Constitutional Interpretation Wholly Unmoored from Constitutional Text: Can the HCA Fix Its Own Mess?
| Published date | 01 March 2020 |
| Author | James Allan |
| DOI | 10.1177/0067205X19890432 |
| Date | 01 March 2020 |
| Subject Matter | In Focus: Interpretation |
Article
Constitutional Interpretation
Wholly Unmoored from
Constitutional Text:
Can the HCA Fix Its Own Mess?
James Allan*
Abstract
In this article, the author argues that certain types of constitutional interpretation in Australia have
become far too unmoored from the written constitutional text and its intended meaning, the
reductio ad absurdum of such unmoored general approaches being the recent High Court of
Australia case Brown. The author therefore asserts that there is a serious problem with some types
of constitutional interpretation in Australia that have evolved to a point where we can observe few
if any outside constraints on the outcomes available to top judges. The author finishes, briefly, by
considering what can be done about this state of affairs.
I Introduction
In October of 2017, the High Court of Australia (HCA) released its judgment in the case of former
Greens Party leader Bob Brown and other protesters who were arrested on forest land in Tasmania.
This is the Brown v Tasmania decision.
1
The version of the case I first printed off was 168 pages
long, 33 of which simply contained the 585 footnotes. The non-footnotes portion of the judgment
took up 568 paragraphs of reasoning. There was a plurality judgment by Kiefel CJ, Bell and Keane
JJ, and separate judgments by the other four Justices. By a count of 6:1 they struck down various
provisions of the Workplaces (Protection from Protesters) Act 2014 (Tas) (‘Protesters Act’). This
invalidation of a statute passed by a democratically elected legislature was done on the purported
basis that the Australian Constitution afforded top judges the power to do so when such statutes are
held, by them, unduly to limit the ‘freedom of communication about matters of politics and
government which is implied in the Constitution’.
2
In the entirety of the plurality’s judgment,
there was not a single, solitary reference to any actual provision in Australia’s written Constitution.
* School of Law, University of Queensland, Brisbane, Australia. The author may be contacted at j.allan@law.uq.edu.au.
1. Brown v Tasmania (2017) 261 CLR 328 (‘Brown’).
2. Ibid 340 [5] (Kiefel CJ, Bell and Keane JJ).
Federal Law Review
2020, Vol. 48(1) 30–45
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DOI: 10.1177/0067205X19890432
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Zero. Nothing in the Constitution’s text was pointed to that supposedly affords the top judges this
incredible power to strike down or invalidate statutes on rights-related grounds.
The same is true of the judgments of Gageler J, of Nettle J and of Edelman J. In the judgment
of Gordon J, there was a one-sentence reference to ss 7, 24 and 128 of the Constitution implying
this freedom of political communication.
3
In other words, only in one small part of one paragraph
in a 568-paragraph case, and in a dissenting judgment at that, is there any mention whatsoever of
what in the written Australian Constitution gives judges the power to do what they then pro-
ceeded to do.
Of course in all of the judgments there were endless citations to earlier High Court cases,
starting with the 1992 decision of Australian Capital Television Pty Ltd v Commonwealth
(‘ACTV’),
4
through Lange v Australian Broadcasting Corporation (‘Lange’),
5
Coleman v Power
6
and Unions NSW v New South Wales (‘Unions NSW’),
7
on up to the recent McCloyvNSW
(‘McCloy’) case,
8
along with a vast edifice of other judicial decisions. But there was not a single
reference anywhere in any of the majority judgments to any actual provisions that could be said to
give judges this immense power to overrule and gainsay an elected legislature (and indeed in this
case to invalidate provisions in legislation foreshadowed before an election).
In this article, I will argue that certain types of constitutional interpretation in Australia have
become far too unmoored from the written constitutional text and its intended meaning, the
reductio ad absurdum of such unmoored general approaches being Brown. In other words, I will
assert that we have a serious problem with some types of constitutional interpretation in
Australia. We have evolved to a point where we can observe few if any outside constraints on
the outcomes available to top judges. Too many of the constraints—constraints affecting whether
the judges can strike down impugned statutory provisions on asserted constitutional grounds—
are nothing more than self-imposed judicial constructs. The co nstraints are not external to the
beliefs, preferences, proportionality calculations, value judgements and the like that the judges
happen to bring to cases (and that other judges happened to bring to earlier cases). The consti-
tutional text and the intentions of the drafters and ratifiers of that constitutional text are doing
virtually none of the work.
To make that case I will simply focus on the so-called implied freedom of political communi-
cation that has been ‘discovered’ or ‘found’ (by top judges) to exist in some sort of non-explicit
aspect of ‘the text and structure of the Constitution’ and hence to afford (to those same top judges)
a power to invalidate statutes. However, by choosing to focus on the implied freedom construct
that ends up giving us Brown, and indeed that by a related evolutionary path also gave us Roach v
Electoral Commissioner (‘Roach’)
9
and Rowe v Electoral Commissioner (‘Rowe’),
10
Iambyno
means claiming that unmoored constitutional interpretation in Australia is restricted to just that
particular area of such interpretation. One could plausibly make the same sort of claim as regards,
3. Ibid 430 [312].
6. (2004) 220 CLR 1.
7. (2013) 252 CLR 530 (‘Unions NSW’).
8. (2015) 257 CLR 178 (‘McCloy’).
10. (2010) 243 CLR 1 (‘Rowe’). See generally James Allan, ‘The Three ‘Rs’ of Recent Australian Judicial Activism:
Roach,Rowe and (No)’Riginalism’ (2012) 36(2) Melbourne University Law Review 743 (‘The Three Rs’).
Allan 31
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