Gerard Brennan: relentless rights advocate who became Australia’s chief justice

Born: 22nd May 1928

Died: 1st June 2022

Gerard Brennan, or “Ged” as he was affectionately dubbed by his family, who died at the age of 94 in Sydney, Australia on June 1st, was hugely influential in the progress of First Nations people’s rights in Australia and a man devoted to fairness, justice, and the principles of law. Much of his career, and personal life, involved a delicate balancing act between these values.

The rights of Australia’s First Nations and redressing the historical wrongs committed against their communities became the foundation of Brennan’s legal and moral framework. Indeed, having lived through 25 Australian prime ministerships, Brennan arguably contributed more to the advancement of First Nations rights than any other person.

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Brennan took cases across what were then Australian territories, from Fiji to Papua New Guinea. It was likely that this exposure to other lands and cultures ignited a tremendous passion for First Nations peoples and their histories. In 1973, this passion became a reality when Brennan was appointed as the leading barrister on a royal commission to represent the Northern Land Council, where he defended First Nations rights to claim traditionally owned land. His work provided the basis for the first-ever piece of Australian legislation granting those rights to the First Nations of Australia, the Aboriginal Land Rights (Northern Territory) Act 1976.

In 1992, Brennan went one step further, presiding over a case that he deemed “offensive to the values of justice and human rights”. The Mabo Case challenged the legal concept of terra nullius, which had been used to assert that the Australian continent had been “nobody’s land” before European settlement and therefore no legal impediment existed to prevent its being claimed by Britain. In response, Brennan formed a masterful common law doctrine that recognised the history and spiritual connection of the first peoples of Australia to the land and acknowledged their customary law as legitimate. Following a 6-1 majority ruling, Brennan’s doctrine led to the creation of the Native Title Act 1993, a landmark achievement and an enduring legacy.

In a 1997 lecture in University College Dublin which was broadcast on RTÉ, Australian-born Brennan fondly linked his experience of Irish culture to the values he felt made up Australian society, most important among them being a “lack of respect for pomp and authority (which we in Australia owe substantially to the influence of the Irish)” .

Gerard Brennan was born to Frank Tenison Brennan, a Labour Party politician, lawyer, and judge of the Supreme Court of Queensland, and to Gertrude Mary Brennan, on May 22nd, 1928. Raised Catholic, he attended Christian Brothers Rockhampton and then Downlands College, Toowoomba. His father died during the last year of his university studies, and later that year Brennan became an associate to his father’s colleague, Justice Keith Townley, working at a war crimes tribunal on Manus Island’s prisoner-of-war camp.

Australia was under international pressure to release detained and untried Japanese prisoners in 1949, despite some having allegedly undertaken multiple executions of Australian soldiers. Brennan separated his sense of personal justice and anger to give those prisoners an unbiased trial.

At university, as president of the National Union of Australian University Students, he would meet his wife, Patricia O’Hara, a woman of deep faith who pushed Ged to seize every opportunity, no matter the distance it put between them. Their first child arrived just a year after being married, with another six to follow. She once told her eldest, Frank, that she had considered “divorce, never; but murder, often”. Lady Patricia died in 2019 at the age of 91.

Brennan was a man devoted to justice. He never once claimed that the law was completely fair, and always acknowledged the “significant moral shortcomings” in its processes. At the same time, he strongly believed that it was not a judge’s place to compensate for those shortcomings — he felt that role was solely for parliament, because they represented the will of the people.

His career saw him serve as the inaugural president of the Australian Administrative Appeals Tribunal, president of the Administrative Review Council, and as a member of the Australian Law Reform Commission. He worked within those organisations to enact his belief that no judge should be able to arbitrarily exercise power, and that the due process of law would always be followed to give every person a fair and impartial trial.

Brennan’s career largely turned from barrister to judge following his appointment to the Australian Industrial Court in 1976, and upon becoming a founding Judge of the Federal Court of Australia the following year. In 1981, Brennan was not just appointed to the High Court of Australia but was also decorated knight commander for his outstanding public service; in 1988 he was welcomed as a Companion of the Order of Australia.

In 1995, he was appointed chief justice of the High Court of Australia. He retired after his term ended three years later but even then continued to collect achievements. He was awarded honorary degrees from seven different universities spanning from Queensland to Melbourne, to Ireland at Trinity College Dublin, where he received his Doctor of Law beside Seamus Heaney, who was receiving his Doctor of Letters.

He also took up postings as an external supreme court judge in Fiji and as a non-permanent judge in the Hong Kong Court of Final Appeal, and was awarded the Gold Bauhinia Star in 2013, the second-highest honour that can be granted by the Hong Kong government.

Beyond these accolades, Brennan became a foundation scientia professor of law at the University of New South Wales, and a chancellor of the University of Technology Sydney. He used retirement as an opportunity to pass on his knowledge and principles to the next generation of lawyers, in the hopes of inspiring them with the same passion for social justice he still held after all those years since Manus Island.

Australia’s attorney general Mark Dreyfus described him as “a brilliant, compassionate man whose life devoted to the law made Australia a better, fairer and more decent nation”.

Brennan’s life was guided by three principles: “To act justly, to love tenderly, and to walk humbly with his God in the service of others,” according to his daughter Madeline.