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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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Conclusion We have found t h a t A u s t r a l i a n s have good reasons to be skeptical about t h e United Nations as a source of legal authority in Australian law. United Nations law-making o f t e n l a c k s p r o c e d u r a l r i g o u r a n d is not premised on d e m o c r a t i c j u s t i c e. All liberal d e m o c r a t i c societies m u s t be skeptical concerning t h e legitimacy of l a w s a d o p t e d a n d applied to t h e m by the United Nations t h a t conflict with their own valid laws.

Nevertheless, a modern globalised world needs i n t e r n a t i o n a l laws and a l e g i t i m a t e system for i n t e r n a t i o n a l law-making. The current United N a t i o n s model will not last forever. It was built on t h e r u i n s o f the League of N a t i o n s (1920-1946). The primary objective for its core organs, as set out in Article 1 of t h e C h a r t e r, i s t o m a i n t a i n i n t e r n a t i o n a l peace and s e c u r i t y, y e t t h e r e a r e 3 5 a r m e d c o n f l i c t s r a g i n g a t t h e m o m e n t and many more have gone before, while evidence of any conflagrations that the United Nations has prevented is scarce.

The Iraq oil-for-food US$10 billion scandal, and i t s alleged influence on Security Council decision-making, is s y m p t o m a t i c of a f u n d a m e n t a l s t a t e of crisis. The Trusteeship Council that oversaw decolonisation is already defunct, and the General Assembly and Security Council are chronically dysfunctional.

Currently, the central institutions of the United Nations are in terminal decline, and i t is p r o b a b l e t h a t a l t e r n a t i v e i n s t i t u t i o n s will begin to evolve in two or three decades.

–  –  –

19. Drawn from Bodansky, Daniel, The Legitimacy of International Governance:

A Coming Challenge for International Environmental L a w, 93 American Journal of International Law (1999), 596.

20. “An action may be said to be conformable to the principle of utility … when the tendency it has to augment the happiness of the community is greater

t h a n a n y i t h a s t o d i m i n i s h i t ”. B e n t h a m, Jeremy, An introduction to t h e

principles of morals and legislation, in Bowring, John, T h e w o r k s o f J e r e m y B e n t h a m (Edinburgh, 1943), vol. I, p. 1.

21. C h a r t e r Article 103 p r o v i d e s t h a t : “ I n t h e e v e n t o f a conflict between t h e obligations of the Members of the United Nations under the present Charter and t h e i r obligations under any other i n t e r n a t i o n a l agreement, t h e i r obligations under the present Charter shall prevail”.

22. C h a r t e r A r t i c l e 2 5 p r o v i d e s t h a t t h e M e m b e r s o f t h e U n i t e d N a t i o n s agree to accept and carry out the decisions of the Security Council in accordance with the Charter. Recommendations of the General Assembly, however, can carry legal weight as indicia of customary international law.

23. Decisions of the Court open to such interpretation include its 1998 decision on Questions of I n t e r p r e t a t i o n and Application of t h e 1971 M o n t r e a l Convention arising f r o m t h e Aerial Incident a t Lockerbie ( Libyan Arab J a m a h i r i y a v. U n i t e d S t a t e s o f A m e r i c a ), and its 2004 advisory opinion on Legal Consequences of t h e Construction of a Wall in t h e Occupied Palestinian Territory.

24. Charter, Article 23.

25. General Assembly XVIII (1968), Resolution 1991.

26. Charter, Article 109.

27. In Larger Freedom: Towards Development, Security and Human R i g h t s f o r All, UNGA Report of the Secretary General, A/59/2005, 21 M a r c h, 2005 (incorporating recommendations from United Nations Report of the High Level Panel on T h r e a t s Challenges and Change, A more secure world: Our S h a r e d R e s p o n s i b i l i t y, 2004).

28. Cullet, Philippe, Differential T r e a t m e n t in International Law: T o w a r d s a New P a r a d i g m of International R e l a t i o n s, 10.3 European Journal Of International Law (1999), 549.

–  –  –

Since i t s seventeenth Conference, to which these Proceedings are principally devoted, The Samuel Griffith Society suffered a tragic blow from the death, on 25 June, 2005, of its President, the Right Honourable Sir Harry Gibbs, GCMG, AC, KBE. A p a r t f r o m a n a r t i c l e w h i c h I w a s able to contribute on 1 July to The Australian (see below), and an a p p r o p r i a t e donation which the Society h a s made to Kidney Health Australia (in lieu of flowers, on the occasion of the State Memorial Service for Sir Harry in St. Stephen’s Church, Macquarie Street, Sydney on 11 July), there has been no opportunity for any more formal tribute from the Society’s members to the memory of the man who, since the Society’s inception, presided over i t and, in doing so, lent to i t the lustre of his name a n d reputation.

In editing these Proceedings I have therefore felt i t a p p r o p r i a t e – and I trust that members may agree – to include this short Appendix as a tribute to Sir Harry, on behalf of all members of the Society.

Since much of what I would wish to say in such a tribute has already been s a i d in t h a t newspaper a r t i c l e to which I referred above, and since in a l l probability the great majority of our members will not have seen it at the time, it may be best to begin by quoting it in full.

–  –  –

John Stone farewells Sir Harry Gibbs, a former chief justice of Australia and an avowed federalist.

“In The Knight’s Tale Chaucer describes his principal c h a r a c t e r a s ‘a verray, parfit gentil knyght’. There could hardly be a more apt description of the late Sir Harry Gibbs, who died in Sydney last Saturday aged 88, and whose r e m a i n s were c r e m a t e d in the u t m o s t privacy on Tuesday. Under his extremely f i r m i n s t r u c t i o n s, all public notice of his d e a t h was withheld until a f t e r h i s cremation. In death, as in life, he remained modest almost to a fault -- a truly perfect gentle knight indeed.

“Legal c o m m e n t a t o r s w i l l doubtless a t t e s t to S i r Harry’s greatness a s a judge -- f i r s t in the Supreme Court of Queensland, then in the Federal Bankruptcy Court, and finally during his 16-year career in the High C o u r t, including as Chief Justice from February,1981 until retirement in August, 1987.

“Others have previously assessed his j u d i c i a l standing. Lord Wilberforce, often described as the greatest English 20 th Century judge, who became a friend of S i r H a r r y ’ s a f t e r s i t t i n g w i t h h i m in the Privy Council, described h i m a s ‘essentially the professional Judge, p a t i e n t, receptive,….’, and s a i d t h a t he (Wilberforce) ‘was personally the better -- and the happier -- for having known him’. So were we all.

“That quote, from Joan Priest’s biography, Sir Harry Gibbs: Without Fear or Favour, accompanies another from a very different but also eminent Law Lord.

Lord Denning, often regarded a s a r a d i c a l, p a i d S i r H a r r y the supreme professional compliment of saying not only that ‘his work as Chief Justice was of the first quality’, but also that ‘I would rank him as one of the greatest of your Chief Justices, rivaling even…… Sir Owen Dixon’.

“I first met the Right Honourable Sir Harry Gibbs, GCMG, AC, KBE (to give him, rightfully, his full title) after he became Chief Justice. The National Debt Commission (since abolished) was then chaired, e x o f f i c i o, by the Chief Justice of t h e H i g h C o u r t, a n d t h e S e c r e t a r y to the Treasury was also, ex officio, a member. The Commission’s meetings were brief and formal, but his attention to detail and his unfailingly courteous conduct of proceedings were evident.

“When The Samuel Griffith Society was first conceived in late 1991, there arose the question of who should be its inaugural President. I ’phoned Sir Harry a n d, a f t e r e x p l a i n i n g t h e n a t u r e o f our e n t e r p r i s e, i n v i t e d h i m to a c c e p t t h i s wholly unpaid office in this wholly unknown body. Having examined our d r a f t S t a t e m e n t of Purpose (and indeed contributed to i t s final f o r m ) he readily accepted. Overnight, the Society became one which – all the animadversions of the bien pensants notwithstanding – could not be ignored.

“Why choose S i r H a r r y Gibbs in t h i s role? F i r s t, because the Society’s central purpose was to p r o m o t e d e b a t e a b o u t A u s t r a l i a ’ s C o n s t i t u t i o n f r o m a federal (i.e., anti-centralist) perspective. Even to one not learned in the law, it was obvious that Sir Harry had long been the outstanding judicial exponent of such a viewpoint. His dissent in the Australian Assistance Plan Case ( t h e W h i t l a m Government’s abuse of the A p p r o p r i a t i o n s power), his dissent in K o o w a r t a and, above all, his dissent in the Tasmanian Dams Case (the Hawke Government’s abuse of the external affairs power), a l l m a r k e d h i m out a s one respecting the fundamentally federal n a t u r e of A u s t r a l i a ’ s c o n s t i t u t i o n a l arrangements, and distrustful, on general civil liberties grounds, of the creeping concentration of constitutional power in that most un-Australian of our cities, Canberra.

“Incidentally, those concerned about the headlong rush of Commonwealth M i n i s t e r s i n t o a r e a s h a v i n g n o t h i n g t o d o w i t h t h e i r r e s p o n s i b i l i t i e s would do well to recall Sir Harry’s dissenting judgment in the AAP Case, where, as he truly said, the W h i t l a m Government’s i n t e r p r e t a t i o n of Section 81 (the A p p r o p r i a t i o n s power) was such t h a t, if accepted, i t would mean t h a t t h e Commonwealth could do anything i t liked merely by including a two line expenditure item in the relevant A p p r o p r i a t i o n s B i l l.

“During the following thirteen years The Samuel G r i f f i t h Society has held 17 weekend conferences. A p a r t f r o m t h e f i r s t, which he was forced to m i s s because of an unbreakable engagement in London (the i n s t a l l a t i o n in S t P a u l ’ s Cathedral of his personal heraldic banner as a Knight Grand Cross of the Order of Saint Michael and Saint George), Sir Harry attended all but the last two, in P e r t h a n d C o o l a n g a t t a, t o which, on medical advice, he was unable to t r a v e l.

F o r a l l t h o s e years he also presided, w i t h t h a t s a m e a t t e n t i o n to d e t a i l a n d that same unfailing courtesy, over our telephone hook-up Board meetings.

“From 1993 onwards, he composed each year an Australia Day m e s s a g e t o members of the Society, e d i t e d t e x t s o f some of which have appeared on The Australian’s Opinion page. Apart from contributing no less than eleven p a p e r s to our conferences, he also wrote for the Society several ‘tracts for the times’ on such issues a s the 1999 proposal to amend the Preamble to the A u s t r a l i a n Constitution.

“ L a s t year, Volume 16 of the Society’s Proceedings, Upholding t h e Australian Constitution, included S ir H a rry ’s A u s t r a l i a Day messages f o r 1 9 9 3 to 2000 (the 2001 to 2005 messages will a p p e a r in Volume 17). In a n introductory note I s a i d t h a t, ‘Over the years, those brief messages have conveyed, in S i r Harry’s c h a r a c t e r i s t i c a l l y l i m p i d prose, a wealth of w i s d o m distilled from the mind of one of Australia’s finest and most honourable public s e r v a n t s ( e m p l o y i n g t h a t p h r a s e i n i t s t i m e h o n o u r e d, and best, sense)’. They were ‘moderate, judicial (naturally), logical, incisive and pithily expressed’.

“Sir Harry’s messages were also often extremely topical. In 1993, when we were being lectured ad nauseam a b o u t o u r ‘ s h a m e f u l ’ p a s t by people laughably describing themselves as historians, how refreshing it was to read that: ‘During this century, in almost every continent t h e r e h a s been m a s s m u r d e r, i n h u m a n torture and a total denial of basic human rights on a scale rarely seen before in history. At the same t i m e A u s t r a l i a h a s enjoyed internal peace, order a n d stability – a bright beacon in a dark world’.

“ I n 1 9 9 4, a m o n g a l l t h e h a n d - w r i n g i n g t h e n ( a n d t o a lesser degree, still) prevalent w i t h i n the Aboriginal industry and i t s collaborators, consider t h e following words of calmly moderate reason: ‘No person of goodwill would fail to recognise t h a t Aboriginal people who suffer special d i s a d v a n t a g e s should be treated with justice and generosity. It is another question whether any class of persons should be granted special privileges, not to remedy t h e i r p a r t i c u l a r disadvantages, but simply because their ancestors suffered injustices. There is a danger that…….the result will be resentment rather than reconciliation’.

“A more recent (2002) message confronted squarely much of the nonsense spouted by refugee activists: ‘To acknowledge, as the Convention Relating to the S t a t u s o f Refugees provides, t h a t there should be no d i s c r i m i n a t i o n a g a i n s t refugees on the ground of race, does not mean that it would be in any way wrong in principle for a government to a d o p t a n i m m i g r a t i o n p o l i c y t h a t i s r a c i a l l y based so far as persons other than refugees are concerned’.

“Even more confronting to those thoughtless persons who, in the face of the mounting body of evidence a s to the non-viability of non-integrated societies, continue to insist that our immigration policy should be rigidly ‘multicultural’, are the immediately following sentences: ‘While it would be grossly offensive t o modern standards for a state to discriminate against any of its own citizens on the ground of r a c e, a s t a t e i s entitled to prevent t h e i m m i g r a t i o n o f persons whose culture is such that they are unlikely readily to integrate into society, or a t l e a s t t o ensure that persons of t h a t k i n d d o n o t e n t e r t h e c o u n t r y in such numbers that they will be likely to form a distinct and alien section of society, with the resulting problems that we have seen in the United Kingdom’ (and not only there).

“At a time when, in particular, legitimate questions are being increasingly r a i s e d about the c a p a c i t y of M u s l i m i m m i g r a n t s either to whole-heartedly embrace their fellow Australians, or to give their loyalty first and foremost to Australia rather than to their religious culture, these words continue to put to our government questions of a kind which i t a p p e a r s fearfully r e l u c t a n t t o answer.

“ A t t h e t i m e o f h i s s w e a r i n g i n a s Chief Justice, S i r H a r r y s a i d t h a t, i f Australia’s courts were generally trusted, ‘ i t is because they are seen to apply the law. Individuals and governments are not prepared to e n t r u s t t h e i r destinies to the whim of a few persons who will determine their controversies in accordance with their individual beliefs and principles’.

“ I t was S i r Harry’s unhappy f a t e, over the next 24 years, to observe a growing number of judicial persons doing just that – most grossly so in M a b o – w i t h consequences for A u s t r a l i a n s ’ t r u s t in t h e i r courts t h a t, a s his words implied, have predictably flowed from such activist behaviour”.

The a r t i c l e was accompanied, I should add, by a m o s t a p p r o p r i a t e photograph of Sir Harry, at his desk and surrounded by his books, and carrying the following caption: “ Modest almost to a fault: S i r H a r r y confronted those who insisted that our immigration policy should be rigidly ‘multicultural’ ”.

T h a t c a p t i o n, o f course, draws upon the passage, quoted in the a r t i c l e, f r o m S i r H a r r y ’ s A u s t r a l i a Day message to m e m b e r s f o r 2 0 0 2. T h a t m e s s a g e, along w i t h t h o s e for 2001 and 2003-2005, is included in Appendix II to t h i s volume of the Proceedings.

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