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«Upholding the Australian Constitution Volume Seventeen Proceedings of the Seventeenth Conference of The Samuel Griffith Society Greenmount Beach Resort, ...»

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Upholding the Australian Constitution Volume Seventeen

Proceedings of the Seventeenth Conference of The Samuel

Griffith Society

Greenmount Beach Resort, Hill Street, Coolangatta

© Copyright 2005 by The Samuel Griffith Society. All rights reserved.

Table of Contents


John Stone

Dinner Address

Hon Chief Justice Paul de Jersey, AC

Evolution of the Judicial Function: Undesirable Blurring?

Introductory Remarks

John Stone

Chapter One

Kevin Lindeberg

The Heiner Affair Chapter Two Professor Suri Ratnapala Constitutional Vandalism under Green Cover Chapter Three Bruce Grundy The Missing Constitutional Ingredient: An Upper House Chapter Four John Nethercote Senate Vacancies: Casual or Contrived?

Chapter Five Sir David Smith, KCVO, AO The Governor-General is our Head of State Chapter Six Professor Andrew Fraser Monarchs and Miracles Chapter Seven Dr John Forbes Native Title Today Chapter Eight Bob Bottom, OAM Frauding the Vote in Queensland i Chapter Nine Bryan Pape The Use and Abuse of the Commonwealth Finance Power Chapter Ten Dr Dominic Katter Australia’s International Legal Obligations: Maritime Zones and Christmas Island Chapter Eleven Professor Gregory Rose The United Nations as a Source of International Legal Authority Appendix I John Stone Tribute to the late Sir Harry Gibbs Appendix II Rt Hon Sir Harry Gibbs, GCMG, AC, KBE Australia Day Messages, 2001-2005 Appendix III Contributors ii Foreword John Stone Important though the periodic Conferences of The Samuel G r i f f i t h Society are, the Proceedings of our 17th Conference, held at Coolangatta on 8-10 A p r i l l a s t, which are recorded in t h i s volume of our series Upholding t h e Australian C o n s t i t u t i o n, pale into insignificance compared w i t h t h e s u b s e q u e n t d e a t h of our President, the Right Honourable Sir Harry Gibbs, GCMG, AC, KBE.

I shall not repeat here what I have said in Appendix I, T r i b u t e t o t h e l a t e Sir Harry Gibbs, other than to reiterate the respect and affection with which Sir Harry was regarded by all our members, and the sense of tragic loss with which his death has been greeted. Requiescat in pace.

As t h i s Foreword is being w r i t t e n, the federal P a r l i a m e n t h a s j u s t adjourned a f t e r the f i r s t fortnightly s i t t i n g of i t s Autumn Session. The new Senate, as f r o m 1 J u l y, h a s been sworn in, and t h e C a n b e r r a p r e s s g a l l e r y h a s been h a r d a t w o r k a t t e m p t i n g to deprive the government of i t s Upper House majority by inducing one or other Coalition Senators to defect from key elements of the legislative program.

How successful t h e p r e s s g a l l e r y ( w h i c h now clearly regards itself as, in effect, the Opposition – the other one having, so to speak, gone missing) will be in these endeavours, r e m a i n s to be seen. In i t s f i r s t t e s t (the sale of t h e government’s remaining shareholding in Telstra), it seems to have been defeated – although even that still remains uncertain.

Be t h a t a s i t may: T e l s t r a is one thing, the government’s proposed industrial relations legislation is another, and one which touches, in one major respect, upon the interests of this Society. I refer, of course, to the government’s proclaimed intention to rest its new legislation upon the corporations power of t h e C o n s t i t u t i o n. T h a t p o w e r (section 5 1 ( x x ) ) endows the federal P a r l i a m e n t with the power “to make laws for the peace, order and good government of t h e Commonwealth w i t h respect to: ( x x ) foreign corporations, and t r a d i n g or financial corporations formed within the limits of the Commonwealth”.

Some earlier High Court decisions notwithstanding, i t is n o t c l e a r t o me (nor, I suggest, to any p l a i n m a n ’ s reading of t h e m ) how those words would a u t h o r i s e t h e f e d e r a l P a r l i a m e n t to make l a w s p u r p o r t i n g t o “take over” t h e industrial relations functions of the States. Nor, as it happens, do I believe it is necessary for the government, in seeking to reform our i n d u s t r i a l r e l a t i o n s system, to do so.

Lest these comments be misunderstood, I should make it clear that I yield to none in my support for the government’s reform objectives in this area. I was, after all, one of four people who, in 1986, founded t h e H R Nicholls Society to promote debate about our i n d u s t r i a l relations system, w i t h a view to i t s wholesale reform. I therefore fully endorse the government’s underlying objectives. As it has argued, those objectives are central not only to f u r t h e r i n g the cause of economic reform (and hence to r a i s i n g n a t i o n a l p r o d u c t i v i t y a n d living s t a n d a r d s ), but also to a m e l i o r a t i n g the position of those many Australians who, today, are locked out of employment by t h e o p e r a t i o n of our present dysfunctional i n d u s t r i a l r e l a t i o n s s y s t e m. Nevertheless, I question t h e government’s proposed reliance on a f u r t h e r perversion of our federal iii C o n s t i t u t i o n t o achieve those a i m s. In short, its excellent ends do not j u s t i f y these dubious means.

A s r e m a r k e d e a r l i e r, i t i s n o t, in my view, necessary in any case to “ t a k e over” the States’ industrial relations powers in order to achieve the government’s objectives. If, as it argues – and I agree – its proposed new industrial relations system will bring benefits to both employers and employees, then we m i g h t confidently expect that, over t i m e, the S t a t e s ’ benighted a w a r d systems, a n d t h e i r a s s o c i a t e d l e g a l i s t i c p a r a p h e r n a l i a, will simply wither on the vine a s a result of competitive forces. Nor can i t be ruled out t h a t, even before t h a t happens, some a t least of the S t a t e governments will follow the example of V i c t o r i a a n d cede t h e i r p o w e r s i n t h i s field to the Commonwealth under t h e provisions of section 51(xxxvii).

H o w e v e r t h a t m a y be, there is a second and more i m p o r t a n t reason f o r questioning the legislative p a t h on which the government a p p e a r s to be embarked. T h a t is because I greatly fear t h a t, having laboured in t h e parliamentary vineyard to have its legislation passed (and having made various undesirable concessions to its opponents in the process), the government m a y then find t h a t legislation, or large p a r t s of i t, overturned by a High C o u r t which, at long last, shows signs of h a v i n g r e g a r d t o the federal n a t u r e o f our Constitution.

A s t o a l l t h a t, w e s h a l l s e e. W h a t i s c l e a r f r o m a l l t h i s and other r e l a t e d developments is t h a t, to quote S i r H a r r y Gibbs in his l a s t message to t h e


“The cause of federalism needs defenders, since members of all the m a i n p o l i t i c a l p a r t i e s in Canberra seem determined to encroach on functions which were obviously intended to belong to the States. It may be true that n o t a l l S t a t e governments are models of efficiency, but they will not be improved by t h e C o m m o n w e a l t h ’ s d u p l i c a t i o n [or, he m i g h t have added, usurpation] of their functions; on the contrary..……”.

Those words were conveyed to the opening dinner of the C o o l a n g a t t a Conference which, for health reasons, S i r H a r r y was unable to attend (see t h e Introductory Remarks on the following morning at page xxix). Barely had they been u t t e r e d on 8 April, and our Conference concluded on 10 April, before t h e P r i m e M i n i s t e r himself, in a speech on 11 April, Reflections on Australian Federalism, underlined their truth.

In a n a d d r e s s r e p l e t e w i t h o u t r a g e o u s c l a i m s ( m o s t blatantly, “ w i t h t h e GST, my government delivered the most important federalist breakthrough since the Commonwealth took over income taxing powers during World War II”) a n d straw men (“I have never been one to genuflect uncritically at the altar of States’ rights”), Mr Howard revealed the full extent to which Canberra now regards it a s w i t h i n i t s powers to control virtually everything w i t h i n our nation. M y personal regard for the Prime Minister notwithstanding, this was nothing short of deplorable (as, in The Australian o n 1 8 A p r i l, I p o i n t e d o u t a t g r e a t e r l e n g t h than would now be appropriate here).

Professor Dean Jaensch, of Flinders University, p a i d the Society a compliment l a s t November in observing, when “launching” Volume 16 of our Proceedings in Adelaide, t h a t our Conferences were nothing if not “eclectic” in both topics and speakers. The Coolangatta Conference fully lived up to Professor Jaensch’s encomium.

It began with three papers, plus a dinner address on Saturday evening from iv Bob Bottom, under the general rubric “The constitutional state of Queensland”.

To say that each of these papers cast Queensland in a deplorable constitutional l i g h t would be an u n d e r s t a t e m e n t. T h a t by Professor S u r i R a t n a p a l a, Constitutional Vandalism under Green Cover, is redolent o f a ( s i n g l e C h a m b e r ) Parliament that has lost all touch with what most Australians would regard as the rule of law.

If anything, the paper by Mr Kevin Lindeberg, The Heiner Affair, goes even f u r t h e r. I t tells the sorry story of t h a t episode, beginning w i t h the Goss Government’s action in 1 9 9 0, c l e a r l y c o m m i t t i n g an offence under t h e C r i m i n a l Code of Queensland (drawn up originally by Sir Samuel Griffith, incidentally) by ordering the destruction of official records which it had already been informed were likely to be required for the purpose of legal proceedings.

The l i s t of m i s c r e a n t s in t h i s a f f a i r is a l m o s t endless: the Cabinet Ministers of the Goss Government itself, Ministers (or at least the Premiers and t h e i r Attorneys-General) of all subsequent governments to t h i s t i m e, t h e Criminal Justice Commission, its latter-day successor the Crime and Misconduct Commission, the relevant public service personnel within the Justice Department – and the l i s t goes on. Even the Crown, in the form of the S t a t e Governor, appears to have failed in its duty up to this time.

I defy any disinterested observer, reading t h i s p a p e r, t o c o m e a w a y f r o m doing so with anything but a s i n k i n g h e a r t a s concerns the rule of law in t h e c o n d u c t o f a f f a i r s i n a g r e a t S t a t e of the Commonwealth (and one for which, next to my own State of Western Australia, I retain the fondest regard).

Mr Lindeberg’s paper, as I say, s p e a k s f o r i t s e l f. However, perhaps I m a y add a footnote. After the Coolangatta Conference I sent Sir Harry Gibbs, a t h i s request, copies of all the papers delivered there. After having read M r Lindeberg’s paper Sir Harry promptly wrote, on 15 April, 2005 a private letter to him. I have seen a copy of t h a t l e t t e r, and in view of S i r Harry’s subsequent death I now feel free (as, no doubt, will Mr Lindeberg) to reveal its contents so

far as they relate to this matter. Sir Harry wrote:

“I have read your paper with great interest. There can now be no doubt that the advice given to the Queensland Government and the view accepted by the Criminal Justice Commission, that s.129 of the Queensland Criminal Code, read in the light of the definition of “Judicial Proceedings” in s.119 of t h e Code, applies only w h e n t h e J u d i c i a l Proceeding has a c t u a l l y commenced, was erroneous. That was authoritatively recognized in 2004 by the decision of the Queensland Court of Appeal in R v. Ensbey. I t follows t h a t if t h e evidence establishes beyond doubt t h a t t h e Q u e e n s l a n d C a b i n e t on the 5 th March, 1990 knew that legal proceedings were likely, and that the material which i t ordered to be s h r e d d e d m i g h t be required in evidence in those proceedings, there is at least a p r i m a f a c i e c a s e t h a t t h o s e m e m b e r s o f t h e Cabinet who ordered the shredding were in breach of the law”.

And s t i l l the Queensland Government refuses to take any action in t h i s matter.

While it always verges on the invidious to single out p a r t i c u l a r p a p e r s i n the Foreword, I must nevertheless mention two others. First, I refer to Dr John Forbes’s paper a t C h a p t e r Seven, Native T i t l e Today, wherein is set out t h e doleful story of the Brennan-Deane title from its invention by t h e M a s o n H i g h Court in 1992 until the present day. With characteristic wit, urbanity and above all command of his material, Dr Forbes has done any student of t h i s s h a m e f u l v episode yet another service.

My second reference is to t h e i m p o r t a n t p a p e r, The Use and Abuse of t h e Commonwealth Finance Power, by M r B r i a n Pape, which a p p e a r s here a s C h a p t e r Nine. In his well-researched and h a r d - h i t t i n g exposé of t h e constitutional arrogance of federal governments up to and including the present one, Mr Pape not only questions the constitutional validity of a significant body of Commonwealth legislation over the years, but also raises the basic question of how (or even whether) a concerned A u s t r a l i a n citizen can obtain standing t o raise these issues by way of High Court challenge.

I t i s ironic, to s a y t h e l e a s t, t h a t C o a l i t i o n p a r t i e s which deplore, q u i t e rightly, the actions of the Whitlam Government, should in this regard prove t o be sedulously emulating the constitutional impropriety of that administration.

As a commentary upon all t h a t, M r Pape’s paper cannot be too highly recommended.

Like its sixteen predecessors, Volume 17 in this series is once more offered in the hope that it will contribute to debate about our Constitution.

–  –  –

I am honoured to have the opportunity to deliver this address. Sir Harry asked me to speak on an aspect of the Commonwealth Constitution, and I will do so.

T h a t b e i n g m y d i r e c t i o n, I m u s t a t once s a y t h a t I a m r e l i e v e d, o n a r e l a x e d Friday evening on the Gold Coast, to be addressing at Coolangatta the members of The Samuel Griffith Society, and not any o t h e r g a t h e r i n g !

I a p p l a u d your interest in the development and a p p l i c a t i o n of our c o n s t i t u t i o n a l l a w. T h a t y o u will listen c r i t i c a l l y t o my views is a challenge I accept. I hope however you may accept that, as Griffith’s successor in office 14 down the line, notwithstanding my enduring respect for that great man of truly epic achievement, I will not this evening pretend to be, in the words of Alfred Deakin, “lean, ascetic, cold, clear, collected and a c i d u l a t e d ”. Well, a t least I w o n ’ t b e a s c e t i c, c o l d o r a c i d u l a t e d : i t i s a f t e r a l l a b a l m y Gold Coast evening and we are enjoying a pleasant dinner.

I wish to speak of some evolution in the role of t h e c o u r t s o f law in our democracy. My thesis is that there has over recent decades been departure from the a s s u m p t i o n t h a t courts e x i s t for the sole purpose of the j u d i c i a l d e t e r m i n a t i o n o f cases w i t h i n the courtroom: a d e p a r t u r e which h a s a r i s e n through actions of the Executive, in requiring from courts what are essentially administrative rulings; and, more subtly, through various approaches of courts themselves and individual Judges, to which I will come. I will u l t i m a t e l y mention the issue whether the p r o l i f e r a t i o n of t r i b u n a l s, a t the S t a t e level especially, may possibly be a consequence of some perceived blurring of t h e judicial function.

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