I,EGlSLATI\'E HISTORY ;!XI) THE SURE AKD TKt'E INTERPRETATION O F STATCTES IN GENERAL . W L ) TFIF: COSSTITUTIOS I S PAIITICCLAK During the debate in the House of Representatives on tllc Broadcastizzg alzd Televisiort Act 1960, there occurred the following interchange :"Whatever the Postmaster-General may tell us tonight or a t other stages of the bill, the Attornev-General has already pointed out that once thi, question reaches the court the opinions expressed here in speeches and answers to questions will have no bearing on the issue. I should like the AttorncyGeneral to inform us later whether an opinion expressed by him in this House as Attorney-General of this nation, would have any bearing in litigation concerning interpretation of legislation." Itzterjection-"The on it."l honourable nzemher could have two boi) In the second reading debate in the Nrn South Llrales Legislatlve Assembly on the Indl~strzal~irbzfrufloi~ (1:emalc Rates) Ui!l 1958, the Minister present~ngthe Rill uttered some commcnt- Irl similar vein :"I am attempting to explain what the Government intcnd5. The Honourable Member must know that what is said in thii House does not matter in the interpretation of the words of a measure. At times Honourable Members think they are doing certain things in this House, but a court will give an entirely different interpretation to the word. contained in the legiklntion."2 To these quotations may be added the following remarks of Lord Reading in a debate in the Home of Lords:-"Xeither the words of the Attorney-General nor the word. of an ex-Lord Chancellor, ipoken in thiz Houye, a i to the meanlng intended to be given to language used in a Rill, have the slightest effect or relevance when the matter comes to hc, considered by a Court of Law. The one thing which stand. out beyond all clueition is that in a Court of Law you are not allowed to introduce observations made either by the Government or by anybody else, but the Court will only glve 1 . Commonwealth I'arl. Ileb. (1960) H. of R.,p. 1899. 2 X.S.W. Parl. Deb. (19581, p. 2346. con.ic1eration to the, 5tatutt. ~ t ~ l fThat i i elemcntarv, hut I . think it is ncccL\,arv to bring it home to your Lord,ll~l)\ l)ec,iu~e I think too much importance can be attached to languagc which fell from the Attorney-General.'I3 Let those quoted passages furnish t h e text for this article, which consists of an examination of the rule of construction t h a t states that the 1)arliamentary history of an enactment is not admissible to explain its meaning. Exclusion extends, not only t o the proceedings in Parliament, but also to extra-parliamentary materials such as the report of a royal commission or committee of which the legislation may be the fruit.4 Given that the words of Parliament itwlf, formally enacted in the statute, are the authentic expression of the intention of Parliament, it follows 1li;it parliamentary history or other materials cannot be allowed to altcr the perceived meaning of the statute. I t follows less clearly, though i t appears to be eclually wcll established, that these material.; ma\. not be resorted to tr.tterc, on an examination confined to t h e Icgi>lative text, the rnc~aning eludes confident perception and tilt. interpreter is dri1.c.n 1)cyond the h a r ~ text in order to complctt. his task. The exclusionary ruli, has been cxamined critically in ot11r.r places5 The justification for examining the matter afresh lies in two recent decisions of tile Supreme Court of Victoria in which parliamentary del~ateswere referred to as aids for construing in the one case a n Act of the Victorian Parliament, and in the other a n Act of the Commonwealth Parliament. That the rvferences wert, made is on the face of it surprising and warrants investigation. ,. Ilic rnattrr 1)vfore the Victorian Supreme Court in 1'. .If. Burke Pt?. Ltd. 7 ' . C'itv of' HorshamG involved the interpretation of :L difficult prol.isio~lof the Locul Go7lern?nent Act 1!44(i of I'ictoria, the provision having been amended in 1949 and again in 1!fi4. 3. $14 1-1.7.. I)el)., p . 232 (193.1). 4. , ? I N X Z E I P ~ thr, Intevpretalro)~ 1tf S f i ~ t ~ i / t I0< , on ~ ~ etl. (l.on(lorl, 1953). \):I. 27-8; Craies 071 Statute 1-aw, 5 ed. (I.on(lol~,I!);i2). pp. 121-3. 5. See ('. I<. .Illen, I.ctw iiz the illakzng, t i ctl. ((lxf(>rd, 10581, PI). 47ti-S, 485. 497-801, 504-7. 512-4; 1'. Frankfurter, "Some Ketlectrons (In the Reading of Statutc.~", 17 ('oluwzb~a I.. II'L'z,.527 (10471; I ) . (;. l i l l ~ o ~ l r . "The Rule .Agair~itt h e I ' i e of 1.egislative F-Iistory", 30 C ' U I I . H U Y l ? ? , ' . 761) (1952); l i . ('. i)avis, "1,egislative History and t h e \Vheat Iloartl Case", 31 Cult. Nu? I1't.z'. 1 (19.53);1. \ . ( ' i ~ r r ~"'Tile l'sc o f I,egihlatl\c ., History in t h e lntc.rpretat~onof Statutes". 32 C ' n t i . Nccr l l t ' t , .ti24 (1!+54l; and H. 13. Benas. "The ('onstruction of Statutes", 102 [..,I.-'(i!j (I!!;?). ri. (I 95x1 V.R. ~o:). I1i hl- judgment, Sholl having reached a certain view of thc p:oL.islon, wc~lt to \a\ on "The \,ietv which I have taken appe;irs to me also to accortl with what onc ~volildexpect to have hecn the intention of the IAegislaturehax~ingregard to doubts which llad arisen in legal circle> prior to the amendment of 1849; see i7ictorian Hansard 1949. 1.01. 230, p. 2176, where it is recorded that Sir Jab. Kennedv, the then Minister of Pul~lic LVorks, and the 121inister in charge of the Hill, said in his second rcading speech: 'Section 586 of the 1,ocal Government Act provide5 that where somt. private street construction works are urgently rccluiretl, ;L council may esecute the urgent works, charge for them, and postpone the other works until later. I)olil)t has arisen as to whether the urgent works should be done as 3 separate scheme. or whether a complete scheme should be prcpared and only the, urgent portion executed. There have lxen conflicting opinionh on that question.' .r., I do not continue the quotation to the point where the Minister stated the purpose of the amendment, hut it is, I consider, legitimate to refer to his statement of the problcm which had arisrn in relation to the matter in legal and local go~~c>rnrnent circles, and which it was obvioll.;l~.the purpose of the amendment to deal with. I do so thc more rcadily l~c,cau.;c it is well-known that the practice was in 1940, as it is today, for the hecond-rcading speech of the Jlinistcr in charge of such a piece of anlending legislation as the I-aced (;n~~ernmrrlfc t A 194!f, to be prepared for the Slinister by the parliamentary draftsman from information in his pos~ession."~ ?ht. other judges on thc caie, Lowe j. and JIartin .I., whlle concurring in the result reached by Sholl J., do not appear to have, made themielves a party to his reference to j)nrliamentary debates. 2'. In La?lghor?z~ La~zghornes the question was whether the jurisdiction under Part I I I A of the Commonwealth ,\.latrimolziul Cazlse~.Act 1943-1955, which provided that :L woman with three yearb' residence in a State may institute matrimonial proceedings in the Supreme Colirt of the State as tliough she were domiciled in the State, was available to a woman who, though qualified by residence, was also in fact domiciled in Victoria so that the ordinary State matrimonial jurisdiction was open t o her. The Court, consisting of Harry J., in holding that Part IIIA was applicable, appears to have thought that support for this conclusion was to be found in the consideration that Part IIIA, insertcd in the Principal Act by an amending Act of 1955, was intended to continue and, a t the 7 . i h i d . , a t p. 210. 8, ihid , 500 sarrlt, time, widen tlic limited jurisdiction, 1)ast.d on rcsidcnce, ~.onf(,rrtd Pxrt 11 of the Princil);~l by .Act. In .11;1y 1!)55 all :~~neriding was introduced in the CornmonHill wcaltli I'arliamcnt. I t was ~)assed by 130th Houses, and recti\.cd thcs assent on 15 June, 1!1.55, a n d commenced t o operate on 13 J u l y , 1955. It ic'us azloioedljl designed t o continue thrb I~rneficialeffects of Part I1 o the Principal Act and t o f rtirnovc the limitations as t o timcs and other restrictive contlitions contained in the original legislation. (('ommon\vealth 1). 1'. ,ir 1,imentary Debates 1955, pp. 451-4, 1451-1464 (Kepresentativch): Vol. 56 (Smatc) pp. Xi-!),7U1-7).Y I ht t11c ~ t < l l ~h , ~c\ hecn nddtd. The 1).1gi'5 referred t o comprchrnd c \%holeof the dcI1atc5 In the Houie and Senate on the 19.53 13111. - Thc~judgrncxnts of Sholl J. and 13ar1-J. J . r a k e a number of issuc.,. bl'hat is thc real import of the rnlc against 1e.gislative I ~ i s t o r?~ . 8Iaq. it 11c that, a> h a i heen s u g g c ~ t c d . the t r s t writera '~ II;LV(~~nihtrikenits nature and t.1-ectcd into a canon of constrliction what is no nlol-t, tllan a couns1.1 of caution ? Nay parliamentary ~lt3b;~tcbs looked ;it, riot tc, i r e 1';irliament's intention, 13r1t for the 1)e ~ ) u r p o s eof ascort;lining \vli,it wa. the mischief Parliarn~nt \v;is rlr~ilingwith ? T o 1,rsgin aomv~vl~erc near thc beginning, in tht, lIid(ll(~ .Age. ontAfinds English judgcs making f ~ - c e l s e a n y means al-ailai)lts ~ of for asct>rtairiing thr, actual intention of the l a ~ v r n a k c r ~ . Thr-cc. c,samples mentioned by l'rof(.3sor Pluck~ic>tt given hc>rc.l1 111 arc' tl~c reign of EdLvard 1 Hengharn ( ' . l . sc~ttlcda dificult c1uc;tion in tl~ciwords: "\\'e agreed in 1)arliarnc.nt that thrl wife if not named jn tlic. writ sliould not I)? rc.cc~i1-cd."l2 .t'l~o~-pt,. ~ J recallvd iri 13W (' . t h a t tlir,rc had ht.cn a dihcn-iion I~yfort. him on the interpretation o f a htatute ";rnd Sir Il11gh Green ('..I., Ii.l',., and I wcnt togetht,r t o the c o ~ ~ n c whtm thcrc. \\-ere a good t\vo dozi,n 1)iihol)- ant\ il rlarl5, ant1 niked thost. who niadr tho htatutcs what it rnt1;lnt." '1.111, .~~-chl)isllol) t1rt.m what the \tatutt, rncant, after r,'tnarliing that told the judge!,' cluc.5tion wah r;~thes;1 ,ill>, 011e.l:~ In tllc~f:~niol!s (.:!>e of the St;rtutv 1)t. I ) o l ~ i s ,though the. 5tatlltc rc'fcrrcd o11l>. to tlic' first generation, Bereforti ( ' . I . .aid: "Hex that mad? tilc >t;ktutc3 meant to 1)irid t11e. issue in f t ~ .tail, a. \v(xIl ;I\ the> fcoficci, ~illtiltlitx tail 1i;ltl rcnchc~tl tllc, foul-tli (l,~gl-c~>, n dit was O i l 1 through ;~ Iiilgorll., op.c!/. tlir i v l~!tr~p~~~tritiiijii . i i \ ! Ilirl/ i ~ tiit' i I!).).)), it11t1 id tlrc l;o~!rfi'~~iiiict r c i 1, 1 ( ;II,,IIL.I(I~C, C'oiicisi, l / i ~ . ' o t r ( I / //I( (oi Cowtnzojr f>czu,, 4 cti. (I.IIII(~IB~. I!+4Xj, I ? . 31 I,1.1 1 ' y . 12. Y.13. 32 a11d :3:3 I < t l \ ~ .1 (Inpplementary evidence of that intent when the text was not clear; on the other hand, a hold rewriting of the text in the style of 13oreford C . J . would be ruled out. However, moving now to the sixtt~rnthccntury, the judgcs are to he found grappling with the difficult problems of meaning bv arming themselves with "rules of construction". Granted that thew may have been difficulties in thc way of obtaining satisfactory supplementary evidence of legislative intent, an intricate system of rules of construction is drawn up and applied with such enthusia.;m and devotion as to suggest that the exercise was undertaken, not as the best that could be rnanagcd in the circumstances, hut as the natural and correct way of tackling the task of interpretation. The nature of the rules ranged from rules that turn on matters of grammatical structure to the comprehcnsivc: and now discarded doctrine of the equity of a statute, wherel)y thr words may be broadened or narrowed so that they accord with equity and reason. The emergence of judge-made rules of construction was a development of critical importance. \Vith it, the vie\<. became established, and familiar, that the correct solutior~of difficulties in meaning lies, not in trjring by such direct ways as peering into the legislative process to ascertain the legislative intent, but in applying professional canons to the lifeless letters of ttic lcgisl,Lt l ~ ~ t ' ' text. Though it is not until 1769 that the exclusionary rule is first mentioned and not until about 1900 that its position becomes practically unassailable, the seeds of the development wcrc sown in the sixteenth century. 14. Y. BB. Edward I1 (Selden Society), xi. 1 7 7 ; xii. 226. At the same tirnc thc. picture in the sixteenth century was not unmiscd. In H~:\~tlollJ.s Cast15 in 1584 the Barons of the Exchequer promulgated tht. famous "mischief rule" for the "sure and true intcrpretation of all statutes in general." One of the matters, the Barons said, to be discerned and considered was the mischief and defect which the statute was intended to remedy. This provided sonie leverage for the admission of evidence of legislative transactions, as providing the surest evidence of the mischief. Significantly, however, the report offers no advice as to how the mischief is to be ascertained. I n the note by P1owdt.n on the equity of n statute, one may suspect that, despite the philosophic adornments with which the statement is studded, some of the cases citcd turned, not on equity and reason, hut on a n historical knowlcdge of the purposes of the lawmakers.16 I n t h e seventeenth century there were two occasions where a judge, favoured with knowledge of the actual legislative intcsrlt, used t h a t knowledge in construing the statute. I n I(ili2 in H t d i i , u ~ f h7'. I'rimate,17 in holding that an Act operated upon contracts m'ldi. before it, Hale ('.I<. said that its predecessor \vas esl)ressly limitt.rl to futurc contrarth, "l)ut those words were left out of t h t .Act on purpose to leave. it general, to m y own certain knowltdgc." Lord Nottingharn in .Ish 1,. .-lhd?'l8 in 1Cii8 claimed the Stcctzite c Frai((1s f! as his own: "I said t11;it 1 had some reason to know the rnc2aning of this law; f o r it lrad its first rise from me, who brought in the hill into the I,o~.ti.<'House, though it afterward\ reccived some xtlditions and inll,iovcments from the Judges and the civilians." \Yhat appt,;il-s to I3c tlic, first expression of tht. c~sclurionary rule was made by LVilles J . in Millar 21. T ~ z y l o r l ~ : "Th? Gens? and rneanirig of a n Act of Parliament must be collected from what it says when passed into a law; and not from thc history of changes it underwent in tht, house where it took its rise. That history inot known to tht, other house, or t o the S o ~ e r e i g n " . ~ ~ an ISut c,samination of tllil jl~dgmentsshows the dictum to 1)tl a 1.er-y feeble thing indeed, for tlach of the judges, including \Villc\ -1. himself, c:onsiderctl th? 1);lrliamentary history of thc Act !fl IRlferencc wa:; made to thr, petition of authors, hook-sellers arid printers that led to thc pissage of the Act, -4ston J. providing a citation of thc volumc of thcs .lour-nal of the House of Commons in which the petition ;il)l'eart.d Kcfercnce was made to changcls in thr. Hill in committtlc in tilt, Hol~scof Commons, with \\'ille- ,I. ~naking11.t. in this corintxiorl of the rule of 1)arli;~mentary ) r a c t i c that nc.w ~ i~ ISill cannot l ~ rn;idc, in a cornmittcc. As to tlic ,uggc.tc~l ijinorancc~ e 15. 17. 19. 21. 3 ('0. iicxp. i a . 16. 2 I'lnwden 465. Hardres 318. 18. 3 Sn.an3. 664. [1769] EngR 44; 4 Burr. 2303. 20. ~ b l d . a t p. 3933 , ibid., a t pp. 2:3:33-1. 2350-3, 2390-1, 3405. LC-gislatzz~e History, Statutes alzd Co~istz'tutio~l 7 of the Home of Lords about the transactions in the Commons on the Bill, it appcars from the judgment of Yates .I. that the Lords and the Commons in fact conferred on one aspect of the Bill. It has been suggested that the principal historical reason for the adoption of the exclusionary rule was the unavailability of legislativc~records.22 In fact, as MiZlar v. Taylor demonstrates, the Journals of the Houses, in which were reported the formal legislative h i ~ t o r yof enactments, were available. M'illes J. bases his dictum, not on the unavailability of evidence, but on the assumed irrelevance of what takes place in one House in construing an enactment that required the assent of another House and the Sovereign a- well. I t was true, however, that reports of parliatnentary debates, when they began to appear, were fanciful and unreliahle and, in the opinion of Parliament, rlnlawful as constituting a breach of privilege.23 On the other hand, cases continued to occur where, as in Ash 1'. -4bdy above, the judge hail Iinowledgc of legislative history. Thus in 1793 Lord Kenyon referred to the fact that the statute had bee11 drawn by Powell -1. "and that accurate judge would not havc introduced all these different words if the last alone \vould ha1.c 11een s ~ f l i c i e n t " . ~ ~ In England at any rate, the isolation of the judges frorii other governmental spheres llab never been entirely complete; the Lord ('hancellor. for example, has a place in all of tht> three traditional rlepartnients of government, legislative, executit-c and judicial. Sur\,r.ying the scene at the end of the nineteenth ccnt~iry,it may be >aid that, on the evidence of the reportrld cases, occasions where the possibility of using legislati\,e history arose wvrr rarc and in t!lose cases in fact the history was put to use. The one thing again3t their use was the dubious dictu~nof \Villcs J. in Millar c. Tnylo~. B y contrast, in the next hundred years therc 21. I<. C. Da\-is, o p . cil. 23. One may date effective reporting of the debates of l ' n r l i a ~ u m t from 1803. However, throughout the nineteenth centur!. the reports \\ere I~asctl substantiall!- on rie\\.spaper reporting and i t 1s not until thc conlrnenccment of official reports of the House of Comrnons ctelxttes in 1900, folio\\-c(l shortly 1))- official reports for the House of Lords, t h a t a completely satisfactory system u;as establishccl. See \V. Law, Otrv Hrc$~snrrd(I,ondon, 1950). In the +Australian colonies, satisfactory reporting systems uerc established in the latter half of the nineteenth century, wit11 the exception of Tasmania, where even today there are no ofticial reports of parliamentary debates and no alternative comprehensive reports. See T'lrc , trsfru11ui.1 I ? c J ' c / ~ ~ ) (Sydney, 1958), vul. 4, pp. 424-6. 'lhere ha\ c3 I E uE~I(I been othcial reports of the debates of the ('ornrnonwealtll l'arlla~nentsinct i t commenced to function 111 1!)01. There are also official reports of thr debates of the Legislati\ e C'ouncils of the Sorthern Territory (commcncing 194XI and the Territor5- o f Papua ant1 Sewr Guinea (commencing 1991). 21. K . w. l t ' a i l ~ s ,5 T.K. 3 i 5 , a t 11. 379. 8 The Liiz71ersily of Qz~ecvsland Law Jour~zal are more than twenty reported cases concerning the admissil~ility of legislative history-an indication that the materials were becorning more freely available and more rc,liable-and the dominant and pr-cvailing judicial view was firmly against admission. The issue now bc.ing fairly and squarely raised, in case after case, the judges on the whole remained true t o the attitude t o interpretation struck by their predecessors in the sixteenth century. I n 1833 in M'Master v. Lornczsz5 Lord Brougham was inclined to read down the general words of an Act so as to exclude Scotland, relying on knowledge that the measure was submitted to Parliarnent on the suggestion of Lord Plunkett, whose object was to deal only with England and Ireland. I$ut one !.ear later in Camerorz zl. Camero~z26the legislation was held to extend to Scotland, Lord Lyndhurst saying: "M'hat Lord Plunkett intended is, for the purpose of construing the Act, immaterial, for the words of the Act must sprak for themselves". I n FelloiL,es z'. Cln?" in I843 Lord Denman C.J., spcaking for the Court, u.~edthe reports ~ of t h Iical Proprrty Commissioners, on which the . k t in question was based, but added that such materials were "somtxtimes dangerous g11ide.s in the judicial construction of j)ublic Aict.., which ouglit to .;l)eak for themselves". I n the opinion of the judges in .?rz[keld T . Johnsotl" some few years later, it W R ~ casc tt,ht,rt. a .second thol~ghtswcrc. bebt and the reports sliould not haye becn u~cd.~"ollock C.IS., speaking for the Court of ICscllequer ('hamher, took son~c,pains t o describe the proper approach: "We prol)ose to construe the act of Parliamrnt, according to thc legal rules for the interpretation of statuteb, principally hy the ~vordsof the statute itself, which we arc to read in their ordinary sense, and only nlodify or alter so far as it ma>- 1x1 necessary to avoid some manifest absurdity or incongruit)., 1111t no further. I t is proper albo to consider thc statc of the law which it proposes or ~nn-portsto alter, thr. rni~c1lirf.swhich c,xisted, and wl~ichi t was intended to remedy, and tht, naturcl of the remedy provided, and t o look a t thtl statutes in pari materia as a means of explaining this statut'. These are the, proper modes of ascertaining the intention of the legislaturr; and we shall not, therefore, refer t o the Iceport of the R m l Property Commissioners published shortlj, before thrt passing 25. 3 Myl. cP- I<., 3%. 26. ibzd., 189. 27. 4 (2.B. 313, a t p]). 354-3tiO. 2X. U . H . 7 4 9 ; 2 Ex. 23G. 29. Lord I l e n ~ n a n ' s"lapse" in 1:rllou~rs i'. C l u ~ ii rathcr rernarkal~leas 11~. , and his ('ourt hat1 t u o years earlier in 1841 rrfusetl to look a t the reports r)f the ecclesiastical con~n~issioners "for the direct purpose of construing the statutes fountietl upon them": Itz the Allatlrzr r!t the Drrcli (!f ).ark, 2 Q.B. 1, a t p. 34. In 1840 he 11ad refused t o takt. notice o f t h e parllamentar? history of a proviso: Q t ~ r r n 2 , . Cnpel, 11 .Id. and $11. 382, a t p. 411. Subsequently in 1848 he refused t o look a t hpeechcs in I1arli;rment: [' a. Whittukev, 3 ('ar. & l i . 636. I . Lrglslat~ve History, Stutzctes alzd Co11~fitzttioll $1 of thib act, ; ~ n d which it is supposed to have owed it. origin, to in o r c l c ~to explain it.; mc~alling;not concei\.ing that \vr can lcyitimately do so, howc17t.r strongly we ma!. be1ir1.c. that it was introduced in order to carry into effect thcir I-r~cornrnenclation t o establish a new statute of limitation.; for tithc~s.":~~. I'ollock C.1:. spoke ag,~inin Hurbat Y. Allen3' in 1852, wliert. l r c ~ alluded to a judgment of Lord Truro explaining how a section carno to take the form it did. I'ollock went on to say that the history of a clause in a statute was certainly no ground for its interpretation in a Court of Law and he would guard himself against being considered as resorting to any such means. In IS80 Cockhurn C..J. in South Eastern Railu*uy Co. 7,. h'uil-z'(i~ Cornmissio~zev.s,32 swimming against the current of judicial opinion, boldly attempted to formulate a rule for the admission of parli,~nlentarp materials: "where the meaning of an Act is doubtful, ~vc. are, I think, a t libertv to recur to the circurnstanccs under which it passed into law, as a. means of solving the difficult!.." He mentioned that the Act was a government measure and wcnt on to refer to the speech in the Commons of the member who iritroducrtl tllc, Rill and to the speech of the Lord Chancellor in the House of Lords. On appeal to the Court of Appeal counsel submittcd that an .Act cannot be co~lstruedby reference to a debate in I'arliamcnt, ant1 Lord Selborne emphatically and peremptorily agreed."" Enough has been said to indicate the dominant judicial trcntl in thc nineteenth ~entury,~"ut one more cahr, a l~;trticulai-1). i~istructi\-tl one on judicial attitudes, is given. In .Ittor)ie:\l (;t'ti(~rt! .I,. Sillcmx in IXCi:J, a case concerning some extremely difficult points of construction of the Foveign E?zlistmetzt -Act, counsel ranged far and wide, drawing heavily on parliamentary history and cluoting debates freely. The Court's reaction t o the onslaught was, not so much t o explicitly rule the materials inadmissible, as to take the view that they were unhelpful, though Pollock C.H., not surk~risingly, set his face against admissibility. He said: "But neitlirr this Court, nor any other Court, can construe any statute, antl least oi all a criminal statute, by what counsel are pleased to suggt,st, we1.t. 30. 32. 33. 34. 2 Ex., a t p. 273. 31. [1852] EngR 432; 7 Ex. 609, a t p. 610. (1880) 5Q.B.11. 217. a t p p . 230-7. (1881) 50 L . J . Q.H. 101, a t p. 203. Other case> here parliamentary tt-ansactions or t h e r q ~ o r t zo n \\-llicl~ legislat~on\\.as based \\.ere considered t o be i~~admissible :Ilavllkt 1 , . are Hentwzirtg (1854) 24 I,.J. Ex. 3 ; 1:'wuvl v . Tlf~llzums(1854) 3 I)re\v. 21; Queen i.. I j ~ v t f o v d Collt-gix ( 1 8 i 8 ) 3 Cj.B.r). (in:%; Nii-i~uvds I , . .llcHvrd~~ (1881) ri ( j . I l . 1 ) . 119; Hr,rvon 2 % . Xathmznes Impru?'rntl,~tt ' ~ J I L ~ N L S . S I O ) I L . Y ( C [1802; .LC. 1!\8. Cases \\.here such materials were let in \\crc t \ \ o ecclesiasticai cases beforc the Privy C o u n c i l Hebbert v. 1'1trt.ilns (1871) L.R.I'.C. (iO.i, antl Hid.,d[tlr, 1 ' . ('lijton ( 1 8 7 7 ) 2 P.11. 276- arltl tlir. c a e of H t ~ d s o ~ .i 7'110th( 1 8 i 7 ) 3 (2.U.L). 46. The P.C. decisions arc tlihcu~aetl r later in the articlc. 33. 2 H & C' 43 1. 10 ?'he University of Queelzslal~d Laic* J o u r ~ ~ a l alterations made in Committee - a h1eml)er of Parliament, who , t was 'no friend to the Bill', c.x7en though the Journals of the Houzc. should give some sanction to the proposition. This is not one of the modes of discovering the meaning of a n Act of Parliament recommended by Plou'den, or sanctioned by Lord Coke or Black~ t o n c . " 3 ~Brambvell H . commented thus: "It m a y be said t h a t this is a lawyer's mode of dealing with the question, merely looking a t the words. I t is so, and I think it right. A Judge, discussing the meaning of a statute in a Court of law, should deal with i t as a lawyer and look a t its: words. If he disregards them and decide.; according t o its makers' supposed intent, he may be substituting Ili, for theirs, and so legislating. .At, has been excellentl!- said, '13cttt.r far be accused of a narrow prejudice for the letter of the law, than set u p or sanction vague claims to discard it in fax-our of some l i i g h ~ rinterpretation, more consonant with the supposed intentions of the fl-arners or the spirit which ought to have animated thcit~'."~' After 1900 the question is regarded as having bcen settletl g gain st admissibility. Thy ('ourt of Appeal in 190(i refu-cd to coi~sider parlia~ncntar-!. histor!.-"Both sides sought to rcfer to what passed in l'arliament . . . but such evidence \va5 of course in;itlrni>sil)lc,and IF-? have confined ourselvts, as we were bound to do, t o a n attcmpt to collect tlie meaning from the language ~ 5 c ~ d . ' ' ~ ~ I m d Atkinson and Lord Par-kcr in Holliu.slieud t l . H n z l c t o ~ z "and ~ 1,ortl Haldanc, Lord Dunedin and 1-ord ITrenbuq. in 1 7 i ~ c o ~ r ~ ~ t i ~ ~ ~ l\'iloriclda's Claimao regarded tlic rule as "nell settled" and "well c.>tal>lished". If lnorc was necdc,d, it naq provided 11y the judgmznt of 1-ord \\7right in .ls.sum R(/i/i,'[t~*s c? l'v(zdiizg Co, 7 1 . ( . o ? ? t ~ t z i s . ~ i o ~ ? t ~ r , ~ 'if I/r/trrr(i R C " L C ~with~\vhicI~Lord \Tarrington. 1.ord Atkin ;t,ltl Z~ E,~' 1,ord 'Sllaulterton co~lc~irred." I t is clear that the language of <: h1inistc.r of the ('so~rnin propohin:: in I'arliament a measure \vhicl~ c\.cntually l ) e c o n ~ ~ - is inrrct~nissil,le and the Iirport of ('onllaw ~nissioner.:is e\-cn mor-c rernol-e,t from .c,alur, a. e\.idence of intvntion, I ~ c ~ c a u it e does not follow that their rccon1mend;ltion~ \v(>rv ~ accepted". Thc dtscl) xc.;itcdncss of the judge,` :~\.c~r>ion ~ ~ s a ~ n i n i n : i . to I~,gislativc Itrocehsixhis illustrated b y TIzc C ) I ~ ~ ~ C ,,. I Bishop ( f ( I . ~ f o v i i , ~ ' 7 I ant1 tllc same c a ~ c appeal under the name of J u l i ~ t s21. Bisl~nj, on of O s f o ~ i l . ~Thc ('olirt of Appeal had allowrcl t h t opinion of thct :~ Lord Chancellor on hection 3 of the Cliirvch l ) i s c i j l i ~ ~ c ~ of 1HlO :let 3ti. zbid., at pp. ,521-2. 3 7 . ibid., at p. 537. 38. R . ;'. 1I'~sf R~N'oigo j ,f'ovkshi~i, ' o ~ l i i t l C O I ( + I C I / ( (IHUCii 2 1i.13. (iili 1'. 700. See also pp. 'il(i-7. 39. j l B l t i ] 1 A.C. 422). 411. (1922) 2 A . C . 331). 41. [1934] UKHL TC_18_509; [1935] A.C. 445. at p. 458. 42. (1879) 4 (j.H.1). 5%. 1 3 . (1880) 5 App. ('ah. 214; 49 I..]. Q.13. 577. ;!I Lrglslaf~7 Historjl, Statzctes nlld Cnlcstctution c 11 given in ,I clieech during the third reading debate on the Pzrblic H70rsht'f,Krglrltrtio~~ Act, 1874, to bc read to it. It is to 1)e noted that the -petch as used, not in rclation to thc Hill then ~intlrr consideration, 1)ut as embodying a \riew of some authority 011 a provi.;ion pa'i>t.d many years before; also, that the speech clid not lwrport to give "in~idc information" about what Parliamvnt intended hy Yection 3 of the Church L)iscipline .4ct but proceeded along ordinary line> of construction. I t is submitted that the Court of Appeal was right in what it did, although, the speech haying bcen let in, two members of the Court, Baggallay L.J. and particularl!- Thesiger L.J., had doubts as to whether their action was correct.J4 On appeal to the House of Lords, the Lord Chancellor, Lord Cairns, and Lord Selborne strongly disapproved of the action taken by the Court of ;\ppeal.45 This looks like ;I view that nothing good can come out of Parliament-whatever its nature and whatever its relevance. J f ~ n t i o nmay also be made here of the opinion expressed by a majority of the Law Lords in I'iscountess Rhonddn's Claim that the rule of exclusion applied before a committee of privileges of the House of Lords, although Viscoui~tBirkenheacl all but jeered a t the holders of such a view, and a lay member of the committee spoke of the absurdity and absolute futility of telling the very peers who had passed the Act i11 quedion a short time ago that their declared intention arid the construction on which they proceeded were not to weigh wit11 them.46 In Hildtr 7'. Dexter,47 Lord Halsbury is t o be found dvclaring that the worst person to construe an -Act is the person rc,sponsible for its drafting, because he is very much dispobed to confuse what he intended to do with the effect of the language which in fact has been employed. On this ground his Lordship abstained from giving any judgment in the case. The general dex-elopment of the rule of exclusion has been traced, but there remain three matters to be dealt with. The, first matter concerns two decisions of the Privy Council of the late ' nineteenth century on ecclesiastical subjects in which legislat i\.e history was extensively used. In Hebbert 21. Y ~ r r c h a s in ~ , ~ which the Act o Uniformit? 1662 was considered, reference was mad<, to f 44. ( 1 8 i 9 ) 4 Q.R.D. a t pp. 576-7, 599-600. 43. See 4 9 L. J. Q.B., a t p. Bi8. 4 6 . jl922j 2 .\.C'., a t pp. 349-350 and 403. 4 5 . ]1901! . . ' 474, a t p. 477. See also pev S a r g e n ~ , J. in H P H Y ~ P( Yl d I(. I<. o .Steuiiw?ic?~'s o ~ z t v n r t (19%) 2 C h . 62, a t p. 84: "Kor is any importanct. C t o be attributed t o the views of the writer, because he may be recognizc(1 as t h e draftsman of the statute in question. On the contrary, that verv fact may disable him from taking a n unbiased view of the expressions used in the .let". (Yf. I.ord Sottingham in .-lsl~3. Abdy above. 48 (1871) 1-.I<. l'.C'. 605, a t pp. 648-9. 12 T h e U n i z ~ e r s i tof ~ Queensland L a u , Journal ~ the introduction of a proviso by the Lords, its rejection by the C:ommons and the rcaasons relied on in the subsequent conference between the two Houses. The Journals of the Houses were referred to. Use was made of similar materials in Kidsdale n. Clifton.49 I'robably the better view of these cases is that in relation to old ecclesiastical laws a freedom is permitted that is elsewhere denied. Bn argument of necessity may be invoked to justify the exception, for if the judges were not able to range freely through contemporaneous writings and records, they would often have difficulty in assigning a precise content to ecclesiastical laws." I t does not seem possible to take the decisions any further. A submission by the Attorney-General in J7iscountess Rhondda's C l a i m , based on Hehht7rf 7,. Purchas, that the general exclusionary rule does not estend to entries in the Journals of either House failed to gain a~ceptance.~~ The second matter concerns the question whether the rule :tmount.; to an absolute embargo on the use of legislative materials it or wl~cther is only their usc. for a certain purpose, "for the direct ~)nrpose construing the statute", that is proscribed. Jzr2ius 7 , . of Hishop of 0,~Jord ahove ma!. be read as suggesting that the prohibition is, at least so far as concerns speeches in Parliament, t~bsolutc. Howevcr, Lord Halsbury in E a s t m a n Photogra$kic Materials Co. 7,. Comptroller-General of Patents, Deszglzs, and T r a d e Marks52 referred to the report of the commission that led t o the enactment in question for the purpose of seeing what was the mischief or defect intended to be remedied. I n doing this he based liimsclf on the canons of constr,uction recorded in Heydon's Case, remarking that no more accurate source of information as to what was the cvil or defect in mind could be imagined than the report of that commission. Lord Halsbury's action was noted without :idversc comment by Lord Wright in .4ssa?n R a i l u , a j ~ 6 T r a d i x g s C'o. I - . C o ? ~ z m z s s i o ~of eIlzland R e ~ r e t z u eand there are other cases ~ ~s ~~ in which reports have been used in this fashion.54 If reports may be so used, why not speeches in Parliament as well ? The answer given by Lord \\7cstl,ury in R e Mez' and T h ~ r n was ~that they e~ 49. (1877) 2 P.D. 2 i 6 . 60. See Lord Halzburv in Read pp. 652-3. 111 1. HZSILOP f Lz?acoln [1892] UKLawRpAC 40; (1892) A.C. 644, a t o * [ I ] . a t . 3 . 1,ord \Vrenbur\- suggested that the l'rivy Council I f r , l ~ i i e r ti s . l'zrvclias (lit1 nut refer ti) the Journals as materials upon wliich ~t relied in forming its opinlon o f the question of construction, b u t arri\.ed at its opinion indepentlently aud merely used the reference by \\-a?- o f "illnstratio~~". Sce ibzd., a t pp. 398-9. Viscount Birkenhead u.as sceptical of this narrow reading o f Hebbevt nr. Purchns and, it is 5uggested wit11 respect, rightly so. 5 2 . [ I X D H ] A.C. 571, a t pp. 573-5. 53. [1!135] .\.C., a t pp. 458-9. 54, l - r ~ r l r ,r ~. ,Ho~~lrum 8 (1861) 30 1..J.' t i . 231) and l i e Mew avid Tliovrz~(1862) ( 31 I-. J . Bk. 87. See also S h p n t o ~ ii , . ' jl e y (1939) 55 T.L.R. 523 and the r note thereon in 65 L.O.K. 488. , .(1862) 31 L.J . Bk. 87.i i . 5 can. After referring to the report of the commi>iion that led to the 1egi.lation and to thc ,peech of the member wlio ~ntroducedit Into the Commons he \,lid: "Sow, I advert to these matters for the I X K ~ O Wof al~iding h\- that rule of interpretation which was approved of 11y Lord Coke, that in the interpretation of a statute it is desirable first to consider the state of tlie law existing a t the time of its introduction, and then the complaints or the evils that were existing or were supposed to exist, in that state of tile law. I do this for the purpose only of putting the interprrtcr of the law in the position in which the legislature itself was placed; and this is done properly for the purpose of gaining assistance in interpreting the words of tlie law, not that one will 1)t. warranted in giving to those words any different meaning fro111 that which is consistent with their plain and ordinary signitication, but a t the same time it may somewhat assist ir1 interpreting those word.; and in ascertaining the object to which they viere directed."j6 l o this map be added the view expressed by Grifitll C;.J., in Municipal Council of Sydney 71. Conzmonz~ealththat parliamentary debate.; may be referred to "for the purpose of seeing what was the subject matter of discussion, what was the evil to be remedied, and so forth."ji This is, of course, using legislative history to abcertain intent, but by the indirect means of discerning and considering the the mischief or defect to b p remedied. In Re ,l.i'fi~, iuzd T I I O Y ~ I C question was whether the enactment excluded a discretio~~ to as of the cli~~charge hanlirupts; the defect revealed by the materials looked at was the evils attendant upon the existence of a di.;cretion under the pre-existing law S o great powers of reasoning were required to conclude from this that Parliarnerit meant to exclude the discretion. Thirdly, mention m m t be made of Ileputjl Fedcrul Co?>znzissio~zfr o f Taxatioil (N.S.W.)2'. W . R. Moran Pty. L t ~ i . a, casts tlcaling with ~~ the constitutional validity of the Commonwealtli TT7I~fnt ~ ~ d u s t r ? , I Assistarzce Act 1938, the preamble of which referred to tlic: conhad ference between the Prime Minister and State I'remierh \vl~ich 56. ibid.,at p. 89. In the middle stages of the U . S . Supreme Court's journey from a position where legislative materials \\ere excluclecl to the present position where they are let in, the Court \\as saying n111ch the s a m c sort o f thing. "A~lthough debates may n u t be uietl 2 s a means tor 1 interpreting a statute, t h a t rule, in the nature of things, i.i not v~olated bh- resorting to debates as a means of ascertaining thc environment a t the time of the enactment of ;t particular l;i\\ ; that is, the histor!. 01 the period when i t was atloptcti" : Stundard 011C'II. I , . 1 -.S. (l!)lO) 2 2 l U.S. 1 a t D. 50. 7 . led t o the passage of the Act and otller connected legislation, Comrnonwcalth and State. 1'11(~ High C'our-t and, on appeal, the Priv!. ('ouncil, considered that in the circumstances thc rccord of t11c co~lfc~rc~lce be referred to. could history I t seems then that thc position in relation to legislati\.(% may hc. htcited as follows. Legislative history may not be looked a t for the purpose of providing direct el-idencc of the intentions of thc lawmakers, but there is a probable csception in fa^-our of old enactments dealing with church inatters. There is ho\vever precedent for using it as indirect evidence of intention, hy way of indicating thc mischief 01- defect intended t o be rrmedied by the enactment. This includes speeches in Parliament. I t v;ould be undoubtedly correct to add that such indirect evidence of intention will not be allowed t o altcr or contradict the clear meaning of the legislative text. lf'here a qtatute expressly refers to a conferenccx or similar proceedings as ;I result of which the legihlation was proposed t o Parliament, the record of the corlferrnce or othrr proceedings may be looked a t , and there do not appear to he an>limits t o the 1)urposes for which the kno\vlrdge thus gained may I)c u s t d , escept that, no d o u l ~ t it would not bc allo\ved to altcr or , coiitradict the clclal- mear~irlg the legi>lati\-ctext. of If this statcmcnt bc acctlrate, then, with respect, Stloll -1. na.< l ) ~ - o b a b ljustified in thi. uhc. lltl made of parliamentar?. debates ill ~1'. N . Bztrke Pt\'. Ltd. z'. City of H o r s h n m discussed al)o\.e. On thy other hand, once again with respect, thrre car1 hardl!- be an!. tloubt t h a t 13arr). J . in rcfor-ring in I,ulzghor~e 7 ' . Luilghovlle to the "avowed design" of t11c. ('omn~on\vraltll Pal-lia~nrnt infringed establi~licd principles. I n the Vnited States, \vllt,re Icgislati\.tx 111;~terials 1ool;ed at arc for thc direct purpose of ascertaining intent, it has been facetiously said t h a t only \vlli\n Icgislativci histor!- is cloi11)tful do !-ou go to the statute. ?`lie iluip makes an important point: Iegislativc n~aterials,if usc:d a t all, nus st not 1)t. allo\vcd to s\vallow up t h ~ words of the statute, \vhicl~ is the appointed \~cliicle for tllc e s p r ( ssion of the l(~gis1ativt~ will." English judges ha\-? r c x t e d t o the danger by favouring complete exclusion. There. i ~1rowc.~-er, . an T,!). Some nlernl~ersof t h e I'nitetl States Supr.t.inc ( ' [ ~ u r t\\0111ci co~cntenancc motiification oi t h e clear ordlnary m'anlng i ~ t1:e \\ortl- 111 tlic statute. t pro\.itled t h e e l iclence Iron1 legislativt~111story 15 ~ufficiently convi~lcing. Sec t h e tlissenting judgmerlt o f Frankfurter, J . In C o m ~ ~ i i s , ~ qf ~~ i~n ~ i r l l( I ~ l rv Rez,ctiifi>z'. rlck1r (1959) 4 1,. ed. .'ti l.'i, a t p. 133. "l31it if C'ongress chooses I)y appropriate means for expressing its purpose to use l a n g ~ i a g r n i t h a n unlikely or even odtl meanlng, i t is not for this C'ourt t o frustrate its purpohe. Tile Court's task is t o construe not English b u t congress~unal I.:r~glish. Our problem is not \\.hat do ordinary Engliqh words mean, Iwt \vhat did Cotigress mean them t o mean". i~ltcrmc~cli;itc, 1)ohitioll a\.ailahle and that ih :I jlldicious r~licli ~ ~ f o r m v d consiclrratioi~of sue11 materials in c;L's w l i ~ r ( '011 ;i rc~adii~g , confintatl to tllr t e s t , the 111carlingremains unclei~r. But, i i i ;c:ltiition to the c1:ingcr just nicntionetl, t l i c ~ ~ ~ ;ire otlic~r grountl> for ' i r g u i n ~that lcgi:,l;itivc ~naterial:; sliol~ldI)(. cscludc,tl, for the. rt,,l;on tli:lt tl1c.y are of littlc weight, or of uncertain signiticancc,, or juat irrclevant. These argumenth have, l)ec7111)ut abl)- and xt Icrigth by J . *I.Corr). in the Canadian IZar l. debates oti't~rn i-c,linl~lc guide to the nature c)f that iiiti.nt. -u~)l)osing it coultl r s i > t , ;ill i l l u s i o ~ ~ . t i-clally amount.; to a vic,~?I tll:~t1larli;tInentar\- d ~ l i ~ t t 'are on the wholc a ratlicr rncaninglc-.; po1itic:~l 4 rite, from which no useful information call be tlcrivcd. l:!rt i-; tl~c. position a- Ihad a- tlli.5 ? :Ilthough debates ma!. ilot ;~ln.,~\.s :tl>t, able, informcd or cotiercnt as one might clciircs, anti altirougli mo-t iasues di,h;irt>d arc -ec,ii and discus::(,il i i i p;i~.tof tht, l>iggcar ; e i ~ ( i clvcr-r~rn~iiii~ po1itic:il ifclntr ah to n11ethc.r 1It.r .\lajt,-t\.'-: C;o\-c~~-iinitLilt-1io~:;tl I~t~corne ;\Iajc\ty1s 01)positiorl, it i bl~ggc>htecl I1t.r t11:lt t11t.r~ 51ifficit.nt cohcrc'iicc, rclevancc ;inti abilit?. 1)rc~~ciit de1)atc.b i~ ill to juhtii!- :t g:~ilc~~.ai that thcse ;irt3 m:~teri;tl-from \r.!~ich: w i , t rule ancc. ma!- l)i. -ought. \The~tllerin fact assist:iric.a.l i- ~)rci\.ic!c'(l. ci11t1 the: a-right to i)e gi\-c'il to it in construing t11cs -tat;:tc, :ire rni~ttc~ib to Ije con-itlc.~-c,tl ~ tlic, 1)articular case. Kot tliiit tiit. w:.iti,r li,crlio~ii.., i i rohc~-coioiiri.cl \-ila\v-. tliar, with tiic ;idrliihsion of i(,;:ibl,iti\.c m;ltc.r ii~l,.. 111ost proll!t.~ii. 01 co:ihtl.~~ction \r.o~ldbe decisil-c.1~ etl. Still it holi is thought t o l>i' a possiljlca and proper position to t;il;c, in r-cl:itio~l to th(> ah.c,l.tio~i that tlicse materials sl~ould esclutit~cl1)c~c;lu~t~ they arc, of little uie, to assert in reply that they sho111d i ~ c .u\c%d, tliouglt tlit.ir utilit!- i11 man!. cases may ilot Ije \7cxr!. grc.;et. 1;or O I I ( . thing, the l:!n-malirrs \zould ha\-c, t l ~ t cornfort of 1)ci:i;: a littlc sir 1.c.1 . tl~it the!- al-csirl f;cct cloing what they tl~iri!; tlic>!- ;II-c. doi~i!:. 'fhc ictytic- a, to lc~gislati\.e nlate~-i;tlsC I ~ ( ,~ . c ~ f ~ , r r c , ~ l tc) tl~c, follo~ving modest I I \ ( , of ttierll as a n aid i11 corlhtrni~igwctioll 1 of 1 the Criuzi~inl .Justice- .lct 1!118 of tlic United Kingcloni. 1)ut sl~o~-tl>., st~ctiori41 providetl that, if the accused is accluitted, "tiic conrt may, if it tilinks fit, tlirect the p a y m c ~ i t. . . of s~lcli sums as alll)ear to thc court t o hi. rensorlai~lysufficielit to colnl)iy~lsittc acc~ibcd t!;~. for thc clrpcxnses 1)rol)c~ly incurrc~d 1)y hi111 iri carryirlg on liii defcncc." \.\'liiic, -c,ctioii 1 t ill tc.1-rns irnl)osc>>110 l i r ~ ~on thc (li>crc,tiol~ it of tiw court, it \\.ah i~c\-i,rintontlt~cl,and it woultl I)c' cjr~itc 1i w U I I I Z Iof Y Y ~ ~ ~ Law Joltnlal C Queeri\lrriirl wrong, that costs should be awarded ;IS of colirse to ever!, ~lt~ftndant who is acquitted. Its use should 1)e reserved for ~~sccytional cases and every case should be considered by the court on its merits. I rnay add that a reference to Harzcard (499 H.C. Del,. 5 S. 12!44) \how5 that thi> is in accordance with what the 'IttornevGeneral stated in Parliament was the intention of the clause when it wa\ being considered in committee. 'Tlic. word5 arc those of the Engliih Court of Criminal Appeal in 19.52. 61 In what follows, the use of legislative history in the field of Australian constitutional law, is considered. In other fields of law, Anstralian courts have, been content to follow the established English position and the only matter of particular note, apart from tlicl .4ustralian casw already discussed, is an extensive use of parliamentary liibtory 1,y the Sew Sonth LT'ales Industrial Commission, conihting of A . 1:. I'iddington, K.C., in a caw in 1!E'i.fi2 " I 1ia1.o mad(. use, and shall make use, of the histor!. of tlii. 1t.gi.lation n o t as in any way altering the view we ought to t;ikv of thc, nic,nning of the words now found in the law, hut as guiding tlic. tribunal to analyse their meaning, knowing how they came t o 11e used. I t is clear law that the debates of 1)a1-1.. 1,tment cannot be used for construction purposes, but a 1. n.j . r may often find a line of inquiry opened to him by a e reading tlie dchates and seeing from them what was contemplated." fi" -.. distinction suggested by the ('ommissioner is, to saJ7the Icast, I he tine on(>,and in fact he appears to have used the debates "for t11c dircct purpose of construing the statutes" in question. ('oming now to the interpretation of the Constitution, when tlie Iiigli ('ourt I q a n to function in 1903 there was available a com~)rvlwnsive rcicm-d of the Conventions and Conferences in Australia that drew up the draft Constitution, of the negotiations 1)c.twc.cw the colonial delegates and the imperial authorities wlieri the docunlc~ntfin;rlly agreed upon was sent to England for approlzl and c~n;lctmc~rit the Imperial I'arliament, and, of courstx, of tht. I)y ~xo(wb(lings thc Imperial I'ariiamrnt on the Constitution 13i11.64 in TIiis cluite forriiidal)lt. mass of materials was made rnorc accc.ssi11lc ( i l . ( 1 !)52) \i'.S. 175. See the co~iimcntz 102 L.,]. 269. i11 62. I' $1 ~ t '. S t u i ~ d ~ <$I-i~#i*zg) < ' ~ c v I / ~ / P ~ o ~ ( o ~z / d d L I i / J-ii,/>/glf71tge l h c I < ~ P I ~ ~ I I ~ , I 31; I . 4 . I i . (S.S.\\;.) 250. 63. z b ~ d . ,a t p. 2 5 i . 64. 1 liit o f materials is appended t o this article. Lrgislatii~t~ History, S t ~ i t ~ r t entzd Cej~zstit~ttioil s I7 by the c~scellent history of federation presented in Qnick ;inel Garran's .411tiofitti9cl' ('otzstitiltioiz c the A4ustrrrli(1i1 ('onztnoirrL't~irith, d puhlislicd in 1000. Furtht~r,the membcrs of the, original H i g i ~ Court, Griffith (:.J., i h r t o n and O'('onnor % J J . , p l a ~ ~ e dIt,ading hitd ;L part in thc~fashioning of the Constitution, as Il:~tl also tile nest ,. two appointrncmts to the (Iourt, Isaacs and Higgini , ] I . I hc. c1ur.stion of admissibility arow varly in the life of th(3 ('ollrt. I n 1904 in MuniciPuL C'ourlcil of S j ~ d n e ~vv. Commo~zri'etrlth6Qo11nst~l was prevented from quoting a statement of opinion from tllt, ('onvcntion debates t h a t section 114 of the Constitution refcrrvd only t o futurc impositions of taxation on property of the Commonwealth 115' thc States. But it is inlportai-~tto note the remark rnaclc, 1)y Griffith C.J. that the Con\.ention speeches "arc no 11iglic.r t h a n par-liitmentary debates, and are not t o be referred t o t ~ . u c c ~ t f o r ,buv,hox~ thr of seeing wlzut il'as the sztbject matter of the discus.\iii~~, z'hut n'us the ezlil to br remedied, and sofovth."66 A few months latt~r, 'I'c~srniznicl in i . C o r n m o ~ z z c , e a l t h , the High Court, whilst st;tting that "thc l ~~ espressions of opinion of members of the ('on\.c,ntions should not he referred to," on the other hand considered that the s~~ccessivc. draft hills of 1891, 18!47 and 1898 prepared 1)y thc. C'on\.entions could be. The Privy ('ouncil in W e b b zl. Olrtrimax in l!tO(i, in considering the effect of t h c Constitution on ill)peal. to itbclf, derived assistance from the observation "that tlrc. a p p c d to thc King in Council was, a> a matter of histor!., onv of tllc, matters t h a t was prominentl!. before the Hritihh I a c g i ~ l a t ~ a tr cthe ti~rle ~ ~ it passed the Common~vralth& k t .. . ." I n Ba?itrr 7'. Commissioizrrs of T a x a t i o n (N..S.IIT.)6"~n 1907, the joint judgment of Griffith ('..J.. Barton and O'Connor JS., referred to section 74 of the C'onstitution (appeal t o t h r I'ri\,y Council) in the form it took in thc draft finally produced by the Convention proceedings of IH!47 to l X O X , and t o the fact t h a t changcs were madc in tht, draft, thougii not affecting section 74, a5 a rcsult of the Premiers' ('onfercncex of IS!)!), adding that the draft, together with the changes madc, \vcrcLset out in the Schedules of the Victorian ilu.slvalu.sici~z F ~ d ~ v r r t i o r ~ E n a b l i ~ ~ g t 1899. 'Tile .Judges, however, stop~)cd Ac bhort of rc,fcarring to, although they were inclined to think they could rrfer to, tlici subsequent negotiations in 1,ondon whcreb~l st,ction 7 4 was nltcrctl t o the forin it took in the ('onstitution as passed 1)y the Inil)e~-ial 65. 1 C.T..K. ?OX, a t p. 213. See also Slt'phrtzs o. .-lI~voirn?ir,~N o . 2 ) (1!103) ( 29 Y.I,.R. 219, in \ \ h ~ c hthe Yictorlan Supreme ('ourt had held t h a t i t could n o t have regard t o \\hat was said in the C'otl\.entiuni 1jy rnembcrx upon the scope, plrrvie\r and effect of t h e provisions of t h c ('otibtituttrm. 66. zbid., a t l)p. 213-4. \Vritt,r's 1talic.s. 67. (1901) 1 <'.12.K.329, a t 1). 333. 68. t19071 .\.C. 81, a t p. !)I. 69. 4 C.I..K. 1087, a t p1). 111 1 , 11 1.5. See also p. 1148. 1';~rliament. I n fact in 1904 in I)ea/iiii 7,. I l ' e f ~ (irifitl~('..I. and b~~ IZarton J . had rcfcrl-rti to these negotiations, the latter in some tlctail. As to subsc~clucntevents, in the Engilzeers' Case71 Knox C.J., 5aacs, Rich and Starke J J., referred to the speech of Lord Haldane in the debate in the House of Commons on the Constitution Bill as evidence that Australian federalism was radically different in conception from the federalism of the United States. In Nezelcastle tr11a7 Htinter River Steamship Co. L t d . 2,. Attorney-General for the (,.(1rnnzoft7ilealth,~~ Brissenden, K.C., referred to Convention speeches throwing light on the drafting history of section 98 of the Constitution, and argued that the history of the provision could be used as an argument as to its meaning, citing the Elzgineers' Case and Uuxter 7,. Commis.sioi~rrsof Taxation (N.S.Vr.)among other cases. I'rom the report it appears that the Court did not object to the rclfcrcncc, altllough it summarily rejected the submission a5 to the rnelaning of section !fX I~ascd it. In Dffiz~t?' on Federal Commissio~lrr I!~?'~XL~Z'OII (A'..S.I1.,) 7 ' . 11.. R. rli'orarr Z't?'. Evatt 1.suggcstc.d, in relation to tllc, intention of section !t(i of the Constitution, that ~~-1-h;1l": ('olll-t \lio~lldtake judicial notice of the fact that thr, tilts \csc.tioni !)li ; ~ n ( l i \ v c w clobcly associated together-thi. X being :a c.lcsar rc-f(.:-c.ncca tl~cxsection as forming part of the agreemcnt or1 to tl~c~ ~,r.r;c,tlisbur of ('o~nmonncalth-Statefinancial relations that was r(.achcd at thv I'rc~mic~ss' ('onfcrcnce 1899. 1)ixon C.J. also touched or1 this ])(lint in tl~cx.Yecol~n' Uilifolw ?'us C a ~ r , ~ % u tindicattd a rather tlific\ront ;~l)l)roncll. "Scction !Ni fosnl-: part of the financial clarlses of the Constitution \vhicli uc, lanow as :t mattcr of historv wc,rc the final outcomr of tllc. ~)rolongcsd attcn~pth reconcilr the conflicting to vicws ant1 intc.rclst- of t l ~ ccolonic.; on that moat difficult of mattcl-x. 'T1:cs 'a;t that it canie out of the I'rcn~irrs'('onfcrcnci, in IS!)!) (scc- t l ~ .i'ictorian >tatutr .1ztstrcllasia11 F r d ~ r i i t i u ~ r E;zul)li~lgA c t lX!)!! (Xo. 1603) 1j;~rticulai-ly5. 2 and first schcdl~lc.), \vlir11the opening words of 5 . S i (the 13:-addon clausc~) wcrr inbcrtcd, does not assist in its construction ltor ozdght the fact to be zrscti for such N fiz~rjose,not\vithstanding that now it has a place,, I~o\vc\-erinconsl~icuous, as part of tllc history of the count^->.." 1 t 7 0 . 1 C .l..I<. Xi>, a t 111). fi??, (i?(i-i, O ' C ' ( ~ r ~ n o r. cor~>i(irrwl l l a t o1?1> l i tllc \\.o1-(1s t a ~ l c ~ ~ l !~txl(l ;I rr;honallle 111r;uning coultl t l ~ r( ' ( ~ u r tl l a \ ? trt resort t o t11c III.~OI-\.f t l ~ c l a i ~ s r :1 1 1 1 ~ ! , , at 1). ti30 o c Legi~latz7~ Hz\tory, Statutes and Colzctlf~ttion I9 in tlic H~znlz N a t i o n a l i z ~ ~ t iCase,'" in proposing a certain view o~~ of section 55 (iii) of the ('o~lstitution,said that ti,? "view is conl1)letcly confirmed by the historq- of the provision, \vhich explains, if indeed it does not illuminate, the \\.hole mattcr." I n his Honour's opinion, that history disclosed that the \.ariation in wording betwccn section 7 5 (iii) and the provision in thc ,%nlerican Conbtitution from which i t was derived, was effected by the framers of the Australian document out of regard to a line of judicial decisions on the Xmerican provision. For this information, ht. relivtl on the a\vareness of the Australian founding fathcrs of tllcl judicial exegesis of the American Constitution, hut added: "\Ye may be permitted to know as a mattcr of history that what is now s. 75 (iii) appeared in its present form in the draft Constitution presented a t the Convention of 18!11 and that before i t so emerged it had gone through the hands of Sir Samuel Griffith who had bclforc him thc report of thc Judicial C o ~ n m i t t ~ e which Inglii Clark .I. presided." o\?er il I n the iorm it took in the report of the J u d i c ~ ~('ommittee, thtx 1011 thc provision follo\ved it5 American model cloirly, ~tliout x ari d t' subyecluentlq introduced. i 4 b The story is quickly told, but it is not \o (%;I.\. to .;a! just what precisely it amounts to. I t may be tr1kt.n ;I.; al.cctl)tcd that it i. not permis.;iblc to refer to .;pceches in tllc C'or~x-cntions in thc or Imperial Parliament on thc. cfft~ctof the provixiol~-of the, ('onstitution. The use of Lord H;iltl:ine'.; spet.cI~in thtt E n g i l ~ r r ~ r ~ ' C~rst. appears to go against t h i ~ hut it is suggc.sted, with rr,sl~t,ct, , that the reference t o the speech, and indeed the argunicnt of which it forms part in the judgment, have never bt>cnta1it.n \-erl- seriously.'" Hut as to the drafts prepared by the Conventions, it does sccm that they may be referred to although the faculty appc.ars to have becn rarely exercised. If the drafts produced by thc Convvntions may bcs referred to, there would seem to be no objectioil to rcfvrring also to the draft in the form it took after the modificationx agrc~rdto by the Premiers' Conference. Returning to the, tisc of spccc-11c.s. may they be used for the limited purposc of ascertaining thc mischief t o he remedied ? Griffith C. J.'s dictum in 1 \ f i t ~ ~ i c i ~ ~ 1' 1 L ~ I Lof ~ L C O C S y d n e y v . Commonz~eulthturns upon the assurnc~tlcxihtcncc of a general rule of admissibility of parliamentary dehatcs for this i 4 a . (1948) 76 C.T,.II. 1 , a t pp. 363-7. i4b. On this see G . Saner, .i ~tctvuliitri Colistitutio~lnlC U S I , 211d r t l . (Sytl~iry, ~, 19571, 11. 215, where i t i x a n g g t = h t e d that, as a matter of history, it is more prtlt)al)le that the t o ~ ~ n t l i nfnthcr, in f r a t n ~ n gs. i 5 ( 1 1 1 ) \\c%rr g gnidetl I > \ .\ustrallall ratl~crt l i ; ~ n . \ m r r ~ c ; ~rx11c11vi1cc. n 1,). Contvii i ). l v. 50, ~ I L Isee H . S S i c I ~ o l : ~ ~ , . l i / \ f t u / ? i i ~ ~, ~ I I , S ~ I ~ I < ~ I I I I211(l t ~ 1 . ~ '/./lta <' I, f)!Sydney, 1!452), 1). :{I!), a1ic1 \\'. .I, \ V ~ I I Y ~,.,',?i\li~tiu~,,,:xt(cltti~t, I Z H ~ , l u d i c ~ c r l1'ouwr.s 1 1 1 l u ~ t ~ ~ i l211(l ~ 1 (5\(!11t*\,, iu. . l!l:(i), pp. 2 5 - 6 . -- 1)nr1)o\tL; the a ~ ~ t l ~ o rthat exists for such a rule has bccn conity sid(,rcld al~ovc.. In order to complete the description of the position it is necessary to add sonic,thing on the operation of the doctrine of judicial noticis in this field. I t has been said that an "astral intelligence," unprcjltdiced 1)). any historical knowledge, and interpreting a constitution merely 11y the aid of a dictionary, might arrive a t a vet-!. diffcrcnt conclusion as to its meaning from that which a person familiar with history would reach. The main items, a t least, of the story of federation qualify admirably as matters which may be judicially noticcdi6 and notice has in fact been taken of (1) thc general motivc,s for f e d e r a t i ~ n , ~(2) that the work of fashioning ' thcs Constitution was carried out by a series of conventions and conferences among the Australian colonies,7s (3) that the statesmen concerned were familiar with the political system of the United S t a t c ~ , ~ ysomP of the events of the Premiers' Conference 189!)80 4) and ( 5 ) the I~attlc the colonial delegates in London on the matter of of apl~ealsto t h r I'riy. Council.Bl I t would be proper for the judge> to rcft~rto thc records t o refresh and vrrif>- their notional judici:il krlo\vl~~tlgc~ the matters of which notice may be taken. of r\la\. n1:ittc.r~j~ltlicinllynoticeable be used in construing the C'onstitution ? \Ye Ila\.c. thy authority of the Privy Council that the general circum>tances of t l ~ rnaking of the Constitution and the familiarity t~ of the makers nitti the Constitution of the United States are two itcms of l)ackgrou~ltl against which the Australian document must 1~ intcx~-l-)retc~d.~' has I~een .4s seen, in the early years, the negotiations in Lo~idoli were used in relation to the import of the ('onstitution on tho m:lttvs of appeals to the P r i ~ - y Council, although th(8 ~ ) r v > c rtcndcnc! appears to be to derive the policy of section 74 ~t on 1'ril.y ('ouncil ;~ppealsfrom the section itself, with little or no :tshiqt:tncc. from it5 history." The position should probably be statchcl as Iwing tliat such general matters ah provide the broad 11i~toric;il 1);ic.l;ground against which the Constitution must 1~ \-ic.\\.c,tl may bc u v ~ d construing the Constitution. As to matters in of no!-c) pal-ticlilarity, the judgments of E v a t t J . in D e $ u t ~Federul ('ornnzz',ssio~zcrof' I'czsatiof~ (iY.S.I.17.)zq. M7.R. Moran Pt~l. Ltd. and -- d l . is. o f judicial n o t i c e , scc Ilixon C . J . in A u s t v a l ~ n ?COP>?~ C ' O P I ~ I ~ Z O ) I E ~ (1!+51),83 C,I..I<. 1, a t pp. 196-7. ~~~I~/I l i u . ~ t ( , iv, , ( ' ~ I I I ~ I I I \ \ ! , J I I ~ I !1g ' / ' O . Y ~ I / I O I I [.\.,S.li..), at 131). 1108-9. S 1tt<111i( I F I I ( I / / , > I , thr ( ~ o I I , I I I ~ I I ~ ~ Lr~. ~ C~. S ~ l/< .I C o . 1-td. ( l l . C . ) ( 1 9 1 3 1 , I -(;, , I . ~ I7 ( . 1 . . 1 < , li4-l. ; I t p. ti.52. ..Ittoriic?,-(;t-)ic.rccl for. thc Conzmo~iu!ralth 1,. I ' ~ I~ ? I ! I Y I I ( I 1 . ( I (1!3>7)~ C',ld.I<.52!l, at 1). 536. $1: / ' I ~ I / I ,I . I ' I ! ( I ) 1 1 . l 1 a t I . 113. .4ttou%1e)*-Genevul l l fi / / I / ~ ~ I I I ~ I F I I I I J I ~ ~ i!, (. ~Tilt,: QLLP<,II> . ( ~ . ) , 1). 536. ~ ~ / / ~ (l at l l ~ x i i t i( ' . J . in t l l v .Sl,io~ill~ ' I I I ~ ( ! J ~7I' 1 1 ~ I C.ust, q u i ~ t c dabove. I)l,nkr,i i s . [ I ' r , l i / ~a r ~ r l1 1 ~ t ~ 1 1 17 ), . 011tril11 ~rcfcrrctlto al)o\.e. See. notes 7S ;111tl ;!I. SPC O ' . ~ i ~ / l i~. ~. V ( ~~( r I ! ~ .Il,,i~t ~ ~ I (.Yo. 2) (1!).56), $34 C . . l . . I < . 3t;i, ' ~ ~ I i L ~ > I LJd. :tt 111). 375-ti. 0 1 7 t h c cloctriilc ? F I ~ < I ? I . s / 7'1section 74, suggest that they, too, ma!. I ~ t x iiscci fur conytruction purposes. Howeyer, it may btl prudcnt to rntctrtain somc3 rc,.;r.rvc. on this lattcr point. In this connt>xion, the p;ts.sagc from ' the judgment of Dixon C.1. in the Secotlil C ~ l v o r mL ' L ~ x C'USC,( ~ ~ o t e c l above, may be of sorne importance; it c:ui he rctrd as intiicating an opinion that some matters within judicial notice may not 1)cl 11st.d for conitruction purposes. The overall picture, then, is one in which thc IcxgislativclIliitory of the ('onstitution has been largely, though not \vholl~.,~ ~ s c 1 1 1 d t ~ I for construction purposes. I t is not easy t o aischs the, cstciit of the assistance that would have been derived had tllc n~att.ri:~ls I)cxtm freely rrsortrd to. The Convention debates, in pnrticul:tr, arc3 rambling affairs and 1 , ~ mcans univocal on niany irnportamt no points. I n this regard, it is of interest that investigations t h a t have Iwen made into the intentions of the, founding fathers on the, nlnch-litigated section I. failcd t o prodticc. u n a n i ~ n i t y . ~ ~ )' I t remains only to notc3 the opinion of I.:v;~tt ,I. in l)'bitl?' Fedc*val Commissio,zer of I'axntiorz (A'.S.Ii~.) i t . Ti.. I?. .lloririi I)!\,. that there is a fundanitlntal distinctio~l1,etn.c-c.nc:t;c,\ \vhisrt, the Court is simply interpreting the language, of a itat1ltc6anti (,;~sc~s wherr it has t o consitl~r~ v l ~ c t h e r stattit? illfringctl an 01-or-litling a constitutional provision. I n the latter caw, the C'ourt may tmtirely fail t o fliltil it,, duty if it restricts itself to thc. languagct eml~loyc'clin tlic. .\ct. wllicll are cliallenged ah unconstitutional. . . . I n principle tlirrc. is no reason whatevcr why public announcements of governmc.nta1 policy, official governmental rc'cords and comrriunications, zinc1 even the records of the proceedings in parliament, inclllding records of debates, I I I I I ~necessarily be cxcluclcti from thtl fic.ltl ~ of relevant evidence. x 6 Ho~vever,the other members of tlic High ('ourt, arid, o ~ itppt,:il, i the Privy Council, dicl not recognisc the suggesteti distinctio~l,111it proceeded on the basis t h a t the ordjn;u-y rulcs i~pplicd \ v l ~ ( ~a ( ~ r statute is challenged on constitutional g r o ~ n d s . ~ ' 84. See 1'. K. Be;t.;ley, "The C'olnmon\ve;iltl~('ollstit~ttion: Sectioll !I2 Its History in the 1;etlcral ('on\.e~~tions", (1. ( l j Et. ..1 . .-I i i i 1 1 ~ 0 1 I.(I). i!j3, 7!l4, 8 7 . ~ l ~ ~ ti pp. :titi, 7 7 6 ; ( I ) . ( .) (1!)40) fj3 ~ ' , I . . I < . a . , :j:3S, a t 1). 341. *I{. \ . , 1,1, I $ . , ( ' o ~ n ~ i ~ o n \ f t ~ : l l i l ~ t't11>:1c Scr-vicc l ~ c ~ l l ( ~ \ v , .\11stralia11h:itioilal I'nivc-rs~ty.I!JtiO. APPENDIX filntr~r~als the n ~ a k i ~ ofg the Constitutron. on l Official Record of the Proceedings and 1)ebates of the National Australasian Convention, Sydney, 1891 (Sydney, 1891). Official Report of the National .4ustralasian Convention Debates, Adelaide Session, I895 (Adelaide, 1897). Proceedings of the Australasian Federal Convention, Adelaide Session, 1897 (Adelaide, 1897). Official Record of the Australasian Federal Con\-ention Debates, Sydney Session, 1897 (Sydney, 1897). Proceedings of the Australasian Federal Convention, Sydney Session, 1897 (Sydney, 1898). Official Record of the Debates of the Australasian Federal Convention, Melbourne Session, 1898 (Melbourne, 1898). Proceedings of the Australasian Federal Convention, hfelbourne Session, 1898 (Melbourne, 1898). Minutes of the Conference of Premiers on the Commonwealth Bill, Melbourne, 1899 (printed in the Argus, 3 February 1899). Reprinted in C.H.M. Clark, Select Documents in Australian History, 1851-1900 (Sydney, 195A), p. 510. Papers relating to the Federation of the Australian Colonies. T ' i c . P.P. 1900, Vol. 3. Commonwealth of .Australia Constitution Bill, K e p r ~ n t of the Debatrs i l l Parliament, the O//zc?al Correspondence with the dustvalian Delegates, curd r~tlrer l'apers. (London. 1'300).