Chapter-15 Constituion-Part-12-3

“In interpreting a constitution two points must be borne in mind.First, judicial precedent plays a lesser part than is normal in matters of ordinary statutory interpretation.Secondly, a constitution, being a living piece of legislation, its provisions must be construed broadly and not in a pedantic way — ‘with less rigidity and more generosity than other Acts.[1]’A constitution is sui generis, calling for its own principles of interpretation, suitable to its character, but without necessarily accepting the ordinary rules and presumptions of statutory interpretation.As stated in the judgment of LORD WILBERFORCE in that case:

‘A constitution is a legal instrument given rise, amongst other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language.It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms.[2]’The principle of interpreting constitutions ‘with less rigidity and more generosity’ was again applied by the Privy Council in Attorney-General of St Christopher, Nevis and Anguilla v Reynolds.[3]

In Reyes v The Queen [4]it was stated that:

“As in the case of any other instrument, the court must begin its task of constitutional interpretation by carefully considering the language used in the Constitution. But it does not treat the language of the Constitution as if it were found in a will or a deed or a charterparty. A generous and purposive interpretation is to be given to constitutional provisions protecting human rights.The court has no licence to read its own predilections and moral values into the Constitution, but it is required to consider the substance of the fundamental right at issue and ensure contemporary protection of that right in the light of evolving standards of decency that mark the progress of a maturing society.[5]’

In the Constitutional Court of South Africa, KENTRIDGE AJ has recently described the judicial task of interpretation of a written constitution[6]:

[I]t cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean ... If the language used by the lawgiver is ignored in favour of a general resort to 'values' the result is not interpretation but divination

This emphasis upon the text of the document is beneficial. It tames the creative imagination of those who might be fired by the suggested requirements of changing times or by the perceived needs of justice in a particular case[7].The text is the law. It may be elaborated by the most ample construction,[8] as is appropriate to a grant of legislative power in a relatively inflexible fundamental law intended to provide indefinitely the legal foundation for the government of the Australian people. But judicial interpretation of the Constitution risks the loss of legitimacy if it shifts its ultimate focus of attention away from the text and structure of the document[9].

Where the Constitution is ambiguous, this Court should adopt that meaning which conforms to the principles of universal and fundamental rights rather than an interpretation which would involve a departure from such rights[10]. Such an approach has, in recent years, found favour in New Zealand - where Cooke P (as LORD COOKE of Thorndon then was) has referred to the 'duty of the judiciary to interpret and apply national constitutions ... in the light of the universality of human rights'.[11] Likewise, in interpreting the Canadian Charter of Rights and Freedoms, that country's Supreme Court has frequently had regard to international instruments[12]. To do so does not involve the spectre, portrayed by some submissions in these proceedings, of mechanically applying international treaties, made by the Executive Government of the Commonwealth, and perhaps unincorporated, to distort the meaning of the Constitution. It does not authorise the creation of ambiguities by reference to international law where none exist. It is not a means for remaking the Constitution without the 'irksome' involvement of the people required by s. 128.[13] There is no doubt that, if the constitutional provision is clear and if a law is clearly within power, no rule of international law, and no treaty (including one to which Australia is a party) may override the Constitution or any law validly made under it[14]. But that is not the question here. Cases which establish that rule are irrelevant to the present problem. Where there is ambiguity, there is a strong presumption that the Constitution, adopted and accepted by the people of Australia for their government, is not intended to violate fundamental human rights and human dignity.[15] Such violations are ordinarily forbidden by the common law and every other statute of this land is read, in the case of ambiguity, to avoid so far as possible such a result.[16] In the contemporary context it is appropriate to measure the prohibition by having regard to international law as it expresses universal and basic rights.[17] Where there is ambiguity in the common law or a statute, it is legitimate to have regard to international law.[18] Likewise, the Australian Constitution, which is a special statute, does not operate in a vacuum. It speaks to the people of Australia. But it also speaks to the international community as the basic law of the Australian nation which is a member of that community[19].

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[1] see Minister of Home Affairs v Fisher [1979] 3 All ER 21

[2] See generally: Dato Menteri Othman bin Baginda & Anor v Dato Ombi Syed Alwi bin Syed Idrus [1981] 1 MLJ 29 per RAJA AZLAN SHAH AG LP

[3] Attorney-General of St Christopher, Nevis and Anguilla v Reynolds [1979] 3 All ER 129, 136

[4] Reyes v The Queen [2002] 2 AC 235

[5] Trop v Dulles (1958) 356 US 86

[6] State v Zuma [1995] 2 SALR 642 at 652-653; [1995] 1 LRC 145 at 156; cited with approval by the Privy Council in La Compagnie Sucriere de Bel Ombre Ltee v Government of Mauritius [1995] 3 LRC 494 at 500; cf 'The Commonwealth Through the Case Law: Unity in Diversity' (1997) 23 Commonwealth Law Bulletin 601 at 605-606.

[7] Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 143

[8] Australian National Airways Pty Ltd v The Commonwealth [1945] HCA 41; (1945) 71 CLR 29 at 81

[9] McGinty v Western Australia [1995] HCA 46; (1996) 186 CLR 140 at 168.

[10] Newcrest Mining v The Commonwealth [1997] HCA 38; (1997) 71 ALJR 1346 at [1997] HCA 38; 1423; 147 ALR 42 at 147.

[11]Tavita v Minister of Immigration [1994] 2 NZLR 257 at 266.

[12] See for example R v Oakes [1986] 1 SCR 103 at 120-121; R v Smith [1987] 1 SCR 1045 at 1061; Edmonton Journal v Attorney-General for Alberta [1989] 2 SCR 1326 at 1374, 1377-1378. See also Claydon, 'International Human Rights Law and the Interpretation of the Canadian Charter of Rights and Freedoms' (1982) 4 Supreme Court Law Review 287; Cohen and Bayefsky, 'The Canadian Charter of Rights and Freedoms and Public International Law' (1983) 61 Canadian Bar Review 265; Schabas, International Human Rights Law and the Canadian Charter (1991); Hogg, Constitutional Law in Canada, 3rd ed (1992) at 822-824.

[13] cf Industrial Relations Act Case [1995] HCA 45; (1996) 187 CLR 416 at 565 per Dawson J.

[14] Polites v The Commonwealth [1945] HCA 3; (1945) 70 CLR 60 at 69, 79; Horta v The Commonwealth [1994] HCA 32; (1994) 181 CLR 183 at 195.

[15]cf Kruger v The Commonwealth [1997] HCA 27; (1997) 71 ALJR 991 at 1037; [1997] HCA 27; 146 ALR 126 at 190.

[16] Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 436-437, 446.

[17] See Fitzgerald, 'International Human Rights and the High Court of Australia' (1994) 1 James Cook University Law Review 78.

[18] Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1 at 42; Chu Kheng Lim v Minister for Immigration [1992] HCA 64; (1992) 176 CLR 1 at 38; Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 306, 321; Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287. A similar approach has been adopted in the United Kingdom: Attorney-General v Guardian Newspapers (No 2) [1988] UKHL 6; [1990] 1 AC 109 at 283; R v Home Secretary, Ex parte Brind [1991] UKHL 4; [1991] 1 AC 696 at 761; Derbyshire CC v Times Newspapers [1992] QB 770 at 830; in New Zealand: Tavita v Minister for Immigration [1994] 2 NZLR 257 at 266;

[19]Newcrest Mining v The Commonwealth [1997] HCA 38; (1997) 71 ALJR 1346 at [1997] HCA 38; 1424; 147 ALR 42 at 148