Carter, Justin --- "Queensland Judges on the High Court" [2006] JCULawRw 13; (2006) 13 James Cook University Law Review 269

• QUEENSLAND JUDGES ON THE HIGH COURT

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QUEENSLAND JUDGES ON THE
HIGH COURT

Dr. Michael White QC and Aladin Rahemtula (eds)

Brisbane: Supreme Court of Queensland Library, 2003

Price: $50.00

The fluid style inherent in speech reduced to text – rather than the other way around – gives the reader pause to reflect upon the matter at hand. The preparation of judgments primarily for oral delivery demanded the pithy exposition of legal reasoning. In his first judgment as Chief Justice of Australia, Sir Samuel Griffith delivered the opinion of the Court concerning the very jurisdiction of the new High Court of Australia in granting leave for appeal.^[1] The case is reported in twelve pages in the Commonwealth Law Reports, including a digest of the facts and argument for both plaintiff and defendant. The judgment itself consumes a mere half of the allocated pages, as reported by C.A. White, Barrister-at-Law. Granted, there was not a lot of authority to consider: it was very early days. The deft handling of complex, high-order legal principles in such a manner, however, is instructive as to the publication of accessible and enjoyable legal scholarship. Queensland Judges on the High Court, produced by the Supreme Court of Queensland Library, is the product of a sample of eminent legal professionals who honour this tradition. That is, insofar as the book is based upon seminar proceedings delivered by the respective authors, the same effective transmission of ideas occurs.

That judgment was also the first handed down by the Chief Justice from Queensland, and is but one of the 16 cases he heard alone; one of the 908 total cases Chief Justice Griffith heard. In addition to the engaging biographical pieces and thematic essays, the book also contains an insightful statistical analysis of the decisions of the five judges profiled contained in the Commonwealth Law Reports – Sir Samuel Griffith, Sir Harry Gibbs, Sir Gerard Brennan, Sir William Webb, and Sir Charles Powers. Further, the volume includes colour portraits of each of the High Court Justices, adding a valuable dimension to the biographical sketches that are the focus of the text. These deceptively minor inclusions differentiate this volume from the benchmark Oxford Companion to the High Court, which aims for – and certainly achieves – encyclopaedic mastery. To the contrary, Queensland Judges on the High Court provides a specific and select review of the great Queensland jurists that have been appointed to the nation's highest court. It is strictly biographical, where the Companion is thematic. It is narrative, where the Companion is analytical; that is, Queensland Judges delivers high-level scholarship in a readable manner. Importantly, however, whereas the Companion is national, this book focuses on Queensland's contribution to the pantheon of High Court judges. One must recognise, however, that despite the necessary overlap in content these two volumes are entirely different in focus. This is not to suggest that either is better or worse than the other; they are equally intellectually stimulating. It is merely to note that each book advances different purposes: the Companion seeks to be all-encompassing of the history of the High Court, whereas Queensland Judges provides an insightful immersion into the Queensland characters that sat in the nation's highest court.

Each of the profiles in the book is flavoured by the perspective of the particular commentator. For example, Sir Harry Gibbs' review of a miscellany of cases presided over by Chief Justice Griffith is staunchly black-letter in its approach, whereas the commentary provided by Mr. Patrick Keane – now a Justice of the Queensland Court of Appeal – is historical, albeit founded in case law, in its consideration of Chief Justice Dixon's perceptions of Sir Samuel Griffith. A former Associate of Sir Harry Gibbs, Justice Williams, profiles his mentor both personally and professionally; recounting life developments alongside an exhaustive review of Sir Harry's reported judgments in the Commonwealth Law Reports. Another former Associate, Justice Jackson, comments upon Justice Williams' paper and provides an incisive exposition of the socio-political context of Gibbs' reign as Chief Justice of the High Court. Professor Gerard Carney, former Executive Associate to Chief Justice Brennan, seeks to identify the principles that guided Brennan's approach to the development of the common law. He recounts three: the dignity of every human being, the rule of law, and the maintenance of public confidence in the judiciary. Carney demonstrates how these principles are manifest in the judgments handed down and extra-judicial commentary made by Brennan. Justice Atkinson of the Supreme Court of Queensland, in her commentary on Carney's piece, highlights Chief Justice Brennan's commitment to the democratic compact through an exposition of his reasoning in the Mabo decision.^[2] Professor Suri Ratnapala of the University of Queensland deconstructs the High Court jurisprudence of Sir William Webb in terms of Lockean and Hobbesian conceptions of a constitution and, through a review of select judgments, concludes that Webb was more inclined to a Hobbesian approach. Dr. Dayle Smith, a former barrister and currently a solicitor in Brisbane, provides intriguing insight into Webb's extra-judicial activity as President of the Tokyo War Crimes Tribunal. James Douglas QC, now a Justice of the Supreme Court of Queensland, provides a surprisingly detailed account of the judicial work of Sir Charles Powers; surprising, that is, given the paucity of judicial work under consideration. His Honour provides a compelling account of an otherwise overlooked High Court judge. Professor Kay Saunders, an anthropologist and historian, reveals the political aspect of Powers' public life as a member of the Legislative Assembly in Queensland. He served from 1888 to 1896, during a period which forged his liberal politics as a suitable Labor candidate to the High Court. His background in industrial relations and the promotion of workers' rights qualified Powers for his role with the Commonwealth Arbitration Court and, later, in his contribution – albeit peripheral – to the development of the conciliation and arbitration jurisprudence of the High Court of Australia.

As a matter of historiography – of which the author claims no expertise – it is interesting to note the manner and extent of authority that each of the authors draw upon. For example, the chapter by Sir Harry Gibbs is noticeably lacking in cited authority for the commentary made, aside from scant citation references for the cases referred to. Clearly Sir Harry's reputation does away with such formality. The other judicial contributions are, however, replete with footnotes: though these, too, tend to be restricted to the law reports. The scholarly contributions from Professor Carney and Dr Smith, however, move beyond the black letter of the law to secondary observations from the academy. Professor Suri Ratnapala even goes so far as attempting to reconcile the black letter law with political philosophy. Yet Professor Kay Saunders – the only non-legal contributor to the volume – stands out in her approach to the material. An anthropologist and a historian, Saunders refers to a variety of historical sources to support her claims. Perhaps it takes an expert to illuminate the historical significance of Powers' judicial career.

In addition to the biographical pieces, the book also contains three thematic essays. These include "Constitutional Interpretation in the High Court of Australia" by Justice Selway, "The Queensland Contribution to the High Court" by Justice Callinan, and "The Griffith Doctrine: Reservation and Immunity" by Dr. Nicholas Aroney. In his essay, Justice Selway comments on the shift in the interpretive jurisprudence of the Australian Constitution from a statute emanating from the Imperial Parliament to a compact of popular sovereignty, and the implications for constitutional interpretation as a result of the shift. In discussing the alleged paradigm change, however, Selway provides an illuminating examination of the interpretive approaches of the first Gleeson Court (running until the retirement of Justice Gaudron). His Honour posits the principled approaches of Justices McHugh and Kirby against the flexibility of the remaining five members, and advocates the pragmatic textualism of the latter group.

Justice Callinan's work effectively reviews the papers presented at the conference by the other contributors with reference to representative volumes of the Commonwealth Law Reports. The most intriguing aspect of His Honour's paper, however, is the catalogue of the ways in which judicial work has changed in the past one hundred years. Of particular note are the length of judgments, the lack of unanimous judgments, and the number and complexity of cases. Despite the increasing surge of materials that the High Court has come to consider and produce itself, however, Justice Callinan remarks: "Each litigant is entitled to the consciously reached and expressed opinion of all the sitting appellate judges."^[3] His Honour directly criticises Justice Selway's categorisation as having missed the point – indeed, Chief Justice Gleeson questions such an approach in his Foreword^[4] – but views this as an attempt at ordering the increasingly complex environment in which the Court operates.

Dr. Nicholas Aroney's paper on the Griffith doctrines of reservation of state powers and intergovernmental immunities, which were said to be exploded by the Engineers Case,^[5] provides historical and theoretical context to the rise and fall of the first wave of federalist jurisprudence. Aroney espouses the approach taken by Griffith, Isaacs in Engineers, and Dixon through various cases, as distinct methods of interpreting a constitution in a federation. By comparing and contrasting the different styles, Aroney seeks to highlight the importance of Griffith's long-eclipsed contribution to Australian constitutional law to contemporary cases.

This handsome volume is a product of the Supreme Court of Queensland Library's History Program, which endeavours to preserve the State's legal history. Certainly history would have long forgotten the questionable contribution of Sir Charles Powers (in sentiments echoed by the various contributors to the volume) were it not for the efforts of such initiatives. The text certainly achieves that end; but it goes beyond that to demonstrate the continued importance and relevance that these individuals and the ideas they promulgated. The book is concise and well-written, providing an accessible introduction to the figures portrayed. It is helpfully indexed thematically, as well as traditional case and statute tables. It also includes a select bibliography for further reading about some of Australia's juridical giants. As Justice Callinan notes at the beginning of his chapter, for almost a quarter of its existence the Chief Justice of the High Court has been a Queenslander.^[6] It was in recognition of this fact that the Supreme Court Library of Queensland convened the conference that preceded this collection of essays, Queensland's Contribution to the High Court, in commemoration of the centenary of the High Court of Australia. Queensland has produced some outstanding judicial figures whose national prominence oftentimes overshadows their Queensland lineage. This volume appropriately reminds us of this fact.

Mr. Justin Carter

LLB(Hons) BIntBus (Griffith)

Legal Associate, Family Court of Australia, Brisbane Registry

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^[1] Delgarno v Hannah [1903] HCA 1; (1903) 1 CLR 1.

^[2] Mabo v State of Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1.

^[3] Justice Ian Callinan (2003) "The Queensland Contribution to the High Court" in Michael White and Aladin Rahemtula (eds), Queensland Judges on the High Court, p. 218.

^[4] Chief Justice Murray Gleeson (2003) "Foreward" in Michael White and Aladin Rahemtula (eds), Queensland Judges on the High Court, p. ix.

^[5] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129.

^[6] Justice Ian Callinan (2003) "The Queensland Contribution to the High Court" in Michael White and Aladin Rahemtula (eds), Queensland Judges on the High Court, p. 200.