Micheal McHugh's rise from the son of a steel worker to High Court Judge

The son of a steelworker who finished his education at night school before going on to be a judge of the High Court of Australia.

Throw in a strained relationship with his father after dropping out of high school at 15 and you’ve got the law’s version of Billy Elliot.

Michael McHugh was born in Newcastle in 1935 and was raised here until the family moved to Collinsville, west of Proserpine, Queensland, when McHugh was about 10.

Collinsville had no electricity or running water at the time, but it did have two SP bookies who worked under the supervision of the local police sergeant, McHugh recalled.

It was during this period that McHugh fell in love with horse racing.

A local horse, Hedui, made the journey down to Sydney to test itself in metropolitan company.

The entire town gathered around its radios to listen to Hedui’s first city run.

McHugh had two shillings on it. Hedui ran fifth.

Hedui did, however, return to its home state to win the Stradbroke in 1947, much to the joy of Collinsville.

By then the young McHugh was a competent horserider himself.

He and a mate, Stanley Baker, went for a ride one day when Baker lit a match and threw it into some grass. The grass went up and soon McHugh and Baker were surrounded.

McHugh was riding Rowdy that day. ‘‘I just let [Rowdy] steer me through and we came out of it unscathed,’’ McHugh recalled.

It was the night before the Melbourne Cup and Collinsville was surrounded by a ring of fire prompting the locals to get behind an 80-1 shot in the great race. Rimfire won the 1948 cup with a 15-year-old hoop on board. Collinsville partied hard that night.

‘‘It was all due to Stanley Baker,’’ laughed McHugh.

The McHughs moved back to Newcastle not long after that great victory and found themselves a home at Birmingham Gardens.

There weren’t a lot of kids around McHugh’s age in the neighbourhood at the time so he befriended some teens from the nearby White Gates housing commission estate. These kids had no intention of finishing school or going to university. They wanted to work, make a living, buy cars, buy booze and get up to all sorts of fun on six pounds a week.

‘‘They had money and I didn’t and I wanted to be like them,’’ said McHugh.

His decision to quit school disappointed his father deeply.

McHugh senior started work in a mine when he, as the eldest of nine, was thrust into the role of chief breadwinner at the age of 13 after his father’s premature death.

That led to a lifetime of manual labour that McHugh senior had hoped to spare his children from through education.

‘‘He was very, very upset with my decision,’’ McHugh reflected. ‘‘He had great plans for me. He used to say to me, ‘You’ll wind up on the pick and shovel’.’’

The relationship was strained for the better part of seven years as McHugh dropped in and out of jobs from crane chaser to telegram boy to clerk.

‘‘They all bored me really,’’ he said.

His decision to enrol at Hamilton Evening College helped thaw relations and after obtaining his leaving certificate he enrolled in the Barristers Admission Board course in 1957.

McHugh ploughed through the program and went to the Bar in Sydney in 1961 where he benefited from the rule that Queen’s Counsel had to have a junior and that junior was to be paid two-thirds of the senior’s fee.

It saw him appear in the High Court in his first years.

Sadly his wife Jeannette fell terribly ill during the pregnancy of their second child and they moved back to Newcastle where there was greater family support.

The Newcastle Bar had only seven members at the time, of which only five or six were truly active.

McHugh was in his second year at the Bar when he was briefed to defend the brother of a high-ranking public servant in a criminal matter.

The public servant was uneasy about having such an inexperienced barrister defending his sibling so JW Smythe QC was called up from Sydney at great expense.

‘‘He was the best barrister that I ever saw,’’ McHugh recalled.

The McHughs took Smythe out for dinner one night during the trial when he turned to Mrs McHugh as they walked along Hunter Street.

‘‘He said, ‘Listen, this fella’s wasting his time up here, he should be in Sydney,’ and she later said to me ‘Well, you heard what he said’.’’

Smythe QC and McHugh secured the acquittal.

The accused was so grateful that he later helped McHugh move, but for several months McHugh travelled to Sydney on Sunday nights or Monday mornings depending on his schedule and returned as soon as his commitments for the week were met.

The young McHugh family moved to Sydney in early 1965.

Work didn’t immediately fall into McHugh’s lap. He didn’t realise it at the time, but he was an outsider.

He wasn’t from Sydney, he wasn’t privately schooled and he didn’t graduate from the state’s only law school at Sydney University.

Consequently, McHugh was rarely briefed by the big firms [even after taking silk eight years later] who tended to stick to their lists of preferred counsel who were often members of ‘‘the club’’.

‘‘I had a retentive memory and I could master a brief very quickly,’’ he recalled. ‘‘A lot of my clients were quite entrepreneurial. Many of them were outsiders themselves and much of the work they brought me was quite interesting and challenging.’’

His practise ranged from industrial matters to crime to tax to defamation.

Then in 1973 McHugh took silk.

Over the next 10 years he was either the finest barrister in Australia or very close to it.

As one contemporary commented in 1988: ‘‘He was the most brilliant advocate that we’ve seen for decades at the NSW Bar ... He could talk the judges or the jury into anything. If he’d asked them to lend him $100,000 they probably would’ve done it.’’

There was one case, though, that McHugh didn’t win. In 1982 McHugh defended Lindy Chamberlain in the Northern Territory Supreme Court for the murder of her daughter Azaria.

After the jury convicted her, McHugh took the appeal all the way to the High Court without success.

Chamberlain would later be pardoned after fresh evidence came to light.

In 1983, Bob Hawke led Labor to victory and among the successful candidates was McHugh’s wife Jeannette in the eastern suburbs seat of Phillip.

In early 1984 the Sydney Morning Herald ran a front page story saying that either McHugh or Michael Kirby would be the next President of the NSW Court of Appeal.

Kirby won the appointment, but it was only a few months later that McHugh received a call from the Premier Neville Wran.

‘‘I’d known Neville for years,’’ said McHugh. ‘‘He asked me if I wanted to become a judge on the Court of Appeal and I said, ‘Ahh, all right Neville’.

McHugh was advised to ‘‘just sit there’’ for a few years on the Court of Appeal because Harry Gibbs was coming up for retirement as Chief Justice of the High Court and McHugh would be a frontrunner for the vacant spot on the seven-person bench.The death of Lionel Murphy in late 1986 and the retirement of Gibbs in early 1987 created two vacancies on the High Court.

McHugh’s name was put forward, but Hawke went with Mary Gaudron and John Toohey.

McHugh had had enough.

He was ready to chuck it in when Sir Anthony Mason, the new Chief Justice, took him out to lunch.

‘‘He said to me [Justice] Ron Wilson is going to retire. You’ve got to be a good chance of being appointed then,’’ McHugh recalled.

McHugh joined a court that many commentators believed was one of the finest in Australia’s history.

Most High Court decisions shape Australian law in some way, but under Mason the court appeared free and unconstrained by precedent.

In June 1992, the court handed down its decision in Mabo No 2, recognising that native title was, and always had been, part of Australian law.

‘‘I thought there would be a real public debate about it,’’ said McHugh. ‘‘But there was hardly any comment on it at all at the time.’’

It wasn’t until later that year that the managing director of Rio Tinto spoke out against the judgment and its perceived threat to other land rights that Mabo finally hit the headlines.

‘‘It wasn’t really until early 1993 that it took hold of the public’s imagination,’’ McHugh recalled.

There were, of course, other decisions that were just as controversial.

McHugh was part of a 4:3 majority that upheld the validity of a section of the Migration Act that allowed the government to detain asylum seekers ‘‘until’’ their refugee claims were settled.

The asylum seeker in question had been detained for months with no certainty as to how long he would remain there.

Gleeson, Kirby and Gummow said the section offended a fundamental right to freedom that was inferred in the constitution.

McHugh, an advocate for an Australian Bill of Rights, found that no such right existed.

‘‘Kirby and I had a bit of a set-to about it,’’recalled McHugh with a chuckle. ‘‘He said to me, ‘You’ll regret this’, but as I said, what is it about the word ‘until’ that you don’t understand?

‘‘As much as I disagreed with what happened to [the asylum seeker] and I racked my brain to see if there was a way around it, but I just couldn’t see my way out of the language of the statute. I’ve been much criticised for it as have others in the majority, but if we had a Bill of Rights the result may have been very different.’’

McHugh retired upon reaching 70, the compulsory age of retirement for High Court judges.

His main goal upon retirement was to get his PhD in mathematics.

Instead, he was quickly roped in to taking over a number of mediation and arbitration matters including the famous figs saga in his home town in 2011.

‘‘I had that settled you know,’’ he said. ‘‘But it went back to the council to be signed off on and the whole thing started up again.’’

He continues to work most days out of chambers in Macquarie Street, Sydney.

Jeannette retired before the 1996 election.

Upon reflection, McHugh still treasures his years at the Bar over his time on the bench.

‘‘The work was very satisfying [on the High Court], but I loved the Bar. I loved everything about it.’’