2018 Winterton Lecture: Constitutional interpretation

• Author: James Edelman
• Position: Justice of the High Court of Australia; Adjunct Professor, University of New South Wales, University of Queensland, and University of Western Australia. This is a revised and edited version of the 2018 Winterton lecture hosted by the University of Western Australia
• Pages: 1-30

2018 WINTERTON LECTURE

CONSTITUTIONAL INTERPRETATION

JAMES EDELMAN∗

I INTRODUCTION

In Molière's The Bourgeois Gentleman, Monsieur Jordain is learning from his

philosophy tutor. His tutor explains the meaning of prose. Monsieur Jourdain asks

his tutor, "When I say, 'Nicole, bring me my slippers, and give me my nightcap,'

that’s prose?" His tutor replies, "Yes, Sir". Monsieur Jourdain responds, "By my

faith! For more than forty years now I have been speaking prose without knowing

anything about it".1

George Winterton was not like Monsieur Jourdain. The depth of his work was

due to his awareness of the history and the philosophy of the language in which he

was speaking. My late, and very dear, friend Peter Johnston2 was part of a small

group of exceptional public lawyers whose members included George Winterton.

Occasionally, after an off-the-cuff opinion from me, he would say, "I think George

has written something about that". In his usual polite way, he was directing me to

a far more sophisticated exploration of the history or theory of the issue by George

Winterton. The area of law about which I will speak this evening is one about

which George Winterton had thought deeply. That area is the interpretation of

constitutional words.

Although my focus is upon a basic dimension of interpretation of words in a

written Constitution, I want to draw out the strands of an approach that has been

taken by many judges in Australia and to explore its theoretical foundations. The

approach is far from the only approach to constitutional interpretation. But it is

useful to explore its foundations, and to see if it can be justified, because it is one

that has been taken expressly by many judges and practitioners. Like Monsieur

Jourdain, many lawyers adopt this method without knowing it.

The basic point of the theory considered here is that the core of constitutional

interpretation involves a theory of language. As a theory of language it is not

limited to the words of a Constitution. The same approach is taken when we try to

understand the meaning of any words. The context might differ but the primary

∗ Justice of the High Court of Australia; Adjunct Professor, University of New South Wales, University of

Queensland, and University of Western Australia. This is a revised and edited version of the 2018

Winterton lecture hosted by the University of Western Australia.

1 Jones (trans) Molière, Th e Middle Class Gentleman (Le Bourgeois Gentilhomme), 2008, Act II, Scene

IV, available at <http://www.gutenberg.org/files/2992/2992-h/2992-h.htm>.

2 Professor Peter Johnston, who died in 2014, was a distinguished lawyer and acad emic, being associated

with the University of Western Australia Law School for more than 50 years. See Ro bert French, ‘Peter

Johnston's Contribution to Public Law in Western Australia’ (2015) 39(2) University of Western Australia

Law Review 11.

University of Western Australia Law Review Vol 45(1):1

2

dimension of theory for understanding the meaning of written words in a

Constitution is broadly the same as that for a contract, a specialty, a trust deed, a

will, a statute, or even a conversation. For many lawyers, in day to day practice,

this is the theory that they apply from ordinary experience without always knowing

it.

I begin with some basic terminological distinctions. The terminology used

here is far from universal. Indeed, I have previously used different language to

express these distinctions. The language merely points to a difference in concept.

The distinctions that I make, following sophisticated accounts of interpretation

dating back to the 19th century, draw a divide between "interpretation" and

"construction". Within interpretation, a further division is between semantic

interpretation and contextual interpretation. As to construction, there may also be

two concepts that are conflated in the single label. Those concepts might be

separated by speaking of the meaning applied in the process of construction

separately from the meaning applied in the process of adjudication. However, my

central concern in this article is with interpretation.

II THE DIFFERENCE BETWEEN SEMANTIC INTERPRETATIO N AND

CONTEXTUAL INTERPRETATIO N

If words were considered acontextually the central factor for semantic

interpretation would be the literal meaning of the words. That literal meaning might

have a number of possible answers depending upon the context. So, a notice of

termination that refers to termination on January 12, 1995 might mean that

termination occurs immediately after midnight on the commencement of

12 January 1995. Or it might mean that termination occurs at the end of the day on

12 January 1995. Or it might mean midday on 12 January 1995. An interpreter

who was tasked only to translate these words into another language could

legitimately do so by words that had any of these connotations. But, as a matter of

semantic interpretation, one thing that 12 January 1995 does not mean is 13 January

1995.

However, interpretation, and the manner in which I describe it in this article,

is always contextual, although some matters of context might be excluded from

consideration in different contexts. Semantic meaning is a relevant consideration

in contextual interpretation in determining the reasonably intended meaning that

should be applied. It can be a very strong consideration in relation to instruments

drafted by lawyers. Nevertheless, there are many examples where legal instruments

have been interpreted to mean something beyond their semantic meaning. In

Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd3, the House of Lords

3 [1997] AC 749.