Sir Garfield Barwick

Sir Garfield Barwick #

David Marr wrote a most powerful biography bringing to life Australia’s most powerful and controversial Chief Justice.  Sir Richard Kirby called it ‘The best biography written by an Australian; the best biography written about an Australian.'

One can not ignore the profound influence Evan Whitton has imbued on Australian legal journalism from the 1960’s.  Often a lone voice, crying in the wilderness, his fearless, but grounded scrutiny of the bastions of unwarranted privilege and prestige has been intrepid and unrelenting.  His edifying spirit lives on into eternity.

For forty years Sir Garfield Barwick stood at the centre of power in Australia. He was an advocate who saved the private banks from Chifley and fought to destroy the Communist Party. He was the Attorney-General who reformed the divorce laws and the Foreign Minister who put Australian troops in Vietnam. He was the Chief Justice who broke down the tax laws, dramatically advanced the power of Canberra and gave Sir John Kerr the constitutional imprimatur to dismiss the Whitlam government.

Marr’s Barwick is the portrait of a complex and driven man who began life in the Sydney slums, a man totally committed to the exercise of power and utterly certain of the rightness of his beliefs. It is also a remarkable insight into the inner workings of Australia’s supreme legal institution.

Robert Frost wrote: “I never dared to be radical when young/ For fear it would make me conservative when old”.

Early life of Barwick #

Garfield Barwick was born in Cooma, to a desperately poor, pious and devout Methodist family who moved to Stanmore in Sydney. His mother got him his first break through - a scholarship to Cleveland Street, then a year later to Fort Street High, the most prestigious State school in Australia, where his contemporaries included John Hunter and Bert Evatt. Though an inconspicuous student, solid success earned him Bursaries to Sydney University where he chose to study law.

In the earliest colonial mind sets the Sovereign as a key figure in the enforcement of law and the establishment of legal systems in different areas of the Commonwealth. As such the Sovereign became known as the *‘Fount of Justice’. * This anti-democratic

The Statute of Westminster

The Statute of Westminster 1931 is an Act of the Parliament of the United Kingdom to encourage self-government.  Passed on 11 December 1931, the act,[2] either immediately or upon ratification, effectively both established the legislative independence of the self-governing Dominions of the British Empire from the United Kingdom and bound them all to seek each other’s approval for changes to monarchical titles and the common line of succession. It thus became a statutory embodiment of the principles of equality and common allegiance to the Crown set out in the Balfour Declaration of 1926. As the Statute removed nearly all of the British Parliament’s authority to legislate for the Dominions, it had the effect of making the Dominions fully sovereign nations in their own right. It was a crucial step in the development of the Dominions as separate states.

Significantly Australia did not sign the Act until 1942, clinging to British ties for security reasons.  When Churchill attempted to keep Australian troops in northern Africa, blithely opinionizing, ´Let Japan take Australia, we’ll get it back after the war”, Curtin reacted sharply by ordering the troops home and seeking an alliance with America.

In the 1920’s John Peder, a conservative martinet dominated the law school in Sydney’s Phillip Street.  Peder believed prejudice and politics played no part in forming the law, instead his deeply conservative legal principles were arrived at by a process of assembling and reassembling axioms… The law was not immune to change, but it depended on the technical skill with its elements might be manipulated.  It did not evolve in a moral vacuum, but his analysis was a bulwark of orthodoxy.

In constitutional issues Peder believed in monarchical powers as a regulator of politics, able to dismiss governments, appoint minority administrators and dissolve parliament.  This had a profound effect on generations of lawyers and Judges, encouraging a scepticism about representative democratic parliaments giving the judiciary the final power to tether to protective monarchical power.  They equated attempts of Home Rule to that of Irish rebellions. The elite believe they have an ungovernable will - to govern – a born to rule mentality.

Herbert V. Evatt, whom Peder described as his most brilliant student, recognised the danger of this view pleading that the conventions which constrain this intervention of monarchical power should be put down in black and white, and transformed into an enforceable code.  This has been a continuing struggle from the Magna Carta -1215 through the ages.  Its glacial progress is characterised by two steps forward, one step back.

While no longer administering justice in a practical way, the Sovereign today should still retain an important symbolic role as the figure in whose name justice is carried out, and law and order is maintained.  Today real democracy bestows sovereign power on the “will of the people”.

Barwick’s socially conscious Methodist upbringing and early hardships forged a compassionate, caring disposition arguing cases for the disadvantaged.  As soon as he earned enough money, he supported his father and younger brother’s attempts to improve their financial viability.  However, when the business run by his younger brother, but set up in Garfield’s name and bank account, ran into difficulties, the banks and the large Oil Companies ruthlessly foreclosed on him, his failed court battles almost destroyed him at the age of only 27. 

*“The ordeal left Barwick with a breezy cocksure manner which kept the world at bay and fended off inquiry.  He worked relentlessly.  If work had failed him, the answer was to work harder.”   …The predicament was so arbitrary.  Why did the oil companies prefer to wipe him out rather come to some arrangement which would in time have got them their money back?  …  if he had been if he were a man of connections?      *(P.21)

If you can’t beat them; join them – but just not yet! 

Despite this, Barwick’s early cases and political philosophies were progressive advocating social justice.

Jack Lang #

When the banks turned on the Premier Jack Lang,  Barwick was one his most ardent and vigorous supporters in many campaigns with vocal and real assistance.   But the great members of the Sydney Bar were putting extreme pressure on Sir Phillip Game to sack the Premier.

The two fundamental issues were (1). that the banks were out to break the government of the day, (2) through the use of the questionable use of the power of the office of the Governor. It has been a recurring issue.  The removal of Bligh in the Rum Rebellion and the undermining of the reforms of Lachlan Macquarie are two precedencies.  The Dismissal of the Whitlam Government caused the greatest controversy as to who actually rules Australia; the people or vested interests. The Rudd Government was largely scuttled by the fierce opposition to his planned Super tax on mining.  The well-resourced Minerals Councils threatened a $200 million publicity campaign to destroy his government.  Julia Gillard caved in to their demands and in all cases, the Australian people have continuously lost out to powerful overseas magnates.

Senior silks wrote to Sir Phillip Game: “The Governor is entitled, on action being taken by his ministers in breach of the law of the land…where the such actions manifests the clear intent to frustrate such law…. To take steps under Letters Patent constituting his office to seek new advisors.

The Sydney Bar, through protective cynicism, entertained a withering contempt for men who set put to change the world. To believe that society could be better ordered was seen as naïve and to tinker with institutions only made them worse.  A closed world already, the Bar closed itself off further by counting all opponents as fools.  (pg. 19)

Now it became time to learn from the hard lessons - that to win you have no choice but to ingratiate yourself and join the superior forces.  High principles give way to pragmatic compromises, along a slow slide to apostacy, to complete surrender.  As George Orwell observed “only a socialist could have such contempt for ordinary people”.

Most Faustian pacts implode - where victories are partial and temporal, the surrenders total and irrevocable, Barwick’s Faustian bargain, became more of a Devil’s pact, where victory would be complete, power unlimited and there would be no surrender.

In the mid 30’s, Barwick’s fledgling career surged with increased litigation over the results of Lang’s Moratorium legislation as people looked for loopholes in it.    His success came not so much from his successes and his failures – respectable defeats.  Winning an obviously winnable case did nothing to enhance a barrister’s standing, but winning the unwinnable, or coming unexpectantly close, was the kind of performance on which reputations flourished. 

Barwick soon acquired the image of one of the greatest advocates of the Australian courts mainly due to his tenacious absorption of the critical issues at play, his ability to cut to the chase, his cunning forensic skills, his specious upending of reasoning, his ability to break down arguments to first principles – all simply to win at all costs.

*Even then he felt excluded from the big end of town.  It was not a matter of ability, but of background and connections.  At the top of the Bar was a kind of cartel which commanded the work, and he was not part of it. *(P.30)

Slowly Barwick drifted away from the Labor party and the Methodist past and became committed to climbing the ladder to success.  Success only came through hard work and he began to question the labour movement’s “right to strike”.  He became a Spencerian liberal – believing int “the survival of the fittest”.

Valuable insights into several important legal events in which Barwick was involved and through which he helped shape Australian political history."

One such event was Chifley’s attempt in 1947 to nationalise private banking. Marr fully captures the drama and political atmosphere of the time with a vivid account of the circumstances giving rise to the Banking Act 1947 (Cth), which purported to prohibit the carrying-on of banking business by private banks in Australia. Marr’s analysis of Barwick’s role in what was to become known as “the Bank Nationalisation Case” is gripping reading as he recounts how the banks retained Barwick to argue that the abolition of a bank was an unconstitutional check on the “freedom” of each bank to trade across state borders.

According to Marr, Barwick’s principal contribution to post-war Australia was the “extension and definition of the boundaries of authority in the Federation”.

World War II and Australia #

World War II saw the imposition of governmental power to control all aspects of life in Australia with temporary regulations enforced by almost unlimited sanctions for non - compliance.  Lawyers prospered, and Barwick came into his element. * He chose not to go to the war nor turn his talents, as some older barristers did to war work, but to stay in private practice…(.*P. 33)  He maintained most war regulations were in breach of the simple precepts of the free enterprise man and held them in contempt.  He got lots of work.

In 1941, after 15 years at the bar he took silk and became a King’s Counsel and was soon very successful. He had finally broken into the cartel.

Again, relying on his persuasive skills – “a power to simplify and illuminate was Barwick’s greatest tool of persuasion.  He was a master of it, of perfect exercise of insight, ingenuity and unobtrusive eloquence”.

We should always allow for the high folly of high minds. The Best and the Brightest and The Smartest Guys in the Room often let us down denoting, an elite catastrophic failure that stretches from ancient times to the Crimean War, to WWI Generals, to Vietnam to Iraq to the GFC of Wall Street – even the upper echelons should concede that they often get it spectacularly wrong and are also prone to serious misjudgements.

As Shakespeare shows us in Brutus’s observation in Julius Caesar:

But ‘tis a common proof, *
That lowliness is young ambition’s ladder,
Whereto the climber-upward turns his face;
But when he once attains the upmost round.
He then unto the ladder turns his back,
Looks in the clouds, scorning the base degrees
By which he did ascend.*

Public life routinely features sensations, figures in whom people invest great expectations based on nothing more than a captivation with their radiant personas, like Macbeth, Mugabe, Tony Blair, Aung San Suu Kyi, …. who, promise much but deliver little, proving that fighting and suffering for the cause of freedom is no guarantee of wise governance, and that today’s radical reformers are likely to be tomorrow’s persecutors?  Examples include:  Oliver Cromwell, Robespierre, Lenin, Mao Tse Tung…..

Call it effrontery, audacity, brazen chutzpah – whatever - some people in high positions begin to prize their privilege above all else, often abusing their limited power by flouting the law of the land. 

They say every town, every institution, every workplace, every home has its own unspoken caste system. For a minute, an hour, or days on end we’ll inhabit a small universe with its particular power structures and then bounce out into another. In some we are powerful, in some we are at risk. One minute you’re a rooster and the next you’re a feather duster.  Outrageous displays of naked power plays do not reflect favourably on perpetrators and can in effect create impressions of celebratory ignorance and place the entire institution into disrepute.

Menzies and the misrule of law #

  Faith, here’s an equivocator, that could
swear in both the scales against either scale
Porter in Macbeth

Though the above lines most likely refer to closet Catholic Priests who could pretend to be Protestant, they can also apply to lawyers who can argue whatever side is buttering their bread.  Barwick, bankrupted by the banks and the large Oil companies in 1930, represents them in the 1940’s.  His fee for challenging Chiefly’s Bank Privatistion Bill both against the High Court and in London’s Privy Council earned him *“a princess’s ransom”.  *Later when asked to hold a retainer for one of the Oil companies who had treated him so ruthlessly, he demanded a ruinous fee.  When they baulked, he threatened to represent their opposition and they cravenly acquiesced.

Suddenly the doors to the elite Barrister’s circle was opened to Barwick *“not by his fawning or apeing the manners of the establishment, but because he was needed and his ability acknowledged”.  *

*He retained his larrikinism.  Anxious to get back to his Chambers early, and knowing how Latham ran his court by the clock, Barwick slipped back into the High Court at lunch time, climbed the wall and put the clock forward by ten minutes.  *(p. 76)

In England, Barwick had become an Anglophile and when he met Menzies, they became good friends and Barwick became the government’s chief barrister.

Barwick also opposed Chiefly in the latter’s intent to monopolise the National Airlines, prohibiting private competition.  Barwick successfully convinced the High Court that Chiefly was going beyond reasonable regulation guaranteed by the constitutional provision of absolute free trade and commerce. This win created the two airlines policy for the next forty years.  It also marked the opening skirmish of a socialist war.

In 1950, Menzies went all out to destroy the Communist party.  He wanted to purge the Public Service of all communists.  While Menzies wanted little other change, he felt that like America, Communists and socialists were the real evil.  The Liberal Party’s manifesto supported free speech, free association – but not for commies. While both Chiefly and Evatt also wished to curb the Communist’s influence on Trade Unions, Menzies wanted them outlawed - purged.

When Menzies’ 1950’s legislation to outlaw the communist party was challenged in the High Court, Evatt and Barwick switched sides, the former for the Unions, the latter now for the government.  Menzies exploited the fear factor to the maximum.  He immediately smeared the entire Labor Party with being communist sympathisers.  The “Reds Under the Beds” lasted some forty years until Bob Hawke ridiculed Malcolm Frazer’s claim that if Labor was elected in 1983, people would have to keep their money under their beds.  Hawke’s witty reply was *“No, that’s where the Reds are”.  *The Australian people laughed all the way to the polls.

Fear, has also been a controlling device by unscrupulous rulers.  It kept the convicts from escaping in the early years of the colony.  Russia has always been a convenient bogey man to control the masses.  In 1854, the imminent threat of Russia gaining access to an ice-free port was enough for both NZ and Australia to fortify their borders and build a telegraph line from Darwin to Adelaide.  The Russians never got out the Black Sea.

When the Reds under the beds mantra ran out of steam, the latest bogey-man has become asylum seekers who will bring terrorism to Australia and a ruse under the guise of National Security.  Someone needs to read our politicians the tale of the Boy who cried wolf.

Menzies attempt to outlaw the communist party failed in the Senate, the High Court and in a plebiscite because it violated our basic human right.  The proposal was that all it needed is a declaration by 3 Ministers and the Governor General.  There could be no trials or appeals to the courts. When Chiefly died, Evatt took up the challenge to defeat the referendum. Evatt’s main thrust was that the passing of the referendum would erode all citizen’s civil rights and guarantees to liberty. It could eventually apply to any group the powers that be wanted to ban.  He ran a vigorous campaign against all odds and won.

Had Menzies won, it could have ushered in a policy as repugnant as The Inquisitions or Witch Trials of medieval times.  

Marshall McLuhan noticed**:  **“*Ours is the first age in which many thousands of the best trained individual minds have made it a full-time business to get inside the collective public mind.  To get inside in order to manipulate, exploit, control is the object now. And to generate heat, not light, is the intention.”*

Noam Chomsky warns us that “propaganda is to a democracy what the bludgeon is to a totalitarian state.”    Adolf Hitler had already discovered that *“Through clever and constant application of propaganda, people can be made to see paradise as hell, and also the other way round, to consider the most wretched sort of life as Paradise.”      *

For saving Menzies from total devastation of his defeat, Barwick was knighted.  In my mind, awards for political patronage “*drive the honours system into deeper disrepute. The more it is abused, the more people will come to regard it as at best arbitrary, and at worst corrupt.”  Flynn. *

In 2014, Lynton Crosby, “a political strategist” was paid more than 4 million by the British Conservative party, for winning David Cameron a second term, and was knighted for “services to the British Public” and named Australian of the Year.  Astonishing!  And they wonder why we are cynical and drowning in a sea of distrust, thoroughly disillusioned bordering on despair. 

Aristotle wrote “Dignity consists not in possessing honours, but in the consciousness that we deserve them”, and Mark Twain opined: “It is better to deserve and not have honours than to have them and not deserve them”. 

And they wonder why politicians are the least respected members of society.  

Barwick later receives the most restricted Knighthood- A knight Grand Cross of the Order of St. Michael and St George.  (GCMG) Derisively referred to “God Calls Me God).  Barwick was duly impressed.  Vanity is infinite.

His ability to argue for or against either side is reflected in marketing boards which attempted to control the supply and demand. When one day potato growers in Queensland attempted prohibit outside potatoes, he fought for them.  The very next day he could argue that NSW Hide and Leather traders should have the right to sell their products interstate if they liked.  To him it didn’t matter whether he won on principle or not.

After an undistinguished political career where Barwick managed to alienate most of his party and colleagues in the cabinet, the situation became so tense that Menzies offered him the recently opened position as the Chief Justice of the High Court.  He had never been a Judge, yet by political patronage he is suddenly promoted beyond his competence. You would have to wonder how the fellow judges on the High Court would feel about this promotion of misplaced power and bullying superiority.” #

As Chief Justice, his position that the law “should accommodate the activities of traders in the maintenance of the freedom of such trade and commerce”. In an earlier decision regarding interstate trade in eggs where he had stern words for those “*who believed that the needs of consumers might override the liberty of traders”.  *

*It is not enough that there are perceptible reasons for the enactment of law by the legislatures pursuing some policy conceived to be for the public good or general welfare”. *(p. 217)

There are legal historians who contend that courts inappropriately politicize our truth-seeking endeavours, but, as science shows, objective truth involves the convergence of multiple observations and perspectives. Moreover, history shows that the law has rarely, if ever, been insulated from politics.

The five basic pillars of ethical obligations of all decision making are: full discovery of facts, the accurate testing of assertions, fair balance of presentation, honest appraisal of evidence, and conclusions based on substantive foundations.

The greatest danger is that some Judges no longer see themselves as arbiters between right and wrong, but as mere adjudicators of debating skills, or critics of theatrical rhetoric between skilled highly paid advocates. Judges should not be easy prey for eristic arguments, dark legal arts or the finery of the law.  *Whatever you do, you should do well; but it is even more important to do some good.  *

Mindsets change in regard to the court’s relationships to government.  During war, the courts tend to support distasteful security regulations; invasions of liberty, extensions of government power, which peace will sweep away, back to a distrust of government overreach.  The two must check each other’s privilege.  When the court’s overreach their purview, they too must be corralled, bit harnessed and forceable reined in. 

Power, in a liberal democracy is controlled by efforts made to define and limit power, often by means of checks and balances.

The three tiers of government; Legislative, Executive and the Judiciary need clear separation of powers and checks and balances to monitor each other to ensure not one of them oversteps their power.

Like the three nymphs of the Hesperides, given the task of guarding the golden apples, had to watch each other.  Not trusting them, Hera also placed in the garden a never-sleeping, hundred-headed dragon named Ladon as an additional safeguard.  So too the three bodies of government have to keep an eye on each other to make sure each one remains true to their calling.  We the people have the onerous task of Ladon – vigilantly guarding our hard-won freedoms.

Despite her vigilance, the Apples were twice snaffled, once by Atlas for Hercules, and also by Discord, the goddess of strife, AKA Eris, the Greek goddess of mischief.  Eris (casuistry, sophistry, eristic reasoning, specious arguments…) is present in presidential debates, in court rooms and wherever people are talking not to discover truth but to win with whatever it takes. 

True Democracy is an ideal of equality; an illusion that has been hijacked by vested interest groups, government institutions, political parties and lobbyists.   In America the Military Industrial Complex has been wagging the dog since the end of WWII.  The FBI, the CIA, NASA, Gun Lobby, the Medical Industry and the judiciary have untrammelled power that elected representatives cannot control.  A strong country needs a strong body politic.

The hallmark of a true democracy is a government that acts in accordance with the will of the people, not a government whose preoccupation is to con its citizenry, whilst looking after its mates.  Little wonder our political system is profoundly struggling to maintain functionality, credibility and legitimacy in the West.  Politicians cave in to powerful lobbyists or business interests rather than the Public Interest.  Even in the most democratic countries, maintaining power trumps integrity by sacrificing truth for pragmatic concerns.  

Owen Dixon, attempted to be apolitical, however after the war, after 15 years as a dissenter, he too came around joining the post war swing to the right – against government controls, regulations and bureaucratic regimentation. Despite this, his position on outlawing communists was clear and high minded on the side of social democracy: “In times of freedom, no government has the right” to legislate for itself, to defend itself from any opposition.

Dixon and Barwick were at odds on a number of issues, especially Section 92, resulting in many appeals by Barwick to the British Privy Council. 

Canada’s appeals to London’s Privy Council ended in 1947, India in 1949, South Africa in 1950.  Australia waited until 1972, under Whitlam. 

Barwick relied on his persuasive skills – “a power to simplify and illuminate was Barwick’s greatest tool of persuasion.  He was a master of it, of perfect exercise of insight, ingenuity and unobtrusive eloquence”.

What irked Barwick is that his clever tactics had little effect on Dixon. He could easily intimidate the other High Court Justices by attractive arguments, they suspected flawed, but were hesitant to question them in case they had missed something.  “*They were afraid he would turn their questions back on them and make fun of them”.  *

Owen Dixon, interrupted Barwick with rude and bitter remarks:

“Why Sir Garfield?  Just because you say so doesn’t make I true”.

Dixon liked to deal with philosophic reflections in the pursuit of judicial truth. Barwick was there only to win – with whatever it takes. (P. 125)

Whitton on Barwick #

Barwick and Mundroola

‘The judgment of the Lionel Murphy Case is the worst miscarriage of justice since the great Danton was bodily placed under a guillotine by a conspiracy of his colleagues. It is impossible to have a fair trial after two years of strongly anti-Murphy stories by the Charlotte Cordays* of the Sydney press. This, to us men in the street, has been an obvious political setup from the start - with racist overtones in the sense of a pack of WASPS suddenly discovering an unashamed, unconquered Celt approaching a powerful social position - the Chief Justiceship of Australia.’

 [* There is a minor problem here. Mlle Corday stabbed M Jean-Paul Marat on the basis that he was too bloodthirsty: M Georges Danton went to the guillotine on the ground that he was not bloodthirsty enough. It is thus unclear whether Mr Beck wishes us to equate Murphy with Danton or Marat, or both. However, we catch his general drift.]

 ‘…the media dropped the (Mundroola) matter the moment (Barwick) declared himself not guilty. Why? Because the Chief justice, like the Queen, can do no wrong, though a minor justice may? Or because Barwick and Murphy belonged, in their salad days, to different political parties?’

 - Professor Russell Ward, Emeritus Professor of History, University of New England.

The proposition thus is: Chief Justice Sir Garfield Barwick, hero of the Right, was saved by the Right and the press; Justice Lionel Murphy, hero of the Left, was brought down by the same alliance. The Mundroola affair, and the role of the press in it, thus requires some examination.

Both Barwick and Murphy were failed politicians who found soft landings on the High Court; they owe their heroic status to their periods on the Bench. Malcolm Turnbull, in The Bulletin in June 1980, judged three of Barwick’s actions to represent a ‘misuse of power:’

Sitting alone in 1974 on a constitutional case involving Senator James Webster, a member of his former coalition (‘wrong in law… also wrong in principle’;)

Giving advice to the Governor-General in 1975 (‘unforgivable’;)

Inviting, in 1976, when the membership of the court changed, the re-litigation of a matter (the constitutionality of Senators from the territories) on which he had been on the short end of a 4-3 decision the year before (‘Gibbs and Stephen… included some dark words about the motives for the re-litigation.')

Elements of the Right may be assumed to have derived a deal of satisfaction from such misuse, as well as from the agility of Barwick’s mind on the matter of ‘tax avoidance.’ In 1980 Senator John Button quoted him as saying to a barrister who had used the term: ‘Look, you cannot call this ‘tax avoidance’. If there is not tax to be paid, it has not been avoided, has it?’

Barwick has said he started Mundroola Pty Ltd in 1946 for the benefit of his two children. He stated that it was a ‘family’ company. The most substantial shareholder, with 4000 of the 4800 deferred shares, until 1974, was his close friend and business associate, Mr Leslie J. Thompson, a director of Ampol, Brambles, and CSR Chemicals. Barwick had no shares, but was managing and governing director. He said his wife had ‘a small shareholding’. In fact, she held 850 of the 852 ordinary shares. From 1964 to 1974, Mundroola bought land for $162 161, and sold land for $595 740. At June 30, 1973 it held shares which cost $167 548 and which had a market value of $357 880. While Barwick was Chief Justice, cases involving Ampol, Brambles, and CSR, in which Mundroola held shares, came before him. He did not declare an interest in those cases.

A number of questions remain unanswered about the Mundroola affair. Among them, raised by Senator Gareth Evans in the Senate on 29 April, 1980, were:

  1. Was Barwick one of the unnamed directors to whom Mundroola made loans at low, or possibly, non-existent, rates of interest?

  2. Was Barwick one of the unnamed directors to whom directors’ fees were regularly paid?

  3. Did Barwick receive the use of his Careel Bay house, which was owned by Mundroola, rent-free, or at an abnormally low rent?

Section 34 (b) of the Crimes Act 1914 provides that ‘any person who… being a judge or magistrate, wilfully and perversely exercises Federal jurisdiction in any matter in which he has a personal interest, shall be guilty of an offence.’ The penalty for a breach is imprisonment for two years. If, therefore, the answers to any of the above questions is yes, Barwick might be judged to have a pecuniary interest in Mundroola, and might thus have been at risk of being charged under the Crimes Act.

The Barwick (or Mundroola) affair ran for barely more than three weeks in April and May 1980. The sequence of events is significant.

Late in 1979, the Labor Party got a tip about Mundroola, and began an inquiry. The Barwick connection, however, was first publicly revealed on 18 April, 1980. It was then reported by Paul Malone in The Australian Financial Review, that the NSW Corporate Affairs Commission had approved plans to strike Mundroola off the register for not lodging annual returns since 1973. Mundroola filed the missing returns six days later. These stated that Barwick had resigned as a director on 31 December, 1974. On Saturday 26 April, The Age ran an article which stated that Barwick, without declaring an interest, had sat in judgment on cases involving corporations in which Mundroola had shares. Senator Gareth Evans gave notice in the Senate on Monday, 28 April that he would next day move that a joint parliamentary committee be appointed to inquire into the Mundroola matter.

The then Prime Minister, Malcolm Fraser, got in first. At 4.15 pm on the Tuesday, he produced a letter (dated the previous day) from Barwick absolving himself of all blame. Barwick’s letter said he had no proprietary interest, which was not an issue, in Mundroola. Barwick did not address himself to the question of possible pecuniary interest. He said he could not believe that any fair-minded person would have entertained any doubts about his impartiality in appeal cases. Fraser said no inquiry was needed, or would be granted. He said: ‘The decision as to whether a conflict of interest situation arises is one for the individual to make.’ Bob Ellicott, Barwick’s cousin, and then thought to be a front-runner to succeed him, produced a brief (294 words) opinion, by Solicitor-General Morrie (later Sir Maurice) Byers. Parts of this opinion supported Barwick’s position, but the opinion appears to have some internal contradictions.

Evans began detailing his evidence, the product of some months of research, in the Senate at 5.11 pm, four minutes before the Barwick proceedings concluded in the House of Representatives. The Senate debate did not end until just before 10.30 pm.

Two things followed from this timetable:

The Barwick-Fraser-Byers assertions could not, and did not, respond to the questions, noted above, or other matters raised in Evans' speech.

Because of media deadlines, the Barwick-Fraser-Byers assertions would necessarily command the bulk of the media coverage that night and next morning.

Evans' speech was grave and restrained. At the end, he said: ‘I make no suggestion that I have mounted other than a prima facie case … only (a parliamentary) inquiry would give full opportunity to the Chief Justice to put on record … all the matters about which this Parliament and the Australian community must be satisfied before this matter can ultimately be put to rest.’

Senator Don Chipp, who then commanded a party of two Australian Democrats in the Senate, said ‘that the Chief Justice has been indiscreet, that he has been arrogant, that he has been foolish … Surely in the Senate tonight an unanswerable case has been made that the Chief Justice should have disclosed at least his interest in Mundroola and its transactions . . .’ Chipp said that, ‘reluctantly,’ the Australian Democrats would vote against Evans’s motion, nor, to avoid impertinence to Evans, would they move an amendment. But, he said, if there had been a motion ‘to censure the Chief justice or express concern about his lack of conduct, we would have voted for it.’ However, Chipp concluded, ‘to have a parliamentary committee investigate the conduct of the Chief Justice of the country does not make sense to me, and, therefore, we cannot support it.’

Did the press (and, come to that, the Labor Party) drop the Barwick / Mundroola matter ‘the moment (Barwick) declared himself not guilty’?

In The Australian Financial Review the next day, 30 April, Mungo MacCallum wrote: ‘As a number of people on both sides put it one way or another after the event, their moods varying through anger, frustration, uneasiness, and sheer puzzlement: What were they trying to hide?’ In a leading article next day, the Review said the issues were unresolved.

The Australian on 1 May reported Mr Roderick Meagher, president of the NSW Bar Council, as saying that the facts disclosed in Barwick’s letter completely answered ‘the scurrilous and politically-motivated allegations … made against him. It is regrettable that such allegations (of conflict of interest) should have been made at all.’ The Australian, in a leading article on 2 May headed ‘When the smearing has to stop,’ said: 1… Sir Garfield’s letter, tabled quite properly by the Prime Minister on Tuesday, gave a full, reasonable and persuasive answer to the charges being bandied about in Parliament and in some sections of the press … This is intended as our last word on the matter. Let us urge the same on everybody.'

On the same day, a long comment piece by Russell Barton in The Sydney Morning Herald traversed Evans’s speech and the holes in the Barwick-Fraser-Byers assertions. The outstanding questions were again reviewed in The National Times on 4 May by Stuart Simson and Marian Wilkinson. They reported Evans as saying that several important questions still appeared unresolved. A week later Simson reported that on 2 May in the ACT Supreme Court Justice Francis Xavier Connor had, by implication, torpedoed Fraser’s theory that it was up to the judge to decide whether or not he was in a position of conflict of interest.

This was virtually the last reference in the press to the matter. Nor was it revived when in May 1982 a Senate Estimates Committee discovered that a Cabinet meeting on 10 February, 1981, the day before Barwick retired, made a special ‘arrangement’ whereby he was given amenities worth about $60 000 a year, including a full-time car and driver worth $32 000.

The Mundroola affair touched the integrity of one of our most important institutions, the High Court, yet it now appears that many got it wrong. For Barwick, assuming he had nothing to hide, and in the interests of the institution, it may have seemed proper to have welcomed Evans’s request for a parliamentary inquiry, and to have made a full disclosure on the outstanding questions. Fraser likewise. Sections of the press, notably in the Fairfax group, appear to have been inclined to pursue the matter. But, in the face of Barwick’s silence, the Government’s determination to stonewall the issue, and the absence of new material, they may have found it difficult to get a fresh toehold on the affair.

Nor did the Labor Party seek to clear up the outstanding questions when it got into office. A spokesman for Senator Evans told me, in June 1985: ‘Senator Evans did not institute any inquiries when he became Attorney-General because the facts relating to impropriety and conflict of interest had been established clearly, as set out in Senator Evans’ speech to Parliament. There had never been any suggestion of illegality or criminality.'

It may be that the main reason the Barwick matter was handled badly was that the time was out of joint. 1980 was not 1984. As exemplified by Senator Chipp’s remark in the Senate, in 1980, few people, one suspects, were ready to face the possibility that a Chief Justice could be involved in dubious practice. The watershed came in 1983, when the ABC’s Chris Masters found some Sydney magistrates prepared to state publicly that a magistrate had sought to fix a case. The Wran Royal Commission, and the imprisonment of a magistrate for four years, followed. Nothing, in terms of questions about the administration of justice, has been the same since.

One guesses that after that, if Barwick were still Chief Justice, if Fraser were still Prime Minister, and if Senator Chipp had the balance of power in the Senate, it would be unlikely that the matter could be disposed of peremptorily with a parliamentary manoeuvre.

As far as is known, Barwick’s brother judges then on the court, Sir Ninian Stephen, Murphy, Sir Harry Gibbs, Sir Ronald Wilson, Sir Anthony Mason and Sir Keith Aickin, did not decline to sit with him, or invite him to demonstrate that he in fact had no pecuniary interest in Mundroola. Evans did not pursue inquiries into it when he became Attorney-General in 1983. The matter is thus still unresolved.

However, in a Senate debate on fringe benefit taxes on 4 June 1986, the Labor Finance Minister, Senator Peter Walsh, said he could remember a case concerning someone who had been a director of a company called Mundroola and had lived in a house, also called Mundroola, which was owned by the company. Walsh went on: ‘He had been living in that house and had been a director, according to what the Corporate Affairs Commission records showed, from 1974 to 1981 (sic). Under those circumstances, either that director was obliged to include in his personal tax return - as imputed income for a company-occupied house - some notional rent, or, alternatively, the company was required to include in its company taxation return the rent received from the director-tenant of the company-owned house. The tenant concerned at the time was the Chief Justice of the High Court of Australia. Very conveniently in 1981 (sic), a letter of resignation became public which was dated 1974. The ink was still wet. In other words, the Chief Justice of Australia at that time was in a situation, by any prima facie grounds of evidence, in which he was a tax evader. To get himself round this problem, he became a forger’. Opposition Finance spokesman, Senator Anthony Messner, said Walsh’s remarks were irrelevant. Walsh replied: ‘The case to which I referred is highly relevant because the prima facie evidence shows that the Chief Justice of Australia between 1974 and 1981 (sic) was a tax evader.’

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Anthony Mason On National Security #

In 1980, the High Court had something to say about embarrassment and national security in the famous “defence papers” case where the government wanted to stop Fairfax publishing early extracts from a forthcoming book by Richard Walsh and George Munster.

Talk about secrets, this book was chock-a-block full of them: classified documents concerning international treaties, foreign intelligence services and military bases, among other things.

It’s worth remembering today what Justice Anthony Mason wrote then:

“It can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticise government action.”