn in Crandall v. Nevada.

16. In relation to the drawing of implications generally, Justice Dixon in Australian National Airways Pty Ltd v. The Commonwealth (1945) 71 CLR 29 said:

"We should avoid pedantic and narrow constructions in dealing with an instrument of government and I do not see why we should be fearful about making implications." (p.85)

Older cases recognized implications in the nature of guarantees or prohibitions (for example, the reserved powers of the States) some of which have been overturned.

17. Recent cases have recognized implications in the absence of any explicit mention in the Constitution (see Victoria v. The Commonwealth (1975) 134 CLR 338; New South Wales v. The Commonwealth (1975) 135 CLR 337 and The Commonwealth v. Tasmania (1983) 57 ALJR 450; 46 ALR 625). Western Australia v. The Commonwealth (1975) 134 CLR 201 (The First Territory Senators Case) is an illustration of conflicting implications in which that favouring democracy prevailed over that of federalism.

18. The implied freedom of communication is not absolute but is subject to necessary regulation. The question arises whether the statutory scheme under the Act conforms to the concept of necessary regulation.

19. The parties accepted that if there were an implied guarantee of freedom of communication, the test of whether particular regulation was compatible with that freedom should be judged by tests analogous to those of reasonable regulation presently applied to s.92.

20. The number of airwave frequencies, despite constant increases with advances in technology, is a limited resource which must be rationed in an orderly way. In the United States, licensing schemes to regulate radio communication do not necessarily violate the First Amendment guarantee of free speech. (See National Broadcasting Co. v. United States (1943) 319 US 190, 226-227.)

21. The defendant readily and rightly conceded that there is a need to regulate in this area but contended that the legislative scheme was unreasonable in that the Act establishes a monopoly over communication facilities with an unfettered discretion in the granting of licences residing in the Minister.

22. The informant (and the Commonwealth) contended otherwise. First, that the very nature of communications systems justified such a system. Paragraphs 9 and 10 of the case set out the need for a controlled and ordered system and the dangers inherent in allowing complete freedom. However, it is one thing to say that regulation is needed; it is another to say that an unfettered discretion to issue or decline to issue licences is the only, or only reasonable, way to achieve it. The provisions of the Radiocommunications Act 1983 (Cth), which replaced the Act, show that it is possible to regulate in other, more appropriate, ways.

23. Second, it was submitted that the question of validity should not be determined by the possible legislative reach of the Act but rather by reference to the way it has been administered. There were, in fact, almost 500,000 licences on issue as at 31 December 1983 and the present defendant held 109. There has been no suggestion that the issue of licences has been made on an arbitrary or capricious basis. Nonetheless, the potential reach of the Act is such that there is nothing to stop the Minister from taking into account any consideration in the decision as to whether or not to grant a licence. For example, authorization could be refused simply because it may affect the commercial viability of another licenceholder in this area. Such a decision would not be consistent with the implied freedom of communication.

24. A related argument in favour of validity was that the Minister's decision could be reviewed under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Once again, this approach looks at the Act in operation rather than its potential reach. In relation to validity under s.92 it has been said by this Court that "administrative practice is not the measure of the legal operation of the regulations and it is with the latter alone that we are concerned" (Collier Garland Ltd v. Hotchkiss (1957) 97 CLR 475, 486). A similar approach should be adopted when considering whether a statute infringes an implied freedom.

25. The defendant is entitled to the protection of the implied freedom. The Act does not incorporate the features of necessary regulation consistent with this implied freedom. It would not affect my view if the defendant's operation were wholly intrastate.

26. Returning to the stated case, if the question were in the form "Does s.92 or any implied constitutional guarantee prevent the application of the sections of the Act to the actions of the defendant?", I would answer yes. Because I consider that the questions should not be answered separately, I would answer:

(1) Not answered

(2) Yes.

WILSON J.: The principal question raised for decision by this stated case is whether s.92 of the Constitution prevents the application of ss.4, 5, 6(1) and 7(1) of the Wireless Telegraphy Act 1905 (Cth) as amended ("the Act"), or any of those sections, to the actions of the defendant described in the case.

2. The material facts may be stated briefly. They are taken from pars 1 to 6 of the case. Between 11 December 1981 and 30 May 1983 the defendant, upon land occupied by it at Somersby in New South Wales, erected, maintained and used a station ("the station") for the purpose of receiving and transmitting messages by means of wireless telegraphy. It did so without the authority of a licence granted in accordance with s.5 of the Act. At all relevant times the station was erected and maintained by the defendant for the purpose of serving as a link in a chain of links for the transmission of messages by means of wireless telegraphy between TCN Channel Nine in Sydney in New South Wales and QTQ Channel Nine in Brisbane in Queensland.

3. The usual means for transmitting television messages between Sydney and Brisbane were the links, known as Telecom bearers, provided by the Australian Telecommunications Commission. In the period during which the defendant used the station it also made use of the Telecom bearers, but they were not always available.

4. Technological considerations touching the transmission and reception of messages from the station are summarized in the case as follows:

"7. Transmission and reception of the said messages from the station involved the utilization of the radio frequency spectrum. The radio frequency spectrum comprises a continuous range of electromagnetic radiations which vary from the longest waves, just above the frequency of human hearing, to decimillimetric waves oscillating thousands of millions of times per second. Radio waves are labelled according to their frequency measured in hertz (Hz). They range from very low frequencies (VLF), to low frequencies (LF), medium frequencies (MF), high frequencies (HF), very high frequencies (VHF), ultra-high frequencies (UHF), super high frequencies (SHF) and extremely high frequencies (EHF). Modern technology allows transmission, reception and separation of thousands of radio services operating simultaneously in the spectrum. The links used by the defendant operated in the SHF band of frequencies.

8. Radio transmitters can be made to emit waves of a particular frequency and a radio receiver can be tuned to select waves of that frequency.

9. The radio frequency spectrum is a limited natural resource of fundamental importance to communications. It is limited by several major factors such as the total of useable frequencies, the different propagation characteristics of bands of frequencies and the technology employed in using it. Many types of communication can be economically and effectively conducted only on particular frequency bands. The spectrum must therefore be segmented to allow space in the various bands appropriate to the particular type of use. Some bands are useful for many uses and the different types of services then need to be carefully separated. Spectrum use has increased as improved technology has become available, allowing a narrower band of frequencies to be used for different services.

10. Without effective radio frequency management, radio communications, including radio navigation, satellite communications, radar, television and radio broadcasting would be ineffective. These services would interfere with each other and there would be interference between services in the same category. Without a controlled and ordered system based on complex engineering practices, the widespread use of the spectrum would be impossible. The effects would range from inconvenience to financial loss and even loss of life."

5. The material provisions of the Act are as follows:

"2. (1) In this Act -

...

'Wireless telegraphy' includes all systems of transmitting and receiving telegraphic or telephonic messages by means of electricity without a continuous metallic connexion between the transmitter and the receiver.

...

4. The Minister shall have the exclusive privilege of establishing, erecting, maintaining, and using stations and appliances for the purpose of -

(a) transmitting messages by wireless telegraphy within Australia, and receiving messages so transmitted ...

5. Licences to establish, erect, maintain, or use stations and appliances for the purpose of transmitting or receiving messages by means of wireless telegraphy may be granted by the Minister for such terms and on such conditions and on payment of such fees as are prescribed.

6. (1) 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: One thousand dollars, or imprisonment for Five years.

...

7. (1) All appliances erected, maintained, or used in contravention of this Act or the regulations, for the purpose of transmitting or receiving messages by means of wireless telegraphy, shall be forfeited to the Commonwealth".

6. The case outlines administrative procedures relating to the issue of licences under the Act. The policy was that, subject to Ministerial direction, an applicant for a radiocommunications service would be licensed, subject to appropriate technical and operating conditions, except where frequencies are not available or there is a potential detriment to the radio frequency spectrum or there is a potential detriment to the public interest in the sense that public safety is prejudiced or manifestly unlawful activities are facilitated. As at 31 December 1983 some 481,700 licences were on issue of which some 137,000 were held in New South Wales. The defendant held about 109 licences.

7. In June 1983 the defendant was prosecuted for two alleged breaches of s.6(1)(a) of the Act, one for erecting and the other for maintaining the station, in each case without authorization and for the purpose of transmitting or receiving messages by means of wireless telegraphy. After evidence was taken in April 1984 the proceedings were removed into this Court on an application made in accordance with s.40(1) of the Judiciary Act 1903 (Cth), as amended.

8. It is to be noted that the issues requiring determination in the case are now of limited significance. The Act was repealed on 27 August 1985, being replaced by the more elaborate provisions of the Radiocommunications Act 1983 (Cth), as amended.

9. The central submission advanced for the defendant by Mr Hughes may be shortly stated. It is that s.6(1)(a) selects as the criterion of its operation the formation by a person of a purpose to engage in trade, commerce or intercourse. The paragraph prohibits, save as authorized by or under the Act, the establishment, erection, maintenance or use of any station or appliance for the purpose of transmitting or receiving messages by means of wireless telegraphy. It is common ground that the transmission or reception of messages between Sydney and Brisbane by means of wireless telegraphy itself constitutes trade, commerce or intercourse between the States. The first limb of Mr Hughes' submission then is that the establishment, erection, maintenance and use of the station for the purpose of engaging in that trade, commerce or intercourse forms

"... an essential attribute of that conception, essential in the sense that without it you cannot bring into being that particular example of trade commerce or intercourse among the States ...".

(per Dixon C.J. in Hospital Provident Fund Pty. Ltd. v. State of Victoria (1953) 87 CLR 1, at p 17). Mr Hughes acknowledged that later decisions of this Court reflected a more expansive view of the phrase "trade, commerce, and intercourse among the States" in s.92 (North Eastern Dairy Co. Ltd. v. Dairy Industry Authority of N.S.W. (1975) 134 CLR 559; Australian Coarse Grains Pool Pty. Ltd. v. Barley Marketing Board (No. 2) (1985) 59 ALJR 516; 59 ALR 641) but found the narrower formulation postulated by Dixon C.J. in Hospital Provident to be a convenient and accurate description of the present case. The second limb of the argument is that to prohibit the establishment, erection, maintenance or use of the station for the stated purpose, save under the authority of a licence which may be granted or refused by the Minister in his absolute discretion, is to create a burden which s.92 will not permit.

10. Issue was joined on both limbs of Mr Hughes' submission by the informant, supported by the intervening Attorneys-General for the Commonwealth and New South Wales. In relation to the first limb, it was argued that neither the erection nor the maintenance of the station enjoyed the protection of s.92 because in each case the activity was anterior or antecedent to the interstate trade, commerce or intercourse. Reliance was placed on earlier decisions of this Court relating to the manufacture, production and importation of goods intended for interstate trade: see Grannall v. Marrickville Margarine Pty. Ltd. (1955) 93 CLR 55; Beal v. Marrickville Margarine Pty. Ltd. (1966) 114 CLR 283; Damjanovic &Sons Pty. Ltd. v. The Commonwealth (1968) 117 CLR 390; Bartter's Farms Pty. Ltd. v. Todd (1978) 139 CLR 499; Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd. (1965) 113 CLR 177; Ansett Transport Industries (Operations) Pty. Ltd. v. The Commonwealth (1977) 139 CLR 54.

11. With respect to the second limb of the defendant's argument, the learned Solicitor-General for the Commonwealth, supported by counsel for the informant and the learned Solicitor-General for New South Wales, advanced a number of disparate arguments in support of a submission that the licensing system prescribed by the Act is compatible with the freedom guaranteed by s.92.

12. The first limb of the argument is capable of raising substantial questions touching the operation of s.92. However, I do not find it necessary to enter upon a consideration of those questions because, in my view, the proper construction of s.6(1)(a) of the Act serves to distinguish the cases relied upon by the informant and the interveners and to determine the matter in favour of the defendant. I say that because of the emphasis that s.6(1) expressly places upon the stated purpose. This is a feature which distinguishes the law under consideration in this case from the legislation which formed the subject of Grannall's Case and the cases which followed in its train. Paragraph (b) of the subsection forbids the transmission or reception, without authority, of messages by wireless telegraphy while par.(a) provides that without authority no person shall establish, erect, maintain, or use any station or appliance for that purpose. The subsection is concerned solely with the stated purpose, namely, the actual trade, commerce or intercourse encompassed in the transmission and reception of messages. While par.(b) is addressed expressly to that subject, par.(a) deals comprehensively with the means by which the activity is carried on. Those means range from the establishment and erection of the facility to its maintenance and use for the central purpose. The emphasis upon that central purpose has the effect of binding into a unity the activities that are described by the verbs contained in par.(a). They are the means by which the trade, commerce or intercourse is actually carried on, that is to say by which the purpose is achieved. It follows, in my opinion, that they are inseverable from each other. The result is that if any one of those activities attracts the freedom of which s.92 speaks, then that freedom extends to each of the other activities. To ban, save under licence, the use of a station for the purpose of engaging in interstate trade, commerce or intercourse would clearly offend s.92 unless the impediment was no more than regulatory in nature and compatible with the freedom envisaged by the Constitution. It would attribute a capricious intention to the Parliament to construe the paragraph as inoperative in its purported application to the use of a station for the purpose of engaging in interstate trade, commerce or intercourse but fully operative in its application to the establishment, erection or maintenance of the facility for that same purpose. In such a case, s.15A of the Acts Interpretation Act 1901 (Cth), as amended, could not avail the informant. The manner in which that section operates is fully discussed in Strickland v. Rocla Concrete Pipes Ltd. (1971) 124 CLR 468, at pp 492-493, 502-506, 513, 515-520, 526-528. The intention of the legislature, determined in the light of its provisions read as including s.15A, is to prevail.

13. This construction of s.6(1)(a) gains support from the fact that the legislative power of the Parliament to enact the Act is derived from s.51(v) of the Constitution. It is a power to make laws with respect to services, namely postal, telegraphic, telephonic, and other like services. If the use of a facility for the purpose of providing a service is not controlled by the legislature, then it is difficult to find a sufficient nexus to the power to sustain a prohibition on the establishment, erection or maintenance of a station, as distinct from its use, for the provision of a service.

14. I would therefore sustain the first limb of Mr Hughes' argument and turn to a consideration of the submissions of the Solicitor-General for the Commonwealth directed to showing that the licensing system imposed by the Act was no more than regulatory. First, it was said that in construing s.92 regard should be had to the special place that systems of communication held, and still hold, in the international arena. This fact coupled with the monopoly in the field of posts and telegraphs exercised by colonial governments prior to their federation, was said to lead to the conclusion that the continuation of such a monopoly, and its extension to the field of wireless telegraphy, was compatible with s.92. Reference was made in this regard to a passing comment on these aspects of community life by the Judicial Committee of the Privy Council in James v. The Commonwealth (1936) 55 CLR 1, at pp 54-55; (1936) AC 578, at pp 625-626. It is a sufficient answer to this submission to say that the Act does not purport to confer a monopoly on the Commonwealth in the field of wireless telegraphy and there is no warrant for fashioning a novel doctrine of s.92 confined in its application to this narrow field. If it were to be made the subject of a government monopoly then the compatibility of that regime with s.92 would no doubt fall to be determined by reference to the guidance contained in this Court's decision in Uebergang v. Australian Wheat Board (1980) 145 CLR 266 and due regard would be given to any international considerations.

15. Second, it was observed that the airwaves constitute a limited resource such that not all who wish to use them can do so without preventing or hindering their use by others. The submission was that therefore it was compatible with s.92 to preserve the freedom of some users by rationing airwave frequencies even if it meant the exclusion of some users entirely. So much may be conceded but the submission stops short of justifying the vesting in the Minister of an arbitrary power to grant or withhold a licence as the only reasonably practicable method of controlling that limited resource. Indeed, as I have already noted, the case outlines administrative procedures that are followed in practice by the Minister when determining whether or not to grant a licence. The existence of these procedures demonstrates that it would not have been impracticable to include in the Act a set of criteria to control the exercise of the Minister's discretion to grant a licence. Those criteria would embrace technical and operating considerations including the availability of appropriate frequencies and the existence or otherwise of a potential detriment to the radio frequency spectrum or to the public interest in terms of public safety or the facilitation of manifestly unlawful activities.

16. Third, the Solicitor-General relied on the manner in which the licensing system was administered coupled with the availability of judicial review to a disappointed applicant for a licence (cf. the Administrative Decisions (Judicial Review) Act 1977 (Cth), as amended) as supporting a conclusion that the system was compatible with s.92. But as Gibbs C.J. has said in Ackroyd v. McKechnie (1986) 60 ALJR 551, at p 554; 66 ALR 287, at p 292:

"In considering the validity of a statute which is said to infringe s.92, the Court must consider the law according to its own terms, and the fact that the actual administration of the law may not be inconsistent with s.92 is immaterial:

'... administrative practice is not the measure of the legal operation of the regulations and it is with the latter alone that we are concerned': Collier Garland Ltd. v. Hotchkiss (1957) 97 CLR 475, at p 486, and see also at pp 483, 488".

17. Finally it was argued by the Solicitor-General that in all the circumstances, the question being one of fact and degree, the licensing scheme embodied in the Act and Regulations constituted reasonable regulation compatible with s.92. This point was also addressed in Ackroyd v. McKechnie, where the Chief Justice said, at p 553 of ALJR; p 290 of ALR:

"... since the decisions in Hughes and Vale Pty. Ltd. v. The State of New South Wales (1954) 93 CLR 1 and Hughes and Vale Pty. Ltd. v. The State of New South Wales (No. 2) (1955) 93 CLR 127 it has been settled that a statutory provision which restricts or burdens trade unless a licence or permit is granted, and which gives the licensing or permitting authority an uncontrolled discretion to refuse to grant the licence or permit, cannot validly apply to interstate trade: see also Boyd v. Carah Coaches Pty. Ltd. (1979) 145 CLR 78, at p 84".

Furthermore, there can be no question of necessity, as witness the fact that administrative procedures have been devised, and are therefore shown to have been practicable, whereby the unlimited discretion conferred by the Act on the Minister is deprived of its arbitrary character. Had those criteria been incorporated in the Act, the system may well have survived an attack under s.92.

18. In the result, the defendant has shown that it is entitled to the protection of s.92. It was also argued for the defendant that a constitutional right to freedom of communication was to be implied from the Constitution and that this implied right furnishes it with a defence to the informations laid against it. In the light of the conclusion to which I have come with regard to s.92, it is unnecessary to answer the question in the case that is related to this submission. Nevertheless I may say that I agree with what Dawson J. has written in this regard.

19. The stated case raises for the opinion of the Court the following questions of law:

(1) Does section 92 of the Constitution prevent the application of sections 4, 5, 6(1) and 7(1) of the Wireless Telegraphy Act 1905 or any of those sections to the actions of the defendant described in paragraphs 2 to 5 hereof?

(2) Does any implied constitutional guarantee prevent the application of sections 4, 5, 6(1) and 7(1) of the Wireless Telegraphy Act 1905 to the actions of the defendant described in paragraphs 2 to 5 hereof?

I would answer the questions as follows:

(1) Yes.

(2) Unnecessary to answer.

BRENNAN J.: There is a chain of receiving and transmitting stations between TCN Channel Nine at Sydney and QTQ Channel Nine at Brisbane which transmit television messages by wireless telegraphy between those two points. One of the stations is at Somersby in New South Wales. It was erected, maintained and used by the defendant for the purpose of transmitting and receiving television messages by means of wireless telegraphy, and it was so erected, maintained and used without authorization under the Wireless Telegraphy Act 1905 (Cth) ("the Act").

2. On 21 June 1983 the informant laid two informations against the defendant for hearing before the St James Court of Petty Sessions in Sydney. The first information charged the defendant with erecting the Somersby station without authorization for the purpose of transmitting or receiving messages by means of wireless telegraphy. The second information charged the defendant with maintaining the station without authorization for the same purpose. The proceedings were removed into this Court and a case was stated by the Chief Justice raising for the opinion of the Full Court two questions of law as to the application of ss.4, 5, 6(1) and 7(1) of the Act to the defendant's actions in erecting, maintaining and using the station.

3. Section 4(a) of the Act confers on the Minister "the exclusive privilege of establishing, erecting, maintaining, and using stations and appliances for the purpose (inter alia) of transmitting messages by wireless telegraphy within Australia, and receiving messages so transmitted". Section 5 empowers the Minister to grant licences to establish, erect, maintain, or use stations and appliances for the purpose of transmitting or receiving messages by means of wireless telegraphy for such terms and on such conditions and on payment of such fees as are prescribed. Section 6(1) provides -

" 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: One thousand dollars, or imprisonment for Five years."

Section 7(1) provides -

" All appliances erected, maintained, or used in contravention of this Act or the regulations, for the purpose of transmitting or receiving messages by means of wireless telegraphy, shall be forfeited to the Commonwealth."

The application of s.7(1) to the defendant's appliances depends on whether the defendant by the actions charged in the informations contravened the provisions of s.6(1). The informations charge the defendant only with erecting and maintaining the station, but the case states that the defendant without authorization erected, maintained and also used the station for the purpose prescribed by s.6(1)(a) of the Act.

4. It is not hard to divine the reason why no information was laid charging the defendant with using the station for the prescribed purpose without authorization. The Solicitor-General for the Commonwealth, appearing for the Attorney-General who intervened in the proceedings, conceded that the transmission of messages by means of wireless telegraphy between Sydney and Brisbane was an activity of interstate trade, commerce or intercourse, but submitted that, even if such transmission of messages and the use of a station for that purpose fell within the protection of s.92 of the Constitution, the erection and maintenance of the station were activities antecedent to and not part of interstate trade, commerce or intercourse - "something which precedes it and is outside the freedom conferred", to use the familiar phrase from the majority judgment in Grannall v. Marrickville Margarine Pty.Ltd. (1955) 93 CLR 55, at p 72. The principle by reference to which manufacturing was held in Grannall and in subsequent cases to be an activity antecedent to interstate trade, commerce and intercourse and outside the protection of s.92 was stated by Kitto J. in Samuels v. Readers' Digest Association Pty.Ltd. (1969) 120 CLR 1, at p 30:

" The ratio decidendi had to do, not with anything peculiar to manufacture, but with the distinction between laws which impose by their own force restrictions or burdens upon the very things which s.92 protects, namely inter-State trade, commerce and intercourse themselves, and laws which impose restrictions or burdens upon things antecedent or preparatory or collateral to inter-State trade, commerce or intercourse and affect such trade, commerce and intercourse as a matter only of economic or practical consequence."

5. To counter this argument, counsel for the defendant sought to distinguish the cases relating to prohibitions on the manufacture and importation of goods intended for interstate trade. Manufacture and importation of goods were said to be exceptions to a general principle that s.92 protects antecedent activities which are inseparably connected with an interstate trading activity. Counsel sought to found the argument on the judgment of Dixon C.J. in Hospital Provident Fund Pty.Ltd. v. State of Victoria (1953) 87 CLR 1, at pp 17-18:

12. There remains for consideration the question whether "any implied constitutional guarantee" prevents the application of the relevant sections of the Act to the actions of the defendant in erecting and maintaining the Somersby station. I do not find it necessary to examine in this judgment the general concept of the implication of constitutional guarantees of fundamental freedoms which has been considered and developed by Murphy J. in a series of judgments commencing with Buck v. Bavone (1976) 135 CLR 110, at p 137. The reason for this is that I do not consider that any such implied constitutional guarantee would relevantly extend beyond the wide operation which current authority gives to s.92 of the Constitution and which I have accepted for the purposes of the present case.

13. I would answer the questions asked in the stated case as follows:

(1) In so far as those provisions of the Wireless Telegraphy Act 1905 (Cth) relate to the erection or maintenance of a station or appliance, No. Otherwise, unnecessary to answer.

(2) No.

DAWSON J.: The Wireless Telegraphy Act 1905 (Cth), which has now been repealed, provided by s.6(1) that, except as authorized under the Act, no person should:

"(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."

The defendant, TCN Channel Nine Pty. Ltd., was prosecuted in a Court of Petty Sessions in New South Wales under s.6(1)(a) upon two separate informations; one for erecting, without authorization, a station for the purpose of transmitting or receiving messages by means of wireless telegraphy and the other for maintaining, without authorization, a station for the same purpose. The proceedings were removed into this Court under s.40(1) of the Judiciary Act 1903 (Cth). Upon a case stated by the Chief Justice, the following questions are raised for the opinion of the Court:

(1) Does section 92 of the Constitution prevent the application of sections 4, 5, 6(1) and

7(1) of the Wireless Telegraphy Act 1905 or any of those sections to the actions of the defendant described in paragraphs 2 to 5 hereof?

(2) Does any implied constitutional guarantee prevent the application of sections 4, 5, 6(1) and 7(1) of the Wireless Telegraphy Act 1905 to the actions of the defendant described in paragraphs 2 to 5 hereof?

2. The case states that at Somersby in New South Wales the defendant, without a licence, established, erected, maintained and used a station the purpose of which was the receiving and transmitting of messages by means of wireless telegraphy as defined in the Wireless Telegraphy Act. The station was used as a link in a chain of links for the transmission of television messages between TCN Channel Nine at Sydney in the State of New South Wales and QTQ Channel Nine at Brisbane in the State of Queensland.

3. The usual method for the transmission of television messages between Sydney and Brisbane was by means of links, known as bearers, provided by the Australian Telecommunications Commission (Telecom). The defendant used the Telecom bearers but they were not always available. The defendant used its station to transmit television messages for itself and others who could not obtain access to the Telecom links. There is no contest that the transmission of messages by the use of the defendant's station formed part of interstate trade, commerce or intercourse.

4. Section 4 of the Wireless Telegraphy Act purported to confer upon the Minister the exclusive privilege of establishing, erecting, maintaining, and using stations and appliances for the purpose of transmitting and receiving messages by means of wireless telegraphy within Australia. Section 5 provided that licences to establish, erect, maintain, or use stations and appliances for the purpose of transmitting or receiving messages by means of wireless telegraphy might be granted by the Minister for such terms and on such conditions and on payment of such fees as are prescribed. Section 7 provided that all appliances erected, maintained, or used in contravention of the Act or regulations for the purpose of transmitting or receiving by means of wireless telegraphy should be forfeited to the Commonwealth. I should add that the Radiocommunications Act 1983 (Cth), which has replaced the Wireless Telegraphy Act, provides for a significantly different licensing system, so that the matters removed into this Court are of limited importance.

5. Although the defendant was not charged with using its station without authority, it is appropriate to consider first of all the validity of the statutory prohibition against unauthorized use. In the context of s.92, that is obviously the prohibition most susceptible to attack and, if invalid and not severable, would bring down the whole of s.6(1)(a).

6. Putting to one side for the moment certain submissions made on behalf of the Commonwealth, to which I shall refer later, the prohibition against the use of a station to transmit or receive messages by means of wireless telegraphy would, in the absence of the power to grant licences, have amounted to a contravention of s.92. It was a prohibition against intrastate and interstate use alike, but it was not contended that it could be read down so as to apply only to intrastate use. The first question is, therefore, whether the licensing system established by the relevant provisions of the Wireless Telegraphy Act constituted a sufficient qualification of the prohibition to render the relevant provision compatible with the freedom guaranteed by s.92. That would only have been so if the system amounted to no more than reasonable regulation in all the circumstances of the trade, commerce or intercourse involved. There is no need in this case to examine what might amount to reasonable regulation because, whatever the answer to that question, it is clearly established that a prohibition, subject only to an unfettered executive discretion to issue or refuse a licence, goes beyond regulation which may be permissible having regard to the guarantee afforded by s.92. See Hughes and Vale Pty. Ltd. v. The State of New South Wales (1954) 93 CLR 1, at pp 26-27; Hughes and Vale Pty. Ltd. v. The State of New South Wales (No.2) (1955) 93 CLR 127, at pp 162-163; Boyd v. Carah Coaches Pty. Ltd. (1979) 145 CLR 78, at pp 84-85; Ackroyd v. McKechnie (1986) 60 ALJR 551; 66 ALR 287.

7. Under s.5 of the Wireless Telegraphy Act the discretion conferred upon the Minister to issue or refuse a licence was clearly uncontrolled; the prohibition against the unauthorized use of a station which was imposed by s.6(1) must therefore have amounted to interference with the freedom of the trade, commerce or intercourse involved in its use. Nor can it be contended that the licensing provision, as it was administered, amounted to no more than reasonable regulation, for a legislative provision which is wide enough to embrace conduct which infringes s.92 cannot be saved by establishing that it is in fact administered in accordance with the requirements of s.92. Both in Collier Garland Ltd. v. Hotchkiss (1957) 97 CLR 475, at p 486 and in Ackroyd v. McKechnie at p 554; p 292 of ALR it was pointed out that it is the legal operation of the relevant provision with which the Court is concerned and not administrative practice. For the same reason, the availability of judicial review of administrative decisions of the sort now provided for by the Administrative Decisions (Judicial Review) Act 1977 (Cth) has no relevance: it is the licensing provision which establishes the width of the discretion whatever avenues might exist for the review of decisions made in the exercise of that discretion.

8. The Commonwealth, which intervened to support the legislation, sought to justify the mode of regulation by a submission that s.92 does not operate to disturb governmental monopolization of a system of communication. It pointed to the recognition given by the Privy Council in James v. The Commonwealth (1936) 55 CLR 1, at p 54; (1936) AC 578, at p 626, to the state monopoly over postal services and the observation that the limitation upon private activities in that area is "... a limitation notoriously existing in ordinary usage in all modern civilized communities; it does not impede freedom of correspondence, but merely as it were, canalizes its course just as 'free speech' is limited by well known rules of law. Very much the same is true of the Wireless Telegraph Act 1905". Their Lordships in making these comments were, of course, dealing with the argument that certain federal statutes had been enacted on the assumption that s.92 did not bind the Commonwealth, but it is difficult to read the reference to the Wireless Telegraphy Act as a reference to a state monopoly because the Act upon its face, notwithstanding the declaration of exclusive ministerial privilege contained in s.4, plainly did not provide for a monopoly: it provided for the establishment, erection, maintenance and use under licence of stations and appliances for the purpose of transmitting or receiving messages by means of wireless telegraphy. And the case stated reveals that thousands of licences were issued authorizing the use of the radio frequency spectrum by means of wireless telegraphy. This case does not, therefore, raise the question which has been agitated in recent cases whether a state monopoly of some aspect of trade or commerce might be compatible with the absolute freedom guaranteed by s.92 if it is "... the only practical and reasonable manner of regulation ...": see The Commonwealth v. Bank of N.S.W. (1949) 79 CLR 497, at p 641; (1950) AC 235, at p 311. See also Clark King &Co. Pty. Ltd. v. Australian Wheat Board (1978) 140 CLR 120; Uebergang v. Australian Wheat Board (1980) 145 CLR 266. The regulation for which the Wireless Telegraphy Act provided was not regulation by means of monopoly; it was regulation by means of a licensing system. To avoid infringement of s.92 such a system must be reasonable in the relevant sense. This involves recognition of the need for an ordered society so that the freedom guaranteed by s.92 might be enjoyed by those to whom its protection extends. A system which confers an arbitrary discretion upon the Minister to grant or refuse a licence without regard to any consideration which might be measured against this requirement does not, as I have already pointed out, comply with s.92.

9. A cognate submission made by the Commonwealth was that the airwaves constitute a limited resource such that not all who wish to use them can do so without preventing or hindering use by others. It was said that it was compatible with s.92 to preserve the freedom of some users by rationing airwave frequencies and excluding others entirely. The answer to this submission must be the same as that just given. The argument might have force if it could be shown that the system of licensing established by the Wireless Telegraphy Act required the Minister to consider restricting the availability of a scarce resource to certain persons for the greater good of the whole community. But the absolute discretion given to the Minister shows that he was not required to be motivated by any such consideration. Some distinction may have to be drawn between cases involving the rationing of a scarce resource by means of a system of licences and cases involving regulation by means of a licensing system for some other purpose, such as the orderly conduct of business. It may be true to say that in cases where rationing is a reasonable mode of regulation, there will be no necessary infringement of s.92 if an application for a licence may be refused upon grounds having nothing to do with the character of the applicant or his activities. By way of contrast, in other cases, such as the transport cases, regulation by means of a licensing system will only be reasonable if the conditions laid down for the issue of licences are reasonable and an applicant for a licence is entitled to it if he meets those conditions. Where rationing is reasonable because of the limited availability of a resource, it may necessarily involve the licensing of some and the prohibition of others. That, however, is not the same thing as complete prohibition. "If I cannot lawfully prohibit altogether, I cannot lawfully prohibit subject to an absolute discretion on my part to exempt from the prohibition": McCarter v. Brodie (1950) 80 CLR 432, at p 498, per Fullagar J. A system of licensing which allows a licence to be refused upon arbitrary grounds unrelated to the scarcity or availability of the resource in which participation is sought cannot fairly be described as a system of rationing and cannot be described as reasonable in reliance upon the need for such a system. The relatively large number of licences that were granted under the Wireless Telegraphy Act indicates quite clearly the scope which the Act gave to the Minister to grant or refuse a licence for reasons unrelated to the limited spectrum of radio frequencies.

10. The next question is whether the prohibition against unauthorized use may be severed from s.6(1)(a), leaving the sub-section to operate in other respects. I think that this question admits of only one answer having regard to the quite separate and distinct expressions used in the sub-section. There can hardly be any doubt that the establishment, erection, maintenance and use of a station, however much they may be related, are concepts each of which, as a matter of construction, is capable of standing on its own. The severance of the word "use" does not alter the operation of the words which precede it upon the persons to whom the sub-section applies. Were it not for s.15A of the Acts Interpretation Act 1901 (Cth), it might be possible that from some of the other sections in the Wireless Telegraphy Act a legislative intent could be discerned to the effect that the Act, and s.6(1)(a) in particular, should have operated only as a whole. Such an intent might, perhaps, be seen in s.4 which gave the Minister the exclusive privilege of establishing, erecting, maintaining and using wireless telegraphy stations. And it might be thought that the prohibition against the unauthorized establishment, erection and maintenance of a station was ancillary to the prohibition against the unauthorized use of a station and not intended to have an independent operation. I very much doubt whether such would be the case: it seems more likely that, if it could not prohibit unauthorized use, the legislature intended to prohibit such unauthorized activities in relation to wireless telegraphy stations as it could. However, the matter cannot be approached upon that basis, for s.15A makes it plain, in my view, that the prohibition against the unauthorized establishment, erection and maintenance of a wireless telegraphy station is, in each instance, to be construed as having an operation independent of the prohibition against unauthorized use. It has been observed that a provision such as s.15A raises "a presumption in favour of the independence, one from another, of the various provisions of an enactment, to which effect should be given unless some positive indication of interdependence appears from the text, context, content or subject matter of the provisions": see Fraser Henleins Pty. Ltd. v. Cody (1945) 70 CLR 100, at p 127, per Dixon J. I can find no such indication of interdependence in the Wireless Telegraphy Act. There is no difficulty in treating the activities prohibited by s.6(1)(a) as distributive or divisible and no different meaning is required to be given to them when they are so treated.

11. That, then, leads to the next question, which is whether any of the prohibitions against the unauthorized establishment, erection or maintenance of a wireless telegraphy station was an interference with interstate trade, commerce or intercourse and for that reason an infringement of s.92. The argument put on behalf of the defendant placed strong emphasis upon the passage in the judgment of Dixon C.J. in Hospital Provident Fund Pty. Ltd. v. State of Victoria (1953) 87 CLR 1, at pp 17-18, in which he said:

"If a law takes a fact or an event or a thing itself forming part of trade commerce or intercourse, or forming an essential attribute of that conception, essential in the sense that without it you cannot bring into being that particular example of trade commerce or intercourse among the States, and the law proceeds, by reference thereto or in consequence thereof, to impose a restriction, a burden or a liability, then that appears to me to be direct or immediate in its operation or application to inter-State trade commerce and intercourse, and, if it creates a real prejudice or impediment to inter-State transactions, it will accordingly be a law impairing the freedom which s.92 says shall exist. But if the fact or event or thing with reference to which or in consequence of which the law imposes its restriction or burden or liability is in itself no part of inter-State trade and commerce and supplies no element or attribute essential to the conception, then the fact that some secondary effect or consequence upon trade or commerce is produced is not enough for the purposes of s.92."

Counsel for the defendant recognized the possibility that a broader conception of interstate trade, commerce or intercourse might be extracted from later cases: see North Eastern Dairy Co. Ltd. v. Dairy Industry Authority of N.S.W. (1975) 134 CLR 559; Permewan Wright Consolidated Pty. Ltd. v. Trewhitt (1979) 145 CLR 1; Smith v. Capewell (1979) 142 CLR 509; Australian Coarse Grains Pool Pty. Ltd. v. Barley Marketing Board (No.2) (1985) 59 ALJR 516; 59 ALR 641. He was, however, content to rest his argument upon the passage which I have set out, submitting that the erection and maintenance of a wireless telegraphy station were both essential to the transmission of television messages interstate, that being the form of trade, commerce and intercourse in which his client was admittedly engaged, and were therefore inseparable concomitants of it.

12. The contrary argument, which was put on behalf of the Commonwealth, placed reliance upon cases which draw a line between acts or transactions which are preliminary to interstate trade, commerce or intercourse and the trade, commerce or intercourse itself. These cases fall into two categories. There are those dealing with the manufacture or production of goods for interstate trade or commerce in which it was held that there can be no trade in the goods until they come into existence: Grannall v. Marrickville Margarine Pty. Ltd. (1955) 93 CLR 55; Beal v. Marrickville Margarine Pty. Ltd. (1966) 114 CLR 283; Damjanovic &Sons Pty. Ltd. v. The Commonwealth (1968) 117 CLR 390; Bartter's Farms Pty. Ltd. v. Todd (1978) 139 CLR 499. And there are the cases in which it was held that a prohibition against the importation of goods for use in interstate trade or commerce does not operate upon, and so does not interfere with the freedom of, interstate trade or commerce: Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd. (1965) 113 CLR 177; Ansett Transport Industries (Operations) Pty. Ltd. v. The Commonwealth (1977) 139 CLR 54. Whilst in Ansett Transport Industries (Operations) Pty. Ltd. v. The Commonwealth Aickin J. pointed out, at p 113, that the importation cases might also be explained upon the basis that s.92, being dependent for its operation upon the introduction of uniform customs duties, necessarily contemplates prohibitive measures against imports. Nevertheless those cases, as well as the cases dealing with manufacture or production, also rest upon the proposition that the relevant activity is anterior to interstate trade and does not form part of it: cf. Australian Coarse Grains Pool Pty. Ltd. v. Barley Marketing Board (No.2) at p 527; pp 659-660 of ALR It is not enough to attract the protection of s.92 that the activity "... affects something which, because it is a sine qua non to the existence of some subject of the freedom which s.92 guarantees, has a consequential effect on what might otherwise have been done in inter-State trade": Grannall v. Marrickville Margarine Pty. Ltd. at p 78.

13. It is true that in Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd., at p 204, Windeyer J. expressed the view that "... to deny to a person lawfully engaged in inter-State trade things requisite and necessary for carrying on his trade might ... in some circumstances contravene s.92". But if that is a valid qualification, it carries this case no further so far as establishment and erection are concerned, because, in speaking of lawful engagement in interstate trade, it presupposes the lawful establishment or erection of a wireless telegraphy station. There might be, in some circumstances, difficulty in drawing the line required by the manufacture or production cases and the importation cases having regard to the later cases of North Eastern Dairy Co. Ltd. v. Dairy Industry Authority of N.S.W.; Perre v. Pollitt (1976) 135 CLR 139; and Australian Coarse Grains Pool Pty. Ltd. v. Barley Marketing Board (No.2). However the difficulty does not, I think, arise in this case in relation to the establishment and erection of a wireless telegraphy station which can, as I shall point out, be clearly seen as activities which are preparatory to the transmission and receipt of messages.

14. However, it can, I think, be said that the maintenance of a wireless telegraphy station is not a mere preliminary to the use of the station. The maintenance of a wireless telegraphy station, as that word was used in s.6(1)(a), involves keeping the station in good order and repair and, notwithstanding that as a matter of construction it may be regarded separately, it is an element of the use of the station rather than an activity which precedes it. Cf. Australian Coarse Grains Pool Pty. Ltd. v. Barley Marketing Board (No.2) at p 520; p 647 of ALR If, as is clear in this case, the use of the station constitutes interstate trade or commerce, then in my view so too does the maintenance of the station. It is, to put it in the words of Dixon C.J. in the Hospital Provident Fund Case, an attribute of use which is essential to such use. For the same reason that the prohibition against the unauthorized use of the station is invalid, so must the prohibition against unauthorized maintenance be invalid.

15. The establishment and erection of a wireless telegraphy station can, on the other hand, only be seen as something separate from the trade, commerce or intercourse involved in its use. They are prerequisites to the use of the station but no more so than is the manufacture or importation of goods a prerequisite to their entry into interstate trade and commerce. The establishment and erection of a wireless telegraphy station is the method by which an operator equips himself with the wherewithal to send television messages and so engage in trade, commerce or intercourse but it is a mere preparation for that activity and, even if it constitutes trade or commerce of itself it is, I think, clearly of an intrastate and not interstate character. See Beal v. Marrickville Margarine Pty. Ltd., at pp 304-305, per Kitto J. If, as the cases show it can, a line is to be drawn between acts of preparation for engaging in interstate trade, commerce or intercourse and the actual interstate trade, commerce or intercourse itself, then it appears to me that the establishment and erection of a wireless telegraphy station falls within the former category. The cases to which I have referred show not only that such a line can be drawn but also that it ought to be drawn. Even if the effect of prohibiting preliminary activities, which are not of themselves interstate trade, commerce or intercourse, is to prevent or impede entry into interstate trade, commerce or intercourse, there is no burden upon interstate trade, commerce or intercourse and no invalidity on that account. It is only acts or transactions which amount to interstate trade, commerce or intercourse that are protected by s.92, not freedom of commercial dealing: Australian Coarse Grains Pool Pty. Ltd. v. Barley Marketing Board (No.2) at p 542; p 686 of ALR

16. The submission made in a number of ways on behalf of the defendant amounted in the end to the one thing: the establishment and erection of a wireless telegraphy station are inseparably connected with its use for the purpose of transmitting television messages in the course of interstate trade, commerce or intercourse. But for my part I think that there is a clear separation between the establishment and erection of a wireless telegraphy station and its use, certainly its use in interstate trade, commerce or intercourse. Obviously the establishment and erection of the station are essential before it can be used, but to say as much is not to say that establishment and erection constitute an attribute of trade, commerce or intercourse, let alone an essential attribute of interstate trade, commerce or intercourse. It is to the noun "attribute" as well as the adjective "essential" that attention should be given in the passage which I have quoted from the judgment of Dixon C.J. in the Hospital Provident Fund Case.

17. It was submitted that the nature of the legislative power to enact the Wireless Telegraphy Act supports the argument that the establishment and erection of a wireless telegraphy station is part and parcel of its use and not an antecedent activity which may be regarded separately. The relevant power is contained in s.51(v) and gives to the parliament power to make laws with respect to postal, telegraphic, telephonic, and other like services. As I understand the submission, it is said that the power to prohibit the establishment or erection of a wireless telegraphy station must be the power to make laws with respect to telegraphic services and hence the establishment and erection of such a station must form part of those services or be incidental to them. Thus, it is said, there is an inseparable connexion between the establishment and erection of a wireless telegraphy station and its use which attracts the protection of s.92 to the one as well as the other. I think that the argument is misconceived. Section 92 does not speak of telegraphic services but of interstate trade, commerce and intercourse. Not all that falls within the subject of telegraphic services constitutes trade, commerce or intercourse or, at all events, interstate trade, commerce or intercourse. What may be a sufficient connexion to bring an activity within the legislative power may be insufficient to bring it within the description of interstate trade, commerce or intercourse for the purposes of s.92. There is, in my view, no reason to be found in the legislative power for regarding the establishment and erection of a wireless telegraphy station as other than antecedent to and separate from the trade, commerce or intercourse involved in its use.

18. Counsel for the defendant, as part of his argument, pointed to the fact that it was not the unauthorized erection of a wireless telegraphy station which was prohibited by s.6(1)(a) but the unauthorized erection of a station for the purpose of transmitting or receiving messages by means of wireless telegraphy. This, it was said, was sufficient to establish an inseparable connexion between erection and use. However, a common purpose does not preclude the separation of the two activities for the purposes of s.92: it was never in question in the cases to which I have referred that the purpose of the manufacture, production or importation of the goods was to engage in interstate trade but they nevertheless remained antecedent activities. Moreover, the reference to purpose in s.6(1)(a) may be readily understood as making explicit the legislative power upon which reliance was placed.

19. It remains only to deal with the last submission advanced on behalf of the defendant which was that the operative sections of the Wireless Telegraphy Act impinged upon an implied, constitutional guarantee of freedom of communication. This submission was based upon a view expressed by Murphy J., first in Buck v. Bavone (1976) 135 CLR 110 and subsequently in Ansett Transport Industries (Operations) Pty. Ltd. v. The Commonwealth and McGraw-Hinds (Aust.) Pty. Ltd. v. Smith (1979) 144 CLR 633. Some support for such an implication might be found in the judgment of Griffith C.J. and Barton J. in R. v. Smithers; Ex parte Benson (1912) 16 CLR 99, but the guarantee of freedom of communication which they found by implication in the Constitution was found by the other members of the Court, Isaacs and Higgins JJ., to be expressly provided for by s.92. There can, of course, be no room for implication in the face of express provision.

20. In Buck v. Bavone and subsequent cases, Murphy J. has expressed the opinion that the freedom which s.92 was intended to secure was freedom from fiscal imposts only. Whether as a matter of history the intention was so confined is something upon which scholars may differ but for a lawyer the intention must be drawn primarily from the words used and they do not admit of any such interpretation. In Uebergang v. Australian Wheat Board at pp 315-316, Aickin J. observed that the view advanced by Murphy J. contemplated a total ban on the movement of goods from one State to another, something which he regarded as irreconcilable with both the language of s.92 and its basic function in the Constitution. And in Clark King &Co. Pty. Ltd. v. Australian Wheat Board at p 151, Barwick C.J. pointed out that if s.92 only spoke as to border duties, then in reality it was only addressed to the Commonwealth, the States already being precluded from the imposition of border duties by s.90. He continued: "that the 'barbarism of borderism' was a factor in the acceptance of s.92 may be conceded. But border duties were but the more obvious manifestation of legislative and executive acts which share in that barbarism. The idea that the Commonwealth would impose border duties, which of necessity must be uniform and without discrimination so far as States were concerned, is somewhat ludicrous. That s.92 was only designed to prevent the Commonwealth pursuing such a course is beyond belief." And, of course, authority is uniformly against the view that s.92 is so confined. Perhaps the most relevant of the authorities for present purposes is Gratwick v. Johnson (1945) 70 CLR 1, for in that case it was held that the freedom guaranteed by s.92 to intercourse extends to communication in the form of travel interstate for purposes other than commercial purposes. I do not think that any implication can be made of the sort for which the defendant contends in view of the established scope of s.92.

21. I would answer the questions in the same manner as the Chief Justice.

Orders

Answer the questions as follows:

Question 1: Does section 92 of the Constitution prevent the application of sections 4, 5, 6(1) and 7(1) of the Wireless Telegraphy Act 1905 (Cth), as amended, or any of those sections to the actions of the defendant described in paragraphs 2 to 5 hereof?

Answer: Yes, but only in so far as those sections relate to the use of the station or appliance.

Question 2: Does any implied constitutional guarantee prevent the application of sections 4, 5, 6(1) and 7(1) of the Wireless Telegraphy Act 1905 (Cth), as amended, to the actions of the defendant described in paragraphs 2 to 5 hereof?

Answer: No.

Order that the costs of the proceedings in this Court be
paid by the defendant.