Tilley, David --- "The New Cloak? The Limits Of Recourse To History In Constitutional Interpretation" [2020] UNSWLawJlStuS 17; (2020) UNSWLJ Student Series No 20-17

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THE NEW CLOAK? THE LIMITS OF RECOURSE TO HISTORY IN CONSTITUTIONAL INTERPRETATION

DAVID TILLEY

“The ever-present danger is that 'strict and complete legalism' will be a cloak for undisclosed and unidentified policy values”^[1]

– Sir Anthony Mason, 1987

The Mason Court (1987-1995) is famous for its rejection of the doctrine of "strict and complete legalism" espoused through much of the High Court of Australia’s history.^[2] The basis for such a rejection was on the grounds that legalism was a “cloak” for undisclosed and unidentified policy values.^[3] Recognising that the Constitution cannot be divorced from the values underpinning it, the Court attempted to elucidate these values from the text and structure of the Constitution, in order to interpret the document itself.^[4] This became known as the "text and structure method" and gave rise to a greater weight to the constitutional authority of concepts such as the separation of powers and responsible and representative government in shaping and forming constitutional interpretation. Since this period the Court has sought to further expound the true meaning and content of these values and their role in constitutional interpretation.

However, as has been argued by Adrienne Stone the text and structure interpretive method provides only superficial clarity and transparency as there are almost always multiple reasonable ways in which the values advanced by particular sets of constitutional textual provisions or structures can be interpreted.^[5] Stone writes that the method: “appears to offer judges the ‘safe harbour’ of constitutional text and structure. ... [However,] the text and structure method cannot answer [difficult questions on constitutional interpretation].”^[6] This essay extends this argument to examine the use of history as another illusory “safe harbour” of constitutional interpretation. In turning to history to determine the meaning and application of constitutional values, the judge has the appearance of turning to the safe harbour of objectivity and fact. However, not only does a recourse to history as a source of constitutional authority reveal a principled commitment to constitutional meaning anchored in the past,^[7] such recourse is similarly unable to definitively answer difficult questions about the content of constitutional values and their application in interpreting the Constitution. This essay will argue that recourse to history provides something of a “new cloak” for undisclosed and unidentified policy values.

This argument will be built through an analysis of the use of history in purporting to reveal the content of the values that underpin the Constitution, in two cases. The first case will be Graham^[8] where the use of history had contested utility in determining the minimum content of judicial review as an element of the separation of powers doctrine. The second case will be Banerji^[9] where history was used by all judges for different purposes and in different manners in determining the content of responsible government. Analysis of these two cases will demonstrate that in much the same way that Adrienne Stone’s analysis revealed the inability of the text and structure method to resolve difficult questions of constitutional interpretation, the use of history provides multiple reasonable ways to elucidate the content of Australian constitutional values and their application to interpreting the Constitution. These cases illustrate the façade of objectivity that history creates, masking – as the text and structure method has done in the past, and legalism before it – undisclosed and unidentified policy values.

I WHAT IS HISTORY?

The common law is a system that is built on history, as contained in judge-made law. History has long been recognised as one of the four pillars – alongside text, structure and precedent – of constitutional reasoning in Australia.^[10] However, history is not only one element of law but a distinct discipline, recognised as involving complicated methodological questions. These include the authority of secondary sources, the understanding to be given to the bias of an author’s perspective and how to approach contested accounts of history.^[11] However, these questions have thus far been systemically disregarded when the discipline of history has been brought to bear in understanding the Constitution.^[12] Despite these difficulties, reference to pre-federation history, such as the Convention Debates, has long held near universal acceptance^[13] identifying the purpose of constitutional provisions and to elucidate their meaning given to words at the time of their drafting.^[14] However, as these cases will demonstrate, history is increasingly being used in a broader context and being asked to answer more difficult questions. Specifically, these cases demonstrate the use of history to understand the assumptions and values that lie behind and informed the drafting of the text and structure of the Constitution.

II GRAHAM

This essay will now turn to each case to examine and evaluate this use of history in constitutional interpretation. The first case to be analysed is Graham, which concerned the content of s 75(v) of the Constitution. That section provides a guarantee of the High Court’s original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.^[15] It had previously been accepted in Plaintiff S157/2002^[16] and Bodruddaza^[17] that the section’s guarantee of “original jurisdiction” implied a limit on the power of Parliament to remove avenues for judicial review. However, the plaintiff argued that such a principle additionally included a minimum content of judicial review. The plaintiff's visa had been cancelled by the Minister for Immigration and Border Protection under s 501(3) of the Migration Act 1958 (Cth) on the grounds that the plaintiff did not pass the character test and that the Minister was satisfied that the refusal or cancellation was in the national interest.^[18] In doing so, the Minister purported to rely on s 503A(2) of the Act which prevented him from being required to divulge information, if that information was communicated by a gazetted agency (such as an intelligence agency) on the condition that it be treated as confidential.^[19] The Minister had not shared that information with the Court and argued that the review must be conducted without resort to the undisclosed information,^[20] analogising this refusal with past acceptance of an executive certification that disclosure was not in the public interest.^[21] The plaintiff argued that preventing the Court from having access to this evidence would impair the ability of the Court to make findings of fact.^[22] This was argued to be an essential element of the content of judicial review, guaranteed by s 75(v).^[23]

The sparse reference to "original jurisdiction" in s 75(v), on its own, provided little by way of assistance in determining any implied content of judicial review. Thus, in this case, the assistance offered by the interpretive methods of legalism and “text and structure” were limited. As such, the majority and Edelman J (dissenting) turned to history to assist determine whether s 75(v) – and the Constitution more generally – guaranteed a minimum content of judicial review. However, the two judgments adopted contrasting methods of historical inquiry, turned to different historical sources and understood history as serving different purposes – all of which drove contesting conclusions. This contest about history came about because of the dearth of precedent on the issue of the minimum content of judicial review under s 75(v). The two judgments diverged on how they understood this silence and the conclusions that could be drawn from it. As will be demonstrated, history was used in each judgment as a proxy for contrasting methods of constitutional interpretation and undisclosed and unidentified policy values.

The majority considered the absence of any jurisprudence relating to this matter in relation to the original jurisdiction of the High Court under s 75(v) as requiring a return to first principles.^[24] The focus of the majority on first principles shaped the purview of their historical inquiry, commencing with the history of the incorporation of judicial review into the Constitution. Particularly, the majority focussed on the principle of the separation of powers, as developed in the United States with Marbury v Madison and incorporation in Australia. The purpose of this was to determine the fundamental function of the judiciary, which was said to be to declare and enforce the law through the application of the judicial process and remedies.^[25] It was said that by Federation that this principle was accepted as “axiomatic.”^[26] This view of history informed the majority of the values that underpinned s 75(v) and gave meaning and context to the words “original jurisdiction” that were not otherwise present in bare meaning of the words or in the text or structure of the Constitution. This led the majority to accept an implied minimum content to judicial review in s 75(v).^[27] Any law that had the “legal and practical operation” of denying the court the ability to enforce the limits to which Parliament had set over the decision-making powers of officers of the Commonwealth was thus invalid as it impaired the ability of the court to perform what was now said to be required by the words “original jurisdiction”.^[28] The majority applied this test and declared that the practical operation of s 503A(2)(c) was to shield a purported exercise of power under the scheme from scrutiny,^[29] which was invalid to the extent that it prevented the Minister from being required to divulge or communicate information to the Court when exercising its s 75(v) jurisdiction.^[30]

Having arrived at an answer based on history, the majority turned to Edelman’s competing account, similarly based on historical argument. The majority attacked Edelman J’s “attempted analogy” to the “supposed historical position” of past acceptance of the withholding of admissible evidence by the executive as too narrow,^[31] incomplete^[32] and misplaced.^[33] However, these attacks were in relation to specific illustrations that Edelman J had used to demonstrate his decision. It was not just the illustrations that Edelman J chose that were different – but the sources that he used, the inquiry he conducted and what he understood from the silence of history on this matter. Although these historical methodological questions were the true points of difference between the majority and Edelman J, they were not addressed by the majority. Rather, it was on the basis of demonstrating the flaws in Edelman J’s illustrations that the majority was satisfied that it could reject Edelman J’s historical analysis and choices wholesale.

As foreshadowed, in contrast with the majority, Edelman J understood a need for caution in considering to introduce a novel implication where "no submission having this effect has ever been made and accepted during a century of legislation."^[34] Accordingly, the “significant reform” which the Court was being asked to make required close attention to the “doctrinal and historical foundations for the implication” in the Constitution.^[35] This focus was on what a reasonably, legally informed person at the time of Federation would understand the Constitution to mean. Justice Edelman labelled this inquiry “avowedly historical,” preferring – what he saw as – the legitimacy offered by the use of legal history over “intuition or divination” in determining the content of the implication.^[36] On this basis, Edelman J conducted a broad historical analysis of judicial review prior to, at and after Federation to reject the plaintiff’s argument as "ahistorical."^[37] That is, the submissions would have the effect that the Constitution would invalidate legislation^[38] which had existed for more than 150 years^[39] and would overturn the previously unquestioned acceptance of the conclusive nature of a certificate of non-disclosure by the executive.^[40]

This case demonstrates the inability of history to provide a safe harbour for constitutional interpretation. When faced with the task of resolving difficult questions of constitutional interpretation, both judgments purported to withdraw to the “safe harbour” of objectivity and fact, offered by history. However, as has been demonstrated this safe harbour was illusory as there were (at least) two accounts of history, explored in the two judgments, that provided competing interpretations of the meaning of “original jurisdiction.” This demonstrates the new cloak that history provides in masking the underlying choices that drove each judgment’s choice of history. Both judgments were able to validly use history from a similar period to support and shape their contrasting arguments. However, as seen, it was not just the historical illustrations of their arguments that were contrasting, rather the choices that were made in each judgment to determine the scope and purpose of their historical inquiry. These choices were made without reasoned justification from a historical perspective but presented as the one true account of the history of judicial review in Australia. This underlines the inextricable link between judicial choices and values and constitutional reasoning. Neither judgment critiqued and evaluated their own choice of history and provided little but substitutions of the opposing’s purported account of history. This case further demonstrates the reluctance that the Court typically has in engaging with the methodological questions of the discipline of history. There was very little critique of the strength and reliability (or lack thereof) of the sources used to support the arguments made and no acknowledgment of the potential bias in the scopes and purposes chosen by the Court. This reluctance cloaked the underlying constitutional values and competing principles of interpretation that the judgments adopted in arriving at their respective answers.

III COMCARE V BANERJI

The implied freedom of political communication developed out of a recognition that the twin principles of responsible and representative government are the fabric on which the Constitution is written. These principles shaped and formed the structure and drafting of the Constitution. This development itself derived recognition through historical exegesis, grounded both in the text of the Constitution^[41] and the history of its drafting.^[42] The second case to be analysed, Banerji concerned the use of history in understanding the content of these values. In this case, the respondent’s employment was terminated under the Public Service Act 1999 (Cth) on account of several of her tweets (under a pseudonym) that had been critical of her department, its employees, and the policies it was tasked with implementing.^[43] The respondent contested the termination of her employment contending that in so far as the impugned provisions purported to authorise sanctions against APS employees for anonymous political communications, they imposed an unjustified burden on the implied freedom of political communication.^[44]

The implied freedom of political communication is an implication that is said to be drawn from the text and structure of the Constitution, primarily ss 7 and 24 which provide that members of Parliament be “directly chosen by the people.”^[45] In ACTV, the case in which the implied freedom was first accepted by a majority of the High Court, the Court was careful to ground the existence of the freedom in the text.^[46] It is understood that these provisions encapsulate all that is necessary to effectuate the free election of representatives at periodic elections, particularly free political communication.^[47] This freedom acts as a judicially enforceable limit on government regulation of communication relating to matters of government and politics.^[48] However, this freedom is not absolute and is limited only to what is necessary for the effective operation of the system of representative and responsible government provided for by the Constitution.^[49] The current test for whether a law infringes this constitutional limit is a three-stage test.^[50]

The second stage of the test involves an inquiry into whether the impugned provisions are legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.^[51] In this case the impugned provisions provided a statutory purpose, that was accepted^[52] as legitimate,^[53] to “establish an apolitical public service that is efficient and effective in serving the Government, the Parliament and the Australian public.”^[54] However, it was submitted by the Commonwealth Attorney-General that the purpose was not merely compatible with the constitutionally prescribed system of representative and responsible government, but also protected and enhanced the system.^[55] This would be significant in the third stage in achieving "adequacy in the balance" or "reasonably appropriate and adapted" (Gageler J’s terminology), weighting the importance of this purpose to overcome the acknowledged burden^[56] that the provisions placed on the implied freedom. Each of the four judgments turned to history to determine the nature of the relationship of the public service to responsible government.

It was noted in each judgment that the Constitution provided for some elements of the public service, although references to the Constitution ranged from Gordon J’s sole reference to s 67 to Gageler J’s comprehensive fifteen references.^[57] Overall, a picture emerged of the provision by the framers for the establishment of departments of State,^[58] overseen by Ministers of State who are required to sit in Parliament.^[59] By contrast, those making up the departments of State – “office[rs] of profit under the Crown" – were precluded from being chosen to sit in Parliament.^[60] Finally, the Constitution vested the power for the appointment and removal of these departmental officers in the executive government, “until Parliament otherwise provides”.^[61] Parliament made provision for the appointment and removal of these offers through the Public Service Act 1999 (Cth).

Although this constitutional scheme provided the bare frame of the relationship between executive power and the legislature, it did little to describe the necessary character of the institutions – in this case “departments of state”. It did not necessarily prescribe that these departments be apolitical (other than preclusion from sitting in Parliament, which Ms Banerji was not trying to do), efficient or effective – as was the provided statutory purpose of the Act. It is at this point – at the limit of the assistance provided by the text and structure of the Constitution – that each of the four judgments turned to history to determine whether the public service’s "apolitical" character was more than compatible with the constitutional conception of responsible government. However, as will be demonstrated each judgment analysed slightly different aspects of the public service’s history and drew from different sources. Although these choices were pivotal in shaping their conclusions about the content of responsible government, no judge critically analysed their own choices – or that of the contrasting versions of history in the other judgments – from the perspective of the doctrine of history.

The four-member majority of Kiefel CJ, Bell, Keane and Nettle JJ only very briefly considered the provision for the public service in the Constitution by reference to ss 64 and 67^[62] and noted the official "Northcote-Trevelyan" Report of British civil service reforms of the mid-nineteenth century which effectively ended ministerial patronage and their adoption by the Commonwealth almost immediately after Federation (without disclosing these developments in any detail).^[63] The majority stated that these reforms demonstrated that an “apolitical, skilled and efficient service of the national interest” had been the ethos of the public service throughout the whole period of the public administration of the Commonwealth.^[64] The majority considered that this history demonstrated the significance of the public service as a constituent part of the system of representative and responsible government,^[65] one that supported the effective functioning of responsible government.

Similarly, Gageler J examined the provision for the public service in the Constitution and the history of public service reform in the UK and Australia (albeit at much greater length). Justice Gageler considered the entire scheme of responsible government as found in the Constitution and noted the long history and tradition of “professionalism and political neutrality” of the officers of the departments established by the Constitution by reference to Professor Hearn’s 1867 report on the adoption of the Northcote-Trevelyan reforms in the colonies and Professor Spann’s 1976 report on the more recent reforms of the public service.^[66] This analysis demonstrated the link of the exercise of executive power by public servants to Parliament and the public through the Ministers of State who oversee the public service. ^[67] The apolitical ethos was essential to this system as it prevented its unravelling by promoting trust within and for the executive branch of government. ^[68] In this way, Gageler J agreed with the majority that an apolitical public service was not merely compatible with the system of representative and responsible government, but served to enhance this system.^[69]

Justice Gordon’s analysis commenced comparatively much later in time with the first guidelines for the conduct of Commonwealth public servants in 1979. Less concerned with the structural provision of responsible government in the Constitution, Gordon J was much more focussed on the legitimacy of the extent of the limit of political activity by public servants for the purpose of safeguarding the political neutrality of the public service.^[70] The implicit assumption in restricting the inquiry only to the extent of the limit, and not examining the existence and genesis of an apolitical ethos, was an acceptance of an inextricable link of the public service with its apolitical character. This shaped the conclusion of Gordon J’s historical inquiry that an apolitical public service was a “defining characteristic” of responsible government.^[71] This is subtly different to the judgments above, which limit the role of the apolitical character of the public service as one that supports responsible government. Rather here, Gordon J is led by her historical inquiry to conclude that the apolitical character is a feature of responsible government itself. This conclusion shaped how Gordon J applied the three-stage test to the impugned provisions. Given that the burden of the legislation on free political communication was “directed wholly to maintenance of an apolitical public service, a defining characteristic of the constitutionally prescribed system of responsible government”, the impugned provisions and the executive action taken in relation to the respondent had “no other purpose or effect.”^[72] This meant, in contrast with the other judgments, the significance of the public service to responsible government did not enlarge the weight to be given to the purpose, but removed any weight to be given to the burden imposed on political communication.

In stark contrast with this conclusion, Edelman J accepted that the burdens cast a powerful chill over political communication^[73] and imposed deep and broad constraints on the free political communication of public servants.^[74] Ultimately however, Edelman J too upheld the validity of the provisions. Justice Edelman’s historical inquiry centred on Public Service Act’s predecessors^[75] and pre-federation history.^[76] It was from this viewpoint that Edelman J remarked that the Code of Conduct which governed Ms Banerji’s actions as a public servant was less extreme than predecessors to the Public Service Act, no longer turning public servants into “lonely ghosts.”^[77] This analysis revealed much more significant historical restrictions on the political communication of public servants. It further shed light on the reforms – shifting from a restriction on public comment to the imposition of the duty on officers not to misuse their position – arriving with the current Public Service Act.^[78] In light of this history, Edelman J concluded that the impugned provisions only limited the outer boundary of political communication.^[79] As he had done in Graham, Edelman J appeared to consider lack of constitutional challenge to previous iterations of the Act (which were described as imposing even more “swingeing restrictions” on the political communications of public servants) as providing weight to the constitutional validity of the lesser restrictions in this case.^[80] Turning to the pre-federation history of the public service as the majority and Gageler J had done, he examined the development of a relationship between the public service and executive government, enhancing the function responsible government.^[81] Ultimately, it can be seen that this drove Edelman J’s final conclusion which was that this supporting function provided additional weight to the purpose of the Public Service Act such that only a “gross imbalance” between the purpose and the burden on the freedom could result in invalidity.^[82]

This case demonstrates the use of history in providing a false sense of certainty and clarity in resolving difficult questions about the content of constitutional values, such as responsible government. In this case, the question for determination was the relationship of an apolitical public service to the concept of responsible government. In determining the nature of this relationship, the four judgments each emphasised and drew from different sources concerning its history. These contrasting historical inquiries ultimately shaped their respective conclusions. The majority and Gageler J had specific recourse to the British public service reforms of the 19^th century, concluding that an apolitical public service was a supportive element of responsible government. By contrast, Gordon J engaged with the guidelines for the conduct of public servants, concluding that an apolitical public service was a part of responsible government itself. Finally, Edelman J engaged with previous iterations of the Public Service Act and the historical progression away from restrictions on the speech of public servants to the imposition of a duty to uphold public service values, also concluding that an apolitical public service was a part of responsible government itself.

These differences highlight how history could not provide one, objective understanding as to the relationship between responsible government and an apolitical public service. Rather, history provided each of the four judgments with support for their contrasting viewpoints. This outcome demonstrates the failure of history to provide conclusive answers to difficult constitutional questions. In order to disseminate a single and discernible meaning of responsible government, the High Court must make a substantive value judgment, precisely because no one meaning has before been delineated – noting precedent, not in the text or structure of the Constitution nor in broader historical sources. As Sir Anthony Mason argued for the revelation of the values underpinning judgments,^[83] so too do the values underpinning judgments surrounding the content of Australia’s constitutional values need to be brought into the light and debated.

IV CONCLUSION

It has been famously said that the principles of representative and responsible government form part of the fabric on which the written words of the Constitution are superimposed.^[84] However, the cases examined in this essay demonstrate that many years later, these principles and others are still being thrust into the light, examined and understood. There has been a tendency in recent constitutional cases for the High Court to turn to history in order to examine and understand these underlying principles and values.

The cases of Graham and Banerji demonstrate two recent examples of this tendency. These cases were concerned with the content of the principles of responsible government and judicial review. In each case and in each judgment, history was used as a way of supporting a particular conception of these constitutional principles. However, in each case there were multiple reasonable ways in which Australia’s constitutional principles could be advanced and interpreted.^[85] This essay has drawn parallels with Adrienne Stone’s critique of the text and structure method as being incapable of providing a singular reasonable way to understand constitutional interpretation. As was revealed in this essay, the use of history alone could similarly not determine the content of responsible government and judicial review. Rather, the judgments in Graham and Banerji cloaked the competing principles of constitutional interpretation and choices over values in a recourse to history. The judgments sought the security and purported legitimacy of legal history, but a closer analysis reveals that they were unable to find it.

The danger complained in this essay is not of the use of history in constitutional interpretation. The danger complained of is rather the use of history to mask policy values and choices about constitutional interpretation by presenting what values-based arguments as facts from history. The use of history in constitutional interpretation can assist greatly in the interpretative inquiry about the meaning and purpose of constitutional provisions.^[86] However, a more serious engagement with history is required. Such an engagement must acknowledge the potential dangers of a recourse to history^[87] and seriously engage with the methodological questions of the discipline of history.^[88] These questions can no longer be systemically disregarded when history is brought to bear in understanding the Constitution.

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^[1] Sir Anthony Mason, ‘The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience’ [1986] FedLawRw 1; (1986-7) 16 Federal Law Review 1 (footnotes omitted) (‘The Role of a Constitutional Court’).

^[2] Theunis Roux, ‘Reinterpreting 'the Mason Court Revolution': An historical institutionalist account of judge-driven constitutional transformation in Australia’ (2015) 43(1) Federal Law Review 1; James Stellios, The High Court: Methods, Techniques and Attitudes Zines’ the High Court and the Constitution (The Federation Press, 2015), 647.

^[3] Mason, ‘The Role of a Constitutional Court’ (n 1) (footnotes omitted).

^[4] Rosalind Dixon and Gabrielle Appleby, ‘Constitutional Implications in Australia, Explaining the Structure – Rights Dualism’ in Rosalind Dixon and Adrienne Stone (eds), The Invisible Constitution in Comparative Perspective (Cambridge University Press, 2018), 344.

^[5] Adrienne Stone’s analysis was made in the context of the implied freedom of political communication but is applicable to constitutional interpretation generally: Adrienne Stone, ‘The Limits of Constitutional Text and Structure Revisited’ [2005] UNSWLawJl 50; (2005) 28(3) University of New South Wales Law Journal 842 (‘The Limits of Constitutional Text and Structure Revisited’); Rosalind Dixon, ‘The Functional Constitution: Re-Reading the 2014 High Court Constitutional Term’ (2015) 43(3) Federal Law Review 455, 464 (‘Functional Constitution’); Robert French, ‘Interpreting the Constitution – Words, History and Change’ [2014] MonashULawRw 4; (2014) 40(1) Monash University Law Review 29, 30.

^[6] Stone (n 5), ‘The Limits of Constitutional Text and Structure Revisited’.

^[7] Helen Irving, ‘Constitutional interpretation, the High Court and the discipline of history’ (2013) 41(1) Federal Law Review 95, 96 (‘Constitutional interpretation’).

^[8] Graham v Minister for Immigration and Border Protection [2017] HCA 33 (‘Graham’).

^[9] Comcare v Banerji [2019] 23 (‘Banerji’).

^[10] Cheryl Saunders and Adrienne Stone, ‘Constitutional Reasoning in the High Court of Australia’ in András Jakab, Arthur Dyevre and Giulio Itzcovich (eds), Comparative Constitutional Reasoning (CUP, 2017), 49; Nicholas Aroney, Peter Gerangelos, James Stephen Stellios, Sarah Louise Murray and Robert Shenton French, The Constitution of the Commonwealth of Australia: history, principle and interpretation (Cambridge University Press, 2015).

^[11] Irving, ‘Constitutional Interpretation’ (n 7) 99.

^[12] Ibid 108-20.

^[13] It has been noted that this use increased dramatically following the extensive reliance on conventional debates in Cole v Whitfield [1988] HCA 18; (1998) 165 CLR 360: Carl McCamish, 'The Use of Historical Materials in Interpreting the Commonwealth Constitution' (1996) 70(8) Australian Law Journal 638, 638-639.

^[14] Stephen Gageler, ‘Small Steps and Giant Leaps: Patterns in Australian Constitutional Adjudication’ (Speech, Annual Tony Blackshield Lecture, 27 November 2018).

^[15] Australian Constitution s 75(v).

^[16] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476.

^[17] Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; (2007) 228 CLR 651 668.

^[18] Migration Act 1958 (Cth), s 501(3).

^[19] Graham (n 8), 1 (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).

^[20] Ibid 6.

^[21] Ibid 60.

^[22] Ibid 29.

^[23] Ibid.

^[24] Graham (n 8), 38 (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).

^[25] Ibid 39-40.

^[26] Ibid 40: referencing Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1, 262-263 (Fullagar J).

^[27] Graham (n 8), 45.

^[28] Ibid 46.

^[29] Ibid 53.

^[30] Ibid 70.

^[31] Ibid 60.

^[32] Ibid 61.

^[33] Ibid 62.

^[34] Ibid 73.

^[35] Ibid 71 (Edelman J).

^[36] Ibid 79 quoting Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 93 (Gaudron and Gummow JJ).

^[37] Graham (n 9), 76 (Edelman J).

^[38] Citing, amongst others: R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598; see generally: S A De Smith, "Statutory Restriction of Judicial Review", (1955) 18 Modern Law Review 575

^[39] Ibid 97.

^[40] See for example: Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319.

^[41] Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 133 (Mason CJ) (‘Australian Capital Television’).

^[42] Ibid, 137-9.

^[43] Banerji (n 9), 2 (Kiefel CJ, Bell, Keane and Nettle JJ).

^[44] Ibid 22.

^[45] Australian Capital Television (n 39), 137 (Mason CJ).

^[46] Ibid, 134.

^[47] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1992) 189 CLR 520, 557 (‘Lange’).

^[48] Clubb v Edwards; Preston v Avery [2019] HCA 11, 8 (Kiefel CJ, Bell and Keane JJ).

^[49] Lange (n 45), 557.

^[50] McCloy [2015] HCA 34 (‘McCloy’) and modified in Brown v Tasmania [2017] HCA 43 (‘Brown’). Note that Gageler and Gordon JJ reject the utility of the structured proportionality tool used by the other justices in the third stage of the McCloy-Brown test.

^[51] McCloy (n 48) 193-195 as modified by Brown (n 48) 363-364.

^[52] Banerji (n 9), 30 (Kiefel CJ, Bell, Keane and Nettle JJ); 100 (Gageler J); 143 (Gordon J); 190 (Edelman J).

^[53] Ms Banerji accepted the purpose was legitimate: Banerji (n 9), 190 (Edelman J).

^[54] Public Service Act 1999 (Cth), s 3(a).

^[55] Attorney-General (Cth), ‘Submissions of the Attorney-General of the Commonwealth (Intervening)’, Submission in Banerji (n 5), No C 12 of 2018, 7 November 2018, 34.

^[56] Banerji (n 9), 29 (Kiefel CJ, Bell, Keane and Nettle JJ); 97 (Gageler J); 166 (Edelman J); cf 156 (Gordon J).

^[57] Ibid, 31 (Kiefel CJ, Bell, Keane and Nettle JJ); 56-65 (Gageler J); 113 (Gordon J); 202 (Edelman J).

^[58] Australian Constitution s 64.

^[59] Ibid s 64.

^[60] Ibid s 44(iv).

^[61] Ibid s 51(xxxvi).

^[62] Banerji (n 9), 31 (Kiefel CJ, Bell, Keane and Nettle JJ).

^[63] Ibid, 31.

^[64] Ibid, 31 (Kiefel CJ, Bell, Keane and Nettle JJ).

^[65] Ibid.

^[66] Ibid 70 (Gageler J).

^[67] Ibid 65.

^[68] Ibid 73.

^[69] Ibid 100.

^[70] Ibid 128.

^[71] Ibid 111.

^[72] Ibid 150-155.

^[73] Ibid 164 (Edelman J).

^[74] Ibid 166.

^[75] See Ibid 171-173.

^[76] Ibid 171 and 202-204.

^[77] Ibid 164.

^[78] Ibid 174

^[79] Ibid 182.

^[80] See also Peter Gerangelos, “Section 61 of the Commonwealth Constitution and an ‘Historical Constitutional Approach: “An excursus on Justice Gageler’s Reasoning in the M68 Case” [2018] UWALawRw 20; (2018) 43(2) University of Western Australia Law Review 103.

^[81] Banerji (n 9), 179.

^[82] Ibid 205.

^[83] Mason, ‘The Role of a Constitutional Court’ (n 1).

^[84] Australian Capital Television (n 39), 135; The Commonwealth v Kreglinger & Gernau Ltd and Bardsley [1926] HCA 8; (1926) 37 CLR 393, 413.

^[85] Stone, ‘The Limits of Constitutional Text and Structure Revisited’ (n 5); Dixon, ‘The Functional Constitution’ (n 5) 464.

^[86] Susan Kenny, ‘The High Court of Australia and Modes of Constitutional Interpretation’ (2007) Federal Judicial Scholarship 10.

^[87] Ibid.

^[88] Irving, ‘Constitutional interpretation’ (n 7), 99.