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Emeritus Professor Geoffrey It ir e Bolton's biography of is to be published in hind the scenes October 2000. era tor

It is well known that in 1893 Sir Samuel Griffith, Premier of , appointed himself to the position of Chiefjustice at a substantially increased salary.

ive years later on the death of Sir Privy Councillor in 1901, Griffith Barton, O'Connor and Downer: good Arthur Palmer, he was made behaved as if this honour further enough lawyers in their way, but not up Lieutenant-Governor as well. reinforced his privilege of communication to his own quality. Lacking a sense of This marked a departure from privately and directly with the British proportion about his own importance, precedent, as previously the position of authorities. Using this line of access he Griffith probably never reflected that his Lieutenant-Governor had gone to the continued at intervals for the rest of his impotence was entirely self-inflicted. He President of the Legislative Council. life to favour Governors-General and the might have foregone the financial security Following that practice, the job should Home government with advice, often of judicial office in order to remain an active participant have passed to the outgoing unsolicited and at times in direct in the fight for Federation: Barton, whose Premier, Sir Hugh Nelson, financial circumstances were who with marginally greater considerably worse, made that restraint than Griffith had choice and was respected for just appointed himself Lacking a sense ofproportion it. It was not enough for president of the Legislative Griffith that during the 1897- Council. Perhaps there was about his own importance, 98 Convention he was often Colonial Office influence at Griffith probably never reflected consulted informally and his work here, since Downing status as an architect of the Street was opposed to giving that his impotence Constitution and a pre- vice-regal appointments to eminent constitutional individuals who came was entirely self-inflicted. authority was given straight from local politics, recognition.1 He came to see and Griffith may have been himself as Australia's master- seen as insulated from craftsman of constitution­ partisanship by his period on the contradiction to the federal government making, entitled to intervene if it was Supreme Court Bench. of the day. necessary to improve and correct the In the event, Griffith's appointment It may be said on Griffith's behalf that work of less skilful practitioners. It was not without unforeseen consequences as the main author and steersman of the probably surprised him when others for the Federation movement and for the 1891 draft Constitution he would found such conduct meddlesome. early years of the Australian naturally feel a parental concern in its Griffith's sense of frustration at his Commonwealth. It turned out that future development. Prevented by his marginalisation in the process of Griffith held extreme, if not anachronistic judicial position from intervention in the constitution-making was doubtless fed by views about the powers of the holder of political process, he must have found it Queensland's failure to appoint a vice-regal office, at least in terms of provoking during the 1897-98 delegation to the 1897-98 Convention.2 capacity to communicate directly to the Convention and beyond, as the There would presumably have been Colonial Office without consulting the Constitution which he had come to nothing to prevent the Chief Justice from elected government of the day. regard with proprietorial pride was serving as a member of such a delegation, Subsequently, after his appointment as a modified under the stewardship of especially if that delegation had been

For example Barton to Griffith, 4 Apri\1897, MSQ 189 ff287-294, Mitchell Library ; R. B. Joyce, SamuelW'ltlker Griffith, University of Queensland Press, St Lucia, 1984, pp. 204-6. - 2 G. C. Bolton and D. B. Waterson, 'Queensland' in The Centmmy Companion to Australian Federation, ed H. Irving, Cambridge University Press, Cambridge, 1999, pp. 93-127. nominated by Parliament as Sir Hugh Melbourne session on a motion by Sir over constitutional cases and B Nelson wished, instead of submitting to Joseph Abbott of New South . supported h1m:. ''fA1 ustra 1 ia is to beanon h . C .. , te the hurly-burly of popular election, but I This followed sustained lobbying by rna ker o f Its onstJtutJon he said ,.. • • > It IS have seen no evidence to suggest whether chambers of commerce and companies fatrly competent to be the lllterpreter Griffith cherished the ambition of concerned to protect the British investor Its· own C onstJtutJon.· · ' The Convent' of . ton participating. Certainly his presence against the unpredictable verdicts of agreed by a margm of 21 votes to 17 .s would have made a difference to the colonial judges, and was passed by the When early in 1900 the Australian balance of forces in the Convention, narrow margin of 20-19. The majority, delegation went to London to monitor especially in the absence of Inglis Clark surprisingly, included Deakin and the passage of the Commonwealth Bill As it was, as John Williams has reminded O'Connor but not Barton, whose through the British parliament they us, his comments on the work of the personal experiences fed his scepticism expected Section 7 4 to be a major judiciary committee chaired by Josiah about the Privy Council's wisdom. sticking-point with Joseph Chamberlain Symon were sharpened by Symon then moved that the Privy and the Colonial Office, but they disappointment at Queensland's Council should not have jurisdiction probably did not anticipate the extent of continued failure to come in.3 'Abortion' without Queensland Without Queensland, Griffith lamented to Richard Chaffey Baker, Federation must be 'abortion'4, but although this diagnosis has recently gained the support of Geoffrey Blainey the Canadian precedent suggested that, if the heartland of Australia agreed on Federation, Queensland and would have straggled in soon afterwards, just like British Columbia and Prince Edward Island in Canada. When belatedly pro-Federation activity stirred in Queensland, Griffith played a useful and honourable part. He wrote pamphlets in support of the cause and lent his authority as a figurehead to the Queensland Federation League, and in the 1899 Referendum campaign he played host to visiting speakers from and Victoria. No Chief Justice could have done more. But once Queensland voted 'Yes' to entering the federal fold Griffith addressed himself to 'improving' the Federal Constitution endorsed by the voters of five colonies and due for submission to the British Parliament early in 1900. is main concern was Section 7 4 of the Constitution. In the 1891 draft this provided that the High Court might become the final tribunal of appeal for all cases not involving constitutional questions. These might be referred to the Judicial Committee of the Privy Council. The 1898 version of the Constitution went in a completely opposite direction, Chiefjustice Samuel Griffith. restoring the right of appeal late in the Uolm Oxley Libra!]\ ).

3 J. Williams, 'A Toast to Absent Friends', The New Federalist, no. 1, pp. 27-28. 4 Griffith toR. C. Baker, 7 August 1897, Baker MSS, Mordock Library PRG38, . 5 Official Record ofthe Debates ofthe Awtralmian Federal Convention, Sydney, 1897, Government Printer, pp. 2295 er seq. ,.

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the white-anting which would come from Influence in London right of appeal from State Supreme Australian sources. Many Australian Griffith influenced more substantial courts to the Privy Council. Griffith businessmen, and more surprisingly the figures than Lamington. When Robert thought that Barton had made a mess of Brisbane \Yforker believed that British Philp broke ranks with the other Premiers it. By allowing governments to decide justice was more to be trusted than the and expressed readiness to jettison Clause whether appeals might go to the Privy Australian version. 6 They were reinforced 74 altogether, and when Dickson refused Council, Clause 74 brought the by the bulk of the legal profession, partly to go on with his fellow delegates in executive into matters which were from self-interest but also from cultural 0 London in resisting amendment to the properly judicial.l By 16 June the issue cringe. Powerful leadership was found in Bill, they were fortified by faith in was sorted out by agreement that the the Chief Justices, especially Griffith in Griffith's authority. Perhaps his influence High Court itself and not the Queensland and Sir of reached further. Barton in London was governments should decide whether a . Griffith used his channel dismayed to receive from that eminent Constitutional case should be referred of communication as Lieutenant­ constitutionalist James Bryce an to the Privy Council. Griffith plumed Governor to advise Chamberlain that the astonishing communication in which himself on having suggested this Commonwealth Bill was far from perfect Bryce complained that the Bill in its final formula. In fact its origins lay in an and that Australian public opinion would form 'emanated from a small coterie of Argus editorial which had been taken up welcome British improvements of it. This Prime Ministers', that there was 'no by Sir George Turner and was completely contrary to the line taken evidence to show that this Bill or draft communicated to Barton through by Barton, Deakin and Kingston, who Constitution had been really satisfactorily O'Connor and Wise.ll Griffith was argued that a Bill endorsed by referenda discussed and considered in the colonies apparently asked to cable the new in five Australian colonies should not be themselves' and that 'it was a very scanty, wording to Chamberlain as a suggestion tampered with because it bore the stamp fragmentary, and imperfect sketch of a from himself. This was of course a way of public approval. Griffith, a stranger to Federal Constitution'.9 Of course Bryce of ensuring that the hitherto critical self-doubt, never questioned the may have been capable of thinlcing of Griffith was associated with the propriety of his intervention, and in old such ignorant criticisms by himself, but it accepted compromise. He now had a age boasted of it to Sir Ronald Munro­ required no conspiracy theory to stake in the section 74 formula. Ferguson.7 Chamberlain's tough line with speculate that he may have been guided Nevertheless his criticisms of Barton the delegation over Section 74 was by an Australian source whose opinions were carping. 'I think the behaviour of doubtless strengthened by his advice from he respected, and if so Griffith would be Barton and Kingston has been Griffith and Way, and the colonial a prime suspect. monstrous', he told Inglis Clark, and a Governors were also encouraged to few weeks later returned to the theme: 'I intervene. Most informed the Colonial ventually Chamberlain made a think that Barton in London was trying Otftce of the strength of 'respectable' concession. Constitutional cases to retrieve the blunder he made in opposition in Australia to Section 74. Einvolving the Commonwealth Melbourne, and in doing so made still That ass Lord Lamington, the Governor and States, or relations between two or worse blunders.'12 of Queensland, criticised what he termed more States, should be decided by the the obstinacy of the Australian delegation High Court unless the relevant In November 1900 Barton, hopeful in public at a church gathering in May governments agreed to let the case go to that he might be the first Prime Minister, 1900. Like Griffith, who probably the Privy Council. It did not suit discussed with Dealcin the makeup of a encouraged him, he remained Chamberlain to remain at odds with the potential Cabinet in which all States unrepentant in his later years. In 1923 potential leaders of a Federated might be represented. Griffith was the when Walter Murdoch's biography of Australia, and by conceding a degree of outstanding figure in Queensland, and Alfred Dealcin was reviewed by the Times Australian constitutional authority Dealcin wrote to him twice. Although Litermy Supplement Lamington wrote to Britain retained what really concerned reluctant to abandon the security of the that journal with the aim of putting him, the right of the Privy Council to Bench for a return to politics, Griffith Murdoch right over his Deakinite intervene in commercial cases. The showed some interest in becoming interpretation of the section 74 Australian delegation were happy with Attorney-General with a promise of going controversy. Nemesis overtook him, this compromise, but Queensland to the High Court when it was however, as this provoked a tremendous remained critical. The Philp constituted. But Barton told Dealcin that rejoinder from Sir a few Government expressed alarm that the he refused 'to begin with bargains about weeks later. 8 new arrangement might take away the great offices'. In any case he preferred

6 %rker (Brisbane), 19 August 1899. 7 Griffith to Munro-Ferguson, 24 June 1914, Novar MSS, NLA 696/3750. 8 Times Litermy Supplemellt, 28 June 1923, p. 440. 9 Bryce to Barton, 4 May 1900. 10 Joyce, Samuel l,'(!a/ker Griffith, p. 213. 11 Argw, 4 June 1900; J. Quick and R. R. Garran, The Annotated Constitution ofthe Commonwealth ofAustralia, Angus & Robertson, Sydney and Melbourne, 1901, p. 247. 12 Grifftth to A. l. Clark, 9 August 1900, Inglis Clark MSS, University of . • Deakin or O'Connor. Although less Where Hopetoun and Barton understood September. Griffith wanted the British unforgiving than Kingston about that the Australian Government was parliament to legislate that in the event of Griffith's conduct over Section 74, Barton taking over from Britain as the colonial war the Governor-General of a had been affected by the experience, and power in charge of Papua, Griffith Dominion could cancel impending he may also have doubted the viability of believed that it was simply replacing the elections and recall the old Parliament.!? a cabinet including both Griffith and as agent of the This showed an outmoded view of Kingston. In December when Lord British Government. He was, reported Australian autonomy to say the least, and Hopetoun commissioned Lyne to form Hopetoun, 'in a state bordering on the Colonial Office politely dismissed the the first ministry, Lyne at a late stage in madness over it', wanted the Governor­ suggestion as impractical. his negotiations offered the Attorney­ General to advise Joseph Chamberlain t should not be thought that Griffith Generalship to Griffith, with a promise of that the was unfit to was consistently deferential to becoming first Federal Chief Justice, but perform its duties, and questioned the I British authority even to the judicial Griffith wanted to haggle about terms need for the Commonwealth committee of the Privy Council. In its and Lyne was in a hurry and at length Government to pass legislation early years the High Court, as is well 1 threw up his commission.13 Griffith sanctioning the takeover. 5 This known, drew on American precedent to would be consoled only by appointment blinkered view of Australian autonomy establish the doctrine of the implied to the Privy Council, It is hardly was quietly overruled. The necessary immunity of instrumentalities as a legislation was introduced into the House wonderful that during the celebrations device to prevent the Commonwealth of Representatives in November 1901 inaugurating the new Commonwealth and the States from encroaching on and went through Parliament without Griffith was in a bad temper. Barton, he each others areas of authority. In 1906 difficulty. The hand-over followed in confided to his normally reticent diary, the Victorian Supreme court took March 1902, but Griffith continued to was a 'fathead' and Dickson, advantage of a loophole in Section 74 to fuss about a variety of details ranging Queensland's Cabinet Minister, a 'prating appeal direct to the Privy Council in the from areas in which he was indubitably cockatoo'. His mood cannot have been case of Webb v Outtrim, regarding the competent to express an opinion, such as improved by the Federation banquet on liability of Commonwealth officials to the appointment of a new Chief Justice the night of 1 January. He was meant to pay State income tax. The Privy Council for Papua, to gossip about the private life be the main after-dinner speaker, but rejected the doctrine of implied of the anthropologist Dr. WE. Roth, who found it hard to malce himself heard immunity on the grounds that it could was under consideration for an not apply in a British Empire against the hubbub of conversation 1 appointment in the Territory. 6 He was community, adding gratuitously that among the diners, and Barton had to under strain at the time because of the the royal authority could be invoked to scold the guests to be quiet.14 lingering de~th of his elder son, but his resolve conflicts of legislation. Griffith 'A state bordering madness' behaviour showed that he was still chafing and Barton were furious. 'Old man Amongst the earliest tasks against his exclusion from the process of Halsbury's judgement deserves no better confronting the new Commonwealth Australian nation building. description that that it is fatuous and Government was the administration of Thus it showed considerable beneath consideration' wrote Barton. British New Guinea (later Papua). magnanimity in Barton when the High 'But the old pig wants to hurt the new Having reluctantly annexed the south­ Court was constituted in September Federation and does not much care how eastern quarter of New Guinea in 1884 1903 to insist that Griffith should be he does it.'18 Griffith was more and established an administration in Chief Justice. Kingston and others measured but equally dismissive. In its 1888, the Colonial Office was only too objected strenuously. As Chief Justice subsequent judgements the High Court happy to hand over the territory and its Griffith did not abandon his activities as largely ignored the Privy Council's costs to the Australian Commonwealth. grey eminence and amateur Polonius, for findings. And in 1915, when the British Hitherto its administration had been although no longer Lieutenant-Governor government floated a suggestion that delegated to the Queensland he saw his Privy Councillorship as Dominion judges should be seconded to Government with the Governor as formal entitling him to advise the powerful. The the judicial committee of the Privy link with London. Griffith, still taking an most startling example of this occurred at Council, Griffith summarily rejected exalted view of his authority as the outbreak of war in August 1914, the proposal because he believed that Lieutenant-Governor, claimed authority when 'on my responsibility as privy the visiting judges would not have to communicate directly with the councillor' as he put it, and without parity of salary or status. In his defence Governor-General over the details of the informing the Cook Government, he of the Australian perspective vis-a vis the transfer, by-passing the Minister for urged the new Governor-General Privy Council Griffith had turned full External Affairs, Barton. During the later Munro-Ferguson to approach the British circle. The poacher had turned months of 1901 he bombarded the Government with an extraordinary gamekeeper, but of course the High Governor-General, Lord Hopetoun, with suggestion. The double dissolution Court was now his preserve which he communications about New Guinea. general election was due in early was protecting.

13 J. Hume Cook, 'Recollections and Reflections: The Story of My Life' 1935, unpublished MS, Hume Cook, NLA 601/9/1. 14 Sydney Morning Herald, 2 January 1901. . 15 Hopetoun to Barton, 8 October 1901, Barton MSS, NLA 51/!1832-35. 16 Hopetoun to Barton, 3 December 1901, Barton MSS, NLA 51/1/869-71; same date 51/1/872; 30 January 1902 51/1/906 17 Griffith to Munro-Ferguson, 8 August 1914, Navar MSS, NLA, 696/3770. 18 Barton to Bavin, 26 January 1908, Bavin MSS MLA 560/!147.