John
Jefferson
Bray
A Vigilant Life
John Emerson
Foreword by The Hon. Michael Kirby AC CMG
© Copyright 2015 John Emerson
All rights reserved. Apart from any uses permitted by Australia’s Copyright
Act 1968, no part of this book may be reproduced by any process without
prior written permission from the copyright owners. Inquiries should be
directed to the publisher.
Monash University Publishing
Matheson Library and Information Services Building
40 Exhibition Walk
Monash University
Clayton, Victoria 3800, Australia
www.publishing.monash.edu
Monash University Publishing brings to the world publications which
advance the best traditions of humane and enlightened thought.
Monash University Publishing titles pass through a rigorous process of
independent peer review.
www.publishing.monash.edu/books/jjb-9781922235619.html
Series: Biography
Design: Les Thomas
Cover image: Erika Clarke
National Library of Australia Cataloguing-in-Publication entry:
Creator: Emerson, John, author.
Title: John Jefferson Bray : a vigilant life / John Emerson.
ISBN: 9781922235619 (paperback)
Notes: Includes bibliographical references and index.
Subjects:
Bray, J. J. ( John Jefferson), 1912–1995.
South Australia Supreme Court.
Judges--South Australia--Biography.
Justice, Administration of--South Australia--History.
Dewey Number: 347.94035092
Printed in Australia by Griffin Press an Accredited ISO AS/NZS
14001:2004 Environmental Management System printer.
The paper this book is printed on is certified against
the Forest Stewardship Council ® Standards. Griffin
Press holds FSC chain of custody certification SGSCOC-005088. FSC promotes environmentally
responsible, socially beneficial and economically viable
management of the world’s forests.
C ontents
Acknowledgements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
Foreword by The Hon. Michael Kirby AC CMG . . . . . . . . . . . . . . . . . . . . . vii
Prologue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii
Chapter 1
Athens, 1974. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Chapter 3
Adelaide, 1912 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Chapter 2
Chapter 4
Chapter 5
Chapter 6
Pocahontas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Bacchus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Voyage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Papinian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Chapter 7
Silk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Chapter 9
Watershed 1959. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Chapter 8
Charles Jury Dies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Chapter 10
Defending Rupert Murdoch. . . . . . . . . . . . . . . . . . . . . . 122
Chapter 12
The Last Man Hanged in South Australia. . . . . . . . . . . 159
Chapter 11
Chapter 13
Chapter 14
Chapter 15
The Poet Lawyer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
Dunstan’s Choice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
Chief Justice 1967–1978 . . . . . . . . . . . . . . . . . . . . . . . . . 189
The Dramatic Dunstan Decade . . . . . . . . . . . . . . . . . . . 205
Chapter 16
For Better or For Worse . . . . . . . . . . . . . . . . . . . . . . . . . 244
Appendix
John Bray’s Response to the Police Surveillance Files. . . 260
Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
Index of Selected Proper Names and Specific Terms . . . . . . . . . . . . . . . 269
Ack nowledgements
The publisher would like to thank The Advertiser and individual photographers
for permission to reproduce photographs of John Bray.
– vi –
For ewor d
The Hon. Michael Kirby AC CMG*1
John Jefferson Bray served with distinction as Chief Justice of the Supreme
Court of South Australia from 1967 to 1978 and as Chancellor of the
University of Adelaide from 1968 to 1983. He derived from a distinguished
colonial family. He was educated in expensive boarding schools. He won
a rare doctorate of laws degree for research on aspects of insolvency and
private international law. He took silk at an appropriate age. He appeared in
lots of important cases, including in the High Court of Australia. For a time
he served as deputy to the Lieutenant Governor of his State. On the face of
things, the reader might think that someone who had followed this golden
path to high judicial office and public service would be worthy – but unlikely
to have lived a life that would set the pulse racing.
However, as John Emerson’s new biography shows, Bray, whilst being an
outstanding lawyer and judge, was anything but a stereotype. Especially for
his time and place, South Australia in the second half of the twentieth century,
Bray was unique: a one off. The central interest of this biography lies in
unravelling the puzzle of how such a gifted legal scholar, advocate and judge
could, at the same time, live a life that so outraged the orthodox expectations
that descended upon him. And how he managed to remain steadfastly himself,
despite the pressures imposed to conform to the contemporary standards of
his class, profession and high offices.
Let there be no doubt that Bray was an exceptionally gifted lawyer and
jurist. His LLD, like that of H.V. Evatt earlier in Sydney, was not honorary. It
*1
Justice of the High Court of Australia (1996–2009); Chair of the United Nations Commission
of Inquiry on North Korea (2013–14).
– vii –
Cha pte r 1
Athens , 1974
But I left with high steps, for the moment convinced of two propositions,
Propositions I had always hoped and sometimes believed to be true,
One concerning the power of the arts, one concerning the nature of man.
John Bray, from ‘Epidaurus 1974’
The sun seemed to beat down on Athens even hotter and harder that late
July afternoon. The temperature was rising, and so were the Athenians. The
colonels’ military dictatorship had outstayed its welcome.
It was late July 1974. A week earlier in Cyprus, the colonels had sponsored
a coup d’état, replacing President Makarios with a newspaper photographer,
Nikos Sampson. Five days later the Turks invaded Cyprus, removed the
freshly appointed President Sampson, and now it looked like they would also
invade Greece.
The colonels were panicking. They called up all available men to fight and
imposed a dusk-to-dawn curfew. Tourists were abandoning the Greek capital
as fast as they could, but the airport was closed and many were stranded.
In the old Plaka district, the Electra Palace Hotel sat at the foot of the
northern slope of the Acropolis under the gaze of the Parthenon. The males
among the hotel staff were among those called up, so guests were filling in as
amateur cooks and waiters.
One of the guests, not taking on a service role, was defying the blistering
heat and climbing up to the Parthenon. This was his first trip to Greece and
his first trip outside of far-off Australia in 37 years. It might be his last chance
to see the aging architectural triumph of the classical period.
– 1 –
Cha pte r 4
Bacchus
Zeus streams down the rain. A great storm approaches out of Heaven.
The flowing rivers have been stiffened into floors of ice.
Throw down the storm, pile up the fire.
Let us drink large quantities of very sweet wine
And put on funny hats.
John Bray, adaptation from Alcaeus: ‘Drinking in Winter’
John wanted to study arts at university, but his parents advised him to do
law as it held more promise of a career. So in 1929, still only 16 years old,
he began his first year as a law student, studying some arts subjects such as
European History.
Four of his university essays survive, in handwriting that is neat and
readable. One is entitled ‘Elements of Law’, and it begins: ‘More than any
other system of law past or present, the English system relies on precedent
or case law. It is the second source of English law and while it lacks the
final clear-cut and arbitrary force of legislation, it is far more extensive and
detailed.’1 A few pages later John broaches the continuing debate of whether
judges create law:
But are we then to admit that English law is made by judges? Here we are
confronted by two conflicting opinions. One, the older theory, declares
that judicial decision is only a declaration and exposition of what was
already the Common Law which has existed from time immemorial.
1
Bray Papers, SLSA, PRG 1098/68.
– 25 –
C hief J ustice 19 67 –19 78
First day as Chief Justice of South Australia, 1 March 1967.
The Advertiser, with permission.
McKinna. This leads back to one person, Justice Roderic Chamberlain, long
before promised the appointment to Chief Justice by Playford.5
Between the time of John’s first day as Chief Justice and the time of
writing about the police reports, there had also been a further attack on him.
Sir Mellis Napier was trying to convince John to join the Adelaide Club, but
even Sir Mellis was not prepared for the subsequent blackballing. He first
wrote to John on 28 March:
5
Don Dunstan in Felicia, already cited, p. 115.
– 19 7 –
J o h n J e f f e r s o n Br ay
This trip included the momentous trip to Epidaurus, where the Greek
colonels skulked out of the performance of Prometheus Bound, later from
the country when the Turks arrived, and Bray and Ward had to flee by boat.
Peter Ward resigned from his job with Dunstan in March 1976, and
joined The Australian later that year as Bureau Chief and Senior Writer.
In 1977 he published a series of feature articles exposing the existence of
the police surveillance files that surfaced back in February 1967 when John
McKinna produced the record kept on Bray.
Dunstan had seemed unconcerned at their existence since then, but in 1974
the Whitlam government in Canberra appointed Justice Robert Hope, then
a Court of Appeal judge in New South Wales, to conduct a Royal Commiss­
ion into Intelligence and Security in Australia. Justice Hope interviewed
Don Dunstan in 1975. Dunstan reported the subsequent events in a speech
to the House of Assembly in January 1978, in his political memoirs, Felicia:
From him I learned that on his information Special Branches had a
much wider role than the limited one of which I had been informed in
1975. In consequence of Mr Justice Hope’s inquiries, a minute from the
Director of my department was sent to the Commissioner of Police in
June, 1975, and on July 1, 1975, the Commissioner of Police sent a reply
which was couched in vague and general terms.60
The next 12 pages of Felicia reproduce the speech. The reader learns that
after those two inquiries sent from Dunstan’s office in 1975, nothing else
happened until mid-1977. In 1975 Peter Ward was still working for Dunstan;
in 1977 he was the Adelaide bureau chief for The Australian.
The editors and bureau chiefs all conferred by a weekly teleconference.
One week in mid-1977, they decided to all write to their respective State’s
Police Commissioners:
As some of us expected, most commissioners ignored the request. Only
one police force came up with a form of words and some fudging. In
60
Felicia, pp. 285–297.
– 2 32 –
J o h n J e f f e r s o n Br ay
Early 1978, turbulent times in South Australia.
The Advertiser, with permission.
– 240 –