The Secretary, Postmaster-General’s Department, has forwarded to me for advice the following memorandum:

• Section 107 of the Post and Telegraph Act 1901–1923 provides that any person who knowingly sends or attempts to send by post any postal article which … has thereon or therein or on the envelope or cover thereof any words marks or designs of an indecent obscene blasphemous libellous or grossly offensive character, shall be liable to a penalty not exceeding one hundred pounds or to imprisonment with or without hard labour for a term not exceeding two years.

2. Hitherto offences against this section of the Act (i.e., where obscene, offensive, etc., matter has been enclosed in sealed missives) have been regarded as affecting private individuals and not the administration of the Department, and therefore the Department has refrained from instituting, or declined to institute, prosecutions, such action being left to the addressees or the police. A number of prosecutions have been thus instituted in the past and have resulted in convictions.
3. From the papers enclosed herewith it will be seen that at the Balmain Police Court on 14.10.1930 proceedings were instituted on the information of the addressee of a letter and a conviction was recorded against the sender, but that Judge Curlewis at the Sydney Quarter Sessions Appeals Court on 12.12.1930 quashed the conviction on grounds, submitted by Counsel for the appellant, of which the following is a summary:
1. The proceedings were not taken by or with the authority of the Postmaster-General or his deputy, as required by section 5 relating to the administration of the Act, and section 153 which provides for the delegation of authority to prosecute.
2. Any offence against section 107 is not against the individual to whom the letter is addressed, nor yet against the individual in respect of whom the offensive words are written, but the only offence which the section contemplates is an offence against the Department for using the Department for conveying matter which might be regarded as an offence to some person.
3. Complainant was not beneficially interested in the penalty and recovery could be effected only by the Crown and not by a private individual.
4. It will also be seen that as a result of the publication of the decision of the Court above mentioned application has been made to the Deputy Director, Posts and Telegraphs, Sydney, by a firm of solicitors for action to be taken in a case submitted by them.
5. It is likely that many such requests will be received not only from solicitors but from the Police and from private individuals. It is felt that if they are to be complied with the Department will be involved in a great deal of trouble and expense, and as it is understood that in such cases evidence is not easily obtainable and successful prosecutions are very difficult, doubtless in a large number of instances the trouble and expense would prove fruitless.
6. It would be much appreciated if you would furnish advice (a) whether it is incumbent upon this Department to institute proceedings under section 107 of the Post and Telegraph Act upon a request to that end being made by or on behalf of the addressee of a letter containing matter such as that referred to in paragraph (c) of the section, and (b) whether there are available to the addressee means by which he could secure redress outside the provisions of the Post and Telegraph Act.

Section 107 of the Post and Telegraph Act 1901–1923 is as follows:

107. Any person who knowingly sends or attempts to send by post any article which—

1. encloses an explosive or a dangerous filthy noxious or deleterious substance or a sharp instrument not properly protected or a living noxious creature or any other thing likely to injure other postal articles in course of conveyance or to injure an officer of the department or other person; or
2. encloses an indecent or obscene print painting photograph lithograph engraving book card, or article; or
3. has thereon or therein or on the envelope or cover thereof any words marks or designs of an indecent obscene blasphemous libellous or grossly offensive character,

shall be liable to a penalty not exceeding one hundred pounds or to imprisonment with or without hard labour for a term not exceeding two years.

In opinion dated 15/12/1902⁽¹⁾ the then Attorney-General advised on the question of prosecutions by the Department under section 107. He stated that, in cases such as this, where the offence is one which, though made punishable by a Commonwealth Act, affects private individuals and not the administration of the Department, it is not necessarily incumbent upon the Department to prosecute, but the matter may be referred to the police for such action as they think fit.

I do not agree with the decision of Curlewis, J., in the case referred to in the correspondence. Both Counsel and the Court appear to have overlooked the provisions of section 13 of the Crimes Act under which, unless the contrary intention appears in an Act, any person may institute proceedings for an offence against the Act. I do not think that it can be successfully contended that section 5 of the Post and Telegraph Act, which vests in the Postmaster-General the administration of the Act and the control of the Department indicates a contrary intention, within the meaning of section 13 of the Crimes Act.

The course which I suggest should be adopted in these cases is that where a request is made to the Department by the addressee of a letter for the institution of proceedings with respect to an alleged offence under paragraph (c) of section 107, the matter should be investigated by the Department. If the circumstances disclose that the offence is of a serious nature and that there is sufficient evidence available, it would appear desirable for the Department to prosecute in order to ensure that the case is satisfactorily handled. In cases where the Department, after investigation, decides not to prosecute, it is in my opinion open to the addressee to institute proceedings himself if he thinks fit, or to request the police to do so.

[Vol. 24, p. 917]

(1) Opinion [Vol. 3, p. 24] not published.