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Melbourne University Law Review |
[The Australian Constitution was drafted in the 1890s in an era where the framers were unable to foresee the advent of radio broadcasting, let alone other technological advances that would affect constitutional provisions such as ss 51(v) and 51(xviii). This article examines the methodology used by the High Court to adapt the Constitution to technological change, and argues that the decisions on the technology provisions lack a clear conceptual framework. An alternative purpose-based methodology is proposed. Within this framework the Court is guided by the purpose of a constitutional provision to determine the essential meaning of a constitutional term. This replaces an approach which searches for the essential characteristics of a term as at 1900.]
[I]f there is one phrase in the whole of the Constitution about which this Court should perhaps be inventive it is the phrase ‘patents of invention’. Once the Court starts taking a narrow view of [patents], it is really taking a narrow view of inventiveness generally and of what might be regarded as inventiveness as technology changes.[1]
This article examines the interaction between technological change and the Australian Constitution (‘Constitution’). The Constitution was drafted in the 1890s, an era in which the framers were unable to foresee the advent of technology, such as television broadcasting, the Internet, biotechnology and computer chips. As a result, the constitutional powers relating to technology, such as s 51(v), for ‘postal, telegraphic, telephonic and other like services’, and s 51(xviii), for ‘copyrights, patents of inventions and designs and trademarks’, were not drafted with these developments in mind. As technological advance challenges the original boundaries of these powers, the inherent tension between the view that the meaning of a constitutional provision is fixed and the view that the Constitution is an enduring document, intended to adapt to new developments, is highlighted.
Traditionally, the High Court has resolved this tension by drawing a distinction between the connotation of a provision as at 1900, that is, its core meaning, and the denotation which retains the essential attributes of the connotation, but allows the provision to accommodate changing circumstances. Some judges use a similar methodology which draws a distinction between the central type of a provision and its circumference, which involves a search for the provision’s essential characteristics. In this article I argue that although this methodology has enabled the Court to be accommodating of technological change, the application of this distinction highlights some of the fundamental theoretical problems with connotation–denotation approaches. Instead, I propose an alternative methodology which focuses the Court’s attention on using the purpose of a constitutional provision to determine the essential meaning of the subject matter and applying that purpose in light of contemporary developments. A purpose-based methodology might lead to similar results in allowing the Constitution to accommodate technological change, but has a clearer conceptual basis in its preference for substance over form.
The structure of this article is as follows: Part II outlines the history of ss 51(v) and 51(xviii) and examines the progress of technology in these areas since Federation. This is necessary for an understanding of the challenge posed by technologies which were unforeseeable when the Constitution was drafted. Part III examines the application of orthodox interpretative techniques to this technological challenge. This Part briefly looks at constitutional interpretation and methods for adapting to change and then outlines the outcomes of High Court decisions relating to ss 51(v) and 51(xviii). In Part III I extract themes from these decisions and argue that the application of the connotation–denotation approach to adapt ss 51(v) and 51(xviii) to technological change lacks a coherent conceptual framework. In Part IV I propose an alternative methodology that balances fidelity to the text with the need for an enduring constitution. This methodology proposes that the Court should be guided by the purpose of a constitutional provision to determine the meaning of terms rather than its essential attributes. This is a moderate approach and is consistent with trends in interpretation towards substance over form, the use of purpose and historical material, and reference to contemporary meaning. Finally, I outline some of the difficulties with ascertaining constitutional purpose, and apply the proposed purposive methodology to ss 51(v) and 51(xviii).
This article focuses on two of the major technology powers in the Constitution, ss 51(v) and 51(xviii). These two powers, which I refer to as the ‘technology provisions’, have been chosen because of their increasing significance to the national economy, the rapid rate of technological change in these areas, and the prominence of cases on these powers. It is also relevant that the most recent decision attempting to adapt the Constitution to technological change was a challenge under s 51(xviii).[2]
Other constitutional provisions which directly relate to technology include s 51(vii), which empowers the Commonwealth to legislate with respect to ‘lighthouses, lightships, beacons and buoys’, and s 51(viii), which allows the Commonwealth to regulate ‘astronomical and meteorological observations’. The provisions relating to railways and transport in ss 51(xxxii) and 51(xxxiv) may also be characterised as provisions which relate to technology. Technological advances such as computers and the Internet also have the potential to affect other powers in the Constitution, such as ss 51(i) and 51(xiii), through developments in electronic banking, digital cash and electronic commerce (‘e-commerce’). E-commerce is here defined as any trade or commercial transaction that is effected via electronic means including facsimile, Internet, electronic data interchange, telephone, and computer to computer communications.[3] The trade and commerce power in s 51(i) has also been used to regulate interstate air navigation, a subject which could not have been expressly provided for in the Constitution because it was not contemplated in 1900.[4]
The history of the technology provisions illustrates the limited capacity of the framers to foresee the relationship between the provisions they were drafting and future technological developments. This history is also relevant to determining the purpose to which the provisions were directed, which will be useful in examining the proposed purposive framework in Part IV.
La Nauze completed an extensive survey of the drafting of s 51(v) and argues that the words ‘other like services’ may have been included alongside postal, telegraphic and telephonic services in s 51(v) because of speculation concerning the future development of wireless telegraphy as a communications technology.[5] The scientific experiments in Germany from which wireless telegraphy was to develop were reported in 1888, and it is argued that Professor Threlfall, a Professor of Physics in Sydney, was the link between these developments and the framers of the Australian Constitution.[6] Professor Threlfall gave an oral and written report on these developments to the Australasian Association for the Advancement of Science, of which constitutional framers such as Sir Samuel Griffith, Andrew Inglis Clark, John Forrest and Bernhard Wise were members.[7] Griffith also dined with Threlfall twice during the 1891 Constitutional Convention, when the first draft of the Constitution was prepared.[8] Bernhard Wise, Threlfall’s brother-in-law, was also present at the main drafting weekend of the Drafting Committee in March of 1891 and a member of the 1897 Convention.[9]
Griffith’s successive drafts of the Constitution from the 1891 Convention show that when the Constitutional Committee was discussing the formulation of s 51(v) as a power for ‘Posts, Telephones and Telegraphs’, a handwritten substitution was made which altered the proposed power to read ‘Postal and Telegraphic Services, including the transmission of Messag[es] by the Department of Posts & Telegraphs & the transmission of information by any natural power’.[10] This ‘most curious substitution’[11] suggests that at least some of the drafters were aware of Threlfall’s speculations, and were attempting to allow for the future development of wireless telegraphy.[12] However, this tentative wording was cancelled by Griffith, possibly because it was felt that the development was too theoretical or speculative, or that an appropriate form of words could not be agreed on, or that the judiciary could more appropriately make allowances for future technological advances.[13] At the 1897 Convention Bernhard Wise proposed an amendment to include ‘and other like services’ at the end of s 51(v). This was accepted by the Convention without any substantial debate.[14]
Although the historical record of s 51(v) shows that the framers may have been aware of future technological developments, it also demonstrates that the Constitution was drafted at a time where even wireless telegraphy was the subject of scientific speculation. In the late 20th century wireless telegraphy is taken for granted with radio and television broadcasting being part of everyday life, and the focus of communications technology shifting to areas such as Internet and satellite broadcasting. This inability to foresee future technological developments may explain why the power in s 51(xviii) to legislate with respect to ‘copyrights, patents of inventions and designs, and trademarks’ was drafted without any provision for ‘other like protection’. Unlike s 51(v), there does not seem to be any record of the scope or drafting of s 51(xviii). This lack of discussion may indicate the framers’ belief that the categories enumerated in s 51(xviii) were the only categories required, since the technological developments which have led to the need for sui generis intellectual property (‘IP’) categories were unforeseeable at the time.
This is confirmed by an examination of the possible origins of s 51(xviii), which can be traced to the draft Constitution Bill Inglis Clark prepared before the 1891 Convention. Clark’s draft included a provision allowing the Commonwealth ‘to make an uniform law regulating Patents of Inventions and Discovery and Copyrights throughout the Federal Dominion of Australasia’.[15] Clark was a member of the drafting Committee at the 1891 Convention, and his draft, which was circulated to delegates before the opening of the 1891 Convention,[16] is believed to have been the first draft of the 1891 Bill.[17] The legislative powers set out in Clark’s draft appear to have been based on the British North America Act 1867 (Imp) 30 & 31 Vict 13, c 3, which enumerated ‘Patents of Invention and Discovery’[18] and ‘Copyrights’,[19] and the Federal Council of Australasia Act 1885 (Imp) 48 & 49 Vict 13, c 60, which included ‘patents of invention and discovery’ and ‘copyright’ among the legislative powers which might be referred to the Federal Council.[20]
The Constitutional Committee of the 1891 Convention split the power in Clark’s draft into two, one to read ‘Patents of Inventions, Designs, and Trade Marks’ and a separate power for ‘Copyrights’.[21] This separation is similar to that found in the British North America Act 1867 (Imp) 30 & 31 Vict 13, c 3 and the Federal Council of Australasia Act 1885 (Imp) 48 & 49 Vict 13, c 60, although the inclusion of design protection indicates that the draft provisions may have been influenced by the existing forms of IP protection in the United Kingdom under the Patents, Designs, and Trade Marks Act 1883 (UK) 46 & 47 Vict 13, c 57 and the colonial statutes which drew heavily upon the English legislation as models.[22] However, during meetings of the Constitutional Committee, the two powers were combined within one power: ‘Copyrights and Patents of Inventions, Designs and Trade Marks’.[23] There is no record of any debate of the proposed IP provision during the Convention Debates.[24] It passed without discussion at the 1891 and 1897 Conventions,[25] and with a minor verbal amendment to the punctuation at the 1898 Convention, so that it appeared as it does in the version of s 51(xviii) that was adopted.[26]
Therefore, it would seem that in contrast to s 51(v) it is likely that the founders gave very little thought to the precise wording of s 51(xviii) and whether it would accommodate new IP categories. Unlike s 51(v) and the prospect of wireless telegraphy, the framers were not able to foresee any significant future developments which would challenge traditional IP categories.
The significant developments in technology since Federation illustrate the challenges posed by a constitution drafted in a less technologically advanced era. A major force in the technology revolution is information technology, ‘a “core” technology as significant to the 21st century as steam power to the 19th century or electrical power and the internal combustion engine to the 20th.’[27] Information technology has had pervasive effects on economic growth, employment and the overall information market; it has transformed organisational structures and the experience of everyday life.[28] Another major force has been the emergence of the biotechnology industry which has created new substances, varieties of plants, micro-organisms and animals through the introduction of artificially modified genetic material.[29] The application of these techniques has great potential for the pharmaceutical, medical, agricultural, food processing, chemical and mining industries.[30]
Technological developments have extended communication far beyond the traditional means of postal, telegraphic and telephonic services, as enumerated in s 51(v). As well as extensions to radio and television broadcasting, more recent developments have resulted in new fields of communication, such as cable, satellite[31] and digital broadcasting. Information technology has also led to the rise of the Internet and subsequently, webcasting of radio and television programming, e-mail and Internet access via digital television decoders and mobile telephones, and the use of the Internet for voice telephony.[32] A new era of global communication and trade is also being ushered in through e-commerce. [33]
Developments in areas such as broadcasting, computer technology and biotechnology have also challenged the traditional IP categories specified in s 51(xviii). One response has been to extend existing IP categories to cover new subject matter. Although IP rights are integrally linked to technological developments, the older and more established IP regimes are becoming increasingly strained and are being stretched far beyond their original boundaries.[34] Biotechnological developments have taken patent law, which previously dealt with inventions in more established technical fields, such as chemistry and mechanical engineering, into previously uncharted waters.[35] Copyright protection, which was originally developed in response to the invention of the printing press in the 15th century, has gradually been extended to cover live performances,[36] sound recordings, cinematographic films, television and sound broadcasts.[37] The extension of copyright to computer programs[38] has been criticised as being quite out of character with the traditional copyright categories of literary and artistic works.[39]
An alternative response has been to create sui generis protection where existing categories prove inadequate or inappropriate for modern technological innovations.[40] For example, the Circuit Layouts Act 1989 (Cth) (‘Circuit Layouts Act’) was enacted to provide copyright-style protection adapted to the specific needs of integrated circuit layouts.[41] The Plant Breeder’s Rights Act 1994 (Cth) (‘Plant Breeder’s Act’)[42] was introduced to protect rights arising from selective and biotechnological plant breeding, including the creation of disease, pest and drought resistant crops.[43] This was required for a number of reasons:[44] for example, plant breeding, affecting the food source as it does, requires public interest qualifications for farmers to produce and sell food.[45] The validity of this Act was recently challenged in Grain Pool.[46] There has also been a debate relating to the need for sui generis legislation to protect computer software, instead of expanding the Copyright Act 1968 (Cth),[47] and to protect gene sequences isolated as part of the Human Genome Project.[48]
These significant technological developments raise the question of whether there are constitutional constraints on the capacity of the Commonwealth Parliament to legislate in these new areas under ss 51(v) and 51(xviii).[49] Some doubts have been expressed as to whether the Constitution has the capacity to accommodate these technological changes, leading to recommendations by the 1976 Australian Constitutional Convention and the 1988 Constitutional Commission that ss 51(v) and 51(xviii) be amended to ensure they accurately reflect modern communications technology and IP.[50] This is based on the assumption, supported by this author, that it is desirable to have uniform national legislation over fundamental areas, such as IP and communications, which are increasingly affected by technological advances. Developments in communications technology are advancing rapidly at a domestic and international level, and it is important to have national frameworks in place to allow Australian companies to remain abreast of technological advances and to ensure competitiveness with overseas markets. It is also necessary to provide national and uniform IP protection for inventions to encourage inventors in Australia to develop inventions and make them available in the Australian market by ensuring that the inventor is properly rewarded for his or her intellectual effort.
However, these proposals for constitutional change have not been submitted to a referendum by any government. Given the dismal record of constitutional reform in Australia,[51] this may not be an achievable goal in the near future. The problems of constitutional reform are exacerbated by continuing advances in technology and the difficulties of drafting technology-neutral provisions, which can accommodate unforeseen changes. In this context, and given that the Constitution is intended to be an enduring document, Parts III and IV will outline how ss 51(v) and 51(xviii) have been interpreted and will consider an interpretative solution to the problems raised by technological advances.
Before considering the interpretative challenge posed by technological advance, alternative solutions to constitutional reform will be briefly mentioned. Should the Commonwealth lack power to legislate in these new areas under ss 51(v) and 51(xviii), there are other constitutional powers which may support legislation, such as the external affairs,[52] trade and commerce,[53] corporations,[54] and the incidental powers.[55] Use of the referral power under s 51(xxxvii) or the enactment of a co-operative scheme are also worth considering. However, recent experiences with the Corporations Law demonstrate that co-operative schemes and referrals of power have their own difficulties.[56] These approaches are weaker solutions, involving a patchwork approach to legislation, and fail to resolve the wider problem that unforeseen technological advances pose to many aspects of the Constitution. This raises a broader question concerning the capacity of the Constitution to accommodate not only technological change, but also social, economic and international changes, and the interpretative methods that are employed to ensure that the Constitution is not restricted to life in the late 19th century.
Given the limited extent to which the express provisions in the Constitution can accommodate future technological developments that were unforeseen at the time of Federation, what is the role of constitutional interpretation in adapting to technological change? In this section I argue that although orthodox interpretative principles create difficulties in adapting technology provisions to some unforeseen changes, the results of cases on the technology provisions indicate an adaptability to change. After analysing themes from these technology decisions, it is argued that the approach of the High Court in these cases stretches the interpretative principles beyond their scope in an attempt to ensure their applicability to a text that inadequately accommodates technological advances.
Since Amalgamated Society of Engineers v Adelaide Steamship Co Ltd[57] the orthodox approach to constitutional interpretation in Australia has been literalism,[58] based on the view that the Constitution should be interpreted according to ordinary rules of statutory interpretation.[59] This approach involves interpreting the Constitution by ascertaining the natural and ordinary meaning of the text,[60] and applying the express words of the Constitution rather than policy considerations.[61] However, this literal approach to s 51 ‘is not as narrow as might first be thought’,[62] given the consistent application[63] of the dictum in Jumbunna Coal Mine NL v Victorian Coal Miners’ Association:
[In] interpreting a Constitution broad and general in its terms which is intended to apply to the varying conditions which the development of our community must involve ... where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should ... lean to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object or purpose.[64]
Therefore, a literal interpretation involves construing s 51 ‘with all the generality that the words used admit’.[65] However, it may be difficult to construe subject matter expansively — for instance, ‘patents’ in s 51(xviii) or ‘lighthouses’ in s 51(vii) do not possess the same degree of generality or ambiguity as, for example, ‘external affairs’ in s 51(xxix).[66] Since the drafters were unable to foresee the rapid pace of technological change, the relevant provisions appear to be ‘phrase[s] of some particularity that [are] inherently less flexible in [their] application’,[67] rather than powers ‘expressed in general propositions wide enough to be capable of flexible application to changing circumstances’.[68] Therefore, if technology has outgrown the textual provisions, a literal approach may restrict the capacity of the Constitution to accommodate some of the technological changes that were unforeseen at the time of Federation.
However, some argue that unforeseeable technological changes can be accommodated by the connotation–denotation device that has been applied in constitutional interpretation.[69] The ‘connotation’ refers to the essential meaning of the constitutional language as at 1900, and comprises all the essential attributes that a thing must have in order to come within the term. The ‘denotation’ includes new and different items with that essential meaning; this the Court determines by assessing whether the new item possesses all the essential attributes.[70] The Court is bound to the connotation, that is, the essential meaning of a term, but is not confined to the denotation that a term had in 1900.[71] Although this device has been cited as allowing the Constitution to adapt to new situations, it may also frustrate the broad interpretative approach outlined above by requiring the essential meaning of the provision to be determined as at 1900.[72] Difficulties may arise where technological advance has outgrown the text, such that the denotation cannot be seen to possess all the essential attributes of the connotation without departing in a ‘radical way’[73] from the essential meaning in 1900.[74] This methodology has been criticised as ‘unsound epistemologically’,[75] ‘an outdated philosophical distinction’[76] and ‘not without its difficulties’.[77] These criticisms will be discussed below in the context of themes arising from the technology decisions. It should be noted that some judges have applied a similar concept to connotation–denotation using different terminology, such as a reference to the central type and circumference of the power, where the central type is similar to the connotation and the circumference to the denotation.[78]
These issues raise general concerns resulting from the fact that the Constitution is a product of the horse and buggy age.[79] At the time the Constitution was drafted, the framers did not foresee many of the questions that arise for adjudication today, let alone provide answers to them in the text.[80] Broad constitutional language gives rise to textual ambiguity and competing meanings which cannot be convincingly resolved by resort to the text alone.[81] Moreover, a literal approach may cloak the policy preferences and judicial values that must necessarily be applied to resolve textual ambiguity.[82] Therefore, the status of literalism as the cornerstone of constitutional interpretation has come into question,[83] and we have begun to see a fall from strict literalism, particularly in the area of implied freedoms.[84] There has also been a movement away from formalism to a more substance-driven approach[85] or, in Lane’s words, a ‘New Realism’,[86] in the area of the express rights and guarantees such as ss 90,[87] 92[88] and 117.[89] It can also be observed that there is a greater quest for purpose in construing constitutional provisions,[90] more frequent use of the Convention Debates,[91] and a greater tendency to invoke contemporary values.[92] Although the impact of these changes is slowly being felt,[93] the orthodox position remains that a literal approach should be applied in the construction of Commonwealth powers.[94] In addition, the move towards implied freedoms has now been tied more strictly to the text and structure of the Constitution,[95] and the current Court has recently shown signs of returning to a more literal interpretative approach.[96]
The Court has also increased its interest in constitutional theory which can only lead to an appreciation that literalism makes no real attempt to present a coherent theoretical vision of the Constitution and its interpretation.[97] This raises the question of whether the Constitution should be viewed as a rigid blueprint, that is, a detailed and exhaustive statement of the framers’ intentions, or as a set of general principles designed as a broad framework or outline for national government.[98] Craven suggests that those who view the Constitution as a rigid blueprint tend to see the role of interpretation as giving effect to the intentions of the framers — an intentionalist or originalist approach — and those who see it as a broad framework view the Court’s role as keeping the Constitution attuned with the changing needs of society — a progressive approach.[99] In Australia, although the orthodox view has been a literal approach to ascertaining the framers’ intentions from the words in the Constitution itself, there are emerging tendencies of progressivism[100] and intentionalism.[101] Constitutional interpretation is in a ‘state of flux’, with no dominant or accepted method of interpretation.[102] Instead, there are competing views as to what are suitable interpretative approaches, a focus on the continuing relevance of literalism and discussion of whether contemporary decisions are inconsistent with the Engineers methodology.[103]
This section examines how interpretative principles have been applied to ss 51(v) and 51(xviii). Since the text of the Constitution is limited in its provision for technological advance,[104] a literal approach may restrict the Court’s capacity to give the technology provisions a broad interpretation. As outlined in this section, the results of the limited number of decisions on these powers show that the Court has ensured that the Constitution maintains its capacity to accommodate technological change. The analysis in these decisions is examined in this section, where it is argued that the reasoning lacks a clear conceptual basis for adapting the Constitution to such change.
Significant developments in communications technology since Federation have led to questions as to the constitutional validity of Commonwealth legislation with respect to radio and television broadcasting under s 51(v). In 1935 the High Court in R v Brislan; Ex parte Williams broadly agreed that radio broadcasting could be classified as a ‘telegraphic’ or ‘telephonic’ service, although the reasoning differed somewhat.[105] Thirty years later in Jones v Commonwealth [No 2][106] the Court decided that s 51(v) extended to the preparation and transmission of programs for television broadcasting as necessarily incidental to the broadcasting service. Although the plaintiffs did not specifically question whether s 51(v) extended to television, several justices acknowledged that the inclusion of television was the inevitable result of the decision in Brislan.[107] The Court has also found that s 51(v) extends to laws limiting the ownership or control of commercial television stations and prohibiting certain conduct in relation to television licences.[108] In other decisions, the Federal Court has accepted in obiter dicta that s 51(v) extends to the ‘broadcasting of radio and television programmes’,[109] and the establishment, erection, maintenance and use of television stations to transmit and receive messages by means of wireless telegraphy.[110]
There have only been a few High Court decisions which have directly addressed the validity of IP legislation under s 51(xviii). The first was the 1908 Union Label case,[111] a significant decision in the early history of constitutional interpretation in Australia, which found the extension of the Trade Marks Act 1905 (Cth) to workers’ trademarks to be constitutionally invalid. This outcome can be contrasted with Grain Pool,[112] a decision handed down at the beginning of the 21st century in March 2000, which held that the Plant Breeder’s Act is constitutionally valid.
Until March 2000, the Union Label case was the only decision which had directly addressed the validity of IP legislation under s 51(xviii). The constitutional challenge in Union Label related to the Trade Marks Act 1905 (Cth), arguably the s 51(xviii) area least affected by technological developments. A majority of the Court held that workers’ trademarks were not valid under s 51(xviii) because they did not fall within the meaning of trademarks at 1900,[113] although there was a strong minority dissent.[114] The majority decision was strongly influenced by the reserved powers doctrine, that Commonwealth powers should be construed narrowly because the Constitution reserved to the States their traditional areas of legislative power; a doctrine later rejected in Engineers.[115] Subsequently, several justices accepted that the denotation of trademarks may have increased since Union Label so as to cover service marks.[116]
Despite the legislative expansions to the IP categories set out in s 51(xviii), the scope of s 51(xviii) to accommodate technological change remained largely untested throughout the 20th century. The recent case of Grain Pool[117] was the first time since 1908 that the boundaries of s 51(xviii) were constitutionally challenged. This case was heard in October 1999; the plaintiffs argued that the Plant Breeder’s Act is not a law with respect to ‘patents of inventions and designs’. They contended that the rights conferred by the Act are not in the nature of patent rights because they are not exclusive and there is no requirement of novelty.[118] In response, the Commonwealth argued that ‘patents of inventions and designs’ should not be confined to rights granted under particular patents legislation, and that the rights conferred by the Act fall within the core concept of a patent by conferring monopoly rights in respect of a novel product. They argued that even if ‘patents of inventions and designs’ were to be equated with patents legislation, the Plant Breeder’s Act grants rights analogous to patents.[119] In a decision handed down in March 2000, the High Court rejected the arguments of the plaintiffs and upheld the validity of the Plant Breeder’s Act under s 51(xviii). The decision was unanimous, although Kirby J handed down a separate judgment.
There have also been some cases relating to copyright which have considered s 51(xviii) in obiter. For example, in Australian Tape Manufacturers Pty Ltd v Commonwealth the Court considered amendments to ss 133ZZM(1) and 135ZZP of the Copyright Act 1968 (Cth).[120] Section 133ZZM(1) provided that copyright in a sound recording is not infringed by copying on private premises for domestic use; s 135ZZP provided for a blank tape royalty to compensate copyright owners. These provisions were held to be valid laws with respect to the copyrights power.[121] In Nintendo Co Ltd v Centronics Systems Pty Ltd,[122] which involved an infringement action under the Circuit Layouts Act, the alleged infringer invoked as a ‘defence of last resort’ the argument that the Act purported to effect an acquisition of property other than on just terms under s 51(xxxi).[123] Although the validity of the Act under s 51(xviii) was not questioned in the proceedings, the Court did comment that the Act was supported by s 51(xviii) and therefore manifested a contrary intention to allow the acquisition of property from those adversely affected by the IP rights.[124]
The limited number of technology decisions illustrates that the Court has accommodated technological changes in all cases except for Union Label,[125] which was influenced by the reserved powers doctrine. This capacity to accommodate change is particularly evident in the s 51(v) cases where the Court has extended the power to cover communications technologies that were unforeseen when the Constitution was drafted, and in the Grain Pool decision on s 51(xviii).
In this section I argue that although the results of the decisions illustrate the Constitution’s capacity to accommodate technological change, an examination of the reasoning in these cases indicates that the essential meaning of ss 51(v) and 51(xviii) has been characterised so broadly that it stretches the confines of the text. I argue that this may be a result-driven or policy-oriented approach, because the Court accepts that the Constitution needs to be able to accommodate technological change and because this proposition is relatively uncontroversial. Thus, the Court has taken a flexible approach that is characterised within literalist confines, but perhaps goes so far as to verge on a progressive or dynamic approach to constitutional interpretation.
The technology decisions highlight tension between the view that the constitutional meaning should be derived from 1900 as in Union Label[126] and the broad approach to interpretation outlined in Brislan.[127] If the provisions were consistently interpreted with the 1900 meaning in mind, the Constitution would be significantly limited in its capacity to accommodate technological change. The connotation–denotation and central type–circumference methodologies attempt to resolve this tension, but still require the essential meaning to be determined as at 1900. The Court has overcome this problem by leaning towards a broader meaning and recognising that technology is an area where the Constitution needs to adapt to unforeseen changes.
Although s 51(v) reflects late 19th century communications technology, the Court is significantly assisted by the framers’ attempt to express themselves ‘in terms calculated to cover developments in science and organization enabling the control of analogous and ancillary services’.[128] By including the phrase ‘other like services’, the framers drafted a power which was ‘intended to provide for the future, and bearing upon its face, an attempt to cover unknown and unforeseen developments.’[129] As one of the most influential framers, Griffith CJ recognised in Union Label that although terms must be ascertained by their signification in 1900,
that with advancing civilisation new developments, now unthought of, may arise with respect to many subject matters. So long as those new developments relate to the same subject matter the powers of the parliament will continue to extend to them. For instance, I cannot doubt that the powers of the legislature as to posts and telegraphs extend to wireless telegraphy and to any future discoveries of a like kind, although in detail they may be very different from posts and telegraphs and telephones as known in the nineteenth century.[130]
The history of s 51(xviii) indicates that the section was drafted in a more precise and inflexible way than s 51(v). This is probably because the potential need for sui generis forms of IP protection beyond the categories established in 1900 was beyond the framers’ contemplation. Given the differences in the text of ss 51(v) and 51(xviii), and given that s 51(xviii) does not include provision for ‘other like protection’, it would appear that the approach taken in relation to s 51(v) should not automatically be applied in the s 51(xviii) cases. However, the joint reasons of the High Court in Grain Pool[131] concluded that because s 51(v) was drafted to include ‘other like services’ and therefore contemplated developments in scientific methods for the provision of telegraphic and telephonic services, it would be expected that the description of an invention for the purpose of s 51(xviii) would change to reflect developments in technology.[132] This is an unfounded conclusion by the High Court, because it fails to pay attention to the differences in both the constitutional text and drafting history of ss 51(xviii) and 51(v).
A methodology which searches for the essential meaning or characteristics of a constitutional provision such as the connotation–denotation or central type–circumference approach has been applied in the technology cases since Union Label. Although it was not explicitly applied in Brislan, the approach taken resembled this methodology through its reference to the essence of the power and the search for ‘common characteristics’ and ‘essential features’.[133] The discussion in Brislan focused on the genus constituted by the words ‘postal, telegraphic and telephonic’ and the appropriate test of ‘likeness’, which may have been influenced by the inclusion of ‘other like services’ in s 51(v). However, Brislan is often cited as an example of how a fixed concept in 1900 can expand to include new developments (or denotations) that fall within that fixed concept,[134] and given its resemblance to the connotation–denotation and central type–circumference methodologies, it will be discussed in this section.
An examination of the methodology applied in the ss 51(v) and 51(xviii) cases highlights some of the general criticisms of the connotation–denotation approach. While the device provides a mechanism for maintaining fidelity to the text and allowing some capacity to accommodate changing circumstances, it has arguably been stretched beyond its theoretical limits. Its failure to provide guidelines for determining the essential meaning of a provision is borne out by the differing opinions in the technology decisions which have expanded the connotation over time. This raises the question as to whether the connotation has been stretched so far that it could no longer be seen to represent the essential meaning of the provisions as defined in 1900. Instead, the connotation or essential meaning has expanded in correlation with the new developments that have given rise to new denotations. The following will provide some examples to illustrate this argument, and explore explanations of this expansive reasoning.
In Brislan four members of the majority classified radio broadcasting as a ‘telegraphic or telephonic service’.[135] In doing so, Rich and Evatt JJ stated that ‘telegraphic or telephonic’ refers to ‘electrical means of transmission of signals and speech’.[136] This view was confirmed by Barwick CJ in relation to television broadcasting in Jones,[137] where he argued that the ‘basic concept of telephony is communication at a distance by sound, the means of bridging the distance not being of the essence of the concept.’[138]
This broad definition of the essential attributes and characterisation of radio and television broadcasting as ‘telephonic’ services demonstrates the problems with trying to characterise new technologies as comprising all the essential attributes of the 1900 meaning. This raises the question as to whether all the essential attributes of ‘telephonic’ are present in radio, and more particularly television, or whether the Courts are defining the essential attributes on the basis of the denotation in 1935 or 1965. Neither Quick and Garran,[139] nor Moore[140] define the essential attributes of ‘telephonic’ as at 1900. However, it could be inferred from the pre-Federation draft Bills and the historical circumstances that the efforts to accommodate wireless telegraphy by debating various broader formulations of the power resulting in ‘other like services’ indicate that ‘telephonic’ at the time did not include wireless communications such as radio.
The characterisation of radio broadcasting as ‘telephonic’ rather than as an ‘other like service’ by a majority of the Court indicates a preference to view ‘other like service’ as limited by the essential attributes of ‘postal, telegraphic and telephonic’. This is consistent with the ejusdem generis[141] maxim in statutory interpretation,[142] which provides that ‘where general words follow particular words the general words will often be construed as being limited to the same kind as the particular words.’[143] This view is supported by Latham CJ who held radio broadcasting to be a ‘like’ service, but based his reasoning on a likeness with ‘postal, telegraphic and telephonic’ services.[144] Therefore, the words ‘other like services’ do not seem to extend s 51(v) beyond the essential attributes of the enumerated services, but rather indicate the framers’ intent not to limit s 51(v) to services available in 1900.[145] This reasoning has been used judicially to expand s 51(v) to apply to unforeseen developments by invoking the history of the drafting and the perceived intent of including ‘other like services’,[146] thereby indicating originalist tendencies.[147]
Given the nature of ‘postal, telegraphic and telephonic’ services as a means of individual communication rather than mass dissemination as performed by broadcasting, it is arguable that the broad definition of ‘telephonic’ extends beyond what the essential attributes may have been at 1900. This is not the view that has been taken by the majority of the Court, with five of the six judges rejecting this view in Brislan and extending s 51(v) to ‘electrical means of transmission of speech and sound’[148] and, in the case of television, images by electrical means.[149] Not only does this disregard technological changes, such as whether transmission is wireless or not, it also arguably disregards the nature of the service. This was the view taken by Dixon J, in a strong dissent in Brislan, who argued that s 51(v) extended to at least ‘every system or organized process of furnishing means of individual inter-communication, notwithstanding that, at the time when the Constitution was adopted, it was undiscovered and unthought of.’[150] While still allowing s 51(v) to expand to unforeseen technologies, Dixon J limited the power to individual communication based on the likeness between the enumerated services which each provide a ‘method by which an individual who desires to communicate with another at a distance may dispatch and have delivered to him his message, or establish direct or oral communication with him’.[151] In Jones Windeyer J expressed his approval of Dixon J’s argument but accepted the majority decision in Brislan as binding.[152]
Sawer notes that Brislan provided a ‘surprisingly large’[153] majority for such a broad interpretation of s 51(v), and that the dissenting view of Dixon J that s 51(v) was intended to deal with interpersonal communication is an ‘overwhelmingly more probable construction of what the Founders intended.’[154] This supports the conclusion that the Court expanded the essential meaning as at 1900 to accommodate the expansion of the denotation to broadcasting services which were unforeseen at the time of drafting and were therefore not provided for in the text.
The most powerful example of a broad connotation which arguably stretches the text beyond its essential meaning is the view of s 51(v) as a power to regulate communication or broadcasting generally.[155] Judges have interpreted the essential meaning of s 51(v) as ‘communication at a distance by sound’,[156] ‘communication services’,[157] and ‘an organized method ... by which a person may transmit communications’.[158] This approach looks at the function of the power, which is almost an object or purpose based reading of s 51(v), rather than a strict essential attributes approach, and could be seen to include some elements of progressive interpretation. For example, Latham CJ referred to the ‘object of the power to place under Federal authority the control of distant communication carried on according to a systematic plan’.[159] In Jones Menzies J in dissent referred to the limitations of the text, arguing that Brislan did not justify reading s 51(v) as if it were written ‘postal, telegraphic, telephonic, broadcasting, television and other like services’.[160]
The s 51(xviii) cases highlight the lack of guidelines in determining the essential meaning or connotation. In Union Label the difference between the majority[161] and the minority[162] occurred in relation to the essential attributes of a ‘trademark’ in 1900. The majority’s narrow view of the connotation was influenced by the reserved powers doctrine. However, following the rejection of the reserved powers doctrine, the decision of the Court shows how a broad or narrow view can be used to achieve a particular result. In Davis the Court expanded the connotation to include service marks[163] and, in confirming the validity of the Circuit Layout Act under s 51(xviii) in Nintendo, the Court stated in obiter that:
[I]t is of the essence of that grant of [power under s 51(xviii)] that it authorizes the making of laws which create, confer, and provide for the enforcement of, intellectual property rights in original compositions, inventions, designs, trademarks and other products of intellectual effort.[164]
This is almost a purpose or object based view which reads the power broadly without justifying how the meaning is drawn from the text of s 51(xviii).
In Grain Pool this statement in Nintendo and the upholding of the Circuit Layouts Act was interpreted by the majority judgment as demonstrating that it is within the scope of s 51(xviii) to ‘determine that there be fresh rights in the nature of copyright, patents of inventions and designs and trade marks.’[165] The Court stated that ‘[t]he broad term “intellectual effort” used in Nintendo embraces a variable rather than a fixed constitutional criterion.’[166] In upholding the validity of the Plant Varieties Rights Act 1987 (Cth) and the Plant Breeder’s Act, the Court found that the ‘origination’ or ‘breeding’ required by the respective Acts involves sufficient ‘intellectual effort’ in the sense of that term in Nintendo.[167] In their view, within the terms set out by Higgins J in Union Label, ‘it would be wrong to regard the legislative grant of monopoly rights in new plant varieties as being, in 1900, outside the “central type” of the subject of patents of inventions.’[168]
In a separate judgment in Grain Pool Kirby J supported this view by taking a ‘very broad’ view of the power.[169] He distinguished his judgment on the basis that in the joint reasons, the other members of the Court repeatedly referred to the consideration of the ambit of ‘patents of invention’ in 1900, which is contrary to Kirby J’s statement that the scope of the power should not be characterised by reference to its meaning in 1900.[170] In supporting the view of s 51(xviii) as providing for ‘products of intellectual effort’, Kirby J stated that:
[T]he collection of rights mentioned in the grant [in s 51(xviii)] strengthens the pre-supposition that the Federal Parliament in Australia is to enjoy a most ample lawmaking power in respect of ‘products of intellectual effort’ as that notion may itself expand, in part as a by-product to the very inventiveness which it empowers the Parliament to protect.[171]
A further indication of the willingness of the High Court to take a broad view and accommodate plant breeders’ rights within the essential meaning of patents can be found in the judicial interventions when Grain Pool was being argued in the High Court. For example, Callinan J warned against taking a narrow view of patents, Kirby J suggested a broad connotation of ‘monopolistic entitlement’, and McHugh J suggested that patents are confined to whether or not it is an ‘invention’.[172] These views show an unwillingness to tie the essential meaning of patents to the technical criteria of patentability as at 1900, although it is stressed that these were comments made during the proceedings rather than in a judgment.
The technology cases demonstrate a broader view of the connotation, and arguably have taken a progressive approach to interpretation of the technology provisions, particularly in the expansion of s 51(v) to radio and, more particularly, television[173] and the expansion of s 51(xviii) to plant breeders’ rights. This may be because of the recognition that the Constitution is an enduring document that must keep pace with technological developments which were not foreseeable at the time of drafting.
In my opinion, there are two related reasons which help to explain the adoption of this view. First, the lack of guidelines for determining the essential attributes of the connotation allows the Court to take a broad or a narrow view. As Zines notes, connotation–denotation does not resolve the interpretative question but merely restates the issue.[174] In reality, the connotation will often be developed from familiar examples (or denotations) known at the time that the Court is called to determine them.[175] Thus, there is some correlation between the changing denotations and the generalisation (connotation). The Court seems to have allowed new technological developments to influence their formulation of the connotation in a way that may not have been possible before that technological development. For example, the judges in Brislan gave a connotation to ‘services’ in s 51(v) based on their state of knowledge in 1935 and the judges in Union Label gave a particular connotation to ‘trademarks’ based on their knowledge in 1908.[176] The influence of contemporary meaning on the formulation of the connotation appears to resemble a progressive approach which arguably lacks fidelity with the essential meaning in 1900. At the same time, it allows the Court to overcome the limits of defining the essential attributes of a technology provision in 1900 while purporting to act within the confines of literalism.
Secondly, the technology cases often involve a policy judgment that a constitution is an enduring document and should be able to accommodate technological change. The capacity of the Constitution to accommodate technological change by taking a broad approach to the essential meaning appears to be less controversial than adapting the Constitution to areas such as implied freedoms, human rights or cross-vesting schemes under the Corporations Law. In fact, both conservative and liberal judges and commentators appear to accept the need for the Constitution to accommodate technological changes that could not have been foreseen at Federation.[177] In Grain Pool this policy judgment was explicitly recognised by Kirby J, who argued that the subject matter of science and technology in s 51(xviii) and its objective of protecting intellectual inventiveness suggest that the categories in s 51(xviii) should be given ‘a specially broad interpretation, released from the conceptions of 1900.’[178] During the Grain Pool proceedings Callinan J demonstrated the view that technology is an area in which the Court needs to adapt to change, with his comments that the phrase ‘patents of invention’ is one phrase where the Court should perhaps be inventive, rather than taking a narrow view of ‘what might be regarded as inventiveness as technology changes.’[179]
Similarly, in Jones, although Windeyer J agreed with Dixon J’s reasoning in relation to individual communication in Brislan, he accepted the extension of s 51(v) to television because ‘the very nature of the subject-matter makes it appropriate for Commonwealth control regardless of State boundaries’.[180] Therefore, the discretion created by connotation–denotation and the search for the essential meaning allows the Court to adapt the Constitution to technological change by characterising the essential meaning broadly. Although this could be seen to be a progressive approach to constitutional interpretation, a conservative Court can disguise it behind the literalist guise of a broad essential meaning.
Although the results in the technology cases may be desirable if one accepts that the Constitution needs to be able to accommodate technological change, the method of achieving those results lacks a coherent conceptual framework. Even the recent Grain Pool decision fails to espouse a coherent theoretical foundation which allows the Constitution to accommodate technological change while maintaining fidelity to the text. The search for the essential meaning through the connotation–denotation device is problematic because, while it fails to provide guidelines for determining the essential attributes in a principled fashion, it has led judges in the technology cases to attempt to maintain fidelity to the text by, for example, broadly characterising new technologies as ‘telephonic’, or defining the connotation as broadly as ‘communication’ or ‘intellectual effort’.
It is submitted that this is a misguided pursuit which results from the limits of a text that was not drafted to cater for future technologies and is compounded by attempts to maintain a literal interpretative approach to Commonwealth powers. While trying to accommodate technological change within this framework, the essential meaning of a provision has been stretched so far as to verge on a progressive and possibly subjective result-driven approach. This methodology is inconsistent with areas where the Court may be more hesitant in adapting the Constitution to radical social changes or accommodating human rights, and leads to uncertainty in the future by its lack of a framework and unconvincing reasoning. Instead, the Court should explicitly lay the foundations for an enduring constitution and consider an alternative methodology which allows it to accommodate technological change while maintaining fidelity to the text.
Technological change is a powerful example of the difficulties created by the need to adapt a constitution drafted in the 1890s to advances in the 21st century using the connotation–denotation methodology. These problems illustrate the need for a more coherent methodology which balances an enduring constitution with the need to remain faithful to the text. In this Part, I do not seek to put forward a radically new theory of constitutional interpretation. Instead, I propose an alternative methodology which focuses the Court’s attention on using the purpose of a constitutional provision to determine the essential meaning of the subject matter and applying that purpose in light of contemporary developments.
This proposed methodology should be distinguished from the use of purpose in purposive powers such as the defence power in s 51(vi) and the use of legislative purpose in some aspects of characterisation.[181] It is a moderate approach to determining the scope of a subject matter power which more explicitly encapsulates methods that the Court already uses. It builds on the familiarity of purpose as a concept in statutory interpretation and the trends in constitutional interpretation towards substance over form, the use of purpose and history, and consideration of contemporary meaning. While this methodology might lead to results similar to those under connotation–denotation, by allowing the Court to adapt the Constitution to technological change, it provides a clearer conceptual framework in its preference for substance over form.
This Part will outline the increasing rise of purpose in constitutional interpretation to illustrate the interpretative trends upon which this approach is based, and then elaborate on the proposed methodology, outline some of its difficulties and apply it to ss 51(v) and 51(xviii).
The orthodox approach of literalism is based on the view that the Constitution should be interpreted according to the normal rules of statutory interpretation.[182] Although at common law literalism was supplemented by the purposive approach which had its origins in the ‘mischief rule’,[183] this approach only applied when a literal approach produced an ambiguity or inconsistency.[184] However, there has more recently been a trend towards the purposive, non-literal construction of statutory provisions.[185]
This trend was reinforced in 1981 by s 15AA of the Acts Interpretation Act 1901 (Cth) (‘Acts Interpretation Act’), which provides that a construction promoting the purpose or object underlying an Act shall be preferred to a construction that would not promote that purpose or object. This responded to criticisms of Australian courts, including the High Court, in the 1970s and 1980s for applying an Engineers-style approach to the interpretation of taxation legislation.[186] The purpose is usually deduced by looking at the statute as a whole. The liberalisation of rules concerning the use of extrinsic, non-textual materials[187] has also enabled consultation of the history of the statute,[188] parliamentary debates, commission reports and international agreements.[189]
Although some argue that s 15AA is no more than a statutory recognition of the common law which applies where literalism produces ambiguity,[190] Pearce and Geddes argue that s 15AA requires the purpose to be taken into account, even if the meaning of the words is clear, to determine whether there is an alternative interpretation which promotes the purpose or object of the Act.[191] Purpose may also be used to read missing words into a legislative provision if ‘by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved.’[192] However, the Court’s role is to construe an Act in light of its purpose rather than to rewrite it.[193] For example, although a judicial proponent of the purposive approach, Kirby J has stated that he has been bound in several cases to give effect to the clear meaning of a statute even though in his opinion the result is anomalous or unfair.[194]
Although s 15AA does not apply to constitutional interpretation, the Constitution has been subject to the less formal movement in favour of purposive construction and against technical literalism that has had such a powerful influence upon statutory interpretation.[195] As Lane and Zines indicate, there has been an increasing examination of the purpose of constitutional provisions.[196] While most powers in the Constitution are ‘subject matter’ powers like ss 51(v) and 51(xviii), a distinction has been drawn between ‘subject matter’ powers and ‘purposive’ powers, such as the defence power in s 51(vi).[197] Where a power is purposive, the proportionality doctrine may be relevant in determining whether there is a sufficient connection between the purpose of the head of power and the purpose of the law in question. It has also been argued that a purposive element is relevant in the incidental aspect attaching to every power in s 51,[198] although Leask v Commonwealth[199] affirmed a more cautious view of the extent to which purpose and proportionality may be relevant to characterisation.[200]
More significantly, the role of purpose has risen in conjunction with the movement towards substance over form, particularly in the Court’s rejection of the technical formulae that were formerly applied to ss 90, 92 and 117.[201] In these cases it is clear that the perceived object of each of the provisions was the first step in determining its scope and application.[202] For example, the ‘criterion of liability’ test for determining whether a law levied an excise duty has been rejected by most judges, because its strict application was leading to incoherent results when tested against the rational, social or economic purposes that could be discerned from s 90.[203] The purpose of s 92, to ensure free trade, led to the conclusion that it guarantees freedom from discriminatory burdens of a protectionist kind.[204] Consideration of the purpose of s 117 — to ‘enhance national unity and a real sense of national identity by eliminating disability or discrimination on account of residence in another State’[205] — instilled ‘new life’ into the section.[206] Therefore, the attack on formalism has meant that the constitutional purpose cannot be avoided by merely choosing the appropriate term, criterion or formula.[207]
Although a purposive approach has been most obvious in relation to constitutional restrictions and guarantees, it is not confined to these areas.[208] Zines notes that in recent years there has been a shift towards relying on perceived policy objects.[209] From time to time, a purposive approach has been extended to interpreting a Commonwealth power in light of the reason for which it was conferred and its object.[210] For example, in the Tasmanian Dams case[211] the majority was influenced by their view that the external affairs power was conferred to enable the Commonwealth to play its part in an evolving international order.[212] In Actors and Announcers’ Equity Association v Fontana Films Pty Ltd Mason J argued that the corporations power was intended to ensure that all conceivable matters of national concern relating to the subject matter would be covered.[213] In Coldham[214] the Court held that ‘industrial disputes’ in s 51(xxxv) included all disputes between employers and employees which enabled the power to fulfil the object of preventing and settling disputes which could not be remedied by a State or State tribunals.[215]
A purposive approach which relies less on deductive reasoning and scrutiny of language has been assisted by the decision in Cole v Whitfield.[216] Overturning previous decisions, the Court held that the Convention Debates and historical material could be used 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’; but not to apply the subjective view of the framers.[217] This appears to embrace the ‘mischief rule’ of statutory interpretation, allowing historical material to be used to discover the apparent purpose or object of a constitutional provision, the mischief sought to be remedied, the history of a provision, and the contemporary meaning of the language used.[218]
The trend towards purposive statutory interpretation appears to propel the Court away from literalism and in the direction of intentionalism.[219] However, in endorsing the use of the Convention Debates to identify the object in Cole v Whitfield, the Court specifically denied the use of the Debates to ascertain the subjective intention of the framers and the proposition that the Court had adopted a principle of original intent.[220] Although not adopting a strictly originalist stance, the recognition of fidelity to the text by examining the purpose does embrace some originalist tendencies.
A strict originalist approach may have problems accommodating changes that were unforeseen when the Constitution was adopted, such as technological developments.[221] In fact, Justice Kirby cites Brislan as an example of the Court’s turning its back on originalism because radio broadcasting did not exist and was not known to the framers in the 1890s.[222] However, Sir Anthony Mason argues that moderate originalists are not offended by Brislan and accept connotation–denotation as a means for adapting to change.[223]
In fact, several moderate originalist theories have been put forward which embrace the purpose of a constitutional provision as a legitimate method of constitutional evolution. Goldsworthy argues that constitutions need to be adapted to unforeseen technological changes by broadly construing the original, intended meaning. One method he proposes is non-literal purposive construction, citing the power in the US Constitution to raise ‘Armies’ and ‘a Navy’ and to regulate ‘the land and naval Forces’,[224] which fails to mention airforces, an unforeseen technological development. Goldsworthy argues that connotation–denotation does not help if airforces do not come within the connotation of ‘Armies’ or ‘Navy’, despite the clear purpose of the framers to give Congress power to raise and regulate the United States’ military.[225] Therefore, without a costly constitutional amendment, the only way to reach a result obviously consistent with the founders’ clearly expressed purpose is to interpret the words according to their spirit rather than their letter.[226] In recognising the possibility that this method could be used by judges to redraft the Constitution, he cautions that this approach should only be used where there is a clear underlying purpose and the words of the Constitution can be expanded or contracted in a simple and obvious way.[227] However, under strict originalism, no direct historical answer is possible in this example because it is clear that the framers did not have airforces in their mind at the time they drafted the Constitution.[228]
Lessig has proposed a method of ‘translation’ to explain how new readings of the US Constitution in a changed context remain faithful to past understandings of the document’s meaning and purpose.[229] Lessig argues that Brandeis J translated the values in the Fourth Amendment, which protect against trespass, to extend to wiretapping as a result of technological developments in surveillance and communication.[230] At the time of drafting, trespass was the only effective way that the state could invade privacy interests. Therefore, in a new technological era, the Court needed to read beyond the specific applications that the framers contemplated to find the meaning that they intended to constitutionalise.[231] Goldsworthy argues that Lessig’s method of constitutional interpretation, which puts the founders’ purposes into effect in today’s changed world, may involve radical departures from the words of the Constitution and substantial judicial redrafting.[232] As an originalist theorist, Lessig insists that translation requires judges to adjust the words of constitutional provisions if social changes have rendered those words incapable of achieving the framers’ purposes, but not for other reasons.[233] This resembles the originalist views of Bork[234] and Scalia,[235] who argue that old constitutional values must accommodate new circumstances or physical realities.[236]
Although he does not explicitly embrace a purposive approach, Kirk has proposed a theory of evolutionary originalism which provides a methodology for allowing the original meaning of the text to evolve to accommodate changing situations.[237] This theory limits the meaning to the essential 1899–1900 meaning of the words as understood in their historical and textual context, but allows a party to argue that this essential meaning has evolved in a way which can be characterised as within the realm of the original idea or concept.[238] As Kirk notes, this theory is consistent with an approach that has been applied in Australia by judges such as Higgins and Mason CJJ, Isaacs, Evatt and Deane JJ, and overlaps with the approaches of Kirby J and Dworkin’s distinction between concept and conception, as embraced by McHugh J.[239]
The proposed purposive methodology is an alternative tool to allow the Constitution to adapt to technological change. It builds on the accepted use of purpose in statutory interpretation and in some areas of constitutional interpretation by proposing that the use of purpose should be extended to determining the essential meaning of a term in a constitutional power. This replaces connotation–denotation, which determines the essential meaning of a constitutional term by reference to its essential attributes. As outlined above, connotation–denotation is a formalistic and largely artificial distinction which has been stretched beyond its theoretical reach. As some areas of constitutional interpretation have embraced a movement towards substance over form, it is reasonable to propose that a substance driven methodology, which uses constitutional purpose to ascertain the essential meaning of a term, should be preferred to a formulation relying on essential attributes.
This methodology is consistent with the trends towards substance over form and the use of purpose and historical material. It also provides a means of ensuring that the Jumbunna principle is fulfilled in today’s ever-changing world. It maintains fidelity to the text by considering the purpose of a constitutional provision in its textual and historical context, while recognising that the framers could not have provided for unforeseeable changes in the text, even if they intended to provide Commonwealth legislative power in those particular areas. In recognising that a constitutional document gives rise to textual ambiguity, this approach provides a methodology to assist judges in resolving this ambiguity by reference to purpose rather than individual policy judgments. In doing so, it encourages judges to declare the purpose that is applied rather than conceal it behind the guise of literalism.
This methodology should be clearly distinguished from the use of purpose in the characterisation of purposive powers and the incidental power, as well as the use of legislative purpose in some subject matter powers. Instead, this methodology focuses on an interpretation of subject matter powers by reference to the purpose of a constitutional provision.
Purpose should be determined by reference to the text and structure of the Constitution and the historical record as indicated by the successive draft Bills, the drafting process, the Convention Debates, contemporary writings and pre-Federation legislation. In the case of a subject matter such as technology, consideration should be given to which technologies existed at the time of Federation and what developments were reasonably foreseeable by the framers.
For example, in the case of s 51(v), the purpose of the provision can be ascertained by the textual formulation itself, the successive draft Bills and the historical context.[240] Historical evidence indicates that the inclusion of ‘other like services’ was intended to allow the Constitution to accommodate technological advances such as wireless telegraphy, which was merely speculative at the time. In this context, it could be reasonably concluded that had the founding fathers been able to foresee radio and television broadcasting they might have included them in s 51(v). The provision of ‘other like services’ in s 51(v) may be limited by reference to the essential attributes of the enumerated services, but if a purposive approach is taken, the spirit of the provision and the inclusion of ‘other like services’ to accommodate new and unforeseen technologies, more convincingly justifies the inclusion of developments such as radio and television broadcasting.
There are inherent difficulties with ascertaining the purpose of a constitutional provision. First, as in the case of s 51(xviii), where there is less historical material, it may be more difficult to determine the purpose of the power. As outlined in Part III, conclusions could be drawn from the fact that the more precise formulation of s 51(xviii) included the accepted categories of IP legislation pre-Federation, and that there was no reason to foresee that IP would later be extended to cover radically different technologies. By comparison with s 51(v), this is a less convincing account of the purpose and is more likely to lead to a restrictive reading of s 51(xviii).[241]
Second, problems may arise where there are competing purposes[242] and the Court is given the choice of selecting a version of history that supports a desired result. This raises similar issues to the problems of applying a broad or narrow view of the connotation. However, it could be argued that in contrast to connotation–denotation, a purposive approach provides judges with a more substantial guideline to assist in the resolution of textual ambiguity. This is because purpose is a more accepted concept which is fixed at 1900 and can be determined by reference to the historical record. This may be contrasted with the essential attributes which, as discussed above, are often constructed on the basis of familiar concepts at the time they are to be determined, for example, in 1935 for radio broadcasting. A second, but weaker, argument is that the historical record is more likely to indicate the subject matter which the provision was intended to address than the technical requirements which make up the essential attributes. This is because the nature of the drafting process inherently involved the insertion and deletion of particular expressions, and debate by the delegates as to the appropriate expressions or the intended effect of a provision. For example, in the case of s 51(v), the debate and redrafting of the formulation of the provision as outlined above indicates an intention to cover unforeseen technologies. This is more indicative of purpose than a technical understanding of the essential attributes of a term. It should be noted, however, where there are little historical records, as with s 51(xviii), references such as Quick and Garran[243] may offer more assistance in determining the essential attributes at the time than a search for purpose.
Third, there may be problems with the accuracy of the historical record. In contrast with statutory interpretation, where there is a clear process of experienced drafters drafting the legislation, explanatory memoranda, second reading speeches, and accountability to Parliament, the drafting of a constitution involves a less ordered process. Therefore, ascertaining the constitutional purpose may be less reliable.[244] Further, historical sources such as the Convention Debates should be approached cautiously since they express individual delegates’ views. Although Cole v Whitfield[245] allows the debates to be used to ascertain the mischief to be remedied or the subject matter which the provision was intended to address, it specifically denies their use to ascertain the subjective intentions of the framers.
Given these potential problems, where there is difficulty determining the purpose or there is room for a difference of opinion, consideration could be given to Zines’ suggestion that the advantage or otherwise of the matter being under federal control ought to be the decisive factor.[246] For example, in the case of s 51(xviii), it is clearly desirable for the Commonwealth to have power over plant breeders’ rights and circuit layouts as well as patents, designs, copyrights and inventions, in order to ensure a consistent national approach to encouraging technological advance. Given the similar purpose of each IP category, it is likely that had they been foreseen, the framers would have included them in s 51(xviii) and, therefore, the power should cover them.
The Constitution is a broad document intended to apply to the varying conditions which our community experiences as it develops and changes.[247] In considering the application of purpose as a guiding principle in constitutional interpretation, it is critical that the purpose is applied in light of contemporary developments. In this sense, the proposed framework mirrors the connotation–denotation distinction by allowing new and different items, unforeseen in 1900, to come within the essential meaning of the term where they fall within the constitutional purpose. As in the use of connotation–denotation, this approach embraces a progressive element by considering contemporary meanings. However, it is a moderate approach because it requires the purpose to be fixed to the text, structure and history of the Constitution rather than to the concept of the Constitution as a ‘living force’.[248] However, the emphasis on purpose, as determined by extrinsic sources, could represent a move away from literalism to embrace elements of textualism, originalism and progressivism.
If it can be established that the purpose of s 51(v) was to give power with respect to communication rather than individual communication, it would cover forms of broadcasting such as radio, television, and digital and Internet broadcasting. This is a reasonable conclusion to draw, given the historical evidence, the textual formulation of s 51(v), and evidence that the enumerated services are individual communication methods because they were the only foreseeable services. However, it would be more difficult to justify that the purpose of s 51(xviii) was to legislate with respect to IP generally, given the lack of historical evidence and the precise formulation of s 51(xviii) and, therefore, to allow contemporary developments such as plant breeders’ rights, circuit layouts and sui generis IP regimes that may be required in the future, to fall within the purpose of s 51(xviii).
Although the ss 51(v) and 51(xviii) cases demonstrate that the High Court is sympathetic to technological change, the methodology used in these cases lacks a clear conceptual framework, highlighting the theoretical problems with connotation–denotation and focusing on the essential meaning of a constitutional provision. The alternative methodology proposed in this article looks to the purpose of a constitutional term to determine its essential meaning instead of its essential attributes. This approach, which embraces substance over form, helps remove the theoretical difficulties that arise in extending s 51(v) to new forms of communication. However, given the absence of historical record in the drafting of s 51(xviii), it is less helpful in resolving the problems caused by the precise formulation of IP categories in the Constitution. The purposive methodology is not without its difficulties, for example, in the determination of constitutional purpose, but it provides a more solid basis for ensuring that the spirit of the Constitution endures, that it continues to apply to new developments in technology, and that fidelity to the text is maintained.
[*] LLB (Hons), BSc (ANU). The author would like to thank Dr George Williams, Dr David Bennett AO QC, Lyria Bennett, Michael Chin, Matthew Darke, Simon Fitzpatrick, Julian Leeser, Michael Mathieson, Professor John McMillan, Parissa Notaras, Kate Penhallurick and Peter Still for assistance and comments on a previous version of this article.
[1] Transcript of Proceedings, Grain Pool of WA v Commonwealth (High Court of Australia, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, commencing 5 October 1999) (Callinan J) <http://www.austlii.edu.au/au/other/hca/transcripts/1998/P34/1.html>. Copies of all Internet sources cited in this article are on file with the author. All URLs are valid as at 31 December 2000.
[2] Grain Pool of WA v Commonwealth [2000] HCA 14; (2000) 170 ALR 111 (‘Grain Pool’).
[3] Electronic Commerce Expert Group to the Attorney-General, Electronic Commerce: Building the Legal Framework (1998) <http://www.law.gov.au/aghome/advisory/eceg/ecegreport.html> [1.21].
[4] See R v Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608; Airlines of NSW Pty Ltd v New South Wales [No 2] [1965] HCA 3; (1965) 113 CLR 54; Michael Coper, Encounters with the Australian Constitution (1987) 366–8.
[5] John La Nauze, ‘Other Like Services: Physics and the Australian Constitution’ (1968) 1(3) Records of the Australian Academy of Sciences 36; John La Nauze, The Making of the Australian Constitution (1972) 69.
[6] La Nauze, The Making of the Australian Constitution, above n 5, 69.
[7] La Nauze, ‘Other Like Services’, above n 5, 41–2.
[8] La Nauze, The Making of the Australian Constitution, above n 5, 69.
[9] Ibid.
[10] Sir Samuel Griffith, Successive Stages of the Constitution of the Commonwealth of Australia (1891) document 12 (manuscript held in the Manuscript Collection, National Library of Australia).
[11] La Nauze, The Making of the Australian Constitution, above n 5, 69.
[12] Ibid.
[13] The United States postal power had been recently interpreted to include telegraphs in Pensacola Telegraph Co v Western Union Telegraph Co, 96 US 1 (1877); see La Nauze, ‘Other Like Services’, above n 5, 43.
[14] Official Report of the National Australasian Convention Debates, Adelaide 1897, 17 April 1897, 773.
[15] A Draft of the Australian Federation Bill 1892 s 45(xiii). Clark’s draft is appended to John Reynolds, ‘A I Clark’s American Sympathies and His Influence on Australian Federation’ (1958) 32 Australian Law Journal 62, 67–75.
[16] Reynolds, above n 15, 65.
[17] J M Neasey, ‘Andrew Inglis Clark Senior and Australian Federation’ (1969) 15 Australian Journal of Politics and History 8; La Nauze, The Making of the Australian Constitution, above n 5, 62–5, 75; La Nauze, ‘Other Like Services’, above n 5, 38.
[18] British North America Act 1867 (Imp) 30 & 31 Vict 13, c 3, s 91(22).
[19] British North America Act 1867 (Imp) 30&#