I was in Brisbane on 10 April 2015 this week when I heard the heart-wrenching news that the Honourable John Leslie Toohey AC QC had passed away the previous evening. Although I knew his death was imminent I was still overwhelmed with sadness. John Toohey was a humble and gentle man from whom, and about whom, I never heard an ill word spoken. He was a gentleman in every sense. He talked with crowds and kept his virtue. He walked with Kings but never lost the common touch.
I had barely graduated from university when I began work for John in 1997. It was, and remains, for me, an unimaginably fortunate start to a legal career. John had an extraordinary intellect. He was a wonderful teacher. And most of all, he had a human touch without match. In court this manifested itself in a deep respect for his colleagues, for counsel and for his staff. I came to work for him as a fresh-faced graduate. His intellectual ability, his legal knowledge and his judgement intimidated me. But for the 12 month period of my associateship he treated me, as he did all of his law graduate associates, as an equal. For the two decades that followed, he and his incredible wife, Loma, remained mentors and confidants, and treasured friends.
When Dr Barnett asked me to write this short obituary to honour John Toohey, I accepted un oeil qui rit et un oeil qui pleure. The laughter was prompted by my knowledge that John had already read much of the obituary that I would write. Following his retirement in 1998, Natalie Gray and I wrote a short biography of him for the Journal of Judicial Administration. We had just completed a year as his final associates. John had retired from the High Court and we wanted to express our sentiments of the extraordinary esteem in which we held him, our pride in his powerful sense of service, and our respect for his empathy and compassion. He sent us a warm note of thanks. With his usual dry wit he told us that he was particularly grateful to be given the privilege of reading his obituary. Natalie and I returned to the subject again for the entry we authored on John Toohey in the Oxford Companion to the High Court of Australia. With his wry smile he made another remark about our calling as obituary writers.
John Toohey was born in Perth on March 4 1930 to Albert and Sylvia Toohey. His parents were country publicans and he spent a significant part of his childhood in the country (Meekatharra, Kojonup and Lake Grace). On the penultimate occasion when I saw John in 2015, he spoke, with a glint in his eye, of catching the eye of a girl called Loma at a country dance. He married Loma shortly afterwards and they enjoyed 62 years (today) of marriage marked by true love, respect, and kindness. When John died he was surrounded by his wife, Loma, by his seven children (Jill, Judy, Catherine, John, Paul, Sarah and Stephanie), his nine grandchildren (Harriet, Emma, Llewellyn, Grace, Joseph, Ruby, Jean, Sophia and Frankie) and his four great grandchildren (Phoebe, Oliver, Robbie and Jasper).
John Toohey graduated with a Law degree in 1950, winning what are now the two oldest awards at the UWA Law School; the F E Parsons (most outstanding graduate) and H C F Keall (best fourth year student) prizes. At the swearing in of Justice Toohey as a judge of the High Court of Australia on February 6 1987, the Attorney General remarked that “when these matters were before Cabinet the Prime Minister [Bob Hawke] took the opportunity to acclaim your academic brilliance by indicating that he ran second to you”.
Shortly after completing articles, John Toohey started his own law firm which continued for many years after he joined the independent bar. Toohey appeared often in the High Court, from the age of 31 as lead counsel in Commissioner of Taxation v Finn and including cases ranging from tax (see eg, Steinberg v Federal Commissioner of Taxation) to criminal law (see eg, Yager v The Queen), contract (see eg, Godecke v Kirwan) and unjust enrichment (see eg, Bell Bros Pty Ltd v Shire of Serpentine Jarrahdale). In 1973, as a leading Queen’s Counsel at the Western Australian Bar, he left Perth and his lucrative practice to establish the inaugural Aboriginal Legal Office in Port Hedland.
In 1977, Toohey was appointed the first Aboriginal Land Commissioner and took commissions in the Supreme Court of the Northern Territory and the Federal Court of Australia. He was universally acclaimed for his respect and patience. Ian Barker QC described a two week hearing involving Justice Toohey ‘trudging around the bush on the Alligator Rivers flood plain in the blazing heat of the pre-monsoonal sun’ and where Justice Toohey led ‘us like Moses who led the 12 tribes of Israel through the wilderness with a cheerful fortitude which did not ever leave him for the whole fortnight’ (Transcript of hearings, Land Claim 2 April 1982, p 25). Another barrister, Ross Howie, said that “it was hard not to be impressed by the Judge negotiating cheerfully with an old man to share the trunk of the only tree as a back rest”.
On 6 February 1987, Justice Toohey was sworn in as a Judge of the High Court of Australia. There had been speculation in the media about him being appointed to the High Court. One of his Associates at the time mentioned this to Justice Toohey and recalls Toohey’s reply that ‘there is nothing so fatal to one’s chances of appointment as being at the top of someone’s list’.
Toohey came to the High Court with a deep knowledge and understanding of the common law, including areas where he considered that it needed development. In 1990, in a speech to the Amnesty International Lawyers Group entitled ‘Minorities Under the Common Law’ Justice Toohey said that he did not ‘share Blackstone’s enthusiasm that [the common law] is “the best birthright and noblest inheritance of mankind”’. He said, adapting G.K Chesterton’s observation in quite a different context, that ‘the common law may not so much have failed as not been adequately tried’.
One of those areas was what is now described as native title. More than a decade before Mabo (No 2), Justice Toohey had described as ‘much debated’ the conclusion of Blackburn J in the Gove Land Rights Case (Milirrpum v Nabalco Pty Ltd (1970) 17 FLR 141) that traditional title was not recognised by the common law of Australia. Justice Toohey had long been aware that, in his words, the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) had prompted a ‘growing awareness of the importance of land to Aboriginals and of the need to find some proper accommodation between the recognition of traditional title and reasonable development’. (See JL Toohey, ‘Indigenous Peoples and the Industrial System: Lessons from Australia, Canada and the United States’, Washington, 1982).
When Mabo v Queensland (No 2) came before the High Court, Justice Toohey concluded at pages 187 to 188 that ‘traditional title has a common law existence because the common law recognizes the survival of traditional interests and operates to protect them’. In relation to his conclusion that the traditional title of the Meriam people was recognised by the common law of this country, Justice Toohey was joined by 5 of the 6 other members of the Court. His judgment was marked by a deep concern with identifying the nature of traditional title. He eschewed the label ‘native title’ in favour of that which he preferred, ‘traditional title’. Even then, he recognised that the traditional rights might not be accurately described as ‘title’ in the sense in which that term is commonly understood. He also rejected an analysis which sought to characterize the rights as ‘personal’ usufructory rights or as ‘proprietary’ rights. Although there might remain scope to debate the precise jurisprudential foundation of native title, some of Justice Toohey’s deep reflections have proved prescient. In the susceptibility of native title to extinguishment by an inconsistent right to exclusive possession (rather than another liberty to use) the ‘native title’ bears the characteristic of a usufructory liberty rather than a claim right or title. But it is proprietary in the sense that it is a liberty in respect of a physical thing (land) and, without being exclusive, remains exigible against the world at large.
Justice Toohey’s approach to native title was part of his broader, consistent perspective concerning rights. He reasoned in support of a right to a fair trial which sometimes requires the provision of State legal representation (Dietrich v The Queen); he supported a discretion to exclude evidence obtained ‘unfairly’, even beyond those circumstances which are concerned with a fair trial (Pavic v The Queen); and, in the minority, he supported a right of accused persons to documents that might fairly exculpate them, despite assertions of legal professional privilege over those documents (Carter v Managing Partner Northmore Hale). One of his associates, now a leading junior at the London bar, later completed a doctorate in support of this conclusion (see J Auburn, Legal Professional Privilege (2000)). Justice Toohey was also an early supporter of various implied constitutional freedoms. One of those was a constitutional implied freedom of political communication (familiar from Nationwide News Pty Ltd v Wills, Australian Capital Television Pty Ltd v The Commonwealth, Theophanous v Herald & Weekly Times Ltd, and Stephens v West Australian Newspapers Ltd). That constitutional freedom was ultimately the subject of a unanimous decision to which Justice Toohey was party, Lange v Australian Broadcasting Corporation. Many, many days were spent in 1997 by all judges in the production of a joint judgment in that case.
Justice Toohey’s endorsement of individual rights at common law, in statute, and in the constitution sometimes saw him described in the media as an ‘activist’ judge. He never cared about such descriptions. In an interview with the Weekend Australian, Toohey was asked what his reaction was to media references to him as a ‘progressive’ or an ‘activist’ (see The Weekend Australian , February 21-22 1998 at 25). Toohey replied ‘almost none’. He explained that a reference to activism uses the word ‘change’ as a perjorative term but that a decision not to change is just as much a decision as to change the law. It is not ‘as if it is a matter of the “activist” judge making a decision to do something and the “non-activist” judge just not making a decision.’ In fact, in one limited sense he might have been described as conservative. There was so much of John Toohey’s knowledge that was never expressed in any judgment. In a speech at the Conference of Family Court Judges in Wollongong in 1997, Toohey spoke of Sir Robert Megarry’s ‘temptation of Law’ by urging restraint in the exploration of an interesting question of law that is not necessary in reaching a decision. He said ‘I would agree with that wholeheartedly’. Even in Mabo (No 2) he had intentionally left numerous issues undecided where it was unnecessary to do so.
Apart from John’s deep knowledge of the law and beyond, he had a glowing humanity. His empathy, and his compassion, meant that he saw goodness in others even when they could not see it in themselves. He also had a wonderful way of gently poking fun, but never hurtfully. On three occasions I thought that I would surprise John with particular confidences concerning my life but on each occasion he smiled and told me that he had been expecting the news. A particularly difficult part of the task of writing an obituary for a dear friend is expressing post mortem all the matters that one wishes to have been expressed inter vivos. In this case, I hope John would already have known, even without the preview.
Justice James Edelman was appointed to the Supreme Court of Western Australia on 25 July 2011. On 20 April 2015, he will commence as a judge of the Federal Court of Australia.
Justice Edelman graduated from the University of Western Australia with a Bachelor of Economics in 1995 and a Bachelor of Laws with first class honours in 1996, and from Murdoch University with a Bachelor of Commerce in 1997. He was awarded a Rhodes scholarship in 1998 and obtained a Doctor of Philosophy in Law from the University of Oxford in 2001.
Justice Edelman was admitted to practise in the Supreme Court of Western Australia in 1998. He practiced as a barrister at the Chambers of Mr Malcolm McCusker QC in Perth and at the Chambers of Lord Grabiner QC at the English Bar.
Justice Edelman continues to teach as an Adjunct Professor at the University of Queensland and the University of Western Australia. He is also a Conjoint Professor of Law at the University of New South Wales.