The University ofQueensland Law Journal Vol. 12, No.2 3

Sir Keith Aickin

J.D. Merralls· Keith Aickin was 33 when he commenced to practise at the Vic­ torian bar. His passage to the bar had been delayed by the war, when he served in a number of civilian capacities, and by his deci­ sion to work for United Nations relief and refugee agencies in America and Europe in the first five years of peace. He attended Melbourne Grammar School where his father was a senior mathematics and science master. Among his contemporaries were the historians Manning Clark and A.G.L. Shaw. Aickin's own studies were more on the science side and he considered reading chemistry at the university before electing for law. He graduated from the University of Melbourne in 1938, received first class honours and the Supreme Court Prize. He accepted the position of associate to Sir Owen Dixon soon after he was admitted to practise. In 1941-42 he was attached to the Central Wool Committee and the Commonwealth Shipping Control Board of both of which Sir Owen Dixon was chairman. When Dixon was appointed Australian Minister to the United States he insisted that Aickin should accom­ pany him as third secretary, and for much of Dixon's period of office in Washington Aickin lived as a member of the Dixon household. Dixon retained the highest regard for Aickin. He later regretted that Aickin was not invited to succeed him when he retired as Chief Justice in 1964. Aickin attended the founding con­ ference of U.N.R.R.A. in 1944 with Dixon, and he joined the legal office of that organization when Dixon left Washington. While in Europe with V.N.R.R.A. and the International Refugee Organiza­ tion Aickin read for the English bar. He was called to the Middle Temple in 1948. Many years later he was able to argue a copyright appeal for an Australian company in the House of Lords as a member of the English bar. On his return to Australia in 1949 he read in the chambers of A.D.G. Adam. Adam's practice was mainly in wills, trusts and land law. Aickin began in those fields but soon branched into company and commercial work. His experience with the Central Wool Com­ mittee brought him into the important wool realization cases of the early 1950's. Within two years he appeared alone in the High Court in Ritchie's Case l and in 1954 he was briefed to appear with D.I. Menzies Q.C. before the Privy Council in the Squatting Investment 2 Case • He took silk in December 1957 and when Menzies was appointed to the High Court six months later he was his acknowledged successor as the leader of the Victorian bar in con­ stitutional, commercial and revenue matters. Aickin's reticence made him almost a reluctant advocate. But his keen dialectical skills made him an effective one. His method was to strip a case to essentials and concentrate upon winnable points.

*Q.C., LL.B.(Melb.). 1. Ritchie v. Trustees Executors & Agency Co. Ltd. (1951) 84 C.L.R. 553. 2. Federal Commissioner of Taxation v. Squatting Investment Co. Ltd. (1954) 88 C.L.R.413. 4 J.D. MERRALLS

Arguments that did not withstand rigorous testing in preparation were jettisoned. Those that survived the test were presented with subtlety often belied by apparent simplicity. He had the rare ability to seize a position in opening and make it impregnable before an opposing voice was heard. Though reserved by temperament he was an effective cross-examiner and with the advantage of his background in science he was especially adept with experts in patents cases. Court appearances were however only part of his practice. His advice was sought from all quarters and he was frequently asked for a second opinion after advice had been obtained from others. Many large concerns insisted that he be consulted upon the legal ramifications of a proposed course of action before a decision was made to proceed. In this perhaps even more than his forensic work Aickin's practice was truly national. In his later years at the bar his counsel was given not only as lawyer but as a director of several major companies. Aickin declined an invitation to be appointed to the High Court on the death of Sir Alan Taylor but accepted appointment seven years later to succeed Sir Edward McTiernan. He was then aged 60 and was the last Justice appointed before s.72 of the Constitution was amended to impose a retirement age. He died on 18th June 1982 having served a little less than six years as a member of the Court. His judgments differed markedly in length and style from the written opinions he had given at the bar. He appeared concerned both to demonstrate all the steps in the legal reasoning leading to his conclusion in a case and to avoid expressing opinions which were not necessary for the decision. The style of his judgments reflects his attitude to the judicial function as well as the self­ restraint so characteristic of him as a man. But it made his judicial work less incisive than his work at the bar. Though impeccably argued and soundly based, his judgments seldom cast the shaft of light for which one looks to the highest court. Aickin's preference for writing comprehensive judgments in the cases that involved his close attention also led to his concurring without elaboration in the judgments of others in many cases. That in some of them he did not deliver reasons of his own is to be regretted. On the bench he was courteous and kindly. He rarely intervened in the course of argument. When he did it was usually to introduce an idea or elucidate a submission. He did not regard the bench as an extension of the bar. In keeping with his character, Aickin's public utterances were few. But they reveal his independence of mind and breadth of outlook. As a commentator upon a paper about constitutional reform at the Australian Legal Convention in 1967 3 , he spoke of the root and branch reform which he would have liked to see but recognized as not in practice attainable and warned against piece­ meal amendments that would strengthen the separatist tendencies of the States at the expense of central control of the economy; and

3. P.D. Durack and R.D. Wilson, "Do We Need a New Constitution for the Com­ monwealth?", Australian Law Journal, vol. 41 (1967), p. 231. Sir Keith Aickin 5 he chided the authors' suggestion that the financial position and financial resources of the States should be strengthened. His remarks about s.92 foreshadowed his judgments as a member of the Court. Whatever its defects and governmental inconveniences, it had been one of the few major factors tending to produce one nation and one people. Any restriction on its operation was likely to strengthen the divisive forces and for that reason alone should be rejected. The views he expressed about other constitutional guarantees of individual rights, though tentative and cautious, reflected not only some scepticism of the effectiveness of political processes but a willingness to consider fundamental change. "It is not self evident that constitutional protection for basic individual rights and freedoms is unnecessary in this community, nor is it self evident that they are too difficult or too troublesome to bother with ... If substantial rearrangement and redefinition of political power in Australia were achievable, constitutional protection for individual rights could well find a proper and essential role in such a scheme." Keith Aickin will be remembered with warmth by those who had the good fortune to know him. Though outwardly reserved, he had the gift of friendship. His death as the result of a motor accident has deprived the country of a wise and discerning judge and a fine man.