The Convergence of form and Function: Commentary on Dixon
| Published date | 01 September 2015 |
| Author | Brendan Lim |
| Date | 01 September 2015 |
| DOI | 10.22145/flr.43.3.7 |
| Subject Matter | Article |
THE CONVERGENCE OF FORM AND FUNCTION:
COMMENTARY ON DIXON
Brendan Lim*
In the very first decision reported in the C ommonwealth Law Reports, Griffith CJ,
Barton and O’Connor JJ mooted whether an appea l lay to the Court from a judgment
given after the coming into force of the Constitution but before the coming into force of
the Judiciary Act 1903 (Cth).
1
The Con stitution, from 1 January 1901, vested the judicial
power of the Commonwealth in the High Court and made provision for the appellate
and other jurisdiction of the Court. But only the Judiciary Act 1903 (Cth), from
25 August 1903, ‘actually constituted’ the apparatus and the machinery of the Court; the
appellate jurisdiction ‘could not, of course, be exercised’ before then.
2
The question
presented, ‘one of difficulty and importance’, ultimately did not need to be resolved
because leave to appeal would be refused on other grounds in any event.
3
Nonetheless,
the Court articulated the reasons that supported each of the competing views of the
operation of ss 71 and 73 of the Constitution. There was said to be
much force in the contention tha t the jurisdiction of [the lower courts] was, from the first,
intended to be subject to the right of appeal to the High Court, and that that right, being a right
conferred by the Constitution itself upon suitors, could not be lost or taken away by mere
inaction of the Parliament.
4
‘On the other hand,’ the Court continued, it may be said that
a successful litigant is entitled to know when he can regard the litigation as at an end … [H]is
right should not be held to be in suspense unless such suspension is enacted in plain and
unambiguous language.
5
The question in this way exposed two constructions of ss 71 and 73, two conflicting
rights engaged by the constructional choice, and the beginnings of a value-laden
resolution of the question. Functionalism, like formalism, has been part of constitutional
reasoning from its very beginnings in Australia.
One might think it not so surprising to find this kind of functionalist reasoning in
the Griffith Court. After all, what else but functionalism created and sustained the
federalist doctrines of the implied immunities of instrumentalities and reserved State
* Barrister, New South Wales Bar; Fellow, Gilbert + Tobin Centre of Public Law, UNSW.
1
Dalgarno v Hannah (1903) 1 CLR 1.
2
Ibid 11.
3
Ibid 12. See also Re Macks; Ex parte Saint (2000) 204 CLR 158, 211 [140] (McHugh J).
4
Dalgarno v Hannah (1903) 1 CLR 1, 11.
5
Ibid 12.
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