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_. '~i·,o.-'-:7~O·'~~'~'~·~~~~~::~~j U---.-~~r~I~M-:' -I-, -SIR EDWARD McTIERNAN - A CENTENARY REFLECTION ·'. SIR EDWARD McTIERNAN --A A CENTENARY REFLECTION The HOllJustice A.c. C.M.G. * 'rHEWORLDWORLD OF 1892 Concern about the defence of the had introduced a Home Rule Bill for Ireland'Ireland­ 'bvev,:nllfulyealf"," e\icntful year, a century has passedpa~ed Australasian colonies was also beginning to He declared that Britain's treatment 0\: Hie birth of Edward AloysiusAloySIUS agitate Whitehall. With the Canadian Ireland was a "broad and black blot" UpOi',upm, ,rna'll on 16 February 1892 at Glen Constitution behind them,3 the Imperial its record: :;~; ,New~evi SClulhlSouth W:,le,Wales. .. The second oflwQOflWO politicians were in a mood to look more "Ireland stands at your bar, expectam.expectam_ --·:':en of Patrick McTiernan, police sympathetically upon proposals for an hopefUl, almost suppliLutt.suppliLutt . .. She asks ,]:,r hIe/.andand Isabella McTiernanMcTiernan, (nee Australian Federation, if only the colonists blessed oblivion of the past, and in lha~:tha~: "Ild) carriecame tnilOinto a world on the brmkbrink of could agree amongst themselves. oblivion Ollr interest is deeper than.than eJlenher.j;evenher.J; political and legal changes. His life 0024On 24 October 1889, at Teoterfield,Tenterfield, New . .. Think, I beseech you, think wel~ thinj,~ South Wales, made a stirring wisely, think, not for the momem but for thi. ';llIy.spanned11I~::~~;;~I':;h'kehwhOlethe whole history to date : (Commonwealth of . It saw speechspeeCh in which he called for the years that are to come, before you reject thd Wvi~rs. great scientific and social replacement of the Federal Council with a bil/"6bill"6 j. . s and the apogee and fall of the strong national Parliament having full But reject it they did. It was thrown od;; EOlpire. Instructive it is to reflect control over all matters concerning of the House of Commons by 343 votes tC;'t(' -Ilie world he entered and the Australasia as a whole. In the result, in 313. The Queen was asked to dissolvi: ro,'o,,:le,~versies which were agitating February 1890, a meeting in of Parliament immediately. The electiok ;8 and the mother country at a time the leaders of the Australian colonies, campaign which followed was fought witt" :dward was born. together with two representatives from New unequalled bitterness. The Conservativ(ConselVativ( c" ..:ar" "Crn".before his birth, an event was to Zealand, discussed Parkes' proposals. They leader, Lord Salisbury, who had suggestec'l piilce: which affected the courseCOurse of his agreed to call a convention in the following that some' people - "hottentots anc~ In 1890, provision was first made for year. This convention met in March 1891 in hindoos" - were incapable of sel:,: >3ymenl of members of Parliament . It was the first Australian Federal government, was pressed on the entitlemen'lentitlemen'{ ':d, at the next general election in the Convention. It comprised 46 delegates from of the Irish to different treatment,7treatment.7 But thllthli :of . With this all Colonia1Colonial Parliaments in Australasia. It final results of the election gave 31e·31e­ ,m,ent, in January 1890, the Trades met in the Chamber of the Legislative Conservatives and 78 Liberal Unionists ~~.~!_ ;bor Council decided to field Council of New South Wales, the oldest huge majority over 191 Gladstonia~: ,tes for the election. Plans were made elected body of the colonies. The first draft Liberals and 85 Irish Nationalists. Rura'~Rura-~ :Labor Electoral Leagues in every of an Australian Federal Constitution was England had voted against Irish reform:( 'l;lency. The first such League was agreed. The principal draftsman was Gladstone reSigned,resigned, to the profound relief of, ip, Balmain in March 1891. 1 In July, , the Queensland Premier. the Queen. She urged him not to encourag~,'encourag~,­ 'enlier, Henry Parkes went to the He did most to shape the draft which the the Irish to expect that they would ever hav(have',; ,.;;In its first election, the Leagues High Court yet to be created, was to expound HomeHorne Rule as that was "now impossible" .t­ M48,eal':948 seats... They won 35. TheytbenThey then and in which he, and later McTiernan, were Im~ssible is a word that should rarel) balance of power between the Free to serve. be written in history. rs; led by Parkes, and the Parkes' loss of office in 1891 in New Ireland's travails in Britain continueQI; taoists, led by . The South Wales appeared to set back the into the 1890's. Gladstone's hope~ Government resigned on 19th Federal cause. How much of this news depended upon the Liberal Irish al1iance.alliance. Ir;'Ir;· ',1891.1891. DibbsbecamePremier. The reached Constable McTiernan and his 1890 Charles Stewart Parnell was cited a~.\a~_\ ip of the opposition family in Glen Innes can only be a, matter of co-respondent in a divorce suit. Pamel:.Pamel:, to . In January 1892, the speculation. Parkes was replaced by declined to resign. In the circumstances 0:,'0:,­ Annual General Conference of the Edmond Barton as the new "leader" of the the time this was a mortal blow to the frienru; ,ElectoralE~~:~~~::~::T~~:~~:~~~~eUPhonaLeagues met in the euphoria Federal Movement. In August 1894, of the cause of Irish Home Rule in Britain~: ~(Pecnt electoral triumph. The Leagues George Reid, now Premier, of New South Parnell married his lover in June 1891. H

j' Vrered on by colleagues lower in apfX1intmcntapfX1intment of Justices FullagarFUllagar and IGtto.Kitto. Conversations could be called to mind,' rvfcTicrnan begged to query But McTiernan had few interests outside the Characteristics and even the clothing and' the l1.n~,'.. ' offer. The reply indicated the law.Jaw. Perhaps he saw no one more suitable appearance of the historical figures of that ~fC~I~S number of MeMG'sMeMO's available: to take his place. Perhaps nobody suggested lime.time. More recent events were less readily. llln~ roviocdrO"I'ocd nO such difficulty. So that he should resign. Perhaps by 1972 he recalled. On his 90th birthday, TI visited him.; J(Brl'.'SICB",'' PanPan accepted. 11usThis,' faithful son of was more truly dcvoteddevoted to a judiciary above I recorded his words as soon as I had returnedlretumedl Me Tlcrn b S". 49 ; ; . I d and of the Church becameecame Slrif politiCS to render unthinkable the thought of from his presence. Later publishedpub1ished , the: lre and After him it i>:cameb:came a normal resignation for the advantage of the Labor record is a remarkable story of service tOltal Edwar . . f ., '0'd t of the office of the Justlces a the Party. Perhaps he expected the Whitlam Australia over an unprecedented perioo: inCl cn ]' . ~~i1Hi!!.i1 ~ourtCourt during CoalitionCoo luan go~eromentsgo~eromems to Government to hold office longer than it did. through times of dramatic change. tcte 'Of[c:rcd,om:rcd, [lnd to accept, ap'p~:)Jntmcn.tap'p~:)Jnlmcn.t as a Perhaps he was taken by surprise when the In one way McTiernan, the, Kni(lhtKnillh! of the Order of tbe Enllsh EmpIre. It Whitlam Government lost office. Whatever constitutional refonner,rcfonner, cOOlributedcontributed more, '"ncd"ncd so durino thetbe Fraser Government, the reason, he was still there when the Fraser than he knew to a reform of the Australian; rcmm ~. f Sir bemg the last aof the administration came to power.power.. Constitution passed at referendum. It was. i Justices so honoured. Indeed, McTiernan would probably occasionally his lot to assume the office of In 1963 Sir Edward was sworn,sworn. of the have been there until his death but for an Acting Chief Justice. Being the senior·senior' "~rivy',y Council. He thus became ent1tl~~entItled to accident which occurred in the Windsor puisne judge of the Court, he was obliged to! (.n Council. He thus !XcaHmc. H bl"!? the honorific of "the Rlg~t. onoura ~ . Hotel in Melbourne in 1976. He fenfell trying step in for Dixon and Barwick when they He sal in the Privy Council Inm 1973, takmg tostamp on a cricket (some say a COCkroaCh).cockroach). were unavailable. On one occasion he did·did' a JongjoumcyJOl1gjoumcy ara,uod3ra.uod the \\:orl,d,,:orl.d which U:dy He broke his hip. The mending took a long this to swear in new members in the Senate McTiernan orgamsed. He Insistedlnslsted on bemg time. When he was ultimately mobileagain, Chamber. The MembersofParJiament,Members ofParliament, who, (lccompanicd,ilccompanicd, even into the first class cabin Chief Justice Barwick declined to alter the rarely saw the Justices of the High Court in·in' oflhe pl,lnC,p1ilne, by his Associate. Reluctantly, accommodation of the High Court to those itinetant days, were uniformly! lhe Federal authorities agreed. The Appeal provide for a judge in a wheelchair. It wouJdwould shocked at McTiernan's great age and Cases [orfor 1973 record one appeal in which cost too much. And although "Gar" and apparent feebleness. It was the sight of the: he sat in Ihethe Judicial Committee. It was an "Edward" had enjoyed a good personal octogenarian which encouraged the.the, :: appeal from Hong Kong. Lord Wilberforce relationship, the Chief doubtless sensing an bipartisan support for the amendment of the: presided. The advice of lhei~thei~ Lor~ships was opportunity to fill the post with someone constitution providing for the compulsory. niven(liven by Lord Pearson. In It, relJ8ncerel18nce was younger and closer to his own world view, retirememretirement of Federal Judges ..50 It was one' had on a decision of the Privy Council in eventually persuaded McTiernan to retire. of t~e few proposals to change the, which lheirtheir Lordship's preferred a West The retirement was gazetted on 12 constitution approved by the people.: Indian decision to one of the High Court of September 1976. It closed the longest term Henceforth there would be no more life,life AuslraliaAustralia in which McTiernan had joined.4S of office served by an Australian judge -46 appointments. McTiernan generally kept his .Associate, years. It surpassed the tenn of 36 years McTiernan died on 9 January 1990. He, or law clerk, for a year or eighteen months. served by Justice William Douglas of the was just short of his 98th birthday. At a.a, The qualifications for that office were Supreme Court of the United States of Sitting of the High Court On 5 February 1990 simple. The candidate needed to be Roman America. OJiefJusticeQ1iefJustice Mason, in a brief tribute, noted Calholic,Catholic, male, of Irish descent and One consequence of the long service was his long sclVice: , preferably with an interest in Labor politics. the fact that, in his age, Sir Edward was frail. "SirEdward had a profound knowledge; McTiernan had severed his personal links His hands trembJedtrembled in company with his and appreciation of the law and literature, a with L100rLll.XX politicians. But he kept a keen voice. Yet his mind remained fairly cJearclear to knowledge and appreciationappreCiation that· eye on po1ilicalpolitical developments. He liked to the end. On the bench he could be distracted. contributed to the clarity of thought and \ discuss them with his Associate. On most The fine quavering voice would often be expression which were the hallmarks of his, days it was his practice to eat in his chambers difficult for counsel to understand. Chief judgments. Viewed in their totality, they with his Associate. They would together Justice Barwick would not allow counsel to exhibit a remarkable consistency of thought consume the meal which Lady McTiernan ignore McTiernan. "You have not an decision over such a long period of: had prepared for them. Having no children answered my brother McTiernan's judicial service. Sir Edward's unfailing: of his own, the parade of AssOCiatesAssociates became question" he would often say. He was not kindness and courtesy were appreciated by p:m of M~Tiernan'sM~Ticrnan's family. Traditionally, devoid of humour. Nor should his all who appeared before him and sat with .' an Asso::1111eAsso::l11te would eat at home with the gentleness be misunderstood. His him. Sir Edward made a great contribution· MeTiernansMcTiernans at least once a week at the larcrelarue Associates tell of how he could burst into to the public life of this country in law and i holi<;eOOli'ie in :Varrawee adjoining convenient~, energetic eOlhusiasmemhusiasm and become animated. politics.' '51 a ~a.lhohc chapel.Chilpcl. He was devout in his But it was generally over history or lXllitics, Remarkably, his judgments begin at the: relIgIOUSreligIOUS devotions: attending Mass on the not the law. 44th volume of the CommonweaJthCommonwealth Law ; Silbb.lth and On the feastfcast days. At his home in Warrawce, McTiernan Reports. They end in volume 137. It i ~{.any~{,any expected Sir Edward McTiernan would receive friends and visitors -~ most of remains for a full biography to be written, 10to rcure upan the election of the Whitlam them having those qualities which he found analysing those judgments. It will be ~ Government in 1972. Throuohout those congenial andaod by which he invariably surprising if. they do nOlnot bear out what· Ion" )'CafSl'cafS [d"[d' ", 0 .::r.:> , 0a IssentlssenL and JUdgments ever selected his Associates. They would sit scalegrams and judicial impressions suggest i hncfer,hnefer, it was frequently said amongst law there in a large bright room under a is the "remarkabJe"remarkable consistency" of the i students th:!tth:tt "Edd·"Edd' .." ;:> Ie was keepincrkcepinu a scat substantialsubstamial but conventional portrait of world view of this venerable judge. w·lnnfiw'lnnf! h 0 ' ortart encxtL1oorGovcrnmcOlenexLL1borGovcrnmcnl out of McTiernan. L1dy McTiernan would keep IllYilhyuYilliy 1t h·h' .." ' Me .._. 0 IS onglOS.angms. So it hadhnd been whcnwhen any children at bay. Sir Edward would IN 11 IE FOOTSTEPS OF MORE H f1Z1esflZlCS returnedretUrned to office. Within wecksweeks reflect On times long ago. His memory was Why should we be concerned with thcthe lifelife: ay~cn T~~~en Sl~rkcStarke andtlnd GeorgeGcoroe Rich reSigned.rcsioned that of an old man. He had instant and Th Clrres·· ;:, ;:>. of Sir Edward McTiernan? This countrycounLry . IT reslgn

,,0'" ~:?:-' rsonalities of the other side of the perhaps reasons why observers note that he fertilisation. Both Moreand McTiernan sav }~Im Ih~lh~r p:: mOStO5t gifted sons and daughtersda~ghters was not "a dominant force" in the Court.555S the law challenged in a time of radica ,.-:,WOfId. Itsoften m ~r\'ed~ alienI gods and 19nore:dignore:d He should have had sufficient insight to change. Each in his way had to reslXlnd tl >b3'Jc.~CO [noblenoble citizens closer to home.52 perceive that the time had come for the challenges. ,. me-lIVCS 0 ,.' ccording to Munning Clark, thet~ present retirement, to make way for fresh blood Both were educated in the manner ofthl 'F''''''''~V'''",('ct, -'. . n hash's a chance 10to be wiserwIser than required to invigorate a vital branch of common law. Both worked under and witl _Dl'.ncrnIlO ' 2;~ •. US generationsenerarions were. It can scesee an end government. For a man who succeeded so intellectualleadersintellectual leaders of the legal profession eVlO . h .. d ·. '.'preVIamedominationofthe g "stralg·h" teners an d handsomely in his own youth, he betrayed More was profoundly affected by hi: - 10 portunity for the "enlargers"enlargcrsoflife" of life " to little thought for the more youthfulyouthfUl aspirants exposure to Erasmus. If no Erasmus entere~ IheDptheap S3 have their chance.- . who conceived themselves to be worthy of McTiernan's early world, he certainl~ · I have found the p:rsonahtyp:fsonahty ?f similar chances in life. mixed, by happy chance, from the beginninl McTieman of interest for ~hmgs I share~ 10 For all that, he displayed in his life many with the large figures of Australian law.Jaw. on with him. HIS was an InshIrIsh endearing graces. Sir Thomas More, Both More and McTiernan were eleele,electe' .com monm h .. flh baCkground, and althoug mmerome l~ a0 e canonisedcanoniscd in 1935, was for him an exemplar. members of the People's House 0a - pCQlestantPCOlestant tradition, me c1u~c1U~ t~ th~ lSSues .of More's life was told in the Lives of the Parliament. More became the Speaker 0' Ireland is the essential slmtlan.tyslmtlan,ty of ItS Chancellors by Lord Campbell who said of the House of Commons. McTiernan took i se?1rated people. He was a man I?terestedl?terested him: seat in both the State and Federa in thelhC world seen through the pnsm of a , 'With'Wilh all my Protestant zeal I must feel Parliaments. Both were knighted. Bot~ moral perspective. He had a concern for the a higher reverence for Sir Thomas More were sworn of the Privy Council. BoLtBoll dis:idvantagcd.dis:idvantaged. He was sensitive to the than for Thomas Cromwell or Cranmer . .. became Judges in their country's highes. isSuesiSSues facing ordinary working men and I am indeed reluctant to take leave of Sir court, continuing to exercise judicial powe womcn.woCnen. He wuswas loyal to their causes. That Thomas More, not Oilly from his agreeable in the great ~radition of the laws of England remarkable consistency was played Out year qualities and etcraordinaryetci'aordinary merit, blllbllt from Both badhad about them a simplicity aneaoc aftcrafter year, and, where necessary, in my abhorrence of the mean, sordid, modesty of personal demeanour whict , dissentioIJdissentiou jUdgments. In McTiernan'SMcTiernan's time unprincipled chancellors who succeeded aUractedattracted respect and admiration. 57 Forboth itwas m~edifficult to dissent than it is now. him . .. "56 family life, d~votion to a small circle and ineascendancy of analytical jurisprudence Happily McTiernan's successors have specifically, respect for their fathers was ar made the path of the reformer and dissenter, not merited such opprobrium. It has fallen important element on their personal road ({l{ ·. like McTiernan, p..'linful and difficult. Yet to this Protestant revieWerreviewer to write twice of humility. More, when Chancellor, woulcwoule he pressed on, true to his own colours. He this most Catholic judgejUdge with a proper begin his day kneeling at the feet of hi: was not unconscious of his own measure of respect. McTiernan never faced father, Sir Thomas More, when still sittin~ resp:msibilities and the honour of serving as the mighty challenge that cost More his life. on the King's Bench as the Senior Judge·JUdge'S:5: aajudge judge in his country's highest court. He He will not join the company of the saints. McTiernan's devotion to his father endure(endurec remained ever courteous and fundamentally No stained glass windows will memoriaIisememOrialise to the latter's end. Even to his 90th year, h(he humble. Doubtless these personal attributes him. Certainly, he lived to see the ultimate could recall the happy days at Hillgrove if were daily renewed by the sure knowledge ascendancy of Catholic Australians with the family home of that country constable. tMtIMtthere there was above him a power greater members of his once disadvantaged church Like More, McTiernan was stubborn, .than any mOrtal power. in the highest offices of state. Tooay six of Atle.;'lstAtle.:'lst in his early years, he would not tak(tak, McTiernan was no saint. He had a the seven JusticesJUStices of the High Court of the easy path of concurrence. He held au reputation for personal meanness. This was Australia were baptised Catholics - a truly for his own views though they were ofterafter .'- i" doubtless the product of the relatively remarkable turnabout from the days of unorthodox. The middle decades of hu. humble circumstances of his early years. He endangered religion faced by More and to a service were times of remarkable uniformit) f certainly stayed far 100 long on the Court. lesser extent McTiernan himself. The old of thought in the High CourlofAustralia. Tc Every office holder must keep in mind the days of minority disadvantage were wholly swim against that tide slXlke of high mora need to make way for young people of gone. Now there was a need for those who conviction and thethe' "indomitable'indomitable lrishry"Irishry" 0; honourable ambition who follow behind.54 had overcome that disadvantage to perceive which the lXlet Yeats wrOte. Some tim( By the 1960's, McTiernan's enthusiasm and the contemporary disadvantages of others. before the , th{the energy had noticeably waned. Even the McTiernan, as a child of the 19th Century, House of Lords in England embracec number of dissenting judgments fell. The never took that leap of the mind. McTiernan'SMcTiernan's opinion, that the simple word~ sfClIsrell of Dixon was by then trulytrUly up:m him. Yet there arc paraJlelsparallels with the life of the ofofincome income tax Iegislationsoouldlegislationsoould receive theil !he energy required to contribute an sainted Chancellor which should be noticed plain meaning. 59 He struck down ta).ta" Intellectually WOrthy and alternative before this laletale is cla5ed.clCX5ed. avoidance schemes in a way which Wa! perspectiveperspeCtive to the Hioh Court was not Like More, McTiernan lived in a time of regarded with condescending bemusemen'bemusemen· uSU~l1r there. To ~odern eyes, his great change, of dangerous wars and of at the time. With hindsight, we can see tha: restnctlonrtStnclion of his circle of friends and his ,~. moral ferment. More had to face the many of his opinions on Federal lXlwer 'ppo' bbl"l",mtmcm mtmem of AssOCiatesAssociates to people of a like challenge to his Church presented by Luther, criminal law and tax avoidance were simpl) ..- . ackground, views and relioion seem the Reformationand the English Protestants. ahead of their time. Perhaps in aamaH mOH ~o3cCeptablyunaceeptably narrow and disc~iminatory. H In McTiemnn's world, the Church in his supportive and congenial workin§ . uman beings,be'lOgS, includinglOcludlng,.. Juduesjudcres arc Improved b'by ac . ., , own lifetime came under unprecedented cnvironment,environment, the light of his intellect mightmigh\ d'"'N' Yacquamtancequamtance with people ofaora challenge. It was always an anchor for his hnvchnve shone more brightly than it did. dhlcrcmhlerem backg d . tI k roun and expcnenceexpenence It existence. For More thcthe great technologicaltcchnological More'sMarc's sudden end, for the urgenturgeOl !~,cs~!~,CS~ largelnrge spirit to escape the bonds orcl(lncl,m changcchange of the printing press revolutionised insistence of conscience,conscicnce, contrasts witt. "'1i1iti1ItICS and the ,. m'·,. . . cOm,OrtmCOmlOrtm IJn rcassumnccreassumncc of the spread of ideas in a way tl1mthm altered thcthe McTicrnnn'sMcTiernnn's long sc!Vicc.sclVice. Euch of these mlXmn Wtlh 1. on~scl[0 "[ 1090 Wtth peoplepeop e likclike onescl[ Doin"Doinll so old civilisntionscivilisntionsJore\-'er. forcver. McTiernan lived to lawyers hns lessons for their o:ovno:.vn countrycoumry hCcPSlod' 1ps to dc,t '., chiklh eSlroys roy stercotypesstereotypes built on see thcLhe age ofofnuclenr nuclcnr fissil1n, interplanetary and bcyond.beyond. MarcMore tC(lcllcstenclles succecdingsuccccding nodood preconceptions. These arcare travcl,travel, theLhe microchip and inill vilro generations the ultimateultimatc obligationobligntion oj _ The High Court under J. G. Latham" (1987 conscience and duty to the CLR 373; Victoria -1'- The CommOllwealth :'tb:ual conscience and duty to the (Second Uniform Tax Case), (1957) 99 CLR 11 Adelaide L Rev 175, 181. ing law atove even thet~e mighty power 575. See also Victoria -v~-v- TheTile CommollwealthCommo/1wealth 38. Lloyd, 180. ihe state. ForFar Australians, McTiernanMcTlernan alld Haydell (Australian A..o:;sistanceAo:;sistnnce Plan Case) 39. Jbid_Ibid. ).,;,..,,,t13,,,ith;..vslhat with luck, ability and opportunity (1975) 134 CLRcLR 338. 40. H. E. StarkeStnrke 10to J. G. Latham, 22 Februar p:?rooytoy frOOl a country mining town can 14. See (1912) 15 CLR i. 1937 and 2 December 1938 quoted Lloyd, 181 15. Noted (1990) 168 CLR i. ;clothethe highest offices of the State and 15. Noted (1990) 168 CLR i. 41. Ibid. Lener of2 December 1938. 16. See Legal Practitiollers'Practitioners' (Amendment)(Amendmem) Act lion; 42. E. A McTiernan 10to J. G. Latham abou As lawyers, we can celebrate the life of 1920 (NSW). See also IlicorporatedIncorporated Law , ' ~I'- 1937/8, quoted Lloyd, 180. McTiernan whose IllstituteInstitute ofNew South Wales -I'-Meagher(1909) j 'Edward Aloysius McTiernan whose 43. Noted Buckley above n 11. Th,Th' i: a~co~panied 9 CLR 655. centenary approaches, He accompanied ?urour 17. New South Wales ParliamentaryParliamemory Debates appointment is found in Australian Archives A· c,;;J1~10ni\vcalth _; ... : commonwealth through Itsits fIrstfirst testmgtesting (Legislatil'eAssembly) 10 October 1920, 123. In 32 SP 109/3. . -

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