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We The Jury:The Trial Of Gough Whitlam Part 5

(based on David Atwell’s “Australian War Of Independence” timeline)

By Chris Oakley

******

Summary: In the previous four chapters of this series we recalled the arrest and trial of Australian prime minister Gough Whitlam on charges of treason; the ensuing political crisis that shattered the Australian Labor Party; Whitlam’s conviction for treason; and the effects of the ALP’s downfall on the 1977 and 1980 Australian national elections. In this segment we’ll look back at the 1983 elections which swept Malcolm Frasier’s government out of power and the reopening of the Cairns and Hayden cases shortly thereafter.

For many of Malcolm Fraser’s old adversaries the 1983 Australian national elections represented an opportunity to get him out of office for good; whatever popular support he might have enjoyed at the time of the Parliament House standoff or after the 1977 and 1980 elections was steadily eroding to almost nothing, and if the right man could be found to stand against him for prime minister it would mean the chance to start a new era in Australian politics. Some on the Australian left thought Bob Hawke might be that man. A sizable number of people on the Australian right seemed to agree with that assessment, because as soon as it became clear Hawke intended to run for prime minister he became the target of an all-out media assault by Australia’s top conservative strategists in an effort to end his campaign before it had even gotten started.

Hawke was perhaps the most optimistic man in the ALP in the post- Gough Whitlam era. At a time when it was still taken for granted in some party circles that an ALP man could never again hold the prime minister’s office, he not only dared to believe the ALP could regain the Lodge but thought Frasier’s political vulnerability represented the perfect opportunity to enhance the ALP’s resurgence as a national political force.

Hawke faced a certain bit of skepticism regarding his campaign for the prime minister’s office, much of it coming from younger voters who felt Hawke might be out of touch with the political realities of the ‘80s. Undaunted by the skeptics, Hawke threw himself into the campaign with an energy even his staunchest admirers found incredible. Knowing that successful utilization of the media would make or break his quest for the Lodge, he recruited one of Sydney’s best advertising agencies to handle all of his campaign spots.

Before long Hawke began closing the gap between him and Frasier; by late February of 1983, with only ten days to go until election day, he was virtually neck-and-neck with the incumbent prime minister. One of the advantages he had going for him in the election was that he was for the most part untouched by the Parliament House crisis; at the time of Whitlam’s arrest and trial, Hawke had been president of the Australian Council of Trade Unions and thus had no significant ties to either the pro-Whitlam or anti-Whitlam factions of the ALP. About the only thing anyone in the press could agree on concerning the race between Hawke and Frasier was that Hawke represented the most serious political challenge the incumbent prime minister had been faced with since the Parliament House standoff.

The climax of the great drama was played out on March 5th, 1983 as millions of Australian voters went to the polls to decide whether Frasier should stay or go. By an overwhelming majority they chose to turn Frasier out of office and elect Hawke as Australia’s new prime minister. In an ironic turn of fate, Malcolm Frasier was being cast into the same political wilderness to which he’d exiled Gough Whitlam eight years earlier-- the only major difference being that nobody was likely to send Frasier to prison.

When the final vote count was announced, a raucous cheer went up at Hawke’s campaign headquarters. The ALP leader’s optimism about his party’s future had been vindicated. When he stepped out before the TV cameras to give his victory speech, the new prime minister was utterly beaming...and so, for that matter, were millions of ALP faithful. This was a moment they’d remember for the rest of their lives. Their party was finally returning to the Lodge.

******

Both Hawke’s staunchest supporters and his most bitter critics had predicted during the ’83 election that he would try to get Bill Hayden and Jim Cairns released from prison, and sure enough before the end of his first week in office Hawke directed the federal courts to launch a judicial review of the verdicts in Cairns and Hayden’s 1978 trials. To some observers outside Australia it might have sounded surprising, but it wasn’t-- indeed, many Australians considered it a decision that was long overdue. Political dissent has long been viewed by Australians as a sacred right, and at the time Hawke became prime minister there were a growing number of his fellow countrymen who viewed Cairns and Hayden not as traitors but as defenders of civil liberty unjustly crucified by the Frasier government for no other reason than their decision not to abandon Gough Whitlam in his hour of need. Even some people utterly convinced Whitlam had been guilty of treason were beginning to concede there might have been some prosecutorial overreach in charging Hayden and Cairns with sedition.

One of the voices speaking out in favor of a judicial review came from a surprising quarter: Malcolm Frasier. Though not yet fully ready to admit he had used excessive force in his approach to resolving the Parliament House crisis, he did say in a candid interview with The Age that he had of late started to find it very difficult to reconcile his lifelong dedication to civil liberties with his hard-line approach to ending the Parliament House standoff. He even confessed to having some misgivings about the conduct of one of the federal prosecutors who’d been involved with the Cairns and Hayden trials. Such misgivings would turn out to be justified: just two weeks into the judicial review the lead investigator for the review panel learned a critical prosecution witness in the Cairns trial had committed perjury in his testimony for the court, and shortly after that a member of the prosecution team for Hayden’s trial confessed to having concealed evidence which might have exonerated Hayden of treason charges had it been presented to the jury hearing Hayden’s case.

These revelations not only cast serious doubt on the legitimacy of the verdicts in the Cairns and Hayden trials, it also helped to revive old conspiracy theories which alleged Frasier had orchestrated-- or at the very least permitted --judicial fraud in order to win his personal feud with Gough Whitlam during Whitlam’s own trial. If popular opinion had been loud before that Cairns and Hayden should be freed, it would be utterly deafening before the judicial review was over; some people had even begun suggesting that maybe it was Malcolm Frasier, not Gough Whitlam, who should have been put on trial for treason in 1976.

Once the perjury and suppressed evidence came to light, it was only a matter of time before the rest of the federal government’s case against Hayden and Cairns fell apart. On June 12th, 1983 the judicial review panel presented its findings to the federal attorney general’s office, and the panel’s conclusion confirmed what many Australians had suspected: that Cairns and Hayden’s civil rights had been repeatedly and seriously violated during their trials. The next day the federal courts overturned the guilty verdicts against the two men and ordered their immediate release from prison. They were greeted by a huge crowd of cheering supporters when they passed through the prison gate, and a well-known Melbourne newspaper published a photo of their release with the caption “It’s About Time”.

Having won their own freedom from prison, Cairns and Hayden now turned their energies towards the struggle to posthumously exonerate their former boss, Gough Whitlam. Even as the judicial review of the Cairns and Hayden trials was being completed, evidence had started to surface that some of the same questionable tactics employed against the defendants in those cases might well have also been used against Whitlam...and although Whitlam’s own actions both during and after the Parliament House crisis hadn’t done much to dispel the suggestion that he had committed treason, even those still absolutely convinced of his guilt now conceded something was amiss in the prosecution’s conduct at the Whitlam trial.

By the spring of 1984 polls were showing that at least two-thirds of all adult Australians favored initiating a judicial review of Gough Whitlam’s 1976 treason conviction. Where there was smoke, reasoned the advocates of such a review, there was fire-- or the very least, one or two glowing embers. If underhanded tactics by the prosecution had been a factor in the convictions of Cairns and Hayden, who could say it was impossible for prosecutorial misconduct to have played an equal if not greater role in condemning Whitlam to life behind bars?

To be continued

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