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Upholding the Australian Constitution: The Samuel Griffith Society Proceedings

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Gisonda, Eddy --- "Introduction" [2018] SGSocUphAUCon 1; (2018) 30 Upholding the Australian Constitution v


UPHOLDING THE

AUSTRALIAN CONSTITUTION

VOLUME 30

2018

Proceedings of the

Thirtieth Conference of

The Samuel Griffith Society

Pullman Hotel

King George Square, Brisbane

3 - 5 August 2018

2019 by The Samuel Griffith Society. All rights reserved.

Published 2019 by

The Samuel Griffith Society

PO Box 13076, Law Courts

Victoria 8010

World Wide Web Address:

http://www.samuelgriffith.org

Printed by: McPherson’s Printing Pty Ltd

76 Nelson Street, Maryborough, Victoria 3465

National Library Cataloguing-in-Publication data:

Upholding the Australian Constitution

Volume 30

Proceedings of The Samuel Griffith Society

ISSN 1327-1539

CONTENTS


Introduction

Eddy Gisonda v

The Tenth Sir Harry Gibbs Memorial Oration:

The High Court Justices and the Weight of War

The Honourable Susan Kiefel, AC 1

Lawyers in Action during World War I

Major General Greg Melick, AO, SC 15

Not all the Smart People are in Canberra

The Honourable Campbell Newman 29

Morality Policy and Federalism

Associate Professor Robyn Hollander 41

Are there Unrecognised Possible Limits on

the State’s Powers of Constitutional Amendment

Derived from the Constitution?

The Honourable David J S Jackson 49

The Prospects of Australian Federalism

Professor Nicholas Aroney 73

The Freedom to Hold and Profess a Religious Belief

The Most Reverend Julian Porteous 91

The Media and Religion in Australia

Gerard Henderson 99

The Murphy Papers:

Reflections on the Murphy Trials

Nicholas Cowdery, AO, QC 117

The Murphy Papers:

The Parliamentary Commission of Inquiry

The Honourable Stephen Charles, AO, QC 145

The Evolving State of Debate in Australia

The Honourable Peter Dutton, MP 163

Problems with a Plebiscite for a Republic

The Honourable Tony Abbott, MP 171

An Australian Republic? More than a Waste of

Time and Money: A Significant Obstacle to Seriously

Needed Constitutional Reform

Professor David Flint, AM 177

Crown or Republic: There is no Via Media

Gray Connolly 191

Special Address:

The Strange Demise of the Conciliation

and Arbitration Power

The Honourable Dr Christopher Jessup, QC 203

Concluding Remarks

The Honourable Ian Callinan, AC 223

Appendix I – Contributors 225

Appendix II – Essay Prize Winners 235

INTRODUCTION

Eddy Gisonda

The Samuel Griffith Society held its thirtieth conference on the weekend of 3 to 5 August 2018, in the city of Brisbane, Queensland.

For the third year in a row, it was the best attended conference in the history of the Society.

The conference included papers delivered by a former Prime Minister, a former Premier of Queensland, a Judge of the Supreme Court of Queensland, a former Judge of the Federal Court of Australia, a former Justice of Appeal of the Supreme Court of Victoria, a serving Commonwealth Minister, a Catholic Archbishop, and legal practitioners, leading academics, and commentators.

As well, the Tenth Sir Harry Gibbs Memorial Oration was delivered by the Chief Justice of the High Court of Australia. Five of the last six Chief Justices have now addressed the Society, with the last three doing so while holding office.

It was apposite that, on the 100th anniversary of the armistice, the Chief Justice should have delivered an oration on the subject of war. Harry Gibbs enlisted in the Australian Military Forces shortly after Germany invaded Poland in 1939. He served as an infantry officer in the 42nd Battalion, as an Aide-de-Camp to the General Officer Commanding Northern Command, and in the legal corps. Initially a Staff Sergeant, he was commissioned about six months after enlistment.

Following the defeat of the British-led forces in Singapore, Gibbs volunteered for service in the Australian Imperial Force in 1942, where he was promoted to Captain. He was posted to New Guinea at Port Moresby and was stationed there for about a year. His commendable service saw him mentioned in despatches for services in the south-west Pacific.

Following his period abroad, Captain Gibbs was promoted to Major and transferred to the Directorate of Research and Civil Affairs, where he joined others under the command of Colonel Alf Conlon, including John Kerr, James McAuley, Francis Hutley, James Plimsoll, and Julius Stone. The war ended shortly thereafter.

Gibbs enlisted the same year he was admitted to the Queensland Bar. He survived six long years of war. On his return to Brisbane, he was able to resume his legal career, and he eventually became one of the nation’s most distinguished citizens. The paper by Major General Greg Melick, AO, SC, is a sombre reminder of the very different fate that befell so many others. We will never know the eminent service that was denied to this country by the gruesome death of young soldiers fighting to defend its ideals.

Before the conference was organised, members of the Society were asked to nominate topics that would be of most interest to them. The three most popular answers were federalism, freedom of religion, and the republic. The conference included sessions on each of these topics.

The conference also included a further important session following the release of the records of the Parliamentary Commission of Inquiry into the Honourable Lionel Keith Murphy. The session, which was chaired by Ben Jellis in his usual professional manner, began with some reflections from Nicholas Cowdery, AO, QC, who was junior counsel for the prosecution in the criminal trials of Murphy before later becoming the Director of Public Prosecutions for the State of New South Wales. He was followed in the session by counsel assisting the Parliamentary Commission in 1986, the Honourable Stephen Charles, AO, QC, a leading Queen’s Counsel before his appointment to one of the nation’s finest courts, the inaugural Victorian Court of Appeal. Thereafter a lively discussion occurred, which included debate involving the presenters, attendees, Dr David Bennett, AC, QC (the former Commonwealth Solicitor-General who represented Murphy during the Commission of Inquiry), and the Honourable Ian Callinan, AC (who was lead counsel for the prosecution during the criminal trials and now serves as President of the Society). It was a privilege to be a witness to this remarkable debating session, which was more than 30 years in the making.

The conference concluded with an address from the Honourable Dr Christopher Jessup, QC. He has honoured our Society by elevating this volume into required reading for any person wanting to properly understand the history of the conciliation and arbitration power in Australia. So too has the Honourable Justice David Jackson with his paper on the possible limits on state constitutional amendment.

The weekend’s proceedings generated significant public interest, with coverage of the conference appearing in a number of newspapers and media outlets. There can be little doubt that the conference ranked as one of the most interesting and important to be held in this country in 2018.

Many people contributed to the success of the conference: the speakers, the chairs of the various sessions, John Roskam, the Honourable Nick Minchin, AO, Jeffrey Phillips, SC, Dr Ryan Haddrick, Xavier Boffa and Sharni Cutajar, among others. The Society is grateful to all of them.

The following Mannkal Foundation Scholars attended the Conference in 2018: Claudia Cardaci, John Gray, Julian Hasleby, Mitchell Hasleby, Cindy Liang, Emilie Ong, Nicholas Palmer, Alex Prindiville, Anis Rezae, Domenico Romeo, Carl Schelling, Benjamin Thomas, Emma Watson and Laura Watson. It is not now possible to imagine a Samuel Griffith Society Conference without Mannkal Scholars in attendance, and Ron Manners is held in the highest regard by everyone associated with the Society and its conferences.

The Mannkal Scholars were joined by the following Sir Samuel Griffith Scholars and Ian Callinan Scholars: Mitchell Ablett-Nelson, Alexandra Betheras, Matthew Carlei, Nicholas Comino, Susanna Connolly, Chris Drayton-Dekker, Wilson Gavin, Michael Gibson, Harrison Isbester, Christopher Kounelis, Charlotte Lang-Waring, Jessica Markabawi, Lachlan Myatt, Elliott Perkins, Nik Sachdev, Ashley Seah, John Slater and Alexander Vanstan. These young students each made thoughtful contributions to the conference over the course of the weekend and we look forward to seeing them return to our conferences in the years ahead.

The Sir Samuel Griffith essay competition in 2018 was won by Charlotte Choi, an arts student from Melbourne. This was the third year of the competition. The question was: ‘Should Australia hold a plebiscite on the question of whether to become a republic?’ Once again, the quality from entrants was high and their essays were informative and interesting. The winning entries from the past three years are now published for the first time in Appendix II to this volume.

Finally, the conference would not have run as successfully as it did without the work of the secretary of the Society, Stuart Wood, AM, QC, and his executive assistant, Shannon Lyon, ably assisted by Georgia Davis and Marina Antonellis. A mountain of work must be done in order to run the conference. Their service to the Society is appreciated by us all.

The conference in 2019 will be held in Melbourne.


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