The "bad" Roman Emperors
of the first two centuries---Caligula, Nero, Domitian and Commodus---habitually
had meted out to them, after their periods in office ended in
violent death, the fate known as damnatio memoriae. Fortunately, Sir Harry Gibbs lived
a long and productive life after his retirement from the High
Court in 1987, but from 1987, at least in some fastidious legal
circles, he has suffered a similar fate. He has been blamed for
faults he lacked, and criticised for lacking qualities he had.
It
is true that he has left no disciples. He has founded no school.
Modern counsel desperate for an argument have recourse to him,
but he is not much esteemed by modern courts. Yet he was one of
the greatest judges, and one of the greatest Australians, of the
20th Century. Time does not permit any demonstration of that thesis
in detail. The present audience is unlikely to dispute propositions
of that kind about our former President, who made such prodigious
efforts on the Society's behalf for so long. I want only to identify
a few of Sir Harry's characteristics, and correct a few misunderstandings
about him.
There
was in him no element of schizophrenia or of split personality.
There was no contrast of style and substance. He was a man of
complete integrity in every sense of the word---in particular,
all the qualities he exhibited operated in a mutually and harmoniously
integrated way.
Most
people will have had their first personal encounter with him in
court. There he was cool, mild-mannered, unpretentious and tactful.
He was quiet, unflustered, and, above all, unfailingly polite.
In
this he was generally thought to stand in contrast to his energetic
but combative predecessor, Sir Garfield Barwick, who was Chief
Justice for 17 years. You will recall Sir Garfield's characteristic
observations about his style at the Bar in his farewell remarks
on leaving the Court in 1981:
"I
early found that I liked talking to a judge and I liked him to
talk to me.... And I came to think that the silent judge, the
chap who would not speak to me, was almost anathema. I had to
devise means of making him talk. I may have succeeded in that.
No-one has ever had to stretch himself much to make me talk, I
am afraid, and no-one has had to work very hard to find out what
the tendency of my mind may be, and some that may have disturbed.
I am sorry if it has".1
Sir
Maurice Byers, in a speech farewelling Sir Harry in 1986, said
that Sir Garfield's style did not change on the bench:
"As a Judge he liked talking to
a barrister, particularly when the barrister was advancing his
argument. I don't mean to suggest that when putting an argument
you felt like a despatch rider delivering a message across no
man's land against a storm of shells and bullets---only that you
needed your wits about you to keep upright".
Sir
Maurice said that the first few times he appeared before Sir Harry
as Chief Justice:
"I was quite
disconcerted. It took me some time to spot the difference. I was
the only one talking. All the Judges appeared to be listening".2
In
temperament Sir Harry Gibbs was serene, calm, reasonable, balanced,
controlled, thoughtful and moderate. Apart from ample professional
learning across every field of the law, he had great wisdom, incisive
powers of analysis, quickness of thought and acuity of mind. He
was cultivated, fair minded, and in every way honourable. He was
deeply sensitive to sufferings and disappointments and purposelessness
in other lives---young people, for example, who could get no job
and could see no prospect of getting one, or who preferred the
dole to work.3 He deplored what he saw as widening
gaps between the standards of private and public schools,4
and widening unmerited inequalities between rich and poor.5
He was also deeply conscious of, and grateful for, the labours
of Australians in all walks of life over earlier generations---"an
inventive, self-reliant and very capable people".6
He disliked any criticisms of the present generation for laziness.
But he did not have a starry-eyed view of either the nature or
the destiny of man.
As
to human nature, he deplored the ravaging of modern Australian
society by crime, drugs and corruption, and the decline in standards
of responsibility, decency and consideration for others.7
He did not care for what he called "those wizards of law
and accountancy who, using alchemy in reverse, seek to transmute
the gold of income into the dross of something that is not taxable
or, even better, tax deductible".8 He would not
have sympathised with Jack Cassidy, QC, a great figure at the
New South Wales Bar in the 1950s and 1960s. When the late Justice
Peter Hely started at the Bar on Sir Jack Cassidy's floor, his
wife fell into conversation with Lady Cassidy at the first floor
function. Lady Cassidy said: "How is Peter getting on?".
Mrs Hely said: "He's finding it hard to pay the provisional
tax on his income". Lady Cassidy said: "Ah, Jack doesn't
have that problem. He gets paid in capital".
As
to human destiny, Sir Harry was not over-optimistic. He said:
"...
in a world where so much labour is marred by monotony and tedium
a man or woman engaged in professional activity has the opportunity
to do work which is often satisfying, interesting and useful as
well as modestly rewarding from a financial point of view and
a sensible person cannot hope for much more from his occupation
than that".9
Sir
Harry had humanity, humility, dignity and civility. But he also
had authority. He was vigorous, forceful, decisive, efficient,
energetic, steely and tenacious. He was fully capable of making
up his mind, unlike Sir Edward Davidson, Foreign Office Legal
Adviser in the years 1918-1929. Davidson was known in the Foreign
Office as "quoad Davidson", because when once asked
his opinion, he said that quoad Legal Adviser he thought one thing,
but quoad Davidson he thought something else.10 Sir
Harry could be direct to the point of bluntness. Neither in court
nor anywhere else did he admire irrelevance, arbitrariness, long-windedness,
affectation, pretentiousness, hypocrisy or emotion in others,
and he avoided all these things in himself. Although his personal
tastes and habits were of the simplest kinds, he took great care
with his appearance, his attire being as impeccable as his courtesy.
Sir
Harry was completely lacking in that common judicial vice, pomposity---unlike,
for example, Sir Reginald Long Innes, Chief Judge in Equity in
the Supreme Court of New South Wales in the 1930s. On one occasion
Innes was called to give evidence as a witness in some dispute.
The counsel who called him was a rather rough common lawyer who
did not like him. Examination in chief usually opens with witnesses
giving their names and occupations. This examination in chief
began as follows: "What's your name?". With massive
self-importance, as if disclosing a most portentous and significant
truth, the witness said: "My name is Reginald Heath Long
Innes, knight". Counsel then asked: "And what do you
do for a living, Mr Knight?".
Manner
in private
This
summary suggests that Sir Harry had a remote and wintry personality,
but informal contact revealed this to be illusory. Although shy
and unassuming, he was approachable, good humoured and friendly.
In an address delivered on the occasion of the centenary of Sir
Owen Dixon's birth, he said that soon before Sir Owen's death
he took Mr Justice Walsh, whom Sir Owen had not met, to see him
at Hawthorn, "where Sir Owen entertained us with some candid
descriptions of his predecessors on the Court".11
To describe Sir Owen as "candid" in reminiscence is
to speak with some euphemism, of course, but like Sir Owen, Sir
Harry liked discussing the human comedy, particularly so far as
it was reflected in the affairs of lawyers and judges. He enjoyed
telling candid anecdotes of his own in his distinctive voice---rasping
but not unattractive---about "Gar", or about the strange
remark addressed to him by James Callaghan at Buckingham Palace,
or about many other incidents in his long life.
In
short, while in many respects no doubt the label "conservative"
fitted him, any overtones it bears of hard, grasping, selfish
indifference to the existence and difficulties of others were
quite alien to him. They are also negated by the warm family life
he and Lady Gibbs experienced with their four children.
There
were other respects in which the label "conservative"
did not fit. Some will be identified below, but one can be noted
here. He was a monarchist and a Privy Councillor, he sat on the
Privy Council, and he enjoyed doing so. He respected his colleagues
as "eminent and well-known lawyers experienced in the common
law".12 Yet in 1981 he opposed the retention of
Privy Council appeals in non-federal matters from courts other
than the High Court as "anomalous and anachronistic".13
He had probably come to this view, like Sir Garfield Barwick,
years earlier. He said:
"Although
I would in many ways sincerely regret the breaking of this tie
with the nursery of our laws, the present situation can hardly
continue for long".14
Nor,
indeed, did it.
When
Joseph Chamberlain died, Asquith said of him in the House of Commons:
"As has been
the case with not a few great men, speech, the fashion and mode
of his speech, was with him the expression and the revelation
of his character".15
The
same was true of Sir Harry. He had a remarkable prose style---pithy,
terse, precise, crisp, trenchant, undecorated and unambiguous.
In one of Sir Harry's last cases as a barrister before the High
Court, Sir Owen Dixon delivered a dissenting judgment rejecting
his contentions. But that judgment took the unusual course of
congratulating him on what it called his "very clear argument".16
Above all, Sir Harry's judgments had pellucid clarity. Sir Maurice
Byers said of his clarity:
"This
is at once the most difficult of skills to master and the writer's
most precious gift to the reader. There is about almost every
judgment of Sir Owen Dixon that I have read a slight haze of ambiguity,
a hint of baffling distances and remote horizons. A Gibbs judgment
is crystal clear".17
What
Prince Ranjitsinhji said of W G Grace was true of Sir Harry: he
made "utility the criterion of style". It is common
for barristers to seek to start their researches by asking, "What's
the principle?"; or saying, "Let's go to first principles".
They then hunt for a short and forceful statement of the point
in a book or judgment. Once found, that statement triggers unconscious
recollection, and leads off into veins of learning to be mined
for their valuable ore at leisure. In this process the wise lawyer
took Sir Harry's judgments as the first port of call. To read
a judgment of his is to be taken on a businesslike journey, without
preliminary throat clearing or the erection of scaffolding, without
any fuss or unnecessary elaboration or excursions into side issues,
through the crucial questions to the end. The saying goes that
if it is not clear, it is not French; it is certainly true that
if it is not clear, it is not Gibbs.
While
Sir Harry was on the High Court, it was commoner than it is now
for each Judge to deliver a separate judgment, rather than the
majority judgment being joint. For the reader joint judgments
are dangerous. Reviewers say that it is important never to be
rude about the autobiographies of sporting stars, because you
never know who wrote them. The same is true of joint judgments.
The relative rarity of joint judgments in Sir Harry's time means
that posterity can enjoy his own prose, unpolluted by other hands.
The quality of that prose was of the first importance for a defender
of the rule of law.
Sir
Harry Gibbs came to the High Court with numerous advantages. One
was a good school and university education, which gave him wide
literary and historical interests. They were reflected, for example,
in his address to the Johnson Club, Brisbane, on 13 December,
1984, the 200th anniversary of Dr Johnson's death. The address
revealed a deep knowledge of that astonishing man and his times---a
man, incidentally, who shared more than one quality with Sir Harry.
Another advantage was six years in the Australian Army, including
time at the front in New Guinea, for which he was decorated.
He
had spent 16 years at the Bar. For quite a number of those years
he carried out part-time law teaching at the University of Queensland,
an activity that provides an opportunity for grasping, organising
and stating simply the most fundamental aspects of legal principle.18
He had a father who had been, and a brother who was, engaged in
politics. He had spent six years doing all the work falling to
a judge of the Supreme Court of Queensland at trial and on appeal,
and three doing the work of a Federal bankruptcy and Australian
Capital Territory judge. He thus had a wide acquaintance with
human affairs. But there was a specific aspect of his background
which was very important.
He
had been brought up in Ipswich, a locality, of course, associated
also with Sir Samuel Griffith, with a former Governor-General,
and with the most famous female politician yet produced by this
country. He lived there at a time when it was quite separate from
Brisbane, having a distinct character as a mining and industrial
city. His education at the University of Queensland, which he
remembered with gratitude and affection, took place at a time
when the University was very small and its Law School had just
started, after a period when Queenslanders wanting a university
education in law had to go south. Brisbane itself only had a population
of 313,000.19
The
time of his youth and early adult life was a time of limited communications,
difficulties in travel, and a very small federal judiciary, not
seen much outside Sydney and Melbourne. It was a time when citizens
drew life from their local regions. They were provincial when
provincialism gave strength---probably it still does, but they
gloried in their provincialism. Their ties to State governments
seemed closer than their ties to the federal government. He understood
deeply and instinctively the immense differences between the life
and world view of residents of Queensland, living in its many
large and small country towns scattered over vast distances with
great variations in climate, topography and economic activity,
and the life and world view of residents of already huge and ever-growing
cities like Sydney and Melbourne. He knew the variegated make-up
of the Queensland population, as did Arthur Fadden, who when Italy
attacked France in June, 1940 was approached by an agitated constituent,
the owner of a fruit shop. The constituent said that an angry
mob had wrecked the shop and called him an Italian bastard. Artie
Fadden sympathised. The unfortunate man protested: "But Mr
Fadd, I no the Italian bastard, I the Greek bastard".
Just
as Sir Harry cannot have liked the modern tendency of the Sydney-Melbourne
vortex to suck people away from other parts of Australia, so he
disliked the tendency of the Canberra vortex to suck governmental
power away from the regions. He would have responded sympathetically
to the future Mr Justice Crawford, who welcomed him at his first
sitting in Tasmania as Chief Justice with the words:
"Your Honour
comes from a State like Tasmania, somewhat distant from the centre
of affairs in this country".20
In
short, although he left Queensland in 1967, he remained a Queenslander,
and Queensland was of his very being.
For
Sir Harry one element of "the rule of law" was the idea
that "cases, civil or criminal, are decided by applying legal
rules, antecedently established, to facts dispassionately found".21
To that succinct statement he added other elements:
"..... that
no-one however powerful is above the law, that no-one however
humble can be made to suffer in person or property except in accordance
with the law and that the law is administered openly with complete
independence and with reason and moderation".22
In
this way order and liberty could be balanced---"order, without
which no civilisation can exist and liberty, without which existence
may lose much of its value".23 As one who had
witnessed the Battle of Brisbane in 1942 between Australian and
American troops, he knew something about the consequences of anarchy
and had little doubt about its vices. He admired Australian courts;
they:
"..... display
a genuine respect for the liberty of the individual citizen and
are able to stand between the weak and the strong and to prevent
the rights and freedoms of the individual from being subordinated
to the interest of the State, or to powerful groups within the
State".24
These
criteria called for independence in judges. But that independence
had to be rooted in principle. Temptations to search for expedient
results for individual litigants or to use the litigation "to
reshape society" had to be resisted.25
"A Justice,
unlike a legislator, cannot introduce a programme of reform which
sets at nought decisions formerly made and principles formerly
established".26
He
thought it wrong to elevate "into legal principles one's
own idiosyncratic views of justice". He deplored "using
a computer to scour the law books of the world, from Wyoming to
Swaziland, in the hope of finding some pronouncements that will
fit one's preconceived notions".27
These
are statements which his critics would expect him to have made
and think the less of him for making. But he was not averse to
the orderly development of the common law, particularly in the
light of technological change. An example may be taken from the
law of evidence, on which he was an expert.
From
the 1970s, concern began to grow about police reliance on unsigned
records of interview. On the High Court, Murphy J began to reveal
it from 1975.28 With respect, this was to be expected,
given the particular attitudes and interests of that judge. But
his principal High Court ally came to be Gibbs J, who from 1977
advocated the use of aural or video-tape recording of police interrogation,29
and who began to develop, and stimulate others to develop, principles
restricting the admissibility of confessions the making of which
is not corroborated. These principles are now partly found in
case law and partly in legislation more recently introduced in
all jurisdictions. The near universal use of video recording has
proved a boon to accused persons who have not made admissions,
has saved courts much time in hearing arguments about whether
confessions were made and whether they are admissible, and has
proved extremely disadvantageous to many guilty persons, for their
videotaped confessions tend to have a much more damning impact
on the trier of fact than the impersonal and sometimes questionable
record of a police officer's notebook.30 Murphy J and
Gibbs J may seem strange allies on this issue, but only to those
who have become unduly blinkered by paying excessive attention
to slogans and stereotypes.
He
was conscious of many factors which were capable of eroding the
substance of the rule of law while leaving its form in place.
They included very high legal costs caused by, among other things,
the rise of mega firms of solicitors, coupled with the limited
availability of legal aid; delay caused by the excessive duration
of litigation; the incompetence of lawyers; the ill-effects of
fusion between barristers and solicitors; and "the suggestion
... that contingency fees might be charged" which, he said,
"is one that I could not possibly support".31
But he paid particular attention to factors adversely affecting
the courts directly---the creation of new federal courts, with
"resulting tangles of jurisdiction", many of which had
to be dealt with during his Chief Justiceship;32 the
creation of special tribunals to deal with special subjects, which
"may tend to narrow the vision and perhaps heighten the zeal
of the members and cause them to lose a proper sense of proportion";33
and the damaging impact of a Bill of Rights on judicial independence
and the general work of the courts.34
Sir
Harry's particular concern related to incompetence in the judiciary,
for he thought it was vital to protect the public from insolence
in judicial office as well as other forms of office. He was troubled
by the risk of incompetence existing in judges appointed for reasons
other than merit.35
Sir
Harry several times36 identified 1946 as the time when
judicial appointments in England ceased to be political. He identified
the author as Lord Jowitt, Lord Chancellor in the Attlee government.
That some earlier appointments had been political cannot be doubted.
Even so great a statesman as Lord Salisbury had, with his characteristic
mixture of cynicism and self-mockery, explained that while one
day great judicial officers like the Master of the Rolls might
"be appointed by a competitive examination in the Law Reports",
for the moment to ignore the claims of party "would be a
breach of the tacit convention on which politicians and lawyers
have worked the British Constitution together for the last two
hundred years".37 But not even Lord Salisbury's
addiction to the old ways caused him to believe that this was
an ideal system.
If
it was Lord Jowitt who effected this beneficent change in it,
it is not surprising. Old Tories used to say of Churchill: "Some
of us have been members of the Conservative Party longer than
Winston, but none of us so often". But Churchill only changed
his party twice. Lord Jowitt did it four times. In 1929 he was
elected to the House of Commons as a Liberal, but accepted the
offer by the Labour Prime Minister, Ramsay MacDonald, of the Attorney-Generalship.
He joined the Labour Party, stood again as a Labour candidate
and won. In August, 1931 he was expelled by the Labour Party for
joining the National Government, and in the ensuing election stood
unsuccessfully as a National Labour candidate. In 1932 he unsuccessfully
sought a Conservative seat. In 1936 he was readmitted to the Labour
Party.
Jowitt's
acceptance of the Attorney-Generalship in 1929 at the hands of
the Labour Prime Minister had led to an unpleasant scene between
himself and his erstwhile party leader, Lloyd George. Whatever
his faults, Lloyd George had a long memory. Six months later,
in a debate on the Coal Mines Bill, after Jowitt had spoken as Attorney-General,
Lloyd George said: "As the Attorney-General has reminded
us---and who should know better?---those who are genuinely seeking
work cannot discriminate in the jobs which are offered them".38
A Lord Chancellor with this supreme indifference to questions
of political conscience was obviously the ideal man to introduce
complete political neutrality into judicial appointments.
One
aspect of the rule of law which Sir Harry Gibbs valued and sought
to foster was reasonable certainty and stability. A well-known
illustration can be found in the First Territories Representation
Case.39 The High Court by a 4:3 majority upheld
legislation providing for the Australian Capital Territory and
the Northern Territory each to elect two Senators. Gibbs J was
one of the dissenters. He did so on the ground that when s. 7
of the Constitution provided that the "Senate shall be composed
of senators for each State", it did not mean that it was
merely to include Senators from each State, but was to be composed
of them exhaustively. Section 122 permitted the Parliament to
make laws allowing the representation of Territories in either
House for the Parliament "to the extent and on the terms
which it thinks fit". However, he held that those words had
to give way to s. 7: while s. 122 permitted the election of representatives
of Territories to the Senate they could not be Senators. He saw
that conclusion as flowing as a matter of language and by reason
of the central role of the Senate as the States' house in the
legislature.
The
Second Territories Representation Case40
concerned the same legislation as did the First Territories
Representation Case,
and also concerned legislation providing for the Australian Capital
Territory and the Northern Territory to be represented in the
House of Representatives by two members each. The argument for
the invalidity of the latter legislation was that s. 24 of the
Constitution confined membership of the House of Representatives
to members chosen by the people of the Commonwealth in the States.
Although
this argument was not formally inconsistent with the reasoning
of the majority in the First Territories Representation Case, it was inconsistent in substance. And
so far as there was a challenge in the Second Territories Representation
Case to the decision of the first in relation
to Senators, there was complete inconsistency. The only reason
the argument was advanced was that one member of the majority
in the First Territories Representation Case, McTiernan J had retired, and his replacement,
Aickin J was thought likely to take the minority view in that
case. So he did. But the outcome did not change, because although
Barwick CJ adhered to the dissenting stand he had taken up in
the First Territories Representation Case and, like Aickin J, declined to
overrule it, Gibbs and Stephen JJ decided to follow that case
rather than overruling it, despite their disagreement with it.
Gibbs J did not see it as a sufficient reason to overrule the
First Territories Representation Case "that one Justice has gone and
another has taken his place".41 He said:42
"No
Justice is entitled to ignore the decisions and reasoning of his
predecessors, and to arrive at his own judgment as though the
pages of the law reports were blank, or as though the authority
of the decision did not survive beyond the rising of the Court....
It is only after the most careful and respectful consideration
of the earlier decision, and after giving due weight to all the
circumstances, that a Justice may give effect to his own opinions
in preference to an earlier decision of the Court".
He
did not see the earlier decision as having been given in ignorance
of some authority or principle, or as being in conflict with other
decisions of the Court. All arguments advanced in the Second
Territories Representation Case had been fully considered in the First
Territories Representation Case;
and the First Territories Representation Case
had been acted on, in that Senators had been elected under the
legislation.
Sir
Harry Gibbs showed that same quality---subordination of personal
opinion to duty---in two of his earliest decisions on the Court.
In Kotsis v. Kotsis43 he held that a registrar
of a State court could exercise federal jurisdiction conferred
on that court, but was in a minority of one. When the same issue
arose soon afterwards in Knight v. Knight,
he said: "I could not agree with the conclusion but I am
bound by the decision".44
Sir
Harry's adherence to the values of certainty and stability is
illustrated in a different way by Viro v. The Queen.45
The question was how a jury should be directed in murder cases
where the issue of self-defence arose. One set of directions was
favoured by Stephen, Mason and Aickin JJ. The other four justices
disagreed, but without agreeing on a single position. Gibbs J
decided in the circumstances that it was better for him to depart
from the view he personally preferred and support that of Stephen,
Mason and Aickin JJ. He said:
"We would be failing in our function
if we did not make it clear what principle commands the support
of the majority of the Court. The task of judges presiding at
criminal trials becomes almost impossible if they are left in
doubt what this Court has decided on a question of criminal law".
Sir
Harry Gibbs saw the Constitution as having seven vital characteristics---six
positive, one negative. The six positive characteristics were
that it created a system of government which was indissoluble, federal,
monarchical, with
a bicameral federal legislature, to which the executive
was responsible, and regulated by the judicial power of the Commonwealth, which gave to the
High Court, ultimately, the power to invalidate legislative and
executive actions which were unconstitutional. The seventh, negative,
characteristic was that the Constitution contained no general
bill of rights.46 It is fairly plain that
Sir Harry approved of each of these characteristics. No controversy
affecting the first, third, fifth, sixth or seventh came before
the Court in his time. However, the third---the monarchical element---affected
some of the Justices other than himself in different ways in November,
1975, and he himself was greatly concerned to defend it after
he retired. He saw the second---the federal element---and the
fourth---the bicameral character of Parliament---as closely related,
and numerous controversies about them came before the Court in
his time. Although he approved of these two features, he deplored
the extent to which, by the time he came onto the Court, the position
of the States had weakened in relation to the Commonwealth.
He
considered that the only basis on which the people of the colonies
would have agreed to unite was a federal basis, and that to this
day no majority of electors in a majority of States could be found
to support any change to a unitary system. He saw the key conception
as being that the central government should have powers in matters
of national concern, while in matters of regional concern the
States---the constituent members of the federation---should have
power.47 He saw the States as "neither subjects
of the Commonwealth nor subordinate to it".48
On
the other hand, he accepted that in terms of legislative power,
to some degree the Commonwealth was placed in a "position
of supremacy, as the national interest required", by reason
largely of s. 109, providing that Commonwealth laws validly made
under the 39 heads of power conferred by s. 51, for example, should
prevail over State laws to the extent of any inconsistency between
them. But he said in one of his earliest High Court judgments,
the Payroll Tax Case:
".....
it would be inconsistent with the very basis of the federation
that the Commonwealth's powers should extend to reduce the States
to such a position of subordination that their very existence,
or at least their capacity to function effectually as independent
units, would be dependent upon the manner in which the Commonwealth
exercised its powers, rather than on the legal limits of the powers
themselves".49
For
that reason there were implications in the Constitution as to
the manner in which the Commonwealth and the States respectively
could exercise their powers vis-à-vis each other. Thus
he said that a "general law of the Commonwealth which would
prevent a State from continuing to exist and function as such
would ... be invalid".50
Sir
Harry applauded the slogan which Barton had used while campaigning
for federation---that for the first time in history there would
be a continent for a nation and a nation for a continent.51
That was a true statement, for while the United States and Canada
were of continental size, each actually occupied only half a continent,
Canada contained two nations, and the Russian Czars ruled many
nations. Sir Harry would also have been familiar with Roscoe Pound's
aphorism that countries of continental dimensions can only be
ruled as either federations or autocracies. His Queensland origins
and attachments must have helped influence his antipathy to strong
central power.
However,
in the course of his own lifetime, even before he became a judge,
the States had lost ground in many significant respects.
First,
shortly after he was born, the Engineers' Case had
overthrown two key doctrines advanced by the first three Justices
of the High Court which favoured the States. One was the doctrine
of "implied immunity of instrumentalities", which was
thought to prevent the States and State offices from being taxed.
The other was the doctrine of reserved powers: the doctrine that
from the allocation to the Commonwealth of specific legislative
powers in s. 51 could be inferred the existence of other powers
reserved to the States. For example, it was said that s. 51(i)
gave the Commonwealth power to legislate over international and
interstate trade; that implied a prohibition on interfering with
State powers over intrastate trade; and in turn it was said that
other s. 51 powers should be interpreted in such a way as not
to destroy the implied State power over intrastate trade.52
These
doctrines were said to be erroneous in 1920, in the Engineers'
Case.53 The overthrow of the "implied
immunity of instrumentalities" doctrine was less important,
since it has come to be replaced by another principle serving
a similar function, although in a weaker form. But the fall of
the reserved powers doctrine seriously altered the federal structure.
Sir Harry thought the case was "a prime cause of the decline
of federalism in Australia".54
A
second development adverse to the States arose from the attachment
of conditions to grants made by the Commonwealth to the States
under s. 96 of the Constitution. This had the effect of giving
the Commonwealth some influence over or control of policy in fields
like education and health over which it had no direct legislative
power.
A
further development was the legislative termination in 1942 of
a double system of federal and State income taxes, and its replacement
by the Commonwealth as the sole levier of income tax in return
for reimbursement to the States of the sums lost.55
Another
fiscal development adverse to the States took place in relation
to s. 90 of the Constitution, which prevents the States from levying
duties of excise. High Court decisions widening the conception
of a duty of excise tended to squeeze State access to indirect
taxes,56 and to force the States to develop an artificial
system of fees for licences to carry on business in the future
levied by reference to past periods. This system was approved
by the High Court in two cases argued in succession, Dennis
Hotels Pty Ltd v. State of Victoria57
and Whitehouse v. State of Queensland,58
in the second of which H T Gibbs, QC was the successful counsel.
Ex-barristers are often proud of, and defensive about, their forensic
children, but this particular favoured child of victory, though
never spurned by its father, came under increasing disfavour in
Sir Harry's time on the High Court, although it survived until
1997, well after his departure.59
Sir
Harry summarised these developments as leading to "a lessening
of financial responsibility on the part of the States and a duplication
of governmental functions as the Commonwealth bureaucracy expands
its empire into State territory".60
Another
area of increased Commonwealth power which Sir Harry found particularly
distasteful related to s. 51(xxxv), giving the Commonwealth legislative
power over conciliation and arbitration for the prevention and
settlement of industrial disputes extending beyond the limits
of any one State. On this Sir Harry cast a cold eye:
"My
predecessors on the High Court, by a series of decisions marked
by a metaphysical subtlety of reasoning that would have delighted
a medieval schoolman, invented a doctrine of paper disputes which
has had the result that disputes which to the uninitiated might
appear to be purely local in character have been held to extend
beyond the limits of one State. The Commonwealth Conciliation
and Arbitration Commission has thus acquired power to affect the
wages and working conditions of most workers in Australia. It
is something of a legal oddity that an instrumentality created
by the Commonwealth Parliament has power to bring about economic
results which the Parliament itself cannot achieve".61
All
these developments took place during or were foreseeable in the
period of Sir Harry's pre-judicial lifetime. They were the result
of a mixture of legal and practical factors classically summarised
by Windeyer J in the Payroll Tax Case,
one of the first High Court cases in which Sir Harry sat.62
Windeyer J said that at federation Australia:
".....
became a nation. Its nationhood was in the course of time to be
consolidated in war, by economic and commercial integration, by
the underlying influence of federal law, by the decline of dependence
upon British naval and military power and by a recognition and
acceptance of external interests and obligations. With these developments
the position of the Commonwealth, the federal government, has
waxed; and that of the States has waned. In law that is a result
of the paramount position of the Commonwealth Parliament in matters
of concurrent power. And this legal supremacy has been reinforced
in fact by financial dependence. That the Commonwealth would,
as time went on, enter progressively, directly or indirectly,
into fields that had formerly been occupied by the States, was
from an early date seen as likely to occur. This was greatly aided
after the decision in the Engineers' Case ....".
The
pace of such developments quickened during Sir Harry's judicial
lifetime. From its inception, the Gorton Government which appointed
Gibbs J to the High Court showed signs of a desire to widen the
exercise of federal power. Coming events cast their shadows before,
and these signs multiplied under the Whitlam Government and all
succeeding Commonwealth governments.
These
changes, then, arose through non-legal and legal factors. Among
the non-legal factors which changed the position of the States
were, for example, improvements in transport and falls in its
cost: this increased interstate trade, and widened the trading
field open to federal regulation. Some of the non-legal factors
depended on political desire. Once the Commonwealth government
was happy to make generous provision for the States by grants
or by taxation arrangements provided the States accepted appropriate
conditions, the de facto
power of the Commonwealth was bound to rise. Indeed, Deakin had
foreseen this in 1902, when he said that the Constitution had
left the States "legally free, but financially bound to the
chariot wheels of the Commonwealth".63
As
we have seen, Sir Harry deplored this, but it was a matter outside
his control, because by the mid 1970s the will of politicians
to exercise their powers to the full was becoming very strong.
In England it was the age of Mrs Thatcher. When Lord Carrington
was asked, "What will happen if Margaret is run over by a
bus?", he answered grimly, "It wouldn't dare".
A similar political will on occasions began to show itself here.
What upset Sir Harry more than a strong political will to use
uncontroversial powers to the full was the employment of what
he saw as invalid legal reasoning to disturb "the federal
balance of the Constitution", to use a phrase much employed
by him.64
Apart
from legal developments which either had been controversial, like
the Engineers' Case,
or remain so, like the widening of "excise" or s. 51(xxxv),
there were of course legal factors which had inevitably and uncontroversially
changed the position of the States. They included the rendering
invalid, under s. 109 of the Constitution, of State laws inconsistent
with Commonwealth laws enacted pursuant to entirely uncontroversial
exercises of legislative power pursuant to the heads of power
in s. 51---for example, many fields of commercial and intellectual
property law, family law, and laws relating to postal, telegraphic,
radio and television services. Sir Harry did not criticise these
trends. Indeed, he himself was to participate in them.
Sir
Harry is sometimes represented as always taking the position most
adverse to Commonwealth power in any case he heard. That is not
correct. Take the Concrete Pipes Case.65
On 30 June, 2005, The
Sydney Morning Herald, in discussing his career, informed
its readers:66
"For
most of [the Whitlam-Fraser period] of expansiveness in Commonwealth
powers, Gibbs was in the minority.
"In
the Rocla Concrete Pipes Case,
which enlarged the corporations power---constitutionally a move
from the ice age to the concrete age---Gibbs was in the minority".
The
imputation is that Sir Harry, unlike the forward looking majority,
remained in the ice age. The fact is that all of the Justices,
including Gibbs J, considered that s. 51(xx) of the Constitution
gave the Commonwealth power to enact a law to regulate the trading
activities of foreign, trading and financial corporations for
the purpose of preserving competition in trade. The difficulty
was that the key provisions of the Act were drafted so as to apply
to all persons, not just these corporations. A majority of the
Court held that it was not possible to employ s. 7 of the Trade
Practices Act 1965 and s. 15A of the Acts Interpretation
Act 1901 to read down the key provisions
so as to apply only to those corporations, and to rest on other
heads of power such as the trade and commerce power, the power
to regulate dealings with the Commonwealth, and the Territories
power. Gibbs J took the contrary view,67 and McTiernan
J briefly agreed.68 Thus while it was true to say that
Gibbs J was in the minority, it would have been even truer to
say that he voted for a more expansive exercise of Commonwealth
power than the majority did.
Another
example of the fact that Sir Harry cannot be represented as a
last-ditch opponent of all exercises of Commonwealth power is
Murphyores Inc Pty Ltd v. The Commonwealth.69
The High Court held that a regulation prohibiting the export of
minerals without Ministerial approval was valid under s. 51(i)
(which gives power to legislate on international trade and commerce),
and that it was open to the Minister to take into account not
merely matters of trade policy, but also the environmental impact
of mining and processing mineral sands so as to extract the minerals
to be exported. The High Court accepted the Commonwealth's argument
that if a prohibitory law is within power, it does not matter
whether the grounds for relaxing the prohibition relate to matters
within that power.
The
High Court was unanimous. Gibbs J agreed70 with Stephen
J and Mason J. Stephen J said it was not necessary for the
factor appealing to the Minister as a ground for granting or refusing
consent to be a ground relevant to international trade or commerce,
or any other head of Commonwealth legislative power.71
Mason J said that the regulation was wide enough to include environmental
factors as relevant,72 and that even so widely construed,
it was not beyond s. 51(i): the law remained a s. 51(i) law whatever
the motives which inspired it or the consequences which flowed
from it.73
That
case refutes another fallacy which has attached itself to Sir
Harry's memory. In hindsight popular myth tends to position Mason
CJ as the leader of centralist thought, and Gibbs CJ as the leader
of anti-centralist tendencies. The Murphyores Case,
where they were at one, demonstrates that that myth too must be
qualified.
Some
of the trends noticed by Windeyer J in the Payroll Tax Case and deplored by Gibbs J were not to
reach their apotheosis until after the retirement of the latter,
like the striking down of State indirect taxes as being duties
of excise in Ha v. New South Wales.74
But
many were in full flood before his retirement. Two may be noted
briefly: the dilution of State representation in federal Parliament
and the growth in use of the external affairs power to support
Commonwealth legislation incapable of support by any other power.
Gibbs
CJ saw the Senate as a key element in the protection afforded
by the Constitution for the States. The Senate "is an essential
part of the Parliament in which the legislative power of the Commonwealth
is vested". Apart from three limitations in s. 53, it has
equal power with the House of Representatives in respect of all
proposed laws. Beyond these limitations, the Senate could amend,
reject or delay the passage of Bills proposed by the Government
which had passed the House of Representatives.75
"The
requirements that the Senate shall be composed of senators for
each State, directly chosen by the people of the State, and that
equal representation of the original States shall be maintained,
were not mere details of legislative machinery. They were obviously
regarded as indispensable features of a federal Constitution and
as a means of enabling the States to protect their vital interests
and integrity".76
He
quoted with approval Quick and Garran's statement that the Senate:77
".....
is the chamber in which the States, considered as separate entities,
and corporate parts of the Commonwealth, are represented. They
are so represented for the purpose of enabling them to maintain
and protect their constitutional rights against attempted invasions,
and to give them every facility for the advocacy of their peculiar
and special interests, as well as for the ventilation and consideration
of their grievances".
Quick
and Garran also said that the Senate was created for the purpose
of enabling the States "effectively to resist, in the legislative
stage, proposals threatening to invade and violate the domain
of rights reserved to the States". Gibbs CJ saw "the
protection of State interests by means of equal membership of
the Senate" as "one of the conditions on which the people
of the colonies agreed to unite". That was not so of the
Territories: at the time of federation the Australian Capital
Territory did not exist, and the Northern Territory of South Australia
and British New Guinea were in a state of dependency, not comparable
with the position contemplated for the States.78 It
was for these reasons, as seen above, that he construed s. 7 of
the Constitution as prevailing over s. 122.
Many
have found s. 51(xxix) difficult to construe, and in the course
of Sir Harry Gibbs' life on the Court, it came sharply to divide
the Justices. By the time of his retirement, the majority in succeeding
cases had established that s. 51(xxix), which gives the Commonwealth
power to legislate in respect of external affairs, supported a
law the purpose of which was to implement an international treaty
entered into by Australia. Since then it has been said that a
law implementing recommendations of international bodies, draft
international conventions and international recommendations and
requests is valid.79 This may be called the "treaty
interpretation" aspect of s. 51(xxix). It has also been held
that a law relating to any person, matter, thing or conduct outside
Australia can be supported by the external affairs power.80
This "geographic externality" view rarely came before
the Court directly while Sir Harry was a member.81
After his retirement he said that the "geographic externality
view" accords with the natural meaning of s. 51(xxix), though
he did not specifically approve it.82 However, in contrast,
at all stages he strongly opposed the treaty implementation doctrine,
at least in its broad form. In that broad form the majority recognised
four limits to it, but they are not closely restrictive.
The
first limit is that the Commonwealth must find another country
willing to enter a convention with it. The second is that the
convention must be made in good faith---not merely as a subterfuge
to give the Commonwealth legislative power it would otherwise
lack. However, as Gibbs CJ said in Koowarta v. Bjelke-Petersen,83
that doctrine is "at best ... a frail shield, and available
in rare cases" because it would be difficult to establish.
Later he went further and said it was "for practical purposes
... meaningless".84 Thirdly, the Commonwealth
law must be reasonably appropriate and adapted to give effect
to the convention: while legislation has sometimes failed this
test, it is not hard to satisfy. Fourthly, since s. 51(xxix) is
subject to the rest of the Constitution, it is subject to the
implication in the Constitution that the legislation must not
(a) discriminate against a State or (b) prevent it from continuing
to exist and function: but this criterion too is not hard to satisfy.
In Mason CJ's judgment in the Tasmanian Dam Case this limitation is recognised,85
but three years later he pointed out to an American audience that
the first limb of it had only been successfully invoked as a ground
of invalidity twice in the previous 40 years,86 and
that the second limb was "such an abstract notion that it
has so far proved incapable of useful definition".87
Gibbs
CJ unavailingly urged a further limitation: the law must not operate
entirely within Australia. If that limitation were not recognised,
s. 51(xxix) would leave it open to Parliament to enact legislation
which it had no other power to enact, and thereby deprive the
States of any power to legislate in that field because of the
operation of s. 109. That would ignore, and destroy, the federal
nature of the Constitution. It may be noted that legislation which
concerns matters entirely external to Australia does not have
this vice; that is no doubt why Sir Harry was not concerned to
dispute the geographic externality view extrajudicially, strong
though the arguments against it are.
The
majority judges in the leading cases, Koowarta v. Bjelke-Petersen and the Tasmanian Dam Case,88 criticised the minority
views as flawed. The supposed flaw is that they revived the "reserved
powers" doctrine, which had been repudiated in the Engineers'
Case.89 The majority did not,
however, deal with the key point made by Gibbs CJ in particular.90
Gibbs
CJ made it plain that his stand did not depend on the revival
of the reserved powers doctrine, or on the concomitant need to
identify any particular powers which were reserved to the States.
His point was a different one. His point was that the external
affairs power differed from all other powers conferred by s. 51
in its capacity for "almost unlimited expansion". Some
of the other powers were broad and some were not, but there were
limits to the application of all of them. That was scarcely true
of the external affairs power:
"..... there is almost no aspect
of life which under modern conditions may not be the subject of
an international agreement, and therefore the possible subject
of Commonwealth legislative power".
Hence
he relied on what Latham CJ said in the Bank Nationalisation
Case:91
".....
no single power should be construed in such a way as to give to
the Commonwealth Parliament a universal power of legislation which
would render absurd the assignment of particular carefully defined
powers to that Parliament".
On
Gibbs CJ's approach, a law, even if it gives effect to a treaty,
is not a law with respect to external affairs if it forbids the
building of a dam in Australia,92 or forbids the cutting
down of trees within Australia,93 or regulates industrial
relations in Australia.94 However, a law relating to
fugitive offenders or aerial navigation, although domestic in
part of its operation, might involve international relations:
if so, it could be within s.51(xxix).
Gibbs
CJ also rejected the idea that a law was valid under s. 51(xxix)
if it dealt with a matter of "international concern".
He said:
"The fact
that a domestic issue gives rise to international concern does
not convert a law with respect to a domestic issue into a law
with respect to external affairs".95
I
think it is correct to say that Gibbs CJ's argument has not been
answered. That means that, despite the weight of steadily accumulating
authority against his view, courageous counsel in future have
at least some intellectual straw with which to make bricks in
any challenge to the majority doctrine.
Any
such challenge could also rely on a fallacy in the majority reasoning.
It adopted the view that a wide power to legislate on external
affairs is desirable in order to avoid Australia being a "cripple",
unable responsibly to conduct international affairs.96
The fallacy in that view is that the reasoning ignores a fundamental
warning which Gibbs CJ gave about the task of constitutional interpretation:
"...
The function of this Court is to consider not what the Constitution
might best provide but what, upon its proper construction, it
does provide".97
The
question: "Is there a constitutional gap?" is not to
be answered merely by wishing or pretending that no gap exists.
It
may be an illusion, but at least in major constitutional litigation
Sir Harry appeared to be in dissent more frequently than is usual
for a Chief Justice. He did not complain or rail about this, any
more than he boasted about anything. Despite his discomfort about
constitutional trends in the years before his retirement, and
his even greater discomfort thereafter, Sir Harry thought the
Constitution worked "reasonably well". He praised it
for having "allowed democracy and the rule of law to survive
in Australia". Provided democracy and the rule of law survived,
he thought it would not be the particular provisions of the Constitution
which determined whether the nation would thrive or decline, but
"the intelligence, energy and decency of the people".98
We
must hope that the future raises up people of his intelligence,
energy and decency to defend the rule of law in our federal system
as worthily as he did. For he was a sturdy and forceful and unselfconscious
expounder of plain truths as he saw them. He confronted opposing
views directly, head-on, without flinching. To use the words he
used of Sir Samuel Griffith, he was "an exemplar of unselfish
dedication to the law".99
Let
me conclude by also applying to Sir Harry what Lytton Strachey
said of James Fitzjames Stephen, another man who fought against
the trends of his epoch. He said that he was: "A character
of formidable grandeur, with a massive and rugged intellectual
sanity and colossal commonsense".100
1.
Address of Sir Garfield Barwick on retirement on 11 February,
1981, 148 CLR v at vii.
2.
Toast to Sir Harry Gibbs, New South Wales Bar Association
Dinner, 5 December, 1986, Bar News,
Autumn 1987, 9.
3.
Future of Youth
(1986) 19 Australian Journal of Forensic Sciences, 6 at
6-7.
4.
Address---Speech Night at Knox Grammar School, 6 December,
1983, p.5.
5.
Occasional address, College of Advanced Education, Canberra,
30 April, 1982, p.13.
6.
Sir Harry Gibbs Reflects,
in Law Institute Journal, May, 1987, 417 at 421.
7.
Occasional address, College of Advanced Education, op.
cit., pp.11-12.
8.
Address to the 23rd Annual Conference of the North Queensland
Law Association, 17 October, 1981, p.4.
9.
Ibid., p.22.
10.
A W Brian Simpson, Hersch Lauterpacht and the Genesis
of the Age of Human Rights
(2004) 120 LQR 49 at 50.
11.
Address of Thanks to his Excellency the Governor-General
at the Commemoration of the 100th Anniversary of the Birth of
Sir Owen Dixon, 28 April,
1986, p.3.
12.
Concluding Remarks,
in Upholding the Australian Constitution, Proceedings of The Samuel
Griffith Society, Volume 4 (1994), 329 at 330.
13.
The State of the Judicature (1981) 55 ALJ 677 at 679-680. See also The
State of the Australian Judicature
(1985) 59 ALJ 522 at 524-525.
14.
Ibid. (1981),
at 680.
15.
House of Commons, 6 July, 1914, Hansard, p.847.
16.
Whitehouse v. State of Queensland (1960) 104 CLR 609 at 617.
17.
Toast to Sir Harry Gibbs, New South Wales Bar Association
Dinner, loc. cit., at 10.
18.
For valuable biographical material, together with a classification
and analysis of Sir Harry's judgments, see Justice G N Williams,
Sir Harry Gibbs in (ed)
M White and A Rahemtula, Queensland Judges on the High Court, ch. 3.
See also the entries by the following in the Oxford Companion
to the High Court of Australia:
David Jackson and Joan Priest (Harry Talbot Gibbs) and Anne
Twomey (The Gibbs Court).
19.
Address on the occasion of the 75th anniversary of the
University of Queensland Union, 19 July, 1986, p.3.
20.
Address on 12 December, 1981.
21.
Remarks at the Opening of the Lawasia Conference at Manila
on 9 September, 1983, p.2.
22.
Ibid., p.6.
23.
Ibid..
24.
Speech at swearing in as Chief Justice on 12 February,
1981, 148 CLR xi at xiii.
25.
Address of Thanks to his Excellency the Governor-General
at the Commemoration of the 100th Anniversary of the Birth of
Sir Owen Dixon, 28 April,
1986, p.2.
26.
Queensland v. The Commonwealth
(1977) 139 CLR 585 at 599.
27.
Reply by Sir Harry Gibbs to Toast, New South Wales Bar
Association Dinner, loc. cit.,
9 at 12.
28.
Burns v. The Queen
(1975) 132 CLR 258 at 265.
29.
Driscoll v. The Queen
(1977) 137 CLR 517 at 542.
30.
The history is discussed in Kelly v. The Queen (2004) 218 CLR 216 at paras
[22]-[37].
31.
The State of the Australian Judicature (1985), loc. cit. at 526.
32.
The Law---Fifty Years Later, Address on the Occasion of the 75th Anniversary
of the University of Queensland and the 50th Anniversary of the
Establishment of the Faculty of Law, 7 May, 1985, p.20.
33.
Ibid., p.19.
34.
A Constitutional Bill of Rights? (1986) 45 Australian Journal
of Public Administration,
171 at 175.
35.
The State of the Australian Judicature, loc. cit. at 527.
36.
For example, The Appointment of Judges (1987) 61 ALJ 7.
37.
Robert Stevens, The English Judges, p.14.
38.
Peter Rowland, Lloyd George, p.657.
39.
Western Australia v. The Commonwealth (1975) 134 CLR 201 at 243-249.
40.
Queensland v. The Commonwealth
(1977) 139 CLR 585.
41.
Ibid., at 600.
42.
Ibid., at 599.
43.
(1970) 122 CLR 69 at 101-113.
44.
(1971) 122 CLR 114 at 131.
45.
(1978) 141 CLR 88 at 128.
46.
Some Thoughts on the Australian Constitution, Address delivered at the All
Nations Club, 21 November, 1985, pp.3-4.
47.
Ibid., p.6.
48.
Bradken Consolidated Ltd v. Broken Hill Pty Co Ltd (1979) 145 CLR 107 at 122-123.
49.
Victoria v. The Commonwealth
(1971) 122 CLR 353 at 417-418.
50.
Ibid., at 424.
51.
Some Thoughts on the Australian Constitution, op. cit., p.15.
52.
R v. Barger
(1908) 6 CLR 41 at 54 per Griffith CJ ("inter-state"
where secondly appearing is a slip for "intra-state").
53.
Amalgamated Society of Engineers v. Adelaide Steamship
Co Ltd (1920)
28 CLR 129.
54.
Concluding Remarks,
in Upholding the Australian Constitution, Proceedings of The Samuel
Griffith Society, Volume 11 (1999), 291 at 294.
55.
The legislation was held valid: South Australia v. The
Commonwealth (1942)
65 CLR 373 (The First Uniform Tax Case).
56.
For example, Parton v. Milk Board (Victoria) (1949) 80 CLR 229.
57.
(1960) 104 CLR 529.
58.
(1960) 104 CLR 609.
59.
Ha v. State of New South Wales (1997) 189 CLR 465.
60.
Some Thoughts on the Australian Constitution, op. cit., p.8.
61.
Ibid..
62.
Victoria v. The Commonwealth
(1971) 122 CLR 353 at 396.
63.
A J Hannan, Finance and Taxation in (ed) Mr Justice Else-Mitchell,
Essays on the Australian Constitution (2nd ed, 1961) at p.249.
64.
For example, Second Territories Representation Case (1977)
139 CLR 585 at 601; The Commonwealth v. Tasmania (1983) 158 CLR 1 at 100 (The
Tasmanian Dam Case).
It was an expression less respected by other Justices: in the
Tasmanian Dam Case
at 129 Mason J spoke of "ritual invocations of 'the federal
balance' ".
65.
Strickland v. Rocla Concrete Pipes Ltd (1971) 124 CLR 468.
66.
The Sydney Morning Herald,
30 June, 2005, p.13.
67.
(1971) 124 CLR 468 at 525-528.
68.
Ibid., at 499.
69.
(1976) 136 CLR 1.
70.
Ibid., at 9.
71.
Ibid., at 14.
72.
Ibid., at 23-24.
73.
Ibid., at 20.
74.
(1997) 189 CLR 465.
75.
Victoria v. The Commonwealth
(1975) 134 CLR 81 at 143-144.
76.
Western Australia v. The Commonwealth (1975) 134 CLR 201 at 246.
77.
Constitution of the Australian Commonwealth, p.414.
78.
Western Australia v. The Commonwealth (1975) 134 CLR 201 at 247-248.
79.
Victoria v. The Commonwealth
(1996) 187 CLR 416 at 483 per Brennan CJ, Toohey, Gaudron, McHugh
and Gummow JJ (Industrial Relations Act Case).
80.
Polyukovich v. The Commonwealth
(1991) 172 CLR 501.
81.
Except for observations in New South Wales v. The Commonwealth (1975)
135 CLR 337 at 360 per Barwick CJ, 470-471 per Mason J, 497 per
Jacobs J and 502-504 per Murphy J (Seas and Submerged Lands
Case).
82.
External Affairs Power: A Critical Analysis, in Oxford Companion to the
High Court of Australia,
p.264.
83.
(1982) 153 CLR 168 at 200.
84.
External Affairs Power: A Critical Analysis, loc. cit., p.264.
85.
(1983) 158 CLR 1 at 128.
86.
Melbourne Corporation v. The Commonwealth (1947) 74 CLR 31; Queensland
Electricity Commission v. The Commonwealth (1985) 159 CLR 192. It has since
had a little more application: Austin v. The Commonwealth (2003)
215 CLR 185.
87.
The Role of a Constitutional Court in a Federation:
A Comparison of the Australian and the United States Experience (1986) 16 Federal Law Review 1 at 18.
An example of the second limb is Re Australian Education Union;
Ex parte Victoria (1995)
184 CLR 188.
88.
The Commonwealth v. Tasmania (1983) 158 CLR 1.
89.
Koowarta v. Bjelke-Petersen
(1982) 153 CLR 168 at 227 per Mason J and 241 per Murphy J; Tasmanian
Dam Case
(1983) 158 CLR 1 at 126-127 per Mason J, 168 per Murphy J, 220
per Brennan J and 255 per Deane J.
90.
Tasmanian Dam Case
(1983) 158 CLR 1 at 99-100. See Zines, The High Court and the
Constitution (4th ed),
p.283. At 284 Professor Zines works up an argument based on a
remark of Mason J's which is claimed to meet Gibbs CJ's point:
sed quaere.
91.
Bank of New South Wales v. The Commonwealth (1948) 76 CLR 1 at 184-185.
92.
Tasmanian Dam Case
(1983) 153 CLR 1.
93.
Richardson v. Forestry Commission (1988) 164 CLR 261.
94.
Victoria v. The Commonwealth
(1996) 187 CLR 416.
95.
External Affairs Power: A Critical Analysis, loc. cit., p.264.
96.
Koowarta v. Bjelke-Petersen
(1982) 153 CLR 168 at 229-230 per Mason J, at 241 per Murphy J;
Tasmanian Dam Case
(1983) 158 CLR 1 at 127 per Mason J, 221 per Brennan J and 258
per Deane J.
97.
Western Australia v. The Commonwealth (1975) 134 CLR 201 at 249.
98.
Some Thoughts on the Australian Constitution, op. cit., p.16.
99.
Sir Samuel Walker Griffith Memorial Lecture, 30 April, 1984, p.1.
100.
K J M Smith, Sir James Fitzjames Stephen, in Oxford Dictionary of National
Biography, vol 52,
439 at 442.