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The accepted view is that the Commonwealth Constitution contains a few provisions and

implications which protect rights. In light of Australian constitutional history, text and

structure, how convincing are these claims?

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Darwin and the Constitutional Giraffe: An Evolutionary Approach to

Constitutional Rights

Darwin’s theory of evolution is premised on ‘natural selection’, a process whereby

particular characteristics, in an organism, are selected for in response to external

environmental pressures. Applying these principles an evolutionary biologist can explain

the current traits of an organism by reference to the history of selective environmental

pressures it faced.

Sir Julian Huxley wrote that Darwin’s theory of evolution “is the most powerful idea that

has ever arisen on earth” and that “Darwin’s work…put the world of life into the domain

of natural law”1. In this essay I intend to apply Darwin’s ‘powerful idea’ to the domain

of constitutional law; in particular to the evolution of rights within the Australian

Constitution.

In the first section ‘creationism’ I will consider whether the constitution can be

convincingly viewed as protecting express or implied rights, applying traditional theories

of constitutional interpretation. In the second section ‘evolution’ I will apply Darwin’s

theory of evolution in order to construct the Constitution in a manner that allows

legitimate protection of rights.

Creationism

‘Creationism’ is used, in this essay, to describe the traditional methods of constitutional

interpretation employed by the High Court, more commonly known in the literature as

‘textualism’, ‘legalism’, ‘originalism’ and more recently ‘intentionalism’.

A creationist theory of constitutional interpretation provides that “the meaning of the

Constitution is to be found “from the words of the compact”2 Thus the meaning of the 1? Julian Huxley Evolutionary Humanism (Buffalo, N.Y.: Prometheus, 1992.)2 Engineers Case (1920) 28 CLR 129 at 142

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Constitution is fixed to the meaning it had at the time of creation, and this meaning may

only be changed by an act of divine intervention (s128 referendum). It should be noted

that ‘creationists’ allow some flexibility for applying the original meaning to changing

circumstances, employing a connotation-denotation argument where the connotation, or

meaning of a phrase is fixed, but the denotation, or facts to which it must be applied may

change thus allowing some flexibility for the original meaning to be applied in changing

circumstances3. Justice Kirby argues that “resort to formula such as…’connotation and

denotation’ may sometimes disguise rather than clarify the real reasons why one choice is

preferred in a particular case and another is rejected”4.

This approach appears to limit the scope for protection of rights, in the Constitution, to

those express in the text and may be extended to include rights implied from the text and

structure5.

Express rights?

Express rights are said to include s116 (free exercise of religion), s80 (trial by jury for

indictable Commonwealth offences), s51(xxxi) (acquisition of property on just terms)

and s117 (protection from discrimination by States based on place of residence)6. These

few express rights have traditionally been construed narrowly by the Court7.

For example in s80 ‘trial by jury’ has been interpreted as requiring a number of essential

attributes including representativeness, impartiality, randomness, measured group

deliberation, and the efficient administration of justice8. According to these attributes

‘trial by jury’ may protect an individual right to be tried by a jury that has these attributes

and a community entitlement to participate in the exercise of judicial power9. However 3 Jeffrey Goldsworthy Interpreting the Constitution in its Second Century 24 Melb. U. L. Rev. 677A common example of the application of this formula is in Sue v Hill where it was held that the meaning of ‘foreign power’ had not changed but that its application to Britain had ie the relationship between Australia and Britain had changed and it was now regarded as a foreign power4 Sue v Hill (1999) 163 ALR 6485 See for example Political Broadcasts Case (1992) 177 CLR 1066 Adrienne Stone Australia’s Constitutional Rights and the Problem of Interpretive Disagreement 27 Syd. L. Rev 30 20057 Geoffrey Kennett Individual Rights, the High Court and the Constitution 19 Melb. U. L. Rev 5818 James Stellios The Constitutional Jury ‘ A Bulwark of Liberty’? 27 Syd. L. Rev 1129 Ibid

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these substantive rights have been narrowly construed to operate only in circumstances

where Parliament prescribes that an offence is indictable; that is the Parliament can ‘opt

out’ by prescribing that an offence be tried summarily10. This result is incongruous with

a rights protective purpose for s8011. It may be argued, in light of this, and by reference

to its structural placement within the Constitution that s80 is better viewed as serving a

federal purpose12. Thus if viewed as a provision serving a federal purpose it does not

need to serve a rights protective purpose in order to have a constitutional function it may

however, serve a rights protective purpose in addition to its federal purpose13.

The structural placement of ss116 and 117 in Chapter IV of the Constitution may also

point toward a federal rather than rights protective purpose for these provisions, this view

is strengthened when the framers intentions are taken into account (discussed below).

Indeed s51(xxxi) which provides an express power for the Commonwealth to acquire

land limited by ‘on just terms’ may be seen as the only substantive individual rights

restriction on Commonwealth power.

Implied Rights?

There are generally two ways in which rights are implied from the text and structure of

the Constitution; they may be implied from representative and responsible government,

for example ‘freedom of political communication’, and those implied from the separation

of judicial power, for example the prevention of Parliament from ordering detention

without the intervention of the court14.

Implied rights do not sit easily within the creationist framework of constitutional

interpretation for a number of reasons. The Constitution does not include a bill of rights

and as Dawson J emphasised “the Constitution deals, almost without exception, with the

Note: that these attributes have been viewed as denoting participation by women and unpropertied persons which would not have not fit the conception in 1901 of a “right thinking man who could be trusted with the serious responsibilities of jury service” Kirby Brownlee 10 Ibid11 Ibid12 This argument is made in James Stellios The Constitutional Jury ‘ A Bulwark of Liberty’? 27 Syd. L. Rev 112 and will not be repeated here13 James Stellios The Constitutional Jury ‘ A Bulwark of Liberty’? 27 Syd. L. Rev 11214 Ibid Fn 6

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structure and relationship of government rather than with individual rights”15, resulting in

a presumption against implied rights. Further it may be argued that the express mention

of a few rights militates against the further implication of such protections16, noting that

this argument is weakened where such provisions are viewed as serving a federal rather

than rights protective purpose. An examination of the founders’ intentions serves to

strengthen the federal view of express provisions and at the same time strengthen the

presumption against implied rights.

The Framers Intentions

Following the High Courts decision in Cole v Whitfield17 the intention of the framers has

become a prominent factor within a creationist conception of constitutional

interpretation18. What then did the framers have to say about rights?

Geoffrey Kennett suggests that a ‘random dip into the…convention debates is more likely

to reveal intense debate about railways’ than philosophical discussion about individual

rights19. However the convention debates do show that the Australian framers did not

share the Americans lack of faith in parliamentary sovereignty20 and it was more often

suggested that constitutional guarantees of rights were both unnecessary; in that citizens

rights could be protected by Parliament and the common law, and dangerous; in that they

might prevent the enactment of reasonable and necessary laws21.

This sentiment is eloquently expressed by Harrison Moore writing 7 years after the

enactment of the constitution “Fervid declarations of individual right…are conspicuously

absent from the Constitution; the individual is deemed sufficiently protected by that share

in the government which the Constitution ensures him.”22 The framers appear to have

intended that representative and responsible government would protect rights in

15 Kruger (1997) 190 CLR 1, 6116 Jeremy Kirk Constitutional Implications (II): Doctrines of Equality and Democracy 25 Melb. U. L. Rev. 24 (2001)17 (1988) 165 CLR 36018 Fiona Wheeler Framing and Australian Constitutional Law (1997)3 Aust J Leg Hist 23719 Ibid Fn 7 20 Ibid 21 Jeffrey Goldsworthy Constitutional Protection ofRrights in Australia Australian Federation 15122 Harrison Moore The Constitution of the Commonwealth of Australia (Legal Books, Sydney 1997) p.612

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preference to the adoption of an express bill of rights. Thus it may be implausible to rely

on implications to protect rights where implication is held as a function of intention23

Where the framers did wish to confine the powers of Commonwealth Government it

appears that it was primarily in order to protect the autonomous government of the States,

protecting the federal structure rather than individual rights per se24. Goldsworthy

suggests that even ‘religious freedom’ guaranteed by s116 was intended to prevent the

Commonwealth from regulating religion in a manner contrary to that of the States25.

Thus it would appear that applying a creationist theory of interpretation a rights

protective function for the Constitution is unconvincing. In the next section I will

consider whether an evolutionary perspective allows a rights protective construction of

the Constitution.

Evolution

Inglis Clarke refers to the Australian Constitution as “a living force”26, the Privy Council

stated that the Canadian Constitution should be interpreted as “a living tree capable of

growth and expansion within its natural limits”27 and Marshall CJ asserted that a

constitution may be “…adapted to the various crises of human affairs”28. Thus there is

both historical and judicial authority for viewing a constitution as a living organism

capable of evolution.

Jeremy Kirk advances a theory of constitutional interpretation he terms ‘evolutionary

originalism’29. He acknowledges that there are good reasons to favour ‘originalism’

(creationism in this essay), as it “explains why a particular text is significant and non-

23 James Allan A Defence of the Status Quo Democratic Foundations 17524 Ibid Fn 2125 Ibid26 Inglis Clarke Studies in Australian Constitutional Law (Legal Books Sydney, 1997) p.2127 Edwards v Attorney General for Canada [1930] AC 124 at 136 quoted with approval by Evatt J in Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 114-11528 McCulloch v Maryland 4 Wheat 316 (1819) at 41529 Jeremy Kirk Constitutional Interpretation and Evolutionary Originalism 27 Fed L. Rev. 323 (1999)

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fortuitous, and provides some degree of predictability in the constructions it produces.”30

However he argues that “there is a practical imperative to ensure that constitutional

interpretation is not discordant with the needs, values, preferences, standards and

expectations of a changing society.”31 He contends that a good evolutionary argument

must start with the originally intended meaning of the text and take into account

developments in the understandings of the original ideas, changes in society including,

community needs, values and preferences, the general consequences of adopting one

interpretation over another, considerations of stare decisis and other common law

restrictions32 and democratic or other reasons for judicial constraint33.

Contrasting Kirk, a Darwinian evolutionary perspective the intention of a species has no

effect on its current form; for example: Giraffes will evolve long necks in response to

strong selective pressure requiring that they be able to eat leaves from tall trees regardless

of the subjective intention of each giraffe. Thus the text of the Constitution is understood

as a product of the selective pressures acting on it at the time of drafting and of the

selective pressures that operated on its ancestors.

Origin of the Species

The Australian constitutional system can be said to have evolved from two ancestors, the

British and United States constitutions34.

The British constitution went through its greatest period of development during its

seventeenth century transformation from a feudal order in which the king had an

overriding supremacy to a parliamentary democracy in which ultimate authority lay in the

elected representatives of the people35. Three pressures lead to this constitutional

30 Ibid at p. 35731 Ibid at p. 23732 Namely that developmental steps be incremental and in general, logically or analogically consistent with precedent33 Ibid Fn 2934 Ibid Fn 2135 Patrick Parkinson Tradition and Change in Australian Law 2nd ed (LBC information services, Sydney 2001)

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transformation; the tension between the courts and Parliament, the courts and the Crown

and the Parliament and the Crown36.

The first two tensions are evidenced by Chief Justice Coke’s statements that; under the

common law, acts of Parliament could be held invalid if they were ‘against common right

and reason’37 and “…the King hath no prerogative but that which the law of the land

allows him”38. These pressures selected for a constitutional system in which law making

power could only be exercised in accordance with the rule of law, and for the

independence of the judiciary39.

The tension between Parliamentary exercise of power and the King’s arbitrary exercise of

power resulted in the adoption of a constitutional monarchy in which Parliament was to

be sovereign, the legitimacy of which depended on the doctrine of representative and

responsible government.

Up until 1776 the British Parliament ruled America as a colonial State thus many of the

Acts it passed with respect to it America were in pursuit of British rather than colonial

American interests. A number of such Acts stirred anger in the colonies and directly

contributed to the start of the Revolutionary War and the Declaration of Independence

which state that “all men are created equal and endowed by their creator with rights to

life, liberty and the pursuit of happiness. To protect those rights, men organised

governments; and the governments derived their powers from the consent of the

governed. But when a government ceased to preserve the rights, it was the duty of the

people to change the government…”40 such sentiments led to the enactment of the Bill of

Rights in 1791.

Thus the selective pressures leading to British parliamentary sovereignty and responsible

government arose out of the need to protect against the exercise of arbitrary power over

36 Ibid37 Dr Bonham’s Case (1610) 8 Co Rep 107a at 118a 77 ER 63838 Case of Proclamations (1611) 12 Co Rep 74 at 76; ER 135239 Ibid Fn 3540 As quoted in World Book Encyclopeadia Volume 20 (1990 USA)

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the people by making the legitimacy of parliament subject to the will of the people. In

contrast the American system for protecting rights arose in an atmosphere of fear; fear of

parliamentary tyranny41. Whilst federalism in the United States was driven largely by the

economic interest in having a central government along with the need to recognise the

interests of individual states.

In Australia, the Constitution, “resulted not from violent struggle against a feared and

hated imperial government but from calm, pragmatic reforms assisted by Britain, which

had never forgotten the lessons learned from the revolt of its American colonies”42.

Federation came about from “the desirability of unified action in matters of common

concern, overarched by a sense of common destiny”43.

Thus federalism may be seen as the strongest selective force operating on the

development of the Australian Constitution. As a consequence federalism is the most

overtly expressed characteristic in the text and structure of the Constitution in much the

same way as the Giraffes long neck is its’ most overtly expressed characteristic. Whilst

parliamentary sovereignty encompassing representative and responsible government was

retained in its ancestral British form because, unlike the situation in America, there was

no negative selection against it.

Viewed in this manner, the meaning of the text of the Constitution may be ‘set free’44

from the original intent of the framers, its meaning to be determined by reference to the

evolutionary history of its expressed principles and allowing for adaptation of such terms

and principles in response to contemporary selective pressures. Contemporary selective

pressures could be legitimately discovered applying Jeremy Kirks framework for

evolutionary argument, as set out above, although without the requirement of starting

with the original intention.

41 Stephen Gageler Foundations of Australian Federalism and the Role of Judicial Review 17 Fed. L. Rev. 162 (1987)42 Ibid Fn 21 at p.15243 Ibid Fn 4144 Justice Michael Kirby Constitutional Interpretation and Original Intent: a Form of Ancestor Worship? 24 Melb. U. L. Rev. 1 (2000)

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Consequences of an evolutionary construction for rights protection

The first consequence is that where an express provision is seen to have evolved in

response to selective pressures associated with federalism this will not preclude such a

provision from taking on an additional rights protective purpose so long as such a

purpose may be seen to have legitimately evolved from the text of that provision. Thus

for example s80 may be interpreted as having evolved substantive rights protection under

the selective pressure of both internal and international selective pressures to guarantee

due process in circumstances where a person may be deprived of liberty.

The second consequence is that rights no longer need to be artificially implied from

constitutional text and structure interpreted according to its original meaning. They may

be seen to have legitimately evolved according to the contemporary meaning of

principles such as representative and responsible government that are entrenched within

the constitution. For example representative democracy is constitutionally entrenched

and freedom of political communication is essential to the effective operation of this

system of government45 it thus such a constitution could not have evolved without

evolving protection for this requirement. The argument is almost identical to one based

on implication but it does not have to contend with intentional presumptions against

rights protection.

Finally and perhaps most controversially, it may be argued along with, parliamentary

sovereignty, legitimated by representative and responsible government, the Australian

Constitution inherited foundational characteristics, as developed by the common law,

upon which these British conceptions were based46. In the Communist Party Case47 Sir

Owen Dixon provides that “[the Constitution] is an instrument framed in accordance with

many traditional conceptions, to some of which it gives effect…others of which are

simply assumed. Among these I think that it may fairly be said that the rule of law forms

45 Ibid Fn 1646 Ibid Fn 2947 Australian Communist Party v Commonwealth (1951) CLR 1 at 193

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an assumption.” Indeed Dicey, an influential proponent of parliamentary sovereignty and

responsible government attributes the ‘rule of law’ fundamental constitutional status.

Adrienne Stone acknowledges that the ‘rule of law’ is a complex and contested ideal, the

precise content of which is unclear but argues that “a procedural conception of the ideal

might impose limitations like those imposed by ‘due process’ guarantees and…that

limitations on rights be ‘prescribed by law’.”48 Further that a ‘substantive’ conception

may require “law to conform to some set of substantive moral criteria…resembling rights

of equality or freedom of speech”49. The rule of law may thereby fulfil “a function

similar to that performed in other countries by a formal bill of rights”.50

Application of the ‘rule of law’ by the High Court has been inconsistent and infrequent

with some judges restricting it to requiring the observance of express limits on legislative

power51 and others giving it normative value, providing that a law could infringe the rule

of law due to its content52. If the rule of law were to be given normative value it could be

seen as a constitutionally entrenched evolutionary organ on which the selective pressure

of international human rights could legitimately act on53 establishing a functional bill of

rights in the Constitution.

Conclusion

The accepted view that the Australian Constitution contains a few provisions and

implications that protect rights is unconvincing when traditional methods of

constitutional interpretation are applied. However an evolutionary construction of the

Constitution applying Darwin’s powerful concept of natural selection provides a

convincing framework upon which the Constitution may protect rights.

48 Adrienne Stone Australia’s Constitutional Rights p. 3649 Ibid50 T. Allan Legislative Supremacy and the Rule of Law at 135-13651 McHugh and Gummow JJ in Re Minister (in Adrienne Stone)52 Gummow and Hayne JJ in Katinyeri (in Adrienne Stone)53 See for explanation of this technique Ibid Fn 44

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