#7200 - Federal Constitutional Law Policy - Federal Constitutional Law

Some general points to note about constitutional interpretation

• Sir Anthony Mason; Constitutional Interpretation: Some Thoughts

  • Very few judges have committed themselves to a given theory of constitutional interpretation for fear of being locked in and also because none have proved to be flawless or offer comprehensive guidance

  • The prevailing approach of the High Court has been that for a doctrine to manifest itself it must be based on the text and structure rather than unexpressed assumptions

    • (But even this is tenuous as to what extent it must be present – see for e.g. Dawson J’s dissent in the cases on IFPC)

  • There is an issue to what extent evolutionary development may take place with the Constitution

    • Some constitutional terms have been accepted as being capable of dynamic or evolutionarily developed (e.g. the scope of copyrights, patents and trademarks in Grain Pool)

    • Some judges have expressed a preference for evolutionary interpretation even if not supported by legislative endorsement – Sir Anthony Mason here and

  • S.A.M. says that intentionalism and originalism offer limited guidance – partly because there is a difficulty in discerning their intentions but also because of transporting that intention to a contemporary setting

    • (This is reflected by the Work Choices Case where the majority made clear that intentions shouldn’t be attempted to be distilled; such an idea is a “mirage” – Callinan J however resorted to considering the subjective intentions of the founders arguing that were the corporations power so broad it would have been more controversial at the time.)

• Dan Meagher; Guided By Voices? Constitutional Interpretation on the Gleeson Court

  • The commitment to textual originalism and progressivism is a strange dichotomy of competing interests

    • Those on one side argue the others are engaged in ‘a quaint ritual of ancestor worship’

    • The others argue that progressivism violates the rule of law and federalism and at the same time is really ‘an argument against having a constitution’

      • These are just points taken to their logical extreme

  • It is generally accepted that historical records can have a bearing on the scope and effect of a constitutional provision – for e.g. Cole v Whitfield decided the scope of s 92 on such a basis (they called this “textual originalism” rather than “intentional originalism”; was recognized as early as the Drawbacks Case but even then this case emphasised the primacy of the text

    • Callinan J was to take this further and accept that their subjective intentions could form the basis of an interpretation

  • Certain terms have proved not to admit a specific and confined meaning – for example intellectual property rights in Grain Pool, the concept of a jury

    • Also note the endorsement in Grain Pool of Higgins J’s statements in the Union Label Case that ‘trade marks’ gives us the central type but not the radius of the power

  • But the court has largely refrained from reading words into the constitution

    • The dichotomy is present in s 80 on jury trials

      • Sir Owen Dixon’s righteous words “there is high authority that the Constitution is not to be mocked” is contrasted with the modern view that it is no more than a procedural provision (Cheng)

      • But the term ‘jury’ itself as a constitutionalised term of art, has by the court shown to be susceptible to reflect developments in the institution of trial by jury through “essential features” e.g. representative of the community is a conception that changes

    • Heydon J recognizes these two as examples of ‘ambulatory language’ (Grain Pool) or an ‘essential characteristics’ approach with juries

  • The need to adapt the constitution, as far as the text and structure permits, to equip the Parliament with the legislative means to adopt to new discoveries underpinned decisions in Grain Pool

    • Furthermore the practicality of adopting a particular direction has been adverted to – e.g. in Re Wakim but they all rejected any consideration that it was decisive of constitutional interpretation

    • But a question arises as to what extent the social utility of a particular constitutional interpretation can inform a judge’s reasoning – e.g. ‘vertical fiscal imbalance’

• Justice Selway; Methodologies of constitutional interpretation in the High Court of Australia

  • Regards the majority of Australian justices in the HC as primarily textualists – that is primary interpretative tool is the text

  • On intentionalism he comments that evolutionary interpretation is not inconsistent with originalism as it is not a “great leap of logic to assume that the framers themselves expected and intended that the Constitution would change over time”

• Broad questions to keep in mind:

  • Is it necessary for judges to adopt a particular interpretive framework

    • Kirby J in Eastman argues that constitutional interpretation should be consistent – else the approaches would be haphazardly used to select whichever approach produces the desired outcome

  • Is it desirable to adopt one over another?

    • There are obviously arguments both way and it largely turns on the considerations below about the federal balance

  • Which approach is consistent with the role of a judge?

Some points about constitutional interpretation and the federal balance

• Leslie Zines, The State of Constitutional Interpretation

  • Payroll Tax Case – Windeyer J declared that the Engineers’ Case was a result of the realization that “national laws might meet national needs”; Zines argues that this view suggests that flexibility and adaptability to changing circumstances necessarily results in a steady increase in Cth power

  • Zines distinguishes between the doctrine of reserved powers and the doctrine of implied immunity of instrumentalities:

    • Reserved Powers is not based on federalism but rather a particular type of federalism which it was thought that the constitution embodied which promoted the court to reconcile specific grants of s 51 against implied grants of power to the State

    • Implied immunities was a doctrine based on the coordination of independent governments and thus about federalism

  • He notes the particular problems expressed to do with the Corporations Power

    • Higgins J in Huddart Parker regarding the consequences of an interpretation of the corporations power to any law directed at them would lead to disastrous consequences

    • The competing view was expressed in Actors Equity by Mason J who said that the power was intended to be wide enough to encompass all matters of national concern

      • Thus there is a competing hypothesis and competing interests of a federal balance and national concern

      • What are the benefits of federalism that could be lost See public law essay

      • As too national interest note what Brennan J said in Tasmanian Dam – “the complexity of modern commercial, economic…activities increases the connections between particular aspects of those activities and the heads of Cth power and carries an expanding range of those activities into the sphere of Cth legislative competence”

        • As a result any view that States have “reserved powers” would freeze the system of Federal/State at a point in time and retard development

  • Similar debates have been levelled with respect to the grants power and the external affairs power

  • There is an inherent difficulty with the idea of a federal balance – federalism is a matter of degree; at which point can a body no longer be entitled to be called a ‘federal state’ and where in the Constitution is there an indication as to the extent to which it is constitutionally permissible

    • In Melbourne Corporation Dixon J said the only thing the constitution seems to envisage is that the States are bodies politic whose existence is independent of the powers allocated to them

  • Note also the approach of ‘manufacturing inconsistency’ – has not gained much traction since its genesis in West v Commissioner of Taxation and was criticized by Windeyer J in as asking the wrong question and resonates with “echoes of doctrine long discarded”

Some particular judgments and points to note

• It has long been the case that interpretation and application of laws are a choice rather than a mere declaration – orthodox legal reasoning depends on “categories of illusory reference” (Julius Stone)

• Isaacs J in the Wire Netting Case emphasised the primacy of the of granted power of the constitution – saying that any exemption of States would frustrate the legislation

• The Joint judgment in Engineers’ Case emphasised the golden rule and the importance of the text rather than implications and ideas of ‘political necessities’

  • View this in light of Windeyer J’s comments in the Payroll tax case – the engineers case was a realization that Australia, “now one people and Australia one country and that national laws might meet national needs”

  • Cf. the view of RTE Latham; “The Law of the Commonwealth” that the case itself was based on an unexpressed assumption that the Constitution was intended to create a nation and that preceding views about the constitution were ‘out of date’ – it was a “quasi-political decision based on a far-sighted view of ultimate constitutional policy”

    • Such ‘unexpressed assumptions’ are also evident when one considers the Jumbunna Principle which in substance says that the court should lean towards increasing rather than decreasing the field of power available to the CTH

    • Why such an approach? Sir Garfield Barwick in his retirement speech recognized that the constitution is not often changed and the constitution itself enumerates powers available to the CTH – court’s merely interpret them...