Opinion Number. 1733



Key Legislation

PRESS AND BROADCASTING CENSORSHIP ORDER paras 11(1)(A), 11(1)(B), 11(1)(C), 12A, 12D

The Prime Minister

The Private Secretary to the Prime Minister (Mr. McLaughlin) has informed me that the Prime Minister desires me to advise on the question as to whether a breach of the Press and Broadcasting Censorship Order is involved in the publication in the Sydney Sunday Telegraph of 6th August, 1944, of a certain matter in relation to the escape of prisoners from the Prisoners of War Camp at Cowra, New South Wales, and to bring under notice any matters which in my view call for consideration in connection with the question of prosecution.

It appears that the State Publicity Censor, Sydney, on Saturday, August 5th, 1944, served on the Editor of the Sunday Telegraph directions in the following terms:

  1. B.6 Except for official statements and material already published in the first edition of the ‘Mirror’ and ‘The Sun’ today there must be no further publicity to incidents concerning prisoners of war at Cowra. The material already published is within the limits of the official statement broadcast for warning purposes. Editors should be careful to ensure that there is no reference to nationalities. The word ‘big’ has been used in one heading. This must not be repeated.
  2. B.7 Amplifying instruction B.6, except for an official statement by the Prime Minister there must be no further publicity to incidents concerning Cowra prisoners of war camp beyond the bare reference to escape and search as broadcast this morning. There must be no reference to nationality of prisoners concerned or any suggestion or hint directly or indirectly that there has been violence. All material must be submitted to Censorship.

The matter which was broadcast on the morning of August 5th was in the following terms:

A number of prisoners of war escaped from the Prison Camp at Cowra, N.S.W., at an early hour this morning. The district is being thoroughly patrolled by members of the Military and Police Forces. Individuals may attempt to secure assistance to avoid capture. Any person approached for help in this way should immediately inform the Military or Police Authorities.

It will be noted that instruction B.7 contains the direction that ‘all material must be submitted to censorship’.

In accordance with that direction, the Sunday Telegraph appears to have made two submissions of matter to the State Publicity Censor. The first submission was censored very slightly but about three-quarters of the second submission was deleted by the Censor.

The matter published in the Sunday Telegraph was in a very different form from the matter submitted to and passed by the Censor and contained not only matter the publication of which was forbidden by the State Publicity Censor, but also references to incidents which were not included in the matter submitted to the State Publicity Censor.

It appears to me, therefore, that it is clear that the Sunday Telegraph published on 6th August, 1944, contains:

  1. matter which was required to be submitted to a publicity censor but which was not so submitted;
  2. matter, the publication of which was forbidden by a publicity censor; and
  3. matter in a form other than the form in which it was approved by the publicity censor.

The question then arises as to whether the action taken by the State Publicity Censor in relation to the Cowra incident is authorised by the Press and Broadcasting Censorship Order as varied by the Order dated 16th May 1944, and published in the Gazette of 19th May, 1944, and commonly referred to as the New Code.

Paragraph 12A inserted by the New Code provides that every direction, order or prohibition issued, given or made under the order by a publicity censor in relation to the publication of any matter shall be issued, given or made solely by reference to the requirements of defence security as they exist at the time of publication or proposed publication of the matter in question.

The order to submit in relation to the Cowra incident appears clearly to have been given by reference to circumstances existing at the time of the proposed publication. The next question is whether these circumstances had, in the opinion of the Military Authorities, a serious defence security aspect. It may be that if any hint of the Cowra incident reached the enemy prior to an official investigation and report by the protecting power, the interests of a large number of Australians held prisoner of war by the Japanese might be seriously prejudiced. If such was the case, the matter was, in my view, one of defence security. It is for the Military or other Government Authorities and not for any particular newspaper to determine whether a matter is one of defence security. It appears to me, therefore, to be clear that, assuming that the Military Authorities are satisfied that this matter was one of defence security, the order to submit made on the Sunday Telegraph was made in accordance with the principles laid down in paragraph 12A.

A further question arises as to whether the matter deleted from the matter submitted by the Sunday Telegraph was matter the publication of which could properly be forbidden having regard to the provisions of the New Code.The reference in the matter to some of the prisoners being in foxholes would, in the light of reports of the New Guinea campaign, be likely to convey to some readers the impression that the prisoners were Japanese. This impression would be heightened by the juxtaposition of the paragraph relating to the outbreak last year at a Japanese prison camp in New Zealand. This earlier reference in the published article to the nationality of the prisoners not having been announced would have already created in readers’ minds curiosity as to their nationality.

Having regard to the general principles set out in paragraph 12D inserted by the New Code and, in particular, that defence security may at times include particular aspects of Australia’s war-time relationship with other countries, I think that the action of the censorship in deleting the passages in question was in accordance with the principles of the New Code and fully justified.

With regard to the publication of the matter which appears in the Sunday Telegraph without its having been submitted to a publicity censor, there appears to be some doubt as to whether the direction given by the State Publicity Censor was actually served on the Editor, printer or publisher of the Sunday Telegraph. There appears, however, to be no doubt that the News Editor of the Sunday Telegraph recognised the direction, having regard to the fact that two submissions were made presumably in pursuance of the direction.

In my opinion, there has been a breach of clauses (a), (b) and (c) of subparagraph (1) of paragraph 11 of the Press and Broadcasting Censorship Order by reason of the publication of the matter in question in the Sunday Telegraph of 6th August, 1944, although as to the breach of clause (a) there might be some difficulty as to proof.

The views expressed above relate only to the legal aspect of the matter. The question as to whether or not a prosecution should be instituted immediately against the Sunday Telegraph is one of policy.

With regard to the question whether there are matters which in my view call for consideration in connection with the question of prosecution, I think the following should be mentioned.

I understand that all the other newspapers including the Daily Telegraph have shown that they have been ready and willing to co-operate with the State Publicity Censor in relation to the matter, although the Telegraph only came into line after considerable discussion. It appears, therefore, that the Sunday Telegraph would not receive any sympathy from the rest of the Australian Press if a prosecution were instituted against it in respect of these breaches of the Order.

On the other hand, any prosecution at this juncture would no doubt be represented by the newspaper itself as being an interference with freedom of expression.

In addition, there is the fact that a prosecution would probably lead to some publicity being given to the Cowra incident which at this stage it is desirable to avoid. It is not possible to conduct the prosecution in camera, and the fact that the case is to be heard may result in a crowded court.

It might therefore be desirable to postpone the proceedings for the time being. At the same time, unless proceedings are taken promptly, the salutary effect will be lost. In any event, if proceedings are taken now, I see no reason why the Publicity Censor should not prohibit the publication of any evidence or other matter brought out at the proceedings which would be prejudicial to defence security, though such prohibition will not prevent those present at the trial from passing on information gleaned by them at the trial.

[Vol. 36, p. 176]