Malcolm Turnbull joins a select group: lawyers who have argued before Australia’s national court and then gone on to lead the nation. In 1988, the future Prime Minister capped his greatest success in his career as a barrister by successfully defending his lower court victories in the Spycatcher case in the High Court. The case famously concerned the UK government’s attempts to block the publication of a book by a former MI5 agent, Peter Wright. Having succeeded at trial in arguing that the book’s supposedly confidential contents was mostly already public overseas, Turnbull secured a majority ruling in the NSW Court of Appeal (consisting of two future High Court judges, Kirby P and McHugh JA) and then a unanimous victory in the High Court, which ruled that Australian courts applying the law of confidentiality ought not protect the security interests of an overseas government. Turnbull also succeeded as a junior barrister in an earlier case before the national court, when he defended Noel Chrichton-Browne in the Court of Disputed Returns.
A previous Prime Minister with a much more impressive record before the High Court is Robert Menzies, Australia’s longest serving leader. Menzies, as a young barrister, famously led the argument in the landmark Engineers case, which overturned constitutional doctrines from the first two decades of the federation, paving the way for decisions in favour of the powers of the federal government. The case affirmed Menzies’ career as a leading barrister and he went on to argue many more cases before the High Court, before entering politics and serving as Prime Minister twice. Back in 2011, Norman Abjorensen drew some prophetic parallels between Menzies and Turnbull, albeit understandably neglecting the High Court link.
Menzies’ greatest opponent, Herb Evatt, who not only argued before the High Court but also became a High Court judge, narrowly missed out on becoming Prime Minister in 1960. However, the next Labor Prime Minister, Gough Whitlam, is another who argued before the High Court in a handful of cases in the 1950s. The most significant is Grannall v Marrickville Margarine, where the Court distinguished between the narrower operation of s92 of the Constitution (providing the trade, commerce and intercourse amongst the states shall be absolutely free) and the federal parliament’s wider power over interstate trade and commerce (which extends to production of goods in some circumstances.) Whitlam was a junior to future High Court Chief Justice Garfield Barwick, representing the losing margarine company. He was more successful in a solo appearance for the tenant in a lease dispute that reached the Court.
Putting aside the different case of Edmund Barton (who both led Australia’s first government and sat on its first national court bench), I am not aware of any other Prime Minister who has appeared before the High Court. There have, of course, been Prime Ministers with law degrees (including Tony Abbott), some who practiced as lawyers first (including, most recently, Julia Gillard) and even some who wrote on constitutional law or were litigants in the Court (Whitlam, again, on both counts.) But I imagine that, if I have missed another Prime Minister who has actually argued before the High Court, the comments will soon set me straight.