Constitutional Law Australia - Interpretations

Topics: Australia, Separation of powers, High Court of Australia Pages: 13 (4001 words) Published: October 13, 2010
Constitutional Interpretation: Engineers’ Case and criticisms of Callinan J in the Workchoices’ Case. By Mark Walker
Introduction

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.

Human Rights

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...


Bibliography: Cases
Abebe v Commonwealth (1999) 197 CLR 510
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) CLR 129.
Australian Boot Trade Employees’ Federation v Whybrow & Co (1910) 11 CLR 311.
Australian Communist Party v Commonwealth (1951) 83 CLR 1.
Baxter v Commissioners of Taxation (1907) 4 CLR 1087.
Cheng v The Queen (2000) 203 CLR 248.
Commonwealth v Tasmania (1983) 158 CLR 1.
D’Emden v Pedder (1904) 1 CLR 91.
Dugan v Mirror Newspapers Ltd (1979) 142 CLR 583.
Eastman v Queen (2000) 203 CLR 1.
Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254.
Kable v Director of Public Prosecutions (1996) 138 ALR 577.
Lange v Australian Broadcasting Corporation (1997) 145 ALR 96.
Mabo v Queensland [no 2] (1992) 175 CLR 1.
Melbourne Corporation v Commonwealth (1947) 74 CLR 31.
New South Wales v Commonwealth 2006) 229 CLR 1.
Port McDonnell Professional Fishermens’ Assoc Inc v South Australia (1989) 168 CLR 340.
Printz v United States 521 US 898 (1997).
R v Burah [1878] 3 AC.
R v Phillips (1970) 125 CLR 93.
Re Nolan; Ex parte Young (1991) 172 CLR 460.
Richardson v Forestry Commission (1988) 164 CLR 261.
Russel v Russel (1976) 134 CLR 495.
Secondary Sources
Christopher Birch, ‘Mill, Frege and the High Court: The connotation/denotation distinction in constitutional interpretation’ (2003) 23 Australian Bar Review 296.
Tony Blackshield and George Williams, Australian Constitutional Law: Law and Theory (The Federation Press, 5th ed: 2010).
Peter Butt, Butterworths Concise Australian Legal Dictionary (LexisNexis Butterworths, Australia: 3rd ed, 2004).
Susan M Crennan, ‘Scepticism and Judicial Method’ (2008) 82 ALJ 169.
Harry Evans, ‘The Failure of law and the superiority of politics: republicanism versus legal constitutionalism’ (2005) 8 Law and Policy Review 3.
Stephen Gagelerm, ‘Beyond the text’ (2009) 32 Australian Bar Review 138.
Hon Justice W M C Gummow, ‘Form or Substance’ (2008) 30 Australian Bar Review.
Mason, ‘The Role of a Constitutional Court in a Federation’ (1986) 16 FL Rev 1.
Muller, ‘Public Choice II’ (1991) Cambridge UP 331.
Murray Gleeson, ‘The constitutional decisions of the Founding Fathers’ (2007) 81 Australian Law Journal 791.
Paul Grice, ‘Studies in the Way of Words’ (1991) Harvard University Press.
Cheryl Saunders, ‘Interpreting the Constitution’ (2004) 15 PLR 289.
Sharman, ‘Secession and Federation’ (1993) 3 UTAC 97.
JJ Spigelman, ‘The poet’s rich resource: Issues in statutory interpretation’ (2001) 21 Australian Bar Review 224.
Prof Emeritus Geoffrey De Q Walker, ‘Seven Pillars of Centralism: Engineers’ Case and Federalism’ (2002) 76 Australian Law Journal 678,
Hon Jusitce Christine Wheeler, ‘Shifting sands: Implications and the consitition’ (2007) 81 Australian Law Journal 544.
[ 3 ]. (1920) CLR 129.
[ 4 ]. New South Wales v Commonwealth (“Workchoices’ Case”) (2006) 229 CLR 1, 305.
[ 5 ]. Peter Butt, Butterworths Concise Australian Legal Dictionary (LexisNexis Butterworths, Australia: 3rd ed, 2004).
[ 6 ]. Workchoices’ Case (2006) 229 CLR 1, 305.
[ 8 ]. (1904) 1 CLR 91.
[ 9 ]. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (“Engineers’ Case”) (1920) CLR 129, 145.
[ 12 ]. Justice B M Selway, ‘Methodologies of constitutional interpretation in the High Court of Australia’ (2003) 14 Public Law Review 234, 239.
[ 14 ]. Abebe v Commonwealth (1999) 197 CLR 510, 531 [41] by Gleeson CJ & Mchugh J.
[ 15 ]. Commonwealth v Tasmania (1983) 158 CLR 1, 361 by Dawson J.
[ 16 ]. (1997) 145 ALR 96.
[ 17 ]. (1996) 138 ALR 577.
[ 18 ]. Hon Jusitce Christine Wheeler, ‘Shifting sands: Implications and the consitition’ (2007) 81 Australian Law Journal 544 at 551.
[ 20 ]. Workchoices’ Case (2006) 229 CLR 1, 306.
[ 22 ]. Murray Gleeson, ‘The constitutional decisions of the Founding Fathers’ (2007) 81 Australian Law Journal 791, 793.
[ 24 ]. Australian Boot Trade Employees’ Federation v Whybrow & Co (1910) 11 CLR 311, 314.
[ 26 ]. Re Nolan; Ex parte Young (1991) 172 CLR 460, 496.
[ 28 ]. (2000) 203 CLR 1, 44, 81.
[ 29 ]. Engineers’ Case (1920) CLR 129, 151.
[ 31 ]. Prof Emeritus Geoffrey De Q Walker, ‘Seven Pillars of Centralism: Engineers’ Case and Federalism’ (2002) 76 Australian Law Journal 678, 703.
[ 32 ]. Stephen Gagelerm, ‘Beyond the text’ (2009) 32 Australian Bar Review 138, 140.
[ 34 ]. Walker, above n 26, 689; with reference to Russel v Russel (1976) 134 CLR 495, 539 [21]-[23] by Zines J.
[ 35 ]. Baxter v Commissioners of Taxation (1907) 4 CLR 1087, 1105.
[ 36 ]. Cheng v The Queen (2000) 203 CLR 248, 321-322 as per Kirby J.
[ 38 ]. Australian Communist Party v Commonwealth (1951) 83 CLR 1, 262-263.
[ 39 ]. Tony Blackshield and George Williams, Australian Constitutional Law: Law and Theory (The Federation Press, 5th ed: 2010), 9.
[ 40 ]. Engineers’ Case (1920) CLR 129 at 151-152.
[ 41 ]. Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254.
[ 43 ]. Workchoices’ Case (2006) 229 CLR 1 at 305.
[ 44 ]. Mabo v Queensland [no 2] (1992) 175 CLR 1 at 42.
[ 47 ]. Melbourne Corporation v Commonwealth (1947) 74 CLR 31, 79.
[ 50 ]. Christopher Birch, ‘Mill, Frege and the High Court: The connotation/denotation distinction in constitutional interpretation’ (2003) 23 Australian Bar Review 296, 308.
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