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Kirby, Michael --- "Constitutional Interpretation and Original Intent: A Form of Ancestor Worship?" [2000] MelbULawRw 1; (2000) 24(1) Melbourne University Law Review 1


Constitutional Interpretation and Original Intent: A Form of Ancestor Worship[*]

THE HON JUSTICE MICHAEL KIRBY AC CMG[†]

[There are few issues of greater legal importance than the principles which should guide the interpretation of the Australian Constitution. There are various theories about how this task should be performed — ranging from obedience to ‘original intent’, through ‘evolutionary originalism’ to the notion that the text is ‘set free’, to be construed only as it is viewed through the eyes of contemporary Australians. The author reviews the approach of Sir Anthony Mason, former Chief Justice of the High Court of Australia, to the problem. Then, by reference to recent cases, he examines the contemporary attitudes of the High Court. He concludes by emphasising the need for a consistent approach. Rejecting ‘original intent’ as a form of legal ‘ancestor worship’, he suggests that the Constitution belongs to the 21st century, not to the 19th. In construing its words we should not be governed, or even significantly influenced, by understandings about its meaning in 1900. It is our understanding today that matters.]

I NORTH AMERICAN INTERLUDE DOWN UNDER

Do United States judges, unlike their Australian counterparts, when ascertaining the meaning of their Constitution, engage in a quaint ritual of ancestor worship? Are our American colleagues so mesmerised by the awe in which they hold the revolutionary founders of the republic who wrote their Constitution (Jefferson, Madison, Hamilton, etc) that they feel obliged to construe the text, 220 years later, by ascertaining the intentions of those great men at the time they wrote it, however inapt those intentions might be to contemporary circumstances? In brief, when a problem arises under the Constitution of the United States of America, is the judicial duty to consult the historical records to discover the original intentions of the founders? Is the task ‘rather like having a remote ancestor who came over on the Mayflower’,[1] (akin in our case, perhaps, to the HMS Sirius) and asking him or her the meaning of a political document that governs the affairs of the nation in the space age? Are there any risks that this quaint American ritual will travel to the Antipodes and capture the imagination of Australia’s judges in the task of interpreting the Australian Constitution (‘Constitution’)?

These were some of the controversies about constitutional interpretation which were debated recently in Auckland, New Zealand, at a conference on constitutionalism.[2] Scalia J of the Supreme Court of the United States and Binnie J of the Supreme Court of Canada gave different answers. The former is probably the ‘most eloquent expositor’[3] of the modern theory of originalism. He believes that, of its nature, a written constitution has a fixed meaning which does not change with time and that such meaning of the text is the same as the words signified when the constitution was first adopted. Binnie J, recently appointed to the Supreme Court of Canada, was called upon to answer the criticisms implicitly directed by his United States colleague at the process of judicial elaboration of the Canadian Constitution and its Charter of Rights and Freedoms.[4] It was in the context of defending the Canadian approach to that task, that Binnie J let slip the opinion (which he suggested was held by some Canadian judges) that the approach of their counterparts in the United States could only be explained by appreciating that Americans were engaged in a ritual of ancestor worship.[5]

The constitutions of the United States of America (1776–91); Canada (1867); and Australia (1901) are amongst the three most enduring of such documents in the world today. But what do they mean? The question of constitutional interpretation arises at the very threshold of every case in which the constitutional text must be elucidated. The text of the Australian Constitution — like those of the United States and Canada — is written in language which is brief, sometimes obscure and usually ambiguous. As recent shifts in the High Court’s elaboration of the meaning of the Constitution demonstrate,[6] even an assertion that a particular construction of the text is ‘settled’ by many past decisions does not necessarily bolt the door against re-examination if new scrutiny is considered necessary by the majority of the Justices of the court.[7] This is why the approach to the construction of the Constitution arises in all great constitutional disputes. It is an issue which has fascinated the Justices themselves.[8] It has attracted a great deal of writing by scholars, both in Australia[9] and overseas.[10] It ought to concern all practitioners and students of the law in a federation, like Australia, with a written constitution adopted long ago. Citizens too should know about it.

II SOME RECENT CASES AND THEIR SIGNIFICANCE

As illustrations of the importance of this subject, it is useful to take three recent decisions of the High Court:

The purpose in mentioning these three recent and dissenting opinions of mine is not to reargue the debates settled by those cases. That would be tedious and inappropriate. But these three cases show how vitally important is the way each Justice of the High Court approaches his or her task of interpreting the text of the Constitution. The three cases raise three questions:

  1. Should the Justices confine themselves to ascertaining what the words meant according to the original intentions of the founders of the Commonwealth, as expressed in the 1890s at the Conventions and elsewhere, so as to have an objective and discoverable standard?
  2. Should they accept those intentions as being relevant to their task; but decline to view them as necessarily determinative of the meaning of the Constitution as it operates in Australia today?
  3. Or should they regard the constitutional document as having been set completely free in 1901 from the intentions, beliefs and wishes of those who drafted it so that it is viewed by each succeeding generation of Australians with the eyes of their own times? Should the succeeding Justices of the High Court seek true meaning and purpose by a technique of interpretation in which ‘the subjective intentions of the framers may not fetter the present and the future to the distant past’?[21]

III OPPOSING OPINIONS ON ORIGINAL INTENT

At the New Zealand conference, at which Scalia J was presented in intellectual combat with Binnie J over this issue, each expressed, in eloquent language, the viewpoint he espoused.[22] It was not difficult for Scalia J. He has been writing on this topic for many years, both as a member of the Supreme Court of the United States and extra-curially. In 1997, in a book entitled A Matter of Interpretation, he explained his viewpoint:

The American people have been converted to belief in The Living Constitution, a ‘morphing’ document that means, from age to age, what it ought to mean. And with that conversion has inevitably come the new phenomenon of selecting and confirming federal judges, at all levels, on the basis of their views regarding a whole series of proposals for constitutional evolution. If the courts are free to write the Constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all.[23]

Scalia J further stated:

It certainly cannot be said that a constitution naturally suggests changeability; to the contrary, its whole purpose is to prevent change — to embed certain rights in such a manner that future generations cannot readily take them away.[24]
[This is] the whole antievolutionary purpose of a Constitution.[25]
[A Living Constitution] mean[s] what it ought to mean ... If it is good, it is so.[26]
There has been a change in kind, ... not just in degree, ... when it is publicly proclaimed, and taught in the law schools, that judges ought to make the statutes and the Constitution say what they think best.[27]

Binnie J, for his part, appealed to developing notions about construing statutes generally so that the judiciary and others engaged in interpretation will help to achieve and not frustrate their purposes; to the need for the courts to respond to cases before them which raise novel problems; to the frequent failures of the other branches of government to grapple with constitutional development; and to the strongly supportive opinion of the Canadian people, as disclosed in successive opinion polls, concerning the work of the Supreme Court in the elaboration of the Canadian Constitution and Charter of Rights and Freedoms.[28] In his paper, Binnie J called in aid of his opinions the views expressed by another distinguished North American jurist, Chief Judge Richard Posner of the United States Court of Appeals in Chicago:

Some constitutional and other legal issues cannot be resolved [on the facts or in terms of institutional competence] ... and then the judge has two choices. One is to say that if public opinion is divided on a moral issue, judges should refuse to intervene, should leave resolution to the political process. The other is to say, with Holmes, that while this is ordinarily the right way to go, every once in a while, an issue on which public opinion is divided will so excite the judge’s moral emotions that he simply will not be able to stomach the political resolution that has been challenged on constitutional grounds ... I prefer the second route.[29]

So there are the competing views. The one that a constitution is anti-evolutionary. The other that it must be evolutionary. The one that it is necessary to anchor a constitutional text and its meaning in the ascertainable fact of the intentions of the drafters in an earlier century. The other, that this involves a primitive form of ancestor worship, inappropriate to constitutional interpretation in a modern state. The one believing that legitimacy can be found, and found only, in legal history. The other believing that a constitution is a living tree which continues to grow and to provide shelter in new circumstances to the people living under its protection. We have had similar debates in Australia.

It is an honour for me to be invited to deliver a second lecture which celebrates the work of Sir Anthony Mason, past Justice and Chief Justice of the High Court of Australia. My earlier lecture in this series has been published.[30] It was delivered soon after my appointment to the High Court. Now, nearly three years later, I return. The interval has made me even more respectful of, and grateful to, Sir Anthony Mason for his work in and out of the High Court as a modern Chief Justice, in a changing country, in a dynamic world.

IV MASON AND CONSTITUTIONAL INTERPRETATION

As might be expected, both in his judicial decisions and in his extra-curial writing, Sir Anthony Mason has addressed the issue of interpretation of the Constitution many times. Most recently he did so in an essay entitled ‘The Interpretation of a Constitution in a Modern Liberal Democracy’.[31] In that essay, Sir Anthony Mason classified various approaches to the interpretation of the Constitution: ‘originalism’;[32] ‘intentionalism’[33] (a variant of originalism); ‘literalism’;[34] ‘progressivism’ or ‘flexible interpretation’, the last as favoured by Chief Judge Posner;[35] and various combinations of the others. Sir Anthony Mason does not expressly align himself with any of the doctrines. Perhaps at different times in his long judicial career, he has invoked different theories and applied different principles. But after recounting the opinions of leading United States and Australian scholars, he makes it fairly clear that the Australian High Court has, for a long time, turned its back upon originalism and pure intentionalism.[36]

No clearer illustration of this fact could be found than in the 1935 decision that the Federal Parliament’s legislative power in s 51(v) of the Constitution with respect to ‘postal, telegraphic, telephonic and other like services’ extended to radio (later television) broadcasting — services which did not exist (and were not even known to the framers of the Constitution) in the 1890s.[37] Yet, Sir Anthony Mason points to various inconsistencies in the opinions of even the greatest judges of the High Court on this score. Thus he contrasts the reasoning in the Engineers’ Case,[38] which embraces literalism, with the willingness of many of the judges who accepted that rule to hold that implications could nonetheless be found for the importation of rights and obligations restrictive of a granted legislative power and not stated in the text of the Constitution, based on the structure of the document or upon inferences derived from its language and purpose.

Sir Anthony Mason concludes his survey of this subject with an emphasis which was certainly not present 20 or 30 years ago. He refers to the foundation of the Constitution as resting in the sovereign rights of the people of Australia.[39] Twenty or 30 years ago, especially in legal circles, the ultimate foundation of the legitimacy and binding force of the Constitution was given, virtually without dissent, as the Act of the Imperial Parliament at Westminster. That Parliament had enacted the Constitution.[40] Its power therefore gave rise to the legal quality of the norms which it established. Nowadays, a different foundation for the Constitution must be found — one consistent with its origins, history, function and method of amendment. But that very fact illustrates, quite vividly, the evolutionary character of the Constitution — a fact which must affect approaches to the ascertainment of its meaning.

Sir Anthony Mason ends his essay on this subject by expressing the view that a constitutional court, such as the High Court of Australia, must interpret the constitutional charter in a way that will ‘reinforce and enhance the concept of a modern liberal democracy.’[41] However he cautions:

Just how far a constitutional court can travel down such a path will be affected by the court’s own assessment of legitimacy and perceptions of legitimacy. In other words, much depends upon the court’s perception of the underlying political philosophy of the nation, as to the appropriate limits of the law-making function of a non-elected judiciary.[42]

There is no task performed by a Justice of the High Court which is more important than the task of interpreting the Constitution. Each Justice — and indeed every lawyer — who has ever embarked upon that task is obliged to do more than to stumble about looking for a solution to the particular case. Intuition and instinct about such matters are not enough. Sitting at a desk with the Constitution in one hand and a dictionary in the other, is also not enough.[43] Following blindly judicial opinions written in earlier and very different times may not be enough, as Sue v Hill[44] demonstrates. That is why it is vital that each Justice (indeed each reader of the Constitution) should have a theory of constitutional interpretation. Only such a theory will afford a steady guide to a consistent approach to the task. In the absence of a theory, inconsistency will proliferate. The Justice will be castigated, perhaps correctly, for saying incompatible things at different times and construing the same words at different times in inconsistent ways. Guided by Sir Anthony Mason’s introduction to this topic, I want to add a few words as to why history and original intent provide poor guides for the task and why it is incumbent on us to construe the Constitution as a living document so that (as far as its words and structure permit) it serves effectively the governmental needs of contemporary Australians.

V HISTORY IN THE HIGH COURT

To be a lawyer in Australia is, in a sense, to be a legal historian. It is an inescapable feature of the common law that judges and other lawyers live their lives in the presence of the great legal spirits of the past and the cases in which people were once engaged. On our bookshelves, and now in electronic systems, are the tales of ancient conflicts and the attempts, mostly by rational people, to come to principled and just solutions to conflicts. Increasingly, in recent times, the solutions have been offered in the form of legislation. Yet for nearly seven centuries, five of them before modern Australia was founded, cases have been brought to the courts of our legal tradition. Their facts have been written down. The solutions to the problems which they presented have been expounded by judges. Those expositions have been duly recorded. They have been shared with colleagues at the time. They have been sent into the future for the instruction of future lawyers. The power of the judicial reasoning has been passed to new generations for their consideration and benefit. The principles emerging from a multitude of cases have gone together to make up the great body of the common law. To be a judge in our legal tradition is therefore to be a privileged participant in the making of this form of legal history. The contribution of no one, however brilliant and distinguished, is very great or enduring. Occasionally, a towering figure of the common law stands out only to see his or her reputation wither as history catches up and replaces that reputation with someone or something new.

The establishment of the High Court of Australia in October 1903 was a critical moment for Australia’s legal history. From that event sprang a court which, by steady achievement and a happy mix of creativity and continuity, has won the respect of Australians and of lawyers far away. Of necessity, in the early years, the Justices of the court looked to the principles which had been fashioned in the courts of England in the previous centuries. To some extent, as they developed their notions of the Australian federal Constitution, they looked to the decisions of the United States courts. The idea of federalism was at that time (and seemingly still is) alien to most English lawyers.[45] But gradually, the High Court of Australia developed its own jurisprudence. It came to use and reuse the principles expounded by its own Justices. The State courts throughout Australia dutifully followed the principles laid down by the High Court, deferring occasionally to the decisions of the Privy Council which reversed its rulings in questions outside those constitutional matters which were, from the start, reserved to the High Court’s final decision.[46]

In the beginning, the High Court was extremely cautious about the use of Australian legal history, at least in constitutional interpretation, so far as it arose from the debates at the Constitutional Conventions which, in the 1890s, had fashioned and finally settled the text of the Constitution. In the earliest decisions, the court rejected the idea that the Justices could seek enlightenment as to the meaning of the constitutional text from the contributions made in the debates at the Conventions in which all of the original Justices had themselves participated.[47] In part, this rejection derived from the then current view that language had objectively discoverable meanings; that such meanings were to be found by careful study of the text and context; and that most external and historical materials would only be likely to confuse the task of interpretation. In part, the attitude may also have derived from the sure conviction of the original Justices that they knew exactly what the Constitution meant from their own participation in the Conventions. They remembered. They did not need to be reminded, least of all of the words of other delegates, some of whom they may have held in low regard. It is difficult as we look back on the generally high standard of the debates of the Australasian and Australian Constitutional Conventions of the 1890s to remember that the participants were human beings, much as ourselves: with foibles and vanities and weaknesses only too well known to their contemporaries.

The rejection of access to the constitutional debates lasted many generations. As recently as the time of Barwick CJ, the self-denying ordinance was reiterated by a decision of the High Court.[48] But then in Cole v Whitfield,[49] in an opinion of the entire Court in 1988, led by Mason CJ, the old legal rule was reversed. The books of the Convention debates were read in open court.

To explain the true purposes of the guarantee in s 92 of the Constitution, that trade, commerce and intercourse amongst the States would be ‘absolutely free’, the Justices in Cole v Whitfield plunged deep and without restraint into the record of the constitutional debates and into essays on Australian legal history in which scholars, such as Professor J A La Nauze, had earlier analysed those debates.[50] The embargo was broken. Henceforth, the High Court would readily agree to look to the Convention debates to help in the ascertainment of the meaning of the Constitution. An important change in doctrine was thus achieved by adding a new device of legal argumentation and persuasion. Nearly 90 years later, legal history came to the rescue of constitutional interpretation. The study of its materials cast new light. It permitted a new construction of the constitutional text to be adopted. Things would never be the same again. The pretence that constitutional interpretation required nothing but a close and prolonged study of the text of the Constitution was abandoned. But what is to take its place? Is it to be the search in the Convention debates for the subjective intentions of our founders, as Scalia J urges? Or is our use of those debates to be more limited?

VI ORIGINAL INTENT OR A TEXT SET FREE?

To a superficial student of Australian legal history, it might appear that the abandonment of the prohibition on the use of the debates in the Constitutional Conventions amounted to the acceptance by the Australian High Court of techniques apt to the discovery of the original intentions of the drafters. Certainly, the study of their words in the debates of the 1890s would tend to show what they thought the text which they were adopting, amending or rejecting was supposed to mean. Is this what the ruling in Cole v Whitfield achieved? Does it embrace original intent as the pre-eminent criterion for interpretation of the Constitution? Does it have implications for the construction of other law-making documents, such as statutes and subordinate legislation? Is this what the judicial search for meaning is now supposed to come up with whenever an ambiguity arises in a legal text?

I do not consider that this was the purpose of the use of the constitutional debates which Cole v Whitfield permits. Nor do I believe it is what the High Court has done since that decision or before. At the dawn of federation in Australia, Andrew Inglis Clark was one of the most influential writers on Australian constitutional law. His constitutional text[51] is particularly important because of Clark’s leading part in the committee which prepared the original draft of the Constitution. Clark was well familiar with United States legal authority. This gave him a distinct advantage in the Conventions whenever the issues of federalism had to be considered.[52] Clark wrote a chapter on the interpretation of written constitutions. This recognised that the task would inevitably be a novel and vital one for Australian lawyers in the new federation.

Clark outlined a theory of constitutional interpretation which has had an influence from the beginning. It is one which, I believe, is gradually emerging as the theory proper to the construction of the Constitution:

[T]he social conditions and the political exigencies of the succeeding generations of every civilised and progressive community will inevitably produce new governmental problems to which the language of the Constitution must be applied, and hence it must be read and construed, not as containing a declaration of the will and intentions of men long since dead ... but as declaring the will and intentions of the present inheritors and possessors of sovereign power, who maintain the Constitution and have the power to alter it, and who are in the immediate presence of the problems to be solved. It is they who enforce the provisions of the Constitution and make a living force of that which would otherwise be a silent and lifeless document.[53]

This doctrine of the Constitution as a ‘living force’ is one which has proved influential over the years with several Justices of the High Court of Australia.[54] When an old line of authority is overturned, this may sometimes be explained not by reference to an error in the perception of the Justices who propounded that authority at the time of its invention and first applications, but rather by the fact that the eyes of new generations of Australians inevitably see the unchanged language in a different light. The words remain the same. The meaning and content of the words take colour from the circumstances in which the words must be understood and to which they must be applied.[55]

In a number of recent decisions, I have endeavoured to explain the ‘living force’ view of constitutional interpretation. Thus in Re Wakim,[56] much of the debate before the court concerned the meaning and operation of Chapter III of the Constitution, dealing with the Judicature. Those provisions were devised in a time of established colonial (later State) courts and no federal courts. This situation has completely changed in 100 years. Now the federal courts are strong, well funded and ubiquitous. Fashioning a new relationship between all of the courts of the integrated Judicature established by, or recognised in, the Constitution did not seem inappropriate. In the course of my reasons I stated why I took a view of the construction of the Constitution different from my colleagues:[57]

In my respectful view, the point which distinguishes the competing opinions expressed in Gould[58] (now reflected in these proceedings) concerns a conception of the Constitution and of its capacity to adapt to changing times, with needs vastly different from those which existed when the text was written. I differ from the view that the function of the Court in constitutional interpretation is to ‘give effect to the intention of the makers of the Constitution as evinced by the terms in which they expressed that intention.’[59] Once the makers’ draft was settled it was submitted to the vote of the electors of Australia. Approved and enacted, it took upon itself its own existence and character as a constitutional charter. As Holmes J remarked in Missouri v Holland: [60]
‘[The Constitution] called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.’
The makers did not intend, nor did they have the power to require, that their wishes and expectations should control us who now live under its protection. The Constitution is read by today’s Australians to meet, so far as its text allows, their contemporary governmental needs.[61]

Although my view did not carry the day in Re Wakim, it is interesting to compare it with the opinion of the majority who, in Sue v Hill,[62] expressed a conclusion about the meaning of ‘subject or citizen of a foreign power’ in s 44(i) of the Constitution. As I have said, such an idea would certainly not have been in the minds and subjective intentions of the drafters of the clause and the delegates to the Constitutional Conventions. Even at the time of the Engineers’ Case in 1920, the High Court declared that one of the ‘cardinal’ features of the Constitution was the ‘common sovereignty of all parts of the British Empire’ with the United Kingdom at its head.[63] The United Kingdom was thus not then a ‘foreign power’ in relation to Australia. It was at the very centre of the Empire of which Australia was an important member and Dominion. Yet a new look, with today’s eyes, at the same phrase in s 44(i) of the Constitution has resulted in a construction which almost certainly is the opposite of that which would have been perceived by judges and ordinary citizens in the early decades of federation. The text remains exactly the same. The perception of its meaning has changed dramatically.

A study of the debates of the Constitutional Conventions could not alter this conclusion. That study might be helpful to stimulate the minds of those who have the responsibility of construing the text. It could be helpful to isolate and present the problem for decision. But the conclusion of the High Court in Sue v Hill is, I believe, a particularly clear instance of the way in which Australian constitutional jurisprudence has freed itself from the doctrine of original intent that still has such an influence on constitutional construction in the United States.[64] This is what the majority said in Sue v Hill:

In Bonser v La Macchia, Windeyer J referred to Australia having become ‘by international recognition ... competent to exercise rights that by the law of nations are appurtenant to, or attributes of, sovereignty’. His Honour regarded this state of affairs as an instance where ‘[t]he law has followed the facts’. It will be apparent that these facts, forming part of the ‘march of history’, received judicial notice. They include matters and circumstances external to Australia but in the light of which the Constitution continues to have its effect and, to repeat Windeyer J’s words, ‘[t]he words of the Constitution must be read with that in mind’.
There is nothing radical in doing as Windeyer J said; it is intrinsic to the Constitution. What has come about is an example of what Story J foresaw (and Griffith CJ repeated) with respect 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.[65]

The study of language in the 20th century has shown the complex functions that are involved in deriving meaning from words. Nowhere is this more so than in determining the meaning of a national constitution — a law of a special character under which other laws are to be made. In that task, judges have choices to make. The scope for choice must be recognised, however uncomfortable the choice may sometimes be. It is highly desirable that judges should expose the reasons for their choices. Resort to formulae such as ‘original intent’, ‘plain meaning’, ‘evolutionary originalism’ and ‘connotation and denotation’ may sometimes disguise rather than clarify the real reasons why one choice is preferred in a particular case and another is rejected.

So what is now needed in Australia is a consistent theory for the proper approach to the resolution of problems of this kind. The adoption in one case of a criterion of ‘the intention of the makers ... as evinced by the terms in which they expressed that intention’[66] and the adoption in another case of something analogous to Clark’s ‘living force’ doctrine, may suggest an element of ambivalence about the approach to constitutional interpretation[67] which future cases will need to resolve.

There is much wisdom in Ruth Sullivan’s view[68] that, in the kind of democracy which a constitution such as ours establishes, judges should make their choices by giving meaning to words in a way that protects and advances the essential character of the polity established by the constitution.[69] In Australia, this function is to be performed without the need constantly to look over one’s shoulder and to refer to understandings of the text that were common in 1900 when the society which the Constitution addresses was so different. It is today’s understanding that counts. Reference to 1900, if made at all, should be in the minor key and largely for historical interest. Not for establishing legal limitations.[70]

In my opinion, a consistent application of the view that the Constitution was set free from its founders in 1901 is the rule that we should apply. That our Constitution belongs to succeeding generations of the Australian people. That it is bound to be read in changing ways as time passes and circumstances change. That it should be read so as to achieve the purposes of good government which the Constitution was designed to promote and secure. Our Constitution belongs to the 21st century, not to the 19th.

Sir Anthony Mason was right to call the question of interpretation to the notice of everyone concerned in the operation of the Constitution. He continues to call to our attention the key issues for Australian constitutional life, and for the destiny of our nation as an independent state in a world of globalism and regionalism. It is that world, above all, that requires adaptability and imagination in the application of the text of 1901. This is not to defeat the intention of the Constitution and its framers. On the contrary, it is to achieve its high and enduring governmental purposes for the Australian Commonwealth.

Sir Anthony Mason showed us the way. It is fitting that his leadership as a judge and scholar should be remembered and celebrated by the students of this Law School. It is important that we who follow, judge and student, should learn from Sir Anthony Mason’s example, and take strength from his practical creativity in the field of Australian constitutional law.


[*] Text based on the Melbourne University Law Students’ Society’s Sir Anthony Mason Honorary Lecture, presented at the Law School, The University of Melbourne, 9 September 1999.

[†] BA, LLM (Syd), BEc (Syd), Hon DLitt (Newc), Hon LLD (Macquarie), Hon LLD (Syd), Hon LLD (Nat Law Sch, India), Hon DLitt (Ulster), Hon LLD (Buckingham), Hon FASSA; Justice of the High Court of Australia.

[1] Paul Brest, ‘The Misconceived Quest for the Original Understanding’ (1980) 60 Boston University Law Review 204, 234.

[2] Liberty, Equality, Community: Constitutional Rights in Conflict? (Auckland, New Zealand, 20 August 1999).

[3] Sir Anthony Mason, ‘The Interpretation of a Constitution in a Modern Liberal Democracy’ in Charles Sampford and Kim Preston (eds), Interpreting Constitutions: Theories, Principles and Institutions (1996) 13, 14.

[4] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11.

[5] Justice Ian Binnie, ‘Session Two: The Future of Equality’ (Session conducted at Liberty, Equality, Community: Constitutional Rights in Conflict?, Auckland, 20 August 1999).

[6] See, eg, Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360, referred to in Mason, above n 3, 15.

[7] Patrick Keyzer, ‘When is an Issue of “Vital Constitutional Importance”? Principles Which Guide the Reconsideration of Constitutional Decisions in the High Court of Australia’ (1999) 2(1) Constitutional Law and Policy Review 13.

[8] See, eg, R v Commonwealth Conciliation and Arbitration Commission; Ex parte the Association of Professional Engineers, Australia [1959] HCA 47; (1959) 107 CLR 208, 267 (Windeyer J). See also Bonser v La Macchia [1969] HCA 31; (1969) 122 CLR 177, 230 (Windeyer J). Cf Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, 143 (Brennan J); Grain Pool of WA v Commonwealth (2000) 170 ALR 111, 115, 116–18 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ), 133–4, 136–43, 143–6 (Kirby J).

[9] See, eg, Greg Craven, ‘Original Intent and the Australian Constitution — Coming Soon to a Court near You?’ (1990) 1 Public Law Review 166; Jeffrey Goldsworthy, ‘Originalism in Constitutional Interpretation’ [1997] FedLawRw 1; (1997) 25 Federal Law Review 1; Haig Patapan, ‘The Dead Hand of the Founders? Original Intent and the Constitutional Protection of Rights and Freedoms in Australia’ (1997) 25 Federal Law Review 211; David Lyons, ‘Original Intent and Legal Interpretation’ (1999) 24 Australian Journal of Legal Philosophy 1; Jeremy Kirk, ‘Constitutional Interpretation and a Theory of Evolutionary Originalism’ (1999) 27 Federal Law Review 323; David Tucker, ‘Textualism: An Australian Evaluation of the Debate between Professor Ronald Dworkin and Justice Antonin Scalia’ [1999] SydLawRw 22; (1991) 21 Sydney Law Review 567.

[10] See, eg, Brest, above n 1, 234ff.

[11] [1999] VSC 227; (1999) 73 ALJR 839 (‘Re Wakim’).

[12] The challenged provisions were Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 9 and Corporations Act 1989 (Cth) ss 51, 56. Other provisions which purport to confer State judicial power on the Federal Court and were cited by the court but not directly challenged include: Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) s 4; Jurisdiction of Courts (Cross-Vesting) Act 1987 (Qld) s 4; Jurisdiction of Courts (Cross-Vesting) Act 1987 (SA) s 4; Jurisdiction of Courts (Cross-Vesting) Act 1987 (Tas) s 4; Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) s 4; Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA) s 4; Jurisdiction of Courts (Cross-Vesting) Act 1987 (ACT) s 4; Jurisdiction of Courts (Cross-Vesting) Act 1987 (NT) s 4.

[13] Australian Constitution ch III.

[14] Re Wakim [1999] VSC 227; (1999) 73 ALJR 839, 877 (Kirby J).

[15] [1999] HCA 30; (1999) 73 ALJR 1016. See the comment of James McConvill, ‘The United Kingdom Is a Foreign Power — Sue v Hill(2000) 4 Deakin Law Review 151, 158.

[16] Gleeson CJ, Gaudron, Gummow and Hayne JJ.

[17] Sue v Hill [1999] HCA 30; (1999) 73 ALJR 1016, 1073. See also McHugh J at 1067–8 and Callinan J at 1076.

[18] Ibid 1077 (Callinan J).

[19] (1999) 73 ALJR 1324 (‘Ex parte Eastman’).

[20] R v Bernasconi [1915] HCA 13; (1915) 19 CLR 629; Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226; Capital TV & Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591.

[21] Ex parte Eastman (1999) 73 ALJR 1324, 1340.

[22] See above n 2; David Zlotnik, ‘Justice Scalia and His Critics: An Exploration of Scalia’s Fidelity to His Constitutional Methodology’ (1999) 48 Emory Law Journal 1377.

[23] Justice Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997) 47.

[24] Ibid 40.

[25] Ibid 44.

[26] Ibid 39 (emphasis in original).

[27] Ibid 132 (emphasis in original).

[28] Binnie, above n 5.

[29] Chief Judge Richard Posner, ‘The Problematics of Moral and Legal Theory’ (1998) 111 Harvard Law Review 1637, 1708.

[30] Justice Michael Kirby, ‘Sir Anthony Mason Lecture 1996: A F Mason — From Trigwell to Teoh[1996] MelbULawRw 20; (1996) 20 Melbourne University Law Review 1087.

[31] See Mason, above n 3, 13ff.

[32] Ibid 14–15.

[33] Ibid 15–16.

[34] Ibid 16. The literalist approach was favoured in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129 (‘Engineers’ Case’).

[35] Mason, above n 3, 16–23. See especially 19ff for an exposition of Posner’s views.

[36] Ibid 26–7.

[37] R v Brislan; Ex parte Williams [1935] HCA 78; (1935) 54 CLR 262.

[38] [1920] HCA 54; (1920) 28 CLR 129.

[39] Mason, above n 3, 30. Cf McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140, 237 (McHugh J). There were early glimpses of this theory. Thus the authors, John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (first published 1901, 1976 ed) 988, observed in their comments on s 128 providing for alteration of the Constitution: ‘In the Constitution of the Commonwealth ... there is no absolute sovereignty, but a quasi-sovereignty which resides in the people of the Commonwealth, who may express their will on constitutional questions through a majority of the electors voting and a majority of the States.’

[40] Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.

[41] Mason, above n 3, 30.

[42] Ibid.

[43] For a recent critique of literalism (‘textualism’), see Ruth Sullivan, ‘Statutory Interpretation in the Supreme Court of Canada’ (1999) 30 Ottawa Law Review 175, 181ff.

[44] [1999] HCA 30; (1999) 73 ALJR 1016.

[45] But see Lipohar v The Queen [1999] HCA 65; (1999) 74 ALJR 282, 315–16 (Kirby J dissenting).

[46] Australian Constitution s 74.

[47] Municipal Council of Sydney v Commonwealth [1904] HCA 50; (1904) 1 CLR 208, 213 (Griffith CJ, Barton and O’Connor JJ); Baxter v Commissioners of Taxation (NSW) [1907] HCA 76; (1907) 4 CLR 1087, 1104–6 (Griffith CJ, Barton and O’Connor JJ). Cf Goldsworthy, above n 9, 13.

[48] A-G (Vic) ex rel Black v Commonwealth (1981) 146 CLR 559, 577–8 (Barwick CJ). Cf David Solomon, The Political High Court: How the High Court Shapes Politics (1999) 224–5.

[49] [1988] HCA 18; (1988) 165 CLR 360, 385 (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ).

[50] Ibid 387, referring to J A La Nauze, ‘A Little Bit of Lawyers’ Language: The History of “Absolutely Free” 1890–1900’ in A W Martin (ed), Essays in Australian Federation (1969) 57.

[51] A Inglis Clark, Studies in Australian Constitutional Law (first published 1901, 1997 ed).

[52] Fiona Wheeler, ‘Framing an Australian Constitutional Law: Andrew Inglis Clark and William Harrison Moore’ (1997) 3 Australian Journal of Legal History 237, 242.

[53] Clark, above n 51, 21 (emphasis added). See also Wheeler, above n 52, 248.

[54] See, eg, Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, 171–4 (Deane J).

[55] Victoria v Commonwealth [1971] HCA 16; (1971) 122 CLR 353, 396–7 (Windeyer J) (‘Payroll Tax Case’). Cf Goldsworthy, above n 9, 16.

[56] [1999] VSC 227; (1999) 73 ALJR 839. For a critique of this decision, see Dennis Rose, ‘The Bizarre Destruction of Cross-Vesting’ (1999) 11 Australian Journal of Corporate Law 1; Michael Whincop, ‘Trading Places: Thoughts on Federal and State Jurisdiction in Corporate Law after Re Wakim(1999) 17 Company and Securities Law Journal 489; Ian Turley, ‘The Implications of Re Wakim(2000) 4 Deakin Law Review 159.

[57] This quotation is from Re Wakim [1999] VSC 227; (1999) 73 ALJR 839, 878 (citations added).

[58] Gould v Brown (1998) 193 CLR 346. In Gould, the High Court was evenly divided and therefore the challenge to the cross-vesting legislation failed on that occasion. But the challenge was quickly renewed and in Re Wakim it succeeded.

[59] This was the view stated by McHugh J in Re Wakim [1999] VSC 227; (1999) 73 ALJR 839, 848.

[60] [1920] USSC 87; 252 US 416, 433 (1920), cited in Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226, 272 (Windeyer J).

[61] See especially Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226, 272 (Windeyer J).

[62] [1999] HCA 30; (1999) 73 ALJR 1016, 1035–6 (Gleeson CJ, Gummow and Hayne JJ); 1048–50 (Gaudron J).

[63] [1920] HCA 54; (1920) 28 CLR 129, 146.

[64] The majority in Sue v Hill explained their opinion in a way consistent with the distinction that is often drawn between the ‘connotation’ of words (which remains unchanged and, in the Constitution, means the same today as it did in 1900) and the ‘denotation’ (which alters over time). Gaudron J did so explicitly: Sue v Hill [1999] HCA 30; (1999) 73 ALJR 1016, 1049. Gleeson CJ, Gummow and Hayne JJ appeared to adopt a similar approach: at 1026. Cf Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337, 400 (Kirby J dissenting).

[65] Sue v Hill [1999] HCA 30; (1999) 73 ALJR 1016, 1027 (citations omitted).

[66] Re Wakim [1999] VSC 227; (1999) 73 ALJR 839, 848 (McHugh J).

[67] Paul Schoff, ‘The High Court and History: It Still Hasn’t Found(ed) What It’s Looking For’ (1994) 5 Public Law Review 253. See also Wheeler, above n 52, 239.

[68] Sullivan, above n 43, 226–7.

[69] Reference re: Secession of Quebec [1998] 2 SCR 217, 247, 257; 161 DLR (4th) 385, 409–10, 417–18.

[70] See generally Grain Pool of WA v Commonwealth (2000) 170 ALR 111. For discussion in earlier cases, see A-G (NSW) v Brewery Employees’ Union of NSW [1908] HCA 94; (1908) 6 CLR 469, 502 (Griffith CJ), 522 (Barton J), 535ff (O’Connor J); King v Jones [1972] HCA 44; (1972) 128 CLR 221, 229 (Barwick CJ).


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