D.H. Lawrence in and on Australia

Sir: I am grateful for the mention of our D.H. Lawrence Society of Australia in your pages (Letters, March 2015) and concur with Hal G.P. Colebatch that the “fascist secret army” Lawrence encountered in Australia in 1922 “consisted of patriotic men, often ex-servicemen, quite understandably alarmed with communism”. Mr Colebatch’s eminent father—a distinguished Premier of Western Australia—was himself one such patriotic gentleman, and led a boatful of other patriotic gentlemen, some of them no doubt ex-servicemen, down the Swan River in 1919 to break up a probably communist-inspired union blockade in Fremantle (known in Labor history as “The Battle of Fremantle”).

I also cleave to Mr Colebatch’s point about Lawrence being a proto-Nazi and anti-Semite. However, as a student of Lawrence—and to correct a misapprehension—I would point out that Lawrence’s views on fascism changed sharply in the course of writing his Australian novel Kangaroo, when to his horror and dismay he discovered the true nature of the Diggers and Maggies organisation he had so ingenuously been flirting with in Sydney—a discovery he described at the end of the novel as being “as if the silvery freedom suddenly turned, and showed the scaly back of the reptile, and the horrible paws”. The scaly reptile’s horrible paws were the bloody paws of Australian fascism.

I would also point out that Lawrence’s apparent anti-Semitism also mellowed, and he spent his later years searching for his Rananim—an ultimate utopia the name of which came from one of his closest friends, the exiled Jewish scholar S.S. Kotelainsky, with whom Lawrence collaborated on several literary works.

Robert Darroch
(President of the D.H. Lawrence Society of Australia)
via e-mail

SIR: Kangaroo is much more than a profound poetic response to Australia that opened up a new vision. It also described, perhaps by accident, in astonishing and accurate detail, the right-wing political underbelly of the country. I hoped Daniel O’Neil (May 2015) would open up a fresh perspective. Instead, the discussion is mostly about something that has been repeatedly noted before, that newcomers struggle with Australia. It is a far from new observation and overlooks a much more valuable contribution by Lawrence.

Lawrence is unrivalled in his poetic command of the genius loci, reinforced by an extraordinarily sensitive social/landscape antenna. Benjamin Cooley, Lawrence’s Kangaroo character, was in real life Eric Campbell, founder of the New Guard. Nazi Dreamtime by David S. Bird (2012), discovered that Cooley’s rag-tag army of misfits was a much more dangerous and menacing army, with 40,000 members by 1932. Lawrence, a decade earlier, was onto it at the very beginning of its rise, something that passed largely unnoticed at the time.

Kangaroo, it has often been noted, is a meditation on Lawrence’s marriage to Frieda, but thankfully, it is much more than that.

I was in London at The Architectural Press in 1970 when New Lives, New Landscapes was published. It is a marvellous book. Writing it kept Nan Fairbrother alive; soon after the launch she succumbed to cancer. It recounts the making of English landscape—we sometimes forget the extent to which landscape is a product of culture, and how we view it is mediated by literature and art. How we see landscape, whether as welcoming and benign or hostile, is largely determined by cultural factors.

Fairbrother showed the extent to which the cherished, supposedly “natural” countryside of England was itself manmade and, to a very great extent, was itself the product of prior agricultural and industrial revolutions. It was to be expected then, that Europeans coming upon Australia would struggle to view its wild untamed beauty free of anxiety. This is manifested in Lawrence:

The strange, as it were, invisible beauty of Australia, which is undeniably there, but which seems to lurk just beyond the range of our white vision. You feel you cannot see—as if your eyes hadn’t the vision in them to correspond with the outside landscape. For the landscape is so unimpressive, like a face with little or no features, a dark face. It is so aboriginal, out of our ken, and it hangs back so aloof.

For Lawrence, Australia was “out of our ken”; this would later change radically.

Returning from St Louis in the American mid-west in 1983, I felt much the way Lawrence did in 1922. I was similarly struck by how alien and strange—reptilian was his word for it—the landscape felt after being away from it for just a year. Northern hemisphere landscape is much more harmonious, soft, gentle and supportive compared to Australia’s. I readily identified with Lawrence’s description.

Fourteen years later, writing of Santa Fe, his verdict had changed:

There was a certain magnificence in the high-up day, a certain eagle-like royalty, so different from the equally pure, equally pristine and lovely morning of Australia, which is so soft, so utterly pure in its softness, and betrayed by green parrots flying. But in the lovely morning of Australia one went into a dream. In the magnificent fierce morning of New Mexico one sprang awake, a new part of the soul woke up suddenly and the old world gave way to a new.

Lawrence was running from England, from the hostility directed at him by his pacifism in the First World War, an Englishman-in-exile searching for a resting place. Unlike the former architect turned poet and novelist, Thomas Hardy, who stayed in his beloved West Country, Lawrence moved increasingly into an engagement with the other. Australia was a way station on his journey. We were so lucky that he was here, unlucky that he did not stay longer and never wrote “Flowery Illawarra” as he did for Tuscany. It is manifestly unjust to dismiss Kangaroo as a lesser work and, moreover, hardly begins to plumb the revelatory intensity of Lawrence’s response to Australia.

Philip Drew
Annandale, NSW

A Challenge to Abortion Law

Sir: Shimon Cowen (March 2015) offers “various thinkable avenues of [constitutional] challenge” to the Victorian Abortion Law Reform Act. He concludes that those he explores must fail.

Perhaps there is another that is “thinkable”, limited though it be. There may be others as well, but I have not made a systematic search of all Commonwealth legislation. This one turns on section 109 of the Constitution, which is to the effect that where a law of a state is inconsistent with a law of the Commonwealth then, to the extent of the inconsistency, the state law is invalid.

The Commonwealth Human Rights Commission Act 1973 (the Act), section 11(1)(f) provides that the Commission may on complaint inquire into any act or practice that may be contrary to or inconsistent with any human right—a defined term not here relevant—and may take various steps with respect to that complaint. In most sections of the Act, the acts and practices within the Commission’s jurisdiction are confined by definition to those under Commonwealth and territorial laws, or those with a relevant nexus to the Commonwealth or a territory.

But Part II, Division 4 of the Act proceeds on a different basis. For the purposes of that Division, acts and practices are, by section 30, expanded to include, broadly, acts and practices under state laws; that is, they are not tied to a Commonwealth or territorial nexus. Division 4 deals with equal opportunity in employment. Section 31, within that division, empowers the Commission to inquire into any act or practice that may constitute discrimination, and under section 32 the Commission can deal with a complaint that an act or practice constitutes discrimination. So the power conferred by Division 4 is a power to look into acts of alleged discrimination, not into acts claimed to be contrary to human rights. “Discrimination” is defined to mean, among other things, any distinction or exclusion on a number of grounds including religion and political opinion which, in employment or occupation, has the effect of nullifying or impairing equality of opportunity or employment. Tricky procedural issues could arise under Division 4, for if the Commission is dealing with a complaint about an act or practice arising under state law, its power to compel production of information or documents in its inquiry may be limited by the effect of section 33 of the Act.

However, whatever the difficulties, there is much detail about what the Commission can do in dealing with such a complaint. Detail like that can strengthen a legal argument based on the “covering the field” test of inconsistency under section 109. This is in addition to the argument based on the more straightforward “direct collision” test.

To an extent, the Act preserves the operation of state laws by section 4, but such are the terms of that section that it does not exclude the possibility of an inconsistency between the Act and a state law.

So it seems “thinkable” that an aggrieved medical (or nursing) practitioner in Victoria whose conscientious beliefs did not allow him or her to perform an abortion or to refer a patient to an abortionist could invoke the provisions in the Act which have been outlined above if he or she was subjected to Victorian medical disciplinary processes for a failure to perform an abortion, even in an emergency as defined, or for a failure to refer. It would be necessary to show that the failure arose from a conscientious objection based on religious or political grounds. The remedies and protections available under Part II, Division 4 of the Human Rights Commission Act to such a person could be argued to be inconsistent with the section in the Victorian Act which mandates referral and which compels abortions in the face of conscientious belief in defined emergencies (section 8). If that argument succeeded the Act would prevail over the inconsistent Victorian section.

The above is a sketch of a “thinkable” approach. Any affected practitioner would need to obtain a more thorough analysis and opinion from professional legal advisers before relying on it because the matter is far from straightforward.

Greg McCarry
Epping, NSW