Tiberius with a Telephone

by Patrick Mullins

  Less deadlocked, but no less contentious, was the government’s effort to ban the Communist Party. The proposal, which had originated with the Country Party, had caused much unease within the Liberals, who were ostensibly opposed to state attempts to restrict liberty and freedom. In an influential article in the Australian Quarterly, McMahon’s old master, Norman Cowper, had criticised the proposed ban, arguing that it would ‘constitute a grave threat to the right of association and all civil liberties, and make a lamentable precedent … The Communist Party will be outlawed, not because of what it or its members have been proved to have done but because of what the ruling party in Parliament thinks of it.’10

  After expressing initial unease, Menzies had turned in favour of the proposal. He brushed aside objections such as Cowper’s, and declared that Australia was ‘not at peace today, except in a technical sense’. The state of ‘cold war’ between the Soviet Union and the West required action. The Bill that he commended would declare the Communist Party and its associated bodies illegal, and dissolve them. Members of the Communist Party would be disqualified from employment by the Commonwealth and from holding office in most trade unions. In this way, Menzies argued, the government would have the power to deal with ‘the King’s enemies in this country’.

  But the Bill had its flaws, most particularly in sections 9 and 10, which dealt with the declaration and disqualification of people as communists. These sections placed the onus of proof not on the Commonwealth but on the declared person. As Menzies put it, ‘If you want to demonstrate that you are not within this net, prove it, because, after all, you should be the one who knows the facts.’11

  Controversial because it appeared to contravene the accepted principle in legal proceedings that the onus of proof was placed on the affirming party, the issue became especially glaring when Menzies, in the same speech, read into Hansard the names of fifty-three men whom he identified as members of the Communist Party.12 Within days, finding that five were not members, he was obliged to make a correction.13

  The ALP was divided. Some of its members wanted to offer unqualified support and do away with the issue. Others wanted to amend the Bill to address the problems regarding the onus of proof and the possibility of appeals to the Supreme Court and the High Court. Eventually, the latter approach won out. But the government was unwilling to give much ground: it accepted amendments on the right of appeals, but refused to countenance changes to the onus of proof. When the ALP-controlled Senate amended the legislation once more, the government refused the amended Bill, and deadlock resulted again.

  A few days later, North Korean troops invaded South Korea. Australian troops were dispatched to fight under the banner of the United Nations. Amid a wave of renewed anti-communist sentiment, the government reintroduced the Communist Party Dissolution Bill in October, lining it up as a potential trigger for a double-dissolution election.

  McMahon was an eager speaker. He had told the House in May that the ALP’s concerns about the onus of proof were ill-founded: ‘There is not a single rule about the burden of proof, and so far as I am aware, there has never been such a rule,’ he said, addressing his remarks to Evatt. Taking Evatt on in the domain where he had made his name was bold, yet McMahon had been forthcoming with his criticisms:

  How can it be argued that the burden of proof should be placed on any shoulders other than those of the conspirators and the criminals themselves? I wholeheartedly agree with the advocacy of the Prime Minister, who said that it would completely neutralise the principles of, and completely nullify, the Bill if we were to accept the contention of the Right Honourable Member for Barton [Evatt] that the onus of proof should be placed fairly and squarely on the Crown.14

  The speech was punchy and incisive; according to McMahon, this was largely the result of advice from the deputy leader of the Liberal Party and senior New South Wales Liberal, Eric Harrison.15

  A handsome, solidly built man whose penchant for rhetorical force was once checked by Menzies’ advice to use the rapier in lieu of the bludgeon, Harrison came up to McMahon in the House and asked to see his notes. McMahon handed them over, only to see Harrison tear them up with painstaking care. ‘This will be your moment of trial,’ Harrison told him, still tearing, ‘and one of decision. You are rotten when you read, but not too bad when you speak without notes.’ According to McMahon, the speech he proceeded to give prompted Menzies to tell him he would soon be in the ministry. ‘You are the next one in there,’ Menzies allegedly said, pointing to the cabinet room.

  A similar prediction was made in July 1950 when McMahon drew the eye of Alan Reid, a journalist for The Sun and close observer of the internal workings of the ALP. Slight of build, gimlet-eyed, sharp-chinned, and dabbed with thinning, auburn-coloured hair, Reid had assiduously cultivated the new generation of MPs, both in government and opposition. He perceived in McMahon skills and talents that had long been in abundance in Labor politicians but in short supply among the Coalition parties — principally, the awareness that politics was a ‘tough, professional fight for existence,’ as he would later term it.16 In a glowing profile, Reid wrote that McMahon was the first of the new Liberal members to ‘find and exploit the secret inner life of politics that goes on behind the showy and posturing front of parliamentary histrionics’.

  According to Reid’s ‘information’, McMahon was the principal internal lobbyist for changes to the rights of appeal and compensation in the Communist Party Dissolution Bill. The changes, supposedly, had been achieved by McMahon’s awareness that ‘it is much easier to get agreement in privacy than in public, where dignity is a matter of honour and “face” is all important’. To Reid, this was in marked contrast to McMahon’s colleagues: ‘McMahon got no publicity, but inclusion of his ideas.’ After favourably garbling McMahon’s resumé, Reid cited Chifley’s supposed judgement that McMahon was ‘the most promising’ of the crop of Liberal men, and, most importantly, alluded to McMahon’s comfort and ease within the political arena — ‘of being at home there’.17

  This was certainly true. Despite McMahon’s shaky start and his later statements to the contrary, he was comfortable in politics. His years living with Samuel Walder and his work at Allen Allen & Hemsley ensured he was familiar with many of the people he met in the Parliament. He had the measure of his colleagues and the political world. He was no novice, nor was he an ingénue with pressmen like Reid. The relationship went both ways: they cultivated each other.

  By October 1950, aware of the colour and attention that a full-throated, if exaggerated, political attack could bring, McMahon homed in on ALP divisions and told the House that:

  It is a well-known device to say, with tongue in cheek, ‘We agree with your objectives,’ and then systematically to attempt to prevent the achievement of those objectives. That is a Marxian tactic, and it is one freely used by honourable gentlemen opposite.18

  Boasts of his legal training and contacts within the legal world were hardly subtle. He had not heard of one eminent constitutional lawyer with objections to the Bill, he said. ‘Universally it has met with approval by all the barristers and solicitors with whom I have discussed it.’

  But he could sometimes overreach; in particular, his willingness to ingratiate himself with the fervent anti-communist sentiments of his party led him into controversy. During Question Time on 11 October, McMahon asked Menzies:

  […] whether the gentleman named H.W. Arndt, who was recently appointed as a professor of economics at the University College, Canberra, took a very prominent part, both in university circles and in public, in opposing the Communist Party Dissolution Bill? Is this gentleman a prominent and dogmatic member of the Fabian Society and did he support the Chifley Socialist Government in its attempt to nationalise the trading banks? … Does the Prime Minister consider that people of known and biased views should be appointed to a faculty in which complete impartiality and freedom from political bias is absolutely essential? Will
the Prime Minister ensure that the appointment is reviewed?19

  Menzies evaded an immediate answer by having the question placed on the notice paper. In the meantime, however, McMahon’s question about his former lecturer caused uproar and, along with his defence of the onus of proof in the Communist Party Dissolution Bill, blotted the classic liberalism in which he professed to believe. When he was asked, some twenty years later, how he could square his ‘small “l” liberalism’ with these positions, McMahon initially dismissed the question: ‘I couldn’t fiddle around with stupid little things like this.’ Then he argued that it had to be considered within the context of a long career:

  I believed — and I believed more at that time — that Communism was a danger to Australia, that this was the method chosen by my party and once it was accepted by the party naturally I would accept it too … So, you can’t look at life as though you’ve fitted it into tiny little compartments and say I’m a small-L Liberal, and then say, ‘Why did you back your party?’ I wouldn’t have been there but for the party!20

  When Menzies did provide an answer, it was careful and restrained. ‘I am not concerned with the politics of men appointed, so long as they have the academic qualifications,’ he told journalists. ‘Even if it had been the National University to which the appointment was made I could not be called upon to examine the political position regarding it. However, if somebody raised the security aspect that would be a different matter.’21

  BY the end of October 1950, Labor’s infighting over the Communist Party Dissolution Bill prompted its federal executive to intervene. Its resolution, directing the parliamentary Labor Party to allow the Bill through, forced a reluctant Chifley to wrangle his senators to pass the Bill. Immediately upon its assent by the governor-general, the legislation became the subject of a High Court challenge. Evatt, acting in accordance with the barrister’s rule of the ‘first cab on the rank’, with the fierce belief of his brilliant mind, and with the most disastrous of political instincts, led the challenge.22

  The division within the Labor Party and its continued intransigence — exercised through its use of a Senate majority that had, in large part, been established at the 1946 election — frustrated the Menzies government. Its attempts to re-introduce compulsory military training were blocked. Its attempt to resolve what Chifley called the ‘crossword puzzle business’ of deadlocks in the Senate after double dissolutions, caused by the introduction of proportional representation, was refused passage.23

  In the following year, when Parliament reassembled in March, an election was in the offing. Menzies had returned from the Commonwealth Prime Ministers’ Conference warning of war and continued unrest. When the High Court struck down the Communist Party Dissolution Bill, with only chief justice Latham dissenting, Menzies saw an opportunity to exacerbate the Labor Party’s troubles and entrench his government more securely. He told the House that it was time to ‘let the machinery of the Constitution work’:

  Let us go to our masters, the Australian people, and ask them to say where they stand on these crucial issues of the communist conspiracy, of law and order in industry, of the public safety, of the preparation of this country to meet as heavy a cloud of danger as free men have looked at for many long months. This is perfectly simple. The Government will welcome the verdict of the people.24

  But the occasion for the election was not the Communist Party Dissolution Bill. It was, instead, the stalled Commonwealth Bank Bill, which, following its reintroduction in October, had been held up in the Senate before being referred to a Senate committee. Though some suggested this was a reasonable stage in legislative proceedings, Menzies obtained legal advice to support his contention that the Senate had failed to pass the legislation, and therefore requested that the governor-general dissolve both houses of Parliament to break the stalemate.

  McMahon had little to fear in the election. With no chance that Edith Shortland would reprise her candidacy, the considerable margin he enjoyed was certain to increase. He was also aided by indecision in the Labor Party about its candidate.

  John Kerr, then thirty-six years old and a barrister in sympathy with the right wing of the ALP, had been considering an entrance to politics for some time. Possessing a high self-regard, he surveyed House of Representatives seats in New South Wales as the election approached in 1951. After seeing that a winnable seat was ‘not available’, Kerr was told that he should stand nonetheless and earn ‘an honest scar’ in the service of the party. He was thus persuaded to stand against McMahon in Lowe.

  But amid Kerr’s abilities and ambitions was a crucial streak of vanity. Glumly conceding defeat before the contest even began, that vanity began to get the better of him. Kerr had no appetite for a loss. An honest scar held no appeal. When Dr John Burton, the young and iconoclastic high commissioner to Ceylon and former secretary of the Department of External Affairs, rang him to say that he was going to gamble on a political career, Kerr leaped at the chance to squirm out of his candidacy. ‘I told Burton that I had the Labor endorsement for Lowe; that it was not in my opinion winnable, that I was not very keen to stand myself and would step aside in his favour,’ Kerr wrote.25

  Burton took him up on the offer. A few hours later, he was on a dawn plane from Ceylon to Darwin. He left without his passport, without the knowledge of his minister, without resigning from his position, and, thereafter, without any kind of a future in the public service. Landing in Australia on 27 March, he was endorsed the next day as the ALP’s candidate in Kerr’s place. Burton was not unaware of the difficulty of the task that awaited him, but he had his reasons. ‘I walked out because I objected to certain things I was ordered to do,’ he told journalists. ‘I cannot discuss what they were, but they were against my conscience.’ He had sought preselection for the ACT seat in 1948, but without success. However slight it was, this, in 1951, was his chance.26

  Ostensibly called to resolve the problem of the banking Bills, the election campaign was, in the event, all red. The ALP’s internal divisions were mercilessly exploited by the Coalition, which hammered Labor on its use of the Senate to frustrate the government’s programme of reform and its alleged softness on communism. The Coalition’s anti-inflationary measures — principally, a temporary 20 per cent tax on woolgrowers, to combat the international wool boom — lost it some support, but it came through the polls relatively unscathed. It lost five seats in the House, but was returned to office with a 32–28 majority in the Senate.

  In Lowe, McMahon had no trouble. The circumstances of Burton’s departure prompted a lengthy outburst of criticism from the minister for external affairs, Percy Spender.27 During the campaign, Eric Harrison travelled to Strathfield to attack Burton, calling him ‘completely untrustworthy’.28 Years later, McMahon would laugh about Burton’s cack-handed candidacy, its ineptitude and silliness — and why would he not? With 22,000 votes, a sharp increase on his 1949 majority,29 McMahon’s majority was enough to assure him that promotion could now be a realistic prospect — and not one he was willing to give up lightly.

  Three weeks after the poll, Menzies announced a reconstituted cabinet of nineteen ministers, with a twentieth to be added once an amendment to the Ministers of State Act had been passed by Parliament to allow it. Speculation abounded immediately about who it would be. Within days, word had leaked that Menzies intended to promote Fred Osborne, the member for the New South Wales seat of Evans.30

  Dark-haired and sharp-nosed, Osborne was a decorated war hero, a well-regarded solicitor, and an ardent anti-communist who had also entered the House in 1949. He had a soft, gravelly voice and an incisive manner that had allowed him to make strong contributions in debates on the banking Bill and in foreign affairs. Like McMahon, Alan Reid had picked Osborne as someone worth watching.

  Osborne heard enough about the rumour of Menzies’ intent to check its veracity. Through friends and intermediaries, the forthcoming promotion was confirmed. But the time between Me
nzies’ announcement of the opening spot and his statement of who would fill it left a crucial gap, a window of opportunity.31

  Three New South Wales Liberals went in secret to Eric Harrison, in his capacity as the senior minister in the state, to voice their objections to Osborne’s promotion. Osborne did not enjoy their confidence, they told Harrison. They thought him too arrogant, they said.32

  Surprised, Harrison dutifully reported the meeting to Menzies.

  The prime minister was similarly surprised, but he noted the objections. And so, come July, when he announced the new minister, it was not Osborne. It was McMahon.

  Surprised, disappointed, and humiliated that he had been led astray so publicly, Osborne was only then told about the deputation that had waited on Harrison. He went to see the deputy party leader, and demanded to know if it was true. Harrison confirmed it.

  ‘I want to ask one thing only,’ Osborne said to him, suspicions hardening. ‘Was Bill McMahon a member of that deputation?’

  Harrison looked down his nose. ‘Yes.’

  The experience profoundly affected him, Osborne said later. He had gone into politics full of self-confidence, ebullient about what he could do. This experience inflicted an irrevocable wound. It ‘destroyed’ his confidence and optimism.

  Osborne blamed Menzies for allowing the situation to occur, Harrison for not telling him about the deputation, and McMahon for the blatant treachery. He was surprised by it. They had had some association, after all: fellow lawyers, both from Sydney, from adjoining Sydney seats. McMahon had given Osborne a lift in his car to Canberra before Parliament had opened, so they could work out where they would sit in the House. This seemed a betrayal of all that.