The Hon Justice Andrew Greenwood of the Federal
Court of Australia
Doctor of the University
Friday 19 December, 2014
Occasional Address to graduates from: Arts, Education and Law
Chancellor, Vice-Chancellor, members of Council, members of staff, distinguished guests,
graduates, ladies and gentlemen.
First and foremost, I congratulate all of the graduates on achieving a degree from this
University in the disciplines represented here today – whether a Graduate Diploma,
Graduate Certificate, a Bachelor degree or higher degree. Today is fundamentally a time for
recognising your accomplishments and the support you have received from family, partners
and friends in making this important journey.
This University bears the surname of Sir Samuel Walker Griffith 1.
Griffith was first elected to the Queensland Legislative Assembly in 1872 aged 26. He then
served as Attorney-General for four years 2 then Leader of the Opposition for four years 3,
Premier for five years4 and then a second term as Premier and Attorney-General for another
four years (after a short period in Opposition) until 1893 5, when he was appointed Chief
Justice of the Colonial Supreme Court of Queensland aged 47. However, notwithstanding
this demanding political career at the height of colonial politics, Griffith maintained a
dominant practice at the Bar as the pre-eminent counsel of his generation 6. Importantly,
the Supreme Court of Queensland Library now holds 183 of Griffith’s opinions provided as
counsel to instructing solicitors 7.
However, one of his most significant achievements (and there were many) was the drafting
in late March 1891, a few days before the Sydney Convention began, of a Bill for an
Australian Constitution. He wrote the draft on board the Queensland Government
Steamship, the Lucinda, which had been taken to Sydney specifically for the 1891
Convention 8. Delegates from each of the Australian colonies met in Convention to see
whether colonial rivalries could be put to one side so as to achieve the high vision of a
unified Australia, under a federal model, with a written Constitution that distributed the
exercise of public power between a proposed new Commonwealth polity and new State
polities (rather than colonies) 9.
It was an ambitious vision for a new nation - a nation perceived to have unlimited potential.
Griffith, Barton and Kingston then revised the draft Constitution in a 13 hour session 10 and
Griffith presented the final draft to the 1891 Convention.
2
Importantly, Griffith was not only an outstanding lawyer but he was a classicist having
translated much of Dante’s Divine Comedy although not with universal critical acclaim 11. He
read translations of Socrates, Plato and Aristotle; had an abiding commitment to the liberal
arts and the humanities; and wrote of the critical role of education in a civil society. He also
avidly read Karl Marx12.
Griffith also codified the criminal law which, prior to his work, formed part of the common
law. His remarkable Criminal Code was first enacted in Queensland and is the foundation of
the criminal law in this State, Western Australia and Tasmania and has been adopted in a
number of international jurisdictions. Griffith would undoubtedly have been proud of the
fact that this University’s School of Criminology is regarded as one of the finest in the
country and one that makes a major international contribution to studies in criminology.
Griffith did not attend the second Convention of 1897 leading into 1898 but his draft
Constitution, with contributions from Barton, Kingston and Inglis Clark, was adopted almost
in its entirety. As Professor La Nauze observes, “Contemporaries were unanimous in
assessing by far the principal role in the drafting of the Constitution of 1891 to Griffith” 13. In
1903, he became the first Chief Justice of the High Court of Australia. He was the obvious
choice. The Hon Murray Gleeson, a recently retired Chief Justice of the High Court, has
described Griffith as “one of the most powerful thinkers to sit on the High Court” 14.
At the centre of that powerful thinking was not only a refined and practised technical skill as
a lawyer in civil and criminal law but also skills of rigorous critical thinking, interpretation,
judgment and discernment, a product of both his interest in the humanities and the
discipline of law.
Griffith would no doubt have agreed with the views of Harvard University’s Professor Drew
Faust who recently observed: “In the humanities we learn how civilisations have varied
across space and time. We come to understand that societies have been different and
could and will be different again” 15. Griffith was looking to federal arrangements for a new
Australia that would endure across space and time.
The Constitution for the new Federation which began in 1901 was, as Alfred Deakin
observed in 1902, “designed to remain in force for more years than any of us can foretell,
and to apply under circumstances probably differing most widely from the expectations now
cherished by any of us” 16. The founders understood that the circumstances confronting the
Australian society by the 21st century would be very different indeed from those prevailing
at Federation. Globalisation, Australia’s international economic integration with Asia, mass
communication, the emergence of Google and Mr Zuckerberg in the form of Facebook, the
extent of the use by the Commonwealth of the external affairs power as Australia engaged
with the International Community in entering into various Conventions, and the High
Court’s recognition of common law indigenous native title rights and interests, are seven
obvious examples.
The Australian Constitution not only distributes power between the Commonwealth and the
States but, at a federal level at least, imposes a true separation of powers between the
executive, the legislature and the judiciary 17. In the Federal Court of Australia, we exercise
the judicial power of the Commonwealth. One important contemporary aspect of that role,
is the Court’s role in determining whether the executive government has exceeded the
limits of its executive power and whether Commonwealth decision-makers have exceeded
3
the limits of their statutory decision-making powers. Determining the limits of
Commonwealth executive and legislative power is a critical entrenched constitutional role of
the federal judiciary 18.
The founders of the Federation would probably not have foreseen the extent to which the
exercise of federal judicial power would operate in the 21st century in closely examining the
legality of Commonwealth decision-making19. One important jurisdiction of the Federal
Court involves, put simply, standing between the citizen and government to test the legality
(although not the merits) of government action 20.
Shaping the changes in a society across space and time that Professor Faust spoke about
engages (among others) lawyers, criminologists and individuals trained in critical thinking
that characterise the liberal arts, the humanities and the social sciences. Society is, of
course, also largely shaped by changes in scientific understanding and technological
advancement.
The society we enjoy, embedded in a contemporary sense in the Australian Constitution, is a
liberal democracy based on responsible and representative government and the rule of law
administered under an independent and uncorrupted judiciary. The rights and freedoms we
often take for granted can be fragile and need to be defended on rational grounds applying
the “rules of reason”.
Now, with your educational background from this University you need to think about the
vision you have for a contemporary society; what constitutes informed best practice; and
how you might shape changes to its fundamental institutions recognising of course, as
Martha Nussbaum of Chicago University has observed: “All modern democracies, however,
are societies in which the meaning and ultimate goals of human life are topics of reasonable
disagreement among citizens who hold many different religious and secular views” 21.
In thinking about societal change, I briefly give you these thoughts and principles:
First, question everything and assume nothing. Question whether orthodoxy continues to
be soundly based or whether orthodoxy has become heterodoxy. Things may not be, as
they appear to be. Keep in mind Daniel Barenboim’s recent observation about the
Austrians 22. The Austrians, he said, have been remarkably successful in convincing the
world that Beethoven was Austrian and Hitler was German.
Second, hold all public institutions to account whether churches, government, universities,
the courts and every agency or body exercising public power and, for that matter, all bodies
exercising obligations and duties of trust and confidence to groups or individuals within the
society.
Third, always remember that the vision you have for yourself or a society is largely a
function of the horizon you look to. So look up. Look, as Griffith did, to a large horizon.
Question and dare to be different. You can make a difference. Be thought leaders for your
communities. Find the time to dream a little but remember Noel Pearson’s observation:
“Leadership requires dreaming at night and walking by day, and trying to avoid dreaming by
day and sleepwalking at night” 23.
4
Fourth, don’t be afraid to be unpopular. If your training and analytical method tells you that
a position you have adopted is correct, argue for it even when it is unpopular or particularly
unpopular. Be ready, however, to listen to the merits of arguments on topics about which
“minds might reasonably differ” as Martha Nussbaum observes.
Fifth, many people, unfortunately, live within the limits of their own experience. Push
yourself out of your particular discipline and experiences. Read widely outside your
immediate field of interest. Maintain an inquiring mind in all things and a sense of
excitement about new knowledge. Be wary of people who don’t know what they don’t
know. Their horizons are too low.
Sixth, as the United States Libraries Association says, “read and the force will be with you”.
Seventh, always remember that, paradoxically, the future is not what it used to be. The
shape of the future as one might think of it today (and expected to be) may well be radically
altered by the immediacy of daily events, as the Lindt Café shows.
Eighth, always maintain a sense of proportion, humility and dignity in your dealings with
people.
Ninth, remember, obfuscation may be thought to be an art but it is a vice, not a virtue and
forms no part of critical thinking.
Tenth, be true to yourself. You will always know when you are letting yourself down.
Lastly, be wary of the fickleness of apparent public opinion. An example of it is this. You
will recall that in April 1814 Napoleon abdicated as Emperor at Fontainebleau and entered
into exile on the Island of Elba. In March 1815 when the European powers were haggling
over the terms of the Congress of Vienna, Napoleon escaped from Elba and launched his
100 day adventure that ended in defeat at the Battle of Waterloo. On escape from Elba his
first exercise was to, in effect, recapture France and reassemble the core of his former army
support, which he did. These are the headlines from the French newspaper Le Moniteur
from March 1815:
March 10th,
Elba, 'The beast has escaped its lair!'.
March 12th,
'The fiend lands on the shores of the country he defiled!'
March 14th,
'The rascal pillages the town of Frejus!'
March 16th,
'Bonaparte evades arrest by loyal troops, heads North'
March 20th,
'Napoleon advances on the capital'
March 22nd,
'The Emperor is at the gates of Paris'
March 23rd,
'His Imperial Majesty is to enter the city today'
I thank the Council of the University for this honour today. I accept it not merely on my own
behalf but also in recognition of the role played by the Federal Court of Australia in the
exercise of the judicial power of the Commonwealth within our constitutional structure for a
resilient liberal democracy that endures through “space and time”.
1
Griffith was born on 21 June 1845 at Merthyr Tydfil in Wales. He was the second son of nine children born to
Rev Edward Griffith (a dedicated Congressional minister) and his wife, Mary Griffith, née Walker. In 1853 the
family arrived in Australia to enable Rev Griffith to help with the work of the Colonial Missionary Society. That
work took the family to Ipswich in 1854 which brought young Samuel, aged 9, to Queensland. At the age of
22, having completed Articles in 1867, he obtained admission to the Queensland Bar.
2
1874-1878
3
1879-1883
5
4
1883-1888
1890-1893
6
As to Griffith’s role at the Bar, the extent to which he dominated cases reported in the Queensland Law
Reports and the scope of his wide-ranging legal practice – especially from criminal law to constitution law, see
The Griffith Opinion Books, an address by JD McKenna QC, Queensland Supreme Court Library Studies Series,
given on 22 August 2013 and published in the Queensland Legal Yearbook, 2013. Mr McKenna QC observes at
Part III of his Paper that Griffith’s work practices were this. He prepared his legal work in his own handwriting,
at an astonishing rate of about 75 words per minute (quoting A D Graham’s The Life of Sir Samuel Griffith,
Powells & Pughs, 1939 at pp 87, 93). However, Griffith’s handwriting was virtually illegible and thus others
were retained to rewrite his work into legible form. This practice which he adopted at the Bar was also the
practice he adopted in the writing of his judgments.
7
By reason of an amendment to the Supreme Court Library Act 1968 (Qld), the Griffith opinions were able to
be deposited with the Supreme Court Library for public archival storage. The material can be used for
historical or educational purposes. Whilst only those opinions which are more than 100 years old are
presently available for research purposes, the remaining opinions are being preserved by the Library for use by
future researchers once the opinions become “historic” and pass the 100 year threshold.
8
For details of the Lucinda’s party, and her movements, see Griffith’s Diary for 27-29 March 1891 and Griffith’s
letter to Julia Griffith dated 2 April 1891. See also the remarks of Professor John La Nauze in The Making of the
Australian Constitution, Studies in Australian Federation, Melbourne University Press, 1972 at p 65.
9
See generally, Samuel Walker Griffith, Dr Roger Joyce, University of Queensland Press, 1984 and particularly,
The Making of the Australian Constitution, Professor J.A. La Nauze, Studies in Australian Federation,
Melbourne University Press, 1972.
10
On 28 March 1891, Griffith, Barton and Kingston worked on a revision of the draft from 10.00am to 11.00pm
anchoring the Lucinda for the night at “The Basin” off Pittwater. The next day Griffith worked all day on the
draft in discussions with Clark, Kingston and Barton.
11
It seems that between 1900 and 1914, Griffith translated into English approximately 14,000 lines of the
Divine Comedy. However, one reviewer suggested that the poetry of Dante had “escaped, almost entirely
from Sir Samuel’s industrious fingers”: The English Review, March 1912 quoted by Sir Anthony Mason, Griffith
Law Review (1995) Volume 4, No. 1, p 1.
12
See Dr Roger Joyce’s work, Samuel Walker Griffith, 1984.
13
The Making of the Australian Constitution, Professor JA La Nauze at pp 75 and 76. In 1898, Alfred Deakin
wrote that while Barton and Clark had some hand in the drafting, the draft “as a whole and in every clause the
measure bore the stamp of Sir Samuel Griffith’s patient and untiring handiwork, his terse, clear style and force
of expression … There are few even in the mother country or the United States who could have accomplished
such a piece of draftsmanship with the same finish in the same time”: Deakin, Federal Story, pp 49-50, quoted
by Professor La Nauze, The Making of the Australian Constitution, p 75. Clark’s contribution to the draft has
probably been understated by historians but nor should it be overstated having regard to Deakin’s
observations. Moreover, Professor La Nauze notes that Clark was not able to give in public an impression of
authority of the kind conveyed by “Griffith’s calm self-confidence” (La Nauze at p 76). La Nauze summarises
his conclusion based on the primary sources in this way: “Clark was one of the few delegates technically
capable of composing a draft Constitution, but he could not have steered it through such a body as the
Convention with the efficacy and authority of Griffith. It is to his credit that he was content to play second
fiddle. He could not have played first, but he could have sulked, or criticised. He had, however, long been a
convinced federalist, and as one observer remarked, was concerned to stick to the Bill, even though it did not
always embody his individual opinion (La Nauze at p 76).
14
The Constitutional Decisions of the Founding Fathers, the Hon Murray Gleeson, Inaugural Annual Lecture,
University of Notre Dame School of Law, 27 March 2007, p 16.
15
[emphasis added], Harvard Magazine, November/December 2014, p 3.
16
Australia, House of Representatives, Parliamentary Debates (Hansard), 18 March 1902 at 10965.
17
It is important to remember that the great constitutional struggle resulting in the English Civil War and
Parliament’s victory under Cromwell (and much later the circumstances of the Act of Settlement of 1701) was
concerned not with the separation of powers but with the supremacy of Parliament. For this reason, the
Constitutions of the Australian States did not embody a strict separation of powers: see the observations of
Chief Justice French in South Australia v Totani (2010) 242 CLR 1 at [66] and the observations of Hayne,
Crennan, Kiefel and Bell JJ in Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458 at [125].
5
6
18
See Ch III of the Constitution and in particular s 75(v) and the power to confer upon Federal Courts by s 77 of
the Constitution of jurisdiction in matters falling within s 75 of the Constitution.
19
Here I am talking about the Court’s jurisdiction conferred under the Judiciary Act 1903 (Cth) having regard to
s 77 and s 75(v) of the Constitution rather than any jurisdiction to review administrative decision-making such
as that conferred by the Administrative Decisions (Judicial Review) Act 1977 (Cth).
20
It is important to understand that the term “legality” here means whether the decision-maker has stepped
outside the legal boundaries of what is required of the decision-maker in reaching a decision and whether the
exercise of a discretion vested in the decision-maker has miscarried. This sort of error is called “jurisdictional
error”. In Craig v South Australia (1995) 184 CLR 163 at 179, the High Court observed that if an administrative
decision-maker “falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong
question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make
an erroneous finding or to reach a mistaken conclusion, and the [decision-maker’s] exercise or purported
exercise of power is thereby affected, [the decision-maker] exceeds [his or her] authority or powers. Such an
error of law is jurisdictional error which will invalidate any [decision of the decision-maker] which reflects it”.
21
Not for Profit, Why Democracy needs the Humanities, Martha C Nussbaum, Princeton University Press, 2010
at p 9.
22
A section of an interview of Mr Daniel Barenboim with the BBC broadcast by ABC Television in Australia in
November 2014.
23
Noel Pearson’s 2010 John Button Oration – Nights when I Dream of a Better World: Moving from the
Centre-Left to the Radical Centre of Australian Politics”, 7 September 2010.