FEATURE

IS AUNTY EVEN CONSTITUTIONAL?

A ship stoker’s wife versus Leviathan.

n The Bolt Report in May 2013, an and other like services,” authorised the federal erstwhile Howard government minister government to be involved with radio broadcasting. was asked whether privatizing the At first sight, it would seem a slam dunk for ABC would be a good thing. Rather Dulcie. How could the service of being able to Othan answer, he made pains to evade the question, send a letter or a telegram, or make a phone call to leaving viewers with the impression that there are one’s Aunt Gladys in Wangaratta to get details for politicians who would like to privatise the ABC this year’s family Christmas dinner, be in any way but don’t say so from fear of the controversy. the same as radio broadcasting news, music, and If only they had the courage of the poor, barely crime dramas to millions of people within a finite literate ship stoker’s wife in 1934 who protested geographical area? against the authorities’ giving her a fine for the This argument has been reduced to a straw man simple pleasure of listening to radio station 2KY by no less an authority than the current federal in the privacy of her solitary boarding house room. Parliamentary Education Office, which asserts on All federal legislation has to come under what its website that Dulcie Williams “refused to pay the is called a head of power, some article in the listener’s licence on the grounds broadcasting is not Constitution which authorises Parliament to “make mentioned in the Constitution.” It is true that, when laws … with respect to” that particular sphere. For addressing the High Court, Williams’s barrister did controlling broadcasting in general and maintaining declare that the word “broadcasting” was not in government media organisations such as the ABC the constitution, but he then went on to explain and SBS in particular, this has been considered to in detail why the actual concept of broadcasting, be Section 51(v), which authorises laws regarding whether mentioned by word or not, could not be “postal, telegraphic, telephonic and other like interpreted from any words contained therein. services.” This affirmation came from an obscure Placitum V of Section 51, he claimed, High Court of case of 1935, R v Brislan, related to services to enable all members of the which challenged the government’s right to charge community to engage in “mutual radio listeners licence fees. communication” at their will and After being given the fine in September 1934 by “hedged about with secrecy and Roy Vincent Brislan, an inspector of the department privacy by law.” Broadcasting was of the Postmaster General, Dulcie Williams of “the very antithesis of this,” in that Surry Hills, , decided that rather than pay it was very public as well as lacking the one quid she would challenge the right of the “the mutuality of exchange which Postmaster-General to make her pay for listening to her “all-electric wireless receiving set.” The issue at the heart of the matter was whether that phrase from the constitution, “to make laws … Philip Lillingston is a mature age law graduate and a with respect to postal, telegraphic, telephonic service Melbourne writer.

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was the essence of postal telegraphic and telephonic broadcasting was, in itself, a postal, telephonic, or services.” The subsection, he argued, was limited to telegraphic service. point-to-point messages sent by or on behalf of one individual to another under circumstances which Their Honours of the Majority permitted the recipient replying to the sender. He In leading the majority opinion, Chief Justice added, perhaps sardonically, that his client had been began with the equates argument. using her radio to only listen to musical programs In defending the claim that one-to-many and not to send or receive messages. broadcasting “is a form of wireless telephony,” he wrote: The Same or Just Similar? It must be noted that Section 51(v) actually It has been suggested that a telephone is an covers two categories. Commentators often fail to instrument which provides communication make the distinction, which leads to confusion in from point to point only, and that if what interpreting a ratio decidendi (the rationale for the is heard at the receiving end is available for decision). The government is authorised to involve all bystanders to hear, the communication itself in something which is a postal, telegraphic, is not telephonic in character. This or telephonic service (what could be called the argument does not appear to be sound. equates argument). Secondly, it may involve itself If an amplifier is attached to an ordinary in an undertaking which, while not actually being telephone receiver the essential character postal, telegraphic, or telephonic, is similar and of the operation, which consists in what falls within the genus, the common denominator, is ordinarily described as the reproduction of the three (the genus argument). of sounds at a distance, is not changed.

Most of the majority justices realised But it is. As the dissenting judge explained, the visible flaws in applying the genus a primary characteristic of the telephone is inter- communication—hearing what is said from a argument to the very different technology particular person and then responding to it. With of broadcasting. broadcasting, “There is no inter-communication; no means is provided by which one individual can Some writers assume the case was decided on originate a message or establish communication the genus argument and declare it an excellent with another.” example of the Constitution of 1901 being written Perhaps the Chief Justice realised he was on to accommodate not only contemporary practices shaky ground with the equates argument. In any and concepts but also those yet to be invented. event, he added the genus argument to his rationale: With regards to the latter, they are indeed correct. What would better fit within the genus descriptor The common characteristic of postal, of “other like services” than emailing or phone telegraphic and telephonic services, which texting? Both are private, person-to-person, is relevant in this connection is, in my reciprocal communication services where no stretch opinion, to be found in the function which of credulity would be needed to justify government they perform. They are, each of them, involvement. communication services.* However, most of the majority justices realised the visible flaws in applying the genus argument Considering that all three were also private, to the very different technology of broadcasting. person-to-person, and reciprocal, it does seem If they were going to deny the appeal, they a bit of a stretch to describe their “common would have to find a way to rationalise that radio characteristic” merely as communication. If Chief

* R v Brislan[1935] HCA 78, per Latham CJ. Para. 13.

10 POLICY • Vol. 30 No. 4 • Summer 2014–2015 PHILIP LILLINGSTON

Justice Latham had been sent out by his wife to be telegraphic (or telephonic) or alternatively be buy “carrots, celery, spinach, or other like items,” in the same class of not just telephonic and would he have dared return home carrying telegraphic, but telephonic, telegraphic, and postal. deep-fried chicken and Angel cake because, after Finally there was an idiosyncratic ruling from all, they were all foodstuffs? Justice Heyden Starke, a frequent dissenter known Judges and H.V. Evatt, on the to be independent and occasionally hostile with other hand, seemed not to want to depend on— his colleagues. He also followed the Privy Council or touch with a 50 foot barge pole—the genus decision from In re Regulation and Control of argument. In delving into constitutional law Radio Communication but, unlike McTiernan, history, their joint opinion specifically notes Starke read from the case that broadcasting “fall[s] mistakes made by the United States in granting within … the word telegraphs.” Congress power to regulate “post offices and post So why was the genus argument hardly used? roads,” a narrow clause which presented difficulty The majority High Court judges were forced to when the federal government came to want to give these tortured arguments that broadcasting regulate the electric telegraph. The Australian actually was the same thing, rather than simply framers “accordingly . . . expressed themselves in similar, for very good reasons. terms calculated to cover developments in science and organization enabling the control of analogous The majority High Court judges were forced to and ancillary services” (emphasis added). It would give these tortured arguments that broadcasting be difficult to interpret this in any other way than actually was the same thing, rather than simply that the learned brethren were referring to the similar, for very good reasons. phrase “or other like services.” However, after establishing their belief that 51(v) “bear[s] upon its face an attempt to cover If, for the sake of the argument, we were to unknown and unforseen developments,” do they accept Latham’s reasoning about “communication take advantage of this genus phrase “calculated services,” where would it lead us? If radio’s one- to cover developments in science” and justify to-many communication were a “like service,” broadcasting under it? Without reason, they did then because both electrical and non-electrical not. Although they admit that, unlike telephony, communications are within the genus, it would “broadcasting does not give the advantage of follow that all one-to-many communications, one man communicating with another when he whether electrical or not, could also fall under wishes” and “the distinction is apparent,” their final government control. This would obviously include comment was that this later developed science of the printed word: newspapers and other journals. broadcasting till “is a telephonic service.” If the meaning of section 51(v) includes the right Compared to Latham’s almost 5,000 words, to control the press, surely something as important Justice McTiernan’s 273-word opinion was the as this would have been specifically mentioned by shortest of the case, and the thought that went the drafters of the constitution rather than simply into it appears to have been commensurate. assumed by the words “telephonic,” “telegraphic,” and “postal.” Are we to believe the drafters meant Since the decision … In re Regulation control of the press to be included but didn’t want and Control of Radio Communication in to add another subsection containing “the press”? Canada the view must be accepted that Why, because it would make the Constitution broadcasting … may be classed with too long? telegraphic and telephonic services. Piddington True, they may be in the same class, but had When King’s Counsel for Dulcie Williams, Albert the honourable gentleman considered the actual Bathurst Piddington, referred to the “secrecy wording of section 51(v)? The service had to actually and privacy” of mutual communications, he had

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reason to be conscious of the privacy, or supposed could have noted that the honourable gentlemen privacy, of telegrams. Twenty-two years earlier, he of the majority had contradicted each other. had been offered and had accepted a seat on the Taking the equates line, Starke J held that “the very court he was now addressing. This, however, Commonwealth [had] full authority to legislate followed an inopportune exchange of telegrams with respect to wireless telegraphy, including radio with his brother-in-law, who was acting on behalf broadcasting.” But Justices Rich, Evatt and Latham of Attorney General . Asked his all held it was not telegraphy but telephony that position on states’ rights, Piddington had answered: encompassed broadcasting. “In sympathy with supremacy of Commonwealth What is interesting about this is that, because powers.” Hughes was trying to stack the court there is no majority ratio decidendi, there can be with like-minded centralists. When the telegram little precedent set by R v Brislan. By a concept exchange leaked to the press, public outcry forced of law known as stare decisis, the reason given by Piddington to do the right thing and resign before the majority in one case sets legal precedent and even taking his seat. thus becomes a valid reason for ruling similarly in future cases with similar circumstances. But if Sir Paul Hasluck described Dixon as having there is a multitude of reasons, including some possessed “the most distinguished mind which contradict, what do you do? I have ever been privileged to know If you arbitrarily choose a ratio by one or two majority judges, then why should that take among fellow Australians.” precedence, even over an opinion by one or two dissenting judges? This problem was finally solved Piddington’s later career was reputable, while in 1994 by the full bench of the HCA in Re Tyler; marked by involvement in left-wing activist causes. Ex parte Foley, where it held that a judgement He chaired a Commonwealth commission in does not have a ratio if there is no common 1919 on the basic wage, reporting that it should majority reasoning. be increased dramatically; he wrote radical articles Of the six judges in Brislan, no four declared for Smith’s Weekly; he ran for political office a few the genus argument or the equates argument for any times, becoming a close associate of volatile, left- common one of postal, telegraphic, or telephonic. wing premier Jack Lang; and Legally speaking, government radio broadcasting he served as president of the state’s Industrial is constitutional because the High Court has said Relations Commission. In 1934, he undertook it is—even though there is no binding reason an ideological pilgrimage to the Soviet Union and that accompanies that 1935 decision. came back full of praise. He became prominent in a cause célèbre that The Dissenter same year when the government tried to deport Fortunately for the reputation of Australian Czechoslovakian-born communist agitator Egon jurisprudence, there was at least one member of Kisch, who was on a speaking tour in Australia. the High Court in 1935 who was not dismissive The government forced Kisch to submit toa of the appellant because of her low station nor dictation test of “a passage of fifty words in length intimidated by the high station of her opponents, in a European language,” as allowed under the both government and private. Immigration Restriction Act. Since the text used This was no less a figure than that great was in Scottish Gaelic, Kisch unsurprisingly did not Australian jurist Sir , who according pass. When the issue went all the way to the HCA, to was considered by at least Piddington defended Kisch—successfully. two Lord Chancellors to be “the greatest judicial lawyer in the English-speaking world.” Dixon Ratio decidendi non est was granted honorary degrees by both Oxford Piddington was probably too diplomatic to say so, and Harvard universities and a memorial prize by but on hearing the final decisions of the court, he Yale University “for services to mankind,” and

12 POLICY • Vol. 30 No. 4 • Summer 2014–2015 PHILIP LILLINGSTON described by then U.S. Secretary of State Dean general once again under Prime Minister Joe Lyons. Acheson as someone who would adorn the U.S. Academic Fiona Wheeler, in a 2011 Melbourne Supreme Court if it were possible to appoint him. University Law Review article, described how his Australian historian and 17th Governor-General political past continued to affect him: Sir Paul Hasluck described Dixon as having possessed “the most distinguished mind I have ever Once appointed to the bench, Latham been privileged to know among fellow Australians.” did not wholly eschew the heady world Dixon’s biographer describes him as “a classicist of federal government policy and politics. in spirit, a pessimist by inclination, sceptical, … [He] clandestinely advised several agnostic in religious matters, he had a profoundly conservative political figures, notably logical mind. … It would be hard to find a less Robert Menzies, Richard Casey and politically influenced judge than Dixon.” His Harold Holt, on a range of controversial dissent in R v Brislan proves the latter claim. He matters. … [I]t is readily apparent that was strongly anti-communist, and if anyone on many instances of Latham’s advising, the court (apart from the Chief Justice himself) most notably his involvement, via Richard had reason to rule against the appellant because of Casey, in the 1949 Liberal Party federal her communist-sympathising King’s Counsellor, election campaign, and his discussion it would have been Dixon. But it was he alone with Menzies following the Communist who ruled in her favour. Party Case, would today be regarded as Melbourne University professor Geoffrey clear affronts to basic standards of judicial Sawer, one of the leading contributors to research independence and propriety. in Australian government, law, and politics in the generation following World War II, is described Dixon’s dissenting viewpoint on Section 51(v), by the Oxford Companion to Australian Politics as an author who had “a lively appreciation of the he held, was an “overwhelmingly more probable human frailties and idiosyncrasies of judges.” In construction of what the Founders intended.” 1967, with the advantage of the passage of time, he wrote about R v Brislan of the “surprisingly As federal attorney-general in 1925, his large” majority who took the government position. antagonism towards communism manifested in Dixon’s dissenting viewpoint on Section 51(v), his department’s orchestrated anti-communist he held, was an “overwhelmingly more probable propaganda as well as his amendment to the Crimes construction of what the Founders intended.” In Act declaring it an offence to belong to seditious and 1965, in Jones v the Commonwealth (no 2), High revolutionary associations. When the well-known Court judge also opined that Communist Party Case of 1951 came before him, Dixon’s dissent in Brislan was correct. fellow judge Owen Dixon—who, as mentioned, Owen Dixon’s was the lone voice of reason, was no friend of communism himself—noted but unfortunately numerically unable to affect the that the Chief Justice “displayed an unrestrained court’s decision. hostility [towards Communist Party counsel] that I thought very unwise not to say unjudicial.” When A Political Angle Latham later showed Dixon the opening section of So why did the rule as his judgement, which subsequently became the sole it did? It may be relevant that Chief Justice John dissenting opinion, Dixon observed, “It sickened me Latham was not a paragon of the separation of with its abnegation of the function of the Court.” powers. Prior to joining the High Court, he In the Brislan hearing, which was Latham’s served as federal attorney-general with first the first HCA appearance, his role was to judge the Nationalist Party government, leader of the constitutional validity of legislation similar to the Nationalist Party, deputy leader of the newly Australian Broadcasting Commission Act, a law formed United Australia Party, and attorney- which the United Australia Party (UAP) government

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had passed three years earlier when he himself was The first bill on the subject was introduced into attorney-general. To invalidate the one act would federal parliament in November 1931 by the Labor have been effectively to invalidate the other, thus Party and eight months later, after a change of alienating his erstwhile colleagues in the UAP. If government, the Australian Broadcasting Act was Latham had ever entertained any doubts about introduced and passed by the opposition United the position he was going to take in this case, they Australia Party. It is an understatement to say may well have been banished by the Communist that any controversy about the Brislan case passed Party fellow traveller, Albert Piddington, facing him under the radar. Well-known judge and future from the other side of the bench. opposition leader H.V. Evatt thought so little of its There are certain other circumstances worth importance that he joined fellow judge George considering. R v Brislan was not the cause célèbre Rich and left the opinion to him. Australian of 1935. It was not the Mabo or Roe v Wade of its historian Ken Inglis’s two-volume, thousand-page day. There were no letters to the editor, protest history of the ABC, cited above, fails to mention marches, or agitprop plays filling the theatres. the HCA challenge once. Justice Dixon in his summation stated, “The As for the remaining four justices of the majority, present [case] would appear to me to be anything they may have thought to themselves that as long but a suitable occasion for deciding this important as the decision went the way the public wanted, constitutional question.” no one was going to harass them by criticising it. At the time, the high-tech concept of Besides, why start off with a new chief justice on broadcasting news and entertainment directly into a bad foot by dissenting his opinion on his very the home was a popular new idea. If the existing first case? private organisation, the Australian Broadcasting Company, could not afford to maintain the service Vae Victis from a portion of licence fees collected by the So what happened to poor Dulcie? Costs of £164 Postmaster-General, then many people wanted the 12s 11p were awarded against her for justice government to take over. A deputation to three being dispensed, and some two years later, after senior cabinet members (one of whom was Latham) the Attorney-General’s Office commented in in January 1932 carried a petition to the government communication (presumably in a financial context) to take over that privately-run company. According that “Mrs Williams is a person of no substance,” she to the history of the Australian Broadcasting was made bankrupt for non-payment of these costs. Commission This Is the ABC: Despite arguments that ‘everyone was in favour of a public broadcaster,’ or that one should merely The petitioners made up a pageant of read the constitution broadly enough so that it will respectable Melbourne: Frank Tate, former include whatever you want it to include, or that Director of Education; F. W. Eggleston, the legislation had bipartisan support, the simple former state Minister and connoisseur fact is that neither the Australian Broadcasting of public corporations; Ernest Scott and Act nor the act under which Dulcie Williams was other professors; R. G. Menzies, barrister fined was valid law. ABC critics today question the and member of the Victorian parliament; legitimacy of politicians’ being permitted to appoint Mrs. Claude Couchman, president of those who run the largest media organisation in the Australian Women’s National League Australia. But that is not the reason the decision … [and] representatives of Rotary, the was wrong. It was wrong simply because any Australian Natives’ Association, church government involvement in broadcasting clearly missions, the Stock Exchange and the exceeds what is authorised by Section 51(v) of Choral Association. . the Constitution. Unfortunately, R v Brislan was an instance where the rule of law broke down: The legislation to introduce government technically the law said one thing, but conflict of broadcasting could not have been more bipartisan. interest and populist sentiment said another.

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