Burns v Ransley

Burns v Ransley - [1949] HCA 45 - HCA 1949 case summary — Zoe

[11]

Two arguments were presented on behalf of the appellant. The first was that the words used by the appellant were not expressive of a seditious intention because they did not show any intention to excite disaffection against the Sovereign or the Government or Constitution of the Commonwealth for the reason that they referred only to a hypothetical contingency, and not to an actuality, namely, to the contingency of a war in which the King and the Commonwealth might be engaged against Soviet Russia. It was conceded that if words expressing an intention to fight and to urge others to fight against Australia were uttered while Australia was actually engaged in war they would be words expressive of a seditious intention. It was argued, however, that, because the words referred only to a possible future war, they were not seditious. In my opinion the hypothetical element involved in the statement does not in itself exclude the words used from the category of seditious words. Almost any statement referring to the future and applying to human action can be shown to involve a hypothetical element. The future is unknown, and any statement as to action in any future circumstances must necessarily depend upon the happening of particular circumstances. A statement that the view of the Communist Party is that Russia should be supported as against Australia and the British Sovereign in any war in which Australia, the Sovereign, and Russia may be involved is a statement which is presented as a policy to be approved and to be put into effect. Such a statement shows a present intention to excite disaffection against the Sovereign and the Government. "Disaffection" when used in relation to a Sovereign or a Government means not merely the absence of affection and regard, but disloyalty, enmity and hostility. In other contexts the word might have a different significance, but in the context of the Act there can be in my opinion no real question but that "exciting disaffection" refers to the implanting or arousing or stimulating in the minds of people a feeling or view or opinion that the Sovereign and the Government should not be supported as Sovereign and as Government, but that they should be opposed, and when the statement in question is made in relation to a war it means that they should, if possible, be destroyed. Such advocacy is encouragement of and incitement to active disloyalty. In my opinion the statements made by the appellant were expressive of a seditious intention.

[21]

The subject of the debate was "That Communism is not compatible with personal liberty." The appellant was one of two persons who represented the Communist Party and spoke on its behalf. The questions put to the appellant and his answers are already in statement and need not be repeated. I do not think that the fact that the words complained of were uttered in answer to questions or were based on contingencies or were hypothetical statements alters or affects the intention expressed by them. They were part of the debate and were made on the platform before the audience. The appellant was explaining the policy of the Communist Party and its attitude to the Sovereign and the Commonwealth Government if either stood in its way. In debating the subject his object was to make a favourable impression on the audience and convert them to the acceptance of the policy of which he was the exponent. Moreover in his reply during the debate he said: "If Australia was involved in war it would be as a result of wrong policy. Being wrong policy the Communist Party could not subscribe to it." The appellant appears to have considered that his utterances were seditious because in answer to a question "If you made a seditious statement in Russia such as you have made here tonight, would you walk out of here a free man as you most probably will do or would you be gaoled?", the appellant replied: "I think I will be a very lucky man if I do not see the inside of a capitalist gaol within the next ten years." This remark has some bearing on his intention. The substantial question then is the meaning of the relevant words in the light of the sections of the Act. Disaffection connotes enmity and hostility, estranged allegiance, disloyalty, hostility to constituted authority or to a particular form of political government. "Excite" means to inspire, infect or inflame disaffection. And "intention" signifies design, purpose or object. In short the utterances in question were designed to inspire or kindle hostility against the Sovereign and the Government of the Commonwealth.

[26]

The facts upon which the conviction is founded can be briefly stated. On 15th September 1948 in the Temperance Hall in Edward Street, Brisbane, before an audience of 200 people, a debate was held between two representatives of the Queensland People's Party and two representatives of the Australian Communist Party. The question chosen for debate was whether Communism is compatible with personal freedom. The appellant was one of the two representatives of the Australian Communist Party. Each debater spoke for fifteen minutes. At the conclusion of the debate the chairman invited or permitted questions from members of the audience. This was part of the evening's programme. A number of questions was asked. Among them was a question to the appellant - "If the Communists gained control in Australia what would be the position of the monarchy?" The appellant answered - "The monarchy is all right. We have nothing against it. But if the Communists gained control in Australia and it was found that the monarchy was in the way, the monarchy would have to go." This answer is not the subject of the charge. It was given in evidence as part of the context of the answer given by the appellant to the question he was next asked and that answer is the subject of the charge. The question was asked - "We all know that we could become embroiled in a third world war in the immediate future between the Western Powers and Soviet Russia. In the event of such a war what would be the attitude and actions of the Communist Party in Australia?" The first answer given to this question by the appellant was - "If Australia was involved in such a war, it would be between Soviet Russia and American and British Imperialism. It would be a counter-revolutionary war. We would oppose that war. It would be a reactionary war." The questioner then demanded what he called a direct answer to the question. At this the appellant grasped the rostrum, leaned forward and said loudly and emphatically - "We would oppose that war: we would fight on the side of Soviet Russia. That is a direct answer."

[35]

The substantial question upon which the appeal depends is whether the appellant did, by the words made the subject of the charge, convey an intention to effect the purpose of exciting disaffection against the Sovereign or the Government or Constitution, whether of the Commonwealth or of the United Kingdom. This is, in my opinion, a question of fact. It is a question of fact upon which we are bound to form our own judgment. For this is an appeal by way of rehearing and, like other appeals, it is an appeal upon law and fact (see Wishart v. Fraser [1] and the authorities there cited). But although it is a question of fact it is important to see exactly what the question is. It is even more important to see what it is not. It is not a question whether, if the appellant were, in the event of war, to pursue his threatened course of action, it would amount to a treasonable adherence to the King's enemies. It is not a question whether he expressed an intention, although an intention depending on a contingency, to act in a manner exhibiting disaffection on his own part against the Crown and the Government of the Commonwealth and of the United Kingdom. It is not a question whether his words showed himself, as he stood before the audience, to be a disaffected person. The question relates to a purpose of exciting disaffection in others. It must be a purpose of exciting in others disaffection against the Crown, the Government of either country, or the Constitution. His present intention of effecting that purpose must be conveyed by his words. It must be conveyed by the words made the subject of the charge, namely, those relating to the contingency of war with Russia, not by his reference to the monarchy. That reference, however, would not support the charge. Further, his words must be understood in the light of the circumstances in which they were uttered. For "the character of every act depends upon the circumstances in which it is done," per Holmes J.: Schenck & Baer v. United States of America [1] .

[37]

Now it is clear enough that the question put to the appellant was concerned, not with the sovereignty of the Crown, not with the authority of the Government or of the Constitution, but with the attitude of the appellant, as a communist, or of his party in case of war with Russia. He confined his first answer itself to condemning such a war and expressing his party's opposition to it. It is difficult to believe that by this he conveyed any intention on his part of endeavouring to influence the attitude of his audience towards the Crown or the Government. He had not volunteered the statement. The attitude of his audience to the Crown or the Government was, I should think, not within his contemplation. When the question was repeated and a more categorical reply was insisted upon, his answer and the manner in which it was delivered seem to have exhibited a resolve to state his own sentiments without reserve. But there is no indication of any desire to persuade his audience of anything but his own conviction about the course his party would take if a war with Russia occurred. His answer is a disclosure of his own views actuated by the persistence of his questioner; not an active attempt to effect a purpose of causing his listeners to adopt an attitude of mind. But supposing that by his answer he did wish to influence opinion as to the side that should be taken in the contingency of a war with Russia. The attitude towards the Crown or the Government of persons whose opinion might be so influenced would be only indirectly and consequentially involved and would not be within the immediate and substantial purpose which the supposition would ascribe to the appellant. His mind and his words were devoted to a contingency. It was spoken of as an hypothesis, an hypothesis involving a dilemma. He was not addressing himself to the subject of attachment to or estrangement from constituted authority. Enmity, antagonism, disaffection against government or the Constitution was not the purpose of the question or the reply.

At a glance

Court

Decision date

Before

Source

Judgment (48 paragraphs)

Parties