Law in War: Freedom and restriction in Australia during the Great War

By Catherine Bond

During the Great War law was used in everyday life as a tool to discriminate, oppress, censor, and deprive many Australians of property, liberty, and basic human rights. A nation often amends its laws during war, not least to regulate life at home. Yet few historians have considered the impact of the law on Australians during the First World War. In this original book, Catherine Bond breathes life into the laws that were central to the way people were managed in Australia 191418. Engaging and revelatory, Law in War holds those who wrote the laws to account, exposing the sheer breadth and impact of this wartime legal regime: the injustices of which linger to this day. More than anything, it illuminates how ordinary people were caught up in—and sometimes destroyed by—these laws created in the name of victory.

• Language: English
• Publisher: NewSouth
• Release date: Jul 1, 2020
• ISBN: 9781742244846

Book preview

CATHERINE BOND is an Associate Professor in the Faculty of Law, UNSW Sydney. Trained in intellectual property law, she explored the history of Australian copyright law in her PhD thesis. In 2016 she published her first book, Anzac: The Landing, The Legend, The Law, and, as part of that work, she became interested in the little-considered topic of how law affected life in the Australian community during the First World War.

Aboriginal and Torres Strait Islander readers are advised that this book contains images and names of deceased people.

FREEDOM AND RESTRICTION IN AUSTRALIA DURING THE GREAT WAR

CATHERINE BOND

A NewSouth book

Published by

NewSouth Publishing

University of New South Wales Press Ltd

University of New South Wales

Sydney NSW 2052

AUSTRALIA

newsouthpublishing.com

© Catherine Bond 2020

First published 2020

This book is copyright. Apart from any fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act, no part of this book may be reproduced by any process without written permission. Inquiries should be addressed to the publisher.

A catalogue record for this book is available from the National Library of Australia

ISBN:  9781742236483 (paperback)

9781742244846 (ebook)

9781742249346 (ePDF)

Design Josephine Pajor-Markus

Cover design Luke Causby, Blue Cork

Cover image Main image: Photograph including the Kong Meng brothers, seated, from the Euroa Historical and Genealogical Society. Background image: Prison record of Adela Pankhurst, Public Record Office Victoria, VPRS 516.

All reasonable efforts were taken to obtain permission to use copyright material reproduced in this book, but in some cases copyright could not be traced. The author welcomes information in this regard.

CONTENTS

Introduction: Australia’s law during the First World War

Chapter 1 Writing the law: William Hughes and Robert Garran

Chapter 2 Enforcing the law: Frederick Sickerdick

Chapter 3 Fighting the law: Franz Wallach

Chapter 4 Internment by law: Karl Lude

Chapter 5 Protesting the law: Jennie Baines and Adela Pankhurst

Chapter 6 Imprisoned and deported by law: Tom Barker

Chapter 7 Discrimination by law: George Kong Meng, Harry Grant and Douglas Grant

Chapter 8 Benefitting from the law: George Nicholas and Harry Woolf Shmith

Conclusion Australia, war and law today

Acknowledgments

Notes

Index

War now-a-days involves a great deal of law.

— Sir Robert Garran

INTRODUCTION: AUSTRALIA’S LAW DURING THE FIRST WORLD WAR

The egging of the Australian Prime Minister at the train station in Warwick, Queensland. Women taking to the streets of Melbourne, Victoria, demanding reasonable prices for food. A German-born man who, having lived in Australia for more than two decades, decided he didn’t want to be interned in a concentration camp without knowing the reason for it. Each of these incidents resulted in changes to Australia’s laws, but these were only small amendments to the already extensive legal regime that intimately shaped the lives of the Australian community from 1914 until long after the last gunshots were fired on Armistice Day, 1918.

Law has always been crucial to Australia’s involvement in war, whether through existing defence legislation or new provisions designed to deal with a developing incident or conflict. Law provides the framework upon which all wartime defence, economic and social policies and decisions are built. Yet most of us remain unaware of law’s foundational role, because it has generally been overlooked in Australian war history.

Exhibit A: Australia during the War, volume 11 of the 12-item series The Official History of Australia in the War of 1914–1918.¹ That book was penned by Professor Ernest Scott, a historian at the University of Melbourne, with the series itself edited by Charles Bean, a journalist and Australia’s official war correspondent, who had been appointed as official historian and tasked with producing an extended account of Australia’s involvement in the recent conflict.

Volume 11 originally had a different name and a different author, with journalist Thomas Heney contracted to write what was then named The Effort in Australia. Although he completed the first few chapters quite quickly, Bean was dissatisfied with Heney’s work and around 1924 approached other writers, including Scott, to assist with the volume. Heney resolved to finish the book but in early 1928 resigned from the project on account of ill-health; he died later that year. Scott agreed to take over the volume.²

In mid-1928 Scott sent Bean a table of contents with his vision for The Effort in Australia, comprising five ‘books’ – essentially thematic parts, each with multiple chapters – mapping out the different aspects of life in Australia during the war. Book IV was titled ‘The Citizen and the War’, with chapter XIX to be on the ‘Legislative and Judicial’. As noted in his accompanying letter, the addition of a dedicated chapter on law was Scott’s idea as Heney’s plans had not included one.³ Bean concurred on the need for that addition, and in his responding letter commented on how the wartime federal and state governments were almost completely unified, ‘partly through the War Precautions Act and the Defence Act’. Bean thought it ‘extraordinary how smoothly this revolution was effected under the constitution of the Commonwealth’, though acknowledging that it ‘was designed largely to meet this contingency’.⁴ Bean’s use of the word ‘revolution’ here is interesting; in many senses it was. However, this was not a traditional revolution of the people against the government, but rather a legal revolution of a government against its people, motivated by a higher cause: victory in war.

Aware of the intricacy and importance of the legal chapter, Scott suggested an alternative author: Professor Kenneth Bailey, also of the University of Melbourne.⁵ Though Bean received the necessary permissions to include Professor Bailey on the project, five years later the chapter remained unwritten. In 1933 Bailey contacted Bean to see whether he should continue on the project;⁶ the next year, when Scott’s manuscript was being finalised, the work still had not been produced. At the same time, Scott and Bean availed themselves of an offer too good to refuse: a promise made by Sir Robert Garran to read the manuscript of the now-renamed Australia during the War. During the war Garran had been Secretary of the Attorney-General’s Department, then the federal Solicitor-General, responsible for drafting wartime statutes and regulations while also overseeing the administration of those laws.

As the correspondence between Bean and Scott reveals, however, in addition to commenting on the typescript, Garran also helped Bean resolve an outstanding issue. In a letter to Scott dated 1 June 1934, Bean noted that Garran had ‘question[ed] … the necessity or advisability for a legal chapter’, adding that Bean himself ‘had for some time been strongly impelled towards the same view’.⁷ The previous day Bean had written to Bailey, confirming the decision to scrap the legal chapter, citing Garran’s view that it was ‘doubtful if such a chapter is called for, and that any omissions could quite easily be made good in the text’.⁸

It is clear from these letters that Garran’s opinion was not the sole factor in the decision to omit the legal chapter in Australia during the War. Nor was Garran the only person with a potential conflict of interest consulted during the creation of the Official History. Many politicians, including former Prime Minister and Attorney-General Sir William Morris ‘Billy’ Hughes, in addition to military men directly involved in the war effort in Australia and abroad, read chapters of the multiple volumes of the Official History prior to publication. Some did so at Bean’s request; others demanded the privilege.

Still, by that point, little had been written on Australia’s law during the war. There were a few articles published in law journals: one penned by future Prime Minister Robert Menzies, another co-authored by future politician and Justice of the High Court of Australia HV Evatt.⁹ Garran also mentioned some wartime constitutional issues in a 1924 journal article.¹⁰ But there had been no detailed discussion or interrogation of these laws; and now, in 1934, the opinion of the man who wrote the majority of Australia’s wartime laws was a deciding factor in omitting a sustained examination of them from the Official History.

Despite the only cursory mentions of law in Australia during the War, it remains the pre-eminent account of Australia’s legal regime during the First World War. While law has been mentioned in subsequent social and political histories, and the War Precautions Act (Cth) has become infamous, the details of this statute and its myriad regulations have rarely been discussed. Some legally focused scholarship, considering one specific law or aspect, has begun to appear, largely during the centenary period.¹¹ Work by historian Jo Hawkins, in addition to my own book, Anzac: The Landing, The Legend, The Law, explored the historical and continuing legal control over use of the word ‘Anzac’. Articles by teacher and historian Tony Cunneen examined how the legal profession was affected by and contributed to the war effort. Journal articles on topics such as anti-shouting laws, restrictions on protests and use of enemy-owned intellectual property have also appeared, among others. But these previous works have each mapped only one small, discrete part of the overall legal picture. There has been no holistic examination of Australia’s First World War legal regime, a gap that this book aims to help fill.

A number of reasons might explain such an omission. Law itself is often seen as dull. Stories of the wartime regulations that required people to seek permission from the Minister for Defence to buy tin plates, or restrictions on how much local bakers could charge for a loaf of bread, are not as inspirational or nation building as the 1915 Gallipoli landing or the 1917 Battle of Beersheba. The overly formal and often impenetrable language used in legislation is also an understandable deterrent.

Given that much of Australia’s wartime legal regime came from Britain, at least during the early stages, it might be argued that there is no need to consider Australian law as a distinct entity. As influential as British law was, however, Australia’s legal regime and wartime experiences were specific to this nation. Writing on the Australian treatment of ‘the enemy at home’, for example, historian Peter Monteath commented that ‘since Federation in 1901 Australia was increasingly making its own decisions about what kind of country it wished to be and who should be permitted to live here’.¹² This manifested itself in Australia’s treatment of such ‘aliens’ both during and after the war.

Further, while a controversial claim, as a nation Australia is generally not comfortable with acknowledging or accepting responsibility for its mistakes and injustices, particularly those at an institutional level. Australians had already experienced two and a half years of life under Australia’s wartime legal regime, their newspapers censored and their neighbours taken to internment camps, when they returned Hughes to power in the 1917 federal election. The historical and continued treatment of Indigenous Australians, equal parts destruction and discrimination, is another striking, shameful example of a situation that other Australians ignored. Such treatment continued during the First World War; the law humiliated Indigenous, Chinese and other individuals of ‘non-European’ descent by denying them the ability to enlist and serve their country – through a statute that actually pre-dated the war.

Australia may have ultimately been on the side of victory, but the trinity of war-focused legislation passed by the federal parliament during this period – the War Precautions Act, the Trading with the Enemy Act (Cth) and the Unlawful Associations Act (Cth), along with the many regulations enacted under those statutes – arguably went beyond what was necessary for success in wartime. Philosopher John Locke famously stated that ‘Where-ever law ends, tyranny begins’; in First World War Australia, law perpetuated a form of tyranny in the name of victory in war. Not that Garran would agree with such a statement given that, in his memoir Prosper the Commonwealth, he commented that ‘I doubt whether tyrannical power was ever more untyrannical exercised’ than by himself and Hughes.¹³

As part of a 1999 speech, former Justice of the High Court and then Governor-General Sir William Deane publicly apologised to the German-Australian community for what it had experienced during the two world wars. Historian Gerhard Fischer has, in my view correctly, described this as a ‘little-known apology’.¹⁴ Deane stated in part that:

The tragic, and often shameful, discrimination against Australians of German origin fostered during the world wars had many consequences. No doubt, some of you carry the emotional scars of injustice during those times as part of your backgrounds or family histories. Let me as Governor-General say to all who do how profoundly sorry I am that such things happened in our country.¹⁵

Law made this treatment possible. Between 1914 and 1918, it was used as a tool against certain individuals born and resident in this country, for the purposes of discrimination, oppression, censorship, and deprivation of property, liberty and basic human rights. This legal regime created a deep injustice that, for the most part, remains undocumented and unacknowledged. Such claims might sound like hyperbole, but Law in War documents the humiliation, discrimination and scandal inflicted upon eight individuals living in Australia during the First World War, perpetuated by laws created in the name of the war effort.

At the same time, it is also important to recognise that the law in force during the First World War also benefitted some in the community. This book thus documents the experiences of five individuals whose careers, reputations and fortunes were boosted by the legal regime in force during this time.

I chose to examine the extent and impact of Australian law during the First World War through the eyes, voices and experiences of 13 individuals, because all too often I have found law to be divorced from people. It is an aspect of legal study and scholarship that I continue to dislike after nearly 20 years of a life in the law. I teach an undergraduate legal ethics course, and part of that class focuses on students viewing clients as people, not legal problems to be solved. From their first classes, law students are taught to read case law – reports of a judge’s finding, resolving a dispute – but, when focusing on concepts of ratio decidendi and obiter dicta, it is easy to forget that there are parties to that case, human beings whose day in court was likely the worst day of their lives.

The legal academy (including me) is similarly guilty of this, talking about statutes, regulations, jurisprudence and case law as though these are living, breathing entities. But this approach often fails to recognise that, in fact, law is all about people. Individuals write the law. Individuals interpret the law. Individuals are held accountable by the law or hold others to account under the law. And by inserting that life into the law, learning more about the politicians who passed the law, the parties to a case, the lawyers litigating the dispute, the judges who ultimately make the legal decision, it is possible to gain a much richer and more engaging understanding of a particular law and legal area. There is a place for what is known as doctrinal, or black-letter law, analysis – and this is still needed in relation to many of the laws discussed here – but documenting the individual legal experience is the aim of this book.

A focus on individuals raises a number of ethical issues around biography. Biography is a prominent popular and academic genre and thus ethical dilemmas about what to include, or not include, are not new. However, such dilemmas generally do not occur where knowledge of an individual is limited to facts in reported case law. Law in War draws on a larger number of resources than generally cited in legal scholarship, including archival documents held by the National Archives of Australia, the Australian War Memorial, the National Library of Australia and various state libraries and archives. Today, organisations such as the National Archives hold an enormous amount of information about interactions between private citizens and public institutions; individuals who, but for these government records, would have left behind very little documentary evidence.

The centenary of the First World War led many archival collections, around the world, to engage in large-scale digitisation projects that made the service records of successful and unsuccessful enlistees freely available online. On the one hand, such access is revolutionary, providing descendants of soldiers with information about family members who served, or sought to serve, via a few clicks of a button. Historians, academics, writers and journalists also now have access to thousands of valuable Australian stories that might not otherwise have been revealed. Yet, on the other hand, such access comes at the cost of individual privacy. Even though a soldier, and his immediate family, may have passed away long ago, service records are comprehensive documents, providing everything from enlistment dates to places of service to discharge dates, and records of any arrests, desertions or diagnosis of venereal disease.

For those individuals who received the government assistance available to veterans, including pensions, housing and healthcare, the files are even larger, filled with medical reports, personal letters and in some cases death certificates. Today there is much talk about digital and online privacy, but there are times when I have been in archives or libraries, going through government-produced records on an individual, and felt as though I was going through that person’s dirty laundry or garbage.

One man stands out to me here. In an earlier version of this book I had planned to discuss the experiences of a particular Indigenous soldier. When looking into a person’s life, one of my first aims was to try and find a photo, and I did find a photo of this individual. But the nature of the photo left me uneasy; it was a mug shot taken upon this man’s imprisonment in a New South Wales gaol. Shortly after his release the man tried to enlist but was refused on medical grounds, because he had scabies. After a second try he succeeded in enlisting and then served overseas; he was injured and, on the way home, deserted. He was caught and arrested. Initially, I thought that his story would be a valuable inclusion here, but as I went through the abundance of information recorded about this soldier, my sense of uneasiness grew. I felt that in telling part of the story of this Indigenous man’s life, I, as a white woman, was exploiting the decisions he made without foreseeing that these would be recorded and publicly accessible over a century later.

With such considerations in mind, the individuals who appear in Law in War are those whose stories make a larger point about the impact of Australia’s wartime legal regime, rather than their personal decisions. Together, the legal experiences of these individuals also highlight the breadth and extent of the law during this conflict.

A number of names in this book are already well known, raising questions as to why their experiences need to be revisited here. Both Sir William Hughes and Sir Robert Garran penned memoirs and have been the subject of biographies, so I was in two minds about including a chapter on them in this book. Laws, however, do not serendipitously appear: they are written by hands and go through parliamentary processes or Executive branch approval. In First World War Australia, Hughes, as Attorney-General, and Garran, as Secretary of the Attorney-General’s Department, then Solicitor-General, wrote the laws that shaped the experiences of those in the chapters to come. Part of what I seek to do in this book is hold Hughes and Garran accountable for the decisions they each made during this period. As a result though, chapter 1, which focuses on these men, is slightly different from the remainder; while I do introduce the lives and roles of Hughes and Garran, this chapter also sketches the legislative framework underpinning the regulations and experiences in subsequent chapters.

Chapter 2 examines police officer Frederick Sickerdick, who was born in South Australia but had a Prussian grandfather. It is not an overstatement to suggest that the war made Sickerdick’s career. His experiences at the coalface of enforcing Australia’s wartime legal regime highlight the extent to which daily life was affected by law.

Chapter 3 documents the ordeal of Franz Wallach, a successful businessman and naturalised British subject, who saw the company he helped build be legally destroyed and his personal freedom lost on his legal internment between 1915 and 1919. In this chapter I also highlight the limited legal avenues available to individuals during the war. Chapter 4 then explores internment through the experiences of Wilhelm ‘Karl’ Lude, a German reservist whose behaviour was subsequently subject to a South Australian royal commission. Lude’s life in internment camps in South Australia and then New South Wales also provide an avenue for examining daily life in these camps.

Chapter 5 examines the wartime activities of suffragettes and socialists Sarah Jane ‘Jennie’ Baines and Adela Pankhurst, British emigrants who found themselves on the wrong side of the War Precautions Act on more than one occasion. However, along with a fellow suffragette and socialist, Alice Suter, these women have the unique distinction of being the only individuals to have their convictions under the War Precautions Act overturned by the High Court (don’t fly the Red Flag in celebration just yet: it was on a technicality).

Chapter 6 considers the experiences of Tom Barker, a member of the Industrial Workers of the World (‘the Wobblies’) and editor of the newspaper Direct Action. Barker was arrested and gaoled; released after a public campaign; arrested and gaoled again; released after a public campaign again; arrested and gaoled again and then deported to Chile. This chapter also maps how law interacted with politics and censorship during the war.

While Adela Pankhurst is likely only second to Hughes in the number of biographies written about her, including pieces on her legal experiences, and Tom Barker narrated a few accounts of his war-time experiences in the 1960s and has been a feature of literature on the Wobblies in Australia, their experiences are included to illustrate the breadth of law at this time, and how it became increasingly specific and reactive to circumstances.

Chapter 7 highlights the experiences of three men – George Kong Meng, Harry Grant and Douglas Grant – and the discrimination that they faced under the law when seeking to serve and fight for their country of birth.

Chapter 8 finishes on a slightly happier note: the experiences of two men, George Nicholas and Harry Woolf Shmith, who benefitted from the law. While these inventors parted ways not long after acquiring this benefit, the product they created can still be found on supermarket shelves today, all due to advantages gained under the Patents, Trade Marks and Designs Act 1914 (Cth).

With the centenary of the First World War behind us, why does the law, told through the accounts in this book, matter now? The simple answer is that some of the more controversial laws of today started here. While many of the wartime restrictions were repealed