Australian Dictionary of Biography

Sir Maurice Hearne Byers (1917–1999), barrister and solicitor-general, was born on 10 November 1917 in Sydney, third of six children of New South Wales-born Arthur Tolhurst Byers, hotelkeeper, and his English-born wife Mabel Florence, née Hearne. Briefly, Maurice thought he would be a train driver, but from about the age of seven or eight he knew he wanted to be a barrister, although he had no family connections in the law. He attended St Aloysius College, where he was educated by the Jesuits. All his life he would be religious, though not unquestioningly so. He excelled at school, and, as a self-described ‘fat boy,’ that was how he ‘shone’ (Byers 1997). Having won prizes in debating, history, English, and English composition, he passed the Leaving certificate examination held in 1936.

From 1939 Byers studied law at the University of Sydney (LLB, 1944), graduating with first-class honours. For two years he was an associate to the Supreme Court judge (Sir) Kenneth Street. He was admitted to the New South Wales Bar on 26 May 1944, and first practised from University Chambers at 167 Phillip Street. On 13 January 1949 he married Patricia Therese Davis, a nurse, at All Hallows Catholic Church, Five Dock. In 1957 he moved to Wentworth Chambers, joining among others the barristers (Sir) John Kerr, Gough Whitlam, and Robert Ellicott.

Byers had a diverse practice as a junior and took silk in 1960. From November 1965 to November 1967 he was president of the New South Wales Bar Association. As a silk he frequently appeared before the High Court of Australia and the Privy Council, and in 1973 he appeared with the attorney-general, Lionel Murphy, and the solicitor-general, Ellicott, for Australia in the government’s case against France in the International Court of Justice at The Hague, Netherlands, concerning nuclear testing in the Pacific. Later his advocacy style was described as ‘conversational,’ his ‘lean and spare’ arguments delivered with a ‘mellifluous voice [and] courtly gestures’ (Bar News 1999, 28, 30), and—as Sir Harry Gibbs, a former chief justice of the High Court put it—with ‘unfailing courtesy and good humour’ (Byers 1984, 18). His courtroom ingenuity was well recognised.

In 1973 Byers was appointed Commonwealth solicitor-general. He accepted the position because he had become ‘tired’ (Byers 1997) of representing people who did not wish to pay their tax or honour their contractual obligations. During his ten years in that role he served under three prime ministers: Whitlam, Malcolm Fraser, and Bob Hawke. Soon after Byers was appointed, Whitlam offered him a seat on the High Court. He was willing, but it went instead to the attorney-general, Murphy. Although ‘disappointed’ (Byers 1997), he accepted the decision.

During his career Byers would argue at least two hundred cases in the High Court. As solicitor-general he appeared in more than ninety significant cases. Of his forty-four constitutional cases, ‘he had 37 wins, six losses and one draw’ (Simos 1994, 18). His biggest impact was in cases concerning the Commonwealth’s external affairs power. He successfully persuaded the High Court, against the opposition of all States, that the Seas and Submerged Lands Act 1973 was a valid law, insofar as it declared sovereignty over the territorial sea and continental shelf because the legislation gave effect to the international Convention on the Territorial Sea and the Contiguous Zone. In Koowarta v Bjelke-Petersen, Tomkins, Glasson, and the State of Queensland in 1982 he persuaded a majority of the court that provisions of the Racial Discrimination Act 1975 were valid because they effectively implemented relevant provisions of the International Convention on the Elimination of All Forms of Racial Discrimination.

However, Byers’s most notable success on the external affairs power (albeit only in relation to one of his arguments) was in Commonwealth v Tasmania (‘Tasmanian Dam Case’), 1983, in which he convinced a majority of the court that sufficient provisions of the World Heritage Properties Conservation Act 1983 were valid under the external affairs power because it was a reasonable and appropriate way of fulfilling Australia’s obligations under the World Heritage Convention. The Federal government was thus empowered to block the Tasmanian government from constructing a dam and a power station on the Gordon River below its junction with the Franklin River.

 It has been said, rightly, that the period of the Whitlam government was both ‘the best of times’ and ‘the worst of times’ to be solicitor-general. These years ‘produced a maelstrom of constitutional controversy’ (Twomey 2020, 36), which provoked a series of legally and politically complex problems. The controversies culminated in 1975 in the questions of whether the governor-general had the requisite power to dismiss the prime minister and, if so, whether it should be exercised. A press statement issued by Ellicott in October 1975 had provoked that issue. Ellicott, who then held the seat of Wentworth for the Liberal Party, asserted that the governor-general not only had the power to dismiss the government but, in the circumstances, had an obligation to do so. On 4 November Byers signed an opinion in which he agreed the governor-general had the requisite power, but in the circumstances was not obliged to, and indeed should not, exercise it. The distrustful Kerr sought other advice and received it from the chief justice of the High Court, Sir Garfield Barwick, to the effect that if Kerr was satisfied the government was unable to secure supply he had not only authority but the duty to dismiss it. Kerr also consulted Sir Anthony Mason (then also a member of the High Court); Mason told Kerr that he did not agree with Byers’s advice but did agree with Barwick’s.

Appointed CBE in 1978, Byers was knighted in 1981. In 1983 he was appointed the first chairman of the Police Board of New South Wales, and returned to private practice. He became the chairman of the Australian Constitutional Commission in 1985. Demand for his services continued. He appeared in some of the most significant constitutional cases in that period. Although towards the end of his life he found it difficult to stand in the courtroom, judges readily accommodated his request to make his submissions seated. Portrayed on one occasion ‘as a Pickwickian figure,’ Sir Maurice had a ‘quick wit, twinkling blue eyes, cheerful face, plump figure and flowing grey hair’ (Lagan 1999, 4). Survived by his wife and their daughter and two sons, he died on 16 January 1999 at Darlinghurst and was buried in Northern Suburbs cemetery, North Ryde; a memorial service was held at St Mary’s Cathedral. A prize in constitutional law at the University of Sydney and an annual lecture were established in his name, and Maurice Byers Chambers in that city was named in his honour. His portrait by Gary Shead had been presented to the New South Wales Bar Association in 1997.