The Frozen Continent: The High Court’s Approach to Referenda Interpretation

Australia is ‘constitutionally speaking … the frozen continent’. There have been 44 referenda. Eight have succeeded. Of those, only two have required interpretation by the High Court. Due to the nature of our frozen Constitution, the High Court has not developed a consistent theory regarding the interpretation of constitutional provisions which have been inserted or amended by way of referenda. This essay examines Constitutional interpretative theories and the High Court’s approach to referenda interpretation in Kartinyeri v Commonwealth and Wong v Commonwealth. It considers how intent and extrinsic referenda materials are used by the High Court to discern meaning. It then explores how future referenda may be interpreted. Ultimately, I argue that the High Court should place more emphasis on the intent of the legislature and electors when interpreting provisions altered through referenda. This approach is more consistent with the purpose of s 128.

Insertion and amendment

The High Court’s interpretative approach to insertions and amendments differs in regard to the intent discerned. Provisions that are inserted have no meaning at Federation. Instead, the meaning is formed at the time the provision is inserted through referendum. Therefore, the only intent that can be discerned is that of the amenders. Provisions that are amended have an initial meaning that is formed at Federation. Amended provisions then have a subsequent altered meaning that is formed by the amenders at referendum. Therefore, when the Court interprets an amended provision, they must balance the framer’s intent at Federation with the amender’s intent at a referendum.

In 1946, s 51(xxiiiA) was inserted into the Constitution to allow the Commonwealth to legislate with respect to social services. Section 51(xxiiiA) is the only inserted provision which has had to be interpreted by the High Court. It has been interpreted in relation to an exception within the provision. The exception was proposed by the then Opposition Leader, Robert Menzies, and stated ‘(but not so as to authorize any form of civil conscription)’. The meaning of this exception was interpreted in British Medical Association, General Practitioners and Wong. In Wong, the only intent that needed to be discerned was that of the amenders.

In 1967, s 51(xxvi) was amended to repeal the discriminatory exception in the ‘races power’ that the Commonwealth could legislate in respect to any race ‘other than the aboriginal race in any State’. After the removal of those eight words, the High Court had to consider if the ‘races power’ was confined only to beneficial laws or if it also permitted detrimental laws. This question was considered in obiter in Koowarta and Tasmanian Dam and directly in Kartinyeri. In Kartinyeri, the Court had to balance the framer’s intent formed at Federation with the amender’s intent formed at the 1967 referendum. Three Justices placed primacy on the framer’s intent as opposed to the amender’s intent. Therefore, the ‘races power’ continued to hold the same meaning as formed at Federation, permitting racially detrimental laws.

Intent and textual meaning

More broadly, the examination of intent has not bound the Court to accept the original meaning of original provisions in the Constitution. Nor should it for inserted or amended provisions. Original meaning has not bound the Court because the Court has traditionally taken a textualist approach to constitutional interpretation. When original intent is considered, it can only be used in so far as it identifies ‘the contemporary meaning of language used [and] the subject to which that language was directed’.

Accordingly, the Court has continued to place primacy on the textual approach. The textual approach extends to referenda. In effect, the textual approach limits the intent of the amenders to the words conveyed in the amended or inserted provision. This limitation on amenders’ intent is best conveyed in Kartinyeri where Gaudron J considered the 1967 referendum to be a ‘minimalist amendment’ which resulted in no textual change. Given no substantive change to the text, the meaning of the provision similarly did not change.  Therefore, original provisions, insertions and amendments will only be interpreted to the extent that there are words in the Constitution that convey meaning. The intention of the amenders is of no effect unless their intent is supported by words that appear in the Constitution.

The use of extrinsic materials

Intent is discerned through extrinsic materials. The Court has, for a long time, referred to extrinsic materials such as the draft Constitutional Bills and texts written by framers such as Quick and Garran. In 1988, the Court extended the use of extrinsic materials in Cole v Whitfield. The Court’s approach post-Cole has embraced the use of the Convention Debates. The Convention Debates are now used for three purposes, namely, ‘for the purpose of identifying the contemporary meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards federation’. Importantly, Cole upholds a textual approach. Where reference is made to historical material, it is ‘not for the purpose of substituting for the meaning of the words’. Therefore, the Court’s textual approach is maintained in the post-Cole era. Where intent is discerned through extrinsic materials, the intent merely aids and does not supplement the text. After Cole, extrinsic referendum materials may be used by the Court ‘in the same way as the Court now uses the Convention Debates’.

In the context of referenda, when the Court considers intent through extrinsic referenda materials, they are considering four different intentions: a) the legislative intent of the Parliament to approve the words, b) the electors’ intent of those who voted in the referendum to approve the words, c) the executive intent of the Cabinet to choose the words, and d) the intent of the expert who suggested or advised against the referendum.

These groups can be further categorised as ‘enactors’ and ‘framers’. Enactors are those that are provided for in s 128, the legislature and the people. These groups vote on the wording of the provision. The framers are those who develop the words of the provision – the executive and experts. Moreover, the search for intent is not to find the ‘private’ or ‘subjective’ intentions of these groups; it is instead to understand ‘the reasons for the amendment and of the means by which it came about’.

Legislative intent

In both Kartinyeri and Wong, the Court considered the intent of the legislature. In doing so, the Court considered the Parliamentary Debates. There was a distinction drawn between Second Reading Speeches and broader Parliamentary Debates. The Commonwealth in Kartinyeri submitted that ‘materials beyond the second reading speeches are superficial’ and do ‘not have the authority … of a Convention Debate’.

In Kartinyeri, the majority did not mention the Parliamentary Debates. Kirby J, in dissent, was the only Justice to consider this material.  In Wong, all Justices considered the Parliamentary Debates. They did so extensively.

The difference between Kartinyeri and Wong may be understood by the fact that the former concerned an amendment which did not substantially alter the text, whereas the latter inserted a new provision. Therefore, in Wong there was no original intent as understood by reference to the framers at Federation to discern what the provision meant in the case of ambiguity. As such, the Court made greater reference to the legislative intent of the insertion to understand the mischief that Parliament sought to resolve. Another difference is that the Court considered the debates of the 1946 referendum to be of more use than the 1967 referendum. In Wong, the key section of the provision the Court was interpreting was proposed through Parliamentary Debates, by the Opposition Leader, and not a member of the executive.

Accordingly, the Parliamentary Debates were referenced to further understand the purpose of the exception in s 51(xxiiiA). Moreover, the Parliamentary Debates in the 1967 referendum did not explain the issue that the Court was concerned with in Kartinyeri, namely, whether laws after the amendment could only be for beneficial purposes. Therefore, the ambiguity could not be resolved through reference to the Parliamentary Debates.

Elector intent

The intent of the electors must be considered ‘especially so in Australia because of the necessity, exceptionally, to involve the electors of the Commonwealth in the law-making process’. It is difficult to ascertain this intent because of the magnitude of people that vote on referenda. The Court typically considers the ‘Yes / No’ pamphlets to represent the intent of the electors. The Court referenced these pamphlets in both Kartinyeri and Wong.

When these pamphlets were introduced the Prime Minister, Andrew Fisher, said that there ‘can be nothing worse for a country than to expect the people in it to vote for or against the alteration of their Constitution without knowing what they are doing’.39 The Opposition Leader, Alfred Deakin, expressed similar sentiments, saying, ‘it is our duty, when we ask the electors to vote for or against momentous proposals of this kind, to give them the best material we have in order that they may form an independent judgment’.

Whilst all electors are provided for with the ‘Yes / No’ pamphlets, there are numerous issues regarding the Court using them to discern electoral intent. Firstly, it is unknown whether the electors read these documents, let alone base their vote in the referendum upon them.

Secondly, these documents are written by those in the legislature that voted for or against the referendum bill. As such, these documents express the intent of the legislature. Finally, these documents do not necessarily assist an understanding of the provision; instead, they are an attempt to influence voting. The need to make reference to electoral intent is important due to the significance of s 128. The mechanism for doing so is dubious. Yet the Court consistently has referred to pamphlets when interpreting a provision that is inserted or amended by way of referenda.

Executive intent

Executive intent concerns Cabinet’s choice of words in relation to constitutional alteration. This intent is inherently private as it can only be assessed in reference to documents which are not available to the legislature nor the electors when they respectively vote on the referendum. In Wong, the Court considered the private advice of the Solicitor-General in 1946. The full Court, except Kirby J, attempted to discern meaning from this advice. In Kartinyeri, no reference was made to executive intent. However, Anne Twomey has argued that reference could have been made to Cabinet documents which provided greater clarity on the intent to enact a ‘minimalist amendment’ that left the original text of the ‘races power’ unchanged. Cabinet documents reveal that ‘the Commonwealth could well find it of value in the future’ to use the ‘races power’ to legislate adversely with respect to people of any race. This may have supported a conclusion that the power could be used detrimentally.

The references to the intent of the executive may be useful to resolve ambiguity; however, reliance on these documents moves attention away from the intent of the legislature and the electors. Section 128 does not require that the referendum must be initiated by the executive. Section 128 instead places primacy on ‘three principles: those of Parliamentary government, of democracy and of federalism’. The deliberations of Cabinet and the advice of the Solicitor General are not known to the legislature nor the broader public. When this intent is considered, it inherently undermines the principle of s 128 and limits the power of the people to alter the Constitution.

Expert intent

The Court regularly cites academic writing in relation to constitutional interpretation. Both Wong and Kartinyeri referred to academic writing. They did so particularly in relation to Danuta Mendelson’s article on the history of s 51(xxiiiA)50 and Geoffrey Sawer’s article on the history of s 51(xxii). However, the search for intent from these two articles differed as Mendelson’s article was released after the referendum whilst Sawer’s article was released one year prior. Mendelson’s article was only referenced by Kirby J and was used to support an interpretation of other extrinsic referendum materials.52 Sawer’s article was referenced more widely and was used by the majority to consider the indirect intention of the amendment. Further, despite not referencing Sawer’s article in his judgment, McHugh J placed weight on the article in the proceedings:

McHugh J: … that was the point that Professor Sawer was making in 1966, that it would be better to repeal the whole section, or the whole paragraph

Spigelman: Professor Sawer, whilst one can use him is not to be used in the same way as Convention Debates in terms of intentions

McHugh J: Well, I am not sure about that. He was the leading constitutional scholar in this country in 1966.

The Court values the work of academics. In relation to the intent of the 1967 referendum, Kartinyeri considered Sawer’s article to be highly influential. With more expert groups being formed and a greater number of academic articles being written on future referenda, it is possible that when the next referendum is interpreted the Court will have even greater regard for the intent of experts. The publications of experts may be useful to resolve ambiguities in the meaning of the text. However, the same criticisms of executive intent can be applied to expert intent in so far as it does not represent the enactors’ intent. Nonetheless, it is an approach that the Court has accepted.

Future referenda

For future referenda, where there is ambiguity of the meaning of altered constitutional text, the High Court can and will consider extrinsic referenda materials to discern the intent of the legislature, the electors, the executive, and experts. In doing so, the Court will consider Second Reading Speeches and Parliamentary Debates, the ‘Yes / No’ pamphlets, Cabinet documents and advice from the Solicitor-General, and expert publications. However, the intent of these groups and the extrinsic referenda materials examined will not displace the text.

Therefore, those framing the amendment must, as far as possible, align the words with their intent. The framers must explain the intention behind the choice of words at the referendum and its likely constitutional effect. Further, intent must be made clear particularly in the documents that convey the enactors’ intent, these documents being the Second Reading Speech, subsequent Parliamentary Debates, and the ‘Yes / No’ pamphlet. If intent is more transparent in these documents, the effect will be two-fold. Firstly, the people will have a greater understanding of what they are voting on. Secondly, the Court will be able to more readily ascertain an intention to support a contemporary meaning of the provision that is more closely aligned to the objectives of s 128.

Referenda thaw our frozen Constitution through textual change and assist the High Court in discerning the future meaning of the text through extrinsic referenda materials. Ultimately, when the Court interprets the meaning of altered provisions, they should place more emphasis on the enactors’ intent in order to uphold the purpose of s 128.

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