Ceremonial Sitting in Memory of the Late the Honourable Sir Francis Gerard Brennan AC KBE QC

[2022] HCATrans 135

[2022] HCATrans 135

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 LATE

THE HONOURABLE SIR FRANCIS GERARD BRENNAN AC KBE QC

AT

CANBERRA AND BY VIDEO CONNECTION

ON

THURSDAY, 18 AUGUST 2022, AT 10.00 AM

Coram:

KIEFEL CJ

GAGELER J
KEANE J

GORDON J
EDELMAN J
GLEESON J

PRESENT IN COURT

At the at Bar Table the following persons were present:

The Hon Mark Dreyfus QC MP, Attorney-General of the Commonwealth of Australia

Mr Justin Gleeson SC

Mr Dan O’Gorman SC

Ms Madeline Brennan QC

Mr Tom Brennan SC

Dr Matt Collins AM QC, President, Australian Bar Association

In the Bar area the following persons were present:

Mr Peter Garrisson SC, Solicitor-General for the Australian Capital Territory

Mr Joshua Thomson SC, Solicitor-General for the State of Western Australia

Mr Michael Wait SC, Solicitor-General for the State of South Australia

Mr Nikolai Christrup SC, Solicitor-General for the Northern Territory

Ms Rowena Orr QC, Solicitor-General for the State of Victoria

Mr Gim del Villar QC, Solicitor-General of the State of Queensland

Mr Tom Sullivan QC, President, Bar Association of Queensland

Ms Róisín Annesley QC, President, Victorian Bar

Ms Gabrielle Bashir SC, President, Bar Association of New South Wales

Mr Martin Cuerden SC, President, Bar Association of Western Australia

Mr Andrew Muller, President, ACT Bar Association

Mr Ron Levy (representing President of Northern Territory Bar Association)

Ms Kateena O’Gorman

Mr John McCarthy QC

Mr Peter Taylor SC

Mr Chris O’Grady QC

Mr Richard J Harris

Ms Michelle Rabsch

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

The Hon Sir William Deane AC KBE QC

The Hon Paul Keating

The Hon Anthony Murray Gleeson AC QC (in Sydney Courtroom)

The Hon Chief Justice Allsop AO, Chief Justice of the Federal Court of Australia

The Hon Chief Justice Kourakis, Chief Justice of the Supreme Court of South Australia

The Hon Chief Justice Bowskill, Chief Justice of the Supreme Court of Queensland

The Hon Chief Justice Alstergren AO, Chief Justice of the Federal Circuit and Family Court of Australia

The Hon Justice Julie Ward, President of the New South Wales Court of Appeal

The Hon Julian Leeser MP, Shadow Attorney-General

The Hon William Gummow AC QC

The Hon Kenneth Hayne AC QC

The Hon Justice Anthony Cavanough, Supreme Court of Victoria

The Hon Justice John Bond, Court of Appeal of the Supreme Court of Queensland

The Hon Justice James Elliott, Supreme Court of Victoria

The Hon Justice Roger Derrington, Federal Court of Australia

The Hon Justice Sarah Derrington, Federal Court of Australia

Mr Tass Liveris, President, Law Council of Australia

Ms Elizabeth Carroll, President, ACT Law Society

In the body of the Court the following family members were present:

Father Frank Brennan SJ AO

Madeline Nwokora

Patrick Nwokora

In the body of the Court the following Former Associates were present:

The Hon Roslyn Atkinson AO

Ms Simonetta Astolfi

Rev Katherine Merrifield

Ms Kate Barrett

Ms Della Stanley

Ms Margaret Tregurtha

Professor Gerard Carney

Professor Patrick Keyzer

Mr Daniel Clough (in Melbourne Courtroom)

In the body of the Court the following former personal assistants were present:

Robyn Martine

KIEFEL CJ:   This ceremonial sitting is held to mark the death on 1 June 2022 of Sir Francis Gerard Brennan, or Sir Gerard, as he was known.  Sir Gerard was a Justice of the Court from 1981 to 1995 and served as its tenth Chief Justice from 1995 to 1998.  He was the third Chief Justice to hail from Queensland.

Justice Steward regrets that he is unable to sit with us today.  Present in the Court this morning is Sir William Deane, who served with Sir Gerard on this Court.  The Honourable Murray Gleeson is present in the courtroom in Sydney.  Sir Anthony Mason, who preceded Sir Gerard as Chief Justice and Sir Darrell Dawson, who also served with Sir Gerard, regret that they are unable to attend.

There are many apologies, including from the Prime Minister; the Chief Justice of New Zealand; and former members of this Court, the Honourable Robert French, the Honourable Mary Gaudron, the Honourable Michael McHugh, the Honourable Michael Kirby, the Honourable Ian Callinan, the Honourable Susan Crennan, the Honourable Virginia Bell, and the Honourable Geoffrey Nettle; the Chief Justices of Tasmania, the Northern Territory, Victoria, Western Australia, New South Wales and the Australian Capital Territory; and the Solicitors‑General for the Commonwealth, New South Wales and Tasmania.

Also present at this morning’s proceedings are the Honourable Mark Dreyfus, the Attorney‑General for the Commonwealth; members of Sir Gerard’s family, some of whom are seated at the Bar Table; the Honourable Paul Keating, a former Prime Minister; the Chief Justice of the Federal Court of Australia; the Chief Justices of South Australia and Queensland; the Chief Justice of the Federal Circuit and Family Court; the President of the New South Wales Court of Appeal; the Shadow Attorney‑General; former Justices of this Court, the Honourable William Gummow and the Honourable Kenneth Hayne; 15 former associates of Sir Gerard; the Solicitors‑General of the Australian Capital Territory, Western Australia, South Australia, the Northern Territory, Victoria and Queensland; the President of the Australian Bar Association; the Presidents or representatives of the Bar Associations of Queensland, Victoria, New South Wales, Western Australia, the Australian Capital Territory and the Northern Territory; the President of the Law Council of Australia, and the President of the Australian Capital Territory Law Society.

Sir Gerard was born on 22 May 1928 in Rockhampton.  He was educated at the Range Convent and High School and the Christian Brothers College in Rockhampton, and later Downlands College in Toowoomba.  His father, Frank Brennan, was the Supreme Court judge resident in Rockhampton.  Sir Gerard described his father as a “person who had a profound understanding of human nature and a passion . . . for the dignity of people.”  The same might be said of Sir Gerard.

Sir Gerard explained in 2007 when he was interviewed for the oral history project, conducted by the Australian National University in partnership with the National Library of Australia, that from his earliest days he wanted to be a lawyer, and described himself as having a feverish ambition to become a barrister.  He commenced studies in a combined degree of law and arts in 1946 at the University of Queensland, where Bill Gibbs, as he was known to the students (later to become Sir Harry Gibbs) taught him evidence.  He was President of the National Union of Australian University Students.  It was his engagement in student politics which resulted in his meeting his future wife, Patricia O’Hara, one of the few women studying medicine, and with whom he would have seven children, 21 grandchildren and 23 great‑grandchildren.  Lady Brennan died in 2019.

Following his graduation, and after a short period as his father’s associate, Sir Gerard became the associate to Justice Townley of the Supreme Court of Queensland.  It was in that position that he had the memorable experience of working with the judge who had been commissioned to preside over a military court established under the War Crimes Act 1945 (Cth) on the so‑called “Manus Island war crimes trial”, proceedings which, in later life, he would recall as “quite disturbing” and as fortifying his opposition to the death penalty.

Sir Gerard was admitted as a barrister in 1951.  His early practice consisted of crime and what he called “nisi prius” work, before embarking on major civil litigation, mostly in the area of torts law.  A notable appearance was for the Fijian sugar farmers’ Alliance Party in Lord Denning’s arbitration concerning the Fiji sugar industry.  The farmers sought a better deal from the Australian‑owned Colonial Sugar Refining Company, which owned the local mills.  The farmers were so successful in the arbitration that CSR sold its interests to the Fijian government.  Perhaps on the strength of Sir Gerard’s advocacy for the farmers, he was offered the office of Chief Justice of Fiji, which he declined.  He was counsel for the Northern Land Council before the Aboriginal Land Rights Royal Commission conducted by Justice Woodward.  Sir Gerard later said that this experience gave him some appreciation of the complexities of land title arising under the common law when he came to write the lead judgment in Mabo (No 2).

Sir Gerard took silk in 1965 in Queensland and was subsequently appointed Queen’s Counsel in New South Wales, the Northern Territory, Papua New Guinea and Fiji.  His High Court practice was extensive.  He first appeared as junior counsel for the appellant in Harris v Wagner, which concerned section 92 of the Constitution.  His first appearance as lead counsel was in 1962, in a matter concerning procedure.  He had his first success appearing for the appellant in Porter v Latec Finance (Qld) Pty Ltd.  Thereafter, he regularly appeared in the High Court in a diverse range of matters, including banking, defamation, contracts, damages, bankruptcy, constitutional law, criminal law, negligence, local government, restraint of trade, industrial law, companies, trademarks and mining.

Sir Gerard was an active member of the profession.  He was a member of the Executive of the Law Council of Australia from 1974 to 1976; the President of the Queensland Bar Association from 1974 to 1976 and President of the Australian Bar Association from 1975 to 1976.  He was a part‑time member of the Australian Law Reform Commission from 1975 to 1977.

Sir Gerard might properly be described as a giant of the new administrative law which emerged in the mid‑1970s.  After being appointed to the Australian Industrial Court and the Supreme Court of the Australian Capital Territory in 1976 he was made the inaugural President of the Australian Administrative Appeals Tribunal, and the first President of the Administrative Review Council, the cornerstones of this new area of law.  At Sir Gerard’s swearing‑in to this Court in 1981, the Attorney‑General, Mr Peter Durack, acknowledged that the effectiveness of the administrative reforms of the time was “due in no small way to the fact that [Sir Gerard] identified the major theoretical problems and contributed substantially to their solution”.  Sir Gerard regarded the field of administrative law as vitally concerned with the balance between the interests of the citizen and the government, which he regarded as critical to a free society.

He was one of the founding members of the new Federal Court in 1977, and became the first member of that court to be appointed to the High Court.  His ascension to the High Court in 1981 was met with universal acclaim.  The same applied to his elevation to Chief Justice.

His early years on the Court saw the final abolition of appeals to Privy Council, with the consequence that this Court became the “sole arbiter of the content of Australian common law and . . . the sole arbiter of the construction of Australian statutes”, a matter which he regarded as demanding a “mind‑shift” and the end of what he delicately described as “a period of judicial embarrassment”, a reference to the unusual situation where a litigant from a State court could appeal either to the High Court or to the Privy Council.

Sir Gerard’s judgments in so many areas of the law reveal a depth of intellect and prescience.  I am spared the difficulty of having to identify the most important or memorable of the judgments of Sir Gerard because he referred to them himself in his interview for the oral history project, with the usual caveat that each case that comes before the Court is important.  He singled out as being particularly memorable, The Tasmanian Dam Case, Waltons Stores v Maher, Street v Queensland Bar Association, Todorovic v Waller, Marion’s Case (which he described as the hardest judgment he ever wrote) and, of course, Mabo (No 2).  His judgments appear in 48 volumes of the Commonwealth Law Reports.

The qualities of the man necessarily informed his judgments.  The idea of egalitarianism infused his thinking; he said that “[p]eople are entitled to equal treatment in equal circumstances”.  He often referred to the inherent dignity of the individual, to independence and to autonomy.  He regarded “the absence of unjustified discrimination, the peaceful possession of one’s property, the benefit of natural justice, and immunity from retrospective and unreasonable operation of laws” as of critical importance.  His recourse to these fundamental values was not, as he put it, an invitation to “unstructured idiosyncrasy”; rather, he saw them as values which served to explicate and illuminate the common law, tempered by the need for the law to develop incrementally and in accordance with precedent, the judicial method and the separation of powers.  Unprincipled judicial discretion was anathema to him.  What was necessary was consistency and predictability.

As to his conception of this Court and its place in our society, I can do no better than to cite Sir Gerard himself:

I think its role is vital.  It’s vital to the rule of law in every sense, that is, in maintaining the law in a coherent and relevant state, in ensuring the independence and impartiality of the judiciary, and in applying our Constitution and the settled law of the Commonwealth in a way that gives people their assurance of continuity with the necessary amount of change to deal with changing social conditions.

He observed at the ceremonial sitting on the occasion of his retirement that:

it is for the service of the people that the courts are created and perform their functions.  The courts sit in public, think and write in private, then publish to all the world their decisions and their reasons.  No other branch of government responds so unfailingly to every application within its jurisdiction nor gives so adequate an explanation of the reasons for its decisions.  The courts must be available to serve the litigants by quelling their disputes, else raw power prevails untrammelled by the rule of law.

He later spoke of his enjoyment of life on the Court, referring to the variety of the work and the intellectual stimulation it provided.  He derived a real sense of satisfaction from producing judgments.  In the days before his death, reflecting on his 17 years at the Court with his son, Father Frank Brennan, he said, “I loved every minute of it.”

His energies were not devoted solely to the judicial task:  his extra‑curial writings and speeches were legion and continued to be so after his departure from the Court.  Sir Gerard remained active in the law after his retirement, sitting on the Hong Kong Court of Final Appeal from 2000 to 2012 and the Supreme Court of Fiji from 1999 to 2000.

His achievements were recognised by his being made a Knight Commander of the British Empire and a Companion of the Order of Australia.  He was conferred with Honorary Doctorates of Law, an Honorary Doctorate of Letters, and Honorary Doctorates of the University from a number of universities including Trinity College Dublin, the Universities of Queensland and Melbourne, the Australian National University, the University of New South Wales and the University of Technology Sydney.  He was Foundation Scientia Professor of Law of the University of New South Wales and served as Chancellor of the University of Technology Sydney from 1999 to 2005.

In addition to these accolades, Sir Gerard was held in the highest esteem by the legal profession, and he was respected by his colleagues.  He valued collegiality and enjoyed the company of and discussions with his colleagues.  Sir William Deane says of Sir Gerard that:

he was the truly ideal member of a collegiate Bench.  He was always conscious of the importance of the proper and effective functioning of our courts in the community and nation which they exist to serve.  In addition to the scope of his own intelligence, knowledge and insight, he was invariably respectful of the views of others, and extraordinarily generous in his desire and willingness to share, to communicate, to listen and to confer.

Sir Gerard was a model of judicial patience and courtesy.  His achievements and his qualities as a judge would influence many lawyers, including Queensland lawyers of my and Justice Keane’s generation.  Sir Gerard made an enduring contribution to Australian law and thus to the Australian community, its peace, order and good government.  He will be remembered as an exemplary judge.  The Court extends its sympathies to his children Frank, Madeline, Anne, Tom, Margaret, Paul and Bernadette, and to his grandchildren and great‑grandchildren.

The Court will adjourn until 9.30 am tomorrow.

AT 10.18 AM THE COURT WAS ADJOURNED