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Ir Samuel Hind the Era Tor Griffith Scenes ,. ~!?:!":;;~" " ill Ill Hi ll[ Hi ~ iR lE ID' E UJ!JA1 fiLE 8 ill " ~~ -"'""""" ~ 0' " !0 - ~ >'""- =~ - Emeritus Professor Geoffrey It ir Samuel Griffith e Bolton's biography of Edmund Barton is to be published in hind the scenes October 2000. era tor It is well known that in 1893 Sir Samuel Griffith, Premier of Queensland, 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 Sydney; 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 Wales. 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 Western Australia 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 New South Wales 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!]\ Brisbane). 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, Adelaide. 5 Official Record ofthe Debates ofthe Awtralmian Federal Convention, Sydney, 1897, Government Printer, pp. 2295 er seq. ,. ·=~;$~"~ ~ B~R ELI~~ ID, ffi JH tR ~f®'R N lE S ~ ID R E Bl Nm ID R " " ""s " ~~ ~Jttif*'~ ""' ~"" ~ ~ - ~= :74 "'~ "'"'"'"" ~ - - ~ "" "' ' 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 Samuel Way of reached further. Barton in London was governments should decide whether a South Australia. 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.
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