Stone, Adrienne --- "Comparativism in Constitutional Interpretation" [2009] UMelbLRS 15

Last Updated: 27 September 2010

This article was first published in the New Zealand Law Review, pp.45-68, 2009

Heritage Lecture:
Comparativism in Constitutional Interpretation

Adrienne Stone[*]

Introduction

Like most judges charged with the interpretation of constitutions, the judges of the High Court of Australia commonly refer to, analyse, and are sometimes persuaded by the analyses of courts in other countries deciding similar questions. Recently in Roach v Electoral Commissioner (‘Roach’),[1] the High Court considered a challenge to a 2006 amendment to the Commonwealth Electoral Act 1918 (Cth) that extended the class of disenfranchised prisoners from any person serving a sentence of three years or longer[2] to any person ‘who is serving a sentence of imprisonment’.[3] In the course of deciding that this law contravened the requirement of the Australian Constitution that members of Parliament be ‘directly chosen by the people’,[4] the judges referred in the course of their reasons to decisions of the Supreme Court of Canada and the European Court of Human Rights.[5]

This practice raises two questions that are at the centre of my lecture: whether judges interpreting constitutions should use foreign precedent in that task and, if so, how that precedent might be used.

To those who are not deeply engaged in constitutional law, this topic might seem technical and arcane, and thus a surprising choice for a public lecture. However, it raises fundamental questions. It raises questions about the nature the judicial obligation to show fidelity to the constitution itself. Is it proper for judges charged with interpreting a constitution which is expressed in writing and which has its own history, to be attentive to decisions mode elsewhere in different contexts and in relation to different constitutional texts?

It also raises related questions about a constitution’s role in shaping national identity. Should we understand a constitution as giving effect to a unique form of government, shaped by its own history and in response to local conditions? Or should we understand a constitution as implementing a form of government shared with other democracies? In other words, does a constitution reveal that the political community it governs is unique or that it is a member of an international community with shared values? Once these underlying questions are revealed, it should be less surprising that the question is actually hotly debated amongst scholars of constitutional law and judges charged with constitutional interpretation.

I am also aware that I am speaking about this problem in a context that is quite different to Australia’s. With no written constitution, the question of the use of foreign law in constitutional interpretation might seem inapplicable to New Zealand. Nonetheless, the New Zealand Bill of Rights Act 1990 (NZ), despite its status as an Act of Parliament rather than entrenched constitution, performs much the same role of identifying fundamental commitments and, perhaps, establishing national identity. Thus, the utility of foreign precedent, and particularly the manner of its use, are questions raised squarely by the New Zealand Bill of Rights Act.

Finally, I should note that while there is a parallel issue that arises in relation to the use of international law, I will put it aside, because it raises rather particular issues that would require separate treatment. International law raises the dimension of obligation: international law, unlike the judgments of foreign courts, sometimes places obligations on nation states. The matter is further complicated by the distinct forms that international law takes and the sources from which is drawn. Given the dimension of obligation, it may be that the case for the use of international law is even stronger than the case for the use of foreign domestic law. However, it deserves at least a separate treatment, which I will not attempt here.

Constitutional Comparativism: The Debate So Far

A The United States

As with many debates in constitutional theory, the debate over constitutional comparativism has its origin (and finds it fullest and most vigorous expression) in the United States. Its most famous interlocutors are Scalia J, on the one hand, and Kennedy and Breyer JJ, on the other. Like so many debates about the United States Constitution, it has produced an especially interesting literature that has captivated constitutionalists elsewhere.[6]

A recent flare-up of the American debate occurred in a series of Supreme Court decisions concerning the ‘cruel and unusual punishments’ prohibition of the Eighth Amendment to the United States Constitution and the ‘due process’ clause of the Fifth Amendment.[7] In Lawrence v Texas[8] in 2003, a majority of the Court (overruling Bowers v Hardwick)[9] found unconstitutional a Texas law criminalizing certain homosexual sexual activity. Foreign law — including the decrimalization of homosexual sex in Britain in the 1960s[10] — was relevant to the determination of the Supreme Court of the United States that the Texas law violated the respect for privacy required by the due process clauses of the Fourteenth Amendment.

Foreign law has also featured in a series of recent decisions on the death penalty. In Atkins v Virginia[11] in 2002, the Court held, by majority, that the Eighth Amendment’s prohibition on ‘cruel and unusual punishments’ prohibited the imposition of the death penalty on the intellectually disabled. In Roper v Simmons[12] in 2005, the Supreme Court held, by majority, that the Eighth Amendment precluded the application of the death penalty to offenders under the age of 18 at the time of the offence.[13]

I will dwell on the Eight Amendment a moment because these cases, in particular Roper v Simmons, are at the centre of my analysis of the United States position. The Eighth Amendment prohibits ‘cruel and unusual punishments’ and that concept, according previous Supreme Court precedent, takes its meaning from ‘evolving standards of decency’.[14] To put it another way, the meaning of the Eighth Amendment depends partly on modern values. The universal rejection of the death penalty for minors in other countries was thus evidence, at least for the majority, that the execution of minors was contrary to ‘evolving standards of decency’ and that it contravened the ‘cruel and unusual’ standard.[15]

The debate is marked by rather intemperate judicial language, most especially from Scalia J. Consider Scalia J’s response to the citation of foreign legal sources in Lawrence v Texas: ‘this Court ... should not impose foreign moods, fads, or fashions on Americans’.[16] Or, in response to the majority opinion in Roper v Simmons, Scalia J began by recalling Alexander Hamilton’s characterization of the judiciary as a body with ‘neither FORCE nor WILL but merely judgment’[17] and continued:

What a mockery today’s Court’s opinion makes of Hamilton’s expectation ... I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective view of five Members of this Court and like-minded foreigners ...[18]

One commentator captured the flavour of the debate in the Supreme Court by invoking the image of a judicial ‘Punch and Judy show’, with each foreign citation leading to a predictable critical response.[19] The ensuing public debate at its most hysterical has seen calls among conservative commentators and politicians for Kennedy J’s impeachment.[20]

The clearest motivation for Scalia J’s anti-comparativism lies in other aspects of his Honour’s judicial philosophy. Even more well known than his anti-comparativism is his commitment to textualism and originalism.[21] That is, Scalia J believes that the United States Constitution should be interpreted according to its text, given meaning principally by reference to the public meaning it had at the time of its ratification in the late eighteenth century. Thus, his Honour’s objection to the ‘evolving standards of decency’ test — used as a measure of what constitutes cruel and unusual punishment — is that that standard as hopelessly uncertain, subject to change and unfaithful to the original understanding of the Constitution.[22] His Honour’s objection is not just to the use of foreign law but to any doctrinal overlay that allows judges to impose their own conception of a constitutional provision, rather than give effect to its historically determined meaning.

B Comparativism in the Australian High Court

This debate appears to have an echo in recent judgments in the Australian High Court, where Heydon J appears to be emerging as Australia’s own ‘Justice Scalia’, implacably opposed to the use of foreign law in constitutional interpretation. It is the emergence of this strand of opinion that has inspired me most of all to take up the debate in this lecture.

Roach,[23] the case concerning exclusion of prisoners from the franchise, which I have already mentioned, provides the most important recent example. The Court, with Hayne and Heydon JJ dissenting, concluded that the 2006 amendment (disenfranchising all prisoners)[24] was invalid but that the pre-existing restrictions on the prisoner franchise (disenfranchising only prisoners serving sentences of three years or longer)[25] were valid. Although the Australian Constitution allowed prisoners who committed serious offences to be denied voting rights, the blanket ban imposed by the amended law was impermissibly broad.

In their approach to comparative materials, the four judgments can be placed into three groups. At one end of the spectrum is the judgment of the Gleeson CJ, who, without apparently feeling any need to justify the practice, relies on foreign law in the course of his reasons. At the other end of the spectrum stands Heydon J, who appears to object in principle to the use of comparative law in most circumstances. In the middle stand the joint majority judgment of Gummow, Kirby and Crennan JJ and the dissent of Hayne J. Although these latter two judgments differ on the result, they demonstrate a similar approach to the comparative materials: they do not oppose the use of comparative law altogether[26] but express some reservations about the use of the comparative material in this case.[27] I will put these latter two judgments to one side for the moment, though I will return at the end of this lecture to explore the reasons for their refusal to consult foreign sources in this case.

(a) Gleeson CJ: The comparativist

Gleeson CJ was in the majority in concluding that the blanket exclusion effected by the 2006 amendment was invalid. His Honour’s judgment is distinctive, however, for his willingness to refer to foreign authority, in particular to the decisions of the Supreme Court of Canada in Sauvé v Canada (Chief Electoral Officer)[28] and the European Court of Human Rights in Hirst v The United Kingdom (No 2).[29]

The comparative element of the case arose in this way. The Australian Constitution requires that the members of Parliament be ‘directly chosen by the people’.[30] Gleeson CJ, in turn, interpreted this as a requirement that there be ‘a substantial reason for exclusion from such participation’.[31] Comparative analysis becomes relevant in determining what counts as a substantial reason. Thus, the Supreme Court of Canada’s decision in Sauvé v Canada (Chief Electoral Officer) was cited by Gleeson CJ in course of reaching his Honour’s conclusion that a democratic society has an interest in curtailing ‘the vote temporarily of people who have demonstrated a great disrespect for the community by committing serious crimes, on the basis that civic responsibility and respect for the rule of law are prerequisites to democratic participation’.[32]

(b) Heydon J: The anti-comparativist.

By contrast, Heydon J utterly rejected the comparative material. Of the reference to a range of international material and comparative material by the plaintiff in Roach, Heydon J wrote:

these instruments can have nothing whatever to do with the construction of the Australian Constitution. These instruments did not influence the framers of the Australian Constitution, for they all postdate it by many years. ... The language they employ is radically different.[33]

This anti-comparativism is evident in at least one other of his Honour’s judgments. In Forge v Australian Securities and Investments Commission (‘Forge’),[34] the High Court considered whether Ch III of the Australian Constitution prevented the appointment of acting judges to the Supreme Courts of the Australian states. In the course of rejecting that contention, Heydon J was emphatic in his Honour’s rejection of any insight to be drawn from foreign law. As in Roach, the relevant passage is short and emphatic. In its entirety it is as follows:

Foreign law. Considerable reliance was placed on cases on the European Convention for the Protection of Human Rights and Fundamental Freedoms, Art 6; the Canadian Charter of Rights and Freedoms, s 11(d) and the Bill of Rights of the Constitution of the Republic of South Africa, s 34. These documents all post-dated Ch III. They did not lead to Ch III and they were not based on Ch III. Accordingly, no assistance is to be obtained from cases on these documents in construing Ch III and evaluating its impact on State laws.[35]

As in Roach, this statement is an unqualified objection to the use of comparative law, rather than an objection to its use in the particular case in question. Moreover, although it is not quite as explicit in the judgment of Heydon J as it is in the judgments of Scalia J, it appears that Heydon J’s anti-comparativism is also driven by a commitment to originalism.

Objections to Comparativism

A Originalism

As I have portrayed it so far, the debate over the use of foreign authority in constitutional law quickly becomes a debate about the place of originalism in constitutional interpretation, which in turn is one aspect of a much larger debate about constitutional interpretation.

For this reason, a truly comprehensive treatment of the debate about comparative constitutional law would engage fully with the long and complex debate about originalism (and indeed constitutional interpretation generally). Perhaps to your relief, however, I will engage with this aspect of the debate only briefly and suggest that it can be largely sidestepped for our purposes. I do not take this path because I think that originalism as a method of constitutional interpretation can be easily dismissed. On the contrary, originalist methods — by which I mean interpretation by reference to a historically determined meaning of the constitution under consideration — forms a part of constitutional orthodoxy, at least in Australia.[36]

B Why originalism does not preclude constitutional comparativism

My first response, then, to originalist objections to comparativism is to concede a lot of ground to originalism as a widely accepted method of constitutional interpretation. The reason that I sidestep this question of its correctness is that there is a sense in which I think that the correctness of originalism as an interpretive approach is not decisive of the question I am considering.

First, there are a class of cases to which the originalist objection self-evidently does not apply. The framing of the Australian Constitution was clearly influenced by the United States Constitution. Thus, reference by the High Court to the United States Constitution and United States constitutional law as it stood at the time of federation may well be an exercise of originalist method.[37]

But even putting these cases to one side, there is a more fundamental objection to reliance on originalism to support blanket opposition to comparativism in constitutional interpretation. In order for originalism to preclude recourse to comparativism in constitutional cases — that is, in order for it to support the in principle objection to comparativism evident in the judgments of Scalia J (and implicit in the judgments of Heydon J) — one would have to establish both that the a constitution should be interpreted by reference to its original meaning or understanding and that originalism and other orthodox methods of constitutional interpretation provide an answer to all or most significant constitutional cases.

It is only the second point that I wish to deny. It seems too obvious to bear repeating but it is apparently necessary to say that there are occasions on which the historical record yields no satisfactory answer in particular cases. The historical record may be incomplete or open to competing interpretations. Indeed, it is notable that the judges in both the majority and minority in Roach consulted the historical record extensively.[38] Given the difference of opinion between the majority and minority in Roach, that case may itself demonstrate the uncertainty created by a complex historical record. Historical inquiry as to original meaning or understanding of a provision yields only a principle,[39] expressed in general terms, which then requires considerable interpretation in its application to particular circumstances.

The ‘incompleteness’ of originalism as an interpretive method is especially evident if one adopts a moderate form of originalism, according to which constitutional meaning may change over time.[40] As Jeffrey Goldsworthy has shown, moreover, this idea is familiar to Australian constitutional lawyers, who have long been accustomed to the idea that the Australian Constitution’s meaning might change within certain bounds. Thus, for instance, it is accepted that the essential meaning or ‘connotation’ of constitutional terms remain constant, while their ‘denotations’ (the things in the world to which they refer) may change.[41] Once moderate forms of originalism are accepted — as they seem to be in the Australian High Court — the scope for changes in meaning within the realm of judicial discretion correspondingly expands.

For all these reasons, it is not necessary in this lecture for me to engage fully with the question of the correctness of originalism because my argument is that even accepting the correctness of originalism — or at least the plausible moderate form of originalism that is dominant in the High Court — a significant category of cases will remain in which originalism provides no answer, or more likely an incomplete answer.

Of course, the strength of the case for comparativism in constitutional interpretation will vary according to the strength of available historical and other interpretive resources including, where appropriate, original meaning or understanding. But where the available interpretive resources are weak, there is no reason for the kind of in principle exclusion of comparative law evident in Scalia J’s writings and strongly implied by Heydon J’s judgments in Forge and Roach.

C Constitutional localism

The objection that comparativism is inconsistent with originalist methods of constitutional interpretation need not, therefore, detain us much longer. At most, originalist methods constrain, but do not eliminate, opportunities for constitutional comparativism.

But the American debate reveals as well a second objection to constitutional comparativism that requires serious consideration. Some critics of comparativism resist references to foreign law because of a preference for local solutions. That is, their view is that judges ought to interpret a constitution with an eye to local values and local conditions, making their own judgments rather than deferring to judgments made elsewhere. This position can certainly be detected in Scalia J’s anti-comparativism — at least as a fall back to his Honour’s originalist theory of constitutional interpretation. Thus in Stanford v Kentucky,[42] a death penalty case preceding and overturned by Roper v Simmons,[43] Scalia J reluctantly applied the ‘evolving standards of decency’ test but insisted that ‘it is American conceptions of decency that are dispositive’.[44]

I will eventually suggest that this sentiment does not preclude reference to foreign law in constitutional decision-making. Nonetheless, there are reasons to pay close attention to this kind of argument. I will advance three.

First, in relation to constitutional rights, at least, the case for comparativism is weakened if one accepts, as I do, that rights are the subjects of pervasive and practically ineradicable disagreement.[45] This argument, powerfully developed by the New Zealand legal philosopher Jeremy Waldron, is wielded as part of Waldron’s argument against constitutional rights, which is not my purpose here. I would simply note that the idea that there are reasonable and competing conceptions of a right weakens the case for adopting the conceptions developed by courts elsewhere because it opens up the possibility that it is reasonable to disagree with the decisions of others on rights questions.

Secondly, the suggestion that we should prefer locally fashioned solutions to constitutional questions responds to one important aspect of constitutionalism. Constitutions have a symbolic power that arises from their constitutive role. Precisely because they provide a framework for government, they are also seen as a repository of important values. Put at its highest, this view has it that constitutions are expressive of national identity. If constitutions play this role, we might reasonably expect that they will impose different standards in different circumstances.[46]

Thirdly, there are considerations of the democratic legitimacy of constitutional review that might count in favour of a court interpreting a constitution in ways that are responsive to local conditions, and take local moral standards and political opinion into account when deciding constitutional questions. Political scientists of the Supreme Court of the United States have shown that that Court does not stray very far or for very long from the national consensus and have suggested that the stability of the institution depends on this dynamic.[47] For some, the democratic acceptability of judicial review depends upon this feature of the relationship between courts and the people.[48] For this reason, it may be unrealistic for a court charged with constitutional interpretation to ignore a strong local or domestic consensus on a constitutional question in favour of those identified in foreign law.

In short then, the constitutional localist’s worry about constitutional comparativism is that judges will accept foreign law over domestic precedent, which may be better adapted to local conditions, reflective of the opinions and preferences of the local population and perhaps expressive national identity.

D Why preference for local solutions is no answer to calls for constitutional comparativism

Despite my sympathy for some aspects of constitutional localism, it does not support the strong objection to comparativism seen in the judgments of Scalia J and Heydon J.

First, even if we concede considerable force to the localist objection in the United States, which has a long tradition of political and cultural exceptionalism,[4] this objection has much less force once we move beyond the United States. Its premise — that constitutions define and are defined by the local conditions of the society they govern — is simply not shared by all constitutional systems.

Some constitutions are explicitly designed to signal the membership of a state in some broader community of states and a commitment to shared values. Thus, the argument is entirely inapposite in respect of constitutions that are explicitly designed to indicate adherence to widely shared values in the international community. Perhaps the most obvious instance is the Constitution of the Republic of South Africa. It was designed to signal a shift from apartheid to a rights-respecting democracy and thus explicitly allows the use of foreign law in constitutional interpretation.[50] In a different way, the Human Rights Act 1998 (UK), which incorporates much of the European Convention on Human Rights,[51] is designed to ensure adherence to a wider set of values as is the New Zealand Bill of Rights Act 1990 (NZ), which explicitly affirms[52] New Zealand’s commitment to the ICCPR.[53]

Of course the Australian Constitution is not of this kind. Nonetheless it does exhibit other kinds of connections to foreign constitutions. It has connections of a historical — or perhaps genealogical[54] — kind with the constitutional system of the United Kingdom and with the other systems derived from it. It has another set of connections as well — those that arise from the deliberate modelling of Australian federalism on the United States and of the Australian referendum procedure on that in the Swiss Constitution. Even a committed constitutional particularist might allow that a court interpreting these elements could engage in comparison with the jurisdiction from which these elements were adopted.

More importantly, the localist objection to constitutional comparativism is a response to a certain kind of constitutional comparativism. It is useful here to remind ourselves of the context in which the recent American debate about constitutional comparativism takes place.

The cases currently at the centre of the American debate are cases in which the Supreme Court is applying a test — the ‘evolving standards of decency’ test — that requires it to identify widely held moral standards. Foreign law is referred to as evidence of widely held moral standards. One complaint about this practice is that there is scant attention paid to the reasons that might be put forward in favour (or against) the law found in foreign jurisdictions. The comparative task is almost reduced to a ‘nose counting’, with foreign legal standards adopted because they are widely held rather than because of an independent assessment of their correctness. As one American scholar has put it: ‘[the Court] has not “learned” anything from looking abroad ... [i]t is deferring to numbers, not reasons.’[55]

In addition, in this context, comparative law is used to displace established, locally derived principles on the death penalty. Thus, the objection to these particular most recent cases is partly that foreign law is used in a rather reflexive and unthinking way to override a locally derived solution. The recent debate in the United States is shaped by this context. The question is: when faced with a constitutional test that requires the Court to identify widely shared moral values, why should we adopt the values evident in the laws of other countries over our moral standards? The advocates of comparativism have devoted their time to explaining why foreign law might be a good guide to such moral standards.[56]

Comparative practice might differ from this ‘paradigm’ in two ways. First, foreign law might be deferred to, not as a source of moral values, but for guidance as to how a certain kind of constitutional rule — adopted for independent reasons — might work in practice. For instance, in Airlines of New South Wales Pty Ltd v New South Wales [No 2],[57] when construing the ‘trade and commerce power’ in the Australian Constitution,[58] Kitto J of the Australian High Court rejected an aspect of the United States Supreme Court’s jurisprudence on the ‘commerce clause’ of the United States Constitution.[59] This was notwithstanding the close textual similarities between the provisions in the two constitutions, in particular their reference to trade and commerce ‘among the States’ or ‘among the Several States’, respectively, which were traceable to the deliberate modelling of the Australian trade and commerce power on the United States commerce clause. His Honour declined to adopt the United States approach, that the power to regulate interstate trade allows federal regulation of intrastate trade which might have economic effects on interstate trade. The uncertainty created by the doctrine and the fear that it might lead in Australia to the expansion of federal power seen in the United States was something Kitto J specifically wished to avoid.[60]

In these cases, the localist objection is at least blunted. Comparativism assists in the implementation of constitutional values that are locally derived. Comparativism is a form of empirical research into the likely effects of a given doctrine.[61]

Secondly, objections to constitutional comparativism are weakened where comparative practice is more critical. Consider a case in which foreign law is seen not as a factum to be counted in establishing an international consensus but as a source of reasons or ideas about a constitutional problem, which are then subject to independent assessment. Where the question for decision is genuinely unsettled, to the extent foreign law has an influence it is used in fashioning a new constitutional doctrine rather than in adopting a foreign one in place of a locally derived one.

Where comparativism is critical and reflective rather than convergent, and the question for decision is undecided thus removing the element of ‘displacement’, the localist’s concern is much mitigated. Foreign law is not being used to override an established, locally derived position. Moreover, the comparativism is critical and reflective, giving the judge the opportunity to adapt or reject the foreign law as appropriate to local circumstances.

Indeed, the kind of comparativism just described might even assist in the fashioning of a distinctive constitutional tradition. For instance, comparativism can be entirely negative. A foreign approach might be cited as an instance of an unsuitable approach or even a pitfall to be avoided. When the United States Supreme Court’s notorious decision in Lochner v New York[62] is cited in a foreign court it is usually in this vein.[63]

Gleeson CJ’s use of Canadian authority in Roach,[64] which inspired Heydon J’s most recent expression of anti-comparativism, does not exhibit quite this level of critical reflection. However, nor is it entirely uncritical and convergent. The constitutional test posed by Gleeson CJ was whether there is a ‘substantial reason’ for the exclusion from the franchise. The standard seems itself to direct the judge independently to evaluate the rationale for exclusion from the franchise. It is quite different from a standard like ‘evolving standards of decency’, which directs the United States Supreme Court to give weight to a consensus reached in other jurisdiction.[65] Thus, Gleeson CJ appeared to refer to Canadian law for some insight as to what constitutes an acceptable exclusion from the franchise. However, Canadian law is implicitly evaluated. There is something learned through the comparative exercise in this case. The use of comparative materials in this case is thus not subject to the complaint levelled at Roper v Simmons that foreign law is accepted as a kind of fact without independent evaluation.

To conclude my remarks on this point, let me note an irony in the use of localism to support anti-comparativism in Australia. Anti-comparativism is forcefully articulated by scholars of the United States Constitution, and has a colourful and influential advocate in Scalia J. In their localist guise, anti-comparativists counsel attention to context and to the possibility that the constitutional context of one nation may be different to that of another. Yet attention to the recent United States’ debate about comparativism suggests that anti-comparativism there is itself driven by the particular context of recent cases in the United States Supreme Court — the elucidation of the ‘evolving standards of decency’ test by a kind of survey of foreign law. It would be a great irony if judges in other countries were unthinkingly to import that anti-comparativism to another context, without attention to its applicability to local practices.

Comparative Method in Constitutional Cases

I hope, then, to have convinced you at least that there is no in principle bar to the use of comparative law in constitutional cases. The next task is to develop a better account of the method of constitutional comparativism. This task is an especially urgent one. Comparativism is a widely accepted practice, yet it has not been well examined and it poses considerable practical difficulties for counsel and judges.

Addressing these questions is also part of dealing with objections to comparativism itself. Sceptics of the practice complain that it is ad hoc and disorganised, and determined by random or at least unprincipled matters such as the language skills, legal training, and the cultural preferences of judges. At worst, the suggestion is that its selectiveness is a deliberate strategy.[66]

The task is also daunting and its proper treatment requires a book-length project.[67] In this lecture I will advance only a few fundamental principles and identify some questions that require further attention.

A Comparative practice: Basic principles

There are some principles that follow in a fairly straightforward fashion from the discussion we have had so far.

The first set of principles direct a court’s attention to its own domestic constitution. A court should satisfy itself that, having regard to the strength of other interpretive resources, the question is an open one on which it is appropriate to seek comparative guidance. Where the text is clear or the historical meaning settled, comparativism may be rightly precluded.

It is also relevant to consider whether the question presented arises within a distinctive tradition, thus giving rise to a case for constitutional localism, or whether the case presents a question on which it is reasonable to expect a connection with the constitutional law of another legal system. For instance, the case for localism (and thus resistance to comparativism) might be quite strong in relation to a provision of the Australian Constitution like s 109,[68] which is distinctively Australian and in relation to which there are 100 years or so of cases. The case for comparativism might be stronger with respect to a doctrine like the implied freedom of political communication, which is a modern development and explicitly non-originalist in its origin.[69]

A second set of principles direct the court’s attention to the foreign jurisdiction with which the comparison is sought and to the nature of the comparative materials. As I have indicated already, current comparative practice is insufficiently attentive to the different forms that the comparative materials take. I have suggested, for instance, that we should think differently about foreign domestic law as compared with international law.[70] It will probably also be necessary to draw distinctions between the various sources of domestic law. Comparative practices should vary according to whether comparative material is case law or legislation. (In my view, for example, case law is likely to provide a particularly rich source of comparative insight because of the provision of reasons. However, I would not want to exclude entirely references to, say, legislation.) No doubt similar distinctions will need to be drawn with respect to the various kinds of international law.

Finally, there is a question of whether a comparator jurisdiction is relevantly similar to justify the comparison. Constitutional systems that are superficially similar may, on closer inspection, reveal significant differences. For instance, there will be occasions on which, despite apparent similarities, the central values of a foreign legal system, or aspect of foreign law, might make it an inappropriate source for comparison. Thus a legal system without a commitment to the rule of law might be an inappropriate source of insight for a modern liberal democracy.[71] This point follows fairly directly from the arguments about ‘localism’ already considered. Where a constitution’s values are distinctive, comparativism might be entirely inappropriate. Where, however, its values are shared, comparativism may well be appropriate, but it should at least be restricted to constitutions that might fairly be said to embody comparable values.

There is, however, another form of the argument that raises a new point. A legal system that is superficially similar — perhaps sharing a commitment to similar values or even sharing some aspects of its history — might, on a closer look, contain differences in structure or legal context that preclude comparativism, or at least require a critical eye to be cast on comparative material. The latter point might be labelled ‘legal localism’. Whereas the localist claim as considered so far relies on the distinctiveness of the values to which a constitution is committed, legal localism claims that the distinctiveness of legal context limits opportunities for comparativism.

The High Court of Australia’s adoption in Theophanous v Herald & Weekly Times Ltd[72] of a modified version of the well-known right to freedom of speech in the US case New York Times Co v Sullivan[73] demonstrates the point. As I have argued elsewhere,[74] in that case, the High Court of Australia overlooked differences in the jurisdictions of the two highest courts in the respective legal systems. The United States Supreme Court, for the most part, decides matters of federal law and has no power to make common law decisions, whereas the Australian High Court is a general court of appeal with full powers to apply or develop common law rules, including the laws of defamation at issue in the case. In overlooking this difference, I argued, the High Court failed to take advantage of its distinctive power to resolve the disputed questions through common law development, rather than constitutional implication.

2. The judgments in Roach revisited
   

In the light of these basic principles, I turn now to consider the judgments from Roach[75] that I have so far neglected — the joint majority reasons of Gummow, Kirby and Crennan JJ (“the joint judgment”) and the dissent of Hayne J.

To recall, although neither judgment preclude constitutional comparativism altogether, both judgments cast some doubt over the relevance of the cases from the Supreme Court of Canada and the European Court of Human Rights relied on by Gleeson CJ. The point was made in the joint judgment as follows:

The question ... that is presented by the constitutional jurisprudence of this Court differs from that which would arise at Ottawa or Strasbourg. It is whether the 2004 Act is appropriate and adapted to serve an end consistent or compatible with the maintenance of the prescribed system of representative government. The end is the placing of a civil disability upon those serving a sentence of three years or longer for an offence, the disability to continue whilst that sentence is being served.[76]

Hayne J made the point slightly differently:

Any appeal to the decisions of other courts about the operation of other constitutional instruments or general statements of rights and freedoms is an appeal that calls for the closest consideration of whether there are any relevant similarities between the instruments that were examined and applied in those decisions and the particular provisions that this Court must consider. ... The only connection between the cases and other international materials upon which the plaintiff relied and the present issues is to be found in the statement of the problem as an issue about the validity of legislative provisions excluding prisoners from voting. That the problem may be stated in generally similar terms does not mean that differences between the governing instruments may be ignored.[77]

Both judgments thus claim that the Australian context is distinctive. However, the grounds each advance for such a distinction are somewhat troubling. I will deal with each of these judgments, beginning with the dissent of Justice Hayne.

(a) The distinctiveness of text and doctrinal form?

In referring to the ‘instruments’ compared, it might appear that Hayne J drew the distinction based on the differences in text between the Canadian Constitution and European Convention on Human Rights, on the one hand, on Australian Constitution, on the other. The Canadian and European cases both arise in a context where a court is interpreting an expressly stated ‘right’,[78] whereas the Australian Constitution contains no general right to vote or to free elections. Voting ‘rights’ arise only indirectly as an incident of the requirement that members of Parliament be ‘directly chosen by the people’.[79]

I do not think his Honour means to rely on this distinction. To require textual similarity would preclude comparativism in all but the very few cases where constitutions share similar text. Moreover, it would be inconsistent with other of his Honour’s judgments that draw comparisons with constitutional doctrines developed under the free speech clause of First Amendment to the United States Constitution, which has no textual counterpart in Australia.[80] Hayne J’s comment must rely on a more substantive distinction.

The point of distinction identified in the joint judgment is also somewhat puzzling, at least if it is taken a face value. The form of the test adopted in the joint judgment — ‘whether the 2004 Act [excluding prisoners serving sentences of three years or longer] is appropriate and adapted to serve an end consistent or compatible with the maintenance of prescribed system of representative government’ (emphasis added) — is drawn from earlier decisions of the Court[81] and is certainly different from that considered by the Supreme Court of Canada and European Court of Human Rights. As is well known, rights protected by the Canadian Charter of Rights and Freedoms are, pursuant to s 1, subject to limitations ‘such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’. That section has been interpreted as imposing a three-stage proportionality test, which in turn was influenced by the development of a similar test by the European Court of Human Rights.[82] Thus the ‘questions presented’ to those courts resemble each other. The Australian court instead asks whether the limitation is ‘appropriate and adapted to serve an end consistent or compatible with the maintenance of the prescribed system of representative government’.

But as with textual form, I do not think that the question of doctrinal form can provide a complete answer to the comparative question. Just as the same or similar substantive questions can arise from different texts so the same or similar substantive questions can arise from differently expressed doctrines. As I have elaborated elsewhere, the concept of a limitation ‘appropriate and adapted to serve an end compatible with the maintenance of the prescribed system of representative government’ contains few inherent limits.[83]

The concept of ‘appropriate and adapted’ can be deployed as a test of the appropriateness of the ‘means’ employed and the legitimacy of the ends pursued in much the same way as proportionality.[84] Similarly, the concept of the ‘prescribed system of representative government’ has little inherent content to be derived from the text of the Australian Constitution.[85] The Australian Constitution contains only scant provision with respect to representative government, principally a requirement that the members of Parliament be ‘directly chosen by the people’. The implications of that requirement for the rights of prisoners to vote are not immediately obvious. Thus, if we consider just the ‘question presented’ and the text of the Australian Constitution, the question is very much an open one. It simply is not clear just which laws, or more specifically, which limitations on voting rights are permissible.

(b) Originalism and localism

I have suggested, then, that these judgments do not, on their face at least, provide convincing reasons to preclude reference to comparative materials in Roach. Both appear to rely on matters of form that provide no reasons to preclude comparative materials. Read in context, however, other more substantive reasons emerge from the judgments.

The best reading of Hayne J’s judgment, I suggest, is as an originalist judgment. According to his Honour, the meaning of the Australian Constitution’s requirement that the members of Parliament be ‘directly chosen by the people’ is determined by constitutional history.[86] At the time of federation, all states excluded some prisoners from voting and, critically, New South Wales excluded ‘every person who ... is in prison under any conviction’.[87] Yet s 30 of the Australian Constitution nonetheless allowed state law to determine eligibility to vote until the Parliament provided others. For Hayne J this is conclusive evidence that the original meaning of ‘directly chosen by the people’ did not preclude a blanket exclusion from the franchise.[88]

For Hayne J, then, Roach did not pose an open or undecided question of constitutional law in which comparative insight might assist. It posed a question conclusively determined by constitutional history.

Originalism cannot, however, explain why the judges party to the joint judgment resisted comparativism. The joint judgment was quite specific that while history provides a guide to the meaning of the Australian Constitution, it does not control the meaning of its text.[89] But while the judgement is explicitly non-originalist, it is notably attentive to history. After a long review of the history of the franchise (and, relatedly, of qualification and disqualification for candidacy for elected office) in the Australian colonies, the joint judgment concluded that, as a matter of practice, the Australian colonies had a rather more inclusive approach both to the franchise and eligibility for office than existed at the time in the United Kingdom, and that disqualification from the franchise and from eligibility for office turned on conviction for treason or a felony.[90] Underscoring this practice was ‘an understanding of what was required for participation in ... public affairs’ and the provisions for disqualification were underscored by a judgement as to ‘fitness and probity of character’.[91] This understanding was continued in the provisions governing eligibility for election as a member of the Parliament. The joint judgment’s conclusion that the blanket exclusion from the franchise was invalid was thus reached in light of history.[92]

What explains this approach, which apparently eschews both originalism and comparativism? The judgment is not explicit on the point but the best reading of the joint judgment, I suggest, is that the judges precluded comparative material on localist grounds. Though the judges do not wish to be bound by historical understandings at the time of the framing, they do appear to be interested in determining an Australian political tradition with respect to the franchise that, significantly, is thought to be distinctive to the Australian colonies. The implicit claim may be that this tradition, these distinctively Australian values, should determine the scope of the Australian Constitution’s requirements with respect to the franchise.

Conclusion

My principal purpose in this lecture was to reply to any suggestion that constitutional comparativism — in Australia or any like system — is always an impermissible interpretive method. My criticisms have principally been directed to the judgment of Heydon J in Roach,[93] which, with respect, appears committed to an unconvincing, in principle objection to comparative material.

I have also sought to place the other judgments in Roach in the context of debate about comparativism. These judgments exemplify points along a spectrum of plausible positions: Gleeson CJ’s straightforward acceptance of comparative materials on a question he regarded as undecided; Hayne J’s preference in this context for the original understanding of the Australian Constitution; and the joint judgment’s implicit preference for locally derived political values. These positions in turn depend on prior commitments as to interpretive method and the nature of the Australian political and constitutional tradition. Thus, in Australia, the debate about comparativism is an aspect of the debate about how to interpret the Australian Constitution and the nature of the values it is entrenches. It is a debate that cannot be resolved without proper attention to these questions.

In clarifying these matters, I hope to have cleared the way for a complex and urgent task: developing methods for a principled and yet achievable constitutional comparativism. On this question, I have made only slight progress in this lecture. Many problems remain. Principled comparativism will require a deep understanding of the legal structures, as well as the political and constitutional traditions, of the comparator jurisdiction. The problem is compounded by the need to achieve at least a reasonable breadth of comparison. Further, I have not even touched upon the problems that comparativism creates for the time and resources of courts and advocates, and the potential costs and attendant unfairness for litigants. The task for courts is daunting but it represents a great opportunity for scholars. There is no scholarly task more urgent or more likely to be fruitful than the research that will guide courts towards a principled, informed comparativism.

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[*] Professor, Director of the Centre for Comparative Constitutional Studies, Melbourne Law School. This article formed the basis of the second of the Heritage Lectures, delivered on 23 July 2008 as part of the celebrations of 125 years of teaching at the Auckland University Law School.
[1] (2007) 233 CLR 162.
[2] Commonwealth Electoral Act 1918 (Cth), s 93(8).
[3] Commonwealth Electoral Act 1918 (Cth), s 93(8AA). This provision applied only to ‘detention on a full-time basis for an offence against a law of the Commonwealth or a State or Territory’: s 4(1A).
[4] Australian Constitution, ss 7 and 24.
[5] See the report of argument in Roach at (2007) 233 CLR 162 at 166, citing, among other cases, Sauvé v Canada (Attorney-General) [1993] 2 SCR 438; Sauvé v Canada (Chief Electoral Officer) [2002] 3 SCR 519; Hirst v United Kingdom [No 2] [2005] ECHR 681; (2005) 42 EHRR 41.
[6] For extra-curial comments from members of the Supreme Court of the United States, see, eg, O’Connor, ‘Keynote Address’ (2002) 96 Am Soc of Int L Proc 348; Breyer, ‘Keynote Address’ (2003) 97 Am Soc of Int L Proc 265; Scalia, ‘Keynote Address: Foreign Legal Authority in the Federal Courts’ (2004) 98 Am Soc of Int L Proc 305; Dorsen, ‘The Relevance of Foreign Legal Materials in US Constitutional Cases: A Conversation Between Justice Antonin Scalia and Justice Stephen Breyer’ (2005) 3 Int J Const L 519; Ginsburg ‘“A Decent Respect to the Opinions of [Human]kind”: The Value of a Comparative Perspective in Constitutional Adjudication’ (2005) 64 Camb L J 575. For academic comment, see, eg, Choudhry, ‘Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation’ (1999) 74 Indiana L J 819; Jackson, ‘Narratives of Federalism: Of Continuities and Comparative Constitutional Experience’ (2001) 51 Duke LJ 223; Waldron, ‘Foreign Law and the Modern Ius Gentium’ (2005) 119 Harv L Rev 119; Saunders, ‘The George P Smith Lecture in International Law: The Use and Misuse of Comparative Constitutional Law’ (2006) 13 Indiana J of Glob L Stud 37; Choudhry (ed), The Migration of Constitutional Ideas (2006); Dixon, ‘A Democratic Theory of Constitutional Comparison’ (2008) 56 Am J of Comp L 947; Jackson, Constitutional Engagement in a Transnational Era (2009) (forthcoming).
[7] These Amendments are applied to States by the Fourteenth Amendment to the United States Constitution.
[8] [2003] USSC 4776; 539 US 558 (2003).
[9] [1986] USSC 194; 478 US 186 (1986).
[10] See Lawrence v Texas [2003] USSC 4776; 539 US 558 at 572–573 per Kennedy J (2003), citing the Sexual Offences Act 1967 (UK).
[11] [2002] USSC 3164; 536 US 304 (2002).
[12] [2005] USSC 2017; 543 US 551 (2005).
[13] That decision overturned Stanford v Kentucky [1989] USSC 160; 492 US 361 (1989), decided in just 1989, in which the Court upheld the constitutionality of the execution of minors aged 16 years and above at the time of the offence.
[14] Trop v Dulles [1958] USSC 57; 356 US 86 at 100–101 per Warren CJ (1958).
[15] Roper v Simmons [2005] USSC 2017; 543 US 551 at 575–578 per Kennedy J (2005).
[16] [2003] USSC 4776; 539 US 558 at 598, quoting Foster v Florida 537 US 990 at 990 fn per Thomas J (2002).
[17] [2005] USSC 2017; 543 US 551 at 607 (2005), quoting The Federalist No 78, p 465.
[18] [2005] USSC 2017; 543 US 551 at 608 (2005) (emphasis added).
[19] Wu, ‘Foreign Exchange: Should the Supreme Court Care What Other Countries Think?’, Slate, 9 April 2004, http://www.slate.com/id/2098559/.
[20] See generally Toobin, ‘Swing Shift: How Anthony Kennedy’s Passion for Foreign Law Could Change the Supreme Court’, New Yorker, 12 September 2005, p 42. See also Law, ‘Generic Constitutional Law’ (2005) 89 Minn L Rev 652, 656–657 for resolutions and legislation of the US Congress attempting to prohibit reference to foreign law.
[21] Scalia, ‘Originalism: The Lesser Evil’ (1989) 57 U Cin L Rev 849; Scalia, A Matter of Interpretation: Federal Courts and the Law (1997).
[22] Roper v Simmons [2005] USSC 2017; 543 US 551 at 607–608 (2005).
[23] (2007) 233 CLR 162.
[24] Electoral and Referendum (Electoral Integrity and Other Measures) Act 2006 (Cth).
[25] As applicable following the Electoral and Referendum Amendment (Prisoner Voting and Other
Measures) Act 2004 (Cth).
[26] As will be no surprise to those who follow the judgments and extra-curial writings of Kirby J: see, eg, Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at 617–630 [152]–[192]; Wurridjal v onwealth (2009) 83 ALJR 399 at 452–456 [258]–[273]; Kirby, ‘Domestic Implementation of International Human Rights Norms’ (1999) 5 Aust J of Hum R 109; Kirby, ‘Law, Like the Olympics, Is Now international — But Will Australian Win Gold?’ (2000) 7 James Cook U L Rev 4; Kirby, ‘Domestic Courts and International Human Rights Law – The Ongoing Judicial Conversation’ (The Hondius Lecture 2008, Universiteit Utrecht, 26 October 2008).
[27] Roach (2007) 233 CLR 162 at 202–203 [100] per Gummow, Kirby and Crennan JJ), 220–221 [163]–[166] per Hayne J.
[28] [2002] 3 SCR 519.
[29] [2005] ECHR 681; (2006) 42 EHRR 41.
[30] Sections 7 and 24.
[31] Roach (2007) 233 CLR 162 at 174 [7].
[32] Ibid at 177 [14], citing Sauvé v Canada (Chief Electoral Officer) [2002] 3 SCR 519 at 583–585 [116]–[119] per Gonthier J.
[33] Roach (2007) 233 CLR 162 at 225 [181].
[34] [2006] HCA 44; (2006) 228 CLR 45. More precisely, the question was whether Ch III of the Australian Constitution prohibited the appointment of acting judges to state courts which, pursuant to s 77(iii) of the Constitution, are invested with federal jurisdiction.
[35]Forge [2006] HCA 44; (2006) 228 CLR 45 at 139 [250].
[36] See Goldsworthy, ‘Originalism in Constitutional Interpretation’ (1997) 25 Fed Law Rev 1. See also Roach (2007) 233 CLR 162 at 225 [181] per Heydon J (citations omitted): ‘The proposition that the legislative power of the Commonwealth is affected or limited by developments in international law since 1900 is denied by most, though not all, of the relevant authorities — that is, denied by twenty-one of the Justices of this Court who have considered the matter, and affirmed by only one.’
[37] See, eg, Betfair Pty Ltd v Western Australia [2008] HCA 11; (2008) 234 CLR 418 at 459–464 [33]–[48] per Gleeson CJ, Gummow, Kirby, Hayne, Crennan and Kiefel JJ. Heydon J appears to endorse this proposition, objecting to comparative materials in Roach (2007) 233 CLR 162 and Forge [2006] HCA 44; (2006) 228 CLR 45 on the ground that they post-date the framing of the Australian Constitution and thus could not have influenced the framers.
[38] See, eg, Roach (2007) 233 CLR 162 at 173–174 [5]–[6] per Gleeson CJ, 189–197 [55]–[75] per Gummow, Kirby and Crennan JJ, 206 [111], 208–215 [121]–[142] per Hayne J, 223 [177], 226 [183] per Heydon J.
[39] Consider, for example, the originalist analysis of s 92 of the Australian Constitution undertaken in Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360, which yielded the test for invalidity of ‘discriminatory burdens of a protectionist kind’: see at 394 per Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ.
[40] See Goldsworthy, above note 38, at 19–21.
[41] Ibid 31–32.
[42] [1989] USSC 160; 492 US 361 (1989).
[43] [2005] USSC 2017; 543 US 551 (2005).
[44] Stanford v Kentucky [1989] USSC 160; 492 US 361 at 361 fn 1 (1989) (original emphasis). Scalia J has been accused of a ‘militant provincialism’: Levinson, ‘Looking Abroad When Interpreting the US Constitution: Some Reflections’ (2004) 39 Tex Int L J 353 at 358.
[45] See generally Waldron, Law and Disagreement (1999) chh 10–13.
[46] Consider the role that the United States Constitution, and perhaps especially the free speech clause of First Amendment, play in the articulation of American political culture and even national identity: see, eg, Palko v Connecticut [1937] USSC 174; 302 US 319 at 327 per Cardozo J (1937) (freedom of thought and speech described as ‘the matrix, the indispensible condition of nearly every other form of freedom’); New York Times Co v Sullivan [1964] USSC 40; 376 US 254 at 270 per Brennan J (1964) (‘we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open’); Bolinger, The Tolerant Society (1986) (strong constitution protection for free speech instils tolerance in citizens); Blasi, ‘Free Speech and Good Character’ (1999) 46 UCLA L Rev 1567 at 1571 (instils ‘inquisitiveness, independence of judgment, distrust of authority, willingness to take the initiative, perseverance, and the courage to confront evil’).
[47] For a classic exposition of this thesis, see McCloskey, The American Supreme Court, (4th ed, revised by Sanford Levinson, 2005).
[48] For objections to constitutional comparativism in democratic terms see Waldron above n 6, 131-32 (analysing the opinion of Scalia J in Sosa v Alvarez-Machain, [2004] USSC 2852; 542 US 692 (200)(USSC)); Ernest A Young
‘Foreign Law the Denominator Problem’ (2005) Harv. Law. Rev. 1[4]8.
49 Calabresi, ‘“A Shining City on a Hill”: American Exceptionalism and the Supreme Court’s Practice of Relying on Foreign Law’ (2006) 86 Bost U L Rev 1335 at 1373: ‘Like it or not, Americans really are a special people with a special ideology that sets us apart from all the other peoples of the Old and New Worlds.’
[50] This dynamic may be most common in post-authoritarian constitutions but it is evident as well in the New Zealand Bill of Rights Act 1990 (NZ), which the recitals state is explicitly designed ‘[t]o affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights’. In these cases, it is actually faithful to the constitution to engage in a comparative exercise with those other constitutions that exhibit a similar commitment.
[51] Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953).
[52] See New Zealand Bill of Rights Act 1990 (NZ), recital (b).
[53] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[54] See Sujit Choudhry, ‘Globalization in Search of Justification’ 74 Indiana Law Journal 820, 838 (1999).
[55] Ernest A Young, ‘Foreign Law and the Denominator Problem’ [2005] HarvLawRw 16; (2005) 119 Harv L Rev 148 at 155.
[56] See, eg, Waldron, above note 6 (a moral theory based on ius cogens); Sunstein, A Constitution of Many Minds: Why the Founding Document Doesn’t Mean What It Meant Before (2009) ch 8 (justifying recourse to foreign law on the basis that better decisions result when many points of view are considered); Dixon, above note 6 (arguing that reference to foreign law assists in construing a constitution in accordance with evolving democratic views, the evolution of which might otherwise be masked by local ‘burdens of inertia’).
[57] [1965] HCA 3; (1965) 113 CLR 54.
[58] Section 51(i).
[59] Art 1, s 8, cl 3.
[60] Airlines of New South Wales Pty Ltd v New South Wales [No 2] [1965] HCA 3; (1964) 113 CLR 54 at 113–115 per Kitto J. See also at 77–78 per Barwick CJ, 127–128 per Taylor J, 150–151 per Windeyer J.
[61] For another instance of this form of comparativism, see the judgment of Deane J in Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 185–186. His Honour adopted a form of the well-known defence to defamation articulated in New York Times Co v Sullivan [1964] USSC 40; 376 US 254 (1964). However, his Honour (alone among the majority) refused to qualify that defence by reference to a standard of reasonableness (adopted by other members of the majority) or even by the ‘actual malice’ standard adopted in New York Times Co v Sullivan itself. His insistence upon an unqualified rule precluding defamation actions by public officials can be seen as a response to the unexpected ‘chilling effect’ of the New York Times Co v Sullivan rule: see Lewis, ‘New York Times v Sullivan Reconsidered: Time to Return to “The Central Meaning of the First Amendment”’ (1983) 83 Col L Rev 603. For a discussion of Theophanous v Herald & Weekly Times Ltd, see Stone, ‘Freedom of Political Communication, the Constitution and the Common Law’ (1998) 26 Fed L Rev 219 at 224ff.
[62] [1905] USSC 100; 198 US 45 (1905).
[63] Fontana, ‘Refined Comparativism in Constitutional Law’ (2001) 49 UCLA L Rev 539 (discussing “negative comparativism”); Scheppele, ‘Aspirational and Aversive Constitutionalism: The Case for Studying Cross-Constitutional Influence through Negative Models’ (2003) 1 Int J of Con L 296.
[64] (2007) 233 CLR 162.
[65] Justice Scalia’s interpretation that ‘it is American conceptions of decency that are dispositive’ does not command a majority of the court.
[66] See, eg, Lawrence v Texas [2003] USSC 4776; 539 US 558 at 598 per Scalia J (2003). See also Alford, ‘Misusing International Sources to Interpret the Constitution’ (2004) Am J Int L 57 at 67–69; Allan and Huscroft, ‘Constitutional Rights Coming Home to Roost? Rights Internationalism in American Courts’ (2006) 43 San D L Rev 1 at 10–12.
[67] For a thorough and thoughtful treatment of the question of comparative method see, Jackson, Constitutional Engagement in a Transnational Era (2009) ch 6 (forthcoming).
[68] ‘When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.’
[69] Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106 at 135–136 per Mason CJ.
[70] Above at p 2.
[71] In Knight v Florida 528 US 990 (1999), a case concerning whether the ‘cruel and unusual punishments’ provision prohibited the execution of prisoners on death row for nearly 20 years or more, Breyer J referred (at 996) to a decision of the Supreme Court of Zimbabwe. He later admitted that this was a ‘tactical error’: Dorsen, above note 6, at 528.
[72] [1994] HCA 46; (1994) 182 CLR 104.
[73] [1964] USSC 40; 376 US 254 (1964).
[74] Stone, above note 63.
[75] (2007) 233 CLR 162.
[76] Ibid 204 [101].
[77] Ibid 221 [165]–[166].
[78] See Canadian Charter of Rights and Freedoms, s 3 (‘Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein’); Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 20 March 1952, 213 UNTS 262, art 3 (entered into force 18 May 1954) (‘The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature’).
[79] Sections 7 and 24.
[80] In Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 at 75–76 [186]–[188], in a joint judgment with Gummow J, his Honour referred to Chaplinsky v New Hampshire [1942] USSC 50; 315 US 568 (1942) (a case decided pursuant to the free speech clause in the First Amendment to the United States Constitution) in the course of determining a case on the Australian freedom of political communication. Both concern, in general terms, rights of freedom of expression but they arise in entirely distinct textual contexts.
[81] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.
[82] Kirk, ‘Constitutional Guarantees, Characterisation and the Concept of Proportionality’ [1997] MelbULawRw 1; (1997) 21 Melb U L Rev 1 at 3–4.
[83] Stone, ‘The Limits of Constitutional Text and Structure Revisited’ (2005) 28 Univ NSW L. J. 842.
[84] Stone, above note 85, at [*].
[85] Ibid.
[86] Roach (2007) 233 CLR 162 at 206 [111]: (‘History provides the only certain guide’)
[87] Ibid 214 [138].
[88] Ibid 212 [133].
[89] Ibid 188–189 [53].
[90] Ibid 192 [62].
[91] Ibid.
[92] Ibid 200–202 [90]–[95].
[93] (2007) 233 CLR 162.