Ceremonial - Barwick - In Memory - CER

[1997] HCATrans 202

H I G H   C O U R T   O F   A U S T R A L I A

CEREMONIAL SITTING

IN MEMORY OF

THE RIGHT HONOURABLE SIR GARFIELD EDWARD JOHN BARWICK, AK GCMG

at

CANBERRA

ON

TUESDAY, 5 AUGUST 1997, AT 9.32 AM

Coram:

BRENNAN CJ
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J

In addition to the members of the Court the following dignitaries were present on the Bench:

The Honourable Sir Ronald Wilson, AC, KBE, CMG, QC, former Justice of the Court

The Honourable Justice Jeffrey Miles, AO, Chief Justice, Supreme Court of the Australian Caapital Territory

At the Bar Table the following persons were present:

The Honourable Daryl Williams, AM, QC, MP, Attorney-General (representing the Prime Minister)

Dr Gavan Griffith, AO, QC, Solicitor‑General for the Commonwealth

Mr Richard Burbidge, QC, representing the Australian Bar Association and the New South Wales Bar Association

Mr W.C.R. Bale, QC, Solicitor‑General for Tasmania, representing the Bar Association of Tasmania and the Law Association of Tasmania

Mr R.C. Macaw, QC

Mr James Douglas, QC, Vice-President, Bar Association of Queensland

Mr Ron Williams, QC, Vice-President, ACT Bar Association

Mr David Curtain, QC, Acting Chairman and Senior Vice-Chairman, Victorian Bar Council

Mr Bret Walker, SC, representing The Law Council of Australia, Queensland Law Society Inc.

Mr R.J. Meadows, QC, Solicitor‑General for Western Australia

Mr A.J.L. Bannon, SC

Mr Chris Chenoweth, Vice-President of the Law Society of the Australian Capital Territory

Mr Patrick Fair, President, Law Society of New South Wales

THE CHIEF JUSTICE OF AUSTRALIA, THE  HONOURABLE SIR GERARD BRENNAN, AC, KBE:

Garfield Edward John Barwick was born on 22 June 1903 and died on 13 July 1997.  It was a life full of achievement in a number of fields.  Today the Court is assembled to remember his contribution as the Court's longest-serving Chief Justice.  Joining us on the Bench is Sir Ronald Wilson, who served as a Justice during Sir Garfield's term of office, and Justice Jeffrey Miles, the Chief Justice of the Australian Capital Territory.  Unable to be with us today but desiring to be associated with our tribute to Sir Garfield are his successors in the office of Chief Justice, the Rt Hon Sir Harry Gibbs and the Hon Sir Anthony Mason.  The Chief Justice of New Zealand, the Rt Hon Sir Thomas Eichelbaum, also wishes to be associated with this remembrance of Sir Garfield's work.  We note the presence of others at this morning's proceedings:  the Hon Daryl Williams, Attorney-General for the Commonwealth, the Hon Justice Higgins of the Supreme Court of the Australian Capital Territory, the Hon Kevin O'Leary (sometime Chief Justice of the Northern Territory), the Solicitors-General for the Commonwealth, for Tasmania and for Western Australia, representatives of the Law Council of Australia, the Australian Bar Association, the Bar Associations of New South Wales, Victoria, Queensland and Tasmania, the Law Society of New South Wales, the Queensland Law Society, the Law Association of Tasmania and the Law Society of the Australian Capital Territory.

Sir Garfield came to the office of Chief Justice after a career distinguished by its brilliance.  Called to the Bar in 1927, appointed Queens Counsel in 1941, he bestrode the profession of advocacy like a colossus.  His reputation as an advocate, already well established in this country, was made in England by an outstanding argument in the Banking Case in 1949, delivered over six days before the Privy Council.  In later life, he enjoyed recounting his early life at the Bar when he was learning the art of judicial persuasion of which he became a master.  His genius lay in that lucidity of presentation which requires complete familiarity with the subject and incisiveness of mind.  Some indication of his practice in this Court may be gleaned from appearances reported between volumes 51 and 104 of the Commonwealth Law Reports - between April 1934 and April 1961.  During his life at the Bar, he was President of the New South Wales Bar Association, an Executive Member of the Law Council of Australia and one of the chief promoters of the building in Phillip Street Sydney in which the New South Wales Bar found a permanent home.

He entered the Federal Parliament as the Member for Parramatta in 1958.  He was appointed Attorney-General and later Minister for External Affairs in the Menzies administration.  He was appointed Chief Justice on 27 April 1964 and took the oaths of allegiance and office on 1 May following.  He presided over the Court with considerable vigour, testing the propositions advanced and apparently enjoying the dialectic between Bench and Bar.  Some barristers found difficulty with his interventions; others delighted in the opportunity to debate concepts with a mind that was both agile and informed.

The judgments which he wrote - sometimes drafted while argument was continuing - can be found in over 40 volumes of the Commonwealth Law Reports.  They cover a wide spectrum of the law.  His judgments, which illuminated issues of great significance and difficulty, include Mutual Life & Citizens' Assurance Co Ltd v Evatt; Strickland v Rocla Concrete Pipes Ltd, Breskvar v Wall, the Seas and Submerged Lands Case, R v O'Connor - to name a few.  Inevitably the judgments which he wrote have affected the development of the law.  Sometimes they settled the law for the future, sometimes they formed part of that great reservoir of ideas on which the Courts draw, day by day, in the refining and evolution of legal principles.  That is the nature of our system.  It is true to say that the contemporary jurisprudence of this country owes much to Sir Garfield's judicial writing.

If his term of office had a theme, it was the importance to the nation of judicial independence, especially the independence of the High Court.  He expressed the theme in his book, "A Radical Tory", published at the age of 92.  He wrote:

"The important thing is that liberty is not necessarily secured by verbal formulae, as in a Bill of Rights, however precise in their expression.  Rather, it is an independent judiciary, by developing and applying the principles of the common law with its emphasis on the essential importance of the individual and the citizen's duty to his neighbours, its insistence on the observance of natural justice where the citizen is likely to be affected in person or property and the use of habeas corpus in relation to physical restraint, and requiring the executive and legislative arms under their allotted limits, which will ensure that tyranny does not gain sway."

Conscious as he was of the responsibilities of the several branches of government, he was insistent upon the independence of the judicial branch from the legislative and executive branches.  When he led the Justices into the Senate Chamber, wigged and gowned and carrying the tricorn hat, he placed the hat on the table of the Senate as a gesture of the independence of the Judiciary from the Legislature.  And he secured the passage of The High Court of Australia Act 1979 which gave the Court administrative independence from the Department of the Attorney-General and provided for the Court itself to administer its affairs and to control the precinct on which this building stands.  Although he accepted appointment to the Privy Council, as was the practice at the time, he was instrumental in obtaining the passage of the Acts which terminated appeals to the Privy Council from this Court and from any Australian Court in matters of federal jurisdiction.  And so he was able to say in Viro v The Queen:

"I am of opinion that this Court is no longer bound by decisions of the Privy Council whether or not they were given before or after the date when the Privy Council (Appeals from the High Court) Act 1975 (Cth) became effective."

The abolition of appeals from this Court to the Privy Council cast on this Court a responsibility for declaring the law for Australia freed from the binding effect of English precedent but free to draw on the enlightenment which they offered.  Even before the passage of the 1975 Act, he stated the function of this Court in his judgment in Mutual Life & Citizens' Assurance Co Ltd v Evatt:

"The Court's task.....is to declare the common law.....for Australia.  .....to express what is the law.....as appropriate to current times in Australia.  This will not necessarily be identical with the common law of England.....where no authority binds or current of acceptable decision compels, it is not enough, nor indeed apposite, to say that the function of the Court in general is to declare what the law is and not to decide what it ought to be.....  But, of course, the Court is not to depart from what it realizes the common law would provide in order to arrive at some idiosyncratic solution.  So to do is to attempt to legislate and to tread forbidden ground."

After the abolition of appeals from this Court to the Privy Council in 1975, he restated the position in R v O'Connor:

"the Court has a very heavy responsibility.  It would be easy simply to accept the declarations of common law which have heretofore been made by any of the courts of the United Kingdom, particularly if they are of long standing...  But it seems to me quite inadequate in the performance of its high obligation for the Court merely to accept without its own close, critical and independent examination those declarations of the common law which heretofore have been made.....  The Court must, in my opinion, decide for itself upon principle what is the common law.  It must make its declaration of principle in the sense of the common law as it understands it to be and to have been."

His conception of the Court's function was translated into practical form in the location, design and construction of this building which is the permanent seat of the Court.  It is situated in the Parliamentary triangle, manifesting the Court's character as one of the branches of Government; its location is so sited as to stand independently of all other buildings and at a height that reflects the supremacy of the law.  He saw the law not as a sword but as a shield for individual rights, and the symbol of that view can be seen in the shield motif of the door of entry into the main Courtroom.  He secured the weaving of the tapestry - heraldically correct though without supporters - hanging on the Courtroom wall demonstrating the unity of the law which welds the States into the federal Commonwealth.  Perhaps most importantly he saw this Court as a Court for the Australian people who should be free to come and go within this building and to witness here the impartial and open administration of justice according to law.  It is an enduring monument to his vision, his administrative ability and, indeed, to his architectural discernment.  His supervision of the project was as detailed as might have been expected of a clerk of works.

The Justices, the Court staff and the profession who work here owe him a debt of gratitude for the foresight which make it an accessible and efficient place of research, of oral argument and of judgment preparation.  He was the designing force of the libraries, of the courtrooms and of the recording and transcribing systems.  The mechanics of judicial work may not have been the most newsworthy of Sir Garfield's activities, but he saw them to be vital to efficient judicial work.

It seems that the most newsworthy event in his varied career was the tendering of advice to Sir John Kerr in November 1975, a course for which he could find precedent in the tendering of advice by some of his predecessors in office.  It was, and remains, a controversial matter but, if only on that account, will not happen again.  It can now be seen as a subject of academic interest, not the defining event in a life of other achievement.

I cannot conclude this tribute to Sir Garfield without reference to Lady Barwick who, with his children Mr Ross Barwick and Mrs Diane Roberts and their families, survive him.  Lady Barwick has been the constant and much appreciated companion in all that Sir Garfield achieved.  Well and affectionately known to the Australian legal profession, she has been a gracious figure in the social life of the Court and of the Australian judiciary.  To her, to their children and to their children's children, the Court extends its sympathy.  They may be comforted by the knowledge that Sir Garfield Barwick, Knight of the Order of Australia, Knight Grand Cross of the Most Distinguished Order of St Michael and St George, gave great service to the Legislature, the Executive and the Judiciary of the Commonwealth, and especially to this Court.

AT 9.45 AM THE COURT ADJOURNED