In the dissenting judgment made by Callinan J in the landmark New South Wales v Commonwealth (“Workchoices’ Case”), a strong criticism was mounted against constitutional interpretation methods employed in the judicial forum. Explicitly, this conjecture was focused at Isaacs J’s judgement in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (“Engineers’ Case”), where a textualism approach to constitutional interpretation was adopted. Callinan J expressed the Engineers’ Case as “less than satisfactory”, using “detached language” to discredit its literal methodology of interpreting the constitution. Such a claim is unsubstantiated and will thusly be deconstructed, so that it can clearly be seen that the approach taken in Engineers’ Case was manifestly apt for the purposes of constitutional interpretation. Textualism at essence is an approach to statutory interpretation, whereby the courts are required to derive the meaning of a provision from its literal construction without a consideration of other factors such as the spirit or purpose. Callinan J’s critique is not without its merits, and concisely described a textualism approach as disregarding important considerations such as “fundamental policy of the constitution, federalism, and the careful division of power... the framers intended”. Another criticism that Callinan J expresses is through a reluctance to read the constitution as a whole, despite admitting the willingness for Engineers’ Case to adhere to the ‘golden’ rules of construction. However, as convincing as this argument appears, it is not entirely accurate and tends to conveniently omit other important considerations necessary for constitutional interpretation. Divergence from orginalism to textualism
The Engineers’ Case for its time was a revolutionary judgement which sought to overrule the concepts outlined in the previous decision of D’Emden v Pedder. The development of a textualism approach in Engineers’ Case¸ was necessary as it departed from an originalist methodology which depended on a ‘vague, individual conception of the spirit of the compact’. Isaacs J went onto asseverate that this method of interpretation would “inevitably lead... to divergencies and inconsistencies more and more pronounced as the decisions accumulate”. By necessity a strictly textual approach was used, giving a clear guide to both powers affirmative and restrictive. Currently in the High Court of Australia there is a predisposition towards a textualism approach of interpretation if the provision is sufficiently clear. In the case of ambiguity extrinsic material may be used, but only to the extent that it still confirms the textualist interpretation. Kirby J in the case of Kartinyeri v Commonwealth eloquently stated: “The duty of the Court is to the Constitution. Neither the Court, nor individual Justices, are authorized to alter the essential meaning of that document ... It is the text (with its words and structure) which is the law to which the Court owes obedience. This emphasis upon the text of the document is beneficial”. In the situation of uncertainty with a provision whose meaning is outdated or not currently relevant the “subject to the text and structure of the Constitution...should be interpreted flexible and purposively”. There is a particular emphasis on reading of explicitly conveyed Commonwealth powers widely in the constitution, without regards to the context in which they apply.
Although generally a more textual approach to interpretation is favoured within the High Courts, certain implied rights have been deduced from the constitution. These rights include that of freedom of political speech in Lange v Australian Broadcasting Corporation and the right to due process in Kable v Director of Public Prosecutions. On a practical basis a textual approach...