title: The Australian Constitution, Originalism and the Dismissal
Creators: name: Long, David L
Publisher: name: Griffith University
Year: 2019
Subjects: subject: Sir John Kerr
subject: Sir Garfield Barwick
subject: Prime Minister
subject: Gough Whitlam
subject: Governor-General
subject: Chief Justice of the High Court
subject: Dismissal
subject: Constitution
subject: legal power

description: This thesis examines the separate legal reasons provided by both the then Governor-General, Sir John Kerr, and the then Chief Justice of the High Court, Sir Garfield Barwick, in justification of Kerr’s decision on 11 November 1975 to withdraw Prime Minister Gough Whitlam’s commission, in order to establish that the Governor-General did not possess the legal power to act in this way. It will establish that the Constitution drafted by the Founders at the 1897 Constitutional Convention implicitly contains a principle that requires a construing court to exercise a methodology of construction that reveals the meaning originally intended by the Founders as consented to by the people of the several colonies. The thesis examines the establishment and the deliberations of the delegates to the Convention that resulted in the draft Bill of the Commonwealth Constitution in order to establish the two elements of the political scheme that the Founders intended the Constitution to sustain: the federal distribution of powers similar to that of the US Constitution and responsible government. It argues that all these matters, considered in the context of the process of its ratification by the people of the colonies and the constitutional requirements for any changes, are evidence of a political imperative in the Constitution that its construction should seek the meaning originally intended by the Founders, being the one consented to by the people of the colonies in 1899. The thesis will examine the arguments advanced by Isaac Isaacs during the Constitutional Convention in opposition to the federal scheme required by the colonial statutes establishing the Convention for the draft Constitution. It will show that Isaacs wanted the Convention to approve a unitary political scheme for the Constitution, which was rejected by the delegates. An examination of the decisions of the early court will demonstrate that it adopted a construction methodology consistent with the original intention of the Founders to explicate the details of federal doctrines derived from the federal scheme of the US Constitution, the immunity of instrumentalities and the reserve powers of the states. This thesis will show that when he was appointed to the High Court, Isaac Isaacs implicitly rejected the methodology of original intent and the federal scheme of the early court and adopted a literalist methodology derived from legal positivist1 decisions of the Privy Council that, following the English jurist A.V. Dicey, distinguished between the legal text and the political scheme. It will examine the argument for the legal positivist methodology of construction and its common manifestation as literalism to determine its efficacy for constitutional interpretation and will examine Isaacs’ literalist construction of the Constitution in the majority judgment of the court in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd2 to show that it permitted him to reinterpret the text in isolation from the Constitution’s political scheme and therewith to abolish the federal scheme and impose his unitary scheme, enlarging the powers of the Commonwealth and abridging the powers of the states. Isaacs’ unitary Constitution reflected the proposal for which he had argued at the Convention. By examining selected High Court judgments of Sir Owen Dixon and Sir Garfield Barwick during their respective tenures on the High Court, the thesis will show that the legal positivist method of construction employed by Isaacs, which manifested as a literal interpretation of the text in isolation from the political scheme, was maintained by the High Court as the preeminent method of construction following the Engineers’ case. Barwick’s express endorsement of Isaacs’ judgment in the Engineers’ case indicated his adoption of that literalist methodology. When it examines the arguments advanced by Kerr and Barwick in defence of Kerr’s actions in November 1975, the thesis will show that each man construed the relevant provisions of the Constitution literally, and thus altered the practice of responsible government as understood and intended by the Founders to comply with their literal interpretation. Kerr and Barwick both introduced an implied term previously unremarked and absent from the Convention debates into the Constitution in order to infer a condition precedent to the actions of the Governor- General. The thesis will show that each posited a differently characterised discretionary, personal power in the Governor-General, which was explicitly rejected by the Founders. Their theoretical explanations of the Governor-General’s reserve powers will be shown to be inconsistent with the relevant terms of the Constitution.