In recent times, ‘the shadow cast by Gallipoli has hidden the true extent of the political violence that occurred’ on the Australian home front during the conscription campaigns of 1916 and 1917.[1] While most Australians were united in their support for Britain, conscription proved to be an exceptionally divisive issue[2] which sparked a ‘public debate that has never been rivalled in Australian political history for its bitterness, divisiveness and violence’.[3] In this paper, I evaluate the circumstances which led Prime Minister Hughes to conduct the two plebiscites on conscription. I suggest that although the votes were not legally necessary they were politically necessary to Hughes in attempting to ‘keep the Labor Party solid’[4] and obtain the social legitimacy necessary to effectively enforce a policy of conscription. The inevitable divisiveness of a public debate conducted in an atmosphere of total war nevertheless rendered the plebiscites both ineffective and undesirable.

In Australia, the term ‘referendum’ has come to refer to the form of popular vote involved in amending the Commonwealth of Australia Constitution Act and is distinguished from the ‘plebiscite’ which denotes a non-binding vote of the people; effectively a ‘giant opinion poll to test the public mood on an issue’.[5] However, in the vast majority of literature, the Australian conscription plebiscites of World War I are discussed as ‘referendums’. To avoid confusion, this paper will therefore refer to each plebiscite as a ‘referendum’ where the term is used in its general sense to refer to a form of direct democracy in which the people are asked to vote directly on a political issue.[6] It is understood that this kind of referendum is merely a government-initiated ‘appeal for an expression of opinion’ which has no legal effect; ‘the affirmative would have conferred no new power on the Government [and] the negative withdrew no power that the Government possessed’.[7]

At the outset of the war, a strong sense of national pride had produced overwhelming levels of voluntary enlistment.[8] ‘Sectarian and class differences were blanketed by patriotism’[9] and the Australian people appeared willing to ‘stand shoulder by shoulder, knee by knee, fighting the battle of the great Empire to which they belonged’.[10] By 1916, however, enlistments declined and ‘a growing chorus of voices from the conservative side of politics began to rouse’ in favour of compulsory service.[11] By the time Hughes returned from a six-month sojourn to England on 31 July 1916, it was ‘generally admitted that conscription [was] in the air’[12] and the Prime Minister found himself ‘bombarded with exhortations to act’.[13] Having been advised that, in the absence of large numbers of reinforcements, the Australian forces would be divided and ‘sprinkled throughout the British and French battalions’, Hughes became committed to a policy of compulsory military service.[14]

Under the Defence Act 1903, the Hughes government had the power to conscript all eligible men for home defence.[15] However, when this law was enacted, the majority of the Parliament wished to preclude any future plans for involvement in Britain’s wars.[16] The legislation therefore provided that:

Members of the Defence Force who are members of the Military Forces shall not be required, unless they voluntarily agree to do so, to serve beyond the limits of the Commonwealth and those of any Territory under the authority of the Commonwealth.[17]

The operation of conscription was thus effectively limited to the defence of the nation on Australian shores; men conscripted under the Defence Act could not legally be required to serve outside of Australia.[18]

As an ordinary piece of legislation, of course, the Defence Act could have been amended by a simple Act of Parliament; a referendum was not legally necessary. In 1916, however, an entrenched majority of anti-conscriptionists in the Senate prevented Hughes from passing the necessary legislation.[19] At the same time, opposition to conscription within the extra-parliamentary institutions of the labour movement had become a ‘sweeping avalanche’. By June 1916, the Political Labour Council (Victoria), Political Labour League (New South Wales), Central Political Executive (Queensland) and a special Australian Congress of Trade Unions had all resolved to oppose conscription and refuse endorsement to all pro-conscription Labor candidates.[20] Since the majority of Labor members ‘were not prepared to legislate [for] conscription in the face of the declared opposition of the rank and file’, a double dissolution election to bypass the recalcitrant Senate was certain to precipitate a split in the Labor Party, including the Cabinet itself.[21] Clearly, legislating to amend the Defence Act was not a practicable alternative.[22] As Senator Pearce acknowledged:

The Government of the day…could have brought down a Bill for compulsory service; but with what result? In the first place, it would probably have wrecked the Government, and secondly, it would probably have wrecked the Parliament.[23]

A number of academics claim that Hughes could simply have introduced conscription by regulation under the War Precautions Act.[24] However, under the Acts Interpretation Act 1904, either House of Parliament had the power to disallow such regulations; a power which the Senate would almost certainly have exercised.[25] Moreover, the advice of Chief Justice Sir Samuel Griffith was that such a regulation would be unconstitutional.[26] As Senator Pearce explained in Parliament, the War Precautions Act had to be ‘incorporated and read as one with the Defence Act 1901-1912’[27] and therefore could not be used to issue regulations in contravention of the explicit legislative exclusion of compulsory overseas service.[28]

For Hughes, a referendum thus represented a ‘compromise between a surrender of the policy of compulsion and an immediate break-up of the Cabinet and the Labor Party’;[29] the only means by which he could ‘carry the majority of his party with him and so keep his government intact’.[30] The 1916 referendum was required to serve as a kind of intra-party ‘agreement to disagree’[31] which was intended to circumvent the risk of a Labor Party split by ‘abdicating responsibility for taking [the] decision and transferring it to the people’.[32] In the end, of course, the referendum proved to be an ineffective mediation device; in the wake of the negative referendum result, the Labor movement imploded at both national and state levels.[33]

The reasons behind the second referendum are more complex. The Hughes government of 1917 held a large majority in the House of Representatives along with all eighteen Senate seats and could therefore have readily passed conscription legislation through the Parliament.[34] Although any legal system is necessarily underpinned by the threat of coercion, this threat generally serves only as a ‘reinforcing motivation when the political order fails in its primary normative technique of authoritative guidance’.[35] In reality, coercive power is limited and authorities are ‘heavily dependent upon voluntary or quasi-voluntary compliance and cooperation’.[36] In this sense, community judgements constitute ‘the truer index of the state of the law’[37] because widespread disobedience ‘peremptorily places its doom’ on an unenforceable ruling.[38] In 1911, for example, the system of compulsory military training introduced under the Defence Act 1909 was met with ‘spontaneous and determined opposition’.[39] Despite thousands of prosecutions and punishments, tens of thousands of parents refused to register their sons for training and in a number of areas boys refused to drill or pelted their officers with mud and stones.[40] As a result, the scheme became essentially unenforceable and, in the absence of the interruption of World War I, would probably have had to be withdrawn.[41]

Such widespread non-compliance generally occurs where a government policy is perceived as ‘illegitimate or oppressive in terms of the norms of the society’.[42] Government actors operate, and are expected to operate, according to the ‘logic of appropriateness’ where appropriate action is that which conforms to the institutionalised ethos, practices and expectations of society.[43] Such institutions constitute the general social agreement on the political ‘rules of the game’ which are mutually understood, often tacit and create order in political life.[44] These normative structures provide ‘parameters for action’, limiting the range of options that are perceived as acceptable and legitimate.[45] For example, on 29 September 1916, the government issued a proclamation under the Defence Act calling on all unmarried men aged 21-35 to enlist and, if found fit, enter a military training camp.[46] In Australia, expectations of government are strongly connected to the idea of ‘government by the people’ and its attendant norms of genuine representation and democratic participation.[47] Therefore, although General Birdwood considered the proclamation ‘an excellent move’,[48] it was generally perceived as ‘a pre-emptive and arrogant pre-judging of the result of the referendum’ and thus inconsistent with accepted democratic norms.[49] The result was widespread non-compliance as only 178,197 of 600,000 eligible men responded and, of those, almost all applied for exemptions.[50]

It is clear that any action taken by Hughes to introduce conscription for overseas service would need to be perceived as legitimate and would therefore need to comply with Australian democratic norms. In Australian society it is generally understood that

where a Government has not consulted the people upon a question which has arisen since the preceding election, if it be afforded an opportunity of doing so, it ought to consult them.[51]

The general acceptance of this norm is reflected in the media of the day. According to the Narrogin Observer:

Whatever the greatness and genius of a man, he fails in his mission as leader of a nation when he seeks to substitute his single will for the collective will of the people.[52]

The Guyra Argus agreed that to ‘put conscription into operation…by a simple stroke of the pen’ would be an outrage ‘amount[ing] to a coup d’état against the people’.[53] The members of Parliament themselves felt a strong normative pressure to respect the wishes of the electorate.[54] As Senator Needham declared:

I would not be worthy of the trust reposed in me if my vote meant that those most concerned would not have an opportunity to say yes or no on this great and most momentous issue.[55]

Moreover, during the election campaign of 1917, Hughes had given a specific assurance to the Australian population regarding the introduction of conscription, affirming that:

I submitted to the people the question of compulsion for overseas service, and as a democrat I abide by their verdict given on October 28, and I pledge myself on behalf of the Government and on behalf of the party not to enforce conscription, either by statute or by regulation during the lifetime of the forthcoming Parliament.[56]

The government of 1917 was thus considered to have been ‘elected without any mandate on the question’ of conscription[57] and established democratic norms in Australian society required the government to consult the population before making a decision.[58] The 1917 referendum was an example of what Morel refers to as ‘politically obligatory’;[59] both necessary and desirable to ensure popular acceptance where a simple governmental decision is likely to be regarded as not fully legitimate and thus difficult to enforce.[60]

Officially, of course, the referendums were an exercise of direct democracy intended to ‘gauge public opinion on conscription’[61] and

enable the people to express their opinion as to the advisableness of extending the power which the Government now has over citizens for military service within the Commonwealth to service outside the Commonwealth.[62]

They were not, however, effective in obtaining a genuine expression of opinion. Although both the Prime Minister and the Minister for Defence gave public assurances that freedom of speech would be allowed during the referendum campaign,[63] severe censorship had been systematised long before the referendum proposal was introduced.[64] In particular, Pearce asserted, ‘it is desired that matter which might possibly be considered prejudicial to recruiting be submitted to the Censor before publication’.[65] In addition, most men recruited as censors were highly patriotic businessmen and professionals with a ‘total lack of sympathy for anyone who so much as questioned Australia’s involvement in or contribution to the war’.[66] Dedicated to the conscriptionist cause, these censors ‘suppressed where suppression was possible’ and ‘distorted where suppression was impossible’, while the government took little action to limit their impact.[67]

At the same time, state police and the new Australian Special Intelligence Bureau joined forces to suppress anti-conscription material, raid homes in search of ‘treasonous material’, restrict access to public space and begin a ‘secret examination…of mail passing between prominent labour identities’.[68] Such activity clearly renders any Referendum invalid and ineffective as an expression of the people’s will.[69] Moreover, obvious cuts and omissions in anti-conscription propaganda due to government censorship fuelled claims that ‘Hughes and the militarists were bent upon establishing a despotism’.[70] It is likely that the negative result of the referendums reflected a popular lack of confidence in the government’s ability to safeguard civil rights as much as a genuine opposition to conscription.[71] 

However necessary the referendums may have been to Hughes’ objective of successfully introducing conscription in Australia, conducting a public debate on such a morally divisive issue in an atmosphere of total war was extremely undesirable. As Kilsby observes, the conscription referendums acted as a ‘lightning rod’ for all the patriotic fervour, angst, despair and anxiety that Australians were already experiencing as a result of the appalling casualties on the front lines.[72] By the end of the second referendum campaign, the nation had undergone an ‘extraordinary conversion’ from an ‘apparently peaceful, largely homogenous society’ to one that was deeply and violently divided along ethnic, class and religious lines.[73] Lewis remembers that:

No Protestant would trade at a Catholic store and vice versa, and neither party would meet the other socially. Groups met at farms in the evenings ready for some little thing to spark off a fight.[74]

The conscription campaigns thus produced ‘vicious hatred and violence’ on both sides[75] as the tone of the debate became progressively more ‘strident, irrational and hysterical’ and infused with ‘paranoia and suspicion’.[76] Mass grief was ‘rapidly transmuted into an ungovernable display of fury and brute force’[77] and both pro- and anti-conscription meetings were routinely disrupted by ‘hooting’ and pelted with rotten eggs, tomatoes, road metal.[78] A meeting at Fitzroy Town Hall became ‘the scene of a struggling, shouting mass’[79] and an anti-conscription procession in Maitland induced a violent response from a passing group of returned soldiers.[80] At one major rally at the Melbourne Cricket Ground, ‘eggs, bottles, road metal, and broken glass figured extensively, while special constables laid heads open with batons’.[81] Such an atmosphere was obviously highly undesirable and certainly not conducive to effective public debate.

Australia was the only Anglo-Saxon democratic state that did not introduce conscription in World War I and the referendums on this issue are one aspect in which Australia’s experience of the war was highly distinctive.[82] In this paper, I have examined the reasons behind Hughes’ decisions to hold the referendums and assessed the necessity of doing so. In the end, these referendums served only to throw the country ‘into the vortex of a struggle more acrimonious and bitter than any that has ever happened in the history of Australia’ and were thus both ineffective and undesirable.

BIBLIOGRAPHY

A  Articles / Books / Reports

Archer, Robin, ‘Stopping War and Stopping Conscription: Australian Labour’s Response to World War I in Comparative Perspective’ (2014) 106 Labour History 43

‘Australia’ (1917) 7(26) The Round Table 378

Australian Council of Trade Unions, Australian Trade Unionism and Conscription: Report of the Proceedings of the Australian Trade Union Congress Together with the Manifesto of the National Executive (Labor Call, 1916) <http://nla.gov.au/nla.obj-38539712/view#page/n13/mode/1up>

Beaumont, Joan, Broken Nation: Australians in the Great War (Allen & Unwin, 2013)

Berg-Schlosser, Dirk and Bertrand Badie, International Encyclopaedia of Political Science (Sage Publications, 2011)

Blackburn, Maurice, The Conscription Referendum of 1916 (Anti-Conscription Celebration League, 1936)

Bollard, Robert, In the Shadow of Gallipoli: The Hidden History of Australia in World War I (New South Publishing, 2013)

Campbell, John L, ‘Ideas, Politics, and Public Policy’ (2002) 28(1) Annual Review of Sociology 21

Crawford, Adam and Anthea Hucklesby, ‘Introduction: Compliance and Legitimacy in Criminal Justice’ in Adam Crawford and Anthea Hucklesby (eds), Legitimacy and Compliance in Criminal Justice (Routledge, 2013) 1

Evatt, H V, ‘Australia on the Home Front’ (1937) 9(1) Australian Quarterly 68

Fewster, Kevin, ‘The Operation of State Apparatuses in Times of Crisis: Censorship and Conscription, 1916’ (1985) 3(1) War & Society 37

Fischer, Gerhard, ‘“Negative Integration” and an Australian Road to Modernity: Interpreting the Australian Homefront Experience in World War 1’ (1995) 26(104) Australian Historical Studies 452

Foster, A W, Conscription and the Proposed Referendum (A W Foster, 1916) <digital.slv.vic.gov.au>

Fry, Eric, ‘Conscription Then and Now’ (1966) 1(3) Australian Left Review 34

Hetzel-Bone, Jack, ‘The Conscription Debate During World War I’ (2014) 36(8) Bulletin 24

Hirst, J B, ‘Australian Defence and Conscription: A Re-Assessment Part 1’ (1993) 25(101) Australian Historical Studies 608

Jauncey, Leslie C, The Story of Conscription in Australia (Macmillan, first published 1935, 1968 ed)

Jennings, Margaret Jean, Australia in the Great War (Hill of Content, 1970)

Levi, Margaret, ‘The Institution of Conscription’ (1996) 20(1) Social Science History 133

Mann, Jatinder, ‘“To the Last Man and the Last Shilling” and “Ready, Aye, Ready”: Australian and Canadian Conscription Debates During the First World War’ (2015) 61(2) Australian Journal of Politics and History 184

March, James G and Johan P Olsen, ‘The Logic of Appropriateness’ (Working Paper No 04/09, ARENA Centre for European Studies, 2004) <http://www.sv.uio.no/arena/english/research/publications/arena-working-papers/2001-2010/2004>

Mendez, Fernando, Mario Mendez and Vasiliki Triga, Referendums and the European Union: A Comparative Inquiry (Cambridge University Press, 2014)

Morel, Laurence, ‘The Rise of “Politically Obligatory” Referendums: The 2005 French Referendum in Comparative Perspective’ (2007) 30(5) West European Politics 1041

Murray-Smith, Stephen, ‘On the Conscription Trail: The Second Referendum Seen from Beside W M Hughes’ (1977) 33 Labour History 98

Nairn, N B, ‘The 1916-17 Labor Party Crisis in New South Wales and the Advent of W J McKell’ (1969) 16 Labour History 3

Parkin, Andrew, ‘Liberal Democracy and the Politics of Criminal Justice in Australia’, (1998) 44(3) Australian Journal of Politics and History 445

Rahat, Gideon, ‘Elite Motives for Initiating Referendums: Avoidance, Addition and Contradiction’ in Maija Setälä and Theo Schiller (eds), Referendums and Representative Democracy: Responsiveness, Accountability and Deliberation (Routledge, 2009) 98

Rawling, J N, Conscription in Australia: Speaker’s Notes (Modern Publishers, 1936) <digital.slv.vic.gov.au>

Scruton, Roger, The Palgrave Macmillan Dictionary of Political Thought (Palgrave Macmillan, 3^rd ed, 2007)

Shepard, Max A, ‘Law and Obedience’ (1939) 33(5) American Political Science Review 783

Smart, Judith, ‘The Right to Speak and the Right to be Heard: The Popular Disruption of Conscriptionist Meetings in Melbourne, 1916’ (1989) 23(92) Australian Historical Studies 203

Smith, F B, The Conscription Plebiscites in Australia, 1916-17 (Victorian Historical Association, 2^nd ed, 1966)

Thomas, C A, ‘The Concept of Legitimacy and International Law’ (Working Paper No 12/2013, London School of Economics and Political Science, 2013) <https://www.lse.ac.uk/collections/law/wps/WPS2013-12_Thomas.pdf>

Tyler, T, ‘Trust and Democratic Governance’ in V Braithwaite and M Levi (eds), Trust and Governance (Russell Sage Foundation, 1998) 269

Tyler, Tom, ‘Legitimacy and Compliance: The Virtues of Self-Regulation’ in Adam Crawford and Anthea Hucklesby (eds), Legitimacy and Compliance in Criminal Justice (Routledge, 2013) 8

Williams, George and David Hume, People Power: The History and Future of the Referendum in Australia (University of New South Wales Press, 2010)

B  Newspaper Articles

‘A “Yes” Advocate – A Clergyman’s Experiences’, Daily Post (Hobart, Tas), 19 October 1916, 6

‘Anti-Conscription – Street Demonstration – Several Leaders Arrested’, The Argus (Melbourne, Vic), 1 September 1916, 7

‘Anti-Conscription Apostle – Pelted with Rotten Eggs’, National Advocate (Bathurst, NSW), 8 August 1916, 2

‘Anti-Conscription Banners Destroyed’, The Maitland Weekly Mercury (Maitland, NSW), 7 October 1916, 8

‘Anti-Conscription Row – Women Fight in Brisbane’, Singleton Argus (Singleton, NSW), 12 July 1917, 1

‘Campaign Issues – Concise Catechism – With Questions Answered by the Prime Minister’, The Argus (Melbourne, Vic), 26 November 1917, 6

Commonwealth of Australia, ‘War Service’, West Gippsland Gazette (Warragul, Vic), 10 October 1916, 2

‘Conscription’, The Braidwood Dispatch and Mining Journal (Braidwood, NSW), 20 October 1916, 5

‘Conscription’, Birchip Advertiser and Watchem Sentinel (Birchip, Vic), 16 August 1916, 2

‘Conscription’, Bunyip (Gawler, SA), 20 October 1916, 2

‘Conscription – Mr Hughes’s Explanation’, The Sydney Morning Herald (Sydney, NSW), 27 April 1917, 7

‘Conscription Meetings – Speakers Counted Out – Eggs as Missiles’, Williamstown Chronicle (Williamstown, Vic), 28 October 1916, 2

Davies, A G, ‘The Disloyal State’, Darling Downs Gazette (Toowoomba, Qld), 6 December 1917, 4

‘Federal Fight – Labor and Conscription – The Present Position and Probable Outcome – Feeling Favours Compulsory Service’, Daily Herald (Adelaide, SA), 7 February 1916, 5

Hall, E Sydney, ‘Conscription’, Narrogin Observer and Williams District Representative (Narrogin, WA), 7 October 1916, 5

‘Howling-Down Tactics – Introduced in Sydney’, The Argus (Melbourne, Vic), 12 October 1916, 8

‘Mr Hughes Assaulted’, Camperdown Chronicle (Camperdown, Vic), 1 December 1917, 3

O’Neill, J H, ‘The Fight for Liberty – Outrage at Trades Hall – Conscriptionist Intolerance and Violence – Disgraceful Conduct of So-Called “Patriots”’, Daily Post (Hobart, Tas), 29 November 1917, 7

‘Stones and Eggs at Booborowie’, Daily Herald (Adelaide, SA), 23 October 1916, 6

‘The Censorship – Stifling the People’s Voice – Hughes’s Two-Faced Attitude – Public Declarations Contrasted with Secret Orders’, Truth (Melbourne, Vic), 16 September 1916, 5

The Daily Post, ‘Conscription’, Guyra Argus (Guyra, NSW), 7 December 1916, 3

‘Uproar at Leongatha – Cabbage Thrown at Senator Blakey’, The Argus (Melbourne, Vic), 12 October 1916, 8

Wright, H, ‘Compulsory Conscription – Eggs and Stones – “Yes” Speakers Refused Hearing’, The Bendigo Independent (Bendigo, Vic), 5 December 1917, 6

C  Legislation

Acts Interpretation Act 1904

Defence Act 1903 (Cth)

Defence Act 1909 (Cth)

War Precautions Act 1914 (Cth)

D  Parliamentary Debates

Commonwealth, Parliamentary Debates, House of Representatives, 16 July 1915

Commonwealth, Parliamentary Debates, House of Representatives, 14 September 1916

Commonwealth, Parliamentary Debates, Senate, 28 October 1914

Commonwealth, Parliamentary Debates, Senate, 1 September 1916

Commonwealth, Parliamentary Debates, Senate, 21 September 1916

Commonwealth, Parliamentary Debates, Senate, 22 September 1916

E  Correspondence

Letter from Keith Arthur Murdoch to William Riddell Birdwood, 27 December 1917 in Australian War Memorial Collection, 3DRL/3376 5/1, RCDIG0000035, Correspondence with Sir Keith Arthur Murdoch, 1916-1918 34 <www.awm.gov.au>

Letter from Lord William Birdwood to Sir Ronald Craufurd Munro Ferguson, 20 October 1916 in Australian War Memorial Collection, 3DRL/3376 6/3b, RCDIG0000040, Letters Written by Field Marshal Lord William Birdwood to Sir Ronald Craufurd Munro Ferguson, 1916 125 <www.awm.gov.au>

Pearce, G F, Memorandum on Censorship, enclosed with Letter from the Prime Minister’s Department to the Editors of The Argus, Age, Sydney Morning Herald, Sydney Daily Telegraph, Sydney Sun, Observer, Register, Courier, Daily Mail, Mercury, Launceston Daily Telegraph and Melbourne Herald, 20 November 1917 in National Archives of Australia, A2939, SC147, Censorship Referendum Campaign 1917 7 <naa.gov.au>   

F  Conference Papers

Beaumont, Joan, ‘Going to War 1914-18: The View from the Australian Parliament’ (Paper presented at the Parliamentary Library Lecture, Canberra, 19 March 2014) <www.aph.gov.au>

Kilsby, Andrew, ‘Billy Hughes and the Politics of Conscription 1916-17’ (Paper presented at the Military History and Heritage Victoria Conference, Camberwell, 30 May 2015) <http://www.mhhv.org.au/wp-content/uploads/Billy-Hughes-and-the-Politics-of-Conscription-1916-17-Dr-Andrew-Kilsby.pdf>

G  Other

Pinnington, John, The Political Culture of Australia (Masters Thesis, University of Windsor, 1972)

[1] Robert Bollard, In the Shadow of Gallipoli: The Hidden History of Australia in World War I (New South Publishing, 2013) 72.