The Honourable Chief Justice Michael Black, Constitution Founders Lecture – Introduction

It is my very great pleasure to welcome you all here tonight to the principal Melbourne courtroom of the Federal Court and to introduce the principal speaker who will deliver the National Archives of Australia Constitutional Founders Lecture on the topic ‘Andrew Inglis Clark: The man and his legacy’.

Before introducing Justice Heerey, I want to express my appreciation to the National Archives of Australia for inviting the Federal Court to host this lecture which the Court is very happy to do. I also want to express my appreciation to the National Archives for the wonderful work that they do in collecting and preserving our nation’s heritage. I have had two illustrations of this recently which I might briefly share with you.

The first concerned an obscure society involved in the research of narrow gauge and light industrial railways. It recently published a book about the phosphate railways of Christmas Island. The book begins with an expression of great gratitude to the National Archives who, believe it or not, had a superb set of records without which the book could not possibly have been written. The narrow gauge railways of Christmas Island are about as far away as you could possibly get from the constitutional fundamentals that the National Archives also house or from the daily life of the Commonwealth that the National Archives preserves for posterity. My other experience reflects, perhaps, a little piece of our constitutional and commercial history. We recently discovered, in the Federal Court’s archives here, the insolvency register of the former Court of Insolvency. The register predates what we call in this part of the world ‘separation’ - that is, it goes back to the records of the Port Phillip District of New South Wales. The Federal Court inherited this wonderful volume from the Federal Court of Bankruptcy, one of our ancestors. I was delighted to have a conversation with the Director-General only this week to agree to his proposal for this volume to have a secure home.

And now a preface to the lecture and the introduction of the lecturer.

In the foyer of the Hobart registry of the Federal Court there is a portrait of Andrew Inglis Clark. It bears the inscription ‘Andrew Inglis Clark, Principal Architect of the Constitution’.

I had the pleasure of unveiling that portrait in September 2001, almost a hundred years to the day after the publication of his so-called ‘little book’, his classic work Studies in Australian Constitutional Law. His ‘little book’ – which I found was Clark’s own modest description in his preface – is still cited.

Justice Heerey will develop that and other themes in his lecture but to emphasise the magnitude of Clark’s achievement I want to speak briefly about the architecture of the Constitution in which Clark played such an important part. The popular slogan that we have ‘a horse and buggy Constitution’ is in fact seriously misleading when we look at the constitutional architecture that the founders, and especially Andrew Inglis Clark, gave to us.

By architecture, of course, we do not mean merely the detail. We mean the basic structure of the Constitution and its division into chapters and especially the content and architecture of Chapters I, II and III.

I am in the happy position of being able to illustrate that architecture in this courtroom because, if you look closely, you will see that the first three chapters of the Constitution are reflected in the text etched on our windows. The architects of this building had the notion that since law was about words (and they recognised of course that it is about much else besides) it was appropriate for a great federal court courthouse to be ‘veiled with words’. The concept is not unknown – some of the public buildings in Washington, D.C. bear powerful inscriptions – although they are not ‘veiled’ with words as our courthouse here in Melbourne is.

If you will look at the architecture of the Constitution as revealed in the windows of this court – although in a sense it is no more than a sketch – you will see that the structure points to the separation of powers, whilst also reflecting the Westminster system of government and the conception that there is necessarily an incomplete separation between the legislative and executive branches. Our building is veiled with words that explain the fundamental structure – the architecture if you like – of our system of government provided for by the Constitution. The architecture informs the content and, when stripped of its absolute essentials as one has to do when one puts the text of the Constitution on a window, the fundamentals of the architecture become starkly visible. And if we refer to the windows you will see that the basic provisions of chapter I (the legislature), chapter II (the executive) and chapter III (the judiciary) are set out.

Unfortunately the architect insisted that there be no spaces between the words but you can still make out that the Constitution provides, in its very essence, that there shall be a parliament to be comprised of the Queen, a Senate and a House of Representatives, that the Senate shall be composed of senators for each state ‘directly chosen by the people of the State’ and that there shall be a House of Representatives composed of members ‘directly chosen by the people of the Commonwealth’.

We have not reproduced section 51 which lists most of the legislative powers of the parliament but the window proceeds to chapter II which deals with the executive government of the Commonwealth and makes provision for the vesting of the executive power of the Commonwealth. Chapter III of the Constitution is headed the judicature (not Andrew Inglis Clark’s expression, but the concept is the same).

We have reproduced the whole of section 71 in the window and it provides that ‘the judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia’ and in ‘such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction’.

Thus, the grand conception is that the High Court shall be a repository of the judicial power of the Commonwealth and this is mandated by the Constitution. When the High Court was established in 1903, the language used by the Parliament reflected that Constitutional fundamental. The High Court was created by the Constitution and established by the parliament. This Court, and its ancestors dating back to 1904, was created by the parliament, not by the Constitution. This means that when all the judges of the Federal Court have retired, the parliament could, in constitutional theory, un-create the court, but it could not do that with the High Court.

Two other fundamental points about the architecture must be mentioned. The first is that the justices of the High Court, and the other such courts created by the parliament, have the protection of section 72 of the Constitution, based on the precedent of the Act of Settlement of 1701. They cannot be removed from office except in the limited circumstances provided for in the Constitution itself. Thus their institutional independence is provided for.

There is another fundamental which is not inscribed in our windows – section 75(v) of the Constitution. The omission is a mistake, because section 75(v) is truly an integral part of the architecture of the Constitution. Justice Heerey describes how it nearly wasn’t there and I will defer mention of it for a moment.

Every visionary will have had the experience of someone tinkering with his or her creation. So it was that Andrew Inglis Clark and chapter III of the Constitution.

Justice Heerey will describe two of these most important tinkerings in his paper. One of them involved the Queensland Government steam yacht Lucinda, a painting of which was commissioned by the Federal Court from the noted marine artist Don Braben. The painting shows the Lucinda at anchor in Farm Cove, Sydney, on Easter Day 1891. You will see that a dinghy is being rowed towards the vessel and I can tell you that the figure in the centre position in the dinghy is Andrew Inglis Clark. Justice Heerey will describe why that moment in our Constitutional history is so important that we commissioned a painting to celebrate it.

Professor Michael White and I have written an article about this painting and why we commissioned it, and what happened on that day.Chief Justice Michael Black and Dr Michael White, ‘The QGSY Lucinda and the Constitution: The Federal Court’s painting of the "Lucinda at Farm Cove, Easter Day 1891"’, Australian Bar Review, vol. 30, 2007, p. 24. The article also explains why there are two such paintings – one in Melbourne and one in Sydney. The one in Sydney actually overlooks Farm Cove where all of this happened.

There is another constitutional point about this painting – this one of a whimsical nature and, as far as I know, unrelated to Andrew Inglis Clark. You will see that there is a structure at the end of Man O’War Steps. Constitutional lawyers present will of course immediately recognise it as a ‘beacon’ within the meaning of section 51(vii) of the Constitution, which gives the Commonwealth power to make laws with respect to lighthouses, lightships, beacons and buoys. It is the only known artistic depiction of a beacon for the purposes of the Constitution and it receives some whimsical treatment in the article.

But to return to Andrew Inglis Clark. Another great contribution of this founder of the Constitution was one that I did not know about until I had the pleasure of reading Justice Heerey’s paper. That was his role in saving section 75(v) of the Constitution. Justice Heerey will explain what Andrew Inglis Clark did in this respect but I would like to explain first why section 75(v) is so significant. Its significance tends to be taken for granted by lawyers and is unknown by almost everyone else. The wording of the section is about as unlike a charter or a bill of rights as you could imagine. The language is certainly not majestic but its effect is profound.

The section simply says that in all matters ‘in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth, the High Court shall have original jurisdiction’.

The point is that the jurisdiction is inalienable. The Federal Court has that jurisdiction too but it can be limited (as it has been) or taken away. That cannot be done with respect to the jurisdiction of the High Court, because the Constitution does not allow it.

The operation of section 75(v) is a large topic in itself and it will be sufficient for this evening’s purposes if I quote Chief Justice Gleeson who observed that ‘section 75(v) of the Constitution … secures a basic element of the rule of law. The jurisdiction of the Court to require officers of the Commonwealth to act within the law cannot be taken away by Parliament’.Plaintiff S157/2002 v Commowealth (2003) 211 CLR 476 at [5]. In a case decided only last year the High Court affirmed the importance of section 75(v) and referred to its ‘special significance’ and it cited Sir Owen Dixon’s view that the purpose of the provision was ‘to make it constitutionally certain that there would be a jurisdiction capable of restraining officers of the Commonwealth from exceeding Federal power’.Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 at [45]. Because the High Court and its powers are grounded in the Constitution, Chapter III assumes a fundamental importance in our constitutional jurisprudence and indeed in our democratic system.

Professor Robin Creyke has said that section 75(v), a ‘guarantee of fair process at the highest judicial level’, is matched by only one other common law jurisdiction, namely South Africa.Creyke, ‘The Performance of Administrative Law in Protecting Rights’, in Campbell, Goldsworthy and Stone, Protecting Human Rights without a Bill of Rights, 2006, p. 112.

And now to introduce our distinguished speaker, the Honourable Peter Heerey.

Justice Heerey was educated at Sir Virgil’s College, Hobart, and the University of Tasmania, from which he graduated with degrees in law (with first class honours) and arts. After four years as a solicitor, his Honour commenced practice at the Victorian Bar in 1967. He was appointed Queen’s Counsel for Victoria (and presumably for Tasmania) in 1985 and was made a judge of the Federal Court of Australia in December 1990 – a few days before my own appointment. In 2000, his Honour was appointed President of the Australian Defence Force Discipline Appeal Tribunal and in 2003, a Deputy President of the Australian Competition Tribunal. Since 2005, he has been a Presidential Member of the Administrative Appeals Tribunal.

His Honour’s judicial work has covered all areas of the Courts’ jurisdiction but particularly intellectual property and competition law, in both of which fields he has a national reputation. His Honour has also written distinguished judgments in the fields of administrative law and taxation.

Justice Heerey is the Chair of the advisory board for the graduate program in intellectual property law at the University of Melbourne. He has published papers in Australian and overseas professional and academic journals in the areas of corporations law, defamation, expert evidence and intellectual property, law and literature and the history of our federation. He has been a judge and resident of McGill University in Montreal, University College Dublin and the University of Tasmania. He has also taught a course in patent and trade mark law at Monash University’s campus in Prato.

His Honour has always had a particular interest in matters concerning his home State of Tasmania where he has managed our Hobart lists for many years. Justice Heerey is a scholar of many things, including the Constitution and, in particular, Andrew Inglis Clark.

This text is drawn from the Chief Justice's speaking notes and is not a complete transcript of the event.

Copyright National Archives of Australia 2017