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particularly to the drawing of constitutional implications.
87
The majority was
particularly critical of the variable, subjective, inconsistent and uncertain
nature of the earlier implications as drawn by different judges, noting, for
example, that implications drawn from the principle of ‘necessity’ were ‘refer-
able to no more definite standard than the personal opinion of the Judge who
declares it’.
88
The Court suggested that the only ‘safe course’ in interpreting
the Constitution was ‘to read its language’ like any ordinary statute – that is,
according to its ordinary and natural meaning, and not by reference to any
general theory of constitutional interpretation, which depended on individ-
ual judges’ ‘hopes and expectations respecting vague external conditions’, or
‘implications formed on a vague individual conception of the spirit of the
[Constitution as a political] compact’.
89
The legal orthodoxy in Australia since Engineers’ has generally been to
accept the correctness of the Court’s reasoning in these terms, rather than
to insist on reinterpreting it in more historically specific terms. This, in turn,
has perpetuated a strong emphasis on legalistic approaches to constitutional
interpretation, which are firmly grounded in the ‘text and structure’ of the
Constitution, and a wariness of broad forms of constitutional implication,
which are more directly founded on value-based, and thus more subjective,
constitutional arguments.
In the 1980s and early 1990s during Sir Anthony Mason’s tenure as Chief
Justice, the High Court sought – to some degree – to challenge this orthodoxy,
by encouraging a more transparent, policy-oriented approach to constitu-
tional reasoning.
90
In cases such as ACTV, the Court also relied on a more of
substantive form of constitutional reasoning to support the development of the
implied freedom of political communication to protect political democracy.
The Court, however, did not create anything like a complete shift in prevailing
legal-cultural understandings or orthodoxies. As Theunis Roux notes, while
the Court was operating against the backdrop of important legal changes,
such as the Australia Acts 1986 and an increasingly globalising legal commu-
nity, there were no major external legal or political changes during this period
sufficient to fundamentally reshape prior legal orthodoxies.
91
87
(1920) 28 CLR 129, 148 (Knox CJ, Isaacs, Rich and Starke JJ).
88
Ibid.
, 142 (Knox CJ, Isaacs, Rich and Starke JJ).
89
Ibid.
, 145, 19 (Knox CJ, Isaacs, Rich and Starke JJ).
90
Leslie Zines, ‘Sir Anthony Mason’ (2000) 28 Federal Law Review 171.
91
Theunis Roux, ‘Re-interpreting “the Mason Court Revolution”: An Historical Institutionalist
Account of Judge-Driven Constitutional Transformation in Australia’ (2015) 43 Federal Law
Review 1.
364
Rosalind Dixon and Gabrielle Appleby
A historically specific factor during this period of potentially fundamen-
tal change that militated against any seismic shift in Australia’s legal-cultural
orthodoxy was, at least for several members of the Court, the relatively recent
attempts by Justice Lionel Murphy to expand the scope of implied rights under
the Constitution. The freshness of Murphy J’s legacy at this crucial juncture
made it more difficult, both psychologically and politically, for the Court to
adopt such an approach. Murphy, a justice of the Court between 1975 and
1986, was a former Labor Attorney-General and an important actor in Prime
Minister Gough Whitlam’s reform agenda. During his political tenure he had
sought to introduce a statutory bill of rights. When he was appointed to the
Court he quickly asserted a broad range of implied constitutional right protec-
tions, very similar to those contained in his proposed statutory bills of rights.
92
In doing so, he made little attempt to ground those assertions in processes
of orthodox legal reasoning, thus attracting the ire of traditional Australian
constitutional commentators, practitioners and judges.
93
Over time, Murphy
J also became mired in significant personal controversy.
94
The combination
of Murphy J’s political background, unorthodox legal reasoning and personal
controversy also arguably contributed to other justices of the Court distancing
themselves, both at the time and in later years, from an approach that in any
way resembled that of Murphy J.
95
In Miller v. TCN Channel Nine Pty Ltd, for example, Mason J explicitly
rejected Murphy J’s suggestion that the Constitution contains an implied
common law-style bill of rights, suggesting he could not ‘find any basis for
implying a new section 92A into the Constitution’.
96
And in later cases, such
as ACTV, where the Mason Court itself identified the implied freedom of
political communication, the majority was quite careful to delimit the scope
of such an implication, suggesting that structural implications of this kind
92
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