FEDERAL
CONSTITUTIONAL
LAW
Contents
Fundamentals of Australian Constitutional Law……………………………… 3
The High Court and Constitutional Interpretation………………………….. 7
The High Court and Characterisation…………………………….................. 16
Inconsistency of Laws……………………………...……………………………........ 24
The External Affairs Power……………………………...…………………………… 32
Economic Powers (Trade & Commerce, Corporations)..…............... 40
The Races Power……………………………...……………………………................ 51
The Defence Power……………………………...……………………………...….…… 56
The Taxation Power……………………………...……………………………...……… 63
The Grants Power……………………………...……………………………...………… 69
Express Guarantees: Trial by Jury and Freedom of Religion………….. 73
Freedom of Interstate Trade and Commerce……………………………..... 79
Freedom of Political Communication……………………………...……………. 86
Judicial Power & Detention……………………………...…………………………….97
The Federal Compact: The Melbourne Corporation Principle……….. 111
Revision……………………………...……………………………...……………………… 121
Class 1 – Fundamentals of Australian Constitutional Law
Housekeeping Matters:
 21st April – Mid-session take home exam
 At the end of semester, 3 (maximum 300 words) contributions are to be sent in for
class participation  Will account for 50% of CP
o Contributions may be posts in the Moodle discussion forum, or transcribed
versions of contributions made in class
 Aim is to include readings, cases and legal materials
 Email a picture
 Course is basically set up into 3 parts:
o (1) How does the HCA do its federal constitutional law work?
o (2) What can the Commonwealth legislate for? (and how does this affect
what the States can do)
o (3) What limits are there to this legislative power (for Cth and States)?
 Be sure to understand each judge’s decision… Not so much a case/principle course
General Constitutional Information:
 Federalism = The concept that the states and the federal government are separate
o s 51 of the Constitution gives the Federal government their powers,
everything else is ‘reserved’ to the states to control
 Senate’s function = House of review for any bills that are put forward
 Constitutional rights – Right to vote (s 41), right to religion (s 116), implied freedom
of political communication, Right to trial by jury (s 80), Just terms acquisition (s
51xxxi), no discrimination on basis of residency (s 117)
o The principle of legality, where the government won’t abrogate fundamental
rights without express terms, protects many rights not explicitly mentioned
The Constitution:
 The Constitution is divided as follows:
o Chapter I – The Parliament
 Part I – General
 Part II – The Senate
 Part III – The House of Representatives
 Part IV – Both Houses of Parliament
 Part V – Powers of the Parliament
o Chapter II – The Executive Government
o Chapter III – The Judicature
o Chapter IV – Finance and Trade
o Chapter V – The States
o Chapter VI – New States
o Chapter VII – Miscellaneous
o Chapter VIII – Alteration of the Constitution

s 51 Legislative Powers of the Parliament – The Parliament shall, subject to this
Constitution, have power to make laws for the peace, order and good government of
the Commonwealth with respect to
o (i) Trade and commerce with other countries
o (ii) Taxation
o (iii) Bounties on the production or export of goods
o (iv) Borrowing money on the public credit of the Commonwealth
o (v) Postal, telegraphic, telephonic and other like services
o (vi) The naval and military defence of the Commonwealth
o (vii) Lighthouses, lightships, beacons and buoys
o (viii) Astronomical and meteorological observations
o (ix) Quarantine
o (x) Fisheries
o (xi) Census and statistics
o (xii) Currency, coinage and legal tender
o (xiii) Banking, other than state banking
o (xiv) Insurance, other than state insurance
o (xv) Weights and measures
o (xvi) Bills of exchange and promissory notes
o (xvii) Bankruptcy and insolvency
o (xviii) Copyrights, patents of inventions and designs, and trade marks
o (xix) Naturalisation and aliens
o (xx) Foreign corporations
o (xxi) Marriage
o (xxii) Divorce and matrimonial causes, parental rights and the custody and
guardianship of infants
o (xxiii) Invalid and old-age pensions
o (xxiv) The service and execution throughout the Commonwealth of the civil
and criminal process and the judgments of the courts of the States
o (xxv) The recognition throughout the Commonwealth of the laws and the
judicial proceedings of the state
o (xxvi) The people of any race for who it is deemed necessary to make special
laws
o (xxvii) Immigration and emigration
o (xxviii) The influx of criminals
o (xxix) External affairs
o (xxx) The relations of the Commonwealth with the islands of the Pacific
o (xxxi) The acquisition of property on just terms from any state or person
o (xxxii) The control of railways with respect for transport for the naval and
military purposes of the Commonwealth
o (xxxiii) The acquisition of railways, with consent of the States. on just terms
o (xxxiv) Railway construction and extension extending beyond the limits of
one state
o (xxxv) Conciliation and arbitration for the prevention and settlement of
industrial disputes extending beyond the limits of any one state
o (xxxvi) Matters in respect of which this Constitution makes provision until the
Parliament otherwise provides
o (xxxvii) Matters referred to the Parliament of the Commonwealth by the
Parliament of any state
o (xxxviii) The exercise of any power given under this Constitution can be
exercised only by the Parliament of the United Kingdom or the Federal
Council of Australiasia
o (xxxix) Matters incidental to the execution of any power vested by this
Constitution in the Parliament
Types of Constitutional Interpretation:
 The main types of constitutional challenge are:
o (1) Challenge to the validity of Commonwealth legislation on the basis that it
is outside heads of power
o (2) Challenge to the validity of Commonwealth legislation on the basis that,
although characterisable as falling within a head of power, it violates an
express or implied on the Commonwealth’s legislative power
o (3) Challenge to the exercise of Commonwealth exercise of power on the
basis that it is contrary to the Constitution
o (4) Challenge to the validity of state legislation on the basis that it is
inconsistent with valid Commonwealth legislation or falls with exclusive
Commonwealth power
Precedent and Overruling:
 Stare decisis = Doctrine of precedent… The HCA is an ‘apex’ court, giving rise to the
modern day assessment that it is not bound by its own decisions
o A ‘Practice Statement’ in 1966 in the UK gave strong support to the
conclusion that rules of precedent are not rules of law, but only laws of
practice
 Australian Agricultural Co v Federated Engine-Driver and Fireman’s Association
(1913) 17 CLR 261 - The purpose of the Privy Council (and effectively the HCA) is to
give effect to the law, not to follow precedent
o Isaacs J – Quoting Pollock in Bright v Hutton stated that ‘The judicial
committee does not hold itself bound to follow its own previous rulings’
o The Oath of a Justice is to ‘do right to all manner of people according to the
law’  Does not involve obeying previous decisions
o Precedent is overruled where the prior decision is manifestly wrong
 Justices should not unwillingly depart from precedent, rather
predecessors decision should be respectfully considered
 Wurridjal v Commonwealth (2009) 237 CLR 309 – Whether the court will overrule
one of its decision requires an evaluation of factors which may weigh for and against
overruling… Does not require an error to justify overruling
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The doctrine of precedent is not regarded as being applicable to Constitutional law
due to the difficulty in requiring a referendum to overrule an erroneous decision
o Stevens v Head (1993) 176 CLR 433 – The Constitution prevails over the
pronouncements of the HCA
o Queensland v Commonwealth (Second Territory Senators Case) (1977) 139
CLR 585 – Justices in the HCA are to look to the Constitution, not precedent,
when making their decision (Cases concerned whether it was constitutionally
valid to provide for territorial representation in the senate)
 Relying on earlier decisions in not solid ground for a constitutional
challenge  Different judges do not lead to different decisions!
 Where a case is in the ‘grey area’, the courts have previously favoured
the past precedent rather than replacing it
 Such as it being a political issue to give more senate seats in
Second Territories Case, not an issue for the HCA to deal with
Departure from precedent cannot be justified merely by a change in the composition
of the bench (R v Commonwealth Court of Conciliation and Arbitration (1914) 18 CLR)
The overruling of a precedent must be replaced by some fresh doctrine (Shaw v
Minister for Immigration and Multicultural Affairs)
Overruling precedent requires (1) An application for leave to the HCA, (2) The court’s
belief that there is a need to overrule on the basis that (i) The rule has not been
established, (ii) Judges had expressed disagreement, (iii) The previous decision had
caused inconvenience, (iv) The earlier rule had not been acted on
Different judges take different views on whether they need to depart from a
precedent which they have previously established in other cases
Reading down and Severance:
 In cases where the HCA rules that a particular provision of an Act is invalid (both not
the entire Act), the legislation can be ‘read down’ so as not to apply where it cannot
validly do so  ‘Read down’ = Give the words their most natural meaning
o EG: Wilson v Minister for ATSI – The word ‘person’ was read down to not
include a judge
 Where an act can be read down, the court may still ‘sever’ (cut away) the offending
parts of the act, leaving the remainder with a valid operation
 Purpose of reading down = To give effect so far as possible to Parliament’s intention
 s 15A Acts Interpretation Act – Parts of an Act can be construed as valid where other
parts/sections have been ruled invalid
 Where a law is invalid for being inconsistent with the powers given under the
Constitution, the Court should make every attempt to read down a statute so that it
can be valid (as per common law principles)
Class 2 & 3 – The High Court and Constitutional Interpretation
Should the High Court read Commonwealth constitutional powers expansively or
restrictively (relates to federalism implications)?
 In the recent years the approach has shifted to reading the Constitution expansively
and broadly  Evidenced in the Engineers case
Pre-Engineers:
The Division of Legislative Power:
 The delegates at the initial Constitutional Convention had the intention to set up a
Commonwealth government. They have a strong view of federalism, as the need to
protect state’s powers was a priority of many Constitutional framers
o The judges on the first High Court echoed this view  The need for a wide
array of state powers was recognised
 The Australian Constitution assigns to the Commonwealth Parliament a list of
powers relating to a range of subjects and purposes (primarily found in s 51)
o The powers not listed in the Constitution are left to the states as ‘residual
powers’
o There is also concurrent powers where both the state and the Federal
government have power.
 In the case of conflict, s 109 Constitution provides that the
Commonwealth law shall prevail
o ‘Exclusive powers’ are afforded to the Government where the states are
deprived of any power to enact valid laws
 Federalism = Each level of government is sovereign… Terminology for the separation
of the state parliament from the federal parliament
o There is only a handful of exclusive federal powers, the majority of powers
are ‘concurrent’ (can be exercised by the states or the Commonwealth)
 Upon inconsistency between state and Commonwealth legislation, s
109 of the Constitution gives preference to the Commonwealth law
 The ‘reserved states doctrine’ (now abrogated) meant that Commonwealth grants of
power were to be interpreted to not encroach on state, residual powers
o NOTE: Engineers Case removed the possibility of federal laws not applying to
state bodies/persons
Implied Immunity of Instrumentalities:
 The ‘implied intergovernmental immunities’ doctrine (applied by the first HCA)
asserted that state and federal governments are immune from each other’s laws
 2 separate entities who operate within the ambit of their own authorities
o Such as D’Emden v Pedder (1904) 1 CLR 91 where it was held that state law
and procedures could not apply to Commonwealth officers. Also applied in
Deakin v Webb where the HCA held that a Commonwealth cabinet minister
was not liable to State income tax
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o O’Connor J in Municipal Council of Sydney v Commonwealth (1904) stated the
rationale behind the implied immunities as being the ideal that sovereignty
should be absolute to the extent that conflict was not possible
o The Railways Servants Case (1906) 4 CLR 488 provided authority for the
assertion that state agencies are also immune from Commonwealth laws
The controversy in regards to the state’s ability to tax commonwealth officers was
legislatively resolved by the Commonwealth Salaries Act 1907 which made salaries
taxable by the states
Griffith CJ in the Steel Rails Case (1908) begun the erosion of the implied immunities
doctrine by emphasising the prevalence of the express provisions of the Constitution
over the doctrine of implication
o The Engine-Drivers Case (1911) restricted the application of the doctrine to
governmental functions only, excluding trading functions
o The doctrine was further eroded in the Municipalities Case where it was held
that municipal councils has not immunity from Commonwealth interference
in the making, maintenance, control and lighting of public streets’
Reserved State Powers:
 Powers not in s 51 of the Constitution are ‘reserved’ to the State for their control
o The grant of law making for the government is to be narrowly construed
upon consideration of what is in the Constitution, with the remainder
afforded to the states
o s 107 of the Constitution protects reserved powers  Indicates that laws not
expressly mentioned in the Constitution continue in force as part of the
state’s laws/powers
 The HCA in R v Barger (1908) 6 CLR 41 declared that the power to pass an Act must
be vested either in the parliament or the state legislatures
o ‘Any concept of a residue retained by the States can only meaningfully refer
to what is left over after the Commonwealth’s powers are determined’
o NOTE: Today the court would allow legislation to be both state and federal
matters… As long as it is part of one of the Commonwealth (s 51) powers, it
would be considered as valid under modern HCA constitutional interpretation
 The Commonwealth has no power to enact legislation regulating intrastate trade
practices as it does not fall within s 51xx of the Constitution (Huddart Parker v
Moorehead 1909)
 Aroney provided support for the reserved powers doctrine due to the following:
o (1) Political origins, underlying ideas, structural features and the intended
purpose of the Constitution supported the ideal
o (2) The use of precise terms in the Constitution to justify specific, not vague
definitions of what powers are reserved to states
o (3) Recognition that judges can make choice to protect federalism or expand
federal powers
The Engineers Case:
 The Engineer’s case overthrew the implied immunities and reserved state powers
doctrines and has since had a decisive and lasting effect
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers’ Case) (1920)
28 CLR 129:
 Issue – Whether a Commonwealth law made under the ‘conciliation and arbitration’
power (s 51xxxv) could authorise the making of an award binding 3 state employees?
o Can a Commonwealth law be binding on state governments?
 Held – The manifest duty of the HCA is to turn its earnest attention to the provisions
of the Constitution itself rather than any past decisions
 Decision – The HCA is to initially read the statute as a whole in an attempt to
establish its true and proper construction
o If the text is ambiguous, the context and scheme of the Act is to be assessed
o s 51(xxxv) is in terms so general that it extends to all industrial disputes
extending beyond the limits of any one State therefore the legislation does
apply to state employees
o Both the implied immunities and reserved state powers doctrines were
overturned!  Focus is to be on the text of the Constitution!
 ‘Judicial inquiry as to the meaning of the Constitution must be read naturally in the
light of the circumstances in which it was made, with knowledge of the combined
fabric of the common law, and the statute law which preceded it’
 Ratio – State law must give way to any repugnant Commonwealth law
o All Commonwealth Acts have supremacy over state acts  The doctrine of
implied immunities no longer applies
o Literalism, where the meaning of the words in the Constitution takes
supremacy, is preferred in Engineers to overturn the doctrine of implied
immunity
 Step 1 in interpreting the Constitution – Start with the text
 Step 2 – Interpret it like a normal statute… Look to the settled rules of
construction, give words their natural meaning
 Latham critiqued the decision as the judges founded it on responsible government…
There is no explicit reference to responsible government in the Constitution
o Also not always appropriate to always interpret the constitution like a statute
since it is not a statute
Victoria v Commonwealth (Payroll Tax Case) (1971) 122 CLR 353:
 Windeyer J assessed reasons behind change of direction in Engineers as follows:
o States were not sovereign before 1901 in any real sense, and thus the
doctrine of implied immunity of instrumentalities was doomed from the start
o Strengthening of Cth legislative powers at expense of States’ powers is logical
consequence of s 109 (Cth has preference over states)
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o The two doctrines discarded in Engineers were influenced by understanding
of federation immediately after 1901
o The change in Engineers was likewise externally influenced by growing sense
of nationhood  The real impetus for the decision in Engineers was the aims
of improving international relations and responding to WWI
o Suggests that interpretation of Constitution is not just a matter of strict legal
technique, but varies and develops ‘in response to changing circumstances’ in
the manner of common-law development
Further to The Payroll Tax Case, Richard Latham suggests that the real ground for the
decision was the majority’s preference for string Commonwealth powers post WW1
o Claimed that the literalist method (preferring the actual words of the
Constitution) was not the actual cause but rather the justification given for
the policy preference in favour of Commonwealth over states
The Jumbunna Principle:
 A broad construction of the constitution is to be preferred… Ultimately gives powers
to the Commonwealth over the states in situations of conflict
o Where there is a choice between construing the Constitution broadly or
narrowly, broadly is to prevail
 Exception – Anything in the text or context of the Constitution (such
as the existence of another provision) that suggests a narrow
interpretation
Jumbunna Coal Mine N.L. v Victorian Coal Miners’ Association (1908) 6 CLR 309
 Equally influential in High Court’s approach to constitutional interpretation:
o ‘Where it becomes a question of construing words used in conferring a
power of that kind [i.e. a power to deal with a wide-ranging social problem
such as ‘industrial disturbances’] on the Cth Parliament, it must always be
remembered that we are interpreting a Constitution broad and general in its
terms, intended to apply to the varying conditions which the development of our
community must involve’ (at 367-68)
o ‘Where the question is whether the Constitution has used an expression in
the wider or the narrower sense, the Court should ... always lean to the
broader interpretation unless there is something in the context or in the rest
of the Constitution to indicate that the narrower interpretation will best carry
out its object and purpose’ (at 368)
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Further, in R v Public Vehicles Licensing Appeal Tribunal (Tas) (1964) 113 CLR 207, the
HCA stated that Commonwealth powers should be construed with all the generality
which the words used permit
o Heydon J, in Pape v Commissioner of Taxation [2009] HCA 29, offers a
counter-argument favouring the need to consider context where necessary
(context includes the federal nature of the constitution and the history of its
enactment)
Literalism, Legalism and Judicial Choice:
 The Engineers’ case is generally perceived as consummating a triumph of legalism,
which has been thought to have dominated the HCA’s approach ever since
o Isaacs J emphasised that the words of the Constitution are to have greatest
influence (a mix of literalism and legalism)
 Literalism = Emphasis on literal meaning of the words (text focused)
 Legalism = Emphasis on the traditional legal principles and techniques.
All reasoning for judicial decisions must come from the self-contained
body of law (pre-existing common law and statutes used to interpret)
 Law is concrete/determinate
 Engineers’ Case supported legalism
 Realism – Where a legal principle is not abundantly clear, community
and personal values should be used to inform the judgment
 Law involves choices that are based on the underlying
principles/values of judges
 Legalism is less concerned with the actual text… Literalism denies the opportunity to
use external material upon interpretation however legalism advocates for their use
o A judgment that is ‘too legalistic’ is difficult to ascertain… Why should a
judgment be critiqued for finding too much support in legal principles?
o Advantage of legalism is that decision proceed from the application of
objective legal rules and principles… They have a sound basis!
 Chief Justice Dixon (1952) stated that close adherence to legal reasoning was the
only way to maintain confidence in the HCA  Advocate of strict legalism
 Chief Justice Barwick (1981) on literalism - The ‘function of the Court is to give to the
words their full and fair meaning and leave the Constitution which places the residue
with the states to work itself out’
o The text of the Constitution needs to be controlling… The words cannot be
sidestepped as it is the task of the courts to say what the words mean
 Chief Justice Mason believed that the approach taken by a judge should be
mentioned with the reasons and justification of the policy values underpinning a
decision should be explicitly stated (Mix of legalism and realism approaches)
o Sometimes the Court may have no legal precedent to base its decision on
(new legal areas) therefore rejecting realism would be inappropriate
 Heydon (2007) noted that the Engineers’ Case did accept the need to interpret the
Constitution against the historical background and in light of all circumstances in
which it was made
 A person that describes themselves as a literalist is going to be slower in turning to
external materials however, no judge holistically applies one exact approach
Judicial Choice:
 The task of the judge is to ascertain the ‘right answer’ to any legal problem  Is
essentially done by a mechanical process
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o Original approach was that judges were to discover legal answers, not invent
them
o Recognised that judges are required to make personal choices in order to
apply the law… That choice must ultimately depend on the individual judge’s
sense of what the law ought to be
Although theories are existent to explain how HCA judges come to their decision’s, it
is believed that interpretation of the actual Constitution is regarded as more
important than any of the (below mentioned) general theories
The Dead Hand and the Living Tree (Keep the Constitution the same or allow it to evolve?)
Use of Historical Materials:
 Griffith CJ in Tasmania v Commonwealth and Victoria (Drawbacks Case) (1904) 1 CLR
329 – The same rules of interpretation apply to the Constitution that apply to any
other written document
o The role of the HCA is to interpret the language of the Constitution!
o Barton J – ‘We have to arrive at the proper meaning of language by reference
to the words themselves and to the history of the law’ [at 358]
o O’Conner J – The Constitution differs in no way from any other statute… If
the words are plain, effect must be given to them; If they are doubtful, the
intention of the legislature is to be gathered from the other provisions of the
Statue aided by a consideration of surrounding circumstances
 The intention should not be deduced from instruments beyond the
constitution… Including reference to expression of opinions of
members of the Constitutional Conventions
The Intention of the Framers:
 Originalism – The interpretation of the Constitution should adhere to its ‘original
intent’ or the original understanding of its text
o Giving effect to the Constitution’s meaning as it would have been in 1900
o What would have the words be taken to mean by a reasonable, informed
person at the time of their production?
 The ultimate duty of a fundamentally ‘originalist’ court will be to find the intention
of the framers of the Constitution… The words of the constitution will be an
indispensable tool in discerning that intention, but they will not be the only tool
 In Australia, the HCA has departed from the intention of the Farmers merely for the
purpose of reallocation power from the regions to the centre
o Only used when it is helpful, should not be a controlling perspective
 In the Work Choices Case (2006) 229 CLR 1 the HCA declined to draw any inference
from original intent as the powers relevant in the present time were not politically
controversial at the time which the Constitution was framed
o The place of corporations in the economic life of Australia today is radically
different from the palace they occupied when the framers were considering
what powers should be given to the Federal Parliament
o Giving priority to framers intention gives rise to competing constructions
Textualism:
 Textualism – The focus is on the constitutional text, with no attempt to discover the
subjective intentions of its authors, but simply to establish the meaning that its
language would have had according to general understandings of the time
o Giving effect to the plain/ordinary meaning of the words used in the
Constitution
 Heydon (2007) argues that this is the original approach of the HCA as focus has been
placed on the need to search for meaning of the statute in many previous cases
o Barwick CJ (in King v Jones 1972) – ‘The words of the Constitution are to be
read in ‘that natural sense they bore in the circumstances of their enactment
by the Imperial Parliament in 1900’
 Textual originalism - Concepts at the time of the Constitution’s enactment are to
have greater influence than evaluation of the concepts at the time of evaluation
o Search is always for the objective intention of the makers of the Constitution
(Eastman v The Queen)
 McHugh J in Eastman v The Queen – ‘The traditional approach to constitutional
interpretation in Australia is probably best described as textualism or semantic
intentionalism (not literalism)
o The necessity of judicial choice is recognised at the Constitution is not a ‘rigid
blueprint’ but rather an outline or broad framework capable of adjusting to
changing conditions and circumstances
Incremental Accommodation:
 Incremental accommodation – Giving effect to the modern meaning of the
Constitution, by taking account of changing social values, technological change
and/or new legal institutions
o EG: Expansion of s 51v (postal, telegraphic, telephonic and other like services)
to radio in R v Brislan (1935), and further to television in Jones v
Commonwealth (1965) and telecommunication services in Bayside City
Council v Telstra (2004)
 Inclusion of ‘other like services’ was an affirmation by the framers
that the Constitution was to take into account new developments
 Interpreting words in line with their modern meanings as the wording of the
Constitution was deliberately chosen to accommodate further developments
 Constitution includes ‘ambulatory language’ – The Constitution’s language was
intended to incorporate later meanings
o Differential meaning is possible where the new interpretation shares the
same essential characteristics & underlying purposes as the original meaning
 Whether an interpretation can be applied to a differential meaning is often
dependent on the connotation/denotation distinction
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o Connotation – Words of the Constitution are static and fixed as they were in
1900. The essential elements of the Constitution (such as marriage)
o Denotation – Words may be subject to change as new instances, or different
kinds of instances arise (such as marriage including same sex relationships)
 In Davis v Commonwealth (1988) it was conceded that there has been
an increase in the denotation of power since 1908
Kirby in Brownlee v Queen (2001) accepted the incremental accommodation
approach by stating that words must be given their contemporary meaning
o ‘If framers intentions are to be preferred the meaning of the Constitution
would be found in history books, not by legal analysis’
Progressivism – Adapting the words of the Constitution so that they include modern
interpretations of current principles/values
o Text should be read in light of what is occurring in the current environment
Purposive Interpretation:
 Purposive Interpretation - An approach to interpreting the text must account for the
existence of substantive value choices, and must account for the existence of
substantive value choices, and must accept the ambiguity inherent in the effort to
apply them to modern circumstances
o The Constitution is believed to be an organic living institution rather than a
mathematical formula… Is therefore adaptable to altering situations
o A large and liberal interpretation should be favoured over a narrow and
technical construction (Mason 1986)
 The constitution is to be regarded as a flexible/adaptable to changing circumstances
due to recognition of the ever-changing social and legal backgrounds
 Purposive interpretation favours objective purpose, which reflects modern, deep
perspectives in the movement of the legal system through history
Strategic Compromise?
 The HCA has never settled on a single, preferred approach to constitutional
interpretation (expressed by Callinan J in Work Choices)
o Any one of originalism, textualism or incremental accommodation may be
used alone or in combination
 Goldsworthy has argued that the best approach is one of originalism that is open to
the possibility of change via judicial creativity
Commonwealth v ACT [2013] HCA 55:  Modern Court’s view!
 Debates cast in terms like ‘originalism’ or ‘original intent’ with their echoes of very
different debates in other jurisdictions are not to the point and serve only to obscure
much more than they illuminate
o s 51 (xxi marriage) is not to be construed as conferring legislative power on
the federal parliament with respect only to the status of marriage… or rights
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as they stood at federation  The Court should consider changing
considerations of what constitutes marriage
As the status of marriage is not, and has never been immutable/absolute, there is no
warrant for reading the legislative power given by s 51xxi as tied to the state of the
law with respect to marriage at federation
o Marriage was considered by the court as having a new, modern meaning that
included between people of the same sex
WHAT WAS THE DOCTRINE OF RESERVED STATE POWERS?
Commonwealth is given exclusive powers under s 51, the reserved state powers is
everything that does not fall with that ambit… They are left with what is not listed in the
Constitution
WHAT GENERAL APPROACH TO CONSTITUTIONAL INTERPRETATION WAS ADOPTED BY THE HIGH
COURT IN ENGINEERS CASE? WHY DID THAT APPROACH RESULT IN THE DEMISE OF THE RESERVED
STATE POWERS DOCTRINE?
Literal approach – The words of the constitution are to be construed when High Court
judges make decisions. It allowed for ‘reading down of some sections and concurrently led
to the state powers being de-prioritised
WHAT IS THE RELATIONSHIP BETWEEN SS 51, 107 AND 109 OF THE CONSTITUTION?
s 51 (Federal Powers) – Legislative powers of the parliament – Lists the federal parliaments
powers
s 107 (State Powers) – Saving of power of state parliaments – Gives the states the power to
make laws concerning all things not listed in the Constitution.
s 109 (Preference of Cth over State) – Inconsistency of laws – The Commonwealth shall prevail
in the case of inconsistency between state and commonwealth laws