The Samuel Griffith Society was established in 1992. Named after the first Chief Justice of the High Court, its motto is ‘Uphold the Constitution’ and it is this country’s finest legal organisation.
This year, it held its annual conference in Sydney from April 29 to May 1 and, as always, the quality of the Conference speakers was superb. The papers presented emphasised the virtues of the present Constitution and the need to: decentralise power and restore the authority of parliament, as well as recognise the dangers to the rule of law presented by an activist judiciary and media.
The undoubted highlight for me (and, I venture to say, for all attendees) was the speech given at the opening Conference dinner by Mark Latham. For a blow-by-blow description of how he laid waste to the state Coalition government in New South Wales, readers can go to James Allan’s Magazine piece here. Suffice to say that the honesty Latham is displaying in his home state is sorely needed at federal level, and should he decide one day to return to the federal arena (and I sincerely hope he does), he would romp it in.
As to the Conference papers themselves, while, as I stated above, their quality was excellent, there were a few standouts.
Associate Professor Janina Boughey of the UNSW Law School exposed the lack of accountability of executive governments, which has been particularly accentuated over the last couple of years.
‘Accountability might look different in an emergency, but it does not need to disappear,’ Boughey told the Conference.
‘Even with a web of laws and systems designed to hold the executive to account, much still rests on a government’s willingness to comply, and commitment to explaining their decisions to the public. There are loopholes which can be exploited to evade accountability and transparency. But these can and should be fixed.’
Associate Professor Boughey noted, in particular, the inadequate scrutiny of delegated legislation, which is the term for the laws made by parliaments but then delegated by them to minsters, bureaucrats, and agencies. Boughey noted delegated legislation makes up half of all Commonwealth laws.
The Senate committee for the scrutiny of delegated legislation had calculated that about 20 per cent of the 249 pieces of such legislation made in response to Covid were exempt from disallowance by the parliament and scrutiny by the committee. This, ostensibly, was done on the basis of the need to deal with an emergency in an expeditious manner. However, Boughey added that this approach cannot be justified on an historical basis. For the years 2010-19, only 19 – yes 19 – pieces of delegated legislation were disallowed by the Commonwealth parliament, which shows that the ever-increasing removal of such legislation from parliamentary scrutiny is not demonstrably justified.
As we know, parliaments, especially in NSW and Victoria, did not sit during the lockdowns. To this end, Boughey stated, tellingly:
‘While premiers, chief health officers and ministers appeared at press conferences, this is not a substitute for oversight by our elected representatives.
‘There was no reason why parliaments could not continue to function by meeting virtually in 2021. Parliaments in other countries, including the UK, had adapted their procedures to sit in virtual and hybrid modes.’
His Honour Justice Simon Steward of the High Court presented a paper entitled The Judicial Burden that centred on the US Supreme Court case of Marbury v. Madison and the leading judgment given in that case by John Marshall, who came to be known as the ‘great chief justice’. As Steward J noted, prior to Marshall’s appointment as Chief Justice, the US Supreme Court was so poorly respected that there was great difficulty in getting people to agree to be appointed as justices. However, thanks to Marshall, the Court became a vigorous and equal third branch of government.
Marbury followed the fiercely contested 1800 presidential election between John Adams and Thomas Jefferson. Adams lost the election and before his term ended, appointed many supporters as federal judges and justices of the peace. One of these appointments was William Marbury. However, by the time Adams’ term of office ended, Marbury’s appointment had not been delivered to him, and James Madison, Thomas Jefferson’s Secretary of State, withheld the appointment. Marbury asked the Supreme Court for an order, under section 13 of the Judiciary Act 1789, to ensure his appointment.
In his leading opinion, Marshall CJ held that, while, Madison’s refusal to deliver Marbury’s commission was illegal, section 13 gave the court powers beyond those actually set out in the Constitution. Thus, the Court has the power to rule invalid legislation if it violates the Constitution. This established the principle of judicial review of legislation, and underscored the Constitution as more than a charter of principles, but actual law.
Another important presentation was given by Gerard Henderson, the Executive Director of the Sydney Institute on ‘The Pell Case, the Law and the Media’, which highlighted the egregious nature of the campaign by the Victorian government, Victoria Police and the media lynch mob, led, of course, by the ABC and its fellow travellers, to ‘get Pell’. The sobering reality that emerged (with the upcoming federal election in mind) was that neither of the major parties have done, or intend to do anything, to ensure that such a concerted effort to accuse falsely, vilify and bring down a public figure such as Cardinal George Pell will never happen again.
An honourable mention also to Professor David Flint, who set out so eloquently the 30 years of republicanism in this country as a solution looking for a problem, and to Warren Mundine, who demonstrated how Indigenous Australians can be pulled out of disadvantage through practical programs, as opposed to government handouts and endless, pointless virtue-signalling.
The Samuel Griffith Society has played a significant role, through its conferences and advocacy, in standing up for the rule of law in this country over the last 30 years. One only needs to look at the list of speakers at past conferences as a demonstration of its importance. Here’s to another 30 years of continued success in its endeavours.
The views expressed in this article are those of the author and do not necessarily reflect the views of Curtin University.
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