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Jeffrey Goldsworthy
I instruct my son to stay at home and finish his homework, is this subject to
implicit exceptions permitting him to leave the house if a fire starts or if his
mother is rushed to hospital having a heart attack?
As to the first case, Larry Alexander and Emily Sherwin argue that to refuse
to shout ‘Fire!’ because of the rule would be to misunderstand it.
No one could reasonably believe that [the rule-maker] intended silence in
such a circumstance. Although his words do not expressly except situations
like [this], the context of the rule makes it clear that it is not intended to cover
warnings of imminent danger . . . In reaching [this conclusion] we inevitably
are referring to the purpose of the rule: the reason we believe [this case is]
excluded is that [it is] too remote from [the rule-maker’s] aim.
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They cite several other legal theorists whose intuitions are similar.
83
Kent
Greenawalt agrees, arguing that:
We do not commonly think that instructions framed in general words reach
situations in which no one would want or expect them to apply. The instruc-
tion ‘Go to your room and stay there for fifteen minutes’ does not mean a
girl should stay in her room if a fire breaks out or a bear enters her window.
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As Ronald Dworkin put it, ‘It is a perfectly familiar speech practice not to include,
even in quite specific instructions, all the qualifications one would accept or
insist on: all the qualifications, as one might put it, that “go without saying”.’
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Constitutional provisions can give rise to the same issue. Section 117 of
the Australian Constitution provides that a resident in one State ‘shall not be
subject in any other State to any disability or discrimination’ that would not
equally apply to him if he were a resident in that other State. But does this
require every State to allow temporary interstate visitors to vote in an elec-
tion of its State Parliament? That would seem to be an absurd consequence.
It might be avoided by construing the words ‘disability or discrimination’ so
as not to include any differential treatment that is justified all things consid-
ered, but in the case of ‘disability’ this seems implausible, and so far only one
82
L. Alexander and E. Sherwin, The Rule of Rules: Morality, Rules and the Dilemmas of Law
(Durham, NC: Duke University Press, 2001), 114–15. See also R. H. Fallon Jr., ‘The Meaning of
Legal “Meaning” and Its Implications for Theories of Legal Interpretation’ (2015) 82 University
of Chicago Law Review 1235, 1260–1.
83
Alexander and Sherwin, Supra note 82.
84
K. Greenawalt, Statutory and Common Law Interpretation (New York, NY: Oxford University
Press, 2013), 103; see also 308, note 52.
85
R. Dworkin, ‘Reflections on Fidelity’ (1997) 65 Fordham Law Rev 1799 1816. For discussion see
J. Goldsworthy, ‘Dworkin as an Originalist’ (2000) 17 Constitutional Commentary 49.
The Implicit and the Implied in a Written Constitution
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or possibly two High Court Justices have taken that view.
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The alternative,
apparently favoured by the other judges, is to regard the prohibition as subject
to unexpressed, implicit exceptions inherent in the structure of government
set out elsewhere in the Constitution.
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The High Court has also struggled to explain why the requirement in
s. 51(xxxi) of the Constitution, that the Commonwealth Parliament must provide
‘just terms’ in order to compulsorily acquire property from any person or State,
does not apply to some kinds of compulsory acquisitions, such as taxation, fines
and forfeitures of illegally obtained property, property used for an illegal pur-
pose or enemy property. The Court could regard the ‘just terms’ requirement
as being satisfied in these circumstances, but that might mean that the Court
would always have to evaluate the fairness of taxes, fines and so on. Instead, the
Court seems to regard the requirement – and possibly the term ‘compulsory
acquisition’ – as limited by implicit assumptions and therefore inapplicable.
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Another example concerns s. 44 of the Constitution, which relevantly
provides: “Any person who (1) Is . . . a subject or a citizen or entitled to the
rights or privileges of a subject or citizen of a foreign power . . . shall be inca-
pable of being chosen or of sitting as a senator or a member of the House of
Representatives.” What if a “foreign power” passed a law conferring its citi-
zenship on all Australians, and made it impossible for them to renounce it?
Interpreted literally, s. 44 (1) would then make it also impossible for them
ever to be elected or to sit as members of their national Parliament, bringing
Australia’s system of representative government to a halt. Because that would
be too absurd to contemplate, the High Court has accepted that there is an
implicit qualification in s 44(i) that the foreign law conferring foreign cit-
izenship must be consistent with the constitutional imperative underlying
that provision, namely, that an Australian citizen not be prevented by foreign
law from participation in representative government where it can be demon-
strated that the person has taken all steps that are reasonably required by the
foreign law to renounce his or her foreign citizenship.
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I have in previous work relied on John Searle’s argument that the meaning
of every utterance depends on tacit background assumptions that are taken
86
Gaudron J and possibly Deane J in Street v. Queensland Bar Association (1989) 168 CLR 461,
570–3 and 528–9 respectively; see A. Simpson, ‘The High Court’s Conception of Discrimina-
tion: Origins, Applications and Implications’ (2007) 29 Sydney Law Review 263, 284.
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Street (1989) 168 CLR 461, 491–3 (Mason CJ), 512–14 (Brennan J), 546–8 (Dawson J), 559–60
(Toohey J), and 583–4 (McHugh J).
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Stellios, Supra note 72, 620–1.
89
Re Canavan and others [2017] HCA 45, paras 13 and 43–6.
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