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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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I t g o e s w i t h o u t s a y i n g t h a t S i r H a r r y was held in t h e h i g h e s t respect by our members for his learning, his scholarship, and his transparent integrity of c h a r a c t e r. Beyond that, however, he was also regarded w i t h g r e a t personal affection. In May, 2003, at the outset of the Society’s fifteenth Conference, held in Adelaide (and as i t proved, t h e l a s t which, because of health problems, he was able to a t t e n d in person), the B o a r d of Management, on behalf of t h e membership and without Sir Harry’s foreknowledge, made a formal presentation to him.

The p r e s e n t a t i o n t o o k t h e f o r m o f four books, plus a “ r a r e ” copy of The Commonwealth of A u s t r a l i a Constitution Act t o g e t h e r w i t h t h e Debates and Speeches o n t h e s a m e i n t h e I m p e r i a l P a r l i a m e n t, published in 1900. Professor David Flint, who was entrusted by the B o a r d w i t h the t a s k of making t h e presentation speech, concluded by saying t h a t the Society made “ t h i s presentation to you, Sir Harry, as a small token of the esteem in which we hold you, and for the active leadership you have given to The Samuel G r i f f i t h Society,…….”. (The full text of Professor Flint’s remarks is given in Appendix I to Volume 15 of the Proceedings).

At a m e e t i n g on 6 July, 2005 the B o a r d of Ma na ge m e nt discussed, in a preliminary fashion, ways in which the Society might seek to commemorate our former friend and colleague. It resolved that, at the Society’s next Conference in 2006, arrangements should be made for the delivery of a lecture in his honour, to be known a s The S i r H a r r y Gibbs M e m o r i a l Oration, and t h a t t h i s O r a t i o n should be given on a regular basis (annually or biannually) at Society Conferences thereafter. It also resolved that some part of the 2006 Conference should be set aside for papers constituting a more general f e s t s c h r i f t in a p p r e c i a t i o n o f S i r Harry’s life and achievements.

That is all to the good. However, I personally believe that the power of Sir Harry Gibbs’s life and achievements is such as to live on in any c a s e f o r o t h e r reasons. Two examples spring immediately to mind.

This volume of our Proceedings c o n t a i n s, a t C h a p t e r N i n e, a p a r t i c u l a r l y i m p o r t a n t p a p e r b y M r B r y a n Pape, The Use and Abuse of t h e C o m m o n w e a l t h Finance Power, in which he forcefully t r a c e s the abuse by successive Commonwealth governments over the years of ss. 81 and 83 of the Constitution.

Beginning in a small way as early as 1926 in respect of the Commonwealth Aid Roads Act of that year, the abuse in question came to its first full flowering in the Australian Assistance Plan Act 1974, when the W h i t l a m Government (of c o u r s e ! ) p u r p o r t e d t o t a k e p o w e r t o m a k e g r a n t s t o various so-called Regional Councils throughout Australia. Encouraged by the weak and divided decisions o f a m a j o r i t y o f J u s t i c e s w h o heard t h e r e s u l t i n g H i g h C o u r t challenge by t h e State of Victoria in 1975, successive Commonwealth governments have continued to abuse the Appropriations power ever since, and the Howard Government not least.

Sir Harry’s dissenting opinion in the Australian Assistance Plan Case (AAP Case) w a s, a s a l w a y s, a m o d e l o f i n t e l l e c t u a l c l a r i t y a n d f e d e r a l c o n s t i t u t i o n a l principle. It is not, I believe, mere wishful thinking on my part when I say that h i s w o r d s i n t h a t d i s s e n t w i l l r i n g out a g a i n in some future challenge to t h i s increasingly flagrant abuse of Commonwealth power.

My second example is of a rather different kind. Two days ago, on Sunday, 17 July, 2005 the ABC TV Insiders p r o g r a m w a s l a r g e l y d e v o t e d t o t h e a f t e r m a t h of the London bombings by Islamist terrorists. In the course of that program its presenter, Mr Barrie Cassidy (formerly chief press secretary to Prime Minister Bob Hawke) put up on the screen the words occurring in the third paragraph of Sir Harry’s Australia Day 2002 message, which had been quoted in that article in The Australian reproduced above.

In doing s o, M r C a s s i d y d r e w p a r t i c u l a r a t t e n t i o n to w h a t h e called S i r Harry’s “prescient” reference, three years ago, to “the resulting problems that we have seen in the United Kingdom”, when “persons whose culture is such that they are unlikely readily to integrate into society” are allowed to “enter the country in s u c h n u m b e r s t h a t t h e y will be likely to f o r m a d i s t i n c t and alien section of society”. This very morning, here in Sydney, A u s t r a l i a ’ s m o s t prominent a n d h i g h e s t - r a t i n g r a d i o talk-back host, M r Alan Jones, quoted in full (twice, a t different points of his p r o g r a m on S t a t i o n 2GB) those same words of S i r Harry’s. I predict that, in this respect also, the latter’s “wealth of wisdom” will continue to be drawn upon by successive generations of Australians.

Let me conclude with those words quoted by S i r H a r r y ’ s biographer, Joan Priest, from Lord Wilberforce, who, as noted in my article in The Australian, i s often described as the greatest English 20 th C e n t u r y j u d g e. H e s a i d o f S i r H a r r y that he, Wilberforce, was “personally the better – and the happier – for having known him”. I believe that I speak for every member of our Society in saying that the same was true for us all.

Sydney 19 July, 2005

–  –  –

On the occasion of each Australia Day since the Society’s inception, our late P r e s i d e n t, t h e R t H o n S i r H a r r y G i b b s, f o r w a r d e d a n A u s t r a l i a Day m e s s a g e t o all members of the Society.

As explained in the Foreword to Volume 16 of these Proceedings, t h e opportunity h a s been taken, commencing with Appendix I t o t h a t volume, t o record these messages in the Society’s Proceedings. For reasons of space, t h a t Appendix was confined to Sir Harry’s messages for the years 1993 through 2000.

The messages for the years 2001 through 2005 are now recorded here. Sadly, they will be the last to be received from him.

Australia Day Message, 26 January, 2001

As we all know, this Australia Day occurs at a time when we are celebrating the centenary of the adoption of the Commonwealth Constitution.

The federation of the Australian colonies had the incidental benefit that it could not have been achieved without a written Constitution which provided for a bicameral legislature and which entrenched the position of t h e S t a t e s. T h e s e and other safeguards that the Constitution provides are not widely understood or valued. Politicians tend to chafe at the power of the Senate, which, it is true, sometimes a c t s capriciously, and businessmen sometimes a s s e r t t h a t they would prefer the uniformity of a centralised system to the diversity caused by conflicting State laws and regulations. However, since nowadays the Executive so often controls the lower House of P a r l i a m e n t, w i t h a u n i c a m e r a l l e g i s l a t u r e a government can readily become an elective dictatorship, whereas the existence of the Senate, and the division of power between the Commonwealth and t h e States, provide checks on the abuse of power.

The fact that our Constitution can be altered only by referendum has meant that no Australian government has been able to take advantage of a temporary m a j o r i t y in P a r l i a m e n t by altering the c o n s t i t u t i o n a l framework in a f u n d am en tal respect, w i t h o u t f i r s t obtaining the approval of the people. An Australian government could not follow the example so unconscionably set by the Queensland government, which in 1922 abolished the Legislative Council of that State, nor could it readily alter the nature of the Senate as the Blair Government in the United Kingdom has done with the House of Lords. The wish of a former Prime Minister to see the States done away with has remained a wish.

Our federation today is very different from that envisaged by t h e f r a m e r s of the Constitution. That has been due largely to decisions of t h e H i g h C o u r t, which since the 1920s have generally favoured central power, but in part also, to the acquiescence of t h e S t a t e s t h e m s e l v e s, which have agreed to u n i f o r m i t y o f action on a scale which would not be contemplated in the United States.

The competition policy, which all S t a t e s and the Commonwealth have adopted, is an example of t h i s uniform Commonwealth-State action. The insistence on competition no doubt is beneficial to t r a d e and commerce, b u t t h a t i s n o r e a s o n t o r e q u i r e t h e p o l i c y t o b e a p p l i e d t o a l l h u m a n a f f a i r s. The application of the policy to the legal profession has caused nothing but h a r m ;

for example, lawyers now advertise and tout for business on a grand scale, and i n s t i g a t e class actions whenever persons suffer a common misfortune. I t i s almost beyond belief that bureaucrats should seek to extend this doctrine to the medical profession in a w a y which m i g h t lower t h e q u a l i f i c a t i o n s of m e d i c a l specialists.

Although the nature of the federal compact has changed, the Constitution has enabled Australia to remain a free and democratic country, under the rule of law, during a turbulent century when much of the world suffered oppression, revolution or chaos.

N o t t o o u r s u r p r i s e, t h e m e d i a h a s p r o c l a i m e d t h a t w h i l e celebrating our centenary we should feel shame for the way in which the Aboriginal people have been treated in the past and for the unfortunate situation of some of t h e m a t present. The white settlement of Australia was inevitably a catastrophe for the Aborigines, because the two cultures t h a t came into conflict were millennia a p a r t in point of development. It would be h y p o c r i t i c a l, a s well a s futile, t o express regret or apology for the white settlement of A u s t r a l i a, which was of course the foundation of the existence of our nation.

There were individual crimes and blunders, a s there have been in a l l societies. Aborigines were treated a s an inferior race, which was an enduring h u m i l i a t i o n for them, and some policies of the governments may seem unacceptable to those who apply t h e s t a n d a r d s t h a t a t t r a c t popular s u p p o r t today; but it is absurd to judge the past in the light of present opinions.

A current m a t t e r o f grave concern is the s t a t e of Aboriginal health, b u t governments have made considerable efforts, and expended large sums of money, in trying to ameliorate that situation, and in a great many instances Aboriginal health is the product of the manner of living which those affected have adopted.

We may well feel pity or sorrow for the s t a t e of Aboriginal health, but not shame.

Surely we should be concerned when we consider what is likely to be t h e effect on the present generation of children of i n d o c t r i n a t i n g t h e m w i t h t h e belief that we are invaders, usurpers of the land of others, and that our history is a shameful one.

The truth is that our history is one of which we can be proud, and that we should feel nothing but gratitude to the framers of our Constitution.

I wish you all a happy Australia Day.

Australia Day Message, 26 January, 2002

I wish to say a few words about two issues of particular significance that fell for consideration during 2001 and that are likely to cause continuing controversy during 2002.

Opinions differ widely a s to w h a t should be done w i t h respect to t h e hundreds of people who, claiming to be refugees, seek to be smuggled, by b o a t, onto the remote islands, reefs and shores of Australia. The “Pacific Solution” – the interception of t h e b o a t s and t h e t r a n s p o r t of the boat people to v a r i o u s P a c i f i c i s l a n d s – h a s b e e n a d v e r s e l y c r i t i c i s e d i n t e r m s t h a t s o m e t i m e verge on the hysterical. One c r i t i c i s m, t h a t the policy of the Government is r a c i s t, i s quite ill-founded. Most of the boat people have come from central Asia, but that is n o t t h e r e a s o n f o r t h e i r e x c l u s i o n ; w h a t e v e r t h e i r race, they are prevented from making an unauthorised intrusion into Australia, particularly since their a t t e m p t is made in pursuance of a conspiracy to which each of t h e m i s necessarily a party.

To acknowledge, a s t h e Convention Relating t o t h e S t a t u s of Refugees provides, that there should be no discrimination against refugees on the ground of race, does not mean t h a t i t 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 is racially based so f a r a s persons other than refugees are concerned. While it would be grossly offensive to 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 n u m b e r s t h a t t h e y w i l l b e l i k e l y t o f o r m a d i s t i n c t and alien section of society with the resulting problems that we have seen in the United Kingdom. However, the “ P a c i f i c Solution” does not d i s c r i m i n a t e a g a i n s t the boat people on t h e ground of race.

The c r i t i c i s m t h a t the policy of the Government was in breach of i t s i n t e r n a t i o n a l o b l i g a t i o n s, r a i s e s m o r e d i f f i c u l t q u e s t i o n s. The 1951 Convention Relating t o t h e S t a t u s of Refugees (which h a s been extended by the 1967 Protocol to apply to all refugees, no m a t t e r w h e n t h e y a t t a i n e d t h a t s t a t u s ) f o r b i d s a s t a t e f r o m e x p e l l i n g a r e f u g e e l a w f u l l y w i t h i n i t s t e r r i t o r y, save on grounds of national security or public order. A refugee is defined a s a person who has left the country of his or h e r n a t i o n a l i t y w i t h a w e l l founded fear of persecution for reasons of race, religion, n a t i o n a l i t y or membership of a p a r t i c u l a r s o c i a l g r o u p o r p o l i t i c a l o p i n i o n. A p e r s o n i s a r e f u g e e i f he or she satisfies that criterion, and this will necessarily be before his or her status has been formally determined. The Convention does not prescribe how, when or where a f o r m a l d e t e r m i n a t i o n of refugee s t a t u s is to be made, indeed i t does not expressly require t h a t any such d e t e r m i n a t i o n should be made, a l t h o u g h a n obligation to make a determination might well be implied.

Obviously not all persons who claim to be refugees will in truth answer the criterion prescribed by the Convention. Literally millions of people in t h e T h i r d World seek to escape from their homelands and to settle in developed countries like Australia. Some do so because of a well founded fear of persecution, others to leave a society which is in a state of collapse, and others simply because they wish to enjoy the economic and social benefits which a developed society offers.

Many, even if refugees, wish to choose their preferred place of refuge, and pass through several countries where they would be free from persecution to seek t o enter a country such a s A u s t r a l i a, where they hope to enjoy the a d v a n t a g e s offered by a liberal society. The Convention recognises t h a t penalties may be imposed on refugees who are present in a state without authority and who have not come directly from a t e r r i t o r y where t h e i r life or liberty is t hre a t e ne d, unless such persons have presented themselves to the authorities without delay and have shown good cause for their illegal entry and presence. However, it does not seem to me to make clear whether such persons may be expelled.

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