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Wednesday, 29 November 1944


Mr FADDEN (Darling Downs) (Leader of the Australian Country party) . - Had the Acting Prime Minister (Mr. Forde) occupied as much time, used as many words and devoted his undoubted enthusiasm to replying to the charges made against the Government instead of indulging in a personal attack on the Leader of the Opposition (Mr. Menzies), the nation and tins House would have been all the better for it. I take strong exception to the tactics of the Acting Prime Minister in using this motion to make a personal attack of a degrading nature on a member of this chamber.

It behoves me to redirect the attention of the House to the motion itself. Obviously, the Acting Prime Minister does not realize the gravity of the charges and has not a proper assessment of the destructive nature of the attacks upon the judiciary of this country; otherwise, he would be aware of the degree to which our national integrity has been dissipated. The Government always appears to be satisfied to answer serious charges against its administration by tediously repeating the assertion that it saved Australia from invasion. Those charges were made by a responsible Opposition that conscientiously believes that it is serving the best interests of the nation. The extent to which the Labour party contributed to the defence preparedness of Australia may be debated on a more appropriate occasion, when we shall dispose of the Government's claims, and show that its pre-war policy was not in the national interests. The Acting Prime Minister failed entirely to answer, even by way of an. excuse, the charge against the Minister for the Interior (Senator Collings). He also overlooked the principle of Cabinet responsibility. As the Leader of the Opposition so aptly stated, the Government cannot accept the principle of Cabinet responsibility at one time, and on another occasion declare that any statements made by a Minister were made in his private or personal capacity. The Leader of the Opposition emphasized that when a Minister makes a statement, charge or criticism in Parliament, he does so as the spokesman of the Government, and the Government as a whole must bear the responsibility for it. As the Minister for the Interior has accepted full responsibility for his action, obviously the Government as a whole is responsible for it. It is not a personal matter between the judiciary and the Honora'ble Joseph Silver Collings. It is a matter between the High Court, arising from a statement by Mr. Justice Rich, and the Honorable Joseph Silver Collings as Minister of State for the Interior, acting for and on behalf of the Curtin Government. As the Acting Prime Minister has not attempted to answer the charges contained in the motion, I can only conclude that he does not realize the importance of them. Because they are factual, they should not require repetition; but in view of the attitude of the Acting Prime Minister, it will be necessary for me to refer to the events in order that some spokesman on behalf of the Government may give a satisfactory explanation of this unsavory and extraordinary occurrence.

Mr. JusticeBich presided in the case concerning the appointment of Mr. Watson as secretary of the Commonwealth railways and the. attempt to appoint Mr. Harding to the same position. His Honour granted Mr. Watson a declaration that he had been properly appointed to the position, in spite of a later cancellation of the Executive's approval of. his appointment. Despite all the Acting Prime Minister's platitudes and appeals to sentiment regarding Mr. Harding's military service to Australia, it should be remembered that Mr. Watson was duly appointed to the position with Executive approval. That approval was ultimately cancelled, and an endeavour was made to appoint Mr. Harding to the position. All the crocodile tears shed on Mr. Harding's behalf are of no avail when the facts are known. Mr. Justice Rich, in giving judgment, criticized the Minister for the Interior for having sent a telegram to the Commonwealth Railways Commissioner, Mr. Gahan, at the time when Mr. Gahan was likely to bc called as a witness in the case. His Honour said -

No court onn allow to pass without observation an act calculated to affect the testimony of a witness or to embarrass him in giving evidence.

Outlining the facts surrounding the appointment of Mr. Watson, and its cancellation, His Honour said that on the 15th October last, when the present action was on the point of being heard, Senator Collings sent a telegram to Mr. Gahan at Alice Springs, giving the text of a letter which the senator had received from the Minister for the Army (Mr. Forde). This letter 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. I learn from the Commonwealth Crown Law authorities that the case is listed for hearing this mouth and that application for certain subpoenas has been taken out in the name of the plaintiff. Tt is understood that one will be served on Mr. Gahan. It would be unfortunate if Mr. Gahan, who I understand, desires his reappointment to be considered by Cabinet, were to give evidence not completely in accord with the case presented by the Commonwealth. All this shows the desirability of a settlement of this litigation before it reaches the Court, and I believe that if there is a right approach from both sides it can lie settled. It is my desire as Minister for the Army and the desire of the permanent hoad that Mr. Harding's services, which have been of great value to the Army, should continue with this department for the duration of the war. Therefore the question of his return to the Commonwealth railways during Mr. Gahan's term of office does not arise. As it will be necessary to act quickly I suggest you get in touch with the Attorney-General immediately with a view to reaching a settlement before the question cif the Commissioner's reappointment comes before Cabinet.

The observation which I read earlier was made, not by members of the Opposition, but by a Justice of the Hight Court of Australia. The Acting Prime Minister accused the Leader of the Opposition of being malicious, petty and spiteful in raising this matter. If he holds that view of the right honorable gentleman, he must, to be consistent, hold the same view of Mr. Justice Rich.


Mr Hughes - Mr. Justice Rich was appointed to the High Court by a Labour Government, too !


Mr FADDEN - That is interesting. Evidently he is not one of the political appointees to which some honorable gentlemen opposite have referred. His Honour proceeded -

As a communication from the Minister for thu Army to the defendant Minister who administers the Commonwealth Railways Act, 1 1)17-1 925, and on the footing that it was intended for the perusal of the latter only, it is. perhaps, not impossible to regard it as having no further intention than to influence him to effect a settlement of the matter rather than to allow the case to go to trial.

But when the defendant Minister transmitted its contents to the Commissioner of Railways (Mr. Gahan) he necessarily gave it another, and very different effect.

To Mr. Gahan it could only mean that it would be unfortunate for himself, seeing that his reappointment as Railways Commissioner was about to be considered, if lie gave evidence prejudicial to the case the Commonwealth proposed to present.

No court can allow to pass without observation an act calculated to effect the testimony of a. witness or to embarrass him in giving evidence.

Although, in the result, the transmission of the letter does not appear to have influenced Mr. Gahan to disregard his duty as a witness, 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. And it is competent for this court, in cases where other remedies appear inadequate or unavailing, to proceed on its own motion by calling on the party concerned to show cause why he should not be dealt with for contempt of court.

The Acting Prime Minister lightly brushed aside these comments by Mr. Justice Rich and endeavoured to introduce sentiment into the debate. Also, at great length, and with considerable enthusiasm the fight honorable gentleman made a personal attack upon the Leader of the Opposition for having had the audacity to repeat in this House the opinions voiced by Mr. Justice Rich. His Honour said that primarily the responsibility for taking proceedings for the protection of the administration of justice rested upon the law officers of the Crown. From His Honour's strictures, and from his action in leaving to Commonwealth Crown Law officers the responsibility to take proceedings for contempt of court, the House will appreciate the gravity of the position in which the Minister for the Interior has placed himself. It is difficult to believe that any man with even a rudimentary knowledge of law, much less a Minister of the Crown, would send a telegram such as that which the Minister for the Interior sent to Mr. Gahan. The text of the telegram was as follows: -

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.

Obviously, the Minister's intention in sending that telegram was to influence Mr. Gahan in giving evidence. However, it is to Mr. Gahan's credit that be was not influenced in any way by that communication, and for his attitude he was commended by Mr. Justice Rich. The whole matter is so unsavoury that it is due to this House and to the country that the correspondence between the Minister for the Army (Mr. Forde), the Attorney-General (Dr. Evatt), the Minister for the Interior (Senator Collings) and Mr. Gahan should be tabled in Parliament for examination by honorable members. I should like to know what action the Crown Law authorities intend to take in view of the remarks made by Mr. Justice Rich.

The next matter to which I shall refer is the practice that has grown up since this Government assumed office of Ministers of the Crown launching violent attacks upon the judiciary, which after all is the foundation of our democratic system. Nothing could be more calculated to undermine the established judicial system or to encourage Australian workers to treat with contempt our judges and the tribunals set up to administer justice, than these attacks. In fact, they provide irresponsibles in industry with reasons why justice should be overthrown in favour of the law of the jungle.

The most recent intemperate attack was made by the Minister for Information (Mr. Calwell), whose writings in the press of this country have inflamed the minds of patriotic and responsible citizens, sufficiently to convince them that he is not a fit person to remain in a democratic government. Speaking, not in a private capacity, but as a responsible Minister and a spokesman" for the Government, he made such a violent attack upon the judiciary that it was headlined in the press throughout Australia. The item was featured in the Sydney Daily Telegraph and carried the heading in bold black type "'Calwell attacks High Court Judges ". In the Melbourne Sun Pictorial the heading was " Mr. 'Calwell attacks judges on press decision ", and in the Melbourne Argus " Minister criticises High Court Judges ". Such publicity given to an outburst by a Minister must have an effect upon the national integrity of this country; but once again the incident was accepted with irresponsibility and apathy by the Government. It has been left to the Opposition to bring the matter before this House, and therefore, before the country in an endeavour to draw from the Government some indication that it has a sense of responsibility and due regard for the position of the judiciary. This is what the Minister said -

I believe that the law was undeniably on the side of the Government in the action taken and that, if it had been taken by another Government, the High Court's judgment would have been considerably different. At any rate, a rather disgraceful spectacle was presented to the people of Australia by the conduct of two justices in that case when the matter was mentioned to them on the Monday morning. Mr. Justice Starke and Mr. Justice Rich threw away their wigs when they took their seats on the High Court Bench and openly barracked for the press. It is a matter of very great regret that the matter was not viewed with judicial calm. Mr. Justice Starke said, "Why can't I read what I want to read in my morning newspaper?" He .presumed to usurp the function of the Chief Publicity Censor. The issue he had to decide was whether the Chief Publicity Censor had acted within the law. His Honour set himself up in judgment of the actions of the Chief Publicity Censor in exercise of his discretionary powers, and the ease was prejudiced right from the start.

That attack was delivered by a Minister of the 'Crown upon the High Court, a foundational structure charged with the interpretation of the laws of this country, and an indispensable part of democratic administration and constitutional authority. It is time that Ministers of the Crown realized their responsibilities, their relative importance, and the scope of their authority. It is time also that some government representative confirmed or denied on behalf of the Government the statements that have been made by irresponsible members of the Ministry. Apparently the Government wants to have it (both ways. It owns statements of Ministers which suit its book, but disowns others which it regards as unsuitable. The time has come for the people of this country to recognize that a statement made by a member of the Government is a statement for and on behalf of the Government. Ministers derive their executive powers from Chapter II. of the Constitution just as the judiciary derives its judicial powers from Chapter III. In relation to the three great functions of democratic government, the 'Constitution provides first that the legislative power shall be vested in a federal parliament, consisting of the Sovereign, a Senate and a House of Representatives; secondly, that the executive power shall be vested in the Sovereign and exercised by the Governor-General and the Executive Council, comprising Ministers of State; and thirdly that the judicial power shall be vested in a federal Supreme Court, namely, the High Court of Australia, and certain other courts. Consequently, the executive authority of Ministers of the Crown is no higher than the judicial authority of the High Court. Each has its defined functions to perforin under the Constitution, and each is exclusive of the other. A Minister who attacks the judiciary is exceeding his authority in exactly the same way as a judge would be exceeding his authority, if he attempted to interfere in the exclusive functions of the Executive. This violent attack upon members of the High Court bench cannot be ignored by Parliament. It is far too serious to be passed over with the excuse that it is merely the view of a Minister. The Government should either own or disown the statement made by the Minister for Information. So far it has been left to the Opposition, to bring the matter before Parliament in order that the people of Australia may know where we stand in relation to this unsavoury behaviour, the only effect of which can be to undermine the course of justice and national responsibility.

The Minister for Transport (Mr. Ward) - whose association with the Minister for Information in matters such as this reminds one of the old-time comedy team " Mutt and Jeff " - achieved notoriety for attacks of this type when, he was Minister for Labour and National Service. For instance, at a Trade Union Congress in Melbourne, some time ago, he said that some judges of the Arbitration Court ou occasions seemed deliberately to create difficulties, and that he wa3 not satisfied that many men in judicial positions were assisting the Government in industrial matters to the degree that they might. In April, 1942, Judge Drake-Brockman, chairman of the Central Coal Reference Board, said that he would walk out of his position rather than have the then Minister for Labour and National Service set up a court of appeal over him. Having heard the representatives of the mine-owners and the miners, His Honour said -

I would prefer not to discuss Mr. Ward or' his action. I do not want to criticize him or the Government. This board will not tolerate any interference with its authority.

Last year, the honorable gentleman, when still Minister for Labour and National Service, clashed with members of the judiciary in such a way that he was deserving of the most severe censure but apparently the Prime Minister (Mr.

Curtin) was blind to his Minister's indiscretions, because the matter was treated by the Government with the same indifference as has been exhibited towards other equally grave occurrences. In April, 1943, the Minister criticized Judge Piper, Chief Judge of the Arbitration Court, for a comment made by His Honour on decisions of the Women's Employment Board. On that occasion the Minister was reported as having said -

It is Judge Piper's job to administer the law and not to criticize it. He is a servant of the Government, like any one else in a similar capacity, and it is not his- prerogative to make political statements against the Government which employs him.

In May of the same year, Judge O'Mara. addressing counsel in the full Arbitration Court, said of the then Minister for Labour and National Service - >

I do not know whether your client, the Minister for Labour was correctly reported or not, but he expressed some very quaint views on the position of the judiciary under the Constitution.

When His Honour's statement was brought to the Minister's notice the latte said that he would call for the transcript of His Honour's remarks, and would make a considered statement later. However, so far as I know, there has been no considered statement or explanation in connexion with that outburst.

In May, 1943, the Minister clashed with the President of the State Arbitration Court of Western Australia, Mr. Dwyer. The case in question arose out of a day baking dispute in Western Australia, and, according to the press, Mr. Dwyer said -

One paragraph in a letter to the Court from the office of the Minister for labour, Mr. Ward, might be construed as contempt of court.

Announcing the decision of the court, the President said in relation to the letter written by the Minister that perhaps one could not be too exacting in these days, when industrial systems had become the plaything of politicians; nevertheless, he wondered as to what stage in legal history the court had arrived. Although the Arbitration Act required the court to act according to good conscience, and the equity and substantial merits of the case, the Minister had instructed it, in effect, as to what decision he wished it to give. Subsequenty, Mr. Dwyer said -

The real point at issuewas, whethera Minister of the Crown was justified in issuing instructions or directions to a court with a view to having his wishes carried into effect.

He went on to say -

I have merely to say it would mean farewell to our boasted freedom and impartial administration of justice if bodies vested with judicial powers exercised such, subject to the wishesor desires or orders of ministerial authorities rather than to the dictates of pure justice and reason.

The Minister for Transport has made no secret of his vindictiveness towards members of the judiciary,.

Mr.Calwell. - That is rubbish, and the right honorable gentleman knows it.

Mr.FADDEN- His attacks have been without parallel in the history of responsible government, and he has now been joined in them by his colleague, the Minister for Information, who is the other half of the " Bing Boys " combination. On the 22nd June, 1943, the honorable gentleman said -

One of the great drawbacks to-day is that the Commonwealth Parliament is not the supreme constitutional authority in Australia. . . . Why, I ask, should the High Court be above the Commonwealth Parliament? The day is approaching when the people of this country should determine that this Parliament should be the supreme constitutional authority and that any other powers should be delegated by the Commonwealth authority.

We now have the Minister for Information expressing similar sentiments, and making attacks on the High Court, which is the guardian of the whole of our constitutional authority.

I shall not deal with the other matters that have been raised. In connexion with the Stevedoring Commission, the Government adopted an extraordinary attitude.


Dr Evatt - What is the complaint about the Stevedoring Commission? That is a new matter.


Mr FADDEN - The chairman of the commission, Chief Judge Piper, and the deputy chairman, Mr. Nicholl, resigned from the Commission. Chief Judge Piper stated that the reason for his resignation was that his work as a judge kept him fully occupied. It is safe to assume that he considered that, in the existing circumstances, he could no longer retain the chairmanship of the commission as well as his self-respect. Mr. Nicholl stated frankly that a decision of the commission, designed to maintain lav; and order, had been rendered ineffective as the result of action taken upon the threat of a strike, thus depriving the commission, as constituted, of respect for its authority.

The Acting Prime Minister waxed eloquent in regard to industrial conditions in Australia, and compared the existing position with the unrest during the regime of the Menzies and Fadden administrations. Such a comparison is odious and ridiculous because, since December, 1941, this country has been engaged in a disastrous war, and we have had to strain our resources in every direction to the utmost of our capacity. The position in the coal-mining industry, and the industrial position generally, must be viewed in the light of that fact. The point that should be considered is, whether or not industrialists generally, and the coal-miners in particular, have been and are doing everything possible to meet the demands made upon Australia by the circumstances in which it has found itself. The latest available details in connexion with industrial lawlessness and anarchy in this country are interesting. They show that, during the twenty months up to the 31st August last, there were 1,432 industrial disputes, which involved588,951 workers and resulted in a loss of 1,461,671 man working days. Those figures illustrate in no uncertain way the industrial drift that has occurred. The loss of 1,461,671 man working days has contributed greatly to the impossibility of making effective use of the man-power resources of this country, and of utilizing adequately our industrial capacity. Indubitably, it has been a contributing factor in the failure of the dairying industry and of other great food-producing industries to obtain the labour they have needed. It is an indisputable barometer of themalutilization of the available man-power by a nation at war, (fighting to retain its place among the democratic nations of the world, and having international as well as national responsibilities; moreover, a nation that will , be judged in the peace yearsby the manner in which it has discharged its 'responsibilities during the period of the war.

The situation at the Homebush abattoirs is a striking condemnation of the administration of the Commonwealth Government, and the strongest indictment of the lawlessness with which it has been either powerless to deal or too spineless to tackle. At Homebush to the 30th June this year, there hadbeen ten strikes of one day or two days, and 68 stop-work meetings affecting production. The number of sheep killed was 300,000 below the award tally. During the year ended the 31st March, 1943, no fewer than 75 stoppages in the metal trades were reported to the court. In the next twelve months, 81 were reported ; and between the 1st April and the 26th October of this year, a further 44 had occurred. {Extension of time granted].


Mr Calwell - Tell us about the secret funds inquiry.


Mr FADDEN - I have carried all the odium in connexionwith that matter. If the honorable gentleman will make a charge against me outside this Parliament, I shall take adequate action against him.


Mr Calwell - I shall make it here.


Mr SPEAKER - Order ! Honorable gentleman are not in order inbandying words across the chamber.


Mr FADDEN - I am quite capable of looking after myself.


Mr SPEAKER - Order ! The Chair will attend to that matter.


Mr FADDEN - I thank you, sir; your assistance is appreciated. I was dealing with the effect of the existing industrial position on the great food industries of this country. I have shown that the Government has been apathetic and spineless in its handling of the menace of lawlessness and anarchy. The nation can ill afford the loss of 1,461,671 man working days. In the meat slaughtering industry, the production has declined steadily since 1941, and strikes, stop-work meetings, and absenteeism have increased alarmingly during that period.

A 44-hour week is provided for all sections by the award. The average weekly working hours during the half year ended the 30th June last were: sheep section, 311/4; pig section, 321/4. The shortest weeks were respectively 161/2 and 251/2 hours. Is it to be wondered at that meat has been rationed, and that there is the prospect of further rationing; ithat we cannot meet our own requirements, much less discharge our commitments overseas and to the Allied forces? Between January and June of this year, the total number of sheep and lambs left alive in the pens at the end of the day was 293,117, representing 17.6 percent. of the number actually killed during that period. There were ten strikes at Homebush, most of them in the sheep slaughtering section; in which, in addition, there were 66 stopwork meetings, and on 117 of the 124 working daysthe men failed to complete their tally of 80 sheep a man, or the actual number yarded on the 25 days when fewer than 80 sheep a man were available. Although, during the first six months of 1944, nearly 300 men were capable of working as sheep slaughtermen, only on sixteen days was it possible to complete three full teams of 76 men each, a total of 228. Is it necessary for me to produce further evidence to show that industrial conditions in this country have got out of hand, and to prove indisputably the spinelessness and ineffectiveness of theGovernment's administration? A contributing factor has been the encouragement given by the Government to those who would break down the very foundation of our democracy, by criticizing and attacking, maliciously and in other ways, the wholebasis of law and order, which enables us to maintain national integrity and discharge national responsibility, namely the judiciary. It is time the Government grappled with the position. It is all very well to say that there are only a few irresponsibles and Communists. The suggestion that I would make to the Attorney-General is that a searching investigation should be made as to the effect of communism in this country, and that proper action should be taken to stamp it out as expeditiously as possible. Sitting suspended from 12.43 to 2.15 p.m.







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