Upholding the Australian Constitution Volume Thirteen Proceedings of the Thirteenth Conference of The Samuel Griffith Society Holiday Inn, Melbourne, 31 August – 2 September, 2001 © 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 Constitution: 100 Years On Introductory Remarks John Stone Chapter One Hon Dr Frank McGrath, AM, OBE Today’s High Court and the Convention Debates Chapter Two Dr Bob Birrell Federation: Commemoration or Celebration? Chapter Three Keith Windschuttle History, Anthropology and the Politics of Aboriginal Society Chapter Four Dr John Forbes Native Title Now Chapter Five Professor Jonathan Pincus Fiscal Balance in the Australian Federation Chapter Six Des Moore Judicial Intervention: The Old Province for Law and Order Chapter Seven Harry Evans The Senate Today Chapter Eight Professor David Flint Mr Beazley and His Plebiscites Chapter Nine John Paul The Role of the Sovereign: The United Kingdom and Australia Distinguished Chapter Ten Sir David Smith, KCVO, AO What shall we do with ex-Governors-General? Chapter Eleven Professor Bob Catley The New Zealand Connection Concluding Remarks Rt Hon Sir Harry Gibbs, GCMG, AC, KBE Appendix I Contributors Foreword John Stone The thirteenth Conference of The Samuel Griffith Society was held in Melbourne in August- September, 2001, the Centenary year of Australia’s coming into being, on 1 January, 1901, as “one indissoluble federal Commonwealth under the Crown”. It seemed fitting therefore that this Conference should have as its principal (though as always, not sole) theme the commemoration, and as appropriate celebration, of 100 years of successful constitutional democracy in this country – “one nation for a continent, and one continent for a nation”, as Edmund Barton so fittingly described it more than a century ago. This Volume of the Society’s Proceedings, Upholding the Australian Constitution, contains the papers, and Dinner Addresses, delivered to that Conference, together with, as usual, the brief concluding remarks of our President, the Rt Hon Sir Harry Gibbs. Appropriately in these circumstances, Sir Harry’s opening Dinner Address, The Constitution: 100 Years on, focused particularly on the extent to which the objectives of the Founding Fathers (as he said, they were all men) had been realized. He noted in that context their incontrovertible intention to create a federal Commonwealth – defined at the time by Sir Robert Garran as “a form of government in which sovereignty or political power is divided between the central and the local [i.e., State] governments, so that each of them within its own sphere is independent of the other”. Sir Harry concluded however that, regrettably, “Federation in Australia is no longer what Griffith and Barton intended”. Aided and abetted (since the Engineers’ Case in 1920) by a predominantly centralist High Court, Canberra has so abused both its power to impose conditions on financial grants to the States (s.96 of the Constitution), and the external affairs power (s.51(xxix)), that “the States are no longer supreme and independent within their own spheres”. Against that background it was highly appropriate that the first Conference paper following Sir Harry’s address should have been that by the Hon Dr Frank McGrath. Dr McGrath drew attention to the strange (and to “the ordinary man”, well-nigh incomprehensible) attitude taken by the High Court over the years to the intentions of those who formed our Constitution. In particular, he underlined the reluctance, or downright refusal, of the Court to draw upon the rich mine of information contained in the Hansard records of the Convention Debates. Dr Bob Birrell’s paper remarked upon the extraordinary achievement of the Founders. They, as he said, were the representatives of six proudly independent British Colonies, coming together voluntarily, and agreeing peaceably on a draft Constitution which they then put to the people of their separate jurisdictions for their approval. That approval having been duly given (after a small hitch initially in New South Wales), they took the document to the Imperial Government in London, where, with the most marginal alterations, it was fully accepted. “Forelock tuggers” indeed! After a lapse of some little time, this Conference returned to one of the Society’s recurring themes, “the Aboriginal question”, with a fascinating paper by Keith Windschuttle exploding the Henry Reynolds (et al) myths about the Aboriginal/European relationship in the early days of settlement of Tasmania. Dr John Forbes, in his scintillating paper, Native Title Now, not only brought us up to date with the present state of legal play in this sorry episode, but also, in the process, provided much worrying material as to the state of our Federal Court. The judicial activism indulged in there by a significant number of what can only be called “rogue Judges” was also the subject of extensive remark in Des Moore’s paper, Judicial Intervention: The Old Province for Law and Order. As Sir Harry Gibbs said in his concluding remarks: “It is disturbing that … there is a perception that some Federal Judges decide according to their ideological biases rather than according to law. It tends to destroy respect for the law in general and the Federal Court in particular … This should be a matter of concern to those many Federal Court Judges whose reputation is beyond reproach”. One matter of some interest at this juncture in our constitutional history is the possibility of reviving the Founders’ original provision for New Zealand to become part of the Australian federation. Professor Catley’s lively paper, The New Zealand Connection, examined the pros and cons of such a development, concluding that the prospects for it were not hopeful. As this foreword is written, during the last week of October, Australia is mid-way through a federal election campaign. One of the key aspects of that campaign is the issue of national sovereignty, which, as I said in my introductory remarks to the Conference (see p.xxiii), had during the week preceding the Conference “been more forcefully drawn to the attention of Australians generally than at any time … since World War II”. Yet another key aspect – though not, up till this moment, one which has received any public attention from either side of the campaign – is the republic question. Professor Flint’s Dinner Address, Mr Beazley and his Plebiscites, eloquently warns us of the dangers in adopting this Napoleonic device; while two other papers, by John Paul and Sir David Smith, address, from different vantage points, aspects of the role of our Head of State, the Governor-General. All of these papers deserve to be widely read and widely debated. Like its twelve predecessors, it is to that end that this Volume is dedicated. Dinner Address The Constitution: 100 Years On Rt Hon Sir Harry Gibbs, GCMG, AC, KBE In the public celebrations of the Centenary of Federation, little attention has been paid to the question whether the Constitution works satisfactorily. That is understandable. The focus of the celebration is on the establishment of the Commonwealth, and the interest and enthusiasm of the public is not likely to be increased by a discussion of constitutional principles and the nature of federalism. The Constitution can not be understood by looking at its text alone; its meaning has been expounded by many decisions throughout 200 volumes of the Commonwealth Law Reports. What Edward Gibbon said in the 18th Century with regard to the law seems applicable to constitutional law today: “Few men without the spur of necessity, have resolution to force their way through the thorns and thickets of that gloomy labyrinth”. “Gloomy” may be too strong a word to apply to the constitutional decisions, but no one could deny them the epithet “labyrinthine”. I find it necessary tonight to take only a few short steps into the labyrinth. Even if, on examination, we were to find that the Constitution is less than perfect, we should still honour those men (the founding fathers) whose efforts succeeded in gaining the acceptance of the Constitution by the public in Australia and by the Imperial authorities in London. It seems to us now so natural that Australia should be one nation that we tend to forget that it was only by effort and sacrifice that those who strove for Federation were able to overcome the local jealousies, and reconcile the local interests, of the six Australian Colonies and to secure the agreement of the Imperial authorities to the form of Constitution on which the people of Australia had agreed. The founding fathers – they were all men, of course – had the high purpose that, in Edmund Barton’s words, there would be, for the first time in human history, a nation for a continent, and a continent for a nation. There were other arguments in favour of Federation – for example, the need for a unified defence force and the abolition of internal customs barriers – but they were subsidiary to the ideal that Australia should be one nation. The ideal has endured; it has withstood attempts at secession in the past, and one hopes that in the future, it will withstand misguided attempts to divide the nation by such things as the claim for Aboriginal sovereignty. The founding fathers of our Constitution are not known to every school child in the way that the founders of the American Constitution are known in the United States. It is not unusual for distinguished Australians, other than sportsmen and bushrangers, to be consigned to oblivion, from which they are rescued only for the purpose of attempting to show that they had feet of clay. A former Prime Minister described those who were responsible for the form which the Constitution took as “forelock tuggers”.