THE CONSTITUTIONAL DECISIONS OF THEFOUNDINGFATHERS
During the 14th century, Chief Justice Hengham interrupted an argument about the meaning of certain legislation, saying: "Do not gloss the Statute; we understand it better than you do, for we made it"1. This robust judicial attitude to statutory interpretation, from a time that knew little of the separation of powers, is now unfashionable. Indeed, it fell out of favour a long time ago. In 1902, the Lord Chancellor, Lord Halsbury, said that the worst person to construe a statute was the person who was responsible for its drafting. "He is very much disposed to confuse what he intended to do with the effect of the language which in fact has been employed"2. Whatever the nature of the document, be it contract, conveyance, will or Constitution, when there is doubt about its meaning the duty of the court is to construe the text, and it is the meaning of the text that controls the outcome. Drafting history, properly used, may be an aid to discovery of that meaning. Knowledge of facts and circumstances within the contemplation of those who drafted the text may throw light on its purpose and meaning. Law, custom or practice at
the time of drafting might indicate the sense in which a word or phrase has been used. Context is vital to the discovery of textual meaning, and that concept itself should be understood in a broad sense.
In Singh v The Commonwealth3, I explained my views on meaning, intention and purpose as related to constitutional interpretation. I do not intend to repeat what I said there. Rather, I want to develop a particular topic discussed in that judgment. When a doubt is raised about the meaning of some part of the Constitution we may be curious to know what, if any, opinion on the point was held by people who were influential in framing the Constitution. If some such people held a certain opinion, the legal significance of that fact is a matter to be treated with some care. For reasons explained in Singh4, although a knowledge of what was said, in the Convention Debates or on other occasions, by people who participated in drafting the Constitution may throw light on a particular problem of meaning, to find the collective intention of everyone who contributed to its final form would usually be impossible, and the individual intention of any one of them would not be relevant because of itself it would not advance any legitimate process of reasoning about the meaning of the text.
This, I believe, is orthodox. Yet there seems to be an irresistible temptation, widely felt, to seek to test a proposition of constitutional interpretation by asking whether it would come as a surprise to the Founding Fathers.
Many people, not all of them in Australia, played a part in developing the text of the Constitution; and it was approved by the colonial parliaments, the voters in the referendum process, and, ultimately, the United Kingdom Parliament. If the meaning of the Constitution were to be determined by reference to somebody's contemporary understanding of that meaning, whose understanding would be decisive? What reason is there to believe that everybody that mattered, whoever they might be, had the same understanding? Sometimes it is implied that there was a sufficient consensus about certain topics to justify a comfortable assurance that there was a common belief or understanding held in 1900 with which a modern view may be compared; although the legal, as opposed to the rhetorical, purpose of that comparison is rarely explained.
There are difficulties about such comparisons. Doubts often exist about the meaning of any text, including a written Constitution, for the reason that those responsible for the form of the text did not foresee, and deal with, the issue that later arose. They may have had no common intention about a particular point simply because they did not advert to it. Sometimes, in the interest of achieving consensus, the drafters of a legal document, or some of them, although foreseeing a certain difficulty, may choose not to raise it. Questions of meaning may arise at different levels of generality. People who think they have a shared understanding of an agreement at one level may find that, when there later arises a question about a more particular issue, they have no agreement. The parties to a carefully expressed general agreement
might disagree about the application of general words to particular problems. In the case of a Constitution, there is the added factor that it was intended to last for a long time, and to apply in a future which the framers understood they could not foresee. It gives the founders of the Australian Federation little credit for wisdom, or even common sense, to imply that they believed that the future for which they were making provision was one which they could predict. We know that they believed no such thing.One of them,Alfred Deakin, said in 19025:
"[The] Constitution was drawn, and inevitably so, on large and simple lines, and its provisions were embodied in general language, because it was felt to be an instrument not to be altered lightly, and indeed incapable of being readily altered; and, at the same time, was designed to remain in force for more years than any of us can foretell, and to apply under circumstances probably differing most widely from the expectations now cherished by any of us."
In the same speech, he said that "the nation lives, grows and expands. Its circumstances change, its needs alter, and its problems present themselves with new faces"6. The world changes. Consider, for example, the change that has occurred in a matter central to the way governmental power was viewed at the time of Federation: Australia's relations with the United Kingdom. The Founding Fathers regarded themselves as British. For them, there were not merely two sources of power: State and Federal. Imperial authority was an important third source. To ignore that is to distort their vision of political and legal reality. A century ago, and for many years thereafter, Australia's role in the British Empire was fundamental to its security. The Constitution took legal effect under an Act of the United Kingdom Parliament. In the provisions of the Constitution dealing with qualification for membership
of the Australian Parliament there is a reference to persons who are subjects or citizens of a foreign power. In 1999, in a decision to which I was a party, the High Court decided that a citizen of the United Kingdom was a subject or citizen of a foreign power7. I am not aware that the decision generated much legal controversy. Yet, plainly, the same question would have been decided differently 90 years earlier. What follows from that? The meaning of the words "foreign power" did not change over that time. What changed were the international circumstances relevant to the application of that meaning to Australia's relations with the United Kingdom. Would Sir Edmund Barton have been surprised? What does it matter? What does that question mean? When one considers all the events over the 20th century that resulted in the United Kingdom's coming to be, in relation to Australia, a foreign power, it is not useful to enquire whether those events were envisaged or imagined by our first Prime Minister. It is, however, improbable that he believed he could foresee everything that might affect that matter.
There is a further problem about comparisons with the understandings of the framers of the Constitution. Such comparisons assume there was a common understanding. In truth, there were important respects in which their individual understandings of the Constitution were different. My purpose is to demonstrate that proposition by reference to a revealing, and impeccable, source of information: the Commonwealth Law Reports of the early years of Federation. Five of the most influential framers of the Constitution became members of the High Court. In that capacity, it was necessary
for them to make decisions about the meaning of the instrument they had helped to create. They had the responsibility of judgment. Other participants in the drafting process left evidence of their beliefs and understandings in speeches, journals, books, or other commentary. These five, however, had to address, as judges, specific problems and uncertainties about the meaning of text they had helped to formulate, and give definitive answers. They did not enjoy the luxury of doubt, or equivocation. Their duty was to decide. Their performance should disturb any comfortable assumption that the founders all knew what the Constitution meant. Not only did they leave, in the words of Alfred Deakin, "an immense field for exact definition and interpretation"8; not only did they have different ideas about what the instrument meant; they were in disagreement even about basic principles of constitutional interpretation.
In order to set the scene for this analysis, some history should be recorded briefly. Most of the Constitution was the work of two Conventions, one in 1891 and the other in 1897 and 1898. Sir Samuel Griffith, who was at the time the Premier of Queensland, was active in the first, but not the second, Convention. After the first Convention, he was appointed Chief Justice of Queensland, a position he held until 1903, when he became the first Chief Justice of the High Court of Australia. As will appear, his connection with the drafting of the Constitution did not end completely with the first Convention, and continued even after the second. The other two of the first three members of the High Court, Edmund Barton and Richard O'Connor,
were active at both Conventions, as were the next two appointees to the Court, Isaac Isaacs and Henry Bourne Higgins. All five are entitled to be regarded as founders of our Federation.
One of the sensitive issues between the colonial interests and the Imperial Government concerned appeals to the Privy Council from State Supreme Courts and from what the Constitution described as the Federal Supreme Court, to be called the High Court. This topic was dealt with by cl 74 of the draft Constitution that resulted from the second Convention. That was the draft approved by the colonial parliaments and the people. The Imperial Government objected to the clause as drafted. The clause also had opponents in Australia. Sir Samuel Griffith, in his capacity as Lieutenant Governor of Queensland, communicated on the matter directly with the Imperial Government9. This cut across the work of the members of the Australian delegation who had been sent to London to support the Bill as approved in Australia, and who were instructed to resist any changes. The delegation included Edmund Barton. The details of the ultimate compromise between the Imperial Government and the Australian delegates, reflected in s 74 of the Constitution, are not presently material. However, the episode demonstrates the danger of seeking to identify an individual as responsible for the drafting of a text, and then seeking to construe the text according to the subjective intention of that person.
It is convenient at this point to mention a matter of judicial technique. It was the usual practice of each of the five Justices I have named to write separate, individual opinions. That was in contrast to the judgment-writing practice of the early members of the United States Supreme Court, in the time of Chief Justice Marshall. In the Marshall Court, single opinions of the Court were written without any indication of whether the opinion represented a unanimous or a majority view, andwithanydissentientremainingsilent10. In 1822, Thomas Jefferson complained that "nobody knows what opinion any individual member gave in any case, nor even that he who delivered the opinion concurred in it himself"11. We have no such difficulty with the Founding Fathers who became members of the High Court. From their judgments, we know their personal opinions; we know that, in important respects, those opinions were different; and we know that sometimes individually they changed their minds.
The Inter-State Commission One of the greatest obstacles to Federation lay in the conflicting interests of the States in relation to freedom of trade or protectionism. At the 1891 Convention, in which Sir Samuel Griffith participated, there was a general proposal that the Parliament of the Commonwealth might annul any State law or regulation derogating from freedom of inter-State trade. At the second Convention, in which Sir Samuel Griffith did not participate, the Finance Committee put forward a proposal which included the creation of an Inter-State Commission "to execute and
maintain the provisions of this Constitution relating to trade and commerce upon railways within the Commonwealth and upon rivers flowing through, in, or between two or more States"12. Professor La Nauze said:
"It was the most tangled and tedious debate of the Convention, a contest of motions and amendments. The legal ingenuity of Isaacs, Higgins and Barton and the obstinate political shrewdness of Turner and Reid had full scope in an atmosphere more appropriate to the negotiation of a trade treaty than to the framing of a Constitution for a new nation."13 What emerged included s 101 which provided and still provides: "101 There shall be an Inter-State Commission, with such
powers of adjudication and administration as the Parliament
deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder."
Without doubt, the Commission was intended to be an important feature of the federal landscape, exercising large powers and functions in respect of matters central to the agreement that led to Federation14. Its contemplated powers in relation to rivers might have been important today. An Inter-State Commission was established in 1912. In 1915, it intervened in a compulsory acquisition of wheat, destined for inter-state trade, by the State of New South Wales. Its intervention was invalidated by a majority decision of the High Court15, with Griffith CJ and Isaacs J going one way, and Barton J going the other. Its powers of adjudication were declared to be narrow and incidental only to its administrative functions, and its status was so diminished that s 101 became a dead letter. The Chief Justice, who had no part in the Convention debates
about the proposal for the Commission, was dismissive, regarding its assigned powers of adjudication as merely ancillary, and Parliament's attempt to set it up as a court as spurious16. Barton J, on the other hand, referred to "the extremely important functions which the framers of the Constitution declared that this Commission was to exercise"17, and Isaacs J said the case raised "questions of vast importance"18. Those two framers disagreed on a basic point. Barton J said that the Constitution gave Parliament power to set up a body exercising both administrative and judicial functions19. Isaacs J said that was impossible, because of "the fundamental principle of the separation of powers marked out in the Australian Constitution"20. His view is in line with current doctrine, but what is interesting is that Barton J did not accept, or recognise, an aspect of the Constitution that Isaacs J described as "fundamental".