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Posted on 15 September 2015 by Jeremy Gans

Malcolm Turnbull joins a select group: lawyers who have argued before Australias national court and then gone on
to lead the nation. In 1988, the future Prime Minister capped his greatest success in his career as a barrister by
successfully defending his lower court victories in the Spycatcher case in the High Court. The case famously
concerned the UK governments attempts to block the publication of a book by a former MI5 agent, Peter Wright.
Having succeeded at trial in arguing that the books supposedly confidential contents was mostly already public
overseas, Turnbull secured a majority ruling in the NSW Court of Appeal (consisting of two future High Court
judges, Kirby P and McHugh JA) and then a unanimous victory in the High Court, which ruled that Australian
courts applying the law of confidentiality ought not protect the security interests of an overseas government.
Turnbull also succeeded as a junior barrister in an earlier case before the national court, when he defended Noel
Chrichton-Browne in the Court of Disputed Returns.
A previous Prime Minister with a much more impressive record before the High Court is Robert Menzies,
Australias longest serving leader. Menzies, as a young barrister, famously led the argument in the
landmark Engineers case, which overturned constitutional doctrines from the first two decades of the federation,
paving the way for decisions in favour of the powers of the federal government. The case affirmed Menzies career
as a leading barrister and he went on to argue many more cases before the High Court, before entering politics and
serving as Prime Minister twice. Back in 2011, Norman Abjorensen drew some prophetic parallels between Menzies
and Turnbull, albeit understandably neglecting the High Court link.
Menzies greatest opponent, Herb Evatt, who not only argued before the High Court but also became a High Court
judge, narrowly missed out on becoming Prime Minister in 1960. However, the next Labor Prime Minister, Gough
Whitlam, is another who argued before the High Court in a handful of cases in the 1950s. The most significant
is Grannall v Marrickville Margarine, where the Court distinguished between the narrower operation of s92 of the
Constitution (providing the trade, commerce and intercourse amongst the states shall be absolutely free) and the
federal parliaments wider power over interstate trade and commerce (which extends to production of goods in some
circumstances.) Whitlam was a junior to future High Court Chief Justice Garfield Barwick, representing the losing
margarine company. He was more successful in a solo appearance for the tenant in a lease dispute that reached the
Court.
Putting aside the different case of Edmund Barton (who both led Australias first government and sat on its first
national court bench), I am not aware of any other Prime Minister who has appeared before the High Court. There
have, of course, been Prime Ministers with law degrees (including Tony Abbott), some who practiced as lawyers
first (including, most recently, Julia Gillard) and even some who wrote on constitutional law or were litigants in the
Court (Whitlam, again, on both counts.) But I imagine that, if I have missed another Prime Minister who has
actually argued before the High Court, the comments will soon set me straight.
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http://www.abc.net.au/pm/content/2009/s2729136.htm

Spycatcher trial prompted much needed

intelligence reforms
Mark Colvin reported this story on Friday, October 30, 2009 18:22:00
Listen to MP3 of this story ( minutes)

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MARK COLVIN: There's been high praise for Malcolm Turnbull today, from a most unlikely quarter.

The official historian of the British Security Service, MI5, says Turnbull's "brilliant" handling of the
defence case in the Spycatcher trial was the catalyst for much needed intelligence reforms.

In 1986 Mr Turnbull was the counsel for Peter Wright, a former MI5 officer.

The British Government was trying to prevent the publication of Mr Wright's book, Spycatcher. The book
alleged that the former head of MI5 Sir Roger Hollis had been a KGB agent.

That gave the story an extra Australian dimension because Sir Roger Hollis was one of the people
instrumental in setting up the Australian intelligence service ASIO in the '50s.

Now the intelligence historian professor Christopher Andrew who was given access to 400,000 MI5 files
in the course of several years' work on his official history of the service says he's proved conclusively that
Sir Roger was not a double agent and that Peter Wright was misguided at best.

He spoke to me from London.

CHRISTOPHER ANDREW: Sir Roger Hollis was not merely not a Soviet agent, he was one of the
people who would least likely to have been a Soviet agent in the whole of MI5.

What had simply happened is that Peter Wright, after a fairly competent early career became embittered.
He became a conspiracy theorist. He got it into his head that Hollis was guilty.

And as my book shows he actually went to the extent of manufacturing evidence against him. He no
doubt felt that it was in the right cause.

But if you look at the records and he could have looked at the records but he either did and paid no
attention to them or didn't look at them - it's actually Hollis during the Second World War who is a Cold
War warrior before there is a Cold War. And what he's doing cannot be interpreted as cover.

He is the man who more than anybody else is, in the MI5 leadership is arguing, look, we mustn't stop
keeping track of what the Russians are up to. We mustn't stop keeping track of the names and other
details of members of the British Communist Party.

So he's completely innocent. But Peter Wright, Peter Wright was a tremendous fraud. Whatever evidence
he got hold of, once he became obsessed by the belief that Sir Roger Hollis was working for the KGB he
would just twist it to his own purposes.

As it all ends up; it's one of those cases it seems to me in which you know, nobody comes out of it, at
least in Britain, with credit.

Her Majesty's government has never made a bigger fool of itself in Australia than dealing with the
Spycatcher trial in 1987. No, I think retired British intelligence officer has ever produced such a
preposterous account of British intelligence history as Peter Wright. It was an extraordinary farce.

MARK COLVIN: There was a man in the American intelligence system called James Jesus Angleton
who became so obsessed with the idea of bluff, double bluff, triple bluff and so forth that he got lost in,
the phrase was "a wilderness of mirrors". Was Wright like that?

CHRISTOPHER ANDREW: Oh absolutely. One of the worst things that can happen to any intelligence
service is to have a conspiracy theorist. The damage that they can do is simply enormous because of
course it's extremely disruptive of what is going on within that service.

It's also extremely disruptive of relations with intelligence allies. So you know particular humiliation for
Harold Macmillan at the very time when he's attempting to form a special relationship, which
surprisingly he did, with the young and dynamic president of the United States John F. Kennedy.

He has to tell Kennedy that Hollis' deputy who fell under suspicion before Hollis, Graham Mitchell, is
being investigated on suspicion of being a Soviet agent.

Now there are not many greater humiliations I think than can happen to a British prime minister in
intelligence relationships with other powers than that.

MARK COLVIN: And back on the Spycatcher trial. As you know the man who defended Peter Wright's
right to publish is now the Leader of the Opposition in Australia. Was Malcolm Turnbull right to do what
he did?

CHRISTOPHER ANDREW: Well Malcolm Turnbull was representing his client and he did an absolutely
brilliant job, which included the public humiliation of Sir Robert Armstrong, the British cabinet
secretary.

In fact Sir Robert Armstrong is an extremely able individual but you remember he was given an
absolutely impossible brief. And Malcolm Turnbull tore it apart at the age of, what was he at the time,
29? Anyway, very young...

MARK COLVIN: Thirty-two I think.

CHRISTOPHER ANDREW: With extraordinary forensic skill. I mean anybody who paid attention to the
trial as I did at the time, it was perfectly clear that Turnbull had an exceptional career ahead of him in
some way.

I remember questions went a bit like this. I mean one of the absurdities at the time was that even though
everybody knew that Britain had a foreign intelligence service, SIS, you weren't, government officials
were not allowed to admit it.

Australian government officials were of course allowed to admit that ASIS was around. So Turnbull put
this point to poor Sir Robert Armstrong and Robert Armstrong refused to acknowledge that SIS existed.

He then went on to, Turnbull then went on to point out to Sir Robert Armstrong that he'd already
admitted that Sir Dick White had been head of SIS, the British SIS for over a decade, at which point Sir
Robert Armstrong was forced to reply, "Oh well, I can't admit that SIS existed before Dick White became
its head and I can't admit it existed after Dick White became its head."
 So you know I don't think that British senior officialdom has ever suffered or is ever likely to suffer such
humiliation as it suffered at the hands of Malcolm Turnbull in the New South Wales Supreme Court.

MARK COLVIN: What lessons did it learn?

CHRISTOPHER ANDREW: What lessons it learnt is that it couldn't possibly go on like that.

One of the things that we tend to forget nowadays is that MI5, of which of course Peter Wright had been
a rogue member, didn't even have a clear statutory basis. So in 1989 the Security Service Act is passed
and ever since then MI5 has been governed by statute.

Then secondly, I mean even though it's been a long and winding path I think that there was a gradual
realisation that the only alternative to having nonsense history of the kind that Peter Wright was peddling
was to allow for the publication of reasonably reliable history.

So in 1997 exactly a decade after the Spycatcher trial MI5 started releasing its earliest records and
nowadays it has something like an informal 50-year rule for most of its records.

And then of course five, six years later it decided on the publication of an authorised history getting in an
outside historian - that's me - giving me virtually unrestricted access to its archives.

Not of course giving me the right to publish all of them but I did have access to virtually all of them and
celebrating its hundredth birthday with a history of its first hundred years.

I, even though I have a very, very low opinion of Peter Wright to be honest, he did me a favour. In other
words if it hadn't been for his nonsense history of MI5 I might not have got the opportunity to write what
I hope is a reasonably reliable history of MI5.

MARK COLVIN: Professor Christopher Andrew of Cambridge University, whose book is The Defence
of the Realm: The Authorised History of MI5.

And for those with an interest in espionage and the Australian history of the 1950s there will be a 20-
minute version of that interview on our website tonight focussing on the defection of Vladimir and
Evdokia Petrov as well as the Spycatcher trial.
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