Treasonous conduct: assessing the wartime activities, post-war trials and tribulations of Australian collaborators in the Second World War.

Treason is considered one of the most outrageous crimes that an individual could commit against his or her country. Many examples exist after the Second World War where individuals were tried and severely punished for the activities they took part in against their country during the war. The Russian Lieutenant-General Andrei Vlasov or the British traitors John Amery and William Joyce (Lord Haw Haw) were all tried after the war for their collaboration with the Nazis and paid for it with their lives. William Joyce, who was actually an American citizen by birth, was tried and executed on the basis of his fraudulently obtained British passport--thereby entitling him to the protection of the English Crown in return for his loyalty--which expired in the early months of 1940. During the Second World War, Australian citizens were considered as British subjects and hence were liable to be treated as British subjects. This was the case up until the Australian Nationality and Citizenship Act of 1948 began the process to establish Australian citizenship. This paper will focus on the role Australians played in treasonous activities in the European theatre of war. These activities mainly occurred around the formation of the British Free Corps (BFC), a Nazi-organised military unit created using Allied prisoners of war. At least four Australians, three soldiers and a member of the merchant marine, joined this organisation. After the war, two of these individuals were tried in England for the lesser charge of "aiding the enemy". There is also evidence that at least one Australian took part in broadcasting on German wartime radio. This case is particularly interesting, as despite the authorities being made aware of the activities of this person, no trial ever took place.

Instances of Australians involved in overseas cases of treason can be traced to Federation. (1) The creation of the Crimes Act (1914) gave the Australian government the power to prosecute individuals for the crimes of treason and treachery. For the former crime, Section 24 stated that an individual shall be guilty of an indictable offence if they "assisted by any means whatever, with intent to assist, an enemy at war with the Commonwealth, whether or not the existence of a state of war has been declared". (2) No cases of treason were proceeded with in Australia involving overseas activities during the First World War. (3) With the commencement of the Second World War, the Australian government adopted the National Security Act (1939). The powers that this legislation gave the government included the right to detain any person including its own citizens indefinitely, without trial, in the interests of national security.

As argued recently by Ilma Martinuzzi O'Brien, the Australian government used these powers forcefully against residents it perceived as threatening. (4) In all, Australia interned approximately 8,100 people who had been residents before the war began, including Germans, Italians, some communists, a number of Jehovah's Witnesses as well as members of the Australia First Party; of these 460 were Australian citizens by birth and the total figure included 209 children. (5) While internment was being used liberally in Australia for those who had questionable nationalities or political affiliations, it was also used for those accused of treasonous activities. One example is the imprisonment and investigation into the Charlesville citizens, Neville Tait, John Usher, Neville Klinger and Hans Rudoph. These men who owned and operated a wireless repair business were accused of sending messages to Tokyo and were subsequently arrested for being in the possession of wireless sets. They were investigated and acquitted of any wrongdoing but only after being held in prison for four and a half months. (6) Certainly, in times of war and in the interests of national security, the authorities were not remiss to exercise their powers. However, once the war was over it was the responsibility of the authorities to prosecute those who had acted against the country during the war.

Australia has a largely positive historical image of the involvement of its men and women in the Second World War. Yet, there were a small number of Australian citizens who chose to carry out acts considered as treachery. As in Britain, the individuals who chose to act against their country have received very little historical attention. (7) Therefore, the historical record of Australians involved in treason in Europe in the Second World War has so far been quite brief. The only work that mentions the role of Australians in Nazi Germany, Adrian Weale's Renegades: Hitler's Englishmen, is primarily concerned with the four Australian members of the BFC. Yet, in his summary of their post-war fate, he claims that "the Australian soldiers who joined the BFC--Stokes, Chipchase and Williams [sic]--do not appear to have been proceeded against". (8) Consequently, there is no acknowledgment of the trials that took place for some of these Australians, nor anything about the propaganda broadcaster. While Weale does make a valid point in his book--that there was a great amount of variation with the punishment that was meted out to Nazi collaborators post-war by the British and her allies--in light of the information contained in this article, his assertion is in need of some reassessment.

In addition, this article also makes a contribution to a further understanding of official attitudes to returned Australian prisoners-of-war who were accused of acts against their country. Christina Twomey in her recent book Australia's Forgotten Prisoners: Civilians Interned by the Japanese in Worm War Two argues that in the cases of alleged treason committed by Australian internees in Japanese captivity--while the Australian Security Services were keen to prosecute these cases--it was the legal officers of the Australian government who were reluctant to take these to court. (9) Ivan Chapman--who wrote about the government's attempt to try Major Charles Cousens for allegedly broadcasting propaganda on Japanese radio--observed that before the Second World War Australia had never previously had to cope with a situation where large groups of its fighting men had been taken prisoner. Subsequently, the army's handling of prisoners of war and their alleged transgressions by the Australian authorities were not always satisfactory. In addition, unlike the horrors associated with the prisoners of the Japanese, for Australian prisoners of war in Germany, there also developed a sense that they had not suffered as greatly. (10) In 1943 there had been public outcry after it was publicly revealed that the Australian army intended to deny service chevrons to servicemen who were currently prisoners-of-war. (11) While the government eventually reversed this decision, as argued by Chapman, this indicates some level of vindictiveness by the army and government in the way they handled their prisoners of war. This Chapman sees as apparent in their attempt to try Major Cousens with treason.

The Cousens case is probably the best known involving an Australian citizen accused of acting against their country, until, of course recent historical events involving "terror supporter" David Hicks. (12) Firstly, it was difficult to try Australian citizens in Australia under Australian law as no Commonwealth legislation covered treasonable acts committed overseas and therefore reveals the inexperience of the authorities to properly deal with such cases. Cousens had been accused of broadcasting propaganda on Japanese radio as well as editing and writing scripts for other announcers. He was eventually sent for trial before the New South Wales Supreme Court under the English Statute, 25 Edward III, dating back to 1351. A magistrate's inquiry commenced in Sydney on 20 August 1946, however, public opinion started to support Cousens especially once it was discovered that the Crown was relying on the evidence of two of his Japanese co-workers. Despite the case being committed to trial, the state's Attorney-General eventually dropped the charges on 6 November 1946. (13) As argued by Chapman (reflecting the vindictive attitude of the army and government) on 22 January 1947 the army still decided to revoke his commission despite the case being dismissed before the court. The significance of the Cousens case was the inability of the authorities to prosecute him as well as Australian society's aversion for the trial. His case was far from clear cut, as there was an obvious suggestion that he had been coerced into broadcasting for the Japanese, while the prosecutions' reliance on Japanese witnesses for their case was extremely unpopular in post-war Australia. For these reasons his prosecution did not generate a great deal of general public sympathy or support amongst former members of the AIF, who showed their support for him by inviting Cousens to lead his old division in the 1947 Anzac Day march.

Contrary to the Cousens case, the instances investigated in this paper indicate that the army and government instead had somewhat more lenient attitudes. Of the three soldiers who joined the BFC, only one was tried before a military court, for which he received a reasonably mild sentence. This also compares favourably to the sentence handed down to the Australian merchant sailor who had also joined the BFC and instead fronted an English civil court. The case involving the Australian who allegedly broadcasted for the German propaganda network shows that no action was taken on the part of the Australian authorities, despite the calls for this to happen. Nevertheless, in an apparent similarity to the Cousens case, there was the enforcement of some kind of unofficial punishment--in the form of denying citizenship--in lieu of a successful prosecution.