R v Sharkey
(1949) 79 CLR 121(Judgment by: DIXON J)
Between: THE KING
And: SHARKEY
Judges:
Latham CJ
Rich J
Dixon JMcTiernan J
Williams J
Webb J
Subject References:
Constitutional Law (Cth.)
Judgment date: 7 October 1949
Melbourne
Judgment by:
DIXON J
Upon a trial on indictment before Dwyer J. the accused was found guilty of the offence of uttering seditious words. Thereupon Dwyer J. stated this case under s. 72 of the Judiciary Act 1903-1948. The indictment was filed in the Supreme Court of New South Wales on behalf of the Commonwealth and the charge was laid under s. 24D (1), s. 24B (2) and s. 24A of the Federal Crimes Act 1914-1946. The charge was that the accused on 4th March 1949 at Sydney did utter seditious words, namely -
"If Soviet Forces in pursuit of aggressors entered Australia, Australian workers would welcome them. Australian workers would welcome Soviet Forces pursuing aggressors as the workers welcomed them throughout Europe when the Red troops liberated the people from the power of the Nazis. I support the statements made by the French Communist leader Maurice Thorez. Invasion of Australia by forces of the Soviet Union seems very remote and hypothetical to me. I believe the Soviet Union will go to war only if she is attacked and if she is attacked I cannot see Australia being invaded by Soviet troops. The job of Communists is to struggle to prevent war and to educate the mass of people against the idea of war. The Communist Party also wants to bring the working class to power but if Fascists in Australia use force to prevent the workers gaining that power Communists will advise the workers to meet force with force."
We were informed that particulars were given under the indictment both of the person to whom the words were uttered and of the forms of seditious intention relied upon. The person to whom the words were alleged to have been uttered was one J. D. McGarry a newspaper reporter employed on the staff of the Daily Telegraph. The forms of seditious intention were those stated in pars. (b), (c), (d) and (g) of sub-s. (1) of s. 24A. It appeared in evidence that the accused was an official of the Communist Party in Australia - General Secretary - and that in that capacity McGarry had sought from him a statement for publication in the newspaper concerning a cable reporting something said by M. Maurice Thorez a French Communist. The conversation was over the telephone. McGarry informed the accused that a cable to the newspaper said that Thorez had made this statement:
"If the Red Army came to France in pursuit of aggressors, French workers would behave towards it as did the workers of Poland and Rumania."
He requested the accused to discuss Thorez' statement and the Communist policy. At first the accused said he would prefer to give him a prepared statement on the following day, but afterwards he consented, on receiving an assurance that what he said would be read back to him as many times as he wished and that only what he finally approved would be published and that it would be published in full. A running conversation then ensued over the telephone in which McGarry made notes of what the accused said. From the notes he put together a statement which he read back to the accused. It was corrected and re-read several times and finally the accused gave his approval of the text. The newspaper did not publish the statement in full but what was printed included the sentiments complained of in the indictment. It might have been supposed that the accused would be charged not with uttering the words to McGarry, but with printing and publishing them in the newspaper. For he would appear to have authorized this publication in the newspaper. But whether because the newspaper did not publish the whole statement, as had been stipulated, or because the committing magistrate decided against a charge of publishing the seditious words in the newspaper, the indictment was framed as a charge of orally uttering the words, that is, to McGarry. (at p147)
2. The exact text set out in the indictment was what McGarry read to the accused; as a precise text the accused did not utter it to McGarry, but McGarry read it to the accused. However there was evidence that it was composed from statements made by the accused in the early part of the telephone interview with McGarry and I think there was enough to entitle the jury to find that at the earlier stage the substance of what the indictment charges was said by the accused to McGarry. (at p147)
3. It is, however, another question whether the statements support a charge of seditious utterance under Federal law. That question does not depend entirely on the meaning and application of the provisions of the Crimes Act and the interpretation which might be placed on the utterance proved. The validity of the provisions of ss. 24A, 24B and 24D was attacked in this case as it was in the case of Burns v. Ransley (1949) 79 CLR 101 . The ground of the attack is that they relate to matters outside Federal power. Section 24D creates the offence of writing, printing, uttering or publishing seditious words. Section 24B defines seditious words as words expressive of a seditious intention. Section 24A defines, exhaustively, as I think, a seditious intention to be an intention to effect any of certain purposes which it proceeds to set out in lettered paragraphs. We are concerned with the four paragraphs, relied upon in the particulars, because the four forms of intention were left to the jury. They are the following purposes: -
- "(b)
- to excite disaffection against the Sovereign or the Government or Constitution of the United Kingdom or against either House of the Parliament of the United Kingdom;
- (c)
- to excite disaffection against the Government or Constitution of any of the King's Dominions;
- (d)
- to excite dis-affection against the Government or Constitution of the Commonwealth or against either House of the Parliament of the Commonwealth; ...
- (g)
- to promote feelings of ill-will and hostility between different classes of His Majesty's subjects so as to endanger the peace, order or good government of the Commonwealth."
In the case of each of these purposes, the question is whether the Parliament might validly make it the basis of the crime of seditious publication. (at p148)
4. I do not doubt that the legislative power of the Commonwealth extends to making punishable any utterance or publication which arouses resistance to the law or excites insurrection against the Commonwealth Government or is reasonably likely to cause discontent with and opposition to the enforcement of Federal law or to the operations of Federal government. The power is not expressly given but it arises out of the very nature and existence of the Commonwealth as a political institution, because the likelihood or tendency of resistance or opposition to the execution of the functions of government is a matter that is incidental to the exercise of all its powers. But the legislative power is in my opinion still wider. The common law of seditious libel recognizes that the law cannot suffer publications the purpose of which is to arouse dis-affection against the Crown, the Government or the established institutions of the country, although they stop short of counselling or inciting actual opposition, whether active or passive, to the exercise of the functions of government. In the United States it seems to be acknowledged that, apart from the First Amendment, Federal positive legislative power extends not only to suppressing utterances and writings which are intended, and may be expected, to cause interference with the execution of Federal powers but also to penalizing publications directed to bringing "into contempt scorn contumely or disrepute" the constitution, the form of government or the flag. The guarantee of freedom of speech contained in the First Amendment may restrain the latter, but not in time of war: see Willoughby, The Constitutional Law of the United States, 2nd ed., (1929) vol. 2, pp. 1200, 1202. The prevention of attempts to excite hostility where obedience is necessary for the effective working of government appears to be recognized as a proper purpose of the legislation of the Government concerned.
I therefore regard it as clearly within power to penalize utterances and publications expressing a purpose of exciting disaffection against the Sovereign, the Government or Constitution of the Commonwealth or either House of the Parliament of the Commonwealth. (at p149)
5. The validity is more doubtful of so much of par. (b) as includes among seditious intentions a purpose to excite disaffection against the Government or Constitution of the United Kingdom or against either House of the Parliament of the United Kingdom. When the provision was enacted the ultimate legislative authority of the Parliament at Westminster was exercisable with reference to the Commonwealth and that may have provided a theoretical basis for a law safeguarding the institution against disaffection. The Statute of Westminster has, however, since provided against the exerciseability of the power unless with the consent and request of the Commonwealth as one of the Dominions: s. 4. This weakens such a theoretical basis. But even so the constitutional relations of Australia as part of the British Commonwealth with the established Government of the United Kingdom are such that it may be considered that a law to safeguard the Constitution and Parliament of the United Kingdom from disaffection is a law upon a matter incidental to the protection and maintenance of the Australian Federal policy itself. I think that par. (b) is within power. In any case there is the power to make laws with respect to external affairs. Perhaps only under that legislative power can par. (c) be supported. The paragraph makes the purpose of exciting dis-affection against the Government or Constitution of any of the King's Dominions a seditious intention. (at p149)
6. But I do not think that we are called upon to decide upon so much of s. 24a (1) as includes the Constitution of the United Kingdom and of other Dominions and the House of Parliament of the United Kingdom and the Governments of other Dominions. For I think that it is impossible to treat the utterance set forth in the indictment as expressive of an intention to effect the purpose of causing disaffection against those constitutions or institutions, and the jury could not reasonably find that such an intention was disclosed by the words. In his summing-up the learned judge appeared to lay more emphasis upon the purpose described by par. (g) than upon the three other forms of purpose that he left to the jury. I think that it was open to the jury to find that the words set out in the indictment are expressive of an intention to effect a purpose to promote feelings of ill-will and hostility between different classes of His Majesty's subjects. Whether the jury might also find that the further element or condition expressed by the words "so as to endanger the peace, order or good government of the Commonwealth" was satisfied may depend perhaps on the meaning to be attached to those words. But I do not think that the constitutional validity of par. (g) can be sustained. Apart from the last words of the paragraph, the words to which I have referred, it is framed in accordance with the language used in article 93 of Sir James Fitzjames Stephen's Digest of Criminal Law, language adopted in the draft Criminal Code recommended in 1879 by the Commission over which he presided. I do not know that the authority is very satisfactory upon which the view rests that at common law every utterance expressive of an intention to promote feelings of ill-will and hostility between different classes of people is a misdemeanour. I notice that in the report of the trial of R. v. Burns (1886) 2 TLR 510 , at p 514; 16 Cox CC 355 , Cave J. commented upon the vagueness of the criterion. The summingup of Deasy J. in the Irish case of R. v. Pigott and Sullivan (1868) 11 Cox CC 44 was read to his Lordship, where the expression used was "excite animosity among different classes of Her Majesty's subjects." Cave J. observed that the intent alleged must mean to promote feelings of ill-will calculated to lead to public disorder. In his charge to the jury his Lordship said that he would rather prefer to say that the intention to promote feelings of ill-will and hostility between different classes of Her Majesty's subjects might be a seditious intention according to the circumstances and of those circumstances the jury were to be the judges in that case. (at p150)
7. Unless in some way the functions of the Commonwealth are involved or some subject matter within the province of its legislative power or there is some prejudice to the security of the Federal organs of government to be feared, ill-will and hostility between different classes of His Majesty's subjects are not a matter with respect to which the Commonwealth may legislate. Such feelings or relations among people form a matter of internal order and fall within the province of the States. It was doubtless because this was seen to be the case that the curious words "so as to endanger the peace, order or good government of the Commonwealth" were added to those of Sir Fitzjames Stephen. But before entering upon the question whether they can be used to bring the "ill-will and hostility" to which they relate within the ambit of Federal legislative power, I shall say more specifically why, unless the added words can be so used, the paragraph falls outside the scope of Federal legislative authority. (at p150)
8. Just as "none of" the enumerated subjects with respect to which the Parliament may make laws "relate to that general control over the liberty of the subject which must be shown to be transferred if it is to be regarded as vested in the Commonwealth" (Attorney-General for the Commonwealth v. Colonial Sugar Refining Co. Ltd. (1914) AC, at p 255; 17 CLR 644 , at p 654 , so none of such subjects relate to public order, to the control of what is written, spoken or published, to the limits upon freedom of expression, to the maintenance of the King's peace or to social order. Section 119 of the Constitution provides that the Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence. The reference to invasion explains the words "and of the several States" in s. 51 (vi.), the defence power. But what is important is the fact that, except on the application of the Executive Government of the State, it is not within the province of the Commonwealth to protect the State against domestic violence. The comments made by Quick & Garran in Constitution of the Australian Commonwealth bring out clearly the distinction between matters affecting internal order and matters, which though in one aspect affecting internal order, concern the functions or operations of the Federal Government: -
"The maintenance of order in a State is primarily the concern of the State, for which the police powers of the State are ordinarily adequate. But even if the State is unable to cope with domestic violence, the Federal Government has no right to intervene, for the protection of the State or its citizens, unless called upon by the State Executive. If, however, domestic violence within a State is of such a character as to interfere with the operations of the Federal Government, or with the rights and privileges of federal citizenship, the Federal Government may clearly, without a summons from the State, interfere to restore order. Thus if a riot in a State interfered with the carriage of the federal mails, or with inter-state commerce, or with the right of an elector to record his vote at federal elections, the Federal Government could use all the force at its disposal, not to protect the State, but to protect itself. Were it otherwise, the Federal Government would be dependent on the Governments of the States for the effective exercise of its powers": Constitution of the Australian Commonwealth by Quick & Garran, at p. 964. (at p151)
9. The power to legislate with respect to incidental matters has always been applied flexibly and liberally, as it must in a Constitution, but it cannot authorize legislation upon matters which are prima facie within the province of the States upon grounds of a connection with Federal affairs that is only tenuous, vague, fanciful or remote. Is a sufficient connection with the operations, functions, security or other concern of the Federal Government shown or indicated by the words "so as to endanger the peace, order or good government of the Commonwealth"? I find myself at a loss to know what specific element in the crime these words describe. They are obviously taken from s. 51, but the conjunction "and" is changed to "or." When s. 51 says "The Parliament shall . . . have power to make laws for the peace, order and good government of the Commonwealth, with respect to -" the section employs traditional words used in many constitutions to confer plenary powers over named territories. They occur in s. 91 of the British North America Act 1867, and no doubt this was their more immediate source. But there the words serve a purpose. For if a measure does not fall within the matters assigned by s. 92 to the Provinces, the Parliament of the Dominion, under the general power to make laws for the peace, order and good government of Canada, may obtain authority to enact it (Russell v. The Queen (1882) 7 App Cas 829, at p 836 ).
There is a long list in Quick & Garran on the Constitution of the Australian Commonwealth, at pp. 511, 512, of Imperial Acts conferring constitutions on Colonies and Dominions containing the same or similar words. The list begins with the Quebec Act 14 Geo. III c. 83, s. 12, and ends with the British North America Act 1867. To the list there should be added the South Africa Act 1909, s. 59 of which enacts that the Parliament of the Union shall have full power to make laws for the peace, order and good government of the Union. in s. 51 of the Commonwealth Constitution the words appear to have been understood as giving a plenary character, within their ambit, to the powers over the specific subject matters afterwards enumerated (cf D'Emden v. Pedder (1904) 1 CLR 91, at pp 110-113 and Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920) 28 CLR 129 , at p 165 , per Higgins J.). In Attorney-General for the Commonwealth v. Colonial Sugar Refining Co. (1914) AC, at p 255; (1913) 17 CLR, at pp 653, 654 Lord Haldane seems to imply the same thing: -
"The section (i.e. s. 51) commences by declaring that the Parliament of the Commonwealth shall, subject to the new Constitution, have power to make laws for the peace, order, and good government of the Commonwealth. But this power is not conferred in general terms. It is, unlike the corresponding power conferred by s. 91 of the Canadian Constitution Act of 1867, restricted by the words which immediately follow it. These words are 'with respect to,' and then follow a list of enumerated specific subjects".
The words "of the Commonwealth" may operate to confine the exercise of the legislative powers in respect of the matters which follow to Australia territorially or by reference to "the Commonwealth." But otherwise there is nothing restrictive in the entire phrase, the amplitude of which is itself restricted, as the foregoing passage shows, by the enumeration which follows.
Which of the various meanings of the word "Commonwealth" should be given to the word in the context is perhaps open to dispute. ". . . the term is in fact used in several senses connected so closely that it is peculiarly important to distinguish them. First, it is as already explained, the territorial community, the 'single entity,' the 'new State or nation,' established under the Act (e.g., secs. iii and iv.). Secondly, it describes the territory occupied by that community (e.g., sec. 95). Thirdly, it describes the Federal Government or some appropriate organ thereof. It is in this sense that prohibitions to make laws of various kinds (e.g., secs. 99, 100, 114, 116) are to be understood; they are addressed to the Parliament as the legislative organ of Federal Government; the prohibition does not bind the Commonwealth as a political organism, for the Constitution may be amended by the Commonwealth": Sir W. Harrison Moore, Commonwealth of Australia, 2nd ed., at p. 73. Probably the word should be understood in s. 51 territorially or, what has much the same result, as referring to the community united as a nation.
When the disjunctive "or" is substituted for "and," it seems to make no real alteration in the meaning of the phrase. It points perhaps to the necessity of considering separately or distributively the elements that go to make up the welfare of the people. But that is all. The words are in my opinion incapable of any definite meaning which would provide the necessary connection with the subjects of Federal power, with the administration of the Federal Government or with the security of any of its institutions. They are as large as the practically identical words in s. 51 which are larger than the enumerated legislative powers of the Parliament. It is true that in America currency has been given to the expression the "peace of the United States." Brewer J. spoke of the power of the Government of the United States to command obedience to its laws and hence to keep the peace to that extent (Ex parte Siebold (1879) 100 US 371, at p 395 (25 Law Ed 717, at p 725) ). In In re Neagle (1890) 135 US 55, at p 73 (34 Law Ed 1, at p 69) , Miller J., perhaps taking up these words, said, -
"That there is a peace of the United States; that a man assaulting a judge of the United States while in the discharge of his duties violates that peace; that in such case the marshal of the United States stands in the same relation to the peace of the United States which the sheriff of the county does to the peace of the State of California; are questions too clear to need argument to prove them."
The proposition seems to be little else than a striking way of saying that an opposition to the execution of the law of the United States or any violence exhibited to officers of the United States in the course of their duty may be lawfully met under Federal authority with any necessary force and that the commonlaw duties of officers of the law and no doubt of the citizen to render assistance attach in the same way as they do under state law. The result is that, as in In re Neagle (1890) 135 US 55 (34 Law Ed 1) , the justification of a Federal officer who has used force for the purpose is considered to arise under Federal law. (at p154)
10. But even if any meaning is to be attached to the words "peace of the Commonwealth" in par. (g) analogous to that which in the United States may be attributed to the "peace of the United States," it would fall short of providing a sufficiently specific connection with the subjects of Commonwealth power. What is the element for which you are to look in the definition of the crime? What is the specific connection with the affairs of the Federal Government which must exist in fact and must be endangered by the seditious words? It is impossible to define it. Perhaps the question should be asked in a different form. For it may be that the words "so as to" attach to the purpose and in that case the inquiry would be what precisely is it that the speaker must intend to endanger by what he says. Or it may be that the words "so as to" attach to the feelings of ill-will and hostility the speaker means to excite. Then the inquiry would be what is it that such feelings are expected to endanger if they are excited. But whatever may be the grammar of the expression, it describes no definite thing or state of fact capable of connecting the utterance with a subject of Commonwealth power or any of the affairs of the Commonwealth. (at p154)
11. I think that par. (g) as a description of one of the forms of seditious intention constituting a necessary element in the crime is not within the power of the Commonwealth Parliament to enact. (at p154)
12. The result of what I have said is to leave for consideration the question whether it was open to the jury to find that the words alleged in the indictment, so far as the jury were satisfied that they were uttered to McGarry, were expressive of an intention to effect the purpose of exciting disaffection against the Sovereign or against the Government or Constitution of the commonwealth or against either House of Parliament of the Commonwealth. I think that the Houses of Parliament may be put aside. There is nothing in the statement that adverts to the Houses of Parliament or seems to have anything to do with the legislature as a distinct organ of government. (at p155)
13. But I am not prepared to say that it would not be open to a jury to find that the words set out in the indictment disclose a purpose of turning people from, disaffecting them against, the Crown, the Commonwealth Constitution and Government. We are not in the present case judges of fact. On this question, which is one of fact, we cannot decide whether the words alleged in the indictment to have been uttered were expressive of an intention to effect the purpose of exciting disaffection against the Sovereign, the Commonwealth Constitution or Government. Our province is to decide whether upon the evidence a conclusion against the accused on this issue would be unreasonable.
That means that, given a correct interpretation of the provisions of the law, while the meaning with which the words said to be seditious were spoken is for the jury to decide, it is for the court to say whether it would be reasonable to find in them an intention to effect the precise purpose stated. But in deciding this question, which is called a question of law, we must concede to a jury the power to draw all the inferences as to purpose open upon the words when applied to the circumstances in which they were uttered, including public events that may be sufficiently notorious. Looking at the whole utterance alleged in the indictment I think it is possible for a jury to conclude that the words do disclose a purpose of exciting disaffection against the crown, the Constitution and the Government of the Commonwealth. I base this opinion upon the possibility of its being considered (i) that the reference to the Soviet forces pursuing aggressors is related to the statement that the Soviet will go to war only if attacked and (ii) that both together are intended to convey that in a war between the British Commonwealth and the Soviet the former would be aggressors and Australian workmen would welcome and support a Soviet force in Australia in such a war, and (iii) that the reference to Communists advising workers to use force is intended to be understood (notwithstanding the mention of "Fascists") as advice to the workers to use violence to overcome the use of force to uphold and enforce the law, so as to gain power unconstitutionally. (at p155)
14. Much may be said against this interpretation and the inference founded upon it of a purpose to arouse disaffection against constitutional government, and I am not to be taken as saying that it should be adopted by a jury. But I think that it is not so unreasonable that it may not be submitted for the consideration of a jury. (at p155)
15. The case stated by Dwyer J. reserves specific questions for the Court. One, which is contained in par. 7 of the case, asks whether ss. 24A, 24B and 24D of the Crimes Act 1914-1946 are invalid. I answer the question that in its application to s. 24B (2) and s. 24D (1), s. 24A (1) (d) is valid and so much of s. 24A (1) (b) as refers to the Sovereign is valid and that s. 24A (1) (g) is invalid, that s. 24B (2) and s. 24D (1) in relation to s. 24A (1) (d) and to the aforesaid provisions of s. 24A (1) (b) are valid and that otherwise the validity of the said sections does not arise. One difficulty about this question is that the matter about which it inquires was raised at an early stage of the trial. It involves a question as to the limits inter se of the constitutional powers of the Commonwealth and those of the States. Section 40A, unlike s. 38A, contains no exception of trials of indictable offences. Unless the exception is to be imported into it from s. 38A, which would be a very strong course, s. 40A required the Supreme Court to proceed no further, after the question was raised. But, since for reasons I am about to state, I think the verdict must be set aside, I need not dwell on this difficulty. (at p156)
16. Paragraph 8 of the case stated contains three questions. The third of them asks - "Whether the words alleged to have been uttered in the circumstances in which they were alleged to have been uttered were capable of being expressive of seditious intention within the meaning of the Crimes Act 1914-46." I answer this question that they are capable of being expressive of the intentions to effect the purpose of exciting disaffection against the Sovereign or against the Government or Constitution of the Commonwealth but not otherwise. This answer, combined with the answer to the earlier question means that the accused is entitled to have the verdict set aside. The particulars under the indictment alleged seditious intentions under s. 24A (1) (b), (c) and (d) which the words were not capable of expressing and the seditious intention described by par. (g) which I decide to be void. The latter appears to have been much relied upon. These were all submitted to the jury and the verdict of guilty may have been founded on any one of them. The jury were encouraged to found it on par. (g). The powers of this Court in a case stated under s. 72 are given by s. 73. The Court may amongst other things set aside the verdict and order a verdict of not guilty or order a new trial.
I think the verdict must be set aside. I have hesitated as to an order for a new trial upon this indictment because it is confined to the utterance of the words orally to one man and he obtained the statement as a matter of business. But as matter for a jury remains, I suppose an order for a new trial is the regular course. (at p156)
17. I would remit the cause under s. 45 of the Judiciary Act 1903-1948. The first and second questions in par. 8 of the case stated upon this view cease to be of any importance, but if they are to be answered, I would answer them in the affirmative. (at p157)