The Chief Justice Series: Adrian Knox and no-one answers

I can’t think of anything interesting to say about our second Chief Justice, Sir Adrian Knox.  Indeed, he’s the one that I always forget.  As far as I’m concerned, Adrian Knox was the pretend Chief Justice — a controversial claim to be sure, but one with which I’m sure you’ll agree come the end of this blog post.

It’s 1919 and the High Court has come to an end of its golden years under Chief Justice Griffith.  For nearly two decades, Griffith had been interpreting the Constitution which he had all but written with his bare beard.  These early days of Federation seem so alien to us now.  The rigid views of separation between the branches of government — merely implied by the structure of the Constitution — had not quite sunk in, and nobody thought it in the least bit strange that the man who had written the thing would be interpreting the thing.

It gets a bit weirder.  Sir Edmund Barton, the first Prime Minister of Australia, was also one of the foundation Justices of the High Court, as was Sir Richard O’Connor who was a Senator in the first term of the Australian Parliament  (Court formed two years after Parliament).

In other words, the first three people to sit on the High Court to interpret the Constitution and Acts of Parliament were two guys who voted on the Acts being interpreted and the guy who wrote the Constitution.  Separation be damned.

There’s another point here that I’ll quickly make.  Since the publication a month or two ago of Jenny Hocking’s Gough Whitlam: His Time, there has been a lot of criticism of Sir Anthony Mason.  Although I’ll write about him in due course, the criticism is fairly ignorant.  According to supporters of Whitlam, the Governor-General should only take advice from the Government (particularly the Attorney-General).  For the Governor-General to consult the High Court for legal advice is completely improper and unconstitutional and wrong and conspiratorial and nearly caused the horses to eat each other…

Griffith and the High Court advised the Governor-General quite regularly.  The role and limitations of the Governor-General are not easy to understand in the Constitution, so why not ask the guy who wrote it for his advice?  Nobody thought it was improper.  If Mason advised the Governor-General (as indeed it appears), it had a solid precedent in the form of Sir Sam.

But back to Federation!  It’s in 1906 that the Court expands, taking in one of its most influential and controversial justices, Sir Isaac Issacs (who, by the way, had been Attorney-General of Australia), and H.B. Higgins (who had been the Member for North Melbourne).  In 1913, the Court expands again: Duffy, Powers, Padlington, and Rich.  As Barton had died in 1912, this brought the number of justices to seven.

It’s this 1913 intake that breaks the trend: not one had been a member of the Federal group.  Powers had been Government Solicitor (so Gageler’s appointment wasn’t as unprecedented as some suggested) and Duffy set the trend for high-flying K(Q)Cs to be appointed to the Court.  But we still don’t see the trend — so common since the 1940s — for people with vast judicial experience to be appointed to the Court.  In 1913, there were two people with prior experience: Griffith and Rich.

And so here we are in 1919 and this glorious age is at an end.  Griffith is retiring to look after his health (he will be dead within the year) and we have the task of finding a new Chief Justice.

Enter: Adrian Knox.  Born into Australia’s sugar industry (his father founded C.S.R.), Knox was born into luxury and privilege.  He attends the best schools.  He studies Law in the UK.  His family’s political connections ensure that he’s well set up with a practice, even before his elder brother’s untimely death.  He’s a gambler — owns enough horses — but a hard worker.  His experience with the High Court is entirely from appearing before it.

And thus Prime Minister Billy Hughes appoints him as Chief Justice.

But although Knox had appeared in enough cases before the Court, he hadn’t really engaged with the deeper questions still burning in Australian Constitutional law: what are the limits of the Commonwealth’s power? what does it mean for Australia to be a federation? and how should the Constitution be interpreted?

Griffith — a giant of a man — had been very confident to follow the interpretative path of the US rather than that of the UK.  Decisions of SCOTUS influenced him a lot, particularly its views of State rights.  The Commonwealth, he felt, was a convenience of the States.  Although Federated, the Commonwealth should leave the States alone wherever possible.

Sitting on the Court, however, are two men with very different ideas — Isaac Isaacs and H.B. Higgins.  Isaac Isaacs loathed the States (and, to his credit, the Senate as well).  If the whole point was to become one Australia, why on Earth would the powers of the States be protected?  Surely, they were remnants of a less sensible age: the 1800s!  It was the 1900s now and well past time for there to be one Australia.

With Griffith, Barton, and (by now) O’Connor gone, Issacs and Higgins were a lot more influential.  Knox, though proficient in application, doesn’t come to grips with the deeper issues of legal theory and gets swept along in Issacs’ tremendous energy.

Nowhere is this more obvious than in the Engineers’ Case in 1920.

Up until this point, the States had an ‘implied immunity’ from the Commonwealth.  The case brought before it was whether the Commonwealth could use one of its powers to interfere with an industrial dispute involving one of the States (Western Australia).  Isaacs had been itching for a fight over this since the late 1800s but Griffith had kept him in check.

Isaacs, writing the joint judgement for Engineers’, is unleashed.  He not only says that there’s no implied immunity but he completely changes the course of Constitutional interpretation in Australia both in favour of centralisation and in favour of literalism.

This would have been the opportunity for Knox to show to the world that he was awake and ready to take on the job of Chief Justice.

Instead, for the next eleven years, he’d be eclipsed by the outstanding Isaacs.  Even where Knox wrote his own judgement, Isaac’s would be better.  Clyde Engineering Co Ltd v Cowburn, Knox and Duffy wrote a judgement, but it’s Isaacs’ exposition of the ‘covering the field’ test that’s remembered.

In 1930, Knox retired to manage a business he had inherited.  An unremarkable Chief Justice for a remarkable period in the High Court’s history.

Author: Mark Fletcher

Mark Fletcher is a Canberra-based PhD student, writer, and policy wonk who writes about law, conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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