This article was published in Australian Dictionary of Biography, Volume 9, (MUP), 1983
Sir Isaac Alfred Isaacs (1855-1948), governor-general, judge and politician, was born on 6 August 1855 at Elizabeth Street, Melbourne, eldest of six children of Alfred Isaacs, tailor, and his wife Rebecca, née Abrahams. Two sisters and a brother survived infancy. Alfred Isaacs had been born in what was then Russian Poland, which he left in the 1840s and settled in London. He married Rebecca in 1849 and they migrated to Victoria in 1854, arriving in September. Rebecca, who was London-born, had a powerful mind, wide-ranging intellectual interests, and the capacity to understand and discuss complex matters. She was an ambitious and dominating woman who exercised a very strong influence over her first-born.
In 1859 the family moved to Yackandandah in north-eastern Victoria where Isaac attended in turn a small private school and the state school. He was a bright and lively child with wide interests from an early age. When in 1867 the family moved to the larger neighbouring town of Beechworth, he went first to the Common school and then to Beechworth Grammar School of which he was dux. Having qualified as a pupil-teacher he taught at the Common school and the state school which replaced it from 1870 until 1875. That year, after a dispute with the headmaster about fees allegedly due to him, he resigned from the Education Department and taught for a few months at the grammar school. Through the good offices of the local member G. B. Kerferd he then secured an appointment as a clerk in the prothonotary's office in the Crown Law Department in Melbourne, where he had extensive experience in practical legal matters. Necessarily a part-time student, he began law at the University of Melbourne in 1876 and graduated in minimum time in April 1880 with first-class honours and the exhibition (LL.M., 1883). A notebook of 1879 which survives is a model of precision and clarity in its brief statement of doctrine and principle, and in its excellent summary notes of decided cases. It is said that Isaacs had a photographic memory and in examinations could cite cases with reference to volume and page.
He remained in the Crown Law Office until 1882 when he decided to go to the Bar and took chambers in Temple Court. With no connexions and little financial backing, Isaacs found the going slow, but his qualities of persistence and determination, linked with great legal ability and capacity for hard work, brought him an increasing practice. By 1890 he was well established: that year he appeared nineteen times before the Full Supreme Court and was taking briefs on behalf of large corporate clients including banks, the stock exchange, land and finance companies and local authorities. The range of his practice was very wide: during the 1890s he appeared in various company law matters, in cases involving tort, contract, insurance, insolvency, mining and local government law. Sir John Latham recalled that Isaacs was noted at the Bar for 'the close and detailed attention which he paid to his cases, the completeness of the arguments which he presented and his pertinacity in advocacy. He had a remarkable equipment of legal knowledge'.
In 1886 Isaacs had brought his parents to Melbourne where from 1888 they lived in a substantial two-storey house at Auburn. On 18 July at the bride's home at St Kilda, he married 18-year-old Deborah (Daisy), daughter of Isaac Jacobs, a tobacco merchant who had been president of the St Kilda Hebrew Congregation and in 1889-90 was to be president of the Chamber of Manufactures. Daughters of the marriage were born in 1890 and 1892. The family shifted house frequently, but one lasting abode was a country house at Mount Macedon. Isaacs kept in close daily touch with his mother and, indeed, in the early years of his marriage sometimes left his family for short periods to stay with her. Even when over 50 and a justice of the High Court, he would write to 'My sweet darling Mammie': she yielded little of her hold over him before she died in 1912.
Throughout his life, Isaacs was a student of languages. He learned the rudiments of Russian, French, German, Italian and Greek from his parents and from miners in the north-east of Victoria, as well as a smattering of Chinese. He took every opportunity throughout his life to develop his proficiency by conversation with migrants and practice at the family table, and in carrying on correspondence. He continued to read widely in religion, science and literature, and ornamented his speeches with quotations from poets and prose writers. In his years at the Bar he was an active member of the Australian Natives' Association and as a Freemason was the first Grant Registrar of the United Grand Lodge of Ancient, Free and Accepted Masons of Victoria for the year 1889-90.
At the Victorian general election of April 1892, Isaacs was elected by a comfortable margin to the Legislative Assembly as member for Bogong, a district which included Yackandandah and Beechworth. His policy-speech, in the context of a severe depression, emphasized an equitable spread of retrenchment, introduction of income taxation rather than indirect taxes which unfairly hit the poor, reform of company law, conciliation machinery to resolve industrial disputes, railway reform and support for Federation. Isaacs initially supported the Shiels ministry but in January 1893 helped to vote it out of office and accepted the portfolio of solicitor-general in the new Patterson ministry. Sir Matthew Davies and another associated with the failed Mercantile Bank had been committed for trial on charges of conspiracy to defraud. The attorney-general, Sir Bryan O'Loghlen decided not to proceed with the indictments, whereupon Isaacs announced that in the exercise of the independent authority vested in him as solicitor-general he proposed to consider instituting proceedings. After cabinet had resolved that it was unconstitutional for him to interfere with O'Loghlen's decision, he was still determined to proceed. At the premier's demand he resigned on 25 May. He won much political popularity over the incident: when he resigned his seat on the issue he was returned unopposed. O'Loghlen had been wrong in not proceeding but Isaacs's interpretation of the law was strained and his action was not in accord with the principles of cabinet government. Having challenged persons of standing and institutions of power and authority he was henceforth distrusted in these quarters, and his conduct as a member of the government gave rise to the feeling that he was not trustworthy as a colleague.
On the fall of the Patterson ministry Isaacs became attorney-general in the Turner Liberal ministry from 27 September 1894 to 5 December 1899 and again in the Turner and Peacock ministries from 19 November 1900 until 4 June 1901. Described by the Bulletin as Turner's 'brilliant henchman', Isaacs served occasionally as acting premier. In November 1894 he introduced comprehensive legislation to reform Victoria's lax company law in an attempt to cleanse the colony's reputation after the numerous swindles of the land boom period. His announcement of each stringent new clause was vociferously cheered in the Legislative Assembly. But, after a two-year battle with the Legislative Council, only an emasculated, though still very useful, version was passed. On this and many other issues the radical Age lauded Isaacs and the conservative Argus reviled him. He strongly supported social reforms such as the Factories Act, which established wages boards and attempted to eliminate sweating, denounced plural voting and favoured women's suffrage. He struggled to control gambling but failed narrowly in 1898 to amend the Police Offences Act in an attempt to destroy John Wren's Collingwood 'tote'. Throughout his period as a minister he carried on an extensive Bar practice. His younger brother, John Alfred (1863-1944), a practising solicitor, represented Ovens in the Legislative Assembly from 1894 to 1902.
Alfred Deakin describes Isaacs in the later 1890s as follows: 'A clear, cogent, forcible and fiery speaker, he set himself at once to work to conquer the methods of platform and parliamentary debate and in both succeeded. He was not trusted or liked in the House. His will was indomitable, his courage inexhaustible and his ambition immeasurable. But his egotism was too marked and his ambition too ruthless to render him popular. Dogmatic by disposition, full of legal subtlety and the precise literalness and littleness of the rabbinical mind, he was at the same time kept well abreast by his reading of modern developments and modern ideas'. These comments are not misleading: he was a man to be reckoned with. His unpopularity cannot wholly be dismissed as jealousy, anti-Semitism or other prejudice, although there was prejudice and ugly and unworthy things were said and written about him. He was a lone wolf and a determined, ambitious and unrelenting man. At the same time he retained wide popular support as a political leader articulating reformist ideas.
Isaacs had often spoken to A.N.A. meetings about 1893 on the obstacles to Federation and the need to arouse popular interest. He looked forward to the day when he could say, 'I am an Australian'. In March 1897 he was elected fifth, on the Age ticket, as a Victorian delegate to the Federal convention which assembled for five months in Adelaide, Sydney and Melbourne before concluding in March 1898. Isaacs was not elected to the vital drafting committee. Deakin says that this was due to 'a plot discreditable to all engaged in it', that Isaacs was antagonized and humiliated, and that his 'tendency to minute technical criticism was sharpened so as to bring him not infrequently into collision' with the drafting committee. In the long run, 'with magnificent self restraint [Isaacs] subordinated his sense of personal injustice'. He had mastered the American, Canadian and European literature of federation; no delegate could outdo him in learning. But his long expositions and analyses and his inability to refrain from interjection wearied and irritated his colleagues. He spoke in the convention as a Victorian. He had a special interest in the position of the larger States; he was opposed originally to equal numerical membership for all States in the Senate, but finally yielded the principle. He was insistent on the primacy of the House of Representatives; he was a strong supporter of the referendum as an instrument of decision for constitutional change and for the resolution of deadlocks between the two Houses, and he did not favour joint sittings. He supported H. B. Higgins's proposal for the insertion of the industrial arbitration power among Federal powers. He favoured restriction of appeals from the High Court to the Privy Council of which he later spoke disparagingly. He was active in seeking to protect Victorian railway interests, and he warned of the dangers which might flow from the broad language of what became the much litigated section 92 of the Constitution. He was no supporter of the transcription of 'Bill of Rights' provisions from the American to the Australian Constitution.
Isaacs, Turner and the Victorian ministry had many reservations about the draft constitution which was to be put to the vote of the people; the Age went into outright opposition. At the A.N.A. banquet at Bendigo on 15 March 1898 Isaacs hesitantly pleaded for delay for further consideration. Deakin's famous speech following him roused the A.N.A. to confirm its full support. Public and parliamentary enthusiasm led the ministry to change course and the Age to give grudging consent. Isaacs campaigned forcefully in support of the measure. 'Every vote for the Bill is a brick that will help to raise the edifice of the Nation'. The referendum was passed sweepingly in Victoria but the majority in New South Wales was inadequate. Isaacs did not take any prominent part in the subsequent premiers' conference which modified the draft or in the second referendum campaign. He was in England in 1900 in order to appear before the Privy Council, but although Deakin recommended him to Premier McLean as the most suitable Victorian nominee to the Australian delegation to see the Constitution through the Imperial parliament, McLean insisted on Deakin going. Isaacs was guest of honour at a dinner of the Anglo-Jewish Society, his wife was presented to the Queen, and he watched with interest the successful conclusion of negotiations over the Constitution bill.
When Turner joined Barton's first Commonwealth ministry early in 1901 Isaacs became acting premier and, although he had already stated his intention of standing for the House of Representatives, the Victorian cabinet and the Age encouraged him to remain as premier. He refused the offer, however, and was decisively elected for Indi, the north-eastern Victorian seat. Isaacs continued in broad alliance with Deakin as a radical protectionist Liberal and supported the Barton ministry. He was returned unopposed in 1903. A vehement advocate of the White Australia policy and the abolition of Melanesian labour, he also strongly supported Deakin's proposed notion of a High Court convening in all State capitals, as against a temporary court of State chief justices. He was equally vehement in favour of Deakin's conciliation and arbitration bill: 'This bill simply bids the wave of passion, prejudice, and partisanship to be still. It evolves order out of chaos. It is a national proclamation of peace. With equal voice to all, it commands that none shall ever lay down the implement of labour and take up the weapons of war'. He did not approve of the devices by which the Watson Labor government was brought down in 1904, and during the succeeding Reid administration he was prominent in manoeuvres by the radical wing of the Deakinites which reached an alliance with the Labor Party and its policies. While never a supporter of socialism, Isaacs saw the virtues of trade union organization, the justice of the demand for fair and reasonable wages and working conditions, and the need for state intervention to bring them about. He was especially aware of the threat to protectionist policies, and scathing in his attacks on Reid.
Isaacs was appointed attorney-general from 5 July 1905 in the second Deakin ministry and, as throughout his working life, displayed extraordinary energy in the post. Samuel Mauger enthused him with the policy of New Protection and Isaacs drafted and carried ingenious legislation which aimed to implement it, together with attempts to repress monopolies and introduce the trade union label. Much of this legislation was eventually subjected to successful constitutional challenge in the High Court. Sir Robert Garran, secretary of the Attorney-General's Department, recalled that Isaacs 'had a remarkably keen brain but it was apt to be sometimes too subtle for my liking. When we were drafting a bill whose constitutionality was not beyond doubt, his devices to conceal any possible want of power were sometimes so ingenious as to raise, rather than evade, suspicion'. While holding office as attorney-general, Isaacs maintained a large private practice; when criticized in parliament he defended his conduct with characteristic vehemence. According to Garran, 'Isaacs' capacity for work was amazing. By day he carried on the biggest practice of the Victorian Bar; by night he did full justice to the duties of Attorney-General'. They would work on a draft of legislation which Garran would leave with the government printer about midnight: in the morning Garran might find the draft redone, Isaacs having had second thoughts and recovered the bill from the printer's office. Between 1901 and 1906 Isaacs appeared as leader in well over one hundred reported cases in the Victorian Supreme Court and in twenty-five in the High Court. Their range was very wide, including some of constitutional importance; he also argued will, trust and administration matters, liability to land tax, mining law, and matters of statutory construction.
Isaacs was appointed to the High Court of Australia on 12 October 1906 and remained on the Bench, in the full maturity of life, for almost twenty-five years. The chief justice, Sir Samuel Griffith and Sir Edmund Barton both strongly disliked him and were strongly opposed to the trend of his constitutional interpretations. For many years Isaacs and Higgins were frequently to find themselves a dissenting minority. Isaacs brought enormous energy and learning and very strong convictions to the task of judging. He was one of the earliest of Australian Federal judges to give explicit recognition to the social implications of decision-making and he spelled out social (and, where appropriate, economic) policies, often in detail, in his judgments. Family and divorce law, factory legislation and legislation designed to protect employees are examples. He spoke of the need for the courts to be 'living organs of a progressive community'. In his youth the deficiencies of Victorian company law during the boom and bust had been brought home to him; he had experienced the depression of the 1890s with its unemployment and exploitation of labour; he regarded gambling as an evil which struck primarily at the welfare of the working man and his family. He read widely in social and economic literature which he mustered, as well as copious legal authority, as a formidable artillery in support of his position. In the criminal jurisdiction he emphasized the protection which the law should assure to accused persons. Yet in administrative law he sometimes showed a perhaps disproportionate sympathy for the interest of public authority at the cost of the individual.
On constitutional issues he moved steadily to a position of strong and almost undeviating support for the exercise of national, central power. In a case touching the Federal arbitration power, he put it that the issue was whether the Commonwealth could deal with its most momentous social problems, unimpeded by the sectional policies of particular States. For almost a decade and a half he found himself dissenting in major constitutional cases but, with the departure of Griffith, the balance of the court shifted and the Engineers' Case of 1920 became a great monument to Isaacs's achievement. The precise issue of the Federal arbitration power in that case could have been decided on quite narrow ground, but the majority in the court, in a judgment which indisputably reveals Isaacs's hand, took much higher ground. Over a range of issues he asserted a wide reach for Federal power, especially during World War I and with regard to migration and other powers. By 1920 he had reached the position that although section 92 of the Constitution had a broad scope it bound only the States, leaving the Commonwealth free from its far-reaching constraints. Once he reached that position he asserted that no other conclusion was credible. When, after his retirement from the court, the Privy Council held that section 92 bound both Commonwealth and States he denounced the decision as a palpable error. Surely there has never been on the Australian High Court bench a nationalist quite like him.
The style of his speaking and of his judgments, however, was often rhetorical and verbose. More objectionable was his appalling certainty, his unshakeable conviction of the rightness of his opinion and his utter inability to see merit in any other view. He was unwilling to confess error in those cases where he simply had to reverse course and retreat from a position dogmatically stated and wrong. Reading his judgments sometimes leaves a sense that a result has been achieved by a trick, by sleight of hand. He never ceased to be a committed advocate. We have it, however, on the testimony of a great lawyer that he was a courteous judge and could, in some circumstances, be persuaded to a change of view. Sir Owen Dixon who often appeared before him in the High Court recalled: 'To argue as counsel against a view he had formed was an exercise amounting almost to a forensic education. Always courteous, never overbearing or assertive, he met you point by point with answers drawn by a most powerful and yet ingenious mind … if you were able to bring to his mind an aspect of the case or an argument which he had not seen and struck his mind as new to him and as having substance he would give it due consideration and sometimes change his opinion entirely'.
Isaacs was sworn of the Privy Council in November 1921 while on long leave in Britain and became a member of its judicial committee three years later. He was appointed K.C.M.G. in 1928. He succeeded Sir Adrian Knox as chief justice of the High Court on 5 April 1930, but held the office for less than ten months. Early in December his appointment as governor-general was announced. On 22 January 1931 he took the oaths of office, the first native-born Australian to be appointed.
For months there had been great controversy. Early in 1930 the retiring governor-general, Lord Stonehaven, had informed the Labor prime minister, J. H. Scullin, that the United Kingdom government would welcome an indication of a suitable successor before consulting the King. According to Garran, cabinet in February or March, after considering Isaacs and Sir John Monash, decided to recommend Isaacs and so informed Prime Minister Ramsay MacDonald. By April the rumoured appointment had produced violent opposition, based largely on party-political grounds, to preferment of an Australian. It was argued that a local man would inevitably have personal involvements and that a distinguished citizen of the United Kingdom would better secure the bonds of Empire; Isaacs, moreover, was in his mid-seventies. The constitutional position was uncertain in that it was not clearly established where the constitutional advice for the appointment of a governor-general should originate. While the Imperial Conference of 1926 had precluded the tendering of advice by the United Kingdom government, it did not then state that the source of advice for appointment was the prime minister of the relevant Dominion. Led especially by the advice of his private secretary, Lord Stamfordham, King George V was strongly opposed to the appointment of Isaacs because he was a 'local man', there had been no prior consultation and he was elderly and personally unknown to him. The Imperial Conference confirmed early in November 1930, however, that a governor-general should be appointed on the advice of the Dominion government concerned, though only after informal consultation. Late in November, in audience with the King, Scullin stood firm, the King reluctantly approved, and the announcement of Isaacs's appointment was made with a clear implication of the King's displeasure.
Isaacs attended to his duties with zest. His age was no impediment to great enthusiasm and he discharged the ceremonial duties of his office with obvious enjoyment. To his constitutional duties he brought not only great application and assiduity but also a unique learning and knowledge. In special cases, he furnished elaborate memoranda expounding the reasons for his action. Of these the most notable was his answer to the address of the Opposition-controlled Senate in 1931 praying that he should refuse to approve certain regulations under the Transport Workers Act. He also wrote at length to explain why he had accepted Scullin's request in November for a dissolution. No difficult constitutional issues emerged during his further period of office. By the time he retired on 23 January 1936 it was generally acknowledged that he had served as governor-general during harsh depression years with dignity and distinction. He had voluntarily surrendered one-quarter of his salary and declined to take his retired judge's pension while he held office.
Isaacs sailed for England early in 1936 in order to give a personal account of his stewardship to King Edward VIII. An ardent Empire and King's man, he greatly enjoyed the visit. In 1932 he was appointed G.C.M.G. and in 1937 the high honour of G.C.B. was conferred on him; he had also been appointed an Associate Knight of Grace of St John of Jerusalem in 1931. For the remaining years of his life he and Lady Isaacs lived at four addresses in South Yarra and Toorak and at Macedon. During these years of retirement he remained for the most part very vigorous and active, reading regularly at the Public Library and discussing books and their work with students, writing pamphlets and articles, making speeches, broadcasting, presiding at functions, and carrying on an extensive correspondence. In an oration in 1937 he reviewed in characteristically florid and rhetorical style the life and achievements of Sir John Monash. He campaigned consistently for constitutional reform and wider Commonwealth powers, notably in his pamphlets Australian Democracy and our Constitutional System (1939), An Appeal for a Greater Australia (1943) and Referendum Powers: a Stepping-Stone to Greater Freedom (1946). In the last year of his life, 'in defence of the State Constitution', he supported the Cain Labor government of Victoria against coercion by the Legislative Council.
Isaacs also wrote widely on biblical and religious subjects for the Jewish press and frequently spoke at various Jewish functions. He did not observe religious practices and had taken little part in community affairs but was acutely aware of his Jewishness; his strong interest in religious doctrines and writings had probably been nurtured by his mother. In his public life he was very sensitive to anti-Semitic attacks and responded to them angrily, especially when there was any suggestion of a contradiction between Jewishness and British citizenship. Throughout his life he took immense pride in his British citizenship and its Imperial links, and insisted that Jewishness was a matter of religion and not of race or nationality.
In the early 1940s Isaacs copiously attacked 'political Zionism', as he described it, mainly in the Hebrew Standard. It is an unhappy story which, allowing for his great age, once again reveals his inflexible dogmatism and his insensitiveness towards the differing beliefs of others. When Professor Julius Stone opposed him cogently, Isaacs reacted with great anger not only to the argument but against Stone personally. He threatened a body of Melbourne Jews that if they proceeded with a public protest meeting against the implementation of British policy in Palestine, he would publicly denounce them on the ground that 'our simple duty is to our King and country in this hour of trial', and he did so. During these years of holocaust, what Isaacs did was painful and divisive; both his writings and his actions were extravagant and left a blemish on his reputation in the Jewish community which had taken such pride in the splendour of his career.
Isaacs attributed his powers of endurance largely to his physical fitness and regular exercise. While he was not an athlete and had little interest in organized sport, he ran quite long distances until middle age, often swam, and continued to be a keen and assiduous walker. He was abstemious: he did not smoke and drank very little alcohol. His only excess was tea drinking.
In old age he became frail and deaf, but his mind was unimpaired to the end. After some weeks of illness he died in his sleep, aged 92, on 11 February 1948 at his South Yarra home. After a state funeral and a synagogue service at which the eulogy was delivered by his old friend Rabbi Jacob Danglow, he was buried in Melbourne general cemetery. His wife and daughters survived him. His few memorials include the names of a Canberra suburb and a Federal electorate, and the title of a chair of law at Monash University. The centenary of his birth passed almost unnoticed. There are portraits by John Longstaff at Parliament House, Canberra, by Percy White at the High Court of Australia, Canberra, and by Bryan Westwood at Government House, Canberra.
Some of his contemporaries, especially his professional, political and judicial peers, disliked or distrusted Isaacs. Others such as his associate John Keating, his doctors and many simple people who knew him had the warmest affection for him and remembered him as invariably courteous, kind, thoughtful and warm. It is hard to find neutrals. But, as Sir John Barry said, 'his efforts were directed towards the amelioration of social misery and the uplifting of mankind'. He was a master lawyer and one of the greatest judges in our Federal history, and he brought to his work and to the whole of his public life an unflagging and almost inexhaustible energy and a mind of great strength, power and range.
Zelman Cowen, 'Isaacs, Sir Isaac Alfred (1855–1948)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/isaacs-sir-isaac-alfred-6805/text11773, accessed 20 June 2013.
This article has been amended since its original publication. View Original
This article was first published in hardcopy in Australian Dictionary of Biography, Volume 9, (MUP), 1983