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Wednesday, 29 November 1944


Dr EVATT - I could hardly imagine a more important issue, especially having regard to many prior rulings in past cases by leading justices of the High Court, including Mr. Justice Isaacs and Mr. Justice Starke.

At the very outset of the case, counsel for the Commonwealth asked for an adjournment for one week. The application of the plaintiff was for an interim injunction, which in substance meant that, if it were granted, the offending matter could be published there and then. Counsel for the plaintiff newspaper opposed that and said that the 'Commonwealth was obviously entitled to some adjournment, such as the court thought proper, and suggested an adjournment until 10.30 o'clock on the Tuesday morning. However, when the matter was discussed in a- way shown by the transcript, after an adjournment until 4 o'clock on the Monday, the court, by a majority of three to two, issued an injunction which in effect permitted the newspapers to publish the material which had been ordered to be excluded by the Censor. The Chief Justice, Sir John Latham, and Mr. Justice McTiernan, who dissented, desired to have the matter postponed till the Tuesday, obviously in order that the case for the Censor and the Commonwealth could be more fully presented. It is -no reflection on the impartiality or integrity of the majority of the members of the court that they decided to do as they did. At the same time, it is only right for me, as Attorney-General, to say that the Solicitor-General and all legal advisers of the Commonwealth considered that the case should not have been decided so shortly and so summarily, because, in fact, the decision on the Monday determined the real issue between the parties which was whether the newspapers could, in spite of the censor's order, publish what he had prohibited, as he said, rightly or wrongly, in the interests of the successful prosecution of the war. They did publish it, and, if any harm to the war effort was likely to result then, that harm followed immediately upon the court's order. During the course of the argument there was much interruption from the Bench of the argument of counsel, and no doubt the Chief Justice had a very difficult task in conducting the proceedings through to finality.

I have already referred the House to the general right of criticism of the administration of justice. There is another 'principle. It is necessary that a case should he conducted in an atmosphere of calm and deliberation. Only a few weeks ago, when a federal judge in the United States of America had made an order, after expressing his indignation in what was called " robust extra-judicial language", a Court of Appeal quashed his order and remitted the matter for trial before another judge " in an atmosphere of judicial calm ". I refer to the case of Moskun v. U.S.A. This is a striking illustration and application of the well-established principle of British practice laid down by Lord Hewart in 1924 in Rex v. Sussex Justices, reported in 1 K.B., at p. 259 -

A long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly bc seen to be done. . . . The answer to that question depends not on what actually was done but upon what might appear to he done.

I have said on behalf of the Government that we do not question the fairness or impartiality of the judge.


Mr Menzies - But the Minister did.


Dr EVATT - The right honorable gentleman will hear the Minister later. The Leader of the Opposition has given us his own interpretation of what was said. I ask him to hear what is said before he presumes to condemn. In ray opinion, the only possible complaint that could be made by the defendant litigants was the speed and hurry of the hearing, having regard to the vital importance of the case. I know that that criticism may be answered by emphasizing that the matter was an urgent one. On the other hand, publication of a matter deleted by the censor could have been postponed for several days without any irreparable injury to the plaintiff, whereas the publication in fact meant that the real issue in the case was decided so far as the injunction was concerned. Repeating the words of Lord Hewart, Lord Chief Justice of England, all litigants, including the Commonwealth, are entitled to expect from every court in the land not only an impartial administration of justice ; that, all of us are getting. They- are entitled to something more - that is, to have the business of the courts so conducted that litigants will be satisfied not only that justice is done, but that it is manifestly and undoubtedly seen to he done.

I say no more about this part of the case against the Government. I repeat the Government's confidence in the essential impartiality of the Bench, but I am sure that I reflect the views of nearly every member of the bar practising before the High Court of Australia when I say that in all cases, particularly those in which intense public feeling is aroused, it is absolutely essential that the fullest opportunity should be given to have the case presented.

Honorable members will, I am sure, read the full transcript of the proceedings of the court on the Mond.ay in order to determine for themselves whether my comment is justified. I believe it is justified. At any rate, it would be most unfair if, this matter having been raised in this particular way, I failed to express it. In this instance, precedents existed and might have been followed. For instance, Mr. Justice Starke said during the last war in the case in which Mr. Ryan, the Premier of Queensland, was plaintiff, that you cannot censor the censor and you must accept his opinion as to whether a publication is likely to injure the war effort, which is binding on the court. Above all, in matters of this kind, it is vital that hurry, or the appearance of hurry, should be avoided. When honorable members read for themselves the transcript of proceedings before the court they will, I hope, agree that my comment is justified.


Mr McEwen - It is not relevant to the matter before us.


Dr EVATT - It is relevant. The Minister for Information made a statement, I presume upon reading the matter in the press of the day. It was fully reported, and he had before him very much what has now been put more fully before the House.


Mr Menzies - 'What comment does the Minister say was justified?


Dr EVATT - My comment. The right honorable gentleman anticipated this argument by saying that the judges do, in fact, interrupt frequently. The only question is whether, in this case, they intervened too often or too early. I pay a tribute to the presiding judge, who had a very difficult task to perform at a moment of intense public feeling.

The second part of the complaint refers to another Minister of the Crown, Senator Collings, and relates to the case Watson v. Collings. The passage in the letter from the Acting Prime Minister to the Minister for the Interior, to which exception was taken, is 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.

If one does what the Leader of the Opposition did, that is, divorce that passage from its context, it looks like a serious attempt to interfere with the course of justice, but what are the facts? An attempt was made, during the proceedings before Mr. Justice Rich in the High Court, to construe the words as containing a threat to the Commonwealth Railways Commissioner. Those who know Senator Collings, who know the way in which, in season and out of season, he has defended the administration of the Commonwealth Railways Commissioner, will know how absurd is the allegation that he was seeking to threaten the Commissioner. Apart from that, it is most unfair to tear the words from their context. If the whole letter is read, it is obvious that the sole purpose of the Acting Prime Minister was to avoid a public dispute between the Commonwealth and one of its employees. The aim of the Acting Prime Minister was to suggest a settlement of the case out of court. The word " unfortunate " was clearly intended to indicate that a public declaration of a difference of opinion between the Commissioner and the Government was to be avoided. The statement about the renewal of the Commissioner's appointment was included to show that the relationship of employer and employee between the Commonwealth and Mr. Gahan was likely to be continued for some time.


Mr Spender - That is fantastic!


Dr EVATT - Is every possible inference to be drawn against the Minister? Are not honorable members able to view the matter fairly? In a letter from the Minister for the Army to the Minister for the Interior the words complained of should not be construed to contain a threat against Mr. Gahan. Before such a suggestion could be entertained strong evidence must be adduced. It must be remembered that the Railways Commissioner was also a defendant in the action. He was a party to the litigation, and he was interested in any proposal for a settlement. Even if doubt were raised - and doubts can always be raised - as to the motive which prompted the writing of the letter, I suggest that those attacked should be given the benefit of the doubt. The better, and not the worse, construction should be placed upon the matter.

Icome now to the court proceedings.

When the telegram was read, counsel submitted that it was not relevant to the case, and Mr. Justice Rich at first rejected it as' evidence. Then Mr. Adams, counsel for the plaintiff, submitted that if ever a threat was made, it had been made in the passage referred to. That, of course, is the view put forward by the Leader of the Opposition. Counsel for the Commonwealth, Mr. Sholl, said that the passage meant this: "We understand that you have been subpoenaed. If you do not take the same view as the Commonwealth, we shall, unfortunately, be expressing different views in court. Therefore, we suggest a settlement." That, I submit, is a reasonable construction to place upon the passage referred to, and on the action of the Minister in forwarding the telegram to Mr. Gahan. However, after submissions were made, Mr. Justice Rich admitted the telegram, subject to objection. Hedid not even admit it as relevant to the case, and it was not further referred to in the whole course of the proceedings. The court took no action on its own account for contempt of court, but referred the matter to the law officers of the Crown. The law officers have examined the circumstances, and expressed the opinion - in which I agree with them - that the matter is not one in which proceedings should be taken against the

Minister for the Interior. In the first place, Senator Collings was not a witness in the case. The passage complained of might have had more relevance if he had been. Secondly, those who know Senator Collings know that it is unthinkable that he would make any attempt to interfere with the course of justice by putting pressure on Mr. Gahan, whose administration he has defended so strenuously over the years. The raising of this issue is a further example of the dredging for little bits of evidence to justify the censure motion against the Government.

The Leader of the Opposition also charged the Government with having interfered with the jurisdiction of the High Court in following upon a decision of the court in a coal tribunal matter. It is true that the court, on the 1st November, invalidated a decision given by one of the local reference boards established some years ago. The Government accepted that decision, and in the regulations which were subsequently framed an exception was made of that particular case, and the law was applied in accordance with the rule laid down by the court. That, however, does not stop the Government which, in time of war, has authority over labour and industrial matters, from doing what it thinks it ought to do to preserve industrial peace. On the 26th October, the following letter was written to the secretary of the Australian Coal and Shale Employees Federation in Newcastle -

In view of the recent High Court decision in respect of increases made in rates of remuneration to be paid to employees in the coal-mining industry, and the decision of the High Court in respect of economic organization regulations, I wish to notify you that we reserve unto ourselves the right at any subsequent date to consider what action, if any, we may take in respect of decisions made by the Northern and Central Reference Board, local and central industrial authorities, or any other authority under the present regulations acting in the coal-mining industry, where increases have been granted to employees in the industry, which may be at variance with the High Court decision referred to above.

Honorable members can. therefore, see how dangerous a position threatened. One decision was given by the High Court, and was honoured by the Government. Then Mr. Forster, acting on behalf of a section of the owners, advised the miners federation that, although he did not propose to challenge other awards immediately, he might do so at any time. The effect of this announcement was to cast a cloud upon the validity of dozens of industrial awards governing conditions of employment in a vital industry, some of them given a very long time ago. To have let the matter re"st there would have been to invite industrial unrest. Therefore, the Government thought it better to preserve the decision of the court in the particular case in which it was given, but to take steps to preserve the validity of other decisions which had already been given. That did not constitute 'an interference with the decision of the High Court. It represented a decision by the Government to preserve decisions of the industrial boards which had never been challenged.

I come now to the fourth point of the Leader of the Opposition, in which he indulged in alliteration and referred to the Government's " feeble failure " to enforce the law.


Mr Menzies - That was an understatement.


Dr EVATT - I suppose that it would be in order for me to compare the enforcement of the law by previous administrations with its enforcement by the present Government. That would necessitate some reference to past industrial disputes. In the enforcement of the law regarding absenteeism and other industrial offences, the present Government has steered a course between extreme repression on the one hand and extreme complacency on the other. In whatever it did, the Government had one object in view, namely, increased production in order to ensure the maximum war effort. I suppose that in concentrating on the war effort the Government has made some mistakes; it might have prosecuted more persons; but, on the other hand, it might have acted more wisely had it prosecuted fewer persons. The Acting Solicitor-General informs me that the Government has proceeded against workers in no less than 4,000 instances. That has been done under the law relating to man-power absenteeism. It may interest honorable members to know that under the law relating .to absenteeism the Government has not proceeded against a single employer of labour in this country. Why? How could the law be enforced against such a man? How could the Government obtain evidence on which to convict him ? No one can cheek the coming or going of an employer or manager. This law is one which operates against the workers; it is a one-way law. I do not say that the fact that prosecutions have been launched against 4,000 employees in industry, whilst not one prosecution has been launched against an employer, is likely to please the people whom I represent, nor do I think that anything would satisfy the Leader of the Opposition. But is the Government to do things which it thinks will satisfy the right honorable gentleman? No. I call attention to the fact that before the Japanese attack on Pearl Harbour there was no law of absenteeism in this country; it was then largely a matter of "go as you please " and " business as usual ". That was the state of affairs under previous administrations after the war had been in progress for over two years. There was no law against absenteeism until the Curtin Government brought it in. It is impossible to get a 100 per cent, enforcement of such a law. Things being as they are, I know that whenever an industrial dispute occurs a section of the critics will cry, " Enforce the law against the workers ". The Government has enforced the law. For instance, the Prime Minister gave an undertaking in regard to the coal-mining industry. In August of this year, he announced that proceedings would be taken for breaches of the regulations, and the result has been that some hundreds of persons have been convicted. I make no boast of that. Those prosecutions -were launched because the Government had in mind, above all else, the production of the maximum quantity of coal. The policy announced by the Prime Minister has been followed : in every case which has arisen since he mentioned this matter in Parliament last August, action has been taken in accordance with the recommendation of the Coal Commissioner, to whom the administration of the act has been committed. In such cases as the Commissioner directs, an investigation is made by officials of the investigation branch of my department, and a report is furnished to the Coal Commissioner, who decides on the course of action to be taken. In no case has his recommendation been departed from. Efforts have been made to avoid blanket prosecutions. In pursuance of that policy, prosecutions have been launched in almost all cases in which persons could be identified as being mainly responsible for causing disputes. The Coal Commissioner has had complete freedom of action in this direction, and he will retain that freedom of action. The Government will not depart from that attitude. I ask honorable members to - imagine the position confronting the Government; on the one hand, it has had the miners complaining against the multiplicity of prosecutions, and asking that they should be withdrawn; and, on the other hand, it has had, the Leader of the Opposition and those who support him saying that there have not been sufficient prosecutions. The Government has acted in accordance with what it believes to be sound common sense. I realize that there are some, even among the supporters of the Government, such as the honorable member for Herbert (Mr. Martens), who do not believe in prosecutions, and I hope that the time will come - and the sooner the better - when collective action by employees at a mine will be followed by the application of the pre-war practice, that is, action against their organization through the Industrial Court, and not by means of proceedings in the police court. However, that time has not yet arrived. I ask honorable members to be realistic, and to recognize that the Government, in taking action against the miners has had a most difficult task to perform. But has it had any assistance in that task from the Opposition, or its leader? No. On the contrary, the Government has been blackguarded.

The next point raised by the right honorable gentleman related, to the resignation of Mr. Justice De Baun from the Maritime Industry Commission. Mr. Justice De Baun is a judge of the Industrial Court of New South Wales. He accepted the position of Chairman of the Maritime Industry Commission, and

I believe that, on the whole, he did an excellent job for the Commonwealth during a difficult period. I pay that tribute to him. He held strong views on the subject of war risks. The tribunal consisted of Mr. Justice De Baun as chairman, four representatives of trade unions, three representatives of the shipowners, and one government representative. As -the Leader of the Opposition has said, the commission decided to reduce the war-risk bonus, and to bring that reduction into operation on the date mentioned by the Acting Prime Minister (Mr. Forde). At the time that the decision was made, the facts before the Government warranted the conclusion that that was a just thing to do. Subsequently, however, further facts came to light. The War Cabinet considered them, and concluded, that the best thing to do was to postpone the operation of the order for three months. It had in mind the valuable services rendered by the mercantile marine during a period of great danger, when the risk of attack by enemy submarine was ever present. Perhaps the members of the War Cabinet were wrong; but they thought that it was right to postpone the operation of the order until the 31st January, 1945. They acted on the advice of Sir Thomas Gordon, but, as I have said, they may have been wrong. Let us suppose that they were wrong. Even so, was not War Cabinet entitled to ask the representative of the Government on the commission to support the Government's view? Believing that it had that duty, the War Cabinet instructed the representative of the Commonwealth Government on the commission, within the terms of its constitution, to support the postponement of the operation of the order for three months. The Leader of the Opposition calls that interference with the work of the commission. The matter did not come before the chairman of the commission for his decisive or casting vote, but he thought that the operation of the order should not be postponed. I repeat that he accepted a position on the commission as one of eight members. Mr. Justice De Baun, as a member of the commission, was acting as an administrative officer, and not as a strictly judicial officer. He has paid a tribute to the administration of the Minister for Supply and Shipping (Mr. Beasley) in a time of great crisis. Was it not reasonable that when the risk from enemy attack lessened there should be some tapering off of thebonus? Was it wrong to grant some little concession to these men who had run great risks? Perhaps what was done ought not to have been done; but, even supposing that the Government's decision was wrong, was it not entitled to make that decision, particularly in view of the fact that these man had rendered to their countryser- vices equal to those performed by many men in the fighting forces?

On the 17th November the Loader of the Opposition launched an attack against the Government on the ground that it had interfered with the chairman of the Stevedoring Industry Commission, Chief Judge Piper. During the present debate, the Leader of the Opposition made omissions. I shall show why he did so.


Mr Menzies - That is not a relevant matter.


Dr EVATT - That may be; but as the Leader of the Australian Country party (Mr. Fadden) has mentioned the matter, it is relevant now. The Leader of the Opposition said that Chief Judge Piper had generously explained his resignation as chairman of the Stevedoring Industry Commission as being due to pressure of arbitration work. He went on to say -

It was quite clear that what had happened made it impossible for a self-respecting chairman to continue to preside over a commission which was being regarded by Ministers as a rubber stamp to record politico] decisions.

Chief Judge Piper contradicted that statement publicly in the press, but the right honorable gentleman omitted to tell the House that he had done so. There was no interference whatever with He judge. TheHouse should know that in the constitution of the Stevedoring Industry Commission there is power for the Director of Shipping, or the Minister for Supply and Shipping, to direct what shall be done. That power was exercised. The facts are that certain men working in gang 100 on the Sydney waterfront were suspended. That meant their exclusion from the industry.As the result of the Government's direction, the Deputy Chairman of the Commission resigned.


Mr Holt - He resigned because of certain directions given by the Government.


Dr EVATT -- He was subject to direction. Can the Government he blamed for exercising a power that is vested in it? Among the fourteen men who were suspended were ten returned soldiers, some of whom had fought in the war of 1914-18, and the others in the present war. Taking all factors into consideration, the Minister for Supply and Shipping directed that those men be restored to the gang. How can that be said, to be an interference with the court?

I have dealt with the matter of the High Court proceedings.


Mr Menzies - The right honorable gentleman has not done so. He ran away from it.


Dr EVATT -I realize the impossibility of satisfying the right honorable gentleman. It would be strange indeed if he were to say that he was satisfied with my answer. I cannot expect that. However, if the right honorable gentleman will read the transcript of the evidence in Hansard he will, I believe, in the fulness of time come to the same conclusion as I have done. He may even say so publicly. The right honorable gentleman shows no. appreciation of what the Government has done during the crisis of war. He never says a word in praise of the war effort of the Government, yet he knows the difficulty of conducting the war organization of this country.


Mr Menzies - Does the right honorable gentleman really expect me to do so?


Dr EVATT - He never makes a positive suggestion. Because of his great skill in the law, and his administrative experience, he knows the difficulties of enforcing war-time regulations. [Extension of time granted.] The right honorable gentleman does not recognize the difficulties confronting the Government. I have mentioned prosecutions. I do not mention them as something to boast about, but as something for regret. I hope that the time will soon come when we shall get back to the old method of enforcing industrial awards. While the decision of the Prime Minister remains, it will he carried out faithfully by me. I deprecate the violence of the language of the Leader of the Opposition. He referred to the "subversive activities". Does he apply that to the coal-miners?


Mr Menzies - To the coal-miners who strike, of course I do.


Dr EVATT - He really does not mean that. No one has been more appreciative than the Leader of the Opposition of what employees in the industry of coal-mining have done for this country.


Mr Anthony - " Kid-glove " stuff !


Dr EVATT - The honorable member for Richmond has done nothing to help; all he does is criticize. Let him do something to help. The Leader of the Opposition referred to the " rabble ". I do not. think he really meant that, although he repeated the word several times. Does he mean that the citizens on whom we are dependent for the prosecution of the war are rabble?


Mr Menzies - I. met a few in East Sydney during the last election campaign.


Dr EVATT - East Sydney ! No case has been shown on any one of the points for censure of the Government. We have endeavoured to keep the ship of state on a steady course. Our object has been the successful prosecution of the war. All allegations have been answered. Instead of positive help in the prosecution of the war, all we have had from the right honorable gentleman has been an epic in exaggeration and distortion. I am confident that the House will reject his motion.







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