Owen Dixon - Judicial Career

Judicial Career

In 1926, Dixon was briefly made an Acting Judge of the Supreme Court of Victoria, and although he was considered to be an excellent judge, he did not enjoy the experience. In 1929, Dixon was appointed to the bench of the High Court, by his friend John Latham, who was then the Commonwealth Attorney-General. During his time on the bench, Dixon also wrote several judgements on behalf of his colleague, Sir George Rich. The propriety of one judge writing a judgment under the name of another has never been determined. Dixon rapidly established himself as a dominant intellectual force on the High Court bench, and many of his judgments from the 1930s and 1940s are still regarded as classic statements of the common law. Examples are McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 (terms contracts), Brunker v Perpetual Trustee Company Ltd (1937) 57 CLR 555 (gifts, property), Yerkey v Jones (1939) 63 CLR 649 (Equity) and Penfolds Wines v Elliott (1946) 74 CLR 204 (personal property torts). Dixon also showed that behind his formidable command of legal principle he had a sense of fairness, such as in his joint judgment in Tuckiar v R (1934) 52 CLR 335, where the Court quashed the murder conviction of an aboriginal man who had not been given a fair trial.

Dixon had reservations about the appointment of Labor politicians Dr Herbert Vere Evatt and Sir Edward McTiernan by the Government of James Scullin in late 1930 (and is said to have considered resigning in protest). He nevertheless forced himself to get along with all his colleagues, and at one point acted as a go between them and the conservative judge Sir Hayden Starke, who refused to have any direct communication with them. He and Evatt wrote a number of joint judgments prior to Evatt's resignation in 1940 to return to politics.

From 1942 to 1944, Dixon took leave from his judicial duties while he served as Australia’s Minister (Ambassador) to the United States, at the request of the then Prime Minister John Curtin. On 27 May 1950, Dixon was invited by the United Nations to act as their official mediator between the governments of India and Pakistan over the disputed territory of Kashmir. His role was to continue conciliation talks between the two nations in the lead up to a proposed plebiscite to be put to the residents of Kashmir. His role as mediator ended in October 1950, although he had left India in September frustrated with what he saw as an inability of the respective governments to negotiate.

At about this period, Dixon was in the majority in important Constitutional cases which declared unconstitutional pet projects of successive Labor and Liberal Governments, namely the Banks Nationalisation case (1948) 76 CLR 1 and the Communist Party case (1951) 83 CLR 1. In the former, he considered that many of the operative provisions of the Chifley Government's Banking Act 1947 (which sought to nationalise Australia's banks) were beyond the scope of the constitutional powers of the Australian Commonwealth Parliament. In the latter case he considered that the Communist Party Dissolution Act 1950 of the Liberal Government led by his old friend Robert Menzies (which sought to ban the Australian Communist Party) was 'ultra vires' (beyond power) for the Commonwealth Parliament, and could not be supported by any head of Commonwealth legislative power.

In 1951, Dixon was appointed a member of the Privy Council, the English judicial organ which, at that stage, was the final court of appeal in Australian legal matters. However, Dixon never took up his seat on that Court. In fact, Dixon's disdain for the Privy Council is well documented, particularly in Phillip Ayres' biography, titled Owen Dixon. Here, it is revealed that Dixon approached then-Prime Minister Robert Menzies on at least two occasions, urging a restriction of appeals to the Privy Council. In Dixon's view, the council had a limited understanding of Australian Constitutional law, allowed appeals on trivial matters, and published confusing judgments. His words to Menzies were "I do not think they have a clue."

In 1952, Dixon was appointed Chief Justice of the High Court by his friend Robert Menzies, who remained Prime Minister throughout Dixon’s tenure in the position. This marked the beginning of a period described by Lord Denning as the "golden age" of the High Court. Complemented by the work of Justices Kitto, Fullagar and Windeyer, Dixon led what NSW Chief Justice Jim Spigelman has described as "one of the great common law benches of history." It may come as a surprise, then, that this period was one of relative stability in the area of Australian Constitutional Law. This was in part due to Dixon's leadership of his Court, which resulted in a higher proportion of joint judgments than before or since. The most notable decisions from this period include R v Kirby; ex parte Boilermakers' Society of Australia (Boilermakers' Case) (1956) 94 CLR 254 and Victoria v Commonwealth (Second Uniform Tax Case) (1957)99 CLR 575. As Chief Justice he was also responsible for a number of seminal decisions in areas as diverse as contract law (e.g. Masters v Cameron (1957) 91 CLR 353) and criminal law and precedent (Parker v R (1963) 111 CLR 610). In Tait v R (1962) 108 CLR 620, he dramatically intervened to prevent the hanging of a mentally ill murderer before his appeal to the High Court could be heard.

In 1952, and again in 1955, Dixon was called upon by the Governor of Victoria to give advice when the upper house of the Parliament of that State refused to pass supply bills. Dixon advised the Governor of his powers in such a situation. This precedent was followed after Dixon's death, when then-Governor-General Sir John Kerr sought advice from Dixon's successor Sir Garfield Barwick CJ before controversially dismissing the Labor Government under Gough Whitlam in 1975.