Sir Gerard Brennan, the High Court chief justice who oversaw the Mabo decision, dies at 94

Chris Merritt                 2 June 2022

Published in the Australian Newspaper

Sir Gerard Brennan, the former Chief Justice who was primarily responsible for recognising Aboriginal native title, has died at the age of 94, triggering widespread praise for his role in overturning the concept of terra nullius.

He was described by Attorney-General Mark Dreyfus as a brilliant, compassionate man whose devotion to the law had made Australia a better, fairer and more decent nation.

“Sir Gerard’s lead judgment on the Mabo case recognised for the first time under Australian law that Aboriginal and Torres Strait Islander peoples had lived in Australia for thousands of years and their rights to their land according to their own laws and customs not only predated, but survived, settlement and continue to this day,” Mr Dreyfus said.

Before Mabo, Australia operated under the legal fiction of terra nullius – that this continent was an empty land, owned by nobody until European settlement.

Sir Gerard joined the High Court in 1981 after a long career in which he had been the inaugural president of the Administrative Appeals Tribunal, a judge of the Federal Court, president of the Queensland Bar Association and president of the Australian Bar Association.

He was appointed Chief Justice of the High Court in 1995 and served in that position until 1998 when he reached the mandatory retirement age of 70.

During his seventeen years on the High Court he recruited large numbers of gifted young lawyers to work as his associates where he fostered their legal skills. Many went on to hold senior positions in the law.

“He taught me what it was to be a lawyer,” said Professor Keyzer.

Others who worked as Sir Gerard’s associates include Anthony Cavanough and James Elliott who are now judges of the Supreme Court of Victoria, Roslyn Atkinson formerly of the Supreme Court of Queensland, and Victorian magistrate Peter Power.

Professor Keyzer said that while Sir Gerard would long be remembered for the Mabo judgment, many of his other rulings had been recognised as being highly persuasive in common law courts all over the world.

While a devout Catholic, Professor Keyzer said Sir Gerard never allowed his personal religious belief to interfere with his judicial responsibilities.

“He also needs to be given credit for the extraordinary leadership he demonstrated in a notoriously split High Court during the time he was Chief justice,” he said.

“It is well known that the jurisprudence relating to the implied freedom to discuss political and government affairs was in a state of chaos when he took the helm of the court.

“Yet the court then produced its judgment in Lange v ABC which was unanimous” on how this doctrine should operate, Professor Keyzer said.

His leadership meant he was able to bring together judges who had to concede issues of doctrine in order to reach common ground, he said.

Sir Gerard’s son, Frank, who is a Jesuit priest and constitutional lawyer, said his father’s death at the age of 94 had been expected “and he did it well”.

“He was a very fine judge and an extraordinarily proud Australian, a tireless worker who, with seven children, often had to leave parenting to his beloved Patricia,” Father Brennan said.

“In later years he dedicated himself completely to her in gratitude and became an extraordinarily engaged grandfather and great grandfather.

“He constantly wrestled in his conscience with the relationship between law and justice and he took his judicial oath with all seriousness possible,” Father Brennan said.

Although entitled to a state funeral, Father Brennan said his father had indicated he wanted a requiem Mass of the Catholic Church. The High Court plans a ceremonial sitting in August to honour the former Chief Justice.

Australian Bar Association president Matt Collins said Sir Gerard was one of the finest jurists this country had produced.

“He inspired generations of lawyers with his intellect but also his deep sense of humanity,” Dr Collins said.

Law Council president Tass Liveris said Sir Gerard had made a remarkable contribution to the law and jurisprudence and his legacy would echo long into the future.