Scutchings v George

[1990] HCATrans 127

':-'l•iawt'.r

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No MS of 1990

B e t w e e n -

KEVIN PAUL SCUTCHINGS

Aoolicant '.

and

BYRON NEVILLE GEORGE

Respondent

Application for special

leave to appeal

DEANE J
GAUDRON J

McHUGH J

Scutchings

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 JUNE 1990, AT 12.01 PM

Copyright in the High Court of Australia

MlT9/l/PLC 1 8/6/90

MR K.M. HAYNE± QC: If Your Honours please, I appear with

my earned friend, MR N.J. GREEN, on behalf of

the applicant. (instructed by Slater & Gordon)

MR H.C. BERKELEY, QC, Solicitor-General for Victoria: If

the Court pleases, I appear with my learned friend,

MR G. SILBERT, for the respondent. (instructed by

the Solicitor to the Director of Public Prosecutions)

DEANE J:	Yes, Mr Hayne.
MR HAYNE:	If Your Honours please. Your Honours, may I go

directly to the FISHER V FISHER point that may be

thought to arise in this case and deal with that

first before dealing with the merits. In that

connection, might I hand to Your Honours a small

bundle of the statutes and copies of FISHER's case,

CIVIL AND CIVIC and SAFFRON's case.

DEANE J:	Mr Hayne, you can assume that we are fairly well acquainted with the problem in that there is a recent - - -
MR HAYNE:	I had not intended to take Your Honours in detail to the authorities, Your Honours, it was simply an
abundance of caution that - - -

DEANE J: There is a case O'TOOLE which was recently argued

and which is reserved which required us to look at

it.

MR HAYNE:  Yes. Your Honours, the point we make in relation

to competence is this:  we would submit that in this

case, arising as it does under section 83 of the

MAGISTRATES COURT ACT of Victoria, the Full Court's answers to the questions in the case ~tateddo constitute a judgment:,

decree or order within section 73, that is to say,

the point we put is not one which seeks to canvass

the correctness of FISHER or the cases upon which

it was based. Rather, we seek to put the proposition

that the answers of the Full Court do, in the

circumstances of this case, constitute an adjudication

binding on the parties and that the answers are not

simply an advisory opinion on the points raised.

DEANE J:	Very well. Well, you might proceed to the substance
of the application.
MR HAYNE:	If Your Honours please. Your Honours, the substance

of the application concerns the -

DEANE J: Well, you can take it we are well acquainted with

the facts and the judgments. You might direct specific attention to the question whether the decision is attended by sufficient doubt to warrant

the grant of special leave.

MR HAYNE:  If Your Honours please. To that I was about to come

directly. We would submit that the key to the

MlT9/2/PLC	2	8/6/90
Scutchings

Full Court's conclusions appears at pages 58 and 59

of the application book and it is to that that I

seek to direct attention in relation to demonstrating

error. The court at page 58 concluded, at about

point 5 of the page, that the Commonwealth

legislation was intended:

to be an exhaustive and exclusive statement

of the law relating to "radiocommunications".

And the court then sought further to identify what
was meant by that and it is in that further

identification that we say the court falls into

error.

Towards the end of page 58 of the application

book, the court notes that the primary concern of

the Act is:

with the method and manner of communication

and the physical means whereby that may be

effected -

not with content and not with:

the uses to which radiocommunications may be put or the purposes for which they may

be used -

They accept the proposition, we say correctly, that

the Act discloses an intention, that is, the

Commonwealth Act discloses an intention described

on page 59 as:

"an intention ..... exhaustively to express

by its enactment the law 'for management

of the radio frequency spectrum'".

We would submit that what is meant by that is that

the intention of the Commonwealth legislature was
to exhausively express by its enactment what equipment

may be used and transmissions sent and received and

what equipment may not be used and what transmissions

may not be sent or received. For we submit that if

it is right to say, as we contend it is, that there

is an exhaustive and exclusive statement of the law with

respect to radiocommunications primarily concerned

with the method and manner of communication and the

physical means whereby that is effected, it follows

that the Act is concerned to state the law - the
federal Act is concerned to state the law with respect
to methods and manner of both transmission and

receiving for that is what is meant by radio

communication and it is concerned exhaustivelv to

state the law with respect to the physical means

whereby transmission and reception may take place.

For that, we say, follows from the earlier conclusions.

MlT9/3/PLC	3	8/6/90
Scutchings

If then, as we say it is right to conclude,

there is an exhaustive control of what equipment

may be used to transmit or receive, it follows that

a State law saying, "You may not possess or use", as

this State law says, "a particular kind of receiver",

it thereby enters into the field which the

Commonwealth has staked out for itself: the

management of the spectrum, the regulation of the

method and manner of communication, communication

being both transmission and reception.

We would submit that the Full Court sought to

draw a dichotomy between control of the use of the

spectrum which they said was covered by the

Commonwealth Act and control of the content of

transmissions or receptions which they concluded was a field open to the State Act, it not having

been covered by the Commonwealth, but we submit

that that dichotomy is irrelevant when, in its

terms, the Victorian Act is concerned with a particular

use of the spectrum, is concerned with the possession

or use of devices for reception of particular kinds of

transmission.

So that we say that it is in the adoption of a

dichotomy which is irrelevant to the problem presented

to the Full Court that the error of the Full Court

is seen and further that the error of the Full Court

is to be identified from the description that the

court itself gave of the field which it is that the

Commonwealth Act stakes out. We would submit that

the proper definition of the field staked out by the

Commonwealth is a field which the Victorian Act, in

its terms, enters upon and thus leads to the

section 109 problem. That is the error which we point

to in the judgment below.

Your Honours, as to the general application,

the matters are referred to in the application book

and Your Honours have read them, developing them

is otiose. We point to those errors. We submit

leave ought go. If Your Honours please.

DEANE J:  Thank you, Mr Hayne. Mr Solicitor?

MR BERKELEY: It is not, of course, every section 109 case that

should trouble the High Court.	Your Honour, that
is the first point.

Secondly, the relationship between a Commonwealth

Act and State criminal laws has recently been conside~ed

in McWATERS V DAY and LOVE V ATTORNEY-GENERAL and

the principles laid down in McWATERS V DAY, at any

rate - the other case not having been decided at that

time - were applied by the supreme court. There is no

suggestion that the supreme court misunderstood the

principle to be applied. What it saidwas that the

court was wrong in the application of an established

principle to particular State legislation. That is

MlT9/4/PLC	4	8/6/90
Scutchings

something about which minds can differ

and the decision, even if it were wrong, could stand

quite comfortably without doing any damage to the

fabric of the CONSTITUTION.

Next, the Connnonwealth Act deals with radio

and television transmission and licences.	Now,
thereare lots of State and Connnonwealth Acts.	For

instance, there is an ENVIRONMENT PROTECTION ACT

which says you cannot use a television or radio

set at 3 o'clock in the morning so loudly as to
disturb your neighbours. There is an Act of

Parliament which says you cannot use a car phone while the car is moving or that you cannot use a

radio receiver to pick up police broadcasts. There

is a Commonwealth Act, the TRADE PRACTICES ACT, that

says you -inter alia, it would say you cannot use a

radio for the purpose of conveying misleading or

deceptive information in the course of trade.

Now, if what is put forward by the applicant

is right, the RADIOCOMMUNICATIONS ACT would be
inconsistent with all that Commonwealth and State

legislation.

DEANE J:  It may not with all of them. It is hard to see how

he could not say picking up a police broadcast was

inconsistent, but one can see possible grounds of

distinction for the others.

MR BERKELEY: Well, what has happened in this case was picking

up a radio wave put out by a radar gun.

DEANE J:  No, what I said was I do not see how we

distinguish between this case of picking up a police

broadcast but I can see how the other cases might be

distinguishable.

MR BERKELEY:  Yes. It is not the sort of distinction I am

very often encouraged to make in this Court,

Your Honour. Also, there is provision in the Act itself which indicates that it is not the intention

that users of receivers should enjoy a blanket immunity

from ordinary criminal law of the State - that is

section 65(19) at page 51.

DEANE J:	Page 51?
MR BERKELEY:	Of my copy of the RADIOCOMMUNICATIONS ACT,

Your Honour. It is section 65(19).

DEANE J:	We do not seem to have that Act, Mr Solicitor.
MR HAYNE:	There are copies here which can be made available.

MR BERKELEY:  Thank you. I am indebted to my learned friend.

DEANE J:  He has been generous with his Acts all round today.

MR HAYNE: This is my solicitor's Acts, Your Honour.

MlT9/5/PLC	5	8/6/90
Scutchings

MR BERKELEY: This is the Act we are dealing with, Your Honour,

which is said to give rise to an inconsistency.

Section 65 is the section headed "Offences" and there

is a subsection, (19), which clearly indicates an
intention that it should operate concurrently with

State legislation.

DEANE J:	Yes.
MR BERKELEY:	And I think I have to take Your Honours to one page in the application book for the purposes of
emphasizing the very limited nature of the device
in this case because our submission is that in any event it is not a receiver within the meaning of
the RADIOCOM:MUNICATIONS ACT and if that were
right the constitutional question would never arise,
and that is at the bottom of page 39. If we can go
to the fourth line from the bottom of the page:

Further it was agreed that the Whistler Q3000 -

that is the device -

found in the possession of the appellant

would receive any transmission within

that frequency band and indeed would receive

all transmissions within its range which

was said to be less than 420 terahertz.

It was likewise agreed that it could not

and did not discriminate between transmissions

within that range nor could it or did it

indicate the distance of those transmissions.

It would receive through 360 degrees and its

only other function was to indicate by buzzer

or warning light the receipt of a transmission.

So that if there was a radio broadcast or television

broadcast of any sort within the particular range,

what would happen on the Whistler was a little light \'A>uld

come up or buzzer would sound.

Now, if one goes to the definition of

"radiocommunication" in section 3(1):

"radiocommunication" means .•...

(b) reception of radio transmission,

for the purposes of the communication of

information between persons and persons,

persons and things or things and things.

And:

"receiver" means any thing designed or

intended for use for the purposes of

radiocommunication by means of the

reception of radio transmission -

MlT9/6/PLC	8/6/90
Scutchings

Now we say, with respect, that a thing which merely

lights up or buzzes any time any sort of transmission

is around, irrespective of the content of the

transmission - it might be Derryn Hinch - you would

still only get a buzzer. That is not designed or

used for the purpose of communication of information

between persons and persons or persons and things.

Those are our submissions.

DEANE J:  Thank you, Mr Solicitor. Mr Hayne?

MR HAYNE:  If Your Honours please. Your Honours, as for the

last point made, we submit that the device is a

receiver within the purposes of the Act. We say

that that is so simply because of its nature, that

it is designed for the purpose of reception of

electromagnetic radiation called radio transmission.

As to the first point made, Your Honour, we

would submit with respect that the provisions of

section 65(19) does not constitute any general

statutory indication on the part of the federal Act

not to, as the Full Court, stake out a particular

field as its exhaustive and exclusive domain. We

submit that domain is as I put it in my submissions

in-chief, I do not desire to repeat them to

Your Honours. Your Honours have heard them. We

submit leave should be granted.

DEANE J:	In this matter, the Court is of the view that the
actual decision of the court below is not attended
by sufficient doubt to warrant the grant of special
leave to appeal. In that regard, I would repeat what
has been frequently said on other occasions, namely,
that  a refusal of special leave to appeal does
not indicate approval of everything that is said in
the judgment of the court below.

Special leave is therefore refused.

MR HAYNE: If Your Honours please.

AT 12.20 PM THE MATTER WAS ADJOURNED SINE DIE

MlT9/7/PLC	7	8/6/90
Scutchings