Characterisation
- In determining whether the law is valid, you ask whether it can be characterised as a law within the scope of that power. This is called characterisation.
- Most heads of legislative power are “subject matter” powers and we are looking at the scope of the subject matter of, for example, “trade and commerce”.
How do we interpret?
- The constitution does not contain an express provision mandating how it is to be interpreted.
- Any theory of constitutional interpretation “must be a matter of conviction based on some theory external to the constitution itself” (McHugh J in McGinty v Western Australia (1996) 186 CLR 140)
Literalism, legalism and judicial choice
- Looking at the words for their literal meaning
- ‘The one clear line of judicial inquiry as to the meaning of the Constitution must be to read it naturally in the light of the circumstances in which it was made, with knowledge of the combined fabric of the common law, and the statute law which preceded it’
(Engineers case)
- This approach is regarded as a triumph of legalism Swearing in of Sir Owen Dixon as Chief Justice 1952
- The court’s 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
- Close adherence to legal reasoning is the only way to maintain the confidence of all parties in Federal conflicts
- There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism
Retirement of Sir Garfield Barwick as Chief Justice 1981
- The court has room to re-express the law in terms that are more comfortable to the needs of the day
- When the court has to decide what the Constitution means, it has to assign a meaning to language
- The problem for the Court always is to decide on the extent of Commonwealth power - The function of the court is to give to the words their full and fair meaning
Theories of constitutional interpretation
- Dichotomy between ‘literalist’ and ‘strictly textual’ approaches
- Barwick CJ favoured reading the constitution in the light of its history in order to ascertain the 1900 meaning ‘having regard to the historical setting in which it was created’
- Engineers case accepted that the constitution must be interpreted against the historical background and ‘in the light of the circumstances in which it was made’
- Legalism does not insist that interpretive 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. In other words, a reliance on technical legal solutions rather than issues of policy.
- Contemporary theories of constitutional interpretation reject the simplistic idea that the pre-existing body of authoritative legal materials contains a uniquely predetermined ‘right answer’ to any legal problem.
- The advantage of a legalistic approach is that decisions proceed from the application of objective legal rules and principles rather than from the subjective values of the justices who make the decisions. It is impossible to interpret any instrument divorced from values.
Textual originalism and evolution
In textual originalism, the focus is on the constitutional text, with no attempt to discover the subjective intentions of its authors, but simply with an attempt to establish the meaning that its language would have according to the general understandings of the time
- The search is for the intention expressed in the statute itself, not for the intention expressed elsewhere
- We do not inquire what the legislature meant, only what the legislation means
- In 1912 Griffith CJ said that the constitution does not change ‘from time to time to meet the supposed changing breezes of popular opinion’ (R v Commonwealth Court of Conciliation and Arbitration and Merchant Services Guild)
Intentionalism
- Searching for the intention of the authors who wrote the constitution in order to best understand what it means
- Problems with actually ascertaining what their intentions were Purposive interpretation
There are three main reasons for the opaque and vague language of the Constitution:
1. A constitution expresses national agreement. In order to reach an agreement, nations must generally confine themselves to opaque and open-ended terms, reflecting their ability to reach consensus
2. Second, a constitutional text seeks to establish the nation’s fundamental values, covenants and social viewpoints. We tend to express those concepts in value-laden terms conveying a message that is rarely unequivocal
3. It takes a long-term view, assuming that viewpoints, positions and social behaviour will change. It must adopt flexible language.
Jumbana principle
In Jumbunna Coal Mine NL v Victorian Coal Miners’ Association, O’Connor J said: ‘it must always be remembered that we are interpreting a Constitution broad and general in its terms, intended to apply to the varying conditions which the development of our community must involve.’
- The constitution was purposefully written in general terms to allow for our interpretation over time
Race power
Section XXVI of the Constitution originally provided:
‘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 … the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.
The words “other than the aboriginal race in any State,” were struck out by amendment approved in the 1967 referendum.’
The race power was justified in Quick and Garran (622-623):
‘It enables the Parliament to deal with the people of any alien race after they have entered the Commonwealth; to localize them within defined areas, to restrict their migration, to confine them to certain occupations, or to give them special protection and secure their return after a certain period to the country whence they came.’
1. What does it mean for a law to be in respect to “the people’?
Commonwealth v Tasmania (1983)
- Commonwealth sought to prevent Tasmania from constructing a dam in national park lands in north western Tasmania
- Sections 8 and 11 empowered the Governor-General to declare that a site of particular significance to the “Aboriginal race” could not be disturbed by excavation, building, etc.
- These sections did not quite relate to people; they related to construction and demolition of certain areas of the land.
- Brennan held at 244-245: ‘A law which, on its face, does not discriminate in favour of the people of a race, may nevertheless be valid if it discriminates in favour of those people by its operation upon the subject-matter to which it relates … ‘
2. What does it mean for the people to be of a particular ‘race’?
Brennan J’s judgment in the Tasmanian Dam Case at 244 as authority:
‘As the people of a group identify themselves and are identify by others as a race by reference to their common history, religion, spiritual beliefs or culture as well as by reference to their biological origins and physical similarities, an indication is given of the scope and purpose of the power granted by par (xxvi).’
Political Communication
“As has been emphasised by this Court repeatedly…the implied freedom of political communication is not a personal right of free speech. It is a restriction on legislative power which arises as a necessary implication from ss 7, 24, 64 and 128 and related sections of the Constitution and, as such, extends only so far as is necessary to preserve and protect the system of representative and responsible government mandated by the Constitution.
Accordingly, although the effect of a law on an individual's or a group's ability to participate in political communication is relevant to the assessment of the law's effect on the implied freedom, the question of whether the law imposes an unjustified burden on the implied freedom of
political communication is a question of the law's effect on political communication as a whole.”
(Banerji v Comcare [2019] HCA 23, 7 August 2019)
- Freedom of political communication is implied from the text of the Constitution, particularly ss7 and 24, which provide respectively that the Senate and House of Representatives shall be ‘directly chosen by the people
- The implied freedom is an indispensable incident of the system of government prescribed by the constitution
- It was not until the Mason Court in the 1990s that the HC handed down a series of cases outlining an implied freedom of political communication. The implied freedom arises as a consequence of the system of “representative and responsible government” established by sections 7, 24 and 128. That system necessarily requires free communication between the electorate to facilitate “informed choice”.
Thus, Australians enjoy an implied freedom of communication which is only:
1. Limited to communications concerning “government and political matters”
2. A negative freedom from government interference
3. Limited to that which is necessary to facilitate the system of representative and responsible government.
Miller v TCN Channel Nine Pty Ltd
- Constitution contains implied guarantees of freedom of speech - Such freedoms are fundamental to a democratic society
- They are necessary for the proper operation of the system of representative government at the federal level
In relation to the drawing of implications generally, Dixon J in Australian National Airways Pty Ltd v Commonwealth: ‘we should avoid pedantic and narrow constructions in dealing with an instrument of government and I do not see why we should be fearful about making implications.’
Nationwide News and Australian Capital Television established that the constitution embodies an implied freedom of political communication. In Nationwide News, the publisher of The Australian had been prosecuted for essentially bringing a person of the Industrial Relations Commission into disrepute. The court unanimously held the legislation was invalid because it infringed on an implied freedom of political discussion.
In Nationwide News v Wills (1992) 177 CLR 1, Deane & Toohey JJ identified three main “doctrines” underlying the constitution:
1. The doctrine prescribing a Federal system of government;
2. The doctrine of the separation of powers;
3. The doctrine of representative government.
- Generally, when we speak of “freedoms” and “rights” in Australia, such as a principle of
“free speech”, we are often speaking more of inherited liberal values rather than concrete constitutional principles.
- We are familiar with an array of laws which restrict when, how and what we can say a lot of the time (defamation, copyright, national security, vilification etc)
Whenever we invoke a “right” or “freedom” we are removing an option from the range of choices available to a government to achieve a policy objective
Scope of rights
- The source of rights is determinative of their scope
- Express rights are ends in themselves, whereas implied rights exist only to the extent necessary to achieve some other constitutional purpose
“The Constitution deals, almost without exception, with the structure and relationship of government rather than individual rights … The framers preferred to place their faith in the democratic process for the protection of individual rights.” Kruger v The Commonwealth (1997) 190 CLR 1 Dawson J, at 61 with whom McHugh J agreed
- The fact that the constitution does not preclude the possibility that those structural features might require the protection of certain or freedoms for individuals. It does, however, mean that the protection if those rights is simply a necessary incident of the proper functioning of the governmental structure established by the constitution.
The Constitution contains few express guarantees of fundamental rights or freedoms from legislative power:
s.92 – provides for “freedom of trade, commerce and intercourse among the States”
s.116 – “The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the
Commonwealth.”
