Obituary: George Barton

George Barton recently died in Wellington. He was a long time member and supporter of the Council over many years.

The following obituary is as it appeared in the Dominion Post on 28 May 2011 and is used with permission from Peter Kitchin.

George Paterson  Barton,  barrister:  B Auckland,  May 13, 1925;  m 1948 Ailsa Begg 3s; d Wellington,  May 17, 2011, aged 86.

GEORGE BARTON, of  Karori,  was a rare light in the practice of  law.

In a 65-year career he became noted for taking knotty cases others would not. He took on weighty constitutional work all the while counselling the deprived and the unwary and finding remedies when none were expected.

He was as near to unique as it’s possible to be among barristers.    It’s said there will not be another Barton because in his increasingly specialist profession there is little stomach for what he called generalist work.

Wearing an academic hat, he left an important  legacy  –  he inspired  two generations of  students and new practitioners to embrace the practice of  law to ensure justice is properly dispensed.

Within the law he is acknowledged to be a head above his peers.   He brought to it an unflagging intellect and a knowledge bank so pervasive he could cause governments to steam with indignation and litigants to rejoice.   Some of  his less-worldly  peers  sniffed that at times he stepped beyond his brief and brought to  the profession the tincture of  reproof.  

He was unfazed.   Tall,  trim, courteous and well-spoken, Barton never quailed at the prospect of offending people in high places.  His preparation was formidable, his arguments second-to-none and his courtesy limitless.   

Prime Minister Robert Muldoon loathed him.

That arose because just three days after recovering the treasury benches from Labour’s Kirk-Rowling government in 1975,  Muldoon attempted to change the law with a press release announcing that statutory obligations to pay into the New Zealand Superannuation Fund would be suspended. The fund, established in 1974,  was a compulsory contributory system designed to bankroll super. The prime minister’s idea was to effect the repeal of  the Superannuation Act retrospectively when parliament had a chance to sit.

Barton was approached by a Wellington man who viewed the prime minister’s actions as illegal.   He took on the case and invoked the Bill of  Rights.  Muldoon, he argued, had violated Article 1 which provides that “the pretended power of dispensing laws or the execution of law by regal authority … is illegal.”

The pragmatist Muldoon had taken the divine right of kings route, and Chief Justice Wild agreed with Barton.

The case, heard in 1976,  struck a blow for common law and for the pre-eminence of  Parliament.   Wild observed that the prime minister-elect had not been allowed to rule the country by press release no matter how convenient he found that form of  government.

His list of  cases runs into the hundreds.  He was counsel at the Royal Commission of  Inquiry into the Arthur Allan Thomas case, and he made 11 appearances before the Privy Council.  His first,  in 1965 was Attorney General v Lower Hutt City Corporation, a case concerning fluoridation of  the city’s water supply.   He is said to have been the only New Zealander with his own locker in the Privy Council  robing room.

In 1971 he was counsel in Parsons v Burk, a case whichattempted to prevent the 1971 All Blacks' tour of South Africa.

The basis of the enabling writ cited by Barton presented something of  a hurdle.  His nephew Frazer Barton says the relevant text book did not exist in New Zealand.  It took Barton 35 years to obtain a copy  –  a first edition printed in the 1600s from a German bookseller.

In 2003 he described New Zealand's 1982 Citizenship (Western Samoa) Act, as  racist, and with good reason.  He was the lead petitioner  ahead of  100,000  others to have the law overturned.

The Act had the effect of stripping New Zealand citizenship from thousands of  Samoans,  and  overrode a Privy Council ruling that gave New Zealand citizenship to Samoans born between 1924 and 1948.

Barton said he was hard-pressed to think of  any other country which had stripped people of their citizenship as the Act had, and suggested the last to have been Nazi Germany which  removed  citizenship from Jews.

He  is revered by Samoans for his work on their behalf.  They honoured him with a chiefly title.

He had disappointments as barristers do, but one was personal.    In 2004  he sued Air New Zealand after being turned away from a Koru lounge where he wanted to farewell his granddaughter in October,  2002.  He lost.

One had to take it, he said, when the court found for  the other side.   Being on a losing team, he said, did not alter his belief in the quest for justice.  That was  as sacrosanct as his Christian beliefs.  He said the law was a job with special duties to ensure people of any class or  race could  get  fair treatment.  Any action that was not fairly heard, represented or  adjudicated was not justice.

He was, as Presbyterians would say,  a son of  the manse.  His father,  Frazer Barton, was minister of  the Ponsonby church, when he was born.  Young George was the fourth of  Frazer and Jeanie Barton’s nine youngsters.

Barton was 10 when his father was called to Gore, in Southland,    He attended Gore High School for four years with a final year at Otago Boys High School in Dunedin. 

At the time,  Barton was intending to follow in his father’s footsteps,    but left Knox College and Otago University after three years and enrolled at Victoria University College in Wellington, where he finished his arts degree and took a law degree as well.

He was a junior in the Wellington practice of  J J and Denis McGrath in 1948 when he learned he had been awarded a studentship to Cambridge University where he earned a PhD with a dissertation “Jurisdiction Over Visiting Forces”, which had at the time especial relevance to the North Atlantic Treaty Organisation.

He was on the staff of the UN’s human rights division in New York from 1950 until 1952, when he returned to Victoria as a lecturer. 

He was later a partner in the firm Spratt Morison Taylor  and retained a right to take on private work when he returned to Victoria  as  reader in law, becoming professor of jurisprudence and constitutional law in 1968 and later the faculty dean.  He pioneered the teaching of  the history of  New Zealand law.

He returned to private practice in 1977.  He was admitted to the bar in Sarawak, Sabah, Cook Islands, Niue and Samoa.

He was world president of  the United Bible Societies, and an active churchgoer all his life.  

Dr Barton gained a doctorate from Cambridge University and had been admitted to the Bar in New Zealand, Sarawak, Sabah, Cook Islands, Niue and Samoa.

The Attorney-General described him last week as “one of the finest legal practitioners New Zealand has produced.”

He said he was never interested in a job on the bench, and  is known to have refused civil honours.   He  was obliged by his peers and his wife to accept an invitation honouring his 60 years in the law.  A  dinner in his honour was hosted  by the Governor-General Sir Anand Satyanand in 2008.  Barton was chuffed. 

He was made an honorary doctor of  laws at Victoria University of  Wellington in 1987.  He was made a Queen’s Counsel late in his career.  That came about at the instigation of  David Lange, the attorney-general at the time.   It’s said that  combined intellectual  weight of  city silks  grew immeasurably when Barton QC was appointed in 1989.

George Barton was a long-time member of  the Civil Liberties Union.  With  close colleagues he lunched weekly for more than 40 years.  More recently,  he  held court at  Parsons bookshop, where guests included younger  members of  the fraternity fresh from their morning’s work at the nearby district court.

Barton died of  a stroke soon after returning from a South Island safari to visit family members in the South Island.  He is survived by his wife and two of their three sons.  –  By Peter Kitchin.

Sources:  Frazer Barton,  Denzil Brown,  Sir Geoffrey Palmer, Sir Ivor Richardson,  and others; Dominion Post library