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Samuel Griffith Society Proceedings Vol 2 Proceedings of the Second Conference of The Samuel Griffith Society Upholding the Australian Constitution Volume Two The Windsor Hotel, Melbourne; 30 July - 1 August 1993 Copyright 1993 by The Samuel Griffith Society. All rights reserved. Table of Contents Foreword (P4) John Stone Foreword Dinner Address (P5) The Hon. Jeff Kennett, MLA; Premier of Victoria The Crown and the States Introductory Remarks (P14) John Stone Introductory Chapter One (P15) Dr Frank Knopfelmacher The Crown in a Culturally Diverse Australia Chapter Two (P18) John Hirst The Republic and our British Heritage Chapter Three (P23) Jack Waterford Australia's Aborigines and Australian Civilization: Cultural Relativism in the 21st Century Chapter Four (P34) The Hon. Bill Hassell Mabo and Federalism: The Prospect of an Indigenous People's Treaty Chapter Five (P47) The Hon. Peter Connolly, CBE, QC Should Courts Determine Social Policy? Chapter Six (P58) S E K Hulme, AM, QC The High Court in Mabo Chapter Seven (P79) Professor Wolfgang Kasper Making Federalism Flourish Chapter Eight (P84) The Rt. Hon. Sir Harry Gibbs, GCMG, AC, KBE The Threat to Federalism Chapter Nine (P88) Dr Colin Howard Australia's Diminishing Sovereignty Chapter Ten (P94) The Hon. Peter Durack, QC What is to be Done? Chapter Eleven (P99) John Paul The 1944 Referendum Appendix I (P113) Contributors Appendix II (P116) The Society's Statement of Purposes Published 1993 by The Samuel Griffith Society P O Box 178, East Melbourne Victoria 3002 Printed by: McPherson's Printing Pty Ltd 5 Dunlop Rd, Mulgrave, Vic 3170 National Library Cataloguing-in-Publication data: Proceedings of The Samuel Griffith Society Upholding the Australian Constitution Volume Two ISBN 0 646 15439 7 Foreword John Stone Copyright 1993 by The Samuel Griffith Society. All rights reserved. Since the formation of The Samuel Griffith Society early last year, and its Inaugural Conference in July 1992, events, as is their wont, have moved on. Three areas of the Constitution in particular have taken on enormously increased importance. I refer to the republican debate; the Aboriginal question (Mabo and all that); and, particularly though by no means wholly associated with the latter, the increasingly crucial question of the High Court's perversion of the external affairs power, section 51 (xxix) of the Constitution. Even a year ago, each of these issues was already, as they say, alive and well and living in Canberra. During the intervening twelve months, however, the debate on each of them has taken on a greatly enhanced urgency. All three issues raise in the most pointed fashion the matter which lies at the heart of the formation of The Samuel Griffith Society – namely, the growing need not only to contain the further expansion of power in Canberra, but also to restore a balance between States and Commonwealth much more akin to that which the Australian people established in the 1890s. Whether we are speaking of the increased powers for the Prime Minister which are inherent in all Mr Keating's calls for a Republic; or the massive downgrading in the role of the States, and the balance of our whole Federal system, which is inherent in the outcome of the Mabo judgment and its aftermath to date; or the remarkable recent behaviour of at least six of the members of the current High Court, which for the first time in our nation's history has brought that previously esteemed institution into serious public question, not to say disrepute – all these issues come back, in the end, to one simple question: do we, or do we not, wish to see more power being exercised in Canberra? I have no doubt as to the answer of the Australian people to that question. Indeed, one can only wonder at the quality of the leadership in our non-Labor federal political parties (Labor is, after all, avowedly centralist) that the nature of that answer appears either to have escaped their notice, or worse still, that they may have chosen to ignore it, having in mind their own possible role in some future Canberra–centred scheme of things. However that may be, the second annual Conference of The Samuel Griffith Society, held at the Windsor Hotel in Melbourne on 30 July – 1 August, 1993 has sought to address, inter alia, all three of these issues. That Conference, whose Proceedings are now recorded in what follows, comprised two major addresses (one by the Premier of Victoria, the Hon. Jeff Kennett, and the other by the Society's President, the Rt. Hon. Sir Harry Gibbs) and ten papers delivered on a series of themes, particularly those three above-mentioned. Those who were privileged to attend throughout were, if anything, even more enthusiastic about the quality of these offerings than their predecessors had been twelve months earlier. Following that Inaugural Conference the Society caused its Proceedings to be printed in a handsome volume entitled "Upholding the Australian Constitution". In line with that precedent, the Proceedings of our second Conference are presented in what will now become Volume II of the series by that name. In my Foreword to last year's volume, I expressed the view that the papers contained in it were "of such a generally high order, and without exception generated such enthusiasm among those who heard them...., that they will come to be seen as having had a seminal effect upon the debate which now lies before us." On the basis of those two tests, I hazard the opinion that the present volume may, if anything, prove to be even more significant in that respect. It is to that objective, at any rate, that this Volume II is also dedicated. The Crown and the States The Hon. Jeff Kennett, MLA Premier of Victoria Copyright 1993 by The Samuel Griffith Society. All rights reserved. We live in exciting – if not frustrating – times. The excitement is in the potential we have as a nation to position ourselves for the twenty first Century and become a major economic player in the Asia Pacific region. The frustration comes from our seemingly chronic incapacity as a nation to take a longer term strategic view about our future. A few weeks ago I attended a Premiers' Conference in Canberra. Most of the morning of the one day meeting was devoted to "set piece" presentations by the Prime Minister, Premiers and Chief Ministers. I made the point to the gathering about the absurdity of sitting around a table making statements which appeared to be solely for the benefit of the assembled media scribes and television personalities. I made the suggestion then – and repeat it now – that Australia would be better served if the Prime Minister, Premiers and Chief Ministers locked themselves away for a few days without all the officials and media hounds and got down to the business of finding workable solutions to our many national problems. Of course my proposal received the response we've all come to expect from the seasoned and cynical Canberra political commentators. Yet when one looks back to the first National Australasian Convention in 1891, one of the most notable events was when some of the key participants representing all the colonies of Australia, including Samuel Griffith, locked themselves away for several days on the Hawkesbury River on the Queensland Government steamer S.S. Lucinda, to negotiate the course which led to federation and, ultimately, the development of a nation of which we can all be proud. The constitutional arrangements eventually agreed upon have served Australia well. They mirror a nation whose spirit is fiercely independent and whose people hold firmly to the ideal of freedom. They have assisted in the determination of Australia's destiny in the intervening years. One of the architects of federation, Alfred Deakin, spoke of the Constitution as a lofty achievement. "I venture to submit," he said, "that among all the federal constitutions in the world you will look in vain for one as broad in its popular base, as liberal in its working principles, as generous in its aim, as this measure." Of course the relationship between the Commonwealth and the States envisaged by the founding fathers – particularly the fiscal relationship – has evolved and altered over the past ninety years. The outcomes have been mixed. As we approach the twenty first Century we need to address and resolve a number of inefficiencies and difficulties that have developed within our federal system. With goodwill and commonsense there is no reason why we cannot make changes that benefit all Australians while at the same time preserving our federal structure. For example, duplication by the Commonwealth and the States in the delivery of government services and the question of fiscal equalisation are just two matters requiring resolution. However these are issues better addressed another time and in another forum. On this occasion my brief is more specific. I have been asked to canvass the issue of the Crown and the States. In doing so it may come as no surprise that my remarks will relate in large part to the current debate on republicanism. It is an issue that has captured a considerable amount of attention over recent months. At the outset let me say that I welcome reasoned debate about Australia's constitutional future. I do wonder, however, why such an issue deserves the inordinate amount of attention it has received when our nation faces a level of unemployment above one million, a chronic trade deficit, a projected rate of economic growth that is nothing short of abysmal, and when national economic reform is moving with glacial slowness. Most of the noise on the subject of a republican Australia has been generated by those committed totally to the cause, not by those who are prepared to listen and debate.
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