R v Sharkey

R v Sharkey - [1949] HCA 46 - HCA 1949 case summary — Zoe

[32]

Sharkey's statement was, as the evidence clearly showed, very carefully prepared. It was not made casually and without purpose. The jury could reasonably take the view upon the evidence that he intended and desired to present and recommend a policy involving disloyalty to Australia and so to excite disaffection, but to make his statement in such words as to create also a certain amount of confusion which could provide grounds for argument which might enable him to escape legal liability for what he was really doing. The jury could interpret the statement as meaning and as intended to mean that if Australia became involved in war with Russia, the workers ought to support Russia as against Australia. It was open to the jury to infer that the real intention and object of the accused was to excite disaffection under the guise of a statement with respect to a future event which he elected to describe as "very remote and hypothetical". The jury were entitled to take the view that if the event were honestly and sincerely regarded as "very remote and hypothetical" there could have been no reason for making the statement and that the real reason for making the statement was to excite disaffection, not only in the event of war between Australia and Russia, but also independently of and in advance of the actual occurrence of such a war. Intention - which is a matter of inference from words or conduct - is not by any means necessarily to be judged upon the face value of words used. The earnest advice of a pretendedly disinterested bystander to an excited crowd in possession of a victim "Don't duck him in the horse trough" can be interpreted, quite reasonably in some circumstances, as an incitement to the action which the speaker professes to discourage. The words spoken by Sharkey were uttered in March 1949 at a time of acute tension between Soviet Russia and powers with which Australia is most closely associated. The jury was entitled to take that notorious fact into consideration. The jury could, if it thought proper, reject as dishonest and insincere the references to the Soviet forces pursuing aggressors into Australia and to the permanently peaceful policy of Soviet Russia. The substance of Sharkey's statement could in my opinion properly be found by a jury to be that the Australian people should welcome a Russian invasion with non-resistance, because any resistance would amount to aggression. Such a policy would invite acceptance of conquest by a foreign power and would involve the repudiation of the whole existing legal and political organization of the Commonwealth, thus showing an intention falling within the description of each of the pars. (b), (c), (d) and (g) of s. 24A of the Crimes Act. In all these circumstances it should, in my opinion, be held that the words spoken were capable of being expressive of a seditious intention within the meaning of s. 24A (1) under each of the pars. (b), (c), (d) and (g).

[49]

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.

[52]

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 disaffection 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.

[54]

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 [1] , Cave J. commented upon the vagueness of the criterion. The summing-up of Deasy J. in the Irish case of R. v. Pigott and Sullivan [2] 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.

[57]

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. [1] ), 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.

[59]

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 [1] ). 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 [2] and Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. [3] , per Higgins J.). In Attorney-General for the Commonwealth v. Colonial Sugar Refining Co. [4] , 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 follows 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 [1] ). In In re Neagle [2] , 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 [1] , the justification of a Federal officer who has used force for the purpose is considered to arise under Federal law.

[64]

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.

[79]

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.

[82]

These are questions reserved under s. 72 of the Judiciary Act. The defendant Sharkey was indicted under s. 24D of the Commonwealth Crimes Act for uttering seditious words. He was tried in the Supreme Court of New South Wales before Dwyer J. and a jury and convicted, but judgment and sentence were postponed pending the determination of the questions reserved. The uncontradicted evidence for the prosecution disclosed that on 4th March 1949 a Crown witness named McGarry, a newspaper reporter employed by the Sydney "Daily Telegraph" newspaper, received instructions from the editor to endeavour to communicate with some representative of the Communist Party in Sydney in order to obtain a statement of the policy to be followed by local communists in the event of the invasion of Australia, following statements that had been made by Communist leaders in other parts of the world, and more particularly by the French Communist leader, Maurice Thorez, who had in the previous week made the statement that "If the Red Army came to France in pursuit of aggressors, the French workers would behave towards it as did the workers of Poland and Rumania." In pursuance of these instructions McGarry telephoned the defendant Sharkey, who was the general secretary of the Communist Party in Australia, and said "I would like to discuss Communist policy in Australia in the event of the invasion of Australia by Communist forces. Would you make a statement for publication?" Sharkey replied that it seemed to him that the invasion of Australia by Communist or other forces was a very hypothetical question and that there was no point in answering such a question. He added, however, that he preferred McGarry to call on him on the following day, that is, on 5th March 1949, when he would give a prepared statement. McGarry said that his newspaper had a policy of requiring its reporters to read back statements made by public men and that he would be prepared to read back any statement Sharkey might make as many times as Sharkey wished in order that Sharkey might make corrections. Sharkey said he would be prepared to make a statement on that understanding. McGarry then read to Sharkey the statement already referred to as having been made by Thorez, and then asked Sharkey whether he would agree to make a statement about the action or policy of local communists in the event of the invasion of Australia. Sharkey and McGarry conversed over the telephone for about fifteen minutes and McGarry took shorthand notes of the conversation. McGarry then said to Sharkey: "I will type a précis of this and read it back to you later." In a further telephone conversation McGarry read to Sharkey a précis of the statement. As he did so Sharkey altered some paragraphs and deleted others. McGarry re-typed the amended statement and in the last telephone conversation read the corrected statement to Sharkey ten or eleven times at Sharkey's request. Sharkey made slight alterations and, after it was read to him for the last time, said he was satisfied with it. In reply to a question by McGarry, Sharkey said he could speak for the other members of the Communist Party. The statement with which Sharkey said he was satisfied was as alleged in the indictment, omitting immaterial parts. The evidence for the prosecution also disclosed that an article appeared in the "Daily Telegraph" on 5th March 1949 headed " "Welcome" for Red Troops" and contained the substance of Sharkey's statement as alleged in the indictment, and that Sharkey admitted to a "Daily Mirror" reporter, Schackle, that he was correctly reported in the "Daily Telegraph" article. No evidence was called for the defence. The Crown Prosecutor submitted, and the learned judge in his summing up put to the jury for their consideration, that the words charged were "uttered" by Sharkey within the meaning of s. 24D and were expressive of an intention of the kinds specified in pars. (b), (c), (d) and (g) of s. 24A (1). He added: "These words expressive of an intention of promoting ill-will and hostility between different classes of His Majesty's subjects so as to endanger the peace, order and good government of the Commonwealth may be expressive of a seditious intention." Later in his summing up he asked the jury whether they considered that ill-will and hostility endangering the peace, order or good government of the Commonwealth were apt to be stirred up. Apart from asking them to bear in mind the arguments of counsel he made no further reference to the application of pars. (b), (c) or (d) of s. 24A (1): he gave the jury no indication of the reason why Sharkey's words might be regarded as being capable of being held to be expressive of an intention to excite disaffection of the kinds referred to in those paragraphs. He instructed the jury that the corroboration was required to be in a material particular and that Schackle's evidence could be regarded as such corroboration. Before us it was conceded by Mr. Paterson, counsel for Sharkey, that there was evidence of corroboration, as I too think was the case, and so this question need not be further considered. At the conclusion of his summing up the learned judge asked counsel whether they desired him to add anything, but neither counsel asked for any further direction or re-direction. However Mr. Paterson, as reported, had before the summing up submitted, "in view of the evidence and the circumstances under which they were uttered, if they were uttered, the words are not capable of being expressive of a seditious intention within the meaning of s. 24A." If the learned judge thought the words were not capable of being found to be expressive of a seditious intention within any of the pars. (b), (c), (d) or (g) it was his duty so to direct the jury and he was not relieved of that duty by the failure of counsel for Sharkey to ask for a further direction or re-direction after the summing up.

[83]

As to the validity of ss. 24A, 24B and 24D: there is, I think, much to be said for the view that there is a common law of Australia, including the provisions relating to sedition as they existed in English law when the first settlers came to this country (cf. R. v. Kidman [1] ). However, for the reasons given by the Chief Justice, I think the Commonwealth Parliament had power under paragraphs (xxix.) and (xxxix.) of s. 51 of the Commonwealth Constitution, to enact all three sections. Mr. Bennett, counsel for the Commonwealth, submitted that par. (vi.) of s. 51 also conferred power to do so; but I find it unnecessary to rely on the defence power, although that power may be wide enough to protect Australia against attacks in peace as in war, from within as well as from without, and against incitement to such attacks. If the defence power extends in time of war to the internment of any "dis-affected or disloyal" person without trial, as Lloyd v. Wallach [2] decided, it may appear reasonable to hold that the power authorizes the creation of an offence of sedition for the commission of which an offender may be tried and imprisoned on conviction after trial. In the course of the argument Mr. Bennett stressed the necessity for a power to nip in the bud the tendency to undermine the State, and the Chief Justice suggested that in order to protect the Government against violent overthrow it might be necessary to prevent the incitement of feelings that may lead to that. I agree. At all events it is for the Parliament to select the means of achieving legitimate ends and in so doing to be guided if it sees fit by the experience of centuries in creating an offence of sedition with changes to meet the existing legal and political organization of Australia, both internally and externally. The part of the Imperial Parliament in this organization plainly appears from the Act of Settlement and other legislation regulating the succession to the Crown of the United Kingdom under which Australia is associated with the United Kingdom and the other Dominions. as well as from the Commonwealth of Australia Constitution Act, and the Statute of Westminster and the Australian legislation adopting it. Pending lawful changes, the House of Lords and the House of Commons are essential parts of the political and legal organization of Australia. The power reserved to the Imperial Parliament to legislate for Australia, if so desired by Australia, is a sufficient indication of this. No one can say when it will be necessary to resort to this power. I emphasize more fully the position of the Imperial Houses of Parliament because Mr. Bennett, without assigning any reason for his attitude, would not press that the words uttered by Sharkey could be held to be expressive of any intention to excite disaffection against either House of the Parliament of the United Kingdom within par. (b) of s. 24A (1), although he submitted that otherwise pars. (b), (c) and (d) applied to these words, as well as par. (g).

[85]

Then as to the facts that the jury could find on the evidence: it was open to them to find that Sharkey was the general secretary of the Communist Party in Australia and spoke for its members; that he was asked whether he would make for publication in the "Daily Telegraph" a statement on Communist policy in Australia in the event of an invasion of Australia by Communist forces; that after consideration he agreed to do so, and then, after much deliberation, made the statement set out in the indictment, and that this was compiled from shorthand notes of what he said. I think the jury could find on this evidence that the statement contained words uttered by Sharkey. As to whether these words were, in the circumstances, expressive of a seditious intention, seeing they were used in reply to a request for a statement on Communist policy in the event of an invasion of Australia by Communist forces, the whole of the reply could be taken to bear on that policy, including the sentence, "If the Fascists in Australia use force to prevent the workers gaining that power Communists will advise the workers to meet force with force." This could be taken to reveal that the so-called Fascists were a numerous and powerful class of Australians and were identical with the aggressors, or some of the aggressors, referred to earlier in the reply, whom the Soviet forces would pursue. The repeated reference to "invasion" in this careful reply could be regarded as an intimation that the Soviet forces would come as enemies, and that if invasion occurred Australians would be the aggressors. The jury could also find that nothing had happened, or was likely to happen, in Australia, that warranted such a reply, but on the other hand they could attribute it to happenings in Europe in and about March 1949, including the Berlin blockade and the airlift to counter it, and the joint operations and activities of the nations opposing Russia in Germany, including those of the British Commonwealth, and to the association of Australia with that opposition, stigmatized as aggression against the Soviet. I think the jury could find that this reply was uttered with the intention of promoting feelings of ill-will and hostility of the kind specified in par. (g) of s. 24A (1), and, although the reply does not mention the Sovereign, or any House of Parliament, or Constitution, or Government, I think the jury could also find that a welcome to Soviet troops invading any part of the British Commonwealth in any contingency would be calculated to excite disaffection to the full extent set out in pars. (b), (c) and (d) and was so intended.

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