126
Jeffrey Goldsworthy
Judges are surely bound not only by the framers’ ends, but by the means they
chose to achieve those ends. That is why it has been said that the framers’
decisions about what to omit from the Constitution are entitled to as much
respect as their decisions about what to include.
61
Otherwise a constitution is
just a set of abstract objectives, which the judges can choose to implement
in any way they think fit, with no limit to the implications they can purport
to find. All the provisions of the Constitution could, collectively, be claimed
to instantiate such abstract principles as ‘democracy’, ‘freedom’ or even ‘jus-
tice’, and anything not mentioned that (in the opinion of the judges) helps
secure democracy, freedom or justice could then be regarded as impliedly
guaranteed.
62
This is why the quoted suggestion of Deane and Toohey JJ in Leeth was
utterly implausible.
63
We know that, although the framers of the Constitution
deliberately protected specific rights to equality, they did not intend to pro-
tect a general principle of equality. This is because they included provisions
designed to permit both racial and sexual discrimination,
64
and rejected a pro-
posed clause to guarantee equality in general partly because they did not wish
to proscribe racial discrimination.
65
When the provisions of a legal instrument expressly cover only some
instances of a potentially broader class, it is usually more plausible to infer
that its limited coverage was deliberate, and to ascribe to it an implicature that
excludes other instances of the class not expressly covered. As we have seen,
that implicature is expressed by the expressio unius presumption.
66
4.4.4. Implicit Assumptions, Supplementations and Qualifications
There is another kind of implication that I will refer to as an ‘implicit assump-
tion’. Consider these examples. A law states that at the conclusion of the evi-
dence for the complainant, ‘the defendant may address the court’; it does not
61
The Hon. M. Gleeson, The Rule of Law and the Constitution (Sydney: ABC Books, 2000) 70.
62
See Sinnott-Armstrong, Supra note 57, 241.
63
See note 59. See also Goldsworthy, chapter note, 181–2. J. Kirk, ‘Constitutional Implica-
tions (II): Doctrines of Equality and Representative Democracy’ (2001) 25
Melbourne Univer-
sity Law Rev 24, 31–43.
64
The Constitution of the Commonwealth of Australia s. 25, with respect to race, and s. 30, read
in the light of s. 41 and the third paragraph of s. 128, with respect to female suffrage.
65
L. Zines, Constitutional Change in the Commonwealth (Cambridge: Cambridge University
Press, 1991), 46.
66
Section
4.4.2
.
The Implicit and the Implied in a Written Constitution
127
state that the court must listen, but that is surely implied.
67
A law dealing with
restaurants states that they must have clean and well-maintained inside toilets.
It does not state that they must be accessible by the restaurant’s customers, but
again, that is surely implied.
68
A law confers a power on a government official,
but does not expressly require that the power not be exercised capriciously
or corruptly. That is surely taken for granted and in that sense is implicit or
implied.
69
In each example, an implication is inferred from the lawmaker’s obvious
purpose in uttering the express words, what is obviously needed to fulfil that
purpose and the likelihood that this is so obvious that the lawmaker took it for
granted or expected its intended audience to take it for granted.
There are other examples of implications based on similar inferences. One
is the venerable presumption that when a general power is conferred or gen-
eral duty imposed, whatever particular acts are necessary and incidental to
exercising the power or performing the duty are impliedly authorised.
70
An
example in constitutional law is the doctrine of implied incidental power,
which ever since Marshall CJ’s judgment in McCulloch v. Maryland
71
has
usually been regarded as justified not only by necessity, but by what is ‘appro-
priate and adapted’ or ‘incidental and ancillary’, to the exercise of the general
power.
72
Marshall CJ mentioned, for example, that implied powers to trans-
port the mail and to prohibit stealing it had been inferred from Congress’
express power ‘to establish post-offices and post-roads’.
73
The same principle applies to everyday requests and instructions, which
implicitly extend to many unmentioned actions that are incidental and appro-
priate in order to comply with them. For example, if I ask my son to ‘bring
some mustard’ to the dinner table, he may have to perform many instrumental
actions not mentioned, such as going to the kitchen, turning on the light,
opening the refrigerator door, shifting other items on the same shelf out of the
way and so on.
74
67
F. Bennion,
Statutory Interpretation, A Code, 2nd edn (London: Butterworths, 1992), 30.
Today, that obligation would be regarded as part of the implied requirement of natural justice.
68
Marmor, Supra note 25, 35.
69
See J. Goldsworthy, Parliamentary Sovereignty, Contemporary Debates (Cambridge:
Cambridge University Press, 2010), 281–5 esp 283. Of course, this depends on context: in a
society where official corruption is routine and tolerated, this might not be implied.
70
Scalia and Garner, Supra note 50, 192–4.
71
4 Wheat 316 (1819), 421.
72
See J. Stellios,
Zines’s The High Court and the Constitution 6th edn (Sydney: Federation Press,
2015), 48–9.
73
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