Week 1, Class 1: Constitutional Interpretation and Characterisation - The manifestation of high principles. - Constitutionalism: the need to check power given human propensity to be corrupted by power and misuse it. The imperceptible change in one’s character when given power. - There have been people with great power that have been restrained due to constitutional checks. - Antigone: what laws do I obey? - People with power being restrained by memory of their education, precepts and ideals. Well read and educated men being more likely to be restrained in their exercise of power. - The need for institutional restraints to power o Power cannot be overly concentrated. However there is a balance in the need to be efficient. o To set up institutions that are not in and of themselves sovereign. They are to be governed by law. No person is to be without a higher law to restrain them. o The state exists for the benefit of the citizen and for individual human flourishing. The whole purpose of state apparatus is to encourage people to lead a good life. - Constitutionalism states that no person is ever a means to an end but is the end in themselves. - A number of principles have been diffused over English history which have been inherited in Australia. The Australian Constitution - British Act which gave Australia its Constitution. - The Federal Aspect of the Constitution o the dispersal of power, each with their own powers. The Constitution regulated this relationship o The relationship between the Legislature, The Judiciary and the Executive o The rights aspect: governs the limits on what can be done to citizens. Implied rights, in the absence of a bill of rights, are very important in our Constitution. - The trustee aspect of the Constitution: Trust gives certain powers over assets to the trustee. Usually to invest, manage the trust fund for the sake of a beneficiary. o In a similar vein, the Constitution gives power to various arms of government and they cannot overstep this power. 3 Section 51: Legislative Powers of the Parliament - If the Federal Parliament passes law that is not within what is defined in Section 51’s subject matters, then it is invalid. - The meaning of words will have enormous consequences: o The Parliament is the expression of the people’s will through their representatives. o The British usage of “peace, order and good government” means plenary power. o “Subject to the constitution”. Having the power to make laws does not mean that they are forever laws. They are subject to the Constitution. Ø Inquiries that must be made: is there another provision in the Constitution that the law might go against. Powers and Prohibition - When a court looks at the Constitutional Validity of the law, they treat it as the expression of the will of the people. The Court approaches it reluctantly. o The mere fact that law can be declared invalid goes against Parliamentary Sovereignty. o There is an element of liberality in interpretation of “with respect to” the subject areas. - What is critical in Constitutional Interpretation is the principle/methodology that the Court adopts. o A narrow interpretation would narrow power as opposed to a broad interpretation o The debates between the rival approaches are manifestations of debate about the appropriate role for a court of review in a constitutional democracy. - For example in Section 51(i) sets out that the Commonwealth Government can make law with respect to trade and commerce with other countries, and among the States. o This raises the necessary question of “what is the meaning of trade and commerce” 4 Constitutional Interpretation: Methodologies - The Engineers Case (1920): The court defined for itself the dominant interpretational approach of strict legalism, textualism, and reference to context ONLY when there was a degree of ambiguity. Reference to the view of the framers was not permitted nor were philosophical and policy speculations. o Let the power lie where it falls resulting from textualist approach. - It is the duty of the court to expound and give effect to the Constitution according its own terms, finding the intention from the words of the compact, and upholding it throughout precisely as framed...The one clear line of judicial inquiry as to the meaning of the Constitution must be to read it naturally in the light of the circumstances in which it was made, with knowledge of the combined fabric of the common law, and the statute law which preceded it, and then lucet ipsa per se. o Rejection of: Ø Implied immunity of government instrumentalities § Commonwealth laws could not bind state governments and their public servants. Ø The doctrine of reserved state powers - Strict Legalism could not be championed as it was impossible and so the tide turned in 1988. o Values of judges could not be avoided in some judgements. o Section 92 of the Constitution:” 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.” o What is the meaning of free? Avenue for judges to pour out their own philosophical proclivities. Ø Some judges interpreted this as a constitutionally enshrined laissez faire market system. Ø Other judges said that this meant only being free from customs barriers - Thus originalism started to have influence. Reference could be had to the framers. o Originalism which means that what the framers said and contemporary debates assist in the finding the meaning of the words in contemporary sense o American originalism is different: the words mean what they meant when they were written. Not taking into account modern community values. Ø Roe v Wade: SC inferred from implied right to privacy in the Constitution an implied right for an abortion. § Originalism: how can this be? How could the framers ever think that this right would mean abortion? § This highlights the effect on power and rights that methods of interpretation can have. - “Living tree”/ Contemporary meaning and current community values approaches. o Who are judges to say what community values are? o Should it not be left to parliament instead of the judiciary? 5 - Comparative Cases in analogous jurisdictions o The decisions of the USSC are not binding in other jurisdictions o International law is often referred to in this approach to determine what terms mean. Eg: reference to treaties in rights cases and interpreting constitution to be consistent with treaty. Ø If Aus signs up to treaty then we should interpret Constitution consistent with these treaties? Ø This view is not universally accepted. - Historical Approaches o Where parts of the Constitution rely on historical understandings o S.61 of the Constitution vests executive power in the Queen and GG extending to the maintenance of laws and the Constitution Ø What does this mean when there is no statutory authorisation for action? Ø The only guide is that executive government works upon responsible government which has certain principles which can only be understood via English History. § New doctrine of Nationhood Power: Exec has power to do what alone it can do for the benefit of the nation, without statute. v Historical approaches would be critical of this as this could expand executive power significantly without checks. v It could mean anything! - What is the dominant approach? o Legalism and textualism o Where the text is clear, the Court will stick to it. o Revert to originalism where it is not clear, discussion of the Convention Debates. 6 Interpretation/Characterisation: Heads of Power - The fundamental question that arises: Is an Act of Parliament valid? - In examining the constitutional validity of an Act, two fundamental steps are to be taken: 1. Interpretation of the relevant constitutional provisions: the meaning of the Constitution, defining the relevant head of power. 2. Characterisation of the Act to determine if the impugned legislation falls within the scope of the subject matter: interpreting the statute that one is checking for validity to determine what the subject matter of the statute is. o Rights, duties, powers and privileges which the law changes, regulates or abolishes (Fairfax, Grainpool) o Look at purpose of the legislation as well if the relevant head of power is purposive. F Then one can see whether the subject matter comes within the Constitutional head of powers and is valid. Relevant interpretation principles: - Grainpool v Cth o The HCA when interpreting, cannot be stingy or narrow, but must ‘let the words speak’ with all the generality that the words permit. o The practical operation of the law must be examined to determine to see if there is connection to relevant head of power. v Even if on formal basis it is outside heads of power, look at the practical effect on subject matter. Relevant characterisation principles: - Fairfax v Federal Commission of Taxation (1965) o Government amended Income Tax Act such at Super Funds that invested in Government Bonds in a certain way, would pay less tax on income. v Government concerned about falling investment in government bonds and was encouraging investors to invest v Using taxation to encourage certain behaviour! o This was challenged on the basis that this statute is not in respect to taxation (a head of power) but rather, should be characterised with respect to providing incentive to invest in certain assets which is not a head of power. v (It’s not about this, it’s actually about that which is invalid”) o Court took approach that in order to see if statute was in power or not, had to seek its dominant characterisation. v Court then changed its mind on characterisation: adopted the dual characterisation approach v So long as one of its characterisations (not even its dominant one) comes within power, it would be valid.