Proceedings of The Samuel Griffith Society Inaugural Conference Hillton-on-the-Park, Melbourne; 24 - 26 July 1992 Copyright 1992 by The Samuel Griffith Society. All rights reserved. Table of Contents Proceedings of The Samuel Griffith Society ________________________________________ 1 Foreword John Stone___________________________________________________________________ 4 Launching Address Re-Writing the Constitution Sir Harry Gibbs, GCMG, AC, KBE _______________________________________________ 5 Inaugural Address Right According to Law The Hon Peter Connolly, CBE, QC ______________________________________________ 11 Introductory Remarks John Stone__________________________________________________________________ 15 Chapter One The Australian Constitution: A Living Document H M Morgan ________________________________________________________________ 17 Chapter Two Constitutions and The Constitution S.E.K. Hulme________________________________________________________________ 26 Chapter Three Constitutional Reform: The Tortoise or the Hare? Greg Craven ________________________________________________________________ 39 Chapter Four Keeping Government at Bay: The Case for a Bill of Rights Frank Devine________________________________________________________________ 46 Chapter Five Financial Centralisation: The Lion in the Path David Chessell _______________________________________________________________ 55 Chapter Six The High Court - The Centralist Tendency L J M Cooray________________________________________________________________ 62 Chapter Seven When External Means Internal Dr Colin Howard_____________________________________________________________ 77 Chapter Eight "Some Thoughts on the Monarchy/Republic Debate" Sir David Smith, KCVO, AO____________________________________________________ 85 Chapter Nine The Head of State in Australia John Paul __________________________________________________________________ 93 Chapter Ten Fantasies and Furphies: The Australian Republican Agenda Bruce A Knox ______________________________________________________________ 106 Chapter Eleven Old Colonisations and Modern Discontents: Legacies and Concerns Alan Frost _________________________________________________________________ 116 Appendix I Contributors _______________________________________________________________ 127 Appendix II Invitation letter of 5 May, 1992 ________________________________________________ 130 Appendix III The Samuel Griffith Society ___________________________________________________ 132 Foreword John Stone Copyright 1992 by The Samuel Griffith Society. All rights reserved In the letter originally inviting people to become members of The Samuel Griffith Society and indicating the intention of its Board to convene an Inaugural Conference in Melbourne on 24-26 July, 1992 (see Appendix II), some particular reasons for this initiative were noted. First, there now seems to be afoot a campaign to have the view accepted that our Constitution is "badly in need of reform". No very compelling evidence for this view is generally advanced, other than the intellectually shoddy one that we are nearing the year 2000. As to that, readers should see the delectable comments in the paper herein by S.E.K. Hulme, QC. Secondly, and despite the earnest disclaimers of most of the principal actors, there appears little doubt that this campaign is coming from the same centralist quarter which, having been defeated in the debates of the 1890's, has worked throughout this Century to undo the original Federal compact, and whose efforts in that regard have been redoubled over the past twenty years. The chief purpose of The Samuel Griffith Society is, therefore, to ensure that, if any changes are to be made in our Constitution, they should only occur after the widest range of thought and opinion has been canvassed. In that process it will be the particular role of the Society to question and, as necessary, oppose the further expansion of the power of Canberra. Already in Australia that expansion has gone very far, to the point where it threatens a serious breakdown of trust in government as a whole. One of the most serious aspects of this steady distortion of the original Federal compact is the process by which it has chiefly come about. Not the least of the duties of The Samuel Griffith Society will therefore be to examine this process. In particular, the role in it of a now centralist and expansionist High Court needs to be placed firmly under the microscope of public opinion. Some of the papers in these Proceedings begin that task; but there is much still to do. The Inaugural Conference of the Society, whose proceedings are now recorded in what follows, comprised three major addresses and ten papers delivered on a series of themes. Inevitably, not all the relevant issues could even be touched upon; and even those which were, will certainly repay re- visiting. I do nevertheless express the view that these papers are of such a generally high order, and without exception generated such enthusiasm among those who heard them last July, that they will come to be seen as having had a seminal effect upon the debate which now lies before us. It is to that objective that this volume is dedicated. Launching Address Re-Writing the Constitution Sir Harry Gibbs, GCMG, AC, KBE Copyright 1992 by The Samuel Griffith Society. All rights reserved When, in the last decade of the nineteenth century, representatives of the Australian colonies, among the most notable of whom was Sir Samuel Griffith, met for the purpose of considering a scheme for a Federal Constitution, they were actuated by what appeared to them to be practical needs and inspired by an ideal. The principal needs which they saw were to provide a common framework for defence and to establish what would now be called a common market for the purposes of trade. The ideal was that the Australian continent should be occupied by only one nation. When, today, it is suggested that Australia should have a new Constitution to mark the commencement of the new century, it is difficult to discern any practical need or any ideal which would provide a sufficient motive for entirely abandoning a Constitution which has proved in practice to be extremely flexible, and for re- moulding our constitutional principles in a way not yet made clear. The argument that the Constitution was defective because it was drawn in horse and buggy days was used unsuccessfully by Dr Evatt more than forty years ago, and the fact that the Constitution is approaching its centenary at the same time as the twentieth century is drawing near its close provides in itself no reason why the Constitution should be rewritten. The Constitution of the United States, on which ours was modelled, was framed in 1787 and in that country no politician would dare to suggest that its Constitution should be consigned to the scrap heap. Of course, no legal instrument is likely to be perfect and it is possible to suggest changes that might beneficially be made to our Constitution, although it is by no means easy to make proposals for substantial change which would meet with general agreement. However, when it is suggested that we should adopt a new Constitution, that implies that it is thought that the Constitution needs not mere amendment, but radical change. It may therefore be instructive to examine what are the essential features of our Constitution, since it seems natural to assume that the protagonists of a new Constitution wish to do away with, or at least to modify, some of those features. The essential characteristics of our Constitution seem to me to be these. There is a federal union under the Crown, that is, federalism is of the essence of the Constitution, and it is intended that Australia should be a Constitutional Monarchy. The Parliament is comprised of a bicameral legislature, democratically elected. It is implicit that there should be a system of responsible government - the ministry should be members of, and responsible to, the legislature, and there is no rigid separation of legislative and executive powers. The independence of the judiciary is intended to be secured. There is no general bill of rights. The Commonwealth created with these attributes is intended, as the Constitution Act declares, to be "indissoluble"; and the Constitution itself is made difficult to amend. It is not difficult to guess which of these features will be sought to be altered if a new Constitution is to be enacted; indeed, in some instances guesswork is unnecessary, for some of the eminent persons who say that we need a new Constitution have made their wishes clear. Let me mention first one question that will be among the most contentious of the proposals for change, and in my opinion the most potentially dangerous, threatening as it does the very basis of the ideal of one nation for one continent. That is the proposal that the Constitution should provide for a treaty, or some other form of reconciliation, with the Aboriginal people and the people of the Torres Strait Islands, and should recognise them as the indigenous peoples of Australia (which of course they are) and should secure for them special constitutional rights. We may admit that in the past the Aboriginal people have been the victims of crimes and blunders and that the condition of many of them (but by no means all) is today lamentable. We should certainly recognise that the situation of many of the Aboriginal people means that they have special needs which our society should meet. It does not