Sir Ronald Wilson's life in compartments

Sir Ronald Wilson: A Matter of Conscience Western Australian legal academic Antonio Buti has written a detailed biography of the late Sir Ronald Wilson, that State’s first High Court judge. A Matter of Conscience (UWA Press 2007) surveys Wilson’s three major legal and political roles — first as a West Australian crown prosecutor and solicitor general; then as a High Court judge fiercely protective of state rights; and finally as a national social justice advocate, especially through his joint chairing of the Human Rights Commission’s report on the stolen generation, Bringing Them Home.

The backdrop for all three phases is Wilson’s family and his church — the family from whom he often had to be absent, catching the 'red eye’ across the continent for work for years on end, and the Uniting Church, which he helped found as a leading Presbyterian and over which he presided while still serving as a High Court judge.

Buti acknowledges the many unresolved tensions between the public roles and private persona of Wilson, once described by the legendary Reverend Jim Downing as 'the biggest little man I have ever known’. His fellow judge and state solicitor general Sir Daryl Dawson observed of the 5’ 4” Wilson: 'Any impression his small stature may have given was immediately eclipsed by the strength of his personality.'

Wilson was a ruthless prosecutor. As a judge, he stood firm on state rights even when such rights would interfere with the basic rights and liberties of Australian Aboriginals. But on retirement from the bench, as a social justice advocate, he espoused Aboriginal rights in the face of strong antipathy and government intransigence. Buti gives the reader copious quotes from Wilson’s supporters and critics at each stage of his public life, allowing the reader to decide whether Wilson got the balance right.

Wilson lived with tension all his public life as he moved from advocate of state rights to judge and ultimately to advocate of human rights. At his swearing in, he paid tribute 'to all those brothers and sisters in the law who have journeyed with me from time to time and who have provided me with such rich personal relationships, for which I shall always be grateful’.

In his early professional life such relationships were forged with police and lawyers, and then with judges. Later they were forged with members of the stolen generation who held him in high regard. These relationships helped shape his perspective on the legal or political issue of the day and fortified him in the stands he took. At all stages, he felt very at home and supported in the Uniting Church.

On a final court of appeal, judges confront hard cases in which law, morality and policy seem irreconcilable. Judges and advocates have distinct roles to play in recasting the law so that justice according to law produces outcomes more acceptable to the formed and informed conscience of those seeking to resolve disputes in society. Wilson’s judgment in Mabo No. 1 and his public advocacy following Mabo No. 2 and Wik provide a good case study.

When asked after his retirement from the bench if his Christianity influenced him as a judge, Wilson replied: 'I've been rather firm in my belief that my integrity as a judge required me to apply this rigorous intellectual discipline … to the legal sources and to arrive at a solution that satisfied my mind. And this can be demonstrated by a couple of cases when the conclusion that I expressed in my judgement would not have accorded with my heart. Particularly, in the overruling of the Queensland legislation in Mabo No. 1, I was glad the majority was 4–3. I was one of the three so I think I'm pretty firm on that answer.'

The Mabo litigation had commenced in Queensland in 1982. When Sir Joh Bjelke-Petersen's legal advisers told him in 1985 that the Torres Strait Islanders may have a case, he introduced the Queensland Coastal Islands Declaratory Bill to the Queensland parliament. Its effect was to wipe out any property rights held by Torres Strait Islanders when the Torres Strait Islands became part of the colony of Queensland, and ensure that the only property rights which existed in the Torres Strait were those granted by the crown.

If the law applied by the courts did recognise native title rights which existed before colonisation and which survived the assertion of crown sovereignty, this Bill tried to do away with all such rights and interests. By 4–3, the High Court found the Queensland law in conflict with the Commonwealth Racial Discrimination Act.

In dissent Wilson said: 'The Queensland Act purports to deny, retrospectively, the survival of those rights after the annexation and to exclude any question of compensation in respect of the loss of them. But if there are no other persons of another race who are shown to enjoy rights of the same kind as those of which the plaintiffs have been deprived, then it will be impossible to find a foothold for s.10(1) of the Commonwealth Act.

'On the contrary, its effect is to remove a source of inequality formerly existing between the plaintiffs and persons of another race because … the plaintiffs were alone in the enjoyment of traditional rights. Henceforth, by virtue of the assumed operation of the Queensland Act, the plaintiffs will enjoy the same rights with respect to the ownership of property and rights of inheritance as every other person in Queensland of whatever race. There will be equality before the law. Of course, a deep sense of injustice may remain.'

In good conscience, Sir Ronald, as a public advocate, would later welcome the High Court's decision in Mabo No. 2, knowing that such a decision would not have followed had the court followed his line of reasoning in Mabo No. 1.

No-one is likely to conclude that Wilson struck the right balance at every stage in his public life. John Button, one of the wronged criminals from Wilson’s zealous prosecution days, came to his funeral and opined: 'Wilson would have had some guilt at having been the person that successfully prosecuted some innocent people … and this drove him to do good deeds such as his human rights work.'

Buti disputes the guilt. Wilson lived life with a passion for justice and right according to law. Justice according to law is a demanding life task for the advocate or for the judge, and doubly so for the advocate-turned-judge-turned-advocate-again.

Frank BrennanFrank Brennan SJ AO is a professor of law in the Institute of Legal Studies at the Australian Catholic University, professor of human rights and social justice at the University of Notre Dame, and Professorial Visiting Fellow, Faculty of Law, University of NSW.



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