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Constitutional Interpretation Wholly Unmoored from Constitutional Text: Can the HCA Fix Its Own Mess?

Published online by Cambridge University Press:  01 January 2025

James Allan
James Allan*
Affiliation:
School of Law, University of Queensland, Brisbane, Australia
*
The author may be contacted at j.allan@law.uq.edu.au.
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Abstract

In this article, the author argues that certain types of constitutional interpretation in Australia have become far too unmoored from the written constitutional text and its intended meaning, the reductio ad absurdum of such unmoored general approaches being the recent High Court of Australia case Brown. The author therefore asserts that there is a serious problem with some types of constitutional interpretation in Australia that have evolved to a point where we can observe few if any outside constraints on the outcomes available to top judges. The author finishes, briefly, by considering what can be done about this state of affairs.

Type
Articles
Information
Federal Law Review , Volume 48 , Issue 1 , March 2020 , pp. 30 - 45
Copyright
Copyright © 2019 The Author(s)

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References

1. Brown v Tasmania (2017) 261 CLR 328 (‘Brown’).

2. Ibid 340 [5] (Kiefel CJ, Bell and Keane JJ).

3. Ibid 430 [312].

4. (1992) 177 CLR 106 (‘ACTV’).

5. (1997) 189 CLR 520 (‘Lange’).

6. (2004) 220 CLR 1.

7. (2013) 252 CLR 530 (‘Unions NSW’).

8. (2015) 257 CLR 178 (‘McCloy’).

9. (2007) 233 CLR 162 (‘Roach’).

10. (2010) 243 CLR 1 (‘Rowe’). See generally James Allan, ‘The Three ‘Rs’ of Recent Australian Judicial Activism: Roach, Rowe and (No)’Riginalism’ (2012) 36(2) Melbourne University Law Review 743 (‘The Three Rs’).

11. Nicholas Aroney and Benjamin B Saunders, ‘On Judicial Rascals and Self-Appointed Monarchs: The Rise of Judicial Power in Australia’ (2017) 36(2) University of Queensland Law Journal 221, 231–45.

12. Jeffrey Goldsworthy, ‘Is Legislative Supremacy Under Threat?’ (Conference Paper, Samuel Griffith Society Conference, 12 August 2016).

13. See generally (2011) 30(1) University of Queensland Law Journal, which is a special issue with the theme of ‘The Implied Rights Cases: Twenty Years On’; Aroney and Saunders (n 11).

14. ACTV (n 4). See generally Volume 30, Issue 1 of the University of Queensland Law Journal for a discussion of this case and the so-called ‘implied rights’ jurisprudence by Jeff Goldsworthy, Adrienne Stone, Nicholas Aroney, Katharine Gelber, Ian Callinan, Tom Campbell and others.

15. Talk of implications or implied outcomes that are divorced from any and all real-life human beings who might have wanted to imply such a meaning is a highly contestable use of ‘implied’. For powerful arguments to this effect, see Larry Alexander, ‘Simple-Minded Originalism’ in Grant Huscroft and Bradley W Miller (eds), The Challenge of Originalism: Theories of Constitutional Interpretation (Cambridge University Press, 2011) 87–98; Stanley Fish ‘The Intentionalist Thesis Once More’ in Grant Huscroft and Bradley W Miller (eds), The Challenge of Originalism: Theories of Constitutional Interpretation (Cambridge University Press, 2011) 99–119. See also James Allan, ‘In Honour of a Simple-Minded Originalist’ (2019) 34(2) Constitutional Commentary 401.

16. Ibid.

17. See, eg, James Allan, ‘Against Written Constitutionalism’ (2015) 14(1) Otago Law Review 191 (‘Against Written Constitutionalism’).

18. Which is a regular justification for the significantly increased judicial power in the UK and Canada. See, eg, Lord Dyson, ‘Are the Judges Too Powerful?’ (UCL Bentham Association Presidential Address, University College London, 12 March 2014) 11: ‘The effect of the Human Rights Act is that Parliament has given judges a power that they did not previously possess.’ See also Paul Craig, ‘Judicial Power, the Judicial Power Project and the UK’ (2017) 36(2) University of Queensland Law Journal 355.

19. For my take on the differences between strong judicial review on federalism grounds versus rights-like grounds, see James Allan, ‘Not in for a Pound—In for a Penny? Must a Majoritarian Democrat Treat All Constitutional Judicial Review as Equally Egregious?’ (2010) 21(2) King’s Law Journal 233.

20. Brown (n 1) 340 [5] (citations omitted).

21 And to convey the extent of this reliance solely on past judicial decisions, the plurality judgment in Brown refers to Lange in paragraphs [88], [90], [92], [102], [121], [125], [127] and [150] while referring to McCloy in paragraphs [94], [102], [104], [123], [124], [125], [131], [132], [133] and [147]. Other precedents, not least ACTV and Coleman v Power, are also heavily relied upon and all in the absence of any mention of any provision anywhere in our written Constitution.

22. Brown (n 1) 361 [92] (emphasis added to highlight the passive voice which masks who is doing, and who is deciding, what).

23 Ibid 361 [93].

24 Ibid 369 [127] (emphasis added).

25 Ibid 370 [131].

26 Ibid 340 [5] (citations omitted).

27. Ibid. To the extent that even when the Justices speak of that ‘for which the Constitution provides’, as they do in para 121, the footnote in the plurality judgment in support of that reference to the Constitution directs the reader merely to the Lange case—not to any provision in the Constitution itself.

28. Ibid 362–3 [96]–[101].

29. Ibid 363–4 [102]–[104].

30. Ibid 364–7 [105]–[118].

31. Ibid 367–8 [119]–[122].

32. Ibid 368 [123].

33 Ibid 368–70 [123]–[131].

34 Ibid 370–1 [132]–[138].

35. Ibid 370 [133].

36. Ibid 371–3 [139]–[146].

37. Ibid 373–4 [147]–[151].

38 Ibid 376 [157].

39 Ibid 376 [159].

40 Ibid 398 [236], 418–22 [282]–[289].

41 ‘[T]he test which their Honours posited is not the same as European proportionality analysis: it borrows in part from its analytical techniques but, in place of its three steps, the McCloy test adopts three criteria pertinent to the Australian constitutional context as tools for assessing appropriateness and adaptedness.’ Ibid 416 [278] (Nettle J). What his Honour does not mention is that European constitutional law has bills of rights and we do not—the legitimate and democratic basis for performing such proportionality analyses, therefore, being less than evident.

42. See Allan, The Three Rs (n 10).

43. See Anne Twomey, ‘Rowe v Electoral Commission—Evolution or Creationism?’ (2012) 31(2) University of Queensland Law Journal 181 (special issue on ‘Worst Top Court Decisions of the Last Quarter Century’).

44. Brown (n 1) 478 [481].

45 Ibid 482 [490].

46 Gunnar Beck, ‘Judicial Activism in the Court of Justice of the EU’ (2017) 36(2) University of Queensland Law Journal 333, 353.

47. Thomas Poole, ‘The Reformation of English Administrative Law’ (2009) 68(1) Cambridge Law Journal 142, 146.

48. Roach (n 9).

49. Rowe (n 10).

50. Allan, The Three Rs (n 10) 749–50 (footnotes removed). For a book-length treatment of ‘proportionality’ as a legal concept—one that also explores the core level subjectivity involved in such analyses—see Grant Huscroft, Bradley Miller and Grégoire Webber (eds), Proportionality and the Rule of Law: Rights, Justification, Reasoning (Cambridge University Press, 2014).

51. For a similar view as regards the US, India, Fiji and other countries, see Aroney and Saunders, ‘On Judicial Rascals and Self-Appointed Monarchs’ (n 11), 221, part II.

52. For a small sample see, eg, James Allan, Democracy in Decline: Steps in the Wrong Direction (McGill-Queen’s University Press, 2014); James Allan, ‘Human Rights, Doubts and Democracy’ in Tom Campbell and Kylie Bourne (eds), Political and Legal Approaches to Human Rights (Routledge, 2018) 113–30.

53. In turn, this may be because the burden is adjudged trifling and slight (also subjective), or the contested provisions compelling (ditto). Anyway it involves evaluations as to the impugned law’s compatibility with representative and responsible government (this involving value judgement as to when a law meets that standard as well as the more fundamental determination of what, at least in the instance before the court, will be picked out as being important so far as the myriad aspects of representative and responsible government are concerned).

54 See ACTV (n 4). For the fundamentally and deeply unpersuasive nature of that reasoning process—one that in 1992 purported to find a limited rights-related freedom or immunity from legislative interference; one that was to be overseen by the top judges; one that had lain hidden or undiscovered for nine decades in the ‘structures’ of the Constitution and in those five ‘directly chosen by the people’ words; and one that was claimed to exist even though no real life actual person at the time can be found who thought this, or anything like this—see Michael Sexton, ‘Flights of Fancy: The Implied Freedom of Political Communication 20 Years On’ (Conference Paper, Samuel Griffith Society Conference, August 2012) 8; Allan, The Three Rs (n 10); see also various contributors to the special issue cited in (n 13).

55. Sexton (n 54).

56. I have modified this from a hypothetical provision mooted (for the purpose of showing up its open-endedness and democratic deficiencies) in Antonin Scalia, ‘Romancing the Constitution: Interpretation as Invention’ in Grant Huscroft and Ian Brodie (eds), Constitutionalism in the Charter Era (LexisNexis, 2004) 337, 341.

57. In fact, it received the lowest national ‘Yes’ vote of any national referendum in Australia ever, at 30.79 per cent. See Australian Electoral Commission, ‘Referendum dates and results’ (Web Page, 2012) <www.aec.gov.au/Elections/referendums/Referendum_Dates_and_Results.htm>.

58. See James Allan, ‘You Don’t Always Get What You Pay For: No Bill of Rights for Australia’ (2010) 24(2) New Zealand Universities Law Review 179.

59. ‘The defeat of the 1988 referendum shows that any attempt to create an Australian statement of rights should not be in the form of a constitutional amendment. Instead, we should consider an Act of Parliament’: George Williams, ‘Legislating for a Bill of Rights Now’ (Department of the Senate Occasional Lecture, Parliament House, 17 March 2000).

60. This welcoming would not extend to law schools, where the implied freedom jurisprudence is immensely popular. Of course, support for a bill of rights amongst legal academics in Australia is also extremely high.

61. Richard Ekins and Graham Gee, ‘Putting Judicial Power in its Place’ (2017) 36(2) University of Queensland Law Journal 375, 375 (emphasis added).

62. See Allan, The Three Rs (n 10) 773–4, 781.

63. Gregoire Webber, ‘Judicial Power and Judicial Responsibility’ (2017) 36(2) University of Queensland Law Journal 205, 217.

64 R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 (‘Miller’).

65. Gavin Phillipson, ‘Brexit, Prerogative and the Courts: Why did Political Constitutionalists Support the Government Side in Miller?’ (2017) 36(2) University of Queensland Law Journal 311, 325. Despite noting this, Phillipson goes on to argue that Miller was rightly decided. I disagree, and indeed believe that the referendum was central to the case and should certainly have been made so by the government’s legal team. See James Allan, ‘Democracy, Liberalism, and Brexit’ (2018) 39(3) Cardozo Law Review 879.

66. Brown (n 1) 476 [471].

67. That said, in matters constitutional the judges owe a duty to the public at large and are free to ignore concessions when it is believed that the government is running dead on an issue.

68. A broadly similar point can be made about the way the States run federalism cases in the High Court. Why, for instance, does no State ever attack the High Court’s approach to interpreting s 51 and other federalism provisions, an approach unlike anything seen in, say, Canada? Why do they never attack Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 (‘Engineers Case’) and draw a link, inter alia, between Australia’s world’s highest vertical fiscal imbalance and the High Court’s incredibly pro-centre record in federalism disputes? For points related to all these federalism queries, see James Allan and Nicholas Aroney, ‘An Uncommon Court: How the High Court of Australia has Undermined Australian Federalism’ (2008) 30(2) Sydney Law Review 245. See, too, counsel’s response in the Work Choices hearing when asked whether he was trying to revive the reserve powers notion, and the facetious judicial response at the mere prospect of this: Transcript of Proceedings, New South Wales v Commonwealth [2006] HCATrans 217.

69. On the appointment of the very top judges, and what characteristics should and should not be sought, see James Allan, ‘Is Talk of the Quality of Judging Sometimes Strained, Feigned or not Sustained?’ in Rebecca Ananian-Welsh and Jonathan Crowe (eds), Judicial Independence in Australia: Contemporary Challenges, Future Directions (Federation Press, 2016) 64.

70. Larry Alexander, ‘Did Casey Strike Out? Following and Overruling Constitutional Precedents in the Supreme Court’ in Christopher Peters (ed), Precedent in the United States Supreme Court (Springer, 2014) 47, 47.

71. Or, as I have argued elsewhere, you shun written constitutionalism and opt for New Zealand-style unwritten constitutionalism with parliamentary sovereignty at its heart. See Allan, Against Written Constitutionalism (n 17).

72. Alexander (n 70) 48.

73. Ibid 50.

74. Albeit that Alexander is diffident even about this qualification in contexts where such overrulings of wrongly decided past cases can be stayed for a time to allow the possibility of a constitutional amendment, so that if this truly would have calamitous effects the people could show that to be the case by acting to amend their constitution. Alexander also recognises that this qualification will depend upon a country’s amending formula, whether it is one that procedurally is something short of impossible to invoke. See Alexander (n 70) 53.

75. In the short-term there is considerably more scope to make the ‘overruling this would have calamitous consequences’ argument as regards the Engineers Case and the century of what to my mind are some pretty awful federalism decisions in this country. To be clear, I do not believe it does in fact reach that threshold. But it is much more arguable than with the implied freedom jurisprudence, the overruling of which would have almost no bad consequences in my view, short-term or long-term.