McDermott, Peter M --- "Internment During the Great War - A Challenge to the Rule of Law" [2005] UNSWLawJl 27; (2005) 28(2) UNSW Law Journal 330
[*] Associate Professor and Reader in Law, TC Beirne School of Law, the University of Queensland; Senior Member, Administrative Appeals Tribunal; Member, Legal Aid Panel, 7th Brigade, Gallipoli Barracks, Enoggera. The author gratefully acknowledges the assistance provided by Marquette University while he was a member of the Visiting Faculty there. The author also acknowledges the assistance of Professor Kay Saunders AM FASSA FRHS FRSA FRAI, Professor of History, the University of Queensland, with whom he is undertaking an interdisciplinary project on citizenship.
[1] Sir William Deane, Governor-General of the Commonwealth of Australia ‘On the Occasion of the Opening of the Australian Conference on Lutheran Education’ (Address delivered at the opening of the Inaugural Australian Conference on Lutheran Education, Gold Coast, 26 September 1999) <http://www.gg.gov.au/speeches/html/speeches/1999/990926.html> at 14 August 2005.
[2] Australian Communist Party v The Commonwealth of Australia [1951] HCA 5; (1951) 83 CLR 1, 193 per Dixon J cited by William Anstey Wynes, Legislative, Executive and Judi cial Powers in Australia (5th ed, 1976), 59.
[3] R v Governor of Brixton Prison (unreported, 21 December 1915); R v Halliday; Ex parte Zadig [1917] UKHL 1; [1917] AC 260.
[4] R v Lloyd; Ex parte Wallach [1915] ArgusLawRp 72; [1915] VLR 476, 479. The concept of Australian citizenship was introduced by the Australian Citizenship Act 1948 (Cth). In 1983 the Australian Citizenship Act was amended to remove the British subject status for Australians: see Brian Galligan and Winsome Roberts, Australian Citizenship (2004), 35–6.
[5] A V Dicey, Introduction to the Study of the Law of the Constitution, (8th ed, 1915), 183 (For this article I have used the Liberty Classics 1982 reprint of this edition).
[6] Lord Bingham of Cornhill, ‘Dicey Revisited’ [2002] Public Law 39, 40.
[7] Robert G Menzies, The Rule of Law During the War (1917).
[8] Robert G Menzies, The Rule of Law During the War (1917), cover page; Allan Martin, Robert Menzies – A Life (1993), 19.
[9] Menzies served as Prime Minister between 1939–1941 and then again between 1949–1966.
[10] In R v Superintendent of Vine Street Police Station; Ex parte Liebmann [1916] 1 KB 268, 270, Sir FE Smith KC, Solicitor-General, stated that Dicey defines prerogative as ‘the discretionary authority of the Executive’ and he explains that that means everything which the King or his servants can do without the authority of an Act of Parliament. It would seem that he was referring to A V Dicey, Introduction to the Study of the Law of the Constitution, (8th ed, 1915, Liberty Classics 1982 reprint), 281, 421.
[11] Greenlands Ltd v Wilmshurst (1913) 29 TLR 685, 687 (Vaughan Williams LJ).
[12] 4 & 5 Geo 5, c 17.
[13] Ernst Joseph Cohn, ‘Legal Aspects of Internment’ (1941) 4 Modern Law Review 200, 202.
[14] Robert G Menzies, The Rule of Law During the War (1917), 3.
[15] Ibid 23.
[16] Lloyd v Wallach [1915] HCA 60; (1915) 20 CLR 299.
[17] War Precautions Act 1914 (Cth).
[18] R v Lloyd; Ex parte Wallach [1915] ArgusLawRp 72; [1915] VLR 476, 509.
[19] Aliens Restriction Act 1914 (UK) ss 1(1)(d), (i); War Measures Act 1914 (5 Geo 5, c 2) (Canada), ss 6, 11; War Precautions Act (No. 10) 1914 (Cth), s 5.
[20] Sir W Harrison Moore was a Professor of Law at the University of Melbourne (1 892–1925). He was a constitutional adviser to the Government of Victoria (1907–10) and a member of the Committee on Constitutional Amendments (1919). He authored The Constitution of the Commonwealth of Australia (1910) and Act of State in English Law (1906).
[21] Allan Martin has pointed out that the book had the ‘honour of an introduction by William Harrison Moore the Professor of Law, and Menzies’ hero’: Allan Martin, Robert Menzies – A Life above n 7, 20.
[22] Above n 7, 25.
[23] Above n 7.
[24] A V Dicey, Introduction to the Study of the Law of the Constitution, (7th ed, 1908); A V Dicey, Introduction to the Study of the Law of the Constitution, (8th ed, 1915).
[25] W Ivor Jennings, ‘The Report on Minister’s Powers’ (1932) 10 Public Administration 333, 341.
[26] A V Dicey, Introduction to the Study of the Law of the Constitution (8th ed, 1915, Liberty Classics 1982 reprint), xxv.
[27] Ibid 183.
[28] Ibid. Simpson has pointed out that most of these ideas are to be found in Blackstone, but in embryo: Alfred Brian Simpson, Human Rights and the End of Empire (2001), 34.
[29] Robert G Menzies, The Rule of Law During the War, above n 7, 9.
[30] A V Dicey, Introduction to the Study of the Law of the Constitution, (8th ed, 1915, Liberty Classics 1982 reprint), 183–4.
[31] Ibid 189.
[32] Ibid 191.
[33] Robert G Menzies, The Rule of Law During the War, above n 7, 9.
[34] Gottfried Dietze, Two Concepts of the Rule of Law (1973), 4.
[35] W Ivor Jennings, ‘The Report on Minister’s Powers’ (1932) 10 Public Administration 333, 342. See also G de Q Walker, The Rule of Law (1988), 133.
[36] David Dyzenhaus (ed), Recrafting the Rule of Law: The Limits of Legal Order (1999), 11.
[37] Ibid.
[38] A V Dicey, Introduction to the Study of the Law of the Constitution, (8th ed, 1915, Liberty Classics 1982 reprint), 110.
[39] Ibid, lvi.
[40] R v Secretary of State for Transport Ex parte Factortame (1990) UKHL 13; [1991] 1 AC 603.
[41] A V Dicey, Introduction to the Study of the Law of the Constitution, (8th ed, 1915, Liberty Classics 1982 reprint), 124.
[42] Ibid.
[43] Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51.
[44] Second Reading Debate, Community Protection Bill 1994 (NSW), Legislative Council, 15 November 1994 (Jeffrey W Shaw, Shadow Attorney-General of NSW) <http://www.parliament.nsw.gov.au/prod/parlment/hansart.nsf/V3Key/LC19941115009> at 14 August 2005.
[45] Foxton refers to the German spy-mania of the early 1 900s: see David Foxton, ‘R v Halliday ex parte Zadig in Retrospect’ (2003) 119 Law Quarterly Review 455, 461 fn 50.
[46] 52 & 53 Vict, c 52. See Panikos Panayi, German Immigrants in Britain During the 19th Century, 1815– 1914 (1995), 249.
[47] 1 & 2 Geo 5, c 28.
[48] 5 Edw 7, c 13.
[49] David Saunders, ‘Aliens in Britain and the Empire During the First World War’ (1985) 4 Immigrants & Minorities 5, 6.
[50] Discussed below.
[51] 4 & 5 Geo 5, c12.
[52] Prakash Shah, Refugees, Race and the Legal Concept of Asylum in Britain (2000), 43; Stephen Legomsky, Immigration and the Judiciary: Law and Politics in Britain and America (1987), 95, 244.
[53] Aliens Restriction Act 1914, ss 1(1)(a), (b).
[54] Aliens Restriction Act 1914, s 1(1)(c).
[55] Aliens Restriction Act 1914, s 1(1)(d).
[56] Aliens Restriction Act 1914, s 1(1)(e).
[57] Aliens Restriction Act 1914, s 1(1)(f).
[58] Aliens Restriction Act 1914, s 1(1)(i).
[59] Panikos Panayi, ‘The Destruction of the German Communities in Britain During the First World War’ in Panikos Panayi (ed), Germans in Britain since 1500 (1996), 116.
[60] Ibid 116–8.
[61] Aliens Restriction Act 1914, s 1(6).
[62] Aliens Restriction Act 1914, s 1(1)(i).
[63] Aliens Restriction Act 1914, s 1(6).
[64] [1920] UKHL 1; [1920] AC 508.
[65] Ruddock v Vadarlis (2001) 110 FCR 410.
[66] Cf R v Superintendent of Vine Street Police Station; Ex parte Liebmann [1916] 1 KB 268, 272.
[67] Aliens Restriction Act 1914, s 1(1)(i).
[68] R v Superintendent of Vine Street Police Station; Ex parte Liebmann [1916] 1 KB 268, 270.
[69] Panikos Panayi, ‘The Destruction of the German Communities in Britain During the First World War’ above n 59, 71–5. By late September 1914 some 13 600 persons were interned, many of whom were enemy military reservists. By February 1915, 3000 had been released with some 7000 people voluntarily repatriating.
[70] Ibid 118.
[71] Ibid 70–6.
[72] Ibid 120.
[73] James Garner, ‘The Treatment of Enemy Aliens’ (1918) 12 American Journal of International Law 27, 41; Panikos Panayi, ‘The Destruction of the German Communities in Britain during the First World War’ above n 59, 122.
[74] David Foxton, ‘R v Halliday ex parte Zadig in Retrospect’ (2003) 119 Law Quarterly Review 455, 465–6.
[75] A V Dicey, Introduction to the Study of the Law of the Constitution, (8th ed, 1915, Liberty Classics 1982 reprint ), 142-3.
[76] Robert G Menzies, The Rule of Law During the War, above n 7, 24.
[77] A V Dicey, Introduction to the Study of the Law of the Constitution, (8th ed,1915, Liberty Classics 1982 reprint), 224–8.
[78] There have been many occasions when habeas corpus has been suspended in Britain: see Robert Sharpe, The Law of Habeas Corpus (2nd ed, 1989), 94–5. See also Alfred Brian Simpson, Human Rights and the End of Empire above n 28, 57–8, where it is mentioned that the last occasion when habeas corpus was suspended in the United Kingdom was in Ireland between 1866 and 1869.
[80] Ibid 270.
[81] [1917] UKHL 1; [1917] AC 260, 263.
[82] Ibid.
[83] War Measures Act 1914, 5 Geo 5, c 2, s 5.
[84] See, eg, Gusetu v Lang (1915) 24 CCC 427.
[85] Three Spanish Sailors’ Case (1779) 2 WBl [1746] EngR 20; 1324, 96 ER 775; R v Schiever [1759] EngR 64; (1759) 2 Burr 765, 97 ER 551; Furly v Newnham (1780) 2 Doug 419, 99 ER 269.
[86] R v Schiever [1759] EngR 64; (1759) 2 Burr 765, 766[1759] EngR 64; , 97 ER 551, 552 (‘but the Court thought this man, upon his own shewing, clearly a prisoner of war, and lawfully detained as such’).
[87] Sparenburgh v Bannatyre (1797) 1 Bos & Pol 162[1797] EngR 596; , 126 ER 837.
[88] [2004] USSC 2809; 542 US 466 (SC, 2004).
[89] A V Dicey, Introduction to the Study of the Law of the Constitution (8th ed, 1915 Liberty Classics 1982 reprint), 282-3.
[90] Robert G Menzies, The Rule of Law During the War above n 7, 9.
[91] See, eg, Sylvester’s Case (1702) 7 Mod 150, 87 ER 1157.
[92] See, eg, R v Superintendent of Vine Street Police Station; Ex parte Liebmann [1916] 1 KB 268 (DC); Ex parte Weber [1916] 1 KB 280.
[93] R v Bottrill; Ex parte Kuechenmeister [1947] 1 KB 41.
[94] See Re Ditford; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, 368–9 (Gummow J).
[96] Ibid 270.
[97] Ibid.
[98] Ibid 275.
[99] Ex parte Weber [1916] AC 421.
[100] John Baker, The Oxford History of the Laws of England (2003), 63.
[101] (1532) Spelman 183, 184. Baker has pointed out that the case is misdated as 1540: Ibid 63 fn 58.
[102] Ibid 63.
[104] [1916] 1 KB 268, 279.
[105] A V Dicey, Introduction to the Study of the Law of the Constitution (8th ed, 1915, Liberty Classics 1982 reprint), 397.
[106] Oppenheimer v Cattermole [1976] AC 249, 254 (Lord Cross of Chelsea, Lord Salmon agreeing).
[107] Arnold McNair, ‘British Nationality and Alien Status in Time of War’ (1919) 35 Law Quarterly Review 213, 225.
[108] The internment of Zadig is comprehensively discussed in David Foxton, ‘R v Halliday ex parte Zadig in Retrospect’ (2003) 119 Law Quarterly Review 455
[109] ‘Whereas, on the recommendation of a competent military authority appointed under the Defence of the Realm Regulations, it appears to me that, for securing the public safety and the defence of the realm, it is expedient that Arthur Zadig, of 56 Portsdown Road, Maida Vale, W., should, in view of his hostile origin and associations, be subjected to such obligations and restrictions as are hereinafter mentioned.
I hereby order that the said Arthur Zadig shall be interned in the institution in Cornwallis Road, Islington, which is now used as a place of internment, and shall be subject to all the rules and conditions applicable to aliens there interned.
If, within seven days from the date on which this order is served on the said Arthur Zadig, he shall submit to me any representations against the provisions of this order, such representations will be referred to the advisory committee appointed for the purpose of advising me with respect to the internment and deportation of aliens and presided over by a judge of the High court, and will be duly considered by the committee. If I am satisfied by the report of the said committee that this order may be revoked or varied without injury to the public safety or the defence of the realm, I will revoke or vary the order by a further order in writing under my hand. Failing such revocation or variation, this order shall remain in force.
(Signed) John Simon, one of His Majesty’s Principal Secretaries of State. Whitehall, 15th October, 1915.’
[110] R v Halliday [1917] UKHL 1; [1917] AC 260.
[111] The Times, 12 January 1916 cited in David Foxton, ‘R v Halliday ex parte Zadig in Retrospect’ (2003) 119 Law Quarterly Review 455, 472 fn 132.
[112] David Foxton, ‘R v Halliday ex parte Zadig in Retrospect’ (2003) 119 Law Quarterly Review 455, 465.
[113] R v Halliday [1917] UKHL 1; [1916] 1 KB 738.
[114] Lawrence, Rowlatt, Atkin and Low JJ.
[115] This was presumably R v Governor of Brixton Prison (Unreported, 21 December 1915), mentioned below, which concerned a natural-born British subject.
[116] [1917] UKHL 1; [1916] 1 KB 738, 739.
[117] Ibid 739–40.
[118] Ibid 740.
[119] R v Governor of Brixton Prison (Unreported, 21 December 1915, Ridley and Darling JJ).
[120] [1917] UKHL 1; [1916] 1 KB 738, 742.
[121] Liversidge v Anderson [1941] UKHL 1; [1942] AC 206, 247. See also Robert Heuston, ‘Liversidge v Anderson in Retrospect’ (1970) 86 Law Quarterly Review 33.
[122] [1917] UKHL 1; [1916] 1 KB 738, 745.
[123] R v Governor of Brixton Prison (Unreported, 21 December 1915). That the subject of those proceedings was a natural born subject was confirmed in argument by Sir Frederick Smith in R v Halliday [1917] UKHL 1; [1916] 1 KB 738, 740.
[124] 4 & 5 Geo 5 c 17.
[125] See also Francis Hirst, The Consequences of the War to Great Britain (1934), 109.
[126] [1917] UKHL 1; [1917] AC 260, 261.
[127] Defence of the Realm (Amendment) Act 1915 (5 Geo 5, c 31), s 1(1).
[128] [1917] UKHL 1; [1917] AC 260, 261–2.
[129] Ibid 261.
[130] A V Dicey, Introduction to the Study of the Law of the Constitution, (8th ed, 1915, Liberty Classics 1982 reprint), 397.
[131] Defence of the Realm (Amendment) Act 1915, s 1(1).
[132] [1917] UKHL 1; [1917] AC 260, 269.
[133] Ibid.
[134] [1917] UKHL 1; [1917] AC 260, 291-292.
[135] Ibid 300.
[136] [1917] UKHL 1; [1917] AC 260, 290–1].
[137] Defence of the Realm (Consolidation) Act 1914 (5 Geo 5, c 6), s 1 (5). This statute was assented to on 27 November 1914. This statute was passed in the House of Lords against the opposition of Lords Loreburn, Halsbury, Bryce and Parmoor. In order to enable the Bill to be quickly passed, Lord Chancellor Haldane gave an undertaking that no British citizen who was a civilian would be shot, if sentenced to death by court martial, at any time between then and the next session when the Act would be amended. The right of a British subject charged with such an offence which is triable by court martial to be tried by a civil court with a jury was given by the Defence of the Realm Amendment Act 1915 (5 Geo 5, c 34), s 1(1). This latter statute was assented to on 16 March 1915. See Francis Hirst above n 130, 109. See also David Foxton, ‘R v Halliday ex parte Zadig in Retrospect’ (2003) 119 Law Quarterly Review 455, 464.
[138] [1917] UKHL 1; [1917] AC 260, 276.
[139] Ibid 277.
[140] Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12, s 9 contains the Commonwealth Constitution.
[141] 28 & 29 Vict c 63.
[142] 22 Geo 5 c 4.
[144] Robert G Menzies, above n 7.
[145] Ibid.
[146] [1915] ArgusLawRp 72; [1915] VLR 476, 485.
[147] Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34; (1931) 46 CLR 73.
[148] It may be questioned what value the disallowance of a regulation may have as the Executive is committed to the regulation and the members of the Executive would dominate the Houses of Parliament. However, since the introduction of proportional voting for the Senate the Government has mostly not been in control of the Senate.
[149] Above n 146.
[150] War Precautions Act 1914 (Cth) as amended by the War Precautions Act 1915 (Cth).
[151] Commonwealth, Parliamentary Debates, House of Representatives, 28 October 1914, 369 (Andrew Fisher MHR, Prime Minister).
[152] Commonwealth, Parliamentary Debates, House of Representatives, 28 October 1914, 369 (Joseph Cook).
[153] Sir William Irvine later became Chief Justice of Victoria in 1918 after the death of Sir John Madden.
[154] Commonwealth, Parliamentary Debates, House of Representatives, 28 October 1914, 371 (William Irvine MHR).
[155] Commonwealth, Parliamentary Debates, House of Representatives, 28 October 1914, 372 (Littleton E Groom MHR).
[156] Commonwealth, Parliamentary Debates, House of Representatives, 28 October 1914, 372 (William M Hughes MHR).
[157] 4 & 5 Geo 5, c 17.
[158] British Nationality and Status of Aliens Act 1914, s 8.
[159] British Nationality and Status of Aliens Act 1914, First Schedule.
[160] Commonwealth, Parliamentary Debates, House of Representatives, 28 October 1914, 383 (Patrick Glynn MHR).
[161] Commonwealth, Parliamentary Debates, House of Representatives, 28 October 1914, 375 (William Guy Higgs MHR).
[162] Ibid.
[163] War Precautions Act 1914, s 5(f).
[164] Commonwealth, Parliamentary Debates, Senate, 28 October 1914, 346 (Senator Stewart).
[165] Ibid.
[166] Ibid.
[167] Ibid.
[168] Ibid.
[169] Ibid.
[170] Ibid.
[171] Ibid.
[172] Ibid.
[173] Ibid.
[174] War Precautions Act 1914, s 5 (f).
[175] Melbourne: William Adena; Brisbane: Eugen Hirschfeld MD; Perth: Ludwig Ratazzi; Hobart: Alfred Dehle; Newcastle: Otto Johannsen. In South Australia Consul Mueckle, whose son was fighting in France, after being wounded in Gallipoli, was released from internment and placed under house arrest.
[176] See, Gerhard Fischer, Enemy Aliens: Internment and the Homefront Experience in Australia 1914–1920, (1989); Jürgen Tampke and Colin Doxford Australia, Willkommen: A History of the Germans in Australia (1990).
[177] Education Act Amendment Act 1916 (SA), s 5. The Schedule lists 49 Lutheran schools.
[178] See, Morton Prince, The Creed of Deutschtum, and other War Essays (1918).
[179] The court papers of the Wallach case are located in the Victorian Public Record Series 37, box number 24, case file number 2874. Series 37 is named: Supreme Court of Victoria, Habeas Corpus Jurisdiction, case files 1840 to 1922.
[180] However, even though Wallach had a formal release of Prussian citizenship, the Delbrück Law of 1913 enabled him to later claim German nationality: see Arnold McNair, ‘British Nationality and Alien Status in Time of War’ (1919) 35 Law Quarterly Review 213, 225.
[181] Contemporary records in the National Archives of Australia, including military intelligence files, confirm that the authorities believed that the Australian Metal Company was owned by the British registered company Merton Metallurgical, which was under the control of the Frankfurt company Metallgesellshaft. It would seem that one agenda of Attorney-General Hughes was to eliminate the Australian Metal Company which had long-term contracts to supply iron ore to Germany. Whilst both Imperial and Australian trading with the enemy legislation would have prevented the performance of the contracts during the war, the Government, which would have been motivated by strategic considerations, may have been concerned that under international law the contracts may survive any peace treaty.
[182] Schmidt was naturalised on 20 August 1914.
[183] R v Lloyd; Ex parte Wallach [1915] ArgusLawRp 72; [1915] VLR 476, 477.
[184] [1915] ArgusLawRp 72; (1915) 21 Argus LR 295 at 296. See also [1915] HCA 60; (1915) 20 CLR 299, 300.
[185] Ibid. See also [1915] HCA 60; (1915) 20 CLR 299, 300.
[186] [1915] ArgusLawRp 72; [1915] VLR 476, 500.
[187] Ibid.
[188] [1915] ArgusLawRp 72; [1915] VLR 476, 485 (Cussen J), 479–480 (Mann and Mitchell QC, in argument). See also Ah Sheung v Lindberg [1906] VLR 326.
[189] (1871) 13 Wal 397 (Tarble’s Case) cited in argument: [1915] ArgusLawRp 72; [1915] VLR 476, 479.
[190] [1915] ArgusLawRp 72; [1915] VLR 476, 495.
[191] Ibid 498.
[192] Ibid 499.
[193] Ibid 497.
[194] Ibid 508.
[195] Ibid 505–6.
[196] Ibid.
[197] See Victorian Public Record Series 37, box number 24, case file number 2874.
[198] [1915] ArgusLawRp 72; [1915] VLR 476, 480.
[199] Ibid 481.
[200] Ibid.
[201] Commonwealth Constitution, s 123.
[202] Marconi’s Wireless Telegraph Co Ltd v The Commonwealth (1913) 16 CLR 178.
[203] [1915] ArgusLawRp 72; [1915] VLR 476, 484.
[204] [1978] HCA 43; (1978) 142 CLR 1.
[205] [1915] ArgusLawRp 72; [1915] VLR 476, 489.
[206] Ibid 493.
[207] Ibid 508–9.
[208] Ibid 488.
[209] Ibid 508–9.
[210] [1915] ArgusLawRp 72; (1915) 21 Argus LR 295 at 309. This riposte of the Chief Justice was not reported in the Victorian Law Reports.
[211] [1915] ArgusLawRp 72; [1915] VLR 476, 497.
[212] Editorial, The Argus (Melbourne), 10 August, 1915, 6.
[213] Ibid.
[214] Ibid.
[215] Ibid.
[216] Ibid.
[217] Ibid.
[218] [1915] HCA 60; (1915) 20 CLR 299, 302.
[219] Lloyd v Wallach [1915] HCA 60; (1915) 20 CLR 299.
[220] Ibid 314.
[221] David Foxton, ‘R v Halliday ex parte Zadig in Retrospect’ (2003) 119 Law Quarterly Review 455, 480.
[222] [1915] HCA 60; (1915) 20 CLR 299, 309–310.
[223] See, Cox v Hakes [1890] UKLawRpAC 36; (1890) 15 App Cas 506; Secretary of State for Home Afairs v O’Brien [1923] AC 603.
[224] [1927] HCA 4; (1927) 39 CLR 245.
[225] [1927] HCA 4; (1927) 39 CLR 245, 262.
[226] 28 & 29 Vict c 63.
[227] Union Steamship Co. of New Zealand Ltd. v Commonwealth [1925] HCA 23; (1925) 36 CLR 130.
[228] Commonwealth Constitution, s 98. See also, Tony Blackshield and George Williams, Australian Constitutional Law and Theory (3rd ed, 2002), 153.
[229] 28 & 29 Vict, c 63.
[230] 22 Geo 5, c 4.
[231] Statute of Westminster Adoption Act 1942 (Cth).
[232] 4 & 5 Geo 5, c 17.
[233] 5 Geo 5, c 2 (Canada).
[234] Robert G Menzies, The Rule of Law During the War above n 7, 24.
[235] Ibid.
[236] See, e.g., Edward Edwards (formerly Eichengren), the former manager of the Continental Motor Tyres; born, 14 March 1878; naturalised, 14 March 1878; deported, 29 May 1919.
[237] Alfred Brian Simpson, Human Rights and the End of Empire above n 28, 33.
[238] David Dyzenhaus (ed), Recrafting the Rule of Law: The Limits of Legal Order above n 36, 10–11; Lawrence B. Solum, ‘Equity and the Rule of Law’ in Ian Shapiro (ed), The Rule of Law (1994), 122. The influence of Dicey is comprehensively discussed in Alfred Brian Simpson, Human Rights and the End of Empire above n 28, Chapter 1.
[239] See, eg, Norman Dorson & Prosser Gifford (eds), Democracy and the Rule of Law (2001).
[240] See, Judith Shklar, ‘Political Theory and the Rule of Law’ in Shklar, Political Thought & Political Thinkers (1999), 21 at 26 cited by David Dyzenhaus, ‘An Unfortunate Outburst of Anglo-Saxon Parochialism’ (2005) 68 Modern Law Review 673. Interestingly, Margaret Thatcher wrote: ‘For Dicey, writing in 1885, and for me reading him some seventy years later, the rule of law still had a very English, or at least Anglo-Saxon, feel to it’: see Margaret Thatcher, The Path to Power (1995), 84-5 .
[241] Conor Gearty, European Civil Liberties and the European Convention on Human Rights: A Comparative Study (1997), 64 quoted in Alfred Brian Simpson, Human Rights and the End of Empire above n 28, 35.
[242] A V Dicey, Introduction to the Study of the Law of the Constitution, (8th ed, 1915, Liberty Classics 1982 reprint), 142-5.
[243] In cases such as Union Bank v Munster [1887] UKLawRpCh 196; (1887) 37 Ch D 51 Kekewich J remarked:
‘It is to my mind much to be regretted, and it is a regret that I believe every Judge on the bench shares, that text-books are more and more quoted in Court – I mean of course text books by living authors – and some Judges have gone so far as to say that they shall not be quoted’.
This practice was in no ways uniform and there are instances of the citation of the works of eminent living authors such as Scrutton: see Proctor Garrett Marston Ltd v Oakwin Steamship Co Ltd [1926] 1 KB 244. Perhaps, the high water mark of the practice of the courts in not citing ‘living authors’ is seen in the judgment of Lord Tomlin in Donohue v Stevenson [1932] AC 562, 565: ‘The law books give no assistance, because the work of living authors, however deservedly eminent, cannot be used as authority, though the opinions they express many demand attention’. However, in 1947 Denning J considered that the notion that ‘works are not authority except after the author’s death has long been exploded’: (1947) 63 Law Quarterly Review 516. Today the courts have no difficulty with the citation of works of living authors: see Fury Shipping Co Ltd v State Trading Corporation of India Ltd [1972] 1 Lloyd’s Rep 509; Geveran Trading Co Ltd v Skjevesland [2003] BPIR 73.
[244] A V Dicey, Introduction to the Study of the Law of the Constitution, (8th ed, 1915, Liberty Classics 1982 reprint), 397.
[245] In 2001 Sir Harry Gibbs remarked: ‘The institutions that we value most – our democracy, the rule of law, and a liberal society – all have their origins in Great Britain. Unfortunately with the decline in the teaching of history, too many people are unaware of the long struggle, over the centuries, by which Great Britain became a free society under a constitutional monarch.’ (Annual Neville Bonner Oration, All Saints Church, Brisbane, 8 October 2001).
[246] Sir John Madden was the second son of John Madden, solicitor, of Cork, Ireland, and was born there in 1844. As well as holding the Chief Justiceship he was the Lieutenant-Governor of the State of Victoria and was thus at the apex of the establishment in Victoria. He was a graduate of the University of Melbourne (BA, 1864; LLB, 1865; LLD, 1869). He was knighted in 1893, made a KCMG in 1899, and GCMG in 1906. He died whilst in office as Chief Justice in 1918.
[247] David Foxton, ‘R v Halliday ex parte Zadig in Retrospect’ (2003) 119 Law Quarterly Review 455, 494, referring to ‘Lord Shaw’s unfairly neglected judgment’.
[248] Robert Heuston, ‘Liversidge v Anderson in Retrospect’ (1970) 86 Law Quarterly Review 33; Robert Heuston, ‘Liversidge v Anderson: Two Footnotes’ (1971) 87 Law Quarterly Review 161; Lord Bingham of Cornhill, The Business of Judging (2000), 211 ff.