Academic journal article University of Queensland Law Journal

Bryan Pape and His Legacy to the Law

Academic journal article University of Queensland Law Journal

Bryan Pape and His Legacy to the Law

Article excerpt

I Introduction

Australia has had many notable scholars in the field of constitutional law, but few have had anything like the impact achieved by University of New England academic and barrister Bryan Pape. Despite a number of significant presentations and publications, (1) his greatest success lay outside academia. It came as a result of his appearance as a litigant in person (2) in the High Court matter that bears his name, Pape v Commissioner of Taxation. (3)

That decision is one of the most important handed down by the High Court in the field of constitutional law. It sparked a fundamental reassessment of two of the most significant, and thereto largely unexplored, aspects of the Australian Constitution, the scope of the Commonwealth's power to spend money and the federal executive power. Pape v Commissioner of Taxation was especially important in regard to the first of these, while subsequent decisions have built upon its findings in regard to the latter. Not surprisingly, these decisions have provoked a flurry of scholarship from Pape's former academic colleagues. (4)

This article explores the impact that Pape has had upon this area of the law, doing so by drawing out the personal and legal interconnections. Public law scholarship tends to focus only on the more formal aspects of the law, whereas this article seeks to explain how personal factors played a significant role in legal development. It begins with a biographical sketch of Pape's professional life, before exploring his views on federalism, his advocacy in the High Court in Pape v Commissioner of Taxation and the subsequent impact of that case. In doing so, the article provides a study of what is an unusual, perhaps unique, example of the influence wrought by one person upon the interpretation of the Australian Constitution.

II Bryan Pape

Pape was born at Castlemaine in the goldfields region of Victoria on 17 Jan 1945, and died aged 69 on 27 April 2014. He lived a life full of professional achievement. After completing a Bachelor of Commerce in Accounting at the University of New South Wales in 1969, he worked as an accountant and then joined the New South Wales bar in 1977. Like some other notable members of the legal profession, including former High Court Justice Michael McHugh (5) and current Justice Susan Kiefel, Pape never completed a law degree. Instead, he came to practice after being awarded a Diploma of Law via the program run by what is now called the NSW Legal Profession Admission Board. His work at the bar across the years focused upon taxation law, international commercial arbitration and mediation, commercial law and constitutional law. (6) His professional standing was reflected in the fact that he was appointed in 1981 at age 36 as a member of the Taxation Board of Review, a body whose functions have now been subsumed by the Administrative Appeals Tribunal. Later in his career, in 1992, he was appointed to the Australian Accounting Standards Board.

Pape was not one to bow easily to authority. Indeed, he was a fearless, independent thinker with a well-known tendency to be a troublemaker. One of his colleagues from the bar, Peter Graham QC, said that Pape 'relished the chance to rock the boat'. (7) This was evident, for example, in how he sought change to the bar rules to permit barristers to be briefed directly by professional clients, such as accountants. Pape played a leading role in this debate, and in 1991 was even threatened with disciplinary action by NSW Bar Association President, Barry O'Keefe. (8) Nonetheless, in 1992, under different leadership, the Association appointed him to a committee charged with investigating direct access to barristers. After what has been described as a 'tortured path ... littered with drama and betrayal', Pape and the other supporters of change won out, and direct professional access was adopted. (9)

Pape left the bar in 2000 to become a legal academic in the School of Law at the University of New England in Armidale, NSW. …

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