RESTRAINT AND RADICALISM: SIR JOHN LATHAM'S CONSTITUTIONAL EXCEPTIONALISM.

• Date: 01 August 2021
• Author: Graham, Patrick

CONTENTS I Introduction II 'Artificial and Self-Created Obstacles': Latham and Constitutional Amendment III 'Passionless Machines': Interpretive Choice and Constitutionalising Forces IV The Latham Court and Constitutional Doctrine A Economic Freedoms B Constitutional Implications and Federalism C Emergency Power V Political Constitutionalism VI Conclusion I INTRODUCTION

This article explores the unity of Sir John Latham's constitutional doctrine. Latham was appointed the fifth Chief Justice of the High Court of Australia in October 1935 and remained on the Bench until April 1952. (1) He held an unrivalled position from which to develop constitutional doctrine during a 16-year chief justiceship that coincided with Australia's participation in total war, its post-war reconstruction, and then-nascent political institutions taking root under the Constitution. His arrival at the Court followed a varied and distinguished career, first at the Victorian Bar and, from 1922 until 1934, in federal conservative politics. (2) Latham spent most of 1941 away from the Court as Australia's first Minister to Japan in a luckless return to diplomacy after his European postings immediately after the First World War. (3) But my focus here is on Latham's interpretive method in constitutional argument. It is in his approach to the development of constitutional doctrine that Latham made the most significant contribution of his judicial career. (4)

Wartime exigency and post-war reconstruction during the course of the Latham Court were used to expand the scope of the Commonwealth's authority, which, in turn, fundamentally altered Australia's federal compact. (5) The legislative power established by the Constitution was exercised broadly and, in turn, interpreted broadly by the High Court. This was a transformative period for Australian constitutional doctrine.

As a judge, Latham applied a distinctive mode of highly literal constitutional reasoning. He construed textual meaning as it stood in 1900, when the Constitution was enacted, and was determined to show that the task could be shorn of political considerations. (6) Latham often went to extreme lengths to disavow the possibility of judicial choice in constitutional litigation. His method was 'interpretivist' in the sense that it confined the resolution of constitutional disputes to the use of rules and principles unambiguously set out in the text of the Constitution. (7) But by the late 1940s, some of the Court's puisne members began to subtly question the ostensibly formalist logic of the formative joint opinion in the 1920 case Amalgamated Society of Engineers v The Adelaide Steamship Co Ltd ('Engineers' Case'). (8) Justice Dixon, in particular, reasserted tenets of pre-Engineers' Case orthodoxy in respect of intergovernmental immunities. (9) He did so by soberly expanding the range of implications drawn from constitutional principle in the interpretive process, which, in turn, could act as restraints on legislative power. (10) Chief Justice Latham, however, stood apart in rejecting those innovations: (11) instead, his constitutional doctrine evolved along an exceptionalist path.

Two countervailing forces shaped the development of Latham's constitutional doctrine. The first is the unbending focus on the constitutional text which Latham adopted: the product of his highly distinct view on what constituted arbitrary power. Judicial discretion very rarely arose in interpretive disputes, Latham argued, given the permanence of ascertainable, fixed legal meaning within the constitutional order. (12) The second force was Latham's zeal for dynamic reform of the Constitution. Reflected also in his many years in the top reaches of federal politics, and later during his retirement, Latham argued that the instrument had to swiftly adapt to Australia's evolving national condition. (13) But such was the strength of Latham's fidelity to textualism that he would routinely emphasise that amendment could not be legitimately effected by antiformalist methods of judicial review. (14) It could come only through the legal order's ultimate '[rule] of change': (15) the Constitution's s 128 amendment process.

Here, then, lies a central paradox in the development of Latham's constitutional doctrine. His ultra-conservative reading of the text opened up the space for profound doctrinal change, even as he simultaneously claimed that this interpretive method foreclosed the possibility of judge-led 'informal' revision of the Constitution: that is, change outside of the s 128 amendment process. (16) Constitutional renewal was not so much hindered from realisation by Latham's strict interpretivism; it was in many respects significantly advanced by those same conservative forces. But this should not be read as an interpretive method--an intense cultural 'legalism'--that cloaked the advancement of political ends behind abstract reasoning. (17) Few checks on the use of government's legislative authority could be legitimately identified in the constitutional text properly construed, Latham CJ argued. (18)

In what follows, I set out to uncover what a conceptual explanation for Latham's exceptional approach to constitutional doctrine might look like. (19) How was it that Latham's constitutional reasoning supported radical growth in the central power and a transformative adjustment of the federal balance? What were the animating features of his view on the constitutional restraints properly placed on government power? And, more broadly, what were the values that drove Latham's view of the Constitution and its interpretation?

These questions have yet to be addressed in academic scholarship. Latham's legacy in constitutional law (or any area of law, for that matter) continues to evade detailed scrutiny. Two studies from 1987 and 2002 deal with, respectively, the often dysfunctional workings of the early Latham Court (20) and, relatedly, how marked personality differences affected the institution's 'voting patterns'. (21) But since Zelman Cowen's quasi-obituary of Latham in 1965, which also set out the broad sweep of his constitutional doctrine, (22) the only focused work on Latham is Fiona Wheeler's 2011 study of Latham's remarkable extrajudicial advisory work. (23)

As important as those insights are, there remains a lot more to be said about the exceptional constitutional doctrine of this outstanding figure in Australian public life. How could it be, for example, that in his penultimate constitutional case (decided exactly 70 years ago), Latham CJ found himself alone as the sole dissentient in one of the High Court's most celebrated decisions, Australian Communist Party v Commonwealth ('Communist Party Case')? (24)

Part of the reason for this glaring absence of discussion may lie within a broader trend of a dearth of works on Australian judicial biography. The relative scarcity of scholarship in this field is not only long recognised, but also commonly ascribed to a culture of Australian legalism that is unreceptive to scrutiny of a judge's values and personal hinterland. (25) More recent analysis reveals not only the enduring hold of legalism--broadly speaking, on judges rather than academic lawyers--as a barrier to Australian judicial biography. Tanya Josev points to local structural factors, including a lack of cross-disciplinary focus in academia, in addition to practical difficulties in obtaining relevant archival papers. (26) It is also beyond question that the Latham Court's intellectual leadership was provided by Sir Owen Dixon. Latham's legacy has, then, been overshadowed by his fellow Victorian. (27)

While this article is not a study in judicial biography, or intellectual history, I want to uncover Latham's complete conception of constitutional authority. This is located not only in his judgments, but also in Latham's extensive extrajudicial remarks on the nature of Australian constitutional power: those made as statesman, as judge, and in retirement. These works--which primarily take the form of speeches, private letters, and academic articles--remain unexamined as a collective, and yet their recovery and analysis are essential to any proper understanding of the distinctive constitutional jurisprudence which Latham crafted. As James Thomson noted, '[m]ilieu does matter' when it comes to understanding the judicial role, and we ought to 'glean from available fragments of a judicial life the larger themes and premises which often provide unstated but controlling and pervading postulates'. (28) It is in those extrajudicial sources, and not--for the most part--his judgments, that Latham's views on constitutional amendment, interpretive method in constitutional review, and the relevance of the legal source of the Constitution are articulated and elaborated. It is in these 'fragments' that Latham explained with remarkable consistency his grand vision of the Constitution.

On the High Court Bench, however, beyond repeated incantations on the ultimacy of political, as opposed to legal, modes of restraint on Australian public power, Latham demurred from setting out a rationale for his interpretive method, much less his broader constitutional vision and restiveness for innovation in that area. The exceptional constitutional doctrine that Latham crafted, then, can only be fully understood by reference to extrajudicial material. While the how of Latham's constitutional review is set out in his judgments, the why is only fully revealed through those sources. And it is only from that vantage that we can fully appreciate the distinct way in which Latham held that government power was primarily 'constitutionalised'--that is, its arbitrary exercise averted, and evolution directed--by the judgement of the Australian people as expressed in periodic elections.

I explore these themes in the following stages. I begin, in Part II, with an outline of the constitutional reform that Latham argued for throughout his life...