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Winter 1999 cover

National Observer Home > No. 41 - Winter 1999 > Legal Notes

The Samuel Griffith Society

The Samuel Griffith Society was formed some seven years ago for the purpose of providing informed comment and analysis of constitutional and legal questions in Australia. It has performed this role in an exemplary manner. It has proceeded largely by holding annual conferences, where speakers of high quality have delivered papers. The papers are published in book form, and are to be recommended.

The Samuel Griffith Society, of which the President is Sir Harry Gibbs, a former Chief Justice of the High Court, and the Conference Convenor is Mr. John Stone, has an important function in the Australian legal system. There has been a regrettable tendency for the courts to be politicised. Instead of applying proper principles in the traditional manner, many judges have succumbed to the temptation to change the law in accordance with their own personal views. The best-known example of this tendency has been the unfortunate decision in the Mabo case, in which the majority judges in the High Court adopted an activist position and held, contrary to plainly established law, that native title existed in circumstances where it clearly did not exist.

Criticism of the Mabo Decision

The Mabo decision caused surprise and dismay in many legal circles. However lawyers, and barristers especially, are inhibited in expressing criticisms of judges. Barristers often hope for preferment, and also seek to avoid unpopularity with judges before whom they appear. In general therefore, little constructive analysis of High Court decisions can be expected from the legal profession, and legal academics in Australia have had a diminishing reputation over recent decades. In particular, during the governments of Messrs. Hawke and Keating many Australian academics apparently decided that the way forward was to follow government philosophies. Doubtless they benefited personally through this course, but at the cost of the legal system.

In this context a need for independent critical analysis became pressing in Australia, and particularly in regard to constitutional law and matters of general importance. This need has been fulfilled by the Samuel Griffiths Society. Indeed, all serious observers of political or constitutional and legal matters ought to familiarise themselves with the Society's publications.

The most recent publication of the Society, Upholding the Australian Constitution, is Volume 10 of the series, and sets out papers given at its Tenth Conference, in August 1998. It is useful to summarise those papers here, so that the full range of the Society's interests can be appreciated.

The Debate on the Monarchy

The first paper, by Sir David Smith, former Official Secretary to five Governor-Generals, discusses events leading up to the proposed referendum for a republic. He recalls for example that Mr. Keating's motivation was clearly anti-British and that Mr. Keating denounced those who disagreed with him as "lickspittles" and "forelock tuggers". Sir David provides a historical setting for the events leading up to and including the Convention on a republic of February 1998. He recalls Mr. Peter Costello's description of how Mr. Malcolm Turnbull came to him "like Nicodemus, by night to try and steal my vote on this, and said 'Don't worry about any of that: the Parliament can ignore it'". He comments at length on various recent statements by Sir Anthony Mason, correcting factually many of the errors made by Sir Anthony, who has proved to be one of the least satisfactory Chief Justices.

The paper by Dr. Suri Ratnapala, himself a republican, contains a critical analysis of the model that is to be presented at the imminent referendum. He favours the adoption of the American constitutional model, but is quick to acknowledge that he is not suggesting that this is politically feasible in the near term. He maintains that the retention of the hereditary monarchy can be justified only if it is seen as an "essential attribute" of the existing Westminster system, although it is not clear why this should be so.

Independence of the Judiciary

In the paper by Mr. David Russell Q.C. the republic issue is considered again. Mr. Russell also prefers the American constitutional model to the model to be presented at the imminent referendum, but he regards the existing constitutional monarchy as superior. In passing he discusses such important issues as the undesirability of appointing judges on political grounds or, indeed, on grounds other than merit. For example, he points out that Ms. Mc Murdo, a recent unexpected appointment as President of the Court of Appeal of Queensland, "was, prior to her appointment, junior to 21 Supreme Court Judges, 22 other District Court Judges and, had she continued in actual practice, 60 Queen's and Senior Counsel, as well as 50 junior counsel".

Any politicisation of the judiciary should, as Mr. Russell indicates, be a matter of concern. The independence of the courts has been assumed in Australia, but examples in other countries of politically motivated judges show how easily the rule of law can be undermined. In this context the appointment of Barwick C.J. was unfortunate, whilst the subsequent appointment of Mr. Lionel Murphy has left a stain upon the legal system that will fade only after many years.

Comparisons with Canada

In an interesting paper Mr. Ian Holloway discusses constitutional analogies between Australia and Canada.

As in Australia, in Canada a Governor-General is appointed to act on the Crown's behalf, and to carry out public functions in the Queen's stead. Mr. Holloway notes that in contrast to Australia, the formal position of the Crown in Canada seems quite secure. Section 41 of the Canadian Constitution Act provides that, in order for there to be a future constitutional amendment which would affect the position of the Crown, there must be unanimous agreement between the Federal Government and the Provinces, something which is likely to be very difficult to achieve.

Mr. Holloway's paper contains an informative and useful summary of recent constitutional initiations in Canada, leading to what he refers to as its "Balkanisation", with region pitted against region, and group against group. It illustrates how the pursuit of constitutional change can unexpectedly lead to deep divisions and resentments.

The Role of the Courts

A further paper, by the Honourable Peter Connolly Q.C., a former Supreme Court judge in Queensland, returns to the role of the courts. Specifically, should courts undertake a legislative role, as in the Mabo case?

Mr. Connolly's paper is concerned to show the dangers of judicial legislation. But he refers incidentally to some other interesting matters. Thus he indicates that the inappropriate emotive language used in the Mabo case had its unscholarly source in James Cook University. He also sets out comments of Kirby J. in the Wik case criticising the earlier decision in the Mabo case and showing that it was not in accordance with the law. He also discusses a number of decisions of courts in other countries, showing the different conditions that are found there and consequently differing responses to native title claims.

The Innovation of the Federal Court

In his paper Dr John Forbes discusses the vexed emergence of the Federal Court a little more that twenty years ago.

Dr. Forbes notes that for seventy-five years the Commonwealth survived without the existence of a Federal Court (which has now approximately fifty judges) or of a Family Court (which has now approximately the same number of judges, "chauffeur-driven at public expense"). Previously the matters now within the jurisdiction of these two courts were dealt with satisfactorily by the various Supreme Courts of the States.

It may be added here that there has been concern at the relatively poor quality of Federal Court decisions. That Court has a reputation for a lack of political detachment: Dr. Forbes points out that about four-fifths of its numbers were "appointed during the regnal years of Messrs Hawke and Keating". In fact, the Federal Court includes many judges of relatively little ability, and also judges whose political or social fervour clearly influences them unduly. For example, public comments of a political nature by Justices Alistair Nicholson, Marcus Einfeld and Ronald Sackville have attracted adverse criticism even in the popular press. The quality of Federal Court judgments is generally much lower than that of Supreme Court judgments in the various States. This is so, partly because Supreme Court judges are rarely politically motivated, and partly because Supreme Court judges are generally more careful, and more inclined to consider the relevant facts and law fully, than are Federal judges.

In effect, the setting up of the Federal Court has given rise to a large and expensive new judicial bureaucracy. It has acquired jurisdiction in trade practices and in company and tax cases (which are not handled well by it) and, unfortunately, exclusive jurisdiction under the Native Title Act.

Uncertainties in the Concept of Race

The Constitution specifically provides that the Commonwealth may legislate with respect to the "people of any race for whom it is deemed necessary to make special laws": section 51(xxvi).

In a further paper in this volume Dr. Colin Howard Q.C. discusses ambiguities of the term "race" and presents a case that the existence of this express power is inappropriate. First, he observes that the section operates to disadvantage seriously freedom of speech about a very important subject. Secondly, he notes the artificiality of distinctions between races and the questions of degree or judgement that are involved. One may observe that an example of this difficulty is seen even in the case of aboriginals. There are relatively few full-blood aboriginals and relatively many part-blood aboriginals. The latter may have an extremely small proportion of aboriginal blood. Where therefore does the aboriginal race start or end?

Dr. Howard is also concerned by the unfortunate consequences that sometimes follow race-based legislation. He goes on to criticise the Mabo case as creating in effect a race-based law. Further, he makes the important observation that race-based legislation encourages demands for independence. He notes, "Anecdotal evidence persists of the alarming extent to which remote parts of this country have apparently become 'no go' areas for non-Aboriginals since native title claims started to multiply." There are disturbing reports of increases in intimidation and threats of violence on the part of aboriginals.

United Nations Conventions

Mr. Barry Maley discusses the implications of the ratification and enactment in Australia of international treaties. In particular he discusses the United Nations Convention on the Rights of the Child, raising many of the concerns that are dealt with by Mr. Charles Francis Q.C. in his article in the next issue of National Observer.

Federal Renewal, Tax Reform and the States

Professor Brian Galligan heads the Centre for Policy Study at Melbourne University, and his paper contains an interesting discussion of the way in which the Australian States have, since federation, financed themselves vis-a-vis the Commonwealth.

Amongst other matters Professor Galligan criticises the High Court's broad construction of section 90 of the Constitution, which has prevented the States from imposing taxes on the sale or production of goods. As he points out, in regard to the term "excise," "the High Court has cut it loose and given it a scope and meaning that exceeds economic reason and interpretative sense". He views the proposed G.S.T., in so far as its revenue is to be handed across to the States, as going some way towards reforming fiscal federalism.

The financing of the States is also taken up by Mr. Alan Wood, of The Australian newspaper, in a related paper. He notes in regard to V.F.I. ("vertical fiscal imbalance") that "the Commonwealth now collects 76 per cent of all taxation revenue (80 per cent if we exclude local government), while accounting directly for only 56 per cent of total expenditures," whereas the States raise up to 20 per cent of total tax revenue but are responsible for 40 per cent of outlays. Mr. Wood appears to favour the levying of income taxes by the States, provided that there is "[n]o increase in the overall tax burden". That proviso, however, raises a central question. If the States impose income taxes, is there not a significant risk that total income taxation will rise markedly?

Federalism

A further paper, by Professor Geoffrey de Q. Walker, contains a drawing together of arguments in favour of a federal constitution in Australia. Professor Walker notes that federalism is becoming increasingly highly regarded and that "all the world's geographically large countries are now federations with the exception of China, and even that country has become a de facto federation by delegating more and more autonomy to the provinces".

Professor Walker examines the reasons for this re-assessment, including the discrediting of communist and socialist centralized governments. He comments on the fact that politico-legal anti-federalist elites have not kept pace with constitutional developments in other parts of the world.

A matter raised by Professor Walker is the inadvisability of concentrating power in a single institution: "By dividing sovereignty, the federal division of powers reduces both the risk of authoritarianism and the apprehension of it." He notes that in Australia the States help to preserve judicial independence and impartiality as well: "The existence of independent State court structures prevents a national government from filling all the courts in the land with judges believed to be its supporters." This comment has particular relevance in view of the court stacking of the Federal Court and the High Court during the governments of Messrs. Hawke and Keating.

Professor Walker's paper is an extremely valuable reference point for arguments in favour of federalisn, as opposed to a unitary system. It is well-footnoted, and it has a broad perspective which addresses tendencies in other countries, as well as the Australian position.

Aboriginals and Australian Apolegetics

An appendix to the papers comprises an occasional address given to the Samuel Griffith Society last year by Professor Kenneth Minogue, who lectured for many years at the London School of Economics. The subject of the address is "Aboriginals and Australian Apologetics," and in view of its importance it is set out in full in this issue of National Observer.

 The Samuel Griffith Society

From the proceeding analysis it may be seen that the Samuel Griffith Society is an important body which makes unique contributions on many critical matters of general public interest in Australia.

It should not be regarded as of interest merely to lawyers and political scientists. Rather it is relevant for all Australians with a serious interest in constitutional or political questions.

Membership and other enquiries should be directed to Box 178, East Melbourne, Victoria, 3002.

I. C. F. Spry

National Observer No. 41 - Winter 1999