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The Functional Constitution: Re-Reading the 2014 High Court Constitutional Term

Published online by Cambridge University Press:  01 January 2025

Rosalind Dixon
Rosalind Dixon*
Affiliation:
University of New South Wales
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Abstract

A ‘functional’ approach to constitutional interpretation is well-accepted in many other jurisdictions, including the United States, and offers a promising middle path between the extremes of pure formalism and pragmatism. It is, however, under-developed as an approach to constitutional interpretation, rather than doctrine, in Australia. The article offers an exploration of what it would mean to adopt a more explicitly functionalist approach to the interpretation of the Constitution, drawing on constitutional cases decided by the High Court in 2014.

Type
Article
Information
Federal Law Review , Volume 43 , Issue 3 , September 2015 , pp. 455 - 492
Copyright
Copyright © 2015 The Australian National University

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Footnotes

The author thanks Gabrielle Appleby, Joanna Davidson, Peter Gerangelos, Richard Holden, James Stellios, Adrienne Stone, George Williams and participants at the UNSW Gilbert + Tobin Centre of Public Law 2015 Constitutional Law Conference for helpful comments on prior versions of the paper. Thanks are also due to the HSF Law & Economics Initiative at UNSW for research support, and to Melissa Vogt and Guy Baldwin for outstanding research assistance.

References

1 Gerangelos, Peter, ‘Interpretational Methodology in Separation of Powers Jurisprudence: The Formalist/Functionalist Debate’ (2005) 8 Constitutional Law and Policy Review 1Google Scholar; Stellios, James, The Federal Judicature: Chapter III of the Constitution (LexisNexis, 2010)Google Scholar; Appleby, Gabrielle J, ‘Imperfection and Inconvenience: Boilermakers’ and the Separation of Judicial Power in Australia’ (2012) 31 University of Queensland Law Journal 265Google Scholar; Welsh, Rebecca, ‘A Path to Purposive Formalism: Interpreting Chapter III for Judicial Independence and Impartiality (2013) 39 Monash University Law Review 66Google Scholar; Lim, Brendan, ‘Laboratory Federalism and the Kable Principle’ (2014) 42 Federal Law Review 519.CrossRefGoogle Scholar

2 Gerangelos, ‘Interpretational Methodology in Separation of Powers Jurisprudence’, above n 1; Welsh, above n 1.

3 Winterton, George, Parliament, the Executive and the Governor-General: A Constitutional Analysis (Melbourne University Press, 1983)Google Scholar; Stellios, The Federal Judicature, above n 1; Simpson, Amelia, ‘The (Limited) Significance of the Individual in Section 117 State Residence Discrimination’ (2008) 32 Melbourne University Law Review 639Google Scholar; Stephenson, Scott, ‘Federalism and Rights Deliberation’ (2014) 38 Melbourne University Law Review 709.Google Scholar

4 The major exception is, of course, the work of Leslie Zines on approaches to constitutional interpretation: see Zines, Leslie, The High Court and the Constitution (Federation Press, 5th ed, 2008) ch 17.Google Scholar

5 See Mistretta v United States, 488 US 361, 407 (Blackburn J) (1989) (‘Mistretta’) (‘The legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and non-partisanship’, and ‘[t]hat reputation may not be borrowed by the political Branches to cloak their work in the neutral colors of judicial action’).

6 (2014) 253 CLR 393 (‘Emmerson’).

7 (2014) 252 CLR 416 (‘Williams II’).

8 (2014) 313 ALR 221 (‘Tajjour’).

9 Posner, Cf Richard A, How Judges Think (Harvard University Press, 2010).Google Scholar

10 See, eg, Welsh, above n 1; Carrigan, Frank, ‘A Blast from the Past: The Resurgence of Legal Formalism’ (2003) 27 Melbourne University Law Review 163Google Scholar; Zines, The High Court and the Constitution, above n 4, 596–618.

11 See, eg, David Jackson, ‘Implications of the Constitution’ (Paper presented at the Law Council of Australia 29th Australian Legal Convention, Brisbane, 27 September 1995).

12 See, eg, SirDixon, Owen, ‘Upon Taking the Oath of Office as Chief Justice’ in Woinarski, Severin (ed), Jesting Pilate (Law Book, 1965) 245Google Scholar; SirDixon, Owen, ‘Concerning Judicial Method’ in Woinarski, Severin (ed), Jesting Pilate (Law Book, 1965) 152Google Scholar; Selway, Justice B M, ‘Methodologies of Constitutional Interpretation in the High Court of Australia’ (2003) 14 Public Law Review 234Google Scholar; Zines, Leslie, ‘Legalism, Realism and Judicial Rhetoric in Constitutional Law’ (2002) 5 Constitutional Law and Policy Review 21.Google Scholar For debate about Dixon's actual approach, see, eg, Wait, Michael, ‘Slumbering Sovereign: Sir Owen Dixon's Common Law Constitution Revisited’ (2001) 29 Federal Law Review 57CrossRefGoogle Scholar; Ayres, Philip, Owen Dixon (Miegunyah Press, 2003)Google Scholar; Wheeler, Fiona, ‘Book Review: Owen Dixon, Philip Ayres, the Miegunyah Press, 2003’ (2003) 31 Federal Law Review 415CrossRefGoogle Scholar; Coper, Michael, ‘Concern about Judicial Method’ (2006) 30 Melbourne University Law Review 554Google Scholar; Gava, John, ‘Sir Owen Dixon, Strict Legalism and McRae v Commonwealth Disposals Commission’ (2009) 9 Oxford University Commonwealth Law Journal 141.CrossRefGoogle Scholar

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17 Ibid.

18 220 NY 259 (1917).

19 Compare eg the questions raised in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] 89 ALJR 434 (addressing the corporate, or non-corporate, status of a Queensland entity).

20 Stevenson, Angus (ed), Oxford Dictionary of English (Oxford University Press, 3rd ed, 2010)Google Scholar (The theory that all aspects of a society serve a function and are necessary for the survival of that society).

21 Cohen, above n 16, 823. This also echoes the call by Julius Stone for judges to make such choices in a way that was informed by a broad form of interdisciplinary inquiry, or by attention to the insights of politics philosophy economics and psychology: Stone, above n 14.

22 Cf Zines, The High Court and the Constitution, above n 4, 610.

23 Strauss, Peter L, ‘Formal and Functional Approaches to Separation-of-Powers Questions — A Foolish Inconsistency?’ (1987) 72 Cornell Law Review 488Google Scholar; Strauss, Peter L, ‘The Place of Agencies in Government: Separation of Powers and the Fourth Branch’ (1984) 84 Columbia Law Review 573.CrossRefGoogle Scholar

24 Eskridge, William N Jr, ‘Relationships between Formalism and Functionalism in Separation of Powers Cases’ (1998) 22 Harvard Journal of Law and Public Policy 21, 21.Google Scholar

25 Chemerinsky, Erwin, ‘Formalism and Functionalism in Federalism Analysis’ (1997) 13 Georgia State University Law Review 959, 959.Google Scholar

26 Ibid 960.

27 Cohen himself for instance embraced the idea of ‘pragmatic’ approaches to legal decision-making: see Cohen, above n 16, 822.

28 Strauss, ‘The Place of Agencies in Government’, above n 23, 596.

29 Ibid 604.

30 Chemerinsky, ‘Formalism and Functionalism in Federalism Analysis’, above n 25, 975.

31 Ibid 973. In the Australian context, cf Bret Walker and David Hume, ‘Broadly-framed Powers and the Constitution’ (Paper presented at the NSW Bar Association, Sydney, 3 March 2015) (on general powers and risk of abuse). But see the notion of purposive formalism in separation of powers jurisprudence in the US and Australia: Plaut v Spendthrift Farm Inc, 514 US 211 (Scalia J) (1995); Walker, Kristen, ‘Persona Designata, Incompatibility and the Separation of Powers’ (1997) 8 Public Law Review 153.Google Scholar

32 Cohen, above n 16, 829–30, 841–4, 847–9.

33 For recognition of the variety of different ways of defining and understanding functionalism, see, eg, Redish, Martin H, ‘Federal Judicial Independence: Constitutional and Political Perspectives’ (1995) 46 Mercer Law Review 697Google Scholar; Gerangelos, ‘Interpretational Methodology in Separation of Powers Jurisprudence’, above n 1.

34 Holmes, Cf Oliver Wendell Jr, ‘The Path of the Law’ (1897) 10 Harvard Law Review 457Google Scholar; Cohen, above n 16; Stone, above n 14.

35 SirMason, Anthony, ‘Legislative and Judicial Law-Making: Can We Locate an Identifiable Boundary?’ (2003) 24 Adelaide Law Review 15.Google Scholar

36 Ibid 21.

37 Ibid; Zines, The High Court and the Constitution, above n 4.

38 Zines, The High Court and the Constitution, above n 4, 639.

39 Ibid 622. See also SirMason, Anthony, ‘The Evolving Role and Function of the High Court’ in Opeskin, Brian R and Wheeler, Fiona (eds), The Australian Federal Judicial System (Melbourne University Press, 2000) 95.Google Scholar

40 For a more general theoretical comparative discussion of the relevance of these kinds of constraints see Roux, Theunis, ‘Principle and Pragmatism on the Constitutional Court of South Africa’ (2009) 7 International Journal of Constitutional Law 106.CrossRefGoogle Scholar

41 After initially endorsing the notion of representative democracy as implicit in the constitutional scheme in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 (‘ACTV’), the Court in Lange v Australian Broadcasting Company (1997) 189 CLR 520 (‘Lange’) also suggested that it was only the notion of representative and responsible government recognised by ss 7 and 24 of the Constitution which ground an implied principle of freedom of political action under the Constitution. See Zines, Leslie, ‘A Judicially Created Bill of Rights?’ (1994) 16 Sydney Law Review 166Google Scholar; Stone, Adrienne, ‘The Limits of Constitutional Text and Structure Revisited’ (2005) 28 University of New South Wales Law Journal 842.Google Scholar Also note the reliance in this context on notions of representative government implicit in s 128 of the Constitution.

42 See s 128 of the Constitution and cases on stare decisis: Mirehouse v Rennell (1833) 6 ER 1015, 1023 (Parke J); Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1; Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1949) 77 CLR 493, 496. For the link between stability and these values, see, eg, Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833, 867–8 (1992) (on stability and fairness and reliance interests); SirMason, Anthony, ‘The Use and Abuse of Precedent’ (1988) 4 Australian Bar Review 93.Google Scholar On stability and economic investment: Lee, Thomas R, ‘Stare Decisis in Economic Perspective: An Economic Analysis of the Supreme Court's Doctrine of Precedent’ (2000) 78 North Carolina Law Review 643.Google Scholar

43 On the need to give emphasis to the idea of self-government in this context, see Gageler, ‘Beyond the Text’, above n 15.

44 See, eg, Commonwealth v Tasmania (1983) 158 CLR 1 (‘Tasmanian Dam Case’); Cole v Whitfield (1988) 165 CLR 360; Street v Queensland Bar Association (1989) 168 CLR 461.

45 See Part IV. The list of virtues associated with federalism also generally includes the more general constitutional value of non-arbitrary government.

46 See, eg, Murphy J in R v Director-General of Social Welfare (Vic); Ex parte Henry (1975) 133 CLR 369, 388; General Practitioners Society v Commonwealth (1980) 145 CLR 532, 565; Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237, 266–7; Sillery v The Queen (1981) 180 CLR 353, 360–3; Buck v Bavone (1976) 135 CLR 110, 132–7; Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54, 85–8.

47 Zines, The High Court and the Constitution, above n 4, 180–4.

48 For scepticism as to the distinction, see, eg, ibid.

49 Stone, above n 41.

50 See, eg, Appleby, Gabrielle, ‘The High Court and Kable: A Study in Federalism and Rights Protection’ (2014) 40 Monash University Law Review 673.Google Scholar See also Kennedy, Duncan, ‘Form and Substance in Private Law Adjudication’ (1976) 89 Harvard Law Review 1685CrossRefGoogle Scholar (offering a more radical critique of the indeterminacy of substance-based, as well as formalist, reasoning).

51 Zines, The High Court and the Constitution, above n 4, 626.

52 Stellios, The Federal Judicature, above n 1.

53 See, eg, ibid 103; James Stellios, ‘The Normalisation of Judicial Functions’ (Paper presented at the Judicial Independence Conference, University of Queensland, 10 July 2015).

54 Acts Interpretation Act 1901 (Cth) s 15AA; Interpretation Act 1987 (NSW) s 33; Interpretation of Legislation Act 1984 (Vic) s 35(a); Acts Interpretation Act 1954 (Qld) s 14A; Interpretation Act 1984 (WA) s 18; Acts Interpretation Act 1915 (SA) s 22; Acts Interpretation Act 1931 (Tas) s 8A; Interpretation Act 1978 (NT) s 62A.

55 This reflects the understanding that legislation is often designed to manifest competing interests, or to achieve a balance between competing purposes. See Gleeson, Murray, ‘The Meaning of Legislation: Context, Purpose and Respect for Fundamental Rights’ (2009) 20 Public Law Review 26, 32–3.Google Scholar Easterbrook, Cf Frank H, ‘Judicial Discretion in Statutory Interpretation’ (2004) 57 Oklahoma Law Review 1.Google Scholar For constitutions, this understanding is even more salient: see, eg, Dixon, Rosalind and Ginsburg, Tom, ‘Deciding Not to Decide: Deferral in Constitutional Design’ (2011) 9 International Journal of Constitutional Law 636.CrossRefGoogle Scholar

56 To follow the analogy adopted by Cohen, the purpose of a corporation at the time of incorporation might be purely profit-driven, but later understood to include the promotion of a broader range of interests, including the protection of stakeholders or community interests. A functionalist approach would allow broader scope to accommodate this later understanding. This distinction may itself, however, be largely irrelevant if one adopts a wholly ‘objective’, rather than mixed subjective/objective, approach to legislative intention: see, eg, Ekins, Richard and Goldsworthy, Jeffrey, ‘The Reality and Indispensability of Legislative Intentions’ (2014) 36 Sydney Law Review 39, 46–51.Google Scholar

57 In other jurisdictions, many judges and scholars also explicitly endorsed the idea of a purposive approach to constitutional interpretation: see, eg, Barak, Aharon, Purposive Interpretation in Law (Sari Bashi trans, Princeton University Press, 2005).CrossRefGoogle Scholar

58 Zines, The High Court and the Constitution, above n 4, 618.

59 Ibid 618–28.

60 One way of understanding the difference might thus be as equivalent to the difference between the decision of the High Court in ACTV and Lange: both endorsed the notion of the Court enforcing certain implied constitutional principles in order to protect individual rights, either directly or indirectly, and the importance of political communication in a democratic system. But Lange also attempted to ground the relevant underlying constitutional values (ie representative government) more closely in the text and structure of the Australian Constitution, as opposed to in notions of democratic self-government more generally. In practice, Zines himself also generally endorsed the former (more functionalist) over the latter (more policy-oriented) approach: see Zines, The High Court and the Constitution, above n 4, 523–48, 553–9.

61 Gerangelos, ‘Interpretational Methodology in Separation of Powers Jurisprudence’, above n 1 ; Stellios, The Federal Judicature, above n 1; Welsh, above n 1.

62 Gerangelos, ‘Interpretational Methodology in Separation of Powers Jurisprudence’, above n 1, 7–14. He also notes that there may be important differences in this context between core and non-core judicial and legislative functions, and that there may be differences across different institutional contexts in our ability reliably to identify actual ‘core’ functions.

63 Stellios, The Federal Judicature, above n 1, 119–20; Appleby, ‘Imperfection and Inconvenience’, above n 1.

64 Stellios, James, ‘Reconceiving the Separation of Judicial Power’ (2011) 22 Public Law Review 113.Google Scholar

65 Appleby, Gabrielle and Olijnyk, Anna, ‘The Impact of Uncertain Constitutional Norms on Government Policy: Tribunal Design After Kirk’ (2015) 26 Public Law Review 91.Google Scholar

66 Appleby, ‘The High Court and Kable’, above n 50; Lim, above n 1.

67 Welsh, above n 1, 70, 78.

68 Winterton, above n 3.

69 Stellios, The Federal Judicature, above n 1.

70 Simpson, above n 3.

71 Stephenson, Scott, ‘Federalism and Rights Deliberation’ (2014) 38 Melbourne University Law Review 709.Google Scholar

72 Lim, above n 1.

73 On the distinction, see Zines, The High Court and the Constitution, above n 4. On the arguments of key scholars, see, eg, Greene, Jamal, ‘The Rule of Law as a Law of Standards’ (2011) 99 Georgetown Law Journal 1289Google Scholar; Schlag, Pierre J, ‘Rules and Standards’ (1985) 33 University of California, Los Angeles Law Review 379Google Scholar; Frederick Schauer, ‘The Convergence of Rules and Standards’ [2003] New Zealand Law Review 303.

74 Scalia, Antonin, ‘The Rule of Law as a Law of Rules’ (1989) 56 University of Chicago Law Review 1175CrossRefGoogle Scholar; Sullivan, Kathleen M, ‘The Supreme Court 1991 Term — Foreword: The Justices of Rules and Standards’ (1992) 106 Harvard Law Review 22, 121.CrossRefGoogle Scholar

75 Sullivan, above n 74.

76 Dixon, Rosalind, ‘Updating Constitutional Rules’ (2009) 8 Supreme Court Review 319.CrossRefGoogle Scholar

77 Sullivan, above n 74.

78 For example, while the distinction between rules and standards lies at the heart of the disagreement about Chapter III and the Boilermakers principle between scholars such as Stellios, Appleby, Ananian-Welsh and Gerangelos, these scholars all share a concern for underlying functionalist arguments: see Gerangelos, ‘Interpretational Methodology in Separation of Powers Jurisprudence’, above n 1; Welsh, above n 1.

79 Eskridge, above n 24. Cf Zines, The High Court and the Constitution, above n 4, 610.

80 See, eg, Tasmanian Dam Case (1983) 158 CLR 1 (holding that the Commonwealth enjoys power to implement any bona fide international treaty, and not simply treaties that can be identified as on a topic of international significance, or concern, on the basis of a mix of formalist and pragmatic or functionalist reasoning), as discussed in Rosalind Dixon, Nesha Balasubramanian and Melissa Vogt, ‘Treaty Implementation in Canada: A Comparative Perspective on the Dam Case’ in Tasmanian Dam Case: 30th Anniversary (forthcoming). See also Fuller, Lon, ‘Consideration and Form’ (1941) 41 Columbia Law Review 799CrossRefGoogle Scholar (defending the formal doctrine of consideration in contract law by reference to inherently functionalist ends).

81 See, eg, New South Wales v Commonwealth (2006) 229 CLR 1 (‘Work Choices’) (adopting a relatively standard-like ‘business activities, functions and relationships’ test, rather than activities or object of command test, under the corporations power, for largely formalist rather than functionalist reasons).

82 A good example is arguably the Tasmanian Dam Case (1983) 158 CLR 1, and its endorsement of the bona fide treaty test (a clear rule), in part informed by pragmatic, functional concerns about the effectiveness of Australia on the international plane: see discussion in Dixon, Balasubramanian and Vogt, above n 80.

83 Mason, above n 42.

84 Williams v Commonwealth (2012) 248 CLR 156 (‘Williams I’).

85 See Williams II (2014) 252 CLR 416, demonstrating only three years after Williams I, there was a clear ‘new’ settled understanding of the scope of Commonwealth executive power in routine cases or contexts. Similarly, in the context of the implied freedom of political communication, there was a significant period of instability or change between the Court's decisions in ACTV and Lange, but that period was ultimately quite short in the overall scheme of constitutional developments.

86 See, eg, Zines, The High Court and the Constitution, above n 4, 644–58.

87 See, eg, Acts Interpretation Act 1901 (Cth) s 15AB(1); Interpretation Act 1987 (NSW) s 34(1); Acts Interpretation Act 1954 (Qld) s 14B(1); Interpretation Act 1984 (WA) s 19(1); Acts Interpretation Act 1931 (Tas) s 8B; Interpretation Act 1978 (NT) s 62B; Interpretation of Legislation Act 1984 (Vic) s 35(b). There is no equivalent provision in the Acts Interpretation Act 1915 (SA).

88 Mistretta 488 US 361 (1989).

89 See, eg, Tajjour (2014) 313 ALR 221, 227–9 [9]–[10] (French CJ), (referring to laws in other states and internationally); Betfair Pty Ltd v Racing New South Wales (2012) 249 CLR 217 (considering the Tasmanian model of exchange licensing as a potential regulatory alternative, in assessing the validity of a total prohibition in Western Australia).

90 Evidence of this kind could also clearly be adduced in most constitutional matters, without undue cost or unreasonable inconvenience to parties, or undermining a commitment to the resolution of civil disputes in a manner that is ‘just, quick and cheap’: Civil Procedure Act 2005 (NSW) s 56(1). Part of the argument for a functional approach is that consideration of such questions is necessary for the just resolution of the dispute, and, if appropriately cabined, such an evidentiary enquiry need not be unduly expensive or time-consuming.

91 High Court Rules 2004 (Cth) r 27.08.

92 Ibid r 27.07; see Richardson, James (ed), Archbold: Criminal Pleading, Evidence and Practice 2015 (Sweet and Maxwell, 63rd ed, 2015)Google Scholar; see, eg, Melbourne Corporation v Commonwealth (1947) 74 CLR 31; Victoria v Commonwealth (1957) 99 CLR 575 (‘Second Uniform Tax Case’); A-G (Vic) v Commonwealth (1962) 107 CLR 529 (‘Marriage Act Case’); Victoria v Commonwealth (1971) 122 CLR 353 (‘Payroll Tax Case’); Victoria v Commonwealth (1975) 134 CLR 338 (‘Australian Assistance Plan Case’).

93 (2006) 229 CLR 1, 252 [628].

94 See, eg, High Court Rules 2004 (Cth) r 27.08.5 (providing that the Court may draw ‘any inference’ as to fact or law, which might have been drawn had relevant facts been proven at trial). There has certainly been some attempt by parties in recent cases before the Court to include information of this kind in the special case filed; and even, in some cases, to include certain disputed claims of fact, in the form of a claim as to what the respective parties claimed or contended. In approving the special case, the Court has also raised no explicit objection to this practice. See eg Unions NSW v New South Wales (2013) 252 CLR 530, 531, 573 [117], 574 [120] (Keane J).

95 See Johnson, John W, ‘Brandeis Brief’ in Hall, Kermit L, Ely, James W and Grossman, Joel B (eds), The Oxford Companion to the Supreme Court of the United States (Oxford University Press, 2005) 100Google Scholar; Margolis, Ellie, ‘Beyond Brandeis: Exploring the Uses of Non-legal Materials in Appellate Briefs’ (2000) 34 University of San Francisco Law Review 197Google Scholar; Simpson, Reagan William and Vasaly, Mary R, The Amicus Brief: How to Be a Good Friend of the Court (American Bar Association, 2nd ed, 2004) 44.Google Scholar

96 Schweitzer, Dan, ‘Fundamentals of Preparing a United States Supreme Court Amicus Brief’ (2003) 5 Journal of Appellate Practice and Process 523, 531–2.Google Scholar

97 See, eg, Acts Interpretation Act 1901 (Cth) s 15A; Bank of New South Wales v Commonwealth (1948) 76 CLR 1, 371 (‘Bank Nationalisation Case); Cam & Sons Pty Ltd v Chief Secretary of New South Wales (1951) 84 CLR 442; R v Poole; Ex parte Henry [No 2] (1939) 61 CLR 634; Tajjour (2014) 313 ALR 221, 264–9 (Hayne J). The only exception may be where the plaintiff raises an issue as to the efficacy of an alternative regulatory regime, and the Solicitor-General for the Commonwealth or the state makes no attempt to dispute the efficacy of such a regime. In this instance, it may be that by putting a question in issue, the plaintiff has done all that is necessary to discharge their burden of persuasion.

98 (1996) 189 CLR 51 (‘Kable’).

99 (2014) 253 CLR 629 (‘Pollentine’).

100 CLA s 18(3).

101 Pollentine (2014) 253 CLR 629, 651 [52] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

102 Ibid 643–4 [21]–[22] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ), citing Fardon v A-G (Qld) (2004) 223 CLR 575, 608 [62] (Gummow J) (‘Fardon’); Morris, Norval, The Habitual Criminal (Harvard University Press, 1951) 22Google Scholar; SirRadzinowicz, Leon, ‘The Persistent Offender’ in SirRadzinowicz, Leon and Turner, J W C (eds), The Modern Approach to Criminal Law (Macmillan, 1945) 162, 167.Google Scholar

103 (2014) 314 ALR 528 (‘Kuczborski’).

104 See, eg, South Australia v Totani (2010) 242 CLR 1 (‘Totani’).

105 Kuczborski (2014) 314 ALR 528, 578 [224] (Crennan, Kiefel, Gageler and Keane JJ).

106 Emmerson (2014) 253 CLR 393.

107 Criminal Property Forfeiture Act (NT) s 94(1).

108 Section 36A(3). Such orders could also be set aside only on limited grounds, and once a conviction for a third offence became final, would also automatically lead to relevant property being forfeited to the Territory.

109 Emmerson (2014) 253 CLR 393, 429–30 [52]–[53] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

110 Ibid 433 [65] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

111 Ibid.

112 488 US 361, 407 (Blackburn J) (1989). See above n 5.

113 Pollentine (2014) 253 CLR 629, 651 [49] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

114 Kuczborski (2014) 314 ALR 528, 579 [228]–[231] (Crennan, Kiefel, Gageler and Keane JJ), 557 [110] (Hayne J).

115 Emmerson (2014) 253 CLR 393, 425–6 [41]–[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

116 Ibid 430 [56], 434 [69] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

117 Zines, The High Court and the Constitution, above n 4, 628.

118 Rubin, Cf Donald B, ‘Estimating Causal Effects of Treatments in Randomized and Nonrandomized Studies’ (1974) 66 Journal of Educational Psychology 688CrossRefGoogle Scholar; Lewis, David, Counterfactuals (Blackwell, 1973)Google Scholar; Pearl, J, ‘Causation, Action and Counterfactuals’ in Shoham, Yoav (ed), Proceedings of the Sixth Conference on Theoretical Aspects of Rationality and Knowledge (Morgan Kaufman, 1996) 51Google Scholar; Guo, Shenyang and Fraser, Mark W, Propensity Score Analysis: Statistical Methods and Applications (SAGE Publications, 2015) ch 2.Google Scholar

119 Cf Jeremy Gans, ‘Current Experiments in Australian Constitutional Criminal Law’ (Paper presented at Australian Association of Criminal Law, Federal Court of Australia, Sydney, 9 September 2014) (noting the differential focus of the doctrine in criminal compared to non-criminal matters).

120 See, eg, the current ‘law and order’ politics in Australia in relation to issues such as terrorism, organised crime, and the treatment of sexual offenders: Appleby, ‘The High Court and Kable’, above n 50; Appleby, Gabrielle J and Williams, John M, ‘A New Coat of Paint: Law and Order and the Refurbishment of Kable’ (2012) 40 Federal Law Review 1CrossRefGoogle Scholar; Guy, Scott, ‘The Constitutionality of the Queensland Criminal Organisation Act: Kable, Procedural Due Process and State Constitutionalism’ (2013) 32 University of Queensland Law Journal 265Google Scholar; McGarrity, Nicola, ‘From Terrorism to Bikies: Control Orders in Australia’ (2012) 37 Alternative Law Journal 166.CrossRefGoogle Scholar

121 Pollentine (2014) 253 CLR 629, 639 [5], 645 [28] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

122 Kuczborski (2014) 314 ALR 528, 579 [230] (Crennan, Kiefel, Gageler and Keane JJ).

123 Traditionally at common law, the doctrine of felony forfeiture meant that a person convicted of an indictable offence was automatically liable to general forfeiture of their property. While the doctrine was abolished by statute in the 19th century, State Parliaments in Australia have also continued over the course of the 20th century to enact a variety of criminal forfeiture legislation giving varying degrees of supervision, and discretion, to state courts.

124 Emmerson (2014) 253 CLR 393, 434 [68] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

125 See, eg, Totani (2010) 242 CLR 1. It should be noted that the Justices disagreed as to just how narrow the discretion was.

126 Tajjour (2014) 313 ALR 221.

127 Minister of State for the Army v Dalziel (1944) 68 CLR 261.

128 Bank Nationalisation Case (1948) 76 CLR 1, 349 (Dixon J); ibid 290 (Starke J); Dorman v Rodgers (1982) 148 CLR 365, [4] (Murphy J).

129 Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397; Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480.

130 See, eg, Evans, Simon, ‘When is an Acquisition of Property Not An Acquisition of Property?: The Search for a Principled Approach to Section 51(xxxi)’ (2011) 11 Public Law Review 183Google Scholar; Dixon, Rosalind, ‘Overriding Guarantee of Just Terms or Supplementary Source of Power?: Rethinking s51(xxi) of the Constitution’ (2005) 27 Sydney Law Review 639.Google Scholar

131 Evans, ‘When is an Acquisition of Property Not An Acquisition of Property?’, above n 130, 184.

132 Emmerson (2014) 253 CLR 393, 438 [81], [84] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

133 Ibid 446 [110].

134 Dixon, ‘Overriding Guarantee of Just Terms or Supplementary Source of Power?’, above n 130.

135 Emmerson (2014) 253 CLR 393, 446 [109].

136 See, eg, Burton v Honan (1952) 86 CLR 169; Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133; Federal Commissioner of Taxation v Clyne (1958) 100 CLR 246.

137 See, eg, A-G (Cth) v Schmidt (1961) 105 CLR 361, 372–3 (Dixon CJ); Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397, 408 (Barwick CJ).

138 See, eg, Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297, 305–6 (Mason CJ, Deane and Gaudron JJ) (‘Georgiadis’); Health Insurance Commission v Peverill (1994) 179 CLR 226, 237 (Mason CJ, Deane and Gaudron JJ) (‘Peverill’).

139 See Rosalind Dixon, ‘An Australian (Partial) Bill of Rights’ (Unpublished manuscript, on file with author, 2015).

140 See, eg, Georgiadis (1994) 179 CLR 297, 305–6 (Mason CJ, Deane and Gaudron JJ); Peverill (1994) 179 CLR 226, 237 (Mason CJ, Deane and Gaudron JJ).

141 See, eg, Evans, ‘When is an Acquisition of Property Not An Acquisition of Property?’, above n 130, for general criticisms along these lines of the High Court's approach in this area.

142 See, eg, A-G (NT) v Chaffey (2007) 231 CLR 651; Commonwealth v WMC Resources Ltd (1998) 194 CLR 1.

143 See, eg, Telstra Corporation Ltd v Commonwealth (2008) 234 CLR 210.

144 See, eg, Peverill (1994) 179 CLR 226.

145 This is potentially one reason why the High Court has treated statutory rights that replace equivalent common law rights as in a different category: see, eg, Georgiadis (1994) 179 CLR 297, 305–6 (Mason CJ, Deane and Gaudron JJ); Wurridjal v Commonwealth (2009) 252 ALR 232, 325–6 [364] (Crennan J).

146 Emmerson (2014) 253 CLR 393, 451–2 [132].

147 Posner, Richard A, ‘An Economic Theory of the Criminal Law’ (1985) 85 Columbia Law Review 1193.CrossRefGoogle Scholar

148 Cf Zines, The High Court and the Constitution, above n 4, 639, noting that in some cases the failure to engage with values-based arguments will not only obscure the nature of judicial reasoning, but an actual absence of persuasive reasoning.

149 See, eg, Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; ACTV (1992) 177 CLR 106; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; Theophanous v Commonwealth (2006) 225 CLR 101; Lange (1997) 189 CLR 520.

150 See Tushnet, Mark, Taking the Constitution Away from the Courts (Princeton University Press, 1999)Google Scholar; Sadurski, Wojciech, ‘Judicial Review and the Protection of Constitutional Rights’ (2002) 22 Oxford Journal of Legal Studies 275.CrossRefGoogle Scholar

151 Gageler, ‘Beyond the Text’, above n 15.

152 See, eg, Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press, 1980)Google Scholar, and the adaptation of this approach to Australia by Gageler J: Gageler, Stephen, ‘Foundations of Australian Federalism and the Role of Judicial Review’ (1987) 17 Federal Law Review 162CrossRefGoogle Scholar; Gageler,‘Beyond the Text ‘, above n 15.

153 See, eg, Hogg, Peter W and Bushell, Allison A, ‘The Charter Dialogue between Courts and Legislatures (Or Perhaps the Charter of Rights Isn't Such a Bad Thing after All)’ (1997) 35 Osgoode Hall Law Journal 75CrossRefGoogle Scholar; Roach, Kent, ‘Constitutional and Common Law Dialogues Between the Supreme Court and Canadian Legislatures’ (2001) 80 Canadian Bar Review 481Google Scholar; Dixon, Rosalind, ‘The Supreme Court of Canada, Charter Dialogue and Deference’ (2009) 47 Osgoode Hall Law Journal 235.CrossRefGoogle Scholar In Australia, see also Dixon, Rosalind, ‘A Minimalist Charter of Rights for Australia: The UK or Canada as a Model?’ (2009) 37 Federal Law Review 335.CrossRefGoogle Scholar

154 For a useful beginning of such an account in Australia, see, eg, Gageler, ‘Beyond the Text’ above n 15; Gageler, ‘Foundations of Australian Federalism and the Role of Judicial Review’, above n 152.

155 McCloy v NSW (2015) 89 ALJR 857, 875–7 [79]-[87] (French CJ, Kiefel, Bell and Keane JJ) (setting out a test of proportionality, or suitability, necessity and adequate in its balance), but see also dissent by Gageler J (suggesting that endorsement of a proportionality-based test might imply a greater shift in the substantive approach in this context): at 885–8 [138]-[155].

156 Tajjour (2014) 313 ALR 221, Keane J dissenting (finding that, properly construed, the law did not impose such a burden).

157 See, eg, Tajjour (2014) 313 ALR 221, 237–41 [35]–[48] (French CJ), 253 [110] (Crennan, Kiefel and Bell JJ) 256–7 [128]–[133] (Gageler J), 260–1 [149]–[150] (Gageler J). See also Kirk, Jeremy, ‘Constitutional Guarantees, Characterisation and the Concept of Proportionality’ (1997) 21 Melbourne University Law Review 1Google Scholar; Fitzgerald, Brian F, ‘Proportionality and Australian Constitutionalism’ (1993) 12 University of Tasmania Law Review 263Google Scholar; Appleby, Gabrielle, ‘Proportionality and Federalism: Can Australia Learn from the European Community, the US and Canada?’ (2007) 26 University of Tasmania Law Review 1.Google Scholar

158 On strict scrutiny in this context, see, eg, Tribe, Laurence, American Constitutional Law (Foundation Press, 1978)Google Scholar; Fallon, Richard H Jr, The Dynamic Constitution: An Introduction to American Constitutional Law (Cambridge University Press, 2004).CrossRefGoogle Scholar

159 See, eg, Hiebert, Janet, Limiting Rights: The Dilemma of Judicial Review (McGill-Queen's University Press, 1996) ch 1-3.CrossRefGoogle Scholar

160 His Honour held that it was not possible to say that a law which ‘proceeded from a different premise (that the occasion of consorting can be excused according to what was said or done or to why it was said or done) would further the prevention of crime to the same extent’ as the law under challenge: Tajjour (2014) 313 ALR 221, 250 [90].

161 Ibid 256 [125].

162 Ibid 262–3 [156]–[159].

163 Ibid 255 [121].

164 Ibid 264 [166].

165 Ibid.

166 See, eg, Tajjour and Hawthorne, ‘Plaintiff's Written Submissions’, Submission in Tajjour, S36/2014, 28 March 2014, 8 [5.24]; Australian Human Rights Commission, ‘Proposed Submissions of the Australian Human Rights Commission Seeking Leave to Intervene’, Submission in Tajjour, S36/2014, 10 April 2014, 13–14 [49]–[54]; New South Wales, ‘Annotated Submissions of the State of New South Wales’, Submission in Tajjour, S36/2014, 14 April 2014, 11–12 [40], 14 [50]; Victoria, ‘Submissions of the Attorney-General for the State of Victoria (Intervening)’, Submission in Tajjour, S36/2014, 28 April 2014, 9–10 [24]; Western Australia, ‘Written Submissions for the Attorney-General for Western Australia (Intervening)’, Submission in Tajjour, S36/2014, 28 April 2014, 8–9 [40]–[48].

167 See also CPCF v Minister for Immigration and Border Protection (2015) 316 ALR 1 on the scope of s 61 of the Constitution (heard in 2014, and decided in 2015).

168 (2014) 252 CLR 416.

169 (2012) 248 CLR 156.

170 For discussion, see, eg, Chordia, Shipra, Lynch, Andrew and Williams, George, ‘Williams v Commonwealth: Commonwealth Executive Power and Australian Federalism’ (2013) 37 Melbourne University Law Review 189Google Scholar; Gerangelos, Peter, ‘The Executive Power of the Commonwealth of Australia: Section 61 of the Commonwealth Constitution, “Nationhood” and the Future of the Prerogative’ (2012) 12 Oxford University Commonwealth Law Journal 97CrossRefGoogle Scholar; Saunders, Cheryl, ‘The Sources and Scope of Commonwealth Power to Spend’ (2009) 20 Public Law Review 256Google Scholar; Appleby, Gabrielle and McDonald, Stephen, ‘Looking at the Executive Power through the High Court's New Spectacles’ (2013) 35 Sydney Law Review 253.Google Scholar

171 The parties also raised a number of other arguments, including the argument that Williams I should be revisited, but these were ultimately rejected by the Court, as misplaced or not necessary to decide.

172 Williams II (2014) 252 CLR 416, 458 [42] (French CJ, Hayne, Kiefel, Bell and Keane JJ).

173 Ibid 476 [110] (French CJ, Hayne, Kiefel, Bell and Keane JJ).

174 (1949) 79 CLR 201 (‘BMA Case’).

175 (1987) 162 CLR 271 (‘Alexandra Hospital Case’).

176 Williams II (2014) 252 CLR 416, 459–60 [44]–[47] (French CJ, Hayne, Kiefel, Bell and Keane JJ).

177 See Simon Evans, ‘Williams [No 2] Symposium: Simon Evans on Benefits to Students’ on Melbourne Law School, Opinions on High: High Court Blog (23 June 2014) <http://blogs.unimelb.edu.au/opinionsonhigh/2014/06/23/evans-williams/>.

178 See, eg, a range of important policies in place in New South Wales state primary schools: the ‘bounce back’, ‘digital citizenship’ and ‘harmony day’ programs, all of which are designed to manage the potential for bullying in a school environment, but also equip students with skills that can help them progress and develop as individuals, beyond the school context: NSW Department of Education, <http://www.dec.nsw.gov.au/>; Department of Social Services (Cth), Harmony Day, <http://www.harmony.gov.au/>.

179 Evans notes that it might be possible to adapt a divisibility requirement to an educational setting, by requiring that these collective, or fixed, costs be averaged out over the existing student body, or be costed or priced on a per student basis: Evans, ‘Williams [No 2] Symposium’, above n 177. But if divisibility is linked to the notion that there must be an identifiable existing student population, the requirement seems wholly unsuited to an educational context: it could mean that governments would have power to fund short-term projects, benefiting already enrolled students, but not longer-term, capital projects designed to benefit students in the future.

180 (1908) 6 CLR 309.

181 Williams II (2014) 252 CLR 416, 462.

182 It is worth noting that a historical approach might, or might not, support universal schemes in this context: see, eg, SirBeveridge, William, Social Insurance and Allied Serves: Report (His Majesty's Stationery Office, London, 1942)Google Scholar (a leading welfare state proponent, making arguments for ‘universality’ in access to welfare state benefits).

183 Chemerinsky, Erwin, ‘The Values of Federalism’ (1995) 47 Florida Law Review 499, 538.Google Scholar

184 Shapiro, David, Federalism: A Dialogue (Northwestern University Press, 1995) 91–2.Google Scholar

185 Andrzej Rapaczynski, ‘From Sovereignty to Process: The Jurisprudence of Federalism After Garcia’ [1985] Supreme Court Review 341, 380–95, cited in Chemerinsky, ‘The Values of Federalism’, above n 183, 525.

186 New State Ice Co v Liebmann, 285 US 262, 311 (Brandies J) (1932) (arguing that one of the key advantages to federalism is that under it ‘a single courageous state may, if it citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country’).

187 Chemerinsky, ‘The Value of Federalism’, above n 183, 536. See also Hills, Roderick M Jr, ‘Is Federalism Good for Localism? The Localist Case for Federalist Regimes’ (2005) 221 Journal of Law and Politics 187Google Scholar; Hills, Roderick M Jr, ‘Federalism and Public Choice’ in Farber, Daniel A and O’Connell, Anne Joseph (eds), Research Handbook on Public Choice and Public Law (Edward Elgar, 2010) ch 6.Google Scholar

188 See, eg, Gageler, ‘Beyond the Text’, above n 15.

189 See Aroney, Nicholas, Prasser, Scott and Taylor, Alison, ‘Federal Diversity in Australia: A Counter-Narrative’ in Appleby, Gabrielle, Aroney, Nicholas and John, Thomas (eds), The Future of Australian Federalism: Comparative and Interdisciplinary Perspectives (Cambridge University Press, 2012) 272.Google Scholar

190 See, eg, Paul Kildea, ‘The Referendum was Coming: Lessons from the Local Government Referendum that Wasn’t’ (Paper presented at the 3rd Biennial Electoral Regulation Workshop, University of Queensland, Brisbane, 31 October–1 November 2013).

191 See, eg, Lim, above n 1.

192 Although some experiments of this kind existed prior to the national scheme, the Commonwealth program itself ultimately limited scope for experiment by imposing conditions on the religious/secular nature of workers: ‘School Chaplain Plan Unveiled’, The Age (online), 29 October 2006 <http://www.theage.com.au/news/national/school-chaplain-plan-unveiled/2006/10/29/1162056858561.html>; John Stewart, ‘Non-religious Chaplains May Not Be Funded under New Chaplaincy Program in 2015’, ABC News (online), 3 December 2014 <http://www.abc.net.au/news/2014-12-02/non-religious-chaplains-may-not-be-funded-under-new-programme/5935450>. By contrast, the Rudd–Gillard Government gave schools the choice of religious or secular staff to work as school chaplains.

193 Under the Education Act 1990 (NSW), public schools are to provide ‘meaningful activities’ for students who are not attending special religious education, which can include special education in ethics: NSW Department of Education and Communities, Special Education in Ethics Policy (1 June 2013) <https://www.det.nsw.edu.au/policies/curriculum/schools/ethics/PD20130436.shtml>. This experiment with ethics education is clearly understood by both its proponents and many school principals as an attempt to create a clearer demarcation between religion and secular educational values in state primary schools in NSW. See Primary Ethics <http://www.primaryethics.com.au>.

194 The potential logic of experimentation, for instance, might imply that the scope of power under s 51 could vary over time, depending on the degree of active experimentation in particular policy areas at a state level, or the relationship between Commonwealth legislation and the results of past state-level legislative experiments. Cf Andrews v Howell (1941) 65 CLR 255 (and the idea that the power ‘waxes and wanes’ according to background political conditions).

195 See, eg, Kreit, Alex, ‘Making Sense of Facial and As-Applied Challenges’ (2010) 18 William and Mary Bill of Rights Journal 657;Google Scholar Dorf, Michael C, ‘Facial Challenges to State and Federal Statutes’ (1994) 46 Stanford Law Review 235CrossRefGoogle Scholar; Metzger, Gillian E, ‘Facial and As-Applied Challenges under the Roberts Court’ (2008) 36 Fordham Urban Law Journal 773.Google Scholar

196 On these exceptions, see, eg, Chordia, Lynch and Williams, above n 170; Gerangelos, ‘The Executive Power of the Commonwealth of Australia’, above n 170; Saunders, above n 170; Appleby and McDonald, above n 170.

197 Williams I (2012) 248 CLR 156, 202–6 [55]–[61] (French CJ), 232–3 [136] (Gummow and Bell JJ), 349–55 [508]–[534] (Crennan J).

198 Williams II (2014) 252 CLR 416 [57]–[87].

199 See, eg, Gageler, Stephen, ‘The High Court on Constitutional Law: The 2001 Term’ (2002) 25 University of New South Wales Law Journal 194Google Scholar; 2015 Constitutional Law Conference and Dinner, Gilbert + Tobin Centre of Public Law <http://www.gtcentre.unsw.edu.au/events/2015-constitutional-law-conference-and-dinner>.

200 While the sample size is extremely small, it might in this sense be seen to approximate the ideal of ‘randomness’ in case-selection in more social-scientific approaches.

201 Two good examples include the relationship between functionalism and s 80 of the Constitution: see, eg, Stellios, ‘Reconceiving the Separation of Judicial Power’, above n 64; Rosalind Dixon, ‘An Australian (Partial) Bill of Rights’, above n 139; and the scope of executive power under s 61 of the Constitution, and its relationship to issues of express and implied legislative repeal, confirmation or abrogation: see, eg, CPCF v Minister for Immigration and Border Protection (2015) 316 ALR 1, 37–40 [141]–[151] (Hayne and Bell JJ), 54–66 [227-]–[286] (Kiefel J), 100–4 [476]–[495] (Keane J); cf Youngstown Sheet & Tube Co v Sawyer 343 US 579, 634 (Jackson J) (1952).