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The Australian Constitution - A Centenary Assessment THE HONOURABLE JUSTICE MICHAEL KIRBY* LUCINDA'S HANDIWORK For some reason which I cannot fathom, I long believed that the SS Lucinda was a paddle-steamer plying the Murray River in the 1890s. Perhaps it was a trick of the mind: assuming that the factious politicians who refined the first effective draft of the Australian Constitution would only agree to meet on neutral territory: the water between the two principal colonies. Such an assumption would have been legally inaccurate.' But, more importantly, it was historically erroneous. The SS Lucinda actually belonged to the Queens- land Government which had generously put it at the disposal of Samuel Griffith for use in February and March 1891. The chosen delegates who climbed aboard in Sydney Harbour for its historic journey to the Hawkesbury River hammered out a draft which became, ten years later, Australia's federal Constitution.' The Committee, under Griffith, worked on a draft Bill prepared by Inglis Clark of Tasmania. Alas, Clark was laid low by influenza which was later to affect Griffith; but not before he had worked over the long Easter weekend on the revised draft to be presented to the First Convention. Clark's illness caused Griffith and his fellow draftsman, Charles Kingston of South Australia, to invite Edmund Barton to join them.3 It was an auspicious choice. Barton became very influential in the Conventions. He went on to become the first Prime Minister and, with Griffith, a member of the first High Court. This core of drafters, with a group of lawyers from all invited colonies except Western Australia and New Zealand (who had not arrived) made up the Lucinda party. -
What Is Executive Power?
1 What is Executive Power? I Introduction In the 1988 case of Davis v Commonwealth, Mason J said of executive power that it is potentially very broad yet ‘its scope [is not] amenable to exhaustive definition.’1 Executive power is a power with significant content but ill-defined limits. It is not the particular power of lawmaking, or of determining disputes but, rather, the general power to carry out all the other functions of government. In the Westminster tradition, all governmental power derived originally from the Crown2 and independent legislative3 and judicial4 functions were a subsequent development. The Coronation Charter of Henry I, the immediate successor to William I and, therefore, the first postconquest king to have a coronation as such, illustrates the breadth of the original power of the Crown (the following excerpts indicating executive, judicial and legislative power respectively): 1 Davis v Commonwealth (1988) 166 CLR 79, 93. 2 Magna Carta 1215 (Imp); NSW v Commonwealth (1975) 135 CLR 337, 480, 487–91 (‘Seas and Submerged Lands Case’) (Jacobs J); J H Baker, An Introduction to English Legal History, (Butterworths, 2nd ed, 1979) 12–15; John Gillingham, ‘The Early Middle Ages 1066–1290’ in Kenneth Morgan (ed), The Oxford Illustrated History of Britain (Oxford University Press, 1984), 104; Elizabeth Wicks, The Evolution of a Constitution: Eight Key Moments in British Constitutional History(Hart, 2006) 3–6; cf Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 137–8 Mason CJ discussing ‘sovereign power which resides in the people’ by virtue of the mechanism for constitutional amendment being a referendum under s 128 of the Constitution. -
On the Origin of Section 96 of the Constitution I
1438 UNSW Law Journal Volume 39(4) 6 ON THE ORIGIN OF SECTION 96 OF THE CONSTITUTION GREG TAYLOR* I INTRODUCTION In so many ways Australian federalism has been a study in unintended consequences – never more so, perhaps, than in relation to section 96 of the federal Constitution. In Victoria v Commonwealth (‘Second Uniform Tax Case’), Dixon CJ postulated that the true scope and purpose of the power which s 96 confers upon the Parliament of granting money and imposing terms and conditions [should] not admit of any attempt to influence the direction of the exercise by the State of its legislative or executive powers. It may well be that s 96 was conceived by the framers as (1) a transitional power, (2) confined to supplementing the resources of the Treasury of a State by particular subventions when some special or particular need or occasion arose, and (3) imposing terms or conditions relevant to the situation which called for special relief of assistance from the Commonwealth. It seems a not improbable supposition that the framers had some such conception of the purpose of the power.1 His Honour necessarily expressed himself in such cautious terms because section 96, unlike virtually all the rest of the federal Constitution, was not publicly hammered into shape at the Conventions. Rather, it was added at the last minute, at the Premiers’ Conference of February 18992 (the so-called ‘secret’ * Honorary Professor, Marburg University, Germany; Associate Professor, Graduate School of Business and Law, RMIT University. The author warmly thanks all referees for their useful comments, but the usual caveat applies. -
1 Indigenous Recognition Or Is It a Doomed Mission?
Indigenous recognition or is it a doomed mission? Proposals to Constitutionally recognise Aboriginal and Torres Strait Islander peoples and their language are often divided into the symbolic as either amending the preamble or standalone provision(s) which acknowledge Indigenous identity and the more substantive such as a constitutional ban on racial discrimination or a First Nation’s voice to Parliament. While all Australian States have now adopted purely symbolic Indigenous recognition provisions, it has generally fallen out of favour at the national level. Are there any good reasons to adopt purely symbolic forms of Constitutional recognition? One should compare the experience of reforms in the Australian States. I Necessity and broader movements The present state of non-recognition of indigenous culture and language in the national Constitution can inflict harm and act as a form of oppression, As Taylor states, this can imprison individuals and groups in a false, distorted and reduced mode of being.1 Australian First Nation Peoples (FNP) as a minority group experience marginalisation from mainstream social, political and economic discourse.2 A preamble or standalone provision(s) recognising indigenous culture and language may assist in changing societal and legislative measures in favour of substantive equality. With the intended function of redeeming the document, unifying communities and reducing or eliminating barriers to entry in the otherwise marginalized activities. The proposal has national approval in principle by all major political parties, with intentions of furthering national reconciliation and to guard Australia’s reputation internationally through indigenous wellbeing.3 Instilling in the Constitution a restorative justice theory, whereby in the interests of equality indigenous are treated differently4 by their positive inclusion. -
The Chief Justice and the Governor-General Chief Justice Robert French
Melbourne University Law Review Annual Dinner The Chief Justice and the Governor-General Chief Justice Robert French 29 October 2009, Melbourne It would be something of an exaggeration to describe Law Reviews as the only drivers of intellectual discourse about law, justice and the legal system. In fact they have been rather harshly treated in the past in the United States and in Australia. Fred Rodell's famous denunciation "Goodbye to Law Reviews" was published in the 1930s in the United States 1 and in 1999 in the Australian Law Journal 2. His paper, bolstered in the Australian Law Journal by some like-minded sentiments from John Gava, included laments about bad writing, mediocrity and lack of humour. As to the latter, he observed: 3 The best way to get a laugh out of a law review is to take a couple of drinks and then read an article, any article, aloud. That can be really funny. ______________________ 1 F Rodell, "Goodbye to Law Review" (1936) 23 Virginia Laaw Review 38. 2 F Rodell, "Goodbye to Law Reviews" (1999) 73 Australian Law Journal 593. 3 F Rodell, "Goodbye to Law Reviews" (1999) 73 Australian Law Journal 593 at 594 2. On the other hand a measured defence and some praise was offered by Justice Kirby in 2002 in his piece "Welcome to Law Reviews" published in this University's Law Review. He said: 4 Law reviews can have a value that transcends even the work of the High Court of Australia. They must criticise, cajole and analyse the law. They must question received wisdom and current orthodoxy. -
EULOGY for PROFESSOR GEORGE WINTERTON Professor of Constitutional Law, University of Sydney
EULOGY FOR PROFESSOR GEORGE WINTERTON Professor of Constitutional Law, University of Sydney DELIVERED BY DR PETER GERANGELOS Faculty of Law, University of Sydney 12TH NOVEMBER 2008, ST FRANCIS OF ASSISI, PADDINGTON, SYDNEY We are gathered here today to farewell and celebrate a great man. ‘And they shall be as when the standard-bearer falleth,’ so say we of the Academy and the Legal Profession. I want to assure the family that all of us, and those of us here in spirit, stand with you and George, shoulder to shoulder, a vast congregation of advocates and witnesses testifying before the world and the courts of the Almighty to the brilliance and goodness of this special man, to a great scholar, lawyer and teacher, dedicated to his calling, leading member of the great constitutional councils of the nation, and most importantly devoted husband and father, a dedicated son and loving brother. The God, who wept at the death of his friend, at the loss of the only son of a widow, cannot but incline His ear to hear us. I will attempt to celebrate the real George Winterton, not an idealised version. George Winterton: • Professor of Constitutional Law, University of Sydney • Emeritus Professor, University of New South Wales. • Doctor of Juridical Science, Columbia University. • Doctor of Laws (honoris causa) University of Western Australia (his alma mater) from which he had received the university medal as an undergraduate. • Barrister of the Supreme Courts of New South Wales, Victoria and Western Australia. • Fulbright Scholar and the holder of numerous other academic prizes and awards. -
Crown and Sword: Executive Power and the Use of Force by The
CROWN AND SWORD EXECUTIVE POWER AND THE USE OF FORCE BY THE AUSTRALIAN DEFENCE FORCE CROWN AND SWORD EXECUTIVE POWER AND THE USE OF FORCE BY THE AUSTRALIAN DEFENCE FORCE CAMERON MOORE Published by ANU Press The Australian National University Acton ACT 2601, Australia Email: [email protected] This title is also available online at press.anu.edu.au National Library of Australia Cataloguing-in-Publication entry Creator: Moore, Cameron, author. Title: Crown and sword : executive power and the use of force by the Australian Defence Force / Cameron Moore. ISBN: 9781760461553 (paperback) 9781760461560 (ebook) Subjects: Australia. Department of Defence. Executive power--Australia. Internal security--Australia. Australia--Armed Forces. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying or otherwise, without the prior permission of the publisher. Cover design and layout by ANU Press. Cover photographs by Søren Niedziella flic.kr/p/ ahroZv and Kurtis Garbutt flic.kr/p/9krqeu. This edition © 2017 ANU Press Contents Prefatory Notes . vii List of Maps . ix Introduction . 1 1 . What is Executive Power? . 7 2 . The Australian Defence Force within the Executive . 79 3 . Martial Law . 129 4 . Internal Security . 165 5 . War . 205 6 . External Security . 253 Conclusion: What are the Limits? . 307 Bibliography . 313 Prefatory Notes Acknowledgement I would like to acknowledge the tremendous and unflagging support of my family and friends, my supervisors and my colleagues in the writing of this book. It has been a long journey and I offer my profound thanks. -
Bibliography
Select Bibliography [APP.10] CASEBOOKS .................................................................................................................. 2 [APP.20] REFERENCE BOOKS ...................................................................................................... 2 [APP.20] Annotations of Commonwealth Constitution .......................................... 2 [APP.30] Historical background ................................................................................. 2 [APP.60] Constitutional reform proposals: Official publications ........................... 11 [APP.70] Bibliographies ............................................................................................. 12 [APP.80] High Court .................................................................................................. 13 [APP.90] Justices ........................................................................................................ 16 [APP.480]CHAPTER 1: CONSTITUTIONAL FUNDAMENTALS ................................................. 27 [APP.490]CHAPTER 2: PARLIAMENTARY SOVEREIGNTY AND STATE CONSTITUTIONAL LAW .............................................................................................................................. 33 [APP.500]CHAPTER 3: THE EXECUTIVE ..................................................................................... 35 [APP.510]CHAPTER 4: INCONSISTENCY .................................................................................. 41 [APP.520]CHAPTER 5: COMMERCE AND CORPORATIONS .................................................. -
Inaugural George Winterton Lecture Sydney Law School, the University of Sydney
Inaugural George Winterton Lecture Sydney Law School, The University of Sydney The Executive Power Chief Justice RS French Sydney, 18 February 2010 It is an honour to have been asked to deliver this inaugural lecture in celebration of the life and work of the late Professor George Winterton. It is nevertheless an honour tinged with sadness and one which I wish had not come to pass. George's death in 2008, although the result of an illness he had battled for a long time, was untimely. He still had much to give to constitutional scholarship in this country, to public debate about the republic and to his family, his wife Ros and their children, and to his friends, including Peter Gerangelos who organised this lecture. I have chosen "The Executive Power" as my topic as it was a subject which occupied a significant part of George's scholarship. His book Parliament, the Executive and the Governor-General: a constitutional analysis1, published in 1983, was a seminal work in the field. Professor Geoffrey Sawer at the time described it as "a most impressive piece of scholarship, quite the most thorough examination of the question yet written". ______________________ 1 Winterton G, Parliament, the Executive and the Governor-General: a constitutional analysis (Melbourne: Melbourne University Press, 1983). 2. I do not pretend to match the breadth or the depth of George Winterton's thinking on the subject. His body of work and that of his colleagues in the Academy in this, as in other areas of legal scholarship, is neither forensic nor judicial. -
Submission to the Joint Select Committee on Constitutional
Submission to the Joint Select Committee on! Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples! by! Nick Hobson DFC, AFC! ! The Expert Panel’s report on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution was presented to the then Prime Minister, The Hon Julia Gillard MP, on 16 January 2012. Subsequently, the incumbent Prime Minister, The Hon Tony Abbott MP, on Australia Day this year, re-iterated his strong belief that recognising Australia's first people would be completing the constitution more than changing it.! ! Constitutional change is never a guaranteed event; historically, the people of the Commonwealth have only agreed to 8 out of the 44 referenda that have been submitted to them. Many commentators suggest that bi-partisan support will garnish the required result in respect of indigenous constitutional recognition. That said, there have been two referenda which received bipartisan support but never passed muster. They are the simultaneous elections -1977 and the aviation - 1937 referenda.! ! Additionally, the lowest percentage formal vote of 54.39% for the bottom rung of the successful referenda so far, along with the constitutional double majority requirement, already starts to raise the hurdle to a level that will be difficult to achieve - not impossible though, just difficult! It would also seem, that to reach the highest percentage formal vote of 90.77% as was the case with the 1967 referendum, could be nothing more than a pipe dream. None-the-less, such known difficulties -
Does Australia Have a Constitution? Part I: Powers - a Constitution Without Constitutionalism
DOES AUSTRALIA HAVE A CONSTITUTION? PART I: POWERS - A CONSTITUTION WITHOUT CONSTITUTIONALISM Kenneth R. Mayer* Howard H. Schweber** Abstract: The conventional wisdom about the Australian Constitution is that it neither says what it means, nor means what it says. The gap between language and meaning is starkest in the sections on executive power, in which, according to a universally accepted view of what the constitutional framers intended to create, the explicit language vesting all executive power in the Governor- General is supplanted by the conventions of responsible govern- ment. One consequence of this divergence between language and practice is that constitutional interpretation normally re- quires a series of finesses, in which much of the text is read out of the document entirely. We argue that this conventional view is incorrect, in that during periods of high conflict, especially during the 1975 crisis in which the Governor General dismissed the Prime Minister under disputed circumstances, the Constitution turns out to mean precisely what it says. The Constitution, as a result, does not serve the vital function of channeling and resolv- ing political conflict according to established rules. Instead, the Constitution itself serves as a weapon of political conflict, intensi- fying political disagreements to the detriment of legitimacy and stability. The tensions at the root of the 1975 crisis remain un- resolved. This is the first of two articles that explore the provoc- ative proposition that in some meaningful sense Australia has no constitution. Since there is a well-known document called the * Professor of Political Science, University of Wisconsin-Madison, and Affili- ate Faculty, LaFollette Schol of Public Affairs. -
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Leslie zincs* DEAD HANDS OR LIVING TREE? STABILITY AND CHANGE IN CONSTITUTIONAL LAW PROFESSOR GEOFFREY LINDELL eoffrey Lindell has been a leading figure in Australian constitutional law for more than 20 years. He and I have been close friends and colleagues for even longer. I believe that each of us has been a strong influence on the G other in our thinking on constitutional law and on the way we taught it. That does not mean we agree on everything. Differences of personality inevitably affect perceptions and convictions. But Geoffrey's clear writing style and straightforward logical form of argument are such that you usually know exactly where the point of disagreement lies. I have said of him from time to time (as I once heard H L A Hart say of John Austin): 'He may be clearly wrong, but at least he is wrong clearly'. In fact, we are usually on the same wavelength. Geoffrey Lindell's work covers a wide range of matters within constitutional law. My first acquaintance with his work was in supervising his thesis on justiciability of constitutional questions, which was a pioneering effort. Since then he has been our leading authority on that subject. ' His article on the effect of independence on the binding force of the Constitution became a classic. His idea of popular sovereignty as a legal doctrine was later taken up by High Court judges, but for a purpose, and with results that he did not intend or entirely approve.' Emeritus Professor and Visiting Fellow, Law Program RSSS, Australian National University.