The Parallel Ambitions of Menzies and Evatt: Part I

Professor Geoffrey Blainey has unsurprisingly favoured readers of Quadrant (October 2023) with a very informed review, “The Great Bitter Rivalry”, of a very informative book, Anne Henderson’s Menzies versus Evatt: The Great Rivalry of Australian Politics (Connor Court, 2023). I propose to cast a few shafts of light on their contributions.

Both authors traced the origins of Robert Gordon Menzies and Herbert Vere Evatt from modest provincial backgrounds in Victoria and New South Wales respectively through scholarships to outstanding degrees in Law and, in Evatt’s case, in Arts as well. I begin with the Engineers’ Case—their first encounter as barristers, I believe.

On May 24, 1920, Menzies, aged twenty-five, appeared before the High Court in Melbourne arguing that a trade union client be brought within the Constitution’s conciliation and arbitration power. Forty-six years later, Menzies recalled Starke J and Knox CJ asserting that his argument was nonsense, whereupon he promised to argue sensibly if permitted to question the Court’s past decisions. The Chief Justice adjourned the case to Sydney, permitted counsel to question the Court’s previous decisions, and notified state governments. Menzies recalled that in Sydney he faced “a thickly populated” and from his “lonely point of view hostile Bar table”. Sir Edward Mitchell KC and J.G. Latham represented the Victorian, South Australian and Tasmanian governments, while George Flannery KC and H.V. Evatt represented the New South Wales government. Wilbur Ham of the Victorian Bar, Menzies’s only opposite number in Melbourne, represented the Minister for Trading Concerns of Western Australia. While all these luminaries were arrayed against Menzies, he was not entirely alone. Frank Leverrier KC and H.E. (later Sir Henry) Manning intervened on behalf of the Commonwealth.

Drawing on the notebooks of Sir Adrian Knox and Sir Isaac Isaacs, Sir Gerard Brennan observed in 1995 as Chief Justice:

… it seems quite clear that Menzies lit the fuse in Melbourne, though the main charge for exploding the notion of reciprocal supremacy seems to have been prepared by Isaacs and Rich JJ in the Municipalities Case (1919). Yet it was Leverrier’s advocacy which seems to have had the greater impact.

But the Court, in their response to Menzies’s lighting of the fuse, had revealed that they were prepared to depart from past authority. The greater challenge therefore confronted those briefed to argue against this departure from precedent.

Sir Edward Mitchell KC, leader of the Victorian Bar since 1913, towered in physical presence but was ponderous and prolix in presentation. His appointment in 1918 as a Knight Commander of the Most Distinguished Order of St Michael and St George (KCMG) was an unusual distinction for a barrister. George Rich, a High Court judge since 1913, was appointed a KCMG as late as 1932. On learning of a looming appearance by Mitchell, Rich J was overheard muttering, “The long (k)night cometh when no work is done”, citing St John’s Gospel 9:4: “… [t]he night cometh when no man can work.” Rich J esteemed Leverrier as “my oldest friend … and a man of outstanding ability”. Yet the fact remains that Menzies alone had the right of reply and was the sole counsel for the successful party.

Could a clairvoyant have foreseen then that he would establish a record-breaking term as Prime Minister? And that Flannery KC’s junior, after a distinguished ministerial career as Menzies’s rival during his wilderness years, would as his opposite number be thwarted in his attempts to displace him as Prime Minister?

An elderly Menzies recalled that the Chief Justiceship of Victoria was the pinnacle of his youthful ambition. This implied that a High Court appointment was less appealing. Menzies’s career until 1934 seems to me to have been guided solely by that ambition. It was to resurface in 1944 when Menzies, a former Prime Minister, had raised himself slightly from the nadir in his fortunes in 1941.

Menzies was called to the Bar on May 13, 1918, in the shadow of two events. On March 10, Sir John Madden, Victoria’s longest-serving Chief Justice, died suddenly and was succeeded on April 9 by Sir William Irvine. Like their predecessors, Madden and Irvine had earlier been involved in politics. Menzies might have assumed then that his own political involvement need not rule him out from the Chief Justiceship. Irvine was a former Premier, Commonwealth Attorney-General and from 1906 federal MP for Flinders. A Nationalist Party preselection preceding the Flinders by-election caused by Irvine’s judicial appointment was contested by Sir Edward Mitchell but he, long-winded as ever, talked himself out of it. The successful candidate, Stanley Melbourne Bruce, as recorded in Dyson Heydon’s excellent article (Quadrant, November 2023), was a Gallipoli veteran decorated with the Military Cross. The French awarded him the Croix de Guerre avec palme. In less than five years S.M. (later Viscount) Bruce replaced W.M. “Billy” Hughes as Prime Minister.

Anne Henderson emphasised and Professor Blainey referred to Menzies’s “exceptional web of political links”. After 1918, however, that “exceptional web” was no longer serviceable. His uncle Sydney Sampson held the federal seat of Wimmera from 1906 until 1919. Robert’s father James held the Victorian state seat of Lowan from 1911 until 1920. And Menzies’s future father-in-law, John Leckie, held the Victorian state seat of Benambra from 1913 to 1917 and then the federal seat of Indi until 1919. All three were defeated by candidates endorsed by the Victorian Farmers’ Union, as the Country Party was then known. Such setbacks would have discouraged Menzies from entering politics precipitately. He would have noted the Country Party’s emergence in Victorian politics as a destabilising force: it was to endure as a malign influence.

In 1925 Evatt was elected Labor member for the state seat of Balmain. In 1926 Menzies made a brief foray into politics. As Heydon recorded, S.M. Bruce promoted a referendum to vest the Commonwealth with exclusive power in conciliation and arbitration. Menzies eloquently assisted those who campaigned successfully against it. R.G. (later Lord) Casey recalled that Bruce thereafter would greet Menzies with raised eyebrows.

In 1928 Menzies stood for the Nationalist preselection for the East Yarra Province in the Victorian Legislative Council, but was defeated by George Swinburne, formerly an MLA and Minister. Menzies succeeded Swinburne on his death in October 1928. Later that year Sir William McPherson appointed him a Minister without Portfolio in his short-lived government but in 1929 he and two others resigned over a concession to the breakaway Country Progressive Party led by Albert Arthur Dunstan and known as “the four black crows”. In the state election of December 1929 Menzies entered the Legislative Assembly but his party went into opposition. The United Australia Party, which was to absorb the Nationalists, was not elected to office until 1932. Meanwhile Menzies in 1929 had taken silk to become Victoria’s youngest King’s Counsel. Bert Evatt, “the Doc”, also took silk in 1929.

In 1930 the federal Labor Caucus improperly forced the Cabinet to fill two High Court vacancies. The Prime Minister, James Scullin, and his Attorney-General, Frank Brennan, were overseas so their outspoken opposition proved futile. The appointments were Dr H.V. Evatt KC, no longer an MLA, and Edward Aloysius McTiernan, federal member for Parkes since 1929. J.T. Lang had twice appointed McTiernan New South Wales’s Attorney-General but, as an undistinguished junior, his elevation to Australia’s highest court was plainly unacceptable. These controversial appointments provoked a public outcry. Owen Dixon, Menzies’s friend, former pupil-master and a High Court judge since 1929, contemplated resigning in protest but Hayden Starke dissuaded him. Despite this, Menzies wrote Evatt a congratulatory letter in which he recorded the Victorian Bar’s distaste for McTiernan. Menzies apparently did not question Evatt’s qualifications. He might also have favourably noted Evatt’s open hostility to Jack Lang, which was fully reciprocated. This letter discloses a civility which was not to linger.

The 1932 Victorian election enabled Sir Stanley Argyle to form a ministry dominated by the UAP but with a small number, including Albert Dunstan, from the United Country Party, as the Victorian Country Party was named after uniting with the Country Progressive Party. Menzies was appointed Attorney-General and Minister for Railways. The Railways portfolio required him to curtail his Bar practice significantly. I would maintain that he still yearned to be Chief Justice, but his prospects were contingent upon Sir William Irvine’s death or resignation. Irvine’s entry in the Australian Dictionary of Biography concluded:

He allowed himself to remain too long in office and had in his late seventies to be prompted by a colleague to resign. His inattentive afternoons and his increasing forgetfulness had become excessively embarrassing. His resignation took effect on 30 September 1935.

Menzies, as Commonwealth Attorney-General from October 12, 1934, ruled himself out as Irvine’s successor. Yet if Irvine’s resignation had taken effect before August 1934, Menzies, as Victorian Attorney-General, might have successfully pressed his claim to succeed him. He could have argued that if Evatt could be appointed to the High Court aged thirty-six then he, being no less gifted and qualified, could in his fortieth year be appointed Chief Justice in a subordinate jurisdiction. The great rivalry might then have been revealed in Evatt J’s judgments on appeal from those of Menzies CJ.

John Greig Latham, Attorney-General and Minister for External Affairs from 1931, announced before the federal election of September 15, 1934, that he was quitting politics. After declining a Victorian Supreme Court appointment in 1921, Latham had been elected for Kooyong as an independent in 1922 and was later adopted as a Nationalist. He had maintained a lucrative practice as a KC even after Bruce appointed him Attorney-General in 1925. The federal Parliament’s move to Canberra in 1927 changed his situation dramatically. With his practice drastically reduced, Latham had to rely on his ministerial salary. The Bruce-Page government’s defeat in 1929 reduced him to a private member’s salary even as Leader of the Opposition. His appointment as a Minister in the Lyons government in 1931 did not improve matters. Sir Maurice (later Lord) Hankey, Secretary to the British Cabinet, observed of Latham in 1934 that he was “poor but extravagant”.

Menzies was at first uninterested when the Prime Minister, Joe Lyons, suggested that he contest Kooyong. Latham’s experience in federal politics had greatly discouraged him. From September 1934 Menzies’s practice as Latham’s successor was to fall away as Latham’s had. Barely overcoming his many hesitations, he resigned from the state parliament in August and was returned for Kooyong. Lyons honoured his promise by appointing him Attorney-General and Minister for Industry with the succession to him as an added inducement. But what if Menzies had persisted in declining to contest Kooyong and had remained in Argyle’s ministry?

In early March 1935 the Argyle ministry faced the electors. During Argyle’s policy speech all ministers, UAP and UCP alike, demonstrated their solidarity by sitting behind him. The election result was accepted as confirming Argyle in office. Then some complicated and questionable manoeuvres resulted in a spectacular volte-face. The UCP led by Dunstan withdrew from the Argyle government on March 19. On March 28, Dunstan shamelessly but successfully moved a no-confidence motion in an all-UAP ministry Argyle had formed and in those UAP ministers only so recently his colleagues. Then, as Premier, Dunstan triumphantly led a UCP minority government supported by Labor while consigning a still dumbfounded UAP to the opposition benches. To many observers such a treacherously motivated mésalliance could not last; but it did for the next seven unforgiving years! Finally deserted by Labor, Dunstan in 1943 connived with the UAP, later the Liberals, to form a composite ministry which proved to be envenomed and turbulent: it ended in confusion in 1945.

Suppose Menzies, still an MLA, had joined Argyle in opposition in 1935! He would thereupon have found himself matching wits with the wiles of a peasant-cunning country bumpkin like Dunstan.

Parliamentary debates would have resonated with Menzies’s well-modulated and rounded periods offset by Albert’s piercing staccato nasal squealing. Such a spectacle might have added to the gaiety of nations but to little else. While Menzies’s Bar practice might have flourished, his political fortunes would have faded. Observing the dispiriting political landscape in Victoria after 1934, Menzies, for all his triumphs, tribulations and vicissitudes while in federal politics, must surely have thanked a benign and merciful Providence that with only a few months to spare he had effectively if reluctantly ejected himself from a bearpit Dunstan was to dominate for the next ten years.

Before signing off on Albert, with some relief, I shall quote my entry on him in the Australian Dictionary of Biography. Those reading that entry could have pictured me while writing it with a peg firmly clamped upon my nose. Herewith my concluding paragraph:

Whether he was in the leadership of the Country Party or out of it Dunstan seemed to hold the key to its fortunes. Moreover, he seems to have been pivotal to the chances and changes of Victorian politics over thirty years. He might well be judged to have lacked statesmanship, but statesmanship was not the key to survival in Victorian politics, and Dunstan was without peer in his ability to survive.

I should add that, compared to Daniel Andrews of recent inglorious memory, squealing Albert as a Premier emerges squeaky clean.

Because it so closely involved Menzies, I feel I must expose a malicious yet persistent old furphy to a truth-revealing blowtorch. Professor Stuart Macintyre approvingly skirted over it in his Australian Dictionary of Biography entry on Latham while Gough Whitlam at his gossipy and grubby worst spelt it out more scandalously. Menzies and Lyons, it was asserted, colluded in a plot whereby Latham would be inveigled into resigning from Kooyong to make way for Menzies. Latham was in effect bribed so to act on the promise that he would be shunted into the Chief Justiceship of the High Court just as soon as its current incumbent, Sir Frank Gavan Duffy, could be coaxed into retiring. This plot also involved the prospective appointment of Sir Frank’s son as a Victorian Supreme Court judge. In one account this was dangled before Sir Frank to induce him to play his allotted role compliantly. The other account depicted a defiant Sir Frank insisting on it as a condition precedent to his retirement. There is, however, one inconvenient truth which alone reduces this rickety artifice to ashes. Sir Frank’s son Charles had been a Victorian Supreme Court judge since May 30, 1933. What role could it have played then as a bargaining chip in the haggling which preceded Sir Frank’s retirement? Furthermore, Sir Frank’s position as Chief Justice first became a matter of contention, and only within the Court itself, on February 16, 1935—more than twenty months after his son’s appointment as a Victorian judge.

Charles Gavan Duffy’s judicial appointment was uninfluenced by any supposed federal plotting or diabolical scheming. First, the vacancy was not created especially for him, as with John Cain Snr’s Labor government’s creation of such a vacancy to facilitate J.V. (later Sir John) Barry’s Supreme Court appointment in January 1947. The vacancy was due to the death of Sir Leo Cussen, a dutiful Roman Catholic. The appointment therefore attested a long-established acceptance that the Victorian judiciary was not an Anglican and Protestant closed shop. Charles Gavan Duffy was a prominent Roman Catholic barrister, so his appointment fell neatly into place. In May 1933 Latham could not have foreseen his departure from politics although Macintyre asserted without any evidence that he had. And Latham so acted in 1934 with profound regret. Sir John Higgins, Chairman of the Central Wool Committee, exaggerated in claiming that he “was dragged screaming from the perch”. Much as Latham had greatly enjoyed being a front-ranking politician, sheer necessity compelled him to close that chapter. And in 1933 Menzies’s ambition was confined to Victoria.

Latham’s immediate objective in quitting politics was to resume his full-time practice at the Bar. And he seems in that pursuit to have made some restitution in his fortunes. The Commonwealth Law Reports disclose that between his resignation and his High Court appointment he appeared in that jurisdiction twelve times and these were only the reported cases. I have not checked other jurisdictions. And then there was that extra-curial milch-cow, the writing of “learned opinions”. Further to this, Latham had been appointed a Privy Councillor in 1933 and knighted as a Grand Cross of St Michael and St George (GCMG) in the King’s Birthday List five months before becoming Chief Justice. His successors Dixon, Garfield Barwick and Harry Gibbs were so honoured only after joining the High Court. Latham as Chief Justice therefore had little prospect of accumulating additional honours and, in the event, he did not. The question conflicting him in planning his future on being offered the Chief Justiceship was whether he should sacrifice his Bar practice for the Chief Justice’s salary. And who, if any, might have been his competitors?

There were copious reasons why the Court’s five puisne justices were not in the race. A New South Wales appointment was ruled out: it would have raised its number to four with Starke and Dixon JJ the only Victorians. If the Victorian Supreme Court was eliminated, the choice rested with the Victorian Bar whose most prominent leaders were Latham himself, Sir Edward Mitchell and Menzies. Mitchell, already aged eighty, was an improbable successor to another octogenarian and Menzies was not interested. That left Latham as the last man standing: a far cry from the utterly pernicious canard, which he repeatedly denied, that he had in effect appointed himself. Philip Ayres, Dixon’s biographer, emphasised that “Latham always claimed he retired from politics voluntarily with no thought of taking the Chief Justiceship”. Latham therefore had the first right of refusal. If his financial position had been restored sufficiently, he could have accepted that appointment knowing that such an offer once firmly refused would never be renewed. Sir Garfield Barwick was confronted with that same reality when offered the Chief Justiceship in April 1964. Not surprisingly he accepted it.

Menzies until 1939 seems to have been fulfilled as a minister, his chief frustration being an ailing Lyons’s reluctance to retire. Joe kept deferring retirement at the insistence of colleagues who judged him to be more attractive to the electorate than Menzies. Meanwhile Evatt J was receiving mixed reviews. Menzies agreed with Dixon J that he was unambiguously a political judge. But the Doc was acclaimed in other quarters for his sound and indeed visionary judgments. And this was vindicated when his dissenting judgment in Chester v Waverley in 1939 was subsequently upheld by the Gibbs court in Jaensch v Coffey (1984). As Sir William Deane put it rather obliquely: “It must now be accepted that the conclusion on the facts in Chester in dissent is plainly to be preferred to the majority.”

Menzies’s thwarted ambition clearly reflected Evatt’s own as he plotted his return to politics.

Lyons’s sudden death in April 1939 left the UAP without a Deputy Leader, for Menzies had recently resigned from the Cabinet over a policy disagreement. The Governor-General, Lord Gowrie, commissioned the Country Party leader, Sir Earle Page, as Prime Minister pending the UAP’s election of Lyons’s successor. Menzies’s narrow victory in that contested election provoked Page, still Prime Minister, into abusing the House of Representatives with an infamous speech of sustained vituperation and personal hatred of Menzies. The Country Party was to react to Page’s disgraceful conduct by forcing him from its leadership the following September after splitting over Page’s refusal to bring that party into a government led by Menzies.

Menzies as Prime Minister from 1939 to 1941 has for too long been unjustly disparaged, but Anne Henderson has given him condign justice in recent publications. The 1940 election left Menzies leading a minority government depending on two Victorian independents. After an official wartime visit to the United Kingdom where he was deservedly acclaimed for his statesmanship, Menzies on his return faced a poisonous party-room rebellion which persuaded him to make way for Arthur Fadden, Page’s successor. A.W. Coles, briefly a UAP member, reverted to his status as an independent in disgust, claiming he had witnessed a lynching which he could never excise from his memory. Professor Blainey and Anne Henderson alike have depicted a coalition still led by Menzies being displaced by the ALP. This is rather hard on poor Artie Fadden. Those two independents in defecting had ended his administration after forty days: forgetting that short term entirely is undeserved. The UAP snubbed Menzies yet further by supporting Fadden as Leader of the Opposition so he chose to resign from its leadership to become a backbencher for the first time since entering the federal Parliament in 1934. This reversal of roles as experienced by Menzies and Evatt could not have been more marked.

Evatt plotted his entry into federal politics even as a High Court judge, thereby earning Menzies’s contempt. After resigning from the Court in 1940, Evatt was endorsed by the ALP for the seat of Barton in New South Wales, which he won convincingly. John Curtin in 1941 appointed the Doc Attorney-General and Minister for External Affairs but he prized the latter portfolio more highly and exploited it in his own self-aggrandisement. While Menzies seems to have attracted consistently favourable opinions in his trips abroad in 1941, 1948 and from 1949 to 1966, the Doc, for all his grandstanding in much travelling in partibus infidelium, seems no less consistently to have attracted the very opposite. Ayres described Sir Owen Dixon’s encounter with Hugh Gaitskell in 1957 when both received the Oxford degree of Doctor of Civil Law honoris causa:

Walking beside Gaitskell in the procession, Dixon took the opportunity for a talk … He [Gaitskell] spoke of Evatt and said that he could see no particular merit in him … This was nothing new—Dixon seems never to have found anyone in British Labour with a good word for Evatt.

Churchill’s view was no more favourable, as Anne Henderson recorded:

As late as September 1942, Churchill in a meeting with Owen Dixon, then Australia’s Minister to the USA, at the White House spoke of Evatt’s “transparent manipulation to keep open the door to a National Ministry” which Churchill supposed Evatt expected to lead. He asked if Curtin was in any way concerned. Dixon had replied that “Curtin understood Evatt perfectly well and kept good control”.

Menzies was aware of this double-dealing. Evatt, still a High Court judge, had asked Menzies to appoint him to the Washington post R.G. Casey was to fill. Menzies also knew of the Doc’s sedulous cultivation of Alex Wilson, Coles’s fellow independent. Ayres reported of Dixon that he “had had an embarrassing time with both [Cordell] Hull and [President] Roosevelt who had complained about Evatt’s unfriendly actions”.

Menzies meanwhile bided his time. He played no conspicuous role in the election of August 21, 1943. The coalition parties were led by Fadden and grotesquely by “Billy” Hughes, the UAP’s bizarre choice as Menzies’s successor. Menzies could therefore plausibly disclaim responsibility for the Curtin government’s re-election in a landslide. By September 23 Menzies faced Parliament as Leader of the Opposition and of the UAP’s much diminished membership. But only months later Menzies was briefly stopped in his tracks.

In January 1944 Sir Frederick Mann, Chief Justice of Victoria, announced his retirement. I recall a very revealing interview given me by Sir John McDonald in 1958. Sir John had been a Victorian Country Party minister and, reprising Dunstan’s experience, a Premier leading an ALP-supported minority government from 1950 to 1952. Without as much as a hint of what was about to smite me, I mentioned Sir John’s place in Dunstan’s composite ministry from 1943 to 1945 and their appointment of Sir Edmund Herring as Mann’s successor. Sir John then remarked that another name had been submitted to the Cabinet. A long silence. Then in an inspired moment I blurted, “Bob Menzies?” only to have my hunch emphatically confirmed.

So, within months, Menzies contemplated abandoning the eminence of being leader of the alternative federal government to fulfil a youthful ambition. Now admittedly Menzies had little hope of being accepted by that Cabinet—not with Dunstan’s glowering presence! But the fact that he so acted signified a rock-solid commitment to accept that appointment if offered it. In that event the subsequent history of Australian politics would have unfolded without Menzies’s dominating presence for more than twenty years. But then pretty much the same could have been said of Evatt if his own plans had been fulfilled!

In 1950 Evatt, disappointed at the Chifley government’s defeat the previous year, unsuccessfully tried to secure an appointment to the New South Wales Supreme Court. According to Anne Henderson, this was blocked by Jack Ferguson, then President of both the New South Wales and the federal ALP. Other accounts claim that the Attorney-General, Clarrie Martin, vetoed it. Evatt’s biographer, John Murphy, is quoted by Mrs Henderson:

If Ferguson had brought his power to bear, Evatt’s career would have run a very different course, and possibly the trajectory of post-war Australian politics would have been different too.

Menzies in late 1944 successfully opposed the “Fourteen Powers” referendum—a setback for Evatt. He was also heavily engaged in that repositioning of anti-Labor forces which emerged as the Liberal Party. Its first electoral blooding was the September 1946 federal election. Menzies could not realistically have expected to topple the government of Ben Chifley, John Curtin’s successor, given the disparity in party strengths left by the 1943 landslide. Yet he must at least have hoped to reduce its majority significantly. The gain of six seats was bitterly disappointing, even though one of its casualties was Chifley’s deputy, Frank Forde. Not for the first time Menzies seriously contemplated quitting politics and some of his followers were plotting to have him replaced. I am old enough to recall the refrain “We’ll never win with Menzies”. Then fortune smiled upon him once again.

John Paul taught British and Australian politics at a university in Sydney from 1973 until his retirement in 1996. This is the first part of a three-part series.