Ladies and gentlemen, welcome to this, the
eighteenth Conference of The Samuel Griffith Society, and our
second in Canberra.
As
you all know, this Conference will have a special place in the
annals of our Society, having been the first to occur since the
death of our former President, the highly respected and warmly
regarded Sir Harry Gibbs.
Much
of our proceedings this weekend is dedicated to Sir Harry's memory,
beginning with last night's splendid inaugural Sir Harry Gibbs
Memorial Oration by His Honour, Justice Dyson Heydon of the High
Court of Australia. The large attendance, including members and
others from all mainland states of Australia, testified to the
regard and affection in which Sir Harry was held by all who came
in contact with him. They came last night to pay tribute to him,
and needless to say given Mr Justice Heydon's eminence, they were
not disappointed.
His
Honour's address, the written version of which ranges somewhat
further than the polished shorter version that he delivered to
us at dinner last night, will be published in full in Volume 18
of our Proceedings, Upholding the Australian Constitution. It displayed that characteristic mix
of wit, scholarship, felicity of expression and respect for all
the best traditions of the law, for which Justice Heydon has rightly
become renowned. On behalf of you all, I take this opportunity
of reiterating the thanks that were so ably delivered to him last
night by Bill Hassell.
In
the course of preparing these introductory remarks, I had occasion
to look back at those I made just over a year ago at our Coolangatta
conference. Referring then to "the swelling tide of ignorant
centralism rushing out of Canberra", I noted that "even
the Prime Minister"---for whom, as I have made clear on the
public record, I hold a high regard---"has not been immune
from this disease". Hardly had that Conference concluded
on April 10 than the Prime Minister, in what can only be described
as an appalling speech to the Menzies Research Centre entitled
Reflections on Australian Federalism, both confirmed his non-immunity and gave
proof that the disease was far advanced.
Since
then, the government's most important legislative endeavour has
been directed to its Work Choices legislation (and accompanying regulations).
That legislation purports to employ the corporations power of
the Constitution (section 51(xx)) not only to do what might previously
have been done under the conciliation and arbitration power (section
51(xxxv)) but also to do a great many other things which were
clearly outside the ambit of the latter power.
Earlier this month I spent four days here in
Canberra attending (with a little time off for the Budget) the
High Court hearings of the case that the State and Territory governments,
and some major trade unions, have brought against that legislation.
As you know, those hearings concluded on 11 May, and the Court
has reserved its judgment. I am confidently informed on all sides,
by persons much more learned in the law than I, that the plaintiffs
will lose their case and that the Commonwealth will prevail. To
which I can only reply, as I have done elsewhere, that I have
too high an opinion of most of the Justices to believe they would
actually commit such a monstrosity as that would entail.
The
viewpoint of those who dismiss my faith in that respect is founded,
as I understand it, in the fact that there have been some past
precedents (emanating from both sides of politics) in the use
of the corporations power by the Commonwealth to enact legislation
that might otherwise have been thought to be beyond its constitutional
powers. Indeed, as I listened earlier this month to the arguments
of counsel for the Commonwealth, the Solicitor-General, Mr David
Bennett, QC it seemed to me that his argument boiled down to saying
that, the Court having previously given the Commonwealth an inch,
it was now incumbent upon it to give it a mile.
Some
years ago, when commenting upon the outrageous abuse by the Commonwealth
of the external affairs power of the Constitution (section 51(xxix)),
Sir Harry Gibbs said that successive High Court interpretations
of that power had been such that one could now almost replace
the words "external affairs" with the one word "anything".
Had Sir Harry been alive today, I believe that he would have seen
this latest grab for centralist power by the Commonwealth as further
cementing that outcome---at least in so far as "anything"
involving a corporation was concerned.
That
brings me to our program, the first four papers in which today
are devoted to Sir Harry's life and work. As I am chairing that
section, I shall reserve any further remarks on those papers until,
shortly, we come to them.
This
afternoon, and again over dinner this evening, we shall have two
papers, and an address, directed to the "progressive"
lawyers' grab for further power for themselves via the enactment
of Bills of Rights in one form or another. That too, you will
recall, was a topic on which Sir Harry Gibbs's views are firmly
on the record in Volume 6 of our Proceedings. We also look forward
to a paper on the role of the Sovereign, and tomorrow, three papers
on, respectively, the Work Choices legislation, the Aboriginal
question, and the matter of federalism and the Liberal party,
on which I touched earlier in these remarks.
It
now remains to get the program under way. Our first paper this
morning, Sir Harry Gibbs Remembered, will be delivered by video. Its
author, His Honour Justice Michael Kirby, who has a prior and
unbreakable commitment this weekend in Fiji, has specifically
asked me to say how much he regrets his inability, as a consequence,
to be present to deliver his remarks in person. For my part, let
me only express my gratitude to Justice Kirby for undertaking
to speak to us, albeit from a distance, this morning. On the assumption
that this technology will work, let us now proceed to hear him.