R v Sharkey
(1949) 79 CLR 121(Judgment by: WILLIAMS J)
Between: THE KING
And: SHARKEY
Judges:
Latham CJ
Rich J
Dixon J
McTiernan J
Williams JWebb J
Subject References:
Constitutional Law (Cth.)
Judgment date: 7 October 1949
Melbourne
Judgment by:
WILLIAMS J
I would answer the first question of law reserved for the opinion of the Full Court under s. 72 of the Judiciary Act 1903-1948 in the negative and the remaining three questions in the affirmative. (at p159)
2. Sections 24A, 24B and 24D of the Crimes Act 1914-1946 are, in my opinion, a valid exercise of the constitutional powers of the Commonwealth Parliament. The only provision as to the validity of which I have any doubt is s. 24A (1) (g) which provides that an intention 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, is a seditious intention. The difficulty is to determine what is meant by the Commonwealth. If it means the Commonwealth as a geographical unit, the provision would be too wide because laws directed to prevent the promotion of ill-will and hostility between different classes of His Majesty's subjects would fall within the sphere of State legislative power except to the extent to which the promotion of such feelings could detrimentally affect the exercise of the executive legislative or judicial powers of the Commonwealth.
But the word "Commonwealth" is capable of meaning the Commonwealth as the body politic in the sense in which it is used in the Act to constitute the Commonwealth of Australia. I am of opinion that this meaning should be given to the word in s. 24A (1) (g) of the Crimes Act. The words "so as to endanger the peace, order or good government of the Commonwealth" then limit the generality of the preceding words and confine the seditious intention to an intention 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 as a body politic. One of the functions of the Commonwealth as a body politic is that conferred upon the Commonwealth Parliament by s. 51 (vi.) of the Constitution to make laws for the peace, order and good government of the Commonwealth with respect to defence. The words uttered by Sharkey are capable of meaning that in a war between the British Commonwealth and its allies and Soviet Russia, the former would be the aggressors and Australian workers would be on the side of the latter and would welcome Soviet troops if they entered Australia in pursuit of the troops of the British Commonwealth and its allies. Such a statement could plainly be intended to promote feelings of ill-will and hostility between different classes of His Majesty's subjects so as to endanger the defence of the Commonwealth. (at p160)
3. I feel some difficulty on one aspect of the summing-up about which no question has been asked. His Honour told the jury that they could convict Sharkey if they found an intention to effect any of the purposes in s. 24A (1) (b), (c), (d) or (g). Only those purposes of which there was reasonable evidence should have been left to the jury. The words uttered by the accused were most reasonably capable of being evidence of an intention to effect the purpose in (g) and his Honour so directed the jury. The question is whether the words uttered were reasonably capable of being evidence of an intention to effect the purposes in (b), (c) and (d). On consideration I am of opinion that the words were so capable. They were not uttered with respect to a possible war between Soviet Russia and the Commonwealth alone, but with respect to a possible world war between Soviet Russia and the British Commonwealth and its allies. It is for the Sovereign to declare such a war but His Majesty or his representative would only do so in conformity with the wishes of the Governments and Parliaments of the United Kingdom and Dominions. To say that in such a war the United Kingdom and the other Dominions, in addition to Australia, would be aggressors and Soviet troops pursuing the troops of such aggressors into Australia would be welcomed by Australian workers would be reasonably capable of being evidence of an intention to effect the purposes defined in (b), (c) and (d). (at p160)
4. In these circumstances it is unnecessary finally to decide what the duty of this Court would be where, on the materials before it, it appeared that the trial had miscarried in a matter not covered by the questions. As at present advised I have no doubt that the powers conferred upon the Court by s. 73 of the Judiciary Act are ample to authorize it to consider such a matter and make an appropriate order, with or without going through the formality of sending the case back to be amended or re-stated. (at p161)