No sooner had he stepped down from the High Court than Bill Gummow is on the lecture circuit ... Artemus Jones was on hand at the Queensland Banco Court to soak-up the vibe ... The end of empire
W. Gummow: The History ManGRIFFITH Law School sponsored Bill Gummow AC's talk on The Australian Constitution and the End of Empire - A Century of Legal History.
The venue was the vast Banco Court in the new complex in downtown Brisbane - the Queen Elizabeth 11 Courts of Law.
This recently opened monument to the law cost $780 million and is an impressive post-modernist pile of exposed concrete and timber.
Justice Margaret McMurdo opened proceedings by wryly suggesting that Gummow might care to give his next lecture on Roddy Meagher, an unusual suggestion for a female judicial officer, and one that illustrates the difference between the legal cultures of Sydney and Brisbane.
Could you imagine Justice Ruth McColl, for example, making a similar suggestion?
There was another introduction, this one from Professor William MacNeil, Dean of Griffith Law School - a rather rotund, bearded American who spoke in a language that seemed to be comprised solely of post-structuralist jargon.
He paid tribute to the "original owners" of the site and expressed the view that traditional Aboriginal society possessed a judicial system administered by male and female judicial officers.
Gummov, as Meagher called him, looked a little uneasy at hearing this piece of political correctness.
The former High Court judge spoke for almost an hour. There were no apparent signs of senility.
His basic contention was that the history of political relations between Australia and England had shaped the Australian legal system, the Australian Constitution, and the High Court's manner of construing the Constitution.
He contrasted the High Court's method of focussing on historical facts in interpreting the Constitution as opposed to the literalist textual approach favored by most judges of the United States Supreme Court.
The reason for this, he suggested, was that America had broken with England by means of a revolution, whereas Australia's path to political autonomy involved two centuries of continuing political interaction.
In these circumstances the American Constitution could more easily be interpreted as a bare text. In Australia this was not really possible.
Gummow traced the history of the evolution of Australian legal autonomy from England.
Australia's status as a significant dominion within the British empire is important, and one of the most interesting aspects of his analysis.
Each step towards automy involved political give and take on the part of both countries, often with diametrically opposed interests.
Compromise was the order of the day. It follows that the process can only be understood by means of historical analysis.
Our lecturer reminded us that the Australian Constitution itself was Act of the British parliament and that appeals to the Privy Council were not finally abolished until 1986. Of particular interest was the changing conventions regarding the role of the Governor General.
He argued that only an appreciation of historical context can properly explain different interpretations of the Constitution. The text of the Constitution has not changed, but has been interpreted by successive High Courts in a manner that the drafters of the Constitution had not contemplated.
Some provisions have become dead letters, while others (for example, the foreign affairs power) have been given a prominence which would have been unimaginable in 1901.
Some of Gummow's contentions are contentious.
For example, is it really the case that the High Court has adopted a uniform mode of constitutional interpretation? Surely, some practitioners of the literalist textual approach have sat on the High Court.
And on some issues he could have been more expansive. He did not mention the Anglo-Japanese Treaty of 1896, which provided the real impetus for the Australian colonies to finally form the Commonwealth.
In relation to the White Australia policy, he did not point out that it was Joseph Chamberlain who suggested the inclusion of the infamous dictation test (based on a provision in legislation in Natal) thus effecting a compromise between divergent British and Australian interests.
On the issue of abolition of appeals to the Privy Council, he did not mention the fact that Garfield Barwick and Owen Dixon were strongly in favour of abolition, a matter of some importance in bringing about the end result.
These are minor quibbles.
At a time when history is being abolished and historical consciousness disappearing (the mindless drones, of course, have no need of history, nor do they know any) it is important that jurists of Gummow's stature remind us of its central importance to the law.
The audience seemed genuinely interested in what the former judge had to say - another illustration of the differing legal cultures between Brisbane and Sydney.
The post-lecture food and refreshments were excellent and there was no admission charge.
Might Gummow take-up Justice McMurdo's suggestion and give us a lecture on the topic of R.P. Meagher?
Artemus Jones reporting