The Australian Constitution: Interpritation

1. Introduction

Constitutional interpretation has been frequently discussed in many parts of the world, particularly Australia, which will be the main focus of the article. Generally, constitutions play a vital part in federal systems. Some theories of constitutional interpretation have been applied throughout a period of time until further reflection highlighted its shortcomings.[1] The debate over the importance of different modes of constitutional interpretation has been ongoing for a period of time. Before we begin considering the two major cases on hand and the different methods of constitution interpretation adopted in each, we will first reflect on the historical facts surrounding the emergence of the Constitution in Australia. The Constitution was drafted through the conventions of the 1980s, accepted by a referendum and then endorsed by a Statute of the British Parliament. Subsequently, the Commonwealth came into existence on 1 January 1901. It can be said that the distribution of powers in the Constitution was a reflection of the visions adopted by the founding fathers.[2] The functions and content of the Constitution mirror the agreement reached by the six colonies and accepted by a majority of its people.[3] With this background in mind, to refer to cooperative federalism as a ‘political slogan’ is to risk undermining the historical procedure which brought the Constitution in existence in the first place.[4] In Australia, the role of interpreting the Constitution is left to the High Court, but some leeway still remains for interpretation by the Parliament.[5] This is evident in cases where the Court defers the judgment to the Parliament or where a non-justiciable issue arises.[6] Since federation, there has been many debates surrounding the scope of powers listed in section 61 of the Constitution.[7] In making such a claim, initial and crucial issues arises, namely how a constitution and constitutionalism are best understood. Generally, there are two main competing views surrounding this contention. The first being that written constitutions are about locking things in.[8] In applying this view, it is understood that the Constitution does contain a list of Federal and State powers, rules related to how members of the Parliament are elected and so on. Such things will make it harder than normal for it to be altered or removed completely.[9] Therefore, the main point of adopting a written constitution is so that such rules can be locked in. The second view adopted is completely different to the first. Essentially it involves setting up guidelines and values that needs updating and reviewing from time to time as society changes and develops.[10]

2. Modes of Constitutional Interpretation

The subject of constitutional interpretation has been the talking point of many for the past few decades. Despite this, there is no exhaustive list of the academic approaches that has been developed pertaining to constitutional interpretation. In addition, there is no single set of interpretation theory that can be applied as the actual process involves various tedious steps and suppositions.[11] One of the most common modes of interpretation is the originalist method. Essentially, this enforces the fact that the constitution is to be read and interpreted in its original form as it was drafted.[12] As discussed, judges adhere strictly to what is in the written constitution. One significant drawback of this approach is the fact that with the continuous evolution in todays’ society, it poses a strain of judges having to make decisions strictly based on rules that were drafted many years ago.[13] Having said that, many have considered the alternatives of originalism to be unable to coexist with the democratic fundamentals of constitutionalism hence allowing too much discretion and admitting too much uncertainty in applying the constitution.[14] On the other hand, others believe that the constitution only provides general guidelines and principles of governance. In essence, the conformity to the constitution should not necessarily involve strict compliance of the framers’ intentions.[15] Also, some have raised the issue that the constitutional values of todays’ society would be incompatible with such firm and rigid interpretation methods. This method of interpretation raises the notion of interpretivism and non-interpretivism. The former involves judges restricting themselves to applying norms explicitly listed in the text of the constitution.[16] Whereas the latter involves judges not being restricted to applying them explicitly or impliedly listed in the constitution.[17] Interpretivists are in agreement with the analogy whereas non-interpretivists believe that judges may use principles not specified in the Constitution.

3. Work Choices Case

This case particularly reflects the need to appreciate the nature of applying interpretive decisions made by the High Court throughout history as so to evaluate usefully the High Court’s constitutional work. The consistently expanding scope of the corporations power has played itself out in a number of ways.[18] Under section 51(xx), the Commonwealth has the power to regulate the employment relationship between ‘foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.’ The decision of the High Court in New South Wales v Commonwealth (Work Choices case)[19] in 2006 reflects this proposition. To some, the judgment passed by the majority was in sync with constitutional heresy, whereas to others the judgment was a strict application of settled principles. In a joint judgment, Chief Justice Gleeson and Justices Gummow, Hayne, Heydon and Crennan held that under s51(xx) of the Constitution, the Commonwealth has the power to make laws regulating the employment relations of what are known as constitutional corporations. Further, they also held that the legislation permissibly limited State powers and did not interfere with State constitutions or functioning. Justices Kirby and Callinan delievered dissenting judgments. In this case, the majority’s lengthy analysis of Huddart, Parker & Co Pty Ltd v Moorehead[20] was not simply to approve the overruling of the judgment in the case of Concrete Pipes[21]. It also reinforced the majority’s observance of the interpretive method adopted that was originally derived from the Engineers’ case[22]. After considering various High Court decisions pertaining to corporations power, developments in the early 19th century and Convention debates to amend s51(xx), the majority applied the statement of Gaudron J in Re Pacific Coal Pty Ltd[23] that the corporations power extends to: “The regulation of the activities, functions, relationships and the business of a corporation described in that subsection, the creation of rights, and privileges belonging to such a corporation, the imposition of obligations on it and, in respect of those matters, to the regulation of the conduct of those through whom it acts, its employees and shareholders and also, the regulation of those whose conduct is or is capable of affecting its activities, functions, relationships or business.” However, at [57] the plaintiffs had relied on 3 major reasoning in support of the fact that the corporations power should not be read as supporting the WRA (as amended by the Work Choices Act). Firstly, it was highlighted that the corporations power was said to only extend to dealings in relation to persons external to the corporation in contrast to its internal relationships.[24] Hence, the relationship between a corporation and its employees were termed to be internal in nature. Secondly, it was put forth that the corporations power did not support a law merely because it impose rights and obligations on a corporation.[25] The fact that a corporation is a foreign, trading or financial corporation should be significant in how it relates to the law.[26] However, the majority rejected these propositions on the corporations power. Their Honours emphasized at various points the need to read and construe the constitutional text and said at [142]: “The general principles to be applied in determining whether a law is with respect to a head of legislative power are well settled. It is necessary, always, to construe the constitutional text and to do that “with all the generality which the words used admit”. The character of the law must then be determined by reference to the rights, powers, liabilities, duties and privileges which it creates. The practical as well as the legal operation of the law must be examined. If a law fairly answers the description of being a law with respect to two subject matters, one a subject matter within s51 and the other not, it is valid notwithstanding there is no connection between the two subject matters. Finally, as remarked in Grain Pool of Western Australia v The Commonwealth, “if a sufficient connection with the head of power does exist, the justice and wisdom of the law, and the degree to which the means it adopts are necessary or desirable, are matters of legislative choice”. Subsequently, the High Court rejected the use of conceptions such as the ‘federal balance’ to place a restrain on the scope of the legislative power.[27] However Callinan J in dissent warned that ‘the reach of the corporations power, as validated by the majority, has the capacity to obliterate powers of the State hitherto unquestioned.’[28] The judgment in the Work Choice’s case demonstrates that care needs to be taken in order to ask questions that can properly be answered from the historical record. [29] As Waugh commented: “Historians find multiple intentions and diverse experiences in federations, while lawyers usually strive to establish single meanings in order to support definitive judgments. Historians explore personalities, setting, mood, culture, society, economy, theory and the meaning of events in such a broad sense that a lawyer in search of original intention must be tempted to give up and go back to something safe like the Convention Debates or the Federal Law Review. This interest in context can seem redundant to lawyers wanting precise information rather than contemporary colour.”[30] Therefore, to say that the Court’s approach is textualist, in the sense that it generally begins its analysis with the written text of the Constitutions, provides very little assistance.[31]

4. William’s Case

Williams v Commonwealth[32] was another landmark case of the High Court that paid much attention to the scope of the federal executive power in s61 of the Constitution. This decision is also significant because it brought to light the interpretive methodology used by the Court in contrast to the Work Choices Case[33]. Questions regarding the orthodox method of interpreting the Constitution were raised after the judgment of the Williams Case was passed. This case involved the validity of an agreement entered between the Commonwealth and a private company that provided chaplaincy services in a Queensland state school.[34] The payments were made and supported by a valid Appropriation Act. Having said that, there was no express statutory authority for the Commonwealth to enter into the contract and make payments under it. This was challenged by Mr Williams as his children was attending the school that the chaplaincy services were being rendered. The Court, by a 6:1 majority upheld the challenge. Four of the judges (French CJ, Gummow and Bell JJ, and Crennan J) held that Commonwealth’s power to enter into contracts and spend money was not overlapping the scope of the Commonwealth legislative power.[35] The Court relied on federalism, amongst other factors, in reading the Constitution prior to considering the repercussions it would have on future decisions. The Court had not only rejected the broad submission, it being that the Commonwealth’s common law capacities are unlimited, but also the narrow submission that the Commonwealth’s common law capacities followed the path of he Commonwealth’s legislative powers.[36] By contrast to the method adopted is the Work Choices Case, the Court’s process in Williams is characterized by deliberating the structure of the Constitution and the willingness to incorporate limitations into expressed powers minus a clearly express source for that limitation.[37] The most significant development of this William’s Case was the use of the interpretive method adopted by the Court and its subsequent implications on a large scale. To address this issue in depth, it is necessary to consider the implications on the substantive conceptions which arose in the judgment. Federalism and federalism-reinforcing principles of constitutional interpretation were used in various ways in delivering the judgment for the case.[38] Firstly, some judges renowned federalism as a ‘cognitive checkpoint’ in the process of constitutional construction.[39] Gummow and Bell JJ particularly said that, ‘it was important to bear in mind that, when ascertaining the limits of the executive power of the Commonwealth, attention is to be paid by the Court both to the position of the States in the federal system established by the Constitution and to the powers of the other branches of the federal government’.[40] This provides clear evidence of an approach that tends to lean towards constitutional construction with federal concerns in mind[41], as opposed to the method adopted in the Work Choices Case. As already discussed, the constitutional interpretation method adopted in the Work Choice’s Case that was derived from the Engineers’ Case is unambiguously centralizing.[42] Generally this means that the process of constitutional interpretation happens in a progressive manner. Commonwealth powers are read in full and without regard to political and federal consequences of doing so.[43] Williams, on the other hand, marks a shift from this orthodox method of interpretation adopted in Work Choices Case, when it concerns construing executive as opposed to legislative powers.[44] The Constitution was read by the majority without the generality which the words used admit, nor was the wider definition of the words applied. In addition, the majority of the Court referred to ‘federalism’ as a generally accepted contemplation relevant to constitutional construction and interpretation without identifying the specific notion being called upon.[45] While the Work Choices Case provided strong affirmation of the principle that each conferral of powers are to be read fully on its own terms, Williams may be understood as a case strongly amused by a concern for constitutional coherence.[46] This was prominent in the federalism-reinforcing dissenting judgments of Callinan J and Kirby J in the Work Choices Case[47] and Heydon J in Pape[48].

5. Interpretive Federalism in Williams

There has been much said about that s 61 reflects a special case and that Williams should not be taken to reflect a wider shift, especially when it concerns federal legislative powers. There are a number of factors that needs to be considered when addressing this argument. Firstly, the central issue with s 61 is that it is expressed in very general terms that ironically, it is usually read down than are the Commonwealth’s heads of legislative powers.[49] This stems from the general principle that Courts are more willing to read down general words in statutory provisions so as to maintain the validity of the Constitution.[50] As per Isaacs J in Le Mesurier v Connor[51], it is the generality of the terms in s 61 that makes it necessary to seek limiting factors from a source outside the Constitution[52]. However when it concerns head of powers, there is no necessity for doing so due to the specific terms used. Secondly, the construction of s 61 and s 51 differs in a way whereby s 61 is not bogged down by a heavy body of jurisprudence.[53] This had resulted in the decision in the Work Choices Case and as a result, the Work Choices Case will continue to have an impact on jurisprudence that will represent the limits of the heads of legislative power.[54] In contrast, s 61 can be approached in an opposite way as a matter of first impression and the Courts can start afresh when addressing such issues.[55]

6. Conclusion

In conclusion, it can be said that there is strong evidence to show that the Williams Case was a consequence of the Work Choices Case. However, one might also argue that the methodology adopted in Williams extends no further than s 61 and that it could mark a retreat from the Commonwealth power reflected in Work Choices Case.[56] Also, we have to pay attention to the fact that the Williams Case was not only about federalism, but also involved responsible government. One can argue that the principle of responsible government was more of a driving force of the judgment in Williams than federalism.[57] This goes to show that federalism-reinforcing characteristics will eventually become obsolete and a thing of the past in the near future. 1

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[1] Justice Susan Kenny, “The High Court of Australia and Modes of Constitutional Interpretation”, p 46.

[2] French, Justice Robert , "Co-operative federalism - a constitutional reality or a political slogan" (FCA) [2004] FedJ Schol 21.

[3] Ibid. [4] Ibid. [5]Gabrielle Appleby and Adam Webster, “Parliament’s Role in Constitutional Interpretation”, (2013) Melbourne University Law Review 37:255 [6] Ibid. [7] [8] James Allan and Nicholas Aroney, ‘An Uncommon Court: How The High Court Of Australia Has Undermined Australian Federalism’, (2008) Sydney Law Review 30: 245, 248. [9] Ibid. [10] James Allan and Nicholas Aroney, ‘An Uncommon Court: How The High Court Of Australia Has Undermined Australian Federalism’, (2008) Sydney Law Review 30: 245, 250. [11] Arun Sagar, ‘Constitutional Interpretation in Federations and its Impact on the Federal Balance’, (2011) Perspectivs On Federalism vol. 3, Issue 1, p 3. [12] Ibid. [13] Ibid. [14] Ibid. [15] Ibid. [16] Arun Sagar, ‘Constitutional Interpretation in Federations and its Impact on the Federal Balance’, (2011) Perspectives On Federalism vol. 3, Issue 1, p 6. [17] Ibid. [18] James Allan and Nicholas Aroney, “An Uncommon Court: How The High Court Of Australia Has Undermined Australian Federalism” (2008) Sydney Law Review 30: 245, 274. [19] [2006] HCA 52. [20] Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330. [21] (2006) 231 ALR 1 at 18 [49] – [50]. [22] Amalgamated Society of Engineers v Adelaide Steamship Company Ltd (1920) 28 CLR 129; Justice Susan Kenny, “The High Court of Australia and Modes of Constitutional Interpretation”, p [23] Re Pacific Coal Pty Ltd; Ex Parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346 at 375 [83]. [24] Australians Government Solicitors, ‘Work Choices Decision’, 22 November 2006, p 2. [25] Ibid. [26] Ibid. [27] David Hume, Andrew Lynch and George Williams, ‘Heresy in the High Court? Federalism as a Constraint on Commonwealth Power’ (2013) 41 Federal Law Review 72, 90, p 4. [28] Ibid; Work Choices Case (2006) 229 CLR 1, 332 [794]. [29] Justice Susan Kenny, “The High Court of Australia and Modes of Constitutional Interpretation”, p 58. [30] J Waugh, op cit n 123, p 28. [31] Ibid at p 54. [32] Williams v Commonwealth [2012] HCA 23. [33] David Hume, Andrew Lynch and George Williams, ‘Heresy in the High Court? Federalism as a Constraint on Commonwealth Power’ (2013) 41 Federal Law Review 72, 90, p 2. [34] Shipra Chordia, George Williams and Andrew Lynch, ‘Commonwealth Executive Power and Australian Federalism’ [2013] 37 Melbourne University Law Review, p 2. [35] David Hume, Andrew Lynch and George Williams, ‘Heresy in the High Court? Federalism as a Constraint on Commonwealth Power’ (2013) 41 Federal Law Review 72, 90, p 2. [36] Gabrielle Appleby and Adam Webster, “Parliament’s Role in Constitutional Interpretation”, (2013) Melbourne University Law Review 37:255, 289. [37] D. Hume, A. Lynch and G. Williams, ‘Heresy in the High Court? Federalism as a Constraint on Commonwealth Power’ (2013) 41 Federal Law Review 72, 90, p 4. [38] Ibid p 13. [39] Ibid. [40] Williams v Commonwealth [2012] HCA 23, [89]. [41] D. Hume, A. Lynch and G. Williams, ‘Heresy in the High Court? Federalism as a Constraint on Commonwealth Power’ (2013) 41 Federal Law Review 72, 90, p 13. [42] Ibid at p 18. [43] Ibid. [44] Ibid at p 19. [45] Ibid. [46] Ibid at p 20. [47] (2006) 229 CLR 1 207-8 [490] – [493] (Kirby J), 307 [743] (Callinan J). [48] (2009) 238 CLR 1, 199 [569]. [49] D. Hume, A. Lynch and G. Williams, ‘Heresy in the High Court? Federalism as a Constraint on Commonwealth Power’ (2013) 41 Federal Law Review 72, 90, p 21. [50] Ibid. [51] (1929) 42 CLR 481, 514. [52] D. Hume, A. Lynch and G. Williams, ‘Heresy in the High Court? Federalism as a Constraint on Commonwealth Power’ (2013) 41 Federal Law Review 72, 90, p 21. [53] Ibid. [54] Ibid. [55] Ibid. [56] Ibid at 22. [57] Ibid.

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