Humphrey McQueen on judicial independance - with Craig Johnstone in mind

Below, I trust, are some notes for use as you may find relevant, in whole or in part, attributed or not, by email lists or in print form.

The old contemptibles.

The imprisonment of activist for workers’ and peoples’ rights, Craig Johnston, has raised questions about the independence of the judiciary.

Two styles of intellectual practice operate in a class society. On the one hand are the magistrates who believe whatever the policemen say about the behaviour on a picket line. On the other, a judge may take a long-term view of the interests of the property class as a whole in order to let a militant go free for once. The differences are in the practices, not the people or the status of their office. Some judges can be narrowly instrumental. The occasional magistrate will be far-sighted.

Under capitalism, the bias in the legal system is not the result of the social background of the judges or of their prejudices. The decisive factor is that the system of law has developed as one of the devices for managing productive property. In short, it is about commerce and crime.

Of course, those structures can do nothing. They require real, living judges to put them into practice. Below are some instances of judges, often the highest in the land, revealing an independence from objectivity more appropriate to a pimp than a philosopher.

1. During the 1894 trials at Rockhampton of striking shearers, presiding judge Harding engaged in the following exchange with a witness:
Witness: There were 200 men in the crowd at Clermont.
His Honour: It is a nice pleasant country this, where such a state of things can exist.
Mr Dickson: How many policemen were there?
Witness: Four.
His Honour: Let me see. That all had six-shooters. Four times six are twenty-four. There would not have been many boo-hooed the second time, I had been one of them.
Mr Lilley (for the defence): You cannot shoot men for disorderly conduct.
His Honour: Very probably they could have found justification.

2. In 1919, the second Chief Justice, Adrian Knox, introduced a different species of prejudice. Not wanting to be seen to be biased, Knox sold his shares, even those in the Colonial Sugar Refinery, the monopoly that his father had expanded on the backs of indentured Island labourers. Realignment of his finances could not sever attachments to his father’s circle. The 1920 diary of the Managing-Director of the BHP, G. D. Delprat, documents a free-and-easy interplay between magnates and the judiciary that had to adjudicate between them and their workers:
15 May: Dined at Melbourne Club with Chief Justice (Knox), Judge Stark [sic], Judge Cussen, Judge Duffy, General White, Admiral Grant.
2 October: Taken silver plate out of the safe deposit for Tuesday’s dinner.
4 October: Invited Chief Justice and Stark[e] to dinner, next day – they accepted.
5 October: In evening gave dinner party at my house … Guests [names four BHP directors] and Rt Hon. Chief Justice Knox and Mr Justice Stark[e].
Ten days later, the chair of the Coke Industry Tribunal, Mr Hibble, granted pay rises to miners employed by the BHP. Delprat challenged the validity of Hibble’s award before the High Court.
18 December: High Court decision – (in our favour).
This confusion of the bench with boardroom continued until March 1930 when Knox resigned as Chief Justice in order to manage his half-share in the million pound estate inherited from the New South Wales Coal Baron, John Brown. The government had dropped its prosecution of Brown for locking out his wage-slaves in 1929.

3. After several years as the President of the Commonwealth Arbitration Court, High Court justice Chas Powers wrote to the Attorney General begging for a knighthood because he had blocked the findings of the Basic Wage Commission to add 39 shillings a week, restored the 48-hour week, and cut 12 shillings a week off the wages of fitters and turners:
All these were very unpleasant duties but necessary in the interests of the Commonwealth … Imagine for 11 years refusing requests to increase the basic wage … Where men have families of more than two it is hard work to insist on them getting only the basic wage.
Powers got his gong in 1929.

4. The next Chief Justice but one was Sir John Latham who, as anti-Labor Attorney General had amended the Crimes Act in 1925 to outlaw sedition in an attempt to advance his numerous proceedings against militants, who would not be intimidated. Latham had a long history with Naval Intelligence and went on to become founding patron of the CIA-funded Congress for Cultural Freedom in 1951.

5. Another Tory Attorney-General who went on to bestride the high court was Sir Garfield Barwick, that “walnut-hearted” anti-Semite. Barwick led the Menzies government’s case before the High Court to ban the Communist Party in 1951. He made amends for his failure on that occasion by rescuing ASIO from the mess it got itself into during the Petrov Commission. Barwick’s other connections with the security forces can be inferred from his updating in 1960 of Crimes Act to make sure that no sedition went unpunished. Barwick’s predecessor as Chief Justice, Owen Dixon, had also advised ASIO and the Petrov Commissioners.

6. The judge who gaoled Clarrie O’Shea, Sir John Kerr, came with equally long connections to the world of spooks from his wartime service. Kerr was active in several CIA fronts, such as LawAsia and Quadrant. He later did his duty by sacking Whitlam who had just exposed the CIA’s presence at Pine Gap.

Slips from judicial objectivity have not been confined to Australia. In 1794, at the Edinburgh Trial of the Scottish Martyrs, one of the accused, Joseph Gerrald, argued that his advocating reform was not a bad thing because Jesus Christ had also been a reformer. The Lord Justice-Clerk, Lord Braxfield, responded: “Muckle he made o’ that; he was hanget”. The reformers were transported to Australia. The government was too scared of the popular reaction to hang or flog them too.

You will be relieved to see that all these cases relate to judges who have gone to their rewards. That elevation is just as well, because if it were necessary to expose the class bias of any sitting judge, he or his mates would do you for contempt.