We have before us a copy of The Vigilant newspaper of the 14th July 1943, together with a pamphlet entitled ‘Rome’s Domination of the Parliamentary Labor Party’. The pamphlet consists of an extract from the newspaper. It is unnecessary to set out the contents of either here. We are asked to advise as to the possibility of successfully launching criminal proceedings. If proceedings could be taken, we think that they would lie against the author of the offending matter and also against the publishers of the newspaper and the pamphlet and against any other persons who could be proved to have been responsible for the circulation of either.

We have given very careful consideration, both independently and in consultation, to the question raised. We have come to the conclusion that, unless we could satisfy ourselves that the success of a prosecution could be regarded as reasonably assured, the wisdom of launching proceedings is at least doubtful. An unsuccessful prosecution would be likely to do more harm then good. But, so far from thinking that the success of a prosecution can be regarded as reasonably assured, we are of opinion that criminal proceedings, on any basis that has been suggested or has suggested itself to us, would probably fail.

We can readily understand that propaganda of the type exemplified by the issue of the newspaper in question and by the pamphlet is regarded not only as irritating to those who are mentioned in it, but as objectionable for many reasons from a national point of view, perhaps exceptionally objectionable in war-time when national unity is of such vital importance. But the questions which arise are questions of law, and we think that there has been no actual breach of the law.

The first statutory provisions under which it is suggested that a prosecution might be launched is section 24D of the Crimes Act, which provides that any person who writes, prints, utters or publishes any seditious words shall be guilty of an indictable offence. We think that the essential elements of sedition are lacking here. It is unnecessary to define the term with precision. It is not really a technical legal term, as is treason. But we think that the idea generally conveyed by the word ‘sedition’ is the idea of an attempt or desire to overthrow the constituted Government of a country by unlawful means. The purpose of the publications in question is undoubtedly to bring about a change of government in the Commonwealth, but there is no suggestion that this should be done by other than lawful and constitutional means.

We have also considered various provisions in the Commonwealth Electoral Act, but we think that the only one of those provisions which needs to be mentioned here is section 161(e) which is mentioned in our instructions. That provision declares that printing, publishing or distributing any electoral pamphlet etc. containing any untrue or incorrect statement intended or likely to mislead or improperly interfere with any elector in or in relation to the casting of his vote shall be an illegal practice. It is an essential ingredient of the offence constituted by section 161(e) that the matter complained of should be intended or likely to mislead or improperly interfere with any elector in or in relation to the casting of his vote. This ingredient, we think, could not be established.

The most difficult question to our mind is the question whether a successful prosecution might not be launched for the common law offence of defamatory libel. Libel, as is well known, is not only tort, but a crime at common law, though the elements of the tort of libel and the crime of libel are different. In Archbold’s Criminal Pleading 25th ed⁽¹⁾ at p. 1188, it is stated that ‘Writings reflecting upon bodies of men without mentioning any individual in particular are indictable as libels if they tend to stir up the hatred of His Majesty’s subjects against the members of the body generally or to excite the individuals composing the body to a breach of the peace’. If this statement of the law could be taken to be literally true, it might well be said that we have here writings which reflect upon bodies of men and which are intended to stir up the hostility, if not the hatred, of the King’s subjects against the body. But we think it is clear that the statement needs some qualification. It has always been regarded as an essential element in the crime of libel (though not, of course, in the tort of libel) that the tendency of the words published should be to provoke a breach of the peace. In other words, the word ‘or’ in the passage from Archbold should read ‘and’. There must be a real danger that a breach of the peace may be provoked before an indictment for defamatory libel can succeed. In our case it is very unlikely that a jury would find that the publications complained of here had a real tendency to provoke a breach of the King’s peace, and we doubt if it would be open to a jury so to find. This, we think, is the real answer to the suggestion that the crime of defamatory libel at common law has been committed.

On the whole, for the reason indicated, we are of opinion that no successful prosecution could be launched either for a common law offence or for a statutory offence.

[Vol. 36, p. 602]

(1) Roome, HD & Ross, RE (eds) 1918, Archbold’s pleading, evidence, & practice in criminal cases, 25th edn, Sweet & Maxwell Co, London.