Editor: by Michelle Arrow,
Publisher: NewSouth Publishing (University of NSW Press Ltd)
Reviewed by Brian Morgan

Through the experiences and eyes of some 23 well known women who came to prominence about the time of Gough Whitlam’s election in 1972, we gain what I will call a “mosaic”, that is, a composite picture of many of the activities and actions which contributed to legislative reforms enabling us to see how the role of women in Australia, generally, has, hopefully, improved immeasurably for all time.

Reading the various contributions which make up this book, the political leanings of some of the writers were quite evident to the extent that I found some comments distracted one from the interesting material otherwise contained in their papers.

Older lawyers are likely to remember the Matrimonial Causes Act 1959 and how its fault-based regime was replaced by a Whitlam government Act, the Family Law Act 1975 which provided for no fault divorce.

Hopefully, all of us recall how today the plight of deserted wives, single mothers etc is so much more bearable due to their gaining entitlement to benefits in 1973 but there is so much more of which these authors remind us:  child care, access to universities for all, encouraging a notion that men and women are equal, appointing females to major positions within the Government, demonstrating the worth of women by actions, not simply words.

All of these changed the lives of all women who, in the early 1970’s, were derided by a newspaper as sheilas: “$2M for the  Sheilas- Surprisingly it’s Not a Joke” and worse.

One cannot help but think of our first female Prime Minister Julia Gillard and of how she was so poorly treated by members of Parliament on both sides and trolls, which reminds us that the job started by Whitlam had and still has a long way to go.

The first Chief Judge of the Family Court was a woman, Elizabeth Evatt, whom I have had the pleasure of meeting on several occasions. I never appeared before her but I found her to be very erudite and a lateral thinker in her views on appropriate reforms and her ability to articulate these issues so that they were more readily understood. The paper by her contained in this book is, similarly, readily understood and poignant.  I commend her 11 page contribution to you, as remaining highly relevant in 2023. Of course, her appointment as Chief Justice of the new Family Court signalled the opening of opportunities which have now given rise to several Chief Justices, High Court Justices, Federal Court Judges, a Prime Minister and so on.

I don’t think anyone who reads this book would believe that these appointments were likely to occur without our having had a Gough Whitlam as Prime Minister.

The shame of it is that, 50 years later, there is still so much to achieve as demonstrated by a number of the contributors and which, I suggest, is self evident to all of us. And this is not to ignore the issues faced by First Nations women.

And, whilst Whitlam made no secret of his desire to achieve equality between men and women, this book demonstrates how short we, still, are of that mark.

The editor, in her Introduction, explains, “It is the first book about the Whitlam era to focus entirely on the government’s agenda for women: how it was shaped and enacted, what was gained and what remains to be done” (emphasis added).

Referring to this passage, this mosaic does achieve what its editor set out to do and, in so doing, it gives us a much greater insight into the role that activist women played in identifying, developing, encouraging and promoting the many changes in relation to women’s rights that were promoted by Whitlam. One can wonder at how much would have been achieved without their active involvement.

I conclude this review by citing part of the eulogy to Whitlam delivered by Cate Blanchett, (one of the contributors), set out at page 218:

“Women were probably the main beneficiaries of free tertiary education. So here today I may stand as an exemplar, but if you combine the modernising and enabling capacity afforded women by his legislations, you can begin to see that the nation was truly changed by him through the arts and through gender, thereby leading us towards an inclusive, compassionate maturity. So much of this achievement is directly attributable to policy initiatives Gough Whitlam began, with a series of reforms to extend the degree and quality of social opportunities to women in Australia”.

Author: Russell Marks
Publisher: La Trobe University Press in conjunction with Black Inc Books
Reviewer: Brian Morgan

This recently published book has done what I think all good books should do. It has made me consider or reconsider my position in relation to First Nations people and the way they have been treated by our legal system and how they are still being treated by it.

At the outset, let me say that I disagree with many of the apparent conclusions made by the author. This is not to say that one or other of us is wrong.

Russell Marks provides a great deal of information that is not otherwise readily available concerning various changes wrought by the criminal justice system to affect First Nations people from 1788 onwards. He summarises a large number of detailed examples so that one does not need to rely on his conclusions but can see at second hand that, from the earliest days, First Nations people (a term which I prefer to use to describe those who lived in Australia for many thousands of years) were treated as if the White Man’s law applied to them and that law was applied as if First Nations people understood the colonial concepts of right and wrong and accepted that the White Man’s legal system applied to them.

This was hardly ever likely to be true since the authorities who were running the system of justice had failed to understand that they had, themselves, invaded established civilisations in breach of the laws of those civilisations and purported not even to understand that the land they had stolen by armed force was both populated and ruled by sophisticated laws and customs.

As a result, there was little attempt by Courts and authorities to try to understand the traditional systems for dealing with members of various First Nations who transgressed. Rather, such people were and are, still, imprisoned in large numbers and frequently refused bail for minor offences where, by the time of trial, they may have served more time in prison than if they pleaded guilty at the time of their first appearance in a court. This raises the question, what is the basis for refusing bail to First Nations people when non-First Nations people would be bailed?

Marks makes the point which I have observed, myself, that, frequently, First Nations people will insist on pleading guilty, whether or not they might have a defence, in order to avoid being locked up pending a trial which, almost certainly, will take place months into the future.

(On the subject of the word “pleaded” the author frequently uses the Americanism “pled”. I found this to be most distracting.)

The role of police, from earliest times, in obtaining a written confession in the best Queen’s or, I should now say, King’s English from people who could hardly string half a dozen words of English, together, and Courts accepting these as genuine confessions took me back to my early days as a barrister before we had videoed interrogations when these were commonplace.

The written confession was in my experience, always, suspect. The author summarises many examples where no rational person could think that the words were uttered by the accused. In one such case, my client had not progressed beyond Primary school but was reputed to have said, “I hope the Court will be lenient on me. I am a first offender”. But, time and time again, Courts accepted the reliability of such documents. My jury did not.

The role of White Law in respect to First Nations people has been the subject of many inquiries, a Royal Commission or two and a large number of articles and papers. Many recommendations for change have been made but not implemented.

In 1978, I spent some time in the Northern Territory on one of the large cattle stations. There were many First Nations families living there and most of the men worked for that station. The no doubt well-meaning Government ordered that, instead of the ramshackle accommodation occupied by the workers, new white man style houses were to be built, with toilets, running water and the usual facilities.

Within a short time the roofing iron had been removed and those houses, or what remained of them, were of no use as dwellings. The former inhabitants had used the materials to rebuild the humpies in which they were most at home. One wonders to what extent the First Nations workers for whom the new accommodation was being built were asked about how their living conditions could be improved and, if so, to what extent their answers were heard and acted upon. 

If, in the mid 1970s, a government could still not understand that their wishes were different to “the natives”, how much more difficult was it, and is it, to appreciate how the colonial system of law and that of First Nations people are so different?

This book is informative. You might find yourself coming to the conclusion that we, as lawyers, whether prosecutors, defence lawyers, magistrates, judges or academics have yet to produce a satisfactory answer to this publication’s title, Black Lives, White Law: Locked Up and Locked Out in Australia and how the two are to be accommodated.

Not to underestimate the complexity of the task involved where First Nations people and people with diverse other heritage live among and interact with one another, perhaps, the words of the UN Declaration on the Rights of Indigenous Persons, to which Australia is a signatory,provide guidance with their emphasis on phrases such as “self-determination” and “free, prior and informed consent”.

Black Lives do matter as the author reminds us.

Author: Anthony Cooper
Publisher: NewSouth Publishing (UNSW)
Reviewer: Brian Morgan

If you have been to Darwin recently, I hope you managed to visit the Royal Flying Doctor Tourist Facility at Stokes Hill Darwin. This provides an interactive video and audio display of the first Japanese bombing raid on Darwin in February 1942.

I knew, before reading this book, that there had been later “visits” by Japanese fighters and bombers but I knew few of the details. In fact, I knew a number of the pilots who defended Darwin but, as most such people tend to do, these brave people dismissed their participation as being little more than “showing the flag”.

This book demonstrates that they did far more than that!

I don’t know and can’t comprehend how such detail has been captured, by the author, of the pilots’ sorties against Japanese Zeros and bombers during over 70 raids on the Darwin area during 1942-3.

There are a number of ways that one can interpret this book. One could focus on the suitability of the Spitfires for combat in such a tropical locality. Or, one could concentrate on the tactics used by the Australian aircrews, including their continued trust in the Battle of Britain “Big Wing” where fighters massed in a large assembly prior to seeking to engage an approaching enemy.

Or one could question why the Australians continued to employ certain air tactics when they had been shown, time and time again, to be of little use.

We could wonder at how inaccurate the pilots were when shooting their cannon guns or their .303 machine guns.

Or one could query the apparent lack of fighter combat training given, not only to the RAAF pilots but, also, to many of those from the RAF who were sent to assist in the defence of the Northern Territory of Australia.

Or, you, perhaps like me, feel that this book forces us to think about all of these questions.

I won’t spoil your enjoyment by discussing most of these points in this Review.

There is one comment that one of the pilots made to me in the 1970s which I think is self-evident from the book but which, I think, is worth explaining.

Imagine two aircraft approaching each other at a closing speed of 400-500 knots (about 200 metres per second). In order to hit an approaching aircraft an attacker would need to calculate where it would be when the projectiles reach it, as distinct from where it is at the instant that one fires. For, if you simply aim where the other aircraft is, by the time the ammunition reaches that spot, the aircraft is several hundred metres further on.

Furthermore, in such combat, two aircraft will rarely be heading directly for each other. Neither will they both be maintaining the same altitude so the attacker must also take these variables into account.

Anyone who has shot wild animals at a distance will have suffered the embarrassment of missing, due to not laying off to compensate for the wind strength and direction or the movement of the animal in the several seconds it takes for the projectile to reach its intended destination.

But the Spitfires were travelling a lot faster than a wild animal. The consequence of firing their weapons could cause the direction of the attacking aircraft to yaw to one side, particularly, if one or more of the weapons jammed and didn’t fire. One may observe that “dog fighting” is a skill which requires training and practice.

The Australian pilots did improve their gunnery and their tactics with practice and experience as demonstrated by the statistics gathered by the author. Perceived inaccuracy by the defenders of Darwin needs to be recognised in this context.

The author suggests that a comparison with the results from the Battle of Britain shows that the results achieved over Darwin were in the same league.

You don’t need to be a pilot to be fully engaged by this book. There are human interest aspects of it. One can almost feel the uncomfortable conditions that the pilots had to endure both on the ground and, often, a few minutes later, when flying at 30,000 feet where the temperature has dropped from, say, mid 30°C to below 0°C. One can empathise with their experiences, when not flying, of having to exchange their accommodation for safety trenches dug in the ground to avoid the bombs dropping from above. One can particularly feel for the experiences of the pilots from the UK in coping with such a radically different climate to that with which they were familiar, at home.

This book has somehow, as I mentioned earlier, managed to put together an enormous amount of detailed information concerning the tactics used by many of the pilots in the air. I do not doubt the accuracy of these descriptions but I shake my head at the amount of detail the author has been able to obtain. Darwin Spitfires gains much of its impact from its ability to present such detail.

Finally, this is an updated and improved version of an edition that was published about a decade ago.

The book has been described by retired Air Vice Marshall Weston as, “detailed, forensic and expert”. I, wholeheartedly, agree. I would add that it is a book which also enlightens us as to the actions of the RAAF in defending Darwin after that infamous Japanese raid in February 1942.

Author: Tom Frame
Publisher: NewSouth Books
Reviewer: Brian Morgan

How often do we hear that hindsight gives 20/20 vision? Well, by reading this book, it is so easy for us to recognise and become experts on the Afghanistan conflict. I had thought, for some years, that this was a conflict in which Australia could never hope to achieve its objectives and, now that the Taliban have returned to power, I am even more certain that I was correct.

This book does not simply focus on the involvement in Afghanistan of Australian Special Forces. For completeness, it traces the history of our armed forces from the time of Gallipoli, the development of Australia’s Special Forces, the evolution of the Taliban and, if I may use my own term, the role of those Special Forces in Afghanistan.

A book such as this, would not and could not be complete without reference to the Laws of Armed Conflict and the Rules of Engagement. To quote the author from page 210:

“Every Australian officer and soldier deployed to Afghanistan knew that some conduct was prohibited and illegal … civilians were not legitimate targets and could not be attacked under any circumstances … Australians were entitled to engage combatants, including members of insurgent groups, even if they were not in uniform”.

A former client of mine who served in Vietnam told the story of how their group were on RnR in Saigon and were served by a pleasant young man in a restaurant. A week or so later, they saw him but, this time, he was shooting at them.

I repeat this story (whether it is true or apocryphal) because of a major problem that I observed in reading this book, namely, the difficulty of identifying when a person was a “civilian” and when he or she was a combatant. I think this concept is also inferred in the title of the book in the use of the term, “veiled”.

The book examines the “context, explores the operations, and traces the events that led to Australian soldiers being accused of war crimes in Afghanistan”. The author has intentionally avoided discussing the Brereton report findings and ceases his observations the day before its release. Similarly, this book is not an attempt to visit the evidence in the recent long running defamation action by Ben Roberts- Smith.

What it does do is throw more light on why Australia was in Afghanistan in the first place; what its role was intended to be from time to time; and the negative effect of what appears to me to have been sensationalist and salacious journalism with often little to no evidence to support its allegations but which, over time, did uncover and publish apparently damning evidence including helmet camera video.

I do not think that any discussion of the Afghanistan war would be complete without identifying the sort of enemy with which one had to contend, both in the case of the Afghanistan army which, as allies, were, at times, unable to be relied upon, and in the case of the declared enemy, the Taliban, who were often farmers by day and fighters by night.

To give a greater understanding of what confronted soldiers in Afghanistan, the author took a close look at some allegations involving New Zealand elite soldiers and, specifically, looked at the UK matter of Blackman who killed an injured Afghani person but did so as a result of the pressure  on him and his colleagues of multiple demands which, almost certainly, caused him to act contrary to his normal self and lose his self-control.

I found this part of the book to be very worrying. It reminded me of soldiers I have known who have been able to handle unreasonable pressure and others who have not been so successful and have suffered a physical or mental breakdown because their superiors refused to recognise their fragile condition.

Blackman spent more time in prison than many of the IRA members convicted of murder. There remained ongoing community concern at the lack of understanding of what drove him to take this action which was demonstrably completely out of character.

The author looks at the Canadian Special Forces who fought in Afghanistan and their political masters who seemed to me to be much more aware of the risks of misconduct arising when troops fight in an unpopular environment with less than adequate support.

By the end of the book, I think that you will, like me, accept that there were acts of misconduct by Special Forces (including Australians) but that these need to be placed in the context of people being sent on numerous tours of duty to a war where they were continually confronted by a hostile populace; given little support by their superiors; and, probably, wore the opprobrium of fighting in a battle in which no one, except their political masters, wanted them to fight.

This is an extremely well-researched and wellprepared book by an author with a deserved international reputation for historical analysis.

 It makes for thought provoking reading whether you are or have been involved in the military or whether you simply want to obtain a greater understanding of what was expected, behind the scenes, of our elite soldiers in Afghanistan.

I thought the evidence was such that many of the allegations lacked substance despite being good fodder for journalists. However, as I said earlier, I could not help but accept that some of the allegations of misconduct appeared to be justified.

What conclusions would you draw?

Author: Professor Henry Reynolds

Publisher: NewSouth Publishing

Reviewer: Brian Morgan

I have met some wonderful people some of whom have white skin. Some have been Indigenous Australians, others, Native Americans and others have been of various races and creeds.  All Australians know that Ash Barty is an Indigenous Australian. And Indigenous Australians who play sport at a high level are appreciated by their teammates and fans as equal to or better than many of their teammates.

Today, it seems that an Indigenous Australian who excels at sport is “one of us” but such attitudes do not, necessarily, extend to Indigenous Australians who are not famous for their sporting or artistic prowess? What about the appalling treatment of Indigenous Australians who fought in the military for their country but were, on their return, treated as second class? And what about the way in which the owners and original occupants of this land were treated from 1788?

 Nearby to where I live in Maleny, Queensland, is a wonderful reserve, the Mary Cairncross Scenic Reserve. We are blessed to have Uncle Noel, an aboriginal elder, attend the various functions and events held there and oversee a welcoming ceremony. One can walk into that reserve and feel an immediate sense of belonging to the land, not owning it but being a part of it.

So, whenever I have cause to read or think about our history and how we treated the (earlier) inhabitants of this Country, I feel inadequate.  I look for more information to help me to understand the reasons behind the murder, displacement and inhumane treatment of those who were here before any European.

Professor Reynolds, whom I have met briefly, several times over the years, is an acknowledged historian of early Australian history.

There is much history which explains the UK Government’s attitude to its occupation of Australia which is largely unknown and would remain so except for this excellent work.

Most of us have come to understand that it was the first white settlers who believed that they were the “owners” of this Country and their treatment of those, already living here, was based on that principle but, by any standard, the treatment of those long term Australians was reprehensible and, I suggest, unjustified in law.

In order to gain a better understanding of this history, Professor Reynolds has, in his usual manner, meticulously, identified, studied and collated much of the early correspondence between London and the State Governors; looked at why those Governors behaved as they did; and  has left us with a sense of disbelief that the new settlers sought to dispossess those who had lived here for many Centuries, by the simple means of claiming the land by posting a flag.

I warn you that, as a lawyer, you will find yourself shaking your head at the lack of logic and the wilful ignoring of legal advice received from renowned lawyers such as Emerich de Vattel who, as early as 1758, said:

“The conqueror takes possession of the property of the State and leaves that of individuals untouched.”

The author adds the comment that the citizen caught up in a war of conquest suffers only indirectly because it merely brings them a change of sovereigns.

This theme was continued by Chief Justice Marshall of the United States Supreme Court in 1833 when he said:

“The modern usage of nations, which has become law, would be violated; that sense of justice and right which is acknowledged and felt by the whole civilised world would be outraged if private property should be generally confiscated, and private rights annulled. The people change their alliance; their relations to their ancient sovereign is dissolved but their relations to each other, and their rights of property remain undisturbed”.

Imagine, if you would, a ship load of foreign sailors landing in England in 1770 planting a flag and declaring that their Country is now the owner of Great Britain.

So, what is the difference? The answers to this question are, I suggest, revealed by this book.

That question and its answers tend also to explain the differing attitudes towards what we have come to call Australia Day, the 26^th January, and why the traditional owners of Australia do not think of it as a day to rejoice.

Other countries were “settled” (my term), peacefully, and with the use of treaties. So why did this not occur in Australia? An Australian lawyer writing in 1847 declared:

“Successive Secretaries of State … have repeatedly commanded that it must never be forgotten ‘that our possession of this territory is based on a right of occupancy’.

A ‘right of occupancy’! Amiable sophistry!…….on what grounds can we possibly claim a right to the occupancy of the land?”

I suggest that this statement is as apposite today as it was then.

I do not find myself able to accept all the conclusions expressed by Professor Reynolds in this book, in particular, the criticisms of Sir Samuel Griffiths who when, as Attorney General of Queensland and later, is accused of being complicit in killing of Aborigines and personally responsible for it. I think that this accusation is made on the basis of his membership of Cabinet and later as Chief Justice of the High Court but, to me as a lawyer, this is drawing a long bow.

This book will, I am in little doubt, better inform you. It will require and allow you to re- consider your position in relation to the whole question of Aboriginal rights in Australia and the legality of their treatment even extending to the present time and it will help you to gain a better understanding that, if the occupants of the land were warlike, it was for the obvious reason of the need to protect their own land and culture. On the other hand, as the author suggests, if someone invaded our Country and sought to take it by force, what would we do? Surely, we would do our best to defend our rights.

Author: Jennifer Down
Publisher: Text Publishing
Reviewer: Brian Morgan
427 pages

Some people never have a chance in life. They are born into a dysfunctional family; for one or other of many reasons, they end up in foster homes; they become addicted to alcohol and/or drugs at a young age; they drop out of school; and, by early adulthood, they have probably lost any chance of having a successful life.

Bodies of Light, a challenging book, is a story of just such a girl. She was clearly intelligent; was able to complete her schooling; she gained entry to University; but it didn’t take long for her past and her addictions to catch up with her.

Imagine losing three children in succession to what, today, we would call Sudden Infant Death Syndrome. And then to be charged with their murders in circumstances where there would seem to have been no evidence of a crime but, rather, an inordinate focus on the coincidence that the three babies died, two of them when her husband was also home and the third when she was alone.

I found this one of the most confronting stories that I have read in a long, long time. I could not help but think of the many children for whom I had acted for (and against some, as well) and how most of them were never able to escape their past.

The author has received a great deal of praise for her writing, praise with which I agree. She has written a tear jerker but one which has the additional dimension for lawyers of causing us to feel frustrated, helpless, angry and perplexed all at the same time.

As far as I know, this is a work of fiction but it is so close to examples that I have seen that my reaction to it was to assume that it told the story of a particular person. Perhaps, it is part of the gift of the writer to induce us to believe that their imaginings amount to a factual account of an unknown person.

Two days ago I was at a luncheon at Point Cartwright near Mooloolaba and met a young family for the second time. They have a non verbal daughter of about 8 years old (my estimate) who needs full time care, which she receives. I had almost completed reading this book and could not help but think that this young one also has little chance in life for quite different reasons.

Be warned. This book will challenge you and, if you work in the field of children, it will, I suspect, cause you to think more carefully about some of your clients and how life has dealt them such a cruel hand.
One reviewer has described this as “a novel with immense dignity and heart”. I wish I had thought of those words as they sum it up in a nutshell.

Brian Morgan
Maleny
22 March 2022

Author:       Peter Monteath
Publisher:  New South Publishing

This recently published book is an historical account which presents a most accurate picture of the fight, predominantly by the Australian and New Zealand armies, to try to repel the German invasion of the island of Crete in May 1941.

Over the years, I had heard quite a bit about this battle from the point of view of people who lived in Crete, at the time. This book, however, gives a much more detailed and vivid picture.

The title comes from the name given to the location of one of the greatest battles where the Anzacs shone most brightly.

One could not say that this is background to the book, as my impression is that it is a major facet of it, but the Australians and the New Zealanders, particularly the Maori soldiers, demonstrated that, in ground skirmishes, the bayonet was every bit as successful as the German Stuka dive bombers were in the air.

The author presents a graphic picture of how the Maoris used the Haka very effectively prior to going into close battle with the German troops and how the bayonet was both psychologically and physically such a useful weapon at short range. Often their enemy turned and ran to avoid the bayonet-wielding Anzacs.

It is not difficult to imagine the fear that the Anzacs, themselves, must have felt when they were subjected to paratroopers descending on them, all the while also being attacked by the Stuka dive bombers. Most, if not all, anecdotes that involve these aircraft make mention of the terrible noise that they made as they descended at high speed to strafe the unfortunate people on the ground. What I did not know, until reading this book, was that this noise was caused by a device specifically installed in order to intimidate. I saw resemblances between the Haka and these “Jericho Sirens” as, in its own way, each was intended to cause the same result in their enemy.

I will never again look at a Haka, prior to a sporting event, without gaining even more respect for it.

The book follows the fight for Crete which, history shows us, was won by the Germans. Many Anzacs were left behind, some to become prisoners of war and others to live in the forest either to try to find their way back to friendly territory or, in many cases, to later surrender due to poor health, lack of food etc.

I read this as an e-book which proved to be a convenient way of accessing and enjoying the book.

It is extremely well written, by which I mean that the style makes for easy reading, the content is detailed without ever becoming boring and the author’s tactic of following the history of a number of the officers and other ranks, both through the battle for Crete and into later life, provides additional perspective. As well, the book is written with many references to German strategy of the time, an account of the mistakes made on both sides and, perhaps, identifying how errors on the Anzac side contributed greatly to the defeat at a time when, we can now say with hindsight, victory was in the Anzacs’ grasp until the baton was dropped.

Author:        J.M. Bennett, R.C. Solomon
Publisher:  The Federation Press

This is the final in a long list of “Lives of Australian Chief Justices” which have come from the pen of Dr. Bennett, this time, in conjunction with Dr. Solomon.

I have found all these studies to be enthralling to read, for different reasons, and this one is no different.

Any history that relates to the practice of the law is, to put it mildly, interesting.

Sir Francis deserves greater recognition in the profession than has occurred, having been Crown Solicitor, Solicitor General, Attorney General, State Premier, puisne Judge and Chief Justice of Tasmania. Indeed he was the first person in Australia to be both Premier and Chief Justice.

He was, by birth, part Haitian which gave him darker skin than others, providing some of his detractors with ammunition to deride him by several epithets which were not only untrue but completely unwarranted.

His success at the Bar provided ample reason for him to be widely respected. It would seem that he had a quick temper which, on more than one occasion, caused him trouble. As with many of the early judges, the press would often take sides, either with the judge or against him, and there were always detractors who must have made his life a misery at times. But particularly as a Judge and as Chief Justice, he denied his detractors any fuel for their behaviour by ignoring it. Imagine repeated articles denigrating you, in a daily newspaper.

Not a great deal of information has survived from which we can determine his honour’s skill but the authors have found  some material which shows that he was very astute in considering English authorities and applying them when necessary, bearing in mind that there must not have been many legal libraries in Tasmania at the time. The material referred to demonstrates impartiality, fairness and outstanding respect from the Bar.

His honour had two brothers who were also admitted as barristers. Neither of them enjoyed the same degree of success and their behaviour led them into trouble, being of a matrimonial or financial nature. Remaining aloof as a judge must be difficult enough, but trying to help family caused conflict which could have prevented his advancement, although it does not seem to have done so.

Sir Francis is little known even in his own State and the authors make a valid point, in my view, in suggesting that there should be some form of memorial to him, even now, as, I suggest, a means of encouraging future lawyers to find out more about him.

One cannot help but enjoy reading about the lives in the law that preceded ours. As an example in this book, the public would have little knowledge of how hard and demanding life at the Bar can be. Indeed I know prospective Readers who propose to move to the Bar because they think they can work their own hours. Those of us who have, or have had, busy practices, know that this could not be further from the truth. Similarly a lot of people remain under the misapprehension that judicial life is undemanding and does not require long hours of work.

This book demonstrates, once again, how busy a life some people live, occupying a variety of positions within the law and often, in different pursuits. Imagine trying to be a State Premier and simultaneously maintaining a practice as Attorney General and, apparently, a limited private practice at the Bar.

To conclude therefore, I urge any practitioner with the slightest interest in Australian legal history to read this book and the 16 studies preceding it.

Edited and Annotated by Philip Ayres
Publisher: Federation Press
Hard Cover, 392 pages

Recently I had the pleasure of reviewing the third edition of Jesting Pilate. This book that I am now reviewing describes another part of Sir Owen’s life, ie, his time in the United States during WW 2.    

Sir Owen was appointed by the Australian Government to represent it at the highest level in the United States, five months after Japan attacked Pearl Harbour.

My first observation is the frequency with which Sir Owen kept in communication with his brother judges on the High Court. I have heard it said that his Court was very collegiate and although we are not told the content of his communications, their frequency bespeaks continuing close friendships. I noted that, on a return trip to Australia, within a day or so, he called on his brother judges.

The next observation I make is just how busy and demanding was this job. There were almost daily lunches, cocktail parties and dinners which seemed an accepted method of mixing during these times of war. But, as well, almost every day (including weekends), Sir Owen called on people and/ or had a multitude of visitors. He frequented the White House and had many meetings with the President. It seems evident that he quickly learned the art of diplomacy. There was no doubt that he was trusted and told things in confidence, a confidence which he did not abuse.

Two of his major tasks, which remained ongoing throughout his period in the United States, were to push for greater lend lease facilities especially aircraft to be provided to Australia and to gain an understanding from time to time of the thinking of the various leading world figures with whom he came into contact in order to keep the Australian Government well informed. Equally importantly, it was expected that he would try to influence that thinking towards the line of Australia’s views and policies.

When Sir Owen was asked to take leave from the High Court, he accepted only on the condition that his communications would be direct with the Prime Minister of Australia, allowing him to bypass Dr. H.V Evatt, the Minister to whom otherwise he would have reported. He and Evatt had previously sat together on the High Court. I think it is fair to observe that Sir Owen did not have a great liking for Dr Evatt. Indeed, my impression is that, at times, Dr Evatt seemed, intentionally or otherwise, to be trying to undermine Sir Owen’s work in the United States. Again, on a return trip to Australia, the Prime Minister agreed to reduce or remove the opportunity for Evatt to limit Sir Owen’s work.

In reading these diaries, which were never intended to be published, one cannot help but appreciate the added pressure on Sir Owen of the presence of his extended family with him. There are references to family illnesses getting him up early, notwithstanding that he had a full day of meetings. There were also many visits to hospitals whilst one of his sons was being treated for asthma and probably pneumonia. Another son had a serious eye condition. Sir Owen had to balance his heavy official workload with the needs of his continuing close relationship with his whole family.

Sir Owen was not regarded as having a great sense of humour on the bench but he clearly had one as demonstrated by his comment during a discussion about the reform of a moral delinquent  that such stories reminded him “of the cannibal chief who lost his teeth and became a vegetarian”.

My final observation is how Sir Owen went out of his way to meet and mix with colleagues in the legal profession during this time, ranging from law professors to judges both in the United States and, in particular, neighbouring Canada. He also made it his business to meet governors and politicians, not only in Washington DC where he was based, but in other States as well. Within a day of returning to Sydney during his United States sojourn, he was at the Courts!

Oh and, on his final return to Australia by ship, what did he read but one textbook on Torts and another on Conflict of Laws, again, demonstrating that he continued to regard himself as a student of the law (a reference to which was in my earlier review of Jesting Pilate).

One could write many pages about this book. Because I have a deep interest in history, it was particularly interesting to me. But anyone reading it will, I believe, be struck by the “names” who regularly appear, about whom we know so much and who, in the next generation, remained family names in this country, at least, and whom we have come to know and respect in legal, vice regal and political circles. From Churchill to FDR, and on to Gromyko, whom the book describes as one of the most able and long serving USSR diplomats (and whom many of us will remember from subsequent news reports of his activities), the Diaries are full of the “who’s who” of the world at that time.

This is a book which needs to be read over several days to give the reader the opportunity to digest its contents. I found it of immeasurable interest. I hope you will too.

By the Right Honourable Sir Owen Dixon 3^rd Edition 

Editors: Susan Crennan, William Gummow

Publisher: Federation Press

Reviewer: Brian Morgan

The first legal book that I ever acquired, in 1966-7, was the first edition of this magnificent record of an outstanding man and judge. Many years later, it was taken from my library and never returned. I was therefore more than delighted to be given the opportunity of reviewing the Third Edition as I deeply regretted the loss of its predecessor.

Sir Owen is renowned among lawyers, throughout Australia and elsewhere, as having possessed one of the keenest legal minds, not only of his time, but, I suggest, of Australia’s period of self-government.

The fact that he was asked to occupy various non-judicial positions during WW2, whilst taking leave from the High Court as well as the fact that he became highly respected by both English and American judges and political leaders are additional testaments to his abilities and intellect.

Very few Australians could say they were on friendly terms with one or more American Presidents and British Prime Ministers.

I have had the good fortune to have been led by several contributors to this edition such that I now regret not discussing Sir Owen with them. (If only I had known of their closeness to him).

Sir Owen was born in 1886, the son of a lawyer. His father had to retire from work early as the result of almost completely losing his hearing. This affected the young Dixon as he, as the only son, needed to provide financially for his parents. It is clear that he remained close to them. Despite his father’s deafness, they would discuss an upcoming case by standing face to face so that his father could hear what he was saying.

Sir Owen first appeared as counsel in the High Court within two years of his admission to the Bar.

Biographical details give a small insight into Sir Owen. He clearly enjoyed the outdoors in the pursuit of what we now refer to as “bush walking”. My impression, from some of the stories shared in the book, is that he took risks, perhaps, unnecessary ones, to the dismay of his companions. I suspect his mind was elsewhere and he failed to realise the seriousness of the situation.

But this review is of Sir Owen, the judge, and his profound influence on the interpretation of the law in Australia, the United States and the United Kingdom.

The third edition consists of a series of introductions which set the scene for the later chapters.

The chapters comprising “The Dixon papers” include “Dixon in the wider world”, which provides an outline into his honour’s duties during WW 2 and his contact with FD Roosevelt and Harry Hopkins as well as the Hon. Felix Frankfurter of the United States Supreme Court. The Dixon papers also include “Judicial methods” which extends to a consideration of the development of the law of homicide and the M’Naghten Rules as to insanity.

They also include “Constitutionalism”,“Comparative Federalism”, “The Professions” and, finally, a series of addresses by his honour, under the heading “From the Bench”.

My only criticism of the text concerns presentation. As someone who does lots of his reading on planes, I found the size of the font used to be quite difficult to read.

This book should be compulsory reading for every student of the law (the description given by his honour of his occupation when first acquiring a civilian passport after retiring from the Bench). We live in busy times but we can all devote sufficient time to read what is, perhaps, the most instructive legal biography eve published in this country.

Sir Owen’s paper on ethics as counsel remains a model for us to follow.

The first edition of this text had a profound impact on me and my career in the law. This edition, I am sure, will have a similar effect on any practitioner or student who reads it.

I think Sir Owen may have been surprised had he lived to see that his concerns about expert witnesses giving scientific evidence, expressed at page 138 of Jesting Pilate, had been recognised by others and, perhaps, led to the concept of “hot tubbing” which is now common, at least in the Federal Court.

One cannot help but admire the quality of Sir Owen’s writing, including his clear, precise style while still using an expanded vocabulary. Many words used as a matter of course by Sir Owen have all but disappeared from use, today. Despite this, Sir Owen’s style is not dated. The impression sustained by the reader is one of eloquence. Neither is the content dated since many of Sir Owen’s observations remain just as apposite today as they did at the time of writing. For example, in 1944, Sir Owen said:

“I believe that the central point of Australian political beliefs has been faith in the soundness of the opinion of the majority of the electors as a means of solving any large political question, and the need of providing constitutional machinery to ensure that, when the occasion demands, the opinion of people is ascertained, and when ascertained is carried into effect”.

The United Kingdom probably needs such a reminder as it seeks to decide what to do about Brexit. Similarly, the people of Australia will, I hope, shortly, have the opportunity of deciding how the place of Indigenous Australians in contemporary Australian society should be reflected in Australia’s Constitutional arrangements. And, next year, the Constitutional machinery of the United States will, hopefully, be directed to giving effect to similar sentiments.