Miller v TCN Channel Nine Pty Ltd [1986] HCA 60

Miller v TCN Channel Nine Pty Ltd [1986] HCA 60

Section 92 of the Constitution does not protect antecedent activities such as erection or establishment of the station, but does protect maintenance and use of stations for interstate trade, commerce or intercourse. Therefore, ss. 4, 5, 6(1) and 7(1) of the Wireless Telegraphy Act 1905 are invalid only insofar as they relate to unauthorized maintenance or use. The Act's unfettered licensing discretion to restrict maintenance and use infringes s. 92, but prohibitions on establishment or erection are severable and survive. No implied constitutional guarantee extends further than s. 92.

Jurisdiction
Australia
Procedural Posture
Criminal Prosecution / Removed to High Court on Case Stated
Outcome
Questions answered as above; costs to be paid by defendant.
Legal Topics
['section 92 of the Constitution' 'wireless Telegraphy Act 1905' 'implied Constitutional Guarantees' 'freedom of Communication' 'interstate Trade and Commerce' 'licensing Schemes' 'regulatory Powers']
['constitutional Law'] ['section 92 of the Constitution' 'wireless Telegraphy Act 1905' 'implied Constitutional Guarantees' 'freedom of Communication' 'interstate Trade and Commerce' 'licensing Schemes' 'regulatory Powers']

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Procedural Posture

Criminal Prosecution / Removed to High Court on Case Stated

Legal Issues

  1. 1 ["Does s. 92 of the Constitution prevent application of certain sections of the Wireless Telegraphy Act 1905 to the defendant's actions?" 'Does any implied constitutional guarantee prevent application of those sections?' 'Are prohibitions on establishment, erection, maintenance or use of a station attributable to trade, commerce or intercourse protected by s. 92, or antecedent activities not protected?' "Is the Minister's discretion under the Act so unfettered as to invalidate the regulatory scheme under s. 92?"]

Ratio Decidendi

Section 92 of the Constitution does not protect antecedent activities such as erection or establishment of the station, but does protect maintenance and use of stations for interstate trade, commerce or intercourse. Therefore, ss. 4, 5, 6(1) and 7(1) of the Wireless Telegraphy Act 1905 are invalid only insofar as they relate to unauthorized maintenance or use. The Act's unfettered licensing discretion to restrict maintenance and use infringes s. 92, but prohibitions on establishment or erection are severable and survive. No implied constitutional guarantee extends further than s. 92.

Court Disposition

Questions answered as above; costs to be paid by defendant.

Orders

  • ['Answer to Question 1: Yes, but only in so far as those sections relate to the use or maintenance of the station or appliance.' 'Answer to Question 2: No.' 'Order that costs of proceedings in this Court be paid by the defendant.']