The Dead Hand of the Founders? Original Intent and the Constitutional Protection of Rights and Freedoms in Australia
| Author | Haig Patapan |
| Published date | 01 June 1997 |
| Date | 01 June 1997 |
| DOI | http://doi.org/10.22145/flr.25.2.1 |
| Subject Matter | Article |
THE
DEAD
HAND
OF THE FOUNDERS? ORIGINAL
INTENT
AND
THE CONSTITUTIONAL PROTECTION OF
RIGHTS
AND
FREEDOMS
IN
AUSTRALIA
Haig
Patapan*
The
Australian
High
Court
has
in
general rejected
the
use
of extrinsic historical
material
in
the
interpretation
of
the
Constitution.1
Though
it
has
consistently
claimed
that
in
interpreting
aConstitutional provision it is giving effect to
the
intentions of
the
founders,
it
has
not
been
prepared
to
turn
to the convention debates,
draft
constitutional bills
or
other
primary
records
in
order
to ascertain the
founders'
intentions. The
intention
is to
be
ascertained from
the
ordinary
and
natural
meaning
of
the
words
themselves, relying
on
the
proper
legal
methods
of
construction
and
interpretation.2
However,
even
when
this rule
was
considered
to
be
settled doctrine
there
were
exceptions.
In
those cases
where
the
words
were
ambiguous
the
Court
could
turn
to
the
drafts
of
the
Constitution "as a
matter
of history of legislation".3 As
well,
convention
debates
could
be
referred to "for
the
purpose
of seeing
what
was
the
subject
matter
of discussion,
what
was
the evil to
be
remedied,
and
so forth".4
1
2
3
BEcon,
LLB
(Qld); MA,
PhD
(Toronto); Lecturer, School
of
Politics
and
Public Policy,
Griffith University.
Attorney-General
(Cth);
ex
reI
McKinlay vCommonwealth (1975) 135 CLR 1,
at
17
per
Barwick
CJ,
at
47
per
Gibbs
J;
Attorney-General
(Cth)
v T &GMutual
Life
Society Ltd (1978) 52 ALJR
573,
at
583
per
Aickin
J;
Attorney-General
(Vic);
ex
reI
Black
vCommonwealth (1981) 146 CLR
559,
at
578
per
Barwick CJ,
at
167
per
Gibbs
J.
See PBrazil, "Legislative
History
and
the
Sure
and
True
Interpretation
of
Statutes
in
General
and
the
Constitution
in
Particular"
(1961) 4
UQLJ
1; JThomson, "Constitutional Interpretation:
History
and
the
High
Court: A
Bibliographical Survey" (1982) 5UNSWLJ 309; MCoper, "The Place of
History
in
Constitutional
Interpretation"
in
G
Craven
(ed),
The
Convention
Debates
1891-1898:
Commentaries,
Indices
and
Guide (1986) 5; HBurmester, "The
Convention
Debates
and
the
Interpretation
of
the
Constitution"
in
G
Craven
(ed),
The
Convention
Debates
1891-1898:
Commentaries,
Indices
and
Guide (1986) 25; CMcCamish, "The Use of Historical Materials
in
Interpreting
the
Commonwealth
Constitution" (1996)
70
ALJ
638.
Thus
the
Court's
literalism
and
legalism
has
influenced
the
nature
of extrinsic
material
that
could
be
consulted.
Note
also
that
there
are
other
arguments
for rejecting historical
materials
such
as
the
lack
or
inaccessibility of
such
material, as
well
as
the
difficulty
of
establishing
such
an
intention
due
to
the
different
opinions
voiced
in
the
course
of
the
debates,
the
fact
that
the
debates
are
silent
on
many
issues
and
that
in
a
number
of
instances
the
enactments
were
compromises.
The
exception
was
confined
to
the
draft
bills
of
1891, 1897
and
1898.
Tasmania
v
Commonwealth (1904) 1CLR 329
at
333
per
Griffith
CJ;
Seamen's
Union
of Australia v
Utah
Development Co (1978) 53 ALJR 83
at
92
per
Stephen
J.
Municipal Council ofSydney vCommonwealth (1904) 1CLR 208,
at
213-4
per
Griffith CJ.
212
Federal
Law
Review Volume
25
However,
in
its
more
recent decisions the
Court
has
sug~ested
that
it
may
be
prepared
to give greater recognition to
such
historical material.
In
Cole
vWhitfield
the
majority
suggested
that
convention debates could
be
consulted "for the
purpose
of
identifying the
contemporary
meaning
of language used, the subject to
which
that
language
was
directed
and
the
nature
and
objectives of
the
movement
tovvards
federation from
which
the compact of the Constitution finally emerged".6
And
in
New
South
Wales
vCommonwealth (the
Corporations
case)7 the
Court
relied
on
the conve11tion
debates
in
order
to
interpret
the Commonwealth's corporations power. This
new
perspective is still constrained, however,
by
the
requirement
that,
at
least
in
the
first
instance,
the
words
construed
be
ambiguous. Nevertheless,
such
a
step
has
been
described
by
some commentators as
an
advance
on
the Court's traditional literalism
and
legalism since
the
notion
of ambiguity is adifficult concept to contain.8
It is arguable
that
the Court's recent implied rights decisions
have
effectively
removed
this initial constraint of "ambiguity" so
that
there is
now
no
real limit to
the
I
use
of historical materials
in
giving
meaning
to the terms of
the
Constitution.9This I
proposition
can
be
defended
on
the basis
that
the Court's
implied
rights decisions, I
though
relying
on
specific provisions
in
the Constitution,
have
used
them
as
merely
I
starting
points
for constructing a
meaning
that
exists, if
at
all,
within
the interstices of I
the
provisions.
In
other
words,
the Court's recognition of
implied
rights
means
that
it
is i
articulating
the
general
intent
or
animating spirit of the
enactment
as awhole. Precisely I
because
the
rights are implied, there is
no
requirement
for the presence of textual I
ambiguity; there is
nothing
to constrain the
Court
from looking
at
the founders' I
intentions
in
attempting
to
understand
the
nature
of the Constitution as awhole. I
Consequently, since
implied
rights
draw
upon
the
liberal
foundations of
the
~
Constitution,
the
Court
will
in
time
need
to elucidate its uILderstanding of the founders' I
notions
of citizenship, rights
and
freedoms.
What
then
are the founders' conceptions of liberalism
and
Australian
I
constitutionalism? Acomprehensive
answer
to this
profound
question is clearlYI
beyond
the
scope of this paper. Nevertheless, it is possible to look to Australia's!
founding
in
order
to gain some insight into the philosophical
presuppositions
of
the~
founders
and
the
extent to
which
these ideas contributed to the
shaping
of
the!
Australian
Constitution. Auseful starting
point
in
this
endeavour
is
an
attempt
tOI
discern
the
founders' notions of rights.10 Such
an
understanding
allows aclearer accesS'
to
the
notion
of liberalism
and
progress
presupposed
by
the
founders
and
thereby
thE:
nature,
extent
and
form of freedom
guaranteed
by
the Constitution. Accordingly,
WE
will explore this question
by
turning
to
what
the founders themselves actually
said
5
6
7
8
9
10
GCraven, "The Crisis
of
Constitutional Literalism
in
Australia"
in
H P Lee anc
G
Winterton
(eds), Australian Constitutional
Perspectives
(1992)
1.
Cole
vWhitfield (1988) 165 CLR 360
at
385.
New South
Wales
vCommonwealth (1990) 169 CLR 482.
See GCraven, above n 5
at
22.
Australian
Capital
Television Pty Ltd vCommonwealth (1992) 177 CLR 106; Nationwide
Newj
Pty Ltd vWills (1992) 177 CLR
1;
Theophanous
v
Herald
and
Weekly
Times
Ltd (1994) 182 CLI,
104;
Stephens vWest Australian
Newspapers
Ltd (1994) 182 CLR 211; Cunliffe vCommonwealt
(1994) 182 CLR 272.
The
founders'
understanding
of federalism is explored
by
J
Warden,
"Federalism
and
th
Design
of
the
Australian
Constitution" (1992) 27 AJPS 143. For
writings
on
the
history
0
particular
sections see generallyJThomson, above n
1,
AppendiX A.
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