Samuel Griffith Society Proceedings Vol 10

Upholding the Australian Constitution Volume Ten Proceedings of the Tenth Conference of The Samuel Griffith Society Hotel Grand Chancellor, Brisbane, 7–9 August, 1998 © Copyright 1998 by The Samuel Griffith Society. All rights reserved. Table of Contents Foreword John Stone Dinner Address Hon Rob Borbidge, MLA Reinventing the Federation Introductory Remarks John Stone Chapter One Sir David Smith, KCVO, AO A Funny Thing Happened on the Way to the Referendum Chapter Two Dr Suri Ratnapala The Movement to an Australian Republic: A Missed Opportunity Chapter Three David Russell, QC The Republic: Is there a Minimalist Position? Chapter Four Ian Holloway Australia, the Republic and the Perils of Constitutionalism Chapter Five Hon Peter Connolly, CBE, QC Taking Stock of the Role of the Courts Chapter Six Dr John Forbes “Just tidying up”: Two Decades of the Federal Court Chapter Seven Dr Colin Howard, QC The People of No Race Chapter Eight Barry Maley Importing Wooden Horses Chapter Nine Professor Brian Galligan Federal Renewal, Tax Reform and the States Chapter Ten Alan Wood Beneath Deakin’s Chariot Wheels: The Decline of Australia’s Federation Chapter Eleven Professor Geoffrey de Q. Walker Ten Advantages of a Federal Constitution Concluding Remarks Rt Hon Sir Harry Gibbs, GCMG, AC, KBE Appendix I Occasional Address Professor Kenneth Minogue Aboriginals and Australian Apologetics Appendix II Contributors Foreword John Stone The Samuel Griffith Society’s tenth Conference was held in Brisbane, and the papers delivered to it constitute the bulk of this Volume in its Proceedings, Upholding the Australian Constitution. The qualification derives from the inclusion also in this Volume of an Occasional Address delivered to the Society in Sydney last May by Professor Kenneth Minogue, on the topic Aborigines and Australian Apologetics. If these Proceedings had contained nothing else, they would have been worthwhile for that paper alone. In fact, of course, these Proceedings contain a great deal else—namely the twelve papers delivered in Brisbane, together with the brief concluding remarks of the Society’s President, the Rt Hon Sir Harry Gibbs. As with all its predecessors, the Brisbane Conference dealt with a number of themes. In the aftermath of the Constitutional Convention held in Canberra last February, four papers provide various forms of post-mortem on that unhappy occasion. Despite the varying personal standpoints of the four authors (one of whom is a self-professed republican), all are united on one point: namely, that the malformed proposal which emerged from the Convention is not merely unsatisfactory, but positively dangerous—adding further, as it would, to the already excessive power which the Executive, and the Prime Minister in particular, now exercises within our constitutional system. Four days after the conclusion of our Conference the federal Government launched its so- called “tax package”. That package includes provision for a Commonwealth-imposed goods and services tax (GST) which would worsen even further what students of our federal system call the “vertical fiscal imbalance” (VFI) between the taxing powers and the spending responsibilities of the Commonwealth and the States, respectively. Then, seventeen days later, the Prime Minister advised the Governor-General to dissolve the present Parliament so that a federal election may be held on 3 October, 1998. As this foreword is being written, the election campaign is under way, and before these Proceedings are published early in November, we shall know the outcome. Suffice to say here that, against that background, the last three chapters in this Volume are directly relevant, not merely to the VFI issue, but to the issue of federalism more generally. As such, they go to the heart of the concerns to which, from the outset, this Society’s efforts have been directed. In particular, Professor Geoffrey Walker’s paper on Ten Advantages of a Federal Constitution provides a heart-warming re-statement of the positive virtues of federal systems of government. In doing so, it reminds us of some of the reasons why in our increasingly centralised Australia today we have a growing sense of alienation between government in Canberra and the people _ particularly those in the outlying States. At a time when political observers have been puzzling over the reasons for the rise of Pauline Hanson’s One Nation party, Professor Walker’s paper may provide the more disinterested among them, at any rate, with some clues. In his concluding remarks to the Conference, Sir Harry Gibbs referred to “the undemocratic suggestion that judges should remedy the omissions of the legislatures”. Three of the papers in this Volume touch, in one way or another, on that issue. That by Dr John Forbes, examining in some detail the regrettably non-illustrious history of the Federal Court since its unnecessary creation two decades ago by the Fraser Government, is of particular importance, having in mind the prospective role for that Court laid down in the recently amended Native Title Act. It will be interesting to see whether the Court’s pronouncements in that area prove to be as open to question as, say, its performance during the waterfront dispute earlier this year to which, inter alia, Dr Forbes refers. As Sir Harry Gibbs said, quoting an English judge, Lord Reid: “Where Parliaments fear to tread, it is not for the courts to rush in”. For the rest, it remains only to say that, like its nine predecessors, this Volume contains a wealth of material which deserves to be widely read, and widely debated. Like them, it is to that objective that it is dedicated. Dinner Address Reinventing the Federation Hon Rob Borbidge, MLA It is a delight to be here tonight: to be among people whose rigorous conservative convictions guarantee a stimulating evening ahead of a weekend of debate and discussion that will at times be robust. I chose my topic for tonight’s speech very deliberately, because it is clear to me, as it is to a great many others on the conservative side of the national debate, that we really have no choice but to reinvent the federation. Without this action, the federation will be irreparably damaged, perhaps fatally so, and the people’s freedoms with it. That would be a very serious crisis. And this is of course a serious occasion, even though in the convivial ambience of dinner. But if you will allow one small pun, can I say that in no way is it hard labour to spend time among people who share the conviction that conservatism not only has a glorious tradition and a fine record of achievement, but also a glorious future. That future demands some very hard work. It is a great national task to achieve a better future than we have a past — and we have a wonderful past. This work must never cease. A little fable from the writer Italo Calvino comes to mind to illustrate this point. In his book Invisible Cities he writes of Thekla, a city forever under construction. One passage is remarkably to the point where we are concerned tonight, to canvass the question of reinventing the federation. Calvino writes: “If you ask, ‘Why is Thekla’s construction taking such a long time?’, the inhabitants continue hoisting sacks, lowering leaded strings, moving long brushes up and down, as they answer, ‘So that its destruction cannot begin’ ”. Moving from the mythical Thekla to the real Australia, the lesson is absolutely obvious. The Founding Fathers provided a foundation stone. They gave the vital spark to a dynamic new nation and clothed it in the fine cloth of federalism. They pointed us towards a future they knew — with the easier certainties of earlier times — they could not design, but for which, in their wisdom — and that included the wisdom to comprehend the real dynamics of politics and the true motivation for individual and communal advancement — they provided a signpost. It is about that future and our path to it that I want to talk tonight. I want to talk about the future in the same vein as the Founding Fathers did, indeed as that fine Queenslander Samuel Griffith did. I want to talk about the future of our country, about the future of our Federation, in the context of the process of renewal that any dynamic society, and any energetic people, must make a continual process if they are to advance. I believe we — conservatives, some thinkers, some doers, together a great coalition — can point the way. The context in which Australians must advance their interests and those of their country is complex. It is the promise of diversity that is our strength, and the danger of division — and I mean the division of ideals, not of geography or political jurisdiction — our greatest challenge. At the Constitutional Convention in Canberra in February I made the following comments. They were received quite well, for which I am modestly grateful. They are entirely apt for our deliberations here tonight. I said: “Even if Federation in 1901 failed to confer the full measure and quality of independence we enjoy today, subsequent Acts of the British Parliament and the several legislatures of Australia remedied that condition ... “Time passes. People and nations change. This is recognised and welcomed everywhere. The Australia about to enter the second century of its magnificent federation is a country the founders of federation would hardly recognise. But we are not unique in that sweep of change — only in the measure of it and our responses to it. “Where we are unique is in being Australian, in the world view we have developed, and in our many relationships in the region and throughout the world. We are unique in having created our own way of dealing with life and events”.

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