The name Egon Kisch may not be familiar to many but a recent talk given at an event held by the Australian Academy of Law reminded me of the name from my distant law school studies on civil liberties in Australian legal history.
Kisch was a radical Czech journalist invited to address an anti-war rally to be held in Melbourne on Armistice Day in 1934. Declared an undesirable alien under the Immigration Act 1901, he was detained aboard his ship on its arrival in Perth from Europe.
On arrival in Melbourne, he literally ‘jumped ship’, breaking his leg in the process. An order for his release was obtained from Mr Justice Evatt of the High Court of Australia. The main issue at the hearing was whether the information on which the Immigration Minister relied to prevent Kisch’s arrival was sufficient. The Minister put on evidence as to his decision making process and Mr. Piddington sought leave to cross-examine. Evatt J then said:
“I was loath to inconvenience the Minister, but he is not entitled to any immunity from bona fide cross-examination.
I therefore indicated that I could not resist the application to cross-examine …
Counsel for the Commonwealth then asked leave to withdraw the affidavit, and, the two parties agreeing, I allowed such withdrawal”.
On his release, Kisch was then required to pass a language test as a condition of entry. The language required of him was Scottish Gaelic. Although he spoke several European languages, as well as English, he, understandably, failed the test and was convicted of being a prohibited immigrant, and was given six months imprisonment.
A challenge was taken to the High Court which held that the test was invalid because Scottish Gaelic was not a relevant European language under the Act: R v Wilson  HCA 63; (1934) 52 CLR 234.
That decision provoked community uproar, from the Scottish residents of Sydney, and from those concerned about Kisch’s radical politics. The view was taken that the High Court Judges had relied upon mere technicalities to defeat the proper purpose of the law. The Sun newspaper and others were held in contempt of the High Court, because of words that:
- the High Court was putting into a state of “suspended animation … the law which was relied upon to keep Australia white.”
- the “keen legal intelligences” of the High Court had made a decision “to the horror of everybody except the Little Brothers of the Soviet and kindred intelligentsia”; and
- that Kisch should be given another opportunity to see whether a new Act “pleases the High Court any better than the old, or whether the ingenuity of five bewigged heads cannot discover another flaw”.
One made a plea “for some gallant champion to rid them of this pestilent Court”: R v Dunbabin  HCA 34; (1935) 53 CLR 434.
In the end, the charges against Kisch were withdrawn and he departed in March 1935. He wrote an account of his experiences, Australian Landfall (London, 1937). He died in 1948.
The Academy of Law talk – Legal and Literary Pursuits – was given by an Academy Fellow, the Hon Nicholas Hasluck AM QC, now an established writer.
His talk was not directly about Kisch, but about Albert Piddington KC, another well-known name in Australia’s legal history, maybe more so because of his very short period of tenure as a High Court judge, in 1913, an infelicitous telegram exchange with the then Prime Minister (Hughes) about his legal views being his undoing.
Piddington in his later years vigorously and capably pursued a number of important ‘civil liberties’ cases, Kisch being but one. The law reports also show his defence of one Dulcie Williams in challenging her conviction on being found listening to radio station 2KY on a ‘wireless telegraphy device’ without a licence: R v Brislan  HCA 78; (1935) 54 CLR 262.
In his Academy of Law presentation, Mr Hasluck explains that he sees in Piddington the worthy qualities of integrity, independence of thought and fearless speech. He has drawn on Piddington’s character and qualities in his books, most recently in The Bradshaw Case.
While these thoughts were being written, NSW Chief Justice the Hon Tom Bathurst gave us a reminder of an earlier instance in history of the danger of xenophobia – the fear of foreigners – to the maintenance of the rule of law, with the courts again being accused of relying upon technical interpretation rather than on what the community wanted the law to say: Doing right by ‘all manner of people’: building a more inclusive legal system, 1 February 2017.
While the fear of change and difference may well be ingrained to a greater or lesser extent in us all, the law is one protection from history’s accounts of the primitive consequences of that fear. The Chief Justice refers to an earlier paper of the then NSW Chief Justice James Spigelman – Statutory Interpretation and Human Rights, 2008, in which Kisch’s unhappy treatment is explained, along with a close analysis of the decisions of the High Court Judges. That paper gives a more detailed account of the history and use and abuse of the dictation test at the time.
But while the dictation test was abolished in 1958, and the White Australia policy officially abandoned only in 1973, although in decline for years before, we shouldn’t think that those follies of the past have not since been repeated, or won’t be. We need to look at what we do now, and try to assess our conduct from the forward perspective of those examining and writing about us, one hundred years ahead. Forward thinkers and agitators like Piddington, and Kisch, help us do that.
Mr Hasluck’s reminder to us of the achievements of Piddington and his defence of Kisch is a worthy contribution to that thinking process, as are other obvious historical parallels with present day events and sentiments, all of which serve to show the value of knowing about and learning from the past.