Sir Garfield Edward John Barwick, AK GCMG QC (22 June 1903 – 13
July 1997) was an Australian judge who was the seventh and longest
serving Chief Justice of Australia, in office from 1964 to 1981. He
had earlier been a Liberal Party politician, serving as a minister in
Menzies Government from 1958 to 1964.
Barwick was born in Sydney, and attended Fort Street High School
before going on to study law at the University of Sydney. He was
called to the bar in 1927 and became one of Australia's most prominent
barristers, appearing in many high-profile cases and frequently before
the High Court. He served terms as president of the NSW Bar
Association and the Law Council of Australia. Barwick entered politics
only at the age of 54, winning election to the House of
Representatives at the 1958 Parramatta by-election. Prime Minister
Robert Menzies made him Attorney-General by the end of the year, and
in 1961 he was additionally made Minister for External Affairs.
In 1964, Menzies nominated Barwick as his choice to replace the
Owen Dixon as Chief Justice. Over the next 17 years, the
Barwick court would decide many significant constitutional cases,
including a significant broadening of the corporations power and
several cases regarding the constitutional basis of taxation. Barwick
also played a small but significant role in the 1975 constitutional
crisis, advising Governor-General John Kerr that it was within his
powers to sack Prime Minister Gough Whitlam. He retired from the court
at the age of 77, but remained a public figure until his death at the
age of 94. Outside of his professional career, he also served as the
inaugural president of the Australian Conservation Foundation.
1 Early life and education
2 Legal career
4 Chief Justice
4.1 Privy Council
5 Personal life
9 External links
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
Sydney with a
University Medal in law.
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. At the beginning of World War 2, Barwick's
challenges to the National Security Act 1939, which centralised the
power to the Australian government, propelled him to the front rank of
He became publicly prominent 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, the judges commended him for the brilliance of his arguments and
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.
A member of the Liberal Party, Barwick was elected to the House of
Representatives at the 1958 Parramatta by-election, beginning his
parliamentary career at the relatively late age of 54. He was
re-elected in the general elections of 1958, 1961, and 1963.
After the 1958 election, Barwick was promoted to cabinet as
Attorney-General, replacing the retiring Neil O'Sullivan. In that
position, he guided through legislation amending the Matrimonial
Causes Act and the Crimes Act, and established a model for restrictive
trade practices legislation. He also gained public notice for his role
in the case of an alleged Estonian war criminal, Ervin Viks, who had
settled in Australia and was being pursued by the Soviet Union.
Barwick refused to accept the USSR's extradition request, as there was
no extradition treaty between the two countries; Viks had passed
immigration screening processes and it was argued any such extradition
would undermine Australian sovereignty. After the 1961 election,
Barwick was additionally made Minister for External Affairs. He led
the Australian delegation to the General Assembly of the United
Nations for its 15th, 17th, and 18th sessions.
For some time, Barwick was seen as a likely successor to Robert
Menzies as Liberal leader and prime minister. When the news broke that
he was entering parliament, Frank Browne confidently wrote:
For Harold Holt, it means no leadership. For the New South Wales
Cabinet aspirants it means no Cabinet. All in all, to the Liberal
Federal politicians, the entry of Sir
Garfield Barwick means exactly
what the acquisition of a Derby winner means to the other stallions in
the stud. Prosperity in the stud, but the first step towards the
boiling down of the other stallions.
However, Barwick struggled to adapt to the cut and thrust of political
life. There were reports that he was reduced to tears by a vitriolic
debate over what would become the Crimes Act 1959, which he later
confirmed had been accurate. In retirement, Menzies said that he
"didn't understand parliament [...] he was a disappointing
politician". An opinion poll in 1960 found that only three percent
of the general public supported him as Menzies' replacement. He had
little support from other Liberal MPs, and speculation about his
leadership prospects was largely media-driven. Barwick's elevation to
Court further "cleared the space" for Harold Holt, the deputy
leader, and he would eventually replace Menzies as leader unopposed in
Barwick as Chief Justice
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
Barwick was one of only eight justices of the High
Court to have
served in the
Parliament of Australia
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
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
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.
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".
Barwick retired from the bench in 1981, a few months after passing Sir
John Latham's record as the longest-serving Chief Justice. 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 memoir A Radical Tory.
Barwick was appointed a Privy Counsellor in 1964 and sat as a member
of the Judicial Committee of the
Privy Council on 22 occasions,
between 1966, and 1980. Barwick insisted on an amendment to
Privy Council procedure to allow dissent, however he exercised
that only once. The appeals mostly related to decisions from other
Commonwealth countries, although they occasionally included appeals
from a State Supreme Court.
Barwick supported the passage of the
Privy Council (Limitation of
Appeals) Act 1968, which closed off appeals from the High
Court to the
Judicial Committee of the Privy Council. He said that "Australia
needed to make its own legal mistakes". However, it remained possible
to appeal to the
Privy Council from state supreme courts until the
passage of the Australia Act 1986.
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.
In June 1953, he was made a
Knight Bachelor, "in recognition of
service to the Public service".
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".
^ James Jupp (2001-10-01). The Australian People: An Encyclopedia of
the Nation, its People and their Origins. Cambridge University Press.
p. 234. ISBN 978-0-521-80789-0.
^ Rowse, A.L., All Souls in my time, 1993
^ The International and Comparative Law Quarterly, Vol. 17, No. 3
(Jul., 1968), pp. 782-783
^ David Fraser Daviborshch's Cart: Narrating the Holocaust in
Australian War Crimes Trials, University of Nebraska Press, Lincoln
Ne., 2011, pp56–7
^ Frame (2005), p. 122.
^ Frame (2005), p. 123.
^ a b Frame (2005), p. 125.
^ Frame (2005), p. 124.
^ a b c d Murphy, Damien (2010-01-01). "How Barwick lost his would-be
Sydney Morning Herald. Fairfax Media. Retrieved
High Court of Australia
High Court of Australia Archived 18 February 2010 at the Wayback
^ International court of Justice - all judges ad hoc
Strickland v Rocla Concrete Pipes Ltd
Strickland v Rocla Concrete Pipes Ltd  HCA 40, (1971) 124 CLR
^ NSW v Commonwealth (Seas and Submerged Lands case)  HCA 58,
(1975) 135 CLR 337, High
^ WA v Commonwealth (First Territory Senators case)  HCA 46,
(1975) 134 CLR 201, High
Queensland v Commonwealth
Queensland v Commonwealth (Second Territory Senators case) 
HCA 60, (1977) 139 CLR 585, High
Russell v Russell  HCA 23, (1976) 134 CLR 495, High Court
^ Cormack v Cope  HCA 28, (1974) 131 CLR 432, High Court
^ Victoria v Commonwealth (Petroleum and Minerals Authority case)
 HCA 39, (1975) 134 CLR 81, High
^ Mason, Anthony (2001). "Barwick Court". In Blackshield, Tony; Coper,
Michael; Williams, George. The Oxford Companion to the High
Australia. South Melbourne, Victoria: Oxford University Press.
^ "search for 'Garfield Barwick'". www.BAILII.org.
^ Commissioner of Inland Revenue v Mutual Investment Company Limited
 UKPC 19,  1 AC 587,
Privy Council (on appeal from Hong
^ Cosmic Insurance Corporation Limited v Khoo Chiang Poh  UKPC
Privy Council (on appeal from Singapore)
^ Gleeson, M (2008). "The
Privy Council – An Australian Perspective"
^ Her Majesty's Attorney General for Guyana v Nobrega  UKPC 24,
Privy Council (on appeal from Guyana)
^ South Coast Basalt Pty Ltd v R. W. Miller and Co Pty Ltd  UKPC
Privy Council (on appeal from New South Wales)
^ Caratti Holding Co Pty Ltd v Zampatti  UKPC 24, Privy Council
(on appeal from Western Australia)
^ Frame (2005), p. 217.
^ Obituary: Sir
Garfield Barwick - People - News - The Independent
^ House of Representatives, Motion of Condolence 25 August 1997
^ Parliamentary Handbook
^ It’s an Honour:
^ It’s an Honour: GCMG
^ It’s an Honour: AK
Garfield Barwick (1995). A Radical Tory: Garfield Barwick's
Reflections and Recollections. ISBN 978-1-86287-236-3.
David Marr (1980). Barwick. ISBN 978-0-86861-058-0.
Tom Frame (2005). The Life and Death of Harold Holt. Allen &
Unwin. p. 122.
Attorney-General’s Department (Commonwealth of Australia) Sir
Sir Owen Dixon
Chief Justice of Australia
Sir Harry Gibbs
Attorney-General of Australia
Minister for External Affairs
Parliament of Australia
Member for Parramatta
Chancellor of Macquarie University
1967 – 1978
Justices of the High
Court of Australia
Justices shown in order of appointment
ISNI: 0000 0000 6306 1602
BNF: cb12285256t (da