Pankhurst v Kiernan [1917] HCA 63

Pankhurst v Kiernan [1917] HCA 63 - HCA 1917 case summary — Zoe

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at Yarraville, did, contrary to the provisions of the Unlawful Associa- tions Act 1916, encourage the injury of property. Evidence was given that at a meeting at Yarraville at which about 2000 persons were present the defendant made a speech in the course of which she said :

Do you realize that throughout the world they have made in excess profits of war twenty millions for the last three years. They can easily stand a strike ; it does not matter if they do lose a few millions now. As far as we are concerned the Government does not care a bit; we had to adopt other methods ; you saw the results of it last night. Panes of glass smashed, - anyway glass windows have got no feeling whatever. Now, friends, if we can hold out we feel we have the Government in a cleft stick. The Government has got to keep order; the business people won't stand much of it. Well, Mr. Hughes thought that, if they got rid of me, there would be no more of it. The very fact that the people know that they are going to get rid of me is stirring them up to more efforts. It is quite obvious, men, that I did not do £5,000 worth of damage myself, even if I am a very dangerous person. Mr. Hughes says he is going to use a firm hand. I do not think they are going to do all they say ; still this cannot go on without some notice being taken. There was £5,000 worth of damage done, and five persons arrested. One person for every £1,000 worth of damage. Supposing he does send some of us to gaol, there will be others to take their places, and it will take a year or two to build gaols to hold us. They may bring out the military ; we know perfectly well they can call the military out. We are going to have another demonstration on Monday night next. They may call out the military then. But who are the military? Your sons and husbands, your brothers. Mr. Hughes knows if he calls the military out the chances are they would shoot the other way. Supposing he got some of them to do it, what would happen to the country ? Do you think they would get more troops? Where do they get the recruits from, friends? The working-class people. Now, if they shoot the working man, they cannot expect him to shoot for them. If it were asking for some- thing that we were not entitled to, it would be different. But we only ask them to do what they should do: reduce the price of food to the people of this country. Whilst the people are suffering, they

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during time of war, and even during time of peace, for the Common- wealth can act under the defence power in time of peace in regard to a prospective war as well as in time of war. The Commonwealth Parliament may enact a rule of conduct which is referable to defence, and may give to a military officer a discretion to be exercised on some basis referable to defence to punish persons who offend against such a rule of conduct. But it is beyond the power of that Parlia- ment to enact a rule of conduct which may or may not be referable todefence. The Parliament may prohibit the encouragement of the destruction of property which is useful for military purposes, but it cannot prohibit the encouragement of the destruction of property generally, for that may include property which is not and cannot be useful for military purposes. The defence power is one the limits of which can be defined by this Court. In the case of any particular exercise of power which is sought to be brought under the defence power, this Court must be able to say that such an exercise of power is capable of aiding the defence of the Commonwealth. The power cannot extend to a general power to make laws for the peace, order, and good government of the Commonwealth. It is not suffi- 'cient to bring a matter within the defence power that Parliament should say that it is necessary for defence. This Court has to inquire whether the particular matter is capable of referring only to the defence power. he preservation of property generally cannot be within the defence power unless property be regarded as wealth, and, if that view be adopted, then every effort which tends to produce wealth is of necessity capable of being used for defence, and so can be regulated by the Commonwealth Parliament. In Farey v. Burvett (1) the majority of the Court held that the defence pewer is limited to the regulation of things which can have an effect on the prosecution of the War, and that on the facts of that case the regula- tion of the price of bread in particular localities could possibly have such an effect. [Counsel also referred to In re a Petition of Right (2).]

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people. This speech was reported in shorthand by Constable MeL who attended the meeting in company with the respondent. said that the meeting was called for the purpose of assisting the dependants of men affected by the industrial upheaval ; that, 80 far as he knew, no one as a result of the speech destroyed any pro- perty ; and that the part of the speech he put in evidence was only a small part of what the speaker said. That which was put in dence was the transcription of the shorthand notes and the no themselves. The respondent also took shorthand notes, which put in evidence. These were not transcribed, nor was there an} cross-examination upon them except that it was elicited that his shorthand notes were not identical with those of the previous wit because he missed more and was only able to write sentences and there. That, with the speech, part of which I shall quote, the whole of the evidence for the prosecution, and no evidence was called for the defence of the applicant. The case of R. v. Most (1) was cited, in which the Court for Crown Cases Reserved sustained a conviction under 24 & 25 Vict. ¢. 100, sec. 4, for a criminal libel by which the defendant (énter alia) e deavoured to encourage, &c., the commission of the crimes assassination and murder. The case was cited only for the purpo of quoting some words in the judgment of Huddleston B., i which he gave to the word " encourage " in the section this meaning: "To intimate, to incite to anything, to give courage to, to inspirit, - to embolden, to raise confidence, to make confident." 'The applicant's speech cannot be read without perceiving that it was an encourage ment, within the meaning of the words quoted, of the injury property. But those words are not a statutory, nor in any s an exhaustive, definition, The word " encourage," indeed, is plain enough, and needs no definition. The applicant suggested, and tried to induce, the continuance of window-breaking. She showed her approbation of - nay, her exultation in - the doing of damage to (L) 7 Q.B.D., 244.

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Act " with respect to" the defence of the Commonwealth - defen from the foreign enemy and his adherents? The property in ques tion is not even property of the Defence Department. No di every good thing that we get under our internal policy contrib to the strength of the nation against aggression. Civie peace co tributes ; but so do good sewerage, good education, a good tramy y system. But Acts on these subjects are surely not Acts "y respect to . . . the naval and military defence of the Common wealth." The connection is too indirect and remote. But the respondent relies on the decision of this Court in the of Farey v. Burvett (1). In that case it was held that the Precautions Act 1914-1916 was valid in so far as it provided (thro governmental regulation) limits for the price of bread in cer populous localities. Defence is a matter of foree - force to be against the enemy ; and if that force is likely to be diminished by scarcity of bread, by excessive prices of bread, or dissipated in riots which so commonly accompany the want of bread, it may be a defence measure to keep the price of bread low. As in thee of a besieged city it may well be necessary or expedient, for purposes of defence, to provide for sufficient food for all the inh tants, and at fixed prices. Moreover, the very sub-section of the War Precautions Act which gave the power to make regulations fixing prices (sec. 4 (1a) ) specified '' the more effectual defence the Commonwealth " as an object to be aimed at by the regulati In short, Parliament treated the fixing of prices as conducing to the defence of the Commonwealth ; and, in my' opinion, we are bo to accept the statement of Parliament that it does so conduce unless we can see that the statement is obviously untrue or absurd. Parlia- ment in the Bread Case (1) legislated expressly " with respect to" defence. It is not for us, it is for Parliament, to say whether measure is effectual or futile, wise or unwise ; it is not for us to to evidence as to the necessity of the measure under the cire stances. It so happens that, before the passing of the Act now question, the wharf labourers of Melbourne had refused to load shij with flour destined for Great Britain and our Allies until the pt of bread here should be reduced. They were persuaded to aband

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Court

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Before

Source

Judgment (91 paragraphs)