Walk from the High Court of Australia towards the National Library, and you’ll encounter something unique in the Australian landscape: a monument not to a soldier or a politician, but to a court judgment. Etched in steel are the powerful words of Sir Gerard Brennan, from a decision that forever changed the nation:
“The common law of this country would perpetuate injustice if it were to continue to persist in characterising the indigenous inhabitants of Australian colonies as people too low in the scale of social organisation to be acknowledged as possessing rights and interests in land.”
The case, of course, is Mabo. But who was the man who penned these transformative words?
In a recent Late Night Live interview, journalist David Marr sat down with Frank Brennan—priest, lawyer, and son of Sir Gerard—to discuss a new two-volume collection of his father’s papers. The conversation peels back the layers of a quiet, humble man whose life and career were a fascinating intersection of law, faith, and a deep-seated sense of justice, culminating in one of the most significant legal decisions in Australian history.
The Making of a Legal Mind
Born in Rockhampton, Queensland, in 1928, Gerard Brennan was shaped by three powerful forces: he was from a Labor family, a legal family, and an Irish Catholic family. His Irish heritage was not just a line in his biography; it was a core part of his identity. As Frank Brennan explained, this background gave his father a “shrewd understanding of the excesses of government and of authority,” an understanding sharpened by practicing law during the controversial era of Sir Joh Bjelke-Petersen’s premiership in Queensland.
This wasn’t a man who saw the law as a static, dusty set of rules. He was a “nudger.” It was a concept he picked up from the British Law Lord, Lord Diplock, who once remarked that most judges are “little nudges,” gradually developing the common law. But, Diplock noted, “every now and again, there will be a Lord Mansfield”—a reference to the judge who famously declared slavery illegal in England.
Years later, at Sir Gerard’s retirement, the eminent jurist Hal Wootton would remark that while many had nudged the law along on Aboriginal land rights, “Australia needed its Lord Mansfield, and that was Gerard Brennan.”
The Long Road to Mabo
The Mabo judgment of 1992 was no sudden revelation. It was the culmination of decades of experience and a slow-burning education in the realities of Indigenous Australia. Frank Brennan traces his father’s journey back to the 1960s and 70s. It began with representing Indigenous Fijian landowners against an Australian company, introducing him to the concept of native title. It continued in Papua New Guinea, in a politically charged murder case that was, at its heart, about land rights.
His first deep dive into the issue in Australia came during the Woodward Royal Commission, where he acted as counsel for Aboriginal people. It was here that he passionately, though unsuccessfully, argued for Indigenous ownership of minerals on their land. He prophetically told the commission that whatever they recommended would be the “high water mark of what is achievable by Aboriginal people.”
This work left him with a sense of “unfinished business.” As Frank Brennan points out, a strange quirk of fate helped educate the entire High Court on the matter. The Northern Territory government of the time relentlessly appealed the provisions of the Aboriginal Land Rights Act—legislation his father had helped architect. For a decade before Mabo, case after case landed on the desks of the High Court judges, schooling them in the complex realities of land rights.
Conscience, Law, and Community Values
Throughout his career, Sir Gerard Brennan wrestled with the tension between the letter of the law and the demands of conscience. He believed the common law, the judge-made law, had to evolve in line with the “contemporary values of Australian society.”
The Mabo decision was possible, in part, because of the Australia Acts of 1986, which finally severed the last legal ties to the United Kingdom. This gave the High Court the freedom to declare and develop a common law for Australia, by Australians. For Brennan and his colleagues, this meant they could no longer let the nation’s laws be “frozen in an age of racial discrimination.”
The result was a landmark judgment that overturned the doctrine of terra nullius and recognized native title for the first time. It was a decision that, as Frank Brennan described it, was crafted to win not just legal acceptance, but community acceptance over time. And over 30 years later, its fundamental principles remain unchallenged.
Sir Gerard Brennan, the humble man who was once met with disbelief by young people at the Garma festival when he pointed to his own words on a placard and said, “You know, I wrote that,” left an indelible mark on Australia. He was more than a “nudger”; he was the Lord Mansfield the country needed.