Australian Dictionary of Biography

Edward McTiernan, 192?

National Library of Australia, nla.pic-an23474318

Sir Edward Aloysius McTiernan (1892–1990), politician and judge, was born on 16 February 1892 at Glen Innes, New South Wales, second of three sons of Irish-born parents Patrick McTiernan, police constable, and his wife Isabella, née Diamond.  Edward attended Metz Public School.  After his family moved to Sydney around 1900, he was taught by the Christian Brothers at Lewisham, and by the Marist Brothers at St Mary’s Cathedral High School.  Having matriculated in 1908, he lacked the financial means to attend university as a full-time student and instead joined the fledgling Commonwealth Public Service.

Studying part time, McTiernan graduated in arts from the University of Sydney (BA, 1912).  He had undertaken two law subjects and, like ‘an Antipodean Dick Whittington’, he approached the law firm Sly & Russell, whose brass plate he saw while walking along the street.  Taken on as a law clerk, he studied at night at the University of Sydney (LLB, 1915), graduating with first-class honours.  Moving to Allen, Allen & Hemsley, he learned that Justice (Sir) George Rich of the High Court of Australia, whose son had died in World War I, wished to employ an associate who had been rejected for active service.  He chose McTiernan, who at age 7 had fractured his arm, which was not properly set, and who held a ‘rejected volunteers’ badge’.  On 24 February 1916 McTiernan was admitted to the Bar.

By now McTiernan was involved in politics on the Labor side.  He publicly opposed conscription at the second referendum in 1917.  Elected in 1920 to the State seat of Western Suburbs, he became, at age 28, attorney-general (1920-22) in the Storey government.  In his maiden speech he declared himself an ‘idealist’, committed to fairness and justice in the legal system.  When Jack Lang led Labor to victory in 1925, McTiernan was reappointed attorney-general.  He initially worked closely with Lang and was a ‘respected’ and moderate voice in the fractious world that was New South Wales Labor politics.  In 1956 Lang remembered ‘Eddie’ as an ‘almost timid’ soul, ‘ultra-cautious in his politics’ and ‘very much attached to his parents’.

Falling out politically with Lang, McTiernan did not recontest his seat at the 1927 election.  He returned to the Bar and in 1928 became Challis lecturer in Roman law at the university.  In 1929 he was elected to Federal parliament as the member for the Sydney seat of Parkes.  As an austerity measure, Prime Minister Scullin decided in 1930 against filling two vacancies on the High Court.  When Scullin and the attorney-general Frank Brennan were overseas, against their wishes ‘caucus resolved that the government should appoint to the Bench two men known to have social views sympathetic to Labor’.  McTiernan and H. V. Evatt thereby joined Australia’s highest court.

The appointments were strongly criticised as ‘political’ by the conservative forces that dominated the Australian legal community.  McTiernan also faced the charge that he lacked the qualifications for high judicial office, having spent relatively little time at the Bar.  Aged 38, he was sworn in on 20 December 1930.  Justice (Sir) Hayden Starke ridiculed McTiernan and Evatt as ‘parrots’ whose judgments mimicked those of their fellow High Court justice (Sir) Owen Dixon.  McTiernan’s personality discouraged him from retaliating to such provocations.  In 1948, however, he walked off a case in response to ‘the continued hostility shown to me by . . . Mr Justice Starke’.

McTiernan did not directly style himself as a ‘Labor-judge’.  Cautious and moderate, he often took a centralist stance.  In the Garnishee case (1932), the Lang government challenged the validity of Commonwealth legislation designed to force New South Wales to pay its debts.  Unlike Evatt, McTiernan decided against his former political leader.  In the Bank Nationalisation case (1948) he and Chief Justice Sir John Latham would have substantially upheld the Chifley government’s banking legislation; in the Communist Party case (1951) he was in the majority that struck down the Menzies government’s ban on communism.  He was, however, the only High Court judge to uphold Labor’s ambitious pharmaceutical benefits scheme (1945).

On 27 December 1948 at St Roch’s Catholic Church, Glen Iris, Melbourne, McTiernan married Kathleen Margaret Mary Lloyd.  He was appointed KBE in 1951.  Early in the 1950s, he declined the Menzies government’s offer to become ambassador to Ireland.  He was appointed a privy councillor in 1962.  In the 1970s he upheld the thrust of the Whitlam government’s initiatives, which had generated a new array of constitutional challenges.  In 1976, after a fall that fractured his hip, McTiernan reluctantly retired.  Chief Justice Sir Garfield Barwick described the retirement, after forty-six years of service, as ‘historic’:  he knew of no other judge of a court of the British Commonwealth of Nations who had occupied a bench for so long a period.  The impact of his judgments was not commensurate with his longevity on the bench; he showed a ‘remarkable consistency’ in his jurisprudence but not greatness.

Sir Edward had a deep commitment to his traditional Catholic faith; he had been appointed (1929) a papal privy chamberlain.  Although frugal and ‘intensely shy’, he extended to his many associates, male and Catholic, warmth and hospitality.  His interests included gardening, reading and horse racing.  Survived by his wife, he died on 9 January 1990 at Turramurra, Sydney, and was buried in Rookwood cemetery.