Hostname: page-component-745bb68f8f-d8cs5 Total loading time: 0 Render date: 2025-01-31T02:45:38.102Z Has data issue: false hasContentIssue false
  • English
  • Français

The Clamour of Silent Constitutional Principles

Published online by Cambridge University Press:  24 January 2025

Stephen Donaghue
Get access Rights & Permissions [Opens in a new window]

Extract

“When I use a word”, Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean - neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master - that’s all.”

Lewis Carroll, Through the Looking-Glass

The last decade of the nineteenth century saw a number of Conventions held for the purpose of creating the rules under which the Australian colonies would federate in “one indissoluble federal Commonwealth”. The endeavour was designed to be an anchor to the past, creating rules that bind until a super-majority of the living change them. These rules were incorporated into a written document, which declares itself to be the paramount law within the Commonwealth of Australia.

Type
Research Article
Information
Federal Law Review , Volume 24 , Issue 1 , March 1996 , pp. 133 - 172
Copyright
Copyright © 1996 The Australian National University

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

I would like to thank Professor Cheryl Saunders and Carolyn Evans for their valuable comments upon earlier drafts of this article.

References

1 Gardner, M (ed), The Annotated Alice (1970) at 269Google Scholar.

2 Commonwealth Constitution, Preamble.

3 Easterbrook, F, “Abstraction and Authority” (1992) 59 U of Chicago LR 349 at 363CrossRefGoogle Scholar.

4 Commonwealth Constitution, Covering clause 5. Of course, a simple assertion that something is paramount law is not sufficient to make this true. See Dworkin, R, “The Forum of Principle” (1981) 56 NYULR 469 at 473Google Scholar; Lindell, G, “Why is Australia's Constitution Binding? – The Reasons in 1900 and Now, and the Effect of Independence” (1986) 16 FL Rev 29 at 30Google Scholar; Brest, P, “The Misconceived Quest for the Original Understanding” (1980) 60 Boston U LR 204 at 225Google Scholar.

5 Victoria v Commonwealth (1971) 122 CLR 353 at 401-402 per Windeyer J.

6 See Williams, G, “Language and the Law” (1946) LQR 384 at 384Google Scholar.

7 As seems to be suggested by the traditional literalist approach to interpretation, both of statutes and of constitutions.

8 Holmes, O W, “The Theory of Legal Interpretation” (1899) 12 Harv LR 417 at 419CrossRefGoogle Scholar.

9 Dickerson, R, The Interpretation and Application of Statutes (1975) at 34- 35Google Scholar.

10 See Stokes, M, “Constitutional Commitments not Original Intentions: Interpretation in the Freedom of Speech Cases” (1994) 16 Syd LR 250 at 252Google Scholar. In Australia, the natural choice for such an interpreter is the High Court.

11 Ibid at 253; Marbury v Madison 5 US 137 (1803).

12 Ely, J H, Democracy and Distrust (1980) at 4 and 8-9CrossRefGoogle Scholar; cf Toohey, J, “A Government of Laws, and Not of Men?” (1993) 4 PLR 158 at 171-173Google Scholar; Bickel, A, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962) at 16- 17Google Scholar.

13 Australian Communist Party v Commonwealth (1950) 83 CLR 1 at 262-263; M Stokes, above n 10 at 252; Mason, A, “The Role of a Constitutional Court in a Federation” (1986) 16 F L Rev 1 at 6CrossRefGoogle Scholar; Galligan, B, “Realistic 'Realism' and the High Court's Political Role” (1989) 18 F L Rev 40CrossRefGoogle Scholar; Goldsworthy, J, “Reply to Galligan” (1989) 18 FL Rev 50Google Scholar.

14 (1992) 177 CLR 106 (ACTV).

15 (1992) 177 CLR 1 (Nationwide).

16 The decision in Stephens v Western Australia (1994) 182 CLR 211 has resolved any doubts about whether the guarantees bind the States.

17 Rehnquist, W, “The Notion of a Living Constitution” (1976) 54 Tex LR 693 at 696Google Scholar and 698;M Stokes, above n 10 at 252-253; F Easterbrook, above n 3 at 374-375 and 377-378. Consider also the logic in the seminal case of Marbury v Madison 5 US 137 (1803).

18 See, eg, Lee, HP, “The Australian High Court and Implied Fundamental Guarantees” (1993) Public Law 606 at 614-616 and 623-625Google Scholar.

19 Coper, M, “The High Court and Free Speech: Visions of Democracy or Delusions of Grandeur?” (1994) 16 Syd LR 185 at 192Google Scholar.

20 Amalgamated Society of Engineers v Adelaide Steamship Co (1920) 28 CLR 129 (Engineers).

21 West v Commissioner of Taxation (NSW) (1937) 56 CLR 657 at 681.

22 (1992) 177 CLR 106 at 134. The fairly limited implication drawn from federalism by the Court in Melbourne Corporation v Commonwealth (1947) 74 CLR 31 and Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 probably falls within this category, given that federalism is clearly a theme that permeates the Constitution. Indeed, arguably federalism could have supported substantially stronger implications.

23 ACTV (1992) 177 CLR 106 at 134; Nationwide News (1992) 177 CLR 1; Theophanous v Herald &Weekly Times (1994) 182 CLR 104 (Theophanous); Stephens v Western Australia (1994) 182 CLR 211. See McDonald, L, “The Denizens of Democracy: The High Court and the 'Free Speech' Cases” (1994) 5 PLR 160Google Scholar; Cass, D, “Through the Looking Glass: The High Court and the Right to Speech” (1993) 4 PLR 229Google Scholar.

24 Melbourne Corporation v Commonwealth (1947) 74 CLR 31; Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192; Re Australian Education Union (1995) 128 ALR 609. A different type of federal implication was discussed in Western Australia v Commonwealth (1975) 134 CLR 202; Queensland v Commonwealth (1977) 139 CLR 585.

25 J Goldsworthy, “Implications in Language, Law and the Constitution” in Lindell, G (ed),Future Directions in Australian Constitutional Law (1994) 150Google Scholar.

26 Ibid at 150 (emphasis added).

27 For a discussion of another possible explanation for the High Court's apparent adherence to literalism, see B Galligan, The Politics of the High Court (1987).

28 J Goldsworthy, above n 25 at 151.

29 Semantics is the study of the relationship between linguistic units, such as morphemes,phrases and sentences, to the world; pragmatics is the study of the relation of linguistic units to their users. See S Davis (ed), Pragmatics (1991) 1 at 3.

30 Bassham, G, Original Intent and the Constitution: A Philosophical Study (1992) at 5Google Scholar. Bassham defines speaker meaning as “that meaning which the person or persons, who made use of the words, intended to convey to others, whether he used them correctly, skilfully, logically or not.”

31 J Goldsworthy, above n 25 at 151-152.

32 For a related analysis of the United States of America Constitution, see G Bassham, above n 30 at 27.

33 Two or more words having the same pronunciation or spelling; eg, party.

34 One word having two or more senses; eg, duty, state.

35 One word having an extension that varies from context to context; eg, they, he, it.

36 J Goldsworthy, above n 25 at 151.

37 Ibid at 152. It does not include evidence of speaker's meaning that is not available to the hearer, such as personal diary entries.

38 See, for example, R Carston, “Implicature, Explicature, and Truth-Theoretic Semantics” in S Davis (ed), Pragmatics (1991) 32 at 33; F Recanati, “The Pragmatics of What is Said” in S Davis (ed), Pragmatics (1991) 97; R Posner, “Semantics and Pragmatics of Sentence Connectives in Natural Language” in Searle, J, Kiefer, F and Bierwisch, M (eds), Speech Act Theory and Pragmatics (1980) 182 at 186- 188Google Scholar.

39 Grice's works are compiled in a book he edited, titled Grice, P (ed), Studies in the Way of Words (1989)Google Scholar. The original work in which he sets out his maxims on conversation, to which Goldsworthy refers, is titled “Logic and Conversation”.

40 S Davis, above n 29 at 11.

41 J Goldsworthy, above n 25 at 152.

42 Ibid at 156.

43 Ibid at 154.

44 Ibid at 164.

45 Ibid at 156.

46 Ibid at 154 (emphasis in original).

47 Ibid at 159. See also J Searle, Intentionality: An Essay in the Philosophy of Mind (1983) at 145- 147.

48 Goldsworthy attempts later in his article to bring the phenomenon of implicit assumptions within Grice's theory of communication. However, it is clear that this is not a necessary part of his analysis: J Goldsworthy, above n 25 at 161.

49 Ibid at 159-160. This gets implicit support from a passage in the judgment of McHugh J in Theophanous (1994) 182 CLR 104 at 196. He states that: “The true meaning of a legal text almost always depends on a background of concepts, principles, practices, facts, rights and duties which the authors of the text took for granted or understood, without conscious advertence, by reason of their common language or culture.”

50 J Goldsworthy, above n 25 at 159-160 (emphasis added).

51 Official Record of the Debates of the Australasian Federal Convention (Melbourne, 1898) Vol IV at 275.

52 J Goldsworthy, above n 25 at 160.

53 Ibid at 167 (emphasis added).

54 Ibid at 165. See also Bennion, F, Statutory Interpretation: A Code (2nd ed 1992) at 407Google Scholar.

55 F Schauer, “An Essay on Constitutional Language” in F Schauer, Law and Language (1993) 241.

56 G Craven, “The Crisis of Constitutional Literalism in Australia” in Lee, HP and Winterton, G (eds), Australian Constitutional Perspectives (1992) 1 at 3Google Scholar and 20; Coper, M, “The High Court and the World of Policy” (1984) 14 FL Rev 294 at 298Google Scholar. The concept of intention provides a formal structure for all interpretive claims, by proposing a way of seeing what is interpreted as the product of a decision to pursue one set of purposes, even where there is no historical author whose intention could be pursued. See Dworkin, R, Law's Empire (1986) at 58- 59Google Scholar.

57 F Schauer, above n 55 at 255.

58 Hurd, H, “Sovereignty in Silence” (1990) 99 Yale LJ 945 at 950-951CrossRefGoogle Scholar.

59 Ibid at 968.

60 Ibid at 968-988.

61 Ibid at 964-965.

62 For example, Martin, R, The Meaning of Language (1987) at 92- 93CrossRefGoogle Scholar.

63 Grice, P, “Meaning” in Rosenberg, J and Travis, C (eds), Readings in the Philosophy of Language (1971) 436 at 442Google Scholar.

64 See Clark, H and Carlson, T, “Speech Acts and Hearers' Beliefs” in Davis, S (ed), Pragmatics (1991) 177Google Scholar.

65 H Hurd, above n 58 at 965 note 52. For a similar analysis, see R Dickerson, above n 9 at 36.

66 H Hurd, above n 58 at 966. See also D Lyons, “Constitutional Interpretations and Original Meaning” in Schauer, F (ed), Law and Language (1993) 213 at 217Google Scholar; MacCullum, G, “Legislative Intent” (1966) 75 Yale LJ 754 at 755Google Scholar and 761.

67 Dawson, D, “Intention and the Constitution – Whose Intent?” (1990) 6 Aust Bar Rev 93 at 93Google Scholar.

68 Hurd does attempt to provide an alternative conception of statutes, although her argument at this point is unconventional and somewhat counter-intuitive.

69 This statement was made by N Webster, and is quoted in G Wood, The Creation of the American Republic, 1776-1787 (1969) at 349.

70 M Stokes, above n 10 at 250.

71 G Bassham, above n 30 at 101.

72 G Craven, above n 56 at 29.

73 D Lyons, above n 66 at 219.

74 Or, at least, in a way which is not directly opposed to the wishes of the framers. See D Dawson, above n 67 at 100.

75 E Corwin quoted in G Bassham, above n 30 at 101.

76 D Lyons, above n 66 at 219-220; P Brest, above n 4 at 230.

77 See G Lindell, above n 4 at 30. Lindell indicates that only 60 per cent of eligible voters actually voted in the ratification process. Given the restrictions on the franchise at that time, this indicates that quite a small minority of the Australian population actually voted. See also Bennett, S, Federation (1975) at 19CrossRefGoogle Scholar.

78 A Mason, above n 13 at 24.

79 ACTV (1992) 177 CLR 106 at 137-138 per Mason CJ; cf at 181 per DawsonJ.

80 See, eg, Breavington v Godleman (1989) 169 CLR 41 at 123; University of Wollongong v Metwally (1984) 158 CLR 447 at 476-477. See also Kirmani v Captain Cook Cruises (1985) 159 CLR 351 per Deane and Murphy JJ; Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 at 1126 per Griffith CJ.

81 A Blackshield, “The Implied Freedom of Communication” in Lindell, G (ed), Future Directions in Australian Constitutional Law (1994) 232 at 241- 242Google Scholar; Lindell accepts that full independence was achieved prior to the enactment of the Australia Act 1986 (Cth), although he notes that the timing of the achievement of independence is unclear. See G Lindell, above n 4 at 34. On this point see' also China Ocean Shipping Co v South Australia (1979) 145 CLR 172 at 183 per Barwick CJ; Fraser, A, “False Hopes: Implied Rights and Popular Sovereignty in the Australian Constitution” (1994) 16 Syd LR 213 at215Google Scholar.

82 G Lindell, above n 4 at 37.

83 Ibid.

84 There is, however, room to question whether this legal truth conforms to our experience of government. See Finn, P, “The Abuse of Public Power in Australia: Making Our Governors Our Servants” (1994) 5 PLR 43Google Scholar.

85 Theophanous (1994) 182 CLR 104 at 176.

86 Ibid at 174. The instruction referred to is found in Clark, I, Studies in Australian Constitutional Law (1901) at 21- 22Google Scholar.

87 Of course, the idea of public acceptance is in many ways quite artificial. A poll conducted by Irving Saulwick in May 1992 found that 33 per cent of Australians did not even know that Australia has a written Constitution. It is thus totally implausible to suggest that there is any public knowledge of the framers' intentions or views, by reference to which the Constitution is accepted today. See I Saulwick, “Popular Attitudes to Federalism”. This paper was given at the Australian Federalism: Future Directions conference (University of Melbourne, 14-15 July 1994).

88 Theophanous (1994) 182 CLR 104 at 171 (emphasis added). In New South Wales v Commonwealth (1990) 169 CLR 482 at 504, Deane J similarly said that: “If the words … construed in context … extend to authorise the making of such laws, it is simply not to the point that some one or more of the changing participants in Convention Committees or Debates or some parliamentarian, civil servant or draftsman on another side of the world intended or understood that the words of the national compact would bear some different or narrower meaning.” Later, at 511, he said that, “It is not permissible to constrict the effect of the words which were adopted by the people as the compact of a nation by reference to the intentions or understandings of those who participated in or observed the Convention Debates.”

89 Thomson, J, “The Australian Constitution: Statute, Fundamental Document or Compact” (1985) 59 Law Inst J 1199Google Scholar.

90 G Lindell, above n 4 at 43-44.

91 A Blackshield, above n 81 at 242. A much more extreme view is provided by Detmold, M, “The New Constitutional Law” (1994) 16 Syd LR 228Google Scholar.

92 A Mason, above n 13 at 23. See also Doyle, J, “Constitutional Law: At the Eye of the Storm”(1993) 23 UWALR 15 at 26 and 31Google Scholar.

93 This syllogism was advanced in the United States by Justice Brewer: see South Carolina v United States 199 US 437 at 448 (1905).

94 One approach which will not be discussed here is that the provision for authoritative interpreters of the Constitution allows it to evolve. The question then becomes how much linkage to the text is required for an interpretation to be legitimate. See Munzer, S and Nickel, J, “Does the Constitution Mean What it Always Meant?” (1977) 77 Colum LR 1029CrossRefGoogle Scholar.

95 H L A Hart, The Concept of Law (1961) at 121-132. A useful summary of his views is provided in D Lyons, above n 66 at 221-223.

96 H LA Hart, above n 95 at 121-132.

97 For example, s 51(31) (acquisition of property on “just terms”); s 80 (trial by jury); s 44(i) (foreign powers).

98 D Lyons, above n 66 at 222.

99 Dworkin, R, Taking Rights Seriously (1977) at 134- 135Google Scholar.

100 This distinction is a familiar one in High Court jurisprudence. See Theophanous (1994) 182 CLR 104 at 143 per Brennan J; R v Federal Court of Australia; Ex parte WA Football League (1979) 143 CLR 190 at 233-234; Nolan v Minister for Immigration (1988) 165 CLR 178; Victoria v Commonwealth (1971) 122 CLR 353 at 399. See also J Doyle, above n 92 at 16.

101 F Schauer, above n 55 at 265.

102 Lyons provides a useful scientific example by referring to the concept of heat, and the competing conceptions of this phenomenon provided for some time by the caloric and kinetic theories of heat. See D Lyons, above n 66 at 225.

103 R Dworkin, above n 55 at 135.

104 See Leeth v Commonwealth (1992) 174 CLR 455. Were the views of Deane and Toohey JJ, and to a lesser extent Gaudron and Brennan JJ, to gain the acceptance of a clear majority of the Court, then there would be a constitutional right to equality before the law.

105 McHugh J has stated that: “[T]heories of federalism, politics and economics or the principles of the common law may be used to interpret particular provisions of the Constitution. But it is legitimate to use them only when there are grounds for concluding that the meaning of the constitutional provision was intended to be understood by reference to such a theory or principle”: Theophanous (1994) 182 CLR 104 at 198.

106 Commonwealth v Tasmania (1983) 158 CLR 1.

107 (1992) 177 CLR 106.

108 (1992) 177 CLR 1.

109 (1994) 182 CLR 104. One of the next important cases the High Court will decide on the consequences of the idea of representative government is discussed in P Creighton, “Apportioning Electoral Districts in a Representative Democracy” (1994) 24 UWALR 78 at 86. See McGinty v State of Western Australia (No P44 of 1993). Judgement has not yet been handed down in this case.

110 D Dawson, above n 67 at 101-102. A passage in the joint judgment of the Court in Cole v Whitfield (1988) 165 CLR 360 at 391 supports this view. The Court states that, despite the acknowledged obscurity of s 92 and foreseen difficulties with its application, “The delimitation of the precise scope and effect of the guarantee was left as an unresolved task for the future.” Later, at 392, they state that: “By refraining from defining any limitation on the freedom guaranteed bys 92, the Conventions and the Constitution which they framed passed to the courts the task of defining what aspects of interstate trade, commerce and intercourse were excluded from legislative or executive controls.”

111 M Stokes, above n 10 at 264-272. In that article the idea is explained as a type of “constitutional commitment” to a range of political values. The details of the commitment must be fleshed out over time. Stokes uses the notion of “honesty” to introduce this idea, and demonstrates how commitment to the ideal can overtake the speaker's initial views on the concept's application. This is quite similar to the use Dworkin makes of the concept of “fairness”: see R Dworkin, above n 99 at 134-135.

112 It should be recognised that utilising this approach to the interpretation of the Constitution requires the interpreter to go outside the four corners of the document and the relatively specific intentions of its authors and to look for arguments, or theories, that support a given interpretation. However, because this is taken to be required by the very nature of the concepts within the Constitution, the approach can claim fidelity to the Constitution.See D Lyons, above n 66 at 225. An example of this type of approach in the High Court can been seen in Koowarta v Bjelke-Peterson (1982) 153 CLR 168 and in Commonwealth v Tasmania (1983) 158 CLR 1, where the majority judges appeal to factors such as the need for Australia to play a proper role on the international stage when rejecting a theory of federalism which would have constrained the possible uses of the external affairs power.

113 Victoria v Commonwealth (1971) 122 CLR 353 at 396-397; cf Uebergang v Australian Wheat Board (1980) 145 CLR 266 at 294.

114 Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 367-368.

115 R v Coldham; ex parte Australian Social Welfare Union (1983) 47 ALR 225.

116 Theophanous (1994) 182 CLR 104 at 197.

117 See Driedger, E, The Construction of Statutes (1974) at 82Google Scholar; Jamieson, N, “Towards a Systematic Statute Law” (1976) Otago LR 568Google Scholar; Dias, R, Jurisprudence (5th ed 1985) at 166Google Scholar. The problems that apply to the concept of “legislative intention” are at least as intense as the problems associated with ascertaining the intention of the Constitution's framers, as the Constitutional conventions did not have the advantage of well established procedures, and all participants are likely to have had a more active interest in the document than all legislators could be presumed to have in every piece of legislation that passes before them.

118 One of the earliest discussions of these problems was undertaken in G MacCullum, above n 66 at 754. One of the better more recent discussions is found in R Dworkin, above n 56 at 313-354. For a critique of the whole notion of purposive interpretation, including the problems of legislative intention, see Barnes, J, “Statutory Interpretation, Law Reform and Sampford's Theory of the Disorder of Law” (1994) 22 FL Rev 116 at 129-130Google Scholar.

119 In a statutory context, see F Bennion, above n 54 at 351 and Ealing LBC v Race Relations Board [1972] AC 342 at 360-361. In the Constitutional context it can be difficult to determine who the drafters actually were. The Premiers changed some provisions after the final Constitutional Convention.

120 This term refers to the people who attended either any or all of the Constitutional Conventions charged with drafting the Constitution. This tends to be the category to which Australian lawyers traditionally look, although generally speaking no justification is advanced for this approach. For an argument that the intentions of these people should not be considered, see Kennett, G, “Constitutional Interpretation in the Corporations Case” (1990) 19 F L Rev 223 at 239-240CrossRefGoogle Scholar; McQueen, R, “Why High Court Judges Make Poor Historians: The Corporations Act Case and Early Attempts to Establish a National System of Company Regulation in Australia” (1990) 19 FL Rev 245Google Scholar. See also P Brest, above n 4 at 214-215; R Dworkin, above n 4 at 482-483.

121 In the United States context it has been said that: “[A]s the Constitution does not derive its force from that convention which framed it, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instruments in the belief that that was the sense designed to be conveyed.” See Thomas Cooley, A Treatise on the Constitutional Limitations (2nd ed 1871) at 66-67. See also J Ely, above n 12 at 17-18 and 129-130. For a discussion of the issue in the context of the racial amendments to the Commonwealth Constitution, see A Blackshield, above n 81 at 246.

122 This reflects the view that the Constitution is just a statute. This view is unattractive as it undermines the endeavours of the Australian people through the Conventions.

123 H Hurd, above n 58 at 968-976 (outlining six different models); R Dworkin, above n 56 at 320-321; G MacCullum, above n 66 at 763-777; G Bassham, above n 30 at 84 (dividing the theories into constructive [aggregation] models and nonconstructive [discovery] models, such as the agency approach). See also Moore, M, “The Semantics of Judging” (1981) 54 Sth Calif LR 266Google Scholar; Landis, J, “A Note on Statutory Interpretation” (1930) 43 Harv LR 888 at 889CrossRefGoogle Scholar.

124 D Dawson, above n 67 at 93.

125 The question of “what is the individual's intent” actually subsumes a range of different questions. See G MacCullum, above n 66 at 756.

126 R Dworkin, above n 56 at 321-324.

127 Ibid at 322; R Dworkin, above n 4 at 483-485.

128 None of the framers was a woman.

129 See R Dworkin, above n 4 at 483-484.

130 Grice, P, “Utterer's Meaning and Intentions” (1969) 78 Phil Rev 147 at 151-152CrossRefGoogle Scholar. The above statement ignores some of the subtleties of the theory.

131 M Stokes, above n 10 at 259.

132 For a range of arguments on this issue, see G Bassham, above n 30 at 51-53 and 68; Posner, R, Law and Literature: A Misunderstood Relation (1988) at 229Google Scholar and P Brest, above n 4 at 215-217. Note that the question cannot, without circularity, itself be made referable to the framers' intention. It is a question the court must answer for itself. See R Dworkin, above n 56 at 334 and R Dworkin, above n 4 at 495-497 (arguing that even if the framers did not want their intentions to be considered, it is still permissible to consider them).

133 An excellent discussion of this issue is found in R Dworkin, above n 4 at 488-498. See also Sandalow, T, “Constitutional Interpretation” (1981) 79 Mich LR 1033 at 1036CrossRefGoogle Scholar and 1045; D Brink, “Semantics in Legal Interpretation” in Schauer, F (ed), Law and Language (1993) 325 at 325CrossRefGoogle Scholar and 330 (arguing that intent at the abstract level should dominate).

134 MacCullum convincingly demonstrates that, while what the legislators did think does make a difference to intention, what they did not think does not make a difference unless they would have altered what they were doing if they had thought of it. They question is how do we know if they would have so altered their behaviour? Counterfactual questions attempt to answer this question. See G MacCullum, above n 66 at 772-773.

135 R Dworkin, above n 56 at 325. A basic difficulty with answering this type of question is that, as Dworkin points out, the answer to what a framer intended (or whether he or she would have supported an amendment to clarify the issue) depends very much on the circumstances in which the issue was raised.

136 M Stokes, above n 10 at 260-262.

137 Ibid at 259.

138 J Goldsworthy, above n 25 at 166.

139 There is clear acknowledgment in the legislative context that the idea of the “intention of the legislature” is fictitious. See Mills v Meeking (1990) 169 CLR 214 at 234 per Dawson J. See also Salomon v Salomon and Co [1897] AC 22 at 38 per Lord Watson.

140 G MacCullum, above n 66 at 768.

141 Cole v Whitfield (1988) 165 CLR 360 at 385.

142 G Craven, above n 56 at 22.

143 Ibid. See also G Lindell, “Recent Developments in the Judicial Interpretation of the Australian Constitution” in Lindell, G (ed), Future Directions in Australian Constitutional Law (1994) 1 at 40 and 45Google Scholar.

144 D Dawson, above n 67 at 101.

145 (1988) 165 CLR 360.

146 See G Bassham, above n 30 at 22-23.

147 M Stokes, above n 10 at 255.

148 (1992) 177 CLR 106 at 136; approved (1994) 182 CLR 104 at 160. In fact the framers did not ever discuss the possibility of incorporating a full Bill of Rights. See Kennett, G, “Individual Rights, the High Court and the Constitution” (1994) 19 MULR 581 at 582Google Scholar. See also Official Records of the Debates of the Australasian Federal Convention (Melbourne, 1898) Vol IV at 688- 690 (debating a proposed limitation preventing the deprivation of any person's life, liberty or property without due process of law); 0 Dixon, Jesting Pilate (1965) at 102. For a discussion of the prevailing sentiment at the time of federation, see Moore, H, The Constitution of the Commonwealth of Australia (1902) at 329CrossRefGoogle Scholar.

149 M Stokes, above n 10 at 255.

150 Ibid.

151 (1994) 182 CLR 104 at 128.

152 Quoted above at 146. See also Deane J's statements regarding the use of the intentions of the framers in Breavington v Godleman (1989) 169 CLR 41 at 132-133.

153 J Doyle, above n 92 at 25-26. The ability of original intent to act as a constraint is in any case limited. See T Sandalow, above n 133 at 1070. As he observes: “[B]ecause we seek a better understanding of the present and guidance in dealing with its problems rather than knowledge of the past for its own sake, we search out from the past those elements of experience and strains of thought that appear most relevant to our own time. In doing so, we almost inevitably mute other parts of history which – were they to be emphasised – might support a very different interpretation of the Constitution from that at which we have arrived.”

154 ACTV (1992) 177 CLR 106 at 135 (emphasis added). Approved in Theophanous (1994) 182 CLR 104 at 150. See similar language in Street v Queensland Bar Association (1989) 168 CLR 461 at 584-585 per McHugh J.

155 F Schauer, above n 55 at 269. See also P Jones, Philosophy and the Novel (1975) at 183-184,stating “[C]ommunication is a public, social affair and [the communicator] is not exempted from responsibility for aspects of his performance he failed to notice.”

156 (1992) 177 CLR 106 at 227-233. See also A Blackshield, above n 81 at 239-240.

157 See McTiernan J in R v Phillips (1970) 125 CLR 93, citing Sweezy v New Hampshire 354 US 234at 266 (1957).

158 For a discussion of the justifications and problems with inductive reasoning, see Flew, A, Hume's Philosophy of Belief (1961), ch 4Google Scholar; Goodman, N, Fact, Fiction, and Forecast (4th ed 1983)Google Scholar.

159 The reason this definition was abandoned was that it was considered somewhat unhelpful, not incorrect.

160 It is interesting to contrast the approaches of the majority and minority in Leeth v Commonwealth (1992) 174 CLR 455. Deane and Toohey JJ, at 485-487, use particular provisions as evidence of the general theme. Mason CJ, Dawson and McHugh JJ, at 467, reaching the opposite result, seem to utilise a variant of the statutory interpretation rule of expressio unius est exclusio alterius, which Deane and Toohey JJ consider inappropriate.

161 In R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 275 the High Court, per Dixon CJ, McTiernan, Fullagar and Kitto JJ, had said, in a vein entirely consistent with inductive logic: “If you knew nothing of the history of the separation of powers, if you made no comparison of the American instrument of government with ours, if you were unaware of the interpretation it had received before our Constitution was framed according to the same plan, you would still feel the strength of the logical inferences from Chaps I, II and III and the form and contents of ss 1, 61 and 71.” See also Uebergang v Australian Wheat Board (1980) 145 CLR 266 at 312; Finnis, J, “Separation of Powers in the Australian Constitution” (1968) 3 Adel LR 159Google Scholar.

162 See C Saunders, “Concepts of Equality in the Australian Constitution” in Lindell, G, Future Directions in Australian Constitutional Law (1994) 209 at 228-231Google Scholar; G Lindell, above n 143 at 35-36.Lindell discusses the reasoning used to reach the conclusion that the Constitution embodies a doctrine of legal equality by Deane and Toohey JJ in Leeth v Commonwealth (1992) 174 CLR 455.

163 For example, “[T]he efficacy of the system logically demands” the implication made: Melbourne Corporation v Commonwealth (1947) 74 CLR 31 at 83 per Dixon J; this was approved in Re Australian Education Union (1995) 128 ALR 609 at 626. “[T]he term sought to be implied must be logically or practically necessary for the preservation of the integrity of the structure”: ACTV (1992) 177 CLR 106 at 135 (emphasis added).

164 ACTV (1992) 177 CLR 106 at 135.

165 For example, “As the sun has risen every morning in the past, it will surely rise tomorrow.” This conclusion is “necessary” unless that word is given an extremely absolute meaning.

166 See, eg, Theophanous (1994) 182 CLR 104 at 126 per Mason CJ, Toohey and Gaudron JJ, and at 194 per Dawson J; Melbourne Corporation v Commonwealth (1947) 74 CLR 31 at 73; Victoria v Commonwealth (1971) 122 CLR 353 at 386 and 418; Engineers' (1920) 28 CLR 129 at 155; China Ocean Shipping Co v South Australia (1979) 145 CLR 172; British Medical Association v Commonwealth (1949) 79 CLR 201 at 279; Lim v Minister for Immigration, Local Government and Ethic Affairs (1992) 176 CLR 1; Gory[ v Greyhound Australia (1994) 179 CLR 463 at 493 per McHugh J; Street v Queensland Bar Association (1989) 168 CLR 461 at 491-493 per Mason CJ, at 512-513 per Brennan J, at 559-560 per Toohey J, and at 584 per McHugh J; Downs v Williams (1971) 126 CLR 61; Pioneer Express v Hotchkiss (1958) 101 CLR 536 at 567.

167 The test is more fully explained in the law of contract and statutory interpretation than it is in the context of constitutional interpretation. For example, in the case of statutory interpretation, the Court has said that “necessary intendment only means that the force of the language in its surroundings carries such strength of impression in one direction, that to entertain the opposite view appears wholly unreasonable.” See Worrall v Commercial Banking Co of Sydney Ltd (1917) 24 CLR 28 at 32 per Isaacs, Barton and Rich JJ. In the context of statutes binding the Crown, it has been said that “there will be such a necessary implication if it is manifest from the very terms of the statute that it was the intention of the legislature that the Crown should be bound”. See Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 144 CLR 107 at 116. This seems to link the implication very closely to express meaning.

168 For a discussion of these tests, see J Goldsworthy, above n 25 at 168-170.

169 Ibid at 140. Much of the criticism of the cases rests on the argument that the implication made was not in fact necessary. See, eg, N Douglas, “Freedom of Expression under the Australian Constitution” (1993) 16 UNSWLJ 315.

170 See J Doyle, “1947 Revisited: The Immunity of the Commonwealth from State Law” in Lindell, G (ed), Future Directions in Australian Constitutional Law (1994) 47 at 66Google Scholar. At 58, referring to Commonwealth v Cigamatic Pty Ltd (1962) 108 CLR 372, he says: “I have laboured over the origins of the Cigamatic principle because it seems to me that upon close scrutiny they rest on little more than assertion. No argument of necessity or even convenience,based on the nature of federal systems or practical experience, is advanced. There is no analysis of our Constitution to demonstrate that this doctrine is implicit in it.” See also Tappere, C, “Queensland Electricity Commission v Commonwealth” (1986) 16 FL Rev 305 at 317Google Scholar.

171 A Blackshield, above n 81 at 258; J Goldsworthy, above n 25 at 178. See also McHugh J who, before criticising the majority argument, characterises it in a very similar way: Theophanous (1994) 182 CLR 104 at 202-203.

172 (1992) 177 CLR 1 at 48-49.

173 Zines, L, “A Judicially Created Bill of Rights” (1994) 16 Syd LR 166 at 176Google Scholar.

174 For a discussion of this approach in the United States context, see C Black, Structure and Relationship in Constitutional Law (1969) at 7. A United States case which relies upon this methodology is Griswold v Connecticut 381 US 479 (1965), in which the right to privacy was constitutionalised in the context of a law which prevented married couples using contraceptives.

175 F Schauer, above n 55 at 260; see also F Recanati, above n 38 at 115.

176 There is of course a wide range of different understandings of the idea of “democracy”. For a description of the range of different voting systems which support western democracies, see P Creighton, above n 109 at 81-84. It is interesting to compare the Court's current approach with the earlier view that the Parliament has a wide discretion in determining what is consistent with representative democracy. See Attorney-General (Cth); Ex rel McKinlay v Commonwealth (1975) 135 CLR 1 at 57-58 per Stephen J; L McDonald, above n 23 at 169-171.

177 The most controversial chapter of Ely's groundbreaking book Democracy and Distrust focused on this aspect of the requirements of democracy. Ely had some difficulty fitting these types of rights into his process model, and it is this area of his endeavour that attracted the most criticism. See J Ely, above n 12, ch 6; R Berger, “Ely's 'Theory of Judicial Review'” (1981) 42 Ohio State LJ 87; L Tribe, “The Puzzling Persistence of Process-Based Constitutional Theories” (1980) 89 ale LJ 1063 at 1073-1074; P Brest, “The Substance of Process” (1981) 42 Ohio State LJ 131.

178 A Blackshield, above n 81 at 258. See also Ewing, K, “New Constitutional Constraints in Australia” (1993) Public Law 256 at 260-261Google Scholar.

179 McGraw-Hinds (Australia) v Smith (1979) 144 CLR 633 at 670; Miller v TCN Channel Nine (1986) 67 ALR 321 at 339; Buck v Bavone (1976) 135 CLR 110 at 137; Ansett Transport Industries (Operations) v Commonwealth (1977) 139 CLR 54 at 87-88; Sillery v R (1981) 35 ALR 227 at 233-234; Ansett Transport Industries (Operations) v Wardley (1980) 142 CLR 237 at 267; R v Director-General of Social Welfare for Victoria; ex parte Henry (1975) 133 CLR 369 at 388. See also G Winterton, “Extra-Constitutional Notions in Australian Constitutional Law” (1986) 16 F L Rev 223 at 227-230; O'Neill, N, “Constitutional Human Rights in Australia” (1987) 17 FL Rev 85 at 90-91Google Scholar.

180 F Schauer, above n 55 at 260-261; P Brest, above n 4 at 218; T Sandalow, above n 133 at 1061-1062.

181 Zines, L, “The State of Constitutional Interpretation” (1984) 14 FL Rev 277 at 285Google Scholar.

182 Ibid at 280. See the discussion in Melbourne Corporation v Commonwealth (1947) 74 CLR 31 at 70, where the United States and Australian experiences are contrasted. Compare Metcalf v Mitchell 269 US 514 at 523 (1926); Helvering v Gerhardt 304 US 405 (1938); D'Emden v Pedder (1904) 1 CLR 91; Engineers' (1920) 28 CLR 129.

183 L Zines, above n 181 at 284; See also M Coper, above n 56 at 299; Saunders, C, “The National Implied Power and Implied Restrictions on Commonwealth Power” (1984) 14 FL Rev 267 at 272-275Google Scholar.

184 This formulation of the rule was provided in the joint judgment of six members of the Court in Re Australian Education Union (1995) 128 ALR 609 at 629. Dawson J did not participate in the joint judgment, as he decided the case on the basis that there was no interstate dispute. Ibid at 644.

185 Ibid at 630.

186 F Easterbrook, above n 3 at 355. Easterbrook argues that movements in the level of constitutional generality can justify almost any outcome.

187 (1992) 174 CLR 455 at 467. Mason CJ's approach in the free speech cases is, however, quite different.

188 T Sandalow, above n 133 at 1046. This passage is, however, premised upon the disputed notion that the framers' particular purposes are relevant and ascertainable.

189 Theophanous (1994) 182 CLR 104 at 196; see also ACTV (1992) 177 CLR 106 at 186 per Dawson J.

190 Theophanous (1994) 182 CLR 104 at 203.

191 J Goldsworthy, above n 25 at 179.

192 Ibid at 180.

193 Goldsworthy, J, “The High Court, Implied Rights and Constitutional Change” Quadrant 39(3), March 1995, 46Google Scholar.

194 See P Grice, “Presupposition and Conversational lmplicature”, above n 39 at 269; R Harnish, “Logical Form and Implicature” in Davis, S (ed), Pragmatics (1991) 316 at 329CrossRefGoogle Scholar. The other two categories are conventional implications, arising out of words like “but” or “therefore” and conversational implications, which is the category upon which Goldsworthy focuses. Grice breaks down what is conveyed by an utterance into what is said, which is defined as the logically minimum content necessary to specify the truth conditions of the sentence, and implicatures, which are essentially everything else that is conveyed. Implicatures are therefore something of a catch-all. See Sadock, J, “On Testing for Conversational Implicature” in Davis, S (ed), Pragmatics (1991) 365Google Scholar.

195 R Stalnaker, “Pragmatic Presuppositions” in Davis, S (ed), Pragmatics (1991) 471CrossRefGoogle Scholar.

196 Ibid at 471-472.

197 L Karttunen, “Presupposition and Linguistic Context” in Davis, S (ed), Pragmatics (1991) 406 at 406Google Scholar.

198 D Lewis, “Scorekeeping in a Language Game” in Davis, S (ed), Pragmatics (1991) 416 at 416Google Scholar.

199 See P Grice, above n 39 at 273-274. The classic example given of pre-suppositions is the statement “The King of France is bald”. Grice argues that the existence of the King of France is pre-supposed by this utterance. This result is achieved by treating as common ground the sub-conjunction of two propositions, that “there is at least one King of France” and that “there is at most one King of France”.

200 Campbell, T, “Democracy, Human Rights, and Positive Law” (1994) 16 Syd LR 195 at 201Google Scholar.

201 See Nationwide News (1992) 177 CLR 1 at 71. Deane and Toohey JJ suggest that responsible government is arguably the fourth main general doctrine underlying the Constitution as a whole.

202 (1926) 37 CLR 393 at 413.

203 See Chapter 2 of the Constitution (ss 61-70).

204 Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 178.

205 (1992) 174 CLR 455 at 484-485. Gaudron J made a similar comment in ACTV, which is reproduced below at 169.

206 See ss 86, 88, 90, 51(ii), 51(iii), 99, 92, 24, 25 and 116. The support offered to the doctrine by many of these sections isextremely limited.

207 See, eg, Federal Commissioner of Taxation v Official Liquidator of EO Farley (1940) 63 CLR 278 at 304; Thompson v R (1989) 169 CLR 1 at 34; 0 Dixon, , “The Common Law as an Ultimate Constitutional Foundation” (1957) 31 ALJ 240Google Scholar, reprinted in Dixon, O, Jesting Pilate (1965) 203Google Scholar, J Doyle, above n 170 at 58. See also ABlackshield, above n 81 at 260, suggesting Sir Owen Dixon may be read as viewing the common law as a reservoir of assumptions about the legal and political system which the Constitution established.

208 Breavington v Godleman (1988) 169 CLR 41 at 120 per Deane J.

209 ACTV (1992) 177 CLR 106 at 208-210 per Gaudron J. Gaudron J's approach is discussed in A Blackshield, above n 81 at 260-261; L McDonald, above n 23 at 179-180; Theophanous (1994) 182 CLR 104 at 141 and 153 per Brennan J.

210 (1994) 182 CLR 104 at 141; see also Cheatle v R (1993) 177 CLR 541 at 552.

211 The judgments suggest that Brennan, Dawson and McHugh JJ consider it less relevant than the other judges, in the sense that they consider that many of the issues with which the common law deals are appropriately handled outside the constitutional framework.

212 The House of Lords provided a good illustration of the artificiality of this approach in Derbyshire County Council v Times Newspapers [1993] AC 534.

213 See D Smallbone, “Recent Suggestions of an Implied 'Bill of Rights' in the Constitution, Considered as Part of a General Trend in Constitutional Interpretation” (1993) 21 FL Rev 254 at 259-269. See the decisions of Cooke P in New Zealand in Taylor v New Zealand Poultry Board [1984] 1 NZLR 304 at 398; Fraser v State Services Commission [1984] 1 NZLR 116 at 121; New Zealand Drivers' Association v New Zealand Road Carriers [1982] 1 NZLR 374 at 390; L v M [1979] 2 NZLR 519 at 527.

214 Despite this approach apparently being left open in Union Steamship Co of Australia v King (1988) 166 CLR 1 at 10.

215 HP Lee, above n 18 at 624-625.

216 Australian National Airways v Commonwealth (1945) 71 CLR 29 at 81. This passage is approved by McHugh Jin Theophanous (1994) 182 CLR 104 at 196. It is also cited by Mason CJ In ACTV (1992) 177 CLR 106 at 135.

217 Specifically, Dixon J used it in construing the incidental power. It is possible that this limits the general applicability of the reasoning. See G Lindell, above n 143 at 21.

218 Australian Communist Party v Commonwealth (1950) 83 CLR 1 at 193. For a discussion of the rule of law in an Australian context, see D Kinley, “Constitutional Brokerage in Australia: Constitutions and the Doctrines of Parliamentary Supremacy and the Rule of Law” (1994) 22 F L Rev 194.

219 Victoria v Commonwealth (1971) 122 CLR 353 at 403 (emphasis added).

220 ACTV (1992) 177 CLR 106 at 135.

221 Both Australia and Britain are increasingly discovering that these mechanisms are not entirely effective. See Jones, T, “Legal Protection for Fundamental Rights and Freedoms: European Lessons for Australia” (1994) 22 FL Rev 57Google Scholar.

222 See Williams, G, “Civil Liberties and the Constitution … A Question of Interpretation” (1994) 5 PLR 82 at 100-101Google Scholar.

223 ACTV (1992) 177 CLR 106 at 209. See also O Dixon, Jesting Pilate (1965) at 205 and 212-213,which is cited by Gaudron J. Similar passages appear in Murphy J's judgment in McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633.

224 ACTV (1992) 177 CLR 106 at 210.

225 Re Australian Education Union (1995) 128 ALR 609 at 626.

226 Melbourne Corporation v Commonwealth (1947) 74 CLR 31 at 82.

227 (1992) 177 CLR 1 at 72.

228 Clayton v Heffron (1960) 105 CLR 214 at 248-249.

229 (1992) 177 CLR 106 at 149 (emphasis added).

230 For a helpful overview of the possibilities, see Rich, W, “Approaches to Constitutional Interpretation in Australia: an American Perspective” (1993) 12 U Tas LR 150Google Scholar.

231 T Campbell, above n 200 at 201-202.

232 Cooper v Stuart (1889) 14 App Cas 286 at 293 per Lord Watson.