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Australian Journal of Legal History |
DAVID RITTER[∗]
He was more than just a batsman, he was something like a tide
More than just one man, he was the whole damn side…
Now the players all wear colours
The circus is in town
And I no longer can go down there
Down to that sacred ground…[1]
On Monday 13 April 1964, Owen Dixon addressed the High Court of Australia for the final time, at the end of a career of twenty-three years as a Puisne Judge and then twelve years as Chief Justice. Dixon’s leaving was a grand ceremonial occasion but he claimed not to be its architect, informing those assembled that: ‘I would have thought it satisfactory to all of you that the Chief Justice should just disappear’.[2] After leaving the High Court in 1964, Dixon resigned all offices and emphatically withdrew from public life, but he did not vanish. An anthology of Dixon’s extra-curial papers and addresses was published in 1965[3] and the volume was widely reviewed.[4] Dixon’s death in 1972 precipitated a wave of public remembrance,[5] followed much later by celebrations on the hundredth anniversary of his birth[6] and again on the twentieth anniversary of his death.[7] The High Court’s Centennial celebrations in 2003 included particular emphasis on Dixon,[8] amplified by the publication of the much anticipated first full biography.[9] This article is a survey of what has been written and said about Dixon since retirement.[10] The relevant literature is examined in political and legal-historical context to reveal how the former Chief Justice has been mythologised and to what ends the ‘myth’ of Dixon has been employed.[11]
In this article, the term ‘myth’ is used neither in a derogatory sense nor as a synonym for ‘falsehood’. Rather, the expression is applied to describe a belief structure that is clothed in the language of the actual, but distorts, condenses, disguises and exaggerates its subject. Such ‘myths’ perform a powerful ideological and socio-cultural function, acting to explain and justify positions and events while simultaneously frustrating interrogation. The recitation of a myth can confer legitimacy, removing the further need for specific description of a subject or the explanation of a proposition.[12] Modern myths of the exceptional qualities and exploits of heroic leaders are common enough[13] and although most obviously associated with military, political or artistic figures, judges too can be mythologised.[14] This article is concerned with the myth of Dixon; the ideologically marked account of the judge that has developed and which conveys certain assumptions, values and goals associated with judicial role and technique and the functioning of the law.[15]
Owen Dixon was born in Melbourne in 1886 to a modest bourgeois home marked by some domestic difficulties.[17] Dixon did well enough at school to achieve entry to the University of Melbourne where he studied classics and law with success if not great distinction, later gaining admission to the bar in 1910. Dixon married Alice Brooksbank in 1920 and they went on to have two sons and two daughters. A series of successful performances as counsel led to Dixon becoming a KC in 1922, followed by appointment to the High Court of Australia in 1929 and then Chief Justice in 1952. Unusually, Dixon twice left the High Court to perform acts of extra-judicial public service, first in a diplomatic posting to America during the Second World War and subsequently as United Nations mediator in relation to the Kashmir imbroglio. Dixon was knighted in 1941 and received a range of other accolades and prizes.[18] Dixon enjoyed success both early[19] and at length and when he died in 1972 he was, in the words of a brother High Court Judge, ‘full of years and honour’.[20]
Dixon’s resume is on the face of it extraordinary, but there are still further, if perhaps less tangible, sources of the legend. On Dixon’s sequestration, Menzies suggested that ‘those who are of a newer generation’ would ‘never quite understand the absolute dominance’ which the retiree had exercised when a practising barrister.
Even at the Bar you were not only a point of reference, but also a voice of authority. To appear with you was a liberal education; to appear against you was calculated to reduce any normal human being like me to the depths of despair.[21]
From primacy at the bar, Dixon is said to have gone on to ‘transform the atmosphere’ of the High Court from an arena in which barristers were treated with aggression and disdain by the bench to one of friendliness, where ‘the debate was dedicated to the pursuit of truth rather than to the vindication of egos’.[22] Undoubtedly, making the Court a friendlier work-place would have universally endeared the Chief Justice to the advocates who were appearing.
Dixon’s unusual absences from the Court on representative duties in Washington and the sub-continent are also sources of renown. Dixon was said to have been highly respected in America, while his efforts at mediating over Kashmir are still regarded by some as the best attempt yet at engineering a lasting peace over the province.[23] Undoubtedly, Dixon’s ‘success on the international stage’ was an additional source of admiration in an Australia in which many (including Dixon) still saw England as ‘home’ and properly recognised America as the new centre of world power.[24] The acclaim accorded to Dixon in the two most influential nations of the English speaking world showed him to be a ‘true champion’ who, by virtue of that success, brought honor to the Australian nation at large.
There are also structural reasons for Dixon’s prima facie claim to ‘greatness’: he emerged to prominence as a barrister when the Commonwealth was in its infancy and served on the bench for more than three decades, then more than half of the High Court’s life. As one reviewer wrote in 1965, ‘the Court may be said to have grown up with him’.[25] Dixon was also favoured by the times, serving as Chief Justice during what was largely a period of great national political stability.[26] As political scientist Brian Galligan has suggested in Politics of the High Court, the entrenchment of the conservative Menzies government during Dixon’s tenure at the head of the Court made for few great constitutional disputes.[27] Indeed the reputations of both the Prime Minister and the Chief Justice no doubt benefited from their mutual association and admiration; Menzies had, after all, been Dixon’s first pupil at the bar.[28] There must have been a sense in the ‘long’ nineteen-fifties that the heads of both the executive and judicial arms of government in Australia were invincible. The length of Menzies’ tenure also meant that the Court was packed with appointments approved of by Dixon, ensuring a commonality of judicial approach.[29] In 1958, Robert Menzies appointed first cousin Douglas Menzies to the bench and the latter later noted that the Court had ‘inevitably’ assumed ‘something of the quality of its Chief Justice’.[30]
Dixon has been actively and deliberately mythologised by various admirers and supporters[31] and his life and character have been described with the most abundant praise. The quality perhaps most commonly ascribed to Dixon is that of ‘greatness’.[32] Menzies called Dixon ‘the greatest legal advocate I saw either here or abroad’.[33] Arthur Dean, former Chief Justice of the Supreme Court of Victoria regarded Dixon as ‘the greatest lawyer so far produced in Australia’, probably ‘the greatest lawyer of his time’ and a ‘great man’.[34] S E K Hulme, a Melbourne barrister writing in 1997 said that Dixon’s ‘greatness’ could ‘be taken as undisputed’.[35] Other superlatives have also been applied: historian Peter Ryan wrote that the late judge was a ‘stupendous man’,[36] while Dean also said of Dixon that he was ‘the very epitome of wisdom to guide us all’.[37] Dixon was compared to Bradman[38] and to Mozart.[39] It has been suggested that the virtuous hero in The Lawyer and the Libertine, a novel written by current High Court judge Ian Callinan, is in part modelled on Dixon.[40]
Dixon’s first full biography, written by Phillip Ayres is distinctly hagiographical.[41] When launching Owen Dixon in Sydney in 2003, Jim Spigelman, Chief Justice of the Supreme Court of NSW, commented that
[Dixon] possessed the most formidable legal mind in all of our history. If there was a Nobel Prize for reasoning he was the most likely Australian to have been a recipient. Amongst the philosophers of the world, and particularly amongst the lawyers, over the first seven decades of the 20th century, his particular genius for reasoning and power and clarity of expression placed him in the first rank.[42]
Spigelman was only one of a range of reviewers and launchers who took the opportunity presented by the publication of Owen Dixon to heap praise on the subject of the biography.[43]
Robert Ferguson has written a thoughtful analysis of the figure of judge Oliver Wendell Holmes, whose memory is honored in America in a manner that bears comparison to the way in which Dixon is revered in Australia.[44] In Ferguson’s words, ‘veneration is the appropriate term’ because the language of adulation of Holmes (and Dixon) ‘transcends every usual limit’ in ‘a ceremony of faith’.[45] Indeed, the ‘difficulty with a ledger’ of Holmes (and Dixon’s) ‘virtues and accomplishments is that it does not explain the additional level of adulation that the career has inspired’.[46] The unabashed admiration heaped on Dixon is often justified by reference to qualities well beyond supremacy as a barrister or erudition and effectiveness as a judge and on occasion becomes a tendency to treat him as ‘faultless hero’.[47] Thus Dixon has been fêted for absolute honesty, complete integrity, faultless courtesy, remarkable intellectual span, as well as being ‘happily married’ and ‘a devoted family man’, when evidence suggests far more ambiguous conclusions might be appropriate in relation to each of these matters.[48] Perhaps unsurprisingly, studying the example of the great judge’s life is seen by some to be morally instructive.[49]
Importantly, the myth of Dixon is not derogated by the existence of published criticism of the Judge.[50] Commentators have expressed reservations at, for example, Dixon’s old fashioned values, including expressed xenophobia and racism.[51] There has also been at least some suggestion that the promulgation of the Dixon legend can be explained away, at least in part, as a product of the Melbourne establishment in its ongoing cultural war for supremacy with Sydney. One prominent NSW counsel, for example, is quoted as having dismissed the Dixon legend with the observation that ‘Melbourne is always true to its own’.[52] These various examples are exceptions to the general flow of the literature, but the functioning of the myth of Dixon the icon[53] is not impaired by the existence of some unbelievers and heretics. Barrister Laurence Maher, in particular, has written of both breaches of judicial propriety, and political activity as a ‘covert’ Cold War warrior, on the part of Dixon.[54] Maher and others have drawn attention to Dixon’s striking and repeated breaches of constitutional convention.[55] While such criticisms are of a deep and serious order, the myth of Dixon acts to frustrate and silence interrogation and to prevent a more nuanced reading of the former Chief Justice that seeks to explain such matters, rather than merely dismissing them as incidental to the narrative of greatness.[56] A recent passage in a short article from High Court Judge Ian Callinan nicely depicts the dynamic of the myth acting to confine and stultify consideration of Dixon’s failings.
It seems to me that Sir Owen Dixon was not devoid of some of the ordinary frailties of man and especially legal kind. His reputation as a very great judge, undoubtedly one of the greatest of the twentieth century, has placed him on a pedestal upon which no human being could comfortably always stand. It comes as something of a shock to learn that he also had failings … a narrowness born out of an abstention from indulgence in any external interests except the classics which coloured his perception of others.[57]
There is even sometimes a tendency for what seems to be evidence of Dixon’s human failings to be re-framed as yet more verification of the brilliance of the ‘great man’.[58] It appears, for example, that Dixon was not an entertaining speaker, but that rather, he read out speeches in a manner that Arthur Dean remembers as being ‘without any attempt at oratory or emphasis’.[59] Nevertheless, Dean was grateful to the late Judge for deliberately lecturing in a monotone, as any speechifying or rhetoric would have ‘distracted the audience from the difficult enough task of absorbing what he said’.[60] Another example is afforded by the recollection of Hulme that, after becoming Chief Justice, if Dixon bumped in to young barristers in Melbourne after he had completed repast at ‘one of his clubs’,[61] the junior would be offered a lift in the large automobile provided by the Commonwealth. However, once ‘the car reached the Court’, even ‘if it were raining’, the vehicle ‘was not sent on the further hundred yards or so’ to the bar chambers. In Hulme’s view the act of putting out one’s subordinate passengers into inclement Victorian weather was a display of moral fibre: the ‘car was provided by the Australian taxpayers to drive the Chief Justice of Australia, not to let him give rides to friends’ even just for a short distance, and there was ‘no such concept as that of reasonable honesty’, as far as Dixon was concerned.[62] Far more seriously, the biographer Ayres dismisses the deeply troubling revelation that Dixon advised Prime Minister Menzies about proposed amendments to legislation the subject of current litigation, by pleading that the issue ‘was a matter of national importance’ and the Chief Justice ‘believed he had a civic duty to remain informed’.[63] The myth of greatness does not admit of qualification in the hands of the most ardent of proponents.
Ferguson has noted the tendency for the cultural figure of the judge to become an idealised type and refers to legal theorist Ronald Dworkin’s invention of the hypothetical ‘Justice Hercules’, who is a ‘lawyer of superhuman skill, learning, patience, and acumen’.[64] In some of the literature Dixon is indeed idealised as an antipodean Justice Hercules; a judicial manifestation of the near-divine.[65] Robert Menzies made a joke of the perception of Dixon’s godliness in a reflection published in 1970.[66] Twenty-five years later another former High Court Chief Justice, Sir Anthony Mason, described his predecessor as, ‘in manner and appearance’, conveying a ‘sense of Olympian omniscience and detachment’.[67] Notably, Ayres’ widely admired biography depicts Dixon in a manner that is an unwitting echo of Dworkin’s half-comic ideal, attributing the subject near human perfection and portraying him after the manner of an ancient Greek hero.[68]
Above all, the myth of Dixon’s ‘greatness’ rests on his elucidation of the judicial function, referred to most frequently as ‘legalism’ or ‘strict logic and high technique’.[69] In Dixon’s address upon taking the oath of office in Sydney as Chief Justice of the High Court on 21 April 1952, he set out certain views on constitutional interpretation:
[I]t is not sufficiently recognised that the Court’s sole function is to interpret a constitutional description of power or restraint upon power and say whether a given measure falls on one side of a line consequently drawn or on the other, and that it has nothing whatever to do with the merits or demerits of the measure.
Such a function has led us all I think to believe that close adherence to legal reasoning is the only way to maintain the confidence of all parties in federal conflicts. It may be that the Court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.[70]
Some years later, Dixon revisited the role of the courts in an oration entitled ‘Concerning Judicial Method’ that he delivered upon receiving a prize from Yale. Dixon returned to the theme of legalism in exhorting what he termed (quoting Maitland) ‘the strict logic and high technique of the common law’,[71] which he explained in the following terms:
Law is confined to the realm of ideas. It is concerned with human conduct but otherwise it has no relation to objective fact …Ours is a system of law which makes the utterances of judges the best evidence of the state of the law, that is provided the utterances are delivered from the Bench … But in the end it is what the courts choose to say, the courts considered as an entire hierarchical system, that determines the substance of the law … Such courts do in fact proceed upon the assumption that the law provides a body of doctrine which governs the decision of a given case. It is taken for granted that the decision of the court will be ‘correct’ or ‘incorrect’, ‘right’ or ‘wrong’ as it conforms with ascertained legal principles and applies them according to a standard of reasoning which is not personal to the judges themselves … The court would feel that the function it performed had lost its meaning and its purpose, if there were no external standard of legal correctness … [T]he existence is assumed of a body of ascertained principles or doctrine which both counsel and judges know or ought to know and there is a constant appeal to this body of knowledge … The presupposition is that there exists a definite system of accepted knowledge or thought and that judgments and other legal writings are evidence of its content.[72]
Dixon envisioned a judicial method that would be objective in that it was based on a clear system of logic that was exterior to any individual mind. The ‘conclusion of a judge should not be subjective or personal to him but should be the consequence of his best endeavour to apply’ the ‘external standard’ of ‘positive knowledge’ of the common law.[73] Evolution of the law would still occur because it was acceptable for
a court to seek to extend the application of accepted principles to new cases or to reason from the more fundamental of settled legal principles to new conclusions or to decide that a category is not closed against unforeseen instances which in reason might be subsumed thereunder.[74]
However, Dixon warned that it was an entirely different and altogether ill-advised ‘thing for a judge, who is discontented with a result held to flow from a long-accepted legal principle, deliberately to abandon the principle in the name of justice or of social necessity or of convenience’.[75]
The myth of Dixon has been invoked in relation to numerous causes and debates as some examples will suffice to illustrate. In 1995, historian Bruce Kercher cited Dixon in support of a nationalist interpretation of Australian legal history.[76] Ayres saw Dixon’s views as providing support to a critically sceptical view of the United Nations.[77] Lawyer and Liberal Senator, George Brandis, drew on Dixon in defence of Judges’ superannuation entitlements,[78] while Labor Member of the House of Representatives, Barney Cooney, invoked the name of Dixon as moral ballast when criticising Commonwealth changes to immigration laws.[79] One author even speculated that if it had been a Chief Justice more like Dixon who had advised the Governor General on dismissing the Whitlam administration in 1975, rather than Garfield Barwick, that the response would have been less vitriolic.[80] Dixon has been summoned both for and against the current Federal Government’s so-called ‘counter-terrorism’ laws,[81] as well as to criticise the conduct of a former Governor of Tasmania.[82]
In the course of the debates associated with the Mason, Brennan and Gleeson Courts,[83] the name and legacy of Dixon has been regularly engaged to bolster arguments or positions. Predictably, critics of the so-called ‘activisim’ of the Mason and Brennan Courts have summoned Dixon to make unfavourable comparisons.[84] Dyson Heydon is one high profile critic of judicial activism, who delivered a strongly worded rebuke at a dinner hosted by Quadrant, just prior to being elevated from the NSW Court of Appeal to the High Court by the Howard administration.[85] The address contains a stirring rendition of the myth of Dixon and a loud denunciation of (un-named and un-footnoted) ‘activist judges and their defenders’ who Heydon claimed had targeted the former Chief Justice ‘either as a bogeyman or as an object of ridicule’.[86] In making the speech, Heydon became the most readily identifiable successor to the Dixonian legacy. The ideological lineage from Dixon to Heydon was even given pseudo-biological expression in one of the reviews of the Ayres biography.
One of the young men who came under the sway of Sir Owen’s strong character was Keith Aickin, appointed as Dixon’s associate in 1939. He was destined to be a judge of the High Court (1976-1982) … as Third Secretary of the Australian Legation … [Aickin also] went to Washington with Dixon in 1942 … Dixon’s Second Secretary was another young man by the name of Peter Heydon. … In March 1943 Peter Heydon’s wife Naomi gave birth in Canada to a son, John Dyson Heydon. Young Dyson was destined to be appointed to the High Court of Australia.[87]
Thus the ‘ancestry’ of Heydon can be traced back to the mythic hero, Dixon himself, symbolically confirming the legitimacy of the new appointee in epic fashion.
What is, on the face of it, much more surprising is that, while Dixon is used against the Mason and Brennan Courts, he is also utilised in their defence.[88] Speaking on ‘future directions in Australian law’, then Chief Justice Mason said:
Sir Owen Dixon’s outline of the judicial function ‘resembles an elegantly constructed mansion in which some of the windows have been deliberately left open. The message is not so much an injunction against reasoning by reference to considerations of justice and social utility as a proscription of the judge who, in defiance of the great tradition of legal continuity, turns his back on the accumulated wisdom of the past and overthrows well settled doctrine in order to reach the result which he considers just in the particular case.[89]
Almost certainly the most famous and contentious decision of the Mason Court was Mabo v Queensland (2) in which Justice Brennan wrote the lead judgment.[90]
Whether the doctrine of native title formed part of the common law of Australia was not the subject of any Court decision until the year before Dixon’s death, so it is not a matter that the former Chief Justice is likely to have considered.[91] Nevertheless the recognition of native title in Australia in Mabo (2) and the conclusion that pastoral leases did not extinguish native title in Wik v Queensland generated debates in which the name of Dixon became valuable currency. Industrialist Hugh Morgan, then Managing Director of Western Mining Corporation and one of the most trenchant critics of Mabo, expressly based an outspoken attack of the decision on the precepts of Dixon,[92] and it was a line of remonstration that recurred.[93] In contrast, writing in 1995 Justice Santow of the Supreme Court of NSW expressly situated a lengthy defence of the Mabo case within the ‘Dixonian legacy’.[94] According to Santow, the judicial restraint evident in the method of Dixon was again on show when the Mason Court decided Mabo. Others simply defended Mabo as no more than a victory for the common law.[95] How does one explain the evident malleability of the myth of Dixon?
The myth of Dixon functions by marrying the epic reputation of the ‘greatest judge in Australian history’ to certain hegemonic values associated with judicial technique and the role of law. The dynamic is one of a mutually reinforcing binary: Dixon was the greatest judge, the greatest judge must, ergo, have had the greatest technique, while correspondingly, it must have been strict adherence to legalist principles which rendered the maestro supreme. The ‘high technique’ of the ‘Bradman of the law’ is what gave him a metaphorical average of 99.94 and demonstrated the only proper way to bat: accordingly, to criticise either the man or the method would be foolish and disrespectful. Thus the myth of Dixon fuses the legend of the champion with the jurisprudential creed for which he stood, making for an enduring legal-cultural symbol linked to powerful broader values. Writing in 1987, then Chief Justice of the High Court of Australia, Sir Anthony Mason described the ‘virtues’ of legalism as ‘continuity, objectivity and absence of controversy’;
attributes calculated to induce public confidence in the administration of justice and respect for the law. Legal formalism provides a mantle of legitimacy for the non-elected judiciary in a democratic society. If the principles of law are deductible from past precedents, there is no place for the personal predilections and values of the individual judge …[96]
Unsurprisingly then, ‘legalism’ has a powerful ‘hold’ on the public imagination as well as that of the community of lawyers, perhaps epitomising the social role that the community hopes and implicitly assumes that Judges can fulfil.[97] Given Dixon’s espousal of legalism, it is not unexpected that, as current High Court Judge Michael Kirby has remarked, even ‘today, long after he has gone, the power of Dixon’s exposition and example continues to influence the ideology of what it is to be a judge in Australia’.[98]
However, while Dixon’s view of the judicial method has been the subject of much commentary, the literature reveals widely divergent understandings even among the most distinguished commentators of what ‘legalism’ actually entails. In Robert Menzies’ view, Dixon approached ‘the task of interpreting the Australian Commonwealth Constitution’ strictly, applying ‘legal concepts, and not political ones’ with ‘no partisanship’ or ‘sociological objectives to achieve’.[99] On the other hand, in Kirby’s view, ‘Sir Owen Dixon would not have denied’ that the ‘function of constitutional interpretation’ is ‘creative’ and ‘inescapably political’, at least ‘in a broad sense’.[100]
The employment of the reputation of the ‘great judge’ and the baggage of associated values on different sides of the same debates abundantly illustrates both the pliability but also the ultimate emptiness of the myth of Dixon. Broader ontological debates exist about the political nature of knowledge and the impossibility of value-free information, but such intellectual cross-currents should not too quickly be conflated with subtler shifts within the universe of judicial convention. Former Judge Hal Wootten put the matter plainly in an article about Mabo published in 1995:
Judges work within a professional tradition and environment in which they have not only studied but spent their working lives. There is a recognised authoritative literature expressing share values. … Judges work within a specified hierarchy of authority, and appellate courts are multi-member, with the constraints of group decision-making. They work in public and give detailed reasons for what they do, reasons which are subject to the scrutiny not only of interested parties and the practising profession, but also a large body of academic scholars. Precedents cannot be ignored, and if they are to be distinguished or overruled, the judges’ professional reputations will be on the line when they give their reasons. A major constraint on judicial waywardness is the knowledge that the legal system, for which the judges have a major responsibility, can work only if there is a reasonable degree of certainty, predictability and continuity. [101]
The general legal virtues with which Dixon is associated are very rarely questioned; nobody seriously advocates judges as policy makers, free from traditional constraints. Dixon may be held up as the paradigm of a ‘great judge’, but it is an example amenable to multiple and competing interpretations within the accepted parentheses of Australian legal discourse.
The most recent retiree from the High Court, Michael McHugh, suggested during his last twelve months on the bench, that the alleged return to legalism of the Gleeson Court is ‘more imagined than real’[102] and ‘more a matter of tone and style than of substance’.[103] In the same speech McHugh suggested that judges ‘cannot escape the currents of their times’[104] and that ‘consciously or unconsciously, the idea of a new Australia influenced the approach of the Mason Court to judging’.[105] Perhaps many of the invocations of Dixon by politically conservative commentators are explicable in the same way, as reactions to change in Australian society.
If the ‘idea of a new Australia’ associated connotes an open economy, increased engagement with Asia, greater individual choice, the rise of complex identity politics and declining certainty about work, community and social hierarchy, then it is a vision that is not universally embraced.[106] Among lawyers, wistful nostalgia for the vanished Australia of the Menzies era can be expressed by nostalgic reference to Dixon; an evocative personification of the ‘good old days’.[107] However, the Federal Government’s cultural and public policy programme, of course, has undergone radical alteration since the ascendancy of the Howard Government in 1996 and while a commitment to economic rationalism has survived the transition, much of the previous administration’s agenda has been jettisoned.[108] In the current climate, Dixon is invoked by legal and political conservatives to legitimise the ongoing ‘counter-reformation’.[109]
Claims to the legacy of Dixon should be treated with scepticism. Dixon was a remarkable figure whose catalogue of achievements is necessarily impressive, but the mythology functions by exaggerating the man, turning him into a paradigm; a hero of exemplary qualities, wedded to an over-arching array of legal values which enjoy broad approval. The consequence is that myth of Dixon is both malleable and empty and can be used to rhetorically legitimatise multiple and sometimes even competing positions. The debates associated with the Mason, Brennan and Gleeson Courts in particular provided a vivifying context for the employment of the Dixon mythology. More than thirty years after Dixon’s passing, the Bradman of the law remains a powerful figure with which to conjure.
[∗] BA (Hons) LLB (Hons). David Ritter is a lecturer at the Law School of the University of Western Australia and a doctoral candidate jointly in history and law at the same institution. Thanks to Hal Wootten, George Williams, Richard Bartlett, Gillian Cowlishaw, Sarah Knuckey, Richard Bosworth and Frances Flanagan for reading drafts of the article. Thanks also to Andrew Buck for ‘sort of’ commissioning the article. Any errors of course remain my own.
[1] Paul Kelly and the Coloured Girls ‘Bradman’ on Under the Sun, Mushroom Records, 1987.
[2] ‘Retirement of the Chief Justice’ (1964) 110 Commonwealth Law Reports ix.
[3] O Dixon, Jesting Pilate and Other Papers and Addresses (1965).
[4] See for example P F P Higgins, ‘Jesting Pilate and other Papers and Addresses’ [1966] UTasLawRw 7; (1996) 2(3) University of Tasmania Law Review 327-330; G A Kennedy, ‘Jesting Pilate and other Papers and Addresses (by Sir Owen Dixon)’ [1967] UWALawRw 10; (1967) 8(1) University Of Western Australia Law Review 109-114; A D G Adam, ‘Jesting Pilate and Other Papers (Sir Owen Dixon)’ [1967] MelbULawRw 8; (1967) 5(4) Melbourne University Law Review 507-510 and P D Phillips, ‘Jesting Pilate and Other Papers and Addresses (By Sir Owen Dixon)’ [1967] FedLawRw 14; (1966) 2(1) Federal Law Review 153-158.
[5] In 1973 a selection from Dixon’s judgments was published: N H Dooley (ed), Selections from the Judgements of Sir Owen Dixon by Lawyers in Victoria (1973). Curiously, as one reviewer pointed out, some of the judgments in the collection are joint judgments that seem unlikely to have been written by Dixon: J R S Forbes, ‘Selections from the Judgments of Sir Owen Dixon by Lawyers in Victoria, ed, N H Dooley’ [1972] UQLawJl 6; (1973) 8(1) University of Queensland Law Journal 92-95.
[6] N Stephen, Sir Owen Dixon A Celebration (1986).
[7] See for example P W Young, ‘Sir Owen Dixon’ (1992) 66(7) Australian Law Journal 399-401; F Kitto, ‘Some recollections of Sir Owen Dixon’ (1992) 66(7) Australian Law Journal 401-402.
[8] See for example S E K Hulme, ‘Recollections, Mainly to do with the Dixon Court’ (2003) 77 Australian Law Journal 653 and P W Young (ed), ‘High Court Centenary: Sir Owen Dixon’ (2003) 77 Australian Law Journal 682.
[9] See for example A Dean, A Multitude of Counsellors. A History of the Bar of Victoria, (1968) 220 and G Lindsay, ‘Owen Dixon a Biography’ (2003) 23 Australian Bar Review 198. An earlier effort at a biography by J D Merralls was never completed: see J D Merralls, ‘Biography of a Professional: Sir Owen Dixon’ (1996) 99 Victorian Bar News 26. See also Stephen, above n 6, 37.
[10] Not including judicial references within judgments. It would of course be possible to study the influence of Dixon on his successors by citation analysis: see W M Landes, L Lessig and M E Solimine, ‘Judicial Influence: A Citation Analysis of Federal Courts of Appeals Judges’ (1998) 27 Journal of Legal Studies 271.
[11] The ‘myth’ of Dixon is referred to in L W Maher, ‘Owen Dixon: Concerning his Political Method’ (2003) 6(2) Constitutional Law and Policy Review 33-49, n 5.
[12] See G F Flood, Political Myth: A Theoretical Introduction (1996). See also P Fitzpatrick, The Mythology of Modern Law (1992).
[13] Flood, above n 12, 220.
[14] See P B Kurland, ‘Judicial Biography: History, Myth, Literature, Fiction, Potpourri’ (1995) 70 New York University Law Review 489-501 and Robert A Ferguson, ‘Holmes and the Judicial Figure’ (1988) 55(2) University of Chicago Law Review 507-47.
[15] See Flood, above n 12, 42.
[16] In 1973 constitutional law academic Colin Howard wrote that It was ‘easy to be sidetracked into fascination with the reasons why Dixon CJ attained the dominating position which he did. Well-worn stories abound. Mostly they purport to illustrate an almost supernatural capacity for tricking anyone in any situation. They are undoubtedly aprocryphal, pallid reflection of the difficulty of outmatching a superior intellect’. See C Howard, ‘Sir Owen Dixon and the Constitution’ [1973] MelbULawRw 2; (1973) 9 Melbourne University Law Review 5, 5.
[17] The principal public source of information about Dixon is now P Ayres, Owen Dixon (2003).
[18] ‘Privy Councillor, Knight Grand Cross of St Michael and St George, Order of Merit … doctorates honoris causa from both Oxford ands Harvard … and the treasured Howland Prize from Yale’: Stephen, above n 6, 36.
[19] He appeared in his first High Court matter 24 and 42, at the time of his appointment he was the youngest High Court judge to have been appointed.
[20] D I Menzies, ‘The Right Honourable Sir Owen Dixon, OM, GCMG’ [1973] MelbULawRw 1; (1973) 9 Melbourne University Law Review 1-4, 4.
[21] ‘Retirement of the Chief Justice’ (1964) 110 CLR vi.
[22] G Fricke, Judges of the High Court (1986) 111. See also Kitto, above n 7, 401-402.
[23] See for example Ayres, above n 17, 218.
[24] Ibid ch 3 and 8.
[25] Higgins, above n 4, 327-330, 327.
[26] Young, above n 7, 399-401, 399.
[27] B Galligan, The Politics of the High Court (1987) 203.
[28] See ‘Sir Owen Dixon’ in R G Menzies, The Measure of the Years (1970).
[29] Galligan, above n 27, 202.
[30] Menzies, above n 20, 3.
[31] See for example comments reported in Lindsay, above n 9, 198 and 209. Compare the ‘beatification of Oliver Wendell Holmes’ described in ch 8 of A W Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes (2000).
[32] I have here used different examples of Dixon being referred to as ‘great’ to those cited in D Ritter, ‘Greatness as Measure? Recent Writings on the High Court of Australia’ (2004) 50(3) Australian Journal of Politics and History 434-439. Is it possible to come up with ‘objective’ indicia for ‘judicial greatness’? Michael Gerhardt has suggested that judicial greatness is ‘often in the eye of the beholder. Many of the standards adopted for determining the greatness of a judge are designed to ensure the selection of particular judges or to favor judges who reach certain substantive outcomes.’ See M J Gerhardt, ‘The Art of Judicial Biography’ (1995) 80 Cornell Law Review 1595-1645, 1625.
[33] ‘Retirement of the Chief Justice’ (1964) 110 Commonwealth Law Reports vi.
[34] Dean, above n 9, 219.
[35] S E K Hulme, ‘Tait’s case, and Sir Owen Dixon’ (1997) 101 Victorian Bar News 34-37, 34.
[36] P Ryan, ‘Sir Owen Dixon: An Intellectual Man of Passion’ [1986] MelbULawRw 14; (1986) 15(4) Melbourne University Law Review 579-581.
[37] Dean, above n 9 218.
[38] Hulme, above n 8, 654; S E K Hulme, ‘Sir Owen Dixon’ (1998) 104 Victorian Bar News 31-33, 31; P Heery, ‘A Towering Figure of the Law in this Country: Owen Dixon – Book Review’ (2003) 77(10) Australian Law Journal 682-685, 684 and G Fricke, Judges of the High Court (1986) 122.
[39] Heery, above n 38, 684.
[40] M Grattan, ‘Judging the Plot so Far’ Sydney Morning Herald, 18 June 1999.
[41] Ayres, above n 17. I have commented on this further in Ritter, above n 32, 434-439. Justice Callinan, in a comment which may reveal much of his Honour’s own views of humanist scholarship has suggested that in ‘the tradition of the best biographers, of whom Ayres is one, the facts in his biography of Dixon are neatly and comprehensively assembled, but the judgements on them are left to the reader’: I D F Callinan, ‘Comment on Phillip Ayres’s article: Dixon’s View of the Privy Council’ (2003) 24 Australian Bar Review 18-22, 18.
[42] J J Spigelmen, ‘Book Launch: Sydney – Speech by Chief Justice Spigelman’ (2003) 77(10) Australian Law Journal 686-690, 686.
[43] See Lindsay, above n 9, 198 and 209; P Ryan, ‘Judge of the Century’ The Weekend Australian, 24-5 May, 2003, R8, R9; Heery, above n 38; P W Young, ‘Melbourne Gentlemen of the Thirties: Owen- Dixon – Book Review’ (2003) 77(10) Australian Law Journal 685-686 and J Young, ‘Book Launch: Melbourne – Speech by Sir John Young’ (2003) 77 Australian Law Journal 690.
[44] Holmes has since been subjected to deconstruction in A W Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes (2000).
[45] Robert A Ferguson, ‘Holmes and the Judicial Figure’ (1988) 55(2) University of Chicago Law Review 507-47, 518.
[46] Ibid 507-47, 519.
[47] The expression in this context is taken from Kurland, above n 14, 500.
[48] Ritter, above n 4, 434-439.
[49] Hulme has suggested that it ‘is important to help keep alive an awareness of one of Australia’s greatest sons’ and that ‘we forget such men at our peril’: Hulme, above n 38, 31 and 33.
[50] G Winterton, ‘Barwick the Judge’ [1998] UNSWLawJl 37; (1998) 21(1) UNSW Law Journal 109, 110. See also Maher, above n 11, 33-49, n 5.
[51] See for example F Brennan, ‘Tales from the Bench’ (2003) Eureka Street 37-9.
[52] Forbes, above n 5, 94.
[53] Winterton, above n 50, 110.
[54] L Maher, ‘Tales of the Overt and the Covert’ (1993) 21 Federal Law Review 151, 168-75.
[55] See D Rose, ‘Sir Owen Dixon’ (2003) 6(1) Constitutional Law and Policy Review 18-24; Maher, above n 11, 33-49 and Lindsay, above n 9, 203-5.
[56] One might imagine, for example, a full length work about Dixon that seeks to assimilate the kind of matters set out in Maher, above n 11, 33-49, with Dixon’s professed commitment to legalism and that would situate the analysis in a textured study of Dixon’s life and intellectual and political milieu.
[57] Callinan, above n 41, 21. Even the extent to which Callinan is critical of Dixon here is quite unusual indeed.
[58] See also Ritter, above n 41, 435-6.
[59] Dean, above n 9, 219.
[60] Dean, above n 9. See also Lindsay, above n 9, 205-6.
[61] Hulme, above n 38, 32.
[62] Hulme, above n 38, 33. One wonders indeed what the precise terms of Dixon’s use of the car included.
[63] The issue is dealt with (along with various other worrying involvements of Dixon) in Maher, above n 50, 40, so I know I am not imagining things. Justice Callinan is ‘particularly interested in the way Dixon has so far escaped criticism for expressing an opinion on a current legal problem’: Callinan, above n 41, 21.
[64] Ferguson, above n 45, 511; R Dworkin, Taking Rights Seriously (1977) 105.
[65] In America, Oliver Wendell Holmes was mythologised as ‘The Yankee from Olympus’. See C D Bowen, Yankee from Olympus (1944).
[66] R G Menzies, ‘Sir Owen Dixon’ in R G Menzies, The Measure of the Years (1970) 239.
[67] A Mason, ‘Reflections on the High Court of Australia’ [1995] MelbULawRw 21; (1995) 20(2) Melbourne University Law Review 273-281, 275.
[68] See Ritter, above n 41, 434-439.
[69] Maher, above n 11, 33.
[70] S Woinarski (ed), Jesting Pilate and Other Papers and Addresses by Sir Owen Dixon (1965) 247.
[71] Ibid 154.
[72] Ibid 154-6.
[73] Ibid 157.
[74] Ibid 158.
[75] Ibid.
[76] B Kercher, An Unruly Child: A History of Law in Australia (1995) 168-9, 177.
[77] P Ayres, ‘Owen Dixon’s Causation Lecture: Radical Scepticism’ (2003) 77(10) Australian Law Journal 692-696, 695.
[78] G Brandis, ‘Matters of Public Interest: Superannuation: Judges’ Senate Hansard 3 March 2004, 20673.
[79] B Cooney, Speech at the second reading stage of the Migration Amendment Bill 2003, HR Hansard, 24 September 2001, 27706.
[80] J Waterford, ‘The Barwick Judgment’ (1997) 7(7) Eureka Street 24-25, 25.
[81] P Ruddock, ‘A New Framework: Counter Terrorism and the Rule of Law’ (Address to the Sydney Institute, 20 April, 2004); G Williams, ‘Hardline Laws can go too far’ The Australian, 18 April 2002 and R McClelland, 9 October 2003, 21114, HR Hansard, speech at the second reading stage of the Telecommunications Interception and Other Legislation Amendment Bill 2003: ‘I think it was Justice Dixon who said, in the Communist Party dissolution case, that the greatest intrusions on the liberty of subjects inevitably come from the executive itself’. See also M Head, ‘“Counter-Terrorism” Laws: A Threat to Political Freedom, Civil Liberties and Constitutional Rights’ (2004) Melbourne University Law Review 34.
[82] J Albrechtsen, ‘Butler’s Duty to Serve the People, not to Play Politics’ The Australian, 27 August 2003.
[83] To some extent of course, all generalisations about the Court at a given time are odious, as Justice McHugh points out in M McHugh, ‘The Constitutional Jurisprudence of the High Court: 1989-2004’ (The Inaugural Sir Anthony Mason Lecture in Constitutional Law, 26 November 2004, Sydney). Currently unpublished, but available on the High Court’s web site at: http://www.hcourt.gov.au/speeches/mchughj. Between 1987 and 2005 there was a complete turn-over in the composition of the bench.
[84] See discussion of this phenomenon M Kirby, ‘Judicial Activism? A Riposte to the Counter-Reformation’ (2004) 24(3) Australian Bar Review 219-35.
[85] J D Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 23 Australian Bar Review 110-133.
[86] Ibid 113.
[87] Lindsay, above n 9, 208.
[88] See for example Kirby, above n 83; A Mason, ‘Judicial Review: The Contribution of Sir Gerard Brennan’ in R Creyke and P Keyzer, The Brennan Legacy: Blowing the Winds of Legal Orthodoxy (2002) 38; S Gageler, ‘Sir Gerard Brennan and some themes in Judicial Review’ in R Creyke and P Keyzer, The Brennan Legacy: Blowing the Winds of Legal Orthodoxy (2002) 70 and G F K Santow, ‘Aspects of Judicial Restraint’ (1995) 13(2) Australian Bar Review 116-147.
[89] A Mason, ‘Future Directions in Australian law’ [1987] MonashULawRw 6; (1987) 13(3) Monash University Law Review 149-163, 155-6.
[90] Mabo v Queensland (No 2) (1992) 175 Commonwealth Law Reports 1; 107 Australian Law Reports 1
.
[91] Heery has rather surprisingly suggested that ‘Dixon was a strong supporter of the White Australia Policy and his comments about Australian Aborigines recorded in this book [the Ayres biography] suggest that he would not have found himself in the majority in Mabo’: Heery, above n 38. Naturally one rather hopes and suspects that none of the Judges in Mabo made their decision on the basis of whether they ‘liked Aborigines’ or not.
[92] Reported in P Chamberlin, ‘Morgan condemns PM over Mabo’, Sydney Morning Herald, 28 July 1993.
[93] See for example T Smith, 25 September 1997, 8481, HR Hansard, speech at the second reading stage of the Native Title Amendment Act 1997.
[94] Santow, above n 87, 116-147.
[95] R H Bartlett, ‘Mabo: Another Triumph for the Common Law’ [1993] SydLawRw 14; (1993) 15(2) Sydney Law Review 178; G Nettheim, ‘Judicial Revolution or Cautious Correction?’ (1993 16(1) UNSWLJ 1; M Kirby, ‘In Defence of Mabo’ in M Goot and T Rowse (eds), Make a Better Offer: The Politics of Mabo (1994) and S Churches, ‘Mabo: A Flexible Sinew of the Common Law’ (1993) 20 Brief 8. See also H Wootten, ‘Mabo and the Lawyers’ (1995) 6(1&2) The Australian Journal of Anthropology 116-133.
[96] Mason, above n 88.
[97] A C Hutchinson, Dwelling on the Threshold: Critical Essays on Modern Legal Thought, (1988) 23.
[98] Kirby, above n 83, 221.
[99] Menzies, above n 65, 236, 238 and 240.
[100] Kirby, above n 83, 225.
[101] Wootten, above n 94, 120.
[102] M McHugh, ‘The Constitutional Jurisprudence of the High Court: 1989-2004’ (The Inaugural Sir Anthony Mason Lecture in Constitutional Law, 26 November 2004, Sydney). Currently unpublished, but available on the High Court’s web site at: http://www.hcourt.gov.au/speeches/mchughj, 3.
[103] Ibid 14. Interestingly though in the same address, McHugh J was more inclined to see certain non-constitutional decisions of the Mason Court as ‘radical’.
[104] Ibid 6.
[105] Ibid.
[106] In the context of the law, the proceedings of the Sir Samuel Griffiths Society published each year under the title Upholding the Constitution are an abundant source of evidence of such disquiet.
[107] Kirby, above n 83, 219.
[108] There are of course numerous works on this subject. See for example R Manne (ed), The Howard Years (2004).
[109] Kirby, above n 83.
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