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Parachuting in: War and Extra-Judicial Activity by High Court Judges

Published online by Cambridge University Press:  24 January 2025

Fiona Wheeler
Fiona Wheeler*
Affiliation:
ANU College of Law, ANU
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Extract

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’. The historical record confirms this assessment. While High Court judges have, in peacetime, periodically engaged in government work outside the courtroom, most instances of extra-judicial service by our top judges have occurred during war. Thus, it is only during World War I that members of the Court have conducted 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, near Sydney. More surprisingly, in 1918 – only months after the Australian people had, for the second time in little over a year, rejected conscription at referendum – Chief Justice Sir Samuel Griffith inquired into the recruitment levels needed to sustain the Australian Imperial Force. 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.

Type
Research Article
Information
Federal Law Review , Volume 38 , Issue 3 , September 2010 , pp. 485 - 502
Copyright
Copyright © 2010 The Australian National University

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Footnotes

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 Graeme 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 referee. In these footnotes, ‘NLA’ refers to the National Library of Australia and ‘NAA’ to the National Archives of Australia.

References

1 Chief JusticeMurray, Gleeson, ‘The Right to an Independent Judiciary’ (2006) 16 Commonwealth Judicial Journal 6, 14Google Scholar.

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) 44–5Google Scholar; Graham, Fricke, ‘The Knox Court: Exposition Unnecessary’ (1999) 27 Federal Law Review 121, 127–8Google Scholar. See also J D, Holmes, ‘Royal Commissions’ (1955) 29 Australian Law Journal 253, 268, 272Google Scholar. In 1954, Sir Owen Dixon declined a request from Prime Minister Menzies to serve on the Petrov Royal Commission: Philip, Ayres, Owen Dixon (2003) 243–4Google Scholar.

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 and 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 with 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 JusticeMichael, Kirby, ‘Sir Edward McTiernan: A Centenary Reflection’ (1991) 20 Federal Law Review 165, 177–8Google Scholar.

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) 151Google Scholar. 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 that did not involve 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 description apposite for present purposes. On any view, the High Court has always occupied a position of leadership in the Australian judicial hierarchy.

11 Ayres, above n 4, ch 7 (esp 125–6, 129, 132, 134).

12 Ibid 115–17, 120.

13 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (Wilson's Case) (1996) 189 CLR 1; Kable v DPP (NSW) (1996) 189 CLR 51.

14 Wilson's Case (1996) 189 CLR 1, 10–13 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ); Polyukhovich v Commonwealth (1991) 172 CLR 501, 684–5 (Toohey J).

15 Gleeson, above n 1, 14.

16 This exchange is little-known amongst legal commentators. It has, however, been noted in a different context by historian David Day: see, eg, David, Day, Menzies and Churchill at War (1993) 25Google Scholar.

17 For a brief account of Dick Latham's life, prematurely ended by the war, see Stuart, Macintyre, ‘Latham, Sir John Greig (1877–1964)’ in Australian Dictionary of Biography (1986) vol 10, 2Google Scholar, 6. For a longer account, focusing on Dick Latham's academic career and acclaimed essay, ‘The Law and the Commonwealth', see Peter, Oliver, ‘Law, Politics, the Commonwealth and the Constitution: Remembering RTE Latham, 1909–43’ (2000) 11 King's College Law Journal 153Google Scholar (I am grateful to Leslie Zines for drawing this article to my attention). Dick Latham joined the RAF in 1941 and died when his plane went missing in 1943.

18 Letter (copy) from Richard Latham to Sir John Latham, 21 May 1940: Papers of Sir John Latham, NLA MS 1009/1/5460.

19 Macintyre, above n 17, 3–5. The association between Latham and Menzies preceded their political careers. Latham taught Menzies at the University of Melbourne Law School and they later appeared together at the bar: ‘Tributes to Late Sir John Latham', The Age (Melbourne), 27 July 1964, 5.

20 Latham's friend, senior British civil servant Maurice Hankey, quoted in Alan, Martin, Robert Menzies: A Life (1993) vol 1, 127Google Scholar.

21 Letter (copy) from Sir John Latham to Prime Minister Menzies, 20 June 1940: Papers of Sir John Latham, NLA MS 1009/1/5459. In this letter, Latham suggested the State Premiers might also join these discussions.

22 Letter ('Personal’) from Prime Minister Menzies to Sir John Latham, 22 June 1940: Papers of Sir John Latham, NLA MS 1009/1/5461.

23 See Clem, Lloyd, ‘Not Peace But a Sword! − The High Court Under JG Latham’ (1987) 11 Adelaide Law Review 175Google Scholar, 195–6, 202.

24 For a flavour of Latham's post-war advising while on the Court, see ibid 195–6, 202. For examples of Latham's pre-war advising, see Letter ('Personal’) from Prime Minister Lyons to Sir John Latham, 25 March 1938: Papers of Sir John Latham, NLA MS 1009/1/5183 (Lyons saying that the government would consider ‘your suggestion that a military road be built up the east coast’); Letter from Prime Minister Lyons to Sir John Latham, 8 December 1938: Papers of Sir John Latham, NLA MS 1009/1/5245 (Lyons thanking Latham for his ‘comments’ on a wireless address by Lyons; also that he would contact Latham concerning ‘your ideas on mandated islands and aliens’). Examples of Latham's wartime advising are discussed in this essay.

25 JusticeJ B, Thomas, Judicial Ethics in Australia (3rd ed, 2009) 185–8Google Scholar, 191–2, 298–9. Thomas argues that Latham's back-channel political involvement while on the High Court was improper when assessed against both the standards of the time and those of today.

26 Louis, Jaffe, ‘Professors and Judges as Advisors to Government: Reflections on the Roosevelt-Frankfurter Relationship’ (1969) 83 Harvard Law Review 366Google Scholar, 373–5; Bruce, Allen Murphy, ‘Elements of Extrajudicial Strategy: A Look at the Political Roles of Justices Brandeis and Frankfurter’ (1980) 69 Georgetown Law Journal 101Google Scholar; Bruce, Allen Murphy, The Brandeis/Frankfurter Connection (1982)Google Scholar.

27 Ayres, above n 4, ch 7 (esp 117–21).

28 Laurence, Maher, ‘Owen Dixon: Concerning His Political Method’ (2003) 6 Constitutional Law and Policy Review 33Google Scholar esp at 38–40 concerning Dixon's backroom dealings with Prime Minister Menzies over the Petrov Royal Commission. See also, eg, Ayres, above n 4, 243–4. Executive advising also occurred in earlier periods of the High Court's history: see Don, Markwell, ‘Griffith, Barton and the Early Governor-Generals: Aspects of Australia's Constitutional Development’ (1999) 10 Public Law Review 280Google Scholar.

29 Letter ('Personal and Confidential’ with High Court letterhead crossed out) from Sir John Latham to Prime Minister Curtin, 14 December 1942 in NAA: M1415, 168/119 (Personal Papers of Prime Minister Curtin, Correspondence ‘L’).

30 Letter ('Personal’) from Sir John Latham to Prime Minister Curtin, 6 December 1943 in NAA: M1415, 307/134–9 (Personal Papers of Prime Minister Curtin, Correspondence ‘L’). For another example of Latham advancing views on policy matters to Curtin, see Letter (copy) from Sir John Latham to Prime Minister Curtin, 21 September 1943 in NAA: A433, 1945/2/5960/5–6 (Correspondence files, Class 2 (Restricted Immigration)) (Latham to Curtin on immigration policy).

31 David, Day, John Curtin: A Life (2006) 419Google Scholar and see Letter (copy and marked ‘Personal’) from Sir John Latham to John Curtin, 16 June 1940: Papers of Sir John Latham, NLA MS 1009/1/5456.

32 A pencilled copy of this telegram annotated by Latham ‘sent 19th(?) July 1940’ is contained in the Latham papers on the reverse of an unrelated document: Papers of Sir John Latham, NLA MS 1009/1/5470.

33 P G, Edwards, Prime Ministers and Diplomats: The Making of Australian Foreign Policy 1901–1949 (1983) 116–24Google Scholar.

34 Macintyre, above n 17, 5.

35 Commonwealth of Australia, The Australian Eastern Mission, 1934: Report of the Right Honorable J G Latham (1934) 16–18Google Scholar. See also Zelman, Cowen, Sir John Latham and Other Papers (1965) 25Google Scholar; Edwards, above n 33, 124.

36 ‘Minister for Japan: May be Mr Spender', The Argus (Melbourne), 25 June 1940, 4. This press cutting was kept by Latham in his personal papers: Papers of Sir John Latham, NLA MS 1009/65/1. See also P, Brian Murphy, ‘Opening Australian Diplomatic Relations with Japan’ (1977) 31 Australian Outlook 406, 416Google Scholar.

37 Ayres, above n 4, 122 (conversation between Latham and Dixon recorded in the Dixon Diaries).

38 Letter from Sir John Latham to Prime Minister Menzies, 27 June 1940 in NAA: CP290/2 (CP290/2), BUNDLE 1/16. For a copy of this letter, see Papers of Sir John Latham, NLA MS 1009/65/9.

39 Ayres, above n 4, 122. The Judiciary Act 1940 (Cth) was passed to provide legislative support for Latham's appointment as Minister to Japan.

40 Cowen, above n 35, 26–7; Telegrams between Prime Minister Menzies and Sir John Latham, 12 November 1940 in NAA: CP290/2 (CP290/2), BUNDLE 1/16; 64 CLR iv.

41 Wilson's Case (1996) 189 CLR 1, 17–18 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ).

42 Ibid 17–20.

43 Ibid 45 (Kirby J). See generally Fiona, Wheeler, ‘Federal Judges as Holders of Non-judicial Office’ in Brian, Opeskin and Fiona, Wheeler (eds), The Australian Federal Judicial System (2000) 442Google Scholar.

44 Thomas, above n 25, 292–3; Kable v DPP (NSW) (1996) 189 CLR 51, 118 (McHugh J) (as McHugh J notes, the traditional position of the Lord Chancellor in England is a ‘historical anomaly’).

45 For an account of Dixon's wartime committee work and his role as Minister to the United States, see Ayres, above n 4, chs 7–8.

46 Edwards, above n 33, 193.

47 In addition, prior to the commencement of Latham's High Court leave, it seems that, as ambassador-in-waiting, he attended at least one federal Cabinet meeting. See Ayres, above n 4, 124 recording a diary entry by Dixon for 1 October 1940: ‘Tea with Latham who came from the Cabinet: sd (1) Menzies thought he was beaten. (2) All in fear of Japan … The Jap. treaty with Germany meant that she believed that we were beaten.’ As Ayres notes, the reference to Menzies thinking he ‘was beaten’ relates to the then uncertain result of the September 1940 election.

48 Edwards, above n 33, 127 (and generally at 126–8, 130).

49 Copy of decoded telegram from Prime Minister Curtin to Sir John Latham, 12 October 1941: Papers of Sir John Latham, NLA MS 1009/65/563. Latham readily provided such ‘guidance', sending the Prime Minister policy memoranda on topics such as securing Australia against invasion and British military preparedness in Singapore: see Memorandum ('Secret’) ‘Invasion of Australia', 15 August 1941: Papers of Sir John Latham, NLA MS 1009/65/648–50; Telegram from Sir John Latham to Department of External Affairs (undated, sent from Singapore in late 1941): Papers of Sir John Latham, NLA MS 1009/65/626; Letter (copy) from Sir John Latham to Prime Minister Curtin, 16 December 1941: Papers of Sir John Latham, NLA MS 1009/65/638–9. In relation to the description in this paragraph of Latham's role as a diplomat, cf Wilson's Case (1996) 189 CLR 1, 17–20.

50 McTiernan's instrument of appointment directed he report to Attorney-General Evatt. See NAA: SP109/3, 301/16 (Air Services and Aircraft. Inquiry Conducted by Hon Justice McTiernan into Alleged Falsification of Records in Connection with Aircraft Production).

51 NAA: A2700, 939 (Memorandum Cabinet Secretary to Hon J A Beasley, Acting Attorney-General, 25 September 1945). To this day, the McTiernan inquiry is not included in lists of Commonwealth Government inquires: see, eg, D H, Borchardt, Checklist of Royal Commissions, Select Committees of Parliament and Boards of Inquiry: Part I, Commonwealth of Australia 1900–1950 (1965)Google Scholar; SirMurray, McInerney and Garrie, Moloney, ‘The Case Against’ in Glenys, Fraser (ed), Judges as Royal Commissioners and Chairmen of Non-Judicial Tribunals: Two Views Presented at the Fourth Annual Seminar of the Australian Institute of Judicial Administration (1986) 83–7Google Scholar; Scott, Prasser, Royal Commissions and Public Inquiries in Australia (2006) 255–77Google Scholar.

52 See, eg, Re Nolan; Ex parte Young (1991) 172 CLR 460, 496–7 (Gaudron J).

53 Cf, however, the outcome in Grollo v Palmer (1995) 184 CLR 348.

54 See above n 4 and accompanying text.

55 Wilson's Case (1996) 189 CLR 1, 17. I am grateful to Sir Anthony Mason for a helpful discussion on this issue.

56 Alexander, Hamilton, ‘Federalist No 78’ in Clinton, Rossiter (ed), The Federalist Papers (1961) 464, 465Google Scholar.

57 Gleeson, above n 1, 15 discussing the Guide to Judicial Conduct (as to which, see Australian Institute of Judicial Administration, Guide to Judicial Conduct (2nd ed, 2007) 21)Google Scholar. See also, eg, McInerney and Moloney, above n 51, 51–2 on the impact of the mode of recruitment of judges for non-judicial work on internal court management.

58 Letter from Sir John Latham to Prime Minister Curtin, 16 December 1941: Papers of Eric Tonkin, NLA MS 3668, Box 28, Folder 3 (my thanks to Graeme Powell who alerted me to this letter). In response, Curtin told Latham he appreciated ‘the offer of your further services which will be borne in mind': see Letter from Prime Minister Curtin to Sir John Latham, 22 December 1941: Papers of Sir John Latham, NLA MS 1009/65/642.

59 Ayres, above n 4, 116 quoting from Dixon's diary entry for 7 September 1939.

60 Ibid 115–17, 120, 123; ‘Sir O Dixon: New Minister to United States', The Age (Melbourne), 20 April 1942, 2.

61 Letter from Sir William Webb to Prime Minister Menzies, 20 March 1964: Papers of Sir Robert Menzies, NLA MS 4936, Series 1, Personal Correspondence ‘Webb’ (Webb recounting his wartime offer to Menzies).

62 Ian, Callinan, ‘Webb, William Flood’ in Tony, Blackshield, Michael, Coper and George, Williams (eds), Oxford Companion to the High Court of Australia (2001) 706Google Scholar, 707.

63 Smith, above n 9, 153.

64 Callinan, above n 62, 707.

65 Wilson's Case (1996) 189 CLR 1, 46 (Kirby J).

66 Thomas, above n 25, 200.

67 Ibid 298–9 (and see also at 188–92, 195–211).

68 See generally Fiona, Wheeler, ‘The Boilermakers Case’ in H P, Lee and George, Winterton (eds), Australian Constitutional Landmarks (2003) 160Google Scholar.

69 (1996) 189 CLR 1.

70 Ibid 17–20; Wheeler, ‘Federal Judges as Holders of Non-judicial Office', above n 43, 470.

71 Though Kirby J claimed in dissent that ‘[u]nusual circumstances may call forth unusual needs’ referring, among other things, to Latham and Dixon's wartime diplomatic service: (1996) 189 CLR 1, 45.

72 Ayres, above n 4, 62–3, 70.

73 Holmes, above n 4, 272.

74 McInerney and Moloney, above n 51, 33.

75 Editorial, ‘Politics and the High Court', The Canberra Times (Canberra), 20 August 1940, 2. Latham preserved a copy of this in his personal papers: Papers of Sir John Latham, NLA MS 1009/65/519.

76 Editorial, ‘Sir John Latham for Japan', The Sydney Morning Herald (Sydney), 19 August 1940, 8. On Lord Reading's wartime extra-judicial service, see Shimon, Shetreet, Judges on Trial: A Study of the Appointment and Accountability of the English Judiciary (1976) 351–2Google Scholar. There is some suggestion in archival records that the Menzies Government may have sought to engineer favourable press coverage of Latham's appointment to Japan: see Letter from John McEwan to Prime Minister Menzies, 27 July 1940 in NAA: CP290/2 (CP290/2), BUNDLE 1/16.

77 Commonwealth, Parliamentary Debates, House of Representatives, 21 August 1940, 521 (William Hughes, Attorney-General). See also Commonwealth, Parliamentary Debates, House of Representatives, 6 May 1942, 921 (John Beasley, Acting Attorney-General).

78 A J, Brown, ‘The Wig or the Sword? Separation of Powers and the Plight of the Australian Judge’ (1992) 21 Federal Law Review 48Google Scholar, 51–2.

79 Letter (copy) from Sir John Latham to Prime Minister Menzies, 20 June 1940: Papers of Sir John Latham, NLA MS 1009/1/5459.

80 See also Ayres, above n 4, 117.

81 See, eg, White v Director of Military Prosecutions (2007) 231 CLR 570.

82 Brian, Galligan, Politics of the High Court: A Study of the Judicial Branch of Government in Australia (1987) 126–30Google Scholar. As Galligan notes, during World War II, the High Court also accepted the validity of extensive delegations of legislative power to the executive suggesting another respect in which the separation of powers is elastic during war. Cf, however, Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73.

83 McInerney and Moloney, above n 51, 17 (and generally 10–19); Gleeson, above n 1, 15; Murphy, The Brandeis/Frankfurter Connection, above n 26, 9–10 (noting how war ‘tend[s] historically to loosen any standards of propriety governing extrajudicial activities’), 302. More generally see, eg, H P, Lee, Emergency Powers (1984) 3–4Google Scholar; Geoffrey, Stone, ‘Civil Liberties in Wartime’ (2003) 28 Journal of Supreme Court History 215Google Scholar; Richard, Posner, Not a Suicide Pact: The Constitution in a Time of National Emergency (2006)Google Scholar; H P, Lee, ‘Salus Populi Suprema Lex Esto: Constitutional Fidelity in Troubled Times’ in H P, Lee and P, Gerangelos (eds), Constitutional Advancement in a Frozen Continent: Essays in Honour of George Winterton (2009) 53Google Scholar.

84 Though as H P Lee points out (Lee, ‘Salus Populi', above n 83, 53–4), in Gratwick v Johnson (1945) 70 CLR 1, 12 Latham CJ left open the possible application in Australia of the maxim silent leges inter arma, albeit (in Latham CJ's words) ‘in times of the gravest crisis and emergency, when the necessity of preserving the community and the lives of the people takes precedence over all other considerations'. Was Latham thinking in these terms in his fall of Britain exchange with Menzies?

85 Peter, Russell, ‘Towards a General Theory of Judicial Independence’ in Peter, Russell and David, O'Brien (eds), Judicial Independence in the Age of Democracy: Critical Perspectives from around the World (2001) 1, 5Google Scholar (making this point in relation to the tension between judicial independence and judicial accountability).

86 Ibid 5.

87 William, Rehnquist, Centennial Crisis: The Disputed Election of 1876 (2004) 229–35Google Scholar. The propriety of the extra-judicial service by United States Supreme Court justices during World War II was not undisputed at the time: see Alpheus, Mason, ‘Extra-Judicial Work for Judges: The Views of Chief Justice Stone’ (1953) 67 Harvard Law Review 193Google Scholar.

88 See, as raising a similar conundrum in a parallel context, Laurence, Maher, ‘Tales of the Overt and the Covert: Judges and Politics in Early Cold War Australia’ (1993) 21 Federal Law Review 151, 195Google Scholar. See also, as hinting at this issue, Murphy, The Brandeis/Frankfurter Connection, above n 26, 10–11. Of course, this issue arises whenever a High Court judge enters executive service, though the radical shift between what has been deemed acceptable in war, as opposed to peacetime, throws the spotlight on the former period.

89 Russell, above n 85, 23.

90 Geoffrey, Sawer, Australian Federalism in the Courts (1967) 165Google Scholar. Though a legal challenge could occur, especially today in light of expansion in the scope of justiciable controversies. Any suggestion that not all members of the Court had supported the decision of a particular judge to engage in non-judicial work might help prompt a legal challenge, though the converse would doubtless have a dampening effect on litigious fervour.

91 On the so-called ‘designated person’ doctrine, see Wheeler, above n 43.

92 See also Stone, above n 83, 242 arguing, in the United States constitutional context, that ‘we have a long history of over-reacting to the perceived dangers of wartime'.

93 (1916) 21 CLR 433.

94 (1915) 20 CLR 54.

95 (1942) 65 CLR 373.

96 (1915) 20 CLR 299.

97 (1943) 67 CLR 116.

98 [1942] AC 206. On Liversidge v Anderson and judicial review of wartime executive detention, see Lee, Emergency Powers, above n 83, 303–21 and generally Lee, ‘Salus Populi', above n 83, 62–6.

99 See also Mason, above n 87, 206 noting that in World War II, Chief Justice Stone of the United States Supreme Court resisted — with varying degrees of success — extra-judicial service by judges, in part because of the need to maintain the wartime operation of the courts.

100 Cheryl, Saunders, ‘The Uniform Income Tax Cases’ in H P, Lee and George, Winterton (eds), Australian Constitutional Landmarks (2003) 62, 74–6Google Scholar.

101 Ayres, above n 4, 134–5.

102 But cf ibid 130 (Dixon declining a wartime request to oversee compulsory Commonwealth acquisition of State railways on the basis that such action would inevitably result in High Court litigation).

103 See also Oliver, above n 17, 185 noting that one of the insights of Dick Latham's constitutional scholarship was, in Oliver's words, ‘that the (shifting) content of the basic norm is determined by the allegiance of the relevant courts'.

104 As Professor Geoffrey Stone has said of the observance of civil rights in the United States during war ‘[i]t is, of course, much easier to look back on past crises and find our predecessors wanting, than it is to make wise judgments when we ourselves are in the eye of the storm': Stone, above n 83, 245.

105 Letter (copy) from Richard Latham to Sir John Latham, 21 May 1940: Papers of Sir John Latham, NLA MS 1009/1/5460.

106 Macintyre, above n 17, 6.