CUMMING THOM, Alan Ritchie (1928–2007)
Clerk of the Senate, 1982–88

Alan Cumming Thom’s term of service as Clerk of the Senate was relatively brief, but it coincided with momentous events in the history of the institution, and he was called on to advise senators on unprecedented issues.[1]

Alan Ritchie Cumming Thom was born in Glasgow, Scotland, on 15 February 1928, the youngest of two sons of William Cumming Thom and his wife Helen Allan, née Sorley (William seems to have been originally known as Thom, but at some stage treated Cumming as part of his surname). William was a war veteran and an old-fashioned Presbyterian minister, learned in the Biblical languages and theology, but a witty and popular preacher. The family emigrated to Australia in 1938, and William took up the position of Principal of St Andrew’s College at the University of Sydney, resigning after controversy over his strict enforcement of college rules to become a suburban minister and Moderator of the Presbyterian Church in Australia.[2]

Alan was educated at George Watson’s College in Edinburgh, Scots College in Sydney, and at the University of Sydney, graduating BA (1948) and LLB (1951). Having no desire to practise law, in 1951 he accepted a position of graduate clerk, and later as legal officer, in the Commonwealth Attorney-General’s Department, and moved to Canberra.

In 1955 Alan Cumming Thom began his career with the Senate by taking up the position of Clerk of the Records and Assistant Clerk of Committees, ‘jumping over’ another officer on the ladder of succession that prevailed in those days, and then began his progress up that ladder. He was designated as Ministerial Liaison Officer in 1956, a position designed to provide the ministry in the Senate with a dedicated source of advice on programming of government business and procedure and with procedural documents.

Cumming Thom was appointed Usher of the Black Rod and Clerk of Committees in 1964, and Principal Parliamentary Officer in 1965. When the Senate began to expand its committee work with the appointment of select committees in the 1960s, he served as secretary to some of the most significant of them, particularly those on road safety, the container method of handling cargoes and medical and hospital costs. He also served as secretary to some of the older Senate committees, including the Regulations and Ordinances Committee and the Committee of Privileges, dealing with delegated legislation and the powers and immunities of the Senate, respectively. This experience enabled him to acquire a great deal of expertise in legislative committee work. Consequently, when the Senate embarked on its modern committee system with the establishment of subject-specialised standing committees in 1970, he was appointed Clerk Assistant and designated as the principal committee officer, with the task of advising on committee matters, and overseeing the new staff of dedicated committee officers in the committee secretariat.

In 1972 Cumming Thom was awarded a Churchill Fellowship to study legislative committee systems overseas, and for that purpose spent time with the legislatures of the United Kingdom, the United States and Canada. He also examined the committees of the New Zealand Parliament. The knowledge thereby gained assisted him to guide the new Senate committees as they embarked on many courses new to the Senate and grappled with old problems reappearing after many years.[3]

Cumming Thom became Deputy Clerk of the Senate in 1980, and was appointed Clerk on 9 July 1982. His appointment coincided with a significant shift in the composition of the Senate. In mid-1981 the Fraser Government, as a result of the 1980 general election, lost the party majority in the chamber it had held since late 1975. It was a return to the situation of a non-government majority that had prevailed for much of the 1960s and 1970s, but in a time of much greater expectations of activity on the part of the Commonwealth. The party now holding the balance of power, the Australian Democrats, were determined to participate in every area of legislation, moving amendments to government bills and introducing their own. This created a greater scope for the advisory role of Senate officers. The new Clerk responded with two major innovations. An officer was designated as adviser to the non-government senators, to provide them with an equivalent range of services as provided by the Ministerial Liaison Officer to the government, but also including the drafting of amendments and bills. Both positions were incorporated as Clerks Assistant in a subsequent revised structure of the Senate Department, whereby there were four Clerks Assistant at the same level under the Clerk and Deputy Clerk, thereby moving away from the old ladder structure. The other innovation was the engagement of consultant drafters, who were retired government drafters, and who drafted more complex amendments and bills for the non-government senators. For the first time those senators achieved equality with the ministry in respect of access to legislative expertise. The provision of these services encouraged senators to extend their scrutiny of government bills and enhanced the legislative role of the Senate.

The Clerk and one of his colleagues gave evidence before a joint select committee on parliamentary privilege, which reported in 1984. The committee was established largely as a result of public criticism of members of the House of Representatives attempting to treat media defamations of themselves as ‘breaches of privilege’, but the committee conducted a wide-ranging review of the law and parliamentary practice relating to the powers and immunities of the two Houses. The Senate officers urged caution in tampering with long-established principles vital to the operations of the Houses and the Senate in particular, and this approach was reflected to some extent in the report. No action was taken on the report at that stage, but issues of parliamentary privilege were soon to assume much greater importance in the proceedings of the Senate.[4]

In 1984 the Senate appointed two successive select committees to inquire into the conduct of a Commonwealth judge, the first such inquiry ever undertaken. Their subject was the former leader of the Labor Party in the Senate, Lionel Murphy, then a Justice of the High Court. Murphy’s voice had allegedly been recorded on secret police telephone interceptions of persons of interest to the police. The Labor government fiercely resisted the inquiries, which were surrounded by intense partisan dispute. The Senate was in uncharted territory, and many unprecedented questions arose, for example, whether a High Court Justice could be summoned to give evidence before the committees. The Clerk and his colleagues were called upon to advise on procedural questions that were inextricably entangled with constitutional and legal issues. That advice was based on the premise that, as section 72 of the Constitution imposed upon the two Houses the sole responsibility of determining whether a judge should be removed from office, the Senate should be able to conduct inquiries to inform the performance of that function, and, the Senate having decided to conduct the inquires, the role of Senate officers was to assist the chamber to achieve its end. This approach was misinterpreted and misrepresented as support for the partisan pursuit of Justice Murphy, and recriminations, emerging only obliquely in public, were directed by Labor members against the Clerk and his officers. This situation was subsequently somewhat corrected by the evidence revealed by the committees, the two criminal trials of Justice Murphy, and the action of the government itself in initiating a statutory commission of inquiry into the judge’s conduct (the commission was wound up in August 1986 when it became known that Justice Murphy was terminally ill).

The Murphy affair led to further complications for the Senate and its officers. In the two trials of the judge in the Supreme Court of New South Wales, the court ruled, in somewhat contradictory judgments, that witnesses in the trials could be cross-examined on the evidence they gave to the Senate committees. This was believed by Senate officers, and ultimately by the Parliament as a whole, to be contrary to the ancient and, in Australia, constitutionally protected, immunity of parliamentary proceedings from impeachment and question before the courts. In yet another unprecedented set of events, a bill was introduced by the President of the Senate, Senator Douglas McClelland, to repudiate the court’s judgments and to reassert the long-established immunity. The opportunity was taken to include in the bill some of the recommendations of the 1984 joint select committee on parliamentary privilege, but with significant modifications. The bill passed both Houses as the Parliamentary Privileges Act 1987, the first attempt by the Parliament at least partly to codify its immunities. The Senate also passed a set of resolutions codifying its practices in related areas. The Clerk and his colleagues were deeply involved in these developments, advising senators and preparing documentation. The success of the operation owed much to the close professional relationship between President McClelland and his Clerk.[5]

A significant procedural innovation arising from the Murphy affair was the provision for committee reports to be published when presented to the President, if the Senate was not sitting. At first applied only to the second select committee report, it was eventually extended to all Senate committee reports.

Like his predecessors, Alan Cumming Thom published articles in parliamentary journals about the work of the Senate, mainly relating to its committee work, which remained his greatest interest. He also brought about the publication of the sixth edition of the authoritative manual of Senate procedure, Australian Senate Practice, as last edited by his predecessor James Rowland Odgers. Although this edition did not appear until 1991, its preparation for publication was overseen during his term.

Cumming Thom married, on 7 January 1956, Mary Eunice Coleman, a primary school teacher, and they had two sons and a daughter. Mary predeceased him. He was fond of golf, cricket and a range of other sports. In appearance he was short and somewhat rotund of stature (‘well-built’, as he often put it), and had a constantly cheerful countenance. He was capable of making a joke about the most serious of subjects, but was almost puritanical on questions of propriety, and did not fear to offend the powerful when parliamentary principles were violated.

Alan Cumming Thom retired on 15 February 1988, taking with him expressions of appreciation and best wishes by many senators. When he died suddenly at his Canberra home on 14 April 2007, there were few senators left who had served with him, but they included the President, Senator Paul Calvert, who remembered his ‘kindness and professionalism’, and other ‘old timers’ who supported that sentiment.[6]

Harry Evans

[1] This biography is drawn partly from the records of an interview of Alan Cumming Thom by Philip O’Brien on 29 June 2005, POHP; and largely from the recollection and knowledge of the author.

[2] Joan Mansfield, ‘Thom, William Cumming’, ADB, vol. 16.

[3] A. R. Cumming Thom, ‘The Australian Senate Committee System—Recent Developments’, The Table, Vol. 40, 1977, pp. 51–7.

[4] A. R. Cumming Thom, ‘Consultant draftsmen for private senators in Australia’, The Table, Vol. 52, 1984, pp. 42–6; Joint Select Committee on Parliamentary Privilege, Exposure Report, Canberra, 1984, Final Report, Canberra, 1984.

[5] J. Hocking, Lionel Murphy: A Political Biography, 2nd ed., CUP,Cambridge, UK, 2000, pp. 282–313; CPD, 28 March, 1985, pp. 769–82; Senate Select Committee on the Conduct of a Judge, Report to the Senate, Canberra, Aug. 1984; Senate Select Committee on Allegations Concerning a Judge, Report to the Senate, Canberra, Oct. 1984; Harry Evans, ‘Parliamentary Privilege: The Reasons of Mr Justice Hunt—An Analysis’, Legislative Studies, Autumn 1987, pp. 24–9.

[6] J. R. Odgers, Australian Senate Practice, 6th ed., Royal Australian Institute of Public Administration (ACT Division), Canberra, 1991; CPD, 16 Feb. 1988, pp. 51–67; 9 May 2007, pp. 53–6.