Cooper v The Queen [1961] HCA 16

High Court of Australia Dixon C.J. Fullagar, Kitto, Menzies and Windeyer JJ. Cooper v The Queen [1961] HCA 16

ORDER Application for leave to appeal dismissed.

Cur. adv. vult.

The Court delivered the following written judgment:—

April 13 Dixon C.J., Fullagar, Kitto, Menzies and Windeyer JJ.

This is an application by Brian Leonard Cooper for leave to appeal against his conviction in the Supreme Court of the Territory of Papua and New Guinea on a charge that on or about 15th September 1960 in the Territory of New Guinea he "advisedly spoke and published seditious words". The charge was laid under s. 52 of The Criminal Code of Queensland. The Code was adopted as law in the Territory of New Guinea by the Laws Repeal and Adopting Ordinance 1921 made by the Governor-General under s. 14 of the New Guinea Act 1920 Cth. This Ordinance was still in force when the Commonwealth Parliament enacted the Papua and New Guinea Act 1949, which provided for an administrative union of the Territory of Papua and the Territory of New Guinea. That Act repealed the New Guinea Act 1920, but, by s. 32, provided in effect that, notwithstanding that repeal, all other laws in force at the commencement of the Act in the Territory of Papua or the Territory of New Guinea or both should continue in force in the Territory of Papua, or the Territory of New Guinea, or both, as the case might be.

What is logically the first ground of the present application may be dealt with very shortly. It was founded on the absence of any reference to the Territory of New Guinea in the Queensland Code. Section 52 of the Code provides, so far as material, that any person who advisedly publishes seditious words is guilty of a misdemeanour and is liable to imprisonment with hard labour for three years, and, for a second offence, to imprisonment with hard labour for seven years. The expression "seditious words" is defined by s. 46 as meaning "words expressive of a seditious intention". Section 44 provides that an intention to effect any of a number of specified purposes is a seditious intention. The only relevant purpose in the list is "to excite disaffection against the government of Queensland as by law established". The words which formed the subject matter of the indictment had no relation whatever to the government of Queensland. They did, as will be seen, have a relation to the government of New Guinea, but it was said that there was nothing to justify a reading of s. 44 as including a reference to an intention to excite disaffection against the government of New Guinea. But it is impossible to maintain such an argument in face of the clear words of s. 17 of the Laws Repeal and Adopting Ordinance. Section 17 provides: "All or any references to authorities, persons, places, subjects, matters or things in any act, statute, law, regulation or rule hereby adopted shall be taken as referring to corresponding or analogous authorities, persons, places, subjects, matters or things in the Territory". The Queensland Code is one of the "laws hereby adopted", and s. 17 plainly requires, for the purposes of the application of s. 44 of that Code in relation to the Territory for which it is adopted, the substitution of New Guinea for Queensland.