No. 31 (Winter 2015)

History reports itself

Recently, I was in Fiji for a legal conference. More on Fiji in the body of this issue, but

I can report the 800th anniversary of the Great Charter was celebrated only a few

days late! Much has been said on the law and the symbolism of this document. For

my own part, I enjoyed being reminded of the role of language in the law, its use and

its misuse, intentional or otherwise. Two examples.

First, it would not be unreasonable to think that the name was attached to the

charter by later historians mindful of its… greatness? Wrong. In 1218, it was named

the Great Charter in order to distinguish it from its younger brother the 1217 Charter

of the Forest.

Second, there is a strain of thought which says that the document’s modern

relevance is largely a result of Sir Edward Coke’s politics (and his lasting influence on

US jurisprudence). Pertinently, the debate is the extent to which the idea of

“liberties” referred to in (and granted by) the document can be taken as founding an

ideal of “liberty” in the more modern sense.

The latter example will doubtless be debated at a conference in Adelaide in

September. The conference’s theme is constitutional patriotism, and I commend it to

readers.

David Ash, Editor

A timely reminder

The Civil Procedure Act was passed by the NSW legislature in 2005. It and like

reforms in Australia were founded upon the 1996 Woolf Report, Access to Justice. A

decade after the Act, it is timely to note the inroads into the overriding purpose

which have occurred in England. There, CPR rule 1.2(b) qualifies the purpose thus:

The court must seek to give effect to the overriding objective when it…

interprets any rule subject to rules 76.2, 79.2 and 80.2, 82.2 and 88.2.

The subject of the qualification is clear when one looks to those parts:

• PART 76 - PROCEEDINGS UNDER THE PREVENTION OF TERRORISM ACT 2005

• PART 79 - PROCEEDINGS UNDER THE COUNTER-TERRORISM ACT 2008 AND PART 1 OF THE TERRORIST ASSET-FREEZING ETC. ACT 2010

• PART 80 – PROCEEDINGS UNDER THE TERRORISM PREVENTION AND INVESTIGATION MEASURES ACT 2011

• PART 82 - CLOSED MATERIAL PROCEDURE

• PART 88 – PROCEEDINGS UNDER THE COUNTER-TERRORISM AND SECURITY ACT 2015

The qualification is a pungent reminder of the difficulties faced by liberal

democracies when balancing a universal presumption of equality before the law and

what is sometimes described as a constitutional metanorm, salus populi suprema lex

esto (let the safety of the people be the supreme law).

Coming up – an address on Lord Eldon in Brisbane

The Selden Society Australian Chapter invites you to an address by Dr Andrew

Stumer on Lord Eldon Thursday 23 July 2015 5.15pm for 5.30pm Banco Court, Level

3, Queen Elizabeth II Courts of Law, 415 George Street, Brisbane. RSVP to

events@sclqld.org.au.

The 2015 Forbes Lecture in Sydney

This year’s annual Forbes Lecture will be presented by Emeritus Professor David

Barker on Wednesday 11 November 2015. The topic is the History of Legal Education

in Australia.

Constitution patriotism – An upcoming conference in Adelaide

On 17 & 18 September 2015, the University of Adelaide will be hosting Constitutional

Patriotism: Founding documents and the emotions from Magna Carta to the

Declaration of Human Rights.

Keynote speakers include Professor Paul Halliday, History and Law, University of

Virginia; Professor Sharon R Krause, Political Science, Brown University; and

Professor David V Williams, Law, University of Auckland.

The conference site records:

When it was sealed in 1215, Magna Carta was essentially just a treaty

between an embattled Norman king and his fractious Anglo-Norman

aristocracy, and most of its provisions were irrelevant to the vast majority of

the common people. It is only in retrospect, and through its investment with

patriotic emotion by interested rhetoricians like Sir William Blackstone in his

Commentaries, that this document and its origins at Runnymede have come to

symbolize liberty resisting arbitrary power through ‘due process’ of law.

Arguably, the treatment of Magna Carta by Blackstone (and countless others

across the centuries) is an example of ‘constitutional patriotism’.

Constitutional patriotism is the practice of constructing a unifying ideology

that emphasizes emotional attachment to the arrangements of government,

and is common in multi-ethnic and/or pan-national states that are or aspire to

be democracies. Jurgen Habermas developed the concept in the context of

post-war Germany as a means of combating nationalistic and racial

approaches to establishing state identity. As such it is a useful heuristic tool

for discussing foundational constitutional documents and their subsequent

emotional appeal (or lack of it). Indeed studying constitutional patriotism may

assist in understanding the causes and consequences of collective emotions

generally, because affective investment in ink and parchment surely requires

special efforts of rhetorical engineering and particular forms of reception.

Queries can be addressed to Jacquie Bennett, jacquie.bennett@adelaide.edu.au.

Registration opened 6 July 2015. www.historyofemotions.org.au/events.aspx.

The rule of law in Fiji

The 2009 constitutional crisis was ill-received by many countries including Australia.

At a recent conference, attendees heard papers delivered by persons with different

views of the events, one a former High Court judge and another the current Director

of Public Prosecutions.

The point was well made that whatever one’s own view of the event, there is an

ongoing process of constitutional development since independence. Two

consequences of which I was unaware: on the legal front, judges from Sri Lanka now

fill the void left by the departure of Australian and New Zealand-based judges; on an

economic front, China now fills the void left by Western investors.

Sir Charles Lilley, Premier and Chief Justice of Queensland

I write from my chambers on Martin Place in Sydney, named for Sir James Martin,

member of a select club, those colonial figures who achieved the premiership and

the chief justiceship. Dr JM Bennett’s latest work is about Martin’s club colleague,

Queenslander Sir Charles Lilley. As Bennett’s readers have come to expect, he draws

upon often limited primary material to draw a firm yet fluid picture of a fascinating

Australian. This, the 15th in the Lives of the Australian Chief Justices, is published by

Federation Press.

Old Law, New Law

Our nation is investigating changes to the institution of marriage. Keith Mason is a

former president of a court of appeal and currently chancellor of an Anglican

diocese, and also writes very well, so the first three chapters of his second legal

miscellany – Women (and Men) in the Law, Matters Matrimonial, and A Little

Chapter about Sex – provide reminders of the often eccentric outcomes from the

necessary intercourse between law and lust. The balance of the book is just as good.

Also published by Federation Press.

© independentaustralia.net

Excursions in the Law

In his miscellany, Keith Mason records:

Parliament can at times play tricks or enact apparent nonsense. Heerey J once

complained that “there are two quite different pieces of legislation, each

called the Migration Act 1958. If there is any reason for inflicting this

confusing regime on those who have to work with migration legislation, it is

not readily apparent to me.”

It is hardly surprising that Heerey’s own reflections on the law are a joy to read. The

first section of the book focuses on Andrew Inglis Clark, whose ill-health probably

prevented him from exploiting his work as “the primary architect of our

Constitution”, as Heerey rightly describes him. Having waged my own battle with the

AEC when it chose to rename the federal seat of Lowe,1 I can only sympathise with

efforts to get a federal set named for him.

For me, the most fascinating element in the book is a letter from Inglis Clark to his

co-fathers of federation.

But first, context. In 2015, it is easy to recognise the fall and rise references to

American constitutional jurisprudence in our High Court decisions. Early reasons

unsurprisingly made frequent reference. As the Court – and the nation – grew,

reliance unsurprisingly tailed off. In more recent years, a mature nation – and Court –

has less hesitation in (re)turning to US and other sources. We have been largely

spared an Australian Exceptionalism.

And if any of us asked each other whether we know of just one US constitutional

case, many of us and probably most would reply “Marbury v Madison”. So too any of

us at federation; Quick & Garran refers to it twice as “the great case”. Imagine my

astonishment – and my rekindled admiration for Clark – when I read Heerey’s report:

1 http://www.aec.gov.au/Electorates/Redistributions/files/2009/nsw/objections_comments/NSW0008_david_ash.pdf.

At the 1898 convention, debate arose as to whether the clause which later

became s 75(v) should be struck out. Clark, following proceedings closely from

Hobart, telegraphed Barton to remind him of [the decision]. Barton wrote

back thanking Clark and saying: “None of us had read the case mentioned by

you, or if seen it had been forgotten – it seems to be a leading case. I have

given notice to restore the words on reconsideration of the clause.” The clause

was duly restored by Barton, citing the American decision – although without

public acknowledgment of Clark. “None of us” must presumably have included

Griffith, Kingston and Deakin.

This is important stuff. NSW lawyers will be aware of

the excellent portrait of Mary Gaudron in that state’s

Bar Common Room. The judge chose the words of this

pivotal clause as the background.

Heerey’s book is published by Desert Pea Press.

The Holt Prize

Two of the above books are published by Federation Press. It was with sadness that

the Flyer notes the death late last year of Christopher Holt, a co-founder. His

contribution to legal publishing – and support for legal history – is not to be

understated. The publishing house has established a fitting memorial in the Holt

Prize.

Winter Quarters2

In 1815

On 18 June, Napoleon meets his Waterloo.

In 1865

On 13 June in the last year of the US civil war, WB Yeats of a terrible beauty is

born.

In 1915

Leo Frank was lynched in Cob County, Georgia. His case raised themes of race

and in particular drew attention to antisemitism.

In 1965

On 27 July, President Johnson signed a bill requiring cigarette makers to print

health warnings on all cigarette packages about the effects of smoking.

2 Usually, the Flyer draws the references from timelines.ws or from en.wikipedia.org.