The Barwick Approach
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Is Aunty Even Constitutional?
FEATURE IS AUNTY EVEN CONSTITUTIONAL? A ship stoker’s wife versus Leviathan. n The Bolt Report in May 2013, an and other like services,” authorised the federal erstwhile Howard government minister government to be involved with radio broadcasting. was asked whether privatizing the At first sight, it would seem a slam dunk for ABC would be a good thing. Rather Dulcie. How could the service of being able to Othan answer, he made pains to evade the question, send a letter or a telegram, or make a phone call to leaving viewers with the impression that there are one’s Aunt Gladys in Wangaratta to get details for politicians who would like to privatise the ABC this year’s family Christmas dinner, be in any way but don’t say so from fear of the controversy. the same as radio broadcasting news, music, and If only they had the courage of the poor, barely crime dramas to millions of people within a finite literate ship stoker’s wife in 1934 who protested geographical area? against the authorities’ giving her a fine for the This argument has been reduced to a straw man simple pleasure of listening to radio station 2KY by no less an authority than the current federal in the privacy of her solitary boarding house room. Parliamentary Education Office, which asserts on All federal legislation has to come under what its website that Dulcie Williams “refused to pay the is called a head of power, some article in the listener’s licence on the grounds broadcasting is not Constitution which authorises Parliament to “make mentioned in the Constitution.” It is true that, when laws … with respect to” that particular sphere. -
Review Essay Open Chambers: High Court Associates and Supreme Court Clerks Compared
REVIEW ESSAY OPEN CHAMBERS: HIGH COURT ASSOCIATES AND SUPREME COURT CLERKS COMPARED KATHARINE G YOUNG∗ Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court by Artemus Ward and David L Weiden (New York: New York University Press, 2006) pages i–xiv, 1–358. Price A$65.00 (hardcover). ISBN 0 8147 9404 1. I They have been variously described as ‘junior justices’, ‘para-judges’, ‘pup- peteers’, ‘courtiers’, ‘ghost-writers’, ‘knuckleheads’ and ‘little beasts’. In a recent study of the role of law clerks in the United States Supreme Court, political scientists Artemus Ward and David L Weiden settle on a new metaphor. In Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court, the authors borrow from Johann Wolfgang von Goethe’s famous poem to describe the transformation of the institution of the law clerk over the course of a century, from benign pupilage to ‘a permanent bureaucracy of influential legal decision-makers’.1 The rise of the institution has in turn transformed the Court itself. Nonetheless, despite the extravagant metaphor, the authors do not set out to provide a new exposé on the internal politics of the Supreme Court or to unveil the clerks (or their justices) as errant magicians.2 Unlike Bob Woodward and Scott Armstrong’s The Brethren3 and Edward Lazarus’ Closed Chambers,4 Sorcerers’ Apprentices is not pitched to the public’s right to know (or its desire ∗ BA, LLB (Hons) (Melb), LLM Program (Harv); SJD Candidate and Clark Byse Teaching Fellow, Harvard Law School; Associate to Justice Michael Kirby AC CMG, High Court of Aus- tralia, 2001–02. -
Macquarie Uni Sir Edward Mctiernan a Ninetieth Year Memoir
318 MACQUARIE UNIVERSITY AUSTRALIAi''!AUSTRALLfu~ JOURNAL OF LAW AND SOCIETY SIR Em:ARD McTIEKll\NMcTlEKll\N A NINI NET! ETH YEAR MEMOMEHO IRI R The Hon. Mr ..Justice M.D. Kirby Chairman of the Australian Law Reform Conunission March 1982 ------------------- MACQU ARIE UNIVERSITY . AUSTRALIAN JOURNAL OF LAW AND SOCIETY SIR EDWARD McTIERNAN: A NINETIETH YEAR MEMOIR The Hon. Mr. Justice M.D. Kirby * Chairman of the Australian Law Reform Commission THE CULT OF JUDICIAL PERSONALITY The creation of the High Court of Australia as a Federal supreme court at the 8!?eXB!?eX of the Australian judicial system and the appointrn ent to the Court of a small number of lawyers -inevitably attracts attention to the personalities of its members. Generations of lawyers have s[?ent-s[!ent- countless hours analysing the written words emanating from the High Court in the pages of the Commonwealth Law Reports. Vigorous speculation, now spilling over to the public press, attends the apDointment of new Justices. Great national controversy attended the retirement of Sir Garfield Barwick as Chief Justice and the appointment 'of his successor. I The r~tirement of Sir Ninian Stephen to accept appointment to the office of Governor-General of Australia from July 1981 likewise sparked a controversy which is current at this time of writing. In the public media, betting odds are offered on the chances of prospective candidates for appointment, the names of the haplesshal?less alternatives, and their comparative professional distinctions being reduced to the mathematical equation of some unnamed speCUlator'ssl?eculator's fancy. Endless hours of gossip have engaged succeeding decades of Australian lawyers concerning the personality, performance, te~perament and judicial attitudes of the Justices of the High Court. -
The Chief Justice and the Governor-General Chief Justice Robert French
Melbourne University Law Review Annual Dinner The Chief Justice and the Governor-General Chief Justice Robert French 29 October 2009, Melbourne It would be something of an exaggeration to describe Law Reviews as the only drivers of intellectual discourse about law, justice and the legal system. In fact they have been rather harshly treated in the past in the United States and in Australia. Fred Rodell's famous denunciation "Goodbye to Law Reviews" was published in the 1930s in the United States 1 and in 1999 in the Australian Law Journal 2. His paper, bolstered in the Australian Law Journal by some like-minded sentiments from John Gava, included laments about bad writing, mediocrity and lack of humour. As to the latter, he observed: 3 The best way to get a laugh out of a law review is to take a couple of drinks and then read an article, any article, aloud. That can be really funny. ______________________ 1 F Rodell, "Goodbye to Law Review" (1936) 23 Virginia Laaw Review 38. 2 F Rodell, "Goodbye to Law Reviews" (1999) 73 Australian Law Journal 593. 3 F Rodell, "Goodbye to Law Reviews" (1999) 73 Australian Law Journal 593 at 594 2. On the other hand a measured defence and some praise was offered by Justice Kirby in 2002 in his piece "Welcome to Law Reviews" published in this University's Law Review. He said: 4 Law reviews can have a value that transcends even the work of the High Court of Australia. They must criticise, cajole and analyse the law. They must question received wisdom and current orthodoxy. -
Garfield Barwick
ADDRESS Garfield Barwick The following is an edited version of an oration given by the Hon Tom Hughes AO QC at the 2012 Garfield Barwick Address. Any memoir of Garfield John Edward Barwick should begin with a brief description of his family background. He was born on 22 June 1903, the eldest of three sons of Jabez Edward and Lily Grace Barwick. Both parents were of English stock; each of them had a rural background. After marriage they settled in Sydney, first at Stanmore, where Barwick was born; and then at Paddington, in a rented terrace house situated in Glenview Street. Barwick was born into a stable marriage. His father was a printer, an occupation requiring close proximity to lead so that he later suffered incapacity for work from lead poisoning. Barwick's mother was an Ellicott. She was probably the stronger partner in the marriage. They were practising Methodists, a non-dogmatic religion that sets great store on the importance of hard work as a pathway to Picture by Steven Siewert / Fairfax. salvation. Barwick attended Sunday school. He showed brilliance as a student at primary school this gap by working as a managing clerk in a firm of and obtained a scholarship to Fort Street Boys High, solicitors run by Roy Booth, also an old boy of Fort a selective high school that was a seedbed for the Street. later development of professional skills. His career at Barwick was admitted to the bar on 1 June 1927. Fort Street won him a scholarship to the University Then he had to find chambers in which to establish a of Sydney in A rts/L a w where he graduated in 1925 practice. -
Forbes Flyer
Forbes Flyer No 42 (Summer 2020-2021) The newsletter of the Francis Forbes Society for Australian Legal History History reports itself This is the last edition of the Forbes Flyer with me as its editor. I have enjoyed the experience and look forward to making further contributions in due course. Like all human conditions, law is incapable of definition. This is because a definition is a plan. The Yiddish saying is Mann tracht un Gott lacht, or man plans and God laughs. What is singular about law is that it is man’s attempt to maintain the plan after the laughter has subsided. On Audible, I am enjoying Andrew Sachs's narration of Simon Schama's The Story of the Jews. At one stage, Schama suggests that law is one of our answers for the questions “Who are we?” and “Why is this happening to us?” Liberty and safety have been themes for lawmakers through the centuries. Through a western lens, they are the ancient goddesses Libertas and Salus dragged into the ideologies of republican and later, imperial Rome. Would Cicero - would any of us a year ago - ever have thought that "salus populi suprema lex esto" was to be ground out with necessary but perhaps Orwellian efficiency every five minutes on every rail platform in the world as "Your safety is our greatest concern"? Liberty and safety are themes for this edition. One way that lawgivers can provide liberty and safety is through laws about the land on which we live. Possession, dispossession, and in the Jewish case repossession, are concepts as controversial as they are vital. -
The Former High Court Building Is Important As the First Headquarters of the High Court of Australia
Australian Heritage Database Places for Decision Class : Historic Identification List: National Heritage List Name of Place: High Court of Australia (former) Other Names: Federal Court Place ID: 105896 File No: 2/11/033/0434 Nomination Date: 13/06/2006 Principal Group: Law and Enforcement Status Legal Status: 15/06/2006 - Nominated place Admin Status: 16/06/2006 - Under assessment by AHC--Australian place Assessment Recommendation: Place meets one or more NHL criteria Assessor's Comments: Other Assessments: : Location Nearest Town: Melbourne Distance from town (km): Direction from town: Area (ha): Address: 450 Little Bourke St, Melbourne, VIC 3000 LGA: Melbourne City VIC Location/Boundaries: 450 Little Bourke Street, Melbourne, comprising the whole of Allotment 13B Section 19, City of Melbourne. Assessor's Summary of Significance: The former High Court Building is important as the first headquarters of the High Court of Australia. It operated from 1928 to 1980, a time when many Constitutional and other landmark judicial decisions were made affecting the nation’s social and political life. The whole of the building and its interior design, fitout (including original furniture) and architectural features bear witness to these events. As the first purpose built building for the home of the nation's High Court, it combines the then budgetary austerity of the Commonwealth with a skilled functional layout, where the public entry is separated from the privacy of the Justices’ chambers and the Library by the three central Courts, in a strongly modelled exterior, all viewed as a distinct design entity. The original stripped classical style and the integrity of the internal detailing and fit out of the Courts and Library is overlaid by sympathetic additions with contrasting interior Art Deco design motifs. -
1 Sir Harry Gibbs a Paper Presented
Sir Harry Gibbs 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 Judge of the Supreme Court of Queensland, 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 University of Queensland 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 Judges on the High Court, edited by Michael White QC and Adam Rahemtula . -
'Anomalous Occurrences in Unusual Circumstances'? Towards a History
‘Anomalous Occurrences in Unusual Circumstances’? Towards a History of Extra‐ Judicial Activity by High Court Justices Fiona Wheeler* High Court of Australia Public Lecture High Court of Australia Canberra 30 November 2011 Justices, distinguished guests, ladies and gentlemen, it is indeed a great privilege to be invited here this evening to speak in the High Court of Australia Public Lecture series, following in the footsteps, earlier this year, of my colleague and friend, Professor John Williams of the University of Adelaide. I’d like to begin by thanking the Court and its staff and to acknowledge all who have helped to make this lecture possible, especially Dr Hanna Jaireth, the Court’s Public Information Manager. Introduction – Judicial Independence and the High Court I was drawn to this topic — the history of extra‐judicial activity by High Court Justices — by two things: first, my longstanding interest as a constitutional lawyer in the independence of the judiciary from the other branches of government and secondly, by my closely related interest in the High Court of Australia itself. The independence of the judiciary from government is a fundamental principle of Australian democracy. It forms part of our common law inheritance and is embedded in Chapter III of the Australian Constitution. Its rationale is both simple and compelling. Keeping the judiciary apart from the legislature and the executive promotes public confidence in judicial impartiality which is pivotal to acceptance of * ANU College of Law, ANU. The quote in the title is from Wainohu v New South Wales (2011) 243 CLR 181, 199 (French CJ and Kiefel J) (footnote omitted). -
The High Court of Australia: a Personal Impression of Its First 100 Years
—M.U.L.R— Mason— Title of Article — printed 14/12/03 at 13:17 — page 864 of 25 THE HIGH COURT OF AUSTRALIA: A PERSONAL IMPRESSION OF ITS FIRST 100 YEARS ∗ THE HON SIR ANTHONY MASON AC KBE [This article records my impressions of the High Court, its jurisprudence and the Justices up to the time when I became Chief Justice in 1987. For obvious reasons it would be invidious for me to record my impressions of the Court from that time onwards. The article reviews the work of the Court and endeavours to convey a picture of the contribution and personality of some of the individual Justices. The article concludes with the statement that the Court has achieved the high objectives of which Alfred Deakin spoke in his second reading speech on the introduction of the Judiciary Act 1903 (Cth). The Court has established its reputation as one of the world’s leading courts of final appeal and has fulfilled its role alongside the Parliament and the executive in our constitutional framework.] CONTENTS I Introduction.............................................................................................................864 II In the Beginning......................................................................................................865 III The Early High Court..............................................................................................866 IV Conflict with the Executive ....................................................................................867 V Conflict with the Privy Council ..............................................................................868 -
Appointing Attorneys-General to the High Court: a Case for Reform
James Bai and Harry Hobbs Appointing Attorneys-General to the High Court: a case for reform Article (Accepted version) (Refereed) Original citation: Bai, James and Hobbs, Harry (2017) Appointing Attorneys-General to the High Court: a case for reform. Alternative Law Journal, 42 (4). pp. 286-291. ISSN 1037-969X DOI: 10.1177/1037969X17732707 © 2017 The Authors This version available at: http://eprints.lse.ac.uk/86816/ Available in LSE Research Online: February 2018 LSE has developed LSE Research Online so that users may access research output of the School. Copyright © and Moral Rights for the papers on this site are retained by the individual authors and/or other copyright owners. Users may download and/or print one copy of any article(s) in LSE Research Online to facilitate their private study or for non-commercial research. You may not engage in further distribution of the material or use it for any profit-making activities or any commercial gain. You may freely distribute the URL (http://eprints.lse.ac.uk) of the LSE Research Online website. This document is the author’s final accepted version of the journal article. There may be differences between this version and the published version. You are advised to consult the publisher’s version if you wish to cite from it. Appointing Attorneys-General to the High Court: A Case for Reform James Bai and Harry Hobbs Abstract Throughout 2016, Attorney-General George Brandis QC repeatedly denied he intended to leave the Federal Parliament and take up a position on the High Court of Australia. -
Herbert Vere Evatt: Jurist, Politician, Person - the Paradox Scott Uyg
Bond Law Review Volume 21 | Issue 1 Article 4 2009 Herbert Vere Evatt: Jurist, Politician, Person - The Paradox Scott uyG Follow this and additional works at: http://epublications.bond.edu.au/blr This Article is brought to you by the Faculty of Law at ePublications@bond. It has been accepted for inclusion in Bond Law Review by an authorized administrator of ePublications@bond. For more information, please contact Bond University's Repository Coordinator. Herbert Vere Evatt: Jurist, Politician, Person - The aP radox Abstract This paper will seek to document the life and political and legal writings of H V Evatt. As will, indeed, be shown Evatt ec rtainly was an extraordinary personality with a significant intellect and a prodigious energy. His failings were not so much on an intellectual or academic front, but rather, ones that emanated from his interpersonal relationships with others. In this respect, his character presents somewhat of an enigma or paradox. Nevertheless, it is hoped that this review will highlight Evatt’s extraordinary political and legal achievements and reinstate him in the pantheon of such great jurists as Sir Owen Dixon and (such) Labor politicians as John Curtin and Benedict Chifley. Keywords Herbert Vere Evatt This article is available in Bond Law Review: http://epublications.bond.edu.au/blr/vol21/iss1/4 HERBERT VERE EVATT: JURIST, POLITICIAN, PERSON ‐ THE PARADOX SCOTT GUY Introduction This paper will seek to document the life and political and legal writings of H V Evatt. As will, indeed, be shown Evatt certainly was an extraordinary personality with a significant intellect and a prodigious energy.