Constitutional Interpretation
Early Developments – Engineers
Approaches to Constitutional Interpretation
Originalism/Intentionalism
- ‘Overriding duty of the court is to give effect to the intentions of those who formulated the constitution’ – NSW v Cth (Corporations Case) (1990)
- Allowed court to look at convention debates to ascertain original meaning of language in constitution
- BUT: the plain meaning of the constitution can not be substituted with the subjective intentions of the drafters or the Convention debates
- Cole v Whitfield (1988)
- Does this imply being ‘ruled by the dead hand of the past’?
Textualism
- Finding the original meaning of the text
- Words should be given their natural and ordinary meaning
- Implied terms accepted by the High Court must come from within the text / structure and context of the Constitution
- "duty of this court faithfully to expand and give effect to it (Constitution) according to its own terms, finding the intention from the words of the compact, and upholding it throughout precisely as framed" (Knox, Isaacs, Rich and Starke )
- "its only duty, is to expound the language of the Act in accordance with the settled rules of construction"
- "the settled rules of construction"
1. focus on the express terms on the words of the Constitution
2. focus without prior assumptions
3. interpret Commonwealth powers fully according to the ordinary meaning of the words
- Read in the language of the statute in what seems to be its natural sense looking to the terms of the instrument where powers are created and restricted, "if the text is explicit the text is conclusive"
- Engineers (1920) 28 Common LawR 129
Contemporary Meaning
- Deane J: embraces the notion of the ‘living force’ of the Constitution
- Representing the will and intentions of all contemporary Australians
- Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104
Characterisation
Generally
- A valid law must be capable of being characterised as being within a Cth head of power - Fairfax v Federal Commissioner of Taxation (1965)
- Involves (a) determination of limits of subject matter (b) determination of whether law is within those limits - Bank Nationalisation Case (1948)
- Legislative power is plenary within each granted area of subject matter – Bank Nationalisation Case (1948) per Dixon J
- The terms ‘peace, order and good government’ do not limit the heads of power -Union Steamship Co of Australia v King (1988)
- Powers granted in the Constitution should be understood in a broad and general way – Bank Nationalisation Case (1948) per Dixon J
- If the constitution gives the Commonwealth the power to make laws with respect to an activity, it is within the power for the Commonwealth to prohibit that activity altogether - Bank Nationalisation Case (1948) per Dixon J
- Statutory declaration cannot deem a law to be within power. There must be a judicial process to determine whether or not it is actually within power - Deputy Federal Commissioner of Taxation v Brown
- BUT, if construction of act is ambiguous, statutory declarations may be considered -Leask v Commonwealth
- Deeming clauses are invalid – Re F, ex parte F (1986)
- Attempted to deem an ex-nuptial child a ‘child of marriage’
Subject matter approach – non-purposive powers
- Approach outlined by McHugh in Re Dingjan; Ex parte Wagner (1995)
(1) Determine character of the law
(2) Can the law be connected to head of power?
(3) Is this connection too tenuous?
Character and connection
- Characterise law with reference to what the law does in “creating, changing, regulating, or abolishing rights, duties, powers or privileges” - Bank Nationalisation Case (1948); First Uniform Tax Case (1942)
- The ‘consequential effects’ are irrelevant for this purpose – First Uniform Tax Case
- Purpose or motivation behind a law in generally irrelevant - Murphyores (1976)
- Even though the law had environmental motives in imposing prohibitions on exports (discretion to lift prohibitions involved environmental considerations), it was still essentially a law with respect to the export of goods
- Validity of a law should be tested by reference to its substantial operation, if its substance can be characterised under a head of power, it is valid – once it appears that the law has “an actual and immediate operation within a field assigned … as a subject of legislative power, that is enough” – Fairfax v Federal C of Tax (1965)
- The law’s connection with the power may be determined, not merely from its legal terms and operation , but from its practical operation - Cunliffe v Cth (1994), Cth v Tasmania (1983), Herald & Weekly Times Ltd v Cth (1966)
- Court unconcerned with substance of law in terms of ‘motives, purpose or policy’ - Osburne v Cth (1911)
- The fact that the legislation purported to control the ownership of land does not make it outside the taxation power
- Where the end falls within the subject matter of the power, the means adopted, so long as they are capable of achieving that end, are for the legislature to decide
- Burton v Honan (1952) per Dixon J; Herald & Weekly Times v Cth (1966) per Kitto J;
- Proportionality is not irrelevant to the prima facie characterisation of a non-purposive law – Leask v Cth (1996) per Dawson J
- Dual characterisation – it is enough that a law may be characterised under one given subject matter, regardless of whether it can be equally characterised under other subject matters – Actors and Announcers Equity Association v Fontana Films (1982)
- It is no objection that a law “touches or effects a topic which the Cth has no power to legislate” - Murphyores
Is the connection tenuous?
- The prima facie connection between the law and the grant of power is sufficient unless it is ‘so insubstantial, tenuous or distant’ that it cannot be described as being made with respect to that head of power - Melbourne Corporation (1947) per Dixon J
- Connection must be a substantial and not merely tenuous one – cannot use head of power as launch pad for other activities having only indirect effect on subject matter - Re Dingjan; Ex Parte Wagner (1995) per Brennan J
- Notions of desirability and proportionality are not relevant to the sufficiency of this connection – Leask v Cth (1996) per Dawson J
Purposive powers
- If the head power is a purposive one (eg defence power), a connection can be established by comparing the purpose of the law and the purpose of the power - Leask v Commonwealth (1996)
Uncertainty about relevance of motive
- Motives of parliament and purpose of law are relevant if legislative power granted is purposive (eg defence power) - Murphyores Inc Pty Ltd v Commonwealth (1976)
- Purpose of law refers to end or objective the legislation serves, not the underlying motive - Kruger v Commonwealth
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Continued
Incidental powers
-
There is a general doctrine of implied incidental power at common law,
giving power to legislate on matters incidental to the subject matter
of a head of power
- There is also an express incidental power
provided by s 51 (xxxix) giving power to legislate with respect to
matters incidental to the execution of powers vested
- Note that these powers are distinct
Implied incidental power
-
General principle at common law – “where any power or control is
expressly granted, there is included in the grant … every power and
every control the denial of which would render the grant itself
ineffective” – D’Emden v Pedder (1904);
- Must be a sufficient connection - O’Sullivan v Noarlunga Meat (1954) per Fullagar J
-
‘With respect to’ - extends powers broadly where there is a relevance
or connection to the subject matter - Grannall v Marrickville Margarine
(1955)
- Implied incidental matter extends to matters ‘found
necessary to effectuate its main purpose’ (of the power conferred) -
Grannall v Marrickville Margarine (1955)
- ‘It is enough that
the provision is appropriate to effectuate the exercise of the power;
one is not confined to what is necessary’ – Nationwide News v Wills
(1992)
- Must be a real connection (not sufficient that it
‘touches or concerns’ the subject matter) - Grannall v Marrickville
Margarine (1955)
- Example: The grant of power over
interstate trade and commerce does not incidentally include ‘power to
legislate for intrastate trade and commerce when its only relationship
to interstate trade and commerce lies in the fact that the purpose of
engagement in such intrastate activity is to conduce to the efficiency,
competitiveness, and profitability of the interstate activity’ - A-G
(WA) v ANA Commission (1976) per Stephen J
- Use of the
incidental power may be rejected if found to be disproportionate, it
must be reasonably and appropriately adapted to the pursuit of an end
within power – that is it must be reasonably proportionate – Nationwide
News v Wills (1992) per Mason CJ
- Incidental powers still subject to freedoms and prohibitions in Constitution - Grannall v Marrickville Margarine (1955)
Express incidental power
-
s 51 (xxxix) – gives power to legislate with respect to “matters
incidental to the execution of any power vested by this Constitution in
the Parliament … or in the Government of the Cth, or in the Federal
Judicature, or in any department or officer of the Cth”
-
Confined to matters incidental to existing powers - enhances mode of
execution of power (the implied incidental power enlarges the topic
area over which legislation can be passed)
Davis v The Commonwealth (1988) 166 CLR 79
-
Facts: Committee set up to organise Bicentennial celebrations, they
passed the Australian Bicentennial Authority Act 1980 that restricted
the use of any terms or logos associated with the Bicentenary. Davis
wanted to use the term 200 years and the Authority refused his request
to do so. Davis appealed on the grounds that the law was invalid.
- Mason CJ, Deane and Gaudron JJ held:
- s 51 (xxxix) enables parliament to legislate in aid of an exercise of executive power
-
Consequences of this include: executive power extends to the
incorporation of such a commercial Authority to program celebrations
rather than a government body.
- s 51 (xxxix) can not
circumvent other restrictions in the Constitution - the High Court said
that these restrictions were an intrusion on freedom of expression
- Also s 51 (xxxix) is related to execution and not subject matter.
-
“Judgement made it clear that if a regulatory provision is reasonably
incidental, or proportionate, to the Commonwealth’s legitimate national
purpose, that provision can validly be enforced by a criminal sanction.”
Proportionality
- An inquiry into the proportionality of a law involves value judgments of its reasonableness and appropriateness
- Relevant in a number of areas
o Determination of breaches of constitutional guarantees
o The direct scope of purposive powers
o A factor to be taken into account within the incidental power
-
Purposive criteria can only be invoked in cases where characterisation
depends on purpose, eg for purposive powers (eg defence) and cases
relying on the incidental power - Cunliffe v Commonwealth (1994)
Purposive powers
-
If the head power is a purposive one (eg defence power), law may be
invalid if the legislation is not reasonably proportionate to achieving
the purpose of that power - Leask v Commonwealth (1996) per Dawson J
- ‘the court may have to inquire whether the law goes further than is necessary to achieve the purpose’
Incidental power
Nationwide News v Wills (1992)
- A
law only falls within the incidental scope if it is capable of being
considered to be reasonably proportionate – reasonably and
appropriately adapted – to the pursuit of its end
- Necessary to
consider to what extent the law goes beyond what is reasonably
necessary or conceivably desirable to achieve the legitimate object
Leask v Commonwealth (1996)
-
‘The disproportion of the law to an end asserted to be within power may
suggest that the law is actually a means of achieving another end which
is beyond power’
- Yet, the terms ‘appropriate and adapted’ and
‘reasonable proportionality’ are best avoided when enunciating a test
to determine whether a law exceeds a non-purposive head of power
-
If a sufficient connection is established, ‘it matters not how
ill-adapted, inappropriate or disproportionate a law is or may be
thought to be’ - Cunliffe
Severance and reading down
- Applicable when statute:
o cannot be characterised under a head of power
o contravenes some express or implied limitation
-
When something can be severed or read down, it should be – s 15a Acts
Interpretation Act (1901) (not an imperative rule of law, only request)
Reading down
-
Where act is so general as to apply to matters beyond the
Commonwealth’s power, the court can read it down so that it falls
within a head of power
- If the court is faced with more than one way to read down a statute to make it valid, it will decline to read down
Hindmarsh Island Case (1997)
- Act conferred powers upon a ‘person’ incompatible with the functions of a judge
- The word ‘person’ was read down to mean ‘person that is not a judge’
Railway Servants Case
- If legislative intention against reading down, then it can’t be done
- Explicit reference to state railways meant act couldn’t be read down to include them
-
Reading down must result in a ‘consistent and effective body of
provisions’ - Strickland v Rola Concrete Pipes per Barwick CJ
Severance
- If court is unable to read down, it should try to sever the offending provision, and read the statue as if it was not there
-
If severing would have the effect of creating a new law, the court will
not sever the provision (as to sever would be to undertake a
legislative role)
- Can’t sever if to do so would make a substantial difference or a new law altogether
- Can only sever if the language requires only an excision, not a substitution of words
Australian National Airways v Cth (1945)
-
Unless an intention affirmatively appears to the contrary, the
provisions of a statute are to be taken as independent of one another
and not interdependent – following s 15A of Acts Interpretation Act
- Cth legislation sought to (a) establish an airline; (b) give that airline a monopoly
- Sections giving rise to (a) were capable of full operation without (b)
- Therefore the act was severable
Precedent and overruling
- Australian courts are bound by decisions of the High Court (stare decisis), except the High Court itself
-
High Court is not bound by its own decisions – Australian Agricultural
Co v Federated Engine-Drivers & Firemen’s Association
(Engine-Driver’s Case) (1913)
- Court should reconsider
previous decision only with great caution and for strong reasons -
Hughes & Vale Pty Ltd v New South Wales (1953) per Kitto J
-
Will re-open decision if it involves a question of ‘vital
constitutional importance’ - Queensland v The Commonwealth (1977)
- Re-open if the decision is manifestly wrong – Engine-Driver’s Case (1913)
- Matters which may justify departure from previous decision – Cth v Hospital Contribution Fund (1982)
o Earlier decision did not rest upon a sound principle expounded in a significant succession of cases
o Difference between the reasoning of the justices constituting the majority
o Earlier decision had led to no useful result or considerable inconvenience
o Earlier decision had not been independently acted on in a manner that militated against consideration
-
High Court should not adhere to precedent to divert it from what it now
regards as “the true intent of the statute” – John v Federal
Commissioner of Taxation (1989)