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 favor 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 recognizes 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.
This immediately did away with notions of Terra Nullius by which the British could claim that land in Australia was ripe for the picking because it belonged to no one. The Court in Mabo, where Brennan J led majority, put an end to that idea and opened the claims to land ownership to a much wider group including the traditional owners. The follow-up judgement in Wik took that understanding even further.
Superior legal reasoning was not the only part in these and other aspects of his judicial career. Ged Brennan was a Queenslander, born and raised in Rockhampton and educated in Toowoomba by the Missionaries of the Sacred Heart at Downlands College. Toowoomba was where his father, Frank Brennan, was elected to the Theodore State Labor Government and took his place in that Government as the Minister for Public Instruction (aka education).
And Rockhampton was where Ged’s father was left for an inordinate length of time – over 20 years – as the residential Supreme Court Justice. Being from the wrong side of the political tracks (i.e. Theodore and Labor), he was overlooked for a return to the bench in Brisbane. So, what did he do? He waited patiently for the call to return to Brisbane. When it hadn’t come after 20 years, he made up the mind of the politicians and judges controlling his destiny and moved to Brisbane himself.
Brisbane is where the man whose passing we celebrate now began his own journey into adulthood, creation of a family and the development of a career. But he didn’t come to those challenges with a clean slate. No, Ged inherited debts and antipathies as well affections and admirers. But it was no easy walk. It was one that entailed contest and at times conflicts born of prejudice.
Into this set of shaping experience came Patricia O’Hara who was a medical student at the University of Queensland. She had experienced not fitting in since infancy. With her two brothers – Frank and Tom – the children were actually orphaned and set up in three families and homes of family and friends. As Pat would say later in life, she hardly knew her brothers.
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 meaning and presence. These were things he knew he had to receive and for that, he asked of himself a completely undistracted openness to what experience might offer.
That longing for peace and the confidence to live in its embrace is something he found in his Christian faith and in his celebration of the Catholic sacrament of the Eucharistic which he attended every day he could. In fact, it was a condition he placed on the Catholic retirement home he chose to live in during his declining years – that it provided daily Mass.
For Ged, all he hoped for, believed in and sought to foster in life came together and was celebrated in the Eucharist. How fitting that we say farewell to him at Mass.
Father Michael Kelly is an Australian Jesuit who directed the Catholic Church's news feature and commentary service, UCA News, 2008-2018. He is the publisher of the English editions of La Croix International and La Civilta Cattolica, the 170 year old Jesuit publication of the Italian Jesuits.
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