Gretton, Holly --- "2016 Sir Samuel Griffith Essay Prize: Is Originalism a Useful Approach to Constitutional Interpretation in Australia?" [2018] SGSocUphAUCon 16; (2018) 30 Upholding the Australian Constitution 205

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2016 SIR SAMUEL GRIFFITH ESSAY PRIZE

IS ORIGINALISM A USEFUL APPROACH TO CONSTITUTIONAL INTERPRETATION IN AUSTRALIA?

Holly Gretton (Perth)

Constitutional interpretation is determinative of whether legislation is valid or invalid. The outcome of this process has a significant effect on the prevailing attitudes and values that pervade Australian society in 2016 and as such constitutional interpretation cannot be seen to exist in isolation from societal concerns. Originalism, ‘the principle or belief that the original intent of an author should be adhered to in later interpretations of a work’,^[1] has been contended to be a useful approach to interpreting the Constitution^[2] because it provides direction for Judges in making determinations with reference to the framers’ original intentions.^[3]

In contrast, however, there has been growing concern that the ‘framers’ intentions ... with respect to so many questions of interpretation’,^[4]are unknown. Further, the usefulness of an originalist approach has been questioned because many of its critics argue that it does not accord weight to ‘contemporary needs and values’.^[5] In light of some ‘good arguments on both sides’^[6] this paper submits that despite its imperfections, originalism is the most useful approach to Constitutional interpretation in contemporary Australian society.

I The Essence of the Originalist Approach

Notably in Australia since the decision in the Engineers Case,^[7] the constitutional interpretation to be preferred in Australia is to read the law in its ‘natural sense’^[8] or as Michelle Evans puts it, literally.^[9] In essence, the High Court of Australia adopted a ‘literalist legalistic approach’^[10] to Constitutional interpretation rather than an originalist approach.

A mischaracterisation of originalism as literalism is dangerous because it ignores the fundamental protection offered by originalism, which is to provide Australian citizens with ‘the exclusive authority’^[11] under section 128 Commonwealth Constitution^[12] to change its contents, rather than giving that ability to judges as they see fit.^[13] Although the ‘literalist’ approach has prevailed in Australia since Engineers, it is submitted here that originalism is a more suitable interpretation. It is contended originalism is motivated by three principles in Australia ‘democracy, the rule of law and federalism’,^[14] and that such principles are fundamental to Australian contemporary values.

II The Strengths of Originalism

In Australia in 2016 an originalist approach to constitutional interpretation is preferable for two reasons. Firstly, it prevents the judiciary from impeding on the democratic freedom to hold a referendum and secondly it provides the Court with principles to adhere to. Jeffrey Goldsworthy asks, ‘who has the right to decide whether contemporary needs and values have so changed that a constitutional change is desirable?’^[15] The answer is likely that by preferring non-originalism, the High Court would have the power to make decisions guided by their own judgment of contemporary values and government needs.^[16] This paper contends this is undesirable because it would undermine confidence in the Court in a society, which values freedom and accountability to its citizens.

Originalism acts as a safeguard and provides ‘subsequent generations’^[17] with an ‘accepted set of procedures’.^[18] This arguably maintains the legitimacy of the Constitution because it is not undermined with reference to, for example, contemporary issues and trends.^[19] This paper asserts that in line with Mirko Bagaric’s argument, the strength of the Constitution lies in its ability to codify attitudes and beliefs, which are deemed ‘so basic...they should be beyond alteration by transient majorities’.^[20] In those instances where the Constitution need be changed, it is the prerogative of electors to exercise their right pursuant to section 128.^[21] This is essential for the rule of law to be upheld because it prevents ‘lawyers and judges disguising substantive constitutional change as interpretation’.^[22] Prima facie it may seem contradictory that originalism, as a form of interpretation which is formed on the basis of past intention, is useful in a modern context.

This paper submits the very strength of originalism lies in its adherence to the intended meaning of the Constitution, preventing it from being a document so ever-changing it loses any meaning at all.^[23]

III Concerns Surrounding Originalism

Despite its strengths, it is conceded ‘originalism has its faults’^[24] but that even with these flaws it is still preferable to any alternatives. A major issue with originalism is determining how to interpret the Constitution in situations where the framers’ intentions are silent or ambiguous.^[25] This is not confined to constitutional interpretation in Australia; Judge Wilkinson in the United States of America has identified the pitfall that the Constitution ‘does not speak to everything’.^[26] When the framers’ intentions are absent or hard to interpret, difficult cases cannot be ‘satisfactorily resolved’.^[27] In these instances, critics of originalism in particular have ‘apprehension about being locked in’^[28] to an originalist interpretation. This is because without any adaptation to modern considerations the meaning of the Constitution may be absurd or not suitable to its context.

It was submitted above that section 128 of the Constitution provides a means of providing change in cases where it is deemed necessary by the citizens. Critics contend, however, that this does not provide an expedient method of change. It is conceded this may be a valid criticism for ‘hard Constitutional cases’^[29] because Judges cannot ‘decide the issue’^[30]where the framers have not spoken to that issue. The fundamental role of the High Court is to hand down binding authoritative decisions and where these cannot be made the difficulty lies in what kind of interpretation is then to be favoured. For example, in relation to section 80 of the Constitution, ‘it is arguable that the framers never intended its content to be frozen’, however there is no way to determine this for certain. As a result, ambiguity surrounding the term ‘indictment’ in section 80 proved difficult for the Court in Re Colina^[31] and Cheng v The Queen.^[32] In support of Dan Meagher’s argument however, it is asserted ‘what constitutes an indictment is clear enough’^[33] and therefore was not a matter of ambiguity for the Court. It is submitted in cases of ambiguity or absurdity originalism is not the ideal interpretative method in contemporary Australian society, but that the Court must be cautious in determining what is a matter of ambiguity.

IV Alternative: Non-Originalism

A number of approaches to constitutional interpretation have been considered, but at the crux of the argument are two different approaches: one being originalism and ‘the other that modern day values are the appropriate interpretive standard’.^[34] Justice Kirby is arguably the most vocal proponent of the latter, purporting that the Constitution is a living document.^[35]This is supported by Andrew Inglis Clark’s assertion that social conditions of every community produce new government problems to which the Constitution must be applied.^[36]It is not denied that contemporary values are taken into account when judgments are handed down, but interpreting the words of the Constitution in light of them is arguably not the role of the Court. As Goldsworthy asks: ‘who was the right to decide whether contemporary needs and values have so changed that a constitutional change is desirable?’^[37] In saying that, the text set free argument^[38] does seem to be more convincing in situations of ‘hard cases’^[39] because it is able to step in and fill in the blanks left by ambiguity or absurdity.

The major concern with non-originalism is that at its core is the notion of judicial activism and resulting from this, the substantial possibility that judges will ‘exceed their proper role in a democracy’.^[40] The reason that originalism is a more useful approach is because it prevents this specific issue, protecting the very freedom the Constitution was drafted to maintain. The plausibility of the Constitution as a ‘living tree’^[41] is idealistic at best, when in reality what it allows for is the alteration of the Constitution ‘as time goes by, as announced by the judiciary’.^[42] It is contended for these reasons that in most cases non-originalism would hinder rather than aid interpretation in 2016.

V Alternative: Moderate Originalism

It has been conceded that whilst originalism is useful it is imperfect. Attempts have been made to find a middle ground between strict originalism and non-originalism. Justice Kirby describes this as being an interpretative approach where Judges ‘accept those (framers’) intentions as being relevant, not determinative’.^[43] The difficulty with this approach is that it seems to ‘collapse into’^[44] non-originalism because it is likely that any discretion would produce the same result.

Goldsworthy supports moderate originalism following Dworkin who asserts that ‘decisions of political morality’^[45] do not subvert or replace the framers’ intentions, but aim to serve them.^[46] This paper warns that only considering the framers’ intent on an ‘abstract level of generality’^[47] may render that intent irrelevant, and undermine the Constitution’s legitimacy as a result. If anything, Dan Meagher’s assertion that in ‘hard cases’ where originalism cannot be strictly followed, non-originalism may be permitted ‘if applied in a manner that is faithful to the text ... of the Constitution’^[48] is more persuasive than a case of applying a moderate approach at all times.

VI Conclusion

This paper has asserted that originalism is the most useful form of constitutional interpretation in modern Australia because it protects against radical change and uncertainty. Whilst originalism remains imperfect, it is contended that moderate originalism and non-originalism produce undesirable discretion that would result in the undermining of the Constitution and the three principles it serves to protect.

Endnotes

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^[1] Oxford English Dictionary (2016) http://www.oed.com.

^[2] See for example; Mirko Bagaric, ‘Originalism: Why Some Things Should Never Change - Or At Least Not Too Quickly’ [2000] UTasLawRw 7; (2000) 19 University of Tasmania Law Review 173-204.

^[3] See for example; Jeffrey Goldsworthy, ‘Originalism in Constitutional Interpretation’ (1997) 25 Federal Law Review 150.

^[4] Sir Anthony Mason, ‘Constitutional Interpretation: Some Thoughts’ (1997) 20 Adelaide Law Review 54.

^[5] Jeffrey Goldsworthy, ‘Interpreting the Constitution in its Second Century (Centennial Symposium: An Australian Retrospective’ (2000) 24 Melbourne University Law Review 678.

^[6] Ibid.

^[7] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129

^[8] Ibid.

^[9] Michelle Evans, ‘Engineers: the Case that Changed Australian Constitutional History’ (2012) 24 Journal of Constitutional History 65.

^[10] See Mason, above n 4, 50.

^[11] See Goldsworthy, above n 5, 683.

^[12] Commonwealth Constitution s 128.

^[13] See, for example, Bagaric, above n 2.

^[14] See Goldsworthy, above n 5, 683.

^[15] Ibid 684.

^[16] See, for example, James Allan, ‘The Three R’s of Recent Australian Judicial Activism: Roach, Rowe and (No)‘riginalism’ (2012) 36 Melbourne University Law Review 744.

^[17] Goldsworthy, above n 5.

^[18] Ibid.

^[19] See Bagaric, above n 2, 182.

^[20] Ibid 185.

^[21] Commonwealth Constitution s128.

^[22] Goldsworthy, above n 5.

^[23] See, for example, Dan Meagher, ‘New Day Rising? Non-Originalism, Justice Kirby and Section 80 of the Constitution’ (2002) 24 Sydney Law Review 159.

^[24] William J Michael, ‘When Originalism Fails (Constitutional Interpretation Through Original Intent)’ (2004) 25 Whittier Law Review 506.

^[25] Goldsworthy, above n 5, 678.

^[26] Michael, above n 24, 507.

^[27] Meagher, above n 23, 143.

^[28] Mason, above n 4, 49.

^[29] Meagher, above n 23, 161.

^[30] Michael, above n 24, 502.

^[31] Cheng v The Queen [2000] HCA 63 cited in Dan Meagher, ‘New Day Rising? Non-Originalism, Justice Kirby and Section 80 of the Constitution’ (2002) 24 Sydney Law Review 165.

^[32] Re Colina; Ex Parte Tomey [2000] HCA cited in Dan Meagher, ‘New Day Rising? Non-Originalism, Justice Kirby and Section 80 of the Constitution’ (2002) 24 Sydney Law Review 165.

^[33] Meagher, above n 23, 166.

^[34] Bagaric, above n 2, 183.

^[35] Michael Kirby, ‘Constitutional Interpretation and Original Intent: A form of Ancestor Worship?’ (2000) 24 Melbourne University Law Review 114.

^[36] Ibid.

^[37] See Goldsworthy, above n 5, 684.

^[38] Kirby, above n 35.

^[39] See, for example, Meagher, above n 23.

^[40] Allan, above n 16.

^[41] Kirby, above n 356.

^[42] Allan, above n 16, 751.

^[43] Justice Kirby cited in Goldsworthy, above n 5.

^[44] Goldsworthy, above n 5, 679.

^[45] Dworkin cited in Goldsworthy, above n 5.

^[46] See, for example, Andrew Leduc, ‘The Relationship of Constitutional Law to Philosophy: Five Lessons from the Originalism Debate’ (2014) 12 Georgetown Journal of Law & Public Policy 99-156.

^[47] Goldsworthy, above n 5, 697.

^[48] Meagher, above n 23, 142.