Howard and constitutional interpretation

Constitutional interpretation is not a topic that usually interests anyone other than lawyers, yet, it is arguable it is the most likely cause of John Howard’s current electoral problems.

The High Court delivered judgment in the WorkChoices case in November 2006. Had the majority applied the principles of constitutional construction, relied upon by Callinan J in his dissenting judgment, the Court would have decided that Commonwealth’s legislation, based as it was on the Constitutional corporations power, was unconstitutional.

As industrial relations is the only significant policy on which Kevin Rudd has disagreed with the government, it is difficult to see what other important policy Labor could use to generate the level of popularity it currently enjoys.

According to the government, its legislation is the cause of our economic growth. According to Labor, employment has turned into slavery. According to five members of an unelected elite (Phillip Ruddock’s description of the High Court), WorkChoices is a valid exercise of the Commonwealth’s power to make laws for the “the peace order and good government” of corporations.

However, because corporations impinge on almost every aspect of life, both Callinan and Kirby JJ warn that the majority’s decision will expand the Commonwealth’s power over most areas currently regulated by the states.

It is ironic that abolishing the states was once Labor Party policy, but until this decision it was never possible.

There would be no Australian adult who would not know that Australia enjoyed a federal system of government. Unfortunately, neither the word federalism nor the concept appears in the majority’s decision.

The states had argued that the Commonwealth’s specific industrial relations power limited Commonwealth legislation in that area. Despite a century of High Court decisions to the contrary, the majority held that the corporations power in the Constitution allowed the Commonwealth to regulate contracts of employment.

Kirby J accepts that new meanings are possible: It is part of the genius of our system … that perceptions of the meaning of the Constitution change over time … Context necessarily impinges on constitutional interpretation (442).

And that understanding factors such as history, economics, commerce and emerging nationhood is necessary for Constitutional interpretation, because they: … deny the attempts to confine the meaning of the constitutional text either to the expectations of the founders in the Constitutional Conventions or the reasoning of earlier Justices of this Court (442).

But, in the end, he does not articulate a principle of construction, but merely relies on a century of High Court precedents to hold the Commonwealth’s legislation unconstitutional: I refuse to accept that our predecessors in this Court were ... blind to the true meaning of the Constitution … (608).

Justice Callinan, says, of the High Court’s principles of construction: I search for consistency of interpretation of the Constitution by the Justices of this Court but cannot find it because it does not exist (738).

And he rejects Kirby’s view that meanings of words change: in practice substantive linguistic change occurs very slowly, particularly in legal phraseology (763).

Callinan J accepts that the Constitution must be construed by looking to the original intention of the founders: The Court is … obliged, to have regard to the Convention Debates (763); but then, as if quoting from the American Founding Fathers, His Honour refers to a mischief that our federal democracy remedies: [federalism] is a feature that tends to protect liberty and to restrain the over-concentration of power. (612). This is not from the Convention debates.

And later he will say: To disregard entirely a ... fundamental "policy" of the Constitution, federalism, and the careful division of power that it involves, is to disregard … the object which … the framers intended, the people … adopted, and the Imperial Parliament implemented ... (741).

His Honour’s words resonate with sense - until he reaches the last clause. If the Constitution’s implementation is the result of British legislation, then it can be legally revoked by an amendment of the British parliament (assuming Australians bothered to take any notice). No British or Australian legislation can prevent this. Our independence, is therefore, a legal fiction; Unless there had been some revolutionary event which severed the legal connection with Britain.

This, in fact, occurred. The better view of the Constitution, is that it is a political document, a compact between the people who agree to be governed in a certain way for a definite purpose. Ratification by the citizens of the Australian colonies was the implementing power for the Constitution. The legal conundrums that followed were the direct result of a High Court that misconstrued the ratifying act of the people.

Justice Callinan, rightly, looks to the United States Constitution as the source of our Constitution; but the source and meaning of federalism can be found best explained in the Federalist Papers which were written by the American founders to convince New York State citizens to ratify their new Constitution.

We assume, without knowing, but knowing how well read he is, that His Honour has read them.

Had he included appropriate references to those essays in his judgment, he would have established a principle of constitutional interpretation whereby future constitutional lawyers could look to the original intent of the original founders. Inter alia, they would discover the purpose of a federal republic such as ours is to better secure the citizen’s natural rights, expressed by Abraham Lincoln to apply to all men (including Australians) at all times.

One can not help but be sympathetic to Callinan J’s opinion of the majority’s decision. It is worth considering that if “the peace order and good government” of corporations permits the Commonwealth to regulate employment contracts, how much more can be regulated by a law for “the peace order and good government” of our currency coinage and legal tender (they being another head of Commonwealth power)?

The expansion of the Commonwealth’s power to date has been more gradual and silent than sudden; but, thanks to the High Court, it is probably now complete.

Some looking at Australia must wonder if it doesn’t resemble more the Weimar Republic in 1931 waiting for the Ubermensch than the liberal democracy it once aspired to be.