Barwick by David Marr

Sir Samuel Griffith was chief justice of the High Court of Australia for sixteen years, from October 1903 to October 1919; but he had effectively retired in July 1919. Sir John Latham was chief justice for sixteen and a half years, from October 1935 to April 1952; but he had effectively retired in May 1951. Thus, Sir Garfield Barwick, who last month completed his sixteenth year as chief justice, has already established a record for active service in the position; if he remains in office until 24 October this year, he will have broken even Lathams formal record. The holder of such a record term of office as chief justice would, on that ground alone, be assured of a unique place in Australian legal history; but in Barwick’s case, the years as chief justice are only a climax – perhaps even an anti-climax – to an extraordinary career. In the late 1940s and early 1950s, he dominated the Australian legal profession in a way that has never been equalled; in the late 1950s and early 1960s, his forceful and controversial role as Robert Menzies’ attorney-general and minister for external affairs left a permanent imprint on Australian legislation and foreign policy. Even before his formal entry into politics, Barwick had decisively influenced the course of Australian history. He owed his pre-eminence at the bar not only to his remarkable talent for tough and ingenious advocacy, but to the mixture of drive and good fortune that gave him the crucial role in a series of constitutional cases which permanently changed the direction of federal party platforms, State economies, and party-political fortunes. His overt role in litigation like the 1949 Banking Case and the 1954 Hughes & Vale Case, is only part of this story; Marr’s biography assigns him a covert role which was equally influential. One thesis of the book is that ‘influential senior counsel giving private advice’ may shape the development of political crises as powerfully as the public activities of parliaments and courts, and this thesis has two aspects. One, sustained partly by direct assertion and partly by innuendo, is that all the great constitutional cases of the postwar period were stage-managed by a group of senior counsel retained initially by the airlines and then by the private banks; and that this group not only developed legal arguments and forensic strategies for litigation as it arose, but took the initiative in marshalling a logical sequence of cases and an appropriate choice of plaintiffs, in a kind of political ambulance-chasing. In this thesis, the 1945 litigation in Gratwick v Johnson was not merely a fortuitous curtain-raiser to that rear’s Airlines Case: Barwick ‘read about Elsie Johnson in the newspaper’, rang the airlines’ solicitor, and ‘told him we should get behind the girl’. The other aspect of power-behind-the&shy;scenes is that, from the Banking Case onwards, Barwick became an intimate confidant and close adviser of Menzies, shaping by private written advice and person consultation the detailed constitutional strategies underlying the Communist Party Dissolution Bill and the 1951 double dissolution. Barwick ‘put his skills as an advocate at the service of the new government’ – arguing the Communist Party Case (unsuccessfully) in the High Court; intervening at a crucial stage in the Communist Party referendum with a published opinion designed to refute Evatt’s criticism of the proposal; and making a late but dramatic entry on behalf of ASIO (and at Menzies’ instance) to ‘rescue’ the Petrov Royal Commission by turning the attack upon Evatt. But, for Marr, all this was only the public face of continuing private involvement. How much of this reflected (or formed) Barwick’s own political views? In 1957 he ‘had no real interest in politics and was not a member of the Liberal Party’; in 1958 when Menzies finally persuaded him to enter Parliament, he ‘did not see himself as a party politician’, but rather ‘as a great man coming to the service of his country’. In the early 1930s he had been passionately involved in politics, on the Labor side – supporting Jack Lang in the struggles that led to Lang’s dismissal from office by the Governor, Sir Philip Game; handing out pamphlets on Lang’s behalf; and installing in his chambers a bust of Lang with the motto ‘Lang Was Right’ on its base. When, and how, did he change? At one stage Marr suggests that the change occurred in the 1930s; that as Barwick prospered at the bar, he ‘drifted away’ from Labor, just as he drifted away from active involvement in the Methodist Church. But a better reading might be that the decisive shift came later, after the great constitutional battles of the post-war years, and as a result of those battles. On this view, Barwick ‘s great forensic victories would not reflect any pre-existing ideological commitment of his own: he was simply (like any ambitious advocate, or any good professional), accepting the briefs that came. The ideologies he came to espouse arose from his clients’ pragmatic needs: like many good advocates, Barwick convinced himself by his own arguments. Sometimes Marr comes close to this reading. But he tends to merge it in another thesis, ascribing to Barwick a stubborn pride that never forgives or forgets, storing up old defeats and embarrassments for vindication or vengeance years later. On this view, Barwick carried with him from the bar into politics, and from politics to the High Court, a slate of ‘unfinished business’ arising from earlier failures or reverses or qualified success: tax avoidance bankruptcy, communism, sedition, and freedom of interstate trade. This is a useful narrative device and perhaps an effective reminder of elements of stubbornness and vanity in Barwick’s personal character. Whether it is more remains doubtful. One could, of course, argue that any attempt to pinpoint a crucial moment of change in Barwick’s allegiances is simply misplaced. The ideological contradictions that continue to shape his judgments might mean only that he is, and always has been, an ideological mixture – with earthly proletarian underdog views, and defence of the prerogatives of power and wealth in uneasy symbiosis. (Such contradictions are, after all, by no means unusual in successful lawyers who have struggled up from working class origins.) Or it might be that Barwick’s ideological core has remained unchanged because he has no ideological core: that his responses to issues depend on a cluster of vehement attitudes, with no underlying philosophical principles to give them coherence, or even to suggest to his mind that there might be a need for coherence. The High Court of his boyhood was the Griffith Court, of which Sir Owen Dixon later wrote: ‘The real weakness of powerful and confident minds strengthened by dialectical gifts, and at the same time accustomed to the responsibility of decision, lies in the tendency to work their way to a conclusion rather than to stop to inquire.’ He might have been speaking of Barwick. Though Marr does not develop this view, there is much in his book to support it. As a novice on the political hustings in 1958, Barwick seemed strangely unable to formulate a coherent political credo. As a student in 1926, ‘his flair was for solving practical legal problems, not dealing in academic abstractions’. At law school, the legendary Professor John Peden had focused young minds on ‘technical skill’, on ‘assembling and reassembling axioms like bits and pieces of judicial Meccano’; but even the Peden law school had speculative philosophical over-tones to which Barwick was unresponsive. Energetic in argument and zestful in concrete controversy, he seems simply to lack the temperament for patient, contemplative reflection. As a student in the Men’s Christian Union, he believed devoutly in the value of prayer - but in ‘efficient prayer’. In the 1970s, he has often called for a spiritual and artistic corrective to Australian materialism. It did not occur to him, writes Marr, that the ‘vacuum of spirit into which he was staring might be his own’. Despite these enigmas, Marr’s biography makes it unmistakably clear that Barwick emerged from the 1950s as a committed Cold War warrior; and that this commitment repeatedly warped the otherwise great innovative achievements of his career in the Ministry. As Minister for External Affairs, he responded to the formation of the Malaysian federation (and to Indonesian ‘Confrontation ‘) with immense diplomatic skill, and with an adaptive sensitivity to South-east Asian needs which led to a lasting readjustment of Australian foreign policy. He did so with great personal courage, energy and independence - perhaps at the cost of his political future. Yet he also committed Australia to the US base at North West Cape, and to involvement in the Vietnam war. As to North West Cape he at least fought hard for adequate Australian control; as to Vietnam - at a time of American ‘doubts and reservations’ - he committed Australia to a ‘rigidly orthodox’ and ‘grossly simplified’ anti-communist line. ‘The con&shy;trast between Barwick’s Vietnam and Indonesian policies was remarkable: the one closed and doctrinaire, the other open&shy;minded and flexible. Marr explains Barwick ‘s Vietnam role by arguing that, yet again, he was merely playing the good advocate. The explanation is at once too ingenious, and too easy. As attorney-general, Barwick displayed a similar contradiction. Plans for a national divorce bill predated his entry into politics; but he threw himself into this inherited task with typical skill and energy, and with obvious personal commitment. Plans for a national trade practices bill were his alone. He fought for them tenaciously, and with genuine legislative vision; and although his departure from politics left the problem unresolved, it was one that (thanks to Barwick’s efforts) could no longer be ignored. In both these areas, Marr suggests that later legislation has swept Barwick ‘s achievements away, and that Barwick may think so too. But the truth is that, in both areas, Barwick took the first essential steps that made later developments possible. Yet the drastic 1960 expansion of those parts of the Commonwealth Crimes Act concerned with security, sabotage and official secrets. was also Barwick’s ‘baby’; and so was the 1960 statute legitimating the practice of telephone tapping by ASIO – which in 1978 was held (in a High Court led by Barwick) to override stale legislation restricting telephone-tapping. Marr may be wrong to see these laws as Barwick’s chief ‘legislative monument’; he is right to see them as a continuing blot on Barwick’s political record. Barwick, as attorney-general, consistently sought to protect and expand the powers of ASIO; to use it specifically as a weapon in the fight against communism; to extend its activities into new realms of harassment of supposed ‘communist fronts’; and to strengthen its relationship with himself, as Attorney General, at the expense of its responsibility to the Prime Minister. In this context the 1960 ‘Staples incident’ still makes chilling reading. Staples, then a young barrister in the Attorney General’s Department, was recommended for promotion. A security check disclosed his past membership of the Communist Party, overlooked when he joined the Department. (Staples had left the Communist Party in 1956.) Barwick, instead of coming to his defence, dismissed him and responded to parliamentary challenge by a disgraceful innuendo that Staples’ expulsion from the Party had been staged to enable him to ‘do more valuable work under cover’. There are other, more human, glimpses of Barwick – as a young law clerk unstintingly helping friends from other solicitors’ offices with problems they could not solve; at the pinnacle of his success at the bar, defending a solicitor from being struck off the rolls and marking the brief ‘Con amore’; going free of charge to the Privy Council to defend a disputed will because of the human interest involved. (The testator had left a house to his mistress rather than to his widow; Barwick allegedly won for the mistress by exploiting his private knowledge of the marital history of one of the Law Lords.) Above all, as the freakishly brilliant achiever in an otherwise undistinguished family, Barwick emerges as an extraordinarily conscientious brother, father and son. The recent allegations concerning his family company, Mundroola, and his own supposed conflicts of interest arising from its investments, came only after Marr’s book was in press; but it nevertheless puts them in context. The bankruptcy of his father’s printing business, set up out of Barwick’s first earnings; his own bankruptcy in 1930, arising from his efforts to salvage the garage business in which he had tried to establish his brother Douglas; the use of Mundroola in 1946 to bail out the refrigerator business of his brother Russell (after troubles in which Marr finds the origins of Barwick’s antipathy to the trade unions); the ludicrous and sinister allegations against his brother Douglas in the Liquor Royal Commission of 1951 – all the public embarrassments of Barwick’s life have arisen from his endless solicitude for the financial security of his family. To come to the inevitable pun, this book is a marred success. It is marred because, although it reflects four years of research, its final production to coincide with the opening of the new High Court has evidently been a rushed job. Spelling and typographical errors, clumsy syntactic logjams, footnotes that are sometimes careless and often uninformative - these and other signs of haste are blemishes on a considerable literary and scholarly achievement. It is marred because it tries to juggle too many narrative strands. A book about Barwick must be a personal biographical record; a history of Australian society and politics since Federation; an explanation in layman’s language of abstruse legal issues and arguments; and a history of the High Court. At best, as Marr cuts from one strand to another, he achieves almost cinematic effects of impressionist montage and dramatic or ironic juxtaposition; at worst, he is driven to sudden transitions, and to unexplained appearances and disappearances of minor players (especially instructing solicitors). Above all, the book is marred because it has largely had to be written without help from its subject. Marr explains in an afterword that be bad one interview with Barwick in 1978 and had hoped for more. ‘But Sir Garfield’s early scepticism later turned to disapproval, and there were no more interviews.’ The first interview yielded a set of Barwick’s after-dinner speeches, and throughout the book Marr makes resourceful and imaginative use of these. For the rest, he has often had to rely upon drawing together information already in the public domain. At times the result is little more than a synthesis of public events, with Barwick’s role only fleetingly sketched in, or fleshed out by imaginative reconstruction. For all this, the first 200 pages are vivid, lucid and illuminating – rich not only in historical and personal insight, but in literary freshness and pleasure. In particular, Marr’s explications of litigious labyrinths mostly combine journalistic clarity with an instinct for essentials that may be illuminating even for lawyers. His attempts to lighten the case-law burden by humour are less successful; and he sometimes tends to overdramatise conflicts of bench and bar, or of judge and judge. But even this brings out undertones which might otherwise be overlooked. Moreover, this part of the book is not marred by either or the obvious but opposite pitfalls into which it might have fallen. It is not the merely complacent and vacuous hagiography to which judicial biographies have often descended; nor is it merely a scurrilous ride on the Barwick-bashing bandwagon which began to roll in the aftermath of November 1975. There are signs of genuine admiration in Marr’s approach to his subject, and signs of exasperation; but on the whole he keeps his own responses at arm’s length, confining himself to recording events and letting them speak for themselves. Barwick first won widespread public attention by arguing that a painting by William Dobell was a ‘caricature, not a ‘portrait’; he may well say the same of this book. Other readers will accept it as a portrait - or, at least, as an invaluable preparatory study. The last 100 pages - dealing with Barwick’s career as chief justice – are less satisfying. Some forty of these pages are devoted entirely to Barwick’s role in the 1975 constitutional crisis; and much of the rest is devoted to setting the legal scene for that crisis. The space that remains is simply not adequate to deal with sixteen years of fundamental High Court change; and Marr does not seriously try. His thesis about the ‘unfinished business’ which Barwick brought with him to the bench becomes his own selective criterion. He follows up Barwick’s judicial approaches to areas like tax avoidance and the freedom of interstate trade ‘but even here his accounts of the cases are sketchy and unsatisfying. He gives the main outlines of Barwick ‘s judgments in the flurry of constitutional cases arising from the 1974 double dissolution, but only to highlight the inconsistencies which Barwick was unwittingly storing up for his own tater position: ‘When the crisis of November 1975 came Barwick was to find the guns were pointing in the wrong direction.’ Huge tracts of constitutional and other important litigation are simply left on one side. When Barwick was sworn in as Chief Justice he spoke at length of his concern for law’s impact on ‘the life and the happiness of the ordinary man’, on ‘the fabric of the daily lives of our fellow citizens’. Of this theme in Barwick’s judgments Marr gives barely a hint. He refers to statistical studies of my own to show that over the years the theme bas become so muted as to be almost inaudible: for instance, by a steady shift of sympathy away from appellants in criminal cases, and (even more strongly) away from plaintiffs in personal injury cases. But in Marr’s book this shift of sympathy needed living illustration in detail; a summary of a schematic statistical profile is not enough. Initially, Barwick ‘s greatest potential for creative judicial leadership lay simply in his awareness that judicial work can be creative: that the High Court has the power (and duty) to fashion decisions ‘appropriate to the current times in Australia’. On the bench, he expressed his awareness most strongly in MLC Assurance v Evatt; off the bench, he expressed it more fully in a public lecture in Israel. Marr quotes both of these. But he misses their full significance as a key to the triumphs and failures of the High Court under Barwick, and to the contradictory and unpredictable nature of Barwick’s own judicial record. His own Judgments alternate from pragmatic audacity to crabbed legalism of the narrowest kind; his own grasp of opportunities for judicial innovation is limited both by his odd insistence that such opportunities are available only to the High Court, and by his conception of ‘the law’ as something that exists, with Judges as hierophantic expounders of its immanent and immutable truths. The Court, after seeming in the early seventies to move towards fuller acceptance of a frankly creative role, has fallen back into a new mood of caution, a loss of judicial nerve. Barwick himself, just last month, has reaffirmed his earlier views, with a ‘wider area of application’. But he does so now in dissent. These unresolved problems lie at the heart of current uncertainties as to the High Court’s future judicial role. Both the future of the Court itself, and Barwick ‘s place in its history, may depend on their resolution. Marr gives only a sketch of the problem; most of the cases which make it meaningful find no place in his book. As to the constitutional crisis, my own view is that the advice which Barwick gave Kerr was wrong; and that, in addition, he was wrong to give any advice at all. But - perhaps alone among the architects of the 1975 coup - Barwick sincerely believed that what he said and did was correct. Thus there cannot be attached to Barwick the personal moral obloquy that has been attached to Kerr. As usual, Marr’s main concern is not explicitly to sit in judgment, but to record the facts. But to this he adds a search for explanations of why Barwick gave the advice he did and his own novel thesis as to timing. The search for ‘explanations’ pervades the whole book and along the way Marr offers several. One is that, at law school. Barwick was steeped in the constitutional doctrines of A. V. Dicey, and that Dicey, an unreconstructed conservative, had structured his doctrines to maximise the role of ‘monarchical powers’ as a safeguard of national interests, conservatively defined. As a reading of Dicey’s political loyalties, this is entirely accurate, as a reading of his constitutional theories, it is curiously distorted and narrow. (This, of course, is not to deny that Barwick may have understood Dicey in just this distorted sense.) Then there is the fact -strikingly shown by a Barwick-Whitlam parliamentary exchange in December 1960 – that Barwick attached to the office of ‘Chief Justice of Australia’ a mystique of ‘great and vague powers’, including an independent prerogative consti&shy;tutional guardianship not unlike what Kerr claimed for his office. Add to this Barwick s characteristically uninhibited attitude to traditional constraints on judicial involvement in public controversy – illustrated for Marr by intervention in the Clutha affair and driven home by a public lecture at Newcastle September 1975, in which Barwick asserted that a judge who has the time and energy ‘is entitled to exercise these for the community of which he forms part’. Add, too, that for Barwick as for Kerr, his initially cordial relations with Whitlam had been soured by resentment, suspicion, and ‘growing apprehension’. Finally, Barwick’s memories of Sir Philip Game’s dismissal of Lang appear to have taught him not that vice-regal dismissal of an elected chief minister is dangerous, but two quite different lessons: that in such a crisis the viceroy may properly obtain advice from his Chief Justice (Game had done so in NSW); and that when the crisis threatens the money supply, to hope for co-operation from the banks is unrealistic. The hardships of ‘the ordinary man’ in 1932 appear to have haunted Barwick as Whitlam, in turn, began to speak of some kind of voucher which the banks would be asked to accept. In the version which surfaced in the press as part of the prepublicity a week before Marr’s book was published, Barwick’s dread or government ‘IOUs’ and financiers’ exploitation of them took an antisemitic turn: ‘The last time, the Jews made a killing.’ In the book itself, the implication of antisemitism has been discreetly edited out. Understated; and the result will satisfy no one. He should either have quoted chapter and verse or have left it out altogether. Marr never draws these hints together into a set-piece ‘explanation’ of Barwick’s advice to Kerr. It seems probable that, taken together, they still fall short of an ‘explanation’; but it also seems possible to argue that no ‘explanation’ is needed. Roscoe Pound once analysed the components of a legal tradition into rules; principles; conceptions; indeterminate value ‘standards’; techniques; and inherited ideals. (He might have added ‘powers’.) Barwick has always displayed a mastery of rules, techniques and powers; he has always been distinctly less comfortable in his handling of principles, concepts, standards and ideals. This more philosophical and more inspirational dimension of the legal tradition, and especially of Dicey’s view of constitutionalism, was crucial to a proper appraisal of the issues of November 1975. Those who chose to ignore this dimension, or were genuinely unresponsive to it, were inevitably led to reduce the problem to one of ‘rules’ and ‘powers’, and thus to the conclusion that the Prime Minister should be dismissed - not only failing to comprehend the contrary point of view, but failing to comprehend how far their own point of view was also dependent on the shifting sands of ‘convention’ Marr’s other contribution is a novel thesis concerning the riming of Whitlam’s dismissal. He correctly points out that argu&shy;ments for vice-regal intervention based on the mystique of ‘reserve powers’, or of an ‘appeal to the people’, could not justify intervention on November 11, since the ultimate state of crisis which could trigger these powers had not yet been reached. (One might add that such arguments would also not have justified the dismissal of Whitlam: in an ultimate crisis Kerr could have ‘appealed to the people’ by initiating an election without relying on Whitlam’s advice but also without dismissing him – relying on the incoming government to assume retrospective responsibility for the election which it had just won. The political result might have been the same; but Kerr would have acted defensibly.) Marr’s thesis is that Kerr knew in advance that Whitlam would seek a half-Senate election on November 11; decided in advance that he would not accept that solution; and concluded that ‘dismissal would have to follow’ so that Whitlam could not dismiss him. He adopted the Barwick/Ellicott analysis not because it persuaded him, but because it alone could justify his action at that point of time. (Marr rejects any notion of a Kerr-Barwick-Ellicott ‘conspiracy’, and accepts the denials by Barwick and Kerr of any prior contact between them. He suggests that Kerr knew from Phillip Street gossip what Barwick’s advice would be.) Only the Barwick/Ellicott view (that a Prime Minister who cannot secure supply must resign or be dismissed) could justify dismissal on November11. For, on that view, Whitlam’s duty to resign (and hence Kerr’s power to dismiss him) had arisen from the moment the Senate first deferred supply. Not only could Kerr act on November 11, he could have acted on October 16. There is, of course, a fallacy here. Even if failure to secure supply in the Canberra parliamentary system did trigger a duty to resign, such a duty could have been triggered only by a Senate ‘failure to pass’ supply, not by a mere deferral. But this fallacy is Barwick’s, not Marr’s. A flurried attempt at topicality leads the final chapter to errors of fact (the 1979 amendments to the Judiciary Act do not affect’ the Chief Justice’s occasional ‘casting vote’), and to errors of emphasis. The ‘Barwick-bashing’ I mentioned earlier has partly consisted of complaints about the cost of the new High Court building, and (more obscurely) about Barwick’s own enthusiasm for the project. Marr adds his two cents worth, and indeed his two million dollars’ worth. But (except perhaps on aesthetic grounds) these complaints seem misplaced. Marr begins his book with Alfred Deakin ‘s struggle to persuade a recalcitrant Parliament to create (in 1903) the High Court which the Constitution required. The penny-pinching outcome is not recorded: the Court’s opponents (led by Simon Fraser) grudgingly let Deakin have his Court, but reduced the number of judges to three, and stripped them of pension entitlements. The makeshift, hand-me-down accommodation with which the High Court has made do ever since (of which Marr gives some graphic examples) arose from the same petty meanness: for 77 years we have run our highest court on the cheap. For Barwick to reverse this long policy -and to wring the final concessions from none; other than Simon Fraser’s grandson - is a genuine achievement. If Marr’s book had to be reduced to a media event to coincide with the opening of the new building, he could have joined his opening and closing chapters in a full circle, with Deakin victorious at last. In short, after all its great achievements, Marr’s book tends to peter out in a jumble of squalid and petty complaints. But even this makes it a fitting mirror of Barwick’s own career.

A. R. Blackshield

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