Obituary: A man of honour

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This photo shows the-then High Court chief justice Sir Gerard Brennan, in his place of work, Australia’s highest court. Sir Gerard presided over the historic Mabo decision, which overturned the concept of terra nullius that had prevailed throughout Australia’s modern history. PHOTO: AAP, HIGH COURT OF AUSTRALIA

Few sons give the homily at their father’s funeral. But well-known Australian Jesuit Frank Brennan was called on to do just that, paying tribute to a man he deeply loves and who was widely respected for his integrity and commitment to justice – former Chief Justice of the High Court, Sir Gerard Brennan

Gerard Brennan was humble, unfailingly courteous, generous and charitable. He was also ambitious for the higher gifts, with a relentless ethic of work and duty garnished with an Irish sense of humour.

He once offered me a lift in his Commonwealth car to the annual reception at the papal nunciature in Canberra. On arrival, we alighted at the main entrance. The nuncio greeted us with the words: ‘You two. You are related. I did not know.’ Dad responded courteously in the affirmative. We made our way down the red carpet. Dad turned to me with a glint in his eye and said, “I think we both just went down in his estimation.”

Gerard and Patricia lived in a very quiet cul de sac on the edge of Canberra. Each work day, the Commonwealth car would be there to take him to the High Court with a wonderful view of the Brindabella mountains en route. One weekend, Dad was working in the garden.

A little girl approached and asked, “This is the judge’s house, isn’t it?’” Dad answered, “Yes.” She further inquired, “Are you the judge’s gardener?” He answered, “Yes.” The little girl went off, well satisfied at having met the judge’s gardener. Dad was even more content, being taken to be the judge’s gardener, for indeed he was.

I was at home one Christmas eve. He returned from delivering the Vinnies Christmas hampers to families in need. On one call, he was given the wrong address. A very smartly dressed woman in party mode came to the door and said, “Hello darling. What are you doing? Selling mushrooms?’” I told Dad he should have answered that he was a High Court judge doing his Vincent de Paul rounds. But he would never do that.

One day, at the High Court, he was escorting me in the lift up to his chambers. A new attendant having no idea who he was said, “You can’t go up there. This area is prohibited to members of the public.” A little nonplussed, Dad simply answered, “But I work here.”

After his retirement, his daughter Bernadette took him to the Gama festival in Arnhem Land. He was chuffed to enter a tent which had on display various judicial quotes including from his Mabo judgment. He stood there feeling quite pleased with himself. For once he let down his humble public reserve. He turned to the young people beside him and said, “I wrote that.” They looked on in utter disbelief.

… as I reached the door, he called out “Goodbye.” That was the last word he ever uttered. For him, Jesus always was the way, the truth and the life.

Fifty years ago, way back in 1971, he was Vice President of the Queensland Bar during troubling times with a state of emergency being declared by the Bjelke-Petersen government during the all-white Springbok Rugby tour. He published this letter in the national newspaper:

“The contemporary discussion of law and order has been overlaid with other issues: apartheid and football (as to which there is little disagreement), politics and protest (as to which there will always be disagreement).

“The fact remains that law and order are essential to a civilised community.
“Law binds both the ruler and the ruled. The ruler who contemns the law can scarcely insist upon its observance by the ruled.

The young Patricia and Gerard Brennan on their wedding day. Photo: AAP, HIGH COURT OF AUSTRALIA

“Each must obey the law in the appropriate way – the ruler, by exercising no more power than the law gives him, and by exercising that power honestly and fairly and with statesmanship; the ruled, by refraining from deliberate infringements of the laws properly enforced by the rulers.

Law and order are bilateral – if either side rejects law and order the other side is encouraged to do the same. The moral obligation of obedience is diminished.

“When legitimate protest degenerates into unlawful disruption, governments are invited to assume powers of doubtful legality, and to condone unlawful actions by police. When governments do not exercise their powers honestly and fairly and with statesmanship, they invite disruptive expressions of protest. In either case both the rulers and the ruled attack the concept of law and order. Is it not time for both to examine their consciences?”

That night he came home and told Mum and me that he had been confronted by one of the doyens of the Queensland Bar at lunch who told him: “That’s it, Brennan. Now you’ll never be a judge.” He matter of factly said to us: “Well so be it.” But that wasn’t it at all. Within a decade he was a Justice of the High Court of Australia.

You don’t get to be president of the National Union of Australian University Students, President of the Australian Bar Association, and Chief Justice of Australia just by being in the right place at the right time, causing offence to none, being unfailingly courteous and humble.

When he became a High Court judge, his beloved clerical cousin Grove Johnson presented him with a bible inscribed: “Salus animorum suprema lex (The salvation of the soul is the supreme law) – when the lawyer perceives this truth with perfect clarity, embraces it with total surrender and applies it with impeccable professional skill, holiness and genius have met. I can wish you no greater success, Grove.”

Gerard Brennan brought true justice to the nation without crying out or shouting aloud, and without breaking the crushed reed, nor quenching the wavering flame. When taking his Oath of Allegiance and Office as Chief Justice he said, “Allegiance to a young, free and confident nation, governed by the rule of law, is not a burden but a privilege.” Reflecting on the promise to ‘do right to all manner of people according to law without fear or favour, affection of ill-will’, he said, “In appellate courts, the law may authorise a tension between abstract justice and a rule of law to be resolved by an alteration of the rule … If the right is to be done according to law, right will be done only if the law be just.”

A little girl approached and asked: “This is the judge’s house, isn’t it?” Dad answered “Yes.” She further inquired “Are you the judge’s gardener?” He answered “Yes.” She went off, satisfied …”

Famously in his Mabo judgment, he observed that “no case can command unquestioning adherence if the rule it expresses seriously offends the values of justice and human rights (especially equality before the law) which are aspirations of the contemporary Australian legal system.” And in his dissent in Marion’s case, he said: “The law will protect equally the dignity of the hale and hearty and the dignity of the weak and lame; of the frail baby and of the frail aged; of the intellectually able and of the intellectually disabled … Our law admits of no discrimination against the weak and disadvantaged in their human dignity.”

The law, family, and the nation were Dad’s abiding concerns as a person of resolute Christian faith in the Catholic tradition. He constantly prayed “before the Father, from whom every family, whether spiritual or natural, takes its name that each of us would be planted in love and built on love, being filled with the utter fullness of God.” Since Mum’s death, he spent much of his time in the St Vincent’s nursing home at Bronte enduring COVID lockdowns, not knowing whether family could be present in his final days. Mercifully the lockdowns passed.

The signature of the future Chief Justice’s of the High Court is shown, at right, on the historic Mabo decision over which he presided. Photos: AAP, HIGH COURT OF AUSTRALIA

Dad took the opportunity during the lockdowns, with his very identifiable copper plate script, to pen a letter to his family speaking of the “fundamental love that we have all had one for another” which was “due chiefly to the unselfish love that Mum gave each of us.” He confessed, “Sometimes I was too preoccupied with professional ambition and I ask your forgiveness. I hope that some of the things I achieved were of value to you.”

He concluded with this benediction: “God bless you all, give you a faith that informs your hope and inspires your love. May you have good health, the support of family and friends and the satisfaction of contributing to a free and confident nation.” His entire public life was dedicated to that free and confident nation – a phrase which he took from the great Justice Reg Smithers when Dad first became a judge.

As death approached, Dad’s simple faith sustained him. On the morning of the day he died, I asked him what words he had for the congregation at mass in the nursing home. He smiled and repeated: “Happy days are here again. Happy days are here again.”

He concluded with this benediction: God bless you all, give you a faith that informs your hope and inspires your love.”

The congregation loved the message. After mass he received the smallest particle of the communion wafer with great delight. I told him quite firmly: “Go in peace’” He smiled. I then bid farewell and as I reached the door, he called out “Goodbye.” That was the last word he ever uttered. For him, Jesus always was the way, the truth and the life.

The family joke was that he wanted to spend his birthday with us on 22 May and his wedding anniversary with his darling Patricia on 26 May. He lingered another five days. We had visions of the two lovers meeting at the pearly gates and Mum declaring, “Ged, once again you’re late for our anniversary.” May they enjoy eternal peace and rest together in Our Father’s house of many rooms where holiness and genius always meet. May he rest in peace. Amen.