The Hon Justice Michael Kirby AC CMG 1


    Constitutional interpretation is a fascinating subject. At least it is for judges and constitutional lawyers. I hope that it holds some fascination for law students as well.

    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.


    As illustrations of the importance of this subject, it is useful to take three recent decisions of the High Court:
Re Wakim8 : where the High Court upheld a challenge to the cross-vesting legislation of the Commonwealth, States and Territories9 . I, alone, dissented and the foundation for my dissent was a different view about the approach proper to the interpretation of the constitutional provisions providing for the Judicature of Australia and permitting it to adapt what I saw as new realities of cooperative federalism10 .
Sue v Hill11 : where the issue was whether the United Kingdom was, for the purposes of s 44 of the Constitution, a "foreign power" so that a subject or citizen of the United Kingdom was incapable of being chosen or of sitting as a senator in the Parliament of Australia. Plainly, having regard to the political realities then, the Convention debates in the 1890's and textual provisions in the Constitution itself, such a classification of the United Kingdom as a "foreign power" would have been inconceivable in 1901. Yet the majority of the High Court12 expressed the conclusion that the Constitution, read today, had that consequence. I did not necessarily dissent from that opinion. However, I found it unnecessary to reach a conclusion upon the question because of the view which I13 took that the High Court, as a Court of Disputed Returns, was not entitled to decide the matter of qualifications before that question had been ruled upon by the Chamber of Parliament concerned (the Senate). One Justice14 expressed strong reservations about the "evolutionary theory" of constitutional construction advanced by the majority in that case.
Ex parte Eastman15 : where the Court, over my dissent, adhered to longstanding authority16 holding that the Australian Territories are, for the purpose of the judiciary "disjoined" from the Federation and that Territory courts are not "federal courts" under the Constitution, even where they are created by the Parliament of the Commonwealth itself. This was a view which I could not uphold because of the approach which I took to the task of construing the Constitution. Whatever may have been the position in 1901, to treat the Australian Capital Territory and the Northern Territory today as "non-federal" and to view their court systems as outside the constitutionally protected right of appeal to the High Court, did not seem to me an acceptable construction of the Constitution, read with the eyes of 1999.


    My purpose in mentioning these three recent and dissenting opinions of mine is not to reargue the debates settled in those cases. That would be tedious and inappropriate. But these three cases show how vitally important is the way each Justice of the High Court approaches his or her task of interpreting the brief text of the Constitution. The three cases raise three questions:
Should the Justices confine themselves to ascertaining what the words meant according to the original intentions of the Founders, as expressed in the 1890s at the Conventions and elsewhere so as to have an objective and discoverable standard?
Should they accept those intentions as being relevant to their task; but decline to view them as necessarily determinative of the meaning of the Constitution as it operates in Australia today?
Or should they regard the constitutional document as having been set completely free in 1901 from the intentions, beliefs and wishes of those who drafted it so that it is viewed by each succeeding generation of Australians with the eyes of their own times? Should the succeeding Justices of the High Court for its meaning and purpose in which "the subjective intentions of the framers may not fetter the present and the future to the distant past"17 ?




    In the New Zealand conference, at which Justice Scalia was presented in intellectual combat with Justice Binney over this issue, each expressed, in eloquent language, the viewpoint he espoused. It was not difficult for Justice Scalia. He has been writing on this topic for many years, both as a member of the Supreme Court of the United States and extracurially. In 1997, in a book A Matter of Interpretation18 , he explained his viewpoint:


"The American people have been conditioned to belief in the Living Constitution, a 'morphing' document that means from age to age what it ought to mean. And with the conversion has inevitably come the new phenomenon of selecting and confirming federal judges, at all levels, on the basis of their views regarding a whole series of proposals for constitutional evolution. If the courts are free to write the Constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all".


    Justice Scalia continued19 :


"It certainly cannot be said that a constitution normally suggests changeability; to the contrary. Its whole purpose is to prevent change - to embed certain rights in such a matter that future generations cannot readily take them away [This is] the whole anti-evolutionary purpose of a Constitution. A Living Constitution 'means what it ought to mean If it is good, it is so till we have arrived at the stage when it is publicly proclaimed, and taught at Law Schools, that judges ought to make the statues and the Constitution say what they think best'".


    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 :


"Some constitutional and other legal issues cannot be resolved [on the facts or in terms of institutional competence] and then the judge has two choices. One is to say that if public opinion is divided on a moral issue, judges should refuse to intervene, should leave resolution to the political process. The other is to say, with Holmes, that while this is ordinarily the right way to go, every once in a while, an issue on which public opinion is divided will so excite the judge's moral emotions that he simply will not be able to stomach the political resolution that has been challenged on constitutional grounds I prefer the second route".


    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.


    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 :


"Just how far a constitutional court can travel down such a path will be affected by the court's own assessment of legitimacy and perceptions of legitimacy. In other words, much depends upon the court's perception of the underlying political philosophy of the nation, as to the appropriate limits of the law-making function of a non-elected judiciary".


    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.


    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?


    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 :


" 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 but as declaring the will and intentions of the present inheritors and possessors 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".


    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:


"In my respectful view the point which distinguishes the competing opinions expressed in Gould44 (now reflected in these proceedings) concerns a conception of the Constitution and of its capacity to adapt to changing times, with needs vastly different from those which existed when the text was written. I differ from the view that the function of the Court in constitutional interpretation is to 'give effect to the intention of the makers of the Constitution as evinced by the terms in which they settled that intention'45 . Once the makers' draft was settled it was submitted to the vote of the electors of Australia. Approved and enacted it took upon itself its own existence and character as a constitutional charter. As Holmes J remarked in Missouri v Holland46 :
'[The Constitution] called into life a being, the development of which could not have been foreseen completely by the most gifted of its begetters'.
The makers did not intend, nor did they have the power to require, that their wishes and expectations should control us who now live under its protection. The Constitution is read by today's Australians to meet, so far as its text allows, their contemporary governmental needs"47 .


    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 :


In Bonser v La Macchia , Windeyer J referred to Australia having become "by international recognition competent to exercise rights that by the law of nations are appurtenant to, or attributes of, sovereignty". His Honour regarded this state of affairs as an instance where"[t]he law has followed the facts". It will be apparent that these facts, forming part of the "march of history", received judicial notice. They include matters and circumstances external to Australia but in light of which the Constitution continues to have its effect and, to repeat Windeyer J's words, "[t]he words of the Constitution must be read with that in mind".
There is nothing radical in doing as Windeyer J said; it is intrinsic to the Constitution. What has come about is an example of what Story J foresaw (and Griffith CJ repeated) with respect to the United States Constitution:
"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."


    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.

1 Justice of the High Court of Australia.
2 P Brest, "The Misconceived Quest for the Original Understanding" 60 Boston Uni L Rev 204 at 234 (1980).
3 A F Mason, "The Interpretation of a Constitution in a Modern Liberal Democracy" in C Sampford and K Preston (eds) Interpreting Constitutions: Theories, Principles and Institutions (1996) 13 at 14 (hereafter Mason).
4 See eg Cole v Whitfield (1988) 165 CLR 360 referred to by Mason at 15.
5 See eg Windeyer J in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Association of Professional Engineers (1959) 107 CLR 208 at 267. See also Bonser v La Macchia (1969) 122 CLR 177 at 230. cf Brennan J in Theophanous v Herald and Weekly Times Pty Limited (1995) 182 CLR 104 at 143.
6 See; G Craven "Original Intent and the Australian Constitution - Coming Soon to a Court Near You?" (1990) 1 Public Law Review 166; J Goldsworthy, "Originalism in Constitutional Interpretation" (1997) 25 Fed L Rev 1; H Patapan "The Dead Hand of the Founders? Original Intent and the Constitutional Protection of Rights and Freedoms in Australia" (1997) 25 Fed L Rev 211. D Lyons "Original Intention and Legal Interpretation" (1999) 24 Australian J Legal Philosophy 1
7 See eg Brest, above n 1 at 234.
8 Re Wakim; ex parte McNally (1999) 73 ALJR 839.
9 Cross-Vesting (Jurisdiction of Courts) Act 1987 (Cth); Cross-Vesting (Jurisdiction of Courts) Act 1987 (NSW).
10 See Wakim (1999) 73 ALJR 839 at 877, my own reasons par [186] see infra .
11 (1999) 73 ALJR 1016.
12 Gleeson CJ, Gaudron, Gummow and Hayne JJ.
13 Together with McHugh and Callinan JJ.
14 Sue v Hill (1999) 73 ALJR 1016 at 1077 par [297].
15 Re the Governor, Goulburn Corrections Centre; Ex parte Eastman [1997] HCA 44 
16 Bernasconi v The King (1915) 19 CLR 629; Spratt v Hermes (1965) 114 CLR 226; Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591.
17 Re The Governor, Goulbourn Correctional Centre; Ex parte Eastman [1999] HCA 44 at [87].
18 Ibid, at p 47.
19 Ibid, at pp 40, 43, 44, 132.
20 R Posner, "The Problematics of Moral and Legal Theory" 111 Harvard L Rev 1637 at 1708 (1997).
21 M D Kirby, "Mason - From Trigwell to Teoh " (1996) 20 MULR 1087.
22 See Mason, above n 2.
23 Mason, 14.
24 Mason, 15.
25 Mason 16. The literalist approach was favoured in Australian Society of Engineers v Adelaide Steamship Co Ltd (the Engineers' case) (1920) 28 CLR 129.
26 Mason, 16.
27 R v Brislan; Ex parte Williams (1935) 54 CLR 262.
28 Mason, 30.
29 Mason, 30.
30 Loc cit. 
31 Sue v Hill (1999) 73 ALJR 1016.
32 Australian Constitution, s 74.
33 Municipal Council of Sydney v The Commonwealth (1904) 1 CLR 208 at 213; Baxter v Commissioner of Taxation (NSW) (1907) 4 CLR 1087 at 1104-1106 cf J Goldsworthy "Originalism in Constitutional Interpretation" (1997) 25 Fed L Rev 1 at 13.
34 Attorney-General (Victoria); Ex rel Black v The Commonwealth (1981) 146 CLR 559 at 577-578; cf D Solomon The Political High Court (1999) 224 at 225.
35 (1988) 165 CLR 360 at 385.
36 Ibid at 387: by reference to "A Little Bit of Lawyers' Language: The History of 'Absolutely Free' 1890-1900" in Martin (ed), Essays is Australian Federation (1969), 57.
37 A I Clark, Studies in Australian Constitutional Law (1 st ed 1901; Legal Books 1997 reprint).
38 F Wheeler, "Framing an Australian Constitutional Law: Andrew Inglis Clark and William Harrison Moore" (1997) 3 Aust J Leg Hist 237 at 242.
39 A I Clark, above n 36, 21. Emphasis added. Noted Wheeler, ibid, 248.
40 For example Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 at 171-173 per Deane J.
41 Victoria v The Commonwealth (the Payroll Tax case) (1971) 122 CLR 353 at 396-397 per Windeyer J. cf J Goldsworth, "Originalism in Constitutional Interpretation" (1997) 25 Federal L Rev 1 at 16.
42 (1999) 73 ALJR 839.
43 Ibid at 877 par [186].
44 Gould v Brown (1998) 193 CLR 346. In Gould the High Court was evenly divided so that the challenge to the cross-vesting legislation failed on that occasion; but it was quickly renewed and in Re Wakim it succeeded.
45 Re Wakim; Ex parte McNally (1999) 73 ALJR 839 at 848. This was the view stated by McHugh J in Re Wakim (par [35]).
46 252 US 416 at 433 (1920) cited in Spratt v Hermes (1965) 114 CLR 226 at 272 per Windeyer J.
47 See Spratt v Hermes (1965) 114 CLR 226 at 272 per Windeyer J.
48 (1999) 163 ALR 648 at 675, 692.
49 (1920) 28 CLR 129 at 146.
50 Sue v Hill (1999) 73 ALJR 1016 at 1027 (citations omitted).
51 P Schoff, "The High Court and History: It Still Hasn't Found[ed] What It's Looking For" (1994) 5 PLR 253; cf Wheeler above n 37 at 239.