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Wednesday, 29 November 1944


Mr SPEAKER - Order ! I cannot preserve order if the right honorable gentleman replies to interjections.


Mr MENZIES - I am sorry, and apologize for having done so. I was craning my ear, because I am so frequently helped in that way that I do not want to miss anything that is good. I put on one side the assumption that this is supposed to be a figurative account, and concentrate on the charge that two justices who are supposed to he impartial in the exercise of their functions openly " barracked for the press ". If this were a mere expression of ignorance, it could afford to he disregarded. If the position were merely that the Minister for Information does not know that, in the courts of this country - and I refer to practically all the courts - in the course of argument, justices put forward, for the purpose of eliciting argument, views which are in no sense their final views; I should overlook it. But this was a deliberately calculated statement, designed to satisfy the rabble of this country that the justices of the highest court in the land are politically opposed to them.


Mr Lazzarini - Whom does the right honorable gentleman meanby "the rabble "?


Mr MENZIES - I mean the rabble. The honorable gentleman knows what I mean. If he does not know that, in every country of this kind, there is a rabble which can be stirred up to hate all authority, then he is very innocent of public affairs. This statement, I repeat, was designed to stir up that mob feeling, and to bring into contempt the authority of the judiciary of Australia.No authority could be possessedby a judiciary which was, in fact, corrupt or biased. Does the Attorney-General (Dr. Evatt) really believe that the High Court is a biased and corrupt tribunal? If he does not, why has he, as the chief law officer of the Crown, preserved silence for days after the making of this dastardly and contemptible attack ? It is quite unnecessary for me to say that the two learned justice referred to have been on the judicial bench of this country for many years.


Mr Bryson - Too many.


Mr MENZIES - They have a record which, at the moment, is superior to that of the gentleman who has interjected; and their record includes an unquestioned reputation for learning, for knowledge of the law, and for complete integrity.


Mr Lazzarini - And politics, one of them particularly.


Mr MENZIES -Did I understand a Minister to interject, " And politics,one of them"?

Mr.Lazzarini - One of them, for a long time, was the leader of the right honorable gentleman's party.


Mr SPEAKER - Order ! The Minister forHome Security must preserve order.


Mr MENZIES - The interjection was disorderly, sir, but it was made. I should be interested to know which of these judges this Government, speaking through another Minister, will name as " political"; because each of the two learned judges in question is a gentleman who has never been in any sense, either directly or indirectly, associated with politics.


Mr lazzarini - I am talking about the High Court itself and the man you people put on the bench.


Mr MENZIES - I do not want to d well on this unsavoury incident. Brit I say thison behalf of decent opinion in this country - that until some responsible loader of this Government publicly repudiates that attack, the people will continue tounderstand thatit is the view of the Curtin Government about the High Court of Australia.

The second item in my motion deals with the attempt, so notoriously and so recently made.to intimidate a public officer in respect of court proceedings in which the Minister for the Interior (Senator Colling's) and the Commonwealth were defendants. The action was, one which involved the consideration of whether or not an appointment to the post of secretary to the Commonwealth Railways had been validly made and the judgment of the court said this -

Upon the death ofMr. Moyes, the then secretary, the Commissioner-- that is Mr. George Gahan - consulted withthe defendant Minister, and obtained from Him a statementthathe approved of the appointment of the plaintiff to the position- the plaintiff being a gentleman called Wa tson -

The Minister, on July 7, 1943, recommended to the Governor-General plaintiff's appointment at a salary of £900a year, and on the same day this was" approved by the Governor-Gcneral. It was not until July 19 that the Minister informed the Commissioner that a returned soldier must be appointed as secretary, and on July 20 he gave the Commissioner a declaration that Mr. Harding was to be appointed. The Commissioner protested, taking up the attitude that under the act the appointment of employees was a matter for him- a point which, as the judgment indicated, was well taken. Then a very curious incident occurred. A letter was sent by the present Acting Prime Minister (Mr. Forde) to the Minister for the Interior. The letter was reproduced in a telegram by the Minister for the Interior to Mr. Gahan, who was at that time a prospective witness and his view, of course, being contrary to that contended for by the Minister, he was likely to be a witness in favour of the interests of the plaintiff. The letter fromthe Acting Prime Minister to the Minister for the Interior was as follows: -

As mentioned in my letter to the AttorneyGeneral whether the procedure taken by your department to give effect to the decision of Cabinet was good or bad in law, it is not fitting for the Commonwealth to be brought before the High Court as a defendant in an action instituted by an employee. Ilearn from the Commonwealth Crown Law authorities that the case is' listed for hearing this month, and that application for certain subpoenas has been taken' out in the name of the plaintiff. It is understood that one will be served onMr. Gahan. It would be unfortunate


Mr Burke - I rise to order. I understand that further legal proceedings may be pending. In the Circumstances I Submit that the matter is sub judice, and that if would be quiteunf air for the right honorable gentleman to proceed with this part ofhis motion.


Mr SPEAKER - I have already considered that matter deeply. So far as I am aware, no legal proceedings are pending. In any case the matter cannot be declaredtobe sub judice until some action is taken, either by an individual or by the Crown. Therefore, inmy opinion, the matter is not sub judice


Mr MENZIES - I resume my reading of the letter sent by one Minister to another. It further said -

It would be unfortunate if Mr. Gahan, who, I understand, desires his re-appointment to be considered by Cabinet were to give evidence not completely in accord with the case presented by the Commonwealth.

The presiding justice, in referring to that letter in his judgment, pointed out, as I myselfpoint out, that as a communication from one Minister to another it was perhaps not impossible to regard the letter as having no further intention than to influence the receiver of it to bring about a settlement of the litigation rather than allow 'the case to go to trial. His Honour said that that is a not impossible view in theory, but of course the one thing that is clear is that the Minister for the Interior did not take that view, because he hastened to pass this letter on to Mr. Gahan. When the latter read in the letter the statement that it would be most unfortunate for him, as he desired reappointment, we can very well imagine that he knew he was being told that the kind of evidence be gave might influence his prospects of being re-appointed.


Mr Lazzarini - Be fair. The letter does not say that it would be unfortunate " for him ".

Mr.Forde. - The right honorable gentleman must admit that that was never suggested in the letter.


Mr SPEAKER - The right honorable gentleman must be allowed to present his case in his own way.


Mr MENZIES - I shall be abundantly fair, and shall read that part of the letter again. It states -

It is not fitting for the Commonwealth to be brought before the High Court as a defendant in an action instituted by an employee. I learn from the Commonwealth Crown Law authorities that the case is listed for hearing this month, and that application for certain subpoenashas been taken out in the name of the plaintiff. It is understood that one will be served on Mr. Gahan. It would be unfortunate if Mr. Gahan, who, I understand, desires his re-appointment to be considered by Cabinet, were to give evidence not completely in accord with the case presented by the Commonwealth. "Who, I understand, desires his reappointment tobe considered by Cabinet"! Let every honorable gentlemen opposite ask himself what on earth that had to do with the kind of evidence Mr. Gahan had to give, if it were not a persuasion to him to give evidence that would suit the people in whose hands his re-appointment lay? What other purpose could there be? No human being in this country could possibly read it and have the slightest doubt that Mr. Gahan was being told: "If you want reappointment, you see that you get on side."


Mr Forde - He was re-appointed before judgment was given, and there was no intention to influence him.


Mr MENZIES - It has been said benignly, and, I hope, inaccurately, that his re-appointment was for twelve months. It was one of those re-appointments designed to salve a tender conscience, but not a re-appointment which will get rid of an incident which constitutes the worst instance of a threat to a witness that I have come across in the whole of my experience. It was held out by a Minister of the Crown to a 'public officer whose sole interest was to do what he thought was best in the interests of the public. It is right to say that the learned justice remarked -

No court can allow to pass without observation an act calculated to affect the testimony of a witness or to embarrass him in giving evidence, although in the result the transmission of the letter did not appear to have influenced Gahan to disregard his duty. As he gave his evidence freely, independently and candidly, it is necessary to say that it is against the law for any person who has any authority or means of influence over a witness to use it for the purpose of affecting his evidence.

I hope that this case is without precedent, but the astonishing thing about it is that for days and days after it has become notorious, no action whatever has been taken in relation to the Minister. I do not believe that in Great Britain, from which we derive our parliamentary institutions, a Minister could hold office for five minutes after the publication of such a threat. Yet here what do we find ? On the 16th November, the honorable member for Barker (Mr. Archie Cameron) received an answer to the following question which he had placed on the notice-paper : -

1.   Will the Minister for the Interior explain the meaning of his telegram to Mr. Gahan, produced recently in evidence before the High Court. . .

2.   Is the sending of this telegram approved by the Government?

The answers given to those questions were -

1.   The Minister for the Interior accepts full responsibility for the whole of the telegram referred to.

2.   See answer to No. 1.

What does the reply mean when it says that the Minister for the Interior accepts full responsibility? Does it imply that ho accepts full responsibility as a private individual, and not as Minister for the Interior, or does it mean that as Minister for the Interior he accepts full responsibility? If he accepts responsibility as Minister for the Interior, the Government of which he is a part, must accept responsibility. Make no error about this : the threat made to Mr. Gahan in relation to this case was made by this Government through its appropriate Minister, who was, in fact, the defendant in the proceedings.


Mr Forde - Absolutely fantastic and untrue!


Mr MENZIES - All the sidestepping in the world will not get rid of that fact. What a ludicrous/ position it would be if some act of this kind were performed by this Minister and then by another, until nineteen of them had done it. We should still be told, I suppose, that it was not the act of the Government, but only that of nineteen individual Ministers, who were utterly distinct from the mystic body, the Government, which alone has the power to declare policy and perform public acts. Of course, that suggestion is perfectly ludicrous. This Government stands condemned through having, through one of its members, used an utterly corrupt, or designed to be corrupting, threat to a prospective witness, for which there is no apology, no withdrawal and no explanation.

Then I turn to the third paragraph of my motion, which relates to the attempt, in fact more than an attempt, to put the coal tribunals beyond the corrective jurisdiction, on questions of law, of the High Court. Honorable members will recall that, when the Coal Production (War-time) Bill 1944 was before this House, an assurance was given by the Attorney-General (Dr. Evatt) that the wage-pegging law contained in the economic regulations would apply to the coal-miners as much as to anybody else. This House, then in committee, accepted that assurance. Notwithstanding that position, Mr. Connell, the chairman of one of the tribunals, gave certain decisions later increasing the pay of the miners, and the result was that proceedings were taken in the High Court. The court first decided that those regulations did apply to the coal-miners, thus supporting the undertaking given to this House, and in the second place it decided against the validity of the orders made by Mr. Connell. What then happened? Did the Government say, in effect, " We are delighted to find that our view of the legal position has been upheld, and that what we told this House about coal control is now authoritatively declared to be the law"? Not at all. It made another regulation, which is found in StatutoryRule No. 157of 1944. It refers to the coal tribunals, and says that the awards and decisions made by them prior to the commencement of this regulation are to stand, as if they were valid laws.


Dr Evatt - What is the date of that?


Mr MENZIES - The 1st November, 1944.


Mr Anthony - Which Minister gave the information to the House?


Mr MENZIES - The AttorneyGeneral. I raised the matter in committee, and the right honorable gentleman's view was upheld in the High Court, although unfortunately, contrary to the submission of counsel for the Commonwealth. Immediately the High Court upheld that view, saying that these interferences with wage-pegging were invalid, the Government replied, " That will never do. We shall overcome, as far as we can, the effect of the decision ".So it gave validity to decisions made in the teeth of its own law, and in the teeth of its own assurances given to this House.

The fourth paragraph relates to -

.   . interference by the Government with the discretion reposed in the Maritime Industries Commission presided over by a judge.

I am referring now to the events which led up to the recent resignation of Mr. Justice de Baun from the chairmanship of the Maritime Industry Commission.

At the time he was appointed, it was said that it was very desirable that the commission should possess a judicial quality in its chairman, so that it might give to the public an assuranceof firm, impartial treatment. Mr.Justice de Baun was appointed because of his judicial training, experience and office. On the 3rd May of this year, the commission was considering whether war risks in certain waters near Australia had been reduced. It was considering whether a bonus paid to seamen, and designed to be accommodated to the quality of the risk, should be reduced. On the 3rd May the commission asked its Minister to advise whether there were grounds for any belief that the risk in Australian waters was the same as in June, 1942. That was a fair question. What the commission said, in effect, was, " We have our own ideas, no doubt, but the Government, in the last resort, is in the bestposition to assess what the risk may be, because it has all the naval and military intelligence on the matter ". The commission could get no reply to its question, and although it renewed its application several times, it received no reply, good, bad, or indifferent. Then the commission decided to reduce the bonus rate, because it found that the risks had, in fact, diminished, particularly in certain Australian waters, and it made an amending order which was to come into operation on the 15th September. As the result of discussion with certain Ministers, the date was altered to the 1st November, on which date the order was to become operative.. The Government then interfered, and: directed the commission toreview its decision.


Mr Spender - What did the Government mean by " review " - reach another decision?


Mr MENZIES - I suppose so. " Review " is an elastic term, but what it. meant was this : " Look here, this order which you have made, and which is to operate from the 1st November, must be reconsidered ". If you tell' somebody to reconsider a decision it is not so that he may immediately confirm it. The Government directed that the decision be reviewed, and, in the result, we know exactly what that, meant, because it was reviewed, and it does not operate yet.


Dr Evatt - It has been postponed until the 31st January.


Mr MENZIES - I accept the word " postponed ". The result of the review has been the postponement of the operation of the commission's decision. We are not here concerned with the merits or demeritsof the case itself, but we are concerned with this point: Why wasa judge appointed as chairmanof this tribunal? Was it merely so that he might give a sort of judicial dignity to decisions' made by other people, or was it so that he might exercise his Own judgment, thus" giving the public an assurance that there would be independent judgment? There is no doubt of what the judge himself believed, because, in resigning, he said -

Recent events have made my retentionof the position of chairman" impossible, and quite inconsistent withmy duty as a judge' acting as chairman of the Maritime IndustriesCommission, appointed as I was to represent the public interest.

But, of course, the whole trouble was that the decision of the judge wasnot well received by the political ruler's of the country, and so the decisionmust be reconsidered, even if it meant forcing the chairman off the commission. What did that matterto the Government ? Undermining the authority ofthe court is no new thing for thisGovernment. Setting aside the law,or allowing it to be treated with contempt, is nonew thingfor this Government. And so the judge went, and no doubt some other chairman will take his place. If he desires a long life the new chairman will do wellto study the wishes of the Ministry, because a condition of long life for him will be aclose adherenceto the political views of his masters.


Mr Anthony - It will be unfortunate if he has views of his own.


Mr MENZIES - I have no doubt that every care will be taken to avoid so dangerous a contingency.

Paragraph 5 of the motion refers to the Government's - feeble failure to enforcethelaw against war-time strikers.

This matter has been referred to many times. Nothing thathas occurred this year gives any indication' that the Government will enforce any industrial law, or exercise any industrial authority. Month after month we have witnessed the steadily growing industrial anarchy in Australia, and the steadily increasing total of industrial disputes. There have been threats by the Government, but not so many of late. There have 'been promises by the Government, not whole-hearted promises but hints after this fashion: "Now, look; we know that you want a pensions scheme, gentlemen of the coal-miners union. We know that you want a Commonwealth pensions scheme which will put you in a position of great advantage as compared with any other industrial workers in Australia. We are not exactly promising that we will give you such a scheme, but, ah ! if you would onlyhelp us for the next month, and get the people's minds off the coal problem, we might be able to do something for you ". In that sense, promises have been made, but even the promises have been feeble. It might have been better if the Government had said, a long time ago. We know we cannot exercise authority. We will not pretend that wo can. Therefore, we are cutting out all this fine talk about ruthless enforcement of the law ". The Government could then have said to the coal-miners and other militant unionists, "What is your price, and we will pay". If the Government had done that, at least it would have been honest. It would, at least, have had a policy, however bad; but the Government has never had a policy. It has shuffled uneasily from one foot to the other. There has been a touch of ruthlessness, followed by more than a touch of weakness. Its whole attitude has been provocative, and I have no doubt that in every trade union throughout Australia, the very suggestion of discipline by the Government is treated with shouts of derision. The unionists know very well that what really amounts to treason to the country pays. The loyal, patriotic trade unionist, who goes on with his job, accepting wage restrictions, paying his taxes, and giving thought to the men who fight for the country, receives no industrial reward; but let the trade unionist be a man of dubious allegiance to his country, let him be a man who has, in many instances, done his best to sabotage the war effort by his utter disregard of the law of the land, and by his carelessness of the safety of the country, and everything will be added unto him. He. will get what he wants. He will even get headlines in the newspapers. He will have conferences with the Government, and be provided with transport to attend them. He will even be allowed, in suitable circumstances, to address a few Ministers by their christian names, and in the long run the wagepegging regulations will be eased a little in his favour. It is a sorry day for any country when it comes to be known that subversive activity is worth cash in hand. Yet that is the industrial policy of this Government.

The true foundation of democracy, so much discussed in this place and in this country, is to be found in the positive authority of a body of law, the nature of which is controlled by the people themselves through their own Parliament. When the rule of law goes, democracy goes. Of course, there are some people who think that, in order to be democratic, one ought to be moved solely by what I call rabble considerations.Such people arc not friends of democracy. There are others, and we have some conspicuous examples in this Government, to whom parliamentary and ministerial power presents a glorious opportunity for using authority, not to produce a common observation of the law, but to produce its sectional enforcement. For them, power is something tobe used for its own political sake. They are enemies of democracy. It is for those reasons that the motion concludes by directing the attention of the House and of the country to the fact that, because of the charges so abundantly proved against it - . . the Government is undermining the authority of the courts and of the law, and is thereby injuring the basic structure of Australian democracy.







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