R v Brislan; Ex parte Williams - [1935] HCA 78

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THE KING BRISLAN Ex PARTE WILLIAMS. Constitutional Law (Cth.)-Wireless telegraphy-Radio broadcasting-Validity of

statute- Postal, telegraphic, telephonic and other like services -Appliance for receiving 'messages" " by means of wireless telegraphy-Broadcasting receiving SYDNEY,

set-The Constitution (63 &64 Vict. c. 12), sec. 51 (v.) -Wireless Telegraphy Oct. 25, 28,

Act 1905-1919 (No. 8 of 1905-No. 4 of 1919), secs. 2, 6. 29; Dec. 17.

Sec. 51 (v.) of the Constitution confers on the Commonwealth Parliament power to legislate with respect to radio broadcasting.

A wireless set kept for the reception of broadcast programmes is an appliance maintained for the purpose of receiving messages by means of wireless telegraphy within the meaning of sec. 6 of the Wireless Telegraphy Act 1905-1919, and that section, SO construed, is validly enacted under the power conferred by sec. 51 (v.) of the Constitution.

So held by Latham C.J., Rich, Starke, Evatt and McTiernan JJ. (Dixon J. dissenting).

Observations on the meaning of the words "other like services " in sec. 51 (v.) of the Constitution and of the word "messages" in sec. 6 of the Wireless Telegraphy Act 1905-1919.

ORDER NISI for writ of prohibition.

Upon an information laid by Roy Vincent Brislan, a wireless inspector employed in the Postmaster-General's Department, Dulcie Williams was charged before a stipendiary magistrate, sitting in the Court of Petty Sessions, Sydney, for that she did on or about 26th September 1934, at Surry Hills, in the State of New South

54 CLR 263

Wales, without authorization by or under the Wireless Telegraphy Act 1905-1919, maintain an appliance for the purpose of receiving messages by means of wireless telegraphy contrary to the Act in such case made and provided.

The evidence showed that upon the occasion of a visit paid by departmental officers on 26th September 1934 to the defendant's premises they found there a five valve all-electric wireless receiving set connected to an indoor aerial. They heard a B class broad- casting station broadcasting speech. On the following day the defendant admitted to the officers that she owned the wireless receiving set, that it had been installed for a week, and that she did not have a current wireless listener's licence. The receiving set was capable of receiving messages or any audible sounds or matter from a wireless transmitting or broadcasting station. The defendant was convicted and fined.

Upon her application Evatt J. ordered the informant and the magistrate to show cause before the Full Court of the High Court why a writ of prohibition should not be issued to restrain them and each of them from further proceeding on or in respect of the convic- tion. The grounds of the order nisi were (n.) that the Wireless Telegraphy Act 1905-1919 is ultra vires the Commonwealth of Australia Constitution (b) that the regulations as to broadcasting made under that Act are ultravires the Act; (c) that the Constitution gives no authority to the Commonwealth Parliament to make laws or authorize regulations of a general character…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Brislan; Ex parte Williams

Details

AGLC: R v Brislan; Ex parte Williams [1935] HCA 78
Case: [1935] HCA 78
Decision Date: 17 December 1935

CaseChat Overview and Summary

The case of *R v Brislan; Ex parte Williams* involved an application for a writ of prohibition to restrain further proceedings on a conviction for maintaining an appliance for receiving wireless telegraphy without authorization. The applicant, Dulcie Williams, had been charged under the *Wireless Telegraphy Act 1905-1919* for operating a wireless receiving set without a licence. The informant was Roy Vincent Brislan, a wireless inspector. The matter was heard by the Full Court of the High Court of Australia.

The central legal issues before the Court were whether the *Wireless Telegraphy Act 1905-1919* was validly enacted under the Australian Constitution, and specifically whether the Commonwealth Parliament had the constitutional power to legislate with respect to radio broadcasting. This involved determining whether radio broadcasting fell within the scope of "postal, telegraphic, telephonic, and other like services" as enumerated in section 51(v) of the Constitution, and whether a wireless receiving set constituted an appliance for receiving "messages" within the meaning of the Act.

A majority of the High Court (Latham C.J., Rich, Starke, Evatt, and McTiernan JJ.) held that the Commonwealth Parliament did possess the power to legislate with respect to radio broadcasting under section 51(v) of the Constitution. The Court reasoned that radio broadcasting constituted a form of wireless telephony and that the term "telephonic" and "telegraphic" services, along with "other like services," were intended to encompass future developments in communication technology. The Court found that a wireless receiving set was an appliance maintained for the purpose of receiving messages by means of wireless telegraphy, as defined by the Act, and that the Act, so construed, was a valid exercise of the Commonwealth's legislative power. Dixon J. dissented.

The Court ordered that the order nisi for a writ of prohibition be discharged, meaning the conviction of Dulcie Williams was upheld.

Orders