LIKE BANQUO'S GHOST
The centenary of the coming into force of the Australian Constitution was celebrated on a sunny day in Sydney on 1 January 2001. The Governor-General (Sir William Deane) was there in Centennial Park, Sydney, as had been his predecessor (Lord Hopetoun) who arrived at the same pavilion to claim his office exactly a century before. The political leaders of Australia were present, together with military and naval detachments. A procession that took an hour and a half to pass a given point, ambled its way through Sydney streets to arrive at the park. Politicians and people from every part of the Commonwealth attended. A message from the Queen was read. Speeches were made. The canons fired. Documents were symbolically signed.
Missing from the ceremony were the Justices of the High Court of Australia. Save for the Chief Justice, no one had thought to invite them to the celebration. As a citizen, I watched the parade for a time from a window of the Law Courts building in Sydney. I then returned to work on the contemporary puzzles presented by the Constitution, as my predecessors have done since October 1903. Because the High Court, as the "Federal Supreme Court" of the new Commonwealth1 was not established until 1903, there was no Chief Justice and there were no Justices, as such, present in Centennial Park in 1901. However, in all probability, as founders of the Commonwealth, the first five Justices were invited in other capacities.
Few persons in the Commonwealth, over the century since the bunting, songs and parades of 1901 have had such an influence on the shape and endurance of the Constitution than the forty-two men and one woman who have been privileged to serve on the High Court of Australia. This is not a boast. It is a fact. Forty-three in almost a century is not a great number. I am the fortieth of that number. Perhaps it is constitutionally happy land that does not notice the absence from festivities of such a kind of the persons with the largest daily responsibility for maintaining, defending and applying the document whose centennial survival was being cheered.
Of all the work that the forty-three have performed, elucidating and developing the common law and construing statutes ancient and modern, none has been so important as giving meaning to the Constitution itself. This is the task that calls forth more than technical skills and a ready access to reliable dictionaries. It is a task that obliges those required to respond to have some little knowledge of the nation's constitutional history, and that of Britain that went before and to have a learned acquaintance with the writings of their predecessors, and of scholars, concerning the constitutional text. Almost every word of it has now been weighed and given meaning. The task calls forth realism and a political sense about how the Commonwealth, established by the Constitution, is intended to operate as the political fabric of a united nation occupying a continent. And it demands a vision of the future of the nation and of all of its people living under the rule of law upheld, ultimately, by the Constitution, charter of the indissoluble federal union.
The task of constitutional interpretation is inescapably controversial. This is so because the document is written in an economic style. In some ways, the Australian Constitution presents a misleading image of the federal polity it establishes. Its operation depends substantially on conventions that are observed without question or much thought. Thus the highest political officer of the land, the Prime Minister, is not even mentioned. Yet every lawyer knows how his (and one day her) office is to be filled. Read literally, the Constitution appears to assign to the Governor-General the powers of a dictator. Yet every lawyer knows that he (and one day she) must exercise those powers on the advice of the government that enjoys the confidence of the House of Representatives. On the face of the document it would seem that our Commonwealth is a private fiefdom of the Queen. The reality is quite different. The powers of the monarch, and her representatives, have diminished in the space of a century. The powers accorded to the Federal Parliament have expanded enormously, in harmony with the needs of the only legislature and government of the nation that can play an effective part in the contemporary environment of global economics, international technology and the world's problems. The federal Judicature, once so tiny that it comprised only the three founding Justices of the High Court, has now expanded beyond the imaginings of most of those who wrote the Constitution.
It is because the interpretation of the Constitution's brief text is so important that the way the Justices of the High Court go about that task is absolutely critical. Had they from the start and throughout the past century, adhered strictly to a construction that fixed the text with the meaning intended by those founding gentlemen (and they were all gentlemen) who were at the celebrations in 1901, it is unlikely that there would have been a centenary celebration. Australia would have been plagued by an uninterrupted series of constitutional crises. It would have been beset by an endless succession of severe practical problems. A hint of what might have been was given by the recent invalidation of key provisions of the nation's Corporations Law dealing with the cross-vesting of State jurisdiction to federal courts2.
Instead, for nearly a century, the High Court of Australia has construed the Constitution with practical wisdom and, ordinarily, so that its words are turned to the service of the Australian people in order to meet (as far as the text permits) their contemporary governmental needs.
ANDREW INGLIS CLARK AND INTERPRETATION
I like Andrew Inglis Clark. Although a century now separates us, I feel a certain empathy with him. The document that I spend so many of my waking hours studying, thinking about and applying, is in a very large respect an emanation of his creative mind. In Theophanousv Herald and Weekly Times Limited3, Justice Deane described Clark as the "primary architect of our Constitution"4. Even those who would contest this accolade, and give the laurels to another (Barton, Deakin, Griffith or perhaps someone else), would acknowledge the tremendous importance of AI Clark's work at the Australasian Federal Convention held in Sydney in 1891. He was chairman of the Judiciary Committee of that Convention. He served with Samuel Griffith of Queensland and Charles Kingston of South Australia, as a member of the first drafting committee.
Apart from his vital contributions as one "present at the creation"5, Clark wrote his influential text Studies in Australian Constitutional Law6 ("Studies") at a time when the Constitution was still in a "pristine condition"7. Like the authors of a competing text, John Quick and Robert Garran, he was therefore able to look at the new Constitution from the point of view of principle, concept, history and theory. His mind was not cluttered as, to some extent, ours inescapably has to be, by judicial authority, academic discourse, intervening political realities, lawyers' submissions, modern comparative law and political theory.
As one writer has put it, the "body of judicially developed constitutional law has now grown so vast and become so integral to our understanding of the Australian Constitution, that it is difficult to imagine thinking and writing about the document without the existence of a stream of decided cases"8. But that is exactly what AI Clark could do. The published references to his work, and especially in more recent years since it reprinting, bear witness to the powerful insights that his mind brought to bear on the constitutional text.
AI Clark brought to his functions, as one of the founders of the Commonwealth, a deep knowledge (which was shared by others participating in the Conventions at that time) of the law and practice of federalism in the United States of America. The influence on his writing and thinking of American jurisprudence and constitutionalism was obvious. Of him, Alfred Deakin wrote that the "United States [was] a country to which in spirit he belonged, whose Constitution he reverenced and whose great men he idolised"9.
A I Clark was enthusiastic in acknowledging, in Studies,the influence which he conceived that American law would, and should, have on Australian constitutional jurisprudence. In the preface to the second edition, he noted with obvious pleasure the adoption by the High Court, in some of its earliest cases, of the fundamental principles propounded by Chief Justice Marshall in the Supreme Court of the United States in the early days of that Court:
"The High Court of Australia, in the cases of D'Emdenv Pedder10 and Deakinv Webb11, have authoritatively declared that the doctrines and principles of federal constitutional law which were enunciated by the Supreme Court of the United States in the case of McCullochv Maryland12, as those which should govern the interpretation of the Constitution of that country, are equally applicable to the interpretation of the Constitution of the Commonwealth of Australia13".
In the United States Supreme Court14, and in other courts similar to the High Court of Australia performing the task of interpreting a written constitution difficult to change, various theories have been propounded by the judges to guide them in performing their function. Obviously enough, stumbling from one case to another with nothing more than intuition, or passing impression, to resolve contested questions of meaning is totally unacceptable. It is unworthy of those who have the high professional responsibility of deciding what a national constitution means.
There are some lawyers who assert that the only safe meaning to be given to the constitutional text is that which is discovered by a rigorous search for the actual intentions that the writers of the document had when they put its words on paper15. To those who hold to this "originalist" theory of construction, in its purest form, any other approach lacks an objective starting point. It will bend and twist the text to the meaning which those with the power to give an authoritative construction, choose to impose upon it. To the "originalists", that is intolerable. It is a power that should be denied by searching for the only safe harbour. In the case of the Australian Constitution, that means ascertaining the meaning which the words of the document were thought to bear in 1900, when it was finally adopted by the Australian people, and given effect by the passage of an Act of the Imperial Parliament.
Other writers, who probably represent the view that has prevailed in the High Court of Australia for most of the century, constitute the "qualified originalists"16. They acknowledge that the meaning of words can change over time. But they insist that the starting point for the search for meaning is the ascertainment of what the words were taken to mean in 1900. Especially in the case of words of technical legal meaning, they demand that "contemporary" constructions should not stray far from this source. To do so is to run the risk of substituting judicial opinions for the mandate of the text, which can only be altered by the electors of the Commonwealth17. Those of this view draw a distinction between the "connotation" of words and their "denotation". They hypothesise, for example, that a word, like "marriage" included in the Constitution18, although undoubtedly in 1900 being confined to the union of a man and woman for life to the exclusion of all others, could today be large enough, in its denotation, to extend the federal lawmaking power to a permanent union of persons, irrespective of their sex19.
But there is a third view. It is the one which A I Clark embraced. It was stated in 1901. It was quoted at length by Justice Deane in his opinion in the Theophanous Case20. It is critical to an understanding of the approach which Justice Deane took to many cases, often in dissent. This is what AI Clark wrote, as cited by Justice Deane:
"The Constitution was not made to serve a temporary and restricted purpose, but was framed and adopted as a permanent and comprehensive code of law, by which the exercise of the governmental powers conferred by it should be regulated as long as the institutions which it created to exercise the powers should exist. But the social conditions and the political exigencies of the succeeding generations of every civilised and progressive community will inevitably produce new governmental problems to which the language of the Constitution must be applied, and hence it must be read and construed, not as containing a declaration of the will and intentions of men long since dead, and who cannot have anticipated the problems that would arise for solution by future generations, but as declaring the will and intentions of the present inheritors and successors of sovereign power, who maintain the Constitution and have the power to alter it, and who are in the immediate presence of the problems to be solved. It is they who enforce the provisions of the Constitution and make a living force of that which would otherwise be a silent and lifeless document".
So long as the Australian Constitution was viewed as no more, in effect, than a schedule to an Act of the United Kingdom Parliament which first brought it into force, it was probably natural that the Justices of the High Court should approach its construction in the way in which judges of the United Kingdom interpreted the Acts of their own Parliament. That approach laid great emphasis on the meaning of the words under the microscope. It tended to discourage the consideration of history and philosophy, to exclude contemporaneous sources and to disdain speculation on such matters as political and governmental theory. So long as the decisions of the High Court of Australia, including some on constitutional questions well into the 1970s, were capable of being taken on appeal to the Privy Council in London21, it was inevitable that many of the Justices of the High Court should be influenced by the approach to interpretation of a statute observed by the English judiciary, operating in a wholly different constitutional setting.
Yet, in the space of the twentieth century, many leading Australian judges came to accept, wholly or in part, the approach to the nation's Constitution which AI Clark had urged, viewing that document as a "living force". In Bonserv La Macchia22, Justice Windeyer, one of the greatest of the forty-three, demanded that realism enter the function of constitutional interpretation:
"The Commonwealth of Australia has, I consider, now succeeded to the Imperial rights and interests ... That is because Australia has grown into nationhood. With the march of history the Australian colonies are now the Australian nation. The words of the Constitution must be read with that in mind and to meet, as they arise, the national needs of the 'one indissoluble Federal Commonwealth' under the Crown. The law has followed the facts. ... The Commonwealth has become, by international recognition, a sovereign nation, competent to exercise rights that by the law of nations are appurtenant to, or attributes of, sovereignty".
It will be observed that AI Clark's theory of constitutional interpretation is founded, at its base, in his conception that the people of Australia are the fundamental source of the legitimacy of all legal power, including that deployed by the Constitution. It cannot be said too strongly that this was an heretical view in 1901, when it was propounded. At that time, and for long after, the fundamental basis for the Australian Constitution was viewed by most Australian judges and lawyers as the fact that it had been enacted into law with the authority of the Imperial Parliament. That was a legislature with world-wide powers of lawmaking, whose writ was effective throughout the British Empire.
Possibly because of his admiration for American ideas, or perhaps because of his (probably connected) republican instincts, AI Clark challenged this theory of the Australian legal Grundnorm23. He did so explicitly in the passage from his text which I have cited. Clark's challenge was not based on arguments of political theory or republican conviction. Instead, he founded his thesis, as a lawyer should, on the text of the document that he had before him. If the only people who could alter the text of that document were "the electors" of the Commonwealth, whose vote at referendum was needed for that purpose, in addition to that of the national Parliament, it was the "authentic expression of the will of the people"24, comprising those electors, that represented the true and ultimate legal basis of the authority of the Constitution.
In 1983, Justice Murphy, like AI Clark ahead of his time, embraced this idea. He did so long before others did. Writing in the Tasmanian Dams Case Lionel Murphy observed25:
"The federal judiciary will at all times be guided by the fundamental rule, the constant observance of which is the foundation of public confidence in its decisions affecting its own position of the Constitution, and which requires that the validity of any apparent exercise of legislative authority which has been promulgated in proper form is always to be presumed until the alleged law is clearly demonstrated to be in excess of the contents of the legislative power conferred by the Constitution, and if at any time the question is a doubtful one, the decision must be in favour of the validity of the impugned law".26
Some might consider this approach to constitutional interpretation controversial, at least where it conflicts with other rules. One such other rule is that which defends the liberties of the individual from legal restriction without clear words and (in an Australian constitutional text) clear constitutional authority27. But in so far as AI Clark and LK Murphy were stating the proposition that it is a serious thing to invalidate laws on constitutional grounds, that it commonly causes a great deal of disruption and inconvenience (and not a little injustice to individual parties) and should be minimised to the full extent that techniques of severance and alternative construction allow, their words find reflection in many decisions of the High Court of Australia over the century past. Recently, in Residual Assco Group Limitedv Spalvins28 the High Court said:
"Courts in a federation should approach issues of statutory construction on the basis that it is a fundamental rule of construction that the legislatures of the federation intend to enact legislation that is valid and not legislation that is invalid".
In Suev Hill29, the High Court was faced with the kind of problem that called forth an approach to interpretation of the Constitution for which Clark's "living force" theory was highly pertinent. A candidate had been elected to the Australian Senate who was a citizen of the United Kingdom. Section 44(i) of the Constitution provided that any person who is "a subject or citizen ... of a foreign power ... shall be incapable of being chosen or of sitting as a Senator". At the time of the adoption of the Australian Constitution in 1900, there can be little doubt that a subject of the Crown (an expression used in s117 of the Constitution) would not have been regarded as a "citizen of a foreign power". If a 1900 criterion were applied strictly to the constitutional text, there would be no invalidating allegiance. In such a case, a subject of the British Crown could certainly serve in the Australian Senate. Indeed all who did so serve in 1901 were British subjects.
Because the approach which I took to another aspect of the case, it became unnecessary for me to resolve the controversy that I have mentioned. However, a majority of the Court held that a person who was a citizen of the United Kingdom was "a citizen of a foreign power"30. AI Clark's text was mentioned by the majority in a footnote to their reasons31. It was pointed out32 that the theory that accepts an ambulatory construction of the constitutional language was not invented by Justice Windeyer (or, by inference, even by AI Clark). It had been propounded as early as 1816 in the United States by Justice Story when he said of the United States Constitution33:
"The instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence".
Every now and again, in the reasons of today's High Court Justices, there are differences about the meaning of the Constitution. Naturally enough, these sometimes reflect differences concerning the proper approach to its construction. Occasionally, such differences represent alternative views concerning the extent to which the Court should be concerned with, and feel itself influenced by, the thinking and expectations of the founders, or of judges and lawyers or others, in 1900 or the decade earlier during which the Australian Constitution gradually emerged.
This debate is an ongoing one34. Instances of it can be found in a number of recent decisions35. In my reasoning, I have left no doubt as to where I stand. I stand with AI Clark, Windeyer, Murphy and Deane. I stand with the proposition that the Australian Constitution is a living document whose meaning must necessarily vary with the ages and be ascertained, from time to time, by those who are trusted by the Constitution itself with its authoritative exposition.
My stance is not that of a reluctant originalist, or of an originalist at all. People can agree and disagree; that is their privilege. But over a series of cases I have attempted to expound a single approach which rejects originalism, pure or reluctant, and embraces as the true doctrine the authentic approach to the task which AI Clark expressed in 190136:
"In my respectful opinion, it is to misconceive the role of this Court in constitutional elaboration to regard its function as being that of divining the meaning of the language of the text in 1900, whether as understood by the founders, the British Parliament, or ordinary Australians of that time.
That a different approach would be necessary for the construction of the Constitution was recognised as early as 1901 by one of the founders, Andrew Inglis Clark. He declared, at the outset of the new Commonwealth ... the 'living force' of the Constitution which otherwise would be a 'silent and lifeless document'. Words in a constitutional setting inevitably take colour from the social circumstances in which they must be understood and applied. ... In my opinion, the Constitution is to be read according to contemporary understandings of its meanings to meet, as far as the text allows, the governmental needs of the Australian people".
In another case, I suggested that it was "fundamentally erroneous" to approach the construction of the Constitution "as if the task of the Court were to give effect to the opinions, expectations, beliefs and hopes of the founders of the Commonwealth"37:
"Once adopted, the Constitution assumed a function as the fundamental law of a federal nation: one amongst the community of nations. The text was then set free from the 'intentions' of its draftsmen. It must be construed by contemporary Australians. Necessarily, they read its language with the eyes of their generation expecting it to fulfil (so far as the words and structure permit) the rapidly changing needs of the times. Occasionally it will be held that the language or structure of the Constitution do not permit it to meet those perceived needs. But for nearly a century the Constitution has met the requirements of government in Australia by reason, in part, of a willingness of this Court to avoid unnecessarily narrow or rigid interpretations".
The description of the proper approach to interpretation of the Constitution, written by AI Clark a century ago, therefore continues to influence my reasoning and my conclusions- as it has other Justices who went before and as (I am sure) it will influence an increasing number of those who come after. As the years and decades pass, any other approach to the interpretation of the Constitution will seem unthinkable. Its formal rigidities have only survived a century of change because of the capacity and willingness of the Justices (whatever techniques they may have used and views they may have propounded about the theory of interpretation) to view the Constitution as a "living force". It is difficult to overstate the significance of AI Clark's opinion in this respect. Since his "rediscovery"38 by Justices Murphy and Deane, his influence has expanded. Rightly, it will continue to do so. JM Williams has noted the irony inherent in the twists of legal reasoning by which the words of a man "long since dead" have now been unveiled to us to endorse the interpretation of the Constitution as a "living force" for the people of the present Australia39.
THE CONSTITUTIONAL SEPARATION OF POWERS
A I Clark was a strong proponent of the need to ensure the absolute independence of the Judicature established by the Constitution, free from the influence and pressure of the other branches of government. In this too, he was greatly affected by the jurisprudence concerning Article III of the United States Constitution. In his text, he warned40:
"[A]ny attempt on the part of the Parliament or the Crown to exercise functions which are essentially and distinctly judicial must be invalid as any attempt to legislate upon a matter clearly outside the legislative power conferred on the Parliament by the Constitution".
In 1956, in the Boilermakers' Case41, Chief Justice Dixon and Justices McTiernan, Fullagar and Kitto embraced this reasoning. Striking down the attempted mixture of what they found, in the Commonwealth Court of Conciliation and Arbitration, to be the conjoined judicial and legislative powers of the Commonwealth, they asserted that such a combination was impossible. It was "hardly consistent with the form and contents of ChapsI, II and III to assign no legal consequence to the division"42. In support of their proposition those judges invoked the "contemporary view" of one who, they said, was "entitled to speak with authority"43, namely AIClark. After exploring at length paragraphs from Clark's text and also William Harrison Moore's The Constitution of the Commonwealth of Australia,they concluded that ChIII of the Constitution confirmed the inference that:
"Courts established by or under its provisions have for their exclusive purpose the performance of judicial functions and that it is not within the legislative power to impose or confer upon them duties or authorities of another order"44.
In recent years, the High Court of Australia has been insistent on defending not only the federal Judicature45 and its personnel46 but also State courts47 from attempted incursions upon their judicial functions and essential independence. In Polyukhovichv The Commonwealth48, a case concerning federal legislation about war crimes, Justice Deane cited AI Clark's view that the adoption of the doctrine of separation of the judicial from legislative and executive powers in the Constitution, necessarily imposed significant limitations on the powers of the Federal Parliament49. He pointed to a paragraph from Clark's text, opposite the marginal note "The distribution of governmental powers implies a limitation on the power of Parliament". At that point, AI Clark confirmed, as applicable to Australian constitutional law, the "underlying principle of the decisions of the American courts" that "to declare what the law is or has been is a judicial power; to declare what the law shall be is legislative"50. Justice Deane concluded that "Inglis Clark's apparent acceptance of the 'underlying principle' referred to in the last sentence as applicable to our Constitution, would preclude the enactment of an ex post facto criminal law"51.
In Polyukhovich Justice Deane was in dissent. But one of the majority, Justice McHugh, also called on AI Clark's ideas to support his propositions52. Each Justice acknowledged the strong and persuasive force of AI Clark's reasoning about the separation of powers doctrine. Whilst different conclusions were drawn by them in the particular case, each accepted the correctness of the basic thesis. Especially since the Boilermakers' Case in 1956, it is a thesis that has influenced the shape of the Judicature of the Australian Commonwealth. At its core is the central idea that, to be fully independent, the judiciary and its members must be separate from, and kept free of the influence and pressure of, the political branches of government, federal, Territory and State.
A COMMON LAW OF AUSTRALIA?
In the early years of the Commonwealth, there was much speculation upon another matter which had engaged commentators in the United States. This was whether there existed a "federal common law". In his text, AI Clark had written that "except in relation to the executive powers of the Crown, it is submitted that there cannot be any federal common law in Australia and that the federal courts of the Commonwealth will not possess any jurisdiction under the common law"53.
In his opinion in Lipoharv The Queen54, Justice Callinan cited AI Clark's view to cast doubt on the proposition, now commonly accepted, that there is a single common law of Australia, uniform throughout the nation. In particular, Justice Callinan cited a passage from AI Clark's work where he stated that: "In cases arising solely under the laws of a State ... the High Court, in the exercise of that appellate jurisdiction, will apply the rules and doctrines of the common law. Its relation to the common law will not be any different from the relation of the House of Lords to the civil law"55. In this respect, Justice Callinan favoured the opinion of AI Clark over that of Quick and Garran56.
In the United States, the view propounded by AI Clark has prevailed. The Supreme Court of that country in Erie Railroad Cov Tompkins57 overturned the decision with which AI Clark would have been familiar, Swiftv Tyson58. In Erie, Justice Brandeis declared that in the United States "[t]here is no federal common law"59.
There is an important distinction between the constitutional arrangements of the United States and Australia which AI Clark may have underestimated. It is a difference which explains the Australian embrace of a notion that there is but one common law applicable throughout the nation. The point of difference is that, in Australia, the High Court is (now) the sole, ultimate judicial body that declares the common law to be observed throughout Australia. The Supreme Court of the United States does not enjoy that function or power. In Australia, under the Constitution, there can, ultimately be no differences between State expositions of the common law. Although temporary divergencies of opinion about its content may arise from time to time, the position and authority of the High Court is there to remove disparities and to declare the single true common law doctrine60.
On various other opinions which he expressed, AI Clark's views have not always found favour. He was, for example, a strong adherent to the doctrine of implied immunities, protective of the constitutional rights of the States. This was a doctrine accepted in the early decisions of the High Court, as in D'emdenv Pedder61. It was, however, "exploded" in 1920 by the decision in the Engineers' Case62, when the centralising doctrine of Justice Isaacs' views gained paramountcy.
Similarly, in his text, AI Clark envisaged a great future for the Interstate Commission provided for in s101 of the Constitution. Nowadays, this only appears of historical significance. Apart from a brief revival in 1983, the Commission has, effectively, been defunct since 192063. On the other hand, some recent popular writing has described the large extension of the powers of the Federal Parliament that followed the 1920 decision in the Engineers' Case as "long coup d'état" of the High Court64. The author of that provocative view has even suggested revival reconsideration of the Interstate Commission as an antidote. It is possible, but not likely, that AI Clark's views on these subjects will one day, again, prove influential.
A I Clark's opinions on the constitutionality of the Crown appointing Royal Commissions to investigate whether an individual offence has occurred65 was relied upon by Justice Stephen in Victoriav Australian Building Construction Employees' and Builders Labourers' Federation66 to support the proposition that there had been a "succession of commissions to enquire into the circumstances attending alleged or supposed crimes ... appointed in England under the immediate advice and approval of some of the most eminent Lord Chancellors and judges who have sat upon the Bench in that country"67. However, that view must now be read as subject to later decisions of the High Court defensive of the independence and authority of the Judicature. The latter is a view which itself has grown from a central thesis of AI Clark's concept of the independent Judicature of courts throughout the Commonwealth.
Scattered throughout the pages of the Commonwealth Law Reports are numerous tributes to, and acknowledgments of, AI Clark68. In some respects, he was prophetic, seeing the future in a way that could not reasonably have been anticipated in 1891 when he wrote his first draft of the constitutional text. His conception of the "sovereignty of the people" of Australia is obviously one such instance. So is his prediction that the High Court of Australia would, and should, be the sole ultimate court of appeal of the Australian judicial system. Of this he said:
"The larger experience in the constitutional law of the Australian Commonwealth will be obtained by Australian lawyers, and the experts and masters in it will be found among them"69.
Accurately, AI Clark foresaw the gradual process of Australian independence from the British judiciary in the Privy Council. This was to be accomplished over time by a succession of federal Acts, culminating in the Australia Act 1986 (Cth) which finally, with its counterparts, ended appeals to the Privy Council70. It was for this and other reasons that AI Clark was described by Chief Justice Brennan as a "man ahead of his time"71. That he surely was.
Over the years, the influence of AI Clark's writing, on the work of the High Court of Australia has waxed and waned. But now, I believe, it is a force to be reckoned with. Increasingly, we will look back to his fresh thinking and perceptive insights. He never took a seat on the High Court Bench. He was appointed to judicial office in the Supreme Court of Tasmania, his home State. It has been said that his name was considered for the High Court and that, but for fate, he might have been one of the forty-three. Certainly, he is one of the lesser known founders whose work towards the birth of our Commonwealth is not fully appreciated.
Quite possibly, AI Clark was not invited to the inauguration in 1901 of the Constitution to which he had contributed so much. I can find no record that he was in the Centennial Park, Sydney on that important day. Yet, in the big picture of our Federation, that matters not. Many who were there are entirely forgotten. But Clark's was a pen that crafted the first draft of the Constitution. His was one of the minds that influenced its ultimate shape. His was one of the most influential of the intellects that explained the new document, identified its leading themes and predicted its chief directions. In constitutional law, more than most, it is those who keep their eye on the great themes and see across the horizon that have a lasting influence.
The law requires that its practitioners, especially its judges, live with history. Constitutional law requires of those who are engaged in it that they live with the product of the labours of those who wrote the document and all the elaborations of its text that followed. Although the task of those who interpret the document, long after, is not, as such, to get into the heads of the drafters and to find what they intended, it is inevitable that their handiwork and thinking should reflect something of the values, aspirations and priorities of those who chose the words. This is why, in the centenary year of federation, Australians are reflecting as never before on the framers of the Constitution. Andrew Inglis Clark is by no means one of the most famous of these. Yet his life is interesting. His values are remarkably enduring. And his influence is increasingly strong72.
* Justice of the High Court of Australia. The author acknowledges the assistance he received in the preparation of this essay from MrTim Gordon, Senior Research Officer to the Justices of the High Court.
1 Australian Constitution, s71.
2 Re Wakim; Ex parte McNally (1999) 198 CLR 511 ("Re Wakim"); cf Gouldv Brown (1998) 193 CLR 346. See also Byrnesv The Queen (1999) 73 ALJR 1291; 164 ALR 520; Bondv The Queen (2000) 74 ALJR 597; 169 ALR 607; Rv Hughes (2000) 74 ALJR 802; 171 ALR 155; Residual Assco Group Ltdv Spalvins (2000) 74 ALJR 1013; 173 ALR 366; Australia Securities and Investments Commissionv Edensor Nominees Pty Ltd  HCA 1.
3 (1994) 182 CLR 102.
4 (1994) 182 CLR 102 at 172.
5 This expression is attributed to King Alfonzo of Castile who thought he could have given God some hints on the ordering of the universe, if he had been present at the Creation.
6 A Inglis Clark, Studies in Australian Constitutional Law (Legal Books, Sydney, 1997) (reprint of first edition 1901) ("Studies").
7 J MWilliams, "Introduction to the 1997 Reprint" in Studies at vii.
8 FWheeler, "Framing an Australian Constitutional Law" (1997) 3 Australian Journal of Legal History 237 at 238.
9 J MWilliams, Introduction to Studies at v, quoting from ADeakin, The Federal Story (1944) at 30.
10 (1904) 1 CLR 91.
11 (1904) 1 CLR 585.
12 4 Wheat. (17 US) 316 (1819).
13 Studies (2nd ed, 1905).
14 See M D Kirby, "Ancestor Worship?" (2000) 24 Melbourne University Law Review 1.
15 A good illustration is Dred Scottv Sandford 19 How (60 US) 393 at 407-409 (1857), a decision which rejected 7:2 the challenge to the lawfulness under United States' law of Scott's status as a slave.
16 This is the opinion of McHughJ. See Re Wakim (1999) 198 CLR 511 at 551 .
17 Pursuant to s128 of the Constitution.
18 Australian Constitution, s51(xxi).
19 This was suggested by McHughJ: Re Wakim (1999) 198 CLR 511 at 553 .
20 (1994) 182 CLR 104 at 171-172 citing Studies, pp 21-22.
21 The only constitutional questions which were excluded from the jurisdiction of the Privy Council were "inter se" questions: Australian Constitution, s74. Even then, the High Court could certify that a party might appeal to the Privy Council. Such a certificate was only given once: Colonial Sugar Refining Co Ltdv Attorney-General (1912) 15 CLR 182. Thereafter, it was refused many times.
22 (1969) 122 CLR 177 at 223-224. See also Rv Commonwealth Conciliation and Arbitration Commission; Ex parte Professional Engineers' Association (1959) 107 CLR 208 at 267; Victoriav The Commonwealth (the Payroll Tax Case) (1971) 122 CLR 353 at 396-397.
23 M D Kirby, "Deakin: Popular Sovereignty and the True Foundation of the Australian Constitution" (1996) 3 Deakin Law Review 129.
24 Studies (1901) at 33.
25 The Commonwealthv Tasmania (1983) 158 CLR 1 at 161.
26 A I Clark, Studies (1901) at 33; cf University of Wollongongv Metwally (1984) 158 CLR 447 at 476-477; Nationwide News Pty Ltdv Wills (1992) 177 CLR 1 at 72; Australian Capital Television Pty Ltdv The Commonwealth (1992) 177 CLR 106 at 137.
27 Kartinyeriv The Commonwealth (1998) 195 CLR 337 at 417-419 -.
28 (2000) 74 ALJR 1013 at 1020 ; 173 ALR 366 at 374.
29 (1999) 199 CLR 463.
30 Per GleesonCJ, Gaudron, Gummow and HayneJJ.
31 (1999) 199 CLR 462 at 488, fn82.
32 Baxterv Commissioner of Taxation (NSW) (1907) 4 CLR 1087 at 1105 per Griffith CJ.
33 Martinv Hunter's Lessee (1816) 1 Wheat. 304 at 326 (14 US 141 at 155).
34 M D Kirby, "Constitutional Interpretation and Original Intent: A Form of Ancestor Worship " (2000) 24 Melbourne University Law Review 1.
35 Re Wakim (1999) 198 CLR 511 at 599-600 -; Grain Pool (WA)v The Commonwealth (2000) 74 ALJR 648 at 669 -; Eastmanv The Queen (2000) 74 ALJR 915 at 958 -; 172 ALR 39 at 96-99 -; Re Colina; Ex parte Torney (1999) 73 ALJR 1576 at 1597 ; 166 ALR 545 at 574; Abebev The Commonwealth (1999) 197 CLR 510 at 581 ; Kartinyeriv The Commonwealth (1998) 195 CLR 337 at 400-401 ; Cramptonv The Queen  HCA 60 -; Ex parte Aala; Re Refugee Review Tribunal  HCA 57 -.
36 Eastmanv The Queen (2000) 74 ALJR 915 at 958 . Footnotes deleted.
37 Re Colina; Ex parte Torney (2000) 73 ALJR 1576 at 1597 . Footnotes deleted.
38 F Wheeler, "Framing an Australian Constitutional Law" (1997) 3 Australian Journal of Legal History 237 at 247.
39 J M Williams, "With Eyes Open: Andrew Inglis Clark and our Republican Tradition" (1995) 23 Federal Law Review 149 at 179.
40 A I Clark, Studies (1901) at 37.
41 (1956) 94 CLR 254 at 276.
42 The Queenv Kirby ; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254.
43 (1956) 94 CLR 254 at 276.
44 (1956) 94 CLR 254 at 278.
45 The decision Re Wakim (above) is justified by this reasoning.
46 Wilsonv Minister for Aboriginal and Torres Strait Islander Affairs (1997) 189 CLR 1.
47 Kablev Director of Public Prosecutions (NSW) (1997) 189 CLR 51.
48 (1991) 172 CLR 501.
49 (1991) 172 CLR 501 at 618-619.
50 A I Clark, Studies (1901) at 40-41 citing Dashv Van Kleek 7 Johns 477.
51 Polyhukovich (1991) 172 CLR 501 at 619.
52 See (1991) 172 CLR 501 at 720-721 per McHughJ.
53 A I Clark, Studies (1901) at 192.
54 (1999) 74 ALJR 282 at 332; 168 ALR 8 at 77 .
55 A I Clark, Studies (1901) at 192.
56 (1999) 74 ALJR 282 at 332; 168 ALR 8 at 77 .
57 304 US 64 (1938).
58 41 US 1 (1842).
59 304 US 64 (1938) at 78.
60 John Pfeiffer Pty Ltdv Rogerson (2000) 74 ALJR 1109 at 1112, 1132 -, ; 172 ALR 625 at 630.
61 (1904) 1 CLR 91.
62 Amalgamated Society of Engineersv Adelaide Steamship Company Ltd (1920) 28 CLR 129.
63 J M Williams, "Introduction to the 1997 Reprint" in A I Clark, Studies at xx-xxiii.
64 P McGuinness, "Federation- One Hundred Years and More", Quadrant, July 2001, 2.
65 A I Clark, Studies (1901) at 241. See (1982) 152 CLR 25 at 69.
66 (1982) 152 CLR 25.
67 A I Clark, Studies (1901) at 241.
68 See eg Bank of New South Walesv The Commonwealth (1948) 76 CLR 1 at 366 per DixonJ; McGintyv Western Australia (1996) 186 CLR 140 at 274 per GummowJ and Brevingtonv Godelman (1987) 169 CLR 41 at 133 per DeaneJ. See also Suev Hill (1999) 199 CLR 462 at 497-498 .
69 A I Clark, Studies (1901) at 241.
70 See also Privy Council (Limitation of Appeals) Act 1968 (Cth); Privy Council (Appeals from the High Court) Act 1975 (Cth).
71 F G Brennan, Foreword to Hayward and Warden (eds), An Australian Democrat: The Life, Work and Consequences of Andrew Inglis Clark (1995) at ix.
72 For other recent writings on AI Clark, see John Williams, "Andrew Inglis Clark: The Republican of Tasmania" In D Headon and JWilliams, Makers of Miracles - The Cast of the Federation Story, MUP, 2000 at 44; and REly, "Andrew Inglis Clark on the Preamble of the Australian Constitution" (2001) 75 ALJ 36.