No wonder we have lost confidence in institutions when Justices of the High Court act improperly
Jenny Hocking has reminded us many times of the improper behaviour of two High Court judges at the time of the Whitlam Dismissal; Sir Garfield Barwick in briefing and encouraging the Governor General to dismiss the Whitlam government. We also learnt about the role of Sir Anthony Mason, later Chief Justice, who not only coached the Governor General on what he might do to dismiss Gough Whitlam but on the afternoon of the Dismissal advised the Governor General he need not see the Speaker of the House of Representatives who was kept waiting at the gate of the Governor General’s residence for an hour. The Speaker of the House of Representatives was waiting to tell the Governor General that Prime Minister Malcolm Fraser had lost the confidence of the House of Representatives and that Gough Whitlam should be sworn again as Prim Minister.
We know only too well the role of former High Court Judge Dyson Heydon in the Royal Commission designed by the government to embarrass Bill Shorten and Julia Gillard.
I had an acquaintance with another Justice of the High Court when I was on the Council of the Order of Australia. In my book, ‘Things you learn along the way’ published in 1999 I said
‘As Secretary of the Department of Special Minister of State I was a member of the Council of the Order of Australia for about 12 months in 1983-84. The Chairman of the Council was Sir Harry Gibbs, the Chief Justice. I proposed that Lionel Murphy receive an AC, the senior award in the Order of Australia. Gibbs asked that the matter be deferred as he would like to consider it further. At the next meeting, Gibbs said that he had spoken to Murphy and Murphy was not interested in such an award. I was very surprised. My proposal lapsed.’
But that was only half the story. Several years later when I was on the board of Qantas from 1986-89, I had a discussion with Ray Gietzelt who was also a member of the board. We privately discussed the Order of Australia. Knowing that Ray Gietzelt had been a very close friend and industrial colleague of the late Lionel Murphy, I expressed surprise that Murphy had declined any interest in an award in the Order of Australia. Ray Gietzelt said that he also would be very surprised if Murphy had so declined. He said however that he would speak to Ingrid, Murphy’s wife. At the next Qantas board meeting, Ray Gietzelt went out of his way to tell me that he had spoken to Ingrid Murphy who was also confident that an offer of an award in the Order of Australia had never been made to Lionel Murphy.
All the key people in this matter are now deceased, so it is unlikely that we will get any further clarification.
I don’t believe that Gibbs raised the issue with Murphy. I was misled.
John Menadue is the Founder and Editor in Chief of Pearls and Irritations. He was formerly Secretary of the Department of Prime Minister and Cabinet under Gough Whitlam and Malcolm Fraser, Ambassador to Japan, Secretary of the Department of Immigration and CEO of Qantas.
Comments
10 responses to “JOHN MENADUE: Justices of the High Court”
Thanks for the reminder John. Jenny Hocking has done the story of Australia a great service with her research and writing. Accurate history is important more today than ever. Maybe Barwick never forgave Whitlam describing him as a “truculent runt” during Barwick’s less than stellar time in parliament. Will read your book BTW.
John you are so right.
Open and transparent governance is an ideal that is beyond our reach in practical terms.
Organisations like the RSL strive to achieve it, but it seems to slip through the grasp of those who seek to provide a means by which only honest acts are possible.
I’m presently involved in trying to correct a public Government document in which a statement attributed to me is untrue (and can be proved by a recording of proceedings). I was informed that the document was ‘functus officio’ and I had to apply to the Federal Court for any correction to be made. One of the criteria for my application to the Court was that I had to show that I had the capacity to pay the respondent’s costs. I was advised by the Government agency involved that these were likely to be “$40,000 to $70,000 or above”. Not having this amount of disposable assets, means that even the rule of law is unavailable to me.
Open and transparent governance, the rule of law … why do we still believe in these ‘ideals’?
A quick word BC: ‘Open Government’ was an aspirational (not that that term was used) idea of the 60s & 70s… and I still fight for it, as do Others! – losing but honourable – a forlorn hope? CoVid 19 might effect a Comeback – unexpectedly.
The ‘tip’ for you is this: ‘Government agencies’ are quite often, in my experience, misinformed, aka ignorant. Many’s the tale an OP (old person) could tell after 50+ years in the lists…
Cynical and deplorable as it might seem : Securities For Costs are – or were – routinely – ignored by litigants in our legal systems, signed-away like a municipal licence along with all the other paperwork which constitutes an action at Law.
Utterly-deplorable, dishonest, but gruesomely-contemptuous of the attempt to obstruct legal process. Deserves to be challenged…
This might cheer you up: When some defendants in P18/1991 & sequelae in WA in the ’90s tried bullying me (counsel) with questions about costs – who would pay? Of course we had no intention of losing so it was not WE who would be liable to pay Costs – I answered flippantly: Of course we’ll give security for Costs : What would you like: a kimberlite pipe? Cheeky, but good for the spirit!
Murphy’s greatest offense against the rule of law, and against the free press, was to make divorce far less profitable for lawyers and for gossip-mongering journalists.
What Ms O’Grady says is all very well. I thought that John Menadue’s point was that the former Chief Justice had made an undertaking to him which he did not honour.
There may have good reasons for that action — but I’d think that Mr Menadue has legitimate grounds for feeling that he had been deceived.
Thank-You, Dr Carmody.
After a distant acquaintance of half-a-lifetime I feel we might drop the honorific – do, call me Rosemary.
Your point is absolutely accurate and I thought even as I Sent it that readers would see I was missing the real point: that JM ‘had been misled’. By Sir Harry.
And we all were misled (unknowingly at the time) by Sir Anthony Mason, a judge I admired and respected, even liked, until I read Jenny Hocking’s slim volume.
And I take, also, the intrinsically most important point about JM’s ‘post’ which is the deception aka lie. (If, indeed, it was. We can’t be absolutely sure that Sir HG did not speak to LM about the matter.) Not that I care much. But I DO care about being lied-to. And I think it’s splendid that JM blows the whistle – on anybody who does so.)
I’m delighted that Dr Carmody has corrected my reasoning in this matter. He does this sort of thing so well. I do not, being not divine, believe that forgiveness is within my power – but Dr Carmody lives forever in imagination for his blissful piece about the state of quality journalism: Who Is Joan Sullivan? He is right in this instance, too.
This story is a clear illustration that politics and partiality both play significant roles in our Honours system.
The unbalanced representation of politicians and senior civil servants in the highest levels gives support to that view, i believe.
Within particular fields and professions, the relativities are often curiously skewed. In medicine and academia — just to take two areas with which I have some familiarity — I am often seriously bemused (affronted, at times) by the ways in which names are strewn amidst the various “levels”. Those who receive the highest-ranking awards are not, in other words, demonstrably superior to or more worthy than those in the “lower ranks”. Likewise, certain professions seem to be more highly [but not justifiably] esteemed than others — nurses or social workers compared with doctors, for example.
Altogether, such disparities and failures seriously compromise the repute of our “system”. A thorough reassessment is overdue.
Couldn’t agree more about the need for reassessment. It certainly isn’t the case, however, that senior public servants are overly represented at the highest levels. It may have been once, but in recent years their contributions to our nation have been woefully under-recognised by the Council. This year’s Australia Day honours list provides a typical example. Perusing the 64 awards in the top 2 categories – AC and AO – I found only 5, all AOs, that went to people who might be described as public servants – 2 state police commissioners, a state surveyor-general, a CSIRO scientist and an official secretary to a state governor. (I lost count of the numbers of academics, scientists and members of the medical profession). Either the modern Council is biased against public servants or the people who would be expected to nominate them don’t bother because they know it’s a waste of time (or, as I suspect, both are true).
When it comes to Australian Honours I’m pretty much of the Nick Gruen persuasion… and I have no special brief for Sir Harry Gibbs, although on the very few occasions I met him I was pleasantly-surprised at his equable (and non-sexist) behaviour towards a gormless new practitioner…
But I do wonder whether, in the years 1983-84, when JM was a member of the Honours Council and LM was headed for trials on criminal charges, Creighton Burns was defending The Age Tapes and Jim McClelland was heading for an uncomfortable decision about whether to perjure himself on LM’s behalf (he did) – if Sir harry Gibbs might not have had some inside information and decided that, as far as he was concerned he was not about to approve an award to a person he thought might be bringing the office and the Court into disrepute. QED, John?