The Centenary of Sir Harry Gibbs: Constitutional Methodology, Lawmaking & the Marriage Plebiscite

By Kirby, Michael D. | University of Queensland Law Journal, December 2016 | Go to article overview

The Centenary of Sir Harry Gibbs: Constitutional Methodology, Lawmaking & the Marriage Plebiscite


Kirby, Michael D., University of Queensland Law Journal


1 INTRODUCTION

On 7 November 2016 the Australian Senate, by 33 votes to 29, defeated a motion that the Plebiscite (Same-Sex Marriage) Bill 2016 (Cth) be given a second reading. Prime Minister Malcolm Turnbull declared that the Government had no intention to take other measures on the issue. In this article, delivered as an address to mark the centenary of the birth in 1917 of the Right Honourable Sir Harry Gibbs (Chief Justice of the High Court of Australia 1981-87 and Justice 1970-81) the author outlines the career of Gibbs CJ, including various personal interactions. He suggests some of the chief legal values that Sir Harry Gibbs revealed during his service. He states that these included a deep commitment to proceeding properly in matters involving 'constitutional issues'. He then analyses some of the problems perceived in the Government's proposed plebiscite on same-sex marriage. On the basis of Sir Harry Gibbs's commitment to proper procedures in constitutional matters, illustrated by his methodology and decisions in the Territorial Senators Cases (1975 and 1978) and elsewhere, the author suggests that he would have resisted the constitutionally unnecessary conduct of a plebiscite. It was not required following the decision of the High Court in 2013 upholding federal legislative power in the matter. He raises the question whether, given such clear legislative power, a plebiscite would fall within any of the incidental powers belonging to the Parliament or be inconsistent with representative democracy. Defeat in the Senate has obviated consideration of such questions. However the matter illustrates again that the way constitutional issues are approached will sometimes be as important as the substance of the issues involved. Just as Sir Harry Gibbs taught.

II COMMON LAW VALUES AND PROCEDURES

Sir Harry Gibbs was an alumnus of the University of Queensland. His was a life of duty and service. After 11 years as a Justice of the High Court of Australia (197081), he was elevated in 1981 to be the eighth person and second Queenslander to serve as Chief Justice of Australia (1981-87). (1) He brought to the office erudition in the law, much experience as a barrister and judge, and a sharpness of mind and gifts of clear expression (2) that ensure that his opinions are still read to enlighten contemporary Australians on the law, especially constitutional law.

Gibbs knew the criticism often voiced about legal systems of the common law, namely that they are so concerned about procedural fairness that they sometimes gave insufficient attention to the substance of the law which they insist should be administered fairly, with natural justice and due process. He also knew the answer that the common law typically gives to those who criticise it on this ground. This is that, if legal steps are taken with care for procedural justice, it is much more likely that substantive justice will emerge.

Gibbs had a well-developed sense of fairness and justice. (3) His judicial reasons reflect an old fashioned concern to demonstrate to the losing party that relevant arguments have been considered. On several issues he and I had different viewpoints. Because of our respective life experiences, he was probably less exercised by the law's burdens on minorities. Nevertheless, I am proud to say that we enjoyed what was ultimately a firm friendship, based on a number of shared values. Our views on at least one cause (whether Australia should become a republic) was deeply affected, for each of us, by what we saw as the constitutionally illegitimate way in which the issue had been promoted before the Australian people by its principal protagonists. At the time, those protagonists were chiefly the Hon Paul Keating MP, Prime Minister of Australia, and a young, gifted lawyer Malcolm Turnbull, Chairman of the Republic Advisory Committee, later himself to rise to the office of Prime Minister.

In this memorial lecture, I seek to demonstrate the well-springs from which Gibbs derived his deep commitment to proceeding fairly in all things, but particularly in matters that could be described, in a general sense, as constitutional. …

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