¹ Traditionally, the independence of the judiciary has been secured by a dual protective scheme. First, judges have security of tenure. They cannot be removed from office save for proved misbehaviour. Secondly, their remuneration may not be diminished during such time as they hold office. See, eg, Constitutions 72(iii). Recently, Australian judges have argued that further protections are required. See generally L J King, “Minimum Standards of Judicial fudependence” (1984) 58 ALJ 340; G Green, “The Rationale and Some Aspects of Judicial fudependence” (1985) 59 ALJ 135; AF Mason, “Judicial fudependence and<.the Separation of Powers - Some Problems Old and New'' (1990) 24 UBC L Rev 345 republished in (1990) 13 UNSWLJ 173; M D Kirby, “Judicial fudependence in Australia Reaches a Moment of Truth” (1990) 13 UNSWLJ 187; R E McGarvie, “The Functions of Judicial fudependence in a Modern Democracy” (1991) 1 J of Jud Admin 3; Australian Bar Council, Statement on the fudependence of the Judiciary, Victorian Bar News, No 77, Spring 1991, 18.

² See generally J N Shklar, Legalism: Law, Morals, and Political Trials (1986); W Friedmann, “Legal Philosophy and Judicial Lawmaking” (1961) 61 Col L Rev 821. The foremost modem Australian exposition of the positivist view is Sir Owen Dixon's “Concerning Judicial Method” (1956) 29 ALJ 468. This address echoed remarks he had made on the occasion of his elevation to the office of Chief Justice: see (l 952) 85 CLR xiv and O Dixon, Jesting Pilot (1965).

³ J N Shklar, supra n 2, 8.

⁴ M Sexton & L W Maher, The Legal Mystique: The Role of Lawyers in Australian Society (1982) Chs I & 4; JG Griffith, The Politics of the Judiciary (1977).

⁵ For details of the allegations levelled at Murphy J, see Senate Select Committee on the Conduct of a Judge, Report to the Senate, Parl Paper No 168 (1984); Senate Select Committee on Allegations Concerning a Judge, Report of the Senate, Parl Paper No 271 (1984); Parliamentary Commission of Inquiry, Special Report and Special Report Dealing with the Meaning of “Misbehaviour” for the Purposes of Section 72 of the Constitution, Parl Paper No 443 (1986). For an account of the appeals arising out of the first trial see R v Murphy (1985) 158 CLR 596; R v Murphy (1985) 4 NSWLR 42. Justice Murphy was acquitted on the remaining charge at his second trial.

⁶ For some of the background to Judge Foord's case see John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706.

⁷ Qld Parl Deb, 1989, Vol 310, 5146-5158 (30 May 1989) (Motion for Removal), 5215-5260 (7 June 1989) (Leave to Appear at Bar of House and Address by Vasta J), 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 MD Kirby, The Judges (1983); J B Thomas, Judicial Ethics in,1ustralia (1988); M McLelland, “Disciplining Australian Judges” (1990) 64 ALJ 388; J B Thomas, “The Ethics of Magistrates” (1991) 65 ALJ 387. See also R Cranston, “Disqualification of Judges for Interest, Association or Opinion” [1979] Public Law 237 and R Thomson, The Judges (1987), which contains interesting observations by former and serving judges (some of whom identify themselves) on the role of the judiciary in Australia.

⁸ AW Bradley, “Judges and the Media -The Kilmuir Rules” [1986) Public Law 383, 383-384.

⁹ See generally S Shetreet, Judges on Trial (1976); J B Thomas, Judicial Ethics in Australia (1988).

¹⁰ In New South Wales recent legislation has enlarged the powers available to discipline judges. See Judicial Officers Act 1986.

¹¹ It is, however, customary for the leaders of the legal profession to speak publicly in defence of a judge subjected to attack. There is also the potential which judges have for responding by invoking the scandalising category of the law of contempt of court. See eg Gallagher v Durack (1983) 152 CLR 238; H Burmester, “Scandalizing the Judges” (1985) 15 MULR 313. See also D Dawson, “Judges and the Media” (1987) 10 UNSWLJ 17. Justice Dawson notes that in the Tasmanian Dams case (Commonwealth v Tasmania (1983) 158 CLR I) the High Court took the unusual step of issuing a prepared statement explaining in summary form the Court's decision in that complex case. Ibid 24.

¹² On his appointment to the Supreme Court of South Australia, E F Johnston, QC publicly resigned his membership in the Communist Party of Australia: Tribune, 12 August 1983.

¹³ D Dawson, supra n 11, 22.

¹⁴ Judges can and regularly do make controversial statements in their judgments. Within the area of liberal or conservative policy-making that is an acknowledged part of the modern judicial function, judges are free to be outspoken and frequently they are. This is as it should be.

¹⁵ Abe Fortas (1910-1982), Washington lawyer, adviser to Presidents, Associate Justice of the Supreme Court of the United States (1965-1969).

¹⁶ Quoted in Bruce Allen Murphy, The Brandeis/Frankfurter Connection: The Secret Political Activities of Two Supreme Court Justices (1982) 4. Justice Fortas was eventually forced to leave the Supreme Court because of financial rather than political aspects of his extra-judicial activities. Bruce Allen Murphy, Fortas: The Rise and,Ruin of a Supreme Court Justice (1988).

¹⁷ One example is the membership of the Chief Justice of the High Court of Australia on the National Debt Commission: s 6, National Debt Sinking Fund Act 1966 (Cth).

¹⁸ See D Dawson, supra n 11. The Chief Justice of the Family Court of Australia, Justice A B Nicholson, has used the letters to the editor column to express his views concerning the use of mediation in his court (Age, 9 August 1991 and 14 December 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 media attention focussed on allegations of gender bias in the Australian legal system, especially the judiciary. In Victoria, following a robust newspaper editorial criticising gender bias in the Victorian judiciary (and an equally robust treatment of the subject by the newspaper's chief political cartoonist), Chief Justice J H Phillips, noting that he was breaking with a century-long tradition that the judges did not respond to public attacks upon them, wrote to the newspaper defending the judges. A letter from the Chairman and Vice-Chairwoman of the Victorian Bar responding to the same material was published in the same issue as the Chief Justice's letter: Age, IO and 13 September 1993.

¹⁹ See generally, G Winterton, “Judges as Royal Commissioners” (1987) 10 UNSWLJ 108.

²⁰ Although it must be said that the appointments of Justice D Stewart and Justice J H Phillips as successive Chairmen of the National Crime Authority created controversy in their respective States of New South Wales and Victoria. In New South Wales some judges made their displeasure public. Both judges resigned their State judicial commissions and received commissions as judges of the Federal Court of Australia.

²¹ The main works are Z Cowen, Isaac Isaacs (1967); B d'Alpuget, Mediator: A Biography of Sir Richard Kirby (1977); D Marr, Barwick (1980); B Dabschek, Arbitrator at Work: Sir William Raymond Kelly and the Regulation of Australian Industrial Relations (1983); R Joyce, Samuel Walker Griffith (1984); J Rickard, H B Higgins; The Rebel as Judge (1984); C Lannour, Labour Judge: The Life and Times of Judge Alfred William Foster (1985); J Scutt (ed),,Lionel Murphy: A Radical Judge (1987). See also C L Pannam, “Dante and the Chief Justice” (1959) 33 ALJ 290; CL Pannam, “The Radical Chief Justice” (1964) 37 ALJ 275; C L Pannam, “Judicial Biography - A Preliminary Obstacle” (1964) 4 UQLJ 51.

²² P O'Malley, Law, Capitalism and Democracy: A Sociology of the Australian Legal Order (l983).

²³ M Kirby, The Judges (1983); B Galligan, Politics of the High Court (l987).

²⁴ For example, EH Carr, The Bolshevik Revolution, 1917-1923 (1950); George F Kennan, Russia and the West Under Lenin and Stalin (1961).

²⁵ See D F Fleming, The Cold War and its Origins 1917-1960 (1961); G Kolko, The Limits of Power: The World and United States Foreign Policy.1945-1954 (1972); W LaFeber, America, Russia and the Cold War, 1945-1984 (1985); JL Gaddis, The Long Peace: Inquiries Into the History of the Cold War (1987); Melvyn P Leffler, A Preponderance of Power: National Security, the Truman Administration and the Cold War (l992).

²⁶ A Davidson, The Communist Party of Australia: A Shorl History (1969); R Gollan, Revolutionaries and Reformists: Communism and the Australian Labour Movement 1920-1955 (1975).

²⁷ 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.

²⁸ T Truman, Catholic Action and Politics (1959); E Campion, Rockchoppers: Growing Up Catholic in Australia (1982), Ch 4; J D Pringle, Australian Accent (1965), Ch 4; BA Santamaria, “The Movement': 1941-1960 -An Outline” in H Mayer (ed), Catholics and the Free Society (1961).

²⁹ Here and elsewhere in this article the author has drawn on the expanded treatment of the emergence of the Cold War in Australia in L W Maher, “Sounds Dreadful: Broadcasting Regulation, Communism and the Early Cold War Period in Australia” (1991) 18 MULR, 368.

³⁰ For accounts of Brennan's life see Australian Dictionary of Biography (“ADB”), Vol 7, 402; D B Waterson, A Biographical Register of the Queensland Parliament 1860-1929 (1972) 19-20; R Johnston, History of the Queensland Bar (1978) 24, 34, 82-84; Appointment to the bench [1925] St R Qd v; Obituary [I 949) St R Qd V.

³¹ R v Sleeman & Connolly [1922] St R Qd 273; R v Sleeman & Connolly No 2 [1922] St R Qd 278.

³² Supreme Court Act 1921 (Qld); ADB, supra n 30, 403. The amendment allowed solicitors of five years standing to be admitted as barristers. Although Brennan was later criticised for his support for and resort to the amendment, it is not being suggested here that he should not have done so.

³³ ADB, supra n 30, 403.

³⁴ Sydney Morning Herald, 8 January 1945; Courier Mail, 8 January 1945.

³⁵ Guardian (Queensland), 12 January 1945.

³⁶ For details of Paterson's career, see F W Paterson, “The Early Years” (1980) 1 Sixty Years of Struggle 7; F W Paterson, “The Later Years” (1981) 2 Sixty Years of Struggle 9; D B- Waterson & J Arnold, Biographical Register of the Queensland Parliament 1930-1980 (1982) 74.

³⁷ This account is based on the Maryborough Chronicle, 2 March 1945 and the Courier Mail, 2 March 1945. I am indebted to Sir Gerard Brennan for providing me with a copy of his file of newspaper stories concerning his father's clash with Paterson.

³⁸ Courier Mail, supra n 37.

³⁹ Ibid.

⁴⁰ Edward Granville Theodore (1884-1950), Labourer, union official, member of the Queensland Parliament, Premier of Queensland (1919-I925), later member of the Commonwealth Parliament, Deputy Prime Minister and Treasurer (l929-1930).

⁴¹ Courier Mail, 2 March 1945.

⁴² There are some discrepancies between the two newspaper accounts of this part of the judge's statement. This article relies on the version reported in the Courier Mail, supra n 41.

⁴³ Courier Mail, 3 March 1945.

⁴⁴ Ibid.

⁴⁵ Brisbane Courier, 30 April 1926.

⁴⁶ Courier Mai/, 3 March 1945.

⁴⁷ Bundaberg News-Mail, 6 March 1945.

⁴⁸ Hewlett Johnson (1874-1966) Dean of Manchester and later Dean of Canterbury and enthusiatic supporter of the USSR as a result of which he was dubbed “the Red Dean”.

⁴⁹ Bundaberg News-Mail, 6 March 1945.

⁵⁰ Guardian, 9 March 1945.

⁵¹ Guardian, 16 March 1945.

⁵² What follows is based on the verbatim report published in the the Morning Bulletin (Rockhampton), 29 June 1945.

⁵³ Catholic Press, 24 August 1933.

⁵⁴ Morning Bulletin, 17 July 1945.

⁵⁵ Ibid.

⁵⁶ ADB, supra n 30.

⁵⁷ Who's Who in Australia (1949).

⁵⁸ G L Kristensen, The Politics of Patriotism: The Pressure Group Activities of the Returned Servicemen's League (1966).

⁵⁹ State branches of the RSL had passed similar resolutions in the previous two years. For a report of proceedings at the 1946 Victorian RSL State Conference, see the Argus, 26 July 1946.

⁶⁰ Circular let, State Secretary to Sub-branches, 24 May 1948, RSL Papers, National Library of Australia, Canberra, Files 2414C and 2966C. I am indebted to the RSL for allowing me to have access to its papers in the National Library collection.

⁶¹ Ibid.

⁶² The following month Justice Sugerman granted an injunction restraining the RSL from expelling Communists and Communist sympathisers: Bergeest v The Returned Sailors, Soldiers and Airmen's Imperial League of Australia (NSW Branch) (Supreme Court (NSW), 14 October 1948, unreported judgment of Sugerman 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 Returned Sailors, Soldiers and Airmen's Imperial League of Australia (NSW Branch) v Bergeest (No 375 of 1948, unreported, 3 March 1949).

⁶³ Canberra Times, 15 September 1948.

⁶⁴ Argus, 15 September 1948. Interestingly, on the same day that the intelligence official turned judge was publicly warning the RSL of the Communist menace, an inconspicuous notice appeared in the the Brisbane Telegraph announcing that a public debate would be held the following evening in Brisbane on the subject “That Communism is not compatible with personal liberty”. To some extent that debate, which provoked nationwide protests and resulted in the prosecution and conviction of Gilbert Burns, a member of the Queensland State Executive of the CPA, 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 of Sedition” (1992) 14 Syd L Rev 287.

⁶⁵ Com Parl Deb, 1948, Vol 198, 583-584 (21 September 1948).

⁶⁶ Canberra Times, 22 September 1948.

⁶⁷ Com Parl Deb, 1948, Vol 198, 934 (28 September 1948).

⁶⁸ For details of Dixon's career see JD Merralls, “The Rt Hon Sir Owen Dixon, OM, GCMG, 1886-1972” (1972) 46 ALJ 429; D I Menzies, “The Right Honourable Sir Owen Dixon, OM, GCMG” (1973) 9 Melb U L Rev 1; NM Stephen, Sir Owen Dixon: A Celebration (1986); G L Fricke, Judges of the High Court (1986) 111-122.

⁶⁹ Judiciary (Diplomatic Representation) Act 1942. Between 1940 and 1942 Dixon also performed extra-judicial service as Chairman of the Central Wool Committee and on the Australian Coastal Shipping Control Board, the Marine War Risks Insurance Board, the Marine Salvage Board and the Allied Consultative Shipping Council: JD Merralls, supra, n 68, 430.

⁷⁰ Felix Frankfurter (1892-1965), prominent member of the Harvard Law School, Associate Justice of the Supreme Court of the United States (1939-1962) and adviser to President F D Roosevelt. See O Dixon, “Mr Justice Frankfurter” (1957) 67 Yale L J 179. Some evidence of the Frankfurter/Dixon connection can be found in JP Lash (ed), From the Diaries of Felix Frankfurter (1975). For a detailed account of Frankfurter's extensive politicking as a judge, see B A Murphy, The Brandeis/Frankfurter Connection: The Secret Political Activities of Two Supreme Court Justices (1982).

⁷¹ Dean Acheson (1893-l971), Lawyer, diplomat, adviser to Presidents, United States Secretary of State (1949-1953).

⁷² R Murray, The Split: Australian Labor in the Fifties (1970) 15; J Jupp, Australian Party Politics (1964) 89.

⁷³ Late in 1946 an attack was made in the Victorian Parliament on Crawford who was then President of Australia-Soviet House in Melbourne. Crawford's attacker was concerned about the “virus of Communism” infecting the State's educational system: Vic Parl Deb, 1946, Vol 222, 3250 (14 November 1946). Crawford denowiced the attack, but it was renewed the following month: Vic Parl Deb, 1946, Vol 222, 3308-3309 (19 November 1946), Vol 223, 4584-4585 (20 December 1946). On 15 April 1947 The University of Melbourne made a public annowicement to the effect that it was satisfied that Crawford had not infringed the governing principles of university teaching: Age, 16 April 1947.

⁷⁴ Labor Attache's Report No 47, 28 May 1947, Enclosure No 10, Department of State, Record Group 59, National Archives and Records Administration, Washington, DC.

⁷⁵ B A Santamaria, Against the Tide (1981) 120-122; W J Hudson, Casey (1986) 201; see also infra n 139.

⁷⁶ D I Menzies, supra n 68, 1.

⁷⁷ Herald, 15 March 1949.

⁷⁸ Com Parl Deb 1949, Vol 201, 1349-1350 (15 March 1949). The following day Senator O'Byrne described Dixon's remarks as “contumelious”. Ibid 1472. The President of the Senate offered a paean of praise to parliamentarians as a class saying that “if Sir Owen Dixon made those statements that have been attributed to him, I deplore the fact and regret that a man holding such a high position should descend to the standard of conduct of the Yarra Bank or the Sydney Domain”. Ibid 1472-1474.

⁷⁹ Ibid 1350.

⁸⁰ Ibid 1406.

⁸¹ J P Buckley, “Sir Frederick Shedden: Defence Strategist, Administrator and Public Servant”, Defence Force Journal No 50, February 1985, 21; W Peny, “Sir Frederick Shedden (1893-1971)”, Defence Force Joumal No 83, July/August 1990, 38.

⁸² “With regard to the Top Secret investigation being conducted by the Australian Security Service, some progress has been made. A tentative identification of the principal spy master of the net-work has been made, and his present activities are under active investigation. As a result of this tentative identification, new lines have been uncovered and the activities of certain other individuals who have been thrown up by ground investigations are being covered”: Memorandum, “Australian Security Service-Note on Progress from l to 29 June 1949”, 20 July 1949. Australian Archives (ACT) (“AA (ACT)”) CRS A5954, Sir Frederick Shedden Papers (“Shedden Papers”), Box 1795.

⁸³ F Cain, “Missiles and Mistrust: US Intelligence Responses to British and Australian Missile Research” (1988) 3 Intelligence and National Security 5; F Cain, “An Aspect of Post-War Australian Relations with the United Kingdom and the United States: Missiles, Spies and Disharmony” (1989) 23 Australian Historical Studies 186; Com Parl Deb, 1948, Vol 199, 2478-2530 (4 November 1948).

⁸⁴ Shedden Papers, Box 1795.

⁸⁵ Keith Arthur Murdoch (1885-1952), journalist, editor, and newspaper proprietor.

⁸⁶ Lloyd Dumas (1891-1973),journalist and editor.

⁸⁷ Essington Lewis (1881-1961)), mining engineer, industrialist, General Manager of the Broken Hill Proprietary Co Ltd (1921-1952), Director of Munitions (1940- 1945).

⁸⁸ Thomas Playford (1896-1981) fanner, Paliamentarian, Premier of South Australia (1938-1965).

⁸⁹ Richard Gardiner Casey (1890-1976) engineer, intelligence officer, diplomat, parliamentarian and Governor-General of Australia (1965-1969).

⁹⁰ At the completion of his tenn in Australia, Ambassador Cowen paid a particularly revealing tribute to Herring (about whom more later in this article) in the following way:"[I]t was you who gave me my first dinner at Melbourne at the Melbourne Club, and it was there through you that I met some' of the men of Melbourne who have been most helpful to me during the time I have been here”: Letter, Cowen to Herring, 9 March 1949, Herring Papers, MS ll355, Australian Manuscript Collection, La Trobe Library, State Library of Victoria (“Herring Papers”), Box 40.

⁹¹ Shedden, Notes of Discussions, 11 November 1948. Shedden Papers, Box 848/4.

⁹² Memorandum, “Notes of Private Discussions on the Restoration of the Flow of United States Classified Infonnation to Australia” (undated). Shedden Papers, Box 1795. Dixon's prediction was accurate. It was not until January 1950, after the election of the Menzies Government, that the US Government reinstated the flow of highly classified military infonnation. The US Naval Attache in Australia in the period July 1947-September 1949, Commander Stephen Jurika, Jr, was very well connected in the Melbourne establishment and sent despatches from Melbourne (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 Chief of Naval Operations, US Navy Department, Washington, OC. On 21 July 1949 Sir Owen Dixon, in his capacity as President of the ESU, and Lady Dixon hosted a public luncheon in Melbourne as part of a round of functions to farewell Commander Jurika at the completion of his tour of duty in Melbourne: Age, 22 July 1949. As Jurika's pungent despatches show, the United States Navy was particularly hostile to the Chifley Government. It is possible that Jurika was an additional (local) source of Dixon's understanding that resumption of US cooperation with Australia depended upon the outcome of the 1949 election. When Shedden was in London in August 1949 he was told by MIS Director-General, Sir Percy Sillitoe, that Jurika's superior, Admiral Inglis, considered that there could be no settlement while a Labor Government was in power as its members were considered to be pro-Communist. Memorandum, “Notes of Private Discussions on the Restoration of the Flow of United States Classified Infonnation to Australia” (undated). Shedden Papers, Box 1795.

⁹³ See especially Shedden's detailed reports to Chifley on his official discussions on his 1949 trip. Shedden Papers, Box 1795.

⁹⁴ The writer sought but was unable to secure access to Dixon's papers.

⁹⁵ Herald, 22 April 1949.

⁹⁶ (1949) 79 CLR 101.

⁹⁷ (1949) 79 CLR 121.

⁹⁸ Australian Communist Party v Commonwealth (1951) 81 CLR 1 (“the Communist Party Dissolution Act case”). See E McWhinney, “Judicial Positivism in Australia: The Communist Party Case” (1953) 2 Am J of Comp L 36. Dixon kept up his interest in international affairs. In 1950 he acted as UN mediator in the Kashmir dispute. He corresponded regularly with Shedden. The latter valued Dixon's opinions on defence and related matters of foreign policy and from time to time lent Dixon secret material for comment. In early 1952 Dixon told Shedden that he wished he could be of more assistance to Shedden “when you are so good as to discuss your onerous problems with me”: Letter, Shedden to Dixon, 4 April 1952; Letter, Dixon to Shedden, 10 April 1952. Shedden Papers, Box 61/3.

⁹⁹ For details ofLatham's career see ADB, Vol 10, 2-6; W Perry, “The Late Sir John Latham” (1964) 35 Victorian Historical Magazine 94; AD G Adam, “Sir John Latham-A Tribute” (1964) 38 ALJ 188; Z Cowen, “Sir John Latham” (1964) 4 MULR 431; Z Cowen, Sir John Latham and Other Papers (1965); G L Fricke, Judges of the High Court (1986) 134-142.

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

¹⁰¹ C Lloyd, “Not Peace But a Sword! - The High Court Under JG Latham” (1987) 11 Adel L R 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 Latham for his “contribution”. Latham's biographer has observed:”... I suspect that it was politics and affairs rather than the law that lay deepest to his heart”. Z Cowen, “Sir John Latham” (1964)4 MULR 431, 432.

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

¹⁰⁵ Harold Edward Holt (1908-1967), lawyer, parliamentarian, Prime Minister of Australia (1966-1967).

¹⁰⁶ Earle Grafton Page (1880-1961), surgeon, parliamentarian, Deputy Prime Minister of Australia (1923-1929; I934-1939), Prime Minister of Australia (1939).

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 were ever laid. Menzies claimed in the Parliament that he could establish the truth of each of the accusatory recitals in the Preamble to the Communist Party Dissolution Act 1950; Com Parl Deb, 1950, Vol 207, 1994 at 1998-2005 (27 April 1950). Toe Solicitor-General of the Commonwealth, Professor K H Bailey, acknowledged privately that there was no evidence which would support treason or espionage prosecutions. Together with the Chief Parliamentary Draftsman, J Q Ewens, and outside counsel, including M V Mcinerney, KC of the Victorian Bar, Bailey worked on successive versions of the Preamble to the 1950 Act before settling the final version. M (ACT) Ml5O9/l Attorney-General's Department Central Office Solicitor-General's Office Subject Files Alphabetical Series (Classified), Item 7. For background on the Chifley Government's anti-espionage activities, see L W Maher, “Toe Lapstone Experiment and the Beginnings of ASIO” Labour History, No 64, May 1993, 103.

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

¹⁰⁹ Australian Communist Party v Commonwealth (1951) 83 CLR I.

¹¹⁰ G Winterton, “The Significance of the Communist Party Case” (1992) 18 MULR. 630.

¹¹¹ In his excellent book, The Politics of the High Court (1987) 204, Brian Galligan appears to accept literally Latham's statement that his is a legalist approach free of politics.

¹¹² Z Cowen, Sir John lAtham and Other Papers (1965) 43.

¹¹³ B Galligan, Politics of the High Court (1987) 204.

¹¹⁴ G Winterton, supra n 110.

¹¹⁵ Bank of New South Wales v Commonwealth (1948) 76 CLR 1.

¹¹⁶ (1951) 83 CLR I, 142-143 (italics added).

¹¹⁷ Ibid 145.

¹¹⁸ (1951) 83 CLR 1, 144.

¹¹⁹ Report of the Royal Commission Inquiring into the Origins, Aims, Objects and Funds of the Communist Party in Victoria and Other Related Matters (1950). Vic Parl Deb, 1950, Vol 232, 24 (22 June 1950). See S Ricketson, supra n 27.

¹²⁰ (1951) 83 CLR 1, 148 (italics added).

¹²¹ Ibid 152.

¹²² Ibid 154.

¹²³ AA (ACT), CRS A432 Attorney-General's Department. Correspondence Files, Annual Single Number Series 1929- Item, 1949/308, L L Sharkey; M (NSW), SP186, Office of the Deputy Crown Solicitor, Sydney. Common Law Files 1947- 1953, 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 on notorious facts about international relations it should call External Affairs Minister H V Evatt to prove those facts: Australian Archives (WA), PP352/l, Deputy Commonwealth Crown Solicitor (WA), Item WA 6164, KM Healy.

¹²⁴ (1951) 83 CLR 1, 155-156.

¹²⁵ For accounts of Herring's life see S Sayers, Ned Herring (1980); CM H Clark, A History of Australia, (1987) Vol VI, 150, 151, 170; CH Francis, Obituary, Victorian Bar News, Autumn 1982, 6; J P Buckley, “Great Soldier-Great Christian”, Defence Force Journal, No 34, May/June 1982, 5.

¹²⁶ S Sayers, supra n 125, 68.

¹²⁷ M Cathcart, Defending the National Tuckshop: Australia's Secret Anny Intrigue of 1931 (1988); A Moore, The Secret Anny and the Premier: Paramilitary Organizations in New South Wales 1930-1932 (1989).

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 complete Communist grip on Czechoslovakia.

¹³⁰ M V Mcinerney and G J Moloney, Judges as Royal Commissioners and Chairmen of Non-Judicial Tribunals (1985) 10-19; G Winterton, supra, n 19.

¹³¹ This followed a series of sensational nationally sydicated newspaper articles by Cecil 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 Commission on Communism, 1949-50: A Study of Anti-Communism in Australia”. MA Thesis, 1973, ANU.

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

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

¹³⁴ Speech to Victorian R S L, Herring Papers, Box 37. P Deery (ed), Labor in Conflict: The 1949 Coal Strike (1978). In early 1950 the Victorian CPA newspaper, the Guardian, attacked the appointment to the Supreme Court of Victoria of R R Sholl, KC, who had been leading counsel assisting the Victorian Royal Commission Inquiring into the CPA. The article under the headline “Mr Justice 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 chief backers in securing promotion to the bench was Chief Justi Sir E Herring, whose reactionary utterances are well-known”. The article gave rise to unsuccessful 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.

¹³⁷ Speech Notes, Chamber of Manufactures, 18 Jwie 1951, Herring Papers, Box 27.

¹³⁸ Speech Notes, Commonwealth Lwicheon, IO April 195I, 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] Establishment conservatism 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 broadcasts located in AA (VIC) MP 1723/19/10, Item A 53.

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

¹⁴² Ibid.

¹⁴³ S Sayers, supra n 125.

¹⁴⁴ Notes for Breakfast, 8 June 1951, Herring Papers, Box 27.

¹⁴⁵ Letter, Herring to KA Willis, 9 July 1951, Herring Papers, Box 27.

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

¹⁴⁷ See KAmos, The New Guard Movement 1931-1935 (1976).

¹⁴⁸ Com Parl Deb, 1951, Vol 214, 1320-1321 (31 October 1951).

¹⁴⁹ ComParlDeb, 1951, Vol 215, 1716-1717(8 November l951).

¹⁵⁰ Herring Papers, Box 27. Age, 11 November 1951.

¹⁵¹ Letter, Latham to Herring, 28 September 1951, Herring Papers, Box 27.

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

¹⁵³ Herring had approached Evatt to enlist his signature, but at first Evatt had resisted saying that his first impression of the draft shown to him was that it was a draft of one of the speeches of R G Menzies on the Referendum: Letter, Evatt to Herring, 4 October 1951; Letter, ET Simpson to McGuire, 15 November 1951. Then Evatt indicated he would sign: Letter, N E McKenna to Herring, 25 October 1951. But, again, he changed his mind: Telegram, Evatt to Herring, 1 November 1951. Herring Papers, Box 27.

¹⁵⁴ “The Call' is accepted as a term meaning only one thing, and as such is used in newspaper headlines, radio, national publications and public references. (It has become so established that subversive bodies are reported to have issued an opposition 'Call to the People of Australia' to create confusion.)” “The Call-Four Months Later”, 17 March 1952, Herring Papers, Box 27.

¹⁵⁵ Outline Notes for Speech by K H Oxley at Ballarat, 22 November 1954. Herring Papers, Box 37.

¹⁵⁶ Herring took an interest in the activities of kindred anti-Communist organisations in the United States, including those of expatriate Australian Dr F C Schwarz's Christian Anti-Communist Crusade which had direct links with Australia. The tone and modus operandi of The Call and its underlying organisation resemble what was happening in similar anti-Communist movements in the US at that time. See M J Heale, American Anti Communism: Combatting the Enemy Within, 1830-1970 (1990) 167-177.

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

¹⁵⁸ He did hear a case about a CPA-inspired maritime boycott which led to charges being instituted by the Menzies Government under s 30K of the Commonwealth Crimes 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. and the breakaway Democratic Labor Party came before the Supreme Court of Victoria in 1961. Herring had also co-operated with the Catholic Archbishop of Melbourne, Dr Daniel Mannix, in a campaign which resulted in the enactment of the Victorian Education (Religious Instruction) Act 1950. Herring's discreet contacts with the defence and security establishment continued until much later.

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 GE J Barwick, Sir John Did His Duty (1983).

¹⁶³ M Sexton, War for 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 of criticism within the legal profession and wider community was due to the overall legitimating effect of the intense anti-Communist feeling in the Australian community at the time.

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

¹⁶⁶ Recently, the judges of the Supreme Court of Victoria have decried the increasing legislative tendency to whittle away at the jurisdiction of the Court: Victoria, Annual Report of the Judges of the Supreme Court of Victoria 1990-1991.

¹⁶⁷ (1932)48 CLR487, 517-518.

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

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 that he would not have been impressed had it been issued by politicians - it would have been regarded as propaganda - but the fact that judges has made the appeal led him to treat it seriously: Letter, Napier to Herring, 29 November 1951, Herring Papers, Box 27.