Douglas, Roger --- "Law, War And Liberty: The World War II Subversion Prosecutions" [2003] MelbULawRw 3; (2003) 27(1) Melbourne University Law Review 65

[*] BA (Hons), LLB (Hons) (Melb), M Phil (Yale), PhD (La Trobe); Barrister and Solicitor of the Supreme Court of Victoria; Senior Lecturer, School of Law and Legal Studies, La Trobe University.

[1] See generally Donald Johnson, The Challenge to American Freedoms: World War I and the Rise of the American Civil Liberties Union (1963); Michael Linfield, Freedom under Fire: US Civil Liberties in Times of War (1990); Neil Stammers, Civil Liberties in Britain During the 2nd World War: A Political Study (1983).

[2] Similar regulations were made by other Commonwealth governments: Defence (General) Regulations 1940 (UK) reg 39B; Defence of Canada Regulations, CRC 1940, reg 39A; Public Safety Emergency Regulations 1940 (NZ) reg 2.

[3] Smaller wars can, of course, be waged despite considerable public opposition to them.

[4] Needless to say, there may be considerable dispute over what patriotism involves. For the purposes of this argument, ‘unpatriotic behaviour’ is behaviour which is generally regarded as threatening the interests of the nation. ‘Repression’ is also a potentially value-laden term. For the purposes of this article, repression is used to describe government activities which limit the freedom of groups and individuals to associate and propagate their beliefs. Obviously there are degrees of repression. Moreover, I do not intend to imply that what I describe as repression is unjustifiable. I think it normally is, but this is a conclusion to be defended rather than reached by definitional fiat.

[5] Margaret Bevege, Behind Barbed Wire: Internment in Australia During World War II (1993) xv, 7, 26, 84–5, 128, 140–1, 167, 212, 214–17, 236 makes the point that the adverse effects of internment on the labour force stem both from the fact that internees are no longer able to be productive and from the fact that people need to be diverted from other duties in order to supervise them. Recognition of this is to be found in various British policies concerning the release of internees: Stammers, above n 1, 50–6.

[6] Gianfranco Cresciani, Fascism, Anti-Fascism and Italians in Australia 1922–1945 (1980)

175–6, 180–1. See also Bevege, above n 5, 234–7.

[7] See, eg, the degree to which Australians were concerned about equality of sacrifice: Paul Hasluck, The Government and the People 1939–1941 (1952) 281–4.

[8] Thus, the British government agreed to consult with opposition parties in relation to wartime regulations, rather than using its numbers to defeat a disallowance motion: Stammers, above n 1, 17–22.

[9] The Molotov-Ribbentrop Pact (or the Soviet-German Non-Aggression Pact) was signed on 23 August 1939. Under its terms, the two parties agreed that neither would attack the other. It was further agreed (although this was not immediately apparent) that the Soviet Union would be free to occupy Estonia, Latvia, Bessarabia and eastern Poland in exchange for Hitler having a free hand in relation to western Poland. A month later, Ribbentrop and Molotov agreed on a communiqué committing the parties to cooperation and friendship rather than mere non-aggression. See, eg, François Furet, The Passing of an Illusion: The Idea of Communism in the Twentieth Century (1999) 315–30 for an account of the pact and its context.

[10] On CPA attitudes between 1935–41, see W J Brown, The Communist Movement and Australia: An Historical Outline — 1890s to 1980s (1986) 53–139; Alastair Davidson, The Communist Party of Australia: A Short History (1969) 78–9; Carole Ferrier, Jean Devanny: Romantic Revolutionary (1999) 164–8; Ralph Gibson, The People Stand Up (1983) 355–79; Robin Gollan, Revolutionaries and Reformists: Communism and the Australian Labour Movement

1920–1955 (1975) 79–85; Oriel Gray, Exit Left: Memoirs of a Scarlet Woman (1984) 48–52; E F Hill, Communism and Australia (1989) 25–6, 28–9, 105; Stuart Macintyre, The Reds (1998) 385–9; John McKenzie, Challenging Faith (1993) 78–84, 90–3; Carolyn Rasmussen, The Lesser Evil? Opposition to War and Fascism in Australia, 1920–1941 (1992); Bernie Taft, Memoirs of Bernie Taft: Crossing the Party Line (1994) 36–8. For analyses of Trotskyist interpretations of the war, see Gollan at 86–9. The British, Canadian and New Zealand communist parties had initially supported the war, but like those Australian communists who had, their stance changed to opposition once the Comintern’s views were made clear. The Communist Party of the USA saw the war as imperialist from its commencement. See John Attfield and Stephen Williams (eds), 1939: The Communist Party of Great Britain and the War (1984); Norman Penner, Canadian Communism: The Stalin Years and Beyond (1988) 161–5; S W Scott, Rebel in a Wrong Cause (1960) 138–9.

[11] Gibson, above n 10, 376 notes that while the CPA tended to adopt a Leninist analysis, it did not follow this analysis through to its logical extreme and, as such, did not seek to turn the imperialist war into a civil war so as to bring about a revolution.

[12] There had been fears that there would be attempted sabotage in the event of war between Britain and the Soviet Union (but this eventuality did not come to pass): Intelligence Summary No 25, Prepared for the War Cabinet on the Basis of Information to Hand, 1 December 1939, in Menzies Papers (National Library of Australia, Canberra) MS 4936/2/36/3; Secretary, Military Board to the Secretary, Department of the Army, 22 December 1939; Communist Party: Secret, Navy to Secretary, Department of Defence Coordination, 22 December 1939; Air Force to Secretary, 23 December 1939 (National Archives of Australia) A2671/1 1/1940. Throughout his work, Hasluck makes no reference to any actual acts of sabotage by or on behalf of the CPA: see Hasluck, above n 7.

[13] For concerns about such attempts, see Intelligence Summary No 25, Prepared for the War Cabinet on the Basis of Information to Hand, 1 December 1939, in Menzies Papers (National Library of Australia, Canberra) MS 4936/2/36/3; Navy to Secretary, 22 December 1939 (National Archives of Australia) A2671/1 1/1940. As to the nature of such attempts, see Macintyre, above n 10, 394–5. Military Intelligence was unconcerned about communist activities in South Australia: Communism: 4th Military District, 18 July 1940 (National Archives of Australia) A6335/6 11.

[14] Gollan, above n 10, 93–4; Macintyre, above n 10, 392; Allan Martin, Robert Menzies: A Life (1993) vol 1, 297–8.

[15] There was some uncertainty about how to respond. Initially, news of the invasion was greeted with disbelief and, given poor communications with the Comintern, the CPA was reluctant to commit itself immediately, lest its decision turn out to be erroneous: see Davidson, above n 10, 81–2; Gollan, above n 10, 99–100.

[16] Macintyre, above n 10, 391–3.

[17] Gollan, above n 10, 91–2; Hasluck, above n 7, 248–9.

[18] Davidson, above n 10, 80; Len Fox, Broad Left, Narrow Left (1982) 79–97; Macintyre, above n 10, 405–6. During the period of the ban, several communists stood as Labor Party candidates for the New South Wales Parliament.

[19] Macintyre, above n 10, 391.

[20] John Lukacs, Five Days in London: May 1940 (1999) 142.

[21] Gollan, above n 10, 89–91.

[22] William Kaplan, ‘The World War Two Bans on the Jehovah’s Witnesses in Canada and Australia: Do Constitutional Protections Really Work?’ (1991) 9 Australian Canadian Studies 5, 12–13.

[23] See generally Nancy Taylor, The New Zealand People at War: The Home Front (1986) vol 1, 171–208.

[24] A 1943 memo lists 48 members or candidate members of the Nazi Party in Australia. Of these, 32 were interned, five had returned to Germany, two were in Japan and two were dead. Seven were not interned. The memo lists two other suspected members — one dead and the other interned. See Deputy Director SA to Director-General of Security, 12 November 1943 (National Archives of Australia) A9108/3 8/5. This file also includes details of the degree to which members of various Nazi front organisations had been interned. It also reports that, of 61 listed New South Wales members of the Nazi Party, 47 were interned. Four had returned to Germany, one had gone to Batavia and one to New Zealand, while another was in Perth. There was no record of the whereabouts of seven others.

[25] Cresciani, above n 6, 171–81; Bevege, above n 5, 60–1.

[26] See generally Bruce Muirden, The Puzzled Patriots: The Story of the Australia First Movement (1968).

[27] As early as 1940, Publicity Censorship, the government agency responsible for the censorship of the Australian media, was monitoring the anti-Semitic publication, New Times: Deputy Chief Publicity Censor to Deputy Director, Department of Information, 17 May 1940 (National Archives of Australia) SP195/1/1 72/1/5 pt 3. In 1941, consideration was being given to whether Eric Butler should be prosecuted and whether his pamphlet, The World-Government Plot Exposed (1940), should be banned: Croll, Acting Chief Publicity Censor, to Knowles, 4 April 1941 (National Archives of Australia) SP109/3/1 316/03. In 1942, Publicity Censorship anguished over whether and to what extent the New World Reconstruction Movement should be allowed to attack the financial system. In 1943–44 there was considerable debate about the degree to which publications such as New Times and pamphlets such as Communism — Why Not? could and should be banned, with Publicity Censorship deciding, with some reluctance, that they did not fall foul of their guidelines: (National Archives of Australia) SP109/3/1 316/38; SP109/3 316/39.

[28] An intelligence report on one of their leading publicists, Eric Butler, advised that intelligence reports on Butler were favourable, apart from his views on Social Credit: Croll, Acting Chief Publicity Censor, to Knowles, 4 April 1941 (National Archives of Australia) SP109/3/1 316/03. Perhaps, though, it was these views that were the problem.

[29] In The World-Government Plot Exposed (1940), Butler wrote: ‘A stream of Australian youth is leaving to be smashed to bloody pulp in the second war to “save democracy” which, like the first war, was fomented by Jewish International finance, will be financed and controlled by the same group, and will mean their undisputed world domination’: at 7.

[30] See War Measures Act, RSC 1927, c 22; Emergency Regulations Act 1939 (NZ); Emergency Powers (Defence) Act 1939, 2 & 3 Geo 6, c 62.

[31] Section 10(1).

[32] Section 10(2).

[33] Section 10(3).

[34] Sections 10(6), 14.

[35] Section 10(4). On 5 March 1940, the Attorney-General delegated his authority to the person holding the office or performing the duties of the Deputy Crown Solicitors in Sydney and Melbourne: Commonwealth of Australia Gazette, No 48, 12 March 1940, 589. On 13 March 1940, the Minister for Defence Coordination delegated his authority to those holding the offices or performing the duties of the Adjutant General and the District Commandants: Commonwealth of Australia Gazette, No 56, 20 March 1940, 701. Within the Army there was ongoing uncertainty about who might initiate prosecutions. On 23 January 1941, the Secretary, Department of Defence Coordination advised the Secretary, Army that the War Cabinet had decided that prosecutions under reg 42A(1) were to be pursued only with the consent of the Crown Solicitor or a Deputy Crown Solicitor: (National Archives of Australia) MP508/1 4/708/959. In February 1941, Military Intelligence, 4th Military District sought advice as to whether the District Commandant could consent to prosecutions under regs 17B and 42A. He was advised that this was so: General Staff Southern Command to 4th Military District, 28 February 1941 (National Archives of Australia) MP385/4 1940/218. Shortly afterwards, there was a further query from the 4th Military District. Having referred two cases to the Deputy Crown Solicitor only to have consent to prosecute refused, the 4th Military District wished to know whether it was necessary to get this approval or whether the District Commandant’s approval was sufficient: Major, General Staff Officer III (Military Intelligence) 4th Military District to Intelligence Section, Southern Command, 6 March 1941 (National Archives of Australia) MP385/4 1940/218. Again he was advised that such consent was unnecessary: Lieutenant Colonel, General Staff Officer (Military Intelligence) to Intelligence Section, 4th Military District, 17 March 1941 (National Archives of Australia) MP385/4 1940/218. In practice, most if not all eastern states’ prosecutions appear to have been commenced with the approval of the Attorney-General’s Department, and Western Australian prosecutions appear to have been approved by Defence.

[36] General Regulations regs 41(2), 42(2).

[37] See (National Archives of Australia) A472/6 W15A pt 1.

[38] Section 24A(1).

[39] Leuthold was German-born, but naturalised. He had given a Nazi salute to soldiers inside a city hotel and had said: ‘I am a good Nazi German, and proud of it’: ‘Six Months’ Gaol for Sedition’, The Courier-Mail (Brisbane), 12 April 1940, 7. When questioned, he stated: ‘I must have had too much beer.’

[40] ‘Jehovah’s Witness Charged: National Security Prosecution’, The Mercury (Hobart), 1 October 1940, 2; ‘Sedition Charge Denied: Jehovah’s Witness Adherent in Hobart Police Court’, The Mercury (Hobart), 1 November 1940, 4; ‘Seditious Utterances: Sect Adherent Found Guilty’, The Mercury (Hobart), 2 November 1940, 2; ‘Portentous Warning: “No Room for Disloyalty in British Empire”’, The Mercury (Hobart), 7 November 1940, 2. As far as I know, Leuthold and McVilly were the only two people prosecuted for wartime sedition, but the fact that their trials received relatively cursory attention outside their home states raises the possibility that there may have been others whose cases did not even achieve the limited coverage that these cases attracted. The Courier-Mail report leaves open the possibility that there had been other prosecutions outside Brisbane: ‘Six Months’ Gaol for Sedition’, above n 39. Laurence Maher, the leading authority on the enforcement of Australian sedition legislation, appears to have been unaware of the Leuthold and McVilly prosecutions: see, eg, Laurence Maher, ‘The Use and Abuse of Sedition’ [1992] SydLawRw 21; (1992) 14 Sydney Law Review 287; Laurence Maher, ‘Dissent, Disloyalty and Disaffection’ [1994] AdelLawRw 1; (1994) 16 Adelaide Law Review 1.

[41] [1949] HCA 45; (1949) 79 CLR 101.

[42] [1949] HCA 46; (1949) 79 CLR 121.

[43] Maher, ‘The Use and Abuse of Sedition’, above n 40, 300. The case against Sharkey was, if anything, weaker, but the success of the Burns prosecution provided grounds for suspecting that it too might succeed.

[44] There were three Queensland sedition trials in the 1930s. Phillip Bossone was tried twice — he was eventually convicted after the jury in the first trial had been unable to reach a verdict: ‘Communist Charged’, Sydney Morning Herald (Sydney), 23 July 1930, 17; CPA, ‘Alleged Sedition’, Workers’ Weekly (Sydney), 3 October 1930, 2. Fred Paterson was acquitted: Ross Fitzgerald, The People’s Champion, Fred Paterson: Australia’s Only Communist Party Member of Parliament (1997) 49–52. In 1934, a third defendant was acquitted when the judge ruled that there was no case to answer.

[45] In advising against prosecution of the Barrier Daily Truth for sedition, Knowles warned that even if the relevant words were seditious, a jury would be unlikely to convict: Knowles to Brennan, 26 August 1935 (National Archives of Australia) A432 1935/1215.

[46] A distinction was drawn between publicity censorship and communication censorship. Publicity Censorship was a branch of the Department of Information and headed by the Chief Publicity Censor. Communications Censorship was responsible for censorship of postal and telegraphic communications. It was the responsibility of the Department of Defence, and later the Department of the Army, and was headed by a Controller of Postal and Telegraph Censorship: see generally Hasluck, above n 7, 179–82.

[47] Nine publications were declared: Tribune, Soviets Today, Communist Review, Wharfie, World Peace, Militant, Workers’ Star, The Guardian and the North Queensland Guardian: Commonwealth of Australia Gazette, No 94, 24 May 1940, 1149. Militant was a Trotskyist publication.

[48] Statutory Rules 1940, No 187 (Cth) reg 1.

[49] State legislation applied generally, and was not limited to publications relating to the war.

[50] Lillian Davis was prosecuted under the Printing Act 1899 (NSW): Galleghan to Director, Commonwealth Investigation Branch, 6 August 1940 (National Archives of Australia) A472 W1452.

[51] R v Banks [1932] NSWStRp 40; (1932) 32 SR (NSW) 516.

[52] Regulation 3.

[53] Regulation 7.

[54] Statutory Rules 1940, No 152 (Cth) reg 3.

[55] Subversive Associations Regulations reg 2.

[56] Commonwealth of Australia Gazette, No 110, 15 June 1940, 1295.

[57] Ibid. The proscribed Fascisti were Luigi Platania (Sydney); Gino Lisa (Melbourne); Guiseppe [sic] Degol (Brisbane); Armando Bergossi (Adelaide); Paolo Solaroli (Cairns); Nicola Nisco (Innisfail); and the Fascio at Edie Creek, New Guinea.

[58] Commonwealth of Australia Gazette, No 114, 21 June 1940, 1333 (Forward Press Pty Ltd, Modern Publishers Pty Ltd, Printers Investment Co Pty Ltd); Commonwealth of Australia Gazette, No 117, 24 June 1940, 1341 (Communist League); Commonwealth of Australia Gazette, No 127, 6 July 1940, 1443 (Revolutionary Workers’ League); Commonwealth of Australia Gazette, No 154, 8 August 1940, 1725 (Australian Youth Council); Commonwealth of Australia Gazette, No 34, 24 February 1941, 387 (League of Young Democrats).

[59] Commonwealth of Australia Gazette, No 8, 17 January 1941, 123 (Jehovah’s Witnesses, Watch Tower Bible and Tract Society, International Bible Students’ Association, Adelaide Company of Jehovah’s Witnesses and Consolation Publishing Co).

[60] Davidson, above n 10, 87; Macintyre, above n 10, 257–8.

[61] McKenzie, above n 10, 85.

[62] Susanna Short, Laurie Short: A Political Life (1992) 32–3. Short does, however, note that the Revolutionary Workers’ League was later revived, following a split in the Communist League: at 33.

[63] Crimes Act s 30A(1).

[64] For a discussion of these cases and the ambit of the unlawful associations provisions, see Roger Douglas, ‘Keeping the Revolution at Bay: The Unlawful Associations Provisions of the Commonwealth Crimes Act’ [2001] AdelLawRw 4; (2001) 22 Adelaide Law Review 259.

[65] ‘Supressing Communism: Declaring Organisations Unlawful’, The Argus (Melbourne), 15 September 1932, 12 (answering a question from Lane MP). Given his doubts, he had explored possible amendments to the Constitution which might confer such a power on the Commonwealth. Devising such formulae had not proved easy: see Garran to Latham, 9 February 1934 (National Archives of Australia): A467 28/SF10/15.

[66] While the Subversive Associations Regulations were eventually held to be unconstitutional, the reasons for this finding did not preclude proscription by government order so long as property rights were respected and offences were defined in such a way as to ensure that people could be convicted only if their behaviour bore some link to the war effort.

[67] (National Archives of Australia) A663/1 O174/1/91.

[68] Report of Conference, 23 January 1940 (National Archives of Australia) MP729/6/0 29/401/121 (emphasis added).

[69] Colonel Bertrand Combes to Secretary, Department of the Army, 3 February 1940 (National Archives of Australia) MP729/6/0 29/401/128.

[70] Martin, above n 14, 296–7.

[71] Stammers, above n 1, 108–12.

[72] Defence of Canada Regulations, CRC 1940, reg 39C. In addition, maximum penalties for offences against the regulations were heavier (12 months on summary trial as against six in Australia). In some respects, however, the Canadian regulations were less repressive. Importantly, they expressly provided that it was a defence that offending words or publications involved criticism in good faith of government polices: reg 39B. A precedent for this defence is to be found in the law on sedition offences. Offences based on possession of literature prejudicial to the war applied only where a quantity of literature was involved: reg 39A; see also R v Money (1940) 75 CCC 402.

[73] Public Safety Emergency Regulations 1940 (NZ) reg 2A. Because the regulations provided for sentences in excess of three months, under New Zealand law defendants had the right to opt for trial by jury: see R v Ostler [1941] NZLR 318 for a discussion of some of the procedural issues arising from the exercise of this option. Defendants frequently availed themselves of this right, but rarely with success.

[74] Taylor, above n 23, 223, 237.

[75] Originally the regulations provided that a court could make an order banning an organisation subsequent to the conviction under the regulations of a person who was a member of the organisation. An Ontario court made an order banning the Communist Party of Canada. Later, the party and its associated organisations were banned by regulation. Subsequent bans were by Order-in-Council pursuant to powers conferred by the regulations. For details, see William Kaplan, State and Salvation: The Jehovah’s Witnesses and Their Fight for Civil Rights (1989) 42–3, 47, 49–50.

[76] In Canada, for instance, the Liberal government’s willingness to ban the Communist Party of Canada was influenced by the strong support for the ban from within the Liberal Party’s Quebec wing. This, in turn, reflected the influence of the strongly anti-communist Catholic hierarchy on Quebec Liberals: see Penner, above n 10, 28, 171, 184–91.

[77] See, eg, Brown, above n 10, 113; W Campbell, History of the Australian Labour Movement: A Marxist Interpretation (1945) 156; Peter Cook, Red Barrister: A Biography of Ted Laurie (1994) 54; John Sendy, Comrades Come Rally! Recollections of an Australian Communist (1978) 9. Consistency may reflect no more than the reliance of later writers on earlier sources. Ted Hill — not one to underestimate the degree to which communists were persecuted — comments that ‘a few of [the CPA’s] members were gaoled’: Hill, above n 10, 105.

[78] Macintyre, above n 10, 401 (who refers to 50 convictions). He rightly states that the Australian Council for Civil Liberties (‘ACCL’) recorded almost that number (although some of those listed were not necessarily communists, and the reports were generally silent on the affiliations of those whose cases they discussed). He adds that Commonwealth archives contain files for many other ‘raids, arrests and prosecutions’. The archives certainly contain files of some additional prosecutions, but not a great number.

[79] A list is available from the author. This estimate is based on the following overlapping sources:

¼ Indexes to the Sydney Morning Herald and to The Herald and The Argus;

¼ Reports in the wartime publications of the ACCL;

¼ Files in the National Archives of Australia;

¼ Law Reports relating to Supreme Court and High Court appeals against convictions under the regulations.

A comparison between these sources indicates that none of them is complete. The ACCL publications yield the most comprehensive list of defendants, but they leave out a number who appear in reports in the indexed media and in files of the National Archives. Given that each of the sources is incomplete, it is likely that there are at least some people who were charged, but who appear in none. However, such people are unlikely to have been numerous. The communists’ autobiographies I have read include no reference to trials of people who are not mentioned in any of the above sources. That said, a history of the CPA in Western Australia mentions two people who do not appear in them: Justina Williams, The First Furrow (1976) 169–70. One of them, who is also mentioned in a report in the Western Australian, expressed support for Hitler. The other was a communist, whose case is mentioned, but not documented. The National Archives contain no record of his trial, but he appeared on the Western Australian Commandant’s wish list of potential internees. It is unlikely that the arrest of an ALP member would have gone unnoticed and uncriticised by the ALP. The fact that the Sydney Morning Herald and The Argus could carry an account of the trial of two politically naive communist sympathisers in Geraldton, Western Australia, suggests that trials could be noticed and newsworthy, notwithstanding their remote venues: ‘Prison for Man and Wife. Subversion Charge. “Communistic Views”’, Sydney Morning Herald (Sydney), 17 February 1941, 11; ‘Man and Wife Imprisoned: Security Act Breach’, The Argus (Melbourne), 17 February 1941, 5.

[80] Knowles, Secretary, Attorney-General’s Department to Director, Investigation Branch, 11 August 1941 (National Archives of Australia) A467 92/SF42/10.

[81] Whitlam, Crown Solicitor to Secretary, Attorney-General’s Department, 23 July 1940 (National Archives of Australia) A472 W1285.

[82] Watson, Deputy Crown Solicitor to Crown Solicitor, 23 July 1940 (National Archives of Australia) A472 W1452.

[83] Whitlam, Crown Solicitor to Secretary, Attorney-General’s Department, 26 July 1940 (National Archives of Australia) A472 W1452.

[84] Whitlam, Crown Solicitor to Secretary, Attorney-General’s Department, 1941 (National Archives of Australia) A6119/84 1708.

[85] Whitlam, Crown Solicitor to Secretary, Attorney-General’s Department, 24 October 1940 (National Archives of Australia) A467/1 89/pt 2/SF42/123. He recommended prosecution under regs 17A and 42.

[86] Clausen, Deputy Crown Solicitor to Whitlam, Crown Solicitor, 21 May 1941 (National Archives of Australia) A467/1 92/SF42/7.

[87] Ibid; Whitlam, Crown Solicitor to Knowles, Solicitor-General, 22 May 1941 (National Archives of Australia) A467/1 92/SF42/7.

[88] Whitlam, Crown Solicitor to Knowles, Solicitor-General, 13 May 1941 (National Archives of Australia) A467/1 89/pt 2/SF42/107. In this case, Clausen had concluded that the contents of the paper would have grounded a prosecution under reg 7: Clausen to HQ Southern Command, 23 May 1941 (National Archives of Australia) A467/1 89/pt 2/SF42/7.

[89] Whitlam, Crown Solicitor to Knowles, Secretary, Attorney-General’s Department, 7 August 1940 (National Archives of Australia) A472 W1452.

[90] Whitlam, Crown Solicitor to Knowles, Secretary, Attorney-General’s Department, 24 October 1940 (National Archives of Australia) A467 89/pt 2/SF42/123. He did, however, consider that there was evidence to justify prosecutions under regs 17A and 42. The problem did not arise to the same extent in relation to the Subversive Associations Regulations regs 8 and 9, since the government could aver that the activity was for the purposes of an unlawful association.

[91] Watson, Deputy Crown Solicitor to Whitlam, Crown Solicitor, 31 March 1941 (National Archive of Australia) A467 89/pt 2/SF42/111.

[92] Advice given by the Attorney-General’s Department expressly referred to the courts’ likely reaction, even to the point of recommending against prosecutions in cases where the law seemed on the Commonwealth’s side, but the advisers believed that courts would nonetheless not agree. See, eg, discussions of the prosecution of Harkin: (National Archives of Australia) A1608/1 F39/2/3 pt 1; W Lindner: (National Archives of Australia) A467/1 92/SF42/7; and E R Pearce: (National Archives of Australia) A467/1 89/pt 2/SF42/107.

[93] It is not possible to give an exact figure. One reason is that the term ‘communist’ is ambiguous. Among other things, it could include people who were members of the CPA (at least prior to its dissolution) and people who, while not members of the CPA, followed its policies in the sense that, whenever the party changed its policies, they would too. It could also include those who defined themselves as ‘communists’ (but this would include Trotskyists). A definition based on the degree to which a person was committed to communist doctrines would be defensible, but problematic, since many who saw themselves as ‘communists’, and as followers of Marx and Lenin, had little idea of the finer points of Marxism and Leninism. Indeed, self-professed Marxist-Leninists can disagree vehemently as to what Marxism-Leninism entails. The problems of defining ‘communist’ and ‘communism’ have bedevilled legislative attempts to attack communism per se: see, eg, the problems created by the Subversive Associations Regulations (which are discussed below). Whatever definition one adopts, classification is sometimes complicated by paucity of evidence. For the purposes of this article, I favour a definition which defines as ‘communist’ those who were either members of the CPA or were prepared to treat CPA policy as authoritative. My estimate, based on cases where I have been able to find some evidence of defendants’ politics, is that more than 80 per cent of ‘leftist’ defendants were ‘communist’ under this definition.

[94] The Trotskyists included John Wishart and A B Thistlethwayte: Lieutenant General, General Officer Commanding, Eastern Command to Secretary, Military Board, 12 August 1941 (National Archives of Australia) A8911/1 191. The ALP members included James Starling: ACCL, The War and Civil Rights (1940) 15–17. Another member was Marie Nielsen: Fitzpatrick Papers (National Library of Australia, Canberra) MS 4965, 14338. Bernard Hearsch (against whom charges were subsequently dropped) was a member of the ALP but police reports also described him as a communist: Fitzpatrick Papers (National Library of Australia, Canberra) MS 4965, 14337. The Industrial Workers of the World veteran was Violet Wilkins: ‘Woman Gaoled. “Endeavour to Cause Disaffection”’, Western Australian (Perth), 2 April 1941, 5.

[95] William Allen, Albert Hooke and John McKellar: Fitzpatrick Papers (National Library of Australia, Canberra) MS 4965, 8871.

[96] John Martin: ‘Man Alleged to Have Said He Hoped Hitler Won’, The Herald (Melbourne), 27 September 1940, 3; Arthur Jeffrey: ‘Man Sentenced at Northam. Chance Conversation in a Car’, Western Australian (Perth), 15 June 1940, 5; Joseph Moore: ‘Charge under Section 42A: Subversive Words’, The Argus (Melbourne), 11 March 1941, 7; and an anonymous defendant: ‘Sabotage Plans: Year’s Gaol for Propagandist’, Sydney Morning Herald (Sydney), 8 November 1941, 15.

[97] This, and the analysis which follows, is based on my sample of cases of people prosecuted under the regulations.

[98] Of the 11 cases in which prosecutions were approved, but which did not proceed to trial, there were charges under reg 17A in seven; charges under reg 17 in three; charges under reg 42 in two; and charges under reg 41 in one. In most of these cases, I have no details of the defendant’s politics.

[99] General Regulations regs 42 (in six cases) and 17 (in one case); Subversive Associations Regulations regs 7 (in three cases), 8 (in three cases) and 9 (in one case). Regulation 17 was not, on its face, a political regulation. It related to the collection of military information.

[100] It is also possible that an anonymous fascist who was convicted in November 1941 (see above n 96) had committed his offence after June 1941. The newspaper report does not give details of the date of the offence.

[101] Some passages from the speech are set out in Watson to Crown Solicitor, 15 October 1940 (National Archives of Australia) A472/6 W1145. Others are set out in ACCL, The War and Civil Rights, above n 94, 15.

[102] ACCL, The War and Civil Rights, above n 94, 12.

[103] General Regulations reg 17A prohibited the possession of publications lacking details of the printer and publisher. In relation to the charging of Phyllis Johnson, see generally ACCL, The War and Civil Rights, above n 94, 12–13.

[104] General Regulations reg 42 prohibited attempts to subvert public opinion. For details of the cases, see ACCL, The War and Civil Rights, above n 94, 13–14.

[105] Rich J provides extracts from the speech and reports some of the interjections in his judgment: Francis v Rowan [1941] HCA 6; (1941) 64 CLR 196, 200–1. According to the police prosecutor, Garland’s speech was ‘somewhat similar to Rowan’s speech, but was very much stronger’: ACCL, The War and Civil Rights, above n 94, 14.

[106] General Regulations reg 41 prohibited attempts to cause disaffection.

[107] ‘Woman Gaoled’, above n 94.

[108] Subversive Associations Regulations reg 7 prohibited possession of publications advocating an unlawful doctrine.

[109] ‘Prison for Man and Wife’, above n 79; ‘Man and Wife Imprisoned’, above n 79 (although this report does not mention Radio Moscow or the second tradesman).

[110] Details of the case are to be found in (National Archives of Australia) A467/1 92/SF42/6.

[111] ‘Man Sentenced at Northam’, above n 96.

[112] ‘Man Alleged to Have Said He Hoped Hitler Won’, above n 96.

[113] ‘Charge under Section 42A’, above n 96. Evidence was given that, despite his statement, his loyalty was unquestionable.

[114] They were William Allen, Albert Hooke and John McKellar. The petition stated that ‘the war was for material wealth and could not be masked in self-righteous eloquence’: ‘Peace Petition Charge: Imprisonment Order’, Sydney Morning Herald (Sydney), 24 April 1942, 7.

[115] The case, which resulted in an acquittal, is referred to in (National Archives of Australia) MP508/1 4/702/141.

[116] The pamphlet was There is a Path to Peace: ‘Lumper Has Man Arrested on Literature Charge’, The Herald (Melbourne), 20 September 1940, 3.

[117] ‘Gaoled for Having Communist Papers’, The Herald (Melbourne), 13 March 1941, 13; ‘Had Communist Papers: Dock Worker Gaoled’, The Argus (Melbourne), 14 March 1941, 5.

[118] ‘National Security Offences. Man Fined £20’, Sydney Morning Herald (Sydney), 4 September 1940, 7. He was also charged with possession of the offending literature.

[119] (National Archives of Australia) A1608/1 F39/2/3 pt 1.

[120] Fitzpatrick Papers (National Library of Australia, Canberra) MS 4965, 14338.

[121] ACCL, ‘National Security Cases’ (1941) 5 Civil Liberty 13, 20–1. The full text of his posters is set out at 21.

[122] ‘Breach of War Rules’, Daily Telegraph (Sydney), 13 December 1940, 9.

[123] ‘Charge Not Proved: Security Breach Alleged’, Sydney Morning Herald (Sydney), 18 November 1941, 12.

[124] ‘Sabotage Plans’, above n 96.

[125] ACCL, The War and Civil Rights, above n 94, 8.

[126] ‘Charges against Youth. War-Time Prosecutions’, Sydney Morning Herald (Sydney), 27 June 1941, 5.

[127] See (National Archives of Australia) A467/1 89/pt 2/SF42/104.

[128] (National Archives of Australia) A1608/1 16/13/239 pt 1.

[129] (National Archives of Australia) A467/1 89/pt 2/SF42/123.

[130] (National Archives of Australia) A467/1 92/SF42/5.

[131] (National Archives of Australia) A467/1 89/pt 2/SF42/109.

[132] (National Archives of Australia) A467/1 89/pt 2/SF42/107.

[133] (National Archives of Australia) A467/1 92/SF42/14.

[134] (National Archives of Australia) A467/1 89/pt 1/SF42/79 W3252; ‘Man & Woman in WA Court: Subversive Charges’, The Herald (Melbourne), 22 April 1941, 3.

[135] Wishart v Fraser [1941] HCA 8; (1941) 64 CLR 470, 471, 485. He admitted that he possessed the copies with the intention of distributing them, but stressed that this was contingent on approval from the Communist League, which had not been given.

[136] ‘Communist Gaoled’, Western Australian (Perth), 1 June 1940, 14.

[137] The charges were later dropped: (National Archives of Australia) A467/1 92/SF42/12.

[138] ‘3 Months Gaol for WA Communist Secretary’, The Herald (Melbourne), 14 June 1940, 3.

[139] ‘Had Communist Literature: Man’s Three Fines’, Sydney Morning Herald (Sydney), 25 July 1941, 5.

[140] Coleman v Richards [1941] WALawRp 8; (1941) 43 WALR 21.

[141] In Blair’s case the pamphlets were No War on Russia and The War and the Working Class: Fitzpatrick Papers (National Library of Australia, Canberra) MS 4965, 8853. Neels had been found with The War and the Working Class and The Imperialist War and Socialist Revolution: ACCL, ‘National Security Cases’, above n 121, 18.

[142] ACCL, ‘National Security Cases’, above n 121, 19. A prior search at his camp had revealed nothing unlawful.

[143] ‘Had Communist Literature’, above n 139.

[144] Eric Knowles and Leslie Jury were charged under reg 17A for having in their possession single copies of The Spark: ‘Three Months’ Imprisonment’, The Herald (Melbourne), 7 June 1940, 3; ‘Had Communist Paper’, Sydney Morning Herald (Sydney), 10 June 1940, 5; ‘Doctor Charged under National Security Act’, The Herald (Melbourne), 19 June 1940, 3. However, in opposing bail, the prosecutor alleged that Dr Jury ‘had been going round Fremantle selling pamphlets and agitating for Communism’: ‘Doctor Charged under National Security Act’, The Herald (Melbourne), 19 June 1940, 3. Stickland was prosecuted under reg 7 for possessing a single copy of No War on Soviet Russia: see Stickland v Nevin [1941] WALawRp 6; (1941) 43 WALR 18 for the report of the appeal against his conviction. Doblo was charged under reg 7 on the basis of his possession of a circular headed ‘War Developments and the Tasks of the Party’, which presented the standard CPA line on the war: Crown Solicitor to Secretary, Attorney-General’s Department, 1941, NAA: A6119/84 1708. Albert Cant was found in possession of a single copy of the Workers’ Star and was charged under reg 7: ‘Union Leader Gaoled: Had Banned Paper’, The Argus (Melbourne), 8 January 1941, 5. Stanley Read was charged under reg 7 for having in his possession a circular, ‘Study Class Material’: ACCL, ‘National Security Cases’, above n 121, 21. Perry was charged with having in her possession, on 2 April 1941, a circular advocating unlawful doctrines. The evidence was that police had searched her premises and had found in her car a document headed ‘Warning’. This advised people ‘to carry on their work of agitation carefully and subtly’. Not all communists heeded that advice. Perry’s house was raided after police who had been following John Simpson saw him visit the house. See ‘Perry v Basley’ (1941) 15 Australian Law Journal 97; ‘Man & Woman in WA Court’, above n 134.

[145] See (National Archives of Australia) A467 89/pt 1/SF42/78. The six defendants were D Donovan, H Druitt, T Fogarty, T Gordon, H Gould, R McConnell. Donovan and Fogarty were also charged under reg 17A.

[146] In the 1940 federal elections, communist candidates standing as independents sometimes performed well. Gibson won nine per cent; Paterson polled 18 per cent. Several candidates for the State Labor Party in New South Wales also polled well, Gollan winning 25 per cent and Lockwood 15 per cent: Macintyre, above n 10, 406. In a typical jury, therefore, it was possible that there would be at least one juror inclined to hold out for the acquittal of a communist defendant.

[147] ‘Man Sentenced at Northam’, above n 96.

[148] ‘Breach of War Rules’, Daily Telegraph (Sydney), 13 December 1940, 9.

[149] Watson, Deputy Crown Solicitor to Crown Solicitor, 15 October 1940 (National Archives of Australia) A472/6 W1145.

[150] Watson, Deputy Crown Solicitor to Crown Solicitor, 22 October 1940 (National Archives of Australia) A472/6 W1456.

[151] ‘Woman Gaoled’, above n 94.

[152] The lack of such challenges is sometimes puzzling. For instance, Wishart reportedly said to the police: ‘I am prepared to accept the consequences of any action the authorities might take against me. I deserve punishment. I know the police are in possession of ample evidence of my activities with the Communist League of Australia and the Revolutionary Workers’ League. You know I have been down in the domain on Sundays speaking from the platform of the Communist League of Australia’: see ‘Charge against Solicitor’, Sydney Morning Herald (Sydney), 17 September 1940, 3. This reads like an unimaginatively drafted verbal or a statement by an old Bolshevik at the end of a show trial. It is not what one would expect of a Trotskyist — especially a Trotskyist with legal training. Yet the evidence went unchallenged.

[153] Among those who did were Jury, the Owens and Wallbridge. Dean changed his plea to guilty after hearing the prosecution evidence.

[154] Deputy Crown Solicitor to Crown Solicitor, 21 October 1940 (National Archives of Australia) A472/6 W1456.

[155] See Wishart v Fraser [1941] HCA 8; (1941) 64 CLR 470.

[156] Richards to Inspector Read, 22 October 1941 (National Archives of Australia) A467 89/pt 1/SF42/79; Deputy Crown Solicitor to Crown Solicitor, 21 July 1941 (National Archives of Australia) A467 89/pt 1/SF42/78.

[157] See Wishart v Fraser [1941] HCA 8; (1941) 64 CLR 470.

[158] (National Archives of Australia) A467/1 92/SF42/6; ‘Man Alleged to Have Said He Hoped Hitler Won’, above n 96.

[159] ACCL, The War and Civil Rights, above n 94, 13–17. See also Francis v Rowan [1941] HCA 6; (1941) 64 CLR 196.

[160] ‘National Security Cases’, Kalgoorlie Miner (Kalgoorlie), 30 June 1941, 1.

[161] (National Archives of Australia) A467/1 89/pt 2/SF42/109.

[162] (National Archives of Australia) A638/8 326.

[163] McKenzie, above n 10, 103.

[164] Watson, Deputy Crown Solicitor to Crown Solicitor, 21 July 1941 (National Archives of Australia) A467 89/pt 1/SF42/78.

[165] Stickland v Nevin [1941] WALawRp 6; (1941) 43 WALR 18, 20.

[166] Coleman v Richards [1941] WALawRp 8; (1941) 43 WALR 21.

[167] Deputy Crown Solicitor to Crown Solicitor, 21 October 1940 (National Archives of Australia) A472/6 W1456.

[168] Doblo, Johnson, Ogston, Coleman, Perry.

[169] E R Pearce, A L Blair, Bernard Hearsch, and Ellen Nielsen.

[170] In Pearce’s case, the reason for the prosecution’s failure to call evidence was that it wanted to charge him under a different regulation. He had originally been charged under reg 7 of the Subversive Associations Regulations. Whitlam, the Crown Solicitor, considered that he should have been charged under reg 42A of the General Regulations. At his appearance at the Malvern Court of Petty Sessions, the prosecution sought an adjournment so that they could substitute charges. The defence objected and the application was denied. The prosecution chose to call no evidence and the reg 7 charge was dismissed. Whitlam considered that the acquittal of the Subversive Associations Regulations charge could not, at law, justify a successful plea of autrefois acquit to a new charge under reg 42A. He feared, however, that a magistrate might nonetheless accept an autrefois acquit plea or suggest that the prosecution should withdraw a reg 42A charge. He therefore advised against a further prosecution: see (National Archives of Australia) A467/1 89/pt 2/SF42/107. In the other three cases, prosecutions had been approved, but the cases had not come to trial by the time Herbert Evatt became the Commonwealth Attorney-General.

[171] One of these was Downie who was acquitted by a Perth court of a charge under reg 42 in relation to a speech given in May 1940: see ACCL, The War and Civil Rights, above n 94, 11; Fitzpatrick Papers (National Library of Australia, Canberra) MS 4965, 8842. The former source refers to an unnamed defendant prosecuted in July. The latter source states a name but refers to a decision in August. The two accounts appear to relate to the same case.

[172] ACCL, The War and Civil Rights, above n 94, 15–17. This latter finding is puzzling. Starling had said that the war was for the purpose of the enslavement of humanity. Given that he was an anti-fascist, one would assume that this was intended as a condemnation, rather than a commendation, of the war. If so, one must assume that Starling was hoping by his speech to persuade others to accept that view and thereby reduce the government’s capacity in a manner prejudicial to the efficient conduct of the war: plainly, if a war is being conducted against the interests of humanity, it is best that it not be prosecuted efficiently.

[173] ‘Second Case Fails’, The Herald (Melbourne), 23 April 1942, 3; ‘Peace Advocate Gaoled for Breach of Security Laws’, The Sun (Melbourne), 24 April 1942, 8. Charges against McKellar were adjourned. Given that, according to The Herald report, McKellar’s defence was the same as Hooke’s, it is likely that either the charges against him were dropped or he was acquitted.

[174] See Stickland v Nevin [1941] WALawRp 6; (1941) 43 WALR 18, 20.

[175] Ibid.

[176] Ibid.

[177] See Coleman v Richards [1941] WALawRp 8; (1941) 43 WALR 21, 25.

[178] (National Archives of Australia) A6119 1174.

[179] Birch v Allen [1942] HCA 17; (1942) 65 CLR 621.

[180] Stickland v Nevin [1941] WALawRp 6; (1941) 43 WALR 18, 20–1. Northmore CJ simply reported the disagreement. He did not indicate why one of the two judges would have allowed the appeal. As a result it is unclear whether the judge who would have allowed the appeal would have done so on the ground that the document was acquired before the making of the regulation, on the ground that possession for private purposes was a defence, or on the ground that possession of documents acquired before the making of the regulation would be a defence if the possession was for private purposes.

[181] One basis for the ‘lawful excuse’ argument could have been that only by reading down the regulation could it be treated as a proper exercise of the regulation-making power conferred by the National Security Act. Alternatively, it could have been argued that the very fact that the regulation could achieve this result indicated that, in making it, the Commonwealth had exceeded its powers.

[182] Coleman v Richards [1941] WALawRp 8; (1941) 43 WALR 21.

[183] Ibid 24.

[184] Ibid. This suggests that he was the judge who favoured allowing Stickland’s appeal.

[185] Wishart v Fraser [1941] HCA 8; (1941) 64 CLR 470, 484–5 (Dixon J), 487–8 (McTiernan J), 489 (Williams J, agreeing with Dixon J).

[186] Ibid 485 (Dixon J), 488 (McTiernan J), 489 (Williams J, agreeing with Dixon J).

[187] ‘Perry v Basley’, above n 144. This is the only report of the case, and it does not completely reproduce their Honours’ judgments. Unlike Wishart, Perry appealed as of right.

[188] See the High Court file on Perry v Basley which is available from the Court and includes the Appeal Book (which contains the order nisi, the magistrate’s notes and a transcription of the document), along with a supplementary ground of appeal and the judges’ reasons (which were delivered orally).

[189] Perry v Basley (Unreported, High Court of Australia, Rich ACJ, Starke and Williams JJ, 4 June 1941) 1.

[190] Ibid 1–2.

[191] Ibid 2; see also ‘Perry v Basley’, above n 144, 98.

[192] Perry v Basley (Unreported, High Court of Australia, Rich ACJ, Starke and Williams JJ, 4 June 1941) 3; see also ‘Perry v Basley’, above n 144, 98.

[193] Perry v Basley (Unreported, High Court of Australia, Rich ACJ, Starke and Williams JJ, 4 June 1941) 4; see also ‘Perry v Basley’, above n 144, 98.

[194] Perry v Basley (Unreported, High Court of Australia, Rich ACJ, Starke and Williams JJ, 4 June 1941) 2; see also ‘Perry v Basley’, above n 144, 98.

[195] Francis v Rowan [1941] HCA 6; (1941) 64 CLR 196, 202 (Starke J).

[196] Ibid 204.

[197] Ibid 202. Starke J’s uncomplimentary assessment was not shared by the writer of a wartime intelligence report on communism in South Australia: 4th Military District, 18 July 1940 (National Archives of Australia) A6335/6 11. See also Sendy’s extremely positive assessment of Rowan: Sendy, above n 77, 7.

[198] Francis v Rowan [1941] HCA 6; (1941) 64 CLR 196, 205.

[199] Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth [1943] HCA 12; (1943) 67 CLR 116 (‘Jehovah’s Witnesses Case’).

[200] Section 116: ‘The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth’.

[201] Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth [1943] HCA 12; (1943) 67 CLR 116, 165.

[202] Ibid.

[203] Williams J did, however, make it clear that in his opinion regs 7 and 8 were invalid: ibid 166–7. For some reason he did not address the validity of reg 9, although its fate would seem to be inseparable from that of regs 7 and 8.

[204] Ibid 156.

[205] Ibid 144.

[206] This restrictive reading would have limited the scope of the ‘unlawful doctrine’ offences. In practice, however, defendants seem to have been charged with ‘unlawful doctrine’ offences only if the doctrines were prejudicial to the defence of Australia and to the efficient prosecution of the war. See the reports of the Perry and Simpson cases: ‘Man & Woman in WA Court: Subversive Charges’, above n 134. In Cunningham’s case, The Herald reported that the pamphlet had read: ‘There is a path to peace, despite Hitler, Churchill and Menzies. That way is proletarian revolution’: ‘Lumper Has Man Arrested on Literature Charge’, above n 116. The six ‘tennis club’ defendants, however, might have had a defence. The basis for the charges in that case appears to have been the advocacy of communist doctrines rather than doctrines which threatened the defence of the Commonwealth.

[207] Perry v Basley (Unreported, High Court of Australia, Rich ACJ, Starke and Williams JJ, 4 June 1941); ‘Perry v Basley’, above n 144.

[208] Watson to Crown Solicitor, 21 October 1940 (National Archives of Australia) A472/6 W1456.

[209] A measure of the extent to which more severe sentences are associated with more serious offences is provided by Kendall’s tau-c. The values of this statistic range from –1 to +1. A tau-c of or close to –1 occurs only when increased values of one variable are almost invariably associated with decreased values of the other variable. A relationship of or close to +1 indicates that increased values in one variable are almost invariably associated with increased values of the other. This would be the case, for example, if non-serious offences invariably attracted lenient sentences, while offences of moderate seriousness attracted moderate sentences and serious offence invariably attracted severe sentences. A tau-c of 0 would mean that there was no tendency for offence seriousness to be related one way or the other to sentence severity. On tau statistics, see further William Hays, Statistics for Psychologists (1963) 641–3, 647–51. In the eastern states, the tau-c statistic is 0.36; in Western Australia it is 0.22. The likelihood that there is, in fact, no relationship between the two variables is 0.009 in the east and 0.109 in the west. When Western Australia and other cases are examined together, the tau-c statistic is smaller, and statistically non-significant. This was because while Western Australian cases were more likely than cases in other states to be relatively trivial, Western Australian defendants were nonetheless more likely to receive prison sentences, regardless of the severity of their offences.

[210] Gollan, above n 10, 96 is wrong when he states that the usual penalty was six months imprisonment. See also Macintyre, above n 10, 402 whose statement that possession or distribution of communist literature brought sentences of three or six months is misleading if (which is unclear) it means that these were the usual sentences for General Regulations reg 17A and Subversive Associations Regulations reg 7 offences. The maximum sentence was imposed on only 11 of the 47 defendants who were convicted. In addition, one defendant received an aggregate sentence of seven months, and another an aggregate sentence of 12 months. Technically, aggregate sentences of more than six months could have been imposed in the case of defendants convicted of multiple offences, but these were almost invariably treated as if they arose out of a single factual situation. The only defendants to receive concurrent sentences were Dean (two sentences of three months, with an aggregate of six months), Legeny (one sentence of six months, and another of one month cumulative), Coleman (two sentences of two months, with an aggregate of four months) and a rather half-hearted Nazi, whose offences spanned a period of time and who received three sentences of six months with an aggregate of twelve months. However, defendants convicted on multiple counts were more likely to receive longer sentences: eight out of the 13 defendants who received sentences of six months or more were convicted on multiple counts. Of those who received sentences of three months or less, only three out of 15 were convicted on multiple counts. I have no details of the length of one sentence.

[211] See Hartrey to Fitzpatrick, 2 July 1941, in Fitzpatrick Papers (National Library of Australia, Canberra) MS 4965, 7080ff; ‘National Security Cases’, above n 160.

[212] Coleman v Richards [1941] WALawRp 8; (1941) 43 WALR 21, 25–6.

[213] [1941] HCA 6; (1941) 64 CLR 196.

[214] A similar decision was reached by the Ontario Court of Appeal: R v Stewart [1940] 1 DLR 689.

[215] Perry v Basley (Unreported, High Court of Australia, Rich ACJ, Starke and Williams JJ, 4 June 1941); ‘Perry v Basley’, above n 144.

[216] See the judgments of Rich ACJ and Williams J in Perry v Basley (Unreported, High Court of Australia, Rich ACJ, Starke and Williams JJ, 4 June 1941); see also ‘Perry v Basley’, above n 144.

[217] Macintyre, above n 10, 399, 402, 404–5.

[218] In answer to a question from Hubert Anthony complaining about Jehovah’s Witnesses going from door to door, and asking whether the ban was going to be lifted, Herbert Evatt, the Commonwealth Attorney-General, stated that it was not proposed that the ban be lifted, that the Security Director was taking steps to stop canvassing, and (in answer to an interjection from Anthony that they had nonetheless come to his door) that ‘where proof is forthcoming the Security Director is taking strong action, and some members have been placed under severe restrictions’: Commonwealth, Parliamentary Debates (House of Representatives), 28 January 1943, 110–11. That, apart from a question about Jehovah’s Witnesses working in munitions factories, was the only reference to Jehovah’s Witnesses in the Parliamentary Debates. The nature of the ‘strong action’ and the ‘severe restrictions’ is not clear.

[219] Apart from the 1940 prosecution of McVilly, there are no references to reported prosecutions of Jehovah’s Witnesses for offences under the relevant regulations in the indexes to either the The Argus or the Sydney Morning Herald. Nor, as far as I can determine, are there any references to such prosecutions in the National Archives of Australia. There were, not surprisingly, several prosecutions for failing to obey call-up notices.

[220] One source of advice to members of the CPA was a roneoed pamphlet, Defence of the Party and the Fights against Provocation, a copy of which was is to be found in (National Archives of Australia) A467/1 89/pt 2/SF42/123. It was found among the papers of George Scott, who, in his subsequent conversations with the police, demonstrated that he had not taken much notice of its contents. There are numerous accounts of the CPA’s response to the ban: Davidson, above n 10, 80–1; Gray, above n 10, 51–2; Hill, above n 10, 106–7; Macintyre, above n 10, 397–400; McKenzie, above n 10, 99–100; Joyce Stevens, Taking the Revolution Home: Work among Women in the Communist Party of Australia: 1920–1945 (1976) 156–7, 175–6. Many accounts develop the time-honoured theme of intellectual communists faced by dimwitted policemen (although Gray and Macintyre are guardedly sceptical), and thereby possibly miss the point that it scarcely mattered whether police confiscated the works of Dostoyevsky rather than those of Stalin, if the real purpose of raids was to punish communists, to show them that police knew their politics and to deter them from visible activism.

[221] McKenzie, above n 10, 100 states, in relation to Western Australia, that ‘[t]hough many house raids were carried out at this time, there were no arrests.’ This is not quite true. Dr Jury was arrested after a Western Australian raid: ‘Doctor Gaoled’, Western Australian (Perth), 22 June 1940, 15. Another person to be arrested after one of the early raids was Theodore Jones: ‘Breach of War Rules’, above n 148.

[222] The authorities did, however, devote some effort to supervising communists. Shorthand notes were taken of speeches by prominent communists (although these rarely resulted in prosecutions). Several inept attempts were made to infiltrate the CPA (and we probably do not know about the successful attempts). See generally Ferrier, above n 10, 166–7, 169–72, 176–7, 184; Macintyre, above n 10, 402, 404–5; Stevens, above n 220, 157.

[223] This view is accepted by several communist and lapsed communist writers: Eric Aarons, What’s Left? Memoirs of an Australian Communist (1993) 43; Hill, above n 10, 108.

[224] Evidence to this effect is provided by the high success rate of prosecutions and by the low success rate in cases where defendants appealed against conviction.

[225] See above Part IV for examples of the cases typically prosecuted under reg 42.

[226] Those who stood as ‘independent’ or ‘State Labor’ candidates included Ralph Gibson, Bill Gollan, Jack Hughes, Rupert Lockwood and Fred Paterson: Macintyre, above n 10, 406.

[227] Ibid 404–5; Stan Moran, Reminiscences of a Rebel (1999) claims that, while speaking, he put forward CPA policy: at 29.

[228] For an account of the context of the prosecution, see Fitzgerald, above n 44, 124–32.

[229] Stammers, above n 1, 90.

[230] Canada’s Party of Socialism, History of the Communist Party of Canada 1921–76 (1982) 137.

[231] Penner, above n 10, 169–70, 184. An official history of the party states that about 250 communists were interned: Canada’s Party of Socialism, above n 230, 137.

[232] On the ban on Jehovah’s Witnesses, see generally M James Penton, Jehovah’s Witnesses in Canada (1976) 129–55; Kaplan, State and Salvation, above n 75, chs 2–4; Gary Botting, Fundamental Freedoms and Jehovah’s Witnesses (1993) 15–29. Botting cites John Diefenbaker as stating that about 500 Witnesses had been prosecuted for their membership of an illegal organisation: at 28.

[233] R v Demorest (1941) 75 CCC 360. He was acquitted on appeal.

[234] Kaplan, State and Salvation, above n 75, 281 fn 79.

[235] Penner, above n 10, 168.

[236] Ibid 28. The Canadian government resisted subsequent United States pressure in the early cold war years to ban the Canadian party once more: at 225.

[237] Ibid 193–5.

[238] The Communist Party of New Zealand’s membership in 1939 was less than a tenth of the membership of the CPA: Taylor, above n 23, 211. Indeed, communist peace resolutions were defeated by overwhelming majorities at conferences of the New Zealand Federation of Labour: at 222.

[239] Ibid 213–21.

[240] Ibid 197–203. Numerous other New Zealand pacifists were arrested for traditional public order offences such as obstructing police: at 197–203.

[241] Ibid 233–4, 238.

[242] Ibid 221.

[243] Ibid 213–21. Taylor provides precise figures on the number of prosecutions and their outcome, but details of sentences must be gleaned from the detailed descriptions which she provides of cases reported in the media.

[244] Examples of judgments which emphasised the importance of political liberties include: R v Demorest (1941) 75 CCC 360, 363–5 (Doak DCJ) (where the security justifications for the prosecution appear to have been patently negligible); R v Barrington [1942] NZLR 502, 518 (Smith J); Billens v Long [1944] NZGazLawRp 61; [1944] NZLR 710, 722 (Johnston J), 732 (Northcroft J) (in the context of an alleged censorship offence by a non-dissident paper). For examples of judgments which emphasised the interests of the state and national security, see Ex parte Sullivan (1941) 75 CCC 70, 74–5, 77–8 (Hope J); R v Ravenor (1941) 75 CCC 294, 299 (Judge Ellis); R v Burt [1941] 1 DLR 598, 602–3 (Hogg J); Re Carriere (1942) 79 CCC 329, 333–7 (Surveyer J); Kelman v Browne [1940] NZLR 941, 945–6 (Ostler J); Stevenson v Reid [1941] NZPoliceLawRp 12; [1942] NZLR 1, 2–5 (Callan J); Billens v Long [1944] NZGazLawRp 61; [1944] NZLR 710, 717 (Myers CJ dissenting); Taylor, above n 23, 213–21 identifies examples of a range of attitudes, ranging from attempts to treat offences according to conventional criteria to much harsher attitudes.

[245] See also Whitlam’s analysis (in relation to the Doblo prosecution) of the problems of proving that a doctrine was ‘communist’: Whitlam, Crown Solicitor to Secretary, Attorney-General’s Department, 23 July 1940 (National Archives of Australia) A472 W1452; Clausen’s reference to the problem of proving that a paper called the Guardian was indeed the communist paper of that name and that it advocated ‘communist’ doctrines: Clausen, Deputy Crown Solicitor to Whitlam, Crown Solicitor, 21 May 1941 (National Archives of Australia) A467/1 92/SF42/7.

[246] None of the files I have read contains an explicit reference to possible constitutional issues, but the cautious reading given to the regulations is the kind of reading one would expect of officials sensitive to constitutional considerations.

[247] General Regulations regs 41(1), 42(2).

[248] Galleghan, Acting Inspector, NSW Police to Director, Investigation Branch, 6 August 1940 (National Archives of Australia) A472 W1452. Complaints from the Queensland police are documented by Kay Saunders, ‘“Red Baiting Is an AWU Habit”: Surveillance and Prosecution of Communists in Queensland During World War II’ (1988) 74 Journal of the Royal Australian Historical Society 213, 223.

[249] See, eg, the approaches taken by the magistrates in the cases of Starling and Rowan: ACCL, The War and Civil Rights, above n 94, 13–17.

[250] Hasluck, above n 7, 145–6, 207–8, 215–16, 234–5; Martin, above n 14, 293, 296, 298–9.

[251] Hasluck, above n 7, 494–500.

[252] Ibid; Martin, above n 14, 311–12, 371, 383.

[253] See Hasluck, above n 7, 495–500.

[254] Hasluck makes numerous references to the degree to which the government saw the need to take account of the views of both the ALP and the union movement: ibid 232–4, 290–1, 370–1, 375.

[255] See, eg, Letter from Menzies to Murdoch, 13 June 1940 (National Archives of Australia) SP109/3/1 300/5 pt 2 arguing that union papers should be dealt with under the normal censorship regime, rather than under the regime which applied to communist papers.

[256] Gibson, above n 10, 336; Hill, above n 10, 106.

[257] Hughes to Knowles, 15 June 1940 (National Archives of Australia) A467/1 90/SF42/8; Macintyre, above n 10, 397, 405. Kay Saunders and Helen Taylor, ‘The Impact of Total War upon Policing: The Queensland Experience’ in Mark Finnane (ed), Policing in Australia: Historical Perspectives (1987) 143, 152 refer to a raid on noncommunist trade union leaders by Queensland police, but also point out that Hughes criticised the raid. There was also a raid in 1941 on the homes of the executive of the Portland branch of the ALP: Bevege, above n 5, 118.

[258] Ratliff and Thomas were interned following the expiry of their six month prison sentences. Their internment provoked considerable industrial unrest: see generally Hasluck, above n 7, 609–12. The unrest provoked by their internment was sufficient to persuade Southern Command that it was better to tolerate a degree of subversion than to risk the industrial unrest which interments could provoke: Lieutenant General Smart to Secretary, Military Board, 6 August 1941 (National Archives of Australia) A8911/1 191.

[259] See notes prepared for a meeting between Menzies and a delegation from the Central Committee of Interstate and Overseas Steamship Owners, January 1940: (National Archives of Australia) A663/1 O174/1/91. Inspector Wake of the Attorney General’s Department’s Investigation Branch advised against interning Paterson on the grounds that it might make him a martyr: Jones to Knowles, 29 August 1941 (National Archives of Australia) A467/1 92/SF42/6. In discussions about whether Ratliff and Thomas should be interned, Spender, the Minister for the Army, informed the Advisory War Council of a case where one dissident, Donald Thompson, was suspected of stirring up trouble in the hope that he would be interned and that his case would provoke yet more unrest: Advisory War Council Minute, 4 April 1941 (National Archives of Australia) A5954/69 431/2. Knowles suggested that one reason for not prosecuting the anti-Semitic Eric Butler was that Butler might welcome the publicity a court appearance would bring: Knowles to Director, Information, 5 March 1941 (National Archives of Australia) SP109/3/1 316/03. Some convictions under the regulations provoked vigorous campaigns protesting against the defendant’s treatment: see, eg, Stevens, above n 220, 196. Most, however, appear not to have done so. Violet Wilkins in Western Australia was disappointed that protests against her fine were perfunctory.

[260] Minutes of Conference, 22 January 1940 (National Archives of Australia) A8911/1 52.

[261] (National Archives of Australia) A8911/1 191.

[262] See above Part V(C).

[263] See Muirden, above n 26, 79–92 for details of Richards’ involvement in a conspiracy which led to the prosecution of four deluded Western Australian Japanese sympathisers who were tenuously associated with the Australia First Movement.

[264] Academic analysis on this point varies. Macintyre, above n 10, 393–405 provides a comprehensive account of the CPA’s experiences during the war, noting its successes and also the problems posed by the bans on its activities. Gibson, above n 10, 336 notes that the ban impaired the CPA’s capacity to spread its message. Campbell, above n 77, 155–7 argues that the CPA survived its proscription well. Hill, above n 10, 105–7 argues that the ban seriously weakened the CPA. Brown, above n 10, 107–14 seems to want it both ways, treating the repression as analogous to that unleashed by the Nazi SS on the German Communist Party, while at the same time highlighting its ineffectiveness.

[265] In New Zealand, in response to attacks from hostile members of the public and bans by local authorities, communist meetings largely ceased and the Communist Party of New Zealand relied more on personal contact and printed material to convey its views: Taylor, above n 23, 210–12. In relation to pacifists’ reactions to possible charges, see Taylor, above n 23, 181–208. In relation to the Jehovah’s Witnesses, see Penton, above n 232, 136–49.

[266] In Britain, where the government was rather more tolerant of communist propaganda, such propaganda made so little impact that it was not even regarded as worthy of comment in Home Intelligence reports. Even when the Daily Worker was banned, the Home Secretary (who supported the ban) considered that there was virtually no evidence that communist propaganda was having an appreciable effect on national morale: Ian McLaine, Ministry of Morale: Home Front Morale and the Ministry of Information in World War II (1979) 189–91.

[267] Ibid 119. See also Macintyre, above n 10, 119.

[268] Peter Edwards, A Nation at War: Australian Politics, Society and Diplomacy during the Vietnam War 1965–1975 (1997) 310–12, 362. The precise level of noncompliance was bitterly contested, partly because anti-conscriptionists hoped that a perception that noncompliance was widespread would itself encourage noncompliance which in turn would make the system unworkable.

[269] On these attacks, see Aarons, above 223, 42; Ferrier, above n 10, 167; Gibson, above n 10, 335; Macintyre, above n 10, 389–91.

[270] Macintyre, above n 10, 391.

[271] See, eg, the reactions to Christian pacifists and communists in New Zealand: Taylor, above n 23, 182–92, 209–10. In particular, Taylor notes that most members of the pacifists’ audiences were well-behaved, and even the critics were usually not particularly hostile, although soldiers who disrupted pacifist meetings tended to be drunk. In contrast, reactions to communist meetings were far more violent.

[272] ‘Man Sentenced at Northam’, above n 96.

[273] See the letters contained in (National Archives of Australia) SP195/1/1 4/72/1/5. It is obviously difficult to extrapolate from letter-writers to the community at large, and it should also be noted that the number of letters complaining about leaflets was trivial in comparison with the number generated by the campaigns against the persecution of the CPA in the 1930s. However, the government seems to have taken them seriously. Correspondents received sympathetic letters, explaining that the government shared their concerns, explaining that prosecution was difficult, but reassuring them that the government was prepared to take action.

[274] Bevege, above n 5, 8, 139–40, 150, 229–30 reports cases where such considerations prompted the internment of harmless aliens. She suggests that action against dissidents might even have been prompted by concern that unofficial reprisals against dissidents might have required the diversion of resources which could have been better used against the enemy.

[275] On Menzies’ doubts, see Macintyre, above n 10, 391. Within the British government there was also considerable support for a negotiated settlement: see generally Lukacs, above n 20. But see Rasmussen, above n 10, 112–24. She argues that while some elements in the peace movement still hoped for a negotiated settlement, most had reluctantly accepted both the inevitability of, and the need for, war.

[276] Gollan, above n 10, 91–2; Hasluck, above n 7, 248–9.

[277] Macintyre, above n 10, 391–3; see also Rasmussen, above n 10, 106, 108 on the degree of support outside the peace movement for the Munich agreement. The Munich Agreement, between Britain, France, Germany and Italy was signed on 29 September 1938. Under the agreement, the parties agreed to the ‘orderly’ occupation by Germany of the Sudetenland region of Czechoslovakia and to procedures for resolving some of the issues arising out of that occupation. Germany and Italy undertook to respect the revised Czech borders, an undertaking Germany soon disregarded. The agreement represented capitulation by Britain and France in the face of threatened force, and while initially welcomed, soon came to be condemned as ‘appeasement’ by those appalled by its moral and Realpolitik implications — especially as these became more apparent.

[278] Hasluck, above n 7, 236. One measure of the impact of the German advances is that enlistments for the Australian Imperial Force, which were sluggish during the first four months of 1940, suddenly increased sharply in May: Hasluck, above n 7, 399, 613. See also Bevege, above n 5, 228, who observes, in relation to internment policies, that ‘[w]hen people feel threatened they look for evidence of action by the authorities to remedy the situation and if a military reply cannot be forthcoming some scapegoat has to be satisfactorily sacrificed to provide a substitute.’