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Published online by Cambridge University Press: 01 January 2025
The High Court applies the ‘text and structure approach’ when deriving constitutional implications. This requires implications to be drawn from the ‘text’ and ‘structure’ of the document. A particular line of criticism has been made by some scholars that frames this approach as a falsehood. According to these scholars, judges claim to be drawing implications solely from the ‘text’ and ‘structure’ but are, in fact, employing ‘external’ sources when carrying out this task. I argue that this criticism is misguided. Judges are using ‘external’ sources to help illuminate the ideas conveyed by, or contained within, the ‘text’ and ‘structure’. This means that their use of ‘external’ sources is not necessarily a circumvention of the text and structure approach but an accompaniment to it. The relevant scholars’ critique seems to be rooted in flawed conceptualisations of the Constitution’s ‘text’ and ‘structure’ and their ideational content. This work examines the problems with the relevant scholars’ critique and offers what I consider to be a more accurate explanation of the operation (and shortcomings) of the text and structure approach.
This article is based on a thesis completed by the author for the degree of Doctor of Philosophy: Constantine Avgoustinos, ‘Climate Change and the Australian Constitution: The Case for the Ecological Limitation (PhD Thesis, University of New South Wales, 2020). I would like to thank Gabrielle Appleby, Ben Golder and Amelia Thorpe for their supervision and support.
1. (1997) 189 CLR 520 (‘Lange’).
2. Ibid 566–7.
3. Before receiving unanimous support in Lange, the implied freedom had gained majority support in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 (‘Nationwide News’) and Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 (‘ACTV’).
4. Lange (n 1) 566–7 (citations omitted), citing McGinty v Western Australia (1996) 186 CLR 140, 168 (Brennan CJ), 182–3 (Dawson J), 231 (McHugh J), 284–5 (Gummow J) (‘McGinty’).
5. For discussion on the lack of clarity surrounding the specific provisions that this includes see Jeremy Kirk, ‘Constitutional Implications II: Doctrines of Equality and Democracy’ (2001) 25(1) Melbourne University Law Review 24, 49 (‘Constitutional Implications II’). While I use the term ‘representative government’ in this article, judges sometimes used the term ‘representative democracy’ when explaining the establishment of the implied freedom. These terms appear to be broadly interchangeable in this context: Jeremy Kirk, 'Administrative Justice and the Australian Constitution' in Robin Creyke and John McMillan (eds), Administrative Justice - The Core and the Fringe (Australian Institute of Administrative Law, 2000) 78, 99–101.
6. Lange (n 1) 557–8.
7. Ibid 560.
8. Catherine Penhallurick, ‘Commonwealth Immunity as a Constitutional Implication’ (2001) 29(2) Federal Law Review 151, 162; Jeremy Kirk, ‘Constitutional Implications I: Nature, Legitimacy, Classification, Examples’ (2000) 24(3) Melbourne University Law Review 645, 647 (‘Constitutional Implications I’).
9. (2020) 385 ALR 394, 398.
10. Ibid 398.
11. Ibid 395-6. The Court ultimately held that this proposed implication is not to be established: at 404.
12. See especially Adrienne Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ (1999) 23(3) Melbourne University Law Review 668 (‘The Limits of Constitutional Text and Structure’); Adrienne Stone, ‘Limits of Constitutional Text and Structure Revisited’ (2005) 28(3) University of New South Wales Law Journal 842 (‘Limits Revisited’); Kirk, ‘Constitutional Implications I’ (n 8); Kirk, ‘Constitutional Implications II’ (n 5); Nicholas Aroney, ‘Towards the Best Explanation of the Constitution: Text, Structure, History and Principle in Roach v Electoral Commissioner’ (2011) 30(1) University of Queensland Law Journal 145 (‘Towards the Best Explanation of the Constitution’); Jeffrey Goldsworthy, ‘Constitutional Implications Revisited’ (2011) 30(1) University of Queensland Law Journal 9 (‘The Implied Rights Case: Twenty Years On’).
13. James Stellios, Zines’s The High Court and the Constitution (Federation Press, 6th ed, 2015) 562–3; Tom Campbell and Stephen Crilly, ‘The Implied Freedom of Political Communication, Twenty Years On’ (2011) 30(1) University of Queensland Law Journal 59, 59–60; George Williams and Andrew Lynch, ‘The High Court on Constitutional Law: The 2010 Term’ (2011) 34(3) University of New South Wales Law Journal 1006, 1026–7. While these works are the focus of this article, other literature may be considered to endorse this line of criticism. This includes the prominent work on the text and structure approach by Adrienne Stone: see below n 29.
14. For a definition of ‘external’ sources see part II(D).
15. Stellios (n 13) 562–3.
16. Ibid 563.
17. Ibid.
18. Williams and Lynch (n 13) 1026–7.
19. Campbell and Crilly (n 13) 59–60.
20. Ibid 60.
21. See above n 4 and accompanying text.
22. McGinty (n 4) 176 (emphasis added).
23. See discussion in part III.
24. See discussion in part V.
25. See discussion in part IV(B).
26. Stone, ‘The Limits of Constitutional Text and Structure’ (n 12); Stone, ‘Limits Revisited’ (n 12); Adrienne Stone, 'Insult and Emotion, Calumny and Invective: Twenty Years of Freedom of Political Communication' (2011) 30(1) University of Queensland Law Journal 79 (‘Insult and Emotion’).
27. Stone, ‘Limits Revisited’ (n 12) 850; Stone, ‘Insult and Emotion’ (n 26) 90.
28. Stone, ‘Limits Revisited’ (n 12) 850; Stone, ‘Insult and Emotion’ (n 26) 90.
29. See discussion in part IV(B). Stone, however, seems to be making a criticism of the text and structure approach akin to that of the relevant scholars in certain junctures of her work. This presents an inconsistency in her scholarship. Stone argues that the Constitution’s ‘text and structure’ is simply ‘too bare to provide clear guidance in any given case’: Stone, ‘Limits Revisited’ (n 12) 844. This indicates that she views the ‘text’ and ‘structure’ as not conveying enough ideas to anchor (at least) the establishment of the freedom of political communication, which is the implication at the centre of her discussion. Other comments in her work compound this view, such as her statement that judges deciding to formulate the implied freedom with a proportionality test component requires ‘reference to values or principles external to the Constitution’: Stone, ‘The Limits of Constitutional Text and Structure’ (n 12) 668. Stone concludes that this amounts to a ‘depart[ure]’ from the text and structure approach: at 668. In other segments of her work, however, Stone seems to be arguing something different. She argues that the judges in Coleman v Power (2004) 220 CLR 1 are ‘adher[ing]’ to the text and structure approach, despite coming to vastly different conclusions on the protection of insulting language under the implied freedom: Stone, ‘Limits Revisited’ (n 12) 850. Similarly, she concludes that ‘[i]n almost every case, there will be competing, and often vastly different, conceptions of political communication any of which could satisfy the text and structure method’: Stone, ‘Insult and Emotion’ (n 26) 90 (emphasis added). Thus, in some segments of her work, she seems to align with the relevant scholars, arguing that judges are departing from the text and structure approach when drawing on seemingly ‘external’ sources because the ‘text’ and ‘structure’ are too ‘bare’. In other segments of her work, she seems to be aligning with my view. Namely, she is arguing that judges are adhering to the approach when drawing on seemingly ‘external’ sources (she infers that this is what has led them to come to such vastly different conclusions). This argument appears to frame the ‘text’ and ‘structure’ not as ‘bare’, but broad and malleable enough to justify such differing views.
30. See, eg, Melbourne Corporation v Commonwealth (1947) 74 CLR 31 (‘Melbourne Corporation’), discussed in Stellios (n 13) 477–501. See also R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 (‘Boilermakers’), discussed in Fiona Wheeler, ‘The Boilermakers Case’ in HP Lee and George Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003) 160.
31. See above nn 8–11 and accompanying text.
32. See, eg, Michael Detmold, ‘The New Constitutional Law’ (1994) 16(2) Sydney Law Review 228; Jonathan Crowe, 'Constitutional Text, Authorial Intentions and Implied Rights: A Response to Allan and Arcioni' (2021) 49(1) Federal Law Review 149; Patrick Emerton, ‘The Integrity of State Courts under the Australian Constitution’ (2019) 47(4) Federal Law Review 521 (‘The Integrity of State Courts’).
33. For examples of literature suggesting how the Court should approach the establishment of implications see Jeffrey Goldsworthy, ‘Implications in Language, Law and the Constitution’ in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (Federation Press, 1994) 150 (‘Implications in Language’); Aroney, ‘Towards the Best Explanation of the Constitution’ (n 12); Rebecca Welsh, ‘A Path to Purposive Formalism: Interpreting Chapter III for Judicial Independence and Impartiality (2013) 39(1) Monash University Law Review 66. Some works may be viewed as falling into both categories, exploring how the Court is, and proposing how it should, derive implications. Rosalind Dixon, eg, discusses how a ‘functionalist’ model of interpretation is evident in some judgements involving implications as well as how it deserves further attention from the Court (and her fellow scholars): Rosalind Dixon, ‘The Functional Constitution: Re-Reading the 2014 High Court Constitutional Term’ (2015) 43(3) Federal Law Review 455.
34. Emerton, ‘The Integrity of State Courts’ (n 32). Emerton explains that ‘one function of academic legal writing is to provide a supplement to, an underpinning for, and in some cases even a sympathetic reconstruction of, doctrine and doctrinal reasoning’: at 523. He views his work as ‘a rigorous grounding of the Kable doctrine which is recognisably true to the way that the High Court has articulated it’: at 523.
35. Emerton, ‘The Integrity of State Courts’ (n 32) 523; Hilary Putnam, ‘Dreaming and “Depth Grammar”’ in RJ Butler (ed), Analytical Philosophy (Basil Blackwell, 1962) 211; Hilary Putnam, ‘The Meaning of “Meaning”’ in Hilary Putnam (ed), Mind, Language and Reality: Philosophical Papers, Volume 2 (Cambridge University Press, 1975) 215; Saul Kripke, Naming and Necessity (Basil Blackwell, 1980); Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (‘Kable’). Emerton also draws on the sociological understanding of institutions put forward by Philip Selznick (and the treatment of his work by Martin Krygier in particular): Martin Krygier, Philip Selznick: Ideals in the World (Stanford University Press, 2012).
36. Emerton, ‘The Integrity of State Courts’ (n 32) 521–2.
37. See discussion in part II(B)–(C). Drawing on analysis from a particular school of thought in linguistics or the philosophy of language, therefore, has more utility for Emerton. He is examining the Court’s reasoning for deriving a specific implication, the Kable doctrine, rather than its overarching framework for deriving implications, which permits such a diversity of views.
38. Goldsworthy, ‘Implications in Language’ (n 33) 152–62. For discussion on Goldsworthy’s interpretive method informed by Grice see part II(C).
39. This lack of anchorage also partially explains why the Court appears to be operating with a broad definition of ‘constitutional implications’. See discussion in part II(B).
40. These concepts are ‘text’ and ‘structure’, in particular, as discussed in part V.
41. (1993) 177 CLR 541 (‘Cheatle’).
42. The joint judgement in Cheatle refers to ‘the requirement of unanimity’ as ‘implicit’ in s 80: at 560. For discussion on the potential for this requirement to be viewed as something other than an implication see: below n 88 and accompanying text. Further, this is not to suggest that the meaning of words historically or in common law are always determinative of the implications drawn from them. See discussion in parts II(C) and IV(B); Constantine Avgoustinos, ‘Climate Change and the Australian Constitution: The Case for the Ecological Limitation’ (PhD Thesis, University of New South Wales, 2020) 55–61.
43. Justice Susan Kenny, ‘The High Court of Australia and Modes of Constitutional Interpretation’ in Statutory Interpretation: Principles and Pragmatism For a New Age (Judicial Commission of New South Wales, 2007) 45, 62 (‘Modes of Constitutional Interpretation’); Kirk, ‘Constitutional Implications I’ (n 8) 664.
44. Kenny, ‘Modes of Constitutional Interpretation’ (n 43) 62; Kirk, Constitutional Implications I’ (n 8) 664.
45. (1997) 190 CLR 513.
46. Ibid 535 (Brennan CJ); 550–1 (Dawson J); 577 (McHugh J).
47. Ibid.
48. Kenny, ‘Modes of Constitutional Interpretation’ (n 43) 62; Kirk, ‘Constitutional Implications I’ (n 8) 664. These foundational principles appear to be constitutional implications themselves. McHugh J, eg, refers to separation of powers as an ‘implication’ and ‘implied principle’ in McGinty (n 4) 233. See discussion in Avgoustinos (n 42) 107–8.
49. The High Court has never conclusively stated which principles are considered structural principles. The court seems to align with the view espoused by Deane and Toohey JJ in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 that ‘[t]here are at least three main general doctrines of government which underlie the Constitution: federalism, separation of powers and representative government’: at 69–70 (emphasis added). Deane and Toohey JJ question whether ‘responsible government’ is its own structural principle or a subsidiary of ‘representative government’: at 71. Other possible structural principles might include parliamentary supremacy or the rule of law. These are principles that (at least some) judges view as foundational to the Constitution’s operation and have at least provided assistance in the process of assessing the merits of proposed implications: Kirk, ‘Constitutional Implications I’ (n 8) 664. For examples of parliamentary supremacy providing such assistance see Kable (n 35) 74; Williams v Commonwealth (2012) 248 CLR 156, 370. For examples of the rule of law providing such assistance see Australian Communist Party v Commonwealth (1951) 83 CLR 1, 193; Thomas v Mowbray (2007) 233 CLR 307, 342. For discussion on the unclear positions of the rule of law and parliamentary supremacy in Australian constitutional law see David Kinley, ‘Constitutional Brokerage in Australia: Constitutions and the Doctrines of Parliamentary Supremacy and the Rule of Law’ (1994) 22(1) Federal Law Review 194; Lisa Burton Crawford, The Rule of Law and the Australian Constitution (Federation Press, 2017).
50. See above nn 2–7 and accompanying text.
51. See discussion in parts III and IV.
52. Lange (n 1).
53. Some precedent suggests that all constitutional implications, not just structural ones, must pass a necessity test: Kirk, ‘Constitutional Implications I’ (n 8) 649; Goldsworthy, ‘The Implied Rights Case: Twenty Years On’ (n 12) 18. See, eg, Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 155.
54. ACTV (n 3) 135; Goldsworthy, ‘The Implied Rights Cases: Twenty Years On’ (n 12) 19; Kirk, ‘Constitutional Implications I’ (n 8) 664. For an example of its recent invocation by the High Court see Burns v Corbett (2018) 265 CLR 304, 355, 383, 388–9. For discussion on the meaning of ‘necessity’ see n 88. With regard to ‘structural’ implications limiting government power, the government action in question does not need to present a threat to the entirety of the Constitution’s principle-based structure for an implication restraining such action to be deemed ‘necessary’. It only needs to present a threat to one or more structural principles (although the operation of these principles cannot be neatly prised apart). The Melbourne Corporation doctrine, eg, centres on preserving the structural principle of federalism while the Boilermakers doctrine centres on preserving the structural principle of separation of powers.
55. For discussion see Avgoustinos (n 42) 104–16.
56. See above n 50 and accompanying text.
57. McGinty (n 4) 184.
58. For examples of the Court using this term (and its derivatives) see Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 146 (‘Theophanous’); Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 260; Mulholland v Australian Electoral Commission (2004) 220 CLR 181, 274.
59. Goldsworthy, ‘Implications in Language’ (n 33) 152–4.
60. Ibid 152–62. For more detailed discussion on these categories see part II(C).
61. Goldsworthy, ‘Implications in Language’ (n 33).
62. Kirk, ‘Constitutional Implications I’ (n 8); Kirk, ‘Constitutional Implications II’ (n 5).
63. Kirk, ‘Constitutional Implications I’ (n 8) 647–8.
64. Stanley Fish, ‘Intention Is all There Is: A Critical Analysis of Aharon Barak's Purposive Interpretation in Law’ (2008) 29 Cardozo Law Review 1109, 1112; James Allan, ‘Constitutional Interpretation Wholly Unmoored from Constitutional Text: Can the High Court of Australia Fix Its Own Mess?’ (2020) 48(1) Federal Law Review 30, 33.
65. Fish (n 64) 1112; Kirk, ‘Constitutional Implications I’ (n 8) 647.
66. Kirk, ‘Constitutional Implications I’ (n 8) 647; Aharon Barak, ‘On Constitutional Implications and Constitutional Structure’ in David Dyzenhaus and Malcolm Thorburn (eds), Philosophical Foundations of Constitutional Law (Oxford University Press, 2016) 53, 57–8 (‘Constitutional Structure’); Goldsworthy, ‘Implications in Language’ (n 33) 154.
67. Kirk, ‘Constitutional Implications I’ (n 8) 647; Barak, ‘Constitutional Structure’ (n 66) 53, 57–8; Goldsworthy, ‘Implications in Language’ (n 33) 154.
68. Goldsworthy, ‘Implications in Language’ (n 33) 152. See below n 105 and accompanying text.
69. Kirk, ‘Constitutional Implications I’ (n 8) 647. Kirk ostensibly considers implications to also include ideas conveyed indirectly by sources other than words (for instance, pictures). His discussion on implications and the examples he provides, however, centre on words.
70. With regard to structural principles, see part II(A).
71. Australian Constitution s 114 states: ‘A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force’.
72. See above nn 1–7 and accompanying text.
73. Barak, 'Constitutional Structure' (n 66) 61; ACTV (n 3) 135.
74. Crowe, ‘The Narrative Model of Constitutional Implications: A Defence of Roach v Electoral Commissioner’ (2019) 42(1) University of New South Wales Law Journal 91, 117 (‘Narrative of Constitutional Implications’). Patrick Emerton captures this sentiment differently, stating that ‘to know the meaning of the text is to know the content of the law’: Emerton, ‘Political Freedoms and Entitlements in the Australian Constitution: An Example of Referential Intentions Yielding Unexpected Legal Consequences’ (2010) 38(2) Federal Law Review 169, 170 (‘Political Freedoms and Entitlements’).
75. See discussion in part II(C).
76. Also see Kirk, ‘Constitutional Implications I’ (n 8) 662.
77. Kirk, ‘Constitutional Implications I’ (n 8) 647; Barak, 'Constitutional Structure' (n 66) 53, 57–8; Stephen Donaghue, ‘The Clamour of Silent Constitutional Principles’ (1996) 24(1) Federal Law Review 133, 137.
78. Kirk, ‘Constitutional Implications I’ (n 8) 647; Goldsworthy, ‘Implications in Language’ (n 33) 153–4; Barak, 'Constitutional Structure' (n 66) 53, 57–8; Donaghue (n 77) 137; Levy v Victoria (1997) 189 CLR 579, 607.
79. Kirk, ‘Constitutional Implications I’ (n 8) 648.
80. Ibid 649. Also see Geoffrey Sawer, ‘Implication and the Constitution - Part 1’ (1948) 4 Res Judicatae 15, 17; Barak, 'Constitutional Structure' (n 66) 53; Emerton, ‘Political Freedoms and Entitlements’ (n 74) 175–7.
81. Kirk, ‘Constitutional Implications I’ (n 8) 648–9.
82. For discussion on the difficulties associated with defining and categorising interpretive methods see Avgoustinos (n 42) 47–9.
83. Stephen Gageler, ‘Beyond the Text: A Vision of the Structure and Function of the Constitution’ (2009) 32(2) Australian Bar Review 138, 144.
84. For taxonomies of different interpretive methods see: Jeremy Kirk, ‘Constitutional Interpretation and a Theory of Evolutionary Originalism’ (1999) 27(3) Federal Law Review 323 (‘Theory of Evolutionary Originalism’); Sotirios Barber and James Fleming, Constitutional Interpretation: The Basic Questions (Oxford University Press, 2007); Justice Dyson Heydon, ‘Sir Maurice Byers Lecture: Theories of Constitutional Interpretation: A Taxonomy’ [2007] (Winter) Bar News 12; Larry Alexander, ‘Constitutional Theories: A Taxonomy and (Implicit) Critique’ (2014) 51(3) San Diego Law Review 623.
85. ‘Intentionalism’ can broadly be defined as a method emphasising the importance of interpreting the Constitution in accordance with the intentions of the Constitution’s framers: Aharon Barak, Purposive Interpretation in the Law (Princeton University Press, 2011) 260 (‘Purposive Interpretation’); Natalie Stoljar, ‘Counterfactuals in Interpretation: The Case against Intentionalism’ (1998) 20(1) Adelaide Law Review 29; Greg Craven, ‘After Literalism, What?’ (1992) 18(4) Melbourne University Law Review 874, 882 (‘After Literalism’). The rationale for adopting this method rests on the premise that the ideas conveyed by a particular arrangement of words primarily, if not solely, emanates from the person(s) who wrote them: Fish (n 64) 1112; Greg Craven, ‘Original Intent and the Australian Constitution—Coming Soon to a Court Near You?’ (1990) 1(2) Public Law Review 166, 177 (‘Original Intent’); Goldsworthy, ‘Implications in Language’ (n 33) 167. ‘Progressivism’ can broadly be defined as an interpretive method emphasising two premises: Kirk, ‘Theory of Evolutionary Originalism’ (n 84) 331. The first premise is that much of the Constitution’s language is ambiguous: Craven, ‘After Literalism’ (n 84) 874; Kirk, ‘Theory of Evolutionary Originalism’, 331; Sir Anthony Mason, ‘The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience’ (1986) 16(1) Federal Law Review 1, 23. The second premise is that, where different plausible interpretations of the Constitution arise given this ambiguity, judges should prioritise interpretations that serve the contemporary needs of the Australian community: Kirk, ‘Theory of Evolutionary Originalism’, 331; Craven, ‘After Literalism’ (n 84) 874–5; Michael Detmold, ‘Australian Law: Federal Movement’, (1991) 13(1) Sydney Law Review 31; Mason 23. For further discussion on defining these interpretive methods see: Avgoustinos (n 42) 52–5.
86. Justice Bradley Selway, ‘Methodologies of Constitutional Interpretation in the High Court of Australia’ (2003) 14(4) Public Law Review 234, 250; Justice Susan Kenny, ‘The High Court on Constitutional Law: The 2002 Term’ (2003) 26(1) University of New South Wales Law Journal 210; Nicholas Aroney, ‘The High Court on Constitutional Law: The 2012 Term: Explanatory Power and the Modalities of Constitutional Reasoning’ (2013) 36(3) University of New South Wales Law Journal 863, 864–5; Chief Justice Robert French, ‘Theories of Everything and Constitutional Interpretation’ (Speech delivered at the University of New South Wales, 19 February 2010). This is not to suggest that judges are not constrained to some extent by precedent (including accepted notions on when such precedent may be overturned). See discussion in part IV(A).
87. Kenny, ‘Modes of Constitutional Interpretation’ (n 43) 46.
88. For discussion on the benefits of the judiciary remaining free to employ a range of interpretive methods see French (n 86); Murray Gleeson, ‘Foreword’ in Michael White and Aladin Rahemtula (eds), Queensland Judges on the High Court (Supreme Court of Queensland Library, 2003) vii, viii–ix; Cass Sunstein, Designing Democracy: What Constitutions Do (Oxford University Press, 2001) 50–1; Daniel Farber, ‘The Originalism Debate: A Guide for the Perplexed’ (1989) 49(4) Ohio State Law Journal 1085, 1103.
89. Gleeson (n 88) viii–ix.
90. This could be considered an interpretive method of its own. Goldsworthy refers to such a method as ‘pluralism’: Goldsworthy, ‘The Implied Rights Case: Twenty Years On’ (n 12) 12. It also has similarities to the method put forward by Philip Bobbitt in the United States constitutional law context regarding different modes of interpretation: Bobbit, Constitutional Fate: Theory of the Constitution (Oxford University Press, 1982).
91. (2013) 250 CLR 441, 455.
92. See above n 81 and accompanying text.
93. See, eg, Goldsworthy, ‘Implications in Language’ (n 33); Goldsworthy, ‘Constitutional Implications and Freedom of Political Speech: A Reply to Stephen Donaghue’ (1997) 23(2) Monash University Law Review 362 (‘Reply to Steven Donaghue’); Goldsworthy, ‘The Implied Rights Case: Twenty Years On’ (n 12).
94. Goldsworthy, ‘Reply to Steven Donaghue’ (n 93) 362–3; Goldsworthy, ‘Implications in Language’ (n 33). His understanding of how words convey ideas is based on the work of philosopher of language, Paul Grice: ‘Implications in Language’ (n 33) 154–5; Paul Grice, Studies in the Way of Words (Harvard University Press, 1989).
95. For discussion on Goldsworthy’s view on why the framers’ intentions are his focus (as opposed to those of other plausible candidates: namely, the Australian people of the 1890s who approved the Constitution at referenda or the Imperial Parliament who enacted the Constitution) see Jeffrey Goldsworthy, ‘Originalism in Constitutional Interpretation’ (1997) 25(1) Federal Law Review 1, 26.
96. Goldsworthy, ‘Implications in Language’ (n 33) 152–62; See above nn 62–4 and accompanying text. Goldsworthy suggests that this list is non-exhaustive but, as Kirk notes, ‘a clear aim of this project of classification is to limit the legitimate scope for inferring implications from the Constitution’: ‘Implications in Language’ (n 33) 154; Kirk, ‘Constitutional Implications I’ (n 8) 657. Goldsworthy suggests another possible category of implications is some form of ‘spurious implication’: Goldsworthy, ‘The Implied Rights Case: Twenty Years On’ (n 12) 20. This is where judges are ‘in effect inserting some provision into’ the Constitution: Goldsworthy, ‘The Implied Rights Case: Twenty Years On’ (n 12) 20. He notes that ‘calling them implications is misleading’ given that they are seemingly additions to the Constitution, rather than derived from (or ‘already implicit in’) the Constitution: Goldsworthy, ‘The Implied Rights Case: Twenty Years On’ (n 12) 20–1. While Goldsworthy generally views ‘spurious implications’ as illegitimate, he asserts that they may be valid in exceptional circumstances where the framers failed to provide a solution to unanticipated problems: Goldsworthy, ‘The Implied Rights Case: Twenty Years On’ (n 12) 20.
97. For examples of works critiquing Goldsworthy’s views on implications see: Donaghue (n 77); Crowe, ‘Narrative of Constitutional Implications’ (n 74); Emerton, ‘Political Freedoms and Entitlements’ (n 74); Emerton, ‘The Integrity of State Courts’ (n 32); Kirk, ‘Constitutional Implications I’ (n 8) 657–61.
98. Kirk, ‘Theory of Evolutionary Originalism’ (n 84) 331.
99. See above n 94.
100. Crowe’s ‘wide contextualism’ seems to fit into the broad category of ‘progressivist’ interpretive methods (although, again, such labels cannot be used with precision: See above nn 91–3 and accompanying text). For discussion on ‘wide contextualism’ (and the associated ‘narrative model’ for understanding constitutional implications) see: ‘Narrative of Constitutional Implications’ (n 74) 93; ‘The Role of Contextual Meaning in Judicial Interpretation’ (2013) 41(3) Federal Law Review 417; ‘Functions, Context and Constitutional Values’ in Rosalind Dixon (ed), Australian Constitutional Values (Hart Publishing, 2018) 61.
101. Crowe, ‘Narrative of Constitutional Implications’ (n 74) 116.
102. Ibid.
103. Ibid.
104. Ibid; (2007) 233 CLR 162 (‘Roach’).
105. Regarding ‘extrinsic sources’, see: Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192, 231 (Brennan J). Regarding ‘extrinsic circumstances’, see ACTV (n 3) 181 (Dawson J). For discussion on the ambiguity of these statements see: Kirk, ‘Constitutional Implications I’ (n 8) 666–7.
106. See discussion in part I.
107. See discussion in part IV(B).
108. See discussion in part IV(B).
109. McGinty (n 4) 169.
110. Ibid 231–2. Also see: Nationwide News (n 3) 70.
111. Lange (n 1) 559–60; Anthony Harold Birch, Representative and Responsible Government (Allen and Unwin, 1964); Official Report of the National Australasian Convention Debates, Adelaide, 24 March 1897.
112. Stone, ‘The Limits of Constitutional Text and Structure’ (n 12) 674–5. The Court in Lange seemed to be strongly influenced by Justice McHugh’s concerns that ‘representative government’ not be treated as an ‘external political theory’ untethered to the particular wording of the document: Stone 674–5; McGinty (n 4) 235. In McGinty, McHugh J likened it to treating the 128-section-long Constitution as containing a ‘s 129’ establishing ‘representative government’ and all that flows from it: at 234.
113. Roach (n 104) 188–9.
114. For discussion on the relationship between the ‘text’ and ‘structure’ and Constitution’s words see part II(A).
115. Ibid.
116. The approach, therefore, still allows judges to employ various versions of progressivism. Progressivists in the Australian context generally abide by the view that implications are drawn from the Constitution’s words and the particular wording of the document cannot be disregarded: Greg Craven, ‘Cracks in the Facade of Literalism: Is there an Engineer in the House?’ (1992) 18(3) Melbourne University Law Review 540, 561–2 (‘Cracks in the Façade of Literalism’). Their position, however, is that the meaning carried by these words is often ambiguous and can be plausibly interpreted in a range of ways: at 561–2. See also above n 78.
117. The further, more specific, requirement that implications only be drawn from the principle-based structure where ‘necessary’ is not as restrictive as it might seem. Such an implication is deemed ‘necessary’ if required for the efficient operation of (or some aspect of) the Australian constitutional system: Lange (n 1) 561; Nicholas Aroney, ‘A Seductive Plausibility: Freedom of Speech in the Constitution’ (1994) 18(2) University of Queensland Law Journal 249, 264–7. Judges maintain a substantial amount of discretion when determining what an ‘efficient’ constitutional system entails and this does not inhibit their choice of interpretive method. Jeffrey Goldsworthy makes a similar point, stating that the necessity test does not restrain judges’ interpretive method and require them to consider the ‘necessity’ of a proposed implication with regard to what the framers’ intended (as he would prefer): ‘The Implied Rights Case: Twenty Years On’ (n 12) 18–31.
118. This is also evident from Justice McHugh’s comments in McGinty: ‘The Constitution contains no injunction as to 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’: (n 4) 230. Further, this lack of restriction on judges’ interpretive method makes it difficult to sustain any suggestion that the text and structure approach requires judges to interpret the Constitution in a specifically legalist manner. See discussion in Avgoustinos (n 42) 86–7.
119. Justin Malbon, ‘The Race Power under the Australian Constitution: Altered Meanings’ (1999) 21(1) Sydney Law Review 80, 87–98, 106; George Williams, ‘Race and the Australian Constitution’ (2013) 28(1) Australasian Parliamentary Review 4, 6–7. One of the framers and subsequently Australia’s first Prime Minister, Edmund Barton, for example, states at the 1898 Convention Debate that the Commonwealth ‘should have the power to regulate the affairs of the people of coloured or inferior races who are in the Commonwealth’: Official Report of the National Australasian Convention Debates, Melbourne, 27 January 1898, 228–9.
120. Sarah Pritchard, ‘The 'Race' Power in Section 51(xxvi) of the Constitution’ (2011) 15(2) Australian Indigenous Law Review 44, 50–1; Malbon (n 119) 109.
121. (1998) 195 CLR 337, 366 (‘Kartinyeri’). An argument can be made that this is not a constitutional implication but an idea directly conveyed by the Constitution’s words. The directness with which this idea flows from the Constitution’s words, however, cannot be conclusively determined: See above nn 86–8 and accompanying text.
122. Kartinyeri (n 121) 365.
123. Ibid 366.
124. Malbon (n 119) 109.
125. ACTV (n 3) 186 (Dawson J).
126. Ibid 184 (Dawson J).
127. The most explicit statement of disagreement on the significance of the framers’ intentions regarding the freedom of political communication in ACTV was made by Mason CJ: ACTV (n 3) 135–6. He stresses that the framers’ ‘unexpressed assumptions’ do not equate to an ‘implication’ in the Constitution: at 135. Gummow, Kirby and Crennan JJ in Roach offer an example of judges drawing on the framers’ intentions in a different manner than Dawson J to explain their vision of ‘representative government’: see above n 113 and accompanying text. They do not view the framers’ intentions as being such decisive factors when determining whether an implication to protect the structural principle of ‘representative government’ may be established (in this instance, an implication securing voting access for certain prisoners): Roach (n 104) 188–9. Instead, they draw on the framers’ intentions ‘merely’ to better understand disjunctions between s 44(ii) (on the qualifications of Parliament members) and ss 8 and 30 (on the qualifications of voters): see in particular at 192–5.
128. Boilermakers (n 30) 275.
129. Sir Robert Garran, Prosper the Commonwealth (Angus and Robertson, 1958) 194. Within the framework of intentionalism, however, one might question Garran’s assessment of the framers’ views on this topic and the extent to which they were shared. See discussion in Fiona Wheeler, ‘Original Intent and the Doctrine of the Separation of Powers in Australia’ (1996) 7(2) Public Law Review 96.
130. Goldsworthy, ‘Implications in Language’ (n 59) 162.
131. Ibid 162.
132. Kirk, ‘Constitutional Implications I’ (n 8) 650; Dixon (n 33) 458.
133. For discussion on the ‘external’ sources an intentionalist might be willing to consider see: Goldsworthy, ‘Implications in Language’ (n 33) 181; Jeffrey Goldsworthy, ‘Moderate versus Strong Intentionalism: Knapp and Michaels Revisited’ (2005) 42(2) San Diego Law Review 669, 671–2 (‘Moderate versus Strong Intentionalism’); Kirk, ‘Theory of Evolutionary Originalism’ (n 84) 328–30.
134. For examples of works on the ongoing debate with regard to the use of social scientific materials being used in legal adjudication see: Alexander Tanford, ‘The Limits of a Scientific Jurisprudence: The Supreme Court and Psychology’ (1990) 66(1) Indiana Law Journal 137; Michael Heise, ‘Brown Undone?: The Future of Integration in Seattle After Pics v Seattle School District No 1’ (2008) 31(4) Seattle University Law Review 863; Matthew Matusiak, Michael Vaughn and Rolando del Carmen, ‘The Progression of “Evolving Standards of Decency” in US Supreme Court Decisions’ (2014) 39(3) Criminal Justice Review 253.
135. This ties in with Kirk’s discussion of judges’ use of ‘external doctrine’ to determine the ideas conveyed by the ‘text’ and ‘structure’: If an external doctrine is invoked in order to resolve ambiguity, or to fill out the text, or to influence interpretation in some way, then that doctrine is given some effect to the extent that it makes a difference. The Court in Cheatle [(n 41)] did not merely take account of the historical requirement of unanimity in jury verdicts; it gave this aspect of the concept hard effect. The particular construction would not have been adopted but for the influence of the external doctrine’: Kirk, ‘Constitutional Implications I’ (n 8) 667 (citations omitted).
136. For discussion on defining ‘literalism’ see: Craven, ‘Cracks in the Façade of Literalism’ (n 116); Kirk, ‘Theory of Evolutionary Originalism’ (n 84) 324–26; Heydon (n 84) 26.
137. See discussion in part III.
138. Heydon (n 84) 26.
139. See discussion in part IV(A).
140. This is not to negate the good reasons that exist for permitting judges to employ the interpretive method of their choice: see above nn 96–100 and accompanying text. I am merely noting the specific drawback that comes with this position regarding the ability of the text and structure approach to circumscribe how implications are derived.
141. See discussion in part V.
142. See discussion in part I; Stone, ‘The Limits of Constitutional Text and Structure’ (n 12); Stone, ‘Limits Revisited’ (n 12) 850; Stone, ‘Insult and Emotion’ (n 26) 90.
143. Fish (n 64) 1112.
144. The collection of ideas conveyed by the Constitution’s ‘structure’ can be understood as a sub-set of the collection of ideas conveyed by its ‘text’. As discussed in part II(A), this is because the ideas conveyed by the document’s organisational structure is a product of its ‘text’. They are the ideas conveyed by the arrangement of these words. The ideas conveyed by the principle-based structure are also products of this ‘text’ given the framing of structural principles as manifestations from the Constitution’s words. For further discussion see Avgoustinos (n 42) 80.
145. Campbell and Crilly (n 13) 60.
146. See discussion in part II(C).
147. See discussion in part IV(A).
148. Elisa Arcioni and Adrienne Stone, ‘The Small Brown Bird: Values and Aspirations in the Australian Constitution’ (2016) 14 International Journal of Constitutional Law 60, 76; Kirk, ‘Theory of Evolutionary Originalism’ (n 84) 327.
149. See discussion in Avgoustinos (n 42) 50–1.
150. See above n 94 and accompanying text.
151. See discussion in Avgoustinos (n 42) 43–4.
152. Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29, 81.
153. For the earlier criticism, see above nn 159–61 and accompanying text.