The Latham Court: Law, War and Politics

The Latham Court’s constitutional decision-making was characterised by stark contrasts: deference to parliament and the executive during World War II followed by a vigorous approach to judicial review in the post-war period that saw the demise of key parts of the Chifley Government’s policy platform. Remarkably, the Court executed this dramatic shift in approach without significant damage to its legitimacy as independent arbiter of the Constitution. In this regard, the Latham Court exemplifies Galligan’s thesis that, for much of last century, the High Court used legalism as a shield to discharge its ‘delicate political function’ of judicial review ‘without becoming embroiled in political controversy’. Behind this commitment to legalism the Justices and the Labor Government were well aware that, in interpreting the Constitution, the Court was also a political body. While it is important not to overstate this point – the Latham Court’s opinions adhered to legal norms – this essay explores key aspects of the political life of the High Court in this tumultuous period of war and peace. Part II of this chapter considers the approach to legal reasoning in constitutional cases of the Latham Court’s two leading members: Chief Justice Latham and Justice Dixon. Against this backdrop, Part III examines the Court’s strongly deferential approach to constitutional decision-making during World War II. The extraordinary outcome in South Australia v Commonwealth (‘First Uniform Tax Case’) in 1942, in which the Court accepted that the Commonwealth could force the states from the area of income tax, is a focus of attention. Parts IV and V concentrate on the Court’s abrupt shift from deference to government during the war to its post-war activism. While on closer scrutiny this activism may not be as strongly countermajoritarian as is sometimes depicted, the Chifley Government was sufficiently concerned about the High Court’s outlook to seek to manipulate the composition of the Bench to Labor’s advantage. Correspondingly, there is compelling evidence that certain members of the Court took it upon themselves to passively resist – and in the case of Chief Justice Latham to work to actively defeat – the Chifley Government