The Honourable Sir Francis Gerard Brennan AC KBE GBS (1928-2022)

Sir Gerard Brennan died on 1 June 2022.  Without a doubt, he was in the ranks of the most distinguished Australian legal figures of the twentieth century.

He was born in Rockhampton, in Central Queensland, on 28 May 1928.  He underwent his secondary education at Downlands College in Toowoomba. In 1953 he married Dr Patricia O’Hara, who died in 2019.  They had four daughters and three sons, including Madeline Brennan KC of the Queensland Bar.

He was called to the Queensland Bar in 1951. He took silk in 1965. He enjoyed a celebrated practice as a silk. In 1974 he served as President of the Bar Association of Queensland. In 1975 he served as President of the Australian Bar Association.

In 1976 Sir Gerard was appointed in the Inaugural President of the Commonwealth Administrative Appeals Tribunal. In 1977 he was appointed a Judge of the Federal Court of Australia. In 1981 he was appointed Judge of the High Court of Australia, filling the vacancy left by Sir Garfield Barwick, and he was knighted.  In 1995 he was sworn in as the tenth Chief Justice of the High Court. He retired in April 1998.

The eulogy at Sir Gerard’s funeral was delivered by Sir William Deane. Madeline Brennan KC delivered a touching tribute.

Vale the Honourable Sir Francis Gerard Brennan AC KBE GBS (1928-2022).

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Tribute to Dad

On behalf of our family, Tom has welcomed all of you present here today in person and by live stream. We have all shared in Dad’s life in various ways. I now have the privilege of offering a family tribute to our loyal and loving father.

Thank you Senator Dodson for your acknowledgement of country and tribute to a “true boss”. Dad cherished the lessons and honours afforded him by indigenous elders who demonstrated to him the long-lived experience of the coherence of place, body and spirit.

“In Dad’s life, the imperatives that, seemed to me, to have most informed his being were: to act justly, to love tenderly and to walk humbly with his God in the service of others. He expressed these values in his public life of service, and in his private life as a family man”

Senator Dodson, our gratitude for your acknowledgement takes on a further personal dimension. Dad’s great grandmother, on the Brennan side, as a widowed mother with five children, migrated from Ireland in 1863 on the second of the imperial boats to arrive off the shores of Maryborough. It anchored off the coast, not knowing where to disembark. Two of the crew rowed to shore. They found two members of the Butchelor nation who walked 40 km to Maryborough to raise the alert, whereupon a pilot boat was dispatched and, two days later, the David McIvor and her 414 passengers were brought to safety. We remain indebted for that early and critical welcome of our ancestral offshore arrival.

Dad was a man of quiet dignity. He lived a reflective life, true to his values. His values were Gospel values. In Dad’s life, the imperatives that, seemed to me, to have most informed his being were: to act justly, to love tenderly and to walk humbly with his God in the service of others. He expressed these values in his public life of service, and in his private life as a family man.

TO ACT JUSTLY

Justice was at the core of Dad’s being. It was not law, but the imperatives of justice that guided his reflection. As Senator Dodson has told us he committed his professional life to working the tension between law and justice. In his private life, it was manifest in his interest in, and civility to all, and in his commitment to the more vulnerable, particularly through active participation in the St Vincent de Paul Society.

Dad valued independence of thought. He preferred a lonely road with freedom, lived according to principle, to the pursuit of success or accolades that required any sacrifice of independence. Our parents encouraged each of us to find our own pathways, to be independent, and to live with integrity and purpose. They gave us a strong framework for discerning the meaning of our own lives and relationships, always knowing there was a safe harbour of home.

Dad was committed to the pursuit of excellence. He spoke of the ‘artisan judges’ who developed the common law. He knew that the daily workings of a lawyer may not be glamorous and that a rigorous attendance to the law, mindful of one’s underlying purpose, played a pivotal role in creating and preserving fair and good ways of life in our society. Our most treasured moments were in the day-to-day of family life: Dad’s waiting on the curb for your tram to leave; meeting and becoming friends with his colleagues; waving to tell him you were the child he could not account for in the surf; the quiet hour on the Noosa River, Lake Conjola or the Forster lakes. But he also encouraged each of us to be artisans of the trade of our choosing. And he was so proud when, in that calling, we faced the challenges of life with reflection, purpose and resilience.

At an early age, Dad was introduced to the law by his father, the central judge of the Supreme Court of Queensland, on whose shoulders he came to stand with great love and confidence.

Dad loved his time at the bar, his professional home. He considered himself fortunate indeed to work with so many colleagues of remarkable character and humanity.

Sir William Deane, thank you for the honour you have afforded Dad and all of us today with the sheer beauty of your eulogy and tributes to him. We are truly grateful.

Dad had such fond recollections of his days and relationships on the High Court, such stories invariably ending with: ‘Oh it was such fun. I enjoyed every minute of it.’ On his valedictory, he expressed his gratitude:

It has been a privilege to be engaged with and stimulated by colleagues, past and present. It is a privilege impossible to convey in words for it is based in the acknowledged integrity and industry of colleagues whose work is done in the privacy of their chambers and in the isolation of each judicial conscience…

Dad’s commitment to his judicial oath and to the need for independence was resolute. Privately, it meant that he was diligently restrained in conversations that could potentially encroach on judicial decision making and cautious in expressing views on public matters. He remained so even in retirement. Frank tells the story of when he attended St Vincent’s Bronte, the aged care home where Dad lived since the end of 2019: Another resident pressed Dad to express a view on ICAC’s treatment of the former premier. Frank jokes that no conversation could have been more off the record than this one. Ever resolute, Dad offered no view.

“His innate sense of justice remained acute, even when his body was failing him”

There were some reasoned exceptions. We have heard from Sir William of Dad’s public expressions on our country’s treatment of the “Biloela” family. Another was crafting, as recently as January 2022, the forward to the book, “Keeping them Honest”, by Stephen Charles and Catherine Williams. On 22 May 2022, our father celebrated his 94th birthday with his family. His physical energy was depleted, but in his waking moments, he spoke with elation of the news that the Nadesalingham family would be returning to Biloela and that there would be a Federal integrity body. His innate sense of justice remained acute, even when his body was failing him.

TO WALK HUMBLY

Dad travelled life with humility. His approach to judicial responsibilities reflected that character. Bret Walker SC described Dad’s Court:

‘There was a firmness which is valued by everyone, particularly in the course of the contest. But, there was a humility, a courtesy, a gentleness, a sparing of those who needed help’.

On the night before Dad’s valedictory in 1998, the family and some close friends gathered for a mass of thanksgiving and celebratory dinner. Retirement, with the health and opportunity for international travel, seemed to many of us, a wonderful alternative to the unrelenting workload of the High Court and its associated isolation for Mum. At the mass, the grandchildren were asked to express prayers of the faithful. Grandson Michael at the age of seven, concerned that grandad had lost his job, prayed that he could find a new one.

How prescient he was. Dad had a long, active and productive life after retirement. One “new job” was as a non-permanent judge on the Court of Final Appeal in Hong Kong. At the Court, there was a gentleman whose job was to deliver tea to the judges. He spoke no English and Dad spoke no Mandarin or Cantonese; but Dad, ever eloquent, did not need language to communicate respect for his fellow traveller. Dad was in Hong Kong in 2008 when he received news that his beloved grandson Michael had been tragically killed. On that day, the gentleman brought the tea cart into Dad’s chambers. Seeing Dad, he did not say a word but simply held him in a long embrace. Dad gifted, but also received so many more gifts in return from his life of commitment and humility.

AND HE LOVED TENDERLY

A Rockhampton boy, dad had a glorious childhood. The second, but first surviving, son of the Honourable Frank Tenison and Gertrude Brennan, he was the eldest of three children. Dad’s was a close and loving family, each member showing a profound concern for the welfare of the others.

His beloved sister Anne, was a nurse and social worker. His sister Mary, with whom he shared a love of literature, theology and philosophy, became an Religious of the Sacred Heart (or Religieuses du Sacré-Coeur de Jésus, RSCJ) sister, Provincial of the order and principal of Sancta Sophia College at the University of Sydney.

Another member of Dad’s birth family was Cousin Grove. He came to live with the family as the Great Depression took hold of regional Queensland. He was more of an older brother. He trained for the priesthood in Rome during Mussolini’s reign and brought back to the young Gerard, an exuberant view of a bigger world, a mastery of the romantic languages, and a knowledge of European art and opera. Dad heeded well the example of his father and Grove in travelling “to meet new faces”. Happy memories of travels shared with him abound, often with an evening glass of red, a fine meal and good conversation.

Dad was educated by the Christian Brothers in Rockhampton; and infused with the charism of the MSCs of Downlands, Toowoomba. One of Dad’s classmates at Downlands was Frank O’Hara. It was known that he had a very good looking and very bright sister, Patricia O’Hara.

MUM

In 1946, Gerard and Patricia met at Queensland University in the throng of the Newman society and student politics. All who knew Dad, know of his unyielding devotion to his wife and his family.

As our sister Anne beautifully stated in her eulogy for Mum, Mum “was the wind beneath my father’s wings and his career.”

Dad was her rock and companion. They shared a deep faith and joint purposes in life.

Dad deferred to Mum, and was in awe of her in managing, as truly wonderful and considered parents do, the various needs and wants of the family.

Dad had a keen awareness that his combined professional success and the demands of family life came at the cost of limiting Mum’s opportunities to develop her gifts as an accomplished doctor. He carried a responsibility to make the most of the opportunities that Mum gifted him. Theirs was a vibrant exchange on the finer points of morality, including medico legal principles and bioethical issues which arose through various committees, in which one or the other had an interest. Dad recounted that it was only after deep conversations with Mum that he could get right his thinking on the principles invoked, though not their application, in Marion’s Case,[1] one of his proudest judgments. Sir Anthony Mason, though of a different view from my father as to the outcome of that case has observed that the Brennan judgment “contains the best exposition in Australian law of the common law right to integrity of the person.”

In a love letter in 2003, Dad wrote Mum:

You bore our children and bestowed on them not only intelligence but the values to guide their use of it. That was because of your deep and simple faith. We have been wonderfully blessed, nowhere more clearly than when Frank celebrated the Eucharist today.

How right he was then. And how grateful and proud he would be of you, Frank, today. Frank, thank you for the abundant blessings you have bestowed on family. Thank you for the blessings bestowed on all of us today through your careful and reflective preparation of today’s liturgy in celebration of Dad’s love and his life, and in such difficult circumstances for you.

Our parents’ tender love for each other was the cradle of a vibrant family life whose flame has carried through the generations.

“Theirs was a vibrant exchange on the finer points of morality, including medico legal principles and bioethical issues which arose through various committees, in which one or the other had an interest”

The current O’Hara-Brennan family includes 21 grandchildren and 22 and three quarters, great grandchildren.

As a granddad or DiDi, as he is known to some, Dad knew how to be engaged in the moment, asking: ‘so tell me, what is your news?’ With love, he might challenge the grandkids, like he challenged their parents, in a Socratic dialogue. In the last weeks, the procedural rules were abridged: ‘tell me in five minutes, what is your news?’ And there was no challenge; just gratitude and joy as you will hear from Bernadette’s and Margaret’s children, Madeline and Cameron.

Dad was a happy and loving great-grandfather. He delighted in remembering every great grandchild’s birthday. As great grandson, Patrick noted on the receipt of something called cash, Didi made him rich.

In fact he did, because he passed on to Patrick and to all of us the greatest of legacies: the challenge to live an active and reflective life, inspired by matters of the common good, marked by generosity and open to new possibilities; all deepened by the sharing of a loyal and tender love.

As Frank has told us, on 26 May this year, Dad celebrated his deepest and abiding love for his beloved Patricia, on the occasion of their 69th wedding anniversary. After she returned to their Lord in September 2019, he missed her every day.

And so now, Dad, we celebrate your extraordinary life lived true to your Gospel values.

In granddaughter Patricia’s copy of the Mabo decision, Dad inscribed: ‘May you run the good race in all your life- with courage and endurance to bring loving kindness and hope to the lives of others.’ We celebrate that you, Dad, ran- maybe walked- that good and courageous race in all your life and you showed so many of us how we could do the same. We will always be grateful that we were companions on your journey, and that you had the love and wisdom to be the wit and mentor in ours. We miss you dearly. We are comforted knowing that Mum gives you a late anniversary embrace.

May Our Lady lead you into Paradise and to Our Lord’s Eternal love.

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[1] Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) [1992] HCA 15, (1992) 175 CLR 218.

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