Sydney’s Background - The Convict in us all #

Australia is fortunate in having a number of outstanding historians delving into our past to discover ourselves. Divergent opinions lead to an appreciation of the complexity of our history. Honest research and appraisals can still lead to inspiring accounts. As part of the culture wars Alan Tudge, and others claim examining the past causes students to hate our country, while Stuart Macintyre claims that “submitting history to a loyalty test, debases it.”

Manning Clarke, Geoffrey Blainey, Russell Ward and many others gave us opposing narratives and approaches. Primary sources are often more reliable.

Indigenous Australians took good care of the land for more than 65 thousand years, only for Joseph Banks to declare, " these are the most uncivilised savages of the world because they can’t make proper use of the land".

James Cook’s impressions were quite positive. Here is a summary of his observations:

“The natives of New Holland may appear to some to be the most wretched people on the earth, but in reality they are far happier than we Europeans, who are wholly unacquainted with the superficiality of the necessary conveniences so sought after in Europe. They are happy in not knowing the use of them. They live in a tranquility not disturbed by inequality of condition. The earth and sea of their own accord furnishes them with all things necessary for life. The care not for magnificent houses or household extravagances. They live in a warm and fine climate and enjoy wholesome air”.

James Cook was under strict express orders:

“to look for signs of occupation and negotiate with any natives they encountered” and “to open dialogue and establish friendship”.

Thomas Morton, President of the Royal Society added:

“any natives you encounter are to be considered natural and legal possessors and no European nation has the right to occupy or settle among them without their consent.”

The natives made it quite clear all they wanted is for the White people to be gone and leave them alone. Cook eventually decided to disobey his orders, by declaring the country “terra nullius” allowing him after three months of mapping the coast, planting a British Flag on Possession Island laying claim with his lie, to all of New Holland, renaming it New South Wales. And this man is made a hero?

Australia’s origin as a penal colony for the refuse of England’s unwanted criminals has often been used to deride us as tainted. In fact some descendants of the original convicts for many generations kept this secret until the 1960’s when Australia came of age and since then each new generation of descendants proudly acknowledge their heritage. Paradoxically it is not the original convicts who have brought shame on our reputation; rather the Marines who accompanied the 11 ships of the First Fleet.

When they landed and were given orders to guard the convicts, these Marines were offended; they were Marines, not soldiers, and guarding prisoners was not part of their brief. Governor Arthur Phillip wrote to Lord Sydney, “most of them declined any interference with the convicts…”

Especially the Officers realised the potential opportunities the new colony afforded them – Land! Had they returned to England their chances of acquiring land were remote, yet here was plenty and when Governor Phillips was forced to return after 4 years due to ill health they seized the opportunity to have one of their own, interim Governors King and Hunter to grant them as much land as possible. Ultimately they gained a monopoly on all trade in the colony and formed what is known as the Rum Corps.

Initial attempts by Governor Bligh to curb their corruption failed when they simply staged a coup by arresting him and it took the appointment of Governor Macquarie in 1810 with his own regiment of soldiers to temporarily rein them in. For ten years Macquarie kept the naysayers in check, however their continued reactionary sniping and subversive appeals to England claiming that he was “wasting resources on Public Works” - roads, bridges, schools, buildings….eventually saw the Bigge Reportssupport their case and by 1821 Macquarie was recalled to England in disgrace.

Alex Buzo’s play, Macquarie, provides light on this period of time.

Manning Clark’s writings demonstrated that Australian history was

“but a variation on the universal themes of life and death, greed and hope, curse and vengeance”.

Despite the brutalising history of convictism, frontier violence and a harsh environment, Clark maintained history is “the struggle between the organised rich and the organised poor”.

Clark’s public statements characterised the non-Labor parties as little more than moneychangers and philistines. He may have been influenced by Charles Harpur, the first native born poet who declared:

“I am not of the present men of Australia, nor could I mass myself down into the dead miry level of their intellectual grossness.”

This level of conflict between the purveyers of culture and those of philistine money changers appears present through to this day. Later Harpur wrote:

“I have had to mingle daily amonst men who have faith for nothing in God’s glorious universe that is not, in their own vile phrase , ‘money’s worth””.

Clark was fired by inspiration that came from an unknown but implicitly divine source. He claimed that he wanted to understand what had moved men, had inspired and defeated them, believing that “what happens and has happened in life mocks the fitness of things.”

These words, echoing Ecclesiastes - “All is vanity”

(Humphrey McQueen, in the introduction to A New Britannia, 1970);

“This history is critical not celebratory. It rejects myths of national progress and unity. It starts from a recognition that Australian settler society was built on invasion and dispossession”

Australia we are uncertain of everything, we feel insecure. What is the cause of this? … First … geography, the hostile environment, the fear experienced when alone … second, the doubt, do we belong here, perhaps this is geography, perhaps history … third, Australia as the harlot, raped by the Europeans, coarse, vulgar, meretricious.

Alex Buzo’s Norm and Ahmed shines the spotlignt on these issues.

Courts of Crimminal Judicature #

The Commission of the first Judge Advocate David Collins, dated 24 October 1786 appointed him Deputy Judge Advocate in the Settlement within our Territory called New South Wales. He also had a warrant as Judge Advocate to the Detachment of His Majesty’s Marine Forces. Henry Brewer, a midshipman, was appointed provost marshal, to bring charged offenders before the courts.

The official position was that the colony should be a multi-purpose one as a penal colony, a strategic, free settler outpost, and an opportunity to acquire flax for sails and Norfolk pines for mast posts.

The first court cases concerned marines; Private Green for being drunk on guard, put on probation, and Private Bramwell, who was sentenced to 200 lashes for assaulting a female convict, Elizabeth Needham, he had been intimate with, but who later refused his advances. Despite the marine’s concerns, it was a second reflection of Lord Sydney’s and Governor Phillip’s policy of treating convicts and free settlers as equals before the common law and authority. The first concern was convicts receiving equal share of food as free men and officers.

Within ten years, the balnce had swung in favour of the masters.

The next two Judges appointed in 1810, were the Bent brothers, Ellis and Jeffery. They were bent by name and deed. They resolutely believed that the law was there to protect the privileged from disadvantaged barbarians, resisting any attempts of former convicts being accepted in respectful society.

More than 600 Irish, American, Welsh, Canadian and British political prisoners ended up being deported to New South Wales to become someone else’s problem. They got together to resist authority by peaceful means, but when these failed they resorted to violence and uprisings. In 1804 a group of Irish convicts led by Robert Emnett overthrew their jailers and marched on Parramatta. Looting and destroying farms, the rampaging men began to indulge in rum, becoming undisciplined. Governor King sent out a few soldiers to quill the riot. A trial in 1805 found one of the leaders, Dwyer, “Not Guilty, however later Governor Bligh overeturned the verdict.

In Tasmania’s Port Arthur and Macquarie Harbour became one of the most brutal, prison systems in the world with tyrannical soldiers enacting punishments of raw savagery and remorseless barbarity resulting in the debasement of many of the toughest convicts. Some who survived, like Michael Fenton, William Coffey and John Flood formed political cells of persistence resistance to demand their rights and force the government towards democracy.

The revolt of the Eureka Stockade also demanded political rights.

Perhaps the first most isolated reforming Judge was John Hubert Plunkett, an Irish Catholic prosecutor who successfully brought the murderers of the 1838 Myall Creek massacre to justice despite the resistance and hostility of the media supporting the budding bunyip aristocracy of landowners. The case established the principle that “the natives of the colony have equal rights with the people of European origin to the protection and assurance of the Law of England”.

Mark Tedeschi QC. It too was “more honoured in the breach than the observance”.

Early Squatters who claimed large tracts of land under dubious legal grounds soon became wealthy and by 1840’s established a wealthy squattocracy known as the Bunyip Aristocracy. They too soon developed a “Born to rule” mentality and treated their “lessers” with benign contempt. Banjo Patterson’s Waltzing Matilda is a revolutionary song supporting the shearers in their disputes with the rich Squatters. This movement eventually spawned the Labor Party.

Early Federation saw Australia surge forward with surprising advances in egalitarianism, votes for women, economic prosperity and a promising future. The sacrifices of WWI, the depression and WWII soon put pad to this and it took until the late sixties for Australia to recover.

Harry Higgins instituted the Harvester Judgement in 1907 establishing that the test of a fair and reasonable wage was ‘*the normal needs of the average employee regarded as a human being living in a civilized community’. This set in concrete Australia’s reputation of fair go and egalitarianism.

The bitter divisions the first World War conflict created, the growth in sectarianism and the awful aftermath of ruptured families and narrow minded isolationism. Australia’s population in 1914 was about 5 million, and the nation was at forefront of democracy and social policy – this after 50 years of progressive legislation in colonial jurisdictions and 14 years of innovation by both a real Liberal party and the new ALP. Nothing like that can be found after WW I. There was little joy, little innovation and not much culture for three decades dominated by a depression and a war that actually really threatened the nation’s survival. ― Paul Shepard, Man in the Landscape: A Historic View of the Aesthetics of Nature

The “Born to Rule” motif reacted with the rise of The Old Guard (quasi fascists) closely followed by the New Guard (led by Eric Campbell), paramilitary vigilante forces formed in the 1930’s to combat communism and the visionary public spirited government of Jack Lang. Using the predictable tactics of press hysterics and smearing of profligate spending on Public Works (The Sydney Harbour Bridge was too expensive and would never be paid off) they managed to undermine Lang’s government and he was dismissed by Sir Phillip Game in 1932. Depicting Lang as a captive of communism, the New Guard supported a New Australia Party, whipping up rabid frenzy and winning the election.

Similar philistine tactics were used to discredit the building of the Opera House and the much needed reforms of the Whitlam Government in the early 1970’s. In 1991, the Keating Government established the Creative Fellowships, a patron of the Arts to support struggling artists. Representing, what Gareth Evans called, “a bone dry, but socially progressive government”, Keating, Hawke and Whitlam all recognised the social imperative of encouraging home grown artistic expression. It was the philistine governments of John Howard and later George Brandis who scuttled these enlightened benefices.

The rise of Tony Abbott to Prime Minister in 2014, was based not on positive programs, rather on the hysterical negative campaigns of “Stopping the Boats”, further demonising refugees and “A Great Big Tax", denying climate change….. Peta Credlin and Abbott both admitted these were lies.

The more things change, the more they remain the same!

Civil standards are conditioned, internalised, becoming deeply embedded within a nation’s psyche. Once established they become endemic and acceptable standards become a continuity in the nation’s traditions. Australia is not among the world’s most corrupt nations, but we do tolerate a level of corruption higher than many. Mateship condones a culture of cronyism infiltrating all levels of society. Nepotism is acceptable, but only if it stays in the family. Recent investigations into corruption in the States of Victoria, Western Australia, Queensland and New South Wales have all found systemic and routine evidence of widespread corruption including politicians on both sides, high level police officers, judges and many others.

Paul Kelly writes that the 1950’s and 60’s:

“the cops were crooked, the races fixed, industrial battles made and broke legal and political careers, illegal gambling, grog and girls featured in a milieu where established power and underworld figures mixed freely in a fog of deals and dinners. It was nothing extraordinary; it was just Sydney - until questions began to be raised.

Steve Dow in Then Monthly, claims The lady vanishes, is an enigmatic film that explores the unsolved disappearance of Juanita Nielsen:

Sydney, the city of ever-rapacious development, killed Juanita Nielsen. A journalist and small-time publisher, Nielsen took on the might of sin city’s capitalist network, a honey pot that connected developers to seamy nightclub kingpins, their mutual sense of entitlement to exercise their capitalist clout strengthened by verbal threats and physical intimidation.

Organised crime had flared in New South Wales during the decade of Robert Askin’s Liberal government, which was in power from 1965. As a coda to that era, the botched police investigation of Nielsen’s disappearance in Kings Cross in 1975 would be tainted by allegations of corruption.

Nielsen had swung her newspaper, NOW, behind union green bans to stop bulldozers moving in on terraces in Victoria Street, where she lived. “What she was doing in the 1970s was what we now understand to be contemporary journalism,” says video and documentary artist Zanny Begg.

Things only change with public pressure. Many factors raised public awareness that things were not right and a concerted effort by a variety of public spirited leaders emerged to tackle the issue. These include: Artists, lawyers, journalists, Judges, Politicians and Special interest groups.

Bob Bottom spent his life investigating, reporting and exposing organised crime and corruption at the highest levels from the early 1960’s leading to the downfall of government ministers, a police commissioner, a chief magistrate and a high court judge. His most notable quote: “The greatest discovery of the twentieth century is the extent of human ignorance”.

Evan Whitton, who has been reporting on corruption for more than thirty years, received the Walkley Award for National Journalism five times and was Journalist of the Year 1983 for “courage and innovation” in reporting a corruption inquiry. He was editor of The National Times, Chief Reporter and European Correspondent for The Sydney Morning Herald and Reader in Journalism at the University of Queensland. He is now a columnist on the online legal journal Justinian www.justinian.com.au

A fearless crime reporter, Whitton saw June 25^(th) 1969 as the high point in the rise of organised crime in Australia. Leonard McPherson, a well know colourful identity was fined a nominal $100.00 for consorting by Judge Murray Farquahar on dubious evidence given by Sergeant Frank Charlton.

From that day until the mid 1980’s, black and white hats, including the Premier, Robert Askin, the Police Commissioner, Norman Allen and Fred Hanson, intermingled freely with the stench of corruption like a rotting carcass in a stagnant pool rising to the top, rolling over and slipping below the surface again. (Evan Whitton)

Underworld figures have operated with impunity both in Melbourne, Brisbane and Sydney for years. We also have evidence that politicians have been compromised, yet we simply put up with it. How and why did things change?

Whitton inspired a number of other bright brains into legal journalism to expose incipient, incestuous and insidious corruption, including Richard Ackland, David Marr, Kat McClymont and Joanne McCarthy. Many would - be prominent politicians have ended up in jail.

David Williamson’s The Removalists (1971) raised the issue of Police abuse of power and authority through brutal violence as did a television series The Scales of Justice, highlighting the issues of casual corruption in the Police Service. ABC Television exposed widespread corruption in various documentaries most noteworthy Chris Masters, 4 Corners program, The Moonlight State. These created a climate for public discussion.

Honest police officers were a rarity in those days as one comedian quipped:

They found another honest policeman the other day.

What does he look like?

We don’t know; we haven’t dragged him out of the river yet.

In 1980, Frank Costigan QC. chaired the royal commission on the activities of the Federated Ship Painters and Dockers Union. The commission courageously moved from the investigation of union criminality to allegations of tax evasion by many prominent business, legal and political leaders as well as organised crime. Since then governments have learned to impose narrower restrictions and strict parameters on all commissions so that their mates are not embarrassed.

When John Howard was forced to have an inquiry into the $300 Million Australian Wheat Board’s kickbacks to Saddam Hussein scandal, which could not have escaped the notice of his government, he made sure the terms of reference precluded any investigation of politicians. And he got away with it.

Plus ca change, plus c’est la meme
(The more things change, the more they remain the same!)

Human Rights Lawyers #

Social reform lawyers and Queen’s counsel also advocated stronger curbs on excessive Police and Judicial power. Chris Murphy, a young criminal lawyer from the early seventies, waged war against the Police practice of Verballing (writing confessions for suspects to sign under duress) Further it was the brilliant and tenacious work of journalists, (Evan Whitton, Bob Bottom, Kate McClymont, et el) that official corruption received the public scrutiny necessary to raise public awareness of the detrimental cost to the community.

Charles Waterstreet, a rake criminal lawyer, accused of “bringing the legal world into disrepute”, demanded to know the precise date in which it had ever been in good repute.

Julian Burnside AO QC has been an excellent advocate attempting to humanise our response to the human misery of asylum seekers. In 2009 he was appointed An Officer of the Order of Australia for service as a human rights advocate.

PETER RUSSO, DR HANEEF’S LAWYER: In 2007, a fearless Barrister who leaked the full transcripts of a Police record of interview with Dr Mohammed Haneef, falsely accused of consorting with terrorists. Russo successfully counterpoised selective releases by KEVIN ANDREWS, then, FEDERAL IMMIGRATION MINISTER, who allegedly was disingenuously attempting to foment a crisis situation, stoking fears of terrorism for political gain.

Judges #

A number of Judges were implicated in consorting with criminals throughout the sixties, to the early eighties. Judges Murray Farquhar, John Forde, Lionel Murphy, David Yeldham, and Marcus Einfeld all betrayed their special position of trust demanding the highest standards of conduct. As well a number of judges have routinely had to face Parliamentary committees to explain some of their decisions.

Lionel Murphy is perhaps the most conflicted, controversial and polarising. Variously described as a reformer and a man of principle or a reckless activist Judge. Credited with reforming the Family Court, no fault divorce, trade practices Act and Racial discrimination, he courted many fierce enemies. His appointment to the High Court so enraged The Chief Justice, Edward Barwick, he claimed to the Prime Minister, Gough Whitlam that Murphy “is neither competent nor suitable”. Barwick was fully qualified to know, due his own lack of suitability, as we shall see below. Murphy’s supporters claim he was hounded by opponents whose only motivation was to get rid of a political activist who posed a threat to established social order.

During the eighties flood gates of allegations opened. “*Of the 41 allegations, made as inquiry submissions, 20 were rejected out of hand. Those that survived, but remained untested, chiefly centre on the relationship between Murphy and NSW Labor premier Neville “Nifty” Wran, and Murphy’s alleged willingness to tap Nifty for a few favours for mates, prominent among them, Sydney gangster Abe Saffron. By current standards, the loot was modest: a lease on the harbourside land occupied by Sydney’s Luna Park, before a 1979 fire there; contracts to refit Central Station. “Evidence” that Murphy was in cahoots with Saffron, included that he used to dine at Saffron’s motel restaurant in Edgecliff. A motel restaurant in Edgecliff! Them’s were the days.” *Guy Rundle

George Williams, a highly regarded legal expert, contends “that other inquiries would typically not release allegations lacking in credibility as here”.

Sir Garfield Edward John Barwick, AK GCMG QC (22 June 1903 – 13 July 1997)

Known as the tax dodgers advocate, Barwick is seldom held in high regard by reformers. According to Evan Whitton:

The tax evasion sluicegates opened in 1957 when trial lawyer Barwick persuaded the High Court that “absolutely” in the 1936 Tax Act did not mean “absolutely”; there could be exceptions.

The torrent became a flood in 1974 when Barwick CJ, along with Harry Gibbs and Doug Menzies JJ, ruled that a profit of $2782 was a loss of $186,046. Credited with building new High Court – Gar’s Mihal - Justice Garfield gained notoriety with his controversial advice to Sir John Kerr regarding the constitutional right to dismiss the Whitlam government in 1975.

However on the positive side, a number of Senior Judges have stood out as outstanding paragons of virtue either in exemplary dissenting decisions, speaking out or as the heads of Investigating Bodies. In most cases these have been at great personal cost to their professional lives. Many comment on what an isolating experience it becomes.

Those instrumental in conducting fearless corruption inquiries include: Sir Lawrence Street, Ian Temby, Tony Fitzgerald, James Wood, and many others. At least two cabinet ministers have been jailed as a result of these official inquiries; Rex Jackson in NSW for accepting bribes in an early release of prisoners and Police commissioner Terry Lewis in Queensland.

Writing twenty five years later, Tony Fitzgerald reflects on the hazards of speaking out:

The pressure on Mr Fitzgerald and his team at the inquiry was relentless. “We couldn’t stop, it was 24/7,” he said. Asked about the impact at home, he agreed there had been “consequences”, but even now he won’t go into detail about what his family went through, explaining that they had all moved on from that fraught time.

“Can you rewrite history? No you can’t,” Mr Fitzgerald said. “In a sense, I think that anyone who does an unpopular task puts themselves at risk, whether it be physical or professional risk or critical risk. That’s a consequence. It’s always out there.”

Mr Fitzgerald said ultimately he realised that it would be impossible for him to stay or work in Brisbane. In 1998, he and his wife moved to Sydney, where he became a judge of the appeals division of the NSW Supreme Court, though they kept their beach house on Queensland’s Sunshine Coast.

*He is scathing of the legal bar in Brisbane, of which he was once a prominent member, branding it fearful of change. “Up there in the legal profession I’m a square peg in a round hole,” he said. “There . . . are always character assassins, there are always the envious. Up there . . . to me, conformity is an absolute way of life.” JAMIE WALKER, THE AUSTRALIAN SEPTEMBER 21, 2013

Other High Court Judges have broken rank and spoken out about the politicisation and the closed culture within the Judiciary, including Justice Dyson Heydon and Michael Kirby.

Justice Mary Gaudron, the youngest female appointee to the High Court, made significant contributions towards fostering a more progressive climate towards a just society. She is perhaps best remembered for the Mabo case, where in joint judgment with Justice William Deane, she said that Australia’s past treatment of Indigenous Australians was “the darkest aspect of the history of this nation”. (Wikipedia)

Attack on Kirby split High Court

David Marr April 2, 2011 #

BEHIND-the-scenes division in the High Court ended in a screaming match a decade ago after Senator Bill Heffernan accused the High Court judge Michael Kirby of using Commonwealth cars to procure young men for sex.

A new biography of the judge quotes Justice Mary Gaudron saying the then chief justice, Murray Gleeson, ‘’lost it’’ with her when she proposed they put out a statement defending Justice Kirby.

‘‘He was screaming at me. ‘Who do you think you are? Have you appointed yourself press secretary to this court?’’’

The biography, Michael Kirby: Paradoxes and Principles by A.J. Brown, of Griffith University, reveals that the judges were among the first to learn the dossier Senator Heffernan was using to smear Justice Kirby was bogus; that Justice Gaudron became the first known whistleblower in the history of the court by leaking that information; and that the row with Justice Gleeson led to her early retirement in 2003.

**Politicians **too have had profound contributions, both positive and negative and have not been immune from the long arm of the law.

Paradoxically it has often been the conservative side of politics who have made the most far reaching exemplary reforms such as Malcolm Fraser’s Crime Commission in 1982 and Nick Greiner’s Independent Commission Against Corruption in 1989. Both have been extremely effective in exposing and containing outrageous corruption. John Hatton, an independent politician, fought a relentless campaign against all forms of corruption.

On the darker side, the Fitzgerald Inquiry of 1988 in Queensland brought about the incarceration of The NSW Minister for Corrective Services, Rex Jackson in 1987 for collecting bribes in the early release scheme, and later Queensland Police Minister, Sir Terrence Lewis in 1989 for collecting over $700,000 worth of bribes protecting brothels.

It is this tolerance of corruption that makes **Merele Day’**s depiction of the activities of Harry Lavender in Sydney plausible and credible.

The Australian Identity #

Brilliant Creatures on the ABC with Howard Jacobson

In the early 1960’s Australia quietly emerged out of a cultural, intellectual and economic backwater which had stifled a number of aspiring intellectuals, including Robert Hughes, Clive James, Germaine Greer and Barry Humphreys found stifling and boring. They discovered “overseas” and became celebrated ex-patriots in the Mother country. Howard Jacobson had a difficult time understanding this as they made an instant splash in Britain as he went from Britain to Australia to teach in what he describes as a dynamic iconoclastic intellectual environment at Sydney University.

*“To the desert go prophets and hermits; through desert go pilgrims and exiles. Here the leaders of the great religions have sought the therapeutic and spiritual values of retreat, not to escape but to find reality.” *

― Paul Shepard, Man in the Landscape: A Historic View of the Aesthetics of Nature

Jacobson speculates about this paradox; perhaps it was the pressures of boredom, that a stultification produced such diamonds, the exhilarating dullness; such beauty and exhilaration. He points out the contradiction that Australia reveres its writers more than England does, yet Australians are suspicious of tall poppies.

Colonial Australia has a larrikin nature about it. Jacobson describes them as raw, hedonistic and bloody-minded, outlandish, hoodlums in the playground with a healthy disrespect for vaunted authority.

The Australian language is one of verbal acrobatics - kangaroo cuckoo, not mealy mouthed but honest and unpretentious. The language of extremism, full of exaggerated, over blown, overstating things; pushing the language of hyperbole.