LAW, POLITICS AND INTELLIGENCE A LIFE OF ROBERT HOPE

By Peter Edwards

NewSouth 2020

ISBN: 978 1 742 235 370

RRP: $49.99 (HB)

Reviewed by Anne Henderson

 

 

In the age of post 9/11, it is hard to remember how security and intelligence was once so denigrated by the left intelligentsia and left wing activists in Australia, particularly around the time of the Vietnam War and the years of the Whitlam and Fraser governments. So much so, in 1973, the Whitlam Government’s Attorney-General Lionel Murphy instigated a raid of ASIO offices without the required permission of the prime minister or judicial warrant. But the action was counter productive in its effect. In 1974, Prime Minister Gough Whitlam chose Justice Robert Hope to head a wide-ranging inquiry – the Royal Commission on Intelligence and Security – into Australia’s intelligence networks and to make recommendations for a more sophisticated and effective operation.

It is Peter Edward’s achievement in Law, Politics and Intelligence A Life of Robert Hope to bring to life a judicial mind of great integrity while also capturing insights into the roles of the judiciary and judicial milieu of that era and how they played a significant part in Australia’s future direction. Such was the limited pool of Australia’s most eminent silks and jurists, Edwards concludes that the 1975 Dismissal crisis “can be seen as a civil war within the Sydney legal community”. This is a reference to the closeness in legal circles of figures at play such as Anthony Mason, John Kerr, Ken Jacobs and Hope himself who, while not in Australia at the time of the dismissal of the Labor government on 11 November 1975, later met with his long-time friend and colleague John Kerr for “some hours and several drinks” after which he never spoke with Kerr again.

As the title suggests, this is a biography of Hope’s professional and public life with his personal connections such as family and home life appearing occasionally by way of background to the main thrust of the work. His wife June was his backstop, filling in for him at their long-time home in Tryon Road, Lindfield while Hope developed his professional life in the city.

For all that, much of Hope’s character and personality shines through in his approach to projects and those he worked with. Coming from a long line of Anglo Protestants emerging Down Under from their distant relative Samuel Marsden, the pastoral industry of landed gentry and the church emerge as strong features of the Hope line. Edwards sees aspects of Hope’s personality to be found in his family heritage. Nonetheless, Hope enjoyed drinking during after work hours with his colleagues in chambers. He also spent nights with his boozy cousin, historian Manning Clark, even at times rescuing him from collapsing in the street. But in 1969 aged 50, with his first appointment to the bench as a member of the NSW Supreme Court, Hope cut back his daily alcohol intake to “one whiskey before and one glass of wine with dinner”.

While Hope showed a leaning to left wing views as a student, he was no bohemian and had been raised to succeed. He went straight from Sydney Church of England Grammar (Shore) to the Sydney Law School which did not include the experience of university campus life for under graduates at Sydney University’s Glebe site but was situated among the Phillip Street law buildings in the Sydney CBD. The war interrupted Hope’s studies and he enlisted in 1940, served in the Middle East and the Pacific and in later life would not talk about any of his war experiences. He completed his law degree at special exams arranged immediately after the war and passed with first class honours.

Edwards notes Hope’s quickness of mind throughout his career which on occasion could be to his disadvantage when up against powerful but slower thinking jurists such as some members of the Privy Council. Edwards comments that with Hope’s first rate ability to master information, with “his concentration so intense during working hours, he seldom worked on evenings and weekends”. As his family life grew, gardening became an outlet, as did sailing, along with extensive reading a regular pastime, reading that included collections on what Edwards describes as “well beyond the traditional boundaries of Western civilisation. Central Asia and China exerted a great fascination”.

Hope’s career moved steadily forward as he became absorbed in the law. He built a substantial practice in property and planning, lectured at the Law School and took silk in 1960. He worked as a barrister mostly before judges rather than juries, and mixed with the leading lights of the legal profession of his day. All of which offers Edwards moments of anecdote about various legal notables, adding juicy snippets such as the size and pomp of Percy Spender’s office. Hope’s appearances before the Privy Council took him on expenses-paid trips to London and had a particular effect on Hope’s appreciation of constitutional boundaries. Edwards writes:

The crossing of the boundary between the executive and the judicial branches of government, together with the relatively informal style of Privy Council hearings, had a considerable effect on Hope’s willingness to undertake royal commissions and other inquiries on behalf of the executive, but also on the way he would conduct most of those enquiries.

It was Hope’s personality to tackle any given task with serious application. Edwards charts his work in the Arts, developing the fledgling Nimrod Theatre, time at the Heritage Council and as Chancellor of the University of Wollongong – all endeavours where Hope left his mark. But it is his work leading the Royal Commission on Intelligence and Security (RCIS) that dominates his legacy and which Edwards tackles in comprehensive yet fine accessible style.

Asked to head the RCIS in August 1974 by Prime Minster Gough Whitlam, Hope would not complete the handing down of his reports until April 1977 under the administration of Malcolm Fraser. His investigation and findings, begun under a Labor government where the left of the party anticipated the enquiry would recommend diminished security activity and a downgrading of ASIO, were in fact to set up the parameters for a more independent, more widely spread and better resourced security network, with enhanced authority, findings not only acceptable to the Fraser Government but findings which would underpin Australia’s security networks for decades to come.

Edwards sees Hope’s failure to be appointed to the High Court in February 1974 as being a result of Prime Minister Gough Whitlam and Attorney-General Lional Murphy allotting three of NSW’s senior justices to positions they believed they would serve best – Ken Jacobs to the High Court, John Kerr to Governor-General and Bob Hope to complete his National Estate inquiry and be selected to do a major investigation of Australia’s security needs and network. Edwards notes the irony that Hope told Kerr on one occasion that the Governor-General position was a “dead-end job”. Whatever the job, Kerr would leave his mark on Australia’s constitutional history.

In setting up the RCIS, the Whitlam Government was seeking to put to rest not only the growing protest from the left over ASIO and its preoccupation with individuals and organisations with Communist Party links, but also the push from Defence Secretary Sir Arthur Tange who, not satisfied with having brought the three Australian Defence services into a unified whole, was pushing for Defence’s Joint Intelligence Organisation (JIO) to be Australia’s leading source of intelligence. Edwards’ account of the tussle between Tange and Hope shows there were many moments of (not always) subdued conflict with Tange’s “robust” style clashing with Hope’s indifference to Tange’s rank, addressing Sir Arthur as “Mr Tange” as if he were “a barrister being admonished from the bench”.

Edwards charts the moves whereby, over the next few years, Hope’s RCIS would counteract the wishes of both Labor’s left and that of Tange, along with fending off a push back from Department of Foreign Affairs officials. It is an intimate account of the struggle at play. Senior bureaucrats from Defence and Foreign Affairs, who saw their influence under threat, found Justice Hope a wily opponent. As the weeks panned out, Edwards demonstrates how Hope was a firm master of his investigation, well informed and with a sense of the necessary end-product. In many ways, the bureaucrats opposed to him underestimated his mastery of the situation. Edwards notes that many of the Foreign Affairs submissions often adopted a “patronising tone”. Hope’s inquiry would not just seek out the problems that existed and the reasons for them, but also recommend a whole new model for intelligence operations.

Relaxed in style, Hope’s hearings of evidence were wide and exhaustive. As well, he travelled to the UK, Europe, the USA and Canada to seek out the most up-to-date developments in intelligence agencies for the Western world. In the US especially, Hope became convinced the Soviet Union was a serious threat to Western democracies and “was impressed by the evidence that the CIA and other agencies in Washington provided on the need for all those roles, albeit in carefully separated agencies”. At home, he teased out the many shortcomings of Australia’s security bodies, even while accepting Australian Secret Intelligence Service (ASIS) submissions over those of Foreign Affairs. On one occasion, testing ASIS’ methods, Hope had himself lowered by helicopter onto a submarine in Jervis Bay. He was very much disappointed with the bungling of the exercise – mooring a small boat alongside the submarine. Edwards comments: “Their ineptitude was such that the experienced sea scout and weekend sailor later told the head of ASIS that he had never seen such ‘clumsy and chaotic’ boat handling.” Hope was a man on a mission.

It was Hope’s desire to have as many details of his findings as possible made public. To do this, he set up a process of releasing several reports suitable for public airing with classified supplements within. These reports were released in stages between 1975 and 1977. As Edwards writes:

Long afterwards people tended to refer only to the reports on ASIO, sometimes including ASIS, as these were the most controversial agencies. There has been an inevitable fascination with the extensive sections that were – and, in many cases still are – withheld from publication. While this is understandable, it obscures the extent to which Hope presented a masterplan, a carefully constructed schema for the entire intelligence system.

Hope would establish himself as the leading judicial figure on intelligence for some decades. In 1983, he would be called on to investigate the Combe-Ivanov affair – the compromised dealings of lobbyist and former National Secretary of the Australian Labor Party David Combe with Soviet diplomat Valery Ivanov. Hope conducted this enquiry along with a review the progress of changes he had recommended for Australia’s security bodies in the RCIS. The findings of his Combe-Ivanov investigation, which was conducted in tense courtroom style exchanges pushing Hope to exasperation at times, were handled robustly by the left-leaning media. Edwards concludes that Hope had appeared “cold and withdrawn” and that, “The Combe-Ivanov hearing was as painful for Hope as the RCIS had been fulfilling.”

The reaction of Hope to the controversy created in the press by commentators such as David Marr, Michelle Grattan and Paul Kelly suggests that Hope was never a political player. Those journalists had taken up the scandal as a political joust between left and right, while Hope’s style was to work on a factual and objective basis. His shock at the reaction of his civil liberties mates at the findings of the RCIS had likewise confirmed that he had never understood the political thin ice his hard evidence was tackling. Hope could manage the evidence and make the findings but was no street fighter.

Peter Edwards in Law, Politics and Intelligence A Life of Robert Hope has produced a small masterpiece. It follows the career of a senior Australian judicial figure, in significant roles, while slicing through some of the more obscure and yet vital history that pushed Australia out from its parochial remoteness into tackling the real world of national security. For all that, Hope was a true libertarian, involved in much more than the law. His contribution has been enhanced by Edwards’ biography.

Anne Henderson is Deputy Director of The Sydney Institute and author of Menzies at War, which was shortlisted for the 2015 Prime Minister’s Award for Australian History.