Nineteen eighty three: A jurisographic report on Commonwealth v Tasmania

Abstract

The question we ask in this essay is quite direct: did the Tasmanian Dams case change the conduct of jurisprudence in Australia? To reflect on that question, we stand to the side of the review of the events of 1983 as constitutional decision, and present the jurisprudence of Dams and 1983 in terms of the incidents of legal thinking in the conduct of the office of the jurisprudent. Writing as jurisographers, we reflect historically on the conduct of office of the jurist and jurisprudent, and the writing of jurisprudence. Our account here provides a brief chronicle and record of the patchwork of law projects and engagements that pattern the events of Dams into the scholarly work of jurists in Australian universities.

Notes

¹ Commonwealth v Tasmania (1983) 158 CLR 1(hereafter ‘Dams’).

² Hadot (1995) pp 264–274; Hadot (2002) pp 253–270.

³ Hadot (2001) pp 22–34.

⁴ Weber (2004).

⁵ Genovese (2013), pp 41–44; Genovese (2014a); Genovese (2014b); McVeigh (2014); Dorsett and McVeigh (2014).

⁶ See n 86.

⁷ Dams (1983) 158 CLR 1 at 30 (Gibbs CJ).

⁸ Coper (1983), pp 1–26.

⁹ Macintyre (2010); Foster and Varghese (1996).

¹⁰ Note the edition is dated as (1983–84) as it was published at the end of year: (1983–84), 14 Federal Law Review 198–257 [hereafter ‘FLR (1983’)]

¹¹ ‘A-G’s Department Head Speaks on “the Dam Case and all that”,’ Australian Law News, July 1985, pp 22–23.

¹² Davis (1993).

¹³ Ernest Braybrooke had recently retired from La Trobe Law School, and had a temporary appointment at the Law School, University of Tasmania as a Visiting Professor (see Douglas (1989)).

¹⁴ Sornarajah (1983a).

¹⁵ For example: Geoffrey Sawer (1910–96), was educated at Melbourne University, and Tony Blackshield at the University of Sydney, and Kate Warner at the University of Tasmania. Dennis Rose (1936–2008) was educated at Tasmania and at Oxford; Michael Crommelin at the University of Queensland and the University of British Columbia; Muthucumaraswamy Sornarajagh at the Universities of Ceylon, Yale, and London; Ernest Braybrooke at the Universities of Western Australia, New Zealand, and at Columbia; and Brian Galligan (the only non-lawyer represented in the collection, but a specialist in the politics of the High Court) studied economics and commerce at the University of Queensland, then took a PhD in political science at the University of Toronto. Note that qualifications extracted from published articles in Sornarajah (1983a) and FLR (1983).

¹⁶ For an overview of the influences on the generation of legal scholars working in the 1940s–60s in Australia, see Bartie (2010).

¹⁷ We use the term in a general sense. The term ‘legist’ more properly relates to mediaeval lawyers who act as advisors to Feudal princes and monarchs. The term also referred to university researchers in law; see Kelley (1970), p 195 ff. For a modern usage see, for example, Goodrich (2004).

¹⁸ See Goldsworthy (2006).

¹⁹ Shkalr (1964).

²⁰ ‘Preface’ to the articles by Sawer, Lindell, Saunders, and Zines, FLR (1983) prefacing p 199.

²¹ For example, Rose (1983b), p 218; Rose (1983a), p 256.

²² These are considerations in: Sawer (1983); Crommelin (1983); Lindell (1983) 219. Lindell and Rose (1983a) both consider s 51 (xx) and s51 (xxvi) as doctrinal questions to be read in tandem as persons powers, and in terms of implied limitations. Rose concludes his discussion for example by arguing that if limitations were to be read on the corporations power after Dams ‘consistency would require the same conclusion on s 51 xxvi) so far as it concerns laws controlling…the conduct of people of any race’: Rose (1983a), 257.

²³ For overview and examples of Sawer’s work and influence: Sawer (1968); Cranston (1980).

²⁴ Sawer (1983), p 199. Note to the emphasis he placed on dicta as telling a different kind of story of the power of judgments for future executive and legislative action: he did not limit himself only to the judgment, as to do so was ‘such an old fashioned point of view’: Sawer (1983), p 205.

²⁵ Note also the following contributions: Bates (1983), pp 1–22; Warner (1983), pp 132–144; and, Rutherford (1983), pp 145–151.

²⁶ Sornarajah (1983b), pp 23–36.

²⁷ Sornarajah (1983b), p 24 also notes how the ‘founding fathers’ when drafting Commonwealth of Australia Bill (1900) used the same allegorical gesture, which he takes up and adapts for 1983: ‘[T]heir hopes for Australia in the field of international relations were grandiose. They wanted to clothe the Federation with enough power so that it could merge as a power on the world stage’. Sornarajah uses ‘she’ and ‘her’ throughout the essay to describe Australia.

²⁸ Sornarajah (1983b), p 32.

²⁹ Castle and Pringle (1993), p 138.

³⁰ One concern, although not one found in the law journals of 1983, might be how a jurist might respond to such a gendered and sexualised gesture, of the men of law needing to clothe the female state. In some ways, this observation relates to our point at footnotes 59 and 60 that feminist jurisprudence in 1983 at least was occurring in a different institutional or public space.

³¹ Goodrich (2008); Dorsett and McVeigh (2012), p 78.

³² Sornarajah (1983b), p 34.

³³ Sornarajah (1983b), p 34: ‘particularly in the Asian region’.

³⁴ Braybrooke (1983).

³⁵ Douglas (1989); Braybrooke (1973).

³⁶ Strickland v Killen (Full Court, Supreme Court of Tasmania, unreported, 12 April 1983); Braybrooke (1983), p 126.

³⁷ Docker (1974).

³⁸ There were of course many more articles that appeared in subsequent years, when perhaps the implications of the decision could be more fully analysed, and assessed, and after Environmental Law established itself as a discipline. See for example: Tighe (1987); Bandler (1987).

³⁹ Derham (1984); Connolly (1983); Hawke and Evans (1983). It is interesting that in 1983, Shearer (1983) makes no mention of Dams at all.

⁴⁰ See for historical review: Appleby et al. (2013); and Bartie (2010).

⁴¹ There are many reflections on the content and influence of Stone’s teaching, for example Irving et al (2010); and as a particular Sydney story of law, see for example Kirby (2012).

⁴² Basten et al (1983), p 170. CLCs were a direct consequence of the commitment by the Whitlam Government from 1972 to establish services for those traditionally ‘without power’ in the Australian community. This included establishing state funded inquiries into poverty, and the initiation of a Legal Aid Scheme.

⁴³ Goldring (1985); Basten et al (1983), p 166.

⁴⁴ Street (1975), p 2. For a prominent example, Enderby (1975) (Enderby was then Attorney-General, and responsible for the passage of the legislation).

⁴⁵ Stone (1950), pp 386–389.

⁴⁶ Tomasic (1982); Ross (1982b).

⁴⁷ Tomasic (1982), p 331. He is noting similarities between Australia and the United States, and is in part quoting Schlegel (1979), p 459.

⁴⁸ Ross (1982a), p 344.

⁴⁹ We note as a matter of accuracy the cross overs of individual personnel between these law schools. Our essay is not offered as a biography per se, nor is it an historical critique or narrative, but a report on the conduct of jurists in institutions, and the framing of shared institutional commitments. For a history, and critical engagement, with the enterprise and intellectual contribution of socio-legal studies in Australia, and in particular at Legal Studies at La Trobe University in the 1980s, see Tomlins (2013).

⁵⁰ ‘Editorial Comment’ (1982), p 3.

⁵¹ ‘Editorial Comment’ (1982), p 3.

⁵² ‘Editorial Comment’ (1982), p 4.

⁵³ ‘Editorial Comment’ (1982), p 3.

⁵⁴ ‘Editorial Comment’ (1982), p 3.

⁵⁵ ‘Editorial Comment’ (1982) p 4.

⁵⁶ ‘Editorial Comment’ (1982) p 4.

⁵⁷ ‘Editorial Comment’ (1982) p 5.

⁵⁸ ‘Editorial’ (1983).

⁵⁹ For example, Hunt (1984). Note too that international scholars were publishing in the Australian Journal of Law and Society (hereafter AJLS): Fitzpatrick (1983).

⁶⁰ For an example of the broader field in 1983, see Unger (1983); Critical Legal Studies Symposium (1984).

⁶¹ See for example, Chanock (1983); Bennett (1984); Hirst (1984). See in general Tomlins (2013) for the influences on the Australian Journals, and the nature and theoretical articulation of the scholarship published in this period.

⁶² Bennett (1984) is one early exception in Law in Context. Margaret Thornton’s early work appeared in either more traditional journals (a critical feminist activity), such as Thornton (1984), or in the ‘new’ journals as general critical scholarship by a feminist: Thornton (1985). Thornton’s first major piece of feminist jurisprudence to appear in AJLS, in 1986, was also the first in that journal: Thornton (1986).

⁶³ For an overview of the forms and forums of feminist praxis and jurisprudence that were running in parallel in this period, including the other forums where Thornton’s work appeared, see Genovese (2010).

⁶⁴ Blackshield (1983).

⁶⁵ Fargnoli and Gillespie (1996), p 78.

⁶⁶ Blackshield (1983), p 79.

⁶⁷ Blackshield (1983), p 80.

⁶⁸ Blackshield (1983), p 38. Vico (1984); Bayer and Verene (2009).

⁶⁹ Blackshield (1983), p 80; Dombrovskis (1983).

⁷⁰ Blackshield (1983), p 80.

⁷¹ Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 236–243.

⁷² Dams (1983) 158 CLR 1 at 161–183 (Murphy J).

⁷³ See, for example, the considerations of Murphy’s jurisprudence by scholars, politicians and jurists such as Michael Kirby, Mary Gaudron, Neville Wran, and Tony Blackshield in Scutt (1987).

⁷⁴ Murphy (1982), p 7.

⁷⁵ Murphy (1982), p 8. Fanon (1970).

⁷⁶ Murphy (1982), p 8.

⁷⁷ Murphy (1982), p 8. The AJLS, in Murphy’s view, was part of that project, ‘as there is a real need for a strong and sustained analysis of Australian laws and strong and sustained analysis of Australian law in the context of both Australian and international society’: Murphy (1982), p 9.

⁷⁸ Murphy (1982), p 6.

⁷⁹ Murphy (1982), p 7.

⁸⁰ Although English law formed a tradition, and a ‘rich source of principles which may be applicable to our legal problems’, the question ‘should not be whether we should depart from a particular English decision. It should be whether we adopt this English decision’ [original emphasis]: Murphy (1982), p 8.

⁸¹ Terry (1983), p 2.

⁸² Terry (1983), p 2.

⁸³ Terry (1983), p 2.

⁸⁴ ‘News’ (1982), p 6.

⁸⁵ For one contemporaneous example of dispute, see Kamenka (1983), and the reply by Hunt (1984). For a sustained critique experience and rivalries of schools of jurisprudence, and their relationship to administration of law schools and universities spanning this period, see Thornton (2011).

⁸⁶ There are many other accounts (contemporaneous, historical and reflective) that expressly describe the events of 1983 as political contest in the South West of Tasmania and political contest about the Franklin Dams in mainland Australia, and internationally. These are written by activists, journalists, film makers and novelists, and often in collaboration with photographers, including Peter Dombrovskis. These accounts also carry stories of how people lived with law in 1983. They are sources for an alternative jurisorgaphic account of 1983 (that one of us is currently writing); a companion to the report offered here on the conduct of the university jurists. See for example: Connolly (1981); McQueen (1983); Mosely and Messer (1984); Flanagan (1985); and, Hungerford (2013).

⁸⁷ We use the term loosely here to note that contemporary law and humanities and cultural studies scholarship joins a tradition. See for example Osler (1997); Leiboff (2012); McVeigh (2013a).

⁸⁸ See Christine Black’s elaboration of a modern Indigenous jurisprudence in Black (2010). In addition to its own accounts of Indigenous jurisprudence, this work comments on the Senior Law Men such as Neidjie (1989); Mowaljarli (1992); Marika and Isaacs (1995). See also Benterrak et al (1984).