Cold Light (44 page)

‘Of course I understand that,’ she said, with growing irritation. ‘But I can’t help feeling that we live under two constitutions now – the national Constitution of Australia and the Universal Declaration of Human Rights.’

‘But, Edith, a ratified agreement is a non-binding instrument,’ Latham said, still in his teacherly voice. ‘It is still not
law
.’

‘John, I spent twenty years of my life with the League – I know about treaties and non-binding instruments. But the Declaration at least represents a universal
voeu
, a wish. It is intrinsic to the human condition. An accepted standard of world behaviour.’

He smiled. ‘You mean that the Declaration is something that is so clear that no evidence is required to establish its clauses. What I called in my judgement “notorious facts” of law. You argue that the clauses of the Declaration are
self-evident
? I think we are very far from that position with the Declaration. As fine as it may sound. Many nations would not see it as
self-evident.
’

He looked at his watch. ‘Shall we go to table?’

They stood up. He guided her towards the dining room with his arm, which remained at the small of her back as they entered the dining room. ‘Yes, Edith, the Declaration is best seen as what you called a
voeu
. It was a vote that was less than non-binding. It was a wish, a prayer. Something politically desirable, but out of reach. Somewhere between a hope and a dream.’

The dining room had dark wainscoting, a fireplace and leather-seated chairs. She liked it. ‘We do not know when a desire, a dream – a
voeu
– can spring to maturity and become a commanding political reality,’ she said.

As a waiter pulled out their chairs, Latham said, ‘It is the timescale that matters. Will it be reality next month or next century?’

‘We never know. To know if something is “before its time” it has to be tested, and re-tested.’

As they were seated, she kept on at him. ‘I still don’t see how you could escape consideration of the Declaration. You could have leaned on the argument for the rights of voluntary association. The parliament is not authorised to interfere or suppress voluntary organisations – to dismantle democratic rights.’

The waiter draped the napkins over their laps, something Edith always found curious. It was an act so close to intimacy, so close to bringing attention to the most private parts of the body.

He replied, ‘Most acts of parliament, in fact, do interfere with what some might see as their existing rights. To drink on polling day, to carry a gun. Judgements about what are times of crisis. Judgements about when there is an enemy in our midst. Dangers requiring the exercise of the defence powers, the need to protect constitutional government. These, I argue, are questions that Parliament alone may properly determine.’

‘But premature, reckless, even malign claims about the seriousness of a crisis to cause panic may be used to persecute one’s legitimate opponents. Which many feel is happening now.’

‘Even the courts cannot block an elected government that has become malign. The army is then the final protector of the Constitution.’

‘And who controls the army?’

‘The Governor-General. It would be an interesting showdown between the cabinet and the Governor-General, if push came to shove.’

‘Anyhow, your instincts should have caused you to lean towards defending the higher principle – freedom of political speech. As you say, you have accepted to be President of – what is it called? – the Association for Cultural Freedom?’

They ordered. There were a number of soups. He took the bouillon; she chose the crème of asparagus. He suggested they share the beef Wellington, although the tightness of her stomach cried out for something like an omelette aux pommes de terre, and she went along with him.

She said, ‘The new legislation, if it had not been rejected by your fellow judges, would have interfered with the fundamental right of trade unions to choose their own officers.’

This was an argument she had picked up from Janice.

John ordered the wine – a Nuit St George – without reference to her or, it seemed, to what they were eating. She accepted that it was the man’s role to order the wine, but she would have liked to have been asked because of her French experience.

‘Remember the Nuit St George?’ he asked.

She shook her head.

‘We drank it at the Hôtel de la Paix in Geneva on my first night there with the Australian delegation. I thought it the finest thing I had ever drunk. You chose it. By then you were a connoisseur of all things French.’

She had forgotten. She was humbled. ‘I’m touched that you remember.’

‘About the trade-union question. I answered that. This right, however, exists only by reason of law and depends entirely upon law. As I keep saying, the bill is all about the defence powers – the authority of the parliament and its duty to defend the Constitution and the polity. The exercise of these military powers can be intelligent only when they are used to protect the country against what is regarded by parliament as a danger. These are perhaps the most important powers intrusted to the parliament.’

‘Did you say “intrusted” ’

‘I prefer the older word to “entrusted”.’

She thought that for an old Rationalist, something of a one-time bohemian, he had come to like the conservative formalities. He liked archaic terms. They were like the robes and wigs of language.

‘I like to use an archaism now and then in the court, to give such a young court some patina.’

Her mind was over-tight with alertness – too pedantic – wanting to overpower him, but also to test him. Was she still trying to convince herself that he was the superior mind and that she could return to the youthful state of being in his protectorate? That he would continue to be for her a source of wisdom? Did she want to be trounced by him again as he had so often in the past when he was her superior? Now she felt his great incisiveness and relentless logic was not overpowering her. It had fossilised into stubbornness.

He went on, ‘The continued
existence
of the political community – its safety – under the Constitution has to prevail. That takes precedence over all other matters. As Cromwell said, “being comes before wellbeing”.’

‘Where have I heard that before!’ She laughed unkindly. ‘You were once not so sure it was Cromwell. If I remember, you had me look it up, but we could never find it.’

He allowed himself a small, reluctant smile. ‘True, I have used it before. I’m pretty sure it’s Cromwell.’

‘When a person says “I’m pretty sure”, it means that they’re not.’

He took it well and said, ‘True.’

She went on, ‘You have used it for years. Shouldn’t a High Court judge be sure of the source of his authorities and quotations?’ She laughed, wanting to jab him with it, jab his certainty of manner.

‘Well, it’s appropriate to use Cromwell. He was a great believer in the supremacy of parliament. The truth of it stands regardless of who said it. And I suspect you have known me to use “
salus populi suprema est lex
” – the safety of the people is the supreme law.’

‘I have heard you use that. And I would now reply, “
Et propter vitam vivendi perdere causas
.” ’

The beef Wellington was served sliced at the table on a trolley. The vegetables were all the old friends except for the
épinards a la crème
, which was a pleasant surprise.

‘I am glad you are keeping up with your Latin,’ he said, but he was grumpy. He translated the phrase to show that he had understood. ‘And for the sake of life to give up all that makes life worth living. Are we to have a battle of legal maxims?’

‘John, I apologise for pelting back a Latin tag at you. I thought I had pretty much stopped myself doing that. Another bad habit from the days of the League and all those lawyer diplomats. Lawyers and diplomats try to close down the discussion by finding a lordly, authoritative ghost swaggering in a Latin saying. I think I read somewhere that they are used to distract the court from the facts of the case. Some Latin legalisms pretend to provide a ready-made solution to the question at hand. I think the most dangerous is “
res ipsa loquitur
” – the thing speaks for itself.’

‘Ah, we have tonight both been guilty of using the near relatives of
res ipsa loquitur –
I when I used the legal expression “notorious facts” and you when you used “self-evident truths”.’

‘Yes, you’re right. We should both plead guilty.’

She could see that this made him feel uncomfortable, as she herself had been made to feel uncomfortable when Ambrose had pulled her up for throwing around her Latin legalisms.

The tension of the dinner was hurting her in her chest. She had restrained her drinking because she didn’t want to make a fool of herself on such an important night. She wanted so much for the conversation to be a laughing, light-hearted one from the old days – even his risqué talk, even his self-centred talk – but she was determined to talk this matter through. To talk it out. ‘No, it doesn’t stand. I don’t see being and
well
being as mutually exclusive, even in cases of war, when wellbeing means the liberties we see as fundamental to our life. Crisis does not justify the giving up of all that makes life worth living. Even during the last war, the British kept publishing controversial novels, debating, putting on plays and art shows. True, the Nazis were banned in Britain during the war, but of course you do not allow the enemy to be freely active in your midst. It is only on the battlefield that debate should cease – then, the cannons do the speaking. It is not time yet for the cannons to do the speaking.’

Latham seemed to ignore her point and rumbled on, ‘In my opinion the Constitution of the Commonwealth has not been imperfectly framed. My understanding of the nature of the defence powers is that the government may act to meet a crisis without being subject to the risk of being told by a court that it is acting illegally. It might well happen that the crisis would be over, damage already done, decent life and order wrecked, people killed and injured, before the court had heard the evidence – which could easily be made very lengthy – over the question of whether there was really a crisis or not. In my opinion, the Constitution does not mean to create such perilous delays.’

‘John, we are not at war with the communists within Australia.’

‘But we are at war in Korea against communism, and in Malaya. The government is responsible to the electorate to decide when it is the time to fight or not fight. And there is planned industrial unrest organised by the communist unions. Sabotage. Subversion.’

‘Isn’t there always going to be industrial unrest, as the Liberals call it, as long as the world is divided into bosses and workers? And while bosses want to always get more for less and hold the right to fire their workers?’

Latham and she had disagreed about the role of unions at other times, although she had agreed with his bringing in the secret ballots in the unions.

He said, with a tired finality, ‘To say that the present condition of the world is one of “peace” and “war” has become an outmoded categorisation. The phrases now used are “international incidents”, “police action”, “subversion”, “cold war”. Our present government does not regard the present position as one of perfect peace and settled security, and they know more about it than the courts can possibly know.’

‘But John, the court does not live in a shuttered castle. It has to be aware of an emergency if it exists or not – your “notorious facts”. It is in the very nature of an emergency or a war that it penetrates into the awareness of everyone.
It is beyond doubt.
No such situation exists. We are not facing “a mighty and unexampled struggle in which we, as a people, as an indivisible people, are not spectators but actors”.’

‘I told the court that neither the technical existence of war nor actual fighting is a pre-condition for the exercise of the defence power. We do not have to wait for the bullets to fly. The government of Australia is entitled under the defence power to make preparations against the
risk
of war and to prepare the community for war by suppressing, in accordance with a law made by parliament, bodies believed by parliament to exist for the purpose of prejudicing the defence of the community and imperilling its safety.’ He said this again in a tone that implied that he had said the last word on the matter.

In support of Latham’s argument, she reluctantly recalled Frederick once saying that the cold war began with the Russian revolution. The revolution was always in motion. But she had always taken this as the posturing of a little brother. Maybe even Australian communists really meant it.

She felt, with some discomfort, that Latham’s position was in some ways convincing, but she still struggled to hold to the idea that the four freedoms should now always be supreme – should now be woven inextricably into our lives. Should be the guardian angel hovering over all our political and legal decisions.

Latham wiped his mouth with the large white napkin, and folded it meticulously in such a way as to announce the conclusion of the argument in his favour, as if the large white napkin was his judgement and he was handing it down.

Someone came over to say hello to him. He had probably caught the end of some of their discussion. ‘Giving your rulings in the club now, John?’ he said, and they all laughed.

Latham introduced her, mentioning their League of Nations connection. The man shook her hand and returned his attention to Latham, congratulating him on his decision. ‘You stood up to them. What did the other judges think they were doing, giving comfort to the Reds?’

‘About my decision, my dear friend, Mrs Westwood thinks otherwise.’

The interloper looked back at her with some protective condescension and said, ‘Take my advice, dear. You listen to John. John will set you right.’ He shook John’s hand, patted his back and left.

She said, ‘I should have told him that I do listen to you. And that I then make you listen to me.’

She could tell that John, despite their long friendship, was now impatient with her – even as a candid friend, even as a once admiring, attractive young friend of the opposite sex. The candid friend was no longer welcome. Perhaps power and status no longer had need of the candid friend. But it was also true that the candid friend had also to be aware of what might be driving the candour – other than a desire to be a protector and a useful counsellor. All advice should serve the needs of the person being advised, not the needs of the adviser. She could see that candour could be used punitively, callously and to undermine. To assert for assertion’s sake.