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Williams, John M --- "Bradley Maxwell Selway: A Personal Tribute" [2005] FedLawRw 7; (2005) 33(2) Federal Law Review 181

BRADLEY MAXWELL SELWAY: A PERSONAL TRIBUTE

John M Williams^[*]

On 10 April 2005 Justice Bradley Selway died. He was 50. For those who knew and worked with Brad, as he was universally known, this was crushing news. Like many I came across Brad through a shared interest in public law, an area in which he excelled, and like many a professional interaction it turned into a cherished friendship.

My first meeting with Brad was when he agreed to chair a continuing legal education seminar in Adelaide on section 90 of the Constitution. As an inexperienced academic I was nervous and clearly portrayed that lack of confidence. He, as was his way, calmed the situation by reminding all that he should be the nervous one having just lost the States $5 billion with the High Court's decision in Ha v New South Wales.^[1]

Brad was born on 9 January 1955 in Gawler in South Australia, the son of a railway family. Like many of his generation his talents procured him a scholarship for his secondary education. At Westminster School in Adelaide he indulged his passion for knowledge. At the time of his appointment to the Federal Court of Australia he commented:

I was lucky first in my choice of parents and siblings. I am well aware of the sacrifices that they have made to ensure that I was properly educated. Westminster School gave me a full scholarship for my secondary education, I had good teachers, and I made many friends that have remained with me ever since. I think I was the first Selway to go to university.^[2]

His legal education was at the University of Adelaide where he studied from 1973 to 1976. He enjoyed his time at Law School not least for his formal education in the law but for the additional benefits: 'In my four years there I did not miss a midday movie, a record of which I remain inordinately proud.'^[3] He graduated with honours and commenced his articles with the then South Australian Crown Solicitor Graham Prior QC in 1977. This was to be the start of a career as a government solicitor. He was rightly proud of the fact that he worked in the public sector. His fearlessness and energy underscored a traditional approach to public administration.^[4] He was appointed Crown Solicitor in 1989 and with the assistance of a Chevening Scholarship he studied the organisation of legal services in the British Government at the University of London in 1990. He was appointed a Queen's Counsel in 1994 and South Australian Solicitor-General in 1995. He would hold that position until his appointment to the Federal Court in November 2002.

These bare statements of Brad's career trajectory indicate, but say little about, his talents and the man beneath. His ability to work was the stuff of legends. As Chief Justice Doyle recently noted:

Brad was a prodigious worker. He seemed to have boundless energy and enthusiasm for his work. Not only did he put in a huge effort. He worked quickly and efficiently. Whatever the issue, he would read widely and produce written material quickly.^[5]

Brad's ability to find workable solutions to practical problems coupled with his cool head in times of crises were doubtless key assets during some testing times in State public administration. The near collapse of the State Bank of South Australia in the late 1980s was one such time when the stakes were indeed high. Brad, with the then Under Treasurer Peter Emery, was part of the two-person team that found a path through the troubles.^[6] Brad once joked that in finding himself in charge of a bank he felt very much like Sir Edward Carson when he was made First Lord of the Admiralty in 1916: 'My only qualification for being put in charge of the Navy is that I am very much at sea'.^[7] The fact that a solution could be found that did not result in a fire sale was a credit to him.^[8]

In the area of native title the Attorney-General of South Australia, Michael Atkinson MP, paid a tribute to Brad for devising a settlement process through State-wide agreements. 'The people still involved in the negotiations from Brad's time carry the flame of his energy and commitment and know that he had it right.'^[9]

Brad's contribution to public law in Australia crossed the often exaggerated divide between practice and legal scholarship. Briefly, it is possible to highlight three areas of particular influence.

No doubt Brad will be remembered by many for his advocacy in superior courts and the High Court of Australia in particular. As Crown Solicitor and later as Solicitor-General Brad developed, with John Doyle QC (his predecessor as Solicitor-General), an enviable reputation for their work in the High Court. Many of the critical cases of the period were assisted by the close reasoning and often novel approach offered by the two South Australians. In cases like Cole v Whitfield^[10] and Ha v New South Wales the use of historical material was employed to break the seemingly inescapable knots that the jurisprudence had bound itself in. Reflecting on Cole v Whitfield Chief Justice Doyle paid this compliment to Brad:

In 1987 he and I appeared before the High Court in Cole v Whitfield. This was a major case. In it the High Court took a completely new approach to the famous s 92 of the Australian Constitution. The decision of the High Court was influenced to a significant degree by material found in the record of Convention Debates between about 1890 and 1900, being the debates on proposed Australian Constitutions that were considered in the 10 years or so prior to federation. Although I had the privilege of presenting that argument, it was Brad's idea to delve into the material. It was Brad, and researchers guided by him, who searched the record of Debates and produced the volumes of material that we put before the Court. This was the first case in which the High Court embraced the use of materials of this kind, and it resulted in a string of cases in which they did. At the end of the day, this was Brad's idea.^[11]

In asking Brad about appearing before the High Court he assured me that there were only two things that could be possibly lost: 'the case and your reputation.' A review of the transcripts of the High Court cases indicates that he was generally listened to when presenting argument, a state of affairs that not all advocates were so fortunate to encounter.^[12] The Commonwealth Solicitor-General, David Bennett AO QC, has reflected on that reputation as an advocate:

When the solicitors-general of Australia gathered to appear in a constitutional case, our first question was always 'is Brad appearing'. If he was, two things followed. First, we would all have to improve our game to deal with the increased standard he would bring to the case and secondly we all looked forward to the social programme in the evening after the case.^[13]

Coupled with Brad's creative and meticulously researched arguments was an eye for the bigger picture. As a long-term advocate before the Court he attempted to shape the direction the law should take. A strategic litigator he intervened not only to assert the interests of the State of South Australia in the particular case but also to establish principles which he hoped to mine in future visits. With the agreement of successive Attorneys-General he was able to intervene to advance views regarding the appropriateness of applying decisions like Kable v Director of Public Prosecutions (NSW) to the States and the operation of native title.^[14] Brad aimed high and had plans for an assault on the Boilermakers' Case if ever the opportunity presented itself.^[15]

At close quarters he observed and made assessments of the various approaches to the Constitution by members of the Court. Describing all Australian High Court judges as being fundamentally 'textualists' he concluded that:

if the text is sufficiently clear and if the result of a textual interpretation is sufficiently acceptable, then all of the judges will generally not look at extrinsic material except to the extent that it confirms the textual approach.^[16]

In his analysis he concentrated upon the stated approaches of Justices Kirby and McHugh concluding that the rest of the Court had declined to commit to a particular constitutional theory. These were, in Brad's words, the 'flexible five'.^[17] His assessment of the Court and its approach to constitutional interpretation did not go unnoticed.^[18] Justice Callinan conceded that he for one was pleased with the descriptor. 'I did rather like being described as one of the flexible five. It suggests an easy-going, relaxed group of friendly people. It has a much better ring about it than, for example, the "Dirty Dozen"'.^[19]

A second feature of Brad's contribution to public law was his legal scholarship. His works on public law include two standard texts, Public Law and the South Australian Crown (1990, 2^nd ed, 1992) and The Constitution of South Australia (1997). His treatise on the South Australian Constitution is a concise account of the area and remains the leading resource. It has been cited by Supreme Courts^[20] and the High Court^[21] and reached for when constitutional issues arise in South Australia. Beyond these two works Brad published at a rate and quality that would exceed most full time legal academics. His articles can be found in national journals such as the Adelaide Law Review, Australian Bar Review, Federal Law Review, Monash Law Review, Public Law Review, Torts Law Review and University of Tasmania Law Review. There would be very few public law conferences or meetings in Australia and overseas at which Brad had not been asked (or offered) to present a paper. Conference organisers had in Brad a mainstay who could be relied upon to participate with his usual diligence, quality and humour.

A final aspect of Brad's contribution to public law was his leadership in legal education. He was a mentor to so many young lawyers. His belief in the importance of well trained and professional public sector lawyers manifested itself in a commitment to unlocking the promise within those who came into contact with him. Very few, even after they ceased to work for or with him, left the orbit which his wise and steady counsel provided.

In the broadest sense Brad was willing to engage in the work of legal academics and to foster greater understanding of the role of public law in the community. In 2002 he was appointed an Adjunct Professor of Law at the University of Adelaide. There he made himself available as a supervisor to research students and as a guest lecturer for students. At one such lecture he demonstrated his prowess with technology with a computer display that had text, images and sound erupting from within the theatre. His efforts set a standard to which my shabby overhead projector slides were never going to compete. A point not lost on the students.

Brad's membership of the Australian Association of Constitutional Law from 1999 provided another opportunity for him to strengthen the link between the communities of public lawyers. He served as a Council member, Secretary and was elected as President in 2005. Members of the Association will miss his leadership and comradeship.

Brad was a great enthusiast. He was willing to engage in the world of ideas. Prior to Brad's death his interests appeared to be becoming more eclectic. He had developed a taste for Admiralty Law which may have been no coincidence. His first appearance in the High Court as a junior was China Ocean Shipping Co v South Australia.^[22] The case involved the applicability of the Merchant Shipping Act 1894 (Imp) and the limitations that it may have placed on the owner's liability. The South Australian submission that the UK Parliament ceased to have any power to pass law effective in Australia as of 1 January 1901 was greeted with derision by Chief Justice Barwick. He stated that it seemed to 'represent a very quaint aberration, not only unsupported by any authority but contradicted by decisions of this Court. Moreover, it seemed to me to betray a lack of appreciation of the constitutional history of this country.'^[23] With the enactment of the Australia Act 1986

(Cth) and the Australia Act 1986

(UK), amongst other things, Brad would see the constitutional history change to acknowledge a new reality.^[24]

Brad, I suspect, secretly thought of himself in nautical terms. His eclectic musical taste ran the full gamut from country to contemporary and from Leonard Cohen to light opera. At the time of his death a standard CD in the car was a recording of H.M.S. Pinafore with which he enjoyed a sing-along. Doubtless Brad harboured ambitions like Sir Joseph Porter to rise from article clerk to 'ruler of the Queen's Navee' by sticking 'close to his desks and never going to sea'. Unlike Sir Joseph, Brad's particular impediment was that of an independent mind.

In one of our last conversations he indicated that he was about to embark on a paper on Chapter III and the territories. He outlined his new theory on the problem and suggested that section 109 provided an answer. Lost on the listener were the intrigues of the argument and the cross-currents of the jurisprudence and history which he detected. I only wish I had taken notes.

Despite a number of close runs South Australia has never had a High Court appointment.^[25] Brad undoubtedly had the capacity to have held that high office. As David Bennett commented; 'He was a great judge whose career may well, in future years, have taken him to the High Court.'^[26]

Brad Selway was, of course, more than a public lawyer. He was a devoted husband and father. The public lawyers have lost a friend, but this is as nothing compared to the loss experienced by his family. Our thoughts go out to Christine, Jennifer and Katherine.

In summing up his all too brief time on this earth Brad at his swearing in as a Federal Court judge said it has been a 'lucky life'.^[27] In meeting him, the luck was all mine. Vale Brad Selway.

^[*] Reader, Faculty of Law, Australian National University. For their comments, thoughts and reminiscences I would like to thank the following: David Bennett, Julie Davey, John Doyle, Jane Cox, Rachael Gray, Clem Macintyre, Rob Meadows, Tom Pauling, Christine Selway, Fiona Wheeler and David Wright.

^[1] [1997] HCA 34; (1997) 189 CLR 465.

^[2] Ceremonial Sitting of the Full Court of the Federal Court for the Swearing in and Welcome of the Honourable Justice Selway, 19 November 2002.

^[3] Ibid.

^[4] See Bradley Selway, 'The Duties of Lawyers Acting of the Government' (1999) 10 Public Law Review 114; Bradley Selway, 'Management Structures for Government Lawyers' (2000) 59 Australian Journal of Public Administration 105.

^[5] Justice John Doyle, 'Bradley Maxwell Selway', eulogy delivered in Adelaide, 14 April 2005.

^[6] Ibid.

^[7] Brad quoted the same passage in a paper on the current state of public administration in the federation: Justice Bradley Selway, 'The "Vision Splendid" of Ministerial Responsibility Versus the "Round Eternal" of Government Administration' in Clement Macintyre and John Williams (eds), Peace Order and Good Government (2003) 168.

^[8] Michael Atkinson MP, Ceremonial Sitting of the Full Court of the Federal Court to Pay Tribute to the Late Justice Bradley Maxwell Selway, 23 May 2005. See Bradley Selway, 'Managerialism and the Implied Guarantee' (1995) 54 Australian Journal of Public Administration 370.

^[9] Selway, 'Managerialism', above n 8. One of Brad's last major decisions on the Federal Court was in the area of native title. See Gumana v Northern Territory of Australia [2005] FCA 50. See generally Bradley Selway, 'The Role of Policy in the Development of Native Title' (2000) 28 Federal Law Review 403.

^[10] [1988] HCA 18; (1988) 165 CLR 360.

^[11] Doyle, above n 5.

^[12] See Justice Ian Callinan, 'The Queensland Contribution to the High Court' in Michael White and Aladin Rahemtula (eds), Queensland Judges on the High Court (2003) 213 where he described Brad's arguments before the High Court as 'always interesting, informative and thoughtful. They were often novel and creative'.

^[13] David Bennett, 'A Tribute to the Hon Justice Bradley Selway', Ceremonial Sitting of the Full Court of the Federal Court to Pay Tribute to the Late Justice Bradley Maxwell Selway, 23 May 2005.

^[14] [1996] HCA 24; (1996) 189 CLR 51. See Bradley Selway, 'The Different Role of an Australian Attorney-General' (2002) 13 Public Law Review 263, 270.

^[15] R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254. A snapshot of his 'functional' approach to judicial power can be seen in his dissenting judgment in Civil Aviation Safety Authority v Boatman [2004] FCAFC 165; (2004) 138 FCR 384, 410-3 [76]-[80].

^[16] Justice Bradley Selway, 'Methodologies of the Constitutional Interpretation in the High Court of Australia' (2003) 14 Public Law Review 234, 239.

^[17] Ibid 246.

^[18] See for instance Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 372 [51] and Justice Michael McHugh, 'The Constitutional Jurisprudence of the High Court: 1989-2004: The Inaugural Sir Anthony Mason Lecture in Constitutional Law', Banco Court, Sydney, 26 November 2004.

^[19] Callinan, above n 12, 214.

^[20] For example, SA Fishery Association v South Australia [2003] SASC 174; (2003) 85 SASR 373, 392 [111]; Marquet v Attoney-General (WA) [2002] WASCA 277; (2002) 26 WAR 201, 263 [265].

^[21] Attorney-General (WA) v Marquet (2003) 202 ALR 223, 260 [115]; Solomons v District Court of NSW [2002] HCA 47; (2002) 211 CLR 119, 168 [136].

^[22] [1979] HCA 57; (1979) 145 CLR 172.

^[23] Ibid 181.

^[24] Sue v Hill [1999] HCA 30; (1999) 199 CLR 462.

^[25] Troy Simpson, 'Appointments That Might Have Been' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 23-7.

^[26] Bennett, above n 13.

^[27] Selway, above n 2.