CONSTITUTION - HIGH COURT AND SAWER'S POINTS
1949, a question in the Constitutional Law Final Honours II paper at the
University of Melbourne drew the attention of students to an exchange
during the State Banking Case (City of Melbourne vs Commonwealth)
74CLR31, when counsel had observed that Dixon J did not sit on the
Uniform Tax Case (South Australia vs The Commonwealth) 65CLR 373 and
Starke J had interjected
“No, worse luck”. Students were invited to comment on the
implications of this remark.
When the Chief Justice, Sir John Latham, who
had delivered the majority judgement, read the question, he drew the
implication that his Court, if not himself, was being held up to
ridicule and contempt. In response to a letter of protest, the
Chancellor, Sir Charles Lowe, agreed that the phrasing was “grossly
improper”, and took the matter up with the Dean of the Faculty,
Professor George Paton, telling him on the phone that the question was
Paton replied that the examination had been
set by Associate Professor Geoffrey Sawer, currently on leave in the
United States, before explaining that students would have interpreted
the question in terms of the intensive lecturing that Sawer had devoted
to Dixon’s “doctrine of the implied immunity of instrumentalities”
and, hence, would have perceived no “disrespect”.
As Christmas neared, Latham regained his
composure to deny any personal concern, beyond maintaining the quality
of legal education.
Paton let six weeks pass before sending a
handwritten apology to Latham, reporting that his had not been the only
outrage expressed. The large number of complaints meant that there was
“something wrong with it”. Paton trusted that a single incident
would not deprive the Faculty of the advice and assistance of the
retiring Chief Justice. As further consolation, he observed “At least
this has been achieved – further papers will be carefully scrutinised
from every angle”.
Latham’s successor, and the indirect cause
of the contretemps, Sir Owen Dixon, was of a different temper, as is
revealed in his note from the High Court to Latham after he had stepped
Merri Creek [??CLR???] will be delivered this
morning … The case is distinguished by unanimity, for it appears to
involve metaphysics and not law, and perhaps that is the reason. As to
“The Natural History Nonsense”, there is enough of it here. Please
send the book to my chambers.
by then was Professor at the Australian National University where he
showed himself a slow learner by trying to strike up a correspondence
with Latham on the dark corners of the Constitution. EG Latham cut him
off with the thought that the tasks of governing were difficult enough.
[The above is drawn from the Latham Papers, National Library of Australia, MS1009.]