CONSTITUTIONAL INTERPRETATION
PRE-ENGINEERS APPROACH TO INTERPRETATION
The Doctrine of Implied Immunity of Instrumentalities- Commonwealth & State governments operating in the same geographical territory are immune from each other’s laws: D’Emden v Pedder; Deaken v Webb; Railway Servants’ Case; Municipal Rates Case
- The doctrine came from the necessity of federalism The Doctrine of Reserved State Powers
The States held their traditional areas of law-making power, and that the grants of law-making power of the Commonwealth must be narrowly construed so as not to encroach on these traditional powers of the States
MODERN-APPROACH TO INTERPRETATION
Engineers’ Case: Constitution should be interpreted in their ‘natural & ordinary’ meaning
- It is grounded in a positivist philosophy: belief that people can agree on the meaning of language in context & they can apply this shared understanding to the resolution of problems
-The High Court held that the Constitution should be interpreted in accordance with the ordinary principles of statutory interpretation, rather than with any doctrine said to be ‘implied’ by the Constitution
- The approach adopted is often referred to as a ‘literal approach’, as it emphasises the importance of the express language of the Constitution in establishing constitutional meaning
- The Golden Rule of statutory interpretation required the court ‘to discover in the actual terms of the instrument their expressed and necessary implied meaning’
- Rejected the use of external political principles or policies to interpret the Constitution – restricted to legalism
The Jumbunna Principle: Constitutional should be interpreted broadly
- McCulloch v Maryland: the provisions of the constitution is drafted to endure the ages.
- Jumbunna Coal Mine: It must always be remembered that we are interpreting a Constitution that is broad and general in its terms and is intended to apply to the varying conditions which the
development of our community must involve (O’Connor J): the Court should always lean to the broader interpretation, unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose
METHODS OF CONSTITUTIONAL INTERPRETATION
Historical materials – reference can be made to the Convention Debates
- Regard can be made to the history of a constitutional provision, including the Convention Debates, for the purpose of identifying the meaning of language, the subject to which the language was directed and the nature and objectives of the movement towards federation (Cole v Whitfield) - Convention debates not to be used for the purpose of substituting the meaning of the words and
giving the scope and effect which founding fathers subjectively intended (Cole v Whitfield)
Intentional originalism – attempt to use the original subjective intentions of the framers (Callinan J, Work Choices)
- Has been argued that the Australian people did not consent to be governed by the intentions of the Founding Fathers but by the words of the Constitution itself (NSW v Commonwealth, Deane J at 511)
Textual originalism – focus is NOT the subjective intentions of framers
- Gives effect to the original meaning of the Constitution as it would have been understood in 1900 - The search is ALWAYS for the objective intention of the makers of the Constitution (McHugh J) - Inquiry is not into what a particular framer intended what the meaning was, but rather it is what
the framers may be supposed to have taken for granted or understood, or what must be taken to have been within their knowledge (Heydon)
- “originalist” in the sense that the statute is construed by reference to the concepts current at the time when it was enacted rather than those current at the time when it is construed (Heydon) - The background of the Constitution can be used as an interpretative aid (Eastman v The Queen, per
McHugh J)
Incremental Accommodation
- Words have a fixed CONNOTATION: the essential meaning of the Constitution must remain the same
- but their DENOTATION may differ from time to time (Street v Queensland per Dawson J) Purposive Interpretation – The idea of a “living” constitution
- Judges should adopt a large and liberal interpretation rather than a narrow and technical construction (Viscount Sankey LC)
- Deane J refused to be bound by “the dead hand of the past” or at least to allow an “unexpressed intention of the framers of the Constitution” to override the natural implications to be drawn from the provisions (Theophanous)
- Ultimate question to be asked: what do the words of the text mean in our time – there must be an adaptability of tis great principles to cope with current problems and needs (Kirby J in Brownlee) - Interpretation should be guided by the subjective and objective purposes: interests, goals, values,
aims, policies and function that the constitution text is designed to actualise in a democracy (Aharon Barak)
Strategic Compromise – a combination of originalism and “living constitutionalism”
- “Moderate originalism” by Jeffrey Goldsworthy – look to the founders’ intentions only insofar as they are ascertainable from publicly available evidence. Give weight to the conceptions of the principles and purposes but not necessarily of their application to the particular facts
CHARACTERISATION
EXAM LOGIC:
1. Does the federal law in question is a law ‘with respect to’ a s 51 power?
2. If yes, are there any express or implied constitutional limitations that might render the Commonwealth law invalid?
General principles:
1. The constitutional test is to be construed ‘with all the generality which the words used ambit’ (Jumbunna)
2. The character of the law in question must be determined by reference to the rights, powers, liabilities, duties and privileges which it creates (Bank Nationalisation Case) 3. The practical, as well as the legal operation of the law must be examined to determine if
there is a sufficient connexion between the law and the head of power (Burton v Honan) 4. If a law is characterised as one with respect to a head of Commonwealth power, it does
not matter that it also affects a matter not included in the heads of Commonwealth power (Fairfax, per Mason CJ)
5. If a sufficient connection with the head of power does exist, the justice and wisdom of the law, and the degree to which the means it adopts are necessary or desirable, are matters of legislative choice (Herald & Weekly Times v Commonwealth)
INTERACTIONS BETWEEN THE HEADS OF POWER
Primary Rule: Each head of power should be construed independently according to its natural meaning, so that one head of power cannot be used to limit the scope of another (Engineers Case; Pidoto v Vicoria)
Secondary Rule: an EXCEPTION to the primary rule, the restrictions expressed in one head of power may operate to restrict the scope of other heads of powers as well (Bourke) e.g., s 51(xii) “Banking, other than State banking” limits other heads of powers such as the
Corporations power
SUBJECT MATTER POWERS
1. Subject matter: where the power is said to be one of the subject matter, the test is one of sufficient connection.
a. Class of legal, commercial, economic or social transaction or activity: trade and commerce, banking, marriage
b. Public service: postal, installations, lighthouses c. Undertaking or operation
d. Recognised category of legislation: taxation, bankruptcy
Sufficient Connection
- Does the operation of the law come within the central area of the grant of legislative power contained in s 51? (Re F; Ex Parte F)
-The connection must be that it is not so ‘insubstantial, tenuous or distant that it cannot sensibly be described as a law ‘with respect to’ the head of power (Re Dingjan, McHugh J)
The Role of Purpose
- Motives and objectives of Parliament are not relevant
- Characterisation does not involve political judgments or subjective evaluations, but can be performed objectively on strict legalistic principles (ANA Case)
