QUEENSLAND 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 Australia. 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 Samuel Griffith, Sir Harry Gibbs, Sir Gerard Brennan, Sir William Webb and Sir Charles Powers. Spared from this scrutiny in this volume is Justice Ian Callinan 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 South Australia 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 University of Queensland 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 Isaac Isaacs 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 Anthony Mason, '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 Melbourne 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 Lionel Murphy 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.