Australian Dictionary of Biography

Sir Garfield Barwick, Chief Justice of Australia in his office in Sydney, 1964

National Archives of Australia, A1200, L47604

Sir Garfield Edward John Barwick (1903–1997), barrister, politician, and chief justice of the High Court of Australia, was born on 22 June 1903 at Stanmore, Sydney, eldest of three surviving children of New South Wales-born parents Jabez Edward Barwick, typesetter, and his wife Lily Grace, née Ellicott. As the eldest son in a Methodist family of modest means, Garfield regarded his childhood as a happy time, despite being punctuated by episodes of illness suffered by both parents. A slightly built, diminutive figure, Barwick excelled at academic pursuits. Educated at Crown Street Public School, Cleveland Street Intermediate High School, and Fort Street Boys’ High School, in 1920 when aged only sixteen he secured a bursary to commence studies at the University of Sydney (BA, 1923; LLB, 1926). He was awarded the university medal in law in his final year.

Barwick undertook his articles of clerkship with Harold William Waddell, and within months had assumed a substantial role in the running of the practice. By 1927 he resolved to try his luck as a counsel, despite having neither the connections nor finances usually needed to facilitate a move to the New South Wales Bar. He was admitted to the Bar in June, and soon became known as a skilled advocate: his prodigious capacity for work resulted in his taking on a wide selection of briefs across a variety of legal jurisdictions. These successes were timely, as his growing practice meant he had sufficient resources to support his immediate family through some financial catastrophes. The failure of his father’s horse racing newspaper had resulted in bankruptcy in 1926, and Barwick himself suffered the same fate in 1929 when a petrol station operated by one of his younger brothers under Barwick’s name also collapsed. He was able to be discharged from his bankrupt status within the year. On 23 March 1929 at Burwood Methodist Church he married Norma Mountier Symons, a milliner whom he had originally met at Sunday school. Theirs was to be a happy union, resulting in the birth of a son, Ross, and a daughter, Diane.

While Barwick’s long career included six years as a politician and seventeen leading the High Court, it is his reputation as an advocate that remains universally renowned. His natural and immediate ability as junior counsel at the Sydney Bar was undeniable. Although he thought himself a poor cross-examiner, his colleagues working in the trial divisions of the lower courts did not agree. As he began to take briefs on significant private and public law matters, his reputation as counsel in the courts of appeal became formidable. His style was discursive: arguments were put logically and simply. He did not shy away from dialogue and engagement with the bench, preferring this to delivering submissions in monologue, and in fact preferred to go without written notes. His contemporaries at the Bar found him ‘cantankerous’ (Hulme 1997, 15), ‘jaunty in manner,’ and even ‘vain,’ but conceded that ‘he had much to be vain about’ (Reynolds 1997, 14). Although he initially favoured working in the New South Wales Supreme Court over the High Court or in other States for reasons of convenience, his ability eclipsed any early desire to remain wholly local. By 1941 he had taken silk, and by the mid-1940s was regarded as the undisputed leader of the Australian Bar, accepting High Court briefs across a variety of matters as well as in the Privy Council. Amongst his most significant cases were the Airlines case (1945) which circumscribed the Commonwealth parliament’s ability to nationalise interstate airlines, the State Banking case (1947) on implied limits to the Commonwealth parliament’s ability to legislate with respect to the States, and the Bank Nationalisation cases in the High Court and the Privy Council (1948, 1949) that famously struck down the Chifley government’s attempt to nationalise private trading banks. He also appeared on behalf of the Commonwealth in the Petrov royal commission on espionage (1954–55).

Bob Ellicott, KC, double cousin of Barwick and fellow barrister, politician and judge, later remarked that many of Barwick’s cases were the most difficult or complex in the court lists. Litigants sought him out in the hope that ‘he might be able to snatch a rabbit out of the hat,’ there being no other barrister as ‘known, respected and accepted so widely for his brilliance as an advocate’ (Ellicott 2011–12, 65). He was president of the Law Council of Australia (1952–54) and was appointed knight bachelor in 1953 for his services to the law, an honour rarely conferred on a barrister.

After thirty years at the Bar Barwick was approached early in 1958 by Prime Minister (Sir) Robert Menzies to consider running for the division of Parramatta in the House of Representatives. Menzies briefly floated the possibility of Barwick succeeding him as prime minister, but also readily agreed when asked for an assurance that a later appointment to judicial office would not be denied. There is some curiosity in Barwick’s response. As a young Methodist, he had been brought up in a what he later opaquely described as a family ‘interested in government and party politics,’ with his mother, unlike his father, having ‘radical leanings’ (Barwick 1995, 5). His family supported Labor, but the development of his own politics had not taken a similar course, at least insofar as he was more supportive of private enterprise and despite his having been a young supporter of the Lang State Labor government. He had never belonged to a political party and did not have an appetite for the rough-and-tumble of everyday politics. Nonetheless, Barwick accepted Menzies’s offer and was successful at a by-election in March 1958. Seven months later, and not to his surprise, he was appointed Commonwealth attorney-general.

Barwick took to the ministry with the confidence and energy which he was known for at the Bar. He focused on a reform agenda on a number of legislative fronts, including preparing the new Matrimonial Causes Act 1959—a precursor to the better-known Whitlam-era Family Law Act—that provided a means by which spouses might bring an end to their marriages, without proof of fault, after five years of separation. Barwick sought to amend the Crimes Act regarding subversion, and began drafting what later became the Trade Practices Act 1965 to curb the excesses of anti-competitive behaviour in Australian industry. He described himself as a ‘radical Tory,’ as he later titled his memoirs, suggesting that while his politics tended towards the conservative, he had inherited a pragmatic zeal, and a drive to transform where he perceived obvious deficiencies in the administration of law.

In December 1961 Menzies offered Barwick appointment as minister for external affairs, being anxious to cease holding the portfolio himself and having been impressed by Barwick’s performance when he acted in the office. Barwick accepted but insisted on simultaneously remaining attorney-general. His attention, by necessity, turned to Australia’s growing commitment to the Vietnam War, and subsequently to nurturing Australia’s relationship with Indonesia. The latter had mixed results that included persuading Menzies to pragmatically accept Indonesia’s claim to West New Guinea (Irian Jaya), but also the failure of efforts to avert Indonesia’s ‘confrontation’ with Malaysia. Sir Paul Hasluck, Barwick’s successor in the external affairs portfolio, thought that his predecessor’s diplomacy had incorporated an adversarial approach better suited to the courtroom.

Serving as minister for external affairs coincided with a re-evaluation by Barwick of his capacity for politics and ambition for political leadership. In June 1963 he advised Menzies that he planned to leave politics in 1967. He was disappointed when in December the prime minister told him of his intention to move him out of the attorney-general’s portfolio. This was effected in March 1964, and Barwick later suspected that Menzies had been influenced by the business community’s displeasure at his enthusiasm for trade practices reform. Also in March, Menzies alerted him to Sir Owen Dixon’s earlier than expected intention to retire as chief justice of the High Court, and offered the position to Barwick. In his memoirs Barwick claimed to have been hesitant about accepting, but indicated he would do so if cabinet approved, which it duly did the following month. The radical Tory was about to embark on a lengthy and later, divisive, tenure at the High Court.

Barwick’s chief justiceship attracted praise, ridicule, and opprobrium in equal parts, in marked contrast to his career at the Bar. The confidence, energy, and radical zeal which had served him well in earlier decades sometimes put his judicial colleagues offside. His efforts to encourage efficiencies in court operations included a failed attempt to prevent the court sitting in the State capitals, in order to hear cases in Canberra only. Barwick’s jurisprudence during his tenure on the court was not as nuanced as that of Dixon: his approach to decision-making was textual and often—maddeningly to some detractors—literalist. His efforts in criminal and private law have had greater precedential longevity than those, for instance, in the field of taxation law. A dogged insistence on a narrow reading of the general tax anti-avoidance provisions in income tax legislation caused significant consternation. Expansive interpretation of section 92 of the Constitution concerning free trade across State borders put him increasingly at odds with his High Court colleagues, and with Dixon’s own jurisprudence. Yet Barwick saw himself as merely carrying on Dixon’s work, regarding himself as a champion of the legalism endorsed by his predecessor. He was appointed GCMC in 1965 and awarded an honorary doctorate of laws by the University of Sydney in 1972.

Development of the common law, and administration of the court, were Barwick’s strongest contributions during his tenure as chief justice. Although appointed to the Privy Council in the same year that he was appointed chief justice, he was a robust supporter of moves to dismantle avenues of legal appeal to that body, thus ensuring that the High Court remained the apex jurisdiction in Australia on both constitutional and appellate matters. In the domain of private law, his advocacy off the bench, as well as his judgments, made significant contributions to the wider recognition of the Australian common law as being distinct from the English and adapted specifically to local conditions. He also encouraged the establishment in 1976 of the Federal Court of Australia, and advocated for the construction of a purpose-built High Court building in Canberra, rather than have the court continue to sit in State capitals. Barwick also oversaw the design and construction of this late modern Brutalist building, and was at pains to ensure that it was adequately equipped and resourced for the long term. His zeal for the project resulted in it being unofficially named the ‘Gar Mahal’ by his colleagues and the media when it was opened in 1980.

In 1975 Barwick met with controversy. His decision, while chief justice, to advise the governor-general, Sir John Kerr, during the parliamentary deadlock of that year would ultimately overshadow his legacies as an advocate or jurist. He consented in November to provide written advice to Kerr on whether the governor-general had the authority to dismiss the Whitlam government on the basis of its failure to secure supply. Barwick’s letter also offered commentary on the propriety of Kerr appointing a caretaker government should he choose to dismiss Whitlam. Kerr and Barwick were longstanding friends and both products of Fort Street Boys’ High and the Sydney Bar. Barwick considered the matter he was advising on to be non-justiciable, and he saw himself as merely guiding Kerr in a manner akin to offering personal advice, as opposed to advising in his capacity of chief justice. There was historical precedent of judicial intervention in arguably similar circumstances, but open questions arose about the status of any such practice, the correctness of Barwick’s advice, and the justiciability of the matter altogether.

The chief justice did not conceal his involvement in the events of the dismissal. Barwick advised his judicial colleagues immediately of his letter to the governor-general and consented to Kerr making his correspondence public. He never resiled from his position on the correctness of Kerr’s actions, despite the contempt that his conduct attracted from within the political, legal, and academic arenas. Five years after the dismissal, David Marr produced a critical biography of Barwick, damning the chief justice as motivated by ambition and achievement alone. Three years later Barwick published something of a riposte, Sir John Did His Duty, intended for the ‘constitutionally uninformed’ and to correct ‘continuing misunderstanding’ (Barwick 1995, 282) of the events of 1975.

In February 1981 Barwick retired from the court, as his eyesight began to fail as a complication of diabetes. He was appointed AK in June that year, and continued in public life through his involvement in charities, many of which he had supported for decades. His lifelong interest in botany and conservation continued, including serving as a trustee (1944–64) of the Kosciusko State Park, and as the inaugural president of the Australian Conservation Foundation (1966–71). He was also inaugural chancellor of Macquarie University (1967–78), national president of the Australian Institute of International Affairs (1972–83), patron of the National Council for the Blind (1968–97), and president of the Royal New South Wales Institute for Deaf and Blind Children (1976–97). In retirement he pursued his interests in gardening, yachting, and fishing. His enthusiasm for life was infectious and could be daunting; ‘you had to be on your guard to keep up’ (Ellicott 2011–12, 69).

A Radical Tory was published in 1995 partly in response to what he regarded as the ‘polemic’ of the Marr biography, which had by then been released in a second edition. The autobiography reveals all the self-assurance, defiance, and vigour for which Barwick was known in public life and as an advocate, but was tempered with self-effacement. His recollections of the dismissal remained unyielding. On 12 July 1997 he died at North Turramurra, Sydney, and was cremated. He was survived by Norma, who died two months later, and by his children. Portraits by Brian Dunlop, Reg Campbell, and John Brack are held by the High Court of Australia, the National Portrait Gallery, and Macquarie University respectively. The Garfield Barwick School opened in 1989 at North Parramatta to provide a spoken language program for children who are deaf or hard of hearing.