Monday, April 20, 2015

The Rule of Law in Wartime: Sedition and Prohibition in WWI, by Professor Andrew Geddis

Much of the focus of the centenary of the Gallipoli landings will be on the experiences of those who left New Zealand to fight in that conflict. This fact is somewhat understandable—their stories and fates mix drama, action and the sort of nobility in defeat that we New Zealanders seem to excel in (is it too soon to mention the Cricket World Cup?).

But what we might like to pause to remember is that the First World War did not just happen in foreign fields. Nor did it just involve men taking up arms (and women taking up bandages) and joining battle. Instead, the conflict was one that reverberated throughout our society, including the legal realm. Not only did individual men and women lose their lives, but our law sacrificed some of the features that we think are most central to it—the control of arbitrary power, the limitation of governmental action and the protection of individual rights.

Probably the greatest intrusion on individual rights imposed during the war was the conscription of men into the armed forces. Those who fought at Gallipoli may have all volunteered for service in the first flowering of patriotic enthusiasm following the war’s declaration, but as the horror of their story (and that of their fellow combatants in other theatres of war) began to leak home, others became increasingly loathe to follow their example. Consequently, a great many of those whose “bravery” and “sacrifice” we celebrate on ANZAC Day did not choose to serve, but rather were compelled to do so under the threat of quite draconian legal sanction. The New Zealand History website ( recounts the introduction of conscription into New Zealand thus:

“Despite confident claims that it would be “over by Christmas”, by 1916 the war appeared no closer to a conclusion. The seemingly endless toll in lives and maimed men began to impact on public sentiment. Newspaper editorials urged the public to accept the necessity of greater sacrifices if the war was to be won. Intensive campaigns to encourage enlistment failed to meet their targets; only 30% of men eligible for military service had volunteered.

In 1916 conscription for military service was introduced to maintain New Zealand’s supply of reinforcements. Only four MPs opposed its introduction. The Military Service Act 1916 initially imposed conscription on Pākehā only, but this was extended to Māori in June 1917. More than 30,000 conscripts had joined the New Zealand Expeditionary Force by the end of the war.

By the end of 1916 conscientious objection to being conscripted for service had become a major issue. Those who objected did so for many reasons. Māori from iwi who had suffered as a result of imperial and settler government policies of the 1860s also resisted the call to fight for the British king. The authorities and general public usually dismissed these arguments; everyone was expected to do their bit for ‘King and Country’.

People could gain exemption from conscription on very limited grounds. By the end of the war only 73 objectors had been offered exemption, and 273 were in prison in New Zealand for refusing to serve. As a consequence of their actions, 2600 conscientious objectors lost their civil rights, including being denied voting rights for 10 years and being barred from working for government or local bodies.”

Not only was it near impossible to legally refuse to serve in the armed forces, but the law also prohibited even arguing publicly that men should not be forced to fight against their will. Regulations promulgated in December 1916, as opposition to the Military Services Act 1916 began to intensify, made it an offence to “publish … any seditious utterance”, with this defined to mean “any utterance … the publication of which has a seditious tendency”. Included in such tendencies was anything that could “interfere with recruiting”.

In its 2007 report recommending the removal of the offence of sedition from the Crimes Act 1961 (New Zealand Law Commission, Reforming the Law of Sedition, NZLC R96, 5 April 2007, p.20), the Law Commission recounted how such charges were used against opponents of conscription:

“During World War I, sedition charges were laid against Bob Semple, Fred Cooke, James Thorn, Peter Fraser and Tom Brindle for speeches made in relation to their opposition to conscription under the Military Service Act 1916. Semple, for example, said: “Conscription and liberty cannot live in the one country. Conscription is the negation of human liberty. It is the beginning of the servile state”. The prosecutions were brought under regulations made under the War Regulations Act 1914, and the prosecution had only to prove that the words used “had a seditious intention or tendency”. All defendants spoke in their own defence and noted that the regulations denied the exercise of the right of freedom of discussion or criticism of Parliament. All five were convicted and sentenced to 12 months’ imprisonment, some with hard labour.

In 1918, the New Zealand Herald reported the conviction and 11-month prison sentence of the Reverend James Chapple for two counts of sedition for a speech against the war, including the words: “A war is blasphemy”, and glorifying the Russian revolution. He said:

Russia wanted war, England wanted war, the upper class in New Zealand wanted war. Never has there been such a wonderful five days [meaning the days of the Russian Revolution]. The old Russia has gone and the new Russia has come in. I hope before I die to see a similar movement in New Zealand. I hope the day will come in New Zealand when these war lords will be repudiated.

Hubert Armstrong, a miner (and later a Minister in the first Labour Government), was also prosecuted in 1917 for an anti-conscription speech held to excite disaffection against the Government, including:

I claim the right to criticise the government of the country. I claim the right to criticise any piece of legislation enacted by the government of this country, that, to my mind is against the interests of the people of the country, whether military service, or any other Act and I am going to do so ... Semple, Cooke and the rest of them are in gaol today because they are said to be disloyal to their country ... I say their names in the near future will be honoured when the name of the Wards and the Masseys will be looked on as the greatest gang of political despots that ever darkened the pages of this country’s history.

Armstrong was sentenced to 12 months’ imprisonment.”

The materials in the Law Library’s display include accounts of some of these cases. Perhaps most interesting, given the involvement of the library’s namesake, Sir Robert Stout, is Semple et al v O’Donovan and Dwyer. It involved a number of the more high profile individuals charged with sedition for their vocal opposition to conscription, including some who went on to serve as future cabinet ministers in the First Labour Government. After being convicted for publishing seditious utterances, they argued on appeal that the enactments and regulations they had been convicted under were invalid law. However, a full bench of the Supreme Court (the old name for our now High Court) under Chief Justice Stout unanimously rejected their appeal. An extract from Cooper J’s opinion gives some insight into the mindset of those sitting on the bench:

“We are engaged, in common with the greater part of the civilised world, in the most gigantic war the world has ever known, in a life or death struggle for our national existence. In older days, at moments of supreme necessity, the Romans, a people who reverenced law, handed over control to a Dictator. At a last extremity, recourse is had to martial law—which is really a negation of law. Short of these, and to prevent recourse to these, there is recourse to special war legislation—which may involve the inversion of the ordinary rights of citizenship. … The Administration … has become a machine devoted to the task of meeting a deadly national peril. Those of us who cannot see their way to assisting its working, can at least refrain from applying sabotage to the machinery.”

The earlier decision in Gill v Hollis likewise revealed the judiciary’s impatience with anyone who tried to publicly oppose the war effort. Chapman J (who also sat in Semple et al v O’Donovan and Dwyer) upheld the conviction of a man who sent a circular opposing conscription to members of Parliament, as well as providing those wishing to claim conscientious objector status with advice on what they should say when required to enlist. Chapman J dismissed any concerns regarding the effect that such convictions might have on freedom to speech as follows:

“[W]e are in perilous times, and we are considering the War Regulations which are in force, and must be enforced strictly if they are to be effective. People may be allowed to have their own opinions on the subject of war and within proper limits to promulgate them, but they should consider in these times whether there is any danger in so doing of inculcating something more than their opinions.”

Without any apparent sense of irony regarding the effect of the intensive propaganda in favour of the war, Chapman J then noted that prohibiting those opposed to conscription from stating their position was necessary as;

“I am expressing the position which experience tells us is quite common. It is extraordinary the large number of people in this world who have their minds made up for them by those who have stronger or more definite views. That is true for recruiting, and it is true with regard to many other things.”

While conscription and the restrictions on opposing that policy are perhaps the most high profile examples, the wartime limitations imposed on individual rights by the law went far beyond this issue. As outlined in the various regulations displayed by the Library, regulations also imposed heavy restrictions on so-called “enemy aliens”. Not only were such persons potentially subject to detention without trial, their businesses also could be seized and it was forbidden for them to engage in foreign trade or to purchase land. Nor were enemy aliens the only ones to have their business activities controlled by the Government. Regulations even prohibited the export of cheese to any destination other than the United Kingdom, and that at a price dictated by the Government.

And if all this talk of enforced service in the military, prohibitions on publicly opposing conscription, restrictions on dealing with “enemy aliens” and the like fail to move you, consider the regulations discussed in the Marlborough Express of 23 August, 1916. These had the following effect:

  1. They prohibited any person from “treating” another with alcohol—that is, paying for another person’s drink at a bar, or buying drinks and then offering to share them with anyone else;

  1. They prohibited any woman from entering or remaining in the bar of any licensed premises after 6 O’clock in the evening.

  1. A breach of these regulations carried a penalty of a fine of up to £100 or a prison sentence of up to 1 year.

So maybe that’s sufficient to get you to reflect on just how extreme was the law’s reaction to the First World War. In 1916, buying someone a drink at Di Lusso, or (if you are a woman) even going to Di Lusso after 6 in the evening, could see you put in jail for a year.

And they say it was the ANZAC troops who really sacrificed during the war … .

Professor Geddis is also a regular contributer to Pundit, an online and current affairs culture blog hub.

Wednesday, April 15, 2015

The Rule of Law and War

To commemorate a century since the Great War, the Law Library has put up a display, focusing on the extraordinary War Regulations, and the socio-legal impact they had on the people of New Zealand.
The contents of the display includes the empowering Statute, the Regulations, some case law, and many newspaper clippings.

You are welcome to browse through the items on the table, and the shelf adjacent.

You will discover (we hope!):
  •  The speed at which Orders in Council were Gazetted, and the tardiness of their repeals. For example the Act to exclude aliens from teaching was only repealed in 1927. 
  • The judgment of Stout, C.J. (yes, that Stout) with regard to the illegal exportation of Cheese. Was it ultra vires? 
  •  The Norwegian woman’s penalty for her ‘disloyal utterances’, and
  • The 'interesting point' of whether a man born in NZ, of German heritage can be admitted to the Bar.
An Act to prohibit the Employment of Alien Enemies as Teachers, 1915