NORTH AMERICAN INTERLUDE DOWN UNDER

    I want to pose some questions to open this lecture with a little provocation. Do United States judges, unlike their Australian counterparts, when ascertaining the meaning of their Constitution, engage in a quaint ritual of ancestor worship? Are our American colleagues so mesmerised by the awe in which they hold the revolutionary founders of the republic who wrote their Constitution (Jefferson, Madison, Hamilton etc) that they feel obliged to construe the text, 220 years on, by ascertaining the intentions of those great men at the time they wrote it, however inapt those intentions might be to contemporary circumstances? In brief, when a problem arises under their Constitution, is the judicial duty to consult the historical records to find the original intentions of the founders? Is the task "rather like having a remote ancestor who came over on the Mayflower"² , (akin in our case, perhaps to the Sirius ), and asking him or her the meaning of a political document that governs the affairs of the nation in the space age? Are there any risks that this quaint American ritual will travel to the Antipodes and capture the imagination of Australia's judges in the task of interpreting the Australian Constitution?

    These were some of the controversies about constitutional interpretation which were debated recently in Auckland, New Zealand at a conference on constitutionalism. Justice Scalia of the Supreme Court of the United States and Justice Binney of the Supreme Court of Canada gave different answers. The former is probably the "most eloquent expositor"³ of the modern theory of originalism. He believes that, of its nature, a written Constitution has a fixed meaning which does not change with time and that such meaning is the same as the words signified when the Constitution was first adopted. Justice Binney, recently appointed to the Supreme Court of Canada, was called upon to answer the criticisms implicitly directed by his United States colleague to the process of elaboration of the Canadian Constitution and its Charter of Fundamental Rights and Freedoms. It was in the context of defending the Canadian approach to that task, that Justice Binney let slip the opinion (which he suggested was held by some Canadian judges) that the approach of their counterparts in the United States could only be explained by appreciating that Americans were engaged in a ritual of ancestor worship.

    The Constitutions of the United States of America and (1776-1790); Canada (1867); and Australia (1901) are amongst the three most enduring of such documents in the world today. But what do they mean? The question of constitutional interpretation arises at the very threshold of every case in which the constitutional text must be elucidated. The text of the Australian Constitution - like that of the United States and Canada - is written in language which is brief, sometimes obscure and often ambiguous. As recent shifts in the Court's elaboration of the meaning of the Constitution demonstrate⁴ , even an assertion that a particular construction of the text is "settled" by many past decisions does not necessarily bolt the door against re-examination of the Constitution if new scrutiny is considered necessary by the majority of the Justices of the High Court. This is why the approach to construction of the Constitution arises at the threshold of all the great constitutional disputes. It is one which has fascinated the Justices themselves⁵ . It has attracted a great deal of writing by scholars, both in Australia⁶ and overseas⁷ . It ought to concern all practitioners and students of the law in a federation, like Australia, with a written constitution adopted long ago. Citizens should know about it.

SOME RECENT CASES AND THEIR SIGNIFICANCE

OPPOSING OPINIONS ON ORIGINAL INTENT

    Justice Scalia continued¹⁹ :
 

    Justice Binney, for his part, appealed to developing notions about construing statutes generally so as to achieve and not frustrate their purposes; to the need for the courts to respond to cases before them which raise novel problems; to the frequent failures of the other branches of government to do so; and to the strongly supportive opinion of the Canadian people, as disclosed in successive opinion polls, concerning the work of the Supreme Court in the elaboration of the Canadian Constitution and Charter of Rights. In his paper, Justice Binney called in aid of his opinions the views expressed by another distinguished North American jurist, Chief Judge Richard Posner of the United States Court of Appeals in Chicago²⁰ :
 

    So there one has the competing views. The one that a Constitution is anti-evolutionary. The other that it must be evolutionary.
The one that it is necessary to anchor a constitutional text and its meaning in the ascertainable fact of the intentions of the drafters in an earlier century. The other, that this is a primitive form of ancestor worship inappropriate to constitutional interpretation in a modern state. The one believing that legitimacy can be found, and found only, in legal history. The other believing that the Constitution is a living tree which continues to grow and to provide shelter in new circumstances to the people living under its protection. We have had similar debates in Australia.

    It is an honour for me to be invited to deliver a second lecture which celebrates the work of Sir Anthony Mason, past Justice and Chief Justice of the High Court of Australia. My earlier lecture in this series has been published²¹ . It was delivered soon after my appointment to the High Court. Now, nearly three years later I return. The interval has made me even more respectful of, and grateful to, Sir Anthony Mason for his work in and out of the High Court as a modern Chief Justice, in a changing country, in a dynamic world.

MASON AND CONSTITUTIONAL INTERPRETATION

    As might be expected, both in his judicial decisions and in his extra-curial writing, Sir Anthony Mason has addressed the issue of interpretation of the Constitution many times. Most recently he did so in an essay on "The Interpretation of the Constitution in a Modern Liberal Democracy"²² . In that essay Sir Anthony classified various approaches to the interpretation of the Constitution: "originalism"²³ ; "intentionalism"²⁴ (a variant of originalism); "literalism"²⁵ ; "progressivism" or "flexible interpretation", the last as favoured by Chief Judge Posner²⁶ ; and various combinations of the others. Sir Anthony Mason does not expressly align himself with any of the doctrines. Perhaps at different times of his  long judicial career, he has invoked different theories and applied different principles. But after recounting the opinions of leading United States and Australian scholars, he makes it fairly clear that the Australian High Court has, for a long time, turned its back upon originalism and pure intentionalism.

    No clearer illustration of this fact could be found than in the 1935 decision that the federal Parliament's legislative power in s 51(v) of the Constitution with respect to "postal, telegraphic, telephonic and other like services" extended to radio (later television) broadcasting - services which did not exist (and were not even known to) the framers of the Constitution in the 1890s²⁷ . Yet, Sir Anthony Mason points to various inconsistencies in the opinions of even the greatest judges of the High Court on this score. Thus he contrasts the reasoning of the Engineers' Case , with its embrace of literalism and the willingness of many of the judges who accepted that rule to hold that implications could nonetheless be found for the importation of rights and obligations restrictive of a granted legislative power and not stated in the text of the Constitution because based on the structure of the document or upon inferences derived from its language and purpose.

    Sir Anthony Mason concludes his survey of this subject with an emphasis which was certainly not present twenty or thirty years ago. He refers to the foundation of the Australian Constitution as resting in the sovereign rights of the people of Australia²⁸ . Twenty or thirty years ago, especially in legal circles, the ultimate foundation of the legitimacy and binding force of the Australian Constitution was given, virtually without dissent, as the Act of the Imperial Parliament at Westminster. That Parliament had enacted the Constitution. Its power therefore gave rise to the legal quality of the norms which it established. Nowadays, a different foundation for the Constitution must be found - one consistent with its origins, history, function and method of amendment. But that very fact illustrates, quite vividly, the evolutionary character of the Constitution - a fact which must affect approaches to the ascertainment of its meaning.

    Sir Anthony Mason ends his essay on this subject by expressing the view that a constitutional court, such as the High Court of Australia, must interpret the constitutional charter in a way that will "reinforce and enhance the concept of a modern liberal democracy"²⁹ . However he cautions³⁰ :
 

    There is no task performed by a Justice of the High Court which is more important than the task of interpreting the Australian Constitution. Each judge - and indeed every lawyer - who has ever embarked upon that task is obliged to do more than to stumble about looking for a solution to the particular case. Intuition and instinct about such matters are not enough. Sitting at a desk with the Constitution in one hand and a dictionary in the other, is also not enough. Following blindly judicial opinions written in earlier and very different times may not be enough, as Sue v Hill³¹ demonstrates. That is why it is vital that each judge (indeed each reader of the Constitution) should have a theory of constitutional interpretation. Only such a theory will afford a consistent guide to a consistent approach to be taken to the task. In the absence of a theory, inconsistency will proliferate. The judge will be castigated, perhaps correctly, for saying incompatible things at different times and construing the same words at different times in incompatible ways. Guided by Sir Anthony Mason's introduction to this topic, I want to add a few words as to why history and original intent provide poor guides for the task and why it is incumbent on us to construe the Australian Constitution as a living document so that (as far as its words and structure permit) it serves effectively the governmental needs of contemporary Australians.

HISTORY IN THE HIGH COURT

    To be a lawyer in Australia is, in a sense, to be a type of legal historian. It is an inescapable feature of the common law that judges and other lawyers live their lives in the presence of the great legal spirits of the past and the cases of those people. On our bookshelves, and now in electronic systems, are the tales of ancient conflicts and the attempts, mostly by rational people, to come to principled and just solutions to conflicts. Increasingly, in recent times, the solutions have been offered in the form of legislation. Yet for nearly seven centuries, five of them before modern Australia was founded, cases have been brought to the courts of our legal tradition. Their facts have been written down. The solutions to the problems which they presented have been expounded by judges. Those expositions have been duly recorded. They have been shared with colleagues at the time. They have been sent into the future for its instruction. The power of the judicial reasoning has been passed to new generations for their consideration and use. The principles emerging from a multitude of cases have gone together to make up the great body of the common law. To be a judge in our legal tradition, is thus to be a privileged participant in the making of this form of legal history. The contribution of no one, however brilliant and distinguished, is very great or enduring. Occasionally, a towering figure of the common law stands out only to see his or her reputation wither as history catches up and replaces that reputation with someone or something new.

    The establishment of the High Court of Australia in October 1903 was a critical moment for Australia's legal history. From that event sprang a court which, by steady achievement and a happy mix of creativity and continuity, has won the respect of Australians and of lawyers far away. Of necessity, in the early years, the Justices of the Court looked to the principles which had been fashioned in the courts of England in the previous centuries. To some extent, as they developed their notions of the Australian federal constitution, they looked to the decisions of the United States courts. The idea of federalism was, at that time (and seemingly still is) alien to English lawyers. But gradually, the High Court of Australia developed its own jurisprudence. It came to use the principles expounded by its own Justices. The State courts throughout Australia dutifully followed the principles laid down by the High Court, deferring occasionally to the decisions of the Privy Council which reversed its rulings in questions outside those constitutional matters which were, from the start, reserved to the High Court's final decision³² .

    In the beginning the High Court was extremely cautious about the use of Australian legal history, at least in constitutional interpretation, so far as it arose from the debates at the Constitutional Conventions which, in the 1890s, had fashioned and finally settled the text of the Australian Constitution. In the earliest decisions of the Court, it rejected the idea that the Justices could seek enlightenment as to the meaning of the constitutional text from the contributions made in the debates at the Conventions in which all of the original Justices had themselves taken part³³ . In part, this rejection derived from the then current view that language always had objectively discoverable meanings; that such meanings were to be found by careful study of the text and context; and that most external and historical materials would only be likely to confuse the task of interpretation. But in part, the attitude may also have derived from the sure conviction of the original Justices that they knew exactly what the Constitution meant from their own participation in the Conventions. They remembered. They did not need to be reminded, least of all of the words of other delegates, some of whom they may have held in low regard. It is difficult as we look back on the generally high standard of the debates of the Australasian and Australian Constitutional Conventions of the 1890s to remember that the participants were human beings, much as ourselves: with foibles and vanities and weaknesses only too well known to their contemporaries.

    The rejection of access to the constitutional debates lasted many generations. As recently as the time of Chief Justice Barwick, the self-denying ordinance was reiterated by a decision of the High Court³⁴ . But then in Cole v Whitfield³⁵ , in an unanimous opinion of the entire Court in 1988, led by Chief Justice Mason, the old legal rule was reversed. The books of the Convention debate were read in open court.

    To explain the true purposes of the guarantee in s 92 of the Australian Constitution, that trade, commerce and intercourse amongst the States would be "absolutely free", the Justices in Cole v Whitfield plunged deeply and unrestrainedly into the record of the constitutional debates and into the essays on Australian legal history by which scholars, such as Professor J A LaNauze, had earlier analysed those debates³⁶ . The embargo was broken. Henceforth, the High Court would readily agree to look to the Convention debates to help in the ascertainment of the meaning of the Australian Constitution. An important change in doctrine was thus achieved by adding a new device of legal argumentation and persuasion. Nearly ninety years later, legal history came to the rescue of constitutional interpretation. The study of its materials cast new light. It permitted a new construction of the constitutional text to be adopted. Things would never be the same again. The pretence that constitutional interpretation required nothing but a close and prolonged study of the text of the Constitution was abandoned. But what is to take its place? Is it to be the search in the Convention debates for the subjective intentions of our founders as Justice Scalia urges? Or is our use of those debates to be more limited?

ORIGINAL INTENT OR A TEXT SET FREE ?

    To a superficial student of Australian legal history, it might appear that the abandonment of the prohibition on the use of the debates in the Constitutional Conventions amounted to the acceptance by the Australian High Court of techniques apt to the discovery of the original intentions of the drafters. Certainly, the study of their words in the debates of the 1890s would tend to show what they thought the text which they were adopting, amending or rejecting was supposed to mean. Is this what the ruling in Cole v Whitfield achieved? Does it embrace original intent as the pre-eminent criterion for interpretation of the Constitution? Does it have implications for the construction of other lawmaking documents, such as statutes and subordinate legislation? Is this what the judicial search for meaning is now supposed to come up with whenever an ambiguity arises in a legal text?

    I do not consider that this was the purpose of the use of the constitutional debates which Cole v Whitfield mandates. Nor do I believe it is what the High Court has done since that decision or before. At the dawn of federation in Australia, Andrew Inglis Clark was one of the most influential writers on Australian constitutional law. His constitutional text³⁷ is particularly important because of Clark's leading part in the committee which prepared the original draft of the Australian Constitution. Clark was well familiar with United States legal authority. This gave him an advantage in the Conventions whenever the issues of federalism had to be considered³⁸ . Clark wrote a chapter on the interpretation of written constitutions. This recognised that the task was to be a novel and vital one for Australian lawyers in the new federation.

    Clark outlined a theory of constitutional interpretation which has had an influence from the beginning. It is one which, I believe, is gradually emerging as the one proper to the construction of the Australian Constitution³⁹ :
 

    This doctrine of the Constitution as a "living force" is one which has proved influential over the years with several Justices of the High Court of Australia⁴⁰ . When an old line of authority is overturned, this may sometimes be explained not by reference to an error in the perception of the Justices who propounded that authority at the time of its invention and first applications. But rather by reference to the fact that the eyes of new generations of Australians inevitably see the unchanged language in a different light. The words remain the same. The meaning and content of the words take colour from the circumstances in which the words must be understood and to which they must be applied⁴¹ .

    In a number of recent decisions, I have tried to expound the "living force" view of constitutional interpretation. Thus in Re Wakim; Ex parte McNally⁴² , much of the debate before the Court concerned the meaning and operation of Chapter III of the Constitution dealing with the Judicature. It was drawn up in a time of established colonial (later State) courts and no federal courts. This situation has completely changed in a hundred years. Now the federal courts are strong, well founded and ubiquitous. Fashioning a new relationship between all of the courts of the integrated Judicature established or recognised in the Constitution did not even seem inappropriate. In the course of my reasons⁴³ I stated why I took a view of the construction of the Constitution different from my colleagues:
 

    Although my view did not carry the day in Wakim, it is interesting to compare it with the opinion of the majority who, in Sue v Hill⁴⁸ , expressed a conclusion about the meaning of "subject or citizen of foreign power" in s 44(i) of the Constitution. As I have said, such an idea would not have been in the minds and subjective intentions of the drafters of the clause and the delegates to the Constitutional Conventions. Even at the time of the Engineers' Case⁴⁹ in 1920, the High Court declared that one of the "cardinal" features of the Constitution was the "common sovereignty in all parts of the British Empire" with the United Kingdom at its head. The United Kingdom was thus not then a foreign power in relation to Australia. It was at the very centre of the Empire of which Australia was an important member and Dominion. Yet, a new look, with today's eyes, at the same phrase in s 44(i) of the Australian Constitution has resulted in a construction which is almost certainly the exact opposite of that which would have been perceived by judges and ordinary citizens in the early decades of federation. The text remains exactly the same. But the perception of its meaning has changed dramatically.

    A study of the debates of the Constitutional Conventions could not alter this conclusion. That study might be helpful to stimulate the minds of those who have the responsibility of construing the text. It could be helpful to isolate and present the problem for decision. But the conclusion of the High Court in Sue v Hill is, I believe, a particularly clear instance of the way in which Australian constitutional jurisprudence has freed itself from the doctrine of original intent that still has such an influence on constitutional construction in the United States. This is what the majority said in Sue v Hill⁵⁰ :
 

    So what is now needed in Australia is a consistent theory for the proper approach to the resolution of problems of this kind. The adoption in one case of a criterion of "the intention of the makers as evinced by the terms in which they expressed that intention" and the adoption in another case of something analogous to Clark's "living force" doctrine, may suggest an element of ambivalence about the approach to constitutional interpretation⁵¹ which future cases will need to resolve. In my opinion, a consistent application of the view that the Constitution was set free from its founders in 1901 is the rule that we should apply. That our Constitution belongs to succeeding generations of the Australian people. That it is bound to be read in changing ways as time passes and circumstances change. That it should be read so as to achieve the purposes of good government which the Constitution was designed to promote and secure. The Australian Constitution belongs to the twenty-first century, not to the nineteenth.

Sir Anthony Mason was right to call this question to the notice of everyone concerned in the operation of the Australian Constitution. He continues to call to our attention the key issues for Australian constitutional life, and for the destiny of our nation as an independent state in a world of globalism and regionalism. It is that world, above all, that requires adaptability and imagination in the application of the text of 1901. This is not to defeat the intention of the Constitution and its framers. On the contrary. It is to achieve its high and enduring governmental purposes.

    Sir Anthony Mason showed us the way. It is fitting that his leadership as a judge and scholar should be remembered and celebrated by the students of this Law School. It is important that we who follow, judge and student should learn from Sir Anthony Mason's example, and take strength from his practical creativity in the field of Australian constitutional law.