Civilisation and Citizenship: The Words and Deeds of Sir Victor Windeyer
Aletheia Lecture, Ramsay Centre for Western Civilisation, Australian Catholic University, North Sydney
In 1969, the BBC produced an extraordinary television series entitled “Civilisation”. The first episode begins with Kenneth Clark standing on the Pont des Arts in Paris. On one side of the Seine is the Institute of France; on the other side is the Louvre; and just visible upstream is the Cathedral of Notre Dame. Kenneth Clark poses the question “What is civilisation?” and answers demurely, “I can’t define it in abstract terms – yet. But I think I can recognise it when I see it; and I am looking at it now.” Much the same can be said of citizenship, which is a cognate term, also derived from the Latin civitas. I am not talking of citizenship in the formal, legal sense used in migration law, but as a moral concept. That concept is best captured by the perhaps old-fashioned term “civic virtue”, which has the merit of making explicit the etymological connection with “civilisation”. The interdependence of civilisation and citizenship in that sense was a fundamental theme of political ideas in Ancient Greece and Rome. It resurfaced in the Italian Renaissance, and again in the latter half of the 18th Century, particularly in the Scottish Enlightenment and in the founding of the United States of America.
In Australia, we have a tradition of laconic practicality, which encourages people simply to show, not tell. But judges have to expose reasons for their opinions and decisions, both in court and elsewhere, and my remarks this evening are focused on a High Court judge who was a great exemplar of civilisation and citizenship in both word and deed, and with a devotion and integrity which are unlikely to be surpassed.
Sir Victor Windeyer was born in 1900. The day after his 18th birthday, he enlisted in the Australian Imperial Force, but the armistice was declared before he was sent overseas. He studied Arts and Law at the University of Sydney, winning the university medal in history in 1922. From 1919, he served in what later became known as the Sydney University Regiment, becoming its commanding officer in 1937. He practised as a barrister from 1925, and also lectured part-time at the University of Sydney in legal history, ethics and equity, writing two legal textbooks.
In 1940, Windeyer was sent as lieutenant colonel to South Australia to command the 2/48th Infantry Battalion, the most highly decorated Australian battalion in the war. It was unusual then for a commanding officer to be appointed from another State. He led the unit in the defence of Tobruk in 1941, and was awarded the Distinguished Service Order for his inspirational courage and example. Let me quote from the contemporaneous unit diary of Windeyer’s 2/48th Battalion for 17–18 April 1941 at the beginning of the Siege of Tobruk when the battalion kept a German armoured force out along a 4-mile front despite being a number of officers short and having a deficiency in equipment:
Every officer has complete confidence in Lt Col WJV WINDEYER as the “old man” – so far his leadership has been sure and faultless, and his energy both mental and physical is untiring. We all realize our [Commanding Officer] is a thinker, and this allied with an undoubted fighting spirit has captured the imagination of all ranks, and augurs well for the [battalion’s] future.
In 1942, he was promoted to the rank of brigadier, in command of the 20th Brigade, which took a prominent part in the crucial battle of El Alamein. Windeyer’s tactical skills earned him a Bar to his DSO. The brigade was then deployed to New Guinea and later Borneo to fight the Japanese. For this service he was awarded the CBE.
After the war, Windeyer resumed his service in the Citizen Military Forces. He was promoted to Major General, commanded the 2nd Division from 1950 to 1952 and was the CMF member of the Military Board from 1950 to 1953, being awarded the honour of CB for his work there. He was appointed King’s Counsel in 1949, and acted as counsel assisting the Royal Commission on Espionage in 1955, often referred to as the Petrov Royal Commission. He maintained his interest in education, serving as a trustee of Sydney Grammar School for 28 years, a fellow of the Senate of the University of Sydney for 11 years, including 4 years as Deputy Chancellor, and a member of the Council of the Australian National University for 5 years. In addition, he was a director of CSR, MLC, Commercial Union Assurance and the Royal Prince Alfred Hospital in Sydney, and was President of the NSW Boy Scouts Association. In 1958, Windeyer was appointed a justice of the High Court of Australia, and served for 14 years in that capacity.
His biography is itself an outstanding example of qualities of civilisation and citizenship. In addition, his judgments provide a rich source of material on those themes, and we also have his former associate and a distinguished judge in his own right, the Honourable Bruce Debelle, AO, KC, to thank for an excellent collection of Windeyer’s speeches and articles (Bruce Debelle (ed.), Victor Windeyer’s Legacy: Legal and Military Papers (The Federation Press, Sydney, 2019; hereafter referred to as Legacy). That outstanding book reveals Windeyer’s innate dignity, his literary brilliance, his broad mind, and his generous heart.
Reading his judgments now, one is immediately struck by the profusion of historical and literary allusions. His replacement on the High Court, Sir Ninian Stephen put the point well in saying that Windeyer’s “great scholarship and mastery of the written word have long turned law into literature” (163 CLR at p. v). Let me give some examples. In a judgment departing from the House of Lords on principles concerning exemplary damages in defamation, Windeyer J said that the departure indicates “no breaking of the ties light as air” (Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 148; similarly Felton v Mulligan (1971) 124 CLR 367 at 394; and Legacy, p 181). That subtle and evocative expression was taken from Edmund Burke’s speech “On Conciliation with America” in 1775, but perhaps in light of events in North America the following year, Windeyer J tactfully omitted the next words, that the ties are “as strong as links of iron”. In the same judgment (at 151), Windeyer J reworked Alfred Lord Tennyson’s line from “Locksley Hall” that “the jingling of the guinea helps the hurt that Honour feels”, in saying: “Guineas got from the defendant jingle more pleasantly than would those given by a sympathetic friend.” In a case concerning causation of a fatal coronary occlusion, he adopted a phrase from John Milton’s beautiful elegy “Lycidas” in saying: “In the last analysis it is death itself that slits the thin-spun life” (Commonwealth v Butler (1958) 102 CLR 465 at 480). That reminds me of a case before the New South Wales Court of Appeal when my opponent referred to what he said was Sir Owen Dixon’s aphorism in the Automatic Fire Sprinklers case ((1946) 72 CLR 435 at 466) that “They also serve who only stand and wait”. That most cultivated judge, Mr Justice R.P. Meagher, lent forward and said: “How strange, I always thought that was Milton’s sonnet ‘On His Blindness’”. Judges are not generally touched by the poet’s sensibility, but there have been notable exceptions.
Windeyer regarded a well-rounded education as not just a hallmark of civilisation, but also as a preparation for citizenship. In a speech entitled “The Faculty of Arts and the Community” (Legacy, chapter 6), Windeyer adopted John Henry Newman (who I note was recently canonised) to the effect that “if a practical end must be assigned to a university course, then I say it is the training of good members of society.” He admired the early undergraduates of the University of Sydney, whom he described as follows:
Whether rich or poor, they came, generally speaking, from homes where books were kept, where the value of a liberal education was never doubted, where a false quantity was detected, where people took time to write letters, where to the discussion of the problems of the day it was assumed one should bring the experience of the Greeks and Romans, who had had these problems and had left their views upon them.
Those early undergraduates, who included Sir Samuel Griffith and Sir Edmund Barton, “liked to be masters of words and as masters to keep them in their proper places and to make each do its proper work”. Windeyer added: “For them, patriotism was an unquestioned virtue. It was the state, not a section, which they professed to serve.” Those last words were drawn from Macaulay’s poem “Horatius” (stanza XXXII). For that display of erudition, I am grateful to his son, Bill, who remembers his father preparing that speech and calling out to him for the correct words, which he remembered.
The proper use of history in legal analysis was a frequent topic in Windeyer’s judgments and speeches. In the Marriage Case (Attorney-General (Vic) v Commonwealth (1962) 107 CLR 529 at 595), he was critical of mere “antiquarian learning” and said that “The only reason for going back into the past is to come forward to the present, to help us to see more clearly the shape of the law of to-day by seeing how it took shape.” History, he said, should be read as a narrative of a movement from the past towards the present; and unlike the method of the genealogist, we should not be concerned to find an early ancestor of a doctrine or rule unless by this one can better understand its progeny (Legacy, p 136). “If we read history only backwards, we lose the sense of growth, of expansion and evolution” (Legacy, p 120). He regarded history as “an ever-moving stream” in which “The present can never be separated rigidly from the past, for always the present is becoming the past” (Legacy, p 279). For the student of law, history thus teaches that our law is moving forward as part of the main body of our history, as social conditions and ideas change (Legacy, p 120; similarly, Hargrave v Goldman (1963) 110 CLR 40 at 64). Windeyer said that it is “the lawyers who have been moved by a sense of history, rather than those whose approach has been strictly analytical, who have been the more ready to be reformers. That is because, although they have looked at the past, they have taken from it a sense of the dynamic of the law and thus have looked to the future” (Legacy, p 121 and see p 147). Although Windeyer was a conservative in many respects, he was certainly not a reactionary.
He admired the common law’s inherent capacity for development but saw that as an incremental process. In Smith v Jenkins (1970) 119 CLR 397 at 417, he used an architectural metaphor:
We must, of course, build upon established foundations and without destroying the symmetry of the existing building: but we need not be fearful of making additions to fill vacant spaces if they accord with what is already standing.
In Benning v Wong (1969) 122 CLR 249 at 305, he drew on his military experience in cautioning that:
those who insist that the common law is still on the move should remember that it must always march in step. Decisions in cases passing at the moment must be in step with those which have just gone past, although not necessarily with those at the head of the column. Moving the metaphor from the parade ground to the field, it is as sound a maxim for law as for war that operations should be from a firm base, that an advance must be from a position which has been securely established.
That last maxim was taken from General Montgomery’s pamphlet Brief Notes for Senior Officers on the Conduct of Battle, written in 1942 after the battle of El Alamein (Legacy, pp 31, 178; Some Aspects of Australian Constitutional Law, p 69).
Let me take that conception of the on-going vitality of the common law a step further. One sees in much of Windeyer’s writing a conception of judicial decision-making as embodying the reasonable expectations of ordinary people. That might sound an obvious proposition today, but it should be borne in mind that the High Court of Australia at that time was dominated by a kind of legal formalism which tended to regard the application of the law as an exercise in strict logic from a closed set of legal premises. Windeyer adopted a different stance, which he described in the first chapter of his Lectures on Legal History (2nd ed., The Law Book Co, 1949, p 3) as follows:
Law is not, in essence, a body of technical rules, uncouth formulae, and inexorable commands, mysteries which only the learned may know and with the subtle distinctions of which only a dialectician can wrestle. It is really a simpler and grander thing. It is that which makes it possible for men to live together in communities, to lead a peaceful, organised, social life.
Let me give two examples of this civilised approach. In Cobiac v Liddy (1969) 119 CLR 257 at 269, Windeyer J said in relation to whether a statute prescribing minimum sentences permitted some discretion:
The whole history of criminal justice has shown that severity of punishment begets the need of a capacity for mercy …. This is not because mercy, in Portia’s sense, should season justice. It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice.
Next, consider the human sympathy in the way that he described Cable v Sinclair, the first civil case tried in New South Wales in 1788, in which a convict couple with a two year-old child successfully sued the master of one of the ships in the First Fleet for failing to deliver a parcel containing their possessions (Legacy, p 107):
They were young. They were uneducated. Their station in life was a humble one, and they were serving a sentence for a crime. They might have expected humiliation, rather than help. The defendant on the other hand was a person of importance, the master of a vessel about to leave Port Jackson. The proceedings of the Court were a vindication of the rule of law.
There is a negligence case decided by the High Court which is particularly illuminating in this regard. In Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, two employees who were testing a switchboard were electrocuted and horribly burnt, and it was found that their employer had negligently failed to instruct them properly in their duties. The claim was brought by another employee who went at once to the gruesome scene and assisted in carrying one of the injured workers to an ambulance. About four weeks later, he suffered what lawyers at the time referred to as “nervous shock”. A parent or close relative who witnessed such an incident was at that time clearly recognised as having a right to claim, but what about a fellow employee? Windeyer does not refer expressly to his battlefield experience, but the distinction between a family member and an employee would not have made sense to someone who had seen first-hand the psychiatric effects on soldiers who had witnessed traumatic casualties. And his judgment does contain an insightful military metaphor, that “Law, marching with medicine but in the rear and limping a little, has come a long way” since the 1880s (at 395).
One finds a similar theme to the law embodying the reasonable expectations of ordinary people in the context of constitutional law, in the notion that the text of the Constitution should be interpreted in the light of the political reality of nationhood that has developed within its framework. That emerges most clearly in the Payroll Tax Case in 1971 (Victoria v Commonwealth (1971) 122 CLR 353 at 396) in which Windeyer J refers to the colonies becoming components of a federal nation in 1901 but then saying: “Its nationhood was in the course of time to be consolidated in war, by economic and commercial integration, by the unifying influence of federal law, by the decline of dependence upon British naval and military power and by a recognition and acceptance of external interests and obligations.” Justice Windeyer then referred to the landmark Engineers’ Case in 1920 (28 CLR 129), which discarded the doctrine of the implied immunity of the States, as not “the correction of antecedent errors or the uprooting of heresy”, but as reading the Constitution “in a new light, a light reflected from events that had, over twenty years, led to a growing realization that Australians were now one people and Australia one country and that national laws might meet national needs”. In his J.A. Weir Memorial Lecture in Edmonton, Canada, in 1972, he explained his view of the Engineers’ Case as a demonstration that in a country which has inherited the common law as its essential characteristic, a capacity to grow and develop as the needs of people change can govern fundamental law, and even the concepts that a written constitution embodies (Some Aspects of Australian Constitutional Law, 1972, p 36). To pick up an expression which Windeyer J used in a slightly earlier constitutional case: “The law has followed the facts.” (Bonser v La Macchia (1969) 122 CLR 177 at 223). That phrase can be traced back to a speech he gave in 1956 on the development of responsible government, saying in relation to New South Wales: “The law followed the facts at a respectful distance, but with constant pressure for the closing of the gap” (Legacy, p 42; and see p 50). He concluded his J.A. Weir Lectures by saying (p 70):
It is not impertinent when reading the words of the Constitution, words intended to endure and to have a meaning in new circumstances, to remember St Paul’s adjuration that it is the spirit that giveth life. The spirit is continually present. It is not chained by the letter to unyielding precedents of the past. It is the spirit of the common law of England.
Let me now draw these threads together by taking up an idea which Windeyer often deployed in his judgments and speeches, the concept of cultural and intellectual “inheritance”. We perhaps tend to think of an inheritance in terms of ownership of something created by the efforts of our forebears, for us to deal with as we please. Windeyer used the term in a more profound and continuous sense, more akin to stewardship or trusteeship than ownership. “An inheritance”, he said, “is not so much something handed down, as something to be handed on to an heir” (Legacy, p 31). That strikes me as corresponding closely to Edmund Burke’s vision of society as a partnership not only between those who are living, but between those who are living, those who are dead, and those who are yet to be born.
That is a natural way in which to view the common law, being the body of English law which we have inherited. Windeyer said that we take that inheritance “as a universal legatee. We take its method and its spirit as well as its particular rules”, recognising that further developments and fresh refinements are still going on and that the background and conditions against which the law operates are not the same in England as in Australia (Skelton v Collins (1966) 115 CLR 94 at 135). The common law is thus “an ancient and living tradition” (Legacy, p 34). Windeyer’s approach may be contrasted with Voltaire, who said in his revolutionary zeal: “If you want good laws, burn those you have and make new ones” (Dictionnaire philosophique, “Loi”).
On other occasions, Windeyer spoke in broader terms of “the inheritance of European Christian civilisation”, as in The Marriage Case (Attorney-General (Vic) v Commonwealth (1962) 107 CLR 529 at 578) which raised fundamental questions about the institution of marriage. As a historian, he doubted whether Australia on its own really constitutes a proper unit of historical study in isolation from the history of its European heritage (Legacy, p 37). Those who are interested in the Christian influence on modern liberal democratic thought should read Larry Siedentop’s great work, Inventing the Individual (2014). The central themes of that book resemble closely the way that Windeyer put the matter in a speech in 1966 to the Thirteenth Dominion Law Conference in New Zealand in explaining how the common law is part of our broader civilisation and culture (Legacy, p 124):
To the way of life that is ours, with its decencies, dignity, tolerance and Christian kindliness, the law has contributed more stern and outward concepts of equal justice, of the liberty of the individual, of the subordination of government to the rule of law.
Although he recognised that the institutional influence of the church had diminished or been expelled by modern secular philosophy, and by what he referred to as “a generous toleration of conflicting beliefs”, he said that “the moral values of Christianity, based very often on the values of Judaism, continue to pervade the common law and to point out the ways of its development” (Legacy, p 146). I should add for completeness that, while he found much to admire in our inheritance of Western civilisation, he did not regard colonisation as entirely and unequivocally good, and said for example that: “The early history of contact of whites and blacks in Australia is on the whole melancholy, and in parts cruel and shameful, notwithstanding provisions made long ago by the States for the welfare and protection of the aboriginal inhabitants” (Some Aspects of Australian Constitutional Law, J.A. Weir Memorial Lecture, Edmonton, 1972, p 21).
Fundamental to the idea of citizenship is a moral imperative to nurture and enhance that inheritance. As citizens, we are duty-bound to hold fast to the good things in our inheritance in order to pass them on, and we have no right to disinherit the next generation. Windeyer once wrote of war memorials, for example, as speaking of deeds and reminding of inheritance, and said that to fulfil their purpose they should “evoke a question and suggest an answer” (Legacy, p 13). A war memorial, he said, should speak of a nation’s heritage and call generation upon generation to ask: “quid pro tanto retribuemus?” (Legacy, p 13). What shall we give back in return for so much? The question is taken from Psalm 116, verse 12.
Let me digress for a moment and widen the bounds of this discussion. The inter-relationship between words and deeds was a matter of intense interest for Athenians in the 5th Century BC; the word logos meaning speech, reason and argument (hence our word “logic”), and the word ergon meaning action or results (hence our word “erg” in physics, being a unit of work or energy). The statesman and general, Pericles, said: “We do not think logos is an obstacle to action; no, the issue is the failure to use logos before action has to be taken.” Socrates argued that logos without action was worthless, and amounted merely to verbal assertion or hypocrisy. When Aristotle tackled the question “What is a good life?”, he insisted that logos alone was not enough; it must be a life of reason concerned with action. In other words, the person leading a good life manages to integrate the intellect with resolute action, and shows the mind’s capacity to dominate the irrational impulses and external circumstances that try to overwhelm it.
It would perhaps be unrealistic to think that we are capable of giving back to our civilisation as citizens as much as Windeyer himself gave. Very few of us are likely to serve in uniform, or display the courage and self-sacrifice of those who did. It is worth recalling that every British Prime Minister from 1940 to 1963 had served in armed combat. That certainly gave them a seriousness of purpose. I am not seeking to glorify war, which is a malignant scourge in human history. In my experience, soldiers themselves share that view, as they are the ones most acutely familiar with the suffering and sacrifice that war entails. But I do think that a desk is a limited place from which to experience and view the world. Most importantly, theirs was a generation which understood that it is through the practice of citizenship that civilisation is held together. Sadly, the self rather than society has begun to matter more to people, and selflessness is at the heart of citizenship. Windeyer put it eloquently when he spoke to the 20th Brigade at a service of thanksgiving in western Brunei, 6 days after the end of the war in the Pacific in August 1945 (Legacy, p 11), when he remembered those who had fallen in battle and then referred to those qualities which united the soldiers under his command:
It is the simple things we have respected in our friends in the Army – speaking truth, taking a fair share of the work, cheerfulness, doing a good job and being ready to help the other man do his job, not letting the show down.
Those are the things which have kept whole units together – and made victory possible. They have been greater than many differences of rank and of opinion and of feeling. In our different interests and different tasks in civil life, we may remember that those things were good.
That is a powerful statement in its everyday attainability. It speaks of ordinary matters of civic-mindedness and fellow-feeling among citizens in their daily lives in peacetime. These were citizens who saw their civilisation in danger and fought as citizens conscious of their civic duty for its defence. They deserve the description which Pericles gave to the Athenian dead, in the 5th Century BC, whose story “abides everywhere without visible symbol woven into the stuff of other men’s lives”.
