Presentation on theme: " 2.9 High Court Decisions And The Balance of Power - regulating mass communication technologies."— Presentation transcript:
2.9 High Court Decisions And The Balance of Power - regulating mass communication technologies
One of the great challenges facing the Constitution is to remain relevant in a world that changes by the day, especially in the area of technology. The High Court has issued a series of rulings that have ensured that the Commonwealth has control over emerging technologies such as mass communications and the internet
Section 51(v) of the Constitution gives the Commonwealth the power to legislate on ‘postal, telegraphic, telephonic, and other like services’. As technology has increased over the past 110 years, the definition of what constitutes ‘other like services’ has been widely debated. As a direct result of High Court interpretation of the term ‘other like services’, the Commonwealth can now regulate radio, television, internet, satellite, cable and optic fibre technologies in ways that could not have been imagined ay Federation.
The Commonwealth Parliament had passed the Wireless Telegraphy Act (1905) which required all people who owned a wireless set to be licensed. This required the payment of a fee. A challenge was made to the law on the basis that the Commonwealth did not have the power under the Constitution to impose the requirement of the licence. The High Court decided that s. 51(v) included the power to regulate radio broadcasting and on this basis, the 1905 legislation was valid law. The majority of the judges found radio to be a wireless type of ‘telegraphic or telephonic service’, rather than an ‘other like service’. It is clear in the judgement that the Court considered the phrase ‘other like services’ should encompass developments in technology not anticipated at Federation and therefore not explicitly listed in the Constitution.
The High Court found that television broadcasting also came within s. 51(v), thereby allowing the Commonwealth control over this rapidly developing part of our lives. In his ratio decidendi (‘the reason for the decision’) judgement in the Brislan case, Chief Justice Knox expanded the definitions in s. 51(v) to include reference to future developments in technology, which at that time were only the subject of research. The Commonwealth has used this decision to develop far- reaching laws on areas such as media ownership and the rollout of digital networks, which from 2013 have replaced the older systems.
The extent of the reach of ‘other like services’ under s. 51 (v) was also seen with the Commonwealth's passing of the Interactive Gambling Act (2001), which tightly regulates online casinos in Australia and the advertising of online gambling. In creating legislation to regulate the internet, the Commonwealth has assumed that the broad interpretations of s. 51 (v) delivered by the High Court in cases such as Brislan and Jones have given it wide-ranging authority over twenty-first century technologies, especially in the area of mass communications. The national broadband network (NBN) is being implemented across Australia. The Commonwealth has the power to legislate in this area as under s. 51 (v) the Commonwealth has the power to legislate on ‘postal, telegraphic, telephonic, and other like services’