This article was published in Australian Dictionary of Biography, Volume 17, (MUP), 2007
Sir Richard Arthur (Dick) Blackburn (1918-1987), judge, was born on 26 July 1918 at Mount Lofty, South Australia, eldest of four children of Arthur Seaforth Blackburn, solicitor, and his wife Rose Ada, née Kelly, both born in South Australia. Richard, known as Dick, was educated at the Collegiate School of St Peter, Adelaide. At the University of Adelaide (BA, 1939), where he resided at St Mark’s College, he won the Stow and John Howard Clark prizes, studied some law subjects and graduated with first-class honours in English literature. Developing a strong interest in the arts, especially drama, he appeared in a number of plays. He was named South Australian Rhodes scholar for 1940.
Having enlisted in the Militia on 4 September 1939, Blackburn deferred his scholarship. He transferred to the Australian Imperial Force in May 1940 and, commissioned as a lieutenant, embarked for the Middle East in November 1941. Posted to the 9th Division Cavalry Regiment, he served in Syria, Palestine and Egypt, before returning to Australia early in 1943. In August that year he was promoted to temporary captain (substantive August 1945) and sent to New Guinea with his division. By March 1944 he was back in Australia, where he performed instructional duties in staff schools. As a staff officer, from March 1945, with the 3rd Operational Report Team, he took part in the invasion of British North Borneo in June. He transferred to the Reserve of Officers on 8 November in Adelaide.
Taking up his Rhodes scholarship, Blackburn studied law at Magdalen College, Oxford (BA, 1948; BCL, 1949), where he became president (1948-49) of the junior common room. He won the Eldon scholarship and was called to the Bar of the Inner Temple on 17 November 1949. In 1950 he returned to the University of Adelaide as (Sir John Langdon) Bonython professor of law. Against some opposition from the profession, he initiated changes to the curriculum and employed more full-time staff. An excellent teacher known for his clear exposition, he demanded high standards from his students. He took a positive interest in university life, as a member of the debating club, and as a councillor (1950-61) of St Mark’s College, the constitution of which he helped to reform. Active (1950-57) in the Adelaide University Regiment, Citizen Military Forces, he commanded the unit in 1955-57 as a lieutenant colonel.
Blackburn had married with Presbyterian forms Bryony Helen Carola Curkeet, née Dutton, on 1 December 1951 at her family’s home, Anlaby, at Kapunda, South Australia. As she was a divorcee, they had been unable to marry in the Church of England. The rift was healed in 1953 when the Bishop of Adelaide received them back into full communicant membership. Blackburn had been admitted to practise as a barrister and solicitor of the Supreme Court of South Australia on 23 October 1950. When he resigned from the university in 1957, he became a partner in an Adelaide law firm, Finlayson Phillips Astley & Hayward (Finlayson & Co.), specialising in commercial work. Resuming his CMF service in 1962 as a colonel, he commanded the 1st Battalion, Royal South Australia Regiment, until 1965. For leadership in his two commands he was appointed OBE (1965). He served as a governor (1965-66) of St Peter’s College.
In 1966 Blackburn became resident judge of the Supreme Court of the Northern Territory. Conditions in the court were relatively primitive but he did not let that impair the quality or quantity of his judicial output. He wrote a new set of rules for the court, which was a busy one with a wide range of work. During this time he delivered his most famous judgment, Milirrpum and others v. Nabalco Pty Ltd and the Commonwealth of Australia (1971), the first major Australian superior court decision on Aboriginal land rights. Certain Aborigines claimed possession and a right to the enjoyment of parts of Arnhem Land. Sensitive to their claims, Blackburn found that they had a system of traditional law, highly adapted to the country and promoting a stable society. However, he felt bound by British precedent and held that the plaintiffs’ law did not give them, in European terms, a proprietary interest in land. He was also unpersuaded that the claimed land was identified with that occupied by the plaintiffs’ ancestors in 1788. The decision provoked legislation to give Aborigines access to land but stood until overruled by the High Court of Australia in Mabo and others v. State of Queensland (1992).
Blackburn also actively participated in Darwin community life. He was president of the Arts Council of Australia (Northern Territory Division) and of the Aboriginal Theatre Foundation. The first chancellor of the Anglican diocese of the Northern Territory, he wrote its constitution. He became patron of a number of organisations, including the Darwin Aero Club, the Darwin Sailing Club, the Northern Territory Basketball Association and the Historical Society of the Northern Territory. He and his wife were both pilots and often flew their Cessna 172 to remote places in the Territory. Blackburn maintained his private pilot’s licence from 1963 until he sold the Cessna in 1979. Helen Blackburn, an expert on sea shells, published a book on the subject.
Appointed a resident judge of the Supreme Court of the Australian Capital Territory in 1971, Blackburn was also chairman (1971-76) of the ACT Law Reform Commission. During his tenure the commission produced eight reports, all carefully argued and researched. Many of the recommendations were implemented, not always promptly. Interested in the independence of the judiciary and in procedural reform, he also enjoyed the ACT court’s wide range of legal cases, especially defamation proceedings. He presided over the ACT’s long-running defamation action Comalco Ltd v. Australian Broadcasting Corporation (1986), which remains an important precedent for the damages payable to defamed companies.
In 1977 Blackburn was made a judge of the new Federal Court of Australia. In November he was appointed chief judge of the Supreme Court of the ACT and in 1982, when the position was renamed, became chief justice. He felt strongly about the institution of the judiciary and the separation of powers. In 1984 the Commonwealth government appointed the judge Donald Stewart head of the newly formed National Crime Authority. When the press reported that Stewart, who was obliged to resign from the New South Wales Supreme Court, would be appointed by the Commonwealth government to the ACT Supreme Court, Blackburn objected. Concerned at this apparent threat to the separation of powers, he took the unusual step of making a statement in open court that Stewart was not to be a judge of any court. The government legislated to give Stewart judicial status rather than an appointment.
Widely known for his courtesy on the bench, Blackburn retired on 31 March 1985. His judgments were scholarly and tightly reasoned but perhaps too legalistic. Chambers in Canberra and Darwin were named after him. The Law Society of the ACT established an annual lecture in his name; he delivered the inaugural lecture, `The Courts and the Community’, in 1986.
That year Blackburn was appointed with two other retired judges, Sir George Lush and Andrew Wells, to form a parliamentary commission of inquiry to consider whether any conduct of Justice Lionel Murphy of the High Court amounted to proven misbehaviour under section 72 of the Constitution. The commission identified forty-two allegations, twenty-eight of which it held lacked substance. It completed its report on the meaning of s.72 in August 1986 but the announcement on 31 July that Murphy had terminal cancer effectively halted the work of the commission.
Keen to educate practitioners appearing before him, Blackburn had chaired the committee of management of the Australian National University legal workshop. As pro-chancellor (1976-84) and chancellor (1984-87) of the ANU, he won respect for his fairness and commitment to the ideals of a university as a community of scholars. He maintained his wide interests in Canberra, joining (1972) the Australian Council for the Arts and becoming chairman (1983) of the Theatre ACT Patrons Organization. In 1977 he had declined election to the appellate tribunal of the Church of England, because he no longer regarded himself as a communicant member. Appointed commander of the Order of St John of Jerusalem in 1980, he was its patron in the ACT from 1979 to 1987. He was knighted in 1983. St Mark’s College made him an honorary fellow in 1986. Still interested in military matters, he delivered the (Sir James) Harrison memorial lecture at the Royal Military College, Duntroon, in 1986. Survived by his wife and their daughter and son, Sir Richard died of cancer on 1 October 1987 in Canberra and was cremated
Richard Refshauge, 'Blackburn, Sir Richard Arthur (Dick) (1918–1987)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/blackburn-sir-richard-arthur-dick-114/text21909, published first in hardcopy 2007, accessed online 6 May 2016.
This article was first published in hardcopy in Australian Dictionary of Biography, Volume 17, (MUP), 2007