The conscription referendums of the First World War remain amongst the most divisive events in Australian political history. They sparked a number of libel actions, the most prominent of which was (in effect) between the leaders of the 'pro-' and 'anti-' conscription campaigns in the second referendum in December 1917: WM Hughes and TJ Ryan. The action, which resulted ultimately in an award of contemptuous damages to Ryan, reflected the limits of libel law, particularly in a jury trial, to deal satisfactorily with highly politicised issues such as conscription. Using archival and newspaper sources, this article argues that Ryan's faith in the legal and constitutional issues at the heart of his claim were misplaced given the doctrinal and forensic limits of the defamation action. Moreover, the conflict over the extent of federal power which lay at the heart of the political dispute gave the law of political libel in practice a field of operation with a distinctively Australian context.

It is widely accepted that Sir Owen Dixon was Australia's most significant judge of the first half of the twentieth century. While not challenging the strengths of Dixon's judicial method, it will be argued in this paper that an earlier member of the High Court, Sir Isaac Isaacs, made a more explicit contribution to the development of at least one aspect of private law, the law of tort, during his time on the bench. Although not as explicit as Sir Samuel Griffith in recognising Australia's differences from England, Isaacs contributed innovative and thoughtful contributions to a common law that was seen as belonging as much to Australia as it did to England.

In the trials reported in this series, the accused invoked a range of pleas in an attempt to evade criminal responsibility or mitigate punishment. Some pleas simply represented claims that the prosecution was unable to establish the offence or the involvement of the accused in its commission. These included claims that the accused had been falsely identified or had an alibi; claims that the alleged victim consented to the relevant conduct; and claims that the alleged victim died as a result of an accident or natural causes.

During the period 1901-1945, Australian courts decided a small number of cases that considered the vexed question of the extent to which the Commonwealth could plead that it should be immune from liability in negligence because the proscribed conduct took place as part of the defence of the realm. Drawing on newspaper and archival records, this paper considers in detail both the reasons for the decisions and their wider historical and political context. While Australian courts unsurprisingly adopted the common law framework for negligence actions, the precise questions for decision had no English parallel and in a very real sense these decisions were at the forefront of imperial common law development. Moreover, the decision in the Leviathan 'Shaw Savill & Albion' case also illustrates the interconnectedness of the substantive rules of law with rules of evidence, and the different approach taken by the High Court from that of the House of Lords on this issue demonstrates yet again that Australian judges of this period were much more innovative than has previously been thought.

Like all the participant countries, Australian self-confidence was severely dented by the experience of the First World War. In particular, the conscription referenda of 1916 and 1917 exposed seismic political and sectarian divisions in Australian society and forced a major realignment of political forces at both state and federal level. This paper considers how political and public figures in the debate resorted to the law of defamation to mediate the differences between the parties. Apart from demonstrating the depth of feeling around the issue, these cases required the courts to answer difficult legal questions arising from the disputes and in doing so set the rules for balancing the interests of free speech and reputation in the charged atmosphere of wartime disputes.

There has been very little attempt to historicise Australian private law in as part of wider Australian history. Apart from the important efforts of scholars to consider the impact of the imported common law on Australia’s indigenous populations, the substantive content of that private law has, with some important exceptions, been largely neglected by both legal historians and historians more generally. To the extent that it has been considered the view has been taken that Australian courts and legislatures simply followed the English common law. It was only when Australia broke free from its imperial shackles could genuine contributions to common law development be made. In this seminar, I argue that this is a simplistic view that fails to recognise the intellectual and cultural milieu in which Australian legal practitioners operated. By reading back into legal history a bifurcated view of Australian nationalism we risk missing the genuine innovation made to the common law of tort by generations of Australian lawyers.

Defamation law, particularly from the mid 19th century, has struck a balance between protecting free speech on the hand and protecting reputation on the other. Modern reforms in many jurisdictions have felt that this balance is best kept by judges rather than juries hence the abolition of jury trials in this area. But the extent to which the balance could be monitored with juries depended very much on the willingness of appellate courts to review their verdicts. The fascinating case of Captain Falcke's defamation action against the Melbourne Herald in 1925, a case involving the limits of artistic criticism and a newspaper war, is a reminder both of the importance of the contemporary context in understanding jury verdicts in defamation cases and the lengths to which appellate courts could go to ensure the 'right' verdict was reached.