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Has an Ex-Labor Judge been in contempt of court?

Statements reported in today's papers made on the eve of Australia's most important free speech case have led to claims that an Ex-Labor judge is trying to influence legal proceedings in Victoria in an apparent contempt of court.
Former ALP Appointed High Court judge, Anthony Mason was reported in today's papers to have said yesterday that the Federal Libs, in particular Federal Attorney General, Daryl Williams, weren't defending the High Court.
No doubt this comment made and widely publicized yesterday and today, via the AAP newswire and major tabloid papers, along with other comments like it, were aimed at the Victorian Court of Appeal hearing a case today where fellow ALP Lawyer, Rob Hulls (Attorney General in Victoria) is ostensibly defending the courts of Victoria from criticisms.
In the "truth on trial case" being heard today, corruption author Raymond Hoser faces charges for publishing truth about the legal system, including judicial misconduct.
Hoser lost in the Supreme Court two years back when a Labor appointed judge, Geoffrey Eames sided with his friend Hulls, who had charged the case.
Resenting the in-house inquisition, Hoser appealed and Hulls in response elevated Eames to the court of appeal, hence putting the integrity of the appeal potentially in jeopardy.
At least two of the three judges appointed to hear the appeal, now sit regularly with the judge Hulls elevated to this court (Eames, who had earlier found against Hoser).
Hence the probability of one judge finding against another they sit with on a regular basis is unlikely.
Hoser has consistently claimed that constructive criticism of the courts strengthens them, not attacks them and says that the pretense by Hulls and other Labor Lawyers that the courts are perfect and infallible is itself damaging to them.
The case against Hoser is merely a witch-hunt to stop Australia's leading corruption author (nine books), from disclosing more corruption in the Victorian Government.
Mason's comments yesterday, on the eve of this important appeal case in Melbourne's Supreme Court today, appear to border on contempt and will not doubt be read by the trial judges who may well take it as a signal to punish Hoser for doping nothing more than publishing the truth.
The punishment itself being meted out on the false pretext of "protecting the court".
Further inquiries call WBA on 0412 777 211
Case starts today at 2.15 PM in the "red court", Melbourne Court of appeal, Melbourne, Australia.
Media will be in attendance, including TV crew who are doing a number of stories on this and related matters.
Further material of relevance follows below:
Below is from :
Williams under fire for failing to defend High Court
October 6, 2003
Former High Court chief justice Sir Anthony Mason today criticised outgoing attorney-general Daryl Williams for his failure to defend the nation's top court.
Speaking on the centenary of the High Court, Sir Anthony said Mr Williams' failure to defend the courts had made them more vulnerable.
"It makes the courts, and in particular the High Court, a little more vulnerable because the attorney-general's political colleagues know that the attorney-general is not going to defend the court," he told ABC radio.
But Prime Minister John Howard said his government had only strengthened, and never damaged, the High Court.
"Good heavens no, what an extraordinary proposition," he told ABC radio.
"We have not damaged the High Court, we have strengthened it by making very good appointments."
Immigration Minister Philip Ruddock will be sworn in as Australia's new attorney-general tomorrow as part of Mr Howard's ministerial reshuffle, with Mr Williams moving to the communications portfolio.
Meanwhile, Sir Anthony said when he presided over the Mabo decision, he did not realised it would put people's homes at risk.
"I didn't appreciate that there would be representations that the decision, in a sense, would put at risk people's title to their own backyard," he said.
"Those apprehensions were entirely unjustified."
AAP This story was found at:
Sir Anthony Mason
Sir Anthony Mason (born 1925). A Justice 1972-87. Chief Justice 1987-95. Admitted NSW Bar 1951 (QC 1964). Served in RAAF, World War II. Commonwealth Solicitor-General 1964-69. Judge NSW Court of Appeal 1969-72.
Contact : Whitlam Institute
Phone : +61 2 9685 9187
Fax : +61 2 9685 9110
Email :

Mr Whitlam's article for Sydney Morning Herald, 15 January 1994

Most people know that, during the Parliament's luncheon adjournment on 11 November 1975, the Governor-General of Australia, Sir John Kerr, sacked me on the ground that the Senate had failed to pass my Government's Budget. Most people know that he did so after seeking the opinion of the Chief Justice of Australia, Sir Garfield Barwick, the previous day.

What shocked even conservatives at the time was that Kerr acted without divulging his intentions to me or to the Queen, who had appointed him on my advice and who would never act in this fashion in her United Kingdom.

What has dismayed Australians in the last two weeks is the revelation that, at Kerr's request, Barwick showed another justice, Sir Anthony Mason, now the Chief Justice, the letter he was about to deliver to Kerr.

ABC viewers will not be surprised that its lawyer Bruce Donald was soft in his interview with Barwick. In particular, Donald failed to press Barwick about his perverse constitutional theory that a Government with the confidence of the House of Representatives but not the Senate cannot govern.

Readers of this column a week ago will not be surprised that Gerard Henderson did not pursue Barwick's confidential account to him in May 1990. Nor will they be surprised that Henderson still condones actions of some senators in October and November 1975 but does not credit the abundant evidence that other senators were on the verge of changing their votes in order to pass the Budget.

On Sunday 19 October 1975 Kerr, in a call to Kirribilli House, asked me whether he should consult Barwick about the Senate action, in response to Malcolm Fraser's decision, in delaying the passage of the Budget bills. I told him that he should not, and I gave him my reasons:

1. The last Chief Justice whose advice was sought on an election was the founding Chief Justice in 1914; the Governor-General had sought his advice with the consent of the Prime Minister.

2. In 1921 the High Court decided that it could not give advisory opinions; if the Court cannot, then no single justice, not even the Chief Justice, can do so.

3. The matters upon which the Chief Justice would be asked for his opinion could well come before another justice or the full court for argument and decision.

4. While the High Court had never invalidated any of my Government's legislation, Barwick had frequently been in the minority who would have invalidated it.

On Tuesday 21 October, in a call to Parliament House, Kerr asked me for an opinion from Kep Enderby, the Attorney-General, and Sir Maurice Byers, the Solicitor-General. Enderby gave his and Byers' opinion to Kerr on 4 November.

Kerr did not tell me on 11 November 1975 that Barwick's advice had been in a letter. When I reminded him that I had advised him not to consult Barwick, he merely shrugged. The letter was not released until a week later after Enderby had published his and Byers' advice to Kerr. On the ABC Barwick did not say and was not asked whether he knew that Kerr had asked me if he should consult Barwick and that I had advised Kerr that he should not. Nor did he say nor was he asked whether he knew that Kerr had asked me to obtain an opinion from Enderby and Byers and that Enderby had already given him the opinion.

The question on which Barwick's advice was sought and given was much more a political than a constitutional question. This , of course, is the central truth of the whole matter: the political crisis was close to settlement by political means. Barwick has never shown any misgivings about the composition and conduct of the Senate in October and November 1975. Two State governments had changed the composition of the Senate elected by the people in May 1974. In particular, the Queensland Government and Parliament had appointed a non-Labor person to replace a deceased Labor Senator. The non-Labor replacement never voted on the Budget bills. If a Labor replacement had voted on the crucial motions to delay the Budget bills, the votes would have been even and the motions would not have passed.

A dozen Coalition senators had been first appointed to the Senate by State Governments to replace departed senators of the same political persuasion; many of them were about to repudiate Fraser's tactics. Fraser conned Kerr into believing that a majority of senators would in the end vote to reject the Budget bills; Fraser was saved by Kerr.

Fraser had not merely spurred the Senate into stalling the Budget bills, he had spurred the Senate into rejecting, twice, 21 other bills. During the luncheon adjournment on 11 November 1975, Kerr commissioned Fraser as Prime Minister on condition that he advise the dissolution of both houses of parliament on the ground that the Senate had twice rejected the 21 other bills.

If Kerr had genuinely believed this ground, he would have taken two courses available to him. He would have secured an undertaking from Fraser that, if he won the elections, he would reintroduce and support the 21 bills. He would also have required Fraser to advise that a referendum be held on the proposal, twice rejected by the Senate, to ensure that elections for both Houses are always held on the same day.

The ultimate constitutional outrage occurred after the luncheon adjournment. The Senate passed the Budget bills. The House of Representatives defeated Fraser's motions, declared no confidence in him as Prime Minister and asked Gordon Scholes, the Speaker, to inform Kerr that I should be restored as Prime Minister. Kerr defied the House. He retained Fraser so that he could countersign the proclamation to dissolve both Houses. Only then did Kerr receive Scholes.

In referendums in May 1977, a large majority in all States, incensed at Bjelke-Petersen's conduct in tainting the Senate, changed the Constitution to ensure that any vacancies should be filled from the same party to which the former senator belonged at the time of election, and, incited by the conduct of Barwick, by then nearly 74, changed the Constitution to ensure that no future justices of the High Court could remain in office beyond 70 years of age.

I myself realise that many are puzzled that I do not resile from the view I expressed last July:

I have had some interest in constitutional and administrative matters for 60 years. For the first time in my lifetime the High Court has in Sir Anthony Mason a Chief Justice who is adequate in both national and international terms.

The apparent pretext for showing Barwick's letter to Mason was that Mason had been Solicitor-General before he was appointed to the Court. Barwick did not tell Henderson or Donald that Mason knew, or that he had told Mason, that Kerr had sought and received contrary advice from me, Enderby and Byers. I would be shocked if Mason had expressed a view after knowing or being told. I find it hard to believe that he did know or was told.

Sir Anthony has led the Court to reverse Barwick's notorious decisions on the laws concerning income taxation and interstate trade. He and the other justices now know and heed the common law as it has been developed in the United States, Canada and New Zealand and not just in England. He and they are aware how legal principles are developed and applied by the United Nations and its specialised agencies. In appropriate gatherings and journals Sir Anthony has explained the Mabo judgement. The present High Court is composed of persons who understand the changes which have occurred and must occur in a country with Australia's location and population.

On the ABC Barwick repeated the doctrine which he set out in his letter to Kerr on 10 November 1975: "A government having the confidence of the House of Representatives but not that of the Senate, both elected Houses, cannot secure Supply to the Crown".

Thus in 1975 Barwick challenged the legitimacy of the last Menzies Government, which lost its majority in the Senate the year after Menzies told Barwick to make an immediate decision: resign from Parliament if he wanted to be Chief Justice or remain in Parliament if he wanted to take his chances against Holt to be the next Prime Minister.

In 1994 Barwick challenges the legitimacy of the Keating Government, which had difficulty getting its Budget bills through the Senate in November 1993. There was, however, no prospect that Hayden would have sought Mason's advice on the situation or that Mason would have given it.

According to Barwick, the last Fraser Government lost its legitimacy when it lost its Senate majority on 1 July 1981. According to him, the Holt, Gorton, McMahon, Whitlam and Hawke Governments never were legitimate; none of them had Senate majorities.

It can never be overemphasised that the 1975 Budget was never rejected; it was only stalled. The senators never voted to refuse supply; they simply refused to vote on it at all. One defector would have sufficed to end the deadlock; two would have sufficed to end Barwick's aberrations on politics for all time. Just as his successors on the High Court have ended his aberrations on the law.

On Thursday 6 November 1975, in response to an urgent and unusual request from Yarralumla, the Governor-General's official residence in Canberra, Alan Christie, the senior mechanical engineer in the technical services section of the Department of Housing and Construction, and Bob Cameron, a maintenance officer, inspected His Excellency's study. It had been discovered, the officers were told, that conversations in the study could be overheard in the adjoining room used by secretarial staff. The officers were asked to arrange for the study to be soundproofed. Their inspection lasted from 5.30 p.m. to 8 p.m. Next morning, George Maren, a foreman in the Department, was instructed, on arrival for duty, that he and an apprentice were to go immediately for a job at Government House. They arrived at 7.45 a.m. and stayed till noon; they returned at 2.30 p.m. and stayed till 4.05 p.m. Since the job had not been completed and was said to be urgent they were told to return on Saturday afternoon; they were there from 2.00 till 4.00 p.m. Painters came in on Sunday to complete the work.

On 11 November 1975, in his newly soundproofed study, the Governor-General, Sir John Kerr, dismissed me as Prime Minister of Australia.

Trivial in itself, the soundproofing episode takes its place in a pattern of conduct of which it is by no means the most bizarre example. It is not only interesting as evidence of the kind of bunker mentality which seems to have descended upon Yarralumla, although I should have thought my colleagues and I, not Sir John Kerr, were the ones under siege. The real point, however, is that it illustrates perfectly the essential nature of Sir John's conduct. The key to the entire operation by which my Government was dismissed was secrecy. Surprise was all. Secrecy was not incidental to the enterprise; it was essential.

The Truth of the Matter

(Penguin 1979)

Who for instance, is "the third man" - Sir John Kerr's other secret adviser?

It is just not good enough that his name, his position and the nature of his advice should be preserved in some sort of time capsule, to be opened only when all of us are dead.

By all the constitutional rules, I was certainly entitled to know then, as Prime Minister, who was advising Sir John Kerr, but all of us are surely entitled to know now.

Sydney Journalists Club

14 February 1979

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