John Menadue. High Court judges.

Jan 4, 2016

Former High Court judges have been in the news recently and not just Dyson Heydon

In the 40th anniversary of the Whitlam Dismissal, two High Court judges at the time of the dismissal have been very much in the news. We were reminded again of the role of Sir Garfield Garwick in briefing and encouraging the Governor General to dismiss the Whitlam government. We also learnt more about the role of Sir Anthony Mason who not only coached the Governor General on what he might do but on the afternoon of the Dismissal advised the Governor General he need not see the Speaker of the House of Representatives who was kept waiting at the gate of the Governor General’s residence for an hour. The Speaker of the House of Representatives wished to inform the Governor General that Malcolm Fraser did not have the confidence of the House of Representatives and that he should recall Gough Whitlam and recommission him as Prime Minister. Sir Anthony Mason told Sir John Kerr that the speaker was irrelevant and should be disregarded. How extraordinary that a High Court judge, and later Chief Justice, could so easily put aside any concern about the separation of powers and the role of the Speaker in the Westminster system.

I had an acquaintance with another Chief Justice of the High Court when I was on the Council of the Order of Australia. In my book, ‘Things you learn along the way’ published in 1999 I said

‘As Secretary of the Department of Special Minister of State I was a member of the Council of the Order of Australia for about 12 months in 1983/84. The Chairman of the Council was Sir Harry Gibbs, the Chief Justice. I proposed that Lionel Murphy receive an AC, the senior award in the Order of Australia. Gibbs asked that the matter be deferred as he would like to consider it further. At the next meeting, Gibbs said that he had spoken to Murphy and Murphy was not interested in such an award. I was very surprised. My proposal lapsed.’ 

But that was only half the story. Several years later when I was on the board of Qantas from 1986/89, I had a discussion with Ray Gietzelt who was also a member of the board. We privately discussed the Order of Australia. Knowing that Ray Gietzelt had been a very close friend of the late Lionel Murphy, I expressed surprise that Murphy had declined any interest in an award in the Order of Australia. Ray Gietzelt said that he also would be very surprised if Murphy had declined. He said however that he would speak to Ingrid, Murphy’s wife. At the next Qantas board meeting, Ray Gietzelt went out of his way to tell me that he had spoken to Ingrid Murphy who was also confident that an offer of an award in the Order of Australia had never been made to Lionel Murphy.

All the key people in this matter are now deceased, so it is unlikely that we will get any further clarification.

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