Sir Harry Gibbs | |
|---|---|
| Chief Justice of Australia | |
| In office 12 February 1981 – 5 February 1987 | |
| Nominated by | Malcolm Fraser |
| Appointed by | Zelman Cowen |
| Preceded by | Sir Garfield Barwick |
| Succeeded by | Sir Anthony Mason |
| Justice of the High Court of Australia | |
| In office 4 August 1970 – 12 February 1981 | |
| Appointed by | John Gorton |
| Preceded by | Sir Frank Kitto |
| Succeeded by | Sir Gerard Brennan |
| Personal details | |
| Born | (1917-02-07)7 February 1917 Sydney, Australia |
| Died | 25 June 2005(2005-06-25) (aged 88) Sydney, Australia |
| Relations | Wylie Gibbs (brother)[1] |
| This article is part ofa series on |
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Sir Harry Talbot GibbsAC GCMG KBE PC QC (7 February 1917[2][3] – 25 June 2005) wasChief Justice of theHigh Court of Australia from 1981 to 1987 after serving as a member of the High Court between 1970 and 1981. He was known as one of Australia's leading federalist judges although he presided over the High Court when decisions such asKoowarta v Bjelke-Petersen in 1982 andCommonwealth v Tasmania expanded the powers of the Commonwealth at the expense of the states. Gibbs dissented from the majority verdict in both cases. On 3 August 2012, the Supreme Court of Queensland Library opened theSir Harry Gibbs Legal Heritage Centre. It is the only legal heritage museum of its kind in Queensland and features a permanent exhibition dedicated to the life and legacy of Sir Harry Gibbs.[4]
Harry Talbot Gibbs was educated at theIpswich Grammar School and later atEmmanuel College at theUniversity of Queensland, where he was President of theUniversity of Queensland Union. He graduated from the latter with a Bachelor of Arts with honours in 1937 and a Bachelor of Laws in 1939. The same year he was admitted to the bar, but his legal career was interrupted by World War II and he served in theAustralian Military Forces from 1942 to 1945 and in theSecond Australian Imperial Force in Papua New Guinea, attaining the rank ofCaptain. He married Muriel Dunn in 1944 and the couple had three daughters and a son (Barbara, Mary, Margaret and Harry). His younger brotherWylie Gibbs was a federal Liberal MP in the 1960s.
While stationed in Papua New Guinea, Gibbs developed an interest in its legal system and was awarded a Master of Laws based on his research. He returned to the practice of law following the war and was appointedQueen's Counsel in 1957, while also lecturing in law at the University of Queensland.
Gibbs served as a judge on theSupreme Court of Queensland from 8 June 1961 until 24 June 1967. He was the first law graduate of the University of Queensland to join that Court. In 1963, Gibbs was appointed Chair of the Supreme Court of Queensland Library Committee and held the position until 1967.[4]
In 1967 Gibbs was appointed to theFederal Court of Bankruptcy and theACT Supreme Court. He was appointed as a judge at a relatively early age of 44 due to his reputation at the bar. During his service, he was appointed as a Royal Commissioner in the National Hotel Royal Commission following allegations that the hotel was the centre of a network of vice including a call girl ring with support of senior members of the Queensland Police Force. Gibbs found that the allegations were not correct. Critics such asEvan Whitton andRichard Ackland claim that Gibbs inappropriately followed the hearsay rules, excluding a great deal of evidence despite the fact that Royal Commissioners are not bound to follow such rules. He also chaired a committee of inquiry into the expansion of the Australian sugar industry.
In 1970, Gibbs joined the High Court of Australia replacing SirFrank Kitto. During his early years on the Court, there was high turnover of judges, with SirVictor Windeyer retiring in 1972, SirWilliam Owen dying in 1972, SirCyril Walsh dying in 1973 and SirDouglas Menzies dying in 1974. As a result of this high turnover, Gibbs rapidly became second in seniority behind SirGarfield Barwick.
Gibbs' first significant case wasStrickland v Rocla Concrete Pipes Ltd in 1971,[5] a landmark trade practices case which significantly expanded the powers of the Commonwealth undersection 51(xx) of the Constitution, the corporations power. He was in the minority.
In theCurran case decided in 1974,[6] Gibbs was part of the majority ruling in favour of the legality of a tax minimisation scheme. As a result of the proliferation of similar schemes,John Howard as Treasurer introduced retrospective legislation which was subsequently passed by the parliament.
TheAAP Case in 1975,[7] examined the nature of the appropriations power insection 81 of the Constitution and the incidental power insection 51(xxxix) of the Constitution. TheAppropriation Act (Number 1) provided for certain sums to be appropriated to the Australian Assistance Plan to enable grants to be made to Regional Councils for Social Development. The Victorian Government disputed the powers of the Commonwealth to legislate for such purposes. In his dissenting judgement, Justice Gibbs held that the words of Section 61 "make it clear that the Executive cannot act in respect of a matter which falls entirely outside the legislative competence of the Commonwealth".
Gibbs was part of a 6:1 majority in theDOGS Case in 1981,[8] which found that the Commonwealth could provide financial assistance to non-Government schools.
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In 1981, Gibbs was appointed Chief Justice after the retirement of Sir Garfield Barwick. The first notable case to come before his court wasKoowarta v Bjelke-Petersen, decided in 1982. This case upheld theRacial Discrimination Act 1975 with a majority of the Court finding that theexternal affairs power allowed the Commonwealth to pass such legislation as a consequence of Australia's obligations under theConvention on the Elimination of All Forms of Racial Discrimination. Gibbs dissented, finding that the Commonwealth might have such powers only in relationships with other nations and only if the treaty arranged with other nations was "international in character".
The external affairs power was expanded further in the case ofCommonwealth v Tasmania in 1983 known as the Tasmanian Dams case. The High Court upheld theWorld Heritage Properties Conservation Act 1983 passed by the Commonwealth Parliament to stop theGovernment of Tasmania from building a dam on theFranklin River which had been nominated forWorld Heritage Site status. The majority of the court found that the external affairs power enabled the Commonwealth Parliament to pass such legislation under theConvention Concerning the Protection of the World Cultural and Natural Heritage. Gibbs again dissented, finding that the use of the external affairs power should be limited by the status of Australia as a federation and if the Commonwealth was granted too much power undersection 51 of the Australian Constitution, it would upset the "Federal balance".
The latter part of Gibbs' tenure as Chief Justice was dominated by allegations of impropriety againstLionel Murphy, a fellow justice of the High Court.The Age newspaper published transcriptions of conversations between Murphy and NSW solicitor Morgan Ryan, alleging an improper relationship between the two men in February 1984. Two Senate Committees were established to look into the matter along with the Stewart Royal Commission in NSW to look into the tapes. A lengthy court case ensued resulting in Murphy's acquittal.
When the Stewart Royal Commission published a secret volume of conversations between Murphy and Ryan, Gibbs insisted on reading the Royal Commission Report and advisedLionel Bowen, the Commonwealth Attorney-General, that some justices intended making public their reluctance to sit with Murphy in 1986.
Lionel Bowen set up a Parliamentary Commission of Inquiry consisting of three retired judges in 1986 to inquire into the claims. However, this commission was soon abandoned as Murphy advised that he had inoperable cancer. Against Gibbs' strong advice, Murphy sat for a week as a Justice before his death in 1986.
Gibbs left the High Court of Australia upon reaching the mandatory retirement age of 70. He was widely regarded as a healer after Sir Garfield Barwick's controversial stint as Chief Justice. He also had an international reputation, withLord Denning stating "I would rank him as one of the greatest of your chief justices, rivalling evenSir Owen Dixon."
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After his retirement from the High Court, Gibbs continued to serve in several important roles. In 1987 he was 'Judge-in-Residence' at theUniversity of Queensland. He was the Chairman of the Parliamentary Judges Commission in 1989 resulting from the removal of JusticeAngelo Vasta from the Queensland Supreme Court. He was Vice-President of theKiribati Court of Appeal between 1988 and 1999 and the Review of Commonwealth Criminal Law between 1987 and 1991. As well, he chaired the Inquiry into Community Needs and High Voltage Transmission Development Commission.
In the early 1990s Gibbs was intimately involved with the foundation ofAustralians for Constitutional Monarchy (ACM), an organisation whose aim is to defend Australia'sconstitutional monarchy. As a founder of the movement he was both a signatory of the ACM charter and a member of its Foundation Council. His beliefs about the role ofThe Crown in Australian society saw him campaign for the NO case in the 1999 constitutional referendum.
Gibbs' activism in this area was not limited to the ACM. In 1992 he accepted the role of President of theSamuel Griffith Society. Here he set the tone of the society when he presented a paper entitled "Re-Writing the Constitution".
Gibbs' death was announced only after his cremation had taken place, in Sydney on 28 June 2005. At his funeral the eulogy was delivered by his former Associate, David Jackson QC. He had, before his death, forbidden the convening of a state funeral in his honour.
Harry Gibbs was knighted as a Knight Commander of theOrder of the British Empire (KBE) on 22 September 1970.[9]
In 1972, he was made a Privy Counsellor and sat on theJudicial Committee of the Privy Council thirteen times.[10]
On 3 April 1981, he was made a Knight Grand Cross of theOrder of St Michael and St George (GCMG).[11]
In the Queen's Birthday Honours of 1987, he was appointed a Companion of theOrder of Australia (AC).[12]
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| Preceded by | Chief Justice of Australia 1981–1987 | Succeeded by |
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