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Federal Constitutional Law Policy Notes

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This is an extract of our Federal Constitutional Law Policy document, which we sell as part of our Federal Constitutional Law Notes collection written by the top tier of University Of New South Wales students.

The following is a more accessble 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

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Sir Anthony Mason; Constitutional Interpretation: Some Thoughts o

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

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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 assumptionso

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There is an issue to what extent evolutionary development may take place with the ConstitutionSome 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*

(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)

(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 o

The commitment to textual originalism and progressivism is a strange dichotomy of competing interestsThose 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'

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

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

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

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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

The dichotomy is present in s 80 on jury trials

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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)

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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 PoolFurthermore 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 interpretationBut 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 o

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

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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: o

Is it necessary for judges to adopt a particular interpretive frameworko

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?

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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

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Leslie Zines, The State of Constitutional Interpretation o

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

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

oReserved 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 StateImplied 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 PowerHiggins J in Huddart Parker regarding the consequences of an interpretation of the corporations power to any law directed at them would lead to disastrous consequencesThe 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

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

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

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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" o

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

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

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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

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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

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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)

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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

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

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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"

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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 CTHWhy 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 and the constitution works out the rest

McHugh J in Eastman argued that semantic intentionalism was the approach to take in light of the fact that discerning 'legislative intent' was a fiction - the focus was to look at the meaning of the words in their natural sense in the context of the document o

But this didn't mean the constitution was frozen in time - it is constructed at a high enough level of abstraction to be infused with current understandings of concepts

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Heydon J says this is a sort of 'incremental accommodation'

Deane J in Theophanus who argued that the constitution, as it derives its authority from popular sovereignty, after the passing of the AU Acts, should be interpreted broadly as an evolving text o

Compare to Kirby J in Brownlee - the constitution is 'special' and its "language lives and meanings adapts to changed circumstances"

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Note Dawson J's commitment to textualism o

In Nationwide News v Wills he argued that the test of proportionality was not helpful and not a judicial question - if a power is so disproportionate it will fail not because of this but because of a lack of a sufficient connexion

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In Leask he was to expand on this by saying that its origins were in civil law courts where political considerations are important - but in AU Constitutional law such considerations are alien. Considerations of proportionality are only relevant to deciding whether a law goes further than necessary to achieve a particular purpose

Corporations Power - federal balance issues

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In Huddart Parker, somewhat based on the Reserved Powers Doctrine : o

Higgins postulated a number of propositions as to what a broad scope of the corporations power would involve - e.g. restricting the religion of officers working in a corporation

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Overruled in Strickland as based on the RPD ? Now in Work Choices it has been interpreted very broadly

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Mason J Actors and Announcers - the power shouldn't be limited to particular activities but should be a "comprehensive power with respect to the subject matter so as to ensure that all conceivable matter sof national concern would be comprehended"Only Gibbs CJ and Wilson J said the law has to have a nexus to the corporations characteristics - this approached was carried through by McHugh J in Wagner that it was not sufficient for a law to operate on the activities, functions and relationships of a s 51(xx) corporation but rather it must have a relevance to or connection with those corporations (or Brennan J's test of discriminatory operation - it has to discriminate in terms of treatment of corporations for in a sufficiently material mannerBut it was Gaudron J's broader approach which was to be picked up in Work Choices
- as long as the law was expressed to operate on an AFR of a s 51(xx) corporation this was sufficient

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A number of arguments were rejected - both the narrow 'distinctive character' approach of Gibbs CJ in Actors and Announcers and the broad 'object of command approach' - rather than expressing a particular view as to the narrowness of the particular power their honours based their conclusion on these tests as inverting the inquiry of characterisation, starting with a conclusion to find a premise rather than the other way around.

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They rejected the internal/external factors of a corporation test proposed by Isaacs J in Huddart Parker because this wasn't a line that could be clearly drawn - e.g. it isn't clear that employees are internal the corporation as they are external actors engaged to carry out internal functions

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