A History of the Sir Garfield Barwick Address

The Sir Garfield Barwick Address is a lecture organised by the Legal Professional and Policy Branch of the NSW Liberal Party. Intended to honour the former barrister, Liberal Attorney General, Minister for External Affairs, and Chief Justice of the High Court of Australia, it has been held at Sydney’s Castlereagh Hotel since 2010.

Until now, the speakers have largely consisted of lawyer-politicians, who either served with Sir Garfield, or followed in his tradition. Speakers have included the former Prime Minister, John Howard, three Commonwealth Attorneys-General and a Chief Justice of the High Court. Future speakers are said to include former High Court justice, Ian Callinan, and a former associate to Sir Garfield, Garry Downes, a former Federal Court judge and President of the Administrative Appeals Tribunal.

First Sir Garfield Barwick Address:

On 28 June 2010, Senator George Brandis, then Shadow Attorney-General, gave the first Sir Garfield Barwick Address.

According to Liberal Party records submitted to the NSW Election Funding Authority, 40 people attended the function, raising $4140.

Brandis spoke on “The lawyer’s duty to public life”, reproduced in the NSW Bar Association’s “Bar News” (Summer 2010-11) issue, at page 118:

Those of you who are gathered here tonight – and I am sure there is an equivalent body on the Labor side as well – are both unusual and, in the manner of all unusual people, exceptional. You are unusual because you have remembered what, sadly, too many of our profession has forgotten – a belief in the noble possibilities of public life, the ethical professional value of service to the community, and the importance – for lawyers, foremost among all of the professions – to be active participants in our law-making processes.

The relationship between our profession and the profession of parliamentary service is one of the great traditions of our democracy, which has enhanced our parliaments and ennobled our profession. Its decline has impoverished them both. The people who are gathered here tonight, for this inaugural Garfield Barwick Address to the Legal Practitioners Branch of the New South Wales Division of the Liberal Party, share my belief that it ought to be restored – a belief of which Sir Garfield Barwick, in his own life and by the many distinctions which marked his great career, was an exemplar.

Second Sir Garfield Barwick Address:

The second Sir Garfield Barwick Address was given on 17 August 2011, by the Hon RJ Ellicott QC, former Attorney-General and Federal Court justice, and cousin of Sir Garfield.

According to NSW Liberal Party records, 32 people attended, raising $3525.

He spoke on “The life and career of Garfield Barwick”, reproduced in the NSW Bar Association “Bar News” (Summer 2011-12), at page 62:

This was undoubtedly a remarkable life. He had an amazing mind and an indomitable spirit. His enthusiasm for life and his own involvement in it was immediate and boundless. In many respects he was a pathfinder. He laid foundations and showed the way. If he believed a particular action on his part was proper and public duty required it he took it.

Third Sir Garfield Barwick Address:

The third Sir Garfield Barwick Address was given on 29 August 2012, by The Hon T J Hughes, former Attorney-General in the Gorton Government and barrister. He was accompanied to the event, and introduced by his son-in-law, Malcolm Turnbull.

According to NSW Liberal Party records, 49 attended, raising $5325

Hughes spoke on “Garfield Barwick”, reproduced in the NSW Bar Association “Bar News” (Autumn 2014), at page 60:

Barwick was a good and faithful servant of the law, starting with nothing but his inborn talents, rising to the pinnacle in practice, then becoming a great law reformer before 17 years in office as chief justice of Australia, where his tenure of office was efficient but at times controversial. By any acceptable standard, he was a truly great Australian.

Fourth Sir Garfield Barwick Address:

The fourth Sir Garfield Barwick Address is shrouded in some mystery.

According to records submitted to the Royal Commission into Trade Union Governance and Corruption, it was a “stirring” address, given in 2013 by John Howard, former Prime Minister. Howard “focussed on the values that Barwick sought to embody and promote and their currency for Australia.”

However, there is no comparable record of it in the fundraising records submitted to the NSW Election Funding Authority by the Liberal Party for the three previous addresses.

While the earlier addresses had been published in the “Bar News”, the organisers had proposed that Howard’s address be offered to Quadrant Magazine. However, no recording or transcription of the Address was made, and Howard was not able to rework his notes into a longer form paper for the magazine.

Fifth Sir Garfield Barwick Address:

While the earlier addresses had been given by lawyer-politicians, who like Barwick had worked both in the law and served in Parliament, and in high office as Ministers, the fifth address changed direction in being delivered by Murray Gleeson, former Chief Justice of the High Court and NSW Supreme Court.

Gleeson delivered the lecture on 20 August 2014. As yet, records for the 2014-15 financial year have not been reported by the NSW Election Funding Authority, so no particulars of the attendance and funds raised are available.

Gleeson spoke on “The Barwick Approach”, reproduced in the NSW Bar Association “Bar News”, (Summer 2014) issue:

As an advocate, Sir Garfield Barwick was a towering figure, nationally and internationally. In his 17 years as chief justice of Australia he brought the full force of his knowledge, experience and personality to his work. As the presiding judge in appeals to the High Court he was a formidable presence, often intervening in and directing the course of argument. Even in cases where he dissented, no advocate could afford to take him lightly. The other members of the court were all people with their own opinions, and they never deferred to his views, but at the same time they were well aware of his unequalled experience and his intellectual capacity.

He tended to be dismissive of arguments with which he disagreed, and there was very few, on the Bench or at the bar, who would care to engage him in a confrontation. His judgments, on a great variety of topics, are regularly cited in argument in the High Court. They appeal to practitioners more, I think, than to law teachers, partly because his eminence was squarely based on practical achievement and experience. His style is more that of an advocate than of a scholar. But it is not only a question of style. His whole approach to the solving of legal problems reflected his professional background. There is a continuity about his long career in the law which is essential to an understanding of his life’s work.

The Sixth Sir Garfield Barwick Address*:

What will be forever recorded as the Address never given is the lecture due to be given by The Hon J D Heydon AC QC, former Justice of the High Court, and Royal Commissioner into Trade Union Governance and Corruption. Scheduled to be delivered on 26 August 2015, Heydon withdrew amidst considerable controversy.

From the reasons he gave in declining to recuse himself from acting as Royal Commissioner, it is possible to give a flavour of the address Heydon might have given.

‘The Judicial Stature of Chief Justice Barwick Viewed in a Modern Perspective’: An Address Never Delivered by J D Heydon

(All material is taken verbatim from the ruling – with the exception of the [sic] following Heydon’s erroneous description of Robert Jackson as a Chief Justice of the US Supreme Court. Jackson served as an associate justice of that court.)

Sir Garfield practised as a barrister until the age of 55. He achieved a reputation as the greatest Australian barrister of at least the middle third of the 20th century. In that role he achieved a stature comparable with predecessors or contemporaries in other fields like Kingsford Smith, Macfarlane Burnet, Melba or Bradman. He then embarked on a political career which lasted less than six years. After some months on the backbenches, he became Attorney-General until 1964. From 1961 to 1964, he, like Dr H V Evatt and J G Latham before him, also bore the burden of being Minister for External Affairs. He then served as Chief Justice of the High Court for 17 years, a period exceeded by no other Chief Justice.

As a politician he had, like his companion on the High Court from 1975, Justice Murphy, former Labor Attorney-General, three main interests, and they were legal interests – altering the divorce laws, introducing effective trade practices laws, and increasing the number of federal courts (for they were both concerned to reduce the heavy burden on the High Court of single justice work). He achieved this glittering career by talent alone, without enjoying the advantages of inherited wealth, or a lofty background, or high status or rank, or family connection.

… the Sir Garfield Barwick Address stands in a long tradition of the common law. Those in that tradition find great interest in the careers of advocate-politicians, whether on the conservative or the progressive side of politics. The greatest representative of that category in the United States, leaving aside Abraham Lincoln himself, may be John W Davis, who was the unsuccessful Democratic candidate for the Presidency in 1924, and who for a long time held the record for appearances before the Supreme Court of the United States. A later example on the left is Robert Jackson, Chief Prosecutor at Nuremberg and later Chief Justice [sic] of the Supreme Court of the United States. On the conservative side there was President (later Chief Justice) Taft. Two 19th century English examples can be found in the careers of Hugh Cairns (Conservative) and Roundell Palmer, later Lord Selborne (Liberal).

In the early 20th century among Liberals there were Asquith and Haldane (who served twice as Lord Chancellor, one in a Liberal Cabinet and later in a Labour Cabinet). In Labour ranks there was also Patrick Hastings. In Conservative ranks there was F E Smith and, in later times, there were the Hoggs (father and son). Over the last decades of the Indian Empire there were Motilal Nehru, Mohammed Ali Jinnah and indeed Mahatma Gandhi. In Australia, on the right, apart from Barwick, there were Samuel Griffith, Edmund Barton, J G Latham, R G Menzies, Nigel Bowen and two of the earlier speakers at the Barwick Address. On the left there were Dr H V Evatt, Lionel Murphy, N K Wran and Gough Whitlam. In another but related category is a figure like Sir Maurice Byers – not a politician, but prominent at both the private bar and in public life as Solicitor-General.

At least in Australia, there has been a tendency for the memory of some of these persons to be kept green by addresses and foundations. This tendency forms part of a broader tendency in relation to politicians. Thus there are addresses connected with Alfred Deakin, Earle Page and Neville Wran. There are institutions connected with the names of Menzies and Evatt. There is a learned society which honours Sir Samuel Griffith. There is a lecture series named after Maurice Byers.

While addresses about these people are generally laudatory, they need not be so. And those who are interested in the addresses are not confined to those who share the particular political thinking of either the persons honoured or those who honour them. The partisanship with which distinguished politicians, including lawyer-politicians, were viewed in their lifetimes tends to fade away as new generations develop interest in their forebears.

While Sir Garfield Barwick is far from universally admired, even his enemies admit that his career was one of great achievement, for good or ill. He wrote a good autobiography. He was the subject of a very good biography by a person not associated with the political right. At least in his generation he was found to be endlessly fascinating.

The topic I selected was: ‘The Judicial Stature of Chief Justice Barwick Viewed in a Modern Perspective’. It was intended to provide a jumping off point for analysis of the general nature of the High Court and its methods of operation under him, to consider certain legal doctrines then regarded as the law which have now fallen from favour, to mention other principles that have survived and been developed, and to describe various skills and techniques which the Chief Justice personally and the other High Court Judges employed during his tenure of office.

The address would have drawn attention to the fact that institutional conditions in his day on the High Court were very different from now. For example, the Court’s burdens were greater because appeals as of right lay where as little as $20,000 was at stake, with the result that many personal injury appeals were disposed of by skilful ex tempore judgments delivered by three-judge panels. To compare Sir Garfield’s judicial work with that of later members of the High Court operating under different institutional conditions would be a fascinating enterprise, at least to lawyers. The Address would have discussed the great changes in the construction of the Constitution since his day. One example would have been s 92. Another would have been the massive restrictions on the executive power of the Commonwealth introduced since his day by Pape’s case and the two Williams cases. There are obviously others.

The Address would have discussed the abandonment by later courts of his taxpayer friendly approach in tax cases. It would have examined his combative role in argument in court, his relations with his judicial colleagues and his techniques compared with theirs – for their identity, and therefore their styles, changed quite a lot and quite frequently over the 17 years. It would have considered Sir Garfield’s long and intensive experience as a trial lawyer and how that was utilised in his judicial work, for example the role of appellate courts in relation to factual questions.

It would have considered how far he could be seen as an example of A W B Simpson’s thesis that, from the Middle Ages, on the common law has not been made by the judges unilaterally, but by the pressures of an ethos shared by a lawyerly caste – not only judges but barristers and others involved in litigation – a tightly organised caste characterised by common systems of education, apprenticeship and styles of argument tending to produce cohesion of thought. In short, even if the Address would not have aspired to original scholarship, it would have endeavoured to appeal to some points of possible curiosity amongst the audience.

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