Law Notes Federal Constitutional Law Notes
Cases and materials summary notes based on Blackshield & Williams Constitutional Law (2011), super summaries intended for easy reference in an open book exam and "policy notes" geared towards writing essays. Structure of the cases and materials summary notes are as follows:
Class 1- Fundamentals of Australian Constitutional Law
Class 2&3 - The high Court and Constitutional Interpretation
Class 4 - The High Court and Characterisation
Class 5 - Inconsistency
Class 6&7 - Economics Powers
Cl...
The following is a more accessible plain text extract of the PDF sample above, taken from our Federal Constitutional Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
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...
Buy the full version of these notes or essay plans and more in our Federal Constitutional Law Notes.
Cases and materials summary notes based on Blackshield & Williams Constitutional Law (2011), super summaries intended for easy reference in an open book exam and "policy notes" geared towards writing essays. Structure of the cases and materials summary notes are as follows:
Class 1- Fundamentals of Australian Constitutional Law
Class 2&3 - The high Court and Constitutional Interpretation
Class 4 - The High Court and Characterisation
Class 5 - Inconsistency
Class 6&7 - Economics Powers
Cl...
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