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September 01st 2015 print

James Allan

Some Still Care About the Constitution

The Samuel Griffith Society's conferences are a delight and this a year's gathering was no exception, not least because, as power continues to be directed by imaginative judicial edict toward Canberra,  it was a genuine pleasure to share the company of those who eschew centralist legal sophistries

sam griffithsMost years, and this one has been no exception, I have the great pleasure of attending a meeting held by one of the more important organisations in this country.  Its members — a diverse lot ranging from ex-High Court judges to former top civil servants, a few law professors, a smattering of MPs, plenty of lawyers and, encouragingly, some university students — listen each year to a different cohort of invited speakers. I refer to the Samuel Griffith Society, named after the first Chief Justice of the High Court and pictured at left

The Society’s members remain stalwart supporters of federalism, in line with the clear and unmistakable intentions of those who drafted our Constitution and worked to see it ratified, and despite the truly abysmal track record of our High Court in federalism disputes since 1920.

Before I go any further, let me indulge in an aside:  If you’re a betting person, always put your money on the Commonwealth winning any dispute with the states over the scope of the former’s law-making powers.  Our top court is, in my opinion, the most centralist in the federalist world, siding against the states more often than Canada’s top court, more than the US’s top court, more than Switzerland’s.  The result is the dysfunctional mess you see all around.  A world’s near-worst vertical fiscal imbalance?  Yep.  Australia as the only functioning federal system where the states or provinces or lander or cantons lack their own income-tax powers in any practical sense? Yep.  An approach to interpreting the centre’s heads of powers that is so other-worldly the Commonwealth can block Tasmania from building an economically vital hydro-electric dam on the basis – wait for it, it’s breath-taking – that the centre’s ‘external affairs’ power covers a treaty that had to do with environmental matters etcetera etcetera ad absurdum.

We also have seen the Commonwealth usurp the states’ powers over labour relations because the High Court said Canberra’s power was sufficient to do this, despite the centre only being given the explicit and far more bracketed  ‘conciliation and arbitration’ power and nothing more (not to mention the High Court’s simply ignoring a couple of constitutional referenda over the decades in which the centre sought this power from the voters and was always rebuffed – all irrelevant, according to our Canberra-loving High Court).

Basically, you couldn’t invent a less-federalist approach to interpreting our Constitution as written. Seen through my native Canadian eyes it’s a bad joke, this centralising interpretive approach.  And notice that the consequences of this ‘we will do all that we can to favour the centre’ approach cannot be forgiven due to its good outcomes because the outcomes have proven to be bad ones.  Real federal jurisdictions, such as Canada, Germany, Switzerland and the US (which was the one we overwhelmingly copied when our Constitution was put together), clearly outperform unitary states in economic terms. The High Court’s centralising mission has had adverse economic consequences for this country.  So it’s not as though the interpretive gymnastics have delivered us a heaven on earth, or even better economic results than a more plausible or (I would say) honest interpretive approach.

Forgive that rant.  There is little that can seemingly be done about these federalist sins of our top court and, anyway, next to no sign the current top judges are inclined to try.  But it hobbles the current federalism arrangements so severely that I, speaking personally, am overwhelmingly pessimistic that anything useful will come out of the current, and latest, attempt to do something to fix things.  I cannot think of a successful federalist democracy where the states lack income-tax power, where they do not raise most of what they spend and, thus, are accountable to their voters.  Our High Court, on the Commonwealth’s bidding, took that away in two big cases during and after World War II – again on extremely weak interpretive grounds.

All the hand-wringing about distributing the GST or raising it, taking from states that develop their resources to give to states that don’t (and a lot more besides) flows from the fact that our states are mendicants which can’t raise much money. Therefore they spend what is not ‘theirs’ and can never really stand up to the centre in anything like the way that Canadian provinces do. It’s a total mess.

In this regard, the Samuel Griffith Society can be seen as the last, dying embers of the federalist spirit that once animated this country. The Society cares about federalism. It cares, too, about Parliament and the legitimacy of key social-policy decisions being made by our elected legislators, not by a handful of un-elected ex-lawyers who sit on our top court to tell us they have ‘discovered’ some or other ‘implied freedom’ in the sinews of a text that explicitly and deliberately omitted any such thing.  These judicial creations are probably worse than the near century-long judicial re-write of our federalism arrangements.  And that is saying a lot, dear readers.

The Samuel Griffith Society is made up overwhelmingly of people whose instincts favour democracy and a more decentralised decision-making.  Its yearly conferences are a delight.  It keeps alive a crucial attitude that is next-to-nowhere to be found in our law schools, or among all that many of the leaders of the bar.

And with that long-winded preface let me say that this year’s annual Samuel Griffith conference was held this past weekend.  The event moves from around the country from year to year, as you would expect of a society committed to federalism.  You can check out the program on the Society’s website if you are so inclined.  Let me just say that this year’s highlight was the after dinner address by John O’Sullivan.  It was a tour-de-force.  I suppose that’s not surprising from a man who has worn so many different hats, from speech writer to Margaret Thatcher to editor of top journals and papers throughout the common law world (including National Review in the US) and who has moved to Australia for a few years to edit Quadrant.

If any of the above meshes with your outlook, think about joining the Samuel Griffith Society.  Lord knows we can use more such thinking in this country.

James Allan, Garrick Professor of Law at the University of Queensland, is the author of Democracy in Decline

Comments [3]

  1. Richard H says:

    As someone who was at the conference on the weekend, let me say thank you, Professor, for your valuable contributions to keeping some life in “the dying embers”.

  2. Jody says:

    Thanks for the valuable report. I feel very pessimistic about the situation with regard to the High Court and the legal fraternity in general. At a much closer-to-the-coalface State level the legal system has habitually let down the community with its obscenely lenient sentencing and lefty, social-worker mindset – so much so that woe betide anybody who is middle class and comes before the courts because they will be punished for transgression whilst the ‘victims’ from the working class, self-identifying minorities and drug addled individuals will be given a very light touch.

    I’m tired of seeing grief-stricken people outside the courts – systematically humiliated and ignored by lenient judges (whose comments are always high on rhetorical flourish, it has to be said) continue to spruik that old chestnut, “no sentence can make up for our loss”. Why they throw out the window each and every opportunity to change things is anybody’s guess. At least Jill Meagher’s husband took a huge swipe at the system after his wife was murdered by a parolee.

    Why would we have any confidence at all in the High Court and Federalism issues? The legal profession is a huge part of the culture wars in this country and will remain so. I think it may be apprehended by a hypothetical observer as “bias”.

    • Avalon says:

      Another topic (cf. industrial relations, their ABC) on which one might ask, “We won an election, can’t we fix it?” I sometimes wonder whether, had the constitution provided that the Governors-in-Council of each State and the Governor-General in Council of the Commonwealth each chose one Justice then we might have had a federalist Court. Of course many judges have surprised us after appointment.