CONSTITUTION

In 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 “quite indefensible”.

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 down:

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.

Sawer 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.]