Constitutional Interpretation: Engineers’ Case and criticisms of Callinan J in the Workchoices’ Case.
By Mark Walker
Introduction

In the dissenting judgment made by Callinan J in the landmark New South Wales v Commonwealth (“Workchoices’ Case”), a strong criticism was mounted against constitutional interpretation methods employed in the judicial forum. Explicitly, this conjecture was focused at Isaacs J’s judgement in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (“Engineers’ Case”), where a textualism approach to constitutional interpretation was adopted. Callinan J expressed the Engineers’ Case as “less than satisfactory”, using “detached language” to discredit its literal methodology of interpreting the constitution.
In the early years after its creation, the constitution was arguably a political document which was a codification of the distinct features, structure and purpose of governmental control within the Australian federation. Initially, the consideration in the judiciary of the framers’ intention behind constitutional principles was important to set a benchmark for its subsequent application. Furthermore, the early High Court judges were contributors to the constitutions formation and it was “necessary for them to make decisions about the meaning of the instrument they helped to create”. However, as time progressed there was a requirement for the document to be seen less as a political document and more a legal document which lawyers could effectively use. This is why vague inferences were deterred in favour of a more structured approach in the Engineers’ Case.

Consistency of the ‘golden rules’ of interpretation

Textualism through the ‘golden rules’ of statutory interpretation is a structured objective methodology, which can be easily, consistently and predictably applied within the constitution. The ‘golden rule’ of interpretation requires the construction of provisions to be read according to their natural and ordinary meaning, which in layman’s terms would be the way an ordinary person would give meaning to the provisions. Justice Gaudron is considered a strict structuralist, whose approach to “judicial power is that it must be exercised