Opinion Number. 749

Subject

CENSORSHIP: STATUTORY RULES EFFECT OF DISALLOWANCE BY SENATE OF AMENDING STATUTORY RULE: WHETHER WORDS PURPORTED TO BE OMITTED ARE RESTORED

Key Legislation

ACTS INTERPRETATION ACT 1904-1916, s. 10: WAR PRECAUTIONS REGULATIONS, reg. 28AA: STATUTORY RULES 1916, Nos 187, 204

Date
Client
The Secretary, Department of Defence

The Secretary, Department of Defence:

The Secretary, Department of Defence, has forwarded the following memorandum by the Chief of the General Staff for advice:

  1. The powers possessed by the censorship to control the publication of undesirable matter are as follows:
    1. The Order in Council dated 24th September 1914 (Manual of War Precautions, 4th edn, page 102), by which the censorship of newspapers was first authorised, provides that the censorship may prohibit the publication of 'information of a secret or confidential nature, or likely to be useful to the enemy, and written or printed matter the publication of which is likely, in the present emergency, to be injurious to the public safety or welfare'.
    2. To enforce this power, the censorship was authorised to seize 'all such publications issued in defiance of the orders of such censorship staff'. Disobedience to an order issued under this authority is not however an offence punishable in a court of law.

    3. Paragraphs 19, 28 and 43(1) of the War Precautions Regulations provide that publication of certain classes of information (such as information likely to be useful to the enemy, information likely to prejudice recruiting, or statements likely to incite sedition, etc.) shall be an offence punishable in a court of law.
    4. Paragraph 28a authorises the censorship to give orders to 'the editor or printer or publisher of any newspaper or periodical, or the author or printer or publisher of any matter intended to be printed' to submit before publication any matter which relates to or refers to the present war or to any subject connected therewith or arising therefrom, etc.
    5. To enable compliance with such orders to be enforced, publication without submission is declared to be an offence; and there is power to seize publications containing matter not submitted, or matter submitted but prohibited from publication.
      This paragraph enables complete control to be exercised over all periodical publications, and over any matter printed or published by any person on whom an order has been served.

    6. Paragraph 28aa in its original form (Statutory Rule 187 of 1916) provided that matterreferring 'to the methods of recruiting or raising troops for service' should not be published unless previously submitted.

    The object of this paragraph could also be secured by orders given under paragraph 28A. But paragraph 28AA was more convenient, because individual orders were not required to be served on printers or publishers, as was the case under paragraph 28A.
    By Statutory Rule No. 204 of 1916 (now disallowed) the words 'matter referring to the methods of recruiting or raising troops for service' were replaced by the words 'matter which relates or refers to the present war or to any subject connected therewith or arising therefrom'.

  2. The effect of the disallowance of Statutory Rule No. 204 is either-
    1. to restore the words which were omitted from Statutory Rule 187, paragraph 28AA thus reverting to its original form; or
    2. to omit these words, without substituting any others for them. If this be its effect, paragraph 28AA will now read:

    28AA. (1) No person shall without lawful authority print (otherwise than for submission to the censorship in compliance with this Regulation) publish, sell, or distribute any printed matter unless such matter has first been submitted to and approved by an officer of the Censorship Staff, and any person who acts in contravention of this Regulation shall be guilty of an offence against the Act.

    (2) This Regulation shall not apply to any matter published in any newspaper registered under the Post and Telegraph Act 1901-1913.

  3. If the effect of the disallowance be as in (i), it will be more difficult to control the publication in pamphlets and the like publications of matter which 'relates or refers to the present war or to any subject connected therewith or arising therefrom' and which does not refer to 'the methods of recruiting or raising troops for service'.
  4. It will however be still possible under paragraph 28a to serve a notice on any person likely to print or publish such matter, and, once such a notice is served, the powers of the censorship become as wide as under the provisions disallowed by the Senate. Further, the publication of any matter within paragraphs 19, 28 etc. can still be made the subject of a prosecution.

    Assuming this interpretation to be correct, it is not considered that any provision need be made in place of that disallowed by the Senate.

  5. If the effect of the disallowance be as in (ii) and assuming the Regulation in its new form to be not ultra vires, all printed matter (whatever its subject), not being matter published in a newspaper, must be submitted to the Censor before publication. The effect of the Senate's disallowance would therefore be to enlarge to the widest possible extent the powers of the censorship.
  6. It is recommended that the advice of the Attorney-General's Department be sought as to the effect of the Senate's disallowance.

In my opinion the effect of the disallowance by the Senate of Statutory Rule No. 204 is as stated in paragraph 2 (i) of the memorandum, viz. to restore the words which were omitted from Statutory Rule No. 187, paragraph 28AA thus reverting to its original form.(2)

[Vol. 14, p. 458]

(1) Regulation 43 deals with another matter.

(2) By section 10 of the Acts interprentation act 1904-1916 it was provided that:
'... if rither House of the Parliament passes a resolution ... disallowing any regulation such regulation shall ... cease to have effect'