Table Of ContentAUSTRALIA’S
CONSTITUTIONAL
GOVERNMENT
Professor Jack Richardson AO
(1920–2011)
Edited by Matthew Stubbs
LexisNexis Butterworths
Australia
2016
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National Library of Australia Cataloguing-in-Publication entry
Author: Richardson, J. E. (Jack Edwin), 1920–2011.
Title: Australia’s constitutional government.
9780409341126 (pbk).
ISBN:
9780409341133 (ebk).
Notes: Includes index.
Constitutional history — Australia.
Constitutional law — Australia.
Subjects:
Australia — Constitutional history. Australia
— Politics and government.
Other
Stubbs, Matthew, editor.
Authors/Contributors:
Dewey Number: 342.94029
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Foreword
It is a singular privilege for me to be asked to make introductory remarks about
this new literary work.
The Work
The author, Jack Richardson, was a good friend. Shortly before his death we
were celebrating his 90th birthday. He told me that he had been working on a
book on constitutional law soon to be published. His death intervened.
Knowing the spectrum of his life I expected it would be very special.
Having now received a copy edited by Matthew Stubbs and reviewed it I find
it a seminal work about Australia’s constitutional development.
It will surely find its way as a resource onto the shelves of practising and
academic constitutional lawyers. It should also be a required and welcome
resource for students studying law.
Indeed all practising lawyers should welcome it. Our Constitution is
fundamental to the Rule of Law and every practising lawyer should have access
to a work which provides not only a broad overview of our constitutional
development but also an in-depth and highly reliable analysis of the
parliamentary, executive and judicial powers and the mechanics of government
designed to underpin and make our democracy work. I believe this work will
admirably fill that space.
It was the author’s objective, I am sure, to address his subject in as simple
English as it would allow. I think he had in mind, in doing so, that his work
could be read and understood by ordinary Australians and others who were not
lawyers who wanted a clear, reliable and if needed detailed account of our
Constitution, its development and place in our progress as a nation. I think he
has succeeded in this objective.
The Author
The quality of such a work will always depend on the degree of excellence the
author brings to it. Jack’s life and work as legal adviser to government, law
professor and dean, writer, barrister, and our first Ombudsman, quite apart from
the strength of his personality and the breadth of his active life, were of such
high quality that it ensured it would be expressed in this, his final literary work.
I first met Jack shortly after I became Commonwealth Solicitor-General in
1969. I chaired a Committee set up by Attorney-General Nigel Bowen to review
the Judiciary Act. Jack and Professor Leslie Zines were already members. I was
confronted by two of the most brilliant minds in constitutional law in the
country! Jack’s intelligence, considerable powers of communication and
attractive personality impressed me. The committee’s work took several years.
Legislative amendments met its objectives.
In the early 1970s Jack retired as dean of the Faculty of Law at the Australian
National University (ANU). He had accepted, in 1960, the position of Professor
of Public Law at the then newly established Faculty of Law. It was a daunting
task. The faculty had only 78 mostly part-time students, five full-time staff and a
small library. Some would have thought the enterprise was fruitless. However,
by dint of his academic excellence which ensured the quality of its teaching, his
considerable administrative skills and the sheer strength of his persuasive
personality he was able to leave the faculty with a new building, a large library,
500 students with a high academic level of entry and its own journal, the Federal
Law Review. He laid the foundation for what is clearly one of the leading law
faculties in Australia.
A survey of Jack’s professional life will show that it was marked by
spontaneity, diversity and enterprise. Others recognised these attributes, along
with the required intellectual capacity and administrative skills, when they
engaged him.
In his early years he had a flair for the avant garde. Professor Zines said that
he first met him in 1954 in the Attorney-General’s Department: ‘He was a wiry,
energetic and dashing man in his mid-thirties who drove an MG car and wore a
beret in the French manner.’ He was one of the most highly regarded lawyers in
the department.
When I came to know him in 1970 much of that flair was still there. He was
extrovert, optimistic and driven by seemingly boundless energy in achieving his
goals or the task in front of him. He had in abundance practical common sense
and tact. He was a highly competitive first grade tennis player. In later years he
became closely involved in running a horse stud with his wife, Grace. He
remained a visiting fellow at the ANU Law Faculty, as Professor Zines reported
it, ‘taking part in seminars and conferences, writing articles and chapters on
various aspects of public law. His advice was often sought by members of the
legal profession’.
His professional life in the 1950s demonstrates the diversity and versatility of
his legal expertise:
• He studied air and space law at McGill University in Canada and became
a leader in Australia in this increasingly important aspect of law. From
1952 to 1957 he was a member of the Legal Committee of the
International Civil Aviation Organization. The expertise he introduced
in this area led him to introduce at the ANU the first course in air law in
Australia.
• He was appointed Legal Secretary to the 1956–59 Joint Parliamentary
Committee on Constitutional Review. He wrote the report embodying
its recommendations. On political grounds these turned out to be
controversial and few were implemented. Nevertheless, his appointment
recognised the regard in which he was held as a constitutional lawyer.
• In 1960 Attorney-General Sir Garfield Barwick chose him as chief
assistant and adviser in preparing legislation to prevent restrictive trade
practices and monopolistic behaviour. They travelled abroad to observe
what had happened in that respect in other countries. Barwick thought
highly of him. In his biography, A Radical Tory, he wrote of him:
To do the footwork I took with me Mr Richardson an officer of my Department who was later to
have a distinguished career as Professor of Law. … He was a very competent and well-furnished
lawyer and keen to work with me. I found him careful in the collection of material and level headed
in his judgments. [p 146]
And,
I was able to discuss all this legislation and the manner of its operation with Richardson. In the end
we devised a scheme of our own … [p 147]
Knowing Barwick well, as I did, this was no small compliment.
Late in 1973 I resigned as Solicitor-General, returning to private practice. I
had two rooms in my chambers but only needed one. I was aware that in other
countries it was common for leading academic lawyers to practise in their courts.
I offered Jack the spare room. He took it and practised at the New South Wales
Bar for two years, including appearing for the Commonwealth in the landmark
Seas and Submerged Lands case.
In 1976 the Fraser Government established the office of Ombudsman under
the Ombudsman Act 1976 (Cth) and under the Prime Minister’s authority. I
was Attorney-General at the time and took a keen interest in the first
appointment. I thought Richardson had all the qualities needed. I rang him and
asked whether, if offered, he would accept. He said yes. It was to change his life.
There was a tussle in cabinet. The Prime Minister also had a nominee! Jack was
accepted and he occupied the office until 1985.
The office of Ombudsman was strongly resisted by the upper echelons of the
Commonwealth Public Service. John Wood, a Deputy Ombudsman, thought
Jack was ideally suited to take on ‘the hitherto secretive mandarins’ who headed
the major departments. By sheer force of personality, knowledge, intellect and
administrative skill Jack steadily won the battle. By his retirement in 1985 he
had established the office as one of the great pillars of administrative reform in
Australia — a magnificent achievement.
The Constitution and the Nation
Our Constitution actually originated in British Imperial legislation but in reality
it was a blueprint for our nation. The Statute of Westminster 1931 and the
implementation of the Balfour Declaration ensured our emergence. Debate
surrounds the exact moment when Australia stood as a fully fledged nation. It
certainly happened no later than Prime Minister Curtin recalling the 2nd AIF
and declaring war on the Japanese and our militia fighting the battle of the
Kokoda Trail. With the passage of the Australia Act 1986 (Cth) all possible legal
shackles remaining fell off.
In reality the Constitution governs and directs our daily lives under the Rule
of Law. This is because our lives are lived in community. As a nation we are
really unique. A new race of people is evolving on an island continent. It began
over 40,000 years ago with the arrival of our Indigenous people. We live and
breathe in a free democratic and liberal society — all because our Constitution is
a living instrument for change.
We need to appreciate it much more than we do. Our young people should
be educated with a much deeper knowledge of it. There is much mystery, fear
and ignorance which obscures our appreciation of the Australian Constitution.
We as a people are entitled to mould our future under its terms and this needs to
be done by our people, not by so-called experts in conclave. We need to really
own it.
Jack Richardson’s work provides a platform of knowledge on which we can
build an understanding and appreciation of our Constitution. This fine book is
a resource for informed teachers in our schools and for ourselves at home to
deepen that knowledge. It will enlighten the dynamic of our times — we are a
new people evolving with a charter for freedom in our world and nurturing its
oldest continent.
Bob Ellicott QC
Former Solicitor-General and Attorney-General
of the Commonwealth of Australia
2 August 2016
