The Prime Minister's Department has forwarded, for advice as to whether proceedings can be taken under Commonwealth law, certain newspapers which have been brought under notice as containing disloyal and seditious statements.

They are:

1. The Republic of 1 November 1919, printed by Fraser and Jenkinson of Melbourne, and purporting to be issued by the Irish National Association and Young Ireland Society;
2. The Advocate of 5 July 1919, printed and published by William Michael Collins of the Advocate Office, Melbourne;
3. Australia of 1 August 1919, printed by J. Roy Stevens and published by G.R. Baldwin, 370 Collins Street, Melbourne.

The Republic: This issue contains, amongst other matter, an article headed 'Fighting for Self-determination', which contains the following passage:

Why is Ireland's language banned-her national games not allowed, even her religious processions made criminal acts in the eyes of military law? Why all this conduct in Ireland, if you, Old England, fought as you stated through your representations, for the right and freedom of small nations from foreign tyrants? It is, Old England, because you are still a liar and hypocrite. You have got out of this war German East Africa, German West Africa, German New Guinea, control of Persia; destroyed Germany, your trade rival. For this you fought, and to justify your robberies in the eyes of your toiling masses at home who did most of the dying for you and your friends abroad-you stated you were fighting for the rights of small nations. We of Australia are taught to, and call you Motherland. You asked us to fight for your ideals-that we did. Australia must, however, look to herself and not tarnish her honour with the crimes of 'Old Mother England'. Sons and daughters of this land-no matter what race you are sprung from-see that your land, at all events, is not satisfied [sic] with the loot and plunder of war; but resolutely remains firm to the principle you were asked to fight for-the rights of small nations to freedom-no matter what foreign power it is that holds them in her grip.

In an article headed 'What the American Press Says', the following passage occurs:

Helpless though the people of Ireland now are, confronted on all sides by English bayonets, the time may come when they will be able to set up a government of their own as their forefathers did, and even attack England.

A paragraph headed 'The Courage of Our Race' refers to England as 'the enemy's country', and proceeds:

What are we doing in Australia-in this so-called free and democratic country? It is the duty of all true Irishmen and women to openly declare themselves for the Irish Republic.

An article entitled 'The Slave Mind Among Irishmen', purporting to be a speech delivered in Dublin in 1915, and cross-headed 'Applicable still to some Irishmen in Australia', expresses in several passages hatred of England, and, after a number of violent charges against England, proceeds:

Because of this we regard no enemy of England as an enemy of ours. If a robber has overcome us-if we lie bleeding and bound at his feet-and he be in his turn attacked, we do not inquire into the character or motive of the attacker, before we decide where our sympathy lies. We follow our instinct and our common sense.

Many other passages of a similar character might be cited.

In my opinion, the printing and publication of the paper is an offence against War Precautions Regulation 27A, as advocating, inciting, and encouraging disloyalty and hostility to the British Empire, and to the cause of the British Empire in the present war; and as advocating the dismemberment of the British Empire.

I think it is also an offence against War Precautions Regulation 28 (1) (a), as making statements likely to cause disaffection to His Majesty.

I think further that the printing and publication are seditious under the common law. A seditious intention is denned in Halsbury's Laws of England [Vol. 9, p. 463] as:

... an intention-(1) to bring into hatred or contempt, or to excite disaffection against, the King or the Government and Constitution of the United Kingdom ... or (2) to excite the King's subjects to attempt, otherwise than by lawful means, the alteration of any matter in Church or State by law established; or . . . (4) to raise discontent or disaffection amongst His Majesty's subjects; or (5) to promote feelings of ill will and hostility between different classes of such subjects.

For the offence of a seditious libel, the offender can be prosecuted under State law. Whether he can be prosecuted under Commonwealth law depends on whether there is a common law of the Commonwealth applicable to the case.

This is a question as to which there is no authority exactly in point. In R. v. Kidman 20 C.L.R. 425, both Griffith C.J. and Isaacs J. held that conspiracy to defraud the Commonwealth was an offence against the common law of the Commonwealth; which afforded protection to the Sovereign as head of the Commonwealth. The other Justices did not find it necessary to decide this point, as they upheld the conviction under a Commonwealth statute.

In my opinion, there is a good probability that the principle of the decision of Griffith C.J. and Isaacs J. would be followed by the Court; and I also think that the principle would extend to this case.

It is true that this offence is not directed solely or expressly against the Sovereign as head of the Commonwealth, or against the Government of the Commonwealth; but disloyalty and sedition clearly affect the safety of the Commonwealth as well as of the Empire. If Irishmen in Australia are encouraged to support rebellion in Ireland, or to support Germany against England on account of Irish grievances, in my opinion, the doctrine of a common law for the protection of Commonwealth institutions is applicable.

In the absence of a direct decision on this important constitutional question, it is impossible to advise confidently what the view of the High Court would be, but my own opinion is that a prosecution under Commonwealth jurisdiction ought to be successful.

If it is thought better to proceed under State law, there are the alternatives either of handing the matter over to the State Crown Law authorities from the outset, or of instructing the Commonwealth Crown Solicitor to issue an information and endeavouring to secure a committal for trial, when the question of filing a bill would be for the State Attorney-General.

As regards The Advocate and Australia, the case is not, in my opinion, strong enough to warrant proceedings.

[Vol. 16, p. 310]