Ceremonial - Sitting in Memory of the Late the Honourable John Leslie Toohey AC - Perth

[2015] HCATrans 182

[2015] HCATrans 182

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

SPECIAL SITTING

IN MEMORY OF

THE LATE THE HONOURABLE JOHN LESLIE TOOHEY AC

AT

PERTH

ON

MONDAY, 10 AUGUST 2015, AT 2.00 PM

FRENCH CJ:   This special sitting in Perth is convened to honour the memory of the late Honourable John Toohey AC, a former Justice of this Court, who died on 9 April 2015. 

Present in Court today are John Toohey’s widow, Loma Toohey, to whom he was married for 62 years, and members of the Toohey family.  The Justices of the Court extend to them their deepest sympathy. 

Also present in Court are the Chief Justice of Western Australia, the Chief Judge of the District Court, the Chief Magistrate, the President of the Children’s Court, members of the Supreme and Federal Courts, the Solicitor‑General for Western Australia, the Solicitor‑General for Victoria, the President of the Law Society of Western Australia and Mr Colvin, SC, a former Associate of John Toohey, representing the President of the Western Australian Bar Association.  I also acknowledge the Dean of the Law School at the University of Western Australia, of which John Toohey was a graduate and sometime lecturer and visiting professor.  The Court also thanks the many members of the legal profession in Western Australia and others who have come to this special sitting.

John Leslie Toohey was born in Perth on 4 March 1930, the son of Albert and Sylvia Toohey.  He was the eldest of a family of four children.  He lived a substantial part of his childhood in the country towns of Meekatharra, Kojonup and Lake Grace.  By the time he commenced his secondary education the family was living in Perth.  He attended St Louis school in Claremont, a secondary college conducted by the Jesuit order.  After matriculating, John Toohey enrolled in law at the University of Western Australia and graduated with Honours in 1950.  He also later completed a Bachelor of Arts degree.  In his final year at law school he won the FE Parsons Memorial Prize for Law as the graduate exhibiting most merit through the entire law course and the Keall Prize for Law for the best law student in his final year.

At his swearing‑in as a Justice of this Court in 1987, the Commonwealth Attorney‑General, the Honourable Lionel Bowen, said that when the matter of his appointment was before Cabinet, the Prime Minister, Robert Hawke, testified to John Toohey’s academic brilliance by acknowledging that he, the Prime Minister, had run second to Toohey at law school.

Upon completing articles of clerkship, John Toohey was admitted to practice and after a short time established with Jonathan Ilbery the law firm known as Ilbery and Toohey.  He was then 24 years old.  He practised in that firm until 1967 when he joined the Western Australian Independent Bar, which had been established five years earlier by Francis Burt QC, later to become Chief Justice of Western Australia.

In 1968, at the age of 38, he was appointed Queen’s Counsel.  He served as President of the Western Australian Bar Association in 1970 and as President of the Law Society of Western Australia in 1972 and 1973.  He lectured in Real Property and Legal History at the University of Western Australia.  He appeared in numerous cases in the High Court.  His first appearance as leading counsel was at the age of 31 when he represented the successful respondent in the matter of Commissioner of Taxation v Finn (1961) 106 CLR 60. His High Court practice covered the areas of tax, criminal law, property law, contract and restitution.

In 1974, John Toohey and Loma and their family went to Port Hedland for a year to establish the first regional Aboriginal Legal Office in Western Australia and to provide representation for Aboriginal people in the Pilbara.  He was on a very modest retainer from the then newly established Aboriginal Legal Service of Western Australia.  His work in the Pilbara was of historic significance.  For the first time, Aboriginal people in the region, who had been largely unrepresented in the courts, had access to the highest quality representation and advice from one of the State’s most prominent and accomplished legal practitioners. 

The year in Port Hedland began a long engagement with Australia’s indigenous people.  An important event in that engagement was his involvement in 1975 in the Royal Commission conducted by Gresley Clarkson, Ernest Bridge and Elliott Johnston to inquire into incidents at Laverton and Skull Creek in December 1974 and January 1975 between police and local Aboriginal people and the court proceedings which followed.  He represented Aboriginal communities at Warburton and Docker River and other Aboriginal people charged with offences at Laverton during the period covered by the Commission’s inquiry.

In April 1977, John Toohey was appointed as the first Aboriginal Land Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976. That Act had been passed to give effect to recommendations of the Woodward Royal Commission and established Australia’s first statutory land rights scheme. He was also appointed at that time as a judge of the newly established Federal Court of Australia and as a judge of the Supreme Court of the Northern Territory. His appointment to the Federal Court followed shortly after that of Sir Gerard Brennan and was in the same year as Sir William Deane. They often sat together on Full Federal Court appeals and later, of course, as members of this Court.

He served in the office of Aboriginal Lands Commissioner until 1982.  Although based in Darwin during his time as Commissioner, he came frequently to Perth to hear Federal Court cases as there was no resident Federal Court judge here during that time.  In his five years as Aboriginal Lands Commissioner, Justice Toohey heard and reported upon 14 land claims.  He had no precedents on how to undertake inquiries under the Act because the traditional land claims for which the Act provided were without precedent.  He developed procedures for taking evidence adapted to the unique nature of the claims and the concept of traditional ownership underlying the statutory scheme.  Much of his time was spent conducting hearings on country with evidence from traditional landowner groups and anthropological experts. 

The Act and the special freehold rights which it created were contentious.  It generated numerous legal challenges to the High Court, a number of which bore the Commissioner’s name.  The practices and procedures which he developed, and the understanding of traditional ownership and customary law reflected in his reports, became a national resource.  His successors as Aboriginal Land Commissioners, Federal Court judges hearing native title claims after the decision of this Court in Mabo v Queensland (No 2) (1992) 175 CLR 1 and the enactment of the Native Title Act (1993) and members of the National Native Title Tribunal engaged in mediating claims drew from and built upon that great legacy of his time as the inaugural Aboriginal Lands Commissioner. 

After Justice Toohey completed his term as Commissioner in 1982, he became the resident Federal Court judge in Perth.  One of those who spoke at his swearing‑in to this Court in February 1987, Daryl Williams QC, who is present today, then the President of the Law Council of Australia and later to become Attorney‑General of the Commonwealth, spoke of his exceptionally wide judicial experience on both the Federal Court and the Supreme Court of the Northern Territory in civil and criminal matters.  Mr Williams referred to his outstanding judicial reputation for dealing expeditiously with a very large volume of work and producing judgments of the highest quality.  He was known by all the profession, in the words of another tribute at his swearing‑in to this Court, as “a most accomplished, courteous, benevolent and popular Judge”. 

Justice Toohey’s work as a member of this Court is recorded in the judgments in which he wrote and participated which begin in volume 162 of the Commonwealth Law Reports and conclude in volume 194.  His service as a Justice reflected the promise of his reputation, his high intelligence and the wide judicial and non‑judicial experience which he had accumulated at the time of his appointment.  His experience embraced constitutional law, the interpretation and application of the immense landscape of Commonwealth, State and Territory statutes and, of course, the common law of Australia in its great variety of applications. 

In a speech he gave in 1990 to the Amnesty International Lawyers Group, he said of the common law in its application to minorities, that it may not so much have failed as not been adequately tried.  As a member of the Court that decided Mabo v Queensland (No 2), he played a significant role in its development to allow it to take cognisance of traditional, indigenous rights and interests in land and waters in Australia.  He defied ready labelling.  Some of his judgments some would call conservative, others, some would call progressive - largely by reference to their outcomes.  He dismissed media references to him as an activist, observing that, “A decision not to change the law or not to develop the law is just as ‘activist’ as a decision to change the law”.

Justice Toohey’s contribution to the work of this Court is to be measured not only by his judgments, but also by the way he worked with his colleagues.  The Court is a collegial institution.  Its authority depends critically upon the co‑operative endeavours of seven people, each of whom has an independent personal responsibility for the judgments he or she writes or joins in.  John Toohey is remembered by former Chief Justice Sir Gerard Brennan as one of the most collegial of colleagues.  As the Justices of the Court said in their public statement after his death earlier this year:  “He is remembered with deep affection and respect by his former colleagues on the Bench and by all who knew him.”

Justice Toohey retired from this Court in February 1998, having served 11 years as a Justice.  After his retirement he undertook sessional judicial service in Kiribati and Fiji.  He was also appointed a Visiting Professor of Law at the University of Western Australia.  In September 2000, he was appointed as a member of the Bloody Sunday Inquiry, established by the Government of the United Kingdom and chaired by Lord Saville, to inquire into events of 30 July 1972 in Derry in Northern Ireland.  The work of that inquiry based in London was to occupy much of his time until it reported in June 2010. 

Justice Toohey’s service to Australia was recognised, even before his appointment to this Court, when he was made a Companion in the Order of Australia in 1986.  He was also the recipient of honorary doctorates of law from his alma mater, the University of Western Australia, and from Murdoch University.  He had, as one would expect, a deep commitment to the rule of law of which he said in a lecture delivered at the University of Western Australia in April 1998, “The rule of law, the concept that we are all subject to the law and that no one is above it, is an essential element of a free society”.

As the Justices of the High Court said in a public statement published on the High Court website shortly after Justice Toohey’s death, his contributions were deep and enduring.  Like his Western Australian predecessor on this Court, Sir Ronald Wilson, whose memory was honoured in a similar ceremony in 2005, he made a distinctive and valuable contribution to the work and life of the Court.  To adopt what former Chief Justice Murray Gleeson said on the occasion of that ceremony in Perth, there is no more appropriate place for us to acknowledge John Toohey’s life and work.

The members of the Court thank you for joining us on this occasion.

The Court will adjourn until 2.30 pm.

AT 2.13 PM SHORT ADJOURNMENT