I am speaking to you
from my chambers in the High Court of Australia in Canberra. It
is a beautiful autumn day, and to my left is the new Parliament
House and the old Parliament House. In front of me are the Brindabellas.
I feel greatly privileged to be in this building, which is the
ultimate place where we uphold the rule of law in this country.
Here we maintain constitutionalism. We enforce the valid laws
as made in the Parliaments. We safeguard the principles of fundamental
human rights which are enshrined in our law.
I am here to celebrate
with you the life of Sir Harry Gibbs, a great Chief Justice of
this Court, a great jurist, a fine Australian, a believer in our
constitutional traditions and a personal friend. I want to speak
of my friendship with Sir Harry Gibbs. I must do so in this electronic
form because I cannot be with you for this conference. We have
found in the High Court, in the special leave applications which
come to us by videolink, that when people speak to us in the disembodied
form of telecommunications, they tend to be briefer. So it may
be that my remarks to you about Sir Harry will be briefer than
had I been there in your midst with my friend and colleague Dyson
Heydon, and with other friends and colleagues pondering on the
Constitution and reflecting on the contribution that Sir Harry
Gibbs made to the work of The Samuel Griffith Society and, through
the Society, to the life of our nation.
I
want first of all to read to you my tribute to Sir Harry Gibbs.
Then I want to reflect, at the end, upon his special contributions
to the cause of liberal democracy, which is the cause that is
enshrined in our Constitution and in the values that we cherish.
We may have differences. We do have differences. Differences are
healthy in a democracy. They represent the very essence of the
competition for ideas that our Constitution enshrines and protects.
But above and beyond the differences we have friendships and mutual
respect and learning from each other. It is about friendship that
I want to begin and to speak of my friendship with Bill Gibbs.
It is a friendship which I still feel most tangibly and especially
here, in this place, where he worked for so many years as a Justice
and as Chief Justice, helping to shape the values of the nation
as a land that lives under law.
At
a time when love, sex and exclusive family relations are given
so much emphasis, friendship, according to Andrew Sullivan, has
been under-valued.1 He quotes Cicero in De Amicitia as saying:
"And this is what
we mean by friends: even when they are absent, they are with us;
even when they lack some things, they have an abundance of others;
even when they are weak, they are strong; and, harder still to
say, even when they are dead, they are still alive".
This
is how I feel about my friend, Bill Gibbs. In many ways, we were
opposites. His judicial and social philosophy was very different
from my own. His life's experience was different. He looked at
the world through different spectacles. We would often agree to
disagree over this or that. But now that he is dead, I think back
on the friendship that we shared in various activities where our
lives were thrown together.
For a time, we both served in important federal
positions---he as a Justice of the High Court of Australia and
I, the newly appointed Chairman of the freshly minted Australian
Law Reform Commission. Then we worked together in the committee
of the Australian Academy of Forensic Sciences, he as President
before I too took up that position. Over twenty years we attended
together the meetings and ceremonies of the Australian members
of the Order of St Michael and St George. He held the top office
in that Order as a Knight Grand Cross (GCMG). I was Malcolm Fraser's
last appointment to it in 1983---the last CMG in the Australian
list. Then there was the time we worked together in Australians
for Constitutional Monarchy to preserve the system of government
that everyone else scorned---saying it was doomed to popular rejection.
In
most recent years, we would meet and exchange thoughts from the
perspective of service on the nation's highest court. We skirted
around points of difference but found many of agreement.
Now,
in the aftermath of his passing, I think back on the life of this
friend. What does it matter that we disagreed, even over things
that seemed important, perhaps fundamental? We both knew that
we lived together in a society, and in institutions, that afforded
many common links. Our friendship taught that you do not have
to enjoy total agreement to be friends. Just enough common ground,
of things shared and agreed, with the occasional difference to
provide a frisson of excitement that made the agreements more
pleasurable and surprising.
My
friendship for Bill Gibbs was not as intense as that for Lionel
Murphy. But it was true. And it was respectful. For there is no
doubt that, in our Commonwealth, he was a figure of probity and
great achievement.
Sir
Harry Gibbs, one-time Chief Justice of Australia and Justice of
the High Court of Australia, died in Sydney on 25 June, 2005.
Typically, he forbade a State funeral. He was an intensely private
and modest man. However, following his death, a State Memorial
Service was held in St Stephen's Church, Sydney on 11 July, 2005.
The large and varied congregation heard moving tributes about
the high regard and affection that Sir Harry Gibbs had earned
by his long life of public service and in civil society in Australia.
Born
in 1917, Harry Talbot Gibbs was the elder son of a solicitor who
practised in Ipswich, Queensland. Throughout his life he was known
to his friends as Bill; but his formidable mien confined this
name to those whom he admitted to friendship. He excelled at school
and in his studies at the University of Queensland, where he graduated
in Arts and Law with double First Class Honours.
He
was admitted to the Queensland Bar just before the beginning of
the Second World War. He saw service in the AIF in New Guinea,
was promoted and mentioned in despatches. On demobilisation, he
married Muriel Dunn, whom he had met at Law School. It was a happy
marriage, blessed with three daughters and a son. The oldest daughter,
Margaret, spoke for the family at the Memorial Service. Hers was
a powerful speech about a loving father, husband and grandfather
and a man who was always true to his word.
Bill
Gibbs' career at the Queensland Bar flourished. He took silk in
1957. In 1961, at the then young age of 44, he was appointed a
judge of the Supreme Court of Queensland. He was the first law
graduate from the University of Queensland to join that Bench.
He quickly demonstrated his skill and authority, performing trial
and appellate work with equal ability in every field of law. At
one stage it seemed that he would be appointed Chief Justice of
Queensland.
However,
as these things happen, he was passed over and soon, in 1967,
he moved to the federal judiciary. For a short time he became
the Federal Judge in Bankruptcy, based in Sydney. But in 1970
he was elevated to the High Court of Australia. He served on that
Court, including for six years as Chief Justice, until his retirement
in 1987. His judicial writings continue to be read in contemporary
cases for their broad knowledge of the law and simplicity of expression.
They were read and analysed repeatedly in the recent hearing that
considered the States' challenge to the constitutional validity
of the new industrial relations legislation.2
The
time of Mr Justice Gibbs on the High Court was one of turbulence
and challenge. Controversy surrounded Chief Justice Barwick's
advice to the Governor-General (Sir John Kerr) that was followed
by the dismissal of Prime Minister Whitlam and his government.
Equal, or even greater, turbulence surrounded accusations against,
and the trials of, Lionel Murphy, then a judicial colleague on
the High Court. The latter events happened substantially in the
period that Sir Harry was Chief Justice. There were many awkward
moments. His well known sense of calm was often called upon to
help steer the nation's highest court through those difficult
years.
Sir
Harry Gibbs' association with the Australian Academy of Forensic
Sciences predated his retirement from judicial office. He was
always intellectually lively. He loved a good debate and the clash
of ideas---not least on the interface of science, medicine and
the law. He came to Academy functions regularly, whilst serving
as a Justice of the High Court. He was elected (if that is a word
appropriate to the period in the life of the Academy when Dr Oscar
Schmalzbach was Secretary-General) the President of the Academy
between 1980 and 1982. Although he was elevated to Chief Justice
in the midst of this period, he never failed to attend to the
Academy's affairs, to participate in scientific sessions and to
speak gracefully and generously at the dinners that followed.
Sir
Harry Gibbs sometimes appeared bemused by the occasionally unconventional
conduct of Dr Schmalzbach---a man as brilliant as he was irascible.
But Sir Harry was unfailingly gracious to the members of the Academy,
their spouses, partners and friends. In such an environment he
was always quite formal. He knew that a code of public behaviour
was expected of judges. He was old-fashioned but never quaint.
In a gentle way, he could join in the merriment of the social
events of the Academy. But never did he drop his guard. We always
knew that we were in the presence of a serious judge and considerable
officer of state. By serving as President of the Academy, he maintained,
and enhanced, its standing.
Much
is made of Sir Harry Gibbs' conservatism as a person, lawyer and
judge. It is true that he was defensive of legal precedent. In
the classification of lawyers according to Lord Denning's labels
as "timorous souls" and "bold spirits",3
Sir Harry Gibbs would have proudly rejected the category of "bold
spirit". In his view of the world, it was for Parliament,
and elected politicians, to be bold. Judges had a more modest
function. He adhered to this view, despite much evidence of parliamentary
neglect of large areas of the law and of oversight of human rights
infractions. In our Commonwealth, there is unquestioned room for
diversity in judicial philosophy. As David Jackson, QC remarked
at his Memorial Service, with the recent ascendancy of more conservative
judicial attitudes, some of Sir Harry Gibbs' constitutional views
may return to general acceptance.
He
was not opposed to law reform. On my appointment in 1975 as the
first Chairman of the Australian Law Reform Commission, he invited
me to lunch at the Australian Club. He spoke energetically about
the need for reform of criminal law and procedure. Deriving as
he did from Queensland, he was a strong proponent of Sir Samuel
Griffith's Criminal Code of 1897. He was also a supporter of institutional
law reform. Indeed, he was a strong supporter of Australia's institutions
and was opposed to radical change of them.
Because
of my treasured friendship with Lionel Murphy, I viewed from afar
the painful period that he and Lionel Murphy shared in the High
Court. When, in recent years, the present High Court Justices
entertained Sir Harry Gibbs at a dinner to celebrate his 80th
birthday, he spoke of that period. He emphasised (as those who
were in the Court in those days have confirmed) that through all
the upset and difficulty of those events, the principle of civility
in relationships was steadfastly maintained. With Bill Gibbs,
no other conduct was imaginable.
He
had his own viewpoint. Sometimes it differed from that of Lionel
Murphy who, I suspect, felt that he received less support from
the Court than was the due of a colleague. In a small collegiate
institution, there is a need for civility. When Lionel Murphy
was dying, it was Chief Justice Gibbs who pursued the other Justices
to ensure that they got their opinions written in time so that
Justice Murphy's last judgments could be published. In the event,
they were handed down just hours before Lionel Murphy's death.4
In
the 1990s, I came to know Sir Harry Gibbs quite closely in Australians
for Constitutional Monarchy (ACM). This was a body that Lloyd
Waddy and I, with a few others, established to respond to the
proposal initiated by Prime Minister Keating that Australia should
move to become a republic.5 We felt the need for other
voices to be raised in the deafening silence of doubt and opposition.
Bill Gibbs became the Chairman of the National Council of ACM.
We had many meetings. Suddenly we found ourselves in close and
unexpected alliance. For him, this was not only a matter of personal
loyalty to the Queen but also a deep conviction about the merits
of constitutional monarchy as a temperate system of government
that worked well. At the Academy's dinners in the Sebel Townhouse,
Sydney before its demolition, portraits of the Queen and Prince
Philip looked down benignly on all of our activities. For Gibbs
these symbols were not irrelevant. They gave stability and continuity
to Australian public life.
He
did not agree with all of my works as law reformer and judge.
He probably disagreed with some of my activities as President
of the Academy. I did not agree with all his social views or judicial
opinions. But in ACM we worked together with a happy spirit in
a common cause. He was to prove a formidable champion of the Australian
Constitution and its fundamental system of government. In the
end, ACM, unanimously ridiculed by the media and mocked by learned
academics and feisty politicians, succeeded on referendum night.
The Australian people in every State voted against the republic
referendum. In part, this was because of the insistence, in which
Bill Gibbs and I concurred, that ACM should be open to people
of every race, creed, political persuasion and manner of life.
In
the last five years of his life, Bill Gibbs was obliged to undertake
dialysis for the failure of his kidneys; but he was never daunted
and he never complained. With Bill Gibbs, in the law, in the Academy,
in ACM and in life, what you saw was what you got. He was formal
and courtly; but decent and unpretentious. He was a true Australian
of the Old School. His broad Ipswich accent never left him. He
was never false. He was honoured many times in his lifetime. To
the end he was loyal and devoted to his wife Muriel, who was wheelchair
bound in recent years. He insisted, unaided, on lifting her into
transport and maintaining her involvement in his life and activities.
Those of us who remember the times we spent in his company will
always carry a strong sense of respect and affection for Bill
Gibbs---a most notable leader and example in the law and in Australian
civic life.
Six
weeks before his death, Bill Gibbs telephoned me. He wanted to
arrange a date, when I would be in Sydney, to convene the annual
luncheon of the members of the Order of St Michael and St George.
We fixed upon a day in August, 2005. The usual venue, the Australian
Club in Sydney, was settled. We chatted about the High Court.
I asked after his health. "Not so good", he said. And
that was it. He did not belabour his predicament.
In
the old days of Garfield Barwick, Bill McMahon, John Gorton, Roden
Cutler, VC and others of the great and good, the functions of
the Order had been large and grand affairs. But with the passing
of the years, most of the Knights Grand Cross, many of the Knights
Companions and a good number of the CMGs too had died. We were
now reduced to a very small band. Bill Gibbs was the doyen of
us all. He made me feel welcome and significant. That was a gift
he had with many.
Now
I have attended the luncheon. The group of us is diminished in
number. But we are especially diminished by the passing of this
fine spirit.
Andrew
Sullivan finishes his essay on friendship with a quotation from
Augustine, for whom the end of friendship was the beginning of
faith:
"For wherever
the human soul turns itself, other than to you [O God], it is
fixed in sorrows, even if it is fixed upon beautiful things external
to you and external to itself, which would nevertheless be nothing
if they did not have their being from you. Things rise and set:
in their emerging they begin as it were to be, and grow to perfection;
having reached perfection, they grow old and die. Not everything
grows old, but everything dies. But when things rise and emerge
into existence, the faster they grow to be, the quicker they rush
towards non-being".
Bill
Gibbs' mortal person no longer is. But in the law books, his words
and ideas continue to guide, to encourage and to warn. And amongst
his friends, his memory will last as long as they do.
When
I looked through the most recent volume of the record of The Samuel
Griffith Society,6 it contains a worthy tribute to
Sir Harry Gibbs written by John Stone.7 The tribute
is written in a heartfelt way. It pays sincere respects to his
contributions and his vital work for this Society. The book also
contains, in an Appendix, a number of Sir Harry Gibbs' Australia
Day messages.8 I looked through those Australia Day
messages for the wisdom that he shared with us over the decade
before his death.
Every
year these messages were truly engaged with contemporary events,
but also with the fundamentals of our Constitution and with our
institutions and the way in which our institutions respond to
the dilemmas and puzzles of the time.
As
with all of us, no doubt in your own cases, I did not always agree
with every statement that he made. That is the nature of freedom.
That is also the nature of our intellectual curiosity, and our
differences of outlook and our different experiences in life,
that give us a different slant on particular issues and lead us
to see issues through different eyes and in a different light.
Yet I was most interested in the fact that Bill Gibbs emerges
from his Australia Day messages in many ways as a surprisingly
old fashioned liberal. In the media, that thirst for over-simplifications,
he was presented as an unreconstructed conservative. Yet if you
read the Australia Day messages, often he makes the point that
the true "conservative" will be defending the liberal
values that are inherent in our Constitution. These are the values
that the Constitution was established to protect and which, for
a large part, it has protected during the hundred years or more
of its existence.
For
instance, writing on the terrible events of the 11th of September,
2001, he recognised the need for effective responses to the threat
of terrorism.9 Yet he cautioned against the excesses
of security laws.10 He expressed the importance of
responding in a temperate way, consistent with our liberties.
He warned of the dangers that had come about through internment
in Australia during the First and Second World Wars.11
And he pointed to the Korematsu Case,12 and to the internment of the ethnic Japanese
in the United States during the Second World War, as the excesses
to which security can sometimes pass. On the issue of terrorism,
he expressed strong views about the dangers of Guantanamo Bay.
They were views that got even more strong as the years passed,
and as the need to maintain the rule of law, even in the time
of terror, became more clear.13
On
the issue of refugees, he acknowledged the right of every nation
to express its own migration policies. Yet he said that this has
to be done consistently with the International Convention on
Refugees.14 He questioned whether some aspects of our
recent response to the refugee problem were strictly consistent
with that Convention.
In
federal matters he was always, as you know, a strong proponent
of the federal/state balance and of the role of the States, even
though he acknowledged that sometimes in our federal history the
States have not always adhered to their own proper conception
of the States' role in our polity. He made a point that has been
reinforced many times in recent years by Professor Greg Craven
and by Professor Suri Ratnapala, both of whom have taken an active
part in the affairs of The Samuel Griffith Society.15
That in a sense, the federal/state balance and the role of the
States in a federation is in itself an important protection for
liberty. He made the point that federalism is a division of power.
By dividing great power, particularly in a time of technology
that concentrates great power, we help to ensure the defence of
our liberties.
These
were very important contributions to the thinking that is necessary
for the contemporary age. They show that, to the end, Bill Gibbs
was in tune with the issues of our time. His instruction in his
papers for The Samuel Griffith Society, and his instruction in
the law books and in the opinions in this Court in this place,
remain with us to guide us in the years ahead. I am here to celebrate
a great Australian, a fine judge, a devoted Chief Justice of the
nation, a human being of firmness and principle but with human
understanding. I am here to honour a friend who reached out, over
our sometimes differences, to find common ground as I often did
with Bill Gibbs, my friend.
* Parts of this address were earlier
published in Quadrant,
Vol 49(9), September, 2005, p.54.
1.
Love Undetectable (Vintage
Books, 1998).
2.
New South Wales & Ors v. The Commonwealth, HCA, decision reserved, 11 May, 2006.
3.
Candler v. Crane, Christmas & Co [1951] 2 KB 164 at 178. See M D Kirby, Lord
Denning: An Antipodean Appreciation [1986] Denning Law Journal, 103 at 108.
4.
See (1986) 160 CLR v.
5.
M D Kirby, The Australian Referendum on a Republic---Ten
Lessons (2000) 46 Australian
Journal of Politics and History,
510
at 521.
6.
Upholding the Australian Constitution, Proceedings of The Samuel Griffith Society, Volume 17
(2005).
7.
John Stone, Tribute to the late Sir Harry Gibbs, ibid., Appendix I, 351.
8.
Australia Day Messages 2001-2005, ibid., Appendix II, 363.
9.
H T Gibbs, Australia Day Message, 26 January, 2002, ibid., 369.
10.
Ibid., 372. See also H T
Gibbs, Australia Day Message, 26 January, 2003, ibid., 374 at 375.
11.
Ibid., 375. See also H T
Gibbs, Australia Day Message, 26 January, 2004, ibid., 381.
12.
323 US 214 (1944).
13.
H T Gibbs, Australia Day Message, 26 January, 2004,
loc. cit., 381.
14.
H T Gibbs, Australia Day Message, 26 January, 2002, 369 at 371.
15.
S Ratnapala, "Greg Craven, Conversations with the
Constitution",
(2005) 26 Adelaide Law Review 185.