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O'Connor, Richard Edward

The Oxford Companion to the High Court of Australia

Martha Rutledge

O'Connor, Richard Edward 

(born 4 August 1851; died 18 November 1912; Justice 1903–12)

was born in Glebe, Sydney, the third son of Irish-born Richard O'Connor and Mary Ann, Harnett. His father became a librarian of the NSW Legislative Council in 1843, clerk of the Legislative Assembly in 1856, Clerk of the Legislative Council in 1860, and in 1864 was designated as ‘clerk of the parliaments’. Brought up to be a devout Roman Catholic, the young O'Connor was educated by the Benedictines at St Mary's College, Lyndhurst, the non-denominational Sydney Grammar School, and the University of Sydney, graduating BA in 1871 and MA in 1873. From boyhood, his closest friend was Barton.

While working as a copying clerk in the Legislative Council from 1871 to 1874, O'Connor frequented the Sydney School of Arts Debating Club. In 1874, he began to study law, and the following year read with Frederick Darley, later Chief Justice of NSW. O'Connor was admitted to the Bar on 15 June 1876. He ‘devilled’ for Darley for two years and eked out his income by law reporting and by contributing to various newspapers. From 1878 to 1883, he was Crown prosecutor for the Northern District and built up a successful practice, mainly in common law and in appellate matters, from his chambers in Wentworth Court, Sydney. On 30 October 1879, he married Sara Jane Hensleigh (died 1925) at St Joseph's Church, Delegate.

O'Connor was nominated to the Legislative Council on 30 December 1887. From 23 October 1891, he served as Minister for Justice, with the right of private practice, in George Dibbs's Protectionist Cabinet; he was also Solicitor-General (July to September 1893). Before taking office, O'Connor and Barton, the Attorney-General, had accepted briefs to act for George Proudfoot in litigation against the Railway Commissioners (who retained their own solicitor). The case dragged on, and in November 1893 the propriety of ministers of the Crown acting against a government agency (albeit a statutory authority) was questioned in Parliament. They immediately relinquished their briefs and, after a motion for adjournment was carried against them in the Legislative Assembly on 7 December, resigned their portfolios. The case was eventually settled. O'Connor travelled overseas in 1894, visiting Egypt, Italy, England, and Ireland. Returning invigorated and freed from the constraints of office, he took silk in 1896. From November 1898 to March 1899, he was an acting Supreme Court judge.

O'Connor, Richard EdwardClick to view larger

Richard O'Connor, Justice 1903–12

O'Connor had been a founder of the Australasian Federation League of NSW in 1893 and a delegate to the People's Federal Convention at Bathurst in 1896. The next year, he was elected to the Australasian Federal Convention. Like Barton, he had studied constitutional law and was familiar with the American, Canadian, and Swiss Constitutions. When the Convention met in Adelaide, O'Connor was elected to the constitutional and drafting committees. Anxious to preserve the checks and balances carefully embodied in the Constitution, he was the author of section 24, which by providing that the members of the House of Representatives would be ‘as nearly as practicable, twice the number of senators’ sought to preserve the ‘strength and power of the Senate’.

The first draft Constitution Bill failed to achieve the necessary majority in NSW. After fruitlessly campaigning throughout the colony for its acceptance, O'Connor resigned from the Legislative Council on 22 July 1898 to contest (unsuccessfully) the Legislative Assembly seat of Young. In 1899, he campaigned less widely for the second referendum on the Constitution Bill, as he found that he ‘had to stick to my business as it began to come back or I would have been in a disastrous plight’, but he still managed to speak ‘four or five nights a week’ in Sydney. On Christmas Day 1900, Barton announced his Cabinet: O'Connor was vice-president of the Executive Council (an honorary portfolio). In March 1901, he was elected to the Senate at the top of the poll—the only Protectionist senator returned for NSW.

The first Barton ministry faced a hostile Senate and as government leader, O'Connor displayed hitherto unsuspected dexterity in managing three very stormy sessions without any major defeats. From the opening of Parliament, he discouraged the Senate from voting as the states' house and convinced the majority of members that it was their duty to bow to the wishes of the House of Representatives. His greatest achievement was steering the Customs Tariff Act 1902 (Cth) through the Senate virtually unaltered. O'Connor's control was the more remarkable as he struggled to maintain his practice in Sydney between parliamentary sessions in Melbourne, but found there was no longer ‘the same continuous stream that used to make my business so good’. The Catholic Press believed he had sacrificed an income of £4000 a year to accept office, and in June 1901 he reluctantly told Alfred Deakin that he could not continue without some remuneration. As the number of salaried ministers was limited by the Constitution, each agreed to contribute £200 a year to a fund for honorary ministers.

O'Connor's last major task in the Senate was the carriage of the Judiciary Act (1903), which established the High Court. In the House of Representatives, the Bill had been bitterly attacked as an unnecessary extravagance, and had been amended so as to reduce the number of Justices and remove retirement pensions (see Remuneration of Justices). O'Connor resigned his portfolio on 24 September and resigned from the Senate on 27 September. On 5 October, he and Barton were appointed to the High Court with Griffith as Chief Justice. The liberal-minded O'Connor brought to the Bench ‘sound common sense’.

For three years, the Justices worked harmoniously. Griffith later claimed that his and O'Connor's ‘minds ran … in similar grooves’ perhaps due to ‘our early training at our common University of Sydney’. The foundation Justices shared a balancing view of the Constitution, defending the states' legislative powers but at the same time devising the doctrine of ‘implied immunity of instrumentalities’ to prevent the states taxing Commonwealth officials (see Intergovernmental immunities). They jealously guarded the High Court's supremacy over the Privy Council on constitutional matters. In Deakin v Webb (1904), O'Connor forthrightly stated that it was the duty of the High Court to defend the ‘Constitution from the risk of what we consider a misrepresentation of its fundamental principles’. He was outraged when the Privy Council rejected the doctrine of implied immunities in Webb v Outtrim (1906); he wrote to Deakin that Deakin could ‘take it for certain that the High Court will not allow itself to be overruled by the Privy Council in any matter involving the interpretation of the Constitution’. In the Jumbunna Coal Case (1908), he argued that ‘it must always be remembered that we are interpreting a Constitution broad and general in its terms’. Aware that the Court's decisions would be ‘a guide throughout the Commonwealth’, he took ‘almost too anxious care’ in preparing his judgments, which were always written. On the rare occasions that the three foundation Justices disagreed—four times in all—it was O'Connor who dissented.

The Court sat in all the state capitals to deal with more appellate work than expected, and caused passing resentment by applying scholarly standards to their judgments and demanding a high level of advocacy and proficiency from the Bar. Frequently, decisions of the state Supreme Courts were overturned. Josiah Symon, on becoming Attorney-General in December 1904, tried to move the High Court's principal seat from Sydney to Melbourne, and humiliated the Justices by cutting travelling and other expenses. O'Connor believed that abolishing tipstaves and messengers would ‘materially affect the efficiency of the Court’. Angry and voluminous correspondence was exchanged, and in May 1905 he cancelled a sitting of the Court in Melbourne without due notice (see Strike of 1905). A compromise was not reached until Isaacs took office as Attorney-General in July 1905.

In February 1905, O'Connor had reluctantly accepted the additional office of President of the Commonwealth Court of Conciliation and Arbitration, ‘so long as the work of the High Court was not seriously hampered or delayed’. He had to devise the procedure of the Arbitration Court, and he took a ‘good deal of trouble with the decisions’, since he was conscious that they covered ‘the beginnings of things in the working of the court’. He soon found that the High Court's appellate and circuit work left little time for arbitration matters, and in April 1906 complained to Isaacs that ‘I find myself obliged to take a course which would suspend all the appeal business of the High Court for a month, or postpone hearing of this most important dispute indefinitely’.

After O'Connor had resigned from the Arbitration Court late in 1907, he sometimes agreed on industrial matters with Isaacs and Higgins, whose appointments to the High Court in December 1906 destroyed its initial unanimity. Dixon later remarked that O'Connor's work on the Bench ‘lived better than that of anybody else of the earlier times’. O'Connor twice declined a knighthood; he was, however, disappointed that he was not appointed to the Privy Council.

From childhood, O'Connor had been fascinated by the romantic story of his grandfather Arthur O'Connor's involvement in the 1798 Irish rebellion, and had ardently supported the Home Rule movement. He stood above sectarianism and was respected by Protestants as well as by Catholics. Well-read and a lover of Shakespeare, he belonged to the Athenaeum and Australian clubs in Sydney. He was a fellow (1890–91 and 1893–1912) of the Senate of the University of Sydney. Tall, with dark hair and eyes, a trim beard, and a luxuriant moustache, O'Connor was ‘somewhat grim-visaged, but possessing a ready smile that illumined his countenance with irresistible good humour’. His ‘conversational voice was rich and musical’. Moderate and careful in his mode of living, he walked long distances every day and was never happier than when gardening at his country home at Moss Vale. He loved trout-fishing in the Snowy Mountains and regarded Dalgety as ‘an ideal site for a Federal capital’.

Troubled by chronic nephritis and unable to retire because he was pensionless, O'Connor went overseas in 1907–08 and in 1912. He died of pernicious anaemia on 18 November 1912 in St Vincent's Hospital, Sydney, and was buried with Catholic rites in the Anglican section of Rookwood cemetery. His wife, four sons, and two daughters survived him; two of his sons were killed in action on the Western Front in World War I and a third fought with the Light Horse, Australian Imperial Force, at Gallipoli and in the Middle East.

O'Connor's premature death was widely lamented. Barton, grief-stricken, firmly believed ‘that assiduous toil did much to shorten a life that was most precious’. Griffith spoke of O'Connor as ‘absolutely fearless in the performance of his judicial duties … in the rarer sense of not shrinking from the enunciation of first principles which are sometimes rather obscured than elucidated by judicial decisions’. A portrait of O'Connor, by famous Australian artist Percy Spence, is held by the High Court in Canberra.

Martha Rutledge