Hands, Tatum --- "Owen Dixon by Philip Ayres" [2003] AltLawJl 80; (2003) 28(5) Alternative Law Journal 259

• Reviews
• Owen Dixon

Reviews

Owen Dixon

By Philip Ayres; The Miegunyah Press, Melbourne, 2003; 400pp;

$49.95 hardback.

In last year's Oxford Companion to the High Court, Philip Ayres rather enticingly revealed that Australia's J:!lOSt celebrated Chief Justice, Sir Owen Dixon, had meticulously recorded his thoughts, conversations and correspondence in personal diaries over a period of 30 years during his High Court tenure. The snippets revealed in the short entry in that volume had me immediately hooked so it was with great interest that I awaited the promised publication of Dixon's biography.

Given that the High Court has now been in existence for a century it may come as some surprise that very few biographies of its members have ever been published. Those that have been published generally focus on the pre-judicial (and in some cases post-judicial) political careers of their subjects - Lionel Murphy, Edmund Barton and Herbert Evatt to name a few. Even more surprising, in view of his formidable reputation throughout the common law world, is that there has never before been a published biography of Dixon. With the wealth of publicly available material on Dixon's professional life, including his extra-judicial work as Minister Plenipotentiary to the United States during WWII, one wonders how such an over­ sight could be excused; but without the access that Ayres secured to Dixon's private papers and diaries, such an undertaking would only have given us part of the story.

Indeed, it is something of an accident that Dixon's diaries ever came to light. During his lifetime, Dixon had twice denied a request from the National Library in Canberra that he bequeath his personal papers to that institution upon his death. Dixon, it appears, was an intensely private man and his diaries record his dismay that personal correspondence between him­ self and former Chief Justice Sir John Latham was made publicly accessible by the National Library following Latham's death in 1964. The over­ whelming feeling one gets from reading Dixon's biography is that he rarely publicly expressed his true opinions of others and in light of the candour with which Dixon expresses these thoughts in his personal diaries, his concern that these diaries might ever become public was explicable. Nonetheless, as Ayres points out Dixon had plenty of opportunity to destroy his diaries and correspondence, yet he preserved them.

Taking advantage of these papers, various public and private archives and the recollections of Dixon's surviving associates, friends and family (including his only surviving daughter), Ayres has compiled a credible account of Dixon's life, both personal and professional. Like many great men, Dixon came from humble beginnings. Law was in his blood (his father was a barrister, his uncle a solicitor) but Dixon took to the law out of necessity rather than interest. Dixon reserved his passion for the classics, and had there not been the need to provide for his family following his father's decline in health, he might well have pursued that passion at Oxford (9). Interestingly, Dixon is said to have never read another law report following his retirement in 1964, concentrating instead on reading and translating Greek and Latin classics (9).

The inevitability of Dixon's rise to high judicial office appears to have been well accepted by the legal fraternity of the day. Yet although Dixon's diaries reveal that he himself accepted this fact, he was a most reluctant judge. Dixon's first judicial experience was as an Acting Justice on the Supreme Court of Victoria in 1926. Apparently Dixon felt it was incumbent upon him to volunteer for this position despite a drop in salary of almost three quarters of his earnings at the bar (48). He was later to tell one of his associates that he under­ took the acting judgeship to 'find out whether he would enjoy judicial work without the irrevocable commitment' (48). The fact that he did not at all enjoy the experience and having made up his mind that he 'would never be a judge' begs the question why, only three years later, he accepted appointment to the High Court (50). Certainly many were relieved that he did - Latham, who was Attorney-General at the time, boasted that his success in persuading Dixon to take the appointment 'was his finest achievement' in that office (54).

In 1929 at the age of42 Dixon joined a divided High Court where the hostility between the justices was barely contained. Perhaps because Dixon rarely let his personal opinions of others be known, he was well-liked by his colleagues and quickly became 'the Court's fulcrum, the only justice to whom all the others consistently talked' (57). His diaries, however, reveal his true feelings for his colleagues -particularly former politicians McTiernan ('lazy and unqualified') and Evatt ('political and dishonest') over whose appointments to the Court in 1930 he threatened to resign (59-60). True to his legalist stance (later to be fully revealed), Dixon thought the realm of politics should be kept separate and distinct from the law. He therefore frowned upon those making the transition from political to judicial office. When his former pupil at the bar, Robert Menzies entered state politics in 1928, Dixon said to him '...it is quite easy, I am told, to convert a good lawyer into a good politician. But reconversion is impossible' (53). Even those whom he appears to have admired at the bar, such as Latham who resigned as Attorney­ General to be appointed Chief Justice in 1935, were lambasted in his diaries as being morally corrupted by politics (89).

But Dixon himself cannot claim that he spent his judicial life completely free of political considerations or influence. Although he turned down an appointment as a Royal Commissioner in 1935 on the basis that it would involve him in political questions, he accepted two fundamentally political posts during his time in judicial office-Australian Minister to the United States for two years during WWII and United Nations Mediator to Kashmir in 1950. His diaries also recount his conversations and correspondence with key political figures and although there is no evidence to suggest that he gave advisory opinions, he was not above giving the odd hint of likely conclusions in certain cases (the Kisch case being a notable example) (63).

In 1952 Dixon succeeded Latham as Chief Justice and there began what has been termed the 'Golden Age' of Australian law (231). Lord Denning is quoted as saying that the High Court under Dixon had 'established a reputation which overtopped even that of the House of Lords' (231). Denning was not alone in this observation, many of his contemporaries in England and America thought Dixon to be 'the best common-law judge in the world' (232). That a Court barely 50 years old could rise so meteorically in the world's estimation is perhaps the highest tribute one can pay to Dixon. For it seems that the Court's position was in no small part due to his immense appetite for hard work, his leadership skills and his coherent and persuasive judgment writing.

In his 35 years of judicial office on the High Court Dixon made an indelible mark on Australian law. He will perhaps best be remembered for his comment on being sworn-in as Chief Justice that 'there is no other safe guide to judicial decisions in great conflicts ^{than a strict and complete legalism'.} This put a name to the method of interpretation that Dixon had openly practised in the Court during much of his tenure as Justice. Unlike literalism, legalism allowed judges to look beyond the plain meaning of the text and reference secondary material in support of judicial reasoning. It also permitted judges to draw implications from the text of statutes and the Constitution. However, legalism was conceived in the context of common law declaratory theory (which held that judges only located and applied the law and had no role in its creation) and for this reason legalism has been much maligned in the past 20 years for furthering a legal fiction. Dixon is said to have regretted using the phrase 'strict and complete legalism' which he predicted would be 'misunderstood' (233). He told his associate that when he spoke these words he had in mind the criticism of the Court that had followed its decision in the Communist Party case the previous year (233). Yet in light of the work of commentators such as Brian Galligan (who essentially argues that legalism was a rhetorical means of 'disguising the political aspect of constitutional adjudication^[1])' such explanation provides fodder for legalism's critics rather than support for its tenets. Nonetheless, the Gleeson Court's recent return to the principles of Dixonian legalism demonstrates that it may indeed be the safest interpretative tactic to employ in the face of public criticism.

Although Ayres' treatment of Dixon is often reverential (a common pitfall of biographers) the work is a solid and interesting read. It seamlessly discusses both Dixon's personal and professional life and puts all of this into its broader political and historical context. Ayres is not a legal scholar, yet the discussion of Dixon's constitutional judgments is excellent (he was assisted in this regard by Sir Daryl Dawson, Sir Harry Gibbs and Colin Howard QC to name a few). But more than anything else Owen Dixon is worth reading for the anecdotes that reveal the inner workings of the High Court of Australia during a politically interesting period and for the eloquent insights of this extraordinary man.

TATUM HANDS

Tatum Hands is a PhD candidate in political science at the University of Western Australia.

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^[1] B Galligan, 'Realistic Realism and the High Court's Political Role' [1988] FedLawRw 3; (1989) 18 Federal Law Review 40, 43.