Because certain States have decided to exercise their rights to test the validity of the new taxation laws under which the Commonwealth is to impose income tax for both Commonwealth and State purposes, their Premiers are being accused in some quarters of improper conduct.
The testing of the constitutional validity of a far-reaching law is described by one journal as "forensic hair-splitting". A spate of criticism gushes out, all based on the idea that to uphold the Constitution in time of war is undesirable, even if it is not actually subversive. I say "to uphold the Constitution" because, if the High Court finds the laws valid, the Constitution will be upheld and the Commonwealth's power to make these laws judicially affirmed , while, if it finds the laws invalid, it will be because the upholding of the Constitution requires that result. The appeal to the Court is therefore simply the appeal to the Constitution, whose interpreter the Court is.
Now, why is this thought to be improper? There is here such confusion of thought that I want, as a lawyer of experience and a responsible and sober public man, to discuss it with you.
My own proposition is this: that this war is one for law and order, in other words for international security under international law. It is a war for freedom; and that hackneyed phrase, if we understand it, means that we are fighting to preserve that equal justice under the law which it has taken centuries of our history, and much blood and sacrifice, to produce. It is a queer notion that justice according to law, should be accounted nothing - or even "forensic hair-splitting" - when our very freedom depends upon it.
At this moment our men are fighting for our hearths and homes. Yes, but also for a free Parliament, for open and incorruptible courts of justice, for the even administration of laws freely enacted and honourably obeyed.
If we think with horror and repugnance of Nazi tyranny it is because, under the brutish practices of the Putsch and the Gestapo, the law is no man's protector, and the judges, ceasing to be his defenders, become the agents of oppression.
Do not let us begin to think lightly of the law. It rule, its power, its authority, are at the centre of our civilization.
The great advocate, Erskine, speaking in court in 1792, said, "If I were to ask you, gentlemen of the jury, what is the choicest fruit that grows upon the tree of English liberty, you would answer 'Security under the law'. If I were to ask the whole people of England the return they looked for at the hands of government for the burdens under which they bend to support it, I should still be answered 'Security under the law'". Those words are as true today as when they were spoken, and they were spoken in a year when revolution was running red riot in France; when England, led by the younger Pitt, was within a few months of war with France - with a Napoleon ready within two years to win his first victory against the English, and to begin his fluttering and threatening of the entire civilized world.
Of all laws, that of the Constitution is at once the most fundamental and the most sacred. Parliaments may tell us from day to day what we are to do or not to do. The Parliaments themselves are controlled by the Constitution, which is not their servant but, on the contrary, their master.
The Commonwealth Constitution is the organic law under which the Commonwealth Parliament and the Commonwealth Government are set up and exercise their function.
Neither Parliament nor Government can alter it. Only the people can do that. They were its creators forty years ago. They are its masters still.
You will at once see, if you have followed me so far, that to ignore the Constitution, to treat its structure and the limitations it imposes upon the powers of the Commonwealth Parliament as of no account, to endeavour by clamour to prevent recourse to the courts for its interpretation, is to violate the whole conception of the rule of law. It is to the credit of the Commonwealth Government that its responsible spokesmen have taken no part in this clamour.
If inciting people to disregard and disobey some petty local statute is an offence, is it to be a sign of merit to incite them to disregard and disobey the basic law under which our free institutions live?
These things have only to be thought about to be clearly understood.
If the day is to come when the courts are to be closed to the aggrieved citizen, when the King's writ is not to run because popular uproar wills it so, when the appeal to the law is to be an occasion of scoffing, then that day will cast a black shadow across British freedom. For Erskine's "security under the law", mark you, is not such security as your opponents, being in a majority, may concede; it is not something precariously dependent upon the whim of a mob. It is that security to which a man may confidently and calmly appeal, even though every man's hand may be against him. The law's greatest benefits are for the minority man - the individual.
Whatever public opinion may be - and most of us know little of the merits of this taxation argument, and will know but little more until our assessments come in - the Premiers have a perfect right, and indeed a duty, to see that whatever is done by any Parliament of this country is done in accordance with the powers conferred upon it by the supreme law of the land.
12 June, 1942