TALES OF THE OVERT AND THE COVERT: JUDGES AND POLITICS IN EARLY COLD WAR AUSTRALIA LAURENCE W MAHER· INDEPENDENCE, IMPARTIALITY, POLICY AND POLITICS This article examines historical aspects of the convention that Australian judges are precluded from engaging in political activities. That convention is an element of the strict separation ofjudicial functions and the independence ofthe judiciary.! Apart from the deliberative component which may be carried out in private and the very limited role for closed hearings, the judicial process is essentially acted out in public. However, upon appointment to the bench, a judge is expected to limit involvement in other forms of public life and to conduct his or her private life so as to avoid, as far as is reasonably practicable, involvement in activities which might (or might be seen to) compromise the judge's or a court's independent status or the impartial disposition of specific cases or issues. The less involved a judge is in non-judicial activities the less likely it is that the judge will be confronted with determination of a case or an issue in which he or she has some interest. The terms "politics" and "political" have meaning beyond their application to partisan organisational activity. They are used here in their widest sense to describe events, conduct or attitudes which, in one way or another, are concerned with promoting or resisting action affecting the distribution of power in society. Rightly or wrongly, both terms can also carry strong pejorative connotations. As a term of abuse or disparagement, the characterisation of an individual's actions or motives as "political" frequently * LLB (Melb), LLM (ANU). Barrister and Solicitor of the Supreme Courts of Victoria and the ACT. Senior Lecturer in Law, University of Melbourne. John Goldring, Christine Maher, Michael Sexton and George Winterton provided valuable comments on earlier drafts of this article. The author alone is responsible for the views expressed in the article and for any errors which it may contain. Traditionally, the independence of the judiciary has been secured by a dual protective scheme. First, judges have security oftenure. 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, Constitution s 72(iii). Recently) Australian judges have argued that further protections are required. See generally LJ King, "Minimum Standards of Judicial Independence" (1984) 58 ALJ 340~ G Green, "The Rationale and Some Aspects of Judicial Independence" (1985) 59 ALJ 135; AF Mason, "Judicial Independence and\the Separation of Powers - Some Problems Old and New" (1990) 24 UBe L Rev 345 republished in (1990) 13 UNSWLJ 173; MD Kirby, "Judicial Independence in Australia Reaches a Moment of Truth" (1990) 13 UNSWLJ 187; RE McGarvie, "The Functions of Judicial Independence in a Modem Democracy" (1991) 1 J ofJud Admin 3; Australian Bar Council, Statement on the Independence of the Judiciary, Victorian BarNews, No 77, Spring 1991, 18. 151 152 Federal Law Review [VOLUME 21 indicates that the speaker regards the actor as crafty, unprincipled or motivated by nothing other than a determination to obtain or retain a position of power. In the best traditions of Australian cynicism, "politics" and things "political" have little, if any, connection with objectivity, fairness or justice. Either way, for a judge to be accused ofinvolvement in "political" activity must be a source of concern. Such conduct is generally regarded as antithetical to the judicial role. Judges are required to stand apart from controversies so as to be free to resolve disputes impartially and to ensure the appearance of impartiality. Judges are, ofcourse, especially required to stand fearlessly between the citizen and the state. In this article attention is directed to that particularly turbulent period in recent Australian history, 1945-1955, and the varying political activities offive prominent judges, two from the High Court of Australia and three from Staterrerritory Supreme Courts. In the cases examined here the judges pursued a variety of political roles - outright polemics (Brennan), the public announcement of anti-Communist concerns chiefly attributable to the judge's recent involvement in the security service (Simpson), behind-the-scenes advice to diplomats, politicians and bureaucrats (Dixon and Herring), the articulation in a judgment of a specific ideological position (anti-Communism) which the judge had actively pursued as a politician (Latham), and the pursuit ofa multi­ faceted politico-military career simultaneously with the holding of judicial office (Herring). The high societal value attached to impartial application of legal rules in the resolution of disputes is sometimes linked with concepts of strict legalism according to which the judicial process is said to be value-free and legal rules are supposedly immune to ideological contamination.2 For the adherents of strict legalism, the law needs to be preserved from the grubby world ofpolitics with all its intrigue, arbitrariness and expedience. According to Shklar, there is a view "that law is not only separate from political life but that it is a mode of social action superior to mere politics".3 In the past such an attitude has been used to mask the ideological biases of the legal system, to blur the distinction between acceptable judicial policy-making and unacceptable politicking, and to distract attention from the behaviour ofjudges. The ways in which judges can attract criticism or censure for improper "political" activities can range across a spectrum of"policy activism" to corruption. It is now widely acknowledged that judges regularly apply social or economic policy preferences in the discharge of their duties and that far from being neutral ciphers, judges make law. They are less likely to be criticised for this than was the case 30 to 40 years ago. Since Australian judges are, for the most part, chosen from a very small group of lawyers, their decision-making has traditionally reflected the values and policy choices of the rich and 2 See generally JN 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 ALl 468. This address echoed remarks he had made on the occasion of his elevation to the office of ChiefJustice: see (1952) 85 CLR xiv and 0 Dixon, Jesting Pilot (1965). 3 JN Shklar, supra n 2, 8. 1993] Tales ofthe Overt and the Covert 153 powerful in Australian society.4 There is an important sense in which the use of policy preferences exhibited in judicial decision-making involves "political" action, given the wide definition advanced earlier. This use of policy preferences by judges can, but will not necesarily, pose issues about the impartial adjudication of cases or the independence of the judiciary or the mixing of partisan "political" and judicial functions. It is argued later that Chief Justice Latham's dissent in the Communist Party Dissolution Act case is an example of judicial policy preferences infected with partisan political sentiment. The other end of the spectrum of judicial conduct is much more troublesome. When questions about the independence or integrity of the judiciary arise in Australia the focus of discussion and debate is likely to be an allegation of actual or attempted corrupt conduct by government or private interests or a member of the judiciary that jeopardises the ability of a judge or court to dispense impartial justice. Australia witnessed several causes celebres ofthis kind in the 1980s. In one case, Mr Justice Murphy ofthe High Court of Australia was twice tried on charges of attempting to pervert the course of justice and unsuccessful attempts were made to remove him from office. S In another case New South Wales District Court Judge John Foord was tried and acquitted on charges of attempting to pervert the course of justice.6 In yet another case, Mr Justice Vasta of the Supreme Court of Queensland was impeached.7 Occasionally, questions concerning the independence or integrity of the judiciary in Australia have arisen not because judges or courts are put in jeopardy by external pressures, but rather because individual judges have been prepared' to become involved in public controversies or to wield power or influence in their private activities. It is this last category of "politicking" 4 M Sexton &LW Maher, The Legal Mystique: The Role ofLawyers in Australian Society (1982) Chs 1 & 4; J G Griffith, The Politics ofthe 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, ParI Paper No 168 (1984); Senate Select Committee on Allegations Concerning a Judge, Report of the Senate, ParI Paper No 271 (1984); Parliamentary Commission ofInquiry, Special Report and Special Report Dealing with the Meaning of ''Misbehaviour'' for the Purposes ofSection 72 of the Constitution, ParI Paper No 443 (1986). For an accoWlt 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 ofthe background to Judge Foord's case see John Faiifax & Sons Ltd v Foord (1988) 12 NSWLR 706. 7 QId ParI Deb, 1989, Vol 310, 5146-5158 (30 May 1989) (Motion for Removal), 5215-5260 (7 June 1989) (Leave to Appear at Bar ofHouse and Address by Vasta J), 5261-5343 (Address to the Governor), 5408-5409 (8 June 1989) (Removal). For a range ofrecent discussion on the broad issue ofjudicial propriety see MD Kirby, The Judges (1983); JB Thomas, Judicial Ethics in 4ustralia (1988); M McLelland, "Disciplining Australian Judges" (1990) 64 ALl 388; JB Thomas, "The Ethics of Magistrates" (1991) 65 ALl 387.