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Melbourne University Law Review |
ROGER DOUGLAS[*]
[This article examines one manifestation of the uneasy status of civil liberties in times of war — the prosecution of anti-war activists for offences under regulations made under the National Security Act 1939 (Cth). It argues that these prosecutions were characterised by both repression and restraint. Repression was reflected in the breadth of the anti-subversion regulations (which, interpreted literally, made advocacy of almost anything illegal), in occasional prosecutions for trivial offences which bore no relationship to the efficient conduct of the war, in disproportionately severe sentences (in Western Australia) and in judicial interpretations of the regulations which did little to limit their possible abuse. Restraint manifested itself in the rarity of prosecutions, in the rigorous filtering process applied by the Commonwealth Attorney-General’s Department, in occasional magisterial and judicial assertions of the need to construe legislation in the spirit of liberalism, and in sentences which (except in Western Australia) tended to be proportionate to the offence and were normally non-custodial. Repression is explained in terms of opportunity and political pressure. Restraint is explained in terms of lingering civil libertarianism on the part of some members of the government, along with the need to avoid alienating the government’s ‘loyal opponents’ by steps likely to be treated as manifesting anti-leftism, as opposed to anti-subversion. The article concludes with an assessment of the implications of this analysis, arguing that it casts doubt on the practicality of, and need for, anti-subversion laws. Where opposition to war is widespread, anti-subversion prosecutions may be both impracticable and counterproductive. Where opposition is limited, prosecutions are unnecessary.]
CONTENTS
Wars can be bad for civil liberties, especially when the very survival of a nation appears to be at stake.[1] If nations are to wage war successfully, they need to be capable of mobilising and supporting armed forces. This is likely to require military conscription, along with personnel policies which direct people from ‘inessential’ to ‘essential’ industries. Sustaining the infrastructure needed to support a war will require a massive diversion of resources, increases in taxation and the appropriation of various forms of property. Total war is difficult to reconcile with the maintenance of ‘economic’ liberties. More problematic is the relationship between war and ‘political’ liberties. While political liberties tend to suffer in times of total war, the reasons for this are unclear. It is important to distinguish between functional explanations, which treat the curtailment of political liberties as essential for the conduct of a total war, and sociopolitical explanations, which treat curtailed political liberties as a consequence of total war and its exigencies.
There are clearly some circumstances in which political liberties may be incompatible with the efficient conduct of a war. A degree of censorship is almost certainly needed to prevent the private and public communication of information which might be of use to the enemy. In cases of doubt, security interests may require that the uncertainty be resolved in favour of censorship at the expense of the freedom of political communication. But censorship carries with it the possibility of abuse. It may be used not only to protect national security, but as a means to harass dissident groups.
Effective defence might also require some control over attempts to sway the views of others. For instance, reg 42 of the National Security (General) Regulations 1939 (Cth) made it an offence for a person to attempt to influence public opinion in a manner likely to be ‘prejudicial to the defence of the Commonwealth, or the efficient prosecution of the war’.[2] The offence was not conditioned upon proof that the attempt had been successful, but it envisaged that in certain circumstances attempts to influence the public might be successful and might be inconsistent with the efficient prosecution of the war. In principle, these assumptions seem uncontroversial. Attempts to influence public opinion do sometimes succeed; indeed, therein lies a rationale for freedom of political expression. It is possible to point to particular beliefs which, if widely held, would clearly be inconsistent with the effective defence of a country. A widespread belief that there was nothing that could be done to resist an invading enemy could become a self-fulfilling prophecy. A belief that a war was being waged for sectional interests and without any real justification might make it difficult for a government to mobilise the resources needed to wage total war.[3] More controversial is the degree to which attempts to influence public opinion are likely to pose a threat to national security. After all, if a government — with all of the nation’s resources at its disposal — cannot employ its propaganda machine to prevail over the small groups of dissidents typically charged with such offences, serious questions must arise as to whether the government should be waging the war. Moreover, the tenuous nature of the link between public opinion and public behaviour means that even if ‘undesirable’ attempts to influence the public are successful, they may make no detectable difference to the government’s capacity to wage war.
It is also possible that the curtailment of political liberties may contribute to boosting morale insofar as it helps to eliminate the appearance of dissent and to reassure the majority that the ‘enemy within’ is being punished. It is clear that ‘unpatriotic’ behaviour can arouse considerable passion in time of war. It is not so clear, however, that government tolerance of dissent inclines ‘patriotic’ groups to become less committed in their patriotism. Nor is it clear that government repression of ‘unpatriotic’ groups reduces levels of apparent dissent or soothes unease among the general public.[4]
There are costs associated with the suppression of political liberties. One danger is that attention to the harm which may be done by potentially disloyal people may divert attention from the contribution that such people may nonetheless be capable of making to the war effort.[5] A second is that attacks on dissidents may enhance their determination to resist the government.[6] A third is that dissent may be useful to the extent that it draws the government’s attention to problems that need addressing and holds decision-makers accountable for their conduct. Measures which reduce the level of ‘disloyal’ dissent are also likely to discourage ‘loyal’ dissent and, in any case, will ultimately deprive governments of the advantages to be gained from expressions of opposition.
It is, therefore, at least arguable that the effective conduct of total war is consistent with tolerance of political dissent, even when that dissent involves challenges to the legitimacy of the war in question. The coexistence of total war and intolerance of certain forms of political dissent may reflect a belief to the contrary on the part of relevant policy- and decision-makers. It may also reflect circumstances associated with total war, which mean that those otherwise inclined to abridge the liberties of particular dissident groups may more easily do so in wartime than in peacetime.
There are several reasons why total war may create a climate in which a degree of political repression becomes feasible. Those who make the requisite sacrifices — whether willingly or unwillingly — are apt to feel hostile to those who avoid making, or refuse to make, similar sacrifices.[7] They may feel particularly hostile to those who argue that their sacrifices are in vain. They are likely to have little sympathy towards those who suffer lesser inconveniences as the state goes about its business. Moreover, when a country faces an enemy, opposition to the war may be conflated with sympathy with the enemy, so that what might have been legitimate politics prior to the outbreak of war comes to be perceived as disloyalty once war has been declared. Equating dissidents with the enemy may be of particular importance when the enemy is powerful and unreachable and where dissidents are close to hand. As a result, dissidents may become a surrogate for the true enemy.
Such considerations may affect governments in different ways. For governments that are generally intolerant of dissident groups, public hostility may provide an opportunity to do what might be legally or politically unfeasible in peacetime. For governments that doubt the wisdom of political repression, public resentment of dissidents may mean that they feel under pressure to be seen to be doing something. At the same time, regardless of their inclinations, governments are likely to be constrained by the need to maximise their moral authority.[8] The capacity to wage war will depend on the degree to which governments are able to appeal both to their natural supporters and to their traditional domestic adversaries. Governments may be tempted to take action against dissident groups, while at the same time being constrained by the fear of adverse reactions from groups that are both willing to provide the government with qualified support and wary of what they see as partisan attacks on dissenters.
This article examines one aspect of the Commonwealth government’s reaction to political dissent during World War II, with a view to an assessment of the degree to which total war requires and gives rise to the curtailment of two crucial political liberties: the freedom to communicate unpopular political ideas and the freedom of political association. In Part II, I briefly describe the major sources of opposition to Australia’s involvement in World War II. In Part III, I examine the wartime legislation which governed ‘subversive’ activities and the degree to which it is to be understood in terms of the particular concerns of the Menzies government as opposed to more general considerations. Parts IV and V examine the enforcement of the legislation, arguing that it was characterised by both considerable repression (in Western Australia) and by considerable restraint (in the eastern states), and that while Australia reacted more punitively to opponents of the war than the United Kingdom, its responses appear to have been more restrained than those of Canada and New Zealand. Finally, in Part VI, I consider the implications of these patterns, arguing that they suggest that there is little ‘need’ for repression, and that if political liberties are to be restricted in time of war, this should be by laws and institutions, which usually circumscribe such measures. While the Australian experience was that government officials could often be trusted not to abuse their wartime powers, it is also clear that wide-ranging anti-subversion laws are sometimes used to catch people whose activities pose no conceivable threat to the efficient conduct of total war.
In the early years of the war, its most active opponent was the Communist Party of Australia (‘CPA’). Prior to August 1939, the CPA had urged resistance to fascist aggression, as had communist parties throughout the world. It had criticised German, Italian and Japanese expansionism and had been active in organising anti-fascist pamphlets, demonstrations and boycotts. Communists had fought and died in the Spanish Civil War and the CPA had condemned the conservative parties for their appeasement policies and warned of the need to prepare for war against Japan. Its support for anti-fascist measures was, however, contingent on these being acceptable to the communist movement. It favoured collective security, but it showed little enthusiasm for the kind of military preparation needed if Australia and its potential Western allies were to play an effective role in an anti-fascist war. The Molotov-Ribbentrop Pact[9] caused some consternation within the CPA, although it came to be justified in terms of Western duplicity, and as an opportunity for the Soviet Union to buy time. Some communist leaders expressed their support for the war following Australia’s declaration of war on Germany. Others did not, and their will eventually prevailed. In finally deciding that the war was to be opposed, the CPA was ultimately guided by instructions from the Comintern. The Comintern, or ‘Communist International’ or ‘Third International’, had been established in the immediate aftermath of the Russian Revolution. It was an international organisation, membership of which was conditioned on a party’s subscribing to the Comintern rules. As a quid pro quo, the party enjoyed the legitimacy afforded by virtue of its association with the one communist party to have successfully seized power, and a limited amount of financial and other assistance from the Soviet authorities. Ostensibly self-governing, the Comintern was effectively under Stalin’s control. In the immediate aftermath of the pact, it was silent, but it soon made its analysis of the war clear. As early as 9 September 1939, it had issued a directive that the war was now an imperialist war. In successive directions to the CPA, the Executive Committee of the Comintern first made it clear that the war was not an anti-fascist war, but an imperialist one, and then that it was to be actively resisted. The correct approach to the war having been made clear, the CPA proceeded to adopt it.[10]
An imperialist war, it was argued, could only be bad for the working class. The government’s motives for entering the war were questioned, and the Allies were condemned for having a hidden agenda which was not the defeat of Hitler, but to pressure him to leave the West alone and to attack the Soviet Union instead. Somewhat inconsistently, criticism of the government’s preparations for war coexisted with criticism of the attempts by members and supporters of the government to avert war with Japan. The end of the ‘phoney war’ in May 1940 meant that the government’s motives were no longer so suspect, but opposition continued. The war remained an imperialist one, undeserving of working class support.
In practice, the CPA’s opposition to the war was relatively constrained.[11] It appears not to have engaged in any form of sabotage[12] and its attempts to stir up discontent within the armed forces appear to have been relatively half-hearted.[13] Furthermore, while the party was associated with industrial unrest which weakened the economy, these actions are better understood in terms of the rationality of industrial unrest rather than a desire to sabotage the war effort.[14] On the other hand, the CPA did denounce the war in its papers and in a series of pamphlets, and it continued to print and circulate anti-war literature after its proscription in June 1940.
Communist opposition to the war was brought to an end not by government measures but by Hitler’s decision to break his pact with Stalin. The German invasion of the Soviet Union transformed the CPA’s attitude to the war almost overnight.[15] The war was to be supported, and if support entailed curbing industrial militancy, that was a price that had to be paid. The CPA continued to combine this support with attempts to advance its particular political interests, but support for the war generally took precedence.
Supporters of the CPA were not, however, the only people to have opposed the war. Trotskyists denounced the war, and continued to do so even after the CPA’s volte-face in June 1941. There was also considerable opposition to the war from non-communists.[16] Within the Australian Labor Party (‘ALP’) and the union movement there was some opposition to Australian involvement in the war and considerable criticism of the nature of that involvement. In April 1940, a motion supporting Curtin’s policy of support for the war was passed by the Australian Council of Trade Unions Federal Conference by the narrowest of margins, and amendments condemning the war as imperialist and calling for the workers of the belligerent countries to overthrow capitalism were only narrowly lost. The Easter conference of the left-dominated New South Wales Branch of the ALP passed a motion condemning the war as imperialist.[17] Concerns that the working class was being asked to make sacrifices that the rich were not were reflected in hostility to all forms of conscription, and memories of the bitter debates of
1916–17, combined with Labor isolationism, were reflected in intense hostility to any suggestion of conscription for overseas service. Federal intervention saw the replacement of the executive of the New South Wales Branch of the ALP with one less hostile to the war, but supporters of the old executive split off and formed a new party: the State Labor Party, or the Hughes-Evans Labor Party. This party (which was effectively a communist front) advocated positions not markedly different from those advocated by the CPA. Indeed, during the period of the CPA’s ban, the Hughes-Evans Labor Party provided a degree of assistance to the CPA, including access to its newspaper. It eventually amalgamated with the CPA in 1943.[18] That said, even official Labor MPs — Eddie Ward in particular — sometimes used rhetoric similar to that employed in CPA denunciations of both the war and the way in which it was being fought.
There was ambivalence about the war even within the government. At the same time as the CPA was condemning the war as imperialist, Menzies was privately pondering whether there was anything to be gained from a war over a country about which ‘nobody really [gave] a damn’.[19] In May 1940, when Britain was deciding whether to continue fighting or to surrender, Stanley Bruce, the Australian High Commissioner to London, was urging a negotiated settlement. At this point, however, the war threatened a country about which Menzies did give a damn, and he favoured resistance.[20]
Opposition to the war also came from religious groups. There was some opposition from within the Catholic Church to involvement in the war, but this did not give rise to sustained anti-war activity.[21] The Jehovah’s Witnesses’ uncompromising opposition to the war aroused official hostility in Australia, just as it did in New Zealand and Canada, albeit hostility based on exaggerated ideas about the degree to which the Witnesses were acting on behalf of others rather than themselves.[22] Pacifism inspired little overt opposition to the war in Australia, in contrast to New Zealand where conflict between pacifists and the authorities resulted in numerous arrests.[23] However, the last three people to be charged under reg 42 of the National Security (General) Regulations 1939 (Cth) were ‘Christian pacifists’ who had allegedly sought signatures to a petition urging a negotiated peace with Japan.
It also goes without saying that Nazis were opposed to Australia’s involvement in the war, as were members of the fascii, local branches of the Italian Fascist Party, after Italy’s entry into the war in 1940. Nazis and fascists were typically German or Italian nationals, and in Australia were not dealt with by prosecutions, but by internment. Following the outbreak of war, large numbers of Germans were interned, including the overwhelming majority of the known members of the Nazi Party.[24] After Italy’s entry into the war, most prominent Fascisti were interned, along with some hapless apoliticals and anti-fascists.[25] Organised right-wing opposition to the war was rare. While there had been some sympathy towards the positions taken by Germany and Japan prior to the outbreak of the relevant wars, this sympathy did not carry over into criticism of Australia’s involvement once war had begun. The only ‘rightist’ group to engage in public opposition to the war was the Australia First Movement. Its opposition is memorable not because it struck the faintest chord with its audience, but because of the government’s overreaction to the group’s activities following the arrest of four of its associates for allegedly plotting to overthrow the government in the event of a Japanese invasion of Western Australia.[26]
The only other local groups to cause much concern to the government were a number of anti-Semitic groups associated with the League of Rights.[27] While these groups may not have been totally opposed to the war,[28] language in some of their pamphlets could be taken as suggesting otherwise.[29] Moreover, in attacking the financial system, they potentially threatened the government’s capacity to raise loans. It is clear, though, that active opposition to the war was the exception. Far more widespread were criticisms of the way in which the war was being run. These took their most public form in debates about how Australian troops should be deployed, and how the nation could be best mobilised to meet the threats with which it was likely to be, and was, confronted. They were reflected in feelings of resentment towards the perceived injustices associated with mobilisation. At a more mundane level, they took the form of the grizzling and whingeing that are probably inevitable when a democracy is at war.
To understand the wartime prosecutions, one must start with a review of the relevant legislation. The federal Parliament met shortly after the declaration of war on 3 September 1939. On 9 September 1939, it passed the National Security Bill 1939 (Cth). The Bill received Royal Assent the same day. The National Security Act 1939 (Cth) (‘National Security Act’) resembled its 1914 counterpart — the War Precautions Act 1914 (Cth) — and the equivalent legislation in Canada, New Zealand and the United Kingdom.[30] Section 5 of the Act, its most important section, conferred on the Governor-General the power to make regulations for securing the public safety and for the defence of the Commonwealth.
Section 10 of the Act governed trials of people charged with offences. All offences under regulations, and under subordinate legislation made under powers conferred by regulations, were offences under the Act.[31] They could be tried either summarily or on indictment.[32] In the former case, the maximum penalty was a fine of £100 and six months imprisonment; in the latter, there was no upper limit on the size of the fine or the term of imprisonment.[33] Courts might also require the defendant to enter into a recognisance to comply with the provision in relation to which the offence was committed. In default of the defendant agreeing to enter into the bond, the court could order up to six months imprisonment.[34] Prosecutions on indictment were to be in the name of the Attorney-General. Summary prosecutions required the written consent of the Attorney-General or the Minister for Defence, or of persons acting within their written authority.[35]
Four days later, the government gazetted the National Security (General) Regulations 1939 (Cth) (‘General Regulations’). These created a number of offences. Regulation 41 made it an offence to try to cause disaffection among service personnel or among people engaged in essential services, or to possess any printed matter which, if disseminated, would cause such disaffection. Regulation 42 (which was to be the basis of almost half the ‘political’ prosecutions) made it an offence to attempt to influence public opinion or the opinion of any section of the public (in Australia or elsewhere) in a manner likely to be ‘prejudicial to the defence of the Commonwealth, or the efficient prosecution of the war’, or to do or possess anything with a view to such an attempt. Prosecution under regs 41 or 42 required the Attorney-General’s consent.[36] These regulations were supplemented by reg 42A, which was made on 9 January 1941 and was replaced by a new and slightly less restrictive version on 27 March 1941. The amendments, however, were not sufficient to save the regulation from disallowance by the House of Representatives on 3 July 1941. Regulation 42A of the General Regulations overlapped with reg 42, but criminalised statements which were likely to lead to a breach of the peace, along with ‘subversive statements’. Such ‘subversive statements’ were defined to include statements likely to undermine public morale, as well as those likely to undermine confidence in banking or the currency, so as to prejudice attempts to raise money to finance the war. The earlier version of the regulation also covered statements calculated to adversely affect war-related production. The purpose of the regulation was to catch statements which had the potential to undermine support for the war, notwithstanding that they might not have been made with the intention of influencing public opinion.[37]
At least some of the behaviour which fell within regs 41 and 42 of the General Regulations would also have constituted sedition under the then Crimes Act 1914 (Cth) ss 24A–24E (‘Crimes Act’). Seditious purposes included the exciting of disaffection against British, Dominion and Australian governments and Constitutions.[38] Attempts to cause disaffection among service people and those engaged in essential defence services (which is what reg 41 of the General Regulations proscribed) might well involve pursuing the seditious purpose of arousing disaffection against the Crown or the Commonwealth, the likely targets of such disaffection. Similarly, the intemperate language which characterised some anti-war propaganda almost certainly meant that it could have constituted both an offence under reg 42 of the General Regulations and the utterance or publication of seditious words under the Crimes Act. In 1940, two defendants were prosecuted for uttering seditious words. Henry Leuthold was convicted by the Brisbane Police Court on a sedition charge based on pro-Nazi utterances and was sentenced to six months imprisonment.[39] Later, Redvers McVilly, a Jehovah’s Witness, was convicted of sedition by a Hobart magistrate after he told some residents of Crabtree not to put their faith in the King.[40]
However, from the standpoint of the Commonwealth, sedition law was unlikely to constitute an effective means of dealing with attempts to disrupt the war effort. For one thing, the scope of sedition law was unclear. Given the decisions in Burns v Ransley[41] and R v Sharkey,[42] it is arguable that much anti-war propaganda could have been classed as seditious. But these decisions post-date the war, and they came as a surprise to the Commonwealth’s legal advisers, who had doubted whether the prosecution of Burns could succeed.[43] In 1939, the Commonwealth could not be confident that subversive propaganda would be classed as seditious by courts. In any case, even if some anti-war propaganda might have been seditious, it is possible to envisage propaganda which would not be. Arguments that it was neither in Britain’s nor Australia’s interest that the war be waged could not easily be classed as attempts to excite disaffection and, in any case, might bring the defendant’s behaviour within the ‘good faith criticism’ defence provided by what was then s 24A(2) of the Crimes Act.
There was a further reason for not relying on sedition law: defendants in sedition cases had a right to opt for trial by jury. While juries would probably have been unsympathetic to anti-war propagandists, they could not be relied upon to convict in cases which might only technically have been sedition. In state sedition trials, for instance, juries had typically been reluctant to convict.[44] Moreover, George Knowles, the Commonwealth Solicitor-General, had been sensitive to the vagaries of juries in giving advice on whether to prosecute for sedition.[45] The perceived drawbacks of sedition law had been sufficient to ensure that, in the 19 years since the sedition provisions had been added to the Crimes Act, they had never been the basis for a prosecution, even during the turbulent depression years.
The offences created by the General Regulations, by contrast, had several advantages over the sedition offences. They were not subject to a ‘good faith criticism’ defence (although, in practice, such a defence was given de facto recognition by the Attorney-General’s Department); they encompassed propaganda which was calculated to impair the war effort, whether or not it was likely to arouse disaffection; and defendants charged under the General Regulations could be tried summarily.
In April 1940, the General Regulations were amended by the addition of reg 17A. This made it an offence for people to print for publication, to publish or to have in their possession any paper that bore in any way on the war, and which did not include details of the printer and the person or body responsible for the paper. The new regulation was placed in Part II of the General Regulations — ‘Espionage and Acts Likely to Assist the Enemy’ — and followed reg 17, which made it an offence to obtain, record, communicate, publish or possess information about the Commonwealth’s defence forces or weaponry, or information which might be directly or indirectly advantageous to the enemy. On its face, it reads like an attempt to discourage the printing of information which might be of military use to the enemy. Yet in reality it had little to do with espionage or disclosure of military information, and more to do with attempts to influence public opinion. Its purpose was to give teeth to the censorship system for which provision was made in reg 16 of the General Regulations.
In the months prior to the making of reg 17A, Publicity Censorship[46] had been involved in ongoing conflict with the CPA. While communist media had been allowed to operate according to the self-censorship system which governed the media in general, frequent breaches of censorship standards prompted the government to order that a full copy of communist publications be submitted for pre-publication censorship. The requirement to submit copies would be ineffective unless sanctions were provided for failure to do so. Moreover, the government was concerned by a number of anonymous pamphlets which clearly infringed censorship standards and which had not been submitted for approval. Regulation 17A was intended to facilitate the imposition of sanctions. If publications included details of their printers and publishers, this would facilitate the task of proving responsibility. If they did not, this would expose those involved in their production and distribution to possible prosecution.
Regulation 17A also covered possession of ‘anonymous’ material, although it was a defence if the possessor could prove ‘lawful excuse’. This obviously strengthened the regulation since it obviated the need for the prosecution to prove that a person found in possession of anonymous material possessed it for the purposes of disseminating it. The relatively objective criteria for guilt under the regulation made it a particularly attractive one for prosecutors. The following month, in May 1940, reg 17A was supplemented by reg 17B which provided that the Minister for Defence could declare communist publications to be prohibited, whereupon it became an offence to print or publish such publications.[47] The presses, type and materials used for the purposes of publication of a prohibited paper were forfeited to the Commonwealth. In August 1940, reg 17A was amended so that possession of papers not carrying details of the printer and publisher was an offence, even if the paper had been printed prior to the making of the regulation.[48] This obviated the problems that might arise in relation to a prosecution for possession of an undated paper relating to the war, but it also meant that people could be prosecuted for continuing to possess papers which had been legal when first printed.
Regulation 17A overlapped with state printing legislation,[49] which also required that printed matter contain details of the printer and publisher. There is at least one instance of an anti-war propagandist being prosecuted under a state printing Act.[50] However, there were two problems that prevented prosecutors from relying on state legislation. First, with the exception of New South Wales,[51] the legislation did not cover material produced by mimeograph. Second, the maximum penalty for state offences was a fine and confiscation. By contrast, the Commonwealth regulation covered all forms of reproduction, and provided for imprisonment.
In June 1940, the government made the National Security (Subversive Associations) Regulations 1940 (Cth) (‘Subversive Associations Regulations’). Under these regulations, a body was declared to be unlawful if the Governor-General, giving notice in the Commonwealth of Australia Gazette, regarded the body as prejudicial to the defence of the Commonwealth or to the efficient prosecution of the war.[52] Regulations 7–9 of the Subversive Associations Regulations created offences. It became an offence to advocate an unlawful doctrine via the press or over the radio.[53] This offence was later extended to include possession of material advocating unlawful doctrines.[54] Regulation 8 made it an offence to hold or convene a meeting to advocate unlawful doctrines and provided that an averment by the prosecutor that a meeting was held for such a purpose should be prima facie evidence against an accused. Regulation 9 made it an offence to solicit, receive or pay funds for the purposes of promoting any unlawful doctrine, and included an averment provision. ‘Unlawful doctrines’ included any doctrines or principles advocated by a body which had been declared to be unlawful, and any principles which were prejudicial to the defence of the Commonwealth or to the efficient prosecution of the war.[55]
The purpose of the Subversive Associations Regulations was to give the Commonwealth the power to ban the CPA and its associated organisations. Immediately after the making of the Regulations, notices were gazetted declaring the CPA and two associated bodies — the League for Peace and Democracy and the Minority Movement — unlawful.[56] The government also used its powers to ban a number of fascii, Italy having recently entered the war.[57] Over the next seven months a number of other communist and Trotskyist bodies were added to the list of declared bodies.[58] Several Jehovah’s Witnesses groups were declared in 1941.[59] In deciding which bodies to ban, the Commonwealth sometimes acted on surprisingly obsolete information. The selection of targets suggests that the Commonwealth was by no means as well-informed as one might have expected. The Minority Movement had been dissolved by the CPA, its approach to unionism no longer consistent with the party’s desire to play an active role in the running of trade unions.[60] The League for Peace and Democracy had been dissolved by its members in December 1939.[61] At the time it was banned, the Revolutionary Workers’ League had ceased to exist.[62]
Regulation 7 of the Subversive Associations Regulations overlapped with reg 42 of the General Regulations. However, reg 7 did not cover oral attempts to influence public opinion, and reg 42 did not extend to advocacy of doctrines which were unlawful by virtue of their having been advocated by an unlawful association. Regulation 7 of the Subversive Associations Regulations also overlapped to a considerable extent with reg 17A of the General Regulations. Regulation 7, however, had exclusive operation in relation to proscribed doctrines unrelated to the war, and in the improbable event that a publication of an unlawful association contained full details of its printer and publisher. Regulation 17A had exclusive application where the anonymous publication did not advocate a proscribed doctrine. The areas where either regulation would have had exclusive operation would typically have been areas where the constitutionality of such operation would have been questionable. In the cases which were actually prosecuted, prosecutors could almost invariably have relied on either regulation.
The Subversive Associations Regulations also had the potential to overlap with Part IIA of the Crimes Act, which provided that certain organisations were unlawful and that those involved in the affairs of such organisations were thereby guilty of various offences. An association was unlawful if it advocated or encouraged the overthrow by revolution of the Australian Constitution, or the violent overthrow of an Australian government or that of another civilised country.[63] While the unlawful associations provisions had been drafted with a view to the proscription of the CPA, attempts to use them against the party had failed. The first attempt had left open the question of whether the CPA was an unlawful body. The second ended in a compromise, but one prompted by the suspicion that the CPA was probably not an unlawful association for the purposes of the legislation.[64] Moreover, even if the CPA were found to be an unlawful association, there was a further difficulty. Supposing the CPA were banned, if it were to resurrect itself in a different guise, proving that its reincarnation was also an unlawful association might have been difficult. Even in the early 1930s, John Latham, the then Attorney-General, had concluded that the only way of tackling the CPA was to ban the party and its associates as such, rather than on the basis of their alleged attributes. In peacetime, this was not constitutionally possible.[65]
In wartime, however, it probably was possible.[66] The formula adopted in the Subversive Associations Regulations was clearly superior to the difficult procedures under Part IIA of the Crimes Act. It did not require proof that the offending body actually constituted any kind of threat to the war effort. This meant that bodies could be proscribed expeditiously, so that if a proscribed body were to reincarnate under a new name, it could promptly be re-proscribed. The illegal status of a body would be readily ascertainable. It was therefore not surprising that once the Commonwealth had decided that the CPA should be banned, it chose not to rely on Part IIA of the Crimes Act but on the simpler procedures of the Subversive Associations Regulations.
Implicit in the National Security Act was the assumption that anti-war measures involve a degree of experimentation. The General Regulations were initially based on predictions about the kinds of problems that the government was likely to face. Up to a point, they drew on the Commonwealth’s experiences during World War I, but there were several World War I measures which were not replicated in the General Regulations. In particular, there was no equivalent of the Unlawful Associations Act 1916 (Cth), which was the World War I analogue to the Subversive Associations Regulations. This is probably not surprising. Drafts of the regulations had been prepared well before the outbreak of war, and those who prepared them had little reason to believe that the war would be opposed by the CPA, given its hostility towards both Hitler and Japan. Indeed, even when the regulations were made, the party’s attitude to the war was still ambiguous. Even after it had become clear that the CPA would be opposing the war, no attempt was made to tighten the General Regulations until April 1940.
From early January 1940, however, the Commonwealth had been considering how best to respond to communist opposition to the war. Menzies was opposed to a ban on the CPA. In a January 1940 meeting with a deputation from the Central Committee of Interstate and Overseas Ship Owners, Menzies had presented powerful arguments against banning the party: a ban would be hard to implement; it would create martyrs; and it might distract attention from dangerous noncommunists, while catching harmless communists.[67] A conference of military and police representatives in early 1940 had discussed the issue. The conference ‘did not think it desirable at present to declare the CPA an illegal association, because such action would give the party undesirable publicity and further its cause’.[68] It did, however, recommend that censorship be tightened and that regs 41 and 42 of the General Regulations be amended so as to expand the range of people who might give permission for prosecutions.[69] The two regulations were left unchanged, but regs 17A and 17B of the General Regulations can be understood as attempts to respond to increasing communist reluctance to comply with the censorship authorities.
The decision to ban the CPA has been variously explained. Two developments seem to have prompted the decision.[70] One was the formation of a coalition government between the United Australia Party (which had previously been governing as a minority government) and the Country Party, which had traditionally been more committed to banning the CPA than its urban partner. Banning the party might have been part of the price demanded by the Country Party for its participation in the coalition. Alternatively, the Country Party’s participation may have shifted the balance in Cabinet so that the ban became governmental policy. The other crucial development seems to have been a communist-supported miners’ strike. Such explanations suggest that the Subversive Associations Regulations might not have been passed had Labor been in power. Consistent with this suggestion is the fact that the British government’s decision not to ban the Communist Party of Great Britain appears to have been partly attributable to the influence of Labour members of the national government.[71] However, there is also evidence to suggest that party ideology may not have been a particularly important consideration in relation to the decision to ban the CPA. The ALP made no attempt to disallow the Subversive Associations Regulations and did not remove the formal ban on the CPA until 18 months after the party’s change of line in mid-1942.
Moreover, wide-ranging anti-subversion regulations were not uniquely Australian. In both Canada and New Zealand, regulations provided for the proscription of subversive organisations, notwithstanding that Canada was governed by a party which had repealed Canada’s equivalent of the unlawful associations provisions of the Crimes Act[72] and notwithstanding that, at all relevant times, New Zealand had a Labour government.[73] Moreover, both the New Zealand and Canadian governments used their powers to ban allegedly subversive organisations. In October 1940, the New Zealand government had used its equivalent regulation to ban the Jehovah’s Witnesses, and while it did not ban the New Zealand Communist Party, it had set in motion the machinery for doing so, and the party may have been saved from illegality only by the German invasion of the Soviet Union.[74] Canada made considerable use of its powers, banning the Communist Party of Canada and more than a dozen allied organisations, a number of fascii, the Jehovah’s Witnesses and a body called Technocracy Inc.[75]
In all three countries, the bans commenced around mid-1940, just as Britain was beginning the fight for its very survival. While local considerations determined the precise nature of the response to subversive organisations,[76] it seems clear that the choice of responses was strongly influenced by the state of the war.
Despite widespread reservations about the war, prosecutions under the General Regulations and Subversive Associations Regulations were rare, especially in states other than Western Australia.
It is difficult to know precisely how many people were prosecuted for offences under the regulations. Discussions of the number of communists arrested for offences under either the General Regulations or the Subversive Associations Regulations generally put the figure at about 50, but rarely state the basis for this estimate.[77] Macintyre suggests that the figure of 50 is an underestimate.[78] My estimate is that the government approved the prosecution of at least 69 people (including fascists, pacifists, Trotskyists, non-Trotskyist communists and a lone Jehovah’s Witness, Redvers McVilly, against whom a reg 42 charge was withdrawn following his conviction for uttering seditious words) under the regulations and that, of these, 61 were tried (including four whose cases were dismissed after the prosecution chose not to call evidence).[79]
Arrests did not always mean prosecutions. In a number of cases referred to the Attorney-General’s Department for consideration, officials recommended against prosecution. Even after the regulations were changed to allow prosecutions based on literature published before the date of the making of the regulations, it was not the practice of the Attorney-General’s Department to institute proceedings in relation to such literature. It was enough that the literature was seized.[80] In interpreting reg 17A of the General Regulations, Whitlam, the Crown Solicitor, concluded that a particular pamphlet could not be said to constitute information or comment on the war simply because it opposed conscription and criticised the government as quasi-fascist. Nor, according to Whitlam, could criticism of conscription fall within reg 42 of the General Regulations so long as the conscription issue was an open question which was the subject of legitimate public debate.[81] Watson, a Deputy Crown Solicitor, considered that publications should be examined as a whole. He regarded the same pamphlet as ‘borderline’, despite his conclusion that
[t]he pamphlet might be said to be of a subversive nature in the sense that it tends to undermine confidence in the Government and bring about, or contribute to, an absence of unity; and a lack of confidence, and a sense of disunity could be argued to be prejudicial to the defence of the Commonwealth.[82]
Whitlam went further and concluded that the pamphlet did not fall within reg 42.[83]
The Subversive Associations Regulations were generally read down, so that they applied only to activities inconsistent with the efficient prosecution of the war. Thus, in Doblo’s case, Whitlam recommended against a prosecution based on Doblo’s possession of four copies of The Spark, an internal CPA circular, on the grounds that while the publications attacked capitalism and urged a world struggle against imperialism, they could not be said to be prejudicial to the defence of the Commonwealth or the efficient prosecution of the war.[84] ‘Unlawful doctrine’ was given a narrow meaning. As far as Whitlam was concerned, a successful prosecution would require proof of the content of the doctrines and principles advocated by the CPA. It was therefore not enough that pamphlets should be ‘communistic’.[85]
In 1941, Clausen, a Deputy Crown Solicitor, considered that possession of The Guardian, a communist newspaper, could not be said, of itself, to be sufficient to ground a charge of possessing a publication wherein an unlawful doctrine was advocated.[86] There could even be problems proving that the publication was indeed the The Guardian. He considered that a prosecution under reg 42 of the General Regulations might succeed, but Whitlam recommended against prosecution.[87] Whitlam also recommended that E R Pearce not be prosecuted for his possession of The Pilot, a communist newsletter. While the newsletter might be subversive, its criticism of members of the government for their allegedly pro-Japanese leanings were not enough to bring the paper within reg 7 of the Subversive Associations Regulations.[88] Moreover, Whitlam drew a distinction between ‘sheer invective’ and ‘advocacy’.[89]
Sensitivity to problems of proof underlaid another documented decision to recommend against prosecution. In discussing the possible prosecution of George Scott, Whitlam expressed concern about the problems of proving that a particular doctrine was communistic, noting that it was harder to prove this under the regulations than it was under Part IIA of the Crimes Act.[90] A raid on premises occupied by H Ostler uncovered duplicating equipment, a typewriter and more than 1000 copies of the Communist Review. Watson advised that, while Ostler almost certainly knew what was going on, there was no evidence of his active involvement in illegal activities, and that consequently he should not be prosecuted.[91] Even when the Attorney-General’s Department considered that there were legal merits to a prosecution, it would recommend against prosecution if it thought that a court might acquit.[92]
The vast majority of those prosecuted under the General Regulations and the Subversive Associations Regulations were leftist opponents of the war. Most of these appear to have been communists,[93] but defendants included at least two Trotskyists, one or two leftist members of the ALP and a member of the Industrial Workers of the World, who seemed mildly aggrieved that her behaviour had not hitherto attracted the attention of the authorities.[94] Three Christian pacifists were prosecuted in 1942,[95] but they appear to have been the only pacifists ever prosecuted. Only four ‘Hitlerites’ appear to have been prosecuted under the regulations.[96]
Most of the political prosecutions under the General Regulations involved charges under regs 17A or 42.[97] In cases that went to trial (including four in which the prosecution led no evidence), 21 defendants were charged under reg 17A (all in connection with communist literature) and 20 were charged with offences under reg 42, of whom one was a Trostskyist, three were pacifists and three were ‘Hitlerites’. One noncommunist leftist, one communist and one fascist were charged under reg 41. One leftist and one ‘Hitlerite’ were charged under reg 42A and one leftist was charged with an offence under reg 17B.
Prosecutions under the Subversive Associations Regulations were somewhat less common: 22 people, of whom at least 14 were communists, were prosecuted under reg 7, six under reg 8, and one under reg 9.[98]
Despite the potential for overlap between the charges, defendants were generally charged under only one regulation ¼ only 15 defendants were charged under two different regulations. In 14 of these cases, defendants were charged under reg 17A and another offence.[99] The remaining defendant was charged under regs 41 and 42 of the General Regulations. In most of the ‘multiple charge’ cases, the charges arose out of different facts. In at least one case, however, the General Regulations reg 17A charge and the General Regulations reg 42 charges were regarded as alternatives. In another they seem to have been based on the same literature. This was also the case in relation to at least one of the cases involving charges under reg 17A of the General Regulations and reg 7 of the Subversive Associations Regulations.
Prosecutions were largely limited to offences committed within a 14 month period between April 1940 and June 1941. The only defendants prosecuted for offences under the relevant regulations committed outside that period appear to have been three Christian pacifists, charged in relation to a petition urging a negotiated settlement with Japan.[100] Very few defendants were charged on the basis of public acts, such as speeches or actual distribution of subversive material. Most were charged on the basis of possession of subversive material. In a considerable number of these cases, there were grounds for suspecting that the defendant may have possessed the articles for the purposes of distributing them. In some cases, however, charges of possession were brought even when there were no grounds for suspecting that the defendant had retained possession of the article other than for private purposes.
Five defendants were charged following statements made at public meetings. James Starling was charged following an address to an anti-conscription meeting on 19 April 1940. The speech included passages critical of the war, describing it as imperialist; as offering nothing for the working class; as a war against freedom; and as a war which would culminate in an attack on the Soviet Union.[101] Phyllis Johnson was charged in relation to a speech given at an anti-conscription meeting where she had said that ‘Menzies admires Hitler because Hitler did things in Germany that Menzies would like to do here.’[102] She was also charged under reg 17A of the General Regulations[103] for having been in possession of two pamphlets ¼ Character of the War and The Peace Question ¼ at the time of her arrest. Thomas Garland and Francis Rowan were charged under reg 42 of the General Regulations[104] on the basis of speeches that they had made on 26 June 1940 at a public meeting in Adelaide called by the League Against Conscription. The speeches included extremely critical comments about the then government, its members and policies.[105] Violet Wilkins was charged under reg 41 of the General Regulations[106] on the basis of a speech given on the Perth Esplanade calling for service people to join the Industrial Workers of the World and take control of their own affairs.[107]
Several other defendants were charged with oral attempts to influence public opinion, but not on the basis of addresses to mass meetings. These included Mr and Mrs Owen of Geraldton. A tradesman who called at their house made a remark about the war, whereupon Mrs Owen proceeded to denounce the British government and rejoice in the prospect of its imminent overthrow by revolution. According to one report of the trial, the tradesman had gone to their home on another occasion and, while he was there, Mrs Owen had tried to tune in to Radio Moscow. According to that report, Mrs Owen had also told another visiting tradesman that she had books which would enlighten him.
The Owens were not, however, charged under reg 42 of the General Regulations. Mr Owen was charged under Subversive Associations Regulations reg 7[108] on the basis of communist literature which was subsequently found at their house. Mrs Owen was charged with being knowingly involved in her husband’s offence.[109] The only other communist to be charged on the basis of an oral attempt to influence the opinions of a small group of people was Fred Paterson, the most prominent communist to be charged under the regulations. He was charged under reg 42. At a meeting of the Townsville City Council on 15 May 1941, a motion had been put that a special committee of three members of the Council meet with representatives of the Returned Sailors’, Soldiers’ and Airmen’s Imperial League of Australia (‘RSSAILA’) to discuss arrangements for a farewell to departing service people. Paterson, a member of the Council, moved an amendment whereby it was to be explained at the farewell that:
1 the policy of the war was determined by the kings of industry and finance;
2 that it therefore did not reflect the wishes and desires of the people;
3 that it was not a war to defeat Nazism and fascism but to determine which group of millionaires would dominate the world; and
4 that various socialist policies must be implemented to ensure the defeat of fascism and Nazism.
The motion lapsed through want of a seconder. Prior to the meeting, Paterson had given a copy of his proposed amendment to a local journalist.[110]
Several ‘rightists’ and pacifists also fell foul of reg 42 of the General Regulations on the basis of comments made to small audiences. Arthur Jeffrey had told the driver and a passenger in a car in which he was travelling that ‘a man was a fool to go away and fight for this country’ and that ‘if Hitler came here conditions could not be worse than they were under British rule’.[111] John Martin had allegedly said while arguing in a barber’s shop that ‘I hope Britain will not win the war. We would all be better off under Hitler’.[112] He was charged under regs 41 and 42 of the General Regulations. After an altercation with a barmaid in a pub, Joseph Moore was alleged to have said: ‘I am a Hitlerite, and all Australians can go to hell’.[113] In 1942, three Christian pacifists were charged under reg 42 after having allegedly attempted to persuade people to sign a petition calling for peace negotiations with Japan.[114]
Several defendants were charged with having distributed ‘illegal’ literature. These included Francis Sheridan, a constable with the Northern Territory Police, who was charged at Alice Springs with distributing pamphlets advocating doctrines prejudicial to the conduct of the war. The prosecution alleged that he had given two pamphlets to another person, intending that that person would pass them on to others.[115] E V Marshall was accused of distributing a pamphlet ¼ Where Does Labor Stand? ¼ and was charged under reg 17A of the General Regulations. David Cunningham’s offence was being in possession of a pamphlet advocating an unlawful doctrine. However, according to prosecution evidence, he had been distributing the pamphlet.[116] Edward Crowe was charged under reg 7 of the Subversive Associations Regulations on the basis of having distributed several copies of a communist publication (and was also found to have possessed multiple copies of several illegal publications).[117] Horace Street was prosecuted under reg 42 of the General Regulations after having been caught distributing copies of There is a Path to Peace.[118] Paddy Troy was charged under the General Regulations reg 17A with distributing a paper, The Spark (the charge being based on a single act).[119] Marie Nielsen was charged under the General Regulations reg 17B with having distributed The Guardian, a banned publication.[120] Scanlon’s crime was to prepare three posters, headed ‘Fascism declared by Herr Menzies’. He then posted them on the wall of a shop near a tram stop, at a hostel and on a notice board at the mine where he worked. He was charged under the General Regulations reg 17A and the Subversive Associations Regulations reg 7.[121] Theodore Jones allegedly possessed a number of stickers and copies of Home Front for distribution.[122] The only communist to be charged with serious attempts to distribute literature was Adam Ogston, who was charged under reg 42 of the General Regulations with possession of leaflets entitled Freedom Press, these having been found at a shop where he lived.[123]
The most systematic distributor of literature was, however, a nameless fascist charged with having distributed three copies of Action Post. The charges were representative. He had admitted to having posted between 150–200 copies of his work to firms and public bodies, with a view to their content being read out as correspondence and thereby communicated to a wide audience.[124]
Most defendants were charged on the basis of their possession of proscribed material. In several cases, it was clear from the evidence that the defendants were also involved in its production or distribution. Frederick James, the first Queenslander to be charged under reg 42 of the General Regulations had been found in possession of 3000 handbills headed ‘The Tribune is Silenced; Communism Speaks’.[125] James Conroy was picked up by police while walking along Pitt Street, Sydney, and was found to have in his possession six stencils for preparing a roneoed paper, Trade Unionists ― Fight the Warmongers in Your Own Ranks. He was charged under the General Regulations reg 17A with possession of both the stencils and copies of the paper.[126] The raid on John Morris’ rooms yielded not only a number of inadequately identified publications, but materials which could be used in the production of literature.[127] Horace Ratliff and Max Thomas were found in possession of a typewriter, a duplicating machine, paper and a number of pamphlets.[128] G Scott had been found in possession of printing equipment and illegal publications.[129] Brook Morris was found to be in possession of a sufficiently sizeable quantity of literature to cast doubts on his claim that he possessed the literature for personal reasons only.[130] F H Lindsey was prosecuted for possession of a variety of illegal publications, including one of which he had had multiple copies.[131] E R Pearce was found to be in possession of 10 copies of The Pilot, a roneoed paper, the relevant edition of which claimed that Spender, the Minister for the Army, was in the pay of the Japanese.[132] James Elliott had allegedly been found in possession of multiple copies of the banned Tribune.[133] John Simpson had £95 in his possession, allegedly for the use of the CPA. He was also found in possession of three copies of the Communist Review dated January 1941 and 13 copies of Soviet Russia and the War.[134] John Wishart had been found in possession of 14 or 15 copies of a document headed: ‘To the Soldiers of the Second AIF. Military Punishment and the Rank and File.’[135] William Dean had been found in possession of only one offending document, a circular to be distributed to branches of the CPA in Western Australia, and lacking the details required under reg 17A. According to police evidence, he admitted that it had been circulated.[136]
On the whole, however, defendants were charged following raids or searches which yielded no more than a handful of pieces of illegal literature. Elizabeth Holdsworth was prosecuted for possession of four different copies of the Tribune.[137] Kevin Healy’s prosecution under reg 17A of the General Regulations was based on his possession of The Spark and a number of anti-war circulars.[138] The charges against Keith Wallbridge were based on his possession of The Coming War in the Pacific and a post-ban edition of the Tribune. The police added that they had found other documents, including Home Front, but there was no suggestion of possession for distribution.[139] The charges against J W Coleman were based on his possession of two copies of a prohibited publication, The Workers’ Star, which contained articles about his son-in-law.[140] A L Blair and Norman Neels were each charged under Subversive Associations Regulations reg 7 for possession of single copies of two pamphlets.[141] Francis Legeny was charged under General Regulations reg 17A for possession of two copies of the Communist Review, found in his possession after he was searched on alighting from a train.[142] Keith Wallbridge was charged under regs 7 and 17A of the General Regulations after being found in possession of a copy of the Tribune dated 7 April 1941 and a copy of the pamphlet, The Coming War in the Pacific.[143] Several defendants were charged on the basis of possession of a single publication.[144]
The only defendants to be charged under reg 8 of the Subversive Associations Regulations, which made meetings held for the purpose of advocating an unlawful doctrine illegal, also seem to have been engaged in relatively harmless activities. The meeting in question was held at the School of Arts in Bondi. The behaviour of those attending the meeting had led the caretaker to suspect that it was a meeting of Jehovah’s Witnesses and the local police were duly notified. They informed the federal authorities who, after trying in vain to eavesdrop on the proceedings, entered the premises and were told that the meeting was a ‘tennis meeting’.[145] There was far more communist literature in the room than is normal at tennis club meetings. Yet there was no evidence that the meeting was for purposes other than the discussion of general communist doctrines. Searches of the homes of the defendants revealed that two of them possessed some communist literature, but these defendants were charged under the General Regulations reg 17A, not reg 42.
As if to acknowledge the qualified consensus surrounding the war, the Commonwealth was reluctant to run the risks inherent in trial by jury in wartime subversion prosecutions.[146] All defendants charged with offences under the regulations were tried summarily.
Only rarely were the facts in dispute. Arthur Jeffrey, a ‘Hitlerite’, argued that the two witnesses who had given evidence about a subversive conversation had fabricated it.[147] Theodore Jones admitted possessing some literature which did not carry the prescribed details, but denied police claims both that he possessed a number of stickers and copies of the Home Front and that he had admitted that he was intending to distribute them.[148] Starling[149] and Johnson[150] argued that the police report of what they said at anti-conscription rallies omitted important parts of their speeches, and Violet Wilkins argued that police reports of what she allegedly said on the Perth Esplanade overstated the degree to which she was attempting to incite disaffection.[151] In most cases, however, defendants admitted the facts as alleged by the prosecutor. They did not deny having made speeches in which they had criticised the war or the way in which it was being run. They did not deny having been found in apparent possession of proscribed material. They do not even appear to have challenged prosecution evidence about admissions allegedly made to the police.[152] Even so, they rarely pleaded guilty.[153]
Instead they relied heavily on ‘legal’ arguments to the effect that the prosecution evidence could not sustain the charges to which it related. While some of the legal defences had little to commend them, the range of ‘legal’ defences is testimony both to the skill and thoroughness of the lawyers who represented defendants charged under the regulations and to the vagueness and complexity of the regulations themselves.
Several defences involved challenges to the validity of the regulations. Phyllis Johnson’s defence at first instance was based partly on a constitutional argument to the effect that the Commonwealth lacked the power to enact the National Security Act and, this being the case, it lacked the power to make General Regulations regs 42 and 17A.[154] Wishart made a similar challenge to the validity of reg 41 of the General Regulations.[155] Simpson and the ‘tennis club’ defendants challenged the validity of the Subversive Associations Regulations.[156]
Typically, though, defendants assumed the validity of the regulations, but argued that they did not cover their activities. Wishart questioned whether one could be guilty under reg 41 of the General Regulations if, at the alleged time of the defence, one did not have a present intention to incite disaffection.[157] Paterson and Martin asked whether one could be guilty of attempting to influence the public if the relevant audience consisted of only a handful of people, and if there was nothing to suggest that any of these people had, in fact, been influenced.[158] Rowan and Starling asked whether the prosecution had to prove both the attempt to influence the public and knowledge that the attempt, if successful, might interfere with the efficient prosecution of the war.[159] Charges against Scanlon under the General Regulations reg 17A gave rise to the question of whether handmade copies could be said to be ‘printed’.[160] Lindsey based a defence to a reg 17A charge on the contention that the prosecution had not done enough to prove that the allegedly fictitious printer was indeed fictitious.[161] In his Quarter Sessions appeal, John Morris argued that reg 17A did not apply when the publication in question consisted of a single sheet, printed on both sides.[162]
Several defendants charged under the Subversive Associations Regulations, including Doblo, argued that the allegedly offending pamphlets did not advocate anything: they simply presented a particular analysis. Eileen Perry and Doblo, moreover, argued that the advocacy of particular tactics could not be said to constitute advocacy of a doctrine. Counsel for Simpson challenged Detective Sergeant Richards to state the nature of the doctrines advocated by the CPA and elicited an admission of uncertainty.[163] In the ‘tennis club’ case, J B Sweeney argued that the defendants could not be said to have ‘held’ a meeting ¼ ‘hold’ meant ‘convene’ and the defendants had simply assembled. He also argued that inadequate particulars had been given and that the averment to the effect that the meeting was held for the purposes of advocating an unlawful doctrine was an averment of law, not of fact, and therefore of no evidentiary value.[164]
Both the General Regulations reg 17A and the Subversive Associations Regulations reg 7 provided that ‘lawful excuse’ could constitute a defence. Stickland argued that it was a lawful excuse that offending literature had been acquired prior to the enactment of the regulations which made possession an offence and that it was also a lawful excuse that he had kept the pamphlet for personal use only.[165] Coleman contended it was a defence that he had acquired two copies of an offending paper before they became illegal and that he had kept the copies for sentimental reasons only ¼ the paper contained a story about his son-in-law.[166] Phyllis Johnson argued that it was a lawful excuse for possession that she had taken the papers in question without knowing or discovering their contents prior to her arrest shortly afterwards.[167] Five defendants[168] argued that they were not in possession of the offending literature at all.
Despite the ingenuity of some of these defences, trials usually resulted in convictions, and these convictions usually survived appeals. In 61 trials, there were 10 acquittals at first instance, two cases in which defendants were convicted on at least one count, and 48 cases where defendants were convicted on all counts. I have found no details of the outcome of one trial, that of McKellar, a Christian pacifist. Four defendants[169] were acquitted after the prosecutor failed to call evidence.[170] In one case, it is unclear why the defendant was acquitted.[171] Details are, however, available about the other five acquitted defendants.
In the case of Starling, who was charged under reg 42 of the General Regulations in relation to comments made at an anti-conscription rally, Magistrate Pickup accepted a defence based partly on the inadequacy of the evidence: the prosecution evidence consisted of a police officer’s transcription of shorthand notes taken of allegedly objectionable features of Starling’s speech. The Magistrate accepted Sweeney’s argument that, before any inference could be drawn, the offending passages had to be considered in the context of the entire speech. It was apparent that substantial sections of the speech had not been reported and that the report ― in contrast to Starling’s grammatical language ― included numerous ungrammatical and incoherent sentences. Since the full text of the speech was not in evidence, the Magistrate held that it would be wrong to convict. Magistrate Pickup also found that Starling had been concerned not to hinder the war effort, but only to attack the methods adopted.[172]
Rowan had also been charged on the basis of remarks made at an anti-conscription rally. He was acquitted at first instance on the ground that, while his remarks were objectively likely to impede the efficient conduct of the war, it had not been proved that he had intended that effect. Sheridan had been acquitted on the basis of a ruling that giving pamphlets to one other person did not constitute distribution. Ogston was the only defendant to rely successfully on an argument to the effect that there was not enough evidence to support a finding that he was in possession of the offending literature. Albert Hooke, who had been charged under reg 42 of the General Regulations on the basis of attempts to gather signatures for a petition urging a negotiated settlement with Japan, was acquitted on the ground that the only people whose signatures he had solicited had been people who he knew shared his beliefs.[173]
The two Western Australian defendants who relied on ‘lawful excuse’ defences may have been unfortunate. In Stickland’s case, Magistrate Wallwork was not unsympathetic to the defendant’s argument that possession for personal use only could constitute a lawful excuse, but he drew a distinction between works which were of recognised literary merit, and those which were not:
It seems to be a reasonable interpretation of these regulations to follow the provisions of legislation relating to indecent publications, which make an exception in favour of scientific treatises, and works of recognised literary merit. The possession of political works of such standing could be lawfully excused under the National Security Regulations where the intention of the legislature was clearly not to suppress intelligent reading, but to prohibit the dissemination of subversive propaganda during the present state of war.[174]
As examples of works of recognised literary merit, he instanced works by Karl Marx and Adolf Hitler (specifically Mein Kampf), observing that no objection seemed to be taken to these, as evidenced by the fact that ‘[t]hey and many similar works, are for sale in book shops, and exposed in public libraries.’[175] The pamphlet, No War on Soviet Russia, did not fall within this category. Rather, it fell within the category of ‘subversive propaganda’.[176] But the fine of £5 which he imposed was remarkably lenient by Western Australian standards, and contrasts with Coleman’s sentence of four months at first instance.[177]
Generally, however, the trial courts appear to have had little sympathy towards the defendants’ arguments. In this respect, they had the general support of the appeal courts.
The only defendants to appeal successfully against a conviction in the subversion prosecutions were John Morris, Phyllis Johnson and William Allen, a Christian pacifist. Judge Hill allowed Morris’ appeal based on the contention that reg 17A of the General Regulations did not cover publications printed on both sides of a single sheet. This, however, was a pyrrhic victory: convictions on other charges stood and Morris’ sentence was not reduced. Phyllis Johnson’s appeal against a conviction under reg 17A succeeded. The Court accepted her claim that the circumstances under which she had taken and retained possession of the papers were such as to constitute a ‘lawful excuse’.[178] Judge Clyne accepted Allen’s contention that the reference in the General Regulations to the ‘present war’ meant the war between the Allies and Germany, and did not include the war against Japan, which had begun after those regulations were made. On appeal to the High Court, the Commonwealth’s arguments against this finding prevailed, but Allen’s was a nominal defeat only: the Commonwealth pressed for its interpretation of the law and not for a conviction ¼ its appeal was therefore dismissed.[179]
Stickland and Coleman came close to being acquitted. In Stickland’s case, the Full Court of the Western Australian Supreme Court (Northmore CJ and Dwyer J) agreed with the Magistrate that the pamphlet advocated unlawful doctrines, but could not agree on whether possession for mere personal use constituted a ‘lawful excuse’.[180] The conviction therefore stood.[181] Coleman’s appeal was dismissed by Dwyer J.[182] His Honour held that it was open to the Magistrate to find on the evidence that Coleman possessed the documents in question ¼ indeed, this was the only reasonable decision. There was more merit in the argument that it was a lawful excuse that the copies of the prohibited paper were acquired prior to the making of the Subversive Associations Regulations, but Dwyer J regarded himself as bound by the decision in Stickland v Nevin.[183] He implied that, but for this decision, he would have allowed Coleman’s appeal:
It is my duty, as I conceive it, therefore, whatever my opinion may be, to hold that acquisition before the date of illegality, that is, before the date of the Regulation introducing ‘possession’ as an offence, is not to be deemed a lawful excuse.[184]
Nor was it a lawful excuse that the document was retained for sentimental reasons. But, even if this was not a lawful excuse, it was a relevant consideration for the purposes of mitigating sentence. As such, Coleman’s sentence was reduced to the one month’s imprisonment he had already served.
All other defendants’ appeals failed. Wishart appealed unsuccessfully against his conviction under reg 41 of the General Regulations to a Court of Quarter Sessions of New South Wales and then purported to appeal to the High Court. Rich and Starke JJ treated his arguments with contempt. Dixon, McTiernan and Williams JJ found them to be untenable: there was ample authority permitting the delegation to the executive of the power to make regulations with respect to the defence of the Commonwealth.[185] Furthermore, the defence power was broad enough to ground reg 41 of the General Regulations.[186] The documents that Wishart possessed were clearly intended to cause disaffection among soldiers. The only possible problem facing the prosecution was Wishart’s contention that he had no intention of circulating the documents on the date of the alleged offence. Even if this was Wishart’s intention (and the Chair of Quarter Sessions had decided that it was not), that was immaterial. Time was not an element of the offence, and it was enough that Wishart had at an earlier date possessed the documents with a view to circulating them. The only issue to capture the Court’s imagination was whether Wishart was entitled to appeal, as of right, to the High Court, given that appeal as of right lay only from a magistrate’s decision, and Wishart had already appealed to a Court of Quarter Sessions, where his conviction was upheld. The Court held that the effect of the Quarter Sessions conviction was that the right to appeal no longer lay from the magistrate’s decision. Special leave to appeal was therefore required, but this was refused ¼ not that a right to appeal would have been of any comfort to Wishart had it been granted, given what the Court thought of his case.
Perry had been charged under reg 7 of the Subversive Associations Regulations. The Perth Court of Petty Sessions had fined her £50 and she appealed to the High Court.[187] Perry’s appeal was based on three grounds: that the contents of the document could not be said to be a doctrine; that the document was not a circular; and that she did not possess it.[188] In an extempore judgment, Rich ACJ observed that ‘Mr Hill [Perry’s counsel] put up a valiant fight in a hopeless cause.’[189] He dismissed the contention that the document did not advocate an unlawful doctrine, and that it was not intended to be circulated:
A perusal of Exhibit A [a copy of the document] shows that it was intended to be communicated issued or transmitted by subtle and secret means for the purpose of causing industrial unrest and stirring up strife. The document in question gives instruction (teaching) and directions in aid of these purposes and it advances arguments and opinions in favour of direct action. This constitutes advocating doctrines or principles within the meaning of the regulations.[190]
He also rejected the contention that Perry was not in possession of the document, which she argued on the basis that it was found in her locked car.[191] In even briefer judgments, Williams and Starke JJ agreed. Starke J’s judgment is of interest only in that it included an oblique reprimand to the prosecution for relying on irrelevant and prejudicial material linking Perry with Simpson and, by implication, his politics.[192] Williams J considered that ‘doctrine’ and ‘teaching’ could be equated, and that ‘teaching’ could include anything that was taught.[193] Rich ACJ appears to have assumed that general guides to action could be classified as ‘principles’, at least when supported by argument.[194]
In Rowan’s case, the Commonwealth successfully appealed to the High Court against a first instance acquittal. The Court agreed with the Magistrate that the words used in the document Rowan possessed were likely to prejudice the war effort. Unlike the Magistrate, they held that intention to produce the evil in question was not an element of the offence. The words of reg 42 of the General Regulations required only that there be an attempt to influence public opinion and that the effect of this attempt be prejudicial to the war effort. The nature and purpose of reg 42 was such that to require proof of an intention to produce the deleterious effect ‘would destroy its purpose and its efficacy.’[195] Only Williams J saw fit to explain why this might be so:
In time of war the necessity to protect the safety of the realm is paramount and must take priority over individual rights. The creation of such a state of public opinion would be just as prejudicial to this paramount necessity, whether it was brought about by a person who had a genuine belief that the statements he was making would not influence public opinion in this way, or by some one who was in the pay of the enemy and was deliberately attempting to do so.[196]
Starke J went further and doubted whether Rowan could really be said not to have intended to prejudice the war effort, but acknowledged that the Magistrate had had the advantage of seeing and hearing the defendant. He was therefore willing to concede that it was ‘possible that the respondent was a stupid and blundering man, who, in the excitement of the moment, made statements the effect of which he did not appreciate.’[197] Williams J also seems to have been sceptical and unsympathetic:
It is possible, therefore, that the defendant’s subversive remarks were made in the heat of the moment and under the influence of considerable but well-justified heckling. This only shows that at times like the present persons who cannot control their remarks under such circumstances would be well advised to refrain from public utterances.[198]
Although several defendants had earlier challenged the validity of the Subversive Associations Regulations at first instance, none of them pursued the issue before the High Court. It was not until after the Soviet Union entered the war that the High Court had to determine their validity. Even then, the challenge was brought not by the communists, but by the Jehovah’s Witnesses, and it arose in the context of a trespass action against the Commonwealth rather than an appeal against conviction for an offence under the particular regulations.[199] The plaintiffs argued that the Subversive Associations Regulations were invalid on the grounds that they were contrary to s 116 of the Constitution[200] and that they could not be justified as an exercise of the Commonwealth’s defence power. The High Court concluded that if the regulations could be justified as an exercise of the defence power, s 116 would not assist the plaintiffs. The majority (Rich, Starke and Williams JJ) concluded that the regulations were invalid, at least insofar as they purported to exercise the seizure of the plaintiffs’ property. However, Williams J, with whom Rich J concurred, pointed out that, after the banning of the Jehovah’s Witnesses, the prohibition on the advocacy of unlawful doctrines meant that it was an offence under the regulations to conduct Christian church services.[201] Even given a generous construction of the defence power, this could not be justified under the Constitution.[202] Williams and Rich JJ recognised that it might be possible to sever the offending aspects of the definition of ‘unlawful doctrine’ so that regs 7 and 8 of the Subversive Associations Regulations applied only to doctrines insofar as their propagation threatened the defence of Australia, but doubted whether this was so. Since the case before them did not require a final decision on the validity of these regulations, they left the question unanswered.[203] Nonetheless, they did find that regs 3–6B were invalid. Starke J’s judgment was to similar effect, except that he concluded that the Subversive Associations Regulations were all invalid.[204]
Latham CJ, with whom McTiernan J agreed, pointed out that under the Subversive Associations Regulations, advocacy of adherence to the Ten Commandments, or of improvements to the education system, could constitute an offence.[205] The definition of ‘unlawful doctrine’ was therefore so broad as to be indefensible. He concluded that the problem could be solved by severing the words which defined unlawful doctrines by reference to their having been advocated by an unlawful association.[206]
The majority judgments in the Jehovah’s Witnesses Case sit uneasily with the decision by the same three judges in Perry v Basley.[207] In Perry v Basley, Rich, Williams and Starke JJ (who constituted the Court) had no doubts as to the defendant’s guilt. In the Jehovah’s Witnesses Case, they were strongly inclined to the view that the regulation under which Perry had been convicted was beyond the Commonwealth’s powers, and that it could not be saved by its being restricted to cases where the unlawful doctrine threatened the defence of Australia (as Perry’s pamphlet arguably did). The apparent inconsistency is somewhat illusory. Perry’s legal representatives did not raise the constitutional issue either at first instance or on appeal. Moreover, the basis for the charge was not that the ‘doctrine’ advocated by Perry was unlawful because it advocated communist principles. Rather, it was that in encouraging the fomentation of industrial discontent, the ‘doctrine’ threatened the efficient prosecution of the war. It evidently did not occur to Perry’s legal advisers that the regulation might be unconstitutional on the grounds that their Honours were later to suggest in the Jehovah’s Witnesses Case and, even if it did, it is likely that her advisers would have questioned the wisdom of using her case as a vehicle for challenging the validity of the Subversive Associations Regulations. In the circumstances of the case, it is probably not surprising that it did not occur to their Honours that there might be no constitutional basis for Perry’s conviction. That said, the contrast between the two decisions raises tantalising questions about the role of accident and strategy as determinants of the validity of Commonwealth legislation.
Of those convicted at first instance of offences under the regulations, 28 received prison sentences and 18 were fined (eight of whom were also required to enter into a recognisance). Four defendants were released on recognisance alone. Phyllis Johnson was imprisoned only because she refused to enter into a recognisance to be of good behaviour.[208] The best predictor of sentence was a jurisdictional variable, namely whether the defendant was sentenced in Western Australia: 89.5 per cent of those sentenced in Western Australia received prison sentences, as compared with 35.5 per cent of those sentenced outside the State. The charge on which defendants were convicted bore no relation to the type of sentence, nor to the quantum. Nor, at first sight, was there any relationship between sentence and a somewhat subjective measure of seriousness, which differentiated between ‘possession’ and ‘proselytising’ cases, and accounted for the number of items possessed or the number of people proselytised. However, when one allows for the location of sentencing, a statistically significant relationship between seriousness and the likelihood of imprisonment emerges for defendants sentenced in the eastern states.[209] Maximum sentences seem to have been more frequent than one would expect if they had been reserved for the most serious examples of the offence in question, but they were imposed only in a minority of cases.[210]
Consistent with this analysis are several egregious Western Australian sentences. Mr and Mrs Owen received sentences of six months for their ill-fated and patently unsuccessful attempt to convert a tradesman to the communist view of the war. Mr Owen’s war service record, and the Owens’ pleas of guilty, were to no avail. Scanlon’s six month sentence for his three posters criticising the government as fascist seems disproportionate to the offence (insofar as there was one).[211] Coleman’s sentence of four months at first instance was perhaps even more flagrant, given the circumstances surrounding his possession. Coleman was fortunate ¼ his case was taken on appeal and, despite the fact that his appeal against conviction failed, his sentence was reduced to the one month he had already served. Notably, Dwyer J used the occasion to affirm the principle that unorthodox views were not punishable as such, even in wartime:
It is true that he may hold certain unorthodox opinions, but I cannot regard the fact that he holds those opinions as being a reason why he should be punished. ... [T]here is no reason, because a man has an unpopular opinion, or a wrong opinion, that he should receive a greater punishment for an offence than others who may be thought to have orthodox opinions. ... In my view, in imposing the penalty the Magistrate was affected by matters which should not have been introduced regarding the accused. They certainly seem to have had a very serious effect on the Magistrate’s mind, because the offence, in the circumstances surrounding it, seems to have been of a minor character.[212]
Neither the Owens nor Scanlon appealed.
The regulations placed substantial limits on the right to criticise the war. Under the General Regulations reg 42, it was effectively an offence to argue that Australia should not be fighting the war. Regulations 17A and 17B of the General Regulations were capable of catching people who wrote anything about the war without providing details of the printer and publisher of the material. The Subversive Associations Regulations were even more far-reaching. Not only did they purport to authorise the banning of bodies which opposed the war, they banned the propagation of any doctrine advocated by a banned body.
The scope of the regulations might have been limited had courts chosen to give them a narrow interpretation, but they seemed disinclined to do so. While several magistrates expressed concern at the range of activities covered by the regulations, appeal courts generally resolved debatable legal issues in favour of the government. The decision in Francis v Rowan[213] meant that a person was guilty under reg 42 of the General Regulations even if the person had not realised that their attempt to influence public opinion would, if successful, interfere with the efficient prosecution of the war.[214] Furthermore, the High Court in Perry v Basley[215] gave ‘doctrine’ a far broader meaning than that attributed to the term by the Crown Solicitor.[216]
Australian governments were sparing in relation to prosecutions under the regulations. Logically, a paucity of prosecutions can be interpreted in at least three ways. First, it may reflect a paucity of offences. If so, it does not tell us much about governmental restraint or otherwise. Second, it may reflect a lack of visible offences. If so, a low level of prosecutions is not necessarily indicative of restraint ¼ although it might be insofar as the lack of visibility reflects the limited resources devoted by the government to apprehending those engaged in relatively secretive conduct. Third, it may reflect restraint in enforcement.
The first explanation does not appear to be sufficient. While we know comparatively little about the degree to which noncommunists committed wartime political offences, we do know that communists regularly engaged in behaviour which would have brought them within the regulations. Even after the CPA and its papers were banned, communist writings continued to appear, albeit in an attenuated form. Communist pamphlets continued to be produced and meetings were held.[217] Yet, despite the numerous offences entailed in the maintenance of the CPA between June 1940 and June 1941 (and afterwards, when it continued to exist as an illegal organisation), fewer than 50 communists appear to have been convicted under the regulations, and most of these were convicted under the General Regulations, rather than the Subversive Associations Regulations. It also seems that the Jehovah’s Witnesses continued to proselytise.[218] Nonetheless, there appear to be no cases in which these attempts resulted in prosecutions.[219]
The second explanation appears to constitute a major reason for the lack of prosecutions. Again, we know little about how noncommunist opponents of the war behaved, but we do know that communists generally took steps to keep their anti-war activities concealed from the authorities. Printing presses were spirited away to ‘safe’ locations. Pamphlets were shoved into letterboxes by night. Papers were sold to trusted purchasers. Forbidden documents were destroyed or kept well hidden. Moreover, according to communist accounts, police attempts to enforce the regulations were characterised by considerable ineptitude.[220] The paucity of prosecutions may, therefore, be partly attributable to the CPA’s capacity to outwit the government. Had known communists been carefully and systematically supervised, it is likely that many more would have been found to have engaged in nefarious activities or in possession of proscribed pamphlets. However, after the massive raids which accompanied the banning of the party ¼ and which rarely resulted in any prosecutions[221] ¼ the intensity of raids diminished sharply. One reason for the lack of prosecutions, then, lies in offenders’ success in concealing their offences, though this is difficult to disentangle from the limited resources devoted by the authorities to searching for evidence.[222]
The paucity of prosecutions also reflects a degree of tolerance ¼ at least in the eastern states.[223] It is apparent, for example, that prosecutions tended to be limited to cases where the prosecution had a good chance of success.[224] If every possible offence had been prosecuted, one would expect that there would have been numerous cases based on criticisms of the way in which the war was being conducted and a smaller number based on outright opposition to the war. The former would frequently have resulted in acquittals, since they would have included many borderline cases. In fact, most prosecutions related to reasonably clear-cut cases. Prosecutions under reg 42 of the General Regulations, for instance, were largely confined to cases where the defendant had allegedly sought to influence public opinion by arguing that the war itself was unacceptable.[225] Regulation 42 does not appear to have been used against people who accepted the need for the war, but who disagreed with the way in which it was being run.
It is also clear that prosecutions were governed by a number of de facto policies. Despite the breadth of the Subversive Associations Regulations, it is rare (outside Western Australia) to find examples of communists, or anyone else for that matter, being prosecuted under them for activities unrelated to the war. Well-known communists stood for Parliament as independents or as members of the Hughes-Evans Labor Party and we must assume that they advocated at least some communist principles.[226] Other communists, including Lance Sharkey and Stan Moran, spoke every week from their pitch in the Sydney Domain before an audience that included a number of shorthand writers from the state police and security services.[227] Yet, none of these highly visible communists was prosecuted. Indeed, the only prominent eastern states’ communist to be prosecuted was Fred Paterson.[228] Furthermore, while the government did not agree to lift the ban on the CPA until December 1942, arrests of communists ceased almost immediately upon the Soviet Union being brought into the war. Even in Western Australia, the prosecution of communists ceased once the CPA began supporting the war. Moreover, if communists were under-prosecuted, other opponents of the war were barely prosecuted at all. Even when the New South Wales Branch of the ALP was pursuing policies similar to those of the CPA, only one of its members was prosecuted. No member of the Hughes-Evans Labor Party appears to have been prosecuted under the regulations, nor any Jehovah’s Witness apart from Redvers McVilly (against whom a reg 42 charge was dropped after his conviction for uttering seditious words).
Despite all this, Australia’s response to communist dissidents seems severe when compared to the response in the United Kingdom. The British government rarely prosecuted communists, or any other anti-war activists, under its equivalent regulations, although a considerable number of communists were prosecuted for ordinary public order offences in connection with anti-war activities.[229] In contrast to New Zealand and Canada, however, Australia was generally sparing in its use of the regulations. In Canada, two communist papers ¼ the Clarion and the Clarté ¼ were banned in November 1939. By February 1940, 64 people had been arrested for offences under the Canadian subversion regulations, of whom 19 were imprisoned.[230] The Communist Party of Canada and 14 associated bodies were declared illegal on 6 June 1940, shortly before the ban on the CPA. While some communists were prosecuted for being members of an illegal organisation, the Canadian government relied heavily on the power to intern. Within a few months of the ban, more than 100 communists had been interned, and internments did not stop with the party’s change of policy in 1941.[231] Communists, however, were not the only group to face prosecution, imprisonment and internment. Hundreds of Jehovah’s Witnesses were arrested for offences under the Canadian regulations,[232] along with at least one ‘Technocrat’.[233] In addition, large numbers of Canadians were prosecuted under the Canadian equivalent of the General Regulations reg 42 for making statements prejudicial to the war effort, but which were apparently made under the influence of alcohol.[234] The prosecutions and bans did not prevent the illegal bodies and their members from pursuing many of their objectives, but they tended to discourage overt proselytising.[235] The bans were lifted slowly. Only in late 1942 did the Canadian government release interned communists. The ban on the party was not lifted until the end of the war[236] — although, as a compromise, the party was permitted to function from 1943 under a different name.[237]
Prosecutions of communists under New Zealand’s Public Safety Emergency Regulations 1940 (NZ) (‘Emergency Regulations’) began earlier than in Australia; the first decision to prosecute was made in February 1940. The New Zealand Communist Party was much weaker than the CPA, but its members were much more likely to be charged with and convicted of wartime offences.[238] In the course of 1940, dozens of communists were prosecuted for making or publishing subversive statements, most of whom received prison sentences.[239] Between 1941–43, numerous New Zealand pacifists were arrested under the Emergency Regulations for holding illegal meetings and for publishing subversive literature.[240] Two people were charged on the basis of anti-British statements and a handful of Jehovah’s Witnesses were charged with publishing subversive materials or participating in the activities of a subversive association.[241] Overall, in 1940, there were 59 charges of making or publishing subversive statements, of which nine were heard in the New Zealand Supreme Court. In one sense, these defendants were rather more successful than their Australian counterparts. Only one Supreme Court defendant was acquitted but, in the New Zealand magistrates’ courts, only 37 of the 50 defendants were convicted.[242] On the other hand, of those who were convicted, a majority received prison sentences, often for 12 months. By 1941, New Zealand’s enthusiasm for the prosecution of subversion offences was waning. In that year, there were only six such charges.[243]
As in Australia, courts in Canada and New Zealand occasionally emphasised the importance of protecting political liberties even in time of war, but more usually they approached the regulations on the basis that, in wartime, executive powers were to be given a broad construction. The protection of liberties required their temporary subordination to national security.[244]
While one may loosely refer to the Commonwealth’s response to anti-war activism, it is clear that the ‘Commonwealth’s reaction’ was, in fact, the sum of the reactions of a variety of institutions. The handling of anti-war activism depended on executive and legislative policy; the vigour with which political dissent was policed; the willingness of administrators to approve prosecutions; and the approaches taken by courts. Moreover, even within institutions, the handling of anti-war activism could vary according to who was making the relevant decisions. Different agencies were not, of course, completely independent.
While wide-ranging, the regulations set limits on the kind of behaviour that could be successfully prosecuted. Regulation 42 of the General Regulations required that there be an attempt to influence public behaviour. It did not, therefore, catch mere expressions of discontent. Regulation 17A of the General Regulations applied only in relation to publications relating to the war. It did not, therefore, apply to all the publications of anti-war groups. In addition, all regulations were ultimately subject to the requirement that they be justified as an exercise of the defence power contained in s 51(vi) of the Constitution. This was not an exacting requirement, but the decision in the Jehovah’s Witnesses Case highlighted the fact that it was a potentially material one.
The limits set by law were, in some respects, self-imposed; they were dependent on the way in which officials understood the law and on their reluctance to risk defeat in the courts. Senior officials in the Attorney-General’s Department were acutely sensitive to the problems of proof that could, but rarely did, arise under the regulations.[245] They also favoured a reading of the regulations which was consistent with the legislative and constitutional limits to which the regulations were subject.[246] The significance of the Attorney-General’s Department’s interpretations lies partly in, but extends beyond, the fact that the Attorney-General’s consent was required for certain prosecutions.[247] Police in both Queensland and New South Wales were critical of the Department’s failure to approve prosecutions which, in their estimation, could easily have been sustained. After the Attorney-General’s Department had advised against the prosecution of a well-known communist, the New South Wales Police wrote to the Director of the Commonwealth Investigation Branch to complain, warning that in the light of that decision, the New South Wales Police Commissioner had concluded that there was little point in devoting police resources to trying to track down the printers and distributors of subversive literature.[248] While this may simply have been a threat, aimed at producing either changes to the regulations (which were in fact made) or less obstruction on the part of the Attorney-General’s Department, it also suggests that the cautious attitude of the Department may in fact have made police less inclined to investigate potential offences under the regulations.
The outcomes of the trials of wartime dissidents suggest that the Attorney-General’s Department tended to err on the side of caution. The narrow interpretation its officials gave to ‘advocacy’ and ‘doctrine’ were implicitly rejected by the High Court in Perry v Basley. Courts tended to give a broader interpretation to reg 7 of the Subversive Associations Regulations than that favoured by the Department, although the decision in the Jehovah’s Witnesses Case vindicated the Department’s approach. The evidentiary issues associated with proving that publications were communist publications or advocated communist doctrines did not arise in practice. However, caution was justified. Defence cases were often argued with considerable technical aplomb, and while some magistrates seem to have been over-willing to convict, others gave the regulations a relatively narrow interpretation.[249]
Enforcement also seems to have been constrained by political considerations. The most important constraint on the government lay in its need to secure the support of the ALP and the union movement.[250] Following the 1940 election, the government’s slender majority meant that its capacity to govern was heavily dependent on the degree to which it could command the general support of the ALP ¼ and, even if its majority had been greater, its capacity to call for sacrifice was dependent on the degree to which its efforts received endorsement from the Opposition.[251] The government’s capacity to establish the economic basis for a total war depended on the cooperation of the union movement. The labour movement was wary of the government’s intentions, but was willing to cooperate with the war effort provided that its interests and concerns were recognised. John Curtin, the ALP Leader of the Opposition, gave Menzies considerable and generous support,[252] but this would have been jeopardised if the government had taken action against Labor’s anti-war wing.[253] Unions were willing to work with the government, but the price of cooperation was recognition of union sensitivities.[254] Thus, union papers were treated more favourably than communist papers, notwithstanding that they sometimes published very similar articles.[255] Communist union leaders could say certain things as union leaders, which they could not say as communists.[256] Following the banning of the CPA, planning for raids proceeded on the basis that no prominent union officials were to be targeted.[257] Failure to respect union sensitivities could mean industrial unrest, as evidenced by the instability following the internment of Ratliff and Thomas.[258] The support of the ‘loyal Opposition’ was conditional on its loyalty being recognised and reciprocated. The government seems to have been sensitive to the possibility that ‘undue’ repression could create ‘martyrs’ and alienate public support.[259]
That said, law and politics obviously operated unevenly across Australia. Western Australia was different. In part this reflects the vigour with which Detective Sergeant Richards of the Western Australian Special Branch pursued his prey, but it also seems to reflect a more general enthusiasm for repressive measures on the part of the Western Australian authorities. At the January 1940 conference of police and security officials, David Hunter, the Western Australian Police Commissioner, had been one of the most fervent advocates of repressive anti-communist measures.[260] Western Command had urged the internment of a rather larger number of dissidents than the other Commands.[261] Moreover, repressive measures tended to receive the imprimatur of the Western Australian courts. The vast majority of Western Australian defendants received prison sentences upon conviction.[262] Neither law nor politics constituted the constraint that they did in the eastern states. Yet Western Australian repression seems to have been directed at perceived threats to the war effort, rather than against dissidents per se. Once the CPA became a supporter of the war, prosecutions ceased, as they had in the eastern states, and the ever-vigilant Rogers directed his efforts to stamping out fascism.[263]
After mid-1941, prosecutions largely came to an end. In part, this is attributable to the defeat of the Country Party-United Australia Party coalition in the 7 October 1941 federal election. Herbert Evatt, the new Attorney-General, had doubted the wisdom and propriety of the ban on the CPA and there was considerable support within the ALP for a more tolerant attitude towards the party, especially given its enthusiastic support of the war. The change of government seems, however, to have been of only limited importance. Canada and New Zealand also appear to have become more tolerant, and in each country persecution of the unrepentant Jehovah’s Witnesses had largely ceased by 1943. Greater tolerance evidently reflected developments common to the three countries. The tide was shifting in favour of the Allies, and with this shift there appeared to be a growing willingness to tolerate dissent.
This article suggests that wartime political repression arises less from necessity than from the opportunities and pressures that war can create for such governmental action. The limited need for wartime repression is suggested by the fact that it is hard to point to any ill effects associated with relatively tolerant treatment of dissidents. Britain provides an outstanding example of a country which waged total war, while treating domestic critics of the war with considerable tolerance. Australia does not seem to have suffered any ill effects from the restrained way in which the anti-subversion laws were enforced in most of the country. There appear to be several reasons for this.
First, there are limits to what repression can achieve. In relation to the CPA, relatively mild repression seriously weakened the party’s capacity to proselytise and it may have weakened the party hierarchy’s capacity to impose discipline. It did not, however, prevent the CPA from meeting and producing literature. Nor did it prevent the CPA from functioning th