¹ Attorney-General (Cth); ex rel McKinlay v Commonwealth (1975) 135 CLR 1, at 17 per Barwick CJ, at 47 per Gibbs J; Attorney-General (Cth) v T & G Mutual Life Society Ltd (1978) 52 ALJR 573, at 583 per Aickin J; Attorney-General (Vic); ex rel Black v Commonwealth (1981) 146 CLR 559, at 578 per Barwick CJ, at 167 per Gibbs J. See Brazil, P, “Legislative History and the Sure and True Interpretation of Statutes in General and the Constitution in Particular” (1961) 4 UQLJ 1Google Scholar; Thomson, J, “Constitutional Interpretation: History and the High Court: A Bibliographical Survey” (1982) 5 UNSWLJ 309Google Scholar; Coper, M, “The Place of History in Constitutional Interpretation” in G Craven (ed), The Convention Debates 1891-1898: Commentaries, Indices and Guide (1986) 5Google Scholar; Burmester, H, “The Convention Debates and the Interpretation of the Constitution” in G Craven (ed), The Convention Debates 1891-1898: Commentaries, Indices and Guide (1986) 25Google Scholar; McCamish, C, “The Use of Historical Materials in Interpreting the Commonwealth Constitution” (1996) 70 ALJ 638Google Scholar.

² Thus the Court's literalism and legalism has influenced the nature of extrinsic material that could be consulted. Note also that there are other arguments for rejecting historical materials such as the lack or inaccessibility of such material, as well as the difficulty of establishing such an intention due to the different opinions voiced in the course of the debates, the fact that the debates are silent on many issues and that in a number of instances the enactments were compromises.

³ The exception was confined to the draft bills of 1891, 1897 and 1898. Tasmania v Commonwealth (1904) 1 CLR 329 at 333 per Griffith, CJ; Seamen's Union of Australia v Utah Development Co (1978) 53 ALJR 83 at 92Google Scholar per Stephen J.

⁴ Municipal Council of Sydney v Commonwealth (1904) 1 CLR 208, at 213-4 per Griffith CJ.

⁵ Craven, G, “The Crisis of Constitutional Literalism in Australia” in H P Lee anc G Winterton (eds), Australian Constitutional Perspectives (1992) 1CrossRefGoogle Scholar.

⁶ Cole v Whitfield (1988) 165 CLR 360 at 385.

⁷ New South Wales v Commonwealth (1990) 169 CLR 482.

⁸ See G Craven, above n 5 at 22.

⁹ Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Nationwide New: Pty Ltd v Wills (1992) 177 CLR 1; Theophanous v Herald and Weekly Times Ltd (1994) 182 CL 104; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; Cunliffe v Commonwealth (1994) 182 CLR 272.

¹⁰ The founders' understanding of federalism is explored by Warden, J, “Federalism and the Design of the Australian Constitution” (1992) 27 AJPS 143Google Scholar. For writings on the history o particular sections see generally J Thomson, above n 1, Appendix A.

¹¹ The exceptions to this concern the changes made in London in 1900 especially regarding appeals to the Privy Council. See La Nauze, J, The Making of the Australian Constitution (1972) ch 16Google Scholar. For accounts of federation by the founders or their contemporaries see Quick, J and Garran, R, The Annotated Constitution of the Commonwealth of Australia (1901)Google Scholar; Deakin, A, The Federal Story (1944)Google Scholar; Moore, W H, The Constitution of the Commonwealth of Australia (2nd ed 1902)Google Scholar; Wise, B, The Making of the Australian Commonwealth (1913)Google Scholar. For a more contemporary account see Crisp, L, Federation Fathers (1988)Google Scholar.

¹² For example, the resolutions proposed by Parkes at the Sydney Convention in 1891.

¹³ A Deakin, above n 11 at 45 stated that the question of responsible government and the Senate veto over money bills “severed the Convention into two camps”. See also B Wise, above n 11 at 125; J La Nauze, above n 11 at 43 and 139-160.

¹⁴ According to Hackett there were two alternatives – “either responsible government will kill federation or federation in the form in which we shall, I hope, be prepared to accept it, will kill responsible government”: Volume 1, Official Record of the Proceedings and Debates of the Australasian Federal Convention, (Convention Debates) Sydney, 1891, 280.

¹⁵ Cockburn, , Convention Debates, Sydney, 1891, 198Google Scholar.

¹⁶ See Galligan, B, “Parliamentary Responsible Government and the Protection of Rights” (1993) 4 PLR 100Google Scholar.

¹⁷ Some commentators include in this list equal voting rights (ss 24, 25), the right to vote,(s 41), freedom of interstate trade (s 92), non-discrimination regarding Commonwealth, taxes and bounties (ss 51(ii), 51(iii) as well as ss 86, 88 and 90), the inconsistency provisiorn (s 109) and the full faith and credit requirement (s 118). See the judgment of Deane, J in Street v Queensland Bar Association (1989) 168 CLR 461 at 521Google Scholar, where he endorses such a1 wider reading of rights.

¹⁸ See, however, Howard, M and Warden, J (eds), An Australian Democrat: The life, work and consequences of Andrew Inglis Clark (1995)Google Scholar; J Warden, above n 10; Galligan, B, “Judiciall Review in the Australian Federal System” (1979), 10 FLR 367 at 374-378CrossRefGoogle Scholar; Ely, R, “Andrew Inglis Clark and the Church-State Separation” (1975) 8 Journal of Religious History 271CrossRefGoogle Scholar; J Lai Nauze, above n 11; Neasey, J, “Andrew Inglis Clark Senior and Australian Federation” (1969) 15 Australian Journal of Politics and History lCrossRefGoogle Scholar; Reynolds, J, “A. I. Clark's American Sympathies and his Influence on Australian Federation"(1958) 32 AL/ 62Google Scholar; Williams, J, “With Eyes Open: Andrew Inglis Clark and Our Republican Tradition” (1995) 23 FL RevGoogle Scholar

¹⁹ A copy of the draft may be found in J Reynolds, above n 18 at 67-75.

²⁰ J Neasey, above n 18 at 7-8. Neasey also provided a useful comparative table comparing Clark's Bill with its Canadian and American equivalents.

²¹ Clark cited in J Neasey, above n 18 at 8.

²² He visited the United States in 1890, 1897-8, and again in 1902-3.During his first trip he met Oliver Wendell Holmes Jr who was very influential on his thinking. Holmes also introduced him to a number of professors at Harvard. See J Reynolds, above n 18 at 65-66.

²³ A Deakin, above n 11 at 30.

²⁴ J Reynolds, above n 18.

²⁵ Clause 17 read: “A State shall not make or enforce any law abridging any privileges of citizens of other States, nor shall a State deny to any person within its jurisdiction the equal protection of the laws”.

²⁶ See the discussion below of the drafting history of s 117 as well as J La Nauze, above n 11 at 227-231. J Thomson, “Andrew Inglis Clark and Australian Constitutional Law” in M Howard and J Warden (eds) above n 18 at 69-72, argues that Clause 59 of Clark's Bill, which vested judicial power in the High Court and the federal courts constituted in effect a prohibition on Commonwealth ex post facto criminal laws. See also Neasey, F, “Andrew Inglis Clark and Federation after 1891” in M Howard and J Warden (eds) above n 18 at 40Google Scholar.

²⁷ J La Nauze, above n 11 at 227, refers in particular to the guarantees against the quartering, of soldiers and cruel and unusual punishment.

²⁸ J Thomson, above n 26 supports this interpretation.

²⁹ The Tasmanian amendment read: “The citizens to each State, and all other persons owing allegiance to the Queen and residing in any territory of the Commonwealth shall be, citizens of the Commonwealth, and shall be entitled to all the privileges and immunities ofl the citizens of the Commonwealth in the several States, and a State shall not make or1 enforce any law abridging any privilege or immunity of the citizens of the! Commonwealth, nor shall a State deprive any person of life, liberty, or property without! due process of law, or deny to any person within its jurisdiction the equal protection of the laws”. Convention Debates, Melbourne, 1898, 664-691. See also J La Nauze, above n 11 at 231.

³⁰ See H Storing,What the Anti-Federalists Were For (1981) at 64-70; Tribe, L, American Constitutional Law (2nd ed 1988)Google Scholar.

³¹ As late as the Slaughter-House cases, 83 US (16 Wall) 36 (1873), the Court held that lawE enacted by the Louisiana legislature establishing a slaughterhouse monopoly did nol violate the Fourteenth Amendment's privileges and immunities clause.

³² L Tribe, above n 30 at 560-586. The so called “Lochner era,” according to Tribe, “reigned ir the period beginning around the turn of the century with Allgeyer and ending by th( middle of the 1930's with West Coast Hotel v Parrish”: ibid at 567. Which is not to deny tht importance of natural law arguments: see L Tribe, ibid at 560-567.

³³ It became more and more important in the course of the convention debates for the founders to demonstrate their knowledge of comparative constitutional law and ir particular that of the United States.

³⁴ For reference to Bryce in the Convention debates see, for example, Convention Debates, Sydney, 1891, 147 (Rutledge), 210 (Brown), 545 (Baker), 597 (Kingston); Convention Debates,Sydney, 1897, 56 (Deakin); Convention Debates, Melbourne, 1898, 374 (Symon).

³⁵ In J La Nauze, above n 11 at 19. Deakin had met Bryce in London in 1887 and rated the American Commonwealth in these terms: “As a text-book for the philosophic study of constitutional questions it takes its place in the very first rank”.

³⁶ J La Nauze, ibid at 87.

³⁷ Ibid at 273. La Nauze described the work in these terms: “It was quoted or referred to more than any other single work; never criticised, it was regarded with the same awe, mingled with reverence, as the Bible would have been in an assembly of churchmen”. There was no comparable work on the Canadian federation.

³⁸ For Bryce's notion of federalism in general see J Warden, n 10 above.

³⁹ According to Bryce the notion of flexible and rigid constitutions was intended to replace the previous distinction between written and unwritten constitutions. See Bryce, J, Studies of History and Jurisprudence (1901), at 145-254Google Scholar.

⁴⁰ Bryce, J, The American Commonwealth (2nd ed 1919) at Vol 1,367Google Scholar.

⁴¹ Ibid at 368. He argued that they were “indispensable to the reconstruction of the Federal system”.

⁴² Ibid at 438.

⁴³ Ibid.

⁴⁴ Ibid.

⁴⁵ Bryce, J, Studies of History and Jurisprudence at 502-3Google Scholar. See also Pannam, C, “Travelling Sectiorn 116 with a U.S. Road Map” (1963) 4 MULR 41 at 46-7Google Scholar. According to Bryce, Canada andl Australia followed the English model: “So when Englishmen in Canada or Australia enact! new Constitutions, they take no heed of such matters, and make their legislature as like the. omnipotent Parliament of Britain as they can”: ibid at 502. The exception in the Australian case “which recalls the old-fashioned Bill of Rights” was section 116. For a discussion of the Canadian case see Risk, R and Vipond, R, “Rights Talk in Canada in the Late Twentietl-Century: 'The Good Sense and Right Feeling of the People"' (1996) 14 Law and Histo'!,, Review 1CrossRefGoogle Scholar.

⁴⁶ J Bryce, above n 40 at 345.

⁴⁷ This was consistent with federalism and democracy according to Bryce. This was the natural process from the “maladies of youth” to the “settled health of manhood”. Bryce, ibic at 339-340.

⁴⁸ The states allow for “safe” experimentation and diversity, just like so many water-tight compartments in a ship: Bryce, ibid at 350-355.

⁴⁹ J La Nauze, above n 11 at 20. See for example Convention Debates, Sydney, 1891, 105 (Downer), 198 (Cockburn); Convention Debates, Adelaide, 1897, 307 (M Clarke), 911 (Barton); Convention Debates, Melbourne 1898,1686 (Gordon), 1686 (Wise), 1897(Isaacs).

⁵⁰ Dicey, AV, Introduction to the Law of the Constitution (8th ed [1915] 1982) at 107-122Google Scholar.

⁵¹ For more recent and well known instances see SirDixon, Owen, “Address at the Annual Dinner of the American Bar Association” (1942) 16 AL/ 192Google Scholar; Menzies, R, Central Power in the Commonwealth (1967)Google Scholar.

⁵² Quick represented Victoria in the 1897-98 Conventions and Garran was secretary of theDrafting Committee. See for example the dismissive reference in the discussion of section 116: “The prohibition contained in the first amendment was one of the ten articles in the so-called 'American Bill of Rights' adopted after the establishment of the Union, in order to satisfy popular demands and sentiments” : J Quick and R Garran, above n 11 at 952.

⁵³ Ibid at 957.

⁵⁴ W H Moore, above n 11 at 612-16.

⁵⁵ Section 51(xxxi) provides: “The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: – The acquisition of property on just terms from any State or person for any purpose in respect of which The Parliament has power to make laws”.

⁵⁶ Convention Debates, Melbourne, 1898, 151. Wise had noted the need for such a provision in the Adelaide Convention: “I do not think there is power either expressly or impliedly given, to construct within the boundaries of any State such public works with the consent of that State as may be for the common advantage of the whole Commonwealth”: Convention Debates, Adelaide, 1897, 1199.

⁵⁷ Convention Debates, Melbourne, 1898 152.

⁵⁸ Ibid at 151.

⁵⁹ Ibid at 153.

⁶⁰ Isaacs requested further time on the grounds that a compulsory acquisition power potentially against the will of the state reversed the principle that “a state should not be compelled to give up its territory”: ibid.

⁶¹ Convention Debates, Melbourne, 189 1874.

⁶² See s 65 of Clark's original draft in J Reynolds, above n 18 at 73. See also Pannam, C, “Trial by Jury and Section 80 of the Australian Constitution” (1968) 6 Syd LR 1 at 1, 2-4Google Scholar.

⁶³ Ch. III, cl 11; Convention Debates Sydney, 1891 958.

⁶⁴ Convention Debates, Melbourne, 1898 353, 1895.

⁶⁵ Convention Debates, Adelaide, 1897 991.

⁶⁶ Convention Debates, Melbourne, 1898 350, 353.

⁶⁷ “It does not interfere with the right of every state to alter its laws and to deprive its citizens of their liberty of being tried by a jury of their fellow countrymen, but it does say that the Federal parliament shall be compelled to submit any person accused of a breach of the federal laws to trial before a body of his own fellow citizens in the state to which he belongs”. Convention Debates, Melbourne, 1898, 350.

⁶⁸ Ibid at 351.

⁶⁹ Ibid at 1894-5

⁷⁰ See R Ely, Unto God and Caesar: Religious Issues in the Emerging Commonwealth 1891-1906 (1976); McLeish, S, “Making Sense of Religion and the Constitution: A Fresh Start for Section 116” 18 Monash University Law Review 207Google Scholar; and the references in J Thomson, above n 1 at 326.

⁷¹ The original section read “A State shall not make any law prohibiting the free exercise of any religion”. See Convention Debates, Sydney, 1891, 962; Convention Debates, Adelaide, 1897,1004.

⁷² Convention Debates, Melbourne, 1898, 654.

⁷³ Though initially unsuccessful, Glynn's proposal to recognise the Almighty in the preamble was adopted by the Convention. As he noted in his diary (cited in R Ely, above at n 70 at 74) “Today I succeeded in getting the words 'Humbly relying on the Blessing of Almighty God' inserted in the preamble. It was chiefly intended to secure greater support from a large number of voters who belie[ve] in the efficacy for good of this formal act of reverence and faith”. See also S Mcleish, above n 70 at 218-9.

⁷⁴ See R Ely, above n 70 at 21-30.

⁷⁵ Ibid at 656. He did, however, indicate that same safeguard in the Constitution might be necessary if the recent trend in governmental interference in economic matters was extended to other areas.

⁷⁶ Ibid at 657. He had in mind such practices as “suttee” which he called “simply murder”.

⁷⁷ Ibid at 660, 662. This faith in the progressive nature of civilisation was questioned by Barton who raised the possibility of “throwing back” - his specific reference was to th revival of sumptuary laws but he did suggest that it might be useful to preserve the fre exercise of religion in the Constitution.

⁷⁸ Ibid at 659. “We are living in a very advanced age not in medieval times”.

⁷⁹ “ d at 664.

⁸⁰ ibid at 1769. Higgins referred to a decision of the Supreme Court of the United States that suggested that America is a Christian country. However, as Pannam, C, “Travelling Section 116 with a U.S. Road Map” (1963) 4 MULR 41 at 53Google Scholar noted, the Court's decision, which presumably wasThe Church of the Holy Trinity v United States 143 US 457 (1882), did not support this view.

⁸¹ Ibid at 1769-79.

⁸² :i at 1771.

⁸³ Ibid. Barton stated that such practices might be controlled by the Commonwealth under its, emigration, naturalisation and race powers. See also the references by Fraser to1 “homogeneous people”: ibid at 1775.

⁸⁴ Ibid at 1776. See, however, Wise's concern that “we have seen in our own time a1 recrudescence of that evil demon, which I fear, is only scotched and not killed. At any rate,, the period during which we have enjoyed religious liberty is not long enough for us to be able to say with confidence that there will be no swinging back of the pendulum to the spirit of the times from which we have only recently emerged”: ibid at 1773.

⁸⁵ The text of the Bill that was agreed to but not discussed at the Conventions unti)I Melbourne read: “A State shall not make or enforce any law abridging any privilege or immunity of citizens of other States of the Commonwealth, nor shall a State deny to any person, within its jurisdiction the equal protection of the laws”. The relevant provisions in the American Constitution are Art IV, section 2: “The Citizens of each State shall be entitled to all the Privileges and Immunities of Citizens in the several States”; and the Fourteenth Amendment, the first section: “All persons born or naturalised in the United States, an subject to the jurisdiction thereof, are citizens of the United States and of the State wherei they reside. No State shall make or enforce any law which shall abridge the privileges o immunities of citizens of the United States; nor shall any State deprive any person of hfe liberty or property, without due process; nor deny to any person within its jurisdiction th equal protection of the laws”. See Pannam, C, “Discrimination on the Basis of Stat Residence in Australia and the United States” (1967) 6 MULR 105 at 105-116Google Scholar.

⁸⁶ Section 117 reads : “The subject of the Queen, resident in any State, shall not be subject iany other State, to any disability or discrimination which would not be equally applicabl to him if he were a subject of the Queen resident in such other State”.

⁸⁷ Convention Debates, Melbourne, 1898, 666.

⁸⁸ Isaacs in particular was not persuaded that Wise could call such measures privileges and immunities and, under questioning, Wise had considerable difficulty in using this terminology: ibid at 671.

⁸⁹ Ibid at 675.

⁹⁰ Ibid at 677.

⁹¹ Ibid at 680.

⁹² He refers to the Slaughter House cases as well as Strauder v State of West Virginia 100 US 303 (1879).

⁹³ Convention Debates, Melbourne, 1898 665.

⁹⁴ Ibid at 675.

⁹⁵ O'Connor argued that the privileges and immunities clause would be unnecessary becausE the federal government would be able to legislate on “aliens and coloured races”. Barton supported his proposed amendment to provide for due process and equal protection: ibidl at 673.

⁹⁶ Ibid at 687-88.

⁹⁷ Isaacs' response is telling: “That is a very dangerous proposal - that the Supreme Cour should control the Legislatures of the states within their own jurisdiction”: ibid at 683.

⁹⁸ “It seems to me to be a matter of purely state concern, and which, at this period of thtnineteenth century, it is seriously suggested may be necessary, in order to prevent somt high-handed and monstrous action on the part of the states, for which our past histor) gives no grounds for expectation”: ibid at 678.

⁹⁹ Ibid at 683.

¹⁰⁰ Ibid at 682-4.

¹⁰¹ Ibid at 686-8.

¹⁰² Ibid at 1796.

¹⁰³ Wise quoted from Clark's memorandum which referred to the United States example where taxes were placed on commercial travellers and on limitations on actions fo damages enacted by the state of Maine: ibid at 1793.

¹⁰⁴ Ibid at 1786.

¹⁰⁵ Forrest was primarily concerned with the validity of the Western Australian legislatio that discriminated against Chinese miners. Braddon wanted to adopt the Tasmania proposal which is the equivalent of the American Fourteenth Amendment and followe this suggestion with the claim that it may be possible to use education tests to keep out “people of alien races”. Cockburn was concerned that by referring to the “subjects of the Queen” it would be difficult to legislate on racial grounds: “We desire always to deal with Asiatics on broad lines, whether they are subjects of the Queen or not; and in South Australian, and I believe in other colonies, those lines of distinction are obliterated”. Higgins wanted to “prohibit any discrimination based upon a false principle,” but did not reject the Western Australian legislation because “[t]here is no discrimination there based on residence or citizenship; it is simply based upon colour and race”. As he openly declared, “[w]e want a discrimination based on colour”. There were, according to Trenwith, “races within the nation that remain distinct; that are by their existence and by their rapid increase inimicable to the well-being of the whole community. This has been made very manifest in America”. He considered the granting of citizenship to the “Negroes” a generous but unwise act. See in general Convention Debates, Melbourne, 1898, 1780-1802.

¹⁰⁶ Per Isaacs, Kingston and Reid: ibid at 1798-1799.

¹⁰⁷ To see the Constitution as a social contract was to misconceive the nature of society anc therefore the best means for securing freedom and progress. Society was not an artificia: entity that was constituted by agreement or contract (however fundamental), and therefore entrenching rights in a Constitution did not guarantee them.

¹⁰⁸ To the extent that progress also contemplated growth these views were not inconsisten However, the inconsistencies between these views were evident when we recall Bentham' critique of the common law and the so-called natural basis of the society and laws.

¹⁰⁹ See generally, the references above n 1; G Craven, above n 5; G Craven, “Original Intent and the Australian Constitution - Coming Soon to a Court Near You?” [1990] Public Law Review 166; Sir Daryl Dawson, “Intention and the Constitution - Whose Intent?” (1990) 6 Aust Bar Rev 93.

¹¹⁰ Especially since, as G Craven notes, above n 5 at 23, most approaches to the Constitution are to some extent intention based: “intentionalism directly; literalism intrinsically, in the sense that its conceptual validity depends upon its utility as a means of divining intention; and even progressivism, at least to the vestigial extent that it seems to posit the existence of some basic historical intent that the court should constantly revise the Constitution”.

¹¹¹ Of course this raises difficult questions as to when a certain practice can be said to be no longer contested as “civilised” and so on.

¹¹² “Progressivism” is an approach to constitutional interpretation that maintains provisions should be given a meaning that is most consonant with contemporary society. See Craven, above n 5 at 16. Arguably there is a difference between applying the terms of the Constitution to changing circumstances and changing the meaning of its terms to accommodate modern developments. In this context note that the “living tree” metaphor, initially formulated by Lord Sankey in Edwards v Attorney-General of Canada [1930] AC 124 at 136, assumed some plan or structure, that is, an original intent: a “living tree capable of growth and expansion within its natural limits” (emphasis added).

¹¹³ See J Goldsworthy, “The High Court, Implied Rights and Constitutional Change” (1995)Quadrant 46. The progressivist argument put forward by Deane J in Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 at 171, assumes that by not amending the Constitution the people consent to its terms. However, leaving aside the difficulties associated with this consent argument (both practical and theoretical), as the quote from Inglis Clark in the judgment of Deane J indicates, this adoption argument presupposes “the language of their predecessors” and hence reintroduces the problem of originalism.

¹¹⁴ See the judgement of Deane Jin Theophanous v Herald and Weekly Times Ltd (1994) 182 CLF 104 at 163-188.

¹¹⁵ And therefore it is not necessary to defend judicial review as merely the protection o “neutral” democratic procedural rights; the Court protects substantive and procedura rights as the fruits of progress. See in this context Waldron, J, “A Right-Based Critique Constitutional Rights” (1993) 13 Oxford J Legal Studies 18CrossRefGoogle Scholar; Ely, J, Democracy and Distnts,(1980)CrossRefGoogle Scholar

¹¹⁶ For example, the rejection of “civilisation” as a standard by Brennan J in Mabo v Queenslan1 (No 2) (1992) 175 CLR 1.

¹¹⁷ In which case the attempts to amend this liberalism by means of a judicial bill of right derived from natural rights or human rights would appear contrary to the founders' inten This raises questions regarding the support of Kirby J for the “Bangalore Principle”: se Kirby, M, “The Role of International Standards in Australian Courts” in P Alston an M Chiam (eds), Treaty-Making and Australia: Globalisation versus Sovereignty? (1995) 81Google Scholar.