Harry Gibbs
Encyclopedia
Sir Harry Talbot Gibbs, GCMG, AC, KBE, QC
Queen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...

 (7 February 191725 June 2005) was Chief Justice
Chief Justice
The Chief Justice in many countries is the name for the presiding member of a Supreme Court in Commonwealth or other countries with an Anglo-Saxon justice system based on English common law, such as the Supreme Court of Canada, the Constitutional Court of South Africa, the Court of Final Appeal of...

 of the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...

 from 1981 to 1987 after serving as a member of the High Court between 1970 and 1981. He was known as one of Australia's leading federalist judges although he presided over the High Court when decisions such as Koowarta v Bjelke-Petersen
Koowarta v Bjelke-Petersen
Koowarta v Bjelke-Petersen was a significant court case decided in the High Court of Australia on 11 May 1982. It concerned the constitutional validity of parts of the Racial Discrimination Act 1975, and the discriminatory acts of the Government of Queensland in blocking the purchase of land by...

in 1982 and Commonwealth v Tasmania
Commonwealth v Tasmania
Commonwealth v Tasmania 158 CLR 1, was a significant Australian court case, decided in the High Court of Australia on 1 July 1983. The case was a landmark decision in Australian constitutional law, and was a significant moment in the history of conservation in Australia...

expanded the powers of the Commonwealth at the expense of the states. Gibbs dissented from the majority verdict in both cases.

Early career 1917-1970

Harry Talbot Gibbs was educated at the Ipswich Grammar School
Ipswich Grammar School
Ipswich Grammar School is an independent, non-denominational, day and boarding school for boys, located in Ipswich, a city situated on the Bremer River in South East Queensland, Australia...

 and later at Emmanuel College
Emmanuel College, University of Queensland
Emmanuel College, University of Queensland is a residential college of the University of Queensland in St Lucia, Queensland, Australia. It was the first residential college established at the University of Queensland and the ninth college nationally...

 at the University of Queensland
University of Queensland
The University of Queensland, also known as UQ, is a public university located in state of Queensland, Australia. Founded in 1909, it is the oldest and largest university in Queensland and the fifth oldest in the nation...

. He graduated from the latter with a Bachelor of Arts with honours in 1937 and a Bachelor of Laws in 1939. The same year he was admitted to the bar, but his legal career was interrupted by World War II and he served in the Australian Military Forces
Australian Military Forces
The Australian Military Forces was the official name of the Army of Australia from 1916 to 1980. This encompassed both the "regular army", and the forces, variously known during this period as the Militia, the Citizen Military Forces and the Australian Citizen Military Force .Initially this...

 from 1942 to 1945 and in the Australian Imperial Force
Australian Imperial Force
The Australian Imperial Force was the name given to all-volunteer Australian Army forces dispatched to fight overseas during World War I and World War II.* First Australian Imperial Force * Second Australian Imperial Force...

 in Papua New Guinea
Papua New Guinea
Papua New Guinea , officially the Independent State of Papua New Guinea, is a country in Oceania, occupying the eastern half of the island of New Guinea and numerous offshore islands...

, attaining the rank of Captain. Gibbs was granted a Master of Laws degree as a result of his work on the legal system while in Papua New Guinea. He married Muriel Dunn in 1944 and the couple had three daughters and a son.

Stationed in Papua New Guinea, Gibbs developed an interest in its legal system and was awarded a Master of Laws based on his research. He returned to the practice of law following the war and was appointed Queen's Counsel
Queen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...

 in 1957, while also lecturing in law at the University of Queensland.

Gibbs served as a judge on the Supreme Court of Queensland
Supreme Court of Queensland
The Supreme Court of Queensland, which is based at the Law Courts Complex, is the superior court for the Australian State of Queensland and sits around the middle of the Australian court hierarchy...

 from 8 June 1961 until 24 June 1967. He was the first law graduate of the University of Queensland to join that Court. In 1967 Gibbs was appointed to the Federal Court of Bankruptcy and the ACT Supreme Court. He was appointed as a judge at a relatively early age of 44 due to his reputation at the bar. During his service, he was appointed as a Royal Commissioner in the National Hotel Royal Commission following allegations that the Hotel was the centre of a network of vice including a call girl ring with support of senior members of the Queensland Police Force. Gibbs found that the allegations were not correct. Critics such as Evan Whitton
Evan Whitton
Evan Whitton is an Australian journalist who currently is a columnist the online legal journal Justinian. He was editor of The National Times from 1978 to 1981, Chief Reporter and European Correspondent for The Sydney Morning Herald, Reader in Journalism at the University of Queensland, Journalist...

 and Richard Ackland
Richard Ackland
Richard Ackland is an Australian journalist, publisher and lawyer, who has won many awards for his reporting.Ackland graduated with degrees in Economics and Law in the early 1970s and was admitted as a solicitor of the Supreme Court of New South Wales before going on to pursue a career in...

 claim that Gibbs inappropriately followed the hearsay rules excluding a great deal of evidence despite the fact that Royal Commissioners are not bound to follow such rules. He also chaired a committee of inquiry into the expansion of the Australian sugar
Sugar
Sugar is a class of edible crystalline carbohydrates, mainly sucrose, lactose, and fructose, characterized by a sweet flavor.Sucrose in its refined form primarily comes from sugar cane and sugar beet...

 industry.

High Court Justice 1970-1981

In 1970, Gibbs joined the High Court of Australia replacing Sir Frank Kitto
Frank Kitto
Sir Frank Walters Kitto, AC, KBE, QC , Australian judge, was a Justice of the High Court of Australia.Kitto was born in Melbourne in 1903, but his family moved to Sydney, when his father James Kitto became the Deputy Director of Posts and Telegraphs in New South Wales. There he was educated at...

. During his early years on the Court, there was high turnover of judges, with Sir Victor Windeyer
Victor Windeyer
Major General Sir William John Victor Windeyer KBE CB DSO and Bar PC KC Australian judge, soldier and educator, was a Justice of the High Court of Australia....

 retiring in 1972, Sir William Owen dying in 1972, Sir Cyril Walsh
Cyril Walsh
Sir Cyril Ambrose Walsh KBE , Australian judge, was a Justice of the High Court of Australia.Walsh was born in Sydney, New South Wales, the son of Michael and Mary Walsh. He grew up in the western suburb of Werrington, where his father owned a dairy farm...

 dying in 1973 and Sir Douglas Menzies
Douglas Menzies
Sir Douglas Ian Menzies KBE , Australian judge, was a Justice of the High Court of Australia.-Biography:Menzies was born in Ballarat, Victoria, in 1907. He was educated at Hobart High School and Devonport High School in Tasmania, before returning to Victoria to study at the University of Melbourne...

 dying in 1974. As a result of this high turnover, Gibbs rapidly became second in seniority behind Sir Garfield Barwick
Garfield Barwick
Sir Garfield Edward John Barwick, was the Attorney-General of Australia , Minister for External Affairs and the seventh and longest serving Chief Justice of Australia...

.

Gibbs' first significant case was Strickland v Rocla Concrete Pipes Ltd
Strickland v Rocla Concrete Pipes Ltd
Strickland v Rocla Concrete Pipes Ltd 124 CLR 468, also known as the Concrete Pipes Case, is a High Court of Australia case that discusses the scope of the corporations power in section 51 of the Australian Constitution...

 in 1971, a landmark trade practices case which significantly expanded the powers of the Commonwealth under the corporations power. He was in the minority.

In the Curran case decided in 1974, Gibbs was part of the majority ruling in favour of the legality of a tax minimisation scheme. As a result of the proliferation of similar schemes, John Howard
John Howard
John Winston Howard AC, SSI, was the 25th Prime Minister of Australia, from 11 March 1996 to 3 December 2007. He was the second-longest serving Australian Prime Minister after Sir Robert Menzies....

 as Treasurer
Treasurer
A treasurer is the person responsible for running the treasury of an organization. The adjective for a treasurer is normally "tresorial". The adjective "treasurial" normally means pertaining to a treasury, rather than the treasurer.-Government:...

 introduced retrospective legislation which was subsequently passed by the parliament.

The case of Victoria v the Commonwealth and Hayden in 1975 or the AAP case examined the nature of the appropriations power (section 81) and the incidental power (section 51 (xxxix)). The Appropriation Act (Number 1) provided for certain sums to be appropriated to the Australian Assistance Plan to enable grants to be made to Regional Councils for Social Development. The Victorian Government disputed the powers of the Commonwealth to legislate for such purposes. In his dissenting judgement, Justice Gibbs held that the words of Section 61 "make it clear that the Executive cannot act in respect of a matter which falls entirely outside the legislative competence of the Commonwealth".

Gibbs was part of a 6:1 majority in Black's case in 1981 that found that the Commonwealth could provide financial assistance to non-Government schools.

Chief Justice of the High Court 1981-1987

In 1981, Gibbs was appointed Chief Justice after the retirement of Sir Garfield Barwick. The first notable case to come before his court was Koowarta v Bjelke-Petersen
Koowarta v Bjelke-Petersen
Koowarta v Bjelke-Petersen was a significant court case decided in the High Court of Australia on 11 May 1982. It concerned the constitutional validity of parts of the Racial Discrimination Act 1975, and the discriminatory acts of the Government of Queensland in blocking the purchase of land by...

, decided in 1982. This case upheld the Racial Discrimination Act 1975
Racial Discrimination Act 1975
The Racial Discrimination Act 1975 is a statute passed by the Australian Parliament during the Prime Ministership of Labor Gough Whitlam....

with a majority of the Court finding that the external affairs power
Section 51(xxix) of the Australian Constitution
Section 51 of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of Australia the right to legislate with respect to "external affairs"....

 allowed the Commonwealth to pass such legislation as a consequence of Australia's obligations under the Convention on the Elimination of All Forms of Racial Discrimination
Convention on the Elimination of All Forms of Racial Discrimination
The International Convention on the Elimination of All Forms of Racial Discrimination is a United Nations convention. A second-generation human rights instrument, the Convention commits its members to the elimination of racial discrimination and the promotion of understanding among all races...

. Gibbs dissented, finding that the Commonwealth might have such powers only in relationships with other nations and only if the treaty arranged with other nations was "international in character".

The external affairs power was expanded further in the case of Commonwealth v Tasmania
Commonwealth v Tasmania
Commonwealth v Tasmania 158 CLR 1, was a significant Australian court case, decided in the High Court of Australia on 1 July 1983. The case was a landmark decision in Australian constitutional law, and was a significant moment in the history of conservation in Australia...

in 1983 known as the Tasmanian Dams case. The High Court upheld the World Heritage Properties Conservation Act 1983
World Heritage Properties Conservation Act 1983
The World Heritage Properties Conservation Act 1983 was an Act of the Parliament of Australia which provided for certain protections for World Heritage listed places....

passed by the Commonwealth Parliament to stop the Government of Tasmania
Government of Tasmania
The form of the Government of Tasmania is prescribed in its Constitution, which dates from 1856, although it has been amended many times since then...

 from building a dam on the Franklin River
Franklin River
The Franklin River lies in the Franklin-Gordon Wild Rivers National Park at the mid northern area of the Tasmanian Wilderness World Heritage Area. Its source is situated at the western edge of the Central Highlands and it continues west towards the West Coast of Tasmania...

 which had been nominated for world heritage
World Heritage Site
A UNESCO World Heritage Site is a place that is listed by the UNESCO as of special cultural or physical significance...

 status. The majority of the court found that the external affairs power enabled the Commonwealth Parliament to pass such legisaltion under the Convention Concerning the Protection of the World Cultural and Natural Heritage. Gibbs again dissented, finding that the use of the external affairs power should be limited by the status of Australia as a federation and if the Commonwealth was granted too much power under section 51 of the Australian Constitution
Section 51 of the Australian Constitution
Section 51 of the Constitution of Australia grants legislative powers to the Australian Parliament only when subject to the constitution. When the six Australian colonies joined together in Federation in 1901, they became the original States and ceded some of their powers to the new Commonwealth...

, it would upset the "Federal balance".

The latter part of Gibbs' tenure as Chief Justice was dominated by allegations of impropriety against Lionel Murphy
Lionel Murphy
Lionel Keith Murphy, QC was an Australian politician and jurist who served as Attorney-General in the government of Gough Whitlam and as a Justice of the High Court of Australia from 1975 until his death.- Personal life :...

, a fellow justice of the High Court. The Age
The Age
The Age is a daily broadsheet newspaper, which has been published in Melbourne, Australia since 1854. Owned and published by Fairfax Media, The Age primarily serves Victoria, but is also available for purchase in Tasmania, the Australian Capital Territory and border regions of South Australia and...

newspaper published transcriptions of coversations between Murphy and NSW solicitor Morgan Ryan, alleging an improper relationship between the two men in February 1984. Two Senate Committees were established to look into the matter along with the Stewart Royal Commission in NSW to look into the tapes. A lengthy court case ensued resulting in Murphy's acquittal.

When the Stewart Royal Commission published a secret volume of conversations between Murphy Ryan, Gibbs insisted on reading the Royal Commission Report and advised Lionel Bowen
Lionel Bowen
Lionel Frost Bowen AC , Australian politician, was a senior Labor Party figure, serving in the ministries of Gough Whitlam and Bob Hawke...

, the Commonwealth Attorney-General, that some justices intended making public their reluctance to sit with Murphy in 1986.

Lionel Bowen set up a Parliamentary Commission of Inquiry consisting of three retired judges in 1986 to inquire into the claims. However, this Commission was soon abandoned as Murphy advised that he had inoperable cancer. Against Gibbs' strong advice, Murphy sat for a week as a Justice before his death in 1986.

Gibbs left the High Court of Australia upon reaching the mandatory retirement age of 70. He was widely regarded as a healer after Sir Garfield Barwick's controversial stint as Chief Justice. He also had an international reputation, with Lord Denning
Alfred Denning, Baron Denning
Alfred Thompson "Tom" Denning, Baron Denning, OM, PC, DL, KC , commonly known as Lord Denning, was a British soldier, mathematician, lawyer and judge. He gained degrees in mathematics and law at Oxford University, although his studies were disrupted by his service in the First World War...

 stating "I would rank him as one of the greatest of your chief justices, rivalling even Sir Owen Dixon."

Retirement 1987-2005

After his retirement from the High Court, Gibbs continued to serve in several important roles. In 1987 he was 'Judge-in-Residence' at the University of Queensland
University of Queensland
The University of Queensland, also known as UQ, is a public university located in state of Queensland, Australia. Founded in 1909, it is the oldest and largest university in Queensland and the fifth oldest in the nation...

. He was the Chairman of the Parliamentary Judges Commission in 1989 resulting from the removal of Justice Angelo Vasta from the Queensland Supreme Court. He was Vice-President of the Kiribati
Kiribati
Kiribati , officially the Republic of Kiribati, is an island nation located in the central tropical Pacific Ocean. The permanent population exceeds just over 100,000 , and is composed of 32 atolls and one raised coral island, dispersed over 3.5 million square kilometres, straddling the...

 Court of Appeal between 1988 and 1999 and the Review of Commonwealth Criminal Law between 1987 and 1991. As well, he chaired the Inquiry into Community Needs and High Voltage Transmission Development Commission.

In the early 1990s Gibbs was intimately involved with the foundation of Australians for Constitutional Monarchy
Australians for Constitutional Monarchy
Australians for Constitutional Monarchy is a group that aims to preserve Australia's current constitutional monarchy, with Elizabeth II as Queen of Australia...

 (ACM), an organisation whose aim is to defend Australia's constitutional monarchy
Constitutional monarchy
Constitutional monarchy is a form of government in which a monarch acts as head of state within the parameters of a constitution, whether it be a written, uncodified or blended constitution...

. As a founder of the movement he was both a signatory of the ACM charter and a member of its Foundation Council. His beliefs about the role of The Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...

 in Australian society saw him campaign for the NO case in the 1999 constitutional referendum.

Gibbs' activism in this area was not limited to the ACM. In 1992 he accepted the role of President of the Samuel Griffith Society
Samuel Griffith Society
The Samuel Griffith Society was founded by former Chief Justice Sir Harry Gibbs, John Stone and others in 1992. Named after Sir Samuel Griffith, one of the architects of the Australian Constitution, the society describes its prime role: ".....

. Here he set the tone of the society when he presented a paper entitled "Re-Writing the Constitution".

Gibbs' death was announced only after his cremation had taken place, in Sydney on 28 June 2005. At his funeral the eulogy was delivered by his former Associate, David Jackson QC. He had, before his death, forbidden the convening of a state funeral in his honour.

Honours

Harry Gibbs was knighted as a Knight Commander of the Order of the British Empire
Order of the British Empire
The Most Excellent Order of the British Empire is an order of chivalry established on 4 June 1917 by George V of the United Kingdom. The Order comprises five classes in civil and military divisions...

 (KBE) on 22 September 1970.

On 3 April 1981, he was made a Knight Grand Cross of the Order of St Michael and St George
Order of St Michael and St George
The Most Distinguished Order of Saint Michael and Saint George is an order of chivalry founded on 28 April 1818 by George, Prince Regent, later George IV of the United Kingdom, while he was acting as Prince Regent for his father, George III....

 (GCMG).

In the Queen's Birthday Honours of 1987, he was appointed a Companion of the Order of Australia
Order of Australia
The Order of Australia is an order of chivalry established on 14 February 1975 by Elizabeth II, Queen of Australia, "for the purpose of according recognition to Australian citizens and other persons for achievement or for meritorious service"...

 (AC).

Judicial decisions


Other


Further reading

  • Joan Priest, Sir Harry Gibbs: Without Fear or Favour, Scribblers Publishing, Mudgeeraba Queensland 1995 ISBN 0-646-23693-8
  • Enid Mona Campbell and H. P. Lee, The Australian Judiciary Cambridge University Press ISBN 0-521-81158-9
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