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Kehi v Theodore [1978] PNGLR 217 (16 June 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 217 - Kuya Kehi v Kelu Theodore 

[1978] PNGLR 217

N160

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KUYA KEHI

V

KELU THEODORE

Waigani

Andrew J

16 June 1978

BY-LAWS AND REGULATIONS - Validity - Power of court to determine validity - By-laws having the force of law - Whether ultra vires enabling legislation - Construction - Obscene language by use of telephone - Telephone (N.G.) Regulations 1959, reg. 7[ccclxvii]¹ - Post and Telegraph Act 1912, s. 95[ccclxviii]².

POST AND TELEGRAPH - Administration and control of telecommunications systems - Regulation creating offence of obscene language by use of telephone - Validity of regulation - Whether ultra vires enabling legislation - Construction - Telephone (N.G.) Regulations 1959, reg. 7[ccclxix]³ - Post and Telegraph Act 1912, s. 95[ccclxx]⁴.

Regulation 7(1)(a) of the Telephone (N.G.) Regulations 1959 provides, inter alia, that a person shall not while using a telephone connected to a telephone system, use any language of an objectionable, obscene or offensive nature, and prescribes a penalty of K100.00, and reg. 7(2) empowers disconnection of the telephone following a conviction under the regulation.

Section 95 of the Post and Telegraph Act 1912 empowers the Governor-General “to make regulations not inconsistent with the Act prescribing all matters which are necessary or convenient to be prescribed for carrying out or giving effect to this Act and in particular for, inter alia, prescribing fees, rates and dues to be received in relation to telephone services, prescribing terms and conditions for telephone service and subscriber agreements, and for securing telegraph lines from interference.

On appeal against conviction on a charge contravening reg. 7(1)(a) of the Telegraph (N.G.) Regulations 1959 on the ground that the regulation was ultra vires the Post and Telegraph Act 1912:

Held:

(1)      The validity of regulations made under statutory authority may be inquired into by the courts;

Dyson v. Attorney-General [1910] UKLawRpKQB 203; [1911] 1 K.B. 410 referred to.

(2)      The question whether a particular regulation is ultra vires depends upon the true construction of the enabling legislation and must fall within the general heads of power given in the legislation even if the legislation contains an expression such as, “as if enacted in this Act”.

Attorney-General v. Brown [1921] 3 K.B. 29 followed.

(3)      On a true construction of the Post and Telegraph Act 1912, although there is a general power to make regulations which are necessary or convenient to be prescribed for carrying out or giving effect to the Act, which extends to the installation of telephones and the collection of rents and charges, there is no power which can be construed as power to make general regulations for the use of telephones.

(4)      Accordingly, reg. 7 of the Telephone (N.G.) Regulations 1959 is ultra vires the Post and Telegraph Act 1912 and the appeal should be allowed.

Appeal

This was an appeal against conviction on a charge of contravening reg. 7(1)(a) of the Telephone (N.G.) Regulations 1959 on the ground that the regulation was ultra vires the Post and Telegraph Act 1912.

Counsel

G. C. Lalor, for the appellant.

K. Roddenby, for the respondent.

Cur. adv. vult.

16 June 1978

ANDREW J: This is an appeal against a decision of the District Court at Kieta on the 29th December, 1977 wherein the appellant was convicted for that on the 15th December, 1977 at Arawa in Papua New Guinea he did use a telephone connected to a telephone system and use language of an obscene nature thereby contravening reg. 7(1)(a) of the Telephone (N.G.) Regulations and was sentenced to imprisonment with hard labour for a period of six months.

The principal ground of appeal is that the Telephone (N.G.) Regulations 1959 are ultra vires the Post and Telegraph Act 1912.

A second ground of appeal, that the sentence was, and is, in the circumstances manifestly excessive, was deleted on the hearing and a new ground inserted, namely that the learned magistrate had no power to order a term of imprisonment for this offence. The basis of this ground being that reg. 7(1)(a) of the Telephone (N.G.) Regulations 1959 provided a penalty for this offence of K100 or 12 months imprisonment or both but was amended by the Telephone (N.G.) Amendment Regulations 1976 (Statutory Instrument No. 36 of 1976) and by reg. 4 the words “or 12 months imprisonment or both” were omitted.

Counsel for the respondent does not oppose the appeal and in effect concedes that the principal ground of appeal correctly states the law.

The validity of rules under statutory authority may be inquired into by the courts: see Dyson v. Attorney-General[ccclxxi]⁵. A regulation has to be brought squarely within the general heads of power given in the Act even if the Act contains an expression such as “as if enacted in this Act”: see Attorney-General v. Brown[ccclxxii]⁶. By virtue of Pt. V of the Post and Telegraph Act 1912 the Governor-General is given the power to make regulations for certain purposes. Section 95 says he “may make regulations not inconsistent with this Act prescribing all matters which are necessary or convenient to be prescribed for carrying out or giving effect to this Act and in particular may make regulations for all or any of the following purposes”: Section 95 then sets out 22 purposes for which regulations may be made. The purposes relating to telephones are contained in ss. 95(m), 95(u) and 95(p).

Section 95(m) reads as follows:

“(m)    prescribing the fees, rates and dues to be received for:

(1)      any conversation on any telegraph line or on any telephone exchange or private telephone line;

(2)      rent or hire for the use of any such exchange or private telephone lines;

(3)      and generally for the management working and maintenance of any or all such telegraph lines;”

Section 95(o) reads as follows:

“(o)    prescribing the terms and conditions on which agreements may be made by the Governor General with any person for the construction and maintenance of a telegraph line for the exclusive use of any of such person or for granting the exclusive use of any existing telegraph line to any person and prescribing the scale and times and manner of payment in advance or otherwise of the rent and charges to be paid by such person as the consideration for the agreement.”

Section 95(p) reads as follows:

“(p)    for securing the telegraph lines and works from interference or injurious affection by electric lines or works.”

Part IV of the Act deals with telegraph services, see ss. 78-94 and includes telegram provisions. Section 78 gives the Post Master exclusive rights over telegraphs. From a reading of these provisions there appears no power in the Chief Post Master or the Minister to control or regulate the use of telephones.

Thus, where the general power to make regulations “which are necessary or convenient to be prescribed for carrying out or giving effect to this Act ...” is concerned, it appears that this extends to the installation of telephones and the collection of rents and charges etc. but not power to make general regulations for the use of telephones.

It should be noted that in relation to telegrams specific provision is made for blasphemous, obscene and scandalous telegrams but nowhere is there the same specific provision in relation to telephones. Regulation 7 of the Telephone (N.G.) Regulations 1959 as amended to date makes it an offence to wrongfully use a telephone in any of the manners there described. Regulation 7 now reads:

“7(1)   A person shall not:

(a)      while using a telephone connected to the telephone system, use any unbecoming expression or language of an objectionable, obscene or offensive nature, or of a character liable to provoke a breach of the peace; or

(b)      mischievously use any such telephone for the purpose of annoying or irritating a person or of conveying a fictitious order, instruction or message.

Penalty K100.00.

(2)      Where a subscriber has been convicted of an offence under the last preceding subregulation, the telephone may, without prejudice to the right of the Director to recover the rental and other charges payable be disconnected and any instrument or fittings the property of the Director removed.”

I thus find that reg. 7 of the Telephone (N.G.) Regulations 1959 is ultra vires the Post and Telegraph Act 1912.

I allow the appeal and I quash the conviction pursuant to s. 236 of the District Courts Act.

There are of course other charges which may be brought for this type of conduct, in particular, under the Summary Offences Act.

Appeal allowed.

Conviction quashed.

Solicitor for the appellant: M. Kapi, Public Solicitor.

Solicitor for the respondent: K. B. Egan, Public Prosecutor.