Law, War, and Peace

Data as at 12 December 2022.

The ALRC DataHub offers opportunities to explore how lawmaking by the Australian Parliament and Government has changed over the past 120 years. The DataHub’s Topics of Interest series of webpages provides case studies in how data can be used to tell original stories about law, law-making, and legal history. The data is a reminder that Australia’s history is, in part, written in and through its laws. A methodology section at the end of this page explains how the page was generated.

The conduct of war has historically been one of the states’ most important activities. Law is one of the instruments the Australian Government has used to wage war, and conflicts and their aftermath have driven legislative activity. This page explores the history of defence-related Commonwealth legislation, while also drawing out how efforts to preserve peace and support current and former combatants have become a large part of the modern statute book. The page also examines the rise of terrorism- and sanctions-related legislation.

Law in times of war

War has provided a significant impetus for legislative action. Figure 1 shows the number of Act and regulation pages that appear in legislation referring to ‘war’ in either their name or description. Beyond ‘war’-related legislation, both the First and Second World Wars gave rise to extensive legislative frameworks for regulating the nation during wartime. This section explores those frameworks.

Law in the First World War

The legislative framework for domestic regulation during the First World War was largely established under the War Precautions Act 1914 (the framework is referred to here as the ‘War Precautions framework’). The Act was to ‘continue in operation during the continuance of the present state of war, and no longer’. The war would end only on the making of a proclamation that ‘war between His Majesty the King and the German Emperor and between His Majesty the King and the Emperor of Austria King of Hungary has ceased.’ Subsequent amendments extended the force of the Act until 1 July 1919.1

Section 4 of the Act conferred sweeping powers on the Government to ‘make regulations for securing the public safety and the defence of the Commonwealth…’. Any breach of the regulations was an offence under s 6. Trials by Courts-Martial could be held in relation to contraventions of the regulations (s 4), including for breaches of regulations designed ‘to prevent the spread of reports likely to cause disaffection or alarm’. In the course of the war, the Act was used to authorise the making of 406 regulations, accounting for 706 pages. This represented 30% of all regulations made during the war and 22% of all pages. The framework was also used after the war to create a further 109 War Precautions regulations before the Act was repealed.

Figure 2 shows the number of Acts and regulations that formed part of the War Precautions framework, as well as appropriations Act and other legislation.

Figure 2: Acts and regulations in the First World War (28 July 1914–11 November 1918)

The War Precautions Act 1914 was amended four times in the course of the war.2 These amendments expanded the regulation-making powers and the scope of Government discretion. Amendments in April 1915 signficantly increased the scope of discretions. For example, the Minister could ‘require that there shall be placed at his disposal the whole or any part of the output of any factory or workshop in which arms, ammunition, or warlike stores or equipment, or any articles required for the production thereof are manufactured’.3 Regulation-making powers were also increased, such as to allow any regulations intended ‘to prevent assistance being given to the enemy or the successful prosecution of the war being endangered’.4 Further amendments in September 1915 similarly allowed regulations to be made conferring powers on the Minister ‘to detain any person in military custody for such time as he thinks fit, if he is satisfied that such detention is desirable for securing the public safety and the defence of the Commonwealth’.5

Regulations made under the War Precautions Act 1914 eventually covered numerous facets of Australia’s economic and social life. A sense of the reach of these regulations is given below:

  • Prices-related regulations: 53 pages
  • ‘Aliens’-related regulations: 28 pages
  • Product-related regulations, such as for coal, dairy, and wool: More than 72 pages
  • Enemy shareholdings regulations: 22 pages
  • Company-related regulations: 10 pages

Figure 3 shows the number of Act and regulation pages that related to the War Precautions framework, as well as appropriation Acts and other legislation.

Figure 3: Act and regulation pages in the First World War (28 July 1914–11 November 1918)

Law also played a role in the ending of the First World War. The Treaty of Peace Act 1919, repealed on 22 September 2012, allowed the making regulations to give effect to Part X (Economic Clauses) of the Treaty of Versailles. The Parliament subsequently enacted the Treaties of Peace (Austria and Bulgaria) Act 1920, giving effect to the Treaties of Saint-Germain-en-Laye (with Austria) and Neuilly-sur-Seine (with Bulgaria), and the Treaty of Peace (Hungary) Act 1921, giving effect to the Treaty of Trianon. Both Acts empowered the Governor-General to ‘make such regulations and do such things as appear to him to be necessary for carrying out and giving effect to the provisions of each treaty’. More than 100 regulations covering over 200 pages were produced under the three Acts. The regulations largely dealt with the property, rights, and interests of German, Austrian, Bulgarian, and Hungarian nationals, as well as the rights to compensation of Allied countries and nationals.

Law in the Second World War

Like the First World War, the Second World War resulted in the creation of a vast legislative edifice to support the conduct of the war. The foundation of this edifice was provided by the National Security Act 1939, which recieved Royal Assent just six days after Australia’s declaration of war on Germany on 3 September 1939. As Figure 4 demonstrates, the Act provided a framework (referred to here as the ‘National Security framework’) that generated large volumes of legislation. The Figure shows the number of Acts and regulations made each month depending on whether it was part of the National Security framework, an appropriation Act, or some other type of legislation. Unsurprisingly, much of the ‘other’ legislation was also defence-related, whether directly or indirectly. For example, dozens of regulations were made under the Defence Act 1903. Similarly, the 17 Loan Acts passed during the war generally required that funds be directed to war-related expenditures, such as acquiring raw materials and manufacturing aircraft.

However, the National Security framework sat at the heart of domestic war efforts. In the course of the war, the framework accounted for 48% of Acts and regulations, containing 30% of all pages. In 1942, the framework generated 64% of all non-appropriation Acts and regulations, with 56% of pages.

Figure 4: Acts and regulations in the Second World War (1 September 1939–2 September 1945)

Perhaps reflecting lessons from the First World War, during which regulation-making powers were steadily expanded, the National Security Act 1939 was enacted with far more sweeping regulation-making powers. For example, the regulations could provide for:

  • the taking of possession or control, on behalf of the Commonwealth, of any property or undertaking (s 5(1)(b)(i));
  • prescribing the conditions (including the times, places and prices) of the disposal or use of any property, goods, articles or things of any kind (s 5(1)(d));
  • requiring any person to disclose any information in his possession as to any prescribed matter (s 5(1)(g)); and
  • authorizing the entry upon or search of any premises (s 5(1)(i)).

Trials could be held in camera (in private) ‘in the interests of the public safety’ (s 8), and any breach of the regulations or orders and instruments made under the regulations was an offence (s 10). Directors and officers of a body corporate found guilty of an offence were also guilty of an offence unless they could prove ‘that the offence was committed without his knowledge, or that he used all due diligence to prevent the commission of the offence’ (s 12).

The regulation-making powers in the National Security Act 1939 were expanded in 1940 and 1943. Given the reach of the existing powers, these amendments were relatively minor. The most significant expansion came in 1940 with the addition of a power for the Governor-General to ‘make such regulations making provision for requiring persons to place themselves, their services and their property at the disposal of the Commonwealth, as appear to him to be necessary or expedient for securing the public safety, the defence of the Commonwealth and the Territories of the Commonwealth, or the efficient prosecution of any war in which His Majesty is or may be engaged’.6

Figure 5 shows the number of pages enacted each month depending on whether it was part of the National Security framework, an appropriation Act, or some other type of legislation.

Figure 5: Pages of Acts and regulations in the Second World War (1 September 1939–2 September 1945)

The National Security framework, like the War Precautions framework in the First World War, came to govern many facets of Australian life. Example areas in relation to which regulations were made include:

  • Prices and rationing: 28 pages
  • Industrial relations, employment, and economic organisation: 160 pages
  • Housing, including relationships between landlords and tenants: 96 pages
  • Product-specific arrangements, such as for coal and meat: 200 pages
  • Internment and prisoners of war: 45 pages
  • Monetary control and financial markets: 29 pages
  • Tea controls: 14 pages

Legislation also played an important role in the end of the Second World War. In total, the Australian Parliament passed six Acts approving various peace treaties between 1947 and 1952,7 the last of which was the Treaty of Peace (Japan) Act 1952. Despite including powers to make regulations, these Acts did not generate any delegated legislation, unlike the many regulations created under the peace Acts of the First World War. The lack of a punitive peace following the Second World War comparable to the First World War’s Versailles Treaty may explain the lack of delegated legislation, much of which related to seizing enemy assets after the First World War.

Winning the peace

The conduct of war has been an important driver of legislative activity. But so too have efforts to deal with the aftermath of war, particularly legislative efforts to support veterans and those affected by war, such as children and widows. Figure 6 shows the annual proportion of Act and regulation pages related to veterans and their families. Even though the Figure shows a decline in the proportion of legislation related to veterans, this largely reflects an increase in overall Commonwealth lawmaking. The absolute number of Act and regulation pages related to veterans was greater in the 2010s (789 pages) than in the 1920s (504 pages). The absolute volume of legislation related to veterans has increased even as its relative volume in Commonwealth lawmaking has declined.

Defence-legislation

Defence-related legislation more generally is an important impetus for Commonwealth lawmaking. Figure 7 shows the proportion of Act and regulation pages classified as defence-related by the ALRC. Both the First and Second World Wars drove defence-related lawmaking to account for above 50% of all Act and regulation pages.

Sanctions legislation

Sanctions on foreign states or non-state actors have become an increasingly important tool of statecraft. In Australia, the impositions of sanctions has a clear legislative foundation, generally in either the Autonomous Sanctions Act 2011 or the Charter of the United Nations Act 1945. Both Acts permit the imposition of sanctions through legislative instruments and provide for penalties if a persons does not comply with a sanctions law. The Charter of the United Nations Act 1945 permits sanctions to implement Security Council decisions made under Chapter VII of the UN Charter and which Article 25 of the Charter requires Australia to carry out.8 The powers in the Autonomous Sanctions Act 2011 can be exercised without a decision of the UN Security Council and may be justified on the basis of country‑specific reasons or thematic reasons.9 For example, thematic sanctions may relate to the proliferation of weapons of mass destruction.

Figure 9 shows the number of pages of sanctions-related legislative instruments made each year. The Figure highlights that an increasing number of sanctions have related to Russia’s aggression towards Ukraine.

Methodology

This page was created by analysing the ‘As made Acts and Legislative Instruments’ data set. The programming language R was used to import the Excel file and then the data was subset by date and legislation type as needed for each Figure. The columns for ‘name’ and ‘description’ were used to identify different types of legislation, such as those related to the War Precautions framework in World War One. Example code is available here.

 

  1. War Precautions Act 1918 cl 2↩︎

  2. War Precautions Act 1915, War Precautions Act 1915, War Precautions Act 1916, and the War Precautions Act 1918↩︎

  3. War Precautions Act 1915 cl 2 ,inserting s 4(3)(a)↩︎

  4. War Precautions Act 1915 cl 2 ,inserting s 4(1)(f)↩︎

  5. War Precautions Act (No. 2) 1915 cl 2↩︎

  6. National Security Act 1940 cl 8↩︎

  7. Treaty of Peace (Bulgaria) Act 1947, Treaty of Peace (Finland) Act 1947, Treaty of Peace (Hungary) Act 1947, Treaty of Peace (Italy) Act 1947, Treaty of Peace (Roumania) Act 1947, and the Treaty of Peace (Japan) Act 1952↩︎

  8. Charter of the United Nations Act 1945 s 6(1)↩︎

  9. Autonomous Sanctions Act 2011 s 3↩︎