1011 i "
_. '~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 Michael Kirby 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, Henry Parkes made a stirring wisely, think, not for the momem but for thi. ';llIy.spanned11I~::~~;;~I':;h'kehwhOlethe whole history to date : (Commonwealth of Australia. 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 Melbourne 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 Sydney. 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 New South Wales. 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, Samuel Griffith, 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 George Dibbs. 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 Free Trade opposition family in Glen Innes can only be a, matter of co-respondent in a divorce suit. Pamel:.Pamel:, to George Reid. 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. HVictoria old adversary Disraeli.9 It was during thi~i lId Come, by the time of McTiernan's gave her royal assent on the 9th July 1990. administration that Gladstone warned the: ~o Command the treasury benches in The Commonwealth of Australia came into Queen "on his own responsibility" of th~~ l!lonal Parliament and in all bUllWObut twO of being on 1 January 1901. The young "growing danger of a class war",1°war".1° He:: le,r ParliamcnlS of Australia. EdWardEdward McTiernan, not 8 years old, was to contended that the evils in British society; 1i!-t ~ational Parliament was still an idea play the part in its Parliament and in the had been aggravated largely "by thel 111 1,nds of the Federalists. In 1885, an Federal Supreme Court for which thethc prolongation and intensityintcnsity of the Iris", IAct had set up thethc Federal Council Constitution provided.S5 controversy". ThisThistimetheHomeRuleBilll lime the Home Rule Billl 2 """"13.June 1913 when Joseph Cook forme~ ;l~s might have been speculation. a Government with the majority ofone. ~ Ifts~losecure Home Settled in Leichhardt, Edward Government remained in office when Wi. leg;;W~~ad, a chancre McTiernan was sent to the Christian was declared in August 1914, But within .5t./Ithas not yet been Brothers'Brotbers' School at Lewisham. Later hebe month, in a general election, the Fish 1~~tP_~.experience of attended the Marist Brothers' School at Government was returned with sweepi :Tieman, growing in Darlinghurst.Darlingburst. That school, until its recent victories. Those victories soon turned t:of Irish ,stock, and closure, boasted thetbe Edward McTiernan acrimonious disputes. W. M. Hugh Prize. When it was closed, it was became Prime Mnister, in succession amalgamated in an associated school run by Fisher. In 1915 he set upon efforts the Marist order in Canberra. It continues its persuade Australians to tbethe cause ;.~r~.~up inMetz, later association with Edward McTiernan. To it, conscription to fight in the European w: conscription to fight iin~~th~je~u~,~r~;~~i~~~! ;sirtaU)own in' the New his widow committed a number of The Roman Catholic CCoadjutor . Archbish! \W:SQuth Wales. It was memorabilia of the famous student of thetbe of Melbourne, Dr. Daniel Manni early days of the century. ls16reethousand souls addressed huge church ga[ht:ri"gsgatherings i~ S:':f'a~be[', In 1908 Edward McTiernan ·theconstable. In Edward McTiernan September 1916. He expressed "a [X~;.had originated from September 1916. He expressed"a Critici.I" matriculated from the schoolscbool at Irish perspective of conscription.conSCription. Laboi. ~ y;~Sligo Darlinghurst. He had little prospect of Ireland. They DarlinghursL He had little prospect of which had been substantially built uJXln th~, ~' followed Gladstone's entering tbethe University, despite the promise supfXlrtsuplXlrt of Irish working people, fell int( ~' ;-ecure Home Rule for he had shownsbown as a schoolscbool child. It was not bitter division. In October 1916 a nation~ ~ ~s,:'.the' ~'black blot" until 1912 that legislation provided supJXlrtsupIX>rt referendum· to permit the cDrlSc[iptionconscription c" .. 'I:;left. To escape that for children of working class families to Australian men for overseas military :'o_nse:quences most of attend tbethe Sydney University.12 At that time Australian men for overseas military servic} was narrowly defeated. Hughes and twent~ 7.lY~hadh1igrated to tberethere was also little hope that tbethe young three supporters left the LaIJOrGo,vernmeniLabor Governmenf . :[OStates of America. McTiernan would secure employment in the govemme~jJt .~~?:dY _a constable in large commercial houses of Sydney. TbeseThese They formed a new Coalition,Coalition ~:~~;'~~~i~ :~~-.employment with which proposed a second CIconscriPtiO~"I. were times of strong sectarian prejudice. which proposed a second i~~r•. - 'olice.-He migrated Commerce was largely dominated by referendum. This too was defeate9 Ir~'But December 1917 with an even large;. ~ SOOn after his Protestants who boasted of the work ethic as •• I ~ ,1la:Diamond, also an iftbeyifthey had invented it. The best hope for the majority.maJonty. ~ ~ ,McTiernan was a young Edward was the Public Service. The young McTiernan observed thesll ~ ~nwhotaught the On his fatber'sfather's suggestion, he sat the debates closely. He lined u;[~:;;'~o~~:~niup behind Manni/Jj, :f:iiJ'i"cp, school. examinations for entrance into the State and and the majority of Labor supporters i",f>! ~ti wasalaw abiding Federal Public Services. He won entrance oppositionOpposilion to conscription. Most youn{ P9ys might have sunk to both.both.· Although an officer of the State lawyers of the tin,etime "erewere Em[,ireEmpire 10:la1is[5,loyalists. It~ -:ehvithout'trace. But Police, tiis.tiis~ fatherfarher advised that he accept was a rough introduction to the world 0; !~ecentllry, an event aplXlintmentapPJintment to the Federal Service because, pOlitics for these were times of fierct / ifouhdly to affect he predicted, it was likely to grow in size and passions. With a war proceeding in whic(' ;.;, ;He 'feB off the importance. Little could Patrick McTiernan many Australians were being kiJIedL. _ whichNs family have realised the impact which his embrace of opposition to cO',SClriptionconscription war; .~§,!atherprOyided law promiSingpromising son would have upon the often presented as disloyalty to the countf':, r,it¥e.tz-towpsfolk. As decisions which would reinforce, with legal and even worse. -. It!ng McTiernan effect, his own instinctual McTiernan'SMcTiernan's graduation in Law, whi< rSe~perfectly. It prognosticationS.13 he had studied after completion of his ak~ess. ;"Constable Edward McTiernan therefore began his Degree, occurred in 1915. A1'!l!,dLmtionAt graduation there would be little long association with Federal Government was awarded First Class nUlnuu",Honours, a. ~le"ofhard physical in Australia. He was employed as a junior academic tribute to his diligence and to hi" :LThe:JalI was thus clerk by the Customs Department. They intellectualintel1ectual abilities. Graduating in the sam ~-Ch'propellep the smaIl sent him to a job at the Victoria Barracks in class was Mr. Kenneth Whistler Street, late, -ily, to, head south for Sydney. With his small wages, he enrolled tolO be Chief Justice of New South Wales. ~'~y.~tneir. borne in as an evening student in the facultyfaCUlty of Arts During his law studies, McTiernan ha -~u'rb~- of Sydney University. At the University he obtained a position as a junior clerk in th ave ,art even more came under the influence of Professor well established firm of Solicitors Sly ardMcTiernan's George Arnold Wood who taugbttaught him Russell. He had no connections wilh lh t\Varbrokeout, history. Wood was a liberal. He badhad firm. As he told it to me, he was walld pr the Australian criticised Australian involvement in the along George Street wbenwhen a large bra~: -f1is'difficulLy in "imperial" Boer War. His criticism was solicitors' plate caught his eye. He; cjency led to his accepted by the receptive McTiernan. approached tbethe firm and was ushered intc'l c:;A>military service. In 1910, tbethe Labor Party won a clear the presence of William Charles Schrodet, he verandah, he once majority at the Federal Election. For the DoubtlessDoubtiess impressed by the young man' 'ct that he \vould have second time, Andrew Fisher, the Labor excellentexcel1ent academic results, SChrcx:lerSchrcx:ler ga (h.e Somme, with so leader took office as Prime Minister of him a corner desk. McTiernan.McTiernan, began hi. 'P.. who'fouoht lhere Australia. This,time Labor had a working lifetimelifelime association withwiLh tbethe busy world 0 )~';~:~'Any one~ho has majority.mnjority, It established, for the first time, its legalleg'll Sydney. ~:>- __ schroder who secured for of the forty three Labor members of him. Sir George Fuller, the leader of the " ~as position al Allen Allen and Parliament were Catholics. One of them OppOSition, drew to the attention of I rnan n I f· "';i'-"-' even then onc o[thc aegcs! lrms. was the young McTiernan elected for the Parliament the attendance of the Attorney c~ms~fi~rsin Sydney. Norman Cowper, a constituency of the Western Suburbs. John General at a luncheon given in May 1920 to .:Of~---,;or me firm, was approached c:ne Storey became the Premier and remained so welcome Dr Mannix at tilethe Sydney Town ~f~daY by Mr. Justice RICh of the. HIgh until October 1921 when he died and was Hall. He said: fa~'>R' hwas looking for an Assocaate to replaced by James Dooley. "We know thalthat at the gathering the toast -~. ~~Id be paid the princely sum ofsix McTiernan was commissioned to be of 'The King'Killg' WllS' omilted,omuted, and that Dr Ii,! ~~, ~rwcek. Rich's,son ~ad enlisted in Attorney General. He was, at the time,time. the MQ/JJ1ix,MQJIJ1ix, who had been delil'eringdelivering speeches 11..1 .~-:~F. and had been killed 10 France. He youngest man in Australian history to in Melbourne before he came to Sydney WllS' , r; Z!:'.iltdCIt plain that he w?Uld not accept. an receive appointment as the First Law guilty of uttenumcesuUernttnces of a most disloyal I' a 15 :W·: 'jC8nt who had dcchned t? serve Ki~g Officer. Within a short time he character to the country and the Empire . .. ",I i "'5-J~country. McTiernan f1t~ed the b~ll demonstrated the measure of determination At this gathering. .. the Attorney General "I: reedy.' He was young. His academIc and persistence which had come through his WllS' amongst the speakers and he referred to I " j:oct,""'o''Its: were outstanding. He had long years as a Judge.JUdge. One of the first acts this rebel in our midst . .. Two ministers of rc"-jeered. Rich look hml. on. Fhfiart e cst was to pilot through Parliament a measure to the Crown who hal'ehave sworn allegiance to the .in 1916, Edward McTiernan e~tered secure the readmission to legal practice of King ought to hal'ehave been severely dd of the High Court ofAustralIa. In Mr. R. D. Meagher, a Sydney solicitor reprimanded by the Premier and put Olltout of Sir Samuel Griffilh was still Chief whose name had earlier been removed from the Ministry . .. "17 Sjriilftc.~, Sir Ed~und Barton, father of the roll. The legal profession was virtually According to Sir George, the :'fidel1l1io'n was stili there. Isaac Isaacs, unanimous in its opposition to Mr. venturesome Attorney General has told the Ite-nry':Bournes Higgins, Frank Gavan Meagher's restoration. Meagher was a reception: -"Odffy,- Charles powers and George. Rich prominent man on the Labor side of politics. "it would be a \'eIYl'elY difficult task for the 'made up adistinguished Court. McTIernan He was Speaker of Parliament and was also Prime Minister to carry out his threalthreat to Came to know them all. Indeed, at time of to become Lord Mayor of Sydney. The Bill deport the Archbishop. I venturelIenture to say he hisde:ath in 1900, he had known everyone passed. Meagher was to be the solicitor in is Australia's greatest citizelt He is an oClheJustices of the High COurt (and served many notable cases of interest to the Labor Australian institution.' '18 ,;'i~<: "withmost) save for Richard O'Connor who Party. He was to brief both McTiernan,McTiernan. and McTiernan stood by the controversial I, ,~:>Ji;"-':haddied'in 1912.14 He had a treasury of the young and brilliant H. V. Evau.1Evau.l6 Irish bishop whose calls for Irish ,-?,~:.'rei:ollee(ions of these formidable legal Another initiative of McTiernan's independence were probably no stronger '~~I~jJ.>,,::spirilS. Most ofthem were happy memories. involved the healing of a wound which had than those made earlier by Gladstone. They '~t; ';", Effortl~ly McTiernan would talk of them resulted from the incarceration of twelve were a severe irritant to the conservative ;.;:"r~~ ~:::~his later years, as if they still walked the members of the organisation International political forces in AustmliaAustmIia at that time. Yet .'A~/:.Cl'(ridors on the way to the court room ofthe Workers of the World (IW\V). They had McTiernan stood true to his beliefs and 10to his i: _~~::, High Court. For McTiernan, they were still been charged during the War with origins. ::5t;::1lIi\,c,their strong personalities vividly conspiracy. McTiernan established a Royal In March 1922 at a general election in :'.•~Il~"lS<1Js.P'~:Is. He never made~ade a secretsec~e~ of such misuse of market power was mixed with legal causes. The Hansard Record shows ':2:-f"opj:ai~uon.opj:il;ition. At~t the timetlme the opinionopmlOn of a anger and disappointment of returned men him speaking on many issues of concern to fledgling barrister would not have counted coming back to economic difficulties in civil liberties. He opposed enlargement of ,;'f .' fqr much. Roman Catholics predominated Australia after the eodend of the War. The criminal summary proceedings and ..•.-._...~...•..'.•~.:;.._.~...•..:•...••..•.....•••••..••• fk.. d..glln.&.•.oornster would not have counted . :~"~~ :::inlhe LCague. Their opposition to the Profiteering Court was never very reduction oftheavailability of jury trial. He .~ ~~1s compulsory conscription for successful. In this time of market spokespJke for the abolition of the death penalty. •... f?r com.pulsory conscription for ""P' .,0. ,erseas imperiallmpeCial war service were economics, it seems an odd idea. In the He opposedoppJsed the sectarian measures pressed i i -',."fj ... n:inrorctdn:mrorced as the news came in from Ireland context of the Australian love affair with forward to provide a new crime of '1:(; of thelhe. savagesav~ge Suppression of the Easter compulsory industrial conciliation and impugning a lawful marriage. This crime ! c~:' Re~llionRe~lllOl1 .', inIn Dublin,DUblin, in 1916, which the arbitration, it was not so strange to was a Protestant response to the Papal ne :1, ,~~1:' BruooBru~ rcgardedas a wicked stab in the back Australians of 1920. McTiernan also temereLemere decree. This had declared that no , ;~~f, lit a timelime of peril. established the Land and Valuation Court mcuriage,mcmiage, including one between a Catholic /5-,': McTiernan d . ,~:i" J;~eTiernan,. ,unng during his service with Mr. and secured the passing of the Fair RentsAct and non-Catholic,non-Catholic. was valid in the eyes of , ii, J{s:~w~~:JustlCC Rich had been~en calleden.lIed to the New to protect the returned servicemen.servicemen. the Church unless conducted in the presence ~ ~OUIh Wales Bar. His admission was moved . b' Bar. Hlsadmlssianwasmoved As Attorney General McTiernan was of a C11holicC1tholic priest. For Protestants and i ,I: ':ti~ 'C~1YGeorge Flannery K.C., in whose often required to confront the sectarian secularist this was too much. McTiernan ::I"Fra:~~~h.1mb::rs he SubsequentlysUbscq.uently took his place. bitterness of the time. His well known described the Bill to create a new crime as ';\~ t~oml~~c tl, In r· stan, McTiernan s..1W5..1W an openingopcnin o associmion with Dr. Mannix, by now "pure unadulterated communisrn".19 As ~ j ::.::.:."~nrPOn~II~.or~ IIICS. Though only twenty eight yearsyear~ CatholicCaLholic Archbishop of Melbourne, brought Professor Buckley had suggested, notxxly ':.~_ S -ge.~lr,'ICSICXldfo he Slcx:d for election Thomas Bavin replaced Lang as Premier.Premier. 29 days compared with 71 days in 1929 4.11~.11r .o(~tlirough a number of Lang was not toto return toto Government until 45 in 1928. The number ofdays on whl ;!~ :~;ofsOcial reform. They October 1930. McTiernan returned toto full the Full Court sal to hear cases was 11 ' fat' ,widOWS' pensions timetime practice as a barrister. As a tributetribute tDto smaller inin thethe Imelt',olasttwo ,,,arsyears t'iIa"",,than in 1>'27dlll,j1927a' 1;':;, ',t,J3~.tperhaps the most his earlier academic success, thethe University 1928.""1928 "26 ' liY s_th~; passage of the of Sydney invitedinvited him toto be Challis Lecturer SoS~ therethere was littlelittle pressure nf,wnd"n'ofwork to J' !f;~ ers\,compensation in in Roman Law. the two vacancies. Their importance to r (j~ -:theJ..ang Government McTiernan's period of Parliamentary program of a Labor Government was t 1~ t:,the duration of service was not yet over. His life as a perceived by the cautious Scullin. ' l- i~ ~y. it was seen as barr.isterbarrister did not fullyfUlly consume him; nor In December 1930, the Prime Minis' tute" Later reformists were his poJiticalpolitical interests yet finally slaked. and the Attorney General, F. "",nnan,Brennan, Wf~ Lthgit..the original AFederal election of October 1929 provided absent in London. McTiernan's time Ii 'bad.;inspired the 1926 him with an opPJrtunity to enter the Federal come. The Labor caucus in Canber :UJ.e",asjt settled into its Parliament. E. G. Theodore was lOOkinglooking for resolved toappointtwoJusticestoto appoint twoJustices to the vad a good safe middle class candidate to offer seats. There was a strong lobby for Dr H. ci'\oi government, in the Labor cause for the Sydney seat of Evatt K.C.. He was young. But f ced,a ,Bill for the Parkes. This stable middle class electorate intellectual credentials appeari lhishment. Although around Croydon in Sydney's western impeccable. He had appeared in numerd _'Bouse it did not secure suburbs, attracted McTiernan. A campaign leading cases in the High,High ,CourL 1:1 :':';CO~~cil. Even more was mounted for him by the first group of scholarly work and unive";ityuniversity distim:ticdistincti, ;i:Jr~J}overnment was Labor lawyers: friends and colleaguescol1eagues of his. not to say his allegiance to me'the UlDCH'atLabor Pa iCilof the moves ofthe Most were Catholic lawyers who supported made him an obvioll'iobvious choice. lhe_,;Upper House. a moderately reformist Labor Party with the But within the Caucus, a group :hls,':efforts to achieve kinds of policies which McTiernan members would not agree to Evat ~~,rnor, Sir Dudley de advocated. appointment unless it were balanced by Attorney General McTiernan won the seat of Parkes more temperate McTiernan. Ultimatel: ,I~~)-lis mission was to handsomely. It was a seat which was to two vacancies being available, the decisicJ 'tibthorities to convince boast many famous members. Les LaylenLay len was made. Scullin received a telegra~' y_ty-toac.eept the advice was later to hold it. Later still, Tom Hughes Desp:::rately, by wire, he sought to diss :erS;' "McTiernan found won it for the Coalition parties supported by his colleagues from the appointments.ah~~;~;n~:~~~,u~lklB:! ith,~J~ip.dle ofserious a group of lawyers who campaigned for him, they went before the FederalF Executi~: p,~.:uIl1ecOuld be found as McTiernan'sfriends had done thirty years Council and were duly made. There wi lfa:Government in state earlier. nothing anyone could do about it, save 10., 11;cTiernan took the McTiernan'sMcTiernan'S period as Member for constitutional removal. Herbert V. Ev; luntySligo to see the Parkes was short and inconspicuoll'i. The K.C, at 36 became the youngest man e' Irk ;Qn his return to Hansard shows him in occasional clashes elevated to the High Court. The HonouraHono,urali I<:hes,<;~d~,~ in the way with 1. G.latham, member for Kooyong, the Edward Aloysius McTiernan, 38, w; ita'in could do. He leading King's Counsel from Melbourne apPJintedappointed as from the following day, 2 l(aiv~;I~;;:~~~:t::His,words of praise who was soon to be his colleague in the High December 1930. It was McTiernan wrJ ~pvernment scarcelyof Court. But it was McTiernan's colleaguesCOlleagues bore the brunt of the professional criticislj the~bor newspapers. in the Caucus of the Laborlabor Party who were which broke out on the announcementanno'mc:errlent oft~ol't~F~ t:in;,the- social scale soon to translate him from Parliament to the two appointments.appOintments. The thrust of t~ :It1ational experiences. "least dangerous branch" of the Federal criticism was that McTiernan lacked IrqI ,movedwith his family government. distinction to deserve office in the country~co,m":Y1,11I lHaberfield. Now in highest court and that his only appareij ,in"and •a barrister THE HIGH COURT claim to the office was faithful service tolO thl -(Stantial career ahead of The Labour Party inin Government was leadlead Labor Parry.Party. Bar Associations and La'i ~~thfield;,'He was only by John Scullin. He was an extremely Societies around thethe country shunned hit:' ,Warrawee in the leafy cautious man, more concerned thanthan his and Evatt. Typical was thetheSo"tt,South AustraliaJAustraliajl~ ydney,where he lived opponents were about thethe slightestSlightest charge of Law Society. ItIt voiced itsits opinionopinIOn th,' '~on the High Court. making political appointments. The JusticesJll'itices should not be apPJintedapPJinled forfor the., er,!-l,.,McTiernan resignationresignation of Mr. JusticeJll'itice Powers inin July political opinions but only forfor outstandin\outst'lndin ali 'c:ourt in a case 1929 fromfrom thethe I-UghI-Ugh Court leftJeft a vacancy legallegal reputation.reputation. As ifif inin anger for thl effort to raise taxes unfilled at thethe electionejection which brought thethe apPJintment,appointment, thethe Labor Party lostlost thethe seat c n.ncwspapers. The Scullin Government toto office. InIn March Parkes at thethe by-elecHon toto fillfill thethe vacancvat:an,:!lj declaring it to be an 1930; Sir Adrian Knox, thethe Chief Justice, leftleft by McTiernan's retirement. successful move to resigned affording thethe New Labour Much of thethe criticism ventured agai ,tionof Parliament, 1. Government thethe rarerare opp:munity toto appoint McTiernan was bascdbased upon lhethe factfact that h ;;':-~~This, was the least New South Wales against a decision of the "No cosecase in whkhwhich 0a certific01ecertificaLe W ~I ;cpJaIifications. Other Supreme Court of that State concerning Mr. ~~,":,;;;;:.elllbiesrefused resembles the present cosecase in 'r:!~, ir',!:fayden Starke) anp Lang's latest effort to abolish the Legislative importance. '~lsh), Qad never before Council.1B1S Evatt could not participate Having reached the conclusion thatthaL til '~~1 trncm.'received that because he had earlier been briefed in the present case not only justifies, bU:!~' ~'~(e'.is Dq .doubt that the proceedings. The majority of the High imperalively calls for, a decision from 'idtnan,·asensitive man. Court (Justices Rich Starke and Dixon) highest legal tribunal in the Empire, it is 111. ;;, rf,s,:~\1i~h: fuelled the affirmed the Supreme Court. Chief Justice duty to say so. "34 ':l~i ~lishJphef;njoyed with Duffy and McTiernan dissented. McTiernan was a more consiste :jl~, manor h~mble origins, McTiernan's judgment is a closely reasoned centralist and Australian nationalist. He walh&l1 IU{fby:-t~e opprobrium piece, assertive of the p::lwers of the New alsoalsodefensiveofrhedefensive of th~ ker position ~f t~e Hij' .t'.;)~. ::'b1"the close knit, South Wales Parliament, in succession to the Court of AustrahaAustralia In determmmg th i::,' Itp£ci~esslonwith whom he Parliament at Westminster: ·allocation'allocation of pow~rs. 11' tb\speqdhis life. Still a "The gravity Of the issues of law to be "It (the High Court) is the tribunatribuna!I';' ""'t~ureandwith only asmall decided is emphasised by briefly noting the specially created by the united will of th,j ids 'his retreat into the consequences which will flow from the Australian people, as a Federal COllrt an ~i:y',:,r~inforced the success or failure ofthis appeal. "29 as a naJionalnalional Court. It has very spec: 'er~worIdliness which An appeal to the Privy Council affirmed funcrionsfunctions in relation to the powers, rig. biSlime,in pOlitics. the High Court majority.3D and obligations springing from th r:Uignints and their Much more controversial, however, was Constitution . .. Since the foundation ofth~' :eqin La!;xJr politiCS, the stand McTiernan took in the State Court, a certificate has been granted in am "¢ath()lic, McTiernan Garnishee Case. The case concerned the caseon/ycase only...... i~-eabli' so. He filled _ validity of the Financial Agreements It is . .:. : necessary thatthal [maUty[mality in tht: s' associations in the EllforcemeJllEnforcement Act 1932 (Cth). That Act, determination ofthe question ofthe validit), ,~rpOi~tment,to the High passed in the diffiCUltdifficult economic and political oftheAct shouldnot bedelayedbygranlin. };Ii~?:tak~n ..~n active part circumstances of the time by the Lyons a certificate . .. >§:d[1gres~ held in Sydney Government, was said by J. T. Lang's The application should be refused".35 .,- "IIty and devotion to Government to strip New South Wales ofthe The decision, so vital to the financialfin"nc.iaI;11 "sovereign" power to appropriate, control rqf;d,Judges in difficult cases have chOiceS.!FJ! jfSydney;:.Faithfully, functions and to deprive the State of the Nowhere more open ended are those choices k~ J~ges pr'federal and power to discharge its functions, including than in constitutional cases where brie ·~~X's q~t.QedraI. He its exclusive functions. These were the words of great generality must be ;::,:Jo.unders' of the St issues as seen by Evatt.:n words of great generality must be given ;\On,one ·.occasion he On this occasion, Evatt could participate, meaning. To the Labor supporters who had McTiernan on the High Court, bers'bn.. the 1926 and he did. Chief Justice Duffy agreed with put McTiernan on the High Court, his· to come to the same C0I1Ch>sicln :~~crpf.which he Evatt's view. They proposed that the .inability to come to the same conclusion as I the O1iefJustice and Evatt seemed puzzling. \ _:,'C" <' 'ii' Federal legislation be declared __.:¥CTi~rqan arrived, unconstitutional. The same majority lined To McTiernan, it was part of the judicial ~PjXl~qt~~;: i,n an equal up against that view proposing that the office and of the independence of judges rsy, to -be the first Federal legislation be held valid. This time, under the law. Who knows to what extent oGtTvernoL.General. McTiernan, instead of providing the the slights of 1930 played a part, even :P~J'}~va~t;:~ould be equaliser which would have afforded the unconscious, in his determination to :,~Jothe central seat of Chief Justice the vital casting vote, aligned demonstrate quickly the independence of the qy,)~lieve(Uhat Evatt his opinion with the majority.32maj"ority.32 On 21 April politicians who, allegedly alone, put him in ~~~.5timuI~ting Chief 1932, with Justices Rich, Starke and Dixon, his place on the High Court? WhoWbo knows to :~,*Gavan Duffy, who McTiernan upheld the Federal Act as a valid what extent his desire to distance himself ,puLnoW DUffy, Evatt exercise of the legislative powers of the from Evatt, in a very public way, influenced, :!p~d a core ',of opinion Federal Parliament.Parliamenr.33 even unconsciously, his approach to the ~'9romised .fair to the In later proceedings, consistent with the issues of the State Garnishee Case? In a ' \:::p9.Wer-a.od to the respect for the Australian solution for such sense, that approach was wholly consistent ,ipnor'clisputes of constitutional questions, McTiernan joinedjOined with an approach McTiernan was to adopt in i~)fm9n. ,and~ women in all of the Justices save Evatt in refusingrefUSing a the long years that followed. Consistently, 1,l!,rlYi.:.?8ses,,in which certificatecenific,He under S.745.74 of the Constitution to he lendedtended to favour an expansive view of the ,~·,.quite-frequentJY in permit New South Wales to takelake the closely powers of the Federal Parliament. nd Evatt, divided judgment to the Privy Council. For According to Professor Sawer,5awcr, the reaction of_ to the', Court an Evatt the~he case warrantcdwarranted such an exceptional in L1bor circles was 8a deep sense of tor-ney general for ccrtificntc:certificnte: disnppointmentdisappointment that their appointee had 'I' complaint. When Starke refused to sit on War, the bold moves of the Chifley ) some of the circuits of the High Court, Government were contested. By now often ~30;s, McTiernan joined in, Latham had to depend heavily upon Dixon in dissent, McTiernan consistently'consistently :ioos with Evatt; but more and McTiernan to ensure that the published supPJrted the wide view of the powers of 'j , j'Ie' admired Dixon, whilst sittingSitting schedule of the Court was Federal Parliament. 45 The greatest of these 1i "iilitprase ob5Cur,e. When maintained. Only on Doeone recorded occasion test cases came in the Banking Case.46Case.46 I,: llaeed, by Latham 10 October did McTiernan raise an objection and then Latham and McTiernan alone supported the ~! r~'nthe long and vital interval in deferential terms.42 constitutional validity of the nationalisation . rcQurtwhichsaw AllStralia out Immediately before and during the measure upholding the Federal power. How:.How i In::through the Second War Second World War, Justices of the High ironical it is today to see the successors in ~! bUsy times of post war Court took on extra-judicial responsibility. Government to the Chifley Administration ~ i Lathan as Minister to Japan; Dixon as in the forefront of the moves to "privatise" \: aVailable reveals what an Minister to WashingtonWaShington and later Kashmir. banking - even to the point of selling shares .~I ';il1e:'):righ Court was during McTiernan was also asked by Evatt (who by in the Commonwealth Bank in the centenary';centenary 'u:~~~~~:]:;:[iliibbles were legion. There this time had resigned his seat on the Court year of the Labor Party which established it. : I nl ~ 'resentment, particularlylegion. There on and was Federal Attorney General) to McTiernan's opposition to communism :;! liJ.(the way in which, as behe conduct an inquiry into the alleged was undoubted. But he aligned himselfhimselfwith with ~; ad been forced ()Ifoff tbethe bench falsification of records in connection with the majority in striking down the Communist iI ~ati~n which included one aircraft procluction.production.43 The outcome of his Party Dissolution Act 1950 (Cth), the .~I· reSent court".37 inquiry is unknown as it was subject to war political centre piece of the restored Menzies II :essDr, Latham, inherited a time censorship. Govemment.Government.47 Latham alone held out in I) instant vexation which Mr. Followingthe War, over oppositionopPJsition ofR. supPJrtsupp:>rt of Federal power. The referendum ':1 particular, inflicted on the G. Menzies, Evatt moved to increase the which follo~edfollo\\'ed this notable decision saw ~'l to travelling expenses.3S bench of the High Court to restore the Evatt in his finest hour: defending the'the i dal crisis which pressed number of Justices to seven. Their number constitution as a charterofa free and tolerant ; i -'dudng the early period of had been reduced in 1933 £0to six as an people livingliVing in a community which q :rVice, allowances were cut economy measure. With new numbers, accepted a high measure of diversity of I: I atiolished. Rich complained Labor scarcely took the opportunityopPJrtunity to stack opinion. Perhaps the older McTiernan saw ;! :cTieman had consented to the court with its supporterssupPJrters - or even with in the legislation against communists - 11 t·tJecause, as fonner State mildly radical lawyers..lawyers., The Government disadvantaging them for their allegiance and ',I enjoyed "gold passes" for appointedapPJinted Sir William Webb, Chief Justice opinions not for their actions - reflections of ~-I h survived the abolition of of Queensland to tbethe Court. Webb had no earlier laws and altitud~attitudes a~instagainst Catholics 11 5es.39 The most difficult politicalPJIitical association with the Labor Party. and other vulnerable mmontles.minorities. \ :o,~(t, Starke, never accepted He turned out, like Dudley Williams also Sectarianism did not entirely die in the 1i It:of Evatt and McTiernan. appointed from the Supreme Court of New 1920's. It showed its unhappy face with the ;i ';'s'recounted a tale from that South Wales to replace Evatt,Evan, to be split of the AustralianAllStralian Labor Party and the i,l 1eman repeated. Starke, cooservativeaodconservative and highly traditionalist. With creation oftneofthe AntiwCommunist Labor Party .'1 ~anand his tipstaff in the Duffy and Evatt gone, McTiernan was left and later the Democratic Labor Party in the ,I ,ug~ Court would greet the as the only Justice with a philosophical 1950sand19505 and 1960s. Remnants of it can still be ~I ,ignoring entirely the judge. inclination to the causes dear to the Labor seen in the AustralianAllStralian political debates. The .:1 Cippears consistent with the Party. As the scalegrams of academic worst of it appears behind us. But!But :Qus·evidence of Starke's observers confirm, McTiernan was with a NfcTiernan'MCTiernan brought up to feel it keenly, did l :bam' after the latter was very high measure of consistency~ usuaUyusually not entirely escape sectarian attitudes as I ;: I hier Justice. His usual favourable to the advance of Federal power.power. shall show. " .Evatt and McTiernan was Through his decisions, McTiernan emerges ~ He charged them with on what may be calledcalled. the "left" scale of the HONOURS AND RETIREMENT :1 Ig~'the opinions of Dixon judges who served with him. His deCisionsdecisions In 1948 Mr. JusticeJllStice McTiernan, 56 married :\ ;I~.e·. of the Court Starke were the least "pro employer" in industrial Kathleen Lloyd. By every account she is a ~: (:', . accident compensation cases. They were formidable lady. One Associate even said : 1 'co,nvmcedthatEvatt pays no the most'most "pro 'pro accused" in criminal appeals. that she could have concluded the Second .: i fa~ts and is merely a palTot. They were the least "pro laissez faire" in World War if General Eisenhower had not ~~ :lY,detrimelltal to the High cases under S.92ofthe constitution. Next to been available. Perhaps the diffident and !I "eJ?endence that whenever a Mr. Justice Windeyer, his decisions were the courtly McTiernan felt the need for such a ;, 7:Jfopinion is disclosed the least "pro defendant" in road accident daily influence in his life. That life had been ,! -I,s,reaches (sic) the same cases. Yet in applications to review left empty in 1945 when his father, Patrick, ~i 'on. "40 government decisions by the constitutional had died. Before PalrickPatrick McTiernan's .1 that Dixon was aware of prerogative writs, his jUdgments were the death, the HlghHigh Court judge was in constant ::! tptind it "disagreeable". most sympathetic to government and least communication with him. He was a dutifUldutiful :,; ~ this interpretation: supportive of the applicant challenging the SOn. j; ;:Diton) agood deal for he benevolent state.44 Upon the return of the Menzies II :llppOrt andshepherds them McTiernan was not always in dissent. Government in 1951 McTiernan was Ii 'a~e,as he thinks fit". 41 During the years oftbeofthc Second World War offered a knighthocd by Mr. Menzies. The ~'i ~~!e and himselfcapable of the High Court, doubtless reflecting the peril Order offered was oflheof the BritishBritiSh Empire. In :! 1Q' 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 Daryl Dawson 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 High Court of Australia, 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. . -Robert Menzies. McTIcrnanMcTiernan J. had concurred with Dixon J. Se( Wal~ ibid,464. _ Text on which was based an address to 2.'i.2.'). J. M. Bennett, "Keystolle 0/of tiletIle Federal , 1-·: the St Thomas More Society, Sydney 23 July Arch -All Historical Memoiro/tlieMemoir ofthe High Court 49. (1990) 64 AU 320. 1991,1991. Personal views. 0/of Australia (0to 1980'~ AGPS, Canberra, 1980, 50. ConstitutionConstitutioll AlteratiOIlAlteratiOJl (Retiremellt(Retiremelll 0, -.-, L R. McMullin, "The Light 011 the Hill: 17le 51.5L Judges) 1977 (Qh). Amending s 72 of the AustraliallAustralian Labar Party 1891-1991", OUP, 26. Ibid. Evatt was appOintedappointed on 19th Constitution. Melbourne, 1991. December 1990. McTiernan was appointed on 5!. (1990) 168 CLR L 2. F~feraIF~feral Council of Australasia Act 1885 20th December 1930. The difference of a day 52. C.c. M. H. Qark, A History of Australia, rankled. See (1930) 44 CLR i. Melbourne Uni Press, Melbourne 1987, Vol 6 " : . 1867 (Imp.). In 27. Bennett, above n 2.'i,2.'), 53. 496. 1981 th,sstatutcthis statute was renamed The Constitution 28. AttomeyAllomey General for New South Wales andalld 53. Ibid,500.54. Ad 1867. Others -1'- Trethowall mId Others(1931) 44 CLR . 4. CommO/lwealth of Australia COllstilUtioliCO/1stitution 394. The saga continues to this time. See See e.g. remarks (1919) 26 CLR xi. I At/19oo1900 (Imp.)(Imp.; Bignold -v- Dickson and Drs (1991) 22 NSWLR 55. See e.g. D. Marr, Barwick, George Allen & 5. Ibid,s71. forthcoming. Urwin, Sydney 1980, 214; M. Coper. ~ See E. Magnus, Gladstolle,Gladstone, John MurrayMurray, 29. Tre1howan,Trethowan, ibid, 433. EncOUlllersEllcOIllllers witllwith the AustralianAustraliall Constitution,COllstitution, London, 1963, 357. ' 30. See(1932)47CLR97. CCH, Sydney, 1987,124.1987, 124. 7.7•. Ibid,358.Ibid, 358. 31. New SouthSoutll Wales -I'~-1'- 17le CommOllwealthCommonwealth 56. Lord Campbell,Campbel1, TileThe Lives of the LorG 8.8; ld,364.Id,364. [No. 2J2[ (1932) 46 CLR 235, 240240.. Cllmlcellors,Chmlcellors, 2nd Ed, John Murray, London. .·9;9.lc1,399. Icl,399. 32. New SouthSoutll Wales -v~-1'- The Commonwealth 1856, 519. See general1ygenerally S. Burbury, "Si, 10.1O,'Id,·lQS. /d,'lOS. [No. 1/11 (1932) 46 CLR 155. Thomas More and the Rule of Law", Uni Tas, ~:.;Iany11. Many of the details on Sir Edward 33. Ibid, 227. 1980,3. McTiem:m's~ leman's life herchere recorded were told 10to the 34. Ibid, 242 Cf McTiernan's deference to 57. J. T.Ludeke, "ThomasMore", unpublished ~I::"'filer o~on the occasion of Sir EdwardEdward's '5 90th English HouseofLordsauthorityas lateas 19431943. . address to the St Thomas More Society,Socicty, birlhday.. ~. E~ inIn FcbruaryFebruary 1982. See M. D. KirbyKirby, See Piro -v--1'- W: FoslerFoster & CompallYCompally Ltd (1943) Newcastle, 1985,3. _}{"SirEdwardAlo}'sius . wardA~o}'silis McTiel"/lQ/~McTiel"llQ/~ 1982 -1990 18 CLR 313, 336. These were not unusual j! -1990 58. LecLoc cit.. -ParliamCllIaritl11, (lrlramcil/arrtlli alldOIui Judge ,." (1990) 64 AU sentiments for the time.lIme. See also GriffithGriffilh CJ's I: nutho 59. See e.g. Federal CommissionerCommissiOller ofofTaxatioll Taxation i; 320.tQ th' The authorrgrategratefUlly rully acknowledoesacknowledges access remarks (1919) 26 CLR vi. _1'_ CasllarillaCasuarina Pty Ltd (1971) 127 CLR 62, 84--8684-86 , I Mc"-IQ I~Ce IOTlhcomingfOTlhcoming b·biographylograp hy of Sir0 Edward 35. Id, 243 ffff. . , and discussion in Federal Commissioner OJ ; Mc1u,::rnanUwr'O.uernanhyK by.'K. BuBuckley, c kl ey,tobepublishcdbytheto be published by the 36. G. Sawer Australian Federalism in the I Uw, IIf-ounU:l1ion unUahon of Nr..'wNl.·w South WalesWales. Courts, The Melbourne Uni Press, Melbourne, Taxatioll -v· GullalldGulland (1985) 160 CLR 55 at 86. 1"" ursa E . : I. l It.., SBursary ry EIlr!owmclltudo\\'l1/em Act 1912 (NSW)(NSW). 1967,67. 60. W. i3. Yates "Under BellBeJi Bulbell"Bulben" in U. 1,~.cee S ~I'_ . O'Connor, "The Yates Compmlioll", Pavillion, Cornma}11I'1;1.Sce e.g.'f; SoutllO~I(IJ Australia ~I'- The 37. I-I. V. Evatt to J. G. Latham, 12 October Commall"wcaltli, ca t I (Ulliform(Uniform Tax Case), (1942) 65 1939, cited C. Lloyd, "Not Pe?ccPC?CC but a Sword! 1990,216.
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