2016 Selden Society lecture – David Jackson AM QC on Sir Harry Gibbs CJ

2016 Selden Society lecture – David Jackson AM QC on Sir Harry Gibbs CJ


Chief Justice, Justice Kiefel of the High
Court, judges and retired judges of the Supreme Court and other courts, members of the profession,
distinguished guests, ladies and gentlemen. I welcome all of you here including those
of you who are virtually present whilst at the Townsville, Mackay and Cairns courthouses. Welcome to the first of the lectures in the
series of six lectures which are organised by the Selden Society and Supreme Court Library. This evening we are to be treated to a lecture
about Sir Harry Gibbs by a former associate of his, David Jackson. David Jackson was Sir Harry’s associate whilst Sir Harry was a judge of the Supreme Court of Queensland. And therefore we know that David will be able
to offer a special perspective on his life and work. I brought with me the precis of David’s CV
but if I were to read it out there would be no time left for the lecture. So if I can just mentioned briefly that David
Jackson AM QC as he now is. Graduated from the University of Queensland
with a Bachelor of Arts as long ago as 1963 and a Bachelor of Laws the following year. As I mentioned he worked as an associate to
the Honourable Sir Harry Gibbs who was then a judge of this court here. He was called to the Bar in 1964. Appointed Queen’s Counsel shortly thereafter
in 1976 and worked in private practice at the Bar in Brisbane until 1985, before becoming a Judge of the Federal Court of Australia stationed, in Sydney. He now leads New Chambers in South Wales and
his principal areas of practice are described as appellate, constitutional law, arbitration
and mediation. David Jackson is a distinguished orator and
writer and obviously a very distinguished silk at the private Bar. Could you please welcome David. [APPLAUSE] Thank you very much Justice Fraser. Chief Justice, Justice Kiefel, distinguished guests and ladies and gentlemen. May I thank the Selden Society for inviting me to deliver this paper in relation to Sir Harry Gibbs. I had the privilege as you’ve heard to be
his Associate in 1963 and 1964 when he was a Judge of the Supreme Court of Queensland.
I appeared before him after that on a number of occasions when he was a judge of this court,
and on many occasions I appeared before him or before courts of which he was a member
in the High Court, sometimes in cases which were acutely political. After his retirement we both lived in Sydney,
we kept in contact and I was pleased that he asked for me to visit him in hospital a
few days before he died in 2005. He was then a very sick man when I saw him. We both knew he was dying. And we uttered the trivialities and banalities
so common on such occasions. May I mention first where some other material
concerning him is to be found. There are many such pieces. Some fragmentary some fuller. The fullest is a biography of Sir Harry by
Joan Priest as have been mentioned, ‘Without Fear or Favour’. It was published in 1995 sponsored by the
University of Queensland Law Graduates Association and it also contains an Appendix by Peter
Connolly, a former Judge of the Supreme Court of Queensland, dealing with Sir Harry’s
time on the High Court and thereafter. In 2003 the Supreme Court of Queensland Library
published a volume, ‘Queensland Judges on the High Court’, edited by Michael White QC and
Adam Rahemtula. It contained the proceedings of a conference on the theme ‘Queensland’s
Contribution to the High Court’. The Honourable Justice Glen Williams, then of the
Court of Appeal, presented the paper on Gibbs. I presented the Commentary. As I said to Glen Williams a little while
ago I would for the purposes of this as I said I would, to Glen, for the purposes of this paper, I have plagiarised shamelessly his paper as required and also repeat some parts of my Commentary. You will also find material in the Oxford
Companion to the High Court of Australia (2001) in the entries Gibbs, Harry Talbot which Joan
Priest and I contributed and ‘Gibbs Court’ by Professor Anne Twomey and some of what I’ll
say repeats comments which I wrote in the Obituary in 2005 in the Australian Law Journal. May I also at this point, like to thank
my daughter Louise Jackson of the New South Wales Bar for her assistance with the PowerPoint
which is quiet beyond me. Harry Talbot Gibbs was the son of Harry Victor
Gibbs, a prominent solicitor in Ipswich for more than 50 years. And of Flora McDonald Talbot Woods. May I say two things about names. First to the family the “a” in Talbot
is long, Talbot. Secondly Sir Harry Gibbs, from a very young
age, was known to his friends as “Bill”. Despite the fact that his father was then
in practice as a solicitor in Ipswich, Bill Gibbs was born in Sydney. He was born on 7 February 1917 at 99 Gordon
Street in Paddington. And the birth certificate records the witnesses
to the birth as being “Dr Windeyer” and “Sister Cook”. I checked on the lineage of Dr Windeyer with
Bill Windeyer, a retired Supreme Court Judge in New South Wales and the son of Sir Victor
Windeyer who had been on the High Court, and he confirmed that there was a family relationship
not too surprising with a name like Windeyer. And it’s an interesting historical vignette
that one member of the High Court has been delivered by a relative of another. But of course Australia was a much smaller
place in 1917. Although he had been born in Sydney Bill Gibbs
was brought up in Ipswich. Children as you know do tend to grow up. And up, and up and up. He attended Ipswich Grammar School and then
the University of Queensland. In the photograph you’ll see him in the
back row sixth from the right. And also at that time Ipswich Grammar was
Douglas Campbell “DM” Campbell as he was generally known, to distinguish him
from Walter Campbell “WB” Campbell. D.M. became a Supreme Court Judge. His son is Douglas Campbell, a silk at the
Queensland Bar. “D.M.” and Bill Gibbs later took silk
at the same time, as the newspaper of 8 February 1957 records. As I said he attended the University
of Queensland. He was inaugural president of the Law Students’
Society and vice-president of his college, Emmanuel. And in the Emmanuel College photograpy he’s seventh from the right in the second
row. He was also elected President of the Students
Union. The other candidate was R.S. Hopkins. R.S. Hopkins didn’t win. But Dick Hopkins became a distinguished engineer. He frequently gave expert evidence and he
was a relative, or relative by marriage I’m not quite sure which, of the Hanger family. Sir Harry Gibbs graduated in Arts in 1917
with first class honours. And in 1939 in Law again with first class
honours. Life at Queensland University, however, was
not all unmitigated work and merit. He was a participant in the rather shabby
episode reported in that journal of record, Semper Floreat of 30 September 1937 under
the heading “Women’s Club Ravaged”. The basis for the intrusion into the Women’s
Club appeared to be the fact that the words defining qualifications for membership of
the Women’s Club did not specify that members had to be women. His legal learning no doubt influenced by
that experience, he said in his judgment in the High Court in Wacal Developments v Realty
Developments in 1978 some 41 years later, that when a term is defined it,
“is given … a special meaning which must be applied whether or not it accords with
the ordinary meaning.” These days, of course, the incursion into
the Women’s Club would probably be entirely unnecessary. Reliance could simply be placed on the Sex
Discrimination Act. But I suspect he wouldn’t have found that
quite as attractive. There was also the occasion in July 1938 when
the Brisbane Telegraph carried the headline Students Stranded in Bay. It was said that the engine of the vessel
had failed and that the students had to spend a cold night together at Bishop Island near
the mouth of the Brisbane River. The students, as is apparent from the photograph,
appear to have survived the ordeal in remarkably good spirits. And it may be noted that the engine of the
vessel restarted, apparently without trouble, on the arrival of the Water Police launch. Sir Harry and Tom Matthews were the first
graduates of that University’s Law School to graduate with first class honours. They were thus entitled to admission to the
Queensland Bar in 1939 without payment of fees, although they had to establish that
entitlement before the Full Court. The report of those proceedings can be seen
In re Matthews and In re Gibbs in 1939 in Queensland Weekly Notes. Their admission to the Bar was on 30 May 1939
but the initial period of practice could only be brief. World War 2 was but months away. He was an early enlistee on 2 December
1939 and remained in military service for the six years of the War, being discharged
in December 1945. On his initial enlistment he was given the
rank of Staff Sergeant. When I was young I spent 12 years in the part-time army, the Citizen Military Forces, as the army reserve was then known and encounted
a number of Staff Sergeants and it is difficult to think of anyone to whom that rank was less
appropriate. Staff Sergeants tended to be, or the term Staff Sergeants tended to be a synonymous
for lurk merchant. Fortunately the Army took the same view and
he was commissioned six months later. He served in Australia and in New Guinea. He received promotions to Major, and was Mentioned
in Despatches. After completing his military service in December
1945 he resumed practice at the Queensland Bar. May I devote a moment to an event in his military
service. It concerns the “Battle of Brisbane”. Riots
and fighting in November 1942 between Australian and United States troops outside the American
PX then on the corner of Adelaide and Creek streets. Much was censored about it at the time. Much
has been written about it since. What I am about to say comes from Peter Thompson
and Robert Macklin’s 2000 work “The Battle of Brisbane”. The authors note that there was a brief lull
in the rioting as the wounded Australians were carried away and that the lull gave a
Major Cummins, Assistant Adjutant-General of the Queensland Line of Communication Area,
an opportunity to take command outside the PX. Cummins summoned a group of helmeted Australian
Army pickets to disperse the mob. They were armed with .303 rifles, but the
rifles weren’t loaded. The authors go on,
“The use of a shot guns by the Americans on Australian troops had enraged the rioters
and they urged the pickets to join them. One policeman said the majority of the
pickets, who had been hastily drawn from signals personnel, had ‘doubled back, mingled with
the rabble, passed their rifles over to anyone who would take them and changed their helmets
for hats or went bareheaded after secreting their steel helmets’. He heard rioters urge the pickets, ‘Shoot
the bastards, or give us your guns and we’ll use them.” Now there was, of course, an Army Court of
Inquiry after the event. The fact that a policeman’s recollection
of events might differ from that of others was brought home early to Sir Harry. The book continues,
“At the subsequent Army Court of Inquiry, Captain L.W. Barnes, the senior Australian
provost meaning military policemen present when the fighting broke out, explained that
he had ordered ‘five or six’ MPs to remove their armbands and move into the crowd ‘to
see if they could influence them to keep quiet’. Even though Captain H.T. Gibbs, the Queensland Area Deputy Assistant
Adjutant-General, claimed to have seen possibly 20 MPs thus undressed.” I am sure that Captain Gibbs gave his evidence
to the Court of Inquiry in what the old judges used to call “a frank and manly fashion”. I suspect, however, that Captain Barnes’
account was preferred. Then, in 1945, the war was over. And so back to the Bar. But not this time as a 22 year old, but rather
six years older and as a man with responsibilities. The responsibilities came about because on
17 November 1944 at the Presbyterian Church in Ann Street, he and Muriel Dunn were married. He was 27, she 25. Muriel was herself a lawyer. She came from Maryborough, from the well-known
Dunn newspaper family. It was a marriage of two immensely compatible
people. They were, to use an Australianism, “mates”,
close “mates”, and remained so throughout their joint lives. I said earlier that children, and families,
grow. As you can see they keep
on growing. There were four children of the marriage,
Barbara – a film producer, Margaret – a psychologist and co-founder of the polling
company ANOP, Mary – a teacher librarian and Harry – who is Deputy Director of General
Medicine at the Alfred Hospital in Melbourne and an Associate Professor of Medicine at
Monash University. Margaret and Mary are researching the Gibbs
family history. Some of the photographs tonight come from
their collection and I thank them of their assistance. I should mention one final thing about the
War, before turning to his practice at the Bar in the post War period. In 1944 he’d assisted in planning unified
post-war government for the then territories of Papua New Guinea. No doubt this played a part in his obtaining
in 1946 the degree of Master of Laws from the University of Queensland, the thesis being
The Laws of the Territory of New Guinea – Their Constitutional and Basic Content. He practised at the Queensland Bar until 1961,
taking silk on 7 February 1957. His practice developed rapidly and he acquired
a considerable reputation extending beyond Queensland, particularly in appellate, constitutional
and opinion work. He appeared in the High Court on quite a number
of occasions. This is, I think, a wonderful photograph capturing
the extent to which he enjoyed life at the Bar. But it captures also the essence of the Bar. Around you is the law as it has developed
so far – statutes, law reports, textbooks, articles. But in front of you lie the problems of the
day. And “the day” is different from the day
on which the decisions of the past were given. Some of what lies behind those decisions is
enduring. Some, not and 80 years ago many of the decisions
relied on were cases where the court in question had arrived at the “right” result in the
particular case, but without a very clear identification of the legal principle underlying
the result. One of Sir Harry Gibbs’ great skills, both
as counsel and jurist, was to identify the principle behind instance and this was so
whether it be as in matters of legal practice, and matters of substantive law. He enjoyed life at the Bar, but the bench
beckoned and he was appointed to the Supreme Court from 8 June 1961, at the age of 44. You will see the newspaper report of it, followed
by a photograph. He looks very young. He can be seen in the Supreme Court’s ceremonial
robes, including the full-bottomed wig, in the next photograph. Whitehouse v Queensland in the Privy Council
in which he defended successfully the validity of the State’s liquor licensing fees was
his last case as Council. He knew he was being appointed to the Supreme
Court shortly afterwards. He was the first of those who’d been undergraduates
at the University of Queensland Law School to be appointed to the Supreme Court, and
the Solicitor-General at his swearing-in said that “his appointment has been greeted with
unanimous assent. He’s been one of the most outstanding counsel
and in particular one of the most eminent lawyers of his generation”. At the time when he was appointed to the Supreme
Court, he’d also been a part time lecturer at Queensland University in commercial law,
evidence and legal interpretation and had been a member of the Board of the Faculty
of Law at that University from 1954. And he’d been a member of the Barristers Board
from 1951. The structure of the courts was then quite
different. There was no Court of Appeal in Queensland, there was no Court of Appeal in any of the states and the judges sat on the Full Court or Court
of Criminal Appeal in fairly strict rotation. The Family Court and Federal Court had
not been established. The Supreme Courts were invested with and
exercised almost all federal jurisdiction. In a day the Judge appointed to deal with
short, or urgent, matters the Chamber Judge as they were called, might deal with a number of undefended divorces, make a number of people bankrupt or discharge them from bankruptcy,
wind up or reconstruct companies, dispose of disputes as to custody or access to children,
construe wills or contracts, deal with applications for injunctions, resolve interlocutory
disputes in pending litigation, and then finish off the day with perhaps an application for
bail. What was noticeable was his facility in each area. Whether presiding over a criminal trial, or
in the Court of Appeal or in the Full Court, or on circuit, or hearing civil litigation,
or as the Chamber Judge, his ability to master the law and the facts rapidly was obvious.
So too, with procedural matters and with rulings on evidence. His fairness was manifest, and his broad experience
stood him in good stead for his later appointment to the High Court. There was a collateral benefit from the presence
on the bench of a young, very able and very articulate judge. Some of the other judges, perhaps a touch
“weary” perhaps a touch shop worn, found the competitive urge rekindled and their work
improved. Not all the judges of those days I have to
say were workaholics, and one or two found it good to have a very hardworking young judge
to whose broad shoulders some of their own work might be moved. As you’ve hear I became Sir Harry’s Associate
in early 1963. I was the third to hold that office. The first was a retired naval officer, Captain
Rhodes, always known as “Dusty” Rhodes. Dusty was a distinguished looking man of some
bearing, as can be seen from this photograph which
was taken in 1950 when he was Official Secretary to the Governor who was I think, Lt Gen Sir
John Lavarack. It was taken at the dedication of the Memorial
Gates at Marist College, Ashgrove. Dusty was there as Gibb’s associate for
the remainder of 1961, no doubt to show the new and much younger judge “the ropes”. Quite a few old soldiers served as associates
in those days. He was then succeeded in 1962 by Glen Williams
who’s here tonight later himself a leading silk, Judge and member of the Queensland Court
of Appeal. And I followed in 1963 and 1964. I hope that I don’t in any way offend Glen
by saying but I do not think that either he or I could match the strong jaw, firm gaze
and understated elegance of the old sea-dog. Judges’ associates, of course, are young
and impressionable and tend to regard the judges to whom they are Associates through
rose-tinted glasses, but to this impressionable young man it seemed clear that he was a judge
of outstanding ability. That’s a long time ago, since then I have
seen many judges in many courts in this country, and in others. My youthful view hasn’t been changed. It’s been reinforced. And I know that Glen Williams holds a similar
view. While a judge of the Supreme Court Sir Harry
was appointed to conduct two inquiries. The first in 1963 was as Chairman of the Inquiry
into the Australian Sugar Industry. The second in October 1963 to April 1964 was
as Royal Commissioner inquiring into the enforcement of laws in relation to the National Hotel
in Brisbane. The former inquiry recommended expansion of
the sugar industry, a recommendation which was well received at the time. The conduct of the National Hotel Inquiry,
however, was later criticised as too legalistic and not sufficiently investigative. The issue is discussed in Joan Priest’s
book at some length pages 43-51 for those interested. Could I indicate a photograph of the Inquiry
leaving the National Hotel after an inspection of it. On the right is Mr Justice Gibbs, to his left
Lindsay Byth, Counsel Assisting and later Chief Judge of the District Court. Doug McGill QC, counsel for the National Hotel
is next. Doug McGill was a good friend of Gibbs. He was sadly killed in a motor accident not
so long after these events. His son John was a member of the District Court. Bringing up the rear is Walter Campbell (WB)
QC, later Judge, Chief Justice of Queensland and Governor and his son Wallace is at the Bar. You will see that there is one person there
who is not taking account of the possibility of skin cancer and that is me. I’d been appointed Secretary to the Commission
but I am somewhat disloyally inclined to agree with criticisms of it. Having conducted a number of both private
and public inquiries since then, I think the lack of results reflected the times, the somewhat
inadequate resources of the Inquiry and a significant imbalance in legal representation. Notwithstanding the dramas of the National
Hotel inquiry, for the several years following it, Gibbs consolidated his position as a Judge
of the Supreme Court and by general agreement, was the outstanding judge. But 1967 brought about a dramatic change in
his life and in the life of his family. He was appointed a Judge of the Federal Court
of Bankruptcy and a Judge of the Supreme Court of the Australian Capital Territory, and he
and his family moved to Sydney. This is a photograph after his swearing in
the Australian Capital Territory. To adopt this course seemed surprising I have
to say. The office of Federal Judge in Bankruptcy
seemed hardly the most glittering of prizes, and much of the work of the Australian Capital
Territory Supreme Court was of a District Court level because there was no district
court. My view is that there were two factors of
particular significance in the decision. One was the carrot from the Commonwealth. It was proposing a new federal court, the
Commonwealth Superior Court, and it would need a young, active, vital, Chief Justice. For a short interim period, say six months,
the intended Chief Justice would be the Federal Judge in Bankruptcy to replace the deceased
Mr Justice Clyne, with jurisdiction in bankruptcy then to go to the new court. A proposal of such a nature was likely I think
to have fallen on fertile ground with Sir Harry, because of what I suspect was the other
factor, namely the appointment in the previous year of Mr Justice Mack as Chief Justice of
Queensland to replace Sir Alan Mansfield. I am not suggesting personal animosity, I
don’t think there was on either side. But the appointment was generally seen as
a step backward. It seemed to indicate that not much stock
was to be placed on ability or on the generally accepted views as to appropriate judicial
temperament. Or on diligence. However the proposal for a Commonwealth Supreme, Superior Court died a political death and so, for a time, limbo, if not purgatory. But salvation emerged in a relatively short
time. He was appointed to the High Court in 1970. The appointment was not entirely unexpected. It was to succeed Sir Frank Kitto, who resigned
to become Chancellor of New England University. It was said that there had been some tension between
Kitto and Sir Garfield Barwick, who had become Chief Justice in 1964. Whether this was right or wrong I am not able
to say, but I do know that on the occasions when I saw Sir Frank on the bench, his temper
matched his stature, which was short. The High Court became a calmer place with
Sir Harry’s appointment. At his swearing in Tom Hughes the Commonwealth
Attorney General paid tribute to his distinguished and broadly based practice, to his wide ranging
judicial experience and to the fact that his appointment had been received with acclaim. You will see the High Court of that time. From left to right Justice Walsh, Justice
Windeyer, Sir Edward McTiernan – Young Sir Edward, Chief Justice Barwick, Justice
Menzies, Justice Owen and Justice Gibbs. A pretty grim looking lot I think you’d
have to say. For those who are not familiar with these
things, it reflects the relative seniority of the members of the Court– Chief
Justice in the middle, the next most senior on his right, number three on his left and so on. The most recent appointments Walsh and Gibbs
where “on the wings”. Another record of the occasion can be seen
in this picture. The swearing in took place at Darlinghurst
in Sydney. The High Court had not yet moved to its permanent
home beside Lake Burley Griffin. As was the custom in those days, a knighthood
followed. The Governor General wielding the sword is
Sir Paul Hasluck. Sir Harry Gibbs’s 17 years on the
High Court saw great changes in its membership, in its role and in the nature of its work. In relation to its membership, retirements
of Sir Victor Windeyer in 1972, Sir Edward McTiernan in 1976 and deaths, Sir William
Owen in 1972, Sir Cyril Walsh in 1973 and Sir Douglas Menzies in 1974 meant that in
just over six years he had become the most senior member of the High Court other than Chief
Justice Barwick. Sir Kenneth Jacobs, who had been a later appointment,
also resigned in that period. And after Sir Harry became Chief Justice, there
were two further deaths Aickin in 1982 and Murphy in 1986 and Sir Ninian Stephen resigned
to become Governor-General. The High Court in 1976, this time, you
can see. And it is taken in Melbourne, at the High Court’s then Melbourne premises in Little
Bourke Street. The High Court at that stage was still peripatetic. It followed the sun and came to Queensland
for about three weeks each June. While there was a good deal of work, there
was still some time for relaxation. And for casual attire. On Sir Harry’s left is Sir Anthony Mason
slightly less formally dressed and I think the man in the dark shirt second from the
right in the front row is Jack Kimins whose son went on the District Court, whose son
is at the Queensland Bar. While the process of abolition of Australian
appeals to the Privy Council had commenced in 1968, it wasn’t completed until the passage
of the Australia Acts in 1986. At the time of his appointment to the High
Court a significant range of Australian matters could thus still be heard by the Privy Council,
including some appeals from the High Court itself. It had become the custom to appoint members
of the High Court to the Privy Council as members of the Privy Council and he was appointed
a Privy Counsellor in 1972. He was as I understand it the second last
High Court Justice so appointed. Sir Ninian Stephen being the last. He went to London on three occasions to sit
on the Judicial Committee of the Privy Council. It’s then premises were on the corner of
Downing Street and Whitehall, two doors away from number 10. He told me that the room for the visiting
judge from overseas had a plate on the door saying “Colonial Judge’s Room”. He requested and secured its removal. Let me turn to the changes in the role of
the High Court and in the nature of its work in his time. At the time of his appointment to that Court,
most civil appeals to the Court were as of right, leave or special leave was not required,
and there were sometimes from a single judge of a Supreme Court. Those appeals were usually heard by three
Judges. Judges sitting alone still heard a number
of matters in the Court’s original jurisdiction. During his period on the Court, the range
of appeals as of right was reduced in stages, until in 1984 the requirement of special leave
became general. The transfers of jurisdiction consequent on
the establishment of the Federal Court effectively removed the single-Justice cases. The restriction on and ultimate abolition
of appeals to the Privy Council, and the extension of the requirement for special leave to appeal,
changed the role of the High Court significantly. It became in the fullest sense the final court
for Australia and it could select the appeals that it heard. And in the constitutional area things also
had changed. To recapture the political atmosphere prevailing
in the early 1970s is a little difficult after the passage of more than 40 years but, to
put it shortly, the relative positions of the Commonwealth, the States seemed rather
different. The States seemed more influential than they
now are, and have more independence from, and less dependence on, the Commonwealth Government, including of course, particularly access to money. The range of activities engaged in or regulated
by the States was greater and in practical terms they seemed to affected people’s lives
rather more. The phrase “States’ rights” was much
used as a political slogan, but it seemed to convey, to some extent at least, a notion
that there were spheres of activity into which, as a matter of propriety in a federal system,
perhaps also as a matter of constitutional law, the Commonwealth shouldn’t enter. That conception was supported to a degree
by the political circumstances. The Liberal Country Party coalition under
Sir Robert Menzies, Mr Holt, Mr Gorton and Mr McMahon had been in government since 1949. Whilst there had been some major Commonwealth
legislation in former State areas such as the Matrimonial Causes Act 1959, promoted
by Sir Garfield Barwick when Attorney General and whilst Mr Gorton’s Government had
flexed the Commonwealth muscles to a degree, overall the situation had remained fairly
static. But that all changed when the Whitlam Government
came into power in late 1972. That government had a quite different perception
of the appropriate use of central political, legislative and economic power. After a generation in opposition it had an
enthusiasm to use it. Inevitably that would create tensions which
would result in constitutional litigation. And constitutional litigation which had a
political taint to it. Not just because it was States against the
Commonwealth, but also because the States principally challenging were governed by non-Labour
governments. It had the consequence that a Justice in the
High Court who decided a matter in favour of the Commonwealth was labelled “centralist”, in favour or against of the Commonwealth was labelled centralist or “States’ righter” depending
on the way in which he decided the matter. I say he, there were no female members of
the High Court in those days. Justice Gordon was the first. The extent of Commonwealth activity can be
seen by looking at, for example, the double dissolution cases – Cormack v Cope, Victoria
v. The Commonwealth and Western Australia v The Commonwealth. People are dusting off those old cases now. They involved the validity of legislation
which halved the extent to which there could be variations in the numbers of voters
between federal seats they provided for representation of the territory in the Senate they, introduced
a health insurance regime, and they established a Commonwealth Petroleum and Minerals Authority. The proposed electoral change was as you could
image anathema to the Country Party. It was likely to reduce the number, but increase
the area of, country electorates. The presence of territory senators would reduce
the power of the States in the Senate. And uniformity of health administration along
Commonwealth lines would be likely to as it did as a casualty Queensland’s much vaunted
free hospital scheme. And the powers of the Petroleum and Minerals
Authority would be used or could be used to control practically the exploitation of natural resources
in the oil or minerals rich States. If one adds to the various laws, the loss to the States
of sovereignty over their off-shore areas which was effected by the Seas and Submerged
Lands Act in 1973 which has held valid in New South Wales v. The Commonwealth in 1975. It’s clear that the position of the States
appeared to be in serious, and rather rapid, decline. And one can also see that life on the High
Court during that period was rather busy, and also high profile. The fact that the Whitlam government only
held office for only three years has rather been obscured by Mr Whitlam’s Olympian presence
and his continued public visibility for many years thereafter. But the taste which the Commonwealth had had
of the exercise of its powers was addictive and Mr Malcolm Fraser’s coalition government
which followed Whitlam’s had no hesitation in using Commonwealth powers when it chose,
for example by use of the trade and commerce power in section 51(i) of the Constitution to prevent mineral sand mining on Fraser Island, Murphyores v. The Commonwealth in 1976. Nor have successive Commonwealth governments
much restrained themselves. The High Court moved to its new premises in
Canberra in 1980. You will see the composition of the Court
then. Sir Garfield Barwick still presiding. The new, then very new screen behind the Judges
and Sir Harry Gibbs as number two. When Sir Garfield retired in 1981, he’d
been rather a, building that court had been rather one of his projects. Some Chief Justices seem to be a little obsessed
by buildings some times. The Fraser Government appointed Sir Harry
as the new Chief Justice except in Queensland. He had been Acting Chief Justice on many occasions
and the appointment was well received by the legal profession and by the press. Sir Gerard Brennan became the replacement
Justice. Gareth Evans, then a Labour Senator and the
Federal Opposition’s spokesman on legal matters, was perhaps a touch less than generous
in his praise of the appointment of the Chief Justice. You can probably read that but it was a less
than resounding endorsement. The paragraph I don’t think you can see
that immediately follows that is the one where he waxes lyrical about Sir Gerry Brennan and
how wonderful he would be. Now in due course Sir Harry was sworn in as
Chief Justice. You can see, I think three photographs together
that show the events of that time. He participated in many decisions in his 36
years as a judge and it would be impossible to deal with them satisfactorily here. A very comprehensive discussion of them, on
which I couldn’t improve, may be seen in Glen Williams’ paper in ‘Queensland Judges
on the High Court’ to which I have referred. What may be said is that he believed in development
of the law and in change, when necessary by judicial decision, but he did not regard
courts, including the High Court, as necessary a vehicle for major social change. It is unlikely I think that he would’ve
decided the Mabo cases in the same way as their majorities, he would have regarded so
significant an alteration as a matter for the legislature. And one aspect of his views could be seen
in his observations in the Second Territorial Senators Case, when he had to deal with question
of overruling previous decisions and he said, “No Justice is entitled to ignore the decisions
and reasoning of his predecessors, and to arrive at his own judgment as though the pages
of the laws reports were blank, or as though the authority of a decision did not survive
beyond the rising of the Court”. He elaborated upon that rather, but that was in effect
what he said. Now, of course there are views one way or the
other about whether that’s the appropriate course and hardly surprisingly results in that
regard can tend to be tempered rather by the nature of the matter being heard. As Chief Justice, he presided with dignity and fairness and efficiency. A particular problem he had was the strain
imposed on the Court by the ‘Murphy affair’, particularly when Justice Murphy insisted
on remaining on the Bench when inquiries into the allegations against him were still
pending. During his time as Chief Justice he represented
the High Court overseas on a number of occasions, in China, at Lawasia in Manila, in India and
in Malaysia After retirement, he remained very involved
in legal and in community affairs. From 1987-1991, he was Chairman of a committee
reviewing the Commonwealth’s criminal laws. In 1989, he was Chairman of an inquiry established
by the Queensland Parliament in relation to the conduct of two judges. In 1990 and 1991
he conducted for New South Wales an Inquiry into Community Needs and High Voltage Transmission
Line Development a matter that will probably never be resolved. He was also the Menzies Lecturer at the University
of Virginia in 1987 and in the same year Chief Adjudicator in the BHP Pursuit of Excellence
awards and Chairman of the Australian Tax Research Foundation from 1990. He also served as the President of the Kiribati
Court of Appeal from 1988 to 1999. This was one of Australia’s initiatives
to assist the Pacific countries with the rule of law. You will see however that it was not all work. And the other two members on his right as
best I recall are, Ray Reynolds who had been on the New South Wales Court of Appeal and
Peter Connolly who’d been a Judge from here of course. And there were also in 1990 trips to Japan, and
in 91 French Polynesia and Fiji. After retirement, perhaps partly as a response
to what he saw as the judicial activism of the Mason Court, he himself became active, and rather
more vigorously than one might have expected, in public discussion of constitutional law
and related issues. A particular interest was the presidency,
since 1992, of the Samuel Griffith Society, a conservative body formed to promote the
discussion of such matters. He also took an active part against the proposal
for an Australian republic in the campaigns leading to the 1999 referendum. I said to him one day when we were having
lunch, I said “If you keep this up, people will say you’re the first judge since Bert Evatt
to leave the High Court for politics”. He took that in rather good spirits and said,
“Oh, no they won’t”, they won’t. During his lifetime he, I use to be able to mimic his voice but I
rather lost the capacity to do that. During his lifetime he received many honours. On appointment to the High Court he’d been created
KBE as you saw, on appointment as Chief Justice he was appointed Knight Grand Cross of the
order of St Michael and St George. And you’ll see, that Sir Ninian Stephen then Governor
General is doing the job and on retirement he was made a Companion of the Order of Australia. And then you will see Sir Ninian Stephen awarding
him that. He was a recipient of Centenary Medal in 2003. He was an Honorary Bencher of Lincoln’s
Inn and had been awarded honorary doctorates in law from the University of Queensland and
Griffith University. And although he was in many respects a private
man, he was personally very popular and was highly regarded for his companionship, good
humour and erudition. That can been seen I think from the photograph
of the dinner given him when he became Chief Justice in 1981 by his Associates to that
time. You will see a few familiar faces there. And for some of us time has rather moved on. On his retirement in 1987, the entry in the
Australian Law Journal concluded, “in all necessary respects he was a model Chief Justice
of Australia”. I would elaborate by repeating the words we
used of him in the entry to the Oxford Companion to the High Court, namely that he “brought
to the High Court great strength of intellect, wide knowledge and experience, a swift grasp
of complex issues, a strong underlying sense of fairness and justice, and outstanding clarity
of expression.” He died, as you know, on 25 June 2005. He was 88. Thank you all for listening to me tonight. [APPLAUSE] Well it perhaps seems a little unnecessary to move a vote of thanks given the spontaneous
reaction but it is my pleasure to thank David on your behalf for that lecture. As always eloquent, educational and entertaining. And from a man really who is best placed to give
us the paper. Can I ask you once more to thank David. [APPLAUSE]

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