Australian Dictionary of Biography

Sir Clarence Waldemar Harders (1915–1997), lawyer and public servant, was born on 1 March 1915 at Murtoa, Victoria, second of four children and elder son of locally born parents Ernst Wilhelm Harders, wheat farmer, and his wife Meta Evelyne, née Mibus. Clarrie’s father died of influenza in 1926 and soon after the family relocated to Adelaide. Educated at Concordia College, conducted by the Evangelical Lutheran Synod, he then proceeded to the University of Adelaide (LLB, 1944). He was admitted as a legal practitioner of the Supreme Court of South Australia in December 1943.

The onset of World War II had interrupted Harders’s studies. Having joined the Citizen Military Forces, he was called up for full-time duty in March 1942 and transferred to the Australian Imperial Force on 7 August. Stationed mainly at the headquarters of the South Australian Lines of Communication Area, Adelaide, he rose to the rank of staff sergeant before his discharge in March 1944. That year he began working as a prosecutor in the Crown Solicitor’s Office, Adelaide, part of the Commonwealth Attorney-General’s Department. On 15 February 1947 at Malvern Methodist Church, he married Gladys Lillian Treasure, a former shop assistant who had served as a clerk in the Australian Women’s Army Service.

In 1949 Harders secured a position in the central office of the department in Canberra. By mid-1951 he had moved into the advisings section, which dealt with constitutional law and international law. He worked on Australia’s 1953 declaration of jurisdiction over its continental shelf. With (Sir) Kenneth Bailey he attended the first United Nations Conference on the Law of the Sea in Geneva (1958). Other international negotiations included the Antarctic Treaty conference in Washington (1959) and the Vienna Convention on Civil Liability for Nuclear Damage (1963). In 1955 he had also been called on to prepare the speaker’s warrant for the arrest of Frank Browne, editor of the Bankstown Observer, and Ray Fitzpatrick, its proprietor, for breach of parliamentary privilege. Steadily promoted, he was made first assistant secretary of the advisings, executive, and management services division in 1964, and departmental deputy secretary in 1965.

Five years later Harders was appointed secretary of the Commonwealth Attorney-General’s Department. Under his leadership, the department expanded to include a wide range of new policy responsibilities. A trusted independent advisor in the Westminster tradition, he served in the role for nine years, under eight attorneys-general. He had particularly close relationships with attorneys-general from opposite sides of politics, Sir Garfield Barwick and Lionel Murphy, and with Prime Minister Gough Whitlam. Harders presided over and contributed to a massive legislative and law reform program that resulted in the establishment of new courts and institutions including the Family Court of Australia, the Federal Court of Australia, the Administrative Appeals Tribunal, the Office of the Commonwealth Ombudsman, the Law Reform Commission, and the Australian Legal Aid office.

Harders provided guidance on the 1974 double dissolution and the subsequent joint sitting of the Senate and the House of Representatives. During that year he assisted Murphy to prepare for the Nuclear Tests Case against France in the International Court of Justice. Later he personally guided the legal research of his staff through archives in the United Kingdom to support the Commonwealth’s position on offshore (territorial sea) jurisdiction. In the subsequent Seas and Submerged Lands Case (1975), the High Court of Australia upheld the sovereignty of the Commonwealth over territorial seas, their subsoil, and the air above.

As departmental secretary Harders was involved at the highest level in some of the most turbulent issues of the time including the ‘loans affair’ and the Senate’s subsequent deferral of supply. In late 1974 he attended meetings with the prime minister, the attorney-general, other ministers, and officials in relation to proposed overseas borrowing from an irregular source. He successfully pressed for the inclusion of the Department of the Treasury in discussions, and was involved in the preparation of the Executive Council minute for approval of substantial borrowings ‘for temporary purposes’ to meet an ‘anticipated impending economic crisis’ (Harders 1996, 26–27). Although the scheme was abandoned, the government was accused of acting with impropriety and he was one of a small group of senior officials called before the Bar of the Senate to give evidence in July 1975. They were instructed by the government to claim privilege but, with hindsight, he believed it would have been better if they had been permitted to testify. Later he would entertain reservations about some of the loan raising’s procedures, but strongly rejected allegations that Whitlam and his ministers had conspired to deceive the governor-general.

On 11 November 1975 the governor-general, Sir John Kerr, dismissed the Whitlam government. Harders was at one moment advising Whitlam and the next giving counsel to the caretaker prime minister, Malcolm Fraser. Contacted by Whitlam the following day, he was unable to assist, being obliged to serve the new government. In retirement he made it known that while he believed the governor-general had what he described as ‘a discretion reposed in him by the Constitution’ (1996, 60)—a reserve power, to be exercised in extreme circumstances—he did not consider that power should have been employed in 1975. He also objected strongly to the way Kerr used the power, by handing the prime minister a letter without prior consultation, ignoring his duty to ‘advise and warn.’ He later described Kerr’s lack of frankness with Whitlam as inexcusable (1996, 116).

While Harders was of slight stature, with a quiet, humble demeanour, underneath lay a sharp intellect, a commitment to public service and professional ethics, and strong determination. Appointed OBE in 1969 and knighted in 1977, Sir Clarrie encouraged fellow lawyers to omit the title and address him as Clarrie. After retiring in 1979, he was engaged for a three-year term as legal adviser to the Department of Foreign Affairs. He then spent about nine years working with a leading private law firm, Freehill, Hollingdale, and Page. In this capacity he successfully acted for Murphy, then a High Court judge, who was charged with attempting to pervert the course of justice. Throughout, he was an occasional commentator on public law matters. Survived by his wife and their son and two daughters, he died on 22 February 1997 in Canberra and was cremated. A memorial service was held at the Immanuel Lutheran Church, Lyons.