Opinion Number. 1558

Subject

photography of warships PHOTOGRAPHING OF HIS MAJESTY’S AUSTRALIAN SHIPS: whether crime: requirement for purpose prejudicial to safety or interests of Commonwealth or some part of King’s Dominions: onus of proof

Key Legislation

Defence Act 1903 s 82: Naval Defence Act 1910 ss 41, 45: Crimes Act 1914 Part VII, ss 77, 78, 79, 80: Official Secrets Act 1911 (U.K.) (1 & 2 Geo. V c. 28)

Date
Client
The Secretary, Department of Defence

The Secretary, Department of Defence, has asked for my advice upon the questions set out in the following memorandum:

  • A photograph of H.M.A.S. ‘AUSTRALIA’ in the dry dock at Cockatoo Island was published in the ‘Sydney Morning Herald’ newspapers on 25th January, 1934. It has been ascertained that the photograph was taken by Mr A. B., of 247 George Street, Sydney, described as photographer to the Cockatoo Dock Engineering Co.
  1. Both the Admiralty regulations and the Naval Board Standing Orders direct that permission is not to be given for photographing any of H.M. Ships in dock.
  2. The question has been raised as to whether any steps can be taken to control the taking and publication of such photographs, or to proceed against persons doing so.
  3. It is observed that section 82 of the Defence Act would probably not be effective, as it would appear that the prohibition therein relates only to fixed works of defence.
  4. Section 41 of the Naval Defence Act gives power to the Governor-General to acquire or build and maintain ships for Naval Defence, and section 45 gives power to make regulations for carrying out or giving effect to the Act, but it seems doubtful whether these powers are sufficiently wide to permit of a regulation being made to prohibit the taking or publishing of photographs of H.M.A. Ships.
  5. Although the Crimes Act (Part VII) deals specifically with this question, i.e.
  6. Section 77 defined ‘sketch’ to include ‘photograph’.

    Section 80 defines ‘Prohibited place’ to include a ship and also any place whether owned by the Government or not where H.M.A. Ships are repaired.

    Section 78 makes it an offence to make a sketch of a prohibited place under certain conditions.

    Section 79 makes it an offence to have, communicate, retain or receive a photograph made or obtained in contravention of that Part of the Act, but section 78 indicates that the Act must be done for a purpose prejudicial to the safety or interests of the Commonwealth or any part of the King’s Dominions. Subsection (2) of that section, however, provides that if any such photograph is made, obtained or communicated by any person other than a person acting under lawful authority, it shall be deemed to have been done for a purpose prejudicial to the safety or interests of the Commonwealth, unless the contrary is proved, whilst sections 78 (1) (b) and (c) indicate that if the sketch is likely to be or might be or is intended to be directly or indirectly useful to an enemy it would ipso facto be so prejudicial.

    Both the Naval Board and the Admiralty by their Standing Orders indicate that a photograph of one of H.M.A. Ships when in dry dock would likely be or might be useful to an enemy.

  7. Advice is desired:
    1. Whether the taking or publication of a photograph such as that published in the ‘Sydney Morning Herald’ of 25th January 1934 is an offence against the Crimes Act.
    2. If so, what action can be taken to prevent such photographs being taken.
    3. Whether a regulation can be made under the Naval Defence Act prohibiting the taking and publishing of such photographs.
  8. I am to add that this matter emphasises the necessity for the early amendment of Part VII of the Crimes Act to bring it into line with the British Official Secrets Act, which has been recommended by this Department on several occasions during the last few years.

Section 78 of the Crimes Act 1914–1932 reads as follows:

  1.  
    1. If any person for any purpose prejudicial to the safety or interests of the Commonwealth or any part of the King’s Dominions–
      1. approaches, or is in the neighbourhood of, or enters, any prohibited place; or
      2. makes any sketch, plan, model, or note which is likely to be or might be or is intended to be directly or indirectly useful to an enemy; or
      3. obtains or communicates to any other person any sketch, plan, model, article, or note, or other document or information which is likely to be or might be or is intended to be directly or indirectly useful to an enemy;
      4. he shall be guilty of an indictable offence.

      Penalty: Imprisonment for seven years.

    2. On a prosecution under this section it shall not be necessary to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the Commonwealth or any part of the King’s Dominions, and, notwithstanding that no such act is proved against him, he may be convicted if, from the circumstances of the case, or his conduct, or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interests of the Commonwealth or any part of the King’s Dominions; and if any sketch, plan, model, article, note, document, or information, relating to or used in any prohibited place within the meaning of this Part of this Act, or anything in such a place, is made, obtained, or communicated by any person other than a person acting under lawful authority, it shall be deemed to have been made, obtained or communicated for a purpose prejudicial to the safety or interests of the Commonwealth or of some part of the King’s Dominions, unless the contrary is proved.

‘Sketch’ is defined by section 77 to include a photograph.

It will be noted that for an act to be an offence against the section, it must be committed for some purpose prejudicial to the safety or interests of the Commonwealth or some part of the King’s Dominions. This ingredient of the offence may be proved not only directly by evidence of acts tending to show a prejudicial purpose but inferentially from the circumstances of the case, or the conduct or known character (as proved) of the accused. In the present instance, the photograph was taken apparently with a view to its publication in a newspaper as a matter of public interest and not with any idea of prejudicing the safety of the Commonwealth. In the absence of any evidence as to the suspicious or unlawful conduct or the disloyal character of the photographer there does not appear to be any evidence of a prejudicial purpose within the meaning of the section.

The section further provides, however, that if any sketch is made relating to a prohibited place, or anything in such a place, it shall be deemed to have been made for a purpose prejudicial to the safety or interests of the Commonwealth … unless the contrary is proved.

Section 80 defines a prohibited place as including any dockyard, or any place not belonging to the King or the Commonwealth where any ship is being repaired under contract.

The dry dock at Cockatoo Island comes within this definition, and therefore, prima facie, the photographer is presumed to have taken his photograph for a prejudicial purpose.

He may, however, by appropriate evidence, rebut this presumption.

It is not possible to advise, on the information before me, whether the photographer would succeed in doing so in the present case, but it seems very probable that he would be able to satisfy the jury that the photograph was taken for an entirely innocent purpose, in which case he would be acquitted of an offence under section 78.

It is assumed that the photograph might be useful to any enemy.

Section 79 of the Crimes Act reads as follows:

  1.  
    1. If any person having in his possession or control any sketch, plan, model, article, note, document, or information, which relates to or is used in a prohibited place or anything in such a place, or which has been made or obtained in contravention of this Part of this Act, or which has been entrusted in confidence to him by any person holding office under the King or the Commonwealth, or which he has obtained owing to his position as a person who holds or has held office under the King or the Commonwealth, or as a person who holds or has held a contract made with or by or on behalf of the King or the Commonwealth, or as a person who is or has been employed under a person who holds or has held such an office or contract–
      1. communicates the sketch, plan, model, article, note, document, or information to any person, other than a person to whom he is authorised to communicate it, or a person to whom it is, in the interest of the Commonwealth or of some part of the King’s Dominions, his duty to communicate it, or
      2. retains the sketch, plan, model, article, note or document in his possession or control when he has no right to retain it or when it is contrary to his duty to retain it, he shall be guilty of an offence.

      Penalty: Imprisonment for seven years.

    2. If any person receives any sketch, plan, model, article, note, document, or information, knowing, or having reasonable ground to believe, at the time when he receives it, that the sketch, plan, model, article, note, document, or information is communicated to him in contravention of this Part of this Act, he shall be guilty of an offence unless he proves that the communication to him of the sketch, plan, model, article, note, document, or information was contrary to his desire.
    3. Penalty: Imprisonment for seven years.

I am of opinion that the photographer has committed an offence against this section. He has apparently communicated to somebody in the office of the Sydney Morning Herald a sketch which relates to a prohibited place and it does not appear that it was in the interest of the Commonwealth so to communicate it. The person to whom the photograph was communicated would also be guilty of an offence under subsection (2) of section 79 if it could be established that he received the photograph knowing, or having reasonable ground to believe, at the time he received it, that the photograph was a photograph of a prohibited place and that its communication to him was not in the interest of the Commonwealth. Some difficulty might be met in establishing the last mentioned ingredient of the offence.

Section 45 of the Naval Defence Act 1910–1918 empowers the Governor-General to make regulations for carrying out or giving effect to the Act, and I incline to the view that this power is wide enough to authorise regulations prohibiting the photographing of H.M.A. Ships. The penalties, however, which may be imposed by the Regulations, namely, three months’ imprisonment or a fine of £25, are quite inadequate to the gravity of the offence, and it would, in my opinion, be preferable to amend section 78 of the Crimes Act so as to provide that the mere taking of a photograph of a prohibited place should be an offence, even if it were taken for an innocent purpose.

The answers to the questions submitted are therefore as follows:

  1. Yes, if it was taken for a prejudicial purpose, but as pointed out in the opinion the defendant might perhaps establish by appropriate evidence that the act was not done for a prejudicial purpose.
  2. Administrative action preventing trespass by unauthorised persons on prohibited places, and the exercise of supervision over the actions of persons lawfully on prohibited places, and generally, the issue to the public, by notice or otherwise, of warning that it may be an offence to photograph any of H.M.A. Ships.
  3. Yes.

The amendment of the Crimes Act to bring it into line with the Imperial Official Secrets Act 1911 as amended by the Act of 1920, is a matter of Government policy. A copy of the latest print of the Bill to amend the Crimes Act is forwarded under separate cover.

[Vol. 27, p. 263]