SIR HARRY GIBBS - WITHOUT FEAR NOR FAVOUR
BY JOAN PRIEST

EXTRACTS:

Chapter 1: The young Gibbs

In January 1981, Sir Harry Gibbs had been a member of the High Court of Australia for 11 years. He was in Perth attending a Judges' Conference. Gibbs and his wife Muriel were at the breakfast table of the Parmelia Hotel with Queensland Judge, later Chief Justice, Sir Walter Campbell, and his wife Georgina, when Gibbs was called to the phone. The Attorney-General, Senator Durack, informed Sir Harry that he had just been appointed Chief Justice of Australia. Elated, Gibbs returned to the table. It was a moment of tremendous gratification for the Queensland quartet. They toasted the new Chief Justice with their breakfast coffee and the two men left for the Conference.

Just over 50 years before, in 1929, Brisbane was celebrating the completion of its elegant neo-classical City Hall and the sculptor, Daphne Mayo, was carving her procession of historical figures above the graceful columns of its portico. Firty-four kilometres away, the neighbouring city of Ipswich, which had nurtured Australia's first Chief Justice, Sir Samuel Griffith, saw its eighth Chief Justice, Harry Talbot Gibbs, about to turn 12 years of age.

He could be found, most lunch hours, at the Central State School propped against a gnarled Moreton Bay fig. Under this very tree the famous English explorer and King's Botanist, Allan Cunningham, had paused on his way to the Darling Downs to boil a billy a century before. There Gibbs discussed science fiction (especially the works of H G Wells) with his friend, future physician, Harry Wilson. The historic tree, one of several in the district credited as a Cunningham stopping place, pleased their imagination.

Young Harry Talbot Gibbs, a gangling, bespectacled, rather introverted youth, was known to family and friends as Bill. Harry Snr, his father, a popular Ipswich solicitor, had coined the nickname to distinguish the infant from himself. On returning from overseas service in World War I, and having not yet seen his firstborn, Gunner Harry Gibbs lent over the infant's cot in exuberant mood and exclaimed, "Hello Billo." Harry Jnr became Bill to his family.

...

A liking for words and precocity in literary tastes was the precursor of the career ahead for the boy. Within a year or two, only 15 years old, the pair were reading the American avant-garde, "abstract" poet and writer Gertrude Stein. They had no reverence for her influential, controversial stream-of-consciousness and highly individual technique of writing. Gibbs, predating the famous Angry Penguin/Ern Malley Australian literary hoax, sent Stein a concoction of non-sequitur gibberish, put together from jumbled remarks made by others. He called it Ditto:

"I wonder which Is mad, ah. What Is it note. The Shakespearian prose i..... Precisely --quite like a Sheep-- hark I. Am referring To you Not. Hark. Hark. Hark. Not...."

Gibbs asked for an opinion on it, saying that it was the writing of a gifted friend. He received a serious reply from Stein's famous secretary and companion, Alice B Toklas. "Your friend has some interesting ideas," she wrote, "but he should speak more of what he sees and less of what he intends."

...

Chapter 3: The barrister

Gibbs made a slow start as a barrister. These were the vulnerable early days of his career. Briefs did not come flooding in to him. With his round dark rimmed glasses and thin face, his appearance was deceptively immature for his 29 years. He shared rooms at the first of the three "generations" of Inns of Court, built for barristers' chambers, this one in Adelaide Street. After his prolonged absence in the services, he had to pick up the threads and contacts of civilian life again.

In his first appearance at the Magistrates Court, he was opposed by an experienced solicitor, Ron Lowe, who was well used to the rough and ready atmosphere which prevailed. Magistrates were not often legally qualified in those days. "I knew them, their methods, and their various strengths and weaknesses," Lowe recalled. "This was an assault case and they were interested only in the practical evidence. Gibbs quoted a number of learned authorities. The magistrate was just unused to that sort of intellectual approach." Lowe won the case, putting it down to a triumph of local knowledge and know-how over erudition and inexperience.

Gibbs' casual meeting in town with Gerald Patterson, by this time a junior partner in the firm O'Mara & Patterson, Solicitors, renewed their friendship. Patterson promised to send briefs to Gibbs. Soon the slender, rather shy barrister began to impress. "Bill didn't inspire much confidence just to look at in those days," Patterson recalled, "but when he opened his mouth in court, then the whole situation changed. The words poured out - and he was just so good. In the Magistrates' Court, where I'd normally send a clerk, I used to go myself just for the pleasure of listening to him." Gibbs' lists of legal authorities had obviously been trimmed.

...

Williams tried hard, but unsuccessfully, to get Gibbs to apply for silk during these years. Williams also praised Gibbs for his nisi prius work (trial of fact before a jury, instead of judge(s) alone):

People are inclined to say that Gibbs was only an Appellate Court lawyer - he was, he was the best. In my opinion he was better than Barwick because he had a better manner with judges. He could get his point across without being too pushy. And he didn't waste time. But you can't wipe Gibbs off as a nisi prius. Forget all the rhetoric, but in presenting the case he was terrific. As a criminal court lawyer, on factual matters I don't think he'd ever forget, and facts are the best arguments of all. Gibbs always got his facts out. Got his facts right. Got the relevant facts right. Made the point with his facts. He was a good nisi prius - a very, very good one.

...

Long serving Court Registrar, Frank Jones, a lively well-liked personality whose duties include the timing and assembling of sittings, remembers the mannerisms of the justices as they filed in and out of the court. Sir Harry Gibbs was "distinctive, always walked with his shoulders back", Sir Anthony Mason "with his head forward", Sir Ninian Stephen "looked about with a smile", while Lionel Murphy could be seen "hitching his gown" which invariably seemed to have "gone askew". As a preliminary to filing in, Murphy was usually the one to provide a light-hearted moment or two and had long since, in keeping with his Irish nature, accepted, indeed revelled in his role as dissenter. Murphy, a gregarious man, got along well with all his colleagues.

The Justices' wives necessarily attended many functions. Muriel Gibbs' friendship over the years with Patricia Mason and Valery Stephen had made this legal round companionable. They found Ingrid Murphy good company - "younger than us, and so pretty and stylish," said Muriel Gibbs. They all bore the extra strain of juggling family responsibilities with the constant commuting the centralisation of the Court in Canberra entailed.

...

Try as the Chief Justice and his colleagues might to minimise the damage to the Court, it could not escape controversy, with headlines such as "Murphy's plan rejected by brother judges", and a few weeks later, "Murphy: 18 months but will not resign" and "Words that made ALP hearts sink". Justice Cantor sentenced Murphy to 18 months imprisonment, but released him on bail pending appeals. In November, the NSW Court of Criminal Appeal, with a bench of five, found that there was evidence available for a jury to convict. However, they quashed the conviction, partly on the basis that Cantor had misdirected the jury by saying that the overwhelming evidence of Murphy's good character could not be used in considering his credibility. A new trial was ordered. Premier Wran lashed out again at Director of Public Prosecutions Temby. The press coverage generally was so omnivorous that there was some talk of law reform to curb it.

Gibbs felt the strain. Muriel Gibbs tried to lighten the load. "I became notorious on the airlines for my meat basket," she recalled. She had standing arrangements with Killara and Canberra butchers, who were happy to supply her at all hours to help smooth "the Judge's path" ... The companionship of Muriel Gibbs' circle of "legal" friends made life enjoyable, but the commuting and the unremitting schedule of conferences and dinners left her exhausted. It did not occur to her that there might be an underlying medical reason for this.

...

Prime Minister Robert Hawke and Opposition Leader Dr John Hewson attended the final day to discuss the question of an Australian republic. With the United Kingdom committed to becoming a member of the European Community, Hawke saw an Australian republic as inevitable. Also discussed at the conference was a guarantee of basic rights, whether the powers of all governments at all levels could be safeguarded and the possibility of a Bill of Rights. A possible mechanism to address the rights of the Aborigines as the indigenous people of the country, the Prime Minister hailed as "far sighted and imaginative". Hewson was committed to reform and change within Australia, saying "constitutional change would support economic change". He suggested that a four year term for the Commonwealth Parliament be put to a referendum. The Conference appointed Sir Ninian Stephen, the retired Governor-General, to chair the Constitution Centenary Foundation to examine the above questions. The Commonwealth Government injected a healthy allocation of funds, later boosted by State Government and private enterprise funding. The purpose of the Foundation was to encourage informed public debate and stir interest in the Constitution. Padraic McGuinness wrote that there was a "strong...undercurrent of patriotic feeling in the conference. Everybody cared deeply about our country and its future."

Gibbs watched these developments with great interest but also concern. He is a constitutional monarchist. He does not believe that a republic would be beneficial, or that it is inevitable in Australia. He is also opposed to a Bill of Rights, considering that basic human rights are upheld by Australia's present parliamentary and judicial systems. Fortunately, the Hawke government seemed prepared to hasten slowly. In regard to the protection of governments at all levels, a matter on which Gibbs felt strongly, the Prime Minister later in the year mooted a more equitable distribution of the tax revenue between the Commonwealth and the States, which he referred to as "the new federalism", that is, a modifying of central power and dominance.

This was very soon to be dropped. After machinations which were documented in the ABC's award-winning television program, Labor in Power, Hawke was followed as Prime Minister by his former Treasurer, Paul Keating, on 19 December 1991. Attitudes were now to be very different. The new Prime Minister was not only strongly centralist but keen for Australia to become a republic. He lent his support to the newly-formed Australian Republican Movement, launched by the acclaimed author, Thomas Keneally, earlier in the year.

During the first half of 1992, Gibbs and others of like mind, saw the need for a society to give some balance to the debate. They formed Leadership Beyond Politics - Australians for Constitutional Monarchy, which had a widely diverse council membership, including Chancellor of Sydney University, Dame Leonie Kramer, president of the NSW Court of Appeal, Michael Kirby, former federal Liberal Party president, Sir John Atwill, former Labor Lord Mayor of Sydney, Doug Sutherland, and the president of the Australia-Britain Society (NSW), Lloyd Waddy QC. Gibbs regretted that the debate on changing the Constitution had been dominated by republicans. "I think it would have been better if there was no debate at all," he said. "But now the debate has been started, it is important it is balanced." He still feels that a majority of Australians favour the retention of the constitutional monarchy. Solid support emerged. Prominent Aborigine and former Liberal senator Mr Neville Bonner believed there were many Aborigines who supported the monarchy. "The country was taken over by the British, but if it had not been it would have been taken over by some other country; we could not have defended it," he commented. "As far as I am concerned we have done better under the present system than other indigenous people in other countries, although that is not to say everything is perfect. There is still room for change."

Later that year, the High Court delivered its highly controversial decision in Mabo v The State of Queensland (No 2) .recognising Native Title to Torres Strait Islanders (specifically, to Murray Islanders) and holding that British colonisation had not, ipso facto, erased Aborigines' rights relating to land. To the High Court Justices, this threw open the whole question of the extent of native title on the Australian mainland. The ramifications of the Mabo ruling are still being felt. It led directly, 18 months later, to Commonwealth land rights legislation.

The High Court was attacked for exceeding its role as interpreter of the common law and, in effect, legislating. It had, indeed, taken an attitude such as it had with the Tasmanian Dam case in 1983, when it broadened the scope of the External Affairs Power, using an International Treaty to which the current federal government had been a party, to rule on that intrinsically domestic matter. In Mabo, Sir Daryl Dawson in his dissenting judgment, concluded with the words: "If traditional land rights, or rights akin to them, are to be afforded to the inhabitants of the Murray Islands, the responsibility, both legal and moral, lies with the legislature and not the courts." Gibbs shared this belief.

He now joined a group who wished to preserve the Constitution as it stands and to provide a forum for such views. The Samuel Griffith Society was formed. Its members pledged to defend the Constitution and to oppose the further centralisation of power in Canberra. The Society's inaugural meeting was held in Melbourne in late July 1992. Gibbs, its first Chairman, wrote the major paper. He had to fly to London, however, and it was delivered on his behalf by Queensland National Party identity, David Russell QC. Among those attending were Melbourne QC, SEK Hulme, former chairman of MIM, Sir Bruce Watson, and Peter Connolly. Brisbane's Sunday Mail felt that the Society's objectives would "strike a chord with state leaders, businesses and farmers", who were concerned with "Canberra's ever-increasing grab for power and...the erosion of the role of Parliament". Other relevant matters mentioned were the reviewing of financial arrangements between the Commonwealth and the States in favour of the States; reducing duplication by eliminating Commonwealth influence in matters that should be the primary concern of the States (eg, education, health), and safeguarding judicial independence. Sir Ninian Stephen, speaking for the Centenary Foundation, welcomed this alternative organisation. So did McGuinness in The Australian. The Chief Justice, Sir Anthony Mason, commented, "The more informed debate about the Constitution there is the better for all concerned - in particular, the community."...

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