1. Comparative Constitutional Law Class 13 October 4, 2006 Australian Constitutional Interpretation I

2. Frederick McCubbin: The Pioneer (1904)

3. Grace Cossington Smith: The Bridge in Curve (1926)

4. Emily Kngwarreye, Untitled (1996)

5. Ken Done

6. WRAP-UP

7. High Court: First Sitting (1903)

8. 2 possible interpretative traditions on which High Court could draw British statutory interpretation U.S. constitutional interpretation What was different about these? Which did Griffith Court pick?

9. Sir Samuel Walker Griffith First Chief Justice of the High Court (1903- 1919) How did the Griffith Court approach constitutional interpretation?

10. Justice O’Connor Served on High Court 1903-1912 Former Senator Favored Federation Involved in Constitutional convention

11. Sir Edmund Barton First Prime Minister of Australia (1901-1903) Protectionist Work defusing first international cricket riot in 1879 (he was umpiring) led to start of his political career Leading federalist in NSW at time of constitutional conventions

12. Griffith Court Adopts doctrines of intergovermental immunities and reserved state powers based on U.S. precedents.

13. Intergovernmental Immunities  With the famous declaration that "the power to tax involves the power to destroy," McCulloch v. Maryland (1819), 17 U.S. (4 Wheat.) 316, 431, 4 L.Ed. 579, 607, Chief Justice John Marshall announced the doctrine of federal immunity from state taxation.  Although both sovereigns could impose taxes, the court held that a state does not have authority to tax an instrument employed by the federal government in the execution of its power. Id. at 432, 4 L.Ed. at 608.

14. Section 51: Enumerated Powers 51.The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: - (enumerates 39 powers)

15. Section 52 52. The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to (i.) The seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes: (ii.) Matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government or the Commonwealth: (iii.) Other matters declared by this Constitution to be within the exclusive power of the Parliament.

16. Section 107 107. Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.

17. Section 109 109. When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

18. Change in High Court personnel 1906: Justices Isaacs and Higgins appointed to the Court 1912: O’Connor dies 1913: Duffy appointed, Powers appointed, appointed, Piddington appointed (now 7 justices) 1913 Rich replaces Piddington 1919: Griffiths retires as CJ; Knox replaces him 1920: Barton dies, Starke appointed All except Powers hear Engineers case (6 justices)

19. Justice Higgins Served as justice on the High Court 1906- 1929

20. Justice Isaac Isaacs Served on the High Court 1906-1930 Difficult, uncollegial Radical Later appointed Governor-General Opposed to Zionism

21. Engineers’ Case (1920) Most famous High Court case What approach to constitutional interpretation does the majority hold should be applied (positivist? Normative? Living tree? Originalist?) Effect of Engineers’? Has Australia adopted anything like Canadian “Pith and substance” test?

22. LEGALISM Cannot prevent the abuse of constitutional powers, e.g. First Uniform Tax case (1942) (p. 138) Another example of a broad power: external affairs power See Tasmanian Dam (1983) (p. 140 n. 215)

23. The Queen v. Pearson; ex parte Sipka (1983) 152 CLR 254 Is there a constitutional right to vote in Australia? Describe the methods of constitutional intepretation used in this case (especially use of history and context).

24. The Queen v. Pearson; ex parte Sipka (1983) 152 CLR 254 S. 41 "No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth."

25. The Queen v. Pearson; ex parte Sipka (1983) 152 CLR 254 30. Until the Parliament otherwise provides, the qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the State as the qualification of electors of the more numerous House of Parliament of the State; but in the choosing of members each elector shall vote only once.

26. Legislative History What change in approach to the use of legislative history was adopted in the case of Cole v. Whitfield (1988)? (case on s. 92)

27. Section 92 92. On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

28. Narrow reading of rights provisions E.g. S. 80 S. 116 (Kruger v. Commonwealth IStolen Generation case) [1997] HCA 27

29. STRUCTURAL PRINCIPLES “Silent operation of constitutional principles”, e.g. federalism, separation of powers, representative democracy, responsible government, nationhood, rule of law Led to implied freedom of political communication in 1992 (ACT, Theophanous) Roots in Lionel Murphy’s thinking (1986) Dispute over whether implicit in particular provisions or underlying principle (former chosen in Lange (1997))

30. IMPLIED RIGHTS McGinty case (1996) rejected claim that onstitution guarantees principle of one vote, one claim. Theophanous dissenters now in majority. Gummow doubts ACT/Theophanous correctly decided, invokes parliamentary supremacy Toohey, J. dissents on living tree tjepru

31. PRECEDENT To what extent is High Court willing to reverse itself? See, e.g., Engineers’ and Cole v. Whitfield

32. PRECEDENT Practice rule: counsel must ask for leave to challenge prior High Court decision.

33. DEFERENCE TO OTHER BRANCHES OF GOVERNMENT Does the High Court 1. defer to constitutional interpretations adopted by other branches? 2. apply general presumption of constitutionality to acts of other branches?

34. POLICY CONSIDERATIONS To what extent do these influence constitutional interpretation in Australia? (in theory, in reality)

35. USE OF COMPARATIVE & INT’L LAW 1900-1920 American and British, some Canadian 1920-1980 reduced use of comparative law 1980 increasing use of it, especially British, U.S., South African, Canadian, New Zealand, Indian cases Kirby has suggested High Court should interpret ambiguities in constitution by determining which construction best comports with international law

36. CULTURAL FACTORS INFLUENCING LEGALIST METHOD Reverence for British legal tradition, esp. in Sydney, Melbourne. Result: prefer rules to principles Relatively homogenous federation Widespread belief that need for national regulation (leading to broad interpretation of Commonwealth powers) Fierce partisan political debates between Labor and Liberal parties: led to need for Court to ensure its own legitimacy Others

37. High Court chief justices Griffith 1903-1919 endorse U.S. approach Knox 1919-1930 legalistic, formalistic British approach Isaacs 1930-1931 ditto Duffy 1931-1935 Latham 1935-1952 Dixon 1952-1964 some development intergov. immunities Barwick 1964-1981 Gibbs 1981-1987 Mason 1987-1995 shift to more purposive approach, imply rights Brennan 1995-1998 Gleeson 1998 to present some conflict, but most judges follow Engineers’ (not Kirby)