Address by the Honourable JJ Spigelman AC to Launch Phillip Ayres' Owen Dixon: A Biography
ADDRESS BY THE HONOURABLE J J SPIGELMAN AC
CHIEF JUSTICE OF NEW SOUTH WALES
TO LAUNCH PHILLIP AYRES'
OWEN DIXON: A BIOGRAPHY
SYDNEY, 22 MAY 2003
Sir Owen 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 twentieth century, his particular genius for reasoning and power and clarity of expression placed him in the first rank.
For those of us attracted by intellectual sex appeal, and for whom that is not just a function of age, his judgments and essays retain their allure to this day, even in respects in which opinion has moved in a direction of which Sir Owen would have profoundly disapproved.
He was one of the great common law judges of the twentieth century. His peers included Frankfurter, Cardozo and, because of longevity, that nineteenth century figure Oliver Wendell Holmes. There were few, if any, contemporary English judges in his league. In his diary - covering 1911, the first two months of 1929 and the thirty-one years of 1935 to 1965, and without which this estimable biography would have lost much of its rich detail - he recorded those judges of whom he had a high regard, such as Lords Macmillan, Atkin and Maugham and why his regard for Maugham and Macmillan diminished.
One of many intriguing revelations in this biography is the identification of the length of time for which Sir Owen, for all of his anglophilia and his affection for English legal institutions, had harboured the most profound reservations about the abilities and conduct of many of the most illustrious British silk and judges of the day. The strength of his opinions in this regard were, no doubt, a product of the extraordinary confidence he had in his own abilities a confidence which, for those who have hitherto known him only from the judgments and speeches of his mature years, this biography reveals had clearly emerged in full force at a young age. It was only such confidence that could have enabled him to soar to the top of the senior bar of Melbourne and Australia in a remarkably short period and of which achievement this book is the first comprehensive testament.
The biography reveals that, from the time of his practice as a silk appearing in the Privy Council, Dixon developed a poor regard for the qualities, including the diligence, of many senior English legal figures, both counsel with whom and against whom he appeared and, particularly, for the judges who sat on the Privy Council. Their refusal to engage in the hard work, and the harder thinking, required for cases of complexity appeared to particularly offend his own profound sense of duty. Because of the significance of the federal system for the Australian polity, Dixon found the indolence of the English judges who sat on the Privy Council and their refusal to understand the depths of their own ignorance in this regard, to be particularly offensive. These were not sentiments that he felt able to express publicly. His sense of deference, which by 1960 he was able to describe to Felix Frankfurter as "too much British sentiment", was in many ways the other side of the coin to the indifference to, bordering on contempt for, colonial affairs, which found expression in the conduct of which he was long critical.
He held such views long before Parker v The Queen in 1963. The House of Lords having gone wrong on a matter of fundamental principle - that a conviction for murder could be upheld on the basis of the natural consequences of an offender's acts, leading Fullagar to say to him "Well, Dixon they're hanging men for manslaughter in England now" - Dixon pronounced, for an unanimous High Court in Parker, that henceforth the Court would no longer regard itself as bound by decisions of the House of Lords. Unlike all other steps in attaining legal independence from England, there was not a hint of disputation, given the eminence of the source.
Phillip Ayres does not speculate why, although appointed a Privy Councillor in 1951, Dixon never sat. It appears likely that he would not participate in a decision-making process that prevented delivery of a dissenting judgment. Indeed, as I understand the position, Sir Garfield Barwick only sat after that practice had changed. It may be that Dixon's attitude would have been different if he had a higher regard for his likely colleagues.
For those of us like myself whose primary exposure to Dixon was his judicial work, this biography reveals a broader persona and a richer career. His love and depth of learning in the classics is well-known and his capacity to draw on the literature of another culture, particularly that of Ancient Greece, to add depth to his reasoning and as a manifestation of the power of the western intellectual tradition, is a skill now lost to those of us who Roddy Meagher alone would describe as Dixon's epigoni.
Bernard Riley told the story, not in the book, of a conversation to the following effect:
DIXON: I have recently heard a wonderfully amusing joke Riley, I suppose I can tell it to you in Greek?
RILEY: No, it's one of the regrets of my life that I have no Greek.
DIXON: Well then perhaps Latin will suffice.
RILEY: I regret that whilst I studied it at school, my Latin is very rusty.
DIXON: Well then, there's no point in telling you the joke.
One area of Dixon's life which has come as a considerable revelation to me is his public service during the war, as chair of the regulatory agencies supervising wool and shipping and then as our representative in Washington with the title "Minister" - only the representative of the United Kingdom, representing the whole British Empire, could be called "Ambassador". Dixon had access at a level and of an intensity that no Australian has ever had since. It is clear that his capacity for balanced judgment came to be much appreciated by the most powerful men in Washington. No doubt in the absence of conversation about the classics or the law, Dixon's appeal lay partly in what would appear to others as his refusal to engage in small talk.
The closest of these relationships were with men like Dean Acheson, who shared with him a profound anglophilia. They were not representative of the true focus of power in Washington. Although his achievements were many, and his contribution of the highest order, there is a sense of missed opportunity particularly for the long term.
He, like many others including, for example, Churchill and Menzies, continued to believe that the British Empire could emerge from the war in something other than a subordinate position to the American imperium. It was the Anglo Saxon part of the American heritage with which he felt comfortable, not its economic and military power, let alone the social and cultural force of its diversity. England to him, like to many Australians of his generation, was still "home". At late as 1950 he wrote to his daughter that he would have liked to retire to England, but could not.
Perhaps the saddest moment in the book is the observation that Dixon made in another letter to his daughter in 1950 when he found himself in New York. He told her: "I can't think of anything I want to see or do". He accepted that there were numerous concerts, theatres, movies, galleries etc. but he said, "I don't want to go to any of them". New York at that time was the cultural capital of the world. It may have been a bit much to expect Dixon to visit the jazz clubs or to go up to Harlem to listen to some blues, but there was plenty else to do and see. On a subsequent visit he would record that he went to the Metropolitan and saw "some Rembrandts", but that he had somehow "missed the merit" of the Van Gough's at the Museum of Modern Art, a place which he regarded as replete with "ugly things".
To some degree Dixon's depth came at the expense of breadth.
All lawyers will relish the further revelation of the internal workings of the High Court. That Dixon and others wrote many judgments for the lazy Sir George Rich is well known. However, until this book, I was not aware that, on one occasion, Rich's judgment had been written by the judge from whom the appeal was brought.
It is also well known - particularly from the Latham papers - that relationships amongst the judges had been bad and often poisonous. The book provides us with rich new detail on this account.
The contrast between the fractiousness of the court under the inveterate intriguer Latham and the relative harmony under the leadership of Dixon, could not be more acute.
Latham, of course, had to deal with the impossibly rude Starke. At Issac Isaacs' funeral, it is said, Starke turned to Rich, already 80, and said "George, are you sure it's worth your while going home?"
With great skill Phillip Ayres has presented the life of an extraordinary Australian. Dixon's legal legacy will long endure. The biography also reveals the respects in which Dixon was a product of a time which has passed. An Australia which has cut its umbilical cord, no longer has, and can no longer afford to have, the prejudices of an earlier time, prejudices which the author does not seek to hide.
Dixon was a strong supporter of the White Australia Policy and regarded India as a future threat; he abhorred the idea of African judges sitting on the Privy Council; when the late Queen Mother expressed her own distaste for "knifey people" like Italians and Greeks, Dixon defended only the Greeks because of what they had done for Australian troops in World War II; he dismissed Australian Aborigines as belonging to the "stone age".
Phillip Ayres is at pains to point out that Dixon's attitude to Jews was based on "cultural preferences" rather than a biologically based racism. Dixon regarded many Jews as displaying "something Oriental or Levantine, a tendency to the florid and slightly colourful". As you see.
Dixon found it difficult to accept that the best doctors to treat his son's condition were German Jews rather than just Germans. He regarded Isaiah Berlin, who was in Washington during the war, as a smart alec. He was concerned about the "Americanisation" of Melbourne Law School by Zelman Cowen and, no doubt, of Sydney Law School by Julius Stone.
I have found particularly revealing the two occasions on which Phillip Ayres reports Dixon's particular choice of an annotation to express his view that a person was lying. The annotation was "Credate Judaeus Appella" a quote from Horace's Satires. The full line adds the words "non ego", but a classicist would know the additional words "not I", so they went without saying. Dixon's choice of expressing a proposition roughly equivalent to "and pigs might fly", in the words "the Jew Appella may believe this, but I don't", reflects an attitude commonly held in genteel circles of the time.
Dixon was a member and President of clubs which did not admit Jews but, of course, some of his friends were Jewish. Sir John Monash, who - according to the conventional stereotype - neither looked nor talked like a "Jew", was a member of the same walking club as Dixon. Eventually the stereotype would change. After the Israeli army swept down to the Suez Canal in 1956, Dixon would confide: "Nor did I ever expect to find myself in such full sympathy with the Jews in Palestine".
A set of beliefs so firmly held, and so widespread amongst the elite of that era, could not but be reflected in judgments. I am reminded particularly of the case of Browning v The Water Conservation & Irrigation Commission of NSW. An Italian-born Australian, who had been naturalised in 1934, sought to acquire a water licence by assignment in 1946. The Commission had a firm policy that, save in special circumstances, it would not approve transfers to Italians for three reasons: first, Italians had recently been enemy aliens, secondly, they were not good farmers under irrigation methods and, thirdly, it was undesirable to permit further aggregation of Italians in the irrigation area. Each of these criteria was quite explicit.
In the Full Court of the Supreme Court, Sir Frederick Jordan dismissed these considerations as irrelevant, or in Sir Frederick's blunt words it was "no business" of theirs. The appeal to the High Court was allowed, unanimously.
Not only were these considerations accepted to be relevant, but some of their Honours, particularly Chief Justice Latham indicated approval of the policy. Dixon contented himself with the observation that issues of "suitability and desirability" were matters for the Commission.
This was the low point of High Court jurisprudence. It may be regretted that the editors of the recently published Oxford Companion to the High Court of Australia did not interrupt their triumphalist tone to include a section on the High Court's worst judgments. This case would feature prominently on any such list. It should serve as an example of the necessity for judges to be aware of the possibility of unconscious prejudice.
Browning bothered me when I first read it when studying administrative law at the University of Sydney. As best I recall, it was the only Dixon judgment that had such an effect. For a lawyer who attended law school in the mid to late 60s, as I did, the then recent judgments we studied emanated from one of the great common law benches of history. Led by Dixon, and including Kitto, Fullagar and Windeyer, the judgments of the Court were and are an inspiration.
The force of Dixon's reasoning and power of expression was one of the most important influences formulating my own approach to the law. It remains such. This biography, which is launched in Sydney today, enables lawyers of my generation to better understand the man who had the most profound intellectual influence on us. It is a fitting testament to an exceptional Australian.
1 Phillip Ayres Owen Dixon: A Biography, Miejunyah Press, 2003, at p106-107.
2 Ayres 110-111.
3 Ayres 277.
4 Parker v The Queen (1963) 111 CLR 610 at 632.
5 Ayres at 276.
6 Ayres at 216.
7 Ayres at 216-217.
8 Ayres at 250.
9 Ayres 240.
10 Ayres 191.
11 See Clem Lloyd "Not Peace But a Sword! - The High Court under J.G. Latham" (1987) 11 Adel. L Rev 175.
12 Ayres at 211 and 269.
13 Ayres at 273 and 364 fn 70..
14 Ayres at 266-267.
15 Ayres at 161.
16 Ayres at 103.
17 Ayres at 105.
18 Ayres at 338 fn 78.
19 Ayres 270.
20 Ayres at 190 and 344 fn 43.
21 Ayres at 54.
22 Ayres 359 fn 73.
23 See Browning v The Water Conservation & Irrigation Commission (1947) 47 SR (NSW) 395 esp at 400.
24 See Water Conservation & Irrigation Commission of NSW v Browning (1947) 74 CLR 492 esp at 496-497.
25 Ibid at 505-506.
26 Justice Keith Mason "Unconscious Judicial Prejudice" (2001) 75 ALJ 626.