A I CLARK AND THE HIGH COURT OF AUSTRALIA
The Hon Justice Michael Kirby*
LIKE BANQUO'S GHOST
The centenary of the coming into force of the Australian
Constitution was celebrated on a sunny day in Sydney on 1 January
2001.
The Governor-General (Sir William Deane) was there in
Centennial Park, Sydney, as had been his predecessor (Lord Hopetoun)
who arrived at the same pavilion to claim his office exactly a century
before. The political leaders of Australia were present, together with
military and naval detachments. A procession that took an hour and a
half to pass a given point, ambled its way through Sydney streets to
arrive at the park.
Politicians and people from every part of the
Commonwealth attended.
A message from the Queen was read.
Speeches were made. The canons fired. Documents were symbolically
signed.
Missing from the ceremony were the Justices of the High Court of
Australia. Save for the Chief Justice, no one had thought to invite them
*
Justice of the High Court of Australia. The author acknowledges the
assistance he received in the preparation of this essay from Mr Tim
Gordon, Senior Research Officer to the Justices of the High Court.
2.
to the celebration. As a citizen, I watched the parade for a time from a
window of the Law Courts building in Sydney. I then returned to work on
the contemporary puzzles presented by the Constitution, as my
predecessors have done since October 1903. Because the High Court,
as the "Federal Supreme Court" of the new Commonwealth1 was not
established until 1903, there was no Chief Justice and there were no
Justices, as such, present in Centennial Park in 1901. However, in all
probability, as founders of the Commonwealth, the first five Justices
were invited in other capacities.
Few persons in the Commonwealth, over the century since the
bunting, songs and parades of 1901 have had such an influence on the
shape and endurance of the Constitution than the forty-two men and one
woman who have been privileged to serve on the High Court of
Australia. This is not a boast. It is a fact. Forty-three in almost a
century is not a great number. I am the fortieth of that number. Perhaps
it is constitutionally happy land that does not notice the absence from
festivities of such a kind of the persons with the largest daily
responsibility for maintaining, defending and applying the document
whose centennial survival was being cheered.
Of all the work that the forty-three have performed, elucidating and
developing the common law and construing statutes ancient and
1
Australian Constitution, s 71.
3.
modern, none has been so important as giving meaning to the
Constitution itself. This is the task that calls forth more than technical
skills and a ready access to reliable dictionaries. It is a task that obliges
those required to respond to have some little knowledge of the nation's
constitutional history, and that of Britain that went before and to have a
learned acquaintance with the writings of their predecessors, and of
scholars, concerning the constitutional text. Almost every word of it has
now been weighed and given meaning. The task calls forth realism and
a political sense about how the Commonwealth, established by the
Constitution, is intended to operate as the political fabric of a united
nation occupying a continent. And it demands a vision of the future of
the nation and of all of its people living under the rule of law upheld,
ultimately, by the Constitution, charter of the indissoluble federal union.
The
task
controversial.
of
constitutional
interpretation
is
inescapably
This is so because the document is written in an
economic style. In some ways, the Australian Constitution presents a
misleading image of the federal polity it establishes.
Its operation
depends substantially on conventions that are observed without question
or much thought. Thus the highest political officer of the land, the Prime
Minister, is not even mentioned. Yet every lawyer knows how his (and
one day her) office is to be filled. Read literally, the Constitution appears
to assign to the Governor-General the powers of a dictator. Yet every
lawyer knows that he (and one day she) must exercise those powers on
the advice of the government that enjoys the confidence of the House of
Representatives. On the face of the document it would seem that our
4.
Commonwealth is a private fiefdom of the Queen. The reality is quite
different. The powers of the monarch, and her representatives, have
diminished in the space of a century.
The powers accorded to the
Federal Parliament have expanded enormously, in harmony with the
needs of the only legislature and government of the nation that can play
an effective part in the contemporary environment of global economics,
international technology and the world's problems.
The federal
Judicature, once so tiny that it comprised only the three founding
Justices of the High Court, has now expanded beyond the imaginings of
most of those who wrote the Constitution.
It is because the interpretation of the Constitution's brief text is so
important that the way the Justices of the High Court go about that task
is absolutely critical. Had they from the start and throughout the past
century, adhered strictly to a construction that fixed the text with the
meaning intended by those founding gentlemen (and they were all
gentlemen) who were at the celebrations in 1901, it is unlikely that there
would have been a centenary celebration. Australia would have been
plagued by an uninterrupted series of constitutional crises.
It would
have been beset by an endless succession of severe practical problems.
A hint of what might have been was given by the recent invalidation of
key provisions of the nation's Corporations Law dealing with the crossvesting of State jurisdiction to federal courts2.
2
Re Wakim; Ex parte McNally (1999) 198 CLR 511 ("Re Wakim"); cf
Gould v Brown (1998) 193 CLR 346. See also Byrnes v The Queen
(1999) 73 ALJR 1291; 164 ALR 520; Bond v The Queen (2000) 74
Footnote continues
5.
Instead, for nearly a century, the High Court of Australia has
construed the Constitution with practical wisdom and, ordinarily, so that
its words are turned to the service of the Australian people in order to
meet (as far as the text permits) their contemporary governmental
needs.
ANDREW INGLIS CLARK AND INTERPRETATION
I like Andrew Inglis Clark. Although a century now separates us, I
feel a certain empathy with him. The document that I spend so many of
my waking hours studying, thinking about and applying, is in a very large
respect an emanation of his creative mind. In Theophanous v Herald
and Weekly Times Limited3, Justice Deane described Clark as the
"primary architect of our Constitution"4. Even those who would contest
this accolade, and give the laurels to another (Barton, Deakin, Griffith or
perhaps someone else), would acknowledge the tremendous importance
of A I Clark's work at the Australasian Federal Convention held in
Sydney in 1891. He was chairman of the Judiciary Committee of that
ALJR 597; 169 ALR 607; R v Hughes (2000) 74 ALJR 802; 171 ALR
155; Residual Assco Group Ltd v Spalvins (2000) 74 ALJR 1013;
173 ALR 366; Australia Securities and Investments Commission v
Edensor Nominees Pty Ltd [2000] HCA 1.
3
(1994) 182 CLR 102.
4
(1994) 182 CLR 102 at 172.
6.
Convention. He served with Samuel Griffith of Queensland and Charles
Kingston of South Australia, as a member of the first drafting committee.
Apart from his vital contributions as one "present at the creation"5,
Clark wrote his influential text Studies in Australian Constitutional Law6
("Studies") at a time when the Constitution was still in a "pristine
condition"7. Like the authors of a competing text, John Quick and Robert
Garran, he was therefore able to look at the new Constitution from the
point of view of principle, concept, history and theory. His mind was not
cluttered as, to some extent, ours inescapably has to be, by judicial
authority, academic discourse, intervening political realities, lawyers'
submissions, modern comparative law and political theory.
As one writer has put it, the "body of judicially developed
constitutional law has now grown so vast and become so integral to our
understanding of the Australian Constitution, that it is difficult to imagine
thinking and writing about the document without the existence of a
stream of decided cases"8. But that is exactly what A I Clark could do.
5
This expression is attributed to King Alfonzo of Castile who thought
he could have given God some hints on the ordering of the
universe, if he had been present at the Creation.
6
A Inglis Clark, Studies in Australian Constitutional Law (Legal
Books, Sydney, 1997) (reprint of first edition 1901) ("Studies").
7
J M Williams, "Introduction to the 1997 Reprint" in Studies at vii.
8
F Wheeler, "Framing an Australian Constitutional Law" (1997) 3
Australian Journal of Legal History 237 at 238.
7.
The published references to his work, and especially in more recent
years since it reprinting, bear witness to the powerful insights that his
mind brought to bear on the constitutional text.
A I Clark brought to his functions, as one of the founders of the
Commonwealth, a deep knowledge (which was shared by others
participating in the Conventions at that time) of the law and practice of
federalism in the United States of America. The influence on his writing
and thinking of American jurisprudence and constitutionalism was
obvious. Of him, Alfred Deakin wrote that the "United States [was] a
country to which in spirit he belonged, whose Constitution he reverenced
and whose great men he idolised"9.
A I Clark was enthusiastic in acknowledging, in Studies, the
influence which he conceived that American law would, and should,
have on Australian constitutional jurisprudence. In the preface to the
second edition, he noted with obvious pleasure the adoption by the High
Court, in some of its earliest cases, of the fundamental principles
propounded by Chief Justice Marshall in the Supreme Court of the
United States in the early days of that Court:
"The High Court of Australia, in the cases of D'Emden v
Pedder10 and Deakin v Webb11, have authoritatively
9
J M Williams, Introduction to Studies at v, quoting from A Deakin,
The Federal Story (1944) at 30.
10
(1904) 1 CLR 91.
8.
declared that the doctrines and principles of federal
constitutional law which were enunciated by the Supreme
Court of the United States in the case of McCulloch v
Maryland12, as those which should govern the interpretation
of the Constitution of that country, are equally applicable to
the interpretation of the Constitution of the Commonwealth
of Australia13".
In the United States Supreme Court14, and in other courts similar
to the High Court of Australia performing the task of interpreting a written
constitution difficult to change, various theories have been propounded
by the judges to guide them in performing their function.
Obviously
enough, stumbling from one case to another with nothing more than
intuition, or passing impression, to resolve contested questions of
meaning is totally unacceptable. It is unworthy of those who have the
high professional responsibility of deciding what a national constitution
means.
There are some lawyers who assert that the only safe meaning to
be given to the constitutional text is that which is discovered by a
rigorous search for the actual intentions that the writers of the document
had when they put its words on paper15. To those who hold to this
11
(1904) 1 CLR 585.
12
4 Wheat. (17 US) 316 (1819).
13
Studies (2nd ed, 1905).
14
See M D Kirby, "Ancestor Worship?" (2000) 24 Melbourne
University Law Review 1.
15
A good illustration is Dred Scott v Sandford 19 How (60 US) 393 at
407-409 (1857), a decision which rejected 7:2 the challenge to the
lawfulness under United States' law of Scott's status as a slave.
9.
"originalist" theory of construction, in its purest form, any other approach
lacks an objective starting point. It will bend and twist the text to the
meaning which those with the power to give an authoritative
construction, choose to impose upon it.
To the "originalists", that is
intolerable. It is a power that should be denied by searching for the only
safe harbour. In the case of the Australian Constitution, that means
ascertaining the meaning which the words of the document were thought
to bear in 1900, when it was finally adopted by the Australian people,
and given effect by the passage of an Act of the Imperial Parliament.
Other writers, who probably represent the view that has prevailed
in the High Court of Australia for most of the century, constitute the
"qualified originalists"16. They acknowledge that the meaning of words
can change over time. But they insist that the starting point for the
search for meaning is the ascertainment of what the words were taken to
mean in 1900.
Especially in the case of words of technical legal
meaning, they demand that "contemporary" constructions should not
stray far from this source. To do so is to run the risk of substituting
judicial opinions for the mandate of the text, which can only be altered by
the electors of the Commonwealth17.
Those of this view draw a
distinction between the "connotation" of words and their "denotation".
They hypothesise, for example, that a word, like "marriage" included in
16
This is the opinion of McHugh J. See Re Wakim (1999) 198 CLR
511 at 551 [40].
17
Pursuant to s 128 of the Constitution.
10.
the Constitution18, although undoubtedly in 1900 being confined to the
union of a man and woman for life to the exclusion of all others, could
today be large enough, in its denotation, to extend the federal lawmaking
power to a permanent union of persons, irrespective of their sex19.
But there is a third view. It is the one which A I Clark embraced.
It was stated in 1901. It was quoted at length by Justice Deane in his
opinion in the Theophanous Case20. It is critical to an understanding of
the approach which Justice Deane took to many cases, often in dissent.
This is what A I Clark wrote, as cited by Justice Deane:
"The Constitution was not made to serve a temporary and
restricted purpose, but was framed and adopted as a
permanent and comprehensive code of law, by which the
exercise of the governmental powers conferred by it should
be regulated as long as the institutions which it created to
exercise the powers should exist. But the social conditions
and the political exigencies of the succeeding generations of
every civilised and progressive community will inevitably
produce new governmental problems to which the language
of the Constitution must be applied, and hence it must be
read and construed, not as containing a declaration of the
will and intentions of men long since dead, and who cannot
have anticipated the problems that would arise for solution
by future generations, but as declaring the will and intentions
of the present inheritors and successors of sovereign power,
who maintain the Constitution and have the power to alter it,
and who are in the immediate presence of the problems to
be solved. It is they who enforce the provisions of the
18
Australian Constitution, s 51(xxi).
19
This was suggested by McHugh J: Re Wakim (1999) 198 CLR 511
at 553 [45].
20
(1994) 182 CLR 104 at 171-172 citing Studies, pp 21-22.
11.
Constitution and make a living force of that which would
otherwise be a silent and lifeless document".
So long as the Australian Constitution was viewed as no more, in
effect, than a schedule to an Act of the United Kingdom Parliament
which first brought it into force, it was probably natural that the Justices
of the High Court should approach its construction in the way in which
judges of the United Kingdom interpreted the Acts of their own
Parliament. That approach laid great emphasis on the meaning of the
words under the microscope. It tended to discourage the consideration
of history and philosophy, to exclude contemporaneous sources and to
disdain speculation on such matters as political and governmental
theory. So long as the decisions of the High Court of Australia, including
some on constitutional questions well into the 1970s, were capable of
being taken on appeal to the Privy Council in London21, it was inevitable
that many of the Justices of the High Court should be influenced by the
approach to interpretation of a statute observed by the English judiciary,
operating in a wholly different constitutional setting.
Yet, in the space of the twentieth century, many leading Australian
judges came to accept, wholly or in part, the approach to the nation's
Constitution which A I Clark had urged, viewing that document as a
21
The only constitutional questions which were excluded from the
jurisdiction of the Privy Council were "inter se" questions: Australian
Constitution, s 74. Even then, the High Court could certify that a
party might appeal to the Privy Council. Such a certificate was only
given once: Colonial Sugar Refining Co Ltd v Attorney-General
(1912) 15 CLR 182. Thereafter, it was refused many times.
12.
"living force". In Bonser v La Macchia22, Justice Windeyer, one of the
greatest of the forty-three, demanded that realism enter the function of
constitutional interpretation:
"The Commonwealth of Australia has, I consider, now
succeeded to the Imperial rights and interests ... That is
because Australia has grown into nationhood. With the
march of history the Australian colonies are now the
Australian nation. The words of the Constitution must be
read with that in mind and to meet, as they arise, the
national needs of the 'one indissoluble Federal
Commonwealth' under the Crown. The law has followed the
facts. ... The Commonwealth has become, by international
recognition, a sovereign nation, competent to exercise rights
that by the law of nations are appurtenant to, or attributes of,
sovereignty".
It will be observed that A I Clark's theory of constitutional
interpretation is founded, at its base, in his conception that the people of
Australia are the fundamental source of the legitimacy of all legal power,
including that deployed by the Constitution.
It cannot be said too
strongly that this was an heretical view in 1901, when it was
propounded. At that time, and for long after, the fundamental basis for
the Australian Constitution was viewed by most Australian judges and
lawyers as the fact that it had been enacted into law with the authority of
the Imperial Parliament. That was a legislature with world-wide powers
of lawmaking, whose writ was effective throughout the British Empire.
22
(1969) 122 CLR 177 at 223-224. See also R v Commonwealth
Conciliation and Arbitration Commission; Ex parte Professional
Engineers' Association (1959) 107 CLR 208 at 267; Victoria v The
Commonwealth (the Payroll Tax Case) (1971) 122 CLR 353 at 396397.
13.
Possibly because of his admiration for American ideas, or perhaps
because of his (probably connected) republican instincts, A I Clark
challenged this theory of the Australian legal Grundnorm23. He did so
explicitly in the passage from his text which I have cited.
Clark's
challenge was not based on arguments of political theory or republican
conviction. Instead, he founded his thesis, as a lawyer should, on the
text of the document that he had before him. If the only people who
could alter the text of that document were "the electors" of the
Commonwealth, whose vote at referendum was needed for that
purpose, in addition to that of the national Parliament, it was the
"authentic expression of the will of the people"24, comprising those
electors, that represented the true and ultimate legal basis of the
authority of the Constitution.
In 1983, Justice Murphy, like A I Clark ahead of his time,
embraced this idea. He did so long before others did. Writing in the
Tasmanian Dams Case Lionel Murphy observed25:
"The federal judiciary will at all times be guided by the
fundamental rule, the constant observance of which is the
foundation of public confidence in its decisions affecting its
23
M D Kirby, "Deakin: Popular Sovereignty and the True Foundation
of the Australian Constitution" (1996) 3 Deakin Law Review 129.
24
Studies (1901) at 33.
25
The Commonwealth v Tasmania (1983) 158 CLR 1 at 161.
14.
own position of the Constitution, and which requires that the
validity of any apparent exercise of legislative authority
which has been promulgated in proper form is always to be
presumed until the alleged law is clearly demonstrated to be
in excess of the contents of the legislative power conferred
by the Constitution, and if at any time the question is a
doubtful one, the decision must be in favour of the validity of
the impugned law".26
Some might consider this approach to constitutional interpretation
controversial, at least where it conflicts with other rules. One such other
rule is that which defends the liberties of the individual from legal
restriction without clear words and (in an Australian constitutional text)
clear constitutional authority27. But in so far as A I Clark and L K Murphy
were stating the proposition that it is a serious thing to invalidate laws on
constitutional grounds, that it commonly causes a great deal of
disruption and inconvenience (and not a little injustice to individual
parties) and should be minimised to the full extent that techniques of
severance and alternative construction allow, their words find reflection
in many decisions of the High Court of Australia over the century past.
Recently, in Residual Assco Group Limited v Spalvins28 the High Court
said:
26
A I Clark, Studies (1901) at 33; cf University of Wollongong v
Metwally (1984) 158 CLR 447 at 476-477; Nationwide News Pty
Ltd v Wills (1992) 177 CLR 1 at 72; Australian Capital Television Pty
Ltd v The Commonwealth (1992) 177 CLR 106 at 137.
27
Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 417-419
[166]-[167].
28
(2000) 74 ALJR 1013 at 1020 [28]; 173 ALR 366 at 374.
15.
"Courts in a federation should approach issues of statutory
construction on the basis that it is a fundamental rule of
construction that the legislatures of the federation intend to
enact legislation that is valid and not legislation that is
invalid".
In Sue v Hill29, the High Court was faced with the kind of problem
that called forth an approach to interpretation of the Constitution for
which Clark's "living force" theory was highly pertinent. A candidate had
been elected to the Australian Senate who was a citizen of the United
Kingdom. Section 44(i) of the Constitution provided that any person who
is "a subject or citizen ... of a foreign power ... shall be incapable of
being chosen or of sitting as a Senator". At the time of the adoption of
the Australian Constitution in 1900, there can be little doubt that a
subject of the Crown (an expression used in s 117 of the Constitution)
would not have been regarded as a "citizen of a foreign power". If a
1900 criterion were applied strictly to the constitutional text, there would
be no invalidating allegiance. In such a case, a subject of the British
Crown could certainly serve in the Australian Senate. Indeed all who did
so serve in 1901 were British subjects.
Because the approach which I took to another aspect of the case,
it became unnecessary for me to resolve the controversy that I have
mentioned. However, a majority of the Court held that a person who
was a citizen of the United Kingdom was "a citizen of a foreign power" 30.
29
(1999) 199 CLR 463.
30
Per Gleeson CJ, Gaudron, Gummow and Hayne JJ.
16.
A I Clark's text was mentioned by the majority in a footnote to their
reasons31.
It was pointed out32 that the theory that accepts an
ambulatory construction of the constitutional language was not invented
by Justice Windeyer (or, by inference, even by A I Clark). It had been
propounded as early as 1816 in the United States by Justice Story when
he said of the United States Constitution33:
"The instrument was not intended to provide merely for the
exigencies of a few years, but was to endure through a long
lapse of ages, the events of which were locked up in the
inscrutable purposes of Providence".
Every now and again, in the reasons of today's High Court
Justices, there are differences about the meaning of the Constitution.
Naturally enough, these sometimes reflect differences concerning the
proper approach to its construction.
Occasionally, such differences
represent alternative views concerning the extent to which the Court
should be concerned with, and feel itself influenced by, the thinking and
expectations of the founders, or of judges and lawyers or others, in 1900
or the decade earlier during which the Australian Constitution gradually
emerged.
31
(1999) 199 CLR 462 at 488, fn 82.
32
Baxter v Commissioner of Taxation (NSW) (1907) 4 CLR 1087 at
1105 per Griffith CJ.
33
Martin v Hunter's Lessee (1816) 1 Wheat. 304 at 326 (14 US 141 at
155).
17.
This debate is an ongoing one34. Instances of it can be found in a
number of recent decisions35. In my reasoning, I have left no doubt as
to where I stand. I stand with A I Clark, Windeyer, Murphy and Deane. I
stand with the proposition that the Australian Constitution is a living
document whose meaning must necessarily vary with the ages and be
ascertained, from time to time, by those who are trusted by the
Constitution itself with its authoritative exposition.
My stance is not that of a reluctant originalist, or of an originalist at
all. People can agree and disagree; that is their privilege. But over a
series of cases I have attempted to expound a single approach which
rejects originalism, pure or reluctant, and embraces as the true doctrine
the authentic approach to the task which A I Clark expressed in 190136:
"In my respectful opinion, it is to misconceive the role of this
Court in constitutional elaboration to regard its function as
being that of divining the meaning of the language of the text
34
M D Kirby, "Constitutional Interpretation and Original Intent: A Form
of Ancestor Worship " (2000) 24 Melbourne University Law Review
1.
35
Re Wakim (1999) 198 CLR 511 at 599-600 [186]-[187]; Grain Pool
(WA) v The Commonwealth (2000) 74 ALJR 648 at 669 [111]-[113];
Eastman v The Queen (2000) 74 ALJR 915 at 958 [242]-[245]; 172
ALR 39 at 96-99 [242]-[249]; Re Colina; Ex parte Torney (1999) 73
ALJR 1576 at 1597 [96]; 166 ALR 545 at 574; Abebe v The
Commonwealth (1999) 197 CLR 510 at 581 [203]; Kartinyeri v The
Commonwealth (1998) 195 CLR 337 at 400-401 [132]; Crampton v
The Queen [2000] HCA 60 [113]-[121]; Ex parte Aala; Re Refugee
Review Tribunal [2000] HCA 57 [136]-[143].
36
Eastman v The Queen (2000) 74 ALJR 915 at 958 [282]. Footnotes
deleted.
18.
in 1900, whether as understood by the founders, the British
Parliament, or ordinary Australians of that time.
That a different approach would be necessary for the
construction of the Constitution was recognised as early as
1901 by one of the founders, Andrew Inglis Clark. He
declared, at the outset of the new Commonwealth ... the
'living force' of the Constitution which otherwise would be a
'silent and lifeless document'. Words in a constitutional
setting inevitably take colour from the social circumstances
in which they must be understood and applied. ... In my
opinion, the Constitution is to be read according to
contemporary understandings of its meanings to meet, as far
as the text allows, the governmental needs of the Australian
people".
In another case, I suggested that it was "fundamentally erroneous"
to approach the construction of the Constitution "as if the task of the
Court were to give effect to the opinions, expectations, beliefs and hopes
of the founders of the Commonwealth"37:
"Once adopted, the Constitution assumed a function as the
fundamental law of a federal nation: one amongst the
community of nations. The text was then set free from the
'intentions' of its draftsmen. It must be construed by
contemporary Australians.
Necessarily, they read its
language with the eyes of their generation expecting it to
fulfil (so far as the words and structure permit) the rapidly
changing needs of the times. Occasionally it will be held
that the language or structure of the Constitution do not
permit it to meet those perceived needs. But for nearly a
century the Constitution has met the requirements of
government in Australia by reason, in part, of a willingness
of this Court to avoid unnecessarily narrow or rigid
interpretations".
37
Re Colina; Ex parte Torney (2000) 73 ALJR 1576 at 1597 [96].
Footnotes deleted.
19.
The description of the proper approach to interpretation of the
Constitution, written by A I Clark a century ago, therefore continues to
influence my reasoning and my conclusions - as it has other Justices
who went before and as (I am sure) it will influence an increasing
number of those who come after. As the years and decades pass, any
other approach to the interpretation of the Constitution will seem
unthinkable. Its formal rigidities have only survived a century of change
because of the capacity and willingness of the Justices (whatever
techniques they may have used and views they may have propounded
about the theory of interpretation) to view the Constitution as a "living
force". It is difficult to overstate the significance of A I Clark's opinion in
this respect. Since his "rediscovery"38 by Justices Murphy and Deane,
his influence has expanded.
Rightly, it will continue to do so.
JM
Williams has noted the irony inherent in the twists of legal reasoning by
which the words of a man "long since dead" have now been unveiled to
us to endorse the interpretation of the Constitution as a "living force" for
the people of the present Australia39.
38
F Wheeler, "Framing an Australian Constitutional Law" (1997) 3
Australian Journal of Legal History 237 at 247.
39
J M Williams, "With Eyes Open: Andrew Inglis Clark and our
Republican Tradition" (1995) 23 Federal Law Review 149 at 179.
20.
THE CONSTITUTIONAL SEPARATION OF POWERS
A I Clark was a strong proponent of the need to ensure the
absolute independence of the Judicature established by the Constitution,
free from the influence and pressure of the other branches of
government. In this too, he was greatly affected by the jurisprudence
concerning Article III of the United States Constitution. In his text, he
warned40:
"[A]ny attempt on the part of the Parliament or the Crown to
exercise functions which are essentially and distinctly judicial
must be invalid as any attempt to legislate upon a matter
clearly outside the legislative power conferred on the
Parliament by the Constitution".
In 1956, in the Boilermakers' Case41, Chief Justice Dixon and
Justices McTiernan, Fullagar and Kitto embraced this reasoning.
Striking down the attempted mixture of what they found, in the
Commonwealth Court of Conciliation and Arbitration, to be the conjoined
judicial and legislative powers of the Commonwealth, they asserted that
such a combination was impossible. It was "hardly consistent with the
form and contents of Chaps I, II and III to assign no legal consequence
to the division"42. In support of their proposition those judges invoked
40
A I Clark, Studies (1901) at 37.
41
(1956) 94 CLR 254 at 276.
42
The Queen v Kirby ; Ex parte Boilermakers' Society of Australia
(1956) 94 CLR 254.
21.
the "contemporary view" of one who, they said, was "entitled to speak
with authority"43, namely A I Clark. After exploring at length paragraphs
from Clark's text and also William Harrison Moore's The Constitution of
the Commonwealth of Australia, they concluded that Ch III of the
Constitution confirmed the inference that:
"Courts established by or under its provisions have for their
exclusive purpose the performance of judicial functions and
that it is not within the legislative power to impose or confer
upon them duties or authorities of another order"44.
In recent years, the High Court of Australia has been insistent on
defending not only the federal Judicature45 and its personnel46 but also
State courts47 from attempted incursions upon their judicial functions and
essential independence.
In Polyukhovich v The Commonwealth48, a
case concerning federal legislation about war crimes, Justice Deane
cited A I Clark's view that the adoption of the doctrine of separation of
the judicial from legislative and executive powers in the Constitution,
necessarily imposed significant limitations on the powers of the Federal
43
(1956) 94 CLR 254 at 276.
44
(1956) 94 CLR 254 at 278.
45
The decision Re Wakim (above) is justified by this reasoning.
46
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs
(1997) 189 CLR 1.
47
Kable v Director of Public Prosecutions (NSW) (1997) 189 CLR 51.
48
(1991) 172 CLR 501.
22.
Parliament49. He pointed to a paragraph from Clark's text, opposite the
marginal note "The distribution of governmental powers implies a
limitation on the power of Parliament". At that point, A I Clark confirmed,
as applicable to Australian constitutional law, the "underlying principle of
the decisions of the American courts" that "to declare what the law is or
has been is a judicial power; to declare what the law shall be is
legislative"50.
Justice Deane concluded that "Inglis Clark's apparent
acceptance of the 'underlying principle' referred to in the last sentence
as applicable to our Constitution, would preclude the enactment of an ex
post facto criminal law"51.
In Polyukhovich Justice Deane was in dissent. But one of the
majority, Justice McHugh, also called on A I Clark's ideas to support his
propositions52. Each Justice acknowledged the strong and persuasive
force of A I Clark's reasoning about the separation of powers doctrine.
Whilst different conclusions were drawn by them in the particular case,
each accepted the correctness of the basic thesis. Especially since the
Boilermakers' Case in 1956, it is a thesis that has influenced the shape
of the Judicature of the Australian Commonwealth. At its core is the
central idea that, to be fully independent, the judiciary and its members
49
(1991) 172 CLR 501 at 618-619.
50
A I Clark, Studies (1901) at 40-41 citing Dash v Van Kleek 7 Johns
477.
51
Polyhukovich (1991) 172 CLR 501 at 619.
52
See (1991) 172 CLR 501 at 720-721 per McHugh J.
23.
must be separate from, and kept free of the influence and pressure of,
the political branches of government, federal, Territory and State.
A COMMON LAW OF AUSTRALIA?
In the early years of the Commonwealth, there was much
speculation upon another matter which had engaged commentators in
the United States. This was whether there existed a "federal common
law". In his text, A I Clark had written that "except in relation to the
executive powers of the Crown, it is submitted that there cannot be any
federal common law in Australia and that the federal courts of the
Commonwealth will not possess any jurisdiction under the common
law"53.
In his opinion in Lipohar v The Queen54, Justice Callinan cited A I
Clark's view to cast doubt on the proposition, now commonly accepted,
that there is a single common law of Australia, uniform throughout the
nation. In particular, Justice Callinan cited a passage from A I Clark's
work where he stated that: "In cases arising solely under the laws of a
State ... the High Court, in the exercise of that appellate jurisdiction, will
apply the rules and doctrines of the common law. Its relation to the
common law will not be any different from the relation of the House of
53
A I Clark, Studies (1901) at 192.
54
(1999) 74 ALJR 282 at 332; 168 ALR 8 at 77 [245].
24.
Lords to the civil law"55. In this respect, Justice Callinan favoured the
opinion of A I Clark over that of Quick and Garran56.
In the United States, the view propounded by A I Clark has
prevailed.
The Supreme Court of that country in Erie Railroad Co v
Tompkins57 overturned the decision with which A I Clark would have
been familiar, Swift v Tyson58. In Erie, Justice Brandeis declared that in
the United States "[t]here is no federal common law"59.
There is an important distinction between the constitutional
arrangements of the United States and Australia which A I Clark may
have underestimated. It is a difference which explains the Australian
embrace of a notion that there is but one common law applicable
throughout the nation. The point of difference is that, in Australia, the
High Court is (now) the sole, ultimate judicial body that declares the
common law to be observed throughout Australia. The Supreme Court
of the United States does not enjoy that function or power. In Australia,
under the Constitution, there can, ultimately be no differences between
State expositions of the common law. Although temporary divergencies
55
A I Clark, Studies (1901) at 192.
56
(1999) 74 ALJR 282 at 332; 168 ALR 8 at 77 [245].
57
304 US 64 (1938).
58
41 US 1 (1842).
59
304 US 64 (1938) at 78.
25.
of opinion about its content may arise from time to time, the position and
authority of the High Court is there to remove disparities and to declare
the single true common law doctrine60.
MISCELLANEOUS OPINIONS
On various other opinions which he expressed, A I Clark's views
have not always found favour. He was, for example, a strong adherent
to the doctrine of implied immunities, protective of the constitutional
rights of the States. This was a doctrine accepted in the early decisions
of the High Court, as in D'emden v Pedder61.
It was, however,
"exploded" in 1920 by the decision in the Engineers' Case62, when the
centralising doctrine of Justice Isaacs' views gained paramountcy.
Similarly, in his text, A I Clark envisaged a great future for the
Interstate Commission provided for in s 101 of the Constitution.
Nowadays, this only appears of historical significance. Apart from a brief
revival in 1983, the Commission has, effectively, been defunct since
192063. On the other hand, some recent popular writing has described
60
John Pfeiffer Pty Ltd v Rogerson (2000) 74 ALJR 1109 at 1112,
1132 [13]-[14], [124]; 172 ALR 625 at 630.
61
(1904) 1 CLR 91.
62
Amalgamated Society of Engineers v Adelaide Steamship Company
Ltd (1920) 28 CLR 129.
63
J M Williams, "Introduction to the 1997 Reprint" in A I Clark, Studies
at xx-xxiii.
26.
the large extension of the powers of the Federal Parliament that followed
the 1920 decision in the Engineers' Case as "long coup d'état" of the
High Court64. The author of that provocative view has even suggested
revival reconsideration of the Interstate Commission as an antidote. It is
possible, but not likely, that A I Clark's views on these subjects will one
day, again, prove influential.
A I Clark's opinions on the constitutionality of the Crown
appointing Royal Commissions to investigate whether an individual
offence has occurred65 was relied upon by Justice Stephen in Victoria v
Australian Building Construction Employees' and Builders Labourers'
Federation66 to support the proposition that there had been a
"succession of commissions to enquire into the circumstances attending
alleged or supposed crimes ... appointed in England under the
immediate advice and approval of some of the most eminent Lord
Chancellors and judges who have sat upon the Bench in that country" 67.
However, that view must now be read as subject to later decisions of the
High Court defensive of the independence and authority of the
Judicature. The latter is a view which itself has grown from a central
64
P McGuinness, "Federation - One Hundred Years and More",
Quadrant, July 2001, 2.
65
A I Clark, Studies (1901) at 241. See (1982) 152 CLR 25 at 69.
66
(1982) 152 CLR 25.
67
A I Clark, Studies (1901) at 241.
27.
thesis of A I Clark's concept of the independent Judicature of courts
throughout the Commonwealth.
Scattered throughout the pages of the Commonwealth Law
Reports are numerous tributes to, and acknowledgments of, A I Clark68.
In some respects, he was prophetic, seeing the future in a way that
could not reasonably have been anticipated in 1891 when he wrote his
first draft of the constitutional text. His conception of the "sovereignty of
the people" of Australia is obviously one such instance.
So is his
prediction that the High Court of Australia would, and should, be the sole
ultimate court of appeal of the Australian judicial system. Of this he said:
"The larger experience in the constitutional law of the
Australian Commonwealth will be obtained by Australian
lawyers, and the experts and masters in it will be found
among them"69.
Accurately, A I Clark foresaw the gradual process of Australian
independence from the British judiciary in the Privy Council. This was to
be accomplished over time by a succession of federal Acts, culminating
in the Australia Act 1986 (Cth) which finally, with its counterparts, ended
68
See eg Bank of New South Wales v The Commonwealth (1948) 76
CLR 1 at 366 per Dixon J; McGinty v Western Australia (1996) 186
CLR 140 at 274 per Gummow J and Brevington v Godelman (1987)
169 CLR 41 at 133 per Deane J. See also Sue v Hill (1999) 199
CLR 462 at 497-498 [83].
69
A I Clark, Studies (1901) at 241.
28.
appeals to the Privy Council70. It was for this and other reasons that A I
Clark was described by Chief Justice Brennan as a "man ahead of his
time"71. That he surely was.
Over the years, the influence of A I Clark's writing, on the work of
the High Court of Australia has waxed and waned. But now, I believe, it
is a force to be reckoned with. Increasingly, we will look back to his
fresh thinking and perceptive insights. He never took a seat on the High
Court Bench. He was appointed to judicial office in the Supreme Court
of Tasmania, his home State.
It has been said that his name was
considered for the High Court and that, but for fate, he might have been
one of the forty-three. Certainly, he is one of the lesser known founders
whose work towards the birth of our Commonwealth is not fully
appreciated.
Quite possibly, A I Clark was not invited to the inauguration in
1901 of the Constitution to which he had contributed so much. I can find
no record that he was in the Centennial Park, Sydney on that important
day. Yet, in the big picture of our Federation, that matters not. Many
who were there are entirely forgotten. But Clark's was a pen that crafted
the first draft of the Constitution.
His was one of the minds that
70
See also Privy Council (Limitation of Appeals) Act 1968 (Cth); Privy
Council (Appeals from the High Court) Act 1975 (Cth).
71
F G Brennan, Foreword to Hayward and Warden (eds), An
Australian Democrat: The Life, Work and Consequences of Andrew
Inglis Clark (1995) at ix.
29.
influenced its ultimate shape. His was one of the most influential of the
intellects that explained the new document, identified its leading themes
and predicted its chief directions. In constitutional law, more than most,
it is those who keep their eye on the great themes and see across the
horizon that have a lasting influence.
The law requires that its practitioners, especially its judges, live
with history. Constitutional law requires of those who are engaged in it
that they live with the product of the labours of those who wrote the
document and all the elaborations of its text that followed. Although the
task of those who interpret the document, long after, is not, as such, to
get into the heads of the drafters and to find what they intended, it is
inevitable that their handiwork and thinking should reflect something of
the values, aspirations and priorities of those who chose the words. This
is why, in the centenary year of federation, Australians are reflecting as
never before on the framers of the Constitution. Andrew Inglis Clark is
by no means one of the most famous of these. Yet his life is interesting.
His values are remarkably enduring. And his influence is increasingly
strong72.
72
For other recent writings on A I Clark, see John Williams, "Andrew
Inglis Clark: The Republican of Tasmania" In D Headon and
J Williams, Makers of Miracles - The Cast of the Federation Story,
MUP, 2000 at 44; and R Ely, "Andrew Inglis Clark on the Preamble
of the Australian Constitution" (2001) 75 ALJ 36.
A I CLARK AND THE HIGH COURT OF AUSTRALIA
The Hon Justice Michael Kirby