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Jones v Commonwealth (No 2) [1965] HCA 6; (1965) 112 CLR 206 (3 February 1965)

CATCHWORDS

Constitutional Law (Cth) - Broadcasting and Television - Preparation and provision of programmes - Whether law with respect to "postal, telegraphic, telephonic and other like services" - The Constitution (63 & 64 Vict. c. 12), s. 51 (v.), (xxxix.) - Broadcasting and Television Act 1942-1962 (Cth), Pt III, esp. ss. 59 (2), 60, 67.

HEARING

DECISION

2. An examination of the detailed provisions of the Town and Country Planning Act 1961 and of the Melbourne and Metropolitan Board of Works Interim Development Order 1961 convinces me that the greatest consequence of them is that the land authorized to be acquired might at some time in the future be put to any one of a number of public uses of which, perhaps, that of a public park is the most likely. But it may never be a public park and indeed may not necessarily ever have any other use than that to which it is presently put. All that can certainly be said of it is that so long as the statue and the Interim Development Order remain on foot in their present form, the present use of the land may not be altered inconsistently with its possible use in the future as public open space. This is the sense, and the only sense, in which it is "reserved" for any purpose. In my opinion, neither the terms of the statute or of the Interim Development Order nor their consequences in relation to this land, satisfy the word "reserved" in s. 6 (2) of the Lands Acquisition Act 1955-1957. There it refers, in my opinion, to one of the methods by which land acquires the quality of a public park, in esse. (at p218)

3. I agree with his Honour that the Broadcasting and Television Act 1942-1962, in so far as it incorporates the Australian Broadcasting Commission and authorizes it to prepare and to obtain programmes for broadcasting or for televising and to use apparatus provided for that purpose by the Postmaster-General, is a law with respect to telephonic services within the meaning of s. 51 (v.) of the Constitution. This is so, in my opinion, even on the footing that "telephonic service" in that paragraph is confined to signifying the provision on a systematic basis of the means of telephonic communication. It seems to me that to conclude that the Australian Broadcasting Commission in providing and presenting its programmes at the microphone or before the television cameras does not provide a telephonic service, does not deny that the Broadcasting and Television Act is a law with respect to the telephonic service by means of which such programmes are intended to be communicated. This view supports enough of the Broadcasting and Television Act to make the purpose of the acquisition a public purpose within the meaning of the Lands Acquisition Act. (at p218)

4. But for myself I would wish to say that I do not regard "telephonic and telegraphic services", within the meaning of s. 51 (v.), as confined to the systematic provision of the means of telephonic or telegraphic communication. The basic concept of telephony is communication at a distance by sound, the means of bridging the distance not being of the essence of the concept. To communicate for reception anything that falls within the wide and comprehensive description of a message from a distance on a systematic basis is, in my opinion, to provide a telephonic service: and the like is true of telegraphy. The time service now provided by the Postmaster-General is, in my opinion, a telephonic service and would be none the less such if provided by a private person using the facilities of the Postmaster-General to transmit the information. The telephonic and telegraphic services referred to in s. 51 (v.) are not confined to the telephonic and telegraphic services conducted at the time of Federation, nor to services which are like them. They do not form the genus. What the constitutional provision embraces is the organized communication of messages from a distance, as well as the communication of messages by an organized means from a distance. (at p219)

5. Whilst the precise decision in Brislan's Case [1935] HCA 78; (1935) 54 CLR 262 was of a limited nature, I do not think that this demurrer can be overruled without departing in a substantial way from the reasoning of the majority in that case and adopting to a significant degree the reasoning of the dissenting judgment. However, accepting as I do his Honour's reasons as sufficient for the allowance of this demurrer, I do not further pursue my own view of the extent of the constitutional power. (at p219)

MCTIERNAN J. The plaintiff attacks the validity of the notice of acquisition published in the Government Gazette dated 15th October 1963 on the ground that the purpose which it specifies as the purpose for which the land is acquired is not a "public purpose" within the meaning of the Lands Acquisition Act 1955- 1957 (Cth). The purpose stated in the notice is "the provision of broadcasting and television studios and offices for the Australian Broadcasting Commission in accordance with the Broadcasting and Television Act 1942-1962". The Lands Acquisition Act in s. 5 (1) defines "public purpose" as "a purpose in respect of which the Parliament has power to make laws, and in relation to land in a Territory of the Commonwealth includes any purpose in relation to that Territory". It is my view that the words in the notice purporting to express the public purpose required by s. 10 (3) of the Lands Acquisition Act do in fact express a purpose. The test is laid down by the Chief Justice in Jones v. The Commonwealth [1963] HCA 43; (1963) 109 CLR 475 : "I do not regard a corporation as a purpose within the meaning of this statute. What it does may afford purposes, what it desires to do may afford purposes, what it is authorized to do may afford purposes, but that is not the same thing as the corporation itself" (1963) 109 CLR, at p 483. The statement in the notice here under consideration clearly indicates that the Commonwealth of Australia desires to acquire the land so that it may erect broadcasting and television studios and offices pursuant to the Broadcasting and Television Act. But does the purpose constitute a "public purpose" within the meaning of s. 6 (1) of the Lands Acquisition Act? The purpose is limited in its terms to the performance of certain functions which are authorized by the Broadcasting and Television Act, so the issue is whether those provisions of that Act relating to the provision of broadcasting and television studios and offices are within the constitutional power of the Federal Parliament. However, it is clear that if those provisions are in fact intra vires, the purpose expressed in the notice of acquisition published in the said Government Gazette is a "public purpose" within the meaning of the Lands Acquisition Act. (at p220)

2. It is further contended by the plaintiff that the land the subject-matter of this action and in respect of which the notice was given is "dedicated or reserved . . . as a public park or otherwise for the purposes of public recreation" within the meaning of s. 6 (2) of the Lands Acquisition Act, which prohibits the Commonwealth from acquiring such land. The land is subject to the Melbourne Metropolitan Board of Works Interim Development Order 1961 made pursuant to the Town and Country Planning Act 1961 (Vict.). The land falls under the operation of Pt III of the Order. Part III is headed "Reserved Land". Clause 32 (1) of the Order declares the land to be "deemed to be reserved for the purpose or purposes set forth", in the appropriate table. The purpose in this case is "Open Space - public proposed". Clause 33 then allows the land so "reserved" pursuant to cl. 32 to be used (a) for the purpose for which it was used immediately before the date on which the Order came into operation, (b) for such other purpose as the responsible authority permits and (c) for the purpose for which the land is deemed to be reserved. Further, cll. 35 and 36 prohibit without the consent of the responsible authority the removal or damaging of trees on the land, and demolition, damaging, construction, erection, extension, or alteration of buildings or works on the land. The land is to be in no way spoiled or wasted so as to destroy, affect or impair its usefulness for the purpose or purposes for which it is reserved. It is my view that the designation "open space - . . . public" falls within the scope of the words "public park". A park is a piece of land either kept in its natural state or ornamentally laid out for the purpose of public recreation. The two distinctive features of this term are that the land has no buildings erected upon it and remains open space, and that it is available for use by the public. (at p221)

3. Further, I think that the effect of the restrictions laid on the use of the land by the Order is to "reserve" the land. To reserve a thing, real or personal, is to set it aside, to appropriate it, or to give it up to some special purpose. The Order in its terms prohibits the use of the land for any purpose other than its existing use and the purposes for which it is reserved. Seeing that one of the essential aspects of an appropriation or a setting aside is the withholding of the thing appropriated from any use other than the ones designated it seems clear that the Order in substance does constitute a reservation of the land. It is not important that the existing use of the land can be continued. The fact that there are two or more reserved purposes does not make the reservation for the public purpose of no effect. (at p221)

4. However, it is argued that for two reasons the effect of the Order is not to make a reservation within the meaning of the Lands Acquisition Act. The first is that in the scheme of the Town and Country Planning Act, interim development orders are merely a kind of temporary injunction designed to regulate the use of land pending the making of a final planning order and will be superseded by the making of the final planning order in which the reservation may not be preserved. In my view, this feature of the Order does not make its effect any the less a reservation. Even though the Order may not be final nevertheless it effectually reserves while it is in force, and there is nothing in s. 6 (2) of the Lands Acquisition Act to indicate that the reservation contemplated must be permanent and irrevocable. Indeed, as was pointed out by Mr. Aickin many other forms of reservation are subject to alteration and revocation. The second objection is that s. 6 (2) contemplates that if the land reserved is to be protected from acquisition by the Commonwealth it must at the time of acquisition be used as a public park. The land the subject-matter of this action was not at the time of the service of the notice being used as a public park but as a private garden which was its use at the time of the commencement of the operation of the Order. According to the language of s. 6 (2) land is protected from acquisition if it is "reserved . . . as a public park". It is said that the word "as" means in this context that the land has already passed into use as a public park, not merely set aside for use as such in the future; and, that if the provision was intended to protect the land in the latter situation the words "reserved for a public park" would have been used. I think that this is too restrictive a construction to do justice to the provision. The words "reserved as" mean that the purpose of the reservation is that the land is a park or to be used as such because of an effective reservation. The expression "reserved . . . as a public park" has not a technical meaning. It should be construed according to the ordinary meaning of the words. The word "reserved" is concerned both with preserving the current use of the land as a park and to save the land for use as a park if reserved for such a use. I think that the expression upon its proper construction covers the situation not only where land is at present being used for a park being the subject of a reservation for that purpose but also where land is the subject of a reservation protecting it for use as a park in the future. I reach the conclusion that the land is "reserved . . . as a public park" within the meaning of s. 6 (2) of the Lands Acquisition Act and is thus protected from acquisition by the Commonwealth because of the operation of the Order. (at p222)

5. The view which I take of the objection raised under s. 6 (2) of the Lands Acquisition Act renders it unnecessary for me to add anything further to show that the plaintiff is entitled to a declaration that the acquisition is invalid. However, I would like to express briefly my opinion that the transmission of messages, that is, sound and pictures, to listeners and viewers by television is a "like" service within the meaning of s. 51 (v.) of the Constitution. I think that the reasoning of the majority in R. v. Brislan; Ex parte Williams [1935] HCA 78; [1935] HCA 78; (1935) 54 CLR 262 is adequate to support this conclusion. As to ss. 59 and 60 of the Broadcasting and Television Act, I think that it is an erroneously narrow view of what is incidental to the conduct of a television service to hold that these sections travel beyond its well recognized functions. Like every other power conferred upon the Parliament by s. 51 of the Constitution, par. (v.) of that section must be given an ample construction consistent with the subject-matter in respect of every service within its scope. So far as broadcasting and television are concerned, it is not an exhaustive description of either service to say that it consists only of the transmission of messages handed to it. The very description "broadcasting and television service" implies something more than the mere provision of a method of communication. Proper incidents of such services are the preparation of programmes for broadcasting to inform and entertain the public. It is incidental, therefore, to the conduct of the service not only to provide and compile adequate and comprehensive programmes for transmission but also to take appropriate measures to maintain a supply of programmes for transmission, and to inform and interest the public in such activities. As I understand the language of the sections in question, they are laws directed to purposes covered by par. (v.) so far as it relates to broadcasting and television services. For these reasons I hold that ss. 59 and 60 fall within s. 51 (v.) of the Constitution. (at p223)

6. However because in my view the Commonwealth has attempted an acquisition prohibited by s. 6 (2) of the Lands Acquisition Act I would overrule the demurrer. (at p223)

KITTO J. Demurrer by the defendants to a statement of claim seeking a declaration of invalidity in respect of a purported acquisition of land by the Commonwealth by notice of acquisition under the Lands Acquisition Act 1955-1957 (Cth). (at p223)

2. Two of the plaintiff's contentions in support of the statement of claim may be put aside at once as clearly untenable. One was based upon s. 10 (1) of the Lands Acquisition Act. By that provision it is made a condition precedent to a recommendation by the Minister to the Governor-General for the acquisition of land by the Commonwealth by compulsory process that either a period of twenty-eight days after the service of a notice to treat shall have expired or the Minister shall have given a certificate under s. 9 (8) that there are special reasons why s. 9 shall not apply. The notice of acquisition which the plaintiff challenges was published in the Gazette on 15th October 1963. There had been no notice to treat, but on 3rd April 1963 the Minister had given in respect of the subject land a certificate that there were special reasons why s. 9 should not apply. The plaintiff contends that this certificate was presumably given in relation to the then proposed steps for acquisition which in the event proved abortice, and that it cannot be relied upon in connexion with the later acquisition procedure which is in question in this demurrer. A sufficient answer is that the second notice of acquisition represents a second attempt to effect the very acquisition for the purposes of which the Minister gave his certificate. (at p224)

3. A second contention was that the notice of acquisition did not declare any purpose with the requisite degree of definition. What the notice declared to be the public purpose of the acquisition was "the provision of broadcasting and television studios and offices for the Australian Broadcasting Commission in accordance with the Broadcasting and Television Act 1942-1962". The Commission is required by s. 63 of the latter Act to provide such studios and offices as are necessary for the proper performance of its powers and functions under the Act, and the powers and functions which the Act in terms confers upon the Commission are such as to require broadcasting and television studios and offices. Under s. 52 of the Lands Acquisition Act, land which is vested in the Commonwealth may be transferred to and vested in the Commission as being a corporation incorporated by a law of the Commonwealth; so that if the plaintiff's land be validly acquired by the Commonwealth it may be made to serve the purpose of the provision, in accordance with the Broadcasting and Television Act, of studios and offices for the performance of its powers and functions. That is the purpose which the notice of acquisition declares. I do not see how the purpose could have been made plainer, unless, perhaps, by transposing the words "in accordance with the Broadcasting and Television Act 1942-1962" so as to place them between "the provision" and "of broadcasting and television studios and offices for the Australian Broadcasting Commission". But even as it is the notice is quite specific in its statement of purpose. (at p224)

4. A third contention relied upon is the prohibition, in s. 6 (2), of the acquisition of land which, under the laws of a State, is dedicated or reserved, or is vested in trustees, as a public park. In my opinion the terms of this prohibition apply only where some act in the law has been done - being either a dedication, a reservation or a vesting in trustees - by which the public has acquired rights of user of a nature satisfying the concept of a park. In relation to the plaintiff's land now in question the public has acquired no rights of user of any kind. An interim development order has been made under the Town and Country Planning Act 1961 (Vict.) declaring the land to be "deemed to be reserved" for the purpose of "open space - public proposed". Such an order restricts the uses to which the subject land may be put, and it has an effect as regards compensation: see s. 17; but, as the word "proposed" in the order appears designed to recognize, its legal effect does not extend to making the land available for any form of use by the public. In my opinion the plaintiff's reliance upon the order as attracting s. 6 (2) is ill-founded. (at p225)

5. Then it is said the the purported acquisition was invalid because for one or other of two reasons the purpose declared in the notice of acquisition is not a "public purpose" in the defined sense, namely a purpose in respect of which the Parliament has power to make laws. The first reason suggested is that the Broadcasting and Television Act by some of its provisions purports to give the Commission powers and functions so far removed from broadcasting and television that those provisions, at least, must be beyond constitutional power, and that therefore an acquisition for offices for the Commission (as well as studios) is an acquisition for purposes more extensive than those with respect to which the Parliament has power to make laws. The provisions referred to are in s. 59 (2) (b) (the provision of concerts and entertainments not necessarily broadcast or televised in whole or in part), s. 60 (the publication of periodicals and other literary matter), and s. 67 (the establishment of groups of musicians and their utilization in order to confer the greatest benefit on broadcasting or television). In my opinion this argument too is misconceived, even on the assumption that the provisions mentioned are invalid. The natural meaning of the declaration of purpose in the notice of acquisition is that the Commission is to be provided with studios and offices for what s. 63 of its Act describes as "the proper performance of its powers and functions under this Act". The performance of powers or functions not validly conferred is not within this description. It is nothing to the point, even if it be true, that the studios or offices, when provided, may turn out at some time to be used so as to serve ultra vires purposes. Only the declared purpose of the acquisition is required to be a purpose in respect of which the Parliament has power to make laws, and the declared purpose in the present instance is such a purpose. (at p225)

6. The other suggested reason is that the provisions of the Broadcasting and Television Act creating the powers and functions of the Australian Broadcasting Commission, and indeed the provisions incorporating the Commission itself and providing for its constitution, are, as a whole, unsupported by any head of Commonwealth legislative power, and that therefore the provision of studios and offices for the performance of the Commission's powers and functions cannot be a purpose in respect of which the Parliament has power to make laws. To meet this suggestion the defendants rely upon s. 51 (v.) of the Constitution enabling the Parliament to make laws with respect to "Postal, telegraphic, telephonic and other like services", and upon the case of R. v. Brislan; Ex parte Williams [1935] HCA 78; (1935) 54 CLR 262 which establishes that laws with respect to radio broadcasting are within this head of power. (at p226)

7. The plaintiff's argument does not question the decision in Brislan's Case [1935] HCA 78; (1935) 54 CLR 262 and concedes that the differences between broadcasting and television are not significant upon the question of constitutional power. It must therefore accept as valid so much of the Broadcasting and Television Act as relates to the functions of the Postmaster-General in regard to the provision and operation of transmitting stations and technical equipment: ss. 73-76. But it denies that under s. 51 (v.) of the Constitution the Parliament may provide for participation by the Commonwealth or a Commonwealth corporation in the use (at the transmitting end) of the service created by the provision and operation of such stations and equipment, and a fortiori it denies that under that head the Parliament may empower a corporation it creates to engage in the vast range of activities which are involved in preparing programmes and presenting them before the transmitting apparatus. (at p226)

8. I have come to the conclusion that this argument should not prevail. Brislan's Case [1935] HCA 78; (1935) 54 CLR 262 shows that a radio broadcasting system (and it follows that a television broadcasting system) is a telegraphic, telephonic or other like service, being an organized method provided as a means by which a person may transmit communications, receivable through the ear (and, in the case of television, the eye), for reception by such other persons as put themselves in a position to receive it. Since the decision in that case it cannot be denied, I think, that the power under s. 51 (v.) is not confined to providing for the establishment, maintenance and operation of telegraphic, telephonic or other like services, but extends to the choice of the persons who may make use of such a service either to send or to receive communications, to the conditions upon which persons may so use it, and to every aspect of the use and advantage they may have from it. No narrower view would be consistent with the broad understanding, upon which Brislan's Case [1935] HCA 78; (1935) 54 CLR 262 insists, of the grant of power in s. 51 (v.). It is settled that a law creating a corporation to engage in a specified form of activity is a law with respect to that form of activity: Australian National Airways Pty. Ltd. v. The Commonwealth [1945] HCA 41; (1945) 71 CLR 29 Accordingly a law creating a corporation to engage in the sending of communications by means of a telegraphic, telephonic or other like service is a law with respect to the activity of sending such communications; and since, as is clear from the reasoning of Brislan's Case (1), a law with respect to the sending of communications by means of such a service is a law with respect to such a service, the law creating the corporation must, I think, be held to be within power. If, for example, a person possessing a receiving instrument connected to a land line telephone service wishes to receive by means of the service a ball-to-ball description of a cricket match, it seems to me to follow from the cases cited that a law which (e.g. by setting up an appropriate corporation) enables him to be supplied by that means with the desired description is a law with respect to the telephone service. Indeed it is so not only because it provides for particular transmissions over the telephone but, regarded from the other end, because it provides for particular receptions and so for an increase of the benefits the recipient may derive from the service. (at p227)

9. The next step necessary for the case seems logically to follow. If, under s. 51 (v.), a corporation may be created with the function of transmitting by a telephonic or other like service some matter specifically desired by a particular user of the service, it can hardly be doubted since Brislan's Case [1935] HCA 78; (1935) 54 CLR 262 that so may a corporation be created with the function of transmitting, by means of a radio, telephonic or other like service of such a nature that anyone who wishes may become a recipient of the communications transmitted by it, communications which it selects for itself as likely to be of interest to recipients. A law made for this purpose governs the use of the service for transmission, and in consequence the benefits derivable from its use by reception. That is surely enough to make it a law with respect to that service. In the case of the radio broadcasting and television services which the Postmaster-General provides under the Broadcasting and Television Act, the Australian Broadcasting Commission is made the only user of the service at the transmitting end, so that those provisions of the Act which enable it to transmit programmes constitute laws with respect to the only benefit the users at the receiving end can derive from the service. The provisions are therefore, in my opinion, laws with respect to the service. (at p227)

10. The activities involved in preparing and otherwise acquiring programme material are necessarily incidental to the presentation of the programmes before the transmitting apparatus - the presentation which constitutes the use of the service on the part of the Commission, or, in other words, the broadcasting or televising which s. 59 makes obligatory upon the Commission. Accordingly the provisions of the Act which authorize the preparatory activities are, in my opinion, supported, if not by s. 51 (v.) itself, then by s. 51 (xxxix.). (at p228)

11. For these reasons I agree that the demurrer should be upheld. (at p228)

TAYLOR J. In my view the demurrer to the statement of claim should be allowed for the reasons given by my brother Kitto. I agree with his reasons and conclusions and do not wish to add anything. (at p228)

MENZIES J. Since the decision of this Court in Jones v. The Commonwealth [1963] HCA 43; (1963) 109 CLR 475 holding that an earlier notice of compulsory acquisition by the Commonwealth of the plaintiff's land at Ripponlea was inoperative because it did not state a public purpose, another notice dated 15th October 1963 has been published, stating the purpose of the acquisition in the following terms: "the provision of broadcasting and television studios and offices for the Australian Broadcasting Commission in accordance with the Broadcasting and Television Act 1942-1962". Not surprisingly, this notice has also been attacked as failing to state unequivocally the purpose of the acquistion but, with some hesitation, I have come to the conclusion that it does sufficiently state that the land is acquired to provide broadcasting and television studios and offices for the Australian Broadcasting Commission for the performance of its functions under the Broadcasting and Television Act 1942-1962 (which I shall call "the Act"). It is on the basis that this is what the notice means that I will consider the validity of a compulsory acquisition for the purposes so stated. (at p228)

2. A further objection of a technical nature was taken, viz. that there having been no notice to treat, as required by s. 9 (1) of the Lands Acquisition Act, and that it not appearing that the Minister had certified that there were special reasons why s. 9 should not apply, the notice was inoperative. There was, however, such a certificate under s. 9 (8) given by the Minister on 3rd April 1963 in relation to the acquisition of the land. Furthermore, s. 10 (6) of the Lands Acquisition Act provides: "An authorization by the Governor-General under sub-section (2) of this section shall not be invalidated or called in question by reason of any failure to comply with any of the provisions of this Act." Accordingly, this objection ought not to be sustained. (at p228)

3. There remain two questions: first, is the purpose stated in the notice a "public purpose"? - that is, a purpose in respect of which the Parliament has power to make laws; and second, was the land being taken by compulsory process land which under the laws of the State of Victoria is reserved as a public park or otherwise "for the purposes of public recreation", so as to be protected from compulsory acquisition by s. 6 (2) of the Lands Acquisition Act? I will dispose of the second question first. (at p229)

4. I have come to the conclusion that the plaintiff's endeavour to prove that the land in question could not be compulsorily acquired, because of the provisions of s. 6 (2) of the Lands Acquisition Act, has failed. The mere zoning of the land as "Open Space - public proposed", as it has been zoned in the Interim Development Order made under the Town and Country Planning Act, does not reserve it as a public park or otherwise for the purposes of public recreation as this description is used in s. 6 (2) of the Lands Acquisition Act. Notwithstanding such a zoning, the land may continue to be used permanently as part of the garden of a private residence, which is what it now is. (at p229)

5. I come now to the difficult and important problems raised by the basic attack upon the acquisition. In contending that there was a constitutional objection to the acquisition, the plaintiff did not contend that s. 51 (v.) of the Constitution did not give the Parliament of the Commonwealth power to make laws with respect to broadcasting and television services. Such a contention, if made, would of course have been in conflict with R. v. Brislan; Ex parte Williams [1935] HCA 78; (1935) 54 CLR 262, but the plaintiff did not question this decision. The argument on her behalf was rather that the performance by the Australian Broadcasting Commission of the functions given to it by the Act constitutes something other than the provision of a broadcasting and television service in any relevant sense. It was claimed that the main function of the Commission under the Act is to provide programmes for transmission by broadcasting and televising, and the plaintiff's argument was that the Act, in so authorizing the Commission, is ultra vires because the provision of such programmes is something not like postal, telegraphic and telephonic services, whether the common likeness between these services is to be found in each being a means of communication or in the use of like means for the purpose of communicating. A secondary and alternative argument was that, even if the provision of programmes could be authorized, nevertheless, as the Parliament had no power to authorize the Commission to do some of the particular things which the Act purports to authorize it to do (for example, arrange for the holding of concerts - not to be broadcast or televised - in co-operation with non-commercial institutions, s. 59 (2)(b); or, publish literary matter, s. 60; or, to establish orchestras, choirs and bands, s. 67), the general purpose stated in the notice went beyond the statement of a purpose within the law-making capacity of Parliament. (at p230)

6. Section 51 (v.) of the Constitution gives the Parliament power to make laws with respect to "postal, telegraphic, telephonic and other like services". In Brislan's Case [1935] HCA 78; (1935) 54 CLR 262 it was decided that this paragraph confers on the Parliament power to legislate with respect to radio broadcasting, and an appeal against a conviction upon an information for having an unlicensed wireless receiving set in contravention of the Wireless Telegraphy Act was dismissed. Latham C.J. said: "The common characteristic of postal, telegraphic and telephonic services, which is relevant in this connexion is, in my opinion, to be found in the function which they perform. They are, each of them, communication services. This is also the characteristic of a broadcasting service in all its forms, which is therefore, in my opinion, a "like service" within the meaning of s. 51 (v.) of the Constitution. If a new form of communication should be discovered, it too might be made the subject of legislation as a "like service" (1935) 54 CLR, at p 280 Rich J and Evatt J considered that wireless broadcasting is a telephonic service. Starke J. said: "It was argued that the likeness of a service to those enumerated depends upon the character of the service; it must be a service, it was said, under the control of the Government, and it must provide for the transmission and reception of communications between citizens and be private in its nature. But in my opinion the likeness of the service depends upon no such considerations, but upon the likeness of the means by which the service is performed. Thus there is no material distinction between a telegraphic and a telephonic service (Attorney-General v. Edison Telephone Co. of London (1880) 6 QBD 244); in both cases communication takes place by means of a wire acted upon by electricity": (1935) 54 CLR, at pp 285, 286. McTiernan J. said: "Since the decision of the Judicial Committee in In re Regulation and Control of Radio Communication in Canada (1932) AC 304 the view must be accepted that broadcasting as established and regulated by the regulations, made pursuant to the Wireless Telegraphy Act 1905- 1919, may be classed with telegraphic and telephonic services. It follows from this decision that s. 51 (v.) of the Constitution upon its true interpretation authorizes Parliament to legislate with respect to the service of broadcasting": (1935) 54 CLR, at p 294. In dissenting, Dixon J. took a narrower view of the power conferred by s. 51 (v.), confining it to services providing inter-communication. (at p231)

7. It is apparent, therefore, that there were different reasons given by the Justices who constituted the majority for upholding the law. For instance, the Chief Justice rejected likeness of the means of communication as the test of a like service within s. 51 (v.), whereas Starke J. insisted that the means of communication adopted was the decisive likeness. Furthermore, the principal reason why Rich J. and Evatt J. treated broadcasting as a telephonic service was because of the employment of "electrical means of transmission of speech and sound". Similarly, McTiernan J. classes broadcasting with telegraphic and telephonic services. It appears, therefore, that four of the five Justices constituting the majority regarded the means whereby broadcasting is performed as the feature bringing it within s. 51 (v.), either as a telegraphic or telephonic service, or a like service, while Latham C.J. regarded broadcasting as a service like to postal, telegraphic and telephonic services because each is a form of communication. (at p231)

8. If, on the one hand, broadcasting, whether in the form of wireless or television, is within s. 51 (v.) because broadcasting is telegraphic or telephonic in character by reason of the means whereby it is achieved, then, so it was argued, it is the transmission of the broadcast that is the service to which s. 51 (v.) is relevant, not the preparation of what is to be broadcast. If, on the other hand, a broadcasting service is like a postal, telegraphic or telephonic service because each is a form of communication, again a broadcasting service is within s. 51 (v.) because of the transmission of communications, not by reason of the preparation of communications for transmission. In either event, therefore, so the argument ran, the preparation of programmes to be broadcast is not providing a telegraphic or telephonic service or a service like postal, telegraphic or telephonic services. (at p231)

9. The starting point for this line of reasoning depends upon it appearing that the function - or, at least, the principal function - of the Australian Broadcasting Commission is to prepare and present programmes, not to transmit them. By the Wireless Telegraphy Act the Minister administering the Act, namely the Postmaster-General, is given the exclusive privilege of erecting or using stations to transmit messages by wireless telegraphy from or within Australia, and the Minister is authorized to grant such licences as he may think fit to other persons. The unauthorized transmission of messages by wireless telegraphy is forbidden. This legislation is unquestionably valid and, of course, licences may be granted upon conditions relating to what may or may not be transmitted. (at p232)

10. The scheme of the Act is not that the Commission is licensed to transmit programmes, but that the Postmaster-General is required to provide and operate transmission stations and equipment for the purposes of the broadcasting and televising of programmes of the Commission, ss. 73-76. The principal function of the Commission is that described in s. 59 (1) of the Act as follows: "Subject to this Act, the Commission shall provide, and shall broadcast or televise from transmitting stations made available by the Postmaster-General, adequate and comprehensive programmes and shall take in the interests of the community all such measures as, in the opinion of the Commission, are conducive to the full development of suitable broadcasting and television programmes." Other sections, such as ss. 66, 114, 115, 116 and 118, show how the programmes of the Commission are the concern of the Act. Section 63 of the Act is as follows: " - (1) The Commission shall provide such studios, offices and other accommodation as are necessary for the proper performance of its powers and functions under this Act, and such accommodation in relation to the studios as the Postmaster-General requires for the proper carrying out of the technical services to be provided by the Postmaster-General. (2) The location of any studios to be provided by the Commission in pursuance of this section shall be subject to the approval of the Postmaster-General." These legislative provisions leave me in no doubt that the primary function of the Commission is to provide and present broadcasting and television programmes for transmission by the Postmaster-General. It is true that, according to s. 59, the broadcasting and televising, and not merely the provision of programmes, is to be done by the Commission but, in the context, this means no more than that the presentation of programmes is the responsibility of the Commission, leaving the transmission of the programmes as the responsibility of the Postmaster-General under ss. 73 and 74. (at p232)

11. The central question is, then, whether Parliament has constitutional power to make a law authorizing the Commission to provide and to broadcast and televise programmes - having nothing to do with matters otherwise within Commonwealth power - for transmission by the Postmaster-General. The main argument for an affirmative answer to this question stressed the point that, as commonly understood, a broadcasting or television service comprehends the provision of programmes, but the question here is not simply what is within the common understanding of a broadcasting or television service. Brislan's Case [1935] HCA 78; (1935) 54 CLR 262 does not justify reading s. 51 (v.) of the Constitution as if it were written either "postal, telegraphic, telephonic, broadcasting, television, and other like services" or as "postal, telegraphic, telephonic, and other like services including broadcasting and television services" and then, upon either construction, simply enquiring, what is the ordinary meaning of the words "broadcasting service" and "television service"? Brislan's Case [1935] HCA 78; (1935) 54 C.L.R. 262, as I have shown, establishes that broadcasting is either a telegraphic or telephonic service, or a service like postal, telegraphic and telephonic services, because of features that do not depend upon the common understanding of what those who provide a broadcasting or television service do, for it is simply as a service which is the means of communication or a particular way of communicating that the power of Parliament extends to broadcasting and television services. Perhaps the simplest way of testing the matter is to assume that broadcasting and television services are within s. 51 (v.) of the Constitution because each is a telephonic service (as at least three Justices in Brislan's Case [1935] HCA 78; (1935) 54 CLR 262 found broadcasting to be) and then to ask whether the Commission provides a telephonic service. To this question I cannot give an affirmative reply; nor can I say that the Commission provides a service like a telephonic service. (at p233)

12. In my opinion, the main argument for the plaintiff is correct and, because I accept this argument, it is not necessary for me to examine the particular provisions of the Act which it was argued were outside power, even if authority to provide programmes were held to be within power. Nor need I decide what would be the consequence of finding some one or more of this group of provisions to be outside power. (at p233)

13. In my opinion, the demurrer should be overruled. (at p233)

WINDEYER J. In my opinion this demurrer should be allowed. (at p233)

2. The notice of acquisition now relied upon is, I consider, a valid notice sufficiently expressing the purpose for which the land is being taken. (at p233)

3. Two matters that seem to me to require a more full consideration are first, the effect of s. 6 (2) of the Lands Acquisition Act 1955- 1957; secondly, whether the purposes for which the land is being taken are purposes in respect of which the Commonwealth Parliament has power to make laws within the meaning of s. 51 (xxxi.) of the Constitution. (at p234)

4. The first matter raises no question of constitutional power. The Commonwealth Parliament may make a law for the acquisition of any form of property, including a public park, for any purpose in respect of which it has power to make laws. Such a law must provide just terms for the acquisition, a consideration which could present some practical difficulties in the case of the acquisition of a park. But we are not concerned with what the Parliament might do by a special Act, but with what it has empowered the Executive to do under the general provisions of the Lands Acquisition Act. And s. 6 (2) of that Act provides that "The Commonwealth shall not acquire either by agreement or by compulsory process land which, under the laws of a State or Territory of the Commonwealth is dedicated or reserved, or is vested in trustees, as a public park or otherwise for the purposes of public recreation." (at p234)

5. The plaintiff was at the date of the notice of acquisition the proprietor of the land for an estate in fee simple. It is not suggested in the statement of claim that she had dedicated it by way of charitable trust as a public park or for public recreation or that the public had any rights of entry or of user. Therefore the land, which we were told is in fact the private garden of the plaintiff, was neither dedicated nor vested in trustees as a park or otherwise for the purposes of public recreation. But it is said that, as a result of the operation of the Melbourne and Metropolitan Board of Works Interim Development Order 1961, it was "reserved as park". This order was made pursuant to the Town and Country Planning Act 1961 (Vict.). That Act repeals and consolidates earlier legislation on the same subject. For present purposes its importance is that, in accordance with procedures that are now fairly common in this branch of the law, it authorizes the preparation of planning schemes which may make provision for various matters stated: see s. 9 and the Third Schedule. One of these matters is "Land to be reserved for public purposes". And, again in accordance with procedures that are now familiar, the Act authorizes the making of an interim development order which may regulate, restrict, restrain or prohibit the use or development of any land to which a planning scheme relates. Any provision in an interim development order whereby any land is expressed to be reserved or to be deemed to be reserved for any public purpose is a valid exercise of the power to regulate, restrict, restrain or prohibit the use or development of such land: s. 17. There are in the Act other references to land which is "reserved or proposed to be reserved for public purposes under a planning scheme": see e.g. ss. 40 (2), 42 (1) (c), 42 (3), 42 (5). Interim Development Order 1961 has, under a heading "Reserved Land", a clause providing that reserved land as shown in the planning map is "deemed to be reserved for the purpose stated" in the order. The purpose for which the subject land is thus "reserved" is expressed as "Open Space - public proposed". This designation - and I use that word as a neutral term and because it is often used in writings on town and country planning law - indicates that it is intended that the land shall, if the scheme as proposed be approved and carried into effect, become an open space to which the public will have rights of access. It is to be contrasted with the designation "Open Space - public existing", which refers to presently existing parks and reserves to which the public have access. I am prepared to assume that, in this context, a public open space is, according to the common terminology of town planning, a place to which the public have access as of right for purposes of recreation. But is land that in the Interim Order is thus "reserved" land that is "dedicated or reserved" as a public park within the meaning of the Lands Acquisition Act s. 6 (2)? I think not. (at p235)

6. An interim order under the Town and Country Planning Act operates pending the final adoption of a scheme and its coming into effect. It prevents land that it is proposed shall be devoted to a particular purpose being used in the meantime in a way that will frustrate, or make more difficult or more costly, its ultimate application to that purpose. To speak of such land as being "reserved" is a natural enough use of a word that in Australian land systems has often carried a sense of futurity, of the preservation of an existing status so that the needs of the future may be met. I appreciate that. I appreciate too the social importance of providing and preserving adequate open spaces in urban areas that have a growing density of population. That is a need that has not always been met in subdivisions and housing schemes in the past. It may well seem to many people to be regrettable that the Government should override the plans another public authority has made to remedy past mistakes and to anticipate future needs. And, from another point of view, it may seem the more unfortunate when restrictions that are the product of those plans have affected the value of land that is taken from a landowner. These considerations may lend some weight to the argument that the exemption from acquisition of land which under the laws of a State is "dedicated or reserved . . . as a public park . . . " should be read as referring inter alia to land "reserved" under town and country planning legislation of the State. Statutes concerning town and country planning, providing for the reservation of land for public purposes were in force in Victoria and elsewhere when, in 1955, s. 6 (2) of the Lands Acquisition Act was passed. But the question for us is only what limit does that provision put upon the Commonwealth's power of acquisition. The Court cannot be concerned with what use the Commonwealth makes of powers that it has. (at p236)

7. The words "dedicated or reserved or vested in trustees", used in collocation in relation to public parks and recreation areas, have a meaning for Australian law that is the result of history and past usage: see Randwick Corporation v. Rutledge [1959] HCA 63; (1959) 102 CLR 54, at pp 70-78 And, although the proposition may seem attractive, I do not think that in interpreting s. 6 (2) the word "reserved" should be separated from its companion "dedicated", and treated as referring not only to the retention by the Crown of Crown land but also to the prevention of the development of private land. The phrase in the Act seems to me to refer to the several ways by which land has become a public park, not to a way in which it may do so. For land to be within the statutory exemption "dedicated or reserved as a public park" it must, I think, be possible to predicate of it that it is a public park: it is not enough that it is possible to predict that it may become one. But the test is not, I think, whether the land is in present use by the public, but rather whether the purpose for which it is held - either by the Crown or by way of charitable trust - is that members of the public may use it as of right for purposes of recreation. I do not think that the test should be narrowly formulated: if private land has been resumed by the Crown or acquired by a public authority for the purpose of making it an open space for public recreation, as for example in conjunction with a slum reclamation project. I think it would be properly described as dedicated or reserved for the purpose, although the demolition of buildings upon it would be necessary before the public could actually use it. But, however it be expressed, the exemption in s. 6 (2) is, in my opinion, of land which can be presently regarded as public land. Land that is presently in private beneficial ownership and to which the public have no right of entry is not I think within the exemption, even if the owner be restricted in his use of it. (at p236)

8. I turn now to the constitutional question. On this I have little to add to what my brother Kitto has said in his judgment which I have had the advantage of reading and in which I generally agree. (at p236)

9. The power of the Commonwealth Parliament to make laws with respect to "postal, telegraphic, telephonic and other like services" means. I take it, postal, telegraphic, telephonic and other services of a like kind. The logical process that it postulates is that of generalization, of aggregation on the basis of likeness. To come within the genus a thing that is not itself a postal, telegraphic or telephonic service must be a service that has the common characteristic on which the genus is based. It seemed to me, therefore, in listening to the argument that little is to be gained by the enumeration of similarities between wireless telegraphy and television. A candidate for inclusion in the genus must be as like, in the relevant sense, unto a postal service as it is unto a telegraphic or telephonic service. I must say that, if it were not for the decision in R. v. Brislan; Ex parte Williams [1935] HCA 78; (1935) 54 CLR 262 I would have thought that the feature which would make a "like service" was an organized system enabling individuals to communicate at a distance one with another and having that as its primary purpose. I would have taken the same view as Dixon J. did in his dissenting judgment in that case. I would not have thought that the provision of a means having as its primary purpose the mass dissemination, either vocally or visually, of material that anyone having the necessary instrument might hear or see was a like service. But the Court decided otherwise in relation to radio broadcasting. That decision I, of course, accept. I do so the more readily because the very nature of the subject-matter makes it appropriate for Commonwealth control regardless of State boundaries. And the decision itself was not questioned before us in this case. It follows I think that the Commonwealth Parliament may provide and control, or authorize a corporation of its creation to provide and control, television stations: it may authorize or forbid others to do so. And it seems to me that it may control or authorize its corporate agency to control the programmes to be shown and, if it desires, to provide them. Once it be conceded that Commonwealth power extends to radio and television broadcasting as like services within s. 51 (v.) the laws that may be made with respect to them are a matter for the Parliament. (at p237)

10. For these reasons I would allow the demurrer. (at p237)

OWEN J. Before stating the facts it is convenient to refer to some of the statutory provisions which it is necessary to consider in deciding the questions that arise. (at p237)

2. Section 6 (1) of the Lands Acquisition Act 1955-1957 empowers the Commonwealth to acquire land "for a public purpose" by compulsory process and, by s. 5 (1), "public purpose" means "a purpose in respect of which the Parliament has power to make laws . . . ". Section 6 (2), however, forbids the acquisition either by agreement or by compulsory process of land which "under the laws of a State . . . is dedicated or reserved, or is vested in trustees, as a public park or otherwise for the purposes of public recreation". Section 9 (1) provides that the Minister shall not recommend to the Governor-General the acquisition of land by compulsory process unless a notice to treat has first been served upon the owner of the land, but, by s. 9 (8), the section is not to apply in a case in which the Minister certifies that there are special reasons why it should not apply. Under s. 10 (2) the Governor-General may, on the recommendation of the Minister, authorize the acquisition of land by compulsory process for a public purpose approved by the Governor-General. In such case the Minister may cause to be published in the Gazette notice of the authorization and, in the notice, declare that the land is acquired under the Act for the public purpose approved by the Governor-General (s. 10 (3)). Thereupon the land vests in the Commonwealth (s. 10 (4)) and the interest of every person in the land is converted into a right to compensation (s. 11 (1)). (at p238)

3. Section 30 of the Broadcasting and Television Act 1942-1962 sets up the Australian Broadcasting Commission as a body corporate. Its functions are to provide and to broadcast or televise from transmitting stations made available by the Postmaster-General, adequate and comprehensive programmes and to take, in the interests of the community, all such measures as, in its opinion, are conducive to the full development of suitable broadcasting and television programmes (s. 59 (1)). Where it considers it necessary for the proper carrying out of its objects or for any purpose incidental thereto, the Commission may make arrangements for the holding of, or may organize or subsidize, any public concert or other public entertainment provided the whole or part of that concert or entertainment is broadcast or televised or the concert or entertainment is held in co-operation with an educational, religious, or other non-commercial institution and no charge for admission is made by the Commission (s. 59 (2)). For the purpose of the exercise of its powers and functions under the Act, the Commission is empowered to compile, prepare, issue, circulate and distribute, whether gratis or otherwise, in such manner as it thinks fit, such papers, magazines, periodicals, books, pamphlets, circulars and other literary matter as it thinks fit (s. 60). Section 63 (1) requires it to provide such studios, offices and other accommodation as are necessary for the proper performance of its powers and functions and such accommodation in relation to the studios as the Postmaster-General requires for the proper carrying out by him of the technical services which he is to provide. Section 66 directs the Commission to broadcast daily regular news sessions and to employ an adequate staff to collect the material for those broadcasts. And, by s. 67, it is to "endeavour to establish and utilize, in such manner as it thinks desirable in order to confer the greatest benefit on broadcasting or television, groups of musicians for the rendition of orchestral, choral and band music of high quality". Under Div. 5 of the Act the Postmaster-General is required to provide and operate transmitting stations and the necessary equipment for the purposes of transmitting the Commission's broadcasting and television programmes. (at p239)

4. An examination of these provisions shows that the function of the Postmaster-General is to provide the apparatus by means of which broadcast or television programmes may be transmitted to those members of the public who are equipped to receive them, while the Broadcasting Commission's function is to prepare the programmes for transmission and transmit them. (at p239)

5. The facts are that the plaintiff was the owner of a parcel of land at Ripponlea in Victoria. In the Commonwealth Government Gazette of 15th October 1963 a notice was published that the Governor-General, acting with the advice of the Executive Council, had authorized the acquisition by compulsory process of the plaintiff's land "for the following public purpose approved by the Governor-General, namely the provision of broadcasting and television studios and offices for the Australian Broadcasting Commission in accordance with the Broadcasting and Television Act 1942-1962". (at p239)

6. This was not the first notice of compulsory acquisition of the land that had been given. On 5th April 1963 a notice had been gazetted purporting to acquire it "for the following public purpose approved by the Governor-General: The Australian Broadcasting Commission at Ripponlea, Victoria"; and in Jones v. The Commonwealth [1963] HCA 43; (1963) 109 CLR 475 that notice was held to be ineffective because it had failed to state a "public purpose" in respect of which the Parliament had power to make laws. It did no more than state that the purpose was a corporation at Ripponlea, Victoria, and the mere naming of the corporation did not sufficiently indicate the purpose for which the land was sought to be acquired. The attempted acquistion therefore failed. It was after the argument in that case had ended and before the Court delivered judgment that the notice with which the present case is concerned was gazetted. No notice to treat was given either before or after the publication of the earlier notice but, on 3rd April 1963, the Minister had certified, under s. 9 (8) of the Act, that there were special reasons (which were set out in the certificate) why s. 9 should not apply to the case. (at p240)

7. In this case the validity of the notice of acquisition of 15th October 1963 is again attacked upon a number of grounds. It has been submitted that it, like the earlier one, failed to specify with sufficient particularity the public purpose for which it was sought to acquire the land. It has also been contended that the enactment of so much of the Broadcasting and Television Act as purports to set up the Australian Broadcasting Corporation and to give it the functions of preparing and transmitting broadcasting and television programmes is not within the constitutional powers of the Parliament and that land cannot therefore be validly acquired by the Commonwealth for the purposes of the Commission. Alternatively it has been contended that if the Parliament had power to enact such a law, yet one or more of ss. 59 (2), 60 and 67 of the Act are outside power and invalid, and that the notice of acquisition is inoperative because the purpose stated in it may have been a valid or an invalid one. It is said also that the land was at all material times "reserved as a public park or otherwise for the purposes of public recreation" under the laws of the State of Victoria and that s. 6 (2) of the Lands Acquisition Act forbade its acquisition by the Commonwealth. Finally it is contended that the Minister's certificate of 3rd April 1963 that special reasons existed why s. 9 of the Lands Acquisition Act should not apply has no application to the acquisition now in question and that, in the absence of a notice to treat, the land cannot be compulsorily acquired. (at p240)

8. This last argument can, I think, be dealt with briefly. The certificate of 3rd April 1963 was no doubt given in anticipation of the publication of the earlier notice of acquisition which proved to be inoperative. The special reasons why s. 9 of the Lands Acquisition Act should not apply were stated in the Minister's certificate to be "that negotiations have been conducted over a considerable period of time with the owner in an endeavour to reach agreement but these negotiations have been to no avail and it is not possible to acquire the land by agreement". There is nothing to suggest that these reasons had ceased to operate at the time when the second notice of acquisition was published and I can see no reason why the certificate should not be regarded, for the purposes of that notice, as effectively dispensing with the necessity for giving a notice to treat. (at p241)

9. The submission that the land could not be acquired by the Commonwealth because of the provisions of s. 6 (2) of the Lands Acquisition Act is based upon the Victorian Town and Country Planning Act 1961 and an Interim Development Order made pursuant to that Act. The Act provides for the preparation of planning schemes by various authorities and for the making of Interim Development Orders. Under s. 17 such an order may be made after the date of the commencement of the preparation of a planning scheme and before the scheme is approved. An Interim Development Order may regulate, restrict, restrain or prohibit the use or development of any land or the erection, construction or carrying out of any buildings or works on any land within any area to which the scheme relates, subject to a proviso that nothing in the order shall prevent the continued use of any land etc. for the purposes for which it was being lawfully used immediately before the coming into operation of the order. (at p241)

10. The land with which this case is concerned was situated in an area in respect of which a planning scheme was in course of preparation and an Interim Development Order in relation to that area had been made before the notice of acquisition was published. The effect of cl. 32 (1) of the Order when read with a "Planning Map" to which the clause refers and with the Table appended to that clause was that the plaintiff's land was deemed to be reserved for the purpose of "Open Space - public proposed", a description which may be compared with "Open Space - public existing" which the Table designated as the purpose for which another parcel of land was deemed to be reserved. Clause 33 of the Order provides that reserved land may be used for the purpose for which it was lawfully used immediately before the commencing date of the Order or for any purpose for which it is deemed to be reserved under cl. 32. The Order contains no definition of "Open Space". By reason then of the planning legislation and the Interim Order made under it, the plaintiff's land was, when the notice of acquisition was published, deemed to be reserved for the purpose of an "Open Space - public proposed" and this meant that if and when a planning scheme was finally adopted and put into operation the land might be made available as a public "Open Space" which, I will assume for the purposes of the argument, means a public park or public recreational area. But s. 6 (2) of the Lands Acquisition Act speaks of land "which is dedicated or reserved, or is vested in trustees, as a public park or otherwise for the purposes of public recreation" and these are words which, in my opinion, refer to land which at the date of the proposed acquisition is reserved or dedicated or vested in trustees and is then being used as a park or for public recreational purposes. They are not apt to include land which at the date of notice of acquisition is not being so used but which may in certain events be put to such a use in the future. Counsel sought to support his submission by referring to the definition of "land" in the Lands Acquisition Act 1906. That definition had the effect of preventing the acquisition by the Commonwealth of "public parks vested in or under the control of municipal or local authorities and dedicated to or reserved for the recreation of the public or such other lands dedicated to or reserved for the use and enjoyment of the people as have been specified by Proclamation". He submitted that the draftsman of s. 6 (2) departed from the language of the earlier provision for the purpose of imposing a further limitation upon the power of the Commonwealth to acquire land. Since 1906 town planning had, as he pointed out, become a recognized feature of State legislation and s. 6 (2) was, he contended, drawn in light of that fact with the intention of preventing the acquisition not only of public parks and other public recreational areas dedicated or reserved or vested in trustees for those purposes and used as such but also to prevent the acquisition of land which under Town Planning legislation in the various States was reserved under interim planning schemes for possible future use for those purposes. I can find nothing in the legislative history of the provision to support counsel's submission. (at p242)

11. There remains to be considered the remaining three reasons advanced by counsel in support of his contention that the notice of acquisition published on 15th October 1963 effected nothing. The first was that, on the assumption that the Broadcasting and Television Act was in its entirety a valid exercise of legislative power, the notice failed to specify with sufficient particularity the public purpose for which the land was being acquired by the Commonwealth. Next it was put that, assuming it to be within the competence of the Parliament to establish the Australian Broadcasting Commission with the functions of producing and transmitting broadcasting and television programmes, some or all of the provisions contained in ss. 59 (2), 60 and 67 of the Act were outside power because they were not reasonably incidental to the exercise by the Commission of the powers and functions conferred upon it by s. 59 (1). In those circumstances, the notice of acquisition was defective in that it did not make it plain that the purpose for which the land was being acquired was one for which it might lawfully be used. The purpose might equally be one outside the Commission's lawful powers. Finally it was submitted that so much of the Act as purported to establish the Commission to produce broadcasting and television programmes and transmit them was invalid. It was not competent for the Parliament to establish a corporation for those purposes and land could not be lawfully acquired for its use. (at p243)

12. The first of these contentions depends upon the language of the notice in which the purpose is stated to be "the provision of broadcasting and television studios and offices for the Australian Broadcasting Commission in accordance with the Broadcasting and Television Act 1942-1962" and the argument proceeded upon the assumption that the Act was a valid exercise of legislative power. On that hypothesis I think it is clear that the purpose expressed relates to s. 63 (1) which requires the Commission to provide such studios and offices as are necessary for the performance of its powers and functions and the notice does, in my opinion, express in clear and unambiguous terms a public purpose. The alternative submission that ss. 59 (2), 60 and 67 of the Act or some one or more of those sections are invalid proceeds upon a somewhat similar hypothesis, namely that the remainder of the Act is within power. If that be so, I do not agree that the invalidity of ss. 59 (2), 60 and 67 would affect the validity of the notice of acquisition. Whether some of the powers which those provisions purport to confer are within power is open to debate. But I find it unnecessary to determine these matters in the present case because, assuming that those sections are invalid, s. 63 (1) would on this argument still stand and the notice of acquisition would be good. (at p243)

13. The final matter to be determined is whether the constitutional power in s. 51 (v.) of the Constitution to make laws with respect to "Postal, telegraphic, telephonic, and other like services" enables the Parliament to set up the Australian Broadcasting Commission with the functions of preparing broadcasting and television programmes and transmitting them to listeners and viewers. Counsel for the plaintiff did not suggest that the provision of broadcasting facilities, that is to say the provision of the technical apparatus whereby "messages" in the form of words or sounds may be transmitted to listeners is not another "like" service within the meaning of s. 51 (v.) of the Constitution. In the light of the decision of this Court in R. v. Brislan; Ex parte Williams [1935] HCA 78; (1935) 54 CLR 262, an argument to the contrary could not be sustained. And counsel agreed, and properly so, that television - the transmission of "messages" in pictorial form - stood in no different position to the broadcasting of words or sounds. He contended, however, that while the Constitution enabled the Parliament to make laws for the provision of the necessary mechanical and technical apparatus by which broadcast and television "messages" may be transmitted, it could not enact a law creating a body such as the Australian Broadcasting Commission with the function of preparing such "messages" and transmitting them to recipients. Postal, telegraphic and telephonic services are services by means of which individuals may communicate with one another. The Parliament could not, he argued, lawfully provide that all postal matter, telegrams or telephone messages should be composed and despatched only by a person or corporation set up by it for that purpose and could not deny to members of the public the right to avail themselves of the facilities provided for the despatch of postal, telegraphic and telephonic matter. It is only "services" that can be provided and, while the Commonwealth may use those services to despatch its own messages and receive those sent to it, the only services which s. 51 (v.) permits to be established are those which are available for use by members of the public for the sending of communications and for their receipt. It may be that this is so in the case of a "service" such as the postal service. I express no opinion on the point. But if it is, it is because such a service is one which, according to the common understanding of mankind, has always been regarded as providing a means by which individual communications may be made between one person and another. But in this respect a broadcasting or television service differs from a postal, telegraphic or telephonic service and it was for this reason that Dixon J. (as he then was) dissented in Brislan's Case [1935] HCA 78; (1935) 54 CLR 262 As his Honour pointed out: "Broadcasting provides a means by which those who secure for themselves an appropriate receiving set may hear speeches, music, entertainments, announcements and the like, addressed to the public at large from some central point. There is no inter-communication; no means is provided by which one individual can originate a message or establish communication with another; there is nothing to satisfy the purpose for which any of the enumerated services exist" (1935) 54 CLR, at p 293 The question that arose for decision in that case was not identical with that which arises in the present case. But it is, I think, significant that at the time when Brislan's Case [1935] HCA 78; (1935) 54 CLR 262 was decided the Australian Broadcasting Commission had been established for the purpose of providing programmes and broadcasting them from national broadcasting stations made available to it by the Commonwealth and that, in all relevant respects, the Commission's functions with regard to broadcasting were the same then as those which it is required to perform under the present Act. The "service" that was there under consideration was one which operated in the same fashion as it does now. It included the preparation and transmission of programmes by persons or bodies authorized to perform those functions. And this is a recognized feature of broadcasting and television services throughout the world. Sometimes the preparation and transmission of the material is done by the Government of the country concerned, sometimes it is entrusted to a body set up by law for that purpose, sometimes to a commercial enterprise licensed to perform that function. With this in mind I can see no reason why the constitutional power to make laws with respect to broadcasting and television services in Australia should be limited in the way suggested. To hold that the only power exercisable by the Commonwealth is to provide the technical apparatus for transmission would be to take an unduly narrow view of the powers conferred by s. 51 (v.). In my opinion a law establishing an authority with the functions of producing broadcasting and television programmes and transmitting them is a law with respect to broadcasting and television services. (at p245)

14. I would uphold the demurrer. (at p245)

ORDER

Action dismissed with costs.