Appointments that might have been. Many have been considered for—even promised—appointment to the High Court, but not appointed. Who some of the candidates were, and why they were not appointed, reveals the influence on the selection process not only of ‘merit’, but also of politics, state of origin, friendships, and the views of sitting Justices, especially Chief Justices.
Given the paucity of records, the variable reliability of sources, and the inherent difficulty of researching events that did not happen, it is impossible to provide a comprehensive account; but the following canvasses instances of non-appointment for which reasonable evidence exists.
On 24 August 1903, Attorney-General Alfred Deakin wrote that he had always hoped to see five Justices on the inaugural Bench and had wanted Andrew Inglis Clark to be one of them. Josiah Symon was also on Deakin’s list of appropriate appointees had five positions been available, but Parliament reduced the number of positions to three. Deakin was unsure whether Barton would relinquish the Prime Ministership to take the third position, so on 27 August Deakin wrote to Inglis Clark to determine whether Inglis Clark would accept a puisne Justiceship if offered it. Inglis Clark replied affirmatively, but Barton decided to take a seat on the High Court after all.
There had been pressure on Barton to appoint himself Chief Justice, but after consulting his friends, especially O’Connor (who also expected the Chief Justiceship, according to Chief Justice of SA, Samuel Way), Barton agreed that Griffith would be Chief Justice, with himself and O’Connor as puisne Justices. Isaacs, who was to join the Bench in 1906, wrote: ‘I am sorry Barton took a puisne Justiceship. He should have been Chief or nothing and ought to have been Chief … I should have preferred O’Connor after Barton.’
According to Way, Symon and fellow South Australian John Downer were ‘very angry’ about not receiving a seat. Leader of the South Australian Bar and Chairman of the Judiciary Committee at the 1897–98 Federal Convention, Symon had probably hoped for the Chief Justiceship. South Australian politician and judge, James Boucaut, wrote to Griffith in 1901 about the position: ‘I fancy Sir Josiah Symon is playing for it.’ Symon was encouraged by his supporters who believed he would get the post, and he probably would have had a good chance, according to Sidney and Beatrice Webb in their Australian Diary 1898, ‘were he not in one of the smaller Colonies’.
According to the Argus, when the Bench was increased to five in 1906, Ministers chose from ‘Mr Isaacs, Mr Higgins, Sir Josiah Symon, Mr Justice Cussen, of Victoria, and Mr Justice Inglis Clark, of Tasmania, practically in that order’. According to John Gordon, many in SA wanted Symon appointed so that, among other things, SA would be ‘represented’ on the Bench. On 29 August, South Australian barrister and later Commonwealth Attorney-General, Patrick Glynn, advised Deakin to appoint Symon. JA La Nauze has speculated that Deakin sought Glynn’s advice as a ‘gesture’ to avoid ‘the possible charge of having ignored Symon’s claims’. Deakin admitted that Symon’s qualifications were ‘his difficulty’ in making the appointment. He almost certainly did not want to foist Symon on the foundation Justices because of Symon’s dispute with them as Attorney-General the previous year (see Strike of 1905).
On 10 September 1906, Deakin wrote to Way to determine whether Way would accept a formal offer of appointment to the High Court if it were made. According to Gordon, the invitation was ‘obviously a ruse’ and Way’s rejection was ‘a foregone conclusion’. Way, over 70 years old, replied on 13 September that when ‘the formal offer is made I shall respectfully ask to be excused from accepting it’. The letter shows that before federation, Deakin had considered Way for the inaugural Bench. Deakin’s diary suggests that he let Griffith know on 6 September that he would not appoint Symon. On 20 September, Barton wrote how glad he was not to have to suffer Symon as a colleague. Deakin made a formal offer of appointment to Way on 24 September. Deakin’s invitation and Way’s refusal were tabled in Parliament, allowing Deakin to use his offer—his ‘gesture’—to deflect criticism that SA was not represented on the Bench.
On the day the Bill increasing the size of the Bench to five passed its third reading in the Senate, Deakin received a letter, signed by his entire Cabinet, expressing ‘a hope that you will be willing to accept one of the positions’ so that the Court would be ‘exalted in the highest degree in public regard’. Deakin rejected the idea in Parliament on 4 July 1906 because such positions ‘should be filled by better men’. In 1912, he wrote: ‘I could not possibly have been CJ of the High Court or even a member of it. My professional life had not been nearly long enough to make that possible.’ Isaacs and Higgins were appointed to the two vacancies.
O’Connor’s death in 1912 and the increase of the Bench to seven created three High Court vacancies. In February 1913, Attorney-General WM Hughes stated publicly that he had first invited John Gordon to fill one of them. Gordon declined because of ill health, but wrote to Hughes about who might be appointed instead.
Gordon wrote that Glynn, whom Deakin tipped, was ‘a good fellow’, but his ‘mental output always seems to … resemble scrambled eggs—wholesome enough, but messy’. Gordon, ‘if I were A-G’, would not hesitate to recommend a junior barrister like Thomas Bavin, later NSW Premier, ‘rather than a doubtful KC’. Gordon also suggested NSW barrister Bernhard Wise and renowned scholar Jethro Brown, among others.
Journalist Hector Lamond recommended Robert Garran, Secretary of the Attorney-General’s Department. It ‘would leave the SM Herald without a word to say in protest’. In October 1920, Hughes said in Parliament that he would have appointed Garran to the judiciary at some stage, ‘but for the fact that he is too valuable a man for us to lose. We cannot spare him’.
When the appointments were made in 1913, Gavan Duffy replaced O’Connor, and Powers and Piddington took the two other vacancies. When Piddington resigned, he suggested Hughes appoint Wilfred Blacket KC or Knox. In a letter to Prime Minister Andrew Fisher, Hughes considered Starke a good man, but someone ‘quite opposed to our view’. In the end, Rich was appointed to replace Piddington.
According to Dixon in his retirement speech, when the government offered Starke a High Court seat in 1920, Starke immediately wrote to Leo Cussen about how it could be arranged to have Cussen appointed instead. ‘Cussen found on the whole proposal that there were all sorts of difficulties in it—but most of all that they had asked Starke and had not asked Cussen.’ Dixon said the failure to appoint Cussen to the High Court was one of ‘two tragedies in the life of the High Court’. The other was the failure to appoint Chief Justice of NSW Frederick Jordan.
In April 1930, after Powers and Knox had resigned, and as expectation grew that Isaacs would be appointed Governor-General, Attorney-General Frank Brennan told the press that ‘it seemed proper’ to reduce the number of Justices to five. But when Brennan and Prime Minister James Scullin were overseas, Caucus demanded that the vacancies be filled by Justices politically acceptable to the Labor Party. Scullin was ‘astounded’. He cabled the Acting Prime Minister from overseas:
It is a reversal of Cabinet decision, and means that Cabinet accepts political direction on appointments to the High Court judiciary. Political interference removing this matter from Cabinet responsibility strikes fatally at authority of Court. Attorney-General and I will be no party to that. Number of judges adequate … We ask party to reconsider appointments before it is too late.
Cabinet went ahead and appointed Evatt and McTiernan in Scullin’s absence. Curiously, their appointments were pushed through during the Court’s summer vacation (13 December 1930 to 9 February 1931). Evatt was appointed on 19 December 1930, McTiernan on 20 December. Newspapers such as the Argus explained why: ‘As it is intended that Dr Evatt shall be the Chief Justice his commission will be issued one day before that of Mr McTiernan to ensure Dr Evatt’s seniority.’ The Argus believed that Scullin’s return caused several Ministers to waver in their allegiance to caucus, and Gavan Duffy was appointed Chief Justice instead. When Evatt and McTiernan were appointed, Dixon threatened to resign, but Starke talked him out of it.
In late April 1930, newspapers reported strong union pressure upon the federal Ministry to make the Commonwealth Court of Conciliation and Arbitration ‘more democratic’ by appointing the President of that Court, George Dethridge, to the High Court to make way for a more sympathetic judge in arbitration (possibly, Piddington). On 1 May, Cabinet decided to hold over ‘the question of altering the personnel of the [Arbitration] Court’. Isaacs’ retirement in January 1931 created a third High Court vacancy. Cabinet minutes record that in early 1931, Scullin ‘brought up matter of communications he received from ARU urging that the third vacancy on the High Court Bench be filled’. In the end, in a time of economic depression and controversy over the Evatt and McTiernan appointments, the Labor government left the vacancy unfilled.
Jordan was first offered the seat that went to Williams in 1940, but declined, citing age and difficulty of travel as the reasons. According to the Dixon diaries, Prime Minister Robert Menzies had commissioned the Commonwealth Solicitor-General to ‘get the A-G [Hughes] to agree to appointing 1. Jordan, 2. W[illia]ms, 3. Owen to the Court’. Other names put forward to Hughes included ‘Bonney, Nicholas, Maughan, Teece, Spender & Mitchell’. Dixon ‘arranged to find out whether J[ordan] would consider it’. Dixon ‘rang R[ich] who rang [Jordan]. Reply definitely no’. The diaries record Menzies saying later that ‘he was in favour of an immediate appointment to the HCA [of] Dudley Williams, WFL Owen & Napier (supposing Jordan against) favoured in that order. Weston, Mason & Mitchell discussed and excluded’.
On 2 October 1945, while Attorney-General Evatt was overseas, Cabinet decided to increase the number of Justices to nine. Arthur Calwell and Eddie Ward proposed the increase. At various times, Ward publicly advocated the appointment of people sympathetic to the Labor Party. After he returned, Evatt persuaded Cabinet, on 17 January 1946, to amend its decision. According to Calwell, Evatt feared the government would be accused of packing the Court if it increased the Bench to nine. Cabinet now decided to create one additional seat only. According to Barwick, Prime Minister Ben Chifley rejected Evatt’s suggestions of Harry Alderman and Jack Barry, two senior counsel with Labor Party links:
Chifley wouldn’t accept Evatt’s nominations. He had Alderman and Jack Barry, but Chifley wouldn’t have it. Chifley sent word to me, would I accept it, and I said no … Then the story came to me out of the Cabinet that Chifley said to Evatt, ‘If you’re not careful, I’ll send for Barwick’, and that was like a red flag to a bull to Bert. So he reached out and picked on Willy Webb … And he was a very nice chap, Willy Webb.
Former Labor Party MP Clyde Cameron has noted Alderman’s proposed appointment in The Cameron Diaries (1990) and discussed it in an oral history recording with Mel Pratt in 1971. According to Cameron, the proposal to appoint Alderman was linked to his alleged engineering of the transfer of two radio broadcasting licences to the Labor Party. Menzies, who had already repeatedly pursued that allegation in Parliament, was likely to reopen the issue if Alderman was appointed. Others, such as former NSW Supreme Court judge Rae Else-Mitchell, who knew Alderman well, have shown less confidence about Alderman’s candidature. Else-Mitchell has suggested that even if Alderman was considered for the appointment, it is unlikely that he would have accepted it.
Barry, a more serious contender, was an eminent Victorian barrister (later a Supreme Court judge), with a scholarly interest in criminology. For Geoffrey Sawer, the High Court would have gained from the presence of this ‘gadfly … who would have set a brilliant nonconformist mind against the powerful but deeply conservative thought of Sir Owen Dixon’. But when rumours of Barry’s appointment reached federal Parliament, his suitability was attacked by members of the Opposition, including Country Party Member for NSW HL Anthony (10 April 1946): ‘I’m not challenging Mr Barry’s probity, but does anyone suggest he would not be prejudiced if legislation by this Government came before him?’
The vacancy came up for Cabinet decision on 12 April 1946. Evatt now argued for Webb. According to Calwell, Evatt wanted Webb because his appointment would help attract the Catholic vote. Many in Cabinet, including John Dedman, Don Cameron, Jack Holloway, Calwell, and Ward, voted for Barry. The debate was fierce, but Evatt won.
In 1952, Dixon and Menzies discussed who might fill the vacancy caused by Latham’s retirement. The Dixon diaries record that in early April, Dixon told Menzies that the Court ‘had two passengers & we could not carry more’. Menzies said he would not agree to the appointment of Commonwealth Attorney-General John Spicer. Although Dixon thought Spicer a ‘good fellow’, ‘high ability, law, and conduct were needed. I had no doubt of the third in his case but education and background counted so much’. After Dixon had discussed the matter with the other Justices, he suggested Taylor, Owen, Victorian Supreme Court judges Reginald Sholl and TW Smith, and Douglas Menzies. Fullagar added Alistair Adam, who had been Fullagar’s pupil at the Bar; Latham added NSW Supreme Court Chief Judge in Equity, David Roper.
A month later, Menzies and Dixon reviewed the character of these men. ‘Menzies asked me if I thought the idea of a balance between NSW & Vic mattered. I s[ai]d no.’ Menzies thought Sholl ‘overlaid a simple case with authorities’; his cousin, Douglas Menzies, ‘c[oul]d wait’; and Smith was ‘cold & unimaginative’. Dixon ‘spoke of McT[iernan] and Webb & the possibility of their becoming diplomatists discussed’. In July 1952, Dixon wrote that ‘we all thought Sholl less likely to be a success than when I last spoke. He seemed like a doctor so interested in the disease that he was indifferent to the fate of the patient’. Roper was ruled out because he was ‘an equity man’, and in that area, the Court already had Williams, Fullagar, and Kitto.
In August, Menzies told Fullagar that Spicer had wanted badly to be appointed but that Menzies had talked him out of it. Spicer and Solicitor-General Kenneth Bailey suggested Victorian QC PD Phillips as ‘the only man to be appointed’. Fullagar viewed the appointment as ‘entirely unsuitable’, saying it ‘w[oul]d wreck the Court’. Menzies insisted on Taylor, Owen, or Smith. Fullagar reported to Dixon that Douglas Menzies might have been appointed ‘if his name had not been Menzies’ and that Robert Menzies had in effect said this. The position was eventually filled by Taylor.
In April 1958, Dixon told Menzies that the Justices (Fullagar, Taylor, and Dixon) thought Douglas Menzies ‘outstanding’. Robert Menzies said he had obtained favourable responses from some Cabinet members to Douglas Menzies’ proposed appointment (as a replacement for Webb). Dixon told Menzies: ‘We thought in NSW Owen J & [JK] Manning J the men. Smith J in Vic. Perhaps Burbury CJ in Tas. No one elsewhere ripe.’ The position went to Douglas Menzies.
In May, Dixon and Robert Menzies discussed Williams’ successor. Taylor recommended Manning but Dixon ‘cast doubt on this’ and suggested Windeyer or Owen. Menzies said his ‘present view’ was Owen but that he would enquire. In August, Menzies said that NSW Supreme Court judges Gordon Wallace, Bernard Sugerman, and Walsh had been proposed by various people. Dixon viewed Walsh’s appointment as being ‘without justification’. ‘It would be a reflection on Owen, Windeyer, TW Smith in Victoria and so on. He might develop but there was no ground now. Owen and Windeyer were the men.’ The appointment went to Windeyer.
In July 1961, Dixon proposed ‘Aickin, Smith, Adam & Owen’ for the vacancy caused by Fullagar’s death. Dixon and Menzies discussed these and referred to others—‘Manning, Burbury CJ, Jacobs, Walsh (out) and Gibbs’. ‘McT[iernan] was referred to as a difficulty.’ Douglas Menzies canvassed his cousin for Smith. Prime Minister Menzies apparently settled on Adam. By this time, Evatt was Chief Justice of NSW. In physical and mental decline, and embittered by Owen’s role in the Petrov affair, Evatt had made Owen’s life on the Supreme Court miserable. Before the matter went to Cabinet, the Prime Minister was apparently prevailed upon to appoint Owen.
According to Barwick’s autobiography, Barwick told Menzies that while Aickin was the best candidate from the Victorian Bar to replace Dixon as Chief Justice in 1964, the Court needed a strong administrator. Barwick said he was willing to be appointed if Cabinet desired it. Dixon was devastated by Menzies’ decision to appoint Barwick. His diaries contain several references to Dixon’s suggesting to Menzies that he should consider taking the position himself. If Menzies refused, Dixon, wanting his successor to be from the Victorian Bar, had a clear preference for Aickin.
Cabinet papers confirm that in 1969, Aickin declined, for family reasons, the appointment that eventually went to Walsh. It is understood that Gibbs was also on the short list. When Gibbs was appointed in 1970, he was Attorney-General Tom Hughes’ sole recommendation. Contrary to rumour, Wilson’s name was not put forward.
There was speculation in 1972 about whether Nigel Bowen, the Minister for Foreign Affairs and former Attorney-General, would be appointed to fill the vacancy created by Owen’s death. Prime Minister William McMahon had promised Bowen that he would be appointed. But the appointment would have necessitated a by-election for Bowen’s marginal seat of Parramatta. A defeat there, in an election year, would have been a severe embarrassment to the government. According to the former Secretary of the Attorney-General’s Department, Clarrie Harders, keeping Bowen in Parliament was also vital to McMahon because of Bowen’s legal contribution to the government and the extent to which McMahon personally relied upon Bowen. The vacancy created by Owen’s death was filled by Mason.
In the 1960s, Gough Whitlam evidently promised to appoint Else-Mitchell to the High Court if and when the opportunity arose. However, when the opportunity did arise (after Walsh’s death in 1973), Else-Mitchell told Whitlam that he was no longer interested in a High Court seat, for a variety of personal and professional reasons. Murphy had at one stage proposed that Colin Howard be appointed, but Whitlam thought that Australians were not ready for an academic to be appointed to the Court. Whitlam and Murphy chose Jacobs instead.
In 1975, Murphy was appointed to fill the vacancy caused by Douglas Menzies’ death. Solicitor-General Maurice Byers and NSW judge Robert Hope were the other major candidates for the post. It is widely believed that a promise of a seat was made to Byers, and that Byers was willing to accept it (but see Whitlam era).
Cameron has written in The Cameron Diaries about a caucus meeting at which Whitlam discussed the government’s proposal to introduce a compulsory retirement age for federal judges, Whitlam ‘explaining that the proposed retiring age would not apply to existing judges, but that “when the Labor Government appoints Mr Justice Murphy as Chief Justice of the High Court, the new retiring age would apply to him”’. According to Cameron, ‘it was generally accepted that when Murphy agreed to accept his appointment to the High Court there was a tacit understanding he would succeed Barwick’. Barwick gives an elaborate account in his autobiography, claiming that a meeting took place between Whitlam, Deputy Prime Minister Jim Cairns, and Murphy at which Murphy insisted that Whitlam give him a firm assurance that should the position of Chief Justice fall vacant Murphy would be appointed: ‘Jim Cairns has assured Clyde Cameron that this took place.’
For Whitlam, ‘it is unreal to suggest that Murphy would have sought or that Cairns or I could have given an assurance that Murphy would later be appointed Chief Justice … Cameron was not present when Cairns raised Murphy’s appointment with me in December 1974 and when Murphy, Cairns and I discussed it on 9 February 1975. Cairns has assured me that he did not inform Cameron of our discussion.’ Cairns has agreed: ‘Whitlam never at any time gave Murphy an assurance that he would be appointed Chief Justice if the position became vacant. I never at any time assured Clyde Cameron that this took place.’ Cameron, however, has reaffirmed what he wrote in The Cameron Diaries, asserting that his information came directly from Murphy as well as from Cairns.
When the vacancy caused by McTiernan’s retirement arose in 1976, it was first offered to Wilson, from WA, because of a desire to encourage appointments from the less-populous states. Wilson declined for personal reasons. The position was then offered to Aickin, who accepted it.
There was much speculation about whether RJ Ellicott would be appointed to replace Barwick as Chief Justice in 1981. Ellicott had been offered, but had declined, the position that ultimately went to Wilson in 1979. Prime Minister Malcolm Fraser had asked Ellicott in 1979 whether he would accept the position of Chief Justice when Barwick retired. Ellicott said he would. When the position became vacant, Fraser and his senior Ministers canvassed widely the respective merits of Ellicott and Gibbs for the Chief Justiceship. The Labor Party attacked Ellicott’s role in the dismissal of 1975; non-Labor states opposed Ellicott’s appointment because of his ‘centralist’ stance; and newspapers attacked the appointment as an example of ‘jobs for the boys’. In the end, Prime Minister Fraser offered Ellicott a puisne Justiceship, which Ellicott again declined.
In 1995, Foreign Minister and former Attorney-General Gareth Evans was seriously considered for a vacancy—evidently, the Chief Justiceship—created by the retirement of Mason. According to Keith Scott, Evans’ biographer, at least one government Minister privy to discussions believed that Evans’ appointment was a ‘jobs-for-the-boys argument we could not afford to have’.
In 1997, the Commonwealth circulated to the states a short list of candidates to fill the vacancies created by the resignations of Dawson and Toohey and the imminent retirement of Brennan. This list was leaked to the Sydney Morning Herald. It included South Australian Chief Justice, John Doyle (the candidate who had been most favoured to replace Deane in 1995); Western Australian state Supreme Court judge Christine Wheeler (the sole woman on the list); the then President of the NSW Bar Association, David Bennett; the President of the NSW Court of Appeal, Keith Mason; and the then Solicitor-General, Gavan Griffith. In the end, Hayne replaced Dawson. John von Doussa was evidently the Attorney-General’s choice to replace Toohey, but Prime Minister John Howard preferred to appoint Callinan. Callinan’s appointment occurred after Deputy Prime Minister and National Party leader Tim Fischer, responding to the Wik (1996) decision, publicly called for the appointment of ‘capital-C Conservatives’. Whether Callinan met that description (assuming such labels to be helpful) is another question.
J Myron Jacobstein and Roy Mersky, The Rejected: Sketches of the 26 Men Nominated for the Supreme Court but not Confirmed by the Senate (1993)