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Published online by Cambridge University Press: 01 January 2025
The well-known Kable decision, and the line of authorities to which it has given rise, derives a doctrine of the integrity of state courts from Ch III of the Australian Constitution. The basis for this doctrine, however, as well as its meaning and extent, remains contentious. This article articulates a coherent basis for the Kable doctrine, which both reveals it to rest on a genuine implication arising from the text of Ch III and contributes to an understanding of the content of the doctrine. The method that the article adopts to achieve a rigorous grounding of the Kable doctrine is predominantly theoretical, combining three philosophical approaches: a speech-act analysis of the relevant constitutional provisions, the semantic externalist theory of reference developed by Putnam and Kripke and a sociological understanding of institutions (including legal institutions) along the lines developed by Selznick. As the Kable doctrine is one of the fundamental components of contemporary Australian public law, showing that it is not merely a product of judicial invention in pursuit of desirable policy, but rather is genuinely grounded in the text of the Constitution, is important for establishing not only the legitimacy of the doctrine itself but the legitimacy of that larger body of law.
A first draft of this article was presented at a conference on Judicial Independence in Australia: Contemporary Challenges, Future Directions held at the University Queensland, July 2015. I am grateful to participants at the conference, and in particular Rebecca Ananian-Welsh, Jonathan Crowe and Fiona Wheeler, for their comments. I am also grateful to Lisa Burton Crawford, Jeffrey Goldsworthy, Tria Gkouvas, Julian Sempill, Lawrence Solum, Dale Smith and David Tan for reading earlier drafts and providing helpful comments and fruitful discussion. And I am indebted to Jeffrey Goldsworthy and Martin Krygier for discussions of the ideas and methodological approaches that have enabled me to write this article.
1. (1996) 189 CLR 51 (‘Kable’).
2. For criticism of Kable, see eg, Richard Ackland, ‘Rights and Wrongs of Separation of Powers’ The Sydney Morning Herald (Sydney, 4 December 2009) 23; Sir Anthony Mason, ‘The Australian Constitution in Retrospect and Prospect’ in Geoffrey Lindell (ed), The Mason Papers: Selected Articles and Speeches by Sir Anthony Mason AC, KBE (Federation Press, 2007) 144, 157–8; Geoffrey Lindell, ‘The Australian Constitution: Growth, Adaptation and Conflict—Reflections About Some Major Cases and Events’ (1999) 25(2) Monash University Law Review 257, 277 (describing the reasoning as ‘imaginative and strained’); George Williams, Human Rights Under the Australian Constitution (Oxford University Press, 1999) 243 (describing the decision as having ‘the appearance of being contrived’); Dan Meagher, ‘Should the Victorian Constitution be Reformed to Strengthen the Separation of Judicial Power?’ (2000) 2(4) Constitutional Law and Policy Review 63, 69 (describing the decision as ‘represent[ing] a leap in legal logic that should be rejected’); George Winterton, ‘Justice Kirby’s Coda in Durham’ (2002) 13(3) Public Law Review 165, 168 (describing the reasoning as ‘barely plausible’); George Winterton, ‘Introduction: Australian States: Cinderellas No Longer?’ in George Winterton (ed), State Constitutional Landmarks (Federation Press, 2006) 1, 14 (referring to ‘an unconvincing implication’); Anne Twomey, The Constitution of New South Wales (Federation Press, 2004) 194 (describing the decision as ‘unsatisfactory’); Greg Taylor, The Constitution of Victoria (Federation Press, 2006) 456 (suggesting that the decision itself ‘breach[es] the doctrine of separation of powers by invalidating laws on the basis that [the majority of the Court] do not like them’); Jeffrey Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’ (2014) 40(1) Monash University Law Review 75. For discussion of these criticisms, see Patrick Emerton and Jeffrey Goldsworthy, ‘The Brennan Court’ in Rosalind Dixon and George Williams (eds), The High Court, the Constitution and Australian Politics (Cambridge University Press, 2015) 261, 276–8.
3. (2010) 239 CLR 531 (‘Kirk’).
4. For particularly trenchant criticism of Kirk, see Oscar I Roos, ‘Accepted Doctrine at the Time of Federation and Kirk v Industrial Court of New South Wales’ (2013) 35(4) Sydney Law Review 781; Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’ (n 2).
5. James Stellios, Zines’s The High Court and the Constitution (The Federation Press, 6th ed, 2015) 276.
6. See the discussion ibid 278–80. In Kable itself, the Court (by majority) struck down legislation which rendered a particular named individual (Gregory Wayne Kable) liable to post-sentence detention by order of the Supreme Court of New South Wales, on an application made by the Director of Public Prosecutions of that state, if the court was ‘satisfied on reasonable grounds that [Kable] was more likely than not to commit a serious act of violence and that it was appropriate for the protection of the community that he be held in custody’: ibid 276. The principal reason for the legislation’s invalidity was that ‘[i]n exercising the conferred powers…the court had the appearance of being an instrument of the government’: ibid 277.
7. Goldsworthy claims that his moderate originalist methodology is consistent with the orthodox approach to Australian constitutional law: Jeffrey Goldsworthy, ‘Originalism in Constitutional Interpretation’ (1997) 25(1) Federal Law Review 1, 1. As this article shows, this claim is not correct: moderate originalism cannot adequately explain the derivation and application of the full range of Ch III implications. Goldsworthy has also argued that an author’s words generally cannot give rise to an implication that is contrary to that author’s intention, stating that ‘utterances of people well-known not to intend something should be interpreted to imply that they did intend it only as a last resort, if there is no other way of making sense of their utterance’: Jeffrey Goldsworthy, ‘Implications in Language, Law and the Constitution’ in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (Federation Press, 1994) 150, 182. In a later essay, Goldsworthy has suggested that this remark does not preclude unintended reference by the authors of legal texts: ‘Constitutional Implications Revisited’ (2011) 30(1) University of Queensland Law Journal 9, 15–18. Nevertheless at the core of his moderate originalism is an appeal to speakers’ intentions: Goldsworthy, ‘Originalism in Constitutional Interpretation’ (n 7) 8; Goldsworthy, ‘Constitutional Implications Revisited’ (n 7) 15, 19, where Goldsworthy says that ‘ellipses and presuppositions are difficult if not impossible to explain except in terms of original intention or purpose’ and that ‘a genuine implication depends on evidence that the author or speaker had a certain communicative intention’. This article will show that a genuine textual implication, including one grounded in a presupposition, can arise even when the author did not have any salient intention in respect of it.
8. See, eg, Goldsworthy, ‘Implications in Language, Law and the Constitution’ (n 7); Scott Soames, ‘Interpreting Legal Texts: What is, and What is not, Special about the Law’ in Philosophical Papers, Volume 1: Natural Language: What It Means and How We Use It (Princeton University Press, 2008) 403; Andrei Marmor, The Language of Law (Oxford University Press, 2014).
9. See, eg, Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 141–2, 144–6, 152 (Knox CJ, Isaacs, Rich and Starke JJ); Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 566–7.
10. Hilary Putnam, ‘Dreaming and “Depth Grammar”’ in R J Butler (ed), Analytical Philosophy (Basil Blackwell, 1962) 211, 218–21; Hilary Putnam, ‘The Meaning of “Meaning”’ in Mind, Language and Reality: Philosophical Papers, Volume 2 (Cambridge University Press, 1975) 215; Saul Kripke, Naming and Necessity (Basil Blackwell, 1980).
11. For a recent, and excellent, treatment of Selznick’s work see Martin Krygier, Philip Selznick: Ideals in the World (Stanford University Press, 2012).
12. (1998) 193 CLR 346 (‘Gould’).
13. Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’ (n 2) 91.
14. The point that the tenure provisions in s 72 are facilitative of independence is also made in Waterside Workers’ Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434, 469–70 (Isaacs and Rich JJ).
15. New South Wales v Commonwealth (1915) 20 CLR 54 (‘Wheat Case’).
16. (1956) 94 CLR 254 (‘Boilermakers’’); affirmed in A-G (Cth) v The Queen (1957) 95 CLR 529.
17. Boilermakers’ (1956) 94 CLR 254, 289 (Dixon CJ, McTiernan, Fullagar and Kitto JJ).
18. Ibid 271–2, 274–5, 288–9 (Dixon CJ, McTiernan, Fullagar and Kitto JJ). See also A-G (Cth) (1957) 95 CLR 537–8, 533–44.
19. Except for such other power as is ancillary, auxiliary or incidental to those courts’ exercise of judicial power: Boilermakers’ (1956) 94 CLR 254, 272, 278, 296 (Dixon CJ, McTiernan, Fullagar and Kitto JJ). See also A-G (Cth) (1957) 95 CLR 544.
20. Boilermakers’ (1956) 94 CLR 254, 267–8, 275–6 (Dixon CJ, McTiernan, Fullagar and Kitto JJ).
21. Ibid 268.
22. Wheat Case (1915) 20 CLR 54, 93; cited Boilermakers’ (1956) 94 CLR 254, 271 (Dixon CJ, McTiernan, Fullagar and Kitto JJ).
23. (1918) 25 CLR 434, 442 (‘Alexander’s Case’); cited in A-G (Cth) (1957) 95 CLR 539.
24. Alexander’s Case (1918) 25 CLR 434, 451; cited in A-G (Cth) (1957) 95 CLR 539.
25. For judicial statements of the constitutional prohibition upon conferring functions on a federal judge as persona designata that would be incompatible with judicial office, see Hilton v Wells (1985) 157 CLR 57, 73–4 (Gibbs CJ, Wilson and Dawson JJ), 81–2 (Mason and Deane JJ); Grollo v Palmer (1995) 184 CLR 348, 364–5 (Brennan CJ, Deane, Dawson and Toohey JJ), 375–7 (McHugh J), 389–94 (Gummow J); Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 8–18 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ), 20–3 (Gaudron J), 39–47 (Kirby J). The notion of incompatibility as a limit upon the conferral of non-judicial functions upon judges as persona designata was also mentioned, although not elaborated upon, in Boilermakers’ (1956) 94 CLR 254, 281. For a discussion of the persona designata ‘exception’ to Boilermakers’ and the incompatibility test, see Patrick Emerton and H P Lee, ‘Judges and Non-Judicial Functions in Australia’ in H P Lee (ed), Judiciaries in Comparative Perspective (Cambridge University Press, 2011) 403, 410–22.
26. Mark Greenberg, ‘The Standard Picture and Its Discontents’ in Leslie Green and Brian Leiter (eds), Oxford Studies in Philosophy of Law (Oxford University Press, 2011) vol 1, 39; Mark Greenberg, ‘Legislation as Communication? Legal Interpretation and the Study of Linguistic Communication’ in Andrei Marmor and Scott Soames (eds), Philosophical Foundations of Language and the Law (Oxford University Press, 2011) 217.
27. Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 135 (Mason CJ), quoted in Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’ (n 2) 77.
28. Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’ (n 2) 78–82.
29. Ibid 86–9.
30. Ibid 95–9, 102–3. See also Roos (n 4).
31. Goldsworthy, ‘Constitutional Implications Revisited’ (n 7) 13–14.
32. Although ss 75(iii) and 76(i) and (ii) may seem to come very close to such express statement.
33. Goldsworthy, ‘Constitutional Implications Revisited’ (n 7) 14; see also Fullagar J’s remark in the Communist Party Case that ‘in our system, the principle of Marbury v Madison is accepted as axiomatic’: Australian Communist Party v Commonwealth (1951) 83 CLR 1, 262.
34. Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’ (n 2) 91–2.
35. Greenberg argues that in order to explain how written texts give rise to legal content that they do not expressly state or entail, it is necessary to bring normative considerations to bear: Greenberg, ‘Legislation as Communication?’ (n 26) 230–3, 244–50; see also Greenberg, ‘The Standard Picture and Its Discontents’ (n 26) 76–80; Mark Greenberg, ‘How Facts Make Law’ (2004) 10(3) Legal Theory 157, 176–7. The argument of this article suggests a way of understanding how such content can arise without needing to rely upon normative considerations. This feature of the article also distinguishes its approach to law and legal interpretation from that advocated by Ronald Dworkin (eg, Ronald Dworkin, Law’s Empire (Hart, 1986)) and TRS Allan (eg, TRS Allan, The Sovereignty of Law (Oxford University Press, 2013)).
36. Marmor (n 8) 13–22, 28–34.
37. See the extensive discussion in Stephen J Barker, Renewing Meaning: A Speech-Act Theoretic Approach (Oxford University Press, 2004).
38. Marmor (n 8) 61–77.
39. Goldsworthy, ‘Implications in Language, Law and the Constitution’ (n 7) 158; Richard Ekins and Jeffrey Goldsworthy, ‘The Reality and Indispensability of Legislative Intentions’ (2014) 36(1) Sydney Law Review 39, 55–6; in both cases drawing upon an example discussed in John R Searle, ‘Literal Meaning’ in Expression and Meaning: Studies in the Theory of Speech Acts (Cambridge University Press, 1979) 127–8.
40. On the contrast between commands and stipulations, see also below n 67 and text thereto.
41. It is beyond the scope of this article to give a full account of the speech act of stipulation. For a discussion of both stipulation and the related speech act of supposition, see Barker, Renewing Meaning (n 37) 59–61, 95–9, 147–8; and for further discussion of supposition see Stephen Barker, ‘Towards a Pragmatic Theory of ‘If’ (1995) 79(2) Philosophical Studies 185; Stephen Barker, ‘Parsing If-Sentences and the Conditions of Sentencehood’ (1996) 56(4) Analysis 210, 216. For a discussion of stipulation in logical and mathematical contexts, see Laurence Goldstein, ‘To Let: Unsuccessful Stipulation, Bad Proof, and Paradox’ (2013) 50(1) American Philosophical Quarterly 93. For a discussion of stipulation that includes the naming of pets as an instance of stipulation, see Mark Textor, ‘The Use Theory of Meaning and Semantic Stipulation’ (2007) 67(1) Erkenntnis 29. The bulk of Textor’s paper is an attack upon a theory of stipulation that attempts to assimilate stipulation to assertion: 29–40, and especially 35.
42. See also Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12, s 5, which provides that ‘[t]his Act…shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State’. In the case of State Parliaments, which are the principal constitutional actors circumscribed by the Kable doctrine, their powers are also made subject to the Constitution by ss 106 and 107. Using Hart’s language, we might describe this state of affairs by saying that there was and continues to be a social rule among Australian legal officials that constitutes a rule of change, and that the rule in question acknowledges the enactments of the Imperial Parliament (at least prior to the Statute of Westminster Adoption Act 1942 (Cth) and the Australia Acts 1986 (Cth & Imp)) as a pre-eminent source of new law: HLA Hart, The Concept of Law (Clarendon Press, 2nd ed, 1994) 95–6, 98–9, 114–17.
43. Australian Constitution s 53.
44. This account of constitutional norms (and legal norms more generally) can be seen as a technical working out of Raz’s idea of statements of law being made from a ‘point of view’: Joseph Raz, ‘Legal Validity’ in The Authority of Law (Clarendon Press, 1979) 146, 156–7. Raz suggests that we lack an account of the semantics of such discourse: Joseph Raz, ‘Kelsen’s Theory of the Basic Norm’ in The Authority of Law (Clarendon Press, 1979) 122, 144–5. The analysis in terms of stipulation provides such semantics. Mark McBride offers a technical analysis of Raz’s suggestion in Mark McBride, ‘Detached Statements’ (2017) 49(147) Crítica 75, but his treatment is focused on the logic of reasons for action rather than on ascertaining the content of the law. Kevin Toh has analysed Raz’s suggestion using the psychological notion of simulation: Kevin Toh, ‘Raz on Detachment, Acceptance and Describability’ (2007) 27(3) Oxford Journal of Legal Studies 403, 414. There is some similarity between notions of simulation and linguistic performance within the scope of a stipulation—because in the latter the speaker accepts the stipulation somewhat as if it were a warranted assertion—but the stipulation account makes it clearer how legal content is established and reasoned with.
45. This is also fairly ordinary legal reasoning. However, many accounts of law begin from an assumption that a system of laws is a system of norms (see, eg, Hart (n 42)), and hence lack the resources to straightforwardly account for this second form that unconstitutionality can take.
46. Kable (1996) 189 CLR 51, 111.
47. Ibid 139, 141; see also the surrounding discussion at 141–2. Gaudron J affirmed a weaker structural implication, namely, that for s 71’s provision for the vesting of federal judicial power in courts other than federal courts (ie, state courts) to remain effective, the states must each maintain at least one court: 103. McHugh J made the same point (at 111) on the way to making the stronger claim quoted above, as did Gummow J (at 140, and making reference not only to ss 71 and 73 but also covering clause 5 and ss 51(xxiv), 77(iii) and 79).
48. (2006) 228 CLR 45, 74 [57] (Gummow, Hayne and Crennan JJ) (‘Forge’); see also 76 [63]. This was affirmed by the majority judgment in Kirk (2010) 239 CLR 531, 566 [65].
49. In this respect, the contrast drawn between a right to free speech, and the freedom of political communication that is a necessary incident of the constitutional mandate that the members of the Commonwealth Parliament be directly chosen by the people, seems apposite: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 560; see also the discussion of this point in Patrick Emerton, ‘Political Freedoms and Entitlements in the Australian Constitution—An Example of Referential Intentions Yielding Unintended Legal Consequences’ (2010) 38(2) Federal Law Review 169, 194–5.
50. A similar circularity objection to this sort of reasoning from the terms of s 73 was advanced by Victoria in argument in Kirk (2010) 239 CLR 531, 547.
51. (1994) 182 CLR 104, 198.
52. Melbourne Corporation v The Commonwealth (1947) 74 CLR 31, 83.
53. The example is from Bertrand Russell, ‘On Denoting’ (1905) in Logic and Knowledge (Routledge, 1956) 41.
54. Ibid 46.
55. P F Strawson, ‘On Referring’ (1950) 59(235) Mind 320. For Russell’s reply, see Bertrand Russell, My Philosophical Development (Unwin, 1959) 175–80. For a contemporary discussion of the sort of presupposition introduced by use of the definite article, see Barker, Renewing Meaning (n 37) 142–3.
56. As it does in s 73.
57. There is a question here about the use of the word any. I am treating the phrase the Supreme Court of any State as synonymous with the Supreme Court of any State of the Commonwealth, or in other words the Supreme Courts of each of State1, State2 ,…(for each state of the Commonwealth). Lisa Burton Crawford has suggested that an alternative reading of the phrase may be available, namely, the Supreme Court of any State that happens to have one: on this alternative reading, the use of the definite pronoun would not generate an existential presupposition but simply a presupposition of uniqueness (that is, that any state would have no more than a single Supreme Court), because the qualification that happens to have one would interact with the generality of any to signal that the reference of the constitutional phrase is confined to those state Supreme Courts that happen to exist. The High Court, in the Kable line of cases, has clearly preferred the first reading to the second. This article will not attempt to defend that reading, except to note that it is clearly a grammatically permissible reading of the constitutional phrase, and arguably the more intuitive one given that there is nothing else about the provision to suggest that any State means any State that happens to have a Supreme Court rather than any State of the Commonwealth.
58. In an earlier essay, I suggested that the Constitution’s mandate that the members of the Commonwealth Parliament be directly chosen by the people, which generates an implication of political freedoms and entitlements sufficient to protect the occurrence of this mandated event, was analogous to the sort of implication just discussed in the text: Emerton, ‘Political Freedoms and Entitlements in the Australian Constitution’ (n 49) 203. That suggestion involved a technical error. The Constitution expressly mandates that the direct choice of the members of Parliament by the people shall take place. Hence, the truth of the legal proposition there shall occur that direct choice does not depend upon the generation of any existential presupposition. (The only existential presupposition in the neighbourhood is that there shall be a people of the Commonwealth and of the several States; determining what legal consequences this might have is beyond the scope of this article, although some interesting suggestions may be found in P Keane, ‘The People and the Constitution’ (2016) 42(3) Monash University Law Review 529.).
59. Forge (2006) 228 CLR 45, 67–8 [41]; see also 121 [191]–[192] (Kirby J).
60. See the discussion in Section II above.
61. Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 252 CLR 38, 47 [2], [4] (‘Pompano’).
62. The Oxford English Dictionary (online at 10 June 2019) ‘water’ cites modern English uses of water dating back to the 16th and 17th centuries, and of course cognate words in older forms of English; and synonyms in other languages date back to the origins of human languages. That water is a compound of hydrogen and oxygen was established in the second half of the 18th century, with Lavoisier showing their ratio (by mass) to be 1:8 in the 1770s and Avogadro establishing the chemical composition as H2O in 1811. For discussion of exactly what it is that constitutes different chemical kinds as the kinds that they are, see Paul Needham, ‘The Discovery that Water is H2O’ (2002) 16(3) International Studies in the Philosophy of Science 205. For a foundational discussion of the relationship between the chemistry of water and the reference of the term water, see Putnam, ‘The Meaning of “Meaning”’ (n 10).
63. For more technical and elaborate arguments in favour of this account of meaning, see Putnam, ‘Dreaming and “Depth Grammar”’ (n 10); Putnam, ‘The Meaning of “Meaning”’ (n 10); Scott Soames, Reference and Description (Princeton University Press, 2005). For the extension of this account to phenomena beyond those that are dealt with by natural science, see below n 70 and the text thereto.
64. Putnam describes this piggybacking, whereby a speaker is able to refer to things with which she is not personally familiar (and whose properties may be completely unknown to her), by using a word for it coined by someone else who does have such familiarity, as the ‘division of linguistic labour’: Putnam, ‘The Meaning of “Meaning”’ (n 10) 227–8. For a discussion that shows how this account of meaning, and the sociality of reference, can be extended even to referring terms that are used to talk about abstract or imaginary objects (eg, Santa Claus), see Barker, Renewing Meaning (n 37) ch 4.
65. The ‘twin earth’ thought experiment, in which the liquid on the other planet which so resembles water nevertheless turns out to have the chemical composition XYZ, and hence to not be water, is set out and discussed by Putnam in ‘The Meaning of “Meaning”’ (n 10). In such a scenario, we have good reason to say that the inhabitants of the other planet use a word that sounds like our word water but is, in fact, a different word, because of its different meaning; Soames makes much the same point in Reference and Description (n 63) 64–5, 192.
66. I owe this point to Hrafn Asgeirsson. It could be seen as an application, to the case of commands, of the idea that ‘descriptions are often used referentially, to focus attention on a particular individual…the intended referent’, which can succeed even if the description is false (as in the example in the text, of a dolphin being described as a fish): Soames (n 8) 10–11 (the quotation is from 10), drawing on Keith S Donnellan, ‘Reference and Definite Descriptions’ (1966) 75(3) Philosophical Review 281. As noted above, at the end of Section III, and as is further developed in the text immediately following this footnote, the stipulation approach avoids the need to speculate about, or attribute, intentions in this fashion.
67. For very forceful criticism of the idea that law can be understood as a series of commands, see Greenberg, ‘The Standard Picture and Its Discontents’ (n 26). It is a strength of theorising the Constitution as stipulation that this criticism is avoided.
68. Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’ (n 2) 100.
69. See above nn 20–4, 59 and 61, and text thereto.
70. Kirk (2010) 239 CLR 531, 566 [55]; see also 580–1 [98]–[99].
71. Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’ (n 2) 101, 102; the quoted phrase appears on both pages.
72. Karl Marx, ‘Preface’ Contribution to the Critique of Political Economy (1859) in Lewis S Feuer (ed), Karl Marx and Friedrich Engels: Basic Writings on Politics and Philosophy (Fontana/Collins, 1984) 85. For more contemporary arguments that social situations can have characteristics, including essential characteristics, that we who participate in them do not appreciate, see Sally Haslanger, ‘What Are We Talking About? The Semantics and Politics of Social Kinds’ (2004) 20 Hypatia 10; Raymond Geuss, Philosophy and Real Politics (Princeton University Press, 2008), especially at 51–4; Emerton, ‘Political Freedoms and Entitlements in the Australian Constitution’ (n 49) 183–4. Where referring terms are highly value-laden—as may be the case for many terms that refer to social institutions—it may be that (at least) many speakers’ primary mode of epistemic access to those terms’ objects of reference is by way of evaluative responses. Such cases introduce additional technical complexities into the analysis of reference, but these do not affect the argument of this article. For an account of these complexities, see Stephen Barker, ‘Is Value Content a Component of Conventional Implicature?’ (2000) 60 Analysis 268, esp 277 n 10.
The considerations advanced by Marx, Haslanger and Geuss, which favour a referential externalist account of terms that refer to social institutions, are not answered by suggesting that the meaning of such terms, although not given by the beliefs or ideas of an individual speaker, might nevertheless be given by a community of interpreters (for instance, along the lines suggested by Dworkin (n 35) ch 2), and hence might not be external in the relevant sense. The goal of inquiry into social institutions is to ascertain not what a contemporary audience makes, or should make, of certain institutions, but rather the nature of those institutions themselves in their particular historical specificity: see, eg, Raymond Geuss, History and Illusion in Politics (Cambridge University Press, 2001) 1–13. For discussion of the risks of interpreters’ projections undermining social inquiry, see Patrick Emerton, ‘Naturalising Natural Law? Reflections on Martin Krygier’s Philip Selznick: Ideals in the World and Kristen Rundle’s Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller’ (2014) 39 Australian Journal of Legal Philosophy 161, 166, 171–2, 175; Martin Krygier, ‘Reply To Patrick Emerton’ (2014) 39 Australian Journal of Legal Philosophy 176, 188, The reconciliation of a referential externalist account of meaning with a historicised approach to institutions will be undertaken in Sections IV(D) and IV(E) below.
73. Roach v Electoral Commissioner (2007) 233 CLR 162, 194–5.
74. For a fuller discussion of this example, see Emerton, ‘Political Freedoms and Entitlements in the Australian Constitution’ (n 49) 195–9; one consequence of this account of the people as a constitutional term is that, given that women are, in fact, fully engaged in the civic life of the polity, it would be unconstitutional to disenfranchise them. Goldsworthy has said of this conclusion that ‘I welcome [it], and applaud the reasoning that leads to it’: ‘Constitutional Implications Revisited’ (n 7) 17.
75. See, eg, Clancy v Butchers’ Shop Employees Union (1904) 1 CLR 181; Baxter v New South Wales Clickers’ Association (1909) 10 CLR 114; both are discussed in Roos (n 4) and Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’ (n 2).
76. Pompano (2013) 252 CLR 38, 72 [68]; cited in part by Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’ (n 2) 100.
77. I put aside the possibility that a sufficiently rich knowledge of an animal’s DNA would permit all-at-once epistemic access to the temporal dimensions of its internal biochemistry, and hence to its propensity to respond to its external environment. I take it as given that our understanding of the ‘DNA’ of human social institutions is not as developed as our understanding of animal biochemistry.
78. Gould (1998) 193 CLR 346, 444 [186]. The majority judgment in Kirk cited the first two sentences with approval: Kirk (2010) 239 CLR 531, 572 [66]. More recently, Gageler J has somewhat similarly observed that ‘State jurisdiction cannot simply be equated with the jurisdiction which belonged to the courts of the colonies which on federation became States. On federation, everything adjusted’: Burns v Corbett [2018] HCA 15 [72], and see also [112] (‘Burns’).
79. Roos is, therefore, correct to say that if the decision in Kirk is to be defended, it must defended on the basis of an ‘on federation’ rather than ‘pre-federation’ account of the essential characteristics of state Supreme Courts: Roos (n 4) 794.
80. (1996) 189 CLR 51, 142.
81. Barker calls this the ‘sentential determination’ of referential content: Renewing Meaning (n 37) 144–8. It is a distinctive feature of the indefinite article (‘a’) that its use is able to generate content in this way.
82. For a technical discussion of this sort of content inheritance in virtue of co-reference, and also of the use of apposition, by way of that-clauses, see Barker, Renewing Meaning (n 37) 112, 147–8, 176–9.
83. (1996) 189 CLR 51, 142–3. Goldsworthy argues for just this sort of ‘confession and avoidance’: ‘Kable, Kirk and Judicial Statesmanship’ (n 2) 82–3.
84. An answer is thereby provided to Goldsworthy’s question, ‘How could the High Court’s institutional integrity be damaged if it could not become involved?’: ‘Kable, Kirk and Judicial Statesmanship’ (n 2) 83; the quoted question is asked by Goldsworthy in the context of a discussion of this passage in Gummow J’s judgment.
85. Krygier, Philip Selznick (n 11).
86. Ibid 76, 86.
87. Ibid 116.
88. For a fuller discussion of this element of Selznick’s thought see Emerton, ‘Naturalising Natural Law?’ (n 72).
89. (1999) 198 CLR 511, 553 [46]. See also Gageler J in Burns [2018] HCA 15 [116], citing this passage with approval and adding that:
There is no reason in constitutional principle why a structural implication must be shown to accord with pre-federation expectations, or be shown to be likely to have been recognised by some actual or notional office holder or other potential litigant at the time of federation, in order for that structural implication now to be judicially recognised or confirmed. The Constitution was not framed for the moment of its creation, but as an enduring instrument of government.
90. Goldsworthy, in characterising the Kable and Kirk decisions as ‘judicial statesmanship’, thereby suggests that if those cases are to be justified at all that justification must be in terms of the desirability of the result that those decisions yield. But on the account of institutions set out in the text, the cases turn not on what is desirable in an institution but rather on what demands are generated by, and within, the institutions that we have been given. For similar reasons, this article’s account of the manifestation over time of an institution’s essential characteristics is quite different from that found in Jack M Balkin, Living Originalism (Harvard University Press, 2011). The latter emphasises a constitution’s deliberate empowerment of subsequent generations to determine appropriate norms within a framework established by the constitution; whereas this article’s account takes the purpose, goals and values of the institution as being given by the constitution, with time being important not because it provides the occasion for determination within a framework, but because it provides the context within which the needs of the institution, and hence crucial elements of its character, reveal themselves.
91. Consider, eg, Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police (2008) 234 CLR 532 (‘Gypsy Jokers’) (concerning a purported statutory conferral of power on the Western Australian Commissioner of Police to direct a state court to treat certain information as confidential in the context of hearing a review of the executive’s exercise of a statutory power to issue ‘fortification removal notices’ in respect of premises habitually used by suspected criminals); International Finance Trust Company Ltd v New South Wales Crime Commission (2009) 240 CLR 319 (‘International Finance’) (concerning a purported statutory conferral of power on the New South Wales Crime Commission to obtain an order from a state court ‘freezing’ certain assets connected to criminal activities in an ex parte hearing with only a very limited right of the affected party to subsequently contest the order); South Australia v Totani (2010) 242 CLR 1 (‘Totani’) (concerning a purported statutory duty on a state court to issue a ‘control order’ against a person, on an application by the South Australian Commissioner of Police, if that person was a member of an organisation which the Attorney-General of South Australia, pursuant to the exercise of a statutorily-conferred power, had determined to be a criminal organisation); Wainohu v New South Wales (2011) 243 CLR 181 (‘Wainohu’) (concerning a purported statutory conferral of power on a state judge acting as persona designata to determine, upon an application by the New South Wales Commissioner of Police, whether or not an organisation is a criminal organisation, without giving reasons for that determination, and in circumstances where such a determination would then enliven a further statutory power for the Commissioner to seek a ‘control order’ against any member of the organisation in question).
92. For example, the power of a court to manage its own processes so as to ensure that natural justice is enjoyed by those subject to its orders (which was threatened by the regimes at issue in Gypsy Jokers (2008) 234 CLR 532 and International Finance (2009) 240 CLR 319) and the power of a court to adjudicate the conduct of those individuals who might be subject to its orders on grounds of criminality (which was threatened by the regime at issue in Totani (2010) 242 CLR 1).
93. As in Wainohu (2011) 243 CLR 181.
94. (1874) LR 5 PC 417 (‘Willan’).
95. This criticism is found in Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’ (n 2) 96; Roos (n 4) 785–94.
96. The majority does state, with reference to Willan, that ‘accepted doctrine at the time of federation was that the jurisdiction of the colonial Supreme Courts to grant certiorari for jurisdictional error was not denied by a statutory privative provision’: (1874) LR 5 PC 417, 580 [97]. However, this statement comes immediately after a quote of the Privy Council saying that
the effect of [such a privative provision] is not absolutely to deprive the Supreme Court of its power to issue a writ of certiorari to bring up the proceedings of the inferior Court, but to control and limit its action on such writ. There are numerous cases in the books which establish that, notwithstanding the privative clause in a statute, the Court of Queen’s Bench will grant a certiorari.
(1874) LR 5 PC 417, 442, cited in Kirk (2010) 239 CLR 531, 580 [97].
The Privy Council here is referring to techniques of statutory interpretation used to read down privative clauses. Hence the High Court majority’s reference to ‘accepted doctrine’ should be understood as referring not to constitutional doctrine concerning the (in principle) powers of colonial parliaments, but rather the way in which doctrinal reasoning, including the interpretation of statutes, was responsive to a certain conception of the supervisory function of Supreme Courts. This understanding is further reinforced by the majority’s statement only a few paragraphs earlier that
Understanding the law relating to privative provisions must begin from the proposition that…[one] question presented by a privative provision is…a conundrum of contrariety requiring a resolution of competing elements [ie both the imposition of a statutory requirement and the protection from challenge of action taken in disregard of that requirement] of the one legislative instrument.
At 579 [94], citing with approval the well-known remarks to this effect made by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, 617. Roos recognises that the Court is better understood to be referring to interpretive practices in relation to privative clauses, as opposed to formal legislative power in respect of them, but then focuses on post-federation decisions that upheld privative clauses in state legislation (see (n 73)) without considering how it might be that such decisions failed to reflect a true understanding of the post-federation nature of state Supreme Courts: Roos (n 4) 794–8.
97. Some of the argument in Luke Beck, ‘What is a “Supreme Court of a State”?’ (2012) 34(1) Sydney Law Review 295 comes close to this, such as the argument that Kirk is correct because ‘consistent with the constitutional framework for the Australian judicial system’ (at 301), and the suggestion that the conclusion in Kirk and indeed the High Court’s own jurisdiction to review decisions of officers of the Commonwealth, might be derived simply from the place of these courts as ‘supreme’ courts of their respective polities: 302–3.
98. This is a version of Goldsworthy’s requirement for the existence of an implication by way of necessity: ‘Kable, Kirk and Judicial Statesmanship’ (n 2) 77–8; and see also ‘Constitutional Implications Revisited’ (n 7) 18–20. Roos has argued for an implication of this very sort as a partial defence of the Kirk decision, but unlike the argument of this article, Roos' argument does not purport to follow or reconstruct the reasoning of the High Court: Oscar I Roos, ‘An Alternative (Partial) Justification for the Holding in Kirk’ (2015) 26 Public Law Review 111.
99. Kirk (2010) 239 CLR 531, 581 [99].
100. Ibid 579 [93].
101. Ibid 581 [98].
102. Ibid 581 [99].
103. Adrienne Stone has criticised the grounding of fundamental constitutional doctrines on implications derived from text and structure on two grounds: the inability of such implications to generate sufficiently rich content; and the contestability of their existence and of the content that they generate. The first ground is advanced in ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ (1999) 23(3) Melbourne University Law Journal 668; ‘The Limits of Constitutional Text and Structure Revisited’ (2005) 28(3) University of New South Wales Law Journal 842; the second ground is advanced in ‘Australia’s Constitutional Rights and the Problem of Interpretive Disagreement’ (2005) 27(1) Sydney Law Review 29. The argument of this article shows how rich content can be generated by these sorts of implications—while it is true that this content will not settle such questions as the standard of review or test to be applied, as Stone notes, this is equally the case for express constitutional provisions such as the conferrals of legislative power in s 51 (‘Australia’s Constitutional Rights and the Problem of Interpretive Disagreement’ (2005) 27(1) Sydney Law Review 29, 37–8). However, the argument of this article does not do anything to dispel contestability. The correct sociological understanding of an institution, particularly one which is still vibrant and unfolding and an object of practical concern for those who are seeking to understand it, is never going to be an uncontested matter.