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Political Freedoms and Entitlements in the Australian Constitution — An Example of Referential Intentions Yielding Unintended Legal Consequences

Published online by Cambridge University Press:  24 January 2025

Patrick Emerton
Patrick Emerton*
Affiliation:
Monash University
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Extract

This article is about the interpretation of legal texts. Its immediate aim is to defend, against a certain sort of originalist objection, the well-known cases that hold that the Australian Constitution, by implication, guarantees certain political freedoms and entitlements. That is not to say that the article intends to vindicate the outcome of every one of those cases – rather, it intends to vindicate the general methodology and orientation of those cases as stated by the High Court in Lange v Australian Broadcasting Corporation.

The general character of the originalist objection I have in mind is that no implication (other than perhaps a strictly logical implication) can be drawn from a legal text which is at odds with the actual intentions of the authors of that text.

Type
Research Article
Information
Federal Law Review , Volume 38 , Issue 2 , June 2010 , pp. 169 - 203
Copyright
Copyright © 2010 The Australian National University

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Footnotes

This article was originally presented to the 2009 Constitutional Theory Colloquium, Centre For Comparative Constitutional Studies, University of Melbourne Law School. I would like to thank Steve Barker and Jeff Goldsworthy for many helpful discussions on the subject matter of the article, Jayani Nadarajalingam for her research assistance, and John Daley, Natasha Guantai, Toby Handfield, Kevin Heller and Dale Smith for their comments on earlier versions.

References

1 (1997) 189 CLR 520 ('Lange’).

2 Jeffrey, Goldsworthy, ‘Implications in Language, Law and the Constitution’ in Geoffrey, Lindell (ed), Future Directions in Australian Constitutional Law (1994) 150, 166–67Google Scholar. Although this article takes Goldsworthy's writings on the Australian Constitution as its principal target, the argument of the article has broader relevance to debates about originalism and the meaning of legal texts in other jurisdictions. Solum notes that ‘Predating much of the American work on the New Originalism was Jeffrey Goldsworthy's work, addressed to the Australian Constitution, but developed with an explicit awareness of the theoretical debates swirling around American constitutionalism': Lawrence B Solum, ‘Semantic Originalism’ (2008) Illinois Public Law and Legal Theory Research Papers Series No 07–24 (draft created on 22 November 2008) Social Science Research Network <http://papers.ssrn.com/abstract=1120244> at 28 May 2010, 19. It follows from this that a consideration of the implications or limitations of Goldsworthy's position will have ramifications for the American debate (for one example of such ramifications, see below n 55). (Solum, at 19, identifies as Goldsworthy's ‘first major statement’ of his position Jeffrey, Goldsworthy, ‘Originalism in Constitutional Interpretation’ (1997) 25 Federal Law Review 1Google Scholar. But much of the technical argument of this later piece is anticipated by ‘Implications in Language, Law and the Constitution'.

3 Goldsworthy, ‘Implications', above n 2, 182.

4 For example, Allan and Aroney argue that the purpose of a written constitution is to ‘lock in’ certain political outcomes, and that it would vitiate this purpose if the process of interpretation were permitted to lead to constitutional outcomes at odds with the beliefs and expectations of the framers: James, Allan and Nicholas, Aroney, ‘An Uncommon Court: How the High Court of Australia Has Undermined Australian Federalism’ (2008) 30 Sydney Law Review 245Google Scholar, 246–49, 251–55. This is, in effect, an argument that there should be a judicial power of constitutional rectification if the proper interpretation of the text would lead to outcomes different from those contemplated and desired by the framers (on the notion of rectification, see below n 16 and accompanying text). Goldsworthy rejects the existence of a power of rectification grounded in such political considerations: ‘Implications', above n 2, 183.

5 Stephen, J Barker, Renewing Meaning: A Speech-Act Theoretic Approach (2004)Google Scholar. Unlike earlier work on speech acts, including that which Goldsworthy discusses ('Implications', above n 2), Barker presents the theory of speech acts, not as an adjunct to a general semantic theory but, as a general semantic theory: see below n 29.

6 ‘Dreaming and Depth Grammar’ in R J Butler (ed), Analytical Philosophy (1962) 211, 218–21; ‘The Meaning of “Meaning“’ in Mind, Language and Reality: Philosophical Papers, Volume 2 (1975) 215–217.

7 Naming and Necessity (1980).

8 Goldsworthy, ‘Implications', above n 2, 154.

9 Ibid 156.

10 See, eg, J, Alberto Coffa, The Semantic Tradition from Kant to Carnap: To The Vienna Station (1991)Google Scholar chs 7, 17.

11 Goldsworthy does not consider an additional interesting category of semantically-determined implications, namely, conventional implicatures, which contribute to meaning without contributing to truth-conditions: see Barker, above n 5, 40, 42–44, 100. An example is the non-truth-conditional implication, introduced by use of the conjunction ‘but’ in place of ‘and', that a contrast obtains between the conjuncts. This article will not consider conventional implicatures either.

12 Goldsworthy, ‘Implications', above n 2, 154, 156, 163–64, 165, 169.

13 Ibid 154–56. Paul Grice calls these ‘conversational implicatures': Studies in the Way of Words (1989) 26–31, 39–40.

14 The example, together with a more technical analysis, can be found in Grice, above n 13, 24, 31.

15 Goldsworthy, ‘Implications', above n 2, 164.

16 Ibid 164–165, 169, 183.

17 Ibid 172.

18 The reasons that might support such rectification are stated by the majority in Boilermakers':

[T]he distinction was perceived [by the framers of the Constitution] between the essential federal conception of a legal distribution of governmental powers among the parts of the system and what was accidental to federalism … The position and constitution of the judicature could not be considered accidental to the institution of federalism: for upon the judicature rested the ultimate responsibility for the maintenance and enforcement of the boundaries within which governmental power might be exercised and upon that the whole system was constructed.

R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 275–76 (Dixon CJ, McTiernan, Fullagar and Kitto JJ) ('Boilermakers’). That is to say, the role of the federal judicature in upholding the federal arrangements mandated by the Constitution requires that there be a separation of judicial power. If this is true, and if the separation of judicial power is neither expressly provided for nor implied, then judicial rectification becomes one way of meeting the necessity. For a discussion of when, if at all, judicial rectification of the Constitution is permitted, see Goldsworthy, ‘Implications', above n 2, 183.

19 Goldsworthy, above n 2, 154, 157–61.

20 Ibid 165–66.

21 Ibid 172–73.

22 Thus, in the Communist Party Case Fullagar J observed that ‘in our system the principle of Marbury v Madison is accepted as axiomatic': Australian Communist Party v Commonwealth (1951) 83 CLR 1, 262 (footnote omitted). Goldsworthy also suggests that rather than being an implicit assumption, the power of judicial review may arise under pre-existing law: ‘Implications', above n 2, 173.

23 Boilermakers’ (1956) 94 CLR 254, 274–75.

24 Ibid 270–72.

25 The example is from John R Searle, ‘Literal Meaning’ in Expression and Meaning: Studies in the Theory of Speech Acts (1979) 127–28. It is discussed by Goldsworthy, ‘Implications', above n 2, 158.

26 The example is from Ludwig Wittgenstein, Philosophical Investigations (G E M Anscombe trans, 1958) [70]. It is discussed by Goldsworthy, ‘Implications', above n 2, 158–59. Earlier, Wittgenstein introduces his well-known notion of ‘family resemblance', that (for example) there is no common set of properties shared by all the things referred to by ‘game', but rather ‘a complicated network of similarities overlapping and criss-crossing': at [66]–[67]. This may be true of a word like ‘game’ considered in the abstract from any occasion of use, but as parts 2 and 3 go on to explain, the intention with which such a word is used on any given occasion constrains its reference so as to introduce considerably greater determinacy. See also below n 47.

27 Goldsworthy, ‘Implications', above n 2, 158.

28 He does assert that the distinction is important: ibid 152.

29 For a sustained defence of this claim, locating it within a Davidsonian, truth-conditional account of semantic content, see Herman, Cappelen and Ernie, Lepore, Insensitive Semantics: A Defence of Semantic Minimalism and Speech Act Pluralism (2005)Google Scholar. For Donald Davidson on the relationship between truth-conditions, semantic content and pragmatics, see ‘Truth and Meaning’ (1967), ‘What Metaphors Mean’ (1978) and ‘Communication and Convention’ (1982) in Inquiries into Truth and Interpretation (1984). As will become clear, I think this position is mistaken. This article draws on the alternative account of the relationship between truth, content and pragmatics developed by Barker, according to which semantics simply is a highly abstract formal and compositional pragmatics: above n 5.

30 Barker, above n 5, 82 (note also that Barker's analysis at 50 is overly simplistic, as it fails to draw the crucial distinction between generic and linguistically structured desires).

31 For Goldsworthy's discussion of this example, see ‘Implications', above n 2, 152.

32 Barker, above n 5, 122.

33 Goldsworthy, ‘Implications', above n 2, 159–61.

34 Ibid 152, 166. See also the discussion of ‘advertising an intention’ in Barker, above n 5, 7, 11, 113.

35 For a more technical account of apposition and relative pronouns, see Barker, above n 5, 112, 180–83.

36 That is not to say that in other cases, where it is not the content of referring terms that is at issue, there may not be an interesting distinction between express and implied meanings. For example, implicatures (of which deliberate implications are an example) are components of meaning that do not contribute to the truth conditions of utterances: see the extensive discussion in Barker, above n 5.

37 Goldsworthy, ‘Implications', above n 2, 182.

38 A further way in which the waiter's two imagined utterances differ is that the second contains the indefinite rather than the definite article. Use of the definite article — as in the hamburger that you ordered — signals that the content of hamburger is already sufficiently established in the conversational context to uniquely fix its reference. This further contributes to hamburger, as used by the waiter, inheriting the content it has when used by me (the reference-fixing content is (roughly) ‘hamburger to be brought to me on this occasion’). Conversely, use of the indefinite article — as in a hamburger — signals that the conversation has not yet sufficiently established the content of hamburger in order to uniquely fix its reference, and invites the audience to fill out that content by processing the utterance itself. In the case of ‘Here is a hamburger', that processing would include noting that what is adduced is a plastic-encased hamburger, and this would signal that the reference of hamburger is intended to include such things. On these differing contributions to meaning made by ‘the’ and ‘a', including when relative pronouns are also used, see Barker, above n 5, 111–12, 136–37, 141–44, 181.

39 This is a simplification of the technical account found in Barker, above n 5, 111, 118–19, 122–23, 126–27, 132, 153. The apparent circularity in this explanation will be taken up in the next part.

40 For a sketch of an account of language in which meanings result entirely from a speaker's own referential intentions, with no incorporation of the intentions of others, see Bertrand, Russell, The Philosophy of Logical Atomism (first published 1918, 1985 ed)Google Scholar, especially at 61–65. On Russell's account the only truly referring terms are (i) demonstratives, and (ii) the names of sensory properties such as colours and tones. All other grammatically referring terms are logically complex combinations of these truly referring terms. It is generally accepted by contemporary philosophers that this sort of account does not have sufficient resources to account for the communicative power that public languages actually possess.

41 See, eg, the discussions in Barker, above n 5, 120, 122; Kripke, above n 7, 96, 106, 134–35, 162. These discussions are concerned primarily with proper names rather than common nouns. In the case of a proper name, the referential intention is that W should refer to the baptised object. In either case, if W is a homonym (which will frequently be the case if W is a proper name) then a further referential intention will be that the content of the newly-coined W be distinct from the content of W's homonyms.

42 Putnam describes this piggybacking, whereby a speaker is able to refer to a kind 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 was familiar with it, as the ‘division of linguistic labour': ‘The Meaning of “Meaning“', above n 6, 227–29.

43 This account of baptism for (certain) common nouns is adapted from the account of the drifting meaning of Madagascar found in Barker, above n 5, 121. On that account, the cumulative weight of uses of the word while demonstrating the island off the east coast of Africa, rather than that coast itself, explains how Madagascar comes to refer to the island rather than the coast, despite the coast being the initial object of baptism. Not all common nouns involve this sort of drift (although some may), but the cumulative weight of uses of the word in demonstrative contexts is able to substitute for the lack of a primordial act of baptism. See also Putnam's discussion of non-natural kind terms in ‘The Meaning of “Meaning“', above n 6, 242–5.

44 Putnam, ‘The Meaning of “Meaning“', above n 6, 241.

45 On the relevant notion of resemblance, see Sally, Haslanger, ‘What Are We Talking About? The Semantics and Politics of Social Kinds', (2005) 20(4) Hypatia 10, 18Google Scholar.

46 Which is to say, using the language of the division of linguistic labour, that at least one speaker must do the labour: see above n 42.

47 It should be noted that this disagreement might arise even if there is agreement that P includes the description consists of members who represent particular localities. Even if P includes this description, it might be that things that do not satisfy it, nevertheless, are of the same kind as those things that do. The function of P is to identify the baptismal instance of parliament, not to specify the essential characteristics of parliaments as a kind. Thus, although the notion of ‘family resemblance’ (above n 26) may be true of the instances of certain kinds, that notion does not help us to understand how referential chains are established. Baptism depends upon picking out an instance of a kind, not upon describing more-or-less vaguely the essential nature of all instances of that kind. Indeed, as Putnam points out, it may well be possible to baptise a kind while being quite ignorant of its underlying nature — thus, neurologists were able to baptise the kind multiple sclerosis by pointing to an instance exhibiting its typical symptoms, although ignorant of its aetiology, and eighteenth century chemists were able to baptise the kind acid although ignorant of the underlying chemical nature of acids: ‘Dreaming and Depth Grammar', above n 6, 218–21. Unfortunately, discussions of family resemblance do not always draw this distinction. For example, Simon Evans refers indifferently to ‘the essential features of a thing’ and to ‘the essential features of the concept to which [a] term corresponds’ (that is, to the essential features of the mental representation of the kind referred to by the word in question), and likewise to ‘similarities between instances of concepts’ (that is, to similarities between instances of a kind) and ‘[similarity] in relevant respects to some representation of the concept’ (that is, to similarities to mental representations of kinds): ‘The Meaning of Constitutional Terms: Essential Features, Family Resemblance and Theory-Based Approaches’ (2006) 29 UNSW Law Journal 207, 211–13, 217. As we have seen, for a word to refer to a kind, the mental representation of that kind by the use of the word need not have any particular features at all — essential, resembling in the family way or otherwise — provided only that it locates the use of the word in the correct referential chain.

48 ‘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 (1984) 85Google Scholar.

49 At least some social theorists take the view that, at least in some cases, part of the function of those practices is to engender false beliefs about them and their salient features: see the discussion of ideology in Raymond Geuss, Philosophy and Real Politics (2008), especially at 51–54.

50 Law and Irresponsibility: On the Legitimation of Human Suffering (2007) 40.

51 Geuss, above n 49, 9–15 (footnote omitted).

52 Haslanger, above n 45, 20 (emphasis in original).

53 Ibid 17. This relevance of social and historical inquiry to questions of legal interpretation may be one way of making sense of Ronald Dworkin's notorious claim that ‘no firm line divides jurisprudence from adjudication … Jurisprudence is the general part of adjudication, silent prologue to any decision at law': Law's Empire (1986) 90. Of course, the jurisprudence in question may not be quite the sort of jurisprudence that Dworkin has in mind, being concerned less with political philosophy than with social theory.

54 Section 51(x).

55 This conclusion is sufficient to cast doubt on theories of interpretation that identify the meaning of a constitutional text as its original conventional semantic meaning (such as the ‘semantic originalism’ defended by Solum, above n 2): as the discussion in the text has shown, the conventions that govern a word's usage may rest upon false beliefs about the properties of the kinds to which the speakers in question intend to refer. Solum asserts that an originalist theory of this sort could simply ‘incorporate the role of linguistic convention in creating the necessary relationships between words and phrases, on the one hand, and … kinds, on the other': above n 2, 95. Such an attempt at incorporation, however, would in fact result in a transformation of the theory, in two respects. First, it would render interpretation dependent upon the referential intentions of law-makers, because it is these intentions which determine in which referential chains law-makers’ utterances are located, and any conventional meanings of the sort that might be recorded in a dictionary are subsequent to, not prior to, the location of particular utterances within particular referential chains (see above n 36 and accompanying text); whereas Solum, at 38–50, puts forward a theory of interpretation based on original conventional semantic meaning precisely to avoid having to make these sorts of inquiries into law-makers’ intentions. (It is beyond the scope of this article to consider Solum's reasons for believing that the relevant intentions of the law-makers cannot be identified.) Second, for reasons we have already seen (above n 49 and accompanying text), recognition of the importance to legal interpretation of social and political kinds naturally shifts the burden of the interpretive inquiry away from original understandings and towards inquiries into the nature of social and political arrangements, which inquiries will naturally draw upon our best contemporary understandings of such matters (of course, our best contemporary understandings of how things were in the past will remain highly relevant, but we will likely be interested in far more than simply past conventional meanings).

56 Section 51(xxi).

57 As is the case, eg, for phlogiston: see the discussion in Barker, above n 5, 132 (although Barker talks of denoting, reserving referring to refer to the speech act of uttering a referring term: at 7, n 10).

58 For a discussion of the rationale for subordinating beliefs to practices, see Haslanger, above n 45, 13–17.

59 Goldsworthy, ‘Originalism', above n 2, 30.

60 Ibid.

61 Thus, Dworkin's drawing of much the same distinction (using the phrases semantic intention and political or expectation intention), while perhaps sufficient to rebut an originalism that fastens on the second category of intentions, does not on its own do very much to establish the implications and limitations of originalism as an approach to interpretation: Ronald, Dworkin, Justice in Robes (2006) 29–30Google Scholar, 125–26.

62 Goldsworthy, ‘Originalism', above n 2, 31.

63 Contra Allan and Aroney, who say that ‘a purposive approach in statutory interpretation is, in effect, an appeal to enactors’ intentions. What was their purpose in enacting this contested provision?', thereby implying that these two sets of mental states — a speaker's referential intentions, and a speaker's beliefs and hopes about what her words refer to — are identical: above n 4, 251.

64 (2007) 233 CLR 162 ('Roach’).

65 (1999) 199 CLR 462.

66 Roach (2007) 233 CLR 162, 173–74.

67 Goldsworthy, ‘Originalism', above n 2, 42.

68 (1988) 165 CLR 178 ('Nolan’).

69 Ibid 183–84.

70 Ibid 189.

71 See above n 66 and accompanying text. The majority in Nolan also draws attention to the same facts:

The transition from Empire to Commonwealth and the emergence of Australia and other Dominions as independent sovereign nations within the Commonwealth inevitably changed the nature of the relationship between the United Kingdom and its former colonies and rendered obsolete notions of an indivisible Crown.

Ibid 184. However, while the majority then goes on to assert that ‘[i]t is not that the meaning of the word “alien” had altered', no account is given, of the sort provided by Gleeson CJ, of the interaction between changing facts and unchanging meaning.

72 Nicholas Aroney has recently characterised the freedom as one that operates to invalidate legislation, both Commonwealth and State legislative powers being subject to the Constitution (ss 51, 52, 106): ‘The Implied Rights Revolution — Balancing Means and Ends?’ in H P, Lee and Peter, Gerangelos (eds), Constitutional Advancement in a Frozen Continent (2009) 173, 183Google Scholar. The High Court in Lange held that the freedom also operates to constrain the activities of the executive: above n 1, 560–61. Adrienne Stone has persuasively argued that the freedom — assuming that it exists — should also operate to prevent infringement by the common law that is developed and applied by the Australian judiciary: ‘Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication’ (2001) 25 Melbourne University Law Review 374; ‘The Common Law and the Constitution: A Reply’ (2002) 265 Melbourne University Law Review 646.

73 (1992) 177 CLR 106 ('ACTV’).

74 Ibid 186–87. It may be that, besides true choice, there is another relevant kind in the neighbourhood, namely, mere or formal choice. But as the quoted passage shows, even Dawson J does not entertain the suggestion that the framers intended to refer to this kind. I therefore exclude it from further consideration.

75 Aroney, above n 72, 183.

76 Ibid.

77 Nicholas, Aroney, ‘Justice McHugh, Representative Government and the Elimination of Balancing’ (2006) 28 Sydney Law Review 505Google Scholar, 515–16 (footnotes omitted).

78 ACTV (1992) 177 CLR 106, 182–83 (Dawson J); Allan and Aroney, above n 4, 292.

79 Allan and Aroney, above n 4, 292; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 193 (Dawson J), 200–201 (McHugh J) ('Theophanous’); Goldsworthy, ‘Implications', above n 2, 179–80; Jeffrey, Goldsworthy, ‘Constitutional Implications and Freedom of Political Speech: Reply to Stephen Donaghue’ (1997) 23 Monash University Law Review 362, 371Google Scholar; Aroney, above n 77, 528–29; Aroney, above n 72, 179–181.

80 (1994) 182 CLR 104, 192.

81 Aroney, above n 72, 182–184, 187; Goldsworthy, ‘Implications', above n 2, 180; Goldsworthy, ‘Reply', above n 79, 372–74.

82 (1994) 182 CLR 104, 203.

83 Goldsworthy, ‘Implications', above n 2, 180; Goldsworthy, ‘Reply', above n 79, 372. See also Aroney, above n 72, 182; Theophanous (1994) 182 CLR 104, 192 (Dawson J).

84 Even Dawson J sometimes has difficulty confining his attention to the constitutionally mandated direct choice, instead addressing the more general notion of representative government:

Sections 7 and 24, and the other provisions of the Constitution, do not guarantee free speech but provide for representative government. The only necessary or obvious implication, if indeed it be a matter of implication at all, is that there must be freedom of communication to the extent that it is a requirement of representative government.

Theophanous (1994) 182 CLR 104, 190. Aroney suggests that consideration of what is required by direct choice amounts to an extra-constitutional basis for establishing and defending the freedom, but he also notes that this is unavoidable (and hence, presumably, unobjectionable): having observed that ‘the task is limited to one of attributing meaning to the text of the Constitution’ (above n 77, 530), he further observes that:

On the assumption that constitutions are a form of legally authoritative communication on which judges rely in order to justify their decisions, semantics, syntax and pragmatics are thus unavoidable. And yet constitutions do not come with their own ready-made instructions about such matters; semantics, syntax and pragmatics are external to the Constitution.

above n 72, 177. As we have seen, interpretation also requires sociological and historical investigation. These are similarly external but unavoidable inquiries.

85 Aroney also makes this point: above n 77, 530.

86 Aroney, ‘Implied Rights Revolution', above n 72, 187, and see also Aroney, above n 77, especially at 519–28, 531–34. Dawson J makes a similar point in Theophanous, stating that ‘[i]f a law interferes with the essential elements of representative government, it is beyond power, regardless of any justification. No balancing process occurs': (1994) 182 CLR 104, 191.

87 Stone, ‘Rights', above n 72, 399–400, and see also the discussion at 390–400.

88 (1997) 189 CLR 520, 560.

89 In his Law of Peoples (1999), John Rawls seems to analyse human rights in a similar indirect way, as being enjoyed by individuals not directly, but because they are necessary incidents of a political community being the right sort of community to participate in international life: see the discussion in Patrick, Emerton, ‘International Economic Justice: Is a Principled Liberalism Possible?’ in Sarah, Joseph, David, Kinley and Jeff, Waincymer (eds), The World Trade Organization and Human Rights: Interdisciplinary Perspectives (2009)Google Scholar.

90 See the discussion in Stone, ‘Rights', above n 72, especially at 400–417.

91 See text accompanying nn 69 and 70.

92 Nolan (1988) 165 CLR 178, 185, quoting Pochi v Macphee (1982) 151 CLR 101, 109–10 (Gibbs CJ). The emphasis is added by the majority in Nolan.

93 Ibid 193.

94 See text accompanying n 63 above.

95 A similar understanding of membership of a polity, from which follows the same conclusion about the enfranchisement of children, is suggested in McKinlay v The Commonwealth (1975) 135 CLR 1, 36 (McTiernan and Jacobs JJ) ('McKinlay’).

96 (2007) 233 CLR 162, 194–95.

97 Whether or not such a belief was plausible in 1900, or remains plausible in some cases, it is probably not plausible in all cases (for example, in the case of prisoners, or of certain racial minorities).

98 Goldsworthy, ‘Originalism', above n 2, 43–45, 47. Heydon J raises a similar objection in his dissent in Roach (2007) 233 CLR 162, 226. The suggestion that the limits upon permissible disenfranchisement imposed by ss 7 and 24 has changed with time can be found in McKinlay (1975) 135 CLR 1, 36 (McTiernan and Jacobs JJ); McGinty v Western Australia (1996) 186 CLR 140, 201 (Toohey J), 221 (Gaudron J), 286–87 (Gummow J); Langer v Commonwealth (1996) 186 CLR 302, 342 (McHugh J); Roach (2007) 233 CLR 162, 174 (Gleeson CJ).

99 Roach (2007) 233 CLR 162, 174, 176–77, 179, 182.

100 Aroney discusses the parliamentary margin of appreciation in relation to the constitutionally mandated political freedoms: above n 77, 525, 532.

101 Roach (2007) 233 CLR 162, 202.

102 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 47 (Brennan J), 70 (Deane and Toohey JJ) ('Nationwide News’); ACTV (1992) 177 CLR 106, 137–138 (Mason CJ), 210–211 (Gaudron J).

103 Goldsworthy, ‘Originalism', above n 2, 45-47.

104 Ibid 46.

105 Ibid 46–47.

106 An exception to this is his discussion of jury, as that word occurs in s 80 of the Constitution. Goldsworthy suggests that jury refers not to the legally-constituted kind ‘a panel of men’ but to the non-legally constituted kind ‘a panel representing the community': ibid 32. But as he does not frame the issue in terms of referential chains with social and political kinds at their ends, he appears not to notice that this suggestion can be generalised to provide an account of the meaning of people.

107 Ibid 47.

108 Allan and Aroney, above n 4, 254–55, 292, and see also 255, fn 56.

109 Aroney, above n 77, 531, 534.

110 Ibid 532–34.

111 See above n 55.

112 Roach (2007) 233 CLR 162, 219.

113 Patricia, J Williams, ‘The Pain of Word Bondage (a tale with two stories)’ in The Alchemy of Race and Rights (1991)Google Scholar.

114 Roach (2007) 233 CLR 162, 224.

115 See text accompanying n 36 above.

116 Theophanous (1994) 182 CLR 104, 193–94.

117 Above n 83.

118 Theophanous (1994) 182 CLR 104, 197–98.

119 (1992) 177 CLR 1, 48–49 (footnote omitted).