Australian Judges

Australian Judges #

A number of Senior Australian Judges have stood out as outstanding paragons of virtue either in exemplary dissenting decisions, speaking out or as the heads of Investigating Bodies. In most cases these have been at great personal cost to their individual and professional lives. Many comment on what an isolating experience it becomes.

David Collins

The Commission of the first Judge Advocate David Collins, dated 24 October 1786, appointed him Deputy Judge Advocate in the Settlement within our Territory called New South Wales. He also had a warrant as Judge Advocate to the Detachment of His Majesty’s Marine Forces. Henry Brewer, a midshipman, was appointed provost marshal, to bring charged offenders before the courts.

The official position was that the colony should be a multi-purpose one as a penal colony, a strategic free settler outpost, and an opportunity to acquire flax for sails and Norfolk pines for mast posts.

In terms of Indigenous peoples, the Governor Arthur Phillip expended remarkably efforts to develop mutually respectful relationships. Beautifully clear principles were enunciated.

The shedding of native blood was prohibited as a crime of highest nature”. These people were to be considered equal to the most polished European. They could not be deprived of their land without their consent. They could justifiably resist with force any invaders.

Equality before the law was demonstrated by the first court cases concerned marines; Private Green for being drunk on guard, put on probation, and Private Bramwell, who was sentenced to 200 lashes for assaulting a female convict, Elizabeth Needham, he had been intimate with, but who later refused his advances. Despite the marine’s concerns, it was a second reflection of Lord Sydney’s and Governor Phillip’s policy of treating convicts and free settlers as equals before the common law and authority. The first concern was convicts receiving equal share of food as free men and officers.

The next two Judges appointed in 1810, were theBent brothers, Ellis and Jeffery. They were “bent” by name and deed, believing resolutely, that the law was there to protect the privileged from disadvantaged barbarians, resisting any attempts of former convicts being accepted in respectful society.

John Hubert Plunkett #


Perhaps the most isolated legal figure was John Hubert Plunkett, an Irish Catholic prosecutor who successfully brought the murderers of the 1838 Myall Creek massacre to justice despite the resistance and hostility of the media supporting the budding bunyip aristocracy of landowners. The case established the principle that “the natives of the colony have equal rights with the people of European origin to the protection and assurance of the Law of England”. Mark Tedeschi QC.

John Hubert Plunkett became the first Catholic Solicitor-General and then the first Catholic Attorney-General of New South Wales.

Sir Redmund Barry #

Barry, Sir Redmond (1813–1880) by Peter Ryan

Adapted from Excerpts of Australian Dictionary of Biography, Volume 3, (MUP), 1969

Sir Redmond Barry born and educated in Ireland admitted to an overcrowded Bar, so was forced to emigrate to Australia in 1839.

For part of the voyage he was confined to his cabin by the captain because of an unconcealed love affair with a married woman passenger. The matter became known to Bishop William Grant Broughton and other influential people, and did not help his reputation or prospects of employment in Sydney. He was admitted to the Bar there on 19 October.

So Melbourne became his home. No sense of exile enters his large private correspondence to England and Ireland. Though his values were wholly those of the cultivated European, he sought to plant these values in his new land and had nothing in common with many of his fellow colonists who saw the settlement chiefly as a means to the fortune which would enable them to retire home in comfort to the British Isles.

Barry was admitted to practice by its first judge, the vituperative and eccentric John Walpole Willis. In the two years that Willis presided, Barry showed another of the qualities by which he was to be remembered — his invincible politeness and unfailing, if elaborate and old-fashioned, courtesy. His diaries show that the gross provocation of Willis from the bench often reduced the young barrister to a state of almost unendurable tension; yet his decorous demeanour in court was never seen to be ruffled.

In the early years of Melbourne Barry became unofficial standing counsel for the Aboriginals. He laboured as hard and as earnestly upon their cases, often capital matters, as he did upon his other briefs, though he rarely, if ever, received a fee for such services. His interest in the Aboriginals was general and lasted all his life. Though he accomplished for them little of practical value, his open-minded and unprejudiced approach was in advance of that of many even of the most liberal of his contemporaries.

In 1851, when the Port Phillip District was separated from New South Wales as the colony of Victoria, Barry was appointed its first solicitor-general, a position which he held briefly, for he was elevated to the new bench of the Supreme Court of Victoria in January 1852. He was the first puisine judge of that court and, after the appointment of (Sir) Edward Williams as a second puisne judge in July 1852, Barry held the appointment of senior puisne judge until his death. (Puisne = inferior member of superior court.)

During his whole residence in Melbourne Barry was prominent or foremost in every phase of social, cultural and philanthropic activity. To list all the causes or organizations whose interests he promoted would be almost impossible; as examples, he was a founder of the Melbourne Mechanics' Institute (now the Athenaeum), a prominent member of the Separation movement, thrice president of the Melbourne Club, active in the Melbourne Hospital, the Philharmonic Society, the Philosophical Institute, the Royal Society of Victoria — even the Polo Club. He also held a commission in the Victorian Volunteers, the local militia. It is curious, and is perhaps attributable to his friendship with many prominent squatters, that he seems to have played no active part in the anti-transportation movement, though his opinions were distinctly against sending convicts to Victoria. His concern for the diffusion of learning was such that he allowed members of the public to come at night to read books and journals in his house, before there was a public library.

His private benevolence was liberal, though discreetly bestowed. Irish famine relief, the building of new colonial churches both Protestant and Catholic, the needs of less fortunate relations in Ireland and the alleviation of personal distress in Melbourne all made inroads upon a fortune which, though never great, he did not seek to augment by speculation. Public labour left little time for private aggrandizement; at various periods of his life he trod uncomfortably near the edge of real financial difficulty and died a poor man.

Though already a celebrity when he ascended the bench, he had not even begun his greatest and most enduring works. He was (despite beliefs that the credit belongs largely to Hugh Childers) the indubitable prime founder of the University of Melbourne, of which he was first chancellor (1853), a position he held till his death. He was equally the father of the Melbourne Public Library (now the State Library of Victoria) and its then associated Art Gallery. Over the library trustees too he presided until his death. In both spheres his achievement was great, for the university was able to attract outstanding men as its first professors and well within Barry’s lifetime its degrees grew to command world-wide respect. In the same period the library became recognized as one of the great collections of the world, administered upon the most liberal principles. Any detailed criticism of the precise significance of Barry’s role in the development of these institutions must recognize that the greatest help came from his drive, energy and influence, his ceaseless care and toil for them, rather than from any more refined or subtle intellectual powers. He was as capable at dusting the books or acting temporarily as porter as at chairing the trustees' meetings at the library. At the university he would pace out the dimensions of some new building on the muddy ground before going in to preside as chancellor. He was criticized in both capacities for being autocratic. In rebuttal it could be argued that if he had not made the decisions and done the work nothing would have been accomplished, for often he was the sole person to attend meetings of which due notice had been given.

As a judge he was hard-working, competent and conservative. He undertook more than his fair share of the cases, worked very long hours and endured the arduous travel by coach, train or horseback required by the circuit courts. Moreover, because he lived nearer to the city than any of the other judges, his leisure was frequently interrupted by urgent applications at his house for legal processes. He gave much thought to matters concerned with the general administration of the law, to the quality of the Supreme Court Library, to the design of the new and splendid court buildings in William Street, though he did not live to sit there.

In 1864 he was involved in a dispute with the attorney-general, George Higinbotham, over the relationship between the judges and the Crown. Barry wrote direct to the governor, Sir Charles Darling, informing him that he proposed to take a short leave in Sydney. Higinbotham insisted that an ‘officer of his Department’ had no right to take such a step. To admit himself merely ‘an officer’ of the department of such a democratic attorney-general as Higinbotham was anathema to Barry, and the dispute was acrimonious.

In criminal cases Barry had a reputation for harshness, though it was a harsh period and he was in tune with his times. The florid and slightly sanctimonious speeches with which he frequently seasoned his sentences cannot have made him loved, and certainly he valued the purely retributive elements of the law. Yet he supported the Discharged Prisoners' Aid Society and stressed the importance of the rehabilitation of a criminal who had paid his debt to society. He thought of Victoria as a frontier area where the law was not yet sufficiently respected. In sentencing Henry Garrett to ten years labour on the roads for robbery in company in 1855, he said: ‘The sentences of the Court may be thought harsh, but those sentences will be mitigated as the country becomes more settled and composed’.

He presided over the trials of most of the Eureka rebels in 1855, including that of Raffaello Carboni. No charge of bias or harshness can be urged against him here, and all the accused were acquitted. In the cases of the convicts accused of the murder of John Price, inspector-general of penal establishments in 1857, he conducted the several trials with a rigor and severity out of keeping with the best judicial attitude, and is perhaps most open to criticism for refusing to assign counsel to defend the accused.

Probably his most famous trial was that of Ned Kelly in 1880. Though the Kelly legend continues to excite attention, no substantial criticism of Barry’s conduct of that trial can be sustained.

When the chief justice, Sir William à Beckett, resigned in 1857 Barry very reasonably expected to succeed him. The post went instead to (Sir) William Stawell, the attorney-general, after a series of political manoeuvres hardly in accordance with the highest traditions for judicial appointments. Their letters show that relations between Stawell and Barry remained unhappy, and the disappointment was one that Barry never forgot.

On 18 August 1846 Barry made the acquaintance of Mrs Louisa Barrow, a woman of small education and lower social position than his. Though they never married, the relationship between them remained affectionate, tender and devoted in the extreme until the end of Barry’s life. She bore him four children, Nicholas, Eliza, George and Fred (b.1847, 1850, 1856, 1859 respectively), all of whom took Barry’s name. Parents and children frequently appeared together on public occasions such as theatre performances. The relationship earned him occasional criticism, especially from Charles Perry, the Anglican bishop, yet it was not a cause of his failure to be appointed chief justice. Mrs Barrow farmed a property at Syndal to the east of Melbourne and Barry, in his spare time, cultivated another small property near by — his ‘Sabine farm’. Both fronted what is now High Street Road. His city residence, for most of his judgeship, was in Carlton Gardens near the present Exhibition Building. He lived and entertained here on a scale of some splendour. For Mrs Barrow he built a city house at 82 Brunswick Street, Fitzroy.

The inscription on the base of his statue in Swanston Street, outside the State Library, omits to record the latter honour. On various occasions he was acting chief justice, and once briefly administrator of the government of Victoria.

After a very short illness he died in East Melbourne on 23 November 1880, only twelve days after the execution of Ned Kelly. He was buried in the Melbourne general cemetery; although the gravestone does not record it, Mrs Barrow was buried beside him upon her death some years later.

In affairs of the mind Barry was a classicist and a traditionalist rather than an innovator, a man of immense energy and conviction rather than of subtlety. He tended to be a little behind rather than abreast of the great new ideas of his time, as for example in controversies over evolution.

Harry Higgins #

Harry Higgins instituted the Harvester Judgement in 1907 establishing that the test of a fair and reasonable wage was *‘the normal needs of the average employee regarded as a human being living in a civilized community’.*This set in concrete Australia’s reputation of fair go and egalitarianism.

Sir Garfield Edward John Barwick #

AK GCMG QC (22 June 1903 – 13 July 1997)

Some Judges are renown for their reasonable arguments, others for the vanity of wielding their persuasive powers eristically.

Without any Judicial experience, Barwick was promoted to the position of Chief Justice, replacing a highly respected Sir Owen Dixon, by Sir Robert Menzies in 1964. He retired in 1981.

After an undistinguished political career where Barwick managed to alienate most of his party and colleagues in the cabinet, the situation became so tense that Menzies offered him the recently opened position as the Chief Justice of the High Court. He had never been a Judge, yet by political patronage he is suddenly promoted beyond his competence. You would have to wonder how the fellow judges on the High Court would feel about this promotion of misplaced power and bullying superiority.”

Credited with building new High Court – Gar’s Mihal - Justice Garfield gained notoriety with his controversial advice to Sir John Kerr regarding the constitutional right to dismiss the Whitlam government in 1975, the nadir of the Justice System in Australia. Official lies covered up the roles of Anthony Mason, Malcolm Fraser, Prince Charles, Queen Elizabeth and countless others implicated in a constitutional coup de’tat.

His legacy has not been enhanced by the following “Humpty Dumpty” revelations: The tax evasion sluicegates opened in 1957 when trial lawyer Barwick persuaded the High Court that “absolutely” in the 1936 Tax Act did not mean “absolutely”; there could be exceptions. The torrent became a flood in 1974 when Barwick CJ, along with Harry Gibbs and Doug Menzies JJ, ruled that a profit of $2782 was a loss of $186,046. ** Evan Whitton**

Sir Richard Kirby writes: *"*For forty years Sir Garfield Barwick stood at the centre of power in Australia. He was an advocate who saved the private banks from Chifley and fought to destroy the Communist Party. He was the Attorney-General who reformed the divorce laws and the Foreign Minister who put Australian troops in Vietnam. He was the Chief Justice who broke down the tax laws, dramatically advanced the power of Canberra and gave Sir John Kerr the constitutional imprimatur to dismiss the Whitlam government.

Barwick is the portrait of a complex and driven man who began life in the Sydney slums, a man totally committed to the exercise of power and utterly certain of the rightness of his beliefs. It is also a remarkable insight into the inner workings of Australia’s supreme legal institution."

1980’s #

A number of Judges were implicated in consorting with criminals throughout the sixties, to the early eighties. Judges Murray Farquhar, John Forde, Lionel Murphy, David Yeldham, and Marcus Einfeld all betrayed their special position of trust demanding the highest standards of conduct. As well a number of judges have routinely had to face Parliamentary committees to explain some of their decisions.

**Lionel Murphy **is perhaps the most conflicted, controversial and polarising. Variously described as a reformer and a man of principle or a reckless activist Judge. Credited with reforming the Family Court, no fault divorce, trade practices Act and Racial discrimination, he courted many fierce enemies. His appointment to the High Court so enraged The Chief Justice, Edward Barwick, he claimed to the Prime Minister, Gough Whitlam that Murphy *“is neither competent nor suitable”. * Barwick was fully qualified to know, due his own lack of suitability, as we saw above. Murphy’s supporters claim he was hounded by opponents whose only motivation was to get rid of a political activist who posed a threat to established social order.

During the eighties flood gates of allegations opened. “Of the 41 allegations, made as inquiry submissions, 20 were rejected out of hand. Those that survived, but remained untested, chiefly centre on the relationship between Murphy and NSW Labor premier Neville “Nifty” Wran, and Murphy’s alleged willingness to tap Nifty for a few favours for mates, prominent among them, Sydney gangster Abe Saffron. By current standards, the loot was modest: a lease on the harbourside land occupied by Sydney’s Luna Park, before a 1979 fire there; contracts to refit Central Station. “Evidence” that Murphy was in cahoots with Saffron, included that he used to dine at Saffron’s motel restaurant in Edgecliff. A motel restaurant in Edgecliff! Them’s were the days.” Guy Rundle


**George Williams, **a highly regarded legal expert, contends “that other inquiries would typically not release allegations lacking in credibility as here”.

Outstanding Judges who had the courage to stand up against corruption included Clarrie Briece and Paul Flannery.

Frank Costigan #

In 1980, Frank Costigan QC. chaired the royal commission on the activities of the Federated Ship Painters and Dockers Union. The commission courageously moved from the investigation of union criminality to allegations of tax evasion by prominent leaders, Judges, other QC’s and organised crime. Since then governments have learned to impose narrow parameters on all commissions so that their mates are not embarrassed. Senior Barristers and some Judges were further embarrassed in the late 1990’s when an intrepid investigative Journalist found some a little hesitant in paying income tax.

Judges instrumental in conducting fearless corruption inquiries include: The Honourable Justices: Sir Lawrence Street, Ian Temby, Tony Fitzgerald, James Wood, Peter McClelland **AM **and many others. At least two cabinet ministers have been jailed as a result of these official inquiries; Rex Jackson in NSW for accepting bribes in an early release of prisoners and Police commissioner Terry Lewis in Queensland.

Writing twenty five years later, Tony Fitzgerald, credited with bringing down a Queensland Government, reflects on the hazards of speaking out. The pressure on Mr Fitzgerald and his team at the inquiry was relentless. *“We couldn’t stop, it was 24/7,” *he said. Asked about the impact at home, he agreed there had been “consequences”, but even now he won’t go into detail about what his family went through, explaining that they had all moved on from that fraught time.

Mr Fitzgerald said. “In a sense, I think that anyone who does an unpopular task puts themselves at risk, whether it be physical or professional risk or critical risk. That’s a consequence. It’s always out there."

Mr Fitzgerald said ultimately he realised that it would be impossible for him to stay or work in Brisbane. In 1998, he and his wife moved to Sydney, where he became a judge of the appeals division of the NSW Supreme Court.

He is scathing of the legal bar in Brisbane, of which he was once a prominent member, branding it fearful of change. *“Up there in the legal profession I’m a square peg in a round hole,” he said. “There . . . are always character assassins, there are always the envious. Up there . . . to me, conformity is an absolute way of life.” *JAMIE WALKER, THE AUSTRALIAN SEPTEMBER 21, 2013

Other High Court Judges have broken rank and spoken out about the politicisation and the closed culture within the Judiciary, including Justice Dyson Heydon and Michael Kirby.


Justice Mary Gaudron, the youngest female appointee to the High Court, made significant contributions towards fostering a more progressive climate towards a just society. She is perhaps best remembered for the Mabo case, where in joint judgment with Justice William Deane, she said that Australia’s past treatment of Indigenous Australians was “the darkest aspect of the history of this nation”. (Wikipedia)


PeterMcClellan

Justice Peter McClellan deserves to be the Australian of the Year for his relentless pursuit of prestigious leaders under scrutiny by the Commission into Institutional Responses to Child Sexual Abuse. He tread where angels fear to tread. McClellan proved to be a chair intolerant of disingenuity, and made it clear that status could not buy immunity. He challenged pillars of the community and senior church figures, including Arch-bishop George Pell, Australia’s most senior Catholic and third in line in the world,over claims they did not know abuse was occurring.

One of the many positive paradigm shifts of the ***Royal Commission into Institutional Responses to Child Sexual Abuse *** is the increased sensitivity around the treatment of victims (survivors) especially in our courts. Peter McLellan has reset the system by assimilating past trauma into the national psyche, making it acceptable to listen to the victims and believe the hurt, anger and pain and not allow it to be re-enacted to feather the nests of unscrupulous desperate depraved lawyers. Evan Whitton tells of victims vomiting in the witness stand.

Helen Garner on Judges #

Juries

Aeschylus is credited with the concept of having crimes assessed and determined by the accused peers. In his trilogy, The Oresteia, Athene, abdicates her position as supreme arbiter and calls on 12 citizens of Athens to hear both sides of a family blood feud to come up with a rational solution to break a cycle of blood vengeance. When the Jury results in a six – six tie, Athene casts her ballot on the side of dismissal.

A judge directed the jury to acquit the woman because the charge against her could not be proved. We all stood up, incredulous. But then came to me a sharp flash of illumination: what we were bowing to was not this thin, tough faced man in a red robe, but to the power that he exercised, that passed through him, that our society gives him. I felt the spirit of the law – something tremendous restraining itself by reason. They really do have to prove it.

Rod Higgins #

Judges are just human – or at least some are as vulnerable as the rest of us.

A magistrate in his sixties, left his wife to form a relationship with a young court assistant. He maintains his relationship with a young court clerk attracted extensive media coverage says his partner was pushed “over the top” by “salacious revelations of her private life” in the days leading up to her suspected suicide.

But the newspaper that led the coverage says the 23-year-old clerk sought out the stories and co-operated with its reporter.

Mr Higgins has now spoken to the ABC’s Media Watch about the events leading up to his fiancee’s death.

He told the program that Ms Petrie got up about midnight on the day of her death and went for a walk.

“I begged her to stay but she said she needed to clear her head. Over the next hour, she sent me four or five text and voice messages, one of which said, ‘I can’t cope with all the coverage’. She apologised to me and said she loved me but I’d be better off without her,” he said.

Mr Higgins said Ms Petrie suffered from depression and anxiety and had recently told him she was “in a dark place”.

He said the media coverage about their relationship was a factor in her death.

“She was a lovely, young, fragile, impressionable girl. I have no doubt at all that the Herald Sun and Daily Mail articles tipped her over the top.”

In a statement, Herald Sun editor Damon Johnston said Ms Petrie not only supported the stories being written about her relationship but “repeatedly asked” the newspaper to publish a story about her previous relationship with another 59-year-old magistrate Costas Kilias.

Mr Johnston said Ms Petrie agreed to go on the record when she was told the story would not run, saw a proof of the story before it was published and thanked the reporter for the story.

“On the day it was published she contacted the reporter, and expressed her annoyance we’d received no follow up tips,” Mr Johnston said.

Ms Petrie appeared to show continued support for stories about her. Supplied: Herald Sun

Mr Johnston defended the stories as public interest journalism given concerns raised by “several senior legal figures” within the court system about the relationship, and said Ms Petrie wanted to expose a toxic culture at the court and “saw herself as a whistleblower”.

“Ms Petrie … made it clear in correspondence … that she was not concerned with the coverage and importantly did not indicate to us she was suffering any ill-effects as a result of any articles or was in a fragile state.”

Daily Mail Australia executive editor Lachlan Heywood said Ms Petrie was open about her relationship. He blamed the courts’ toxic work culture for putting Ms Petrie under pressure.

But Mr Higgins said Ms Petrie was “devastated by the salacious revelations of her private life” and she had no intentions of publicly commenting on court culture. -ABC