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Wednesday, 27 November 1935


Senator BROWN (Queensland) . - Section 25, which clause 6 amends, refers to any person who knowingly attempts to seduce a person in the King's Forces. But in the proposed new subsection dealing with the publication of seditious matter, the word "knowingly" does not appear. Senator Pearce has maintained that this omission is necessary. I fail to understand why the word should be left out in one instance and nor. in another. If a person publishes a book and is haled before the court, he knows perfectly well whether he has published that book or not. There remains for decision by the court the question of whether the article is likely to seduce any person serving in the King's Forces from his allegiance. Senator Pearce said that, in the Truth case, the judge gave no direction to the jury in regard to inciting to mutiny; and that the whole of the defence rested on the word " knowingly ". According to the issue of Truth of the 10th November, the judge said -

1.   The prosecution had to prove whether the article read in a fair-minded manner,, was an incitement to mutiny, or, a report of news and a warning to the naval authorities.

Senator Pearcequoted from a departmental report, which stated that the judge gave no direction whatever to the jury on the question of inciting to mutiny. According to Truth, the judge asked the jury to decide whether the article, if read in a fair-minded manner, would be likely to incite a person serving in the King's Forces to mutiny. The judge proceeded -

2.   Tim l the incitement to mutiny, if any, was directed to and aimed at lower ratings of the vessels >n Melbourne.

3.   If so, did the accused, the publisher, do all this knowingly.

Admittedly, a rational and intelligent counsel for the defence would make use of these provisions, and he could not be blamed for doing so. If an article, of which the publisher knows nothing, is published above his name, is it just that he should be prosecuted, and because it is proved that the matter might have incited to mutiny, that he should be sent to gaol without the option of a fine, as is desired by Senator Allan MacDonald?


Senator A J McLACHLAN (SOUTH AUSTRALIA) - That, would be a question of the measure of punishment. In a civil case he would be liable; there would be no answer.


Senator BROWN - In my opinion, no reason exists for the omission of the word " knowingly ". A publisher ought to be safeguarded, to the extent that the prosecution should be required to prove that he knowingly published a seditious article.


Senator Dein - He should know first and publish afterwards.


Senator BROWN - Truth published, an article in good faith. Admittedly, the matter was sensational, but then Truth is a sensational newspaper, and naturally it seized on this subject, but it did not deliberately attempt to incite to mutiny. SenatorPearce said that special steps had been taken to circulate the publication to the lower ratings on the warships. But Truth declared -

No special steps were taken to circulate the publication to the men on the ships.


Senator Sir GEORGE PEARCE (WESTERN AUSTRALIA) -Pearce. - But Truth published the article' contemporaneously with the arrival of the Fleet in Melbourne.


Senator Brennan - No steps to circulate were taken by Truth.


Senator BROWN - Senator Pearce said that special steps had been taken to circulate copies among the ratings. Truth denies that, and the judge particularly pointed out to the jury -

There is no evidence before you that a single copy of Truth ever came to a single person of the lower ratings, and that is not the way the Crown puts the case to you.

This matter was published to sell the newspaper, and because it made good reading, and Senator Pearce is upset because a conviction was not obtained by the Government. According to the tenor of the honorable senator's speech, the judge should have punished Payne for having published the article. The statement made by the editor bears out the contention of the Labour party that it is necessary at times to give full publicity to what is happening in the army and the navy, so that any causes of discontent may be removed, and not for the purpose of inciting to mutiny. The Government, however, desires to amend the act to enable the authorities to prosecute a person and obtain his conviction and imprisonment, no matter what unselfish and lofty motives may actuate him in his efforts to terminate disaffection. The Government has deliberately set out to catch a certain individual who may be possessed of the best of intentions.


Senator ALLAN MACDONALD (WESTERN AUSTRALIA) - The honorable senator is misreading the proposed new sub-section.


Senator BROWN - According to the Minister, the Government has a definite object in leaving out the word "knowingly", so that in any case against a newspaper in future the publisher may be enmeshed in the coils of the law and imprisoned.


Senator Dein - The responsibility is merely fixed on one person, the publisher.


Senator Sir George Pearce - The object is to prevent such crimes from happening in the future.


Senator BROWN - Senator Pearce hasdescribed the publication of such matter as a crime. In the case under consideration the jury after deliberating for fifteen minutes returned a verdict of not guilty. It took into consideration whether this article was an incitement to mutiny.


Senator Brennan - The jury took into consideration the question, " did the publisher knowingly do it?"


Senator BROWN - If Truth has correctly reported the case, the judge in his direction to the jury said. " Was the article an incitement to mutiny or a fair report of news, and a warning to the naval authorities ? "


Senator Sir George Pearce - The judge asked the jury to decide whether the publisher had " knowingly " published the article.


Senator BROWN - A publisher may not know that he has published an article.


Senator A J McLACHLAN (SOUTH AUSTRALIA) - Under the present law it must have been published knowingly.


Senator BROWN - A publisher may be convicted because he cannot deny that he was the publisher of an article.


Senator Brennan - But in the case mentioned he did deny that he was the publisher.


Senator BROWN - Then the wrong person must have been charged, and it was only right that he should be acquitted.


Senator A J McLACHLAN (SOUTH AUSTRALIA) - He was the publisher of the paper, but he said that he did not see the article in question.


Senator BROWN - The name' of the publisher of a newspaper appears in the imprint. A person who deliberately publishes an article inciting to mutiny must stand his trial, and accept the consequences, but honorable senators opposite contend that a publisher of a newspaper who knows nothing whatever concerning the contents of an article he publishes shall be treated as a criminal. In the opinion of Senator Allan MacDonald, such a person should be placed in prison without having the option of a fine.


Senator ALLAN MACDONALD (WESTERN AUSTRALIA) - Quite right, too.


Senator BROWN - The honorable senator contends that a publisher should be imprisoned for publishing an article concerning which, he knows nothing.


The CHAIRMAN - The honorable senator's time has expired.

Senator DEIN(New South Wales} [4.53]. - I entirely agree with the omission of the word "knowingly", because if it were inserted it could be used as a cloak behind which a cunning and unscrupulous person might hide. In criminal libel cases the court has to. determine whether an article is libellous, and if it is the publisher is responsible. In this instance a publisher, should satisfy himself before a publication sees the light of day that no article which he publishes incites to mutiny. If it does he is responsible. When, the insertion of the- words " or as to be likely to " was discussed several weeks ago I was- not clear as. to their effect upon an accused person. The proposed new. subsection provides that any person who publishes any book, periodical, pamphlet, hand-bill, poster, or. newspaper containing any matter of such a nature as to, or as to be likely to,- result- in the seducing of'' any. person serving in the King's forces- from his duty shall be guilty, of anindictable offence. The words "or as to be likely to" have apparently been. used. instead of the word " attempts ". The court must determine whether any publication, has. resulted in the seduction or is likely to result in. the seduction of any person.. If there has been a deliberate attempt toincite to sedition the- person responsible should be punished and the words to which the Opposition objects are necessary in order to secure a conviction.. On a previous occasion the question was raised of whether, under, theamended provision, an accused person would' be likely to receive the benefit of the doubt, but I believe that in such cases the phrase proposed to be used will not prejudice the rights of an accused person.







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