The Functional Constitution: Re-Reading the 2014 High Court Constitutional Term

Published date01 September 2015
DOI10.22145/flr.43.3.5
Date01 September 2015
Subject MatterArticle
/tmp/tmp-17Qw4qgJTYlfUa/input THE FUNCTIONAL CONSTITUTION: RE-READING THE 2014
HIGH COURT CONSTITUTIONAL TERM
Rosalind Dixon*
ABSTRACT
A ‘functional’ approach to constitutional interpretation is well-accepted in many other
jurisdictions, including the United States, and offers a promising middle path between
the extremes of pure formalism and pragmatism. It is, however, under-developed as an
approach to constitutional interpretation, rather than doctrine, in Australia. The article
offers an exploration of what it would mean to adopt a more explicitly functionalist
approach to the interpretation of the Constitution, drawing on constitutional cases
decided by the High Court in 2014.
I INTRODUCTION
The idea of formalism in constitutional reasoning is one broadly familiar to Australian
constitutional lawyers: it suggests a strong, if not exclusive, emphasis on formal legal
materials, such as the text of the Constitution, prior court decisions, and formal sources
relating to the aims and understanding of the framers of the Constitution, or other aspects
of our constitutional history. The concept of functionalism, in contrast, has received only
limited attention in Australian constitutional discourse. Several scholars have done
important work in the context of Chapter III and the Kable doctrine on the distinction
between formalist and functionalist approaches to constitutional doctrine, or the
definition of various forms of government power.1 Some scholars have also developed
a notion of ‘purposive formalism’, which attempts to create a middle path between these

*
Professor of Law, University of New South Wales. The author thanks Gabrielle Appleby,
Joanna Davidson, Peter Gerangelos, Richard Holden, James Stellios, Adrienne Stone, George
Williams and participants at the UNSW Gilbert + Tobin Centre of Public Law 2015
Constitutional Law Conference for helpful comments on prior versions of the paper. Thanks
are also due to the HSF Law & Economics Initiative at UNSW for research support, and to
Melissa Vogt and Guy Baldwin for outstanding research assistance.
1 Peter Gerangelos, ‘Interpretational Methodology in Separation of Powers Jurisprudence: The
Formalist/Functionalist Debate’ (2005) 8 Constitutional Law and Policy Review 1; James Stellios,
The Federal Judicature: Chapter III of the Constitution (LexisNexis, 2010); Gabrielle J Appleby,
‘Imperfection and Inconvenience: Boilermakers’ and the Separation of Judicial Power in
Australia’ (2012) 31 University of Queensland Law Journal 265; Rebecca Welsh, ‘A Path to
Purposive Formalism: Interpreting Chapter III for Judicial Independence and Impartiality
(2013) 39 Monash University Law Review 66; Brendan Lim, ‘Laboratory Federalism and the
Kable Principle’ (2014) 42 Federal Law Review 519.

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two approaches.2 Others have considered functionalist approaches to the interpretation
of provisions such as ss 61, 80 and 117, or to Australian federalism more generally.3 Yet
there still remains relatively little work on the more general idea of a functionalist
approach to constitutional reasoning in Australia.4
This, the article argues, implies a clear loss for constitutional scholars and
practitioners: functionalism, at its core, invites courts directly and openly to rely on
substantive constitutional values, not simply more ‘formal’ legal sources. But in doing
so, it insists that courts should also be able in some way to source the particular values
they rely on in the text, history or structure of the relevant constitution. It thus offers a
potentially attractive middle-path between the extremes of pure formalism and
pragmatism or policy-oriented legal reasoning, which promises to combine the strengths
of both — ie, transparency and predictability, and a strong commitment to the rule of
law.
The article illustrates this argument using examples drawn from the High Court’s
constitutional decisions in 2014. Traces of functionalist reasoning, the article argues, can
be found in several decisions in the 2014 Term involving the Kable doctrine, as well prior
cases involving separation of powers principles. A focus on the functionalist dimension
to the Court’s reasoning can also help explain the seemingly quite variable ways in
which the Court, in these cases, has addressed arguments about the danger of falsely
‘cloaking’ certain powers with the aura of legitimacy gained from the involvement of
courts, or the power of judicial review.5 A more explicitly functionalist approach, in this
sense, may thus help promote both transparency and predictability as to the nature of
judges’ reasoning in applying existing constitutional doctrines.
In other areas, in contrast, functionalism remains largely underdeveloped in the High
Court’s approach to the Constitution. Even in the 2014 Term, there were a range of
constitutional issues that could usefully have been analysed through a functionalist lens
— including issues relating to the scope of the guarantee of ‘just terms’ in s 51(xxxi) of
the Constitution, notions of proportionality in the context of the implied freedom of
political communication, and the scope of Commonwealth legislative power under s
51(xxiiiA) of the Constitution. With the exception of Gageler J’s dissenting judgment in
Attorney-General (NT) v Emmerson, 6 however, few members of the Court have
approached these questions in functionalist terms. In these contexts, a turn toward a
more functionalist approach would thus mean a more significant change in the Court’s

2 Gerangelos, ‘Interpretational Methodology in Separation of Powers Jurisprudence’, above n
1; Welsh, above n 1.
3 George Winterton, Parliament, the Executive and the Governor-General: A Constitutional Analysis
(Melbourne University Press, 1983); Stellios, The Federal Judicature, above n 1; Amelia
Simpson, ‘The (Limited) Significance of the Individual in Section 117 State Residence
Discrimination’ (2008) 32 Melbourne University Law Review 639; Scott Stephenson, ‘Federalism
and Rights Deliberation’ (2014) 38 Melbourne University Law Review 709.
4 The major exception is, of course, the work of Leslie Zines on approaches to constitutional
interpretation: see Leslie Zines, The High Court and the Constitution (Federation Press, 5th ed,
2008) ch 17.
5 See Mistretta v United States, 488 US 361, 407 (Blackburn J) (1989) (‘Mistretta’) (‘The legitimacy
of the Judicial Branch ultimately depends on its reputation for impartiality and non-
partisanship’, and ‘[t]hat reputation may not be borrowed by the political Branches to cloak
their work in the neutral colors of judicial action’).
6 (2014) 253 CLR 393 (‘Emmerson’).

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current practice, toward a greater focus on underlying constitutional values (for example
in Emmerson or Williams v Commonwealth)7, or attention to questions of context and
practical effect (for example in Tajjour v New South Wales).8
The key aim of the article, however, is not to show that any particular decision of the
Court should be criticised on functionalist grounds. Rather, it is to argue that in general
the Court should be more willing to debate and analyse constitutional issues in
functional, as well as formal, terms — and that, in appropriate cases, parties to
constitutional litigation should help pave the way for this possibility by orienting their
practice accordingly.9 By doing so, the article suggests, judges and lawyers would not
only have the potential to make the Court’s approach to constitutional reasoning more
transparent and predictable, compared to an approach that is purely formal in nature.
They could also promote an approach that is at least somewhat more constrained by
objective legal sources than more purely pragmatic or policy-oriented approaches.
The remainder of the article is divided into five parts. Part I offers a more detailed
definition of functionalism and its relationship to formalist and pragmatic modes of
constitutional reasoning, as well as existing defences and criticisms of this approach in
the Australian constitutional literature. Part II offers an exploration of the functional
aspect to the Court’s existing Kable jurisprudence and, in particular, how a functionalist
approach of this kind may help make sense of the Court’s approach to the American
notion of ‘cloaking’ in this context. Part III explores the relevance of functionalist ideas
to the interpretation and application of express and implied rights guarantees, and how
such an approach might offer a more critical perspective on the Court’s approach in
these areas. Part IV develops the idea of functionalist reasoning in the context of
constitutional federalism disputes. Part V offers a brief conclusion.
II FUNCTIONALISM, FORMALISM AND THEIR LEGAL RELATIVES
A Formalism v Functionalism
The idea of ‘formalism’ is one broadly familiar to Australian constitutional lawyers: it
suggests a strong, if not exclusive, emphasis on formal legal materials, such as the text
of the Constitution, prior court decisions, and formal sources relating to the aims and
understanding of the framers of the Constitution, or other aspects of our constitutional
history. 10 Some versions of formalism would also permit...

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