The Toohey Legacy: Rights and Freedoms, Compassion and Honour

• Author: Greg McIntyre
• Position: Senior Counsel, Western Australia
• Pages: 57-77

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THE TOOHEY LEGACY: RIGHTS

AND FREEDOMS, COMPASSION

AND HONOUR

GREG MCINTYRE*

I INTRODUCTION

John Toohey is a person whom I have admired as a model of how to behave as a

lawyer, since my rst years in practice. A fundamental theme of John Toohey’s

approach to life and the law, which shines through, is that he remained keenly

aware of the fact that there are groups and individuals within our society who are

vulnerable to the exercise of power and that the law has a role in ensuring that

they are not disadvantaged by its exercise.

A group who clearly t within that category, and upon whom a lot of John’s work

focussed, were Aboriginal and Torres Strait Islander peoples. In 1987, in a speech

to the Student Law Reform Society of Western Australia Toohey said:

Complex though it may be, the relation between Aborigines and the law

is an important issue and one that will remain with us;1

and in Western Australia v Commonwealth (Native Title Act Case)2 he reafrmed

what was said in the Tasmanian Dam Case,3 that ‘[t]he relationship between the

Aboriginal people and the lands which they occupy lies at the heart of traditional

Aboriginal culture and traditional Aboriginal life’.

A University of Western Australia

John Toohey had a long-standing relationship with the University of Western

Australia, having graduated in 1950 in Law and in 1956 in Arts and winning the F

E Parsons (outstanding graduate) and HCF Keall (best fourth year student) prizes.

He was a Senior Lecturer at the Law School from 1957 to 1958, and a Visiting

Lecturer from 1958 to 1965.

After a short period of practice at Lavan and Walsh, he founded Ilbery & Toohey.

* Senior Counsel, Western Australia

1 Quoted in James Edelman, ‘A Short Biography of John Leslie Toohey AC’ (1998) 8

Journal of Judicial Administration 109.

2 (1995) 183 CLR 373, 459, in a joint judgment with Mason CJ, Brennan, Deane, Gaudron

and McHugh JJ.

3 (1983) 158 CLR 1, 274-5.

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John Toohey commenced practise at the Independent Bar in 1965, and was appointed

Queens Counsel in 1968, at the age of 38. He was a leader in the Western Australian

legal profession, having been President of the WA Bar Association in 1970 and

President of the Law Society of Western Australia in 1972-73.

B Aboriginal Legal Service

In 1973 John Toohey moved with Loma and his young family to Port Hedland,

to take up the position as the inaugural Solicitor for the Aboriginal Legal Service

of Western Australia, covering the whole of the Pilbara and Kimberley single

handed.

I recall being somewhat in awe of him and the pioneering task he was performing

when, as an Articled Clerk to the Crown Solicitor, I met him, in the course of

the Supreme Court circuit in Port Hedland in 1974. What he was doing was of

particular interest to me because I had been the Blackstone Society representative

on the New Era Aboriginal Fellowship Justice Committee in 1973-74 when it rst

received funding from the Whitlam Government to establish the Aboriginal Legal

Service of Western Australia (Inc).

The inauguration of the Aboriginal Legal Service also has a particular relationship

to the University of Western Australia. In 1972 a small group of law students,

organised by Henry Schapper (an Agricultural Science lecturer) and Andrew

Brinsden (then a 3rd year law student) travelled to various South West towns to

conduct a survey of the living conditions of Aboriginal people. I recall travelling

with the then Law Librarian, Bill Ford4, to Brookton and interviewing the

local Police Sergeant and Shire President. We returned to the Law School and

participated in a workshop which compiled the results of our survey and resolved

that we would participate in a voluntary Aboriginal legal advice service which

was being conducted one night a week by a handful of legal practitioners at the

Aboriginal Advancement Council.

The NEAF Justice Committee in 1972 was chaired by George Winterton5 (who

had recently graduated from the University of Western Australia and was tutoring

in Property Law). The inaugural Blackstone Society representative was Simon

French. In 1974 it was chaired by Robert French, who had been admitted to

practice in 1972. The Committee included Fred Chaney who had been admitted

to practice some 9 years previously and the then Solicitor-General, Ron Wilson

QC6. Associating with that group of lawyers inspired me to the career I undertook:

4 Now Emeritus Professor Bill Ford, a former Dean of the Law School of the University of

WA.

5 The late Professor George Winterton, Formerly of Sydney University and the University

of New South Wales; Robert French, ‘Vale George Winterton: Friend and Critic’, The

Australian, 21 November 2008, 27, 29.

6 The late Sir Ronald Wilson AC KBE CMG QC, former High Court Judge and former

President of the Human Rights and Equal Opportunity Commission.