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Lowe, Sir Charles John (1880–1969)

by J. R. Poynter

This article was published in Australian Dictionary of Biography, Volume 15, (MUP), 2000

Sir Charles John Lowe (1880-1969), judge and university chancellor, was born on 4 October 1880 at Panmure, near Warrnambool, Victoria, sixth of eight children of English-born parents Thomas Lowe, schoolteacher, and his wife Mary Ann Amelia, née Barnett. Thomas had emigrated from his native Lancashire in 1864, aged 22; he married in 1866, and became an assistant-teacher in a 'national' school at Bendigo before taking charge of the Panmure school in 1873. An eye injury led to his total blindness in 1880. The Lowes ran a few cows and a small store to supplement Thomas's meagre pension; although life was hard, especially after the store was destroyed by fire, the family was happy and the children well schooled. Charles, who greatly admired his indomitable father, was appointed a temporary monitor at the Panmure school on £10 a year after taking his merit certificate. He won a scholarship to Surrey College in suburban Melbourne, but had to quit after a year to earn money when the Panmure business finally failed. An assistant-master at Hawksburn Grammar School and (from 1897) at St Paul's Cathedral Choir School, he also succeeded in matriculating, determined to do arts and law.

At the University of Melbourne (B.A. Hons, 1900; M.A., 1902; LL.B. Hons, 1904), Lowe was the model of the able poor student. Alexander Leeper, the warden of Trinity College, gave him a £10 non-resident scholarship, but seven hours a day spent teaching prevented him attending university lectures; fortunately his brilliant fellow student (Sir) John Behan lent him his lecture notes. After graduating, Lowe borrowed £100 from an uncle to pay to take articles with W. R. Rylah, father of (Sir) Arthur. Admitted to the Bar on 1 August 1905, Lowe supplemented his modest initial earnings by teaching at Bradshaw's Business College and publishing a handbook on commercial law (1911). He also learned shorthand—a skill which was to prove useful on the bench—and worked as a court reporter. Lowe progressed slowly as a barrister, working mainly in the Court of Petty Sessions and then the County Court (where he became leader of the Bar); he had Supreme Court briefs, but none in the High Court, and never took silk. Not a creative lawyer like his friend (Sir) Owen Dixon, he nevertheless, in two decades at the Bar, became extraordinarily proficient in common and criminal law.

Tall, lean and lithe, though with a characteristic family stoop, Lowe was a dapper young man; his stiffly waxed moustache, at first dashing, grew smaller over the years. He was keen on sport, rarely missing an important cricket match. On 15 January 1908 at St Stephen's Anglican Church, Richmond, he married Clara Rhoda Dickason, a 26-year-old schoolteacher. Charles and Clara had a close understanding, which endured; they lived first in modest comfort at Westgarth, and later moved to Malvern and finally Toorak. Methodical at home as at work, Lowe walked to the morning train, teaching his daughter her tables on her way to school. Returning at 6 p.m., he would dine, play fifty-up at billiards with his wife, and work in his personal law library until midnight, with cocoa at 10. Saturday was for sport, watching, or playing tennis and golf. Sunday was seldom for church—he supported though rarely attended the local Anglican church—but always for the family, with organized outings. In time he gave the family the travel he had missed in his youth, including trips to North America in 1927 and to Europe in 1935. He loved the theatre, and reading, including the Times Literary Supplement and Punch, and a French novel every holiday. He joined the Melbourne, the Australian and the Royal Melbourne Golf clubs. His family was said to have discouraged him from entering politics.

In 1926 a vacancy occurred on the Supreme Court bench. Dixon urged Lowe to make himself available. Though at first reluctant, he was sworn in on 28 January 1927 to acclamation he did not expect. 'No Judge has commenced his duties with such an assurance of sympathetic and appreciative assistance from the Bar', wrote (Sir) Robert Menzies. Panmure celebrated for a week. In the same year Lowe joined the council of the University of Melbourne, emerging immediately as a strong advocate of a 'permanent' vice-chancellor, a reform achieved in 1933. He also served (1927-35) on the council of Trinity College.

During a record (for Victoria) thirty-seven years on the bench, Lowe won a reputation as 'one of the notable judges of the twentieth century' by meticulous application of the law. His decisions were seldom overturned, and he was pleased to find them surviving the Privy Council itself in the famous murder trial of John Bryan Kerr in 1951. Lowe's judgements were plain: he avoided added observations and general legal theory, yet he said that he admired the creative 'insouciance' with which Dixon could ignore precedents. He was impatient of academic lawyers 'insufficiently schooled in court practice'. He was firm with counsel, and good at deflating the pompous (such as the counsel in a divorce case who laboriously proved a husband a 'perjurer' for claiming to be teetotal while drinking up to six beers a night; 'I suppose that makes the condition of being teetotal a little more tolerable', Lowe interjected).

Lowe assumed Victorian values, including a 'manly sort of modesty'. He showed unusual insight into the circumstances of everyday life which brought citizens into the court, whether in dispute or charged with crime. A tragic case early in his term, of a deserted wife convicted of manslaughter after killing her children and attempting suicide, long influenced him, but he was not sentimental, especially to those he thought justly convicted. He was extraordinarily patient, notably in 1953 when a man accused of murder tried to prevent his trial proceeding by continually abusing the judge; Lowe eventually had him removed, but postponed sentence until an appeal had confirmed that trial in the accused's absence was valid. His well-publicized judgements included the 'Pyjama Girl' case (1944)—in which he clearly thought that the belatedly accused husband Antonio Agostini was lucky to escape with manslaughter—and a 'wrong baby' case (1949).

Although Lowe was to act thrice as chief justice, he was not the senior puisne judge when the chief justiceship fell vacant in 1944, and the government chose to appoint Sir Edmund Herring from outside the court. Lowe approved of Herring's efforts to increase judicial efficiency; he himself argued for a separate court for divorce and a board to deal with motor-vehicle compensation cases.

Lowe's unforgettably judicious style was carefully controlled. 'No one could be as wise as Sir Charles Lowe looks', Menzies cribbed from the eighteenth century, but Lowe's colleague (Sir) Kevin Anderson thought his impassive expression a 'studied pose'. His solemnity, even while joking, contributed to his reputation as a great wit, but not all courtroom quips remain amusing in plain air. A juror asked to be excused because his wife was about to conceive; counsel, amending, said she was about to be confined: Lowe ruled that 'in either case the presence of the husband is highly desirable'. A very self-regarding speech from recently knighted Sir John Latham provoked him to pun that 'the night has a thousand eyes'.

Presiding over four major commissions of inquiry, three for the Commonwealth and one for the State, Lowe became a national figure. 'I have no special competence to conduct an inquiry beyond the desire to arrive at the truth of matters according to the evidence, irrespective of whether or not it fits into any preconceived pattern', he wrote about one of the commissions, expressing his approach to all. He was both praised and criticized for thus narrowing his focus.

On the morning of 13 August 1940 a Royal Australian Air Force Hudson approaching Canberra airport crashed with three members of the Commonwealth cabinet and the chief of the general staff on board. Lowe was asked to chair an R.A.A.F. court of inquiry. The resentment of the professionals was eased by his thoroughness, which included a familiarization trip—his first flight—in a Hudson. His report decided the aircraft had stalled, and found no evidence of sabotage, poor maintenance, inadequate pilot training, or that a passenger was at the controls.

When World War II took Latham overseas, Lowe served as chancellor (1941-54) of the University of Melbourne. Unlike earlier incumbents (including Sir James Barrett, who nominated him), he immediately insisted that his role as chancellor was not 'to decide questions of policy, which were vested in the permanent Vice-Chancellor. His influence was mainly limited to the persuasive weight of the views expressed by him at Council meetings'. He worked easily with the liberal-minded (Sir) John Medley.

On 3 March 1942 Lowe was appointed to inquire into 'all the circumstances' of the Japanese air-raids on Darwin on 19 February which had shocked Australia into an unprecedented sense of vulnerability. The day after his arrival in Darwin he telegraphed the minister for defence co-ordination: 'absolutely imperative Darwin be strengthened; vulnerable to any major attack'. Lowe's report concentrated on poor co-ordination between civilian and military authorities, on the delay in giving warning of the impending raids, and on lack of leadership in the panic which followed. Twenty-four years later Lowe defended himself against claims by the journalist Douglas Lockwood that he had deliberately narrowed his report to conceal the truth about 'Australia's Pearl Harbour'.

In June 1943 Lowe was named royal commissioner to investigate an allegation by E. J. Ward, minister for labour and national service, that the Menzies government had prepared a 'defeatist' plan—by then, Ward claimed, missing from official files—to retreat beyond a 'Brisbane Line'. In fact a contingency plan to withdraw to south-eastern Australia had been laid before the Labor government, not its predecessor, and Ward's own prime minister John Curtin denied that any files were missing. Ward claimed privilege and did not appear before the royal commission, preventing Lowe from ruling on his statement, but the judge none the less concluded that there was no substance in the charges.

Lowe's last investigation, another royal commission, was undertaken for the State of Victoria. In April 1949 the prominent communist Cecil H. Sharpley published in the Melbourne Herald 'revelations' of the party's activities, including rigged union elections and espionage. On 19 May Lowe was appointed to report on the 'origins, aims, objects and funds of the Communist Party in Victoria' and its 'activities and operations'. He sat from June 1949 to March 1950, examining 159 witnesses and compiling 10,000 pages of record. Scrupulous as always, Lowe never allowed his investigation to become a witch-hunt. Ralph Gibson, who spent eight days in the box as the party's first witness, wrote that Lowe, 'contrary to our fears and to the Government's hopes, displayed a certain genuine interest in Communist theory and a certain respect for evidence'.

Reporting with 'painstaking fair-mindedness', Lowe found that 'The Communist Party is prepared to use any means to achieve what it thinks to be a desirable object', and that it 'does not hold itself bound to obey laws which it regards as oppressive'. His 'meticulous sifting' of allegations of rigging of union elections found some proved but not all; and, on the issue of the party's purported allegiance to a foreign power, he found no evidence of direction from overseas and insufficient to support Sharpley's allegations of espionage. Party-members praised Lowe, but others have criticized him for failing to uncover acts of espionage since revealed. Gibson claimed that Lowe 'was punished for his honesty by the virtual burial of his report'. In reality it was overtaken by events. While the royal commission was sitting, Menzies won a Federal election undertaking to ban the Communist Party of Australia. He introduced his Communist Party dissolution bill the day before Lowe's report was issued on 28 April 1950.

With Medley, Lowe had defended university staff against allegations of 'Redness' made in the State parliament, and protested in favour of freedom of speech in the Teachers' College adjacent to the university, but when a meeting was held on 13 September 1951 at which a number of professors urged a 'No' vote in the referendum on the banning of the Communist Party, Lowe protested to the new vice-chancellor (Sir) George Paton that the university had been identified with a party political cause. Consequent attempts to regulate such meetings were resented by staff and students, and attacked as illiberal in the press. Lowe claimed that his position was not understood: he was concerned that the university 'should not appear to enter the arena of controversy' on 'party political questions'. It proved easier said than done.

A discreet but creative chancellor, Lowe spoke out for better conditions for professors, publicly supported research, international academic intercourse, 'liberal education', and co-residential colleges ('as a result of my experience in the divorce court, they've got to live together and the sooner they start trying to do it the better'). He championed poor students, especially from the country, and lamented (though accepting) the closure of the university's short-lived Mildura branch in 1949. He was unhappy with quotas, insisting that 'all who have qualified' should be accepted. Lowe stood down as chancellor in 1954. He received an honorary LL.D. (1956). The citation stated that 'Precise and learned, he nevertheless commands the common touch', and praised 'The wit that sparkles behind a grave and deliberate front'. At the university's centenary celebrations Medley described him as 'one of the greatest men who have served this University'.

In 1959 Lowe broke the former record of thirty-two years as a judge of the Victorian Supreme Court. He did not formally retire until 1964, but presided over his last case on 17 December 1962, at the age of 82; every one of the forty-three judges gathered in the court for his official farewell had appeared before him as a barrister.

Before 1946 Lowe had spent seven years as president of the English Speaking Union, writing regularly on Australian issues for its London newsletter. In 1956 he agreed to be president of the new Australian-Asian Association of Victoria, when requested by R. G. (Baron) Casey. Although in 1959 he publicly championed the cause of an Asian student whose father had been unjustly charged medical fees, threatening to resign as president until Casey gave redress, he was thought over-scrupulous in refusing to admit to membership citizens of countries not in diplomatic relations with Australia (such as China), and in distancing the association from campaigns against the White Australia policy; the cautious foreword he wrote for the abolitionist pamphlet, Control or Colour Bar, was withdrawn by mutual consent. His strict legalism again emerged during the public campaign against the hanging of Ronald Ryan; he argued in the Age that the cabinet's discretion was limited to details of the particular case and that it could not consider general principles against capital punishment, a distinction he claimed was 'of prime constitutional importance'.

Lowe was much honoured. He was knighted in 1948, and in December 1953 was called to the bar of the Legislative Assembly to be thanked for his services to the State and to parliament, especially as administrator of Victoria, a role in which he later made an official visit to Warrnambool, and spectacularly to Panmure. In 1956 he was appointed K.C.M.G.

Living quietly in retirement, Lowe kept up a number of activities, including golf. He died on 20 March 1969 in East Melbourne and was cremated; his wife, son and daughter survived him. At a memorial function held in the Supreme Court on 24 March, Chief Justice Sir Henry Winneke quoted from Lowe's own farewell speech: 'The moral I draw from my own career is that in this community, provided a boy has a modicum of ability and sufficient pertinacity, there is scarcely any position he may not reach'.

(Sir) David Low drew a fine cartoon of Lowe in 1916. The university holds a portrait of Sir Charles, in chancellor's robes, by Paul Fitzgerald. Of the two portraits in the Victorian Bar, Judy Cassab's portrayal, in mufti, looks persuasively tough, but Lowe much preferred the portrait, also by Fitzgerald, showing him bewigged and benign.

Select Bibliography

  • Speeches at a Gathering in the Law Courts of Melbourne on Wednesday 19 December 1962 . . . to Farewell the Honourable Sir Charles Lowe (Melb, 1963)
  • N. Rosenthal, Sir Charles Lowe (Melb, 1968)
  • K. Anderson, Fossil in the Sandstone (Melb, 1986)
  • A. Inglis, The Hammer and Sickle and the Washing Up (Melb, 1995)
  • Quadrant, Jan-Feb 1969, p 77
  • V. Rastrick, The Victorian Royal Commission on Communism 1949-1950 (M.A. thesis, Australian National University, 1973)
  • Lowe papers (Supreme Court of Victoria Library).

Citation details

J. R. Poynter, 'Lowe, Sir Charles John (1880–1969)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/lowe-sir-charles-john-10865/text19285, published first in hardcopy 2000, accessed online 29 September 2016.

This article was first published in hardcopy in Australian Dictionary of Biography, Volume 15, (MUP), 2000

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