Opinion Number. 371

Subject

CRIMINAL LAW WHETHER COMMONWEALTH HAS POWER TO MAKE LIBELS AGAINST COMMONWEALTH OR STATE PUNISHABLE : EXTENT OF POWER TO LEGISLATE WITH RESPECT TO CRIMINAL MATTERS : EXTRATERRITORIALITY

Key Legislation

CONSTITUTION, s. 51 (i). (xxvii), (xxxix)

Date
Client
The Prime Minister

The Prime Minister asks to be advised whether there is power under the Constitution to pass a law to make libels on the Commonwealth or on a State punishable.

The Constitution confers no direct power on the Parliament to legislate with respect to criminal matters. But there is no doubt that the Commonwealth Parliament has power, incidentally to its various enumerated powers, to pass such criminal laws as it thinks necessary in relation to those powers.

Therefore I think that the Parliament clearly has power to pass a law to punish persons who directly libel the Commonwealth Government.

Incidentally to its power with respect to trade and commerce and immigration, the Parliament has power to forbid the writing and publishing of any false statements likely to prejudice trade and commerce with other countries, or likely to affect the immigration to Australia of desirable immigrants.

A Commonwealth law on the matter would only have effect within Australia. Therefore it could not operate to prevent the publication of any statement in England, or in any place outside Australia. But it could operate so as to punish any person in Australia who wrote or made a false statement in Australia with a view to its being published outside Australia.

The fact that the false matter related to one State only would make no difference, because, in relation to external trade and immigration, the Commonwealth is one.

Nor can there be any doubt that a State could legislate to prevent any person from writing or making false statements in relation to that State. The law would, however, apply only within the limits of the State concerned.

[Vol. 7, p. 401 ]