Kenny, Justice Susan --- "The High Court of Australia and modes of constitutional interpretation" (FCA) [2007] FedJSchol 10

The High Court of Australia and modes of constitutional interpretation

Justice Susan Kenny[1]

INTRODUCTION

Scholars, judges and various others have sought to explain the processes of construing written constitutions. There is a wealth of literature on the topic in the United States of America[2] and a considerable body of writing in Australia.[3] No explanation has yet won general acceptance and probably none ever will. Some theories of constitutional interpretation have been fashionable in certain quarters for a time until further reflection and experience marked out their limitations. Although the search for an all encompassing and generally-approved theory is probably hopeless, continued discussion and analysis of constitutional interpretation assists in understanding the processes of making decisions in constitutional cases[4] and, in the Australian context, enables the identification of the nature of the choices open to the Australian High Court in constitutional decision-making.

It is necessary to appreciate the nature of these choices in order usefully and fairly to evaluate the Court’s constitutional work. The decision of the High Court in November 2006, in New South Wales v Commonwealth [2006] HCA 52; (2006) 231 ALR 1 (‘Work Choices Case’), illustrates this proposition. The majority (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) held that the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (hereafter ‘the Work Choices Act’) was constitutionally valid. The Work Choices Act provided for an Australia-wide regime to regulate the employment relationship of ‘constitutional’ corporations (broadly speaking, trading, financial and foreign corporations) and their employees. In the course of so doing, the majority held that a law of the Commonwealth Parliament regulating the business and other activities, functions and relationships of a constitutional corporation was constitutionally valid. The Work Choices Act was, so the majority said, such a law since it controlled the people through whom the corporation acted. Plainly enough, the Court’s reasoning will apply to other activities and relationships involving constitutional corporations.

At the time judgment was delivered, the daily press published numerous commentaries and opinion-pieces on the decision, in many of which the decision was seen to mark the “death of federalism”,[5] at least as we know it.[6] Interestingly enough, the actual outcome of the case had clearly been foreshadowed earlier in the scholarly literature.[7] For present purposes, it is relevant to note that at least one writer attributed the outcome of the case to the Court’s interpretive method.[8]

Hereafter I examine the interpretive analyses employed by the Court in Work Choices Case. The reasons for judgment of the majority (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) disclose that the majority used various interpretive modes in resolving the constitutional issues that arose. Broadly speaking, Kirby and Callinan JJ, who dissented, referred to the same modes but did not use them in the same way as the majority did.

In the Work Choices Case, the majority and the dissentients stated contrary views about constitutional interpretation. This is unsurprising. Over the past decade, judges have been setting out their views about the proper approach to constitutional interpretation in reasons for judgment and elsewhere.[9] They have recognized, either expressly or by implication,[10] that their preferred interpretive method is fundamental to their constitutional decision-making.

Differences in opinion about the proper approach to constitutional interpretation raise numerous questions. Taking the comparatively recent and undoubtedly significant Work Choices Case as an example, one may ask whether the majority preferred one mode of interpretation to another or accorded priority to some modes rather than to others? Did the majority’s choices in that case differ from those of the minority judges? Did these choices have any constitutional relevance?

In an address delivered in February 2003, I considered similar questions in connection with the work of the High Court in the 2002 term.[11] I concluded that the principal mode of interpretation used by the High Court at that time was doctrinal. That is, the Court relied upon the principles it discerned in its past decisions to construe the constitutional text. I further concluded that structural and historical modes were important, and that the choice of one mode over another mattered. In looking at constitutional interpretation again, I have a further question. Is there any discernible difference between the Court’s interpretive method in the Work Choices Case and that which appeared in the constitutional cases of 2002? Has this difference any constitutional significance?

Before seeking to answer these questions, I should perhaps disclose that this article does not seek to argue the cases for or against legalism, originalism or progressivism, or any other general theory of constitutional interpretation. As Saunders has observed, to characterise an approach to constitutional interpretation in such a broad-brush way is too simplistic and is “vulnerable to criticism on the grounds that it is inaccurate, or inappropriate, or both, generally or in particular circumstances”.[12] As she said:

“Even in the heyday of strict legalism judges clearly made choices which were policy driven and, sometimes quite dramatic ones, as a range of cases shows, from R v Kirby; Ex parte Boilermakers’ Society of Australia (Boilermakers’ case) [1956] HCA 10; (1956) 94 CLR 254 to Parton v Milk Board (Vic) [1949] HCA 67; (1949) 80 CLR 229. Originalism is a foreign transplant, sparked by the particular experience of the United States constitutional founding, which sits uncomfortably with the evolutionary constitutional tradition that Australia, in other contexts, proudly claims to share with Commonwealth countries. Variants of progressivism, on the other hand, are troubling by their lack of benchmarks against which the proper role of a judge can be measured.”[13]

I am inclined to agree with Gummow J, writing as a judge of the High Court, that questions of constitutional construction are not to be answered by “any particular, all-embracing revelatory theory or doctrine of interpretation”.[14] Indeed, Sunstein has argued that the lack of theory is a useful part of “well-functioning constitutional orders”.[15] Sunstein argued that “people can often agree on constitutional practices ... when they cannot agree on constitutional theories”.[16] He added that “well-functioning constitutional orders try to solve problems, including problems of deliberative trouble, through reaching incompletely theorized agreements”.[17] Although writing in a different constitutional environment, Sunstein’s observations may assist in understanding aspects of Australian constitutional interpretation.

This article is not, however, concerned with any possible theoretical bases of constitutional interpretation. Instead, it is concerned with the modes of constitutional interpretation used by the High Court, especially in the Work Choices Case. That is, the focus of this article is on the manner in which members of that Court have resolved questions of constitutional interpretation.

Other scholars have already taken this route, although not generally with reference to the High Court of Australia. In his book Constitutional Fate,[18] Bobbitt identified six modes or methods of interpretation used in constitutional argument.[19] These six modes were (1) historical; (2) textual; (3) structural; (4) prudential; (5) doctrinal; and (6) ethical.[20] Bobbitt contended that individual judges prefer some modes of interpretation over others, depending on their individual style and the constitutional functions involved in the particular case.[21] According to Bobbitt, this matrix of methods and functions reflects what has become an accepted practice and justifies judicial constitutional review.[22] Farber also argued against grand theories and for the utility of “every tool that comes to hand” - precedent, tradition, legal text and social policy. [23]

Writing of the work of the High Court of Australia in the field of constitutional rights, Stone identified four established methods. They were “textual argument, historical (or originalist) argument, argument based on precedent, and implications from the constitutional text and structure”.[24] In the same context, she also referred to arguments from “fundamental doctrines or constitutional assumptions”, noting that rights derived in this way “have only ever been recognised by a minority of the court”.[25] In a commentary on the High Court in 2002, Zines discerned a preference for doctrinal analysis over other analyses and a “tendency ... to treat social and political practices and consequences as irrelevant for the purpose of deciding whether the language of the Constitution is unambiguous and how it should be interpreted”.[26] Others have described the constitutional interpretive method of the Court as primarily textual.[27] In 2003, Selway described the High Court as “fundamentally textualists”, with “a preference for ‘purposive’ interpretation”, and “a strong disposition to following previous authority”.[28] Judicial and scholarly opinions are generally agreed that there is also a place in constitutional interpretation for history although its precise role is less certain.[29]

Again in curial and extra-curial settings, current and former judges of the Australian High Court have also sought to identify the modes of constitutional argument. For Gummow J, constitutional interpretation was primarily dependent on the written text and the authorities, and to a lesser extent matters of structure and history. Accordingly, in his view:

“The state of the law of the Constitution at any given time is to be perceived by study of both the constitutional text and of the Commonwealth Law Reports. Decisions of this court dealing with the text and structure of the Constitution but not bearing directly upon a particular provision nevertheless may cast a different light upon that provision and so influence its interpretation.

This indicates ... that questions of constitutional interpretation are not determined simply by linguistic considerations which pertained a century ago. Nevertheless, those considerations are not irrelevant; it would be to pervert the purpose of judicial power if, without recourse to the mechanism provided by s 128 and entrusted to the parliament and the electors, the Constitution meant no more than what it appears to mean from time to time to successive judges exercising the jurisdiction provided for in Ch III of the Constitution.”[30]

These comments have relevance in considering the differing interpretive approaches in the Work Choices Case and I return to them hereafter.

In curial and extra-curial analyses,[31] Kirby J has rejected originalism as an appropriate approach to constitutional construction. In SGH Ltd v Commissioner of Taxation[32] (‘SGH’), for example, his Honour stated that it was “a serious mistake ... to attempt to construe any provision of the Constitution, including a prohibition such as that contained in s 114, from a perspective controlled by the intentions, expectations or purposes of the writers of the Constitution in 1900”.[33] He disagreed with the majority’s holding that the appellant, which was a form of building society, was not “the State” for the purposes of s 114 of the Commonwealth Constitution.[34] He disagreed with the majority because, so he said, he differed about the proper approach to constitutional interpretation.[35] According to Kirby J, when the purposes of s 114 were “fully appreciated”, then “it will be realised that the section speaks to succeeding generations in a way that adapts to the significantly altered manner in which the political units of the Australian federation manifest themselves today when compared, say, with the equivalent manifestations of 1901 or of 1950, 1980 or even of 1990”.[36]

When on the Court, McHugh J also sought to formulate a distinctive approach to constitutional interpretation.[37] In Re Wakim; Ex parte McNally, his Honour stated his view that:

“The starting point for a principled interpretation of the Constitution is the search for the intention of its makers. That does not mean a search for their subjective beliefs, hopes or expectations. Constitutional interpretation is not a search for the mental states of those who made, or for that matter approved or enacted, the Constitution. The intention of its makers can only be deduced from the words that they used in the historical context in which they used them.”[38]

In McHugh J’s analysis, the intention of the makers of the Constitution might be ascertained from the text, structure and history of the Constitution and also from certain principles drawn from the Constitution and its history. [39] He was not, however, an originalist in any genuine sense. He went on to say:

“[M]any words and phrases of the Constitution are expressed at such a level of generality that the most sensible conclusion to be drawn from their use in a Constitution is that the makers of the Constitution intended that they should apply to whatever facts and circumstances succeeding generations thought they covered.”[40]

Speaking extra-curially, McHugh has also acknowledged that practical and political considerations played a part in decision-making on some occasions, as well as values inherent in the law.[41]

My previous examination[42] of four cases from the 2002 term of the High Court (namely, Luton v Lessels[43]; SGH[44]; Mobil Oil Australia Pty Ltd v Victoria[45]; and Roberts v Bass[46]) and the examination below of the Work Choices Case indicates that a judge’s choice of preferred interpretive mode matters. Other scholarly commentaries have reached a like conclusion after considering different constitutional decisions.[47] Precisely, how the choice matters is perhaps the more interesting question, the answer to which may well be contested. McHugh has seen the real source of difference between the High Court at the time of Mason CJ and earlier times as stemming from “a particular attitude of mind”.[48] This “attitude of mind” was “the belief [within the Mason Court] that Australia was now an independent nation whose political, legal and economic underpinnings had recently and essentially changed”.[49] Stone has argued that constitutional interpretations are least contested when they are the clear product of established interpretive methods. Conversely, a constitutional interpretation is, so she contended, most vulnerable to challenge when it is not the clear product of such methods or is inconsistent with one or other of them.[50] In the context of an examination of express and implied constitutional rights, she said:

“Interpretations of the Constitution will be most secure when an interpretation is clearly supported by one or more established methods and is not inconsistent with any of them. .... By the same token, however, readings of the Constitution which rely on controversial modes of constitutional interpretation or which seem to run contrary to one of the established modes will be much less secure. The problem for many of the Australian constitutional rights is that there is at least one established form of constitutional argument (usually one based on constitutional text or constitutional history) that undermines them.”[51]

It may be too that certain arguments, such as those from text and doctrine, render a constitutional interpretation less vulnerable than arguments in other modes. I return to this possibility below.

It is plain enough that judicial and scholarly commentators have used various terms and expressions to describe the High Court’s interpretive method. These differences reflect individual preferences, purposes and perceptions. As in my earlier article, in this article, I use the terms (1) textual; (2) structural; (3) historical; (4) doctrinal; and (5) prudential-ethical to describe modes of constitutional interpretation. The first four are well known in the scholarly literature and the authorities. The term “prudential-ethical” is one derived from Bobbitt’s two works, Constitutional Fate and Constitutional Interpretation.[52] I use these terms again here. Recent scholarly writing suggests yet another mode – internationalist – but I leave this mode to another day. I explain each of these terms below.

These terms are not intended to describe the entire universe of modes of constitutional interpretation. They are intended to be broadly descriptive of certain interpretive styles. They are inevitably imprecise and inadequate descriptors of the sometimes very complex styles of interpretive analysis used by the Court. The use of these terms is not intended to give the impression that constitutional interpretation is capable of any precise analysis. Such an impression would be misleading. The terms refer to the more commonly used approaches to analysis that lie in what Saunders has referred to as “the very considerable toolbox of common law adjudicative method”.[53]

In the textual mode

In using the word “textual”, I mean an approach that focuses on the words of the text and attributes to them the meaning they naturally bear. Since most of the constitutional cases that concern the Court raise for determination issues under, or arising from, the text of the written Commonwealth Constitution, the Court almost invariably begins with that text. [54] In this sense at least, the Court’s approach is, as others have said, fundamentally textualist. There will be occasions when the words of the written Constitution will have a clear natural meaning, which yields no ambiguity, and an incontestable application. If there is any process of interpretation, it is entirely unremarkable. It will, however, be comparatively rare for a constitutional issue of this kind to be litigated in the Court; and thus equally rare for the Court to hold that the natural meaning of the text completely resolves the matter, at least not without the Court first making other inquiries.

Thus, for example, when I looked at the Court’s 2002 term, I noted that, whilst the terms of s 114[55] were plain enough, they did not immediately answer the question that arose in SGH[56] as to whether the appellant building society was the State for the purposes of the provision. Nor did s 55[57] provide a ready answer to the question in Luton v Lessels[58] as to whether the Commonwealth’s child support legislation contravened its terms. In the latter case, the answer depended on whether the statutory creation of a debt due from Mr Luton to the Commonwealth constituted “the imposition of taxation”, a question which did not admit of ready answer.

The principal question for determination in the Work Choices Case was whether the Work Choices Act validly amended the Workplace Relations Act 1996 (Cth). If it did, the Work Choices Act shifted the principal constitutional basis of the Commonwealth’s industrial relations legislation from s 51(xxxv) (‘the conciliation and arbitration power’) to 51(xx) ( ‘the corporations power’). This was a deceptively straightforward question: did the Work Choices Act constitute a law “with respect to ... foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth”?[59] The very length of the judgment of the majority, and the two dissenting judgments of Kirby J and Callinan J demonstrates that this question was far from straightforward and its resolution required more than merely consideration of the words of s 51(xx), or even s 51(xx) and s 51(xxxv).

Therefore, to say that the Court’s approach is textualist, in the sense that it generally begins its inquiry with the written text of the Constitution, is not especially helpful. If there is any particular utility in describing the Court’s interpretive approach as primarily textual, it is because the Court prefers a textual answer to another answer that some other mode or modes might give. In the Australian constitutional context, a constitutional interpretation that gives the textual mode priority over other modes has been called “literalism”. This approach derives from the Engineers’ Case,[60] in which the Court drew on a conventional rule of statutory construction in saying that the words of the Constitution should be given their “natural” or “ordinary” meaning.[61] Even in that case, though, this proposition was not regarded as absolute and the Court acknowledged that a limited class of matters extrinsic to the text might properly be considered.[62] Thus, the majority (Knox CJ, Isaacs, Rich and Starke JJ) concluded that:

“The one clear line of judicial inquiry as to the meaning of the Constitution must be to read it naturally in the light of the circumstances in which it was made, with knowledge of the combined fabric of the common law, and the statute law which preceded it, and then lucet ipsa per se.”[63]

This permitted even the firmest adherence to literalism to take account of the complementary principle, stated before and after the Engineers’ Case, that the Court must also take account of the fact that the Constitution is “a statute of a special kind”.[64]

In Australian constitutional law, the primacy of the literalist approach is said to derive from the character of the text of the Constitution itself. As McHugh J observed:

“Because the Constitution is contained in a statute of the Imperial Parliament and the people of the Constitution have agreed to be governed under the Constitution, it seems obvious that the best guides to its interpretation are the general rules of statutory interpretation.”[65]

Further, adherence to this strong form of textualism has been strengthened by judicial commitment to the view that the legitimacy of the Court’s decisions in constitutional cases depends on the decision’s attachment to the Constitutional text. McHugh J identified this commitment in his dissent in Theophanous v Herald & Weekly Times Ltd, when he said:

“If this Court is to retain the confidence of the nation as the final arbiter of what the Constitution means, no interpretation of the Constitution by the Court can depart from the text of the Constitution and what is implied by the text and the structure of the Constitution. ... [T]his Court has consistently held that it is not legitimate to construe the Constitution by reference to political principles or theories that find no support in the text of the Constitution. ... [O]ne starts with the text and not with some theory of federalism, politics or political economy. The Engineers’ Case made it plain that the Constitution is not to be interpreted by using such theories ... unless those theories can be deduced from the terms or structure of the Constitution itself. It is the text and the implications to be drawn from the text and structure that contain the meaning of the Constitution.”[66]

This is, then, the supposed strength of the textual mode as applied in Australia: the mode apparently derives from an ultimate constitutional authority that is objectively ascertainable.

There is, however, a significant flaw in the assumption that the ‘literalist’ interpretive mode is a necessary outcome of the character of the Constitution. This is evident in the fact that the original members of the Court did not pursue this approach at all.[67] Instead, the early Court relied heavily on implications drawn from constitutional federal structure and relationships to develop the doctrines of immunities of instrumentalities and reserved powers. These doctrines were designed to take account of the distinctively federal character of the Constitution.[68] The Engineers’ Case not only approved textual primacy, it also closed the chapter on these doctrines. As Zines aptly said:

“In 1920 [in Engineers’ Case] the High Court in a sharp reversal of its earlier decisions and doctrines proclaimed that the role of the court was merely to construe the powers of the Commonwealth, without regard to the question of how much exclusive power was left to the states.”[69]

In giving primacy to the text over ‘federal’ structure, the Court necessarily adopted a more expansive reading of grants of power to the Commonwealth Parliament. Accordingly, literalism has also become associated with a more generous reading of Commonwealth powers than, perhaps, other approaches would entail.

In Australia, there has been much scholarly criticism of this literalist tradition. Thus, it may be that:

(1) In pursuing this highly textual mode, judges may make unwarranted claims to hold the constitutional high ground, particularly if they assume that the literal approach is the necessary outcome of the character of the Constitution.

(2) The mode makes only limited allowance for the significance of what might be broadly called ‘extrinsic circumstances’, whether historical or contemporary in nature.

(3) Interpreting in this mode may disguise the real part being played in a judge’s reasons by external factors.

(4) Interpreting in this mode may, as Saunders commented, “obscur[e] the constitutional character of unwritten principles and practices, except in the most obvious cases, and inhibi[t] their development as a source of constitutional strength.”[70] As she observed, to understand the language of the constitutional text requires some understanding of the common law.

(5) Interpreting in this mode may lead judges to disregard the importance of what the text does not say and the implications that ought properly be drawn from this silence and from textual structure.

(6) In giving primacy to the text, judges may give insufficient attention to fundamental constitutional assumptions and the learning in the authorities.

(7) In giving primacy to the words of the text, judges may focus overly much on what the text signifies to a reader today and pay insufficient regard to the significance of the text to an informed reader on 1 January 1901, when the Constitution first came into effect. The history of the interpretation of s 92 of the Constitution may illustrate this phenomenon. The Court was only able to reach some settled agreement on the scope of s 92 when it referred to the history of s 92, in order to identify “the contemporary meaning of the language used, the subject to which that language was directed and the nature and objectives of the movement towards federation from which the compact of the Constitution finally emerged”.[71]

These considerations mark out some of the limitations of the textual mode and signify why it is that interpretation from the text so often collapses into interpretation in some other mode. Hence, I have previously observed that, in SGH and Luton v Lessels, the textual approach, which began the Court’s enquiry, collapsed into an historical or structural analysis. The form of textualism used by the Court on these occasions relied less on the literal meaning of the words of the text and more on the meaning of the words viewed historically and by reference to the rest of the text read as a whole.[72]

Although the extent to which the High Court followed the literalist path has varied over time,[73] the literalist approach has continued to pervade the Court’s interpretive method. The majority judgment in the Work Choices Case is illustrative of this. The principal question presented in the majority’s judgment was one of characterization. Thus, the majority framed a central question as:

“whether a law that provides that a corporation of a kind referred to in s 51(xx) of the Constitution must pay its employees certain minimum wages, and must provide them with certain leave entitlements, and must not require them to work more than a certain number of hours, is a law with respect to such corporations”.[74]

The parameters of the contestable field were, in the majority’s analysis, marked out by the Engineers’ Case and Strickland v Rocla Concrete Pipes Ltd[75] (the Concrete Pipes Case).[76]

In the Work Choices Case, the point of the majority’s lengthy analysis of Huddart, Parker & Co Pty Ltd v Moorehead[77] (‘Huddart Parker’) was not merely to validate the overruling of that case by the Concrete Pipes Case.[78] This analysis also confirmed the majority’s adherence to the interpretive approach that derived from the Engineers’ Case.

The majority stated that Huddart Parker “was important for what it reveal[ed]] concerning assertions made about what the framers of the Constitution intended” and because the plaintiffs relied on the dissenting reasons of Isaacs J.[79] From their analysis the majority concluded that “no one view of the meaning of [the corporations power] commanded the assent of even a majority of the [early] court” and there was no “settled understanding” of the meaning and effect of the corporations power.[80] They identified the importance of the reserved powers doctrine to the reasoning of Griffith CJ and Barton and Connor JJ, as well as the importance in Isaac J’s reasoning of another distinction drawn by an earlier scholar in a different context.[81] They rejected the utility of this latter distinction for the purposes of the characterization of an exercise of legislative power.[82] At the same time, the majority validated the rejection of the doctrines of reserved powers and implied immunities in the Engineers’ Case. Underscoring their commitment to the text, the majority noted that the validity of the doctrines of implied immunities and reserved powers depended on their initial premise. They argued that, if one began from the text, and not from an initial assumption outside the text, the doctrines could not be supported as matters of necessary implication.[83] I interpolate here that this objection is not fatal to these doctrines since almost every argument from constitutional structure depends on an initial assumption: the critical question is whether that initial assumption is accepted as justified.

The critical validation of the Engineers’ Case was the majority’s evaluation that the case was “both a consequence of developments outside the law courts (not least a sense of national identity emerging during and after the First World War) and a cause of future developments”.[84] From this perspective, the Engineers’ Case was a virtually inevitable outcome of the progress of Australian history, from which there was no going back. That is, the justification for the Engineers’ Case lay, in the majority’s judgment, in nascent nationhood, rather than in the precedential value of authority or judicial fiat.

Thus, the majority’s analysis not only served to answer the framers’ intent arguments that were central to Callinan J’s reasoning and the historical argument on which Kirby J’s opinion depended, they also strengthened the legitimacy of the interpretive approach that flowed from the Engineers’ Case. This, in turn, served to negate the possibilities that the conciliation and arbitration power limited the corporations power, as Kirby J believed, or that ‘federal balance’ implications limited the corporations power, as Callinan J maintained.

For reasons to be discussed, apart from this reference to nationhood and the evolution of corporations law, in this process of interpretation, the majority derived little assistance from history and limited guidance from the authorities. They laid aside interpretation in the structural mode, whether said to arise from notions of a federal balance or some relationship with the conciliation and arbitration power. There remained the text and, perhaps, some prudential-ethical considerations, to which I return below.

Hence the question for the majority became a relatively simple one. Was there a sufficient connection between the Work Choices Act and the corporations power in order for the Act to be described as a law “with respect to ... foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth”? In non-contested constitutional doctrine, the sufficiency of this connection depends on the legal and practical operation of the exercise of legislative power. Since the Act “prescribe[d] norms regulating the relationship between constitutional corporations and their employees” (and the majority rejected any of the limitations that earlier authorities contemplated: see below) the conclusion that the Act lay within power was unremarkable.[85] This conclusion followed from an application of an interpretive approach deriving from the Engineers’ Case and a rejection of any limitation from history, constitutional structure, or the authorities.

Kirby J and Callinan J did not reason in the same interpretive mode as the majority. Both took a different view of the Engineers’ Case from the majority. Although Kirby J did not contest the Engineers’ Case and the Concrete Pipes Case[86] directly, he noted that the Engineers’ Case had been “criticised in recent years”. Further, his subsidiary argument against a “potentially radical shift of governmental responsibilities from the states to the Commonwealth” may be thought to resemble a modern form of the early reserved powers doctrine.[87] Kirby J rejected this latter suggestion, however, on the ground that “the rule of construction ... in the Engineers’ Case is not an absolute one” and did not “contemplate that the Federal Parliament could use its identified heads of power to destroy the states”.[88] This proposition is accepted in Australian constitutional law, although the majority rejected its application to Work Choices Case. Perhaps, Kirby J came close to conceding that he took a different (and weaker) view of the authority of the Engineers’ Case when he said that the Work Choices Case “present[ed] the intersection of two accepted, and basic, rules of constitutional interpretation”. The first was the Engineers’ Case and the second, so he said, “established at least since since Schmidt[89] in 1961, but given effect many times before and since, holds that particular grants of federal legislative power that are subject to expressed safeguards, restrictions or qualifications (or guarantees protecting identifiable persons or groups), require the modification of what would otherwise be ‘plenary’ federal powers”. [90]

Relevantly for the present discussion, Kirby J also took issue with the majority’s manner of interpretation. He argued that the language of the corporations power was not to be read in isolation from the preceding paragraphs of s 51.[91] Thus, he said:

“Context is critical to the understanding of communication by the use of human language. This is nowhere more so than in deriving the meaning of a constitutional text, typically expressed (as in the Australian instance) in sparse language, designed to apply for an indefinite time and to address a vast range of predictable and unpredictable circumstances.”[92]

For him, the critical question was the relationship of the corporations power to the conciliation and arbitration power. As discussed below, Kirby J reasoned in structural and historical modes to conclude that the content of the former was limited by restrictions inherent in the latter. A subsidiary and supporting argument for this related to the federal structure of the Constitution.[93]

In the structural mode

Callinan J trod a different path from the majority and from Kirby J (although he indicated that he did not disagree with the latter[94]). His judgment virtually began with a statement of what he regarded as the proper approach to constitutional interpretation in the Work Choices Case. He said:

“The sum of matters which should inform the proper construction are: the techniques employed from time to time by Justices of this court in construing the Constitution; the constitutional imperative of the maintenance of the federal balance; the fundamental canon of construction, the need to construe the Constitution as a whole; the reach, impact and meaning of the industrial affairs power conferred by s 51(xxxv) of the Constitution; the reach, impact and meaning of the corporations power; and the relationship between the two powers.”[95]

Leaving aside the matter of accepted techniques, most of the other matters mentioned by the judge are the bases of structural analysis and prudential-ethical considerations (as to which, see below). Structural analysis is, of course, also an accepted technique for constitutional interpretation, although it is not the only one. Constitutional decision-making has frequently involved prudential-ethical considerations.

Callinan J justified his adoption of a primarily structural mode at a number of levels. First, he did not place the Engineers’ Case at the centre of his interpretive firmament. Whilst apparently accepting that its principles were “still binding”, he expressed the view that other authorities:

“... suggest[ed] a realisation on the part of the court that the Engineers’ Case went too far in favour of the Commonwealth, and that any unqualified application of it had the capacity to reduce unacceptably the constitutional status and role of the States. The Engineers’ Case is part of the relevant history, but, as an examination of it will show, stands for little to assist in this case.”[96]

Indeed, his subsequent analysis circumscribed the significance of the Engineers’ Case and undermined its authority.[97] Thus, Callinan J referred, amongst other things, to the lack of satisfactory reasoning in the case, to what he regarded as its illegitimate disregard of federalism as a fundamental ‘policy’ of the Constitution, and to the fact that the Engineers’ Case overruled authority decided by individuals who were “closer in time, circumstances and knowledge to the Constitution”. He added:

“There are references in the joint judgment in the Engineers’ Case to the desirability, in the interpretation of the Constitution, of adherence to the ordinary, or the ‘golden’, or the ‘universal’ rules of construction of statutes. One such rule, to which lip service only seems to have been paid ... is the necessity to read an Act of Parliament, and by analogy, a constitution, as a whole ...”.[98]

In light of these sentiments, it is unsurprising that his Honour did not pursue the strictly textual approach of the majority and instead adopted an argument chiefly in a structuralist mode.

A related justification for this primarily structuralist approach was, so far as Callinan J was concerned, the absence of “consistency of interpretation of the Constitution by the justices of this court” over the history of the Court.[99] This conclusion followed, in part, from his rejection of the Engineers’ Case. The fact that the Constitution provided for a federation and a ‘federal balance’ was critical to his reasoning, the significance of which was validated by constitutional history (to which I turn below)[100] and by “elementary principles of construction” -- “that effect must be given to the intention, the objects and purposes of the document, and that it must be read and construed as a whole”.[101] The first of these principles reverts to an historical mode and the second, in Callinan J’s case, to a structural mode. The primacy of the latter mode so far as he was concerned, was underlined by his affirmation that considerations of federal balance and founders’ intent also provided legitimate ‘yardsticks’ to depart from settled authority.[102]

Callinan J’s analysis was dependent on the proposition that “the whole structure ... of the Constitution clearly mandates the co-existence of the Commonwealth and the states”.[103] This proposition relied on the distribution of powers between them, “notions of comity”, [104] and other specific provisions such as ss 102, 107 and 128. In essence, Callinan J held the Work Choices Act invalid because, if it were not, then the “reach of the corporations power” was “enormous”[105] and, I interpolate, inimical to the judge’s understanding of ‘federal balance’. So far as he was concerned, it was proper to take account of such a consequence in the process of constitutional interpretation. Hence, he said: “[t]he more expansive the industrial power can be seen to be, the more likely it is that the power is the only power of the Commonwealth to legislate about industrial affairs”.[106] Since the power had a large operation, then there was “a negative or restrictive implication of the absence of a conferral of industrial power elsewhere under s 51” (except in some limited areas).[107] It followed, on this reasoning, that the corporations power did not support the Work Choices Act.

In the structural mode continued

Structural analysis is commonplace in Australian constitutional interpretation. This form of analysis may take at least two forms. In the first, more straightforward form, the judge draws inferences from the structure of the constitutional text or a combination of provisions. In the second, the judge draws conclusions from “the nature of aspects of the system of government for which the Constitution makes provision”.[108] As we have seen, Callinan J adopted this latter form of structural analysis.

Speaking of the work of the High Court between 1989 and 2004, McHugh said that “[d]rawing conclusions from the logic of the structure of the institutions and principles established by the Constitution has also become a relatively familiar technique in relation to federalism, the separation of powers and in relation to the constitutional provisions that establish representative and responsible government”.[109] In my earlier commentary on the Court’s 2002 term,[110] I noted that, in Luton v Lessels,[111] structural analysis was favoured by Kirby J and in the joint judgment of Gaudron and Hayne JJ. The joint judgment concentrated upon the significance of the fact that, under the child support legislation, monies collected by the Commonwealth were paid into the Consolidated Revenue Fund in accordance with s 81 of the Constitution.[112] The joint judgment’s acceptance of the fact that the mere payment into the Fund did not make an exaction a tax rested very largely on a structural analysis of the interrelationship of ss 53-6 and ss 81-3 of the Constitution. The outcome of this analysis was that s 81 was “both the consequence of, and a necessary step in the effecting of, parliamentary control over taxation”.[113] This analysis, like virtually all structural analyses, depended upon the validity of the claim that a particular principle was implicit in the structure of government for which the Constitution provides and in the relationships created by the constitutional text. Having determined that a principle of parliamentary control over monies was to be inferred from these structures and relationships, it was open to the authors of the joint judgment to conclude, as they did, that, whilst every tax must be paid into the Consolidated Revenue Fund, not every payment made into the Fund was necessarily a tax.[114]

The contestable field of Callinan J’s reasoning is, plainly enough, his assumption that a concept of ‘a federal balance’ inheres in the federal and state polities for which the Constitution provides. Reference has already been made to the doctrines of immunities of instrumentalities and reserved powers. These were the outcome of arguments in the structural mode developed by the early Court to take account of the federal character of the Constitution.[115] As noted above, the Court rejected the arguments in this mode when it delivered judgment in the Engineers’ Case in 1920.[116] The majority adhered to this decision and rejected the concept of a federal balance. Callinan J’s judgment reverts to the approach of the original Court.

The merits of argument in the structural mode are patent. An argument in this mode takes the text of the Constitution as its beginning. Its cogency depends upon the strength of its claim to derive from the text considered as a whole and as a coherent document. Its weakness stems from its essentially inferential nature. The contestability of inferences from structure may be high and the cogency of the argument in this mode therefore low. As Sunstein commented in the context of the US Constitution, “[i]nferences from constitutional text and structure sometimes involve a large measure of discretion. In using these sources of law, we must often resort to ideas external to text and structure”.[117] Care therefore must be taken in drawing inferences from structure, and in claiming too much for the logical force of an argument in the structural mode.

As the history of the Court up to the Work Choices Case shows, sometimes the inferences from structure are strong and the answer they support recommends itself to the entire Court, whilst at other times, especially where the bases for inferences are contested, differences between members of the Court may arise from differences about the inferences that should be drawn. Ever since the Engineers’ Case the inferences to be drawn from the federal character of the Constitution have been in this debated field. In SGH, for example, the difference of opinion between Gummow J and Kirby J in SGH can be attributable to differences about the inferences that should be drawn from the federal character of the Constitution. Referring to matters of structure, as well as to the history of intergovernmental immunities, Gummow J observed in SGH that s 114 “no longer replicates any fundamental considerations of federalism which inform a present understanding of the Constitution”.[118] Kirby J took the opposite view and reached a contrary conclusion.[119]

In the historical mode

When I wrote about the historical mode in the context of the 2002 term of the High Court, I used the expression to signify “a mode of interpretation that relies upon the purpose or understanding of the Constitution’s framers and ratifiers to assist in the interpretive process”.[120] On reflection, this seems too narrow a way of describing the historical mode. In what follows, I use the expression to refer to the use of history as an interpretive style in constitutional cases.

The use of history in constitutional cases in the High Court has grown over the last two decades, although an historical approach can be traced to the earliest work of the Court.[121] Since Cole v Whitfield,[122] however, interpretation in the historical mode has become a well-accepted style of constitutional interpretation.

Given that the written Constitution is now over one hundred years old and unwritten constitutional law very much older, an historical approach to constitutional interpretation can be critical. Resort to primary sources, such as the record of the federal conventions of the 1890s, can assist in understanding the sense in which words in the text were used, and the concerns that prompted the inclusion of some provisions and not others. As Waugh has commented, “[t]he publication of the Convention Debates made Australia something of a constitutional laboratory.”[123]

In the Australian context, it should not be thought that the prevalence of the historical mode signifies that the High Court as a whole favours some form of originalism, according to which theory the Constitution should only, or principally, be interpreted according to the intentions of its drafters and ratifiers. The debate between originalists and non-originalists that derives from the United States has not found a large place on the judicial landscape in this country, although the Work Choices Case may indicate that it has at least one proponent on the current High Court.[124] As noted above, Callinan J included constitutional history amongst the matters to which he referred in interpreting the corporations power in the Work Choices Case. The judge went further than this, however, when he said that “’[o]riginalism’ so-called, is no less a proper interpretative tool than any other, and will often be an appropriate one.”[125] The majority in that case countered with the observation that:

“To pursue the identification of what is said to be the framers’ intention much more often than not, is to pursue a mirage. It is a mirage because the inquiry assumes that it is both possible and useful to attempt to work out a single collective view about what is now a disputed question of power, but then was not present to the minds of those who contributed to the debates.”[126]

The value of the historical mode in the Court’s armoury clearly depends on the nature of the interpretive problem. From a lawyers’ perspective, resort to the historical record can be especially useful in determining the meaning of an expression or word appearing in the Constitution.[127] In this circumstance, the inquiry is usually limited and no large question of historical method arises. Indeed, the inquiry is commonly about the meaning that words and expressions had for an earlier generation of lawyers and therefore an inquiry judges are qualified to make. At other times, interpretation in the historical mode can involve reference to matters of generally uncontested historical fact. Once again, these historical matters are commonly of a kind that judges might reasonably be expected to know and understand. The Court’s consideration of such matters as the development of sovereignty and the broad history of Australia’s relations with the United Kingdom in Sue v Hill[128] are illustrative of this.

On other occasions, individual judges have relied on generally accepted historical knowledge in a different way. In Luton v Lessels, for example, Kirby J referred to the significance of taxation in seventeenth century English constitutional history and in the constitutional history of the United States to provide the context in which to evaluate the likely importance attached to these matters by the framers of the Constitution.[129] As I have previously noted,[130] the historical knowledge that his Honour attributed to the framers provided the basis for the inferences he drew from the structure of the constitutional provisions on taxation - especially as to the relationship between ss 53 and 55.

History loomed large in the Work Choices Case. The use of history varied, however, in the three different judgments. In the majority’s judgment, the chief utility of history was to explain the apparent expansion of Commonwealth power, as well as to exclude other mooted interpretations of the relevant powers. Thus, history, for the majority, primarily served a non-interpretive purpose since the majority treated it primarily as explanatory of the current constitutional position. Its secondary purpose, which was an interpretive one, was to negate other interpretive possibilities.

First, according to the majority, the true reason for the apparent expansion of the corporations power was not any error in the settled authorities or misuse of settled principles of interpretation but “the fundamental and far-reaching legal, social, and economic changes in the place now occupied by the corporation, compared with the place it occupied when the Constitution was drafted and adopted, and when s 51(xx) was first considered in Huddart Parker”.[131] The majority mapped the legal, and some of the social and economic circumstances attending the development of corporations law prior to and contemporaneous with the Convention Debates. The majority concluded that it was not until after Salomon v Salomon,[132] in November 1896, that “the corporation ... emerged as the chief means through which individuals conducted business ventures”,[133] and that “the place of corporations in the economic life of Australia today is radically different from the place they occupied when the framers were considering what legislative powers should be given to the Federal Parliament”.[134]

Further, since the framers could not have foreseen this turn of events,[135] the majority found it was impossible “to attribute to them some intention about how this legislative power operates in respect of these or other subsequent legal, economic, and social developments”.[136] After tracing the discussion of the corporations power in the Debates themselves, the majority found that “the Convention Debates reveal very little about what those who framed the Constitution thought would fall within or outside the power”.[137] Accordingly, the majority rejected the kind of analysis that Callinan J chose to adopt.

The majority’s approach to the history of the conciliation and arbitration power was not dissimilar to its treatment of the history of the corporations power. The majority considered the history of the drafting of the conciliation and arbitration power and the significance of the terms in which it was expressed at the time it was introduced into the Constitution. The majority held that these considerations, as well as the economic and social context in which the power was introduced, did not support “the proposition to the effect that what was seen in the 1890s as an authority for legislative experimentation of a particular kind under the Constitution was to be the sole method open to the Parliament of the Commonwealth for legislating for industrial regulation”.[138] In so doing, the majority rejected the analysis favoured by Kirby J. Amongst other things, the majority found that: (1) the power dealt with “a narrower subject-matter than industrial matters or relations and their regulation”;[139] (2) the power did not contain a positive prohibition or restriction;[140] (3) at the time of the Convention Debates, “in Australia, as elsewhere, there was a concern with both the public disorder and the economic hardship which attended the strikes and lock-outs used by ‘capital’ and ‘labour’ in their disputes”;[141] and (4) “it was to be expected that ... the Constitution would encompass these matters, and do so at several levels”,[142] including by the provision of “the use of particular means to prevent and settle industrial disputes of a certain geographical character”.[143]

The majority also dealt shortly with the argument that the failed attempts by federal governments, by way of referendums, to expand the corporations power and to confer a general industrial relations power was relevant to constitutional interpretation. These were the referendums of 1910, 1912, 1926 and 1946. For a number of reasons, the majority found that “[t]here are insuperable difficulties in arguing from the failure of a proposal for constitutional amendment to any conclusion about the Constitution’s meaning”.[144] Fundamentally, there was what the majority termed “a problem of equivalence”. That is, the question before the Court was different from the proposals defeated at referendums.

The majority appreciated that, when the meaning and operation of the Constitution was controversial, only the High Court could give an authoritative answer.[145] Other constitutional actors, such as the electors at referendums, had different and distinct roles to play. In this instance, the basis for the rejection of an interpretive argument in the historical mode depended on an appreciation of the political and judicial processes for which the Constitution provides, that is, an argument in the prudential-ethical mode (see below).

Comparing the majority and the dissenting judgments highlights the fact that a central difficulty facing a judge using an historical approach is to determine the relevance of the historical data and assess its proper limits. Thus, the difference between Kirby J and the majority concerned the interpretive relevance of the largely uncontested historical facts.[146] In contrast with the majority, Kirby J considered an understanding of history fundamental to an understanding of the way meaning was attributed to the Constitution.[147] Though not an originalist, the study of history provided him with a rational basis for constitutional interpretation and evolution.

Thus, Kirby J used history to justify the inferences that supported his structural analysis of the relationship of the conciliation and arbitration power to the corporations power. This history did not primarily derive from the Convention Debates but from previous legislation and cases, referendums, and constitutional practice. Kirby J maintained that the Conciliation and Arbitration Act 1904 (Cth), its history and the litigation concerning it were relevant because they provided the constitutional context “in which, for more than a century, legislators and courts in Australia assumed that any law enacted with respect to industrial disputes had to conform to the limitations imposed by s 51(xxxv).[148] He maintained that, while past decisions did not settle the issue before the Court, “the past [was] clearly of great importance in reaching a conclusion based on the constitutional text”.[149] He argued that the history of the decisions on the conciliation and arbitration power, and the Convention Debates, supported the propositions that: (1) the power was the only constitutional source for federal legislation that might be characterised as law with respect to “industrial disputes”, “industrial relations” or “workplace relations”; (2) the power contained two “safeguards, restrictions or qualifications”; and (3) these safeguards were “interstateness” and provision for dispute resolution through conciliation or arbitration.[150]

For Kirby J, the history with which he was concerned included the failed referendums.[151] Relevance flowed, in his view, from the fact that constitutional legitimacy derived from the people, and the referendums evidenced their refusal, over time, to approve the creation of a general power over industrial relations. He concluded:

“In my view, the long-held and shared assumptions, given effect by this court, involved a correct view of the grant of legislative power in this respect to the Federal Parliament. The applicable grant of power imported a safeguard, restriction or qualification protective of all those involved in collective industrial bargaining: employer and worker alike. It provided a constitutional guarantee of fairness and reasonableness in the operation of any federal law with respect to industrial disputes, including for the economically weak and vulnerable. It afforded machinery that was specific to the concerns of the parties, relatively decentralised in operation and focused on the public interest in a way that laws with respect to constitutional corporations made in the Federal Parliament need not be. These values profoundly influenced the nature and aspirations of Australian society, deriving as they did from a deep seated constitutional prescription. They should not be swept aside lightly by this court. Doing so would renounce an important part of the nation’s institutional history and the egalitarian and idealistic values that such history has reinforced in the field of industrial disputes and employment standards because of the constitutional prescription.”[152]

Plainly enough, prudential-ethical considerations suffused his Honour’s construction of the historical record.

Relying on this construction, Kirby J held that the corporations power was subject to various limitations arising from other paragraphs of s 51, including (xxxv) – the conciliation and arbitration power.[153] Since the Work Choices Act was a law with respect to the subject matter of s 51(xxxv) and it did not comply with the requirements in s 51(xxxv), the Act was, in his view, invalid.[154] Perhaps, Kirby J’s ultimate interpretive argument was in the structural mode, however, since he held that:

“The textual foundation for the importation of such restriction is the structure of the Constitution and its federal character, inherent in its overall expression and design. But it can also be found in the clear statement in the opening words of s 51 that each grant of legislative power in that section is made ‘subject to this Constitution’. That expression obviously includes the other provisions in s 51, including para (xxxv). It also includes the federal character of the Constitution that pervades its entire provisions.”[155]

As foreshadowed above, history was also central to Callinan J’s reasons. He too used history, especially as derived from the Convention Debates, to support the inferences he drew about constitutional structure. According to his Honour, the Convention Debates showed that “any federal power in relation to industrial affairs was to be confined to those of an interstate character, and that the former colonies were to retain power over internal industrial disputes”.[156] As well, Callinan J, like Kirby J, relied on the history of the Conciliation and Arbitration Act 1904 (Cth), decisions concerning it, and the failed referendums to support his understanding of the purpose and scope of the conciliation and arbitration power.[157] He traced the “great reach” of the power as developed by the Court over time and concluded that since it covered so much it represented the totality of federal power over industrial affairs.[158] Callinan J regarded the referendums as particularly compelling “because of the repetitiveness and ingenuity of the attempts made by the Commonwealth to gain power”.[159] The Court, should not, he said, disregard that history since the “people have too often rejected an extension of power to do what the Act seeks to do”. In the same place, he added that “[t]o ignore the history would be, not only to treat s 128 of the Constitution as irrelevant, but also for the court to subvert democratic federalism for which the structure and text of the Constitution provide”.[160]

In stating that the corporations power received only “the most cursory of attention during the debates”, Callinan J agreed with the majority. He departed from them, however, when he concluded from this that “[i]t is inconceivable that the founders visualised a power as broad as the one asserted”.[161] Noting that the principal preoccupation of the delegates was relatively narrow (the adjustment of powers between the new polity and the states), he concluded that, “if the corporations power were intended to abrogate so much industrial power as would otherwise be within state power, as the majority hold, the possibility and the desirability of that abrogation would have been of intense concern to the founders”.[162]

Reference to history can lend authenticity and authority to an interpretive argument.[163] This is partly because the historical mode creates a contextual frame of reference about the matters in dispute, which is also removed from the litigating parties and the judges. Recognizing this, both dissenting judgments relied on historical analysis to justify the inferences upon which their structural arguments depended.

The judgments in the Work Choices Case demonstrate that some care needs to be taken, however, to ask questions that can properly be answered from the historical record. As Waugh commented:

“Historians find multiple intentions and diverse experiences in federation, 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.”[164]

The judges’ choice of question reflects their assessment of the limits of legitimate historical inquiry as well as the assumptions that underpin their reasoning. For example, all the Court assumed that an inquiry into the reasons for the introduction of the two relevant heads of power was a legitimate historical inquiry, to be answered within the limits of the primary sources. Put another way, an inquiry into the context in which the framers acted and the choices they made was appropriate. Only Callinan J treated specific questions about the framers’ intent as suited to historical inquiry. The majority dismissed the utility of inquiry into intent on the basis that the historical data indicated that the framers had none that was relevant.[165]

Used carefully, the historical mode can greatly assist interpretive inquiry about the meaning and purpose of constitutional provisions. As Waugh said, “the emphasis on historical context guards against one of the major failings of what the Americans call ‘law-office history’”.[166] The mode has, however, its own dangers. First, its use may not suit the interpretive problem. The Work Choices Case illustrates the problem of silence in the historical record. Whilst the majority held that the Convention Debates provided no relevant evidence, Callinan J, by contrast, drew a strong negative inference from the very sparseness of the material. Caution is, however, called for when the record is silent. Plainly, there is a risk that the reader will read into the silence a significance that it does not have.[167] If negative inferences are to be accepted, they must find strong positive support from elsewhere in the historical record. Further, the Work Choices Case demonstrates that care must be taken in deciding on the sources that are relevant to the issue at hand, as well as in assessing which of these sources are likely to be the most reliable. There is also a need to consider the appropriate level of generality to describe the effect of the relevant historical data. At each turn in using this mode, there is room for serious differences of judicial opinion.

In the doctrinal mode

Writing about the constitutional cases of the 2002 term, I concluded that “the common law constitutional method took priority over other interpretive approaches”.[168] Others writers have also described the modern Court’s approach as primarily driven by the prior authorities.[169] I used the term “doctrinal” to describe this common law constitutional method. In so going, I drew on the work of scholars in the United States.[170] I continue to use this term because it is convenient, although the longer expression “common law constitutional method” might be more accurate. In other words, the term “doctrinal” is not intended to carry any value-added significance. In referring to interpretation in the doctrinal mode, I mean the application and adaptation of constitutionally relevant principles, rules or ideas derived from previous authorities in accordance with common law method or, more accurately, methods. I am indebted to Saunders for this way of describing the mode.[171]

As Saunders noted, the common law affects constitutional interpretation in a number of ways.[172] First, the Constitution exists within a common law legal system. Secondly, words and expression in the Constitution derive from the common law. Thirdly, the institutions established by the Constitution are governed by the common law. Finally, constitutional interpretation depends in large part on the common law method. Naturally, these matters are inter-related. In sum, the doctrinal mode of interpretation is fundamental to Australian constitutionality. It is, therefore, unsurprising that it is a mode of interpretation in constant use.

For example, when writing about the 2002 term,[173] I noted that, in Luton v Lessels, [174] Gleeson CJ (with whom McHugh J agreed) focussed on the significance of the decision in Australian Tape Manufacturers Association Ltd v The Commonwealth[175] for Mr Luton’s case. Using orthodox common law method, the Chief Justice distinguished this earlier case from Mr Luton’s on the ground that, in the earlier case, the revenue was designed to compensate a group who had no prior legal entitlement to compensation. In contrast with this, in Mr Luton’s case, the debt due to the Commonwealth merely replaced a debt due to the eligible carer. The result was that the suggested “taxation” was, in Gleeson CJ’s view, “no more than a mechanism for the enforcement of a pre-existing private liability”.[176] Similarly, in SGH, the joint judgment of the Gleeson CJ, Gaudron, McHugh and Hayne JJ relied most on the earlier decision in Deputy Commissioner of Taxation v State Bank of New South Wales.[177] The joint judgment declined to enter “the troubled waters of more general questions about the preferable approach to constitutional interpretation”[178] upon the ground that the argument in the Court depended on acceptance of the State Bank Case.

The majority judgment in the Work Choices Case did not depart from the common law method, although its interpretive reasoning depended less on doctrine than on textual considerations. The majority’s approach was, therefore, different in the Work Choices Case from the constitutional cases of the 2002 term. The judgment itself suggested that a reason for this was the lack of any prior authoritative decision. When the majority judgment and the judgments of Kirby J and of Callinan J are compared, however, it appears that differences in the judgments’ use of common law method flowed principally from differences between their authors about the role of the High Court in constitutional review, federalism under the Constitution, and the constitutional location of social and economic values.

By using the common law plough, the majority cleared the constitutional field of the ideas that had been mooted in past case and that were designed to limit the corporations power. The majority’s treatment of the prior authorities depended heavily on the proposition that caveats on the reach of the corporations power finding root in prior cases were to be understood as products of the background against which those cases were decided. The Banking Case[179] was “of little direct assistance” because the Work Choices Act was not properly characterised as a law with respect to the two relevant heads of power, that being the context in which certain remarks within the earlier case should be understood. Certain observations of Barwick CJ and of Menzies J in the Concrete Pipes Case were put aside on the ground that “what was said was no more than the proper marking of a limit to what was being decided in a case where the law in question was being addressed to all persons, not constitutional corporations in particular”.[180] Fontana Films[181] was, so the majority said, to be understood in the light of the argument presented to the Court, namely, that there was a valid distinction between laws that regulate or prohibit trading activities of a corporation and laws that strike at the activities of others because they interfere with the activities of such a corporation. The discussion in the Tasmanian Dams Case[182] was, so the majority held, “moulded by the terms of the legislation under consideration and the arguments advanced in the case”.[183] Furthermore, the majority rejected as unsatisfactory because unworkable, uncertain or productive of illogical results the various tests that had, from time to time, been put forward by judges in earlier cases.[184] Finally, the majority noted that in Re Dingjan, “[e]ach member of the majority expressed the reasons for concluding that the provision was invalid in different words”.[185] It was therefore open to the majority to prefer the analysis of the dissenting members of the Court (Mason CJ, Deane and Gaudron JJ) as amplified by Gaudron J, in dissent, in the subsequent case of Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union.[186]

The second principal use of the doctrinal mode, or common law method, in the Work Choices Case was to set up a bulwark against the implications from structure that Kirby J and Callinan J desired to draw. The majority held that “[t]he course of authority ... denie[d] to para (xxxv) a negative implication of exclusivity which would deny the validity of laws with respect to other heads of power which also had the character of laws regulating industrial relations in a fashion other than as required by para (xxxv)”.[187] The well-established authority of Pidoto v Victoria[188] was significant in the course of this authority and both the dissenting judgments of Kirby J and of Callinan J devoted special attention to it.

Kirby and Callinan JJ also emphasized that the outcome of the Work Choices Case was not directly controlled by any prior authority.[189] Callinan J relied on the fact that no majority of the Court had previously accorded the corporations power a reading that would extend to “each and every aspect of a corporation, its activities and its employees”. He referred to the limits on the power that judges over the years had posited in relation to it.[190]

Kirby J reasoned from cases on express exclusions from power[191] and on powers subject to a guarantee[192] that the conciliation and arbitration power contained a “safeguard, restriction or qualification” that also resulted in limitations on a purported exercise of the corporations power. Kirby J distinguished prior and otherwise inconsistent authorities, such as Pidoto v Victoria.[193]

I interpolate that reasoning by analogy with pre-existing principles, rules and ideas is a well-accepted common law method. In this way, the method promotes flexible and imaginative applications of the decisions of the past to the questions of the present. This mode of interpretation can encourage the gradual accretion of understanding about the validity of a particular interpretive outcome. It lends itself to facilitating incremental modification of a received interpretation as this understanding alters. The outcome of the technique is likely to be best accepted, however, when it apparently conforms to past authorities. When the outcome is apparent inconsistency with these authorities, the application of this technique is likely to be contested.

Callinan J’s challenge to some previously accepted authorities, especially on the doctrine of indirect operation,[194] was direct and extensive.[195] He directly contested the reasoning in the Concrete Pipes Case, which, so he said, did not stand in the way of his conclusion and, in any event, he would not follow.[196] I have already referred to his criticism of the Engineers’ Case, and his Honour’s associated appeal to the yardsticks of founders’ intent and federal balance to justify departure from previous authorities.[197] The concept of federal balance was, in his Honour’s view, anchored in the authorities.[198] Like Kirby J, Callinan J also distinguished other prior and otherwise inconsistent authorities, such as Pidoto v Victoria.[199]

Common law methods of interpretation may be qualified or modified by the constitutional context in which they are applied. It is open to the High Court in an appropriate case to depart from and overrule previous authorities when it is persuaded that, for some sufficient reason, the principles embodied in them should no longer govern.[200] There are, however, a variety of techniques short of overruling that the judges of the Court may employ to weaken or circumscribe the force of prior authorities. Some of these techniques were evident in the three judgments in the Work Choice Case. Their use in this case shows how the practice of the common law method in constitutional cases can be more deliberate than in other kinds of cases. In the constitutional context, judges are, as in this case, called on to articulate clearly the basis for not according authoritative status to prior pronouncements apparently relevant to the question before it.

.

The virtues of the doctrinal mode or common law method are largely the virtues of the common law. In interpreting the constitutional text by reference to prior authorities, the Court promotes the values of continuity, consistency, stability and predictability. Hence all the judgments in the Work Choices Case anchored their key principles or ideas to authority. By promoting the virtues of the common law - continuity, consistency, stability and predictability - the judges enhanced the legitimacy of their decisions.[201] That is, the Work Choices Case showed again that common law virtues were also constitutionally relevant values.[202]

In the constitutional work of the 2002 term, the prior authorities limited the nature of the choices open to a judge in the interpretive process. Some American scholars have made much of the tendency of the common law method to constrain judges more than other methods.[203] The Work Choices Case illustrates, however, that this tendency can be overstated, particularly when there is a dearth of authority directly on the issue falling for the Court’s determination. The case demonstrated that judges skilled in the common law method can employ a variety of techniques to diminish the constraining effect of the past.

Finally, the method of the common law might be seen as conducive to consensus on constitutional principles because these at least are treated as fixed by long-standing authorities. There was some evidence of this in the work of the Court in the 2002 term.[204] In the Work Choices Case the five-judge majority agreement about the continuing strength of the interpretive principles stated in the Engineers Case provided further evidence of this. The Work Choices Case also showed that any claims for this attribute must be tempered by the realisation that, in a constitutional case at least, much depends on the individual perspective of the judge and the point from which the judge begins to answer the questions that fall for determination.

In the prudential-ethical mode

The prudential-ethical interpretive mode may be the most complex of the interpretive modes. The mode is a constitutional argument that relies on economic, social, political or ethical considerations attending the case.[205] It includes what may be regarded as fundamental assumptions about the relationships constitutional institutions ought to have with one another and the Australian people. The mode is self-consciously or expressly evaluative but it is not for that reason an illegitimate style. Indeed, in many, if not all, cases, this interpretive mode may be an essential and unavoidable part of decision-making. In the American scholarly context, the interpretive mode has a long and respected history. Thus, for example, Bickel argued that a function of the US Supreme Court justices was “to immerse themselves in the tradition of our society and of kindred societies that have gone before, in history and in the sediment of history which is law” and extract from this study “fundamental presuppositions” about government and society.[206]

Writing about the constitutional cases of the 2002 term, I concluded that “most of the Court at one time or another adopted a prudential-ethical mode of interpretation”.[207] On that occasion, I also said that ‘[u]nless tied firmly to the constitutional text and the commitments, values and principles embedded in the Commonwealth Constitution, the prudential-ethical mode is the most difficult of the interpretive modes to justify as part of the Court’s interpretive method”. Plainly enough, the use of the prudential-ethical can permit commitments, values and principles that lack constitutional foundation to permeate constitutional decision-making.

In the Work Choices case, the dominant prudential-ethical considerations were different in each of the three judgments that were delivered. Kirby J’s judgment focused on the importance of context to meaning and on institutional relationships and responsibilities. He discerned these relationships and responsibilities in the history of Australian society, especially the history of conciliation and arbitration. He found in this history “the important guarantee of industrial fairness and reasonableness that has been secured by this court’s adherence to the requirements of s 51(xxxv) over a century”.[208] Thus, he observed that “[f]rom the earliest days of federation, compulsory conciliation and arbitration ... became a distinctive characteristic of the Australian industrial and workplace system”.[209] He affirmed that the effect of the history of s 51(xxxv) “profoundly affected the conditions of employment, and hence of ordinary life, of millions of Australians”.[210] He concluded that the Court had correctly “contributed to, and generally upheld, the industrial fairness guarantee by its decisions on the ambit of the federal power with respect to industrial disputes”[211] and that, accordingly, the conciliation and arbitration power should be seen to import a guarantee of industrial fairness and reasonableness in the operation of federal law with respect to industrial disputes.[212]

Callinan J placed paramount importance on the maintenance of the federal balance and the framers’ intent. In his analysis, being faithful to the framers’ intent was critical to the legitimacy of constitutional review. The federal balance, or what he termed “a sharing of power” between the Commonwealth and States, had an independent existence and was of fundamental constitutional importance. For Callinan J, the Court had a central role in protecting this balance, which was presumably capable of independent ascertainment.[213] He affirmed that the Court went “beyond power if it reshapes the federation”, [214] as in his view it did in the Work Choices Case.

Kirby J found common ground with Callinan J on the matter of federalism. The federal character of the Constitution was, he said, important, because of its “liberty-enhancing feature”.[215] This conception of federalism was, however, essentially different from that of Callinan J’s. Thus, for Kirby J (though not especially for Callinan J):

“Federalism is a system of government of special value and relevance in contemporary circumstances. It is protective of the freedom of individuals in an age when the pressures of law, economics and technology tend to pull in the opposite direction”.[216]

As we have seen, the Engineers’ Case was critical to the interpretive orientation of the majority’s judgment. The ultimate justification for the Engineers’ Case in the majority’s consideration was as an expression of nationhood. In holding there was no need to confine the operation of the corporations power to take account of the potential consequences of its wide sweep for the concurrent legislative authority of the States, the majority accorded primacy in the area of the power to the Commonwealth Parliament. This was a product of its acceptance of the Engineers Case and the orientation that it required. So far as the majority was concerned, possible consequences, social and otherwise, were not matters appropriate for the Court but for the Parliament (and ultimately the electors).[217] The majority rejected the notion that the Court should regulate the powers of the Commonwealth Parliament and the Parliaments of the States in order to secure some federal balance. They commented that “[r]eferences to the ‘federal balance’ carry a misleading implication of static equilibrium, an equilibrium that is disturbed by changes in constitutional doctrine such as occurred in the Engineers’ Case, and changes in circumstances as a result of the First World War”. [218] The majority did not attribute any kind of paramountcy to the modes of dispute resolution that were the subject of the conciliation and arbitration power and did not find the safeguards for which Kirby J argued in the history of the power.

The prudential-ethical considerations that moved the Court in the Work Choices Case reflected each judge’s understanding of some fundamental political, social and economic values that each believed inhered in the Constitution. The differences between the three judgments were serious and incapable, so it would seem, of resolution. Interpretation in the prudential-ethical mode can, as in this case, create or draw attention to irreconcilable differences in perspective between members of the Court. The publication of these differences has the capacity to undermine perceptions of institutional and decisional legitimacy. Perhaps this is why, in the main, the Court has traditionally used the prudential-ethical mode as no more than a secondary mode of interpretation.

CONCLUSION

In conclusion, choice of interpretive mode plainly matters. The work of the Court in the Work Choices Case can be contrasted with the work of the Court in the 2002 term, when it adopted a primarily doctrinal approach. Use of the doctrinal mode in 2002 promoted the constitutional values of continuity and stability. Disagreement over fundamental constitutional assumptions and values in the Work Choices Case may expose the Court to widespread and vigorous debate. The majority have, however, secured their interpretive approach in settled authority and their interpretive argument in the text. In this way, they have claimed continuity with the past and the ultimate authority of the Constitution.

In the Work Choices Case, the majority gave primacy to the text over any other interpretive mode. This is broadly consistent with Gummow J’s earlier statement that the law of the Constitution is to be perceived from the text and the reports of the cases decided by the Court. Prudential-ethical considerations, however, informed the majority’s textual approach. That is, considerations of nationhood and national economic life permeate the majority’s reasoning.

Is the majority’s interpretation of the corporations power built to last? It is clearly supported by the textual mode in which it is primarily argued and, at least within its own parameters, is not inconsistent with the historical, structural or doctrinal modes. It would appear that it is built to last.[219] The weaknesses of the majority’s approach are the weaknesses of any interpretation in this mode. Kirby and Callinan JJ’s judgments pinpoint these weaknesses as being insufficient attention to constitutional implications and assumptions.

Callinan J argued in the structural mode. The cogency of his argument depended on its claim to derive from the text considered as a whole. Like any interpretive argument in this mode, it may or may not win acceptance on account of the perceived strengths or weaknesses of the inferences on which it depends. Interpretive arguments in this mode are commonplace in constitutional decision-making but, in this case, the argument in the structural mode collided with interpretive arguments in textual and doctrinal modes.

Kirby J gave primacy to an interpretive argument in the historical mode, although his ultimate position depended on an argument from textual structure. He used these two interpretive modes to support one another, with prudential-ethical arguments as the glue. These interpretive approaches had a tendency to collide with interpretation in the doctrinal mode, a result his Honour sought to avoid by the common law technique of reasoning from analogy.

In the Work Choices Case, the five modes of interpretive analysis occur in each of the three different judgments. The judges’ choice of primary interpretive mode reflected constitutional preferences. In preferring one mode of interpretation to another, judges not only contributed to the interpretive mix of the Court, they also disclosed the nature of the choices that were open to them and the reasons why they made those choices. We need to understand these choices and reasons for making them to evaluate the work of the Court properly, and to understand how it has sought, and seeks still, to discharge its constitutional mandate in this and other constitutional cases.

[1] Judge of the Federal Court of Australia. BA (Hons) (Melb), LLB (Hons) (Melb), D Phil (Oxon).

[2] See, e.g., Francis Lieber, ‘Legal and Political Hermeneutics’ in Classics in Legal History (1970); Charles McIlwain, Constitutionalism, Ancient and Modern (1947); Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics, (2nd ed, 1986); Charles L. Black Jr., Structure and Relationship in Constitutional Law (1989); Philip Bobbitt, Constitutional Fate: Theory of the Constitution (1982); Ronald Dworkin, A Matter of Principle (1985); Mark Tushnet, Red, White and Blue: A Critical Analysis of Constitutional Law (1988); Sanford Levison and Steven Mailloux (eds), Interpreting Law and Literature: A Hermeneutic Reader (1988); Sandford Levison, Constitutional Faith (1988); Stanley Fish, Doing What Comes Naturally: Change, Rhetoric and the Practice of Theory in Literature and Legal Studies (1989); Robert H Bork, The Tempting of America: The Political Seduction of the Law (1990); Cass R. Sunstein, After the Rights Revolution: Reconceiving the Regulatory State (1990); Cass R Sunstein, The Partial Constitution (1993); Earl M. Maltz, Rethinking Constitutional Law: Originalism, Interventionism, and the Politics of Judicial Review (1994); Ronald Kahn, The Supreme Court and Constitutional Theory, 1953-1993 (1994); Philip Bobbitt, Constitutional Interpretation (1991); Gregory Leh (ed), Legal Hermeneutics: History, Theory and Practice (1992); Scott Douglas Gerber, To Secure These Rights: The Declaration of Independence and Constitutional Interpretation (1995); Gregory Bassham, Original Intent and the Constitution: A Philosophical Study (1992); William Harris II, The Interpretable Constitution ( 1993); Cass R Sunstein, Designing Democracy: What Constitutions Do (2001); and a host of journal articles, including Philip Kissam, ‘Triangulating Constitutional Theory: Power, Time, and Everyman’ (2006) 53 Buffalo Law Review 269; Richard Fallon Jr, ‘How to Choose a Constitutional Theory?’ (1999) 87 California Law Review 535; Lawrence Lessig, ‘Fidelity and Constraint’ (1997) 65 Fordham Law Review 1365; David A Strauss, ‘Common Law Constitutional Interpretation’ (1996) 63 University of Chicago Law Review 877; Michael Gerhardt, ‘The Role of Precedent in Constitutional Decisionmaking and Theory’ (1991) 60 George Washington Law Review 68; Henry Monaghan, ‘Stare Decisis and Constitutional Adjudication’ (1988) Columbia Law Review 723; Daniel Farber, ‘Legal Pragmatism and the Constitution’ (1988) 72 Minnesota Law Review 1331; Richard Fallon Jr, ‘A Constructivist Coherence Theory of Constitutional Interpretation’ (1987) 100 Harvard Law Review 1189; Ernesto Sanchez, ‘A Case Against Judicial Internationalism’ (2006) 38 Connecticut Law Review 185; and Philip Racusin, ‘Looking At The Constitution Through World-coloured Glasses: The Supreme Court’s Use Of Transnational Law in Constitutional Adjudication’ 28(3) Houston Journal of International Law 913.

[3] See, e.g., Leslie Zines, ‘Social Conflict and Constitutional Interpretation’ [1996] MonashULawRw 9; (1996) 22 Monash University Law Review 195; Adrienne Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ [1999] MelbULawRw 26; (1999) 23 Melbourne University Law Review 668; George Williams, ‘Engineers is Dead, Long Live the Engineers!’ (1995) 17 Sydney Law Review 63; Kristen Walker, ‘International Law as a Tool of Constitutional Interpretation’[2002] MonashULawRw 4; , (2002) 28 Monash University Law Review 85; Greg Craven, ‘Heresy as Orthodoxy: Were the Founders Progressivists?’ [2003] FedLawRw 3; (2003) 31 Federal Law Review 87; Jeremy Kirk, ‘Constitutional Implications (I): Nature, Legitimacy, Classification, Examples’ [2000] MelbULawRw 26; (2000) 24 Melbourne University Law Review 645; Jeffrey Goldsworthy, ‘Interpreting the Constitution in its Second Century’ [2000] MelbULawRw 27; (2000) 24 Melbourne University Law Review 677; Jeffrey Goldsworthy, ‘Constitutional Implications and Freedom of Political Speech: A Reply to Stephen Donaghue’ [1997] MonashULawRw 22; (1997) 23 (2) Monash University Law Review 362; Jeffrey Goldsworthy, ‘Originalism in Constitutional Interpretation’ [1997] FedLawRw 1; (1997) 25 Federal Law Review 1; Anthony Mason, ‘The Interpretation of a Constitution in a Modern Liberal Democracy’ in Charles Sampford (ed), Interpreting Constitutions: Theories, Principles and Institutions (1996) 13; Geoffrey Lindell, ‘Recent Developments in the Judicial Interpretation of the Australian Constitution’ in G. J. Lindell (ed), Future Directions in Australian Constitutional Law (1994); Leslie Zines, ‘The Present State of the Constitution’ in Adrienne Stone and George Williams (eds), The High Court at the Crossroads: Essays in Constitutional Law (2000); Graeme Hill, ‘”Originalist” vs “Progressive” Interpretations of the Constitution – Does it Matter?’ (2000) 11(3) Public Law Review 159; Greg Craven, ‘Cracks in the Façade of Literalism: Is there an Engineer in the House?’ [1992] MelbULawRw 2; (1992) 18 Melbourne University Law Review 540; Haig Patapan, ‘High Court Review 2001: Politics, Legalism and the Gleeson Court’ (2001) 37(2) Australian Journal of Political Science 241; Leslie Zines, ‘Legalism, realism and judicial rhetoric in constitutional law’ (2002) 5(2) Constitutional Law and Policy Review 21; Dan Meagher, ‘Guided By Voices? – Constitutional Interpretation On The Gleeson Court’ [2002] Deakin Law Review 14; Christopher Birch, ‘Mill, Frege and the High Court: The connotation/denotation distinction in constitutional interpretation’ (2003) 23 Australian Bar Review 296; Leslie Zines, ‘Dead Hands or Living Tree? Stability and Change in Constitutional Law’ [2004] AdelLawRw 2; (2004) 25 Adelaide Law Review 3; BM Selway, ‘Methodologies of constitutional interpretation in the High Court of Australia’ (2003) 14 Public Law Review 234; Cheryl Saunders, ‘Interpreting the Constitution’ (2004) 15 Public Law Review 289; Michael McHugh, ‘The Constitutional Jurisprudence of the High Court: 1989-2004’, The Inaugural Sir Anthony Mason Lecture in Constitutional Law delivered 26 November 2004, Banco Court, Sydney, www.hcourt.gov.au/speeches/mmchughj_26nov04.html; WMC Gummow, ‘The Constitution: Ultimate Foundation Of Australian Law?’ (2005) 79 Australian Law Journal 167; Devika Hovell and George Williams, ‘A Tale of Two Systems: The Use of International Law in Constitutional Interpretation in Australia and South Africa’ [2005] MelbULawRw 3; (2005) 29 Melbourne University Law Review 95; Adrienne Stone, ‘Australia’s Constitutional Rights and the Problem of Interpretive Disagreement’ [2005] SydLawRw 2; (2005) 27 Sydney Law Review 29; Andrew Lynch, ‘Does the High Court Disagree More Often in Constitutional Cases? A Statistical Study of Judgment Delivery 1981-2003’ 33 Federal Law Review 485.

[4] I continue to use the expression “constitutional case” to signify a case in which an issue arose involving the constitution of the Commonwealth of Australia or of an Australian State: see Susan Kenny, ‘The High Court on Constitutional Law: The 2002 Term’ [2003] UNSWLawJl 10; (2003) 26(1) UNSW Law Journal 210, n 2, citing Stephen Gageler, ‘The High Court on Constitutional Law: The 2001 Term’ [2002] UNSWLawJl 8; (2002) 25(1) UNSW Law Journal 194.

[5] Greg Craven, ‘How High Court failed us’, Australian Financial Review, Friday 24 November 2006.

[6] See also George Williams, ‘Ruling beefs up federal muscle at expense of states’, Canberra Times, Wednesday 15 November 2006; Andrew Lynch, ‘The die is cast, and it is time to reshape Australian federalism’ Sydney Morning Herald, Wednesday 15 November 2006; Simon Evans, ‘Federation in tatters’, Sydney Morning Herald, Saturday 18 November 2006; and Editorial. ‘The High Court and Federalism’, Quadrant, January–February 2007, vol LI, no. 1-2, 1-4.

[7] See, e.g., Leslie Zines, above n 3, 22 Monash University Law Review at 208; Greg Craven, ‘Industrial Relations, The Constitution And Federalism: Facing The Avalanche’ [2006] UNSWLawJl 11; (2006) 29(1) University of New South Wales Law Journal 203 (though arguing against such an outcome); Ron McCallum, ‘The Australian Constitution and the Shaping of Our Federal and State Labour Laws’ (2005) 10 Deakin Law Review 461 (also arguing against the result); and compare Leslie Zines, above n 3, 25 Adelaide Law Review at 19.

[8] Greg Craven, above n 5.

[9] See, e.g., SGH Ltd v Commissioner of Taxation [2002] HCA 18; (2002) 210 CLR 51, at 75 (Gummow J), 86-87 (Kirby J); Re Wakim; Ex parte McNally (1990) 198 CLR 511, at 554-6 (McHugh J); Eastman v R (2000) 203 CLR 1, at 44-51 (McHugh J); Newcrest Mining (WA) Limited v Commonwealth of Australia [1997] HCA 38; (1997) 190 CLR 513, at 657-661 (Kirby J); and Kartinyeri v Commonwealth of Australia [1998] HCA 22; (1998) 195 CLR 337, at 399-401 (Kirby J). See also BM Selway, above n 3, 14 Public Law Review at 240-247.

[10] Contrast the approaches of Kirby and Gummow JJ in SGH Ltd v Commissioner of Taxation (2002) 219 CLR 51.

[11] I previously considered these questions in connection with four constitutional cases decided in the 2002 term of the High Court (Luton v Lessels [2002] HCA 13; (2002) 210 CLR 333; SGH Ltd v Commissioner of Taxation [2002] HCA 18; (2002) 210 CLR 51; Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1; and Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1): see Susan Kenny, above n 4, 26(1) UNSW Law Journal 210.

[12] Cheryl Saunders, above n 3, 15 Public Law Review at 291.

[13] Ibid (Citations omitted).

[14] [2002] HCA 18; 210 CLR 51, 75

[15] Cass R Sunstein, Designing Democracy: What Constitutions Do (2001) at 50-51.

[16] Ibid 50 (emphasis original).

[17] Ibid (emphasis original).

[18] Bobbitt, above n 2. See also Bobbit, above n 2, Constitutional Interpretation (1991).

[19] Bobbitt, above n 2, Constitutional Fate 7 ff, 93 ff; Bobbitt, above n 2, Constitutional Interpretation 12-13, 31 ff. Bobbitt also describes the several “constitutional functions” that, in his view, the different modes serve in arguments used by Justices of the U S Supreme Court: see Constitutional Fate 190-195.

[20] Bobbitt, above n 2, Constitutional Fate 7 ff, 93 ff; Bobbitt, above n 2, Constitutional Interpretation 12-13, 31 ff.

[21] Bobbitt, above n 2, Constitutional Fate 123-124.

[22] Bobbitt, above n 2, Constitutional Fate 3-7, 181.

[23] Daniel Farber, above note 2, 72 Minnesota Law Review at 1332.

[24] Adrienne Stone, above n 3, 27 Sydney Law Review at 41.

[25] Ibid 34-35.

[26] Leslie Zines, above n 3, 5(2) Constitutional Law and Policy Review at 28.

[27] BM Selway, above n 3, 14 Public Law Review at 248. See also Michael McHugh, above n 3, and Devika Hovell and George Williams, above n 3, 29 Melbourne University Law Review at 103.

[28] BM Selway, above n 3, 14 Public Law Review at 248.

[29] Michael McHugh, above n 3; Dan Meagher, above n 3; and John Waugh, ‘Lawyers, Historians and Federation History’ in Robert French, Geoffrey Lindell and Cheryl Saunders (eds), Reflections on the Australian Constitution (2003), 25 ff.

[30] [2002] HCA 18; 210 CLR 51, 75

[31] See, e.g., Newcrest Mining (WA) Limited v Commonwealth of Australia [1997] HCA 38; (1997) 190 CLR 513, at 657-661 (Kirby J); Kartinyeri v Commonwealth of Australia [1998] HCA 22; (1998) 195 CLR 337, at 399-401 ( Kirby J); MD Kirby, ‘Constitutional Interpretation and Original Intent: A Form of Ancestor Worship’ [2000] MelbULawRw 1; (2000) 24 Melbourne University Law Review 1; MD Kirby, ‘Living With Legal History In The Courts’ [2003] Australian Journal of Legal History 3; and BM Selway, above n 2, 14 Public Law Review at 240 ff

[32] [2002] HCA 18; 210 CLR 51

[33] Ibid 87.

[34] Section 114 of the Commonwealth Constitution relevantly provides that “The Commonwealth [shall not] impose any tax on property of any kind belonging to a State”.

[35] [2002] HCA 18; 210 CLR 51, 74-75.

[36] Ibid 87.

[37] See, e.g., McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 230; Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302 at 342-343; Eastman v The Queen (2000) 203 CLR 1 at 41 ff; Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 549-551; Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248 at 292.

[38] (1999) 198 CLR 511 at 551.

[39] See further B M Selway, above n 3, 14 Public Law Review at 244 ff.

[40] 198 CLR 511, 552

[41] Michael McHugh, above n 3.

[42] Susan Kenny, above n 4.

[43] [2002] HCA 13; (2002) 210 CLR 333.

[44] [2002] HCA 18; (2002) 210 CLR 51.

[45] (2002) 211 CLR 1.

[46] [2002] HCA 57; (2002) 212 CLR 1.

[47] E.g., Adrienne Stone, above n 3, 23 MULR at 675. See also Adrienne Stone, above n 3, 27 Sydney Law Review at 27 43-44 and William G Buss, ‘Alexander Meikeljohn, American Constitutional Law, and Australia’s Implied Freedom of Political Communication’ (2006) 34 Federal Law Review 421,427, 452 ff.

[48] Michael McHugh, above n 3.

[49] Ibid.

[50] Adrienne Stone, above n 3, 27 Sydney Law Review at 41.

[51] Ibid.

[52] Bobbitt, above n 2, Constitutional Fate, 7 ff, 93 ff; Bobbitt, Constitutional Interpretation, 12-13, 31 ff.

[53] Cheryl Saunders, above n 3, 15 Public Law Review at 291.

[54] Compare Robert C. Post, ‘Theories of Constitutional Interpretation’ in Robert C. Post (ed.), Law and the Order of Culture (1991) 14.

[55] Section 114 relevantly states that “A State shall not, without the consent of the Parliament of the Commonwealth ... impose any tax on property of any kind belonging to the Commonwealth, nor shall the Commonwealth impose any tax on property of any kind belonging to a State.”

[56] [2002] HCA 18; (2002) 210 CLR 51.

[57] Section 55 relevantly states that “[l]aws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect”.

[58] [2002] HCA 13; (2002) 210 CLR 333.

[59] Section 51(xx) provides that the Parliament shall have power to make laws ... with respect to ... [f]oreign corporations, and trading or financial corporations formed within the limits of the Commonwealth”.

[60] Amalgamated Society of Engineers v Adelaide Steamship Company Limited [1920] HCA 54; (1920) 28 CLR 129.

[61] Ibid 148-150.

[62] See also Cheryl Saunders, ‘Future Prospects for the Australian Constitution’ in Cheryl Saunders, Robert French, Geoffrey Lindell and Cheryl Saunders (eds), Reflections on the Australian Constitution (2003), 221.

[63] [1920] HCA 54; 28 CLR 129, 152.

[64] See, e.g., Victoria v Commonwealth [1971] HCA 16; (1971) 122 CLR 353, 394-395 (Windeyer J); Australian National Airways Pty Ltd v Commonwealth [1945] HCA 41; (1945) 71 CLR 29 at 81 (Dixon J); and earlier, Jumbunna Coal Mine, No Liability v Victorian Coal Miners’ Association [1908] HCA 95; (1908) 6 CLR 309 at 367-368 (O’Connor J).

[65] Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355 at 372 (citations omitted).

[66] [1994] HCA 46; (1994) 182 CLR 104, 197-198.

[67] Compare Victoria v Commonwealth [1971] HCA 16; (1971) 122 CLR 353, 396 (Windeyer J);

[68] D’Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91 at 111; Attorney-General for Queensland v Attorney-General for the Commonwealth (8888) [1915] HCA 39; 20 CLR 148 at 163.

[69] Leslie Zines, above n 3, 22 Monash University Law Review at 196.

[70] Cheryl Saunders, above n 62, at 225.

[71] Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360, at 385.

[72] Susan Kenny, above n 4, 26(1) UNSW Law Journal at 214-215.

[73] See, for example, Geoffrey De Q Walker ‘The Seven Pillars of Centralism: Engineers’ Case and Federalism’.” (2002) 76 The Australian Law Journal 678, at 704; Cheryl Saunders, above n 62, 221; George Williams, ‘Engineers is Dead, Long Live the Engineers!’ [1995] SydLawRw 4; (1995) 17 Sydney Law Review 62; and Anthony Mason, ‘The Australian Constitution in Retrospect and Prospect’ in Robert French, Geoffrey Lindell and Cheryl Saunders (eds), Reflections on the Australian Constitution (2003), 12, 20.

[74] 231 ALR at 10 [17]

[75] (1971) 124 CLR 468.

[76] 231 ALR at 18 [49].

[77] [1909] HCA 36; (1909) 8 CLR 330.

[78] 231 ALR at 18 [49]-[50].

[79] 231 ALR at 25 [68].

[80] 231 ALR at 29 [82].

[81] 231 ALR at 27 [74] and 29-30 [82]-[83], [[85].

[82] 231 ALR at 34 [95].

[83] 231 ALR at 58 [191]-[192].

[84] 231 ALR at 58 [193].

[85] 231 ALR at 60 [197]-[198]. See also Fairfax v FCT [1965] HCA 64; (1965) 114 CLR 1 at 7 (Kitto J).

[86] 231 ALR at 125-6 [462]-[465].

[87] 231 ALR at 145-6 [536], 147 [541].

[88] 231 ALR at 148 [548]-[549], citing Melbourne Corporation v The Commonwealth [1947] HCA 26; (1947) 74 CLR 31, 82-3 (Dixon J).

[89] Attorney-General (Cth) v Schmidt [1961] HCA 21; (1961) 105 CLR 361, 371-2 (Dixon CJ).

[90] 231 ALR at 163 [606].

[91] Ibid 127 [471].

[92] Ibid 127 [470].

[93] Ibid 145 [532].

[94] Ibid 248 [834].

[95] Ibid 167 [621].

[96] Ibid 187 [682]. The authorities to which he referred were Melbourne Corporation v The Commonwealth [1947] HCA 26; (1947) 74 CLR 31 and Austin v The Commonwealth (2003) 215 CLR 185.

[97] See, e.g., 231 ALR at 212-4 [740]-[747].

[98] 231 ALR at 213 [743]. (citations omitted)

[99] Ibid 208 [736].

[100] Ibid 223-4 [772]; 224 [775].

[101] Ibid 223 [770].

[102] Ibid 218 [759].

[103] Ibid 225 [778].

[104] Ibid 226 [781].

[105] Ibid 233 [794].

[106] Ibid 243 [822], [248 [834].

[107] Ibid. [248 [834].

[108] Cheryl Saunders, above n 3, 15 Public Law Review at 293. In this context, Saunders described Gaudron J as “a deep structuralist”. Philip Bobbitt described structural arguments as “inferences from the existence of constitutional structures and the relationships which the Constitution ordains among these structures”: above n 2, Constitutional Fate at 74.

[109] Michael McHugh, above n 3. Citations omitted. See also Cheryl Saunders, above n 62, in Cheryl Saunders, Robert French, Geoffrey Lindell and Cheryl Saunders (eds), Reflections on the Australian Constitution (2003) at 222.

[110] Susan Kenny, above n 4, 26(1) UNSW Law Journal at 216.

[111] [2002] HCA 13; (2002) 187 ALR 529.

[112] This was significant because of the observation in Australian Tape Manufacturers Association Ltd v Commonwealth that “the fact that a levy is directed to be paid into the Consolidated Revenue Fund has been regarded as a conclusive indication that the levy is exacted for public purposes”: (1993) 176 CLR 480, 503.

[113] Luton v Lessels [2002] HCA 13; (2002) 187 ALR 529, 542.

[114] Ibid 543.

[115] D’Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91 at 111; Attorney-General for Queensland v Attorney-General for the Commonwealth (8888) [1915] HCA 39; 20 CLR 148 at 163.

[116] cf De Q Walker, above n 73, 678-682.

[117] Sunstein, above n 2, The Partial Constitution, 106.

[118] [2002] HCA 18; 210 CLR 51, 79.

[119] Ibid 263-6.

[120] Susan Kenny, above n 4, 26(1) UNSW Law Journal at 215.

[121] For example, see, Baxter v Commissioner of Taxation (NSW) [1907] HCA 76; (1907) 4 CLR 1087, at 1109 per Griffith CJ and Barton and O’Connor JJ.

[122] [1988] HCA 18; (1988) 165 CLR 360.

[123] John Waugh, ‘Lawyers, Historians and Federation History’ in Robert French, Geoffrey Lindell and Cheryl Saunders (eds), Reflections on the Australian Constitution (2003), 26.

[124] Kirby J has rejected “originalism” as a form of “ancestor worship”: MD Kirby, above n 32[2000] MelbULawRw 1; , 24 Melbourne University Law Review 1.

[125] 231 ALR at 223-3 [772].

[126] Ibid 40 [120].

[127] See, e.g., Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465; Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541; The Grain Pool of Western Australia v The Commonwealth (2000) 202 CLR 479.

[128] Sue v Hill [1999] HCA 30; (1999) 199 CLR 462, 490.

[129] [2002] HCA 13; 210 CLR 333, 366-367

[130] Susan Kenny, above n 4, 26(1) UNSW Law Journal at 215.

[131] 231 ALR at 25 [67] and 40 [121]. See also the nineteenth century history of corporations law and corporations discussed in 231 ALR at 34 [96]-37[109].

[132] [1897] AC 22.

[133] 231 ALR at 37 [108].

[134] 231 ALR at 40 [121].

[135] Ibid 41 [123]

[136] Ibid

[137] 231 ALR 39 [118].

[138] Ibid 68 [230].

[139] Ibid 61 [203].

[140] Ibid 65 [220].

[141] Ibid 63 [209].

[142] Ibid 63 [212].

[143] Ibid 64 [215], 65 [222].

[144] Ibid 43 [131].

[145] Ibid 43 [134].

[146] Ibid 126 [466]-[467].

[147] Ibid 117 [442].

[148] Ibid 113-4 [431]

[149] Ibid 112 [427].

[150] Ibid 138 [510]-[525].

[151] Ibid 127 [468].

[152] Ibid 144 [530].

[153] Ibid 121 [458].

[154] Ibid [531].

[155] Ibid 121 [459].

[156] Ibid 189 [690]

[157] Ibid 189 [691]-208 [735].

[158] Ibid 248[834].

[159] Ibid 207 [732].

[160] Ibid 207 [732] (emphasis original).

[161] Ibid 249 [840].

[162] Ibid 249 [840].

[163] Compare Philip Bobbitt, above n 2, Constitutional Fate 13.

[164] John Waugh, above n 123, in Robert French, Geoffrey Lindell and Cheryl Saunders (eds), Reflections on the Australian Constitution (2003), 28.

[165] See generally Jack L Landau, ‘A Judge’s Perspective On The Use And Misuse of History In State Constitutional Interpretation’, (2004) 38 Valparaiso University Law Review 451; John Wofford, ‘The Blinding Light: The Uses Of History In Constitutional Interpretation’ (1964) 31 University of Chicago Law Review 502

[166] Ibid.

[167] Jack L Landau, above n 164, 38 Valparaiso University Law Review at 473.

[168] Susan Kenny, above n 4, 26(1) UNSW Law Journal at 217.

[169] Michael McHugh, above n 3, referring to the heavy reliance on authority in Re Wakim; Ex Parte McNally (1999)198 CLR 511; Anthony Mason, above n 73, in Robert French, Geoffrey Lindell and Cheryl Saunders (eds), Reflections on the Australian Constitution (2003), 20; and William G Buss, above n 47, 34 Federal Law Review 421, 452 ff.

[170] Philip Bobbitt, above n 2, Constitutional Fate, at 43, 57; cf Stephen M Griffin, American Constitutionalism: From Theory to Politics (1996), 150; Post, above n 54, 20; and David A Strauss, above n 2, (1996) 63(3) The University of Chicago Law Review at 879.

[171] Compare Cheryl Saunders, above n 62, 227, 229, although she was writing about related matters. See also WMC Gummow, above n 3.

[172] Cheryl Saunders, above n 62, 229 ff.

[173] See also the discussion of Roberts v Bass [2002] HCA 57; (2002, 212 CLR 1 by William G Buss, above n 47, 34 Federal Law Review at 452 ff.

[174] [2002] HCA 13; (2002) 210 CLR 333.

[175] (1993) 176 CLR 480.

[176] [2002] HCA 13; (2002) 210 CLR 333, 344.

[177] [1992] HCA 6; (1992) 174 CLR 219.

[178] [2002] HCA 18; (2002) 210 CLR 51, 67.

[179] Bank of New South Wales v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1.

[180] 231 ALR at 49 [155]-[156].

[181] Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169.

[182] The Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1.

[183] 231 ALR at 52 [167].

[184] 231 ALR at 52 [170], 55-6 [179]-[182].

[185] 231 ALR at 53 [174].

[186] (2000) 203 CLR 346 at 365.

[187] 231 ALR at 66 [223], referring to Re Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc (2003) 214 CLR 397; Pidoto v Victoria [1943] HCA 37; (1943) 68 CLR 87; and Re Pacific Coal 203 CLR 346, 359-60 per Gleeson CJ.

[188] [1943] HCA 37; (1943) 68 CLR 87.

[189] 231 CLR at 111-112 [425]-[427] (Kirby J); 167 [620] (Callinan J).

[190] 231 ALR at 254 [855]-257[865]. 260 [873] ff.

[191] For example, Bourke v State Bank of New South Wales [1990] HCA 29; (1990) 170 CLR 276.

[192] For example, Attorney-General (Cth) v Schmidt [1961] HCA 21; (1961) 105 CLR 361.

[193] 231 ALR 154 [569]-157[583].

[194] See Murphyores Inc Pty Ltd v The Commonwealth [1976] HCA 20; (1976) 136 CLR 1 and the Tasmanian Dam Case [1976] HCA 20; (1976) 136 CLR 1.

[195] 231 ALR at 185-6 [677]-[679].

[196] 231 ALR at 267 [894].

[197] 231 ALR at 218 [759].

[198] 231 ALR at 226-233 [781]-[793].

[199] 231 ALR 238 [810].

[200] Michael McHugh, above n 3. See also Gian Boeddu and Richard Haigh, ‘Terms of Convenience: Examining Constitutional Overrulings by the High Court’ [2003] FedLawRw 5; (2003) 31 Federal Law Review 167 and Andrew Lynch, above n 3, 33 Federal Law Review at 486 ff.

[201] Compare Philip Bobbitt, above n 2, Constitutional Fate, 43.

[202] Compare, in the US context, Henry Monaghan, above n 2, (1988) 88 Columbia Law Review at 749.

[203] Michael Gerhardt, above n 2, (1991) 60 George Washington Law Review at 87. See also Henry Monaghan, above n 2, (1988) 88 Columbia Law Review at 744 and David A Strauss, above n 2, (1996) 63(3) The University of Chicago Law Review at 879, 926.

[204] Susan Kenny, above n 4, 26(1) UNSW Law Journal at 217 ff.

[205] Compare Philip Bobbitt, above n 2, Constitutional Fate, 61, 94

[206] Alexander M Bickel, above n 2, The Least Dangerous Branch, 236

[207] Susan Kenny, above n 4, 26(1) UNSW Law Journal at 217.

[208] 231 ALR at 141 [523].

[209] 231 ALR at 115 [435].

[210] 231 ALR at 143 [525].

[211] 231 ALR at 144 [529].

[212] 231 ALR at 144 [530].

[213] 231 ALR at 225 {777].

[214] 231 ALR at 226 [779].

[215] 231 ALR at 151 [558].

[216] 231 ALR at 151 [558].

[217] 231ALR at 57 [188]-[189].

[218] 231 ALR at 20 [54].

[219] Compare Adrienne Stone, above n 3, 27 Sydney Law Review at 41 (quoted above).