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literature wherein is advocated –
(a) the overthrow by force or violence of the established government of the Commonwealth or of any State or of any other civilised country;
(b) the overthrow by force or violence of all forms of law;
(c) the abolition of organized government;
(d) the assassination of public officials;
(e) the unlawful destruction of property;
(f) wherein a seditious intention is expressed or a seditious enterprise advocated.
This proclamation remained in force until 17 December 1929 when the newly elected Scullin (Labor) government rescinded the 1921 proclamation and replaced it with a new proclamation in which the underlined sections were omitted.[34] In addition, the Minister of Trade and Customs was given the power to allow the importation of otherwise prohibited works. On 28 July 1932 the Lyons (conservative)[35] government rescinded the 1929 proclamation.[36] The 1932 proclamation basically restored the 1921 proclamation, but preserved the Minister's power to permit the importation of otherwise prohibited literature. In 1934, the proclamation was superseded by the Customs (Prohibited Imports) Regulations—Second Schedule—item 14, which was to the same effect as the 1932 proclamation. In 1936, some consideration was given to amending item 14 so that anarchist literature and literature directed against Fascism and Nazism no longer fell within it. Nothing, however, came of this, and the regulation remained in force, substantially unchanged, until 1983 when it was repealed as part of a general overhaul of customs censorship.[37] Under the new Regulation, the only political publications to be barred from Australia were those which promoted, incited or encouraged terrorism.[38]
The effect of the proclamation and the regulations was that prohibited literature was governed by the general rules relating to political imports. Imported literature could therefore be seized by customs officials if they reasonably believed that it was prohibited.[39] Aggrieved importers had to be notified that goods had been seized, but unless they claimed the goods within one month of being notified, the goods were deemed to be condemned.[40] If an importer claimed the goods, the relevant Collector could either take proceedings to have the goods condemned or require the owner to enter an action for the recovery of the goods. If so, the goods were deemed to be condemned unless the claimant entered an action within 4 months.[41] Importation of prohibited literature also made the importer liable to criminal sanctions, it being an offence to import prohibited imports. In the event of offending literature finding its way into Australia, it became a prohibited import and a person in possession of it would be guilty of an offence if aware that it was a prohibited import.
Local productions of prohibited publications were not covered by the customs legislation, but like prohibited foreign publications and indigenous seditious materials, were covered by the general criminal law. The publication of literature advocating a seditious intention or a seditious enterprise would bring those responsible within the Crimes Act 1914 (Cth) ss 24A, 24B and 24D, but not if done in good faith for the purpose of securing intra-constitutional changes (s 24A(2) until 13 December 1960, now s 24F). An organisation which advocated the violent overthrow of Australian or other governments would, under s 30A of the Crimes Act, thereby be an unlawful association, and the printing, publication, sale, or distribution of any publication of the organisation thereby became an offence under s 30F. Some anarchist publications might constitute prohibited imports, notwithstanding that their publication in Australia would not constitute an offence, but in general, the local publication of a work whose importation was prohibited would have constituted an offence under the Crimes Act.
Decisions in relation to particular works were almost invariably made only after Customs officials came across suspect literature. It was rare for anyone outside the Department of Trade and Customs (Customs) to seek to initiate the process of determining whether a particular work was an unlawful prohibition.[42] The only example I have been able to discover of externally initiated inquiries related to publications by the Jehovah's Witnesses. FW Tietuens, President of the St Vincent De Paul Society, Albury, had written to Tom Collins, MHR (Country Party, Hume), complaining about The Golden Age, a virulently anti-Catholic publication. The complaint was referred to Thomas White, the Minister for Trade and Customs,[43] who in turn referred it to his Department, which referred it to the Attorney-General's Department, which in turn decided that the book should be allowed in.[44] There seem to have been no external complaints in relation to particular pieces of Communist literature.[45] Customs was, however, periodically urged by the Investigation Branch to take steps to prevent the importation of literature published by radical organisations.[46]
Customs officials became aware of illegal literature in two circumstances, first where a person was returning to Australia, and second when unaccompanied goods arrived in Australia as mail or freight. If the official suspected that a book was a prohibited import, the official could seize the book and retain it, pending further investigations. Following a decision to seize, the matter would be referred through the Customs hierarchy. A middle-level officer would prepare a report for the state Collector of Customs, the senior Customs official in the relevant state. Suspect literature would normally be forwarded via the Comptroller-General to the Attorney-General's Department for an opinion as to whether it fell within the proclamation or (later) the regulation.[47] In 1933, a decision was made to abandon the practice of referring decisions to Attorney-General's. In October 1933, Edwin Abbott, the Acting Comptroller-General advised his officers that the practice of referring books to the Attorney-General's Department had been abandoned on the grounds that it was unnecessary. The experience of Customs had been that its assessments of potentially seditious works were almost invariably shared by the Attorney-General's Department. Accordingly, Collectors were to decide whether publications fell within the prohibition. Copies were to be kept in case of an appeal to the Minister. Collectors were to advise the Comptroller-General of the names of all publications seized as prohibited imports.[48] Despite this advice, there was at least one case where a book was referred to Attorney-General's in 1934.[49]
In 1935, it was decided that Attorney-General's should once more be consulted before any publication was placed on the banned list. Coleman argues that the decision to cease referring matters to Attorney-General's was prompted by disagreements between the two departments, with Attorney-General's being considerably more liberal than Customs.[50] This seems questionable. In relation to the politically controversial decision to continue the exclusion of the English publication, Labour Monthly, from Australia in 1928, the Comptroller was sympathetic to its being admitted, but Sir Robert Garran, Secretary of the Attorney-General's Department argued for its continued exclusion.[51] Files for the period 1932–33 disclose few examples of serious disagreement between the two departments, and a 1935 review of publications banned by Customs during its period of unsupervised decision-making concluded that 57 out of 60 of the relevant publications were properly banned.[52] There is, moreover, evidence that even after Attorney-General's was once more involved in the process, its attitude was less liberal than some of the more liberal Customs officers. However, the restoration of review of censorship decisions by Attorney-General's had been sought by opponents of censorship, and was regarded by them as a victory for the anti-censorship cause.[53]
Prior to 1935, Ministers were not usually involved in the process.[54] However, there was a right of appeal to the Minister in relation to a decision that a book was a prohibited import[55] and the Minister might be asked to exercise his discretion in cases where people wished to import otherwise prohibited publications for legitimate purposes. There was also statutory provision for appeals to a court against a decision that an import was prohibited, but this was never used in relation to prohibited literature. The stakes did not warrant the risk and the cost. As political censorship became more controversial, Ministers and indeed Cabinet, sometimes became involved in the process. The anti-censorship campaigner, W Macmahon Ball, told Menzies' biographer that after he had complained to Menzies about the bans on several works, Menzies had immediately taken steps to 'un-ban' them.[56] In 1936, Cabinet decided to admit the Information Bulletin of the Young Communist International, notwithstanding an assessment by Sir George Knowles, Solicitor-General and Secretary of the Attorney-General's Department, that it was a prohibited import.[57] In 1937, Cabinet considered how to deal with the Jehovah's Witnesses publication, The Golden Age.[58]
Once a publication was assessed as being a prohibited import, it was normally added to a list. Listing did not affect the legal status of a publication. The purpose was to guide officials in the event of a subsequent attempt to import the book. Officials were also circularised in relation to publications that were removed from the banned list. Initially, it had been government policy to keep the list a secret, lest disclosure of banned titles give the works undue publicity.[59] Under the Bruce-Page government, Ministers had been willing to make the list available—at least to parliamentarians.[60] Under the Lyons government, the contents of the lists once more became a jealously guarded secret. Even within the administration, details about prohibited publications could not always be tracked down. Collectors were not always sure which books had been banned by other Collectors. Even the Investigation Branch had trouble getting access to an authoritative list.[61] Importers were apparently allowed access to the list, but the government was adamant that the contents of the list should not be disclosed to the wider public.[62] Indeed, while White was willing to supply MPs with a list of books banned as obscene or blasphemous, he was not willing to supply them with a list of publications banned as seditious.[63] As late as 1936, White objected to a suggestion from G Fitzpatrick (representing the Sydney Workers' Educational Association) that a list of banned books be tabled at the start of each Parliamentary session:
That, in my opinion, would be distinctly unwise because it is recognised in America that what is called a 'banned book racket' is worked, and whilst I would not use those terms as applying here, yet definitely the very mention of a book being banned and the press giving it great publicity gives it an advertisement very often out of all proportion to its worth in literature. That is if it were literature, and if it were propaganda obviously the purpose of the prohibition would be lost by the fact that there would be a surreptitious obtaining of such publications...[64]
The wording of the 1921 proclamation meant that, at law, a publication acquired the status of prohibited import by virtue of its satisfying one or more of the prescribed criteria. It was not a status acquired by virtue of the exercise of official discretion. In practice, however, the process of determining whether publications were prohibited involved the exercise of judgment, and therefore, a form of de facto discretion. Moreover, whatever the legal effect of the prohibition, its operation was restricted to communist literature. The prohibition was clearly capable of encompassing virulently anti-semitic literature (as seditious), and it would have covered any fascist literature that directly or indirectly advocated the violent overthrow of established governments. Yet there is no evidence that the government even contemplated banning any Nazi or Fascist literature. Consideration was given to whether the prohibition could encompass the literature of the Jehovah's Witnesses, and some of the publications of the Industrial Workers of the World appear to have been prohibited.[65] But, in effect, the prohibition was interpreted to extend to communist literature and only to communist literature.
From 1929, there was an express ministerial discretion to permit the importation of what would otherwise have constituted prohibited literature. The exercise of this discretion was the subject of a succession of policies. In December 1929, James Fenton, the then Minister for Trade and Customs in the Scullin government,[66] stated that in the exercise of his discretion, he would admit (a) all literature in a foreign language; (b) all literature printed in Great Britain and allowed to circulate freely therein; and (c) all literature printed in English-speaking dominions. Literature printed in English elsewhere was to be submitted to him.[67] Quantitatively, this represented a major concession. Foreign language publications represented about a third of all publications banned between 1921–29. British publications represented about half the prohibited books. The effect of the policy was therefore to remove about 80% of all prohibited titles from the ban. In effect, the only publications left for individual evaluation were those published in the United States and the Soviet Union.[68] Moreover, this liberal policy was itself liberally administered. No additions were made to the banned list, and all prohibitions under the Seditious Literature proclamation were withdrawn.[69] Even the Lyons government was initially prepared to take a relatively liberal approach to decisions in relation to imported literature. Shortly after the proclamation of 1932, the Department prepared a memorandum, giving guidance in relation to how the proclamation was to be administered. Importantly, it directed that as a general rule, no objection was to be taken to (a) literature in a foreign language; and (b) literature published in Great Britain or the dominions and allowed to circulate freely therein.[70] This policy was largely abandoned once White became Minister for Trade and Customs.[71] In the years that followed, there were to be a considerable number of cases where foreign literature and literature published and circulating in Britain and the dominions was excluded.[72]
By 1935, however, a vigorous anti-censorship campaign was beginning to concern the government.[73] In late 1935, White indicated that he would be prepared to make some concessions. He had made little use of his discretion to permit importation, interpreting it as an escape clause whereby 'bona fide students of history, politics, economics etc' might be permitted to import otherwise relevant literature which might be relevant to their studies. Until 1935, such consent appears to have been given sparingly.[74] In September 1935, however, White announced that 'he would suggest to the Ministry that a limited number of political books should be made available to "genuine students" and "others who would not be affected injuriously by such works"'.[75]
This was not enough to appease the anti-censorship campaigners, and in 1935–36, the government explored the possibility of further change. The matter was considered by Cabinet in February 1936. In a submission to Cabinet, White listed four options:
1. Extend the scope of the present [Censorship] Board to cover seditious literature
2. Modify the restrictions to:
(a) 'allow unrestricted importation of literature of the class in question, as was done during the term of the Scullin government.'
(b) allow unrestricted importation of such literature as is printed in Britain and the dominions and allowed to circulate there
3. 'Allow entry to bona fide students and educational institutions and study circles of present prohibited literature. (This would be difficult to administer but may ease the present pressure regarding political works)'.
4. Make no changes.
His preference was option 1 and, failing that, option 4.[76] He advised Cabinet not to worry too much about the campaign by the Book Censorship Abolition League:
The agitation for removal has received fairly strong support from certain quarters but there is little doubt that it will gradually die down when it is known that the matter has been considered by Cabinet and Cabinet's decision on the matter is announced.[77]
On 27 February, Cabinet decided that 'no change be made in the present system as the Attorney-General's Department indicate that a lenient view of revolutionary matter not affecting Australia or the British Empire is being taken.'[78] Agitation did not die down, and Attorney-General's argued that the Regulation should be amended so as to narrow the range of publications falling within the statutory prohibition. In March 1936, Knowles had suggested that the Regulation be re-written so as to limit its operation to a narrower body of literature:
The type of literature now issued and subsidized by the International is mainly directed against Fascism and Hitlerism. Such literature can do little harm in the Commonwealth but it falls within the terms of the prohibition and is prohibited. Paragraph (a) of Item 14 might be limited to literature advocating the overthrow of the government of the Commonwealth or of any other part of the King's Dominions.
Paragraphs (b), (c) and (d) refer to anarchistic literature and paragraph (e) to IWW [Industrial Workers of the World] literature. Both these political theories have been superseded by Communism and no undue risk would, I think, be run if the prohibition against anarchistic literature was lifted. IWWism may again be advocated and I suggest that paragraph (e) be retained.
He suggested that the prohibition on the importation of seditious literature be retained. Nothing came of Knowles' suggestion.[79] Subsequently, on 1 May, he recommended that if the Regulation was not changed, the Minister might nonetheless consent to the importation of literature relating to civilised countries, and concluded with the suggestion that
[i]f the practice of submitting alleged seditious literature to the Attorney-General's Department for advice is to be continued, the Secretary suggests that books advocating the overthrow of the Commonwealth or any State be prohibited, but those relating to other countries be admitted by the Minister.[80]
He was to get his way. The new policy was foreshadowed on 8 May 1936 when the civil libertarian MHR, Edward Holloway, asked the Prime Minister whether he would receive a deputation from the Censorship of Books Prohibition League (sic), and if not, whether he would make a statement to the House on the subject. Lyons, the Prime Minister, stated that he hoped to make an early announcement on the subject, and that he hoped this would make the deputation unnecessary.[81] His answer was given two weeks later, not as a statement to the House, but in the form of an answer to a question on notice from Curtin, the leader of the Opposition. It was circulated on the last day of the autumn session. Lyons stated that after consideration of the issues, the government had decided not to repeal the Regulation. However he pointed out that the Minister had the power to consent to the importation of otherwise prohibited publications.
[T]he Minister has, and will have, the complete approval of the Government in interpreting the paragraphs in a spirit consonant with the established British principle of the freedom of the press. But that principle cannot be construed to embrace the advocacy of assassination, of the overthrow by violence of all forms of law, or of the wilful destruction of property.[82]
On its face, this statement did not necessarily herald a major change in policy. The Minister had shown no sign of wanting to interpret his power to consent in a manner consonant with established British principles. There was nothing in his past record to suggest that he was a closet civil libertarian restrained only by authoritarian cabinet colleagues.[83] The statement did not say that he would be interpreting the Regulation in a more liberal manner, only that he would have the approval of Cabinet if he did. And since the Minister seemed to have believed that communist propaganda as such could be regarded as advocating violent revolution, any hopes raised by the penultimate sentence might have been dashed by the final sentence.
But the statement could be read in another way. The reference to 'has and will have', coupled with the lack of reference to 'has had' could be taken as tacit recognition that the Regulation had not been interpreted in a liberal spirit, and perhaps ought to have been. The statement that a liberal interpretation would have Cabinet's approval could be taken as implying by virtue of what it omitted that an illiberal interpretation would not. The grudging recognition of the merits of a more liberal interpretation can be understood both in terms of cabinet, party and electoral considerations. Humiliating colleagues is always unwise, and governments which bow to pressure tend to be blamed for taking so long to do so, rather than praised for having the courage to admit they've been wrong. As a political statement, therefore, Lyons' answer was far more encouraging. But much would depend on how it was interpreted, and as we shall see, the Attorney-General's Department interpreted it as meaning the policy foreshadowed in the 1 May minute would apply.
The impact of both law and policy depend on how they are interpreted and put into operation. Prior to the 1936 policy change, both Customs and Attorney-General's tended to err in the direction of prohibition. So long as a piece of literature contained passages that could be construed as clearly advocating the violent overthrow of any established government, it was classed as a prohibited import. Advocacy of revolution per se sometimes seems to have been regarded as sufficient to bring a work within the prohibition, but suggestions to this effect seem to reflect a mixture of loose use of language, and contexts in which it was unnecessary to make express reference to the requirement that the revolution be violent. Justifications given for the banning of books frequently implied a superadded requirement that the revolution be violent.[84] Moreover there is at least one case in which Knowles accepted that it had to be clear that the book did so. In assessing Bradley's Trade Unionism in India, Knowles concluded that it 'advocates revolution but the language used is not sufficiently definite as to make it clear that revolution by violence is intended'. It was not therefore a prohibited publication.[85]
A single passage in a lengthy book or pamphlet book could, however, suffice. Single revolutionary passages in The Agent Provocateur in the Labour Movement, Breaking Through and The Second Five Year Plan were considered by Knowles as enough to warrant the banning of these works.[86] The fact that a work was historical[87] or fictional[88] did not mean that it could not be seditious. Horace Power (a Victorian Customs Official who was relatively liberal in censorship matters) classed Pollitt's Dynamite in the Dock as seditious on the basis of some of the six reasons Pollitt gave for joining the Communist Party, on the third last page of an otherwise unexceptionable work.[89]
As one might expect, the position became more difficult where the publication in question did not expressly call for revolution or for the violent overthrow of an established government. Knowles seems to have considered that a book could fall foul of the Regulation, notwithstanding that its message was implicit rather than explicit.[90] Sometimes, books are recommended for prohibition where the message is only barely implicit. For instance, Patrick J Tipping, a Principal Legal Assistant in the Attorney-General's Department, considered that Customs was justified in having prohibited Religion and the Five Year Plan:
This pamphlet does not advocate world revolution, but deals with the activities of the Union of Militant Atheists. If it is an appeal to the people of Russia only, why is it printed in Moscow in English? The inference is that Russia is endeavouring to stamp out religion as an obstacle to Communism and that other countries should do likewise.
In the same report, he wrote, apropos Literature and the Peoples of the USSR:
[This] raises difficulties. From the general tone of the work it appears to be subtle propaganda for consumption by the writers of the world. In the Soviet all writers are happy, if other writers want to be happy, they should work for the revolution. I think its importation should be prohibited.[91]
Such analyses would effectively mean that all Soviet propaganda would be prohibited under the Regulation. If these two works are prohibited on grounds as flimsy as this, it is hard to imagine that any work of propaganda could pass the test. Indeed it is hard to imagine how any work published in the Soviet Union could qualify for admission.
Perhaps these were lapses: they come at the end of a report which dealt with 60 suspect publications, a task calculated both to addle the brain and engender a passionate commitment to the suppression of all forms of communist propaganda. It is clear that most borderline publications were handled more carefully, especially when considered by Knowles himself.[92] Even in 1935, Knowles considered that Lenin's Complete Works could be admitted '[o]n the grounds that these volumes are not designed directly to incite to illegal acts with a revolutionary purpose'.[93] By this test, the two Soviet pamphlets would have qualified for admission.
Even prior to the liberalisation of 1936, the rigours of the prohibition were tempered by the drawing of a distinction between theoretical and propagandist works, between less and more accessible works, and between more and less expensive works. From late 1935, the distinction between theoretical and propagandist works began to be more generously applied. Even in the 1920s, the Marxist classics were generally allowed into the country. The Communist Manifesto was prohibited, but otherwise, none of Marx's works appears on the Victorian Investigation Branch lists.[94] Lenin's Imperialism and State and Revolution were prohibited, but otherwise, there were no bans on Lenin's works. After 1933, a number of Lenin's works were once more banned, as, briefly, was the Communist Manifesto.[95] However, from 1935, bans on Lenin's works were gradually lifted. The basis for the distinction between theory and practice is questionable (and decidedly un-communist), but its practical effect was to mitigate the rigours of the censorship system.[96] By 1940, by which time the authorities were becoming increasingly less sympathetic towards communism, Lenin's Collected Works could be dismissed as 'of interest only to students of political theories'. Even if they technically fell within the embargo, this was not a case for applying the prohibition.[97]
The distinction between theoretical and other works overlaps with another distinction: that between works that were relatively accessible to working class readers and those which weren't. One dimension to this was incomprehensibility. Acting Attorney-General Brennan appears to have considered this to be a relevant criterion. In advising on Ralph Fox's Communism, he wrote:
In its early part this book merely generalises Karl Marx and it would be much above the head of the average reader. But in the last two chapters it advocates blatantly all those things which we have made it illegal for societies or individuals to advocate. I do not see why Mr. Fox should have the assistance of the agencies of our social system—our post offices and or railways—to assist him in the spread of his pernicious teaching.[98]
Evidently if the whole of the book had been above the heads of average readers, it could have been allowed in. A second aspect of accessibility was cost. In 1935 White acknowledged that there was discrimination against cheap paper editions, arguing in defence that people could nonetheless have access to such works in public libraries.[99] He also considered that it was a relevant distinction that the publication was a book rather than a pamphlet or newspaper. The former might be regarded more sympathetically than the latter.[100] Thus, while pamphlets by Lenin were generally prohibited in 1935, his Complete Works had been allowed in, pursuant to a memorandum from the Attorney-General's Department. However, the status of his Selected Works was not clarified until the following year.[101] Also suggestive is the fact that the files frequently reported the cost of particular publications. Had economic accessibility been relevant to decision-making, a vital piece of information was available for the decision-maker. However, the files do not appear to disclose examples of cases where the cost of a particular edition was a matter expressly taken into account in relation to prohibition decisions, and there are even cases where books received less favourable treatment than pamphlets embodying particular chapters.[102]
Following Lyons' 1936 announcement, the Regulation was given a correspondingly more liberal operation, albeit somewhat hesitantly at first. Customs advised Attorney-General's that '[i]n view of your advice this Department does not intend to reopen the question of the removal of ... publications from the prohibited list unless a specific request is received in connection with any particular book.'[103] However, Attorney-General's applied a relatively liberal approach in relation to the advice given to the Minister. Publications were evaluated according to a two-stage process. First, they were examined in relation to whether they fell within the Regulation. If they did, consideration was given to whether their importation should nonetheless be permitted. In assessing whether publications fell within the Regulation, Attorney-General's continued to give the criteria a broad operation.[104] In determining whether publications should nonetheless be allowed in, it generally favoured admission so long as the publication did not 'directly advocate the overthrow by force or violence of the established government of the Commonwealth or of any State of the Commonwealth'.[105] It recommended the lifting of bans on publications that were allowed to circulate freely in the United Kingdom.[106] These criteria were initially treated as no more than guidelines. In June 1936, Knowles recommended the prohibition of publications that did no more than attack the King and that urged resistance to British rule in India. He also recommended the prohibition of several revolutionary song-books that did not expressly refer to either Australia or Britain, but which gloried in the hanging of members of former ruling classes from lamp-posts. By 1937, however, solicitude for Britain seems to have been qualified by a sense that if Britain did not see fit to ban anti-British literature, there was no reason why Australia should.
Gradually, periodicals and books were removed from the list. International Literature, International Press Correspondence, Moscow Daily News and Labor Defender were removed in 1936.[107] An edition of the Communist International had been recommended for the list by Knowles in June 1936, but by 1937, the journal had been removed. New Masses had also been removed by 1937.[108] Previously banned books to be removed included British Imperialism in India (grudgingly), three works by Fox, Class Struggle in Britain, Colonial Policy of British Imperialism and Communism,[109] Hutt's Condition of the Working Class in Britain,[110] Martin's Annual,[111] The Second Five Year Plan (published by the British Communist Party)[112] and Tretiakov's Roar China.[113] The ban was also removed on several works of political fiction. Floridsdorf, a technically seditious play was considered worthy of importation under the 1936 guidelines. By 1937, it was being performed in Australia.[114] The bans on Marschwitza's Storm over the Ruhr and Page's The Gathering Storm were lifted in 1937.[115]
In 1936, there had nonetheless been several additions to the banned list.[116] Thereafter there appear to have been none, and by 1939, political literature seems to have been allowed, almost unhindered, into Australia. The last comprehensive list of banned works appears to have been prepared in 1937. It included 88 publications, a sharp reduction from the 200[117] or so works which had once been on the list and in a 1943 memo to Bonney, the then Chief Publicity Censor, Abbott, the Acting Comptroller-General explained that
very few of the publications on the ... list would, if reviewed on the basis of the [post–1936 policy], be regarded as coming within the scope of the prohibition. They were dealt with prior to the operation of the present policy and it was decided not to disturb the decisions already reached in regard thereto.[118]
After 1937, only a handful of works were removed. The Left Song Book was allowed in by February 1941. And while the list remained, nothing was added until Stalin's Foundations of Leninism was added again during the war, only to be removed a couple of years later.[119] Customs played little role in the war-time censorship of imported literature, the censorship of imported literature being largely a matter for Postal and Telegraph Censorship.[120] Even during the years of the Cold War, the government appears to have made no use of its customs powers. In 1950, Customs raised with Attorney-General's the question of whether World Trade Union Movement and In Defence of Peace were seditious.[121] In each case, Attorney-General's ruled that they were not. Thereafter, there appear to have been no further such inquiries.
The importance of lower level decision-makers in the banning process is two-fold. First, books found their way to the banned list only because some lower level official decided that the book was of a character such that it was a possible candidate for the prohibited list. Second, in practice, decisions by lower level administrators were almost invariably upheld by more senior administrators. Officials were rarely found to have erred by labelling literature as prohibited when it should have been treated as harmless.
There is some evidence that some officials were more liberal than others. In Victoria, Power, the de facto decision-maker, appears to have taken a relatively tolerant attitude towards works in which advocacy of revolution was at most implicit. Whereas Power treated Radek's The Architect of Socialist Society as doing nothing worse than setting out Lenin's place in the story of Bolshevik achievements, Charles Brossois, a clerk in the Investigating Section in New South Wales, recommended that the book be treated as a prohibited import.[122] The two administrators also differed in their assessment of Stalin's Report of the Work of the Central Committee of the CPSU and in relation to The League of Militant Atheists and its Work.[123] Stalin's Leninism was admitted to Melbourne, but not to Fremantle.[124] Pyanitsky's The Communist Parties in the Fight for the Masses was described as a prohibited import by Clifton Carne, Clerk in Charge, Western Australia, but was allowed into Victoria on Power's recommendation.[125] Stalin, Molotov and Litvinov's Our Foreign Policy was reported as prohibited by Carne to the Western Australian Collector, but was considered unobjectionable in Victoria, and later by Acting Attorney-General Brennan.[126] International Literature also evoked a variety of responses. In part, this seems to have been a result of nothing more sinister than a steady softening of the line taken by the journal, but even particular editions evoked different responses. Copies regarded in Sydney as seditious and by Terence Simonds, Chief Clerk, Central Administration, as not particularly objectionable, were being allowed in at Melbourne. In 1935, Power was favouring admission, while Knowles argued that the journal fell within the prohibition. Their assessments highlight the problem of operationalising the statutory test. Power seems to have been concerned with the likely effect of the journal:
I have read this copy [Jan 35] and the three preceding numbers carefully and am of the opinion that the policy of the directorate of the magazine has changed considerably in the past twelve months. Earlier copies contained articles and cartoons that were rabidly revolutionary but recent issues have been free from these objectionable features. Exception might, perhaps, be taken to some of the cartoons but these have little or no application to conditions in Australia and their significance is obscured if not lost to local readers.[127]
Knowles on the other hand seems to have been more concerned with the publishers' intentions, and seems to have been more inclined to act on the basis that one could assume that propaganda would achieve the publisher's intentions:
[I]t is stated that 'International Literature' should prove a great stimulus in the growth of revolutionary art and literature. It is also described as an organ of revolutionary militant thought, and an analysis of the cultural life of the land of the proletarian dictatorship.
From these statements, it would appear that the object of the periodical is to stimulate the growth of revolutionary militant thought in the direction of establishing a proletarian dictatorship.[128]
T C Brennan, Acting Attorney-General (and acerbic anti-Communist), seems to have preferred Power's analysis:
[A]lthough I think it is intended to serve as communistic propaganda, I cannot point to anything therein which would bring it within the terms of the Regulations. It appears, however, to be published periodically, and it may be that other numbers offend against the Regulations.[129]
By June 1936, R B Curd, the Queensland Collector, had concluded that the journal had ceased to be seditious, but while Knowles was prepared to recommend that it be admitted under the Minister's discretion, he was not prepared to resile from his view that the publication was nonetheless seditious.[130] Somewhat similar arguments surrounded the Moscow News. Harold Jones, Director of the Commonwealth Investigation Branch, had suggested—possibly with tongue in cheek—that the paper should be allowed in so that Australian workers could read about the appalling work practices in force in the Soviet Union.[131] But despite this eminently sensible argument, the paper had been placed on the prohibited list by 1934. In 1935, the Western Australian Collector detained a copy, and the importer protested to the Minister. In a memorandum for the Comptroller-General, Simonds, Chief Clerk advised that the consignment should be released.
It is only to be expected that a daily newspaper which is printed in Russia will contain a good deal of matter which would serve as communist propaganda. The copy of the 'Moscow Daily News' which is herewith is no doubt, strictly speaking, a prohibited import within the meaning of the regulation, but at the same time there is nothing seriously objectionable about it.
I understand that it is not the general practice to scrutinize too closely daily newspapers printed in foreign countries and this is probably the wisest policy to follow. Strictly speaking the Department has no right to prohibit the importation of a newspaper because one particular edition is found to contravene the Regulations and each edition should be dealt with on its merits.
He suggested that the Attorney-General advise on Moscow Daily News.[132] On 18 June 35, Collectors were advised that no objection need be taken to the importation of Moscow News. On 16 June, however, Attorney-General's advised that:
In my opinion, the publication advocates world revolution along the lines of the Russian revolution in 1917, and comes within the class of literature prohibited by Item 14 of the Second Schedule of the Customs (Prohibited Imports) Regulations. [133]
The recommendation that delivery not be allowed was approved by the Minister on 11 August 1935 and Collectors were advised accordingly.[134] Stalin et al's Socialism Victorious gave rise to similar divisions of opinion. Western Australia excluded it. Victoria allowed it in. New South Wales seems to have prohibited it, although the Sydney Municipal Library managed to get hold of a copy. The book was referred to Knowles who advised that 'I have perused the publication and, in my opinion, it advocates revolution by violence, and, therefore, comes within the terms of item 14.' He added that he had retained the publication for the purposes of litigation involving the Friends of the Soviet Union and the Communist Party and would return it later.[135] Following representations from the Workers' Educational Association, Simonds sought to have the matter reopened,[136] and following the Prime Minister's announcement of a relaxed censorship policy, Knowles reported again—unfavourably.
The Prime Minister stated that the regulation would be interpreted 'in a spirit consonant with the established principle of the freedom of the press'. 'Freedom of the press' does not however imply 'a despotic sovereignty to do every sort of wrong without the slightest accountability to private or public justice'. Any man, however, may fearlessly advance any new doctrines provided he does so with proper respect to the religion and government of the country. The liberty of the press depends on a negative foundation—there are no restraints on publication and no freedom from censure for publishing illegal matter.
He advised that the work was unobjectionable except for a section by Manuilsky: The Revolutionary Crisis is Maturing. This was an instigation to force and violence and could not be separated from the rest of the book. The book was therefore a prohibited import.[137]
These differences should be kept in perspective. There were publications that Power regarded as seditious,[138] and there were publications that Brossois and Knowles regarded as unproblematic.[139] But the differences of opinion highlight the problems associated with interpreting the legislation, and also act as a corrective to interpretations which see the history of censorship as a struggle between benighted Customs officials and an enlightened Attorney-General's Department.
Enforcement practices also varied according to who was importing the work in question. Particular attention was paid to literature sent to particular addressees (and the Investigation Branch paid particular attention to people to whom suspect literature was sent). [140] When Communists returned from overseas, their luggage was normally searched and carefully examined. Even relatively innocuous works were sometimes seized. When William McKissock returned to Australia in 1934, after a visit to the Soviet Union, officials seized all the books in his possession. These included a number of school textbooks that were found to be completely harmless.[141] Several volumes of revolutionary songs were taken from the luggage of J Harris when he returned to Adelaide in 1935.[142]
The typical sanction involved the seizure of suspect literature, usually followed by its confiscation or destruction. Sometimes confiscated publications would find their way to departmental bookshelves. Sometimes they were destroyed. One was retained by Attorney-General's for use in some forthcoming litigation. A 1934 report in the Melbourne Herald suggested that prohibited books were being burned by Customs, without their importers being given a chance to return the works to the publishers but the report gives only limited particulars, and is misinformed in at least one respect.[143]
In fact the position seems to have been more complex. On 6 September 1934, the Comptroller-General announced a toughening of policy so that 'when it is decided that a book is a prohibited import, it is inconsistent with the Act to allow delivery, even to return to senders, unless the circumstances are very exceptional'.[144] Shortly afterwards, a Melbourne bookseller asked that it be allowed to return copies of Fox's Colonial Policy of British Imperialism which it had imported, not realising that the book was a prohibited import. The Victorian Collector of Customs concluded that the new policy meant that the book could not be returned, but Abbott, the Comptroller-General advised that the new policy was intended to apply only to indecent publications.[145] That this was indeed the policy was reiterated by the Minister, Colonel TH White, during the 1935 censorship debate.[146] Maurice Blackburn[147] took issue with this assertion, arguing that under the Act, prohibited publications were forfeited to the Crown. White then qualified his statement, explaining that where prohibited books were brought in surreptitiously they would be forfeited, just as other smuggled goods were.
Where the importer may not have been aware that the book was a prohibited publication, however, the importer would be given a chance to return the book.[148] This had been and continued to be the case. Copies of Fox's Communism were returned to the publisher at the request of Rawson's bookshop, after a decision that it was a prohibited import.[149] Sometimes, the process could prove quite complicated. After the Workers' Educational Association had unsuccessfully urged that it be allowed to import Socialism Victorious it asked that it at least be allowed to send the consignment back to source. Customs agreed, provided that a representative attended at its offices, armed with sufficient string and paper to pack the books. Under supervision, he would then be allowed to take them to the Post Office to post them back. These terms were acceptable and the operation appears to have proceeded smoothly.[150]
The file answers one of the obvious questions to emerge from White's statement: what was to stop an importer from taking possession of the book and forgetting to send it back? However, while bookshops were aware that they could ask that prohibited publications could be returned, it is unlikely that people who sought to import publications for their own use were aware of this option. Customs certainly does not seem to have told them, and those who corresponded with Customs (such as Stan Moran[151] and William McKissock) did not canvass this as an option.
Once a prohibited import had entered Australia, it was normally safe from seizure, simply because those who might be inclined to seize it would not be aware either of its existence or whereabouts. In 1936, however, Customs learned that the Sydney Municipal Library possessed a copy of Socialism Victorious, and officials descended on the library and seized the offending book. The City Librarian protested, arguing that the book was useful for students, and that since the importation of Lenin's works was permitted, students should be allowed access to this particular work too. Inquiries revealed that Lenin's collected works had indeed been permitted, but since Socialism Victorious had been prohibited on the basis of firm advice from Knowles, Customs was disinclined to accept that the library should be entitled to make out a special case on the basis of the book's possible interest to disinterested students. It was, however, willing to return the seized copy. The book had been imported at a time when its legal status was unclear, and since there were probably a number of other copies circulating in Australia, it would be unfair to confiscate it.[152] This, however, is the only case I have been able to find of an illegal publication being seized after having been allowed into Australia.
In cases where seized works were subsequently found to be innocuous, they were sometimes returned expeditiously. For example, the Soviet school textbooks taken from McKissock on his arrival in Australia were quickly returned. Sometimes, however, importers recovered the publications in question only after a long delay. Within the Department of Trade and Customs, matters normally moved with reasonable speed, but once matters were referred to the Attorney-General's Department, months and sometimes years could elapse without anything happening. White's 1936 advice to Cabinet acknowledged this problem:
Importers desire prompt decisions regarding books detained and the officers of the Attorney-General's Department are so heavily burdened with other duties, particularly during Parliamentary Sessions, that it would be unreasonable to expect work of this nature [assessing imported literature] to get precedence over parliamentary work.[153]
And it didn't. Where (as was often the case) reminder letters were sent at regular intervals, these were often left unanswered. Hubert Lazzarini (ALP, Werriwa) raised in Parliament the case of one Louden who sought to import a 3 volume Life of Lenin. Volumes I and III duly arrived, but volume II was detained. Customs referred him to the Postmaster-General's Department, but eventually it turned out that the volume was in Customs' custody and had been for 7 months. The saga had a happy ending: on the advice of Attorney-General's the volume was released.[154] It took 6 months to process Crisis on Clydesdale.[155] It took more than a year for a decision to be made that Beauchamp's British Imperialism in India should be removed from the banned list, following a request by the consignee.[156] Wolf's Floridsdorf had been seized on 31 July 1935, but a final decision in relation to it does not appear to have been made until 1937.[157] Books were seized from Stan Moran in May 1935, but it was not until July the following year that a letter was written informing him of their fate, and it was not until November 20 that he received it.[158]
In one respect, however, the administration of political censorship was relatively liberal. I have been unable to find any examples of people being prosecuted for importing prohibited literature and it is hard to imagine any such prosecution escaping the attention of the anti-censorship lobbyists. Indeed, I have been unable to find a case where prosecution was even contemplated. This apparent liberalism probably reflects expedience rather than principle. The Commonwealth had good reasons for avoiding prosecutions. Proof of the requisite intent would be difficult, since the importer would normally not be in a position to know the contents of the relevant publication at the time of importation. (In this respect, the secrecy surrounding the list of prohibited works could work to the advantage of the importer.) Moreover, prosecution would place the Commonwealth in the position of having to defend its assessment of the works in question, and of having to demonstrate beyond reasonable doubt that the work in question was seditious. Given the relaxed standards that characterised many of the Commonwealth's decisions, the Commonwealth would sometimes have been hard-pressed to satisfy this burden of proof. As is so often the case in the area of political repression, the price paid for the ability to impose low level sanctions is abstention from attempts to mobilise the legal system in an endeavour to ensure the imposition of more severe ones.
In deciding whether to ban publications, the government appears generally to have acted within the law. The test under the proclamation and the regulation was whether, within a publication, a proscribed objective was advocated, rather than the more liberal test of whether the publication could be said to advocate a proscribed goal. That said, there appear to have been some publications that were banned but did not fall within a generously construed version of the regulation. Some works were banned, notwithstanding that the advocacy was, at best, implicit, and capable of being inferred only on the basis of highly problematic assumptions. It was also clear that there were cases where the government was willing to ban publications without even inquiring into whether they fell foul of the prohibition. In the 1920s, the prohibited list included blanket bans on all propaganda and literature published by a number of communist bodies.[159] Early in the 1930s, the government had become aware of the problems posed by such bans. While one issue of a given periodical might be seditious, it would not necessarily follow that others would be.
One response to this problem would be to subject each edition of a periodical to supervision so that a decision could be made as to whether it constituted a prohibited import. The difficulty with this procedure lay in the fact that this would be a resource-consuming exercise, especially in relation to foreign language periodicals. A second response would be to amend the legislation so as to enable particular periodicals to be declared to be illegal imports. A third solution was simply to add suspect periodicals to the list of banned publications and to exclude them until an occasion arose for allowing a particular edition into Australia. This was the solution that the government adopted. It simplified administration, but it did so at the price of legality. It meant that publications were being seized notwithstanding that they were not illegal imports, and without any inquiry being made into this question. It was, however, a low risk strategy and one that the government felt free to pursue until 1936.[160]
Sanctions were sometimes administered in an arguably extra-legal manner. Some seizures of literature involved blanket seizures and included works that could not reasonably be suspected of being prohibited. Moreover even where books were found not to be prohibited imports, they were not necessarily restored or returned to their consignees. In May 1936, Stan Moran wrote to the Minister asking for a review of the decision to seize British Imperialism in India, his request being based on the more liberal policy that Lyons had recently foreshadowed. His request was considered, but he never received his book. The file simply includes a note dated 15 April 1937 to the effect that 'the copy seized from Mr Moran was taken in January 1936. In view of the lapse of time it does not seem desirable to open the matter unless it is again raised.' The copy subsequently went into the Department's bookroom.[161] The Department displayed a similarly casual attitude to property rights in its 1935–36 dealings with McKissock. On 9 December 1935, the Department notified McKissock that on 23 November it had seized a consignment of publications. Four days later, McKissock, who had had previous dealings with the Department, wrote asking which publications were considered seditious; by whom were they condemned; and whether it was possible to know the exact paragraphs which were classed as being seditious. 'I also wish to "enter an action" against the Collector for the recovery of my goods, if this letter is not sufficient would you advise of procedure'.[162] Abbott, the Comptroller-General, sought advice from the Attorney-General's Department, observing that:
In the event of the particular issues being considered to be prohibited it is assumed that it would be undesirable to comply with the importer's request for an indication of the particular matter in the publications which is regarded as objectionable.[163]
The Department did, however, give McKissock's request serious consideration and, while it decided that the ban on Stalin's The October Revolution should stand, it also decided to recommend to the Minister that the Moscow Daily News should at last be removed from the list. Simonds advised therefore that the Moscow Daily News be released, that no particulars be provided, and that 'if Mr McKissock intends to take action against the Collector to recover his goods and does not know how to proceed in the matter it is suggested that he consult a solicitor on the matter.'[164] The Minister approved the recommendation. On 24 February 1936, McKissock wrote to the Minister, seeking particulars in relation to The October Revolution and asking that his 12 copies of Moscow Daily News be returned, observing that 'I would also like to point out that owing to the fact that I am in poor circumstances your department must realise the same as I that it is impossible to "take action" against your department.' On 27 February 1936, White asked that publications not on the prohibited list be returned, but it was too late. On 26 February 36, Arthur Wilson (Acting Collector, Victoria) reported that McKissock should be advised that '[a]s no claim in writing was made by you within the prescribed time in regard to the importation in question, the publications together with copies seized from other addresses were duly destroyed on 16th January 1936.'[165] A fortnight later, the Comptroller-General advised Mr McKissock accordingly. The demand for particulars was refused:
My Minister is not prepared to indicate particular paragraphs in the book which are regarded as objectionable. He desires me to say, however, that action to include the book in the prohibited list was taken following on advice relating to it received from the Attorney-General's Department.
There was no expression of regret at the destruction of the newspapers.[166] Worse, it seems clear that McKissock had claimed the publications. He had not done so explicitly, but his statement that he wished to enter an action against the Collector implied such a claim, as indeed did the fact that he had written to ask for his books. His correspondence appears to have been sufficiently unambiguous to constitute notice of a claim (the Act did not require that notice take a particular form), and had been addressed to the correct Collector. If so, Customs was not empowered to destroy the publications until 4 months after the giving of notice that McKissock was required to enter an action for their recovery. Even if McKissock had been given such notice (which would be inconsistent with the Collector's assertion that McKissock had not made a claim), the destruction of the publications clearly took place before 4 months had elapsed.
Up to a point, the rises and falls of peace-time political censorship can be understood in terms of the politics of anti-communism. Censorship flourished under the Bruce-Page government even more than under the post-World War I Hughes government. It was abandoned by the Scullin government. It was revived under Lyons. It can be understood in terms of the loathing which communism aroused among conservatives and in terms of the instrumental and symbolic value of anti-communist measures. Its abandonment under Labor is partly to be explained in terms of Labor's awareness of the possibility that anti-communism could be used to legitimate action against socialists as well as action against communists. But this is only part of the story. For while the Lyons government reintroduced political censorship, it did so gradually, and within five years, it had effectively abandoned it.[167]
The abandonment of political censorship can be explained partly in terms of the changing meaning of communism. By the late 1930s, the threat posed by communism had declined. The economy had at last recovered from the depression, and one lesson that could be drawn from the depression was that even in the face of economic catastrophe, the capitalist social order could survive. Moreover communism itself was changing. The Party's shift from the hyper-sectarianism of the depression years to the greater openness of the 'United Front'[168] period was reflected in its down-playing of revolutionary rhetoric. The Party's acceptance that revolution would require mass consent involved the abandonment of the violent rhetoric that had characterised communist speeches and writing in the early 1930s. One effect of this was that communist literature was less readily classified as seditious, but another was a greater willingness on the part of the government to tolerate communist literature that arguably was seditious. Reciprocal tolerance is not surprising, and one encounters it not only in the area of censorship, but in the reaction of state and local governments to communist meetings and protests.[169] But this analysis goes only some of the way towards an explanation of the decline of political censorship. For anti-communism was not dead, and in some ways the golden age of anti-communism was still to come. Yet while the Cold War years were characterised by a variety of forms of political repression, customs censorship was not among them.
One possible explanation for this trend lies in the different nature of the post-war 'threat'. In pre-war anti-communism, one finds hints of fears of the possible appeals of communism. Post-war anti-communism seems less concerned with the appeals of communist propaganda, and more concerned with the harm the Party might do by virtue of its influence in the union movement, and by virtue of its role as local agent of a foreign power. While these fears were exaggerated, they did at least involve a realistic assessment of communism's lack of mass appeal. And if after thirty years of agitation by the Party, communism had no mass appeal, there was little to be lost in allowing people access to its propaganda.
There are, however, some problems with this analysis. Among the most surprising features of the Australian censorship system was the degree to which a rigorously applied system of customs censorship coexisted with a not particularly onerous system of internal political censorship. In 1932, the Commonwealth banned the postal transmission of communist literature, and it confiscated such communist literature as it found in the mails. Otherwise, it took no steps to prosecute those who printed, published and sold communist publications. It was willing to ban the importation of books which were assessed as seditious, but it made no attempt to use the provisions of the Crimes Act 1914 to prosecute those who produced local editions of those same works for publishing seditious words.[170] It banned the postal transmission of communist literature on the grounds that the CPA was an unlawful association, and if that was the case, it followed that it was an offence to print, publish or sell any communist publication.[171] Yet no-one was prosecuted for this offence.
States made little use of their censorship powers. The ban on productions of Clifford Odets' Till the Day I Die at the request of the German Consul-General stands out as an act of supine appeasement, but it was not seriously enforced,[172] and it is remarkable because it was a rare rather than a routine example of state censorship. In New South Wales, numerous people were prosecuted under a generally worded Domain by-law for selling communist literature, and communists sometimes fell foul of other by-laws when they sought to spread their message. But the states took no steps to arm themselves with the power to ban the printing and distribution of communist literature and did little to stop its dissemination. One explanation for the states' relative liberalism may lie in the degree to which the 'foreignness' of communism represented a leitmotif in anti-communist rhetoric. But there may be more mundane explanations, and one may simply be the political costs associated with attempts to outlaw locally produced literature.
The fact that local editions of prohibited imports could be produced highlights the fact that the system was a porous one. Customs simply lacked the resources to investigate every incoming book, so numerous prohibited imports slipped into the country. Libraries, as we have already seen, included a number of banned publications on their shelves, where they could be read both by scholars and communist autodidacts. Opponents of censorship pointed to the relative ease with which they had been able to lay their hands on prohibited publications.[173]
It is possibly for these reasons that the issue of customs censorship aroused surprisingly little concern in the communist papers. The Workers' Weekly, normally astute to expose the hypocrisy of the liberal-democratic ascendancy, rarely discussed the issue. There is an ungracious reference to the Scullin government's liberalisation of the customs regime.[174] And, once the Book Censorship Abolition League (BCAL) campaign had begun, there were some favourable references to it. But on the whole, customs censorship was treated as if it were one of capitalism's lesser evils. In contrast to the ban on the internal transmission by post of communist literature, the ban on imported literature does not seem to have generated massive campaigns of letter-writing, resolution-passing, and telegram sending. Whereas the Friends of the Soviet Union took the postal ban sufficiently seriously to sue the Commonwealth over it, communist bookshops took no legal action against the Commonwealth over customs censorship. This failure probably reflects the degree to which communists could gain access to prohibited imports if they really wanted to. This in turn meant that the arguments developed in imported publications could be transmitted via the Party media to a broader audience. (Indeed, the bans may have even had the unintended consequence of slightly strengthening the local party's control over what its members and supporters could read.) Insofar as copies of actual works were needed for use in party classes, this need could generally be satisfied thanks to the distinction drawn between scholarly and propagandist works, which meant that many of the Marxist classics were freely allowed in. It is also likely that imported literature was far less important to the Party than either the Party or the government believed. We know little of how people came to be recruited to the Party, but those who have written biographies (who are likely to be disproportionately biblivorous) almost never refer to communist literature as a reason for their decision to join the party.[175] In the 1930s, joining the Party usually turns out to be a visceral reaction to the horrors of the recession, and one did not need foreign literature to know what these were. Party members read books, but one senses that they did so to reinforce their faith rather than to discover whether there was a foundation for it.
Censorship seems to have mattered more to the professional middle class than it did to the Party. This opposition can in part be understood in instrumental terms. If communism was to be understood as a political and social phenomenon, access to communist publications was essential. Scholars of the time may well have over-estimated the importance of such publications as guides to the thoughts of leading communists, but even to be aware of the gap between communist profession and communist behaviour, access to communist publications was essential. And this points to one of the reasons why censorship normally makes so little sense. It reminds us that the impact of a publication depends on how it is used. A communist publication may be used to reinforce a communist's belief that capitalism should and will be overthrown. But it may also be used by an anti-communist to show that communists are committed to the violent overthrow of the established order.[176] An attack on imperialism may set one reader thinking about the moral and economic basis for the Empire, but it may persuade another reader that communism is anti-British and unpatriotic. The fact that a pamphlet is cheap may make it accessible, but its cheapness may also communicate the sense that communism is vaguely seedy. The language of communist literature could alienate potential sympathisers, as well as winning others over.
Both communists and anti-communists have shown wry awareness of this phenomenon. Bernie Taft reports that one of the students in his class on Marx was so impressed by Marx's analysis of exploitation that he decided to become a businessman.[177] BA Santamaria mentions a Catholic priest who, in describing the doctrines that good Catholics should avoid, did so with such effect that several in his flock became Marxists.[178] Indeed, the multiple uses of communist literature ought to have been obvious to the Commonwealth. For one of the reasons why the Attorney-General's Department periodically expressed the desire to retain pieces of prohibited literature was that it considered that they could be used as evidence in prosecutions of the communist party. Stalin's Theory and Practice of Leninism was considered useful evidence to support the Commonwealth's 1935 application to have the CPA declared an unlawful association.[179] Indeed, in a sense, the multiple uses of communist literature do seem to have been grasped by the Commonwealth. Scholars (who could use it dispassionately) and the wealthy (who could usually be relied on to know where their class interests lay) could be trusted; the proletariat could not. On balance, it seems probable that communist literature did strengthen communism, by providing communists with access to arguments that they could cite in support of their cause. But its contribution was clearly minimal: the CPA's membership in the 1930s was no more than 4,000, and its electoral support was normally pitiful.[180]
The fact that conservative governments tolerated some forms of communist literature and not others indicates that political censorship cannot be understood simply in terms of the nature and degree of the 'communist threat' as perceived by Australian governments. It also requires awareness of the degree to which governments' capacity to engage in political repression is subject to political constraints, even when the target of that repression is a politically unpopular group. Because customs censorship was so unambiguously directed at publications of the far left, it was always regarded with suspicion by the political left. Labor's opposition to political censorship effectively precluded an effective state political censorship system since all that was needed was one state in which communist literature could be produced and it would be almost impossible to prevent its interstate distribution. But reservations about censorship extended well beyond Labor. Censorship could be condemned as infantilising, illiberal and as un-British.[181] It could be presented as an insult to the good sense of Australians insofar as it implied that Australians were unable to resist the illusory seductions of communism.[182] It was clearly illiberal, and therefore calculated to arouse opposition from many academics, lawyers and (more important) journalists.
Moreover, it is hard to avoid the sense that the inconsistency between political censorship and liberal-democracy caused unease even among the supporters of political censorship, especially as the Party shifted from the virulent polemics of the 'class against class' period to the less confrontationist language of the United Front period.[183] When White sought to defend political censorship, his characteristic response was to attack the promoters of liberalisation by arguing that they wanted to liberalise moral censorship as well (which they did).[184] It was as if he recognised that moral censorship still commanded widespread support, while political censorship was becoming increasingly unpopular. A similar awareness might help explain the apparent contradiction between the government's willingness to ban books and its reluctance to prosecute those who published and sold them. Administrative sanctioning tended to be invisible (and the secrecy of the 'list' contributed to this). Prosecutions under the Crimes Act would have been visible, and might well have resulted in juries acquitting defendants even when the book in question technically fell within the law.[185] And as the BCAL shrewdly realised, censorship could be presented as anti-British.
Among the self-congratulatory themes of British history is the success of the British in securing the abolition of peacetime prior censorship at a time when the practice was almost universal on the Continent. Those brought up against this cultural backdrop may not have always given much thought to why this was a good thing, but they are likely to have assimilated the assumption that it was. Moreover, censorship was not only un-British in the sense of its being alien to Britain's past. It was also alien to Britain's present. This constituted the basis for a rational argument against censorship: if Britain could do without it, why did Australia need it? But it could also draw on the powerful symbolism of Britain as model. This principle that what circulates in Britain should be allowed to circulate in Australia was adopted by Scullin to legitimate the winding-back of censorship. Its symbolic appeal was recognised in the 1932 guidelines, and the BCAL was able to make much of it. It was almost certainly central to Menzies' role in the effective abolition of political censorship. [186] In the absence of attempts to mobilise anti-censorship sentiments, censorship could survive, but once political censorship was placed on the political agenda, its survival was threatened. Customs censorship could survive because its impact was limited. Full-scale internal censorship would almost certainly have activated far more intense opposition.
The rises and falls of political censorship highlight the complex relationship between law and liberty in Australia. On the whole, political censorship took place within the limits laid down by law. The problem with political censorship was not that administrators disregarded the law, but that they implemented it. Liberalisation took the form of administrative rather than legal change. The coexistence of illiberal laws and liberal administration is in some ways puzzling. If pressures for liberalisation are strong enough to produce administrative liberalisation, why are they not strong enough to produce corresponding changes to the law?
A short-term answer no doubt lies in governments' reluctance to admit that they're wrong. For the UAP government to have repealed or drastically amended the Regulation not long after having made it could be presented as a backdown, and in the world of political symbolism, it is often better to be firm than flexible. A variant lies in the heterogeneity of governments. Within the UAP government, there was division over the desirability of liberalisation. Beliefs and egos were at stake. Amending the Regulation would have involved a substantial defeat for the government's anti-communist wing. Legal stability and administrative change meant respecting the views and egos of both anti-communists and liberals. One might nonetheless have expected that Labor would have repealed the Regulation, given its historic opposition to political censorship. But laws that are opposed by parties in opposition often become acceptable once the party assumes government. While the government may have no intention of making use of the law, it may be glad to have it on the books just in case it might be needed. Moreover, where laws are liberally administered, the pressures for amendment become far weaker. Administrative liberalism thus contributes to the survival of relatively repressive laws. In the end, however, administrative liberalism may lay the basis for the repeal of repressive laws. For the longer such laws survive, the clearer it is likely to become that they are unnecessary and the greater the likelihood that their repeal will be politically costless. When, after 40 comatose years, the legal basis for political censorship was finally repealed, there was no-one left to mourn.[187]
Abbott, Edwin, public servant (Trade and Customs), b 1878, entered public service 1893, promoted Chief Surveyor to Deputy Comptroller-General of Customs (1928) and to Comptroller-General (1933).
Ball, William Macmahon, academic and war-time administrator, b 1901, Head, Department of Political Science, University of Melbourne, 1932–40 (and later professor and head); Secretary, Book Censorship Abolition League (BCAL).
Boniwell, Martin C, public servant, b 1883, joined public service, 1899, Chief Clerk, Attorney-General's Department, 1921–32, Assistant Secretary, 1932–39; Acting Solicitor-General, 1937; Public Service Arbitrator, 1939–46.
Brennan, Thomas Cornelius, lawyer and politician, b 1869, Senator, Vic, 1932–38 (UAP), Acting Attorney-General, for periods, 1934–37.
Brossois, Charles Jerome, public servant (Trade and Customs), b 1889, joined public service 1922, promoted from Clerk, Shipping Branch (NSW) to Clerk, Investigation Section (1928), and to Investigation Officer (1935).
Browne, Roland Seymour, Inspector, b 1887, joined public service 1921, Inspector, Investigation Branch, Melbourne (1921–43), later served in Military Intelligence.
Carne, Clifton Jenkyn, public servant (Trade and Customs), b 1894, joined public service 1913, promoted Clerk (Landing Branch, WA) to Clerk (Correspondence and Records), (1927), Clerk (Jerquer's Branch) (1928), Clerk-in-charge (Statistics Branch) (1929), Clerk-in-charge (Correspondence and Records) (1930).
Jones, Harold Edward, public servant, soldier and intelligence officer, b 1878, joined public service, 1898, Director, Investigation Branch (Attorney-General's), 1919–43.
Knowles, (Sir) George Shaw, public servant, b 1882, joined public service, 1898, Assistant Secretary, Attorney-General's, 1921–32; Solicitor-General and Secretary, Attorney-General's, 1932–46.
Latham, (Sir) John Grieg, lawyer, politician and Chief Justice, b 1877, MHR, Kooyong, 1922–34 (Nat, UAP), Attorney-General, 1925–29, 1932–34, Chief Justice of High Court, 1935–52.
Lyons, Joseph Aloysius, teacher and state and federal politician, b 1879, MHR, Wilmot, 1929–39 (ALP until 1931, then UAP), Prime Minister, 1932–39.
Menzies, (Sir) Robert Gordon, lawyer and state and federal politician, b 1894, MHR, Kooyong, (UAP, Liberal); Attorney-General, 1934–39; Prime Minister, 1939–41, 1949–1966.
Power, Horace Richard, public servant (Trade and Customs), b 1888, joined public service 1909, promoted from Clerk (Parcels Post (Vic)) to Invoice Examining Officer (1926), Investigation Officer (1935) and Senior Investigation Officer (1938).
Simonds, Terence Bede, public servant (Trade and Customs), b 1888, joined public service 1905, promoted Clerk 3rd class (Correspondence and Records, Central) to Clerk-in-charge (1931), Senior Clerk (Correspondence and Records).
White, Thomas Walter, soldier, company director, and politician, b 1888, MHR Balaclava, 1929–51 (Nat, UAP, Lib), Minister for Trade and Customs, 1933–38, and Minister for Air and Civil Aviation, 1949–51. Resented Menzies' lack of war experience, jealous of his 'superior gifts', and expressed this in his private diaries: see Martin, above n 42 at 124, 248.
Sources: Gazette, 1925–1943 (including 1925 list of all then serving Commonwealth public servants); Australian Dictionary of Biography; Who's Who in Australia (various editions).
[*] School of Law and Legal Studies, La Trobe University,
[1] In his history of the Communist Party of Australia between 1920–42 (The Reds (1998)), Stuart Macintyre provides details of numerous bashings, raids, arrests, trials and prison sentences (often in default, for non-payment of fines). He also provides details of surveillance and infiltration of the party, actual and attempted deportations, and of political censorship. For page references, see his index, at 473. Frank Cain, The Origins of Political Surveillance in Australia (1983) (Origins) provides details of surveillance of the Party, and some details of other anti-communist measures taken between 1920–1948. His The Australian Security Intelligence Organization: an Unofficial History (1994) (ASIO) includes details of post-war anti-Communist measures: see especially at 88–116. Don Watson, Brian Fitzpatrick: A Radical Life (1979) provides numerous examples of anti-Communist measures. Lawrence W Maher has written two comprehensive accounts of the post-war sedition trials of communists: 'The use and abuse of sedition' [1992] SydLawRw 21; (1992) 14 Sydney Law Review 287 and 'Dissent, disloyalty and disaffection: Australia's last cold war sedition case.' [1994] AdelLawRw 1; (1994) 16 Adelaide Law Review 1. In Roger Douglas, Trials of the Left, 1930–39 (Paper presented at Australian and New Zealand Society of Criminology Conference, 20–23 February 2001), I present preliminary findings in relation to arrests and trials in connection with participation in Communist-organised activities in the 1930s. See also the text below nn 2 to 8, 11–30 and the references cited therein.
[2] War Precautions Repeal Act 1920 (Cth) s 12; Crimes (Amendment) Act 1926 (Cth); Crimes Amendment Act 1932 (Cth); National Security (Subversive Associations) Regulations 1940 (Cth); Communist Party Dissolution Act 1950 (Cth). The Approved Defence Projects Act 1947 (Cth) was directed at opposition to the development of the Woomera rocket range (which involved both communist and non-communist activists). The National Emergency (Coal Strike) Act 1949 (Cth) sought to cut off economic support for the 1949 miners' strike, and is to be understood as an anti-communist measure insofar as the strike was seen at the time as a communist-led strike. On these last two measures, see Watson, above n 1, 210–11, 221 (Watson incorrectly states that only 3 union leaders were imprisoned under the Act); Robin Gollan, Revolutionaries and Reformists: Communism and the Australian Labour Movement, 1920–1955 (1975), 239–42, 246–8.
[3] New sections 24A to 24E were added by the War Precautions Repeal Act 1920 (Cth) s 12.
[4] Criminal Code (Qld) ss 44–6, 52; Criminal Code (WA) ss 44–6, 52. In the other states (including Tasmania, which subsequently codified the relevant law (Criminal Code (Tas) ss 66, 67)), seditious libel, uttering seditious words, and participation in a seditious conspiracy were common law offences.
[5] See below nn 32–4, 36.
[6] On this legislation, see Roger Douglas, 'Keeping the Revolution at Bay: The Unlawful Associations Provisions of the Commonwealth Crimes Act' (2001) 22 Adelaide Law Review 261.
[7] Gazette, 24 May 1940 (94 of 1940), 20 June 1940 (114 of 1940), under National Security (General) Regulations reg 17B.
[8] Gazette, 15 June 1940 (110 of 1940) (CPA, League for Peace and Democracy, Minority Movement); 20 June 1940 (114 of 1940) (Printers' Investment Co Pty Ltd, Modern Publishers Pty Ltd, Forward Press Pty Ltd); 24 June 1940 (117 of 1940) (Communist League); 6 July 1940 (127 of 1940) (Revolutionary Workers' League); 8 August 1940 (154 of 1940) (Australian Youth Council); 24 February 1941 (34 of 1941) (League of Young Democrats).
[9] Queensland, Western Australia, Tasmania.
[10] Summaries of the current law in these areas are to be found in Butterworths, Halsbury's Laws of Australia, vol 9 (at 7 July 1998) 130 Criminal Law, 'VI(2) Offences against the Government and the Public' [130–12000]–[130,12310], and LBC, Laws of Australia, vol 10 (at 1 February 1997) Criminal Law, '10.10 Public Order'. While the law has been liberalised in some respects (especially in relation to public assemblies), the current law still reflects its British antecedents in many respects.
[11] Leicester Webb, Communism in Australia:. A Survey of the 1951 Referendum (1954) 43.
[12] The most comprehensive accounts of the use of the Commonwealth sedition legislation are those provided by Maher, above n 1.
[13] During the depression years, the CPA had established Workers' Defence Corps (WDC) in several states. A Labor Defence Corps had been established in the northern coalfields of New South Wales in the aftermath of violent confrontations between police and striking miners. A Workers' Defence Army also operated in the area. A body called the Unemployed Defence Corp aroused concern when its members practiced drill on the Perth Esplanade. Some of these bodies seem to have amassed arms and ammunition, but these were never used, and their whereabouts tended to become known to the police. The WDC provided protection for communist speakers from their New Guard opponents, and was sometimes involved in organising resistance to attempted evictions. Insofar as its members used violence, this involved brawling, physical assaults, and the use of blunt instruments, rather than firearms. See Macintyre, above n 1, 210–11; Miriam Dixson, 'Rothbury' (1970) 17 Labour History 14, 22–6; Andrew Moore, The Secret Army and the Premier: Conservative Paramilitary Organisations in New South Wales, 1930–32 (1989) 79–80. The Governor-General may give directions by proclamation forbidding participation in military exercises and a person who disobeys these directions is guilty of an offence: Crimes Act 1914 (Cth) s 27.
[14] Harold Devanny, the publisher of the Workers' Weekly, was charged with having solicited money for an unlawful association, on the basis of an appeal in the Workers' Weekly for funds for an anti-War conference. His conviction was overturned on appeal to the High Court: R v Hush; Ex parte Devanny [1932] HCA 64; (1932) 48 CLR 487. Charges against others who had been charged under the legislation were not proceeded with. For a discussion of his case, see Douglas, above n 6.
[15] This estimate is based on cases that were listed in one or more of the following sources: indexes to the Sydney Morning Herald, the Melbourne Argus and the Melbourne Herald; cases referred to in publications of the Australian Council for Civil Liberties; and cases that were the subject of National Archives of Australia files whose titles indicated that they related to prosecutions under relevant regulations. Precise estimates are complicated by lack of information about some defendants' politics. However, of those defendants who appeared to have been communist sympathisers, fewer than half were charged under the Subversive Associations Regulations and of these, about a third were also prosecuted for offences under the General Regulations. Macintyre, above n 1, 401 suggests that the figure of 50 is an under-estimate, but he does not point to any sources to support this contention.
[16] There are no references to Crimes Act prosecutions in any of the sources cited at above n 15. (It is unlikely that a political prosecution would have escaped the attention of both the press and the Australian Council for Civil Liberties.) See also Maher's statement ('Dissent, Disloyalty and Disaffection', above n 1, 13–14) that Burns was the first person to be prosecuted for a Commonwealth sedition offence. The government relied on its powers under regulations made under the National Security Act 1939 (Cth) both to ban communist newspapers and to ban the CPA.
[17] Two Queenslanders—Fred Paterson and Phil Bossone—were charged with uttering seditious words. Paterson was acquitted, and at his second trial Bossone was convicted and released on a good behaviour bond: Ross Fitzgerald, The People's Champion, Fred Paterson: Australia's only Communist Party Member of Parliament (1997) 49–52; Workers' Weekly 3 October 1930, 2. Robert Knox (whose politics are not clear) was committed to trial on a charge of uttering seditious words by the Hobart Police Court: Sydney Morning Herald, 25 May 1932. (I have not found any report of his fate). Henry Wilkins was convicted and sentenced to imprisonment for 'sedition' in Western Australia: Geoffrey Bolton, A Fine Country to Starve in (1994), 147. An IWW (Industrial Workers of the World) activist, E A Dickenson, was convicted and imprisoned in South Australia in 1928 for publishing seditious words: Cain, Origins, above n 1, 200.
[18] See Douglas, above n 1, for approximate (but conservative) details of arrests and trials for public order offences in the 1930s.
[19] Examples include the Wollongong and North Fremantle Councils' refusal to allow their halls to be used for a meeting of the Friends of the Soviet Union (Sydney Morning Herald, 23 April 1932, 17; Justina Williams, The First Furrow (1976), 17); the cancellation by the Melbourne City Council of an agreement to let the Town Hall for an anti-war conference (Notes on Communism No 46, NAA (National Archives of Australia): A467 BUN94/SF42/64 286); and refusals by the Sydney City Council to permit its Town Hall to be used for a showing of the film, Ten Days that Shook the World or for the opening of the CPA's 1937 election campaign (Workers' Weekly 11 December 1936, 10 August 1937).
[20] Examples are rare. A New South Wales schoolteacher was dismissed on her return from a visit to the Soviet Union, but was subsequently reinstated: Macintyre, above n 1, 348; Workers' Weekly 10 February 1933. On his return from May Day celebrations in Moscow, as a delegate of the Australian Railways Union, LA Mullins was dismissed from his job as a railways porter on the grounds that he had been absent without leave: Sydney Morning Herald, 5 November 1932, 13. A one-legged Gallipoli veteran was reportedly dismissed from his Melbourne City Council employment on the grounds of his alleged communist associations: Argus, 11 May 1933, 6.
[21] Watson, above n 1, 82.
[22] See Macintyre, above n 1, 192, 217–9, 226, 270, 402; Cain, Origins, above n 1, 254–6.
[23] See Macintyre, above n 1, 60, 88, 156–7, 193–4, 226. Moore's account of the 'Secret Army' (above n 13) includes details of numerous incidents where police turned a blind eye to anti-communist violence. There were, however, limits to the level of violence that police were willing to tolerate, and by the late 1930s, the Victorian Council of Civil Liberties was expressing satisfaction at the willingness of the Victoria police to provide protection to communist speakers.
[24] See, eg, Cain, Origins, above n 1, 254, who contrasts the vigour with which the Commonwealth Investigation Bureau (the CIB) monitored the activities of communists and IWW activists, with its relative unconcern with indigenous and even foreign Fascism. See also Macintyre, above n 1, 70. The role of ASIO in supervising communism and communists is discussed in, inter alia, Cain, ASIO, above n 1, 90, 96–113.
[25] Ibid 106–13.
[26] Ibid 104–6.
[27] Egon Kisch, a Czech-born journalist, had been invited to Australia by the Australian branch of the Congress Against War and Fascism, to address an anti-war conference. He was initially denied entry to Australia, but was allowed to land following a successful habeas corpus application: R v Carter; Ex parte Kisch [1934] HCA 63; (1934) 52 CLR 234. He was then required to undergo a dictation test in Scots Gaelic, which despite his familiarity with most European languages, he failed. A conviction for being illegally in Australia was overturned when the High Court held that Scots Gaelic was not a 'European language' for the purposes of the Immigration Act 1901 (Cth): R v Wilson; Ex parte Kisch [1934] HCA 50; (1934) 52 CLR 221. He thoroughly enjoyed his visit, and the government's successive embarrassments: Egon Erwin Kisch, Australian Landfall (1937). There are numerous accounts of his visit, and the surrounding circumstances including: C M H Clark, A History of Australia (1987) vol 6, 463–76; Macintyre, above n 1, 270–3. International Labor Defence published a pamphlet, How the Kisch-Griffin Ban was Smashed. Knowles advised that the pamphlet should not be barred from transmission through the post: Knowles to Director-General, Posts &Telegraphs, 27 September 1935, NAA: A467/1 BUN89/SF42/9.
[28] It was an offence under the Crimes Act 1914 (Cth) s 30FC to allow premises to be used by an unlawful association. Attempts to enforce the section proved largely unsuccessful. First, owners had to be identified. Second, they had to be warned that a forthcoming meeting fell within the section. (Sometimes there was little time between the Commonwealth becoming aware of a proposed meeting, and the date of the meeting.) In relation to premises occupied by the Party, a problem arose in relation to the identification of the lessees of the premises. (These changed frequently.) See generally, NAA: A467 Bundle 94/SF42/8 32/1254.
[29] Cain, Origins, above n 1, 199, 245.
[30] See Douglas, above n 6. In the late 1920s, the Commonwealth Investigation Branch had urged that the provisions be used against the IWW, but Sir Robert Garran, the Solicitor-General, had recommended the use of the Post and Telegraph Act to stop the transmission of IWW publications: Cain, Origins, above n 1, 199.
[31] These were: a pamphlet, Bond Certificate Campaign—First Loan of the Elected Government of the Republic of Ireland (T&C 20/B3450) Gazette, 6 May 1920 (no 39 of 1920); a song entitled 'The Sinn Fein Volunteers' Customs Proclamation No 21 (T&C 20/B12328), dated 15 December 1920, Gazette, 17 December 1920 (no 112 of 1920); The Irish Republic. Why? Customs Proclamation No 22 (T&C 20/B/12842), dated 23 December 1920, Gazette, 30 December 1920 (no 116 of 1920).
[32] Customs Proclamation No 24 (T&C 21/B/365), Gazette, 3 February 1921 (No 11 of 1921).
[33] Customs Proclamation No 37 (T&C 21/B/5230), dated 16 June 1921, Gazette, 23 June 1921 (No 55 of 1921). Cain wrongly gives the date as 1927: Cain, Origins, above n 1, 196.
[34] Customs Proclamation No 181 (T&C 29B/2880), Gazette 19 December 1929 (No 118 of 1929).
[35] In view of the frequent changes in the name of the urban non-Labor party between 1920–50, and in view of the fact that some non-Labor governments were coalitions while others were not, I shall use the term 'conservative' as the generic term for non-Labor governments.
[36] Customs Proclamation No 221 (T&C 32/A2549), Gazette, 4 August 1932 (No 58 of 1932).
[37] New Customs (Prohibited Imports) Regulations were made in 1956. This involved the re-numbering of prohibited items, with seditious literature being item 21, the other categories being grouped together as item 20. Items 20 and 21 were deleted from Schedule 2 by the Hawke government: Customs (Prohibited Imports) Regulations (Amendment) (SR 331 of 1983) reg 4. The Regulation came into operation on 1 February 1984.
[38] Customs (Prohibited Imports) Regulations reg 4A(1A)(a)(ii), later reg 4A(1A)(iv). In 1990 the relevant regulation was broadened. Express references to terrorism were replaced by a general ban on material which promoted, incited or instructed in matters of crime or violence: SR 39 of 1990.
[39] Customs Act 1901 (Cth) ss 203 (goods suspected of being forfeited could be seized), 229 (prohibited imports are forfeited).
[40] Customs Act 1901 (Cth) s 205.
[41] Customs Act 1901 (Cth) s 207.
[42] White could be taken as implying otherwise. In the course of a speech during a 1935 debate on censorship, he explained that books would sometimes be investigated for possible banning on the basis of reviews, sometimes on the basis of lists of books banned overseas, and sometimes following complaints from readers in Australia: Commonwealth, Parliamentary Debates, House of Representatives, 27 March 1935, 335. The files on seditious literature suggest a somewhat different picture: decisions on bans were almost invariably a response to an attempt to import a particular work. There is no evidence of pre-emptive proscription. White may, however, have been referring to moral censorship.
[43] Brief biographical details of politicians and administrators mentioned more than twice in this article are provided in Appendix 1.
[44] For the history of this complaint, see NAA: A425/122 39/1345.
[45] One reason for the lack of complaints may be the thoroughness with which the Department pursued communist literature prior to 1936. A second may be that those who would have been distressed by the importation of such literature did not frequent the kinds of bookshops where it was displayed for sale, and would therefore have been unaware of its existence.
[46] Cain, Origins, above n 1, 198–9.
[47] See Cain, Origins, above n 1, 243 for a discussion of the role of the Attorney-General's Department in the 1920s.
[48] Abbott (Acting Comptroller-General) to Officers, 6 November 1933, NAA: B13/0 1944/2540.
[49] The Communist Way Out: NAA: A467/1 BUN94/SF42/45 34/280.
[50] Peter Coleman, Obscenity, Blasphemy and Sedition: One Hundred Years of Censorship in Australia (1974) 84.
[51] Cain, Origins, above n 1, 244–5.
[52] Works which Attorney-General's considered not to be seditious included: The Life and Struggles of Negro Toilers, NAA: A467/1 BUN20/SF7/22 (handled under the 1929 proclamation); Bilten; A Blow at Intervention, NAA: A467/1 BUN20/SF7/7. In November 1932, Knowles recommended that 4 of 5 publications (one consisting of 7 volumes) by William F Brown were seditious, NAA: A467/1/BUN20/SF7/24. In July 1933, he advised in relation to 13 pamphlets that all but two (The Victory of the Oil Workers and The Conditions of the Proletariat in the USSR) were seditious: Knowles to Comptroller-General (CG) 11 July 33, NAA: A467/1 BUN20/SF7/29. In contrast, between January 1932–December 1933, 66 publications were banned. Following the government's adoption of the more liberal policy in relation to communist publications, the 60 publications banned without review by Attorney-General's were all removed from the banned list.
[53] Watson, above n 1, 69.
[54] A 1935 submission from White to Cabinet suggests otherwise. Writing of the then current system, he claimed: 'Under this system the Minister for Customs makes the final decision, and while the system causes some delay, it is better than prior to 1933 when practically all the decisions were made by the Customs Department': 'Cabinet Agenda 1575' NAA: A467/1 BUN21/SF7/3. This is inconsistent with Abbott's memorandum of 6 November 1933. The apparent inconsistency may be resolved if 'making the final decision' were to mean 'making the final decision, in the event of being asked by an importer to do so'. Any other meaning would mean that his statement would be inconsistent with the claim that there was a right of appeal to the Minister, since this would be pointless if the Minister routinely made the de facto final decision.
[55] See question, Senator Rae (ALP, NSW) to Senator Pearce (UAP, WA) (representing Henry Gullett, Minister for Trade and Customs), Commonwealth, Parliamentary Debates, Senate, 20 October 1933, 3745. Appeals seem to have been rare, and there do not appear to be any instances of a successful appeal.
[56] A W Martin (assisted by Patsy Hardy), Robert Menzies: a Life, (1993) vol 1, 202.
[57] NAA: A425/122 36/10585.
[58] NAA: A425/122 39/1345.
[59] Walter Greene (Nat, Richmond; Minister for Trade and Customs answering)), Frank Brennan (ALP, Batman); Commonwealth, Parliamentary Debates, House of Representatives, 11 May 1921, 8273, Littleton Groom (Nat, Darling Downs, for Greene), answering Thomas Ryan (ALP, West Sydney), ibid 19 July 1921, 10223.
[60] Herbert Pratten (Nat, Parramatta; Minister for Trade and Customs and for Health) (answer to Percy Coleman (ALP, Reid)), Commonwealth, Parliamentary Debates, House of Representatives, 18 November 1927, 1633; Henry Gullett (Nat, Henty, Minister for Trade and Customs) (answer to Charles Culley (ALP, Dennison)), Commonwealth, Parliamentary Debates, House of Representatives, 18 March 1927, 1320.
[61] The Commonwealth Investigation Branch was provided with lists by the Victorian Collector of Customs, but these were sometimes incomplete. Browne, after reporting that he had sent a list based on Victorian sources to his Director in Canberra, wrote to the Collector stating that Central Customs had permitted the Director to sight a list of prohibited literature, and that the Victorian list had included only about six of the items on the list. Since the list in question had included eight publications, there would have been about two publications on the Victorian list but not the Central list: Browne to Collector (Vic) 18 December 1933, David Swale (Acting Collector (Vic)) to Browne 15 September 1933, NAA: B13/0 1944/2540.
[62] On importers, see White, Commonwealth, Parliamentary Debates, House of Representatives, 27 March 1935, 354. On the general public, see question, Senator Rae to Senator Pearce, Commonwealth, Parliamentary Debates, Senate, 20 October 1933, 3745. In relation to the list, Pearce said: 'It is not the practice to publish lists of publications containing seditious literature inasmuch as it is considered that the publication of the names of such prohibited literature would unnecessarily advertise the particular publications.' See also: question, George Lawson (ALP, Brisbane) to T W White, Commonwealth, Parliamentary Debates, House of Representatives, 25 October 1933, 3900. In answer to a question from John Curtin (ALP, Fremantle), White went further. It was not government policy to disclose even the number of books banned in Australia: Commonwealth, Parliamentary Debates, House of Representatives, 25 September 1936, 590.
[63] See question on notice, John Rosevear (ALP, Dalley) to White, Commonwealth, Parliamentary Debates, House of Representatives, 21 November 1933, 4865. White's justification was that a list of titles would not assist a person to assess whether the law was being administered properly, and the distinction was justified on the grounds that seditious literature was dealt with not by the Book Censorship Board but by the Customs and Attorney-General's Departments.
[64] Minutes of meeting between G Fitzpatrick, R Hall and TW White, NAA: A467 BUN21/SF7/1. A similar argument had been used by Fenton (in his role as Minister for Trade and Customs in the Scullin government) in defence of his reluctance to reveal the contents of the list of obscene publications. He had added that one danger of revealing salacious titles was that they might be ordered by mail, in which case, their importation might well not be detected: answer to Richard Crouch (ALP, Corangamite), Commonwealth, Parliamentary Debates, House of Representatives, 30 July 1930, 4926.
[65] Cain, Origins, above n 1, 198.
[66] He subsequently became Postmaster-General in the Lyons government and was responsible for administering the ban on the postal transmission of communist publications.
[67] The policy is cited by White: Commonwealth, Parliamentary Debates, House of Representatives, 27 March 1935, 346. It was communicated to the Secretary of the NSW Australian Railways Union in a letter dated 28 January 30: Workers' Weekly, 14 February 1930.
[68] These estimates are based on the incomplete lists to be found in NAA: B13/0 1944/2540.
[69] James Fenton (ALP, Maribyrnong, Minister for Trade and Customs) (answer to Richard Crouch (ALP, Corangamite)), Commonwealth, Parliamentary Debates, House of Representatives, 30 July 1930, 4926. File NAA: B13/0 1944/2540 includes details of 19 foreign publications (one, a volume including 7 'publications') which were to be allowed in.
[70] The memorandum, T&C memo 32/A 2349 of 16 August 1932, is noted in Clerk in Charge to WA Collector, 8 Dec 1932, NAA: A425/122 36/5307. The policy in favour of British publications also seems to have been operative, at least in 1932. The only reference in the file to publications prohibited in 1932 was to a number of US publications by one W M Brown.
[71] Coleman, above n 50, 83. I have not been able to trace any order rescinding the earlier instruction and Coleman does not cite any. The 'foreign language' exception was still accepted by Customs in February 1933. However, noting a file minute from Latham to the effect that the policy was subject to the proviso that '[e]nquiry to be made re Jugo Slav Communist newspapers particularly in WA', Hall, the Comptroller-General sought Knowles' advice in relation to whether the Crveni Kalendar—a Chicago-published, Yugoslav publication which had been imported into Western Australia—should be banned. Knowles was initially of the view that it should not be, given the policy. After having obtained a translation, and at the urging of Jones of the CIB, he agreed that it fell within the prohibition, and it was banned: NAA: A467/1 BUN20/SF7/28. Even in late 1933, the policy seems to have had some operation. A memorandum from Maurice Synan (Collector, Victoria) to Browne, 21 November 1933 (NAA: B13/0 1944/2540) points out that La Vie Proletarienne fell within the prima facie 'foreign language' exemption. He resubmitted the publication—a newspaper published in Belgium, which, despite its name, was in Italian—for a report on whether it contained any objectionable matter. The report concluded that the paper was communist, but that it made no reference to Australia, the Empire, nor to anyone domiciled in Australia.
[72] By 1937, at least 23 foreign language publications had been banned. Works excluded which freely circulated in Britain included work by Fox, Hutt, Palme Dutt and Pollitt, along with International Press Correspondence.
[73] For accounts of the campaign, see Coleman, above n 50, 84–6; Martin, above n 56, 200–1; Watson, above n 1, 67–70.
[74] 'Communistic Literature', NAA: A467/1 BUN21/SF7/1; Coleman, above n 50, 84.
[75] Launceston Examiner, 17 September 1935. White reiterated this principle in the course of his meeting with an anti-censorship deputation in October 1935, but stated that no application from a bona fide student had yet been received. Report of Proceedings of Deputation, 10 September 1935, 13 NAA: A467/1 BUNDLE 21/SF7/3.
[76] White, Submission to Cabinet Agenda 1575, par 25 NAA: A467/1 BUN21/SF7/3.
[77] White, Submission to Cabinet Agenda 1575, par 24 NAA: A467/1 BUN21/SF7/3.
[78] 'Censorship of books—Political books', NAA: A467/1 BUN21/SF7/3.
[79] Knowles, minute 20 March 1936; 'Censorship of books—political books', NAA: A467/1 BUN21/SF7/3.
[80] 'Censorship of books—Political books', NAA: A467/1 BUN21/SF7/3.
[81] Answer to question, Edward Holloway (ALP, Melbourne Ports) to Lyons, Commonwealth, Parliamentary Debates, House of Representatives, 8 May 1936, 1430–1.
[82] Answer to question, John Curtin (ALP, Fremantle) to Lyons, Commonwealth, Parliamentary Debates, House of Representatives, 22 May 1936, 2243.
[83] In answer to a question from John Curtin (ALP, Fremantle), in relation to the alleged seizure by Customs of Mill's An Essay on Liberty, White began by stating that 'I cannot say whether the book last indicated is an essay on liberty or licence but some people find it difficult to distinguish between these two subjects': Commonwealth, Parliamentary Debates, House of Representatives, 23 September 1936, 397–8.
[84] See eg Boniwell to CG, NAA: A467/1 BUN94/SF42/63 33/1267 (re The Only Way Out); Knowles to CG, 17 October 1933, NAA: A467/1 BUN20/SF7/64 (The Paris Commune. A Story in Pictures).
[85] Knowles to CG, 18 September 1933, NAA: A425/122 37/9231. This approach is arguably slightly more liberal than Knowles' analysis of Dutt's World Politics 1918–1936 might suggest. There Knowles considered that the book did not 'contain any direct incitement to violence and civil war for the attainment of the world socialist organization, which the author regards as inevitable. Besides its propagandist object, the book may be of interest to students of political history and theory.' He nonetheless considered that: 'On a strict interpretation of the prohibition contained in the Regulations, the book would appear to be a prohibited import.' Knowles to CG, 4 November 1936. Given his conclusion that the book should be allowed in under the 1936 guidelines, his assessment of whether the book could fall within the Regulations was not of central importance.
[86] Knowles to CG, 17 October 1933, NAA: A467/1 BUN20/SF7/64. The passage is at 55, NAA: A467/1 BUN20/SF7/64.
[87] Brossois, Clerk Investigation Section to Collector, 27 July 1933; Collector to CG, 29 July 1933, rec prohibited; CG to Sec A-G's request for advice, 8 August 1933; seditious, Knowles to CG, 18 September 1933 NAA: A425/122 37/9231 in relation to A Badayev, Bolsheviks in the Tsarist Duma which advocated turning imperialist wars into civil wars.
[88] Brossois, Clerk Investigation Section to Collector (NSW), 27 July 1933; Collector to CG, 29 July 1933, rec prohibited; CG to Sec A-G's, request for advice, 8 August 1933; seditious, Knowles to CG, 18 September 1933; NAA: A425/122 37/9231 in relation to K Neukranz, Barricades in Berlin. The prohibition was later lifted on the grounds that the book did not advocate the overthrow of an Australian government. F Wolf, Floridsdorf, a play dealing with a workers' insurrection in the Floridsdorf district of Vienna, was considered seditious, but the Attorney-General's Department recommended that it nonetheless might be allowed in, and under the more liberal policy, its importation was permitted: NAA: A425/122 36/5523.
[89] Power to Inspector, 17 September 1935, NAA: A425/122 36/5522.
[90] See for instance his analysis of G Trease, The Call to Arms. This book dealt with a war between two fictitious Latin American countries, one called Coravia:
True to communistic principles, the Coravians turn the capitalist war into a civil war and make Coravia 'a new country and a better one'.
The book is undoubtedly communistic propaganda. The foundation of the plot may have been the Chaco dispute in South America but the author hides the scene ... By inference, the book would incite the revolutionaries of other countries to follow the example of the Coravian revolutionaries, but there is no direct incitement to overthrow by force or violence the established government of any civilised country.
I think that this is a case in which the Minister may exercise his discretion under the Regulations and consent to the admission of the book.
Knowles to CG, 1 September 1936, NAA: A467/1 BUN94/SF42/35 34/140/25; A425/122 36/8843.
Implicit in the assumption that this was a case for the exercise of Ministerial discretion was the assumption that this was a prohibited import: otherwise there would have been no discretion to exercise. See likewise his analysis of International Literature:
In my opinion, the publication is a subtle form of communist propaganda and, as such, on a strict interpretation of the Regulations, a prohibited import. It does not, however, directly invite the overthrow by force or violence of the established government of the Commonwealth or of any part of the King's Dominions. I think that this is a case in which the Minister may exercise his powers under the Regulations and consent to its entry into the Commonwealth: Knowles to CG, 1 June 36, NAA: A425/122 36/5303 (emphasis in original).
In assessing Information Bulletin of the Young Communist International No 1, he concluded that the publication was a prohibited import:
It is evident, therefore, that the publication is an appeal to the youth, not only of France to propagate Marxism throughout the world. 'Marxism is the revolutionary theory that shows the way to a new world' (p 32). Soviet Russia is held up to the youth of the world as an example of what can be done by organization, the inference being that the youth of other countries should follow the Russian experiment. This necessitates the use of force or violence: Knowles to CG, 17 December 1936, NAA: A467/1 BUN94/SF42/36 24/140/26.
[91] 'Communistic publications', NAA: A467/1 BUN21/SF7/1, A467/1 BUN94/SF42/24. The memorandum related to 60 works that had been banned by Customs during the period when Customs had assumed sole responsibility for the censorship of seditious literature. No action was taken on Tipping's report, which was confined to an assessment of whether the works fell within the Regulation. Instead, after consultation between White and T C Brennan, the Acting Attorney-General, it was decided that the question of whether books on the list had been properly seized should not be re-opened, except where requests were made in relation to particular books: Knowles to CG, 3 June 1936, Abbott to Sec, A-G's, 11 June 1936 ,NAA: A467/1 BUN94/SF42/24.
[92] They almost invariably were. Many of the publications on the list were subsequently re-considered and a decision made that they be allowed in. The remainder do not seem to have been re-assessed, but they were not included on the Customs Department's 1937 list of banned publications.
[93] Cited, Brossois to NSW Collector, 3 October 1935, NAA: A425/122 1936/5534.
[94] The ban on the Communist Manifesto was particularly pointless: as early as 1926, a local edition had been printed by the CPA: this was referred to by John Latham (Nat, Kooyong), Commonwealth, Parliamentary Debates, House of Representatives, 28 January 1926, 460.
[95] Acting Collector of Customs (Vic) to Inspector, A-G's, 15 September 1933, NAA: B13/0 1944/2540. It is not clear when it was removed, but W Macmahon Ball reported that it had been removed by 1935: 'The Australian Censorship' (1935) 26 Australian Quarterly 9, 13. The same memo recorded that What is to be Done? had been banned.
[96] Works admitted as theoretical included: Socialism and War and War and the Second International (notified, Acting Collector of Customs (Vic) to Inspector, A-G's, 19 February 1936 NAA: B13/0 1944/2540); Lenin on Democracy Trade Unions and the Murderers of Karl Liebknecht and Rosa Luxemburg; Budnov's Leninism (Knowles to CG, 3 June 1936, NAA: A467/1 BUN94/SF42/23 34/140/12); Lenin's Complete Works (3 October 1935, NAA: A425/122 1936/5524); What is to be Done? (removed towards the end of 1935, see Roy Rawson (radical bookshop proprietor) to Theo Lucas (rationalist and anti-censorship campaigner), 21 July 1937, Fitzpatrick Papers, ANL MS 4965, 9906).
[97] The volumes had been imported by the Myer Emporium for a client for private use. Customs considered that volumes 1, 5, 7, 8 and 11 were possibly seditious: CG to A-G's, 13 February 1940. The assessment quoted is Knowles': Knowles to CG, 21 February 1940. Lenin's Selected Works vol II had been prohibited, but several of his works had already been de-listed.
[98] T C Brennan to Abbott, 6 August 1935 NAA: A425/122 1935/5652.
[99] Commonwealth, Parliamentary Debates, House of Representatives, 27 March 1935, 352. It was not clear, however, whether he had seditious literature in mind when he made this observation, but he probably did, given that public libraries were more likely to stock seditious literature than they were to stock obscene literature.
[100] Minutes of a meeting between Fitzpatrick, Hall and White ,NAA: A467 BUN21/SF7/1.
[101] See Brossois to Collector (NSW), 3 October 1935, NAA: A425/122 1936/5524; on the Selected Works, see NAA: A425/122 37/9231.
[102] Indeed, because a generally unobjectionable book could fall foul of censorship on the grounds of a particular passage, a book might be banned, while unobjectionable sections could appear in pamphlet form. There is at least one example of this (but it is from the mid 1930s). Crisis on Clydesdale, a non-seditious chapter from the banned Conditions of the Working Class in Britain, was released while the book remained banned: Abbott to Collectors ,17 March 1936, NAA: A425/122 36/5522.
[103] Reference to A-G's, 11 June 1936, NAA: A425/122 1936/5308.
[104] Knowles' willingness to do so may have been influenced by the fact that this now mattered only if the publication warranted prohibition under the more liberal policy.
[105] See Knowles to CG, 3 June 1936, NAA: A425/122 36/5525; 1 September 1936, NAA: A467/1 BUN94/SF42/35 34/140/25; A425/122 36/8843; Boniwell to CG, August 1937, NAA: A425/122 37/9231; Knowles to CG, NAA: A432/85 38/1022.
[106] NAA: A425/122 1936/5308.
[107] NAA: A425/122 36/5303; NAA: A425/122 5307; NAA: A467 BUNDLE 93/SF42/44; NAA: A425/122 36/2506. The removal of the ban on Inpreccor was belatedly announced in Workers' Weekly on 23 July 1937. The report noted that '[s]ecretly and stealthily, in response to popular demands, the Lyons government has scored out the name from the banned list, though no announcement was made and no confirmation or denial could be obtained from the government. Pettily and childishly the Lyons government has lifted the ban so as to be able to reply to critics of its reactionary policy, but by secrecy it hoped to prevent the victory to the democratic people from being effective.' Copies were available from the Anvil Bookshop.
[108] Knowles to CG, 3 June 1936, NAA: A467/1 BUN89/SF42/12; Note to Menzies to White, 27 July 1937, NAA: A425/122 37/9231.
[109] NAA: A425/122 1936/5308; The Attorney-General decided, against the advice of the Acting Secretary, Attorney-General's, that the ban should be lifted: file note 10 June 1937, A467 BUNDLE 89/SF43/18.
[110] Recommended for admission: John Castieau (Second Assistant Secretary) for Acting Sec, A-G's to CG, 10 June 1937. Approved, White, 11 June 1937, A425/122 1937/5573.
[111] Knowles to CG, NAA: A432/85 38/1022. This book (by the author of British Imperialism in India) was definitely not the kind of Annual that middle class adults would normally give their grandchildren for Christmas. Its subversive contents included 'Rule Britannia. A most scurvy tale', and an alphabet rhyme, including: 'E stands for Empire, built upon blood; F is for Fascists a murderous brood'. White referred to this work in the 1935 censorship debate, adding the information that the subversive literature was supplemented by pictures. 'F is for Fascists' is accompanied by a drawing of 'a pile of skulls surmounted by the Union Jack, with a British officer with drawn sword standing alongside': Commonwealth, Parliamentary Debates, House of Representatives, 27 March 1935, 347.
[112] NAA: A425/122 37/13136.
[113] NAA: A425/122 37/9231.
[114] Workers' Weekly, 25 June 1937.
[115] NAA: A425/122 36/5523; NAA: A425/122 37/9231.
[116] McMahon Ball, The Herald, 16 June 1937 claimed no new works had been added after 1935. However, as late as June 1936, Knowles had recommended the banning of For Soviet Britain and Robson's How the Communist Party Works and Jackson's The Jubilee and How (Knowles to CG, 2 June 1936 NAA: A425/122 36/5304), Manuilsky's Revolutionary Crisis is Maturing and Revolutionary Crisis (Knowles to CG 3 June 36 NAA: A467/1 BUN94/SF42/23 34/140/12); Dimitrov's The Working Class against Fascism (which would have been allowed in had it confined its attention to Fascist states, but which qualified for prohibition on the grounds of advocacy of revolution in Britain and of a national liberation movement in India: Knowles to CG, 3 June 1936 NAA: A467/1 BUN89/SF42/12), and several books of revolutionary songs (Knowles to CG, 3 June 1936, NAA: A425/122 36/5525). These appear on a 1937 list of prohibited publications (T&C 37/6068 in NAA: SP109/3/1 316/37). On 17 December 1936, he had written to the Comptroller-General recommending that the Information Bulletin of the Young Communist International No 1 was a prohibited publication. Cabinet decided to reverse this decision (NAA: A425/122 36/10585). In addition, on 3 June 1936, he had recommended that the ban on Stalin et al, Socialism Victorious continue: (NAA: A425/122 1936/5524).
[117] It is a tribute to the government's success in keeping the banned list secret that estimates of the number of banned books vary considerably. A 1936 minute for the Prime Minister stated that there were approximately 200 publications on the prohibited list, mainly booklets or pamphlets: 'Censorship of books', par 14 NAA: A467/1 BUN21/SF7/3S; Murray-Smith, 'Censorship and Literary Studies' in Geoffrey Dutton and Max Harris (eds), Australia's Censorship Crisis (1970) 77, 79, by contrast, estimates that the number of banned books was 165. An estimate by the BCAL was that between January 1932 and December 1933, 66 political books were banned; between December 1933 and 26 October 1934, 79 books were banned, and a further 12 books were banned between 26 October 1934 and 9 January 1935: Francis Baker (ALP, Griffith), Commonwealth, Parliamentary Debates, House of Representatives, 27 March 1935, 354, quoting Miss Kemp of the BCAL who had been given the figures by Customs. Between 16 January and 19 February 1936, another 32 works were banned (and 4 were removed from the banned list). In the following period, another 15 publications were added (and 2 removed): Wilson, Acting Collector of Customs, Victoria to Inspector, CIB, Melbourne, 19 February 1936: NAA: B13/0 1944/12540. These figures yield an aggregate close to 200.
[118] Abbott to Edmund Bonney (Chief Publicity Censor), 19 January 1943, NAA: SP109/3/1 316/37. The only books left on the list were books whose banning had been expressly approved by the Attorney-General's Department, and whose banning had not been subsequently reviewed.
[119] Collector of Customs (Vic) to Director, CIB, 21 February 1938, 20 February 1941, 19 February 1942, 22 May 1944, NAA: B13/0 1944/2540.
[120] In a 1942 memorandum, Knowles reiterated the 1936 policy, argued that 'seditious purpose' was to be given a narrow construction, and pointed out that the Regulation did not cover 'subversive' as opposed to 'seditious' literature. Seditious literature would be caught if it came in as postal matter, but not if it came in as freight. He suggested that the Regulation be amended: Knowles to Sec Department of Defence Co-ordination, 15 September 1942. The Department of the Army suggested an amendment to the Regulation, based on a Canadian precedent, but nothing came of this: NAA: A816/1 1/301/208. The problem was largely theoretical. The exigencies of war severely limited the foreign goods that could find their way to Australia. Moreover, foreign exchange controls meant that applications had to be made to import any publications from non-sterling bloc countries: see Fitzpatrick to Assist Sec, Australian-Soviet Friendship League, 15 February 1942, Fitzpatrick Papers, ANL MS 4965, 10145.
[121] NAA: A432/82 1950/428; A432/82 1950/1321.
[122] Power to Inspector, 7 August 1934, NAA: A425/122 36/5523, Cf Brossois to Collector, 15 August 1935, NAA: A425/122 36/5523.
[123] Power to Inspector, 7 August 1934 NAA: A425/122 36/5523, cf Brossois to Collector, NSW 15 August 1935, NAA: A425/122 36/5523.
[124] NAA: A467/1 BUN89/SF42/1. They were removed from the prohibited list towards the end of 1935: Roy Rawson to Theo Lucas, Fitzpatrick Papers, ANL MS 4965, 9906.
[125] Carne to Collector (WA), 28 November 1934, NAA: A467/1 BUN 89/SF42/1; cf Power to Inspector, 7 August 1934, NAA: A425/122 36/5523. If We are Fighting for a Communist Germany is the same publication as We are Fighting for a Soviet Germany, there was also disagreement in relation to this publication.
[126] Carne to WA Collector, 28 November 1924, NAA: A467/1 BUN89/SF42/1; Power to Inspector, 7 August 1934, NAA: A425/122 36/5523; T C Brennan to White 16 July 35 NAA: A425/122 1936/5524.
[127] Power to Senior Inspector ,28 June 1935, NAA: A425/122 36/5303.
[128] Knowles to CG, 2 August 1935, NAA: A425/122 36/5303.
[129] T C Brennan to Minister for Trade and Customs ,16 July 1935, NAA: A425/122 36/5303.
[130] R B Curd (Collector (Queensland)) to CG, 7 April 1936, Knowles to CG, 1 June 36 NAA: A425/122 36/5303.
[131] Jones to Latham, 19 Dec 1933, NAA: A432/86 33/1136.
[132] Simonds to CG, 28 May 1935, NAA: A467 BUNDLE92/SF42/21 34/140/10.
[133] Boniwell (Assist Sec) to CG, 16 June 1935, NAA: A467 BUNDLE92/SF42/21 34/140/10.
[134] Abbott (CG) to Collectors, 14 August 1935, NAA: A467 BUNDLE92/SF42/21 34/140/10; in 1936, however, the matter was re-considered, and importation permitted: NAA: A467 BUNDLE 93/SF42/44.
[135] Knowles to CG, 11 July 1935, NAA: A425/122 1936/5524. For details of the litigation, see Douglas, above n 6.
[136] Simonds to CG, 30 July 1935, NAA: A425/122 1936/5524.
[137] Knowles to CG, 3 June 1936 ,NAA: A425/122 1936/5524.
[138] For Soviet Britain, Power to Inspector 19 September 1935 NAA: A425/122 36/5304; Pollitt's Harry Pollitt Speaks Power to Inspector, 17 September 1935, NAA: A425/122 36/5522; Andrews' The Labor Party and the Menace of War and Robson's How the Communist Party Works (Power to Inspector, 19 September 1935, NAA: A425/122 36/5304) Soviet Power—The Only Way Power to Inspector, 7 August 1934, NAA: A425/122 36/5523.
[139] This scarcely needs documentation. Even before the 1936 liberalisation, Brossois and Knowles both considered that Lenin's Complete Works did not fall within the Regulation. See Brossois to NSW Collector ,19 May 1936, NAA: A425/122 1936/5524.
[140] The Workers' Educational Association, a body with links to the Communist Party, complained that its consignments were delayed while consignments addressed to 'respectable' bookshops were not. This had economic implications: its own bookshop's capacity to compete was adversely affected since other bookshops were able to meet the demand for books on its reading lists before its own bookshop could do so. In a memorandum in relation to the overlap between Customs and Postmaster-General's censorship, William Stanton noted that all printed matter in packages addressed to particular addresses (those of Radical bookshops) was inspected by the Customs authorities. Stanton, Inspector, Postal Services Branch to Dep Dir P&T, 8 March 1934, NAA: A432/86 34/140/PT5.
The use of addresses as a basis for enforcing the prohibitions had always been part of the government's enforcement strategy. Once the proclamation of February 1921 had been made, the Commonwealth Investigation Branch immediately began preparing a list of suspect addressees: Cain, Origins, above n 1, 196–9.
[141] For details, see NAA: A425/122 26/5523. While seizing school textbooks seems both stupid and gratuitously petty, it was arguably justifiable given the law as it then stood, and given that one would expect such textbooks to include an even greater element of propaganda than schoolbooks in general. Seizing a textbook on a subject as innocuous as Botany was probably going too far, but, acting with the wisdom of hindsight, we should not forget Zhdanov and Lysenko. (In any case, the school books were returned.)
[142] Several of these volumes included particularly bloodthirsty exhortations and thoroughly earned their designation as seditious, but there were exceptions. Knowles could not resist the observation, in relation to one example of the happy peasant genre of 1930s Soviet Culture, that:
One cannot imagine local revolutionaries singing –
'Carefully
Pull out the weeds,
Study the soil
And its needs
Guided by science
Put your reliance
In the best choosing of seeds!'
Knowles to CG, 3 June 1936, NAA: A425/122 36/5525. The song is to be found in Proletarian Songs of the Soviet Union. People returning from visits to the Soviet Union regularly had books, slides and films seized: Macintyre, above n 1, 368.
[143] The Herald (Melbourne), 9 October 1934, 22. The report states that 'under a new regulation' booksellers 'are not allowed to return books to the publisher after the banning'. The 'new regulation' (presumably the Customs (Prohibited Imports) Regulations of 1934) made no difference to the rights of booksellers to return books. The article cites no cases of importers not being allowed to return books. Rather, it cites a case where a private individual (not a bookseller) had imported 6 copies of a book which was banned for the first time subsequent to its arrival. These had been confiscated and no compensation given. The report does not indicate whether the person had sought the right to return the work to the publisher or other consignor.
[144] Quoted, Simonds to CG, 15 October 1934 ,NAA: A425/122 35/707.
[145] Minute, 16 October 1934 , NAA: A425/122 35/707.
[146] Commonwealth, Parliamentary Debates, House of Representatives, 27 March 1935, 351.
[147] ALP MHR for Bourke, and committed civil libertarian.
[148] Commonwealth, Parliamentary Debates, House of Representatives, 27 March 1935, 351–2.
[149] NAA: A425/122 1935/5652.
[150] See note to letter of 29 April 1936 NAA: A425/122 1936/5524.
[151] Moran, an activist in the Unemployed Workers' Movement, and later a union organiser, was one of the CPA's most effective speakers. Frequently arrested, he was an accomplished courtroom performer.
[152] NAA: A425/122 1936/5524.
[153] Agenda No 1575, par 22 NAA: A467/1 BUN21/SF7/3.
[154] Question Hurbert Lazzarini (ALP, Werriwa) to White, Commonwealth, Parliamentary Debates, House of Representatives 2 October 1935, 460–1.
[155] NAA: A425/122 36/5522.
[156] The saga is to be found in NAA: A425/122 1936/5308.
[157] NAA: A425/122 37/9231. In this case, delay could have been to the importer's advantage, given the policy change of 22 May 1936. (There is, however, nothing to suggest that the book was ever returned.)
[158] Workers' Weekly, 24 November 1936.
[159] All propaganda published by the Federation of Communist Anarchists (!) of Germany; all literature published by the Red International of Labor Unions, all Communist propaganda of the Communist Party of Great Britain. In addition, about thirty periodicals were banned: see list: NAA: B13/0 1944/2540.
[160] See the files on International Literature (NAA: A425/122 36/5303) and International Press Correspondence (NAA: A425/122 36/5307).
[161] NAA: A425/122 1936/5308. (If Moran had been advised prior to 15 December 1936 that if he wanted the book, he should enter an action to recover it, Customs would have been entitled to keep the book, but there is no evidence on the file that he ever was so advised.)
[162] McKissock to Collector (Vic), 13 December 1935, NAA: A467 BUNDLE 93/SF42/44.
[163] Abbott to Sec, A-G's, 8 January 1936, NAA: A467 BUNDLE 93/SF42/44.
[164] Simonds to CG, 31 January 1936, NAA: A467 BUNDLE 93/SF42/44.
[165] The file reports that 5 copies of Moscow Daily News had been returned to the Victorian Collector on 31 January 1936. These presumably were not McKissock's.
[166] NAA: A467 BUNDLE 93/SF42/44.
[167] However, the effective abandonment of the censorship of political publications coexisted with an intermittent willingness to censor radio broadcasts. The targets of these attempts went well beyond the CPA, the best known examples being the temporary closure of 2KY (the NSW Labor Council owned station) in December 1938, and insistence that Judge Foster amend a speech (on censorship) which he proposed to deliver over the ABC. In 1938, commercial stations were required to submit all scripts of proposed broadcasts about international relations to the Postmaster-General's Department. See Rupert Lockwood, War on the Waterfront (1987) 172–6; Fitzpatrick Papers, ANL MS 4965, 17,904.
[168] The 'United Front' period was characterised by a shift in party strategy. In the early 1930s, the CPA, like the Comintern, had sought to distance itself from 'reformist' parties and organisations, reserving much of its most bitter invective for attacks on the ALP and ALP-controlled unions. Following the rise of Hitler, the Comintern gradually shifted towards a strategy which envisaged cooperation between communists and others who, while not being communist themselves, might nonetheless share some of the same goals as the Comintern and its affiliated parties. This cooperation extended to the party's being willing to work with the leaders as well as the rank and file of leftish organisations. The ALP was unreceptive to overtures from those who shortly before had condemned the party as 'social fascists'. Within the unions, the CPA had more success, its pragmatic militancy winning it considerable support. The shift in strategy had been completed by 1936. For details, see Alistair Davidson, The Communist Party of Australia (1969) 72–97; Macintyre, above n 1, 244–87.
[169] From 1932 onwards, there was a steady decline in the frequency of arrests of leftist activists for public order offences: Douglas, above n 1.
[170] As early as 1927, the Party had published Stalin's The Theory and Practice of Leninism. In the 1930s, it produced editions of a number of the banned works of Lenin. One reason for the Commonwealth's reluctance to prosecute was pragmatism. See, eg, Knowles' advice in relation to a suggestion that the Barrier Daily Truth be prosecuted: a Broken Hill jury would never convict, and even a Riverina jury would be unlikely to be unanimous: Knowles to T C Brennan, 26 August 1935, NAA: A432 1935/1215.
[171] Crimes Act 1914 (Cth) s 30F.
[172] Cain, Origins, above n 1, 224; Watson, above n 1, 82. Productions of the play were banned in states including New South Wales, Victoria and Western Australia. Queensland advised that in that state, theatre bans were a matter for local governments. The bans were circumvented by the presentation of 'private' performances. Some 10,000 people are alleged to have attended private performances in New South Wales: Workers' Weekly, 25 June 1937.
[173] See, eg, Duhig, Report of Proceedings of Deputation, 15 NAA: A467 BUNDLE21/SF7/3.
[174] Workers' Weekly, 14 February 1930, 1. It concluded by calling for the 'overthrow of the "Labor" government which is so ably carrying on Bruce's work'.
[175] Space does not permit a comprehensive summary. See generally John Sendy, Comrades Come Rally: Recollections of an Australian Communist (1978) 11–12. Bernice Morris faithfully served the Party, but admits (and regrets) that she never mastered the intricacies of Marxism: Between the Lines (1988). One writer who does seem to have been influenced by Marxist literature was Rawling: John Pomeroy, 'The Apostasy of James Normington Rawling' (1991) 37 Australian Journal of Politics and History 21, 32. However, under the 'scholarly literature' exemption, Rawling would have had access to the material in question, anyway. Besides, while an early recruit, his subsequent history provides warnings about the reliability of those attracted to the Party by reason rather than emotion.
[176] See, for instance, the contributions of Frederic Eggleston (self-styled individualist and former non-Labor Victorian Attorney-General), and J M Atkinson (of the Henry George League) in Report of Proceedings of Deputation, 13, 22 NAA: A467 BUNDLE21/SF7/3. In the 1926 debates on the Crimes Act 1926 (Cth), Francis Forde (ALP, Capricornia) cited instances of communist propaganda receiving widespread publicity in Nationalist Party propaganda: Commonwealth, Parliamentary Debates, House of Representatives, 17 February 1926, 981. In 1932, Richard Casey (UAP, Corio) stated that he made it his business to read the Workers' Weekly and the Red Leader and advised fellow MPs to read these and other communist publications to gain insight into the nature of the communist threat: Commonwealth, Parliamentary Debates, House of Representatives, 23 May 1932, 1173.
[177] Bernie Taft, Crossing thePartyLine: Memoirs of Bernie Taft (1994) 45.
[178] BA Santamaria, Santamaria: Against the Tide (1983) 7
[179] Advice on Evidence, 9 NAA: SP185/1 Box 69. Communist literature was also drawn on by speakers supporting the Crimes Bill 1926: see Commonwealth, Parliamentary Debates, House of Representatives, 28 Jaunary 1926, 460 (Latham), and by speakers supporting the Communist Party Dissolution Bill 1950: see Commonwealth, Parliamentary Debates, House of Representatives, 27 April 1950, 1999–2001 (Menzies); 10 May 1950, 2405–6 (Henry Pearce (Lib, Capricornia)), 11 May 1950, 2491–2 (John Cremean (ALP, Hoddle)); 2515–6 (Bruce Wight (Lib, Lilley)); 2554–5 (Leonard Hamilton (Lib, Canning)); 16 May 1950, 2640 (Lawrence Failes (CP, Lawson)); 1 June, 1950, 3573 (Hugh Robertson (CP, Riverina)); Senate, 6 June 1950, 3698–3700 (Sen Ivy Wedgwood (Lib, Vic)); 19 October 1950, 1039 (Sen Douglas Hannaford (LCL, SA)).
[180] Davidson, above n 168, estimates the Party's membership in 1934 as 2,840, and cites 4,000 as the Party's membership prior to its being banned in 1940 (at 69n, 82). The CPA did not stand candidates in the 1937 general election, and was banned in 1940. In the 1934 Senate elections, it won 2.2% of the vote nationally: Colin A Hughes and Bruce D Graham, A Handbook of Australian Government and Politics (1968), 352. (This was less than the percentage won by the Social Credit Party.) One reason for believing that, on balance, communist literature may have assisted the Party is that even if it alienated far more people than it converted, the pool of potential converts to the Party was much greater than its pool of supporters.
[181] See, for example, the 1935 Commonwealth parliamentary debate on censorship: Commonwealth, Parliamentary Debates, House of Representatives, 27 March 1935, 326–55.
[182] See, eg, Eggleston, Spicer Report of Proceedings of Deputation, 10 September 1935, 13, 19 NAA: A467/1 BUNDLE 21/SF7/3. Just occasionally, one senses that those using this argument were slightly dishonest, their real objection to censorship lying in their hope that some of the censored literature would appeal to the good sense of Australian workers.
[183] The change in party line did not go unnoticed. It underlay Knowles' proposals for re-writing the Regulation so that it did not extend to anti-Fascist propaganda. Power was struck by the change in tone of International Literature between 1934–35: 'I have read this copy [Jan 35] and the three preceding numbers carefully and am of the opinion that the policy of the directorate of the magazine has changed considerably in the past twelve months. Earlier copies contained articles and cartoons that were rabidly revolutionary but recent issues have been free from these objectionable features. Exception might, perhaps, be taken to some of the cartoons but these have little or no application to conditions in Australia and their significance is obscured if not lost to local readers.' Power to Senior Inspector, 28 June 1935, NAA: A467/1 BUN94/SF42/24 34/140/13.
[184] See, for instance, the report of the discussion between White and an anti-censorship deputation, 10 September 1935: Report of Proceedings of Deputation, 15–6 NAA: A467 BUNDLE21/SF7/3.
[185] This may explain why anti-censorship campaigners argued that the problem of seditious literature (insofar as there was one) should be handled through the courts rather than administratively: see Duhig, Report of Proceedings of Deputation, 15–6 NAA: A467 BUNDLE21/SF7/3. The anti-censorship argument to the effect that the issue should be tried by a court confused the question of whether the status of a book should be resolved by a court with the question of whether it should be resolved by a court constituted in a particular way and applying a particular standard of proof. As White pointed out, it was always open for the importer of a seized book to initiate a court action into the status of the relevant work: Minutes of meeting between G Fitzpatrick, R Hall and TW White, 6 NAA: A467 BUN21/SF7/1.
[186] McMahon Ball acknowledged Menzies' contribution in The Herald, 16 June 1937, implying that this was a consequence of a 1935 decision that the Attorney-General was to have the final say in relation to whether a publication was prohibited: 'Still Political Power over Books Some Critics Say', The Herald (Melbourne), 16 June 1937, 2. This analysis is incomplete: even after 1935, Knowles was generally endorsing recommendations from Customs. (And in 1936 White was claiming that he made the final decision.) What seems to have changed his recommendations was the 1936 Cabinet decision. Coleman, above n 50, 84 states that Menzies managed to wrest the relevant power from White in 1937, which does not explain the liberalisation which had already taken place and in any case seems wrong. Martin who emphasises Menzies' role in the liberalisation process does not discuss the process and by virtue of his (acknowledged) reliance on Coleman, perpetuates some of Coleman's errors: Martin, above n 56, 200–2. I have been unable to track down material bearing on Menzies' contribution to the 1936 change in policy. (It would be in character if he did, and the fact that his permanent head suggested a similar amendment also suggests this.)
[187] The formal ending of political censorship (except in relation to literature advocating terrorism) coincided with reforms to 'moral' censorship. These provoked motions in the Senate and the House of Representatives to disallow the Regulation (which had to be disallowed either in its entirety or not at all). In the course of the lengthy debates which followed, the fact that the Regulation also abolished political censorship (except in relation to material which advocated terrorism) was not even mentioned. See Commonwealth, Parliamentary Debates, Senate, 4 April 1984, 1161–86, 1219–33; 5 April 1984, 1241–60; 2 May 1984, 1457–64; 10 May 1984, 1891–5, 1938–7; 29 May 1984, 2059–90; ibid, House of Representatives, 4 June 1984, 2840–55. The only two mentions of the changes to political censorship were by Senator Brian Harradine (Ind, Tasmania) (ibid, Senate, 2 May 1984, 1458) and Sen Gareth Evans (ALP, Vic; Attorney-General) (ibid, Senate, 29 May 1984, 2073) who treated it as of no importance.
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