Deriving Constitutional Implications: The Role of ‘External’ Sources in the Text and Structure Approach

AuthorCosta Avgoustinos
Published date01 June 2022
Date01 June 2022
DOIhttp://doi.org/10.1177/0067205X221086670
Subject MatterARTICLE
Article
Federal Law Review
2022, Vol. 50(2) 249272
© The Author(s) 2022
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DOI: 10.1177/0067205X221086670
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Deriving Constitutional Implications:
The Role of ExternalSources in the
Text and Structure Approach
Costa Avgoustinos*
Abstract
The High Court applies the text and structure approachwhen deriving constitutional implications. This
requires implications to be drawn from the textand structureof the document. A particular line of
criticism has been made by some scholars that frames this approach as a falsehood. According to these
scholars, judges claim to be drawing implications solely from the textand structurebut are, in fact,
employing externalsources when carrying out this task. I argue that this criticism is misguided. Judges are
using externalsources to help illuminate the ideas conveyed by, or contained within, the textand
structure.This means that their use of externalsources is not necessar ily a circumvention of the text and
structure approach but an accompaniment to it. The relevant scholarscritique seems to be rooted in
f‌lawed conceptualisations of the Constitutionstextand structureand their ideational content. This
work examines the problems with the relevant scholarscritique and offers what I consider to be a more
accurate explanation of the operation (and shortcomings) of the text and structure approach.
Received 1 June 2021
Introduction
In the landmark case of Lange v Australian Broadcasting Corporation (Lange), the High Court clarif‌ied
its approach to establishing new constitutional implications.
1
It held that implications may only be derived
from the text and structure of the Commonwealth Constitution (Constitution).
2
The Court outlined this
text and structure approachin the context of explaining how a particular implication, the freedom of
political communication, is drawn from the document.
3
The unanimous, joint judgement states:
* This article is based on a thesis completed by the author for the degree of Doctor of Philosophy: Constantine Avgoustinos,
Climate Change and the Australian Constitution: The Case for the Ecological Limitation (PhD Thesis, University of New
South Wales, 2020). I would like to thank Gabrielle Appleby, Ben Golder and Amelia Thorpe for their supervision and
support. The author may be contacted at Costa.Avgoustinos@uts.edu.au.
1. (1997) 189 CLR 520 (Lange).
2. Ibid 5667.
3. Before receiving unanimous support in Lange, the implied freedom had gained majority support in Nationwide News Pty
Ltd v Wills(1992) 177 CLR 1 (Nationwide News) and Australian Capital Television Pty Ltd v Commonwealth (1992) 177
CLR 106 (ACTV).
Since McGinty [v Western Australia (McGinty)] it has been clear, if it was not clear before, that the
Constitution gives effect to the institution of representative governmentonly to the extent that the text
and structure of the Constitution establish it. In other words, to say that the Constitution gives effect to
representative government is a shorthand way of saying that the Constitution provides for that form of
representative government which is to be found in the relevant sections. Under the Constitution, the
relevant question is not, What is required by representative and responsible government?It is, What
do the terms and structure of the Constitution prohibit, authorise, or require?
4
Thus, a particular conceptualisation of representative governmentmanifests from relevant
constitutional provisions.
5
This includes sections 7 and 24, which state that members of Com-
monwealth Parliament are to be directly chosen by the people.
6
The Court held that an implied
limit on Commonwealth and State legislative and executive action unduly burdening freedom of
political communication was required to preserve this form of representative government.
7
In this
manner, the implied freedom was drawn from the text and structure of the Constitution.
Subsequent case law conf‌irms that the text and structure approach is to be employed when
deriving implications beyond the freedom of political communication.
8
In the 2020 case of Gerner v
Victoria, for example, Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ stated that the need for
implications to be drawn from the text and structure of the Constitution is now well settled.
9
The
judges applied the text and structure approach in this matter to assess the viability of establishing an
implied freedom of movement.
10
The plaintiffs proposed its establishment in response to Victorian
government restrictions on movement during the COVID-19 pandemic.
11
More than two decades
after Lange, the text and structure approach remains the interpretive framework within which the
Court determines the viability of such proposed implications.
While the Court continues to employ it, this approach has attracted criticism in constitutional law
scholarship.
12
This article centres on, and challenges, a particular line of criticism from scholars who view
4. Lange (n 1) 5667 (citations omitted), citing McGinty v WesternAustralia (1996) 186 CLR 140, 168 (Brennan CJ), 182
3 (Dawson J), 231 (McHugh J), 2845 (Gummow J) (McGinty).
5. For discussion on the lack of clarity surrounding the specif‌ic provisions that this includes see Jeremy Kirk, Constitutional
Implications II: Doctrines of Equality and Democracy(2001) 25(1) Melbourne University Law Review 24, 49 (Constitutional
Implications II).WhileIusethetermrepresentative governmentin this article, judges sometimes used the term representative
democracywhen explaining the establishment of the implied freedom. These terms appear to be broadly interchangeable in this
context: Jeremy Kirk, Administrative Justice and the Australian Constitutionin Robin Creyke and John McMillan (eds),
Administrative Justice - The Core and the Fringe (Australian Institute of Administrative Law, 2000) 78, 99101.
6. Lange (n 1) 5578.
7. Ibid 560.
8. Catherine Penhallurick, Commonwealth Immunity as a Constitutional Implication(2001) 29(2) Federal Law Review
151, 162; Jeremy Kirk, Constitutional Implications I: Nature, Legitimacy, Classif‌ication, Examples(2000) 24(3)
Melbourne University Law Review 645, 647 (Constitutional Implications I).
9. (2020) 385 ALR 394, 398.
10. Ibid 398.
11. Ibid 395-6. The Court ultimately held that this proposed implication is not to be established: at 404.
12. See especially Adrienne Stone, The Limits of Constitutional Text and Structure: Standards of Review and the Freedom
of Political Communication(1999) 23(3) Melbourne University Law Review 668 (The Limits of Constitutional Text
and Structure); Adrienne Stone, Limits of Constitutional Text and Structure Revisited(2005) 28(3) University of New
South Wales Law Journal 842 (Limits Revisited); Kirk, Constitutional Implications I(n 8); Kirk, Constitutional
Implications II(n 5); Nicholas Aroney, Towardsthe Best Explanation of the Constitution: Text, Structure, History and
Principle in Roach v Electoral Commissioner(2011) 30(1) University of Queensland Law Journal 145 (Towards the
Best Explanation of the Constitution); Jeffrey Goldsworthy, Constitutional Implications Revisited(2011) 30(1)
University of Queensland Law Journal 9(The Implied Rights Case: Twenty Years On).
250 Federal Law Review 50(2)

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