JUDICIAL BIOGRAPHY-A PKELIhlISXKY OBSTACLE A pers~taszon o certainty zs a mn~zzfest ti.ctzmo?zy o f f foollsl'znets, atzd o frtrente utlcertaznty.-~~OXI.\IGNE. f h notable feature of legal writing in Australia has been the lack of biographical studies of judgcs who have been meml~ersof the High Court of Australia. This is surprising when the important creative function of the High Court in the interpletation of the -Australian Constitution is taken into account. l'he cmly two extensive biographies to have been published are of Sir Edmund Barton and Henry:Bournes Higgins. Both of these works do not even pretend a serious evaluation of the judges' work on the High Court bench. John:ReynoldsJ stndcof Sir Edmund Barton is more concerned with his work in New South Wales politics and in the movement for Federation tiiall with his legal career.' This is not surprising as Keynolds is not a lawyer hut a historian. The "4Iemoir" of Henry Bournes Higgins, written by one of his nieces, Xettie Palmer, is an affectionat? literary remrmbrance rather than a biographical study." Sir Samuel Griffith has been the subject of a series of lectures3 and an unpublished thesis4 but both works are unsatisfactory. The first is a series of disjointed ileadings like "Griffiti~as a Friend to the Working Alan", "Griffith as a Conversationalist", "His Loyalty to the Crown", etc., and the latter is a 300 page calendar of most of the things Griff~thdid and said in his life. These to my knowledge are the onl~7studics 1.i.t attempte.3 of the judges of our High Court. There has not been one serious attempt by a lawyer to evaluate the contribution of any of the judge.; to Australian constitutional law apart from the mortuary estimate5 that appear when one of them dies. Obituaries are hardly the place for critical estimates. In a recent article which surveyed the literature of Australian Go\w-nment and Politics, S. R. Davis and C. 31. Hughes drew attention to this gap in Australian legal scholarship. "One gap which we would record, but not hazard an explanation for, is the complete absence of the judicial biographies which h:,ve popularized 1 . Ednzia~idUavton, J o h n Iieynolds (1948). 3. H r n g , H O U P Y I ~ Sz g g i ~ i s :i ~tfemoz?,, H . Nettie Palmer (1931). 3. Szu Saw:ztrl Grrj'j~tl~, 1938 3lacrossan 1,ecture in tlic 1.ni~-er,it)- Cjuernsof land, A. L). (;rahanl. 4. .51r . S ' ~ ~ ~ ~ U P ~ (;v:j/ith, J . C . \.ockler, unpul)lisheti tliesis prezented TZ-rclkcu to the Gniversity o f Queensland for B.:'i. (Hons.) Degree. .\tnerican jtlrisl)r~~tl(.~~c.c ~ ~ ; i ~ . t i c ~ ~ lcoil-tit [ttiorlal 1;irr.."" and ar-l.\. Tliis article i i written in an tsnctc,;~\.ol~r discu\.cr \\.llat rea-otl-, to i f an., tllc.rct arc, \vlric.lr might c3sl)lain tllc al)icnce of this kind of I-c~sc~arcl~. Soinc. of theses rcaions are obvious enough. I3cforc tll' \.c.ry recent csrrlcrgence of latv tcaching as an independent profession tilt. rllost l i l i c ~ land I)csst qualified people to undertake such stutlirs ~ \vc1rc p r : ~ t i s i n gla\v!.c~-s. I4owcver, the amount of time required in sc~arcliingtl~roughpritnary material and the academic dctachment necessnr!. for evaluation were not availal)le to tlicm. tl~iotller reason \vas tlrc, srnall amoilnt of post-graduatil researcl~tllat was pursued ill Australian 1-aw 5~11001s. One might 1lax.e especti.tl !,uch stutlies t o bc nnclc-rtaken I)!. students for thc higlicr degrees 1)ut any studelit who 11;1(1 tlit. d~%sirtx the a1,ility for this kind of \vorl< left Xustriilirt and to go to 13nglarld or, Inore reccntlj,, to the Cnitcd States. I n suc.11 difftwnt onvironrncnt~, far a\va!- fro111 tlic, .ili>tralian sourci. matc.rial, it was not surprising that critical .tudit,s of ;\II-tralian jut1gt.s \vci.c not srlcctcd as thesis tol)ic>. 'l'llc>i<,certainly must lia\.c 1)ec.n retarding factor-s, but u \ (.I lait f(l\v yeat-. nl~lcliof t11c.ir forcr hah been .I)cnt. Aln1o.t all of tllc. A ~ ~ s t r a l i aIn~ i w Sclloc~l.~ 11ow ha\-e a rcssonabl!- i i ~ c dfull time. ;ic;~tlemicitafi \vho might I)c c.spectcd to earr!. out t11i>t \ . j ~ c of r-c,sc~;irc.li work. I.ike\viic t i ~ ~ >Iia.; been i111 inc~-t.a>c, tlit. re in nurnl)cxr of btt!tlr.nt. nnd(~rtaIiinp pobt-gratlliatc \\-or1; at horn(, rat11c.i tlran o\.cracas. tllct H o ~ v c v c ~ , tlo not tiiinl; this \rill ; ~ u t o n l a t i c ; ~ I1ile;111 that I l~~ it~cl-c:ascdattention will 11t. [)aid to judicial I1iograpl:y i ~ .luhtr:~lia i in the ncst fc\v !.ears. I3cforcl that call h a p l ~ c n tnucli riiore fund;^a mental o1)jcction to judicial l)iograpll!. 1n115t be csposed and answered. I%iographicalwriting in general sincc tllc. turn of the century lias been greatlj. influenced 1)y tlie techniqu& and assumptio~ls c,ml)odied in the n.ork of ~,!-tt(in Stsaclicj.. I n hi.; sketches c ~ f eminent \.ictosians, S t r a c l i q hroke s11arl)ly with an older tradition of l~iograpliythat \vas full of fatuou- eulogy and hadl!- d i g b t c d Iiistory. He d(1monstratcd successfully that it is not ncacessar!. to Iw tc.tlious and dr!. in order to be scholai-ly and autlioritative. Hi; s1)c~cialt;ilr~lt.; wcrc a lucid and urbal;e style, a 1)rcvith- whicli c s c l ~ ~ t l cc,\.c.r!.tl~ing that was redundant Ilut nothing that u-;~s d significa~rt, :\nd ;I rcalisnj that- produced insight tlirongli a nice coinl~inationof factual ;Lccurac!. and icorloclasm. .Al)o\.e all, tic. insisttd that i)(,rson;~lit~., r-atlier tlinu achievcmcnt, must I,cy tllc. l)rin~ar-!.. iT'hc .Iustral~an J o ~ ~ r n : t01 I'oliticx anti H i > t ( , ~ - > - . i \.(]I I \ . , So. I , 107 (195s). concern of biogrnpll!., ,inti lit. wa.; ;c m:titt,r in rtalating tllc cylisodc or alii,cts of charactc.r. 1;ib ~;II.~~cII~:LI- ,ul)jtxct.,' li\.c~-: v l ~ i c l ~ I mo-t vividly i.t~:c~alt~tl In tlit~Icgal l~roft,*-ionitwlf in . \ u ~ t r ; ~ l i ;tIit>l-t> c m s t o 1 ~ ,I r c . \t-idixI?, hrld o1)inion t h a t juc1gc.i .lro~~ltl ! i t , tllc. ~ l l l , j c c tof suc~ll not ~ t i - ' I n tliel c,r-c' of :I itidgc it i t arglic,il t11;it ~>c\fioir;~lit\. aiicl profcsiional ;~chie\.cmc.~it I~a\.ca n ij:timiitt> ~-c~cil)i-oc;ll re-l;~tionillil). . l ~ i o g r a p h y\vliich did not dcal n , i t i ~tc,chriic.:t! Icgitl tL\:illi;ction I \vnliid 1)e u ~ c l e . .ind \vllt%~i ornl)llaii. o n ~ ~ c ~ ~ - , o n ai lii tc,ot~i~lr,cl y ~ v i t l ia ~)i!.cholo:;ieal intrrl'r[.t:ition c ~ fj u t l ~ n l t ~ i ~ t -the, f:t~llion of in t!lv .-\meric;ln rc;rli~-atc.tl i.'; n ~ l ' l - ~ eidea> 5i.t.In t o p i n g from t\vo I):~bicconccyitioni O I ,L ~c jl~dgcx'.; function t h a t arci -till ciuitt. cilrrt.nt a r ~ d\vhich I~ctn.cac.~t thc.m corl,tit~lte in tllr prc5rnt o ~ ~ i l ~ tllc,n grt,:tt~y.;t irnl)ctli~lic,n~ io to tltr cltvelopmc.nt of an .Au\tr;ili;~!l jrldicial hioqrirphy. two conceptions concc>!-n tllci jntigt'. r t ~ l a t i o n s h iO I I~ t11c. ~ onrs 11:ind t o t h c jutlicial procw, ;;;iil on thr. ot11t.i- t o the, r o r n r n ~ ~ ~ l i t \ \vliicli hr. ,er\.c,;. -. lilt. I t i. fir.t of :!iI contcndtd t l i ; ~ tt.hc1 jutlgc'.; r o l ( ~ the, judic,i;~l in ~ i r o c ~i,+ a vei-y 1irnitt.cl onrS. . i l l 1ic liai to do i:i ortler t o d t ~ i t l t , I>c3fortal i r l l . L I I ~ l 3 di5puto i. t o iintl t h c law irpl>licn!~!e,t o tlicb I i t I l c is not iilfllic~nctd 1,~- !iolitic;~l l~ ~ n juclgc. a n d tllc community mould l z c~ndanger-edif tiic .;crc.c.n \vliic-li ol:scurr~.; t 1 1 ~ judgr,'i, ~ , o r k from t h e ~ l i ~ h l ic!.~, K<.i c. lia1 tetl. I t c I\-auld 11p5c.tt h a t air of mysticisn~, nliich ~ v c 11;~vcn hig!l :t~itl~cirit!., o bhould .;iir~-ound h e nd1nini5tr;'tion of t h e 1;~\vin it5 hightr ~ - c ~ a r l l c ~ ~ . ' t 'Thta pul,lic's rc-ipect for a n d confidence in tlii~jtitiiciar-\ tlt-lictnd> (i. This 7 form o f x~riting,o r rather tht, threat o f ~ t has led many jutl,trc.,.- to , tlestroy their i~ersonalpapers Ilefort. tlie!- hale (lied. I n thex I - n ~ t e c l States Justices T\.ayne, M~ller, 1-~irton,I'eckharn, \Vliite, Zlclicnn;~. Jackson and C'arduzo all cle>tro!ed their paperi. \ l a n ~ ~ s c r ~ p tlslon, (I!\ 1,il)rary o f C'ongre.si,I . i ~ r c ~ t i ~ ~ F'cvsciiictl P ( ~ p1,s ( , / , J u , ~ ~ I c I l' ic~. S L L J I ? C I ! I ~ > I/ , i i oj l Cozdvt, 1051i. Il!oclie(l at the ~ncli~crretzt- c \ v l a t i o n , In i o r i ; c I ~ I I I ~ I I . ~ I I . I i.lrigraphie,, and left I ~ e l i i n t lhim a nir~n~,r;:n~Ilim . rccl~ic'>tiilg . . tllat all hi.; rnan~iicrlpt\,I ~ o o k h ;inti accoclnti ~ I i i ~ u l iIlc (lc,tr~~ye:l i t l l o ~ ~ t l \\ liein:: rent1 1,r ~ s a m i n e t lt ~ y an!-tine I,~it111, \ r r f t , " . fCfl~\arcl1;. >111rri~, Gi,ovgt, ff ~ g i i ~ / ~ ~l8!J>), ( ~ ? ~ z ( ~t/~ Sir O\verl I ) I X ( I ~ ,tlie ~ ~ ~ ~ ~ 1 1 1 1 1 ~ 1 5cpt1~1~il1t~r I!).-I!), 13, L . 1 .fgo, 1 t 23rcI I? 60 The U ~ z i v e r s i t yof Queenslagad Law Journal u1)on the complete removal of n judge from the influences that affect lesser men. It can readily be appreciated that in a profession which mo\-es in this sort of intellectual climate the work of the judicial biographer is almost subversivt,. The magnification of the individual will damage the administration of the law at the two points we have svcn. Firstly, it will encourage the view that the law is not certain and that a judge has a creative choice in deciding many disputes. Secondly, it will take from the judiciary the air of aloofness and mystery which is essential if the confidence of the public is to be maintained. I t will be hertl contended that both of these views are unsound and should not be regarded as an obstacle to judicial biography. What follows is directed primarily at the role played by the justices of the High Court of Australia, but the general reasoning would also apply to State Supreme Court judges. Their contrib~~tion, ;tlthough it is not as spectacular or momentous as that of tlic High Court judges, is none the less real. \Yl~cnthe various Australian Colonies came together at the end of the nineteenth century to create a system of federal g o ~ ~ c r n m c n t in Australia the!. defined the terms of their merger in thc Commonwealth of Australia Constitution Act. That enactment of the Iml~erialParliarncant set up a central government and allocated to it certain enumerated legislative powers. A few of these powers were given exclu.;ively to tlic Commonwealth (e.g., defence, custonls and excise), but for the rcst t1ic.y were to be exercised concurrently with the States. However, when Con~monwealth and State legislation came into conflict on thesc subject matters the Commonrvealtli law was to prevail.8 The undefined residue of legislative power, after some particular powers liad been withdrawn from both or vither g o v e r n m c n t ~ , ~ reserved to the Statcs.10 was The responsibility for policing and maintaining the federal 1)alancr so creatcd was given to the High Court of Australia. I t was envi.;aged by the framers of the Constitution that the High Court would fulfill the same function in this regard that the S u ~ x e m eCourt of tht. United States liad done in the American federation. That ( ' o u a , \ , c ~ j ea1-ly in its histor!., had asser-tcd its . right to iiivalidatc both Federal and State acts if they infringed the Constitution.ll This mechanism for adjustin{: the conflicts 8. Constitution s. 101). !I. r.g., Constitution ss. 90, !E, l li. 1 1 0 . Constitution s. 10s. 11. AIarbltt?' I:. ~ \ l a d ~ s [1803] USSC 16; (1803) 1 Cranch 137; 1;lrtchev i , . Peck (1810) ti o~ Cranch 87. between thc I'ecicrdl and btatts Govc,rnn~ent? found to I)? esicntial to eninre thr continued rxhtence of thc. federd skbten~. Anv I)od\ could, in theory, bc vested with the power, I ~ u tw1tt.n governmental powel> are found clistrlhuted hy L legal documt,nt In a community whcrc idea\ of public law dcli\e from thc comnlnn lau, it I \ natuial that sucll confllcti sliould become legal i..uc\ to be re.olved by a judicial rather than a political t~ibunal. I n .iustralia the dclegatei to the F e d e ~ a lConventions uele ver\ conscloui that they wele buildlng the High Court into the governmental itructurr of thc Common\+ealth. They re<~lized that ti ta.1; wai tlie c~catlveone of interpreting the Constltution to Inect the cliang~ngnredi of society rather than the s t a t ~ cone of mechanically a p p l j ~ n ga document whoie meaning u a i for ever hxed and all embiaclve. Sir Isaac Isaacs, for example, remarked 111 tlic courie of a debate a t the Federal Convrntlon in Melbourne In 18% "\Vc .ric t a k ~ n g n h n i t e ~ trouble to exprc5i what we meall lil thi- Conktitution, Ijut ~5 ln Amri lea . o it wlll be here, that tlie ~ m kI.r of t l ~ c( on~tltutronnot merclv the Con\ entions who . , ~ t 'ind the States nlio ratihed their cor~clu~ions, the Judgei of but the \up;t.n~e ( o u i , RIarshail, Jab, < t o ~ e y , dnd all the re\t of the ~tmown~d Judge, \\ho have pronouriced on the ( onstltution, ha1.e ildd ]u\t a\ mucli to do in ihaping it a i the rncn u l ~ o in the \,it orlgl,i,~lCorivc lltiorls".12 T11is type of comment points u p tlie fcict that in tile layt Iciort the dut! of applying the broad fraine\vorl< of governrnent embodicd in the Constitution to the varying changes in Auztralia'i econornlr and social llfe was envliaged to I-)c the t a ~ k the High of court. Conditions in a society change and the same words in the Constltution have to he applied to meet new and unanticipated circumitancei. For example, the Conititution allocated to the Commonwedlthlegi~ldtive power over "postal, telegraphic, telephoillc and other like hervicei" a t a time when wirelesz and television were not invented. Qurition5 soon aroie a i to which government ~ agolng to have control over these media of communication, and i in the ca5e of wireless the High Court in R. v . Brzslan13 was called upon to decide tile question. I t held that the power went to the Commonwealth under the words "and any other like services". The point to be underlined here is that this deci4011 was essentlallv a creative one. There was no "intention" in the actual words of the Constitution to allocatt, this power to the Commonwealth as commercial hroadcaiting was merely a dream a t the time the Constitution was framed. Indeed any expresiioni concerning the 12. 4 ztstrallavt fidtral C oli, ( n/r(n: Debuti T701. 1, 283. 13 (15135) 54 C' L K , 26.' (1hird Se-i~oil,hielbourne. 1898), 62 T h e University of C)ueensland L a w Journal "intention" of a document are necessarily elliptical and to a great extent inaccurate and misleading. I t is as if the written document is personified and endorsed with an intention and a will instead of being a mere verbal memorandum. I t is individual human beings w11o have intentions and wills, who make choices and seek to accomplish things. Thus it was the High Court judges in R. v . Hrislan, and not the Constitution, who decided that the Commonwealth should have the legislative power to control wireless. This decision has, it seems, been relied on to support Commonwealth regulation of television14 but the High Court has never been called upon to decide the question. As well as applying the Constitution to modern technological developments which were not envisaged when the Constitution was drafted the High Court has also been called upon t o fill in areas where the Constitution is silent. The various problems of intergovernmental immunities, for example, con5titute a bod\ of law that has arisen independently of exprebs constitutional provision. Even \$,here the Constitution on its face seems to gix-e a clear answer to a constitutional problem the Court has an important task to play. Being couched in words, phrases and sentences as documents muit be, the Constitution is susceptible of varying interpretation at almost every point. The meaning of concepts ~ I I C ~ "excisc", "absolutely free", "just terms", "taxation", and as so on, can never be fixed with any precision but vary with the \.iewpoint of the judge called upon to decide their meaning. The meaning of the word "excise", for example, was said by the members of the first High Court to be a tax upon the production or manufacture of goods.15 However, a glance through the judgments in Parton v. T h e M i l k Board1G decided some forty-four years later will show that the meaning of "excise" has so broadened as to have become almost unrecognizable as the same concept. It might be best in order tb show the importance of the sole that the High Court plays in Australian federalism to look rather closely at a typical case that it is called upon to decide. Examiwill nation of M u n i c i p a l Council of S y d n e y 2). T h e C o r n r n o n z ~ c a l t / ~ ~ ~ show in a very clear way, in the context of a not very difficult case, the problems involved in the judicial review of a written constitution. The case arose out of the physical as well as legal reshuffling caused by the transfe~ence-of many State departments to the Commonwealth at Federation. Each State prior to Federation had lwen responsiblc for its own postal and telegraphic communications, cllstoms charges, defence preparations and many other duties that 14. Broadcasting and Television Act, 1942-1956 (Commonwealth) 15. Peterswald 11. I j n ~ i r l t(1004), 1 C.L.K. 497. ~ 16. (1949) 8 O ~ ~ . I A , 229. R., 17. (1904) 1 C . I / . R . , 2008. 111 \ o ~~t~ bvcxt \ . t , - t , ~1)). t i ~ r (~i!\titiitiO~) tilt, ( ~ o r i ~ ~ ~ i o ~(i ~ v t \~~; I ~ I - Ii ~ I I ~ ~ ~ I I ~ i tr-;ill-fc.1-ril.cc.of 1L.g;rl iIo\\.i,r rn;lctc. it ;r. prac-ticill ilc>cc>>\it\' ~ i t tl tlie \ ~ i ~ - iStat(>l ~ i i i l ( I i ~ ~ g \ o~i~ I~ou--irigt11f.si-~~c~orcl> I ~ 01 tl~,yc, : L I htkift dcii~;utrn<,rlth hlloiiltl ;rlyo i)c. tr:~n.fcr~-c,cito tllc' ('ornr~ior~\~~c~;iltlr. .. I iit' ( ori-titiition rnatltb i)ro\.ihio~ifor thi. in ic~c.tion (;!I. i l l \vllic.il l t \!.ah )~o\.iclc~cl t11;~t I i e1:11tt> to I)(. {)~-oclaimt'tl tilt* ( ; c l \ ~ c ' r - l l ~ l l O !I., (;cnc.r;tl tilc \-ariouh cicpartrnc~lts c.:tch Statt) \z.oulcl I~c'cor~le~ irl \.c.tt'd in the' I 'ornn~onwc~altl~. I:c.ioic. t!leir- t r ; i ~ ~ ~ f tI'I!~- L I I \ . of tll(>irlands aritl I)~iiltiiiig> ;, \vc,~-c. liai~lrto r.atc'tl I>!. tiit. inunicil~ali!!. in whicli tlit.?. \v(%rc> ~itil:~tc,el. 'I'lw i ~ s e ~ n l ~ t i o n !oc:ll txiation. frcjill tlie>- n.cres crc.ctc~t1 I:tlltlon Iit~ltl1))- t l l ~ r o n ~ , liati bc.c.11in many (:ahc>\v:ii\.td. 1;oi- c.zainl~l<., Z , the 3iunicipal Courici! of S!.d~lc,!. h;itl for Inan!. !cxar\ collc~ctc,~l r:itc,.; from the S c ~ v Soutli IYaler gu\.t\rrlrne~:tfor thcl occul~atioriof 1"-c.:fii-c, \vliicli 11ati I,,tc!n 11.-c.d to liorr,c> tiles dc.p;ir tmc,nts of cnbtoni,, 1~o.t~ ~ 1 ~ 1 ' tclegrn!)l~h,li,~\-al and rnilit:ir\. dofcnct. IfTllcn i i ~l O ( r l prc.nli5t.s lv~,rc, t1:1:1-ic*rrcd to t;rt. ('o~rirno~in.c~;rlth \.ir tlic of t11c. (;o\-i~~-nor-Gcr:t~ral'. p!oclamatic?rl i i i ~ ) \ ~ i \ u ; ~ . n c c ~ of srction (i!) ot t h i ('or?-titlltioii tl~c. cii::,.tic:n aroitx;:s I/: ;\.!ictl!cr tlir. S>-tlncl!. C'ourl: i! \vas ;I \.c>r\. real cn~il(! ..till i~ripoic,rat(,; oil tlic~in. -1'1 :, c;ric~~tioii o i : ~ thy Council ;L, t h r w rate5 ;~rrto:;ntc.tirc3 st>\.t~ral to tliousarltl- of 1)01'7ld- ;~111111~1Il~'. 7 i ) t b titcs.t oi :!ic ('oii~tiriiii:)~i .txtmc~d to co;lcl~cl(\I-llic'li ~)rc?~-idc~dt , ".I tha 5 t : i t ~ ~ not \titl;o:~tilii. ccrilscrlt of tlic I ' ~ ~ r l i a ~ n tof i tilt, ('olll-1i;til ~ lt ~nonn-caltl! . . . iii~l)o\cl \. tax on ~rol!(~~.t!. :L~I!. :111. of kind 1,clonging to tilt- ('onimo~~~r-e;rlcl~". 'Tl~i- svction stc~ii~r.ti flatl!: deli!. the. pc~\vc>r t l ~ cSydnc,\. to of c'olincil to collect the satrr;. The imposition Il,itl not hecn cons c ~ ~ t r .tu I I ttlc ('ornmon\:.c;llth, \vhich now o~vl-ied tl ~ thc ljuildingi in clue5tion. I n spitc of tliib, l~o\i.e\rcr, Sydney Council c1ai1nt.d thc to 1,r cmtitled t o 1el.y a rat?. Of caul-ie the Commonnrealtll dcnitcl its lialiility to pa)., ::rid cast, a 7 n s btated for t11c opinion of tilt. Eigl, C.ull1-t. tii! 111,ttti.r ag2.iii.t Ho\:;c.ver or:c. .-:;ioil ti!^?^:. -cction 1 1 1 . J : . Thr ;\ttorne>.-Ckrieral for Kew South \Talc5 a t the ti~nc., I<. I(. LVise, I<.C., apprared for the Council and in the cour-sc. of a11 ingeniol~s argument made the following points. 1 . The municip;rl 1t.1-1. in question was not a "tax" within t h f * ~neaningof s. 111 a t all: it Mias only a "rate" \vhich \\-as not tilt samc thing. I l e wah a l ~ l e support this argument by citing home to cases which suggcstcd the \vord "tax" in many English Acth did not include local county rates. 2. I f tlieie : - a t t ~ ~ n.i,rc8 taxes tllc.11 tlica!- were not iml)o5ctl I)!. "State". 11ut onl!. 111: , I 1lur:icil~al ('ol!ncil, and tllcreforc~ s . 1 1 1 tiid not a p p l ~ CL 3. Even if the rates were State imposed taxes thim t l ~ r C'omxnonwealth got-ernment had by its legislative silence on the matter consented to their imposition. If no Act had been passed taking away the right of the Council to impose the tax then the Commonwealth must be taken to have consented to the rate being levied. 4. Even if his first three points were not accepted and this was a State imposed tax without the consent of the Commonwealth then s. 114 still did not apply to the case as it was not a tax on the property of the Commonwealth but a tax on the Commonwealth itself measured h>- reference to the amount of lands it occupied. 5. That if this were so then it was not invalidated by the doctrine of McCttllocl~ z.. Jfavyland, which would forbid the taxation of one government by another, because (i) the doctrine does riot apply to thc .\ustralian Constitution; (ii) if it does then it only invalidates the imposition of taxation that "unduly" hinders the Cornmon\t~ealth and the tax in question here did not. The arguments of Wise K.C., as can be seen, proceeded upoll a very litcral construction of the words used in section 114 and to a grammarian or a logician have something to commend thern. 'They certainly succeed in taking away the venker of certaint!. a i d claritj- n-llich the, words of tlie section seem to have on first rcatling. 1i.e will be conccrncd to see how the Court an,sn.er-cd these arguments and the 1)asis on whicli it PI-oceededin so doing. *\bout the first argument the Chief Justice, Sir Samuel Grifith, wemed to havr little doubt. He said: "It is true that the word 'tax' is sometime> used in the limited sense of an enforced levy for the purpose; of general government, but if a State itself has no power to make such a levy it cannot confer the power under another name. In a constitutional enactment, therefore, defining and limiting the power of constitutional authorities, the word 'tax' 1)zztst he conitrued in a wider sense, and a prohibition of tile imposition of a tax must be held to include any such imposition lsy a dclegateil authority, by whatever name the tax is called".15 Tlie double use of the word "must" is worth noting in this pas-agc as it seems to l)e Sir Samuel's sole reason for over-ruling \\.ihc.'.; argument. Ijealing with the second argument, Sir Samuel went on to say that the oiil!. origin which could be suggested for the right of the ('ouncil to impose the t: was an act of the Sew South \\'ales a x Parliament. I f that were so then, "it follows that if the alitllority which assumes to create such a delegation does not itself posscsb the power, the dc,l~,gation void, since the spr-ing cannot rise higher is than its ~ o u l - c e " . ~ ' ~ I S . 1 C.1-.R., 208, 2330, italics supplied. I!). 1 C . L . R . , 20Y. 230. .\ .1111iIar f:~tcli~\v~titc,(l tl~ircl:1rg111111~1it\ , ~ \ I I I Y Y ~ I)!. \\.i-c$. tiles ;I(I "l'110 c o ~ ~ , c ~ ~ li/ tt , i t ~ l c ~ / \c,ctiol~ Ill i y i t co11>1,1itc,sl)~-c,+t~d i~ I)\. -omci r)o>iti\.t, :ic.tior~ oil t11c' ~I;II-t tirc I';trli;t~nc~l~t, on(\ to 11i. of not t,~~,itl!i1lf~~r1.1~11 it.; in;trtiori".""I~l~t~ c.onlnic,~r ~ n i gtl ~ m;tili, fro111 t t11;lt \ Y ~ I ; I ~ I ~ V Cb. I l l "intt~llclc~d"t c(,rt,tinl\. (lit1 not .ccXnl to . (.ollrt ill I l ' k ' i ~ ~ d 7t ,~ i1'1,1lii1,v2' \ \ , i i i ~ , l ~I I ~ I I I . ~ ;ipplitd t h e doctrine, of AlfcC:rtliocil r q , .\ltrr:\,l~liri/ to tilt, . \ l ~ y t r ; t l i ~ l l ~ ('onstit~ltion. \\.hat ;lp~~car.< so far i, tilts conlplc,tc.ly diftc~-c~lit c1t.m construction5 pl;tct~ion .cyctioll 114 1,). Sir 5;~rn1lc,I (;r-iftitI~:mtl 13. I<. \Yi.c,. f b t h consiructior~s a r e , on thc word5 of t h ( >>c,c.tioll, ~~c~i.rnissil)lc,, b u t w h a t is of present colicern is \vhat influc~nc~t.;L jtidgc. to choo-c one rather than t h e ottier. T h e i1npac.t of hi. choict. in ;I fetl(.r;tl s!.stern is a trementlouh one. 11s O'('onnor , J . put it, "Tilt. sc~ctioli ma!. in htrictncis i~c;tr either interpretation if \Ye look merely a t the, \vo~-ti".~"~.:;lch ont. of t h e judges in this case m a d e cc,rtain ;~.,sunij>tionsal)out tlic. niiturc of a fedel-a1 s>-stem which dettbrlnincd ti i.r-l~oicc, thcy \voril(l r-nakc w1it.n iliv firlal judgments \yere gi\.t,n. Sir Samucl Grifith maintaintbd: "'l'hc~~-c, c.a:i III. i i o tlo~ii>t tliiit tlic. right of taxation is a right of ..o\~t~rcignt!-";':3 ;ilitl tliiit. " I T i \ manifest from the, wliole scope of tht, ('on-titution t h a t . . . thct ('ommonwealth :inti the St~1tc.sare regartlvtl a- t1iitinc.t a n d bel)ar-:~tcx .leign l)o\vcl. ;it I . 1:ut it is on]!. I w c a u e thercs is " n o doul)t" about tlle?.~, propo.;itions a n d t h a t the?. ;Lre "maiiife,t" to Sir 5arnlirl t h a t he cornc.3 t o the dccihion ht. does. *1'11c~1)i~hisfor t11t..cn I I I I ~ I - ~ ~ I C:i+t~r.tior~.JC~ will not be f o ~ u l t in the judgments of thc. ('our t , or in tllt. ('on>titl~l ticn. but o n l ~ Sir 5amucl Griffith', cor~cc,l)tioriof tile tt~lcl-;tl in s\.sten1. O1('onnor .J., aftcr holicstly pointirrg o11t Iri5 ill-c,tiic;~riirnt of choice t h a t is citrd ahove, went on t o s a y : " Isection 114. \That comes out of a n examination of this case is the fact that in the last rcsort the decision did not depend on the words of t h r Constitution because they were anlbiguous and open to two ciuite different interpretations. The Court could only choose one interpretation rather than thc. other i ~ \ -making certain assumptions ;~i>out governmc~ntalby-tcrn that was called into existence by the, ti~c. Autralian ('onstitution. Whether these assumptions were corr(sct or not is of n o concern her-e; the important point is t h a t the judp's and not the ('oustitution decided whether the IlIunicil~rrl ('ouncil of Sydne!. could tax the ('ornrnonwealth Government. If this is truv in tilts c'ontest ot a case u41c.r~there was a section of 1)url)orting to deal with the point, how the ('onstitution cii~x~ctlq. much more so Inust it be in other cases where the Constitution gives no, or onlj- a partial, ar,snt~r. No doubt it wa.s this sort of considel-ation that led Professor (now Justice) Frankfurter to rcfer to the ~)owcrs a ('ourt in i t fc.tlera1 s y s t e ~ n being " s t u p c ~ i d o u ~ " ' ~ of as in their extent and imp1ic;ttion. This does not mean that a judge of the High Court has a conlpletely free, unfettered, and so arbitrary, choice i11 each caw that comes before him for decision. His choice is limited by the authority of decided cases and by the logic of the profession in which 11c is trained. But it should also be remembered that it is ~nainlj. very difficult cases that get before the High Court, cases thc wlrich go to the very fringe of authority or which raise novel cluConstitution, in decided cases and in the general principles of federal government. Once found its application to a particular problem is mechanical. Thus to cliticize a judge for the result he comes to on the gruuntl t h a t another would be preferable is misconceived. The judge's choice is inevitable and determined for him by the "law". I'ersonr~l preferences that stem from political and social ideas are completely irrelevant. The fictional nature of this theory has been demonstrated by almost every writer who has written on the function of a Court in a federal system.30 I t will suffice to recall here 1,ord Deniling's 28. Attorne~p-Geneva1for AYew .i'outi~ I17al~s Tile Uvewevy Enipli?i,ees L-xioiz c. (1908), 6 C.L.K. 486, 500. 29. (1952) 85 C.L.R. xi, xiii-xi\-. 30. One of the earliest sophisticated discussions b>- a11 .\ustralian nriter is t h a t by X. Inglis Clarke in T h e Interpretn1~11)z [L IVr7ttrr1 C0)1st~tuiiot1 of which constituted ch. 11 of his book Studres 1r1 Australran Cowstztutional L a z ~(1st ed. 1901). 68 The Utzzerersity of Qzteensland Lu7~ Journal thrust "In theory the judges do not make law, they e\pound lt, but as no one knows what the law is until the judges expound it, it follows that they must make it".31 The theory, no matter how artificial, has been a convenient one for the High Court and it helps to explain why it has never been subjected to the same rigorous criticism and analysis as the Supreme Court of the United States. Most commentators have been concerned to link the High Court's theory of judicial positivism with its readiness to strike down unconstitutional legislation and with the limited facts it deems relevant to enquire into when disposing of such In both enquiries the Supreme Court provides an interesting contrast. I t has developed a number of doctrines which enable it to refuse to pass on many questions of constitutionality. These doctrines it seems spring from a self consciousness in tlw exercise of the power of judicial review that comes from a frank realization that it is a creative function with a tremendous impact on the government of the Cnited States. I t lias no salve to its conscience that some "brooding omnipresence" called law provides mechanical answers that have no relation to the policy preferences of its justices. Liktwise t h ~ social and economic evidence that is heard I)y tlie Supreme Court in passing on constitutional questions is indicativc. of its a\tal-mess of thc implications of judicial choice. The High Court on all but a few occasions has thought such material irrclevant to tlie 1t.gal issues before it. All t h i is not ncces.sarily to sa!- that the High ('ourt is a stupid body of I:r\vyers who do not realizc th' importance of the role they in Australian federalism and who subscribe to fictitious theories about the nature of thc judicial process. I t should be remembered that Sir Owen Dixon ga1-e a reason for his insistence on a "strict and complete legalism". He said that this was "the only way to maintain the confidence of all the parties in federal c ~ n f l i c t s . " ~ V Ithis he meant that in framing decisions, y by methods and in terms, which suggest that they are decided by principles of law independent of the judges the confidence of the public in the court will he preserved. If decisions were seen sometimes to depend on no more than the personal preferences of the judges then the Court would be rocked b~ the storms that have at times threatened the Supreme Court of the United States. I t is 5 ions essential in his vicw t h a t a le@ approach to constitutional que-t' 31. T h e Changitzg 1.rrrc' (l95O), Preface. 32. e.g., Iiadish, J~rdrrrnl Revieus ln the H i g h Court a v d the S u p r e m e Couvt of the (Jrzited S11rft.s (1959) 2 Melbourne I7.L.R. 4 and 1 3 7 ; Sawer, T h e S u p r e m e Court ( ~ ~ l d H i g h Court of Australia (1957) 6 Journal of the Public Law 482. 33. op. c i l . note 29, xi\-. Judicial Biography-A P~eliminaryObstacle 69 be utilized to preserve the respect and even the awe in which High Court judges are held. This approach is made very much easier in Australia than it would be in the United States because of the fact that the High Court is a general court of appeal on common law matters and also because in the last fortv years almost all its appointees have been eminent silks with little or no political experience.34 The first factor ensures the carrying on of the English legal traditions and the second means that the judges are not often in the public eye. Both make for a vastly different court from the Supreme Court of the United States. The present interest in this theory of judicial positivism, whatever its reasons, is the effect it has had upon biographical interest in the members of the High Court. has already been pointed out, there are only two such studies that have been published. This is in marked contrast to the position in the United States where there have been over one hundred published book length studies dealing with the lives and work of Supreme Court justices. -4s well as this the law reviews contain a veritable flood of articles written on particular aspects of a justice's work. I t is surely no accident that this has happened in a country where the creative, governmental role of judges is freely avowed and where Supreme Court personnel are drawn from the politically active. Once it is assumed that policy preferences enter into the judicial process then the influences that determine these preferences become a legitimate subject of study. Not onlv does it give coherence to the work of the individual judge, but such studies throw valuable light on the problems of government in a federal system. In Australia we have seen, however, that objections to judicial biography are twofold. The first which would deny the need for such studies was based upon the view that the judges role was merely passive. Enough has been said already to demonstrate the falsity of this. The second was based upon the kind of reason that Sir Owen Dixon mentioned, that a strict legalism was necessary to the preservation of the confidence in the judiciary. This means, as he has claimed elsewhere,35 that the administration of the law in its higher reaches should be cloaked by an anonymity and an air of mystery that will screen the work of the individual judge from the public eye. I t is true that using the guise of a rule of law dictating an inevitable result to cover up decisions based upon other factors undoubtedly preserves the dignity of the Court as an institution. This is a value that is not lightly to be discarded. On the other hand, constant repetition of the fiction obscures the necessity for 34. See Sawer op. cat. note 32, 496-502. 35. op. cat. note 7. choicc. and prevtSnt-;;I clrar statement of reasons, philosophies artd idcx:tlh ~ l r i c h have rriotivatcd the various justices of the High Cour-t. If on(. clisagrrcls with tlie assumptions made by the justices ouc car1 validl\- criticize tile decisions to which the>- give rise. I n a C(~drra1 s\.htr.m as wc. 11avc.seen, the problem of judicial review is a j)rol)lem of goverllmcnt, and in a federation where government is I~ased upon d(,mocratic conceptions that aspect of governmerlt h o u l d not bc. entir-el\, removed from public scrutiny. Awe and mystery are strange c.onceptions with which to surround an instit11tiorl i l l a dcsmocratic c-ountry and they should give way to a respect and confidence born of a frank appraisal and understanding of tlit. ('ourt's function ill the com~nunity. It has becomc increasingly common when writing on 1)rol)lemtllat are common to Australia and the United States to sub-title the article, "tlie Australian Experience". Thus one can read articles on, for example, "Full Faith and Credit, the Australian I : s l ~ e r i e n c e " . ~ V ~ u area of judicial biography, lio~revcr,\vc, this Ila\.c. no "experie~lcc~" contribute, so a brief examination of tht. to l'nitVd States r.sl)c.ric.nce in this area might be useful. 'The \,ast mass of the writing may he roughly divided into four main catc.goric.s. First there is tile "Life and Correspondence of . . .", ~vhich u > ~ ~ a lisy a nohtalgic literary rememl-~rancewritten I)!. a men11)t.r l of the justice's fanlily or a close personal friend. It i intersper-c,d : with selections from the letters and the public papers of the judge. A:, a rule the onl!- value in its publication would scern to be tllc. personal paper5 it reproduces because i t contains no critical comment .37 One Australian judicial biography would seem to fit into thi.; categorj., and tllat is the biography of Sir Georgc Higinbotham, 127ho was Chief .Justice of Victoria. It was written by his close friend, Profehsor- Edward hIorris of the Uni\-ersity of ? . I e l l ~ ~ u r n o . ~ ~ Srcond, thclrcz is the publislled thesis that has been prepared in order to quaiif!- for a post-graduate degree. This type of work ~ ~ ~ (I < I !~ < > III ~Il!J>& ~ l i It?, Juciicatae 1. \ L I Sce x l b o 1)011o\a11 l < f ~ f t I l ~ 1 1 1 ~ 1 ~ ~ 1 1 1 ~ o 1 ~-1 /I? .I I ~ . \ / I ~ , / I I;IX / I ~ ~ Y I I V I 33 K c \ \ York [ . . [ . . I < . .5(11~ t \ I IZ (19581, I ~ ~ ( i l i i i ; ('o\\cll, / J I ~I ' I ,/lo i,\f/frtio~~ : T/I( :i~i,sIr : , I > 7 I<<.> J u d i c ; ~ t , ~ c , I. -, C'liffos(1, .Y(~tlf/~iz C'l~].fotd: I ~ ~ ~ I ? I I(1!122); ja!., '/'/it, [.if;, o! , / < J / I I ~ I~I,(~/ 37 It{;;.; L ' I ~ I .\1,11,1 ~ J I I . \jy11111 111s L L I I , V P S ~ O ~ I ~ ~ , I I [<-l(~>i < Z171i,~crU't~?eo1~.? I I ~Z p11p1 (lS,3,31 : 1 l a >eh, 1,11i,f!i\ ( I!) t 2 . C ' . /-~OTI(!I, l \ 1~1ft7,7'1j111.7 1~11(l.Sp~~,clit~.s ! l i i ) ; l l c I < ( ~ % , Il (lX 1.11~~ Z I I ~ ( ' o r n ~ s p o ~ i d r ~ i r,/anzes I ~ ( t i i / (sepul)lihl~ed1 ! ) 4 ! ) ) ; S c I i u c k ( ~ r ~ 11r J.il<, I!/ ~ l 7', (fliil f ' i f t l i ~ .Stir i r u r ~ f .SLI/~~IO)I ~ l l ~ o( ~ dL I (18741; S~OI.!.. TJo '~( /.if[ uiid l.cttl,ts r,l Josr.l)li .qtor.i, (18.51). YS. JIorris, .4 , I ~ ~ , I ; o ~(;c~,gi,H~g~nliotirrrni I II q ( I895I. :{ti. ~ Q J ~ ) , (.,< grne~-all!- focuses on the legal pliilooplly of tlicl justicc. I t i. usually entitled, "'fhe C,onbtitutional Doctrine. of . . .", or "Jlr. Justice . . . and the Suprome Court". Gc~nel-allyit contains ,l quit? short biographical chapter followetl 11)- ,in anal!.si.; of the justice's opillions."Vncreasingly \roiu~nezof thik; a r t are appearill:: \vhile the justice is still a1i1.e.~" The third t!.pc is t h e pci-sonal I)iogr;~lii~\- \viiicl~thc ~ n ; ~ n ' in lifcl ant1 pul~licc:irt,cJr- arc ~ ) r t ~ w n t ti~ d . t wol-k on tllc. 5uprc~n1t. x ~ his ('ourt rccei\-t.h littlc 01-no treatmrnt. I t is rclgai-rlcd ah ;in c.piloguc' rather than as :t clirnas of a c;Lret,r. in somtLc,a.ct. thiz iz duo to t h r short period t h a t tl-I<. jubtice .;cr\.cil on t h I>cnc.lr,Inlt in otl1c.r~ the 1)iographr.r i. not profr..\ion;~ll!- c.tluilq~t~(i contents himsc.11' ant1 \\.ith hiringing out cl~iotation. froin tilts 1c;~tiing opirlions liis su11jt.c.t Kii1.c for ;I c h a ~ ~ t e r . " the .iustralian t7iogr;ii)llic. of ~ n t ~ r n l ~ t ~the~ High of r , t'ourt fall into this catt.gor!;.lY lndccd, . little' tlitl john ('. \'ocklt~~o think of Sir Saruurl (;riffitl~'\ \ ~ o r ka. ('1lit.f Juhtice of -1llhtrali;l tlrat he treated tlii. part of hi> c;Lrcscsl,ilo~lgwith his 1)oetic;tl endeavour.< in a ;hart ci~al)tcrc~allrtl "('11ic.f ,lu.ticc ant1 l'oct".':' Fo~~rth, there ih tlic full zcalt, juclizial hiogral~h).. Here, tllc< ~llan':, formatix-c !.c;tl-<, hi.; political c-ar~tjl-, jtltlicial work, cxtc., 11i. all receive rstensil-c, and detnilecl treat1nent.l" -4s well as tllesc hook lcngth ~ttidit'sthew art, hundreds ant1 hnndrcds of law rr\-iew :~rticle-; 1-ariou. asl)ccts of the work of on c,acli of the ITnited States Supreme ('onrt juhticcs who 11a1.e ever a t on the bench. The Illdeli t o Lcgal Pel-iodicals is thc catalogue of these. -. of ll~i-ct. I f thrrc i to II(> a- developmt.nt in thi:, field of scholarship in n ! :luitralia then it ma!- \ves11 bc. tliat it \\.ill be mailil!. of the secontl and fourth typc listcd al~ol-t,. 'l'he first \I-ould not find a publi.;hc,r J 10. 41. 42. 13. 11. y . . ( lark. 7'1i, ( ' o i t , ~ t i f ~ r / i i ~ L i), OI C ~ Y Ii,j I / I~ S ! I C ~ ~ t ~ ,( L Hnr.Inii ( 1 9 1 3 ) ; Hei~clcl. ( ' h ~ i i / t . < r c i i c t f i ~ g i i t ~alict tlri S ~ c p r ~ , n i ('ozlif (1!i51); l i l i n k h a t ~ l t r I:d;'o~tl I:? .\ c> , 7)01<,q/(i,irr Corrrt (l!lf.ii. i~~ L .g., I:i-,r~~k, i . Jic.#f7r.i Hlrrrk, ?'/ti . I / ~ I I N I I / ! i s Opiiiioiis (1!)19); \Vlllial~ls, ll I ~ g o 1. I . I 5'!1fii\, I L L tiit, ]itdrcitrl I'rorrss (l!J5O). . x . , ( at?, I . I I C I ~(J.C. /.ii~>rav:. 5 t ~ c c f ~ s s i o I~>t I ~I < t 7 ~ o ! r o(i9:3r;); I ~ ~ I I I ~ ~ ~ I ~ , IS ( ~z L!c71jt1i1ii71 .\.. ( ' i r ~ d o ; o (1!J40) ; J l o n a g l l a ~ ~ , ,[o/iii J q , L)ejerzdcl oJ l . i l ~ c r t ~ , r 193.5) ; Smitll, , / I I I I I PLf7ilso~i, S I:oi!+idilig I ; a ! l i i . ~1742-1 798 (1956); \\-ei>eili~usger,7.111 1-iji (tf , / o / ~ I. I1 1 ~ 1 ~ (1937).1 1 ~~~~ J . fieynolci-, I1,~l!J:+l ) ; 1 . ( , \~ocl ' , ( . / i U ~ l t ' LC'U)I> ~ l if S/ ~ b~librntS (1951j : JIasorl. f l i r ~ l n i i F i s k e .S'torir : Pilltrr c,f tiif, L n k , ( 1 9 5 6 ) ; Ho\\.c, ,/rtsiirr Holitzrs : 1.111. . S i i n p i ~ ; gI p r n r s lX11-l r(7O (1957. 'This 1s the first ( ~ a projected three \.olume s t ~ i t l y; l3e\-cr1cige, Z'hr L l J e of.lohr: i l I a r s i r ~ l 1 f ) ( 4 YOIS. 19ltj-I91!j); Bent, J ~ t s l l r r ,O l i i , r . ~ l - t ~ ~ d e l l I Holnrcs (1932): Hiddle, .lIv. Jztstzce Holtrzes (1943). #. 72 The University of Queelzslund Luz' Journal in Australia and the third may not bc written for the very good reason that the practice has been towards only appointing justice.who are distinguished lawyers. In the nature of things it would be hard to write about a lawyer and ignore his life's work. The development we may espect in the next few years in Australia will most probably be in the second category. With the development of post-graduate facilities in our Law Schools i t seems inevitable that judicial I~iographyin some form will become the subject of many theses sul~rnitted the higher degrees. For the rest the increasing for size of the full timc academic staff of our Law Schools provides thc hope that one day full scale studies of our High Court justices wil' appear. *LL.B. (Mell).); Teaching Fellow a t the College of Law, University ot Illinois; formerly Scnior Tutor i11 Law in the University of Rlelbourne.