Selden Society 2018 lecture series—Law and politics in McCawley’s case

Selden Society 2018 lecture series—Law and politics in McCawley’s case


Good evening ladies and gentlemen.
Welcome to the fifth and final lecture in the Selden Society lectures for 2018.
Tonight’s lecture is on the law and politics in McCawley’s case. Thomas
McCawley’s appointment to the Supreme Court in 1917 engendered, serious
some might say frenetic debate at a personal, legal and constitutional level.
His appointment five years later as Chief Justice
following the compulsory and unwilling retirement of Sir Pope Cooper inflamed
controversy again. The personal antipathies which arose then took
decades to subside. We are fortunate to have with us tonight Professor Nicholas
Aroney from the TC Beirne School of Law at the University of Queensland.
Professor Aroney is one of Australia’s leading constitutional lawyers. He has
published over 100 books, journal articles and book chapters in the fields
of constitutional law, comparative constitutional law and legal theory. He
has held visiting positions at Oxford Cambridge, Edinburgh, Sydney, Emory and
Tilburg universities and this topic is one with which he has been familiar for
some time. In 2006 he wrote about this very subject in the Melbourne University
Law Review. Tonight in the centenary year of McCawley’s case he will revisit the
topic and provide some fresh insights into that turbulent time. Professor Aroney. [APPLAUSE] Well thank you very much to those who
organised this event and particularly to Justice Martin. Thank you very much and I
want to acknowledge members of the McCawley family that are here, Peter and
Des in particular who provided me with some very interesting background
information. I think the case is a very interesting one. Indeed of the many cases
that have dealt with the Constitution’s of the Australian States Thomas McCawley
v The King is one of the most significant. Certainly I think the most
fundamental and in its day it was also one of the most controversial. The case
concerned the appointment of Thomas William McCawley as President of the
Queensland Industrial Arbitration Court in early 1917 and as a judge of the
Supreme Court later that year. The appointments were contested because the
statute under which they were made the Industrial Arbitration Act was in
certain respects inconsistent with the Constitution Act of Queensland. The
inconsistency was that while the Constitution Act required Supreme Court
judges to be appointed for life, the Industrial Arbitration Act allowed for
their appointment for a limited term of seven years. The constitutional
significance of McCawley’s case was twofold. Its first significance concerned
the independence of the Supreme Court from the government of the day. If judges
can be appointed for a term of years then the government is in a position to
influence the judges by declining to appoint those who decide cases contrary
to its interests. The second and indeed even more fundamental significance of
the case concerned the status of the Queensland Constitution. Is the
Constitution Act a kind of fundamental law that limits the powers of the
Parliament or is the Parliament in the position of a sovereign legislature
possessing legislative powers effectively unlimited by the
Constitution. The McCawley litigation was intricate and involved. No less than
three layers of courts address the issue, The Supreme Court of
Queensland, the High Court of Australia and the Judicial Committee of the Privy
Council. The Privy Council’s conclusion that the parliament is indeed
legislatively sovereign and therefore free to amend the Constitution Act
simply by legislating inconsistently with it constitutes the essential
proposition upon which all subsequent state constitutional law in Australia
has been founded. In my lecture today I will discuss McCawley’s case under five
headings. First McCawley’s life, second the politics of the time, thirdly the
Queensland Constitution, fourthly the McCawley proceedings and finally the
reasoning of the courts. And so part one, life. Thomas McCawley was born in
Toowoomba on 24 July 1881 the sixth of eight children. Here is a photo of the
young Thomas with his brothers. Thomas’s the smaller boy at the back. Their father
James McCawley was a drover born at Mohill near Drumshanbo,
if anyone knows where that is, in country Leitrim in Ireland in 1839. Their
mother Mary Ann or I think Anna Maria née Stenner was born in Darmstadt
Hessen Germany it appears in 1847. Although I saw a record that referred to
1848 in some records. Consistent with the Roman Catholic faith of the family the
young Thomas was educated at Saint Patrick’s boys school in Toowoomba.
However the financial state of the family forced him to leave school at the
age of fourteen. Working first as a teacher and then as a clerk in a
solicitor’s office. Shortly before his 18th birthday McCawley passed the
public service examinations and was appointed a clerk. First with the
Queensland government savings board bank and later with the Public Service Board
and finally within the Department of Justice. Advancing rapidly through the
ranks he soon became Attorney General James Blair’s private secretary and in
this capacity helped draft the Workers Compensation Act of 1905
and a commentary on the Act. Studying after hours McCawley passed the
prescribed examinations and was admitted to the Queensland Bar in 1907 on the
motion of Blair. McCawley’s worked within the Justice Department must have
been impressive. The late Bruce McPherson wrote of his ability. In 1910 McCawley
was appointed Crown Solicitor by Blair under the Liberal-Labor government of
William Kidston. His public service career reached further heights in 1915
when he was appointed Under Secretary for Justice under the newly formed Labor
government of Thomas Joseph Ryan. None of this occurred without hard work
and in the face of opposition. In his thesis on the McCawley case Tim O’Dwyer
has recounted how the Queensland Law Association opposed McCawley’s
appointment as Crown Solicitor insisting that a solicitor should be
appointed to that position. This kind of opposition would mark much of McCawley’s
career, a conflict and antagonism marked impersonal, partisan, philosophical ways. Part 2. Politics. The government of TJ Ryan was the first Labor administration
in Queensland to be elected with a clear majority in the Legislative Assembly.
True to its platform the government embarked on an ambitious program and
such an agenda attracted political opposition from conservative members of
the Legislative Council. Moreover the disposition of the
government to use its executive and legislative powers in novel ways and to
the fullest extent possible led to court challenges and to heated confrontations
between the government and the Supreme Court. One of the principal legislative
initiatives of the Ryan government was the Industrial Arbitration Act. As
Crown Solicitor McCawley appears to have taken a key role in its drafting
together with Edward Theodore who was then Secretary for Public Works. While
the Act was presented as a measure designed to secure industrial
peace. Theodore made it clear that it was intended to
establish an industrial arbitration system which would strengthen the
industrial unions and promote the interests of the working class. At the
centre of the Act was the newly formed Queensland Court of Industrial
Arbitration. Section 6 established the court and authorised the Governor
General to appoint its judges one of whom was to be designated President.
Subsection 6 of that section required the President and judges of the court to
be appointed for a term of only seven years but eligible for reappointment.
In addition subsection 6 provided that arbitration judges could be
appointed to the Supreme Court bypassing and to an extent contradicting
provisions of the Constitution Act requiring that they be granted life
tenure during good behaviour and setting the maximum number of judges at five. It
was this provision in the Arbitration Act that would be the focus of the
constitutional challenge in McCawley’s case. McCawley was appointed President of
the Arbitration of Court in January 1917. By this time he had deeply absorbed
progressive collectivist beliefs. McCawley had read the Fabian Tracts and
other Democratic Socialist writings of George Bernard Shaw and Sidney Webb. An avid
proponent of Fabianism as Ross Fitzgerald put it, it appears from a copy
of correspondence kindly sent to me by Des McCawley the Thomas dined with Shaw
and with Ryan in London in 1916 and here’s the letter setting up that event.
Des McCawley has also drawn my attention to the fact that McCawley met with the
mother of Pádraig Pearse who had been executed after the 1916 Easter uprising
in Ireland. McCawley was especially influenced by his friend and
correspondent Henry Bournes Higgins, President of the Commonwealth Court of
Conciliation and Arbitration and a Justice of the High Court of Australia.
Letters between McCawley and Higgins reveal a warm and courteous relationship
in which they exchanged books, discussed political matters and confided about
industrial relations matters appearing before them including as it happened
the McCawley case itself. Writing to Higgins about his own little matter
McCawley said that he had no doubt that the decision of the Supreme Court of
Queensland would be adverse to him. The atmosphere of hostility, political
professional and personal certainly favoured such a result. This private
correspondence between the two raises a serious question about the
appropriateness of Justice Higgins sitting on the High Court appeal in the
McCawley’s case as we’ll see. McCawley was certainly effusive in his praise of
Higgins. He regarded him to have been the ‘sheet anchor’ of the entire system of
industrial regulation in Australia. As President of the Queensland Arbitration
Court McCawley would show himself to be a dedicated disciple of his Victorian
mentor. Edward Theodore appears to have been the prime mover behind McCawley’s
appointment. He explained that the government was anxious to secure men of
standing and ability who were also temperamentally fitted for
work of this kind. It has been suggested that all that Theodore meant by this was
someone possessing suitable knowledge to administer a new type of law. A similar
view was expressed by McCawley himself when he later observed that what was
required was someone not diametrically opposed to the contemporary attitude of
intelligent students of industrial problems. McCawley argued that the tenure
of Arbitration Judges should be for a fixed and limited term rather than for
life to ensure that appointees would continue to possess what he called
a reasonably modern industrial outlook. The Arbitration Court should be staffed
by those of great altruistic qualities rather than those who desired power.
Altruistic attitudes and suitable knowledge and an intelligent grasp of
the issues were no doubt necessary qualifications however also required it
seems was a commitment to the progressive social objective of
industrial reform and the alleviation of social injustice
through industrial arbitration. McCawley’s sympathy for the Labor
government substantive policy goals was illustrated from the beginning of his
term as President of the Arbitration Court. When he declared that the court
would not be bound by precedent or strict legal rules but
would be guided by equity and good conscience. As an instrument of social
justice it would set wages by reference to the cost of living as determined by
statistical evidence suitably modified to ensure workers were guaranteed a fair
and average standard of comfort. To do so McCawley continued, the court would
not allow its discretion to be fettered by a rigid rule based on considerations
of consistency. The new sciences of economics, statistics and political
science would provide the data necessary to formulate industrial awards. In this
way McCawley enthusiastically embraced this new change to the law. The
expectations of the government were further realised when in June 1917
President McCawley determined that the Arbitration Court had jurisdiction to
order employers to make union membership a mandatory qualification for employment.
However the government’s objective was not just industrial justice but also
peace. And this implied a certain balance between the conflicting demands of
employees and employers. The resolution of industrial disputes through
arbitration was preferred to industrial action and collective bargaining even
though this placed Ryan, Theodore and McCawley in conflict with the more
militant unions. When strikes erupted in northern Queensland in 1919 McCawley
observed that the majority of the strikes were due to the desire to punish
employers for their departure from the method of collective bargaining and for
approaching his own court the Arbitration Court. McCawley’s more
moderate approach was reflected in his insistence that award wages should
be struck at a rate which industry could afford to pay and his
unwillingness to side with those who quote “habitually disregard the
provisions of the law”. McCawley’s understanding of law as a positive
instrument of reform undergirded his preference for
arbitration of the collective bargaining, and I think this is significant
it also dovetailed with the idea that the Parliament and the government should
be free constitutionally to efficiently enact and administer laws for the
betterment of society. In this context the opposition to McCawley’s appointment
was simultaneously personal, sectarian, partisan and ideological. Other more
senior lawyers were passed over for judicial appointment so the opposition
was not without a personal element. It was after all two senior Queensland silks
who contested the validity of McCawley’s appointment on what they said were quote
“purely legal and constitutional grounds”. Religious factors were also added in the
mix and added a colourful dimension. Ryan, Theodore and McCawley were Roman Catholic their opponents were mostly
Protestant. When the Anglican Bishop delivered an entire sermon criticising
the Ryan government’s various appointments the Catholic Archbishop
replied immediately and in similar terms. The controversy was also partisan and
ideological. Within the arguments of the opposition it is possible to discern
Liberal conservative values of equality of opportunity and free enterprise. When
Theodore stated that McCawley was temperamentally fitted for the
appointment the opposition leapt on the political implication. Leading the attack
Edwin Fowles suggested the appointment was made on the basis of
politics, religion and personal friendship rather than merit, efficiency
and seniority. In response William Hamilton the Secretary for Mines claimed
that McCawley’s sympathy for the objectives of the government did not
mean he was appointed on the basis of his politics or his religion. But while
the controversy was clearly political in character it also had a definite legal
dimension. Too close an association between the government and the courts
would undermine the independence of the judiciary and prevent the courts from
functioning effectively as constraints on government
powers. Supreme Court judges were appointed for life on fixed salaries
precisely to insulate them from political pressure and interference. The
Labor government’s proposal that judges might be appointed for a limited term
undermined this. The leader of the Opposition William Vowles maintained that
it was one of the foundations of our political institutions the judges should
be independent and that this is attained by making them irremovable during good
behaviour. McCawley’s ideological affinity with the Labor government may have made
him temperamentally suited to the position but too close an association
between the government and the judicial branch risked undermining the capacity
of the courts to uphold the rule of law. Part 3. Constitution. The colony of
Queensland together with its constitution came into being pursuant to
letters patent and an Order in Council date at 6 June 1859. Clause 2 of the
Order in Council conferred upon the newly established Queensland legislature the
power to make laws for the colony in all cases whatsoever.
Moreover clause 22 made clear that this included full power and authority to
amend or repeal the Order in Council in the same manner as any other laws.
However at the same time clause 15 adopted certain provisions of the New
South Wales statute which dealt with the commissions removal and salaries of
Judges. Those sections provided that commissions of Supreme Court judges
must continue during their good behaviour and made it lawful to remove a judge
only upon an address of both houses of the Parliament and further provided that
judicial salary must continue to be paid to each judge for the full
duration of their commissions. In adopting these provisions the Order in Council implemented the guarantees of judicial tenure and salary
that had been secured by the famous Act of Settlement in England in 1701. When
the Queensland Constitution was consolidated in 1867 these provisions
protecting judicial independence were reproduced in two statutes, the Supreme
Court Act and the Constitution Act. The scheme of consolidation also
included the repeal of the Order in Council but with one important exception.
Clause 22 of the order containing the fundamental power to amend or repealed
the Order in Council itself and by implication the Constitution remained
untouched. Now the controversy in McCawley’s case concerned the scope and
meaning of these provisions. On one hand the Parliament had been given full power
to legislate including the power to amend the Order in Counsel and the
Constitution Act in any particular, by any ordinary statute. On the other hand
the Order in Council contained provisions which protected the tenure
and salaries of Supreme Court judges as these had been reproduced in the
Constitution Act. However the Industrial Arbitration Act purported to set this
aside enabling the government to appoint judges for something less than life
tenure. Now to be clear in the litigation it was accepted by on all sides that the
amending power included the capacity of the Parliament to amend the Constitution
Act by way of explicit enactment. Expressly directed to its repeal or
amendment. The high constitutional issue was whether the Parliament had power to
do this simply by implication as a result of legislation which was merely
inconsistent with the provisions of the Constitution Act but not expressly
directed to its repeal or amendment. The Colonial Laws Validity Act of
1865 was also relevant. Section 5 of the Act provided that every colonial
legislature would have full power to establish, abolish and reconstitute the
courts of the colony. The section thus confirms the powers of the colonial
legislatures to amend their constitutions in this and all other
respects. And if the colonial legislatures could amend their
constitutions expressly indirectly why not by implication. However section 2 of
the Colonial Laws Validity Act maintained the principle the colonial
laws would can be subject the rule of repugnancy to
imperial laws, regulations and orders. This left open the argument that the
tenure of judges enjoyed by judges was derived from the Order in Council itself
which was itself authorised by an imperial statute so that the Queensland
legislature could not legislate in a manner repugnant to those provisions
without first repealing them. There’s lots of logical puzzles in the case. Part 4.
Proceedings. The controversy in McCawley’s case began when he was
appointed. When the Governor General on the advice of the Executive Council
issued a commission appointing McCawley as a judge of the Arbitration Court and
designating him President for a period of seven years. McCawley duly began to
perform the duties of office along with Judge McNaughton who’d been a
judge of the old Industrial Court. On the 12th of October that is later that year
the Governor issued the further Commission appointing McCawley a Justice
of the Supreme Court and this is when the action began. At a sitting of the
full court of the Supreme Court on 6 December McCawley presented his
commission and requested that the Chief Justice administer the oath of office.
When those King’s Council that I mentioned made their objections to
McCawley’s appointment the Court suggested that it make a pro forma
decision against its validity so that the matter could be determined in some
appropriate manner by which was meant either by the High Court or by the Privy
Council. However McCawley asked that it be treated as an
ordinary matter before the full court of the Queensland Supreme Court. In due
course the submissions were heard. Attorney General Ryan and H D
Macrossan argued for its validity of the appointment. On the 12th of February
1918 a little over two months later Chief Justice Cooper delivered a lengthy
opinion to the effect that McCawley was not entitled to have the oath
administered or to sit or hold a seat as a judge of the court.
The principle reason was that the Industrial Arbitration Act in providing
for appointment for only seven years was inconsistent with the Constitution as
we’ve seen. Four of the five members of the court joined in this opinion Justice
Real dissented on the ground that any provision of the Industrial Arbitration
Act inconsistent with the Constitution was an implied amendment of
the earlier acts and valid. McCawley applied for leave or special leave to
appeal to the High Court. The High Court declined to grant leave
to appeal on the ground that the order issued by the Supreme Court was not a
judgment within the meaning of section 73 of the Commonwealth Constitution and
therefore not within the High Court’s jurisdiction. So it’s getting messy.
Having failed on this point and in order to bring the matter to a head must have
been frustrating. On the 6th of March 1918 McCawley took the required
oaths before a Judge Mcnaughton and thereafter claimed or the rights
belonging to a judge of the Supreme Court. The plan they hatched was that an
application for quo warranto requiring McCawley to show by what authority he held
office as a Supreme Court judge would be initiated as a means of reconstituting
the proceedings in a form that could ultimately get appealed to the High Court.
So the matter had to come before the Supreme Court first. And I’ll move on and
say that what finalised application for that writ was filed on the 16th of
August and the full court confirmed its previous decision pronouncing a judgment
of ouster against McCawley. McCawley immediately appealed to the
High Court which heard argument from the 10th to the 12th of September and delivered its
judgment on the 27th. The majority of affirming the judgment of the Supreme
Court and finding McCawley’s appointment unlawful. The ground of the
High Court’s decision was that McCawley’s commission was unauthorised
by law and therefore invalid and two separate lines
of reasoning were offered. First Chief Justice Griffith and Justices Barton and
Gavin Duffy considered that if the Commission was on its proper
construction for life it was contrary to the Industrial Arbitration Act which
required a short term of office. Alternatively Griffith, Barton and Powers
reasoned that if the commission was consistently with the Arbitration Act
only for a fixed term of seven years then both the Act and the commission
were invalid due to their inconsistency with the requirement that Supreme Court
judges have life tenure. Hence the bind. Hence the conclusion.
Justices Isaacs and Rich and Higgins dissented in a joint judgment Isaacs and
Rich considered that the Queensland Parliament had full power to
legislate inconsistently with the Queensland Constitution in any respect
and to amend it impliedly simply by legislating inconsistently with it.
Higgins agreed with the power their view of the power of the of the Parliament
but preferred a construction of the Arbitration Act which authorised
appointments to for life on his view McCawley’s appointment was in fact for
life and there was no inconsistency with the Constitution. Having lost in the High
Court McCawley appealed to the Privy Council. Due to the constitutional
significance of the case the Attorney General for England intervened and the
matter took some time to be heard. However on the 8th of March 1920 the
Judicial Committee allowed the appeal reversing the decisions of the High
Court and the Supreme Court. Lord Birkenhead delivered the opinion of the
Privy Council largely adopting the reasons of Isaacs and Rich. In
categorically affirming the capacity of the Parliament to amend the Constitution
simply by legislating inconsistently with it. The legality of his appointment
to the Supreme Court having been affirmed McCawley duly took his seat in
May 1920 while continuing to act as President of the Arbitration Court. Ryan,
Theodore and McCawley had seemingly been vindicated but this came at the expense
of a rapidly deteriorating relationship between the government and the Supreme
Court. When Theodore replaced Ryan as Premier in 1921 he introduced
an Act which instituted a compulsory retirement age of 70 and as a
consequence several judges Cooper, Chubb and Real were forced to retire from
office immediately. The Brisbane Courier alleged at the time
that the Act was an attempt to remodel the judiciary more in accordance with
Caucus ideas. Further on the 1st of April 1922 McCawley had his final triumph. The
Attorney General announced that he would be appointed Chief Justice. However sadly
the triumph did not last long. McCawley held that office for only three
years. He tragically died of a heart attack when rushing to catch a train at
Roma Street Station on the 16th of April 1925. Just over there. Which way? Does anyone
have a sense of direction? Sorry, I don’t. Part 5. Reason. We’re on the home straight.
It’s noteworthy that the objections to the validity of McCawley’s appointment
were said to be purely legal and constitutional but in such a politically
charged context how easy is it to distinguish the legal from the political?
Sir Owen Dickson famously insisted that strict and complete legalism is the only
judicial policy that can secure the confidence of those engaged in politics.
Is it possible to understand McCawley’s case in a way that preserves the
integrity of the law against those who would reduce it to politics? Here it’s
important to recall that Sir Owen did not deny the political significance of
judicial decisions especially in Constitutional cases. A Constitution is a
political instrument he said in that it deals with government and government
powers. However Sir Owen also insisted that the considerations relied on by the
courts must always remain legal. They must be
derived from orthodox sources of law and use orthodox methods of legal reasoning.
So what were the real considerations that determine the outcome in McCawley’s
case? The first point to be observed is that the relevant legal materials the
Order in Counsel, the Constitution Act, the Colonial Laws Validity Act and even
actually section 106 of the Federal Constitution were not of themselves
conclusive. On one hand it was open to Chief Justice’s Cooper and Griffith and
their colleagues to conclude that the relevant constitutional provisions not
only guaranteed life tenure for Supreme Court judges but operated with such
force that they could not be amended or repealed they could only be amended or
repealed expressly. However on the other hand it was open to Justices Isaac’s
Rich and Higgins and Lord Birkenhead and the other members of the Privy Council
to consider that the legislative powers of the Parliament were as plenary and as
absolute as the Imperial Parliament and the plenitude of its powers could bestow.
This openness of the relevant legal materials meant that deeper
considerations had to be decisive. Many of these considerations were
theoretical and conceptual in nature. Chief Justice Griffith for example drew
attention to the distinction between what he called fundamental and ordinary
laws a distinction which while known to jurisprudence and well understood by
those governed under written constitutions was unlikely he said to be
understood by English lawyers because under the British Constitution
Parliament is supreme and can make any laws that thinks fit. While stated
matter-of-factly Griffiths observation implied a certain disparagement of
English lawyers and their principle of parliamentary sovereignty. Lord
Birkenhead as if deliberately wishing to show that
an English lawyer need not be as ignorant as Griffith suggested was at
pains to demonstrate in his opinion that he was at pains to
demonstrate his familiarity with the analyses of constitutional writers on
the difference between what he called controlled and uncontrolled
Constitutions. The proposition that the Queensland Constitution amounted to a
kind of fundamental or organic law was particularly prominent in the judgments
of Griffith, Barton and O’Connor. The idea was that the Constitution Act both
defined and limited the powers of the Parliament and state legislation would
only be valid so far as it conformed to the authority conferred by the
Constitution as the Constitution appeared at any point in time. This
suggested a preference to what was then called and might still be called
the American approach to Constitutionalism in which written
Constitutions function as higher law and the courts of jurisdiction to ensure
that legislation conforms to it. Griffith, Barton and O’Connor considered that if
Queensland were to have a genuine Constitution it must be in the nature of
a fundamental law. Griffith, Barton and O’Connor also underscored the importance
of securing the independence of the judiciary. Of course as Isaacs and
Higgins sorry, as Isaacs and Rich pointed out to understand the principle of judicial
tenure to be entrenched as a matter of fundamental law was in fact to go
further than had happened in the United Kingdom where the Act of Settlement
certainly bound the Crown but technically did not bind the Parliament.
But the High Court and Supreme Court majorities were determined to treat the
Queensland Constitution as a kind of fundamental law which bound not only the
government but also the legislature. Against the argument from fundamental
law Lord Birkenhead as well as Isaacs, Rich and Higgins
embraced the principle of parliamentary sovereignty. According to these judges
there could be no middle ground. The Constitution Act was either fundamental
law or an ordinary statute. It was either controlled or it was not but because the
Queensland Parliament undoubtedly had the power to amend the Constitution in
any manner it thought fit the Constitution could not be a fundamental
law. The Parliament was there for a fully sovereign legislature. Isaacs and Rich drew
on constitutional theory to support their conclusions quoting A V Dicey’s
description of the Colonial Laws Validity Act as a charter of colonial
legislative independence. To approach the question in this way was to favour a
specifically British conception of the plenary powers of the Parliament
vis-a-vis the limited powers of the courts. Isaacs and Rich accordingly quoted
the statement of Lord Selborne in the Crown V Borough that it is not for any
court of justice to enlarge constructively the conditions and
restrictions imposed on a colonial legislature and Lord Birkenhead put it
this way that the British people had not in the framing of constitutions felt it
necessary or useful to shackle the complete independence of their
successors. They have shrunk from the assumption that a degree of wisdom and
foresight has been conceded to their generation which may be wanting in their
successors in spite of the fact that those successors will possess
more experience of the circumstances and necessities amid which their lives are
lived. So constitutional theory was an essential part of the reasoning of both
sides however this is another part of the complexity neither theoretical
framework was without its anomalies. Lord Birkenhead,
Isaacs, Rich and Higgins sought to ground the plenary powers of the
Parliament in a series of imperial statutes but in so doing they could not
altogether dispense with the concept of fundamental law at least in the form of
imperial law applying with paramount force. Isaacs for example admitted that
the sovereign powers of the Queensland Parliament were subject to certain
fundamental principles established by the Colonial Laws Validity Act and the
Order in Council including the representative character of the
Parliament, the fundamental conception of the Crown and the
sovereign Parliament of the power sorry the sovereign power of the
Parliament to amend its own Constitution. The difficulty for Isaacs was to
explain how these aspects of the Constitution were fundamental when the
independence of the judiciary was not. The corresponding difficulty for
Griffith was to show how the fundamental aspects of the Constitution could be
distinguished from the ordinary aspects of the statutory law of Queensland. The
problem here was that apart from being contained within a statute labelled The
Constitution there was no formal set of distinguishing criteria but as Isaacs
and Rich and Higgins pointed out there’s no magic in the mere label Constitution
constitutional law can be contained in all sorts of statutes they argued. And
further how could the Constitution Act to be regarded as a fundamental law when
contained in an ordinary statute which can be amended by an ordinary statute. As
Lord Birkenhead put it a polity having both sets of characteristics would be
unique in constitutional history. So we come to the conclusion. If there were
difficulties on both sides why did the judges adopt the positions they did in
the McCawley’s case? Was it ultimately politics? But if so what of the
neutrality of the Constitution? How can it embody the fundamental ground rules
on which all sides of politics agree? It’s tolerably clear that the judges
conclusions generally correspond with their personal, partisan and
philosophical commitments but can the reasoning of the judges be reduced to
expressions of personal preference, partisan commitment and ideological bias?
While the definitive answer may remain elusive
it is at least arguable that the critical ground of the decision was
neither purely legal nor reductively political but lay somewhere between
those two polls at the point of contact as it were between high constitutional
theory and fundamental political philosophy. In other words the case was
ultimately decided in terms of contrasting theories of a political
constitutional nature. The outcome in McCawley’s case seems ultimately to have
turned on a conception of what the Constitution
ought to be. Is it a fundamental law that limits the Parliament or at base merely
a positive law ultimately derived from the legislature? It seemed like a choice
between these two conceptions had to be made. Now what is interesting about this
is that while it you might think that Griffiths’ decision and the decision of
the Supreme Court were driven by the current politics of the situation it’s
fascinating that thirty years earlier at the Federal Convention of 1891 Griffith,
Samuel Griffith himself had said something which aligned very similarly
to the position he adopted in McCawley’s case. During the convention debates he
expressed the hope that the Australian colonies might one day adopt what he
called the American theory. That constitutions are Acts of the people and
that they get the people delegate legislative power to the legislature and
the legislature can only work within the authority given to it. When McCawley’s
reasoning in McCawley is considered in this light it appears the Chief Justice
was striving to interpret the Queensland Constitution in a manner that came as
close as possible to embodying the American theory. He could not claim that
the people of Queensland had established the Constitution through some direct
exercise of their fundamental constituent powers but he could at least
conclude that they enjoyed the benefit of a fundamental law which bound even if
only procedurally the legislative powers of the Parliament. On the other hand the
view of parliamentary sovereignty articulated by Isaacs and Higgins
coalesced neatly with the conception of government that they had articulated
during the Federation debates also in the 1890s. Often in opposition to the
views of Griffith, Barton and others. On this view as Professor McMinn observed
the Constitution was best understood as an organism capable of growth and
adaptation to changing forces in society rather than a carefully regulated
machine for the balancing of those forces. But as I mentioned Thomas McCawley sadly
did not live to see the long term results of the case that bears his name.
Peter McCawley has told me that Thomas was not eligible for a state finance
pension and this placed his family in a great deal of difficulty. However Thomas
did receive a state funeral and many moving memorials were pend in his honour.
Justice Higgins expressed his profound sadness and sympathy for McCawley’s
widow and grieving family and profound poems were written extolling his virtues.
Recent assessments of McCawley’s case may be enlightening. Professor Darrell
Lumb found in it a thoroughly Diceyan approach to parliamentary sovereignty.
Bruce McPherson considered its doctrine of absolute legislative despotism led to
the situation where an executive which succeeds in controlling the Queensland
Parliament occupies a position from which it is able to dominate all the
organs of state. The former President of the Arbitration Court of Queensland the
late Mr David Hall similarly characterised the theory of
parliamentary sovereignty as a dogma and doctrine of legislative despotism. And
indeed reflecting on the appointment of McCawley to the Arbitration Court he
said and I quote “anyone with ears to hear would recognise that the position
of President had been politicised”. Malcolm Cope on the other hand while defending
the McCawley appointment nonetheless expressed concern about the implications
of the case for the independence of the judiciary. Observing that the Privy
Council gave free rein to parliamentary control of the judiciary by a simple
Act of Parliament and Mr John Pike has gone even further expressing the hope
that the High Court might one day revive the doctrine that a law inconsistent
with the state Constitution Act is Invalid. Ones assessment of McCawley’s
case may still depend as Bruce McPherson noted upon the political allegiance of
the narrator however among those who have examined the case
in detail concerned about the resulting legislative despotism is widely shared.
The fact that commentators representing an array of positions on the political
spectrum have expressed at least some regret about the constitutional
consequences of McCawley’s case may suggest that issues that once gave
rise to sharply divided ideological conflict appear somewhat different to us
today with the benefit of hind sight. Thank you. [APPLAUSE] Well nobody could say that the political
and judicial history of Queensland is a dull and barren field. The events of 100
years ago remained both interesting and
instructive and Professor Aroney’s treatment of them reminds us that the
early part of the 20th century was not for the faint-hearted at least in the
judiciary. We were also reminded that the decision in McCawley remains of both
legal and historical interest and that was brilliantly illuminated with
considerable skill by tonight’s speaker. Would you please thank Professor Aroney again. [APPLAUSE] Ladies and gentlemen early next year the
program for the Selden Society lectures in 2019 will become available and we
hope to see you back here then, but for now would you please join us for
refreshments in the gallery.

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