Constitutional Assignment

Introduction
Interpretation of the Australian Constitution has undergone significant changes throughout Australia’s Constitutional history. To highlight the number of different approaches, this paper will critique the method of constitutional interpretation used in Cole v Whitfield (“Cole”) with reference to the words “absolutely free” and compare it to the progressive approach in Rowe v Electoral Commissioner (“Rowe”). For completeness, this paper will outline any other major branches of interpretation not examined in Cole and Rowe. Then, the discussion will focus on the reasons for progressivism as the preferred approach for interpreting the Constitution.
Cole v Whitfield – Interpretative Method and Critique

The High Court used originalism in its interpretation of section 92 in its judgement in Cole v Whitfield . Kirby defines originalism as interpreting the constitution by ‘ascertaining what the words meant according to the original intentions of the founders’. Mason refer this as intentionalism (for the purpose of this paper, it will be referred as original intent ). In the unanimous decision, the court overruled the view that “absolutely free” in section 92 of the Constitution protected a personal individual right of freedom in interstate trade. Rather it means free trade between the states from measures characterised as ‘discriminatory’ and ‘protectionist.’ In aiding its interpretation, the court relied on historical materials to assist in determining the meaning of section 92 and contextual analysis to further validate their claim.

To identify meaning of “absolutely free”, the court broke with tradition by using Convention draft and debate materials to support their reasoning. The high court said:

‘Reference to history may be made…for the purpose of identifying the contemporary meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards federation from which the compact of the Constitution finally emerged’.

From these historical papers, the court looked at the surrounding circumstances leading up to federation to ascertain whether the purpose of the provision was in line with what they were trying to do; and that is to create a federal system that caters for a unified financial framework. From this, the court said the ‘purpose of the section is clear enough… to create free trade amongst the Commonwealth and states alike’ and ‘there can be no doubt that s92 guarantees absolute freedom …from all interstate border duties ‘. Nevertheless, one of the major critiques of original intent is the ability to identify the founders’ intention.
To derive a meaning of the words “absolutely free” from historical materials predominantly relies on certain assumptions that are inherently flawed, namely ; materials are accurate and complete, framers did expressed what they really meant or intended, able to derive intention for unforseen matters and the lack guidelines to source historical materials.

The Convention debates are incomplete and inconclusive. More importantly, it does not include assumptions on how the federal system ought to operate within the common law. Griffith CJ in Municipal Council of Sydney v The Commonwealth helpfully said of Convention Debates: ‘They are no higher than parliamentary debates, and are not to be referred to except for the purpose of seeing what was the subject-matter of discussion, what was the evil to be remedied, and so forth.’ Additionally, the majority in “Work Choice Case” observed that:

‘To pursue the identification of what is said to be the framers’ intention, much more often than not, is to pursue a mirage. It is a mirage because the inquiry assumes that it is both possible and useful to attempt to work out a single collective view about what is now a disputed question of power, but then was not present to the minds of those who contributed to the debates.’

Furthermore, if we assume the Convention Debates are complete, there is no evidence to suggest the framers put in what they intended. The Convention Debate would involve different states coming together and agreeing to be regulated under one system of government. In that process, the states would argue the meaning of the provisions, which power they were prepared to give up and the ones they would sustain post federation. The result would at best be a compromise between their interests and subsequently cannot reflect their true intentions. This is evidenced in the Work Choice Case the majority found ‘the Convention Debates reveal very little about what those who framed the Constitution thought would fall within or outside the power’.

Even if we were to take it one step further and assume that the framers did expressed what they truly intended, it is near impossible for them to cater for unforeseen matters that arise in an ever changing society. An example is set in Work Choice Case where the court identified that corporations ‘in the economic life of Australia today is radically different from the place they occupied when the framers were considering ...legislative powers…’ and that it was impossible ‘to attribute to them some intention about how this legislative power operates in respect of these or other subsequent legal, economic, and social developments’.

Lastly, the validity of the historical materials is disputable insofar as the lack of guidelines on how these materials ought to be sourced. There is no clear historical procedure or method in place to ascertain framers’ intention. Little comfort can be derived from getting a genuine intended meaning particularly in assessing which of the sources are relevant and which ones are reliable. This is again demonstrated in the Work Choice Case. This is problematic as differences in historical materials may lead to differences in judicial views.

The court in its interpretation also favoured a contextual approach to get to the meaning of the section 92 because it draws on the idea of a federal system; ‘this impression is reinforced by the context provided by the surrounding provisions, ss88-91… deal with fiscal charges and burdens… appearing in CH IV of the Constitution which is headed “Finance and Trade”’. The court looked at the provision in context to what the purpose of federation and noted that the meaning of “absolutely free” has not changed, thus concluded that freedom is to mean free from discriminatory burdens in the protectionist sense between interstate trade and commerce . A major limit in making implications via contextual interpretation is that critique will say that it does not stay true to the text of the constitution. In response to this, it is maintained that the ‘text of the constitution only takes on meaning when it is viewed in the context of the overarching structure and function of the constitution.’ A more detailed discussion on contextual analyse in discussed in Rowe below.

Rowe v Electoral Commissioner (“Rowe”)
In contrast to Cole whereby the whole court unanimously agreed on its interpretation approach, the judgement in Rowe v Electoral Commissioner provides a range of different constitutional interpretation methods. The French Court has taken on a progressive approach in interpreting the words ‘directly chosen by the people’ in sections 7 and 24 of the Constitution. Accordingly, it was held certain provisions in the Commonwealth Electoral Act 1902 (Cth) contravened sections 7 and 24 of the Constitution because the right to vote is democratic and is supported and protected by the constitution . Underpinning their progressivism interpretation of the constitution, the majority judges relied on the implied meaning from the text of the constitution (contextual approach) based on accepted principles of the Constitution and authority of precedent cases.
Progressivism (otherwise known as the “living tree” constitutionalism), believes that the court should construe the Constitution ‘so as to bring it into accord with modern needs and exigencies’. It is understandable why the French court opted for a progressivism approach because the words “chosen for the people” back in the 1900s would only mean those who were allowed to vote (this excluded women and Indigenous Australians) . The evolution of Australia’s democratic society has significantly changed since 1901 as evidenced by Mctiernan and Jacobs JJ in Mckinley and cited by French CJ that the right to vote was subject to ‘the common understanding of the time’. It is of the view of the writer that any other interpretation of methods used here could not possibly embrace the modern view of Australian democracy simply because the framers could not have foreseen how democracy evolved over time. Thus, it is not practical to apply a 1900 federation system to modern day society as evidenced by Dean J in Theophanous v Herald & Weekly Times Ltd;

“The Constitution must be construed as a “living force” representing the will and the intentions of all contemporary Australians, both women & men, and not as a lifeless “declaration of the will and the intentions of men long since dead.”
Contextual analysis involves the ‘meaning of the words in the context of the whole of the constitution and the principles it was set up to uphold.’ With constitutional principles of representative government , democracy and federalism, firmly embedded into our legal system, the judges relied on implication from the actual text of the Constitution. Thus, “chosen by the people” should be interpreted to mean creating a system of representative democracy because it is in the context of the Constitution that is aiming to set up . More precisely, the court viewed those words as an implied right to vote. Whilst Cole v Whitfield used contextual analysis, the difference here is with Cole, the implication was based on the structure of the Constitution and in Rowe, the implication was sought directly from the text and that the meaning accords with accepted principles of interpretation. These two kinds of implication are outlined by Mason C.J. in “ACTV”.

The majority judgement relied on precedent to conclude the legislative curtailment of the right to vote is constitutionally invalid. All the members of the court relied on the test established in Lange v Australian Broadcasting Corporation (“Lange”) and relied upon in Roach. As stated by the High Court in Lange, the requirement set out in section 7 and 24 ‘embraces all that is necessary to effectuate the free election of representatives at periodic elections’. All of the judicial consideration of the term “directly chosen by the people” supports the view that sections 7 and 24 of the Constitution extend to an implied right to vote and this was substantiated by the authority of McKinlay v Commonwealth , McGinty v Western Australia , Lang and Roach. It is important to note here, whilst this court relied on the precedent to aid in its interpretation, the court in Cole overruled nearly 88 years of law by reinstating the meaning of s92.

The dissenting judges Hayne J and Heydon J preferred various versions of originalism, which is slightly different to Cole v Whitfield’s intentionalistic approach. The former (Hayne J) found the ‘evolution of the concept of “representative government” could not evolve into a constitutional norm’ as there was no ‘text and structure’ of it contained in the Constitution and the latter relied on what the words originally mean in the 1980s; that is, ‘the question is what meaning skilled lawyers and other informed observers considered those words to bear in the 1890s’ . He concluded that although suffrage at federation did not conform to modern values, ‘this is not a reason to ignore what the means and applications of the word ‘chosen by the people’ in the federation age were’.
Is one of these methods of Interpretation preferable to any other?
For the purpose of completeness, there is another interpretative method that is not discussed above and that is Literalism. Craven describes literalism as interpreting the Constitution by their ordinary – that is their literal meaning’. This is evidenced in the Engineers case whereby the court overturns the reserve state powers doctrine and held that the states only have residual power over matters in section 51 of the Constitution. The obvious advantage of literalism is that it is “objective” in the sense that Judges does not need to use external materials thus promotes certainty. The fundamental flaw in this approach firstly it ignores implications and secondly, the English language is by its very nature is ambiguous and often will lead to uncertainty.
Original intent as seen in Cole argues that ambiguity can be overcome by using historical materials to determine the framers intentions. The critics will argue that intention is difficult to identify and does not cater for the progression of a nation . It is asserted here that originalism and intentionalism does have a role in constitutional interpretation albeit a small role. Sir Daryl Dawson in his (Intention and the constitution) states that original intent ‘provides a starting point for the determination of individual cases.’
Progressivism as defined in Rowe (above) allows the constitution to be interpreted to the needs of a contemporary society. One of the main critic of progressivism is that it is arbitrary given unelected judges can ultimately state what the contemporary society views is. On a closer examination, this supposition is unfounded. Kirby argues that the constitution itself and the words in it create limits on judicial interpretation. Furthermore he argues that the common law structure is there with a long history of precedents, which has been ‘written down.. expositions been duly recorded.. to make up the great body of common law’. That is, the judges still need to work within the common law system in light of the judgements that went before them. This is highlighted in the Engineers case , whereby Knox CJ, Isaacs, Rich and Starke JJ said that the Constitution should be read ‘naturally in the light of the circumstances in which it was made, with knowledge of the combined fabric of the common law, and the statute law which preceded it’. The history, common law and text of the constitution itself represents the various constraints that judges need to work with and thus, cannot be viewed as arbitrary.
Conclusion
Cole’s intentionalism method of interpretation has many flaws inherent in its approach and by definition does not cater for our contemporary society. This is in contrast to Rowe which adopted a progressivism approach and interpreted the words contingent upon external factors such as the context of the words in the Constitution as a whole and the underpinning values of the modern system and its structural framework. It is likely that history may set the context for the words of the provision and provide a starting point for constitutional interpretation but progressivism is the preferred approach as it encapsulates the needs of a changing society and ensures the interpretation is current, practical and logical.