Federal Constitutional Law – 2019
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INDEX
Background + overview of FCL ……… 3
HC’s interpretation of the Constitution (incl tussle between Cth and State) ……….. 8
Theories of constitutional interpretation (incl role of Courts) ………... 14
Characterisation ……….. 24
Inconsistency (brief) ……… 31
External affairs power ………. 34
Trade and commerce power ……….. 40
Corporations power ………. 44
Races power ………. 50
Taxation power ………. 55
Grants power ………. 61
Inconsistency (main) ……… 64
Manufacturing inconsistency ……… 69
Manufacturing consistency ………... 71
Melbourne Corporation ……… 75
Freedom of interstate trade and commerce ………. 81
Implied freedom of political communication ………. 88
Judicial power and detention ……….. 97
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Background to the Constitution and overview of FCL
“The Australian Constitution is a product of a particular political moment – best described as the push towards federalism – which circumscribes the framers’ choice about how to achieve these goals, gives the constitution its basic identity and structures future constitutional development.”
Constitution originally an imperial statute through which self-governing colonies agreed to subject themselves to a new political entity – the Commonwealth
o Purpose: to channel govt power so that it can be harnessed for the good of the nation + check govt power so as to preserve individual freedom
o Strengths: contribution to political stability; meaning determined incrementally over time o Weaknesses: inability to adapt to post-WWII rights revolution and changing relationship
of Cth and States (driven largely by economic imperatives in age of globalization)
Almost half the provisions are devoted to the federal Parliament – suggesting that it was the establishment and effective operation of this political institution that was the overriding preoccupation of the framers
o Had little to say about State powers because those were known and could be assumed – today, the Constitution’s silence on State powers reflects the diminished status of the States in the Australian political system
Build up to federation and passing the Constitution
Push towards federation in late 19th century due to a desire facilitate co-operation on matters of mutual interest eg: intercolonial tariffs, protectionism and military concern
Led to series of conferences building he momentum for the federalist cause
1895-1898: Convention of premiers of the Australian colonies met to discuss an amended draft with added provisions re “responsible government”. After ratification by 5 colonies (excl WA), the Bill was presented to British Imp. Parliament with a request to enact
1900: Before Bill was passed, imp. Government inserted the right to appeal from the High Court to the Privy council on constitutional matters concerning the limits of the powers of the Cth or States could not be curtailed by parliament --> Commonwealth of Australia Constitution Act was passed by British Parliament in 1901.
1901: Commonwealth of Australia was officially established on 1 January 1901
Statute of Westminster and the Australia Acts
Although Federation in 1901 is widely regarded as Australia’s moment of “independence” from Britain, legally the Cth was a creation of the British Parliament through the Commonwealth of Australia Constitution Act 1900 (Imp), which applied to Australia by paramount force --->
therefore Australia was still legally just a self-governing colony of the UK and there was continued uncertainty as to the applicability of British Imperial Laws to the Cth.
1942 (Statute of Westminster 1931) – Adopted by the Cth in 1942, the Statute of Westminster freed the Dominions, including the Commonwealth of Australia, from imperial restrictions and removed nearly all of the British Parliament’s remaining authority to legislate over the Cth. This is when Australia truly became a de jure sovereign nation
Australia Act 1986: in addition to ending the British Parliament’s power to legislate over Australian states, the Australia Act also severed the last avenues of appeal from the Australian courts to the Privy Council. As of then, the only way in which the Constitution can be amended is via the referendum mechanisms (notably s 128).
4 Main features and influences:
Federalism – both to channel and check power (ensures federal govt is strong enough to promote interests of a nation as a whole, while allowing for regional innovation and dispersal of power between Cth and States)
Responsible government – both to channel and check power (government by party enjoying majority support, and thus capable of taking nation with it, but responsible to electorate via Parliament)
Separation of judicial power – at federal level, but less so at State level
American influence UK influence
Federalism with enumerated Cth powers and residual State powers
Parliamentary sovereignty with rights protected through CL and statute
HC with power to strike down legislation for incompatibility with Constitution
Responsible government Separation of powers (but less absolute than US
system – eg s 64 provides that federal ministers must be members of Parliament)
Representative government
But two aspects of the duality of our Constitution are at odds:
1. Cth Prime Minister and Cabinet are responsible to people via need for support in House of Reps (ie representative govt)
2. But power is also constrained by Senate and State govts, over whom only relevant State electorates exert control
NB** the two aspects can be theoretically reconciled by strengthening Cth powers (so that electorate disciplines the most powerful govt in country) or by strengthening State power (disciplined by regional electorates)
WW1 exerted external pressure in favour of strengthening Cth powers vis-à-vis States that has continued ever since ----> HC’s interpretation of Constitution since has also tended to support this trajectory.
Key Q: whether the HC’s interpretation was influenced by these external pressures or whether strengthened Cth powers was the internal logic of the Constitution all along (or a bit of both)
TRENDS
Centralising tendency of HC constitutional law doctrine ---> the tendency for the Cth’s legislative powers to be interpreted more and more expansively at the expense of State powers
Different schools of interpretation that allow judges to adapt the constitution to changing circumstances (see p 6 below)
Increasing importance of constitutional safeguards related to the nature of judicial power
Minor themes:
o Influence of judicial personality/philosophy on decision-making
o Other non-legal influences – economic integration of Australia, the pressure of globalization and changes in social attitudes
5 Division of Cth and State power
S 51 assigned to the Cth Parliament a specific list of powers (40 paras worth) relating to a range of subjects and purposes – powers not thus assigned are left to be exercised by the States
Power of the States
Some v v specific powers are delegated to the states eg: s 100 (water rights) ---> reason why constitution is not so explicit about state powers is because of residual powers
Interpretation and the role of conventions
Alongside the text of the Constitution, the Statute of Westminster, the Australia Acts, letters patent issued by the Crown and Constitutional conventions are an important aspect of the Constitution, which have evolved over the decades to define ow various constitutional mechanisms operate.
In line with the CL tradition in Australia, the law on interpretation and application of the Constitution has developed largely via judicial guidance from the HC of Australia. In a number of seminal cases, the HC has developed several doctrines which underpin constitutional interpretation incl:
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Separation of powers – the existence of three separate chapters dealing with the three branches of govt implies a separation of powers, similar in principle to the US but unusual for a Westminster system. Eg: Legislature cannot purport to predetermine the legal outcome, or to change the direction or outcome of a court case
Division of powers – Powers of govt are divided between the Cth and the State governments, with certain powers being exclusive to the Cth, others being concurrently exercised, and the remainder left to the States
Implied Intergovernmental immunities (deals with Cth’s ability to bind the states) – NOTE, this was generally refuted by Engineers, which held that there was no general immunity between State and Cth governments from each other’s laws.
o However, the principle does hold true in some regards: eg the Cth cannot enact taxation laws that discriminate between the States or parts of the States (s 51(ii)), nor enact laws that discriminated against the States, or such as to prevent a State from continuing to exist and function as a State.
Heads of power
External affairs power (s 51(xxix))
Trade and commerce power (s 51(i))
Corporations power (s 51(xx))
Races power (s 51(xxvi))
Defence power (s 51(vi))
Taxation power (s 51(ii)) – subject to internal/specific limitations
Grants power (s 96)
Other types of constitutional challenges:
Type 1: challenge to validity of new Cth legislation on basis that is outside head of power
Type 2: challenge to validity of Cth legislation on basis that, although characterisable as falling within head of power, it violates an express or implied limitation on Cth’s legislative power
Type 3: challenge to exercise of Cth executive power on basis that it is contrary to Constitution
Type 4: challenge to validity of State legislation on basis that it is inconsistent with valid Cth legislation or falls within exclusive Cth power
The boundaries of judicial choice
How much discretion do judges really have if they want to maintain legitimacy?
What approaches to judicial decision making best fit the constitutional role that judges play?
!!!!!!! Vast majority of constitutional cases before HC deal with characterization i.e. whether new laws fall within a permissible head of power granted to the Commonwealth government by
the Constitution
1st inquiry: Does the Commonwealth/State have POWER to pass the law under any head?
2nd inquiry: Does the law breach any constitutional PROHIBITION?
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Engineers (1920):
o Start with the Constitutional text
o Look to settled rules of construction: in particular, give words their natural meaning.
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HC’s interpretation of the Constitution
Cth Parliament needs support from a s 51 head of power in order to have the power to legislate.
Precedent and overruling
Because HC is an apex court, they have concluded – on the basis of their supervisory responsibility for sound development of the law, that they should not be bound by their own decisions
o Wurridjal v Commonwealth (2009): reasonable minds may differ on a point of constitutional interpretation
o Buck v Bavone (1976): The task is to apply the Constitution, not the judicial decisions”
o Second Territory Senators Case (1977): But convinced of their error, the duty to express what is the proper construction is paramount
Reading Down and Severance
HC uses these remedies to avoid declaring a provision invalid, or to declare only so much of a statute invalid as is found to be in conflict with the Constitution
Reading down = Court orders that the impugned law should be read in a way so as to not apply in another particular way that would be unconstitutional
o Eg: Wilson v Minister for ATSI Affairs (1996): where statute authorizes a Minster to confer certain functions on a ‘person’ but the Constitution forbids those functions to be
performed by a judge – the Court ordered that the word ‘person’ should be read as excluding a judge
o May not be used where law was intended to operate fully and completely according to its terms or not at all (Pidoto); or where Court finds multiple ways to read down in
accordance with multiple possible P’mentary intentions
Severance = Court preserves those parts of a document that can stand independently of other parts that have been found to be unlawful
o May only be used where rest of the statute is capable of operating on its own without the problem parts
o Blue Pencil Test: where offending part/language can be struck out, and the remaining is substantially the same law and concept, the court may sever that part (R v Poole) o Divisible: where there are particular clauses, provisos or qualifications, as the subject of
the distinct or separate legislation that is beyond legislative power (R v Poole)
Unless it would so change the act *eg by removing clauses/qualifications) that the legislation would not intend for it to stand or operation is substantially changed
o Limitations = Kirby J in Workchoices: Court cannot “manufacture a new web” because of SOP
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Addressing the tussle between Cth and State powers
Heads of power granted to Cth are contained in s 51 (see p 4 above)
2 doctrines were initially thought to protect the states from Cth interference: (1) implied immunities doctrine, and (2) reserved state powersImplied immunities doctrine
When you combine the doctrines of concurrent power and federalism, the question arises as to whether the states or Cth could be bound by each other’s laws. The response to this was that given two levels of govt in the same geographical location, the govts must normally be immune from each others’ laws ----> primarily cos reciprocal immunity was thought to be necessarily implied in the very idea of federalism (as opposed to being expressly stated in the Constitution)
D’Emden v Peddler (1904):
o Facts: Cth officer did not want to pay State taxes ----> Held: Cth is a sovereign power and only subject to restrictions imposed by imperial connection
o Cth and States seen as separate sovereign entities ‘within the ambit of their authority’, subject to the ‘Imperial connection and to the provisions of the Constitution’ [109]
o Similar facts and decision in Deakin v Webb
Railways Servants’ Case (1906):
o Issue: Whether a State govt agency could be registered under Cth legislation (CCAA) ---->
o Held: HCA not only reaffirmed “implied immunities” doctrine but ruled that it works both ways (ie State cannot interfere with Cth). Court held that NSW Union representing employees of a State govt agency could not be registered under the federal conciliation and arbitration scheme because this would be incompatible with the reciprocal immunities of the Cth and States.
Steel Rails Case
o Facts: When NSW govt was importing steel wire from the UK for construction of railways, the Cth govt tried to tax this and claim State govt was liable to pay
o Held: Implied immunities doctrine was derived by implication, and could not override any express provision of the Constitution (ie s 90 which gives Cth the power to impose customs and s 51(i) which gives Cth power to regulate foreign trade within their jurisdiction o Barton J: ‘Where the Cth has exclusive power, the doctrine of implied
State immunities cannot apply’
Reserved state powers
Doctrine that was used to rationalise grants of legislative power by States to the Cth - ---> idea that Const. had impliedly reserved to the States their traditional powers (any legislative powers not given to the Cth are left to the states)
Consistent with notion of Federalism i.e. sharing of powers b/w states
Doctrine is essentially detrimental to Cth, as it confers power to States under s107 of the Const.
S107 of the Constitution – see p 4 above – involved the idea that Constitution had impliedly ‘reserved’ to the States their traditional areas of lawmaking power
R v Barger (1908):
o Facts: Cth wanted to tax agricultural implements based on certain conditions it imposed ---> Held: Bcos labour regulation is not a Cth head of power, it is therefore a residual power left to the States and Cth has no power to tax or regulate it
10 o By 3:2, Court held that because the subject-matter law of the
impugned legislation was within state legislative power, it therefore could not lie within the Cth’s taxation power = reserved powers o Reserved powers doctrine makes sense in the context of why the
Constitution was even formed – as it was intended to give Cth as many powers as necessary for the working of the federation but nothing more. The States would only lose their powers to the extent that the constitution explicitly took them away
AG v Brewery Employee Union of NSW
o Facts: NSW govt faced intervention by the Cth when conducting internal State trade ---> Held: Cth only has power to regulate international and interstate trade, but internal State trade is not mentioned in s 51. Thus, it must be a reserve power left to the States under s107
CURRENT LAW on Interpretation (Engineers)****
Engineers did 2 things:
1. Overthrew the “implied immunities” and “reserved State powers” doctrines; and
2. The rhetoric by which Isaacs CJ supported the above result spelled out principles of constitutional interpretation that were to be deeply influential: ie literalism.
Engineers Case (1920)
Facts: Union of engineers had a claim in the Cth CCCA for an award to its members across Australia.
Some of the employers who employed these members were from State agencies.
Issue: Whether a Cth law made under the Cth’s “conciliation and arbitration” power (s 51 xxxv) could authorize the making of a Commonwealth award binding 3 WA state governmental employers Outcome:
Cth Parliament had power under s 51(xxxv) to make laws binding on the States with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond limits of any one State. The exercise in this case fell within the power, based on the plain/literal meaning of the part. Nothing in s 51(xxxv) suggests that Cth’s industrial relations power cannot be used to bind State instrumentalities.
o Hence, both the implied immunities doctrine and reserved powers doctrine are abolished o To do otherwise would be a departure from Jumbunna principle
o Court held that ---> 1st step = look at the literal meaning of the words
o In essence – when interpreting the Const. – the proper rules of stat. interpretation are to be followed
ISAACS CJ:
o ‘To interpret the Const. based on an implication which is formed on a vague, individual conception of the spirit of the compact, which is not the result of interpreting specific language to be quoted, nor referable to any recognised principle of the CL ….. this method of interpretation cannot, we think, provide any secure foundation for Cth and State action’
o To restore order, and in keeping with its constitutional institutional function, Court needed to return to the literal meaning of the C and interpret it as an ordinary statute
11 o It is the HCA’s duty to expound and give effect to the C according to its own terms,
finding the intention from the words of the compact, and upholding it throughout precisely as framed
o Implied immunities doctrine cannot provide a secure foundation for Cth or State action, and must inevitably lead to divergences and inconsistencies more and more pronounced as the decisions accumulate ----> the US authorities are not a secure basis on which to build fundamentally wrt our own Constitution
Settled rules of construction were applied
o Citing Lord Haldane in Vacher’s case (1913) – “in the proper interpretation … exclude the consideration of everything except the state of the law as it was when the statute was passed and in light of reading it as a whole, before attempting to construe any particular section”
o ISAACS CJ: the one clear line of judicial inquiry as to the meaning of the Constitution MUST be to read it NATURALLY in light of all the circumstances in which it was made, with knowledge of the combined fabric of the CL, and the statute which preceded it
S 107 (reserved state powers) does not detract from s 51 heads of power
o It is a fundamental and fatal error to read s107 as reserving any power from the Cth that falls fairly within the explicit terms of an express grant in s51.
o The moment it encounters repugnant Cth legislation operating on the same field, the State legislation must give way: s 109.
o S 109 gives supremacy to every Cth Act, over not merely State Acts passed under concurrent powers but ALL State Acts, though passed under an exclusive power, if any provisions of the two conflict (this is the true foundation of D’Emden)
Relevance/effect:
Engineers case overruled many earlier HC cases, notably Railway Servants, by holding that the doctrine of implied immunities was not reciprocal
However, it did not technically override (actually reaffirmed) D’Emden v Pedder. That decision can now be explained in terms of s 109 which resolves inconsistency of laws in favour of the Cth
After overturning the 2 const. doctrines in Engineers, the HCA essentially insisted that the Const must be read naturally in light of the circumstances in which it was made, with the knowledge of the combined fabrics of the CL and the statute law which preceded it
o This places an emphasis on literal interpretation; where the literalism is carried out within the context of traditional legal principles and techniques
But note, this case had broader connotations (now seen more as hybrid of legalism/literalism) – see const. interpretation section below
o McHugh J in Eastman v the Queen: the approach in Engineers is probably best described as legalism with textualism as the instrument in that legalism – the search is always for the objective intention of the makers of the Const
Reactions to Engineers
Victoria v Commonwealth (Payroll Tax case) (1971)
o Windeyer J assessed reasons behind Engineers decision:
States were not sovereign before 1901 in any real sense, thus doctrine of implied immunities was doomed from the start
Strengthening of Cth legislative powers at expense of States’ powers is logical consequence of s109
Change brought by Engineers was driven by growing external sentiment of nationhood
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Suggests that interpretation of C is not just a matter of strict legal technique, but varies and develops ‘in response to changing circumstances’ in the manner of CL development
Richard Latham:
o Real ground for Engineers decision was majority’s policy preference for strong Cth powers post WW1
o To achieve this result they needed to reject relevance of American doctrine of implied immunity of instrumentalities, even tho that doctrine was based on a Constitution that was structurally similar to Australia’s
o Thus the majority’s new, literalist method of C interpretation in Engineers was not the actual cause of the decision – rather the way in which the Court sough to justify its legally unconstrained policy preference.
Jumbunna Coal Mine case (1908)
HC unanimously adopted a similar approach to C interpretation as Engineers
Judgement of O’Connor J was a classic example of interpretative technique supported partly by
“literalism” and partly by appeal to established legislative usage
Issue: was the statutory definition of “industry” wide enough to extend to such occupational groups as cooks and hairdressers?
Appellants argued that this was too wide, since the phrase “industrial disputes” in s 51(xxxv) must be construed according to a narrower definition of industry
Outcome:
O’Connor J rejected appellants’ argument, adopting a similar broad approach to Const.
interpretation as in McCulloch v Maryland (US case – see directly below) – “Where the question is whether the constitution has used an expression in the wider or narrower sense, the Court should … always lean to the broader interpretation unless there is something in the context or in the rest of the C to indicate that the narrower interpretation will best carry out its object and purpose”
It must always be remembered that we are interpreting a C broad and general in its terms,
intended to apply to the varying conditions which the development of our community must involve [367-368]
McCulloch v Maryland (1819)
Held: Congress had the Const. power to establish a national bank and that the State of Maryland did not have the power to tax such a bank
o ‘This word, then, like others, is used in various senses; and, in its construction, the subject, the context, the intention of the person using them, are all to be taken into view’
i.e. because times change, and the Const. is designed to endure, it should be interpreted generally and in alignment with the time of its interpretation.
o ‘Let the end be legitimate, let it be within the scope of the Const., and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Const, are constitutional’
Jumbunna principle = interpretation technique of literalism on a close authoritative textual reading, as derived from McCulloch v Maryland
13 R v Public Vehicles Licensing Appeal Tribunal (1964)
Cth powers should be ‘construed with all the generality which the words used permit’
Dictum was repeated in Grain Pool (2000)
Pape (2009)
In dissenting, Heydon J tries to rein in the indiscriminate use of dicta from the above three cases
Says constitutional grants of power should not be given wide meaning where context indicates otherwise (context incl. federal nature of the C and history of its enactment)
CHEATSHEET OF RULES ON INTERPRETATION
Plain and natural meaning: need to give the words of the Const their plain and natural meaning (Engineers)
Context and text: “the words in the Constitution should be interpreted with all the generality of what the words permit” (Dixon J in Bank Nationalisation citing Jumbunna principle in guiding how to apply process of characterisation
Implications: some implications can be made into the text, where they are suggested by the structure or text of Const: Lange v ABC --> incl freedom of political communication due to const. prescribed system of representative/responsible govt: ACTV
Cth legislative power is to be interpreted broadly: so as to give flexibility to the document to deal with varying conditions (Jumbunna)
o Parliament is able to make and unmake any laws it wishes within its HOPs (Arthur Yates & Co;
Kartinyeri)
Connection with HOP
o Cannot be too remote or indirect to be properly characterised as law wrt subject matter/purpose (Re Dingjan) ---> Look to substance of the law rather than form (Bank of NSW v Commonwealth) o Words can refer to either their contemporary meaning (denotation) or the meaning at the time of
enactment (connotation) o Power to legislate includes:
Regulating the pursuit (Murphyores)
Prohibit its occurrence, whether absolutely or conditionally (Murphyores)
Participate itself (Australian National Airways)
Protect the rights held by it (Actos and Announcers Equity Association)
o Where there is an express exclusion, the Cth cannot legislate around it by using a different power
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Theories of Constitutional Interpretation
Why is the choice of method of con interpretation important?
The judicial invalidation of legislation contradicts the express wishes of the elected representatives of the Australian people, and must therefore be justified according to some or other theory of the judicial function in a constitutional democracy
It is not enough to point to the fact that the Constitution and the Judiciary Act 1903 (Cth) clearly give the High Court the power to interpret the Constitution (s 76(i) of the Constitution read with s 30(a) of the Judiciary Act), because this power may be exceeded
To avoid this charge, the Court’s method of interpretation needs to appear to be neutral, i.e. not influenced by anything else other than purely technical legal considerations, and certainly not by the judges’ personal preferences as to who should win or lose, or what the law should be
The more it appears that the Court is simply giving effect to the democratic choice made by the
Constitution’s framers, as confirmed by subsequent generations, the more legitimate the exercise of the Court’s powers will appear to be
The debate over the correct method of constitutional interpretation must thus be understood as a debate about the most legitimate method
Ideally, the Court should adopt one method, because the use of multiple methods, each capable of producing a different result, undermines the sense that the Court is doing law and not politics
1. Literalism and Legalism
The Engineers Case is generally regarded as consummating a triumph of legalism, which is then perceived as having dominated the High Court’s approach ever since.
Definition:
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In legalism, we look specifically at the words (literalist approach), but can look to wider texts – albeit not completely unrestricted in choosing these texts. We may use the CL and statute law that preceded it as aids. The Const. itself is a self-autonomous body of law
Characterised by abstract logical reasoning focusing on the Constitution and authoritative legal materials
Suggests there are ‘right’ answers and sidelines the element of CHOICE
Guided by legislation or case law, rather than on the social, economic or political context.
‘Legalism’ does not insist that interpretative or justificatory reasoning be limited to any one source, but only that all its sources be located within a self-contained autonomous body of law
Advocators:
This is an attractive approach because it encourages CERTAINTY (i.e. there is a narrow field of what you can rely upon).
Dixon CJ (1952) in his swearing in as Chief Justice:
o “the courts sole function is to interpret a constitutional description of power or restraint upon power and say whether a given measure falls on one side of a line consequently drawn or on the other, and that it has nothing whatever to do with the merits or demerits of the measure”
o Famous extra-curial statement on judicial function in relation to federal-state conflicts “close adherence to legal reasoning is the only way to maintain the confidence of all parties...there is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism”
William Gummow: Law and the use of history
o Supports Dixon, although contends that Dixon’s characterisation as a strict and complete legalist is ill-founded given that he was not suggesting that the Court should be blind to the world around it
o Defends Dixon by arguing that the whole course of a decision on the scope of the defence power in ACP v Commonwealth indicates the opposite, as does the treatment of the international scene
Barwick CJ in his 1981 retirement speech:
o “the function of the Court is to give the words their full and fair meaning and leave the Const.
which places residue with the States to work itself out’
o “You take the words, you decide on the Cth power and you do not decide on the Cth power looking over your shoulder as to what effect your decision will have on State power. The Constitution will take care of that”
o Favoured reading the Constitution in the light of its history in order to ascertain the 1900 meaning.
o Heydon J pointed out, it is wrong to attribute Barwick CJ or indeed any other High Court judge a strict literal approach to constitutional interpretation (that is, a focus on the text of the
Constitution to the exclusion of all other considerations).
Engineer’s Case:
o Was legalism with a hint of literalism
o Is sometimes criticised as embodying a rigid literal approach BUT more supports legalism not literalism because it accepted that the Constitution has to be interpreted against the historical background and ‘in light of the circumstances in which it was made, with knowledge of the combined fabric of the common law, and the stature law which preceded it.’
Rationale behind legalism is that High Court, in order to be accepted as a neutral arbiter in ‘great conflicts’, must use objective legal reasoning methods
Problem is that these methods are not determinative of outcome in many cases, especially appellate cases, making legalism an impossible ideal
o In these circumstances, it is better view to acknowledge the reality of judicial choice than to hide behind a cloud of legalistic rhetoric
16 Rejections:
Constitutional law will be static and fail to move with the time Other commentary:
JD Heydon: Theories of Constitutional interpretation:
Despite the constant reaffirmation of literalism as the approach to Const. interpretation, all approaches to interpretation in some degree rely on a context which is wider than the words of the Const, even taken as a whole
The additional aids to literalism emphasized in Engineers case lie beyond the const text, but they all involve reference to authoritative legal materials, and therefore still fall within Dixon J’s contention of legalism (see Advocators above)
Shklar: the defining characteristic of legalism as a closed system of reasoning is inaccurate as a tendency to think the law as being ‘there’ as a discrete entity, discernibly different from morals and politics, that has its deepest roots in the legal profession’s views of its own functions, and forms the very basis of our judicial institutions and procedures
Sir Anthony Mason: The Role of a Constitutional Court in a Federation
The asserted advantage of a legalistic approach is that decisions are made from objective legal rules and principles of interpretations rather than the subjective values of judges ---> however, it is impossible to interpret any instrument divorced from values.
Strict and complete legalism will be a cloak for undisclosed and unidentified policy values
A Const. is a document framed in general terms to accommodate the changing course of events, so that courts interpreting them must take account of community values
o With the coupled effect of stare decisis, judges run the risk of following judicial precedent and fail to discuss community values that may have changes
NB**: In Mason’s time as CJ, the court handed down multiple judgements which included policy considerations and community values when interpreting the Const. (eg: Mabo, ACT v Cth)
o It is as a result of the criticism that followed on Mason’s court that Gleeson reverted to the rhetoric of legalism
Murray Gleeson: Judicial Legitimacy
Gleeson CJ criticizes the court’s departure from legalism and claims their application of values in Const.
interpretation represents and unjustified departure and an erosion of judicial legitimacy
NB**: Mason CJ lamented the Court’s return to legalism as an incomplete and inadequate approach to judicial methodology, claiming that there was a judicial obligation to state the reasons for any decision o As the Gleeson court retreated to legalism, they did so with the motivation of shunning away
any association to judicial activism. In doing so, the HC’s detest of judicial activisim that was prominent in the 1940s USSC led to their overzealous restraint.
Robert French: Judicial Activists – Mythical Monsters?
o French CJ recognises the inherent fallacy of legalism and how decisions cannot be made in the vacuum, but require choice-rich interpretation which is a crucial part of the judge’s function o French CJ also questions whether activism is not the current status quo that is disguised under
the fallacy of legalism
Stephen Gaegler: Beyond the Text: A Vision of the Structure and Function of the Constitution
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While empathizing with the legalists, Gaegler claims he does not understand what strict and complete legalism means – claiming that this statement is obscure
While speculating as to what it may mean, he suggests that it extends to the content of the constitutional principles as if logic and technique are somehow determinative
o ‘Legalism can tell us how, legalism cannot tell us why’
2. Judicial choice
Definition:
Rejects the idea that the pre-existing body of authoritative legal materials contains a ‘right answer’ (i.e.
strict legalism)
2 step process:
(1) Application of an old text to new problems may yield contradictory, inconclusive or indeterminate meanings from amongst which the judge must CHOOSE.
(2) This leads to the need to choose the better choice (most nearly objective choice) which leads to an attempt to discover the intention of the framers, or the meanings that those words had for them (i.e. look to the context of the constitution).
Advocators:
John Gray, The Nature and Sources of the Law (1909):
o a. “Judge made law is the only law because the courts put “life into the dead words of a statue”
and give meaning to its intents and purposes.”
AR Blackshield: The Law:
o If authoritative legal materials are restrictive (ie based on premise of legalism/literalism), they are also an inexhaustible source of rhetorical and interpretative potential
o The overarching idea is that you cannot disentangle bias and ideas from legal materials, and therefore cannot carry out the practice of literalism in a vacuum
Robert French: Judicial Activists – Mythical Monsters?
o French CJ recognises the inherent fallacy of legalism and how decisions cannot be made in the vacuum, but require choice-rich interpretation which is a crucial part of the judge’s function o French CJ also questions whether activism is not the current status quo that is disguised under
the fallacy of legalism
Julius Stone:
a. “The central point is that, wherever a judge is driven to make a choice between two versions of “the law”, that choice itself cannot be controlled or determined by “the law”, but must ultimately depend on the judge’s own sense of what “the law” ought to be.”
Martin Golding, Principled Decision-Making and the Supreme Court o “Judging invariably does and must involve an element of personal choice.”
Rejectors:
John Austin: Lectures on Jurisprudence:
o Judges have a striking reservation against adapting to changing rules and trends, and will usually resist any attempt which forces them to introduce new ideas
18 o Legal problems were supposed to have single right answers and the task of judges was to
discover those answers – not invent them ---> ‘The demise of legalism as a satisfactory explanation of the complexity of judicial decision-making appeared complete in Anthony Mason’s speech’ (see Legalism/literalism above)
These methods are not mutually exclusive:
Literalism/textualism can be used with originalism where the plain meaning of the constitutional text is used as a guide to the meaning that the Constitution had in 1900
Literalism can also be used in support of incremental accommodation, where ordinary meaning today is taken to be the correct meaning (e.g. ‘chosen by the people’ in ss 7 and 24)
Originalists can take account of change through connotation/denotation distinction
More than one of these methods may be used by the same judge in the same case, the same judge in different cases or by different judges in the same case
3. Originalism
Originalism has always been one of the accepted methods of interpretation, but the way this method is pursued has undergone some changes over the years
Intentional originalism
o Referring to subjective intentions of the framers of the constitution
19 o Stanley Fish in detracting from intentional originalism: “under the guise of pursuing unexpressed
legislative intents, judges will in fact pursue their own objectives and desires”
Textual originalism
o Objective intention that can be inferred from the text --> preferred method
How words would have been understood by literate and informed persons at the time of their utterance/publication
Stanley Fish in advocating for textual originalism: cites Justice Antonin Scalia: ‘Men may intend what they will, but it is only the laws they enact which bind us’
Greg Craven: a judge who is genuinely committed to a theory of original intent is unlikely to view the bare words of the Const. as ultimately controlling. The intention of the founders is the grail, where the text of the Const is not the only tool, rather just a means of communicating and are imperfect in perfectly conveying a message o Approach applied in Work Choices Case:
Callinan J in dissent [249] “it is inconceivable that the founders visualized a power as broad as the one now asserted. Throughout the debates, the preoccupation of the delegates was with the adjustment of powers between the new polity and the States”
Australian courts prefer interesting a method whereby you interpret that word from an objective position/
reasonable person. Ascertaining the meaning of the words from an objective standpoint i.e. dictionary. Looking at objective meanings of the word – the reasonable and informed
Textual objective conventionalism/originalism and approach which says you give the words the meaning that they had at the time the constitution was enacted – how they would have been understood by the reasonable informed person/legal professional.
Commentary on originalism:
JD Heydon:
Judgements concerning const. interpretation have both restrictive and liberal aspects
o The restrictive aspects include an exclusion of evidence of the substantive intention of the legislature where the search for intention was purportedly believed to have been expressed in the statute itself
We apply the principles of statutory construction at least as stringently to the Australian Constitution (O’Connor J)
The early HC never had to face the acid distinction between textualist or intention-based approaches as the meaning was clear at the time
From Dawson J in Brown v The Queen: ‘The perception of changed circumstances cannot of itself ever justify an interpretation which conflicts with the original jurisdiction, for a Const. must be a charter upon which more than temporary reliance can be placed’
o So far as that involves an inquiry into what the particular framers in fact took for granted as understood, it is a subjective inquiry, which verges on an inquiry into actual intention i.e.
intentional originalism
McHugh J in Eastman v The Queen
NB*: McHugh J contends that there is not always a necessary inconsistency between the Jumbunna principle and strict textualism in the Drawbacks case – noting that the meaning of the Const is not necessarily the same as that which it had in 1900
‘It is however too simplistic to view even faint-hearted originalism as meaning that a word or phrase in the Const only applies in the circumstances envisaged by the makers of the Const.
o The reason for the Court’s interpretation is that the relevant intention of const. provisions is that expressed in the Const. itself, not the subjective intention of the framers – the search is always for the objective intention of the makers of the Const
20
But to deny that the events following federation … can be used to see more than the Constitutional Convention participants or the 1901 audience … is to leave us slaves to the mental images and understandings of the founding fathers, a prospect which they almost certainly did not intend
o Eg: there is an incremental expansion of the terms of the Const as time goes on (radio to TV to all telecommunication services)
Use of historical materials?
Expressly rejected by the HC in both Tasmania v Commonwealth and Victoria and Municipal Council of Sydney v Commonwealth as inadmissible
Refusal to allow reference to Convention Debates was maintained until 1988 (Cole v Whitfield) o Even after being recognised, they could only be used to inform the historical vs contemporary
meaning of the word NOT displace the ordinary meaning (following textual originalism approach)
However, HCA did allow the use of other historical material and was prepared to use secondary material which relied on the debates
Tasmania v Commonwealth (1904)
Early High Court reluctant to accept extrinsic evidence of framers’ actual intention, over and above the intention as manifest in the words of the Constitution itself
o The intention of the enactment is to be gathered from the words. If the words are plain, effect must be given to the,; if they are doubtful, the intention of the legislature is to be gathered from the other provisions of the Statute aided by a consideration of surrounding
circumstances.
• PERMITS a recourse to the legislative history of the constitution, but DID NOT permit any reference to Convention Debates.
• PERMITS reference to earlier drafts of Constitution where these throw light on framers’ intent (ibid)
• Did not assist Tasmania as 1891 and 1897 drafts, which would have supported claim, had been changed
Cole v Whitfield
Convention Debates may be used to identify ‘the contemporary [i.e. historical] meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards federation”…
But ‘not for the purpose of substituting for the meaning of the words used the scope and effect – if such could be established – which the founding fathers subjectively intended the section to have’
So only OBJECTIVE not SUBJECTIVE
This approach endorses reference to historical materials as a guide to the meaning the text would have had to
‘literate and informed’ readers of the Constitution in 1900 (textual originalism) not to subjective intention of framers (intentional originalism)
This approach confirmed in New South Wales v Commonwealth (2006) 229 CLR 1: o ‘To pursue the identification of what is said to be the framers’ intention, much more often than not, is to pursue a mirage’ (at 96)
4. Textualism
Textualist approaches give primacy to words used in Constitution over other legal materials that may be used to aid interpretation
21
As we have seen, one version of textualism supports originalism, i.e. textual originalism (using text as guide to what Constitution would have meant in 1900)
Danger of this approach is that the text of the Constitution becomes a ‘dead hand’ preventing modern understandings of legal institutions such as ‘marriage’ from informing the meaning of the Constitution
SOLN: The standard way of getting round this difficulty is to draw a distinction between the ‘connotation’ and the ‘denotation’ of the words used
Connotation = core conceptual and fixed meaning of the word, what the meaning was when the constitution was enacted at the time
Denotation = all varieties of that concept, denotation changes over time to time, can change with changing social mores or what public interest demands of it
Connotation can remain stagnant but the denotation can change
R v Commonwealth Conciliation and Arbitration Commission; Ex parte Professional Engineers’ Association (1959) per Windeyer J: ‘We must not, in interpreting the Constitution, restrict the denotation of its terms to the things they denoted in 1900. The denotation of words becomes enlarged as new things falling within their connotations come into existence or become known.’
Incremental Accommodation
Above is an example: Connotation can remain the same, but the denotation can change
o Textualist intentionalism thus provides one way of updating Constitution in line with modern understandings of concepts and institutions
More radical way would be to interpret constitutional words and phrases without reference to their historical meanings and purely in line with modern meanings
o Street v Queensland Bar Association: the essential meaning of the Const must remain the same, although with the passage of time its words must be applied to situations which were not envisaged at federation
o ‘The words have a fixed connotation but their denotation must vary from time to time’ (eg connotation of marriage = union of two people vs denotation of marriage = may be two men or two women
Model for this approach is common-law adjudication, i.e. notion that the function of judges is to adapt the law to make it relevant to the present day
Question is whether the legitimate role of judges in updating the common law can be so easily used as a justification for judicial updating of the Constitution
o Early proponent of this approach was Deane J, who thought that Constitution was a ‘living tree’, the meaning of which changes as social values change
Kirby J famously took over this approach: o Words must be given their contemporary meaning, i.e. the meaning they have today (Brownlee v Queen (2001) 207 CLR 278, 320-22)
o ‘Where the Constitution is ambiguous, this Court should adopt that meaning which conforms to the principles of universal and fundamental rights rather than an interpretation which would involve a departure from such rights’ (Kartinyeri v Commonwealth (1998) 195 CLR 337, 417)
Kirby J’s views have not been endorsed by other judges Rejection of modernizing approach
22
Re Wakim; Ex Parte McNally: judiciary has no power to amend or modernise the Const.by giving effect to what the judges think is in the public interest
Function of the J is to give effect to the intention of the makers of the Const. as evinced by the terms which they expressed that intention (according with the literalist/legalist approach)
Once these concepts have been identified, express or implied, that the makers of the Const intended to apply, ONLY THEN can we give effect to the present day conception of those concepts
5. Purposive interpretation
Theory which gained momentum following the 20th century American constitutional debates which proposed the const is ‘living’
Accepts that there are fundamental voices involved in interpretation, and must be made by judges who are men and women of the current society
Aharon Barak
Const. language plays a dual role. On the one hand, it sets the limits of interpretation. The language of the Const is not clay in the hands of the interpreter to be moulded as he or she sees fit. A const. is neither a metaphor nor a non-binding recommendation. On the other hand, the language of the Const. is a source of its purpose
Argues that a Const should be interpreted having regard to both its objective and subjective purpose o Objective = interest, goals, values, aims, policies and functions that the const. text is
designed to actualize in democracy o Subjective = intention of the framers
6. The Upshot – what should actually be the case?
The High Court has never settled on a single, preferred approach to constitutional interpretation (see, in particular, Callinan J’s comments in Work Choices (2006))
The HC has expressly said that you do not need a methodology – you can work out from common sense the best approach to take.
William J Brennan: Constructing the Constitution:
There is no determinate way in which we can ascertain the framer’s intention, because the framers themselves did not conclusively agree about what the provision meant
‘For the genius of the Const. rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and needs’
Any one of originalism, textualism or incremental accommodation may be used, alone or in combination
A morally defensible (in democratic theory) combination of these various methods would go something like this:
A judge should attempt, at least in the first instance, to give effect to the original meaning of the Constitution as manifest in the constitutional text
To ascertain the original meaning, regard may be had to historical materials such as the Convention debates, earlier drafts, and other materials that help us to understand what the words of the Constitution meant at the time they were enacted
23
Where the original meaning is not clear, either because it is ambiguous in itself, or because its application to changing circumstances is uncertain, recourse to constitutional policy arguments is justified, since judges cannot abdicate responsibility to give a decision
Constitutional policy arguments necessarily take into account changing social values, technological and legal change, and the likely consequences of the competing interpretations contended for
Illustration:
o In the First Territory Senators Case (1975), the High Court was asked to decide whether statute providing for territorial representation in the Senate (Senate (Representation of Territories) Act 1973 (Cth)) was constitutionally valid
o This required it to reconcile the following two provisions and give them a determinate content:
Section 7: The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate
Section 122: The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth ... and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit
o The Convention debates were inconclusive as to what the Framers intended, and in any case could not at that stage be referred to
o The meaning of each section in and of itself is actually quite clear, whatever method of interpretation is applied – the problem is which provision trumps the other
o That required the Court to make a constitutional policy choice between federalism (s 7) and democracy (s 122)
24
External affairs power (s 51 xxix)
s 51 (xxix) provides that the Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to external affairs.
The external affairs power extends to:
1. Preservation of relations with other countries – (Sharkey; Thomas v Mowbray) - Incl relations with ‘international persons’ (eg: the UN) (Koowarta) - Efforts to combat terrorism (Thomas v Mowbray)
- Potentially has some degree of a purposive element – proportionality test (‘appropriate and adapted’) applied by Kirby J in XYZ v Commonwealth 2. Geographic externalities (Submerged Lands case; affirmed in Polyukhovich - although
qualified)
3. Treaty implementation – purposive aspect;
4. Jus cogens (Submerged Lands case) 5. Matters of international concern
Process of characterisation
1. Construe generally – Jumbunna
2. Determine character of the law by reference to rights, powers, liabilities, duties, privileges it creates in Australia (Re Dingjan) – Note this is purely legal test, i.e. not concerned with underlying motive of law / discerning its ‘true character’
3. Is there a sufficient connection between the law and HOP – this is a question of degree (Burton v Honan), discretionary judgement
4. Once sufficient connection is established, leave justice and wisdom of the law and means it adopts to P’mentary legislative choice
Relations with other countries
Although HCA did not allow Cth to dissolve the Communist Party in the Communist Party case, it upheld the validity of laws that criminalised the exciting of disaffection against the Commonwealth
At the very least, if a law can be characterised as one that touches the subject matter of
‘relations with other countries’ it is the sort of law that can come within ext. affairs power.
o NB*** - Look to sufficient connection test (p 27)
R v Sharkey (1949)
Modern interpretation of ext. affairs power begins with R v Sharkey
FACTS: s24A of Crimes Act 1914 (Cth) made it a criminal offence ‘to excite disaffection against the Govt or Constitution of any of the King’s Dominions’
HELD: to fall within ext. affairs power as part of general power to preserve friendly relations with other Dominions, but scope of external affairs power expressly extended to other countries
o Latham CJ: the relations of the Cth with countries outside Australia are matters that fall within the ext. affairs power
o The prevention and punishment of excitement of disaffection within the Cth against the Govt or Constitution of other Dominions are reasonably thought by P’ment to constitute an element of preserving friendly relations with ‘All Countries outside Australia’
25 o The term ‘ext. affairs’ and not just ‘foreign affairs’ was chosen to make it clear that
the power was meant to extend to relations within the UK and other parts of the British Empire ---> Relationships with Britain were considered ext. affairs and not foreign affairs
Thomas v Mowbray (2007)
Extended power – can be used to make laws with respect to matters affecting Australia’s relations with other countries
Three judges upheld Cth control order regime that had been enacted to prevent acts of
terrorism as a valid exercise of ext. affairs power since efforts to combat terrorism sufficiently connected to Australia’s relations with other countries
Kirby J recognised the “attribute of s51(xxix) of the Constitution concerning matters that affect Australia’s relations with other counties” and did “not doubt that ‘terrorism’ is a matter of concern to the community of relations” – although overall he dissented saying that the specific provision would not affect Australia’s int. relations
However, there was recognition of the fact that global movement of money, preventative national security measures and the mobility of such groups may justify the recognition of the provision under the ext. affairs power
Matters external to Australia
Barwick CJ in Sea and Submerged Lands case: ext. affairs power extends to anything which, in nature, is external to Australia
o Mason J clarifying: pertains to matters which are geographically situated outside of Australia
View was reinforced in Polyukhovich
Sea and Submerged Lands Case
ISSUE: whether the ext. affairs power entitled the Cth to assert its sovereignty over Australia’s territorial sea
HELD: majority held that it did and also that the Cth held a right to assertion over Australia’s continental shelf
o Stephen J: it is the international intercourse between nation states which is the substance of a nation’s external affairs. Treaties and conventions to which a nation may become a party form, no doubt, an important part of those affairs
o The concept of the continental shelf arose as a product of international law, and therefore a law with regard to the domestic continental shelf is one with relation to ext. affairs
Other judges find it to be relevant [the continental shelf] because it is a geographic externality
Polyukhovich v Commonwealth (War Crimes Act case)
Majority (Mason CJ, Deane, Dawson and McHugh JJ) reaffirmed the mere externality approach o Deane J – held that law validly fell under ext. affairs power as ‘any matter, thing or
person occurring or situated outside of Australia is a law w.r.t the external affairs’
o Since the Act concerns things that were done outside of Australia, the law must be regarding the ext. affairs power
26 o The mere externality, with no “Australian connection” is sufficient to enliven the ext.
affairs power
Brennan J rejected this approach!!!!: His dissent hints at want of connection -
o Powers conferred by the Const. are not to be expanded beyond their true scope merely to supply what is thought, from the public viewpoint, to be desirable or convenient. Limits on power are the measure of private immunity from legislative action by the State
o There must be some nexus, not necessarily substantial, between Australia and the ext. affair which the law purports to affect before the law is supported by the ext. affairs power.
Toohey J, while agreeing with Brennan J that some connexion was required, found that the view that a mere externality was enough was reaffirmed in the Industrial Relations Act Case.
XYZ v Commonwealth – AFFIRMED POLYUKHOVICH MERE EXTERNALITY APPROACH
FACTS: XYZ faced prosecution for sexual offences allegedly committed in Thailand --->
challenged this on basis that ‘externality principle’ did not stand
HELD: Gummow, Hayne, Gleeson and Crennan JJ rejected the challenge, upheld validity of the legislation on the basis of the mere externality principle
o Callinan and Heydon JJ rejected this and held that of externality, the law was invalid o However, you could argue there was a nexus as the subjects were Australian citizens
Pape v Commissioner for Taxation
Argument that legislation in question came under the ext. affairs power because the GFC originated from outside of Australia met with v little judicial sympathy
o Rejected on the basis that it was not a law with respect to any matter or thing external to Australia
(Heydon J with Hayne and Kiefel JJ agreeing) ‘the externality principle does not permit the enactment of a law relating to ‘matters and things within Australia’ merely because the ‘perceived need to regulate … arose outside Australia’
o Heydon J: the mere externality principle does not mean that a law relating to “matters and things within Australia” could be enacted simply because the “perceived need” for such a law arose from a cause outside of Australia. A law relating to a consequence [in Aus]
is not necessarily a law relating to its cause
o Hayne and Kiefel JJ: irrelevant that the cause of the GFC may be external – stimulus package was directed at Aus economy – therefore internal matter. It created rights and obligations only in Australia
Although not a majority decision, these views likely to be influential in event that similar question arises again i.e. attempt to use s 51(xxix) to support legislation combatting externally caused social/economic problem
27 Treaty implementation
Focus is on the extent to which obligations imposed on Australia as a party to int. treaties can be carried out under s51(xxix) by legislation implementing those treaty provisions within Australia Treaty implementation is a purpose power therefore proportionality is relevant
Process of characterisation
1. The treaty must be a bona fide agreement between nations. It will be invalid if it is merely a
‘device to attract domestic legislative power’: Tasmanian Dam Case; R v Burgess; Ex parte Henry; Koowarta.
2. The treaty must have sufficient specificity as to the obligations it imposes (Pape) - Building on Industrial Relations where it was said that regime must have
‘sufficient specificity to direct the general course to be taken’
3. Further to step 2, there must be a ‘real and identifiable’ obligation: Tasmanian Dam Case;
Industrial Relations Act Case
- There must be ‘precise obligations’ rather than mere aspirations: Industrial Relations Act Case
4. The means adopted by the law must be ‘reasonably capable of being considered appropriate and adapted to implementing the treaty’: Industrial Relations Act case
Power to implement statutory regulations for ‘the purpose of carrying out and giving effect’ to the treaty concerned – first confirmed in R v Burgess; Ex Parte Henry (1936)
ISSUE: Law was trying to implement an int. treaty, and the argument was that the treaty does not enliven the ext. affairs power because it is a matter of domestic concern
Outcome:
o Established that the implementation within Australia of international treaties was valid subject to limitations ---> i.e. the law cannot contravene constitutional guarantees when implementing a treaty AND has to be a bona fide treaty – not just a device for procuring the Commonwealth’s additional jurisdiction
o Dixon J: subject of the law must be indisputably international in character; not merely a matter of international concern
o Evatt and McTiernan JJ: the laws should be in conformity with the convention which they profess to be executing ----> principle affirmed in later cases
The Expanding Power (Koowarta v Bjelke-Petersen) 1982
FACTS: HCA considered the Racial Discrimination Act and whether it was validly enacted under the ext. affairs power. It was argued that it may be validly enacted under the ext. affairs per because the purpose of the RDA was to meet Australia’s int. obligations under a treaty
Outcome:
o Highly contentious case – main guidance provided for present day purposes was Stephen J’s proposal of the lowest common denominator approach (note, however, only Stephen J relied on this approach):
The implementation of a treaty is a valid use of power under s 51(xxix) at least when the subject matter is of ‘international concern’.
