Christian Jollie Smith was an important female legal figure.  She was admitted as a barrister and solicitor by the Supreme Court of Victoria in 1912; Jollie Smith later moved to New South Wales where in 1924 she became only the second woman admitted as a solicitor in that state.  As well as playing an important role in the Kisch case, she briefed Bert Evatt in the Communist Party Dissolution case.  In the 1950s she provided constitutional advice to Jessie Street whose support and counsel for Pearl Gibbs and Faith Bandler led to the campaign for the 1967 referendum which is discussed in chapter 12.  

See Joy Damousi ‘Jollie Smith, Christian (1885-1963)’ Australian Dictionary of Biography adb.anu.edu.au/biography/jollie-smith-christian-8465/text14885 

Maurice Blackburn was a Victorian lawyer, politician, peace activist and civil libertarian.  Although he was elected as a Labor candidate at state and federal levels, in 1942 he left the Labor Party over opposition to conscription. His wife Doris was a leading feminist and peace activist.  Maurice Blackburn is also famous as the founder of the legal firm of Maurice Blackburn Lawyers which he established in 1919.  

See Susan Blackburn Abeyasekere ‘Blackburn, Maurice McCrae (1880-1944)’ Australian Dictionary of Biography adb.anu.edu.au/biography/blackburn-maurice-mccrae-5258/text8861

Albert Piddington was especially well-known in New South Wales where he had been a judge and president of the Industrial Commission. In 1912, Piddington had accepted an appointment as a Justice on the High Court of Australia, but withdrew believing he had been compromised by a cable sent to him at the instigation of Attorney-General Hughes on his views on Commonwealth powers.  

See Michael Roe, 'Piddington, Albert Bathurst (1862–1945)', Australian Dictionary of Biography adb.anu.edu.au/biography/piddington-albert-bathurst-8043/text14027.

Gerald Griffin, an Irish-born New Zealander who had also been invited to speak at the Melbourne Peace Congress was also subjected to the dictation test, on this occasion set in Dutch, which he failed.  Griffin subsequently entered Australia through covert means and spoke at rallies around the country about the horrors of Nazi Germany and in favour of his co-invitee Egon Kisch.  He was eventually arrested and his case too was appealed to the High Court which determined in his favour and the Commonwealth ordered to pay costs.  

See ‘Gerald Griffin Profile’ (Feb-Mar 1969) Australian Left Review 50-57 [available online: ro.uow.edu.au/cgi/viewcontent.cgi?article=2001&context=alr.]

• D’Emden v Pedder (1904) 1 CLR 91; 

• Deakin v Webb (1904) 1 CLR 585;

• Federated Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Employees Association (1906) 4 CLR 488;

• Baxter v Commissioner of Taxation (NSW) (1907) 4 CLR 1087

• Attorney-General (NSW); Ex rel Tooth & Co v Brewery Employees Union (NSW) (1908) 6 CLR 469; 

• Huddart, Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330

• Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (‘the Engineers’ Case’) (1920) 28 CLR 129

• Australian Constitution s 51(xxxv)   

Judgment of Justices Knox, Isaacs, Rich and Starke in Engineers Case:

They held as follows:

Applying these principles to the present case, the matter stands thus:-Sec 51 (xxxv) is in terms so general that it extends to all industrial disputes in fact extending beyond the limits of any one State, no exception being expressed as to ‘industrial disputes’ in which States are concerned; but subject to any special provision to the contrary elsewhere in the Constitution. The respondents suggest only section 107 as containing by implication a provision to the contrary. The answer is that sec 107 contains nothing which in any way either cuts down the meaning of the expression ‘industrial disputes’ in sec 51 (xxxv) or exempts the Crown in right of a State, when party to an industrial dispute in fact, from the operation of Commonwealth legislation under sec 51 (xxxv). Sec 107 continues the previously existing powers of every State Parliament to legislate with respect to (1) State exclusive powers and (2) State powers which are concurrent with Commonwealth powers. But it is a fundamental and fatal error to read sec 107 as reserving any power from the Commonwealth that falls fairly within the explicit terms of an express grant in sec 51, as that grant is reasonably construed, unless that reservation is as explicitly stated. The effect of State legislation, though fully within the powers preserved by sec 107 may in a given case depend on sec 109. However valid and binding on the people of the State where no relevant Commonwealth legislation exists, the moment it encounters repugnant Commonwealth legislation operating on the same field the State legislation must give way. This is the true foundation of the doctrine stated in D’Emden v Pedder in the so-called rule quoted, which is after all only a paraphrase of sec 109 of the Constitution. The supremacy thus established by express words of the Constitution has been recognized by the Privy Council without express provision in the case of the Canadian Constitution (see, eg, Le Compagnie Hydraulique v Continental Heat and Light Co). The doctrine of ‘implied prohibition’ finds no place where the ordinary principles of construction are applied so as to discover in the actual terms of the instrument their expressed or necessarily implied meaning. The principle we apply to the Commonwealth we apply also to the States, leaving their respective acts of legislation full operation within their respective areas and subject matters, but, in case of conflict, giving to valid Commonwealth legislation the supremacy expressly declared by the Constitution, measuring that supremacy according to the wry words of sec 109. That section, which says ‘When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid,’ gives supremacy, not to any particular class of Commonwealth Acts but to every Commonwealth Act, over not merely State Acts passed under concurrent powers but all State Acts, though passed under an exclusive power, if any provisions of the two conflict; as they may—if they do not, then cadit quæstio.

Justice Higgins on the literal rule of interpretation wrote in the Engineers Case:

The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable. 

Justice Windeyer’s statement in Victoria v Commonwealth (‘the Payroll Tax Case’) (1971) 122 CLR 353:

I have never thought it right to regard the discarding of the doctrine of the implied immunity of the States and other results of the Engineers' Case as the correction of antecedent errors or as the uprooting of heresy. To return today to the discarded theories would indeed be an error and the adoption of a heresy. But that is because in 1920 the Constitution was read in a new light, a light reflected from events that had, over twenty years, led to a growing realization that Australians were now one people and Australia one country and that national laws might meet national needs. For lawyers the abandonment of old interpretations of the limits of constitutional powers was readily acceptable. It meant only insistence on rules of statutory interpretation to which they were well accustomed. But reading the instrument in this light does not to my mind mean that the original judges of the High Court were wrong in their understanding of what at the time of federation was believed to be the effect of the Constitution and in reading it accordingly.  

R G Menzies spoke at length in the Commonwealth Parliament on the Balfour Declaration and the Statute of Westminster in 1937.  Here is a short extract from his speech which sums up his view:

I know that quite a number of people are troubled about the proposal to adopt the Statute of Westminster for the reason that they feel it may give some support to the idea of separatism from Great Britain …

I think that the business of devising the Balfour Declaration in 1926, and the business of devising and drafting the preamble of the Statute of Westminster in 1931 were both open to grave criticism … I believe that the 1926 declaration … was, in substance, a grave disservice … 

My criticism is … of the whole of the 1926-31 process, and that begins and has its roots in what I would have thought was a misguided attempt in 1926 to reduce to written terms something which was a matter of spirit and not of the letter …

Cited in Eric M Andrews, A History of Australian Foreign Policy: From Dependence to Independence (Melbourne, Longman Cheshire, 1979) 63-64.

 

For further discussion of the controversy around Isaacs appointment see Hilary L. Rubinstein, ‘”A Gross Discourtesy to His Majesty”: The Campaign within Australia,1930–31, against Sir Isaac Isaacs' Appointment as Governor-General’ (1998) 14 3 Australian Jewish Historical Society Journal 425-458.   

Australia also at war: Events of Sept 1939-May 1942

Australia immediately began recruitment for an air force but its trainees were sent to Canada for training in preparation for air battles over the English Channel and western Europe.  Four new divisions of an Australian Imperial Force were raised – the 6th, 7th and 9th Divisions were sent to support British forces in North Africa while the ill-fated 8th Division was sent to reinforce Britain’s naval base in Singapore.  The army remained under Australian command and under the provisions of Australia’s Defence Act 1903 (Cth).  

Australia’s Defence Act was drafted in the aftermath of the court martial and execution of Breaker Morant, an Australian combatant in the Boer War.  For a succinct entry on the implications of its death penalty provisions see the Australian War Memorial’s Online Encyclopaedia which includes further reading.

On the ‘democratic’ aspect of the Defence Act and the objections of General Hutton, the military adviser sent by Great Britain to develop an Australia defence force, see 

Ross McMullin, ‘So monstrous a travesty’: Chris Watson and the world’s first national Labour government (Carlton North Vic., Scribe, 2004)

When Japan bombed Pearl Harbour and several British colonial territories on 8 December 1941(AET), Prime Minister Curtin immediately declared war against Japan.  British defences in South East Asia collapsed and on 16 February 1942 the Prime Minister declared ‘The fall of Singapore opens the Battle for Australia.’ The grave threat to Australia was Japanese occupation of Port Moresby which appeared likely until the Battle of the Coral Sea 6-9 May 1942 blocked the Japanese advance southward.  In April 1942 HMAS Australia was off New Caledonia just to the south east of where this decisive battle turned the tide of events in the south west Pacific.  

1. The Colonial Laws Validity Act 1865 did not apply to any law made by a Dominion Parliament and enacted after the commencement of the Statute of Westminster: s 2(1);

2. The principle of repugnancy laid out in the Colonial Laws Validity Act 1865 had no application to future Acts passed in Dominion Parliaments: s 2(2);

3. Each Dominion Parliament had ‘full power to make laws having extra-territorial operation’: s 3;

4. The United Kingdom Parliament could not legislate for a Dominion except by the request and consent of that Dominion: s 4.

International tensions: When the Cold War became hot.

Australia participated in two armed conflicts produced by international tensions during the Cold War - the Korean War 1950-53 and the Vietnam War 1962-72. 

Domestic politics in the United States and Australia also became deeply fractured.  The United States senator Joseph McCarthy frequently named prominent citizens whom he accused of subversion and a committee of the US Congress, the House of Un-American Activities Committee, also investigated citizens it suspected of communist activities.  A similar atmosphere in Australia opposed all dissent and encouraged conformity.  

The Governor-General would declare a body ‘an unlawful association’ in the Commonwealth Government Gazette on being satisfied that it was ‘prejudicial to the security and defence of the Commonwealth or to the execution or maintenance of the Constitution or of the laws of the Commonwealth’. 

Declaring a person unlawful: s 9

The same procedure applied to persons: the Governor-General could make a declaration about a person who was a member or officer of the CPA or was alleged to be a communist or deemed likely to engage in prejudicial activities at any time after 10 May 1948.

The High Court Justices agreed that the Commonwealth could legislate against subversive activities using different sources of power—the defence power, the incidental power or even an implied legislative power. However the courts must then determine the question whether the association or the individual was guilty of subversion. 

‘a stream cannot rise higher than its source’

As Justice McTiernan noted, ‘[t]he Constitution does not allow the judicature to concede the principle that the Parliament can conclusively “recite itself” into power.’ Parliament was not able to ‘arrogate a power to itself by attaching a label to a statute’. Fullagar captured this best by stating that ‘a stream cannot rise higher than its source’, meaning that:

The validity of a law or of an administrative act done under a law cannot be made to depend on the opinion of the law-maker, or the person who is to do the act, that the law or the consequence of the act is within the constitutional power upon which the law in question itself depends for its validity. A power to make laws with respect to lighthouses does not authorize the making of a law with respect to anything which is, in the opinion of the law-maker, a lighthouse.

Justice Fullagar reaffirmed the principle of judicial review in Marbury v Madison. 

Justice Dixon in his judgment took the opportunity to write about the significance of the rule of law to constitutional decision-making, stating that the Constitution:

is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption.

Sir Owen Dixon was a Justice of the High Court (1929-52) and sixth Chief Justice of Australia (1952-64). During World War II, Dixon took a leave of absence from the High Court to serve as Australian Minister in the United States (1942-44). 

As Ayres’ book Owen Dixon recounted, Dixon was ‘entire in himself, well-turned and polished, rounded off.’  Dixon’s abilities were immense. He was a judicial giant—modest, highly knowledgeable and an intellectual. He is widely considered to be Australia’s greatest judge.

Born at his paternal grandparents’ home in Melbourne on 28 April 1886, Dixon was the only child of Joseph William (JW) Dixon, a barrister, and his wife, Edith (née Owen). 

JW’s brother, John Edward, was a solicitor. The brothers were forced together in the 1890s. JW became deaf as a result of a train crash compelling him to leave the Bar for private practice. He practised as a solicitor with his brother.

In 1894, Dixon’s parents enrolled him at Hawthorn College where he excelled. At the age of 15, he passed matriculation but was too young to go to University. He remained at Hawthorn until 1903.

Dixon graduated from the University of Melbourne with a Bachelor of Arts (with second class honours) in Classics (1906), a Bachelor of Laws (1908), and a Master of Arts (1909).  Sir Robert Menzies later commented that Dixon’s

university degrees were moderate enough for a man of Dixon’s uncommon talents. But as I got to know him, I got to realize that as a student he must have been much more interested in far-ranging studies—learning for learning’s sake—than in the mere passing of examinations based upon set courses and prescribed books. 

Dixon wished to continue his study of Classics (Greek and Latin), perhaps, at Oxford. The Dixon family could not meet this expense: they needed their son’s financial support. 

Dixon’s father was unwell, going through periods of depression. JW also battled with alcohol, leading Dixon to promise his mother to never drink a drop. Dixon and his father were, however, very close. Dixon would stay awake out of concern for his father. While on circuit, Dixon would send telegrams to check on him.

Dixon was admitted as a barrister and solicitor in 1910. Work was initially sparse in his early years. Dixon’s parents could not afford for him to read with another barrister, as was customary, so Dixon went untutored. In time, his Bar practice flourished.

In 1922, Dixon was appointed King’s Counsel. For a few months in 1926, he was an acting Justice of the Supreme Court of Victoria. In January 1929, Justice Higgins of the High Court died at the age of 77. Federal Attorney-General John Latham suggested that Dixon should fill the empty seat, and the Government was willing to offer it.  Dixon accepted the position reluctantly ‘because I was told I ought.’ In his diary, Dixon noted his decision to accept against ‘all the unwillingness on my part to become a judge’. In 1929, at the age of 42, Dixon was appointed a Justice of the High Court. It was not a happy time to join the ranks of the High Court. 

Dixon was devoted to his family. He took leaves of absence to attend to his children’s health problems. 

On 18 April 1952, Dixon was appointed Chief Justice of Australia. It was a position Dixon held for 12 years before retiring on 13 April 1964, just shy of his 78th birthday. In his swearing-in speech, Dixon made clear his commitment to ‘strict and complete legalism’. He was opposed to judicial activism. During his tenure as Chief Justice, if Dixon ‘was concerned that a decision would go a particular way, his aim was to get his own judgment out first for circulation to other members of the Court.’  In this way disagreements were minimised and the Dixon Court was universally admired.

Dixon thought he wasted his life by accepting judicial appointment so, when he retired in 1964, he chose not to read another Commonwealth Law Report. He also refused an offer to be Governor-General. 

Increasingly frail, Dixon was bereft when his wife, Alice, died in late 1971. Less than a year later, on 7 July 1972, Dixon died at his home in Hawthorn, Melbourne. He was survived by two sons, Franklin (‘Bruv’) and Edward (‘Ted’), and two daughters, Elizabeth (‘Bet’ or ‘Betty’) and Anne. 

If you would like to do further reading on this topic, one scholar who has studied Australian governments’ responses is George Williams.  See for example,

George Williams, ‘Australian Values and the War Against Terrorism’ (2003) 8 26 University of NSW Law Journal 191- 99.

Ben Golder & George Williams ‘Balancing national security and human rights: Assessing the legal response of common law nations to the threat of terrorism’ (2006) 8 1 Journal of Comparative Policy Analysis: Research and Practice 43-62

George Williams, ‘A Decade of Anti-Terror Laws’ (2011) 35 3 Melbourne University Law Review 1136-1176. 

The Whitlam Government and its dismissal remain contentious, both politically and constitutionally.  For students who would like further details there is a rich literature.  All the main players wrote their account of events.  

The Governor-General 

John Kerr, Matters for Judgement (South Melbourne, Macmillan, 1978) 

The Prime Minister 

Gough Whitlam, The Truth of the Matter (Ringwood Vic., Penguin, 1979)

Gough Whitlam, The Whitlam Government 1972-1975 (Ringwood Vic., Viking, 1985) 

Gough Whitlam, Abiding Interests (St Lucia, UQP, 1997) 

The Leader of the Opposition 

Malcolm Fraser and Margaret Simons, Malcolm Fraser: The Political Memoirs 

(Carlton Vic., Miegunyah, 2010). 

Chief Justice 

Sir Garfield Barwick, Sir John did his duty (Wahroonga, Serendip Publications, 1983) 

Whitlam’s press secretary

Graham Freudenberg, A Certain Grandeur (Ringwood Vic., Penguin, 1987)   

The Kerr Palace Letters

Official correspondence held by the National Archives of Australia and released in 2020.  

Recent scholarly works

Jenny Hocking, Gough Whitlam: A Moment in History: the Biography vol.I (Carlton Vic., MUP, 2009)

Jenny Hocking, Gough Whitlam: His time: The Biography vol.II (Carlton Vic., Miegunyah, 2012)

Jenny Hocking, The Dismissal Dossier: Everything you were never meant to know about November 1975 (Carlton Vic., MUP, 2015)

Paul Kelly & Troy Bramston, The Dismissal: In the Queen’s name (Melbourne, Penguin, 2015)

 

It was convention (though not law) at the time to replace a deceased or resigning Senator with a member of the same political party – a convention called the ‘Menzies-McLarty Convention’ because it had been negotiated between PM Menzies and Premier Duncan McLarty of Western Australia in 1952, following the introduction of proportional voting for the Senate in 1949. 

On 10 January 1975, New South Wales Parliament appointed Cleaver Bunton to replace Senator Lionel Murphy who had been appointed as a High Court Justice. Bunton was not a member of the Labor Party, and the appointment was regarded as a breach of convention. 

Bunton, however, caused few problems compared with the ripples generated by Queensland’s breach of the Menzies-McLarty Convention in September 1975. The Queensland Parliament appointed a former Labor Party member, Albert Field, to replace Labor Senator Bert Milliner who had died in office. Though formerly a Labor Party member, Field was expressly opposed to Whitlam.

The origins of the Menzies-McLarty practice, and of the constitutional amendment following a successful referendum in 1977, are discussed by 

James Crawford, ‘Senate Casual Vacancies: Interpreting the 1977 Amendment’ (1980) 12 Adelaide Law Review 224-252. 

The Whitlam Government devised a strategy in early 1974 to secure three Senate seats in Queensland at forthcoming elections. The Government expected two seats at best. To improve their prospects of winning an additional Senate seat in Queensland, the Government decided to create a casual vacancy to be filled at the next half-Senate election (see s 15 of the Australian Constitution above). 

Senator Vincent Gair, formerly the Labor premier of Queensland but then leader of the DLP after the split in the Labor Party, had expressed his desire to retire on the expiration of his Senate term in 1976.  He also expressed an interest in a diplomatic position. Whitlam saw an opportunity, recommending Gair, a committed Roman Catholic, for appointment as Ambassador to Ireland. News of this appointment leaked on 2 April 1974 before Gair offered his resignation. That same evening, the Premier of Queensland, Joh Bjelke-Petersen, advised the State Governor to issue writs for the election of five—not six—senators on 18 May. This mechanism is provided for in s 12 of the Australian Constitution.

The outcry over Gair’s self-interest ahead of his party and of Bjelke-Petersen’s manipulation of the writ for the senate was fierce.  

From the perspective of 5 decades later, the most marked characteristic of the Junie Morosi Affair was the depth of sexism that imbued Australian society in 1974-75.  Junie Morosi was a very attractive woman who was appointed Office Co-Ordinator to the Deputy Prime Minister and Treasurer, Jim Cairns, in December 1974.  With few women appointed to senior levels of the Canberra bureaucracy, this was enough to trigger innuendo regarding her relations with the Minister and accusations of nepotism.  The situation was aggravated by Cairns’s misjudgement and Junie Morosi’s courting of the media.  

For an insider’s critical view see 

Freudenberg, A Certain Grandeur 317-24.  

The Loans Affair was the ‘nail in the coffin’ for the Whitlam Government. It seriously impaired the Government’s credibility. On 13 December 1974, a meeting of the Federal Executive Council was convened hastily and without prior notice to the Governor-General, Sir John Kerr. It was usual for the Governor-General to be present at Federal Executive Council meetings. At the meeting were Prime Minister Gough Whitlam, Minister for Minerals and Energy Rex Connor, Attorney-General Lionel Murphy, and Treasurer Jim Cairns. 

At this meeting, Connor received authorisation to raise a loan of US$4 billion to finance minerals and energy infrastructure and construction (a uranium enrichment plant and natural gas pipelines). Though ‘for temporary purposes’, the loan was to be repaid after 20 years. Furthermore, it would be raised by rather unconventional means—through a Pakistani financial broker, Tirath Khemlani, from Arab petrodollars. It turned out that Khemlani had no access to the US$4 billion. Moreover, the provenance of the money to be raised was questioned, especially by Treasury Department officials who were indignant about how they were by-passed. The funds in question were never raised. The Governor-General, though absent from the meeting and having concerns, nevertheless signed the Executive Council Minute the next morning.

The outcry over the ‘Loans Affair’ resulted in the dismissal of Deputy Prime Minister Jim Cairns and the resignation of Minister for Minerals and Energy Rex Connor in July and October 1975 respectively. The dismissal and resignation were for misleading Parliament.

Rex Connor had doggedly pursued the loan because of his vision of national ownership of Australia’s natural resources.  Economic conditions were worsening in Australia owing to the international oil crisis and stagflation caused by the Vietnam War.   He dreamed of using this mineral wealth to fund Australia’s expanded social welfare program.  It was viewed as extreme radicalism at the time but was akin to Norway’s sovereign wealth fund based on their oil and gas resources today. 

The scandal however enabled the Opposition to counteract Whitlam’s claim of his right to govern.  As a result of the Loans Affair the Senate passed a resolution stating that it was ‘of the opinion that the Prime Minister and his Government no longer have the trust and confidence of the Australian people’ - see Australian Parliament, Powers, practice and procedure: Double dissolutions

The First Law Officer in Australia is the Attorney-General.  The Whitlam Government called on both the Attorney-General and the Solicitor-General for legal advice. 

Kep Enderby was Whitlam’s Attorney-General in November 1975.  Maurice Byers was Solicitor-General.  

Freudenberg, Certain Grandeur 376.

Dismissal Speech

On the steps of old Parliament House, after being dismissed by the Governor-General, Whitlam famously stated:

Ladies and gentlemen, well may we say "God save the Queen", because nothing will save the Governor-General! The Proclamation which you have just heard read by the Governor-General's Official Secretary was countersigned by Malcolm Fraser, who will undoubtedly go down in Australian history from Remembrance Day 1975 as Kerr's cur. They won't silence the outskirts of Parliament House, even if the inside has been silenced for the next few weeks … Maintain your rage and enthusiasm for the campaign for the election now to be held and until polling day.

PM Transcripts: Transcripts from the Prime Ministers of Australia, 

Many documents, photographic and audio-visual material on the Dismissal are available online: 

Museum of Australian Democracy: https://www.whitlam.org/

Malcolm Farnsworth, Whitlam Dismissal: https://whitlamdismissal.com/

The Whitlam Institute: https://www.whitlam.org/

The Dismissal

Here are some links including to newspaper opinion pieces to help get you thinking.  

Anne Twomey 16 July 2020

Richard Ackland 30 August 2012

Premier Bjelke-Petersen and the Whitlam Government

Sir Joh Bjelke-Petersen was the Country Party, later National Party, Premier of Queensland from 1968 to 1987.  A staunch conservative he was implacably opposed to the Whitlam Government and its reform agenda.  

As part of his modernisation agenda Whitlam decided to update the Queen’s titles pertaining to Australia.  This was in accord with a British Commonwealth meeting from December 1952 at which member nations had agreed that the sovereign’s titles should be updated to reflect the relationship between the Queen and member countries.  To enact this decision Britain and Australia had passed the Royal Style and Titles Act 1953 (Cth) https://www.legislation.gov.au/Details/C1953A00032

In 1973 Whitlam passed legislation to modernise the Queen’s titles in relation to Australia and its territories, removing the term ‘Defender of the Faith’:  ‘Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth’.  

This seemingly straightforward change provoked objection from Bjelke-Petersen.  He had already introduced separate imperial honours for Queensland following Whitlam’s introduction of the Order of Australia and now he decided that if the Queen’s title was to be amended she should be made the ‘Queen of Queensland’, however his attempt to add these words to the Queen’s official titles was rejected by the High Court in what is known as the Queen of Queensland Case in 1975.   

The Queensland Premier was seeking to increase the Queen’s authority because he was concerned that the Commonwealth Government might instruct the Governor-General to issue directives to state governors.  At the height of national tensions in October 1975, the then Governor of Queensland, Sir Colin Hannah made a public attack on the Whitlam Government in breach of a governor’s duty to remain non-partisan.  As the longest serving state governor, Hannah had what is known as a ‘dormant commission’ meaning he would be required to step in as ‘Administrator’ in the event the Governor-General was overseas or unavailable.  Whitlam wrote to the Queen who removed his ‘dormant commission’.  The governors also have a significant role at the federal level because they issue the writs for senate elections.   In the political discord of 1974-75, there was uncertainty as to whether these office holders who are supposed to be above politics, would answer to their premier, the governor-general or the Queen.   

In 1975 Bjelke-Petersen also wrote to the Queen regarding Hannah – the Premier wanted a three-year extension of Hannah’s commission which was due to end in 1977.  Concerned about political turmoil in Australia the British Government seriously considered dismissing Hannah but in the end it advised the Queen to refuse the renewal of his commission.   The Queensland Premier was indignant; he had assumed that the Queen acted on his advice alone and that British ministers were mere channels of communication to the Palace.  Just as the Dismissal had alerted Australians to the reality of the Governor-General’s reserve powers, now media leaks and questions in the Commonwealth Parliament made the authority of the British Government over the states manifest.  These steps paved the way for national agreement to bring the states into line with the Commonwealth and with the Statute of Westminster.

Anne Twomey, The Chameleon Crown: the Queen and her Australian Governors. Annandale (NSW: Federation Press, 2006). 

Chris Coulthard-Clark, Soldiers in Politics: The Impact of the Military on Australia’s Political Life and Institutions (St Leonards NSW, Allen and Unwin, 1996).  

Australia Acts 1986 (Cth) and (UK)

Australia (Request and Consent) Acts 1985 (Cth)

Statute of Westminster

Colonial Laws Validity Act 1865 (UK) 

Australia Act 1986 (UK)

Australia Acts (Request) Act 1985 (NSW)

Australia Acts (Request) Act 1985 (Tas)

Australia Acts (Request) Act 1985 (WA)

Australia Acts (Request) Act 1985 (SA)

Australia Acts (Request) Act 1985 (Vic)

Australia Acts (Request) Act 1985 (Qld)

• Terminating the power of the United Kingdom Parliament to legislate for the Commonwealth, a State or a Territory of Australia: ss 1, 3;

• Declaring that each State Parliament had ‘full power to make laws for the peace, order and good government of that State that have extraterritorial operation’: s 2;

• Abolishing the Colonial Laws Validity Act 1865 (UK) so that the principle of repugnancy had no application to future State laws: s 3; 

• Terminating the responsibility of the United Kingdom Government over State Government matters: s 10;

• Ensuring that State constitutions could be amended only in the manner and form required by State law: s 6

• Ending appeals to the Judicial Committee of the Privy Council from any Australian court: s 11.

Important constitutional interpretations decided by the High Court during Sir Anthony Mason’s tenure include:

• The use of ‘legitimate expectation’ as a threshold question for determining who is owed procedural fairness in administrative law decision-making: Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. (Note: The ‘legitimate expectation’ concept has been treated with caution in subsequent cases. This cautionary treatment will be explored in greater detail in Administrative Law.);

• The interpretation of section 92 of the Australian Constitution (guarantee of freedom of interstate trade): Cole v Whitfield (1988) 165 CLR 360;

• The rejection of the doctrine of terra nullius and consequent recognition of native title: Mabo v Queensland [No 2] (1992) 175 CLR 1.  This is considered at length in chapter 12.

• Section 117 of the Australian Constitution (prohibition against discrimination on the basis of interstate residence): Street v Queensland Bar Association (1989) 167 CLR 1;

• The recognition of an implied constitutional freedom of political communication: Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1;

• The relationship between the law of defamation and implied constitutional freedom of political communication: Theophanous v The Herald and Weekly Times Ltd (1994) 182 CLR 104 and Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211;

• The availability of legal representation in serious criminal trials: Dietrich v The Queen (1992) 177 CLR 292;

• The equitable doctrines of estoppel, unjust enrichment and unconscionability: Commonwealth v Verwayen (1990) 170 CLR 394 (estoppel); David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 (unjust enrichment).  Without going into the details of these concepts of the private law, they rely on ideas of ‘conscience’ to make it easier to enforce promises and protect vulnerable people in commercial transactions. 

This term, borrowed from United States political rhetoric, has been used rather freely in Australia’s culture wars since the 1990s.  If you are interested in understanding its use and misuse, see Tanya Josev, The Campaign Against the Courts: A History of the Judicial Activism Debate, Annandale NSW, Federation, 2017. 

Michael Kirby (1939-), the first openly gay High Court judge, was a Deputy President of the Australian Conciliation and Arbitration Commission (1975-83), the inaugural Chairman of the Australian Law Reform Commission (1975-84), a Justice of the Federal Court of Australia (1983-4), President of the New South Wales Court of Appeal (1984-96) and, most famously for law students, a Justice of the High Court of Australia (1996-2009).  Kirby has been with his partner, Johan van Vloten, for over 48 years.

The first of five children to Donald and Jean Kirby, Michael Donald Kirby was born in Sydney on 18 March 1939. He was educated at the selective Fort Street High School, Sydney. He graduated from the University of Sydney with a Bachelor of Arts (1959), Bachelor of Laws (1962), Bachelor of Economics (1966), and a Master of Laws with first class honours (1967).

In 1962, Kirby was admitted as a solicitor of the Supreme Court of New South Wales. He was called to the Bar in 1967. Kirby’s first judicial appointment was in 1975 as Deputy President of the Australian Conciliation and Arbitration Commission. He was 36.

After successive judicial appointments, Kirby was appointed to the High Court of Australia in late 1996. It was one of the last judicial appointments made by the outgoing Keating Government.

As a High Court judge, Kirby earned the nickname ‘the Great Dissenter’ – and that is actually an appropriation of the term by which Justice Oliver Wendell Holmes Jr (1841-1935) of the United States Supreme Court had been known.  In 2007, Kirby’s dissent rate was 48.28 per cent; his closest rival was Justice Dyson Heydon at 15.52 per cent.  Quantity aside, Kirby’s judgments are admired for their plain English—and eloquent—style. In a 2005 speech entitled ‘Dissent and the importance of judicial diversity’, Kirby said:

There are many in society who hate disagreement, demand unanimity and insist on more consensus, including amongst appellate judges. They speak endlessly of the need for clarity and certainty in the law. Truly, these are goals to be attained if at all possible. But judges must not achieve them at the sacrifice of truth, independence and conscience. There are many failings in the judicial system of our two countries for the judiciary is a human institution. Yet amongst its greatest strengths is the role it gives to judges to state their honest opinions. As citizens, we can agree or disagree with those opinions. But we must vigilantly protect, and cherish, these open procedures. And that includes the expression of disagreement, where it exists.

The dissenting judge may, or may not, be vindicated by history. The true vindication for the dissenting judge arises at the moment of the decision when truth, as it is seen, is spoken and conscience is clear. The right and duty to dissent signals that every judge, whatever his or her values, honestly states the law and its application to the case as conscience dictates. If we think about it, we would not have it any other way. Going along with the numbers and with sheer power may work in Tammany Hall.

It has no place in our courtrooms. 

In 2013, the United Nations Human Rights Council appointed Kirby as President of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea. After detailing North Korea’s violations, the 2014 Report called on the UN Security Council to refer the matter to the International Criminal Court.  Michael Kirby is also a strong advocate of law students studying legal history.