Opinion Number. 1495

Subject

Posts and Telegraphs transmission through post of grossly offensive publication: seditious political material:

Key Legislation

POST AND TELEGRAPH ACT 1901 ss 41, 48, 52, 107: CRIMES ACT 1914 ss 24A(1)(g), 30A(1), 30E

Date
Client
The Secretary, Postmaster-General

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

I am enclosing herewith papers relating to the destruction, by order of the Deputy Director, Posts and Telegraphs, Sydney, of a number of posted copies of an issue dated 28.8.1931 of a publication entitled ‘The Red Leader’ and described as the official organ of the Minority Movement — Australian Section of the Red International of Labour Unions. The Deputy Director states that the action was taken on the following advising given by the Deputy Crown Solicitor.

I am asked whether No. 2 issue dated Friday 28th August 1931 can be prevented from being transmitted through the post.

I have perused the issue especially the portions to which my attention has been directed by an officer of your Special Inquiry Office, and I am of opinion that the newspaper contains matter of a grossly offensive character (section 107 Post and Telegraph Act 1901–1923) and that under section 30A (1)(b), 30E and 24A(1)(g) it should not be transmitted through the post.

(Evidently sections 30A, etc., of the Crimes Act are referred to).

I refer also to sections 41, 48 and 52 of the Post and Telegraph Act. Under section 41(b) postal articles posted in contravention of the Act shall be transmitted to the GPO; under section 48 such postal articles may be opened and under section 52 may be destroyed.

The Deputy Director goes on to say that the articles were opened under the provisions of section 48 of the Post and Telegraph Act and destroyed under section 52 of that Act. It will be noted that ‘The Red Leader’ is not registered for transmission by post as a newspaper and that the copies under notice were posted as Printed Matter.

There appears to be room for difference of opinion as to whether there is undeniable legal sanction in the Post and Telegraph Act for the action taken, and I should be glad if you would kindly review the matter and favour me with advice in this regard.

A doubt is felt whether (with perhaps the exception of part of one article) the portions indicated in the Chief Inquiry Officer’s report of 10.9.1931 as justifying the action taken actually come within the ambit of the express provisions of the law. The exception referred to is that part of the paragraph on page 2 headed ‘Doping the Nit-Wit’ which reads ‘Only you can do that when you organise to smash the capitalist State’. It would appear that these words constitute an advocacy or encouragement such as is referred to in section 30A of the Crimes Act, and doubtless the Deputy Crown Solicitor had this in mind when he wrote the latter portion of paragraph 4 of his advising.

It is not clear, however, that the reaching of a conclusion by a Crown legal adviser is all that is necessary to enable the course provided for in section 30E of the Crimes Act to be legally pursued and advice on this point would be appreciated.

It will be observed that numerous protests have been made against the action taken by the Deputy Director and I should be obliged if you would be good enough to also suggest the terms in which the Department’s replies thereto should be couched, as well as the attitude which it would be advisable to adopt in the matter of payment of compensation to the publishers.

It has been deemed inadvisable to acknowledge the several letters received pending advice from you, and in these circumstances perhaps you would kindly cause the matter to be expedited.

In my opinion there are several parts of the periodical which are grossly offensive within the meaning of section 107 of the Post and Telegraph Act, and accordingly its retention and destruction in pursuance of the authority conferred by the Act was justified. The extracts headed ‘Doping the Nit-Wit’ and ‘Willie Wallows’ are included in my opinion among those matters which render the publication offensive.

I am also of opinion that the body of persons responsible for the production of the periodical have by so doing advocated or encouraged the doing of an act having, or purporting to have as a body, the carrying out of a seditious intention as defined in section 24A of the Crimes Act. The seditious intention in this case is in my opinion that referred to in paragraph (g) of sub-section (1) of section 24A, namely, the promotion of 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.

It follows, therefore, that the organization responsible for the periodical is an unlawful association within the meaning of section 30A of the Crimes Act, and accordingly the publication is forbidden from transmission through the post under section 30E of that Act.

The portions of the publication which justify this opinion are the last paragraph under the heading ‘Doping the Nit-Wit’ where readers are urged to organise to smash the capitalist state and to effect ‘a clean up when the final class battle is fought’.

Similarly the heading ‘Build Red Class Fighting Front’ and the matter contained thereunder in my opinion justify the opinion above expressed.

The justification for action under section 30E of the Crimes Act depends on a question of fact, namely, the publication of a periodical by an unlawful association. The question whether those responsible for the publication constitute an unlawful association can be finally determined only by a court in considering the objects advocated by that association per medium of its publications or otherwise. In my view the views above expressed would be supported in any proceedings before the Court to test the question.

It is suggested that any person protesting against the action taken should be informed that the publication is such as by its terms is not transmissible by post under the Post and Telegraph Act.

I advise that any persons protesting should be merely informed in the terms above suggested and left to such action as they see fit to take in the Courts.

[Vol. 25, p. 280]