Adela Pankhurst and The Rule of Law

Introduction

In 1975 EP Thompson, published a study of the Black Act.[1]The Black Act was passed in 1723 in response to concerns about poaching, especially deer poaching. It was called the Black Act because the poachers often blackened their faces to avoid being recognised if seen. As Thompson shows, however, the Act was also used as a tool for increased political repression in a time of social disturbances which included writing threatening letters to landowners, the destruction of valuable agricultural property and rescuing offenders from constables.[2] It was an extraordinary piece of legislation which created at least 50 new capital offences and dealt with so many aspects of criminal activity that, to Sir Leon Radzinovicz, it amounted to a “complete and extremely severe criminal code”.[3]

Whigs and Hunters is an eloquent analysis of this episode and one which is damning of the Walpole administration and Lords Hardwicke and Mansfield in particular. Despite this, however, Thompson noted that even a law which was as skewed in favour of the landholding elite that sustained Walpole as the Black Act, nevertheless limited the capacity of that elite to exercise its power. Belief in the rule of law meant that judges were forced to give effect to the letter of the legislation even when this meant that offenders got off scot free. This acknowledgment of the rule of law in operation was and is surprising from a Marxist historian, especially when one notes that he described the value of the rule of law in terms that would have done Blackstone or Burke proud. Thompson was especially scathing of his fellow Marxists’ inability to see the difference between law and power.

. . . [T]he notion of the regulation and reconciliation of conflicts through the rule of law – and the elaboration of rules and procedures which, on occasion, made some approximate approach towards the ideal – seems to me a cultural achievement of universal significance.

. . .[T]here is a difference between arbitrary power and the rule of law. We ought to expose the shams and inequities which may be concealed beneath this law. But the rule of law itself, the imposing of effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims, seems to me to be an unqualified human good.[4]

Do the musings of a maverick Marxist social historian about 18^th century English law have any relevance to us today? The invocation of the rule of law by Gummow and Hayne JJ in Kartinyeri v The Commonwealth[5] (the Hindmarsh Island Bridge case) suggests that they do. In Kartinyeri[6] Gummow and Hayne JJ felt it necessary to respond to suggestions that their understanding of s51 (xxvi) of the Australian Constitution, that it allowed “detrimental” as well as “beneficial” laws, could lead to “extreme”[7] results – presumably racist laws which targeted Aboriginal Australians to their detriment. While the two judges argued that the legislation in question was within the legislative power of the Commonwealth they added that there were three points that needed to be understood in appreciating what the Constitution did and did not allow and how the High Court would apply and interpret it.

First, Gummow and Hayne JJ indicated that, “as a matter of construction, a legislative intention to interfere with fundamental common law rights, freedoms and immunities must be ‘clearly manifested by unmistakable and unambiguous language’”.[8] Second, they emphasised the judicial power of the Commonwealth was to be understood in light of the famous US decision, Marbury v Madison[9], ie it was the role of the High Court to ensure that the legislature and executive acted within their constitutional powers.[10] Their third point will be the focus of this paper and was elaborated as follows.

. . . [T]he occasion has yet to arise for consideration of all that may follow from Dixon J’s statement that the Constitution: “is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption”.[11]

In light of comments made by counsel[12] and Kirby J[13] in Kartinyeri, this reference to the rule of law by Gummow and Hayne JJ can be seen as suggesting that the High Court will use traditional notions of the rule of law to protect fundamental freedoms. In particular, both seem to assume that the rule of law imposes on judges certain habits of mind or certain methods of interpretation that will act to protect these freedoms.

This paper will discuss a forgotten episode where the High Court showed fidelity to one aspect of the rule of law – where judges apply the law or procedures in ways that might seem to let off defendants because of a “technicality” when everyone “knows” that they are guilty (of something). Of course, the rule of law has jurisprudential, constitutional, political and even economic ramifications that go far beyond judges applying the letter of the law in difficult circumstances[14], but it is important to remember that at the heart of the concept is a belief that rules and their impartial application matter.

Adela Pankhurst and the law

Adela Pankhurst arrived in Australia in March 1914 after having been effectively exiled by her famous Suffragette mother Emmeline Pankhurst and her equally famous Suffragette sister Christabel. Adela had devoted her life to the suffragette movement but was seen, apparently, as both a threat and a failure by her imperious mother and oldest sister. She was never to see her family or England again.[15]

Adela Pankhurst’s life as a fighter for causes continued till her death.[16] She quickly flung herself in radical politics on her arrival and it was her opposition to the war that eventually saw her in front of the High Court. Pankhurst argued non-stop for her pacifist position during the war and was prominent in the anti-conscription campaigns of the later war years. She was committed to her beliefs and served a four-month jail sentence from November 1917 because of these activities.[17]

The affair that led to the High Court developed in the following way. During August 1917 Pankhurst participated in at least three demonstrations near Treasury Gardens in Melbourne where the Commonwealth Parliament was then situated. She was arrested on August 15 and 22 but was released on both occasions.[18] On August 30 she took part in another demonstration and in addressing the crowd called upon the five to six thousand people there to proceed to Parliament and break in if necessary to make clear to Prime Minister Hughes their concern about food prices.[19] Police constable Richard Porter charged Pankhurst (and two others) with having, contrary to the War Precautions (Supplementary) Regulations 1916 made under the War Precautions Act 1914-1916 (Cth), taken “part in a meeting of a number of persons exceeding twenty in the open air in a proclaimed place [Treasury Gardens was such a proclaimed place] on a pretext of making known their grievances.”[20] Pankhurst and her two companions were convicted before the Court of Petty Sessions at Melbourne. She refused to pay a ₤100 recognisance and was given a 6 months jail sentence. Pankhurst and her co-accused were imprisoned from August 30 to September 10 before being released by Powers J on an application for an order nisi to review those decisions to be made returnable before the High Court.[21]

The provision under which they were charged, reg. 27, (dated 14 August 1917) provided that:

(1) It shall not be lawful for any number of persons exceeding twenty to meet in the open air in any part of the proclaimed place for any unlawful purpose or for the purpose or on the pretext of making known their grievances or of discussing public affairs or of considering or of presenting or preparing any petition memorial complaint remonstrance declaration or other address to His Majesty or to the Governor-General or to both Houses or either House of the Parliament of the Commonwealth or to any Minister or officer of the Commonwealth for the repeal or enactment of any law or for the alteration of matters of State.

As can be seen the regulation was comprehensive and was aimed at prohibiting demonstrations near Parliament. But, the charge made by Constable Porter was quite specific, ie, that Pankhurst and her co-charged took part in a meeting exceeding twenty persons in a proclaimed place on a pretext of making known their grievances. Pankhurst and her fellow charged, Alice Suter and Jennie Baines, appealed on two grounds against this conviction to the High Court.

The first ground, that the War Protection Act and the regulations made under it were invalid, was not considered by the High Court because the Court found unanimously in favour of Pankhurst on the second ground.

The second ground was succinctly put by Pankhurst’s counsel, Starke (the future High Court Justice), in the following terms.

The word “pretext” in reg. 27 means a pretended purpose as opposed to the real purpose, and there is no evidence that the purpose put forward was not the real purpose.

Counsel for the respondent Porter argued that this was a mere matter of form which if taken at the Court of Petty Sessions would have resulted in an amendment to the information, and that, therefore, the High Court should take the opportunity to amend the information.

The Court (Barton, Isaacs, Gavan Duffy, Powers and Rich JJ) would have none of this. Barton J, with whom the rest of the judges concurred, emphasised that the point before the Court was a simple one: was there evidence to satisfy the magistrate that Pankhurst and her co-appellants were one of more than twenty persons assembled on the pretext of making known their grievances? The evidence as given by Porter was reproduced in Barton J’s judgment in the following terms.

The informant, who is a constable, said that “Shortly after three o’clock the three accused, with several other women, came into the Treasury Gardens. . . There were between five thousand and six thousand people present, and the defendant Adela . . . Pankhurst got up on a seat and addressed the people assembled, and told them all to follow her to Parliament House in defiance of the police and to break in if necessary, and see what Billy Hughes was going to do to get cheaper food for the starving people. The crowd surged round the seat and the said . . . Pankhurst was pushed off it, and then Alice Suter got up on the seat and commenced to address the people assembled, and she in turn was pushed off the seat, and also Jennie [508] Baines was pushed off the seat, and then . . . Pankhurst and . . . Suter and . . . Baines went towards the steps of Parliament House arm-in-arm, and followed by the crowd of people.”[22]

For Barton J, however wrong the object of the protesters and whatever might have been the real facts, the evidence did not show that Pankhurst and her co-appellants were in the proclaimed area on a pretext or that what they had said was a sham to hide their real reasons for gathering there.[23]

This Court, it must be remembered, is here not for the purpose of expressing its opinion upon the propriety or impropriety of the conduct of the appellants, but to determine the meaning of the regulation, and whether the Magistrate was justified in finding that the charge with which the appellants have been confronted had been proved. . . They [the appellants] are not shown to have been putting forward a sham, and this Court is concerned only with the matter of proof. . . If it had been alleged in the information that these persons were assembled “for the purpose” of making known their grievances, it is possible that upon this evidence they might have been properly convicted. That, however, does not concern the present case.[24]

In other words, for Barton J the matter involved a straightforward legal task. Pankhurst had been charged with a specific offence and her guilt (or innocence) depended on whether or not the evidence showed that she was guilty of that offence. It was not relevant that she could have been charged with another offence or that she might have been properly found guilty of the offence that she was charged with if other evidence had been presented. Barton J did not deny that either or both of these were possibilities. Neither was it relevant that Pankhurst was a known thorn in the side of the government who had participated in a number of protests against the government’s war policies during a difficult period in the war for Australia and her allies. Verna Coleman describes a series of inflammatory meetings, arrests and “window-smashing expeditions” from August to November 1917 in which Pankhurst figured prominently.[25] Indeed, Prime Minister Billy Hughes is reported as having seriously considered deporting Pankhurst.[26]

In other words, Barton J made it quite clear that it was not proper for a judge to decide that Pankhurst had probably broken another law or that it was only poor police paperwork that allowed her to get off the present charge. These constraints can be properly described as part of the traditional conception of the rule of law that Dixon J saw as underpinning the Australian Constitution.

Was it possible that Barton J (and, by implication. the concurring judges) decided this way because they were in sympathy with Pankhurst’s political opposition to the war or conscription? At least for Barton J this seems inconceivable. Geoffrey Bolton describes him as a “wholehearted” supporter of the war effort.[27] When the second conscription campaign was defeated Barton J was devastated and wrote the following to his son.

It is of course a terrible disgrace and Australia’s name is polluted. Sinn Feiners, IWW and Labor Party all combined are far from enough to furnish this large total . . . the reservoir of men is abundant, but unless it is shoved by force it won’t flow.[28]

These are not the words or the sentiments of someone in sympathy with Pankhurst’s political views or activities. After all, Pankhurst was a prominent anti-conscription campaigner with views closer to the IWW (International Workers of the World) than to Barton J. Had Barton J’s own views affected his decision they would not have inclined him to allowing the appeal.

Conclusion

At a time when debates about judicial activism, the nature of judging and the pros and cons of various forms of Bills of Rights have taken centre stage it may be useful to pay some attention to one of the most basic and practical applications of the rule of law. As Thompson attests, as Barton J shows and as Dixon J claims, the rule of law is a matter of significance yet one whose importance is not always appreciated. Without the basic form of fidelity to the rule of law displayed in Pankhurst v Porter[29]it may be that even the most sophisticated jurisprudential understanding of judging or the most stringent Bill of Rights would lack secure foundations and probably prove ineffective in protecting liberty.

At the same time, however, we must not claim too much for this narrow aspect of the rule of law. As Thompson’s study of the Black Act makes clear, this application of the rule of law did limit judges but it did not change in a fundamental way a very harsh and unfair law. And, certainly, the rule of law as exemplified by Barton J’s judgment in Pankhurst v Porter[30] would not by itself amount to a substantial protection of freedom – after all, a more efficient prosecuting police officer would have avoided the trap into which Constable Porter blundered. Neither would it, for example, stop the passage and enforcement of repressive laws such as the very law under which Pankhurst was arrested. It may very well be that a Bill of Rights, in whatever guise, will be needed to further protect liberty. And it is likely that the best protections for liberty are contained in a robust political life and a culture of liberty outside the formal institutions of law and politics. But the rule of law as exemplified by a pro-war Barton J acquitting a noted anti-war Pankhurst by giving effect to the letter of the law is always going to be a necessary ingredient for achieving and maintaining a free life. 

Addendum

This was not the only time that Adela Pankhurst or her immediate family figured in noteworthy cases. In Pankhurst v Kiernan[31] Pankhurst appealed against conviction for encouraging the destruction of property in contravention of s4 of the Unlawful Associations Act 1916-17 (Cth). Pankhurst argued that the law was invalid only to see the High Court (Barton, Isaacs, Gavan Duffy, Powers and Rich JJ, Higgins J dissenting) apply Farey v Burvett[32] and find the act within the defence power. Protection of property, it could be argued, was not directly of significance to the naval or military defence of Australia but the judges in Pankhurst v Kiernan[33] cemented an understanding of the defence power that read it to include almost everything that could directly or indirectly affect the defence of the Commonwealth. [34]

In Ex parte Walsh; In re Yates[35]the validity of Commonwealth legislation that allowed for the deportation from Australia of Adela Pankhurst’s husband Tom Walsh and fellow Seamen’s Union official Jacob Johnson was tested. Section 8AA of the Immigration Act 1901 (Cth) allowed the Minister for Home and Territories to deport non-native born Australians who hindered transport in relation to trade or commerce or if their presence in Australia was injurious to the peace order or good government of the Commonwealth. Walsh was born in Ireland in 1871 and migrated to New South Wales in 1893 while Johnson was born in Holland in 1885 and migrated to Australia in 1910 and had become naturalised in 1913. The High Court decided that neither could be deported as both had become members of the Australian community, with at least four judges, Isaacs, Higgins, Rich and Starke JJ (and possibly Knox CJ as well[36]) stating that Walsh’s arrival in Australia before Federation removed him from the reach of the immigration power (s 51 (xxvii)). 

Descriptions of Ex parte Walsh: In re Yates[37] invariably refer to Walsh and Yates as leaders of the Seamen’s Union. What they leave out is that Walsh and Yates detested each other and had conducted and would continue for several years to conduct a vicious personal campaign for control of that union.[38]

But perhaps the case that epitomises what might be called the Pankhurst style is Chorlton v Lings.[39] In that case Adela Pankhurst’s father, Dr Richard Pankhurst appearing as junior to Coleridge QC, argued that as a matter of statutory interpretation the entitlement to vote given to every adult male Briton after 1868[40] meant that British women were also entitled to vote pursuant to Lord Brougham’s Act[41], s 4 of which provided that in all Acts words importing the masculine gender would be deemed to include females, unless the contrary were explicitly provided. The Court of Common Pleas (Bovill CJ, Willes, Byles and Keating JJ) decided against this contention, arguing that the language referred to qualification and not capacity (ie it widened the qualification of male persons referred to in the Reform Act of 1832), that the 1867 act expressly exempted women, if not directly by language then necessarily by implication, and finally, that women were expressly exempted because of an existing legal incapacity to vote.