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Australian Journal of Legal History |
ROGER DOUGLAS[*]
The prosecution of William Fardon Burns took place against two cold-war struggles and relates to both. It arose from articles in the communist paper, Tribune, urging ‘resistance’ to Australia’s involvement in the Korean war, and it coincided with the passage of the Communist Party Dissolution Act 1950 (Cth), and the subsequent constitutional challenge to the legality of the Act. It was a classical political trial in a number of senses. It was political in the sense that the decision to prosecute was political. It was also political in the sense that Burns’ defence was a political one. And like many political trials, its outcome was unclear. On the whole, the Commonwealth succeeded, but it lost on one potentially important legal issue, and came close to losing altogether. Moreover, while Burns was imprisoned, he was able to use the trial as a forum for communicating a critique of the war to a far wider public than the readership of Tribune.
On 24 June 1950, North Korean forces crossed the 38th parallel, the boundary between North and South Korea.[1] The next day, the United Nations Security Council (the Security Council) passed a resolution condemning the attack. It called on the North to withdraw its forces, and sought the assistance of member nations in giving effect to the resolution. Two days later the Security Council passed a further resolution recommending that member nations provide such assistance as might be necessary to enable South Korea to repel the attack. On 7 July 1950 the Council authorised the United States and other countries to assist the Republic of Korea in its struggle against the North Korean forces. The assistance was to be led by a commander designated by the United States, and was authorised to act under the flag of the United Nations.[2] In response to the resolution of 27 June, the Australian government decided to contribute a number of ships, one RAAF squadron, ground troops and assorted supplies.[3] These decisions were generally supported by the Labor Opposition, and by the general public, although more by Liberal-Country Party voters than by Labor voters.[4] Of those who had an opinion as to the origins of the war, at least 80% blamed the North Koreans and their allies.
The ACP naturally opposed any resistance to the North Korean forces. In July 1950, a series of articles appeared in Tribune, the Party’s Sydney bi-weekly.[5] These were predictably hostile to Australia’s involvement in the war. In the first of the articles, the North Korean invasion of South Korea was described as a response to incursions into the North by the puppet government of Synghman Rhee. American support for the South carried with it the risk of a third world war. Menzies’ support for the Americans was ‘a major step in the capitalist sell-out to America and its criminal war’. ‘Australians need peace, not war. Australian lives must not be sacrificed in war to make the world safe for the American millionaires’. Australians should fight for withdrawal of foreign forces from Asia; for the rights of self-determination of the people of Korea, Malaya, and Vietnam; for recognition of the government of the People’s Republic of China; and for a world referendum against the atom bomb. The second article developed similar themes. America and its allies should withdraw from Korea, and emulate the Soviet Union’s policy of non-interference in the internal affairs of other states. The purported decision of the United Nations Security Council to authorise intervention was illegal. The third article praised the Seamen’s Union’s opposition to the war as patriotic. The war was a war of aggression and imperialism. It would entail military and civilian conscription, repressive legislation, and surveillance by a military-dominated security service. It would
mean the sacrifice of Australian lives in an unjust cause, and the sacrifice of living standards as well. To pay for the war, and the superprofits of the warmongers, lives and living standards will be ruthlessly sacrificed.
For the publisher of the articles to be guilty of the offence of publishing seditious words,[6] the Commonwealth had to establish that the words were expressive of a seditious intention,[7] a ‘seditious intention’ being defined as an intention to affect any of a number of listed purposes, including exciting
disaffection against the Government or Constitution of the Commonwealth’, or promoting ‘feelings of ill-will and hostility between different classes of His Majesty’s subjects so as to endanger the peace, order or good government of the Commonwealth.[8]
Section 24A(1) was, however subject s 24A(2) which made it lawful for a person to criticise laws and policies with a view to promoting lawful change or removing sources of conflict between classes of subjects, provided that the person acted in good faith.
The articles used somewhat intemperate language. Western policy was described as ‘imperialist, aggressive and criminal’. Those responsible for Australian involvement in the war were ‘the real traitors to Australian interests’. But use of intemperate language is and was an ubiquitous feature of Australia political life. Moreover, the articles were relatively silent in relation to what their audience was supposed to do. With a little imagination, one could find interpret some of the language in the Tribune articles as a call to active resistance. The first article contended that ‘All Australians who love their country should resist this [Menzies’] policy to the utmost’, and urged Australians to ‘fight’ for peace and self-determination. The second article referred to world-wide protest strikes and demonstrations. The third referred favourably to the decision by the Seaman’s Union to refuse to man ships carrying supplies to the Western forces in Korea.[9]
Yet at the same time the articles were characterised by a degree of moderation. The first article did not detail the form that ‘utmost resistance’ should take, nor what was involved in the ‘fight’ which Tribune called for. The second article was more specific:
The members of Parliament should be bombarded with letters and telegrams. Press the Labour leaders to use their Senate majority against the war policy.
This was scarcely a call to man the barricades.
The third article called for rather more than struggle-by-petition. While it did not expressly call upon unionists in general to resist military aid to the governments of South Korea and Malaya, it certainly implied that such action was worthy of emulation. However, the seriousness of the exhortation should be read against the fact that the government ultimately decided to take no action against the Seamen’s union for its stance (which it was subsequently to tone down – in form if not in substance).[10]
If actual industrial resistance could be tolerated, it is not clear why support for that action should be treated as a threat.
The phrase which was to receive most attention in the subsequent prosecution was the slogan ‘Not a Man, Not a Ship, Not a Plane, Not a Gun for the Aggressive, Imperialist War on Korea and Malaya’, which appeared in the first and second articles, and – in a slightly varied form – in the third. A variant had appeared as headline to a May 1950 Tribune article following Menzies’ statement that he would seriously consider a British request for assistance in Malaya.[11]
On its face, the slogan did not necessarily imply anything other than an exhortation to oppose the war by lawful methods. However, it was a time-honoured slogan which came with a history capable of affecting its meaning both to communists and to their adversaries. The government’s planning for the contingency of a war between the Soviet Union and the United States and its allies had proceeded on the basis that the Communist Party would actively resist the allied effort by legal and illegal means.[12] Moreover, given the Party’s unquestioning commitment to the Soviet Union,[13] it was not unreasonable to assume that the Party would favour any action – whether legal or illegal – which might assist a Soviet ally under threat from the West.
But another construction could be placed on the three articles. By 1950, the Party was showing signs of bureaucratic ossification, and of the ritualism which frequently accompanies this. It is arguable that the three articles were symptoms of a party torn between revolutionary ideals and a complete inability to do much to achieve them, other – perhaps – than bombarding Senators with form letters and reports of unanimously endorsed resolutions. They were arguably a substitute for militancy rather than a call for it.
This was not an interpretation which could be publicly espoused by the Party and it was not the view of the government, which made an almost immediate decision to prosecute William Fardon Burns, the publisher of Tribune, for publishing seditious words. It was to be the recently elected Menzies’ government’s first sedition prosecution, and in deciding to prosecute, the government could take heart from the convictions of Gilbert Burns and Lance Sharkey for uttering words which indicated questionable loyalties but little else.[14]
Around the time of the decision to prosecute William Burns, the Attorney-General’s Department had decided against prosecuting a number of other denunciations of the war. In July 1950, the Queensland Police Commissioner drew to the attention of the Crown Solicitor’s office allegedly seditious comments made by two communists, V J Englart and J P Malos, in the course of attempts to sell the Queensland Guardian. These were critical of Australian involvement in the Korean war, and of Menzies’ failure to deliver on his promise to put value back into the pound. Waugh, the Crown Solicitor, advised that most of the statements were completely harmless and that the only controversial ones did not advocate active disloyalty or any attempt to frustrate the government’s attempts to implement its policies.[15]
At about the same time, Waugh assessed a pamphlet, Hands Off Korea, which argued that the Korean war was an imperialist exercise on the part of the US government, designed to overthrow the People’s Democratic Republic of Korea in order to give it an advance base for war against China and the Soviet Union. Australia was involved only because Menzies had acted at the behest of the United States in committing its armed forces to the conflict. I urged that:
[b]y mass meetings, demonstrations, signatures to the World Peace petition against the atomic bomb, and other forms of activity the people must impose their will for peace on the governments that are heading for war.
The pamphlet concluded with a series of slogans, similar to those which had been raised in Tribune articles. Waugh concluded that while the pamphlet could be said to be calculated to excite hostility against the government, it did not advocate violence to achieve this end. A prima facie case for publishing seditious words could not be established. Bailey, the Solicitor-General, agreed.[16] It is difficult to determine what distinguished the pamphlet from the Tribune articles. The pamphlet seems to have contained fewer ‘ambiguous’ calls to action than the articles, but if the pamphlet did not warrant a prosecution, it was hard to see how the articles could do so.
The government nonetheless decided to prosecute William Burns on three counts of publishing seditious words.[17]
I have not been able to find who took part in the making of the relevant decision, nor why they made it. It seems reasonable to conclude that the government was advised that it had some chance of success.[18] It also seems reasonable to assume that the government was under pressure to prosecute.[19]
It also seems reasonable to assume that the government would not have been inhibited by concerns for communists’ civil liberties in the event of its having concluded that prosecution would otherwise be politically expedient.[20] But the prosecution should be seen against the background of a string of suggested prosecutions before and after the Burns case in which its legal advisers had decided against prosecution. One possible reason for prosecuting Burns may have lain in what appears to have been a policy underlying sedition prosecutions: to aim for relatively high profile targets[21] rather than rank and file. In Burns’ case, the target was probably Tribune rather than Burns himself. If it succeeded, other ‘inflammatory’ articles might also attract prosecutions.[22] Muzzling Tribune would achieve far more than the trial and conviction of those responsible for the allegedly seditious doggerel, statements and pamphlets which were referred for legal advice, but which failed to lead to prosecutions.
The hearing of the charges began on 10 August 1950 in the Special Federal Court in Sydney.[23] The case was heard before Magistrate Isles, who in 1949 had presided over Sharkey’s committal hearing. J W Shand QC with H J Henchman appeared for the prosecution. Burns was represented by Fred Paterson, instructed by Jollie Smith and Co, a venerable firm of communist solicitors.[24]
Both Hnechman and Paterson had been involved in previous sedition trials. Henchman had acted as junior counsel in the first instance prosecution of Sharkey. Paterson had had involvment both as a defendant and as counsel. In 1930 he had been charged under the sedition provisions of the Queensland Criminal Code and acquitted.[25] He had been less successful in his defences of Gilbert Burns and Lance Sharkey, but he had done his best to use the trials as political forums and his legal arguments had nearly prevailed in Gilbert Burns’ appeal. That his arguments had failed may have reflected the political rather than the legal weakness of his cases. In the late 1940s, it was not easy to put a favourable gloss on statements which could easily be taken as confirming the widely held suspicion that the ACP would welcome a Soviet invasion of Australia, even if it regarded this as regrettably improbable. But unlike Gilbert Burns and Sharkey, William Burns had not suggested fighting on the side of the Soviet Union, or welcoming Soviet invaders. While Tribune was effectively supporting what was widely perceived as communist aggression, it was doing so in relation to a distant country, and in a political climate in which there was considerable support for the proposition that Australian troops should not be sent to fight for alien and somewhat unsavoury governments in distant lands.[26]
On Burns being formally charged, Paterson argued that the prosecution had failed to provide adequate particulars in that it had failed to set out the respects in which the articles were seditious. Shand argued that there was no need to do so. It was enough that the informations set out the articles which were the basis for the charges. The magistrate, Mr Isles, ruled in favour of the prosecution. Burns then opted for summary trial and pleaded not guilty, following which Shand outlined the case for the prosecution. The articles fell within either paragraph (g) of Crimes Act 1914 (Cth) s 24A(1) (the promotion of ill-will between classes of subjects) or paragraph (d) (disaffection towards the government or constitution of the Commonwealth). It was a relevant consideration that Australia was involved in a war pursuant to its international obligations, and that this was a time of international tension. There was no attempt to interfere with freedom of speech. He then sought to introduce as evidence a certificate from the Minister for External Affairs in relation to the Korean war. Paterson objected: while the certificate was valid as evidence of the existence of the government of South Korea, in other respects it was making highly questionable claims. A certificate could not be conclusive evidence that North Korea had attacked the South, nor of the validity of the Security Council resolution under which the Western powers had entered the war. Mr Isles ruled that the certificate in its current form could not be admitted, and Shand agreed to submit a re-drafted version of the certificate.
The prosecution relied on only two witnesses, William Sweeney and Arthur Ethell, both Commonwealth Investigation Officers. Their evidence related to the purchase of copies of Tribune and an interview with Burns in which he admitted that he was the publisher of Tribune, the person referred to in the publisher’s imprint, and that the articles had been printed with his approval. Sweeney, under cross-examination, admitted that he had made no inquiries as to who was editor of Tribune. (He did know who the printer was.)[27] The defence called no evidence. Paterson then argued that the prosecution had failed to make out its case. There was no evidence on which the court could be satisfied that Burns had known the content of the articles. He could not therefore be said to have published them with the requisite intent. Even if Burns were to be found to have published the articles, knowing their content, the court could not be satisfied beyond reasonable doubt that his intention was seditious. The articles criticised the government, but a person ‘had the same right to criticise fighting in Korea and the Liquor or Gaming Acts, or any other legislation’. When the magistrate asked whether this applied to a decision to go to war, Paterson submitted that this was ‘as much open to criticism as a decision on, say, drinking hours’.[28]
The articles did not advocate resistance to attempts to prosecute the war. Further, in deciding whether the articles were seditious, it would be necessary for the court to decide whether the government’s actions in Korea were in accordance with Commonwealth law. In particular, while the UN Charter had been adopted by Parliament, the intervention in Korea had not been pursuant to the Charter. (It had not been approved by the Security Council with the affirmative vote of the Soviet Union, which was boycotting meetings of the Council in protest against the non-recognition of the People’s Republic of China as the government of China.)[29]
Shand argued that the last argument as irrelevant, since this was not what Burns had contended. Paterson then pointed out that one of the charges against Burns related to the contention that Australian involvement was in flagrant violation of the UN Charter. In reply, Shand argued that there was no evidence that Burns had known that the UN action was invalid and that this was why he had published the articles. In any case, both Houses of Parliament had approved of aid being given. (Paterson objected that this would not have made otherwise invalid behaviour valid.) The articles made it clear that opposition was not to stop short of breaking the law. (Paterson pointed out that since there were no laws requiring support for the war or penalising statements prejudicial to the war effort, Burns could not be said to be advocating disobedience to any law.)
The magistrate, Mr Isles, found that all three articles were seditious and that Burns had published all three.[30] To determine whether the words evidenced an intention to arouse disaffection against the government, he relied on the observations of Latham CJ and Rich J in Burns v Ransley.[31] He found that the words were not mere criticisms of government policy, made in good faith with a view to the rectification of an error. They were ‘expressive in the most emphatic and clearest possible terms of an intention or design to promote in the minds of the people a feeling of hostility and disloyalty to the Government’. They were made in the context not of a possible war, but of an actual one. He found support for his conclusion that the statements were seditious both in the language used to describe the war, and in the explicit and implicit calls to action contained in the articles:
What could be more strong, more clear advocacy of non-support or opposition to a Government in relation to a war than the words:
‘Not a man, not a ship, not a plane, not a gun for war on the colonial liberation movement of Asia’; or ‘for the aggressive imperialist war on Korea and Malaya’; or ‘Seamen’s Patriotic Lead. Stop War in Korea,’ which was printed in the ‘Tribune’ of July 12?
It did not matter whether the United Nations Security Council had exceeded its powers when it passed the resolutions to which the Australian government had responded.
I cannot see that I am concerned with the legality or illegality of the United Nations’ actions in respect to the United Nations Charter.
The fact is that the Government of this country has taken certain action which involves its participation in an armed conflict.
That is a decision which, whether rightly or wrongly made, could affect this country’s existence.
In my opinion, whatever the decision, it does not afford justification for the words published by the defendant and does not affect my finding that the words were seditious.
However, the Crown had proved that Burns had knowledge of only one of the three articles (that of 12 July).
In mitigation, Paterson argued that a fine would be the proper penalty. Burns had worked on the wharves since February 1948. He had agreed to be publisher of Tribune when he worked for the paper as a reporter prior to 1948. From these facts the inference might be drawn that Burns did not write or approve the article. Mr Isles was not convinced. There had been recent convictions for ‘similar’ offences, and that these ought to have deterred people from making subsequent seditious statements.[32] ‘The country had decided to take part in a war and in such circumstances was entitled to command loyalty, which made sedition most serious’.[33] He sentenced Burns to 9 months imprisonment. Burns appealed, and was released on bail of £500 with a similar surety. It was by no means certain that an appeal would fail. The decision that the words were seditious was arguably consistent with Rich J’s loosely framed test in Burns v Ransley, but it seemed to go beyond what Latham CJ envisaged as seditious. Even placing an uncharitable interpretation on the language in question, it is difficult to see how it could be said that Burns was advocating that the Government should not only be opposed, but if possible destroyed.
But Waugh, the Crown Solicitor, suggested that the Commonwealth might also consider an appeal against the acquittals and expressed concern about the implications of the relevant rulings: ‘There may ... be other seditious articles in the “Tribune” and if Burns cannot be prosecuted the question will arise as to who can.’ Bailey recommended against an appeal. The question could be raised in the context of the hearing of Burns’ appeal.[34]
The hearing of the appeal in the Court of General Sessions began on 13 November before Judge Berne, as a trial de novo. The trial did not progress in the way the Commonwealth would have liked.[35] His Honour immediately made it clear that he was concerned about several aspects of the Commonwealth case. In particular, he was concerned that the Australian involvement in Korea might be illegal, in which case Burns might not be guilty of sedition. When the hearing opened, Judge Berne indicated that he wanted to know whether the Commonwealth was at war in Korea, given that Ministers were claiming otherwise, while it was clear that Australians were involved in hostilities. If Australia was involved in war, he wanted to know whether its involvement was legal. He doubted whether the war (if there was one) could be legal, since it had not been declared by the King. He also wanted to know what statutory authority existed for sending troops overseas. He also queried the status of Australia’s involvement in Malaya (which had also been discussed in the Tribune article). He doubted that it was legal to use Australian troops to quell uprisings in other countries.[36]
Following this argument, Paterson stated that he wished to re-call the two prosecution witnesses who had given evidence at first instance. Judge Berne was not impressed by their methods or their testimony. He was critical of the fact that Sweeney had let Ethel see the notes he had made of his interview with Burns.[37] Sweeney’s memory ‘seemed to be very vague about things in general’, and His Honour was ‘not the slightest bit impressed with’ Ethel’s[38] evidence.[39] Paterson then called Burns as a witness. Burns testified that he was a waterside worker and that he had not written anything for Tribune since January 1948. He exercised no supervision over the paper, and had imagined that as registered publisher his sole role was to be the nominal defendant in the event of a libel action.[40] Cross-examination produced a series of altercations between Shand and Judge Berne. The first related to whether Shand could address Burns as ‘Burns’. Judge Berne said that this was insulting and derogatory. ‘In this court you will address appellants or defendants as either “appellant” or “defendant” or “Mister”’. He said that Dwyer J had checked Shand on that very point not long before. Shand objected that it had in fact been he who had checked Dwyer J, and cited precedent to justify his choice of language.[41] Later Judge Berne had warned Burns that he might incriminate himself if he took a certain line, and that he need not answer a question from Shand. When Shand expressed his anger at this intervention, Judge Berne reportedly said ‘It is perfectly obvious that the Commonwealth Government is out to get this man’, and when Shand protested that he had no right to say that, Judge Berne repeated his statement. After this altercation, Shand announced that he did not propose to ask any further questions, to which Judge Berne replied: ‘I don’t care what you do, Mr Shand’.[42] At the end of his evidence, Judge Berne stated that insofar as there was a conflict of evidence between Burns’ evidence and that of the police witnesses, he had no hesitation in accepting Burns’.[43]
This meant that Burns would be guilty only if knowledge of the contents of a seditious article was not an element of the offence. Shand argued that knowledge was not required since state legislation treated registered publishers as legally responsible for the contents of what they published.[44] This unconvincing argument[45] did not impress Judge Berne.
Even if it had merit it could not justify a heavy sentence:
I hope the Commonwealth does not expect me to give a man nine months gaol because he was technically liable. It would be asking too much to impose such a punishment when he was only the nominal publisher.[46]
Shand was unwilling to make any concessions:[47]
If Burns is not really connected with this paper, there is nobody to be blamed but himself.
Judge Berne, however, wanted concessions:
Is the Commonwealth pressing for a conviction? If it is, I say now that I would be shocked. The propaganda is that all Communists are liars. If I make a mistake it would be better to make it in the defendant’s favour than show an unconscious bias against him. I have no sympathy for this man, but I don’t want to do him an injustice.[48]
It was becoming clear that unless Shand could come forward with more convincing arguments, Burns was either going to be acquitted, or – at worst – given a very light sentence.
After a submission by Paterson to the effect that the UN action in Korea was invalid, Judge Berne asked Shand to put certain questions to the Commonwealth. Shand replied that the government might choose not to answer some of them on the grounds that they were irrelevant. Judge Berne replied that he would not be dictated to by the Commonwealth and in atmosphere of acrimony between Judge Berne and Shand, the matter was adjourned for the day.[49]
Next morning legal argument resumed, as acrimonious as ever. In the course of argument about whether a publisher could be convicted in the absence of knowledge of the contents of a seditious article, Paterson gave the example of a publisher stricken insane who might be charged with publishing seditious articles while in an asylum, and asked how such a person could be found guilty. Judge Berne replied: ‘Mr Shand says he could be. He’d probably hang him’.[50] Further acrimony arose in relation to a number of questions which Shand had asked be submitted to the Supreme Court for answers. These included whether words could be seditious if no state of war existed; whether the prosecution must show personal intention with regard to publication; and whether the judge had erred in rejecting two issues of Tribune. The last question was: ‘Whether his Honour’s conduct of the trial has resulted in the respondent being deprived of natural justice’. Judge Berne demanded to know the basis for the alleged denial of natural justice. Shand proceeded to provide details including the judge’s interference with his cross-examination of Burns, and his statements that the Commonwealth was clearly out to get Burns. Judge Berne denied having used those words. Shand said ‘I am not misreporting you. Every reporter here knows I am right’.[51] Judge Berne said that he agreed with some of Shand’s submissions and would not clutter the Full Court with them, but he refused to put the natural justice question to the Supreme Court.[52]
Shand then gave the Court the Commonwealth’s written answers in relation to the issues raised by Judge Berne on the previous day. The Commonwealth’s involvement in Korea was described as pursuant to Chapter 7 of the United Nations Charter. Australia was at war de facto, and, depending on how the Charter was interpreted, de jure. Involvement in Malay was for the purposes of helping His Majesty’s government suppress an armed insurgency. There had been no declaration of war, but authority for sending forces was provided by the Charter of the United Nations Act, 1945, the instrument of ratification of the Charter deposited on November 1, 1945, the Defence Act, the Naval Defence Act, and the Air Forces Act, and under the provisions of appropriations made by Parliament.
Judge Berne objected to the language in which some of the questions had been put by Shand to the Commonwealth, stating that their wording did not correspond to that which he had wanted put. He described Shand’s handling of the case as ‘scandalous’.[53]
During lunch, the judge read the Commonwealth’s answers. On the resumption of the hearing, he reported that he was now persuaded that there was a de facto war, that it and Australia’s involvement in it were legal, and that the article was therefore seditious.[54] However he reiterated his objections to the language in terms of which one of his questions had been transmitted to the Commonwealth. The question put to the Commonwealth had been: ‘What is the nature of the warlike operations at present north of the 38th parallel?’ He complained that if he had asked the question in those words ‘a sinister construction could be placed on it’. Shand contended that he had indeed asked the question in those terms. He then produced a copy of the transcript to prove this.[55] Judge Berne demanded to know how Shand had managed to get a copy, when he (Berne) had not yet seen one. Shand refused to answer this question and continued reading.[56] Judge Berne ordered Shand to cease implying that he was a liar.
I have a clear recollection of what I said. It is no use your junior checking up with the transcript. I find it most offensive. If he has the temerity to do that I will order him out of Court.[57]
Shand replied that if so, he would go with him. His Honour replied that: ‘That would not upset me very much’. [58] Shand then repeated his claim. Judge Berne then warned him that if he continued to contradict him, he would order him out of court. Shand repeated his allegation, whereupon Judge Berne said: ‘I will not allow you to contradict me. I will order you out of court.’ Shand then left. Henchman announced that, consistent with English precedent, he would follow suit. Judge Berne then adjourned the case to give the Commonwealth a chance to appoint alternative counsel.[59]
The Commonwealth then applied to the Supreme Court for an order of certiorari, to have the case removed from Judge Berne, and an order of prohibition to restrain him from further hearing the case, the basis for the orders being his Honour’s alleged denial of natural justice to the Commonwealth. In supporting this claim, Shand argued that Judge Berne had ‘stepped down from the bench and acted as the appellant’s counsel’. On 17 November, the Supreme Court made an interim order restraining the judge from proceeding with the case, pending a full hearing. Notice of the order was served on Judge Berne at his home that evening, provoking an acrimonious letter from his Honour to Waugh, the Crown Solicitor.[60] The matter was set down for hearing on 29 November, but on that date, counsel for Judge Berne, Eric Miller KC, sought a fortnight’s adjournment. He drew the Court’s attention to requests by the judge’s solicitors that either the state or commonwealth government provide legal aid for their client, citing the seriousness of the allegation against their client, especially given the international situation, and the atmosphere created by the passage of the Communist Party Dissolution Act. The New South Wales government had refused on the grounds that the state was not a party to the proceedings. The Commonwealth also refused, since in matters of this kind it was normal for the dispute to be handled by counsel for the parties involved in the relevant proceedings, with the judge making no more than a formal appearance. Its refusal had been received the previous day. Miller emphasised that the stakes in the case were considerable, Judge Berne’s judicial integrity and loyalty being potentially at issue.[61] There was also the need to consider Shand’s conduct in the matter. He asked that Judge Berne be allowed to proceed with the appeal. The Court allowed a week’s extension and refused the request that the judge be allowed to proceed with the appeal.[62] On 7 December, the matter was adjourned yet again.[63]
The case eventually came on for hearing on 13 February the following year. The result was anti-climactic. Isaacs KC (for Burns) said that it was his understanding that once the Attorney-General applied for a writ of certiorari the court had no discretion but to grant it. He would not oppose the application for prohibition, but ‘this did not mean he was critical of Judge Berne’. Amsberg for Judge Berne said that his counsel would submit to any order of the Court. The Court then made an order that ‘any Quarter Sessions appeal judge, other than Judge Berne’ should hear the appeal. Amsberg had sought an order that the Commonwealth pay Judge Berne’s costs, but this was opposed by the Commonwealth which argued that the Crown Solicitor’s Office had given him ‘a great deal of help’. The Court made no order as to costs. When asked to comment on the outcome, Judge Berne said that ‘At this stage I regret I am to discuss the matter’.[64]
Isaacs’ concession seems a little odd. The application for certiorari was based on the contention that in denying the Commonwealth natural justice, Judge Berne had exceeded his jurisdiction. How could it be that the Attorney-General could succeed without an inquiry into whether the allegations against Judge Berne had been made out? The answer seems to be that Isaacs was confusing two issues: the right to an order nisi for certiorari, and the right to an order absolute. There is ample authority for the proposition that the order nisi issued as of right if sought by the Attorney-General, but there seems to be no basis for Isaacs’ conclusion that the same applied for an order absolute. There would be no point to the requirement that to show cause if that were so, and in Ex parte Attorney-General; Re Cohen,[65] where an order for certiorari had been made on the Attorney-General’s fiat, the Supreme Court had declined to make it absolute. This was certainly the law as the Commonwealth understood it.[66] If the matter had proceeded, it would therefore have been for the Commonwealth to show that Judge Berne had either failed to accord natural justice to the Commonwealth, or at least that he was unlikely to do so in the future.
It is hard to believe that Isaacs did not know this, and it is possible that his observation represented a face-saving way-out for a judge who had treated his client considerately. It may, moreover, have been to Burns’ advantage not to oppose the Commonwealth’s application. His failure to do so meant that he was not in danger of having to pay the costs of a successful application by the Commonwealth, and there had been negotiations over the possible payment by the Commonwealth of Burns’ costs thrown away.[67]
Berne’s belated agreement to submit to any order that the court might make meant that there was no danger of a positive finding being made to the effect that he had denied procedural fairness, and a consequent award of costs against him.[68]
On 4 April, the re-hearing of the Quarter Sessions appeal began before Judge Lloyd. Paterson succeeded in exposing some inconsistencies between the prosecution evidence at the re-hearing and at the hearing before Judge Berne, the CIS officers arguing that they had been confused by the barrage of questions at the earlier hearing. Burns said that he was publisher in name only, and had had no connection with Tribune since he began work as a wharf labourer in 1948. He was registered as publisher solely so that he could be the nominal defendant in any libel action brought against the paper.[69] Paterson argued that Burns was wrongly convicted. First, he argued that the High Court’s decision in the Communist Party case[70] meant that any citizen was free to oppose Australia’s involvement in the Korean war. Second, the sending of Australian troops to Korea was illegal and therefore open to criticism. Third, Burns, as nominal publisher, was not liable for the contents of the paper. In reply Shand argued that as registered publisher Burns was responsible for the contents of the paper. If he failed to carry out his duties, he had only himself to blame.[71]
In an oral judgment, Judge Lloyd stated that he had no doubt that the words in the article evidenced a seditious intent. He accepted the prosecution’s evidence that Burns had stated that he had approved the publication of the offending article. He therefore found the charge made out. On sentence, Paterson argued that Burns had no prior convictions and that as a result of the long delay he had suffered severe stress and anxiety. He had also had to give up work on the days he had appeared before the Court.[72] The plea was partly successful. Judge Lloyd reduced Burns’ sentence to six months on the grounds of the eight months delay. On Paterson’s application he agreed to state a case for the Court of Criminal Appeal on whether the sending of Australian troops to Korea was legal in view of the fact that the relevant United Nations decision had been made without the agreement of the Soviet Union.[73] Nothing came of the application. On 24 April, Burns’ solicitor informed Bennett, the Crown Solicitor, that Burns did not intend to proceed with the case stated, but that an appeal might be made to the High Court. The appeal to the Court of Criminal Appeal was withdrawn by consent on 27 April.[74] The question of the costs of the abortive hearing before Judge Berne was finalised the following month. The Commonwealth was willing to pay two thirds of Miss Jollie Smith’s solicitor’s costs; 80% of Isaacs’ fees; and a little more than half of the fees claimed by Paterson (who, in an ambit claim, had sought costs in relation to Burns’ appearance in the Court of Petty Sessions). It refused to pay any fees for Gruzman, a third barrister who had been retained in the case. Jollie Smith then claimed £11 for Gruzman’s appearance in the Court of Appeal. This was turned down on the grounds that it had nothing to do with the aborted hearing before Judge Berne. So Jollie Smith got £52.10.0. Isaacs got £102.10.0 and Paterson £136.2.0. Shand claimed and was paid £677.4.6 and Henchman claimed and received £457.6.0.[75] Burns served his prison term (less remissions) and was released from Tumbarumba prison camp on 11 August. He flew (by ANA, the non-government airline) to Sydney where he was welcomed by a crowd of more than 50 people.[76]
In one sense the Commonwealth was the clear winner. Judge Berne was forced to agree to a settlement, and emerges somewhat tarnished from the case: his concerns for liberty in a time of intense anti-communism deserve unqualified respect, but in the end he allowed Shand to get the better of him, and emerges as someone over-concerned with protecting his honour in contexts where the better course would have been to recognise that when his and Shand’s recollections diverged, Shand may sometimes have been right, and even if not, may have had reasonable grounds for his recollections. Moreover, regardless of whether he had been legally at fault, some media reports implied that this was so.[77]
Burns was convicted, and imprisoned. There was no adverse finding in relation to the legality of the Korean war.
But the Commonwealth’s victory was a qualified one. First, the Burns case raised questions about the degree to which the sedition law could be used in cases where it was unclear whether the nominal publisher of seditious words was aware of having published the words in question. Burns was, after all, acquitted on two out of three counts and was convicted on the third only because he was found, on what Judge Berne regarded as unpersuasive evidence, to have admitted knowing the contents of the third article. If publishers could be convicted of publishing seditious words only if they were aware of the contents of what they published, the Commonwealth would, in future, be hard-pressed to convict publishers.[78] Given Burns’ fate, communists and other radicals could be expected to take steps to ensure that publishers of their literature remained ignorant of the contents of what they were publishing. Even printers might be able to show that they were unaware of the contents of what they were printing. Writers of seditious articles could obviously not plead ignorance, but while press laws required that publishers and printers identify themselves, there is no requirement that writers do so. If Magistrate Isles was correct, the task of prosecuting those responsible for seditious publications was harder than the Commonwealth had believed. The law could, of course, have been changed. But the fact that it wasn’t suggests that even during the Korean war, the political costs entailed in doing so were not costs the Commonwealth was willing to pay.
Second, Burns’ appeal had the effect of postponing other sedition prosecutions. As noted above, Spicer decided against instituting a prosecution based on a subsequent Tribune article, pending the outcome of the appeal.[79] In another case, the Commonwealth Investigation Service drew the Attorney-General’s Department’s attention to several mimeographed pamphlets authorised by A Ogston urging opposition to the war, one of which included the time-honoured call that there be ‘not a man, not a ship, not a gun’ for Korea. Waugh considered that the pamphlets were seditious. Bailey considered that it was borderline, but analogous to Burns’ case. Given the pending appeal, he recommended against prosecution. The file was remitted following Burns’ conviction, but no action was taken.[80] The file throws no light on why this course was followed, but it is possible that the Commonwealth was worried lest Ogston be able to rely on the ‘ignorant publisher’ defence.
Third, Paterson was able to use the case as a forum for presenting the communist line on the war to a broader audience. Both at first instance, and on appeal, Paterson was able to develop the party’s argument that the war was illegal, and his language included language which denounced the war in emphatic language:
Instead of Burns being charged with sedition, all those responsible for illegal action in Korea should be called before the courts of the land.[81]
He was also able to raise the civil libertarian issues posed the case, and argued that if mainstream politicians were free to criticise the war, Burns should also have that right.[82] The media reports suggest that his efforts may have raised doubts as to the legality of the war and Australia’s involvement in it. Headlines relating to the trial not infrequently suggested that the war was of questionable legality, and many reports mentioned Paterson’s argument that the Security Council resolution was illegal, given the absence of the Soviet Union. Paterson’s success was enhanced by the seriousness with which these questions were treated by Judge Berne: the legality issue was more frequently raised in headlines relating to the appeal before Judge Berne than in headlines relating to the trial before Isles SM and Judge Lloyd. It is hard to know the impact of the headlines and the reports since these depend so heavily on the way their audience reads, filters and interprets them. But it is possible that they sowed doubts in the minds of at least some readers, flowed into private arguments about the war, and in conjunction with other developments, helped create a degree of disillusionment with the war.[83]
Paterson’s civil libertarian arguments received less publicity, but they may have struck a chord. The fact that Shand saw the need to emphasise that ‘This prosecution constitutes no attempt to interfere with freedom of speech’[84] strongly suggests that he was sensitive to the possibility that it would be perceived as such. Judge Berne was certainly sensitive to the civil libertarian implications of the case and his well-publicised allegation that the government was ‘after’ or ‘out to get’ Burns may have kindled or reinforced doubts about the propriety of the prosecution.
Despite ASIO’s close scrutiny of the activities of the communist party, and despite frequent requests from ASIO for advice about possible prosecutions, Burns was the only critic of the Korean war to be prosecuted for sedition. But the Burns case was not quite sedition’s last hurrah. In 1953, the Communist Review published an article critical of the monarchy.[85] ASIO sought advice as to whether those responsible could be prosecuted, and, this time, the advice was that they should be. One of those whose prosecution was considered was none other than W F Burns, in his role as registered proprietor and publisher of the Review, but the advice to the Crown solicitor was that he should not be prosecuted:
From the evidence adduced the last time he was prosecuted it clearly appeared that he was not actively engaged in the publication of the paper and to proceed against him may detract from the seriousness of these offences.[86]
Three defendants were charged, and each was acquitted, but securing convictions was only one of the purposes of the prosecutions. The charges laid the basis for wide-ranging search warrants, which were the basis for raids on communist offices, and communists’ homes.[87]
Thereafter, the Commonwealth seems largely to have lost interest in sedition prosecutions.[88] Instead it pursued its war against communists by other, less legally perilous means: surveillance; the non-appointment of known and suspected communists to government positions; the Royal Commission on Espionage. The Vietnam war passed without a sedition prosecution, and not because opponents scrupulously complied with the letter of the law. Indeed, the more militant opponents of the Vietnam war supported union bans on the supply of war materials, sought to sabotage the operation of the conscription system, and even sought to raise money to support the Viet Cong.[89]
Current concerns about statements which could be construed as giving aid and comfort to terrorists have prompted renewed interest in sedition law.[90] It is difficult to extrapolate from Burns’ case to what will happen in the event of renewed interest in sedition-type prosecutions. But it suggests several hypotheses, some worrying; some less so. One is that sedition-like laws have traditionally been used to punish people for what they think (or what they are thought to think) rather than on the basis of the degree to which their activities actually pose a threat to social order (however defined). A second is that sedition laws are weapons which are used sparingly. The imprecision which ensures they can be used as the basis for convictions even where the language scarcely seems to disclose a seditious intent also means that judges and juries may acquit in cases in cases where the prosecution might confidently have expected a conviction. A third, however, is that sedition prosecutions may be worrying not so much because of their direct effects, as for what they symbolise. Their use is a guide to what governments are willing to tolerate, and even when prosecutions are used sparingly, the fact that they are used at all indicates that governments are relatively confident that the political climate is sufficiently tolerant of repression for them to be able to get away, not only with political prosecutions, but with the more subtle, more ubiquitous, and more effective forms of repression which typically accompany prosecutions for political crimes.
[*] BA(Hons) LLB(Hons) (Melb); MPhil(Yale); PhD(La Trobe), Associate Professor, School of Law, La Trobe University.
[1] As to reasons why it did so, see eg Robert O’Neill, Australia in the Korean War 1950-53. Vol I: Strategy and Diplomacy (1981) 15-20.
[2] Julius Stone, Legal Controls of International Conflict. A Treatise on the Dynamics of Disputes and War-Law (1959) 228-230. Even before the ‘passage’ of the resolution of 27 June, President Truman had ordered United States air and naval forces to assist South Korea: Brian Fitzpatrick and Rowan J Cahill, The Seamen’s Union of Australia 1872-1972: A History (1981) 197.
[3] R L Harry, ‘Australia’s Commitments under the United Nations Charter’ in D P O’Connell (ed), International Law in Australia (1965) 65, 70. The decision to provide two ships was made on 29 June. The government agreed to supply the squadron (which had been publicly requested by Macarthur) on 30 June. The sending of army observers was approved on 3 July, and after initially being opposed to the sending of troops, the government reluctantly agreed to do so on 26 July. On the negotiations and pressures which led to this commitment, see O’Neill, above n 1, 47-57, 63-76.
[4] Chifley and Evatt had supported Australia’s involvement in the war on the basis that it was a United Nations operation, and therefore worthy of support, given Labor’s traditional commitment to collective security. However, other members of the ALP were less enthusiastic, and the government’s response to the war suggests that it considered that there were major political and economic limits to the degree to which it could contribute to the allied efforts. It did not regard the Korean war as of central importance. It was not prepared to introduce conscription for Korea, and while it increased defence expenditure from 2.1% of GNP in 1949-50 to 5.1% in 1952-53, it was not prepared to put the economy on a war-footing. See O’Neill, above n 1, 60, 82, 86-87, 104, 106-108, 123, 196; Les Louis, ‘“Operation Alien” and the Cold War in Australia, 1950-1953’ (1992) 62 Labor History 1, 17. However initial public support for involvement was considerable. In August 77% of Gallup Poll respondents approved the sending of the air force and naval contingents and 15% disapproved. 71% thought some Australian artillery infantry and artillery should go to Korea, and 20% opposed their going: ‘Public Backs Govt on Korea’ (1950) Australian Gallup Polls 1.
[5] ‘Not a Man, Ship, ’Plane for Korea or Malaya’, Tribune, 1 July 1950, 1; ‘Korea for the Koreans! Withdraw All Aust Forces’, Tribune, 5 July 1950, 1; ‘Seamen’s Patriotic Lead: Stop War on Korea’, Tribune, 12 July 1950, 1.
[6] Crimes Act 1914 (Cth) s 24D(1).
[7] Crimes Act 1914 (Cth) s 24B(2).
[8] Crimes Act 1914 (Cth) s 24A(1)(d), (g).
[9] On this, see Fitzpatrick and Cahill, above n 2
, 197-203.
[10] There was considerable public support for action against those who tried to stop supplies. According to the August Gallup poll, most respondents wanted punitive action taken against people who tried to interfere with war supplies (31% favoured imprisonment, 10% wanted them dealt with severely; 10% wanted prosecutions, 6% deportations, 4% dismissals, and 14% for the government to ‘do something’). Only 16% wanted nothing done: ‘Public Backs Govt on Korea’ above n 4
. Government reticence seems to have reflected government sensitivity to the need to avoid alienating less radical unionists.
[11] ‘Not a Man, Not a Gun for Monopoly’s Robber War against Malaya’, Tribune (Sydney), 5 May 1950, 2. This article did not give rise to a sedition prosecution. It could perhaps be distinguished from the July articles on the grounds that it was not until 19 May a firm decision had not yet been made to commit forces to Malaya: O’Neill above n 1
, 39.
[12] See eg, Joint Intelligence Committee, Appreciation No 4/1949 NAA: A5799/15 43/1949.
[13] As evidenced, inter alia, in the statements which gave rise to the prosecutions in Burns v Ransley [1949] HCA 45; (1949) 79 CLR 101 and R v Sharkey [1949] HCA 46; (1949) 79 CLR 121.
[14] See Burns v Ransley [1949] HCA 45; (1949) 79 CLR 101; R v Sharkey [1949] HCA 46; (1949) 79 CLR 121. For an excellent discussion of these cases and their background, see Lawrence W Maher, ‘The Use and Abuse of Sedition’ [1992] SydLawRw 21; (1992) 14 Sydney Law Review 287.
[15] NAA: A432/82 1950/1411.
[16] Waugh to Bailey, 3 August 1950; Bailey, file note 7 August 1950 NAA: A432/82 1950/1553.
[17] Crimes Act 1914 (Cth) s 24D(1). The Act has subsequently been amended, and sections rearranged, For analyses of the law as it stood, see Michael Head, ‘Sedition – Is Star Chamber Dead’ (1979) 3 Criminal Law Journal 89; Maher, above n 14
.
[18] In the aftermath of Burns’ first instance trial, an opinion was expressed about whether a Tribune article published on 16 August 1950 was seditious. The article ‘American Party Trying to Bludgeon People into War’, provided a standard denunciation of the Western role in the war, but did not urge resistance (peaceful or otherwise). The advice was nonetheless that ‘[in] the present circumstances of tension, words used in the passages quoted could be regarded as expressive of a purpose of inspiring or inflaming hostility and emnity [sic] to the Government in its policy in relation to Korea’ and that ‘a prima facie case could probably be established’: Assistant Crown Solicitor to Secretary 18 August 1950 NAA: A432/82 1963/362 (my italics).
[19] The CIS referred numerous cases (often trivial) to the Attorney-General’s Department for consideration for prosecution: above n 14
, 306. Maher also highlights the pressures which explained sedition prosecutions under the Labor government: 297-306. However, in one respect the pressures on Menzies were less: in comparison with Labor, the Menzies government did not have to demonstrate its anti-Communist credentials: it was already demonstrating them by its attempts to secure the passage of the Communist Party Dissolution Bill. The Tribune articles attracted little or no media attention, although there was considerable coverage of the threatened seamen’s boycott.
[20] It had introduced the Communist Party Dissolution Bill on 27 April 1950, and after the Senate had insisted on amendments unacceptable to the government, the Bill was laid aside on 23 June. The Communist Party Dissolution Bill [No 2] was introduced on 28 September, was passed by the Senate on 19 October and received Royal Assent the following day. Nor would it have been concerned that the public would oppose the prosecution. At the time, public opinion seemed overwhelmingly in favour of tough measures against communists and communism. Polls suggested that 80% of Australians favoured banning the party. (Support was to decline, but the government did not know this.)
[21] Sharkey was general secretary of the party; Healy was state president of the Western Australian branch, and Gilbert Burns, whom Head (above n 17, 102) describes as a rank and file member of the party, was nonetheless a member of the party’s Queensland state committee.
[22] Consistent with this analysis is the memorandum referred to above n 16. Tribune was being monitored for future possible prosecutions, notwithstanding their feeble basis. A file-note appended to the memorandum indicated that pending the outcome of the Burns appeal, ‘articles published in this paper should be closely scrutinized from time to time’: J A Spicer (Attorney-General) 24 August 1950.
[23] The trial was widely reported. Accounts include: ‘Publisher on Trial for Sedition’, Argus (Melbourne), 11 August 1950, 7; ‘Defence Counsel Quotes Chifley’, Argus (Melbourne), 12 May 1950, 7; ‘Burns Incited ‘Non-Support of Actual War’, Argus (Melbourne), 16 August 1950, 5; ‘Defence Queries Korea Decision’, Age (Melbourne), 12 August 1950, 4; ‘No Evidence to be Called by Defence’, Age (Melbourne), 12 May 1950, 4; ‘Nine Months on Sedition Charge’, Age (Melbourne), 16 May 1950, 4; ‘Korea Sedition Alleged’, Herald, 10 August 1950, 3; ‘Red’s Reply on Sedition Charge’, Herald (Melbourne), 11 August 1950, 5; ‘9 Months Sedition Sentence’, Herald, 15 August 1950, 1; ‘Red Articles Aimed at Disaffection – KC’, Sun (Melbourne), 11 August 1950, 13; ‘UN Action in Korea Challenged: Treason Case’, Sun (Melbourne), 12 August 1950, 11; ‘Red Gets Nine Months Gaol for Sedition’, Sun (Melbourne), 16 August 1950, 2. While accounts vary in the matters treated as worthy of attention, they appear to be consistent with each other.
[24] The Herald and Sun reports both mentioned that Paterson himself was a communist: ‘Korea Sedition Alleged’ above n 23
; ‘UN Action in Korea Challenged ...’ above n 23
.
[25] Ross Fitzgerald, The People’s Champion, Fred Paterson: Australia’s Only Communist Party Member of Parliament (1987) 49-52.
[26] Even the government considered that the fate of Korea was not of central strategic importance, and in private it was unenthusiastic about the Rhee regime, basing its defence of the war on the need to resist aggression rather than on the merits of the government of South Korea: O’Neill, above n 1
, 106, 114-115.
[27] ‘Red Articles ...’ above n 23.
[28] ‘Red’s Reply ...’ above n 23.
[29] As to whether Security Council resolutions require something close to the affirmative support of permanent members, see eg, Stone, above n 2, 232-233; Leo Grossman, ‘Voting in the Security Council: Abstention from Voting and Absence from Meetings’ (1951) 60 Yale Law Journal 209; and Norman Kogan, ‘United Nations – Agent of Collective Security?’ (1952) 61 Yale Law Journal 1, who argue that they do. Cf, Josef L Kunz, ‘Legality of the Security council Resolutions of June 25 and 27, 1950’ (1951) 45American Journal of International Law 137; Yuen-Li Liang, ‘Notes on Legal Questions Concerning the United Nations’ (1951) 45 American Journal of International Law 694; Myres S McDougal and Richard N Gardner, ‘The Veto and the Charter: An Interpretation for Survival’ (1951) 60 Yale Law Journal 259. Stone argues that the conduct of the Western powers in resisting the North Korean incursion was nonetheless justifiable under international law: 234-237, and see too Gross, 255-256.
[30] His reasons are to be found in NAA: A432/80 1963/362.
[31] [1949] HCA 45; (1949) 79 CLR 101. He did not advert to the question of whether the two tests were more or less identical. Arguably, Latham CJ’s test is a little stricter than Rich J’s. Latham CJ said (at 109): ‘exciting disaffection’ refers to the implanting or arousing or stimulating in the minds of people a feeling or view or opinion that the Sovereign and the Government should not be supported as Sovereign and as Government, but that they should be opposed, and when the statement in question is made in relation to a war it means that they should, if possible, be destroyed. Rich J had said (123): ‘Disaffection connotes enmity and hostility, estranged allegiance, disloyalty, hostility to constituted authority or to a particular form of political government.’
[32] ‘Burns Incited ...’ above n 23.
[33] ‘Nine Months ...’ above n 23.
[34] Waugh to Bailey; and file notes NAA: A432/80 1963/362.
[35] Reports include: ‘Is Australia at War with Korea?’, Age (Melbourne), 14 November 1950, 3; ‘Wrong Emphasis on Question to Govt’, Age (Melbourne), 15 November 1950, 4; ‘Are We Legally at War in Korea?’, Argus (Melbourne), 14 November 1950, 5; ‘Clashes in Sedition Charge Appeal’, Argus (Melbourne), 15 November 1950, 6; ‘Is Australia Now at War’, Courier Mail (Brisbane), 14 November 1950, 3; ‘Must Apologise or Not Be Heard’, Courier Mail (Brisbane), 15 November 1950, 5; ‘Sedition Count Appeal by Tribune Publisher’, Daily Mirror (Country Edition, Sydney), 12 November 1950, 2; ‘Judge Orders KC from Court. Sensation in Sedition Case’, Daily Mirror (Late Extra, Sydney), 14 November 1959, 1; ‘Judge Questions Legality of War in Korea’, Daily Telegraph (Sydney), 14 November 1950, 9; ‘Judge Orders KC from Court’, Daily Telegraph (Sydney), 15 November 1950, 7; ‘Judge Asks: “Are We at War”’, Herald (Melbourne), 13 November 1950, 5; ‘Clash with Judge: No New KC Yet’, Herald (Melbourne), 14 November 1950, 1, 3; ‘KC Clashes with Judge: Quits Case, Court’, Sun (Melbourne), 15 November 1950, 1; ‘“Korean War Might be Illegal,” Says Judge’, Sun (Melbourne), 14 November 1950, 19; ‘No Crown Counsel after Clash with Judge’, Sun (Melbourne), 14 November 1950, 15; ‘Sedition Case Appeal’, Sydney Morning Herald, 14 November 1950, 4; ‘Mr Shand KC Walks out of Court’, Sydney Morning Herald, 15 November 1950, 5; ‘Judge Says Govt “Out to Get Burns”’, Sun (Sydney), 13 November 1950, 2; ‘KC Ordered Out of Court by Judge’, Sun (Sydney), 14 November 1950, 1; ‘Burns Appeal; Judge Flays Government and Police Witnesses’, Tribune (Sydney), 16 November 1950, 7. Insofar as they canvass the same issues, their reports are consistent.
[36] ‘Is Australia at War?’ above n 35; ‘Are We Legally at War...’ above n 35; ‘Judge Asks ...’ above n 35; ‘Judge Questions Legality...’ above n 35; ‘“Korean War Might be Illegal”...’ above n 35.
[37] ‘Is Australia at War?’ above n 35; ‘Are We Legally at War...’ above n 35; ‘“Korean War Might be Illegal”...’ above n 35; ‘Burns Appeal’ above n 35.
[38] ‘Ethel’ is spelled ‘Ethell’ in reports of the first instance trial, and also in reports of the subsequent trial before Judge Lloyd.
[39] ‘Is Australia at War?’ above n 35; ‘Burns Appeal’ above n 35; ‘“Korean War Might be Illegal”...’ above n 35.
[40] ‘“Korean War Might be Illegal”...’ above n 35.
[41] ‘Sedition Count Appeal’ above n 35. (This exchange is not reported in most newspaper reports.).
[42] ‘Judge Says...’ above n 35. The Daily Mirror and Daily Telegraph reports (‘Sedition Count Appeal’ above n 35; ‘Judge Questions Legality...’ above n 35) used the word ‘after’ rather than the phrase ‘out to get’.
[43] ‘Judge Orders KC from Court. Heated Clashes...’ above n 35; ‘Judge Says...’ above n 35; ‘Burns Appeal’ above n 35; ‘“Korean War Might be Illegal”...’ above n 35.
[44] The newspaper accounts are unhelpful. One (‘Judge Says...’ above n 35) refers to the Newspaper Act - an Act which did not exist under New South Wales or Commonwealth law. Several reports implicitly advert to this question in their reports of the questions which Shand sought to have stated for consideration by the Supreme Court. The Sydney Morning Herald report (‘Mr Shand, KC, Walks out of Court’ above n 35) refers to s 21 of the Defence Act, which probably involved the mis-hearing of a reference to s 21 of the Defamation Act (NSW), which was expressly referred to in the Daily Telegraph report: ‘Judge Orders KC from Court. Heated Clashes...’ above n 35.
[45] While parts of the relevant legislation might arguably have extended to seditious libels as well as to defamatory libels, it is hard to read the legislation as providing that publishers of seditious articles are, ex officio, guilty of seditious libel. Moreover even if this were the case at common law or under state law, it is hard to see how state law could affect the operation of an offence created by Commonwealth law.
[46] ‘Is Australia at War?’ above n 35; ‘Sedition Case Appeal’ above n 35; ‘“Korean War Might be Illegal”...’ above n 35.
[47] ‘Sedition Case Appeal’ above n 35.
[48] According to some reports, Judge Berne had said that to insist on a conviction would be ‘a wicked and monstrous thing’: ‘Judge Says...’ above n 35; ‘Burns Appeal’ above n 35.
[49] ‘Is Australia at War?’ above n 35; ‘Judge Questions Legality...’ above n 35; ‘Judge Says...’ above n 35; ‘Sedition Case Appeal’ above n 35.
[50] ‘Burns Appeal’ above n 35.
[51] ‘Clash with Judge’ above n 35; ‘Judge Orders KC from Court. Sensation in Sedition Case’ above n 35; ‘Judge Orders KC from Court. Heated Clashes...’ above n 35; ‘KC Ordered out of Court’ above n 35.
[52] ‘Wrong Emphasis on Question’ above n 35; ‘KC Ordered Out of Court by Judge’ above n 35; ‘Burns Appeal’ above n 35.
[53] ‘Clashes in Sedition Charge Appeal’ above n 35; ‘Must Apologise’ above n 35; ‘Judge Orders KC from Court. Sensation in Sedition Case’ above n 35.
[54] The Age report is slightly different. It states that after the post-lunch altercation with Shand, Judge Berne stated that he would no longer hear Shand unless he apologised and that he wanted further information about the provisions in the Defence Act and the Appropriations Act which authorised the sending of troops to Korea.
[55] The Sydney Morning Herald, Daily Mirror and Daily Telegraph reporters’ versions of what Judge Berne had asked were identical to Shand’s assertion: ‘Judge Questions Legality...’ above n 35, and the the Sun reporter’s version was similar: ‘What are the present warlike operations north of the 38th parallel?’ ‘Judge Says ...’ above n 35. The report of the case in the International Law Reports, which is based partly on the Sydney Morning Herald Report cites the version of the question answered by the Commonwealth, and does not mention Judge Berne’s contention that he had framed the question differently: Burns v R [1951] ILR 596.
[56] ‘Wrong Emphasis on Question’ above n 35; ‘Judge Orders KC from Court. Sensation in Sedition Case’ above n 35; ‘Burns Appeal’ above n 35.
[57] ‘Mr Shand ...’ above n 35; ‘No Crown Counsel...’ above n 35.
[58] ‘Must Apologise’ above n 35; ‘Judge Orders KC from Court. Sensation in Sedition Case’ above n 35; ‘Mr Shand...’ above n 35; ‘Judge Says...’ above n 35; ‘No Crown Counsel...’ above n 35.
[59] ‘Judge Orders KC from Court. Heated Clashes...’ above n 35; ‘Judge Orders KC from Court. Sensation in Sedition Case’ above n 35; ‘KC Ordered out of Court’ above n 35; ‘Mr Shand ...’ above n 35; ‘No Crown Counsel...’ above n 35. These headlines may not be quite accurate. Several reports note that while Sand claimed he was ordered out of court, court officials claimed otherwise: ‘Must Apologise’ above n 35; ‘KC Clashes ....’ above n 35. Judge Berne’s statement about ordering out could be treated as an ultimatum rather than an order.
[60] Berne to Waugh, Crown Solicitor, November 1950 NAA: A432/80 1963/362.
[61] This seems to have provoked a letter from Waugh stating that the Commonwealth did not question Berne’s loyalty and that it would not be alleging political bias: draft letter NAA: A432/80 1963/362.
[62] ‘Judge Berne’s Case Adjourned’, Sydney Morning Herald, 30 November 1950, 6.
[63] ‘Judge Berne Case Adjourned’, Sydney Morning Herald, 8 December 1950, 8.
[64] See the following accounts of the case: ‘Judge Barred in Red Case’, Argus (Melbourne), 13 February 1951, 5; ‘Supreme Court Orders Judge Berne Not to Hear Burns’s Appeal’, Sydney Morning Herald, 13 February 1951, 7. (The case is not reported in any of the law reports, no doubt because, as argued, it did not give rise to any interesting legal points.)
[65] (1923) SR (NSW) 111.
[66] Henchman to Crown Solicitor, 22 November 1950; Waugh to Secretary, Attorney-General’s NAA: A432/82 1963/362.
[67] See Bennett to Solicitor-General, 22 Dec 50; and file notes NAA: A432/80 1963/362.
[68] As evidence of the importance of cost considerations, see Berne to Crown Solicitor 7 February 1951 NAA: A432/80 1963/362.
[69] ‘Witnesses Confused’, Sydney Morning Herald, 5 April 1951, 5; and see ‘Officers Admit Errors in Box’, Argus (Melbourne), 5 April 1951, 3.
[70] [1951] HCA 5; (1951) 83 CLR 1. It is hard to see how the case had that effect. Indeed, it had been implicit in his earlier arguments that they had had this right all along.
[71] ‘Anti-Red Act Quoted in Plea’, Sydney Morning Herald, 6 April 1951, 5; and see ‘Did Burns Mean to be Seditious?’, Argus (Melbourne), 6 April 1951, 7.
[72] Bennett, Deputy Crown Solicitor to Crown Solicitor 9 April 51 NAA: A432/80 1963/362. The memorandum and media reports leave unclear the basis for Judge Lloyd’s finding that the words evidenced a seditious intention.
[73] ‘Gaol Sentence on Publisher Reduced’, Age (Melbourne), 7 April 1951, 3; ‘Conviction for Sedition Upheld’, Sydney Morning Herald, 7 April 1951, 5.
[74] Bennett, Deputy Crown Solicitor to Crown Solicitor 27 April 51 NAA: A432/80 1963/362.
[75] NAA: A432/80 1963/362. There was some dispute about the costs to be paid to Jollie Smith and the fees to be paid to Gruzman, but the Commonwealth did not budge from its original decision.
[76] ‘Communist Ends Prison Term’, Sydney Morning Herald, 12 August 1951, 6.
[77] ‘[D]uring Burns’ first appeal, Judge Berne ordered Mr J W Shand KC (Crown Prosecutor) from the court; after which the Full Bench of the Supreme Court made an order restraining Judge Berne from hearing the appeal’: ‘Did Burns Mean to be Seditious?’ above n 71
.
[78] As evidence of the Commonwealth’s concern about this aspect of the case, see above n 34.
[79] See above n 22.
[80] NAA: A432/82 1950/1621.
[81] ‘Defence Counsel Quotes Chifley’ above n 23. This passage was not reported in the Age.
[82] ‘Defence Counsel Quotes Chifley’ above n 23. Not everyone agreed that even mainstream politicians had a right to criticise the war. Consideration was given to the prosecution of Senator Cameron, a Labor Senator, for comments he had made in an article in Labor Call: see Laurence W Maher, ‘Dissent, Disloyalty and Disaffection: Australia’s Last Cold War Sedition Case’ [1994] AdelLawRw 1; (1994) 16 Adelaide Law Review 1, 14-15.
[83] Support for the war seems to have fallen between August and December 1950. By December, only 59% favoured the continued presence of Australian troops and 28% favoured bringing the troops home. However it is likely that this swing in attitudes was largely a result of the change in the war situation. At the time of the December poll, United Nations forces were retreating towards the 38th parallel, following the entry of China into the war, and poll data suggest that there was little support for enlarging the war so that China came under attack. (Only 36% of respondents favoured bombing Chinese soldiers in Manchuria. See ‘Don’t Pull Our Boys out of Korea’ (1950-1951) (December-January) Australian Gallup Polls 2.)
[84] ‘Publisher on Trial for Sedition’, Argus (Melbourne), 11 August 1959, 7.
[85] For an account of the trials and the associated events, see Maher above n 82.
[86] Joint Memorandum of Advice, Shand and Henchmen to Crown Solicitor, quoted in Maher above n 14, 307.
[87] A proposed Western Australian prosecution was also used as the basis for raids, which, however, were not associated with any prosecutions: Maher above n 14, 289 (n 14).
[88] There was, however, a prosecution arising out of an allegedly seditious speech in Papua New Guinea, which resulted in a conviction, an unsuccessful appeal to the High Court: see Head above n 17, 105-107.
[89] Peter Edwards, A Nation at War: Australian Politics, Society and Diplomacy during the Vietnam War (1997) 167-173, 223-230, 308-312.
[90] This is evidenced by current proposals to re-write and toughen the sedition laws. Under the Anti-Terrorism (No 2) Bill 2005 (Cth), Sch 7, it is proposed to repeal ss 24A-24D of the Crimes Act 1914 (Cth) and to create new sedition offences under the Criminal Code 1995 (Cth) (s 80.2). In some ways the proposed new offences appear to be broader than the current sedition offences, and they carry higher maximum penalties (up to 7 years imprisonment). Proposed s 80.2(5) is aimed at the advocacy of inter-group violence if such violence would endanger the Commonwealth. It is more clearly expressed than the analogous old s 24A(1)(g), (and, like the post_Burns’ case amendment to the relevant sections, applies only to the advocacy of violence). But the offending article could now be caught by s 80.2(7) (assuming the relevant proclamation) and s 80.2(8).
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