Response to Commentators
| DOI | 10.22145/flr.43.3.9 |
| Date | 01 September 2015 |
| Published date | 01 September 2015 |
| Author | Rosalind Dixon |
| Subject Matter | Article |
RESPONSE TO COMMENTATORS
Rosalind Dixon*
Let me begin by offering my sincere thanks to Gabrielle Appleby, Brendan Lim and
James Stellios for their extremely generous and insightful comments on ‘The Functional
Constitution’, and to Anthony Connolly and the Federal Law Review for making this mini-
symposium possible. One of the great delights of scholarship is the opportunity to
exchange ideas with colleagues in this way. The process also invariably makes our ideas
better: in this case, the three comments point to an important set of questions that clearly
remain to be addressed if a functional approach to constitutional interpretation is ever
to be fully implemented by the High Court.
Lim asks how the Court, or scholars, are to go about identifying the kinds of
constitutional values that find sufficient support in the text, history and structure of the
Constitution to count as valid arguments for the purposes of a functional approach (the
‘method’ question). Stellios asks how functionalism intersects with broader theories or
conceptions of the judicial role, and whether it is p ossible for the Court to adopt a
functionalist approach without first addressing this initial or overarching question (the
‘judicial role’ question).
1
And Appleby asks how a functional approach could be actually
institutionalised, or how existing constitutional practice and procedure might be
adapted to provide the necessary factual basis for a truly functional approach (the
‘procedural’ question).
These are deeply important questions, which go to the heart of the functionalist
project, and ones that I cannot hope f ully to answer in this short reply. A great deal of
work remains to be done by myself, and other scholars sympathetic to a functional
approach, in providi ng fuller and more a dequate answers in the future. I do want,
however, to sketch out at least the beginnings of a response to each question.
On the method question, at least two broad approaches seem open to the Court. One
approach would be for the Court to take a largely historical or backward-looking
approach, and ask, first, what va lues were recognised by the common law or political
theory at the time the Constitution was adopted ; and second, whether the text or
structure of the Constitution gives some form of express support to those ideas or values,
or rather expressly rejects their role in our capital ‘C ’ constitutional system.
2
Express
affirmation of a value, in this context, would clearly mean it was relevant for the
purposes of a functional approach; whereas an express rejection of a value would mean
* Professor of Law, University of New South Wales.
1
Rosalind Dixon, ‘The Functional Constitution: Re-reading the 2014 High Court Constitutional
Term’ (2015) 43(3) Federal Law Review 455, 456.
2
Cf, eg, Kruger v Commonwealth (1997) 190 CLR 1.
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