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Wednesday, 29 November 1944


Mr SPENDER (Warringah) .-- I support the motion and I shall restrict my remarks mainly to its first two points. Either the Government fails to understand the principle of the motion or it seeks deliberately to mislead the country as to what i$ involved. The first point involves the question of whether a Minister of the Crown made a charge of corruption against justices of the' High Court. I propose to deal with that question first, and I shall not Be led- down the alley-way by the rather shrewd move by the Attorney-General (Dr. Evatt) to describe what took place in the court. I nsk Ministers who will follow me whether, if what was said by the Minister for Information (Mr. Calwell) amounts to a charge of corruption, they defend him. If they do not defend him, what course do they intend to pursue ? That is the whole issue. To draw attention to what took place in the High Court is to evade the point.

I.   do not advance the proposition that justices of the High Court are above criticism, but I observe that the opinions of the Attorney-General and the Acting Prime Minister (Mr. Forde) on that matter differ extraordinarily. The Acting Prime Minister said that the only criticism of the judiciary should be made on a motion under section 72 of the Constitution, whereas the Attorney-General said that judges could be criticized on any occasion. It seems to me that they should never be criticized except on a substantive motion. In any event, no matter what the occasion, when a Minister speaks he does so with a semblance of responsibility, and it is not to the point to say that what the Minister for Information said occurred in a debate on issues of little importance. A Minister should recognize his responsibility as a Minister when he speaks or retire from the Ministry. On the question of whether there was a charge of corruption, the Attorney-General tried to keep to the point, but the Acting Prime Minister never got anywhere near it and only felt comfortable when talking about the coal-miners and the coal-owners, stuff that we have been hearing here for months.

The Attorney-General upon whom rests a very special responsibility as leading law officer of the Crown said, though, not in the same words, something not completely dissimilar to what was said by the Minister for Information. Before I come to what was said by the Minister for Information it is well that I should repeat what was said by the AttorneyGeneral. He said, " Once and for all, let it be made crystal clear, these men are free from any charge of partiality. We have the utmost confidence in and respect for them". Then he proceeded to say, " Why, they made up their minds and gave their decision before the Commonwealth Government had argued the case ". I do not know what use there is in wrapping up meanings iri word*.

When one makes a charge one should make it without equivocation. The right honorable gentleman has said, if words mean anything, that the justices of the High Court had made up their minds before the Commonwealth had had the opportunity to put its case and had stuck to their view and had never given the Commonwealth the opportunity to be heard. I can see no other interpretation of his words. That is a grave reflection upon the Attorney-General himself and upon the Ministry that permits it. The Minister for Information will speak on this motion.


Mr Calwell - I will.


Mr SPENDER - And I shall ask him some questions.


Mr Calwell - The honorable gentleman should have been here last Friday to ask them.


Mr SPENDER - I am not to be led aside. The honorable gentleman must tell the House and country whether he meant that justices of the High Court were corrupt. If he did not mean that, it is surprising, because he is a Minister of the Crown, an educated man who knows the meaning of words, not an uneducated man who could plead that he did not know the meaning of the words he used. So the honorable gentleman must be held responsible for the contents of his sentences. This is a vital matter. No impartial observer could escape the conclusion that there is an infiltration of propaganda in this country designed to destroy confidence in the judiciary. Such confidence is a fundamental in a democratic state. The High Court is the custodian of the democratic liberties thatsome honorable members of this House would like to destroy.


Mr CaLWELL - Rubbish !


Mr SPENDER - The honorable gentleman says " rubbish ", but what were the words he used in replying to the honorable member for Barker (Mr. Archie Cameron) who, at least, made no charge of corruption against the High Court? All he did was to challenge the wisdom of the Chief Justice in suggesting a compromise to the action then pending. But the Minister for Information went much beyond that. He at first said that the law was on the Government's side. I do not see how the honorable gentleman can square that statement with the statement of the Attorney-General that justice was done. The justices are on the High Court bench to administer the law, and it follows from the Attorney-General's speech , that the law was administered. The second statement made by the honorable gentleman was that if another government had been in office, the result would have been different, and the third " Two judges threw away their wigs ".

If that is not a charge of corruption, I do not know what it is. Perhaps the honorable gentleman will tei! the people what he meant by those words if he did not mean to charge their Honours with corruption. Does he realize that that is the only construction that can be placed on the words? It is of great moment that the Government fails to understand that democracy cannot survive once confidence in the judiciary is destroyed. Students of the history of democratic liberties will acknowledge that most of those liberties have arisen from the impartial administration of the law by the judiciary for generation after generation. The judiciary, more than politicians who pay lip service to liberty, is the defender of liberty. Lately in our history we have had right through the country charges of partiality levelled against judges. I do not desire to instance particular cases. They are known to every honorable member. Whenever a decision is given which is not acceptable to the political wing or industrial wing of the Labour party, comments are made that the judges were appointed by another government of a different political colour. How can the Government expect democratic principles to be upheld and democratic institutions to be respected if those very democratic principles and institutions are allowed to be attacked in what should be the citadel of liberty, this Parliament. That state of affairs cannot be tolerated by any one. Unjustifiable charges of corruption against the judiciary ought not to be made by any one, least of all by a Minister of the Crown. Apparently the Acting Prime Minister knows nothing of the principle of collective responsibility of a Ministry. When a Minister rises in his place and makes public utterances in his ministerial capacity, it is clear, without a shadow of doubt, that he speaks on behalf of the

Government. I should like to know and the public would like to know why a Minister who has made a disgraceful charge of corruption against members of the High Court bench is not thrown out of the Ministry. Is it because, as I am inclined to believe, it is not the Ministry but the industrial movement outside that governs the country? If a Minister said in so many words, . " I charge Justice so and so with corruption ", would the Acting Prime Minister or Attorney-General do nothing and just say, " It is a personal opinion which he is entitled to express ", and cite Lord Atkin or some other judge as an authority to justify the right of a man to criticize a judge?


Mr CALWELL (MELBOURNE, VICTORIA) - I expect to be here for a good many years yet.


Mr SPENDER - The honorable gentleman may be, but if he is it will be a reflection on the country. The honorable gentleman's colleagues are doing their best to defend him.' But no impartial person with an understanding of the meaning of words can reach any other conclusion than that he meant to charge' the judiciary with corruption. A selfrespecting ministry could do nothing else but discharge him from the Cabinet. The alternative is for it to accept full responsibility for the charge before the bar of public opinion.

The Attorney-General lightly passed over, and the Acting Prime Minister did not deal with, the second point of the motion of censure. On the firstpoint, the Attorney-General said, " Here is a judge beyond suspicion, an impartial man who discharges his functions with ability. He is a man with a great reputation ". Then, although His Honour himself had said quite clearly that the telegram from the Minister for the Interior (Senator Collings) to the Commonwealth Railways Commissioner, Mr. Gahan, was an interference with the course of justice, the Attorney-General said, " It is quite obvious that it is not ". So the judge whom he previously extolled is made to appear almost stupid and wrong. The Attorney-General said, " Look at the terms of the letter ! " The right honorable gentleman must be particularly innocent if he has reached the conclusion that its purpose was merely to settle the case. If that be so why do we find these words in the letter : -

It would be unfortunate if Mr. Gahan who, I understand, desires his reappointment . . .

Why? Because Mr. Gahan knows that he is subject to the political dispensations of the party in power. The Commissioner knows that it is within the power of the Government to throw him out, or re-appoint him. Therefore the words are used -

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

I should like the Acting Prime Minister to inform me who drafted this letter, or tell us what he meant by those words. To date he has made no attempt to explain their meaning. He left that problem to the Attorney-General. It is a lamentable state of affairs when the Acting Prime Minister drafts a letter in that way; or perhaps he did not draft it, but merely signed it. So many Ministers seem to sign their correspondence without examining the contents. Perhaps the right honorable gentleman will explain to me, if he did not draft the letter, who was trying to put political pressure on Mr. Gahan. The letter concludes -

I suggest that you get in touch with the Attorney-General immediately with a view to reaching a settlement before the question of the Commissioner's re-appointment comes before Cabinet.

Why was there any need for the Minister for the Interior to get in touch with the Attorney-General 'before the matter of Mr. Gahan's re-appointment came before Cabinet? It had nothing to do with the case. The only question to be decided was whether a man had been appointed to the position of Secretary of Commonwealth Railways. The reappointment of Mr. Gahan had nothing to do with the matter. The best case advanced so far on behalf of the Government was that submitted by the Attorney-General, who was called upon to endeavour to explain the meaning of a letter which he did not write. I always believed that when a charge was made against the writer of a letter, he should be the person to explain the meaning of the contents. But in these days, we become accustomed to almost any conduct in this chamber. The person who wrote this letter has not attempted to explain the meaning. Some one else is called upon to attempt to convince the House regarding the intentions of the writer of the letter.

One matter which has not yet been referred to requires mention, because it throws light upon the construction to be placed upon this letter. I refer to a letter dated the 5th February, 1944, from the Railways Commissioner to the Minister for the Interior. These words I shall read are of vital importance because they throw light upon the meaning of the letter of the Minister for the Army to the Minister for the Interior. Mr. Gahan's letter reads -

I am conscious that my refusal to appoint Harding will not in the long run adversely affect him. On the. contrary it will eventually please him. it was made obvious by you to me that it was intended that he shall be secretary, and it was equally made obvious that as the result of this refusal of mine [ shall not be re-appointed after November next.

So we have on record a letter from a man holding the responsible position of Railways Commissioner, who recalled that political intimidation was used against him in connexion with the discharge of his duties. Any one who uses his eyes cannot fail to see that this kind of political intimidation is taking place not only here but also in public departments. Once it is known that a public official can be intimidated by those in office who owe their allegiance to industrial organizations, it will be the end of democratic government in this country. When the Leader of the Opposition sought to ventilate these matters, the Acting Prime Minister hurled all manner of false accusations against him.


Mr Calwell - I shall give the honorable member cause to answer a few things.


Mr SPENDER - If the Minister will do it outside this House, I shall answer him in a couple of ways.


Mr Calwell - I shall do it here, and outside, as it suits me.


Mr SPENDER - -I expected that the Government would attempt to reply to that letter, but it has failed to do so".


Mr Dedman - Mr. Gahan was re-appointed.


Mr SPENDER - That would not mislead blind Freddie. Undoubtedly Mr. Gahan was re-appointed, but for a period of twelve months, and the decision to re-appoint him was made between the time of the hearing of the case and the giving of the judgment. This letter was produced at the hearing, and even the Government, realized that in those circumstances it, would be too "hot" to dismiss him. Therefore, the Government re-appointed Mr. Gahan for the minimum possible period. The Government hopes that by the expiration of that period, the matter will have blown over and it will be able to do as it pleases. Consequently, the re-appointment of Mr. Gahan does not impress me very much. In my opinion, the letter clearly indicates that an attempt was made by the Acting Prime Minister to bring pressure to bear upon an important official and to interfere with the administration of justice, because the only question to be determined was whether the Crown was right or wrong in contending that an official had been improperly appointed as Secretary of Railways. The matter was before the court. Whenever we attempt to voice criticism of the Government in this chamber and the matter can by the wildest stretch of the imagination be considered to be sub judice, privilege is claimed, and discussion is stifled. In this instance, the case was ready for hearing and the subpoenas had been issued. I desire to refer to the words of Mr. Justice Rich who, on the testimony of the Attorney-General is a man of great ability and impartiality. His Honour said -

As a communication from the Minister oi the Army to the defendant Minister, who administers the Commonwealth Railways Act 1017-1925, and on the footing that it wax 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 df the matter rather than to allow the case to go to' trial.

In my opinion that was a very generous possibility to concede, because it is obvious that one Minister does not write to another just for his own personal perusal. The Minister for the Interior had to do something. What he had to do is obvious.

He conveyed to Mr. Gahan the contents of the letter written by the Minister for the Army. His Honour continued -

But when the defendant Minister tranĀ»mitted its contents to the Commissioner of Railways, Mr. Gahan, he necessarily gave it another and a 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 bc considered, if he gave evidence prejudicial to the case the Commonwealth proposed to present.

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 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.

The seriousness of the offence is greatly accentuated when a Minister of the Crown, on whose decision depends the livelihood of this man, is involved. The Attorney-General disregarded the letter written by Mr. Gahan last February, and endeavoured to " whitewash " the Minister for the Interior. Does any one believe that it was an impartial judgment? Very clearly, it is a political judgment. The Government said : " We must get the Minister out of this difficulty, and no action must be taken. We shall give some kind of explanation in the House ". That is precisely what has taken place. This reflects the very low level to which the public life of this country has sunk. If, as the Acting Prime Minister claimed, the Opposition should not raise these matters in the Parliament, there is absolutely no forum where they may be properly ventilated.

I come now to the interference with the discretion of the Maritime Industry Commission, over which Mr. Justice de Baun formerly presided. Here again, we heard a very specious argument advanced by the Attorney-General. The fact is on record that for five months the commission sought from the Government information as to whether war risks had decreased in certain waters. The Government was silent. Receiving no assistance from the Government, the commission gave its decision, reducing the war risk bonus. Immediately the unions were up in arms. We have not been told so, but are we expected to believe that not a word passed between the unions and the Government on this matter? Obviously, pressure was brought to bear on the Government, and it succumbed, as it always succumbs. The Attorney-General said that when the decision was made it was discovered for the first time that there was no diminution of war risk. I am a member of the Advisory War Council, and when that body assembles, the Chiefs of Staff give a review of the war position, and refer to danger zones. All I know is that if this information came into the possession of the Government, it was not made known to. us as a member of the council.


Dr Evatt - The honorable member has no right to say that.


Mr SPENDER - I stated a negative.


Mr Abbott - Why should the honorable member for Warringah not make that statement?


Mr SPENDER - Apparently only Ministers have the privilege of revealing what takes place in the War Council. I stated a negative, without revealing anything, and that immediately raised a howl from the Attorney-General. It is extraordinary that at the very time when the unions were exerting pressure on the Government, new facts about war risks should come to light. Again, that horse will not gallop. Obviously the reason why Mr. Justice de Baun resigned was that pressure had been brought to bear upon the commission. The AttorneyGeneral has contended that the Government is entitled to instruct its representative on the commission how to vote on various matters under consideration. I point out that the unions have four representatives and, with the Government representative, have an absolute majority on the commission of eight members. Again, it was left to the AttorneyGeneral to make a case; but he failed to do so. The Government is deserving of censure. It is time that we devoted attention to principles in government, and not go from one expedient to another. It is about time that the public realized that this Government is not governing the country, hut merely carrying out the behests of the industrial organizations which stand behind it.







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