Birch v Allen [1942] HCA 17; (1942) 65 CLR 621 (25 August 1942)

HIGH COURT OF AUSTRALIA

Birch Informant, Appellant; and Allen Defendant, Respondent.

H C of A

On appeal from the Court of General Sessions of Victoria.

25 August 1942

Latham C.J., Rich, Starke, McTiernan and Williams JJ.

Dwyer K.C. (with him N. Pilcher), for the appellant.

Barry K.C. (with him Sugerman), for the respondent.

Dwyer K.C., in reply.

The following judgments were delivered:—

Latham C.J.

This is an appeal, by special leave, from a decision of the Court of General Sessions in Victoria, setting aside a conviction of the respondent, William Francis Allen, for a breach of reg. 42 contained in the National Security (General) Regulations made under the National Security Act.

Reg. 42 provides that a person shall not endeavour, whether orally or otherwise, to influence public opinion in Australia or elsewhere in a manner likely to be prejudicial to the defence of the Commonwealth or the efficient prosecution of the war. The prosecuting authority chose to charge the respondent with endeavouring to influence public opinion "in a manner likely to be prejudicial to the efficient prosecution of the war," and not "in a manner likely to be prejudicial to the defence of the Commonwealth." If the charge had been laid in the last-mentioned form the difficulties with which we have to deal would not have arisen.

The charge, then, was endeavouring to influence public opinion in a manner likely to be prejudicial to the efficient prosecution of the war. It is therefore necessary to ascertain what "the war" means. The respondent was convicted. The Court of General Sessions set aside the conviction, holding that "the war" in reg. 42 meant the war between His Majesty the King and Germany, and the learned Chairman of General Sessions, Judge Clyne, indicated his view that, on the facts, he considered that it was unlikely that the respondent had committed any offence even if the words "the war" were not construed in this limited sense.

The regulations as originally promulgated in 1939 contain certain definitions. In the first place there is a definition of "the Act." "The Act" means "the National Security Act 1939." "The war" means "the present war." The latter definition has not been altered. Accordingly the respondent can be convicted only if he has endeavoured to influence public opinion prejudicially to the efficient prosecution of "the present war," whatever that may mean.

These regulations were passed under the National Security Act 1939 and were made on 13th September 1939. At that time the only war in existence was a war between His Majesty the King and Germany. "The present war" at that date meant that war, and it is contended that it still means that war.

In 1940 the National Security Act was amended in various particulars. The title was changed by omitting a reference to "the present state of war" and inserting the words "any war in which His Majesty is or may be engaged." So the title of the Act now reads as follows: "An Act to make provision for the safety and defence of the Commonwealth and its territories during any war in which His Majesty is or may be engaged."

It may be proper to look at the title for the purpose of determining the scope of an Act; it may be referred to, not to contradict any clear and unambiguous language, but if there is any uncertainty it may be referred to for the purpose of resolving the uncertainty. "The title is an important part of the Act, and is so treated in both Houses of Parliament," Lindley M.R. said in the case of Fielding v. Morley Corporation[1]

In the present case not only is the title altered, but also certain definitions which appeared in the Act originally were struck out so that they no longer appear in the Act as amended. Those definitions were two, first a definition of "the present state of war," and, secondly, a definition of "the present war." The latter definition had appeared in these words: "The present war means the war between His Majesty the King and Germany existing during the present state of war."

I refer to sec. 19 of the Act, which was also amended. Originally sec. 19 said: "This Act shall continue in operation during the present state of war and for a period of six months thereafter and no longer." It was amended in 1940 to read: "This Act shall continue in operation until a date to be fixed by proclamation and no longer, but in any event not longer than six months after His Majesty ceases to be engaged in war."

The regulations also were amended in 1940. The definition of "the Act" was altered, so that, instead of meaning the National Security Act 1939, it was expressly provided that it means "the National Security Act 1939 as amended from time to time." This amendment, as Mr. Barry said, made it unnecessary to resort to the Acts Interpretation Act in order to discover that the National Security Act meant in the regulations that Act as amended from time to time.

For present purposes the regulations as they exist to-day are the same as they were at the time of the commission of the alleged offence. It is the duty of the Court to construe them in their legal setting as it exists. What is that legal setting? The regulations refer to the National Security Act as amended from time to time. That Act has been amended, and the regulations must, in my opinion, be regarded as regulations which are made under and by virtue of the Act as amended and not merely by virtue of the original Act. Any other view would lead to a possible diversity of interpretation of identical words or phrases in the different regulations and would also produce difficulties as to the period during which the regulations would remain in force.

I agree with Mr. Barry that penal Acts must be construed strictly, that is to say, that the Court is not to adopt an interpretation against the liberty of the subject unless the words are clear.

Sec. 46 of the Acts Interpretation Act 1901-1937, sub-sec. (a), so far as it is relevant, provides that when an Act confers upon any authority power to make regulations, unless the contrary intention appears, expressions used in the regulations shall have the same meaning as in the Act conferring the powers. I approach the matter from this point of view: either there is an Act conferring the power to make these regulations, or there is no such Act. In my opinion there is such an Act and that Act is the National Security Act 1939-1940—that is, the original Act as amended. The regulations must be read in the setting of that Act, and words and phrases such as "the war" must be construed having regard to the provisions as they existed at the time of the offence. More particularly, I read these regulations as made under an Act which is entitled: "An Act to make provision for the safety and defence of the Commonwealth and its Territories during any war in which His Majesty is or may be engaged." The Act is an Act also which has struck out the definitions of "the present war" and "the present state of war" which were limiting provisions in the Act in its earlier form, and it is an Act which includes the provision of sec. 19 to which I have already referred.

In other words, the Act as it now stands, looks to futurity and to possible changes in the area of warlike operations and hostilities. Particularly I read reg. 42 since the amendment of the Act as meaning "any war in which His Majesty is or may be engaged."

Mr. Barry has truly said that if the definition of "the war" as being "the present war" had been altered the matter would have been clearer, but in my opinion it is sufficiently clear.

The Commonwealth desires an interpretation of the Act and regulations and does not press for a conviction in this case. Accordingly it is unnecessary for the Court to deal with the facts of the case. In my opinion the proper order to make is that the appeal should be dismissed, the appellant to pay the respondent's costs of the appeal in this Court.

Rich J.

I agree.

Starke J.

I agree.

McTiernan J.

I agree.

Williams J.

I agree.

Order accordingly.

Solicitor for the appellant, H. F. E. Whitlam, Crown Solicitor for the Commonwealth.

Solicitor for the respondent, Maurice Blackburn, Melbourne, by C. Jollie-Smith & Co.

[1] (1899) 1 Ch. 1, at p. 4.