Gerard Brennan

Sir Francis Gerard Brennan, AC, KBE, QC, (born 22 May 1928) is an Australian lawyer and jurist who served as the 10th Chief Justice of Australia, appointed by Prime Minister Paul Keating in 1995. Prime Minister Malcolm Fraser appointed Brennan to the Court in 1981. He has been described as the ideal judicial statesman. He is the father of prominent Jesuit priest and human rights lawyer, Frank Brennan.

Early life and education

Brennan was born in Rockhampton, Queensland, the grandson of an Irish immigrant, and the son of Frank Tenison Brennan (a Justice of the Supreme Court of Queensland) and Gertrude Marty Brennan. He grew up in what he later described as a ‘loving’ Catholic household, attending the Range Convent School, St Joseph’s Christian Brothers' College in Rockhampton, and Downlands College in Toowoomba. Brennan excelled at school, passing his exams so early that he was deemed too young to go to university (he was only 16 at the time). After waiting a year, Brennan enrolled in a combined degree, Bachelor of Arts (B.A.) and Bachelor of Laws (LL.B.) at the University of Queensland. While at university, Brennan was active in student politics and was elected President of the National Union of Students in 1949.

Legal career

Brennan began work as an associate to his father at the Supreme Court of Queensland. On his own admission, Brennan's first day in this position was not a resounding success. Misreading an indictment, he mistakenly accused the prosecutor ("a most upright man") of sexual assault. Fortunately, counsel for the accused leapt to his feet, announcing "Your Honour, I appear for My Learned Friend … We plead not guilty!"

After his father's death in 1949, he worked at the Australian National University and then as associate to Kenneth Townley, a newly appointed Justice of the Supreme Court of Queensland. Townley had recently been appointed to preside over the war crimes trials on Manus Island, New Guinea, and his work provided Brennan with an early insight into the complexities of international law.

Brennan was admitted to the Queensland Bar in 1951. His first reported case appears to have been a fairly humble matter involving letters of administration granted to a person outside the jurisdiction (Re McKee (1952)). Although modest, his early practice was diverse, consisting of matters ranging from committal proceedings to commercial disputes. In each of these matters, Brennan demonstrated his comprehensive knowledge of the law through his clear and lucid argument. His talent soon gained him respect, and he became one of the first Catholic barristers to cross the strong sectarian line that permeated the Brisbane Bar by receiving briefs from the Protestant end of town.

Brennan was appointed a Queen's Counsel in Queensland in 1965. He was later admitted in NSW, the Northern Territory, Papua and New Guinea, and Fiji. Notable cases in which he appeared included his 1969 representation of the Fijian Alliance Party in an arbitration matter before Lord Denning (concerning the Fijian sugar industry) and his 1972 prosecution in Rabaul of the murder of a District Commissioner. He was also one of the first advocates to argue a case for Aboriginal land rights, representing the Northern Land Council before the Woodward Royal Commission into Aboriginal Land Rights in the Northern Territory in 1974.

During his time at the Bar, Brennan played a leading role within the legal profession. He was elected President of the Bar Association of Queensland (1974–76), President of the Australian Bar Association (1975–76), and member of the Executive of the Law Council of Australia (1974–76). He also began to influence the development of Australian law through his position as a part-time member of the Australian Law Reform Commission (1975–77).

One of Brennan's greatest achievements was the contribution he made to the development of Australian administrative law. In 1976, the Fraser government appointed him as the first President of the Administrative Appeals Tribunal. The Tribunal occupied a novel position at the time, straddling the divide between executive and judicial power. As the first President of the new institution, Brennan was in a unique position, able to develop the tribunal along lines consistent with either an administrative or judicial model. Brennan consciously adopted a judicial model, and, through his strong leadership, guided the tribunal through the difficult period of its establishment and early development. This, together with his work as the first President of the newly created Administrative Review Council (whose role was to advise the government on matters relating to administrative law), is argued to have considerably strengthened the new administrative structures. In 1977, Brennan was appointed as one of the foundation judges of the new Federal Court of Australia, which absorbed the jurisdiction of the Australian Industrial Court.

In 1979, Brennan retired from his position as President of the Tribunal to concentrate full-time on his duties as a judge of the Federal Court, to which he had been one of the original appointees in 1977. However, Brennan's service as a full-time member of the Federal Court was short-lived.

On the High Court

In 1981, the Fraser government appointed him Justice of the High Court (filling the vacancy created when Barwick retired and Gibbs became Chief Justice). Brennan had moved to Canberra shortly after his appointment as President of the Tribunal and remained there until his retirement from the High Court.

The Gibbs Court

From his earliest days on the High Court, Brennan displayed characteristics that would stamp his judicial style for nearly two decades. Espousing a well-defined conception of a limited judicial role, Brennan strove for certainty in the exposition and application of legal principle. He was nevertheless willing to develop the law when he considered this to be necessary to achieve a just result consistent with the demands of modern society. As part of the majority in Koowarta's Case (1982) and the Tasmanian Dam Case (1983), he gave wide scope to the external affairs power. In Kioa v West (1985), he expounded the importance of natural justice to the exercise of administrative power while emphasising its fundamental difference from judicial power. In He Kaw Teh v The Queen (1985), he carefully distilled a mass of conflicting case law into clearly expressed presumptions concerning the mental element of statutory offences.

The Mason Court

Together with Mason and Deane, Brennan played a prominent role within the Mason Court. Yet his judicial method and his view of a limited role for the judiciary led him to frequent dissents. Unlike Mason and Deane, Brennan saw no place for social policy in the development of the law. He was prepared to embrace the notion of community values as a guide to judicial decision making, but only to a very limited extent. The fundamental difference between the role of the judiciary and the role of the parliament and the executive was to Brennan constantly to be borne in mind. Those values that could legitimately inform judicial decision making were confined to the ‘relatively permanent values of the Australian community’. They were not the ‘ephemeral opinions of the community’ as they may exist from time to time.

Nowhere is the contrast in style better illustrated than in Dietrich v The Queen (1992), where Brennan in dissent argued against the power of a court to stay a criminal prosecution where an accused was indigent. While openly favouring the reform of criminal procedure to confer an entitlement to legal aid, Brennan vehemently rejected the ability of the Court to produce such a result through ‘judicial legislation’. According to Brennan, the ‘responsibility for keeping the common law consonant with contemporary values’ did ‘not mean that the courts have a general power to mould society and its institutions according to judicial perceptions of what is conducive to the attainment of those values’.

For Brennan, judicial method began with a thorough understanding of the existing case law. His judgments uniformly displayed great industry and attention to history. From the existing case law, Brennan sought to discern underlying values and principles. Those values and principles were weighed against the enduring values and principles of the Australian legal system as a whole. They were then applied to refine and where necessary reformulate the specific legal rules. Brennan saw that the courts could in this way legitimately develop the law to keep pace with contemporary social and economic conditions. However, for Brennan, the courts had no role in rejecting and replacing legal rules in the pursuit of social or economic ends. Nor could they bring about a change in the law simply to achieve tidiness or conceptual purity. Overruling was properly confined to those rare cases where specific legal rules had proved to be unworkable, or where to continue to apply them would perpetuate injustice.

In the formulation of the legal rules themselves, Brennan abhorred indeterminacy. He attempted wherever possible to pronounce the law in precise and even syllogistic terms. He drew upon and preferred to maintain traditional legal categorisations. These traits were evident in Brennan's sustained opposition to the doctrine of proximity as formulated by Deane. In place of proximity, Brennan favoured an ‘incremental’ development of the law of negligence by analogy with existing categories of liability. Other striking examples of this approach were his insistence in dissent in Australian Safeway Stores v Zaluzna (1987) on preserving the separate categories of occupiers' liability for negligence, and in Burnie Port Authority v General Jones (1994) on preserving the rule in Rylands v Fletcher (1866 and 1868). In the same way, Brennan resisted the extension of discretionary judicial powers, believing that they ‘tended to create a government of men rather than a government of laws’, Gerard Brennan, Justice 1981–95; Chief Justice 1995–98. However, it was in constitutional law and administrative law that Brennan's considered and self-consciously restrain ed approach to the legitimate province of judicial decision making was most evident. In A-G (NSW) v Quin (1990), Brennan observed that the Court ‘needs to remember that the judicature is but one of the three co-ordinate branches of government and that the authority of the judicature is not derived from a superior capacity to balance the interests of the community against the interests of an individual’. He declared that the ‘duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power’. The ‘merits’ of an administrative decision were for the repository of power alone. In McGinty v WA (1996), Brennan led the Court in rejecting a constitutional implication of electoral equality. ‘Implications’, he said, ‘are not devised by the judiciary; they exist in the text or structure of the Constitution and are revealed or uncovered by judicial exegesis’. The consequence was that no implication could be drawn from the Constitution that was not ‘based on the actual terms of the Constitution or on its structure’.

To Brennan, the most important of the values and principles underlying the Australian legal system were the dignity of the individual and equality before the law. It was these that the institutional gulf separating the judiciary from the other branches of government was principally designed to protect. Indeed, Brennan saw the law as ‘most needed when it stands against popular attitudes sometimes engendered by those with power and when it protects the unpopular against the clamour of the multitude’. In Marion's Case (1992), he stated that ‘the law would fail in its function of protecting the weak’ if it were to accept a policy of permitting sterilisation of the intellectually disabled simply to avoid the imposition of burdens on others.

This overarching concern for the dignity of the individual and for equality before the law lay at the heart of the most significant of Brennan's judgments and also the most controversial. In Mabo v Queensland (No 2) (1992), in a judgment that commanded the assent of a majority of the Court, Brennan rejected the common law doctrine of terra nullius as offensive to ‘the values of justice and human rights (especially equality before the law) which are aspirations of the contemporary Australian legal system’. His careful formulation of a common law doctrine of native title involved tracing a path linking medieval land law with concepts of sovereignty that attended the age of European conquest. The resultant doctrine was deliberately and openly crafted to achieve a result that reversed a strongly perceived yet deep-rooted injustice within the Australian legal system without fracturing ‘the skeleton of principle that gives the body of our law its shape and internal consistency’.

The measure of Brennan's restraint as a Justice can be seen by contrasting the result in Mabo with his judgment in Wik Peoples v Queensland (1996), where he joined the minority in finding that pastoral leases extinguished native title. While acknowledging that the common law operated to produce a ‘significant moral shortcoming’, Brennan nonetheless considered that it was not open to him to alter the law. Rather, the shortcoming, he believed, should have been rectified by legislation.

Chief Justice

Following the retirement of Chief Justice Mason in 1995, Brennan was appointed Chief Justice by the Keating government. At the ceremonial sitting of the High Court on 21 April 1995, following his swearing in, Brennan described the oaths of allegiance and office, which he had just taken, as the making of two solemn promises for the performance of which he would be responsible to the Court, to Australia, and to his Creator, and then he said:

"The first promise is a commitment of loyalty to Her Majesty the Queen, her heirs and successors according to law. It is a commitment to the head of State under the Constitution. It is from the Constitution that the Oath of Allegiance, which has its origins in feudal England, takes its significance in the present day. As the Constitution can now be abrogated or amended only by the Australian people in whom, therefore, the ultimate sovereignty of the nation resides, the Oath of Allegiance and the undertaking to serve the head of State as Chief Justice are a promise of fidelity and service to the Australian people. The duties which the oath imposes sit lightly on a citizen of the nation which the Constitution summoned into being and which it sustains. Allegiance to a young, free and confident nation, governed by the rule of law, is not a burden but a privilege."(Spoken at a ceremonial sitting of the High Court on 21 April 1995)

Brennan's appointment was well received by the legal profession, and it was widely expected that under Brennan's leadership, the Court would consolidate rather than further develop the various directions that it had undertaken under the leadership of Mason. These predictions proved well-founded—as in Lange v ABC (1997), where the Court unanimously accepted Brennan's more limited formulation of the implied freedom of political communication ( (1992); Implied constitutional rights).

Consistent with his strong belief in a limited judicial role, Chief Justice Brennan made few public statements other than on formal legal occasions. (Brennan's executive associate once joked that his standard reply to journalists was: ‘No comment … and that's off the record’.) This was despite the sustained criticism from politicians and the media that attended the Court in the aftermath of Mabo. Brennan saw it as incumbent on the Commonwealth Attorney-General to defend the Court from this criticism—a view not shared by Daryl Williams, who became Attorney-General in the Howard government.

The criticism came to a head in early 1997, when Tim Fischer, then Deputy Prime Minister and leader of the National Party, publicly criticised the Court for delay in publishing its judgment in Wik. Brennan's response typified his quiet but forceful leadership of the Court. Shortly after the judgment was published, he wrote a private letter to Fischer (the letter was later published in a national daily newspaper) defending the Court. Brennan received an unreserved apology from Fischer shortly thereafter.

Brennan retired as Chief Justice in 1998. Although he took up a number of academic positions, he has generally refrained from public comment on contemporary legal issues.

After retirement

Following retirement from the High Court, Sir Gerard was a Non-Permanent Judge of the Hong Kong Court of Final Appeal from (2000 - 2012), and External Judge of the Supreme Court of Fiji (1999 - 2000), Chancellor of the University of Technology, Sydney (1999 - 2005) and Foundation Scientia Professor of Law at the University of New South Wales (1998). He has been an Honorary Visiting Professor of Law at UNSW. In Hong Kong, he is known by a Chinese name (布仁立爵士, bou3 jan4 laap6 zoek3 si6).

Personal life

Sir Gerard Brennan married Dr Patricia O’Hara, an anaesthesiologist, in 1953. Brennan met O'Hara at the University of Queensland, where they had been students. They had seven children—three sons and four daughters—over a period of 10 years (three sons and four daughters). His first child, Frank Brennan, born in 1954, would become a Jesuit priest and achieve fame as an advocate for the rights of Aboriginal peoples. He is known for his involvment in the Wik debate when Paul Keating referred to him as 'the meddling priest'. A daughter, Bernardette, married Justin Gleeson, later Solicitor-General.

Religion

Sir Gerard Brennan is a Roman Catholic. In a 2005 interview he remarked: “Catholic means universal. Jesus invites all into the Kingdom of God. To him we are neither male nor female, Jew nor Greek, slave nor free. We are all equally called. That is an egalitarian philosophy. So too are we called to treat others equitably.” Sir Gerard has been described as possessing a 'thoroughly Catholic character', which shaped his values, his views on social justice and ideologies which he brought to the Court. Gerard attributes this to when he was young, as an altar boy, serving Mass twice during the week and once on Sundays. Sir Gerard describes, "There was real awe attached to the Sacrament. In fact belief in the Real Presence was so strong that it kept some men away from Communion”.

During his time as Chancellor of the University of Technology, Sydney, Brennan described how Catholic students were unchristian. In this blunt assessment, he blamed materialism, a culture of instant gratification and competitive school pressures for intolerance towards minorities and the disadvantaged. "We seek an ever-more elaborate lifestyle - better homes, better cars and, if the term is meaningful, better schools for our children", he told a conference of Catholic secondary school principals.

On the role of the Catholic Church, Sir Gerard said: "The Church should announce principles of morality and try to apply them to contemporary situation … and it should not permit itself to be inhibited from doing this by any extrinsic concern, whether political, financial or ecclesiastical".

Honours

In 1981, Brennan was appointed a Knight Commander of the Order of the British Empire and, in 1988, appointed a Companion of the Order of Australia in recognition of his service to the law.

Brennan has been awarded honorary degrees by the University of Melbourne (Hon. L.L.D.), University of Technology, Sydney (Hon. L.L.D.), University of Queensland (Hon. L.L.D.), Griffith University (Hon. D.Univ.), Central Queensland University (Hon. D.Litt.) and Trinity College, Dublin (Hon. L.L.D.). He served as Chancellor of the University of Technology, Sydney from 1999 to 2005.

In 2013, Brennan was awarded the Gold Bauhinia Star by the Chief Executive of Hong Kong.