656 [171], 635 [83] (Kirby J).
Goldsworthy, chapter note, 168–70.
The Implicit and the Implied in a Written Constitution
139
other laws.
126
Consider the extent to which judges should remedy failures on
the part of the constitution’s makers to expressly provide for problems. They
may have failed to anticipate a problem, because it was very unlikely to arise,
or because they were too busy, or insufficiently astute, to do so.
When interpreting statutes, judges are often reluctant to rectify failures of
that kind, preferring to leave it to the legislature to do so. But when dealing
with a constitution, it is arguable that they should be more willing to provide
a solution. If, because of the framers’ oversight, a constitution might fail to
achieve one of its main purposes, the potential consequences are grave. They
include the danger of constitutional powers being abused, of the democratic
process or the federal system being subverted, of human rights being egre-
giously violated and so on. If the constitution is extremely difficult to amend
formally or if amendment requires action by the very politicians who pose the
threat that needs to be checked, there may be good reasons for the judges to
act. True fidelity to the constitution might justify this.
As the great American jurist Learned Hand observed: ‘In construing writ-
ten documents it has always been thought proper to engraft upon the text
such provisions as are necessary to prevent the failure of the undertaking’. But
because this is ‘a dangerous liberty, not lightly to be resorted to’, it is essential
that the need be ‘compelling’ and the interpolated provision be confined ‘to
the need that evoked it’.
127
The upshot is this. A genuine structural implication is an implicit assump-
tion that satisfies the obviousness test. This is because, since the lawmakers
did not expressly mention it, they must be shown to have taken it for granted,
which requires that it was too obvious to need mentioning or perhaps even to
be noticed. A structural provision that satisfies the test of practical necessity
but not that of obviousness was presumably omitted because of some mistake
on the lawmakers’ part; they must have failed to appreciate either its necessity,
or the need expressly to mention it. The Court may be justified in correcting
that mistake, to ensure that the law is efficacious, by in effect inserting the
provision into it, provided that it does not violate any side constraint imposed
by the lawmakers’ other purposes or commitments.
128
But
if judges decide to
rectify a legal instrument, they should frankly acknowledge what they are
126
The following passage is derived from J. Goldsworthy, ‘Conclusions’, in J. Goldsworthy (ed.),
Interpreting Constitutions, a Comparative Study (Oxford: Oxford University Press, 2006)
321, 324.
127
L. Hand, The Bill of Rights (1958), 29; see also
ibid.
, 14 where he uses the term ‘interpolate’.
128
See the ‘caveat’ in Section
4.4.4
, paragraph in which note 75 appears.
140
Jeffrey Goldsworthy
doing and not hide behind make-believe implications, unless they are morally
justified by extraordinary circumstances in concealing what they are doing.
129
Arguably, it will often make little difference whether or not an implica-
tion is genuine or legitimately fabricated. Consider this example. Section 7
of the Australian Constitution empowers the federal Parliament to increase
or decrease the number of Senators for each state, subject to a guarantee that
‘equal representation of the several Original States shall be maintained’. This
guarantee of equality conspicuously fails to mention new states, which can be
established by the federal Parliament under s. 121, subject to ‘such terms and
conditions, including the extent of [their] representation in either House of
Parliament, as it thinks fit’. Does it follow that Parliament could give a new
state more Senators than the original states each have? That would obviously
violate what we know to be the intended role of the Senate: an undoubted
purpose of s. 121, when read with s. 7, was to enable new states to be given
fewer – but not more – Senators than the original states.
Is that an implicit assumption that was so obvious it ‘went without saying’,
or – if not – a fabricated implication that may legitimately be inserted into
s. 121, to restrict the words ‘as it thinks fit’, on the ground that this is practically
necessary to reconcile the purposes of these provisions? Perhaps it does not
matter how it is characterised.
4.6. Implications Inferred from ‘Objective’ Purposes
Aharon Barak maintains that constitutional implications can sometimes be
inferred from the ‘structure’ of a constitution, which is ‘the architecture under-
lying the constitutional scheme, the constitutional principles which support
this scheme, and their underlying assumptions’.
130
That is uncontroversial: we
have just discussed both genuine, and fabricated, structural implications. But
Barak also argues that the constitution’s underlying architecture, principles
and assumptions are best determined by seeking its ‘objective purpose’, which
is independent of the actual purposes of the constitution’s makers.
131
This con-
sists of ‘the goals, values, and principles that the constitutional text is designed
129
See Goldsworthy, chapter note, 183;
J. Goldsworthy ‘The Limits of Judicial Fidelity to Law:
The Coxford Lecture’ (2011) 24 Canadian Journal of Law and Jurisprudence 305; J. Goldswor-
thy ‘Should Judges Covertly Disobey the Law to Prevent Injustice?’ (2011) 47 Tulsa Law
Review 133.
130
A. Barak, ‘On Constitutional Implications and Constitutional Structure’ in D. Dyzenhaus
and M. Thorburn (eds.), Philosophical Foundations of Constitutional Law (Oxford: Oxford
University Press 2016) 53, 59.
131
Ibid.
, 54, 68.
