DOCSLIB.ORG

What Is Past, Or Passing, Or to Come ___ 10F What Is Past, Or Passing, Or to Come ______

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
What Is Past, Or Passing, Or to Come ___ 10F What Is Past, Or Passing, Or to Come ______ 1030 What is Past, or Passing, or to Come ____ 10f What is Past, or Passing, or to Come ______ ~ .... tcllbyby the HOI!HOIl Justice Michael Kirby A.C .. C.M.G., President afthealthe CaUTIo!Caurlo! Appeal afat the 1993 BenchBelich & Bar ',lrlUlerat which he was the guest afhonour.o/honour. ¥. ,!i}fi "Once 0111011I of nature I shall never raketake ~ Mybodi1yjormfrom~f bodilyfarm/rom anyany. natural (hing,rh~lIg. Asprey kept, hanging on the wall of his chambers. behind the B ~f slIcllslIch ajormalarm as Grecian goldsmithsgoldsnllfhs make chair at his desk. the famous cartoon of FE Smith. Next to that dfhammered gold and gold enamelling cartoon was hanging a mirror. Looking in the mirror"it was To keep a drowsy Emperor awake; natural to see oneself as a reflection of the great English Or set upon a golden bOllghbough to sing counsel. "[ To lords and ladies of ByzantiumByz.antium The President of the Incorporated Law Institute (as it O/wlw{OfwiwI is past.past, or passing. or to come." was called) was NormanNonnan Cowper, later to be knighted. Reg WBW B Yeats Downing was the State Auomey~General. The most senior silks were HVH V Evatt himself, his brother CliveCJive and CAC A : ....UTI< PAST Hardwick. Amongst the senior juniors were those memorable figures Wilf Sheppard, Walter Gee, Bertie Wright and On an occasion such as this, and in this common room.room, Humphrey Henchman - the lastofwhom 1I saw, evergreen, in 'ldsinevitableitisineviw,blethatthat an affliction of nostalgia will take the mind this place but a month ago. back through lheme lost years. The spirits of these advocates are in this room with us It is thirty-five years since my first encounter with our tonight. They lived and laughed here,justas we do now. They ;~::~,~:::,{profession... ,~Itl:w:,a~;s:It was :i~n;in 195819.58 that I began m~my articles of cle~kship.clerkship. told the tales of their triumphs. They were ribbed - notnOl always ",.'TheQueen was in the sixthSixth yearofherrclgn.yearofherreign. Mr MenZIesMenzies was gently - about their embarrassing moments. They were mighty ": !he Prime Minister. Sir Arthur Fadden figures of my impressionable youth. I;::lhadjustretirectashis Deputy.. In the wake ".:-Ofthe successful struggIe against the anti­ At that time there were 430 members of 'c'communism referendum, the Democratic the Bar Association. Of them 51 enjoyed :/.Labor Party had been formed. It helped thc-commthe-comm ission as Her Majesty's Counsel. ~i;~~snatchvictoryfrom the AUStralian Labor TIle constitution and the law looked very ;~:tPartyinthe Federal Election in November sure and stable indeed. -~:;~~,;;~th;";~~~~I~, that year. SirGarfield Barwick was elected Member for Parramatta. As a tribute to Sixteen years passed before my first his unique distinction as a barrister.bamster, he judicial appointment was announced. This went straight to the office of Federal occurred in December 1974 when I was Attorney-General. appointed a Deputy President of the The High Court of Australia Australian Conciliation and Arbitration comprised Chief Justice Dixon and Commission. Alas.Alas, I must acknowledge Justices McTiernan, Fullagar,Fullagar. Kitto.Kitto, that this is now nearly 20 years in the past. Taylor, Menzies and Windeyer. In the The Governor~GeneralshipGovernor-Generalship had just ' ...•Supreme "'"'''' Court, Sir Kenneth Street was changed from Sir Paul Hasluck to Sir nearing theend ofhis time as Chief Justice. John KelT.Kerr. The Governor of this State Within two years he would retire to be was Sir Roden Cutler Vc. Gough replaced by the eXhaustedexhausted Evatt. Sir Whitlam was Prime Minister. Of the William Owen was the Senior Puisne High Court.Court, BarwickBanvick was at the height of Judge.JUdge. There were twenty-one judges of the Supreme Court his powers as Chief Justice. The latest member appointed to at that time. The youngest of them were the redoubtable the Court was Anthony Mason. There was an empty seat to be Kenneth Manning. the bucolic "Barney" Collins, that fined.filled. Shortly.Shortly, it was to be occupied by Justice Jacobs, the gentleman Rex Chambers and the multi~talentedmulti-talented Rae Else·Else­ third President of the Court of Appeal. That court had been Mitchell. established with sharp recriminations and much bitterness in JudgeJUdge Lloyd was the ChairmanChainnan of the District Court 1965. Judges.JUdges. TheaTheo Conybeare presided in the Workers' In the Supreme Court, Sir John Kerr was soon to be Compensation Commission. succeeded by Sir Laurence Street - third Chief Justice of that Atthe head of the Bar Association was Bruce Macfarlan name. There were 37 judges. The latest appointments to the QC. His able lieutenant was Nigel Bowen QC. The leaders of Court were Ian Sheppard, Hal Wootten and that fine teacherof titeBarweretheBarwere towering figures of my youth - Kerrigan.Kerrigan, Meares many banisters.banisters, Harold Glass. and Asprey. AAF F Mason was a younger member of the Bar Jim Staunton, still in office. had just begun his long and COuncil and the newest recruit to it was DAD A Yeldham. distinguished leadership of the District Court.Coun. Chris We have it on Chief Justice Mason's authority that Ken Langsworth was Chainnan of the Compensation Commission. Of all the judges who were serving at that time.time, day by busy day, nine only remain in judicial office today, together SeeSec AAF F Mason. unpUblished address 10to the District Court with myself. They arcare Chief Ju.-;ticeJU.-;tice Mason of the High Court: Jutlges·Jutlges' Conference. I May 1992.4. Justice Sheppard now ufthe feller:!!feuer:!l Court Justices Evatt ami NSW Bar ASSllCi:llion Bar New~ 19\}319\)3 EJitinn - 31 d~I~;:I~e:~;;w;ii:~th,~;m,:e,n(then, with me, in the Arbitration Commission) now to assure me of heartfelt sympathy in my hour of need. I did ,;;,~'vcIY President of the Law Reform Commission and not know what they were talking about. Surely Justice ~ofthcHigll.' ~fthcHigh Court. Dennis Mahoney, now mycolJeague Meagher's observations were merely the public exchange of '~~ourt of Appeal. John Cahill still sits on the Industrial pleasantries between colleagues sharing, with the protcssion. minission• today as Vice-PresidentVice-~re~ident Judges Staunton and their inner thoughts.thoughts, , Bell still grace the DistrictDlstnct Court. Frank McGrath, For my part. 1 knew that there was no malice in Justice "teaene:r.:( teacher. presides in the Compensation Court. Nine Meagher's words. My reading is wide enough toenable me to arc left. The restrestor of our judicial company at that time have recognise a true personal denunciation when I see one. :d on _~ such is the cycle of the law. Take these words of Justice Rehnquist, joinedjOined by Chief In the Bar Association in 1974\974 Tom Hughes QC was Justice Burger in the Supreme Court of the United States in ",~I~;b~~t~in~~thatnt and in that capacity welcomed me to judicial office United Steelworkers of America v Webber.Webber . "It: rbitration Commission. It was in that speech that he ..... Bya tour de force reminiscent not ofjurists suchSitch as :ly claimed that I was well known for my "urbanity", Hale.Hale, Holmes and Hughes bittbllt of escape artists Sitchsuch as ,rthand reporter, who rarely erred, still swears (as she Houdini,Houdini. the Court eludes dearclear statutory language, ... :d) that he said "vanity". Tom Hughes's deputies were legislative history and uniformulliform precedent ..."."" 2:::!~';cGregor and Phillip Powell. The latest members of Council were Roger Court, Barry Toomey and myself. Or take Justice Rehnquist, again joined by Chief Justice ~ sidcnt of the Law Society was Alan Loxton. The most Burger but also by Justice O'Connor in Florida v Royer': I(silks of the time were still Clive Evatt and Hardwick. ,most",cc"tlymost recently appointed silk was Oneone M H McHugh QC. "The plurality's meandering opinion containscOlltaills inill it a do you remember Sid Webb? Sir Jack Cassidy of little something for everyone ... Indeed. In both manner agne chano? The redoubtable Jack Smyth? And that and tone,tone. the opinion brinss 10to mind the old nurserylIursery ised and graceful man, Marcel Pile? The senior juniors rhyme: 'The king ofFrance - with 40,00040.000 men -marched :dcd Wilf Sheppard. And Harry May and Ivan Roberts uplip the hillhill-- and thenIhell marched back again'. The opinion also there. Their spirits too are in this room with us nonetheless,nonetheless. in my \'iew,\'iew. betrays a mInd-setmilld-set morcmore IIseflilIIscflll hl ·They are here to remind us of our brief journey to those who officiate at sku!ffeboardskufffeboard gWlIcs.gWlICS, primarily gh ,hi"this ",'of,ess:;onprofession which gives so much and to which we concerned with which parricularparriclilar squaresqllare the disc has also make returns. landed on,on. thanthall to those who arcare JeckingJeding to10 administer e," When I first look up judicial appoimmentappnimment in 1974 there a system ofjustice ... " ~l;Were·~,"5!IOrnennb"rsofthe590 members ofthe Bar of New SOUlh Wales_Wales. Of them, ~~were'''NCn, ,<'JeensQueen's Counsel. Today there are 1700 members of Within weeks of writing thc"ethe!';c words, Justice Rehnquist ~r~,Bar and 200 silks. Inevitably, with the expansion of the was elevated to become his nation's Chief Justice. His strong ~lar, there have been changes. But many of the traditions of words were rewarded withwith:la marvellous judicial crown. When "l~':~I~~~)n(1U~sourage. honour randand c,oOl,ra,jc.·;hcomradeship il) endure.",d,,,e. akin to those enjoyed I1 measure Justice Meagher'sMeaghcr's worus against such vituperation. -I li~soldiers under fire. May it continue to be so. I realise once again how sweet is my brother's disposition. I also know Justice Meagher's writing well enough to be ~~RPASSING able to recognise, without hesitation, when he is straying from .~4· his natural disposition into a few gently chosen words of :;:!~'~f; Ofcourse, in the daily life of the law there are inevitable criticism.criticism, That was not so in Videski.Videski, as I hastened to reassure :;: ,::;-.C'risesthatblowup.up.
Load more

Recommended publications
  • The Sydney College
    The Sydney College 1 3 -18 0 17 August 1992 Key to Abbreviations BC Born Colony F Father CF Came Free PCF Parents Came Free FCF Father Came Free MCF Mother Came Free GS Government Servant FGS Father Government Servant MGS Mother Government Servant TKS The King's School References: ADB Australian Dictionary ofBiography Mw Pioneer Families of Australia (5th ed), by P.C. Mowle G and S, A Biographical Register 1788-1939 (2 volumes), by Gibbney and Smith Religion: E ChUrch of England P Presbyterian W Wesleyan C Congregationalist RC Roman Catholic B Baptist J Jewish * in front of the accession number indicates the boy was also at The King's School * in front of a name indicates sponsored by that person. Explanatory Guide Through the kindness of Mrs lly Benedek, Archivist of Sydney Grammar School, a photostat of the roll of the Sydney College 1835-1850 was supplied to the Archivist of The King's School and has been placed on computer at The King's School Parramatta. The Sydney College Roll sets out bare details of enrolments: viz 1 Allen George 19/1/1835-3/1841 11 George Allen Toxteth Park George Allen 2 Bell Joshua 19/1/1835-8/1836 8 Thomas Bell Carters Bar. Removed to Parramatta Thomas Barker Subsequent research at The King's School involving the use of the New South Wales Births, Deaths and Marriages 1788-1856 has allowed some recording of exact dates of birth, exact dates of parents' marriage and on a few entries the candidate's marriage. The maiden names of many mothers have also been located.
    [Show full text]
  • Process, but Also Assumes a Role in the Administration of the Court
    Mason process, but also assumes a role in the administration of the Court. Frank Jones Mason, Anthony Frank (b 21 April 1925; Justice 1972–87; Chief Justice 1987–95) was a member of the High Court for 23 years and is regarded by many as one of Australia’s great- est judges, as important and influential as Dixon.The ninth Chief Justice,he presided over a period ofsignificant change in the Australian legal system, his eight years as Chief Justice having been described as among the most exciting and important in the Court’s history. Mason grew up in Sydney, where he attended Sydney Grammar School. His father was a surveyor who urged him to follow in his footsteps; however, Mason preferred to follow in the footsteps of his uncle, a prominent Sydney KC. After serving with the RAAF as a flying officer from 1944 to 1945, he enrolled at the University of Sydney, graduating with first-class honours in both law and arts. Mason was then articled with Clayton Utz & Co in Sydney, where he met his wife Patricia, with whom he has two sons. He also served as an associate to Justice David Roper of the Supreme Court of NSW. He moved to the Sydney Bar in 1951, where he was an unqualified success, becoming one of Barwick’s favourite junior counsel. Mason’s practice was primarily in equity and commercial law,but he also took on a number ofconstitutional and appellate cases. After only three years at the Bar, he appeared before the High Court in R v Davison (1954), in which he successfully persuaded the Bench that certain sections of the Bankruptcy Act 1924 (Cth) invalidly purported to confer Anthony Mason, Justice 1972–87, Chief Justice 1987–95 in judicial power upon a registrar of the Bankruptcy Court.
    [Show full text]
  • The New South Wales Legal Profession in 1917
    Battles Overseas and At Home: The New South Wales Legal Profession in 1917. The Symposium 24 March 2012 Tony Cunneen [email protected] Comments welcome Synopsis: This paper focuses on the events of 1917 and is a part of a series on Lawyers in the First World War. Other papers in the series cover lawyers on Gallipoli and in 1916 as well as related topics may be accessed on the website of the Francis Forbes Society for Australian Legal History on http://www.forbessociety.org.au/ or by contacting the author directly at the above email address. Introduction: The activities of lawyers in the first decades of the twentieth century in general and the First World War in particular have received scant attention. The need to examine this area lies in lawyers’ importance in defining the early forms of Australian life after Federation and their leadership of many war related activities. The period of 1914-1918 was a time when the country was determining just how it would operate as an independent Federation yet also a full member of the British Empire – which was increasingly being seen as an international community of nations. An investigation of lawyers’ activities during the war challenges any stereotypes of a remote, isolated profession 2 and reveals a vibrant, human community steeped in shared values of service and cooperation and determined to play an active part in shaping the nation. war service, whether on the battlefield or the Home Front was seen as an essential part of that process. The development of the protectorate of Papua was part of that process.
    [Show full text]
  • Who's That with Abrahams
    barTHE JOURNAL OF THE NSWnews BAR ASSOCIATION | SUMMER 2008/09 Who’s that with Abrahams KC? Rediscovering Rhetoric Justice Richard O’Connor rediscovered Bullfry in Shanghai | CONTENTS | 2 President’s column 6 Editor’s note 7 Letters to the editor 8 Opinion Access to court information The costs circus 12 Recent developments 24 Features 75 Legal history The Hon Justice Foster The criminal jurisdiction of the Federal The Kyeema air disaster The Hon Justice Macfarlan Court NSW Law Almanacs online The Court of Bosnia and Herzegovina The Hon Justice Ward Saving St James Church 40 Addresses His Honour Judge Michael King SC Justice Richard Edward O’Connor Rediscovering Rhetoric 104 Personalia The current state of the profession His Honour Judge Storkey VC 106 Obituaries Refl ections on the Federal Court 90 Crossword by Rapunzel Matthew Bracks 55 Practice 91 Retirements 107 Book reviews The Keble Advocacy Course 95 Appointments 113 Muse Before the duty judge in Equity Chief Justice French Calderbank offers The Hon Justice Nye Perram Bullfry in Shanghai Appearing in the Commercial List The Hon Justice Jagot 115 Bar sports barTHE JOURNAL OF THE NSWnews BAR ASSOCIATION | SUMMER 2008-09 Bar News Editorial Committee Cover the New South Wales Bar Andrew Bell SC (editor) Leonard Abrahams KC and Clark Gable. Association. Keith Chapple SC Photo: Courtesy of Anthony Abrahams. Contributions are welcome and Gregory Nell SC should be addressed to the editor, Design and production Arthur Moses SC Andrew Bell SC Jeremy Stoljar SC Weavers Design Group Eleventh Floor Chris O’Donnell www.weavers.com.au Wentworth Chambers Duncan Graham Carol Webster Advertising 180 Phillip Street, Richard Beasley To advertise in Bar News visit Sydney 2000.
    [Show full text]
  • Seeing Visions and Dreaming Dreams Judicial Conference of Australia
    Seeing Visions and Dreaming Dreams Judicial Conference of Australia Colloquium Chief Justice Robert French AC 7 October 2016, Canberra Thank you for inviting me to deliver the opening address at this Colloquium. It is the first and last time I will do so as Chief Justice. The soft pink tones of the constitutional sunset are deepening and the dusk of impending judicial irrelevance is advancing upon me. In a few weeks' time, on 25 November, it will have been thirty years to the day since I was commissioned as a Judge of the Federal Court of Australia. The great Australian legal figures who sat on the Bench at my official welcome on 10 December 1986 have all gone from our midst — Sir Ronald Wilson, John Toohey, Sir Nigel Bowen and Sir Francis Burt. Two of my articled clerks from the 1970s are now on the Supreme Court of Western Australia. One of them has recently been appointed President of the Court of Appeal. They say you know you are getting old when policemen start looking young — a fortiori when the President of a Court of Appeal looks to you as though he has just emerged from Law School. The same trick of perspective leads me to see the Judicial Conference of Australia ('JCA') as a relatively recent innovation. Six years into my judicial career, in 1992, I attended a Supreme and Federal Courts Judges' Conference at which Justices Richard McGarvie and Ian Sheppard were talking about the establishment of a body to represent the common interests and concerns of judges, to defend the judiciary as an institution and, where appropriate, to defend individual judges who were the target of unfair and unwarranted criticisms.
    [Show full text]
  • The High Court and the Parliament Partners in Law-Making Or Hostile Combatants?*
    The High Court and the Parliament Partners in law-making or hostile combatants?* Michael Coper The question of when a human life begins poses definitional and philosophical puzzles that are as familiar as they are unanswerable. It might surprise you to know that the question of when the High Court of Australia came into existence raises some similar puzzles,1 though they are by contrast generally unfamiliar and not quite so difficult to answer. Interestingly, the High Court tangled with this issue in its very first case, a case called Hannah v Dalgarno,2 argued—by Wise3 on one side and Sly4 on the other—on 6 and 10 November 1903, and decided the next day on a date that now positively reverberates with constitutional significance, 11 November.5 * This paper was presented as a lecture in the Department of the Senate Occasional Lecture Series at Parliament House on 19 September 2003. I am indebted to my colleagues Fiona Wheeler and John Seymour for their comments on an earlier draft. 1 See Tony Blackshield and Francesca Dominello, ‘Constitutional basis of Court’ in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia, South Melbourne, Vic., Oxford University Press, 2001 (hereafter ‘The Oxford Companion’): 136. 2 (1903) 1 CLR 1; Francesca Dominello, ‘Hannah v Dalgarno’ in The Oxford Companion: 316. 3 Bernhard Ringrose Wise (1858–1916) was the Attorney-General for NSW and had been a framer of the Australian Constitution. 4 Richard Sly (1849–1929) was one of three lawyer brothers (including George, a founder of the firm of Sly and Russell), who all had doctorates in law.
    [Show full text]
  • Former CJ Spigelman Appointed to HK Court of Final Appeal FINAL
    Issued 9 April 2013 Former NSW Chief Justice appointed to Hong Kong Court of Final Appeal Former NSW Chief Justice James Spigelman has been appointed to the Hong Kong Court of Final Appeal. The appointment was announced yesterday in Hong Kong, jointly by the court’s Chief Justice, Mr Geoffrey Ma Tao-li, and the Chief Executive of Hong Kong, Mr C Y Leung. The Hong Kong Court of Final Appeal is the highest appellate court in the Hong Kong Special Administrative Region. Established in 1997, it has the power of final adjudication with respect to the civil and criminal laws of Hong Kong. It comprises permanent Hong Kong judges, non-permanent Hong Kong judges and non- permanent common law judges from other jurisdictions. The Honourable Mr Justice Spigelman has been appointed a non-permanent judge from another common law jurisdiction. He will sit on appeals for a period of time each 12 to 18 months. He joins other distinguished Australian jurists previously appointed including three former Chief Justices of Australia, Sir Anthony Mason, Sir Gerard Brennan and Murray Gleeson, and, also announced yesterday, Justice William Gummow. The Honourable Mr Justice Spigelman was appointed NSW Chief Justice in May 1998 and served until May 2011. He is currently Chair of the Australian Broadcasting Corporation (since April 2012). NSW Chief Justice Tom Bathurst congratulated his predecessor on this most recent appointment. "In addition to his significant contribution to the law in this state and country, Mr Spigelman was responsible for engaging with our legal colleagues throughout the Asian region in a way that had never been done before," Chief Justice Bathurst said.
    [Show full text]
  • 12 Chief Justice Gleeson and the Constitution
    12 Chief Justice Gleeson and the Constitution Leslie Zines* Strict and complete legalism Murray Gleeson became Chief Justice of the High Court on 22 May 1998. As a barrister he had appeared before the High Court in constitutional cases on many occasions; but as Chief Justice of New South Wales for 10 years immediately preceding his High Court appointment he had little to do with such issues. During his first two or three years on the High Court he gave the impression of a judge who desired to swing the Court in a different direction, that is away from the methods and attitudes that characterised it in the previous 15 years or so. Whereas during the earlier period, particularly under the Chief Justice- ship of Sir Anthony Mason, a number of judges emphasised such matters as the interplay of policies, values, doctrine and principle, Gleeson CJ in several addresses to the Bar and the public spoke in favour of legalism, and not merely legalism, but ‘strict and complete legalism’ – the phrase made famous by Sir Owen Dixon when he used it during his swearing-in speech as Chief Justice in 1952. This can be contrasted with the lecture by Sir Anthony Mason at the University of Virginia in 1986, a year before he became Chief Justice, when he declared that the Court was moving away from the doctrine of legalism ‘towards a more policy oriented constitutional interpretation’,1 describing the new approach as ‘a species of legal realism’. He went on to say that the danger is that strict and complete legalism ‘will be a cloak for undisclosed and unidentified policy values’.
    [Show full text]
  • Opening of Sir Anthony Mason Chambers CHAMBERS
    CHAMBERS Opening of Sir Anthony Mason Chambers By Elpi Chrysostomou The application of the harmonising art of history. As the ninth chief justice of creatures physical and spiritual which feng shui to barristers’ chambers and life the High Court and a member of that inhabit it. Native title, it seemed, had after the High Court were among other court for a total of 23 years, Sir Anthony survived like buried water in the bore of stories recounted recently by Sir Anthony presided during a number of landmark jurisprudence. It was the Sir Anthony Mason at the opening of the chambers cases including The Tasmanian Dam Case High Court that revealed it. named in his honour. (1983) 158 CLR 1, Teoh’s Case (1995) It has been said that Sir Anthony is 183 CLR 273, Dietrich v The Queen Sir Anthony Mason AC KBE GMB, known, not only for his keen intellect, (1992) 177 CLR 292, Cole v Whitfield former High Court chief justice, but also his wit. His persona in court has (1988) 165 CLR 360, Burnie Port accompanied by his wife, Lady Patricia, been described in the following words: Authority (1994) 179 CLR 520, Plenty were in Sydney on 25 July 2014 to v Dillon (1991) 171 CLR 635, and of He said relatively little but was very good formally open Sir Anthony Mason course Mabo (1992) 175 CLR 1. at progressing the business of argument. Chambers, Sydney. The combination of a commanding In that connection, British aphorist, Looking something akin to a busy Equity intelligence, vast experience, and an Geoffrey Madan, suggested that the List in Court 11E, it was standing room ability to convey by facial expression the destruction of ideas is much like the only as the occasion was attended by fact that the shelf-life of an argument had setting of a beautiful sunset.
    [Show full text]
  • Essays on Torts(Sydney,Law Book Company, 1989), P 98
    LAW AND ECONOMICS MONASH LAW SCHOOL FOUNDATION LECTURE 25th MARCH 1992 THE HONOURABLE SIR ANTHONY MASON, AC, KBE CHIEF JUSTICE OF AUSTRALIA Economics has become the dominant theme in the public affairs of this coun- try. In an era of recession, economic considerations are the centrepiece of current political debate. The fortunes of the major political parties are said to hinge upon the success or acceptance of their economic policies. The media bombard us daily with the latest economic statistics and commentary on the significance of those statistics. The comparative advantages and detriments of competing economic philosophies are expounded at length in the news- papers and the electronic media. Economic rationalism which, we have been told, alone will save us from sinking into the abyss, is now challenged by the adherents of selective protection. The free tradelprotection debate which flourished at the time of Federation shows signs of coming to the fore once again. That this should be so is not surprising. Technological advance has empha- sized the interdependence of national economies and the fact that our national economy is but one piece in a worldwide mosaic. Ability to compete and efficiency are essential to economic well-being. In the light of these developments, one might have expected that by now economics would have had a marked impact upon the law and our legal sys- tem. Because both law and economics are disciplines concerned with the techniques and methodology of decision-making,economics has a capacity to contribute to legal decision-making, including the judicial process.' The ex- pectation that economics would make a significant contribution has been reinforced by the fact that law and economics and law and commerce have been courses studied in tandem by Australian law students for upwards of several decades now.
    [Show full text]
  • What Makes Originalism Original? a Comparative Analysis of Originalism and Its Role in Commerce Clause Jurisprudence in the United States and Australia
    UCLA UCLA Pacific Basin Law Journal Title What Makes Originalism Original? A Comparative Analysis of Originalism and Its Role in Commerce Clause Jurisprudence in the United States and Australia Permalink https://escholarship.org/uc/item/60j4408j Journal UCLA Pacific Basin Law Journal, 23(1) Author Perlin, Adam A. Publication Date 2005 DOI 10.5070/P8231022179 Peer reviewed eScholarship.org Powered by the California Digital Library University of California COMMENT WHAT MAKES ORIGINALISM ORIGINAL?: A COMPARATIVE ANALYSIS OF ORIGINALISM AND ITS ROLE IN COMMERCE CLAUSE JURISPRUDENCE IN THE UNITED STATES AND AUSTRALIA Adam A. Perlin* INTRODUCTION Originalism reflects humankind's desire to connect with the past and to understand that which came before us. But history is not a single concrete idea. Instead, history is something specific and unique to every individual and inevitably plays different roles in different people's lives. For some, history may be a pre- diction, offering lessons from which we must learn if we are to avoid the same mistakes as our predecessors. For others, history serves as a tangible link between the now and the then, dangling before us the tantalizing prospect of understanding how it is we arrived at where we are today. Originalism, like the unique histories it reflects, will also mean different things to different people, or perhaps put more appropriately, to different national governing bodies. Each country, with its own past to discover and its own historical evolution, will struggle not only with the decision of whether his- torical analysis has any role in constitutional interpretation, but equally important, what that role should be and what form that role will take.
    [Show full text]
  • The Constitutional Conventions and Constitutional Change: Making Sense of Multiple Intentions
    Harry Hobbs and Andrew Trotter* THE CONSTITUTIONAL CONVENTIONS AND CONSTITUTIONAL CHANGE: MAKING SENSE OF MULTIPLE INTENTIONS ABSTRACT The delegates to the 1890s Constitutional Conventions were well aware that the amendment mechanism is the ‘most important part of a Cons­ titution’, for on it ‘depends the question as to whether the state shall develop with peaceful continuity or shall suffer alternations of stagnation, retrogression, and revolution’.1 However, with only 8 of 44 proposed amendments passed in the 116 years since Federation, many commen­ tators have questioned whether the compromises struck by the delegates are working as intended, and others have offered proposals to amend the amending provision. This paper adds to this literature by examining in detail the evolution of s 128 of the Constitution — both during the drafting and beyond. This analysis illustrates that s 128 is caught between three competing ideologies: representative and respons ible government, popular democracy, and federalism. Understanding these multiple intentions and the delicate compromises struck by the delegates reveals the origins of s 128, facilitates a broader understanding of colonial politics and federation history, and is relevant to understanding the history of referenda as well as considerations for the section’s reform. I INTRODUCTION ver the last several years, three major issues confronting Australia’s public law framework and a fourth significant issue concerning Australia’s commitment Oto liberalism and equality have been debated, but at an institutional level progress in all four has been blocked. The constitutionality of federal grants to local government remains unresolved, momentum for Indigenous recognition in the Constitution ebbs and flows, and the prospects for marriage equality and an * Harry Hobbs is a PhD candidate at the University of New South Wales Faculty of Law, Lionel Murphy postgraduate scholar, and recipient of the Sir Anthony Mason PhD Award in Public Law.
    [Show full text]