Upholding the Australian Constitution Volume Twelve Proceedings of the Twelfth Conference of The Samuel Griffith Society Gazebo Hotel, Sydney, 10–12 November, 2000 © Copyright 2001 by The Samuel Griffith Society. All rights reserved. Table of Contents Foreword John Stone Dinner Address Rt Hon Sir Harry Gibbs, GCMG, AC, KBE The Erosion of National Sovereignty Introductory Remarks John Stone Chapter One John Stone Setting the Sovereignty Scene: Use and Abuse of the Treaty Power Chapter Two Hon Peter Walsh, AO The UN Convention on Refugees and its Implications for Australia’s Sovereignty Chapter Three Hon Max Bradford, MP (NZ) The ILO and Sovereignty: New Dawn or Dinosaur? Chapter Four Ray Evans The Kyoto Protocol: Fast Road to Global Governance Chapter Five Ruth McColl, SC The Argument against Mandatory Sentencing Chapter Six Hon Denis Burke, MLA Mandatory Sentencing: A Catalyst for Debate Chapter Seven Sir David Smith, KCVO, AO The Referendum: A Post-Mortem Chapter Eight Peter Ryan, MM The Whitlam Years: A Retrospect Chapter Nine Dr Nancy Stone The Referendum Debate: A Note on Press Coverage Chapter Ten Malcolm Mackerras The Inner Metropolitan Republic Chapter Eleven Professor Geoffrey Blainey, AC A Black Arm-Band for Australia’s 20th Century? Chapter Twelve Professor David Flint, AM A Century of Achievement Concluding Remarks Rt Hon Sir Harry Gibbs, GCMG, AC, KBE Appendix I Address Launching Volume 11 of Upholding the Australian Constitution Hon Peter Walsh, AO Appendix II Occasional Address Professor Kenneth Minogue Civil Identity and the Anglosphere in Australia Appendix III Occasional Address Professor Kenneth Minogue National Sovereignty versus Internationalism: The Importance of Repealability Appendix IV Contributors Foreword John Stone The twelfth Conference of The Samuel Griffith Society was held, finally, in Sydney in November, 2000, and this Volume of the Society’s Proceeding’s, Upholding the Australian Constitution, contains the papers, and Dinner addresses, delivered to that Conference, together with the brief concluding remarks of our President, the Rt Hon Sir Harry Gibbs. I say “finally” because plans had originally been made for a Conference of the Society in February, 2000 focused around the single issue of Sovereignty, and taking advantage of the then expected presence in Australia of a delegation from the United States Congress, from which three eminent speakers at the Conference were to have been drawn. At the last moment, and much to the mortification of the Board of Management, the Congressional delegation’s plans underwent such significant change that those speakers’ Conference participation would no longer have been possible. Accordingly, the Conference had to be cancelled, to be restored only nine months later. One brand was however saved from this burning. Professor Kenneth Minogue, who had arranged to come to Australia to speak at the originally intended Conference, was able to maintain his travel plans and, as a result, delivered two splendid Occasional Addresses in Melbourne and Sydney respectively. Those addresses, together with the Hon Peter Walsh’s excellent address launching Volume 11 of these Proceedings, now appear as Appendices to this Volume. Professor Minogue’s address on Australia’s place in, and the world significance of, the so-called “Anglosphere”, sheds a fascinating light on why, despite all the fashionable chatter about “national identity”, “multiculturalism”, and so on, Australia is the kind of successful constitutional democracy that it is today. The most prominent topic of the twelfth Conference was, as indicated, Sovereignty, and it is clear that this is a topic to which the Society is likely to return. Certainly, nothing could be more subversive of the foundations of our present Constitution than the direct and indirect attacks upon Australia’s sovereignty now launched almost daily by one set of international legal activists or another. Even the outpourings from the word-processor of Mr Justice Kirby are outdone by the torrent of treaty-making and other such activities which emerge daily from the doors of the United Nations and its subsidiary agencies. Mention of the regrettable case of Mr Justice Kirby leads, of course, to the more general question of judicial activism and the whole issue of the separation of powers (and their obverse, responsibilities) between Parliament and the judiciary. The two papers in this volume relating to the topic of mandatory sentencing not only bear directly on that issue, but also indirectly (because of attempts by the U.N. on Human Rights Commission to put its interfering oar into Australia’s domestic political water) on the issue of sovereignty. Whatever one’s views may be on the topic of mandatory sentencing (and I freely confess that on this issue my own views are, most unusually, somewhat at odds with those of our President!), the two papers on that topic by the President of the NSW Bar Association, Ms Ruth McColl, SC, and the Chief Minister of the Northern Territory, the Hon Denis Burke, MLA are, each in their own way, models of exposition of the arguments. When the Board of Management was arranging the twelfth Conference, the fact that Saturday, 11 November, 2000 would mark the 25th anniversary of the day on which the then Governor-General, the late Sir John Kerr, was forced to do his duty and dismiss the Whitlam Government, entirely escaped its attention. This oversight once rectified, however, it was obvious that the Dinner address that evening should be devoted to a retrospect on what the late Alan Reid’s still gripping book called “the Whitlam venture”. Mr Peter Ryan, whose courage has been tested (and never found wanting) in both war and peace, rose valiantly to the occasion. Since this was the first Conference of the Society to follow the 1999 constitutional referendum on the Republic issue (and the associated one on the proposed new constitutional Preamble), it seemed only appropriate to mark those events by two post-mortem papers from Sir David Smith and Mr Malcolm Mackerras, respectively (as well as a small, but none the less telling, note on media bias during the republic referendum campaign by the Secretary of the Society, Dr Nancy Stone). All those contributions make fascinating reading for anyone interested in either the conduct of that campaign, or its outcome. As this Foreword is written – in Melbourne during the Centenary of Federation celebrations – it is appropriate to reflect upon the fact that, the bitching and moaning of the black arm-band brigade notwithstanding, Australians have much to be proud of (as well as some things to regret) in the history of their highly successful, now century-old, democracy. The papers by Professor Geoffrey Blainey (who tells us, by the way, of the exegesis of that “black arm-band” term) and Professor David Flint convey, each in their own way, a sense of quiet overall pride in that achievement. As such, they brought the twelfth Conference to a fitting close. These papers (including, as noted earlier, the three Appendices) spread a rich and varied menu before the reader. They deserve to be widely read, and widely debated. It is to that objective that this Volume, like its eleven predecessors, is dedicated. Dinner Address The Erosion of National Sovereignty Rt Hon Sir Harry Gibbs, GCMG, AC, KBE Jonathan Swift told the story of an island on which there was a spring whose water, when tasted, drove men mad. The water was so attractive that everyone drank it, except for one philosopher who was too wise to do so. In the end, however, the philosopher could not bear to be the only sane person left on the island and he too drank the water. Swift’s point was that even the wisest person cannot free himself from the delusions of his time. The truth illustrated by that fable seems to me to provide as good an explanation as any for the fact that so many nations have bound themselves to conduct their internal affairs according to rules expressed in terms of broad generality, particularly when the meaning and effect of these rules are to be determined by committees constituted by people of no particular qualifications, none of whom will necessarily be representative of the nation affected by the determination, and some of whom may be chosen from nations whose practices and culture are regarded as inferior or abhorrent. The Covenants and Conventions which have this effect confer rights and impose duties which are entirely domestic in character. So far as Australia is concerned, they impose restrictions on the power of Australian governments to fulfil their functions within Australia. Before the 1960s it was exceptional for a treaty to dictate to a State how it should govern the inhabitants of its territory, except in those cases where the requirements of the treaty were incidental to a matter which was essentially international in character. The justification suggested for making treaties which are concerned entirely with internal affairs is that the treaties concern human rights, and that the protection of human rights is a matter of international concern. General De Gaulle once said that treaties are like girls and roses; they last while they last. That may have been true for the pragmatic French but Australia cannot shrug off its treaty obligations so easily. Even if a Convention is not incorporated into Australian law by statute, the Courts may give effect to it in two ways. They may conclude that the Convention is a statement of international law and that the common law should be developed consistently with it, or they may hold that individuals would have a legitimate expectation that administrative decision makers would act consistently with the Convention. It has not yet been explained how a person who has no knowledge of the existence of a treaty can have an expectation of that kind.