10'1 Other like services drafting history

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TOPIC 10 COMMUNICATIONS AND TECHNOLOGY

• 10.1 Other like services - drafting history
• 10.2 Control of broadcasting
• 10.3 Section 51(v) and incidental power
• 10.4 Progressive interpretation

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10.1 Other like services - drafting history

• Section 51(v) Postal, telegraphic, telephonic
  and other like services
• 1891 Convention - did some delegates know about
  recent discoveries in physics?
• 1897-98 Convention other like services - an
  explicit invitation to progressive interpretation

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10.2 Control of broadcasting

• R v Brislan Ex parte Williams (1935) 54 CLR 262
  (Latham CJ, Rich, Starke, Dixon, Evatt, and
  McTiernan JJ)
• decided the Commonwealth could control radio
  broadcasting (Dixon J dissented)

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American history

• power over post offices and post roads
• interpreted to include telegraphic communication
  in Pensacola Telegraph Co v Western Union
  Telegraph Co (1878) 96 US 1
• Congressional control of radio and television
  broadcasting now regarded as within the Commerce
  Clause

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Privy Council on BNA Act

• In Re Regulation and Control of Radio
  Communication in Canada 1932 AC 304
• Privy Council decision holding that radio
  broadcasting came within power over telegraphs
  and undertakings connecting the Provinces

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Brislan Rich and Evatt JJ

• decided radio broadcasting is a telephonic
  service
• referred to USA and Canada
• noted that s 51(v) bears upon its face an
  attempt to cover unknown and unforeseen
  developments (54 CLR at 283)

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Brislan Dixon J

• identified the like element as meaning the
  communication must be interpersonal

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Brislan key points

• The constitutional issue was whether radio
  broadcasting was a s 51(v) service
• It was not in contest that radio transmission
  could be used to conduct a s 51(v) service
• the control of distant communication according
  to a systematic plan descriptive but not
  definitive?

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Television broadcasting

• Jones v Commonwealth (No 2) (1965) 112 CLR 206
• Held, applying Brislan, television broadcasting
  is a like service

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10.3 Section 51(v) and incidental power

• Herald Weekly Times Ltd v Commonwealth (1966)
  115 CLR 418
• Licence to conduct television broadcasting may be
  subject to conditions. The conditions need not
  relate to the subject matter of s 51(v) (ie non-
  purposive interpretation)
• Ruling on prescribed interests rests on implied
  incidental power

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HWT case and implied incidental power

• a means . . . for effectuating a desired end
  which is within power (Kitto J 115 CLR at 437)
• A generous view of implied incidental power
• The purpose relates to the subject matter and
  there is no evidence of ulterior purpose
• The States have never been involved in regulating
  this subject matter

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Are legislative means purely a matter for
Parliament?

• Kitto J in HWT says that the scope of the
  measures adopted to control prescribed interests
  is a question of degree for the Parliament to
  decide (115 CLR at 437)
• Note the comments of Mason CJ in Nationwide News
  (1992) 177 CLR 1, 28

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How far does s 51(v) extend?

• Cable television, Internet etc are all means for
  conducting communication services
• Newspapers and other print media?
• Control of computer databases?
• Could the Commonwealth enact a uniform defamation
  code?

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10.4 Progressive interpretation

• Grain Pool 2000 HCA 14 upheld Commonwealth
  power to legislate for plant breeders rights
  under Constitution s 51(xviii).
• Endorses the distinction between central type and
  circumference made by Higgins J (dissenting) in
  Union Label (1908) 6 CLR 469.

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Grain PoolCompares the interpretation of s
51(xviii) with s 51(v), citing Brislan and Jones
v Commonwealth (No 2)

• Cites with approval the dictum in Nintendo (1994)
  181 CLR 134 that the Commonwealth may make laws
  which create, confer, and provide for the
  enforcement of, intellectual property rights in
  original compositions, inventions, designs, trade
  marks and other products of intellectual effort.
• Decides that s 51(xviii) is non-purposive.