Interesting times we may be living in, but even in the face of recent Australian political upheavals, one of the biggies remains the day a sacked Prime Minister stood on the steps of Parliament House and pronounced “nothing would save the governor-general” following Sir John Kerr’s dismissal of him as from the top job.
It was November 11, 1975, and the metaphorical shots that rang out that day reverberated long and loud. One of the most astonishing developments would be dragged out over another three years in, of all places, Queanbeyan.
In the Court of Petty Sessions of the NSW border-town, which had itself barely achieved city-status, charges of conspiracy to deceive brought against ex-PM Gough Whitlam, his once Treasurer, Dr Jim Cairns, and former Attorney-General and by then, High Court Justice, Lionel Murphy, were ultimately dismissed on Friday, February 16, 1979.
The “loans affair” as it became known, sensationally saw a criminal prosecution launched by an otherwise unheralded 31-year-old Sydney solicitor, Danny Sankey – essentially equating to a private citizen taking on political privilege – only a matter of weeks after the controversial sacking. Sankey alleged that an attempt to source US $4,000 million in overseas borrowings by senior Ministers in the Whitlam Government (originally also including Minister for Minerals and Energy, Rex Connor, who died in 1977) had involved the “deception” of Governor-General Kerr on the basis it was for “temporary purposes” rather than to fund large, permanent developments.
Sankey also claimed a breach of the Commonwealth Crimes Act, specifically, a contravention of an historic financial agreement between the Commonwealth and the states. This would be taken to, and eventually deemed invalid by, the High Court in 1978.
The rest of the drama though, would continue just over the state-territory line – and both the defence lawyers and the sitting Magistrate, Mr Darcy Leo, had already advanced the question of “why Queanbeyan?”. Proximity to Canberra was the answer, and hence the streets of the town came to be lined with more legal silk, politicos, and newshounds than seen in 140 years of law and order there.
Adding comic pathos, almost from the outset, the Queanbeyan Court House of 1861 was in its death throes, being torn down to make way for a new, more “brutalist” concrete one to be erected in its place. Proceedings – and furniture – had to be moved to make-shift digs in the nearby, similarly poorly provisioned old Methodist Hall one street removed from the main. It included, by needs, a much-extended bar table, cobbled together with a number of the old ones laid end-to-end, and according to the Gang-Gang column of the day, (yep, around even then), making it “longer than those found in the average public house”. The new set-up featured an innovation not previously made use of in Queanbeyan – for the first time, proceedings were “recorded on tape”.
By this point, magistrate Leo, more accustomed to dealing with break-and-enters and perhaps the occasional case of fraud in his Queanbeyan role, may well have been concerned at the level of disruption to his court, coverage of suggestions the loan process had been “inappropriately” approved and in the face of the “disapproval” of the Department of Treasury, ongoing.
The allegation of a conspiracy inevitably generated enough counter-conspiracies to fill a season of “The X Files” (never mind almost as many appeals as days actually spent in court): some claimed the prosecution was a set-up by the NSW Liberal Party, and there was a right-wing “obsession” with the case, while the man who would become PM, Malcolm Fraser, was criticised that the timing conflicted with the impending, now necessary, election. On the outgoing government’s side, even though the initiative had been abandoned earlier in ’75, the fact that Cairns would be dismissed for a “related matter” and Connor for “misleading parliament” (further in-depth details can be found at naa.gov.au) only encouraged conjecture. Later speculation as to alleged interference by outside entities also meant disquiet was anything but quiet.
Allusions to this aspect were heightened when 13 months after being brought to court, in January 1977, Leo disqualified himself from hearing the matter. The reason cited was an associated defamation action against a newspaper however the magistrate also stated to the court “he had been advised it would be improper for him to continue to hear the case.”
In his absence, no less than the NSW Chief Stipendiary Magistrate, Murray Farquhar, would take his place on the Queanbeyan bench, albeit, briefly. There was also an attempt to move the hearing to Sydney, but this was denied. This unexpected interlude would later require the NSW Premier of the time, Neville Wran, to deny that pressure had been placed on Darcy to step aside.
Numerous appeals eventually saw Leo resume his position, the court ruling that he should be released from other duties in order to hear the case continuously – clearly, the delays and perceived shenanigans were wearing thin.
It was far from over though: throughout the year there were yet more discussions and delays, a result of calls that the Federal Government intervene to end it as a private prosecution. This too, was eventually sidelined but still the rumblings continued.
Finally, after another year-and-a-half, the leviathan it had become ground to a stop, Leo finding there was no “overt act to deceive”, and with insufficient evidence to commit the defendants, all charges were dismissed.
Had the prosecution been successful, the ramifications were more far-reaching than media coverage of the time indicated. Essentially it may have amounted to Ministers being “at peril of being prosecuted, whether at Queanbeyan, the ACT, Alice Springs, Boggabri or anywhere” if legislation was able to be shown to be unconstitutional.
Sankey though would claim no regret and that his actions were neither spurious or vexatious, nor did he have links to any other party, political or otherwise: “I am in it on my own.”
According to his own defence team, who would be required to represent him in the matter of costs, the solicitor had “undertaken the prosecution from the highest motive” and his actions had ensured “the Australian people were now aware of the facts.”
It was Whitlam who stood on those different set of steps on that February day and his Queanbeyan pronouncement was as quotable as his Canberra one more than three years earlier:
“The comedy is over. The whole proceedings have been a farce, and a protracted one.”
And yet still the saga wasn’t done, pushing on for yet another year. Left was the question of who had to pay. While Cabinet had agreed the Commonwealth would cover the costs of the defendants (some $300k – equivalent to more than $1.2mill in 2018 terms) – and unusual in itself given it was normally the job of the Attorney-General to approve such things – Sankey was personally liable for a total of $75,497.66. He refused to pay, pledging to go to prison for 12 months on the basis of the inequality of the taxpayer footing the bill for the politicians while his request for remediation was declined.
In another bizarre twist, on December 2, 1980, an anonymous woman arrived at the court with a cheque for $75,000, while an unnamed doctor made a $10 contribution. Sankey declared no knowledge of his benefactors, but with the remaining $487 – not forgetting the 66 cents – still owing, and he sticking to his guns, the prospect of almost a month in jail was the outcome.
Following that inglorious conclusion, Sankey continued to practice in Sydney, moving to Queensland in 2006 but returning to the NSW capital eight years later. Then, three years after that, it all came tumbling from the shadows once again. After more than 30 years, confidential files from a Hawke Government-instigated 1986 inquiry were released and Sankey would publicly confirm that organised crime boss, Abe Saffron, otherwise known as “Mr Sin”, had twice attempted to coerce him into dropping the charges. Among the revealed allegations, no. 11 suggested Sankey was targeted in order to be “improperly and unlawfully intimidated into withdrawing these private prosecutions”, while another barrister purported to have been told “Sankey was a dead man”. A threat was also said to have been made against Sankey’s own Counsel, David Rofe QC.
Abe Saffron at one of his Sydney nightclubs in the 1950s. Image: The Australian
By Sankey’s admission, he stood his ground, declaring the only way he would consider ending the legal action would be an admission by the parties against he had levelled charges as to their wrong-doing. Even after the case was dismissed, costs awarded and the entire bizarre scenario relegated to Australian Politics 101 classes, Sankey would hold fast that his motivations were always a matter of principle and that his purpose had been to clarify “community confusion and uncertainty” surrounding the affair.
Today though, more than 40 years later, it seems most still scratch their heads as to just how – and why – a country was thrown into this political turmoil, a government could be brought down in this manner, and a small-time solicitor could generate such unrest for so long.
https://trove.nla.gov.au/newspaper/article/110850265?searchTerm=%27sankey%20whitlam%27&searchLimits=
https://trove.nla.gov.au/newspaper/article/110865643?searchTerm=%27sankey%20whitlam%27&searchLimits
https://trove.nla.gov.au/newspaper/article/110808465?searchTerm=%27sankey%20whitlam%27&searchLimits=
http://guides.naa.gov.au/gough-whitlam/chapter7/7.10.aspx
https://en.wikipedia.org/wiki/Sankey_v_Whitlam
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1978/43.html
The Other Side 