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The Sydney Morning Herald

Pickwickian figure helped shape nation

Date: 19/01/1999
Words: 919
          Publication: Sydney Morning Herald
Section: News And Features
Page: 4


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 reformer.

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 advocate.

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 greater protection."

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.

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