Parachuting in: War and Extra-Judicial Activity by High Court Judges
| Date | 01 September 2010 |
| DOI | 10.22145/flr.38.3.10 |
| Published date | 01 September 2010 |
| Subject Matter | Article |
PARACHUTING IN: WAR AND EXTRA-JUDICIAL
ACTIVITY BY HIGH COURT JUDGES
Fiona Wheeler*
I INTRODUCTION
Reflecting on the involvement of High Court judges in extra-judicial activity, former
Chief Justice Murray Gleeson recently observed that '[w]ar seems to create special
cases'.1 The histor ical record confirms this a ssessment. While High Court judges have,
in peacetime, periodically engaged in government work outside the courtroom, most
instances of extra-judicial ser vice by our top judges have occurred duri ng war. Thus, it
is only during World War I that members of the Court have co nducted Royal
Commissions. In 1915, Justice George Rich inquired into the controversy — long
forgotten today, but a source of much public concern at the time — over conditions at
the Liverpool Military Camp, nea r Sydney.2 More surprisingly, in 1918 — only months
after the Australian people had, for the second time in little over a year, rejected
conscription at re ferendum — Chief Justice Sir Samuel Griffith inquired into the
recruitment levels needed to sustain the Austra lian Imperial Force.3 By contrast,
between the wars, the Court received many requests from the Commonwealth
Government for a judge to serve as Royal Commissioner. These requests were
uniformly refused.4
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* ANU College of Law, ANU. This paper was written while I was an Honorary Harold
White Fellow, National Library of Australia. I would like to thank the Library and its staff
for their generous support. I am particularly indebted to Gr aeme Powell for his help in
locating material on Sir John Latham. I would also like to thank Professor Michael Coper,
Sir Anthony Mason and Professor John Williams for their comments on an earlier draft as
well as Professor Geoffrey Lindell and the anonymous r eferee. In these footnotes, 'NLA'
refers to the National Library of Australia and 'NAA' to the National Archives of Australia.
1 Chief Justice Murray Gleeson, 'The Right to an Independent Judiciary' (2006) 16
Commonwealth Judicial Journal 6, 14.
2 Commonwealth, Royal Commission into Liverpool Military Camp, New South Wales,
Report (1915).
3 Commonwealth, Royal Commission on the War — Australian Imperial Force, Report
(1918).
4 J M Bennett, Keystone of the Federal Arch (1980) 44–5; Graham Fricke, 'Th e Knox Court:
Exposition Unnecessary' (1999) 27 Federal Law Review 121, 127–8. See also J D Holmes,
'Royal Commissions' (1955) 29 Australian Law Journal 253, 268, 272. In 1954, Sir Owen Dixon
declined a request from Prime Minister Menzies to serve on the Petrov Royal Commission:
Philip Ayres, Owen Dixon (2003) 243–4.
486 Federal Law Review Volume 38
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During World War II, the Court's extra-judicial contribution to the war effort was
even greater. As is well-known, both Chief Justice Sir John Latham and Justice Sir
Owen Dixon took leave from the Court to serve as Australia's Ministers to Japan and
the United States respectively.5 Dixon a lso headed a number of government boards
and committees concerned with wartime is sues — most prominently, the Central Wool
Committee — a form of extra-judicial service also undertaken, though to a lesser
extent, by Latham.6 Justice Edward McTiernan joined them in venturing outside the
courtroom, conducting a Commonwealth inquiry in 1943 into allegations of
misconduct in the testing of materials used in production of the Beaufort Bomber.
Prime Minister Curtin placed a censorship ban on reporting of the McTiernan inquiry
— it was feared that publicity 'would cause consternation' — and the findings were not
made public.7 It appears, however, that McTiernan found evidence that an empl oyee at
the Department of Aircraft Production in Sydney had falsified laboratory records.8
Justice Sir William Webb also undertook war-related work, serv ing between 1946–48 as
President of the International Military Tribunal for the Far East in Tokyo. 9
There are at least three respects in which these cases, particularly those f rom 1939–
45, are indeed 'special' as Gleeson suggests. First, the sheer volume of extra-judicial
work undertake n by mem bers of the High Court during World War II represents an
exceptional commitment of judicial resources, especially from a small apex court, to
outside tasks.10 Dixon, for example, was absent from the Court as Minister to the
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5 These periods of 'leave of absence ' from the Court are noted in 64 CLR iv (Latham) and 65
CLR iv (Dixon).
6 Apart from the Central Wool Committee, Dixon headed the Australian Coastal Shipping
Control Board, the Commonwealth Marine War Risks Insurance Board, the
Commonwealth Salvage Board a nd the Allied Consultative Shipping Council: see Ayres,
above n 4, ch 7. Latham headed the Advisory Committee on the Welfare and Repatriation
of Australian Prisoners-of-War and Internees in Japanese Hands. This Committee was
established by Minister for External Affairs, Dr H V Evatt, in 1944 and made
recommendations to him and his Department. Evatt decreed that the Committee should
have 'no publicity': Committee Minutes, 14 September 1944: Papers of Sir John Latham,
NLA MS 1009/78/9.
7 NAA: SP109/3, 301/16 (Air Services and Aircraft. Inquiry Conducted by Hon Justice
McTiernan into Alleged Falsification of Records in Connection w ith Aircraft Production).
The NAA file suggests the censors were aware of the McTiernan inquiry prior to Curtin's
intervention and had already acted to impose a censorship order the night before the Prime
Minister's direction. McTiernan's appointment to conduct a government inquiry from 1
March to 10 July 1943 was, however, noted in 66 CLR iv. See also Justice Michael Kirby, 'Sir
Edward McTiernan: A Centenary Reflection' (1991) 20 Federal Law Review 165, 177–8.
8 The employee was later prosecuted in closed court for fraud, but acquitted. See NAA:
A2700, 939 (Summary of the Report and Findings of Mr Justice McTiernan as to the Affairs
of the Pyrmont Laboratory).
9 See Dayle Smith, 'Commentary on "Sir William Webb – Hobbesian Jurist"' in Michael White
and Aladin Rahemtula (eds), Queensland Judges on the High Court (2003) 151. While it can be
said that Webb's role in Tokyo was judicial (rather than non -judicial) in nature, it is dealt
with in this essay on the basis that it was off-court war-related work tha t did not in volve
the exercise of conventional domestic judicial authority.
10 It can be argued that the High Court in this period was not truly an ' apex' court since its
decisions in non-constitutional matters were still subject to appeal to the Privy Council.
However, it is submitted that the Court's role as the final court of appeal in most
constitutional cases and as the highest court located in Australia makes the 'top' court
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