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Gerard Brennan, High Court justice who confirmed native title, dies at 94

Tributes are flowing in for the late High Court chief justice Sir Gerard Brennan, who has died aged 94.

Jun 02, 2022, updated Jun 02, 2022

Sir Gerard served as a justice of the High Court of Australia from 1981 to 1995, and as the 10th chief justice from 1995 to 1998.

His lead judgment on the Mabo case recognised for the first time under Australian law that Indigenous peoples had lived in Australia for thousands of years and their rights to their land according to their own laws and customs had never been extinguished.

Friday is the 30th anniversary of the judgment.

The High Court said in a statement on Thursday Sir Gerard’s contribution to the legal system was profound.

“He was a model of judicial restraint. He was a man of deep humanity and was held in great esteem and affection by those who had the fortune to sit with him”.

A ceremonial sitting of the court to honour him will be held in August.

Attorney-General Mark Dreyfus said Sir Gerard was one of Australia’s greatest legal minds.

“A brilliant, compassionate man whose life devoted to the law made Australia a better, fairer and more decent nation,” Dreyfus said in a statement.

Gerard Brennan was born in Rockhampton, going to school there at Christian Brothers College and, later at Downlands in Toowoomba. He studies arts and law at the University of Queensland and was admitted to the Queensland Bar in 1951.

He became one of the first Catholic barristers to cross the sectarian line that divided the Brisbane bar at the time, by receiving briefs from the Protestant end of town.

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In 1953 he married Patricia O’Hara. They had seven children, with the eldest, Frank, becoming a lawyer, Jesuit priest and prominent Aboriginal rights advocate.

Elevated to the High Court bench in 1981, his lasting legacy is the rejection of the notion of “terra nullius” in the Mabo case in what has been described as the the “most comprehensive, influential and memorable of all the judgments handed down to date by the highest court in Australia”.

Sir Gerard was hurt by claims he was influenced by his son.

“Frank and I both understood with unquestioned clarity the importance of ensuring that neither of us affected the work of the other by reason of the work in which we ourselves were engaged,” he said years later.

In 1996, after becoming chief justice, he was in the minority in the Wik case when he held that pastoral leases extinguished native title.

In his later life, Sir Gerard was a campaigner for social justice and was a prominent advocate for a national integrity commission.

-with Don Woolford

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