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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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Secondly, I mention the f e a t u r e of Judges or courts a s s i s t i n g executive government w i t h commentary on d r a f t legislation which may affect t h e operation and j u r i s d i c t i o n of the court. In 1991, the Supreme Court of Queensland Act established a body called the L i t i g a t i o n Reform Commission, comprising the President and Judges of Appeal, and other appointees. T h a t Commission was charged w i t h making reports and recommendations w i t h respect to the operation of the courts, which were directed to the Executive, and which inevitably involved consultation w i t h the Executive a s to v a r i o u s proposals. The body no longer e x i s t s, but i t h a s been the p r a c t i c e of t h e g o v e r n m e n t t o p r o v i d e t h e c o u r t w i t h d r a f t s o f legislation which may have an impact on the workings and jurisdiction of the courts.

My p r a c t i c e h a s been to seek the a s s i s t a n c e of other Judges p r i o r t o f o r m u l a t i n g any comment, and we are careful not to intrude into a r e a s of Executive policy. The procedure h a s worked well, and the court h a s not been discomforted by having to pass on the validity or interpretation of legislation on which I have previously offered views. This is an area where some compromise h a s I believe been j u s t i f i e d, in the public i n t e r e s t, t h o u g h o n e m u s t o f course approach the matter with care.

In s u m m a r y, executive governments, and courts and Judges themselves, m u s t, in these t i m e s, be careful to ensure t h a t the clear delineation of t h e judicial function not become blurred or distorted. I raised at the outset whether the proliferation of t r i b u n a l s, especially in t h e S t a t e s, m i g h t not reflect some change in Executive regard for the courts of law, perhaps fed by the evolution of the judicial role of which I have spoken this evening. I turn to the issue raised at the start.

Is it really the case that sophisticated modern society, and the intricacy of the problems it spawns, have warranted the establishment of so many specialist t r i b u n a l s ? I a m unconvinced t h a t the c a p a c i t y of courts and Judges, d e m o n s t r a t e d over many decades, to embrace effectively a wide-range of decision-making, h a s waned; or t h a t the public would be more confident in having contentious issues on sensitive subjects determined by t r i b u n a l s r a t h e r than by courts. And i t is m o o t w h e t h e r other features presented a s being the a d v a n t a g e s o f t r i b u n a l s a r e r e a l l y being achieved: relative i n f o r m a l i t y, g r e a t e r expedition and comparative lack of expense.

I am, I suppose not surprisingly, an advocate of the enormous benefit to be d r a w n b y t h e p u b l i c f r o m t h e i r c o u r t s o f law. B u t a s I have suggested, and a number of t i m e s t h i s evening, the courts themselves, and the governments of t h e i r j u r i s d i c t i o n s, m u s t be careful to preserve the i n t e g r i t y of t h a t f u n d a m e n t a l j u d i c i a l process, and thereby m a i n t a i n the public confidence on which the ultimate authority of the judicial determination depends.

I will stop there, lest I come to emulate one of S i r S a m u e l G r i f f i t h ’ s very few, l e s s than effective public performances – his loss of t h e m o t i o n t o censure Queensland Premier Sir Thomas McIlwraith, following a parliamentary session in which he, Griffith, is said to have spoken continuously for … 7 hours. 12


1. Grollo v. Palmer (1995) 184 CLR 348, 364-5.

2. M i s t r e t t a v. U S (1989) 488 US 361, 407.

3. Wilson v. Minister for Aboriginal and Torres Strait Islander A f f a i r s ( 1 9 9 6 ) 189 CLR 1.

4. Kable v. The D i r e c t o r o f Public Prosecutions for t h e S t a t e of New S o u t h Wales (1996) 189 CLR 51.

5. Ibid., p. 122.

6. Cf. Supreme Court of Queensland Act 1991, s. 27AA.

7. E.g., Wilson, loc. cit., p. 22.

8. Fardon v. Attorney-General (Qld) (2004) 78 ALJR 1519.

9. Ibid., p. 1528.

10. W h i t e a n d R a h e m t u l a ( e d s ), Queensland Judges on the High Court (2003), note 23.

11. Loc. cit., p. 17.

12. R B Joyce, Australian Dictionary of Biography, Melbourne University Press, Volume 9 (1891-1939), pp. 112-119.

–  –  –

Ladies and Gentlemen, welcome to this, the seventeenth Conference of The Samuel Griffith Society, and our third in Queensland, where we were honoured last night by the presence of t h e C h i e f J u s t i c e o f the Supreme Court of Queensland, t h e Honourable Paul de Jersey. Not merely were we honoured by his presence, b u t those of you who attended last night’s dinner were also privileged to h e a r H i s Honour’s address to the Society, Evolution of the Judicial Function: Undesirable Blurring? Chief Justice de Jersey’s remarks on t h a t “ u n d e s i r a b l e b l u r r i n g ” will have struck many a chord in the minds of all those who heard him.

Having mentioned the presence of one Chief Justice at last night’s dinner, I should also mention, for those who were not here then, the absence of a n o t h e r Chief Justice, our own greatly respected President, the R i g h t Honourable S i r Harry Gibbs. Despite what was printed in the Conference program as originally sent to members, S i r H a r r y h a s been forced, on medical advice, to cancel h i s plans to attend. Accordingly, at last night’s dinner our Vice-President, Sir Bruce Watson, who chaired t h a t d i n n e r i n S i r H a r r y ’ s place, read to the assembled

guests the following expression of regret from Sir Harry:

“I a m g r a t e f u l to S i r Bruce Watson for delivering these r e m a r k s on my behalf.

“I greatly regret t h a t I a m unable to be present w i t h you during t h i s Conference. My health unfortunately does not permit it.

“Our Conferences a r e t h e c e n t r a l a c t i v i t y of the Society. They provide t h e occasion for the delivery of p a p e r s w h i c h, a s you know, are subsequently published in our series Upholding the Australian Constitution. Articles once published provide a permanent source of knowledge and ideas and can have an enduring influence on opinion. One hopes that this will be the case with the papers delivered at our Conferences.

“The cause of Federalism needs defenders, since members of a l l t h e 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 the Commonwealth’s duplication of t h e i r functions; on t h e contrary, the results of such duplication are likely to include more bureaucratic interference and less responsibility. In a d d i t i o n t o questions involving Federalism, papers delivered, and to be delivered, a t our Conferences deal w i t h m a t t e r s of public interest and deserve a wide circulation.

“Also, the Conferences provide a v a l u a b l e o p p o r t u n i t y for members of t h e Society to renew t h e i r acquaintance w i t h each other, or to make new acquaintances, particularly since members come from all States. I shall of course read the papers given a t the Conference, but shall m i s s t h e o p p o r t u n i t y t o h e a r t h e d i s c u s s i o n t h a t t h e p a p e r s g e n e r a t e a n d to meet, in some cases for the first time, the speakers and those other members of the Society who are present.

“There are two more personal reasons for my regret a t not being a t Greenmount this weekend. First, it is no reflection on any other State – they all have c h a r m s – to say t h a t I have an especially w a r m regard f o r Queensland, which was what now seems to be called my State of Origin, and where I spent many happy years. Also, as i t happens, I knew Greenmount well, when it was very different from what it has now become. Secondly, and more importantly, I would very much have wished to be present to hear the address by the Chief Justice of Queensland, who honours us w i t h h i s presence tonight.

“Please accept my apologies for my absence. I offer my best wishes for a successful Conference”.

S i r Harry’s r e m a r k s about Queensland remind me also to say w h a t a pleasure it is for both Nancy and myself to return, if only briefly, to the State in which we were privileged, for a few years, to become “honorary Queenslanders”.

They were years on which we both look back with great fondness.

As S i r H a r r y truly remarked, today “the cause of Federalism needs defenders”. Few things have been m o r e d i s m a y i n g d u r i n g t h e s i x m o n t h s since last year’s federal election than the swelling tide of ignorant centralism rushing out of Canberra, whether it be in the field of health, education, infrastructure, rorts for rural roads, or whatever. Even the Prime Minister has not been immune from this disease, while the immature mouthings of the Ministers for Health and Education, Messrs Abbott and Nelson, have been nothing short of appalling.

A friend of mine, a person high in Liberal Party circles, recently said to me that he believed that the only member of the Cabinet who had any genuine belief in federalism was the Minister for Finance, Senator the Honourable Nick Minchin.

As it happens, Senator Minchin was with us last night, but has had to leave this morning. In any case, of c o u r s e, I s h o u l d n o t h a v e e m b a r r a s s e d h i m by asking him to confirm or deny the veracity of that reportage.

Having mentioned last year’s federal election, it may be opportune to note t h a t, since the Society l a s t m e t in P e r t h in M a r c h l a s t year, the C o a l i t i o n government has been returned to office in Canberra, and t h a t, m i r a b i l e d i c t u, the outcome for the half-Senate election now m e a n s t h a t i t will h a v e a S e n a t e m a j o r i t y f r o m 1 J u l y next. So much, incidentally, for the view s t a t e d by t h e P r i m e M i n i s t e r in his speech to the Liberal P a r t y ’ s N a t i o n a l Convention in Adelaide on 8 June, 2003, when he s a i d t h a t “ i t is for p r a c t i c a l purposes i m p o s s i b l e f o r t h e C o a l i t i o n in its own r i g h t t o obtain a m a j o r i t y of the 76 members of the federal Senate”. All I will say on that point is that, as Professor Malcolm Mackerras pointed out in his paper to our last Conference in Perth, any Government which is so reckless as to go to an election promising (threatening) a new Goods and Services T a x, a s t h i s Government did in 1998, should not be surprised if the voters punish it severely through their Senate votes for doing so.

In short, the Government h a s always h a d itself to blame, not wholly b u t principally, for its difficulties in the Senate during 1999-2005.

That, of course, is now (almost) in the past, and the Government is looking forward to a much brighter Senate situation. In turn, however, that makes that o u t b r e a k o f c e n t r a l i s t p o l i t i c a l r a b i e s to which I referred e a r l i e r a l l t h e m o r e dangerous. We live in i n t e r e s t i n g – a n d p o t e n t i a l l y t h r e a t e n i n g – times. One of our papers tomorrow, by M r Bryan Pape, on The Use and Abuse of t h e Commonwealth Finance Power, will spell out in s o m e d e t a i l t h e r a v a g e s which Canberra has already wrought in our federal constitutional defences.

Today, however, we are to begin w i t h some papers bearing on t h e constitutional state of affairs here in Queensland. The arrogance of politicians generally is, of course, legendary; but the Government of this State seems to have carried that arrogance to extremes. We shall hear shortly two papers, from Mr Kevin Lindeberg and Professor Suri Ratnapala, which in their very different ways go to the heart of that issue, while Mr Bruce Grundy will consider the noticeable absence in this State of one of the institutions (an Upper House) which in other S t a t e s d o e s provide s o m e check upon the d i c t a t o r s h i p of the Executive. And t o n i g h t, of course, Bob B o t t o m will address us on Frauding t h e Vote in Queensland.

However, as Professor Dean Jaensch remarked last November in “launching” in Adelaide Volume 16 of our Proceedings, our Conference p r o g r a m s a r e remarkably “eclectic”. This one is no exception. A p a r t f r o m t h e issues I have already mentioned, we are looking forward to papers on s u c h v a r i e d t o p i c s a s Section 15 (the filling of casual Senate vacancies); the Head of S t a t e question;

the nationally dispiriting joke which Native Title (or Brennan-Deane title) has become today; and the issue of Australian sovereignty and t h e U n i t e d N a t i o n s.

What could be more “eclectic” than that?

Before I hand over to our C h a i r m a n for the opening Session, M r B e r n a r d Ponting, I wish to record two acknowledgements. The first is to Bernard Ponting h i m s e l f, t o w h o m, a s a n o l d f r i e n d, I a p p e a l e d a f t e r t h e B o a r d h a d decided t o hold t h i s Conference on the Gold Coast. I t was he who undertook the not i n s u b s t a n t i a l work involved in locating a venue a p p r o p r i a t e to our m o d e s t budget, and I hope you will join me in thanking him for a job well done.

My second acknowledgment relates to that aforementioned book “launch” in Adelaide, organized by our indefatigable South A u s t r a l i a n B o a r d member, Bob Day. It is to Bob’s generosity that the Society also owes the banner which you see on yonder wall, and it is also to his generosity that we owe those neatly and well printed programs which graced all your places at dinner last night – and which have s i m i l a r l y graced the Opening Dinners of all sixteen of our previous Conferences. It is h i g h t i m e t h a t B o b Day was thanked (publicly, t h a t i s ) f o r that, and I hope you will all now join me in doing so.

I now have great pleasure in asking Bernard Ponting to take the chair, and call upon our first speaker, Mr Kevin Lindeberg.

–  –  –

In t h i s paper I shall invite you to consider the Heiner a f f a i r, which h a s persisted f o r t h e l a s t 15 years in “ p o s t - F i t z g e r a l d ” Queensland, i t s e r a of socalled open and accountable government. This affair is the long-running Hydra of Queensland’s public a d m i n i s t r a t i o n. I t grew out of a decision by the Goss Government, within weeks of taking control in 1990, which now gives rise to the most serious questions about the constitutional state of affairs in Queensland.

Heiner affair’s epicentre The decision to which I refer was the order by the Queensland Cabinet t o deliberately destroy the Heiner Inquiry documents to prevent their known use as evidence in a n a n t i c i p a t e d j u d i c i a l proceeding, and to prevent the contents of the gathered public records being used against the careers of the public servants involved. These public records were gathered during the course of a l a w f u l inquiry 1 into the management of the John Oxley Youth Detention Centre conducted by r e t i r e d S t i p e n d i a r y M a g i s t r a t e Noel Heiner, from whom t h e affair’s name is derived.

The Heiner Inquiry was established in the final days of the Cooper National P a r t y Government; within weeks of the Goss Government coming to power, the Inquiry was shut down, and all the gathered material secretly destroyed. At the time the Cabinet ordered the records be destroyed, the Queensland Government was a w a r e t h a t they were likely to be required in evidence in a j u d i c i a l proceeding.

Let me present some key Heiner facts as they affect the rule of law a n d Queensland’s governance.

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