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Goldsworthy, J --- "Justice Windeyer on the Engineers' Case" [2009] UMonashLRS 13

Last Updated: 20 April 2011

JUSTICE WINDEYER ON THE ENGINEERS' CASE

Jeffrey Goldsworthy[*]

1 WINDEYER J'S DICTUM

In their majority judgment in the Work Choices Case, five Justices of the High Court endorsed a well known obiter dictum of Windeyer J in Victoria v Commonwealth ('the Payroll Tax Case').[1] The dictum concerns the Engineers' Case, which famously repudiated the doctrines of implied intergovernmental immunities and reserved state powers, previously held by the Griffith Court to be entailed by the federal principle implicit in the basic structure of the Constitution.[2] The Court in Engineers declared that both doctrines, and the reasoning on which they were based, were erroneous. But Windeyer J disagreed with this. He said that he had never regarded the decision in Engineers 'as the correction of antecedent errors or as the uprooting of heresy': it 'does not to my mind mean that the original judges of the High Court were wrong in their understanding of what at the time of federation was believed to be the effect of the Constitution and in reading it accordingly.' Rather, the decision 'was a consequence of developments that had occurred outside the law courts': 'in 1920 the Constitution was read in a new light, a light reflected from events that had, over twenty years, led to a growing realisation that Australians were now one people and Australia one country and that national laws might meet national needs'. 'In any country where the spirit of the common law holds sway the enunciation by courts of constitutional principles based on the interpretation of a written Constitution may vary and develop in response to changing circumstances.' He implied that the relevant circumstances had not changed since Engineers: 'To return today to the discarded theories would indeed be an error and the adoption of a heresy.'[3]

This was not the reason given for its decision by the majority in Engineers, which argued at length that the repudiated doctrines had always been legally erroneous. It is not clear whether Windeyer J thought that some or all of the majority chose to conceal the real reasons for their decision, or were ignorant of them because they operated at a subconscious level. In another well known assessment of the decision, which no doubt influenced Windeyer J, Richard Latham seems to have taken the former view, when he said that 'its real ground is nowhere stated in the majority judgment', which — had it been stated — would have been 'frankly a quasi-political decision'.[4] This real ground was supposedly the majority's opinion that the Constitution had been designed to create a nation; that during the First World War that objective had been significantly advanced; that a merely contractual view of the Constitution had become out of date; and that 'the times demanded' a new federal relationship.[5]

Suspicions about underlying motivations are difficult to prove. Professor Goldring has expressed the opposite opinion, that the Griffith Court had paid 'lip-service' to legal principle, and was dominated by 'their political, rather than their legal socialisation', whereas 'Higgins and Isaacs never ceased to look at the Constitution from the perspective of a lawyer.'[6] Windeyer J's suggestion that Isaacs and Higgins JJ were heavily influenced by 'developments that had occurred outside the law courts', especially the rise of nationalism during the War, overlooks their consistent opposition to the Griffith Court doctrines in a series of dissenting judgments starting in 1907.[7] Moreover, as Professor Sawer concluded in his detailed study of the interactions of law and politics in the early years of the Commonwealth, at the time Engineers was decided, the majority political view was opposed to the expansion of national powers: 'Hence in the post-war period, there was a curious dissociation between politics and constitutional law'.[8]

It is possible that, all along, Isaacs and Higgins JJ were primarily motivated by their personal political views — Isaacs by his centralising nationalism, and Higgins by his social radicalism, favouring an expanded Commonwealth industrial power — which anticipated subsequent developments outside the law courts. This may have been Professor Sawer's view, although he thought it likely that it was the logic of their arguments that won over the other members of the majority in Engineers.[9] Knox CJ, Rich and Starke JJ had been distinguished barristers and, unlike the other early Justices, had no involvement in framing the Constitution or other political experience. They presumably approached the issues as lawyers interpreting the constitutional text without preconceptions, based on personal experience and conviction, concerning the nature of the federation it was intended to establish.[10] Brian Galligan agreed with Sawer:

For Isaacs and Higgins the more literal methods of construction established by Engineers served as a carefully chosen means to a preferred political end. For the majority of judges, however, the method may well have been chosen for its own sake since it fitted with their legal experience and the orthodoxy of their profession.[11]

Isaacs and Higgins JJ's motivations cannot be proved, and in the absence of convincing evidence to the contrary, they are entitled to the presumption that they were sincere in asserting that the Griffith Court's doctrines were erroneous as a matter of strict legal principle. Of course, it is still possible to argue that in this respect they were wrong — that those doctrines were not erroneous — but that the decision in Engineers should nevertheless be applauded on the alternative ground that it was better suited to the changed social and political circumstances of its time. That is probably how Windeyer J's dictum is best understood.

The dictum is approvingly cited so often that it has arguably become an iconic statement of a pragmatic, 'evolutionary' understanding of constitutional meaning and interpretation. For many lawyers it expresses a mature, sophisticated wisdom.[12] They would no doubt regard a more 'legalistic' analysis as naive, pedantically formalistic, or both. I respectfully dissent from this assessment. I will show that the dictum is inconsistent with some of Windeyer J's other stated opinions, and therefore with the constitutional orthodoxy that they express.[13] The dictum should be repudiated, not celebrated. The Griffith Court doctrines should be regarded as having been either right or wrong as a matter of law, even though it is difficult to decide the issue, which I will not in this article attempt to do.[14]

Later in the same judgment, Windeyer J said that the only implications the Court has authority to enforce are those that are truly part of the Constitution: 'I would prefer not to say "making implications", because our avowed task is simply the revealing or uncovering of implications that are already there.'[15] But if so, how can his observations about Engineers, just five pages earlier, possibly be justified? Either the supposed implications that the Griffith Court purported to find within the Constitution were really part of it — 'already there' — or they were not. If they were not, then the Court in Engineers corrected an 'antecedent error'. If they were really there, then the Court in Engineers must have been in error to repudiate them. Neither extrinsic social and political developments, nor the High Court, can remove an express limitation on legislative power from the Constitution. To do that, a formal amendment pursuant to s 128 of the Constitution is required. How, then, could either of them remove an implied limitation? If implied limitations truly are part of the Constitution, as Windeyer J apparently believed, there can be no difference in status between implied and express limitations. A referendum should be needed to remove one of either kind.

Can Windeyer J's views be rescued from incoherence? Three possibilities are worth considering.

2 THE 'SPONTANEOUS MUTATION' THESIS

One possibility is that the meaning of a constitution, express and implied, depends partly on the context in which it operates, and can therefore evolve in response to external social and political developments. If so, then perhaps the supposed implications were truly part of the Constitution until some time before 1920, but then disappeared from the Constitution, with the Court in Engineers recognising but not itself causing their disappearance. As Windeyer J said of the judicial role on another occasion, 'discerning growth is not the same thing as making changes.'[16] But this is a very odd view. It entails that the High Court was right when it originally recognised these implications, and also right when it repudiated them in 1920. It also entails that Isaacs and Higgins JJ were wrong when they initially dissented from the Court's recognition of the implications[17] — the required external social and political developments had not yet occurred — but had become right by the time their dissenting position won majority support in 1920 (although not for the reasons they provided, but for unstated and possibly unrecognised reasons having to do with extra-legal developments).

This peculiar transformation could have taken place only if the content of the Constitution can somehow spontaneously mutate due to changes in society. The possibility of such a spontaneous mutation is inconsistent with another of Windeyer J's views, that 'in the interpretation of the Constitution the connotation or connotations of its words should remain constant. We are not to give words a meaning different from any meaning which they could have borne in 1900'.[18] If a spontaneous mutation of the Constitution, due to changes in society, could cause the disappearance of an implied implication that it previously contained, then surely it could also cause the meanings of its words to change. Conversely, anyone who denies the latter possibility (as Windeyer J did) should also deny the former. Moreover, if a spontaneous mutation in the meaning of the Constitution could cause an implied limitation to disappear, why could it not also cause an express limitation to disappear? If implied and express limitations are both truly part of a constitution, how could the former but not the latter be liable to disappear as a result of external social developments? The very idea of express provisions spontaneously disappearing is, of course, bizarre.[19] My point here is that the idea of genuine implications — ones that are truly part of the Constitution — spontaneously disappearing is equally bizarre.

Professor Detmold has proposed an interpretation of Windeyer J's dictum according to which the meaning of the Constitution is always 'in movement', in that it evolves in response to social developments that the founders intended the Constitution to foster, such as the gradual advancement of Australian nationhood and independence. On this view, the meaning of the Constitution might initially reflect the founders' 'immediate intentions', but then gradually grow apart from them, in order to facilitate their longer term objectives.[20] But is it really likely that their 'immediate intentions' would have been inconsistent with, and eventually have to give way to, their longer term objectives? If, for example, their longer term objectives included the development of a centralising Australian nationhood, it seems unlikely that their 'immediate intentions' would have included implied prohibitions on Commonwealth legislation governing State instrumentalities or intruding into subject matters reserved to the States. Why would they have intended to erect these obstacles to the realisation of their longer term objective? If, on the other hand, they did intend the Commonwealth Parliament to be subject to such prohibitions, surely they must have intended to constrain the centralising tendencies of any developing Australian nationhood. It therefore seems much more likely that they either did or did not intend permanently to constrain Commonwealth legislative powers (subject to the possibility of a constitutional amendment), than that they intended to impose constraints that would — within a relatively short period of time — spontaneously dissolve as their longer term objective was realised.[21]

It is notable that in contemporary constitutional theory, the 'spontaneous mutation' thesis is sometimes repudiated even by those who might have been expected to promote it. For example, the pre-eminent legal philosopher Ronald Dworkin has been harshly critical of the theory called 'originalism', which maintains that until it is amended a constitution continues to mean what it was originally intended to mean. Yet he contemptuously rejects the notion that constitutional provisions 'are chameleons which change their meaning to conform to the needs and spirit of new times' as 'hardly even intelligible'.[22] Harvard Professor Laurence Tribe, another well known critic of originalism, also emphatically denies that he regards the United States Constitution 'as something that "grows and changes" by some mystical kind of organic, morphing process'.[23]

The strange idea that the meaning of the Constitution can spontaneously mutate (and that the judges may recognise but not cause the mutation) is at best a fig leaf for the quite different idea that the judges are entitled to act creatively, and give it a new, more 'up-to-date' meaning. That different idea will be discussed in section 4.

3 THE 'INEVITABLE JUDICIAL CHOICE' THESIS

The second possibility is that it was simply unclear whether or not the limitations in question were really implied by, and therefore part of, the Constitution. The Griffith Court was neither clearly right nor clearly wrong in recognising them, and the Court in Engineers was therefore at liberty to take a different view. Sir Kenneth Bailey put it thus: 'It is difficult, and probably futile, to say that the current view is wrong, and it is, in my own opinion, just as difficult to say that the former view is wrong. There is ample warrant for both, both in principle and upon authority'.[24] Professor Zines endorses Windeyer J's dictum for this reason.[25]

But this suggestion must overcome several difficulties. For a start, it can be forcefully argued that on this account Windeyer J is still wrong: the Court in Engineers must have corrected an antecedent error, because such an uncertain implication could not be regarded as a 'necessary' one as required by orthodox principles of interpretation.

Admittedly, the strength of this argument depends on what is meant by an implication having to be 'necessary'. Two different kinds of 'necessity' can be found in the case law on implications, both statutory and contractual.[26] One is a kind of 'psychological necessity': it concerns whether or not interpreters are, as it were, compelled to acknowledge an alleged implication because it is so obvious as not to be reasonably deniable. This has been called the 'obviousness test'.[27] Thus, it has sometimes been asked whether the court was 'necessarily driven' to the conclusion that some term was implied;[28] or whether 'the force of the language in its surroundings carries such strength of impression in one direction, that to entertain the opposite view appears wholly unreasonable.'[29] The 'officious bystander' test in contract law is possibly a version of this approach: it requires that an implication must be so obvious that the contracting parties, had they been asked by an officious bystander whether it was included, would have testily replied 'of course!'[30] If this conception of necessity must be satisfied, then a suggested implication whose existence is quite unclear cannot satisfy it — in which case Engineers corrected an antecedent error.

The second kind is 'practical necessity' (or in contract law, 'business efficacy'): it concerns whether or not an alleged implication is practically necessary to enable some or all of the provisions of a legal instrument achieve their intended purposes.[31] This might be called the 'practical efficacy' test. But if practical efficacy is the conception of necessity that must be satisfied for constitutional implications — and High Court authority suggests that it is[32] — then there is scope for uncertainty about a suggested implication, given that it might be uncertain whether or not it is, indeed, practically necessary for express provisions to achieve their intended purposes, or what those intended purposes are.

Most of us are, by now, 'realists' to this extent: we accept that when the meaning of a legal text remains stubbornly unclear, after all relevant legal considerations (language, context, purpose, etc) have been taken into account, judges have no alternative but to choose, on extra-legal grounds such as justice and public policy, which meaning to prefer.[33] If all the relevant legal considerations leave the matter unresolved, legal arguments on both sides being evenly balanced, the judges must resort to an extra-legal 'tie-breaker'. They must resolve all disputes that are properly brought before them: they cannot wash their hands of a dispute and require the parties to fight it out in the street. Therefore, if a stubborn ambiguity or other indeterminacy in the meaning of a constitutional provision must be resolved in order to settle a dispute, judicial choice on extra-legal grounds is legitimate because there is no alternative. Jeremy Kirk seems to interpret Windeyer J's dictum along these lines, to mean that 'in making the inevitable choices involved in constitutional interpretation judges are influenced by the evolution of Australian society (as well as by their own perceptions, preferences and values).'[34]

Could Windeyer J have believed that the Griffith Court's doctrines were uncertain in the sense that (contrary to the opinions expressed both by it, and by the Court in Engineers) it could not confidently be said either that they were, or that they were not, practically necessary for the Constitution to achieve its intended purposes, because there were equally strong arguments on both sides of the question; that therefore some tie-breaker was needed to resolve the issue; and that in effect (even though they did not understand themselves in this way) the Griffith Court, and the Court in Engineers, were guided — with equal legitimacy — by different tie-breakers, leading to different conclusions?

There are several reasons why this seems far-fetched. First, given the principle of stare decisis, how could the Court in Engineers have been justified in repudiating very important and longstanding doctrines if they were not demonstrably erroneous? That earlier doctrines are deemed erroneous may not be sufficient to warrant their overruling, but it does appear to be necessary; indeed, it has often been stated that they must be 'clearly' or 'manifestly' erroneous.[35] Of course, the Court in Engineers sought to demonstrate that the doctrines it repudiated were demonstrably erroneous; but according to this hypothesis, it was wrong to do so. If so, it was (again pace Windeyer J) probably also wrong to overrule the many precedents that established those doctrines.

Secondly, the possibility that legal arguments for and against the existence of an implication might be evenly balanced is surely very low, and unlikely to have been realised in the case of these implications. Admittedly, this is somewhat subjective: my own experience is that, once the strongest arguments on both sides of a legal disagreement have been set out, they rarely seem evenly balanced.

Thirdly, the assumption that a tie-breaker is required if arguments for and against the existence of an implication are evenly balanced, is dubious. The conclusion that the express terms of a legal instrument are qualified by an implication is a very serious one that should not be lightly reached, due to the risk of the instrument being rewritten rather than interpreted. The party arguing in favour of the implication should bear the burden of persuading the court that it exists. As the majority in Engineers put it: 'where the affirmative terms of a stated power would justify an enactment, it rests upon those who rely on some limitation or restriction upon the power, to indicate it in the Constitution.'[36] If the arguments for and against it are evenly balanced, that burden has not been discharged, and the implication should not be recognised. The Court is not placed in a predicament similar to that created by an ambiguity, which must be resolved one way or the other, with no presumption either way. If no implication can be shown to exist, the party who argued for it should lose.

Fourthly, and most importantly, there is nothing in Windeyer J's dictum that supports this interpretation of his views. As we are about to see, the evidence suggests that he meant to adopt a more radical position.

4 THE 'JUDICIAL UPDATE' THESIS

The third possibility is that genuine implications (ones that, in Windeyer J's words, are 'already there') can legitimately be removed from the Constitution, and spurious ones (which are not already there) can be added to it, by the exercise of a more robust kind of judicial creativity than that which is required to resolve indeterminacies in meaning. The Court would be entitled to do this if it were authorised to update or modernise the Constitution, in order to keep it abreast with social developments, without any need for formal constitutional amendment. If so, the legal meaning of the Constitution would be like the common law, which the judges may creatively adapt to community needs and values.

There is strong evidence that this is indeed the best interpretation of Windeyer J's position. One year after his judgment in the Payroll Tax Case, he provided a further explanation of his views. He said that the decision in Engineers was

a demonstration that in a country which has inherited the common law its essential characteristic, a capacity to grow and develop as the needs of men change, can govern fundamental law, even the concepts that a written constitution embodies. In 1901 many men and women in Australia felt strong ties with the Colony to which they belonged. They had not begun to think of themselves as belonging to the Commonwealth. But by 1920 a new generation had arisen who thought of themselves as Australians and of Australia, not a State, as the country to which they belonged. That public law, whether given by courts or by legislators, should be responsive to public sentiment is not surprising. And since an entrenched constitution is not easily altered as other statutes are, it is not surprising that developing case law puts an ever growing body on its bones which may come to be seen in unexpected new dimensions.[37]

This suggests that courts in a common law system, when interpreting a written constitution, have lawful authority to remove real implications from it, or add spurious ones to it, in response to changes in social 'needs' or 'public sentiment', partly because such a constitution is difficult to formally amend.

This is inconsistent with Windeyer J's opinion that 'in the interpretation of the Constitution the connotation or connotations of its words should remain constant. We are not to give words a meaning different from any meaning which they could have borne in 1900.'[38] If changes in social needs or public sentiment can justify judges removing real implications from, and adding spurious ones to, the Constitution, they can surely justify judges changing the meanings of its express terms. Changing the meanings of express terms is a less drastic exercise of judicial creativity than adding or deleting terms. There cannot be a good reason to prohibit the former but permit the latter.

It should be acknowledged that the courts do sometimes add spurious implications to legal instruments. I have argued elsewhere that the obviousness test should be preferred to the practical efficacy test as the test for genuine implications. Since it is possible for a provision that is essential to the practical efficacy of a legal instrument to have been omitted due to any number of possible mistakes by its drafters, its practical efficacy cannot by itself show that it was included by implication. Sometimes, what we have said or written turns out to be deficient: genuine implications do not magically spring up to protect us from our mistakes.[39] In some cases, therefore, the practical efficacy test really serves to justify the judicial repair or rectification of legal instruments, to save them from drafting omissions that would otherwise prove fatal to their efficacy.

This may explain the idiosyncratic legal terminology that describes terms being 'implied into' or 'read into' legal instruments. Terms that are genuinely implied by a text are inferred from it, not implied into or read into it: the latter are oxymoronic expressions that, in trying to have it both ways, defy ordinary English. They presumably function as euphemisms, by blurring the distinction between the discovery of genuine implications, and the insertion of spurious ones. If a court is really inserting terms into an instrument, it should say so.[40] In the case of a statute, this is consistent with constitutional orthodoxy, provided that its intended purpose is obvious and the court alters its meaning only to ensure that it achieves that purpose. If so, no damage is done either to the principle of legislative supremacy, because the court is guided by the legislature's purpose, or to the rule of law, because that purpose is obvious to reasonable people. In these cases, Windeyer J's statement that the courts merely reveal implications that are 'already there' is somewhat naive, and must be revised.[41]

But such a revision could not vindicate his dictum in the Payroll Tax Case as subsequently elaborated one year later. The practical efficacy test for 'necessity' is strictly confined. There is a qualitative difference between adding to a legal instrument a term that is essential to its practical efficacy, and adding a term that, in the opinion of the judge, will keep it abreast with changes in 'public sentiment' or extraneous social 'needs'. It is also difficult to see how an implication that is necessary to the practical efficacy of an instrument could disappear or be removed due to such changes.

Admittedly, whether or not a term is practically necessary for some or all of the provisions of a legal instrument to achieve their purposes depends on what those purposes are. If the purposes of the instrument could change, as a result of extrinsic social developments, then a term that was originally necessary for its practical efficacy might become unnecessary, and vice versa. This would be possible if the purposes of the Constitution are not its originally intended purposes (as modified by subsequent amendments), but whatever a majority of the Australian people at any particular time believe its purposes to be. Perhaps this was Windeyer J's view: that the rise of Australian nationalism had caused most Australians to attribute new purposes to the Constitution, which superseded some of its original ones. That might explain why he denied 'that the original judges of the High Court were wrong in their understanding of what at the time of federation was believed to be the effect of the Constitution and in reading it accordingly.'[42] What was generally believed to be 'the effect of the Constitution' had changed, and what was needed to ensure that it had its effect had also consequently changed.

This is an unorthodox and unappealing view of the purposes and implications of legal instruments. Implications depend on some ingredient in addition to the words of the instrument, which is usually taken to be some purpose, or implicit intention, discernible within it. But surely this must be found within its 'text and structure', understood in the historical context of its creation.[43] If judges could attribute to a constitution whatever new purposes they think a majority of their fellow citizens currently believe it has (assuming the judges are capable of distinguishing these from the purposes they themselves would prefer it to have), they would have power to make sweeping constitutional changes through pseudo-interpretation. If they could 'discover' in a constitution whatever implications are practically necessary for it to achieve its purposes, and these purposes could change according to the judges' perceptions of contemporary values, then in effect they could add to the Constitution anything at all that is practically necessary to fulfil their perceptions of contemporary values — without any formal amendment being required.[44] They could also remove previously recognised implications that were and remain practically necessary to fulfil the Constitution's originally intended purposes, on the ground that those purposes have become obsolete. The people would not need to be consulted in a referendum, and asked whether they really did believe that the Constitution should fulfil the supposed new purpose, or whether, on reflection, they really did want added to it the new terms that are necessary for it to do so. That surely cannot be right. What the Canadian Supreme Court rightly said of legislation is just as true of constitutions: 'Purpose is a function of the intent of those who drafted and enacted the legislation at the time, and not of any shifting variable.'[45]

In explaining his views a year after the Payroll Tax Case, Windeyer J went on to add these qualifications:

new needs as well as new things may be met by old words. Of course none of that means that an individual judge is free to change the law, either in its doctrines or the denotation of words, according to some view of his own of what it ought to be. Judicial idiosyncrasy is not to be legitimated by being called sociological response. The capacity for growth that is inherent in the common law may produce changes in the manner in which its doctrines are applied in particular circumstances. But discerning growth is not the same thing as making changes.[46]

This gives rise to further puzzlement. It is hard to see how the decision in Engineers amounted merely to 'discerning growth' in inherited legal principles, rather than 'making changes' — indeed, quite radical ones — to them.

5 CONCLUSION

It is impossible to resist the conclusion that Windeyer J's views on these issues lacked coherence. Given his other stated opinions, which affirmed constitutional orthodoxy, his famous dictum cannot be regarded as expressing a mature, sophisticated wisdom. In that context, it is illogical. Justice Heydon has remarked that

despite Windeyer J's unquestioned greatness, there is an inconsistency in his judgments on the present question, and sometimes ambiguity within a single judgment. In part this is because he was a pioneer, often an unconscious one, of modern theories of progressive interpretation in an age when originalist theories dominated.[47]

That may be right. An alternative possibility is that Windeyer J simply adopted Richard Latham's assessment of Engineers,[48] without adequate reflection on its compatibility with his (Windeyer J's) other opinions.

Of course, it could be argued that if the famous dictum is inconsistent with Windeyer J's other, more orthodox, opinions, so much the worse for them. Its wise pragmatism exposes their naivety and pedantic formalism. The lesson should be that, in response to social and political developments, the Court may legitimately change the meanings of the words of the Constitution, remove genuine implications from it, and add spurious implications to it. The Court should openly espouse an 'evolutionary' or 'progressive' theory of the meaning of the Constitution. Something like this might be Kirby J's response to my argument. He has cited Windeyer J's dictum to support his often stated thesis that the meaning of the Constitution evolves in response to contemporary needs and values.[49]

The final puzzle is why the majority in Work Choices saw fit to endorse the dictum, given that this seems tantamount to endorsing Kirby J's approach to constitutional interpretation, and repudiating the more orthodox approach that several of them (Gleeson CJ, Hayne and Heydon JJ in particular) have adopted in other cases.[50] Hence, Professor Zines' surprise to find them approving the dictum.[51] He draws the following inference:

The approval of this passage suggests that the demand of the Court in recent years that primacy be given to the text and structure of the Constitution is not simply based on the principle that that is the correct legal way to construe a constitution, but rather it is correct because of social and political considerations that required the Constitution to be read 'in a new light'.[52]

Could that really be what the Work Choices majority meant? If so, then future judges will be free to reject the current emphasis on text and structure, and give the Constitution a radically novel construction, if they believe that relevant social and political conditions have, once again, changed.


[*] Professor of Law, Faculty of Law, Monash University. Correspondence to <jeff.goldsworthy@law.monash.edu.au>.

[1] New South Wales v Commonwealth [2006] HCA 52; (2006) 229 CLR 1, 119 (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) ('Work Choices'), citing Victoria v Commonwealth [1971] HCA 16; (1971) 122 CLR 353, 396–7 (Windeyer J) ('Payroll Tax Case').

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

[3] Payroll Tax Case [1971] HCA 16; (1971) 122 CLR 353, 396.

[4] Richard Latham, The Law and the Commonwealth (1970) 564.

[5] Ibid.

[6] John Goldring, 'The Path to Engineers' in Michael Coper and George Williams (eds), How Many Cheers for Engineers? (1997) 1, 39.

[7] See, eg, Baxter v Commissioners of Taxation (NSW) [1907] HCA 76; (1907) 4 CLR 1087. This point is made in Stephen Gageler, 'Foundations of Australian Federalism and the Role of Judicial Review' (1987) 17 Federal Law Review 162, 181–2; Sir Anthony Mason, 'The High Court of Australia: A Personal Impression of its First 100 Years' [2003] MelbULawRw 33; (2003) 27 Melbourne University Law Review 864, 873.

[8] Geoffrey Sawer, Australian Federal Politics and Law 1901–1929 (1956) 329.

[9] Geoffrey Sawer, Australian Federalism in the Courts (1967) 128.

[10] Jeffrey Goldsworthy, 'Australia: Devotion to Legalism' in Jeffrey Goldsworthy (ed), Interpreting Constitutions, A Comparative Study (2006) 106, 121.

[11] Brian Galligan, The Politics of the High Court (1987) 102. See also Jeffrey Goldsworthy, 'Australia: Devotion to Legalism' in Jeffrey Goldsworthy (ed), Interpreting Constitutions: A Comparative Study (2006) 106, 120–1.

[12] It is said to express 'a more sophisticated view' in Gageler, above n 7, 181.

[13] I previously pointed this out in Jeffrey Goldsworthy, 'Originalism in Constitutional Interpretation' [1997] FedLawRw 1; (1997) 25 Federal Law Review 1, 16.

[14] My views are expressed in Jeffrey Goldsworthy, 'Australia: Devotion to Legalism', above n 10, 118–19.

[15] Payroll Tax Case [1971] HCA 16; (1970) 122 CLR 353, 402 (approved in McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140, 168–70 (Brennan CJ), 184 (Dawson J), 202 (Toohey J)).

[16] Sir Victor Windeyer, 'Some Aspects of Australian Constitutional Law' (Speech delivered at the J A Weir Memorial Lecture, Edmonton, 13–14 March 1972), 38 (for the full quote and further discussion see the text to n 37 below).

[17] Baxter v Commissioners of Taxation (NSW) [1907] HCA 76; (1907) 4 CLR 1087.

[18] R v Commonwealth Conciliation and Arbitration Commission; Ex parte Association of Professional Engineers [1959] HCA 47; (1959) 107 CLR 208, 267; see also Bonser v La Macchia [1969] HCA 31; (1969) 122 CLR 177, 230.

[19] One referee asked how this proposition is consistent with s 59 of the Constitution. The answer is that s 59 is still in the Constitution — it has not disappeared. That it is no longer used is beside the point.

[20] Michael Detmold, 'Original Intentions and the Race Power' (1997) 8 Public Law Review 244, 244–5, 250–1. For an earlier and somewhat different version of this argument see Michael Detmold, 'Australian Law: Federal Movement' [1991] SydLawRw 4; (1991) 13 Sydney Law Review 31.

[21] The general idea that the founders intended the High Court to adopt a 'progressive' or 'evolutionary' interpretive methodology is refuted in Greg Craven, 'Heresy as Orthodoxy: Were the Founders Progressivists?' [2003] FedLawRw 3; (2003) 31 Federal Law Review 87.

[22] Ronald Dworkin, 'Comment' in Antonin Scalia (ed), A Matter of Interpretation: Federal Courts and the Law (1997) 115, 122. Whether or not this coheres with his rejection of originalism is debatable: for an argument that Dworkin is really a kind of originalist, see Jeffrey Goldsworthy, 'Dworkin as an Originalist' (2000) 17 Constitutional Commentary 49.

[23] Laurence Tribe, 'Comment' in Scalia, above n 22, 73.

[24] Sir Kenneth Bailey, 'The Working of the Constitution Since Federation' in Garnet Vere Portus (ed), Studies in the Australian Constitution (1933) 23, 44.

[25] Leslie Zines, The High Court and the Constitution (5th ed, 2008) 17.

[26] Discussed in Jeffrey Goldsworthy, 'Implications in Language, Law and the Constitution' in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994) 150, 168–70. See also Elisabeth Peden, Good Faith in the Performance of Contracts (2003) 60–71.

[27] Goldsworthy, 'Implications in Language, Law and the Constitution', above n 26, 168; Peden, above n 26, 61–3.

[28] Hamlyn v Wood [1891] 2 QB 488, 494 (Kay LJ), quoted with approval by Lord Atkinson, speaking for the Judicial Committee of the Privy Council in Douglas v Baynes [1908] AC 477, 482. See also Nelson v Walker [1910] HCA 27; (1910) 10 CLR 560, 586 (Isaacs J) and H K Lucke, 'Ad Hoc Implications in Written Contracts' [1973] AdelLawRw 3; (1973) 5 Adelaide Law Review 32, 34.

[29] Worrall v Commercial Banking Co of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28, 32.

[30] Goldsworthy, 'Implications in Language, Law and the Constitution', above n 26, 161; Peden, above n 26, 60–1.

[31] The version found in contract law is called the 'business efficacy' test: see Joseph Starke, Nicholas Seddon and M P Ellinghaus, Cheshire & Fifoot's Law of Contract (6th Australian ed, 1992) 212–13. As for statutes, see Slipper Island Resort Ltd v Minister of Works & Development [1981] 1 NZLR 136, 139.

[32] Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106, 135 (Mason CJ), cited with approval in McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140, 168–9 (Brennan CJ), 231 (McHugh J); APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322, 409 (Gummow J), Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138, 145 (Gleeson CJ).

[33] This proposition is denied by Ronald Dworkin, who maintains that the law is so rich in underlying principles that it never fails to provide an answer to a legal dispute: see Ronald Dworkin, Taking Rights Seriously (1977) and Ronald Dworkin, Law's Empire (1986). On his view, Windeyer J's dictum must surely be erroneous: in 1920, the implied constitutional doctrines that were repudiated in Engineers must have been either right or wrong as a matter of law, with no room for judicial choice.

[34] Jeremy Kirk, 'Constitutional Interpretation and a Theory of Evolutionary Originalism' (1999) 27 Federal Law Review 323, 332–3.

[35] Gian Boeddu and Richard Haigh, 'Terms of Convenience: Examining Constitutional Overrulings by the High Court' [2003] FedLawRw 5; (2003) 31 Federal Law Review 167, 170–1; Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.

[36] Engineers [1920] HCA 54; (1920) 28 CLR 129, 154.

[37] Windeyer, above n 16, 36–7.

[38] R v Commonwealth Conciliation and Arbitration Commission; Ex parte Association of Professional Engineers [1959] HCA 47; (1959) 107 CLR 208, 267; see also Bonser v La Macchia [1969] HCA 31; (1969) 122 CLR 177, 230.

[39] Goldsworthy, 'Implications in Language, Law and the Constitution', above n 26, 168–70.

[40] Chief Justice James Spigelman denies that terms can be legitimately added to statutes, and disapproves of the expression 'reading into' because it suggests the opposite: see the lucid summary of views he has expressed in several cases, in his Statutory Interpretation and Human Rights (2008) chapter 3, 132–4.

[41] Or is it possible that his carefully chosen words convey a more subtle message than is first apparent? He said: 'I would prefer not to say "making implications", because our avowed task is simply the revealing or uncovering of implications that are already there': Payroll Tax Case [1971] HCA 16; (1970) 122 CLR 353, 402, quoted at n 15 above. Could he have intended this to imply: although 'I would prefer not to say' that we make implications, we sometimes do; and although our 'avowed' task is simply to reveal already existing implications, that is not always our real task? I think not.

[42] Payroll Tax Case [1971] HCA 16; (1970) 122 CLR 353, 396.

[43] To use terminology emphasised in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 and subsequent cases: see below n 50.

[44] See Jeffrey Goldsworthy, 'Interpreting the Constitution in its Second Century' [2000] MelbULawRw 27; (2000) 24 Melbourne University Law Review 677, 690.

[45] R v Big M Drug Mart Ltd 1985 CANLII 69; [1985] 1 SCR 295, 335.

[46] Windeyer, above n 16, 38.

[47] See Justice J D Heydon, 'Theories of Constitutional Interpretation: A Taxonomy' (2007, Winter) Bar News (NSW) 12, 25.

[48] See above n 4.

[49] Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, 355 [87]. For criticism of that thesis see Goldsworthy, 'Interpreting the Constitution in its Second Century', above n 44.

[50] Those cases include Re Wakim; Ex parte McNally (1999) 198 CLR 511 (Gleeson CJ and Hayne J); Singh v Commonwealth [2004] HCA 43; (2004) 222 CLR 322 (Gleeson CJ and Hayne J); XYZ v Commonwealth [2006] HCA 25; (2006) 227 CLR 532 (Heydon J); Roach v Electoral Commissioner [2007] HCA 43; (2007) 233 CLR 162 (Gleeson CJ, Hayne and Heydon JJ). For a more recent discussion of these issues, see Jeffrey Goldsworthy, 'Original Meanings and Contemporary Understandings in Constitutional Interpretation' in H P Lee and Peter Gerangelos (eds), Constitutional Advancement in a Frozen Continent (2009).

[51] Leslie Zines, 'The High Court and the Constitution in 2006' [2007] UNSWLawJl 8; (2007) 30 University of New South Wales Law Journal 174, 179.

[52] Zines, The High Court and the Constitution, above n 25, 124.


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