SIR MAURICE BYERS
1917 - 1999
Once described as a Pickwickian figure because of his quick wit, twinkling
blue eyes, cheerful face, plump figure and flowing grey hair, Sir Maurice Byers
was often seen walking the precincts of Phillip and Macquarie streets -
straddling the law and the workings of government.
He had acquired a well-lived girth, as wide as his knowledge of the
Australian Constitution. Sir Maurice Hearne Byers, who died aged 81 at the
weekend, played a central role in constitutional issues that shaped the nation
such as the dismissal of the Whitlam Labor government and the Franklin Dam case.
Governments frequently called on his expertise, not only as a lawyer but as a
He was the first chairman of the NSW Police Board, which was established by
the NSW Labor government when corruption was exposed in the early 1980s. Later,
he was selected by the Labor government to chair the Constitutional Commission.
He argued causes that did not have the backing of the establishment, notably
the Wik land rights case. He also represented Gregory Wayne Kable, the first man
imprisoned in NSW under the Community Protection Act without having been
convicted of a crime.
In between, Sir Maurice served as the Australian government's legal adviser
while solicitor- general between 1973 and 1983.
It was during this period that Sir Maurice became involved in perhaps the
most controversial and divisive constitutional issue in Australia's history -
the November 1975 dismissal of the Whitlam Labor government by governor-general
Sir John Kerr.
His predecessor as solicitor-general, Bob Ellicott, QC, had since entered
Parliament and was serving as a front bencher in Malcolm Fraser's opposition. As
the governor-general sought a resolution to the crisis caused by the
Opposition-dominated Senate blocking Supply, Ellicott offered advice that the
government could be dismissed from office.
The Ellicott opinion was later supported by the advice the then chief
justice, Sir Garfield Barwick, privately gave to Sir John on November 10, 1975.
Whitlam then sought the advice of Sir Maurice, who disagreed totally with the
Ellicott view in a 6,000-word opinion.
Sir John sacked the Whitlam government on November 11. Six days later, Sir
Maurice's opinion was leaked to The Australian Financial Review.
It acutely embarrassed both Kerr and Barwick. Sir Maurice said parts of the
Ellicott opinion were "clearly wrong" and said "the mere threat of, or indeed
the actual rejection of, Supply neither calls for the ministry to resign nor
compels the Crown's representative thereupon to intervene".
The leak undermined the justification Sir John had given for his action and
led to him disclosing the advice he had taken from the chief justice.
As the government's legal adviser, Sir Maurice enjoyed outstanding results.
He chalked up an 80 per cent success rate when appearing as the Crown's leading
In the Franklin Dam case, he persuaded the High Court to accept a wider
interpretation of the Constitution's external affairs power.
When his term ended in 1983, Sir Maurice returned to the Bar and his office
in Sydney's Wentworth Chambers. There he again changed the face of
constitutional law in 1992, successfully challenging Hawke government
legislation which sought to provide free air-time for political parties during
campaigns while banning the broadcast of any election material apart from news,
current affairs and talkback programs.
The court accepted Sir Maurice's argument in a ruling which was hailed as
effectively interpreting a freedom of speech guarantee in the Constitution.
Sir Maurice had long held the view that governments could not preserve the
freedoms of the people, but after initially championing a Bill of Rights he
eventually decided Australians would be better protected by the insertion of
basic freedoms in the Constitution.
He once told The Australian Financial Review that his views on freedom of
conscience were greatly influenced by an incident he witnessed in a courtroom
many years ago.
A young Jehovah's Witness was seeking exemption from national service as a
conscientious objector. The judge, who had been a Japanese prisoner-of-war,
asked him if he had ever seen a pencil being driven through a man's ear. The
young man said no.
"Then your belief is not reasonable; it's got nothing to do with the case,"
the judge replied.
The defence then called an elder of the church. The judge asked him the same
question. Like the judge, the elder had been a Japanese prisoner-of-war, and
like the judge, he had seen guards force a pencil into a man's ear.
The judge said that had the older man sought an exemption, he would have
granted it. He refused the younger man's request.
"That young boy was asserting a crucial right," Sir Maurice said. "There is
nothing more important than people's conscience and there's nothing that needs
Many will remember him as the finest lawyer never to have been appointed to
the High Court.
A private funeral will be held on Thursday. A memorial service is being
arranged for early February. Sir Maurice is survived by his wife, Patricia, and
their children Barbara, Mark and Peter.