Appreciating Culture 2008 by ST Spyridon College

Greek

Orthodox

Archdiocese

ST SPYRIDON COLLEGE

3rd THE APPRECIATING CULTURE LECTURE ON THE OCCASION OF THE COLLEGE SILVER JUBILEE 4th September 2008

Federation and Culture-reflections on the Australian Constitution The Hon. John Hatzistergos BEc LLM MLC Attorney General of New South Wales and Minister for Justice and Industrial Relations

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CONTENTS

PROGRAMME INTRODUCTION TO THE LECTURES Mrs E. Stefanou-Haag, Head of College

INTRODUCTION TO THE SPEAKER Mrs M. Hamer, Principal St Spyridon College Junior School

LECTURE “Federation and Culture —Reflections on the Australian Constitution” The Hon. John Hatzistergos, NSW Attorney General and Minister of Education and Training.

VOTE OF THANKS Very Rev. Father Steven Scoutas

APPENDIX 1 Invitation

APPENDIX 2 Acknowledgements

APPENDIX 3 Guest List

APPENDIX 4 Photo Gallery

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APPRECIATING CULTURE LECTURE 2008 The Honourable John Hatzistergos Attorney General of New South Wales and Minister for Justice Technology Wing Senior School Campus 4th September 2008 MC—Mrs A. Katsogiannis, Principal St. Spyridon College Senior School 7.00pm

Registration

7.30pm

Introduction to the Lectures - Mrs. E. Stefanou-Haag, Head of College

7.35pm

Introduction to Speaker - Mrs. M. Hamer, Principal of Junior School

7.40pm

Lecture: The Hon. John Hatzistergos – “Federation and Culture – Reflections on the Australian Constitution”.

8.15pm

Vote of Thanks – Very Rev. Father Steven Scoutas

8.25pm

Presentation of Gift to Speaker- Mrs. Deanne Coucouvinis, Chairman Board of Governors

Cocktails and Canapes served by Parents and Friends and Year 11 Hospitality students.

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AN INTRODUCTION TO THE LECTURES

Reverend Fathers, Father Steven Scoutas, members of the Board and Parish, members of the judiciary, distinguished guests all, ladies and gentlemen.

first Christian Millennium. He defined for us the five essential values on which true culture is predicated-as freedom, health, property education and interpersonal relations.

The Appreciating Culture Lecture event was established in 2003, to celebrate the 21st Anniversary of St Spyridon College. Tonight’s Lecture is a key event in the Silver Jubilee celebrations of our College, and the Golden Jubilee of our Parish.

We note that first and most important is the value of freedom. And yet as he emphasized each of these values would be as nothing if they are not pursued with the personal and moral conviction of the sacredness and uniqueness that defines each human person. So too in our College we endeavour to educate our students to respect every human person, always working towards justice, truth and beauty.

We are tremendously honored by the presence of so great a number illustrious persons here tonight and so many members of the judiciary. One of the aims of the Appreciating Culture Lectures is to signal the fact that St Spyridon College has come of age – and that it has the capacity and the sophistication to hold high powered events that attract speakers and audiences of the highest intellectual calibre. Together with the vitality and dynamism of a young school, St Spyridon College honors its 4000 years of heritage. It deliberately and systematically builds on two great traditions. Like our Ancient Greek ancestors we at St Spyridon College want to instill in our students a true love of learning, the desire to know, to search for empirical truths and to be introduced to the basic mysteries of the universe. Schools must not become glorified grocery stores-where students and their parents simply buy careers and contacts. They should be much more than this. The first “Appreciating Culture” lecture in 2003 was given by Professor Gavin Brown, the then Vice-Chancellor and Principal of Sydney University. He put to us “The Case for Universities in a Civilized Society”. In it, he proposed that Universities should remain places of Light, Liberty and Learning helping to create culture; and to resist the temptation of merely selling career credentials. So too, we at St Spyridon College have the ambition to go beyond the transactional view of education.

If the first and most important value of true culture is freedom, then as citizens of a democratic nation, it is critical for us to know how the Australian constitution protects the rights and the dignity of each human person. It is therefore a great privilege for us that the Attorney General and Minister for Justice in this State Mr. John Hadjistergos, to speak to us on the Australian Constitution. We have combined the Lectures with the Art Exhibitions so that our new friends can see a snapshot of the school’s educational programs in an area that requires both creativity and imagination. It is a special joy for us that for the first time this year, we have on display works from our sister schools in Sydney-All Saints Grammar School and St Euphemia College, together with St George College Adelaide. We commend the students, teachers and Principals across the four schools on the high standard of the works on show. We congratulate the curator of this year’s exhibition Mrs. Jennifer Michalski, Dean of Upper School on an outstanding event. I invite Mrs. Mary Hamer Principal of the St Spyridon College Junior School to give us an introduction to tonight’s Speaker. Mrs E. Stefanou-Haag Head of College

The second Lecture was given in 2005, by His Eminence Archbishop Stylianos, Primate of the Greek Orthodox Church in Australia, who spoke to us on “Priorities in True Culture”. This Lecture was seminal in that it took us on a journey from Classical thought to the Greek Orthodox tradition, which remains in ceaseless continuation with the

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GUEST LIST

AN INTRODUCTION TO THE SPEAKER

This evening’s lecture will be given by the Honourable John Hatzistergos MLC NSW Attorney General and Minister for Justice and Acting Minister of Education and Training.

Mr Hatzistergos was born in the inner city of Redfern to parents who migrated from Greece in the 1950’s. Although unskilled, like most migrants of the time, they placed a huge value on education as a pathway for a better life for their children.

Mr Hatzistergos attended the inner city schools of Bourke Street Primary and Cleveland Boys High School, schools which have produced many inner city Labor Leaders, a former Chief Justice and many famous sportsmen.

On matriculation Mr Hatzistergos attended Sydney University where he pursued his studies in Economics and Law, receiving a Bachelor of Economics in 1982, Bachelor of Laws 1983 and Master of Laws in 1994.

He worked as a solicitor in private practice from 1983 – 1987 and then as Senior Legal Officer with the Commonwealth DPP from 1987 to 1989 and has been a barrister since 1989.

Mr Hatzistergos joined the Redfern East Branch of the Australian Labor Party at the age of 16 and it was through this involvement that his interest in politics was stimulated. He became secretary of the Campsie Branch in 1983, member of the Earlwood Branch in 1991 and Secretary of Belmore Branch from 1993 to 2000.

Mr Hatzistergos has also been actively involved as the patron of Canterbury District Police and Citizens Youth Club from 1998 to the present and is a member of Canterbury Leagues Club and the Sydney Cricket Ground Trust. His involvement with Canterbury City Council saw him hold the position of Deputy Mayor in 1998.

Mr Hatzistergos was elected to the Upper House in 1999 and has held several portfolios since, including Minister for Health, Minister Assisting the Minister for Commerce, Minister for Fair Trading; Minister for Justice and Minister Assisting the Premier on Citizenship.

Mr Hatzistergos is married to Maria and has three children.

Mr Hatzistergos became the Attorney General and Minister for Justice in 2007.

The Attorney General is the First Law Officer of the State. In this position, he is the most senior member of the Bar and acts for or represents the Crown in litigation.

The Attorney General is the principal adviser to the Government and Cabinet on legal, constitutional and legal policy issues. In relation to legal policy issues, the Attorney General has an obligation to ensure efficiency in the administration of justice, consistency in the level and nature of penalties under the law, observation of the rules of natural justice, and the preservation of civil liberties.

The Attorney General also has responsibility for the appointment of judges, magistrates and statutory officers.

On the occasion of the College’s Silver Jubilee we are honoured to have the Hon John Hatzistergos as our guest speaker.

Tonight he will speak to us on the topic “Federation and Culture – Reflections on the Australian Constitution”

Mrs M. Hamer Principal of Junior School

Ms Helene Abouyanni

Mrs Sia Jakas

Ms Stephanie Pattey

Dr Miranda Adamou

Rev. Father Andrew Joannou

Ms Zoe Pattey

Mrs Georgina Anastasopoulos

Mr Frank Kaldis

Ms Elly Paxinos

Dr M. Anthony

Mr Dimitrios Kametopoulos

Mrs Nancy Paya

Prof. Manuel Aroney

Mr A. Kanaris

Father Miadrag Peric

Mrs Aphrodite Arvanitis

Mrs H. Kanaris

Miss Anastacia Peric

Mr Michalis Athanasiou

Mrs Amelia Katsogiannis

Mr James Phillips

Mrs Veronica Athanasiou

Mr Arthur Katsogiannis

Mrs Doxoula Phillips

Mrs Sophie Balayannis

Hon Justice Tricia Kavanagh

Mrs M. Pringle

Mrs Barbara Bassil

Mr Peter Keeble

Councillor John Procopiadis

Mrs Vesna Belajcic

Mrs Estelle Kerameas

Mr John Ralston

Miss Tina Bletsogiannis

Miss Alexandra Kollias

Mrs Angela Roditis

Mrs Andrea Borean

Mr Arthur Kollias

Miss Eleni Rogaris

Mrs Arianne Boulas

Mr Hristos Kollias

Director Nicholas Sakaris

Mrs Claire Bowen

Mr Spilios Kollias

Dr. Thomas Savoulis

Mr Alex Cafcaros

Councillor Stan Kondilios

Mrs Julie Savoulis

Mr Anthony Condous

Rev. Father Leslie Kostoglou

Miss Christina Savva

Mrs Deanne Coucouvinis

Mr Con Ktenas

Mr Peter Schick

Mr Spiros Coucouvinis

Miss Vicki Liakatos

Very Rev. Father Steven Scoutas

Mrs Helen Coudounaris

Mr Costa Lianos

Mr Con Sfinas

Mr Stelios Coudounaris

Mrs Eleni Lianos

Mr Ken Shadbolt

Mr Michael Daley MP

Mrs Athena Limnios

Justice Terry Sheahan

Mrs Mary Diakanastasis

Mr John Limnios

Mrs Alison Skerman

Miss Natasha Diasinos

Mrs Despina Lucas

SRC Members

Mr Elia Economou

Mrs Elizabeth Marinos

Ms Anna Stamoulis

Mr Harley Economou

Mr Peter Mavrommatis

Mrs E. Stefanou-Haag

Mr Danny Economou

Mr John McCallum

Mrs Aristea Synesios

Mrs Patricia Economou

Miss Natalie Meintanis

Ms Deanne Taliangis

Mr George Eleftheriadis

Mr Peter Meintanis

Judge K.V. Taylor

Mrs Evgenia Eleftheriadis

Mrs Sylvia Melas

Mrs F. J. Taylor

Mr Mike Flokis

Mrs J. Michalski

Consul General Vassios Tolios

Miss Eve Gambriell

Mrs Chryse Mio

Mrs Dora Tomanidou

Mrs Kim Georgas

Councillor Scott Nash

Mrs Elsie Tsangaris

Mr George Georgoulopoulos

Mr Geoff Newcombe

Mr Anthony Tsoutsa

Mrs Amalia Ginis

Rev. Father Sotirios Papafilopoulos

Mrs Helen Vakas

Councillor George Glinatsis

Mr Michael Papanikolas

Rev. Father Constantine Varipatis

Mrs V. Grillakis

Mrs Irene Paraskevas

Presv. Eleni Varipatis

Mr Kevin Haag

Mrs Dina Parris

Mr Peter Vlahopoulos

Mrs Mary Hamer

Mrs Maria Pascalis

Mr Peter Wennersten

Mr Peter Hamer

Mr Agapitos Passaris

Mrs Sophia Hatgis

Mrs Irene Passaris

Mr Harry Hirakis

Mr Con Pattey

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ACKNOWLEDGEMENTS

THE LECTURE

Warm thanks are extended to the following people for making the evening an unqualified success:

FEDERATION AND CULTURE

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His Eminence Archbishop Stylianos for naming the series of Lectures

REFLECTIONS ON THE AUSTRALIAN CONSTITUTION

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The Speaker, the Hon. John Hatzistergos for delivering an erudite, engaging and incisive lecture

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Father Steven Scoutas for his Vote of Thanks

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Mrs A. Katsogiannis in her inimitable role as the MC

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Mrs Angela Roditis and all the P&F members for their support. It is this kind of partnership with our parent body that

Alfred Deakin (1856 – 1919), one of the Founding Fathers of the Australia nation and its second Prime Minister, once remarked that the “accomplishment” of Federation “must always appear to have been secured by a series of miracles”. 1

helps our College to grow academically and socially

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The Year 12 students and their Year Adviser Mr Condous for assisting

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The dedicated School Support Staff who worked so hard to organise and promote the event, namely Mrs Mary Diakanastasis, Mrs Angela Kringas & Mrs Donna Cross

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Mrs Grillakis, together with Mrs Lambi and the Hospitality Students for excellent canapés & cocktails

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The audience who attended and expressed their appreciation for the Lecture

This curious statement was frequently quoted by the leading historian of Australia’s Federation, John La Nauze (1911 – 1989) and has been the subject of much debate amongst contemporary historians. 2

Although Deakin was most passionate about literature, religion and Eastern mysticism in particular, his statement does not suggest that the Commonwealth of Australia Constitution Act (9 July 1900) is a divinely inspired document, or a document that fell from the heavens only to be discovered on the peak of Mount Kosciusko.

On the contrary, Deakin’s words imply that Federation was a profound achievement of the people, an event of colonial self fashioning and a gradual imagining of an Australian identity separate from that of Britain.

strife, the writing of the Constitution during the Constitutional Conferences of the 1890’s occurred at as time of political stability, through a complex process, with many drafts and much revision. And it should not be forgotten that the 1899 referendum which secured support for Federation by a slim majority, was preceded by one in 1898 which failed.

However, the proposition that on 1 January 1901, Australia emerged as nation with full international sovereignty would have astounded the Founding Fathers and the people of Australia. Our Founding Fathers regarded themselves as British and the new Dominion as part of the British Empire.

Indeed, the very legitimacy of the Australian Constitution back then is apparent in the symbolic voyage undertaken to London, seeking to have the Commonwealth of Australia Constitution Bill enacted by the Imperial Parliament at Westminster.

However whilst each of the Founding Fathers had their own perspective, we know that they were tempered by the social and political climate of the time. This is manifested in three specific aspects of the Constitution which are the subject of my address to you this evening.

Eureka Stockade and the cultural impact of gold Many Constitutions have arisen from the blood and ashes of civil war or force of circumstance, but as Deakin remarked at the 1890 Constitutional Conference in Melbourne:

“How much better that we meet as we do now, at our leisure, with a clear prescience of what must be the character of our future, to consider how deep we can lay the foundations of our national strength.” 3 Although 19th century Australia witnessed the so-called ‘Rum Rebellion’ of 1808 – the only military coup in its history – the Eureka Stockade of 1854, and other minor civil

There is much debate about the significance of the Eureka Stockade. Some would argue it is the defining event in Australia’s history; engendering the birth of democracy. Others dismiss it as a much-inflated battle of mythical proportions that was briefly fought and quickly lost. Let us begin with some facts.

The discovery of gold in Australia in the 1850’s stopped the influx of convicts and magnetised global interest, resulting in the trebling of the population. 4 (Continued on page 12)

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Australia was to become a major producer gold- about onethird of the global output of gold was from Victoria alone. 5

The prized metal mobilised countless men and women from all over the world, causing a flood of immigrants that would change the shape of Australia’s cultural landscape for many decades.

In the words of one historian:

Gold drew English Chartists and Irish Repealers, participants in the French, German, Belgian and Hungarian revolutionary upheavals of 1848, Polish and Spanish insurrectionists, Italian nationalists, a great and mixed crowd of political enthusiasts, dauntless champions of lost causes, visionary idealists and fervent exponents of utopian theories. 6 In August 1851, the colony’s leading politician – William Charles Wentworth – famously stated: “The discovery of gold must in a very few years precipitate us from a colony into a nation”. 7

Obviously, it was an ambitious declaration, but not a surprising one since the symbolic power of gold as a sacred artefact underpinned ancient civilisations. Gold had created cities in the past and in Wentworth’s mind; it could create a nation out of a colony; but what kind of nation?

The British government was conscious of the expectation that new migrants to Australia would harbour – an expectation of some democratic rights.8 Perhaps some Britons were even astute enough to realise that the development of a political consciousness amongst the diggers (who were excluded from full citizenship) was almost inevitable.

Diggers increasingly felt politically excluded. The very

right to dig was subject to a license and the licensing scheme was robustly enforced by a heavy-handed police force. The 1850’s witnessed much public agitation and democratic movements by diggers who sought voting rights and the right to own land.

Of course, the former presumed the latter and since diggers were classed as squatters or vagabonds with no genuine claim to land, they sought to shift the political paradigm so that the right to vote was not based on ownership of property but on the desire to play a part in the future of a new country and the desire to make a new start in the ‘New World’: the old slogan of English Chartists: “One man, one vote”. 9

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With these thoughts, on behalf of the Primate of the Greek Orthodox Church in Australia, His Eminence Archbishop Stylianos, it is my distinct personal pleasure to offer a Vote of Thanks to the Attorney General and Minister for Justice in this State, the Hon John Hatzistergos, for his insightful and illuminating Lecture this evening, and I ask that we all share our appreciation of this momentous lecture on the historic occasion of this School’s Silver Jubilee by way of resounding acclamation. Thank you.

This notion was reflected in the language of the resolutions passed at diggers meetings. For example, one such resolution stated that:

…as all men are born free and equal, this meeting demands the right to a voice in the framing of the laws which they are called to obey. 10

The struggle for suffrage culminated in the Eureka Stockade of 1854. It was a small rebellion, but the battle involved arms and lives were lost.

Although he was not an Australian writer, Mark Twain – who visited the Victorian Goldfields in 1895 – describes well the cultural impact of gold and how it engendered Australia’s national consciousness. He wrote of the Eureka Stockade: By and by there was a result, and I think it may be called the finest thing in Australasian history. It was a revolution – small in size; but great politically; it was a strike for liberty, a struggle for principle, a stand against injustice and oppression … it is another instance of a victory won by a lost battle. It adds an honourable page to history; the people (Continued on page 13)

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VOTE OF THANKS

time; I had different play lunch prepared by my mother; and after school I attended Greek language lessons while other children went to the park and played. Reconciling cultural differences is not easy for children. It has left me with insight and sympathy for the most recently arrived in our community seeking to make a new home and a new life in a new land. For me, as for them, somehow and sometimes things managed to work themselves out. After all, boys from Redfern do not cry, especially those of Greek parentage; we just push along. Remember, this is the area which produced a generation of the nation’s finest footballers, not to mention a couple of Labor premiers along the way. Despite all the Redfern doom and gloom stories that we may hear, I put on record that it was a great place in which to grow up and a great place to be educated. For sheer determination to succeed and achieve, the migrant community of Redfern in my boyhood was one group that could definitely be banked on. So I take this opportunity to say thank you and to acknowledge the contribution which my schools, my teachers, my community and my family made towards forming my education and development.” This evening, in the setting of a different school, one that his parents’ generation could only have dream about, and in the presence of a new breed of teachers and students, yet in the welcoming comfort of the same community that nurtured him earlier in his life, those of us who identify with his experiences as the children of immigrants express both our admiration and gratitude for his humility in public life, but also for his studious and responsible application of the law, which is an inspiration to the younger generations of the Greek Australian presence in this Country, and what must be a refreshing example of integrity appreciated by the Members of the Judiciary in general. Reflecting on the Australian Constitution, the Attorney General has, this evening, given us new insights into his political maturation through the prism of Federation and Culture. His succinct yet highly intuitive appreciation of our Nation’s Constitution has demonstrated why Australia maintains perhaps the highest degree of democracy of any nation in the world. In the words of that great statesman of pre and post-

junta Greece, the late Prime Minister and President, Constantinos Karamanlis, “Greece gave birth to democracy. Australia has elevated democracy to the supreme level”. His Eminence Archbishop Stylianos, appreciating the extremely pertinent subject chosen by the Hon. John Hatzistergos for this evening’s Lecture, has asked me to convey the following thoughts. The Church, also, is a ‘federation’ reflected in the lives of millions of Australian citizens. As a system of autocephalous and autonomous local ecclesiastical authorities, the Church constitutes a federation bound as a whole by an essential relationship of αλληλεγγύη, togetherness, manifested in the image of a single body. In this sense, the Western term ‘solidarity’ is perhaps more apt in that it describes the stable, solid, organic unity enjoyed by homologous Churches, and not just the sum total of its branches. This is the moral message of the ‘federation’ of Orthodox Churches which view such solidarity a primacy - a primacy of honour, responsibility and ministry, though never a ‘papal primacy’ and especially in conjunction with the papal notion of ‘infallibility’. Interestingly, the Attorney General, because of his devotion to the Orthodox Church, an attribute publicly recognized and admired by His Eminence, has tonight also stressed the moral fundamentals that distinguish the Constitution of Australia and allow us the cultural and religious freedoms enjoyed by all citizens of this blessed Nation. In conclusion, then, given the ‘Religious Freedom’ guaranteed to all Australians by section 116 of the Australian Constitution, and Racial Equality intended by Section 51, permit me to note that the reflections shared so intimately by our Keynote Speaker provoke us to ponder the present and to pray for the future. Currently, only 64% of Australians profess to be Christian. Some 24% claim to have no religion. One can only contemplate what the religious and cultural complexion of Australia might be in the year 2038. Will our Nation still be predominantly Christian? Might we have a non-Christian Prime Minister? We fear not, trusting that there will prevail mutual respect, understanding and tolerance amongst all of Australia’s citizens, as safeguarded by our Constitution.

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knew it and are proud of it. 11

Naturally, the authorities of the time reacted with much concern and, following a Royal Commission, the diggers received the suffrage they so desperately craved. A snowball effect ensued: manhood suffrage was granted in Victoria in 1857 and other colonial Constitutions followed suit. However, the reverberations of the Eureka Stockade did not end there.

By the time of the Constitutional Conventions of the 1890s, the seminal act of the diggers – fighting for the right to vote – had a profound effect on the framing of Australia’s Constitution.

It was these diggers, who were not only migrants, but migrants marginalised by the English discourse of rank, privilege and power, and therefore seen as outsiders, who indirectly paved the way for the Founding Fathers to establish a system a Government through a Constitution that entrusts ultimate sovereignty I the people. Section 7 of the Commonwealth Constitution unequivocally states that the Parliament shall be “directly chosen by the people”. The High Court only recently considered this section of the Constitution as part of its landmark decision in Roach v Electoral Commissioner 12.

that refers to religion and one of its few express guarantees conferring individual rights. Section 116 of the Constitution forbids the Commonwealth from making any law for establishing any religion or for imposing any religious observance. It also prevents the Commonwealth from legislating to prohibit the free exercise of any religion.

The historical background to this aspect of the Constitution is apparent in the religious climate of late nineteenth century Australia, a climate of tolerance characterised by an “anti-sectarian endorsement of religion”13.

The Constitutional Conventions of the 1890s gave very little appearance of being concerned with religious issues. It was only with the emergence in 1897 of a movement to have a reference to “Almighty God” in the preamble that Henry Higgins, a non-denominational Victorian, moved to counteract such an explicit reference to Gold with a safeguard clause protecting people from Federal interference in religious affairs.

One would think that a religious consciousness was prevalent in British and therefore Australian society at the time of Federation, however the inclusion of a reference to God in the preamble became one of the most vexed issues in the final two Conventions and the media reports of 1898, and was the subject of intense lobbying by church leaders (notably the Archbishop of Sydney, Cardinal Moran, and the Seventh-Day Adventist Church).

The Court upheld the fundamental human right to vote, finding that the Federal Parliament had acted unconstitutionally in imposing a blanket ban on prisoner voting. The Court held that the Constitution, which require that the Houses of Parliament be ‘directly chosen by the people’, enshrines the right to vote, a right that may only be limited for a substantial reason.

Whereas the Preamble to the Irish Constitution has an explicit reference to “the Most Holy Trinity”, the American and Canadian Constitutions (which were the two points of reference for the Founding Fathers), had no reference whatsoever to the Divine; speaking instead of “perfect Union” by “the People”.

The freedom of religion in the Australian Constitution

Ironically, the text of the 1898 debates suggests that the

I move now to the only section of the Australian Constitution

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eventual inclusion of “Almighty God” in the preamble and the attendant safeguard of Section 116, had very little to do with religion and everything to do with politics.

The South Australian Catholic, Patrick Glynn, insisted on the preamble’s reference to God because it was necessary to ensure “greater support from a large number of voters”14.

On the other hand, Henry Higgins’ argument for a section that enshrined freedom of religion, while predicated on the need to prevent the emergence of what he saw as a theocracy, was attended by a confession. Higgins confessed to acting “with a view to secure a great number of votes in favour of the Constitution”. 15

Notwithstanding this, the outcome of the Constitutional Conventions is significant insofar as no denomination was given any particular standing in the Australian Constitution and Federation itself was seen as a talisman that would bring unity from disharmony.

Whilst our Founding Fathers acknowledged Christianity’s prominence in the colonies, in establishing Australia’s political and legal system, they inadvertently sought to ensure that the Christian values embedded in their British heritage did not define the legal world of the country’s Constitutional Court. There are numerous examples of how the law’s primary function of maintaining good order and upholding justice in society can be confused with Christian morality.

The English common law’s defence of slavery as part of the law of property was based on Biblical defences until the famous decision of Lord Chief Justice Mansfield in 1772, condemning the practice. Biblical explanations were also used to justify the law’s acceptance of a husband raping his

wife and the doctrine of husband and wife being “one flesh” resulted in one spouse being prevented from suing the other in the law of torts. Both laws have since been repudiated.

Nonetheless, it would be ludicrous to suggest that our laws are free of any values or an ethical dimension and that Judges confront controversial cases armed with cold logic and the machinery of precedent.

All policies have values attached to them, but in my experience, where Christians are on both sides of politics, they hold differing views about, for example, what the appropriate sentence is for X or Y crime and, ironically, citing Scripture in a political argument is not the exclusive right of believers. Some policies enacted by governments will invariably be hostile to Christian values, while others will originate in them.

The Founding Fathers saw it fit to keep religious issues largely out of the Federal Parliament and the Courts and it has meant that legal discourse has by and large not been influenced by the culture wars that were seen in the Americas.

A case in point is Cattanach v Melchior 16 which involved a parent’s claim for damages against a doctor who did not perform a adequate sterilisation procedure. The parents argued that they should be compensated for the doctor’s negligence resulting in their having to raise a healthy but entirely unintended child.

What is the role of the law in deciding whether an unintended child can be a blessing to the parents and yet a burden that could be blamed on the doctor? How should the High Court judges decide a case such as Cattanach when there is no directly relevant statute or clear precedent to go on?

Vote of thanks by Father Steven Scoutas

Reverend Fathers, the Hon. the Attorney General, Minister for Justice and Acting Minister for Education and Training, the Hon. Consul General for Greece in Sydney, Members of the Judiciary, Head of College, Parish President, Chairman of the Board, other Distinguished Guests, Staff, Students, Parents and Friends,

In the first instance, I have been requested by the Primate of the Greek Orthodox Church in Australia, His Eminence Archbishop Stylianos, to convey his sincere regret for his inability to attend this evening’s significant Lecture, not only to our Guest Speaker and the Members of the Judiciary, but also to the Head of College and the entire St Spyridon College community.

His Eminence, who has honoured the ‘Appreciating Culture Lectures’ with his presence in previous years and indeed was the Keynote Speaker in 2005, is absent tonight precisely because of an obligation arising out of Sections 2, 3, 4, 5, 61, 62, 63, 70 and 126 of the Constitution of Australia as enacted at Federation in 1901. As you may have gathered, the Archbishop is already in Canberra for the Swearing-in Ceremony early tomorrow morning for Quentin Bryce, AC, as Australia’s 25th Governor-General, and the first woman to occupy that position.

Our Keynote Speaker tonight has eloquently delivered his own ‘Reflections on the Australian Constitution’ which have broadened our appreciation of the ideals that emanate from that concise charter that determines what we call the ‘Australian way of life’ and the benefits which arise out of our brief history, thanks to the founding fathers such as Alfred Deakin and Sir Henry Parkes.

However, during his maiden Speech to the Legislative Council in the Parliament of New South Wales, on 26th May 1999, speaking in support of the (Special Provisions) re-

garding the Development of Walsh Bay, our Guest Speaker at this year’s Appreciating Culture Lecture, the Honourable John Hatzistergos, amongst other richly articulated comments, had this to say: “Recently I came across a book entitled All Too Human: A Political Education. The author is a Greek American, George Stephanopoulos, a well-known former adviser to United States President Bill Clinton. In the book Stephanopoulos evokes what it meant to be a Greek immigrant in America, using the following terms:

Greeks came to America from dozens of islands and hundreds of villages but here they formed a single clan, united by heritage, language, and a need to achieve. Those of us in the second generation understood that honouring the sacrifices of our parents and grandparents - the labourers, cobblers, waiters and cooks - meant getting a good education, and putting it to good use - as doctors, lawyers, professors and politicians. Assimilation for Greeks didn’t mean blending in; it required standing out. The rules were so clear they didn’t need to be said. Make your name, and don’t change it. Make us proud and don’t forget where you come from.”

Our Guest Speaker went on to say: “Greek Australians are no different. Their sentiments and expectations are the same as those of their American cousins. As a new parliamentarian of Greek parentage I endorse the particular emphasis that Stephanopoulos underlines as part of his Greek heritage, the need to put one’s position to good use. It is to that task as a servant of the people in this Parliament that I dedicate my strength and all my effort. He went on to say: “I recall in my earlier years at school sometimes being embarrassed about my origins. There were taunts in the playground because my name was different; I went to Greek Orthodox scripture lessons; I observed fasting days; I celebrated Easter at a different

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Well the judges scratched their wigs and agonised over an uncertain question that elicited contestable answers. Inevitably some judges drew on their personal experiences; others such as the Chief Justice Gleeson endeavoured to extrapolate from similar but invariably different cases. Some appealed to “a hierarchy of societal values” and others embarked on what Justice Kirby critically dubbed “judicial interpretation of Scripture”. The text of the judgment even quotes the Gospel according to St John.

In the final analysis, the High Court deemed it appropriate to decide the case with recourse to the ordinary principles governing the recovery of damages for the tort of negligence but it did so by the thinnest of margins – four votes to three, deciding that whilst damages were recoverable, they should not be offset by the benefits of having a healthy child.

Evidently, while section 116 of the Australian Constitution has seen the High Court uphold freedom of religion as “the paradigm freedom of conscience” and “the essence of a free society”, the High Court has simultaneously maintained a constitutional separation between Church and State without resorting to strict “wall of separation” approach; freedom to believe is not freedom to go against the laws which apply generally to the community.17

It is fair to say that Australia has become a more religiously diverse country than what was envisaged by the Founding Fathers, but section 116 of the Constitution has served Australia well over the past century. While religion has a voice in modern Australian discourse; it has not resulted in any form of religious polarisation. To quote form Justice Mason again: Hostility to any form of theocracy is definitely an aspect of our Australian legal heritage. I also like to think of it as part of our Christian heritage, because it reflects my understanding of scriptural principles about not using the institutions of State to resolve religious disagreements. Australian law’s unwillingness to get involved in theological disputes also stems from our pragmatic spirit and our distrust of Authority. It is part of the reason why we have not needed to erect a strong constitutional separation between Church and State. 19

At the very least it can be said that religious intolerance in dead and buried, but this did not automatically happen at the time of Federation. And this brings me to the final dimension of the Constitution I wish to talk about.

White Australia Policy By contrast, the stringent and at times pedantic separation of Church and State in America arising from the First Amendment has, if anything, backfired, resulting in the politicisation of religion amidst an environment of dogmatic enforcement.

I want to briefly touch on section 51(xxvi) of the Constitution (the race power), the adjacent clause 51 (xxvii) (the immigration power), and that very curious power given the Parliament to make laws with respect to “aliens” – section 51(xix). Of course s51(xix) is not about legislating in relation to extra-terrestrial life but about “naturalisation” or acquisition of citizenship.

In the words of former Justice Keith Mason: “constitutional law is not the place to be having profound debates about … the proper separation of Church and State.” 18

Federation brought Australia closer to modern nationalism but it also meant that open immigration was replaced with exclusionary policies. One of the first Federal laws passed (Continued on page 16)

APPRECIATING CULTURE

ST SPYRIDON COLLEGE

THE LECTURE

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in 1901 restricted Asian immigration. Australia’s first Prime Minister, Edmund Barton, spoke in defence of the Commonwealth legislation saying: The doctrine of the equality of man was never intended to apply to the equality of the Englishman and the Chinaman … Nothing we can do by cultivation, by refinement, or by anything else will make some races equal to others. 20

Australia’s second Prime Minister (Alfred Deakin) took a different view and famously said about the Chinese: It is not the bad qualities but the good qualities of these alien races that make them dangerous to us. 21

But the fact remains that as a direct consequence of the implementation of the White Australia policy, any sense of nationalism was founded on white, Anglo-colonial sense of kin and community. The Commonwealth Electoral Act of 1918 distinguished between citizens and non-citizens in the appointment of rights and duties such as voting, jury service and public sector employment. Australia’s indigenous peoples were either ignored or stripped of their identity, and any religion outside the Judaeo-Christian framework was treated with suspicion.

How was such an underlying xenophobia overcome by tolerance? Although some would argue that it was not until the Whitlam Government of 1973 that the exclusionary policies of early 1900 and the assimilation policies of the post World War II era ended, there are some tensions behind such an argument.

Interestingly, by 1914, three times as many Greeks lived in Australia as in 1890. A total of 4,775 Greeks arrived in Australian ports in the 12 years to 1914, and the only one excluded from entering was a criminal. 22 Australia was more willing than most nations to admit peo-

ple who appeared different within its borders. Between Federation and the First World War, many Italians, Maltese and Jewish Russians arrived and formed a significant minority of migrants who remained. The White Australia policy restricted any further arrivals of Afghans but did not oppose those already working in transport and trading industries in Central Australia. And there were few restrictions on Jewish people entering Australia. In fact from 1933 to 1961, the Australian Jewish population was almost trebled by immigration from Europe. The 1960s witnessed the arrival of migrants from Turkey and Lebanon, and the referendum of 1967.

Two Constitutional amendments were overwhelmingly endorsed on 27 May 1967, winning 90.77 per cent of voters and carrying all six states. 23 The referendum removed the phrase “other than the Aboriginal race in any State,” in section 51 (xxvi), giving the Commonwealth the power to make laws to benefit the Aboriginal people. The referendum also deleted section 127 of the Constitution.

The Multicultural policies of Australian governments in the 1970s consummated in two High Court judgments of the 1990s – ‘Mabo’ and ‘Wik’ – declaring that, in Australian common law, Indigenous customary law is alive and well as a legal tradition.

I want to briefly touch upon an event in 1998 that was attended by intense public interest – the handing down of Kartinyeri v The Commonwealth 24 – the so-called “Hindmarsh Island Case”.

Ostensibly the case decided by a 5:1 majority that the Hindmarsh Island Bridge Act 1997 (Cth) was constitutionally valid. What was of greater interest, however, is the interpretation of the Commonwealth power to make laws with respect to the people of any race.

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Applicants argued that s51(xxvi) was confined so as to authorise only laws for the benefit of ‘the people of any race’ generally, or, particularly, for members of ‘the aboriginal race’. The Government of the day instructed its Solicitor General to make a case that so such restriction applied.

Chief Justice Brennan and Justice McHugh made no decision as to whether s51(xxvi) is subject to any such limitation. And the remaining four judges hearing the case split into opposing camps on the matter. Justice Gaudron noted that the original intention of the power at the time of Federation was to authorise laws which would discriminate against people of particular ‘coloured’ or ‘alien races’. But the power in s51(xxvi) is not a bare power, and the words ‘for whom it is deemed necessary to make special laws’ have over time been given special operation. Gaudron J argued that if the amendment or repeal were to affect the nature of the principal Act so that it is no longer for the benefit of the particular race in question, it could be rendered constitutionally invalid.

Justices Gummow and Hayne conclude that the Parliament is authorised to make laws which were not for the benefit of the indigenous races but left the question open as to whether there could be laws enacted which might be invalid if Parliament acted in ‘manifest abuse’ of its role.

Kirby J examined closely the history of the 1967 referendum concluding that the amendments were not passed in order that laws could be made for the detriment of Aboriginal people. He warned that the interpretation advanced by the Commonwealth Governments legal counsel, implied that the Federal Government had the power to pass laws similar to the apartheid laws of South Africa, or Nazi Germany’s anti-Jewish laws.

In other words, the High Court was in a deadlock on the

underlying issue of the case.

Whilst the original intention behind the race power was a discriminatory one, the passage of the time has seen the meaning of the race power change considerably.

Certainly, the issue of the White Australia policy is far more complex than this cursory glance I have afforded, but I simply wish to illustrate that the resolution of cultural conflict in Australia was a slow and gradual process, and yet a process that today has catapulted Australia beyond even the discourse of multiculturalism, into a wider discussion about a broader spectrum of aspirations, and an imperative to reinvent Australia with a vision for the new century with a new sense of citizenship.

Concluding remarks Unlike other countries, the Commonwealth Constitution does not set out a comprehensive statement of citizen’s rights.

Essentially it is an instrument designed to bring together the colonies of the time, distribute functions and outline powers between institutions. Yet it has been the foundation for over a century of balanced government and constitutional democracy.

We sometimes take for granted how fortunate we are here in the Antipodes to have an independent judiciary; to have a system of government that is held in check by the Separation of Powers; and to have a system of suffrage that allows people to hold governments to account.