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Craven, Greg --- "Opinion" [2003] AltLawJl 10; (2003) 28(2) Alternative Law Journal 52

The High Court and the ethics of constitutional interpretation: honesty is the best policy

Most Australian academic constitutional lawyers spend much of their time at least mildly criticising the decisions of 'the High Court. Whether we are blinkered literalists, curmudgeonly intentionalists or gung-ho progressivists, the alleged inconsistencies, illogicalities and downright perversity of the Court's constitutional oeuvre are our natural prey.

That said, it is interesting what we choose not to criticise in the Court's constitutional approach. Forests have died to fuel the rage of commentators over the Court's lack of logic, its disregard of history, and its refusal to have regard to social consequences. Yet a profound silence hangs over the ethical implications of Australian constitutional interpretation. No Australian constitutional law text seems to have an index entry for 'ethics', let alone 'constitutional ethics'. [1]

By ethics here, is not meant substantive ethics-the ethics of this or that constitutional outcome-which often will be highly subjective. Rather, what is referred to is the internal intellectual ethics of the constitutional interpretative process. The central hypothesis on which this piece proceeds is that any method of constitutional interpretation will have to display at least one fundamental characteristic to be regarded as internally ethical: it will have to be honest.

This requirement of constitutional honesty, at least in theory, is not an onerous one. In essence, it means no more than two things. First, that in penning a constitutional judgment, a judge will openly identify his or her constitutional method and suppositions. Whether a literalist, an intentionalist or a progressivist, we will know that this is so, why it is so, and what it means. Second, and consistently with this, in seeking to justify a particular constitutional conclusion, a judge will articulate arguments overtly in conformity with their basic constitutional approach, rather than manufacturing obfuscating propositions designed to avert or blunt criticism. It should not be open, for example, for a doctrinaire intentionalist internally to reach a conclusion on that basis, but to justify it on the grounds of progressive policy.

It would seem that these propositions concerning legal intellectual ethics would be relatively uncontroversial in their application to the constitutional work of the High Court. For example, what would one say of an academic lawyer who calmly confessed that their writings were founded in a basic philosophical or political premise that was carefully concealed on one ground or other, so that desired conclusions could be reached by the deployment of more palatable but intellectually inconsistent arguments? Such a colleague would not be regarded as an asset in any Australian law school.

It therefore is remarkable that, to a very significant extent, constitutional scholars have tended quite calmly to accept a large element of 'benevolent' dissimulation in the constitutional jurisprudence of the High Court. To this end, it is a hardy perennial of virtually any respectable course in Australian constitutional law for the lecturer to opine wisely: 'That is what the High Court actually said-but what was it really saying?' The wider implications of such remarks in terms of interpretative ethics need to be more carefully considered.

In this context, the ethical 'tone' of the Court's interpretative process undoubtedly has been profoundly influenced by the 1920 decision in the Engineers Case.[2] Viewed at face value, Engineers was neither more nor less than the High Court's enunciation of a new, legalistic, literalistic interpretative approach. The real import of the decision, however, was not the fact that it had expounded a new interpretative method, but that this method was constitutionally programmed for the diminution of the States and the enhancement of the power of the Commonwealth. To believe that the decision was not driven substantially by an endorsement of this political vision of federalism on the part of those such as Isaacs passes all belief. Yet our somewhat schizophrenic participation in this game of constitutional double entendre has led us cheerfully to the position that, whereas when an ordinary person says one thing and means another they are a liar, when Sir Isaac Isaacs did this in Engineers, he was merely a literalist.

Similar considerations prompted much of the angst over the decisions of the Mason Court concerning implied rights, a fact that some members of that Court seemingly have yet to grasp. To many critics of the Court, what was involved in these cases was the unedifying spectacle of judges wringing from an unyielding text tortured meanings and 'implications', and dredging from the drafting history of the Constitution propositions that were either unsupportable or quite irrelevant to the legal issue at hand, all with a view to camouflaging the simple fact that the Constitution was being amended at the hands of a progressivist judiciary.[3]

Of course, it is reasonable in this context to ask how a progressivist judge might conduct him or herself in conformity with the standards of constitutional ethics advanced here. The type of situation we are positing is one where conventional measures of constitutional meaning -text, intention, history and so forth-point in one direction, but policy and judicial preference in the other: more or less the situation that applied in relation to implied rights.

The answer is that a judicial progressivist in such a situation is faced with three obvious choices, only two of which are ethical, in the sense that they are honest. The first is to come to a decision that he or she believes to be constitutionally unavoidable, but to represent the wrong policy outcome, and to explain clearly and compellingly why this is so. Such a course is intellectually ethical, if unappealing. The second, more dramatic course, would be to declare the Constitution deficient in the relevant respect, to assert a right of judicial correction, and to argue the policy case for the correction proposed. Putting aside such profound is­ sues as democratic legitimacy, such a course again is intellectually credible, in that it is honest, open, articulate, and will facilitate a proper debate both on the judicial role and the particular course pursued. It requires also, of course, significant courage.

The third course, while politically attractive, is in no sense ethical. This is for a judge internally to identify the relevant constitutional outcome by reference to its desirability as a policy option, but without acknowledging this, to purport to justify his or her decision by reference to such traditional considerations as text, intention and history. To follow such a course is to consciously avoid debate both on the constitutional role of the judiciary, and on the policy wisdom of the particular course concerned. It is not an ethical interpretative course, as being neither open nor honest, standards we willingly (if cynically) apply to our executive governments, and certainly should apply to our Courts.

To this writer, progressive interpretation of the Australian Constitution is repugnant, in that it represents an undermining of democratic institutions by those ill-equipped to take part in policy debate. Yet one could have only an enhanced respect for those who were prepared to pursue such a course openly, honestly and ethically.

Greg Craven

Greg Craven is Professor and Dean of Law at Notre Dame University, Fremantle.

[1] Sec e.g. Blackshicld, T. and Williams, G., Australian Constitutional Law and Theory, Federation Press, 2nd edn, 1998.

[2] Amalgamated Society of Engzneers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129.

[3] Cravcn, G., 'Thc High Court In Australia: AAA Study in the Abuse of Powcr', Thirty-First Alfred Deakin lecture (1 999) 22 UNSWLJ2 16 a1


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