Adam Carr

Intellectuals and Politics in 1930s Melbourne 
Events leading to the formation of the 
Australian Council for Civil Liberties, 
1914-37

3. Civil liberties in Australia 1914-36

The first question to be asked about the forming of the ACCL is: why 
did it take so long? The civil and political rights of Australians 
had been hotly contested ever since 1914, and had been the subject 
of intense political conflict at several points in the 1920s and 
1930s. Several federal elections, notably that of 1925, had been 
fought almost exclusively on these issues. Yet it was not until 
1935, apparently, that it occurred to anybody to form an 
organisation designed specifically to address them. This requires 
some explaining, especially since a model had existed since 1920 in 
the form of the American Civil Liberties Union. 

World War I and the 1920s

The outbreak of World War I posed an unprecedented challenge to the 
political institutions of the English-speaking democracies as they 
found themselves drawn into the first global industrialised war. 
Twentieth century warfare required the mobilisation of the whole of 
the combatant nations, not just of a professional army, and the 
successfully militarised society of the German adversary seemed to 
call for a comparable militarisation of the allied nations. In the 
English-speaking countries, governments met this challenge by giving 
themselves unprecedented powers, backed (at least initially) by the 
full force of public opinion. Opposition to the war, where it 
existed, was met with repression, directed variously at pacifists, 
socialists, German-speaking minorities, Irish republicans and anti-
conscriptionists. As enthusiasm for the war waned after 1915, 
repression of anti-war elements became more severe, and became 
itself a cause of further disaffection. An Australian writer said 
that: "The war which was to have made the world safe for democracy 
placed authority more firmly in the saddle; the world was in danger 
of forgetting - or of not being allowed to remember - that 
democracy lives by persuasion, not by dictation."[16]

In Australia, the ALP government of Andrew Fisher passed the War 
Precautions Act of 1914, modelled on the British Defence of the 
Realm Act. This gave the government sweeping powers of economic and 
manpower direction, political surveillance and censorship, subject 
only to the Constitution (and the High Court consistently allowed 
the most liberal interpretation of the government's wartime powers). 
In the hands of the autocratic Billy Hughes, Prime Minister from 
1915, these powers were used extensively against the radical and 
anti-war wing of the labour movement, particularly against the 
revolutionaries of the Industrial Workers of the World (IWW). The 
battles over conscription in 1916 and 1917, which split the ALP and 
saw Hughes form a Nationalist government, deepened the polarisation 
in Australian society. Many violations of peacetime freedoms could 
be and were excused on the grounds of wartime necessity, but the 
conflict between Hughes and the left of the labour movement did not 
end with the return of peace in 1918.[17]

The postwar years were a period of fierce industrial conflict, in 
which middle-class fears of union militancy were intensified by the 
rhetoric of social revolution used by some unions, the newly formed 
Communist Party, and even by the ALP, which adopted its Socialist 
Objective in 1922. The class polarisation of the period sustained 
the Nationalist Party in office until 1929. The central figure in 
the government's response to industrial challenges was John Latham, 
Attorney-General in Stanley Bruce's Nationalist government. In 
January 1926, following the government's failure to secure the 
deportation of two foreign-born union officials, Tom Walsh and Jacob 
Johnson (or Johanson), using the deportation powers of the Migration 
Act, he introduced amendments to the Crimes Act aimed at, as one 
newspaper headline put it, "wreckers," "revolutionary 
associations" and "strikemongers."[18]

The bill inserted a new Section IIA into the Act, entitled 
"Protection of the Constitution and of Public and Other Services," 
which declared to be "unlawful associations" any body of persons 
"which by its constitution or propaganda or otherwise advocates or 
encourages the overthrow of the Constitution of the Commonwealth by 
revolution or sabotage." Other sections made it an offence to 
advocate by speech or writing the overthrow of the Constitution, or 
to contribute goods or money to an unlawful association, or to print 
its newspapers." Another section required an individual to prove 
that he or she was not a member of an unlawful association rather 
than requiring the government to prove that he or she was. Latham 
justified this legislation by claiming that there was "a small but 
growing body of men who, inspired by foreign ideals, deliberately 
seek the destruction of Australian democracy," and quoted 
extensively from Marx and from publications of the Communist Party 
of Australia (CPA) advocating revolution. In a memorable if somewhat 
sinister passage, he asserted that, "It is not sufficient to counter 
propaganda of this character by mere argument intended to secure 
intellectual conviction. Some of these men are not open to 
intellectual conviction; they require criminal conviction."[19]

From the Depression to the Kisch case

Latham's legislation seems to have made little practical difference 
to the industrial climate, and it was Bruce and Latham's mishandling 
of industrial relations which led to the fall of Bruce's government 
in 1929. Latham returned to his post as Attorney-General in the UAP 
government of Joe Lyons, which took office in 1932. By this time the 
Depression and the inflammatory rhetoric of NSW Premier Jack Lang 
had produced a new wave of middle-class insecurity about militant 
unionism and communism, although in fact the unions were gravely 
weakened by mass unemployment and the CPA was small, weak and 
divided. Latham introduced a new set of amendments to the Crimes 
Act, empowering him to obtain a declaration from the High Court that 
a "body of persons, incorporated or unincorporated, constituted an 
unlawful association under the existing provisions of the Act 
because it advocated sedition or violent revolution." The Amendments 
also enabled him to compel persons and organisations to answer 
questions and disclose documents, deprived executive members of 
"declared" organisations of the federal franchise, and made members 
of "declared" organisations not born in Australia liable for 
deportation.[20]

The amendments to the Crimes Act were not the only evidence of the 
authoritarian tone of the Lyons government. It banned the 
importation of "seditious" books and newspapers (particularly those 
from or about the Soviet Union), and prevented the transmission of 
Australian-produced communist literature through the mails. It also 
banned the employment of communists (a term often loosely defined) 
in the public service or other areas of government employment, and 
tried to have the editors of communist newspapers prosecuted for 
sedition. Most of these repressive activities were fairly 
amateurish, and the worst ones were rejected by the courts.[21] Few 
outside the CPA believed that Australian governments were capable of 
serious repression. One writer argued that while "British Liberalism 
could not furnish a platform that would win an election in Australia 
today. . . its central tenets are accepted by a majority of 
Australians. We believe in religious freedom, in government by the 
consent of the majority, in equality before the law. The practical 
manifestations of these beliefs may be negative - but let any 
government seriously challenge them!. . . Governments may talk of 
deporting 'agitators,' or of suppressing 'seditious' literature; 
secret societies may bluff and bluster. Everybody knows that neither 
will do anything serious."[22]

But liberal and radicals saw a consistent pattern in Australia's 
tradition of "lazy authoritarianism." One was Brian Fitzpatrick, 
who later wrote that "Commonwealth policies relating to civil 
liberties show a continuity, through all the changes of party 
government. . . It was seldom that parliamentary party battles were 
fought over a democratic principle, or over hurt done an individual 
or group, against democratic principle, by a government." Tracing 
the history of illiberal legislation from 1914, Fitzpatrick noted 
that, "by 1932. . . political offenders had lost rights which had 
been the safeguard of every accused person against abuse by public 
authorities of the overwhelming might of the law. . . [They] no 
longer had the right to know and cross-examine witnesses against 
them; their innocence was no longer assumed until proof of guilt; 
they were not necessarily tried by jury; and the protection of the 
laws of evidence was withheld from them. . . All parties, when in 
power, showed an inclination to regulate. . . Parliamentarians of 
all parties inclined more and more towards a conception of civil 
order which bore a closer likeness to the European police-state of 
Bismarck's pattern, than to the institutions of personal freedom 
which were supposed to be integral to the British system of 
government."[23]

The final straw for many liberal-minded people seems to have been 
the Kisch case of 1934. Egon Kisch was a Czech-born member of the 
German Communist Party in exile and a well-known writer on radical 
and anti-war themes in Europe, though hardly the great writer and 
thinker his Australian admirers sought to portray him as.[24] 
Invited to Australia as a guest of the Movement Against War and 
Fascism (a CPA front), he was denied entry by Attorney-General 
Robert Menzies on the grounds that "The presence of this gentleman 
[is] not needed in a free self-governing country such as Australia, 
which [has] been able to achieve a very high degree of happiness and 
prosperity without the intervention of the subversive views for 
which [he] stands."[25] In November 1934 Kisch literally jumped ship 
in Melbourne, breaking his leg, but was put back on board and then 
arrested in Sydney. He was ordered imprisoned and deported under the 
Immigration Act after failing a dictation test in Scots Gaelic. 
Eventually the High Court ruled the test invalid and Kisch was 
freed. His treatment, and the philistine image it created for 
Australia, provoked protests from many writers and intellectuals who 
did not share his politics, including Walter Murdoch and Professor F 
R Beasley.

Footnotes

[16] F R Beasley, "The censorship and exclusion of ideas," 
Australian Quarterly, 24, 14 December 1934, 20
[17] This account is based on Geoffrey Sawer, Australian Federal 
Politics and Law, Vol  I, 1901-1929, Melbourne 1956, and Vol II, 
1929-49, Melbourne 1963; Stuart Macintyre, The Succeeding Age 1901-
1942, Melbourne 1986, chapters 8 and 13; Don Watson, "Anti-Communism 
in the thirties," Arena, 37, 1975, 40; and (because of the relevance 
of its author), Brian Fitzpatrick, The Australian People 1788-1945, 
Melbourne 1946, chapter 24.
[18] The Argus, Melbourne, 29 January 1926, 11
[19] Latham's second reading speech is at Commonwealth Parliamentary 
Debates, Volume 112, 457. 
[20] Sawer, II, 50
[21] Macintyre, 307
[22] J A McCallum, "Political ideas in Australia," Australian 
Quarterly, No 16, December 1932, 26. I presume that this is John A 
McCallum, in 1932 a history lecturer and Director of the Australian 
Institute of Political Science, and later a Liberal Senator from 
NSW. In a nice irony, McCallum supported the Communist Party 
Dissolution Act of 1951, which was rejected both by the High Court 
and the Australian people at referendum.
[23] Fitzpatrick, 242-3
[24] In fact he claimed not to be a thinker at all. "I don't think. 
Stalin thinks for me," he is recorded as saying, in a splendid 
commentary on communist intellectuals at this time. (Watson, 64) 
[25] Quoted in C M H Clark, A History of Australia, VI, 466