Obituary: Sir Garfield Barwick

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The Independent Online
Garfield Barwick was arguably Australia's most successful barrister this century. He was also a remarkable foreign minister and a controversial Chief Justice. As a leading QC in the 1940s and 1950s he fought, and usually won, some of Australia's most significant constitutional cases. But as Chief Justice in 1975 his advice to the Governor-General, Sir John Kerr, which led to the dismissal of the incumbent Whitlam Labor government, divided the nation. For good or ill, Barwick will be remembered for this intervention long after the extraordinary achievements of the rest of his life are forgotten.

Barwick was born in 1903 in the slums of inner Sydney. The family was Methodist working class, and his father a struggling typesetter. The young Barwick walked miles across town to school, sometimes barefoot. He climbed the scholarship ladder rapidly, first to the famous Fort Street school and then to Sydney University, where he read Law and won a university medal.

His father invalided with lead-poisoning, Barwick had no family money to back him. This situation was compounded in Barwick's early days at the Bar when he suffered bankruptcy having to meet obligations as guarantor of a business loan taken out by one of his brothers. Nevertheless, "Gar" Barwick steadily built up a reputation as a brilliant advocate, particularly in commercial cases.

He took silk in 1942. In 1944 he argued in court that the painter William Dobell should not be awarded the Archibald Prize for portraiture as the work was a caricature. Barwick lost the case but gained a valuable public profile.

Less spectacularly, throughout the war years Barwick successfully defended many businesses against the excesses of government wartime regulations. When the Chifley Labor government moved to nationalise Australia's interstate airlines in 1945, it was Barwick who thwarted the attempt in court. Two years later, Chifley sought to nationalise Australia's private banks, and Barwick was the natural choice to lead the team of lawyers sent to London to put the banks' case before the Privy Council.

After a lengthy hearing Barwick managed both to defeat the government's case and to best another Fort Street lawyer, Bert Evatt, who as Attorney- General was his main opponent. So began over a decade of lucrative and rewarding work before the Privy Council.

Barwick's method suited the appeal courts. He eschewed rhetoric and histrionics and quietly and carefully made his points of law. A man of short stature (5ft 4 in), slight build and with a thin, piping voice, Barwick had to rely on his wits and hard preparation. Evatt's nickname for him, "Bushy Tail", conveys something of the busy, bright-eyed sharpness with which the dapper Barwick went about his work. Others were less complimentary, an exasperated Gough Whitlam, for instance, was named in parliament in the early 1960s for calling him a "truculent runt" and a "bumptious little bastard".

The Cold War years found Barwick the preferred advocate in the Menzies Liberal government's failed attempt to ban the Communist Party in 1951, and he was also appointed to represent the Australian secret service in the celebrated Petrov Royal Commission of 1954 - the antipodean equivalent to the McCarthyite witch-hunts which so bedevilled American politics at that time. Barwick was knighted in 1953 for his services to the law.

With few peaks left to conquer in his profession and having amassed a considerable personal fortune, Barwick turned to federal politics, and was elected Liberal member for Parramatta in 1958. Delighted to have his talents, Menzies soon had him on the front bench. Two years earlier Barwick had been diagnosed with diabetes, but he chose to keep his condition secret. His deep-seated tendency to work alone and his intolerance of criticism made him, by his own admission, an indifferent politician; even so he proved to be a minister of sound judgement and considerable courage.

As Attorney-General Barwick stood up to his conservative colleagues and to the Catholic Church when he introduced Australia's first no-fault divorce legislation. And, as foreign minister, he took a long view of Indonesia's sabre- rattling over Dutch New Guinea. He agreed with the dictum of Indonesia's President Sukarno that the Dutch would eventually go, but that geography dictated that Australia would stay. Consequently, despite press accusations that he was an appeaser, Barwick kept the channels of communication with Indonesia open and played a constructive role in brokering a settlement.

In 1964, troubled by his diabetes, Barwick asked to leave parliament at the next election, and Menzies almost immediately appointed him Chief Justice. At the time some said that Menzies wanted him out of the way, but it is more likely that Barwick was simply the best person available for the post. Barwick held the office for a record 17 years.

By today's standards he was a very conservative Chief Justice, seeing himself as applying the law rather than as interpreting or making it. His judgments were known for favouring the interests of individuals or companies over those of the state, and particularly for endorsing tax minimising schemes, including perhaps that of his own family company, Mundroola Pty Ltd.

One of his major monuments was the new glass and ferro- concrete High Court building opened in 1980 whose fountains and overblown magnificence earned it the sobriquet "Gar's Mahal". Failing eyesight brought on Barwick's retirement in 1981, at which he quipped, after Sir John Harvey: "Justice may be blind, but justices may not."

During the Whitlam Labor governments, 1972-75, both government and opposition were deeply embroiled in dubious political manoeuvrings. These led to Labor's loss of control in the Senate and in October and November 1975 to the persistent suspension of supply bills, a ploy which threatened to freeze the administration of the country. In these circumstances, and amid great public uproar, the Governor-General, Kerr, sacked the Whitlam government and forced an election.

Barwick remained studiously aloof from the affair, though Kerr was a friend, and a fellow lawyer and Fort Street old boy. When Kerr eventually officially asked his opinion, he advised that Kerr's planned course was legal. And so it was. As to the political advisability of Kerr's action, given that Labor still commanded a majority in the lower house, there will always be argument. It is indisputable, however, that in the ensuing election on 13 December Labor suffered defeat by a landslide.

Since then Barwick has remained a controversial figure. In retirement he wrote a book justifying Kerr's decision, Sir John Did His Duty (1983), and his own apologia, Radical Tory (1995), this latter a serene defence against the charges levelled against him in David Marr's hostile biography Barwick (1980), the only one yet written.

For much of his life Garfield Barwick was an ardent skier, horseman, conservationist, gardener, fisherman and yachtsman. In more ways than one, his life bore out his old school's motto: "Every man is the maker of his own fortune."

Carl Bridge

Garfield Edward John Barwick, barrister: born Sydney 22 June 1903; called to New South Wales Bar 1927; KC 1941; called to Victorian Bar 1945; KC (Vic) 1945; Kt 1953; called to Queensland Bar 1958; QC Queensland 1958; Attorney-General, Commonwealth of Australia 1958-64; Minister for External Affairs 1961-64; PC 1964; Chief Justice of Australia 1964-81; GCMG 1965; AK 1981; married 1929 Norma Symons (one son, one daughter); died Sydney 13 July 1997.