Pankhurst v Kiernan

This case concerned an appeal from a Court of Petty Sessions in Victoria to the High Court of Australia. The appellant, Adela Constantia Mary Pankhurst, had been convicted under section 4 of the *Unlawful Associations Act 1916-1917* for encouraging the injury of property during a speech. The prosecution relied on specific statements made by the appellant at a public meeting, which were interpreted as advocating for or approving of property damage. The appellant appealed her conviction, arguing that section 4 of the Act was beyond the legislative power of the Commonwealth Parliament, that it infringed section 80 of the Constitution, and that there was insufficient evidence to support the charge.

The High Court was required to determine whether section 4 of the *Unlawful Associations Act 1916-1917*, which criminalised the encouragement of the destruction or injury of property, was a valid exercise of the Commonwealth Parliament's defence power under section 51(VI.) and (XXXIX.) of the Constitution. The Court also considered whether there was sufficient evidence to establish that the appellant had encouraged the injury of property within the meaning of the section. The ground of appeal relating to an infringement of section 80 of the Constitution was abandoned by the appellant.

A majority of the High Court, comprising Barton, Isaacs, Gavan Duffy, Powers, and Rich JJ., held that section 4 of the Act was a valid exercise of the defence power. They applied the principles established in *Farey v. Burvett*, reasoning that in times of war, the defence power extends to measures that can potentially contribute to the defence of the Commonwealth. The Court found that preventing internal disorder and the destruction of property could indirectly aid the prosecution of the war by preserving national resources and preventing dislocation. They concluded that the appellant's speech, by approving of and encouraging property damage, fell within the scope of section 4. Higgins J. dissented, arguing that for a law protecting private property to be valid under the defence power, the Act must expressly or by necessary intendment demonstrate that Parliament considered the law necessary for the defence of Australia, a connection he found lacking in this instance.

The appeal was dismissed, and the rule nisi was discharged. The majority found that there was sufficient evidence to support the conviction, and that section 4 of the *Unlawful Associations Act 1916-1917* was a valid exercise of the Commonwealth's defence power.