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[1912] HCA 61
High Court of Australia
1912-07-01
Original judgment source is linked above.
Solicitors, for the appellants, Hedderwick, Fookes & Alston. H- ©. oF A.
a8 as 1912. Solicitor, for the respondent, C. Powers, Crown Solicitor for
the Commonwealth. 'Meaeiouenes BL, STPAMsurr
ON APPEAL FROM A COURT OF PETILY SESSIONS OF VICTORIA.
vs Parliamentary Election (Commonwealth) - Politicat article in newspaper. during
election - Signature of author - Validity of Commonwealth legislation - The H.C. oF A.
Constitution (63 & 64 Vict. c. 12), secs, 10, 51 (axxvi.) - Commonwealth 1912.
Electoral Act 1902-1911 (No. 19 of 1902 - No. 17 of 1911), sec. IS1Aa. ~ - ss Mi INE, 'The Counonwealth Parliament has power under the Constitution to make oak: 5 laws regulating federal parliamentary elections, and, therefore, see. 1814a of the Commonwealth Blectoral Act 1902-1911 is within the powers of the Com- Grifith ©.., i. Barton and monwealth Parliament to enact. Aone
Decision of Court of Petty Sessions of Victoria affirmed.
At the Court of Petty Sessions at Melbourne on 27th June 1912 an information was heard whereby Ryton Campbell Old- ham, Chief Electoral Officer for the Commonwealth, charged that Robert Murray Smith, Roderick Murchison, Edward Fancourt Mitchell, Edward Fanning, Lauchlan Charles Mackinnon and William George Lucas Spowers, the editors of The Argus news- _ paper, on 3lst May 1912, did, contrary to the Commonwealth Electoral Act 1902-1911, after the issue, and before the return, of
a writ for the election of a member of the House of Represe tives for the Division of Werriwa, permit in The Argus publication of an unsigned article commenting upon certain didates offering themselves at such election and upon certain political parties. The writ in question was issued on 6th M 1912, and its return was announced to the House of Represe nt tives on 19th June 1912. The only defence taken was tl section 18144 of the Commonwealth Electoral Act 1902-1911 wa unconstitutional.
The Police Magistrate before whom the information was h having convicted the defendants and fined each of them £1, appealed to the High Court by way of order to review, on ground that sec. 1814 (2) of the Commonwealth Electoral A 1902-1911 is beyond the legislative power of the Parliament the Commonwealth. 3
Mitchell K.C. and Irvine K.C. (with them Duffy KC. a McArthur K.C.), for the appellants. The power to legislate as Commonwealth elections is contained in secs. 10 and 51 (xxxvi.) of the Constitution. That power must be confined to legislation to the conduct and control of elections, but sec. 18144 relates ni to the conduct and control of elections but to the conduct and control of newspapers. The conduct and control of newspap are within the reserved powers of the States. Sec. 180 is on different footing. Its purpose is to identify the person who is responsible for the publication of the particular matter so that he may be made liable for misrepresentations. Such a pro- vision is unnecessary in the case of newspapers. The pow intended to be conferred on the Commonwealth Parliament is similar to that conferred by the Victorian Constitution Act, se xxvii. viz., a power to legislate for "the orderly effective and impartial conduct" of elections. [They referred to Lord Hals bury's Laws of England, vol. xt, p. 135.] The object of see 188, is to control the means by which the electors may info their minds as to which of the candidates they shall vote fo If the power is wide enough to cover sec. 18844, then a simila section without the limit as to time would be within the powe The right of newspapers to refuse to disclose the names
_ writers of articles is recognized in the Courts of law with regard H.C. or A.
to interrogatories. If the means by which electors are informed as to the candidate for whom they should vote may be controlled by the Commonwealth Parliament, the use of these means may be prohibited altogether. The object is to get the opinions of the electors properly recorded without fraud, undue influence or violence. It is of the essence of representative government that the electors should themselves be the judges of the means by which they form their opinions, and a power to regulate and ~ eontrol elections cannot extend to the regulation of the channels through which the opinions of the electors are formed. Legisla- tion which goes beyond securing the complete free collection of the opinions of the people and which seeks to limit the materials from which those opinions are derived is not legislation as to elections. Fraud stands on a different footing. It is a wrong _ in itself and immediately affects the conduct of an election. If _ see, 1814 is within the power, the power extends to any time and to all forms of communicating information or opinions as to political matters. The power is a limited one, and the only question is - Where is the limit? A State Parliament could pass alaw requiring all newspaper articles to be signed, and, if such a law existed, the Commonwealth Parliament could not enact _ that between the issue and return of a writ for a federal election articles dealing with political matters need not be signed.
Weigall K.C. (with him Latham), for the respondent, was not ~ ealled upon.
Grirrita C.J. Notwithstanding the very careful and able argument of Mr. Mitchell and Mr. Irvine, I am unable to enter- _ tain any doubt in this case. The question is whether sec. 181Aa of the Commonwealth Electoral Act, which became law last year, is within the powers of the Commonwealth Parliament. The section provides that - *(1) On and after the date of issue and
: before the return of any writ for the election of a member for
_ the Senate, or for the House of Representatives, or for the taking
of any Referendum vote, every article, report, letter, or other
"matter commenting upon any candidate or political party, or the VoL. xv. pry
issues being submitted to the electors, printed and published ; any newspaper, circular, pamphlet, or 'dodger, shall be signed the author and authors, giving his or their true name and addres or names and addresses at the end of the said article, report, let or other matter." The second paragraph imposes a penalty o newspaper proprietors who permit a breach of this provision. It is contended that this enactment is beyond the power of th Federal Parliament. It is not disputed that that Parliament has power to make laws for the regulation of federal elections. In my opinion that power is an exclusive power. 'The matter is one in which the States as such have no concern. Perhaps, "regulation of elections" is an inexact term. What is really meant is regulation of the conduct of persons with regard to elections. The main object of laws for that purpose is, I suppose, to secure freedom of choice to the electors. Incidental to the freedom of choice is th prevention of, amongst other things, intimidation and undu influence. It has been not uncommon, for the last half century at least, to make provision in electoral laws requiring adverti ments, pamphlets and other election literature to bear the name of the printer and of the person by whose authority it is issued. Such a provision is to be found in sec. 180 of this Act, which not in an unusual form. We are not concerned, of course, with the motives of the legislation, or with its wisdom, but only vw the power of Parliament to enact it. It is a notorious fact many persons rely upon others for their guidance, especially i forming their opinions. It is obvious, therefore, that the freedo of choice of the electors at elections may be influenced by weight attributed by the electors to printed articles, which weigh may be greater or less than would be attributed to those arti if the electors knew the real authors. It was contended that, electors should be allowed to form their own opinions from abstract arguments addressed to them, irrespective of the pers by whom those arguments are put forward. But it is notorious, again, that many electors are unable to do so, and rely upon authority ; and they may be less likely to be misled or unduly influenced if they know the authority upon which they are as to rely. Parliament may, therefore, think that no one should allowed by concealing his name to exercise a greater influ
than he could command if his personality were known. It is H.C. oF A
impossible to say that an enactment to that effect is not an enactment regulating the conduct of persons in regard to elections. Newspapers have in this respect, just as they have under the law of libel, no greater privileges than ordinary individuals.
For these reasons I think that the section attacked is within the power of the Commonwealth Parliament to enact, and that this appeal must be dismissed.
Barton J. The enactment brought into question in this ease is contained in sec. 181AA (2) of the Commonwealth Elec- toral Act. As that sub-section can be more clearly understood in connection with the first sub-section, I will read both : - [His Honor read the sub-sections and continued : ]
It is under sub-see. 2 that the proprietors of the Argus, a daily newspaper in Melbourne, have been fined for the publication of articles not signed as the enactment requires, commenting on an election to the House of Representatives for "the district of Werriwa. The comments were in respect of the candidates and the political parties engaged in the election, and the issues sub- mitted to the electors. It is objected that this legislation is not _ within the powers conferred upon the Commonwealth Parliament
by the Constitution. What are those powers? First, there is _ sec. 10 of the Constitution. Then, sec. 51 gives power to the _ Federal Parliament to make laws for the peace order and good government of the Commonwealth with respect to - *(xxxvi.) Matters in respect of which this Constitution makes provision until the Parliament otherwise provides." Turning to sec. 31 of the Constitution, it provides that "until the Parliament otherwise _ provides, but subject to this Constitution, the laws in force in each State for the time being relating to elections for the more : numerous House of the Parliament of the State shall, as nearly _ as practicable, apply to elections in the State of members of the
House of Representatives." No power was given to any State _ tomake laws with regard to federal elections, but existing State ; Jaws as to State elections were made applicable to federal elec-
tions during the time which necessarily intervened before the "Federal Parhament could legislate on the subject. 'That is all.
H.C. or A. Since the Federal Parliament has legislated upon the subject i
legislation relating to elections has displaced that of the S
vided, and the only authority that can legislate upon the subj is the Parliament of the Commonwealth. That being so, it becomes essential to inquire what. is the meaning in see. 31 | the Constitution of the words " relating to elections." Do they 'mean the conduct of elections in its official aspect only? Cle that would be too narrow a construction for the term, and n not be further considered. Do they mean, in addition to conduct of elections in that aspect, their conduct in respect of the prevention and punishment of misconduct of one kind or another in connection with elections? They must include thos particulars, otherwise the elections of the Commonwealth could not be safeguarded by Statute with respect to such matters as bribery, treating, undue influence and other matters which had been the common subject of electoral legislation before the Com- monwealth was established. Those being admitted subjects of legislation, the further question arises whether this statutory provision now challenged is a law relating to elections to the Federal Parliament. It certainly is a law dealing with the con- duct of citizens as affecting elections. It may be pointed out if the publication of articles and comments dealing with the isst and the candidates at federal elections cannot be made the sub of legislation by the Commonwealth Parliament under some or more of its powers, it cannot be made the subject of legislati at all, unless legislation upon that subject could be made by the States. But that would mean that the States individually would have power to make laws, necessarily diverse, so regulating conduct of their citizens (who are at the same time citizens the Commonwealth) as to influence the course of those electii according to the policy of the particular State. Surely the p position that States have and the Commonwealth 'has not power to deal with the conduct of citizens in respect of fede elections is too grotesque to be entertained. If then the Parlit ment of the Commonwealth cannot legislate upon a matter of
this sort there can be no legislation upon it at all. But that we H.C. or A.
cannot say, for the Constitution in the distribution of powers between Commonwealth and States embraces the whole range of legislative authority within the territorial limits of Australia. And as it is plain that no State can deal with the conduct of citizens of the Commonwealth in respect of federal elections, the _ power must reside in the Commonwealth. We are asked, how- -eyer, to regard the enactment as dealing with the conduct of the press, a subject within the competence of State legislation. It certainly does deal with the conduct of the press, but in relation to federal elections only. It deals with it as the conduct of a 5 body of citizens whose actions may, and often will, affect the result and issues of federal elections. No State has anything whatever to do with such a subject as that. We are brought back then to this conclusion that, if there is to be any legislation upon a subject of this kind, there is no legis- lature in Australia other than the Parliament of the Common- wealth that can effectively legislate. Is it then to be said that there is no power to legislate at all? I have already pointed out the reason why that idea cannot be entertained. But, if it cannot be entertained, then there must be some authority having the power, and the only authority is the Parliament of the Commonwealth. _ I need scarcely declare, after what I have already said, that I consider the section is in the strictest sense a law relating to
clearly within the Constitution and that the appeal must be dismissed.
_ Isaacs J. read the following judgment : - The validity of sec. 18144, so far as its provisions affect the appellants, is contested on the ground that these provisions regulate the conduct of news-
papers and not federal elections. In truth, they regulate t conduct of newspapers, but only in so far as it concerns federy elections. Control of the subject matter of federal election would be meaningless unless it implied control of persons relation to such elections.
Secs. 31 and 10 and sub-secs. (xxxvi.) and (xxxix.) of sec. of the Constitution empower the Parliament to legislate y reference to parliamentary elections and all matters incide: But, say the appellants, the challenged provisions are neither direct object of the power nor matter incidental. The rea given is that the object and the only object of an election is | get a formal registration of the actual opinion of each elector. without regard to the way in which that opinion has been formed
So far as concerns the mechanical process of election that is true enough ; but to confine the power of the Parliament to supervision of the mechanisin is to neglect the vital princi behind it. The vote of every elector is a matter of concern to the whole Commonwealth, and all are interested in endeavouring secure not merely that the vote shall be formally recorded in accordance with the opinion which the voter actually holds, free from intimidation, coercion and bribery, but that the voter sl not be led by misrepresentation or concealment of any mat circumstance into forming and consequently registering a politi judgment different from that which he would have formed registered had he known the real circumstances.
So far from the latter consideration being foreign to the subject of election, it is of the first importance. For an opinion into which a man has been tricked or misled, even innocently, is a double wrong. It means not merely a loss to the side on whic he would otherwise have cast the vote, but it also strength their opponents.
It is admitted that the Parliament can forbid and guard against fraudulent misrepresentation. It would shock the conscience to deny it. On what ground can so much be conceded, unless bt cause it is an incidental power to protect the voters from inten! deception ?
But the public injury, so far as political results are concerne is as great when the opinion of the electorate is warped by reck-
less, or even careless, misstatenients, as when they are knowingly H: ©. or A.
untrue; in each case the result is falsified, and therefore the mischief may be equally provided against if Parliament thinks
fit. Even when nothing is conveyed but advice or opinion, the
identity of the person proffering it, if not withheld, might for various reasons seriously affect its value and weight in the minds 'of the electors. The testimony of a witness in a Court of Justice might be differently appraised if his true personality were undis- closed, or if, on the other hand, his interest, his experience, and, possibly, his past career, were placed before the jury.
Not less important may be the personality of those who by the most extensive and effective means known to society disseminate in a great national controversy their assertions of facts, opinions, and advice, for the very purpose of influencing the result. We have here to consider the question of power merely, not expedi- eney, and whether it be advantageous or not to enact this law, is beyond our province to discuss. It is, of course, conceded the Commonwealth Parliament has plenary power over federal elec- tions. But plenary power is incapable of restraint; and it is a mere lip loyalty to principle, if, while acknowledging the doctrine, it be assiduously sought to defeat its application. The limits of plenary power end only with the subject matter in respect of which it may be exercised. If the purity and reality of elections be within the ambit of the power, if in the public interest the electors may be protected from the open assaults of force and threats and corruption, it is impossible to exclude the right also to guard them against the more insidious, and, in many respects, the more dangerous form of winning their assent by acts appar- ently fair and disinterested, but which may be so only on the surface.
If, then, there were nothing in the nature of precedent, the reason of the matter would be sufficient to sustain the enactment. But there is abundant precedent, and as the question arises on the construction of an Imperial Act - the Constitution - I confine myself to instances from Imperial legislation.
The Corrupt and Illegal Practices Prevention Act 1883, sec. 18, provides that " Every bill, placard, or poster having reference to an election shall bear upon the face thereof the name and
H. C. or A. address of the printer and publisher thereof," and the penalty for
contravention is a fine not exceeding £100. That section w repeated in 1884 with reference to municipal elections (47 & Vict. c. 70, sec. 14), and under its provisions arose the case of Alcott vy. Emden (1). The Court of King's Bench Division held the appellant lawfully convicted in respect of a bill which he caused to be printed in August respecting the respondent, who, July, was informally mentioned as, and was generally known to be, an intending candidate for the office of mayor in the followi November. Lord Alverstone C.J. said: - * The real misehi¢ intended to be struck at was publication without a sufficient indication as to who the real author was." He further held that. even the time at which it was printed made it not wrong for the magistrate to hold it had reference to the election. The rest the Court concurred. The nature of the penalty affixed nothing to the point. The substantial consideration is that for the better securing a true election the disclosure of authorship was. insisted on, Then in 1895 the Corrupt and Illegal Practices Prevention Act of that year (58 & 59 Vict. c. 40) added to the list of illegal practices. Any person who, or the directors of any body or association corporate which before or during a parlia mentary election, and for the purpose of affecting the return of - any candidate, makes or publishes any false statement of fact i relation to the personal character or conduct of the candidate, guilty of an illegal practice (sec. 2). As to this it is stated in Halsbury's Laws of England, vol. x11., p. 299 : - *'The false state-
a statement which is calculated to influence the electors." Belief _ on reasonable grounds is exculpation. By sec. 3 an injunction may be granted when such a false statement is made.
Again in 1908 an Act was passed to prevent the disturbance of public meetings. This Act makes it an offence to try to break up a lawful public meeting and fixes a heavy penalty. But it~ makes this special provision, that if the offence is committed at a political meeting held in any parliamentary constituency between the date of the issue of the writ and the date of the - return, it is an illegal practice within the meaning of the Corrupt
quite clear the Imperial legislature did not hesitate to connect all this class of legislation with elections, and to treat it as a legitimate means of fencing round the conduct of elections with desirable safeguards for the better exercise by the people of their right of parliamentary representation.
It is inconceivable that in Australia there exists no legislative authority competent to pass 'such a law. I said once before of another Statute (R. v. Barger (1) ): - "The power to pass such an Act must reside somewhere." Recently in the Colonial Sugar Refining Co. v. Attorney-General for the Commonwealth (2) 1 "quoted the words of Lord Loreburn L.C. in Attorney-General for Ontario vy. Attorney-General for Canada (3), laying down the same test. I will not now repeat those words; but in effect the Judicial Committee held that in a completely self-governing Constitution it is to be taken for granted a power naturally appertaining to the self-government conferred is contained some- where within it.
If then, the State does not possess the power, the Common- wealth must.
The subject matter of the present enactment is transparently beyond the competency of the State to control. It was the Con- stitution itself, and not the State Parliament, that applied even as an interim provision the State laws to federal elections. So it necessarily falls within the scope of the Commonwealth legisla- _ tive authorities to regulate those elections.
: I would only add if the appellants' argument were accepted as _ to the limited area upon which Parliament could legislate with respect to elections, a vast number of important provisions would __ have to disappear in company with the challenged section.
I quite agree that this appeal should be dismissed.
MESES Oe Dawe, CP iy See eee nt gst A de oe eee ee oe ae ey
Solicitors, for the appellants, Blake & Riggall. __ Solicitor, for the respondent, C. Powers, Crown Solicitor for the ' Commonwealth. j;
(1) 6C.LR., 41, at p. 101. (2) 15 C.L.R., 182, at p. 214. (3) (1912) A.C., 571, at pp. 583, 584.
and IMlegal Practices Prevention Act 1883. It therefore scems H. C. oF A.
Suirn
OLpHaM.