Constitutional interpretation and the characterisation of federal laws
Influences on constitutional interpretation
• Section 71 of the Constitution
• The High Court of Australia
• Judicial discretion in constitutional cases
The Role of the High Court in Constitutional Interpretation
Section 71
• The High Court of Australia is established by s71 of the Constitution
• ‘The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia… The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes’.
The functions of the High Court
• The High Court is the ultimate appellate court in Australia
• It interprets the statutes of the Commonwealth, States and Territories with authority
• It states and develops the common law of Australia
• The High Court ‘makes’ constitutional law
Quotes:
• Guardian of the Constitution – Alfred Deakin: “The Constitution is to be the supreme law, but it is the High Court which is to determine how far and between what boundaries it is supreme. The federation is constituted by distribution of powers, and it is this court which decides the orbit and boundary of every power.”
• Lange v ABC: The Constitution….placed upon the federal judicature the responsibility of deciding the limits of the respective powers of State and Commonwealth governments.
Judicial Discretion
‘Legalism’ v Policy:
• Approach of ‘strict and complete legalism’ in constitutional cases
• The Constitution placed the judicature in a passive role of merely declaring and applying the law:
• Dixon CJ in swearing-in speech: “close adherence to legal reasoning is the only way to maintain confidence of all parties in federal conflicts. It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no safe guide to judicial decisions in great conflicts than a strict and complete legalism.”
• Judges apply LEGAL, not POLITICAL, methods of resolving disputes.
• South Australia v Commonwealth (the First Uniform Tax case) (1942) 65 CLR 373:
“…controversy before the court is a legal controversy, not a political controversy. It is not for this or any other court to prescribe policy or to seek to give effect to any views or opinions upon policy”.
• BUT in O’Toole v Charles David Pty Ltd (1990) 172 CLR 232, Brennan J at 267“Nowadays nobody accepts that judges simply declare the law; everybody knows that, within their area of competence and subject to the legislature, judges make law”
• The authoritative exposition of the meaning of the Constitution necessarily involves policy considerations, because ‘the Constitution is a political instrument’: Melbourne Corporation v Commonwealth (1947) 74 CLR 31 at 82 per Dixon J.
Judicial Restraint v Activism:
• Some restraint is self imposed in that a judge is grounded by his own perception of himself as a judge
• The High Court is not limited by precedent but it has in the past restrained itself on that basis
• Lambert v Weichelt: Dixon CJ: “It is not the practice of the court to investigate and decide constitutional questions unless there exists a state of facts which makes it necessary”.
• Some argue that judges must take active role in developing law.
• Kirby J: judges have “a special power with language…adapting where necessary legal principles which appeared to stand in the way”.
Principles of Constitutional Interpretation
Literalism
• Its ‘natural’ and ‘ordinary’ meaning
• Rejected implied doctrines eg. State reserved powers, intergovernmental powers
• Amalgamated Society of Engineers v The Adelaide Steamship Company Ltd & Ors (1920) 28 CLR 129: ‘ordinary principles of construction are applied so as to discover in the actual terms of the instrument their expressed or necessarily implied meaning’
• Territorial Senators Case (1975) 134 CLR 201: Cth passed legislation to create Senate seats.
‘Implications’
• Not restricted to its express language, but extends also to implications of meaning
• Defined: a suggestion that the text or structure of the Constitution represents some truth or the existence of some fact that is not expressly stated in its language.
• West v Commissioner of Taxation (NSW) (1937) 56 CLR 657, Dixon J at 681-682“Since the Engineers’ Case a notion seems to have gained currency that in interpreting the Constitution no implications can be made. Such a method of construction would defeat the intention of any instrument, but of all instruments a written constitution seems the last to which it could be applied. I do not think that the judgment of the majority of the court in the Engineers’ Case meant to propound such a doctrine”
Examples of constitutional implications
• The implied freedom to discuss political and governmental affairs: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
• The implied autonomy and integrity of the States: Melbourne Corporation v The Commonwealth (1947) 74 CLR 31
• Implications arising from the separation of judicial power - only a court can imprison you, and the only upon a finding of criminal guilt: Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 Doubt has been cast upon this by Thomas v Mobray.
General Propositions
• Implications can only be made on grounds of necessity, but it is an elastic concept anyway. Engineers’ case.
• No constitutional implication ‘can be drawn from the Constitution which is not based on the actual terms of the Constitution, or on its structure’. McGinty v Commonwealth (1996) 187 CLR 416
• Implications cannot be drawn from extrinsic materials or circumstances: Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 181 per Dawson J.
• Implications cannot be drawn ‘from the nature of the society which operates the Constitution’: cf McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633 at 670 per Murphy J.
• Extrinsic materials and concepts can illuminate the meaning of the language of the Constitution but they cannot replace it: McGinty v Commonwealth (1996) 186 CLR 140 at 169 per Brennan CJ.
The historical context and current standards:
Originalist or “Ambulatory” approaches:
• Looked at connotation (original/essential/fixed meanings) (McGinty v WA) and denotation (modern meanings) (Street v QLD Bar Association) AND purpose of provision.
• “We must not in interpreting the Constitution, restrict the denotation of its terms to the things they denoted in 1900” (Ex parte Professional Engineers’ Association).
• Example: radio, television fell within s51 (v) under C powers in respect to “postal, telegraphic, telephonic and other like services” (R v Brislan; Ex parte Williams; Jones v Commonwealth).
• Historical materials may be used for context of interpreting language
• Cole v Whitfield (1988) 165 CLR 360“Reference to history may be made, 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, but for the purpose of identifying the contemporary meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards federation from which the compact of the Constitution finally emerged”
Common law context:
• In the Engineers case, Knox CJ, Isaacs, Rich and Starke JJ said that the Constitution should be read ‘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’: at 55.
• Relationship between CL recently considered in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 562-566.
• Cheatle v The Queen (1993) 177 CLR 541 at 552
Constitutional powers
Power of Parliament
• High Court has traditionally deferred to Parliament and interpreted legislative power generously.
• The words ‘peace, order and good government’ which describe Parliament’s law-making power under ss 51 and 52 of the Constitution and which describe the law-making powers of the States are not words of limitation, but words which describe a power to make (and unmake) laws which is ample and plenary: Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1; Kartinyeri v The Commonwealth (1998) 195 CLR 337.
• O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565
• Reasoning: Constitution intended to sustain an evolving nation and give power for Commonwealth to enact laws to meet changing and unforeseen circumstances.
• Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309:
“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.For that reason, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, in my opinion, always lead 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.”
Examples:
• Australian National Airways v Commonwealth (1945) 71 CLR 29: power to regulate “trade and commerce” under s 51(i) held to authorise C to set up gov trading enterprise.“…fact that it is a Constitution we are interpreting, an instrument of government meant to endure and conferring powers expressed in general propositions wide enough to be capable of flexible application to changing circumstances. It confuses the unexpressed assumptions upon which the framers of the instrument supposedly proceeded with the expressed meaning of the power…It is only by importing a limitation into the descriptive words of the power that such a law can be excluded.”
• R v Coldham; Ex parte Australian Social Welfare Union (CYSS Case) (1983) 153 CLR 297: HC looked at meaning of “industrial disputes” in s 51 (xxxv). Rejected earlier decisions that “industrial” only referred to blue collar workers, labour. Held: use popular/contemporary meaning of any dispute between employers and employees about employment or work conditions. Also in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Professional Engineers’ Association (1959) 107 CLR 208
Constitutional guarantees
• Adopts a similar ‘broad’ approach in relation to some constitutional guarantees.
• Bank of NSW v The Commonwealth (1948) 76 CLR 1, Dixon J at 349“consistency with the principles upon which constitutional provisions are interpreted and applied demands that the paragraph should be given as full and flexible an operation as will cover the objects it was designed to effect.”
Harmonious Interpretation:
• Provisions may clash/overlap. Eg. corporations power (s 51(xx)) can be used to regulate purely intrastate trading activities of foreign, but trade and comer power (s 51(i)) cannot: Strickland v Rocla Concrete Pipes; NSW v Commonwealth (Sea and Submerged Lands case; Pidoto v Vic.
• NOT mutually exclusive ie. One provision cannot override an express limitation of another provision. Bourke v State Bank of NSW.
Comparative Constitutional Jurisprudence:
• British precedents (eg. Engineers case) and American precedents (concept of judicial review and separation of powers).
• International law can provide guidance (Kirby J in Newcrest Mining (WA) v The Commonwealth) BUT this was flatly rejected by Callinan J in WA v Ward.
Characterisation
HC to solve Federal constitutional problems:
• Identify the power or powers which the Commonwealth might invoke to support the Federal law.
• The power(s) must be interpreted, and their scope ascertained.
• Characterise the law - it is a law “with respect to” the subject matter of the identified power(s)
• Consider any express or implied constitutional limitations which might render the Commonwealth law invalid.
‘Sufficiently Connected’ – determine if law “with respect to”…
• If the subject matter of the law is sufficiently connected to the subject matter of the power, then the Court will not be concerned with the policy of the law.
• Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1. per Kitto J“The argument for invalidity not unnaturally began with the proposition that the question to be decided is a question of substance and not of mere form, but the danger quickly became evident that the proposition may be misunderstood as inviting a speculative inquiry as to which of the topics touched by the legislation seems most likely to have been the main preoccupation of those who enacted it. Such an inquiry has nothing to do with the question of constitutional validity under s 51 of the Constitution. Under that section the question is always one of subject matter, to be determined by reference solely to the operation which the enactment has if it be valid, that is to say by reference to the nature of the rights, duties, powers and privileges which it changes, regulates or abolishes; it is a question as to the true nature and character of the legislation: is it in its real substance a law upon, “with respect to”, one or more of the enumerated subjects, or is there no more in it in relation to any of those subjects than an interference so incidental as not in truth to affect its character?”
“Substance” vs “form” of law:
· Substance – its practical effect
· Form – its formal, legal operation
· Courts are NOT concerned with “substance” ie. the motive, purpose, policy behind the act: R v Barger; Osborne v Commonwealth.
· R v Barger: “its validity depends on whether the legislature is or is not authorized to enact the particular provisions in question, entirely without regard to their ultimate indirect consequences”.
· Osborne v Commonwealth: Issacs J stressed irrelevance of policy of law.
Dual and multiple characterisation
• Legislation might also be characterised as dealing with a topic or topics outside power.
• This fact is irrelevant: Murphyores Pty Ltd v The Commonwealth (1976) 136 CLR 1, Mason J at 22“It is one thing to say that the trade and commerce power does not enable the Commonwealth to regulate and control directly matters outside the subject matter of power, such as the environmental aspects of mining in Queensland. It is quite another thing to say that the Commonwealth cannot in the exercise of that power make laws which have a consequential and indirect effect on matters standing outside the power … It is no objection to the validity of a law otherwise within power that it touches or affects a topic on which the Commonwealth has no power to legislate”