Two Chief Justices: Sir Owen Dixon's view of Sir John Latham.(Legal Notes)(Biography)

• Author: Ayres, Philip
• Position: 121136306
• Pages: 58(9)

It 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 194041 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

"the necessity of preserving a completely independent judiciary in a Federal system may be said to be absolute ... Whether it is possible or not to confer non-judicial power upon the High Court or any other Federal court created pursuant to section 71 or section 72 is by no means clear, but we are of opinion that it should not be possible to confer such power." 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.

Latham told Zelman Cowen that his success in persuading Dixon to accept the seat "was his finest achievement as Attorney-General".

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...