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Samuel Griffith Society Proceedings Vol 6 Proceedings of the Sixth Conference of The Samuel Griffith Society Townhouse Hotel, Carlton 17-19 November, 1995 Copyright 1996 by The Samuel Griffith Society. All rights reserved. Table of Contents Proceedings of the Sixth Conference of The Samuel Griffith Society ____________________1 Foreword John Stone ___________________________________________________________________5 Dinner Address The Future of the Federation Hon Jan Wade, MLA___________________________________________________________7 Introductory Remarks John Stone __________________________________________________________________14 Chapter One A View of the External Affairs Power Rt Hon Sir Garfield Barwick, AK, GCMG _________________________________________17 Chapter Two The External Affairs Power : The State of the Debate S E K Hulme, AM, QC_________________________________________________________20 Chapter Three Duplication and Overlap: An Exercise in Federal Power Des Moore___________________________________________________________________32 Chapter Four The High Court and the States Greg Craven_________________________________________________________________44 Chapter Five The Second Native Title Case Colin Howard________________________________________________________________59 Chapter Six The New Official Religion : The Hindmarsh Island and La Trobe Affairs Austin Gough________________________________________________________________67 Chapter Seven Does Australia Need a Bill of Rights? Rt.Hon. Sir Harry Gibbs, GCMG, AC, KBE _______________________________________74 Chapter Eight Constitutional Mania : A Preliminary Diagnosis Kenneth Minogue ____________________________________________________________82 Chapter Nine Citizen Initiated Referendums : Adjunct or Antithesis of Constitutional Government? Harry Evans _________________________________________________________________89 Chapter Ten Sovereign Citizens, not Subjects Professor Patrick O'Brien______________________________________________________99 Chapter Eleven The Engineers' Case : Seventy Five Years On John Nethercote_____________________________________________________________116 Concluding Remarks Rt Hon Sir Harry Gibbs, GCMG, AC, KBE_______________________________________125 Appendix I Contributors________________________________________________________________127 Published 1996 byThe Samuel Griffith Society P O Box 178, East MelbourneVictoria 3002 Printed by: McPherson's Printing Pty Ltd 5 Dunlop Rd, Mulgrave, Vic 3170 National Library Cataloguing-in-Publication data:Upholding the Australian ConstitutionVolume Six Proceedings of The Samuel Griffith Society ISBN 0 646 26913 5 Foreword John Stone Copyright 1996 by The Samuel Griffith Society. All Rights Reserved After an interval of nearly two and a half years, The Samuel Griffith Society returned for its sixth Conference to Melbourne, the city in which its Inaugural Conference was held in July, 1992. The papers delivered to this Conference, which constitute this Volume in the Society s series Upholding the Australian Constitution, were focused, as always, not on one single theme, but on a number of sub-themes comprising, in the judgment of the Society s Board of Management, some of the major constitutional issues confronting Australia today. Thus, after not scheduling any papers at our previous (Sydney) Conference on what we have generally termed The Aboriginal question (Mabo and all that), we returned to that issue with two papers : first, a characteristically ironical assessment by Dr Colin Howard of the High Court s decision in Western Australia v. Commonwealth (1995); and secondly, an examination by Emeritus Professor Austin Gough of the Hindmarsh Island and La Trobe University affairs, involving allegedly sacred Aboriginal beliefs or archaeological material, and leading him to the conclusion that, in effect, the various Aboriginal Heritage Acts, both State and federal, have, in defiance of section 116 of our Constitution, established an official religion . One of the fundamental flaws in our federal structure as it has evolved has been the imbalance in the financial powers of the Commonwealth and the States, at least as those powers have been interpreted over the years by the High Court. It is thus particularly appropriate that these Proceedings should contain two papers under the general rubric of Federalism and State Finances. The first of them, by Mr Des Moore (himself for 28 years a Commonwealth Treasury official before his resignation in 1987), argues that, with some few notable exceptions, the great majority of Commonwealth specific purpose payments to the States under section 96 have no significant effect upon the final allocation of spending by State governments, and that such financial arrangements primarily constitute an exercise in extending or preserving the Commonwealth s political power. The second paper in this area, by Dr Greg Craven, takes as its starting point the proposition that the High Court of Australia was provided for in our Constitution not merely to interpret that Constitution but also, in doing so, to preserve its federal nature-that is, to protect the States from the unwarranted incursion of federal power. In his powerfully argued and thoroughly depressing assessment of the Court s performance in that regard, Dr Craven concludes that almost from the outset, but particularly since the Engineers Case, it has persistently and, of recent years, even wilfully, failed in that constitutional duty of care. It is commonplace today to hear it said that, whether at federal or State level, our elected representatives are no longer faithfully representing the views of the great majority of those who have elected them. Increasingly, it is said, their performance is characterised by subservience to the minority policies, often of a highly authoritarian nature, of assorted pressure groups. With that persistent (and growing) refrain in mind, the Society at its fourth (Brisbane) Conference introduced onto its agenda for the first time the topic of so-called direct democracy . It pursued that topic in Sydney, and again on this occasion, with two papers from the Clerk of the Senate, Mr Harry Evans, and Professor Patrick O Brien, respectively, each of which, in their very different ways, makes riveting reading. Despite having thus singled out these six papers for specific mention, it would be quite wrong to imply that their six fellows were in any whit their inferiors. On the contrary, it is a tribute to all those who have once more produced them that all twelve papers in this volume are as substantially meaty as they are highly readable by everyone wishing to inform themselves about the debate on constitutional issues in Australia. It is to that debate that this Volume, like its five predecessors, is dedicated. Dinner Address The Future of the Federation Hon Jan Wade, MLA Copyright 1996 by The Samuel Griffith Society. All Rights Reserved If successive Commonwealth Governments had not spent the last 90 or so years increasing their power at the expense of the States, substantially imbalancing the Australian federation, we would not be here tonight. The energy and intellect directed to The Samuel Griffith Society would have sought other outlets. That push for power has continued inexorably, whether by constitutional means or otherwise. The Samuel Griffith Society grew out of the resultant concern and a recognition of the need to redress the federal balance in favour of the States. So we are here tonight. I agree whole-heartedly with the aims of the Society and have been a member from the beginning. Tonight I wish to examine the proposition contained in the Statement of Purpose of the Society: "The Australian people have voted many times against proposed amendments. We must presume that they regard the Constitution, on the whole, with approval." In terms of achieving the aims of the Society this proposition is pivotal, but what it implies is not, in my view, as obvious as we might think. Nevertheless, while the proposition itself needs further examination, the results of that examination will not detract from the purposes of the society. Indeed, they may well enhance the effectiveness of those purposes. It may, of course, be that no general inference at all can be drawn from the long record of failure of referenda to alter the Constitution. Perhaps the electorate simply did not like the particular propositions put to them, but that is not the point I wish to make. The point I wish to make is that the proposition which I have quoted has to be seen in a particular context. That context is the present day, which means contemporary perceptions and attitudes. In that perspective, it seems to me that in general terms, Australians are not too disturbed by the steady increase in power of the Commonwealth Government. It follows that the aims of the Society and, indeed, of the States, must be promoted in that context. There can be no doubt that the emphasis in the 19th Century Convention debates was on a federation with a central government which would take over responsibility for defence, customs, external affairs (as then understood) and communications, leaving the bulk of governmental responsibilities to the States. The dominant partners in the federation were to be the States, not the Commonwealth. The Founding Fathers would be astonished by the present distribution of powers and the overlapping responsibilities between the Commonwealth and the States. No doubt the great majority of those who voted for federation would be similarly astonished.
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