DEAKIN
UNIVERSITY SCHOOL OF LAW
1997
DEAKIN LAW SCHOOL PUBLIC ORATION
FRIDAY
22 AUGUST 1997
DEAKIN
- POPULAR SOVEREIGNTY AND THE TRUE FOUNDATION OF THE AUSTRALIAN CONSTITUTION
The
Honourable Justice M D Kirby AC CMG 1
ALFRED
DEAKIN REMEMBERED
A
recent study in the United States revealed that 59% of the public could name
the Three Stooges, however, only 17% could name three Justices of the Supreme
Court of that country 2
. In Australia, the percentage would probably be much smaller, at least on the
latter statistic. It is interesting, as we approach the centenary of the
Australian Constitution, to question how many of our citizens could nominate
three of the Founders of the Constitution. How many would even remember Alfred
Deakin? How many would recall his constructive and progressive contribution to the
birth of our Commonwealth?
It
is appropriate to recall to mind that extraordinary man for whom this
University and this Oration are named. By common consent he is most constructive,
conciliatory and successful of the Founders of the Australian nation.
Born
in 1856 at Collingwood, Melbourne, Deakin's family made their way to Victoria,
like so many of the time, in search of gold 3
. He was an indifferent student, who strayed somewhat reluctantly into the
study of law. His passions were poetry, spiritualism and theosophy. He was
later to add to these two further passions, not inconsistent at the time, for
Australian federation and Empire cooperation 4
.
He
moved through journalism and colonial parliamentary politics to an active
participation in the federal movement which quickly took over from his earlier
political obsession with planned irrigation. His enthusiasm for federation was
propelled by the imperial apathy which he saw at the Colonial Conference in
London in 1887. He was the youngest delegate to the National Australasian
Convention of 1891 in Sydney. He polled third in the popular election of ten
Victorian delegates to the Australasian Federal Convention of 1897-98. He was
one of the small band sent to London in 1900 to "sell" the
Commonwealth Bill after it had been accepted in the Australian referenda
campaigns of 1898-99. The compromise struck with the British Government over
what became s 74 of the Constitution (concerning the effective finality of the
High Court of Australia in inter se constitutional questions)
represented a triumph of his negotiating skills.
Upon
his return to Australia, Deakin effectively determined the choice of Barton as
the first Prime Minister of Australia by declining to serve under Sir William
Lyne. He became the first Federal Attorney-General. His skills of negotiation
then secured the passage of the Judiciary Act 1903 (Cth) setting up the
High Court as envisaged by the Constitution. The proposal, now seemingly
inevitable, had struck much hostility. It was to be described as Deakin's most
"cherished" legislative measure. In a sense, the forty Justices who
have served on the Court, including myself, and those still to come, are heirs
to Deakin's legacy.
When
Barton retired from the Parliament on his appointment to the High Court in
1903, Deakin became Prime Minister. He was to serve, as such, on three
occasions, the last in 1909-1910. He was constantly urging the indifferent
imperial authorities that they should establish a permanent secretariat in
London to give the self-governing dominions, such as Australia, an effective
voice in the Empire's foreign policy, defence and economic cooperation. His
proposals received a cold reception in London. The British were never as
interested in the dominions and colonies as the latter were fascinated by the
hub of the Empire.
Deakin
retired from Parliament in 1913, a spent force. He refused appointment as the
first chairman of the Interstate Commission in 1914. One wonders if a man of
his personality might have breathed life into that failed idea of federalism.
Deakin died in 1919. At his State funeral his coffin was draped, in the manner
of those times, in the Union Jack.
Some
of Deakin's causes have withered - such as his mystical faith in the destiny of
the white British race and in the civilising mission of the British Empire.
Such transient political theories counsel us to ponder upon the passing nature
of political ideals. We should ask: what are the political ideals today that
seem so important and engender so much heat which, in a century's time, will
appear completely irrelevant to Australia's life as a nation?
Yet
the instrument of government which Deakin did so much to secure - the Australian
Constitution - is still with us. It is still the basis of the rule of law in
our nation. It still organises the Australian polity around the four
"great constitutional principles" which are stated in its text and
structure 5
. These four principles are representative government, federalism, the
separation of powers and responsible government under the Crown. To those who
have striven to find a fifth principle, republicanism, in the constitution, it
seems apt to answer in the words of Stephen Gageler 6
:
"The
inclusion of the institution of responsible government created the British
heart in an otherwise American federal body".
MONARCHY
v REPUBLIC
I
have elsewhere tried to point out that the Australian Constitution can be
viewed as reflecting a struggle, which is still ongoing, between British and
United States elements captured in its text. These may be portrayed as the
struggle between the popular, democratic features emphasised in some parts of
the Constitution (the democratic House, the Senate directly elected by the
people and the referendum procedure in s 128) and the stable, unchanging
elements of government reflected elsewhere in the text (the Crown, the civil
service and the judiciary) 7
. Others have discerned in federation itself essentially republican features of
government by which the Crown, formerly unified, was divided into the many
"rights" of the jurisdictions of the Constitution. But these
provisions, and the others inviting a popular role in government are locked in
battle with the centralising tendencies of the Constitution which reflect the
deep-seated monarchical viewpoint of the Founders, including Deakin. The
monarchical idea, formerly centred in a personal sovereign, is still in our
minds and in our constitutional charter 8
. It finds reflections in the Executive elected by and responsible to the
Parliament. A strong federal government. And a High Court which, at least since
the Engineers' case 9
has often tended, by its approach to constitutional interpretation, to favour
the enlargement of federal constitutional powers 10
.
Republican
government tends to be diffuse and subdivided so as to be more immediately
accountable to the people. Monarchical government tends to be strong and
centralised - formerly in the person of the sovereign but now in whoever the
Parliament elects to govern. The rejection of direct election of the Executive
by the people and the insistence upon the system of responsible government in
both the federal and State constitutions in Australia mark the fundamental
departure of our governmental theory from the popular notions which attracted
the revolutionary authors to the United States Constitution and those of the
world which have followed it since.
CONVENTIONS
AND REFERENDUMS
Stimulated
by the proposal for a convention to examine suggestions for the establishment
of a "republic" in Australia, historians have begun to cast backward
glances at the process by which Conventions were formerly established to do
constitutional business for English-speaking people. There have been two
Convention Parliaments in England itself. The first was convened in 1660 to
terminate the republican Commonwealth and to summon King Charles II back to the
English throne. The second occurred in 1688-9 after King James II fled the
Kingdom. Each of these Convention Parliaments was so described because neither
was properly summoned under the Great Seal of the Kingdom affixed by the King's
order 11
. They were regarded, at their time, as temporary expedients. Their laws were
re-enacted by the next Parliament so as to reaffirm their legitimacy. Doing
this emphasised, once again, that the legitimate mode of governance in England
was not government by the people. It was government by their representatives in
a Parliament, summoned by the Crown.
In
the revolutionary situation which arose in the American colonies a century
later, the Royal Governors would not summon the colonial legislatures. Instead,
conventions were called to remake what became the State constitutions and to
provide a model for the convention which ultimately approved the Constitution
of the United States.
This
was the background for the Australian, or more properly Australasian,
Conventions which ultimately sent the Commonwealth Bill to the electors of this
country for their approval. In this, the Australian colonies took a course
different from their Canadian cousins. Although the latter had conferences, the
Canadians had no convention to draw up a constitution for popular acceptance.
In their conferences, they merely agreed on basic principles which were then
sent to Westminster to be put in the form of the British North America Act 12
. In Australia, we took a different course. The story is told by John Hirst
13
describing the way in which the Adelaide Convention was summoned in 1897,
exactly a hundred years ago. The earlier Australasian meetings had been called
"Conventions". But all of them contained only delegates from the
colonial parliaments. Hirst raises the question as to whether those parliaments
had the power to legislate extra-territorially for a national and a
nation-making body and hence to delegate participation in such a body 14
. "Our sombre founding fathers" he remarks, "might in truth have
been law-breakers" 15
.
However
that may be, the big debate a hundred years ago concerned the fracture point
between the role of the people in creating and then governing a Commonwealth
and the role of legislatures, voted for by the people, but safely containing
experts and providing a filter against the risk of popular passions. American
republics might like the direct voice of the people. But British monarchies,
including in Australia, were much more dubious about that idea. They felt safer
with Parliaments, including the Crown, which they were pleased to call
"sovereign". The direct voice of the people, as the perceived
excesses and instabilities of the French and American Revolutions had shown,
might introduce dangerous elements of chaos and populism, with risks to
property interests and, despite the rhetoric, with perils to life, liberty and
the pursuit of happiness.
A
hundred years ago, Australia was edging in this way towards its compromise
Constitution. A sticking point concerned the manner of its amendment. Two
proposals were on offer. The one envisaged the summoning of State conventions -
a safely filtered procedure. The other "rival method of securing the assent
of the sovereign people, the Swiss referendum, was already beginning its
run" 16
. Sir Samuel Griffith, a traditionalist in most things, predictably favoured
the former. Alfred Deakin argued that since, at such a convention, the
delegates would merely be expected to say yes or no to a proposal, the people
were perfectly capable of doing the same. The referendum proposal was defeated at
the 1891 Convention in Sydney. But it gathered support amongst liberals and
radicals, who saw it as a more or less regular instrument of government in the
future Australian Commonwealth. As the movement gathered pace in the 1890s, it
eventually came to affect the way in which the Adelaide Convention itself was
constituted and the way in which the constitutional alteration provision was
finally drawn. Unlike the other Conventions, that held in Adelaide, a hundred
years ago, comprised delegates elected directly by the people. There seems
little doubt that this popular element in their selection gave an impetus and
legitimacy to what they did. It affected their approach to key constitutional
issues (such as the direct election of the members of the Australian Senate).
And it reinforced the ascendancy of the referendum procedure both as the
pre-condition to the adoption of the new Constitution and as the means provided
to secure its subsequent formal amendment.
In
such matters, Deakin sided with the liberals and radicals. But his life as an
Australian nationalist and Empire protagonist encapsulated the tensions which
remain to this day in the Australian Constitution. I refer not only to the
visible link with the departed Empire in the person of the Queen. Much more
fundamentally, I refer to the deep-seated British notions which remain in the
Australian Constitution and which Deakin and most of the Founders undoubtedly
cherished and passionately favoured. The institution of the Crown (as distinct
from the person of the sovereign). The institution of responsible government
(not an Executive directly elected by the people). A permanent and unchanging
public service. And a judiciary appointed by the Executive Government without
the slightest inter-meddling by the Parliament or the people.
A
NEW GRUNDNORM ?
When
the new Australian Constitution came into force few would have questioned the
source of its legal legitimacy. Indeed, this was symbolised quite vividly by
the voyage of Deakin and his colleagues to London as suppliants to the United
Kingdom government to persuade them to have the Commonwealth Bill enacted by
the Imperial Parliament at Westminster. The notion of a wholly autochthonous
constitution, made by the people of Australia at the Convention in Adelaide or
elsewhere, would have seemed to most of the Founders, and to the people of
Australia at that time, to have been bizarre and illegitimate. The chain of
legal validity, that could be traced back (with but rare interruptions) for a
thousand years had to be maintained, unbroken, as the Australian colonies
became the new Commonwealth in the British Empire. To do this, an Imperial Act
was essential. There was no rebellion against British authority 17
. There was continuity.
An
alternative proposition has been advanced by Justice Lionel Murphy. In Kirmani
v Captain Cook Cruises Pty Ltd [No 1] 18
he said:
"On
the inauguration of the Commonwealth on 1 January 1901, British hegemony over
the Australian colonies ended and the Commonwealth of Australia emerged as an
independent sovereign nation in the community of nations. From then, the
British Parliament had no legislative authority over Australia. The authority
for the Australian Constitution then and now is its acceptance by the
Australian people".
Although
this theory has some emotional attractions to Australian nationalists, it
scarcely fits in with the contemporary historical reality which saw the gradual
emergence of a completely independent Australian nation as something that
happened much more slowly. It occurred by the incremental steps that represent
the usual way of legal systems of the common law, derived from England. Indeed,
it should not be forgotten that it was the provenance of the Australian
Constitution as an Imperial Act which encouraged Justice Isaacs and his
supporters in the approach to its interpretation adopted in the Engineers' case
in 1921 and followed ever since. If the United Kingdom Parliament after 1
January 1901, had no legal authority whatsoever to enact any laws in relation
to Australia, as a separate sovereign nation, one might ask: what business was
it of the parliaments of Australia, federal and state, to request and consent
to the enactment of the Australia Acts of 1986 19
? What business was it of the United Kingdom Parliament (except native British
politeness) to respond to such Australian parliamentary requests which, I would
remark, did not directly involve, in the slightest, the request of the people
of Australia themselves? Nevertheless, enact those statutes, the legislatures
of Britain and Australia certainly did. Amongst other things, they ended the
residual appeals to the Privy Council from State Supreme Courts and renounced
further imperial legislative designs on Australian law-making 20
.
At
law schools throughout Australia, well into the 1960s and possibly much later,
it was taught that the historical origins of the Australian Constitution, and
they alone, gave that document its legal authority. The origins emphasised were
the passage of the Commonwealth Bill through the Parliament at Westminster.
Rarely indeed was there reference to the agonising process of the meetings,
conferences, conventions, enactments and referenda of the people conducted in
this country.
The
Constitution has proved highly resistant to formal change. Far more so, I
suspect, than Deakin and his referenda enthusiasts would have expected. It is
as if all that talk about referenda involving the direct participation of the
people, was wasted. In actuality, such "changes" as have been brought
about have occurred in part by political initiatives using the text of the
document in ways that would not have been conceived and, in part, by court
decisions endorsing and upholding such legislation or occasionally finding
rights and guarantees which the legislators themselves neither saw nor wanted.
Of this process, Justice McHugh has said 21
:
"The
meaning that the Constitution has for the present generation is not necessarily
the same meaning that it had for the earlier generations or those who drafted
or enacted the Constitution".
To
the same effect is Justice Gummow's remark 22
:
"[R]epresentative
government is a dynamic rather than a static institution ... [T]he Constitution
continues to speak to the present and allows for development of the institution
of government by changes which may not have been foreseen a century ago".
But
when one looks at the Australian Constitution - even separating it from the
Imperial Act to which, like a legal umbilical cord, it is still attached, some
things are immediately plain. Its history is indelibly written in every line.
It does not begin, as the Constitution of the United States does in its
preamble:
"We
the people of the United States, in Order to form a more perfect union,
establish justice, ensure domestic Tranquillity, provide for the common
Defence, promote the general Welfare and secure the Blessings of Liberty to
ourselves and our Prosperity, do ordain and establish this Constitution
..."
On
the contrary, as I have pointed out, the direct voice of the people was limited
in its origins and has been circumscribed in its history ever since.
Notwithstanding
the difficulty for theory and practicality that these inescapable facts of
history present, it is impossible to ignore the growing movement which suggests
that the ultimate sovereignty reflected in the Australian Constitution, is now
to be taken as reposing in the Australian people themselves. The line of
authority on this point can probably be traced to early hints by the original
Justices, for example in R v Smithers 23
. But the modern impetus began with the then heretical expositions by
Justice Murphy 24
. It gained support from repeated opinions of Justices Deane and Toohey 25
. More cautiously, Chief Justice Mason in the Australian Capital Television case
26
observed:
"The
Australia Act 1986 (UK) marked the end of the legal sovereignty of the
Imperial Parliament and recognised that ultimate sovereignty resided in the
Australian people".
In McGinty
v Western Australia 27
, Justice McHugh acknowledged the difficulties in the way of ready
acceptance of the Australian people as the ultimate foundation of the legal
legitimacy of the Australian Constitution. Yet the conclusion he reached was
that 28
:
"The
political and legal sovereignty of Australia now resides in the people of
Australia".
For
the most part, courts can deal with constitutional questions by focusing their
attention on the text, upon legal elaboration and upon those documents (such as
the Convention debates) which throw light upon the text's meaning. It is rare
that the bedrock foundation of a Constitution is explored or even thought
about. At least it has been rare in Australia until now. However, an indication
of the possibility of things to come may be found in some of the arguments which
were advanced in Levy v State of Victoria 29
. One of the arguments put to support the invalidity of the regulation
forbidding Mr Levy access to places of duck shooting was that any such
regulation was invalid on the ground that the people of Victoria had not
empowered their Parliament to take from them the rights of protest and other
actions, the exercise of which Mr Levy and his supporters asserted.
"
DEEP LYING RIGHTS" OF THE PEOPLE
If
it is accepted that the people of Australia are the source of the legitimacy of
the Australian Constitution, does this mean that the people have reserved to
themselves some rights which even the Constitution and laws made under the
Constitution cannot extinguish?
The
notion that there are some "deep lying rights" which have never been
ceded by the people in the Constitution or otherwise to Parliament or to any of
the other organs of government may find some reflections in the extra-curial
comments of Justice Toohey in his important paper in Darwin: "A Government
of Laws, And Not of Men" 30
.
"[W]here
the people of Australia, in adopting a Constitution, conferred power upon a
Commonwealth Parliament, it is to be presumed that they did not intend that
those grants of power extend to invasion of fundamental common law liberties".
But
this and like remarks 31
may amount to nothing more than an interpretative presumption. There is nothing
unusual in suggesting that a document such as a constitution should be
construed with the assumption in mind that basic common law rights are only
abolished or diminished by language expressed in the clearest of terms 32
.
Yet
across the Tasman in New Zealand, without a written constitution, Justice Cooke
(as Lord Cooke of Thorndon then was) repeatedly propounded the "deep lying
rights" thesis. For him, this went beyond an interpretative principle. He
sought to rest the thesis upon the suggestion that laws made by Parliament are
ultimately binding only because courts say they are. If Parliament purported to
make a law which, for example, took away the rights of New Zealand citizens to
resort to ordinary courts of law for the determination of their rights, such a
law would (he suggested) be of dubious validity 33
. This would be so although it had passed all the formal tests, carried on its
face the Royal Assent and bore all the other apparent hallmarks of an Act of
Parliament.
In Fraser
v State Services Commission 34
, Justice Cooke put it quite vividly:
"This
is perhaps a reminder that it is arguable that some common law rights may go so
deep that even Parliament cannot be accepted by the Court to have destroyed
them".
In
judicial writing I have doubted this thesis, suggesting that our true guarantee
against such an unthinkable law lies in the collective wisdom of our
Parliaments and in their regular accountability to the people 35
. Rather ungraciously perhaps, I repeated my hesitations at a conference convened
to celebrate Lord Cooke's many contributions to the jurisprudence of the common
law world 36
. I suggested that, in this regard, his view was heresy, even dangerous heresy.
He took it all with good grace and patient fortitude.
However,
several developments are occurring which should be noted and which are relevant
to the thesis of "deep lying rights". They include the greater
willingness of constitutional courts to construe the constitutional instrument
and other legislation against a presumption of respect for fundamental human
rights; their greater willingness to invoke the international law of human
rights to lend support to this endeavour 37
, their greater sensitivity to constitutional implications found in the
language and structure of the document 38
and their insistence upon the protection of the integrity of the judicial
process, the independence of the judiciary 39
and the availability of constitutional judicial review 40
.
In
the old days, it was easy to find the Grundnorm for the Australian
Constitution. It lay in the legal authority by which the document was clothed
when the Imperial Act endorsing it passed through the Commons, was approved by
the Lords Spiritual and Temporal and had affixed to it the sign manual of Queen
Victoria. However, as the century has passed since Deakin contributed so
mightily to bringing those events about, such explanations of the legitimacy of
our Constitution no longer command universal acceptance. Increasingly they
seem, like Deakin's dream of a trans-national Empire of white rulers,
inappropriate and out of date.
That
is why we are now looking to ourselves, for the authority of our Constitution
and the reason we accept it as governing everyone in our continental country.
Is it, like many other features of our national life, just apathy that explains
this acceptance? Do we not really care: considering that time should not be
wasted upon such theoretical quandaries? Do we obey the Constitution because
the police and perhaps the army would enforce its provisions against those in
Australia who objected to it? Do we turn away from these debates because we
realise that "the people", who are said to be sovereign, have
"only the slightest inkling of how constitutional democracy
operates". Perhaps it is a constitutionally content people that knows the
three stooges and not three Supreme Court judges.
CONSEQUENCES
OF POPULAR SOVEREIGNTY
The
point of this contribution is to draw attention to our continuing debt to the
Founders, and particularly Deakin, for what they achieved. Their work has
secured for us, the Australian people, a century of stable government resting
on the four foundational principles which they adopted. It is unsurprising
that, a century later, we should be looking afresh at their handiwork. The
world in which it must operate today is so different from the world which gave
it birth.
If
the Australian people are (as is suggested) now the ultimate foundation of the
legitimacy of the Constitution, we must realise that this hypothesis has
possible consequences. They may lie not only in the arguments that will be
advanced about the fundamental "deep lying rights" which the people have
reserved themselves. They will also lie in the work of the courts. If the
people, and not the notional legality traced back to an Imperial statute, are
the ultimate source of constitutional authority in Australia, may it not be the
duty of the courts in their mode of reasoning to be more accessible to the
people? If we are not simply demonstrating to the professionally skilled the
legal authority of our decisions but must also speak to the people from whom
that legal authority ultimately comes, should different modes of reasoning and
explanation be adopted? A different judicial method? A greater attention to
"reconnecting jurisprudence" to ordinary people 41
?
One
United States' scholar has recently made this point in words which deserve our
attention in Australia 42
:
"Judicial
opinions serve as the primary link between the courts and the populous.
Presumably, opinions are written to assure the people that legal judgments are
reasoned, not capricious. As forms of communication, opinions must therefore be
widely intelligible if the judiciary is to maintain popular credibility. For
the United States Supreme Court, this responsibility is paramount.
'Constitutional law is not pronounced principally for the benefit of the legal
profession but for the American people as a whole' 43
. 'The Court maintains its constitutional authority in part by reinforcing the
political principles and political bonds of the country' 44
. Expositions of constitutional meaning ultimately must address the fundamental
commitments of the populous. To do so, they must be easily understood. When
constitutional opinions become unintelligible to the ordinary citizen, one of
our nation's three central supports begins to crumble".
The
United States Supreme Court has recognised this for itself. In a recent
decision it remarked 45
:
"[T]he
Court's concern with legitimacy is not for the sake of the Court, but for the
sake of the Nation to which it is responsible".
We
could content ourselves in Australia by saying that none of this applies to us.
Ours is a constitution without ringing phrases, with no bill of rights. It can
safely be left to judges and lawyers to handle its problems. If, in the United
States, only a small fraction of the populous reads judicial opinions and a
smaller one consults law reviews 46
, the number is smaller still in Australia. This makes the people highly
dependent upon the media for coverage of the courts' work. Perhaps, recognising
this, the High Court of Australia may need to adapt its procedures so that the
people understand better what it does and why it does it. If it fails to do
this, the Court may be exposed, even more than it presently is, to
misunderstanding and even to misrepresentations which are inadequately
answered. The Court should not, in my opinion, lose sight of the truth that
"if society no longer identifies with the law, then its constitutional
democracy is at risk" 47
.
TAKING
THE CENTENARY SERIOUSLY
So
long as the foundation of the Australian Constitution was nothing more than an
imperial statute enacted in 1901 and an ancient chain of legal title going back
a thousand years, and so long as the declaratory theory of the judicial
function reigned, the exposition of the Constitution could be safely left to
technically expert lawyers skilled in construing bills of sale and contested
wills. The point I have been at pains to make is a simple one. To the extent
that we now accept that the ultimate foundation of our Constitution is the will
and consent of the people of Australia, and not its imperial statutory
provenance, we must adapt our thinking. If the people are the foundation, are
there people's rights, even when not expressed, implied in the text and
structure of the Constitution which the courts must uphold? Are there people's
rights which the people, through their representatives, may declare in a
Charter of Rights enforceable in the courts? Are there people's rights which
the people have never surrendered to Parliament but jealously reserve to
themselves? If the people are the ultimate source of all legal authority, and
not a disembodied notion of Law, does that not have consequences for the way
courts reason? And for the way they explain their reasons to the people of
Australia who are, on this hypothesis, the source of all legal and governmental
power - including that of the courts themselves?
In
1997, as we approach the centenary of the Constitution, we need more people
who, like Deakin, can see the way ahead apt for our time. We cannot naively
assert that the "Australian people are sovereign" without considering
the consequences of this assertion for a Constitution which, in many ways, was
framed upon quite a different hypothesis. Political phrases acclaiming popular
sovereignty come cheap. But a deeper reflection on our constitutional
governance is what we should be attempting as the centenary of the federation
draws nigh. This is, or should be, a serious and constructive reflective event
in the life of a people and a nation. In my humble view, it is infinitely more
important than the Olympic Games which, however ennobling of the human spirit,
is transient and concerns the whole world - not our peculiar constitutional
destiny. We need Australians to look ahead, as Deakin did - peering into the
century yet to come. Reflecting upon our many constitutional blessings.
Considering with gratitude our debt to those, like Deakin, who helped to
install such a successful instrument of government. But alert, as Deakin was,
to the times we live in and to the need to reconsider the document and to
change it where change is necessary.
And
if the people are truly sovereign in this land, we will seek to engage all of
the people in the celebration of the centenary of our nationhood. Otherwise the
bread and circuses of the Olympics will overshadow a truly great Australian
achievement - the century of federation. We will slide back to the view that
government is really a matter for the experts. That the law is truly a
disembodied science for lawyers and others in the elite. This would be a
disappointing outcome. It would consign the so-called sovereignty of the
Australian people to a mere fiction and a thing of legal theory. If Deakin were
here I feel sure that he would attempt to breathe new life into the reality. It
was he who did more than anyone to bring about the Federation. It was he who
stated that "its actual accomplishment must always appear to have been
secured by a series of miracles" 48
. But are we up to miracles today?
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