Sir Maurice Hearne Byers CBE QC and the Constitution: A Legal Intellectual Biographical Examination

Abstract

Sir Maurice Byers CBE QC has been described as one of Australia's finest constitutional lawyers who never sat on the High Court bench. He himself described an advocate's contribution to the development of the law as "second hand, contingent and transmuted". This thesis examines Byers' diverse professional interactions with the Commonwealth Constitution through a legal intellectual biographical lens. Legal biography is not yet a method of choice for legal scholars in Australia. However, the creative synthesis that legal intellectual biography can produce provides an insightful, realist perspective on developments in legal doctrine. Through the collection and critical appraisal of diverse traditional and non-traditional sources, including transcripts of oral argument in constitutional litigation, archival sources, Opinions written by Byers as Solicitor-General, oral history records and memoir, the foundations of Sir Maurice's constitutional philosophy and philosophy of advocacy emerge. The cornerstone of his constitutional philosophy is an expansive notion of the significance of 'nationhood' to the Commonwealth Constitution and its impact on the development of constitutional jurisprudence. The evidence of the exercise of his agile intellect in respect of an extensive range of complex constitutional legal and policy challenges supports the argument that the outstanding constitutional advocate may make a contribution to constitutional jurisprudence; second hand, contingent and transmuted though it may be. The work of the Constitutional Commission and its final report further demonstrates a sophisticated constitutional philosophy at work. Byers' late written and oral advocacy contains some of his most creative arguments, grounded in his constitutional philosophy. A key message of this thesis is that contributions by individuals, as highlighted by the biographical research lens, may usefully complement the diverse range of contemporary research methods employed by legal scholars in the area of Australian constitutional law, and that advocates, as well as judges, may be worthy legal biographical subjects, especially where legal intellectual biographical method is utilised. Show more