Garfield Barwick

Early life and education

Barwick was one of three brothers born to Methodist parents, of Cornish origin; he would later be very insistent on his Cornish identity. He was raised in Stanmore, an inner-city suburb of Sydney, and attended Fort Street High School. He graduated from the University of Sydney with a University Medal in law.

Career

A very diligent student, Barwick was admitted to legal practice soon after finishing university, although (on his own later admission) he suffered severely in financial terms during the Great Depression. He was guarantor for a bank loan to his younger brother to operate a service station in Ashfield, but was unable to repay the bank when the loan was forfeited, and was made bankrupt after he sued the oil companies for defamation. This was held against him by many throughout his career.

Nevertheless, he practised as a barrister from 1927 in many jurisdictions, achieving considerable recognition and the reluctant respect of opponents. He first came to public prominence in the 1943 case over the artistic merits of William Dobell's Archibald Prize-winning portrait of the painter Joshua Smith; a losing entrant claimed the picture was caricature, not portraiture. Barwick represented the plaintiff, and although they lost, his name became well known from that point onwards.

Having been briefed in many of Australia's defining constitutional cases (e.g., the Airlines case, and the Bank Nationalisation case), he was knighted in 1953.

A famous example of his astute advocacy involved thirteen Malaysians sentenced to death who appealed to the Privy Council. Twelve retained Barwick, who duly found a technical deficiency in the arrest warrants and secured their freedom. The last, whose counsel was not so thorough, was hanged.

Parliamentary and ministerial career

Barwick was elected to the House of Representatives as the Liberal member for Parramatta at a by-election on 8 March 1958, and re-elected in the general elections of 1958, 1961 and 1963.

During his period in parliament, he served as Attorney-General and Minister for External Affairs. As Attorney-General, he promoted acts amending the Matrimonial Causes Act and the Crimes Act. He established a model for restrictive trade practices legislation and led the Australian delegation to the General Assembly of the United Nations for its 15th, 17th, and 18th sessions. An alleged war criminal Ervin Viks found refuge in Australia. Attorney General, Barwick continued to reject the request for Viks, claiming that it could not be met because: the USSR and Australia did not have an extradition treaty; Viks had passed immigration screening processes and; consequently, any such extradition would undermine Australian sovereignty. Viks died in Australia in 1983.

Chief Justice of the High Court

On 27 April 1964, Barwick was appointed Chief Justice of the High Court of Australia, succeeding Sir Owen Dixon, being the first law graduate from the University of Sydney to hold this position. He was instrumental in the construction of the High Court building in Canberra (unofficially known, as a result, as "Gar's Mahal"), and became the first president of the Australian Conservation Foundation in 1966.

Barwick was one of only eight justices of the High Court to have served in the Parliament of Australia prior to his appointment to the Court; the others were Edmund Barton, Richard O'Connor, Isaac Isaacs, H. B. Higgins, Edward McTiernan, John Latham, and Lionel Murphy.

In 1972 he became President of the Australian Institute for International Affairs. He was an ad hoc judge of the International Court of Justice in 1973–74 in the Nuclear Tests (Australia v. France) and Nuclear Tests (New Zealand v. France) cases, representing Australia and New Zealand jointly.

A significant decision of the Barwick court marked the beginning of the modern interpretation of the corporations power, which had been interpreted narrowly since 1909. The Concrete Pipes case (1971) established that the federal parliament could exercise the power to regulate at least the trading activities of corporations, whereas earlier interpretations had allowed only the regulation of conduct or transactions with the public.

The court decided many other significant constitutional cases, including the Seas and Submerged Lands case (1975), upholding legislation asserting sovereignty over the territorial sea; the First (1975) and Second (1977) Territory Senators cases, which concerned whether legislation allowing for the mainland territories to be represented in the Parliament of Australia was valid; and Russell v Russell (1976), which concerned the validity of the Family Law Act 1975. The court also decided several cases relating to the historic 1974 joint sitting of the Parliament of Australia, including Cormack v Cope (1974) and the Petroleum and Minerals Authority case (1975).

The Barwick court decided several infamous cases on tax avoidance and tax evasion, almost always deciding against the taxation office. Led by Barwick himself in most judgments, the court distinguished between avoidance (legitimately minimising one's tax obligations) and evasion (illegally evading obligations). The decisions effectively nullified the anti-avoidance legislation and led to the proliferation of avoidance schemes in the 1970s, a result which drew much criticism upon the court.

During the 1975 Australian constitutional crisis, he controversially advised Governor-General Sir John Kerr on the constitutional legality of dismissing a prime minister who declined to advise an election when unable to obtain passage of supply. This was significant, because Barwick and Gough Whitlam, whose government Kerr dismissed, had a history of antipathy dating from the mid-1950s. Further, Whitlam had refused Kerr's request for permission to consult Barwick, or to act on any advice except his own.

The High Court was due to move to new premises in Canberra in May 1980. A year earlier, in anticipation of the move, Barwick wrote to Malcolm Fraser (who had become prime minister as a result of the dismissal and who was confirmed in office by the December 1975 election), seeking an official residence in the national capital. His request "went down like a lead balloon with the cabinet which had run into trouble with the High Court's burgeoning costs while urging economic restraint on other Australians", and was rejected. The $46.5 million High Court building in Canberra was opened by the Queen in May 1980, and is today still referred to as "Gar's Mahal".

While Barwick retired from the bench in 1981, he retained excellent health and continued to be active as a much-sought-after expert on legal issues until the end of his life. His writings included Sir John Did His Duty (a commentary on Kerr's dismissal of Whitlam) and his 1995 memoirs, A Radical Tory.

Personal life

In 1929, Barwick married Norma Symons, with whom he would have one son and one daughter.

He was the double cousin of Robert Ellicott, also an Attorney-General, and later Justice of the Federal Court of Australia. On 13 July 1997, aged 94, Barwick died. He was cremated and his ashes interred at Northern Suburbs Memorial Gardens.

Honours

In June 1953, he was made a Knight Bachelor, "in recognition of service to the Public service".

In 1964, he was appointed a Privy Counsellor.

In January 1965, he was appointed a Knight Grand Cross of the Order of St Michael and St George (GCMG), honouring his contribution as Chief Justice of the High Court.

In June 1981, he was appointed a Knight of the Order of Australia (AK), "in recognition of service to the Australian Parliament, government and the law".