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The Transparent Use of History in Australian Constitutional Interpretation: the Banking Power As a Case Study

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THE TRANSPARENT USE OF HISTORY IN AUSTRALIAN CONSTITUTIONAL INTERPRETATION: THE BANKING POWER AS A CASE STUDY Andrew Dahdal A thesis in fulfilment of the requirements for the degree of Doctor of Philosophy Gilbert + Tobin Centre for Public Law Faculty of Law July 2013 PLEASE TYPE TilE UNIVERSITY OF NEW SOUTH WALES Thesis/Dissertation Sheet Surname or Family name: Dahdal First name: Andrew Other namels: Mazen Abbreviation for degree as given in the University calendar: PhD School: Gilbert+ Tobin Centre for Public Law Faculty: Law Title: The transparent use of history in Australian constitutional interpretation: The Banking Power as a case study Abstract 350 words maximum: (PLEASE TYPE) This thesis strengthens the existing literature supporting the use of history In Australian constitutional interpretation by deepening and enriching the study of how history can be used . The thesis also places history at the conceptual centre of all alternative modes of constitutional Interpretation and demonstrates through the case study of the banking power how history can enhance other modes of recognised constitutional adjudication. In the last twenty five years the use of history has become a significant feature characterising the approach of the High Court to the interpretation of the Australian Constitution. Despite the prevalence of this method, members of the High Court, with a few notable exceptions, have yet to address the internal theoretical structure of 'history' or the relationship between history and other recognised interpretive methodologies. This thesis examines the various perspectives relating to how the body of knowledge known as 'history' can be employed in constitutional interpretation, and the conceptual relationships between history and other differing modes of constitutional interpretation. The thesis submits that broader and richer notions of history can drive the jurisprudence of the High Court towards greater conceptual stability and at the same time improve the constitutional decision making of the High Court by enhancing the transparency of the reasoning process. This thesis is not arguing that history alone can produce complete judicial transparency and jurisprudential harmony, but rather that a more sophisticated understanding of history can underpin a more consistent conceptual trajectory. The case study of the banking power (s51(xiii)) is employed to demonstrate how this deeper and more self-reflective mode of history can improve judicial outcomes by highlight and contextual ising perspectives that might otherwise be omitted. The banking power case study also presents a comprehensive treatment of one of the least explored parts of the Australian Constitution. Declaration relating to disposition of project thesis/dissertation I hereby grant to the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or in part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all property rights, such as patent rights. I also retain the rig ht to use in future works (such as articles or books) all or part of this thesis or dissertation. niversity Microfilms to use the 350 word abstract of my thesis in Dissertation Abstracts International {this is applicable to doctoral The University recognises that there may be exceptional circum nces requ iring restrictions on copying or conditions on use. Requests for restriction for a period of up to 2 years must be made in writing. Requests for a longer period of restriction may be considered in exceptional circumstances and re uire the a roval of the Dean of Graduate Research. FOR OFFICE USE ONLY Date of completion of requirements for Award : THIS SHEET IS TO BE GLUED TO THE INSIDE FRONT COVER OF THE THESIS 2 Dedicated to my son, George 3 ORIGINALITY STATEMENT I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial portions of material which have been accepted for the award of any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project’s design and conception or in style, presentation and linguistic expression is acknowledged. Signed…………………………………. Date………………………………………21/01/14 COPYRIGHT STATEMENT I hereby grant the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all proprietary rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstract International (this is applicable to doctoral theses only). I have either used no substantial portions of copyright material in my thesis or I have obtained permission to use copyright material; where permission has not been granted I have applied/will apply for a partial restriction of the digital copy of my thesis or dissertation. Signed ……………………………………………........................... Date ……………………………………………...........................21/01/14 AUTHENTICITY STATEMENT I certify that the Library deposit digital copy is a direct equivalent of the final officially approved version of my thesis. No emendation of content has occurred and if there are any minor variations in formatting, they are the result of the conversion to digital format. Signed ……………………………………………........................... Date …………………………………………….............................21/01/14 .. 4 CONTENTS CONTENTS ........................................................................................................................ 5 ACKNOWLEDGEMENTS .............................................................................................. 10 PREFACE ......................................................................................................................... 11 TABLE OF CASES ........................................................................................................... 14 TABLE OF CONSTITUTIONAL PROVISIONS ........................................................... 18 TABLE OF STATUTES ................................................................................................... 19 INTRODUCTION ............................................................................................................. 20 PART I............................................................................................................................... 23 CHAPTER I ...................................................................................................................... 25 HISTORY IN CONSTITUTIONAL INTERPRETATION: ORIGINALISM IN AMERICAN AND AUSTRALIAN CONSTITUTIONAL DISCOURSE ....................... 25 I Introduction ..................................................................................................................................... 25 II The American Discourse .................................................................................................................. 27 A. The ‘External’ Debates ...................................................................................................................... 29 1. The Confrontation between Originalism and Non-Originalism ........................................................ 29 2. Reconciling Originalism with Non-Originalism .............................................................................. 31 3. The Co-existence of Originalism with Non-originalism .................................................................. 35 4. Stare Decisis.................................................................................................................................. 36 i. Stability vs. Fidelity ................................................................................................................... 37 ii. The Constitutionality of Stare Decisis ........................................................................................ 40 iii. The Political Dimensions of Stare Decisis .................................................. ................................ 42 5. Conclusion .................................................................................................................................... 44 B. The ‘Internal’ Debates ....................................................................................................................... 45 1. Original Intent of the Framers, Understanding of the Ratifiers or the Public Meaning ...................... 45 2. Justifications for Originalism ......................................................................................................... 47 3. Best Way to ‘Do’ History............................................................................................................... 48 i. Thematic History ......................................................................................................................
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