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Probably the most basic contemporary controversy over the interpretation of the Australian Constitution is that between the methodologies of originalism (or intentionalism)[1] and progressivism. According to the first, the fundamental task of the Courts (and especially the High Court) usually is regarded as being to interpret the Constitution so as to give effect to the intentions of those who framed it at the great Conventions of the 1890s, commonly referred to as 'the Founding Fathers' or (as here) 'the Founders'.[2] Progressivists, on the other hand, believe that a search for historical intention is at best incidental in the process of constitutional interpretation, and that the Court should construe the Constitution so as to bring it into accord with modern needs and exigencies. Between the two sides in this fiercely contested debate stretches a vast chasm both of theoretical approach and rhetoric.[3] A third approach, literalism, despite a hallowed history in Australian constitutional law[4] and its routine deployment in virtually all important cases concerning federal legislative power,[5] today largely is overshadowed in the minds of constitutional lawyers by the fascinations of its two rivals.
The central importance of progressivism as a potential constitutional methodology is clear. By wielding the Constitution as a 'living force',[6] the Court can mould its provisions so as to permit the judicial disposition of an entire range of important social and policy questions, ranging from the scope of particular powers of the Commonwealth Parliament, to the constitutional recognition and protection of selected human rights. Traditionally, the operation of progressivism as a constitutional force has tended to be disguised by the deployment of some more conventional forms of legal reasoning, such as literalism,[7] but increasingly it has of late dared openly to speak its name.[8] Equally clear is the basis of the opposition to progressivism. To its critics, progressivism is objectionable primarily on two grounds, each rooted in a version of democratic theory.[9] First, progressivism is a device whereby unelected judges assume power over a range of matters not confided to them by the Constitution, matters which properly fall for disposition by elected legislatures. Second, and even more fundamentally, progressivism—at least in its more potent forms[10]—involves nothing less than the judicial amendment of the Constitution in usurpation of the rights of the electors of the Commonwealth and the states acting under s 128. It is these charges, that progressivism represents an assault by stealth on traditional conceptions of constitutional democracy, that gives the debate much of its academic and political intensity.
Within this fiercely contested discussion, however, one issue has received relatively little attention. This is the question of whether the Founders actually intended that the Constitution should be interpreted more or less strictly in accordance with their intentions, or to put the matter the other way around, whether the Founders themselves might not have intended that the Constitution should be interpreted progressively. While it might be just possible to support an intentionalist theory of constitutional interpretation in the absence of any Founders' intent to that effect,[11] it is implicit in virtually every articulation of intentionalism that the Founders of the Australian Constitution intended, positively, that the document should be interpreted in accordance with their intentions as to its meaning; and negatively, that it should not be the subject of progressive interpretation. In any event, if only as a matter of constitutional rhetoric, any intentionalist theory that could not itself be intentionally supported would be profoundly unpersuasive. The attitudes of the Founders to progressivism, therefore, are of considerable significance within current constitutional debate, and it hardly is surprising that some Australian progressivists are beginning to hint that the Founders should have been counted among their own ranks from the beginning.[12]
This is the central question addressed in this article: did the Founders intend that the Australian Constitution should be the subject of progressive interpretation? First, the notion of progressivism itself will be explored, its different strands and levels isolated, and its relationship with Founders' intent identified. In particular, the increasingly frequent (if vague) suggestions that the Founders did indeed contemplate some form of progressive constitutional interpretation will be noted. Second, and critically, these assertions that the Founders were supportive of progressive constitutional interpretation will be tested against a detailed analysis of the original Convention Debates. The general conclusion drawn in this context will be that, while the Debates do undeniably disclose certain statements progressivist in tone, these are isolated, ambivalent and heavily affected by context.
Third, a similar assessment as to progressive tendencies will be made of three important sources of contemporary material from the period immediately after Federation: some of the more influential constitutional commentaries written in the wake of the passage of the Constitution; the debates on the Judiciary Bill 1902-3 (Cth) in the Commonwealth Parliament; and some of the more significant constitutional decisions of the early High Court. The conclusion reached here will be that, while the debates on the Judiciary Bill in particular contain more than one contribution that is progressivist in flavour, such statements generally are qualified both by their context and their own content, as well as being balanced by other (generally less well known) statements extremely hostile to progressive interpretation. Moreover, it is highly significant that the early constitutional decisions of the High Court are markedly inconsistent with any acceptance by the Founders of a progressive approach. The final conclusion drawn from an examination of all these sources will be that there exists no plausible evidence that the Founders in general or a significant number of them envisaged progressive judicial interpretation of the Constitution.
The central idea behind progressivism as articulated above is relatively straightforward. It lies in the notion that, in interpreting the Constitution, judges (and especially the Justices of the High Court) consciously should strive to construe the document so as to keep its provisions aligned with the developments, needs and values of contemporary Australia.[13] The essence of progressivism thus is that it involves, to a greater or lesser extent, a constant process of judicial up-dating of the Constitution.
Thus stated, there always have been broadly progressive elements in Australian constitutional interpretation, some of them relatively confined in character and generally uncontroversial. For example, the High Court has long employed the technique of connotation-denotation, whereby a constitutional expression includes not only the specific instances which fell within that expression in 1900 (denotation), but also any further instances which have come into being since that time but which are nevertheless within the idea represented by the expression in question (connotation).[14] The chief effect of this technique has been to allow the legislative powers of the Commonwealth Parliament some scope to expand so as to comprehend new developments and technologies as and when they are deployed.
Rather more widely, judicial statements to the effect that the Court's reading of the Constitution must take account of the sweep of history are not unknown, or confined solely to recent years. Perhaps one of the most oft-cited High Court dicta in this regard is that of Windeyer J in Victoria v Commonwealth (the ‘Payroll Tax Case’),[15] to the effect that the repudiation of the jurisprudence of the first High Court in the Engineers Case represented merely a natural process of reading the Constitution in a 'new light' shed by political and social developments in the years since Federation.[16] Admittedly, avowals of judicial revisionism in Australian constitutional history usually have not been so open. The reality, however, is that a strong element of covert progressivism has informed a good deal of the constitutional jurisprudence of the High Court. Most notably, the 'ultra-literalism' that emerged from the Engineers Case has had the practical effect that the legislative powers of the Commonwealth have inexorably expanded simply by virtue of the fact that the interpretative technique of literalism inevitably favours a legislative domain delineated by express enumeration (that of the Commonwealth) rather than one defined by way of general residue, as is the case with that of the states. Engineers-style literalism thus has allowed the Court to pursue a functionally progressivist agenda in favour of the centralization of power while appearing to engage in a value free, formal legalism.[17]
The recent emergence of progressivism as a widespread, explicit force in Australian constitutional interpretation essentially has corresponded with the discovery by the High Court in the Constitution of 'implied rights'.[18] On any real analysis, this process has represented large-scale judicial modification of the Constitution, although as the terminology of 'implication' indicates, the general position of the Court has been that its new rights discourse is linked to traditional norms of constitutional exegesis, and even in a very artificial way to notions of the Founders' intent. Nonetheless, in seeking to justify what undoubtedly was a dramatic departure from its previous highly literal approach to constitutional interpretation, particular members of the Court increasingly have enunciated theoretical positions that are openly progressivist, or whose logic tends inevitably in that direction.
Probably the most dramatic and best-known instance of this tendency was the enthusiastic articulation by Deane J in such cases as Theophanous,[19] of a theory of the Constitution as a 'living force'. Heavily relying on the largely overlooked writings of Founder Andrew Inglis Clark,[20] Deane J ridiculed reliance upon historically-based methods of interpretation as submitting to the clutch of the 'dead hand' of the past. The Constitution was to be interpreted as a 'living force', to be adapted as required by the march of history to new developments and exigencies. The views of Deane J hardly represented the consensus of the Mason Court, but, in their disdain for historically derived constitutional analysis, were to find sympathisers among both judges and commentators.
Although the enthusiasm of the High Court for the creation of implied constitutional rights seems to have waned (at least temporarily),[21] the preparedness of some of its members to articulate an essentially progressivist methodology has not. Most notably, Kirby J in Wakim propounded a form of progressivism just as potent as that of Deane J:
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.[22]
This is a theme that has been almost ritually re-expressed by Kirby J (with minor variations) both in his judgments and his extra-curial writings.[23]
Even McHugh J, often regarded as a constitutional conservative on the basis of his repeated injunctions that the process of constitutional interpretation should be literally and historically based,[24] occasionally has seemed to stray into a progressivist hinterland of his own. Most notably in Wakim, he enunciates an open-textured constitutionalism which, while more cautiously expressed than the open revisionism of Kirby J, logically operates in similarly progressivist directions in self-consciously maximizing the range of constitutional choice open to the Court:
Many words and phrases of the Constitution are expressed at such a level of generality that the most sensible conclusion to be drawn from their use in a Constitution is that the makers of the Constitution intended that they should apply to whatever facts and circumstances succeeding generations thought they covered.[25]
Again in Eastman,[26] after a rather convoluted exposition of the task of constitutional interpretation that contained nods in the direction both of hard-line originalism and radical progressivism of the type espoused by Kirby J,[27] McHugh J stated:
Our Constitution is constructed in such a way that most of its concepts and purposes are stated at a sufficient level of abstraction or generality to enable it to be infused with the current understanding of those concepts and purposes. This is consistent with the notion that our Constitution was intended to be an enduring document able to apply to emerging circumstances while retaining its essential integrity.[28]
As will be suggested below,[29] the practical difference between this type of open-textualism and the overt progressivism of Kirby J often will be limited.
The reality, therefore, is that progressivism remains a significant feature of the High Court's current constitutional jurisprudence, and this situation is unlikely to change. Indeed, the rise of progressivism over the past decade from guiltily unstated premise to occasional cheerful avowal suggests that it will play an increasingly prominent part in Australian constitutional interpretation. It is, however, important to recognize that there are a wide variety of elements of constitutional interpretation that may be regarded as containing some element of progressivism, and that these range widely, from the relatively uncontroversial, to the type of dramatic constitutional activism espoused by Kirby J.
At its weakest and most modest level, progressivism may be regarded as comprehending such phenomena as the High Court's traditional utilisation of the connotation-denotation technique.[30] As noted above, this technique indisputably has permitted the continuous extension of the Commonwealth legislative power to moderately novel factual situations. On the other hand, its application is, at least in theory, strictly limited by virtue of the fact that the central idea of the provision in question—the connotation—is set by reference to the meaning of the relevant terms in 1900, and thus by reference to the historic intentions of the Founders.
At a slightly higher level of progressivism is the notion that, where a constitutional provision genuinely is ambiguous, it should be interpreted so as to produce the result most in accord with contemporary standards and values in Australia. Rarely overtly articulated, there is little reason to doubt that this technique is part of the interpretative armory of the High Court.[31] Moreover, cautiously and genuinely applied, it probably would arouse relatively little ire, even among moderate originalists. The difficulty that arises in this correction is not with the modernist resolution of admitted ambiguity, but with the concept of ambiguity itself: it will be all too easy for a right-minded Court to ritually determine ambiguity as a prelude to the application of its progressivist methodology.
This leads directly into the next and rather higher level of progressivism that would seem in practical terms to flow from a determined application of the 'open textualism' sometimes expounded by McHugh J. While there is room for doubt in view of some of his other pronouncements on the subject of constitutional interpretation that McHugh J actually would embrace the full implications of such an approach,[32] the logic of that methodology is that where constitutional provisions are to be seen as little more than equivocal capsules of indeterminate meaning, waiting to be filled by the understandings and expectations of current generations as identified by the High Court, any real distinction between liberal interpretation and open progressivism will be extremely tenuous. Such a distinction will lie, if anywhere, largely in the fact that it will be more difficult under such approaches as that of McHugh J to erect constitutional conceptions that are not directly attributable to some specific piece of constitutional language. An example would be the creation of further implied rights in such directions as equality.[33] It is with this type of open-textualism that one reaches the level of what might be termed 'strong' progressivism, whether or not those enunciating it have fully anticipated or would endorse its potential in this direction. This is a term that also may be applied to the two further variants of progressivism now considered, and it is this strong progressivism—and its place in the minds of the Founders—that is the subject of this article.[34]
A step further into the realm of strong progressivism lies what might be termed the 'extrapolatory' approach classically deployed by Deane J in association with his 'living force' analysis. Under this approach, contentious, highly generalised constitutional intentions ostensibly are deduced from the Constitution as a whole and the circumstances surrounding Federation, and from these are extrapolated such desired primary premises as that the Constitution embodies the central doctrines of the common law, together with the equally desired secondary proposition that the Constitution derivatively contains, for example, a right of equality.[35] The language of intention as used within this interpretative genre essentially is a device for the development of a progressivist judicial position that largely is unconfined by the requirement for textual support inherent in the approach of those such as McHugh J.
Finally, one comes to the bald, if straightforward, progressivism espoused by Kirby J, according to which it is the simple duty of the Court to read and re-read the Constitution in the light of contemporary circumstance, without any necessity to support what essentially are conclusions of policy by recourse to implausibly ascribed intentions on the part of the Founders. Even Kirby J acknowledges that the text of the Constitution will impose significant limits upon the course of such progressivism,[36] but if Australian legal history reveals anything, it is that constitutional text is highly manipulable.
In these circumstances of increasing judicial espousal of one or other of the strong versions of progressivism, it is entirely natural that corresponding attempts will be made by its proponents to furnish it with an acceptable theoretical base. Indeed the chief difficulty facing progressivism is the lack of an immediately obvious theoretical platform justifying its usage. In the absence of such a platform, the charges that progressivism simply is anti-democratic (on the basis that it usurps the power of popular amendment under s 128) and anti-constitutional (on the same grounds) are plausible ones, and the methodology easily is presented merely as an unprincipled series of decisions rendered according to the policy preference of the individual judge, the very charge so devastatingly levelled against the first High Court by Isaacs J in the joint judgment in the Engineers Case.[37]
It is in this context that progressivist judges and commentators have begun to claim an intentionalist lineage for progressivism. As stated earlier, if the Founders actually intended that the Constitution be interpreted progressively the claims of intentionalism can be accorded little weight, while progressivists can argue that they are doing no more than giving effect to the Founders' wishes. Such a claim has long been something of a staple of progressivist literature in the United States.[38] It thus hardly is surprising that the two unequivocal judicial exponents of progressivism cited above, Deane J and Kirby J, together with McHugh J as an at least occasional judicial apologist for a method of constitutional interpretation that tends to much the same practical effect as progressivism, all have based their claims for a progressive style of constitutional interpretation to some extent upon the assertion that such an interpretative methodology is firmly based in the interpretative intentions of the Founders.
So much is immediately and strikingly obvious of the comments of Deane J in Theophanous, where he elevates Andrew Inglis Clark to the status of a super-Founder, and attributes a (disputable) progressivist version of Inglis Clark's views on constitutional interpretation to the Founders as a whole.[39] Paradoxically, therefore, Deane J's 'living force' progressivism, with its dismissal of the Convention Debates and excoriation of the 'dead hand of the past', draws much of its theoretical validity from its assertion of a progressivist interpretative intention on the part of the Founders. The intermittent open-textualism of McHugh J is similarly dependent upon the Founders' intent. His argument, as expressed in such decisions as Wakim[40] and Eastman,[41] seems essentially to be that the Founders, mindful of the march of history, purposely filled the Constitution with highly generalised expressions of which they fully intended future generations to make what they would. Once again, a key component of McHugh J's argument thus is the proposition that the Founders intended this progressive approach to constitutional interpretation, with specific reference at one point being made to some useful comments of Sir John Downer from the Debates of the Convention at Melbourne in 1898.[42] Similarly, in the case of Kirby J, the articulation even of radical progressivism is given a vague intentionalist pedigree, with his Honour carefully observing not only that the Founders had no power to project their constitutional wishes and expectations indefinitely into the future, but also that '[t]he makers did not intend ... [to do so]'.[43]
Corresponding efforts have been made by progressivist and quasi-progressivist commentators. For example, writing after his retirement as Chief Justice, Sir Anthony Mason observed of an 'evolutionary' (ie a moderately progressive) interpretation of the Constitution that it was based upon the notion that the Founders intended that at least parts of the Constitution would 'evolve' over time, on this occasion citing Alfred Deakin himself in support.[44] Kirk, also writing in support of a moderate version of progressivism that he terms 'evolutionary originalism', cautiously observes that it cannot be pre-supposed that the Founders intended the application of a 'purely originalist approach',[45] and draws upon the Convention Debates to suggest that at least Isaacs, Higgins and Cockburn might have acknowledged the possibility and 'perhaps the desirability' of a wider approach.[46] Crawford has suggested that the Founders may have been quite comfortable with the type of open-textualism later advanced by McHugh J 'on the basis that the text deliberately left room for expansion and development to meet future needs.'[47] Donaghue, in doubting that the Founders were strict originalists, cites the comments of Downer in the Convention Debates as evidence of contemporary support for a wider interpretative approach,[48] while Thomson refers to the comments of Isaacs in pondering whether the 'original intention may itself indicate that (judicial) interpreters are not to be confined to the framers' intentions and meanings.'[49] Unsurprisingly, these attempts to furnish progressivism with an acceptable historical and intentional pedigree have not met with the approval of commentators more tolerant of intentionalism. Craven,[50] Patapan[51] and (implicitly) Goldsworthy[52] all look askance at any suggestion that the Founders intended that the Constitution be interpreted from a progressivist perspective.
It thus is apparent that the intentionalist credentials of progressivism are an important component in the wider debate over that constitutional methodology. It should be noted that, thus far, judicial and extra-judicial statements upon this issue have not been grounded in any real degree of detailed historical analysis. Rather, they have been much more shallowly based, on general historical impression (Kirby, Craven); isolated historical instances (Deane, McHugh, Donaghue, Mason, Thomson) or relatively limited analyses of historical materials (Crawford, Kirk). What is attempted here is a rather deeper foray into a number of historical resources, with the first of these being the Convention Debates.
Any analysis of the Convention Debates on the issue of progressivism[54] needs to begin with the identification of a number of what might be termed 'structural' considerations which should be regarded as militating against any too-ready assumption that the Founders favoured progressive (or at least strongly progressive) interpretation of the Constitution. These considerations do not as such prove that the Founders were opposed to progressivism, but do pose a threshold of plausibility that must be crossed by modern-day historical apologists for that phenomenon.
The first of these considerations is that it is not unreasonable to assume in respect of any legislative document that, in the absence of strong contrary evidence, those who framed it regarded that document as broadly dispositive, in the sense that its terms were to be applied to circumstances, persons and things according to the intentions of the drafters as conveyed by the language they employed, and not by reference to the unspecified insights of future interpreters. Such is the standard approach to the interpretation of ordinary Acts of Parliament.[55] True, the circumstances of constitutions are special, and those of the Australian Constitution very special indeed, but the rebuttable presumption that the Founders meant what they meant and meant what they wrote is a fair starting point.
Second, and following from this, the Commonwealth of Australia Constitution Act 1900 is an Act of the Imperial Parliament, albeit an unusual example of such an Act. The ordinary rules for the interpretation of Imperial Acts were well known to the Founders as embodying a general approach of textual intentionalism,[56] and thus were highly unsympathetic to a progressivist methodology, notwithstanding the accepted doctrine that constitutions (and especially constitutional powers) were to be interpreted 'broadly'.[57]
Third, the overwhelming determination of the Founders in respect of the High Court was that it should be the custodian of federalism, and crucially, that it should protect the states.[58] This notion of the Court as on-going constitutional protector of the states, together with the Founders' constant concern to protect states' rights under the Constitution, is difficult to reconcile with any vision of the same Court as a progressivist entity that can decide which aspects of the Constitution (including those protective of the positions of the states) are or are not of contemporary relevance.
Fourth, the Founders' determination that the Constitution not be the subject of excessively easy amendment, and in particular that no alteration of the Constitution should take place without popular endorsement by the electors of both the Commonwealth and the states,[59] obviously sits uncomfortably with any argument that they cheerfully contemplated an interpretative method that effectively would comprise on-going, extensive judicial adjustment of the Constitution.
Fifth, the entire approach of the Founders to the drafting of the Constitution, involving as it did a long drawn out, fiercely debated, pain-staking and sometimes painful series of attempts to formulate constitutional language applicable to the raft of issues facing federating Australia, does not readily suggest a group of legislators comfortable with the idea that their hard-won concessions and compromises could be judicially revised.
Finally, the essentially progressivist idea that the Constitution produced by the Founders represents little more than series of generalised guidelines for the future[60] clearly is over-stated in the face of the reality of the text. Putting aside the necessarily broad expression of the Commonwealth's legislative powers—and even here, 'foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth'[61] clearly is a quite different power in spirit than one simply with respect to 'corporations'—much of the Constitution is drafted in a degree of detail that seems to preclude extensive judicial supplementation.[62]
The result is that any analysis of the Debates themselves with a view to demonstrating on the part of the Founders a predilection towards progressivism must be undertaken against this rather less than propitious background. In particular, the significance of isolated statements which might be thought to favour such a conclusion must be carefully assessed within this wider historical and conceptual framework.
What, then, are the general impressions to be drawn from the Debates in this context? The first broad point must be that there are indeed a number of contributions from individual Founders reflecting upon the future role of the High Court in the interpretation of the Constitution, and doing so in a manner that reveals at least some element of progressivist thought. Previous considerations of the Debates on this point have not been particularly detailed, and sometimes have focused upon glancing comments that were not specifically directed to the issue of constitutional methodology.[63] However, a small but significant group of Founders did explicitly address the particular question of constitutional interpretation, including among their number Dobson,[64] Downer,[65] Symon,[66] Glynn,[67] and Barton.[68] Overwhelmingly, these comments were made in the context of discussion of what was to become the Judicature Chapter of the Constitution during the Melbourne session of the Convention in 1898, although there also were isolated comments during the debate on the general resolutions at both Sydney in 1891 and Adelaide in 1897, and one important intervention (that of Glynn) came during debate on the amendment clause at Melbourne. Admittedly, most of these comments were confined, and their exact import often uncertain. Nevertheless, at least Downer, Isaacs and Symon each made significant interventions that might be regarded as furthering the historical claims of progressivism, while Glynn made a little-known but important speech in precisely the opposite direction. All of these major contributions are analysed in detail below.[69]
A second observation is that virtually all of the 'progressivist' contributions from the Debates bear the very obvious mark of Lord Bryce and his near adulation of the Supreme Court of the United States and its great Chief Justice John Marshall.[70] Bryce regarded the Supreme Court as the chief and benevolent means of constitutional amendment in the United States, elevating Marshall to the status of 'a second maker of the Constitution', and referring rapturously to his 'majestic intellect' and the 'elevation of his character', while praising his judgments for their 'philosophical breadth' and 'luminous exactness'.[71] To Bryce, however much Americans might 'shut their eyes... and conceal the reality of change under the continued use of time-honoured phrases',[72] it was the Supreme Court that directed the constitutional future of the United States. The general influence of Bryce upon the deliberations of the Conventions is well known,[73] but his markedly progressivist views in relation to the United States Supreme Court clearly affected the mind-set (or at least the rhetoric) of some of the Founders. Echoes of Bryce are particularly obvious in the contributions of Symon (who likewise eulogises Marshall for introducing judicial flexibility into the United States Constitution),[74] Isaacs (who singles out for praise not only Marshall but also Jay and Storey)[75] and Downer (who also is deeply impressed by the contribution of Marshall).[76]
A third general point is that the existence of what amounts at least to progressivist tendencies on the part of some of the leaders among the Founders undeniably is striking, particularly when they are first assembled together from out of the swirling depths of the Debates. Indeed, the existence of these statements in the face of the negative structural considerations identified above, and against traditional assumptions concerning the interpretative expectations of the Founders, only serves to emphasise—even to the most dedicated originalist—their somewhat singular contents. Committed literalists might be even more off-put: there is remarkably little evidence in the Debates that the Founders were committed to a strict Engineers-style literalism. On the contrary, not only those Founders seemingly inclined towards some version of progressivism,[77] but also a number of others,[78] appeared to envisage a style of constitutional interpretation that drew heavily upon the spirit of the Constitution, and was not confined to the four squares of the document itself.
All of these general observations might be regarded as tending in the direction of suggesting that the Debates as a whole have a progressivist flavour. Other equally general factors, however, undermine any such conclusion. First, as will be seen, while collected together the arguably progressivist statements in the Debates seem to have a certain mass, they are in context vastly less impressive. The somewhat depressing truth from a lawyer's perspective is that the judicial provisions of the Constitution as a whole were of relatively limited interest to the Founders: Deakin was later to observe that they were in 'an even more imperfect form' than their financial equivalents.[79] The result is that, notwithstanding the fascination of the present High Court with all aspects of Chapter III, discussion on the whole topic of the judiciary throughout the six fat volumes of the Debates does not represent much more than 250 out of their around 6000 pages. Even within this limited debate, only three out of the 78 delegates who served in the Conventions between 1891 and 1898 made interventions that contain even a serious hint of progressivist tendencies. Were all of these interventions to be combined, they might comprise a single page of the debates. No progressivist contribution can be discerned on the part of such leading and well-informed members of the Convention as Barton, Griffith, Clark, Deakin (remarkably, in view of his later comments on the Judiciary Bill),[80] O'Connor, Higgins, Wise or Quick. The statements fondly quoted out of the Debates by modern-day progressivists are, in terms of representativeness, a drop in the ocean.
A further general note of caution that must be sounded in relation to these statements concerns two issues of context. First, as will be seen, virtually all occurred within debates where those making them were critically concerned to stress the importance and claims of the future High Court with a view to protecting it against those who would reduce its status. Thus, the apparently progressivist statements of Downer[81], Isaacs[82] and Symon[83] all were made in support of the High Court during a rather tense debate over the desirability of its permanent constitutional establishment, which included considerable discussion as to the likely relative merits of the Court, the Privy Council and the state Supreme Courts. The consequence of all this is that there was an obvious potential for supporters of the Court to exaggerate the centrality of its role. Secondly, and following from this, their context imparts to each of these statements the profound imprecision inherent in oratory: while they may well be progressivist in tone, it typically is difficult to determine exactly what level of progressive constitutional interpretation is being advocated, and, in particular, whether they are intended to convey much more than an endorsement of what today would be termed the technique of connotation-denotation.
Finally, these strands of progressivism from the Debates need to be placed firmly in the context of those matters concerning the High Court that undeniably were a subject of fundamental interest and constantly recurring discussion by the Founders. Outstanding among these was the near obsession of the Founders that the High Court should act as a guardian of federalism and the states, a matter beside which any hint of tolerance for progressivism fades into insignificance.[84] It was this unqualified determination that the High Court should safeguard states' rights, a determination that, as has been noted, sits uneasily (if at all) with a progressivist methodology, that constantly was articulated by the Founders, including some of those apparently most inclined towards constitutional activism by the Court. Indeed, it was this primary conception of the Court as upholder of the federal balance that produced such embarrassingly unfashionable speculations in the Debates as those concerning the future capacity of the Commonwealth to stack the High Court bench in its own interest,[85] and the potential pro-Commonwealth bias of High Court judges.[86] Thus, if the Debates contain hints of progressivism, and they do, they veritably celebrate the High Court as protector of the states, and the relative importance of these two topics in the minds of the Founders needs to be fully appreciated in appreciating the role envisaged by them for the Court. All of these broad considerations need to be kept in mind in assessing the weight and meaning of the individual contributions now addressed.
When assertions of a progressivist intention on the part of the Founders are made, perhaps the most often cited Convention delegate is Sir John Downer.[87] The relevant comments occurred during a speech against an amendment to what was to become s 71 of the Constitution, proposed by the Legislative Council of South Australia. The basic thrust of the amendment would have been to make the continued existence of the High Court (and indeed, the subsistence of significant portions of the judicial settlement contained in Chapter III) dependent upon the will of the Commonwealth Parliament.
After an entirely typical defence of the High Court on the grounds that it would be a principal bulwark of states rights,[88] Downer went on to stress the dignity and importance of the Court by characterizing its judges as:
[T]he men who will have the greatest part in forming this Commonwealth ... although we form it in form, they form it, to a large extent, in substance. With them rest the vast powers of judicial decision, in saying what are the relative functions of the Commonwealth and of the States. With them rest the interpretation of intentions which we may have in our minds, but which have not occurred to us at the present time. With them rests the obligation of finding out principles which are in the minds of this Convention ... and applying them to cases which have never occurred before, and which are very little thought of by any of us.[89]
After re-emphasising his principal theme of the High Court as protector of the states,[90] Downer went on to assert the inevitability of constitutional unclarity and the consequent need for judicial interpretation, observing that 'there may be some circumstances for which, with all our ingenuity, we shall be unable to provide.'[91] In the meantime, Downer believed 'we have to do the best we can to make matters so clear that there need be no necessity to go to courts.'[92]
What is one to make of this contribution? Clearly, it represents a relatively fluid approach to constitutional interpretation, and on its strength constitutionalists prepared at least to flirt with progressivism such as Donaghue and (on occasions) McHugh J[93] are inclined to identify Downer as some form of proto-progressivist. A thorough analysis of his words, however, reveals the weakness of such a claim. In the first place, Downer's speech is heavily intentionalist in flavor. He speaks of the Court interpreting the 'intentions' of the Founders, twice refers to what the Founders had in their 'minds', and again to the 'thoughts' of the Founders. Whatever else Downer was contemplating, it apparently was none of the stronger versions of progressivism, divorced as they are from genuine historical intent. Consistently with this, what emerges most plausibly from Downer's words is not support for strong progressivism, but a willingness to embrace the relatively uncontroversial technique of connotation–denotation. This seems the most sensible rendering of his reference to 'finding out the principles' and 'applying them to cases which have not occurred before', words which appear logically to be a paraphrase of his own previous rather opaque reference to interpreting intentions which had not yet occurred. On this analysis, Downer is no more a progressivist than any High Court judge who has applied the connotation–denotation distinction.
This conclusion is reinforced by other factors. Downer's comments quite literally are bracketed by his strong (and habitual) references to the High Court as indispensable guardian of the states, a position which (as has been noted)[94] does not sit at all easily with one of strong progressivism, though it certainly is consistent with a moderate application of connotation–denotation. Perhaps most tellingly of all, the plausibility of Downer's speech at Melbourne in 1898 as a progressivist apologia is seriously undercut by an overlooked contribution made by him at the Sydney Convention in 1891. There, in arguing for an enhanced right of appeal from the High Court to the Privy Council, Downer revealed a far less benign view of the Court as constitutional interpreter:
it occurred to me that if the federal judicature were the only tribunal to decide finally what authority the federal government had, then the federal parliament might go beyond what was contemplated—beyond the provisions of the statute creating it, and by the power of judge-made law and judicial construction extend the original intention and the ambit of jurisdiction, as undoubtedly Chief Justice Marshall did in America, as it happened in that case, to the infinite benefit of the republic.[95]
Notwithstanding the obligatory flattering reference to Chief Justice Marshall, which is itself strictly confined to the particular circumstances of the United States, Downer's remarks plainly are suspicious, rather than supportive of High Court constitutional activism. Unsurprisingly in view of the generally states-protective positions taken by him during the two Conventions, he emerges in this passage as particularly intolerant of progressive interpretation that would operate against the Court's fulfilment of its role as guardian of the states. Clearly, when this earlier contribution by Downer is placed beside his comments at Melbourne, their already thin credentials as a declaration of strongly progressivist inclination are stretched still further.[96]
If Sir John Downer is not to be made to carry the banner for progressivism at the Conventions, the next most logical choice must be Sir Isaac Isaacs, whose statements at the Melbourne session of the Convention sometimes are referred to in this connection as betraying a more fluid approach to constitutional interpretation.[97] Again speaking against an amendment proposed by the Legislative Council of South Australia to the forerunner of s 71 that was highly antipathetic to the status of a future High Court, and within a debate where that institution was the subject of unflattering comparison both to the Privy Council and the state Supreme Courts, Isaacs was at pains to stress the centrality of the Court to the whole scheme of Federation in the following terms:
We are taking infinite trouble to express what we mean in this Constitution; but as in America so it will be here, that the makers of the Constitution were not merely the Conventions who sat ...but the judges of the Supreme Court. Marshall, Jay, Storey, and all the rest of the renowned Judges who have pronounced on the Constitution have had just as much to do in shaping it as the men who sat in the original Conventions.[98]
It is quite clear from this statement that Isaacs was well aware and admiring of the amplificatory constitutional work of the United States Supreme Court, and had a lively appreciation of the undeniable reality that the shape of the Australian Constitution would be strongly influenced by judicial interpretation. His statement is, on its own terms, rather more strongly progressivist than that of Downer. Nevertheless, to attempt to treat it as a close ancestor of the radical progressivism of a Deane J or a Kirby J is to draw a very long bow indeed.
The starting point again must be to place the speech within its context. Isaacs, like Downer, was seeking to defend the institution of the federal judiciary from those who sought to downgrade its future and status, and to this end was making every effort to emphasise its constitutional importance by expansively delimiting its role as interpreter of the Constitution. The quoted portion of his speech is strongly rhetorical, markedly so in the case of a Convention delegate much better known for his pedantic logic than flights of Deakin-esque oratory. In any event, even taking his words at face value, while Isaacs clearly contemplates an element of dynamism in the process of constitutional interpretation, there is little to suggest that he had in mind some strong form of progressivism, as opposed to such less radically expansive constitutional techniques as connotation and denotation, or perhaps the progressive resolution of constitutional ambiguity.
Moreover, whatever sympathy is displayed by Isaacs towards progressive constitutional interpretation, this passage is much more closely directed to the past American, rather than toward any future Australian, judicial experience. Thus, the central import of his remarks is not that progressivism is a good (or bad) thing but that, to the extent that Australian constitutional conditions parallel those of the United States, some element of progressive interpretation would prove unavoidable. This is an important point, as on a number of occasions during the Convention Debates, Isaacs made it very clear that he regarded Supreme Court activism in the United States as the inevitable consequence of the practical impossibility of amending the United States Constitution, while also expressing the view that the process for the amendment of the Australian Constitution would not be similarly frozen.[99] Consequently, the plausibility of Isaacs' comments as an endorsement of progressivism in an Australian context is seriously reduced when it is understood that they only can be so interpreted if one accepts that Isaacs regarded the Australian Constitution as beyond amendment in the same manner as that of the United States Constitution, which he patently did not.[100]
Consequently, while Isaacs obviously discloses some tolerance towards a progressive approach to constitutional interpretation, particularly in an American context, his speech to the Convention certainly does not reveal him as a thoroughgoing progressivist in his conception of the Australian Constitution. This conclusion is consistent not only with some of his other contributions to the Convention, where he displayed a certain wariness of the United States Supreme Court as the alleged 'master of the constitution',[101] and as the victim of undesirable manipulation by executive appointment,[102] but also with his complete failure to adopt a progressivist stance during debate on the Judiciary Bill[103] and his adamantine literalism as a High Court Justice.[104] Put simply, Isaac Isaacs is not a plausible candidate as a Founding progressivist.
The last major contribution to the Debates that arguably could be regarded as revealing a real commitment to progressivism is that of the highly intelligent and equally querulous Sir Josiah Symon. Symon was a major participant in debates upon judicial topics at the Conventions, and was a dedicated admirer of the United States Supreme Court. In Adelaide in 1897, during the opening debate on Barton's general resolutions, Symon observed that the High Court would be charged with the interpretation of the Constitution, '...the most noble as well as the most distinctive feature of the Constitution of the United States'.[105] He went on to praise extravagantly the work of the United States Supreme Court, in the process drawing a supportive intervention from Barton.[106] In 1898, in Melbourne, Symon pursued a similar theme. Arguing strongly against any extended right of appeal from the High Court to the Privy Council, Symon approvingly quoted Bryce on the work of Chief Justice Marshall:
That admirable flexibility and capacity for growth which characterize it (the American Constitution) beyond all other rigid or supreme constitutions is largely due to him, yet not more due to his courage than to his caution.[107]
Symon had already scathingly criticised the Privy Council's interpretation of the constitutional instrument of the Canadian federation, the British North America Act 1867 (Imp):
they are guided by a more rigid adherence to what is literal, as though they were interpreting simply an Act of Parliament, rather than by a regard for those great constitutional principles which throw light upon and assist in the interpretation of a Constitution.[108]
Symon's comments are of considerable interest, partly because they reveal a developed view to the effect that constitutions should be interpreted not 'literally' but by reference to fundamental principles, and partly because his subsequent comments in the Commonwealth Parliament during debate on the Judiciary Bill indicate that, of all the Founders (including Deakin), Symon may have come closest to espousing a genuinely strong progressivist position.[109] Yet even in his case, an analysis of Symon's contributions to the Convention Debates provides only modest evidence of a progressivist position.
Thus, while his reference to 'great Constitutional principles' may to a modern ear herald some of the 'living force' reasoning of those such as Deane J, such terminology would be equally if not more aptly applied to the implicatory approach of the first High Court, with its fundamental constitutional doctrines of reserved powers and implied immunities. Again, Symon's references to the work of the Supreme Court of the United States in expanding that country's Constitution clearly are highly laudatory, yet Symon—a notedly belligerent delegate from the small colony of South Australia—was paradoxically fixated upon the necessity that the High Court rigorously should protect the interests of the states, a constant theme in his addresses to the Convention.[110] Consequently, whatever else Symon may have believed concerning the latitude to be accorded the High Court in constitutional interpretation, it is very difficult to imagine that in 1898 he would have countenanced a progressively-inspired diminution of state powers of the type accomplished in such decisions as the Tasmanian Dams Case. Finally, Symon's comments, like those of Downer and Isaacs, are heavily conditioned by their context: he was vitally concerned to limit appeals from the High Court to Privy Council, and correspondingly disinclined to deprecate that Court's future constitutional role.
Pausing here, it may be observed that, after an assessment of the contributions to the Convention Debates by the three principal candidates for designation as a progressivist Founder, the argument that the Debates disclose a significant progressivist agenda is desperately weak. Neither Downer, Isaacs nor Symon confidently may be pointed to as a strong progressivist on the basis of their speeches to the Convention. As demonstrated, all of their speeches are subject to external and internal factors that seriously undercut their credentials as expositors of progressivism. Beside this conclusion also must be set the utter lack of statements sympathetic to a progressive methodology by such key figures as Barton, Griffith, O'Connor and even Inglis Clark and Deakin. Finally, it is somewhat striking that those searching for a historical basis upon which to ground progressivism have overlooked a highly significant contribution to the Debates that is sternly critical of any move by the Court in that direction.
This was the contribution at Melbourne in 1898 by the Galway-born South Australian delegate Patrick McMahon Glynn. Interestingly, unlike the other speeches referred to here, this was delivered not during debate upon the judiciary clauses of the Constitution, but on its amendment provision. In other words, progressivism was being considered not primarily as a judicial activity but as a potential means of altering the Constitution, which is of course the reason for its fundamental constitutional relevance. Glynn's essential argument was that unless the Australian Constitution were sufficiently flexible on the point of amendment, the High Court inevitably would fill the constitutional vacuum thus created by the making of judicial amendments. He based his argument closely upon American experience, and in so doing was far less adulatory of the Supreme Court and Chief Justice Marshall than many of his colleagues. Thus, Glynn asked:
What will be the result if we do not make more elastic provision for the amendment of the Constitution? We are creating a Judiciary which will become legislators.[111]
Referring to the activities of such judges as Marshall in the 'expansion' of the Constitution 'necessitated by the changed conditions of the people', Glynn described them as '...manifest evils of the difficulty of the restricted power of amendment.'[112] There must have been some grinding of teeth in the Bryce-soaked Convention when Glynn went on to cite Jefferson's famous critique of the American federal judiciary '...in the enlargement of its powers, advancing with noiseless steps, like a thief, over the field of jurisdiction.'[113] Glynn went on to make his own view of judicial progressivism in a specifically Australian context crystal clear:
We ought not to create the evil of making the Judges not merely interpreters, but the extenders of the Constitution, and we ought to give the Constitution such a degree of elasticity as will render it capable of being moulded to the changed conditions as time goes on, and prevent the dangerous alternative of judicial expansion.[114]
Glynn's contribution quite obviously represents an attack on progressivism in terms vastly stronger and clearer than any of the speeches supposedly supportive of that approach. Thus, there can be no question that Glynn is unequivocally opposed to a future progressive High Court, and that he rejects the precedent of a constitutionally active American Supreme Court. Indeed, his contribution is such a classical repudiation of progressivism that, notwithstanding his penchant for elaborate historical allusion, it would not seem out of place if uttered within contemporary Australian constitutional debate. It is true, of course, that Glynn's speech is colourful and rhetorical, and just as Symon and Downer arguably inflated the importance of the Court with a view to protecting the judicial provisions of the Constitution Bill, so it is arguable that Glynn magnified his fears as to its future mode of operation in the interest of securing a more flexible power of amendment. What remains striking about his contribution, however, is that even allowing for an element of tactical exaggeration, he clearly regarded judicial progressivism as an eventuality to be avoided at all costs.
The general conclusion concerning evidence of progressivism to be derived from the Convention Debates therefore must be that any such evidence is extremely thin. Certainly, there is no material to support a view that the Debates reveal a significantly progressivist mindset among the Founders, or even among a substantial number of them. The most that can be said is that a small number of Founders make relatively isolated statements which, when viewed in isolation, might be regarded as containing appreciably progressivist strands. However, when these statements are analysed carefully and in context, they are at best highly equivocal on the point of progressivism. Against these ambiguous statements must be placed the brutally clear anti-progressivism of Glynn.
Perhaps the crucial point in this context is that none of these vaguely progressivist statements conceivably could be regarded as overcoming the constitutional burden of proof imposed by the hostile structural considerations previously identified.[115] More than an admiration for the work of John Marshall and imprecise references to 'shaping' and 'forming' the Constitution would be required to harmonise an adherence by the Founders to some concept of strong progressivism with their habitual pre-occupation over such fundamental constitutional imperatives as the protection of the states, maintenance of the federal balance, constitutional alteration by dual popular will and so forth.[116]
Of course, this is not to say that the contributions of Downer, Isaacs and Symon do not involve some element of progressivist constitutional thought. However, what emerges most clearly from these contributions is far removed from the robust progressivism articulated in some contemporary judicial and academic quarters. Rather, the 'progressivist' contributions of the Founders considered here are most obviously consistent with an interpretative approach that, in its degree of expansiveness, would excite little comment from any Australian constitutional observer since Federation. That approach would comprise a recognition that constitutions are to be read more broadly than other statutes—hardly a controversial proposition—together with an acceptance of correspondingly generous techniques of constitutional construction, such as the existence of an implied incidental power, and the application of the technique of connotation–denotation. The tendency of modern authorities to discern in the Founders' relatively mundane formulations of a liberal interpretative approach, the exciting presence of strong progressivism or something approaching it, is one that is noted at a number of points in this article.[117]
Perhaps unsurprisingly for a group most of whose members were involved in the difficult establishment phase of a new nation in the years immediately after Federation, Australia's Founders produced relatively few reflective pieces that dwelt upon the arcane process of constitutional interpretation. With one or two clear exceptions, therefore, there is little to be extracted from their formal post-Convention writings upon the issue of progressivism.
Typically, the writings of the Founders show no obvious sympathy towards progressive interpretation by the High Court. Extending the analysis to writing produced before Federation, neither of the two constitutional primers produced specifically for the use of delegates to the Conventions—Baker's Manual[118]and Garran's Coming Commonwealth[119]—contain the least advocacy for a progressivist position. The great bible of Australian constitutional law, Quick and Garran's Annotated Constitution of the Australian Commonwealth, written by one of the leading Founders and the Secretary to the Drafting Committee of the second Convention, is similarly unsupportive. In a highly conventional analysis, Quick and Garran make the usual points concerning the need to interpret a constitution broadly and liberally,[120] but the entire emphasis is on the interpretation of the Constitution, having regard to its special objects, as an Act of the British Parliament.[121] No breath of progressivism emerges, although Sir Robert Garran, after a distinguished career as a servant of the Commonwealth, later was to be understandably tolerant of the High Court's extension of Commonwealth power.[122] Quick and Groom's The Judicial Power of the Commonwealth likewise does not contain any hint of progressivism in its analysis of constitutional interpretation.[123]
Similar comments may be made of other pieces of sustained writing by the Founders. Nothing in Higgins' The Australian Commonwealth Bill[124] advances the cause of progressivism. Silent also is Deakin's The Federal Story.[125] Cockburn's Australian Federation[126] does not advert to the possibility of progressive interpretation, something also true of Wise's The Making of the Australian Commonwealth.[127] Indeed, the chief purpose of this litany of disinterest must be to demonstrate that post-Federation writings by the Founders that are progressively flavoured are very much the exception, rather than the rule.
This brings us to the case of Andrew Inglis Clark. Inglis Clark appears to be the only Founder to have written at some length in favour of a form of progressivism. Despite the fact that he was a not a major figure in the federal movement after the 1891 Convention, and was not even a delegate to the second Convention that met between 1897 and 1898, Inglis Clark has achieved a contemporary constitutional significance chiefly by virtue of his identification by Deane J in Theophanous as the pre-eminent figure among the Founders on the issue of constitutional interpretation.[128] That identification was made overwhelmingly on the basis of Inglis Clark's congenial comments on the process of constitutional interpretation contained in his book Studies in Australian Constitutional Law published in 1901.[129]
These comments certainly reveal Inglis Clark as being progressively minded, although as will be seen, his degree of enthusiasm for that methodology can be greatly overstated. Unquestionably, Inglis Clark was a passionate admirer of the United States Constitution and that country's Supreme Court, and his attachment to progressivsm seems to have been influenced heavily by this fact.[130] Inglis Clark's comments concerning progressivism appear in the context of a long and thoughtful discussion of judicial interpretation of the Constitution, by no means all of which is progressivist in tone. During that discussion, for example, Inglis Clark makes numerous uncontroversial comments concerning the interpretation of the Constitution as a British statute, and the functioning of constitutional courts of appeal.[131]
The passages which excite modern progressivists, however, are considerably more striking. Inglis Clark argued that:
the social conditions and the political exigencies of succeeding generations of every civilized 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, and who cannot have anticipated the problems that would arise for future generations 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.[132]
After referring approvingly to the work of the Supreme Court in the United States, Inglis Clark concluded by quoting the words of Cooley[133] in relation to the American Constitution, and applying them to its Australian counterpart:
as the people change, so does their written constitution change also: they see it in new lights and with different eyes; events may have given unexpected illumination to some of its provisions, and what they read one way before they read in a very different way now.[134]
Clearly enough, Inglis Clark's comments suggest a degree of sympathy for progressivism unparalleled by anything in the Convention Debates, and as such have been seized upon eagerly by latter day progressivists as historical support for their position. As Goldsworthy has noted,[135] however, a closer analysis of those comments suggests that Inglis Clark's position was considerably less favourable towards a strong version of progressivism than those such as Deane J have maintained. In the first place, Inglis Clark's comments are subject to significant intentionalist qualifications. Immediately after his much-quoted 'living force' passage, Inglis Clark goes on rather to spoil the progressivist effect by writing:
But so long as the present possessors of sovereignty convey their commands in the language of their predecessors, that language must be interpreted by the judiciary consistently with a proper use of it as an intelligible vehicle of the conceptions and intentions of the human mind, and consistently with the historical associations from which particular words and phrases derive the whole of their meaning in juxtaposition with their context. (emphasis supplied)[136]
This is the terminology, not of progressivism, but of historically conditioned intentionalism. Perhaps even more pointedly, in a passage that preceded those quoted, and one not cited by Deane J in Theophanous, Inglis Clark opined:
It has been repeatedly stated that the fundamental rule for the interpretation of a written law is to follow the intention of the makers of it as they have disclosed it in the language in which they have declared the law.[137]
Again, this is conventionally expressed constitutional intentionalism. Inglis Clark goes on to consider the application of this rule in the context of unforeseen developments in terms that likewise are deeply respectful of the historical and intentional genesis of constitutional terminology:
In many cases it will be perfectly evident that the particular act or the particular set of circumstances in respect of which the question is to be determined could not have been in the contemplation of the makers of the law, and therefore it cannot be said, in the strictest sense of the words, that the makers of the law have expressed any intentions in regard to the matter. In every such case it becomes necessary to apply to the language of the law a method or process of interpretation which is usually described as construction, and which consists in examining the law for the purpose of ascertaining whether it is such as we may reasonably believe the makers of the law would have regarded as sufficient to embrace the particular act or set of circumstances in question if it had been foreseen by them.[138]
These passages, quite as much part of Inglis Clark's approach to constitutional interpretation as those cited by Deane J, sit very ill with the claim that Inglis Clark was a doctrinaire progressivist. On the contrary, they are couched more in the language of a liberal intentionalist comfortable with the technique of connotation-denotation, and Inglis Clark's 'progressivist' comments must to this extent be read with extreme caution. Indeed, on one analysis, they may represent little more than a somewhat oratorical exegesis of quite pedestrian views in favour of the expansive, but historically faithful interpretation of constitutional terminology.
Secondly, Inglis Clark quite obviously stresses the primacy of formal constitutional amendment, as opposed to judicial revision, as a means of altering the Constitution. Thus, even the most progressivist passage of his work refers to 'the present inheritors and possessors of sovereign power, who maintain the Constitution and have the power to alter it' (emphasis supplied).[139] Indeed, Inglis Clark's reference to the Constitution as a 'living force' is connected directly to this celebration of popular amendment of the Constitution. In other words, to Inglis Clark, the living force of the Constitution was expressed through popular amendment, not judicial alteration. It thus is ironic that his 'living force' imagery should be advanced as a rhetorical device in favour of one of the cruder forms of judicial progressivism.
The ultimate conclusion to be reached in relation to Inglis Clark, therefore, is that while he clearly favoured an expansive approach to constitutional interpretation, his adhesion to some strong form of constitutional progressivism is quite uncertain. While Inglis Clark clearly would have had little difficulty in stretching the central idea contained within a Commonwealth power to embrace new developments within its genre, there ironically is good reason to suppose that he would have looked askance at the extrapolatory progressivism of his modern-day champion, Deane J. Thus, even without entering into a debate about Inglis Clark's claim to rank as 'primary architect of our Constitution'[140]—as noted, he did not even attend the second Convention, and was highly atypical among the Founders in his depth of attachment to and knowledge of the United States Constitution[141]—it is apparent that his work hardly provides a strong basis for the attribution of a progressivist intent to the Founders.
In fact, arguably the most persuasive evidence in immediately post-Federation constitutional writing of a tolerance for strong progressivism comes not from among the ranks of the Founders themselves, but from an academic contemporary. William Harrison Moore was Dean of Law at the University of Melbourne, and was not deeply involved in the drafting of the Constitution.[142] However, his Constitution of the Commonwealth of Australia, published in 1902,[143] was an authoritative early work on Australian constitutional law. Writing generally of the judicial power contained in the Constitution, Harrison Moore observed that the tendency in the Conventions, based on the benign experience of judicial review in the colonies, had been to exaggerate rather than to underrate the controlling power of the courts.[144] He went on:
In general, the power was regarded with singularly little jealousy or suspicion, a phenomenon entirely in accord with the tendency of the day to submit to judicial authority problems which are more economical or political.[145]
This seems to suggest that Harrison Moore regarded the Founders as conscious progressivists, although the impression is somewhat undercut by his later, rather hopeful statement, that alteration of the Australian Constitution would be so easy that its development would be much less guided by judicial interpretation than had been the case with the United States Constitution.[146]
Nevertheless, Harrison Moore was to elaborate upon his theme. Writing towards the end of his life, and admittedly after having observed nearly thirty years of the interpretation of the Constitution by the High Court, he was to observe in a strikingly modern vein that the Constitution 'can be little more than a framework of government ... its vigour lies peculiarly in its acceptance by the people.' [147] He went on to argue that:
A constitution, brief and allusive, with its background of history, practice and principles of government, presents to the judiciary a task which, while it is in form the interpretation of a statute, is in substance comparable with the development of the common law, wherein the courts are avowed conditores juris.[148]
In terms that would warm many a modern judicial heart, Harrison Moore concluded that, in interpreting the Constitution, judges should follow the practice of the great Marshall and 'mingle with the lawyer's vigour the statesman's breadth of view'.[149]
This notion of the Constitution as little more than a set of guiding principles to be developed in much the same way as the common law is strikingly and unmistakably progressivist in a way that even the strongest statements of Inglis Clark, read in context, definitively are not. Harrison Moore's usefulness in demonstrating a progressivist intention on the part of the Founders is, however, strictly limited by two obvious factors. First, he was not himself a 'Founder'. He was not a delegate to the Conventions, took no part in their debates, and was not directly engaged in the drafting of the Constitution. His comments concerning the intentions of the Convention thus are those of an informed academic commentator, but no more. Certainly, his belief that the Convention was uniformly benign towards the pretensions of an activist judiciary sits ill with some contributions to the Debates that already have been noted.[150] Secondly, Harrison Moore's advocacy of progressivism is much stronger in 1933 than in 1902. It is a not unreasonable inference that his later comments were as much influenced by the actual practice of constitutional interpretation in years after Federation, and particularly the continuous expansion of Commonwealth legislative power by the High Court, as by any conviction as to the intentions of the Founders on the subject.
The conclusion after an admittedly brief survey of some of the more considered writings of the Founders on the subject of constitutional interpretation therefore must be that it demonstrates no strong support for a progressivist methodology. Generally, the Founders' statements on the topic are conservative and unremarkable, as exemplified in the treatment of Quick and Garran. Only Inglis Clark among the Founders may be claimed with any degree of plausibility as a progressivist writer. Yet even that claim has been grossly over-stated, and Inglis Clark's importance as a framer of the Constitution correspondingly exaggerated. The comments of Harrison Moore, while interesting and even prescient, shed little light on the state of mind of the Founders.
Undoubtedly, the debates over the Judiciary Bill introduced into the first session of the Commonwealth Parliament on 8 March 1902 by the Barton Government comprise the best hunting ground for progressivist statements by the Founders, as well as by their close parliamentary colleagues. Indeed, the contrast between these parliamentary debates and the Convention Debates is quite marked in this respect, though this is not entirely surprising. First, the hundreds of pages of debate over this important bill are specifically focused upon the federal judiciary, affording its functioning a degree of attention that it never received during the Conventions. Second, after Federation, many of the Founders passed from being a group of individuals trying to make a Constitution, to being a group of individuals trying to make a Constitution work. In this context, the potential inconveniences and difficulties involved in amending the Constitution under s 128 may have struck some of them with renewed force, and caused them to develop an enthusiasm for at least a degree of judicial creativity in a constitutional context.
It should be noted at the outset that the tone of the debates upon the Judiciary Bill is very much set by their contemporary political context. A central purpose of the Bill was to establish the High Court, and to establish it on a firm basis in terms of personnel and resources. The Bill was a key measure of the Barton Government, and the flagship measure of Attorney-General Deakin. As such, it was bitterly attacked by the opposition forces of the day, both from within Reid's Free Trade alliance, and the fledgling Labor Party. The chief basis of their attack was the accusation that the proposals contained in the Bill were outrageously wasteful and extravagant, and would involve the creation of a High Court the expense and pretensions of which would be out of all proportion to that body's actual workload and real importance.[151] Within this wider attack were made disparaging comparisons between the future High Court on the one hand and the Privy Council and the state Supreme Courts on the other.[152] In this fraught context, it was incumbent upon the supporters of the Bill to stress the indispensability of the High Court to the federal scheme, together with the overwhelming importance of its future interpretative role, and this they did with a will. Consequently, just as attacks upon the Court tend to be over-blown denigrations of it as a 'luxurious' superfluity, so some defences of it tend rhapsodically to exaggerate its functions. Without discounting them, the more progressivist contributions to the Judiciary Bill debates need to be read with this political context in mind. They also need to be set beside such conservative comments as those asserting the basic role of the High Court as guardian of the states, comments which are just as common in the Judiciary Bill debates as they were in the Conventions.[153]
Deakin's speech introducing the Bill[154] undoubtedly comprises one of the most cited pieces of evidence that the Founders' intent on the point of constitutional interpretation was progressivist.[155] The speech today is widely regarded as one of Deakin's oratorical masterpieces, as it was by his friends in 1902. His parliamentary opponents, however, mocked it as exaggerated and over-done. Quick uncharacteristically poked fun at the speech, saying that Deakin had 'almost exhausted the federal vocabulary',[156] while Reid entirely characteristically sniggered over Deakin's earnestness.[157] The broad tone of the speech is genuinely progressivist, though as will be seen, not so strongly progressivist as sometimes is suggested. Deakin's essential theme was that the Constitution is a large canvas, painted with broad-brush strokes. It thus is best regarded as an outline, with the function of the Court being to flesh out these bare bones. In so doing, it will be the particular role of the Court to adapt the Constitution to changing circumstances. As might be expected, Deakin's speech contains a number of flattering references to the work of the United States Supreme Court.
The key passage from Deakin's speech probably is the following:
That Constitution was drawn, and inevitably so, on large and simple lines, and its provisions were embodied in general language, because it was felt to be an instrument not to be lightly altered, and indeed incapable of being readily altered; and, at the same time, was designed to remain in force for more years than any of us can foretell, and to apply under circumstances probably differing most widely from the expectations now cherished by any of us. Consequently, drawn as it of necessity was on simple and large lines, it opens an immense field for exact definitition and interpretation. Our Constitution must depend largely for the exact form and shape which it hereafter will hereafter take upon the interpretation accorded to its various provisions. This court is created to undertake that interpretation.[158]
Later, enlarging upon his theme, Deakin stressed the role of the High Court in ensuring the contemporary relevance of the Constitution:
It is as one of the organs of Government which enables the Constitution to grow and to be adapted to the changeful necessities and circumstances of generation after generation that the High Court operates. Amendments achieve direct and sweeping changes, but the court moves by gradual, often indirect, cautious, well considered steps, that enable the past to join the future, without undue collision and strife in the present.[159]
Without question, Deakin's speech is a progressively minded exposition of the task of constitutional interpretation. Similarly, its progressivist rhetoric is notably stronger than that to be found in any of the contributions in the Convention Debates. Indeed, Deakin's silence on the issue during the Conventions is somewhat puzzling in light of the depth of feeling that he reveals here. However, to move from the point that Deakin's speech falls somewhere within the range of progressivist thought to arguing that he was a staunch adherent to the strong progressivism of a Deane J or a Kirby J, or even that he would have been supportive of the open textualism sometimes advanced by McHugh J, would be highly implausible.
There is, in fact, good reason not to regard Deakin's speech as an espousal of radical progressivism. Thus, for all its rhetorical breadth, it seems to be aimed at minor judicial adjustments to constitutional dispositions rather than major revisions. Probably the clearest indication of this comes when Deakin contrasts the 'direct and sweeping' changes to be achieved by formal constitutional amendment with the 'indirect, cautious, well considered steps' involving neither 'undue collision or strife' that will comprise constitutional change through judicial interpretation. Such a description would be difficult to apply to the progressivist rights agenda of a Deane J, or the radical progressivism of a Kirby J. A similar impression that Deakin had in contemplation only judicial expansion of the Constitution that was instrumental and relatively modest in character is conveyed by the fact that he was prepared to advance the remarkably mundane argument that such 'elasticity' was defensible on the grounds that it would be less expensive than the alternative of conducting constant referenda.[160]
Much the same sense emerges from two exchanges that occurred between Deakin and parliamentary critics during his speech. The first was between Deakin and the Labor representative Conroy, which took place immediately after the passages quoted above.
Mr Conroy: But we cannot read into the Constitution something which is not there.
Mr Deakin: Perfectly true ... [161]
Deakin went on immediately to observe of the American Constitution (and by analogy the Australian) that its 'script is read with the full intelligence of the time, and interpreted in accordance with the needs of the time',[162] but his fundamental response to Conroy's interjection stands: that which is not already in the Australian Constitution cannot be placed there by judicial interpretation. The second exchange likewise is revealing, and took place between Deakin and McDonald, concerning the relationship between Deakin's espousal of a degree of judicial activism and the necessity for formal constitutional amendment by referendum:
Mr McDonald: Is the Attorney-General opposed to the referendum?
Mr Deakin: Certainly not; but I am pointing out that by the interpretation of the Constitution by competent courts, we may secure decisions which will render it unnecessary to amend, except for specific changes.[163]
Noticeably in this exchange, Deakin seems to downplay the degree of judicial activism that he is advocating. Once again, one gains the impression that what he has in mind is a relatively modest judicial elucidation of the Constitution, and a smoothing-out of the Constitution's inevitable rough patches as it emerged from the drafting workshop of the Convention, rather than a sweeping power of on-going constitutional revision.
Indeed, as was the case with the comments of such Founders as Isaacs and Downer at the Conventions, it is worth speculating whether the contribution of Deakin during debate on the Judiciary Bill really constituted anything much out of the ordinary in terms of constitutional interpretation, at least when it is placed within its contemporary political context, stripped of its purely rhetorical flourishes, and analysed in its entirety, as opposed to being assiduously trawled for signs of progressivist inclination. In this sense, it is highly arguable that Deakin's remarks do not go a great deal further than reflecting the interpretative predilections of someone who believes that the Constitution should be construed broadly, in conformity with standard British interpretative practice; according to its spirit as well as its text, rather than its text alone; with the deployment of such amplificatory techniques as the distinction between connotation and denotation; and with a sensitivity towards ensuring that, so far as is conformable with its text and spirit, the Constitution should answer modern needs without recourse to unnecessary referenda. This is much more the approach of a Griffith J or a Barton J—in whose appointment to the High Court Deakin was intimately involved—than a Deane J or a Kirby J. Interestingly, there is some internal evidence to suggest that Deakin may have felt that his speech introducing the Bill had been somewhat overdone on the point of judicial adaptation of the Constitution. In his later interventions in the debate he was markedly more guarded, reflecting upon the judicial function in uncontroversial terms,[164] and stressing the role of the High Court as guardian of the states.[165] His speech in reply at the conclusion of the second reading stage was subdued, and contained no rhetorical celebrations of the interpretative role of the Court,[166] while his comments at the third reading contained little more than conventional praise of the work of the United States Supreme Court.[167]
In any event, whatever its intended effect, Deakin's speech sparked what probably was the first sustained debate on constitutional interpretation in Australian legal history. In some ways, that debate is startlingly modern in its lively appreciation that there is more than one way to interpret a constitution, much more closely resembling constitutional discussion of the last decade than the repeated elucidation of literalist certainties that dominated Australian constitutionalism in the wake of Engineers. Probably the simplest way to approach this debate is to divide consideration of it between those who supported (or extended) Deakin's broad vision of the role of the High Court, and those who opposed it.
Those most strongly committed to the notion of a constitutionally active High Court were to be found in the Senate. Senator Gould enthusiastically took up Deakin's theme, arguing that no matter how clear the Constitution might be 'it nevertheless entails the necessity of interpretation from time to time, and probably at times the necessity of considerably extending the powers given therein.'[168] Referring to American experience indicating that the idea that the Constitution could be amended only formally was a delusion, Gould observed 'and so it will be found to be a delusion in regard to the Commonwealth Constitution as years go by.'[169] On any analysis, this is the rhetoric of progressivism, even if one might pose the same queries as to scale that were posed in relation to Deakin. However, Gould's progressivism apparently did not extend beyond a certain point. When asked facetiously (and pointedly) by Labor's McGregor whether it would be permissible for the High Court simply to 'interpret' out of existence the Constitution's stipulation that the federal capital should be in New South Wales, Gould rather lamely replied that the Court would have the power to adapt the Constitution 'but this adaptation must be kept within certain limits and certain bounds'.[170]
Probably the strongest exposition of progressivism within the debate—and certainly stronger than that of Deakin—came from Sir Josiah Symon. Symon's comments essentially represent a considerable intensification of the position he had expressed during the Convention Debates.[171] Once again, he approached the issue from a perspective of near worship of the United States Supreme Court. Symon argued that the High Court should be composed not of rigid lawyers but of judges who, like their counterparts in the United States, would 'by the legitimate exercise of the powers of judicial exposition, make this instrument, without amendment, beneficiently cover all the advances the Commonwealth might make.'[172] In terms reminiscent of McHugh J, Symon asserted that, following the example of the United States, 'the framers ... put into the Constitution only the fundamental rules and principles' and that 'the expansive force of the Constitution within legitimate limits, is exerted through the calm atmosphere of a judicial tribunal'.[173] When Senator Dobson interjected that the United States Supreme Court dealt in politics rather than law, Symon responded haughtily that the High Court would be 'dealing with a Constitution and instrument of government—which no-one pretends is complete in itself, but which merely lays down broad general principles' and that in interpreting the Constitution a court 'must be animated ... by a far higher and broader apprehension than the mere lawyer who is dealing with an ordinary Act of Parliament.' Symon's characterisation of such an approach, derived by reference to the work of the United States Supreme Court, was that it would be 'statesmanlike'.[174] There is no obvious way to understand this contribution other than as one revealing a commitment to a form of progressivism, at times resembling the open textualism of McHugh J, at others seeming to be a forerunner of the extrapolatory approach of Deane J, or the radical progressivism of Kirby J. Indeed, in his call for United States-style 'statesman' judges, Symon seems a more plausible (if less romantic and profound) hero for modern day progressivists than either Inglis Clark or Deakin.[175]
Symon represents the high-water mark of progressivism in the Judiciary Bill debate, but his enthusiasm was very nearly matched by that of Senator Harney. Harney adopted an approach similar to that of Symon (and similarly reminiscent of the open textualism of McHugh J) in arguing that the Founders had so framed the Constitution that it was 'moulded in elastic', thus permitting it to expand and adjust at the hands of the High Court. His view was that the Constitution was composed of 'broad, far-reaching, loosely-termed, abstract political conceptions', and in tones that certainly would have appealed to Deane J, was 'intended to be the foundation of a growing tree of rights'. Consequently, the High Court should be composed of judges who are 'entuned to its high purposes'.[176] Again, this undeniably is the language of high progressivism. Harney was, however, forced to acknowledge some limits to his favoured constitutional approach. When he continued in his theme that the Constitution should be consciously developed by the judges, O'Connor—seemingly concerned that his colleague was allowing his rhetoric in support of the Bill to carry him away—sharply interjected that this development could only occur in keeping with the rules of legal interpretation. Harney accepted O'Connor's correction.[177]
The contributions of Gould, Symon and Harney together comprise the strongly progressivist content of the Judiciary Bill debate. There are, however, other contributions that contain some progressivist elements. Naturally, all were made by parliamentarians supporting Deakin's Bill. In the House of Representatives, Groom defended the role of the United States Supreme Court, praising it as the 'living voice' of the Constitution, and arguing that the Australia required a similar institution.[178] His fellow member, Edwards, also supported the notion of a constitutionally active High Court, but like Deakin seemed to envisage only relatively minor adjustments:
probably, as has been the case in the United States, the decision of the court will in effect amend the Constitution to meet the popular will in several particulars to which it is not worth the trouble and expense of going through the forms of amendment.[179]
More obliquely, O'Malley eulogized Chief Justice Marshall as the man 'who galvanized the United States Constitution, which to a large extent we have copied, into life.'[180] Bruce Smith observed, a little vaguely, that the decisions of the United States Supreme Court 'led in many cases to the introduction of meanings which possibly were never contemplated by its framers' and that the 'same difficult work will have to be undertaken here'.[181] In the Upper House, Senator Best was of the view that, as with its American counterpart, the High Court would 'interpret and develop' the Constitution, while in the specific case of the Commonwealth's enumerated legislative powers, the Court would have to perform 'enormous work in order to ascertain what they mean and to develop them in such a way that they will be completely consistent with the Constitution.' All this, however, had to be consistent with the Court's fundamental duty 'in the preservation of states rights.'[182]
Pausing briefly to summarise the pro-progressive elements of the Judiciary Bill debate, it is clear that debate reveals broadly progressivist sympathies on the part of a number of the participants. Moreover, the degree of sympathy thus revealed is considerably greater than was the case with the Convention Debates. However, this conclusion should not be overstated. The debate on the Judiciary Bill is not the hotbed of progressivism sometimes suggested by the triumphant citation of Deakin's speech. Out of around one hundred members of Parliament, only three—four if one counts Deakin himself—adopted a strongly progressivist position, with another five making statements consistent with some (unspecified) degree of support for that position. This hardly constitutes general approval among the members of the first Parliament of the Commonwealth for a progressivist approach to constitutional interpretation.
This is made painfully clear when one turns to an assessment of explicit opposition to the concept of progressivism as revealed in the Judiciary Bill debates. Unlike Deakin's famous speech, this opposition rarely is referred to, but was intense and wide-ranging.
Hostility towards progressivism and Deakin's championing of a constitutionally activist High Court came primarily from two groups. The first of these were parliamentarians opposed to Deakin's grand vision for the High Court on the grounds of constitutional and legal principle; or because its achievement would involve excessive expense; or simply because such opposition provided an ideal ground upon which politically to test the Barton Ministry. The greater part of this group was composed of George Reid and his Free Trade alliance. The second grouping consisted of members of the Australian Labor Party. They tended to be deeply suspicious of a High Court composed of conservatively minded judges whom Deakin seemed to envisage operating less as lawyers than as political theorists.
Not surprisingly, probably the most determined contribution from the non-Labor critics of progressivism came from Glynn, who since the Conventions had lost none of his hostility towards a progressivist High Court. Ridiculing Deakin's pretensions for the Court, Glynn warned against an activist Court by likening its activities to those of the United States Supreme Court, again drawing upon Jefferson for the dramatic image of the federal judiciary advancing like a nocturnal thief across the field of its jurisdiction. He accused Deakin of seeking to erect a tribunal that would distort the operation of the Constitution, one that 'will probably amplify according to your growing necessities the interpretation of the provisions of the Constitution'.[183] This was a theme that was to recur throughout the debate.
The first of the Labor members to speak on the Bill was William Morris Hughes, who attacked the notion of a progressivist High Court in terms even more vehement than Glynn. He accused Deakin of wanting a High Court that would not merely interpret the Constitution, but make it:
Here is an empty building, the appointments of which are evidently to be left to the tastes of the tenants from time to time, and the Judiciary is to be entrusted with the task of finishing and completing the structure.[184]
To Hughes, it was not the doubtful points of the Constitution that Deakin wanted resolved by the High Court. Rather, the Court was to be the means by which the substantive dispositions of the Constitution could be undermined without the requisite referendum through 'some sort of patchwork amendment by a convenient interpretation of the Constitution'.[185] Hughes's polemical attack on the whole notion of a constitutionally activist High Court is a neglected classic within its genre.
Curiously, Hughes seems to draw no distinction between a Court actively imbued with a desire constantly to adapt the needs of the Constitution to current exigencies, and one determined to enforce the unexpressed intentions of the Founders, conflating the two and railing equally against both as emanations of Deakin's perfidious plans.[186] This does raise the tantalising question, impossible now to resolve, of whether some of the expansive expositions of the judicial role by those such as Deakin (and even Symon) paradoxically might have been meant to smooth the way for such intentionally founded but non-textual doctrines as reserved powers and the implied immunity of instrumentalities, rather than for their constitutional polar opposite, progressivism. Significantly, Hughes' simultaneous opposition both to extra-textual intentionalism and progressivism has the effect that his speech is a passionate avowal of rigorous constitutional literalism of the type that was to be adopted in Engineers, possibly the first sustained formulation of that position.[187]
In any event, Glynn and Hughes had between them fired the opening round of what was to become something of a sustained attack upon Deakin's conception of the High Court. Other Labor members joined Hughes in lambasting the notion of a Court that would as much create as construe the Constitution. In the House of Representatives, Conroy said that Deakin's evident intention was to appoint judges to the Court to 'absolutely make law' under cover of construing the Constitution.[188] In other words, argued Conroy, Deakin was proposing of the Constitution that the High Court would 'take it upon itself to alter its provisions' in defiance of the requirement that this not occur without a referendum.[189] In the Senate, their colleague Pearce more politely stated that he did 'not think that we should accept the view that the High Court is going to develop the Constitution' and that he trusted 'the people will develop the Constitution themselves.'[190] McGregor, as we have seen, satirically interrupted Gould's rhapsodic account of the operations of a progressivist judiciary to ask whether the location of the federal capital would be secure under such an approach.[191]
Other members of Parliament were similarly sceptical of or at least cautious towards Deakin's claims. Interestingly, that radical Founder Higgins was generally deflating of the claims of the Court, and patronisingly said of the attempts of those such as Deakin and Symon to analogise between the great judges of the United States Supreme Court and the future judges of the High Court:
in that country the Judges have made a Constitution as a sort of addition to the old instrument. But those Judges spoke as statesmen, and not as lawyers; no lawyer in these days would speak as did those Judges from time to time.[192]
In the Senate, Barrett was highly critical of any tendency to create an excessively powerful judiciary on the basis that 'we shall make it even greater than the Constitution.'[193] He bluntly observed that:
If we love liberty and right, let us reserve to the people themselves the right to amend the Constitution ... Let not that power rest with the Judiciary ...[194]
Shortly after these comments, Dobson, who during the Convention had reflected on the role of the Supreme Court of the United States,[195] observed tersely that the Constitution simply should be interpreted according to the 'principles of construction.'[196]
Two other Founders must be counted as having displayed at best limited enthusiasm for Deakin's progressivist tendencies. Downer, who hardly emerges as a radical progressivist at the Conventions, spoke in a similarly restrained vein during debate in the Senate on the Judiciary Bill. Having reasserted the general position of Deakin that the High Court should interpret the Constitution so as to meet the demands of altered circumstances, he went on heavily to qualify that position as follows:
We are not appointing these Judges for the purpose of making a Constitution for us, but for the purpose of interpreting what we have done; interpreting it strictly, undoubtedly, but in its interpretation they must have immense latitude.[197]
O'Connor seems to have had a similar view. In his speech during the Second Reading debate, he praised the work of the United States Supreme Court, and by analogy the future work of the High Court, in ensuring constitutional adaptability.[198] His speech, however, also contained references to the sanctity of popular amendment by double majority,[199] and the crucial role of the High Court in protecting the states.[200] Moreover he twice intervened during debate to deny that the Court would have a power of constitutional revision. When Barrett said during his attack on the concept of judicial activism that the judiciary should not have the power to 'supersede' the Constitution, O'Connor bluntly interjected '[n]obody is claiming that'. To similar effect, he interrupted Harney's progressivist exposition to insist that judicial interpretation of the Constitution should keep within the rules of legal interpretation.[201]
Finally, one may note the deeply non-committal performance of Prime Minister Barton. Barton hardly could repudiate the progressivist rhetoric of his Attorney-General, but he likewise made no attempt to adopt it. Instead, he characteristically stressed the fundamental importance of the High Court as protector of the federal balance. Barton, too, desired a Court that would do more than merely interpret the Constitution, but not in the sense of a Court that would revise that document. To Barton, the Court was to be not merely the interpreter of the Constitution, but its 'guardian', and the guardian of the federalism that the Constitution enshrined.[202] In the context of a debate where Barton's own Attorney-General arguably had made such a feature of the legitimacy of constitutional activism by the High Court, this was a curiously detached performance. Similar comments may be made of Isaacs, who spoke closely after Hughes's stinging attack upon Deakin's envisaged role for the High Court, but made no attempt to defend the progressivist elements of that vision.[203]
What conclusion, then, is to be drawn from this analysis of the Judiciary Bill debates? Probably the most important is that they do not comprise the parade of progressivist opinion that might be suggested by the occasional references to Deakin's second reading speech. On the contrary, the contributions of Deakin and such like-minded members as Symon were matched blow for blow by the determined rejection of progressivism by those such as Glynn and Hughes. Indeed, the battery represented by those members either explicitly opposed to the progressivist sentiments of Deakin or at least evidently uneasy with them is formidable. It includes such Founders as Glynn, Higgins, Dobson, Quick,[204] Downer and O'Connor, as well as such significant political figures in the early history of the Commonwealth as Hughes, Pearce and McGregor. The disinclination of Barton and Isaacs to enter the debate on Deakin's side also is notable.
In purely numeric terms, ten members who took part in the debate made some comment inconsistent with support for a form of strong progressivism, as compared with only nine who explicitly associated themselves (in varying degrees) with Deakin's comments. However, an impressionistic analysis of the debate probably is even less favourable to the progressivist forces. Reading the printed debates, it is hard to resist the conclusion that in his understandable eagerness to stress the importance of the High Court with a view to securing its adequate establishment, Deakin made the rhetorical miscalculation of overstating its role as a means of informal constitutional revision. This brought down upon his head a series of attacks from constitutional legitimists such as Glynn, and from Labor opponents of an over-mighty Court, such as Hughes. In turn, supporters of Deakin such as Gould and Harney, and to a much lesser extent those such as Groom and Bruce Smith, were compelled to defend Deakin's position against these attacks as part of a jurisprudential debate essentially extraneous to the specific purposes of the Bill. Others of his close associates, such as Downer and O'Connor, expressly placed limitations upon the progressive role of the Court while Barton and Isaacs, in supporting the Bill, chose to say nothing in support of a progressive High Court. In the final analysis, the Judiciary Bill debates are suggestive less of a crucial constitutional measure adopted on the basis of a progressivist exposition by Deakin, than of the Bill being passed in spite of Deakin's more provocative comments.
Of course, the fact remains that the debates on the Judiciary Bill do reveal a significant number of contributions in favour of progressivist interpretation, within a surprisingly modern debate between at least some identifiable progressivists, intentionalists, and literalists. These progressivist contributions are important, but again their significance should not be overstated. All were made in a context where the tendency to exaggerate the role of the High Court was understandable. The contributions of Deakin's supporters were made after Deakin himself had effectively backed them into a progressivist corner. Even then, only Gould, Symon and Harney delivered speeches that amounted to sustained defences of progressivism, and only Symon's was one of unwavering support for that method of interpretation. As has been demonstrated, even Deakin's own speech was far from constituting an unqualified endorsement of strong progressivism, and contained a number of elements that suggest he had in mind an altogether more modest constitutional agenda for the High Court. In the final analysis, while the Judiciary Bill debates raise some interesting questions concerning attitudes to constitutional interpretation in the decade after Federation, they definitively do not provide evidence for a wide acceptance of a progressivist methodology.
All that is attempted here is a very brief survey of some of the more important decisions of the early High Court with a view to determining whether they reveal some significant articulation of progressivist methodology. Certainly, were one to assume a prevalent progressivist inclination on the part of the Founders, it reasonably might be expected that this predilection would emerge prominently upon the early High Court bench, constituted as it was in its early years exclusively by Founders: initially Griffith CJ, Barton and O'Connor JJ, supplemented in 1906 by the appointment of Isaacs and Higgins JJ. Moreover, if one takes the view that Deakin's speech on the Judiciary Bill represented a widely acclaimed espousal of progressivism, the time for the establishment of a progressivist High Court hardly could have been more propitious than in 1903 when the Court, composed of three judges all appointed by Deakin as Prime Minister and operating pursuant to the provisions of that very Bill, now an Act, first began to sit.
It therefore is singular, to say the least, that one discerns not the slightest degree of overt, strong progressivism in the early judgements of the High Court. On the contrary, the interpretative methodology of that Court was profoundly intentionalist, though less idiosyncratic in its intentionalism than has commonly been supposed in the aftermath of its comprehensive demolition in Engineers. Effectively, the first High Court applied standard British rules of statutory interpretation in construing the Constitution, though these rules were modified both by reference to the character of the document as a constitution, and more specifically as a federal constitution.
Thus, the Court's starting point was the necessity to discover the legislative intent behind the words in question. This, however, was not some generalised search: in accordance with ordinary interpretative practice, it was to the constitutional language itself that the Court turned in order to discern the relevant intention. So much emerges with absolute clarity from the Court's first general exposition of its constitutional method in Tasmania v Commonwealth.[205] In that case, Griffith CJ stated that the Court would adhere to the usual practices of statutory interpretation in construing the Constitution according to its intent, with the words of the Constitution comprising the best guide to that intention.[206] In rejecting a constitutionally active role for the Court he propounded that the meaning of the Constitution was to be ascertained 'from the language of the Constitution, and all we have to do is interpret that language.'[207] Barton J was equally dismissive of any suggestion that the Court might have a role in constitutional revision. While cheerfully conceding that 'the intention of a constitution is rather to outline principles than to engrave details'[208] he indignantly observed that:
It would be an enormity to hold that a Judge who thinks that a certain course, laid down with apparent clearness in an Act of Parliament, is absurd, may use every means to get rid of that literal meaning which, to the minds of responsible legislators, who were in an equal position to judge of its absurdity, appeared to be reasonable.[209]
and went on to say:
It seems to me plain enough that we cannot construe Acts of Parliament by what might possibly have entered into the minds of the framers had their attention been called to the construction afterwards sought to be placed on their language.[210]
O'Connor J likewise displayed no progressivist enthusiasm, insisting that the Constitution be interpreted by reference to its intention as derived from its words, these words to be understood in light of the contemporaneous circumstances in which they had been drafted.[211] Consistently with this position, O'Connor J in Deakin v Lyne and Webb strongly asserted the integrity of the popular will as expressed in the Constitution against all forces other than formal amendment:
Until that will as so expressed is altered by an amendment of the Constitution, we can have no regard to any other expression of the will of the people.[212]
The dicta in Tasmania v Commonwealth thus may be regarded as making it adequately clear that the judges of the first High Court had no interest in articulating an interpretative methodology of strong progressivism.
Precisely the same was to prove true of Isaacs and Higgins JJ when they joined the bench. It may be noted that it was not with any of the quite straightforward approaches to constitutional interpretation outlined above that Isaacs and Higgins JJ subsequently were to take issue. As strong textualists, they were themselves entirely comfortable with the Court's emphasis upon the constitutional text. Similarly, as textualists, they also necessarily were derivative intentionalists, regarding the text as mirror of the relevant constitutional intent.[213] Critically in the present context, neither Isaacs nor Higgins during the period in which they were vigorously contesting such doctrines as that of reserved powers expressed any obvious inclination towards progressivism. On the contrary, their professed literalism made them extremely wary of suggestions that the Constitution should be interpreted by reference to extraneous considerations, whether in the form of non-textually derived intent, or progressivist arguments of policy. This hostility towards progressivism was made quite clear by Higgins J in the Union Label Case. In relation to the notion of trade marks as contained in s 51(xviii) he stated:
No matter how circumstances may change, no matter what may be the developments of science, of the arts, of business enterprise, and of society to the end of time, the Parliament is confined forever (unless there be an alteration to the Constitution) to such trade marks as the Court enforced in the year 1900.[214]
In the same case, Isaacs J noted—in terms prescient of Engineers—'no considerations of expediency or desirability springing from any source whatever are permissible to the Court in determining the limits of an express and substantive power.'[215]
Just as Isaacs and Higgins JJ were comfortable with the first High Court's general approach of non-progressive textual intentionalism, so they were supportive of its application of two rules of British statutory interpretation of special relevance to the interpretation of written constitutions. First, the five initial judges of the Court all were agreed, at least at a conceptual level, that while the Constitution was an Act of the British Parliament it was a highly unusual Act, and that as the constituent document of a great federation it was to be read expansively, rather than narrowly.[216] Of course, what the 'expansive' interpretation of the Australian Constitution meant in practice varied prodigiously from judge to judge. In the case of Griffith CJ, a broad and unpedantic reading of the Constitution produced the doctrines of reserved powers and implied immunity as expressions of its intended fundamentally federal character.[217] For Isaacs J, by way of contrast, an expansive approach towards the Constitution led, via the rule in R v Burah,[218] to the inexorable expansion of Commonwealth legislative power finally effected in Engineers.[219]
In either case, however, expansive interpretation had nothing conceptually in common with progressivism. To judges like Griffith CJ, the declaration of such doctrines as reserved powers and implied immunity could not have been further from the self-conscious development of the Constitution. Rather, they were viewed as being embedded in the Constitution as a matter of its own internal logic from the very moment of its inception. As he remarked of the implied immunities doctrine in D'Emden v Pedder 'a right of sovereignty subject to intrinsic control is a contradiction in terms', so that the doctrine should be regarded as nothing more than 'the essence of the Constitution'.[220] In other words, so far as Griffith CJ (and Barton and O'Connor JJ) were concerned, these doctrines were fully intended outcomes of the Conventions, as was concluded by La Nauze.[221] Similarly in the case of Isaacs, the application of the principle in R v Burah to expand the legislative powers of the Commonwealth was defended, not on the basis that the Constitution was consciously to be 'up dated' by the judiciary in line with modern developments, but rather on the grounds that it was to be construed in accordance with common law rules for the interpretation of a specialised type of statute, the application of these rules to the particular case of the Australian Constitution logically being attributable to the contemporaneous intention of the enacting legislature.[222]
The second generally agreed refinement to the process of constitutional interpretation concerned connotation-denotation. All the members of the first High Court, and the two additions of 1906, were entirely comfortable with the use of the technique of connotation and denotation in interpreting the legislative powers of the Commonwealth. As Griffith CJ remarked in the Union Label Case, the meaning of the terms comprising the subject matters of the Constitution remain fixed as they were in 1900, but 'with advancing civilisation new developments, now unthought of, may arise with respect to many subject matters.'[223] Of course, as already has been noted,[224] a willingness to resort to the historically and intentionally delimited procedure of connotation-denotation is a very different thing to support for one or other of the versions of strong progressivism, and the attachment of the early High Court to this largely uncontroversial interpretative technique is unremarkable.
What is considerably more interesting, perhaps, is the language used by the members of the Court in formulating this relatively mundane tool of constitutional construction. What is striking here is that this language not infrequently is highly reminiscent of the more prominent examples of 'progressivist' rhetoric contained in the Convention Debates, the debates on the Judiciary Bill, the writings of Inglis Clark, and elsewhere. This again raises the question of whether many of the utterances of the Founders commonly put forward in support of their progressivist inclination were little more than flowery expositions of connotation-denotation.
To take two examples of the Court's own judicial rhetoric in this context, we already have noted that in the Union Label Case Griffith CJ rather grandly expounded the connotation-denotation distinction in terms of 'advancing civilisation' and 'new developments, hitherto unthought of'. This is language strikingly similar to that used by Inglis Clark in his famous 'living force' passage,[225] and to that adopted by Deakin in his famous speech on the Judiciary Bill,[226] yet it is being deployed by Griffith—hardly himself a progressivist—in justification of nothing more exciting than the standard application of connotation-denotation reasoning to the legislative powers of the Commonwealth. Exactly the same observation may be made of the exposition of connotation-denotation by O'Connor J in the same case, which had it occurred during the Convention or Judiciary Bill debates undoubtedly would be advanced today as evidence of his commitment to some version of strong progressivism:
[the Constitution] ... was intended by means of its broad general terms to adapt itself as far as possible to the changing conditions of trade and commerce, and to the new conceptions of legal rights and obligations which might in the ordinary course of things be expected to be evolved in the development of Australia.[227]
Again, in words deeply evocative of Deakin, Inglis Clark and Symon, O'Connor in reality is doing nothing more than expressing the rationale for a standard application of connotation-denotation: indeed, in the specific circumstances of the Union Label Case, he was not even prepared to expand the concept of a 'trade mark' through the application of that technique. These two passages should be enough at least to make us query how far beyond a sensibly liberal application of connotation-denotation those such as Inglis Clark and Deakin actually intended that the High Court should go, and whether we are not discerning within their words our own, rather than their, preference for a strongly progressivist methodology.
The final matter that has to be addressed in relation to progressivism and the early High Court is the overthrow of central tenets of the jurisprudence of the first High Court by Isaacs J and his allies in the Engineers Case in 1920. Isaacs J had long loathed such implicatory doctrines as reserved powers and intergovernmental immunities, based as they were upon the finding of an extra-textual intention through the 'reading of the Constitution as a whole'.[228] Certainly by 1920, Isaacs J's distaste for these aspects of the constitutional oeuvre of the first High Court on purely legal grounds would have been compounded by a conviction that it was out of step with the contemporary needs of Australia for more cohesive central government. The departure of Griffith CJ, Barton and O'Connor JJ from the Court and their replacement by younger men far closer to Isaacs J in constitutional temperament presented him with the opportunity finally to suppress what he regarded as deeply aberrant elements of the constitutional legacy of the founding Justices of the Court.
In terms of the possible overt articulation of a progressivist methodology by the High Court, this was a pivotal moment and something of an ideal opportunity. It generally is accepted that the Engineers revolution was prompted at least as much by considerations of perceived national necessity as by the logical imperatives of constitutional law.[229] Given this fact, it theoretically would have been open to the Court to have articulated its abandonment of reserved powers and intergovernmental immunities by announcing its adhesion to a progressivist vision of constitutional interpretation, and declaring that these doctrines no longer answered the nation's developing constitutional requirements. Instead, the joint judgment in Engineers famously propounds a rigid literalism as chilly towards overt progressivism as it is towards the extra-textual intentionalism of the first High Court. There is little comfort for a progressivist judge in the Court's famous literalist anathema on the constitutional approach of its former members:
It is an interpretation of the Constitution depending on an implication which is formed on a vague, individual conception of the spirit of the compact, which is not the result of interpreting any specific language to be quoted, nor referable to any recognized principle of the common law of the Constitution, and which, when stated, is rebuttable by an intention of exclusion equally not referable to any language of the instrument or acknowledged common law constitutional principle, but arrived at by the Court on the opinions of Judges as to hopes and expectations respecting vague external conditions.[230]
The literalistic harshness of this language is a little curious when we recall that Isaacs at the Conventions (though not during the Judiciary Bill debate) made at least one contribution that has been cited as evidence of at least progressive tendencies.[231] Moreover, no informed commentator doubts that, while Isaacs consistently had articulated a preference for a literalist interpretative methodology,[232] and while this preference undoubtedly reflected a variety of quite conventional legal and constitutional influences,[233] his adherence to it must have been significantly influenced by an awareness that its adoption by the Court necessarily would strongly favour the expansion of Commonwealth legislative power. In these circumstances, therefore, it is fair to ask the question why Isaacs J and his colleagues in Engineers, assuming them to have indeed shared some practically progressivist agenda, chose to exorcise the ghost of Sir Samuel Griffith under the banner of literalism rather than progressivism? The answer is as obvious as it is revealing. An announcement by the Court that it now routinely was in the business of revising the Constitution along the lines supposedly suggested by Deakin in 1903 presumably would have been politically unacceptable on the grounds of constitutional illegitimacy, both in wider terms to governments and electors, and more specifically to the legal constituency of the High Court itself. Consequently, the progressive realities that formed part of the Engineers agenda were better wrapped within the legal respectability of constitutional literalism. In other words, there are strong grounds to suppose that in 1920, progressivism could not have been advanced as a respectable constitutional methodology by the Isaacs-dominated Court, even had it desired to take such a step. There can be few more compelling illustrations of the fact that progressivism did not emerge into the post-Federation era as a legitimate constitutional approach than its failure to have any explicit role in the new interpretative methodology enunciated in Engineers.
The early history of the High Court, therefore, provides little comfort for those who argue for strong progressivist tendencies among the Founders. The members of the first High Court were uniformly intentionalist in their constitutional approach, while the judgments of Isaacs and Higgins JJ display no leanings towards progressivism. The resolute refusal of the Engineers bench to engage in progressivist rhetoric is similarly unhelpful to the revisionist claims of modern progressivists.
It certainly is true that a careful analysis of historical material connected with Federation and the period of constitutional establishment that occurred immediately after Federation reveals a number of contributions by the Founders and their associates that contain progressivist elements. These contributions are striking when first examined (and particularly when examined out of context) partly for the very reason that they are so counter-intuitive to general expectations as to the interpretative preferences of the Founders.
Nevertheless, any suggestion to the effect that strong progressivism was a dominant, or even a significant, position among the Founders amounts to a gross exaggeration. Progressivist contributions in the Convention Debates are infrequent, isolated, heavily dependent upon context and highly ambiguous. Progressivist interventions in debate on the Judiciary Bill, while relatively more common and somewhat more explicit, generally share these characteristics. Even where such comments appear to embody a relatively overt commitment to progressivism, it typically will be possible to mount a powerful argument to the effect that they really embody little more than a commitment to such uncontroversial techniques as connotation-denotation, or that their authors regarded them as confined to the achievement of very minor tasks of constitutional revision. Consequently, such comments provide little or no credible support for the type of strong progressivism advocated by those such as Deane J or Kirby J. A similar view must be taken of the work of such commentators as Andrew Inglis Clark. Predictably, in view of these conclusions, an examination of the judgments of the early High Court likewise betrays no endorsement of a progressivist methodology.
One question that does arise naturally out of this analysis is that, accepting the Founders were not progressivists, how did they intend their Constitution to be interpreted? This issue is beyond the scope of the present article, but elements of an answer do inferentially emerge, to be explored more fully on another occasion. The fact that the Founders did not spend a great deal of time talking about the issue of constitutional interpretation (even during discussion of the Judicature Chapter) suggests that they probably shared a broad if not particularly deep consensus on the matter. Thus, they probably were entirely comfortable with the announcement by the first High Court that the Constitution was to be interpreted in accordance with the ordinary rules for the construction of British statutes, namely, through an examination of its words as a means of determining the legislative intent.
Correspondingly, however, they most likely would have endorsed fully the further position of Griffith CJ and his colleagues to the effect that the Constitution was to be construed in context as an entire documentary scheme for the creation of a great federation, and that the intent of the Conventions thus was to be discerned in respect of the document as a whole, as well as of its individual provisions. To this extent, the emergence of such extra-textual doctrines as reserved powers probably would not have surprised many of the Founders, however much it may have irked those such as Isaacs J. It certainly is clear that the Founders would have expected the Constitution to be interpreted expansively in accordance with rules established by the British courts for the interpretation of colonial constitutions, and would have experienced no misgivings with the proper application of techniques like connotation-denotation.
Over all this, however, would hang the fundamental obligation of the Court ritually repeated during the Convention Debates: to maintain the federal balance so painfully achieved through the creation of the Constitution. The reality, therefore, is that the interpretative expectations of most of the Founders quite predictably seem to have anticipated the approach of the first High Court. That approach could be characterized as a commitment to textual intentionalism, but subject to a recognition that constitutions are to be interpreted expansively, and that federal constitutions are subject to a fundamental implied term of strong federalism. On no analysis, however, was it tolerant of any version of strong progressivism.
* BA, LLM (Melbourne), Barrister and Solicitor of the Supreme Court of Victoria, Foundation Dean and Professor of Law at the University of Notre Dame, Australia[.]
1 There are subtle differences between the two, with originalism comprising essentially a particularly historicist version of intentionalism, but these differences are largely immaterial for the purposes of this article. For a discussion of such issues see, generally, Jeffrey Goldsworthy, 'Originalism in Constitutional Interpretation' [1997] FedLawRw 1; (1997) 25 Federal Law Review 1; Jeremy Kirk, 'Constitutional Interpretation and a Theory of Evolutionary Originalism' (1999) 27 Federal Law Review 323.
[2] The Founders are most commonly identified as the relevant source of constitutional intention in Australian intentionalist and originalist literature: see, eg, Goldsworthy, above n 1; Greg Craven, 'The Crisis of Constitutional Literalism in Australia' in H P Lee and George Winterton (eds), Australian Constitutional Perspectives (1992) 1. Progressivist commentators sometimes argue that the relevant source of intention is comprised in the colonial populations themselves: see, eg, Kirk, above n 1, 326, 341–3; Stephen Donaghue, 'The Clamour of Silent Constitutional Principles' [1996] FedLawRw 5; (1996) 24 Federal Law Review 133, 151–2. For obvious reasons, this article proceeds on the former assumption.
[3] There is now a voluminous and recent literature on such issues in an Australian context: see, by way of example only, Goldsworthy, above n 1; Jeffrey Goldsworthy, 'Interpreting the Constitution in Its Second Century' [2000] MelbULawRw 27; (2000) 24 Melbourne University Law Review 677; Kirk, above n 1; Sir Anthony Mason, 'Constitutional Interpretation: Some Thoughts' [1998] AdelLawRw 5; (1998) 20 Adelaide Law Review 49; Justice Michael Kirby, 'Constitutional Interpretation and Original Intent: A Form of Ancestor Worship?' (2000) 24 University of Melbourne Law Review 1; Donaghue, above n 2; Craven, above n 2.
[4] As expressed in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd ('the Engineers Case') [1920] HCA 54; (1920) 28 CLR 129.
[5] See, eg, Commonwealth v Tasmania ('the Tasmanian Dam Case') [1983] HCA 21; (1983) 158 CLR 1.
[6] The phrase memorably employed by Andrew Inglis Clark in Studies in Australian Constitutional Law (1901) 21, and adopted by Deane J in Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, 171–3.
[7] As, for example, the expansion by the High Court of the power of the Commonwealth Parliament to legislate with respect to external affairs (s 51(xxix)) in the Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1.
[8] See, eg, Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, 168–73 (Deane J); Re Wakim; ex parte McNally (1999)198 CLR 511, 600 (Kirby J).
[9] For a sustained attack on progressivism as a constitutional phenomenon see Greg Craven, 'The High Court of Australia: A Study in the Abuse of Power (Thirty-First Alfred Deakin Lecture)' [1999] UNSWLawJl 47; (1999) 22 University of New South Wales Law Journal 216; see also 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.
[10] As to the different shades of progressivism see below nn 30-6 and accompanying text.
[11] For example, by a paradoxical argument to the effect that the Founders' intent is not binding per se, and that the Founders' views as to general modes of interpretation therefore may be ignored, but that as matter of policy, intentionalism as related to particular constitutional expressions and phrases nevertheless is the preferable mode of interpretation having regard to such considerations as certainty and predictability.
[12] See below nn 37–52 and accompanying text.
[13] See, eg, Craven, above n 2, 16–17.
[14] See, eg, R v Brislan; Ex parte Williams [1935] HCA 78; (1935) 54 CLR 262; Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479; and see, generally, Leslie Zines, The High Court and the Constitution (4th ed, 1997) 17–22.
[15] [1971] HCA 16; (1971) 122 CLR 353.
[16] Ibid 396.
[17] Cf Geoffrey Sawer, Australian Federalism in the Courts (1967) 197.
[18] In such cases as Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106.
[19] Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, 168–73 (Deane J).
[20] Inglis Clark, above n 6, 21; and see below nn 129–42 and accompanying text.
[21] See Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.
[22] Re Wakim; ex parte McNally (1999) 198 CLR 511, 600 (Kirby J).
[23] See, eg, Re the Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, 355; Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, 79; Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248, 321; Brownlee v The Queen (2001) 207 CLR 278, 321–2; Kirby, above n 3, 10–14; Dan Meagher, 'New Day Rising? Non-Originalism, Justice Kirby and Section 80 of the Constitution' (2002) 24 Sydney Law Review 141, 141–2.
[24] See, eg, Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248, 292–5; Re Patterson; ex parte Taylor (2001)207 CLR 391, 426–7.
[25] Re Wakim; ex parte McNally (1999) 198 CLR 511, 552 (McHugh J).
[26] [2000] HCA 29; (2000) 203 CLR 1.
[27] Ibid 41–51.
[28] Ibid 50.
[29] See below nn 32–4 and accompanying text.
[30] See above n 14 and accompanying text.
[31] See Craven, above n 2, 16–19.
[32] See the cases cited above n 24.
[33] See Leeth v Commonwealth (1992) 174 CLR 455.
[34] The term 'strong progressivism' is used accordingly throughout this article.
[35] See Leeth v Commonwealth (1992) 174 CLR 455, 481–7 (Deane and Toohey JJ).
[36] See the cases cited above n 22.
[37] [1920] HCA 54; (1920) 28 CLR 129, 145.
[38] See, eg, Paul Brest, 'The Misconceived Quest for the Original Understanding' (1980) 60 Boston University Law Review 204, 215–6.
[39] Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, 168–73 (Deane J).
[40] Re Wakim; ex parte McNally (1999) 198 CLR 511, 551–553 (McHugh J).
[41] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, 40–51 (McHugh J).
[42] Ibid 41.
[43] Re Wakim; ex parte McNally (1999) 198 CLR 511, 600 (Kirby J).
[44] Mason, above n 3, 53.
[45] Kirk, above n 1, 358.
[46] Ibid.
[47] James Crawford, 'The Legislative Powers of the Commonwealth' in Greg Craven (ed), The Convention Debates 1891–1898: Commentaries, Indices and Guide (1986) vol vi 113, 123.
[48] Donaghue, above n 2, 139.
[49] James Thomson, 'Principles and Theories of Constitutional Interpretation and Adjudication' (1982) 13 University of Melbourne Law Review 597, 606 n 39.
[50] See Craven, above n 9, 221–2.
[51] See Patapan, above n 9, 231–3.
[52] See, generally, Goldsworthy, above n 3.
[53] The Convention Debates are collected in the following volumes, and are referred to here as follows:
National Australasian Convention, Official Record of Proceedings and Debates (Sydney, 1891) (Convention Debates, Sydney, 1891);
National Australasian Convention, Official Record of Proceedings and Debates (Adelaide, 1897) (Convention Debates, Adelaide, 1897);
Australasian Federal Convention, Official Record of the Debates (Sydney, 1897) (Convention Debates, Sydney, 1897); and
Australasian Federal Convention, Official Record of the Debates (Melbourne, 1898) (Convention Debates, Melbourne, 1898).
[54] The parts of the Debates most closely analysed here are those most likely to contain discussion concerning the interpretative role of the High Court: that is, the debates concerning the Judicature Chapter, which mainly took place at Melbourne in 1898; debate on the amendment clause; and debate on the general resolutions both at Sydney in 1891 and at Adelaide in 1897.
[55] As expressed in the Sussex Peerage Claim [1844] EngR 822; (1884) 11 Cl & F 85 and applied by the first High Court in Tasmania v Commonwealth [1904] HCA 11; (1904) 1 CLR 329, 338–9 (Griffith CJ).
[56] Ibid; and see Kirk, above n 1, 344; cf Donaghue, above n 2, 153.
[57] R v Burah (1878) 3 App Cas 889.
[58] See below nn 84–6 and accompanying text.
[59] See, eg, O'Connor, Convention Debates, Adelaide, 1897, 58; Isaacs, Convention Debates, Melbourne, 1898, 717.
[60] See above nn 13–29 and accompanying text.
[62] For example, most of Chapter I of the Constitution, with the arguable exception of parts of s 51 itself, in no sense resembles a mere constitutional blueprint.
[63] See, eg, the references in Kirk, above n 1, 358 n 256. The comments there referred to of Higgins, O'Connor and Barton are of no direct relevance to methodologies of constitutional interpretation.
[64] Convention Debates, Adelaide, 1897, 937. Dobson's comments are not pertinent to the issue of progressivism.
[65] Convention Debates, Sydney, 1891, 476; Convention Debates, Adelaide, 1897, 938; Convention Debates, Melbourne, 1898, 274–8.
[66] Convention Debates, Adelaide, 1897, 129, 984; Convention Debates, Melbourne, 1898, 271–2, 344–5.
[67] Ibid 737–40.
[68] Convention Debates, Adelaide, 1897, 25. Baker's comments do not touch upon progressivism.
[69] See below nn 87–114 and accompanying text.
[70] See James Bryce, The American Commonwealth (2nd ed, 1889) 267–8, 363–8, 373–5.
[71] Ibid 374–5.
[72] Ibid 364.
[73] John La Nauze, The Making of the Australian Constitution (1972) 18–19.
[74] Convention Debates, Melbourne, 1898, 344.
[75] Ibid 283.
[76] Convention Debates, Sydney, 1891, 476; Convention Debates, Melbourne, 1898, 275.
[77] See, especially, Symon, Convention Debates, Melbourne, 1898, 344–5.
[78] See, eg, Barton, Convention Debates, Adelaide, 1897, 25; 953–6; Reid, Convention Debates, Melbourne, 1898, 272.
[79] Commonwealth, Parliamentary Debates, House of Representatives, 24 June 1903, 1340.
[80] As to which see below nn 154–68 and accompanying text.
[81] Convention Debates, Melbourne, 1898, 275.
[82] Ibid 283.
[83] Ibid 344–5.
[84] See, eg, Barton, Convention Debates, Adelaide, 1897, 25; Barton, Convention Debates, Adelaide, 952-3; Reid, Convention Debates, Adelaide, 1897, 271–2; Trenwith, Convention Debates, Adelaide, 1897, 335–6; Dobson, Convention Debates, Melbourne, 1898, 937; Downer, Convention Debates, Melbourne, 1898, 274–5; Symon, Convention Debates, Melbourne, 1898, 297.
[85] See, eg, Higgins, Convention Debates, Melbourne, 1898, 279; Carruthers, Convention Debates, Melbourne, 1898, 323.
[86] See, eg, Kingston, Convention Debates, Melbourne, 1898, 273.
[87] See, eg, Donaghue, above n 2, 139; Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, 41 (McHugh J).
[88] Convention Debates, Melbourne, 1898, 274.
[89] Ibid 275.
[90] Ibid 276.
[91] Ibid 278.
[92] Ibid.
[93] See Donaghue, above n 2, 139; Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, 41 (McHugh J).
[94] See above nn 85–7 and accompanying text.
[95] Convention Debates, Sydney, 1891, 476.
[96] This is quite consistent with views expressed by Downer during debate on the Judiciary Bill; see below n 197 and accompanying text.
[97] See Kirk, above n 1, 358.
[98] Convention Debates, Melbourne, 1898, 283.
[99] See, eg, Convention Debates, Melbourne, 1898, 283–4; 717–20; 1727–8.
[100] See, eg, Convention Debates, Melbourne, 1898, 307; 717–20.
[101] Ibid 1727.
[102] Convention Debates, Melbourne, 1898, 1727–8.
[103] See below n 203 and accompanying text.
[104] See below nn 228–33 and accompanying text.
[105] Convention Debates, Adelaide, 1897, 129.
[106] Ibid 129.
[107] Convention Debates, Melbourne, 1898, 344.
[108] Ibid 344.
[109] See below nn 171–5 and accompanying text.
[110] See, eg, Convention Debates, Adelaide, 1897, 129; Convention Debates, Melbourne, 1898, 271–2; 1723.
[111] Convention Debates, Melbourne, 1898, 739.
[112] Ibid.
[113] Ibid.
[114] Ibid 740. It should be noted that the counsels of Glynn and his allies concerning the need for a flexible amendment procedure were heeded during the debate on the clause that was to become s 128. Consequently, that provision as adopted included within it a mechanism that, at least theoretically, would permit a referendum in the event of a deadlock between the state and the House of Representatives over a bill for constitutional alteration.
[115] See above nn 55-62 and accompanying text.
[116] Ibid.
[117] See, eg, the reliance of Deane J (in Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, 168–73) on the work of Andrew Inglis Clark, above n 6; the reliance of McHugh J (in Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, 40–51) on the comments of Downer; the reference made by Sir Anthony Mason to the evolutionary sentiments of Deakin, above n 44; Kirk's citation of Isaacs, Higgins and Deakin as having displayed elastic approaches towards constitutional interpretation during the Convention Debates, above nn 45–6; Donaghue's similar use of the comments of Downer, above n 48; and see the general conclusions drawn concerning the contents of the Convention Debates, above nn 115–17 and accompanying text; the conclusions drawn concerning the actual significance on this point of the comments of Andrew Inglis Clark, below nn 135–41 and accompanying text; and the comments concerning the inherent limitations of Deakin's remarks made during debate on the Judiciary Bill, below nn 160–8 and accompanying text.
[118] Richard Chaffey Baker, A Manual of Reference to Authorities for the Use of Members to the National Australasian Convention (1891).
[119] Robert Garran, The Coming Commonwealth (1897) 66–7, 152–4.
[120] Robert Garran and John Quick, Annotated Constitution of the Australian Commonwealth (1901) 793.
[121] Ibid 792.
[122] Robert Garran, Prosper the Commonwealth (1958) ch xiv 'Development of the Constitution'.
[123] John Quick and Littleton Groom, The Judicial Power of the Commonwealth (1904) 126–9.
[124] Henry Higgins, Essays and Addresses on the Australian Commonwealth Bill (1900).
[125] Alfred Deakin, The Federal Story (ed Herbert Brookes) (1944).
[126] John Cockburn, Australian Federation (1901).
[127] Bernard Wise, The Making of the Australian Commonwealth 1889–1900 (1913).
[128] Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, 168–73 (Deane J).
[129] Inglis Clark, above n 6.
[130] Ibid 24–7.
[131] Ibid 14–18.
[132] Ibid 21.
[133] Ibid 25-27. Inglis Clark's reference is to Thomas Cooley, The General Principles of Constitutional Law in the United States of America (3rd ed, 1898).
[134] Ibid 27.
[135] Goldsworthy, above n 3, 692–3.
[136] Inglis Clark, above n 6, 21.
[137] Ibid 19.
[138] Ibid 19–20.
[139] Ibid 21.
[140] Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, 172 (Deane J).
[141] James Thomson, 'Constitutional Authority for Judicial Review: A Contribution from the Framers of the Australian Constitution’ in Greg Craven (ed) The Convention Debates 1891-1898: Commentaries, Indices and Guide (1986) 173, 178.
[142] La Nauze, above n 73, 271, 287.
[143] William Harrison Moore, The Constitution of the Commonwealth of Australia (1902).
[144] Ibid 236.
[145] Ibid.
[146] Ibid 332.
[147] William Harrison Moore, 'The Constitution and its Working' in J Holland Rose, P Newton and E A Berians (eds), The Cambridge History of the British Empire (1933) 455, 474.
[148] Ibid.
[149] Ibid.
[150] See, eg, Glynn, above nn 111–14 and accompanying text; and Downer, above nn 87–96 and accompanying text.
[151] See, eg, the comments of Glynn, Commonwealth, Parliamentary Debates, House of Representatives, 9 June 1903, 622–8.
[152] See, eg, the comments of Glynn, ibid 622–30; and Hughes, ibid 697–704 for examples of anti-High Court rhetoric.
[153] See, eg, the comments of O'Connor, Commonwealth, Parliamentary Debates, Senate, 29 July 1903, 2695.
[154] Commonwealth, Parliamentary Debates, House of Representatives, 18 March 1902, 10962–89.
[155] See, eg, Kirk, above n 1, 358; Mason, above n 3, 52–3.
[156] Commonwealth, Parliamentary Debates, House of Representatives, 9 June 1903, 643.
[157] Commonwealth, Parliamentary Debates, House of Representatives, 8 July 1903, 1875–6.
[158] Commonwealth, Parliamentary Debates, House of Representatives, 8 March 1902, 10965.
[159] Ibid 10967-8.
[160] Ibid 10987.
[161] Ibid 10968.
[162] Ibid.
[163] Ibid 10988.
[164] See, eg, Commonwealth, Parliamentary Debates, House of Representatives, 8 July 1903, 1866–7.
[165] See, eg, Commonwealth, Parliamentary Debates, House of Representatives, 9 June 1903, 589.
[166] See, eg, Commonwealth, Parliamentary Debates, House of Representatives, 11 June 1903, 838–41.
[167] Commonwealth, Parliamentary Debates, House of Representatives, 8 July 1903, 1866–7.
[168] See, eg, Commonwealth, Parliamentary Debates, Senate, 29 July 1903, 2818.
[169] Ibid.
[170] Ibid.
[171] See above nn 105–10 and accompanying text.
[172] Commonwealth, Parliamentary Debates, Senate, 31 July 1903, 2934.
[173] Ibid.
[174] Ibid 2934–5.
[175] Nevertheless, he somewhat problematically continued to assert the fundamental role of the High Court as upholder of the federal balance: ibid 2927.
[176] Commonwealth, Parliamentary Debates, Senate, 5 August 1903, 3044.
[177] Ibid.
[178] Commonwealth, Parliamentary Debates, House of Representatives, 11 June 1903, 1128.
[179] Ibid.
[180] Commonwealth, Parliamentary Debates, House of Representatives, 14 June 1903, 1318.
[181] Commonwealth, Parliamentary Debates, House of Representatives, 8 July 1903, 1906.
[182] Commonwealth, Parliamentary Debates, Senate, 29 July 1903, 2827.
[183] Commonwealth, Parliamentary Debates, House of Representatives, 9 June 1903, 630.
[184] Commonwealth, Parliamentary Debates, House of Representatives, 10 June 1903 698.
[185] Ibid 699.
[186] Ibid 699–702.
[187] See ibid 699–703.
[188] Ibid 745.
[189] Commonwealth, Parliamentary Debates, House of Representatives, 11 June 1903, 797.
[190] Commonwealth, Parliamentary Debates, Senate, 29 July 1903, 2824.
[191] See Parliamentary Debates, above n 168.
[192] Commonwealth, Parliamentary Debates, House of Representatives, 8 July 1903, 1887.
[193] Commonwealth, Parliamentary Debates, Senate, 29 July 1903, 2711.
[194] Ibid 2712.
[195] Convention Debates, Adelaide, 1897, 937.
[196] Commonwealth, Parliamentary Debates, Senate, 29 July 1903, 2722.
[197] Commonwealth, Parliamentary Debates, House of Representatives, 5 August 1903, 3058.
[198] Commonwealth, Parliamentary Debates, Senate, 29 July 1903, 2693–4.
[199] Ibid 2694.
[200] Ibid 2695.
[201] Parliamentary Debates, above n 176.
[202] Commonwealth, Parliamentary Debates, House of Representatives, 11 June 1903, 801.
[203] Commonwealth, Parliamentary Debates, House of Representatives, 10 June 1903, 719–33.
[204] Quick does not specifically address the issue of progressivism but, unsurprisingly given the treatment in Quick and Garran (above n 120), is generally hostile to Deakin's approach: Commonwealth, Parliamentary Debates, House of Representatives, 9 June 1903, 643.
[205] [1904] HCA 11; (1904) 1 CLR 329.
[206] Ibid 339.
[207] Ibid 339-40.
[208] Ibid 348.
[209] Ibid 346–7.
[210] Ibid 348.
[211] Ibid 358–9.
[212] [1904] HCA 57; (1904) 1 CLR 585, 630.
[213] See, eg, R v Barger [1908] HCA 43; (1908) 6 CLR 41, 83–5 (Isaacs J); 112–14 (Higgins J).
[214] A-G (NSW) ex rel Tooth and Company Limited v Brewery Employees Union of NSW [1908] HCA 94; (1908) 6 CLR 469, 600 (‘Union Label Case’).
[215] Ibid 559.
[216] See, eg, Tasmania v Commonwealth [1904] HCA 11; (1904) 1 CLR 329, 338 (Griffith CJ); Peterswald v Bartley [1904] HCA 21; (1904) 1 CLR 497, 507 (Griffith CJ).
[217] See, eg, Peterswald v Bartley [1904] HCA 21; (1904) 1 CLR 497, 507 (Griffith CJ); D'Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91, 110–11 (Griffith CJ).
[219] See, eg, R v Barger [1908] HCA 43; (1908) 6 CLR 41, 83–5; Union Label Case [1908] HCA 94; (1908) 6 CLR 469, 559; Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330, 388.
[221] La Nauze, above n 73, 271–2.
[222] See, eg, R v Barger [1908] HCA 43; (1908) 6 CLR 41; Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330, 388.
[223] [1908] HCA 94; (1908) 6 CLR 469, 501 (Griffith CJ); 521-2 (Barton J); 533 (O'Connor J); 600–10 (Higgins J); and see Federated Saw Mill, Timber Yard and General Woodworkers Employees Association of Australasia v James Moore and Sons Pty Ltd (‘Saw Millers Case') [1909] HCA 43; (1909) 8 CLR 465, 487 (Griffith CJ).
[224] See above nn 14, 30, 95–6, 164–5 and accompanying text.
[225] See above nn 129–41 and accompanying text.
[226] See above nn 154–67 and accompanying text.
[227] [1908] HCA 94; (1908) 6 CLR 469, 533.
[228] See, eg, R v Barger [1908] HCA 43; (1908) 6 CLR 41, 83–5.
[229] Cf Sawer, above n 17, 196–202.
[230] [1920] HCA 54; (1920) 28 CLR 129, 145 (Knox CJ, Isaacs, Rich and Starke JJ).
[231] See Kirk, above n 1, 358.
[232] See, eg, Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330, 388.
[233] See generally Greg Craven, 'Cracks in the Façade of Literalism: Is There an Engineer in the House?' [1992] MelbULawRw 2; 18 (1992) Melbourne University Law Review 540, 551–7.
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