R v Sharkey
(1949) 79 CLR 121(Judgment by: McTIERNAN J)
Between: THE KING
And: SHARKEY
Judges:
Latham CJ
Rich J
Dixon J
McTiernan JWilliams J
Webb J
Subject References:
Constitutional Law (Cth.)
Judgment date: 7 October 1949
Melbourne
Judgment by:
McTIERNAN J
The first question is concerned with the matter of legislative power. In my opinion the answer to this question should be that none of the sections, namely ss. 24A, 24B and 24D, is beyond the legislative powers of the Commonwealth. (at p157)
2. The offences created by these sections are offences against the Commonwealth, consisting of the expression of seditious words directed against the Sovereign, the Government, the Parliament and the internal public tranquillity of the Commonwealth. So far as this description covers the offences I think that the legislative power to pass these sections is to be found in s. 51 (xxxix.) of the Constitution. (at p157)
3. Section 24A (1) refers to the Constitutions and Governments of other Dominions. To the extent to which the sections punish the expression in Australia of dissatisfaction of a seditious character with those Constitutions and Governments, I think that the sections are justified by the power vested by s. 51 (xxix.) to legislate with respect to external affairs. This expression has a wider meaning than strictly foreign affairs. It covers the relations between the Government of this country and the Government of another Dominion. These relations could be affected if seditious offences against the Government or Constitution of another Dominion were committed here with impunity. The power to legislate with respect to external affairs extends to the punishment in Australia of such offences. (at p157)
4. Upon its reasonable and proper interpretation, s. 51 (xxxix.) necessarily extends to the enactment of laws which make criminal and punishable as crimes, acts accompanied by violence which strike at the Constitution, the established order of Government and the execution and maintenance of the Constitution and Commonwealth law. The abovementioned sections of the Crimes Act make criminal acts which strike in the same direction but they are acts not necessarily accompanied by violence or leading to open violence. But for the purpose of limiting the scope of the legislative power conferred by s. 51 (xxxix.) to punish offences against the State, no rational distinction can be drawn between offences accompanied by violence and offences not accompanied by violence but displaying a seditious purpose. (at p157)
5. Section 61 of the Constitution vests power in the Executive Government to execute and maintain the Constitution and the laws made under it. Section 51 (xxxix.) gives power to make laws with respect to any matter incidental to the execution of this power. The principle upon which the sections of the Crimes Act now in question may be related to s. 51 (xxxix.) may be illustrated by the following statement made by Sir James Fitzjames Stephen - "The first and most general object of all political associations whatever is to produce and to preserve a state of things in which the various pursuits of life may be carried on without interruption by violence, or, according to the well-known expression of our law, to keep the peace. Every crime is to a greater or less extent a breach of the peace, but some tend merely to break it as against some particular person or small number of persons, whereas others interfere with it on a wider scale, either by acts which strike at the State itself, the established order of Government, or by acts which affect or tend to affect the tranquillity of a considerable number of persons, or an extensive local area." - The Criminal Law of England, (1883) vol. 2, p. 241. (at p158)
6. The Commonwealth has no power to pass laws for the punishment of crime generally. But it has power to punish offences against itself. For example, the Commonwealth has no power to pass a general Act for the punishment of criminal defamation. But its constitutional authority extends to punishment of any person who criminally defames an officer of the Commonwealth in relation to his office. A seditious offence is in its nature an offence against the State. Where the State is the Commonwealth it has power to punish a seditious offence against itself. Accordingly it has power to pass a law for the punishment of any person who writes, prints, utters or publishes any seditious words against the Sovereign, the Constitution or the Parliament or words of that character directed against the public internal tranquillity of the Commonwealth. (at p158)
7. The answers to the second and third questions depend entirely upon the evidence. I have carefully read the evidence and I am satisfied that there is evidence upon which the jury could reasonably find that the accused uttered the words alleged in the indictment or words having the same meaning and that there was corroborative testimony on this issue. (at p158)
8. The remaining question is in these terms - "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 1914-1946 (sic.)." The words in themselves, apart from the circumstances, are capable of being expressive of such an intention: for example, an intention to excite disaffection against the Sovereign and the Government of the Commonwealth (s. 24A (1) (d)) or 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 (s. 24A (1) (g)). The question is, however, whether when the circumstances in which the words were uttered are taken into consideration the words are capable of being expressive of such an intention. In my opinion the circumstances do not necessarily rebut the inference of a seditious purpose which the words are capable of importing. It is open to the jury taking the words with the circumstances to infer that the supposition with which they begin was used as an occasion to make an appeal based upon class feeling to the workers of Australia calculated and meant to excite them to enmity and disaffection from the Sovereign and the Government of Australia and to promote feelings of ill-will and hostility between them and the rest of the Australian people so as to endanger the peace, order and good government of the Commonwealth. I think the last question should be answered: - Yes. (at p159)
9. I should remit the case to the learned trial judge with the abovementioned answers. (at p159)