Evolution and Revolution in the Law – A State of Origin Perspective

Naida Haxton Lecture 2025, The University of Queensland

1 I thank the University of Queensland and the UQ Law Society for inviting me to deliver the 2025 Naida Haxton Lecture. It is Ms Haxton’s career that has stimulated my topic for this evening. She is a distinguished alumna of the TC Beirne School of Law, the holder of many “firsts,” including being the first female barrister to practise in Queensland. Having originated in Queensland, she left – having fallen in love with a New South Welshman – and made an extremely significant contribution to the law spanning three decades between 1981 and 2006, first as assistant editor to Dyson Heydon, and then as editor of the New South Wales Law Reports. Francis Douglas KC, another Queenslander lured south, wrote that it was Naida’s skill as an editor and law reporter that strongly influenced the development of the reputation of the NSWLR – “Never one to circumlocution, she had the uncanny knack of being able to summarise the most complex factual and legal analysis into just a few short paragraphs and to ‘fillet’ judgments down to their relevantly reportable essence.”^[1] In 1991, Ms Haxton published a Manual of Law Reporting (with a second edition published in 2005). This was a revolution. The Manual is widely used throughout Australia, New Zealand, and the Pacific and has also been used as a model for law reporting in South Africa and Singapore. Mr Douglas disclosed that Naida had discreetly visited and advised judges on matters of grammar, punctuation, relevance, and other matters appropriate to the successful writing of judgments.^[2] I hope to receive such a visit soon.

2 Naida Haxton AM is one of the many Queenslanders who has made an exceptional contribution to the development of the law beyond Queensland borders. Tonight, I want to highlight the contributions of others whose names I hope resonate in some way with most of you. I do so within the two broad themes about which Naida is most passionate: legal history and legal advocacy.

3 First, let me turn to those who have reached the pinnacle of the Australian legal profession – achieving the position of Chief Justice of the High Court. Of the 14 Chief Justices to have served since Federation, four have been Queenslanders: Sir Samuel Griffith, Sir Harry Gibbs, Sir (Frank) Gerard Brennan, and the Hon Susan Kiefel AC. Each has led the Court in different ways and there is much that could be said about the outstanding careers of each one. But let me give you some highlights.

4 Sir Samuel Griffith was Chief Justice between 1903 and 1919. He is of course best remembered as one of the “Fathers of Federation” but has also been described as an “audacious” law reformer.^[3] Many of you here will already be familiar with the work for which he is most renowned – the Criminal Code Act 1899 (Qld). Prior to that work, he had drafted and seen implemented the Offenders Probation Act 1886 (Qld), the first probation scheme in Australia and one of the earliest in the common law world.^[4] The Griffith Code was subsequently adopted in Western Australia and Papua New Guinea. Internationally, it has influenced the criminal codes of Nigeria (which in turn influenced other African jurisdictions), Israel, Fiji, the Solomon Islands, and the Seychelles.^[5] In Queensland, the Code continued virtually unchanged until the significant amendments introduced by the Criminal Law Amendment Act 1999 (Qld), 100 years after its first iteration was passed by the Parliament. It was truly revolutionary work.

5 Griffith’s constitutional law judgments remain authoritative to this day. In particular Baxter v Ah Way,^[6] Robtelmes v Brennan^[7] (to which the High Court referred more than a century later in Love v The Commonwealth^[8]) and Huddart, Parker & Co Pty Ltd v Moorehead, in which he gave the classic definition of “judicial power” as:^[9]

the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether those rights relate to life, liberty, or property.

6 Sir Harry Gibbs , known throughout his life to his friends as “Bill,” was Chief Justice from 1981 to 1987. He was the sitting Chief Justice when I commenced my undergraduate law studies. He was also the inaugural President of what has become the UQLS. The late David F Jackson AM QC observed that Gibbs believed in the development of the law, and change where necessary, through the judicial process, but did not regard courts as a vehicle for major social change.^[10] His approach was more evolutionary. Sir Harry’s philosophy is best illustrated by his decision in the Second Territory Senators’ Case, where he said:^[11]

No justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the Court. A Justice, unlike a legislator, cannot introduce a programme of reform which sets at nought decisions formerly made and principles formerly established.

7 Sir Harry’s time as Chief Justice is remembered in large part because of the “dignity, fairness, and efficiency” with which he handled what became known as the “Murphy Affair,” particularly when, with inquiries still pending into the allegations made against him of perverting the course of justice (of which he was subsequently acquitted), Justice Murphy insisted on continuing to sit on the High Court.^[12] The controversy about whether Murphy J should have been removed from the High Court began with the publication of transcripts of illegally intercepted phone conversations which were said to reveal the activities of activities of persons involved in organised crime in NSW. The conversations included conversations between Murphy J and his close friend, solicitor Morgan Ryan, who was said to be associated with leaders of organised crime. Allegations were made that the judge had attempted to pervert the course of justice by impliedly and intentionally asking the Chief Stipendiary Magistrate to interfere with committal proceedings instituted against Ryan, who was charged with criminal conspiracy, and that he had attempted to influence a District Court judge when proceedings against Ryan were pending before that judge.^[13] It was an enormously difficult time for the Chief Justice.

8 Sir Gerard Brennan was appointed to the High Court following the retirement of Barwick CJ. He was then elevated to Chief Justice in 1995 after Mason CJ’s retirement and served for three years until he too reached the age of statutory senility. Sir Gerard is widely regarded for his contribution to administrative law. He was appointed the first President of the Administrative Appeals Tribunal, now the Administrative Review Tribunal, in 1976 and in that role was instrumental in shaping the judicial model through which the AAT came to operate.^[14]

9 Although generally embracing a well-defined conception of a limited judicial role and striving for certainty in the exposition of legal principle, it is fair to say he was more adventurous than Sir Harry. Sir Gerard was willing to develop the law when he considered it necessary to achieve a just result consistent with the demands of modern society, although like Gibbs he saw no place for social policy in the development of the law. In A-G (NSW) v Quin, Brennan observed that the Court “needs to remember that the judicature is but one of the three co-ordinate branches of government and that the authority of the judicature is not derived from a superior capacity to balance the interests of the community against the interests of an individual”.^[15] The best example of his “revolutionary spirit” is of course his decision in Mabo v Queensland (No 2).^[16] In that decision, Sir Gerard rejected the common law doctrine of terra nullius as “offending the values of justice and human rights (especially equality before the law) which are aspirations of the contemporary Australian legal system.”^[17] He also gave wide scope to the external affairs power as a member of the majority in Koowarta v Bjelke-Petersen^[18] and the Tasmanian Dams case.^[19] A more evolutionary example of his jurisprudence is the decision in He Kaw The v The Queen^[20] in which he “distilled a mass of conflicting case law into clearly expressed presumptions concerning the mental element of statutory offences.”^[21]

10 Chief Justice Kiefel was appointed to the High Court in 2007 and became its first female Chief Justice in 2017. She retired in 2023. Although it is perhaps too soon to articulate fully the legacy of the Kiefel Court, one of its most significant hallmarks is its unanimity of voice. Chief Justice Kiefel made known her preference for joint judgments where possible, although never at the expense of individual expression. She encouraged her colleagues to think carefully about the value of a dissent. The value of a unified voice is well illustrated by many of the landmark decisions of the Kiefel Court delivered either in a unanimous joint judgment or in a majority judgment led by the Chief Justice. These include Re Canavan,^[22] concerning the issue of the election of dual citizens to the Parliament and s 44 of the Constitution; The Queen v Bauer,^[23] concerning tendency evidence; Glencore International AG v Commissioner of Taxation,^[24] concerning legal professional privilege; Moore v Scenic Tours Pty Ltd,^[25] concerning consumer guarantees; Port of Newcastle Operations Pty Ltd v Glencore Coal Assets Australia Pty Ltd,^[26]concerning competition law; Australian Building and Construction Commissioner v Pattinson, ^[27] concerning the assessment of civil penalties; Benbrika v Minister for Home Affairs,^[28] concerning the power to deprive a person of citizenship; Qantas Airways Limited v Transport Workers Union of Australia,^[29] concerning adverse action under the Fair Work Act; Kingdom of Spain v Infrastructure Services Luxembourg S.À.R.L.,^[30] concerning foreign state immunity; and Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd,^[31] concerning trade-marks .

11 The courtesy and dignity of Chief Justice Kiefel’s leadership is a subject of wide renown. It is perhaps best summed up in her own words:^[32]

It is important that the relations between judges be courteous …It is especially important for final appellate courts which comprise a small number of judges who work closely together. The work of these courts requires a level of collegiality for the efficient discharge of their work. But in the end, it is the court as an institution which matters most, not the hurt feelings of judges. A judgment which ridicules other members of the court cannot but detract from the authority of the court and the esteem in which it is held. A humorous dissent may provide the author with fleeting popularity, but it may harm the image the public has of the court and its judges.

12 I turn now to remind of you of some basal legal principles with which you will have become well acquainted during your legal studies.

13 In native title law: Sir Gerard Brennan’s statement, with whom Mason CJ and McHugh J agreed, that:

Native title to particular land (whether classified by the common law as proprietary, usufructuary or otherwise), its incidents and the persons entitled to it are ascertained according to the laws and customs of the indigenous people who, by those laws and customs, have a connexion with the land.

In constitutional law: Sir Samuel Griffith’s classic definition of judicial power to which I have already referred.

14 In the law of negligence:

A manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care.

15 This is, of course, the famous, and quite revolutionary, “neighbourhood principle” established by Lord Atkin in Donoghue v Stevenson in 1932.^[33] Lord Atkin was born James Richard Atkin in Tank Street, on the site of what is now the Brisbane Registry of the Federal Court, in 1867 – so we count him as a Queenslander for State of Origin purposes. His father died when Richard was four and his mother took him back to England where, after studying at Magdalen College Oxford, he became a barrister at Gray’s Inn prior to his eventual elevation to the House of Lords in 1928.

16 In the law of equity:

A person will be in a fiduciary relationship with another when and insofar as that person has undertaken to perform such a function for, or has assumed such a responsibility to, another as would thereby reasonably entitle that other to expect that he or she will act in that other’s interest to the exclusion of his or her own or a third party’s interest.

17 This statement of the nature of the fiduciary relationship was made by the Hon Paul Finn , who sadly died in 2023. A former judge of the Federal Court, Paul commenced his legal career studying at the University of Queensland in the late 1960s. As a study tip for the students amongst us here this evening, in one summer vacation period, he set himself the task of reading all the company and partnership cases decided by Chancery in the English Reports.^[34] He completed his doctorate at Cambridge, the product of which was his first book, Fiduciary Obligations, published in 1978. As Sir Ross Cranston has written, “Paul’s work as an academic and a judge has had a very significant impact, well beyond Australian shores.”^[35]

18 Fiduciary Obligations was recognised as a work that created and defined the field of equity across many jurisdictions. It was awarded the Yorke Prize, a prize established in 1873 at Cambridge for a thesis of exceptional quality, which makes a substantial contribution to its relevant field of legal knowledge. That the concepts and analysis were novel, and somewhat revolutionary, is attested to by the fact that he was advised against trying to have the book published in England – one of his examiners said English law publishers would have no interest in it!^[36]

19 On returning to Australia in 1975 to a position as a Senior Lecturer at UQ, he was swiftly poached by the Australian National University, where he remained for 20 years until his appointment to the Bench. Whilst at the ANU, Paul published extensively in the fields of both private and public law, with his book Law and Government in Colonial Australia in 1987 demonstrating that colonial law in Australia was not merely a poor copy of English law but was, in part, highly innovative.^[37]

20 Although Paul Finn’s jurisprudential legacy is vast, I want to draw attention to three of his most significant contributions to Australian jurisprudence (and the common law more broadly). In chronological order: the first, his 1997 decision in Hughes Aircraft Systems International v Airservices Australia;^[38] the second, the decision of S v Secretary, Department of Immigration & Multicultural & Indigenous Affairs^[39] in 2005; the third, his decision in Grimaldi v Chameleon Mining (No 2)^[40] in 2012.

21 Hughes v Airservices Australia has influenced the development of the law throughout the common law world, having been cited by courts in England, Canada, and New Zealand.^[41] The case concerned a claim for damages by the unsuccessful tenderer in a two-party bid for the award of a contract for a new air traffic control system in Australia. The unsuccessful tenderer had contended that, in conducting the tender process, Airservices Australia was obliged by contract to conduct the process fairly and in accordance with defined procedures and criteria. For the first time in Australia, it was held that a tender process could give rise to a “tender process contract”, the consideration for which was participation in the tender process and that, as a matter of law, there was an implied duty to deal fairly in the performance of contracts such as these because, inter alia, Airservices Australia was an agency of government, or a public body, expected to act fairly with those with whom it dealt.

22 S v Department of Immigration concerned the indefinite detention of detainees, many of whom had significant mental health problems, at the Baxter Correctional Centre, located in the desert 10km from Port Augusta in South Australia. Independent psychiatrists had advised the Commonwealth on a number of occasions that the conditions at Baxter were a contributing cause of the ill health of the patients at Baxter. The psychiatrist engaged by the company to whom the detention services were contracted recommended a change in medication. The applicants sought orders compelling their assessment for admission to a mental health facility and alleged that the Commonwealth breached its duty of care to ensure that reasonable care was taken of them in detention in relation to their psychiatric illness.

23 Finn J held that the minimum standard properly to be expected of the Commonwealth because of its relationship with detainees in a facility such as Baxter is that it ensures that reasonable care is taken of detainees who, by reason of their detention, cannot care for themselves. The Commonwealth had conceded that it was under a non-delegable duty to ensure that reasonable care was taken of each detainee. Finn J held that such a duty necessitates that the Commonwealth ensures that a level of medical care is made available which is reasonably designed to meet their health care needs, including psychiatric care. Where the Commonwealth contracts out the provision of services to detainees, it is obliged to see that care is taken and that the requisite level of medical care is provided with reasonable skill. Having made the choice of location, the Commonwealth, not the detainees, should bear the consequences of the effect that location has on available medical services.

24 Finn J commenced this judgment with the observation that the conditions which the detainees faced were “a predictable consequence” of the decision of the High Court in Al-Kateb v Godwin.^[42] I suspect he would have been smiling on the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs^[43] which, in 2023, overturned Al-Kateb by holding that sections 189 and 196 of the Migration Act do not authorise the Executive to keep detainees indefinitely where there are no reasonable prospects of their removal from Australia in the reasonably foreseeable future.

25 Although a decision of the Full Federal Court (Finn, Stone and Perram JJ), Grimaldi represents Paul’s clearest exposition of fiduciary principles in Australia and of a third party’s participatory liability in a breach of fiduciary duty. The judgment discusses the distinctions between trust law, property law, and fiduciary law, liabilities in rem and in personam, categories of knowledge and notice, trust property, void and voidable transactions, breach of fiduciary duty, and imputation of knowledge to a corporation. It is, quite frankly, one of those cases through which it is possible to teach an entire course in equity.

26 Let me now speak about two exceptional Queensland legal scholars and lawyers who have pursued their careers largely beyond Australian shores.

27 The first I have already mentioned in passing. Professor Sir Ross Cranston completed a Bachelor of Arts with first class honours, a Bachelor of Laws with first class honours and a Bachelor of Economics at UQ. Subsequently, he completed an LLM at Harvard and a DPhil at Oxford. It is fair to say that is not a bad academic resume! He was another academic lost to Queensland when ANU lured him South, as was its practice. The London School of Economics recognised his talent and he was appointed the Cassel Professor of Commercial Law in 1992 whilst also appearing as an advocate. Sir Ross stood for the UK Parliament in 1997 and was appointed Solicitor General for England and Wales in the Blair Government – somewhat revolutionary for an Australian. He retired from Parliament in 2005 and was appointed as a Judge in the Queen’s Bench Division of the High Court in 2007. In 2016, he became the Judge in Charge of the Administrative Court. Sir Ross has retired from the Court and returned to the LSE as Professor of Law.

28 Sir Ross’ contribution to the law has been vast. He is the author of the leading English text on Banking Law, which in 2023 was published in Chinese, has written texts on public law, consumer law, and commercial law, and will soon publish one on judging. He has been tasked with several important government inquiries, including into the Lloyd’s Banking Group and the GLO Compensation Scheme following the Horizon scandal which destroyed the lives of many UK postmasters. He is also the Chair of the JUSTICE Working Party on Immigration and Asylum Determination and of BAILII (the British equivalent of AUSTLII).

29 The second, Professor Rachael Mulheron KC (Hon) completed her BCom and LLB with Honours in 1992, and her LLM (Adv) in 2001 at UQ before completing her DPhil at Oxford. She is Professor of Tort Law and Civil Justice at Queen Mary University of London, where she has taught since 2004. Rachael is the UK’s leading academic in class actions and was appointed to the academic advisory committee to the Australian Law Reform Commission’s inquiry into class actions and litigation funding in 2018. In 2023, Rachael was appointed to the Competition Appeal Tribunal and, in 2024, was elected a Fellow of the British Academy. Rachael has over 100 publications, many of which have been cited by courts around the world, including by the High Court of Australia,^[44] the Federal Court of Australia,^[45] the Supreme Court of NSW, including the NSW Court of Appeal,^[46] the Queensland Court of Appeal,^[47] the Supreme Court of Victoria,^[48] and the Western Australian Supreme Court.^[49]

30 I think it is fitting that we finish tonight with one of the greatest advocates Queensland has ever produced, the Hon David F Jackson AM KC . Many of you will have already heard much about David because of his generous sponsorship of the David F Jackson Trophy for Outstanding Advocacy, awarded to a UQ mooter each year at the David F Jackson Memorial Mooting Dinner. The dinner was given that nomenclature in 2012 somewhat prematurely; David died in 2023 – his loss is still felt by the Australian legal profession. He graduated from UQ with a Bachelor of Arts in 1963 and a Bachelor of Laws in 1964. During 1963 and 1964, he was the Associate to Sir Harry Gibbs, who was then a Judge of the Supreme Court of Queensland.^[50]

31 David’s practice at the Queensland Bar was extremely successful. He took silk in 1976 at the age of only 34 and appeared in all courts, including the High Court and the Privy Council. In 1985, he was appointed to the Federal Court based in Sydney. Now, it is no secret that the salary of a Federal Court judge does not nearly approach that of a fashionable silk. With that comment in mind, you may not be surprised that David returned to the Bar in Sydney in 1987. He was in constant demand to appear before the High Court. That is borne out by the statistics – he argued some 296 cases in that Court.^[51] As the Honourable Andrew Bell, Chief Justice of NSW, said on learning of his death, David was “… in truth, a generalist. His specialty was advocacy and the art of persuasion.”^[52]

32 Some of the cases he was most fond of recalling, and with which you are no doubt also familiar, include Re Wakim, Ex Parte McNally,^[53] Koowarta v Bjelke-Petersen,^[54]Commonwealth v Tasmania (Tasmanian Dam Case),^[55] and Tapp v Australian Bushmen’s Campdraft & Rodeo Association Limited.^[56] The latter case was decided in 2022. Having never really retired, you can imagine that, despite his ailing health, David’s death just a year later came as a shock to the profession.

33 David F Jackson has been described as a “titan of appellate advocacy in Australia.” Any aspiring advocate should take any opportunity to watch the recordings of David in action before the High Court – there could be no better person to attempt to emulate. In the Inaugural Honourable David Francis Jackson AM KC Oration in February this year, the Hon Susan Kiefel AC suggested that David Jackson had taken heed of the words of his mentor, Sir Harry Gibbs who said:^[57]

[i]t is an enormous advantage if the argument is an interesting one. Some counsel can bring life and sparkle to a patent case; in other hands the most lurid crime of passion is given a patina of somniferous dullness. Elegance and wit never go astray if the former is not too high flown and the latter not too laboured.

34 My purpose tonight in describing the careers of these various eminent jurists and legal scholars who originated in Queensland is not to engage in any parochialism or chest-beating about the qualities of Queenslanders. Rather, my purpose is to demonstrate that the law has the potential to open up the world to all of you. I am sure I don’t need to tell this generation that geography is no barrier in the modern world. But even in the not-so-distant past, it did not need to be. Those of you fortunate enough to have made the most of the education you have been offered at UQ have the world at your feet. I hope that one day, you are being discussed as significant figures in Queensland’s legal history and as extraordinary legal advocates, whether you choose to pursue a career as a solicitor, a barrister, or outside the profession altogether. You have the shoulders of giants on which to stand.