The 'White Australia Policy' and the dictation test under which it was

Macquarie Law Journal (2005) Vol 5 241

DICTATING TO ONE OF ‘US’: THE MIGRATION OF MRS FREER

KEL ROBERTSON WITH JESSIE HOHMANN AND IAIN STEWART

∗

I I

NTRODUCTION

The ‘White Australia Policy’ and the dictation test under which it was infamously

enforced provided central policy tools in the quest to control Australia’s immigrant

population from Federation in 1901 until well into the twentieth century. Based on

similar legislation that had been enacted in Natal, and that had also been cloned in

some of the Australian colonies, the test was widely recognised as ‘merely a

convenient and polite device … for the purpose of enabling the Executive

Government of Australia to prevent the immigration of persons deemed unsuitable

because of their Asiatic or non-European race’.

∗

Respectively: former LLB student, Macquarie University (this article originated in 2001 as a

research paper by Robertson, supervised by Stewart); PhD student, University of Cambridge;

Senior Lecturer, Department of Law, Division of Law, Macquarie University. Robertson is the

principal author. His was the idea of examining the Freer Case, his is the overall argument and

he did almost all of the archival research (and before the National Archives began to digitise).

This article was commissioned by the Editor. In the references, frequently cited newspapers

are abbreviated as CT (Canberra Times), DT (Daily Telegraph, Sydney) and SMH (Sydney

Morning Herald). Newspaper page numbers cited are those of the edition seen.

Commonwealth Parliamentary Debates are abbreviated as CPD. ‘NAA’ refers to files in the

National Archives of Australia: most of the files referred to are available online at

<http://naa12.naa.gov.au> at 22 August 2006; also available through the more wide-ranging

website ‘Archives of Australia’, <

http://www.archivenet.gov.au/home.html> at same.

Documents referred to often appear in more than one file and more than once within a file, but

in most cases only one reference to each document is given here. Since files were accessed in

different forms by different people, the style of referencing is not wholly consistent.

The King v Davey and Others; Ex parte Freer (1936) 56 CLR 381 at 386, per Evatt J;

hereafter, Freer. See, on the politics: Myra Willard, History of the White Australia Policy to

1920 (2

ed, 1967); A C Palfreeman, The Administration of the White Australia Policy (1967);

Nancy Viviani (ed), The Abolition of the White Australia Policy (1992); Gwenda Tavan, The

Long, Slow Death of White Australia (2005); Wikipedia, ‘White Australia Policy’,

http://en.wikipedia.org/wiki/White_Australia_policy> at 23 August 2006. And see, on the

law: Tony Blackshield and George Williams, Australian Constitutional Law and Theory (4

ed, 2006) ch 20.

242 Macquarie Law Journal (2005) Vol 5

The dictation test, a key element of the Immigration Restriction Act 1901 (Cth),

has always been associated with the question of race.

It was administered to

‘coloureds’ and ‘Asians’ in order to have an apparently neutral reason to deport

them. The last person to pass the test did so in 1909.

It became ‘foolproof’, as it

was designed to be: the applicant would be given the test in a language that their

background firmly indicated they would not know and, upon failing, they would be

told that the authorities could go on giving them tests in languages that they did not

know, infinitely.

However, despite government rhetoric that the test had never been intended, and

would never be used, to exclude those of European ethnicity,

the legislation was

broad in its provisions and at times the government could not resist the lure of its

own power. The still famous instance is the Kisch Case of 1934, in which a

multilingual Czech visitor was set the test in Scots Gaelic.

This article will

examine another case, now rarely mentioned but in that time just as famous: when

in 1936 a young British woman was twice given a dictation test in Italian under s

3(a) of the Immigration Act and, not passing it, was refused entry – which was the

start of a long battle that ended in her disembarking at Sydney to a hero’s welcome.

In tracing her story, we shall examine how a mode of exclusion through law that

had been created for one purpose – acknowledged or, at least, barely denied - could

be employed for a very different and hidden purpose.

The statute’s original short title was the Immigration Restriction Act 1901 (Cth). In 1912 it was

renamed the Immigration Act (without becoming, in its operation, any less restrictive).

Alexander T Yarwood, ‘The Dictation Test – Historical Survey’ (1958) 30(2) Australian

Quarterly 19; Barry York, ‘White Australia and the Dictation Test’ (1996) 6(3) Voices

(National Library of Australia) 27.

Yarwood, above n 3, 25; B York, Immigration Restriction: Annual Returns as Required Under

the Australian Immigration Act Between 1901 and 1957 (1992) 24. York finds a Japanese

fisherman who had entered Australia illegally in 1915 and, 14 years later, was discovered and

was set a dictation test in Greek: he failed, and was sentenced for being a prohibited immigrant

and deported. The test was administered by a local Greek restaurateur. Likewise, in 1950 a

Malay was tested in Rumanian. (York, above n 3, 27 and 34.)

Geoff Woodley, a former Deportations Officer, interviewed in Alec Morgan (dir), Admission

Impossible (film, 1992). The same documentary records that by then the medical examination

involved covert racial screening; that, in the urgent quest for migrant workers after World War

II, Immigration Minister Arthur Calwell broke an undertaking of non-discrimination to the UN

High Commission for Refugees by ensuring that as few Jews as possible were selected from

the European displaced persons camps; and that, into the 1950s, applicants were required to

state whether they were ‘Jewish’ or ‘Not-Jewish’ and whether they had any Jewish ancestry

back to their great-grandparents.

‘The Bill incidentally may exclude, in some few cases, white-skinned people, but it is not

intended to exclude qualified European immigrants who come here to make their homes

amongst us and who, whether they pass the test or not, we shall be glad to welcome’: Alfred

Deakin, CPD vol 4, 4816.

For a comprehensive treatment of this affair, see Heidi Zogbaum, Kisch in Australia: the

Untold Story (2004) and, in his own words, Egon Kisch, Australian Landfall (1969 ed of

trans). Nicholas Hasluck’s essay on the Kisch Case in his The Legal Labyrinth: the Kisch Case

and Other Reflections on Law and Literature (2003) 3-154 is mainly a response to criticisms

of his novelisation of the case, Our Man K (1999).

Dictating to One of ‘Us’: The Migration of Mrs Freer 243

II THE DICTATION TEST

The Immigration Restriction Act 1901 s 3(a) provided, in its original form, that the

category ‘prohibited immigrant’ was to include

Any person who when asked to do so by an officer fails to write out at dictation and

language directed by the officer

Anybody who failed the test would be a ‘prohibited immigrant’ and was to be

prevented from landing.

Contravention of this or any other restriction in s 3

was

an offence punishable with imprisonment for up to one month and then the offender

would be deported.

However, there was a class as well as a race element. Someone who could not pass

the dictation test could nevertheless buy their way in, at least for a short visit, by

depositing with an officer the then large sum of one hundred pounds; they then had

30 days to either obtain a certificate of exemption or leave the country, and in the

latter case the deposit would be returned to them.

Even someone who contravened

the Act could buy their way out of jail (or, no doubt, if they were organised enough,

avoid jail) by finding two approved sureties for fifty pounds each that the offender

would leave within one month.

The purpose of the test was to install a racial bar without mentioning race. The

British government had insisted on that, in order to avoid offending both non-white

British subjects elsewhere in the Empire and the fastest-growing regional power,

Japan.

It was an ‘education test’ – albeit, said Leader of the House Alfred Deakin,

‘a test for the purpose of excluding and not of admitting the educated or

uneducated’.

He did not, he assured, regard any ‘civilisation’ as superior to

another.

It was just that the races should not ‘blend’.

Hence: ‘Unity of race is an

Immigration Restriction Act 1901 s 14.

Any person who is likely to require state or charitable financial support, is an idiot or insane,

carries ‘an infectious or contagious disease of a loathsome or dangerous character’, has been

convicted of a serious crime other than ‘a mere political offence’, is a prostitute or living off

prostitution, or is to perform contracted or agreed manual work unless under an approved type

of contract.

Immigration Restriction Act 1901 s 7.

Immigration Restriction Act 1901 s 6.

Immigration Restriction Act 1901 s 7.

Joseph Chamberlain (Secretary of State for the Colonies), quoted by Deakin at CPD vol 4,

4809 and 4811. Chamberlain also more loftily referred to a racial bar as ‘contrary to the

general conceptions of equality which have been the guiding principle of British rule

throughout the Empire’. And he considered that such a bar would be the more offensive to the

Japanese because it would place them ‘in the general category of Asiatic races, without any

consideration being paid to their state of civilisation’ – as the Japanese government had

already protested. Deakin’s reaction was that this higher state just made the Japanese the more

dangerous, so it was desirable to exclude them altogether: CPD vol 4, 4812.

CPD vol 5, 5820.

Ibid 5819.

244 Macquarie Law Journal (2005) Vol 5

absolute essential to the unity of Australia. It is more, actually more, in the last

resort, than any other unity.’

There had, indeed, to be ‘purity of race’.

In that

sense, he was comfortable in referring repeatedly to the need to preserve a ‘White

Australia’.

Though that did not protect him from accusations that the government

was bowing to British interference in the affairs of this freshly unified and

autonomous nation.

The Bill was proposed by Prime Minister Edmund Barton, doubling as Minister of

External Affairs. The Bill as he quoted it referred not to ‘an European language’ but

to ‘the English language’. In a deeply confusing way, Barton both insisted that a

knowledge of English was indispensable and offered the Parliament the more

racially loaded options of changing the wording to ‘any European language’ or

‘some European language’. These alternatives were already in force in two of the

States, having been enacted when they were colonies and modelled on a Natal

statute.

Barton accepted that, if either of the alternatives were to be preferred, the

officer could set a test in a language other than English and thus could set it in any

European language irrespective of the applicant’s origin. These obvious

possibilities did not seem to worry him; he seems to have assumed that in practice it

would not matter. He declared that, since everyone would have an equal

opportunity to pass a language test, the provision was ‘without distinction of race,

colour, or origin’. He did not comment on the restriction to ‘European’ languages.

However, he went on to quote extensively and with unqualified approval from a

book by a Professor Pearson,

which referred to ‘[t]he fear of Chinese immigration

which the Australian democracy cherishes’ and the Australian mission to guard ‘the

last part of the world in which the higher races can live and increase freely for the

higher civilization’. Pearson predicts with horror a day ‘when the European

observer will look round to see the globe girdled with a continuous zone of the

black and yellow races, no longer too weak for aggression or under tutelage, but

CPD vol 4, 4804.

CPD vol 4, 4807.

CPD vol 4, 4808.

Eg CPD vol 4, 4805.

Eg CPD vol 5, 5801ff.

Immigration Restriction Act 1897 (Natal) s 3. Cp Immigration Restriction Act 1897 (WA) s

3(a): ‘a passage in English of fifty words in length’. However, New South Wales – which

included the principal immigration port, Sydney – chose a different formula. Its Immigration

Restriction Act 1898 s 3 required the applicant to ‘write out in his own handwriting in some

European language, and sign’ a ‘claim to be exempt’ from the operation of the ACT in a form

set out in Schedule B to the Act or in such other form as might be enacted by proclamation. In

both States, the main category of exemption would have been that of certain types of worker –

as provided by law or by ‘a scheme approved by the Governor’: s 2(b) in both Acts.

This was almost certainly Karl Pearson, National Life from the Standpoint of Science (1900) –

to which the authors have not had access. An extract from a later edition of the book is at

<http://www.fordham.edu/halsall/mod/1900pearsonl.html> at 24 August 2006. In relying on

Pearson, Barton chose not a typical racial evolutionist of the time but the most extreme then

writing in English; Chamberlain was more typical: see Paul Crook, ‘Historical Monkey

Business: the Myth of a Darwinized British Imperial Discourse’ (1999) 84 History 633.

Dictating to One of ‘Us’: The Migration of Mrs Freer 245

independent’ and ‘represented by fleets in the European seas, invited to

international conferences, and welcomed as allies in quarrels of the civilized world’.

They will ‘throng the English turf or the salons of Paris, and will be admitted to

inter-marriage … in a world which we thought of as destined to belong to the Aryan

races and to the Christian faith’. Barton quotes this and more, and remarks: ‘Is that

not something to guard against?’ He wishes to balance ‘the prevention of certain

Asiatic influxes’ with a need to avoid legislating in a way that ‘will complicate the

foreign relations of the Empire’.

A few Members were to object that his argument

was ‘fiction’ and that of a ‘hypocrite’. They were right: those were his purposes and

the House of Representatives adopted them. The Senate agreed: it also rejected by

22 votes to 3 an amendment providing that the officer administering the test should

choose a language ‘known to the immigrant’.

Barton also refers to the companion Bill which he was to introduce a few months

later and which became the Pacific Islands Labourers Act 1901 (Cth). That Bill can

be read as a humanitarian attack on ‘blackbirding’, the seizure of Pacific Islanders

for slave labour in the Queensland sugar industry; it can also be read as protection

of the established Queensland labour force, which in that industry had become

outnumbered by Pacific Islanders. It can also be read – as Barton was then to

describe it – as a measure ‘for the preservation of the purity of the race and the

equality and reasonableness of its standard of living’.

Between ‘the white man and

the Pacific Islander’ there is an ineradicable difference, ‘of human mental stature –

of character as well as of mind’; Professor Pearson is invoked once more.

After further protests from the Japanese government,

in 1905 the words ‘an

European language’ were changed to ‘any prescribed language’.

Although no

regulations stating what languages were prescribed had been made, in practice the

section was understood to refer solely to European languages.

The dictation test was to remain law until 1959.

III T

HE STORY OF MABEL FREER

Mrs Mabel Magdalene Freer (née Ward) was Indian-born, white and a British

subject.

Travelling from India, on a valid British passport, she arrived in

CPD vol 3, 3497-3503.

CPD vol 6, 8302 and 8314.

CPD vol 4, 5492.

CPD vol 4, 5503-4.

Yarwood, above n 3, 26.

Immigration Restriction Amendment Act 1905 s 4(a).

The Immigration Restriction Act and all later migration statutes were wholly repealed by the

Migration Act 1958 s 4(1) and Schedule – now s 3(1) and Schedule. Most of the ACT

including s 4, did not come into operation until June 1959. For the politics, see Tavan, above n

1, 103-8.

She had been born in Lahore in October 1911 (Freer, above n 1, 382 – the court would have

had evidence of this from her passport). According to her own account, her father was English

246 Macquarie Law Journal (2005) Vol 5

Fremantle on the Maloja on 20 October 1936. The Australian government had been

given advance warning of her voyage and, seeking to exclude her, upon the ship’s

arrival had the immigration authorities give her a dictation test – in Italian.

Italian was not a language with which Mrs Freer was familiar and she was unable to

complete the test.

Consequently she was not permitted to land at Fremantle, nor at

the eastern Australian ports that the ship then visited. She was given no reason at

this time for the application of the test.

(Nor was she ever.) However, she soon

revealed that the exclusion could have been because she intended to marry her

Australian travelling companion, a Lieutenant R E Dewar, who was still married to,

but seeking divorce from, an Australian woman.

Dewar was an up-and-coming

staff officer, returning after a year’s secondment, within the Imperial Army, to

India.

This was Mrs Freer’s first visit to Australia,

although as a child she had

visited England.

After remaining for several days on board the Maloja in Sydney – apart from the

day when she was permitted to tour the city, under guard of a uniformed officer of

the shipping line and a customs officer

– Mrs Freer was given permission by the

Minister for the Interior, Thomas Paterson, to change ships to travel to New

Zealand.

The difficulties she had experienced on arriving in Australia were not

repeated in Auckland, even though New Zealand’s Acting Minister for Customs

had received information from the Australian government about the reason for the

and from a military family, ‘William A. Ward, late of the Royal Horse Artillery’ and ‘well-

known in India’, and her mother Irish (some words then illegible in this copy), ‘a really

beautiful woman, with dark hair and grey Irish eyes, and fine transparent skin’: Mabel M

Freer, ‘My Life Story’ (part of first instalment – all that is on this file), Woman, 26 July 1937,

4 (NAA A2998 1951/696 10). She would have been a British subject through each parent. Her

departmental file, which includes newspaper and magazine clippings, is available in the

National Archives at A2998 1951/696. To see this and other officially archived material on

Mrs Freer, go to <

http://naa12.naa.gov.au> and search for ‘Mabel Freer’ and ‘Mrs Freer’.

She later claimed: ‘I could have passed that test. I can speak several languages, but I knew that

my linguistic ability had nothing to do with my being allowed to land. I simply refused to sign

any papers.’ (DT 30 October 1936, 1). Since the stakes had been so high, this seems

implausible. If she could speak Italian, she could have passed the test, entered Australia and

then protested in the company of a husband-to-be.

DT 27 October 1936, 2.

DT 30 October 1936, 1.

It appears that he was admitted without difficulty – probably at Melbourne, since he later

wrote to Paterson and Lyons from a drill hall in Richmond, Victoria. To have remained on

board with Mrs Freer would presumably have been to disobey orders.

She was to claim that, before leaving India, she had received a letter from some private person

warning that, if she tried to come to Australia, her entry would be prevented under Australian

immigration laws: DT 30 October 1936, 1. The leading candidate for authorship of that letter

would be Lieutenant Freer’s father.

Freer, above n 30. She could have entered Britain, to live and work, without difficulty at any

time.

DT 2 November 1936, 2.

DT 31 October 1936, 5 and DT 2 November 1936, 2.

Dictating to One of ‘Us’: The Migration of Mrs Freer 247

ban in Australia.

Instead, a Departmental officer was sent to greet Mrs Freer and

wish her a pleasant stay.

Paterson, a Country Party member of the United Australia Party/Country Party

coalition government, emerged as a central figure in this drama.

As the story

continued to unfold in the newspapers, he gradually revealed that Mrs Freer had

been given the test in order to exclude her because information from India indicated

that she was of ‘undesirable character’

and that the information relied upon had

not been provided by the government there.

He referred to Mrs Freer as an

‘adventuress’ with ‘apparent total absence of … compassion for a wife and child,

whose domestic world is tumbling about their ears’,

yet he refused to detail the

substance and source of the information received about her.

He seemed to suggest

that a sense of chivalry towards Mrs Freer prevented him from revealing the

damning information which had prompted her exclusion.

This rationale for his

reticence came to be as much criticised as his condemnation of Mrs Freer’s

character under the cloak of parliamentary privilege.

Cabinet members began

leaking to the press that they had seen the Freer papers and that she was not being

excluded on grounds of immorality.

The barrister who was to represent the

Commonwealth when the case came to the High Court, J W Spender KC, told the

press that ‘the application of the dictation test to a white British subject is clearly a

gross misuse of the powers of the Immigration Act’ and foresaw that, if Mrs Freer

were allowed into Australia, she might be subjected to a dictation test any time that

she were to leave and return

– a prospect to frighten every immigrant in Australia.

SMH 5 November 1936, 5 and DT 5 November 1936, 7. Even the passing of information to the

New Zealand government became the subject of controversy. As was pointed out in the House

of Representatives, Paterson appeared to think it reasonable to provide information to the New

Zealand government which he would not provide to the House (CPD vol 152, 1525). Paterson

denied providing any information to New Zealand, contrary to statements by his New Zealand

counterpart: CPD vol 152, 1525 and 1590. It was later revealed that the information was

provided to the New Zealand Trade Commissioner in Sydney by Australian customs officials:

SMH 9 November 1936, 9; DT 10 November 1936, 1 and CPD vol 152, 1658-9.

DT 5 November 1936, 7.

Thomas Paterson had been born in England, of Scots parents, and was a Presbyterian. With his

wife, mother, youngest brother and a cousin, he had sailed into Melbourne on 31 December

1908. Two of his brothers had preceded him. See B J Costar, ‘Paterson, Thomas (1882-1952)’,

Australian Dictionary of Biography vol 11 (1998), 157-8: <http://www.adb.online.anu.edu.au/

biogs/A110160b.htm> at 18 August 2006.

CPD vol 152, 1658.

CPD vol 152, 1769.

CPD vol 152, 1768.

CPD vol 152, 1767. See also SMH 11 November 1936, 15 and DT 6 November 1936, 6.

CPD vol 152, 1773.

DT 7 November 1936, 5.

DT 9 November 1936, 2.

248 Macquarie Law Journal (2005) Vol 5

Lieutenant Dewar wrote letters to Paterson

and to Prime Minister Joseph Lyons

in November and made comments to the newspapers speculating on the source of

the information provided to the Minister. Dewar cast doubts on the reliability of the

information and revealed that it was members of his own family who had threatened

to organise such a ban.

Other individuals involved in the drama – including Mrs

Freer’s mother-in-law, Dewar’s father, Dewar’s wife and his father-in-law – as well

as Mrs Freer herself,

provided information to newspapers on the events, thereby

adding a soap-operatic dimension to the unfolding narrative.

Further spice landed in the affair when it emerged that Mrs Freer was a niece of

Countess Cave, widow of prominent British politician and lawyer George, Viscount

Cave. He had been Home Secretary, Lord Chancellor, legal adviser to the Prince of

Wales and Chancellor of the University of Oxford.

Mrs Freer said that she had

asked Lady Cave to intercede on her behalf with the Governor-General.

‘I

wouldn’t if I could’, the countess told the press in London, opining that it would be

better if Mrs Freer returned to her parents in India.

Meanwhile, Paterson despatched urgent cables to India, Ceylon and London, in

search of information, including intelligence about a Eurasian woman - impliedly a

prostitute – called Vera Freer.

The London Daily Telegraph got wind of these

inquiries, which shook the Prime Minister,

but their precise nature was not known

at the time and seems to have ignored clear photographic evidence that Mrs Freer

was white.

The secret cables failed to produce any credible information to the

SMH 18 November 1936, 15.

Letter from Lieutenant Dewar to Prime Minister Lyons, 25 November 1936 (NAA CP290/1

BUNDLE 1/16 25). Lyons was Prime Minister, leading a United Australia Party government,

from 1931 to 1934 and, leading a conservative coalition government, together with the

Country Party, from 1934 to 1939.

DT 25 November 1936, 1.

DT 17 November 1936, 2; 19 November 1936, 2; 20 November 1936, 2; 21 November 1936, 2

and 16 November 1936, 1. Also SMH 14 November 1936, 17 and 18 November 1936, 15.

Wikipedia, ‘George Cave, 1st Viscount Cave’, <http://en.wikipedia.org/wiki/

George_Cave,_1st_Viscount_Cave

> at 23 August 2006. Viscount Cave died just before he

was to be made an earl, but his widow was nevertheless elevated from viscountess to countess.

DT 30 October 1936, 1; noted in Department of the Interior Memorandum, 30 October 1936

(NAA A6980 S203497 23).

DT 30 October 1936 (NAA BP234/1 SB1936/2454 16) and 9 November 1936 (ibid 15)

(though the dates on these clippings do not match the microfilmed copy of the newspaper).

Lady Cave stated that Mrs Freer’s mother was her sister-in-law. That would be strong

evidence that Mrs Freer senior was white. Captain Freer, a former Army officer, must have

been white. More information might be in the Cave correspondence and papers, including

some letters by the countess, in the British Library Manuscripts Collection at Add MSS 62455-

516.

See Paterson’s handwritten drafts and copies of Secret cablegrams dated 16, 17, 18 and 27

November 1936, with slow and patchy replies from the Indian government (NAA CP290/1

BUNDLE1/16).

Cablegram, High Commissioner in London to Prime Minister, 19 November 1936, and reply

same day (NAA CP290/1 BUNDLE 1/16 26-7).

DT 30 October 1936, 1; SMH 31 October 1936, 20 and DT 2 November 1936, 2. A face

photograph of Mrs Freer can be seen at NAA A6980 S203497 1. Three other pictures of her

Dictating to One of ‘Us’: The Migration of Mrs Freer 249

detriment of Mrs Freer

and by the end of November there were calls for Paterson

to resign.

A summary, undated but necessarily of late November 1936 and headed

‘Information in Possession of Department [of the Interior]’,

reads:

(1) NAME – Mabel Magdalene Freer – said to be identical with Vera Freer.

(2) Said to be divorced – came to Lahore in May, 1936.

(3) Lived by her wits and gave herself to the biggest bidder.

(4) Her one idea is to find someone to pay her expenses.

(5) Enquiries should be made into her parentage and mode of living.

(6) She only married her first husband to get a father for her child. That was when

she was in Whiteway, Laidlaw, Bombay.

(7) Don’t think she and her parents have seen any country other than India.

(8) Said to be known in Bangalore as Vera Freer, where she lived in Infantry

Road in 1931-1932.

(9) At this time (1931-1932) had a small son of 2½ to three years of age who

showed undoubted indications of black blood.

(10) She is said to be half Sinhalese.

(11) She stated at the time (1931-32) that she was divorced from Freer, but was

married at the time to an Armenian who was in Iraq and who was the father of

her child. She did not use the name of the Armenian.

(12) Was constantly in the company of an Indian named Banerjee, said to be a

Civil Servant of State of Hyderabad, spending his leave in Bangalore.

(13) Said to have been the cause of the disgrace and expulsion from India of a

young English member of a Calcutta mercantile firm.

(14) Although an Eurasian she always said she was pure English.

(15) She is a cunning and utterly immoral woman. She is little better, if at all, than

a common prostitute.

are in the State Libraries of New South Wales and Victoria:

http://www.pictureaustralia.org/index.html> (at 22 August 2006) and search for ‘Mrs Freer’.

The Victorian photograph, which is whole-length, is dated at 1936 and appears to have been

taken on board a vessel, but Mrs Freer looks much older than in the Archives photograph and

the setting looks like it may be a studio mock-up.

The only substantial information provided by the government of India was received on 28

November 1936. Key points were: that a ‘Mohammedan gentleman’ had ‘hired furniture on

her behalf and paid for some time’ and later she hired furniture herself but failed to pay and

‘[s]uddenly disappeared’; that she was ‘[s]aid to look like Anglo-Indian’; that in 1935 her

husband ‘Captain Freer’ had refused to support her and commenced divorce proceedings; that

she had stayed in a room next to Lieutenant Dewar’s at the Grand Hotel in Bombay; and that

Dewar had attempted to book a passage to Australia for the two of them as husband and wife.

(Secret cable received 28 November 1936. See other responses dated 17 November 1936, 25

November 1936 and 8 December 1936: NAA CP290/1 BUNDLE 1/16.) The last of these

states that Mrs Freer was ‘not, so far as is known, Anglo-Indian’ and that the house where she

had lived in Bangalore was of good repute.

DT 26 November 1936, 1 and 6; CPD vol 152, 2393.

NAA A6980 S203497 207. The summary must be later than 14 November 1936, since items

(8), (9) and (15) come from a letter of that date to Paterson from Walter Hunt (ibid 102-8).

And it is probably later than the record, dated 18 November 1936, of an official’s interview

with Hunt (ibid 87-9).

250 Macquarie Law Journal (2005) Vol 5

Mrs Freer, living in Auckland and working in odd jobs,

responded to Paterson’s

early statements by challenging him to detail the accusations against her. She

repeatedly expressed her determination to have her name cleared.

Although

clearly frustrated by her circumstances,

she was an articulate critic of Paterson’s

decision and displayed a sense of humour that could only have persuaded observers

of her fortitude in difficult circumstances.

Her legal representative in Auckland, Mr G P Finlay, appealed to the

Commonwealth government, through Attorney-General Robert Menzies, for an

impartial investigation of the case.

Members of Parliament also repeatedly

demanded an inquiry. But Menzies advised the Prime Minister that a ‘purely

individual case’ did not merit an inquiry and the best course was to ‘sit tight and let

[the] controversy die away’.

Mrs Freer remained in New Zealand until 30 November 1936.

During this time,

Paterson was under increasing pressure from Australian newspapers and from

federal MPs (including those within his own party) to admit her.

In early December 1936, Mrs Freer made a second attempt to gain admission to

Australia, arriving in Sydney on the Awatea. In transit she had been told that

Cabinet, which had been widely tipped to permit her admission, had decided not to

do so.

This journey would seem to have been orchestrated by her legal advisers

Initially in a drapery firm (SMH 18 December 1936 = NAA A2998 1951/696 111); eventually

as a typist in her lawyer’s office (Sydney Sun, 5 June 1937 = NAA A2998 1951/696 30).

DT 12 November 1936, 1; DT 14 November 1936, 2; SMH 18 November 1936, 15; DT 20

November 1936, 2 and DT 1 December 1936, 1.

See interview in DT 26 November 1936, 2. See also the letter from Lieutenant Dewar to Prime

Minister Lyons, 25 November 1936, in which he quotes a suicidal statement allegedly made in

correspondence received from Mrs Freer (NAA CP290/1 BUNDLE 1/16 25).

Eg ‘“Mr. Paterson,” Mrs. Freer added, ‘seems to have got himself into a tangle.”’ (SMH 14

November 1936, 17). Perhaps her best put-down of Paterson was to play the role, in a film

made in New Zealand to promote travel to New Zealand and Australia, of ‘a traveller boarding

the Awatea, Sydney-bound, ticket in hand’ (SMH 10 February 1937, 16). See also her remarks

on the necessity for an ‘around the world’ ticket when offered a return fare by Lieutenant

Dewar’s father (SMH 20 November 1936, 13).

Letter dated 11 November 1936 to the Attorney-General for the Commonwealth of Australia

from G P Finlay, Barrister and Solicitor of Auckland (NAA A432/85 36/1360). See copies of

telegrams dated 27 November 1936 and 28 November 1936 from Finlay to Attorney-General

Menzies (NAA A432/85 36/1360).

Memorandum, NAA CP290/1 BUNDLE 1/16 20.

DT 1 December 1936, 1.

DT 3 December 1936, 1. Paterson had informed a meeting of Cabinet on 4 November that he

had refused Mrs Freer a permit to land. He told Cabinet that he had done this on the basis of

information received from India, London and Australia (an assertion that would not seem to

have been true). At subsequent meetings Cabinet considered the case but no decision in

support of Paterson was recorded in the minutes. It was thus surprising that the minutes of the

2 December 1936 Cabinet meeting state that ‘After discussion, it was agreed that Cabinet

adhere to its previous decision.’ (NAA Minutes of Cabinet Meetings, vol 16, part 2). It is

worth noting that Paterson stated in the House on 4 November 1936 that he had ‘received the

endorsement of Cabinet’ (CPD vol 152, 1470). Even if Paterson had thereby overstated the

Dictating to One of ‘Us’: The Migration of Mrs Freer 251

and financed by a Sydney newspaper, the Daily Telegraph.

The timing of the trip

was evidently designed to take advantage of the public pressure being placed on

Paterson to resign.

However, it proved to be disastrous, as the abdication crisis in

England was to divert the attention of the public and the press away from Mrs

Freer’s second exclusion and thereby reduce pressure on Cabinet to admit her.

Cabinet itself had otherwise attempted to reduce the attention which her arrival

might have attracted by determining that she would not be permitted to broadcast as

she arrived in Sydney.

When the Awatea docked in Sydney, Mrs Freer was again given a dictation test in

Italian. She placed her fingers in her ears as Dr C A Monticone, the Chief

Government Interpreter for New South Wales,

read her a weather report translated

into Italian for the purpose of the test:

La pioggia di ieri, che a stata discretamente generale in tutto lo statto, rappresenta un

cambiamento piu che benvenuto, dal periodo di bel tempo che era divenuto una grave

siccita in qualche area. Sebbene li pioggie siano statte piuttosto leggiere, le

previsione promettono precipitazione piu importante, e si deve sperare un

miglioramento.

position of Cabinet, once the statement was made and not corrected it would have been

difficult to refute.

Prior to her departure from New Zealand, Mrs Freer admitted to being in straitened financial

circumstances. It would seem that the Daily Telegraph paid for her return ticket to Australia.

The paper would also seem to have paid the deposit required by the shipping line as a

guarantee against any unlawful departure by Mrs Freer from the ship in Sydney (in the event

that she was once again found to be a prohibited immigrant). See Deposition by Customs

Officer Herbert Bede Cody (NAA A432/85 36/1360). It is not clear who paid Mrs Freer’s legal

bills, which almost certainly exceeded her means, although evidently the Daily Telegraph is a

possibility.

The timing also coincided with the scheduled end of the parliamentary session (in the

knowledge that it would be difficult to convene a meeting of Cabinet for some time thereafter).

See also the telegram from Finlay to Attorney-General Robert Menzies dated 27 November

1936, stating: ‘Australian legal authorities urging Mrs Freer sail Australia immediately’ (NAA

A432/85 36/1360). These ‘authorities’ may have been Sydney solicitors Allen, Allen &

Hemsley, who were to handle the application to the High Court.

Minutes of Cabinet Meeting of Thursday 3 December 1936 (NAA, vol 16, part 2).

The reason for using a senior skilled interpreter who was, perhaps, a native speaker of Italian,

was to preclude the raising of issues around the competence of the dictating person like those

raised in the High Court challenge to the Scottish Gaelic dictation test imposed on Egon Kisch.

See Kisch, above n 7, 98-101. Italian was chosen by Paterson because Mrs Freer had already

failed once in Italian and Monticone was chosen because no customs officer in Sydney could

speak Italian. (See Department of the Interior memorandum by R A Peters, 16 November

1936: NAA A6980 S203497 175.)

NAA A2998 1951/696 66. It would not have been the same passage as on the first occasion.

‘Passages used in the Test were selected by the Secretary of the Department of External

Affairs, distributed to the State Collectors of Customs, and changed every fortnight to prevent

evasion by means of rote knowledge’: Yarwood, above n 3, 24.

252 Macquarie Law Journal (2005) Vol 5

The language is very simple – the passage seems to have been the standard text of

the moment, or at least of a standard type.

At the conclusion of Monticone’s second and slower reading of the passage, when

she should have written the passage down, Mrs Freer was informed by customs

officer Herbert Cody that she had failed the test, that she was therefore a prohibited

immigrant and that she would not be allowed to land. She was also informed by

Cody that he had, regardless of the dictation test outcome, instructions from the

Minister for the Interior to prevent her from landing.

The test, then, was a façade.

Later that morning, application was made to the High Court for a writ of habeas

corpus.

The application was heard by Justice H V Evatt, who had decided in the

applicant’s favour an earlier immigration habeas corpus case involving a

controversial applicant, Mr Egon Kisch – another white European whom the

government nonetheless felt an irresistible compulsion to exclude using the

dictation test.

However, this was not the only reason why it was an advantage to

have Justice Evatt to hear the application: he had evinced a strong personal interest

in immigration matters,

even before assisting in an unsuccessful challenge to the

deportation of Irish Republican Representatives before the High Court in 1923

and two years later successfully arguing before the High Court against the

deportation of the leaders of the Seamen’s Union, Walsh and Johnson.

But simple language might contain pronunciation and spelling traps for the less than fluent.

York, above n 3, 27 quotes a test in English from 1927: ‘The tiger is sleeker, and so lithe and

graceful that he does not show to the same appalling advantage as his cousin, the lion, with the

roar that shakes the earth. Both are cats, cousins of our amiable purring friend of the hearth

rug, but the tiger is king of the family.’

The Herald, 4 December 1936, 8. See also Deposition by Herbert Bede Cody, Customs

Officer, 4 December 1936, fifth sheet (NAA A432/85 36/1360). The deposition is also in Mrs

Freer’s file at A2998 1951/696 50-63. Paterson’s instruction is annexed to that copy: addressed

to Cody by name and dated 4 December 1936 (hence implemented that day), it merely cites

statutory Ministerial discretion and gives no reason for the ban (A2998 1951/696 64). The

provision cited is Immigration Act 1912 s 3J: ‘The Minister may, if he thinks fit, prevent an

intending immigrant from entering the Commonwealth, notwithstanding that a certificate of

health has been issued to the intending immigrant.’

Sworn statement by Norman Cowper and request for an Order that a Writ of Habeas Corpus

issue (NAA A432/85 36/1360).

R v Carter; Ex parte Kisch (1934) 52 CLR 221.

G C Bolton, ‘Evatt, Herbert Vere’ in Australian Dictionary of Biography (1996) vol 14, 109:

<http://www.adb.online.anu.edu.au/biogs/A140124b.htm> at 18 August 2006. Also, as one of

just two Labor-appointed judges on the High Court in 1936, Evatt J was a part of the majority

which granted Kisch’s appeal against his conviction as a prohibited immigrant after the

infamous dictation test in Scottish Gaelic (see Kisch, above n 7).

R v MacFarlane; Ex parte O’Flanagan and O’Kelly (1923) 32 CLR 518. For an excellent

account of the events preceding and following this case, see B Fitzpatrick, The Australian

Commonwealth: a Picture of the Community 1901-1955 (1956) 295-8.

Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36. See also Ken Buckley, Barbara

Dale and Wayne Reynolds, Doc Evatt: Patriot, Internationalist, Fighter and Scholar (1994)

46-9.

Dictating to One of ‘Us’: The Migration of Mrs Freer 253

Evatt J granted an order nisi for habeas corpus, returnable the same afternoon.

his decision at the end of the brief proceedings later in the day he concluded that

none of the arguments supporting Mrs Freer were valid. Accordingly, she remained

a prohibited immigrant and returned to New Zealand. She had been in Australia for

nine hours and had not been permitted to leave the Awatea.

After her return to Auckland, Mrs Freer condemned the test and stated that she

would continue to fight for admission to Australia.

She also stated that she was

prepared to appear before any tribunal or before Cabinet to put her case for

admission and, further, that she would abide by any decision reached by a

tribunal.

In Wellington, to where she then moved, she was apparently counselled

by her new legal adviser, Matthew Barnett, to refrain from comment on her

circumstances.

In the following months, Barnett lobbied for a lifting of the ban,

receiving various

confidential messages from Menzies.

Barnett played hard ball. In May 1936 he

informed Paterson that, while Mrs Freer had never been given any reason for her

exclusion, he assumed that the issue was the preservation of the Dewar family, that

Mrs Dewar had commenced legal proceedings against her husband (ie was suing for

divorce) and there was now no prospect of reviving the marriage. He added that, if a

decision to admit Mrs Freer – at least for six months, it was conceded – were not

taken before Parliament reassembled on 10 June, there would be no alternative but

to cease avoiding publicity and give to the avid press all of her correspondence on

the matter, including that between Lieutenant Dewar and his father.

No doubt not all of the public took Mrs Freer’s side. By November, her Auckland

lawyer Finlay was writing to Menzies about ‘wild’ public speculation that Mrs

Freer was ‘an International spy’, was engaged in the white slave trade and was ‘a

dope fiend’: the public was imagining ‘that she is anything and everything that in its

view would be alone sufficient justification for the peremptory harshness of the

treatment she received’.

Yet here he may have been pushing a line, for the origin

Copy of Order Nisi for Habeas Corpus signed by Justice H V Evatt and dated 4 December

1936 (NAA A432/85 36/1360).

DT 5 December 1936, 9.

The Herald (Melbourne), 7 December 1936, 2 and The Age (Melbourne), 8 December 1936,

10.

DT 17 December 1936, 2 and SMH 17 December 1936, 11.

Letter from Matthew Barnett to Attorney-General Menzies, 18 February 1937 (NAA A432/85

36/1360). This is the more formal of two letters written to Menzies on this day and was a

request, though Menzies, for a Cabinet reconsideration of Mrs Freer’s case.

See the two letters to Attorney-General Menzies, 18 February 1937: NAA A432 1936/1360

34-5 and 39-44.

See letter from R G Menzies to Mr O Barnett, 26 February 1937, NAA A432/85 43/1139 Folio

6; ibid March 26 Folio 8, April 13 Folio 17, April 29 Folio 18 and May 24 Folio 22.

See letter from Matthew Oliver Barnett to The Honourable T Paterson, 4 May 1937 with copy

to Attorney-General Menzies (NAA A6980 S203497 6-9).

All of this, of course, he denied: letter from G P Finlay (barrister and solicitor) to The Hon The

Attorney-General for the Commonwealth of Australia, 11 November 1936 (NAA A6980

254 Macquarie Law Journal (2005) Vol 5

of these accusations appears to have been Mrs Freer herself. Two weeks earlier, she

had speculated on what people might read into the fact that she was being so

resolutely excluded: ‘People will think that I am engaged in espionage, white

slavery, or drug running.’

Was she trying to deflect rumours that had reached her

ears? Or was Barnett reckoning that all’s fair in love and law?

Finally, however, when commentators persisted in holding up the case as an

illustration of the government’s shortcomings and when the affair was held to have

been an important ingredient in both Labor’s victory in the Gwydir by-election

and the failure of the constitutional referenda,

Federal Cabinet relented. The

admission decision was made on 2 June 1937 and announced immediately.

Mrs

Freer was delighted. Lieutenant Dewar stated that he was pleased by Cabinet’s

decision but that he had expected it, having just received orders posting him to

Western Australia.

Mrs Freer’s arrival in Sydney by the Wanganella on 12 July was a major public

event. The Sydney Morning Herald reported that she ‘was given a reception equal

to that of an international celebrity’. Before landing, she was presented with ‘a

shoal of congratulatory letters and telegrams’. ‘When the Wanganella berthed, the

wharf was black with people, with an overflow to the street. A line of cars and taxis

almost two miles long stretched down the pavements outside. Her walk from the

gangway to a waiting car had the elements of a procession of triumph.’ ‘I hold no

grudge against Mr. Paterson’, she said, adding ‘I do not intend to seek any redress

at Canberra.’

The Daily Telegraph, ever an ally, described her as ‘[t]all, slight and

charming’ and reported: ‘She expressed satisfaction “that a mere woman” had been

able to win out in face of the government, and said that she had no ill feeling

against Mr. Paterson. She was only sorry for him.’

Game, set and match.

S203497 63-7). The word ‘International’ appears to refer to the Communist International,

meaning that Mrs Freer was reckoned to be a Soviet agent. Barnett and Finlay were co-

operating closely.

DT 30 October 1936, 1.

See Editorial, ‘First Fruits of Gwydir’, CT 3 June 1937, 4.

See Editorial, ‘Chickens Home to Roost’, CT 8 March 1937, 2.

Minutes of Cabinet Meeting 2 June 1937 (NAA vol 17, part 2). The decision appears to have

been made immediately after receiving advice that day from Defence, after prompting from

Paterson, that they ‘will raise no objection’ to admitting Mrs Freer (NAA A6980 S203497 2).

One of the reasons for reversing the ban was that, by this time, Mrs Freer had lived peaceably

in New Zealand for six months: press release by Acting Prime Minister Dr Earle Page, 2 June

1937 (NAA CP290/1 BUNDLE 1/16 5).

CT 3 June 1937, 1.

SMH 12 July 1937 (NAA A2998 1951/696 17).

CT 13 July 1937, 1. There was considerable press and parliamentary scepticism that the

transfer – as far away as possible from Sydney – had been arranged as a precursor to the

decision to admit Mrs Freer. Allowing them to appear together in front of a crowd, with

photographers clicking away at The Kiss, would have been too much of a bad thing.

Dictating to One of ‘Us’: The Migration of Mrs Freer 255

However, not all was rosy. It would appear that Mrs Freer’s relationship with

Lieutenant Dewar had ended.

In addition, she was in straitened financial

circumstances. After arriving in Sydney she lived with an aunt and commenced

work as retail manageress of a Sydney beauty parlour in order to support herself.

100

She shunned further publicity.

If the government hoped in permitting Mrs Freer’s entry to escape further

parliamentary criticism over the case, it was to be disappointed. In the new session

of Parliament it was frequently reminded that it had never provided any evidence

for the accusations made by Paterson and that it had financially ruined Mrs Freer.

101

Two months later, Mrs Freer wrote to Menzies seeking compensation from the

government for her exclusion. She made mention of the anguish she had endured,

the expenses associated with her stay in New Zealand, the debts incurred in fighting

her case and the paid publicity opportunities she had not pursued since being

admitted to Australia.

102

Menzies reminded Mrs Freer of her lawyer’s undertaking

the she would not seek compensation,

103

but nonetheless offered to meet with her.

104

That meeting did not take place. However, Menzies promised to put a request for

compensation to Cabinet, Mrs Freer became distressed by the delays and Menzies

counselled patience.

105

Menzies sympathetically framed proposal for a committee to

make an act of grace payment to Mrs Freer was finally considered by the post-

election, differently constituted Cabinet on 16 December 1937. The proposal was

not approved.

106

So far, it seems that Paterson approved the administration of the dictation test on the

advice of public servants, without any substantial evidence to the effect that Mrs

Freer was an undesirable person. In doing so, he dug for himself a pit in which he

was to be buried. However, archive documents reveal that, all along, Paterson was

in possession of evidence that he was not prepared and perhaps simply not able to

use.

CT 9 June 1937, 1

100

SMH 26 June 1937, 17 and DT 26 June 1937, 2.

101

DT 18 June 1937, 2 and CPD vol 153, 27, 29, 87, 227, 272, 274, 535, 580, 586-8 and 691.

102

Handwritten note to Attorney-General Menzies from Mrs Mabel Freer dated 14 August 1937

(NAA A432/85 43/1139).

103

Letter from Matthew Barnett to Menzies, 18 February 1937: NAA A432 1936/1360 39-44 at

44.

104

Letter from Mrs Mabel Freer to Attorney-General Menzies, 24 August 1937 and ‘Personal’

letter from Menzies to Mrs Freer, 1 September 1937 (NAA A432/85 43/1139).

105

Telegrams dated 1 October, 15 November and 16 November 1937 (NAA A432/85 43/1139).

106

Minutes of Cabinet Meeting of 16 December 1937 (NAA vol 17, part 3). Menzies had written

to Cabinet: ‘I think there is no doubt that Mrs. Freer suffered severely as a result not only of

certain statements made in relation to her exclusion but also as the result of the non-disclosure

in detail of the reasons for her exclusion’ (NAA A432/72470; CP290/1 BUNDLE 1/16 2).

256 Macquarie Law Journal (2005) Vol 5

Firstly, there was slow and patchy evidence from the government of India. The

correspondence indicates that Paterson was never satisfied that it was sufficiently

solid.

107

Secondly, he had copies or reports of correspondence between Lieutenant Dewar’s

father, Mr R Dewar, and a senior Army officer, Major P S Myburg, apparently

commanding the regiment to which Lieutenant Dewar was temporarily attached.

Myburg had written to Dewar senior that Mrs Freer, supposedly divorced, had come

to Lahore and ‘from all we heard we gathered that she just lived by her wits and

gave herself to the biggest bidder [sic] her one idea being to find someone whose

would pay her expenses’.

108

Myburg had also written to the military officer who

was also the Secretary of the Department of External Affairs and indicated that the

interests of the Army and Lieutenant Dewar would be best served by the exclusion

of Mrs Freer. The Secretary of the Department of External Affairs passed that on to

the officials of Paterson’s Department, where it was apparently considered to be a

formal request from the Defence Department.

109

On 16 October 1936, exclusion by

customs officers was agreed by Ministry officials, anticipating Paterson’s approval,

which was given three days later.

110

The same document records that the Chief of

General Staff ‘urges that the woman be prevented from landing as if a scandal

arises, it will finish Dewar’s career, + will be detrimental to the interests of the staff

+ the service generally’.

111

This evidence supports the Daily Telegraph’s conclusion

in its report on the heated 2 December 1936 Cabinet meeting:

It was freely stated that Paterson had taken his original action on the advice of

officers without closely studying the documents, and that although in the House he

indicated that he was protecting Mrs Freer, actually he was protecting departmental

officers.

112

The summary quoted above, of ‘Information in Possession of Department’,

indicates the standard of evidence that those officers had been prepared to accept.

107

NAA CP290/1 BUNDLE1/16.

108

NAA A6980 S203497 228.

109

Copy of Minute to Chief of General Staff dated 17 November 1936 from Major B Combes,

Staff Corps; copy of Minute to Secretary dated 17 November 1936 from C B Laffan, Secretary

to the Military Board; and ‘Confidential’ Minute by Minister dated 20 November 1936 (NAA

A5954/1 973/13). See also letter from Lieutenant Dewar to Prime Minister Lyons, 25

November 1936, referring to ‘a forced marriage’ (NAA CP290/1 BUNDLE 1/16 25), and

letter from Lieutenant Dewar to Paterson the previous day (NAA A6980 S203496 54-5), in

which Dewar confesses: ‘Throughout my married life, my wife has never been as a wife to me

so I found the necessity of deceiving her and seeking unlawful relationships’. He does not state

where these adulteries took place. All the same, the reference to ‘necessity’ is not easy to

reconcile with there being young offspring of the marriage. In the same letter, Dewar claims

that Army officers and a chaplain had recommended against action either by the military or

‘under the Immigration Laws’, and that therefore he had been deceived.

110

Memorandum by J Horgan, 16 October 1936, initialed ‘Approved’ by Paterson on 19 October

(NAA A6980 S203497 235).

111

Ibid, annotation by J Horgan.

112

DT 3 December 1936, 1. Paterson had regularly denied in Parliament that he had taken the

decision without close examination of the documents.

Dictating to One of ‘Us’: The Migration of Mrs Freer 257

Thirdly, late in the day and in response to the publicity of the Freer affair came a

rambling handwritten letter to Paterson from a Mrs Irene MacArthur in Moradabad,

Uttar Pradesh. She accuses Mrs Freer’s sister Emily Ward of running off with her

husband, Captain MacArthur. The very scandal, she says, had lost Mr Ward his job.

She goes on to claim that her former husband, now living with Emily, does not need

to work since Emily earns enough to support them both. She does not specify

Emily’s source of income – implying that it is prostitution. Mrs MacArthur also

states that she had found Mrs Freer completely drunk in a hotel in Lahore, yet

drinking again the following evening. At one time Mrs Freer had gone off with an

unnamed major, who had paid for their accommodation. This sort of affair, she

says, is common. The police turn a blind eye to and even encourage them, and will

not provide evidence – for to implicate a British officer was more than any

policeman’s job was worth. Of course, Mrs MacArthur does not wish to be

‘vindictive’, and she notes that ‘the 5 Ward children are fair’, but ‘I know they have

dark relations on the Mothers [sic] side.’

113

There is no annotation as to the date of

receipt, but none of its content appears in the summary quoted above, so it probably

came later and indeed might have arrived after the ban on Mrs Freer had been

rescinded. But it is at least one more piece of evidence that the Freer affair

threatened to expose the British officer class in India.

A further threat came from Indian law. Captain Freer had instituted divorce

proceedings, citing Dewar.

114

Under the Indian Penal Code 1860 ss 497-8, Dewar

was then liable to be imprisoned for up to five years or fined, or both.

115

The

113

Letter from Mrs Irene MacArthur to The Right Hon Minister Patterson [sic], 19 November

1936: NAA A6980 S203497 27-31. Mrs MacArthur’s own reason for being in the hotel two

nights running was, naturally, respectable; she was accompanying her son, a jockey. Mrs

Freer’s autobiographical article (above n 30, records that there were three Ward boys and two

girls (who would be herself and Emily) and that not long (she is not sure exactly when) after

she was born her father ‘resigned his military career and took up the position of

Superintendent of the Medical Hostel at Lahore’. That Mrs Freer’s father, Major Myburg and

Lieutenant Dewar were all of the Royal Artillery does not mean much; it was and is a whole

army corps, composed of several regiments. Lieutenant Dewar retaliated against Myburg in a

letter to Prime Minister Lyons on 25 November 1936 (NAA CP290/1 BUNDLE 1/16 25),

describing Myburg as a man ‘whose own lack of reputation where ladies are concerned is well

known in India’ (A6980 S203496 54-5). Writing to Paterson the previous day, Dewar said that

on his leaving India Myburg had given him a sealed letter to deliver to ‘Mrs. McIlwraith of

South Yarra, so that the letter would not bear an Indian postage stamp or postmark. This letter

was destroyed for safety in Bombay, but I am not the only one who knows that it existed.’

(NAA A6980 S203496 55). It appears that Myburg may have persuaded Dewar to act as a go-

between and that Dewar got cold feet.

114

Cablegram from Secretary of State for India (to Ministry of the Interior), 27 November 1936

(NAA A6980 S203496 112).

115

Five years imprisonment or a fine or both, s 497 ‘Adultery’ (the wife could also be punished as

an abettor); two years imprisonment or a fine or both, s 498 ‘Enticing or taking away or

detaining with criminal intent a married woman’, <http://www.indialawinfo.com/

bareacts/ipc.html> at 27 August 2006. Walter Hunt advised of this in his letter to Paterson of

14 November 1936 (NAA A6980 S203497 102-8 at 106). He added that husband and wife

might collude to blackmail the co-respondent – ‘a favourite method in these cases’. Citing

258 Macquarie Law Journal (2005) Vol 5

prospect of him and other British officers being jailed in India for immorality was

appalling, but could have been difficult to avoid.

Hunt, Rowland James confronted Paterson with s 498 in the House on 26 November 1936

(CPD vol 152, 2331).

Dictating to One of ‘Us’: The Migration of Mrs Freer 259

IV THE CASE BEFORE JUSTICE EVATT

While Mrs Freer did not legally challenge her first exclusion from Australia, she

was evidently fully prepared for such a challenge on her second.

Although often overlooked in a catalogue of ‘White Australia’ migration decisions,

the decision of Evatt J in the habeas corpus proceedings of 4 December 1936

cleared up a surprising number of issues in relation to the operation of the test and

its consequences. This article analyses the transcript of proceedings before Evatt J,

as well as the reported decision. The reasoning as such could be the subject of

another article, in which Evatt’s reasoning in the Freer Case would be compared

with his reasoning in the Kisch Case and with the High Court’s reasoning in the

other cases that will be mentioned. The interest now, rather, will be in Evatt’s

attitude.

The Freer action was for a writ of habeas corpus, brought under Constitution s

75(iii), which provides the High Court with original jurisdiction in all matters in

which the Commonwealth, or a person suing or being sued on behalf of the

Commonwealth, is a party. The action was in the King’s name against the

Commonwealth and two officers thereof, including customs officer Cody. The

argument was that Mrs Freer was being unlawfully detained by Arthur Davey

(master of the Awatea) and Cody.

The transcript

116

demonstrates Evatt’s keen interest in the arguments put to him. He

is no passive observer: at times he takes upon himself the role of counsel,

developing and countering the arguments put to him and engaging in cross-

examination of witnesses. From beginning to end, his intimate knowledge of the

exclusion provisions of the Immigration Act and his analytical intelligence are on

prominent display.

Evatt makes clear that it is the task of Mr J W Spender KC (appearing on behalf of

the Commonwealth and Cody) to provide ‘answers to the habeas’,

117

yet afterwards

Spender is not much heard from as Evatt J deals with the various arguments put by

Mr J W Bavin (appearing for Mrs Freer).

118

As these arguments unfold and witnesses are examined, a number of peculiar things

become clear. It was revealed that Davey was not restraining Mrs Freer and that

(contrary to normal practice) he had received no notice requiring him to detain

her.

119

It is also revealed that Dr Monticone had refused to certify that Mrs Freer

116

Transcript of Proceedings Before His Honour Mr Justice Evatt, Sydney, Friday, 4

December

1936 At 1.30 PM (NAA A432/85 36/1360 = A2998 1951/696 68-101); hereafter, ‘Transcript’

(page numbers are those of the document itself).

117

Transcript, 1.

118

Bavin had been briefed by Sydney solicitors Allen, Allen & Hemsley.

119

Transcript, 6. A printed Deportation Order on which Mrs Freer’s name has been typed was

signed by Paterson but not dated and the vessel is not yet named: the order remained on file

260 Macquarie Law Journal (2005) Vol 5

had failed the test at its conclusion, because he had been of the view that she had

not attempted to pass it.

120

It is further revealed that Cody, the customs officer with

formal custody of Mrs Freer, possessed a ‘dual authority’ for preventing her from

landing; he had stopped her from disembarking because she had (allegedly) failed

the test provided for by s 3(a) of the Immigration Act and because he had an

authority from Paterson under s 3J to exclude her.

121

In his decision Evatt properly rejected the argument (which Spender had abandoned

during the hearing) that s 3J conferred on the Minister a general power of

exclusion.

122

Rather, the argument to which Evatt paid the greatest attention was

one that clearly excited him at the hearing. Put in its simplest form: Bavin was

arguing that the effect of amending the Act by removing the words that had made it

clear that the test language in s 3(a) was to be chosen by the dictating officer could

be that not the officer but the immigrant could now select the language in which the

test would be given. Bavin further submitted that there was thus no provision

authorising an officer of the Commonwealth to direct in which language the test

was to be administered.

123

Should this argument be accepted, Bavin contended, ‘it is

not necessary that I should put my case as far as to say that the immigrant is entitled

to choose the language, but I submit that is the problem’.

124

Bavin further submitted

that it had been held that it was ‘the very words “directed by the Officer” which

empowered the Officer to make an unrestricted choice from European languages’.

Further ‘the Legislature knew the old law, and the interpretation the Court had

placed upon it’ and had nonetheless amended the section and removed the crucial

words.

125

Evatt agreed that this was a novel argument, stating: ‘it is quite true [the Act] does

not in terms say the officer is to select the language’.

126

And, while Evatt appeared

intensely interested in this argument, it was on making the provision mesh with the

underlying intention of the Act that Bavin failed.

(NAA A432 1936/1360 56). It is addressed ‘To the MASTER, s.s.’ (vessel name to be filled

in) and relates to a person who has been ‘found within the Commonwealth in contravention or

evasion of the Immigration Act’. The person is to be deported and for that purpose is to ‘be

kept in the custody of the bearer of this Order’. This seems to be an order in readiness for the

possibility (which was feared) that Mrs Freer might slip through.

120

Transcript, 17-18.

121

This provision permitted the Minister to decide that someone could be a prohibited immigrant

even if he or she possessed a health certificate. See especially Transcript, 9-10, but discussion

of this matter is scattered throughout the record.

122

Freer at 385.

123

Transcript, 25.

124

Transcript, 25-6.

125

Transcript, 28.

126

Transcript, 27.

Dictating to One of ‘Us’: The Migration of Mrs Freer 261

Being pushed by Evatt to support his argument by providing an alternative purpose

for the provision, Bavin submitted that s 3(a) had really been intended to exclude

illiterates as undesirable persons.

127

Evatt did not agree.

128

It was on the underlying purpose of the Immigration Act that Evatt focused in the

short judgment, handed down later that day. He dismissed out of hand the argument

raised by Spender that s 3J of the Act conferred ‘an absolute and unqualified power’

on the Minister to exclude a potential immigrant. The power was, rather, to exclude

an immigrant on grounds of health even though they possessed a health

certificate.

129

Referring to the history of s 3(a) as ‘one of extraordinary interest’, Evatt noted: ‘It

is quite clear that, by executive action, there has been a remarkable turning or

twisting of the original scheme of the Commonwealth Parliament in prescribing a

failure to pass the dictation test as itself making the person failing a prohibited

immigrant’.

130

Originally, the Act had clearly been intended as a device to exclude

‘persons deemed unsuitable because of their Asiatic or non-European race’.

131

However, Evatt noted, the ‘blanket words’ of the section had ‘in modern times …

been found sufficiently wide to cover not only any person of European race, but

British subjects of European race’.

132

Considering the history of the section, Evatt was unable to find, as a matter of

statutory construction, that the officer of the Commonwealth was not able to select

the language from just ‘any European language’. However, he acknowledged that

‘[w]hile the Act does not specifically state that the European language is to be

selected by the person administering the dictation test, this is the necessary result of

the fact that the first of the two events is controlled by the person who dictates; and

that it is nowhere suggested that the person arriving has the right of selecting the

European language, a right which would entirely contradict and defeat the object of

the legislation’.

133

Thus, Evatt recognised the unavoidable conclusion that the

overwhelming purpose of the Immigration Act was exclusion.

In conclusion, Evatt noted that the test operated objectively: the immigrant

automatically became a prohibited immigrant upon the occurrence of the events

127

Transcript, 29. This argument had been discussed in the press, with an article in the Daily

Telegraph arguing that the test might have been unconstitutional. It was suggested that it was

actually a test of ‘education’ – as was the Natal test upon which it was modeled – and the

Commonwealth Constitution granted the federal parliament no power over education: DT 27

November 1936, 1; cp Yarwood, above n 3, 21.

128

Transcript, 31.

129

Freer at 385. The rationale was presumably that the immigrant might have manifested or

picked up an illness in transit. It is interesting to contrast Evatt J’s statement with recent

judicial pronouncements on the executive power to exclude immigrants and aliens under the

current Migration Act 1958 (Cth) and/or by use of the royal prerogative. See, for example,

Ruddock v Vadarlis (2001) 183 ALR 1.

130

Freer at 386.

131

Freer at 386.

132

Freer at 387.

133

Freer at 387-8.

262 Macquarie Law Journal (2005) Vol 5

specified in s 3(a). Thus, he stated, it was not for the court to enquire into the

suitability of the immigrant.

134

With this statement, it appears that Evatt legitimated

the ‘twisting and turning’ of the original scheme of the Act. At the same time – and

this is ‘Doc’ Evatt, one of Australia’s greatest champions of human rights

135

– in

applying the law with care, he explored the role of judicial review of administrative

action, at that time an area of the law in a state of retarded development. In holding

that the decision was unreviewable because Parliament had not provided for

review,

136

he raised the issue of whether the courts might be more adventurous in

the face of an ‘abuse of the power’.

137

In holding that the court could not interfere

even though the decision might have been ‘based upon inaccurate or misleading

information’,

138

he raised the question of whether that was an appropriate state of

the law.

139

Referring to Bavin and citing a famous Lord Chancellor, he declares that

‘the ingenuity and zeal of counsel are never misplaced when exercised for the

defence of the personal liberty of the subject’.

140

And he completes this with the

other side of the coin:

I entirely agree with Mr. Bavin that it must not be thought for an instant that, in

refusing the present application, the court is in any way indorsing or confirming the

justice of any executive decision to exclude. Further[,] no question whatever has

been or could be raised before me as to the personal character or reputation of the

applicant. They remain quite unaffected by the decision of the court.

141

Not for an instant, indeed. Yet cold comfort to Mrs Freer as the ship bore her

towards New Zealand once more.

In 1939, Mrs Freer remarried in Australia.

142

Her name had been dragged through

the mud and the Parliament. She had lost her financial security and the relationship

that had originally brought her half way around the world. The story appears tragic,

though perhaps it did have a happy ending with her new marriage. By this point,

though, the drama had ceased to captivate the public imagination and Mrs Freer had

faded from public view.

V I

MPLICATIONS OF THE CASE

134

Freer at 389.

135

See Buckley, Dale and Reynolds, above n 82.

136

Freer at 389.

137

Today’s law, judicially created, is that a decision is reviewable unless review is excluded by

clear words of the authorising statute: Annetts v McCann (1990) 170 CLR 569.

138

Freer at 389.

139

Today, a decision may be overturned if it could well have been different had the decision-

maker not taken irrelevant information into account or not omitted to take relevant information

into account: eg Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5, which also

contains related grounds and more or less codifies developed case law.

140

Freer at 386.

141

Freer at 389.

142

Gavin Souter, Acts of Parliament: a Narrative History of Australia’s Federal Legislature

(1988) 305.

Dictating to One of ‘Us’: The Migration of Mrs Freer 263

Several cases remain as well remembered exercises – perhaps abuses – of the

Immigration Act to exclude those who did not fit well with the government’s ideals.

But Mrs Freer’s case is not one of them. However, her case deserves to be

remembered, because it illustrates important points in the history of Australia’s

migration scheme which still hold relevance. These points include the question of

Australian governments’ motivations to exclude potential immigrants, the vexed

issue of how to deal with British subjects, the politically charged nature of

migration decisions, and Australian moral attitudes under threat.

A Motivations to Exclude

The Freer affair is of significance because it demonstrates that the contentious

immigration and deportation decisions made by the Lyons government and by

conservative Australian governments between the two world wars

143

were not

confined to a fear of working-class radicalism. Motivations to exclude were in fact

far wider.

Several cases are generally cited for the now widely accepted proposition that the

White Australia Policy served two useful governmental goals: excluding Asian and

other non-white immigrants; and preventing the entry or providing for the

deportation of persons associated with communism or socialism, of radical union

leaders and of Irish nationalists. These are the Kisch Case, the case of Walsh and

Johnson and the Irish Envoys case.

144

The case – already mentioned – of prominent Czech journalist Egon Kisch is most

closely in point since it involved a dictation test. The case has been so well reported

and analysed that it suffices here to set out very briefly the facts surrounding his

exclusion from Australia. Kisch came to Australia to speak against fascism. He was

supported by the International Labour Defence and was a communist. The

government’s attempts to exclude him included twice declaring him a prohibited

immigrant, prosecuting him twice for so being, and (most famously) applying a

dictation test to him in Scots Gaelic – a choice forced upon them by his

extraordinary facility with European languages.

145

Kisch also had strong personal

flair, taking such memorable actions as leaping from the ship on which he was

143

Others, apart from those about to be mentioned, were the decisions to deport Father Charles

Jerger in 1920, to admit the German propagandist Count von Luckner in 1937 and to deport a

large number of Victorian Chinese.

144

Mary Crock, Immigration and Refugee Law in Australia (1998) 65. See further Blackshield

and Williams, above n 1, 930-47. For more on the nexus between trade unionism and

restrictive immigration policies, see Kenneth Rivett (ed), Immigration: Control of Colour Bar

(1962) 13 and H I London, Non-White Immigration and the ‘White Australia’ Policy (1970)

158-9.

145

York, above n 3, 28, credits him with fluency in ten European languages. He had even picked

up a little Gaelic (but not enough) from a Scotsman he had met on the Strathaird, Kisch, above

n 7, 73.

264 Macquarie Law Journal (2005) Vol 5

detained – breaking a leg in the process, which guaranteed him attention both at the

time and subsequently.

146

Walsh and Johnson, the leaders of the Australian Seamen’s Union, had mounted a

campaign of militancy culminating in a labour strike. Both were subsequently

detained in custody pending deportation in pursuance of an order made under s

8AA of the Immigration Act. This provision had been enacted specifically to enable

their removal from Australia.

147

Both Walsh and Johnson had been long-term

residents of Australia; they had made their homes here. Tom Walsh, born in Ireland,

had arrived in New South Wales before Federation, and had since that time

remained in Australia. Jacob Johnson, born in The Netherlands, had come to

Australia in 1910 and had been naturalised here three years later. The High Court

rebuffed the government’s intention to expel the men in Ex parte Walsh and

Johnson; In re Yates,

148

holding that the Act could not apply to the men as they

were not immigrants; rather, they were members of the Australian community.

The Reverend Father Michael O’Flanagan and Mr John O’Kelly visited Australia in

1923, under the auspices of catholic archbishop Daniel Mannix, to enlighten

Australians against the agreement to split Ireland into a catholic Irish Free State and

a predominantly protestant Northern Ireland. Their visit was opposed by militant

Australian protestants and by some Australian catholics, who were worried that it

might exacerbate sectarian tension. The two envoys were prosecuted for sedition,

but the government may have realised that it would be difficult to make that charge

stick when all that the envoys had in mind was to engage in peaceful political

argument. Before the case could be heard, the two were required to appear before a

Board constituted under the Immigration Act s 8A, to show cause why they should

not be deported. They failed in a challenge to the constitutionality of the hearing.

The High Court rejected their arguments that legislation under the constitutional

power to make laws with respect to immigration and emigration could not apply to

British subjects and that, even if it could, it did not apply to mere visitors.

149

The

146

Kisch, above n 7. Kisch records (ibid 42) that another anti-war activist invited to speak in

Australia, Irishman (and therefore British subject) Gerald Griffin, had been given a dictation

test in Dutch, which he had failed as he was meant to do. Kisch goes on to tell with gusto how

Griffin then entered Australia under a false name and led the authorities a merry dance as he

popped up unannounced to speak at meeting after meeting.

147

Section 8AA provided (in effect) that any person not born in Australia, who interfered with

trade or commerce between or among the states such as constituted a threat to the peace, order

or good government of the Commonwealth, could be summoned to show cause as to why he

should not be deported. The provision operated in times when a proclamation had been issued,

stating that a ‘serious industrial disturbance prejudicing or threatening the peace, order or good

government of the Commonwealth’ existed at that time.

148

(1925) 37 CLR 3.

149

One judge dissented, but only to the extent that in his view intervention by the High Court

would be premature. The Australian federal constitution, which came into force in 1901,

contains separate heads of legislative power with respect to ‘Immigration and Emigration’ s

51(xxvii), and to ‘Naturalization and Aliens’ s 51(xix). The effect of this separation was to

make it possible to handle as immigrants persons born overseas who were British subjects and

therefore were not aliens.

Dictating to One of ‘Us’: The Migration of Mrs Freer 265

case almost ludicrously involved two visiting British subjects who did not want to

be British defending what they believed to be their rights as British subjects.

Why is it that the events surrounding these personalities have so comprehensively

overshadowed those involving Mrs Freer? Two reasons exist. The first involves the

legal and political significance of the cases, the second their human element.

B Legal and Political Significance of the Cases

The lengths to which the respective governments went in order to rid Australia of

Kisch, of Walsh and Johnson, and of the Irish envoys were extraordinary. The sheer

volume of the legal proceedings initiated by the Lyons government in the four

months between Kisch’s arrival in Fremantle and his final departure, along with the

surveillance and public order measures taken by the government during Kisch’s

trip, attests to the government’s determination to see him off.

150

In the case of

Walsh and Johnson, the legislative change illustrates an almost hysterical response

to their union activities. In that of the Irish envoys, the over-reacting with a

prosecution for sedition and then the hasty summoning to a tribunal that could order

deportation smacked of desperation. These cumulative efforts better illustrate the

artillery at the disposal of a vindictive government and make the two dictation tests

imposed on Mrs Freer, and a solitary habeas corpus action, seem like very modest

troubles.

A further fact that may account for the greater prominence accorded those other

affairs is that they better demonstrate the conservatism of the governments

involved. For example, the UAP and the forces of conservatism in Australian public

life seem to have been united in their opposition to the presence of Kisch. A united

front of liberals, socialists and communists opposed them. Likewise, the Walsh and

Johnson situation polarised union supporters against conservative interests. In the

Freer Case, however, the battle lines were not so clearly drawn. In the major

parliamentary skirmishes in early November, the Labor Party played a minor role.

Most of Paterson’s attackers on each occasion were members of the UAP and the

most unrelenting of them was without doubt William McCall, the Member for

Martin.

151

UAP Ministers too were not supportive of Paterson. Opposition leader

John Curtin curiously explained the Labor Party’s comparative silence by stating

that, in the absence of evidence of Mrs Freer’s undesirability, the party was ‘in no

position to decide whether she is an undesirable immigrant’.

152

In fact, some of the

conservative forces that were prominent in the campaign against Kisch, like the

Sydney Morning Herald, pressured the government to admit Mrs Freer.

153

150

See Kisch and Zogbaum, both above n 7.

151

CPD vol 152, 1469-70 and 1765-78.

152

DT 21 November 1936, 2.

153

See SMH 2 December 1936, 14; 4 December 1936, 12; 1 June 1937, 10. See also letter dated 5

April 1937 to R G Menzies, Attorney-General, from W Fairfax, Managing Director, John

Fairfax & Sons: NAA A432/85 43/1139 Folio 24. The Fairfax company, then as now,

published the Sydney Morning Herald.

266 Macquarie Law Journal (2005) Vol 5

This last point raises a further reason for historians’ greater interest in the Kisch

affair. That affair cast a bad light on Menzies (who was to dominate the middle

decades of the century, as Australia’s longest-serving Prime Minister), while his

role in the Freer affair was not an egregiously wicked one. The Kisch Case also

seemed to be a precursor to his later attempts to ban the Communist Party of

Australia. Conversely, the role of the ALP in the Kisch affair was laudable but, in

the Freer affair, was unremarkable.

For legal historians, the Kisch affair is of significance because the litigation actually

brought about changes to the existing law: the legislature added to s 5 of the

Immigration Act a sub-section empowering deportation by Ministerial order of a

prohibited immigrant who had ‘evaded an officer’.

154

The legislation introduced to

expel Walsh and Johnson is of similar import in elucidating the development of

Australia’s migration regime.

155

Moreover, more than one of the judgments handed

down by the courts regarding Kisch have remained important statements of the law

in the fields beyond immigration.

156

Likewise, the litigation in Walsh and Johnson’s

case continues to inform High Court judgments in the migration area.

157

The Freer

litigation is remembered (if at all) as largely unremarkable, despite the interesting

issues raised both in argument and in Evatt J’s judgment.

C Human Interest

The human element to each of the stories should not be discounted as playing a part

in their allure – both at the time and subsequently. The picture of a genteel English

woman separated from the man she loved, subjected to the accusations of a

powerful politician made under the cloak of parliamentary privilege and waiting in

a foreign land for events to turn in her favour was doubtless a touching one. Walsh

and Johnson’s case would have elicited similar sympathy because the action was to

expel them from their homes, rather than to prevent their entry. Both of them had

lived in Australia for some time and, even on a strict and legalistic view, were

regarded as members of the community who had made their homes here and

154

B Fitzpatrick, The Australian Commonwealth: a Picture of the Community 1901-1955 (1956)

295.

155

See Crock, above n 144, 65.

156

For example, Enid Campbell and Harry Whitmore see as noteworthy the views of the judges in

R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 to the effect that the courts’ role in

preserving the federal system requires greater protection of the courts’ dignity and authority:

Freedom in Australia (1973) 312. R v Fletcher; Ex parte Kisch (1935) 52 CLR 248 – the

second of the Scottish Gaelic contempt cases – is cited by the same commentators as authority

for the principle that a plea of fair comment will not be accepted in contempt proceedings

when the publication fails to give its readers ‘a fair and adequate account of the reasons which

the Court had advanced in support of its conclusion’: ibid 311. The same case is also cited as

authority for the proposition that publication that may have a prejudicial effect on pending

litigation is criminal contempt and that, accordingly, guilt must be proved beyond a reasonable

doubt: ibid 301.

157

See, for example: Koon Wing Lau v Calwell (1949) 80 CLR 533, Re Patterson; Ex parte

Taylor (2001) 207 CLR 391 and Plaintiff S157/2002 v Commonwealth (2003) 201 ALR 1.

Dictating to One of ‘Us’: The Migration of Mrs Freer 267

become part of the Australian polity.

158

Kisch, while an outsider, was in Australia

(in a way) and was an active participant in the various proceedings which decided

his future. He enlisted support for the anti-fascist cause through a ready-made

organisation, in the form of the International Labour Defence. He was also

personally well placed – as a writer – to record his own story for the public of his

time and thereafter.

159

Kisch, Walsh and Johnson, and the Irish envoys, also had the tactical advantages

that they were in the country and in addition were members or had the backing of

powerful organisations, skilled at disseminating and manipulating the stories to

their own greatest advantage. In contrast, Mrs Freer was hampered by the fact that

she had to pursue her particular cause – the rehabilitation of her reputation along

with admission to Australia – from afar. Even during her habeas corpus

proceedings, Mrs Freer was not present. While it is true that the Council for Civil

Liberties organised a letter writing scheme

160

on behalf of Mrs Freer, it would not

seem that she otherwise had any organised popular support.

161

Although precisely

this isolation attracted the support of newspapers and of members of the federal

parliament, who (though doubtless also with a second agenda) harried Paterson, in

particular, in the House.

Why, then, have the other cases remained in the public and legal memories while

that of Mrs Freer has dropped out? The matter of the legal memory is the easier to

explain: the other cases got up to a full court of the High Court and continue to

serve as precedents.

162

As to the public memory: those other cases have been

consistently used to illustrate, even as conclusive proof, that the fear of working-

class radicalism would drive Australian governments to extreme tactics. By

contrast, on the political level the Freer affair was merely a blunder which exposed

the preparedness of a Minister to use his statutory powers to impose his own (or his

Department’s) values on strangers. It otherwise made clear the preparedness of

UAP Ministers to place the retention of power above the fair treatment of a foreign

woman. It did not conclusively prove any governmental agenda, nor did it mobilise

or politicise a clear segment of the Australian community. Beyond the publicity of

1936 and 1937, Mrs Freer as victim has appeared to symbolise a Britishness and a

white identity that Australians have been keen to put behind them. Only in the light

of the documentary evidence presented here does it emerge that her being a woman

was a major factor in her treatment.

158

Ex parte Walsh v Johnson; In re Yates (1925) 37 CLR 3 at 62-5, per Knox CJ.

159

See Kisch, above n 7.

160

DT 24 November 1936, 1.

161

There was also something both ironic and just about Kisch being given so much attention as a

result of government efforts to remove him and about him being free to address meetings

across the country while the government made every effort to detain him. There was no

equivalent justice in Mrs Freer’s story.

162

Had Mrs Freer been better resourced, she might have appealed to a full court of the High

Court. Evatt J’s judgment can be read as inviting an appeal so that the law might develop.

268 Macquarie Law Journal (2005) Vol 5

There was also, however, a question of privacy. While all of those involved in the

other cases courted maximum publicity, Mrs Freer always sought privacy and

eventually she was willingly allowed it. The Daily Telegraph editorialised, while

reporting her arrival in Sydney, that the publicity about her had not been of her

seeking and she should now be permitted to forget it.

163

One can, however, wonder

whether the press would ever have been given such publicity had she not been (by

accounts of both friend and foe) good-looking.

The Freer Case, by its very contrast with the more famous and well-remembered

cases, illustrates both history’s selective memory regarding the uses of the White

Australia Policy and its dictation test; and the manipulability of those policy tools.

D Excluding British Subjects

The fact that the Freer Case involved banning a British subject from entry into

Australia might be thought to be the most significant aspect of the case. However,

returns detailing the persons refused admission to Australia each year reveal that

persons of British nationality were usually amongst those excluded in each of the

years between 1902 and 1936.

164

The first British passport holder to be excluded by

use of the test, an Irish woman, had been excluded in 1914 after a dictation test in

Swedish.

165

So Mrs Freer was neither the first nor the only British subject to be

given the test in an alien tongue.

The reasons for exclusion of persons of British nationality in the years until 1935

would seem to cover the prescribed spectrum, with the possession of criminal

records and the harbouring of disease being of roughly equal importance as

excluding factors. However, individuals listed as being of British nationality were

sometimes excluded by means of the dictation test: three in 1923, four in 1926, two

in 1930, two in 1933 and two more in 1934.

166

Albeit that the returns do not specify

the racial origins of persons of British nationality and, as a consequence, do not

indicate how many of these individuals were white Britons like Mrs Freer.

Despite these figures, public discussion about the Freer affair was notable for the

surprise that greeted the application of the dictation test to Mrs Freer, being a

British subject.

167

This surprise was doubtless fuelled by a view that Mrs Freer was

correct when she claimed: ‘I have a British passport, which enables me to land in

163

DT 13 July 1937, 6. See also ‘Mrs. Freer Wants Quiet’, ibid 7 (describing her as ‘a radiant

figure’).

164

See the annual returns contained in York, above n 4. The largest numbers of persons of British

nationality were refused admission in 1911 (26), 1912 (41), 1913 (35) and 1914 (27). It should

be noted that the returns do not specify the racial origins of persons of British nationality and,

as a consequence, do not indicate how many of these individuals were white Britons.

165

Yarwood, above n 3, 27-8; citing Adelaide Advertiser, 17 November 1914.

166

See the annual returns contained in York, above n 4.

167

This surprise was the subjeCT in part, of an editorial in the Sydney Morning Herald on 5

November 1936. The editorial repeated the view of Departmental officials that a passport

holder was still subject to local regulations, even within the British Empire: SMH 5 November

1936, 10. See also DT 4 November 1936 2; 10 November 1936, 2; and 25 November 1936, 2.

Dictating to One of ‘Us’: The Migration of Mrs Freer 269

any British Dominion’.

168

A statement on the part of the government that the

possession of a British passport did not exempt the holder from compliance with

any local regulations

169

probably increased apprehensions, as most of the passport

holders in Australia in 1936 would have possessed British passports, there being no

separate Australian citizenship at that time.

170

Apprehension among Australians that

they might be subjected to the test on their return from overseas travel may have

been created, or exacerbated, by a suggestion on the part of an anonymous

constitutional authority that the test could be employed against a British passport

holder – although (the author supposed) it had not been the intention of the framers

of the Act that it would be so used.

171

The commonly held view that white British

subjects had unimpeded access to the various Dominions constituting the British

Empire is significant in that it demonstrates a widespread misunderstanding of the

benefits attached to the status of British subject. That this was not an outlandish

view to have held is demonstrated by the reasons of Higgins J in the Irish Envoys

Case.

172

The dismay about the application of the test to a white British subject may also

indicate, despite suggestions that a cultural nationalism was rampant in this period,

that more importance was attached by Australians to the status of British subject

and to ‘citizenship’ of the British Empire than to Australian national citizenship.

This preference for the status of British subject (although based on a

misunderstanding as to the privileges attached to the status of the subject) arguably

casts doubt on the idea of an ‘Australian community’, on which a number of

important early immigration cases were conceptually dependent.

173

An apparent

preference for the status of British subject (regardless of the fact that it may have

been founded in part on a misunderstanding as to the attached rights) over that of

Australian citizen would also explain the lack of any legislation to define Australian

citizenship, at the time when other nations, such as Canada and South Africa, were

so legislating.

174

168

DT 30 October 1936, 1.

169

SMH 3 November 1936, 11.

170

An Australian citizenship was created from 1949 by the Nationality and Citizenship Act 1948

(Cth), retitled in 1969 as the Australian Citizenship Act 1948. See further: Kim Rubenstein,

‘Citizenship and the Centenary – Inclusion and Exclusion in 20th Century Australia’ (2000) 24

Melbourne University Law Review 576.

171

The anonymous authority was probably Robert Garran, who in this period wrote a number of

articles about legal matters for Sydney Morning Herald – such as the commentary on

immigration law and the Freer case at SMH 6 November 1936, 12. The anonymous authority

in the 3 November article states that, even though it was not intended that the test be applied to

British subjects, ‘a way was left open for a test in a European language to be applied to a

British subject’ (SMH 3 November 1936, 11).

172

R v Macfarlane; Ex parte O’Flanagan and O’Kelly (1923) 32 CLR 518, 565-77.

173

These also included Potter v Minahan (1908) 7 CLR 308 and Donohoe v Wong Sau (1925) 36

CLR 404. This idea remains current in the judicially generated test that an immigrant may be

free from restriction by migration law if they have become ‘absorbed’ into the Australian

community or ‘body politic’: eg Nolan v Minister for Immigration and Ethnic Affairs (1988)

165 CLR 178.

174

SMH 12 June 1937, 17.

270 Macquarie Law Journal (2005) Vol 5

This confusion over belonging, as a British subject, to the ‘Australian community’

has – perhaps surprisingly – continued as a current issue in migration law. The

disjuncture between legal membership of the Australian community, which appears

to have been settled somewhere in the 1980s with the passage of the Australia

Acts,

175

and the idea of a special status of British subjects within Australian law

continues to haunt the High Court’s decisions on the exclusion of prohibited

immigrants. In fact, until very recently, the decisions of the High Court on the scope

of the constitutional ‘aliens power’ exhibited a peculiar tendency to raise arguments

regarding the fundamental question of the status of many ‘members of the

Australian community’ – especially white British subjects – who had made their

homes in Australia and were for all intents and purposes Australian, save a crucial

piece of documentation: the passport. The line of cases beginning with Nolan and

culminating (so far) in late 2004 with Singh

176

held, after much wrangling and

semantic gymnastics, that those who are not citizens are therefore aliens, regardless

of their ‘membership’ of the Australian community. These cases are important for

many reasons, not least because they illustrate a continued belief among Australians

(including Australians on the High Court) that our history and culture include

special preferences for those like Mrs Freer: British subjects.

177

If there are significant aspects of the public discussion of the Freer Case, they must

include the ease with which critics of Paterson’s actions were able to translate

deficiencies in the government’s handling of the case into breaches of important

principles of British justice or of common law rights. Commentators in the

newspapers, representatives of community groups and speakers in local legislatures

referred repeatedly to ‘the liberty of the subject’. As early as July 1936 it was

declared: ‘It is unthinkable in a democracy for a man or woman to be condemned

without trial, by a secret tribunal.’

178

By November, the commentators had warmed

to the task. The treatment of Mrs Freer breached, it was alleged, ‘the vital principle

of individual liberty’.

179

It was suggested that ‘no one should be tried in the dark’

180

175

Australia Act 1986 (Cth) and Australia Act 1986 (UK). On the relevant timing of Australia’s

independence for matters of immigration and alien status see Sue v Hill (1999) 199 CLR 462,

Re Patterson; Ex parte Taylor (2001) 207 CLR 391 and Shaw v Minister for Immigration and

Multicultural Affairs (2003) 203 ALR 143.

176

Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178; Re Patterson; Ex

parte Taylor (2001) 207 CLR 391, Shaw v Minister for Immigration and Multicultural Affairs

(2003) 203 ALR 143, Singh v Commonwealth (2004) 209 ALR 355. In Singh, the parents were

Indians and had entered Australia without visas; the issue was the status of their daughter, born

in Australia in 1998.

177

A remaining preference (the only one known to the authors) is that British subjects who have

not become Australian citizens and who were on the electoral roll before 26 January 1984 are

able to vote in elections: Commonwealth Electoral Act 1918 (Cth) s 93(1)(b)(ii). This is a

preference in that for this group voting is voluntary whereas for all Australian citizens it is

compulsory. British nationals can be naturalised as Australians with no effect on their British

nationality.

178

DT 13 July 1936, 6.

179

Editorial, ‘Paterson and a Principle’, DT 12 November 1936, 6.

Dictating to One of ‘Us’: The Migration of Mrs Freer 271

and that ‘Star Chamber methods have never been acceptable to Australians’.

181

Reference was made to the ‘right of a British subject to know the offence for which

he or she has been cruelly punished’

182

and to ‘the basic principle of British law that

justice shall be denied to none, and that all shall be heard before they are

condemned’.

183

Reference was also made to ‘the right of individual freedom for all

citizens who have committed no crime against British law’.

184

It was suggested that

‘the accused should have an opportunity to prove innocence to courts of the land’,

185

and that there should not be ‘reliance on hearsay evidence’.

186

Reference was also

made to Magna Carta

187

and to natural justice.

188

These are typical of the many

references – some direct, others oblique – to British legal principles and rights

throughout the course of the affair. Such widespread recourse to these terms says a

great deal about the importance of the British legal heritage to the culture of white

Australians in the period.

Equally prominent in the public discourse about the Freer affair were expressions

indicating a heightened antipathy to bureaucratic decision-making (which, so it was

reasoned, was not subject to public scrutiny, as was the making of statutes) and the

intrusions of the executive on individual freedoms. A number of writers, including

leading English judge Lord Hewart, gave credence to these notions from the late

1920s.

189

There was widespread dissatisfaction with the secrecy surrounding the

decision to ban Mrs Freer and the curtailment of freedoms by executive action that

the ban exemplified.

190

There was even greater dissatisfaction with the intrusion of

the executive into a domestic matter or one appropriately left for the courts to

resolve.

191

E Political Implications and the Coalition Government

The case is of direct political significance, because it nearly brought an end to the

coalition arrangement between the United Australia Party and the Country Party in

180

DT 6 November 1936, 6. For her plight raised a core issue of civil liberties: ‘It is unthinkable

in a democracy’, declared the Daily Telegraph, ‘for a man or woman to be condemned without

trial, by a secret tribunal. This is what happened to Mrs Freer.’ (DT 13 July 1936, 6).

181

Motion before the 1937 Convention of the Women’s Coordinating Council of the United

Australia Party: SMH 26 November 1936, 11.

182

DT 6 November 1936, 6.

183

SMH 5 November 1936, 5.

184

DT 12 November 1936, 6.

185

CPD vol 152, 1773.

186

DT 3 December 1936, 2.

187

DT 5 December 1936, 9.

188

DT 27 November 1936, 6.

189

See D C Pearce, Delegated Legislation in Australia and New Zealand (1977) 4; referring to

Lord Hewart, The New Despotism (1929).

190

For example, see the statement by Mrs P Cameron, President of the Feminist Club (DT 4

November 1936, 2). See also DT 3 November 1936, 6; SMH 3 December 1936, 9 and DT 8

December 1936, 5.

191

For an example, see the speech by UAP member Harold Holt (CPD vol 152, 1773). See also

editorial, SMH 5 November 1936, 10.

272 Macquarie Law Journal (2005) Vol 5

the first days of December 1936. Country Party Ministers constituted the majority at

the first meeting of Cabinet to be informed of the decision by the Country Party’s

Minister for the Interior, Paterson, to exclude Mrs Freer.

192

Neither Lyons nor

Menzies was at this Cabinet meeting, at which a reversal decision could,

presumably, still have been made without disastrous consequences. Thereafter,

United Australia Party members of Cabinet were notable for their (at best)

lukewarm support for Paterson; it was noted in both the Parliament and the press

that, in the crucial debate about the Freer affair in the House of Representatives on

12 November 1936, not one UAP Minister spoke in support of Paterson.

193

Newspaper reports throughout November indicated that a group of UAP Ministers

within Cabinet was dissatisfied with the exclusion decision,

194

while UAP

backbenchers were openly critical of Paterson and were more to the fore in attacks

on Paterson than were members of the ALP Opposition. In late November, after

Paterson’s reliance on the evidence of a convicted perjurer was revealed,

195

calls for

the Minister’s resignation increased.

Prior to the Cabinet meeting scheduled for 2 December, a meeting between Lyons

and Menzies allegedly resolved that a lifting of the ban should be recommended;

commentators suggested that this would give Paterson no option but to resign.

196

was at this point that Country Party members signalled that they would withdraw

their support from the Ministry if Paterson was placed in a situation in which he

would have to resign. Cabinet decided to continue the ban at its meeting on 2

December 1936

197

; Paterson’s position was temporarily secured and a split was

averted.

192

Minutes of Cabinet Meeting of 4 November 1936 (NAA vol 16, part 2).

193

SMH 13 November 1936, 12; DT 13 November 1936, 1.

194

DT 7 November 1936, 5; 9 November 1936, 1; 11 November 1936, 1 and 6, and SMH 16

November 1936, 9.

195

CPD vol 152, 2672-4. One of Paterson’s pursuers was Rowland James, Member for Hunter.

The informant was Walter Hunt, then living in Sydney, who had claimed that Mrs Freer was

the same person as a ‘Vera’ Freer of whose adventurism he had been a victim in Bangalore.

His motive seems to have been to gain employment though Paterson. The eventually

acrimonious correspondence with Hunt appears to be comprehensively preserved in Mrs

Freer’s file, NAA A2998 1951/696. See also the record, dated 18 November 1936, of an

official’s interview with Hunt as directed by Paterson (NAA A6980 S203497 87-9). James

quoted Hunt’s correspondence extensively when attacking Paterson in the House on 26

November 1936 (CPD vol 152, 2331), but did not say how he came by it.

196

See especially DT 1 December 1936, 1. The newspaper correctly predicted in its front-page

headline that Mrs Freer would be admitted and that Paterson would resign.

197

Minutes of Cabinet Meeting of 2 December 1936 (NAA vol 16, part 2).

Dictating to One of ‘Us’: The Migration of Mrs Freer 273

It is true that, even if the Abdication crisis

198

had not then distracted public attention

away from Mrs Freer’s arrival from New Zealand and from the decision of Evatt J

in the High Court, the end of the Parliamentary session would have reduced the

pressure on the Cabinet to admit Mrs Freer. The possibility that the Coalition could

be brought to an end by the Freer Case is nonetheless indicative of the extent to

which it embarrassed UAP members and brought pressure to bear on them to

reverse the decision.

It should be said that relations between the United Australia Party and the Country

Party were tense well before the Coalition was formed and were not improved by a

feeling amongst UAP members that the Country Party had excessive control of

government policy; it cannot be claimed that the Freer affair had soured a

previously harmonious relationship between members of the two parties.

199

The

constant reminders in the press and on the floor of the Parliament of the full range

of the government’s failures fuelled antagonisms between the Coalition partners

which had existed since the days of the first Lyons government. The existence of

these antagonisms was hardly surprising, given the backgrounds of those in the

combined Ministry. Ellis notes that this conservative Ministry consisted of

individuals from what had been three parties, under a Prime Minister with a long

Labor past. He suggests that, thanks to Lyons, at the beginning the Ministry was

reasonably united. However, it was so despite an extraordinary array of enmities

and antipathies, some of many years’ standing.

200

It also needs to be said that, if the

Country Party had withdrawn from the Coalition, the UAP would probably have

formed a minority government until the end of 1937, when an election was due. It

would probably have done so notwithstanding the fact that Lyons’ experience of

minority government in the wake of the September 1934 election had been

unhappy. The key policies of the Coalition would in all likelihood have remained in

place.

The affair is also of significance because it was arguably the most damaging of the

sequence of Ministerial blunders that, by mid-1937, saw the government under

considerable pressure. These blunders included the unlawful associations

proceedings under the Crimes Act against the Friends of the Soviet Union and the

198

Key events in the Freer Case coincided, with an eerie frequency, with the reporting of key

events in the relationship between Edward VIII and Mrs Simpson. The ban in British and

Australian newspapers on reporting about of the relationship was lifted on the occasion of Mrs

Simpson being granted a divorce from Mr Ernest Simpson on 27 October 1936, the day when

news of Mrs Freer’s exclusion from Australia first appeared in Australian newspapers. The

standoff between the Baldwin Cabinet and the King (as a result of the Cabinet’s decision to

resign if Edward proceeded, as King, to marry Mrs Simpson) coincided with Mrs Freer’s

return to Australia in early December 1936. Having dominated the news, Mrs Freer all but

disappeared from it. The announcement of her admission to Australia in early June 1937

coincided with the wedding of Edward and Mrs Simpson.

199

Frank C Green, Servant of the House (1969) 103 and 110-11.

200

Ulrich Ellis, A History of the Australian Country Party (1963) 212.

274 Macquarie Law Journal (2005) Vol 5

Communist Party of Australia,

201

and the banning (without useful effect) of Kisch

and of Irish radical Gerald Griffin.

202

Martin writes, as a prelude to comment on the government’s severe defeats in the

March 1937 constitutional referenda

203

and in the May 1937 Gwydir by-election:

‘the extent of the damage which the Freer case caused the government can scarcely

be exaggerated’.

204

There were sound reasons, not connected to Mrs Freer, for the

by-election and referenda defeats.

205

However, contemporary commentators saw the

government’s conduct towards her as an important ingredient in these failures.

206

The delayed admission of Mrs Freer added to other setbacks or embarrassments

with reverberations in the Parliament when it met for the first 1937 session in mid-

June of that year.

207

Paterson and the government were reminded of the Freer Case

on each day of the June 1937 parliamentary session, even though the overturning of

the ban on Mrs Freer’s entry had by then been publicly announced. The most

sustained of the attacks occurred during savage debate on the Supply Bill during the

overnight sitting of 28-29 June 1937.

208

This debate immediately preceded the

despatch to the Government Printer of the first 1937 draft of an ordinance that,

when made in July, marked the democratic nadir of the Lyons government: the

draconian Unlawful Assemblies Ordinance.

209

The debate illustrates how the Freer

201

In May 1935 the organization Friends of the Soviet Union indicated that it would challenge the

ban on transmission of its publications by an action in the High Court. In a counter to this

initiative, the Acting Attorney-General, Senator Thomas Brennan, invoked the unlawful

associations provisions of the Crimes Act against the FOSC and the Communist Party of

Australia. These organisations were consequently required to show cause why they should not

be declared unlawful associations, and thereby banned. A flood of protest from across the

community followed and eventually Menzies, who was uncomfortable about the reversed onus

of proof, was required to negotiate a withdrawal of the actions. See Frank Cain, The Origins of

Political Surveillance in Australia (1983) 251-2. See also Robert Menzies, CPD vol 153, 71-2.

See further NAA A430 35/779 part 2, passim.

202

A W Martin Robert Menzies: a Life, vol 1 1894–1943 (1993) 133-7.

203

See Blackshield and Williams, above n 1, 1449.

204

Martin, above n 202, 206.

205

Gwydir had changed hands in the past and was lost on this occasion for reasons more to do

with Country Party factionalism that with the electorate’s response to the policies of the

candidates. The referenda losses were able to be explained, in part, but the fact that support for

and opposition to the proposals did not follow party lines. See Joan Rydon, A Federal

Legislature: the Australian Commonwealth Parliament 1901-1980 (1986) 210. See also Ellis,

above n 200, 218-19 and Martin, above n 202, 208.

206

The Round Table vol XXVII, no 107, June 1937, 655-6 and CPD vol 153, 87 (William Scully,

Member for Gwydir). See also, CT 8 March 1937, 2; 17 May 1937, 2; 3 June 1937, 4 and SMH

10 May 1937, 8.

207

These embarrassments included the failure to convene the Parliament earlier in the year (see

CPD vol 153, 25, 61, 90, 524 and 531. There was also the problem of the ambiguous position

of the government on the 40 hour work week (see CPD vol 153, 308-9 (Senator Sir George

Pearce), 511-16 (Maurice Blackburn, Member for Bourke). There were also various other

matters including issues of international trade (eg Annual Register 1937, 133).

208

CPD vol 153, 535, 580, 586-8 (Rowland James, Member for Hunter). Francis Baker, Member

for Griffith, asked why Mrs Freer had been subjected to a dictation test while in 1936 ‘2,000

coloured people were admitted without difficulty’: CPD vol 153, 535.

209

Unlawful Assemblies Ordinance 1937 (Cth).

Dictating to One of ‘Us’: The Migration of Mrs Freer 275

affair had contributed both a general and an immediate sense of the pressured

decision making which instigated this measure. It thus both exemplified and

encouraged bad decision making by Coalition Ministers.

VI C

ONCLUSIONS

But of what longer term significance is the Freer Case?

Of the litigation, it might be said that it confirmed that the Minister responsible for

immigration did not have unconditional exclusion powers. It might also be said to

be an illustration of the point that Justice Evatt ‘stood out against the distortion of

immigration rules’.

210

But such a characterisation ignores the fact that the decision

was one essentially in support of the status quo. The judgment did not prompt any

amendments to the Act, enunciate any new and remarkable legal principles, or

result in any changes to the operation of the dictation test. All that Evatt did, and

perhaps all that he could achieve without abusing the constitutional separation of

powers, was to push the envelope in the then rudimentary area of judicial review of

administrative action. Then, as now, the reviewing judge’s business is to consider

only whether the action taken is authorised by a relevant law and not whether

different action under such authorisation would have been preferable on moral or

other grounds. The main reason for this limit is that, as to preferability, a Minister is

responsible to the Parliament while a judge is answerable to no-one except any

higher court. If Evatt had any immediate political preference, it may have been for

the outcome that – by adhering strictly to his role and upholding the decision as a

matter of law – he left Paterson twisting before the people.

But the case does stand out as an illustration of the tendency of Australian

governments of various political stripes to manipulate immigration laws for ends

unrelated to their original aims. Yet the Coalition Government’s handling of the

situation need not be seen as malicious. The Government was in a difficult

situation. Once Cabinet, with important United Australia Party Ministers absent,

had made the decision to support Paterson, it could not reverse that decision without

ending the Coalition. Paterson, having made the ill-advised decision to ban Mrs

Freer on alleged moral or family-protective grounds, was unable to obtain timely

and reliable advice as to her alleged immorality. Even if such advice had been to

hand, his freedom to use it would have been limited because of prevalent notions of

‘gentlemanly’ public behaviour towards women and because, more importantly, it

would have lifted the lid on immoral behaviour, criminal under the law of India,

within the Imperial Army.

The lasting significance of the Freer Case is that it not only illustrates a past

tendency but also serves as a point of access to discuss questions of belonging,

exclusion and identity that remain relevant to the Australian community today.

210

Buckley, Dale and Reynolds, above n 82, 103.