Upholding the Australian Constitution Volume Twenty-eight Proceedings of the Twenty-eighth Conference of The Samuel Griffith Society Stamford Plaza, Adelaide SA — 12–14 August 2016 © Copyright 2018 by The Samuel Griffith Society. All rights reserved. Contents Introduction Eddy Gisonda The Eighth Sir Harry Gibbs Memorial Oration The Honourable Robert French Giving and Taking Offence Chapter One Brendan O’Neill Hatred: A Defence Chapter Two John Roskam and Morgan Begg Prior v QUT & Ors [2016] Chapter Three The Honourable Tony Abbott Cultural Self-Confidence: That is What is Missing Chapter Four The Honourable Chris Kourakis In re Revenue Taxation & the Federation: The States v The Commonwealth Chapter Five Jeffrey Goldsworthy Is Legislative Supremacy Under Threat?: Statutory Interpretation, Legislative Intention, and Common Law Principles Chapter Six Lael K. Weis Originalism in Australia Chapter Seven Simon Steward Taxation of Multinationals: OECD Guidelines and the Rule of Law i Chapter Eight James Allan Australian Universities, Law Schools and Teaching Human Rights Chapter Nine Margaret Cunneen Great Harm to Innocent People: An ICAC story Chapter Ten David Smith The Dismissal: Reflections 40 Years On Chapter Eleven Don Morris Reserve Powers of the Crown: Perils of Definition Chapter Twelve Ken Coghill The Speaker Chapter Thirteen Peter Patmore Clerks of Houses of Parliament Contributors ii Introduction Eddy Gisonda The Samuel Griffith Society held its 28th Conference on the weekend of 12 to 14 August 2016, in the city of Adelaide, South Australia. The Conference featured a splendid line-up of speakers and was the best-attended conference in the history of the Society. During the weekend, participants had the very good fortune of hearing from the Chief Justice of the High Court of Australia, the Chief Justice of South Australia, a former Prime Minister, a former Deputy Premier and Attorney-General of Tasmania, a former Speaker of the Legislative Assembly of Victoria, a leading international commentator, experienced public servants, and some of the best academics, silks, and thinkers in the land. The 2016 conference was divided into themes. One theme was the question of rights. Within the context of this discussion, the right to speak freely loomed large, which was a fitting tribute to Sir Samuel Griffith. During his time as a politician, Griffith recognised the importance of expressing his views on political questions of the day, and presenting them for scrutiny. At one point in the rebound of his political career, Griffith was accused of making disingenuous comments about the equitable distribution of property, in what was perceived by his critics as a blatant attempt on his part to attract the vote of the working class. The workers’ newsletter, Boomerang, challenged Griffith to demonstrate the sincerity of his remarks by committing them to print and promised to publish them if he did. Griffith accepted the challenge. True to its word, Boomerang printed a special Christmas edition that included Griffith’s article, entitled “Wealth and Want”. As Cliff Pannam, QC, has observed, this was a significant moment, and a modern parallel would be “if a Liberal Leader of the Opposition published an article advocating nationalisation of banks, airlines and insurance companies in a radical labour newspaper!”: see Pannam, “The Radical Chief Justice” (1964) 37 Australian Law Journal 275. The conservative press was splenetic in its denunciation of Griffith’s ideas, but Griffith was undaunted by the criticism, and prepared a further article entitled “The Distribution of Wealth”. Griffith went on to retake the premiership of Queensland. The episode demonstrates for us the importance of having both the freedom and the courage to speak freely on political matters in a civilised forum. Another theme of the conference was the question of the Reserve Powers of the Crown, with parallels between the issues of today, and the time when Griffith was in active public service. The Cook Government, elected in 1913, had a one-seat majority in the House of Representatives, and a significant minority of seats in the Senate. A number of constitutional questions arose and the Governor-General, Sir Ronald Munro Ferguson, consulted Chief Justice Griffith on the exercise of his powers. It was not the first time, nor the last time, that Griffith was called upon to do so during his judicial career. It is as well for us to remind ourselves of the nature and content of the reserve powers, particularly in the context of recent election contests that have yielded majorities of very small number. A separate theme of the conference concerned the function of the Parliament. As a member of the Queensland Parliament, Griffith coveted the position of Attorney-General, and pursued the incumbent Edward McDevitt to that end. In aid of demonstrating that he would be iii the more able holder of that office, Griffith drafted, introduced, and then secured the passage of various pieces of legislation that would ordinarily fall within the purview of the Attorney. History is not short on politicians pursuing their ambitions, but Griffith, using the methods and processes of the Parliament, did so in a way that contributed to the public good. Some might wish to see a return of this function for the legislature but, for that to happen, we must first understand the Parliament and its officers. Another theme of the conference concerned the application of judicial method, and we heard thought-provoking papers on statutory interpretation, and the constitutional principle of originalism. Naturally, any discussion about originalism requires a deep understanding of the judicial work of Sir Samuel Griffith during his tenure as the first Chief Justice of the High Court of Australia. The principle of originalism sits front and centre of academic debate about constitutional interpretation in the United States of America, and it will be a continuing subject of discussion at the conferences of the Society in the years ahead. The success of the 2016 conference was due to the work of many generous and dedicated people. They included the speakers, most of whom travelled from interstate or overseas to speak at the conference, the chairs of the various sessions, the Honourable Ian Callinan, AC, and the other members of the Board of the Society, as well as John Roskam and the Institute of Public Affairs, and Ron Manners and the Mannkal Foundation. As with previous years, there were a number of Mannkal Foundation Scholars who attended the conference: James Carpenter, Jake Fraser, Daniel Gerson, Dylan Gojak, Heath Harley-Bellemore, Julian Hasleby, Danica Lamb, James Ledger, Michael McIlwaine, Bayley Novakovic, Stephen Puttick, Katelin Taylor, Amy Thomasson, Herman Toh, Alexander Williams, and Quentin Wong. There also were a number of Sir Samuel Griffith Society Scholars and Sir Charles Court Scholars: Georgia Allen, Anthony D’Alfonso, William Flowers, David Furse- Roberts, Damian Leach, Stephanie Morton, Kyriaco Nikias, Sharni Cutajar, Cory Harding, Lewis Hutton, and Avraham Schigel. These scholarships, which allow bright and interested students to attend our conferences, are an important part of the Society and we are most grateful to our very generous donors. The Society had a new year initiative in 2016: an essay competition named after Sir Samuel Griffith. The topic – “Is originalism a useful approach to constitutional interpretation in Australia in 2016?” – led to many thoughtful and interesting essays. In the end, Holly Gretton, a law student from the University of Western Australia, was judged the winner. The competition was organised by Benjamin Jellis, and we hope to have many more competitions in the years to come. Finally, Stuart Wood, QC, who is the secretary of the Society, and his executive assistant, Shannon Lyon, worked tirelessly on behalf of the Society for the entirety of the year. They were integral to the successful running of the conference, as were John and Nancy Stone in the earlier years, and Senator Bob Day, AO, and his assistant, Joy Montgomery, in more recent years. Further, 2016 was the first time in seven years that the conference had not been convened by Julian Leeser. His contribution to the Society is fondly remembered and we wish him well in his future career as a member of the House of Representatives. The papers in this volume of Upholding the Australian Constitution have been assembled, edited and prepared for publication by J. R. Nethercote. iv Giving and Taking Offence [The Eighth Sir Harry Gibbs Memorial Oration] The Honourable Robert French It is a pleasure to be given this opportunity to honour Sir Harry Gibbs, your founding President and, in so doing, Sir Samuel Griffith, for whom your Society is named. There is no need to rehearse before this audience their life histories and contributions. The story of Sir Samuel Griffith will be taken a little further afield in a few weeks. On 15 September 2016 I will visit Merthyr Tydfil in Wales, where he was born in 1845, and there present the Crown Court with a photographic montage honouring him and his birthplace. The montage will show the well-known photograph of Griffith presiding at the first sitting of the High Court in Melbourne in 1903, a reproduction of his handwritten Commission from the Governor-General, Lord Tennyson, and his oaths of office and allegiance. The response to the presentation has been enthusiastic and the event will be attended by the Lord Chief Justice of England and Wales. This Society is one