The 2017 Winterton Lecture. Sir Owen Dixon Today

• Author: The Hon. William Gummow AC
• Position: Professor of Law at University of Sydney and Australian National University; Non-Permanent Judge, Hong Kong Court of Final Appeal
• Pages: 30-56

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THE 2017 WINTERTON LECTURE

SIR OWEN DIXON TODAY

THE HON. WILLIAM GUMMOW AC*

I INTRODUCTION

In chapter 9 of his book The Constitution and the New Deal, published in 2000,

Professor G. Edward White has traced the “canonisation” and “demonization”

of Supreme Court Justices with particular reference on the one side to Justices

Holmes and Brandeis and on the other side to Justices Van Devanter, McReynolds,

Sutherland and Butler (“the Four Housemen of Reaction”). The author

convincingly demonstrates the difculty, after quiet reection upon their judicial

work, in attaching to judges conclusory labels such as “liberal”, “progressive”,

“reactionary”; the processes of adjudication are simply too complex to be

characterised in such a fashion.

In his address to the American Bar Association, delivered in 1942, Sir Owen

Dixon regretted both the tendency to place more value upon the conclusion in

judgments than upon the premises, and “the fashion to examine modes of judicial

reasoning on the tacit assumption that anything may explain a judge’s conclusion,

except his legal training.”1

Writing the preface to the second edition of his Legislative, Executive and

Judicial Powers in Australia, which appeared in 1956 during the Chief Justiceship

of Sir Owen Dixon and shortly after the landmark, and at the time highly

controversial, decision of “the Warren Court” in Brown v Board of Education,2

Dr Wynes observed:

In the United States the Supreme Court has come to be regarded as a co-

ordinate branch of the Government in an altogether different sense from

that in which the High Court stands in relation to the other branches of

government in Australia. Such a development was not to be expected in

Australia and it is not surprising that it has not occurred. The decisions of

the High Court are accepted in this country as a part of the natural order

and do not excite anything like the comment that important decisions

* Professor of Law at University of Sydney and Australian National University; Non-

Permanent Judge, Hong Kong Court of Final Appeal

1 Dixon, ‘Two Constitutions Compared’ in Woinarski (ed), Jesting Pilate (1965) 100, 103;

(1942) 16 Australian Law Journal 192, 194. Dixon had ‘spent much time’ in preparation

of this address: Owen Dixon, Diary, 21 August 1942, Personal Papers. Dixon served as

Australian Minister to Washington 1942–1944.

2 347 US 483 (1954).

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receive in America. … The tradition of legalism has served to place the

Court outside politics and this process has been assisted by the fact that

it is not only a “constitutional” Court, but also a general court of appeal

for the whole country and, indeed, spends the greater part of its time in

ordinary litigation not concerned with the Constitution or with Federal

law at all.

The point made by Wynes 60 years ago about the respective standing of the

two courts to a remarkable degree holds true today. One need only contrast the

acceptance of the recent decisions of the High Court respecting the electoral

process3 and the scope of the marriage power4 with the proposals during the 2016

Presidential Campaign that there be set in train an amendment to the Constitution

to reverse the Citizens United5 decision of the Supreme Court, and on the other

that Justices to be appointed to over-rule Roe v Wade.6

The use by Wynes of the term “legalism” in a laudatory sense will be noted. But,

wisely, he uses it to assist the important point he makes respecting the work of

the High Court as a general court of (now nal) appeal for the whole country. In

what follows in this paper, consideration of the present standing of the work of

Sir Owen Dixon does not divorce his thinking and technique in constitutional

cases from the remainder of his extensive oeuvre.

What of the “canonization” and “demonizing” of particular Justices of the

Supreme Court to which Professor White referred with respect to the New Deal?

This has not abated. For example, the work of Justice Scalia has attracted strident

attention by vigorous adherents to both sides of the “originalism” debate in the

United States.

We largely have been spared the ascension of the “hero judge”. Perhaps

paradoxically, it is the reputation of Sir Owen Dixon, aided by his biographer,7

which has come nearest to so such an Antipodean apotheosis. More than 50 years

have elapsed since Sir Owen Dixon retired after serving as a member of the High

Court from 1929 to 1964. The reports of his judgments appear between volumes

41 and 114 of the Commonwealth Law Reports.8 His reputation has waxed and

3 Roach v Electoral Commissioner (2007) 233 CLR 162; [2007] HCA 43; Rowe v Electoral

Commissioner (2010) 243 CLR 1; [2010] HCA 46; Day v Australian Electoral Ofcer for

South Australia (2016) 90 ALJR 639, [2016] HCA 20; Murphy v Electoral Commissioner

(2016) 90 ALJR 1027; [2016] HCA 36.

4 The Commonwealth v The Australian Capital Territory (2013) 250 CLR 441; [2013] HCA

55.

5 Citizens United v Federal Election Commission 558 US 310 (2010).

6 410 US 113 (1973).

7 Ayres, Owen Dixon (Miegunyah Press, 2003). The general approach by the author to

this subject and his assessment of Dixon’s judicial work was trenchantly criticised by

Mr Dennis Rose AM, QC, in the detailed book review published in (2003) 6 Constitutional

Law and Policy Review 18.

8 Volume 180, published in 1994, contains three decisions in which Dixon participated in

1940, 1948, and 1956 respectively.