Political Freedoms and Entitlements in the Australian Constitution — An Example of Referential Intentions Yielding Unintended Legal Consequences
| Author | Patrick Emerton |
| Published date | 01 June 2010 |
| Date | 01 June 2010 |
| DOI | http://doi.org/10.22145/flr.38.2.1 |
| Subject Matter | Article |
POLITICAL FREEDOMS AND ENTITLEMENTS IN THE
AUSTRALIAN CONSTITUTION — AN EXAMPLE OF
REFERENTIAL INTENTIONS YIELDING UNINTENDED
LEGAL CONSEQUENCES
Patrick Emerton*
This article is about the interpretation of legal texts. Its immediate a im is to defend,
against a certain sort of originalist objection, the well-known ca ses that h old that the
Australian Constitution, by implication, guarantees certain political freedoms and
entitlements. That is not to say that the article intends to vindicate the outcome of
every one of those cases — rather, it intends to vindica te the general methodology and
orientation of those cases as stated by the High Court in Lange v Australian Broadcasting
Corporation.1
The general characte r of the orig inalist objection I have in mind is that no
implication (other than perhaps a strictly logical implication) can be drawn from a
legal text which is at odds with the actual intentions of the authors of that text. This
claim is taken to rest on a more general account of the role of intentions in
interpretation. Thus, for example, Goldsworthy contends that:
courts conceive of statutes as utterances … Crucial to utterance meaning … is evidence of
speaker's meaning, which in this case is legislative intent. … If … genuine implications
depend on evidence of speaker's meanings, then the absence of such evidence entails the
absence of implications.2
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* Lecturer, Faculty of Law, Monash University. This article was originally presented to the
2009 Constitutional Theory Colloquium, Centre For Comparative Constitutional Studies,
University of Melbourne Law School. I would like to thank Steve Barker and Jeff
Goldsworthy for many helpful discussions on the subject matter of the article, Jayani
Nadarajalingam for her research assistance, and John Daley, Natasha Guantai, Toby
Handfield, Kevin Heller and Dale Smith for their comments on earlier versions.
1 (1997) 189 CLR 520 ('Lange').
2 Jeffrey Goldsworthy, 'Implications in Language, Law and the Constitution' in Geoffrey
Lindell (ed), Future Directions in Australian Constitutional Law (1994) 150, 166–67. Although
this article takes Goldsworthy's writings on the Australian Constitution as its principal
target, the argument of the article has broader relevance to debates about originalism and
the meaning of legal texts in other jurisdictions. Solum notes that 'Predating much of the
American work on the New Originalism was Jeffrey Goldsworthy's work, addressed to the
Australian Constitution, but developed with an explicit awareness of the theoretical
debates swirling around American constitutionalism': Lawrence B Solum, ' Semantic
Originalism' (2008) Illinois Public Law and Legal Theory Research Papers Series No 07–24 (draft
created on 22 November 2008) Social Science Research Network
170 Federal Law Review Volume 38
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And he then goes on to assert that 'utterances of people well known not to i ntend
something should be interpreted to imply that they did intend it only as a last resort, if
there is no other way of making sense of their utterance.'3
This assertion is crucial to Goldsworthy's argument against the soundness of the
implied political freedom cases. Whereas I accept the first quoted passage, however, I
reject the second: it is possible for a word to refer to something even if its so ref erring
would be at odds with the desires, expectations and intentions of t he one who uttered
the word. Part VI of th e article will explain ho w the political freedoms and
entitlements that the High Court has p urported to find to be guaranteed by the
Constitution can be understood as implications arising from such 'unintended'
reference.
This im mediate aim is, in certain respects, modest. For example (and consistently
with the first q uotation above), the article assumes without argument that to know the
meaning of the text is to know the co ntent of the law. The way is therefore left open for
originalists (and others) to conti nue to object to the political freedoms cases, but such
continued objection would have to rest upon an originalism (or other interpretive
doctrine) which advocated departure from, rather than fidelity to, the text. Such a
doctrine would have to be defended on expressly political grounds, rather than as a
necessary consequence of apolitical considerati ons of meaning and interpretation.4 The
article therefore deprives originalists of what has, to date, appeared to be a low-cost
objection to the political freedoms cases.
Furthermore, the article draws upon two import ant are as of contemporary
philosophy of language — the theory of speech acts,5 and the realist semantics of
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<http://papers.ssrn.com/abstract=1120244> at 28 May 2010, 19. It follows from this that a
consideration of the implications or limitations of Goldsworthy's position will have
ramifications for the American debate (for one example of such ramifications, see below n
55). (Solum, a t 19, identifies as Goldsworthy's 'first major statement' of his position Jeffrey
Goldsworthy, 'Originalism in Constitutional Interpretation' (1997) 25 Federal Law Review 1.
But much of the technical argument of this later piece is anticipated by 'Implications in
Language, Law and the Constitution'.
3 Goldsworthy, 'Implications', above n 2, 182.
4 For example, Allan and Aroney argue that the purpose of a written constitution is to 'lock
in' certain political outcomes, and that it would vitiate this purpose if the process of
interpretation were permitted to lead to constitutional outcomes at odds with the beliefs
and expectations of the framers: James Allan and Nicholas Aroney, ' An Uncommon Court:
How the High Court of Australia Has Undermined Australian Federalism' (2008) 3 0 Sydney
Law Review 245, 246–49, 251–55. This is, in effect, an argument that there should be a
judicial power of constitutional rectification if the proper interpretation of the text would
lead to outcomes different from those contemplated and desired by the framers (on the
notion of rectification, see below n 16 and accompanying text). Goldsworthy rejects the
existence of a power of rectification grounded in such political considerations:
'Implications', above n 2, 183.
5 Stephen J Barker, Renewing Meaning: A Speech-Act Theoretic Approach (2004). Unlike earlier
work on speech acts, including that which Goldsworthy discusses ('Implications', above
n 2), Barker presents the theory of speech acts, not as an adjunct to a general semantic
theory but, as a general semantic theory: see below n 29.
2010 Freedoms and Entitlements in the Australian Constitution 171
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Hilary Putnam6 and Saul Kripke7 — to advance an account of interpretation that is
attractive independent of its conse quences for a certain family of A ustralian
constitutional decisions. In a manner that will become clear over the course of pa rts II
to V, this account identifies as the key interpretive question for most words — those
words that are not logical particles or sim ilar grammatical devices — a question about
reference. Consequently, interpretation re quires consideration not only of the intentions
of those who use words, but of the nature of the things that are talked about by using
them. As we shall see, it is Goldsworthy's failure to consider the importance of the
second of these two elements of the inquir y that leads him to misconstrue the
relationship between intention and interpretation. Not only is this relationship more
complicated than the originalist cr itics have generally allowed: a s parts IV and onward
will demonstrate, getting it right will require that sociological and historical inquiry
play something like the role in interpretation that many non-originalists might favour.
Thus, apolitical considerations of meaning and interpretation in fact seem to push the
other way.
I SOME VARIETIES OF IMPLICATION
The political freedoms and entitlements with which this article is concerned are
generally said to be implied by the Constitution. It is therefore appropriate to begin
with a consideration of the workings of implications. Goldsworthy identifies four
varieties of implication:8
• logical implications;
• implications arising from deficient expressions;
• deliberate implications; and
• implicit assumptions.
The first, logical implications, he iden tifies as following from semantic conventions.9
Making sense of the claim that logical a nd mathematical truths are true by convention
is not a straightforward matter,10 but this article will not consider t he issue.11
The second, implications arising from deficient expressions, come about when there is
an evident gap between what it is that a speaker's words actually communicate (if
anything), and what it is evident that the speaker was actually intending to
communicate, such that it is rational to infer some sort of misuse of words or
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6 'Dreaming and Depth Grammar' in R J Butler (ed), Analytical Philosophy (1962) 211, 218–21;
'The Meaning of "Meaning"' in Mind, Language and Reality: Philosophical Papers, Volume 2
(1975) 215–217.
7 Naming and Necessity (1980).
8 Goldsworthy, 'Implications', above n 2, 154.
9 Ibid 156.
10 See, eg, J Alberto Coffa, The Semantic Tradition from Kant to Carnap: To The Vienna Station
(1991) chs 7, 17.
11 Goldsworthy does not consider an additional interesting ca tegory of semantically -
determined implications, namely, conventional implicatures, which contribute to meaning
without contributing to truth-conditions: see Barker, above n 5, 40, 42 –44, 100. An example
is the non-truth-conditional implication, in troduced by use of the conjunction 'but' in place
of 'and', that a contrast obtains between the conjuncts. This article w ill not consider
conventional implicatures either.
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