¹ AG (Cth); ex rel McKinlay v Commonwealth (1975) 135 CLR 1 at 44 per Gibbs J.

² Just who these people should be taken to have been-those who drafted and debated the Constitution in Constitutional Conventions, the voters who approved it in referendums, the members of the Imperial Parliament who enacted it-is discussed in Part 5, below.

³ (1996) 186 CLR 140.

⁴ (1993) 177 CLR 541.

⁵ (1996) 186 CLR 302.

⁶ (1996) 186 CLR 140 at 165-166 per Brennan J for the statistics.

⁷ Ibid at 175.

⁸ Whether the Constitution does implicitly guarantee representative democracy will be not be discussed here. The four members of the majority seem to deny that “representative democracy” is contained in the Constitution as a principle in its own right: ibid at 168-171 per Brennan CJ, at 182-183 and at 188 per Dawson J, at 232-236 per McHugh J, and (less explicitly) at 284-286 and 291 per Gummow J.

⁹ Cheatle v R (1993) 177 CLR 541 at 560-561.

¹⁰ Ibid at 560, quoted in full in the text ton 212, below.

¹¹ (1996) 186 CLR 140 at 200.

¹² Ibid at 200 and 201.

¹³ Ibid at 221.

¹⁴ See in particular Polyukhovich v Commonwealth (1991) 172 CLR 501 and Leeth v Commonwealth (1992) 174 CLR 455, as well as cases on the implied freedom of political speech.

¹⁵ McGinty's case (1996) 186 CLR 140 at 286-287 per Gummow J, and at 166-167 per Brennan CJ, and Langer v Commonwealth (1996) 186 CLR 302 at 342 per McHugh J.

¹⁶ Section 41 is no longer regarded as having any practical operation: R v Pearson; Ex parte Sipka (1983) 152 CLR 254.

¹⁷ Attorney-General (Cth); ex rel McKinlay v Commonwealth (1975) 135 CLR 1 at 19, 44, 56-57 and 62 per Barwick CJ,Gibbs,Stephen and Mason JJ respectively. McTiernan and Jacobs JJ, and Murphy J, disagreed: ibid at 36 and 69 respectively.

¹⁸ McGinty's case (1996) 186 CLR 140 at 286-287.

¹⁹ (1996) 186 CLR 302 at 342.

²⁰ (1996) 186 CLR 140 at 166-167.

²¹ Ibid at 183; see also Australian Capital Television Pty Ltd v Commonwealth [No 2] (1992) 177 CLR 106 at 188.

²² Cheatle v R (1993) 177 CLR 541 at 561.

²³ McGinty's case (1996) 186 CLR 140 at 201 and 222.

²⁴ Ibid at 245-250.

²⁵ Ibid at 230.

²⁶ Ibid at 239.

²⁷ Ibid at 245.

²⁸ Ibid.

²⁹ I also have difficulty understanding some of McHugh J's remarks in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104. He denied that “the actual intentions of the makers control the meaning of the Constitution” and said that ,"The meaning that the Constitution has for the present generation is not necessarily the same meaning that it had for earlier generations or for those who drafted or enacted the Constitution”: ibid at 197. But he then added that “each generation must read the provisions of the Constitution in their context and that includes the historical context of the Constitution” (ibid), argued that a general theory or principle can legitimately be used in interpreting the Constitution “only when there are grounds for concluding that the meaning of the constitutional provision was intended to be understood by reference to [it]”, grounds which can “arise from what was said and done at the Conventions leading up to the enactment of the Constitution” (ibid at 198), and later relied heavily on what “the makers of the Constitution probably had in

mind” (ibid at 200-201). “[T]he makers of the Constitution did not intend, and the Constitution does not give effect, to any general doctrine of representative democracy. No doubt ... the makers of the Constitution trusted the Parliament to protect representative democracy”: ibid at 201.

³⁰ McGinty's case (1996) 186 CLR 140 at 279.

³¹ Ibid.

³² Ibid at 280-281 (emphasis added).

³³ Ibid at 284 (emphasis added).

³⁴ Ibid at 283.

³⁵ Ibid at 286-287.

³⁶ As Justice Antonin Scalia puts it, “[N]ote the wide eyed, youthful meliorism in this sentiment: Every day, in every way, we get better and better. Societies always mature, they never rot”: “The Role of a Constitutional Court in a Democratic Society” (1995) 2 The Judicial Review 141 at 145.

³⁷ Brennan CJ did not discuss whether or not the Constitution today guarantees the equality principle for the purpose of Commonwealth elections: McGinty's case (1996) 186 CLR 140 at 175. He may have thought that this was just as arguable as the proposition that it guarantees full adultsuffrage. But this possibility does not affect the point made in the text.

³⁸ Ibid at 178.

³⁹ Ibid.

⁴⁰ For an enquiry into the nature of social facts, see J Searle, The Construction of Social Reality (1995).

⁴¹ P P Maxwell, On the Interpretation of Statutes (1875) at 1, and Attorney-General v Carlton Bank [1899] 2 QB 158 at 164 per Lord Russell.

⁴² Sussex Peerage Case (1844) 8 ER 1034 at 1057 per TindallCJ; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 161.

⁴³ Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297 at 320 per Mason and Wilson JJ.

⁴⁴ P P Maxwell, above n 41 at 1; Halsbury's Laws of England (4th ed) Vol 44 at para 522; F Bennion, The Interpretation of Statutes (2nd ed 1992) at 345-347; P Langan, Maxwell on the Interpretation of Statutes (12th ed 1969) at 28; H Black, Handbook on the Construction and Interpretation of the Laws (1896) at 35ff; Norman J Singer, Sutherland Statutory Construction (5th ed 1992) Vol 2A, 22-23; E Driedger, Construction of Statutes (2nd ed 1983) at 105-106; P-A Cote, The Interpretation of Legislation in Canada (2nd ed 1991) at 4-5.

⁴⁵ SB Chrimes, English Constitutional Ideas in the Fifteenth Century (1966 reprint) at 294.

⁴⁶ Most of these authorities are cited in R Berger's excellent collection of early English sources, “'Original Intention' in Historical Perspective” (1986) 54 George Washington LR 296 at 299-308; see also R Berger, “The Founders' Views - According to Jefferson Powell” (1989) 67 Texas L R 1033 at 1059-1065. To Berger's copious references can be added Plowden's summary of various cases involving statutory interpretation, as “hav[ing] always been founded upon the intent of the Legislature”: Stradling v Morgan (1560) 1 Plowd 199 at 205; and Sir Edward Coke's statement that “every statute ought to be expounded according to the intent of them that made it”: 4 Co Inst 330. Coke's conception of interpretation is discussed in R A MacKay, “Coke - Parliamentary Sovereignty or the Supremacy of the Law?” (1924) 22 Michigan L R 215 at 236-237. See also F Dwarris, A General Treatise on Statutes (2nd ed 1848) at 551-552 and 556-560. See also n 106.

⁴⁷ The classical statement of this view is K Llewellyn, “Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to be Construed” (1950) 3 Vanderbilt LR 395. In his list of the canons of interpretation, Llewellyn does not include the principle that statutes should be interpreted according to the intentions of the legislature. This is surprising, given that in the very next article, Charles Curtis says “[w]e have, almost all of us, I think, been brought up in the belief that the interpretation of legal documents consists essentially in a search for the intention of the author”, and that this “familiar doctrine is current as well as orthodox”: C Curtis, “A Better Theory of Legal Interpretation” (1950) 3 Vanderbilt LR 407 at 407 and 408.

⁴⁸ See generally DJ Hurst, “The Problem of the Elderly Statute” (1983) Legal Studies 21.

⁴⁹ “[T]hose ancient acts and graunts must be construed and taken as the Law was holden at that time when they were made”: 2 Co Inst 2.

⁵⁰ Sharpe v Wakefield (1888) 22 QBD 239 at 242.

⁵¹ P Langan, above n 44 at 264.

⁵² See DJ Hurst, above n 48 at 23-24.

⁵³ Harcourt v Fox (1693) 1 Show KB 506 at 535, quoted in Hurst, above n 48 at 24 footnote 17 (emphasis added).

⁵⁴ This mistaken inference badly mars the arguments made in H Jefferson Powell, “The Original Understanding of Original Intent” (1985) 98 Harvard LR 885 at 885-890, 895-896,903-906 and 948.

⁵⁵ This was not the only reason: evidence ot what was said in parliamentary debates was also excluded because it was regarded as unreliable, and as unprofitably adding to the time and expense of litigation.

⁵⁶ See T R S Allan, “Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism” (1985) 44 C L J 111 at 117-118 and 122-124.

⁵⁷ See J Goldsworthy, “Marmor on Meaning and Interpretation” (1995) 1 Legal Theory 431. Since that article was written, in 1994, I have discovered that a very similar theory of literary meaning was previously proposed by W E Tollhurst, in “On What a Text Is and How It Means” (1979) 19 British Journal of Aesthetics 3, and adopted by J Levinson in “Intention and Interpretation: A Last Look”, in G Iseminger (ed) Intention and Interpretation (1992) 221.

⁵⁸ See, eg, Maxwell (1875), above n 41 at 20-21; P Langan, above n 44 at 47-50; E Driedger, above n 44 at 149-151; J F Burrows, “Statutory Interpretation in New Zealand”, reprinted in NJ Singer, above n 44, 647 at 658; J Bell and G Engle, Cross on Statutory Interpretation (2nd ed 1987) at 140-142; G Devenish, Interpretation of Statutes (1992) at 127-129 and 130-133; D Gifford, Statutory Interpretation (1990) at 117-119.

⁵⁹ Official Record of Debates, Ausfralasian Federal Convention,Melbourne, 1898, at 1064 (17 February).

⁶⁰ See J Goldsworthy, “Implications in Language, Law and the Constitution”, in G Lindell (ed), Future Directions in Australian Constitutional Law (1994) 150 at 177-178.

⁶¹ McGuire v Simpson (1977) 139 CLR 362 at 369-370 and following.

⁶² See the authorities cited in P Lane, The Australian Federal System (2nd ed 1979) at 1107 and 1110-1113; L Zines, The High Court and the Constitution (4th ed 1997) at 17.

⁶³ AG (NSW) v Brewery Employees Union of NSW (1904) 6 CLR 469 at 501, 521-522, 534-541, and 610 per Griffith CJ, Barton, O'Connor and Higgins JJ respectively.

⁶⁴ Ibid at 610 per Higgins J; Federated Saw Mill etc Employees of Australasia v James Moore & Son Pty Ltd (1909) 8 CLR 465 at 487 per Griffith CJ, and at 521 per Isaacs J; Australian Tramway Employees' Association v Prahran and Malvern Tramway Tntst (1913) 17 CLR 680 at 695-696 per Isaacs and Rich JJ; Federated Municipal and Shire Council Employees' Union of Australia v Melbourne Corporation (1919) 26 CLR 545 at 552-554 per Isaacs and Rich JJ, and at 576 per Higgins]

⁶⁵ R v Commonwealth Court of Conciliation and Arbitration and Merchant Service Guild (1912) 15 CLR 586 at 592.

⁶⁶ R v Commonwealth Conciliation and Arbitration Commission; Ex parte Association of Professional Engineers (1959) 107 CLR 208 at 267; see also Bonser v La Macchia (1969) 122 CLR 177 at 230.

⁶⁷ (1972) 128 CLR 221 at 229.

⁶⁸ Deane J has probably come closest to doing so, but see the text to nn 101-106, 108-109 and 111, below.

⁶⁹ (1907) 4 CLR 1087 at 1106.

⁷⁰ Ibid at 1104-1106.

⁷¹ (1904) 1 CLR 329 at 358-360; at 339-340, Griffith CJ quoted Tindall CJ's statement in the Sussex Peerage Case (see n 42, above) with approval, and referred to the historical context of s 93 of the Constitution; at 350-356, Barton J said that “the intention of the instrument must be gathered from the obvious facts of history - if we are at all to go outside the four corners of the instrument”, and consult “facts well known and purposes clear to all of us” in order to reveal “the considerations which must have been present to the minds of the framers”. See also Murray & Co v Collector of Customs (1903) 1 CLR 25 at 32, where Griffith CJ cited “a well-known fact” in explaining the purpose of s 95 of the Constitution; Parkin and Cowper v James (1905) 2 CLR 315 at 330, where Griffith CJ said that the original purpose of some words in s 73 was “a matter of common knowledge”; and The Federated

Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Employees Association (1906) 4 CLR 488 at 534 per Griffith CJ.

⁷² Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.

⁷³ L Zines, The High Court and the Constitution (4th ed 1997) at 12-13.

⁷⁴ (1920) 28 CLR 129 at 152.

⁷⁵ Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 407.

⁷⁶ Evans v Williams (1910) 11 CLR 550 at 570-571, quoting from judgments of Lord Blackburn and Lord Halsbury.

⁷⁷ Hodge v R (1907) 5 CLR 373 at 386.

⁷⁸ H Burmester correctly refers to “one of the basic principles of constitutional interpretation in Australia, namely that the interpretation of the Constitution can take account of historical understandings, and should be made in light of circumstances existing at the time when the Constitution was made”: “The Convention Debates and the Interpretation of the Constitution”, in G Craven (ed), The Convention Debates 1891-1898: Commentaries, Indices and Guide (1986) 25 at 30. For a recent examination of the case law in point, see C McCamish, “The Use of Historical Materials in Interpreting the Commonwealth Constitution” (1996) 70 A L J 638.

⁷⁹ See PH Lane, The Australian Federal System, above n 62 at 1110, and the examples referred to there. See also J Thomson, “Constitutional Interpretation: History and the High Court: A Bibliographical Survey” (1982) 5 UNSWLJ 309 at 310 and 316-317 (footnotes 23-27).

⁸⁰ (1972) 128 CLR 221.

⁸¹ See Attorney-General (Cth); ex rel McKinlay v Commonwealth (1975) 135 CLR 1 at 17.

⁸² (1981) 146 CLR 559.

⁸³ Ibid at 614-615.

⁸⁴ Ibid at 616.

⁸⁵ See text to nn 57-58, above.

⁸⁶ (1975) 135 CLR 1, especially af17 and 47 per Barwick CJ and Gibbs J respectively.

⁸⁷ (1983) 152 CLR 254, especially at 261-262 (“As a matter of historical fact, the object intended by the framers of the Constitution to be achieved by s 41 is quite clear”) and at 277 (“The meaning and purpose of s 41 may be gleaned from its terms and context and by reference to the circumstances in which the section was to operate immediately after federation”).

⁸⁸ (1986) 160 CLR 171.

⁸⁹ Ibid at 179.

⁹⁰ Ibid at 180-81.

⁹¹ Ibid at 190 (emphasis added).

⁹² Ibid at 216-17.

⁹³ Cole v Whitfield (1988) 165 CLR 360 at 385.

⁹⁴ Ibid at 393.

⁹⁵ (1989) 168 CLR 340 at 375-379.

⁹⁶ New South Wales v Commonwealth (1990) 169 CLR 482 at 501-503.

⁹⁷ Victoria v Commonwealth (1996) 138 ALR 129 at 138-144.

⁹⁸ (1971) 122 CLR 353 at 396-397.

⁹⁹ Ibid at 402.

¹⁰⁰ If it was simply not clear, one way or the other, whether they were really part of the Constitution, then the Court in Engineers corrected an antecedent error, because such an unclear implication cannot be regarded as a “necessary” implication in accordance with orthodox principles of interpretation: see J Goldsworthy, above n 60 at 168-170.

¹⁰¹ (1994) 182 CLR 104 at 171-174.

¹⁰² Ibid at 171.

¹⁰³ See nn 108-109 and 111, below, and J Goldsworthy, “The High Court, Implied Rights, and Constitutional Change”, Quadrant, March 1995 at 50.

¹⁰⁴ This is because of the distinction between enactment intentions and application intentions, which is explained in the t!"iird paragraph of Part 3. Deane J is clearly denying the relevance of application intentions only, when he argues that it is irrelevant that “the implications to be drawn from the Constitution's doctrine of representative government were not seen, in all the circumstances of times that are gone, as precluding the application of the ordinary laws of defamation to political communication and discussion”: Theophanous's case (1994) 182 CLR 104 at 173.

¹⁰⁵ Ibid at 171-172.

¹⁰⁶ 'Ibid at 171-172, quoting A Inglis Clark, Studies in Australian Constitutional Law (1901) at 21-22. Inglis Clark does seem to have been a kind of originalist. Just before these passages quoted by Deane J, he said that: “It has been repeatedly stated that the fundamental rule for the interpretation of a written law is to follow the intention of the makers of it as they have disclosed it in the language in which they have declared the law”. When the circumstances of the case before the Court “could not have been in the contemplation of the makers of the law”, it is necessary to examine the language of the law “for the purpose of ascertaining whether it is such as we may reasonably believe the makers of the law would have regarded as sufficient to embrace the particular act or set of circumstances in question if it had been foreseen by them”. If the answer is that they would have so regarded it, “then the language of the law is construed to embrace” that act or set of circumstances: ibid at 19-20. The passages quoted by Deane J then follow, in order to explain and justify this method of interpretation-although how they do so is not entirely clear.

¹⁰⁷ (1994)182 CLR 104 at 197 (emphasis added). See also above n 29.

¹⁰⁸ Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 69, (emphasis added).

¹⁰⁹ (1992) 174 CLR 455 at 484-485.

¹¹⁰ Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 126.

¹¹¹ Ibid at 164.

¹¹² Ibid at 188.

¹¹³ Ibid at 205.

¹¹⁴ Cheatle v R (1993) 177 CLR 541 at 562.

¹¹⁵ Ibid at 557.

¹¹⁶ Ibid at 560.

¹¹⁷ See text to nn 209-10, below.

¹¹⁸ J Goldsworthy, above n 60; J Goldsworthy, above n 57; J Goldsworthy, above n 103.

¹¹⁹ R Dworkin, Taking Rights Seriously (1977) at 340. Even moderate originalism is to some extent revisionary. It is impossible for any such theory to be completely consistent with the very extensive and complex judicial practices it attempts to describe, because those practices are themselves not entirely consistent with one another. Such a theory can only claim to provide a better overall “fit” than any of its competitors. For some alleged inconsistencies among the principles of constitutional interpretation which judges have espoused from time to time, which in some cases may not be able to be reconciled, see M Coper, “The Place of History in Constitutional Interpretation”, in G Craven (ed), The Convention Debates 1891-1898: Commentaries, Indices and Guide (1986), 5 at 6 ff. When the theory of moderate originalism is unable to accommodate some judicial practice, it is usually because the practice is more, rather than less, originalist than the theory recommends. For example, the judicial practice of referring to previous drafts of the Constitution is difficult to reconcile with the theory's requirement that evidence of the founders' intentions must be readily available to its intended audience (see the following paragraph in the text).

¹²⁰ G Craven, “Original Intent and the Australian Constitution - Coming Soon to a Court Near You?” (1990) 1 Public LR 166 at 176 (emphasis added); see also at 167 and 171-172. It should be clear from the preceding Part that I disagree with Craven's description of the

High Court's interpretative methodology since the Engineers case as “literalism”: see his “Cracks in the Facade of Literalism: Is there an Engineer in the House?” (1993) 18 MULR 540, and “The Crisis of Constitutional Literalism in Australia”, in H P Lee and G Winterton (eds), Australian Constitutional Perspectives (1992) 1.

¹²¹ As Richard Kay puts it, “[The intentions which are relevant] are intentions about the extent and consequences within the legal system of the rule that the constitution-makers were creating. They are not intentions about the resolutions of specific controversies”: “Original Intentions, Standard Meanings, and the Legal Character of the Constitution” (1989) 6 Constitutional Commentary 39 at 40. I highly recommend this excellent article, as well as an earlier one by the same author, “Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses” (1988) 82 Northwestern University L R 226.

¹²² Hilder v Dexter [1902] AC 474 at 477.

¹²³ Subject to the qualification that the theory is necessarily partly revisionary: see n 119, above.

¹²⁴ T Alexander Aleinikoff, “Updating Statutory Interpretation” (1988) 87Michigan LR 20 at 21 and 46; see also W Eskridge, “Dynamic Statutory Interpretation” (1987) 135 University of Pennsylvania LR 1479 at 1479 and 1554, and C Curtis, above n 47.

¹²⁵ See the second paragraph of Part 3, above, on the distinction between “enactment intentions” and “application intentions”.

¹²⁶ R Dworkin, “The Moral Reading of the Constitution”, New York Review of Books, 21 March 1996, 46 at 48. The article is an extract from Dworkin's latest book, Freedom's Law: The Moral Reading of the American Constitution (1996).

¹²⁷ J Harrison, “Book Review; Utopia's Law, Politics' Constitution” (1996) 19 Harvard Journal of Law and Public Policy 917 at 920, citing Dworkin, Freedom's Law, above n 126 at 291.

¹²⁸ For a powerful opening salvo by an originalist critic, see J Harrison, above n 127, passim.

¹²⁹ T Grey, “Do We Have an Unwritten Constitution?” (1975) 27 Stanford LR 703, and “Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought (1978) 30 Stanford L R 843; S Sherry, “The Founders' Unwritten Constitution” (1987) 54 University of Chicago L R 1127. These and similar works are critically scrutinised in P Hamburger, “Natural Rights, Natural Law, and American Constitutions” (1993) 102 Yale L J 907.

¹³⁰ These arguments are critically examined in R Kay, “Adherence to the Original Intentions in Constitutional Interpretation”, above n 121 at 263-273. The Ninth Amendment is discussed by R Barnett, C Massey, B Patterson and E Van Loan, in R Barnett (ed), The Rights Retained by the People (1989).

¹³¹ See J Goldsworthy, “The Constitutional Protection of Rights in Australia”, in G Craven (ed),Australian Federation, Towards the Second Century (1992) 151 at 152-153.

¹³² B Ackerman, “The Storrs Lectures: Discovering the Constitution” (1984) 93 Yale L J 1013; “Constitutional Politics/Constitutional Law” (1990) 99 Yale L J 453, and We The People (1991). In “Amending the Constitution Outside Article V” (1988) 55 University of Chicago LR 1043, Akhil Reed Amar makes the slightly different argument that change outside ArticleV can be constitutional as well as legitimate. Both arguments are discussed in D Dow, “When Words Mean What We Believe They Say: The Case of Article V” (1990) 76 Iowa LR 1.

¹³³ R Dworkin, “Bork's Jurisprudence” (1990) 57 University of Chicago LR 657 at 657; see also P Brest, “The Misconceived Quest for the Original Understanding”, reprinted in J Rakove (ed), Interpreting the Constitution, The Debate Over Original Intent (1990) 227 at 243.

¹³⁴ R Bork, The Tempting of America, The Political Seduction of the Law (1990) at 15 and 129.

¹³⁵ H L A Hart, The Concept of Law (1961).

¹³⁶ C Fried, Order and Law, Arguing the Reagan Revolution -a Firsthand Account (1991) at 18.

¹³⁷ H Monaghan, “Stare Decisis and Constitutional Adjudication” (1988) 88 Columbia L R 723.

¹³⁸ M Cooray and S Ratnapala, “The High Court and the Constitution - Literalism and Beyond”, in G Craven (ed), The Convention Debates 1891-1898: Commentaries and Indices, (1986) 203; G Craven, “The States - Decline, Fall, or What?”, in G Craven (ed), Australian-Federation, Towards the Second Century (1992) 49.

¹³⁹ Many members of the founding generation, at the Convention Debates and during , discussion of the Judiciary Bill in 1903, expressly supported the idea that the Constitution's, general terms should be interpreted broadly in order to accommodate the future needs of the Commonwealth: see A R McGregor, “What Role Did the Framers of the Constitution 1 Intend For the High Court?”, unpublished LLB (Hons) thesis (submitted 2 September 1996,. Faculty of Law, Monash University) at 33-44. The reference to application intentions is to, those concerning the characterisation of Commonwealth powers. The founders may have' assumed that the High Court would adopt the Canadian approach to characterisation, but the provisions they enacted did not require it to do so. See J Crawford, “The Legislative Power of the Commonwealth”, in G Craven (ed), The Convention Debates, above n 138 at 113, 121-125 and especially 124-125.

¹⁴⁰ J Gardner, “The Positivist Foundations of Originalism: An Account and Critique” (1991) 71 Boston University L R 1 at 32-33. Far criticisms of this argument as applied to Australia, see J Crawford, “Amendment of the Constitution”, in G Craven (ed), Australian Federation, Towards the Second Century, above n 138 at 177, 179 and 192, and J Goldsworthy, abovE n 103 at 52.

¹⁴¹ J Searle, “Collective Intentions and Actions”, in PR Cohen, J Morgan and ME Pollack (eds),Intentions in Communication (1990) at 401.

¹⁴² Ibid, and for a more recent and much simpler exposition, his The Construction of Social Reality (1995) at 23-26.

¹⁴³ A Marmor, Interpretation and Legal Theory (1992) at 164-165.

¹⁴⁴ When he introduced the Constitution Bill in the House of Commons, the Secretary of State for the Colonies, Mr. Chamberlain, denied that the Imperial Parliament was “merely a Court for the registration of their [the Australians'] decrees”; nevertheless, he immediately went on to say that “we have accepted without demur, and we shall ask the House of Commons to accept, every point in this Bill, every word, every line, every clause, which deals exclusively with the interests of Australia ... [W]e recognise that they are the best judges in their own case ... and the result is that the Bill ... is, so far as ninety-nine

hundredths of it, I think I might almost say 999-thousandths of it is concerned - a,s regards the vast proportion of the Bill - exactly the same as that which passed the ' referendum of the Australian people”: Commonwealth of Australia Constitution Bill, Reprint of 1 the Debates in Parliament [etc.] (1900) at 12. The exception was s 74, concerning appeals to 1 the Privy Council, which he said “touches the interests of the Empire as a whole”, and which was debated at length.

¹⁴⁵ S Donaghue, “The Clamour of Silent Constitutional Principles” (1996) FL Rev 133 at 151-

154. The only special problems raised by group intentions are to identify the members of the group and combine their intentions. As for the problems of deciding which of their mental states are intentions (as opposed to hopes, expectations etc.), and at what level of abstraction they should be counted (ibid at 152-153), these also have to be resolved when, we interpret the utterances of a single individual in the light of contextual evidence of his, or her intentions. In that context we do not agonise over these problems, or regard them as, reasons for doubting that it is possible to take that contextual evidence into account.

¹⁴⁶ Ibid at 165. Donaghue also says that the Constitution “was designed to ensure that the, government will be representative”: ibid at 162 (emphasis added). This is to ascribe a collective intention to those designed it.

¹⁴⁷ See text to n 58, above.

¹⁴⁸ “Adherence to the Original Intentions in Constitutional Adjudication”, above n 121 at 250.

¹⁴⁹ S Holmes, Passions and Constraint: On the Theory of Liberal Democracy (1995).

¹⁵⁰ Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1910) 6 CLR 309 at 367-368.

¹⁵¹ Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29 at 81.

¹⁵² McCulloch v Maryland (1819) 4 Wheat 316 at 407 and 415.

¹⁵³ Marbury v Madison (1803) 1 Cranch 137 at 176 and 177, quoted by W Berns, “Judicial/ Review and the Rights and Laws of Nature” (1982) The Supreme Court Review 49 at 52.

¹⁵⁴ A Scalia, “The Role of a Constitutional Court in a Democratic Society” (1995) 2 The Judicial/ Review 141 at 142-143. Marshall's reasoning in McCulloch v Maryland concerned the need! for the powers of the legislature to be interpreted broadly for precisely this reason-W Berns, above n 153.

¹⁵⁵ A Scalia, “Originalism: The Lesser Evil” (1989) 57 Cincinnati LR 849 at 853.

¹⁵⁶ A Scalia, above n 154 at 146-147.

¹⁵⁷ D Dawson, “Intention and the Constitution - Whose Intent?” (1990) 6 Australian Bar Review 93 at 97.

¹⁵⁸ See text ton 137, above.

¹⁵⁹ See the penultimate paragraph of Part 3, above.

¹⁶⁰ M J Detmold, “Australian Law: Federal Movement” (1991) 13 Syd LR 31.

¹⁶¹ See Part 3, above.

¹⁶² Discussed by L Lessig, “Understanding Changed Readings: Fidelity and Theory” (1995) 47 Stanford LR 395 at 415-419, and T Alexander Aleinikoff, above n 124 at 47-49.

¹⁶³ See the cases cited in DJ Hurst, above n 48 at 33 footnotes 74-76, and J F Burrows, The Problem of Time in Statutory Interpretation” [1978] NZLJ 253 at 257-58 footnotes (an)-(ao). See also F Bennion, Statutory Interpretation (2nd ed 1992) at 625, example 288.15 for “necessary”, and 626 example 288.18 for “exceptional depravity”.

¹⁶⁴ 347 us 483 (1954).

¹⁶⁵ See text to n 126, above.

¹⁶⁶ J Goldsworthy, above n 60 at 154-161.

¹⁶⁷ See, eg, T J Richards, The Language of Reason (1978) at 75 and 133-137, and M Devitt and K Sterelny, Language and Reality (1987) at 30-33 and 67-68.

¹⁶⁸ This distinction has also been recognised in the United States: Sutherland J once said that “meaning is changeless [while] application ... is extensible”: Home Building & Loan Assoc v Blaisdell 290 US 398 at 451 (1934). See also Village of Euclid v Ambler Realty Co 272 US 365 at 367 (1926): “while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which ,are

constantly coming within the field of their operation”. (Both quoted in L Lessig, “Fidelity in Translation” (1993) 71 Texas LR 1165 at 1185 footnote 68.) See also South Carolina v United States 199 US 437 at 448 (1905) per Brewer J.

¹⁶⁹ See the cases discussed in J F Burrows, above n 163 at 256; D J Hurst, above n 48 at 32 footnotes 68-71; J Bell and G Engle, Cross on Statutory Interpretation (3rd ed 1995) at 52; and F Bennion, above n 163 at 618 (example 288.1), at 621 footnote 5, at622 (example 288.7) at 622 footnote 1, and at 628 generally.

¹⁷⁰ An assumption defended by the f{igh Court in Victoria v Commonwealth (1996) 138 ALR 129.

¹⁷¹ For an excellent account of some difficult cases, see L Zines, “Characterisation of Commonwealth Laws”, in H P Lee and G Winterton (eds),Australian Constitutional Perspectives (1992) 33 at 34-39.

¹⁷² Cheatle v R (1993) 177 CLR 541.

¹⁷³ This was the issue in King v Jones (1972) 128 CLR 221.

¹⁷⁴ L Zines, above n 171 at 40 and 41-42.

¹⁷⁵ The definition (connotation) of the word “army” in the Concise Oxford Dictionary is “organized force armed for fighting on land”.

¹⁷⁶ Barker v Wilson [1980) 1 WLR 884, cited in DJ Hurst, above n 48 at 32-33.

¹⁷⁷ Derby & Co Ltd v Weldon (No 9) [1991) 1 WLR 652, cited in F Bennion, above n 163 at 628.

¹⁷⁸ See L Zines, above n 171. Michael Coper suggests that a progressive interpretation of the power over “lighthouses” would be called for if, in the future, lighthouses were replaced by a more sophisticated technological system for guiding vessels at sea: “The Place of History in Constitutional Interpretation”, in G Craven (ed), above n 119, 5 at 18 footnote 74.

¹⁷⁹ See F Bennion, above n 163 at 607-617.

¹⁸⁰ That is no doubt one reason why the section in Bennion's text concerning the “presumption that updating construction to be given” to old statutes follows immediately after the section concerning the “presumption that rectifying construction to be given” to recent statutes: ibid, sections 287 and 288.

¹⁸¹ L Lessig, above n 168.

¹⁸² R Bork, above n 134 at 168-169.

¹⁸³ A Scalia, above n 154 at 142. See also the comments of two other well known originalists, W Rehnquist, in “The Notion of a Living Cqnstitution” (1976) 54 Texas LR 693 at 694, and Attorney-General Edwin Meese, quoted in D Crump, “How Do the Courts Really Discover Unenumerated Fundamental Rights?” (1996) 19 Harvard J Law and Public Policy 795 at 821.

¹⁸⁴ R Bork, above n 134 at 169.

¹⁸⁵ L Lessig, above n 168 at 1259-60; Lessig may have changed his mind on this point: see L Lessig, above n 162 especially at 440. Note though that Lessig accepts method 1, above,

in the case of a constitutional provision which incorporates a moral principle so as to require judges to make a moral judgment in applying it: above n 168 at 1260.

¹⁸⁶ Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 143.

¹⁸⁷ T Alexander Aleinikoff has advocated this approach in the case of statutory interpretation, above n 124 at 59: “[T]he process of interpretation should] be carried out in a present-minded fashion, as if the statute has recently been enacted.”

¹⁸⁸ [1976] QB 503.

¹⁸⁹ Ibid 5 at 511-512.

¹⁹⁰ Ibid.

¹⁹¹ DJ Hurst, above n 48 at 37. But Hurst discusses two other breaches of that principle, ibid at 38-40, and J Bell and G Engle mention another, above n 169 at 54. In F Bennion, above n 163, examples 288.11 at 624, and 288.25 at 629, appear to be other instances.

¹⁹² DJ Hurst, above n 48 at 37-38.

¹⁹³ Heby v Rafferty [1979] 1 WLR 13 at 25.

¹⁹⁴ J Bell and G Engle, above n 169.

¹⁹⁵ J Goldsworthy, above n 60, and above n 103.

¹⁹⁶ J Goldsworthy, above n 57 at 445-50, and above n 60 at 157-59.

¹⁹⁷ F Frankfurter, “Some Reflections on the Reading of Statutes” (1947) 47 Columbia LR 527 a 533.

¹⁹⁸ J Goldsworthy, above n 60 at 173.

¹⁹⁹ “Suppose we treat the statute as if it had been enacted yesterday and try to make sense of it in today's world”: T Alexander Aleinikoff, above n 124 at 49 (emphasis in original).

²⁰⁰ The Saulwick poll conducted in May 1992 is cited by S Donaghue, above n 145 at 146 footnote 87.

²⁰¹ R v Kirby; ex parte Boilermakers' Society of Australia (1956) 94 CLR 254.

²⁰² (1988) 165 CLR 360.

²⁰³ M McConnell, “The Role of Demcicratic Politics in Transforming Moral Convictions into Law” (1989) 98 Yale L J 1501 at 1528. S Smith has argued, along the same lines, that thi kind of non-originalism replaces “the rule of law” with “the rule of fortuity”: “Law Withou Mind” (1989) 88 Michigan LR 104 at 115-19.

²⁰⁴ D'Emden v Pedder (1904) 1 CLR 91 at 110 per Griffith CJ

²⁰⁵ See the example of Bill's request, discussed at the beginning of Part 3, above; and for a fuller argument, J Goldsworthy, above n 57.

²⁰⁶ J. Goldsworthy, above n 60 at 163.

²⁰⁷ See text to nn 51-52, above.

²⁰⁸ McHugh J quotes the plaintiffs' argument that although the connotation of representative democracy “may be constant ... its denotation has been capable of adapting in an evolutionary way to new situations and standards in accordance with the growth of the Australian people”: McGinty's case (1996) 186 CLR 140 at 234-235.

²⁰⁹ Ibid at 200-201.

²¹⁰ Ibid at 336-337, quoting Lord Wright in James v Commonwealth (1936) 55 CLR 1 at 43.

²¹¹ Ibid.

²¹² cheatle v R (1993) 177 CLR 541 at 560-561.

²¹³ McGinty's case (1996) 136 CLR 140 at 216.

²¹⁴ Ibid at 223.

²¹⁵ (1988) 165 CLR 178.

²¹⁶ Ibid at 184. Consider also the words “adult person” in s 41. Although the High Court rejected this interpretation, it was argued in King v Jones (1972) 128 CLR 221 that even in 1900 these words meant “person recognised by law as of mature age”, so that although 18 year olds were not adult persons in 1900, they were in 1974. If this were so, it would follow that if the age of legally recognised maturity had been raised rather than lowered, 21 year-olds who were adult persons in 1900 would not have met that description in 1974: the denotation of a concept with a fixed connotation would have included that group of people in 1900, but excluded them later on.

²¹⁷ Whether or not a term is relative in this sense is not always clear, of course, which is why moral relativism is still debatable, rather than clearly being either true or false.

²¹⁸ A Scalia, above n 155 at 862.

²¹⁹ It is true that the words “the people” in ss 7 and 24 could be given a relativist meaning, such as “all those who at any particular time are recognised as members of the political community with a right to vote”. But what justification can be given for doing so other than the desire to reach a particular desired conclusion, a desire which does not also justify relativising in a similar way every other term in the Constitution?

²²⁰ (1972) 128 CLR 221, especially at 248 per Menzies J.

²²¹ Cheatle v R (1993) 177 CLR 541 at 560 (emphasis added), quoted above at n 212.

²²² See the third paragraph of Part 3, above

²²³ McH_ug J adopts the latter interpretation, when he says that they are “words of inexact pphcah n, dependent upon matters of fact and degree andalways involving a value judgment : Langer v Commonwealth (1996) 186 CLR 302 at 342 (emphasis added). He also says that “the people” is a “vague but emotionally powerful abstraction” (ibid), which is not true of purely descriptive terms.

²²⁴ For example, Gaudron J in McGinty's case says that it is a consequence of her approach that “what was permitted by s 24 at one time may not be permitted at another”; that “notwithstanding the limited nature of the franchise in 1901” women could not now be denied the right to vote; and that “the fact that the Constitution countenanced disparity in voting value at the time of Federation provides no basis for a conclusion that significant disparity in the numbers of electors in single member electorates does not now offends 24”: McGinty's case (1996) 186 CLR 140 at 222. Similarly, Toohey J says that: “Clearly the expression of representative democracy then [in 1900] did not encompass equality of voting power. But just as clearly, the expression of the concept is now thought to do so”: ibid at 202. The same approach seems to be implicit in McHugh J's judgment in Langer's case, in Brennan CJ's and Gummow J's judgments in McGinty, and in the relevant passages in Cheat/e's case concerning jury trials.

²²⁵ This is not disputed by feminist historians. See H Irving, “A Gendered Constitution?: Women, Federation and Heads of Power”, and A Millar, “Feminising the Senate”, both in H Irving (ed), A Woman's Constitution? Gender and History in the Australian Commonwealth (1996) at 99 and 129-133 respectively.

²²⁶ I trust that it is obvious that I am not comparing women with children in respect of their ability to vote intelligently and responsibly.

²²⁷ See E S Morgan,Inventing the People; the Rise of Popular Sovereignty in England and America (1988), passim.

²²⁸ JS Mill,Three Essays: On Liberty; Representative Government; The Subjection of Women (1975 at 211; A Lincoln, Speech, 19 November, 1863.

²²⁹ J Quick and RR Garran, The Annotated Constitution of the Australian Commonwealth (1901) at 447-448 and 449-450.

²³⁰ See text to nn 34-35, above.

²³¹ (1825) 12 Sergeant & Rawles (Pa) 330 at 356.

²³² Ron Castan QC recently argued before the High Court that “this question of limits on State power is ultimately tested by taking the matter to an extreme case”, and then took “the ultimate extreme case” of a law prohibiting any criticism of the government of the day to demonstrate the existence of implied limits to State power: Levy v Commonwealth, Transcript of Proceedings, 6 August, 1996 at 8. This kind of argument is fallacious, partly forthe reason given in the text.

²³³ H Monaghan, “Our Perfect Constitution” (1981) 56 New York University LR 353.

²³⁴ Part 3, above.

²³⁵ Part 2, above; but seen 119.

²³⁶ Parts 4 and 5, above.

²³⁷ Text to nn 55-56, 121-122 and 161, above.

²³⁸ Part 7, above.

²³⁹ Part 6, above.

²⁴⁰ Part 8, above.

²⁴¹ Part 9, above.