Sir

A paper presented to the Selden Society, Brisbane on 17 March 2016 by D.F. Jackson AM, QC1

Introduction I thank the Selden Society for inviting me to deliver this paper in relation to the life of Sir Harry Gibbs, who was born on 7 February 1917 and died on 25 June 2005. I had the privilege to be his Associate in 1963 and 1964 when he was a of the Supreme Court of , I appeared before him after that on a number of occasions when he was a Judge of that Court, and on many occasions I appeared before courts of which he was a member in the High Court, sometimes in cases which were acutely political. After his retirement we kept in contact and I was pleased that he sent a message asking me to visit him in hospital a few days before his death. He was then a very sick man. We both knew he was dying. And we uttered the trivialities and banalities so common on such occasions.

Other material May I mention first some of the places where other material concerning him is to be found. The fullest is a biography of Sir Harry by Joan Priest, Without Fear or Favour. It was published in 1995 sponsored by the Law Graduates Association. It contains an Appendix by the Hon Peter Connolly CBE, QC a former Judge of the Supreme Court of Queensland, dealing with Sir Harry’s time on the High Court, and thereafter.

In 2003 the Supreme Court Library published Queensland on the High Court, edited by Michael White QC and Adam Rahemtula . It contained the proceedings of a Conference on the theme “Queensland’s Contribution to the High Court”. The Hon Justice Glen Williams, then of the Court of Appeal, presented the paper on Gibbs. I presented the Commentary to his paper. For the purposes of this Paper I have plagiarised his paper, shamelessly, as I told him I would, and I also repeat some parts of my Commentary.

There is material in the Oxford Companion to the High Court of (2001) in the entries Gibbs, Harry Talbot which Joan Priest and I contributed and Gibbs Court by Professor Anne Twomey. Some of what I will say repeats comments which I wrote in the Obituary in 2005 in 79 Australian Law Journal.

Early days Harry Talbot Gibbs was the son of Harry Victor Foote Gibbs, a prominent solicitor in Ipswich. And of Flora McDonald Talbot Woods.

1 This paper was originally delivered in part as a PowerPoint presentation. I thank our daughter Louise Jackson, herself in practice as a in , for her assistance with the PowerPoint images. Two of Sir Harry’s daughters, Margaret and Mary – mentioned below in the text – are researching the Gibbs family history. I thank them for their assistance with some of the photographs used.

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May I say two things about names. First to the family the “a” in Talbot is long. Secondly Sir Harry Gibbs, from a young age, was known to his friends as “Bill”.

Despite the fact that his father was then in practice as a solicitor in Ipswich, Bill Gibbs was born in Sydney. He was born on 7 February 1917 at 99 Gordon Street, Paddington.

The birth certificate records the witnesses to the birth as “Dr Windeyer” and “Sister Cook”. I checked on the lineage of Dr Windeyer2 with Bill Windeyer, a retired Supreme Court Judge and the son of Sir the former High Court justice, and he confirmed that there was a family relationship. It is an interesting historical vignette that that one member of the

2 Dr John Cadell Windeyer, obstetrician and first Professor of that discipline at Sydney University.

2 High Court had been delivered by a relative of another. But Australia was a much smaller place in 1917.

Although he had been born in Sydney Bill Gibbs was brought up in Ipswich. Children do tend to grow up. And up.

3 He attended Ipswich Grammar School and then the University of Queensland.

In this photograph from his Ipswich Grammar days he is in the back row sixth from the right. Also at Ipswich Grammar was Douglas Campbell – “DM” as we later called him – to distinguish him from Walter Campbell (“WB”). D.M. became a Supreme Court Judge. His son is Douglas Campbell, a silk at the Queensland Bar.

4 “D.M.” and Bill Gibbs later took silk at the same time, as the newspaper of 8 February 1957 records.

5 Queensland University As I have said he attended the University of Queensland. He was inaugural president of the Law Students’ Society and vice‐president of his college, Emmanuel.

He is seventh from the right in the second row.

He also was elected President of the Students Union. The other candidate was R.S. Hopkins.

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7 Dick Hopkins became a distinguished engineer. He frequently gave expert evidence. He was a relative, or relative by marriage, of the Hanger family.

Gibbs graduated in Arts in 1937 with first class honours

8 and in Law (1939), again with first class honours.

9 Life at Queensland University, however, was not all unmitigated work and merit. He was a participant in the rather shabby episode reported in Semper Floreat, that journal of record, of 30 September 1937 under the heading “Women’s Club Ravaged”.

The basis for the intrusion into the Women’s Club appeared to be the fact that the words defining qualification for membership of the Women’s Club did not specify that members had to be women. No doubt influenced by that experience, he said in his judgment in the High Court in Wacal Developments Pty Ltd v. Realty Developments Pty Ltd (1978) 140 CLR 503 at 507, forty one years later, that where a term is defined it:

“is given … a special meaning which must be applied whether or not it accords with the ordinary meaning.”

10 These days, of course, the incursion into the Women’s Club would probably be unnecessary. Reliance could simply be placed on the Sex Discrimination Act. But I suspect he would not have found that course quite as attractive.

There was also the occasion in July 1938 when the Brisbane Telegraph carried the headline Students Stranded in Bay.

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It was said that the engine of the vessel had failed and that the students had had to spend a cold night together at Bishop Island near the mouth of the Brisbane River.

The students, as is apparent from the photograph, appear to have survived the ordeal in remarkably good spirits. And it may be noted that the engine of the vessel restarted, apparently without trouble, on the arrival of the Water Police launch.

Call to the Bar Sir Harry and Tom Matthews were the first graduates of that University’s Law School to graduate with first class honours. They were thus entitled to admission to the Queensland Bar in 1939 without payment of fees, although they had to establish that entitlement before the Full Court. The report of those proceedings is In re Matthews; In re Gibbs (1939) QWN 32. Their admission to the Bar was on 30 May 1939 but the initial period of practice could only be brief. World War 2 was but months away.

World War 2 He was an early enlistee – on 2 December 1939 – and remained in military service for the six years of the War, being discharged in December 1945. On his initial enlistment he was given the rank of Staff Sergeant. Fortunately the Army took the view that he was suited for higher things and he was commissioned six months after enlistment. He served in Australia.

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and in New Guinea,

13 received promotions to Major, and was Mentioned in Despatches. After completing his military service in December 1945 he resumed practice at the Queensland Bar.

May I devote a moment to an event in his military service. It concerns the “Battle of Brisbane” – riots and fighting in November 1942 between Australian and United States troops outside the American PX on the corner of Adelaide and Creek Streets. Much was censored about it at the time; much has been written about it since. What I am about to say comes from Peter Thompson and Robert Macklin’s 2000 work “The Battle of Brisbane”.

The authors note that there was a brief lull in the rioting as the wounded Australians were carried away and that the lull gave a Major Cummins, Assistant Adjutant‐General of the Queensland Line of Communication Area, an opportunity to take command outside the PX. Cummins summoned a group of helmeted pickets to disperse the mob. They were armed with .303 rifles, but the rifles were not loaded. The authors go on:

“The use of a shot gun on Australian troops had enraged the rioters and they urged the pickets to join them. One policeman said that a majority of the pickets, who had been hastily drawn from signals personnel, had ‘doubled back, mingled with the rabble, passed their rifles over to anyone who would take them and changed their helmets for hats or went bareheaded after secreting their steel helmets’. He heard rioters urge the pickets; ‘Shoot the bastards, or give us your guns and we’ll use them.”

There was, of course, an Army Court of Inquiry after the event. The fact that a policeman’s recollection of events might differ from that of others was brought home early to Sir Harry. The book continues:

“At the subsequent Army Court of Inquiry, Captain L.W. Barnes, the senior Australian provost present when the fighting broke out, explained that he had ordered ‘five or six’ MPs to remove their armbands and move into the crowd ‘to see if they could influence them to keep quiet’, even though Captain H.T. Gibbs, the Queensland Area Deputy Assistant Adjutant‐ General, claimed to have seen possibly 20 MPs thus undressed.”

I am sure that Captain Gibbs gave his evidence to the Court of Inquiry in what the old judges used to call “a frank and manly fashion”. I suspect, however, that Captain Barnes’ account was preferred.

Back to the Bar Then, in 1945, the war was over. And so back to the Bar. But not this time as a 22 year old, but rather six years older and as a man with responsibilities. The responsibilities arose because on 17 November 1944 at the Presbyterian Church in Ann Street, Brisbane he and Muriel Dunn were married.

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He was 27, she was 25. Muriel was herself a lawyer. She came from Maryborough, from the well‐ known Dunn newspaper family.

It was a marriage of two immensely compatible people. They were – to use an Australianism – “mates”, close “mates”, and remained so throughout their joint lives.

I said earlier that children, and families, grow. And grow. As you can see from these pictures:

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16 There were four children of the marriage, Barbara – a film producer, Margaret – a psychologist and co‐founder of the polling company ANOP, Mary – a teacher librarian and Harry – now Deputy Director of General Medicine at the Alfred Hospital in and Associate Professor of Medicine at .

I should mention one final thing about the War, before turning to his practice at the Bar in the post War period. In 1944 he had assisted in planning unified post‐war government for the then territories of Papua and New Guinea. No doubt this played a part in obtaining in 1946 the degree of Master of Laws from the University of Queensland, his thesis paper being The Laws of the Territory of New Guinea – Their Constitutional and Basic Content.

He practised at the Queensland Bar until 1961, taking silk on 7 February 1957. His practice developed rapidly and he acquired a formidable reputation extending beyond Queensland, particularly in appellate, constitutional and opinion work. He appeared in the High Court on many occasions.

This is, I think, a wonderful photograph capturing the extent to which Sir Harry enjoyed life at the Bar. But it captures also the essence of the Bar. Around you is the law as it has developed so far – statutes, law reports, textbooks, articles. But in front of you is the problem of the day. And “the day” is different from the day on which the decisions of the past were given. Some of what lies behind those decisions is enduring. Some, however, is not and many of the earlier decisions relied on were cases where the court in question had arrived at the “right” result in the particular case, but without a very clear identification of the legal principle underlying the result.

One of Sir Harry Gibbs’ great skills, both as counsel and jurist, was to identify principle behind instance. This was so whether it be as to matters of legal practice, or as to substantive law.

His last case as counsel was Whitehouse v. Queensland (1961) 104 CLR 621 in the Privy Council. That was one of two cases, the other being Dennis Hotels Pty Ltd v. (also 104 CLR 621) in which

17 challenges to the liquor licensing fees then charged by Queensland and Victoria had failed in the High Court. The challenges were on the basis that the charges were duties of excise which could not be levied by States because of s. 90 of the Constitution. Gibbs had appeared for Queensland in the High Court.3

The unsuccessful hoteliers’ appeal to the Privy Council was met by the States’ reliance, successfully, on the contention that the case raised a question of the powers of the Commonwealth and the States inter se, that a certificate was thus required from the High Court under s. 74 of the Constitution, and that none had been obtained.4

At the time of the hearing of Whitehouse in the Privy Council, Gibbs knew that his life at the Bar was about to come to an end.

Mr Justice Gibbs He had enjoyed life at the Bar, but the bench beckoned and he was appointed to the Supreme Court of Queensland from 8 June 1961, at the age of 44.

3 Whitehouse v. Queensland (1960) 104 CLR 609. 4 The broad reasoning underlying Dennis Hotels and Whitehouse has not survived: see Ha v. New South Wales (1997) 189 CLR 465.

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19 He can be seen in the Supreme Court’s ceremonial robes, including full‐bottomed wig, in the following photograph:

He was the first of those who had been undergraduates at the University of Queensland Law School to be appointed to the Supreme Court, and the Solicitor‐General noted at his swearing‐in that “his appointment has been greeted with unanimous assent. He has been one of the most outstanding counsel and in particular one of the most eminent lawyers of his generation”.

At the time of appointment to the Supreme Court, he had been a part time lecturer at Queensland University in commercial law, evidence and legal interpretation and had been a member of the Board of the Faculty of Law from 1954. He had also been a member of the Board from 1951.

The structure of the courts at the time of his appointment was then quite different:

(a) There was no Court of Appeal in Queensland – it would come many years later – and the judges sat on the Full Court/Court of Criminal Appeal in fairly strict rotation.

(b) The Family Court and Federal Court had not been established. The Supreme Courts were invested with and exercised almost all federal jurisdiction.

(c) In a day the work of the Chamber Judge – the Judge appointed to deal with short, or urgent, matters – might extend to dealing with three or four undefended divorces, making people bankrupt or discharging them from bankruptcy, winding up or

20 reconstructing companies, disposing of disputes as to custody of or access to children, construing wills or contracts, dealing with applications for injunctions, resolving interlocutory disputes in pending litigation, and perhaps finishing off the day with an application for bail.

What was noticeable was Sir Harry’s facility in each area. Whether presiding over a criminal trial, or in the Court of Criminal Appeal or the Full Court, or on circuit, or hearing civil litigation, or as the Chamber Judge, his ability to master the law and the facts rapidly was obvious; so too with procedural issues and with rulings on evidence. His fairness was manifest, and his broad experience stood him in good stead for his subsequent appointment to the High Court.

There was a collateral benefit from the presence on the bench of a young, very able and very articulate judge. Some of the other judges – perhaps a trifle “weary” – found the competitive urge rekindled. Also not all the Judges of those days could be described as workaholics and one or two found it good to have a very hardworking young judge to whose broad shoulders some of their own work might be moved.

I became Sir Harry’s Associate in early 1963. I was the third to hold that office. The first was a retired naval officer, Captain Rhodes, always known as “Dusty”. Dusty was a distinguished looking man of some bearing,

as can be seen from this photograph taken in 1950 when he was Official Secretary to the Governor Lt Gen Sir John Lavarack. It was taken at the dedication of the Memorial Gates at Marist College, Ashgrove.

21 Dusty was there for the remainder of 1961, no doubt to show the new and much younger Judge “the ropes”. Quite a few ex‐service personnel served as Associates in those days. He was succeeded in 1962 by Glen Williams (mentioned above) later a leading silk, Judge and member of the Queensland Court of Appeal. I followed Glen in 1963 and 1964. I hope that I do not in any way offend Glen by saying so but I do not think that either he or I could match the strong jaw, firm gaze and understated elegance of the old sea‐dog.

Judges’ associates, of course, are young and impressionable and tend to regard the judges to whom they are Associates through rose‐tinted glasses, but to this impressionable young man it seemed clear that he was a judge of outstanding ability. That is a long time ago; since then I have seen many judges in many courts in this country, and in some others. My youthful view has not been changed. It has been reinforced. And I know that Glen Williams holds a similar view.

The inquiries While a judge of the Supreme Court he was appointed to conduct two inquiries. The first in 1963 was as Chairman of the Inquiry into the Australian Sugar Industry, the second in October 1963 ‐ April 1964 was as Royal Commissioner inquiring into the enforcement of laws in relation to the National Hotel at Brisbane. The former inquiry recommended expansion of the sugar industry, a recommendation which was well received at the time. The conduct of the National Hotel Inquiry, however, was later criticised as too legalistic and not sufficiently investigative. The issue is discussed in Joan Priest’s 1995 work Sir Harry Gibbs: Without Fear or Favour at pp 43‐51. Here is a photograph of the Inquiry leaving the National after an inspection of the Hotel.

22 On the right is Mr Justice Gibbs, to his left Lindsay Byth, Counsel Assisting and later Chairman of the District Court. Doug McGill QC, counsel for the National Hotel is next. Doug McGill was a good friend of Gibbs. He was sadly killed in a motor accident not so long after these events. His son John is a member of the District Court. Bringing up the rear is Walter Campbell QC, later Judge, and Chief Justice and Governor of Queensland. His son Wallace is at the Bar. I am the person apparently unconcerned about the effect of the rays of the sun.

I had been appointed Secretary to the Commission but I am inclined to agree with criticisms made of it. Having participated in and conducted a number of private and public inquiries since then, I think the lack of results reflected the times, the somewhat inadequate resources of the Inquiry and a significant imbalance in legal representation.

The move to Sydney Notwithstanding the dramas of the National Hotel inquiry, for the several years following it, Gibbs consolidated his position as a judge of the Supreme Court and by general agreement, was the outstanding Judge. But 1967 brought about a dramatic change in his life and in the life of his family. He was appointed a judge of the Federal Court of Bankruptcy and a judge of the Supreme Court of the Australian Capital Territory, and he and his family moved to Sydney. This is a photograph after his swearing in in the ACT.

To adopt this course seemed surprising. The office of Federal Judge in Bankruptcy seemed hardly the most glittering of judicial prizes, and much of the work of the ACT Supreme Court was of a District Court level.

23 My view is that there were two factors of particular significance in the decision. One was a carrot from the Commonwealth. It was proposing a new federal court, the Commonwealth Superior Court, and it would need a young, vital, Chief Justice. For a short interim period, say six months, the intended Chief Justice would be the Federal Judge in Bankruptcy to replace the deceased Mr Justice Clyne, with jurisdiction in bankruptcy to go to the new court.

A proposal of such a nature was likely to have fallen on fertile ground with Sir Harry, because of what I suspect was the other factor, namely the appointment in the previous year of Mr Justice Mack as Chief Justice of Queensland to replace Sir Alan Mansfield. I am not suggesting personal animosity; I do not think there was any on either side. But the appointment was generally seen as a step backward. It seemed to indicate that not much stock was to be placed on ability or on the generally accepted views as to appropriate judicial temperament. Or on diligence.

However the proposal for a Commonwealth Superior Court died a political death and so, for a time, limbo, if not purgatory.

The High Court Justice But salvation emerged in a short time. He was appointed to the High Court in 1970. This appointment was not entirely unexpected. It was to succeed Sir , who resigned to become Chancellor of New England University. It was said there had been tension between Kitto and Sir , who had become Chief Justice in 1964. Whether this was right or wrong I am not able to say, but I do know that on the occasions when I saw Sir Frank on the bench, his temper matched his stature, which was short. The High Court became a calmer place with Sir Harry’s appointment. At his swearing‐in the Commonwealth Attorney General (Hon T.E.F. Hughes, Q.C.) paid tribute to his distinguished and broadly based practice, to his wide ranging judicial experience and to the fact that his appointment had been received with acclaim.

24 This is the High Court of that time. From left to right Walsh J., Windeyer J., McTiernan J., Barwick C.J., Menzies J., Owen J. and Gibbs J. For those not familiar with these things, it reflects the relative seniority of the members – Chief Justice in the middle, the next most senior on his right, No. 3 on his left and so on. The most recent appointments Walsh and Gibbs are “on the wings”.

Another record of the occasion is seen in this picture:

The swearing in took place at Darlinghurst in Sydney. The High Court had not yet moved to its permanent home beside Lake Burley Griffin. As was the custom in those days, a knighthood (KBE) followed.

25 Wielding the sword is the Governor General Sir .

The High Court years His seventeen years on the High Court saw great changes in its membership, in its role and in the nature of its work. In relation to its membership, retirements, Sir Victor Windeyer (1972); Sir Edward McTiernan (1976) and deaths, Sir (1972); Sir (1973); Sir (1974) meant that in just over six years he had become the senior member of the High Court other than Chief Justice Barwick. Sir , who had been a later appointment, also resigned during that period (in 1979). After Sir Harry became Chief Justice, there were two further deaths (Aickin (1982); Murphy (1986) and a resignation (Sir to become Governor‐General, 1982).

This photograph is taken in 1976 in Melbourne, at the High Court’s then premises in Little Bourke Street.

The High Court at that time was still peripatetic. It followed the sun and came to Brisbane for about three weeks each June. Whilst there was a great deal of work, there was some time for relaxation.

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And for casual attire.

Whilst the process of abolition of Australian appeals to the Privy Council had commenced in 1968, it was not completed until the Australia Acts in 1986. At the time of his appointment to the High Court a significant range of Australian matters could thus still be heard by the Privy Council, including some appeals from the High Court itself.

It had become the custom to appoint members of the High Court to the Privy Council and he was appointed a Privy Counsellor in 1972. He was the second last High Court Justice to be so appointed. Sir Ninian Stephen was the last. He went to London on three occasions to sit on the Judicial Committee. The Privy Council’s then premises were on the corner of Downing Street and Whitehall, two doors away from No. 10. He told me that the room for the visting judge from overseas had a plate on the door saying “Colonial Judge” or perhaps “Colonial Judge’s Room”. He requested, and secured, its removal.

Let me turn to the changes in the role of the High Court and in the nature of its work.

At the time of his appointment to the High Court, most civil appeals to the Court were as of right – leave or special leave was not required – and were sometimes from a single judge of a Supreme Court. These were usually heard by a Court of three Justices. Justices sitting alone still heard a number of matters in the Court’s original jurisdiction.

During his period on the Court, the range of appeals as of right was reduced in stages, until in 1984 the requirement of special leave became general. The transfers of jurisdiction consequent on the establishment of the Federal Court effectively removed the single‐Justice cases. The restriction and ultimate abolition of appeals to the Privy Council, and the extension of the requirement for special leave to appeal, changed the role of the High Court significantly. It became in the fullest sense the final court for Australia and it could select the appeals that it heard.

27 And in the constitutional area things also had changed.

To recapture the political atmosphere prevailing in the early 1970s is a little difficult after the passage of more than 40 years but, to put it shortly, the relative positions of the Commonwealth and the States were rather different. The States seemed more influential than they now are, and to have more independence from, and less dependence on, the Commonwealth Government, including access to funds. The range of activities engaged in, or regulated, by the States was greater and in practical terms they affected people’s lives rather more.

The phrase “States’ rights” was much used as a political slogan, but it yet seemed to convey, to some extent at least, a notion that there were spheres of activity into which, as a matter of propriety in a federal system, perhaps also as a matter of constitutional law, the Commonwealth should not enter.

That conception was supported to a degree by the political circumstances. The Liberal Country Party coalition under Sir , Mr Holt, Mr Gorton and Mr McMahon had been in government since 1949. Whilst there had been some major Commonwealth legislation in former State areas – such as the Matrimonial Causes Act 1959, promoted by Sir Garfield Barwick when Attorney General – and while Mr Gorton’s government had flexed the Commonwealth muscles to a degree, overall the situation had remained fairly static. That all changed when the Whitlam Labour Government came into power in late 1972. That government had a quite different perception of the appropriate use of central political, legislative and economic power. After a generation in opposition it had an enthusiasm to use it. Inevitably that would create tensions which would result in constitutional litigation. And constitutional litigation which had a political taint to it. Not just because it was States against the Commonwealth, but also because the States principally challenging were governed by non‐Labour governments. It had the consequence that a Justice in the High Court who decided a matter in favour of the Commonwealth was labelled “centralist”, or “States’ righter” if he decided the other way.

The extent of the Commonwealth activity can be seen by looking at, for example, the cases – Cormack v Cope (1974) 131 CLR 432, Victoria v. The Commonwealth (1975) 134 CLR 81 and Western Australia v The Commonwealth (1975) 134 CLR 201. The legislation the validity of which was ultimately in issue in those proceedings halved the extent to which there could be variations in the numbers of voters between federal seats, provided for representation of the Northern Territory in the Senate, introduced a health insurance regime, and established a Commonwealth Petroleum and Minerals Authority.

The proposed electoral change was anathema to the Country Party. It was likely to reduce the number, but increase the area of, country electorates. The presence of territory senators would reduce the power of the States in the Senate. Uniformity of health administration along Commonwealth lines would be likely to have as a casualty Queensland’s much vaunted free hospital scheme. The powers of the Petroleum and Minerals Authority would be used to control practically the exploitation of natural resources in the oil or minerals rich States.

To that was added the Australian Assistance Plan, the subject of Victoria v. The Commonwealth (1974) 135 CLR 339. Without any legislative backing other than two one line appropriations under the heading “Australian Assistance Plan” in the Appropriations Act, there was financed the Australian Assistance Plan, which was to provide a nationally co‐ordinated pattern of welfare services of all kinds. Effectively it would mean that money would come directly to local bodies for

28 Commonwealth approved schemes, thus reducing significantly the degree of control which States had over local statutory and other bodies.5

If one adds to that the loss to the States of sovereignty over their off‐shore areas effected by the Seas and Submerged Lands Act 1973 – held valid in New South Wales v. The Commonwealth (1975) 135 CLR 337 – it is clear that the position of the States appeared to be in serious, and rather rapid, decline. One can also see that life on the High Court during that period was rather busy, and high profile.

The fact that the held office for only three years tends to be obscured by Mr ’s Olympian presence and continued public visibility for many years thereafter. But the taste which the Commonwealth had had of the exercise of its powers proved addictive. Mr ’s coalition government which followed Mr Whitlam’s had no hesitation in using Commonwealth powers when it chose, for example by use of the trade and commerce power in s. 51(i) of the Constitution to prevent mineral sand mining on Fraser Island (Murphyores Inc Pty Ltd v. The Commonwealth (1976) 136 CLR 1). Nor have successive Commonwealth governments much restrained themselves.

The High Court moved to its new premises in Canberra in 1980.

The new Chief Justice When Sir Garfield Barwick retired in 1981, the Fraser government appointed Sir Harry as the new Chief Justice. He had been Acting Chief Justice on many occasions and the appointment was well received by the legal profession and by the press. Sir became the next Justice.

5 This ambit of Commonwealth power in this regard has been discussed in recent cases: see Pope v. Federal Commission of Taxation (2009) 238 CLR 1, Williams v. The Commonwealth (2012) 248 CLR 156, Williams v. The Commonwealth [No 2] (2014) 252 CLR 416.

29 Gareth Evans, then a Labour Senator and the Federal Opposition’s spokesman on legal matters, was perhaps a touch less than generous in remarks on the appointment of the Chief Justice.

30 In due course Sir Harry was sworn in as Chief Justice.

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Sir Harry participated in so many decisions in his 36 years as a judge that it would be impossible to deal with them satisfactorily here. A very comprehensive discussion of them, on which I could not improve, may be seen in Glen Williams’ paper “Sir Harry Gibbs” in White and Rahemtula (eds), Queensland Judges on the High Court at 58‐72 (Supreme Court of Queensland Library), 2003.

What may be said is that he believed in development of the law – and change, when necessary – by judicial decision, but he did not regard courts, including the High Court, as a vehicle for major social change. It is unlikely that he would have decided the Mabo cases in the same way as their majorities; he would have regarded so significant an alteration as a matter for the legislature.

His views were encapsulated in his observations in the Second Territorial Senators Case (1977) 139 CLR 585 at 599, when dealing with overruling previous decisions:

“No Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the laws reports were blank, or as though the authority of a decision did not survive beyond the rising of the Court. A Justice, unlike a legislator, cannot introduce a programme of reform which sets at nought decisions formerly made and principles formerly established. It is only after the most careful and respectful consideration of the earlier decision, and after giving due weight to all the circumstances, that a Justice may give effect to his own opinions in preference to an earlier decision of the Court”.

32 As Chief Justice, Sir Harry presided with dignity, fairness and efficiency. A problem he encountered was the strain imposed on the Court by the ‘Murphy affair’, particularly when Justice Murphy insisted on returning to the Bench while inquiries into the allegations against him were still pending.

During his time as Chief Justice he represented the Court overseas on a number of occasions, in China:

33 at Lawasia in Manila

in India

34 and in Malaysia

After retirement After retiring at the age of 70, he remained very involved in legal and in community affairs. From 1987‐91, he was Chairman of a committee reviewing the Commonwealth’s criminal laws. In 1989, he was Chairman of an inquiry established by the Queensland Parliament in relation to the conduct of two judges, in 1990 and 1991 he conducted for New South Wales an Inquiry into Community Needs and High Voltage Transmission Line Development. He was also the Menzies Lecturer at the University of Virginia in 1987 and in the same year Chief Adjudicator in the BHP Pursuit of Excellence awards. He was Chairman of the Australian Tax Research Foundation from 1990. He also served as the President of the Kiribati Court of Appeal from 1988 to 1999. This was one of Australia’s initiatives to assist the Pacific countries with the rule of law.

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36 It was not all work.

And there were trips to Japan (1990).

37 French Polynesia (1991).

and Fiji.

38 After retirement, perhaps partly as a response to what he saw as the activism of the Mason Court, he also became active, and rather more vigorously than one might have expected, in public discussion of constitutional law and related issues. A particular interest was the presidency, since 1992, of the Society, a conservative body formed to promote the discussion of such matters. He also took an active part against the proposal for an Australian republic in the campaigns leading to the 1999 referendum. I said to him one day when we were having lunch: “If you keep this up, people will say you’re the first judge since Bert Evatt to leave the High Court for politics”. He grinned and said: “Oh, no they won’t”.

Honours and awards During his lifetime he received many honours. As I have said on appointment to the High Court he was created KBE, on appointment as Chief Justice GCMG.

39 On retirement he was made a Companion of the Order of Australia.

He was a recipient of the in 2003. He was an Honorary Bencher of Lincoln’s Inn and had been awarded honorary doctorates in law from the University of Queensland and Griffith University.

In conclusion Although he was in many respects a private man, he was personally very popular and was highly regarded for his companionship, good humour and erudition.

40 That is illustrated, I think, from the photograph of the dinner given him when he became Chief Justice in 1981 by his Associates to that time. A few familiar faces may be seen.

On his retirement in 1987, the entry in the Australian Law Journal concluded: “in all necessary respects he was a model Chief Justice of Australia”. I would elaborate by repeating the words we used of him in the entry to the Oxford Companion to the High Court (2001), namely that he “brought to the High Court great strength of intellect, wide knowledge and experience, a swift grasp of complex issues, a strong underlying sense of fairness and justice, and outstanding clarity of expression.”

He died, as you know, on 25 June 2005. He was 88.

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