Australian Biography

James McClelland - full interview transcript

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After the dismissal and the loss of the election following it, did you feel it was time for Gough to go?

I did, but I just couldn't bring myself to vote against him. It was an act of pure sentimentality. Hayden challenged, I think a year or so after the 1975 election. And I was quite friendly with Bill. I remember him coming around to my rooms, just before the ballot, and he said, ‘Jim, I've got an awful feeling that you're not going to vote for me.’ I said, ‘No, I'm not.’ He said, ‘Well, if it's only because of a sentimental attachment to Gough, I'll forgive you,’ he said, ‘but if it was because you thought I wasn't up to the job, I'd be offended.’ And I assured him that it was just that, that I just couldn't bring myself to wield the axe on the neck of such a figure as Gough.

And did you think that Bill Hayden was up to the job ...

Yes.

... or were you one of those who thought he should be replaced by Hawke?

No, I thought he would be up to the job. When it came to the ... well, I thought he made a mess of the 1980 elections. I think if he'd been a bit better, he'd have won that. He was short on, well, for lack of a better word, charisma. He was an uninspiring sort of bloke, Bill. Intellectually he was better than average. But when it came to deposing Hayden and replacing him with Hawke, I was against that. I ... not out of any great faith in Hayden, whom I'd begun to think of as barely up to the job, but out of mistrust of Hawke whom I always regarded as a hollow man.

Have you changed your mind about that?

No, no, Hawke is a totally shallow creature, I think, who hardly wrote a page in the history books.

And you've also changed your mind a little about Bill Hayden, haven't you?

Yes, I have indeed. I thought it was a very, very poor thing for him to accept the Governor-Generalship. Primarily because of what I think of the Governor-Generalship. I think a man who's been an active politician, who's been near the centre of government in the country like Bill was, should be above taking such a sinecure. But I think Bill's fundamentally a mean man. He was notoriously mean and to him it was just a way of living tax free and for five years accumulating a few bob. He ... I saw somewhere that he gets a 15,000 dollar a year dress allowance. That would go straight into the bank. He's not a man to waste money on clothes. But I finished up not liking him really. He invited me a couple of times to Yarralumla and I knocked him back.

And returning to John Kerr, did you have any reason to believe, in the period that he was Governor-General, that in fact he had shifted his allegiance not just to the big end of town, but to the other side of politics?

Well, I would have thought he'd have done that a long while before he became Governor-General. I would have thought when he was Chief Justice of New South Wales he already would have been voting Liberal. And not only that, he had a sort of resentment of Gough. He considered himself Gough's intellectual superior, and of course, Gough's attitude towards him was not conducive to any sort of affection or desire to preserve him. On Kerr's part, Gough patronised him shamelessly, made it perfectly clear to him that he regarded him just as a cipher. And that got Kerr's back up, I think.

Do you think that Kerr ever actually had specific moves in the direction of the Liberal Party? Did he associate ...

Oh yes, I know he was. I remember Billy McMahon pulling me up one day, it was after the dismissal, and in his high-pitched, piping tones he called out to me in the corridors one day, and he said, ‘I'd like to tell you a Kerr story.’ He said, ‘Kerr came to me one time when Ming (he was referring to Menzies) ... when Ming was still in power and he said to me, “Bill, will you speak to Ming about getting me a safe Liberal seat?” And he said, “Not only that, would you make it clear to Menzies that I wouldn't contemplate going into the parliament unless I could be guaranteed an immediate place in the ministry.”’ And Bill said to me, ‘Well,’ he said, ‘I put it to Ming and he said to me “Yes and no.” Meaning he would be glad to have Kerr in the parliament, but there'd be no guarantee of an immediate accession to the ministry.’ And Bill said, ‘That was the last I heard of it from Kerr.’ Because there was no doubt about where his heart was at that stage.

Now, deciding to leave ...

Before you go on, that would have meant that having sampled all that the law had to offer, and still harbouring these ambitions to be the top dog, he saw that Menzies was reaching the end of his reign, and that there was nothing conspicuous in the way of talent in the rest of the Liberal ranks. And it would have been to Kerr a way of getting the job he aspired to, through the Liberals. That's what he was after.

The public has this impression, or are led to believe, that people enter politics because they believe in something. In your experience, do you think that's true of most politicians or are some of them just there for the career?

No, a lot of them are just time-servers, I think, on both sides. There were, you know, on the Liberal side, they're sort of failed estate agents and mediocre accountants, people who want to identify with the big end of town, but who are really nobodies and think that they'll get a little bit of status for themselves by getting into parliament. I think that's particularly true on the Liberal side.

And not so true on the Labor side?

Oh yes, sure, it's full of trade union hacks and people who could never really aspire to any paying job in the community that would have the status of a parliamentarian, even though I don't believe that status is all that high. But there are a lot of people to whom it would seem high.

Now, having decided to go to the Bench, you approached Neville Wran about it. And what were you offered?

Well, he was thinking then of setting up an administrative tribunal, which would have suited me fine. But for some reason or other he went cold on that job, and when I spoke to him he said, ‘Well, I've got a vacancy in the Industrial Commission,’ which of course was familiar territory to me. And I said, well, I'd take that. And I was on that. I was in that job for about 18 months, I think, and then Paul Landa, who was Minister for the Environment, had this project of setting up the Land and Environment Court. And he asked me if I would take on the Chief Judge of the Land and Environment Court. And first of all, I knocked him back. I looked at the new legislation and legislation affecting that field, and I decided it was ... that I couldn't be bothered, you know, just sheer laziness, that I couldn't be bothered mastering this new field of law, which was quite complex. But I found the Industrial Commission job so monotonous that I decided to give the other a go.

And when I got there I found that, you know, I set the court up, made all the rules, barred wigs and gowns, all that sort of nonsense. And I found the issues before the court were so large, you know, involving millions mostly, big developments, that the smartest barristers in town were appearing before me regularly. And I'd never considered myself much of a lawyer, I'd been more of a legal entrepreneur. I'd known how to get work in and superintend that. But for the first time in my life, really, I had to become a lawyer in the black-letter sense of mastering a certain sphere of the law. And that was quite an effort for me because I'd been out of it for so long. But just as a matter of vanity, in order not to appear a bit of an idiot in front of these high-powered barristers, I got on top of it. In the end I could handle it as well as the people appearing before me. And I don't think I made a fool of myself there.

Has this been a bit of a pattern with you in your life, that you find challenges to do something that you wonder whether you can be bothered with?

Yes.

And then discover that in fact you can do things really easily?

Yes, yes I do. There's a certain fickleness to my life I suppose ... [interruption] ...

... [question repeated] ... Has that been a bit of a pattern, do you think, in your life, that you've avoided things that were ... looked like a big, big effort but when you actually take them on, you actually do them well and easily?

I suppose you could say that. I find it hard to be totally persuaded of the shattering importance, for instance, of being a parliamentarian or a minister or a judge. I lack that capacity to kid myself that I'm doing some earth-shattering job. As soon as I get into a job, and I decide that I've got to get on top of it, I'm inclined to get a bit bored with it. Great character weakness, but that's the way I am.

But the issues of the environment at that particular time in our history, as it was opening up [were] a monster political issue?

Oh yes, sure.

They were quite unboring really, weren't they?

Oh yes, sure. For the period that I was on the Land and Environment Court, I absorbed myself in the issues and in the law of the environment. And it was a fruitful period of my life. I enjoyed it.

What did you accomplish?

I think I set the court on the right track. I gave a few key decisions that didn't please the government, as a matter of fact. One of the first decisions, big decisions that I made, was the Parramatta Park case. There was a move to build a football stadium where an old one had existed, which had been filched from Parramatta Park. And there was a local movement against building the stadium there, and I believed that it should go back to be just parkland, and I so found in my judgement. That displeased Neville Wran considerably.

For political reasons, the Parramatta Football Club was, at that time, a fashionable club. It had won the premiership I think the year before. And the Parramatta football fans were a solid voting block that wouldn't have liked the idea that they weren't having this big, spanking new stadium that they'd been promised. So Neville Wran introduced a special Act of Parliament overruling ... oh first of all they appealed against my finding. It went to the Supreme Court and the Supreme Court upheld my ruling. Then he introduced a special Act of Parliament to override the court's decision.

Did he have to introduce any others during your time there?

Yes, he did, and it was dating from about then that my friendship with Neville cooled. We saw less and less of each other, and then one of the ... another case came before the court ... I didn't hear it myself, it came before one of the other judges, relating to a shopping centre at Eastgate. It's out Pagewood way. Now that development was strongly opposed by some other business interests out there, Grace Bros, Woolworths, etc, that didn't like the idea of the competition that they would get from a new supermarket. And they opposed the granting of this application, the development application. And it came into my court, before another judge. Ran for, off and on, for several weeks. ... [this section of the transcript has been deleted for legal reasons] ...

What made you leave the Land and Environment Court? Was it because they kept putting Acts of Parliaments that overturned your decisions?

No, not really. I would have seen out my time there. I was enjoying myself and I had about another, oh, less than a year to go, I think, when Peter Walsh, the minister in Hawke's government, got in touch with me and asked me if I would head up a royal commission into the nuclear tests of the 1950s. And I thought, ‘Well, here's something new, why not?’ And I took that on, and that saw out my judicial time and a little more. That was the Maralinga inquiry.

And was that ... did that turn out to be what you were expecting when you took it on?

Well, it was very interesting, but as I realised in the course of it, it was really a classic royal commission in this sense ... that when governments are confronted with a problem to which they don't know the answer, one of the ways of dealing with it is to set up a royal commission. That postpones the problem. And they're not bound by the findings of the royal commission. It sweeps it under the carpet for a while. And that's what the government was doing, because it was being pestered by people who at worked at Maralinga during the trials, and who were now claiming that they had various cancerous conditions due to having been exposed to radiation. And that was why they set up the royal commission. And of course, I think we found all sorts of ... we made a few findings that embarrassed them, especially about cleaning up the range.

So ...

It quickly became, for me ... early on I was confronted by some very arrogant treatment of the colonials, by the British authorities, who refused to cooperate at first. But I shamed them into appearing. And when we went to England we met all sorts of obstruction in the way of provision of documents and we were really treated like colonials. And of course, our findings were a bit of a shock. Our main finding was that the range should be cleaned up to a stage that it was in before the British fouled it up, and that they should meet the bill. There were long negotiations then between our government and theirs. Our government, I think, pussy-footed over it. They should have screamed from the house tops, if you lend somebody your house, you expect it to be tidy when you come back. They left plutonium lying all over the place, a danger to Aboriginal people wandering through, and had made a purely cosmetic clean up, and of course the supine Holt government had signed an agreement that that was all they needed. Then it emerged later, primarily from our investigation, that it was in an awful mess and it would cost a few hundred million to put it into the condition it was in before the tests. And I, and the rest, the other commissioners, recommended that they do the job properly and pay for it. But finally there was some sort of a pallid compromise. They agreed to put in $20 million or something like that, which would only scratch the surface.

Has it been cleaned up?

No, I don't think so.

You also found that the safety of the people involved had not been looked after properly?

Yes, that's right.

How did that come about, that it had been so neglected?

They had what was called a safety committee, which was supposed to be totally independent of the nuclear taskforce that the British assembled for the job. And it was, consisted of, the safety committee consisted of Australian scientists. But was headed by an English scientist who had come to Australia and settled here, but who was an unreconstructed colonial despising, old-fashioned Pom. A bloke named Titterton, who's since died. And he brainwashed the safety committee into accepting less than perfect safety measures when the tests were held.

He gave evidence at the commission?

Oh yes, he was a ... we clashed repeatedly. He almost seemed to believe that a little bit of radiation was good for you. He'd become totally obsessed with nuclear physics. He'd taken part actually in the, in the ... in the American experiments before their bomb was made. He'd actually pulled the trigger, I think, on the first bomb. And that became the love of his life.

[end of tape]

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