HERESY AS ORTHODOXY: WERE THE FOUNDERS
PROGRESSIVISTS?
Greg Craven*
INTRODUCTION
Probably the most basic contemporary controversy over the interpretation of the
Australian Constitution is that between the methodologies of originalism (or
intentionalism)1 and progressivism. According to the first, the fundamental task of the
Courts (and especially the High Court) usually is regarded as being to interpret the
Constitution so as to give effect to the intentions of those who framed it at the great
Conventions of the 1890s, commonly referred to as 'the Founding Fathers' or (as here)
'the Founders'.2 Progressivists, on the other hand, believe that a search for historical
intention is at best incidental in the process of constitutional interpretation, and that
the Court should construe the Constitution so as to bring it into accord with modern
needs and exigencies. Between the two sides in this fiercely contested debate stretches
a vast chasm both of theoretical approach and rhetoric.3 A third approach, literalism,
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*
BA, LLM (Melbourne), Barrister and Solicitor of the Supreme Court of Victoria, Foundation
Dean and Professor of Law at the University of Notre Dame, Australia.
1
There are subtle differences between the two, with originalism comprising essentially a
particularly historicist version of intentionalism, but these differences are largely
immaterial for the purposes of this article. For a discussion of such issues see, generally,
Jeffrey Goldsworthy, 'Originalism in Constitutional Interpretation' (1997) 25 Federal Law
Review 1; Jeremy Kirk, 'Constitutional Interpretation and a Theory of Evolutionary
Originalism' (1999) 27 Federal Law Review 323.
2
The Founders are most commonly identified as the relevant source of constitutional
intention in Australian intentionalist and originalist literature: see, eg, Goldsworthy, above
n 1; Greg Craven, 'The Crisis of Constitutional Literalism in Australia' in H P Lee and
George Winterton (eds), Australian Constitutional Perspectives (1992) 1. Progressivist
commentators sometimes argue that the relevant source of intention is comprised in the
colonial populations themselves: see, eg, Kirk, above n 1, 326, 341–3; Stephen Donaghue,
'The Clamour of Silent Constitutional Principles' (1996) 24 Federal Law Review 133, 151–2.
For obvious reasons, this article proceeds on the former assumption.
3
There is now a voluminous and recent literature on such issues in an Australian context:
see, by way of example only, Goldsworthy, above n 1; Jeffrey Goldsworthy, 'Interpreting
the Constitution in Its Second Century' (2000) 24 Melbourne University Law Review 677; Kirk,
above n 1; Sir Anthony Mason, 'Constitutional Interpretation: Some Thoughts' (1998) 20
Adelaide Law Review 49; Justice Michael Kirby, 'Constitutional Interpretation and Original
Intent: A Form of Ancestor Worship?' (2000) 24 University of Melbourne Law Review 1;
Donaghue, above n 2; Craven, above n 2.
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despite a hallowed history in Australian constitutional law4 and its routine
deployment in virtually all important cases concerning federal legislative power,5
today largely is overshadowed in the minds of constitutional lawyers by the
fascinations of its two rivals.
The central importance of progressivism as a potential constitutional methodology
is clear. By wielding the Constitution as a 'living force',6 the Court can mould its
provisions so as to permit the judicial disposition of an entire range of important social
and policy questions, ranging from the scope of particular powers of the
Commonwealth Parliament, to the constitutional recognition and protection of selected
human rights. Traditionally, the operation of progressivism as a constitutional force
has tended to be disguised by the deployment of some more conventional forms of
legal reasoning, such as literalism,7 but increasingly it has of late dared openly to speak
its name.8 Equally clear is the basis of the opposition to progressivism. To its critics,
progressivism is objectionable primarily on two grounds, each rooted in a version of
democratic theory.9 First, progressivism is a device whereby unelected judges assume
power over a range of matters not confided to them by the Constitution, matters which
properly fall for disposition by elected legislatures. Second, and even more
fundamentally, progressivism—at least in its more potent forms10—involves nothing
less than the judicial amendment of the Constitution in usurpation of the rights of the
electors of the Commonwealth and the states acting under s 128. It is these charges,
that progressivism represents an assault by stealth on traditional conceptions of
constitutional democracy, that gives the debate much of its academic and political
intensity.
Within this fiercely contested discussion, however, one issue has received relatively
little attention. This is the question of whether the Founders actually intended that the
Constitution should be interpreted more or less strictly in accordance with their
intentions, or to put the matter the other way around, whether the Founders
themselves might not have intended that the Constitution should be interpreted
progressively. While it might be just possible to support an intentionalist theory of
constitutional interpretation in the absence of any Founders' intent to that effect,11 it is
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4
As expressed in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd ('the Engineers
Case') (1920) 28 CLR 129.
5
See, eg, Commonwealth v Tasmania ('the Tasmanian Dam Case') (1983) 158 CLR 1.
6
The phrase memorably employed by Andrew Inglis Clark in Studies in Australian
Constitutional Law (1901) 21, and adopted by Deane J in Theophanous v Herald and Weekly
Times Ltd (1994) 182 CLR 104, 171–3.
7
As, for example, the expansion by the High Court of the power of the Commonwealth
Parliament to legislate with respect to external affairs (s 51(xxix)) in the Tasmanian Dam
Case (1983) 158 CLR 1.
8
See, eg, Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, 168–73 (Deane J); Re
Wakim; ex parte McNally (1999)198 CLR 511, 600 (Kirby J).
9
For a sustained attack on progressivism as a constitutional phenomenon see Greg Craven,
'The High Court of Australia: A Study in the Abuse of Power (Thirty-First Alfred Deakin
Lecture)' (1999) 22 University of New South Wales Law Journal 216; see also Haig Patapan,
'The Dead Hand of the Founders? Original Intent and the Constitutional Protection of
Rights and Freedoms in Australia' (1997) 25 Federal Law Review 211.
10
As to the different shades of progressivism see below nn 30-6 and accompanying text.
11
For example, by a paradoxical argument to the effect that the Founders' intent is not
binding per se, and that the Founders' views as to general modes of interpretation therefore
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Were the Founders Progressivists?
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implicit in virtually every articulation of intentionalism that the Founders of the
Australian Constitution intended, positively, that the document should be interpreted in
accordance with their intentions as to its meaning; and negatively, that it should not be
the subject of progressive interpretation. In any event, if only as a matter of
constitutional rhetoric, any intentionalist theory that could not itself be intentionally
supported would be profoundly unpersuasive. The attitudes of the Founders to
progressivism, therefore, are of considerable significance within current constitutional
debate, and it hardly is surprising that some Australian progressivists are beginning to
hint that the Founders should have been counted among their own ranks from the
beginning.12
This is the central question addressed in this article: did the Founders intend that
the Australian Constitution should be the subject of progressive interpretation? First, the
notion of progressivism itself will be explored, its different strands and levels isolated,
and its relationship with Founders' intent identified. In particular, the increasingly
frequent (if vague) suggestions that the Founders did indeed contemplate some form
of progressive constitutional interpretation will be noted. Second, and critically, these
assertions that the Founders were supportive of progressive constitutional
interpretation will be tested against a detailed analysis of the original Convention
Debates. The general conclusion drawn in this context will be that, while the Debates
do undeniably disclose certain statements progressivist in tone, these are isolated,
ambivalent and heavily affected by context.
Third, a similar assessment as to progressive tendencies will be made of three
important sources of contemporary material from the period immediately after
Federation: some of the more influential constitutional commentaries written in the
wake of the passage of the Constitution; the debates on the Judiciary Bill 1902-3 (Cth)
in the Commonwealth Parliament; and some of the more significant constitutional
decisions of the early High Court. The conclusion reached here will be that, while the
debates on the Judiciary Bill in particular contain more than one contribution that is
progressivist in flavour, such statements generally are qualified both by their context
and their own content, as well as being balanced by other (generally less well known)
statements extremely hostile to progressive interpretation. Moreover, it is highly
significant that the early constitutional decisions of the High Court are markedly
inconsistent with any acceptance by the Founders of a progressive approach. The final
conclusion drawn from an examination of all these sources will be that there exists no
plausible evidence that the Founders in general or a significant number of them
envisaged progressive judicial interpretation of the Constitution.
PROGRESSIVISM AND FOUNDERS' INTENT
Australian constitutional progressivism
The central idea behind progressivism as articulated above is relatively
straightforward. It lies in the notion that, in interpreting the Constitution, judges (and
especially the Justices of the High Court) consciously should strive to construe the
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may be ignored, but that as matter of policy, intentionalism as related to particular
constitutional expressions and phrases nevertheless is the preferable mode of interpretation
having regard to such considerations as certainty and predictability.
12
See below nn 37–52 and accompanying text.
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document so as to keep its provisions aligned with the developments, needs and
values of contemporary Australia.13 The essence of progressivism thus is that it
involves, to a greater or lesser extent, a constant process of judicial up-dating of the
Constitution.
Thus stated, there always have been broadly progressive elements in Australian
constitutional interpretation, some of them relatively confined in character and
generally uncontroversial. For example, the High Court has long employed the
technique of connotation-denotation, whereby a constitutional expression includes not
only the specific instances which fell within that expression in 1900 (denotation), but
also any further instances which have come into being since that time but which are
nevertheless within the idea represented by the expression in question (connotation).14
The chief effect of this technique has been to allow the legislative powers of the
Commonwealth Parliament some scope to expand so as to comprehend new
developments and technologies as and when they are deployed.
Rather more widely, judicial statements to the effect that the Court's reading of the
Constitution must take account of the sweep of history are not unknown, or confined
solely to recent years. Perhaps one of the most oft-cited High Court dicta in this regard
is that of Windeyer J in Victoria v Commonwealth (the ‘Payroll Tax Case’),15 to the effect
that the repudiation of the jurisprudence of the first High Court in the Engineers Case
represented merely a natural process of reading the Constitution in a 'new light' shed
by political and social developments in the years since Federation.16 Admittedly,
avowals of judicial revisionism in Australian constitutional history usually have not
been so open. The reality, however, is that a strong element of covert progressivism
has informed a good deal of the constitutional jurisprudence of the High Court. Most
notably, the 'ultra-literalism' that emerged from the Engineers Case has had the practical
effect that the legislative powers of the Commonwealth have inexorably expanded
simply by virtue of the fact that the interpretative technique of literalism inevitably
favours a legislative domain delineated by express enumeration (that of the
Commonwealth) rather than one defined by way of general residue, as is the case with
that of the states. Engineers-style literalism thus has allowed the Court to pursue a
functionally progressivist agenda in favour of the centralization of power while
appearing to engage in a value free, formal legalism.17
The recent emergence of progressivism as a widespread, explicit force in Australian
constitutional interpretation essentially has corresponded with the discovery by the
High Court in the Constitution of 'implied rights'.18 On any real analysis, this process
has represented large-scale judicial modification of the Constitution, although as the
terminology of 'implication' indicates, the general position of the Court has been that
its new rights discourse is linked to traditional norms of constitutional exegesis, and
even in a very artificial way to notions of the Founders' intent. Nonetheless, in seeking
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13
See, eg, Craven, above n 2, 16–17.
14
See, eg, R v Brislan; Ex parte Williams (1935) 54 CLR 262; Grain Pool of Western Australia v
Commonwealth (2000) 202 CLR 479; and see, generally, Leslie Zines, The High Court and the
Constitution (4th ed, 1997) 17–22.
15
(1971) 122 CLR 353.
16
Ibid 396.
17
Cf Geoffrey Sawer, Australian Federalism in the Courts (1967) 197.
18
In such cases as Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.
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to justify what undoubtedly was a dramatic departure from its previous highly literal
approach to constitutional interpretation, particular members of the Court increasingly
have enunciated theoretical positions that are openly progressivist, or whose logic
tends inevitably in that direction.
Probably the most dramatic and best-known instance of this tendency was the
enthusiastic articulation by Deane J in such cases as Theophanous,19 of a theory of the
Constitution as a 'living force'. Heavily relying on the largely overlooked writings of
Founder Andrew Inglis Clark,20 Deane J ridiculed reliance upon historically-based
methods of interpretation as submitting to the clutch of the 'dead hand' of the past. The
Constitution was to be interpreted as a 'living force', to be adapted as required by the
march of history to new developments and exigencies. The views of Deane J hardly
represented the consensus of the Mason Court, but, in their disdain for historically
derived constitutional analysis, were to find sympathisers among both judges and
commentators.
Although the enthusiasm of the High Court for the creation of implied
constitutional rights seems to have waned (at least temporarily),21 the preparedness of
some of its members to articulate an essentially progressivist methodology has not.
Most notably, Kirby J in Wakim propounded a form of progressivism just as potent as
that of Deane J:
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.22
This is a theme that has been almost ritually re-expressed by Kirby J (with minor
variations) both in his judgments and his extra-curial writings.23
Even McHugh J, often regarded as a constitutional conservative on the basis of his
repeated injunctions that the process of constitutional interpretation should be literally
and historically based,24 occasionally has seemed to stray into a progressivist
hinterland of his own. Most notably in Wakim, he enunciates an open-textured
constitutionalism which, while more cautiously expressed than the open revisionism
of Kirby J, logically operates in similarly progressivist directions in self-consciously
maximizing the range of constitutional choice open to the Court:
Many words and phrases of the Constitution are expressed at such a level of generality
that the most sensible conclusion to be drawn from their use in a Constitution is that the
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19
Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, 168–73 (Deane J).
20
Inglis Clark, above n 6, 21; and see below nn 129–42 and accompanying text.
21
See Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
22
Re Wakim; ex parte McNally (1999) 198 CLR 511, 600 (Kirby J).
23
See, eg, Re the Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322,
355; Eastman v The Queen (2000) 203 CLR 1, 79; Cheng v The Queen (2000) 203 CLR 248, 321;
Brownlee v The Queen (2001) 207 CLR 278, 321–2; Kirby, above n 3, 10–14; Dan Meagher,
'New Day Rising? Non-Originalism, Justice Kirby and Section 80 of the Constitution' (2002)
24 Sydney Law Review 141, 141–2.
24
See, eg, Cheng v The Queen (2000) 203 CLR 248, 292–5; Re Patterson; ex parte Taylor (2001)207
CLR 391, 426–7.
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makers of the Constitution intended that they should apply to whatever facts and
circumstances succeeding generations thought they covered.25
Again in Eastman,26 after a rather convoluted exposition of the task of constitutional
interpretation that contained nods in the direction both of hard-line originalism and
radical progressivism of the type espoused by Kirby J,27 McHugh J stated:
Our Constitution is constructed in such a way that most of its concepts and purposes are
stated at a sufficient level of abstraction or generality to enable it to be infused with the
current understanding of those concepts and purposes. This is consistent with the notion
that our Constitution was intended to be an enduring document able to apply to
emerging circumstances while retaining its essential integrity.28
As will be suggested below,29 the practical difference between this type of opentextualism and the overt progressivism of Kirby J often will be limited.
Levels of progressivism
The reality, therefore, is that progressivism remains a significant feature of the High
Court's current constitutional jurisprudence, and this situation is unlikely to change.
Indeed, the rise of progressivism over the past decade from guiltily unstated premise
to occasional cheerful avowal suggests that it will play an increasingly prominent part
in Australian constitutional interpretation. It is, however, important to recognize that
there are a wide variety of elements of constitutional interpretation that may be
regarded as containing some element of progressivism, and that these range widely,
from the relatively uncontroversial, to the type of dramatic constitutional activism
espoused by Kirby J.
At its weakest and most modest level, progressivism may be regarded as
comprehending such phenomena as the High Court's traditional utilisation of the
connotation-denotation technique.30 As noted above, this technique indisputably has
permitted the continuous extension of the Commonwealth legislative power to
moderately novel factual situations. On the other hand, its application is, at least in
theory, strictly limited by virtue of the fact that the central idea of the provision in
question—the connotation—is set by reference to the meaning of the relevant terms in
1900, and thus by reference to the historic intentions of the Founders.
At a slightly higher level of progressivism is the notion that, where a constitutional
provision genuinely is ambiguous, it should be interpreted so as to produce the result
most in accord with contemporary standards and values in Australia. Rarely overtly
articulated, there is little reason to doubt that this technique is part of the interpretative
armory of the High Court.31 Moreover, cautiously and genuinely applied, it probably
would arouse relatively little ire, even among moderate originalists. The difficulty that
arises in this correction is not with the modernist resolution of admitted ambiguity, but
with the concept of ambiguity itself: it will be all too easy for a right-minded Court to
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25
Re Wakim; ex parte McNally (1999) 198 CLR 511, 552 (McHugh J).
26
(2000) 203 CLR 1.
27
Ibid 41–51.
28
Ibid 50.
29
See below nn 32–4 and accompanying text.
30
See above n 14 and accompanying text.
31
See Craven, above n 2, 16–19.
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ritually determine ambiguity as a prelude to the application of its progressivist
methodology.
This leads directly into the next and rather higher level of progressivism that would
seem in practical terms to flow from a determined application of the 'open textualism'
sometimes expounded by McHugh J. While there is room for doubt in view of some of
his other pronouncements on the subject of constitutional interpretation that McHugh J
actually would embrace the full implications of such an approach,32 the logic of that
methodology is that where constitutional provisions are to be seen as little more than
equivocal capsules of indeterminate meaning, waiting to be filled by the
understandings and expectations of current generations as identified by the High
Court, any real distinction between liberal interpretation and open progressivism will
be extremely tenuous. Such a distinction will lie, if anywhere, largely in the fact that it
will be more difficult under such approaches as that of McHugh J to erect
constitutional conceptions that are not directly attributable to some specific piece of
constitutional language. An example would be the creation of further implied rights in
such directions as equality.33 It is with this type of open-textualism that one reaches
the level of what might be termed 'strong' progressivism, whether or not those
enunciating it have fully anticipated or would endorse its potential in this direction.
This is a term that also may be applied to the two further variants of progressivism
now considered, and it is this strong progressivism—and its place in the minds of the
Founders—that is the subject of this article.34
A step further into the realm of strong progressivism lies what might be termed the
'extrapolatory' approach classically deployed by Deane J in association with his 'living
force' analysis. Under this approach, contentious, highly generalised constitutional
intentions ostensibly are deduced from the Constitution as a whole and the
circumstances surrounding Federation, and from these are extrapolated such desired
primary premises as that the Constitution embodies the central doctrines of the
common law, together with the equally desired secondary proposition that the
Constitution derivatively contains, for example, a right of equality.35 The language of
intention as used within this interpretative genre essentially is a device for the
development of a progressivist judicial position that largely is unconfined by the
requirement for textual support inherent in the approach of those such as McHugh J.
Finally, one comes to the bald, if straightforward, progressivism espoused by Kirby
J, according to which it is the simple duty of the Court to read and re-read the
Constitution in the light of contemporary circumstance, without any necessity to
support what essentially are conclusions of policy by recourse to implausibly ascribed
intentions on the part of the Founders. Even Kirby J acknowledges that the text of the
Constitution will impose significant limits upon the course of such progressivism,36 but
if Australian legal history reveals anything, it is that constitutional text is highly
manipulable.
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32
See the cases cited above n 24.
33
See Leeth v Commonwealth (1992) 174 CLR 455.
34
The term 'strong progressivism' is used accordingly throughout this article.
35
See Leeth v Commonwealth (1992) 174 CLR 455, 481–7 (Deane and Toohey JJ).
36
See the cases cited above n 22.
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Progressivism and founders' intent
In these circumstances of increasing judicial espousal of one or other of the strong
versions of progressivism, it is entirely natural that corresponding attempts will be
made by its proponents to furnish it with an acceptable theoretical base. Indeed the
chief difficulty facing progressivism is the lack of an immediately obvious theoretical
platform justifying its usage. In the absence of such a platform, the charges that
progressivism simply is anti-democratic (on the basis that it usurps the power of
popular amendment under s 128) and anti-constitutional (on the same grounds) are
plausible ones, and the methodology easily is presented merely as an unprincipled
series of decisions rendered according to the policy preference of the individual judge,
the very charge so devastatingly levelled against the first High Court by Isaacs J in the
joint judgment in the Engineers Case.37
It is in this context that progressivist judges and commentators have begun to claim
an intentionalist lineage for progressivism. As stated earlier, if the Founders actually
intended that the Constitution be interpreted progressively the claims of intentionalism
can be accorded little weight, while progressivists can argue that they are doing no
more than giving effect to the Founders' wishes. Such a claim has long been something
of a staple of progressivist literature in the United States.38 It thus hardly is surprising
that the two unequivocal judicial exponents of progressivism cited above, Deane J and
Kirby J, together with McHugh J as an at least occasional judicial apologist for a
method of constitutional interpretation that tends to much the same practical effect as
progressivism, all have based their claims for a progressive style of constitutional
interpretation to some extent upon the assertion that such an interpretative
methodology is firmly based in the interpretative intentions of the Founders.
So much is immediately and strikingly obvious of the comments of Deane J in
Theophanous, where he elevates Andrew Inglis Clark to the status of a super-Founder,
and attributes a (disputable) progressivist version of Inglis Clark's views on
constitutional interpretation to the Founders as a whole.39 Paradoxically, therefore,
Deane J's 'living force' progressivism, with its dismissal of the Convention Debates and
excoriation of the 'dead hand of the past', draws much of its theoretical validity from
its assertion of a progressivist interpretative intention on the part of the Founders. The
intermittent open-textualism of McHugh J is similarly dependent upon the Founders'
intent. His argument, as expressed in such decisions as Wakim40 and Eastman,41 seems
essentially to be that the Founders, mindful of the march of history, purposely filled
the Constitution with highly generalised expressions of which they fully intended
future generations to make what they would. Once again, a key component of
McHugh J's argument thus is the proposition that the Founders intended this
progressive approach to constitutional interpretation, with specific reference at one
point being made to some useful comments of Sir John Downer from the Debates of
the Convention at Melbourne in 1898.42 Similarly, in the case of Kirby J, the articulation
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37
(1920) 28 CLR 129, 145.
38
See, eg, Paul Brest, 'The Misconceived Quest for the Original Understanding' (1980) 60
Boston University Law Review 204, 215–6.
39
Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, 168–73 (Deane J).
40
Re Wakim; ex parte McNally (1999) 198 CLR 511, 551–553 (McHugh J).
41
Eastman v The Queen (2000) 203 CLR 1, 40–51 (McHugh J).
42
Ibid 41.
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even of radical progressivism is given a vague intentionalist pedigree, with his Honour
carefully observing not only that the Founders had no power to project their
constitutional wishes and expectations indefinitely into the future, but also that '[t]he
makers did not intend … [to do so]'.43
Corresponding efforts have been made by progressivist and quasi-progressivist
commentators. For example, writing after his retirement as Chief Justice, Sir Anthony
Mason observed of an 'evolutionary' (ie a moderately progressive) interpretation of the
Constitution that it was based upon the notion that the Founders intended that at least
parts of the Constitution would 'evolve' over time, on this occasion citing Alfred Deakin
himself in support.44 Kirk, also writing in support of a moderate version of
progressivism that he terms 'evolutionary originalism', cautiously observes that it
cannot be pre-supposed that the Founders intended the application of a 'purely
originalist approach',45 and draws upon the Convention Debates to suggest that at
least Isaacs, Higgins and Cockburn might have acknowledged the possibility and
'perhaps the desirability' of a wider approach.46 Crawford has suggested that the
Founders may have been quite comfortable with the type of open-textualism later
advanced by McHugh J 'on the basis that the text deliberately left room for expansion
and development to meet future needs.'47 Donaghue, in doubting that the Founders
were strict originalists, cites the comments of Downer in the Convention Debates as
evidence of contemporary support for a wider interpretative approach,48 while
Thomson refers to the comments of Isaacs in pondering whether the 'original intention
may itself indicate that (judicial) interpreters are not to be confined to the framers'
intentions and meanings.'49 Unsurprisingly, these attempts to furnish progressivism
with an acceptable historical and intentional pedigree have not met with the approval
of commentators more tolerant of intentionalism. Craven,50 Patapan51 and (implicitly)
Goldsworthy52 all look askance at any suggestion that the Founders intended that the
Constitution be interpreted from a progressivist perspective.
It thus is apparent that the intentionalist credentials of progressivism are an
important component in the wider debate over that constitutional methodology. It
should be noted that, thus far, judicial and extra-judicial statements upon this issue
have not been grounded in any real degree of detailed historical analysis. Rather, they
have been much more shallowly based, on general historical impression (Kirby,
Craven); isolated historical instances (Deane, McHugh, Donaghue, Mason, Thomson)
or relatively limited analyses of historical materials (Crawford, Kirk). What is
attempted here is a rather deeper foray into a number of historical resources, with the
first of these being the Convention Debates.
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43
Re Wakim; ex parte McNally (1999) 198 CLR 511, 600 (Kirby J).
44
Mason, above n 3, 53.
45
Kirk, above n 1, 358.
46
Ibid.
47
James Crawford, 'The Legislative Powers of the Commonwealth' in Greg Craven (ed), The
Convention Debates 1891–1898: Commentaries, Indices and Guide (1986) vol vi 113, 123.
48
Donaghue, above n 2, 139.
49
James Thomson, 'Principles and Theories of Constitutional Interpretation and
Adjudication' (1982) 13 University of Melbourne Law Review 597, 606 n 39.
50
See Craven, above n 9, 221–2.
51
See Patapan, above n 9, 231–3.
52
See, generally, Goldsworthy, above n 3.
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THE CONVENTION DEBATES53
Any analysis of the Convention Debates on the issue of progressivism54 needs to begin
with the identification of a number of what might be termed 'structural' considerations
which should be regarded as militating against any too-ready assumption that the
Founders favoured progressive (or at least strongly progressive) interpretation of the
Constitution. These considerations do not as such prove that the Founders were
opposed to progressivism, but do pose a threshold of plausibility that must be crossed
by modern-day historical apologists for that phenomenon.
The Convention Debates—structural considerations
The first of these considerations is that it is not unreasonable to assume in respect of
any legislative document that, in the absence of strong contrary evidence, those who
framed it regarded that document as broadly dispositive, in the sense that its terms
were to be applied to circumstances, persons and things according to the intentions of
the drafters as conveyed by the language they employed, and not by reference to the
unspecified insights of future interpreters. Such is the standard approach to the
interpretation of ordinary Acts of Parliament.55 True, the circumstances of
constitutions are special, and those of the Australian Constitution very special indeed,
but the rebuttable presumption that the Founders meant what they meant and meant
what they wrote is a fair starting point.
Second, and following from this, the Commonwealth of Australia Constitution Act 1900
is an Act of the Imperial Parliament, albeit an unusual example of such an Act. The
ordinary rules for the interpretation of Imperial Acts were well known to the Founders
as embodying a general approach of textual intentionalism,56 and thus were highly
unsympathetic to a progressivist methodology, notwithstanding the accepted doctrine
that constitutions (and especially constitutional powers) were to be interpreted
'broadly'.57
Third, the overwhelming determination of the Founders in respect of the High
Court was that it should be the custodian of federalism, and crucially, that it should
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53
The Convention Debates are collected in the following volumes, and are referred to here as
follows:
National Australasian Convention, Official Record of Proceedings and Debates (Sydney, 1891)
(Convention Debates, Sydney, 1891);
National Australasian Convention, Official Record of Proceedings and Debates (Adelaide,
1897) (Convention Debates, Adelaide, 1897);
Australasian Federal Convention, Official Record of the Debates (Sydney, 1897) (Convention
Debates, Sydney, 1897); and
Australasian Federal Convention, Official Record of the Debates (Melbourne, 1898)
(Convention Debates, Melbourne, 1898).
54
The parts of the Debates most closely analysed here are those most likely to contain
discussion concerning the interpretative role of the High Court: that is, the debates
concerning the Judicature Chapter, which mainly took place at Melbourne in 1898; debate
on the amendment clause; and debate on the general resolutions both at Sydney in 1891
and at Adelaide in 1897.
55
As expressed in the Sussex Peerage Claim (1884) 11 Cl & F 85 and applied by the first High
Court in Tasmania v Commonwealth (1904) 1 CLR 329, 338–9 (Griffith CJ).
56
Ibid; and see Kirk, above n 1, 344; cf Donaghue, above n 2, 153.
57
R v Burah (1878) 3 App Cas 889.
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protect the states.58 This notion of the Court as on-going constitutional protector of the
states, together with the Founders' constant concern to protect states' rights under the
Constitution, is difficult to reconcile with any vision of the same Court as a
progressivist entity that can decide which aspects of the Constitution (including those
protective of the positions of the states) are or are not of contemporary relevance.
Fourth, the Founders' determination that the Constitution not be the subject of
excessively easy amendment, and in particular that no alteration of the Constitution
should take place without popular endorsement by the electors of both the
Commonwealth and the states,59 obviously sits uncomfortably with any argument that
they cheerfully contemplated an interpretative method that effectively would comprise
on-going, extensive judicial adjustment of the Constitution.
Fifth, the entire approach of the Founders to the drafting of the Constitution,
involving as it did a long drawn out, fiercely debated, pain-staking and sometimes
painful series of attempts to formulate constitutional language applicable to the raft of
issues facing federating Australia, does not readily suggest a group of legislators
comfortable with the idea that their hard-won concessions and compromises could be
judicially revised.
Finally, the essentially progressivist idea that the Constitution produced by the
Founders represents little more than series of generalised guidelines for the future60
clearly is over-stated in the face of the reality of the text. Putting aside the necessarily
broad expression of the Commonwealth's legislative powers—and even here, 'foreign
corporations, and trading or financial corporations formed within the limits of the
Commonwealth'61 clearly is a quite different power in spirit than one simply with
respect to 'corporations'—much of the Constitution is drafted in a degree of detail that
seems to preclude extensive judicial supplementation.62
The result is that any analysis of the Debates themselves with a view to
demonstrating on the part of the Founders a predilection towards progressivism must
be undertaken against this rather less than propitious background. In particular, the
significance of isolated statements which might be thought to favour such a conclusion
must be carefully assessed within this wider historical and conceptual framework.
The Convention Debates—general impressions
What, then, are the general impressions to be drawn from the Debates in this context?
The first broad point must be that there are indeed a number of contributions from
individual Founders reflecting upon the future role of the High Court in the
interpretation of the Constitution, and doing so in a manner that reveals at least some
element of progressivist thought. Previous considerations of the Debates on this point
have not been particularly detailed, and sometimes have focused upon glancing
comments that were not specifically directed to the issue of constitutional
_____________________________________________________________________________________
58
See below nn 84–6 and accompanying text.
59
See, eg, O'Connor, Convention Debates, Adelaide, 1897, 58; Isaacs, Convention Debates,
Melbourne, 1898, 717.
60
See above nn 13–29 and accompanying text.
61
Constitution, s 51(xx).
62
For example, most of Chapter I of the Constitution, with the arguable exception of parts of
s 51 itself, in no sense resembles a mere constitutional blueprint.
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methodology.63 However, a small but significant group of Founders did explicitly
address the particular question of constitutional interpretation, including among their
number Dobson,64 Downer,65 Symon,66 Glynn,67 and Barton.68 Overwhelmingly, these
comments were made in the context of discussion of what was to become the
Judicature Chapter of the Constitution during the Melbourne session of the Convention
in 1898, although there also were isolated comments during the debate on the general
resolutions at both Sydney in 1891 and Adelaide in 1897, and one important
intervention (that of Glynn) came during debate on the amendment clause at
Melbourne. Admittedly, most of these comments were confined, and their exact import
often uncertain. Nevertheless, at least Downer, Isaacs and Symon each made
significant interventions that might be regarded as furthering the historical claims of
progressivism, while Glynn made a little-known but important speech in precisely the
opposite direction. All of these major contributions are analysed in detail below.69
A second observation is that virtually all of the 'progressivist' contributions from
the Debates bear the very obvious mark of Lord Bryce and his near adulation of the
Supreme Court of the United States and its great Chief Justice John Marshall.70 Bryce
regarded the Supreme Court as the chief and benevolent means of constitutional
amendment in the United States, elevating Marshall to the status of 'a second maker of
the Constitution', and referring rapturously to his 'majestic intellect' and the 'elevation
of his character', while praising his judgments for their 'philosophical breadth' and
'luminous exactness'.71 To Bryce, however much Americans might 'shut their eyes…
and conceal the reality of change under the continued use of time-honoured phrases',72
it was the Supreme Court that directed the constitutional future of the United States.
The general influence of Bryce upon the deliberations of the Conventions is well
known,73 but his markedly progressivist views in relation to the United States
Supreme Court clearly affected the mind-set (or at least the rhetoric) of some of the
Founders. Echoes of Bryce are particularly obvious in the contributions of Symon (who
likewise eulogises Marshall for introducing judicial flexibility into the United States
Constitution),74 Isaacs (who singles out for praise not only Marshall but also Jay and
_____________________________________________________________________________________
63
See, eg, the references in Kirk, above n 1, 358 n 256. The comments there referred to of
Higgins, O'Connor and Barton are of no direct relevance to methodologies of constitutional
interpretation.
64
Convention Debates, Adelaide, 1897, 937. Dobson's comments are not pertinent to the issue
of progressivism.
65
Convention Debates, Sydney, 1891, 476; Convention Debates, Adelaide, 1897, 938; Convention
Debates, Melbourne, 1898, 274–8.
66
Convention Debates, Adelaide, 1897, 129, 984; Convention Debates, Melbourne, 1898, 271–2,
344–5.
67
Ibid 737–40.
68
Convention Debates, Adelaide, 1897, 25. Baker's comments do not touch upon progressivism.
69
See below nn 87–114 and accompanying text.
70
See James Bryce, The American Commonwealth (2nd ed, 1889) 267–8, 363–8, 373–5.
71
Ibid 374–5.
72
Ibid 364.
73
John La Nauze, The Making of the Australian Constitution (1972) 18–19.
74
Convention Debates, Melbourne, 1898, 344.
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Storey)75 and Downer (who also is deeply impressed by the contribution of
Marshall).76
A third general point is that the existence of what amounts at least to progressivist
tendencies on the part of some of the leaders among the Founders undeniably is
striking, particularly when they are first assembled together from out of the swirling
depths of the Debates. Indeed, the existence of these statements in the face of the
negative structural considerations identified above, and against traditional
assumptions concerning the interpretative expectations of the Founders, only serves to
emphasise—even to the most dedicated originalist—their somewhat singular contents.
Committed literalists might be even more off-put: there is remarkably little evidence in
the Debates that the Founders were committed to a strict Engineers-style literalism. On
the contrary, not only those Founders seemingly inclined towards some version of
progressivism,77 but also a number of others,78 appeared to envisage a style of
constitutional interpretation that drew heavily upon the spirit of the Constitution, and
was not confined to the four squares of the document itself.
All of these general observations might be regarded as tending in the direction of
suggesting that the Debates as a whole have a progressivist flavour. Other equally
general factors, however, undermine any such conclusion. First, as will be seen, while
collected together the arguably progressivist statements in the Debates seem to have a
certain mass, they are in context vastly less impressive. The somewhat depressing truth
from a lawyer's perspective is that the judicial provisions of the Constitution as a whole
were of relatively limited interest to the Founders: Deakin was later to observe that
they were in 'an even more imperfect form' than their financial equivalents.79 The
result is that, notwithstanding the fascination of the present High Court with all
aspects of Chapter III, discussion on the whole topic of the judiciary throughout the six
fat volumes of the Debates does not represent much more than 250 out of their around
6000 pages. Even within this limited debate, only three out of the 78 delegates who
served in the Conventions between 1891 and 1898 made interventions that contain
even a serious hint of progressivist tendencies. Were all of these interventions to be
combined, they might comprise a single page of the debates. No progressivist
contribution can be discerned on the part of such leading and well-informed members
of the Convention as Barton, Griffith, Clark, Deakin (remarkably, in view of his later
comments on the Judiciary Bill),80 O'Connor, Higgins, Wise or Quick. The statements
fondly quoted out of the Debates by modern-day progressivists are, in terms of
representativeness, a drop in the ocean.
A further general note of caution that must be sounded in relation to these
statements concerns two issues of context. First, as will be seen, virtually all occurred
within debates where those making them were critically concerned to stress the
importance and claims of the future High Court with a view to protecting it against
those who would reduce its status. Thus, the apparently progressivist statements of
_____________________________________________________________________________________
75
Ibid 283.
76
Convention Debates, Sydney, 1891, 476; Convention Debates, Melbourne, 1898, 275.
77
See, especially, Symon, Convention Debates, Melbourne, 1898, 344–5.
78
See, eg, Barton, Convention Debates, Adelaide, 1897, 25; 953–6; Reid, Convention Debates,
Melbourne, 1898, 272.
79
Commonwealth, Parliamentary Debates, House of Representatives, 24 June 1903, 1340.
80
As to which see below nn 154–68 and accompanying text.
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Downer81, Isaacs82 and Symon83 all were made in support of the High Court during a
rather tense debate over the desirability of its permanent constitutional establishment,
which included considerable discussion as to the likely relative merits of the Court, the
Privy Council and the state Supreme Courts. The consequence of all this is that there
was an obvious potential for supporters of the Court to exaggerate the centrality of its
role. Secondly, and following from this, their context imparts to each of these
statements the profound imprecision inherent in oratory: while they may well be
progressivist in tone, it typically is difficult to determine exactly what level of
progressive constitutional interpretation is being advocated, and, in particular,
whether they are intended to convey much more than an endorsement of what today
would be termed the technique of connotation-denotation.
Finally, these strands of progressivism from the Debates need to be placed firmly in
the context of those matters concerning the High Court that undeniably were a subject
of fundamental interest and constantly recurring discussion by the Founders.
Outstanding among these was the near obsession of the Founders that the High Court
should act as a guardian of federalism and the states, a matter beside which any hint of
tolerance for progressivism fades into insignificance.84 It was this unqualified
determination that the High Court should safeguard states' rights, a determination
that, as has been noted, sits uneasily (if at all) with a progressivist methodology, that
constantly was articulated by the Founders, including some of those apparently most
inclined towards constitutional activism by the Court. Indeed, it was this primary
conception of the Court as upholder of the federal balance that produced such
embarrassingly unfashionable speculations in the Debates as those concerning the
future capacity of the Commonwealth to stack the High Court bench in its own
interest,85 and the potential pro-Commonwealth bias of High Court judges.86 Thus, if
the Debates contain hints of progressivism, and they do, they veritably celebrate the
High Court as protector of the states, and the relative importance of these two topics in
the minds of the Founders needs to be fully appreciated in appreciating the role
envisaged by them for the Court. All of these broad considerations need to be kept in
mind in assessing the weight and meaning of the individual contributions now
addressed.
The Convention Debates—major interventions
When assertions of a progressivist intention on the part of the Founders are made,
perhaps the most often cited Convention delegate is Sir John Downer.87 The relevant
comments occurred during a speech against an amendment to what was to become
_____________________________________________________________________________________
81
Convention Debates, Melbourne, 1898, 275.
82
Ibid 283.
83
Ibid 344–5.
84
See, eg, Barton, Convention Debates, Adelaide, 1897, 25; Barton, Convention Debates,
Adelaide, 952-3; Reid, Convention Debates, Adelaide, 1897, 271–2; Trenwith, Convention
Debates, Adelaide, 1897, 335–6; Dobson, Convention Debates, Melbourne, 1898, 937; Downer,
Convention Debates, Melbourne, 1898, 274–5; Symon, Convention Debates, Melbourne, 1898,
297.
85
See, eg, Higgins, Convention Debates, Melbourne, 1898, 279; Carruthers, Convention Debates,
Melbourne, 1898, 323.
86
See, eg, Kingston, Convention Debates, Melbourne, 1898, 273.
87
See, eg, Donaghue, above n 2, 139; Eastman v The Queen (2000) 203 CLR 1, 41 (McHugh J).
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Were the Founders Progressivists?
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s 71 of the Constitution, proposed by the Legislative Council of South Australia. The
basic thrust of the amendment would have been to make the continued existence of the
High Court (and indeed, the subsistence of significant portions of the judicial
settlement contained in Chapter III) dependent upon the will of the Commonwealth
Parliament.
After an entirely typical defence of the High Court on the grounds that it would be
a principal bulwark of states rights,88 Downer went on to stress the dignity and
importance of the Court by characterizing its judges as:
[T]he men who will have the greatest part in forming this Commonwealth … although
we form it in form, they form it, to a large extent, in substance. With them rest the vast
powers of judicial decision, in saying what are the relative functions of the
Commonwealth and of the States. With them rest the interpretation of intentions which
we may have in our minds, but which have not occurred to us at the present time. With
them rests the obligation of finding out principles which are in the minds of this
Convention … and applying them to cases which have never occurred before, and which
are very little thought of by any of us.89
After re-emphasising his principal theme of the High Court as protector of the states,90
Downer went on to assert the inevitability of constitutional unclarity and the
consequent need for judicial interpretation, observing that 'there may be some
circumstances for which, with all our ingenuity, we shall be unable to provide.'91 In the
meantime, Downer believed 'we have to do the best we can to make matters so clear
that there need be no necessity to go to courts.'92
What is one to make of this contribution? Clearly, it represents a relatively fluid
approach to constitutional interpretation, and on its strength constitutionalists
prepared at least to flirt with progressivism such as Donaghue and (on occasions)
McHugh J93 are inclined to identify Downer as some form of proto-progressivist. A
thorough analysis of his words, however, reveals the weakness of such a claim. In the
first place, Downer's speech is heavily intentionalist in flavor. He speaks of the Court
interpreting the 'intentions' of the Founders, twice refers to what the Founders had in
their 'minds', and again to the 'thoughts' of the Founders. Whatever else Downer was
contemplating, it apparently was none of the stronger versions of progressivism,
divorced as they are from genuine historical intent. Consistently with this, what
emerges most plausibly from Downer's words is not support for strong progressivism,
but a willingness to embrace the relatively uncontroversial technique of connotation–
denotation. This seems the most sensible rendering of his reference to 'finding out the
principles' and 'applying them to cases which have not occurred before', words which
appear logically to be a paraphrase of his own previous rather opaque reference to
interpreting intentions which had not yet occurred. On this analysis, Downer is no
more a progressivist than any High Court judge who has applied the connotation–
denotation distinction.
_____________________________________________________________________________________
88
Convention Debates, Melbourne, 1898, 274.
89
Ibid 275.
90
Ibid 276.
91
Ibid 278.
92
Ibid.
93
See Donaghue, above n 2, 139; Eastman v The Queen (2000) 203 CLR 1, 41 (McHugh J).
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This conclusion is reinforced by other factors. Downer's comments quite literally
are bracketed by his strong (and habitual) references to the High Court as
indispensable guardian of the states, a position which (as has been noted)94 does not sit
at all easily with one of strong progressivism, though it certainly is consistent with a
moderate application of connotation–denotation. Perhaps most tellingly of all, the
plausibility of Downer's speech at Melbourne in 1898 as a progressivist apologia is
seriously undercut by an overlooked contribution made by him at the Sydney
Convention in 1891. There, in arguing for an enhanced right of appeal from the High
Court to the Privy Council, Downer revealed a far less benign view of the Court as
constitutional interpreter:
it occurred to me that if the federal judicature were the only tribunal to decide finally
what authority the federal government had, then the federal parliament might go beyond
what was contemplated—beyond the provisions of the statute creating it, and by the
power of judge-made law and judicial construction extend the original intention and the
ambit of jurisdiction, as undoubtedly Chief Justice Marshall did in America, as it
happened in that case, to the infinite benefit of the republic.95
Notwithstanding the obligatory flattering reference to Chief Justice Marshall, which
is itself strictly confined to the particular circumstances of the United States, Downer's
remarks plainly are suspicious, rather than supportive of High Court constitutional
activism. Unsurprisingly in view of the generally states-protective positions taken by
him during the two Conventions, he emerges in this passage as particularly intolerant
of progressive interpretation that would operate against the Court's fulfilment of its
role as guardian of the states. Clearly, when this earlier contribution by Downer is
placed beside his comments at Melbourne, their already thin credentials as a
declaration of strongly progressivist inclination are stretched still further.96
If Sir John Downer is not to be made to carry the banner for progressivism at the
Conventions, the next most logical choice must be Sir Isaac Isaacs, whose statements at
the Melbourne session of the Convention sometimes are referred to in this connection
as betraying a more fluid approach to constitutional interpretation.97 Again speaking
against an amendment proposed by the Legislative Council of South Australia to the
forerunner of s 71 that was highly antipathetic to the status of a future High Court, and
within a debate where that institution was the subject of unflattering comparison both
to the Privy Council and the state Supreme Courts, Isaacs was at pains to stress the
centrality of the Court to the whole scheme of Federation in the following terms:
We are taking infinite trouble to express what we mean in this Constitution; but as in
America so it will be here, that the makers of the Constitution were not merely the
Conventions who sat …but the judges of the Supreme Court. Marshall, Jay, Storey, and
all the rest of the renowned Judges who have pronounced on the Constitution have had
just as much to do in shaping it as the men who sat in the original Conventions.98
It is quite clear from this statement that Isaacs was well aware and admiring of the
amplificatory constitutional work of the United States Supreme Court, and had a lively
appreciation of the undeniable reality that the shape of the Australian Constitution
_____________________________________________________________________________________
94
See above nn 85–7 and accompanying text.
95
Convention Debates, Sydney, 1891, 476.
96
This is quite consistent with views expressed by Downer during debate on the Judiciary
Bill; see below n 197 and accompanying text.
97
See Kirk, above n 1, 358.
98
Convention Debates, Melbourne, 1898, 283.
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Were the Founders Progressivists?
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would be strongly influenced by judicial interpretation. His statement is, on its own
terms, rather more strongly progressivist than that of Downer. Nevertheless, to
attempt to treat it as a close ancestor of the radical progressivism of a Deane J or a
Kirby J is to draw a very long bow indeed.
The starting point again must be to place the speech within its context. Isaacs, like
Downer, was seeking to defend the institution of the federal judiciary from those who
sought to downgrade its future and status, and to this end was making every effort to
emphasise its constitutional importance by expansively delimiting its role as
interpreter of the Constitution. The quoted portion of his speech is strongly rhetorical,
markedly so in the case of a Convention delegate much better known for his pedantic
logic than flights of Deakin-esque oratory. In any event, even taking his words at face
value, while Isaacs clearly contemplates an element of dynamism in the process of
constitutional interpretation, there is little to suggest that he had in mind some strong
form of progressivism, as opposed to such less radically expansive constitutional
techniques as connotation and denotation, or perhaps the progressive resolution of
constitutional ambiguity.
Moreover, whatever sympathy is displayed by Isaacs towards progressive
constitutional interpretation, this passage is much more closely directed to the past
American, rather than toward any future Australian, judicial experience. Thus, the
central import of his remarks is not that progressivism is a good (or bad) thing but that,
to the extent that Australian constitutional conditions parallel those of the United
States, some element of progressive interpretation would prove unavoidable. This is an
important point, as on a number of occasions during the Convention Debates, Isaacs
made it very clear that he regarded Supreme Court activism in the United States as the
inevitable consequence of the practical impossibility of amending the United States
Constitution, while also expressing the view that the process for the amendment of the
Australian Constitution would not be similarly frozen.99 Consequently, the plausibility
of Isaacs' comments as an endorsement of progressivism in an Australian context is
seriously reduced when it is understood that they only can be so interpreted if one
accepts that Isaacs regarded the Australian Constitution as beyond amendment in the
same manner as that of the United States Constitution, which he patently did not.100
Consequently, while Isaacs obviously discloses some tolerance towards a
progressive approach to constitutional interpretation, particularly in an American
context, his speech to the Convention certainly does not reveal him as a thoroughgoing
progressivist in his conception of the Australian Constitution. This conclusion is
consistent not only with some of his other contributions to the Convention, where he
displayed a certain wariness of the United States Supreme Court as the alleged 'master
of the constitution',101 and as the victim of undesirable manipulation by executive
appointment,102 but also with his complete failure to adopt a progressivist stance
during debate on the Judiciary Bill103 and his adamantine literalism as a High Court
_____________________________________________________________________________________
99
See, eg, Convention Debates, Melbourne, 1898, 283–4; 717–20; 1727–8.
100 See, eg, Convention Debates, Melbourne, 1898, 307; 717–20.
101 Ibid 1727.
102 Convention Debates, Melbourne, 1898, 1727–8.
103 See below n 203 and accompanying text.
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Justice.104 Put simply, Isaac Isaacs is not a plausible candidate as a Founding
progressivist.
The last major contribution to the Debates that arguably could be regarded as
revealing a real commitment to progressivism is that of the highly intelligent and
equally querulous Sir Josiah Symon. Symon was a major participant in debates upon
judicial topics at the Conventions, and was a dedicated admirer of the United States
Supreme Court. In Adelaide in 1897, during the opening debate on Barton's general
resolutions, Symon observed that the High Court would be charged with the
interpretation of the Constitution, '…the most noble as well as the most distinctive
feature of the Constitution of the United States'.105 He went on to praise extravagantly
the work of the United States Supreme Court, in the process drawing a supportive
intervention from Barton.106 In 1898, in Melbourne, Symon pursued a similar theme.
Arguing strongly against any extended right of appeal from the High Court to the
Privy Council, Symon approvingly quoted Bryce on the work of Chief Justice Marshall:
That admirable flexibility and capacity for growth which characterize it (the American
Constitution) beyond all other rigid or supreme constitutions is largely due to him, yet
not more due to his courage than to his caution.107
Symon had already scathingly criticised the Privy Council's interpretation of the
constitutional instrument of the Canadian federation, the British North America Act 1867
(Imp):
they are guided by a more rigid adherence to what is literal, as though they were
interpreting simply an Act of Parliament, rather than by a regard for those great
constitutional principles which throw light upon and assist in the interpretation of a
Constitution.108
Symon's comments are of considerable interest, partly because they reveal a
developed view to the effect that constitutions should be interpreted not 'literally' but
by reference to fundamental principles, and partly because his subsequent comments
in the Commonwealth Parliament during debate on the Judiciary Bill indicate that, of
all the Founders (including Deakin), Symon may have come closest to espousing a
genuinely strong progressivist position.109 Yet even in his case, an analysis of Symon's
contributions to the Convention Debates provides only modest evidence of a
progressivist position.
Thus, while his reference to 'great Constitutional principles' may to a modern ear
herald some of the 'living force' reasoning of those such as Deane J, such terminology
would be equally if not more aptly applied to the implicatory approach of the first
High Court, with its fundamental constitutional doctrines of reserved powers and
implied immunities. Again, Symon's references to the work of the Supreme Court of
the United States in expanding that country's Constitution clearly are highly laudatory,
yet Symon—a notedly belligerent delegate from the small colony of South Australia—
was paradoxically fixated upon the necessity that the High Court rigorously should
protect the interests of the states, a constant theme in his addresses to the
_____________________________________________________________________________________
104 See below nn 228–33 and accompanying text.
105 Convention Debates, Adelaide, 1897, 129.
106 Ibid 129.
107 Convention Debates, Melbourne, 1898, 344.
108 Ibid 344.
109 See below nn 171–5 and accompanying text.
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Convention.110 Consequently, whatever else Symon may have believed concerning the
latitude to be accorded the High Court in constitutional interpretation, it is very
difficult to imagine that in 1898 he would have countenanced a progressively-inspired
diminution of state powers of the type accomplished in such decisions as the
Tasmanian Dams Case. Finally, Symon's comments, like those of Downer and Isaacs, are
heavily conditioned by their context: he was vitally concerned to limit appeals from the
High Court to Privy Council, and correspondingly disinclined to deprecate that
Court's future constitutional role.
Pausing here, it may be observed that, after an assessment of the contributions to
the Convention Debates by the three principal candidates for designation as a
progressivist Founder, the argument that the Debates disclose a significant
progressivist agenda is desperately weak. Neither Downer, Isaacs nor Symon
confidently may be pointed to as a strong progressivist on the basis of their speeches to
the Convention. As demonstrated, all of their speeches are subject to external and
internal factors that seriously undercut their credentials as expositors of progressivism.
Beside this conclusion also must be set the utter lack of statements sympathetic to a
progressive methodology by such key figures as Barton, Griffith, O'Connor and even
Inglis Clark and Deakin. Finally, it is somewhat striking that those searching for a
historical basis upon which to ground progressivism have overlooked a highly
significant contribution to the Debates that is sternly critical of any move by the Court
in that direction.
This was the contribution at Melbourne in 1898 by the Galway-born South
Australian delegate Patrick McMahon Glynn. Interestingly, unlike the other speeches
referred to here, this was delivered not during debate upon the judiciary clauses of the
Constitution, but on its amendment provision. In other words, progressivism was being
considered not primarily as a judicial activity but as a potential means of altering the
Constitution, which is of course the reason for its fundamental constitutional relevance.
Glynn's essential argument was that unless the Australian Constitution were sufficiently
flexible on the point of amendment, the High Court inevitably would fill the
constitutional vacuum thus created by the making of judicial amendments. He based
his argument closely upon American experience, and in so doing was far less
adulatory of the Supreme Court and Chief Justice Marshall than many of his
colleagues. Thus, Glynn asked:
What will be the result if we do not make more elastic provision for the amendment of
the Constitution? We are creating a Judiciary which will become legislators.111
Referring to the activities of such judges as Marshall in the 'expansion' of the
Constitution 'necessitated by the changed conditions of the people', Glynn described
them as '…manifest evils of the difficulty of the restricted power of amendment.'112
There must have been some grinding of teeth in the Bryce-soaked Convention when
Glynn went on to cite Jefferson's famous critique of the American federal judiciary
'…in the enlargement of its powers, advancing with noiseless steps, like a thief, over
_____________________________________________________________________________________
110 See, eg, Convention Debates, Adelaide, 1897, 129; Convention Debates, Melbourne, 1898, 271–
2; 1723.
111 Convention Debates, Melbourne, 1898, 739.
112 Ibid.
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the field of jurisdiction.'113 Glynn went on to make his own view of judicial
progressivism in a specifically Australian context crystal clear:
We ought not to create the evil of making the Judges not merely interpreters, but the
extenders of the Constitution, and we ought to give the Constitution such a degree of
elasticity as will render it capable of being moulded to the changed conditions as time
goes on, and prevent the dangerous alternative of judicial expansion.114
Glynn's contribution quite obviously represents an attack on progressivism in terms
vastly stronger and clearer than any of the speeches supposedly supportive of that
approach. Thus, there can be no question that Glynn is unequivocally opposed to a
future progressive High Court, and that he rejects the precedent of a constitutionally
active American Supreme Court. Indeed, his contribution is such a classical
repudiation of progressivism that, notwithstanding his penchant for elaborate
historical allusion, it would not seem out of place if uttered within contemporary
Australian constitutional debate. It is true, of course, that Glynn's speech is colourful
and rhetorical, and just as Symon and Downer arguably inflated the importance of the
Court with a view to protecting the judicial provisions of the Constitution Bill, so it is
arguable that Glynn magnified his fears as to its future mode of operation in the
interest of securing a more flexible power of amendment. What remains striking about
his contribution, however, is that even allowing for an element of tactical exaggeration,
he clearly regarded judicial progressivism as an eventuality to be avoided at all costs.
The Convention Debates—conclusions
The general conclusion concerning evidence of progressivism to be derived from the
Convention Debates therefore must be that any such evidence is extremely thin.
Certainly, there is no material to support a view that the Debates reveal a significantly
progressivist mindset among the Founders, or even among a substantial number of
them. The most that can be said is that a small number of Founders make relatively
isolated statements which, when viewed in isolation, might be regarded as containing
appreciably progressivist strands. However, when these statements are analysed
carefully and in context, they are at best highly equivocal on the point of
progressivism. Against these ambiguous statements must be placed the brutally clear
anti-progressivism of Glynn.
Perhaps the crucial point in this context is that none of these vaguely progressivist
statements conceivably could be regarded as overcoming the constitutional burden of
proof imposed by the hostile structural considerations previously identified.115 More
than an admiration for the work of John Marshall and imprecise references to 'shaping'
and 'forming' the Constitution would be required to harmonise an adherence by the
Founders to some concept of strong progressivism with their habitual pre-occupation
over such fundamental constitutional imperatives as the protection of the states,
_____________________________________________________________________________________
113 Ibid.
114 Ibid 740. It should be noted that the counsels of Glynn and his allies concerning the need
for a flexible amendment procedure were heeded during the debate on the clause that was
to become s 128. Consequently, that provision as adopted included within it a mechanism
that, at least theoretically, would permit a referendum in the event of a deadlock between
the state and the House of Representatives over a bill for constitutional alteration.
115 See above nn 55-62 and accompanying text.
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maintenance of the federal balance, constitutional alteration by dual popular will and
so forth.116
Of course, this is not to say that the contributions of Downer, Isaacs and Symon do
not involve some element of progressivist constitutional thought. However, what
emerges most clearly from these contributions is far removed from the robust
progressivism articulated in some contemporary judicial and academic quarters.
Rather, the 'progressivist' contributions of the Founders considered here are most
obviously consistent with an interpretative approach that, in its degree of
expansiveness, would excite little comment from any Australian constitutional
observer since Federation. That approach would comprise a recognition that
constitutions are to be read more broadly than other statutes—hardly a controversial
proposition—together with an acceptance of correspondingly generous techniques of
constitutional construction, such as the existence of an implied incidental power, and
the application of the technique of connotation–denotation. The tendency of modern
authorities to discern in the Founders' relatively mundane formulations of a liberal
interpretative approach, the exciting presence of strong progressivism or something
approaching it, is one that is noted at a number of points in this article.117
AFTER THE CONVENTIONS
Writings of the Founders
Perhaps unsurprisingly for a group most of whose members were involved in the
difficult establishment phase of a new nation in the years immediately after
Federation, Australia's Founders produced relatively few reflective pieces that dwelt
upon the arcane process of constitutional interpretation. With one or two clear
exceptions, therefore, there is little to be extracted from their formal post-Convention
writings upon the issue of progressivism.
Typically, the writings of the Founders show no obvious sympathy towards
progressive interpretation by the High Court. Extending the analysis to writing
produced before Federation, neither of the two constitutional primers produced
specifically for the use of delegates to the Conventions—Baker's Manual118and Garran's
Coming Commonwealth119—contain the least advocacy for a progressivist position. The
_____________________________________________________________________________________
116 Ibid.
117 See, eg, the reliance of Deane J (in Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR
104, 168–73) on the work of Andrew Inglis Clark, above n 6; the reliance of McHugh J (in
Eastman v The Queen (2000) 203 CLR 1, 40–51) on the comments of Downer; the reference
made by Sir Anthony Mason to the evolutionary sentiments of Deakin, above n 44; Kirk's
citation of Isaacs, Higgins and Deakin as having displayed elastic approaches towards
constitutional interpretation during the Convention Debates, above nn 45–6; Donaghue's
similar use of the comments of Downer, above n 48; and see the general conclusions drawn
concerning the contents of the Convention Debates, above nn 115–17 and accompanying
text; the conclusions drawn concerning the actual significance on this point of the
comments of Andrew Inglis Clark, below nn 135–41 and accompanying text; and the
comments concerning the inherent limitations of Deakin's remarks made during debate on
the Judiciary Bill, below nn 160–8 and accompanying text.
118 Richard Chaffey Baker, A Manual of Reference to Authorities for the Use of Members to the
National Australasian Convention (1891).
119 Robert Garran, The Coming Commonwealth (1897) 66–7, 152–4.
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great bible of Australian constitutional law, Quick and Garran's Annotated Constitution
of the Australian Commonwealth, written by one of the leading Founders and the
Secretary to the Drafting Committee of the second Convention, is similarly
unsupportive. In a highly conventional analysis, Quick and Garran make the usual
points concerning the need to interpret a constitution broadly and liberally,120 but the
entire emphasis is on the interpretation of the Constitution, having regard to its special
objects, as an Act of the British Parliament.121 No breath of progressivism emerges,
although Sir Robert Garran, after a distinguished career as a servant of the
Commonwealth, later was to be understandably tolerant of the High Court's extension
of Commonwealth power.122 Quick and Groom's The Judicial Power of the
Commonwealth likewise does not contain any hint of progressivism in its analysis of
constitutional interpretation.123
Similar comments may be made of other pieces of sustained writing by the
Founders. Nothing in Higgins' The Australian Commonwealth Bill124 advances the cause
of progressivism. Silent also is Deakin's The Federal Story.125 Cockburn's Australian
Federation126 does not advert to the possibility of progressive interpretation, something
also true of Wise's The Making of the Australian Commonwealth.127 Indeed, the chief
purpose of this litany of disinterest must be to demonstrate that post-Federation
writings by the Founders that are progressively flavoured are very much the
exception, rather than the rule.
This brings us to the case of Andrew Inglis Clark. Inglis Clark appears to be the
only Founder to have written at some length in favour of a form of progressivism.
Despite the fact that he was a not a major figure in the federal movement after the 1891
Convention, and was not even a delegate to the second Convention that met between
1897 and 1898, Inglis Clark has achieved a contemporary constitutional significance
chiefly by virtue of his identification by Deane J in Theophanous as the pre-eminent
figure among the Founders on the issue of constitutional interpretation.128 That
identification was made overwhelmingly on the basis of Inglis Clark's congenial
comments on the process of constitutional interpretation contained in his book Studies
in Australian Constitutional Law published in 1901.129
These comments certainly reveal Inglis Clark as being progressively minded,
although as will be seen, his degree of enthusiasm for that methodology can be greatly
overstated. Unquestionably, Inglis Clark was a passionate admirer of the United States
Constitution and that country's Supreme Court, and his attachment to progressivsm
seems to have been influenced heavily by this fact.130 Inglis Clark's comments
concerning progressivism appear in the context of a long and thoughtful discussion of
_____________________________________________________________________________________
120 Robert Garran and John Quick, Annotated Constitution of the Australian Commonwealth (1901)
793.
121 Ibid 792.
122 Robert Garran, Prosper the Commonwealth (1958) ch xiv 'Development of the Constitution'.
123 John Quick and Littleton Groom, The Judicial Power of the Commonwealth (1904) 126–9.
124 Henry Higgins, Essays and Addresses on the Australian Commonwealth Bill (1900).
125 Alfred Deakin, The Federal Story (ed Herbert Brookes) (1944).
126 John Cockburn, Australian Federation (1901).
127 Bernard Wise, The Making of the Australian Commonwealth 1889–1900 (1913).
128 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, 168–73 (Deane J).
129 Inglis Clark, above n 6.
130 Ibid 24–7.
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judicial interpretation of the Constitution, by no means all of which is progressivist in
tone. During that discussion, for example, Inglis Clark makes numerous
uncontroversial comments concerning the interpretation of the Constitution as a British
statute, and the functioning of constitutional courts of appeal.131
The passages which excite modern progressivists, however, are considerably more
striking. Inglis Clark argued that:
the social conditions and the political exigencies of succeeding generations of every
civilized and progressive community will inevitably produce new governmental
problems to which the language of the Constitution must be applied, and hence it must
be read and construed, not as containing a declaration of the will and intentions of men
long since dead, and who cannot have anticipated the problems that would arise for
future generations 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.132
After referring approvingly to the work of the Supreme Court in the United States,
Inglis Clark concluded by quoting the words of Cooley133 in relation to the American
Constitution, and applying them to its Australian counterpart:
as the people change, so does their written constitution change also: they see it in new
lights and with different eyes; events may have given unexpected illumination to some of
its provisions, and what they read one way before they read in a very different way
now.134
Clearly enough, Inglis Clark's comments suggest a degree of sympathy for
progressivism unparalleled by anything in the Convention Debates, and as such have
been seized upon eagerly by latter day progressivists as historical support for their
position. As Goldsworthy has noted,135 however, a closer analysis of those comments
suggests that Inglis Clark's position was considerably less favourable towards a strong
version of progressivism than those such as Deane J have maintained. In the first place,
Inglis Clark's comments are subject to significant intentionalist qualifications.
Immediately after his much-quoted 'living force' passage, Inglis Clark goes on rather to
spoil the progressivist effect by writing:
But so long as the present possessors of sovereignty convey their commands in the
language of their predecessors, that language must be interpreted by the judiciary
consistently with a proper use of it as an intelligible vehicle of the conceptions and intentions of
the human mind, and consistently with the historical associations from which particular words
and phrases derive the whole of their meaning in juxtaposition with their context. (emphasis
supplied)136
This is the terminology, not of progressivism, but of historically conditioned
intentionalism. Perhaps even more pointedly, in a passage that preceded those quoted,
and one not cited by Deane J in Theophanous, Inglis Clark opined:
_____________________________________________________________________________________
131 Ibid 14–18.
132 Ibid 21.
133 Ibid 25-27. Inglis Clark's reference is to Thomas Cooley, The General Principles of
Constitutional Law in the United States of America (3rd ed, 1898).
134 Ibid 27.
135 Goldsworthy, above n 3, 692–3.
136 Inglis Clark, above n 6, 21.
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It has been repeatedly stated that the fundamental rule for the interpretation of a written
law is to follow the intention of the makers of it as they have disclosed it in the language
in which they have declared the law.137
Again, this is conventionally expressed constitutional intentionalism. Inglis Clark
goes on to consider the application of this rule in the context of unforeseen
developments in terms that likewise are deeply respectful of the historical and
intentional genesis of constitutional terminology:
In many cases it will be perfectly evident that the particular act or the particular set of
circumstances in respect of which the question is to be determined could not have been in
the contemplation of the makers of the law, and therefore it cannot be said, in the strictest
sense of the words, that the makers of the law have expressed any intentions in regard to
the matter. In every such case it becomes necessary to apply to the language of the law a
method or process of interpretation which is usually described as construction, and which
consists in examining the law for the purpose of ascertaining whether it is such as we
may reasonably believe the makers of the law would have regarded as sufficient to
embrace the particular act or set of circumstances in question if it had been foreseen by
them.138
These passages, quite as much part of Inglis Clark's approach to constitutional
interpretation as those cited by Deane J, sit very ill with the claim that Inglis Clark was
a doctrinaire progressivist. On the contrary, they are couched more in the language of
a liberal intentionalist comfortable with the technique of connotation-denotation, and
Inglis Clark's 'progressivist' comments must to this extent be read with extreme
caution. Indeed, on one analysis, they may represent little more than a somewhat
oratorical exegesis of quite pedestrian views in favour of the expansive, but
historically faithful interpretation of constitutional terminology.
Secondly, Inglis Clark quite obviously stresses the primacy of formal constitutional
amendment, as opposed to judicial revision, as a means of altering the Constitution.
Thus, even the most progressivist passage of his work refers to 'the present inheritors
and possessors of sovereign power, who maintain the Constitution and have the power to
alter it' (emphasis supplied).139 Indeed, Inglis Clark's reference to the Constitution as a
'living force' is connected directly to this celebration of popular amendment of the
Constitution. In other words, to Inglis Clark, the living force of the Constitution was
expressed through popular amendment, not judicial alteration. It thus is ironic that his
'living force' imagery should be advanced as a rhetorical device in favour of one of the
cruder forms of judicial progressivism.
The ultimate conclusion to be reached in relation to Inglis Clark, therefore, is that
while he clearly favoured an expansive approach to constitutional interpretation, his
adhesion to some strong form of constitutional progressivism is quite uncertain. While
Inglis Clark clearly would have had little difficulty in stretching the central idea
contained within a Commonwealth power to embrace new developments within its
genre, there ironically is good reason to suppose that he would have looked askance at
the extrapolatory progressivism of his modern-day champion, Deane J. Thus, even
without entering into a debate about Inglis Clark's claim to rank as 'primary architect
of our Constitution'140—as noted, he did not even attend the second Convention, and
_____________________________________________________________________________________
137 Ibid 19.
138 Ibid 19–20.
139 Ibid 21.
140 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, 172 (Deane J).
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Were the Founders Progressivists?
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was highly atypical among the Founders in his depth of attachment to and knowledge
of the United States Constitution141—it is apparent that his work hardly provides a
strong basis for the attribution of a progressivist intent to the Founders.
In fact, arguably the most persuasive evidence in immediately post-Federation
constitutional writing of a tolerance for strong progressivism comes not from among
the ranks of the Founders themselves, but from an academic contemporary. William
Harrison Moore was Dean of Law at the University of Melbourne, and was not deeply
involved in the drafting of the Constitution.142 However, his Constitution of the
Commonwealth of Australia, published in 1902,143 was an authoritative early work on
Australian constitutional law. Writing generally of the judicial power contained in the
Constitution, Harrison Moore observed that the tendency in the Conventions, based on
the benign experience of judicial review in the colonies, had been to exaggerate rather
than to underrate the controlling power of the courts.144 He went on:
In general, the power was regarded with singularly little jealousy or suspicion, a
phenomenon entirely in accord with the tendency of the day to submit to judicial
authority problems which are more economical or political.145
This seems to suggest that Harrison Moore regarded the Founders as conscious
progressivists, although the impression is somewhat undercut by his later, rather
hopeful statement, that alteration of the Australian Constitution would be so easy that
its development would be much less guided by judicial interpretation than had been
the case with the United States Constitution.146
Nevertheless, Harrison Moore was to elaborate upon his theme. Writing towards
the end of his life, and admittedly after having observed nearly thirty years of the
interpretation of the Constitution by the High Court, he was to observe in a strikingly
modern vein that the Constitution 'can be little more than a framework of government
… its vigour lies peculiarly in its acceptance by the people.' 147 He went on to argue
that:
A constitution, brief and allusive, with its background of history, practice and principles
of government, presents to the judiciary a task which, while it is in form the
interpretation of a statute, is in substance comparable with the development of the
common law, wherein the courts are avowed conditores juris.148
In terms that would warm many a modern judicial heart, Harrison Moore
concluded that, in interpreting the Constitution, judges should follow the practice of
the great Marshall and 'mingle with the lawyer's vigour the statesman's breadth of
view'.149
_____________________________________________________________________________________
141 James Thomson, 'Constitutional Authority for Judicial Review: A Contribution from the
Framers of the Australian Constitution’ in Greg Craven (ed) The Convention Debates 18911898: Commentaries, Indices and Guide (1986) 173, 178.
142 La Nauze, above n 73, 271, 287.
143 William Harrison Moore, The Constitution of the Commonwealth of Australia (1902).
144 Ibid 236.
145 Ibid.
146 Ibid 332.
147 William Harrison Moore, 'The Constitution and its Working' in J Holland Rose, P Newton
and E A Berians (eds), The Cambridge History of the British Empire (1933) 455, 474.
148 Ibid.
149 Ibid.
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This notion of the Constitution as little more than a set of guiding principles to be
developed in much the same way as the common law is strikingly and unmistakably
progressivist in a way that even the strongest statements of Inglis Clark, read in
context, definitively are not. Harrison Moore's usefulness in demonstrating a
progressivist intention on the part of the Founders is, however, strictly limited by
two obvious factors. First, he was not himself a 'Founder'. He was not a delegate to
the Conventions, took no part in their debates, and was not directly engaged in the
drafting of the Constitution. His comments concerning the intentions of the
Convention thus are those of an informed academic commentator, but no more.
Certainly, his belief that the Convention was uniformly benign towards the
pretensions of an activist judiciary sits ill with some contributions to the Debates
that already have been noted.150 Secondly, Harrison Moore's advocacy of
progressivism is much stronger in 1933 than in 1902. It is a not unreasonable
inference that his later comments were as much influenced by the actual practice of
constitutional interpretation in years after Federation, and particularly the
continuous expansion of Commonwealth legislative power by the High Court, as by
any conviction as to the intentions of the Founders on the subject.
The conclusion after an admittedly brief survey of some of the more considered
writings of the Founders on the subject of constitutional interpretation therefore
must be that it demonstrates no strong support for a progressivist methodology.
Generally, the Founders' statements on the topic are conservative and unremarkable,
as exemplified in the treatment of Quick and Garran. Only Inglis Clark among the
Founders may be claimed with any degree of plausibility as a progressivist writer.
Yet even that claim has been grossly over-stated, and Inglis Clark's importance as a
framer of the Constitution correspondingly exaggerated. The comments of Harrison
Moore, while interesting and even prescient, shed little light on the state of mind of
the Founders.
The Judiciary Bill debates
Undoubtedly, the debates over the Judiciary Bill introduced into the first session
of the Commonwealth Parliament on 8 March 1902 by the Barton Government
comprise the best hunting ground for progressivist statements by the Founders, as
well as by their close parliamentary colleagues. Indeed, the contrast between these
parliamentary debates and the Convention Debates is quite marked in this respect,
though this is not entirely surprising. First, the hundreds of pages of debate over this
important bill are specifically focused upon the federal judiciary, affording its
functioning a degree of attention that it never received during the Conventions.
Second, after Federation, many of the Founders passed from being a group of
individuals trying to make a Constitution, to being a group of individuals trying to
make a Constitution work. In this context, the potential inconveniences and
difficulties involved in amending the Constitution under s 128 may have struck some
of them with renewed force, and caused them to develop an enthusiasm for at least a
degree of judicial creativity in a constitutional context.
It should be noted at the outset that the tone of the debates upon the Judiciary
Bill is very much set by their contemporary political context. A central purpose of
_____________________________________________________________________________________
150 See, eg, Glynn, above nn 111–14 and accompanying text; and Downer, above nn 87–96 and
accompanying text.
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the Bill was to establish the High Court, and to establish it on a firm basis in terms of
personnel and resources. The Bill was a key measure of the Barton Government, and
the flagship measure of Attorney-General Deakin. As such, it was bitterly attacked
by the opposition forces of the day, both from within Reid's Free Trade alliance, and
the fledgling Labor Party. The chief basis of their attack was the accusation that the
proposals contained in the Bill were outrageously wasteful and extravagant, and
would involve the creation of a High Court the expense and pretensions of which
would be out of all proportion to that body's actual workload and real
importance.151 Within this wider attack were made disparaging comparisons
between the future High Court on the one hand and the Privy Council and the state
Supreme Courts on the other.152 In this fraught context, it was incumbent upon the
supporters of the Bill to stress the indispensability of the High Court to the federal
scheme, together with the overwhelming importance of its future interpretative role,
and this they did with a will. Consequently, just as attacks upon the Court tend to be
over-blown denigrations of it as a 'luxurious' superfluity, so some defences of it tend
rhapsodically to exaggerate its functions. Without discounting them, the more
progressivist contributions to the Judiciary Bill debates need to be read with this
political context in mind. They also need to be set beside such conservative
comments as those asserting the basic role of the High Court as guardian of the
states, comments which are just as common in the Judiciary Bill debates as they were
in the Conventions.153
Deakin's speech introducing the Bill154 undoubtedly comprises one of the most
cited pieces of evidence that the Founders' intent on the point of constitutional
interpretation was progressivist.155 The speech today is widely regarded as one of
Deakin's oratorical masterpieces, as it was by his friends in 1902. His parliamentary
opponents, however, mocked it as exaggerated and over-done. Quick
uncharacteristically poked fun at the speech, saying that Deakin had 'almost
exhausted the federal vocabulary',156 while Reid entirely characteristically sniggered
over Deakin's earnestness.157 The broad tone of the speech is genuinely
progressivist, though as will be seen, not so strongly progressivist as sometimes is
suggested. Deakin's essential theme was that the Constitution is a large canvas,
painted with broad-brush strokes. It thus is best regarded as an outline, with the
function of the Court being to flesh out these bare bones. In so doing, it will be the
particular role of the Court to adapt the Constitution to changing circumstances. As
might be expected, Deakin's speech contains a number of flattering references to the
work of the United States Supreme Court.
The key passage from Deakin's speech probably is the following:
_____________________________________________________________________________________
151 See, eg, the comments of Glynn, Commonwealth, Parliamentary Debates, House of
Representatives, 9 June 1903, 622–8.
152 See, eg, the comments of Glynn, ibid 622–30; and Hughes, ibid 697–704 for examples of
anti-High Court rhetoric.
153 See, eg, the comments of O'Connor, Commonwealth, Parliamentary Debates, Senate, 29 July
1903, 2695.
154 Commonwealth, Parliamentary Debates, House of Representatives, 18 March 1902, 10962–89.
155 See, eg, Kirk, above n 1, 358; Mason, above n 3, 52–3.
156 Commonwealth, Parliamentary Debates, House of Representatives, 9 June 1903, 643.
157 Commonwealth, Parliamentary Debates, House of Representatives, 8 July 1903, 1875–6.
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That Constitution was drawn, and inevitably so, on large and simple lines, and its
provisions were embodied in general language, because it was felt to be an instrument
not to be lightly altered, and indeed incapable of being readily altered; and, at the same
time, was designed to remain in force for more years than any of us can foretell, and to
apply under circumstances probably differing most widely from the expectations now
cherished by any of us. Consequently, drawn as it of necessity was on simple and large
lines, it opens an immense field for exact definitition and interpretation. Our Constitution
must depend largely for the exact form and shape which it hereafter will hereafter take
upon the interpretation accorded to its various provisions. This court is created to
undertake that interpretation.158
Later, enlarging upon his theme, Deakin stressed the role of the High Court in
ensuring the contemporary relevance of the Constitution:
It is as one of the organs of Government which enables the Constitution to grow and to
be adapted to the changeful necessities and circumstances of generation after generation
that the High Court operates. Amendments achieve direct and sweeping changes, but the
court moves by gradual, often indirect, cautious, well considered steps, that enable the
past to join the future, without undue collision and strife in the present.159
Without question, Deakin's speech is a progressively minded exposition of the task
of constitutional interpretation. Similarly, its progressivist rhetoric is notably stronger
than that to be found in any of the contributions in the Convention Debates. Indeed,
Deakin's silence on the issue during the Conventions is somewhat puzzling in light of
the depth of feeling that he reveals here. However, to move from the point that
Deakin's speech falls somewhere within the range of progressivist thought to arguing
that he was a staunch adherent to the strong progressivism of a Deane J or a Kirby J, or
even that he would have been supportive of the open textualism sometimes advanced
by McHugh J, would be highly implausible.
There is, in fact, good reason not to regard Deakin's speech as an espousal of
radical progressivism. Thus, for all its rhetorical breadth, it seems to be aimed at minor
judicial adjustments to constitutional dispositions rather than major revisions.
Probably the clearest indication of this comes when Deakin contrasts the 'direct and
sweeping' changes to be achieved by formal constitutional amendment with the
'indirect, cautious, well considered steps' involving neither 'undue collision or strife'
that will comprise constitutional change through judicial interpretation. Such a
description would be difficult to apply to the progressivist rights agenda of a Deane J,
or the radical progressivism of a Kirby J. A similar impression that Deakin had in
contemplation only judicial expansion of the Constitution that was instrumental and
relatively modest in character is conveyed by the fact that he was prepared to advance
the remarkably mundane argument that such 'elasticity' was defensible on the grounds
that it would be less expensive than the alternative of conducting constant
referenda.160
Much the same sense emerges from two exchanges that occurred between Deakin
and parliamentary critics during his speech. The first was between Deakin and the
Labor representative Conroy, which took place immediately after the passages quoted
above.
Mr Conroy: But we cannot read into the Constitution something which is not there.
_____________________________________________________________________________________
158 Commonwealth, Parliamentary Debates, House of Representatives, 8 March 1902, 10965.
159 Ibid 10967-8.
160 Ibid 10987.
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Mr Deakin: Perfectly true ... 161
Deakin went on immediately to observe of the American Constitution (and by
analogy the Australian) that its 'script is read with the full intelligence of the time, and
interpreted in accordance with the needs of the time',162 but his fundamental response
to Conroy's interjection stands: that which is not already in the Australian Constitution
cannot be placed there by judicial interpretation. The second exchange likewise is
revealing, and took place between Deakin and McDonald, concerning the relationship
between Deakin's espousal of a degree of judicial activism and the necessity for formal
constitutional amendment by referendum:
Mr McDonald: Is the Attorney-General opposed to the referendum?
Mr Deakin: Certainly not; but I am pointing out that by the interpretation of the
Constitution by competent courts, we may secure decisions which will render it
unnecessary to amend, except for specific changes.163
Noticeably in this exchange, Deakin seems to downplay the degree of judicial
activism that he is advocating. Once again, one gains the impression that what he has
in mind is a relatively modest judicial elucidation of the Constitution, and a smoothingout of the Constitution's inevitable rough patches as it emerged from the drafting
workshop of the Convention, rather than a sweeping power of on-going constitutional
revision.
Indeed, as was the case with the comments of such Founders as Isaacs and Downer
at the Conventions, it is worth speculating whether the contribution of Deakin during
debate on the Judiciary Bill really constituted anything much out of the ordinary in
terms of constitutional interpretation, at least when it is placed within its
contemporary political context, stripped of its purely rhetorical flourishes, and
analysed in its entirety, as opposed to being assiduously trawled for signs of
progressivist inclination. In this sense, it is highly arguable that Deakin's remarks do
not go a great deal further than reflecting the interpretative predilections of someone
who believes that the Constitution should be construed broadly, in conformity with
standard British interpretative practice; according to its spirit as well as its text, rather
than its text alone; with the deployment of such amplificatory techniques as the
distinction between connotation and denotation; and with a sensitivity towards
ensuring that, so far as is conformable with its text and spirit, the Constitution should
answer modern needs without recourse to unnecessary referenda. This is much more
the approach of a Griffith J or a Barton J—in whose appointment to the High Court
Deakin was intimately involved—than a Deane J or a Kirby J. Interestingly, there is
some internal evidence to suggest that Deakin may have felt that his speech
introducing the Bill had been somewhat overdone on the point of judicial adaptation
of the Constitution. In his later interventions in the debate he was markedly more
guarded, reflecting upon the judicial function in uncontroversial terms,164 and
stressing the role of the High Court as guardian of the states.165 His speech in reply at
the conclusion of the second reading stage was subdued, and contained no rhetorical
_____________________________________________________________________________________
161 Ibid 10968.
162 Ibid.
163 Ibid 10988.
164 See, eg, Commonwealth, Parliamentary Debates, House of Representatives, 8 July 1903,
1866–7.
165 See, eg, Commonwealth, Parliamentary Debates, House of Representatives, 9 June 1903, 589.
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celebrations of the interpretative role of the Court,166 while his comments at the third
reading contained little more than conventional praise of the work of the United States
Supreme Court.167
In any event, whatever its intended effect, Deakin's speech sparked what probably
was the first sustained debate on constitutional interpretation in Australian legal
history. In some ways, that debate is startlingly modern in its lively appreciation that
there is more than one way to interpret a constitution, much more closely resembling
constitutional discussion of the last decade than the repeated elucidation of literalist
certainties that dominated Australian constitutionalism in the wake of Engineers.
Probably the simplest way to approach this debate is to divide consideration of it
between those who supported (or extended) Deakin's broad vision of the role of the
High Court, and those who opposed it.
Those most strongly committed to the notion of a constitutionally active High
Court were to be found in the Senate. Senator Gould enthusiastically took up Deakin's
theme, arguing that no matter how clear the Constitution might be 'it nevertheless
entails the necessity of interpretation from time to time, and probably at times the
necessity of considerably extending the powers given therein.'168 Referring to
American experience indicating that the idea that the Constitution could be amended
only formally was a delusion, Gould observed 'and so it will be found to be a delusion
in regard to the Commonwealth Constitution as years go by.'169 On any analysis, this
is the rhetoric of progressivism, even if one might pose the same queries as to scale
that were posed in relation to Deakin. However, Gould's progressivism apparently did
not extend beyond a certain point. When asked facetiously (and pointedly) by Labor's
McGregor whether it would be permissible for the High Court simply to 'interpret' out
of existence the Constitution's stipulation that the federal capital should be in New
South Wales, Gould rather lamely replied that the Court would have the power to
adapt the Constitution 'but this adaptation must be kept within certain limits and
certain bounds'.170
Probably the strongest exposition of progressivism within the debate—and
certainly stronger than that of Deakin—came from Sir Josiah Symon. Symon's
comments essentially represent a considerable intensification of the position he had
expressed during the Convention Debates.171 Once again, he approached the issue
from a perspective of near worship of the United States Supreme Court. Symon argued
that the High Court should be composed not of rigid lawyers but of judges who, like
their counterparts in the United States, would 'by the legitimate exercise of the powers
of judicial exposition, make this instrument, without amendment, beneficiently cover
all the advances the Commonwealth might make.'172 In terms reminiscent of McHugh
J, Symon asserted that, following the example of the United States, 'the framers … put
into the Constitution only the fundamental rules and principles' and that 'the
_____________________________________________________________________________________
166 See, eg, Commonwealth, Parliamentary Debates, House of Representatives, 11 June 1903,
838–41.
167 Commonwealth, Parliamentary Debates, House of Representatives, 8 July 1903, 1866–7.
168 See, eg, Commonwealth, Parliamentary Debates, Senate, 29 July 1903, 2818.
169 Ibid.
170 Ibid.
171 See above nn 105–10 and accompanying text.
172 Commonwealth, Parliamentary Debates, Senate, 31 July 1903, 2934.
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Were the Founders Progressivists?
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expansive force of the Constitution within legitimate limits, is exerted through the
calm atmosphere of a judicial tribunal'.173 When Senator Dobson interjected that the
United States Supreme Court dealt in politics rather than law, Symon responded
haughtily that the High Court would be 'dealing with a Constitution and instrument
of government—which no-one pretends is complete in itself, but which merely lays
down broad general principles' and that in interpreting the Constitution a court 'must
be animated … by a far higher and broader apprehension than the mere lawyer who is
dealing with an ordinary Act of Parliament.' Symon's characterisation of such an
approach, derived by reference to the work of the United States Supreme Court, was
that it would be 'statesmanlike'.174 There is no obvious way to understand this
contribution other than as one revealing a commitment to a form of progressivism, at
times resembling the open textualism of McHugh J, at others seeming to be a
forerunner of the extrapolatory approach of Deane J, or the radical progressivism of
Kirby J. Indeed, in his call for United States-style 'statesman' judges, Symon seems a
more plausible (if less romantic and profound) hero for modern day progressivists
than either Inglis Clark or Deakin.175
Symon represents the high-water mark of progressivism in the Judiciary Bill
debate, but his enthusiasm was very nearly matched by that of Senator Harney.
Harney adopted an approach similar to that of Symon (and similarly reminiscent of
the open textualism of McHugh J) in arguing that the Founders had so framed the
Constitution that it was 'moulded in elastic', thus permitting it to expand and adjust at
the hands of the High Court. His view was that the Constitution was composed of
'broad, far-reaching, loosely-termed, abstract political conceptions', and in tones that
certainly would have appealed to Deane J, was 'intended to be the foundation of a
growing tree of rights'. Consequently, the High Court should be composed of judges
who are 'entuned to its high purposes'.176 Again, this undeniably is the language of
high progressivism. Harney was, however, forced to acknowledge some limits to his
favoured constitutional approach. When he continued in his theme that the
Constitution should be consciously developed by the judges, O'Connor—seemingly
concerned that his colleague was allowing his rhetoric in support of the Bill to carry
him away—sharply interjected that this development could only occur in keeping with
the rules of legal interpretation. Harney accepted O'Connor's correction.177
The contributions of Gould, Symon and Harney together comprise the strongly
progressivist content of the Judiciary Bill debate. There are, however, other
contributions that contain some progressivist elements. Naturally, all were made by
parliamentarians supporting Deakin's Bill. In the House of Representatives, Groom
defended the role of the United States Supreme Court, praising it as the 'living voice'
of the Constitution, and arguing that the Australia required a similar institution.178 His
fellow member, Edwards, also supported the notion of a constitutionally active High
Court, but like Deakin seemed to envisage only relatively minor adjustments:
_____________________________________________________________________________________
173 Ibid.
174 Ibid 2934–5.
175 Nevertheless, he somewhat problematically continued to assert the fundamental role of the
High Court as upholder of the federal balance: ibid 2927.
176 Commonwealth, Parliamentary Debates, Senate, 5 August 1903, 3044.
177 Ibid.
178 Commonwealth, Parliamentary Debates, House of Representatives, 11 June 1903, 1128.
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probably, as has been the case in the United States, the decision of the court will in effect
amend the Constitution to meet the popular will in several particulars to which it is not
worth the trouble and expense of going through the forms of amendment.179
More obliquely, O'Malley eulogized Chief Justice Marshall as the man 'who
galvanized the United States Constitution, which to a large extent we have copied, into
life.'180 Bruce Smith observed, a little vaguely, that the decisions of the United States
Supreme Court 'led in many cases to the introduction of meanings which possibly
were never contemplated by its framers' and that the 'same difficult work will have to
be undertaken here'.181 In the Upper House, Senator Best was of the view that, as with
its American counterpart, the High Court would 'interpret and develop' the
Constitution, while in the specific case of the Commonwealth's enumerated legislative
powers, the Court would have to perform 'enormous work in order to ascertain what
they mean and to develop them in such a way that they will be completely consistent
with the Constitution.' All this, however, had to be consistent with the Court's
fundamental duty 'in the preservation of states rights.'182
Pausing briefly to summarise the pro-progressive elements of the Judiciary Bill
debate, it is clear that debate reveals broadly progressivist sympathies on the part of a
number of the participants. Moreover, the degree of sympathy thus revealed is
considerably greater than was the case with the Convention Debates. However, this
conclusion should not be overstated. The debate on the Judiciary Bill is not the hotbed
of progressivism sometimes suggested by the triumphant citation of Deakin's speech.
Out of around one hundred members of Parliament, only three—four if one counts
Deakin himself—adopted a strongly progressivist position, with another five making
statements consistent with some (unspecified) degree of support for that position. This
hardly constitutes general approval among the members of the first Parliament of the
Commonwealth for a progressivist approach to constitutional interpretation.
This is made painfully clear when one turns to an assessment of explicit opposition
to the concept of progressivism as revealed in the Judiciary Bill debates. Unlike
Deakin's famous speech, this opposition rarely is referred to, but was intense and
wide-ranging.
Hostility towards progressivism and Deakin's championing of a constitutionally
activist High Court came primarily from two groups. The first of these were
parliamentarians opposed to Deakin's grand vision for the High Court on the grounds
of constitutional and legal principle; or because its achievement would involve
excessive expense; or simply because such opposition provided an ideal ground upon
which politically to test the Barton Ministry. The greater part of this group was
composed of George Reid and his Free Trade alliance. The second grouping consisted
of members of the Australian Labor Party. They tended to be deeply suspicious of a
High Court composed of conservatively minded judges whom Deakin seemed to
envisage operating less as lawyers than as political theorists.
Not surprisingly, probably the most determined contribution from the non-Labor
critics of progressivism came from Glynn, who since the Conventions had lost none of
his hostility towards a progressivist High Court. Ridiculing Deakin's pretensions for
_____________________________________________________________________________________
179 Ibid.
180 Commonwealth, Parliamentary Debates, House of Representatives, 14 June 1903, 1318.
181 Commonwealth, Parliamentary Debates, House of Representatives, 8 July 1903, 1906.
182 Commonwealth, Parliamentary Debates, Senate, 29 July 1903, 2827.
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Were the Founders Progressivists?
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the Court, Glynn warned against an activist Court by likening its activities to those of
the United States Supreme Court, again drawing upon Jefferson for the dramatic
image of the federal judiciary advancing like a nocturnal thief across the field of its
jurisdiction. He accused Deakin of seeking to erect a tribunal that would distort the
operation of the Constitution, one that 'will probably amplify according to your
growing necessities the interpretation of the provisions of the Constitution'.183 This
was a theme that was to recur throughout the debate.
The first of the Labor members to speak on the Bill was William Morris Hughes,
who attacked the notion of a progressivist High Court in terms even more vehement
than Glynn. He accused Deakin of wanting a High Court that would not merely
interpret the Constitution, but make it:
Here is an empty building, the appointments of which are evidently to be left to the tastes
of the tenants from time to time, and the Judiciary is to be entrusted with the task of
finishing and completing the structure.184
To Hughes, it was not the doubtful points of the Constitution that Deakin wanted
resolved by the High Court. Rather, the Court was to be the means by which the
substantive dispositions of the Constitution could be undermined without the requisite
referendum through 'some sort of patchwork amendment by a convenient
interpretation of the Constitution'.185 Hughes's polemical attack on the whole notion of
a constitutionally activist High Court is a neglected classic within its genre.
Curiously, Hughes seems to draw no distinction between a Court actively imbued
with a desire constantly to adapt the needs of the Constitution to current exigencies,
and one determined to enforce the unexpressed intentions of the Founders, conflating
the two and railing equally against both as emanations of Deakin's perfidious plans.186
This does raise the tantalising question, impossible now to resolve, of whether some of
the expansive expositions of the judicial role by those such as Deakin (and even
Symon) paradoxically might have been meant to smooth the way for such
intentionally founded but non-textual doctrines as reserved powers and the implied
immunity of instrumentalities, rather than for their constitutional polar opposite,
progressivism. Significantly, Hughes' simultaneous opposition both to extra-textual
intentionalism and progressivism has the effect that his speech is a passionate avowal
of rigorous constitutional literalism of the type that was to be adopted in Engineers,
possibly the first sustained formulation of that position.187
In any event, Glynn and Hughes had between them fired the opening round of
what was to become something of a sustained attack upon Deakin's conception of the
High Court. Other Labor members joined Hughes in lambasting the notion of a Court
that would as much create as construe the Constitution. In the House of
Representatives, Conroy said that Deakin's evident intention was to appoint judges to
the Court to 'absolutely make law' under cover of construing the Constitution.188 In
other words, argued Conroy, Deakin was proposing of the Constitution that the High
Court would 'take it upon itself to alter its provisions' in defiance of the requirement
_____________________________________________________________________________________
183 Commonwealth, Parliamentary Debates, House of Representatives, 9 June 1903, 630.
184 Commonwealth, Parliamentary Debates, House of Representatives, 10 June 1903 698.
185 Ibid 699.
186 Ibid 699–702.
187 See ibid 699–703.
188 Ibid 745.
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that this not occur without a referendum.189 In the Senate, their colleague Pearce more
politely stated that he did 'not think that we should accept the view that the High
Court is going to develop the Constitution' and that he trusted 'the people will develop
the Constitution themselves.'190 McGregor, as we have seen, satirically interrupted
Gould's rhapsodic account of the operations of a progressivist judiciary to ask whether
the location of the federal capital would be secure under such an approach.191
Other members of Parliament were similarly sceptical of or at least cautious
towards Deakin's claims. Interestingly, that radical Founder Higgins was generally
deflating of the claims of the Court, and patronisingly said of the attempts of those
such as Deakin and Symon to analogise between the great judges of the United States
Supreme Court and the future judges of the High Court:
in that country the Judges have made a Constitution as a sort of addition to the old
instrument. But those Judges spoke as statesmen, and not as lawyers; no lawyer in these
days would speak as did those Judges from time to time.192
In the Senate, Barrett was highly critical of any tendency to create an excessively
powerful judiciary on the basis that 'we shall make it even greater than the
Constitution.'193 He bluntly observed that:
If we love liberty and right, let us reserve to the people themselves the right to amend the
Constitution … Let not that power rest with the Judiciary ...194
Shortly after these comments, Dobson, who during the Convention had reflected
on the role of the Supreme Court of the United States,195 observed tersely that the
Constitution simply should be interpreted according to the 'principles of
construction.'196
Two other Founders must be counted as having displayed at best limited
enthusiasm for Deakin's progressivist tendencies. Downer, who hardly emerges as a
radical progressivist at the Conventions, spoke in a similarly restrained vein during
debate in the Senate on the Judiciary Bill. Having reasserted the general position of
Deakin that the High Court should interpret the Constitution so as to meet the
demands of altered circumstances, he went on heavily to qualify that position as
follows:
We are not appointing these Judges for the purpose of making a Constitution for us, but
for the purpose of interpreting what we have done; interpreting it strictly, undoubtedly,
but in its interpretation they must have immense latitude.197
O'Connor seems to have had a similar view. In his speech during the Second
Reading debate, he praised the work of the United States Supreme Court, and by
analogy the future work of the High Court, in ensuring constitutional adaptability.198
His speech, however, also contained references to the sanctity of popular amendment
_____________________________________________________________________________________
189 Commonwealth, Parliamentary Debates, House of Representatives, 11 June 1903, 797.
190 Commonwealth, Parliamentary Debates, Senate, 29 July 1903, 2824.
191 See Parliamentary Debates, above n 168.
192 Commonwealth, Parliamentary Debates, House of Representatives, 8 July 1903, 1887.
193 Commonwealth, Parliamentary Debates, Senate, 29 July 1903, 2711.
194 Ibid 2712.
195 Convention Debates, Adelaide, 1897, 937.
196 Commonwealth, Parliamentary Debates, Senate, 29 July 1903, 2722.
197 Commonwealth, Parliamentary Debates, House of Representatives, 5 August 1903, 3058.
198 Commonwealth, Parliamentary Debates, Senate, 29 July 1903, 2693–4.
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Were the Founders Progressivists?
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by double majority,199 and the crucial role of the High Court in protecting the
states.200 Moreover he twice intervened during debate to deny that the Court would
have a power of constitutional revision. When Barrett said during his attack on the
concept of judicial activism that the judiciary should not have the power to 'supersede'
the Constitution, O'Connor bluntly interjected '[n]obody is claiming that'. To similar
effect, he interrupted Harney's progressivist exposition to insist that judicial
interpretation of the Constitution should keep within the rules of legal
interpretation.201
Finally, one may note the deeply non-committal performance of Prime Minister
Barton. Barton hardly could repudiate the progressivist rhetoric of his AttorneyGeneral, but he likewise made no attempt to adopt it. Instead, he characteristically
stressed the fundamental importance of the High Court as protector of the federal
balance. Barton, too, desired a Court that would do more than merely interpret the
Constitution, but not in the sense of a Court that would revise that document. To
Barton, the Court was to be not merely the interpreter of the Constitution, but its
'guardian', and the guardian of the federalism that the Constitution enshrined.202 In the
context of a debate where Barton's own Attorney-General arguably had made such a
feature of the legitimacy of constitutional activism by the High Court, this was a
curiously detached performance. Similar comments may be made of Isaacs, who spoke
closely after Hughes's stinging attack upon Deakin's envisaged role for the High
Court, but made no attempt to defend the progressivist elements of that vision.203
What conclusion, then, is to be drawn from this analysis of the Judiciary Bill
debates? Probably the most important is that they do not comprise the parade of
progressivist opinion that might be suggested by the occasional references to Deakin's
second reading speech. On the contrary, the contributions of Deakin and such likeminded members as Symon were matched blow for blow by the determined rejection
of progressivism by those such as Glynn and Hughes. Indeed, the battery represented
by those members either explicitly opposed to the progressivist sentiments of Deakin
or at least evidently uneasy with them is formidable. It includes such Founders as
Glynn, Higgins, Dobson, Quick,204 Downer and O'Connor, as well as such significant
political figures in the early history of the Commonwealth as Hughes, Pearce and
McGregor. The disinclination of Barton and Isaacs to enter the debate on Deakin's side
also is notable.
In purely numeric terms, ten members who took part in the debate made some
comment inconsistent with support for a form of strong progressivism, as compared
with only nine who explicitly associated themselves (in varying degrees) with
Deakin's comments. However, an impressionistic analysis of the debate probably is
even less favourable to the progressivist forces. Reading the printed debates, it is hard
to resist the conclusion that in his understandable eagerness to stress the importance of
_____________________________________________________________________________________
199 Ibid 2694.
200 Ibid 2695.
201 Parliamentary Debates, above n 176.
202 Commonwealth, Parliamentary Debates, House of Representatives, 11 June 1903, 801.
203 Commonwealth, Parliamentary Debates, House of Representatives, 10 June 1903, 719–33.
204 Quick does not specifically address the issue of progressivism but, unsurprisingly given
the treatment in Quick and Garran (above n 120), is generally hostile to Deakin's approach:
Commonwealth, Parliamentary Debates, House of Representatives, 9 June 1903, 643.
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the High Court with a view to securing its adequate establishment, Deakin made the
rhetorical miscalculation of overstating its role as a means of informal constitutional
revision. This brought down upon his head a series of attacks from constitutional
legitimists such as Glynn, and from Labor opponents of an over-mighty Court, such as
Hughes. In turn, supporters of Deakin such as Gould and Harney, and to a much
lesser extent those such as Groom and Bruce Smith, were compelled to defend
Deakin's position against these attacks as part of a jurisprudential debate essentially
extraneous to the specific purposes of the Bill. Others of his close associates, such as
Downer and O'Connor, expressly placed limitations upon the progressive role of the
Court while Barton and Isaacs, in supporting the Bill, chose to say nothing in support
of a progressive High Court. In the final analysis, the Judiciary Bill debates are
suggestive less of a crucial constitutional measure adopted on the basis of a
progressivist exposition by Deakin, than of the Bill being passed in spite of Deakin's
more provocative comments.
Of course, the fact remains that the debates on the Judiciary Bill do reveal a
significant number of contributions in favour of progressivist interpretation, within a
surprisingly modern debate between at least some identifiable progressivists,
intentionalists, and literalists. These progressivist contributions are important, but
again their significance should not be overstated. All were made in a context where the
tendency to exaggerate the role of the High Court was understandable. The
contributions of Deakin's supporters were made after Deakin himself had effectively
backed them into a progressivist corner. Even then, only Gould, Symon and Harney
delivered speeches that amounted to sustained defences of progressivism, and only
Symon's was one of unwavering support for that method of interpretation. As has
been demonstrated, even Deakin's own speech was far from constituting an
unqualified endorsement of strong progressivism, and contained a number of
elements that suggest he had in mind an altogether more modest constitutional
agenda for the High Court. In the final analysis, while the Judiciary Bill debates raise
some interesting questions concerning attitudes to constitutional interpretation in the
decade after Federation, they definitively do not provide evidence for a wide
acceptance of a progressivist methodology.
Early High Court decisions
All that is attempted here is a very brief survey of some of the more important
decisions of the early High Court with a view to determining whether they reveal
some significant articulation of progressivist methodology. Certainly, were one to
assume a prevalent progressivist inclination on the part of the Founders, it reasonably
might be expected that this predilection would emerge prominently upon the early
High Court bench, constituted as it was in its early years exclusively by Founders:
initially Griffith CJ, Barton and O'Connor JJ, supplemented in 1906 by the appointment
of Isaacs and Higgins JJ. Moreover, if one takes the view that Deakin's speech on the
Judiciary Bill represented a widely acclaimed espousal of progressivism, the time for
the establishment of a progressivist High Court hardly could have been more
propitious than in 1903 when the Court, composed of three judges all appointed by
Deakin as Prime Minister and operating pursuant to the provisions of that very Bill,
now an Act, first began to sit.
It therefore is singular, to say the least, that one discerns not the slightest degree of
overt, strong progressivism in the early judgements of the High Court. On the
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Were the Founders Progressivists?
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contrary, the interpretative methodology of that Court was profoundly intentionalist,
though less idiosyncratic in its intentionalism than has commonly been supposed in
the aftermath of its comprehensive demolition in Engineers. Effectively, the first High
Court applied standard British rules of statutory interpretation in construing the
Constitution, though these rules were modified both by reference to the character of the
document as a constitution, and more specifically as a federal constitution.
Thus, the Court's starting point was the necessity to discover the legislative intent
behind the words in question. This, however, was not some generalised search: in
accordance with ordinary interpretative practice, it was to the constitutional language
itself that the Court turned in order to discern the relevant intention. So much emerges
with absolute clarity from the Court's first general exposition of its constitutional
method in Tasmania v Commonwealth.205 In that case, Griffith CJ stated that the Court
would adhere to the usual practices of statutory interpretation in construing the
Constitution according to its intent, with the words of the Constitution comprising the
best guide to that intention.206 In rejecting a constitutionally active role for the Court
he propounded that the meaning of the Constitution was to be ascertained 'from the
language of the Constitution, and all we have to do is interpret that language.'207
Barton J was equally dismissive of any suggestion that the Court might have a role in
constitutional revision. While cheerfully conceding that 'the intention of a constitution
is rather to outline principles than to engrave details'208 he indignantly observed that:
It would be an enormity to hold that a Judge who thinks that a certain course, laid down
with apparent clearness in an Act of Parliament, is absurd, may use every means to get
rid of that literal meaning which, to the minds of responsible legislators, who were in an
equal position to judge of its absurdity, appeared to be reasonable.209
and went on to say:
It seems to me plain enough that we cannot construe Acts of Parliament by what might
possibly have entered into the minds of the framers had their attention been called to the
construction afterwards sought to be placed on their language.210
O'Connor J likewise displayed no progressivist enthusiasm, insisting that the
Constitution be interpreted by reference to its intention as derived from its words, these
words to be understood in light of the contemporaneous circumstances in which they
had been drafted.211 Consistently with this position, O'Connor J in Deakin v Lyne and
Webb strongly asserted the integrity of the popular will as expressed in the Constitution
against all forces other than formal amendment:
Until that will as so expressed is altered by an amendment of the Constitution, we can
have no regard to any other expression of the will of the people.212
The dicta in Tasmania v Commonwealth thus may be regarded as making it
adequately clear that the judges of the first High Court had no interest in articulating
an interpretative methodology of strong progressivism.
_____________________________________________________________________________________
205 (1904) 1 CLR 329.
206 Ibid 339.
207 Ibid 339-40.
208 Ibid 348.
209 Ibid 346–7.
210 Ibid 348.
211 Ibid 358–9.
212 (1904) 1 CLR 585, 630.
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Precisely the same was to prove true of Isaacs and Higgins JJ when they joined the
bench. It may be noted that it was not with any of the quite straightforward
approaches to constitutional interpretation outlined above that Isaacs and Higgins JJ
subsequently were to take issue. As strong textualists, they were themselves entirely
comfortable with the Court's emphasis upon the constitutional text. Similarly, as
textualists, they also necessarily were derivative intentionalists, regarding the text as
mirror of the relevant constitutional intent.213 Critically in the present context, neither
Isaacs nor Higgins during the period in which they were vigorously contesting such
doctrines as that of reserved powers expressed any obvious inclination towards
progressivism. On the contrary, their professed literalism made them extremely wary
of suggestions that the Constitution should be interpreted by reference to extraneous
considerations, whether in the form of non-textually derived intent, or progressivist
arguments of policy. This hostility towards progressivism was made quite clear by
Higgins J in the Union Label Case. In relation to the notion of trade marks as contained
in s 51(xviii) he stated:
No matter how circumstances may change, no matter what may be the developments of
science, of the arts, of business enterprise, and of society to the end of time, the
Parliament is confined forever (unless there be an alteration to the Constitution) to such
trade marks as the Court enforced in the year 1900.214
In the same case, Isaacs J noted—in terms prescient of Engineers—'no considerations
of expediency or desirability springing from any source whatever are permissible to
the Court in determining the limits of an express and substantive power.'215
Just as Isaacs and Higgins JJ were comfortable with the first High Court's general
approach of non-progressive textual intentionalism, so they were supportive of its
application of two rules of British statutory interpretation of special relevance to the
interpretation of written constitutions. First, the five initial judges of the Court all were
agreed, at least at a conceptual level, that while the Constitution was an Act of the
British Parliament it was a highly unusual Act, and that as the constituent document of
a great federation it was to be read expansively, rather than narrowly.216 Of course,
what the 'expansive' interpretation of the Australian Constitution meant in practice
varied prodigiously from judge to judge. In the case of Griffith CJ, a broad and
unpedantic reading of the Constitution produced the doctrines of reserved powers and
implied immunity as expressions of its intended fundamentally federal character.217
For Isaacs J, by way of contrast, an expansive approach towards the Constitution led,
via the rule in R v Burah,218 to the inexorable expansion of Commonwealth legislative
power finally effected in Engineers.219
_____________________________________________________________________________________
213 See, eg, R v Barger (1908) 6 CLR 41, 83–5 (Isaacs J); 112–14 (Higgins J).
214 A-G (NSW) ex rel Tooth and Company Limited v Brewery Employees Union of NSW (1908) 6 CLR
469, 600 (‘Union Label Case’).
215 Ibid 559.
216 See, eg, Tasmania v Commonwealth (1904) 1 CLR 329, 338 (Griffith CJ); Peterswald v Bartley
(1904) 1 CLR 497, 507 (Griffith CJ).
217 See, eg, Peterswald v Bartley (1904) 1 CLR 497, 507 (Griffith CJ); D'Emden v Pedder (1904) 1
CLR 91, 110–11 (Griffith CJ).
218 (1878) 3 App Cas 889.
219 See, eg, R v Barger (1908) 6 CLR 41, 83–5; Union Label Case (1908) 6 CLR 469, 559; Huddart,
Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, 388.
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In either case, however, expansive interpretation had nothing conceptually in
common with progressivism. To judges like Griffith CJ, the declaration of such
doctrines as reserved powers and implied immunity could not have been further from
the self-conscious development of the Constitution. Rather, they were viewed as being
embedded in the Constitution as a matter of its own internal logic from the very
moment of its inception. As he remarked of the implied immunities doctrine in
D'Emden v Pedder 'a right of sovereignty subject to intrinsic control is a contradiction in
terms', so that the doctrine should be regarded as nothing more than 'the essence of the
Constitution'.220 In other words, so far as Griffith CJ (and Barton and O'Connor JJ)
were concerned, these doctrines were fully intended outcomes of the Conventions, as
was concluded by La Nauze.221 Similarly in the case of Isaacs, the application of the
principle in R v Burah to expand the legislative powers of the Commonwealth was
defended, not on the basis that the Constitution was consciously to be 'up dated' by the
judiciary in line with modern developments, but rather on the grounds that it was to
be construed in accordance with common law rules for the interpretation of a
specialised type of statute, the application of these rules to the particular case of the
Australian Constitution logically being attributable to the contemporaneous intention of
the enacting legislature.222
The second generally agreed refinement to the process of constitutional
interpretation concerned connotation-denotation. All the members of the first High
Court, and the two additions of 1906, were entirely comfortable with the use of the
technique of connotation and denotation in interpreting the legislative powers of the
Commonwealth. As Griffith CJ remarked in the Union Label Case, the meaning of the
terms comprising the subject matters of the Constitution remain fixed as they were in
1900, but 'with advancing civilisation new developments, now unthought of, may arise
with respect to many subject matters.'223 Of course, as already has been noted,224 a
willingness to resort to the historically and intentionally delimited procedure of
connotation-denotation is a very different thing to support for one or other of the
versions of strong progressivism, and the attachment of the early High Court to this
largely uncontroversial interpretative technique is unremarkable.
What is considerably more interesting, perhaps, is the language used by the
members of the Court in formulating this relatively mundane tool of constitutional
construction. What is striking here is that this language not infrequently is highly
reminiscent of the more prominent examples of 'progressivist' rhetoric contained in the
Convention Debates, the debates on the Judiciary Bill, the writings of Inglis Clark, and
elsewhere. This again raises the question of whether many of the utterances of the
Founders commonly put forward in support of their progressivist inclination were
little more than flowery expositions of connotation-denotation.
_____________________________________________________________________________________
220 (1904) 1 CLR 110.
221 La Nauze, above n 73, 271–2.
222 See, eg, R v Barger (1908) 6 CLR 41; Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR
330, 388.
223 (1908) 6 CLR 469, 501 (Griffith CJ); 521-2 (Barton J); 533 (O'Connor J); 600–10 (Higgins J);
and see Federated Saw Mill, Timber Yard and General Woodworkers Employees Association of
Australasia v James Moore and Sons Pty Ltd (‘Saw Millers Case') (1909) 8 CLR 465, 487 (Griffith
CJ).
224 See above nn 14, 30, 95–6, 164–5 and accompanying text.
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To take two examples of the Court's own judicial rhetoric in this context, we
already have noted that in the Union Label Case Griffith CJ rather grandly expounded
the connotation-denotation distinction in terms of 'advancing civilisation' and 'new
developments, hitherto unthought of'. This is language strikingly similar to that used
by Inglis Clark in his famous 'living force' passage,225 and to that adopted by Deakin in
his famous speech on the Judiciary Bill,226 yet it is being deployed by Griffith—hardly
himself a progressivist—in justification of nothing more exciting than the standard
application of connotation-denotation reasoning to the legislative powers of the
Commonwealth. Exactly the same observation may be made of the exposition of
connotation-denotation by O'Connor J in the same case, which had it occurred during
the Convention or Judiciary Bill debates undoubtedly would be advanced today as
evidence of his commitment to some version of strong progressivism:
[the Constitution] … was intended by means of its broad general terms to adapt itself as
far as possible to the changing conditions of trade and commerce, and to the new
conceptions of legal rights and obligations which might in the ordinary course of things
be expected to be evolved in the development of Australia.227
Again, in words deeply evocative of Deakin, Inglis Clark and Symon, O'Connor in
reality is doing nothing more than expressing the rationale for a standard application
of connotation-denotation: indeed, in the specific circumstances of the Union Label Case,
he was not even prepared to expand the concept of a 'trade mark' through the
application of that technique. These two passages should be enough at least to make us
query how far beyond a sensibly liberal application of connotation-denotation those
such as Inglis Clark and Deakin actually intended that the High Court should go, and
whether we are not discerning within their words our own, rather than their,
preference for a strongly progressivist methodology.
The final matter that has to be addressed in relation to progressivism and the early
High Court is the overthrow of central tenets of the jurisprudence of the first High
Court by Isaacs J and his allies in the Engineers Case in 1920. Isaacs J had long loathed
such implicatory doctrines as reserved powers and intergovernmental immunities,
based as they were upon the finding of an extra-textual intention through the 'reading
of the Constitution as a whole'.228 Certainly by 1920, Isaacs J's distaste for these aspects
of the constitutional oeuvre of the first High Court on purely legal grounds would
have been compounded by a conviction that it was out of step with the contemporary
needs of Australia for more cohesive central government. The departure of Griffith CJ,
Barton and O'Connor JJ from the Court and their replacement by younger men far
closer to Isaacs J in constitutional temperament presented him with the opportunity
finally to suppress what he regarded as deeply aberrant elements of the constitutional
legacy of the founding Justices of the Court.
In terms of the possible overt articulation of a progressivist methodology by the
High Court, this was a pivotal moment and something of an ideal opportunity. It
generally is accepted that the Engineers revolution was prompted at least as much by
considerations of perceived national necessity as by the logical imperatives of
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225 See above nn 129–41 and accompanying text.
226 See above nn 154–67 and accompanying text.
227 (1908) 6 CLR 469, 533.
228 See, eg, R v Barger (1908) 6 CLR 41, 83–5.
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constitutional law.229 Given this fact, it theoretically would have been open to the
Court to have articulated its abandonment of reserved powers and intergovernmental
immunities by announcing its adhesion to a progressivist vision of constitutional
interpretation, and declaring that these doctrines no longer answered the nation's
developing constitutional requirements. Instead, the joint judgment in Engineers
famously propounds a rigid literalism as chilly towards overt progressivism as it is
towards the extra-textual intentionalism of the first High Court. There is little comfort
for a progressivist judge in the Court's famous literalist anathema on the constitutional
approach of its former members:
It is an interpretation of the Constitution depending on an implication which is formed
on a vague, individual conception of the spirit of the compact, which is not the result of
interpreting any specific language to be quoted, nor referable to any recognized principle
of the common law of the Constitution, and which, when stated, is rebuttable by an
intention of exclusion equally not referable to any language of the instrument or
acknowledged common law constitutional principle, but arrived at by the Court on the
opinions of Judges as to hopes and expectations respecting vague external conditions.230
The literalistic harshness of this language is a little curious when we recall that
Isaacs at the Conventions (though not during the Judiciary Bill debate) made at least
one contribution that has been cited as evidence of at least progressive tendencies.231
Moreover, no informed commentator doubts that, while Isaacs consistently had
articulated a preference for a literalist interpretative methodology,232 and while this
preference undoubtedly reflected a variety of quite conventional legal and
constitutional influences,233 his adherence to it must have been significantly influenced
by an awareness that its adoption by the Court necessarily would strongly favour the
expansion of Commonwealth legislative power. In these circumstances, therefore, it is
fair to ask the question why Isaacs J and his colleagues in Engineers, assuming them to
have indeed shared some practically progressivist agenda, chose to exorcise the ghost
of Sir Samuel Griffith under the banner of literalism rather than progressivism? The
answer is as obvious as it is revealing. An announcement by the Court that it now
routinely was in the business of revising the Constitution along the lines supposedly
suggested by Deakin in 1903 presumably would have been politically unacceptable on
the grounds of constitutional illegitimacy, both in wider terms to governments and
electors, and more specifically to the legal constituency of the High Court itself.
Consequently, the progressive realities that formed part of the Engineers agenda were
better wrapped within the legal respectability of constitutional literalism. In other
words, there are strong grounds to suppose that in 1920, progressivism could not have
been advanced as a respectable constitutional methodology by the Isaacs-dominated
Court, even had it desired to take such a step. There can be few more compelling
illustrations of the fact that progressivism did not emerge into the post-Federation era
as a legitimate constitutional approach than its failure to have any explicit role in the
new interpretative methodology enunciated in Engineers.
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229 Cf Sawer, above n 17, 196–202.
230 (1920) 28 CLR 129, 145 (Knox CJ, Isaacs, Rich and Starke JJ).
231 See Kirk, above n 1, 358.
232 See, eg, Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, 388.
233 See generally Greg Craven, 'Cracks in the Façade of Literalism: Is There an Engineer in the
House?' 18 (1992) Melbourne University Law Review 540, 551–7.
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The early history of the High Court, therefore, provides little comfort for those who
argue for strong progressivist tendencies among the Founders. The members of the
first High Court were uniformly intentionalist in their constitutional approach, while
the judgments of Isaacs and Higgins JJ display no leanings towards progressivism. The
resolute refusal of the Engineers bench to engage in progressivist rhetoric is similarly
unhelpful to the revisionist claims of modern progressivists.
CONCLUSION
It certainly is true that a careful analysis of historical material connected with
Federation and the period of constitutional establishment that occurred immediately
after Federation reveals a number of contributions by the Founders and their associates
that contain progressivist elements. These contributions are striking when first
examined (and particularly when examined out of context) partly for the very reason
that they are so counter-intuitive to general expectations as to the interpretative
preferences of the Founders.
Nevertheless, any suggestion to the effect that strong progressivism was a
dominant, or even a significant, position among the Founders amounts to a gross
exaggeration. Progressivist contributions in the Convention Debates are infrequent,
isolated, heavily dependent upon context and highly ambiguous. Progressivist
interventions in debate on the Judiciary Bill, while relatively more common and
somewhat more explicit, generally share these characteristics. Even where such
comments appear to embody a relatively overt commitment to progressivism, it
typically will be possible to mount a powerful argument to the effect that they really
embody little more than a commitment to such uncontroversial techniques as
connotation-denotation, or that their authors regarded them as confined to the
achievement of very minor tasks of constitutional revision. Consequently, such
comments provide little or no credible support for the type of strong progressivism
advocated by those such as Deane J or Kirby J. A similar view must be taken of the
work of such commentators as Andrew Inglis Clark. Predictably, in view of these
conclusions, an examination of the judgments of the early High Court likewise betrays
no endorsement of a progressivist methodology.
One question that does arise naturally out of this analysis is that, accepting the
Founders were not progressivists, how did they intend their Constitution to be
interpreted? This issue is beyond the scope of the present article, but elements of an
answer do inferentially emerge, to be explored more fully on another occasion. The fact
that the Founders did not spend a great deal of time talking about the issue of
constitutional interpretation (even during discussion of the Judicature Chapter)
suggests that they probably shared a broad if not particularly deep consensus on the
matter. Thus, they probably were entirely comfortable with the announcement by the
first High Court that the Constitution was to be interpreted in accordance with the
ordinary rules for the construction of British statutes, namely, through an examination
of its words as a means of determining the legislative intent.
Correspondingly, however, they most likely would have endorsed fully the further
position of Griffith CJ and his colleagues to the effect that the Constitution was to be
construed in context as an entire documentary scheme for the creation of a great
federation, and that the intent of the Conventions thus was to be discerned in respect
of the document as a whole, as well as of its individual provisions. To this extent, the
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emergence of such extra-textual doctrines as reserved powers probably would not
have surprised many of the Founders, however much it may have irked those such as
Isaacs J. It certainly is clear that the Founders would have expected the Constitution to
be interpreted expansively in accordance with rules established by the British courts
for the interpretation of colonial constitutions, and would have experienced no
misgivings with the proper application of techniques like connotation-denotation.
Over all this, however, would hang the fundamental obligation of the Court ritually
repeated during the Convention Debates: to maintain the federal balance so painfully
achieved through the creation of the Constitution. The reality, therefore, is that the
interpretative expectations of most of the Founders quite predictably seem to have
anticipated the approach of the first High Court. That approach could be characterized
as a commitment to textual intentionalism, but subject to a recognition that
constitutions are to be interpreted expansively, and that federal constitutions are
subject to a fundamental implied term of strong federalism. On no analysis, however,
was it tolerant of any version of strong progressivism.