Five Fascinating High Court Justices

Since our High Court was established in 1903, we have had 12 Chief Justices and 42 Justices – all with interesting stories to tell.

Here, we attempt to narrow the list down to just five of the most fascinating.

1. Sir Edmund Barton (1903 – 1920)

Barton was certainly a man of many talents – as well as being one of the first High Court Justices, he was also our first Prime Minister. Barton was an ardent Federation supporter, in a time before Australia was one nation – when the states governed themselves under the authority of Britain.

As a Justice of the High Court, Barton’s talent was praised by a later Chief Justice, Aidan Knox, who commented that his “mastery of constitutional law and principles were unsurpassed” – although Barton had an advantage in that regard, having been heavily involved in the drafting of our constitution.

The fact that Barton was a politician as well as judge blurred the concept of the ‘separation of powers’ in the eyes of some. But despite his political background, Barton was praised as being a good and “scrupulously impartial” judge.

Like many law students preparing for exams, Barton would often work from dusk till dawn, prompting fellow Justice Samuel Griffith to say to his wife “I believe Sir Edmund sat up all Monday night preparing [a judgment]. He never begins until the night before.”

2. Edward McTiernan (1930-1976)

McTiernan is the longest serving High Court Justice to date, serving on the bench for 45 years and retiring at the ripe old age of 84.

Unfortunately for McTiernan, he was disliked by many of his colleagues. Fellow Justice Starke believed that McTiernan was appointed for purely political reasons, and was often abrupt and rude towards him.

McTiernan was a strong advocate of the working class, and was sympathetic to defendants in criminal trials.

Because of this, he gained a reputation as a champion of the underdog. He presided over a landmark case which overturned legislation making it illegal to be a member of the Communist party in Australia.

As the years went by, McTiernan’s brain kept sharp but lawyers had trouble hearing his voice in the courtroom, and he was taking longer and longer to write his judgments. While many believe McTiernan would have stayed in the job until his death, fate ultimately stepped in.

An unfortunate accident befell McTiernan in 1976. He broke his hip while chasing a cricket around his hotel room with a rolled-up newspaper. He was forced to retire when the Chief Justice Sir Garfield Barwick refused to have a ramp installed into the courtroom to allow for his wheelchair.

Despite concern for McTiernan’s ‘feeble’ looks, the stubborn battler survived another 14 years after retirement.

3. Lionel Murphy (Justice 1975-86):

Murphy is possibly the most controversial High Court Justice of all time. Before his appointment to the highest court in the land, Murphy was a Labor party candidate and won a seat in the Senate. He was the leader of the opposition at one point, as well as Attorney-General.

Murphy’s appointment by Gough Whitlam raised many eyebrows – although he was not the first politician to be appointed to the court. Even the Chief Justice, Sir Garfield Barwick, disliked Murphy, declaring that he was “neither competent nor suitable for the position.”

But the controversy didn’t end when upon appointment – some branded Murphy as a ‘lawless’ judge, and he refused to wear a wig except during the most formal occasions.

Murphy was rumoured to keep a copy of the Constitution by his bedside – not out of devotion, but as a cure for insomnia!

But the death-knell for his career was the so called “secret tapes of judge” which were alleged to be recordings of Murphy engaging in misconduct with another man who had earlier faced charges of forgery and conspiracy.

Murphy was charged with attempting to pervert the course of justice. Although he was ultimately acquitted, his name had been irreparably tarnished.

The ‘Murphy Affair’ was polarising: those who believed in his innocence saw it as a witch-hunt, while his detractors were adamant that it revealed his true colours.

Murphy met with tragic news in the midst of the investigation – he was suffering from cancer; in fact, he was terminally ill. Although the investigation was dropped, Murphy returned to the bench for only a month before succumbing to the disease.

4. Michael Kirby (1975 – 2009)

No list of High Court Justices would be complete without including Kirby, who is undoubtedly one of the most popular judges that Australia has ever seen.

Kirby is famous for being passionate about human rights, as well as often giving dissenting judgements (ie disagreeing with the majority of judges).

Being a High Court Justice is simply one of his many achievements – Kirby has been on three university governing bodies, as well as a member of the World Health Organisation’s Global Commission. He has undertaken invaluable work advocating human rights and the fight against AIDs.

His website makes the grandiose claim that he invented the blog. It makes a number of other interesting and insightful statements, including that “causing occasional offence is not the greatest sin. Being boring, self-righteous or unkind compete for that award.”

5. Mary Gaudron (1987 – 2003)

Mary Gaudron was Australia’s first female High Court Justice, appointed in 1987, but this is far from her only noteworthy achievement.

Gaudron had a distinguished career before her appointment – having been the Solicitor-General, a Queen’s counsel and a Federal Court judge.

Once on the High Court bench, she sat on many landmark cases including Mabo and Wik – which were two of the most significant cases relating to the rights of Indigenous Australians. She has been instrumental in the development of criminal law.

Gaudron chose to leave the bench early, retiring at 60 – which is 10 years before the mandatory retirement age for judges.

After her retirement, Gaudron once again found herself in the courtroom – but on the other side of the bench.

She was sued by a sister, who wanted a share of the estate Mary had inherited from her mother. But like many other things in her career, Mary Gaudron came out as the winner.

She was a strong advocate for women’s rights, especially the advancement of women in the legal profession.

So there you have it – five brilliant, interesting and influential minds.