Opinion Number. 1520

Subject

sedition sedition: publication in italian language newspaper of article criticising attitude and conduct of british persons: prospects of criminal prosecution: deportation: application of dictation test

Key Legislation

crimes act 1914 ss 24A, 24B, 24D: IMMIGRATION RESTRICTION ACT 1901 ss 5, 5A, 8A

Date
Client
The Secretary, Department of External Affairs

The External Affairs Department has forwarded the following memorandum for advice:

I forward herewith the departmental file in relation to the publication by Mr. A.B. of Perth, Western Australia, in ‘La Stampa Italiana’ of alleged seditious matter.

I should be glad to receive advice as to whether the evidence is regarded as sufficient to support a prosecution under the Crimes Act, or whether it would be preferable to deal with him under the Immigration Act.

The alleged seditious matter is contained in an article entitled ‘L’India di Oggi’ (‘The India of To-day’) which appeared in La Stampa Italiana on the 17th June, 1932.

Section 24D of the Crimes Act 1914–1932 reads as follows:

  1. D
    1. Any person who writes, prints, utters or publishes any seditious words shall be guilty of an indictable offence.
    2. Penalty: Imprisonment for three years.

    3. A person cannot be convicted of any of the offences defined in this or the preceding section upon the uncorroborated testimony of one witness.

‘Seditious words’ are defined by section 24B of that Act to be words expressive of a seditious intention.

Section 24A defines a ‘seditious intention’ and sets out the circumstances in which it is lawful to do certain things which would otherwise constitute a seditious intention. The basis of such justification is the ‘good faith’ of the person doing such things. ‘Seditious intention’ as so defined means, so far as relevant, an intention to effect any of the following purposes, that is to say:

(c) to excite disaffection against the Government or Constitution of any of the King’s Dominions;

(e) to excite disaffection against the connexion of the King’s Dominions under the Crown;

(g) 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.

In my opinion, the following words from a translation of the article constitute ‘seditious words’ within the meaning of section 24B in that they express the seditious intention of promoting ‘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’:

And here let me be allowed to open a parenthesis: we continue to observe in Australia the same phenomenon which flourishes in all lands where the English flag flies: that is, hatred, egoism, immorality, a domineering spirit, vulgar insult, with the difference that here, not being able to take a whip and thrash the foreigner who is working and enriching their land, they have established ridiculous laws and factions in order to cut the ground under the feet of those who are trying with their toil to earn an honest and comfortable living. Hatred becomes fanaticism in cases where our workmen decisively surpass the productive ability of the British. Rude and vulgar propaganda against the foreigner grows and soars gloriously where they come into collision with the iron wills of our fellow-countrymen. When they can no longer fight, then the true Anglo Saxon politeness blossoms in the columns of their newspapers in which for courteous controversy is substituted shameless calumny, for frank and free discussion, vulgar and foolish insult; such is the boasted British politeness.

The other parts of the article are, in my opinion, seditious words in that they express an intention to effect the purpose mentioned in paragraphs (c) and (e) of sub-section (1) of section 24A of the Crimes Act, although the seditious intention is not so apparent as that in the extract quoted above.

I am also of the opinion that the evidence contained in the article itself is sufficient to support a prosecution under section 24D of the Crimes Act.

With regard to action under the Immigration Act 1901–1932, Mr. B. could be required to pass the dictation test pursuant to sub-section (2) of section 5 or, in the event of his conviction for an offence under section 24D of the Crimes Act, steps could be taken to deport him under section 8A of the Immigration Act. It is understood that Mr. B. arrived in Australia on the 5th October, 1927. Any action in pursuance of section 5 or section 8A of the Immigration Act would, therefore, need to be taken before the 5th October, 1932.

[Vol. 25, p. 793]