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Reilly, Alexander --- "Reading the Race Power: A Hermeneutic Analysis" [1999] MelbULawRw 19; (1999) 23(2) Melbourne University Law Review 476


Reading the Race Power: A Hermeneutic Analysis


[This paper uses the work of Hans-Georg Gadamer in the field of hermeneutics to analyse the various interpretations of the race power in Kartinyeri v Commonwealth. The analysis hopes to identify the interpretative emphases in the judgments of the High Court without championing any of the conventional categories of interpretative method: originalism, literalism and progressivism. It is hoped, through such an analysis, to critically appraise the approaches of the High Court to interpretation, and to open spaces for new constitutional conversations.]


The central concern of hermeneutics as it relates to the study of literature is the problem created by the fact that texts written in the past continue to exist and to be read while their authors and the historical context which produced them have passed away in time.[1]

Under s 76 of the Australian Constitution, Parliament ‘may make laws conferring original jurisdiction on the High Court in any matter — (i) Arising under this Constitution, or involving its interpretation’.[2] This section recognises that it is inevitable that the words of the Constitution will need to be interpreted, whatever that may entail. Every application of the Constitution to particular facts presents a new question of interpretation. The law would lose its authority if this application occurred arbitrarily. The authority of a constitutional text rests on the certainty and coherency of its interpretation.

The interpretation of legal texts is constrained by several presumptions and expectations within the legal framework. In contrast to prose and poetry, legal texts are created purposively. Parliament expects the text of legislation to have a particular meaning, not only at the time of its creation, but also at some future time when it is interpreted and applied. Judges are constrained in their interpretations by their position in the political structure of government. Legislators make the law, the executive administers the law, and judges interpret the law in the light of a particular factual dispute. Judges must be careful not to usurp the law-making role of Parliament in this exercise of interpretation. Their interpretation must not be productive (providing new meaning for the text), but reproductive (expounding the will of Parliament).

Hermeneutics is the ‘critical theory of interpretation’.[3] Hermeneutic investigations explore the relationships between author, text and interpreter free from the polemics surrounding the legitimacy of judges and the authority of legislators.[4] For some theorists, hermeneutics is a framework for discovering the method of interpretation which leads to the most accurate, and therefore most valid, interpretation.[5] With a focus on certainty of outcome, legal methods of interpretation are within this category of hermeneutic inquiry.

For Hans-Georg Gadamer, the task of hermeneutics ‘is not to develop a procedure of understanding, but to clarify the conditions in which understanding takes place.’[6] Gadamer emphasises a number of fundamental conditions for understanding. First, interpreters enter the process of interpretation with prejudgments of what the text means: ‘The initial meaning [of a text] emerges only because [the interpreter] is reading the text with particular expectations in regard to a certain meaning.’[7] In order to get beyond this projected meaning for the text, interpreters need to ‘be aware of [their] own bias[es], so that the text can present itself in all its otherness and thus assert its own truth against [their] own fore-meanings.’[8] This will prepare the person for what the text may have to tell them.

Second, Gadamer emphasises the importance of tradition in the interpretation of texts. Every text has an abundant and continuing history that begins with its first articulation, and continues to transform from that point to the present. Therefore, historical knowledge is ‘fluid’ and ‘never complete’.[9] True understanding occurs when interpreters have transformed their preconditions to the extent that they are consonant with the tradition of the text. Understanding is ‘the interplay of the movement of tradition and the movement of the interpreter.’[10] The more interpreters attempt to acknowledge and refine their preconditions, the closer their preconditions will be aligned to the text, and the better their ability will be to interpret the text. There will be a point at which the different circles of meaning of the text and the interpreter intersect. At this point, there is a moment of understanding.

Gadamer’s work stresses that interpretation will change according to context, and therefore that each reading of a text will inevitably produce a new interpretation.[11] This understanding would seem to align Gadamer with theorists who reject the possibility of truth in interpretation.[12] What places Gadamer within the field of hermeneutics is his acceptance that some interpretations are more consistent with the history or tradition of a text than others, and his emphasis on the importance of accounting for this tradition as comprehensively as possible in the process of interpretation.[13] For Gadamer, the work of hermeneutics is to clarify the conditions in which the best interpretation of a text can take place; in particular, how interpreters can best overcome their biases or prejudgments and how they can best account for the tradition of a text.[14] Gadamer has been criticised, however, for not avoiding absolute relativism. His description of the traditions of texts and the preconditions of interpreters is broad, contextual and heterogeneous. Given his description, it is difficult to assert that one interpretation is more valid or truthful than another.[15] Others disagree. Brice Wachterhauser states that what is so important about Gadamer’s work is his insistence that ‘the contextualised nature of such truth-claims is not a threat to their truth-value’.[16] Whatever view one takes of Gadamer’s final position on the nature of truth and the possibility of its discovery, his work on the conditions of interpretation is helpful in the analysis of High Court interpretations of the Constitution.

Among legal texts, the interpretation of the Constitution is unique. Its provisions describe a framework for government in broad terms. The text is intended to be relevant and applicable over a long period of time and is difficult to amend. Judges face competing pressures when interpreting the Constitution. On the one hand, so as not to undermine the power of interpretation granted to them under the Constitution, they are constrained to interpret its provisions conservatively, with due deference to the legislature. On the other hand, because of the Constitution’s longevity and generality, judges must apply the words of the Constitution to situations and contexts not envisioned by the Constitution’s framers. This requires a progressive reading of the text and finding new meanings for words that are being adapted to new applications. These competing pressures on judges are some of the preconditions they bring to the task of interpretation. In managing their conflicting responsibilities, judges make choices between competing credible interpretations. The law has developed methods of interpretation to limit and legitimise the choices judges make.

Although the Constitution specifies no set method for its interpretation, judges of the High Court have posited various interpretative methods since Federation to justify particular readings. A short era between 1903 and 1920, emphasising founding intention,[17] was followed by Engineers-inspired literalism.[18] While still authoritative, this approach gave way in the 1980s and 1990s to a greater willingness to use a range of sources external to the Constitution to aid its interpretation,[19] including a return to founding intention.[20] Within legal academic writing, three methods of interpretation have been distilled from the case law: originalism, or intentionalism, in which the search for the meaning of the text is informed by an investigation of the author’s intention;[21] literalism, which seeks to reveal the inherent coherence of the text through a common sense, rational reading;[22] and progressivism, which reads the text as a ‘living force’[23] collecting its meaning from contemporary circumstances and values.[24] Each approach provides a grid which, when placed over the text, structures its reading.[25]

The adoption of one or another, or a combination of these methods, provides the legal discourse with coherence and legitimacy. Legal interpreters take on different roles depending on which method they adopt. The originalist is an archaeologist, discovering meaning through historical investigation of the fragmentary words of intention in the Convention Debates which, although ancient in origin and perhaps containing unpalatable values, reveal the true and legitimate meaning of the text. The literalist is a logician, concentrating on grammatical structures and the common sense use of words. The progressivist is either (described pejoratively) a social engineer who manipulates the text of the law to reach a result consonant with his or her own values,[26] (described more sympathetically) a creative wordsmith who stretches the meaning of words to suit a modern context,[27] or (described flatteringly) a principled jurist who interprets ambiguous texts according to broader principles of ‘justice’.[28]

When High Court interpretation is framed by commentators according to the methods outlined above, that framing tends to be unnecessarily antagonistic. The proponents of each method cannot engage in a meaningful debate because they approach interpretation from varying epistemological foundations. Each method has a different process for discovering truth or validity in texts. For originalists, the true or valid interpretation of the text is based on the author’s founding intention. For literalists, it is contained within the words themselves. For progressivists, it is found in the context in which the words are read. As a result, commentators are able to make strident criticisms of a judgment without addressing the preconditions and assumptions upon which their criticism is grounded.

Consonant with Gadamer’s approach, the analysis of Kartinyeri v Common-

wealth[29] in this paper does not subscribe to any of the triumvirate of methods outlined above. Structuring the discourse according to these methods would narrow the potential scope of an inquiry into High Court interpretation. The inquiry would become limited to developing rules and procedures for understanding, rather than clarifying the conditions in which understanding takes place. Recourse to such legal methods would too easily reduce, categorise and resolve important tensions between meaning and significance, the past and the present, and the practical and the theoretical. The discourse would leave insufficient room for an exploration of the penumbra of doubt surrounding the text of the Constitution, its origins, its development and its present context. According to Gadamer’s theories, to predetermine methods of interpretation in this way could be considered a prejudgment, and thus likely to conceal rather than elucidate understanding.


Kartinyeri[30] provides the most comprehensive statement on the interpretation of s 51(xxvi) of the Constitution (‘the race power’) since Federation. Under s 51(xxvi), Parliament has the power to make laws with respect to ‘[t]he people of any race for whom it is deemed necessary to make special laws’.[31] Although the section has been used to support numerous pieces of Commonwealth legislation directed specifically at Aboriginal people, the Hindmarsh Island Bridge Act 1997 (Cth) (‘Bridge Act’) was the first Act passed under the section which was claimed to be detrimental to the interests of Aboriginal people.[32] In judgment, Kirby J set out a number of matters that were common ground between the parties. Firstly, that the only head of power under which Parliament could pass the Bridge Act was s 51(xxvi).[33] Secondly, that the parties agreed that s 51(xxvi) was originally placed in the Constitution to enable the Commonwealth Parliament to pass special laws either for the benefit or for the detriment of the people of any race.[34] The section was amended by legislation to include Aboriginal people within its ambit at referendum in 1967.[35] The referendum returned an overwhelming ‘yes’ vote,[36] the largest of any referendum in the history of the Commonwealth. From the transcript of proceedings, it is also clear that the parties and the Court accepted that it is likely that the people voting at the referendum assumed that Aboriginal people would benefit from their inclusion within the ambit of s 51(xxvi).[37] However, in judgment, members of the Court differed substantially on the significance of the referendum for the interpretation of s 51(xxvi).[38] It was also common ground that the Heritage Protection Act and the Bridge Act were passed pursuant to s 51(xxvi).[39] Within the parameters of these agreed facts, the Court was faced with the task of determining the relationship between the two Acts and the race power in order to rule on the applicants’ submissions.

The applicants argued that the race power could only be used to pass laws for the benefit of Aboriginal people. This argument followed two main lines. First, it was submitted that the referendum in 1967 fundamentally altered the meaning of s 51(xxvi). Second, it was submitted that the meaning of the section had changed over time, and by 1967 it had been so altered by the passage of time that it could only be used for the benefit of any group of people identified on the basis of race. The first submission emphasised the historical origins of the text. It looked to the points in time at which the text was created or altered and argued that it is at these points in its history that the text is infused with meaning, and that the meaning remains stable until the text is altered once again. The second submission invited the Court to disregard the founding intention of s 51(xxvi) in favour of a flexible reading that was responsive to changing contexts. The applicants asserted that the meaning of the section had changed progressively since Federation and that the change could be traced, albeit imperfectly, from 1900 to the present. A number of events were said to contribute to the change, including the Second World War, international treaties and covenants, and attitude and policy changes in Australia since the War.[40] The Commonwealth rejected this argument out of hand, triggering the following exchange between the Commonwealth Solicitor-General and Kirby J:

Mr Griffith: We would submit that ... the constitutional meaning must remain constant. ...
Kirby J: But you just ignore completely the change of the world, the change of society, the change of attitudes, you are stamped with the meaning of prejudice of 1901. I could never accent [sic] that.
Mr Griffith: Your Honour, it is the words of the Constitution which control the meaning. They have not changed - - -
Kirby J: Words take on their colour with changing circumstances, with changing attitudes.
Mr Griffith: Your Honour, this is not a change in colour, it is a change of absolute meaning, and we submit the operative words are exactly the same now as they were in 1900.[41]

Traditionally, the law has subscribed to a distinction between the connotation of a word or text and its denotation. The denotation of a text is comprised of all the things in the world to which the text refers; its connotation consists of the criteria that define it and thereby determine its denotation.[42] Another way of expressing this distinction is that texts have a fixed meaning (their connotation) but varying applications in different contexts (their denotation). In relation to constitutional interpretation, the connotation of a subject matter within Commonwealth legislative power is the meaning that the subject matter had in 1900. The denotation of the subject matter includes all the activities and relationships which might be incorporated within that meaning, whether or not they were in contemplation in 1900.[43] As long as submissions are based on the original meaning of the text, it is not unusual to ask the Court to extend the application of a section to new circumstances, or to invite the Court to declare an earlier interpretation to be erroneous.[44]

Although the distinction between connotation and denotation is accepted in law, it is controversial in hermeneutics. The distinction approximates a distinction drawn by Hirsch between ‘meaning’ and ‘significance’:

[There is a] fundamental distinction ... between the meaning of a text and the significance of that meaning to a present situation. ... The meaning of a text is that which the author meant by his use of particular linguistic symbols. ... However, each time this meaning is construed, its meaning to the construer (its significance) is different.[45]

For Hirsch, the distinction is essential because

[w]ithout a genuinely stable norm [which is provided by the ‘meaning’ of the text] we cannot even in principle make a valid choice between two differing interpretations, and we are left with the consequence that a text means nothing in particular at all.[46]

Similarly, the legal distinction between connotation and denotation provides a stable meaning for the text and legitimacy for its further application.

Hirsch discussed this distinction in response to the work of Gadamer. For Gadamer, ‘meaning’ and ‘significance’ cannot be separated. Interpretation involves a constant and circular struggle between the universal, abstract, objective and theoretical ‘meaning’, and the specific, immediate, subjective and practical ‘significance’. The lawyer may seek meaning in an old text, but can only approach this meaning through a reconciliation of the events intervening between the past and the present; can only relate to these events from his or her place in the present; and can only provide meaning for the text in its practical application to a specific case. Only when meaning and significance fuse in the same ‘horizon’ is an understanding of either possible.[47] Any such fusion is momentary, occurring while traversing the temporal distance between meaning and significance. In Kartinyeri, only Kirby J explicitly acknowledged the possibility that the meaning of a text might change over time:

Attempts of this kind to offer linguistic explanations of the judicial function in giving meaning to the language of the Constitution may be less convincing than a candid acknowledgment that, sometimes, words themselves acquire new meaning from new circumstances. ... Each generation reads the Constitution in the light of accumulated experience.[48]

The two main submissions of the applicants took distinct and irreconcilable theoretical positions. The first embraced the meaning–significance distinction and focused on original meaning as the source of legitimacy. The second occupied an uncomfortable middle ground between the work of Hirsch and Gadamer. The submission suggested that meaning is both stable (at any one time) and changeable (over a period of time). For Hirsch, the meaning of a text does not change over time without being severed from its roots and thus losing any validity it may otherwise have possessed.[49] For Gadamer, a stable past meaning is unattainable as it does not account for the intervening history of the text, or the contingent historical positioning of the interpreter:

Real historical thinking must take account of its own historicity. Only then will it cease to chase the phantom of a historical object that is the object of progressive research, and learn to view the object as the counterpart of itself and hence understand both.[50]

The Court exposed the weakness of the second submission by probing counsel on the scope of s 51(xxvi) at different times in its history.[51] Counsel for the applicants could not identify the point in Australia’s history when attitudes towards racial difference so altered that the meaning of the concept ‘race’ fundamentally changed. It was foolish to try. By offering to the Court a history of past meanings for the text, counsel attempted to give the text a greater determinacy in its progression to the present than it could sustain. The argument only served to highlight for the Court the instability of meanings since Federation, and to make the original meaning look attractively stable by comparison. The alternative was to focus on the role of past intentions and meanings, including those at Federation, as part of the tradition of the text.

Past intentions and meanings are historically contingent, and not open to a determinate interpretation. However, they are still important in providing a richer understanding of the text as a whole, and at the time of judgment in particular. For such an approach, the role of historical understandings of texts is not to determine present understandings, but rather to offer information about the historical context from which a present understanding emerges. Free from the search for particular historical objects, the Court could then have been invited to embrace the full potential of the text with a new historical consciousness:

[T]emporal distance is not something that must be overcome. This was ... the naive assumption of historicism, namely that we must transpose ourselves into the spirit of the age, think with its ideas and its thoughts, not with our own, and thus advance towards historical objectivity. In fact the important thing is to recognize temporal distance as a positive and productive condition enabling understanding.[52]

Counsel did not fully canvass arguments emphasising possible contemporary meanings of the text. Some members of the Court, however, pursued such arguments in judgment. Four of the six judges found it necessary to interpret the limits of Parliament’s power under s 51(xxvi) to determine the validity of the Bridge Act. Of these judges, each placed a differing emphasis on the various factors in interpretation: founding intention, the semantic meaning of the text, the Court’s role as interpreter, and the influence of the present context to interpretation. What follows is a critical appraisal of these aspects of the judgments in the case.

A Law and Fact, Theory and Practice

Brennan CJ and McHugh J held that the Bridge Act was effectively a partial repeal of the Heritage Protection Act. If the Heritage Protection Act was validly passed under s 51(xxvi), then the Bridge Act must also have been validly passed under the same head of power. By construing the relationship between these Acts and s 51(xxvi) in this way, Brennan CJ and McHugh J did not find it necessary to proffer an interpretation of the race power to answer the applicants’ claim. As long as the Heritage Protection Act was valid, Parliament must be able to repeal it in whole or in part. To construe Parliament’s power otherwise would be to infringe the basic principle of parliamentary sovereignty that Parliament cannot limit the scope of its law-making power into the future.[53] Furthermore, it is settled law that the Court will only offer an interpretation of the Constitution to the extent that it is necessary to resolve a factual dispute, and will not provide advisory opinions.[54] Gaudron J agreed with Brennan CJ and McHugh J on the relationship between the two Acts, and agreed that this analysis answered the question before the Court.[55] However, she also provided a comprehensive interpretation of the race power. Gummow, Hayne and Kirby JJ all found it necessary to interpret the race power to answer the question of validity before the Court. How is it that two judges found it possible to answer the applicants’ submissions without interpreting s 51(xxvi)?

The crucial distinction between the judgment of Brennan CJ and McHugh J and that of the other judges is how they chose to frame the question of validity. Brennan CJ and McHugh J put the question of validity thus:

[G]iven that the parliament had power to enact Pt II of the Heritage Protection Act in exercise of the legislative power conferred by s 51(xxvi) of the Constitution, did the parliament have power subsequently to restrict the operation of Pt II?[56]

Framing the question in this way focused the inquiry on the continued validity of the Heritage Protection Act, and on the relationship of this Act to the Bridge Act. Having so narrowed the question of validity, the only point left for Brennan CJ and McHugh J to determine was whether the Heritage Protection Act continued to be valid under s 51(xxvi). If it did, then any repeal of the Act must also be valid under s 51(xxvi):

[T]he parliament exercised its power under s 51(xxvi) to enact the Heritage Protection Act and it has had at all times the same power to amend or repeal that Act. As the Bridge Act has no effect or operation other than reducing the ambit of the Heritage Protection Act, s 51(xxvi) supports it. Approaching the question of validity in this way, the Bridge Act is valid.[57]

This analysis is internally consistent. At a point in history, 1984, the Heritage Protection Act was validly passed. In 1997, the Bridge Act effectively repealed part of the Heritage Protection Act. Parliament can repeal any act it has passed. This is an absolute and timeless rule that applies regardless of the tradition that has developed around the Heritage Protection Act in the intervening period.

According to Gadamer’s theories, this reasoning fails ontologically:

A law does not exist in order to be understood historically, but to be concretized in its legal validity by being interpreted. ... This implies that the text ... must be understood at every moment, in every concrete situation, in a new and different way.[58]

The application of a text to a new circumstance will always affect how it is to be interpreted in the present. The applicants based their challenge to the validity of the Bridge Act on the relationship between the Act and Parliament’s law-making power under s 51(xxvi), as informed by the impact of the Act on their circumstances. Therefore, a judgment of the case must account for the development of the Heritage Protection Act since its inception in 1984, the growing use and significance of the race power in that time, and the circumstances under which the Bridge Act was passed in 1997. Utilising Gadamer’s reasoning, the Heritage Protection Act in 1997 is different from the Act of the same title and wording in 1984. Its existence and operation in the intervening 13 years affects the way it is perceived and how it operates, and must therefore affect the way it is interpreted. There are numerous ways the Act may have been transformed. The availability of the Act may have created expectations for Aboriginal claimants as to how they can legitimately protect sacred sites. Indigenous and non-indigenous relationships to land may have changed between 1984 and 1997, so that the Act is of more importance to the protection of Aboriginal sacred sites in 1997 than it was in 1984. Most obviously, in 1992, Mabo v Queensland [No 2][59] fundamentally changed the rights of indigenous people to lands where they still enjoy a traditional physical and spiritual connection. These kinds of changes cannot be ignored when determining the validity of the Bridge Act. Since the Heritage Protection Act existed in 1997 in a vastly different context to that in which it existed in 1984, any amendment or repeal of the Act may have a vastly different significance to an equivalent amendment at some earlier point in the history of the Act.

According to Gadamer’s reasoning, therefore, the judgment of Brennan CJ and McHugh J is wrong to suggest that Parliament ‘has had at all times the same power to amend or repeal that Act’, as it did when it was first enacted.[60] It is wrong because it does not account for the role of tradition or history in the interpretation of the Heritage Protection Act. It is wrong also because the power of Parliament to pass or repeal laws, in itself, will vary according to how relevant relationships evolve over time. The power may have been altered by events during the constitutional crisis of 1975, by the passing of the Australia Acts in 1986,[61] or by a change in the High Court’s approach to interpreting the Constitution in the early 1990s. Alternatively, it might have been altered by more subtle changes in the relationship between the legislative, executive and judicial branches of government.

The point of this analysis is not to suggest exactly what changes in Parliament’s power to amend or repeal the Heritage Protection Act have occurred since 1984. The point is simply to affirm that changes have necessarily occurred. Having occurred, they cannot be ignored in construing the relationship between the Heritage Protection Act and the Bridge Act. It is the responsibility of judges as interpreters of these Acts and the Constitution to account for as much of this tradition as possible in reaching their conclusions on the validity of the Acts. Even if Parliament could have repealed the Heritage Protection Act or any of its provisions under the Constitution in 1984, this does not necessarily mean that the same applied in 1997. In 1997, the Act existed in a different political and social context from that of 13 years earlier, as did the race power. Just because the Act was validly passed under s 51(xxvi) in 1984, the question of the validity of its repeal in 1997 required a fresh examination of the relationship between the Act and s 51(xxvi). In exploring this relationship, all aspects of the history of the Heritage Protection Act and the race power are relevant, including, in particular, the application of the Ngarrindjeri people in 1994 for a declaration under s 10 of the Heritage Protection Act to protect Hindmarsh Island from the building of a bridge.

The application of the Ngarrindjeri people under s 10 of the Heritage Protection Act has a turbulent history. At first the application was successful. The Minister made a declaration that no development should take place on the disputed area for 25 years. This was challenged successfully on the grounds that the report upon which the Minister had relied was flawed.[62] The appointment of a Federal Court judge as a second reporter was also challenged successfully in the High Court on the grounds that it breached the constitutional doctrine of the separation of powers.[63] Instead of appointing a third reporter, Parliament decided to resolve the issue by removing the protection of the Heritage Protection Act from the area in dispute. The Bridge Act accomplished this. In doing so, it denied the applicants access to an administrative review process in relation to their traditional land under the Heritage Protection Act that continued to be available to other Aboriginal communities. They were denied access to this administrative review process despite having lodged an application under the Heritage Protection Act many years earlier. The failure of the application to survive various legal and administrative challenges was not related to the merits of the application.

Brennan CJ and McHugh J were prepared to abstract the impact on the applicants of holding the Bridge Act to be valid from the question of the interpretation of the race power. By separating the question of law (the validity of the Bridge Act) from the facts (which included the history of the Heritage Protection Act since 1984, the evolution of the Constitution in the same time period and the more immediate history of the impact of the Bridge Act on the applicants), Brennan CJ and McHugh J did not consider the procedural unfairness to the applicants. When judges draw such a clear distinction between law and fact, the interpretation of the law becomes an exercise of textual manipulation separate and abstracted from the world of practical legal relations. The world of law becomes a logical system of rules which is internally consistent but immune from, and unable to respond to, the factual circumstances that invoke the interpretation of the system of rules in the first place. Living in this hermetically sealed world of law, Brennan CJ and McHugh J ‘succumb to the old occultist urge to crack codes, to distinguish between reality and appearance, to make the invidious distinction between getting it right and making it useful’.[64] Another way of making the same point is to say that Brennan CJ and McHugh J provide a theoretical answer to a practical question. In theory, Parliament has the power to repeal what it has passed. In practice, this rule must be considered in the context of the applicants’ submissions, and the developing traditions of the relevant Acts and the Constitution.

As Brennan CJ and McHugh J saw it, providing an interpretation of s 51(xxvi) was unnecessary to answer the question before them. The transcript makes it clear that all the judges of the Court and all the parties to the dispute were aware that the scope of the race power was likely to be significant in the determination of the validity of future Commonwealth legislation on Aboriginal issues, most notably amendments to the Native Title Act 1993 (Cth).[65] Brennan CJ and McHugh J were no doubt concerned not to give an interpretation of s 51(xxvi) in the abstract which might be used inappropriately in future cases. In this, their concern is consonant with Gadamer’s theory of interpretation. Interpretation is particular and momentary. The judicial role is confined to determining answers to specific disputes. Paradoxically, if this was indeed a concern for Brennan CJ and McHugh J, it led to a failure to consider the relationship between the Bridge Act and s 51(xxvi) in the case before them, which is the most serious abstraction of all. They failed to address the specific dispute and, according to their own reasons for self-imposed restraint, failed to act judicially.


The use of founding intention by the Court to determine the original meaning of a text has its opponents and proponents in both law and hermeneutics. At one extreme, there are theorists who argue that the only valid interpretation of a piece of text is one that is consistent with its original meaning. In hermeneutics, Hirsch is in agreement with Schleiermacher’s assertion of textual validity that ‘[e]verything in a given text which requires fuller interpretation must be explained and determined exclusively from the linguistic domain common to the author and the original public.’[66] Gadamer accepts that historical context is important to interpretation, but only as one of a multitude of factors, and not because it reveals the original meaning of the text.[67] At the other extreme, the pragmatist Richard Rorty argues that interpretation is wholly subjective:

I should think that a text just has whatever coherence it happened to acquire during the last roll of the hermeneutic wheel, just as a lump of clay only has whatever coherence it happened to pick up at the last turn of the potter’s wheel.[68]

In Kartinyeri,[69] each judge accepted that the text of the Constitution had a particular meaning at Federation and that this meaning must form the basis of their contemporary interpretation of its provisions. Not surprisingly then, all the judgments were aligned with the more conventional hermeneutic theories of Hirsch and Schleiermacher. However, the judges differed significantly in how they viewed the impact of external events and textual alterations on foundational meaning. Gummow and Hayne JJ asserted most strongly that nothing in the history of the Constitution since its inception, including the referendum of 1967 and the changing significance of race in the international environment, had altered the meaning of the race power. The text revealed as plain and consistent a meaning now as it did at Federation: ‘it is as well to recall that it is the constitutional text which must always be controlling.’[70] Whether or not the change in the text was intended to benefit Aboriginal people, for Gummow and Hayne JJ, any limitation on the power must be placed in the text. Gaudron J cited only the official ‘yes’ campaign documents and concluded that they did not disclose a clear intention to fundamentally alter the meaning of the section.[71] In the absence of any such clear intention, she relied exclusively on the language and syntax of the section to interpret it.

Kirby J was prepared to make more use of materials external to the Constitution. He outlined a history of federal and state powers to make laws with respect to Aboriginal people. He detailed the events and materials surrounding the incorporation of s 51(xxvi) into the Constitution at Federation, and the 1967 amendment to the section, ‘to understand the cause which occasioned the amendment of the Constitution and to help resolve ambiguities in the resulting text.’[72] He concluded that the materials surrounding the referendum of 1967, which produced an overwhelming majority of people in favour of the textual change, provided a good indication of the intended meaning of s 51(xxvi). In reaching this conclusion, Kirby J had to weigh up the comparative authority of two sources of authorial intent — the framers of the Constitution, the British Parliament and the people at the referendum at Federation, and the Commonwealth Parliament and the people at the referendum surrounding the amendment to the section 67 years later.

Which of these sources is given priority is part of the broader question of the underlying authority of the Constitution as the framework of government in Australia. Giving prominence to a recent textual amendment over the original intention suggests that the ongoing acceptance of the Constitution by the Australian people is the basis of its continued legitimacy, and not its origin in the Convention Debates or its foundational authority as an Act of the British Parliament.[73] By giving prominence to materials surrounding the textual change in 1967, Kirby J introduced the notion of popular sovereignty as a valid source of constitutional authority.[74] The best evidence of the will of the people is a referendum. The concept of popular sovereignty stands in contrast to the unrepresentative nature of the intention revealed in the original Constitution. The original s 51(xxvi) was constructed by the framers in the Convention Debates in the 1890s. They were prominent politicians and pastoralists, entrepreneurs and professionals. Some were elected representatives of colonial Parliaments, others were not. The original Constitution, including s 51(xxvi), was voted on at a referendum of the people of the six original states. Women, Aboriginal people, and non-British landed immigrants and labourers were not allowed to vote. Furthermore, the Constitution was part of an Act of the British Parliament, so to truly account for founding intention, it might be necessary to look to the debates of the parliamentarians in England at the time of the passing of the Commonwealth of Australia Constitution Act 1900 (UK).[75]

Materials surrounding a constitutional referendum may be a more reliable source of meaning than the founding intentions of the framers at Federation because of their temporal proximity. It is possible for counsel and judges interpreting s 51(xxvi) to say, with some authority, what was the significance of the textual amendment if they were participants in events surrounding the referendum. The more closely involved they were, the clearer their understanding would be of the effect of the amendment on the interpretation of the section as a whole.[76] However, there are other problems with relying on original intention, even assuming it can be discovered at all. Is the relevant original intention that of the majority of the legislature, or the majority of the people at the referendum? What materials are most authoritative in establishing the relevant intention? If the intention of the legislature is authoritative, then parliamentary debates and the official materials surrounding the election might be authoritative. If it is the intention of the people voting in the referendum, more reliance might be placed on the understanding of the textual amendment from the media, from rallies in support or opposed to constitutional change, and from advertisements surrounding the referendum. Furthermore, is it possible to talk of collective intention at all? What exactly were people voting for in 1967? How much did they know of the issue? Were there other factors on the political agenda at that time which might explain the way people voted? For one thing, the people and parliamentarians at the time did not have the construction of a bridge from the mainland to Hindmarsh Island in mind when they voted, and the Heritage Protection Act would not exist for another 17 years.

Despite these problems, founding intention played a significant role in Kartinyeri.[77] All parties and judges agreed on the original meaning of s 51(xxvi), and agreed that this meaning was an important foundation to the determination of the contemporary meaning of the section.[78] In this, the case is a resounding endorsement of the recourse to founding intention in Cole v Whitfield.[79] The case went further, providing the Court with an opportunity to consider the relevance of textual changes made through referenda to the interpretation of the section, and in particular, whether a relevant original intention could be found in such materials. There is a clear division within the Court as to the significance of more contemporary constitutional intentions, the lengths the Court should go to discover these intentions and the sources in which they may be found.

In Kartinyeri,[80] the reliance on founding intention by judges and counsel is controversial in law and would be positively alarming to Gadamer. Founding intention makes a number of important assumptions about the nature of texts and the possibility of historical investigation. As to the nature of texts, it assumes a textual stasis. There is a wealth of literary and theoretical criticism that refutes this understanding of texts.[81] Gadamer focuses on the relationship of the reader to the text to determine its meaning. Meaning is produced through engagement with a text, and not through the discovery of a pre-existing meaning. For Gadamer, the search for an original intention is a false use of historical investigation:

Only by forgetting does the mind have the possibility of total renewal, the capacity to see everything with fresh eyes, so that what is long familiar fuses with the new into a many leveled unity.[82]

An investigation into founding intention claims to overcome ‘temporal distance’ to uncover the true original meaning of the text.[83] History cannot be used in this way. A text belongs to a tradition. This tradition is fundamental to the interpretation of the text. It elucidates the past uses of the text and widens the horizons of its possible meanings by placing it in a broader context. Finally, however, the text can only take its meaning from the moment of its application to a specific dispute.


Between the mysterious history of a textual production and the uncontrollable drift of its future readings, the text qua text still represents a comfortable presence, the point to which we can stick.[84]

The law sticks tenaciously to the text. According to the legal mainstream, there is no question that legal texts must be read literally to the extent that this is possible. In Kartinyeri,[85] all the judges held that the words of s 51(xxvi) must be the starting point in any exercise of interpretation. However, the judges differed significantly in how they engaged with the text of s 51(xxvi). For Gummow and Hayne JJ, the section is unambiguous and has a meaning which has been applied consistently since Federation. The text is not limited by implications which can be derived from the 1967 referendum or other potential influences on the interpretation of the section, such as international law.[86] The scope of the operation of the section has also stayed the same. A clear intention of the text emerges despite textual and contextual changes.[87]

For Kirby J, the text is not nearly so clear. Like Gummow and Hayne JJ, he accepted the possibility of textual certainty (as all judges must in order to reach an authoritative judgment) but used the device of ‘ambiguity’ in the case of s 51(xxvi) to expand his inquiry to sources beyond the text:

Where the Constitution is ambiguous, this court should adopt that meaning which conforms to the principles of universal and fundamental rights rather than an interpretation which would involve a departure from such rights.[88]

Although Kirby J went on to suggest that the Court is not authorised to ‘create’ ambiguities, his approach to interpretation is likely to give rise to greater textual ambiguity than that of Gummow and Hayne JJ. For Kirby J, the ambiguity arose from a detailed perusal of the history of the section and, in particular, the referendum of 1967. It is precisely because he took a detailed look at material outside the text that the text itself became less stable, and thus entitled him to look to even more sources in aid of its interpretation. During the proceedings, Kirby J stated that:

It is not hard, ordinarily, to find ambiguity in a Constitution that is expressed in sparse language. We have been here for two days talking about the race power. To say that there is no ambiguity really is rather unconvincing.[89]

This statement suggests that the positing of alternative readings might create sufficient ambiguity to invoke his interpretative principle.

Since interpreters approach the task of understanding the text from their own starting points, bringing to the task of interpretation their own readings, and in the case of legal counsel attempting to find imaginative alternative readings, there will always be ambiguity. This is an alarming prospect to those who strive for determinate and authoritative interpretations of the law. And yet, according to Gadamer’s reasoning, Kirby J’s apparent acknowledgment of the inevitability of ambiguity rings true. Words may have a superficial certainty if interpreted in the abstract, free of alternative readings. But as soon as different perspectives on the tradition of the text are considered, the text will be enveloped by other possibilities that will be enlightening, though contradictory and ambiguous. It is in the conscious engagement of the interpreter with these potential ambiguities that a more meaningful interpretation of the text might be found, albeit momentarily.

Gaudron J made more of the individual words in s 51(xxvi) and their syntax, than did the other judges. She interpreted each word and phrase separately. First, she noted that if the section had simply granted Parliament the power to make laws with respect to ‘the people of any race’, the grant of power would have been very wide.[90] However, since the words ‘the people of any race’ are qualified by the words ‘for whom it is deemed necessary to make special laws’, the latter phrase must have work to do.[91] The phrase has the potential to restrict the extent of the grant of power in a number of ways. There are possible limitations in the definition of the words used in the section. The word ‘for’ has over 20 dictionary meanings. To mention just the first four meanings, ‘for’ could mean ‘in the interest or to the benefit of’, ‘in defence, support, or favour of’, ‘suitable or appropriate to’, or ‘in respect of or with reference to’.[92] Gaudron J interpreted ‘for’ to mean ‘with respect to’, the broadest definition of the word.[93] The word ‘special’ might mean ‘particularly good’ or ‘for a particular purpose’.[94] The first reading would severely limit Parliament’s law-making capacity. Again Gaudron J favoured the broader second reading. She held that what made a law ‘special’ was the fact that it applied only to the people of a particular race, or in other words, its discriminatory nature.[95] Gaudron J’s acceptance of the broader reading of the text in each case is consistent with a principle of interpretation she espouses in Kruger v Commonwealth:

It is settled doctrine that a constitutional grant of power is to be ‘construed with all the generality which the words used admit’. Moreover because of the democratic principles enshrined in the Constitution, constitutional powers are not to be read down to prevent the possibility of abuse. At least that is so in relation to the powers conferred by s 51 of the Constitution.[96]

Having held that the meaning of the words was clear and broad, Gaudron J went on to hold that they might contain inherent operational limitations. In particular, although it was for Parliament to determine whether a special law was ‘deemed necessary’ for the people of a particular race, this deeming was a matter of judgment that could not be exercised arbitrarily.[97] There needed to be material upon which a law could be so ‘deemed’. To be deemed necessary, a special law based on race must relate to a relevant difference and the law must be ‘reasonably capable of being viewed as appropriate and adapted to the difference asserted.’[98] The test for what is ‘reasonably capable of being viewed as appropriate and adapted to the difference asserted’ can only be sensibly applied in the modern context. It requires the Court to exercise a supervisory jurisdiction over how the Parliament applies the law to the facts of racial difference and disadvantage.

For Gaudron J, the context in which the text applies is important to how it is to be interpreted. The context does not change the meaning of the text, but does alter its significance. It may be that, although the meaning of the words in s 51(xxvi) is unchanged, what could be validly deemed necessary in 1901 could no longer be validly deemed necessary in 1998, and that Parliament’s powers to make laws expands or contracts depending on the contemporary circumstances. This is not a novel suggestion. It has long been accepted that the defence power, s 51(vi), works in this way. In times of war, the power is broad, enabling Parliament to pass laws on a wide range of subject matters under the umbrella of ‘defence’.[99] In contrast to defence, however, it is more difficult to identify the indicators of the breadth of the race power at any one time. The circumstances surrounding race relations and racial disadvantage are not as well defined as the circumstances surrounding war and peace. Whether or not Australia is at war depends on an express declaration. The change in circumstances surrounding race has occurred gradually throughout this century. There have been certain defining moments, such as the response to acts of genocide in Europe during the Second World War. This change has manifested itself through new domestic and international attitudes to race and the passage of domestic and international agreements confirming racial equality.[100] According to Gadamer’s reasoning, these difficult factors must be considered when determining the scope of the race power. To make reference to such events is simply to recognise more of the detail of the tradition of the text which is important for its understanding: ‘The harmony of all the details with the whole is the criterion of correct understanding.’[101]

Gaudron J articulated a test of general application to determine the scope of Parliament’s power under s 51(xxvi). The test, that the law must be ‘reasonably capable of being viewed as appropriate and adapted to the difference asserted’, must itself be interpreted to determine the scope of the words within it.[102] Gaudron J seems, therefore, to add a new layer of complication to the determination of the scope of the race power. What is more, the words in the test are of such generality that their interpretation is inevitably problematic. At what point is a law not reasonably capable of being viewed as appropriate and adapted to an asserted difference? According to Gaudron J, one indicator is whether or not the law is for the benefit of the group.[103] But who is to decide what is and what is not beneficial? The discretion unquestionably belongs to Parliament. But to what extent should the Court supervise this discretion? Can the Court make a successful determination of what is and what is not beneficial, and for whom? Should it hear detailed evidence of the effect of the law on a racial group? Gaudron J asserted that ‘the circumstances which presently pertain to Aboriginal Australians are circumstances of serious disadvantage, which disadvantages include their material circumstances and the vulnerability of their culture.’[104] This may be uncontroversial. But what criteria are to be used to make such a determination? And how can such criteria be applied to people of other ‘races’? Are Asian-Australians disadvantaged in the same way? Is Parliament’s law-making power to be fettered if a group is materially well off, but their culture is vulnerable (to use Gaudron J’s two indications of disadvantage)? Are there not other types of ‘disadvantage’ that might be relevant to the scope of Parliament’s power under s 51(xxvi), such as the disadvantage of facing prejudice and racist slurs from members of the majority? And why is disadvantage the test when there is no mention of a concept of ‘disadvantage’ in the Constitution? In order to answer these questions, the Court must engage in difficult questions of policy and ethics which are not articulated in the Constitution and for which it might not be the most appropriate decision-making body. By providing answers to these questions, the Court opens itself to criticism for overreaching its role under Chapter III of the Constitution.

In defence of Gaudron J’s test, it opens up many new ways to construe the text of s 51(xxvi) and thus the possibility of reinvigorating the words of the Constitution. The test recognises that the act of interpretation cannot be accomplished without seriously engaging with the political and ethical significance of the impugned legislation. The new layer of words in her secondary test might be argued to provide a means to explore other aspects of the history of the text and the preconceptions of the interpreter. Furthermore, her test recognises that it is only in the application of the text of the Constitution to a particular law that the words have significance. Where Kirby J embraced the historical and contemporary context to find that the meaning of a constitutional provision had altered, Gaudron J held that a provision can have the same abstract meaning but a very different significance when applied in context. Where Kirby J read considerable meaning into the words of the text themselves (any laws actually means laws only for the benefit), Gaudron J held that meaning is constituted through application (a law can only be deemed necessary if reasonably capable of being viewed as appropriate and adapted to an asserted difference). Both exercises attempted to breathe life into a text which appears tired and anachronistic if interpreted according to traditional legal methods. Of course there comes a point at which a text can no longer support an asserted meaning without reinventing the signifying words. In Kartinyeri, the judges vary considerably on when this point is reached. When it is reached, the only option is constitutional amendment.


The existence of a constitutional power to discriminate detrimentally against people on the basis of race is an extraordinary power to have in a modern constitution. Not surprisingly, throughout the submissions of counsel, the Court sought guidance on what supervisory jurisdiction it could exercise over Parliament’s use of the race power.[105] How judges interpret the text of the Constitution is crucial to how they exercise a supervisory jurisdiction, and consequently, to what role they play within the constitutional structure of government.

Gummow and Hayne JJ asserted that there is a final overarching jurisdiction vested in the Court: ‘the judgment as to what is “deemed necessary” is that of the parliament. Nevertheless, it may be that the character of a law purportedly based upon s 51(xxvi) will be denied to a law enacted in “manifest abuse” of that power of judgment.’[106] They also alluded to other possible limitations on Parliament’s power, none of which they pursued in the case at hand.[107] The invocation of a manifest abuse of power is a controversial way for the Court to assert a supervisory jurisdiction. It is not connected to the text of the Constitution, and therefore requires the Court to directly confront the law-making power of Parliament without the cloak of legitimacy that the process of interpretation might provide. The test as stated requires the Court not only to determine whether or not a law is valid, but also to decide whether, even if the law is technically valid under the Constitution, it ought nevertheless be denied validity. To assert this power, the Court must rely on a natural or moral authority that exists outside the Constitution. In Union Steamship Co of Australia Pty Ltd v King,[108] having rejected any limiting force for the words ‘peace, order and good government’, the whole Court posed but did not answer the question ‘[w]hether the exercise of ... legislative power is subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law.’[109]

Some members of the High Court have recently rejected a final supervisory jurisdiction in the courts. In Kable v Director of Public Prosecutions (NSW), Dawson J emphasised the absolute sovereignty of Parliament.[110] It might be argued that the Constitution vests the role of denying the validity of a law squarely in the legislature. There will always be a dilemma for the Court of whether they should so blatantly disregard the sovereignty of Parliament. Therefore, it is likely that the ‘manifest abuse’ test will be invoked, if at all, only in exceptional circumstances. For this reason, Kirby J considered the ‘manifest abuse’ test to be unworkable.[111] Since there is no clear indication of what is a manifest abuse, the Court will be loath to exercise its power to strike down legislation. By progressively passing more radical laws, Parliament might be able to validly legislate an extremely abhorrent policy without the Court ever finding a manifest abuse of power. Kirby J concluded that such a final, extra-constitutional jurisdiction vested in the courts to strike down legislation is not a sufficient safeguard against a parliamentary abuse of power.[112]

For Kirby and Gaudron JJ, the exercise of a supervisory jurisdiction is directly connected to the interpretation of the text of the Constitution. By providing a restrictive reading of s 51(xxvi), Gaudron and Kirby JJ effectively limit the legislative power of Parliament under the Constitution. This approach has several advantages. It means that the High Court is actively engaged as a supervisor of legislative action at all times. The supervision is linked to its role as interpreter of the Constitution. The exercise of the supervisory jurisdiction is not couched in the impenetrable language of ‘manifest abuse’, but is explained in detail through the process of interpreting the Constitution in a particular factual context. However, there are concurrent dangers. The use of a dynamic interpretative method combines and confuses the roles of the legislature and the Court. Interpretation becomes seen as a vehicle for making law and not simply for finding it. This understanding of the Court’s interpretative process challenges the notion of a separation of powers, and may risk weakening the Court’s constitutional legitimacy.


If there is a single conclusion to be drawn from this paper, it is that the interpretation of a constitutional text for application in a particular context is an exceedingly difficult exercise. Given the law’s need to reach a final determination in constitutional cases, there is a strong temptation for judges of the High Court to take the most straightforward and most easily justifiable route to judgment. This leads judges to resort to a strict and abstract interpretation of legal rules,[113] or to an assertion of an original authority in the history of the Constitution.[114] Alternatively, judges provide new theories of interpretation to justify particular readings of the text of the Constitution.[115] The work of Hans-Georg Gadamer is a reminder to the law that the tradition of a text and the present context in which it is to be applied should be of fundamental concern in the interpretation of legal texts.

[*] BA, LLB (Hons) (Adel), LLM (UBC); Lecturer in Law, Murdoch University.

[1] K M Newton, Interpreting the Text: A Critical Introduction to the Theory and Practice of Literary Interpretation (1990) 40–1.

[2] Australian Constitution s 76(i).

[3] John Rundell, ‘Gadamer and the Circles of Hermeneutics’ in David Roberts (ed), Reconstructing Theory (1995) 10, 10.

[4] For a general discussion of hermeneutics and the law, see Costas Douzinas, Ronnie Warrington and Shaun McVeigh, Postmodern Jurisprudence: The Law of Text in the Texts of Law (1991).

[5] See, eg, E D Hirsch, Validity in Interpretation (1967).

[6] Hans-Georg Gadamer, Truth and Method (2nd revised ed, 1993) 295.

[7] Ibid 267.

[8] Ibid 269.

[9] Rundell, above n 3, 17.

[10] Gadamer, above n 6, 293.

[11] Ibid 309: ‘A law does not exist to be understood historically, but to be concretized in its legal validity by being interpreted. ... This implies that the text ... must be understood at every moment, in every concrete situation, in a new and different way.’

[12] See, eg, Friedrich Nietzsche, ‘On Truth and Lies in a Nonmoral Sense’ in Daniel Breazeale (ed and trans), Philosophy and Truth (1979) 79; Jacques Derrida, Of Grammatology (trans Gayatri Chakravorty Spivak, 1976); Richard Rorty, ‘The Pragmatist’s Progress’ in Stefan Collini (ed), Interpretation and Overinterpretation (1992) 89.

[13] David Couzens Hoy, ‘Interpreting the Law: Hermeneutical and Poststructuralist Perspectives’ (1985) 58 Southern California Law Review 135, 157–60.

[14] Gadamer, above n 6, 295.

[15] Hoy, above n 13, 157.

[16] Brice Wachterhauser (ed), Hermeneutics and Truth (1994) 6.

[17] See, eg, A-G (NSW) v Brewery Employés Union of NSW [1908] HCA 94; (1908) 6 CLR 469; Huddart Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330.

[18] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129.

[19] See, eg, Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1; Kartinyeri v Commonwealth [1998] HCA 22; (1998) 152 ALR 540.

[20] Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360.

[21] See, eg, Fiona Wheeler, ‘Original Intent and the Doctrine of the Separation of Powers in Australia’ (1996) 7 Public Law Review 96; Greg Craven, ‘Original Intent and the Australian Constitution — Coming Soon to a Court Near You?’ (1990) 1 Public Law Review 166; Jeffrey Goldsworthy, ‘Implications in Language, Law and the Constitution’ in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994) 150; Jeffrey Goldsworthy, ‘Originalism in Constitutional Interpretation’ [1997] FedLawRw 1; (1997) 25 Federal Law Review 1.

[22] Greg Craven, ‘The Crisis of Constitutional Literalism in Australia’ in H P Lee and George Winterton (eds), Australian Constitutional Perspectives (1992) 1.

[23] For the adoption of this term, see John Williams and John Bradsen, ‘The Perils of Inclusion: The Constitution and the Race Power’ [1997] AdelLawRw 7; (1997) 19 Adelaide Law Review 95, 102–5.

[24] See, eg, Paul Finn, ‘Of Power and the People: Ends and Methods in Australian Judge-Made Law’ (1994) 1 Judicial Review 255; Bryan Horrigan, ‘Is the High Court Crossing the Rubicon? — A Framework for Balanced Debate’ (1995) 6 Public Law Review 284; Sir Anthony Mason, ‘The Interpretation of a Constitution in a Modern Liberal Democracy’ in Charles Sampford and Kim Preston (eds), Interpreting Constitutions: Theories, Principles and Institutions (1996) 13; Sir Anthony Mason, ‘Trends in Constitutional Interpretation’ [1995] UNSWLawJl 13; (1995) 18 University of New South Wales Law Journal 237.

[25] Rorty, above n 12, 105.

[26] See, eg, Craven, ‘The Crisis of Constitutional Literalism’, above n 22, who has considered this interpretation of the progressivist approach.

[27] See, eg, Mason, ‘The Interpretation of a Constitution in a Modern Liberal Democracy’, above n 24.

[28] See, eg, Ronald Dworkin, Taking Rights Seriously (1977) 81–130.

[29] [1998] HCA 22; (1998) 152 ALR 540 (‘Kartinyeri’).

[30] Ibid.

[31] Australian Constitution s 51(xxvi).

[32] Kartinyeri [1998] HCA 22; (1998) 152 ALR 540, 576–7 (Kirby J). The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (‘Heritage Protection Act’) and the Native Title Act 1993 (Cth) were both passed after consultation with indigenous groups and with, at least, their qualified support. For references to this consultation and support, see Commonwealth, Parliamentary Debates, House of Representatives, 9 May 1984, 2129–33 (Clyde Holding, Minister for Aboriginal Affairs) in relation to the Heritage Protection Act; Commonwealth, Parliamentary Debates, House of Representatives, 16 November 1993, 2877–8 (Paul Keating, Prime Minister) in relation to the Native Title Act 1993 (Cth). For judicial consideration of the validity of these pieces of legislation, see Kartinyeri [1998] HCA 22; (1998) 152 ALR 540 which considers the Heritage Protection Act and the Bridge Act, and Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373 which considers the Native Title Act 1993 (Cth).

[33] Kartinyeri [1998] HCA 22; (1998) 152 ALR 540, 573 (Kirby J).

[34] Ibid 578.

[35] Constitution Alteration (Aboriginals) Act 1967 (Cth).

[36] Tony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (2nd ed, 1998) 1186.

[37] Transcript of Proceedings, Kartinyeri v Commonwealth (High Court, Brennan CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, commencing 5 February 1998) 5 February 1998 <> .

[38] Kartinyeri [1998] HCA 22; (1998) 152 ALR 540, 553–6 (Gaudron J), 567–70 (Gummow and Hayne JJ), 589–96 (Kirby J).

[39] Ibid 548 (Brennan CJ and McHugh J), 551, 560 (Gaudron J), 561 (Gummow and Hayne JJ), 573, 578 (Kirby J).

[40] Transcript of Proceedings, Kartinyeri v Commonwealth (High Court, Brennan CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, commencing 5 February 1998) 6 February 1998 <> .

[41] Ibid.

[42] Goldsworthy, ‘Originalism in Constitutional Interpretation’, above n 21, 31–2.

[43] There are some well-known examples in s 51 of the Australian Constitution. The word ‘aliens’ in s 51(xix) means a person who is not a citizen of Australia or who has not been naturalised: Nolan v Minister of State for Immigration and Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178, 183–6 (Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ), 189–93 (Gaudron J). In the early years of the colony it was assumed that a British subject could not be an alien: Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277. In 1984, an amendment to the Australian Citizenship Act 1948 (Cth) finally dispelled this assumption. Thus, although the meaning of ‘aliens’ has not changed since Federation, the extent of its application has. Likewise, ‘[p]ostal, telegraphic, telephonic, and other like services’ in s 51(v) refers to modes of communication. Although this meaning has not changed since Federation, the section now refers to new modes of communication not in contemplation at Federation, such as television and the internet.

[44] In Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360, the Court had recourse to the Convention Debates to overturn over 80 years of jurisprudence on the meaning of ‘absolutely free’ in s 92 of the Australian Constitution.

[45] Hirsch, above n 5, 255.

[46] Ibid 251.

[47] Gadamer, above n 6, 302.

[48] [1998] HCA 22; (1998) 152 ALR 540, 585.

[49] Hirsch, above n 5, 255.

[50] Gadamer, above n 6, 299.

[51] Transcript of Proceedings, Kartinyeri v Commonwealth (High Court, Brennan CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, commencing 5 February 1998) 5 February 1998 <> . Brennan CJ questioned the scope of the power in 1945, and McHugh J questioned its scope at the time of the Vietnam War in 1965.

[52] Gadamer, above n 6, 297.

[53] Brennan CJ and McHugh J acknowledged that an amending Act which ‘so changed the character of an earlier Act as to deprive that Act of its constitutional support’ would have to be treated differently, but held that the Bridge Act did not fit into this category: Kartinyeri [1998] HCA 22; (1998) 152 ALR 540, 550.

[54] Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, 264–5 (Knox CJ, Higgins, Gavan Duffy, Powers, Rich and Starke JJ). Cf Re A Reference by the Governor in Council Concerning Certain Questions Relating to the Secession of Quebec from Canada [1998] 2 SCR 217; 161 DLR (4th) 385.

[55] Kartinyeri [1998] HCA 22; (1998) 152 ALR 540, 560. Gummow and Hayne JJ held that the Bridge Act amended the Heritage Protection Act. They held that the validity of the Bridge Act must be considered alone and found it valid on its terms: at 565–9. Only Kirby J considered that either alone, or as an amendment to the Heritage Protection Act, the Bridge Act was invalid: at 600–2.

[56] Ibid 548.

[57] Ibid 550.

[58] Gadamer, above n 6, 309.

[59] [1992] HCA 23; (1992) 175 CLR 1.

[60] Kartinyeri [1998] HCA 22; (1998) 152 ALR 540, 550 (emphasis added).

[61] Australia Act 1986 (Cth); Australia Act 1986 (UK).

[62] Chapman v Tickner (1995) 55 FCR 316; Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451.

[63] Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1.

[64] Rorty, above n 12, 108.

[65] Transcript of Proceedings, Kartinyeri v Commonwealth (High Court, Brennan CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, commencing 5 February 1998) 5 February 1998 <> and 6 February 1998 <> . During submissions, various references were made to the implications of the interpretation of the race power on the validity of the Native Title Act 1993 (Cth).

[66] F D E Schleiermacher, Hermeneutik (Heinz Kimmerle ed, 1959) 90, cited in E D Hirsch, ‘Three Dimensions of Hermeneutics’ (1972) 3 New Literary History 245, 247.

[67] See generally Gadamer, above n 6, 295–7, 302.

[68] Rorty, above n 12, 97.

[69] [1998] HCA 22; (1998) 152 ALR 540.

[70] Ibid 570 (Gummow and Hayne JJ).

[71] Ibid 553–4.

[72] Ibid 586.

[73] See, eg, Geoffrey Lindell, ‘Why is Australia’s Constitution Binding? — The Reasons in 1900 and Now, and the Effect of Independence’ [1986] FedLawRw 2; (1986) 16 Federal Law Review 29.

[74] Cf Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579, 634 (Kirby J). In summarising the case for the applicant on the matter of popular sovereignty, Kirby J pointed to criticism levelled at the concept of popular sovereignty and seemed to have some sympathy with it. He might be read as changing his position to some extent in Kartinyeri [1998] HCA 22; (1998) 152 ALR 540.

[75] 63 & 64 Vict, c 12.

[76] In the same way, the first High Court Justices, Griffith CJ, Barton and O’Connor JJ were able to rely on their proximity to, and involvement in, the framing of the Constitution prior to Federation to inform their interpretations of its provisions.

[77] [1998] HCA 22; (1998) 152 ALR 540.

[78] Transcript of Proceedings, Kartinyeri v Commonwealth (High Court, Brennan CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, commencing 5 February 1998) 5 February 1998 <> and 6 February 1998 <> .

[79] [1988] HCA 18; (1988) 165 CLR 360.

[80] [1998] HCA 22; (1998) 152 ALR 540.

[81] See, eg, Raman Selden, Peter Widdowson and Peter Brooker, A Reader’s Guide to Contemporary Literary Theory (4th ed, 1997); Umberto Eco, The Role of the Reader: Explorations in the Semiotics of Texts (1979); Stanley Fish, Doing What Comes Naturally: Change, Rhetoric and the Practice of Theory in Literary and Legal Studies (1989).

[82] Gadamer, above n 6, 16.

[83] Ibid 297.

[84] Umberto Eco, ‘Between Author and Text’ in Stefan Collini (ed), Interpretation and Overinterpretation (1992) 67, 88.

[85] [1998] HCA 22; (1998) 152 ALR 540.

[86] This is in contrast to the approach of Kirby J, who was prepared to take account of these and other sources in aid of the interpretation of s 51(xxvi). See discussion in above Part III.

[87] Kartinyeri [1998] HCA 22; (1998) 152 ALR 540, 570 (Gummow and Hayne JJ): ‘[I]t is as well to recall that it is the constitutional text which must always be controlling.’

[88] Ibid 598 (Kirby J).

[89] Transcript of Proceedings, Kartinyeri v Commonwealth (High Court, Brennan CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, commencing 5 February 1998) 6 February 1998 <> .

[90] Kartinyeri [1998] HCA 22; (1998) 152 ALR 540, 555.

[91] Ibid.

[92] The Concise Oxford Dictionary of Current English (9th ed, 1995) 528. Murphy J favoured the first of these definitions when interpreting s 51(xxvi) in Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168, 242.

[93] Kartinyeri [1998] HCA 22; (1998) 152 ALR 540, 556.

[94] The Concise Oxford Dictionary of Current English (9th ed, 1995) 1334.

[95] Kartinyeri [1998] HCA 22; (1998) 152 ALR 540, 556.

[96] Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1, 105 (Gaudron J) (citations omitted).

[97] Kartinyeri [1998] HCA 22; (1998) 152 ALR 540, 557.

[98] Ibid.

[99] For a discussion of the changing scope of the defence power, see generally Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1.

[100] See, eg, Racial Discrimination Act 1975 (Cth); International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 660 UNTS 195 (entered into force 4 January 1969).

[101] Gadamer, above n 6, 291.

[102] Kartinyeri [1998] HCA 22; (1998) 152 ALR 540, 557.

[103] Ibid 558.

[104] Ibid.

[105] Transcript of Proceedings, Kartinyeri v Commonwealth (High Court, Brennan CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, commencing 5 February 1998) 6 February 1998 <> . Kirby J discussed some of the points raised in argument on the issue of the Court’s jurisdiction: Kartinyeri [1998] HCA 22; (1998) 152 ALR 540, 578–9.

[106] Kartinyeri [1998] HCA 22; (1998) 152 ALR 540, 567 (citations omitted).

[107] The first is a limit inherent in textual interpretation. This limitation is central to Gaudron and Kirby JJ’s approach to invoking a supervisory jurisdiction. The second is a limitation inherent in the separation of powers. The third is a potential limitation in the ‘rule of law’. The concept of a ‘manifest abuse’ may emanate from this third limitation: ibid 569 (Gummow and Hayne JJ).

[108] [1988] HCA 55; (1988) 166 CLR 1.

[109] Ibid 10.

[110] [1996] HCA 24; (1996) 189 CLR 51, 71. See also Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1, 105 (Gaudron J): ‘It is settled doctrine that a constitutional grant of power is to be “construed with all the generality which the words used admit”. Moreover because of the democratic principles enshrined in the Constitution, constitutional powers are not to be read down to prevent the possibility of abuse’ (citations omitted).

[111] Kartinyeri [1998] HCA 22; (1998) 152 ALR 540, 596–8 (Kirby J).

[112] Ibid.

[113] See eg, Brennan CJ and McHugh J: ibid 542–51.

[114] See eg, Gummow and Hayne JJ: ibid 560–72.

[115] See eg, Gaudron J: ibid 551–60.

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