Pankhurst v Porter [1917] HCA 52; (1917) 23 CLR 504 (2 October 1917)

HIGH COURT OF AUSTRALIA

Pankhurst Defendant, Appellant; and Porter Informant, Respondent.

Suter Defendant, Appellant; and Porter Informant, Respondent.

Baines Defendant, Appellant; and Porter Informant, Respondent.

H C of A

On appeal from a Court of Petty Sessions of Victoria.

2 October 1917

Barton, Isaacs, Higgins, Gavan Duffy, Powers and Rich JJ.

Starke (with him Foster), for the appellants.

Mann (with him Macindoe), for the respondent.

Barton J.

I wish the remarks I am about to make as to the appeal of Adela Constantia Mary Pankhurst to apply to all three cases. They stand on the same footing. By reg. 27 of the War Precautions (Supplementary) Regulations 1916, which was made on 14th August 1917, it is provided, so far as is material, that "(1) It shall not be lawful for any number of persons exceeding twenty to meet in the open air in any part of the proclaimed place for any unlawful purpose or for the purpose or on the pretext of making known their grievances or of discussing public affairs or of considering or of presenting or preparing any petition memorial complaint remonstrance declaration or other address to His Majesty or to the Governor-General or to both Houses or either House of the Parliament of the Commonwealth." In the view that I take of this case the amendment which has been allowed in the second ground of the order nisi does not come into question. The real point which we are about to decide is whether there was evidence which should have satisfied the Magistrate, or upon which the Magistrate might properly have been satisfied, that the appellant was one of twenty or more persons who had assembled "on the pretext of making known their grievances." That depends on the meaning to be attached to the word "pretext"; and that again is to be determined largely upon the context of the regulation. I can imagine a case where the word "pretext" would mean the real or ostensible purpose. That might be where the context called for such a meaning; but here the word is by the context clearly distinguished from other words in the regulation. For we have, first, these words "for any unlawful purpose." That clearly means for any unlawful object, being the real object. Then follow the words "or for the purpose or on the pretext" &c. The word "purpose" is there used again, and primâ facie it is used in the same sense as before, that is to say, as meaning the real purpose. Then come immediately the words "or on the pretext," and it appears plain to me that as a matter of construction the collocation in which the word "pretext" is used shows that it is used in contradistinction to the word "purpose." In that case the words "for the purpose or on the pretext" indicate that the persons who have assembled have done so either for the real purpose of making known their grievances or on the pretext, and not really with the purpose, of making known their grievances. We are bound, if we can, to find separate meanings for the words "purpose" and "pretext," and we cannot say that the word "pretext" has the meaning of the word "purpose." Being of that opinion, what is the next inference? When persons have assembled on the "pretext" of making known their grievances, and not for the real purpose of making them known, there is a sham. There is, in such a use of the two terms, a concealment, or a screen, connoted by the word "pretext" which is not connoted by the direct and frank word "purpose." Reading the regulation in that way, as I think we must, the question is what evidence there is here that the purpose for which the persons were assembled was not the true purpose; in other words, that they were assembled on a mere pretext. The evidence is as follows:—The informant, who is a constable, said that "Shortly after three o'clock the three accused, with several other women, came into the Treasury Gardens" (which is within the proclaimed place). "There were between five thousand and six thousand people present, and the defendant Adela Constantia Mary Pankhurst got up on a seat and addressed the people assembled, and told them all to follow her to Parliament House in defiance of the police and to break in if necessary, and see what Billy Hughes was going to do to get cheaper food for the starving people. The crowd surged round the seat and the said Adela Constantia Mary Pankhurst was pushed off it, and then Alice Suter got up on the seat and commenced to address the people assembled, and she in turn was pushed off the seat, and also Jennie Baines was pushed off the seat, and then Adela Constantia Mary Pankhurst and Alice Suter and Jennie Baines went towards the steps of Parliament House arm-in-arm, and followed by the crowd of people." Then the arrests were made. Does that evidence show that the people, however wrong their object, were there holding forth a sham as the reason of their meeting when their real purpose was a different one? I do not think that, whatever may be the fact, the evidence shows that. This Court, it must be remembered, is here not for the purpose of expressing its opinion upon the propriety or impropriety of the conduct of the appellants, but to determine the meaning of the regulation, and whether the Magistrate was justified in finding that the charge with which the appellants have been confronted had been proved. I do not think that anyone hearing the evidence which I have just read would say that there is anything in it upon which the ordinary reasonable mind could conclude that the persons at the meeting were there, not with the object of finding out from the authorities what steps were to be taken to provide cheaper food, but for an ulterior purpose which the cry for cheaper food was merely used to disguise. They are not shown to have been putting forward a sham, and this Court is concerned only with the matter of proof. It seems to me that if we were to hold that the object of these persons was falsely stated, that they had some ulterior object such as to break the law or gain notoriety, we should come to a conclusion unsupported by the evidence. We cannot do that. I am, therefore, of opinion that in the regulation "pretext" has a different meaning from "purpose," that the latter word refers to the real object and the former to the professed and not to the genuine object, or to something done under a screen. If it had been alleged in the information that these persons were assembled "for the purpose" of making known their grievances, it is possible that upon this evidence they might have been properly convicted. That, however, does not concern the present case.

For these reasons the convictions must be quashed.

This Court, in the case of Acts of the Federal Parliament or of subordinate legislation passed by the authority of that Parliament, does not inquire into their validity unless it becomes necessary to do so, and as this case, on its very threshold, is decided upon the evidence we leave the ordinary presumption of validity to remain.

Isaacs J.

I concur.

Higgins J.

I agree, but I should like it to be clearly understood that we say nothing as to the validity or invalidity of the Act or the Regulations.

Gavan Duffy J.

I concur.

Powers J.

I concur.

Rich J.

I concur.

Appeals allowed. Conviction in each case quashed.

Solicitors for the appellants, Loughrey & Douglas.

Solicitor for the respondent, Gordon H. Castle, Crown Solicitor for the Commonwealth.