Autobiography of Garfield Barwick

The intellectual and other cultural divides between New South Wales and Victoria that emerged in the second half of the nineteenth century are among the most intriguing features of Australian history. Evidence of their continuing influence on law and politics in more recent times provide the most significant aspect of this autobiography by Sir Garfield Barwick. Successively Sir Garfield rose to prominence as a leader of the Sydney Bar, at fifty six he entered the national Parliament, quickly attaining ministerial office under Prime Minister Menzies, first as Attorney-General and then as Minister for Foreign Affairs, before he was appointed as Chief Justice of the High Court of Australia in 1964. Disappointingly, however, his ‘reflections and recollections’ only sparsely reach beyond the surface in his examination of his life and times, despite the pivotal role he sometimes played in the conduct of legal and political affairs in the mid-years of the century. A prime example of this is to be found in his discussion of Lionel Murphy’s appointment to the High Court when he told Prime Minister Whitlam that his nominee was ‘neither competent nor suitable for the position’. As with so much else in this volume, however, he then leaves the matter in the air, giving no firmly satisfactory justification for his view, largely resting his case on the assertion that information ‘locked away from public view’ in government records can be assumed to justify his stand, even if the Prime Minister paid no heed to it. In much the same vein, he only gives tantalising, too often insubstantial accounts of his early life and subsequent career as a Sydney barrister, despite his clear indications that he was heavily influenced by this throughout his career. As a graduate from the Fort Street High School he was part of an elite, personalised network, with large influence in law and politics in New South Wales. But he gives little inkling of its role in his later life, also neglecting to examine the way his attitudes and thinking towards individuals in this group seem to have been moulded by his school experience. Similarly, Sir Garfield adds little of historical value to what is already known about the great constitutional cases in which he was deeply involved in the years immediately after the Second World War. Not the least of these was the monumental constitutional struggle over the Chifley Government’s ultimately failed attempt to nationalise Australia’s private banks, where the full story of the legal manoeuvrings surrounding this still remain to be told. Despite this, in broader terms, particularly as it relates to the later phases in his public career, this book provides valuable insights into important aspects of Australian politics and law in the years after Sir Garfield gave up full-time legal practice to enter the Federal Parliament and then became Chief Justice of the High Court, even if this seems largely unintended. As a neophyte politician, he seems to have had little appreciation of the consummate political skills of Prime Minister Menzies and the way he worked assiduously to maintain Victorian hegemony over right of centre national politics in Australia. As Sir Garfield hints, he seems to have harboured the mistaken belief that he could be Menzies’ anointed heir when he was lured into politics. But his hopes were soon dashed when he found that the Prime Minister’s fellow Victorian, Harold Holt, was clearly his preferred successor. Similarly, his translation from the Attorney-Generalship to become Minister of Foreign Affairs seems to have had more to do with the disinclination of Menzies and his Victorian supporters to countenance some of Sir Garfield’s initiatives to introduce new laws controlling business practices, even if he appears to gloss over this in writing about it. The gulf between Sir Garfield and his compatriots south of the Murray river became even more apparent, however, after his appointment to the High Court. As Chief Justice, his judgments lacked the subtlety and philosophic breadth of his two immediate Victorian predecessors, Sir John Latham and Sir Owen Dixon. Instead, as Sir Garfield himself relates, he adopted the well-established Sydney style of a narrow literalist approach to constitutional and other legal interpretation, nurtured by a form of legal education at Sydney University Law School that was long far more English in character compared to its counterpart in Victoria. Finally, this reached a pinnacle at the time of his direct involvement in the events that led to the dismissal of Prime Minister Whitlam in 1975 by Governor-General, Sir John Kerr. In this seminal political event, as Sir Garfield now discloses, his New South Wales legal background, and the myopia this produced, seems to have been a predominant influence in determining how he acted in advising the Governor-General he could dismiss the Whitlam Government. Quite remarkably, as he now reveals, even well after the events of 1975 he had still ‘overlooked’ long-standing precedents from Victorian political constitutional experience in publishing comments on the situation. This revelation as he shows, however, has not led him to any change of heart over the role he played in the dismissal crisis. Despite the fact that these Victorian precedents from the nineteenth century were well known and discussed for upwards of a century before 1975, and well regarded as being of contemporary significance, Sir Garfield curtly dismisses them as coming from ‘Victoria in what might be called its frontier days’. To further confuse the matter, Sir Garfield also makes no mention of the way one of these Victorian crises led to litigation in the courts as a result of moves by a Victorian government to obviate the rejection of a supply bill in the colony’s upper house. To Sir Garfield, one justification he gives for proffering advice to Sir John in 1975 was that the subject matter was beyond the reach of judicial determination. But this was not necessarily so, as this nineteenth-century Victorian litigation may well be taken to suggest. This means, too, that however criticism may understandably sometimes be directed by Sir Garfield and others to some who have discussed the events of 1975, including David Marr in his Barwick, the former Chief Justice himself certainly cannot be accepted as being given the last word on the constitutional events which traumatised Australia with the dismissal of the Whitlam Government by Sir John Kerr.

Alex Castles

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