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Published online by Cambridge University Press: 24 January 2025
Many of the terms the Constitution uses to define Commonwealth legislative powers are legal terms or at least terms well-known to the law with legally defined meanings in 1900. The ordinary meaning of some of these terms is dependent on, and derived from, their legal meaning. Therefore, it is reasonable to assume that their constitutional meaning is consistent with their legal meaning. This poses a problem: what is the legal meaning of a legal term? One answer may be that the legal terms are shorthand for the bundle of legal rights and duties and practices associated with that term. On this view, for example, copyright is shorthand for the legal rules and practices which make up the law of copyright.
1 Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 ('Nintendo Case’) and upheld its power to do so with respect to the second in Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479 ('Grain Pool’).
2 A-G (NSW) v Brewery Employés Union of New South Wales (1908) 6 CLR 469, 600–2 ('Union Label Case’).
3 Ibid 610.
4 Storey v Lane (1981) 147 CLR 549.
5 Lansell v Lansell (1964) 110 CLR 353, 362–3 (Kitto J), 366–7 (Taylor J), 369 (Menzies J), 370 (Windeyer J) ('Lansell’).
6 Union Label Case (1908) 6 CLR 469, 610 (Higgins J).
7 Lansell (1964) 110 CLR 353, 363 (Kitto J).
8 That the stream, legislation, cannot rise above the source, constitutional power, is one of the fundamental doctrines of Australian constitutional law: see Australian Communist Party v Commonwealth (1951) 83 CLR 1.
9 (1908) 6 CLR 469.
10 Union Label Case (1908) 6 CLR 469, 611 (emphasis added); cited with approval in Grain Pool (2000) 202 CLR 479, 494 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
11 Union Label Case (1908) 6 CLR 469, 610.
12 Pochi v Macphee (1982) 151 CLR 101, 109 (Gibbs CJ); Re Patterson; Ex parte Taylor (2001) 207 CLR 391, 400 (Gleeson CJ), 469–70 (Gummow and Hayne JJ), 491–2 (Kirby J) ('Patterson’); Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162, 173 (Gleeson CJ).
13 The judgment made it clear that it was this Act which established a separate Australian citizenship and, along with similar legislation in other Commonwealth countries, such as the British Nationality Act 1948 (UK) c 56, reflected and formalised the diminished importance of the notion of British subject: Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178, 184 (Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ) ('Nolan’).
14 Nolan (1988) 165 CLR 178, 185–6 (Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ). Although Nolan was not followed in Patterson (2001) 207 CLR 391, it was applied in the later case of Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28. Even in Patterson, the majority of the Court accepted that a British subject, although not an alien in 1901, could now be an alien: 400 (Gleeson CJ), 408 (Gaudron, J), 433–4, (McHugh J), 466–71 (Gummow and Hayne JJ) 495–6 (Kirby J). See also Singh v Commonwealth (2004) 222 CLR 322, 368–71 (McHugh J) ('Singh’). In Patterson, McHugh J also allowed that another piece of legislation, the Royal Style and Titles Act 1973 (Cth) may be significant for the interpretation of the aliens power. He said, at 431:
But in my view the terms of the Constitution make it clear that, at least until the passing of the Royal Style and Titles Act 1973 (Cth), a person, living in Australia, who owed allegiance to the Queen of the United Kingdom was not and is not an alien within the meaning of the Constitution.
15 Many philosophers now prefer the term ‘referent’ to ‘connotation.’ As the latter term tends to be used in the cases, I shall adhere to it.
16 R v Brislan; Ex parte Williams (1935) 54 CLR 262; Jones v Commonwealth (1965) 112 CLR 206. The history and wording of this power invited such an approach to interpretation because it is probable that the words ‘like services’ were added to the power because delegates at the Conventions were aware that new means of communication, especially radio, were in the pipeline: Geraldine Chin, ‘Technological Change and the Australian Constitution’ (2000) 24 Melbourne University Law Review 609.
17 See, eg, Union Label Case (1908) 6 CLR 469, 610 (Higgins J); Lansell (1964) 110 CLR 353, 363 (Kitto J).
18 (1908) 6 CLR 469.
19 Ibid 522; see also 504 (Griffith CJ), 535 (O'Connor J), 559 (Isaacs J). Not all of these judges placed as much emphasis on the meaning of the term in 1900, but all agreed that the issue before the Court was the meaning of the term ‘trade mark'.
20 (1994) 181 CLR 134.
21 Ibid 160 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). The reasoning of the majority joint judgment in Grain Pool (2000) 202 CLR 479 focused on the meaning of patents of invention, suggesting a reversion to an interpretation of s 51(xviii) based on the view that it embodies a list rather than a class. However, there was nothing in the case which rules out a return to the view that the placitum gives power over a broad class rather than a list of related matters.
22 Gallie, Walter B, ‘Essentially Contested Concepts’ (1956) 56 Proceedings of the Aristotelian Society 167, 171–2 (emphasis in the original).CrossRefGoogle Scholar
23 Ibid 175–7.
24 Ibid 170–1.
25 Ronald Dworkin, Law's Empire (1986).
26 Ibid ch 2, especially at 52.
27 Ibid. All of Dworkin's examples of interpretive practices are contested, and it is difficult to think of examples which would not be.
28 Ronald Dworkin, Justice in Robes (2006) 10–11.
29 Dworkin's best account of the approach judges ought to adopt in difficult cases is in Ronald Dworkin, Taking Rights Seriously (1977) ch 4 ‘Hard Cases'. Although that chapter was written before Dworkin developed his concept of an interpretive practice in Law's Empire, above n 25, its constructivist approach is entirely consistent with that concept.
30 (1908) 6 CLR 469, 600–2.
31 Dworkin, above n 25, 66–8.
32 Dworkin, above n 28, 115–23 describes this process and the checks it imposes in his analysis of the duty of judges in hard cases.
33 Baker v Selden, 101 US 99 (1880); Plix Products v Frank M Winstone (Merchants) Ltd (1984) 3 IPR 390.
34 A distinction which has been much discussed in the High Court in the last 20 years: see Air Caledonie International v Commonwealth (1988) 165 CLR 462, 466–71 (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ); Northern Suburbs Cemetery v Commonwealth (1992) 176 CLR 555; Airservices Australia v Canadian Airlines International (2000) 202 CLR 133 ('Airservices Australia’).
35 For a recent discussion, see Singh (2004) 222 CLR 322.
36 R v L (1992) 174 CLR 379, 396 (Brennan J).
37 Re Wakim; Ex parte McNally (1999) 198 CLR 511, 553 (McHugh J) ('Re Wakim’).
38 See Airservices Australia (2001) 202 CLR 133, 237–41 (McHugh J); Re Wakim (1999) 198 CLR 511, 551–4 (McHugh J); Grain Pool (2000) 202 CLR 479, 522–33 (Kirby J); Singh (2004) 222 CLR 322, 384–6 (Gummow, Hayne and Heydon JJ).
39 The States only legislated to exclude marriage as a defence to a charge of rape in the 1980s: see Patricia Easteal, ‘Rape in Marriage — Has the Licence Lapsed?’ in Patricia Easteal (ed), Balancing the Scales; Rape, Law Reform and Australian Culture (1998) 112.
40 R v L (1992) 174 CLR 379, 396.
41 (1999) 199 CLR 462, 571–2.
42 Callinan J's comments in Sue v Hill (1999) 199 CLR 462 were addressed to a different problem, that of rights conferred by the Constitution itself. As he pointed out, there is a strong argument that constitutional provisions conferring rights should not be interpreted in an evolutionary way so as to deprive people of those rights without their having any way of knowing it.
43 I do not accept the assumption that the Constitution is a document. In one way it is obviously true in that there is a document, the Constitution. However, reading that document will give us little understanding of how the Constitution works, suggesting that the Constitution is much more than the document. In my opinion, the Constitution is a contested practice having all of the features which Gallie identified. However, for the purposes of this part of the article, I shall assume that it is a document.
44 Birch, Christopher, ‘Mill, Frege and the High Court’ (2003) 23 Australian Bar Review 296, 304–11Google Scholar; Jeffrey Goldsworthy, ‘Implications in Language, Law and the Constitution’ in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994) 150.
45 Birch, above n 44.
46 These issues are discussed in the text accompanying notes 43–5 above.
47 One who claims to do so is Justice Antonin Scalia of the United States Supreme Court: see Antonin Scalia, ‘Common Law Courts in a Civil Law System: The Role of the United States Federal Courts in Interpreting the Constitution and Laws’ in Antonin Scalia (ed), A Matter of Interpretation —Federal Courts and the Law (1997) 3.
48 Andrew Inglis Clark was a supporter of this theory: Andrew Inglis Clark, Studies in Australian Constitutional Law (1901) 20–1. Its most influential supporter in Australia today is Justice Michael Kirby: see JusticeKirby, Michael, ‘Constitutional Interpretation and Original Intent: A Form of Ancestor Worship’ (2000) 24 Melbourne University Law Review 1.Google Scholar See also Grain Pool (2000) 202 CLR 479, 522–5 (Kirby J).
49 Kirk, Jeremy, ‘Constitutional Interpretation and a Theory of Evolutionary Originalism’ (1999) 27 Federal Law Review 323, 359–65 is a sophisticated example.CrossRefGoogle Scholar
50 Birch, above n 44, 313; Stokes, Michael, ‘Interpretation and Change in Constitutional Law’ (1996) 21 Australian Journal of Legal Philosophy 1, 6–8.Google Scholar
51 Goldsworthy, Jeffrey, ‘Interpreting the Constitution in its Second Century’ (2000) 24 Melbourne University Law Review 677, 683–7Google Scholar; Goldsworthy, Jeffrey, ‘The High Court, Implied Rights and Constitutional Change’ (1995) 39 Quadrant 46, 46Google Scholar; Kirk, above n 49, 361.
52 Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution (1996) 7–12; see also Dworkin, above n 29, 133–5 and Dworkin, above n 25, 361–3.
53 Goldsworthy, Jeffrey, ‘Originalism in Constitutional Interpretation’ (1997) 25 Federal Law Review 1, 30–1.CrossRefGoogle Scholar
54 Dworkin, Freedom's Law, above n 52, 8–10.
55 Goldsworthy, above n 53.
56 Natural kinds are object groupings which reflect real distinctions in nature based on accurate science. For a general account of natural kinds, see Stephen P Schwartz (ed), Naming, Necessity and Natural Kinds (1977).
57 Goldsworthy gives the example of whether homosexuals are psychopaths. He argues that we should not be bound by the application intentions of the framers of a statute dealing with psychopaths if scientific opinion on the point has changed since the statute was passed: Goldsworthy, above n 53, 30–1.
58 An exception is placitum 51(xxxv), the acquisitions power.
59 For example, Geraldine Chin has argued that the framers intended that placitum 51(v), the power over postal, telegraphic, telephonic and other like services should extend to services such as radio which they knew was in the pipeline: Chin, above n 16.
60 See the text accompanying notes 22–3 above.
61 Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309, 367–8 (O'Connor J), and adopted as a key principle in the interpretation of Commonwealth powers in many cases, including Commonwealth v Tasmania (1983) 158 CLR 1, 99 (Gibbs CJ), 128 (Mason J), 220–1 (Brennan J), 302 (Dawson J) ('Tasmanian Dam Case’); Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 227–8 (Mason J); R v Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297, 314 (Gibbs CJ, Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ); Victoria v Commonwealth (1995) 187 CLR 416, 485 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).
62 R v Burgess; Ex parte Henry (1936) 55 CLR 608, 640–1 (Latham CJ); Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 216–7, 228–9 (Stephen and Mason JJ); Tasmanian Dam Case (1983) 158 CLR 1, 127–8 (Mason J).