The High Court’s Centenary … and Vale Jim Cairns

The rude health of our polity at the centenary of the High Court of Australia, celebrated last month, is in part due to the very qualities of that court. It has shown that it can survive the roundabouts of politics and fashion, succumbing to the pressures of both from time to time but over the longer period generally setting its own errors right. Thus it does respond to changing circumstances but with a lag, such that it often resists elected governments and popular opinion, and over time the changing composition of the court corrects for its earlier errors.

The court has never been crudely partisan, despite the abuse to which it  was subjected from the left of politics as a result of decisions like those on bank nationalisation and from the right of politics as a result of decisions like those on Mabo and Wik. Indeed, the self-correcting tendencies of the court were apparent in the latter case when there was a bare majority for the decision. While it is unlikely that either decision will be simply reversed, further modications can be expected; and in 1988 the court sensibly abandoned the tortured interpretations of section 92 to admit that the section meant what it said and no more, that there should be no tariff or other protectionist barriers obstructing trade and other commercial transactions across state borders.

Nevertheless the court has suffered during the whole century from the besetting sin of arrogance, and while there is some sign that this is being corrected – the present Chief Justice Gleeson has defended the right of the community to criticise the court in strong terms – certain of its doctrines have become set in stone, despite their dubious nature. Chief of these is the doctrine of separation of the judicial and executive powers. Not only does the constitution of 1901 express no such doctrine, it explicitly denies it in section 101, which gives “powers of adjudication and administration” to a non-court, the Inter-State Commission. The doctrine of separation was never part of English law (and clearly never existed in the Australian states despite recent attempts to introduce it), but was originated by Montesquieu who idealized but clearly misunderstood the English political system. The survival of the House of Lords as the ultimate court of appeal in the English legal system showed that separation was never absolute, as did the role of the Lord Chancellor. Montesquieu’s doctrine was the origin of the separation in the US Constitution, which did influence the drafting of the Australian Constitution – but ours is a hybrid system. It is clear from section 101 that there was no such clear separation intended by the drafters of our constitution; nor was there any difficulty seen when the Australian Court of Conciliation and Arbitration was established with both administrative and judicial functions. It was not until 1956 that the High Court decided that it would no longer tolerate this.

There is little chance that this judicial coup d’état could ever now be reversed. No more could the heavy bias in favour of centralism which took hold from 1920 on. Yet another development, which reached its high point in the irresponsible years of the Mason court (1987-95), was the arrogant assumption that the High Court could alter the constitution at will despite the contrary provisions of the constitution itself. This was done by assuming that international law, an amorphous body of doctrines which have been given the status of legislation although never having been put before any democratically elected parliament, could overrule any provisions of our laws or constitution. This has been achieved by a continual extension of the notion of common law. Common law in the past was “found” by the courts, but it could be modified by legislation. No legislature can modify international common law – it is purely an invention of unelected international agencies and of courts. This has even led to the extraordinary notion of “new customary international law”, which means that courts can claim there is some kind of international common law which changes rapidly without benefit of treaty or governmental agreement and which can be employed to overrule democratically elected parliaments.

Naturally such a state of affairs appeals to those who believe that there is a kind of natural law which is above man-made laws, but which emanates not from a Divine Being but from the Divine Right of the courts, and of the serried ranks of legal academics who dream up such notions. Thus it is now accepted legal doctrine in the universities, at least, that there are certain rights and legal principles which cannot be subjected to the will of the people but can only be decided by courts. Such doctrine has influenced, and continues to influence, the courts. However, it is apparent that there is a backlash against this, such that changes of governments and subsequent changes of judicial personnel will over time lead to the obsolescence of such fashions. This has been happening with our High Court.

But, as the Chief Justice has also said, our court has never if ever been simply politically partisan. Only on one occasion has a division in the present court corresponded to whether the judges had been appointed by Coalition or Labor governments, and that was on an apolitical issue. Rather, we have seen the normal cyclical change in doctrine in the court as a result of changing appointments and changing fashions amongst the political elites. A good court changes its mind slowly.

Vale Jim Cairns

The “foolish, passionate man”, as one of his biographies was entitled, Jim Cairns, died last month. Yeats’ phrase is the most charitable judgement which can be made of Cairns’ political life, which began with his leaving his university lectureship after the time of the great Labor Split in Victoria to take up the electorate of one of those who left the Labor Party, and which took off when at the height of the protests against the Vietnam War he discovered the joys of playing king of the kids – he was of  course considerably older than the baby-boomers who were the foot soldiers of that movement.

During his university career (which followed an earlier career as a police officer involved with the Special Branch) he dabbled in Marxism, as did many, writing journal articles of spectacular banality, and wrote his doctoral thesis on the history of Australia’s social services. This was not well thought of, and he was granted his doctorate only after entering parliament. Like many economic historians who were in fact only social historians he laid claim to economic expertise which he never had. He was an old-fashioned authoritarian socialist, wedded to top-down statism and the sectarian anti-Catholicism of the Victorian Left. He was bitterly opposed to public financing for Catholic and other independent schools.

It was only with the rise of the youthful Left in the context of Vietnam that he really achieved public influence, and as the beneficiaries of Menzies’ Commonwealth Scholarship Scheme poured into the universities and the Labor Party he became a serious contender for leadership of the ALP. He was Gough Whitlam’s main rival – if he had prevailed Australia would, for good or evil, not have had the Whitlam, or any other Labor, government until years later than 1972. He catered to the irrational Left, and so became the hero of the new middle classes.

In government he was a poor secondary industry and trade minister, giving inefficient and protected industries whatever they asked for (that was when he acquired the sobriquet of “Dr Yes”), believing that protectionism and socialism were two sides of the same coin, and then was translated into his disastrous stint as Treasurer. There he closed his doors (his Cerberus was his lover, Juni Morosi, who did not trust public servants) to his advisers, refusing to discuss budget policy or sign off on official papers – such that Treasury feared that it would not be able to produce a budget at all. At the same time he opened them to a procession of shonks, one of whom went around the world flourishing a letter signed by Cairns authorising him to raise funds for the Australian government. Fortunately, Whitlam found it necessary to sack Cairns for misleading parliament about this and related matters, replacing him with Bill Hayden who tried valiantly to restore fiscal credibility. But it was too late. Thereafter Cairns went into a long and pathetic decline, first of all playing with alternative life-style movements and then becoming a kind of ancient mariner, hawking his scribblings in markets and university campuses, and seizing upon any unhappy passer by who did not avert their eyes, as many who knew him embarrassedly did, to tell his story once again. Too late to enjoy any physical benefits, he developed an interest in Wilhelm Reich, the loony renegade Freudian, who believed that authority depended on sexual repression and could only be thrown off by way of sexual freedom – and quack medicine.

When he finally admitted to his love affair with Juni Morosi he made no apology for the lies he had told, his perjury and his corruption of the course of justice in their successful defamation action against those who revealed it. Nor did he apologise for having taken the money. Cairns was nevertheless an attractive figure for those who prefer the politics of the warm inner glow to the realities of government and power. Thus he still enjoys a reputation totally unwarranted by his actual performance and the harm he did to the Labor Party and to the Whitlam government. So he continues to enjoy a place in the hearts of the aging baby-boomers. As one commentator said charitably after his death, he was a fool, but a “genuine fool”, a “sweet man”. This is true enough. He was not a bad man, nor was there any evil in his heart. If only he had been pastor in a minor congregation where noone noticed him, he could have done good. But as it is, the evil that he did in the name of good lives after him.

Speak only well of the dead seems a fine principle at first glance, but is inappropriate in many cases, most obviously when one is speaking of evil mass murderers like Stalin or Hitler. Even then there are those who object to telling the truth about the recently deceased. Many remember the outcry at Frank Packer’s Daily Telegraph front page announcing Stalin’s death with a drawing of a crocodile shedding tears, and the headline “Stalin Dead: Hurrah!” But the Tele got it spot on, as tabloids sometimes do; there were still many people who thought of themselves as on the left of politics who wanted to believe that Stalin’s crimes were only American cold war propaganda and that he was the saviour of democracy and social progress. This was despite the ample documentation of the show trials and of the existence of the gulags, and the witness of many postwar immigrants.

It was a good lesson that the truth is more important than fine feelings. Too often the universal impulse to remember only the good in people after they die, or an unwillingness to hurt the feelings of a deceased’s immediate family, allows a process of instant canonisation to take place. This was clearly attempted in the case of Jim Cairns, and many people who should have known better pretended outrage when one or two commentators told the blunt truth about him. A love affair or two is of no great significance, but to sue for defamation at the revelation of such an affair and perjure oneself for gain is too significant a failing not to require at least an apology. (One would like to see charges brought against anyone else who perjured themselves in this case – at least the British sent Lord Archer to jail after the revelation of his false evidence in his own defamation case against a newspaper.)

While the increase in the number of obituaries run in newspapers is a good thing, it seems increasingly the case that they are being written by the friends or family of the deceased. While this is very satisfying for them, it does not tell the rest of us much about the real character involved. And when they are written by supporters or sympathisers of a person who has been active in politics they smack of propaganda. This seems especially the case with figures on the left, who always have attributed to them great sincerity, humanity and virtue despite the often bloodstained hands of those they were loyal to during their lives. Trade union leaders who were notoriously corrupt are elevated into honest toilers for idealism.

The London Daily Telegraph pioneered some years ago a franker approach to obituary writing in which journalists were prepared to write about the failings and eccentricities, as well as the virtues, of their subjects. This at least made the obituaries much more interesting and amusing reading, and far from harming the subjects made one think better of them as fallible human beings. This example stimulated a lot of others to step up their obituary notices, although the enthusiasm for frankness seems to have been toned down. There is a lot of self-serving in the kind of obituary or memoir written about a relative or friend. Nowhere is this more apparent than in the frequent habit of the many children and grandchildren of former communists who infest the ABC of talking on air about their relatives, or their parents’ friends, who were Stalinists as if they had been merely dedicated idealists uninterested ever in power or in supporting spying and dictatorship. As has often been said by honest people who decry the excesses of McCarthyism, there really were reds under the beds. A pity McCarthy was such an ignorant thug. At worst the loyal communists sent others to their deaths, at best they cynically promoted the careers and incomes of fellow party members at the expense of others.

Noone would want the response to any death to be an instant outpouring of malice (there is enough of this already in the media directed at the living) or lies about the deceased, now beyond the reach of the defamation law. But when the subject has been a person who has played an important role in the life of the nation as much of the unvarnished truth as can decently be told should be told, lest the deceased become a sainted tool of the living.

A NOTE TO CONTRIBUTORS

In the very near future, Quadrant will be going online, and a growing proportion of printed material will be available also through the Internet, especially the fully footnoted versions of some articles. It will be assumed, failing evidence to the contrary, that contributors will have no objection to this procedure – which can only enhance the readership of the magazine outside Australia (especially by way of links from sites like Arts & Letters Daily) and amongst students and low-income groups within Australia.

Padraic McGuinness . Quadrant  editorial . November . 2003

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