JUDGES ON THE HIGH COURT?

Is there something different about Queensland? Is it more than a State but a condition? It remains, according to Bolton and Waterson, a 'long and profitless debate amongst historians whether Queensland is different'.' Certainly visitors have remarked, even before federation, that Queensland was different from the rest of . As the poisoned pen of Beatrice Webb noted in 1898, as the federation movement was in full flight, '[iln short, in Queensland one finds at every turn, a most peculiar reminiscence of the bad manners, sullen insolence, and graspingness of the "man in possession"'.2 Sidney Webb was less scathing than his acerbic wife, but interestingly declared that 'the politicians and the newspapers are in fact, the best product of ~ustralia'.~

Notwithstanding Bolton and Waterson's warning of a 'long and profitless debate' it is worth considering whether Queensland's legal history deserves closer attention in contrast to the rest of the country.4 The publication of Queensland Judges on the High Court provides a vehicle to consider this and many other questions.

It is well known that Queensland played a reluctant part in the deliberation of the Commonwealth Constitution. After a promising start at the 1891 Convention Queensland's formal involvement was not until the second referendum in 1899. The bulk of the drafting and politiclung of the 1897 and 1898 Convention had to take place in Queensland's absence. Even after its decision to join the federal movement, its delegate to London, James Dickson, was the first to jump ship under pressure from the imperious Joseph Chamberlain and colonial interests at home.

Notwithstanding, or perhaps because of, its internal politics and reluctance, Queensland shares with Western Australia a unique express constitutional footprint. For Queensland it is the regionalism that dominated federation politics that is captured in s 7 of the Constitution relating to the Senate. For Western

* Reader, Faculty of Law, Australian National University. 'Michael White and Aladin Rahemtula (eds), Queensland Judges on the High Court, Supreme Court of Queensland Library (2003). Geoffrey Bolton and Duncan Waterson, 'Queensland' in Helen Irving, The Centenary Companion to Australian Federation (1999) 93,94. A. G. Austin (ed), The Webbs' Australian Diary (1965) 40. Ibid 1 15 (emphasis in original). Paul Finn, Laus and Government in Colonial Australia (1987) ch 5. John La Nauze, The Making of the Australian Constitution (1974) 262. 528 Book Reviews

Australia it is the absence in the preamble and the long since spent provision dealing with its financial arrangement.6

The book, edited by Michael White and Aladin Rahemtula, has eight chapters with commentaries on the contribution of the five Queensland judges; Sir , Sir , Sir , Sir and Sir . Spared from this scrutiny in this volume is Justice who provides an overview.

What then is to be made of the disproportionate contribution that Queensland has made to the Australian High Court? For instance of the 11 Chief Justices of the High Court, Queensland has provided three. On this note it is worthy that the first chapter of the work is provided by a South Australian. The title of the collection could have been extended to be Queensland and South Australian Judges on the High Court without the need to print an extra page. Justice Selway in his contribution puts forward a more general treatise on constitutional interpretation. His overarching theme is the need to see constitutional interpretation against fundamental assumptions. The first of these assumptions was the imperial underpinnings of the Constitution. As is known the strength of this imperial connection was to give way to species of legal nationalism. This movement, according to Justice Selway, provides a second contradictory assumption that arises from Australian independence.

Against these two competing norms Justice Selway has attempted to create a matrix of the approaches to constitutional interpretation from within the current High Court. In essence, Justice Selway concludes that only Justices McHugh and Kirby have declared themselves as having an avowed interpretative position. He has styled the other members of the Court as the 'flexible five'.7 This group will use history, practicality, convenience and even purpose as a method of interpretation when the constitutional adjudication requires it. What is critical in Justice Selway's discussion is his appreciation that the justification for their approach is external to the Constitution it~elf.~This analysis is consistent with the work of Cass Sunstein who has advanced the view that:

any approach to interpretation requires a justification of some kind. That justification must be independent of any texts that are being interpreted. Any understanding of "meaning" of texts depends on judgments and commitments that are independent of the texts themsel~es.~

Justice Selway's chapter concludes that public confidence is best maintained by a return to legalism (though not strict legalism). This conclusion may appear to

Commonwealth Constitution s 95. Less obvious are ss 41 and 128 that reflect the state of the franchise in and Western Australia in 1900. White and Rahemtula (eds), above n t, 15. Ibid 19. Cass Sunstein, Legal Reasoning and Political Conzt (1 996) 170; cf George Winterton, 'Extra-Constitutional Notions in Australian Constitutional Law' (1986) 16 Federal Law Review 223. (2004) 23 The Law Journal 529 be paradoxical. Indeed, one of the justifications for departing from legalism is an adoption of a realist approach to interpretation.'' Such an approach is said to be open and transparent of the choices the judges make, leading to a greater public confidence in the craft.

Sir Harry Gibbs in his chapter assesses the judicial career of Sir Samuel Griffith. The chapter is comprehensive in its coverage dealing with the diverse areas of law that came before the High Court. Particular emphasis is placed on the relationship between the High Court and Privy Council. Gibbs notes that 'Griffith was resolute in resisting any encroachment on the jurisdiction or power of the Court, whether from above or below'." Overlooked in this assessment of Griffith was the fact that he, with Sir Samuel Way of the South Australian Supreme Court, was a proponent of the maintenance of the Privy Council in 1900.12 Indeed, Griffith's appointment to the High Court - based on the Privy Council issue and others - was denounced by Senator Keating in 1903. Griffith's actions had, according to Keating, 'disentitled him fiom ever occupying a seat on the ~ench'.'~

Gibbs also endorses the approach that Griffith had to Australian federalism. He argued that 'the mode of interpretation required by the Engineers' Case has resulted in Commonwealth powers being given an effect which virtually obliterates State power.'14 This assessment hints at what might be a theme in Queensland members of the High Court. The point is taken up in greater detail in Nicholas Aroney's chapter on 'The Griffith Doctrine'. For Aroney the contrast between Griffith and Sir is understood in terms of theories of federalism. For a nationalist, like Isaacs, the attraction was towards John Austin. This is in contrast to federalists such as Griffith who viewed the Commonwealth as being founded on limited competencies. Such a view was supported by James ~ryce.'~Ultimately, Aroney concludes that Griffith's approach to the Constitution was influenced by both theories. He concludes, after a penetrating analysis of the earlier case law, that few remnants of Griffith's approach are found in current jurisprudence; though he does suggest that the High Court may need to revisit some of Griffith's views in light of its recent decisions in the area of intergovernmental immunities.

Patrick Keane, in his commentary on Gibbs's paper on Griffith, continues the theme of the state of the immunities doctrine. Highlighting, with some relish, the inconsistency and vagaries of the Isaac approach in Engineers ' casel6 and Pirrie v ~c~arlane'~Keane provides a contemporary context as he reflects on the

lo Sir , 'The Role of the Courts at the Turn of the Century' (1993) 3 Journal of Judicial Administration 156, 164. 'I White and Rahemtula (eds), above n f,23. l2 La Nauze, above n 5,262-8. l3 Commonwealth, Parliamentary Debates, Senate, 23 September 1903,5372. l4 White and Rahemtula (eds), above n f,25. IS Ibid 227-8. l6 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920)28 CLR 129 ('Engineers ' Case 3. l7 (1925) 36 CLR 170. 530 Book Reviews

current state of the doctrine and its application to Australian federalism. He argues that from Corporation easel8 to Austin v ~ommonwealth~~ 'the Court has expended a great deal of effort and ink in the pursuit of the notions of "discrimination" and "particular burden or di~ability"'.~'The result has been 'fruitless'.

Gibbs is both an author and a subject of this work. The substantive paper is the work of Justice Williams with the commentary fkom David Jackson. Both were associates of Gibbs. As Justice Williams notes, it is a 'daunting task' for an associate to make an assessment of the c~ntribution.~'Justice Williams has undertaken a wide assessment of the work of Sir Harry highlighting not only the constitutional jurisprudence but also criminal, equity, contract and torts. In terms of constitutional interpretation Gibbs found himself on a Court in transition - a point hinted at by Justice Williams in his chapter.22As noted above Gibbs was a federalist at a time when the Commonwealth was in the ascendency. As such Gibbs was in dissent in some significant constitutional cases. He also found himself at the centre of the controversial period as Chief Justice; a position that Justice Williams suggests Gibbs had the 'misfortune' to hold.23

For his part David Jackson highlights a number of issues related to Sir Harry such as his decision to resign from the Supreme Court of Queensland to accept an appointment on the Federal Court of Bankruptcy. Jackson notes that the prospect of an interim appointment until the new Federal Court was established was the 'carrot' that lured Sir Harry from the Supreme Court. The other virtue of this move was that it provided an alternative career path given the 'step backward' that occurred with the appointment of Justice Mack as Chief Justice of ~ueensland.~~This frank assessment underscores the significance that judicial 'politics' plays in the development of a career - notwithstanding the merit of the candidate. Consistent with this analysis Jackson puts the constitutional litigation of the 1970s within its political context. The 'Olympian presence' of Whitlam and the 'addictive' exercise of Commonwealth power were to prove just as tempting for the Fraser Government.

The fourth chapter discusses the contribution of Sir Gerard Brennan to the High Court. Gerard Carney highlights the 'principles which guided Sir Gerard in the performance of his judicial re~~onsibilities'.~~In an analytical and comprehensive account of Brennan's High Court career, Carney develops the theme of the role of a modem common law judge. A critical aspect of the

l8 Melbourne Colporation v Commonwealth (1947) 74 CLR 3 1. l9 (2003) 195 ALR 321. 20 White and Rahemtula (eds), above n "f 38. *' Ibid 43. 22 hid 60. 23 1bid 71. 24 Ibid 78. 25 Ibid 88. (2004) 23 The University of Queensland Law Journal 53 1

Carney thesis is a paradox at the heart of the public perception of Brennan. As he states, Brennan was

one who endeavoured to explain in relatively conservative terms the judicial method, and who rarely saw the need to "repair" the general law to reflect enduring values, was publicly branded after Mabo (No 2) as an activist judge.26

There can be little doubt in the correctness of Carney's assessment of Breman, yet it was this case perhaps more than any other that has come to be seen as Breman's most significant contribution to Australia's common law. The resultant political furore has in many ways redefined the relationship between the Commonwealth government and the Court. Calls for the appointment of B 'capital C conservatives' to the Court and reluctance on the part of senior politicians to defend the Court against scurrilous, and sometime malicious, attacks, would appear to be the new norm.

In comrnentating on the Carney chapter Justice Atkinson draws together the 'two irreplaceable contributions to public life in Australia' that Brennan has made27- the first being the quality of his judicial and extra-judicial writing and the second being the qualities of the man in the law. The chapter is a balanced counterpoint to the chapter that it is comrnentating upon. It also explores the man and his personal attributes. Like Carney, Justice Atlunson reflects upon the Mabo (No 2) decision and highlights its logical, yet ultimately strikingly conservative, judicial methodology; a decision that gave discomfort to many 'powerful interests including those in government'.29

By far the most challenging chapter in this collection is that of Suri Ratnapala on Sir William Webb. This is not only because his subject has a relatively short period upon the Court (given his responsibilities as President of the International Military Tribunal) but also for the larger philosophical questions that are posed. Ratnapala attempts to investigate Webb by postulating that he may have been a Hobbesian jurist. While freely acknowledging that in constitutional law there is often little choice and that judges can be 'neither Lockean nor Hobbesian', he does however develop an analysis that alternates between the two strains of liberalism. In assessing Webbs' judgments in cases such as the Communist Party case3' and the Bank Nationalisation case3' Ratnapala concludes that when circumstances 'demanded theoretical reasoning he leaned to the Hobbesian rather than the Lockean paradigm'.32 It is refreshing to see Australian constitutionalism discussed within a theoretical template. However, as with the judgments of most judicial officers, any major premise underpinning Webb's

26 Ibid 95. 27 Ibid 127. (No 2) (1992) 175 CLR 1. 29 White and Rahemtula (eds), above n "f 131. 30 Australian Communist Parry v Commonu~ealth(1 95 1) 83 CLR 1. 3' Commonwealth v Bank of New South Wales (1949) 79 CLR 497. 32 White and Rahemtula (eds), above n 7, 150. 532 Book Reviews adjudications is unarticulated. Whether or not Webb was a Hobbesian is not expressly stated in his judgments.

Dayle Smith in his commentary turns to another facet of Webb's public life as President of the Toyko War Crimes trial. This is a fascinating aspect of Webb's life and Smith has unearthed significant correspondence in the Australian War Memorial archives that gives insights into the inner workings and tensions of this multinational tribunal. The chapter cannot be read without thoughts of contemporary issues relating to military tribunals, especially the issue of objectivity (which Webb himself had to face). The chapter also opens, though does not directly deal, with the question of members of the judiciary undertaking non-judicial functions. In light of contemporary standards of the incompatibility idoctrine as it relates to person designate the Smith chapter highlights the danger in the acceptance of such appointments.33

It is the orthodox position that James Douglas had the thankless task in presenting the achievements of Sir Charles Powers. Indeed, Justice Callinan says as much when he states that:

James Douglas drew the shorter straw in being required to write on his Justice's judicial contribution .. . [Tlhe truth is that there is not a great deal which can be said about Sir Charles's judicial career. I would almost go as far as to suggest that James Douglas has said all that can be.34

Even Chief Justice Gleeson in his foreword to this work could not help but allude to Sir 's famous aphorism that he had not grasped the meaning of the Latin phrase ultra vires until he had heard Powers deliver a judgment."

Douglas outlines the limitations that are associated with Powers. His legal reasoning was contradictory, his humour was limited, he did not drink or smoke and had the misfortune of being on leave when the High Court heard the Engineers' Even his request for a knighthood was by way of special pleadings to the Attorney-General noting his actions as President of the Commonwealth Arbitration Court in rehsing increases to the basic wage. As Douglas concludes this action made him unfit to hold office.37

Despite these and other faults Douglas suggests that it is a 'mistake' to dismiss his contribution 'out of hand'. He generally held, in light of current jurisprudence, the correct view of what were 'industrial disputes' within s

33 Wilson v Ministerfor Aboriginal and Torres Strait Islander AHairs (1 996) 189 CLR 1. See also Fiona Wheeler, 'Non-judicial functions' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the (2001) 5024. 34 White and Rahemtula (eds), above n 7, 204. 35 Ibid viii, 172. 36 (1920) 28 CLR 129. 37 White and Rahemtula (eds), above n 7,185. (2004) 23 The University of Queensland Law Journal 533

5l(xxxv) of the Constitution. In the area of s 92 of the Constitution, Douglas argues that his Honour came tantalisingly close in Duncan v ~ueensland~to the solution reached in Cole v Whi@eld9 to the seemly intractable problems associated with that section of the Constitution. However, as Douglas notes, subsequent decisions 'do not inspire any confidence that he would ever have arrived at the formula eventually adopted in Cole v hitf field.'^^ He was not alone in that failing.

For Kay Saunders it is not Powers' judicial, but his political, career that is the primary objective of her commentary. Her conclusion is that Powers' was a 'significant reformer dedicated to a series of progressive measures such as women's suffrage, electoral reform, conciliation and arbitration and worker's rights'.41AS with many things about Powers his political career was complex as he lurched between conservative and radical liberal camps and back again. Saunders skilfully charts these movements providing another dimension to what is generally seen as a lacklustre judicial career.

Justice Callinan in his chapter provides an overview of the contribution of the Queenslanders. He does so by assessing each of the justices by reflecting - through the Commonwealth Law Reports - upon a period when each was at the peak of their career. His chapter is generous in its linking of aspects of these diverse periods to current jurisprudential questions. In terms of Justice Selway's chapter he provides some mild correction in emphasis to be placed upon the approach of the Court to constitutional interpretation in 1901 and today." In summing up Justice Callinan does however reflect upon the changes in the way that 'Judges think, decide, and do their work differently from the way their predecessors did 100 years ago'.43 In short the workload is greater, the cases more complex and the scrutiny is more intense and sharper.

The High Court of Australia is a national as well as a federal court. Its original jurisdiction contemplates it determining national constitutional questions. Its appellant jurisdiction is from the Supreme Court of the states where it determines, amongst other things, what is the common law of Australia. While a statutory obligation, the Commonwealth must 'consult' with the States before a vacancy on the Court is to be filled.44It is in this context, where federalism is such a significant aspect to Australian governance, that the Queensland question could be asked. What Queensland Judges had brought to the High Court may be an open question. Unfortunately it is not a theme of the papers, and most likely was not within the individual author's brief.

38 (1916) 22 CLR 556. 39 (1988) 165 CLR 360. 40 White and Rahemtula (eds), above n f, 182. 41 Ibid 190. 42 hid 213. 43 Ibid 216. 44 High Court of Australia Act 1979 (Cth), s 6. 534 Book Reviews

Queensland Judges on the High Court is a work that adds to our stock of knowledge of the High Court. It is a production of an initiative of the Supreme Court of Queensland Library and its history program. The Library, the two editors and the contributors are to be warmly congratulated for undertaking this significant project. The work will hopehlly inspire others to undertake similar projects.