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The justice of Sir Francis Gerard Brennan

  • 16 June 2022
Francis Gerard Brennan, who died on June 1 at the age of 94, will be farewelled in a Requiem Mass at St. Mary’s Church, North Sydney on June 17. He was a Justice of the Federal Court and the High Court of Australia, and Chief Justice of the High Court 1995-1998.

The 1980s and 1990s were his most visible decades for his involvement in major decisions of the High Court of which Mabo was only one. Early in his time on the High Court, (1983) Brennan J was in the majority when a four to three majority of the seven judges of the Court held that the federal government had legitimately prevented construction of the dam, and that the World Heritage Act authorized the federal government to do that under the "external powers" powers granted to it in the Constitution.

But there were many other less newsworthy adjudications in the 1980s where Brennan J and others made significant contributions. The Barwick High Court, over two decades, had a substantial record of tax judgements and those judgements had a reputation for frequently finding in favour of the taxpayer and against the Commissioner. In the decade after Barwick retired, a great deal of time and effort was put into regularizing interpretations of tax law and Brennan J was one of the leading figures in this correction to the path of adjudications.

His first year as a Federal Court judge was ground-breaking: he was appointed to lead and shape the Administrative Appeals Tribunal. In that role, his impact was lasting. Administrative Appeals was a new jurisdiction and ripe for Brennan’s influence which it duly received.

But the highest profile judgement was still to come: Mabo. Brennan J had experience in his career at the Bar and on the Bench to remotely prepare him for the Mabo case. In brief what it came down to was this: the English Common Law recognises ownership title when the occupiers of lands can demonstrate proprietorship within a legal system that may not be English but is still recognized by those living in it.

'To meet and deal with regularly, Ged did not strike anyone as a firebrand. And he wasn’t. But it didn’t take much time to see that the embers of his passion for justice were far from extinguished. But he had a disarming peace about him that was both alert and attentive, listening for whatever might be the next move into