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National Observer Home > No. 60 - Autumn 2004 > Legal Notes Two Chief Justices: Sir Owen Dixon's View of Sir John LathamIt is remarkable that there is no book-length biography of Sir John Latham, whose contribution to Australian politics and law was so substantial. The Latham Papers at the National Library are available to anyone who asks to see them. They cover his whole life and offer a great opportunity for a biographer. Latham was born in 1877 (nine years before Dixon). As a student at the University of Melbourne he held exhibitions and scholarships in logic, philosophy and law, and won the Supreme Court Judges' Prize, being called to the Bar in 1904. He also found time to captain the Victorian lacrosse team. From 1917 he was head of Naval Intelligence (lieutenant-commander), and was on the Australian staff at the Versailles Peace Conference. His personality was somewhat aloof and cold. Philosophically he was a rationalist. From 1922-34 he was M.H.R. for the Victorian seat of Kooyong (later held by R. G. Menzies and Andrew Peacock), and Federal Attorney-General from 1925-29 in the Nationalist Government and again in 1931-34 in the Lyons U.A.P. Government. In addition he was Deputy Prime Minister and Minister for External Affairs from 1931-34. He resigned his seat and was subsequently appointed Chief Justice of the High Court (1935-52), taking leave in 1940-41 to go off to Tokyo as Australia's first Minister to Japan. Latham was a connoisseur of Japanese culture. He fostered a Japan-Australia friendship society in the 1930s, and in 1934 he led an Australian diplomatic mission to Japan, arranging at that time for the visit to Australia of the Japanese training flotilla. Through Latham Dixon met the senior Japanese officials in the legation here, and they were still socialising with these officials two weeks before Pearl Harbor. Already in the 1920s Dixon knew Latham quite well, sitting with him on the Victorian Bar Council, for example. They differed on aspects of constitutional interpretation. Dixon's 1927 submission on behalf of the Victorian Bar Council to the Royal Commission on the Constitution of the Commonwealth foreshadows three or four of his later judgments, most importantly that in the Boilermakers' Case (1956). In his evidence to the Commission Dixon argued for a strict interpretation of the doctrine of the separation of powers, and referred to the Commonwealth Court of Conciliation and Arbitration, which had been vested with non-judicial (arbitral) as well as judicial powers. This, he stated, "might lead to difficulties . . . but no one has hitherto been courageous enough to pursue this argument". In Dixon's view
Here the decision (upheld by the Privy Council) in the Boilermakers' Case is anticipated by almost thirty years. A later letter of Dixon's clarifies his position on this question in 1926-27. Writing to Lord Simonds (Lord Chancellor, 1951-54) in 1957, he pointed out that in 1926 he had warned Latham on the matter - as federal Attorney-General Latham was the author of the amended Conciliation and Arbitration Act of 1926. "But I don't think he really understood", Dixon wrote,"and of course as it was a political matter with him his legal perception was not at its highest point." Dixon's principal concern in 1956, he told Lord Simonds, was "the length of time during which the provision had been allowed to stand" - because the power was derived from an Act Latham had introduced as Attorney-General, Latham would have fought hard to preserve it during his tenure as Chief Justice. As Dixon told Felix Frankfurter, Latham "knew that I harboured ideas about the invalidity of his measure, and often on the Bench when I thought of insisting that the matter be argued I refrained from doing so out of deference to him". On 13 January 1929 Mr Justice Higgins died at the age of seventy-seven and ten days later Dixon received a letter from Attorney-General Latham inviting him to accept a seat on the High Court.
The High Court Dixon joined was riven by conflicts of personality, and by the end of 1934, and probably much earlier, he was looking for an opportunity to resign, though it no doubt occurred to him that from the position of Chief Justice it might be easier to improve the Court's tone and harmonise some of the discord. First, though, the octogenarian Frank Gavan Duffy, who had succeeded Isaacs in early 1931 on a "Depression" Court of six rather than seven members, would have to retire and the right appointment be made. That would not be Rich, nor would it be Starke, and as for Dixon no member of the Court had ever been appointed Chief Justice over another, though that did not mean it could not happen. The next Chief Justice, however, was destined to come from outside. In 1934 John Latham resigned as Lyons's Attorney-General - or, as Sir John Higgins (who was close to members of Cabinet) told Dixon, "was dragged screaming from the perch" (alluding to Latham"s high-pitched voice) - in favour of Robert Menzies, who took Latham's Kooyong seat, moving from Victorian to federal politics. This move, in the period leading up to the 1934 elections, was probably engineered by a small group of people concerned at Latham's lack of popular appeal, and with the intention of positioning Menzies to take over from Lyons after a short time. The circumstances are obscure. Latham returned to the Bar, with tacit assurances, it was said, that Gavan Duffy's seat would soon be his. On the other hand, should the Lyons Government fall at the next elections, in 1937 or earlier, and Gavan Duffy not retire until after that, then Evatt would probably be Labor's choice for the position. These were among Dixon's and Evatt's preoccupations through the summer of 1934-35. On 19 September 1935 Dixon spoke with his close friend Sir John Higgins who occasionally saw the Prime Minister, and was told of a recent discussion in which Lyons had told Higgins that if Latham were not to be appointed the Ministry would be regarded as breaking faith, but that he personally thought Latham unsuitable and would not be sorry to see Gavan Duffy hang on. Menzies, he said, was anxious to appoint Latham. That night Dixon took the express to Sydney where all sorts of rumours about the Chief Justiceship were flying around: that Earle Page, Leader of the Country Party, was opposed to Latham, that Menzies had said no one should go from politics to the bench, even that Menzies was sick of the question and would take the position himself. Then on 10 October Dixon learned from Rich that Latham had been appointed. In Dixon's mind Latham was a usurper, and that view would colour their relationship for the future. The swearing-in was on the 17th - "Menzies saw me afterwards", Dixon noted, "& I was very curt". Latham began his new career with a cutting comment to Rich who was explaining his failure to send written congratulations. "Excuse accepted", Latham replied. "It is not an excuse", Rich protested, "it is an explanation". Starke forced a reargument in one case, threw a fit of pique in another12 - it was business as usual in the "new" Latham Court. Dixon thought politics unfitted a man for judicial office. When Robert Menzies entered the Victorian Legislative Council in 1928 Dixon told him, only half-jokingly, "Well, Menzies, it is quite easy, I am told, to convert a good lawyer into a good politician. But reconversion is impossible." On the way home for the weekend Dixon ran into Menzies on the platform at Albury - "made some trivial civil observation & did not see him again". It would be months before Dixon would once more think of Menzies as a good friend. With rumours flying in all directions Menzies might have said something without impropriety. But thirty years later, in the period immediately preceding Barwick's appointment, there would be the same silence. Dixon's integrity and seriousness of purpose, combined with his clarity of thought, led to repeated internal tensions as he perceived how frequently his expectations were let down not just by other judges but by politicians including Menzies. Menzies was an egotist in a way that Dixon was not: Menzies was concerned above all with his own advancement, and he frequently let Dixon down accordingly; Dixon's overriding concern was that people and institutions, and the courts especially, should act with propriety and rationality so as to discharge their duties honourably and correctly. In this context it is not surprising that he frequently resorted to the classics, and especially to Greek literature, as a refuge from deep disappointment provided by such actions and events. Latham proposed to hold regular conferences on important cases and Dixon makes a few references to them in the diaries. But unlike the informal and frequent conferences Dixon would later convene as Chief Justice they turned out to be irregular and were not held on many important cases. An interesting case of the mid-1930s shows Dixon's and Latham's different approaches to the question of criminal insanity, something that interested Dixon greatly. This was the appeal of Arnold Karl Sodeman, who had been convicted and sentenced to hang for the rape and murder of a girl aged 6, two aged 12 and one aged 16. Without going into this case here in any detail, it suffices to say that Dixon was highly critical of Latham's handling of the appeal. The matter was heard over three days from 30 March to 1 April, but on the first day "it seemed apparent that Latham had made up his mind on grounds of public policy to dismiss the appeal". Dixon took Latham and Evatt to lunch at Menzies Hotel, then after Court, when Evatt drove Dixon to the Glenferrie Road tram, Evatt mentioned that Latham had been referring to the "Public danger".17 By the following morning Dixon had decided provisionally that leave to appeal should be granted and told Evatt. On assembly Latham was full of the need to adjourn the Sydney sittings, originally scheduled to commence that week, in order to give the Sodeman appeal "full consideration", but then Dixon learned from Alan Brooksbank that Latham had in fact dictated his judgment before assembling. "Of course this explains his complete lack of interest in my views of the case", he noted. Latham and Starke were already concerned at Dixon's strong influence on the Court, and as Evatt increasingly joined in Dixon's judgments Latham vainly tried to rein in that influence. Dixon noted in September of that year, "On going to Lathams room for dinner he sd he had had a long talk with Starke. There is, I think, a desire in both of them to stop my writing judgments. Latham sd E[vatt] should not join in my judgments. I agreed but sd why should I refuse to let him when he asks". In fact Dixon believed at this stage that ideally every judge on the Court should write a judgment for each case on which he sat, and for twenty years (as he later told Lord Morton) he did just that.24 In certain areas of the law, however, he believed that, if possible, a Court should speak with a single voice - for example in certain criminal cases in order to avoid confusion at the trial level. His hand is evident in many of the High Court's joint judgments through the 1930s, and his influence on Evatt and McTiernan in particular (to say nothing of Rich) continued to grow, Starke complaining to Latham in several letters that in his view Evatt and McTiernan habitually "parroted" Dixon with his active encouragement:
It could hardly have been to Latham's liking that it was Dixon and not he who was now dominating the Court. Starke rubbed it in:
Of course the reason why Dixon was by now so dominant on what, without much distortion, may be termed "the first Dixon Court" was too unpalatable for Starke to mention. In the closeted world of the High Court Latham's manner was becoming increasingly familiar and he regularly dropped his guard. A "much talking judge", as Sir Zelman Cowen has observed, in private Latham "talked incessantly and mostly about himself". Dixon appears to have had little respect for his judicial abilities, commenting on his "great ignorance" in one case and on how "extremely stupid" he appeared in another, but he was more critical of Latham's personality - more so even than he was of Starke's. There were qualities of sensitivity and honour about Starke which Dixon respected, even admired. In fact Starke's sense of honour contributed to his intolerance of others' frailty and made him hard to work with. He exercised an independent judgment in most cases, preparing his own reasons in a tight and lucid style. His knowledge of the law was extensive. Latham (who had been Starke's pupil on coming to the Bar) was not his equal in any of these respects. Politics seemed to have coarsened Latham's sensibilities. His comments over the trial of Seaforth Mackenzie were an example of this. August of 1936 had seen the trial in Melbourne of Mackenzie, former Judge of Appeal at Rabaul and from 1922 Principal Registrar of the High Court, a position within the Attorney-General's department. Mackenzie had run up huge debts to the Commonwealth on plantations bought in New Guinea, and had been charged with forging and uttering seals of the High Court. He was convicted and sentenced to four and a half years' imprisonment. Latham told Dixon that as Attorney-General he had not removed Mackenzie because 'his offences consisted only of (1) living with a woman not his wife "which might happen to any one" (2) failure to pay his creditors and the usual consequences, which was common to the greater part of the service'. There is no comment in Dixon's diary - these quotations don't require comment. For Dixon there were absolute moral standards. Without them, all was corruption and chaos. Dixon was essentially a kind man, and although he must often have found other people's efforts inadequate it was not his habit to criticise or upbraid. He was very accepting of the deficiencies of those around him, but he became critical when he was presented with morally culpable behaviour - arrogance, the corruption of power or a lack of proper diligence. There is much significance in those he admired: they were inevitably persons with a strong sense of duty. Sir Leo Cussen and Sir Wilfred Fullagar were the two Australian judges he most admired, men with a profound sense of duty and high standards of personal conduct. One evening during the Perth sittings of September 1937 Latham "nearly exasperated me with much talk of the corrupt political world the sickening atmosphere of which did not appear to offend his sensibilities". Three nights later they dined with Walter Murdoch, Professor of English at the University of Western Australia. Numerous indecent stories were told by Latham and "the evening was ill spent. Murdoch was confirmed I could see in an opinion that lawyers were low brow". Latham's general attitude to things depressed Dixon, even though the atmosphere on the bench "was more pleasant for his presence" in consequence of his affability. At a dinner party at the home of the Chief Justice of New South Wales, Sir Frederick Jordan, Latham "dominated the conversation", dragging in "a reference to Roberts case, the sadist murder" in which there had been an acquittal, remarking, in the presence of women including the American wife of the Chinese Consul, "that "all the ladies were reading it"!' However, Latham "went down" well with Dudley Williams KC, Dixon noted disapprovingly. Three days later, on Rich's seventy-fifth birthday, Latham named Williams as Rich's most likely successor. Probably the worst evening Dixon ever spent in Latham's presence was on 26 November 1938, in Sydney, when he dined as one of Latham's party in the Kent Room of the Hotel Australia. Guests included New South Wales Justices Reginald Long Innes, Colin Davidson, Kenneth Street, Allan Maxwell and Milner Stephen, as well as Rich and McTiernan. From what Dixon could overhear (he was two places to the left of Latham), Latham's conversation "included much propaganda . . . to spread the view that he had reformed the Court: the great point being that we used to short circuit counsel & that he insisted on full argument: also he dissociated himself from particular decisions". It was "a disgusting evening for me", the Kent Room "very vulgar: ditto food", Latham "obviously vain & hostile: my end of the table reduced to low jokes & stories no doubt suited to our inferiority." (He enjoyed Wilbur Ham's comment that Latham was ineffable and "wore ermine in his bath".) A few days later the Chief Justice seemed to be "fighting for the husband" in a divorce case and "taking rather a low attitude over sexual relations". Standards everywhere were sliding. Dixon believed that as Chief Justice Latham downplayed the Court's function of judicial review of challenged legislation, and I will end with two examples. The Chifley Government's decision to nationalise the banks triggered the Bank Nationalisation Case (1948), the longest, costliest and most interesting case of the 1940s. The case was to begin on 9 February 1948, in Melbourne. The Government tried to strengthen its hand in advance by endeavouring to get Webb back from Tokyo and, through Evatt as Attorney-General, making diplomatic overtures to the Chief Justice. Evatt met with Latham at 5 p.m. on 9 December, a meeting about which Latham chose to remain silent. Dixon learned of it independently, probably (like Rich) through his staff. Discussing the matter with Dixon on the 11th, Rich thought it unlike Evatt to call without requesting to do so, wondering why the Chief Justice had concealed the visit (perhaps he suspected that Latham was prepared to be influenced by Evatt). Dixon replied that concealment was instinctual with Latham - it probably meant nothing. Next day he saw Latham on his return from the cricket where he had met Evatt who had said "'all was set: affdts filed'[.] L. did not mention having seen him before". If it was not clear from this that the Government was fiddling with the Court, it became so on 29 January:
Had Dixon not pressured Latham so strongly on the matter, the Government might have gone ahead and engineered Webb's early return to the Court. During the case Latham began to show his hand most unguardedly. On 23 February Frank Kitto K.C. finished his "clear and acute" argument for the Bank of Australasia, Alan Taylor K.C. for the same plaintiff followed him and finished, and Edward Hudson K.C. began his argument for the State of Victoria. Dixon noted that
Latham found himself in a minority of two, with McTiernan also supporting the legislation. In the Communist Party Case (1950) he was in a minority of one. Again he seemed predisposed to support the Government, this time the Liberal Government. Like Dixon, Latham was unimpressed by Barwick's case for the legislation, but Latham nevertheless thought the Act valid. When he read to Dixon the opening section of a judgment he had been preparing, Dixon observed, "It sickened me with its abnegation of the function of the Court & I said so". Like Fullagar, who stressed it in his judgment, Dixon believed strongly in the doctrine of judicial review - the Court's right and responsibility, under a federal constitution, to decide whether challenged Acts of the legislature were within power, a principle on which Latham was notoriously ambivalent. It is interesting that when Latham circulated his judgment Fullagar was concerned and upset by it, Kitto more concerned for Latham, "whether it meant that he had something wrong with him", while "Dudley Williams considered him mad". An important caveat should be entered here. Dixon's comments on Latham as recorded in his private diaries should be received with reservation, for it is likely that in many instances they represent exasperation at the end of a trying day. They certainly show us what Dixon thought of Latham's character, and of a number of his important judgments, but it would be wrong to take them in toto as Dixon's assessment of Latham, which would have been far more complex and more balanced. A paper in a slightly different form to this article was presented at the Samuel Griffith Society's Adelaide Conference in 2003. This article is extensively footnoted, and copies of the footnotes may be obtained from National Observer, Box 751, North Melbourne, Victoria 3051. Many of the comments of Sir Owen Dixon set out in this article are taken from his personal diaries, to which Professor Ayres has had access. National Observer No. 60 - Autumn 2004 |
