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Published online by Cambridge University Press: 24 January 2025
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.
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) 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 114Google Scholar; Bradley, Selway, ‘Management Structures for Government Lawyers’ (2000) 59 Australian Journal of Public Administration 105Google Scholar.
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: JusticeBradley, 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) 168Google Scholar.
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 370Google Scholar.
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 403Google Scholar.
10 (1988) 165 CLR 360.
11 Doyle, above n 5.
12 See JusticeIan, Callinan, ‘The Queensland Contribution to the High Court’ in Michael, White and Aladin, Rahemtula (eds), Queensland Judges on the High Court (2003) 213Google Scholar 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) 189 CLR 51. See Bradley, Selway, ‘The Different Role of an Australian Attorney-General’ (2002) 13 Public Law Review 263, 270Google Scholar.
15 R v Kirby; Ex parte Boilermakers’ Society of Australia (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) 138 FCR 384, 410-3 [76]-[80].
16 JusticeBradley, Selway, ‘Methodologies of the Constitutional Interpretation in the High Court of Australia’ (2003) 14 Public Law Review 234, 239Google Scholar.
17 Ibid 246.
18 See for instance Singh v Commonwealth (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) 85 SASR 373, 392 [111]; Marquet v Attoney-General (WA) (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) 211 CLR 119, 168 [136].
22 (1979) 145 CLR 172.
23 Ibid 181.
24 Sue v Hill (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) 23-7Google Scholar.
26 Bennett, above n 13.
27 Selway, above n 2.