Maurice Byers

Sir Maurice Hearne Byers (10 November 1917 – 17 January 1999) was a noted Australian jurist and constitutional expert.

Maurice Byers was born on 10 November 1917.

He attended St Aloysius' College in Sydney.

He studied law at the University of Sydney and was admitted to the Bar in 1944.

Byers' name is first recorded in the Commonwealth Law Reports as junior to Spender KC in Horsey v Caldwell (1946).

Byers appeared regularly in the High Court, including as counsel in the following notable cases:

In 1957 his Sydney practice in Wentworth Chambers joined those of John Kerr and Gough Whitlam.

His practice was mainly in the fields of equity, taxation, company and constitutional law.

He appeared frequently before the Privy Council.

He became a Queen's Counsel in 1960.

He was President of the New South Wales Bar Association from 1965 to 1967.

He was also a Member of the Executive Council of the Law Council of Australia from 1966 to 1968.

He was the Commonwealth Solicitor-General from 1973 to 1983, in which capacity he played a role in the Gair Affair and the 1975 Australian constitutional crisis.

He had an unmatched record of success in his appearances before the High Court of Australia, and he has been characterised as the finest lawyer never to have been appointed to the High Court.

In 1973 he was appointed Commonwealth Solicitor-General, serving until 1983.

He had an unparalleled success rate when appearing before the High Court in that capacity.

He was said to have had "mesmeric powers" over the High Court.

On entering the law, his ambition had been to become the best constitutional lawyer in the country.

His peers considered he achieved his goal.

Byers' predecessor as Solicitor-General was Bob Ellicott, who had served under Whitlam but resigned in 1973 to enter politics himself and was now a Liberal Party member of the House of Representatives and a member of the Shadow Cabinet of Opposition Leader Malcolm Fraser.

In April 1974, Byers provided a legal opinion supporting the Whitlam Labor government's argument that Senator Vince Gair had ceased to be eligible to remain a senator from no later than 20 March, the day the Irish Government had accepted his appointment as Ambassador to Ireland, which is an office of profit under the Crown.

The matter was of great interest to the Senate, which for a number of days debated Gair's letter to the Senate President advising that he had ceased to be eligible to be a senator upon his appointment (it was not a letter of resignation as such).

The Opposition argued that Gair had participated in debates and votes in the Senate until as late as 2 April, without any objections from the government, and had not tendered his letter to the President until 3 April, by which time the writs for 5 Queensland senators for the forthcoming half-Senate election were already issued.

The matter was resolved when Whitlam called a double dissolution instead of a half-Senate election.

Whitlam was now the Labor Prime Minister, and in 1974 he had appointed Kerr Governor-General.

Maurice Byers played a role in the 1975 Australian constitutional crisis, which brought his former colleagues Gough Whitlam and (now Sir) John Kerr into conflict in the most dramatic way.

As the crisis caused by the Senate's blocking of Supply deepened, Ellicott issued a legal advice on 16 October 1975, to the effect that the Governor-General had the power to dismiss Whitlam, and should do so forthwith if Whitlam could not state how he would obtain Supply.

Kerr rang Whitlam on 19 October, asking permission to consult with the Chief Justice of the High Court, Sir Garfield Barwick (who was himself a former Liberal politician and Attorney-General, and who happened to be Bob Ellicott's cousin).

Whitlam advised Kerr not to consult with Barwick, quoting precedent stretching back over 50 years.

On 21 October Kerr requested that the Government provide him with a written legal opinion rebutting Ellicott's opinion.

On 22 October Whitlam asked his Attorney-General Kep Enderby to prepare such advice, and he in turn delegated the task to his Solicitor-General, Maurice Byers, who prepared a 6,000-word document.

Enderby disagreed with parts of the advice, and when he handed it to Kerr on 6 November, he did so with Byers' name crossed out and his own inserted.

By now Kerr had determined to sack Whitlam if he would not advise an election to break the impasse and guarantee Supply.

But he formed the view that Whitlam should be given no hint of his thinking, and he (Kerr) should seek his own counsel.

Contrary to Whitlam's express instruction, Kerr met with Barwick and asked him for a written opinion, which was provided on 10 November, and which concurred with Ellicott's view.

On 11 November, Kerr dismissed Whitlam's government and commissioned Malcolm Fraser as Prime Minister; it was a condition of Fraser's appointment that he guarantee Supply and immediately advise a general election.

Later that day, the Senate granted Supply, an election was called for 13 December, and Parliament was dissolved in a double dissolution.

On 17 November, Maurice Byers' opinion was leaked to The Australian Financial Review, and it acutely embarrassed both Kerr and Barwick.

Byers said parts of the Ellicott opinion were "clearly wrong" and said "the mere threat of, or indeed the actual rejection of, Supply neither calls for the ministry to resign nor compels the Crown's representative thereupon to intervene".

The leak undermined the justification Kerr had given for his action, and led to him disclosing the advice he had taken from the Chief Justice, contrary to his Prime Minister's instruction.