Anne Twomey (University of Sydney – Faculty of Law) has posted Constitutional Alteration and the High Court: The Jurisprudence of Justice Callinan (University of Queensland Law Journal, Vol. 27, No. 1, pp. 47-69, 2008) on SSRN. Here is the abstract:
This article considers the relationship between constitutional interpretation and constitutional alteration as manifested by the jurisprudence of Justice Callinan of the High Court of Australia. It discusses the connection between originalism and respect for the role of the people in amending the Constitution. In doing so it considers how the High Court has dealt with the ignificance of referenda, and in particular failed referenda, when interpreting the Constitution. It also considers how the the drawing of implications from the Constitution may be affected by an originalist approach that is tied to the fundamental role of the people in approving constitutional change.
And from the text:
In the Work Choices case, [Justice] Callinan observed:
What happened in the referenda to which I have referred is particularly compelling because of the repetitiveness and ingenuity of the attempts made by the Commonwealth to gain the power which in this case it now says it has always had. The Court should not disregard that history. The people have too often rejected an extension of power to do what the Act seeks to do for that. To ignore the history would be, not only to treat s 128 of the Constitution as irrelevant, but also for the Court to subvert democratic federalism for which the structure and text of the Constitution provide.75
In contrast, the majority in the Work Choices case rejected the relevance of prior failed referenda. Their Honours stated that there were ‘insuperable difficulties in arguing from the failure of a proposal for constitutional amendment to any conclusion about the Constitution’s meaning.’76 They first noted that there was a problem of equivalence between the scope of a failed constitutional amendment and the question that fell for determination in the case.
And:
Perhaps the most provocative statement made by the majority of the High Court in the Work Choices case was its attempt to equate the High Court’s power to interpret the Constitution with the power of the people to alter the Constitution. Their Honours said:
Chapter III, particularly s 76(i), indicates that the determination of matters arising under or involving the interpretation of the Constitution is committed to the judicial power of the Commonwealth. The phrase “or involving its [the Constitution’s] interpretation” encompasses later curial disputation concerning earlier decisions respecting the Constitution. Such decisions may also be followed by the passage of a proposed law for the alteration of the text of the Constitution pursuant to s 128. But the opening words of s 128, “[t]his Constitution shall not be altered except in the following manner…”, must be read with those of Ch III to which reference is made above.83
By this statement the High Court appears to seek to arrogate to itself a power of constitutional alteration through interpretation84 which is equal to that of the people in a referendum under s 128.
This paper should be of interest to constitutional theorists everywhere. (There are the usual stylistic differences between Australian and American constitutional scholarship, but the substance is fascinating and important.)
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