On this amendment a very serious issue arises. A long discussion took place on this Article on the Committee Stage dealing with the effect of what I shall call, subject to protest—if I might put it that way— the proviso to clause 1 of the Article. Various suggestions were put forward from this side of the House as to the possible construction that would be put on this proviso, which would have the effect of limiting the right of free speech and the freedom of the Press. The President, I think, was to have considered some of the suggestions that we put forward, that the section was capable of being construed in such a way as to cut down the liberty of free speech and the liberty of the Press. Now I gather from the President that the only amendment that has been accepted, the only suggestion to which any weight has been attached at all, is the suggestion that the words "including criticism of Government policy" should be inserted in the proviso to clause 1, paragraph (i) of the Article. In my view the effect of that, so far from improving the Article, will, in fact and in law, render more forceful all the arguments we advanced here on the last stage of the measure in reference to the possible effect of this Article on the right of free speech and the liberty of the Press.
I do not wish to repeat my arguments again, but I must just refer to this aspect very briefly. I drew attention, on the last stage of the Bill, to the Latin maxim, Expressio unius est exclusio alterius, which means that if you express one thing in an Act of Parliament, by implication you thereby exclude a large number of other things. Here in the first part of this section the State guarantees liberty to citizens to express freely their opinions, subject to public order and morality. I stated here on the last occasion, and I re-state it here positively, that in the phrase “subject to public order and morality” are embodied comprehensively all the so-called limitations which exist in law and under our existing Constitution on the right of free speech and the liberty of the Press. Everybody admits that the right of free speech and the liberty of the Press, which is only another manifestation of the right of free speech, are subject to certain so-called limitations.
The right of free speech and the liberty of the Press must not be exercised in a manner that would be blasphemous, seditious or indecent. All these matters are, as a matter of law and construction, clearly enshrined in the phrase "subject to public order and morality." What is sought to be done in the proviso to that right is to emphasise that, in reference to certain methods by which the right of free speech and the liberty of the Press may be exercised, they are to be subject to certain limitations. The proviso, putting it in a very wide way, sets forth that the State shall endeavour to ensure that certain organs of public opinion, such as the cinema, the radio and the Press, while preserving their rightful liberty of expression, shall not be used to undermine public order or morality or the authority of the State. It is proposed now to make that clause read: "to ensure that organs of public opinion, such as the radio, the Press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State."
If you insert these words, "including criticism of Government policy," the danger is that you will exclude a large variety of other matters and thereby make it appear that because it was necessary to put in, as a sort of exception to this controlling power, criticism of Government policy, these other matters, not being included in that exception, are subject to the right of control in this proviso. The proviso, when it is amended according to the President's amendment on the Paper at the moment, allows criticism of the Government. Does it allow criticism of a member of the Government? You can criticise the Government, which is defined in the Constitution by Article 28, clause 1. You may, if you like, criticise 15 members who are an entity called by the Constitution "The Government." But can you criticise the public actions of one of those members operating in his Departmental capacity? Can you criticise his Departmental actions? Can a newspaper refer in an adverse way, in the wind of adverse criticism, to the actions of the Minister for Posts and Telegraphs? That is not included here. That may be said to be subject to this right of control in the interests of the education of public opinion. Deputy Norton may go out to his constituency at the present moment and criticise the Minister for Posts and Telegraphs because of his failure to give adequate wages to a certain class in the Post Office. After this Constitution is passed, can he go out and criticise that particular Minister, or must his criticism, in order to be constitutional, be directed against the Government? That is one of the examples which I give as the possible construction that may be put upon this. Can you criticise a Parliamentary Secretary? Can you criticise Deputy Hugo Flinn, the Parliamentary Secretary to the Minister for Finance at the moment, or somebody else in his position hereafter, for his actions in connection with unemployment grants and matters of that kind? Can you criticise a county council, or are you liable to be controlled, in the interests of the education of public opinion, by a Government that wants to muzzle criticism in that line?
"Government policy," I am told, is the alternative amendment. I had not seen that, I confess. I was dealing with the Paper I got this morning. I should not be surprised if amendments to this Constitution sprung out of the air. Until my colleague here pointed cut to me that there was another amendment in typescript, I had not known it. The so-called improvement in the typescript makes the matter worse, because you can only criticise Government policy now. You cannot criticise departmental actions. You cannot criticise the policy of a particular Minister. Possibly it might be said that you could, because there is a collective responsibility, and therefore the policy of one member is the policy of the whole. I have already criticised adversely the policy of the Government in this Constitution in regard to that aspect. I will even take it at "policy." Departmental action, administrative action, is not policy. Action carried out administratively in a Department by the officers of the Department, for which the Minister is responsible to the House, is not policy. It may not be policy. Can we criticise a member of the Government? Can we criticise a Parliamentary Secretary? Can we criticise a county council for their policy? Inferentially, we cannot. All you say here is that you can criticise Government policy.
Towards the close of the debate on this clause on the last Stage I asked the President would he agree with me that if a newspaper published an article deliberately intending to undermine the authority of the State, that would be something contrary to public order? He agreed with me that it would, as obviously it would. This clause still reads—and apparently it is the President's intention that it should continue so to read as part of our Constitution, if this becomes the Constitution of the State—that "the education of public opinion being, however, a matter of grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the Press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or public order." You start the phrase by saying that the right is to be exercised subject to public order and morality, and you go on to say that the State shall endeavour to secure that this expression of opinion and the liberty of the Press shall be exercised subject to public order or morality or public order. On its face it is nonsense, read in that way, construed in that way.
Already, on the last Stage, I have directed the attention of the House to the fact that the courts always endeavour to give not a nonsensical meaning to Acts of the Legislature; still more will they be inclined to give a meaning, which will not make it nonsense, to a phrase or clause in the Constitution. The courts will endeavour to construe this clause as having some meaning, being a proviso to the general guaranteed right of free expression of opinion and convictions. The courts can construe this in no other way, in my opinion, than as being a limitation upon that right, and if it is a limitation upon that right it is a duty on the State to do the things that are set out here in the interests of the education of public opinion—to control the radio, the Press, and the cinema. Why the phonograph should not be controlled, or the gramophone, or the loud speaker, I do not know. At all events, they pick the radio, the Press and the cinema. We may have television, and I suppose that will not be controlled in the interests of the education of public opinion.
The danger of this is not that it is going to be construed as nonsense. In my opinion, as it stands at the moment, it is capable of being construed as nonsense. The danger is that the courts will say that the Legislature never inserted in the Constitution, above all things, a clause that could bear nothing but a nonsensical meaning, and that, therefore, it being put by way of a proviso to the statement of the general right of free expression of opinion, it must be something inserted by way of enabling the Legislature to control the exercise of that right. Once you start controlling the exercise of that right, there is almost an end to the right of free expression of opinion and the liberty of the Press. There is certainly an end to it in the way that has existed in this country before this State was set up at all, and in the way that it was continued under our Constitution. Again, I emphasise the fact that everything that is desirable, everything that exists at the moment and that has existed in this country and in England since the freedom of the Press and freedom of speech became one of the constitutional rights of the people, is included in the expression, "subject to public order and morality."
Again, I referred to the fact that the word "libellous" has not been mentioned in this Article. It was always one of the so-called limitations on the right of free speech and freedom of the Press that it should not publish libellous matter. We find blasphemy and indecency mentioned. Criticism of Government policy is mentioned, but libellous matter is not, although it is one of the things which at the moment, in accordance with the legal definition of freedom of speech, the right of free expression and freedom of the Press is imposed upon the exercise of these rights. It may not be a very serious matter that the word "libellous" is left out, but when the words, "public order and morality" include libel, sedition, blasphemy, indecency, treason and other matters contrary to the authority of the State, and when you put in something specifically on top of that which can only be properly construed as a limitation of that right, then that Article in the Constitution is a dangerous one, and ought to be fought as far as possible.