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Meagher, Dan --- "Guided By Voices? - Constitutional Interpretation On The Gleeson Court" [2002] DeakinLawRw 14; (2002) 7(2) Deakin Law Review 261


Guided By Voices ? - Constitutional Interpretation On The Gleeson Court

Dan Meagher[*]

I INTRODUCTION

The purpose of this article is to examine some of the important constitutional decisions of the Gleeson Court and how its members have approached the task of constitutional interpretation. The Gleeson Court commenced its life on May 22, 1998 with the appointment of its most recent member, Chief Justice Gleeson.[1] The first phase of the Court will end on February 10, 2003 when the retirement of Justice Gaudron will take effect. It makes it an opportune time to assess the Gleeson Court’s impact on our constitutional law so far. In addition, the topic has some added spice in light of the lively debate currently occurring in academia and between some members of the High Court as to the merits and legitimacy of different theories of and approaches to constitutional interpretation.[2] This is not to suggest that judicial discussion as to the merits or otherwise of different interpretative methodologies is a recent phenomenon or unique to the Gleeson Court. But what has been different is the frequency and frankness of that discourse, the origins of which can probably be traced to Cole v Whitfield[3] and the mortal blow it delivered to literalism. However, in recent times it would seem that Justice Kirby’s insistence that ‘[b]ecause, by definition, the world of the framers was not that of today’s Australians, it is misleading and prone to result in serious error, to accept as the applicable principle of constitutional interpretation the “intention” of those who framed it’[4] has provoked or at least invited a response from other members of the Court to articulate their own theory or approach to constitutional interpretation. At least one member of the Gleeson Court has responded in kind with a strong riposte to the Kirby approach,[5] while another has seriously questioned the usefulness of a debate which simplifies the complex issue of discerning modern constitutional meaning to a choice between the bindingness or otherwise of the framers intentions.[6]

So it may transpire that the current originalism/progressivism debate has been overstated or is at most an interesting theoretical discourse which provides little instructive guidance to those who are entrusted with the difficult task of interpreting and applying the Constitution to resolve real constitutional disputes. But what cannot be denied is that presently there is an interpretation debate occurring on the High Court and how it unfolds may have a significant impact on the trajectory of our future constitutional jurisprudence.

In any event, the proof is in the pudding. Therefore, the main goal of this article will be to scrutinise the constitutional decisions of the Gleeson Court and explicate the reasons that have informed the judgments. The relevance or otherwise of the originalism/progressivism debate will be considered in this context. In some cases it will be necessary to go beyond the interpretative rhetoric in order to isolate the real reasons for a decision. But first to some preliminary points and a brief overview of the common ground on the Gleeson Court regarding constitutional interpretation.

A A few preliminary points

Firstly, the originalism/progressivism debate present in some recent High Court cases and the academic literature has given rise to some largely unhelpful stereotypes. Those who favour a progressive reading of the Constitution consider judges of an originalist bent to be involved ‘in a quaint ritual of ancestor worship’[7] and call for a uniform approach to constitutional interpretation.[8] That is so long as it’s not a form of originalism![9] But interpretative uniformity across the Court is neither likely nor desirable. As Professor Dworkin has noted:

[L]aw gains in power when it is sensitive to the frictions and stresses of its intellectual sources. Law would founder if the various interpretative theories in play in court and classroom diverged too much in any one generation.[10]

On the other hand, those who endorse originalism claim that progressivism ‘violate[s] the principles of democracy, the rule of law and federalism.’[11] Moreover, that its base-point principle, that we should not be controlled by the “dead hand of the past”, when taken to its logical conclusion ‘is really an argument against having a constitution’.[12] I have written elsewhere that these claims are probably erroneous and certainly overstated.[13] But more importantly, as my analysis will show, the debate has proven singularly uninstructive to the resolution of the constitutional cases considered by the Gleeson Court.

Secondly, one commentator suggests that ‘[w]hich side of the debate ultimately prevails...depends...on (and itself will influence) the Court’s conception of its own role.’[14] This presupposes that one theory should or will prevail, neither of which is likely or desirable as mentioned above. It also suggests that the nature of the Court’s constitutional function is to some extent at large. But the constitutional role of the Court is clear enough. It stems from covering clause 5 of the Constitution and the judicial oath sworn by each judge upon their appointment.[15] It involves the resolution of cases that raise issues regarding the meaning and operation of the Constitution ‘according to law without fear or favour, affection or ill-will’.[16] Judicial minds will differ as to the proper meaning and operation of the Constitution in the particular circumstances of a case but that is quite a different thing to saying the Court’s conception of its own constitutional role is fluid.

B Common ground

There appears to be broad agreement on the Gleeson Court ‘that questions of constitutional interpretation are not determined simply by linguistic considerations which pertained a century ago.’[17] Justice McHugh has said ‘that the relevant intention of the constitutional provisions is that expressed in the Constitution itself, not the subjective intentions of its framers or makers.’[18] Similarly, in a joint judgment in Brownlee, Gleeson CJ and McHugh J considered it appropriate for the Court to consider ‘the law and practice governing jury trials in the Australian colonies at the time of federation’ in order to determine the present scope of the s 80 guarantee. But they stressed that this inquiry was not undertaken for the purpose of pyschoanalysing the people who were involved in framing the Constitution. It was undertaken because the exercise upon which the Court was embarked involved ascertaining the meaning of an instrument which came into being in a certain manner, at a certain time, and for a certain purpose.[19]

Justice Kirby has stated in a number of recent cases and extra-curial commentary that the framers of the Constitution did not intend, nor did they enjoy the power to require, that their subjective expectations, wishes or hopes should control all succeeding generations of Australians who live under the protection of the Constitution.[20]

The constitutional jurisprudence of the Gleeson Court has made clear its rejection of what Professor Goldsworthy calls the ‘more extreme versions of originalism’[21] as an appropriate theory of constitutional interpretation. This method, championed by Justice Scalia of the United States Supreme Court, which states ‘that the Constitution has a fixed meaning, which does not change: it means today what it meant when it was adopted’ has failed to gain a foothold in Australian constitutional law.[22] In some respects, the rejection of strict originalism by the Gleeson Court simply endorses the important Mason Court decision in Cole v Whitfield. They said:

Reference to the history of s 92 may be made, not for the purpose of substituting for the meaning of the words used the scope and effect – if such could be established – which the founding fathers subjectively intended the section to have, but for the purpose of identifying the contemporary meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards federation from which the compact of the Constitution finally emerged.[23]

However, it might be worth noting the recent judgment of Callinan J in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd.[24] Though recognising that it was ‘unanimously put beyond doubt in Lange that there was an implied constitutional freedom of communication’,[25] his Honour stated that ‘I would not myself have reached the same conclusion.’[26] The subjective not merely objective intentions of the framers informed the reasoning of Callinan J:

[T]he authors of the Constitution were well aware of the First Amendment to the Constitution of the United States and most deliberately must have chosen not to incorporate such a provision in our Constitution....They saw no need for a constitutional provision to ensure freedom of political discourse. There was nothing novel in 1901 about democratically elected Parliaments.[27]

Though Justice Callinan’s comments are unlikely to represent a more general commitment to strict originalism in constitutional interpretation it may well indicate that he considers the subjective intentions of the framers to be highly relevant when the Court is invited to recognise new rights-based constitutional implications or expand the scope of those already existing.[28] Other members of the Gleeson Court may well agree.[29] Therefore, it seems likely that the originalism/progressivism debate may have some impact on this aspect of its constitutional jurisprudence. This important point will be addressed later in the article.

II THE INTERPRETATION OF CONSTITUTIONAL WORDS AND PHRASES ON THE GLEESON COURT

A The application of the connotation/denotation distinction

In Re Wakim, McHugh J stated that

[w]here the interpretation of individual words or phrases of the Constitution is in issue, the current doctrine of the Court draws a distinction between connotation and denotation or, in other words, between meaning and application.[30]

The distinction has been described in the following terms:

The words of the Constitution are to be read in that natural sense they bore in the circumstances of their enactment by the Imperial Parliament in 1900. That meaning remains...The connotation of words employed in the Constitution does not change though changing events and attitudes may in some circumstances extend the denotation or reach of those words.[31]

To define the connotation of a word or phrase the High Court must identify ‘the set of attributes to which the word referred in 1900, when the Constitution was enacted.’[32] According to Professor Goldsworthy it is a search for the ‘original, intended meaning’[33] of the word or phrase which largely depends on the ‘evidence of the founders’ intentions which in 1900 was readily available to their intended audience’.[34] In this respect, discovering what the framers intended, objectively or otherwise, is the crucial step in defining the connotation of a constitutional word or phrase.

However, it is respectfully submitted that a closer reading of the constitutional jurisprudence of the Gleeson Court suggests that the connotation/denotation distinction has not been widely used by the Court when asked to interpret constitutional words and phrases. Firstly, it is a technique whose philosophical underpinnings and practical utility has been rejected by Justice Kirby.[35] Secondly, and most importantly, the judgments of Gaudron J in Sue v Hill[36] and McHugh J in Re Patterson[37] represent the only two occasions where members of the Gleeson Court have expressly employed the connotation/denotation distinction to interpret a constitutional word or phrase. Moreover, in a series of recent cases where the Court has interpreted the following constitutional words and phrases – “matter”,[38] “prohibition”,[39] “patents of inventions”,[40] “State”,[41] “jury”,[42] “trial on indictment”,[43] “law of the Commonwealth”[44] and “offence”,[45] no member of the Gleeson Court has expressly employed the distinction.

It is also worth noting that even in Sue v Hill, the recent case celebre for the connotation/denotation distinction, Gaudron J was the only member of the Gleeson Court who appeared to employ it when considering whether the United Kingdom was a “foreign power” for the purposes of s 44(i) of the Constitution.[46] Though, to be sure, the judgment of McHugh J in Eastman clearly indicates that had he considered the issue in Sue v Hill he would have employed the distinction.[47] In addition, while Professor Goldsworthy acknowledges that the use of the connotation/denotation distinction in constitutional interpretation can be problematic, he considered its application in Sue v Hill to have been straightforward.[48] However, it is submitted that the joint majority judgment of Gleeson CJ, Gummow and Hayne JJ did not expressly apply the distinction in finding that the United Kingdom was a foreign power. They did quote with approval comments made by Windeyer J in Bonser v La Macchia regarding the emergence of Australia as a sovereign nation and that to now recognise that the United Kingdom was a foreign power was simply ‘an instance where “[t]he law has followed the facts”.’[49] But they did not cite any of the classic connotation/denotation authorities[50] nor did they seek to identify ‘the set of attributes to which the word referred in 1900’,[51] the precondition for applying the distinction. Indeed, as noted above, they quoted Windeyer J in Bonser v La Macchia but failed to mention or endorse explicit comments made in the same judgment regarding the connotation/denotation distinction.[52] Of course in failing to use the language of connotation and denotation does not mean that Gleeson CJ, Gummow and Hayne JJ did not in fact apply the distinction, Justice McHugh clearly thought they did.[53] But it does invite inquiry as to whether they might consciously have steered away from the language of connotation and denotation and if so then why.

It is submitted that one possible reason for Gleeson CJ, Gummow and Hayne JJ not using the language of connotation and denotation in Sue v Hill is that its proper application would have resulted in the United Kingdom not being considered a foreign power for the purposes of s 44(i). If the connotation of a constitutional term is ‘the set of attributes to which the word referred in 1900’ it is submitted that the essential attribute of the term “foreign power” was any sovereign State other than the United Kingdom. This logically follows as Australia had yet to emerge as a sovereign State in its own right. This conclusion does not depend on a psychoanalysis of the framers’ minds. It is simply what the phrase meant in 1900 in the context of its inclusion in the text of s 44(i) of the Constitution. To hold that the United Kingdom is now a foreign power for the purposes of s 44(i) is to change the connotation of that term. To be sure, if the connotation/denotation distinction is a mere linguistic device that can be applied to interpret a word or phrase isolated from its history and its constitutional context then of course the United Kingdom is a foreign power.

Professor Goldsworthy has implicitly acknowledged this point in relation to Sue v Hill. He has written that ‘[i]n non-technical language, the meaning of the words ‘foreign power’ has not changed, but the facts to which they applied have.’[54] But the whole point of the distinction is to provide a method for constitutional evolution while remaining faithful to the original, intended meaning of the framers. That original, intended meaning cannot be forsaken when the application of the distinction yields undesirable results. Consequently, the application of the connotation/denotation distinction is only straightforward in Sue v Hill when employed as a mere linguistic device. For these reasons it is respectfully submitted that Gaudron J incorrectly applied the distinction in Sue v Hill. In stating that what constitutes a ‘”foreign power” is an abstract concept apt to describe different nation States at different times according to their circumstances’,[55] Gaudron J has interpreted the phrase isolated from its history and its constitutional context. Unlike the distinction that Professor Dworkin has drawn between concepts and conceptions, the efficacy and proper application of the connotation/denotation distinction requires the identification of the concrete set of attributes to which a word referred at a precise moment in time as its core value is fidelity to the original, intended meaning of the framers.[56] The connotation of the phrase “foreign power” suggested by Gaudron J only holds if one betrays this core value. The issue, so far as the distinction is concerned, is not what the phrase might mean in a general or abstract sense but what the phrase did mean in 1900 in its constitutional context having regard to the original, intended meaning of the framers.

For the reasons I have just outlined, I would respectfully submit that McHugh J’s application of the connotation/denotation distinction in Re Patterson is similarly flawed. The problem for the application of the distinction in Re Patterson was the same faced by Gaudron J in Sue v Hill – trying to accommodate the fact of Australia’s emergence as a sovereign nation within a Constitution that created ‘one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland’.[57] That Australia has emerged as a sovereign nation is undeniable. But seeking to take account of this undeniable step in Australia’s legal evolution using an interpretative technique that begins with a search for the true meaning of constitutional words and phrases as they stood in 1900 was always going to be problematic. As McHugh J noted in Re Patterson:

In 1901, an “alien” for constitutional purposes was a person from another place who did not “bear true allegiance to her Majesty Queen Victoria, Her heirs and successors according to law”. The denotation of “alien” in 1901 included all persons who were not British subjects.[58]

In other words, the connotation and the denotation of “alien” in 1901 were the same. Of course this did not preclude the possibility of an “alien” in 1901 losing that status for the purposes of the Australian Constitution some time in the future or vice versa. For example, the denotation of “alien” necessarily changed when India and Canada declared their independence from the British Empire in 1948 and 1982 respectively. The prosecutor in Re Patterson would not have been considered an “alien” for constitutional purposes had the above connotation/denotation distinction been applied. But McHugh J was clearly aware that such an interpretation would have resulted in the extraordinary and unacceptable situation for a sovereign nation like Australia that no subject of the British Crown wherever situated in the world could be an “alien” for constitutional purposes. His Honour then documented the legislative developments in Australia that formally recognised ‘the changes that had occurred in the constitutional relations between the United Kingdom and Australia’[59] and the evolution of Australia into a sovereign nation:

Logically, it must follow that, upon the completion of the evolutionary process, the subjects of the Queen born and living in Australia became subjects of the Queen of Australia. Henceforth, by a mystical process, they owed their allegiance to the Queen of Australia, not the Queen of the United Kingdom.[60]

Therefore, for McHugh J, an “alien” is now for constitutional purposes a person who is not a subject of the Queen of Australia. No doubt the evolutionary process described by McHugh J is true as a matter of historical and legislative fact but such a process cannot change the connotation of “alien” as it was understood in 1900. New circumstances and developments can expand the denotation of a constitutional word or phrase but they cannot change their connotation. The judgment of McHugh J in Re Patterson is logically sound only if one employs the connotation/denotation distinction as a mere linguistic device rather than a technique whose core value is fidelity to the original, intended meaning of the framers. There may be methods of interpretation that can coherently explain the constitutional conundrum raised in both Re Patterson and Sue v Hill. But it is respectfully submitted that applying a distinction between the connotation and denotation of a word or phrase is not one of them.

Moreover, there may be a more serious objection to the use of the connotation/denotation distinction to interpret many of the words and phrases in the Constitution. A quick glance at those which the Gleeson Court have recently considered shows that most, if not all, these constitutional words and phrases are legal terms of art derived from the common law and statute.[61] To interpret these words and phrases by applying the distinction may in fact defeat the purpose or object for which they were included in the Constitution. The framers were intimately acquainted with the evolutionary nature of the common law. When they chose to include in the Constitution words and phrases possessing a rich pre-federation legal heritage it would be odd to suggest that the framers intended (subjectively or objectively) the essential meaning or connotation of these words and phrases to be frozen for all time in 1900. However, the proper application of the connotation/denotation distinction does exactly that. It depends on the identification of ‘the set of attributes to which [a] word referred in 1900, when the Constitution was enacted’.[62] Thereafter, as a matter of interpretative theory, the connotation of that word or phrase must remain static for ‘[w]e are not to give words a meaning different from any meaning which they could have borne in 1900.’[63] Ironically, the very reason why judges apply the connotation/denotation distinction in constitutional interpretation – fidelity to the original, intended meaning of the framers – is defeated when employed to interpret these kinds of constitutional words and phrases. It may in part explain why the constitutional jurisprudence of the Gleeson Court has been largely bereft of the language of connotation and denotation. Indeed, a number of recent judgments have recognised the in-built evolutionary capacity of the Constitution that is provided by these kind of words and phrases. They are legal terms of art whose meaning may be informed by developments in the common law and statute that are consistent with the text and structure of the Constitution. For example, in Truth About Motorways when considering the issue of standing in the context of what constitutes a “matter” for the purposes of Ch III, Gummow J said that

[a]t the time of the adoption of the Constitution, and with respect to a range of disputes which might thereafter attract federal jurisdiction, there was no single theory as to what always would be required to render competent the institution of proceedings by a particular party...All of this suggests the need for considerable caution in extrapolating to Ch III generally narrow rules of standing from the fields of public law under consideration: namely, where a statute was silent and equity intervened (a discourse which was still evolving in 1900) and the new field of judicial review for constitutional validity referred to above.[64]

In Aala, when Gaudron and Gummow JJ considered the proper scope of the writ of prohibition available under s 75(v) at the commencement of the Constitution, they stated that

[t]he law was in a state of development. The doctrinal basis for the constitutional writs provided for in s 75(v) should be seen as accommodating the subsequent development when it is consistent with the text and structure of the Constitution as a whole.[65]

In relation to the intellectual property rights available for protection in 1900 under s 51(xviii), the joint majority judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ in Grain Pool wrote that

[t]here were in 1900 unresolved issues respecting the interrelation of the various intellectual property regimes...Given these cross-currents and uncertainties in the common law and statute at the time of federation, it is plainly within the head of power in s 51(xviii) to resolve them. It also is within power...to determine that there be fresh rights in the nature of copyright, patents of invention and designs and trade marks.[66]

Similarly, in Brownlee, Gaudron, Gummow and Hayne JJ endorsed the following comments made by Professor A W Scott regarding the institution of trial by jury which they considered applicable to s 80:

In England there has been a wonderfully steady and constant development of trial by jury from the Conquest to the present day. In this country surely it was not, by the adoption of our constitutions, suddenly congealed in the form in which it happened to exist at the moment of their adoption.[67]

Provisional conclusion I

Professor Goldsworthy has examined some of the cases where the High Court has experienced problems with the application of the connotation/denotation distinction.[68] A consequence, no doubt, that ‘in many cases the connotation/denotation distinction can be very difficult, and perhaps in some cases impossible, to apply.’[69] For the issues that arise in these cases ‘are not resolvable by concentrating on this distinction. It does not provide a method for determining what was an essential feature of a term in 1900 or at any other time.’[70] Moreover, as I have attempted to show, the application of the distinction to interpret constitutional words and phrases that are legal terms of art is erroneous. For its core value, fidelity to the original, intended meaning of the framers, is betrayed when one freezes the meaning of these words and phrases in 1900.

It is submitted that the utility of the distinction is largely limited to the interpretation of non-technical constitutional words and phrases such as “lighthouses”[71] and “railways”.[72] The ‘set of attributes to which the[se] word[s] referred in 1900’[73] are readily ascertainable and uncontroversial. So too are their changing denotations. As Professor Goldsworthy has noted, ‘every time an old lighthouse is demolished, or a new one is built, the denotation of the term ‘lighthouse’ changes.’[74] But if the connotation/denotation distinction is philosophically problematic and of limited practical utility, it may be time to consign it to the dustbin of legal history. The recent jurisprudence of the Gleeson Court may suggest that such a process has already begun.

Before examining how the Gleeson Court has interpreted constitutional words and phrases in its recent jurisprudence, I will quickly restate the key points that have emerged so far.

The Gleeson Court does not consider ‘the more extreme versions of originalism’ to be appropriate for interpreting the Australian Constitution. The subjective intentions of the framers do not control modern constitutional meaning.

The application of the connotation/denotation distinction has been rarely used by the Gleeson Court to interpret constitutional words and phrases. In the judgments where it has been employed, I have argued that its use was inappropriate and its application flawed.

With the exception of Kirby J and to a lesser extent McHugh J, the members of the Gleeson Court are not committed to a particular theory of interpretation, at least not one which can be conveniently labelled as originalism or progressivism for example. This may in part reflect the view that no one theory can satisfactorily determine the diverse and complex issues that arise in constitutional cases.[75] But it may also indicate, as Sir Anthony Mason has suggested, ‘that judges are diffident about embracing a particular interpretative theory. For one thing, there is an apprehension about being locked in.’[76]

I have argued that the Gleeson Court has recognised that certain constitutional words and phrases are inherently capable of evolving as they are legal terms of art whose meaning may be informed by developments in the common law and statute that are consistent with the text and structure of the Constitution.

III THE INTERPRETATION OF CONSTITUTIONALISED LEGAL TERMS OF ART

The fact that the words and phrases interpreted by the Gleeson Court are legal terms of art contains an interesting paradox. Although their meanings were not frozen in 1900, their common law and statutory ancestry gives these terms an essential or core meaning that has usually been developed and refined over centuries of case law. In some instances, such as the institution of trial by jury contained in s 80, this legal heritage is over 500 years old. Consequently, though constitutional evolution may occur and indeed may sometimes be inevitable, it will necessarily be slow and considered. When coupled with the inherent conservatism of the common law method and considerations of stare decisis, that evolution is more likely to be principled and coherent.[77]

All of this is not to suggest that simply examining the state of the common law and statute law at federation and the developments that have occurred since then will yield principled and coherent interpretations of constitutional words and phrases. For once a word or phrase becomes constitutionalised its original legal status is transcended. It becomes part of a blueprint for government that is ‘notoriously difficult to amend by formal process [and]...is intended to operate indefinitely and in a fast-changing world.’[78] Consequently, so far as the text and structure of the Constitution permits, these words and phrases must be given a broad and purposive reading to recognise, amongst other things, the emergence of Australia as a sovereign nation and to accommodate the needs and aspirations of its citizens less our constitutional architecture petrify and fragment. Moreover and most importantly, these words and phrases take their place in a document that is rooted in and nourished by a range of constitutional principles such as the rule of law, responsible and representative government and the separation of judicial power. These principles underpin our Constitution and provide the context in which its words and phrases are interpreted. Indeed, the constitutional principles and values which inform the interpretative task assume an even greater significance in that process when it is recognised that the bulk of the disputes that now reach the High Court cannot be resolved by simple recourse to the constitutional text or the historical record. Increasingly, it is at this more conceptual level that constitutional cases are being decided. It has been the hallmark of the constitutional jurisprudence of the Gleeson Court to which I now turn.

A What constitutes a “matter” for the purposes of Ch III ?

The Gleeson Court has considered this question in three recent cases.[79] Each case raised a critical issue for the operation of the federal judiciary and its relationship with the other two arms of government. In Abebe the Court considered whether s 77 prohibited the Parliament from limiting the grounds upon which the Federal Court could determine a “matter”. In Truth about Motorways the respondent challenged the validity of ss 80 and 163A of the Trade Practices Act 1974 (Cth) in so far as they purported to confer standing on the applicant to commence the litigation. But the real issue in both cases was the extent to which the Commonwealth Parliament could legislatively control and define the jurisdiction of the federal judiciary, in particular the Federal Court, without offending Ch III of the Constitution. High constitutional stakes indeed in the context of the open enmity that has developed between the Federal Court and the Commonwealth Government regarding the interpretation of the Migration Act 1958 (Cth) in refugee applications. In Re McBain, the Court considered whether a claim in its original jurisdiction to certiorari for non-jurisdictional error of law on the face of the record in respect of concluded Federal Court litigation gave rise to a “matter”. But a more fundamental constitutional principle was again at stake - whether the Commonwealth Attorney General could ‘reopen closed litigation between other parties and to purge the record of the Federal Court of an order which is at odds with an allegedly desirable state of constitutional affairs’?[80]

These were novel constitutional questions for which satisfactory determinations could not be gleaned from diligent analysis of the constitutional text, past authorities and the historical record. To be sure, this analysis was at least a starting point. But what ultimately constituted a “matter” in each case was determined upon the consideration and reconciliation of a range of constitutional principles and values implicit in the term and its position in Ch III of the Constitution. For example, in Abebe the majority judges considered that prohibiting the Parliament from vesting federal jurisdiction in a Court unless that Court could dispose of the entire judicial controversy ‘would create immense practical problems for the administration of federal law’.[81] In particular, ‘it would deny the parliament the right to have specialist federal courts or courts whose jurisdiction was limited by reference to remedies, geographical areas or monetary limits.’[82] Therefore, the Constitution should be construed in a manner that avoided ‘irrational rigidities or seriously inconvenient outcomes’,[83] keeping in mind that it is ‘an instrument of government, not easily or readily amended, and intended to endure indefinitely.[84] For the majority judges, these enduring constitutional values outweighed any immediate inconvenience arising from such a conclusion. In particular, that ‘[i]t may indeed be inconvenient...that the legal controversy between Ms Abebe, the Commonwealth and various officers of the Commonwealth is potentially divided between different courts.’[85] On the other hand, the minority judges considered the indivisibility of a “matter” to be a necessary precondition for the proper exercise of the judicial power of the Commonwealth. They argued that if the Federal Court can quell only part of a judicial controversy then no final determination of an immediate legal right or liability can be made. It would involve a Ch III court in the exercise of a power other than the judicial power of the Commonwealth.[86] In addition, for Gummow and Hayne JJ, no lesser constitutional principle than the rule of law mandated that the Federal Court be able to quell an entire judicial controversy and much more, besides:[87]

To define the jurisdiction of a federal court to determine controversies with respect to those rights and liabilities by excluding grounds for relief which would otherwise would be available has the effect of restricting or denying the right or liability itself. This stultifies the exercise of the judicial power of the Commonwealth.[88]

Gaudron J also stated that ‘to construe s 77 as permitting parliament to confer jurisdiction in respect of part of a dispute...would be to enable parliament to subvert the efficacy of the integrated legal system established by Ch III.’[89] In the event the Court in a 4/3 decision found that:

Nothing in the terms of s 77 or Ch III of the Constitution requires the parliament to give a federal court authority to decide every legal right, duty, liability or obligation inherent in a controversy between subjects or between a subject and the Crown merely because it has jurisdiction over some aspect of the controversy.[90]

In crude terms, the principles of long-term constitutional flexibility and parliamentary supremacy had narrowly trumped arguments based on the rule of law and the separation of judicial power.

In Truth About Motorways the Court unanimously rejected ‘a criteria for standing which would restrict the means available to the parliament under s 76(ii) of the Constitution to enforce or induce by new remedies compliance with legislative norms of conduct.’[91] The principles of long-term constitutional flexibility and parliamentary supremacy were again prominent. For the Court, it was important not to interpret the word “matter” in a way that would ‘erode significantly the legislative powers of the Federal Parliament and... import a serious and unnecessary inflexibility into the Constitution.’[92] As the constitutional word “matter” and the notion of standing implicit in that word are legal terms of art, their meanings are inherently capable of evolving. Therefore as Gummow J noted in relation to standing, ‘it would be an error to attribute to this notion a fixed and constitutionally mandated content across the spectrum of Ch III.’[93]

In Re McBain, a majority of the Court considered the attempt of the Attorney-General to re-open concluded litigation between other parties did not give rise to a “matter” for constitutional purposes. Arguments based on the rule of law and the need to maintain the integrity of the judicial power of the Commonwealth were at the heart of these judges denying the constitutional competence of the Court to entertain such proceedings. Gaudron and Gummow JJ expressed the gist of these arguments in unequivocal terms:

Whether acting on relation or otherwise, the Attorney-General, consistently with Ch III, cannot have a roving commission to initiate litigation to disrupt settled outcomes in earlier cases, so as to rid the law reports of what are considered unsatisfactory decisions respecting constitutional law.[94]

The three “matter” cases highlight how the interpretation of a single, though no doubt important, constitutional term will often trigger a discourse regarding the fundamental principles and values that underpin not only that particular word but the Constitution more generally. These cases were in essence a debate as to the nature of the separation of judicial power effected by the Constitution. In particular, the Gleeson Court had the unenviable task of articulating with some specificity the point where legitimate legislative and executive action crosses the constitutional divide and becomes an unlawful interference with the jurisdiction of the federal courts guaranteed by Ch III of the Constitution. With the exception of Kirby J, it is also worth noting that the originalism/progressivism debate hardly rated a mention in the reasoning of the judges in Abebe, Truth About Motorways and Re McBain.[95] This is an important point to which I will later return.[96]

An interesting aside is that in all three cases the Gleeson Court agreed, at least in general terms, as to what constituted a “matter” for constitutional purposes. Most of the judges at some point in one or more of the cases cited with approval the following seminal passage from Re Judiciary and Navigation Acts:

[W]e do not think that the word ‘matter’ in s 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court.[97]

In other words, what is a “matter” for constitutional purposes was considered clear enough but what it required or directed in the particular circumstances of each case was disputed. To some extent the interpretative disagreements in Abebe and Re McBain echoed the distinction that Professor Dworkin has drawn between “concepts” and “conceptions”.[98] In simple terms, the distinction is between what something is (concept) and what it requires (conception). In other words, the judges in Abebe and Re McBain had different conceptions of the relevant constitutional concept. But this distinction does not take us very far. It provides an interpretative framework for constitutional decision-making and may explain in general terms some of the Gleeson Court’s constitutional work. The “matter” cases just examined and its recent s 80 jurisprudence are good examples.[99] But even in these areas it does little to isolate and explicate the real reasons for decision. That depends largely upon a judge’s own approach to constitutional interpretation. In particular, how each judge attempts to resolve the broad range of constitutional disputes that come to the Court in a manner which provides, so far as possible, a coherent reading of the principles and values that inform the text and underpin the structure of the Constitution.

B The emergence of Australia as a sovereign nation

As noted above, the emergence of Australia as a sovereign nation has provided the High Court with a constitutional conundrum – how to interpret a Constitution which created ‘one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland’[100] while recognising and seeking to accommodate the fact of Australia’s sovereign nation status ? I have earlier argued that the proper application of the connotation/denotation distinction cannot reconcile these apparently contrary propositions.[101] For Gleeson CJ, Gummow and Hayne JJ in Sue v Hill, recognising that the United Kingdom had become a “foreign power” for constitutional purposes in light of Australia’s emergence as a sovereign nation was ‘an instance where “[t]he law has followed facts’. It will be apparent that these facts, forming part of the “march of history”, received judicial notice.’[102] The key interpretative principle at work was the need for constitutional arrangements that are adaptable and enduring.[103] There was also a healthy dose of constitutional pragmatism, and for good reason. Failing to recognise the fact of Australia’s current constitutional arrangements would be to deny the fundamental changes made by several Acts of the Australian and United Kingdom Parliaments.[104] The judgment of Gleeson CJ, Gummow and Hayne JJ detailed these legislative developments and the fact they have been recognised by the common law in both countries. It was another important example of the developments that have occurred in the common law and statute informing the interpretation of our Constitution and providing the stimulus for its continued growth. Though Kirby J did not decide this point in Sue v Hill, he has made it clear in extra-curial writings that a progressive interpretation of the Constitution directs the conclusion that the United Kingdom is a “foreign power” for constitutional purposes.[105] But this is simply saying that the subjective intentions of the framers do not control modern constitutional meaning. A proposition accepted by the other members of the Gleeson Court in any event.[106] The material reason for Justice Kirby’s conclusion must then in fact be similar to the one that informed the judgment of Gleeson CJ, Gummow and Hayne JJ – recognising that the meaning of a constitutional phrase can evolve to reflect fundamental legislative changes since federation.[107]

The Court faced the same constitutional conundrum in Re Patterson when considering whether a British citizen who had permanently resided in Australia for over 35 years could be an “alien” for constitutional purposes. The judgments of Gleeson CJ and Gummow and Hayne JJ applied the principle which they enunciated in Sue v Hill and affirmed an earlier decision of the Court.[108] As the prosecutor in Re Patterson was a citizen of the United Kingdom, a foreign power, it made him an “alien” for constitutional purposes, capable of deportation.[109] On this point, it is respectfully submitted that their Honours conclusion was correct in principle and law though it may have operated harshly upon the relevant prosecutor. However, a majority of the Court held to the contrary.[110] I have earlier argued that the reasoning of McHugh J, one member of the majority, was flawed.[111] The other majority judges overruled the earlier decision (Nolan v Minister for Immigration and Ethnic Affairs) and stated that a non-citizen British subject who was permanently residing in Australia before the emergence of Australia as a sovereign nation was not an “alien” for constitutional purposes.[112] These judges endorsed the majority principle from Sue v Hill but argued the prosecutor fell outside its operation for belonging to this sui generis category of persons in Australia. A distinction was drawn between a non-citizen and an “alien” for constitutional purposes. It is submitted that the majority judges sought to reconcile the principle affirmed in Sue v Hill with a constitutional interpretation that did not operate harshly and unfairly upon the prosecutor and the other members of this sui generis category who had long ‘been absorbed amongst the people of the Commonwealth and accorded by them the full civil and political rights and duties of Australian nationality.’[113] It may have been a case of consistency of constitutional principle yielding to a just constitutional outcome. One that brings security and citizen-status to a not insubstantial group of long term “Australians”.

The diversity of reasoning evident in Re Patterson and to a lesser extent Sue v Hill highlights the difficulty if not impossibility of interpreting the Constitution to resolve this conundrum in a perfectly coherent manner. That the emergence of Australia as a sovereign nation would present unique problems for constitutional interpretation should come as no surprise. Elucidating coherent and enduring constitutional principle that is consistent with our unusual political and legal history is a vexing task. It appears that sometimes constitutional law, like other branches of the law, must indeed simply follow the facts.

C Section 80 of the Constitution

The Gleeson Court has considered the scope of the trial by jury guarantee in s 80 in three recent cases.[114] In Re Colina and Cheng the Court refused to dispense with established precedent and give s 80 a reading that would effectively guarantee a jury trial for all serious Commonwealth offences. The constitutional stakes were not as high in Brownlee. There the Court held that State legislation relevant to the trial of a Commonwealth offence which permitted jury separation during deliberation and a verdict to be delivered by a jury with less than 12 members did not offend s 80.[115] The cases had three interesting aspects.

First, the judgments in Re Colina and Cheng revealed some disquiet on the Gleeson Court about the state of the s 80 guarantee as it currently stands. The fact that the Parliament can control the scope of s 80 by choosing which Commonwealth criminal offences shall be triable on indictment reduces the constitutional guarantee to a ‘mere procedural provision’.[116] It seems that the righteous words of Sir Owen Dixon regarding such an interpretation of s 80 that ‘[t]here is high authority that “the Constitution is not to be mocked”’[117] still resonate to some degree on the Court. Notwithstanding this disquiet and that ‘constitutional guarantees are to be construed liberally and not pedantically confined’,[118] five members of the Court in both Re Colina and Cheng endorsed the orthodox s 80 position.[119] On the other hand, Kirby J, sought to revive s 80 as a meaningful constitutional guarantee. For example, in Re Colina, his Honour stated that a progressive reading of s 80 required that the trial of Commonwealth criminal offences punishable by more than 12 months imprisonment must be by jury.[120] I have argued elsewhere that such a reading falls on the wrong side of the line that divides constitutional interpretation from amendment.[121] In effect, it inserts the word “serious” into the text of s 80 so it would come to mean that the ‘trial of any serious offence against the law of the Commonwealth shall be by jury’. In any event, considering the unease that various members of the Gleeson Court have with the current s 80 orthodoxy and the emergence of some thoughtful academic commentary in the area, it would be a brave soul to suggest the final chapter on this ill-fated constitutional guarantee has been written.[122]

Secondly, it is submitted that some parallels exist between the manner in which the Court determined Brownlee and the three recent “matter” cases earlier discussed. The cases involved the interpretation of constitutional terms (“matter” and “jury”) which are legal terms of art. They possess a pre-federation legal heritage and their meaning continues to be informed by developments in the common law and statute that have occurred since 1900 which are consistent with the text and structure of the Constitution. In addition, the Gleeson Court was in broad agreement as to what in general terms a “matter” and “jury” is for constitutional purposes. For example, in Brownlee six of the seven judges cited with approval the unanimous decision of the Mason Court in Cheatle v The Queen.[123] In Cheatle the Court said:

The relevant essential feature or requirement of the institution was, and is, that the jury be a body of persons representative of the wider community. It may be that there are certain unchanging elements of that feature or requirement such as, for example, that the panel of jurors be randomly or impartially selected rather than chosen by the prosecution or the State. The restrictions and qualifications of jurors which either advance or are consistent with it may, however, vary with contemporary standards and perceptions. The exclusion of women and unpropertied persons was, presumably, seen as justified in earlier days by a then current perception that the only true representatives of the wider community were men of property.[124]

However, the resolution of the “matter” cases and Brownlee required an assessment as to what these constitutional terms directed or required in the circumstances of each case. In Dworkinian terms it was the “conception” of the trial by jury guaranteed by s 80 that was in issue. In Brownlee, the Court unanimously decided that a s 80 jury trial did not require a prohibition on jury sequestration and a verdict from a panel of 12. As in the “matter” cases, the Court arrived at its decision after weighing up a number of constitutional principles and values. Chief amongst these was the need to protect the integrity of the jury process and the purpose for which it was given constitutional status. ‘In particular...the objectives of independence, representativeness and randomness of selection...[and] the need to maintain the prosecution’s obligation to prove its case beyond reasonable doubt.’[125] These constitutional objectives were measured against or at least considered in the light of changes in the wider community regarding the proper treatment that should be accorded jurors and the trial process itself. For example, the fact that trials are now generally longer and more complex makes the loss of one or more jurors before a verdict is delivered not uncommon. These changes in community attitudes and the trial process had already been recognised in State legislation. In Brownlee, the Court adapted the Constitution to reflect these developments in the institution of trial by jury without compromising the essence of the s 80 guarantee. Once again the consideration and reconciliation of a range of constitutional principles and values was at the heart of the interpretative enterprise. Moreover, whether it was done consciously or not, for the reasons I have earlier outlined, the Court was correct not to apply the connotation/denotation distinction in Brownlee to interpret “jury” for the purposes of s 80.[126]

Thirdly, at least in terms of the ultimate decision in Brownlee, the relevance or otherwise of the framers’ intentions was not decisive. Kirby J stated that such intentions did not control modern constitutional meaning.[127] The other judges largely agreed but stated that a consideration of ‘the law and practice governing jury trials in the Australian colonies at the time of federation’[128] (which is not the same thing as seeking to ascertain the framers’ intentions) was an essential first step in the interpretative enterprise. They considered that ‘[a]n understanding of the context in which an instrument was written is ordinarily useful, and sometimes essential, for an understanding of its meaning.’[129] In any event, the decision in Brownlee was, as earlier mentioned, unanimous. It might suggest that one can overstate the importance of the current originalism/progressivism debate. As Brownlee seems to indicate, one’s view as to the relevance or otherwise of the framers’ intentions may be of little practical consequence to the resolution of many constitutional disputes. This conclusion leads me to the final point of my article.

IV THE ORIGINALISM / PROGRESSIVISM DEBATE ON THE GLEESON COURT

It is worth noting that only two members of the Gleeson Court, Kirby and McHugh JJ, have consistently and directly engaged in the originalism/progressivism debate in the course of their judgments and extra-curial writings. The former clearly advocates a progressive theory of constitutional interpretation while the latter a modern form of originalism, probably close to what Professor Goldsworthy calls “moderate originalism”.[130] The other members of the Court, while rejecting the notion that the subjective intentions of the framers controls modern constitutional meaning, consider that history, in particular the state of the law at the time of federation, can often provide instructive guidance as to the purpose of a constitutional provision or principle. Notwithstanding that only two judges are willing protagonists in the debate, the interpretation discourse has come to be dominated by, or degenerated into, a debate regarding the extent to which the framers’ intentions control modern constitutional meaning. That we have reached this point is not surprising. A similar debate has been raging in the United States for some time involving a range of high profile judges, constitutional lawyers and politicians. For the most part the battleground has been the interpretation of the open-ended provisions contained in the US Bill of Rights. Moreover, the judgments where Kirby and McHugh JJ have discussed the originalism/progressivism debate have been in some of the landmark constitutional decisions of recent times, Re Wakim being a notable example.[131] But these factors have tended to obscure the fact that the relevance or otherwise of the framers’ intentions has been decisive in very few, if any, of the constitutional cases decided by the Gleeson Court. This is not to suggest that the originalism/progressivism debate is anachronistic, illusory or worthless. It simply recognises that its importance can and probably has been overstated in the constitutional jurisprudence of this Court. It is but one consideration or constitutional value that can be relevant to the resolution of a constitutional dispute. In many cases it is a threshold question which ultimately gives way to a deeper constitutional discourse that, as my analysis has shown, will often involve the consideration and reconciliation of a range of constitutional fundamentals such as the separation of powers, the rule of law, federalism and parliamentary supremacy to name a few.

For example, at first blush, it would appear decisive in Re Wakim that Kirby J strongly advocated progressivism as the preferred method of constitutional interpretation and was the lone dissentient. This is particularly so when one considers these comments made in the same case by McHugh J:

[T]he function of this Court, is to give effect to the intention of the makers of the Constitution as evinced by the terms in which they expressed that intention. That necessarily means that decisions, taken almost a century ago by people long dead, bind the people of Australia today even in most cases where most people agree that those decisions are out of touch with the present needs of Australian society.[132]

But, neither the constitutional text or the convention debates gave any clear direction as to whether a legislative scheme which vests state judicial power in a federal court would offend Ch III of the Constitution. Even if they did, Kirby J would eschew their relevance. So, notwithstanding the appearance of a fundamental conflict, both judges had to look elsewhere in order to resolve the controversy. The originalism/progressivism debate gave no instructive guidance. Again, what proved decisive was how each judge reconciled a number of competing constitutional principles and values. A rigid conception of the separation of the federal judicial power was at the heart of the majority reasoning. This deprived the States of the legislative power which they purported to exercise in the cross-vesting scheme as ‘no amount of cooperation can supply power where none exists.’[133] For these judges, though cooperative federalism was desirable and to be encouraged it could not come at the expense of constitutional principle.[134] Kirby J agreed, but found no negative implication in Ch III (constitutional principle) which would prohibit such a cooperative legislative scheme.[135] The case ultimately turned on different conceptions of the separation of judicial power and the nature of the federal system created by the Constitution.[136]

These two constitutional principles, amongst others, were again to the fore in Re The Governor, Goulburn Correctional Centre; Ex parte Eastman[137] when the Court considered the perplexing issue of the relationship between s 122 and Ch III of the Constitution. In particular, whether the tenure provisions in s 72 applied to judges of the territory courts. In a dissenting judgment, Kirby J held that they did. His Honour argued that past authority to the contrary was founded upon ‘an erroneous assumption that the meaning of the Constitution is governed by what the framers would have held it to mean.’[138] It is reasonable to assume he would say the same about the reasoning of the majority judges.[139] But, it is respectfully submitted that such considerations were not central to their reasoning and certainly not decisive of the issue. For one thing, Gaudron J, whom but for considerations of stare decisis would have joined Kirby J in dissent, failed to make any mention of the originalism/progressivism debate. Her Honour simply stated that ‘[a]s a matter of ordinary language, the words “created by the Parliament” in s 72 are apt to include a court created by the Parliament pursuant to s 122.’ The other majority judges considered the contrary conclusion was ‘open on the language, and produces a sensible result, which pays due regard to the practical considerations arising from the varied nature and circumstances of territories.’[140] But it was an unwillingness to disturb two unanimous decisions of the Court that proved decisive. They saw no material difference between the present case and the ‘[t]he decision in Spratt v Hermes [which] was unanimously affirmed and applied in Capital TV and Appliances Pty Ltd v Falconer[141]. It was precedent not originalism which informed their reasoning. Kirby J overruled this past authority.[142] But a progressive interpretative theory did not direct such a course. It was the combination of a number of constitutional principles which informed his decision, most importantly, that the Constitution be read ‘as a coherent instrument for the government of the Australian federation and not as two Constitutions – one for the federation and the other for its territories.’[143]

The later but related case of Eastman[144] was, at least in terms of the instructiveness of the originalism/progressivism debate, almost a carbon copy of the Re The Governor; Ex parte Eastman decision. Kirby and McHugh JJ once again locked interpretative horns and devoted part of their judgments defending progressivism and a modern form of originalism respectively.[145] McHugh J joined Gleeson CJ, Gaudron, Gummow and Hayne JJ in holding that an “appeal” from a federal court under s 73 of the Constitution to the High Court did not permit the reception of new evidence. Kirby and Callinan JJ dissented. Certainly, McHugh J considered to be crucial the fact that ‘[w]hen the Constitution was enacted in 1900, a grant of appellate jurisdiction was not seen as carrying with it a power to receive further evidence.’[146] Kirby J again rejected such an approach and found to the contrary.[147] But for the reasons I have earlier outlined, one might consider the approach of McHugh J to be erroneous because in effect it freezes the meaning of a constitutionalised legal term of art in 1900. On the other hand, the rejection of such an approach by Kirby J only took him so far. It was at most a threshold issue that did not direct a particular conclusion. The substantive reasoning which informed his judgment was built upon other, more fundamental principles and values. Kirby J could not accept a reading of the Constitution that denied the High Court the power in its appellate jurisdiction to receive new evidence in order to correct an earlier legal injustice.[148] A similar conception of justice and the Court’s duty to deliver that elusive result where constitutionally possible informed the dissent of Callinan J.[149] This constitutional principle also underpinned the text-based argument regarding s 73 proffered by both dissenters.[150] The progressivism of Kirby J may not have been inconsistent with his decision but it clearly did not direct it. In the same way, it was not originalism but the endorsement of a recent decision of the Court that ‘stands in an unbroken line of authority of long standing’[151] and the correctness of the constitutional principle it embodied that was decisive for the other majority judges. As Gaudron J noted:

In Mickelberg v The Queen, this Court affirmed its earlier decisions that s 73 of the Constitution does not authorise the reception of fresh evidence on appeal. The decision in Mickelberg was not based on any conception as to nature of an appeal as at 1900, although that was a matter referred to by Mason CJ. The basis of the decision was the distinction between this Court’s original and appellate jurisdiction, original jurisdiction being conferred by s 75 and pursuant to s 76 of the Constitution, whilst appellate jurisdiction is conferred by s 73.[152]

The originalism/progressivism debate has not proved terribly instructive or decisive in the cases where the Gleeson Court has interpreted constitutional words and phrases. This has much to do with the fact that most of these cases concerned legal terms of art. Though, as I have suggested earlier in the article, the framers’ intentions may be relevant to the extent that in choosing to constitutionalise these terms their meanings were not to be frozen in 1900.[153] Kirby J would probably not frame it in these terms. His Honour would view it simply as an example of the interpretative principle that ‘common law principles and doctrines can be used to give content to, and to control the understanding of constitutional notions.’[154] In any event, the effect on constitutional interpretation is the same. It simply recognises that to trace the history of a legal word or phrase, including how it was understood at federation, is an important first step in elucidating its modern constitutional meaning. It provides a historical context. Moreover, it explains how the meaning of constitutional words and phrases can evolve over time and why the application of the connotation/denotation distinction, whose core value is fidelity to the original, intended meaning of the framers, is an erroneous way of interpreting this species of constitutional terms.

The decisions of the Gleeson Court in Grain Pool, Aala and most recently SGH Limited are good examples. In Aala, Gaudron and Gummow wrote:

The phrase “a writ...of prohibition” has no meaning other than as a technical legal expression. The same is true of the term “patents of invention” in s 51(xviii) which was construed in Grain Pool (WA) v Commonwealth. An appreciation of the essential characteristics of such an expression is assisted by an examination that involves legal scholarship in preference to intuition or divination. The examination appropriately may include the understanding of that expression at the time of the commencement of the Constitution and thereafter.[155]

The majority judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ in Grain Pool evinced such an approach. It was evident in these comments regarding the uncertain interrelationship between the different intellectual property rights in 1900:

Given the cross-currents and uncertainties in the common law and statute at the time of federation, it is plainly within the head of power in s 51(xviii) to resolve them. It is also within power...to determine that there be fresh rights in the nature of copyright, patents of inventions and designs and trademarks.[156]

Not surprisingly, as Geraldine Chin has noted, the proper application of the connotation/denotation distinction cannot satisfactorily explain the Grain Pool decision.[157] Kirby J reached the same conclusion as the joint majority judgement but felt obliged to write a separate judgment to distinguish himself from ‘the other members of [the] court [who] repeatedly referred to the consideration of the ambit of “patents of invention” in 1900.’[158] He did so to dispel any notion that such ‘consideration[s] be thought to control, or even significantly to influence, the contemporary meaning of the constitutional words’.[159] But, as the quote from the joint judgment extracted above clearly indicates, the reference to the history of “patents of invention”, including its meaning at 1900, was not done for this reason. It simply recognised the legal ancestry of the constitutional phrase and that the scope of the power was not fixed at federation. Far from signalling a commitment to originalism, the joint judgment expressly stated that the determination of fresh intellectual property rights was within the power granted by s 51(xviii). In this regard, constitutional history is an ongoing narrative not simply a snapshot of the state of the law in 1900. It provides context not an interpretative straightjacket.

Moreover, it is respectfully submitted that the same constitutional principle was at the heart of the reasoning of both Kirby J and the joint majority judgment. The originalism/progressivism debate was more apparent than real, and certainly not decisive. Indeed, both judgments expressly endorsed the approach employed by Higgins J in his dissent in the Union Label case [160] as the appropriate method for interpreting s 51(xviii).[161] This interpretative approach emphasises that the Constitution is an extraordinary law, one that must endure indefinitely and adapt to a constantly changing world. In particular, the legislative powers granted to the Parliament must be read with this in mind. It was the need to adapt the Constitution, so far as its text and structure permitted, to equip the Parliament with the legislative means to accommodate new discoveries in science and technology which was the principle that underpinned the reasoning of both judgments.[162] When one gets beyond the interpretative rhetoric in Grain Pool it is submitted that the real reasons for decision of Kirby J and the joint majority judgment are strikingly similar.

Most recently, the originalism/progressivism debate appeared to be decisive in SGH Limited.[163] Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ (Kirby J dissenting) held that SGH was not the “State” for the purposes of s 114 of the Constitution. The joint judgment of Gleeson CJ, Gaudron, McHugh and Hayne JJ stated that

the present matter proceeded from an acceptance of what was said in the State Bank Case and it is, therefore, unnecessary to embark upon the troubled waters of more general questions about the preferable approach to constitutional interpretation.[164]

In reply, Kirby J said

I hold to the other way. It is a serious mistake, in my opinion, to attempt to construe any provision of the Constitution, including a prohibition such as that contained in s 114, from a perspective controlled by the intentions, expectations or purposes of the writers of the Constitution in 1900.[165]

I agree, but for the reasons I have earlier outlined - that the meaning of constitutionalised legal terms of art were not (intended) to be frozen in 1900. But the statement of the joint majority quoted above was not implicitly endorsing originalism as the appropriate method for interpreting s 114 as the rest of the judgment clearly indicates. To the contrary, they expressly noted that the State Bank Case[166] had rejected the contention that s 114 should be construed in manner that accorded with its meaning at the time the Constitution was enacted.[167] Such an interpretative approach to s 114 would be more likely to frustrate than to achieve the attainment of its object, namely, the protection of the property of the Commonwealth and the States from the imposition of taxation by each other in the interests of their respective financial integrity.[168]

The case boiled down to the majority judges making a different assessment of the relevant facts to Kirby J regarding the extent to which the State of Queensland owned and controlled SGH and the purposes for which the corporation was established. The majority judges considered it decisive that the ‘objects of SGH did not include any reference to advancing any interests of the State’[169] and ‘there was no provision in the rules of SGH, or its governing statute, that it should pursue the interests of the State or the public or that its policies could be determined by the executive government.’[170] In addition, Suncorp (accepted to be the State of Queensland for s 114 purposes) though exclusive holder of one class of shares in SGH Limited, ‘did not control SGH; it shared control with the “A” class shareholders.’[171] Thus, ‘It follows that the control of SGH...was hedged about by the obligation not to disregard the interests of persons other than the State.’[172]

Kirby J noted that his contrary views on these issues were ‘the essence of my difference from the majority’ but stated that it had ‘its origin in the approach that I take to constitutional interpretation.’[173] In particular, the recognition of the expanded scope of governmental activities in modern times and the need for the Constitution to adapt where possible to these changes. But this interpretative principle, which emphasises the importance of and need for constitutional adaptability, is orthodox constitutional doctrine for the Gleeson Court as my examination of its jurisprudence has shown. It is not synonymous with progressivism or any other theory or approach to constitutional interpretation. Moreover and more importantly, it shed little meaningful light on the specific question which arose for adjudication in SGH Limited. What truly informed the broad operation given to the s 114 prohibition by Kirby J was his strong view as to its pivotal role in securing a harmonious federation. In particular, that a broad reading was necessary to protect the financial integrity and independence of the constituents of the Australian federation.[174] The joint judgment of Gleeson CJ, Gaudron, McHugh and Hayne JJ also acknowledged this point.[175] But these federalism concerns did not change the fact that for these judges the State of Queensland did not wholly own or control SGH and as such SGH was not the “State” for the purposes of s 114.

Provisional Conclusion II

It is submitted that the originalism/progressivism debate has not been decisive in the constitutional jurisprudence of the Gleeson Court. This is in part due to the nature of the constitutional disputes that the Court has considered and the manner in which those disputes have been resolved. The cases have mostly involved the interpretation of words and phrases that are legal terms of art. As my analysis has shown, the relevance or otherwise of the framers’ intentions is of little import to the task of ascertaining the modern constitutional meaning of these kinds of terms. In addition, and possibly a related point, is the declining use on the Gleeson Court of the connotation/denotation distinction to interpret constitutional words and phrases. The declining use of an interpretative technique whose core value is fidelity to the intentions of the framers may also partly explain why the originalism/progressivism debate has not been central to the constitutional reasoning and decision-making of the Court.

This is not to suggest that the debate is irrelevant to the interpretation of the Constitution.[176] But its relevance will depend on the individual circumstances of a case and the nature of the constitutional issue(s) to be determined. For one thing, the debate is unlikely to be as pervasive or ‘fierce in Australia as it has been...in the United States’.[177] As Professor Craven has pointed out:

The originalism debate in the United States has largely been fought over the interpretation of the Bill of Rights, with its broad, sweeping guarantees of fundamental human rights. It is in this highly emotive context, the stalking-ground of rights to abortion and to freedom from racial discrimination, that the performance of the Supreme Court has been vilified or defended according to the stance of commentators upon the question of original intent. The Australian Constitution does not include a bill of rights, and so the High Court has not been called upon to deploy its interpretative armory in so controversial a field.[178]

Yet, for example, most judges would probably consider the debate to be of significant relevance to the determination of a future case that squarely raised the issue of whether the race power would support a racially discriminatory law.[179] Likewise, the capacity of the Commonwealth Parliament to legislate for same-sex marriages.[180] Although, as “marriage” is a constitutionalised legal term of art, I would argue that its interpretation should not depend on the relevance or otherwise attributed to the framers’ intentions. But the debate is likely to be prominent in any future attempts to discover/reject new rights-based constitutional implications or expand the scope of those already existing.[181] The derivation of constitutional implications from the separation of judicial power and the rule of law would seem the most likely candidates. [182] In other areas the Gleeson Court has not been afraid to entertain the notion of implying constitutional principle. Most notably whether s 118 constitutionally entrenches a common law choice of law rule.[183] But this probably reflects the Court’s confidence that judicial activity in these technical legal areas will not attract the kind of political and public criticism that attends the discovery of rights-based implications.[184] On the other hand, the originalism/progressivism debate is unlikely to prove decisive in future controversies involving the interpretation of at least two of the express rights in the Constitution, ss 51(xxxi) and 80. For the scope of these rights turns on the meaning ascribed to words and phrases that are legal terms of art – “property”, “trial on indictment”, “offence”, “law of the Commonwealth” and “jury”. As my analysis of the recent s 80 jurisprudence of the Gleeson Court in this article and elsewhere bears out, that meaning owes more to developments in the common law and statute since federation than the relevance or otherwise attributed to the framers’ intentions.[185]

V CONCLUSION

This article has examined the constitutional jurisprudence of the Gleeson Court and tried to identify and explain the reasons which been decisive in its decision-making. The cases considered have shown that the complex nature of the issues that have arisen for determination have required the Court to engage with and reconcile a range of often competing constitutional principles and values. These have included the separation of powers (in particular the separation of judicial power), the rule of law, federalism, considerations of stare decisis and the emergence of Australia as a sovereign nation. The cases have highlighted the rich tapestry of constitutional principle that underpins many constitutional words and phrases, in particular those with a legal heritage. Their interpretation is a multi-layered task and one for which the text and structure of the Constitution alone provides little meaningful guidance.

Moreover, with the retirement of Justice Gaudron to take effect in February 2003 the first phase of the Gleeson Court will come to a close. In the normal course of events the second phase of the Gleeson Court will run until November 2005 when Justice McHugh is due to retire. This means that seven of the eight current judges on the High Court will serve together for a period of over seven years. It is a substantial length of time that provides the Gleeson Court with an opportunity to make a significant contribution to the development of constitutional principle. Already the Court has left a significant mark on our constitutional law. In particular, its strict reading of Ch III of the Constitution has delivered significant and sometimes controversial results.[186] In addition, the flood of immigration-related cases reaching or indeed beginning in the High Court shows no sign of abating. These disputes have forced the Court to grapple with the fundamental and politically charged issue regarding the extent to which the Parliament can restrict the ability of the federal judiciary to review immigration decisions of the executive government.[187] They have also triggered a detailed exploration of the scope of the constitutional writs in s 75(v).[188] A discourse which is likely to continue for some time and will have significant ramifications for the efficiency and accountability of administrative decision-making in Australia, not to mention its possible impact on the relationship between the Commonwealth and the federal judiciary.[189]

In closing, it is submitted that a close reading of the constitutional cases considered by the Gleeson Court has shown that a judge’s view as to the relevance or otherwise of the framers’ intentions has not been the decisive factor in their decision-making. As earlier noted, this has been due to the nature of the controversies that have arisen for adjudication and the manner in which the different judges have resolved them. The originalism/progressivism debate is just one of the many constitutional principles and values that may be relevant to resolution of complex constitutional disputes.

It may explain why Gummow J in SGH Ltd sought to pour a little cold water on the fanning flames of the debate. He said:

Questions of construction of the Constitution are not to be answered by the adoption and application of any particular, all-embracing and revelatory theory or doctrine of interpretation. Nor are they answered by the resolution of a perceived conflict between rival theories, with the placing of the victorious theory upon a high ground occupied by the modern, the enlightened and the elect. The provisions of the Constitution, as an instrument of federal government, and the issues which arise thereunder from time to time for judicial determination are too complex and diverse for either of the above courses to be a satisfactory means of discharging the mandate which the Constitution itself entrusts to the judicial power of the Commonwealth.[190]

His Honour went on to say that

questions of constitutional interpretation are not determined simply by linguistic considerations which pertained a century ago. Nevertheless, those considerations are not irrelevant; it would be to pervert the purpose of the judicial power if, without recourse to the mechanism provided by s 128 and entrusted to the Parliament and the electors, the Constitution meant no more than what it appears to mean from time to time to successive judges exercising the jurisdiction provided for in Ch III of the Constitution.[191]

In rejecting the notion that one theory of interpretation can satisfactorily resolve the varied and complex spectrum of constitutional issues that arise before the High Court for determination, Justice Gummow may well have articulated the general approach to constitutional interpretation favoured by the Gleeson Court. Such an approach also recognises the fact that ‘[m]uch depends upon the particular question to be resolved and the concatenation of factors which may be relevant to it.’[192] The more fundamental and difficult task for each judge is to resolve constitutional cases in a manner that provides as far as possible a coherent interpretation of the principles and values that underpin the text and structure of the Constitution.


[*] Lecturer, School of Law, Deakin University.

[1] The members of the Gleeson Court are Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.

[2] A selection of the extra-curial and academic commentary includes Greg Craven, ‘Original Intent and the Australian Constitution – Coming Soon to a Court Near You ?’ (1990) 1 Public Law Review 166; Sir Daryl Dawson, ‘Intention and the Constitution – Whose Intent ?’ (1990) 6 Australian Bar Review 93; Jeffrey Goldsworthy, ‘Originalism in Constitutional Interpretation’ [1997] FedLawRw 1; (1997) 25 Federal Law Review 1; Jeremy Kirk, ‘Constitutional Interpretation and a Theory of Evolutionary Originalism’ (1999) 27 Federal Law Review 323; Justice Michael Kirby, ‘Constitutional Interpretation and Original Intent: A Form of Ancestor Worship ?’ [2000] MelbULawRw 1; (2000) 24 Melbourne University Law Review 1; Mirko Bagaric, ‘Originalism: Why Some Things Should Never Change – Or at Least Not Too Quickly’ [2000] UTasLawRw 7; (2000) 19 University of Tasmania Law Review 173; Jeffrey Goldsworthy, ‘Interpreting the Constitution in its Second Century’ [2000] MelbULawRw 27; (2000) 24 Melbourne University Law Review 677; Dan Meagher, ‘New Day Rising ? Non-Originalism, Justice Kirby and s 80 of the Constitution(2002) 24 Sydney Law Review 141.

[3] [1988] HCA 18; (1988) 165 CLR 360.

[4] Brownlee v The Queen [2001] HCA 36; (2001) 180 ALR 301, 333. (‘Brownlee’)

[5] In particular see the judgments of McHugh J in Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511, 549-554 (‘Re Wakim’); Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, 41-51 (‘Eastman’); Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 182 ALR 657, 682-686 (McHugh J). (‘Re Patterson’).

[6] See SGH Limited v Commissioner of Taxation [2002] HCA 18 (Unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 1 May 2002) [40]-[44] (Gummow J). (‘SGH Limited’)

[7] Kirby, above n 2, 1.

[8] See Eastman [2000] HCA 29; (2000) 203 CLR 1, 81 (Kirby J).

[9] See for example comments of Kirby J in Grain Pool of Western Australia v Commonwealth [2000] HCA 14; (2000) 202 CLR 479, 522-525 (‘Grain Pool’); Eastman [2000] HCA 29; (2000) 203 CLR 1, 79-81; Brownlee [2001] HCA 36; (2001) 180 ALR 301, 332-338.

[10] Ronald Dworkin, Law’s Empire (1986) 88-89.

[11] Goldsworthy, ‘Interpreting the Constitution in its Second Century’, above n 2, 690.

[12] Goldsworthy, ‘Originalism in Constitutional Interpretation’, above n 2, 27.

[13] See Meagher, above n 2, 148-155.

[14] Gim Del Villar, ‘Originalism’ in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 514.

[15] The relevant part of covering clause 5 of the Australian Constitution states – ‘This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State’. Section 11 of the High Court of Australia Act 1979 (Cth) requires a person upon appointment to the High Court to take the following judicial oath: I do swear that I will bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law, that I will well and truly serve Her in the Office of (Chief) Justice of the High Court of Australia and that I will do right to all manner of people according to law without fear or favour, affection or ill-will. So help me God !

[16] Ibid.

[17] SGH Limited [2002] HCA 18 (Unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 1 May 2002) [44] (Gummow J).

[18] Eastman [2000] HCA 29; (2000) 203 CLR 1, 46.

[19] Brownlee 304.

[20] R v Cheng (2000) CLR 248, 321. (‘Cheng’)

[21] Golsworthy, ‘Originalism in Constitutional Interpretation’, above n 2, 1.

[22] Although this largely represents the approach advocated by Mirko Bagaric – see Bagaric, above n 2, 200-204. It is also according to Justice Kirby the only alternative method of constitutional interpretation to progressivism as he considers a “hybrid approach” such as moderate originalism to be “intellectually incoherent” – see Brownlee 334.

[23] [1988] HCA 18; (1988) 165 CLR 360, 385 (per curiam).

[24] (2002) 185 ALR 1. (‘Lenah Meats’)

[25] Ibid 97.

[26] Ibid.

[27] Ibid 97-98.

[28] In addition, Callinan J expressed concern with the evolutionary approach of the majority justices in Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 – see his Honour’s comments at 730-732.

[29] For example Chief Justice Gleeson has written extra-curially that ‘all Australians are controlled, not only by what the founders said in their written document, but also, and perhaps even more comprehensively, by what they did not say...Silence, whether deliberate or not, binds us conclusively. Concern about how much importance attaches to what the founders meant to say may be trivial compared to the importance of the subjects that they left untouched.’ – Chief Justice Murray Gleeson, The Rule of Law and the Constitution (2000) 56; For a discussion on the cases that the Gleeson Court has refused special leave to appeal which may have provided it with the opportunity to further expand the scope of the implied freedom of political communication see George Williams, ‘Implied Rights Under the Gleeson Court’ (1999) 2(3) Constitutional Law and Policy Review 45-46.

[30] Re Wakim [1999] HCA 27; (1999) 198 CLR 511, 551.

[31] King v Jones [1972] HCA 44; (1972) 128 CLR 221, 229 (Barwick CJ).

[32] Gim Del Villar, ‘Connotation and Denotation’ in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 135.

[33] Goldsworthy, ‘Originalism in Constitutional Interpretation’, above n 2, 19.

[34] Ibid 20.

[35] See for example Kirby, above n 2, 13; Eastman [2000] HCA 29; (2000) 203 CLR 1, 80-81.

[36] [1999] HCA 30; (1999) 199 CLR, 462, 693-694.

[37] [2001] HCA 51; (2001) 182 ALR 657, 681-685.

[38] Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 (‘Abebe’); Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591 (‘Truth About Motorways’); Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 188 ALR 1 (‘Re McBain’).

[39] Re Refugee Review Tribunal and Another; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82. (‘Aala’)

[40] Grain Pool [2000] HCA 14; (2000) 202 CLR 479.

[41] SGH Limited [2002] HCA 18 (Unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 1 May 2002).

[42] Brownlee [2001] HCA 36; (2001) 180 ALR 301.

[43] Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386 (‘Re Colina’); Cheng [2000] HCA 53; (2000) 203 CLR 248.

[44] Re Colina [1999] HCA 57; (1999) 200 CLR 386.

[45] Cheng [2000] HCA 53; (2000) 203 CLR 248.

[46] Cf McHugh J in Eastman [2000] HCA 29; (2000) 203 CLR 1, 45 where his Honour stated that the Court in Sue v Hill ‘held that the denotation of “foreign power” in s 44 of the Constitution now includes the United Kingdom although that country was not a foreign power in 1900.’

[47] Ibid.

[48] Goldsworthy, ‘Interpreting the Constitution in its Second Century’, above n 2, 695.

[49] Sue v Hill [1999] HCA 30; (1999) 199 CLR 462, 663.

[50] For example see R v Commonwealth Conciliation and Arbitration Commission; Ex parte Association of Professional Engineers [1959] HCA 47; (1959) 107 CLR 208, 267 (Windeyer J); King v Jones [1972] HCA 44; (1972) 128 CLR 221, 229 (Barwick CJ); Nolan v Minister for Immigration [1988] HCA 45; (1988) 165 CLR 178, 186 (Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ).

[51] Del Villar, ‘Connotation and Denotation’, above n 32, 135.

[52] The judgment of Gleeson CJ, Gummow and Hayne JJ did not cite the following passage of Windeyer J from Bonser v La Macchia [1969] HCA 31; (1969) 122 CLR 177, 230 -‘Doubtless the words of a Constitution should be given the meaning that they had when it was enacted as a statute of the Imperial Parliament. But that does not mean that its words can now denote only what they then denoted, or that we are to ignore the fact that they appear in an instrument of government for a new nation then called into being.’ (emphasis added) Moreover, it is submitted that the use of “or” by Windeyer J in the above passage suggests there is a difference between the connotation/denotation distinction and the fact that these words ‘appear in an instrument of government’. The judgment of Gleeson CJ, Gummow and Hayne JJ appeared to endorse only the latter.

[53] See above n 46.

[54] Goldsworthy, ‘Interpreting the Constitution in its Second Century’, above n 2, 694. (emphasis added)

[55] [1999] HCA 30; (1999) 199 CLR 462, 692.

[56] As Professor Dworkin has noted, ‘the distinction between concept and conception...is very different from the more familiar distinction between the meaning of a word and its extension...[it] is interpretive not semantic; it is not a claim about linguistic ground rules everyone must follow to make sense. Nor is [it] timeless: it holds in virtue of a pattern of agreement and disagreement that might...disappear tomorrow.’ – Dworkin, above n 10, 71. (emphasis added)

[57] Australian Constitution covering clause 5.

[58] [2001] HCA 51; (2001) 182 ALR 657, 683.

[59] Ibid 686 quoting from the judgment of Gibbs J in Theosophy Inc v South Australia [1979] HCA 59; (1979) 145 CLR 246, 261.

[60] Ibid 686-687.

[61] See above n 38-45.

[62] Del Villar, ‘Connotation and Denotation’, above n 32, 135.

[63] R v Commonwealth Conciliation and Arbitration Commission; Ex parte Association of Professional Engineers [1959] HCA 47; (1959) 107 CLR 208, 267 (Windeyer J).

[64] Truth About Motorways Pty Ltd [2000] HCA 11; (2000) 200 CLR 591 629 (emphasis added).

[65] Aala [2000] HCA 57; (2000) 204 CLR 82, 97.

[66] [2000] HCA 14; (2000) 202 CLR 479, 500-501. These comments appear to be consistent with the application of the connotation/denotation distinction but see Geraldine Chin, ‘Technological Change and the Australian Constitution(2000) 24 Melbourne University Law Review 631-634.

[67] Brownlee [2001] HCA 36; (2001) 180 ALR 301, 309 citing from ‘Trial by Jury and the Reform of Civil Procedure’ (1918) 31 Harvard Law Review 669, 669-670; Gleeson CJ and McHugh J made similar comments at 305.

[68] See Goldsworthy, ‘Originalism in Constitutional Interpretation’ above n 2, 1-8.

[69] Ibid 32.

[70] Leslie Zines, ‘Characterisation of Commonwealth Laws’ in H P Lee and George Winterton (eds) Australian Constitutional Perspectives (1992) 35.

[71] Australian Constitution s 51(vii).

[72] Ibid s 51(xxxii).

[73] Del Villar, ‘Connotation and Denotation’, above n 32, 135.

[74] Goldsworthy, ‘Originalism in Constitutional Interpretation’ above n 2, 31.

[75] Gummow J expressed such a view in SGH Limited [2002] HCA 18 (Unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 1 May 2002) [41].

[76] Sir Anthony Mason, ‘Constitutional Interpretation: Some Thoughts’ [1998] AdelLawRw 5; (1998) 20 Adelaide Law Review 49.

[77] For a more detailed discussion on this point see Meagher, above n 2, 153-155.

[78] Abebe [1999] HCA 14; (1999) 197 CLR 510, 581 (Kirby J).

[79] Abebe [1999] HCA 14; (1999) 197 CLR 510; Truth About Motorways [2000] HCA 11; (2000) 200 CLR 591; Re McBain [2002] HCA 16; (2002) 188 ALR 1.

[80] Re McBain [2002] HCA 16; (2002) 188 ALR 1, 21 (Gaudron and Gummow JJ).

[81] [1999] HCA 14; (1999) 197 CLR 510, 531 (Gleeson CJ and McHugh J).

[82] Ibid. Similar comments were made by Kirby J at 589 and Callinan J at 603.

[83] Ibid 582 (Kirby J).

[84] Ibid 531 (Gleeson CJ and McHugh J). Similar comments were made at 581 (Kirby J).

[85] Ibid 590 (Kirby J).

[86] See Ibid 555 (Gaudron J) and 561-562 (Gummow and Hayne JJ).

[87] See Ibid 572 where Gummow and Hayne JJ said: ‘Section 75(v) give this court power to grant relief against an unlawful exercise of or refusal to exercise Commonwealth executive authority. The right to have the executive make its decisions according to law is, then, not a right that is created by Pt 8 of the Act.’ The Court endorsed this proposition in Construction Forestry Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16; (2001) 178 ALR 61, 71-72 (per curium) As Stephen Gageler has pointed out: ‘Section 75(v) has become more than a source of jurisdiction for the High Court to grant relief in a case of jurisdictional error on the part of an officer of the Commonwealth. It has become the source of the officer’s duty to observe that officer’s jurisdictional limits. Chapter III of the Constitution it seems has become the source of a substantive legal duty. A Commonwealth officer, it seems, must stay within the limits of the jurisdiction set by a Commonwealth statute not because Parliament has told him to but because section 75(v) says he must.’ – Stephen Gageler, ‘The High Court on Constitutional Law: The 2001 Term’ (Paper presented at the Gilbert & Tobin Centre of Public Law 2002 Constitutional Law Conference, Sydney, February 15, 2002) 11.

[88] Ibid 562 (Gummow and Hayne JJ).

[89] Ibid 558.

[90] Ibid 525 (Gleeson CJ and McHugh J).

[91] Truth About Motorways [2000] HCA 11; (2000) 200 CLR 591, 629 (Gummow J), 599 (Gleeson CJ and McHugh J), 638-639 (Kirby J), 668-669 (Callinan J).

[92] Ibid 639 (Kirby J).

[93] Ibid 637 (Gummow J).

[94] Re McBain [2002] HCA 16; (2002) 188 ALR 1, 21 (Gaudron and Gummow JJ).

[95] For example, in Abebe [1999] HCA 14; (1999) 197 CLR 510, 531-532 Gleeson CJ and McHugh J briefly mentioned the framers’ intentions and Kirby J at 581-582 rejected their relevance to constitutional interpretation. However, the issue was not decisive as they reached the same conclusion.

[96] See ‘The originalism/progressivism debate on the Gleeson Court’ below 21-30.

[97] [1921] HCA 20; (1921) 29 CLR 257, 265 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ); For example, see Abebe [1999] HCA 14; (1999) 197 CLR 510, 524 (Gleeson CJ and McHugh J), 555 (Gaudron J), 570 (Gummow and Hayne JJ), 585 (Kirby J), 604 (Callinan J); Re McBain [2002] HCA 16; (2002) 188 ALR 1, 4 (Gleeson CJ), 18-19 (Gaudron and Gummow JJ), 23 (McHugh J), 53 (Kirby J), 61 (Hayne J).

[98] See further Dworkin, above n 10, 70-72.

[99] A detailed examination of the recent s 80 jurisprudence of the Gleeson Court is undertaken later in the article – see ‘Section 80 of the Constitution’ below 19-21.

[100] Australian Constitution covering clause 5.

[101] See text above following n 54-60.

[102] [1999] HCA 30; (1999) 199 CLR 462, 663 (footnotes omitted).

[103] In support of this interpretative principle Gleeson CJ, Gummow and Hayne JJ cited at 663 the famous passage of Story J written in regards to the United States Constitution: ‘The instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence.’ – Martin v Hunter’s Lessee [1816] USSC 34; [14 US 141, 151] (1816)

[104] These include the Australian Constitution, Statute of Westminster 1931 (UK), Statute of Westminster Adoption Act 1942 (Cth), Australia Act 1986 (UK), Australia Act 1986 (Cth).

[105] See Kirby, above n 2, 12-13.

[106] See text above following n 17-19.

[107] See Kirby, above n 2 above 13 - Justice Kirby quotes the part of the Gleeson CJ, Gummow and Hayne JJ judgment in Sue v Hill where they endorse the Windeyer J passage in Bonser v La Macchia referred to earlier in the article – see above fn 52.

[108] Nolan v Minister for Immigration and Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178. A case where a person in the same situation as the prosecutor in Re Patterson was held to be an “alien” for constitutional purposes.

[109] See Re Patterson [2001] HCA 51; (2001) 182 ALR 657, 661 (Gleeson CJ), 719-720 (Gummow and Hayne JJ).

[110] Gaudron, McHugh, Kirby and Callinan JJ.

[111] See text above following n 57-61.

[112] Re Patterson [2001] HCA 51; (2001) 182 ALR 657, 669 (Gaudron J), 678 (McHugh J), 734 (Kirby J), 755 (Callinan J).

[113] Ibid 734 (Kirby J).

[114] Re Colina [1999] HCA 57; (1999) 200 CLR 386; Cheng [2000] HCA 53; (2000) 203 CLR 248; Brownlee [2001] HCA 36; (2001) 180 ALR 301.

[115] Jury Act 1977 (NSW) ss 22(a)(i) & 54(b).

[116] Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226, 244 (Barwick CJ).

[117] R v Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556, 582 (Dixon and Evatt JJ).

[118] Cheng [2000] HCA 53; (2000) 203 CLR 248, 357 (Gaudron J) (footnotes omitted).

[119] Re Colina – Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ; Cheng – Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ.

[120] Re Colina [1999] HCA 57; (1999) 200 CLR 386, 426. Kirby J endorsed this proposition in Cheng [2000] HCA 53; (2000) 203 CLR 248, 321.

[121] See Meagher, above n 2, 165-167.

[122] For a thoughtful recent discussion on s 80 see Amelia Simpson and Mary Wood, ‘A Puny Thing Indeed – Cheng v The Queen and the Constitutional Right to Trial by Jury’ [2001] FedLawRw 5; (2001) 29 Federal Law Review 95.

[123] [1993] HCA 44; (1993) 177 CLR 541 (‘Cheatle’); Brownlee 303 (Gleeson CJ, McHugh J), 313-314 (Gaudron, Gummow and Hayne JJ), 333 (Kirby J).

[124] [1993] HCA 44; (1993) 177 CLR 541, 560 (per curium).

[125] Brownlee 307 (Gleeson CJ and McHugh J).

[126] See text above following n 61-74. The distinction properly applied may have yielded contrary results. Cf Goldsworthy, ‘Originalism in Constitutional Interpretation’ above n 2, 32 regarding the use of the connotation/denotation distinction to interpret s 80.

[127] Brownlee 333-334.

[128] Ibid 304 (Gleeson CJ and McHugh J), 315 (Gaudron, Gummow and Hayne JJ), 346 (Callinan J).

[129] Ibid 304 (Gleeson CJ and McHugh J).

[130] See Goldsworthy, ‘Originalism in Constitutional Interpretation’ above n 2, 19-21.

[131] Re Wakim [1999] HCA 27; (1999) 198 CLR 511, 551-554 (McHugh J), 599-600 (Kirby J).

[132] Ibid 549.

[133] Ibid 577 (Gummow and Hayne JJ).

[134] Ibid 544-546 (Gleeson CJ), 556-557 (McHugh J), 576-577 (Gummow and Hayne JJ).

[135] Ibid 600-604.

[136] An excellent discussion on these matters is contained in Graeme Hill, ‘Revisiting Wakim and Hughes: The Distinct Demands of Federalism’ (2002) 13 Public Law Review 205.

[137] (1999) 200 CLR 322. (‘Re The Governor; Ex parte Eastman’)

[138] Ibid 377.

[139] The majority judges were Gleeson CJ. Gaudron, McHugh, Gummow, Hayne and Callinan JJ.

[140] (1999) 200 CLR 322, 332 (Gleeson CJ, McHugh and Callinan JJ).

[141] Ibid 333 (footnotes omitted).

[142] Ibid 380-383.

[143] Ibid 373 (Kirby J).

[144] [2000] HCA 29; (2000) 203 CLR 1.

[145] Ibid 41-51 (McHugh J), 79-81 (Kirby J).

[146] Ibid 32-33 (footnotes omitted).

[147] See Ibid 80-89.

[148] Ibid 83.

[149] Ibid 117-123.

[150] Both Kirby and Callinan JJ argued that the last paragraph of s 73 which states that ‘Until the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court’ supported the argument that the High Court could receive further evidence on appeal as the Judicial Committee of the Privy Council has this power – Ibid 84-85 (Kirby J), 119-121 (Callinan J).

[151] Ibid 97 (Hayne J) (footnotes omitted).

[152] Ibid 24. Similar views were expressed by other majority judges: 11 (Gleeson CJ), 35 (McHugh J), 96-97 (Hayne J).

[153] See text above following n 64-67.

[154] Keven Booker, Arthur Glass and Robert Watt, Federal Constitutional Law: An Introduction (2nd ed 1998) 286. Sir Owen Dixon also recognised that ‘constitutional questions should be considered and resolved in the context of the whole law’. – Jesting Pilate (1965) 212.

[155] Aala [2000] HCA 57; (2000) 204 CLR 82, 93 (footnotes omitted and emphasis added).

[156] Grain Pool [2000] HCA 14; (2000) 202 CLR 479, 501 (emphasis added).

[157] See Chin, above n 66, 630-634.

[158] Grain Pool [2000] HCA 14; (2000) 202 CLR 479, 515.

[159] Ibid.

[160] Attorney-General (NSW) v Brewery Employees Union of NSW [1908] HCA 94; (1908) 6 CLR 469, 600-617 (Higgins J).

[161] Grain Pool [2000] HCA 14; (2000) 202 CLR 479, 493-495 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ), 514-515 (Kirby J).

[162] Ibid 493-496 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ), 531-532 (Kirby J).

[163] [2002] HCA 18 (Unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 1 May 2002).

[164] Ibid [14].

[165] Ibid [77] (footnotes omitted).

[166] Deputy Commissioner of Taxation v State Bank (NSW) [1992] HCA 6; (1992) 174 CLR 219, 229 (per curium).

[167] SGH Limited [2002] HCA 18 (Unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 1 May 2002) [14] (Gleeson CJ, Gaudron, McHugh and Hayne JJ).

[168] Ibid quoting from the State Bank case [1992] HCA 6; (1992) 174 CLR 219, 229 (per curium).

[169] Ibid [28].

[170] Ibid [31].

[171] Ibid [70].

[172] Ibid [32].

[173] Ibid [80].

[174] Ibid [78].

[175] Ibid [14].

[176] Cf Graeme Hill, ‘”Originalist” vs “Progressive” Interpretations of the Constitution – Does it Matter ?’ (2000) 11 Public Law Review 159.

[177] Greg Craven, ‘Original Intent and the Australian Constitution – Coming Soon to a Court Near You ?’ (1990) 1 Public Law Review 166, 169.

[178] Ibid.

[179] The issue arose in Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337 (‘Kartinyeri’) but five of the six judges disposed of the case without having to determine the proper scope of s 51(xxvi).

[180] For an interesting discussion on this issue from the perspective of a moderate originalist see Goldsworthy, ‘Interpreting the Constitution in its Second Century’ above n 2, 699-701.

[181] For example, in Lenah Meats (2002) 185 ALR 1, 97 Callinan J stated that he disagreed with the unanimous decision in Lange v Australian Broadcasting Commission [1997] HCA 25; (1997) 189 CLR 520 to confirm the existence of an implied constitutional freedom of political communication. He wrote: ‘[T]he authors of the Constitution were well aware of the First Amendment to the Constitution of the United States and most deliberately must have chosen not to incorporate such a provision in our Constitution.’ (footnotes omitted). Moreover, the High Court has already recognised some rights from the separation of judicial power effected by the Commonwealth Constitution. For excellent discussions on these matters see: George Winterton, ‘The Separation of Judicial Power as an Implied Bill of Rights’ in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994) 185; George Williams, Human Rights under the Australian Constitution (1999) Ch 9.

[182] For example in Kartinyeri [1998] HCA 22; (1998) 195 CLR 337, 381 Gummow and Hayne JJ said ‘the occasion has yet to arise for consideration of all that may follow from Dixon J’s statement that the Constitution: “is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption.”’

[183] See John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 172 ALR 625, para 70 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), para 137-143 (Kirby J).

[184] For an excellent discussion on these matters see Jeremy Kirk, ‘Constitutional Implications (I): Nature, Legitimacy, Classification, Examples’ [2000] MelbULawRw 26; (2000) 24 Melbourne University Law Review 645, 652-654.

[185] See text above following n 114-129 and Meagher, above n 2, 148.

[186] See Re Wakim [1999] HCA 27; (1999) 198 CLR 511.

[187] In NAAV v Minister for Immigration and Multicultural & Indigenous Affairs [2002] FCAFC 228 (Unreported, Black CJ, Beaumont, Wilcox, French and von Doussa JJ, 15 August 2002) the Full Court of the Federal Court recently held that the privative clause contained in s 474 of the Migration Act 1958 (Cth) introduced by way of an amendment made in October 2001 has left little scope for judicial review of migration decisions. The legislative amendments ‘do not prevent access to the Courts [but] leave little scope for an applicant to argue successfully that the decision affecting him/her was invalid on legal grounds.’ (summary of judgment). The matters of Plaintiff 134 of 2002 v Commonwealth and Applicants s 134/2002, Ex parte Re MIMIA & Anors were heard by the High Court on September 3 & 4, 2002. In these cases the Court considered the constitutionality of ss 474 & 486A of the Migration Act 1958 (Cth). The Court reserved its decision in both matters. Transcripts of both hearings can be viewed at <http://www.austlii.edu.au/au/other/hca/transcripts/recent-transcripts.html>

[188] Aala [2000] HCA 57; (2000) 204 CLR 82.

[189] Justice McHugh recently made extra-curial comments expressing his concern at the deteriorating relationship between the federal executive and the judiciary in the area of immigration law: ‘I do not share the belief that tension between the judiciary and the executive is a public good and indicative of healthy, well-oiled government...Occasional conflict may do no harm. But if tension persists, as it has done in the migration area in recent years, it damages the public interest. If the executive is continually criticising the judiciary, the authority of the courts of justice is likely to be undermined and public confidence in the integrity and impartiality of the judges is likely to be diminished.’ – ‘Tensions Between the Executive and the Judiciary’ (Paper presented at the Australian Bar Association Conference, Paris, July 10, 2002) 3.

[190] SGH Limited [2002] HCA 18 (Unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 1 May 2002) [41].

[191] Ibid [44].

[192] Mason, above n 76, 49.


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