tales ofthe overtand the covert: judges … · independence, impartiality, policy and politics ......

TALES OF THE OVERT AND THE COVERT: JUDGESAND POLITICS IN EARLY COLD WAR AUSTRALIA

LAURENCE W MAHER·

INDEPENDENCE, IMPARTIALITY, POLICY AND POLITICS

This article examines historical aspects of the convention that Australianjudges are precluded from engaging in political activities. That convention isan element of the strict separation of judicial functions and the independenceof the judiciary.! Apart from the deliberative component which may be carriedout in private and the very limited role for closed hearings, the judicial processis essentially acted out in public. However, upon appointment to the bench, ajudge is expected to limit involvement in other forms of public life and toconduct his or her private life so as to avoid, as far as is reasonably practicable,involvement in activities which might (or might be seen to) compromise thejudge's or a court's independent status or the impartial disposition of specificcases or issues. The less involved a judge is in non-judicial activities the lesslikely it is that the judge will be confronted with determination of a case or anissue in which he or she has some interest.

The terms "politics" and "political" have meaning beyond their applicationto partisan organisational activity. They are used here in their widest sense todescribe events, conduct or attitudes which, in one way or another, areconcerned with promoting or resisting action affecting the distribution ofpower in society. Rightly or wrongly, both terms can also carry strongpejorative connotations. As a term of abuse or disparagement, thecharacterisation of an individual's actions or motives as "political" frequently

* LLB (Melb), LLM (ANU). Barrister and Solicitor of the Supreme Courts ofVictoria and the ACT. Senior Lecturer in Law, University of Melbourne. JohnGoldring, Christine Maher, Michael Sexton and George Winterton providedvaluable comments on earlier drafts of this article. The author alone isresponsible for the views expressed in the article and for any errors which it maycontain.Traditionally, the independence of the judiciary has been secured by a dualprotective scheme. First, judges have security of tenure. They cannot be removedfrom office save for proved misbehaviour. Secondly, their remuneration may notbe diminished during such time as they hold office. See, eg, Constitution s 72(iii).Recently) Australian judges have argued that further protections are required. Seegenerally L J King, "Minimum Standards of Judicial Independence" (1984) 58ALJ 340~ G Green, "The Rationale and Some Aspects of Judicial Independence"(1985) 59 ALJ 135; A F Mason, "Judicial Independence and\the Separation ofPowers - Some Problems Old and New" (1990) 24 UBe L Rev 345 republishedin (1990) 13 UNSWLJ 173; M D Kirby, "Judicial Independence in AustraliaReaches a Moment of Truth" (1990) 13 UNSWLJ 187; R E McGarvie, "TheFunctions of Judicial Independence in a Modem Democracy" (1991) 1 J ofJudAdmin 3; Australian Bar Council, Statement on the Independence of theJudiciary, Victorian Bar News, No 77, Spring 1991, 18.

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indicates that the speaker regards the actor as crafty, unprincipled or motivatedby nothing other than a determination to obtain or retain a position of power.In the best traditions of Australian cynicism, "politics" and things "political"have little, if any, connection with objectivity, fairness or justice. Either way,for a judge to be accused of involvement in "political" activity must be a sourceof concern. Such conduct is generally regarded as antithetical to the judicialrole. Judges are required to stand apart from controversies so as to be free toresolve disputes impartially and to ensure the appearance of impartiality.Judges are, of course, especially required to stand fearlessly between the citizenand the state.

In this article attention is directed to that particularly turbulent period inrecent Australian history, 1945-1955, and the varying political activities of fiveprominent judges, two from the High Court of Australia and three fromStaterrerritory Supreme Courts. In the cases examined here the judges pursueda variety of political roles - outright polemics (Brennan), the publicannouncement of anti-Communist concerns chiefly attributable to the judge'srecent involvement in the security service (Simpson), behind-the-scenes adviceto diplomats, politicians and bureaucrats (Dixon and Herring), the articulationin a judgment of a specific ideological position (anti-Communism) which thejudge had actively pursued as a politician (Latham), and the pursuit of a multifaceted politico-military career simultaneously with the holding of judicialoffice (Herring).

The high societal value attached to impartial application of legal rules inthe resolution of disputes is sometimes linked with concepts of strict legalismaccording to which the judicial process is said to be value-free and legal rulesare supposedly immune to ideological contamination.2 For the adherents ofstrict legalism, the law needs to be preserved from the grubby world of politicswith all its intrigue, arbitrariness and expedience. According to Shklar, there isa view "that law is not only separate from political life but that it is a mode ofsocial action superior to mere politics".3 In the past such an attitude has beenused to mask the ideological biases of the legal system, to blur the distinctionbetween acceptable judicial policy-making and unacceptable politicking, and todistract attention from the behaviour ofjudges. The ways in which judges canattract criticism or censure for improper "political" activities can range acrossa spectrum of "policy activism" to corruption.

It is now widely acknowledged that judges regularly apply social oreconomic policy preferences in the discharge of their duties and that far frombeing neutral ciphers, judges make law. They are less likely to be criticised forthis than was the case 30 to 40 years ago. Since Australian judges are, for themost part, chosen from a very small group of lawyers, their decision-makinghas traditionally reflected the values and policy choices of the rich and

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See generally J N Shklar, Legalism: Law, Morals, and Political Trials (1986);W Friedmann, "Legal Philosophy and Judicial Lawmaking" (1961) 61 Col L Rev821. The foremost modem Australian exposition of the positivist view is SirOwen Dixon's "Concerning Judicial Method" (1956) 29 ALl 468. This addressechoed remarks he had made on the occasion of his elevation to the office ofChief Justice: see (1952) 85 CLR xiv and 0 Dixon, Jesting Pilot (1965).JN Shklar, supra n 2, 8.

1993] Tales ofthe Overt and the Covert 153

powerful in Australian society.4 There is an important sense in which the useof policy preferences exhibited in judicial decision-making involves "political"action, given the wide definition advanced earlier. This use of policypreferences by judges can, but will not necesarily, pose issues about theimpartial adjudication of cases or the independence of the judiciary or themixing of partisan "political" and judicial functions. It is argued later thatChief Justice Latham's dissent in the Communist Party Dissolution Act case isan example of judicial policy preferences infected with partisan politicalsentiment.

The other end of the spectrum of judicial conduct is much moretroublesome. When questions about the independence or integrity of thejudiciary arise in Australia the focus of discussion and debate is likely to be anallegation of actual or attempted corrupt conduct by government or privateinterests or a member of the judiciary that jeopardises the ability of a judge orcourt to dispense impartial justice. Australia witnessed several causes celebresof this kind in the 1980s. In one case, Mr Justice Murphy of the High Court ofAustralia was twice tried on charges of attempting to pervert the course ofjustice and unsuccessful attempts were made to remove him from office.S Inanother case New South Wales District Court Judge John Foord was tried andacquitted on charges of attempting to pervert the course of justice.6 In yetanother case, Mr Justice Vasta of the Supreme Court of Queensland wasimpeached.7

Occasionally, questions concerning the independence or integrity of thejudiciary in Australia have arisen not because judges or courts are put injeopardy by external pressures, but rather because individual judges have beenprepared' to become involved in public controversies or to wield power orinfluence in their private activities. It is this last category of "politicking"

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M Sexton & L W Maher, The Legal Mystique: The Role ofLawyers in AustralianSociety (1982) Chs 1 & 4; J G Griffith, The Politics ofthe Judiciary (1977).For details of the allegations levelled at Murphy J, see Senate Select Committeeon the Conduct of a Judge, Report to the Senate, ParI Paper No 168 (1984);Senate Select Committee on Allegations Concerning a Judge, Report of theSenate, ParI Paper No 271 (1984); Parliamentary Commission of Inquiry, SpecialReport and Special Report Dealing with the Meaning of ''Misbehaviour'' for thePurposes ofSection 72 of the Constitution, ParI Paper No 443 (1986). For anaccoWlt of the appeals arising out of the first trial see R v Murphy (1985) 158CLR 596; R v Murphy (1985) 4 NSWLR 42. Justice Murphy was acquitted on theremaining charge at his second trial.For some of the background to Judge Foord's case see John Faiifax & Sons Ltd vFoord (1988) 12 NSWLR 706.QId ParI Deb, 1989, Vol 310, 5146-5158 (30 May 1989) (Motion for Removal),5215-5260 (7 June 1989) (Leave to Appear at Bar ofHouse and Address by VastaJ), 5261-5343 (Address to the Governor), 5408-5409 (8 June 1989) (Removal).For a range of recent discussion on the broad issue of judicial propriety see M DKirby, The Judges (1983); J B Thomas, Judicial Ethics in 4ustralia (1988);M McLelland, "Disciplining Australian Judges" (1990) 64 ALl 388; J B Thomas,"The Ethics of Magistrates" (1991) 65 ALl 387. See also R Cranston,"Disqualification of Judges for Interest, Association or Opinion" [1979] PublicLaw 237 and R Thomson, The Judges (1987), which contains interestingobservations by fonner and serving judges (some of whom identify themselves)on the role of the judiciary in AUstralia.

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activities affecting the independence of the judiciary that is the primary focusof this article.

THE BASIC PRINCIPLE

It is easy enough to assert that judges must not participate in politicalactivities. The basic principle stated in such general terms commands universalacceptance. But what does it mean in practice, given the various uses of theterms "politics" and "political"? In the United Kingdom it has been said that:

The public status ofjudges ... is partly founded upon roles of law, but to a largeextent also upon an Wltidy mass of non-legal roles, customary practices andpolitica~ eTctations, which may be conveniently identified as constitutionalconvention.

Much the same can be said of the position of Australian judges. Thesummary which follows is an attempt, for the purpose of providing a setting forthe later narrative and assessment, to extract from the constitutionalconvention the specific types of conduct which are off limits and those whichare regarded as compatible with judicial independence and impartiality.9 Ajudge who disregards any of the specific aspects of the basic principle risksremoval for misbehaviour or some lesser form of censure depending on thetype and extent of the transgression. 10

(1) Judges are not free to express party political or other controversialopinions publicly, or to be influenced by them, or otherwise to be politicallysensitive to concerns of the government, the electorate, specific interest groupsor individuals, in deciding cases.

(2) Similarly, whereas judges, upon appointment to the bench, are notexpected to terminate friendships merely because they have friends (includingpoliticians) in high places they are expected to keep a respectable distancefrom government and to refrain from political lobbying or acting as politicaladvisers to government or opposition or the allies of either.

(3) In addition, judges are expected to adhere to a self-denying ordinancewhich prevents them from discussing their cases publicly or respondingpublicly to criticism of their work as judges. 11

(4) The clearest application of the basic principle that judges must refrainfrom taking sides in partisan or controversial issues is the unwritten rule that a

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A W Bradley, "Judges and the Media - The Kilmuir Rules" [1986] Public lAw383, 383-384.See generally S Shetreet, Judges on Trial (1976); J B Thomas, Judicial Ethics inAustralia (1988).In New South Wales recent legislation has enlarged the powers available todiscipline judges. See Judicial Officers Act 1986.It is, however, customary for the leaders of the legal profession to speak publiclyin defence ofa judge subjected to attack. There is also the potential which judgeshave for responding by invoking the scandalising category of the law of contemptof court. See eg Gallagher 11 Durack (1983) 152 CLR 238; H Bunnester,"Scandalizing the Judges" (1985) 15 MUIR 313. See also D Dawson, "Judgesand the Media" (1987) 10 UNSWU 17. Justice Dawson notes that in theTasmanian Dams case (Commonwealth 11 Tasmania (1983) 158 CLR 1) the HighCourt took the Wlusua1 step of issuing a prepared statement explaining insummary fonn the Court's decision in that complex caSe. Ibid 24.

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judge must, upon appointment to the bench, resign membership in a politicalparty or other political organisation. 12

What then is permissible? It is generally accepted within the judiciary andthe legal profession that if judges abide by the basic principle, there is stillscope for them, if they so wish, to engage in public life away from judicialduties and to enjoy a non-monastic private life. Even so, judges need to becautious in their public or private involvements so as to avoid, wittingly orunwittingly, participating in or allowing themselves to be drawn into politicalor other controversial activities which could undermine public confidence inthe judiciary.

(1) Australianjudges are free to take an interest in politics, to hold politicalopinions and to express them privately. They are free to vote in elections.Members of the legal profession and others who maintain personal contactwith judges can readily testify to the fact that judges do hold political viewsand are not constrained in expressing them privately. The conventionalwisdom is that "a privately held view does not disqualify a judge fromexercising his function" .13 This is a sensible approach, but, as is argued laterin relation to the activities of Dixon and Herring, not without somequalifications. The quasi-cloistered life of Australian judges is not anunqualified benefit to our society. A judge who is completely detached from thereal world risks losing the capacity to understand community attitudes and thepracticalities and exigencies of everyday life, a capacity that is essential to thedispensation of justice. In a variety of ways, including, for example, thesentencing of criminal offenders, the award of damages in personal injurycases, the determination of whether a given publication is capable of beingdefamatory, the determination of whether a course of conduct is harsh orunconscionable, or the consideration of matters of public policy or publicinterest/public benefit, a judge must, necessarily, be aware of and sensiblyreflect prevailing community feelings and standards. 14

There is a middle ground between clearly improper politicking and a totalabsence of contact with or interest in the world of public affairs and politicaland other controversy. This presents something of a dilemma for the judge whois politically minded in the sense of being keenly interested in civic affairs. Itmay be difficult for such a person to decide what to do and what not to do inboth public and private life. The dilemma is exemplified frankly in the wordsof Mr 'ustice FortaslS appearing before the United States Senate JudiciaryCommittee in 1968 during the hearings on his ill-fated nomination for theoffice of Chief Justice of the United States:

I don't know how anybody can be a person and not discuss with his friendsthese days questions about the budget and about the Vietnam war. fIn a person

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On his appointment to the Supreme Court of South Australia, E F Johnston, QCpublicly resigned his membership in the Communist Party of Australia: Tn·bune,12 August 1983.D Dawson, supra nIl, 22.Judges can and regularly do make controversial statements in their judgments.Within the area of liberal or conservative policy-making that is an acknowledgedpart of the modem judicial ftmction, judges are free to be outspoken andfrequently they are. This is as it should be.Abe Fortas (1910-1982), W~shington lawyer, adviser to Presidents, AssociateJustice of the Supreme Court of the United States (1965-1969).


too. I am a Supreme Court Justice, but I talk to~ple, and people talk to me. Idon't see how you can avoid questions like that. 6

Understandably, much is left to the good sense and dictates of conscience ofindividual judges to decide for themselves what activities are or are notconsistent with an independent, impartial and fearless judiciary. No doubtreflecting the conservative nature of the legal profession, most Australianjudges tend to play it safe by minimising involvement in extra-judicialactivities at least as regards those acted out in public. However, over the last 20years there have been several judges, notably the late Mr Justice Murphy of theHigh Court of Australia and the President of the New South Wales Court ofAppeal, Mr Justice Kirby, who have made regular public pronouncements on arange of public issues, some of them dealing with controversial subjects. Eventhough such statements have been frowned upon within the predominantlyconservative legal establishment, there has never been any serious suggestionthat they undermine the independence or integrity of the judiciary. To theextent that they encourage public awareness of important issues about theadministration of justice and help to dispel some of the mystique of the law,they are to be welcomed.

(2) In terms of acceptable extra-judicial behaviour it is not regarded as athreat to the independence, impartiality or integrity of the judiciary forAustralian judges to participate in seemingly non-controversial activities suchas those associated with judicial administration, law reform agencies, paroleagencies, religious, masonic, cultural or charitable organisations, sportingorganisations (notably horse racing clubs), other private clubs (apparentlyincluding those which employ some discriminatory admission policies), anduniversities. In some of these situations there is express legislative mandate forsuch extra-judicial conduct. 17

(3) Nor is it necessarily improper for a judge to have dealings with theexecutive branch of government concerning the administration of the judicialbranch, although it is customary for such dealings to be conducted by the ChiefJustice or Chief Judge of the particular court.

(4) Subject to the third specific aspect of the basic prohibition referred toabove, it appears that there is no absolute prohibition on judges giving mediainterviews or writing letters to newspapers or magazines. In practice it seldomoccurs. 18 .

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Quoted in Bruce Allen Murphy, The BrandeisIFrankfurter Connection: TheSecret Political Activities o/Two Supreme Court Justices (1982) 4. Justice Fortaswas eventually forced to leave the Supreme Court because of fmancial rather thanpolitical aspects of his extra-judicial activities. Bruce Allen Murphy, Fortas: TheRise and ~uin ofa Supreme Court Justice (1988).One example is the membership of the Chief Justice of the High Court ofAustralia on the National Debt Commission: s 6, National Debt Sinking Fund Act1966 (Cth).See D Dawson, supra nIl. The Chief Justice of the Family Court of Australia,Justice A B Nicholson, has used the letters to the editor colwnn to express hisviews concerning the use of mediation in his court (Age, 9 August 1991 and 14December 1991) and on the future of the Age newspaper (Age, 4 October 1991),and has been interviewed on the operations of the Court (Age, 6 April 1992).Since this article was submitted for publication there has been nationwide m~aattention focussed on allegations of gender bias in the Australian legal system,


(5) There is acceptance in some Australian jurisdictions that there isnothing wrong in princifle in the use ofjudges to conduct Royal Commissionsor Boards of Inquiryl or to act on non-judicial tribunals (such as theAdministrative Appeals Tribunal) or to take temporary leave from the bench toact as diplomats or to run specialist executive agencies such as the NationalCrime Authority20 or the Australian Security Intelligence Organization.

THEMES

This article attempts to fill a gap in the recording of Twentieth CenturyAustralian legal history. It is notable that there is relatively little Australianliterature in the fields of judicial biography,21 the social and politicaldimensions of the legal system,2~ and the judicial process.23 The generalpublic knows something of the organisation and operations of the judicialbranch of government but next to nothing about those activities of judgeswhich are not acted out in the nation's courtrooms. It is the modest claim ofthis writer that the events described below do occupy an important place in acrucial period of contemporary Australian politico-legal history and serve toillustrate the power and influence wielded by the judiciary. The article istherefore primarily narrative in form. It records events which have receivedalmost no scholarly attention largely because of the limited availability ofarchival evidence of covert judicial politicking.

The last section of the article examines the types of justifications whichwere advanced at the time for the overt activities and offers an assessment of

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especially the judiciary. In Victoria, following a robust newspaper editorialcriticising gender bias in the Victorian judiciary (and an equally robust treatmentof the subject by the newspaper's chief political cartoonist), Chief Justice J HPhillips, noting that he was breaking with a century-long tradition that the judgesdid not respond to public attacks upon them, wrote to the newspaper defendingthe judges. A letter from the Chainnan and Vice-Chairwoman of the VictorianBar responding to the same material was published in the same issue as the ChiefJustice's letter: Age, 10 and 13 September 1993.See generally, G Winterton, "Judges as Royal Commissioners" (1987) 10UNSWLJI08.Although it must be said that the appointments of Justice D Stewart and Justice JH Phillips as successive Chainnen of the National Crime Authority createdcontroversy in their respective States of New South Wales and Victoria. In NewSouth Wales some judges made their displeasure public. Both judges resignedtheir State judicial commissions and received commissions as judges of theFederal Court ofAustralia.The main works are Z Cowen, Isaac Isaacs (1967); B d'Alpuget, Mediator: ABiography ofSir Richard Kirby (1977); D Marr, Barwick (1980); B Dabschek,Arbitrator at Work: Sir William Raymond Kelly and the Regulation ofAustralianIndustrial Relations (1983); R Joyce, Samuel Walker Griffith (1984); J Rickard,H B Higgins; The Rebel as Judge (1984); C Lannour, lAbour Judge: The Lifeand Times ofJudge Alfred William Foster (1985); J Scutt (ed),\Lionel Murphy: ARadical Judge (1987). See also C L Pannam, "Dante and the Chief Justice"(1959) 33 ALI 290; C L Pannam, "The Radical ChiefJustice" (1964) 37 ALI 275;C L Pannam, "Judicial Biography - A Preliminary Obstacle" (1964) 4 UQU 57.P O'Malley, Law, Capitalism and Democracy: A Sociology of the AustralianLegal Order (1983). _M Kirby, The Judges (1983); B Galligan, Politics o/the High Court (1987).


both the overt and the covert activities. It is argued that the events describeddemonstrate how the political extremism of the Cold War infected the judicialbranch of government, that the judges concerned went beyond the limits ofpermissible judicial conduct, and that in several cases the judges, wittingly orunwittingly, served that part of the conservative political agenda which wasdirected towards suppressing radical or "extreme" left wing political activitiesand generally advancing the cause of the conservative political parties.

THE mSTORICAL CONTEXT

The episodes described below need to be understood in the context of theworldwide spread of Communism prompted by the Bolshevik Revolution,24 thefundamental reordering of international power relationships which followedthe end of the Second World War,2S and the fierce political combat whichsurrounded the fundamentally divergent efforts of the Chifley and earlyMenzies Governments to shape post-war Australia and to realise its place inthe emerging Cold War order. The Bolshevik Revolution led directly to theestablishment of the Communist Party of Australia ("CPA") in 1920.26 Theworld's first successful socialist revolution resulting in the creation of theSoviet Union was a signal to the more doctrinaire conservatives in Australianruling class circles like Edmund Herring and John Latham that their powerand values (in Herring's case, but not in Latham's, the values of ultraconservative Christianity) were being affronted and threatened by the classconflict which Marxists saw as inevitable in a rapidly decaying capitalisteconomy. From its inception therefore the CPA was labelled by conservativesas a subversive organisation and had to fight off repeated attempts to outlaw itin the 1920s and 1930s.27

There was a lull in anti-Communist agitation in Australia in the four yearsafter Nazi Germany's invasion of the Soviet Union in 1941. For some citizensin the then predominantly Christian Australia, notably Catholics, the SovietUnion was, despite its involvement in the war against Germany, the great antiChrist and the CPA was no less a mortal enemy despite its enthusiastic supportfor Australia's role in the struggle against Nazism and Japanese militarism.28

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For example, E H Carr, The Bolshevik Revolution, 1917-1923 (1950); GeorgeF Kennan, Russia and the West Under Lenin and Stalin (1961).See D F Fleming, The Cold War and its Origins 1917-1960 (1961); G Kolko, TheLimits o/Power: The World and United States Foreign Policy,J945-1954 (1972);W LaFeber, America, Russia and the Cold War, 1945-1984 (1985); J L Gaddis,The Long Peace: Inquiries Into the History o/the Cold War (1987); Melvyn PLerner, A Preponderance of Power: National Security, the T11ImanAdministration and the Cold War (1992).A Davidson, The Communist Party 0/ Australia: A Short History (1969);R Gollan, Revolutionaries and Reformists: Communism and the AustralianLabour Movement 1920-1955 (1975).R v Hush,· Ex parle Devanny (1932) 48 CLR 487. See generally S Ricketson,"Liberal Law in a Repressive Age: Communism and the Law 1920-1950" (1976)3 Mon LR 101; D Watson, "Anti-Communism in the Thirties" Arena, No 37(1975) 40.T Truman, Catholic Action and Politics (1959); E Campion, Rockchoppers:Growing Up Catholic in Australia (1982), Ch 4; J D Pringle, Australian Accent


The emergence of the Cold War in late 1945 and early 1946, its intensificationin 1947-1950 and the continuing Stalinist attachment of the CPA to the SovietUnion was seen by many Australian anti-Communists as vindication of pastattempts to strangle the CPA and as ample justification for a renewed crusade.More than ever, according to the prevailing conservative forces of which thejudiciary formed an integral part, dire action was called for if Australia was toavoid falling victim to the advances of Russian and Chinese Communism andits treacherous Australian stooges. Every segment of Australian soci~, thejudiciary included, was affected by the ensuing anti-Comm~st hysteria. 9

FIVE TALES

Polemicist

Frank Tenison Brennan was born at Maryborough, Queensland in 1884.30 Hegrew up in Maryborough and became a solicitor in 1911 after serving as anarticled clerk to his brother. In 1918 he was elected as an endorsed AustralianLabor Party C'ALP") member of the Queensland Parliament. In 1922 he wasthe central figure in a case in which two men were convicted of attempting tobribe him to cross the floor of the Legislative Assembly and bring down theLabor Government which held office by the barest of majorities.31 He becamefirst an Honorary Minister and then Minister for Public Instroction in thatGovernment in 1923.

In 1924 he ceased practising as a solicitor and was admitted to practise as abarrister taking advantage of an amendment to the law in that regard which hehad supported in -1921.32 The following year he was appointed, amidcontroversy, to the bench of the Supreme Court of Queensland, first as anacting judge and then three months later as the central judge at Rockhampton.One commentator has said ofBrennan the judge:

He was criticized for his short prison sentences, for dispensing with counsel'sarguments to provide quick relief for litigants, and for his extra-judicial andpolitical comments from the bench.33

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(1965), Ch 4; B A Santamaria, "'The Movement': 1941-1960 - An Outline" inH Mayer (ed), Catholics and the Free Society (1961).Here and elsewhere in this article the author has drawn on the expandedtreatment of the emergence of the Cold War in Australia in L W Maher, "SoundsDreadful: Broadcasting Regulation, Communism and the Early Cold War Periodin Australia" (1991) 18MULR 368. .For accoWlts of Brennan's life see Australian Dictionary ofBiography ("ADB"),Vol 7, 402; D B Waterson, A Biographical Register of the QueenslandParliament 1860-1929 (1972) 19-20; R Johnston, History ofthe Queensland Bar(1978) 24, 34, 82-84; Appointment to the bench [1925] St R Qd V; Obituary[1949] St R Qd v.R v Sleeman & Connolly [1922] St R Qd 273; R v Sleeman '& Connolly No 2[1922] St R Qd 278.Supreme Court Act 1921 (Qld); ADB, supra n 30,403. The amendment allowedsolicitors of five years standing to be admitted as barristers. Although Brennanwas later criticised for his support for and resort to the amendment, it is not beingsuggested here that he should not have done so.ADB, supra n 30, 403.


On Sunday 7 January 1945, during a visit to Sydney, Brennan made apublic pronouncement on the evils of Communism for Australia saying that itthreatened a return to feudalism.

To revert to a Communistic state will involve us in a desperate system ofespionage with a resultant national degradation of suspicion and a consequentdeprivation of our freedom. Under a democracy we have a liberty which can beregulated to ensure for us a justifiable privilege of a rightful measure of socialjustice. ff we are to be placed Wlder the heel of an ideology governed bybureaucrats, then our methods of living will be reduced to that of the bullock inthe team - well fed but with the yoke of a vicious discipline, imposed by ourown consent.34

Brennan must have realised that to make such views public would attractattention and risk stirring up public controversy if only because they were thetype of remarks which politicians made publicly. The potential for controversywas increased betause by late 1944 and early 1945 popular sympathy with theSoviet Union and the CPA was at a peak. The CPA was an ardent supporter ofthe war effort and its reaction to the judge's pronouncement came within aweek. The official newspaper of the CPA in Queensland, Guardian, respondedto Brennan's comments vigorously:

Mr Justice Brennan's attack on our Chinese and Russian allies would bebrushed aside as stupid, though dangerous prattle, if the remarks came fromanyone other than a Supreme Court judge. But coming from a judge, somepeople might imagine that his words are unbiassed and that he has confinedhimself to the facts. Judge Brennan is no more capable of giving an unbiassedpolitical judgment than he is of delivering an unbiassed legal judgment in apolitical case. Judge Brennan is well-fitted to talk about "deprivation offreedom," however, because he is an ardent admirer of the Spanish FascistDictator, General Franco. The judge has admitted that in one importantpolitical case his judgment was corrupt.35

The last sentence in that explosive passage was a reference to a celebrateddispute within the ALP in Queensland in 1926. The central figure in thatdispute was Frederick Woolnough Paterson. Paterson occupies a unique placein the annals of Australian law and politics. In 1944 he was elected to theQueensland Parliament, thus becoming the only CPA-endorsed candidate everto be elected to an Australian Parliament.36 Back in 1926, before he joined theCPA and before he was admitted to the Queensland Bar, Paterson hadunsuccessfully sought nomination as the ALP candidate in the State electorateof Port Curtis. The Queensland Central Executive (tlQCE") of the ALP appliedto Brennan for an injunction to restrain Paterson from passing himself off asthe endorsed ALP candidate.

The Guardian article purported to summarise ~~en~an's disposition of thePort Curtis case. The essence of this account and the overall attack onBrennan which it contained was that he should have dismissed the ·applicationon the basis that the QCE had no standing as an unincorporated association.

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Sydney Morning Herald, 8 January 1945; Courier Mail, 8 January 1945.Guardian (Queensland), 12 January 1945.For details of Paterson's career, see F W Paterson, "The Early Years" (1980) 1Sixty Years o/Struggle 7; F W Paterson, "The Later Years" (1981) 2 Sixty Yearsof Struggle 9; D B .. Waterson & J Arnold, Biographical Register of theQueensland Parliament 1930-1980 (1982) 74.


Instead, according to the Guardian article, Brennan had acted "under politicaldirection" from the ALP so as to enable the QCE, by giving it anadjournment, to overcome the problem of standing; when the hearingresumed, Brennan had wrongly granted the QCE the injunction. The Guardianwent further back in time and asserted that there was a cloud over Brennan'sappointment to the Supreme Court. It criticised his sentencing of workers andcalled for a Royal Commission into his appointment, implying that he was aNazi sympathiser. All in all it was, in the vernacular of today's journalism, acomprehensive "demolition job" on the judge's reputation and integrity. Innormal circumstances it should have prompted the Attorney-General toconsider instituting contempt of court proceedings against all thoseresponsible for publication of the item. No such action was taken and the rowworsened.

On 1 March 1945 at the conclusion of the sittings of the Supreme Court inMaryborougb, but before adjourning the court, Brennan adopted the highlyunorthodox course of making a statement in court in response to the Guardianarticle.37 He began by saying that his position in the first place was that of anAustralian citizen with a deep sense of the country's greatness. His nextposition was that of a judge of the Supreme Court. His judicial oath requiredhim to guard and defend the Supreme Court against aggression by suchinnovations as the Russian and German secret police. The judge said headmired Communism for the Russians who were emerging from a state ofservitude and feudalism which Britishers had left behind over the pastcenturies, but that Australians should resist being pushed about by bureaucratsand should be wary of lying propaganda.

According to Brennan, the Soviet Government had pretended to beconcerned about the lack of a Christian revival in the Soviet Union while at thesame time it instituted repressive anti-Christian measures. Drawing on hismemory of an earlier clash with Paterson, Brennan then directed his attentionto the feisty barrister-politician. He recalled that in 1933 Paterson hadappeared for an accused person in a criminal trial, R v Short, over whichBrennan had presided. According to Brennan, Paterson had opened his addressto the jury as follows:

Gentlemen of the jury) the arguments of the learned Crown Prosecutor areabout as stupid and unconvincing as that part of the Scriptures referring to theHoly Ghost descending on the Apostles with tongues of fire and speaking tothem in different languages.38

Brennan went on to recall that, in response to Paterson's appeal to the jury, hehad ordered Paterson to resume his seat and had threatened him that, as theSupreme Court was a Christian court, he would not tolerate Paterson's atheistic

~ utterances and that, ifPaterson persisted, he would have him removed from thecourt.

The judge returned to contemporary events and offered the followingobservations:

37

38

This account is based on the Maryborough Chronicle) 2 March 1945 and theCourier Mail, 2 March 1945. I am indebted to Sir Gerard Brennan for providingme with a copy of his file of newspaper stories concerning his father's clash withPaterson.Courier ltJail) supra n 37.


It appears to me that a section of the Communist Party in Australia would, ifthe occasion arose, be as desperate, Wlscropulous and viciously criminal in theirlUlcontrolled activities as have been those EIAS thugs in Greece who refused tobe boWld by the majority vote of the people, and after destroying Athens andkilling thousands then took thousands of innocent hostages and murdered themin cold blood.39

Brennan then turned his attention to the Guardian story. He said that Paterson,as a barrister and thus contrary to his obligations to a member of the judiciary,"has caused to be printed a callous lie in a Communistic rag, regarding thematter of a judicial proceeding in my court." In fact, although the Guardianarticle mentioned Paterson, there was nothing in the article to sugge~ thatPaterson had written it or authorised its publication.

Brennan next dealt with what had happened in 1926 in the Port Curtiscase. According to Brennan, Paterson was the leader of a group in theGladstone district which, during a State election campaign, had attempted towhite-ant the ALP by subversive Communist methods. Following theirexpulsion from the ALP, the group members had refused to return an ALPstamp and the State Executive of the ALP had sought an injunction to restrainPaterson and his followers from wrongly using the stamp.

The application came before me. I pointed out that the ALP not being a bodyrecognised by law could not succeed on the application. Being Wlorthodox,however, and desiring to see justice done, I suggested that, if the QCE wouldregister as a trade union Wlder the Arbitration Act, such registration would givethe ALP a standing that would be judicially recognised. Mr Theodore,40 whowas campaign director, refused to entertain the suggestion. I then adjourned theapplication for a day or several days, and intimated that, if the certificate ofregistration was not filed as a record, I must dismiss the application. The ALPacted on my suggestion, filed the registration, and I granted the injunction.41

Brennan said that Paterson was intimately acquainted with these facts, yet hecaused to be published in the Guardian a statement that the QCE not onlyinduced him to alter his decision, but under political direction made him do so.

Whatever happened outside the incident here related by me was no concern ofmine. Neither was I aware of what transpired after the injlU1ction was granted.All I am concerned about \is to show that Mr Paterson is as politicallylUlscropulous as he is dishonest. By his attack on me, Mj Paterson haschallenged me to refute his allegations, as I do by this statement:42

Paterson joined issue immediately. The following day he publiclychallenged Brennan to issue proceedings against him for damages fordefamation. He said that, had Brennan's attack on him been made from anunprivileged position, he would have had no hesitation in seeking damages fordefamation from Brennan. Paterson then went on to say:

3940

4142

Ibid.Edward Granville Theodore (1884-1950), Labourer, union official, member of theQueensland Parliament, Premier ofQueensland (1919-1925), later member of theCommonwealth Parliament, Deputy Prime Minister and Treasurer (1929-1930).Courier Mail, 2 March 1945.There are some discrepancies between the two newspaper accounts of this part ofthe judge's statement. This article relies on the version reported in the CourierMail, supra n 41.

1993] Tales o/the Overt and the Covert 163

For his [Brennan's] own benefit, let me state that I did not write the article, norcause it or any part of it to be published.43

Paterson proceeded to give his version of what had led up to and taken place inthe 1926 case. There was little material difference between the two versionssave and except when it came to Theodore's involvement.

The judge might well go a little further and tell the public where and when hegot the infonnation about Mr Theodore's attitude, and also explain how theQCE could become registered Wlder the Arbitration Act or for that matter,lUlder the Trade Union Act. Certainly, I was not aware that the judge had anyinfonnation about Mr Theodore's attitude, although in his statement [the judge]said that I was. The judge stated that when the application came before him herecognised my dishonesty, and he also stated that all he was concerned aboutwas to show I am as politically Wlscrupulous as I am dishonest. I am preparedto leave it to the judgment of the thousands of people in Queensland who knowboth the judge and me personally, and not sim~ by hearsay report, to decidewhich of the two is Wlscrupulous and dishonest.

Paterson drew attention to a contemporary newspaper account of the resolutionof the Port Curtis case which reported Brennan praising Paterson as a "fineand respectful man".45

These are Mr Justice Brennan's words made at the time when the facts of thecase were fresh in his mind. Yet now that he is rattled he has the cheek to statethat he recognised my dishonesty at the time.46

At this stage Brennan, again unwisely, appears to have been determined tohave the last word. He provided a statement in response to Paterson's remarksto a reporter employed by the Courier Mail expecting it to be published in thatnewspaper on 5 March 1945. It was not published that day, probably because itwas not delivered in court and therefore did not clearly attract any fairrepOrting privilege. Brennan also had unorthodox views about the role of thepress since he described the newspaper's failure to publish his statement as "aserious neglect of duty of that journal to the Supreme Court".47 Inspired by hisin-eourt pronouncement at Maryborough four days before, Brennan made thestatement in the Supreme Court on circuit at Bundaberg:

The reply to [sic] Mr Paterson, MLA, to the statement I made from the benchregarding his attack on my judicial administration in the Port Curtis electionwhen an injunction was granted shows with what cleverness Mr Paterson canwrap up verbiage. Stripping his statements-of all surplusage leaves the nakedtruth in favour of this court's complaint. Mr Paterson su~gests that I should suefor defamation but he adds "You cannot sue me because not only did I not makethe statement but I was not responsible for the publication of any part of it." Arecent action for defamation against a "Leftist" ended in favour of the plaintifffor damages and costs against the "Leftist", who met the claim by filing his ownpetition in bankruptcy. It looks to me as though an irresponsible minority hasdriven fear through blackmail into the people ofAustralia. No one appears to begame to stand up to Wljust attacks. The Portland butcher of New South Waleswho attempted to nut his own business on business lines was victimised andruined. Statements I make from time to time are uttered mainly on behalf of the

4344454647

Courier Mail, 3 March 1945.Ibid.Brisbane Courier, 30 April 1926.Courier Mail, 3 March 1945.Bundaberg News-Mail, 6 March 1945.


ideals of a White Australia, to which the AClU, the Reverend HewlittJohnson,48 and the Communist party are opposed. If the Courier-Mail wasafraid to publish yesterday's statements because they were not uttered from thebench, then I accept its fear and give it protection by this reply from thebench.49

Three days later the Guardian resumed its attack on Brennan claiming that,in his "vicious personal attack" on Paterson, Brennan had admitted all theessentials of the newspaper's original article about Brennan. The Guardianclaimed that Paterson had not written the article and had not been consultedabout it. Again Brennan was accused of taking the ALP's side in the PortCurtis case and ofbeing involved in corrupt behind-the-scenes manoeuvring inthe case.so ~

A week later Paterson used the columns of the Guardian to take Brennan totask for his Bundaberg statement, which he described as fit for a children'scolumn or a comic comer. In relation to his address to the jury in the Shorttrial, he called Brennan "an unmitigated liar".

No such statement was ever made by me, and I would suggest that the judgeshould never assmne that other members of the legal profession are as stupid ashis remarks from the bench concerning Russia, Communism and myself showhim to be.Sl

There was then a lull in the storm until 28 June 1945 when Brennan, whowas sitting on circuit in Rockhampton, made the longest of his statements fromthe bench in his dispute with Paterson.S2 This statement was, in substance, anexpanded repetition of his earlier two in-court statements.

I am a citizen of Australia, and as such am entitled to publish my views onnational questions. I am also a member of the judiciary, the greatest bulwark ofBritish liberty, and am, therefore, required to jealously guard my positionagainst intrnsion by irresponsible interlopers who are attempting to claim anoverbearing authority in our national affairs.

Brennan said that he was forced to join issue with Paterson who,although one of our legislators, should not, as a representative of the people,hold office with a latent intention of overthrowing our constitutional fonn ofgovernment which would also involve the destruction of our judicial system.

As for the Short trial, Brennan suggested that Paterson had stuck to hisversion of his address to the jury believing that he could not be contradictedbecause the incident had not been reported in a Townsville newspaper, andbecause there was no shorthand record of counsel's addresses. Brennan had,however, done some detective work of his own which probably accounts for hisdelayed response to Paterson's most recent contribution. Brennan said that hehad communicated with counsel who had prosecuted the Short case and whose"hazy recollection" included the judge "interposing [a] disapf'roving rebuke tocounsel's observations referring to some religious tenet". Brennan was adamant

48

49SOSI52

Hewlett Johnson (1874-1966) Dean of Manchester and later Dean of Canterburyand enthusiatic supporter of the USSR as 8 result of which he was dubbed "theRed Dean".Bundaberg News-Mail, 6 March 1945.Guardian, 9 March 1945.Guardian, 16 March 1945.What follows is based on the verbatim report published in the the MomingBulletin (Rockhampton), 29 June 1945. -

1993] Tales ofthe Overl and the Coverl 165

that he had in his earlier pronouncement accurately recalled Paterson's"atheistic utterances" to the jury. But Brennan went even further. He haddiscovered a contemporary press account which corroborated his version of theincident.53 It was not him but rather Paterson who had lied and who hadpractised Nazi propaganda techniques. After reading his statement Brennandirected the Court's Registrar to fonvard a copy of the statement to theQueensland Barristers' Board.

If Brennan believed that he had trumped Paterson and brought theiracrimonious exchange to a decisive conclusion, he was soon disabused of thatnotion. Three weeks later the Morning Bulletin of Rockhampton published along reply by Paterson to what he described as the "wild ravings" of Brennan'smost recent statement.54 There was no excuse, Paterson claimed, for Brennannot suing him for damages for defamation. Paterson likened Brennan'spolemical style to that of the Nazi Propaganda Minister, Joseph Goebbels.Again, Paterson denied that he had authored the original Guardian article andagain he challenged Brennan to sue him. Paterson's response to Brennan'sversion of the Short incident was as follows:

(1) The fact that there was no press report of the incident as described byBrennan was consistent with it not having occurred.

(2) The newspaper report relied upon by Brennan was curious and itsreliability had not been established.

(3) Although counsel's remarks to the jury were not normally transcribedthere should nevertheless have been a court record of the judge's interventionrebuking Paterson since such a record would have been required for any appealthat may have been brought.

(4) The court reporter whom Paterson had consulted had no recollection ofthe incident.

(5) Retreating somewhat from his original position, Paterson contendedthat if he had made the statement, he was not the only person holding aresponsible public position who did not accept the literal truth of everything inthe Bible.

Paterson concluded by repeating his earlier claim that he would leave it tothe judgment of Queenslanders who knew both him and the judge to decidewho was the better citizen either in a public or a private capacity. He attackedBrennan for sheltering behind his position of absolute privilege and thenissued a challenge to the judge saying that, if necessary, he would come toRockhampton for that purpose:

Let [Brennan] come out of his retreat and meet me in the open free from allprivileged protection, and debate the question, whether he or I have the moreconsistent record in the struggle against Fascism, or whether he or I am themore fitted to occupy our responsible public positions.5S

The public slanging match between judge and parliamentarian had gone onin bursts for six months. Brennan had started the fight and Paterson finished it.Given the intense hostility of the Catholic Church to atheistic\Communism, itwas not altogether surprising that such hostility should find, in the voice of one

5354S5

Catholic Press, 24 August 1933.Morning Bulletin, 17 July 1945.Ibid.


of the Church's adherents in the judiciary, an outlet that would otherwise nothave been available. That fact and Brennan's strikingly idiosyncratic approachto his judicial tasks56 go a long way toward explaining why the public rowerupted and why it was sustained for so long.

As far as it is possible to judge from available sources, the Supreme Courtof Queensland escaped serious damage in the Brennan-Paterson imbroglio.Because of Brennan's relative isolation as the judge responsible for conductingthe court's northern business, the focus of the dispute was directed away fromBrisbane.

Retired security senrice official and "private citizen"William Ballantyne Simpson was born in Balmain, New South Wales in1894.S7 He was educated at the Fort Street Model School and the University ofSydney and was admitted to the New South Wales Bar in 1920. He had servedin the First Australian Imperial Force ("AIF") and returned to service in theSecond AIF rising to the rank of Brigadier. In 1942 he became Director of thethen Commonwealth Security Service and from there he was appointed as ajudge of the Supreme Court of the Australian Capital Territory in 1945. At thetime he was also Judge Advocate General for the Army and the Air Force.

One of the organisations which, after 1945, characterised the problem ofCommunism in Australia as basically one of a clear choice between loyalty toKing and Empire or loyalty to Stalin and Moscow was The Returned Sailors,Soldiers and Airmen's Imperial League of Australia ("RSL"). The RSL hadbeen established immediately after the First World War and from its inceptionhad pursued an undeviating policy of hostility to the CPA and its followers. S8

On 13 May 1948 the RSL Federal Executive passed the following resolution:"That the following clause be added to the Federal Constitution, Rules and ByLaws:- No Communist shall be permitted to become, or remain, a member ofthe RSS&AILA". S9 The Federal President then ruled that the resolution waspart of the Constitution and was immediately operative. The RSL FederalPresident, Eric Millhouse, KC of Adelaide, issued a press statementsummarising what he regarded as the effect of the Executive's resolution:

[A]ll communists and fellow-travellers, whether members of the CommunistParty or not are Wlder the ban, and it is the duty of every State Branch and SubBranch to rigidly implement the resolution. ... State Branches have the powerunder the Constitution to withdraw the Charter of a Sub-Branch if the SubBranch does not enforce the Constitution. hnmediate action is called for fromall State Branches and Sub-Branches.60

S6S758

S9

60

ADB, supra n 30.Who's Who in Australia (1949).G L Kristensen, The Politics ofPatriotism: The Pressure Group Activities oftheReturned Servicemens League (1966).State branches of the RSL had passed similar resolutions in the previous twoyears. For a report of proceedings at the 1946 Victorian RSL State Conference,see the Argus, 26 July 1946.Circular let~, State Secretary to Sub-branches, 24 May 1948, RSL Papers,National Library of Australia, Canberra, Files 2414C and 2966C. I am indebtedto the RSL for allowing me to have access to its papers in the National Librarycollection.


The New South Wales Branch of the RSL promptly endorsed the decisionsof the Federal Executive and appointed a Sub-Committee to makerecommendations for their implementation. Two days later the sub-Committeeduly reported to the State Council which decided to adopt the Sub-Committee'srecommendation that, "If a complaint is made in writing to the State Councilthat a member is a reputed Communist or Communist sympathiser the onus forestablishing a prima facie case shall lie with the informant". The State Councildirected local sub-branches to follow detailed procedures prescribed in the RSLFederal Constitution, Rules and By-Laws and the State Branch Constitution,Rules and By-Laws. The State Council also accepted the Sub-Committee'srecommendation, "That nomination for membership forms should now includethe question, 'Are you a Communist'?".61

Within the New South Wales and Australian Capital Territory branches ofthe RSL there was determined opposition to the ban on Communists and fellowtravellers. The ban was challenged in proceedings in the Supreme Court ofNew South Wales before Mr Justice Sugerman, who after a hearing whichspanned six days, reserved his decision on 13 September 1948.62

The annual congress of the ACT branch of the RSL began in Canberra on14 September 1948. One of the items on the congress agenda was a motionproposing that the ACT branch urge the revocation of the Federal Executivedecision banning Communists from belonging to the organisation. Thecongress was officially opened by Mr Justice Simpson. Simpson told congressdelegates that communists white-anted every organisation within which theyoperated. He warned the delegates that, if the communists were permitted toenter the RSL:

We will find ourselves controlled by a small coterie who will not let us talk. orthink. The very nature of the communist makes him ineligible for membership.We stand for everything they do not. They stand for another ruler andCOWltry.63

Casting around for some vivid military imagery, he added that admitting aCommunist to the RSL was like a man handling a grenade with the pin out he hurt himself, not the enemy.

Simpson's speech was not front page news. It was simply one of a constantstream of stories about the mounting menace of international and domesticCommunism which filled Australian newspapers as the Cold War hadunfolded. But Simpson's remarks were not ignored by the press and did attract

6162

63

Ibid.The following month Justice Sugennan granted an injunction restraining the RSLfrom expelling Communists and Communist sympathisers: Bergeest v TheReturned Sailors, Soldiers and Airmen's Imperial League of Australia (NSWBranch) (Supreme Court (NSW), 14 October 1948, unreported judgment ofSugennan J). A Full Court of the Supreme Court ofNew South Wales (Jordan CJ,Street and Maxwell JJ) allowed the RSL's appeal against that order: The ReturnedSailors, Soldiers and Airmen~ Imperial League of Australia (NSW Branch) vBergeest (No 375 of 1948, unreported, 3 March 1949).Canberra Times, 15 September 1948.


attention outside Canberra. In Melbourne one newsparr reported the speechunder the headline "Judge Tells RSL Reds Ineligible".6

The following week in the House of Representatives, Allan Fraser, the ALPmember for the seat of Eden-Monaro, asked E J Holloway, who wasrepresenting Attorney-General H V Evatt, to inquire of Simpson whether hehad been correctly reported in his remarks to the RSL in Canberra and whetherthe Chilley Government considered it desirable that a Supreme Court judgeshould express publicly such strong views on a matter of acute politicalcontroversy.6S Outside the House, Fraser indicated that his concern was thatthe judge's speech had the capacity to damage public confidence in thejudiciary. The right of the CPA to continue to exist as a political party was amatter of acute political controversy and the judge in his speech to the RSLcongress had done what a judge should never do - he had taken sides in apolitical controversy.66

A week later Holloway told the House that it appeared that the press reportsof the judge's statements at the RSL congress were substantially correct.Holloway then contended that the judge's remarks had not been made excathedra, but rather merely reflected one private individual's opinion, inSimpson's case a returned serviceman of two wars:

Freedom of speech is basic to the whole ideal of democratic citizenship, andany member of the judiciary speaking as a private citizen is quite entitled toexpress publicly his views on any matter ofpublic interest.67

The critical reaction to Simpson's speech appears to have ceased at this point.

Confidant

Owen Dixon was born in Melbourne in 1886.68 He had an outstanding careerat the Victorian Bar commencing in 1910. In 1926 he served for a short timeas an acting judge of the Supreme Court of Victoria. Three years later he wasappointed to the High Court of Australia. Dixon was an immediate success as ajudge and in time he acquired a reputation as one of the outstanding judges ofthe common law world. Between May 1942 and November 1944 Dixon took

64

65666768

Argus, IS September 1948. Interestingly, on the same day that the intelligenceofficial turned judge was publicly warning the RSL of the Communist menace, aninconspicuous notice appeared in the the Brisbane Telegraph announcing that apublic debate would be held the following evening in Brisbane on the subject"That Communism is not compatible with personal liberty". To some extent thatdebate, which provoked nationwide protests and resulted in the prosecution andconviction of Gilbert Burns, a member of the Queensland State Executive of theCPA, for sedition, may have deflected attention away from Simpson's speech.Bums v Ransley (1949) 79 CLR 101; L W Maher, "The Use and Abuse ofSedition" (1992) 14 Syd L Rev 287.Com ParI Deb, 1948, Vol 198, 583-584 (21 September 1948).Canberra Times, 22 September 1948.Com ParI Deb, 1948, Vol 198, 934 (28 September 1948).For details of Dixon's career see J D Merralls, "The Rt Hon Sir Owen Dixon,OM, GCMG, 1886-1972" (1972) 46 AU 429; D I Menzies, "The RightHonourable Sir Owen Dixon, OM, GCMG" (1973) 9 Melb U L Rev 1;N M Stephen, Sir Owen Dixon: A Celebration (1986)~ G L Fricke, Judges o/theHigh Court (1986) 111-122.


leave from the court and selVed as Australian Minister in Washington.69

Dixon was highly regarded in the United States and counted among his closefriends there, such influential public figures as Felix Frankfurter70 and DeanAcheson.71 In Australia Dixon was on close terms with leading conselVativepoliticians, public selVants and diplomats.

Following the end of the Second World War, US diplomats and militaryattaches in Australia stepped up the collection of information on the identityand activities of CPA members and sympathisers for the purpose oftransmission to Washington. The US officials used a variety of methods toobtain such intelligence. At times they received the co-operation of theCommonwealth Investigation SelVice ("CIS"), which was the successor toSimpson's wartime Security SelVice, even though most US diplomats andsetVice attaches in Australia at the time had an abiding suspicion about thesocialist Chifley Government and were sceptical about the professionalcapabilities of the CIS. In some instances the US officials openly approachedthe CPA for information. They also established and exploited private sourcesof information such as newspaper proprietors, journalists, clergymen, membersand officials of political parties including the ALP, trade union officials, andjudges. In this context Dixon was treated as a highly reliable source ofinformation because, apart from anything else, he was so well known andhighly regarded in Washington.

In April 1947 the US Consul General in Melbourne, Richard F Boyce,arranged with the President of the Australian Council of Trade Unions,P J Clarey, to gather information on Communist activities in Australia fromD Lovegrove, an organising secretary of the Victorian ALP and himself aformer CPA member.72 The US Embassy's Labor Attache passed along toWashington intelligence gathered from Lovegrove, including the accusationthat Professor R M Crawford' of the History Department in The University ofMelbourne and John Rodgers, (both of whom were involved in the AustraliaSoviet Friendship movement - itself regarded by the CIS as a CPA front)were Communists.73 Unabashed, Boyce approached Rodgers directly about

69

70

71

72

73

Judiciary (Diplomatic Representation) Act 1942. Between 1940 and 1942 Dixonalso perfonned extra-judicial service as Chainnan of the Central Wool Committeeand on the Australian Coastal Shipping Control Board, the Marine War RisksInsurance Board, the Marine Salvage Board and the Allied Consultative ShippingCouncil: J D Merralls, supra, n 68, 430.Felix Frankfurter (1892-1965), prominent member of the Harvard Law School,Associate Justice of the Supreme Court of the United States (1939-1962) andadviser to President F D Roosevelt. See 0 Dixon, "Mr Justice Frankfurter"(1957) 67 Yale L J 179. Some evidence of the FrankfurterlDixon connection canbe found in J P Lash (ed), From the Diaries ofFelix Frankfurter (1975). For adetailed account of Frankfurter's extensive politicking as a judge, see B AMurphy, The Brandeis/Frankfurter Connection: The Secret Political Activities ofTwo Supreme Court Justices (1982).Dean Acheson (1893-1971), Lawyer, diplomat, adviser to Presidents, UnitedStates Secretary ofState (1949-1953).R Murray, The Split: Australian Labor in the Fifties (1970) IS; J Jupp,Australian Party Politics (1964) 89.Late in 1946 an attack was made in the Victorian Parliament on Crawford whowas then President of Australia-Soviet House in Melbourne. Crawford's attackerwas concerned about the "virus of Communism" infecting the State's educational


Lovegrove's claim, but it is not clear whether he made a direct approach toCrawford. He did, however, consult Dixon about Crawford, and the StateDepartment was, as a result, advised that:

Sir Owen Dixon doubts that Professor Crawford is a Communist. However, hesays that University professors are so poorly paid in relation to their long yearsof study and the high type of intelligence required for their work that they are adissatisfied group ... and favourable material for the "new order" whichCommunist propaganda promises. When they see men with little or noacademic backgroWld or education, with relatively little intelligence andprinciples, earn large incomes while the professors cannot earn sufficient fortheir well developed needs, th~ are apt to favour a system which promises theintellectual proper recognition. 4

Whatever changes may have occurred in the last 40 years, in the early postwar years Melbourne was still a very closely knit community insofar as theexercise of political and economic influence was concerned. It washeadquarters for many Commonwealth Government departments, notably theDepartment of Defence, and for pastoral, financial and manufacturingenterprises. The membership and office-bearers of organisations such as theEnglish-Speaking Union ("ESU"), The Royal Empire Society, the EmpireHonour League, The Constitutional Club, the Australian ConstitutionalLeague, Moral Rearmament, the RSL, the Institute of Public Affairs ("IFA"),the Liberal and Country Party, the Australian-American Association, the Navaland Military Club, the Victorian Chamber of Commerce, and the Melbourne,Australian and Athenaeum Clubs often overlapped with each other and withbusiness organisations and the defence and security establishment.

The influential individuals who ran these organisations shared a set ofconservative values that were being directly challenged by the ChifleyGovernment's plans for nationalisation of key industries. The members of theseand other kindred organisations were especially united in the vehemence oftheir anti-Communism. A common theme was that the ALP's socialism was aclear and dangerous step on the way to Communism. The impact of concernabout the worsening "Communist menace" in Australia was such that it led toan otherwise unlikely ad hoc alliance between the conservative Melbourneestablishment and elements within the Catholic Church and the right wing ofthe industrial and political branches of the labor movement.75

Dixon's natural environment was the world of these conservativeorganisations and it is scarcely surprising therefore that his involvement in thepolitics of the early Cold War period in Australia was characterised by discreetinformal advice of the kind that he gave to the US Consul and also, as

74

75

system: Vic ParI Deb, 1946, Vol 222, 3250 (14 November 1946). CrawforddenoWlced the attack, but it was renewed the following month: Vic Pari Deb,1946, Vol 222, 3308-3309 (19 November 1946), Vol 223, 4584-4585 (20December 1946). On 15 April 1947 The University of Melbourne made a publicannouncement to the effect that it was satisfied that Crawford had not infringedthe governing principles ofuniversity teaching: Age, 16 April 1947.Labor Attache's Report No 47, 28 May 1947, Enclosure No 10, Department ofState, Record Group 59, National Archives and Records Administration,Washington, DC.B A Santamaria, Against the Tide (1981) 120-122; W J Hudson, Casey (1986)201; see also infra n 139.


indicated below, to influential public servants, and by encouragement given toconservative politicians. However, on one occasion Dixon uncharacteristicallyfound himself swept up into a very public controversy for remarks that he letslip at an ESU meeting. This was perhaps to be expected of a person aboutwhom a close observer has said that he "never ... held views about anythingtentatively".76

On 14 March 1949 Dixon, who was then President of the ESU, addressedan ESU luncheon in Melbourne at which the Leader of the Opposition, RobertGordon Menzies, Dixon's former pupil at the Victorian Bar, was the guest ofhonour. At the time Menzies was engaged in a nationwide pre-election tourcondemming the Chifley Government for its complacency in the face of theCommunist menace. Dixon was reported as telling the gathering that membersof the Commonwealth Parliament, described by Dixon as the "Canberraorchestra", were divided into two categories - those who played the fool andthose who blew their own trompet. "I think that is a clear and completedefinition of what happens at Canberra," said Dixon.77 This colourful analysismight have gone largely unnoticed had it not been for Dixon's parting shotwhich was that, "Mr Menzies has never belonged to either category". Apartfrom the fact that, contrary to Dixon's rather starry-eyed view, Menzies waswell known to favour the trompet on his own behalf, Dixon's remarks wereprovocative because they were made in an election year and, however harmlessDixon's intentions may have been, his comments could only be seen asproviding partisan support for the Leader of the Opposition.

In keeping with a long tradition of parliamentarians exhibiting acutesensitivity to any criticism of themselves, Dixon's remarks instantly createdoffence in Canberra. In the Senate the next day Senator Justin O'Byrne (ALP,Tasmania) asked Acting Attorney-General Senator Nicholas McKenna if heagreed that Dixon had, by casting a slur on the elected representatives of theAustralian people, abused the judge's high office. O'Byrne showed thepolitician's fondness for hyperbole when he asked McKenna to ask Lathampublicly to dissociate the High Court from Dixon's "outrageous attack".78McKenna was careful not to accept the newspaper account of Dixon's remarks.as necessarily accurate. But then he offered a restricted variation of the linethat Holloway had used in responding to criticism of Simpson's publicpronouncement on the menace of Communism the year before. According toMcKenna, the criticism of Dixon was misconceived because, on this informaloccasion, Dixon had spoken as an individual and not ex cathedra.

I think that it has been completely proved that elevation from the bar to thebench of any court does not make a man an angel. He cannot dissociate himselffrom his religion, his politics, his general experience of life, and his wholeoutlook. However, I have not the faintest doubt whatever, that every member of

767778

D I Menziesj supra n 68, 1.Herald, 15 March 1949.Com ParI Deb 1949, Vol 201, 1349-1350 (IS March 1949). Ute following daySenator O'Byme described Dixon's remarks as "contumelious". Ibid 1472. ThePresident of the Senate offered a paean of praise to parliamentarians as a classsaying that "if Sir Owen Dixon made those statements that have been attributedto him, I deplore the fact and regret that a man holding such a high positionshould descend to the standard of conduct of the Yarra Bank or the SydneyDomain". Ibid 1472-1474. -

172 Federal Law Review [VOLUf\ffi 21

the judiciary does try to the limit of his power to be completely impartial. I donot know the circwnstances in which the reported statement was made but Iremind the Senate that there are infonnal occasions when even members of theHigh Court bench become men and not justices.79

On the same day Chifley was asked a similar question in the House ofRepresentatives by another disgruntled ALP backbencher. Chifley's answer wasconsistent with that given by McKenna, but not quite as limited as the ActingAttorney-General's reference to informal occasions.

I assume that he was not speaking in his judicial capacity, but was either hostor chairman at the function, and spoke 8S 8 private citizen. ... I [have] made itclear that I would not attempt to stop anyone from saying what he chose to sayin his capaci!y as a private citizen, so long as his remarks were not seditious orsubversive.80 .

Chifley informed the House that he did not propose to make any suggestion toDixon or to take any other action. At this point in the proceedings Menziesinterjected that the question asked of Chifley contained a gross distortion ofwhat was said by Dixon. In Melbourne the Sun denounced the ALP attack onDixon who was reported as declining to make any public comment. Thecontroversy dissipated. Dixon's thoughts on the critical parliamentary reactionto his ESU speech are not known.

Dixon was particularly close to Sir Frederick Shedden, the Secretary of theDepartment of Defence and probably the most powerful public servant of thetime.81 The extent of CPA influence in Australian life and the belief in thehighest echelons of the foreign policy, defence and security agencies inLondon, Washington and Canberra that the CPA was involved in Sovietespionage in Australia, created severe strains in Australia's relationship withboth the United Kingdom and the United States. This resulted in thesuspension in June 1948 by the United States of the supply of highly classifiedmilitary information to Australia. Shedden and others, including the Directorof Military Intelligence, Colonel C C F Spry, believed that past and servingofficers of the Department of External Affairs (DEA) were passing classifiedinformation to the Soviet Union through various CPA channels.82

In response to both domestic and foreign concern about alleged CPAsubversion, the Chilley Government was pressured into establishing theAustralian Security Intelligence Organization ("ASIO") in March 1949.

798081

82

Ibid 1350.Ibid 1406. .J P Buckley, "Sir Frederick Shedden: Defence Strategist, Administrator andPublic Servant", Defence Force Journal No 50, Febnuuy 1985, 21; W Perry, "SirFrederick Shedden (1893-1971)", Defence Force Journal No 83, July/August1990, 38.."With regard to the Top Secret investigation being conducted by the AustralianSecurity Service, some progress has been made. A tentative identification of theprincipal spy master oCthe net-work has been made, and his present activities areunder active investigation. As a result of this tentative identification, new lineshave been uncovered and the activities ofcertain other individuals who have beenthrown up by ground investigations are being covered": Memorandwn,"Australian Security Service-Note on Progress from 1 to 29 June 1949", 20 July1949. Australian Archives (ACT) ("AA (ACT)") eRS A5954, Sir FrederickShedden Papers ("Shedden Papers"), Box 1795.


However, in the short term this did not allay US Government fears. 83 In April1949 Chifley, anxious to overcome the impasse affecting AustralialUSrelations, sent Shedden to Washington and London in what proved to be, in thelife of the Chifley Government, an unsuccessful attempt to restore moreamicable relations between Canberra and Washington.

Before he left, Shedden consulted various influential Australians about hissecret mission. One of these was Dixon who was on close terms withUS diplomatic and military personnel stationed in Australia, includingUS Ambassador, Myron M Cowen. Cowen had arrived in Australia in 1948and by the time that he left less than a year later he had developed an abidingdislike of the Chifley Government and especially of H V Evatt. In. Australia,Cowen formed close associations with Chifley's conservative opponents andcontemptuously dismissed what he regarded as the Chifley Government'scomplacent response to the domestic Communist menace. Back in Washingtonearly in 1949 he told the Australian Ambassador, Norman Makin, that theWaterside Workers Federation dictated Australian foreign policy and that theinfluence of the Communists was widespread and far-reaching.84 Cowen'schief friends in Australia had been Keith Murdoch,85 Lloyd Dumas,86Essington Lewis,87 Thomas Playford,88 R G Casey,89 Edmund Herring,90 andDixon.

Dixon's dealings with Cowen touched a sensitive domestic political nervebecause of the strained relationship between Shedden's department and theDEA. Not surprisingly, Cowen's dislike of Evatt extended to the Secretary ofthe DEA, John Burton. In late 1948, in a masterpiece of under-statement,Dixon told Shedden that Cowen did not appear to have a very high opinion ofBurton or to place much confidence in what Burton said.91 Shedden was aware

83

84858687

88

89

90

91

F Cain, "Missiles and Mistrust: US Intelligence Responses to British andAustralian Missile Research" (1988) 3 Intelligence and National Security 5;F Cain, "An Aspect of Post-War Australian Relations with the United Kingdomand the United States: Missiles, Spies and Dishannony" (1989) 23 AustralianHistorical Studies 186; Com ParI Deb, 1948, Vol 199, 247'8-2530 (4 November1948).Shedden Papers, Box 1795.Keith Arthur Murdoch (1885-1952), journalist, editor, and newspaper proprietor.Lloyd Dumas (1891-1973), journalist and editor.Essington Lewis (1881-1961», mining engineer, industrialist, General Managerof the Broken Hill Proprietary Co Ltd (1921-1952), Director of Munitions (19401945).Thomas Playford (1896-1981 ) fanner, Paliamentarian, Premier of South Australia(1938-1965).Richard Gardiner Casey (1890-1976) engineer, intelligence officer, diplomat,parliamentarian and Governor-General ofAustralia (1965-1969).At the completion ofhis tenn in Australia, Ambassador Cowen paid a particularlyrevealing tribute to Herring (about whom more later in this article) in thefollowing way:"[I]t was you who gave me my frrst dinner at Melbourne at theMelbourne Club, and it was there through you that I met some' of the men ofMelbourne who have been most helpful to me during the time I have been here":Letter, Cowen to Herring, 9 March 1949, Herring Papers, MS 11355, AustralianManuscript Collection, La Trobe Library, State Library of Victoria ("HerringPapers"), Box 40.Shedden, Notes ofDiscussions, l-I November 1948. Shedden Papers, Box 848/4.

174 Federal Law Review [VOLUME 21 I

that Dixon corresponded with many people in Washington. On 1 April 1949,on the eve of Shedden's departure, Dixon told Shedden that the Americanswould gladly work with Menzies, if Labor were defeated in the forthcomingelection and that he had heard that the Americans would refuse any cooperation with Australia until after the election.92 This was a very revealingitem of intelligence, important enough for Shedden to record in hisconfidential records. There is nothing to suggest that Shedden relayed theinformation to Chifley since he reported to Chifley only details of his formalconsultations.93

At the same time Shedden also privately consulted Casey who was thenFederal President of the Liberal Party. Casey, who had been Dixon'spredecessor as Australian Minister in Washington was also a close friend of I

Dixon. Shedden was given to reminding people that he was the model head of 'a public service department, politically non-aligned and ready to servewhichever party was in power. However, his ease of access to the highest levelsof the Opposition parties may well have been a source of concern for Chifleyand Evatt, had they known about it. It was, of course, understandable thatShedden would want to have as much "inside information" as he could get hishands on before setting out on his vitally important mission. In this context, aswith the provision of Cowen's assessment of Burton, Dixon was an unusuallyhelpful source because of his two years as Australian Minister in Washingtonand his close contacts with highly placed people in Washington and USdiplomats in Australia.

92

93

Memorandum, "Notes of Private Discussions on the Restoration of the Flow of I

United States Classified Infonnation to Australia" (undated). Shedden Papers,Box 1795. Dixon's prediction was accurate. It was not lUltil January 1950, afterthe election of the Menzies Government, that the US Government reinstated theflow of highly classified military infonnation. The US Naval Attache in Australiain the period July 1947-September ]949, Commander Stephen Jurika, Jr, wasvery well connected in the Melbourne establishment and sent despatches fromMelbourne (where he was stationed) condemning the Australian Government's"complete submissiveness and supine surrender to Communist dictation":Intelligence Report, 4-S-48, 6 August 1948. Intelligence Division, Office of Chiefof Naval Operations, US Navy Department, Washington, DC. On 21 July 1949Sir Owen Dixon, in his capacity as President of the ESU, and Lady Dixon hosteda public luncheon in Melbourne as part of a round of functions to farewellCommander Jurika at the completion of his tour of duty in Melbourne: Age, 22July 1949. As Jurika's pungent despatches show, the United States Navy wasparticularly hostile to the Chifley Government. It is possible that Jurika was anadditional (local) source of Dixon's wtderstanding that reswnption of US c0

operation with Australia depended upon the outcome of the 1949 election. WhenShedden was in London in August 1949 he was told by MIS Director-General, SirPercy Sillitoe, that Jurika's superior, Admiral Inglis, considered that there couldbe no settlement while a Labor Government was in power as its members wereconsidered to be pro-Communist. Memorandum, "Notes ofPrivate Discussions onthe Restoration of the Flow of United States Classified Infonnation to Australia"(undated). Shedden Papers, Box 1795.See especially Shedden's detailed reports to 9hifley on his official discussions onhis 1949 trip. Shedden Papers, Box 1795.


99

9495969798

So far as it is possible to ascertain from available archival sources,94 Dixonseems to have kept his informal extra-judicial activities to a minimum and tohave dealt with inquirers and friends such as Boyce, Cowen, Menzies, Caseyand Shedden very discreetly. Unlike many of his judicial brethren, Dixonseems to have been quite unmoved by the anti-Communist hysteria of the time,even that expressed publicly by his wife.95 He dissented in both Burns vRans/ey96 and Sharkey v R,97 the two sedition prosecutions of high CPAofficials which came before the High Court in 1948 and 1949 and was part ofthe majority which decided in 1951 that the Communist Party Dissolution Act1950 was invalid.98

IdeologueJohn Greig Latham was born at Melbourne in 1877. He came from whatZelman Cowen has described as an austere and disciplined household and onethat was adversely affected by the 1890s depression.99 Latham was ascholarship boy who did well at the University of Melbourne and, after a slowstart, succeeded in practice at the Victoria Bar. He volunteered for militaryservice in 1914 and worked in naval intelligence rising to the rank ofLieutenant-Commander in the Royal Australian Navy by the end of the war.During his time as an intelligence officer he developed a strong distrust ofradical political movements. He was elected to the Commonwealth Parliamentin 1922 and, following the resignation of Prime Minister W M Hughes in1923, soon rose to prominence and power as one of Prime Minister S MBruce's circle, becoming Attorney-General of the Commonwealth in 1925.

One of Bruce's aims was to respond effectively to mounting industrialunrest and the emergence of the CPA. As Attorney-General, Latham wasresponsible for amendments to the Crimes Act in 1926 which were meant tosuppress the CPA as a revolutionary organisation. He told the House ofRepresentatives that

There is ... a small but growing body of men in Australia, who, in38ired byforeign ideals, deliberately seek the destruction ofAustralian society. 1

The writer sought but was unable to secure access to Dixon's papers.Herald, 22 April 1949.(1949) 79 CLR 101.(1949) 79 CLR 121.Australian Communist Party v Commonwealth (1951) 81 CLR 1 ("the CommunistParty Dissolution Act case"). See E McWhinney, "Judicial Positivism inAustralia: The Commwtist Party Case" (1953) 2 Am J ofComp L 36. Dixon keptup his interest in international affairs. In 1950 he acted as UN mediator in theKashmir dispute. He corresponded regularly with Shedden. The latter valuedDixon's opinions on defence and related matters of foreign policy and from timeto time lent Dixon secret material for comment. fu early 1952 Dixon told Sheddenthat he wished he could be of more assistance to Shedden "when you are so goodas to discuss your onerous problems with me": Letter, Shedden to Dixon, 4 April1952; Letter, Dixon to Shedden, 10 April 1952. Shedden Papers, Box 61/3.For details of Latham's career see ADB, Vol 10, 2-6; W Perry, "The Late Sir JohnLatham" (1964) 35 Victorian Historical Magazine 94; A D G Adam, "Sir JohnLatham - A Tribute" (1964) 38 ALl 188; Z Cowen, "Sir John Latham" (1964) 4MULR 431; Z Cowen, Sir John Latham and Other Papers (1965); G L Fricke,Judges ofthe High Court (1986) 134-142.

100 Com ParI Deb, 1926, Vol 112, 459-460 (28 January 1926).

176 Federal Law Review [VOLUlviE 21 I

According to Latham, the Communist menace was especially serious because :Australia was the fullest and freest democracy the world had ever known. Ithas been said ofLatham that he was obsessed by and loathed Communism. IOl

Latham became leader of the Opposition following the defeat of the Bruce !

Government in 1929 and, having stood aside to enable J. A. Lyons to become I

leader of the newly formed United Australia Partyt he again became AttorneyGeneral in 1932 after the conservatives defeated the Scullin Government. More 1

anti-Communist amendments to the Crimes Act followed. He retired from \politics in 1934 and returned to a very busy practice at the Victorian Bar. The I

following year he was appointed Chief Justice of the High Court of Australia.Between November 1940 and December 1941 he took leave from the court to I

act as Australia's first Minister to Japan. 102

Like Dixo~ Latham maintained his links with conservative politicians :after he had gone on to the bench. 103 Latham was much closer to the :conservative politicians than Dixon ever was. 104 He had no qualms about i

acting in a ~san way by bein& a confidential adviser to Menzies, Casey, .Harold Holt os and Earle Page. 1 As Chief Justice, at the end of his long :public career, he produced a detailed statement on left-wing political I

extremism in the form of a judicial nihil obstat for the Menzies Government's I

crusade against Communism. The 1949 federal election had been fought on the:domestic issues of economic regulation (particularly petrol rationing), socialistregimentation, and the Communist menace. Menzies promised that he would I

do what Chifley and the ALP were afraid or unwilling to do (and what Latham I

the politician had wanted but had failed to do) - smash the CPA.The Communist Party Dissolution Act 1950 ("the 1950 Act") came into I

operation on 20 October 1950. The validity of the 1950 Act was immediatelychallenged in a series of cases brought by the CPA, by some of its leading I

members and by unions controlled by the CPA or otherwise sympathetic to it.

101 C Lloyd, "Not Peace But a Sword! - The High Court Under J G Latham" (1987)11AdelLR 175.

102 Judiciary Act 1940.103 C Lloyd, supra n 101, 195-196. Lloyd notes that during the 1949 election

campaign Menzies sent Latham a copy of his policy speech and thanked Lathamfor his "contribution". Latham's biographer has observed: "... I suspect that it waspolitics and affairs rather than the law that lay deepest to his heart". Z Cowen,"Sir Jolm Latham" (1964) 4 MULR 431,432.

104 C Lloyd, supra n 101, 195. According to one contemporary source, Latham alsohad dealings with the Labor Government apart from those which concerned therwming of the High Court. On 29 August 1949 Latham had lunch with theNetherlands Minister in Canberra, P Teppema, during which Teppema told himof his troubles about Australian trade union boycotts on trade· with Indonesia.Latham then went to see Prime Minister Chifley and discussed Teppema'sproblems with Chifley and later reported to Teppema on the outcome of thosediscussions. Letter, Mrs P Teppema to Mr and Mrs R Hemblys-Scales, 30 August1949. National Library ofAustralia, Teppema-Delprat Papers, MS 7029, Box 15,Folder 71.

lOS Harold Edward Holt (1908-1967), lawyer, parliamentarian, Prime Minister ofAustralia (1966-1967).

106 Earle Grafton Page (1880-1961), surgeon, parliamentarian, Deputy PrimeMinister of Australia (1923-1929~ 1934-1939), Prime Minister of Australia(1939).


The Preamble to the 1950 Act stated in part that the CPA was a revolutionaryminority which used violence, fraud, sabotage, espionage and treasonable orsubversive means for the purpose of bringing about the overthrow ordislocation of the established system of government of Australia.

The existing public order provisions of the Commonwealth Crimes Act1914 and other legislation were wide enough to deal with the CPA if, in fact, itwas the active revolutionary conspiracy which Menzies said it was. However,by the time of the Communist Party Dissolution Act case, the only criminalcases brought against Communists in the period 1945-1950 were seditioncharges against CPA officials Gilbert Burns (1948), L L Sharkey and K MHealy (both 1949) and W F Burns (1950) and contempt of court chargesrelated to episodes of industrial disruption including the 1949 national coalstrike. Several factors existed which were conducive to the application ofcoercive measures against the CPA. These included the widespread extent ofanti-Communist agitation in Australia, intensive Commonwealth and Statesurveillance of the CPA and of its front organisations and sympathisers, thepolitical capital to be derived from projecting an image of getting tough withCommunism, and the willingness of both Labor and Liberal Governments toinstitute prosecutions for sedition (most, if not all, of them politically-inspired).There is thus every reason to suppose that, had the Chifley or MenziesGovernment's civilian and military advisers obtained admissible evidence ofCPA espionage or other offences against the state, appropriate criminal caseswould have been launched and prosecuted vigorously. 107 The 1950 Act had notthe slightest basis in constitutional necessity. It was equally clear that inwartime the Commonwealth had ample power to proscribe organisationswhose activities were inimical to the efficient prosecution of the war effort. TheCPA had been proscribed in this way in the period 1940 to December 1942.108

The Preamble to the 1950 Act was designed to do away with theinconvenient necessity of the Commonwealth proving any of the seriousaccusations levelled against the CPA, its satellite organisations, and theirmembers and sympathisers. The authors of the Preamble endeavoured, by therecital of a series of charges against the CPA, to establish conclusively theconstitutionality of the Act on the basis of the power of the CommonwealthParliament to make laws with respect to the defence of the Commonwealth.

107 An examination of the sedition cases can be found in L W Maher, supra n 64.Because the evidence was quite unreliable, no treason or espionage charges wereever laid. Menzies claimed in the Parliament that he could establish the truth ofeach of the accusatory recitals in the Preamble to the Communist PartyDissolution Act 1950~ Com ParI Deb, 1950, Vol 207, 1994 at 1998-2005 (27April 1950). The Solicitor-General of the Commonwealth, Professor K H Bailey,acknowledged privately that there was no evidence which would support treasonor espionage prosecutions. Together with the Chief Parliamentary Draftsman, J QEwens, and outside co\U1sel, including M V McInerney, KC of the Victorian Bar,Bailey worked on successive versions of the Preamble to the 1950 Act beforesettling the fmal version. AA (ACT) M1509/1 Attomey-Gene{a1's DepartmentCentral Office Solicitor-General's Office Subject Files Alphabetical Series(Classified), Item 7. For background on the Chifley Government's anti-espionageactivities, see L W Maher, "The Lapstone Experiment and the Beginnings ofASIO" Labour History, No 64, May 1993, 103.

108 National Security (Subversive Associations) Regulations, SR 1940, Nos 109and 130.


This was a technique which, in a time of ostensible peace, a majority of theHigh Court could not accept was justified by the defence power or any othersource of Commonwealth power. On 9 March 1951 the High Court handeddown its decision that the whole Act was invalid. 109 Latham was the soledissentient.

All constitutional cases which legitimate or invalidate a specific exercise oflegislative or executive power have a political dimension. Resolution of thedispute about the constitutionality of the 1950 Act reinforced this processbecause the Act was the chief manifestation of the right-wing politicalextremism of the time. The Preamble to the 1950 Act invited the High Court toalign itself with a partisan movement by approving the constitutional fictionthat Australia was at war with the worldwide Communist movement of whichthe CPA was seen by the Menzies Government as an integral part. In theresult, the High Court, save for Latham, wisely avoided falling into the trap ofsuccumbing to the political bait offered by Menzies. IIO

Latham, protesting far too much, denied that his dissenting judgment wasin the slightest degree political in character. The Court should, he said, haveno political opinions. The governing questions in relation to defence and theprotection of constitutional government were, according to Latham, questionsof policy with which a court has no concern. III Latham's dissent has beenvariously described as "almost incredulous",112 "forceful",113 and "rathertired". 114 Most commentators see in it no more than a deferential approach tothe power of the Commonwealth Parliament to legislate for the defence of theCommonwealth.

If the core issue had been anything other than the immediate threat said tobe posed by Communism to the survival of the Commonwealth, it would beeasier to conclude that Latham was true to his claim that the Court should haveno political opinions. He had, after all, dissented, in part, in the BankNationalisation case. IIS However, Latham's dissent in the Communist PartyDissolution Act case is quite different. In both its structure and execution, itdirectly reflects the political rhetoric which Menzies had been using steadilysince early 1948. It is this writer's view that this is no mere coincidence. Thisis not to say that Latham deliberately repudiated his judicial oath. It is,however, contended that Latham's willingness to defer to the Parliament onthis occasion only makes sense when it is viewed in the context of Latham'slong-held set of uncompromising anti-Communist beliefs and his antiCommunist activities prior to his appointment as Chief Justice.

The principal stylistic technique employed by Latham in his dissent is theposing ofvarious dichotomies. This reflects much of the political extremism of

109 Australian Communist Party v Commonwealth (1951) 83 CLR 1.110 G Winterton, "The Significance of the Communist Parly Case" (1992) 18 MUIR

630.III In his excellent book, The Politics ofthe High Court (1987) 204, Brian Galligan

appears to accept literally Latham's statement that his is a legalist approach freeofpolitics.

112 Z Cowen, Sir John Latham and Other Papers (1965) 43.113 B Galligan, Politics ofthe High Court (1987) 204.114 G Winterton, supra n 110.liS Bank ofNew South Wales v Commonwealth (1948) 76 CLR 1.


the time and the division of so much of the world into two diametricallyopposed camps. For Latham all the relevant constitutional issues in the casecould be posed in terms of self-evidently clear political choices. In essence, thesolutions available to the Commonwealth Government are described byLatham in terms of choices between action and inaction, between right andwrong, and between subversion or survival of the Commonwealth. In everycase, therefore, the choice was unproblematical because there was and couldnot possibly be any middle ground. According to Latham, the 1950 Act wasvalid because the Government had to be absolutely free to make such obviouschoices if the Commonwealth was to survive.

(1) The ''for or against" Communism dichotomy

Latham analysed the defence power in terms of a governing objective ofnational defence policy.

What are to be regarded as dangers to be guarded against? If the national policyaims at, for example, an alliance with Russia, the identification of the dangersagainst which legislation should be directed will be entirely different from theidentification of such dangers if policy is directed to the creation ordevelopment of friendship with certain other countries. If the policy is forCommunism, there will be one complex of real or apprehended dangers. If thepolicy is against Communism, there li1ill be a completely different complex ofsuch dangers. Thus the acceptance ofsome national objective is the governingconsideration in determining against what dangers the Commonwealth shouldbe guarded by the exercise ofone or both of the legislative powers now underconsideration ... the most important question in these cases is whether theParliament of the Commonwealth, responsible to the people, has the decisivepower to determine whether Australia is for Communism or againstCommunism, and to legislate in accordance with its decision, or whether it cando so only ifa court agrees with its decision. 116 '

Elsewhere in his judgment Latham varies the dichotomy by posing the choiceas one between a policY of "fight" or "not fight". 117 This dichotomy was centralto the anti-Communist cause at the time.

From early 1948 onwards the Liberal and Country Parties and theirsupporting organisations had stepped up their emphasis on the claim that,contrary to Chifley's opinion, Communism was not a genuine body of politicalbeliefs. For the conservatives, Communism was an inherently subversivemovement and the CPA was a treasonable enterprise masquerading as apolitical party. Throughout 1949 the Opposition parties together withsupporting extremist organisations like the Australian Constitutional Leagueand the League of Rights used up extensive newspaper space withadvertisement"s claiming that the Chifley Government was proceeding along asocialist path to a soviet state and that only a conservative government wouldbe opposed to the Communist menace. On 2 May 1949 at Geelong, Victoria,Menzies exemplified the "for or against" theme when he stated thatCommunism was high treason and that Australia faced the prospect of asocialist state.

The "for or against Communism" stance was rightly criticiSed by Chifleyand others in the ALP as a gross oversimplification. They argued that, if

116 (1951) 83 CLR 1, 142-143 (italics added).117 Ibid 145. --


Communism was a menace, it was necessary to gauge the extent of the menaceand act in a proportionate way. Communism was not a threat to nationalsecurity simply because its strident propaganda messages and radical politicalobjectives were objectionable to a majority of people. A proportionate responseto "the Communist menace" need not require the outlawing of the CPA. Infact, the Chifley Government had impressive anti-Communist credentials.From early 1947 it had acted where necessary to curb the power and influenceof the CPA. Then, in mid-1949, it had been confronted with a grave industrialdispute in the coal industry, led (or at the very least inspired) by the CPA, andwhich was, according to the anti-Communist forces, a part of the CPA's plan toprecipitate an immediate revolutionary situation in Australia. Chifley hadsteadfastly resisted constant pressure on his government, some of it originatingwithin the right wing of the industrial movement, for the outlawing of theCPA. Chifley had repeatedly stated that existing laws or, as happened in the1949 Coal Strike, ad hoc legislative measures, were all that was needed to dealeffectively with Communist disruption of industry.

Latham's dichotomy was fallacious. It utterly ignored what was happeningin the real world. In fact, the political controversy in 1948/1949 and 1950 wasnot about the main political parties being either for or against Communism.The ALP, along with an overwhelming majority of the Australian population,was implaccably opposed to the CPA. The real choice was between aproportionate response to whatever menace the CPA presented and a repressiveresponse.

(2) The law and national security policy dichotomy

Latham was adamant that a court could not expect to examine the factual basesupon which decisions were made concerning national defence policy. Lathamused a subsidiary facts/opinion dichotomy here. His basic contention was thatthe law was concerned with facts and with testing factual allegations. Nationalsecurity decision-making, on the other hand, was essentially concerned withopinion and judgment and was not susceptible to or appropriate for judicialdecision-making..

The responsible authorities, in making up their minds upon ... matters[affecting the consideration of defence policy], will act upon diplomatic reports,intelligence reports from many coWltries, security reports, rumour, suspicionupon much infonnation which is necessarily secret - and upon other materialwhich is highly relevant but which could not possibly be proved or used in anyway in accordance with legal rules of evidence. No Government could producesuch material in a COurt. I I g

It would be expecting too much of Latham to believe that his extensiveexperience as an intelligence officer, diplomat, parliamentarian, and AttorneyGeneral did not play a part in compelling him to this conclusion. But thisdichotomy was also fallacious. It assumed, falsely, that serious criminaloffences relating to defence or national security could rarely, if ever, beprosecuted. The criminal law bristled with such offences from high treason ondown. Latham himself had been responsible as Attorney-General for adding tothe armoury of such offences. Latham's approach reveals not the slightestregard for the profound issues of freedom of thought, speech, association and

118 (1951) 83 CLR 1, 144.


assembly that were implicated in the 1950 Act. Where basic civil liberties arethreatened, the use of mmour, suspicion, and highly generalised views aboutnational morale, national morality, hopes and fears, emotions andapprehensions should cause a civilised society to recognise that it is moreimportant to retain judicial review rather than to discard it. Yet Latham wasquite content to approve a regime which would have allowed these freedoms tobe suppressed on the bases of prejudice and rumour.

Latham's claim that a government could not possibly test national securitymaterial in public was contradicted by the record of the Victorian Government,which in 1949 had established a Royal Commission to inquire into the aimsand objectives of the CPA. The Report of the Royal Commission delivered inearly 1950 turned up very little that was not already known about the CPA.Latham's judgment ignores the Report. Despite all the efforts of the VictorianGovernment to lay a foundation for the banning of the CPA, there was noevidence that the CPA was actively fomenting insurrection or revolution. 119 In1950 the Commonwealth Parliament had no more than the Government'sassertions embodied in the Preamble that the CPA was, in fact, an activetreasonable conspiracy.

Latham's position resolves itself into two contradictory claims. The first isthat according unquestioning judicial deference to the judgment of theexecutive and the parliament does not involve the court adopting a politicalposition. The second is that if a court were to exercise judgment by testing theveracity of the allegations contained in the Preamble to the Act or by otherwisequestioning the constitutional efficacy of the Preamble, the court would bedealing in policy and not law.

Let it be supposed that the Court found that some of the recitals were true, andthat others of them were false. What would be the position then? Obviously onthe argument of the plaintiffs the Court would have to detennine whetherenough facts were left to constitute a danger which called the defence powerint<;> operation. The decision upon such a question would inevitably andnecessarily depend upon the political opinion of the judge as to whetherCommunism was a good thing or a bad thing - whether what was provedshowed a real danger to the people. 120

This would be wrong, according to Latham, because the decision of the courtshould be the same whether the member of the court believed in Communismor does not believe in Communism. It is difficult to accept that Latham reallymeant this. The conclusion is a non sequitor. Apart from the bizarredichotomous form in which Latham chose to express it, his conclusioncompletely misstates what the judicial function involves. Personal judicialopinion would be irrelevant to the determination of the mixed question of lawand fact involved in testing the claims in the Preamble to the 1950 Act.

(3) The internal/external attack dichotomy

Latham's more specific defence of the Act relies in part on a third dichotomyby which, again, he supposedly uses a purely legal justification.

119 Report of the Royal Commission Inquiring into the Origins, Aims, Objects andFoods ofthe Communist Party in Victoria and Other Related Matters (1950). Vic

I 120 Pari Deb, 1950, Vol 232, 24 (22 June 1950). See S Ricketson, supra n 27.(1951) 83 CLR 1, 148 (italics added).


No distinction can be drawn between defence against external attack anddefence against internal attack, which is more insidious than direct externalattack and in some respects, because it is often secret, more difficult to combat.If Parliament decides that there is an internal danger sufficiently serious tojustify legislation, in my opinion the Court has no authority to overruleParliament upon the ground that Parliament has made a mistake as to "thefacts", or that, even if Parliament is right as to the facts, the facts show no realdanger for Australia. The Government is responsible to Parliament andParliament is responsible to the people for such decisions. If Parliamentdisagrees with the Govenunent, or the people disagree with either theGovernment or the Parliament, our system of government provides a politicalmeans of changing the policy, The courts have nothing whatever to do withsuch decisions.121

Here again, to suppose that Latham's deferential approach in matters ofinternal security was entirely uninfluenced by and divorced from more thanthirty years of concern by him about the dire threat posed by the subversiveactivities of the CPA, from his continuing interest in high matters of state, andfrom his friendships with the leaders of the burgeoning anti-Communistcrusade would require the complete suspension of disbelief.

In the five years since the end of the Second World War conservativepoliticians in Australia (and elements within the predominantly Catholic rightwing of the political and industrial branches of the ALP) had harped on thatpart of the claim in the Preamble to the 1950 Act that the CPA was an integralpart of the world Communist revolutionary movement engaged in espionageand sabotage and in activities or operations of a treasonable or subversivenature.

The Commonwealth was armed with an impressive array of legislative andexecutive powers with which to protect the domestic tranquility against anythreat posed by the CPA. The Chifley Government had adopted andimplemented a vigorous anti-Communist plan of action. Latham's judgmentignores all this. Here is Latham the Cold Warrior unquestioningly endorsingthe executive's claim that in 1950 Australia was in dire peril:

It is for the Government and Parliament to detennine that question, and theyhave already detennined it. Whether they are right or wrong is 8 politicalmatter upon which the electors, and not any court, can pass judgment. The onlyquestion for a court, therefore, is whether the provisions of the Act have a realconnection with the activities and possibilities which Parliament has said in itsopinion do exist and do create a danger to Australia. 122

This is redolent of Pilate's action in washing his hands on Good Friday.Latham's "real connection" test for constitutionality is no test at all since, inthe circumstances of Latham's unquestioning acceptance of the Government'slegislative portrayal of the dire threat to the Commonwealth presented by theCPA, almost any conceivable protective measure, short of torture or executionwithout trial, could have a "real connection" with the peril.

(4) The facts and "notorious"facts dichotomy

One technique employed by the Chilley Government in the 1948/1949 seditioncases was reliance on so-called notorious facts about the prevailing state of

121 Ibid 152.122 Ibid 154.


124

international relations. In particular, it was argued, mostly with success, thatcourts could take judicial notice of the division of the world into two campsand the resulting Cold War. This technique, which enabled theCommonwealth Government to stigmatise as disloyal and subversive allexpressions of support or sympathy for the Soviet Union, was used to greateffect in the sedition trial ofL L Sharkey in Sydney on 20 June 1949. WilliamDovey, KC opening the prosecution case against Sharkey told the jury that itwas a notorious fact that there were marked differences between the westernpowers and the Soviet Union and that Communists had feelings towards theSoviet Union which were not shared by the majority of AustiaIians. 123

Latham's support for the 1950 Act, the centrepiece of Menzies' remorselessanti-Communist policy, is exemplified in his attitude to the prevailing"notorious" world situation.

The plaintiffs on many occasions referred to the old saying which is quoted inChitty on The Prerogatives of the Crown (1820), p.43 - ubi bellum non estpax est [Where there is not war there is peace]. In my opinion the events ofrecent years require a reconsideration of this maxim. Actual fighting in theSecond World War ended in 1945, but only few peace treaties have been made.The Court may, I think, allow itself to be sufficiently infonned of affairs to beaware that any peace which now exists is uneasy and is considered by manyinfonned people to be very precarious, and that many of the nations of theworld (whether rightly or wrongly) are highly apprehensive. To say that thepresent condition of the world is one of "peace" may not unfairly be describedas an unreal application of what has become an outmoded category. The phrasesnow used are "incidents", "affairs", "police action", "cold war". TheGovernment and Parliament do not regard the present situation as one ofperfect peace and settled security, and they know more about it than the courtscan possibly know as a result of considering legally admissible evidence. 124

It is more than a little ironical that Latham who was convinced that claimsabout national security could rarely, if ever, be established by admissibleevidence in judicial proceedings was no less convinced that in a criminal trialother prosecution allegations need not be subjected to any formal proofs at all.

Thus was the task of the prosecutor made easier and the ability of anaccused person to defend a charge seriously hampered. The concept of"notorious" facts in the context of the sedition cases and the 1950 Act wasimprecise and dangerous~ It was thoroughly infected with the partisan politicsof the time. Here it was used by Latham to give legitimacy to the Government'spolicy that, as the CPA was simply an instrument of the Kremlin, it should bedealt with as if Australia was actually at war and as if the CPA and itsadherents were actually engaged in hostile actions against the Commonwealth.

123 AA (ACT), CRS A432 Attomey-General's Department. Correspondence Files,Annual Single Number Series 1929- Item, 1949/308, L L Sharkey; AA (NSW),SP186, Office of the Deputy Crown Solicitor, Sydney. Common Law Files 19471953, Item 55215, L Sharkey. In his sedition trial in Perth on 1 November 1949,K M Healy, who represented himself, directly challenged the "notorious facts"stratagem by urging the trial judge to rule that if the prosection wanted to rely onnotorious facts about international relations it should call External AffairsMinister H V Evatt to prove those facts: Australian Archives (WA), PP3S2/1,Deputy Commonwealth Crown Solicitor (WA), Item WA 6164, K M Healy.(1951) 83 CLR 1, 155-156.


Cold WarriorEdmund Francis Herring was born at Maryborough, Victoria in 1892. 125 Hewas selected as Victoria's Rhodes Scholar for 1912. His military bias andprowess manifested themselves early in life. At Oxford in 1913 he joined theuniversity Officers Training Corps. He served with distinction as an artilleryofficer in a British Army Unit in the First World War and won the MilitaryCross at Doiran in the Balkans in May 1917. He became a Major at thecomparatively young age of 26. After the war he completed his law studies atOxford and returned to Melbourne where, in 1921, he embarked on what soonproved to be a higliIy successful career as a barrister. At the same time Herringcontinued his military career. In 1923, after a short time in the AustralianArmy Legal Corps, he was given command of the 44th Battery, 22nd Brigade,Australian Field Artillery. In 1929 he was promoted Commanding Officer ofthe Second Field Artillery Brigade.

Like most of his legal and military colleagues, Herring was a committedconservative and, as such, was deeply concerned by the implications of the

.Bolshevik Revolution. In 1918 the young Lieutenant Herring had urged hismen to "tread on the seeds of Bolshevism". 126 In the 1920s he was involved inthe clandestine para-military organisation known as the White Army whichhad been formed to combat the threat said to be posed by rising working classmilitancy in Australia and especially by the emerging CPA.127 During the1930s Herring rose to become a leader of the Victorian Bar and was also activein the Young Nationalist Organisation. In 1935 he unsuccessfully sought preselection as the United Australia Party candidate for election to the VictorianParliament.

At the beginning of the Second World War Herring returned to activeservice as Colonel Commanding Royal Australian Artillery. He again saw verydistinguished service, this time in North Africa, Greece, the Middle East andthe Pacific. In 1942 he was appointed General Officer Commanding the FirstAustralian Army Corps and New Guinea Force. On 10 February 1944,Lieutenant-General Herring was sworn in as Chief Justice of Victoria. Hisactive selVice ended that day when he transferred to the Reserve of Officerswith the rank of Lieutenant-General. However, Herring did not retreat monklike into the judicial cloister. As a soldier he had enjoyed a high public profile.He believed deeply that military service was a matter of high civic duty andwas convinced that his continuing military activities complemented his judicialresponsibilities. As Chief Justice (and from. 30 July 1945 also as LieutenantGovernor of Victoria) he engaged in a wide range Qf public activities. Hewould, with understandable pride, wear his military uniform in public onceremonial occasions such as when leading the Victory Parade throughMelbourne on 24 August 1945 or in accompanying the Queen during the royalvisit to Australia in 1954. He pursued his military interests keenly. Like Dixon

125 For accounts of Herring's life see S Sayers, Ned Herring (1980); C M H Clark,A History ofAustralia, (1987) Vol VI, 150, 151, 170; C H Francis, Obituary,Victorian Bar News, Autumn 1982, 6; J P Buckley, "Great Soldier-GreatChristian", Defence Force Journal, No 34, May/Jooe 1982, S.

126 S Sayers, supra n 125, 68.127 M Cathcart, Defending the National Tuckshop: Australias Secret Army Intrigue

of 1931 (1988); A Moore, The Secret Anny and the Premier: ParamilitaryOrganizations in New South Wales 1930-1932 (1989).


and other highly placed lawyers and judges in Melbourne's establishmentcircles, he was a close friend and confidant of Shedden. In the period 19451950 and later, Shedden regularly consulted Herring on a confidential basisabout a broad range of high level defence and military issues. 128

In his time as Chief Justice of Victoria Herring was a frequent publicspeaker and did not shy away from sensitive issues, although he often spoke ina generalised and aesopian way calling for improvement in civic pride andmore vigilance in the face of anti-social activities. A recurrent theme in hisspeeches was that the future of mankind was in the balance. In February 1948Herring made front-page news when he told a religious gathering inMelbourne that, at a time when civilisation had never been in greater danger,there were in Australia people who were prepared to sit back while civilisationdied. Australians should be grateful for living in a free society and shouldstrive to maintain it instead of engaging in sectional strife:

Before our eyes the free society of Czechoslovakia [is] being submerged. If afree society [is] to continue in Australia we [will] have to respect the individualand the rights of the individual. 129

The emergence of the Cold War, the growing prominence of the issue ofalleged Communist subversion in Australia, Herring's lifelong aversion forpolitical radicalism, his abiding Christian convictions, his authoritarianism,and his readiness to render public service outside the duties of his judicialoffice, explain his willingness to take on the role of Cold Warrior and toparticipate vigorously in the intensifying anti-Communist crusade. ForHerring, no less than for Latham, the Cold War was every bit as perilous forAustralia as if the nation was engaged in a full-scale shooting war. Herring'swillingness to support the anti-Communist cause extended to involving theSupreme Court of Victoria both directly and indirectly in the crusade.

Since the 1920s Victoria's' judges, in contrast to their interstate brethren,had taken a strict view of the independence of the judiciary so far as itimpinged on the question of judges carrying out extra-judicial functions. Inparticular they were unwilling, as a matter of policy, to make themselvesavailable to act as Royal Commissioners. 130 In 1949, however, the VictorianGovernment led by Thomas Tuke Hollway managed to persuade Herring toprovide one of its judges, Sir Charles Lowe, yet another close friend ofShedden, to conduct a Royal Commission into the origins, aims, objects andfunds of the CPA in Victoria. 131 The justification for this departure from thejudicial practice of a generation was the bold claim that the questions to beinvestigated were questions of fact of a purely non-political character. It seemsthat when the Government's plan was publicised in advance of the judges being

128 Shedden Papers, Box 63/1.129 Argus, 26 February 1948. Elsewhere on the front page of the same issue of the

newspaper readers were told that a coup d'etat had resulted in a completeCommunist grip on Czechoslovakia.

130 M V McInerney and G J Moloney, Judges as Royal CQmmissioners andChairmen o/Non-Judicial Tribunals (1985) 10-19; G Winterton, supra, n 19.

131 This followed a series of sensational nationally sydicated newspaper articles byCecil Sharpley who had been a member of the CPA in Victoria for many years.See eg Herald, 15 April 1949. See V Rastrick, "The Victorian Royal Commissionon Communism, 1949-50: A Study of Anti-Communism in Australia". MAThesis, 1973, ANU.


consulted even Herring could see that the plan was diametrically opposed tothe Victorian judges' policy of opposition to their conducting public inquiries.

Herring told the judges that he had raised the matter with the AttorneyGeneral of Victoria and had warned him that no judge would be available. Itwas then put to him by the Attorney-General that the proposed inquiryinvolved matters of public necessity and national importance. According to theAttorney-General the matters seemed to go to the root of representativegovernment and democratic institutions, and even to threaten the security andexistence of the State itself and were not a matter of politics. Herring wasconvinced.J32

By 1949 the CPA's right to continue to exist as a legitimate political partywas one of the burning national political issues. The Victorian Governmentwas confident that an inquiry would expose the subversive nature of the CPA.It clearly expected Lowe to bring in a report which supported the conservativeparties' oft-repeated claim that Communism was treason. In April 1948 theVictorian Government had prepared a Subversive Associations Bill underwhich membership of the CPA would have been a criminal offence and other"subversive" activities would also have been prohibited. One clause of the Billprovided that persons convicted of specified offences against the proposed Actcould be deemed outlaws, arrested without warrant and detained without trial.

The main motivation of the Hollway Government was to gain a substantialpolitical advantage over the ALP. On 10 May 1949 Hollway told the VictorianParliament when introducing legislation establishing the Royal Commissionthat Communism threatened the very basis of society. Incongruously, he askedthe Legislative Assembly to approach the Royal Commission proposal"dispassionately". He was sure the Royal Commission would produce materialessential to any further treatment of the problem and of great value to anyCommonwealth administration proposing strenuous action againstCommunism. 133 The fact that this pre-supposed specific findings by the RoyalCommission seems not to have been of much concern at the time. At a timewhen the ALP had genuine socialist credentials, part of the anti-Communistcrusade involved equating all forms of socialism with Communism. There wasa very palpable sense in which anti-Communism was at the heart of Australianparty politics.

In agreeing to the Government's request that a judge be temporarilyreleased from his judicial duties to conduct the Royal Commission, Herringsaw a critical role for the Supreme Court to play in a unified response to theCommunist menace. In July 1949 Herring told the annual conference of theVictorian RSL that the national coal strike which had started on 16 June 1949,was a wicked business, of satisfaction only to those whose aim was to causedisruption, but that the strike was playing a real part in unmasking theCommunist to the man in the street who was now beginning to realise itsworldwide implications.

132 Vic ParI Deb, 1949, Vol 229, 936-938 (11 May 1949). G L Fricke, UnpublishedManuscript. I am indebted to His Honour Judge G L Fricke of the County Courtof Victoria for giving me access to his work on Sir John Barry.

133 Royal Commission (Communist Party) Act 1949. Vic ParI Deb, 1949, Vol 229,836 (10 May 1949).


As soldiers we dealt with a foreign foe in the war. We will have to do the samething again by dealing with the foreign theory in peace. We are either for oragainst. We have to be prepared to do a bit ofacting as well as talking. 134

Herring, like Latham and their close associates in the conservative parties,had no doubt that being "either for or against" Communism meant thatHerring was prepared to do his own "bit of acting". In this regard, hiscontinuing military service was given further prominence by his appointmentas Commonwealth Director-General of Recruiting in July 1950 soon afterNorth Korean troofS crossed the 38th parallel into South Korea precipitatingthe Korean War. 13 The Australian Government promptly committed troops tothe United Nations action in Korea. Herring took leave as Chief Justice untilthe end of August 1951.

To some extent, the ignominious defeat of the coal strike, the success of theCommunist revolution in China in 1949, and the outbreak of the Korean Warmarked a shift of attention away from domestic perils towards more emphasison the external threat which Communism posed to Australia. However, theMenzies Government's determination to outlaw the CPA reflected an abidingconcern of conservatives that, in the event of world war, which Menziesasserted more than once was imminent, the CPA would act as a fIfth column.Herring took on the army recruiting job as a favour to Menzies because hewanted the whole nation to realise the hazardous position facing Australia andthe pressing need for full military preparedness. Herring described the peril incrude racist terms. There were revolutionary changes to the North and the Eastand "without some radical alteration in the outlook of Australians to defence,there appears to be no chance of the survival of the White People in Australiaagainst the millions of people who must have aspirations towards Australianterritory". Australia was facing "racial suicide". The enemy was internationalCommunism directed from Russia. 136

Herring's time as Director-General of Recruiting was notable for thevigorous efforts which he devoted to his objective, but the result in terms ofenlistments for the regular army and the citizen military forces was far fromgratifying for him. Herring was troubled by what he perceived as Australians'lack of patriotism and morale and the increasing materialism and complacencyof Australian society. He stressed the conservative and authoritarian themeswhich had typified his many public speeches in the previous seven years.Australians needed to embrace hard work, unselfishness, and high moral

134 Speech to Victorian R S L, Herring Papers, Box 37. P Deery (ed), Labor inConflict: The 1949 Coal Strike (1978). In early 1950 the Victorian CPAnewspaper, the Guardian, attacked the appointment to the Supreme Court ofVictoria of R R Sholl, KC, who had been leading counsel assisting the VictorianRoyal Commission Inquiring into the CPA. The article under the headline "MrJustice Sholl: Die-Hard Tory" contained the following attack on Herring: "His[Sholl's] daily associates have been men of the same kind - one of his chiefbackers in securing promotion to the bench was Chief Justi~ Sir E Herring,whose reactionary utterances are well-known". The article gave rise tounsuccessful contempt of court proceedings against the publisher: R v Brett[1950] VLR 226. See also R v Arrowsmith [1950] VLR 78.

135 R O'Neill, Australia in the Korean War 1950-1953 (1981) Vol 1, 253.136 E F Herring, Notes on Australian Defence, 23 February 1851, 10-11 ~ E F Herring,

Australia's Defence Problems, 21 February 1951, Herring Papers, Box 27.

188 Federal lAw Review [VOLUME 21

standards, to go back to church, and be responsive to those who would helpthem think straight. 137 The internal Communist menace now consisted of acampaign of economic sabotage and an insidious attack on the hearts andminds of Australians. 138

In early 1951 Herring spoke in the course of his recmiting work to theVictorian Chamber of Commerce, as a result of which the Chamber establisheda committee to examine how national morale might be improved. Some weekslater, Menzies introduced Herring to one of his advisers, Paul McGuire. 139

This meeting resulted in the nationwide launch by Herring on RemembranceDay 1951, after his return to the office of Chief Justice, of The Call to theNation. It was no coincidence that in September and October 1950 Menzieshad presented four national radio broadcasts on the theme "The Defence Callto the Nation". 140

From what is known about the hatching of the plan for issuing The Call, itappears that Menzies wanted to bolster his intensely partisan struggle againstthe Communist menace with an appeal which could be described as untaintedby party politics. In a society still overawed by the authority of the law and thechurch, judges and clergymen were ideal recruits for Menzies. It was a shrewdand opportunistic tactic which amply demonstrates the single-mindeddetermination of Menzies to rid Australia of the scourge of Communism and toexploit to its fullest the electoral potential of anti-Communism in a contextwhere it was a highly divisive issue within the ALP. Although the signatoriesto The Call were judges and clergymen, the organising force was made up ofbusinessmen and lawyers, including prominent members or supporters of theLiberal Party, allIed with military precision by Herring.

Despite later efforts designed to dress up The Call as an urgent nonpolitical appeal to the fine civic instincts of decent Australians, it is clearbeyond all doubt that Herring was at the centre of a conservative campaignhatched in secret and deliberately aimed at whipping up widespreadcommunity measures to combat the supposed evils of Communism. From thebeginning of the organisational effort that Herring inspired and directed, it wasemphasised that Australia was faced with a crisis. It was necessary to be readyfor a Communist attack that would be launched internally and externally.Internally it would consist of Kremlin-directed sabotage and related guerillaactivities and an "attack on our hearts and minds - loyalty, freedom,religion. "141 There were two sides to the campaign. The positive side was "thebuilding anew of our moral fibre". The negative side was "combattingCommunism in our midst".142

137 Speech Notes, Chamber ofManufactures, 18 JW1e 1951, Herring Papers, Box 27.138 Speech Notes, Commonwealth Loocheon, 10 April 1951, Herring Papers, Box 27.139 It has been said of McGuire that he "was one of the very few Australians of the

mid-1950s who was genuinely in the two social worlds ... [of] Establishmentconservatism and Irish-Australian Catholicism": R Manne, The Petrov Affair:Politics and Espionage (1987) 243.

140 S Sayers, supra n 125) 309. I have relied on the texts of the Menzies broadcastslocated in AA (VIC) MP 1723/19/10, Item A 53.

141 Handwritten Notes (oodatOO) and Typescript Notes for Speech by DirectorGeneral (Breakfast), 31 May 1951, Herring Papers, Box 27.

142 Ibid.


Arrangements for The Call were significantly advanced at a secret meetingat the Hotel Windsor in Melbourne on 31 May 1951, to which a select group ofinfluential men in business and the professions and the Liberal Party wasinvited. Herring and McGuire addressed the gathering telling them thatAustralia was imperilled by Communist expansionism and that Menzies hadendorsed the proposal for The Call. Herring then dramatically introducedMenzies whose presence in the hotel precincts had until then itself been keptsecret from the audience. 143 There were three further meetings in Melbournein the next eight days. At the meeting held on 21 May Herring stressed "theneed to avoid duplication of the work of other organisations, such as [the]IPA ... [and] that where collaboration was appropriate it should be sought". 144

Herring assiduously promoted arrangements for The Call in his capacity asDirector-General of Recruiting and after he returned to his duties as ChiefJustice on 1 September 1951. It seems that leadership of The Call was tooimportant a task to hand over to one of his lieutenants. Herring's commitmentcan be gauged from a letter he sent to his front man in Adelaide following ameeting in Melbourne:

In the Eastern States there is now no doubt in the minds of those to whom we"- have put the facts, that a national effort is required comparable to the darkest

days ofwar. 145

More secret meetings followed. At a meeting in Sydney on 8 August 1951those present included District Court Judge Adrian Curlewis who was recordedas being there in his capacity as President of the Surf Life Saving Associationof Australia. The meetings were conducted with a measure of militaryefficiency and were replete with dramatic appeals to the need for solidarity.

The failure of the Constitution Alteration (powers to Deal withCommunists and Communism) on 22 September 1951 was the second majordisappointment to Menzies and his allies in the anti-Communist coalition. Thethird blow was the inability of the Commonwealth Government to persuade theStates to refer to the Commonwealth power to deal with Communism. Butthese setbacks did not deter the various forces in that coalition from vigorouspursuit of anti-Communist objectives. All that changed were the tactics.

There was, however, resistance among the proposed signatories whomHerring approached. The Chief Justice of Tasmania, Sir John Morris, wastroubled by the clear political overtones of the whole exercise. Of the first draftof The Call that was sent to him, Morris told Herring that, whilst thesentiments expressed were unexceptionable, his feeling was that the ChiefJustices ought not to sign it because it would undermine public confidence inthe judiciary. According to Morris, this was not the first time that judgesthought "the country was going to the dogs" and it would not be the last. In thepast judges had not seen fit to denounce evil or to exhort the populace torespond to some perceived menace. To do so at this stage would be unwise,since there seemed to him to be no justification for unprecedented measures:

I think it may well subject us to criticism. The fact that we depart from ourtraditional role gives it significance. When we speak of defending the countryagainst "evil dangers" what is the reaction going to be? I can hear the critics

143 S Sayers, supra n 125.144 Notes for Breakfast, 8 June 1951, Herring Papers, Box 27.145 Letter, Herring to K A Willis, 9 July 1951, Herring Papers, Box 27.

190 Federal Law Review [VOLUME2~

saying that these judges feel so strongly about Communism that they have putoff the habit of years to have a hit at it, they, the people who at any time mighthave to ftmction judicially on ComnuU1ism or conunWlists. I think it would bewiser not to sign it. 146

It is a mark ofHerring's determination that he was able to convince Morris thathis doubts were misplaced.

Despite the secrecy which had surrounded the development of The Call,word of the behind-the-scenes manoeuvring leaked out and on 31 October1951 Senator W P Ashley (ALP, New South Wales) told the Senate that theIPA and the Junior Chamber of Commerce in Melbourne had becomeassociated with McGuire in preparing The Call. Ashley alleged that there wasa secret movement at work and that if the organisation was to mimic the rightwing extremism of the New Guard movement of the 1930s,147 the Governmentshould act against it just as it would act against the Communists. 148

On 8 November Ashley again pressed the Government for an explanationof The Call. If, as The Call apparently asserted, Australia was in grave dangerat home and abroad, why was the Australian Government not issuing its ownstatement? Ashley wanted to know if ASIO had informed the Government ofwhat transpired at the secret meetings organised by McGuire and addressed byHerring in Adelaide, Melbourne and Sydney. 149

The Call was launched by Herring on 11 November 1951. It was givennationwide radio and newspaper coverage. In substance it was a challenge toAustralians in every walk of life to face up to their moral responsibilities ascitizens in a free democracy. This was the positive side. It challenged allAustralians to make a new effort to advance moral standards. The Call did notmention the CPA or Communism, but there could be no doubt that thenegative side of the campaign was just as important. The need for moral upliftwhich The Call stressed was the external and internal Communist menace.

Australia is in danger. We are in danger from abroad. We are in danger athome. We are in danger from moral and intellectual apathy, from the mortalenemies ofmankind which sap the will and darken the understanding and breedevil dissension. Unless these are withstood, we shall lack moral strength andmoral Wlity sufficient to save our country and our liberties. I soHerring had succeeded in persuading the Chief Justices of four of the five

other States and six leading Christian churchmen to subscribe their names asoriginal co-sponsors of The Call. Ironically, Latham although fiercely antiCommunist was alSQ a rationalist and eschewed all things religious. Hedeclined to add his name to those of the other distinguished judicial signatoriestelling Herring that The Call was rather too clerical for him. lSI Herring asked

146 Letter, Morris to Herring, 9 October 1951, The South Australian Chief Justicesought and obtained the approval of the Premier of the State before subscribinghis signature: Letter, Napier to Herring, 28 September 1951. The QueenslandChief Justice told Herring that he would sign provided the other Chief Justicesalso signed: Letter, Macrossan to Herring, 28 September 1951. Herring Papers,Box 27.

147 See KAmos, The New Guard Movement 1931-1935 (1976).148 Com ParI Deb, 1951, Vol 214, 1320-1321 (31 October 1951).149 Com ParI Deb, 1951, Vol 215, 1716-1717 (8 November 1951).ISO Herring Papers, Box 27. Age, 11 November 1951.lSI Letter, Latham to Herring, 28 September 1951, Herring Papers, Box 27.


Menzies to subscribe his name to The Call, but Menzies later told theParliament that he had declined the invitation because it had beenimpracticable to secure the signatures of other political leaders and he thoughtthe document "ought not to have any party aspect". 152 Herring was, however,able to generate support for the positive sentiment of The Call after itsannouncement from, of all people, Opposition Leader H V Evatt. IS3 Apartfrom Senator Ashley's protestations, Herring's extra-judicial contributioncreated little ifany adverse reaction.

The whole episode was skilfully stage-managed by McGuire and Herringand their behind-the-scenes advisers. The extent to which the distinguishedsignatories were aware of the circumstances in which The Call had beencontrived and the organisational uses to which it was to be put is unclear.Herring was careful in his announcement to distance The Call from anysuggestion that it was tainted by party politics.

This is all outside party politics. We have no notion of a mass organisation, a"pressure group", or anything of that sort. On the contrary The Call appeals toindividuals and to the organisations which Australians have already created toexpress their various interests, beliefs, and loyalties - churches, trade unions,Servicemen's associations, and the rest. 154

In emphasising this Herring was being disingenuous. The campaign wassteeped in the politics of the conservative parties. Herring also knew full wellthat there is more to politics that overt attachment to a recognised politicalparty. Organisationally, The Call seems to have achieved major successes. Itoperated through a private company, the daily management of which wasundertaken by McGuire and by 1954 was claiming to exert some form ofinfluence (exactly how much remains unclear) in 600 organisations acrossAustralia with a total membership of approximately 3,000,000. 155 As thephysical immediacy of the internal and external Communist menace receded inthe public imagination, The Call was gradually transformed into an antiCommunist movement which stressed the goal of promoting "bettercitizenship". This echoed similar anti-Communist campaigns in the UnitedStates in the 1950s and reflects Herring's continuing interest in antiCommunist activities elsewhere in the free world, especially in the United

152 Com ParI Deb, 1952, Vol 221, 2707 (23 November 1952). At the Windsor Hotelmeeting on 31 May 1951 Menzies had asserted that he was there in his capacityas Prime Minister not as the leader of his party. The use of this distinction saysmuch about the political skills displayed by Menzies.

153 Herring had approached Evatt to enlist his signature, but at frrst Evatt hadresisted saying that his frrst impression of the draft shown to him was that it wasa draft ofone of the speeches ofR G Menzies on the Referendwn: Letter, Evatt toHerring, 4 October 1951; Letter, E T Simpson to McGuire, 15 November 1951.Then Evatt indicated he would sign: Letter, N E McKenna to Herring, 25 October1951. But, again, he changed his mind: Telegram, Evatt to Herring, 1 November1951. Herring Papers, Box 27.

1S4 "'The Call' is accepted as a tenn meaning only one thing, and ~s such is used innewspaper headlines, radio, national publications and public references. (It hasbecome so established that subversive bodies are reported to have issued anopposition 'Call to the People of Australia' to create confusion.)" "The Call-Four Months Later", 17 March 1952, Herring Papers, Box 27.

15S Outline Notes for Speech by K H Oxley at Ballarat, 22 November 1954. HerringPapers, Box 37.


States of America. 156 The organisation which was established in 1951 waswound up in 1959.157

Herring continued to give informal advice to Shedden until the mid-1950s,but he refrained from public expressions of anti-Communism during the yearswhen the CPA slowly declined as a force in Australian politics. 158 The split inthe ALP which erupted in late 1954 and early 1955 with its strong element ofsectarian anti-Catholic bitterness, contributed to the retention of antiCommunism on the Australian political agenda well into the 1980s. Herringeven had a private role in the turmoil which followed the ALP split. InSeptember 1955 the leader of the breakaway parliamentary ALP(AntiCommunist) and fellow Anglican, Robert Joshua, wrote to Herring pleadingfor help and encouragement for his small political party. He urged Herring toconsider supplementing The Call by issuing a further challenge to the nation tolift the political life of Australia above sectarian strife and bitterness to a newlevel of morality and honesty. Joshua had been present when Herring hadvisited Ballarat and addressed a Call group meeting there in November 1954.The fact that Joshua was stimulated to plead for Herring's help during theupheaval then afflicting the ALP was the inevitable outcome of Herring'swillingness to launch and promote The Call and thus to involve himself inwhat was then the most divisive issue in Australian politics.

In receipt of Joshua's letter Herring was faced with a choice betweenpolitely declining Joshua's plea or involving himself, however discreetly, onone side of the bitter dispute affecting the ALP. He chose the latter. He toldJoshua that he had considered "whether there is anything I can properly do asto help you" [sic]. Herring described the problem as "by no means an easyone", but told Joshua he was sympathetic to his position and that he would seehim when he was visiting Ballarat on circuit the following month. True to hisword, Herring saw Joshua in Ballarat on 24 October 1955, but the availablearchival material does not reveal what passed between the two men on thatoccasion. 159

156 Herring took an interest in the activities of kindred anti-Communist organisationsin the United States, including those of expatriate Australian Dr F C Schwarz'sChristian Anti-Communist Crusade which had direct links with Australia. Thetone and modus operandi of The Call and its underlying organisation resemblewhat was happening in similar anti-Communist movements in the US at thattime. See M J Heale, American Allti Communism: Combatting the Enemy H'ithin,1830-1970 (1990) 167-177.

157 Herring Papers, Box 27. After Herring's retirement from the bench attempts weremade in the 1970s to revive the organisation as a result of which a Call toAustralia Party still operates and is represented in the New South WalesParliament.

158 He did hear a case about a CPA-inspired maritime boycott which led to chargesbeing instituted by the Menzies Government under s 30K of the CommonwealthCrimes Act 1914: Howell v Doyle [1952] VLR 128.

159 Letter, Joshua to Herring, 17 September 1955; Letter, Herring to Joshua,26 September 1955, Herring Papers, Box 27. A dispute between the A.L.P. andthe breakaway Democratic Labor Party came before the Supreme Court ofVictoria in 1961. Herring had also co-operated with the Catholic Archbishop ofMelbourne, Dr Daniel Mannix, in a campaign which resulted in the enactment ofthe Victorian Education (Religious Instruction) Act 1950. Herring's discreetcontacts with the defence and security establishment continued until much later.


Although Menzies had failed in his campaigns to outlaw the CPA, theseproved to be short-term setbacks only. It was his effective use of antiCommunism in the context of the ALP split which, in the long term, securedhis unique place in Australian politics. In this he owed part of his success tothe loyal soldiering efforts of Herring.

ASSESSMENT

The choice of criteria

Three factors impinge on any attempt to assess the events described in thisarticle. First, there is the potential for disagreement about individual judicialconduct which arises from the fact that in Australia there is no single codifiedsource of rules defining the minimum requirements of acceptable judicialconduct. 160 The traditionally accepted canons of good judicial behaviour inAustralia have been developed on an ad hoc basis and only recently have beengathered together in the book Judicial Ethics in Australia by the HonourableMr Justice J B Thomas of the Supreme Court of Queensland. 161 There is stillpotential for disagreement about the application of specific elements of thebasic principle. This is exemplified, for example, in the occasional continuingdebate about the propriety of Chief Justice Barwick's action in tendering adviceto Governor-General Kerr in November 1975 on the fate of the WhitlamGovemment. 162

Secondly, to what extent, if at all, is it necessary or desirable to make someallowance for the far-reaching changes in the Australian political environmentand in community and judicial attitudes since 1945? Those changes include the

In 1959 a public row broke out concerning the Australia and New ZealandCongress for International Peace and Disannament which met in Melbourne. TheCommonwealth Government denounced the Congress as a CPA front. Part of thecontroversy focussed on the role of the Director-General of ASIO, Brigadier CCFSpry, who intervened personally to persuade at least one notable sponsor of theCongress to withdraw his sponsorship. H Reps Deb, 1959, Vol 25, 2279-2280,2343-2352 (27 October 1959), 2524-2528 (10 November 1959). On16 September 1959 Herring spoke privately about the Congress to a senior ASIOofficial and fellow Anglican, Michael Thwaites, who had been recommended byHerring to Spry for recruitment by ASIO: R Manne, The Petrov Affair: Politicsand Espionage (1987), 250 (note). Thwaites prepared a statement for Herring toshow to the Anglican Archbishop of Melbourne: Letter, Thwaites to Herring,17 September [1959], Herring Papers, Box 27. Other prominent sponsorswithdrew, including the Anglican Dean of Melbourne. When he retired as ChiefJustice of Victoria in 1964, Herring made a speech in which he extolled thevirtues of the principle of the independence of the judiciary from the executive.Here we fmd the parting apologia for the activist anti-Communist judge couchedin Herring's aesopian linguistic style. It was, he said, "fundamental to ourfreedom. What happens when this principle is departed from is evident from whatis going on in many lands today. We must see to it that our citizens all Wlderstandthat an independent judiciary is the greatest bulwark of their liberties and theirbest defence against totalitarian rule." [1964] VR 47. \

160 J B Thomas, supra n 7.161 The public incidents/activities involving Brennan, Simpson, Dixon and Herring

are not referred to in the judge's book.162 Contrast E G Whitlam, The Truth of the Matter (1979) and G E J Barwick, Sir

John Did His Duty (1983).

194 Federal Low Review [VOLUME 21

end of the White Australia policy and the emergence of a much moreethnically diverse Australian community, recognition of past institutionalisedoppression and injustice inflicted on the Australian Aborigines, the steadydecline in religious obselVance and in acceptance of the view that Australia isa Christian nation, industrial diversification and consequent alterations inworkforce composition and social stratification, the breakdown in theconcentration of economic and political power, recognition of issues raised bythe feminist movement, a decline in the mystique surrounding the legal systemand especially the judiciary, and, finally, the steady decline and eventualdissolution of the CPA. It is the view of this writer that none of those changeshas led to any material alteration to the basic principle, although they do helpto explain why more judges are prepared to make public statements aboutissues of public interest.

The assessment which follows is based on the premise that the summaryaccount given in the introduction to this article accurately states the generalprinciples which, in theory at least, were accepted in Australia 40 years agoand earlier as limiting the boundaries of extra-judicial conduct by judges.However, it would be foolish to ignore the ways in which Australia haschanged. With the end of the Cold War and the transformation of East-Westrelations, it is temptingly easy to play down the intensity of anti-Communistfeeling and agitation in Australia especially in the first two decades followingthe end of the Second World War. Anti-Communist hysteria, which by the1960s was increasingly focussed on the threat of the downward thrust of AsianCommunism and the so-called "domino" theory, was eventually discreditedand burnt itself out. 163 However, any assessment of the episodes describedabove which neglects to emphasise the intensity of the class struggle at thetime will be flawed. The surrounding atmosphere of the early Cold War periodin Australia more than anything else explains why these episodes occurred andthe way in which they were greeted by judges, politicians and the public.

The third factor has to do with what can be called the prevailing judicialethos. Save for the short-lived political resentment caused by Simpson'sstatement, by Dixon's enigmatic endorsement of Menzies in 1949, and byHerring's promotion of The Call, the entry ofjudges into the political arena inthe early years of the Cold War in Australia appears to have excited littleconcern or criticism. It is suggested that, in large measure, this can beattributed to the conventional wisdom that, at any given time, judicialmisconduct is defined in terms of "what one's peer group would regard asdisgraceful".164

It is axiomatic that an overwhelming majority of Australia's judges duringthis period were vigorously opposed to Communism and easily convinced thatthe CPA was a subversive organisation. It is very likely the case that a majorityofjudges would have agreed with Mr Justice F A Dwyer of the Supreme Courtof New South Wales who, on 17 October 1949, in sentencing L L Sharkey,

163 M Sexton, Warfor the Asking: Australia's Vietnam Secrets (1980) Ch 1.164 J B Thomas, Judicial Ethics in Australia (1988) 3. In addition, there is the

cynical explanation; the only critics were politicians. Moreover, the absence ofcriticism within the legal profession and wider community was due to the overalllegitimating effect of the intense anti-Comrnunist feeling in the Australiancommunity at the time.


General Secretary of the CPA, to the maximum sentence of three years'imprisonment on a charge of uttering seditious words, told Sharkey that he wasevil and that the CPA was a seditious and treasonable conspiracy.165 At thetime most judges refrained from any display of public concern, in all likelihoodbecause they were content to accept the Chifley government's assessment thatthe threat to national security was greatly exaggerated. Even so, because,ultimately, the judges defined the boundaries of acceptable judicial conduct onand off the bench, the types of political activity described in this article couldall be said to be completely justified. However, unless we are prepared toaccept a doctrine of judicial infallibility, it is necessary to take the inquiry astep further.

Justifications/critiqueTo some extent, each of the episodes described above involved unorthodoxjudicial conduct according to the prevailing standards then and now. In itselfthat assessment does not imply criticism. What justifications were advanced atthe time? So far as the secret extra-judicial activities of Dixon, Herring andLatham were concerned, what justifications, if any, could be offered? Were anyor all of the justifications sound?

(1) The public statements were necessary to protect the institution of thejudiciaryIn the abstract this is an easily defensible position. In a time of an emergencywhich threatens the very existence of the courts there is no reason why judgesshould remain mute. At other times judges ought to be free to speak out singlyor collectively to respond to attacks on the judicial branch of government or,for example, to ensure that the courts are given sufficient resources to enablethem to function properly. 166

Brennan's opening attack on Communism at a time when popularsympathy with the CPA and the Soviet Union was at its peak was, at best, illadvised. Later, when his row with Paterson erupted, Brennan attempted to

165 R v Sharkey (Supreme Court (NSW), 17 October 1949, unreported judgment ofDwyer J). Transcript of Trial Judge's Sentencing Remarks. Australian Archives(ACT), CRS A432, Attorney-General's Department Correspondence Series, Item1949/308, Pt 1. Three years later Dwyer J took a leaf out of Brennan J's book andmade a public announcement on the evils of Communism when sitting in theSupreme Court at Wagga Wagga. He referred to the CPA publication CommunistReview and expressed dismay that those responsible for it had not beenprosecuted for sedition: Daily Telegraph, 15 October 1952; Herald, 14 October1952; Guardian, 16 October 1952; AA (ACT) A6122/16, Australian SecurityIntelligence Organization Central Office Subject Files Multiple Nwnbers Series,Item 989. However, not all judges were hostile to the Soviet Union. As late asFebruary 1949 Justice A W Foster of the Commonwealth Court of Conciliationand Arbitration was still described by the Australia Soviet Union FriendshipLeague as being one of its sponsors: City of Melbourne Archives, File 1949/809.Guardian, 11 February 1949. C Lannour, Labour Judge: The Life and Times ofJudge Alfred William Foster (1985) 202.

166 Recently, the judges of the Supreme Court of Victoria have decried the increasinglegislative tendency to whittle away at the jurisdiction of the Court: Victoria,Annual Report ofthe Judges o/the Supreme Court ofVictoria 1990-1991.


defend his first announcement in court by asserting that Communism inAustralia was menacing the judiciary.

There are several flaws in Brennan's position. In his initial attack of7 January 1945 Brennan spoke only in the broadest terms and his later expressreference to the position of the judiciary as an institution is far from clear. Forthe purpose of this discussion it is assumed that, despite the ambiguouslanguage chosen to express it, Brennan's fundamental concern was the survivalof the judiciary. For the argument to have any semblance of validity so as tojustify a judge giving a public warning, it needs at least to rest on a firm bodyof evidence that the CPA and/or its sympathisers in fact posed an immediateand dire threat to the continuation of lawfully constituted authority inAustralia.

As the Cold War evolved, conservatives constantly peddled the messagethat a Soviet-inspired CPA-led insurrection was imminent. They were assistedby a literal acceptance and interpretation of CPA rhetoric which was saturatedwith calls for revolution and the establishment of the dictatorship of theproletariat. The problem for all the protagonists was one of timing. For thosein the CPA who believed their own propaganda the revolutionary moment wasalways near. The conservatives conveniently accepted the propaganda at facevalue. So for them also the revolutionary moment was always imminent. Itmade good political sense for political conservatives to label the ChifleyGovernment as being "soft" on Communism and made for chilling headlines.Much heat was generated in the period 1945-1951 and later in support of theabsurd prediction that Australia was about to be overwhelmed by an internalCommunist revolution. It cannot be stressed too much that there is no evidenceto support the conservative prediction, least of all in early 1945 when popularsympathy for the Soviet Union was at a peak.

The danger to free speech in Australia inherent in demonising the CPA byaccepting its rhetoric at face value had been amply demonstrated by Evatt J inhis judgment in 1932 in R v Hush; Ex parte Devanny.

"When the time comes." It is, it would seem from the writings in evidence, theelement of time which must be closely examined in detennining whether at thepresent, or in the near, or very far distant, future there is to be any employmentof violence and force on the part of the classes for which the CotnrnWlist Partyclaims to speak. "The inevitability of gradualness" as a Socialist and Labordoctrine, the Communists reject. But they believe and advocate that a SocialistState must inevitably emerge from the very nature of capitalist economy. Butwhen? 80 far as the evidence placed before us goes, there is no answer to thisquestion. So that one possible argwnent, which may be open to the CommunistParty in explaining their references to physical force, is that force and the threatof force are far distant from the present or the near future. The history of theattempts and failures of Communism to gain control of other politicalmovements of the working classes may tend, upon close analysis, to show that,to tum the phrase, Communism illustrates the gradualness, the extremegradualness, of inevitability. 167

In any event, Brennan was also wrong in making a public response to theensuing attack on his integrity. His response infringed the clear prohibition onjudges engaging in public debate about their deci.sions or otherwiseparticipating in public debate about political or other controversial issues

167 (1932) 48 CLR 487,517-518.


unrelated to specific cases. It is for others to respond to such attacks. IfBrennan had carefully considered his position when the Guardian article firstcame to his attention, he certainly did not act cautiously in deciding to make apublic response. It would have been far preferable for him, having had his sayin Sydney, to have ignored the personal criticism of himself, since it shouldhave been plain to him that it was inevitable that Paterson would have the lastword.

(2) Judges are free to speak out publicly as ''private citizens'~

This approach, commendable in the abstract for its commitment to tolerance,needs to be considered carefully in its application to the cases described above.Mr Justice Brennan had asserted a right as a private citizen - "as anAustralian" - to speak out publicly on issues of public concern. Holloway'sanswer to Fraser's question about Simpson's speech to the RSL involved theBrennan approach being given a parliamentary imprimatur.

In Brennan's case the argument falls down hopelessly since, apart from hisspeech in Sydney, Brennan was astute enough to make all his announcementsin open court. He was attempting to speak simultaneously as an ordinaryprivate citizen and as judge. Similarly, in neither Simpson's nor Dixon's casedid the Government's justification of the judge's public announcement - thatit was defensible because it was not an ex cathedra pronouncement withstand close scrutiny. This type of claim can be analysed only in terms ofthe content of the statement and its impact on the audience concerned. Therecould be no certainty that members of the public reading or hearing of thejudge's public remarks would interpret them as anything but a consideredopinion by a judge in his capacity as a judge. Fraser's criticism of Simpson'soutburst was valid. Simpson clearly infringed the long held view that judges donot engage in political controversy. Holloway's analysis of Simpson's status asa private citizen was as misconceived as Brennan's was of his own such status.

Simpson's willingness to speak out on an issue which was not onlypolitically sensitive, but which Simpson, as a leading figure in the RSL, musthave known was also the subject of highly publicised pending litigation in thesuperior court of a neighbouring jurisdiction, was a serious departure fromlong accepted standards ofjudicial propriety.

If a judge as private citizen was free to make the kind of partisan publicstatements such as those advanced by Brennan and Simpson, it is difficult tosee how exception could be taken to a judge privately giving advice orinformation on matters of policy to diplomats, politicians or bureaucrats. It ishighly unlikely that either Chifley or Evatt knew, for example, that Dixon hadgiven Boyce a confidential assessment of Professor Crawford's loyalty or thatDixon was a source of confidential information for Shedden or played a role ininformally briefing Shedden for his 1949 trip.

Dixon's public approval of Menzies in early 1949 was open to the samecriticism advanced earlier in connection with Brennan's and Simpson's publicstatements. Assuming that Dixon was accurately reported., his swipe atparliamentarians generally and his willingness to endorse Menzies was, atbest, ill-advised. The fact that Dixon was bipartisan in his sneeringcondemnation of members of the federal parliament is beside the point. Thiswas an election year and he had either in fact given a glowing boost to thepolitical qualifications of the Leader of the Opposition (which was undeniably


improper) or had expressed himself in such a way as to make it appear to thepublic that he was engaging in partisan' endorsement. Even if the dominantflavour of his remarks was humorous, Dixon showed a lack of nous. In allthree cases the expression of a so-called private opinion was transformedbecause of the substantial prestige attaching to the speaker's judicial office. Nomatter what was intended it was inevitable that such an opinion would beregarded by the public as anything but a mere private opinion.

(3) Judges are free to express their views in privateSimilarly, this justification is, in the abstract, quite compatible with the basicprinciple of judicial independence. Whether in any particular case a judgeimproperly expresses a political view or exerts political influence will, again,depend very much on the content and context of the statement or otherinfluential conduct. As for Dixon's and Herring's discreet fraternisation withdiplomats, public servants and politicians, there is a strong case to be advancedthat in contemporary Australia such conduct is incompatible with minimumstandards of proper judicial behaviour and that it was no different at the timewhen these events occurred. It will always be a question of degree. Where doesone draw the line between occasional informal contacts and frequent formaladvisory dealings or occasional dealings on matters of high policy notconnected with the administration of justice? In more tranquil times suchcontacts need to be carried out with concern for the potential harm that may becreated for a court. In times of great political ferment, the likelihood is thatsuch contacts, if publicised, will jeopardise the judge's position of impartiality.Even where such contacts are not publicly revealed until many years later,limited knowledge about their existence at the time may, for example, lead totension or embarrassment within a court.

Should Shedden have discussed defence and foreign policy issues withDixon? Should Dixon have allowed himself to become involved, howeversecretly and however marginal Dixon may have regarded his involvement, inbriefing the Government's chief defence adviser in what was one of the mostdelicate and difficult defence and foreign policy issues facing the government?Perhaps Dixon believed that his comment to Shedden on the eve of Shedden'sdeparture was no more than a passing remark to an old friend. After all, judgescannot be expected to shun all personal contact. Those from conservativebackgrounds will usually have friends whose political views are conservative.Those from left-wing backgrounds (numerically ·far fewer) will usually havefriends whose political views may well be radical. Understandably, in eithercase a judge will normally want to see such friendships continue.

It is clear, however, that Shedden treated the contact seriously and it isdifficult to accept that Dixon was not fully aware of the sensitivity and gravityof Shedden's task. There is no reason to doubt the meticulous Shedden'sacknowledgment that Dixon knew that Shedden's visit was central toAustralia-US relations. Discreet contacts ~eld little if any potential foraffecting public confidence in the courts and individual judges. However, giventhe gravity of the situation, the impending Australian election, the likelihoodthat Dixon well knew that the US Government (especially the NationalMilitary Establishment and the State Department) wanted to be rid of the ALPadministration in Canberra, the way in which the anti-Communist crusadepermeated all levels of Australian life, and the recent controversy arising o~~ of


Dixon's public remarks at the ESU luncheon in Melbourne, there had to besome risk, however small, that Dixon's behind-the-scenes involvement in oneof the most crucial issues facing the Chifley Government could becomepublicly known and cause embarrassment to the High Court.

Dixon's experience in Washington and his continuing interest in Australia'sforeign relations were, potentially, a source of useful information for theAustralian Government. However, if the Minister for External Affairs hadformally sought advice from a serving Justice of the High Court on aspects ofthe conduct of such a sensitive area of government policy the likely resultwould have been a polite refusal since it is clearly no part of a serving judge'sfunction to act as such an adviser. In fact, such a situation would not havearisen with Evatt in the ministerial chair. Evatt's grip on the conduct ofAustralia's foreign relations was not characterised by resort for advice toShedden or those in Shedden's circles. That Shedden and Burton and theirrespective departments were at loggerheads, a fact that was known to Dixon,was an additional reason why Dixon should have avoided the informalbriefings which he gave Shedden.

(4) Communism was "above politics"

This spurious justification was used to explain the unprecedented activities ofBrennan, Simpson, and Herring. It enabled Herring to accommodate theVictorian Government's plan to conduct an inquiry into the CPA in Victoria.Herring tried to have the best of both worlds by holding judicial office and byparticipating in the executive branch formally and informally. His appointmentas Director-General of Recruiting cannot be viewed in a political or personalvacuum. It appears to have occurred as a result of a desire to please Menzies.In calmer times such an appointment may have been less fraught with thedanger of public controversy. But the timing of the appointment was critical. Itoccurred when the Menzies Government was launching its attack on the CPAand warning of imminent Communist aggression. Herring's willingness to takeleave from the Court (as distinct from resigning from it) to lead a recmitingcampaign for Australia's involvement in an external confrontation with AsianCommunism inevitably added judicial respectability to the stigmatising ofAustralian Communists.

Herring's forays into the world of politics offended against widely heldviews on the role of judges. His occasional public statements about the evils ofCommunism were open to the same criticism as those of Brennan andSimpson. In particular, his participation in the formulation of the The Call toAustralia was, despite all the Aesopian trappings surrounding the launch ofThe Call, an exercise in partisan politics. In the circumstances, the willingnessof the other State Chief Justices to endorse The Call was marginally lessimproper and contrary to good sense and principle.

To be sure, it is necessary to take account of the fact that a major part of theorganising effort for The Call occurred when Herring was on leave from theSupreme Court and acting as Director-General of Recruiting. But, in the end, itwas Chief Justice Herring who exploited to the fullest "his enormouslyinfluential role as a judge with 'a high public profile.

It is also true that Menzies was removed from direct participation in theorganising effort, but he was ever-present through his partisan adviserMcGuire. There was a superficial sense in which it was true that The Call was


outside party politics. It did receive a measure of bipartisan support. However,despite the external trappings, The Call was inextricably bound up with thepolitical struggles of the time. At one stage McGuire emphasised to Herringthat Menzies did not want any action on The Call until after 22 September1951, the date of the Referendum on the Constitution Alteration (power toDeal with Communists and Communism).168 To suggest that the 1951Referendum was "above politics" involves turning a blind eye to the obvious.Even if it is assumed that Menzies' embargo on the launch of The Call wasintended to maintain the integrity of the Referendum process, Herring waswrong to allow himself as a judge to be a part of the behind-the-scenes activitywhich affected a bitterly fought partisan Referendum campaign.

In all of this Herring was a willing and eager servant of the MenziesGovernment. Despite all the protestations to the contrary, there was a stronglink with party politics through Menzies and individuals and groups associatedwith his party. At any other time the party political connection should havebeen cause for concern, but Herring was content to be a part of the great antiCommunist crusade. The constant repetition of the self-validating incantationabout The Call being above party politics fits into the development of the antiCommunist crusade in the period 1945-1955 which began with attempts tooutlaw Communism in the face of alleged incipient revolution and, after 1950,was transformed into a much more subtle but all-pervasive movement to warnpeople about the insidious "brainwashing" and devilish deception of the CPAand its followers. Menzies had been thwarted in his bid to outlaw the CPA andits adherents. But the crusade had entered a new phase. For Herring theinternal threat posed by the CPA was now to be met by a well organisedpropaganda campaign in which Communism was to be branded as contrary tothe essence of "Australianism".

The whole exercise was based on the assumption that Communism had tobe stamped out. Manifested in The Call was the entirely unedifying spectacleof a judge leading a campaign infected by authoritarianism, devoted to thepromotion of intolerance, and driven by the use of fear and scare tactics. Whydid Herring persist with his involvement in The Call after the people ofAustralia had, in rejecting the Referendum proposal on 22 September 1951,albeit by a very narrow margin, sent out the message that a free Australia couldaccommodate a highly unpopular dissenting minority such as the CPA? In theend it seems that it can only be explained by the fact that Herring, thedisciplined cold warrior, was a man who saw a need to protect theundisciplined, credulous and vulnerable people of Australia against their ownpoor judgment and stupidity. As for the internal threat of Communism,Herring's persistent reference to the existence of a "national emergency" and"darkest days of war" rhetoric was completely at odds with the findings of hiscolleague on ~e Supreme Court of Victoria, Sir Charles Lowe in the VictorianRoyal Commission. The best that can be said for Herring is that he acted out ofa profoundly misguided sense of civic duty.

Finally, there is Latham's parting shot in the Communist Party DissolutionAct case. It has been said of Latham that this was the case in which heexpressed himself with the deepest personal involvement and that this

168 Letter, McGuire to Avery, 9 September 1951, Herring Papers, Box 27.


demonstrated an inadequate regard for fundamental liberties. 169 WhereLatham's approach is open to severe criticism is in the claim he makes that hewas doing no more than applying a set of legal criteria and that his judgmentwas free from political considerations. The stark dichotomies posed by Lathamoften involved absurd choices and ignored what was happening in the realworld. The worst that might be advanced against Latham is that he shouldhave declined to sit. Yet to do that would have involved a tacit acknowledmentthat his mind was so agitated by anti-Communism that he was incapable ofadjudicating on the issue. Such a confession would have been unthinkable atthe time.

(5) These episodes were isolated and inconsequential

If it is accepted that a majority of Australian judges vehemently opposed theCPA and its political and industrial objectives and that the High Court andState and Territory Supreme Courts emerged from the early Cold War yearsundamaged by anti-Communist hysteria, does it really matter at all that arelatively small number of judges stepped into the political ring or wereengaged in questionable private extra-judicial activities? The fact that therewere so few public episodes should not divert attention from the impact whichthey had in terms of reinforcing the uncompromising hostility of politicalconservatives to the CPA and giving a measure of public respectability to theclaim that members and supporters of the CPA deserved to be treated asoutlaws. If highly placed judges recognised in the community as being theembodiment of fair-mindedness and reason were moved to speak out, thentheir opinions were bound to be influential. 170 In the end it is not necessary topoint to a minimum number of examples or a pattern of conduct to make out acase that meddling by judges in partisan politics is destructive of soundconstitutional arrangements.

169 Z Cowen, Sir John Latham and Other Papers (1965) 47-48. ,170 Chief Justice Napier told Herring that his Associate had told him that a

tradesman had reacted to the sentiments of The Call by telling the Associate thathe would not have been impressed had it been issued by politicians - it wouldhave been regarded as propaganda - but the fact that judges has made the appealled him to treat it seriously: _Letter, Napier to Herring, 29 November 1951,Herring Papers, Box 27.

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