Opinion Number. 1379


Proceedings in respect of newspaper publication
possible proceedings in respect of letter published in ‘Labor daily’ newSpaper, sydney: purported letter from british fascists to capt hatcher, mercantile marine office: prospects of proceedings for forgery: prospects of proceedings for defamation

Key Legislation

Crimes Act 1900 (NSW) ss 250, 252

The Minister for Trade and Customs

The Minister for Trade and Customs desires advice as to whether it is possible for successful action to be taken by any person interested and/or the Government against the editor of the Labor Daily Newspaper in respect of the letter published in that newspaper on the 11th November, 1925, purporting to be from the Secretary of the British Fascists to Captain J. Olden Hatcher, Mercantile Marine Office, Melbourne.

The letter, omitting formal parts, reads as follows:

Your very interesting letter to hand regarding the progress of Fascismo in Australia.
It is pleasing to learn that your Federal Government has been assisting in initial organisational work.

The Supreme Council notes that the Movement has been launched in six states of the Commonwealth.

At the present time Australia appears to be urgently in need of resourceful Fascist groups in all centres with a resourceful inner council in command.

Weak and vacillating governments make Fascismo a political and social necessity. Such were responsible for its coming into being in Italy and also in England.

Had the McDonald Government remained in office here we would have been required to forcibly drive it from office.

Our present Chancellor of the Exchequer, Mr. Austen Chamberlain, said, ‘Were Labour returned with a working majority it would be necessary in the interests of the nation to suspend constitutional government and forcibly prevent it from assuming office.’

Fortunately the last elections made the position safe in England, but in Australia the position is different. Labour is in power in four states and our experience has been such that almost any means would be justified in preventing it from ruling Federally.

If necessary steps should be taken to precipitate open hostilities with the militant unions. Open rioting would give us an opportunity to smash the unions and cripple Labour politically. In this we have the definite assurance that the present Federal Government would co-operate and will secretly instruct its officers to work in conjunction with our forces.

You need have no fear therefore. Use your force to prevent Labour from assuming office should a Labour victory at the polls eventuate.

Although the letter is referred to as a forgery it is not, in my opinion, a forged matter within the meaning of the Crimes Act 1900 of New South Wales, which appears to be the only statute to be considered in dealing with the question as to whether proceedings would lie for forgery.

Section 250 of that Act defines ‘forging’ as the counterfeiting or altering in any particular, by whatsoever means effected, with intent to defraud, of an instrument or document, or of some signature or other matter, or thing, or of any attestation, or signature of a witness, whether by law required or not, to any instrument, document or matter, the forging of which is punishable under the Act.

Section 252 provides that whosoever forges, or utters, any instrument or matter, the forging or uttering of which is not in the Act otherwise punishable shall be liable to imprisonment for two years.

Although the letter in question may be counterfeited it would not, I think, be held to have been counterfeited with intent to defraud. Defrauding, in my opinion, implies some material loss by the person defrauded and not merely a deception as to certain facts, matters or things.

I know of no other offence with which the Editor of the Labor Daily could be charged in respect of the publication. The Electoral Act contains no provision dealing with a publication of this character.

The only other question to consider is whether an action for libel would lie at the suit of any person, or whether the publication would support a prosecution for libel.

An action for libel will lie in respect of a statement, expressed in writing or some permanent form, which is calculated to expose a person to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his trade, business, profession, calling or office. (Halsbury, Vol. 18, page 656)

I assume that the Minister is not concerned about any person outside the Commonwealth. Insofar as the letter relates to any such person I will, therefore, express no opinion.

The only persons in the Commonwealth who might be affected by the letter are Captain Hatcher, the Members of the Ministry and members of the organisation. I assume that the Minister is not concerned as regards the rights of the latter class.

The tone of the letter implies that the British Fascists would, in order to obtain the objects of their organisation, resort to force or other unconstitutional measures.

The fact that the letter is addressed to Captain Hatcher, and purports to be in reply to a letter from him to the writer, leads to the inference that he is connected with
the organisation.

The second sentence of the first paragraph of the letter is practically a statement
that the Federal Government is favourable to the Fascist Movement, and the second
last paragraph implies that the Federal Government is desirous of ‘smashing’ the
militant unions.

The question then arises as to whether the imputations are calculated to bring the persons concerned into hatred, contempt or ridicule, or to disparage or injure them in their respective trades, businesses, professions, callings or offices.

In all cases the defamation would, in my opinion, have to be averred by innuendo. The innuendo would be, in the case of Captain Hatcher, that he was prepared to take steps to precipitate open hostilities with the militant unions. In the case of the members of the Ministry the innuendo would be that they were prepared to co-operate in any steps so taken by the organisation or its members.

I do not think that the innuendo would injure Captain Hatcher in his office, but he might, in my opinion, be thereby held up to hatred, ridicule or contempt.

As regards the members of the Government, it might be found that the innuendo was capable of injuring or disparaging them in their offices.

I am, however, of opinion, that although the words used appear to be defamatory, in view of the fact that no injury appears to have been suffered either by Captain Hatcher or the members of the Ministry by reason of the publication of the letter, the success of an action for libel brought by any of those persons would be doubtful, and even if an action were successful, the measure of the damages would be very small. I think, therefore, that it would be inadvisable for any such action to be brought.

As regards criminal proceedings, they will only lie if the libel tends to a breach of the peace by the person libelled. There appears to have been no such tendency in this case and, I think, therefore that criminal proceedings would be futile.

I am of opinion that it is not likely that successful action could be taken against the Editor of the Labor Daily in respect of the publication of the letter in question.

[Vol. 22, p. 424]