|‘Anomalous Occurrences in Unusual Circumstances’? Towards a History of Extra-Judicial Activity by High Court Justices
High Court of Australia Public Lecture
High Court of Australia
Canberra 30 November 2011
Justices, distinguished guests, ladies and gentlemen, it is indeed a great privilege to be invited here this evening to speak in the High Court of Australia Public Lecture series, following in the footsteps, earlier this year, of my colleague and friend, Professor John Williams of the University of Adelaide.
I’d like to begin by thanking the Court and its staff and to acknowledge all who have helped to make this lecture possible, especially Dr Hanna Jaireth, the Court’s Public Information Manager.
Introduction – Judicial Independence and the High Court
I was drawn to this topic — the history of extra-judicial activity by High Court Justices — by two things: first, my longstanding interest as a constitutional lawyer in the independence of the judiciary from the other branches of government and secondly, by my closely related interest in the High Court of Australia itself.
The independence of the judiciary from government is a fundamental principle of Australian democracy. It forms part of our common law inheritance and is embedded in Chapter III of the Australian Constitution. Its rationale is both simple and compelling. Keeping the judiciary apart from the legislature and the executive promotes public confidence in judicial impartiality which is pivotal to acceptance of court decisions.1 Moreover, it ensures that the judiciary can subject the government — as well as individuals — to legal control, thereby preserving the rule of law.2
The High Court of Australia, of course, hears cases on all aspects of Australian law, but has a particular responsibility for the interpretation of the Australian Constitution.3 That legal role has, in turn, placed the Court in the midst of some of the great social and political controversies of Australia’s post-federation history. The Bank Nationalisation Case,4 the Communist Party Case,5 the Tasmanian Dam Case6 and Mabo7 all provide familiar examples.
So, to revert to judicial independence, while it underpins the authority of all Australian judges, nowhere is it more important than in this Court. And certainly the framers of the Australian Constitution (our so-called ‘founding fathers’) clearly intended for the High Court to be above the political fray.8 In the Conventions of the 1890s, there were numerous statements to this effect, but one of my favourites is that of South Australian delegate Sir John Downer who envisioned the Court as being ‘in a calm ether of its own — removed from party strife and political passion’.9
Applying Judicial Independence — Extra-Judicial Activity as a Case Study
The theory of judicial independence is one thing though, how it’s applied in practice in a society is another. And that’s particularly so in Australia with our dual English and American constitutional heritage. So, for instance, despite England’s robust history of judicial independence, its apex court was, until recently, a Committee of the upper House of Parliament, the House of Lords.10 And again, until just a few years ago, the English Lord Chancellor was both a judge and Cabinet member.11
Now the fact that Australia has a written federal Constitution has meant that, drawing from America, we’ve practiced a more rigorous form of separation of powers and judicial independence, at least in the federal sphere, than in England.12 But precisely where one draws the line — so, how isolated should our judges be from contact with legislative and executive functions — has always been to some degree contested.13
And the more specific question whether judges should engage in extra-judicial activity — by which for present purposes I mean service outside the courtroom as Royal Commissioners, on other executive bodies or, as we’ll see, even in diplomatic roles — provides a fascinating case study of these tensions in an area where the Constitution, I should say at the outset, does not necessarily provide clear answers.14
So, what has been the High Court’s experience in this regard?
Extra-Judicial Activity and the High Court
Well, the conventional wisdom is that, subject to some well-known exceptions, High Court Justices have generally refrained from the sort of extra-judicial activity I’ve just mentioned (and that’s certainly so today).
The well-known exceptions cluster around the extra-judicial service of Justices Sir John Latham and Sir Owen Dixon during the Second World War when they both took leave from the Court to serve as Australia’s official diplomatic envoys to Japan and the United States respectively.15 Latham spent a very difficult year, as you can imagine, in 1941 as our first head of mission in Tokyo — an assignment that came to an abrupt end after the attack on Pearl Harbor in December of that year.16 And Dixon ran our Washington mission from 1942 to 1944, with all that entailed during those critical years of the war in the Pacific.17
My lecture title in fact comes from a judgment of Chief Justice French and Justice Kiefel where their Honours suggest that these wartime ventures by Latham and Dixon ‘might be regarded as anomalous occurrences in unusual circumstances’.18 And indeed, in a recent article I argue there is much that was extraordinary about what they did, especially the way in which war so readily broke down the usual barriers between the judiciary and the other arms of government, allowing two of our most senior Justices, without resigning, to accept full-time appointments deep within the executive branch.19
But to return to my main point, Latham and Dixon’s wartime work aside, the orthodox reading of High Court history is that, unlike a number of other Australian courts, its members have generally abstained from extra-judicial work.20 And this is a view of the Court’s history that has come from within the Court itself. So, speaking at the Australian Legal Convention in 1955 and in the shadow of the Petrov Royal Commission, then Chief Justice Sir Owen Dixon claimed that the High Court:
has always, with only one very trifling exception during the [First World War] … maintained the position that its judges ought not to be Royal Commissioners.21
But Dixon, on this occasion, was mistaken (or, at least, did not express himself clearly). Two Royal Commissions were in fact undertaken by members of the Court during the First World War, one in 1915 and the other in 1918. And when closely looked at, neither, in my opinion, can be described as ‘trifling’ in nature.
So, in the spirit of the second part of my lecture title —‘towards a history of extra-judicial activity by High Court Justices’ — I’d like to tell the story of these Royal Commissions and some other largely forgotten instances of extra-judicial activity in the Court’s first 40 years. So, while Royal Commissions and inquiries will be my primary focus, I’ll also discuss two other extra-judicial ‘occurrences’:
First, Sir George Rich’s role as a member of the official Australian delegation to the Third Assembly of the League of Nations in 1922;
And secondly the appointment in the 1920s of the Chief Justice of the High Court to the National Debt Commission, an executive body in every sense of the word.
And my overarching thesis is that when the Court’s first 40 years are considered — so the period up to the end of the Second World War — there is evidence of a more substantial, though admittedly uneven, history of participation by its members in outside work than is frequently acknowledged.
So, let me begin with Royal Commissions and inquiries.
Royal Commission and Inquiries
1 Rich Royal Commission
The 1915 Royal Commission was undertaken by someone I’ve already mentioned — Justice George Rich — appointed to the High Court by the Fisher Labor Government in 1913.22
The Rich Royal Commission examined the management of a large military training camp at Liverpool, now part of greater Sydney. It was prompted by a speech — what today we’d call a whistleblowing speech — in the House of Representatives by an opposition member, Mr Richard Orchard. Orchard claimed that the camp, to which new recruits were sent for training prior to departure on the troop ships for overseas, was seriously mismanaged. He alleged, among other things, that there were shortages of uniforms and warm clothing for the men, that the huts in which they slept and even their bedding was sub-standard and that the camp’s hospitals were poorly run.23 The Fisher government initially defended the camp.24 But, within a week of Orchard’s speech, the Prime Minister told Parliament that Chief Justice Sir Samuel Griffith had been asked ‘to appoint a Justice … to inquire into this matter’ which, said the PM, ‘strike[s] at the very vitals of our defence system’.25 Rich was appointed Royal Commissioner a few days later. He promptly moved into the camp to see conditions there for himself and begin hearing witnesses.26
It’s something of a mystery as to why this Royal Commission has so receded from our collective legal consciousness — from accounts of the Court’s history — because it attracted considerable public interest at the time, the newspapers reporting on ‘Mr Justice Rich’s Inquiry’ in detail.27 This publicity, however, may ultimately have led the government to rue its decision to respond to the Liverpool Camp controversy in this way. Rich’s report, delivered a month after his appointment, was adverse to the government.28 He vindicated nearly all of the opposition’s claims, concluding that the Camp subjected the men ‘to unnecessary privations and hardships’ which were ‘not only cruel, but calculated to endanger their lives’.29
Stung by this outcome, some government members sought to undermine Rich’s findings in Parliament. The Minister of Defence, Senator George Pearce, implied that Rich had been influenced by ‘grumblers’.30 And Senator Albert Gardiner pointedly suggested that ‘Mr Justice Rich may have viewed the camp from the stand-point of one who is accustomed to all the comforts of a first-class hotel like Menzies’, or the Grand’.31
I don’t know how Rich responded to this, but even prior to these barbs, it appears that the early High Court Justices harboured reservations about the appropriateness of their participation in government inquiries and may not necessarily have agreed to do so in peacetime. I say this because in July 1915, Rich wrote to fellow High Court Justice Sir Edmund Barton, then in England, to thank him and Lady Barton for their condolences on the death of Rich’s son, John, whilst on active service in France. Rich explained in this letter that he was in the midst of an inquiry into the Liverpool Camp and he told his absent colleague:
We had always considered … Royal Commissions were out of our line so that when … [Griffith] wired … I … remind[ed] him of our resolution. However they all thought there were special circumstances.32
Rich did not identify what these were, but presumably the members of the Court agreed that the defence ‘vitals’, to which the Prime Minister had referred in Parliament, were sufficient to justify Rich serving as a Royal Commissioner in this instance.
2 Griffith Royal Commission
So, that’s the first Royal Commission conducted by a High Court Justice — not so ‘trifling’, as I said. However, the second Royal Commission undertaken by a member of the Court in this period — by none other than Chief Justice Sir Samuel Griffith himself — concerned an even more combustible topic (at least potentially).
What happened is that in January 1918, Prime Minister and Attorney-General, Billy Hughes, wrote to Griffith requesting that a ‘Senior’ member of the Court be made available, as a matter of urgency, to report on the recruitment levels needed to maintain Australia’s military forces overseas.33 Now, as anyone who has studied Australian history will know, this was clearly a politically charged and divisive topic — the second conscription referendum had failed only a month earlier.34 And indeed, contemporary newspaper accounts suggest that one purpose of this Royal Commission was to attempt to defuse some of this conflict by providing an assessment of Australia’s recruiting needs, in the words of the Director-General of Recruiting, ‘free from real or supposed political bias’.35
After conferring with fellow High Court Justice, Sir Edmund Barton,36 Griffith was appointed Royal Commissioner on 6 March 1918.37 While Hughes’ original letter had described the inquiry as involving ‘a matter of great public importance’,38 the terms of reference provided to Griffith were remarkably narrow. He was essentially asked to specify an enlistment level that would keep Australian forces at their existing capacity,39 an issue he approached like a mathematical problem.40 Indeed, he completed his three-page report a week after his appointment.41 It recorded the existing size of the AIF, likely future losses of men, the numbers required to replace them, and so on. Griffith’s conclusion was that 5,400 new recruits were needed each month, but also that an additional 34,000 men were required in case of sudden ‘heavy losses’.42 Once the report was made public, it’s notable that Hughes was quick to claim that it vindicated his recent referendum stance that 7,000 new recruits per month were needed.43
Reflecting on this through modern eyes, it’s hard — I think — to escape the impression that the Griffith inquiry was established by Hughes, as authors McInerney and Moloney have suggested, ‘to obtain, from a distinguished Judge, a desired answer to a political problem’.44 Yet, looking at the newspapers of the time, Griffith’s work attracted limited public attention compared to the Rich Royal Commission and the evident risks for the Court in undertaking this second inquiry did not come to pass.45 According to Griffith’s biographer, Roger Joyce, the Chief Justice’s report had a minimal impact on the issues it addressed.46
3 Royal Commissions Refused
So, that’s the two Royal Commissions conducted by High Court Justices during the Great War. By contrast, after the war — and that’s where I want to turn my attention now — the Court became increasingly sensitive to the risks posed by extra-judicial activity to the ‘calm ether’ that Sir John Downer had described. Of maybe, it’s fair to say, it reverted to its original position on Royal Commissions referred to by Rich in his 1915 letter.
Either way, after the war — with the two wartime precedents presumably in mind — the Commonwealth government persistently asked the Court to provide Royal Commissioners from within its ranks. To this point, I’ve been able to ascertain that, between the wars, the Court was approached in relation to no less than six separate Royal Commissions, possibly more.47 But each time, the Court said ‘no’.
This shift to the High Court’s contemporary position that, in Dixon’s words, ‘its judges ought not to be Royal Commissioners’,48 is generally attributed to Chief Justice Sir Adrian Knox who succeeded Griffith after the war in 1919.49 However, the break between the two periods was not necessarily abrupt. In July 1918, while Griffith remained Chief Justice and hostilities in Europe continued, a meeting of the Justices rejected a request from the Hughes Government for a Justice to inquire into the internment by the Minister of Defence of a group of alleged Sinn Fein members.50 Griffith had originally agreed to make himself or Justice Powers available for the inquiry,51 but subsequently recanted, concerned, among other things, that the task might — as Griffith’s views were recorded at the time — ‘associate the High Court with political action’.52
But back to the Knox Court. What is of particular interest is that its refusal to undertake Royal Commissions was resisted by the Commonwealth government, at times stridently so.53 In this regard, an exchange that occurred in 1928 between then Commonwealth Attorney-General John Latham — who, in 1935, would himself become High Court Chief Justice — and Sir Adrian Knox is especially revealing. Latham wrote to Knox specifically to object to the Chief Justice’s decision not to chair a Royal Commission into claims of attempted bribery of certain members of the House of Representatives.54 In this didactic letter,55 Latham claimed that it was in the ‘public interest’ that judges conduct Royal Commissions — though admittedly in ‘rare cases’ — because, he said, of the judiciary’s ‘unrivalled reputation for competence, impartiality and fearlessness’.56 These special cases, Latham told Knox, involved issues ‘much more important than those which arise merely between individual litigants’.57
By contrast, Knox’s reasons for rejecting this particular request show that the Court saw the public interest quite differently. In his letter to the government, Knox described the proposed Royal Commission as ‘necessarily and inextricably connected with politics — and the seamy side of politics at that’58 and he went on expressly to adopt the ‘Irvine Memorandum’ of 1923.59 And I should interpolate that the Irvine Memorandum is well-known to those who study judicial independence in Australia. In it the Chief Justice of the Supreme Court of Victoria, Sir William Irvine, stated that his Court’s judges should not serve on Royal Commissions.60 This was because public confidence in the judiciary flowed from the circumstance that judges had traditionally ‘confined themselves’, said Irvine, to judicial work and thereby avoided ‘political controversy’.61
Now, while Attorney-General Latham was not persuaded by these arguments in 1928, it’s notable that when he became Chief Justice in 1935, he declined still further government requests to supply an inquiry head from within the Court. And the Latham Papers — held just across the way in the National Library — contain some fascinating glimpses into this.62
4 McTiernan Inquiry
Now, it’s sometimes thought that the Knox Court marked the end of High Court participation in Royal Commissions and inquiries,63 but that’s not actually the case. So, going back to Dixon’s 1955 claim that the Court had only conducted one Royal Commission, not only was Dixon in error here, but he failed to take account of a secretive executive inquiry — albeit not strictly a Royal Commission — undertaken by Justice Edward McTiernan during the Second World War.
I won’t go into the details of this inquiry here — I’ve traversed it to some extent already in a recent article64 — but essentially in early 1943, McTiernan was appointed by Attorney-General Evatt to report on claims of fraudulent behaviour at the Aircraft Production Commission Testing Laboratory in Sydney that had potentially — and this was the fear — compromised the structural integrity of the Beaufort Bombers.65 The matter was so sensitive that censorship bans were placed on reporting of the inquiry66 and, as far as I’ve been able to ascertain, McTiernan’s lengthy report has never seen the light of day,67 though a summary, prepared for Cabinet, is in the National Archives.68 The only other trace I can find in the public sphere is a note in volume 66 of the Commonwealth Law Reports recording that the inquiry ran from 1 March to 10 July 1943.69
5 Conclusions: Royal Commissions and Executive Inquiries
Pausing then, what can we say about this trio of inquiries by High Court Justices — Rich, Griffith and McTiernan? Each drew a Justice into executive service and each, at the same time, demonstrated a risk of that service. In Rich’s case, he became the subject of political sniping, though not, it seems, in a sustained or ultimately damaging way. In Griffith’s case, the indications are — at least to modern eyes — that the government may have sought to use his independence for political ends. Of McTiernan, secrecy makes the circumstances of his inquiry difficult to assess, but that, in itself, emphasises its antipathy to ordinary judicial work.70
What binds these inquiries together, of course, is that they were all conducted in wartime, a circumstance that, as I mentioned earlier, has traditionally weakened, in the national interest, the ordinary requirements of judicial independence and separation of powers (though whether rightly so is another question).71 This then highlights the Knox Court’s decision, between the wars, not to become involved in Royal Commissions. Yet, that decision was not, as it’s sometimes portrayed, a blanket ban on peacetime extra-judicial work, which takes me to my two final, and again largely forgotten, happenings in High Court history.
Justice George Rich’s Trip to the League of Nations
The first being Justice George Rich’s trip to the League of Nations.
In 1922, Rich became the first High Court Justice to serve in a diplomatic-type role when, at the invitation of Prime Minister Hughes,72 he travelled to Geneva as a member of the official Australian delegation to the Third Assembly of the League of Nations. The Assembly’s agenda was wide-ranging and Rich represented Australia on two committees: the first examining ‘Legal and Constitutional Questions’, and the second ‘Political Questions’, including the controversial topics of ‘Protection of Minorities’ and ‘Mandates’.73
Trying to piece together from this distance what Rich did in Geneva is not easy, but there’s no reason to suppose that his role there was insubstantial or purely formal in nature. Indeed, the delegation head, High Commissioner to London and ex-Prime Minister, Sir Joseph Cook, wrote to Prime Minister Hughes after the Assembly that ‘Mr Justice Rich’s legal knowledge and experience were most valuable in dealing with the numerous legal points that cropped up from time to time’.74 And the delegation’s official report seems to indicate that Rich was — as one would expect — an advocate at the Assembly for the Australian government’s policy position, notably in relation to our management of the mandated territory of Nauru.75
It seems Rich enjoyed this work. On his return to Australia, he wrote warmly to Hughes that ‘Geneva was very interesting. I am glad you asked me’.76 He referred to his ‘report’, written in London, and gave a brief account of a speaking tour of the United States where, said Rich, ‘I did some propaganda’.77 Hughes must have known what this was because Rich did not give details. But other sources make it clear that Rich used his speeches in the United States — he travelled to New York, Buffalo and Chicago — to promote the League and its work,78 something he also did publicly in Australia.79 A set of speaking notes in the Mitchell Library in Sydney indicate that he regarded the failure of the United States to join the League as ‘deplorable’.80
So, that’s the first extra-judicial venture by a High Court Justice between the wars.
Sir Adrian Knox and the National Debt Commission
The second is something of a paradox: the decision in 1923 of Chief Justice Knox — the same Knox who fended off Royal Commissions — to agree to become a statutory member of the National Debt Commission sitting alongside the federal Treasurer and other executive officials.81 The Commission was established in that year by Act of Parliament to manage the sinking fund for repayment of Commonwealth debt — as Earle Page said in his second reading speech, ‘independently of the Treasurer’82 — and, in that way, to promote confidence in Commonwealth finances.83
Knox seems to have regarded this role as Debt Commissioner as compatible with his position on the Court since parliamentarians were informed of his agreement to serve as the Bill made its way through Parliament.84 However, in debate on the Bill, the designation of the Chief Justice as a Commissioner was criticised by some MPs including none other than then Liberal Union member for Kooyong, John Latham.85 Latham was so opposed to the measure that he joined with Labor in voting against it at Committee stage,86 arguing that Parliament ‘should jealously guard against the utilization of the services of members of the Judiciary for other than strictly judicial work’.87 Latham and the other critics were in the minority, however, the government intimating to Parliament that the Chief Justice had been placed on the Commission to help ensure it would ‘command respect’ and ‘be impartial’.88
Now, as a result of the National Debt Sinking Fund Act, successive Chief Justices of the High Court served quietly, and, I must say, without apparent controversy,89 on the Commission for over half a century — including, in due course, Sir John Latham. And it was not until 1989, at the request of Sir Anthony Mason,90 that legislation was passed to remove the Chief Justice from Commission membership.91
Reflections and Review
So, let me endeavour to draw some of this together, before concluding. Where do these largely forgotten narratives take us? There is a great deal I could say, but I’ll confine myself to four observations.
1. First, as flagged earlier, my argument is that looking at these formative decades in the Court’s history, its members did more extra-judicial work, of more significance, than is commonly recognised. The astute listener will realise that I’ve confined my attention on this occasion to formal extra-judicial assignments and left informal, largely private, activities — such as the executive advising done by Justices Griffith, Barton, Latham and Dixon92 — to one side. That’s another lecture, but of course it adds to the overall quantum of off-court work.
2. Secondly, these accounts expose the early Court’s efforts to grapple with the normative standards governing the release — or not, as the case may be — of its members for outside work. The relevant touchstone then was the same as now: the need to preserve the Court’s reputation for impartiality93 — its place in the ‘calm ether’ above ‘party strife’.94
The challenge though for the early Court in making this assessment was its novel role as guardian of the federal Constitution which arguably required it to exhibit a higher degree of autonomy from the other branches of government than colonial and state courts of the period.95 Interestingly, the Court’s initial (and later) position on Royal Commissions seems to have recognised this. As Rich wrote to Barton in 1915, the Court had determined not to undertake such inquiries, though it seems that the imperative of war persuaded he and his colleagues to bend their self-imposed rule.96
3. Which takes me to my third observation that war emerges here as the factor most commonly associated with the performance by members of the Court of outside tasks.97 This might suggest that the Court’s overall tradition of extra-judicial service in the period under consideration was, in fact, one of restraint. However, in my opinion, to say that risks isolating the executive functions performed by Justices in wartime from wider analysis of the propriety of the Court’s involvement in off-court work. I believe there are very real questions about whether war can justify members of the Court becoming an embedded part of the executive — as Latham and Dixon did as diplomats during the Second World War98 — or engaging in largely secret extra-judicial activities, like the McTiernan inquiry.99 The Rich and Griffith Royal Commissions, by contrast, as independent inquiries open to public scrutiny,100 were far more compatible with judicial office than these later ventures, though participation in each posed risks for the Court that, as we’ve seen, may have only narrowly been averted.
4. My final observation then is to connect the past with the present. The modern Court does not engage in the sort of extra-judicial functions of which I’ve spoken today.101 It does not do so in peacetime, and, I hazard to predict, would be unlikely to do so in war. The explanation for this shift towards placing a greater distance between the Court and the executive is multi-faceted and I wouldn’t presume to essay a detailed account of the Court’s reasoning here.102 As I said, the touchstone of safeguarding the Court’s independence and impartiality (its integrity) has remained constant over time — what has changed though, in many respects quite dramatically, is the environment in which the Court operates.
And let me take just one illustration of this. The world in which Justice George Rich went to the League of Nations on behalf of the Commonwealth government is a very different one from today where global economic and political systems are highly integrated and Australia is a considerably more pluralistic and multicultural society. What may have seemed apolitical and remote from local controversy in 1922 would not, I believe, be so regarded today. The same can be said of placing a member of the Court today on a body like the National Debt Commission, though even in 1923 I still don’t fully understand the circumstances in which Knox agreed to serve on this body but yet so vigorously fended off Royal Commissions.
There is still much to learn, but hopefully I’ve taken you this evening closer towards a history of extra-judicial activity by the Court’s Justices.